Kingdom of Epirus by the Judgement of his Father Pyrrhus having no lawful Issue Paus l. 1. The Tartars make no difference between Bastards and them that are Legitimate So Herodotus of the Persians Mos est illis ut Nothus regnet dum legitimus aliquis reperitur Who admit of Bastards till one that is legitimate may be found And we read in Justine of a Treaty between King Atheas and Philip concerning the Adopting of Philip to succeed him in the Kingdom of Scythia Jugurtha though a Bastard Salust bell Jugurth yet succeeded in the Kingdom of Numidia by Adoption The like we read of those Kingdoms which the Goths and Lombards conquered that the succession often passed by Adoption Nay Paul Diac. l. 6. de gest Longob the succession to the Kingdom shall pass to the nearest of kin to him that last possest it though he were nothing of kin to the first King If any such succession be in force in those places Thus did Mithridates in Justine plead That Paphlagonia became his Fathers Inheritance by the death of all its domestick Kings XIII In Kingdoms that are Indivisible the eldest succeeds But in case express caution be given that the Kingdom shall not be divided and yet it be not exprest who shall succeed then the Eldest whether Son or Daughter shall enjoy the Kingdom So saith Nicetas Coniates Nature indeed observing her own order gives the greatest honour to the first-born But God hath a Prerogative above Nature and acts not alwayes by her order And speaking of Isaacius he saith That by his birth-right the succession to the Kingdom was his The like is said of Hircanus in Josephus In the Talmud under the Title of Kings we read That he that hath the best title to an estate of inheritance hath also the best title to the possession of a Kingdom and therefore the eldest Son is alwayes preferred before the younger Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne And in another place he terms it the Law of Kingdoms Livy makes mention of two Brethren Allobrogi contending for a Kingdom whereof the younger had the worst Title but the greatest Power Of all Darius his Sons Artabazanes being the first-born claimed the Kingdom as his birth-right Quod Jus ordo nascendi Natura ipsa gentibus dedit Which Right saith Justine both the order of birth Lib. 2. and Nature it self hath given to Nations which in another place he calls the Law of Nations Lib. 40. As Livy also saith It is a priviledge due by the order both of Age and Nature yet must this be understood with this restriction unless the Father by his Testament do otherwise dispose of the succession as Ptolomy in Justin did his Kingdom to his youngest Son But yet he that shall thus succeed is bound to gratifie his Brethren for their shares with all respect and honour if and as far forth as he shall be able to do it XIV A Kingdom by the peoples consent hereditary if in doubt is presumed to be indivisible But those Kingdoms that by the Peoples free consent are made hereditary may by guessing at the will of the people be transferred Now because it may easily be presumed that the people will give their consent to that which is most expedient therefore in the first place it will follow That unless some Law or Custome do otherwise determine as in many it hath and may do the Kingdom should stand entire and undivided because whilest so it will be the better able both to defend it self and to conserve the people in peace and unity Lib. 21. A Kingdom united is stronger than when divided Of this opinion was Justin Firmius futurum esse regnum si penes unum remansisset quam si portionibus inter filios divideretur arbitrabantur They judged that the Empire would be more firm being intirely possest by one than it could possibly be if divided amongst many Sons XV. The succession not to last beyond the line of the first King Again It being granted that the peoples consent is easily gained to what shall be most expedient it will in the next place follow That the succession should descend from the first King in a right line Because that Family was then electeed as being thought the most Noble which Family being extinct the Kingdom doth return back to the people Thus Curtius adviseth * Lib. 8. That the Soveraign Power be strongly fixt to one Royal Family which ought to claim by an hereditary Right For the people being so accustomed will not only reverence his person but will have the very name of their King in great esteem And therefore no man ought to usurp that dignity but he that was born unto it XVI Natural Issue not concerned in it Thirdly It will thence likewise follow That none should be admitted to succeed in the Royal Throne but he that is born Legitimate Not the Natural Sons because they are subject to be reproacht to whose Mother the Father did never vouchsafe the honour of marriage And therefore of such there can be no certainty who was the Father But in the succession to Crowns the people ought to have the greatest assurance that in such a case can be given to avoid Controversies For which cause it was that the Macedonians preferred Demetrius the younger Son to the Throne rather than Perseus the elder because he was born in lawful Wedlock Not Sons by Adoption because the people are apt to conceive greater hopes and to have their Kings in greater esteem and veneration when they know them to be descended from a Royal Stock Est in Juvencis est in equis patrum Virtus In Horse and Oxe we may descry The Syre's Generosity XVII Males preferred before Females in the same degree Fourthly That of those that have equal Title to the Inheritance either as being in the same degree or as succeeding to their Parents who were in the same degree the Male Issue be preferred before the Female because Men are fitter for War and to administer other Regal duties than Women can be XVIII The elder before the younger Fifthly That of Sons or of Daughters if there be no Sons the elder be preferred before the younger because it may easily be believed that as he is of more years so he either then is or may sooner arrive to be of sounder Judgement than the younger So Cyrus in Xenophon Imperium relinquo majori Natu I bequeath my Kingdom to my Eldest Son as being of most experience and consequently best knowing how to govern And because our green years will sooner ripen than our Sex change therefore the prerogative of our Sex is much to be preferred before the priviledge of our Age. Wherefore Herodotus where he tells us Lib. 7. that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom gives this as the reason Because
Cepheus had no Male Children Lib. 4. And Diodorus assigns the same reason why Teuthras left the Kingdom of Misia unto his Daughter Argiope Because as to Male Issue he was childless And Justin tells us That the Empire of the Medes did of right belong to the Daughter of Astyages because Astyages had no Son So doth Cyaxares in Xenophon declare his Daughter Heiress to the Median Empire For saith he I have no Son that is legitimate So Virgil concerning King Latinus He had no Son no Issue Male was left In prime of youth Both being of Life bereft And by one Daughter this vast State possest Homer discoursing of the Kingdom of Crete Iliad n. doth very wisely assign the reason why in successions the Elder is commonly preferred before the younger namely first for their priority of Age Lib. 2. and secondly for their greater knowledge and experience Zozimus also mentions a Persian Law which gave their Empire to their Kings eldest Son Thus did Periander succeed his Father in the Kingdom of Corinth by order of Birth as Damascene testifies Whence we are given to understand that although the Children of deceased Parents in some degrees from them may succeed in the room of their Parents yet is it to be understood with this Proviso That they are as capable as the rest which Bastards are not Provided also That of such as are capable regard be had first to their Sex and then to their Age for the qualities of Sex and Age as they are in this case by the people considered are so adherent to their persons that they cannot be pluckt asunder XIX Whether such a Kingdom be part of an Inheritance But here it may be demanded Whether a Kingdom thus conveyed be a part of an Inheritance whereunto the most probable Answer is That it is a kind of an Inheritance yet separate from that of other Goods And therefore Innocent the Third thought that the succession to such a Kingdom might be lost if he who was to succeed did not fulfill the last Will of the deceased Such peculiar and separate Inheritances we may see in some Fee-Farms and Copyholds Fee-Farms and Copy-holds why first given which were originally given for the meliorating of Lands barren and desart under some small Rent which were not to return back to the Donor The like may be seen in the Rights of Patronages and Royalties Whence it follows That a Kingdom may belong to him who if he will may be heir to the Goods yet so that if he will he may also enjoy the Kingdom and not inherit the Goods nor subject himself to the charge that attends them Now the reason hereof is because it is probable that the Kingdom by the peoples consent should be setled on the King Why the people would have their Kingdoms hereditary in the best manner of Right that could be Neither did they much regard whether he would accept of the Inheritance or not since it was not for this that they made choice of an hereditary order but that the Title to the Kingdom might be clear and that their Kings being extracted from a Royal Stem might attract the more reverence from the people who were apt from their High Birth and Princely Education to conceive the greater hopes of their Heroick Vertues and that the Prince in possession might receive the greater encouragement to be careful of the Kingdom and with the greater Courage and Magnanimity to defend it as knowing that he was to leave it to such as were either in gratitude or love most endeared unto him XX. The succession to Kingdoms is the same as that to other estates Whether absolute But where the custome of succession to Lands absolutely free and to Lands held from another is diverse if the Kingdom be not held of another or was not at first certainly held although it do appear that homage hath been since done for it yet shall the succession by the Law go in such manner as the succession of Free-hold Lands went at such time when that Kingdom was at the first Instituted XXI Or held from another But in such Kingdoms as were at first given to be held from another as being the chief Lord of it the manner of succession shall by the Law be such as the succession to Lands held in Fee-Farm within that Kingdom was at such time as the Investiture into that Kingdom was at first given and that not alwayes according to that Law of the Lumbards which we have prescribed For the Goths Vandals Almains French Burgundians English Saxons and all the German Nations which have by War possest themselves of the best parts of the Roman Empire have every one of them their own Laws and Customs concerning things held in Fee as well as the Lumbards XXII Of a Lineal Cognatical succession and what manner of transmission of right is therein But there is another kind of succession much used in some Kingdoms not hereditary but as they call it lineal wherein is observed not that Right which is called Representative but a Right to transmit the future succession as though it were already conveyed the Law namely out of an hope which naturally and of it self worketh nothing raising a certain true Right namely such a Right as ariseth from a Conditional Stipulation which at present gives only an hope that it will be due which very hope they transmit unto the Children springing from the Loins of the first King but in an order that is certain so that in the first place the Children of the last possessor of the first degree as well of those that live as of those that are dead are to be admitted with regard had as well among the living as the dead to the Sex first and then to the Age. But if this Right descend on the deceased then this Right shall pass to such as are descended from them amongst equals alwayes observing the like prerogative of Sex and then of Age and the transmitting of the Right of the dead upon the living and of the living upon the dead And in case their children fail it descends unto those who are Cognatical succession or if they lived should have been by the like transmission next unto him the same distinction of Sex and Age among equalls being alwayes observed in the first Line so that no transition by reason of Sex or Age should be made from one Line to another so long as any remain of the first Line of what Sex or Age soever And consequently the Daughter of a Son shall be preferred before the Son of a Daughter and the Daughter of a Brother See Argentraeus in his Brittish History l. 6. c. 4. before the Son of a Sister so the Son of an elder Brother before the younger Brother This is the order of succession in the Kingdom of Castile and of Norway as Pontanus testifies in his Danish History and such is the succession in many Dutchies Counties and
should be left free to themselves unless some one hath already got the Dominion over them But as to Infants it is clear by another case for seeing that it is not permitted unto them freely to dispose of their own actions or to exercise that Right which belongs unto them by reason of the defect or immaturity of their judgments therefore they are committed to fit Guardians and Tutors XIII The Roman Empire not Universal And here I should hardly mention that absurd Title which some have given unto the Roman Emperour as if the Right of Empire over the remotest and as yet unknown parts of the World were already invested in him but that I find Bartolus who for a while was admired as the Prince of Civilians so daring as to pronounce that man an Heretick that should deny it namely because as well the Roman Emperours have sometimes stiled themselves Lords of the world as by the Council of Chalcedon it may appear as also because in the sacred story that Empire which later writers call Romania is by way of Eminency mentioned by the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the world as indeed many such hyperbolical expressions we shall meet with not only amongst Poets as Orbem jam totum Victor Romanus habebat The conquering Romans held the World in awe and the like which Empire though it contained not the sixth part of the then known world yet because it was the greatest and most eminent Empire in the world at that time it was by way of excellency stiled the Empire of the world Thus Philo I speak saith he De Legat. of many and those the most profitable parts of the earth which a man may by way of eminence call the world as it is bounded between those two great Rivers that of Euphrates and this of the Rhine But even in the holy Scriptures as when Judea only is by the like way of eminency called the whole earth and Jerusalem said to be seated in the midst of the earth i. e. of Judea For as St Hierome well observes Nomen terrae etiam addita particula omnis restringi debet ad eam regionem de qua sermo est This word the Earth though this particle All be added unto it ought to be restrained to the Countrey whereof we discourst So all the world is said to be taxed Luk. 2.1 that is all that was at that time under the Roman Jurisdiction And in this sense Delphos because it was seated on the midst of Greece is said to be Totius orbis umbilicus as it were the navel or midst of the whole earth Neither will it be very argumentative to say with Dante That it would be expedient for all mankind that the Roman Emperour should have such a right of Soveraignty seeing that Commoda quae adfert suis compensantur incommodis The conveniencies that it promises to bring with it would be attended with many more inconveniencies that would follow it For as a ship may be made of that extraordinary bulk and burthen that it cannot be well steered so an Empire may consist of so vast a multitude of Men and of Regions so diverse and so far distant as that no one man can possibly govern it Yea and if we should grant that it were so universally expedient yet would it not thence necessarily follow that this should actually confer a Right to the Roman Emperours because such a Right cannot possibly arise but either by consent or by way of punishment Neither hath the Roman Emperour a Right to all those Countries now which once belonged to his Predecessors for as many of them were got by Conquest so have they long since been lost by Conquest as some also have been quitted by Agreement others being deserted have fallen under the Jurisdiction of other Nations and Kings And some Cities which heretofore were wholly Subjects became afterwards but in part only or admitted into a social League upon terms only unequall For by all or any of these ways the Roman Empire as well as any other might either lose or change whatsoever Right they could formerly have or pretend unto XIV Nor the Pope But some there were that would challenge to themselves the power of the whole Church also even over those people who dwell in those parts of the world which are as yet unknown whereas St Paul himself openly professeth That without the bounds of Christianity he had no right to judge What have I to do saith he to judge those that are without 1 Cor. 5.12 And although that power which the Apostle had did in its manner appertain unto earthly things yet was not that power of Earthly but of Divine Institution and to be exercised not by weapons or scourges but by the Word of God generally preached and applyed to some particular circumstances and by exhibiting or denying the seals of the remission of sins as it should conduce to the salvation of every man And in the last place by a revenge supernatural and therefore proceeding from God himself as in the cases of Ananias Elymas Hymenaeus and others it evidently appeared Yea and our blessed Saviour himself from whom all Ecclesiastical Power flows and whose life was a perfect Exemplar or Copy for the Church to imitate Joh. 18.36 denied his Kingdom to be of this world that is of the same nature with other Kingdom adding this For if it were then after the manner of other Kings should my servants fight And yet even now in case he would pray to his Father to send him an Army it should consist not of Men but of Angels Mat. 26.53 And whatsoever he did by the Right of his own Power he did it not by humane strength but by the virtue of his Divinity and that even then when he drove the buyers and sellers out of the Temple the whip he used was not the Instrument of Gods wrath but the sign or symbol only so was the spittle and the oyl as Abulensis observes In Mat. 9. not the salve but the sign of the cure St Augustine upon that place of John before-cited thus proclaims Hearken therefore O ye Jews and Gentiles circumcised and uncircumcised And hear O ye Kingdoms of the Earth your Empires here I impede not for my Kingdom is not of this world Be ye not moved with vain fears as Herod the Great was at the report of Christs birth who was so far transported with jealousie that he slew a multitude of innocent Babes thinking thereby to secure his own Kingdoms by the death of this new born King Timendo potius quam irascendo crudelior being more enraged through fear and jealousie than anger My Kingdom saith he is not of this world What could have been said more to dispel those fears Come and be partakers with me of that Kingdom which is not of this world Come unto me by faith and let not your fears provoke you to cruelty So likewise Hilary Bishop of Arles Christ came
concerning such as have been by the chance of War made Slaves but as concerning the dedition of such who are not banished Lib. 2. c. 21. §. 3. seq but do fly to avoid condigne punishment we have elsewhere treated XLII War sometimes ended by lot To determine a War by lots is not always lawful but then only when we have an absolute propriety in the thing contended for for Cities are to be defended for the preservation of the Lives Goods Chastities and such like of their Citizens And Kings are more strictly bound to defend the general safety of their Kingdoms than to omit those means which for their own and others defence are most natural but yet in case he that is unjustly invaded shall upon due examination find himself too weak to â—ake any considerable resistance it may seem lawful for him to refer the quarrel to the chance of a lot that so by exposing himself to a danger that is uncertain he may avoid one that is certain of which two evils the lesser is to be chosen XLIII Whether it may be determined by the event of a set number of Combatants But here follows a case very much disputed namely Whether it be lawful to determine a War by the success of a Battel fought by an appointed number of Combatants as between on each side one as that between Turnus and Aeneas Menelaus and Paris or between on each side two as between the Aetolians and the Aelians or between on each side three as that between the Roman Horatii and the Aâ—ban Curatii or between on each side three hundred as that between the Lacedemonians and the Argives Whereunto I answer That if we look no farther than unto the Law of Nations which is external without doubt such a decision is lawful for by that Law every man may destroy his Enemy any way But if according to the opinion of the Ancient Grecians Romans and other Nations every man hath an absolute power over his own life then surely there is nothing therein repugnant to internal justice But this opinion as we have often said is contrary not only to right reason but to Gods precepts for to kill a man for his detaining of such things as we may well spare Lib. 2. c. 7. §. 12. lib. 2. c. 19. §. 5. c. 21. §. 1. is as we have already proved to transgress the rules of Charity Whereunto let us now add That if he to whom God hath given life as a blessing shall set so meanly by it as to cast it away for a trifle he sins both against God and his own Soul If the thing contended for be worthy of a War as if it be undertaken to preserve the lives of many innocent persons as Charles the fifth Emperour pretended when he challenged Francis the first King of France to a single Combat in this case we ought with all our power to endeavour it but to make use of a set Combat Aq. 2.2 c. 95. Aâ—t 8. ibi Cajetan either as a tryal of the goodness of our Cause or as an instrument of Divine judgment is vain and abhorrent from true Piety There is but one only case which renders such a Combate just and innocent and that too but on one side only which is when nothing can reasonably be expected but that he who maintains an unjust cause will otherwise be certainly the Victor and will prosecute his Victory to the destruction of a multitude of Innocents Now he that shall in this case adventure his life by any means whereby he conceives any probable hopes to prevail must needs be innocent or at least so reputed But yet we cannot deny but that many things though not exactly done yet may be by others if not well approved of yet permitted for the prevention of greater mischiefs which could not otherwise be avoided Like as in many places griping Usury and publick Stews are at this Day tolerated Wherefore in that case formerly put of two persons pretending with equal titles to one Kingdom which cannot be divided if they shall offer to try their fortunes in such a Combate the people may safely permit them for the prevention of a more general calamity which must otherwise necessarily ensue The like may be said where such a Combate may put an end to any bloody War Thus did Cyrus challenge the King of Assyria and Metius in Dionysius Halicarnassensis thus concludes That seeing that the contest did not concern the power or dignity of the Nation but of their Princes only it was but reasonable that they only who were concerned should decide the quarrel by Armes between themselves Thus did the Adrianopolitans answer Mahomet when he and Musa Zilebes contested for the Ottoman Empire And so we read of sundry challenges made by several Pretenders to one and the same Kingdom as of that which Charles the Fifth sent to Francis the first King of France and of many Duels fought in such Cases as that of Heraclius the Emperour with Cosroe Son to the King of Persia XLIV Whether the fact of a King do oblige the people Where also we must note That they that cast their Fortunes upon the Tryal of such Combates may haply lose their own Right if any they had to the thing contended for But they cannot transfer any Right to another unless the Kingdom contended for be Patrimonial And therefore for the confirmation of such Agreements the consent not only of the people but of such as have any Right to the Succession if there be any then born would be necessary And so it is the consent of the chief Lord in those Estates that are not free XLV Who is to be adjudged the Conqueror It is likewise frequently disputed where such Combats are permitted which is the conquering Party seeing that neither of them can be said to be absolutely conquered unless all the Combatants on one side be either killed or put to flight As in Livy * Lib. 3. Guic. lib. 1. he that forsaking his ground shall retreat either within his own Bounds or unto places of strength is said to be conquered Amongst those three famous Historians Herodotus Thucydides and Polybius we read of three Questions proposed concerning Victory the first whereof concerns this of set Combats But he that judiciously weighs it shall find that both Parties departed the Field without any true Victory Herod lib. 1. For the Argives were not put to flight by Othryades but marched away by Night stedfastly believing and as confidently proclaiming themselves Conquerours to their own Country-men Thucyd. lib. 1. Neither were the Corinthians routed by the Corcyreans but having fought it out gallantly and perceiving a strong Fleet of the Athenians near them without endangering their Forces with the Athenians they made a safe retreat But Philip King of Macedon having taken a single ship of Attalus forsaken by her Mariners though he were far enough from destroying his whole Fleet yet thereupon as
all the Cities Provinces Tributes and Prizes that should be taken in that War should be his Strabo tells us Lib. 8. That the Isle Cythara lying against Tenarus did belong to Euryclis one of the Lacedaemonian Princes in his own Right So we read that Solomon gave Hiram of Tyre twenty Cities not of those that belonged to the Hebrews 1 Kings 19. For Cabul which was the name imposed on those Cities was seated without the Hebrew bounds Jos 19.27 But out of those which the people that were enemies to the Jews 1 King 9.6 12. had held till the days of Solomon and were partly conquered by the King of Egypt and given unto Solomon in dowry with his daughter and partly conquered by Solomon himself For that these Cities were not at that time possest by the Hebrews is evident from this 1 Chron. 8.14 That as soon as King Hiram had restored them to Solomon he then planted in them a Colony of the Jews Diod. l. 4. So we read that Hercules gave the Kingdom of Sparta which he had conquered by arms unto Tindareus on this condition That if Hercules should have any children of his own she should restore it to them And having conquered the Epirots he gave them to Apollo So we read that Aegimus King of Doris Serv. ad 4. Aenead Apollod having called to his assistance Hercules in his War against the Lapithae gave him a part of that Kingdom as his reward Cychreus King of Salamine having no children left his Kingdom by his Testament unto Teucrus Amphipolis was given in a Marriage dowry to Acamantes the Son of Theseus And in Homer Agamemnon promises to give unto Achilles seven Cities So King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Vid. Serv. ad 6. Eclog. So again in Homer we read that Jobates gave his daughter to Bellerophon with a part of his Kingdom in Dowry And Justin tells us Lib. 5. That Darius bequeathed by his Testament his Kingdom to Artaxerxes but the Cities whereof he was governour only to Cyrus And probable it is That the successors of Alexander every one for his part did succeed him in that full Right of Governing the Nations which were either formerly under the Persian Empire or which they afterwards gained by the right of their own Conquests And therefore it is not to be wondred at that they claimed unto themselves the Right of Alienation So when King Attalus the Son of Eumenes had by his Testament made the people of Rome heir to all his goods they under the name of goods possessed themselves of his Kingdom whereof L. Florus speaks thus The Word Heir implying an Inheritance Lib. 2. Epit. Liv. 58. the people of Rome held his Kingdom as a Province and not as gained by War or by force of Arms But by what was yet more righteous by a Testamentary Right So when afterwards Nicomedes the King of Bithynia dying made the Romans his heir They presently reduced his Kingdom into the form of a Province Orat. 2. In Rullum Whereof Cicero thus We have added to our Inheritance the Kingdom of Bithynia So that part of Libia wherein the Cities Berenice Ptolomais and Cyrene stood was by King Appio given by Testament to the same people And Tacitus makes mention of some Fields Epitom Livy l. 43. Ann. l. 41. which belonging formerly to King Appio were by him left together with his Kingdom to the people of Rome Procopius likewise tells us That King Arsaces by his Testament divided the Kingdom of Armenia leaving the greater Armenia to Arsaces and the lesser to Tigranes And hence it was That King Herod having obtained from Aug. Caesar a Power to leave his Kingdom to which of his Sons he pleased Josephus was so often observed to alter his Testament This custom also was much in use amongst the Goths and Vandals Procopius in those Kingdoms which they held by Conquest The same we may observe much practised among the Turks Sultan Aladine bequeathed by his Will many Cities to Osman Leunclavius lib. 2. Bajazet also gave diverse of the Cities of Servia to Stephanus in favour to his own Wife being Sister to Stephanus Sultan Mahomet bequeathed his Kingdom by his Testament to Sultan Morat Idem lib. 4. and Mahomet the Turk intended to have divided his Empire and to have left the Asian Empire to Mustapha and the European to Amurat. This also was frequently used in many other Nations To rehearse them all would be no less troublesome to me than it would be tedious to the Reader But these may suffice to prove That where Kingdoms are held by a full and absolute Right they may be alienated Yet so That though the Right of Empire may be transferred yet doth every singular person enjoy his own Liberty XIII Some are held not so fully But in those Kingdoms wherein the people have any power by way of Election or Confirmation I confess it cannot be presumed That it was ever their Mind to suffer the King to alienate his Kingdom Wherefore what Crantzius observed in Vnguinus as an Act without any Precedent That he had by his Testament given away Norway we ought not to disapprove For haply he regarded only the Customs of the Germans amongst whom there was no such Right permitted as to bequeath Kingdoms For as Vopisâ—us in Tacitus saith Empires cannot be bequeathed as goods and bond-slaves may Nor can a King as Salvian observes by his Testament bequeath the people whom he hath governed to the poor Now whereas Charles the Great Lewis the Good and others afterwards among the Vandals and Hungarians are said to dispose of Kingdoms by their Testaments These afforded rather matter of praise among the people than argued the force of a true Alienation And as to that of Charles Ado makes special mention that he desired his Testament might be confirmed by the Peers of France The like we find in Livy concerning Philip King of Macedon who endeavouring to expel Persis out of his Kingdom and settle Antigonus his own Brothers son in it went throughout the Cities of Macedon solliciting the Princes on his behalf Neither is it to the purpose to object That the same Lewis restored the City of Rome to Pope Paschal Considering that the French having before received the Soveraignty over that City from the people might very well restore it back again to the same people in the person of the Pope being their chief Citizen and a Prince of the first order XIV Some power not Supreme yet fully held What we have hitherto admonisht namely That we are carefully to distinguish between the supreme power it self and the manner of holding it is so true That as many Soveraign Empires are not held by a fast and absolute Right so there are many that are not supreme that are fully and compleatly held whereby it falls out that Marquisates and Earldoms are much more easily either
sold or bequeathed by Testaments than Kingdoms are XV. This appears by the assigning Tutors and Protectors in Kingdoms There is also another mâ—rk whereby this distinction may be seen namely in the Tutâ—lage or Protection of Kiâ—â—â—oms when Kings and Princes are hindered or disabled either by some disease or thâ—â—â—gh old age or the like from performing their duty For where the Kingdom is not Pâ—trimonial the Protectorship is theirs to whom the publick Laws or if they are silent the people shall consign it But if the Kingdom be Patrimonial then to them whom the Father or the nearest of kin shall chuse Thus did Ptolomy King of Aegypt appoint by his Testament the people of Rome as Guardians to his Son who to perform that trust sent M. Aemilius Lepidus who was their Chief Priest Val. Mar. lib. 6. Tit. 6. c. 1. and had been twice Consul unto Alexandria to take care of the Government and of the Childs Education By whose care not only the Kingdom was preserved but the Child in his youth so well disciplin'd that it was hard to judge whether he received more glory by his Fathers great fortunes or by the Majesty of his Guardian So we read that in the Kingdom of Epirus which first depended on the suffrages of the people Tutors were publickly assigned unto their young King Ariba The like was done by the Nobility of Macedon to the Posthumous son of the Great Alexander But in Asia the Lesser which was gained by the Sword King Eumenes dying appointed his Brother Protector to his young son Attalus So did Hiero King of Sicily by his Testament constitute unto his son Hieronymus what Tutors he pleased But whether the King be also in his own private right Lord of the soil as the Kings of Aegypt were after the times of Joseph or as the Kings of the Inâ—ians were as Diodorus and Strabo testifie or whether they are not it makes no diffeâ—ence For these are extrinsick to the Empire and therefore can neither constitute another kind of Government nor alter any thing as to the manner of holding it XVI Soveraignty not lost by any promise made of any things which belong not to either the Law of God or Nature The Third observation shall be this That an Empire ceaseth not to be supreme though he that is to govern do by promise oblige himself either to his Subjects or to God unto such things as do properly appertain unto his manner of Government I mean not hâ—re such things as appertain to the Laws of God Nature or Nations For unto these every Prince stands obliged though he promise not But I mean though he do promise to confine his own power within certain Laws and Rules whereunto nothing can bind him but his oath or promise The Emperour Trajan did solemnly imprecate vengeance on his own head and right hand in case he knowingly failed in what he had promised And the Emperour Adrian sware that ye would never punish a Senator without a decree of the Senate Anastasius bound himself by oath to observe the decrees of the Synod of Chalcedon And all the Greek Emperours did likewise oblige themselves to observe the Canons and Constitutions of the Church But by none of these Oaths or Promises doth the Power of an Emperour cease to be supreme This may clearly be illustrated by comparing the power of a King with that of a Master in his own Family For although a Master do promise to observe such orders as he conceives to be most conducing to the welfare of it yet doth he not thereby cease to be supreme in his own Family Nor doth a husband cease to have power over his wife though he have obliged himself to the contrary by some promises that he hath made to her yet I must acknowledge that where such Oaths and Promises are made the soveraignty is thereby somewhat straitened whether the obligation do only restrain the exercise of the Act as that of Adrian's above-mentioned or the very power it self If it restrain the exercise only then the act that is done contrary to promise is sâ—id to be unjust because as we shall shew anon every promise gives a right to him to whom it was made But if it restrain the faculty it self then the Act will be void for wâ—nt of a Right or Faculty to do it And yet will it not necessarily follow that he thâ—â—â—â—us promiseth hath any power superiour to himself for his Act is not made void by any power above him but by very right Among the Persians no man can say but that their Kings were supreme and absolute in power and not liable to give an account as Plutarch testifies Nay their Kings were adored as Gods own Image and as Justin tells us were never changed but by Death He was a King indeed that said to the Nobles of Persia Ne viderer meo tantummodo usus consilio vos contraxi caeterum mementote parendum vobis magis quam suadendum Val. Max. lib. 9. c. 5. Lest I should be thought to govern by mine own counsels only I have called you together but otherwise remember that it is your duty rather to obey than to perswade And yet did this very King at his Coronation swear not to alter the Laws of that Kingdom made after such a form as both Xenophon and Diodorus testifie and as the Histories of Daniel and Plutarch in the life of Themistocles inform us Ch. 6 8 13 15. Pers l. 1. So Josephus tells us That Vashti could not be reconciled to the King because the Royal Decree was gone out which could not be broken And long after them Procopius confirms as much where we may read a notable example to this purpose The very same doth Diodorus Siculus relate of the Kings of Aethiopia and Aegypt who without doubt as all other Eastern Kings had in their respective Kingdoms absolute Power and yet were they all at their admission obliged to many things by Oaths or Promises Which if they performed not though whilest they lived they could not be questioned yet being dead their memories might be accused and being condemned their carcâ—sses might be denyed solemn Funeral This Apion records Civiliam 3. Leges Tyrannorum Corpora insepulta extra fines projici jubent The Laws saith he command the bodies of Tyrants to be cast out of their Territories unburied In obedience to the like Law the Emperour Andronicus deprived his own Father Michael of Christian Burial Gregoras l. 6. because he followed the Faith of the Latin Churches And such another Law there seemed to be amongst the Hebrews who would not permit the dead bodies of their wicked Kings to be interr'd among their good Kings The like we may find in Josephus concerning the two Jorams 2 Chr. 24.25 Ch. 28. 27. Jos Art l. 8. c. 3.5 the one King of Juda the other King of Israel By which excellent temperament of reverence and justice they both preserved the Majesty of
their Kings inviolable whilest they lived and also deterred them from breaking their oaths and promises by the fear of a dishonourable Interrment being dead The Kings of Epirus were wont to make oath That they would rule according to the Laws And their Subjects likewise bound themselves by Oaths to defend both him and the Kingdom according to the same Laws as Plutarch informs us in the life of Pyrrhus Nay further suppose a King should accept of his Kingdom upon these terms That in case he should falsifie his promise he should lose his Kingdom yet were his power supreme only the manner of holding it would be so much impaired by such a condition as would make that Government not much better than that which is Temporary It was said by Agatharchides concerning a King of the Sabaeans That he was not liable to give any account of his Actions as King and yet if ever he were seen out of his own Palace he might be stoned to death justly Which Strabo also notes out of Artemidorus So that Land which is held upon condition of some Trust to be performed is held as sully during the performance of that Trust as that which is held absolutely But yet it is possible that it may be lost and such a conditional Law may be added not only in conferring of a Kingdom but in any other Contract For some Leagues with our Neighbour Princes we see entred into under such penalties As in case a King being at his admission sworn shall break his Articles of Agreement his Subjects shall not help him no nor obey him So Crommerus testifies in his Treatise concerning the affairs of Poland Ch. 19 21. XVII It may sometimes be divided The Fourth thing is this That though the Soveraign Power be but one and of it self indivisible consisting of those parts above mentioned adding thereunto Supremacy that is the being accountable to none Yet it may so fall out that sometime it may be divided either by Parts which they call Potential or by Parts which they term Subjective As though the Roman Empire were but one entire thing yet it so sell out sometimes that one held the Eastern and another the Western part of it or that three sometimes divided the whole between them So also it may fall out that the People electing a King may reserve some Acts to themselves and transfer others to their King to be held in full Right Which notwithstanding is not done as I shewed before whensoever the King shall oblige himself by some promise But then only when either the Partition is expressly made as in the time of the Emperour Probus when it was agreed That the Senate should confirm the Princes Laws Vid. Gail lib. 2. Obs 157. and that they might take cognizance of Appeals appoint Proconsuls and give Legates unto the Consuls Or when the people being as yet free shall require it from him whom they chuse to be their King by way of a permanent Law or Precept Or if some such thing be added whereby it may plainly be understood that their King may be compelled or punished if he refuse To command argues a superiour but not to compel For a Precept or Command is commonly from a Superiour at least in that which is commanded but to compel doth not always argue a superiour For naturally every man hath power to compel his Debtor to do him justice but it is repugnant to the nature of an Inferiour And therefore from Compulsion there must naturally follow at least a parity and consequently a division of the Soveraign Power Many Allegations are usually brought against this bipartite state But as we have already said In civilibus nihil est quod omni ex parte incommodis caret Jus non quod optimum est huic aut illi videtur sed ex voluntate ejus unde jus oritur metiendum est In Civil matters it is not possible to provide against all Inconvenience no one Law can exactly fit every mans case no more than any one Shooe can fit every mans Foot neither is any thing accounted Right by seeming so to this or that person but by the will of him who was the Law-maker An excellent example of this is brought by Plato in the third Book of his Laws For when the Heraclidae had built Argus Lacedaemon and Messena they obliged their Kings to govern them according to Laws prescribed them which whilest they did the people also were obliged to continue their Kingdoms unto them and to their posterity and not to suffer any man to take them from them And for the better assurance of this Agreement not only the Kings bound themselves by Oath to their Subjects and the Subjects to their King but the Kings bound themselves each to other and the people of their respective Kings one to another and the Kings gave their faith to their neighbouring people and those people to their neighbouring Kings each King and people promising their mutual aid and assistance in defence of the Government established amongst them Many examples of this kind may be collected out of the Histories of our Northern Nations as in Johannes Magnus his History of Sweden and in Crantzius of the Swedes and Pontanus of the Danes XVIII Which is ill collected from this That some Princes will have their Acts confirmed by the Senate True it is that some Kings will not permit that some Acts of theirs shall be of force until they are confirmed by the Senate or some other Commissioners Yet he that shall hence inferr That there is a Partition of power will be mistaken For whatsoever Acts are thus rescinded ought to be understood as though they were made void by the King himself who by this means provides that nothing fraudulently gained from him shall pass to his disadvantage This was the scope of that Rescript sent by Antiochus the Third to his Magistrates That in case he commanded them to do any thing contrary to Law they should not obey him And of that of Constantine to his That Widows and Orphans should not be compelled to come for Judgement to the Court of the Emperour although the Emperours own Letters should be produced for it This is very like unto those Testaments unto which this clause is added That no Testament hereafter to be made shall be of force For such a Clause would have it believed that the latter Testament proceeded not from the will of the Testator But as that clause in the Will so the first Act of a Prince may by any after-Act of his or by any special Indication of his later Will be easily rescinded XIX Some other examples hither ill drawn Neither am I at all swayed by the authority of Polybius who would fain have the Romans to be a mixt Common-wealth which if we regard not so much the Acts themselves as the Power whereby they were done was doubtless at that time meerly popular For as well the Authority of the Senate which
Chrysostom When the Empire of the Jews began to decline and they made Tributaries to the Romans They neither enjoyed that full liberty which they did formerly nor were they in that pure subjection as now they are But were indeed honoured with the Title of Associates yet they paid Tribute to their Kings and received Governors from them Moreover they had the free use of their own Laws so that if any of their Countrymen offended they themselves punished them by their own Laws And yet I deny not but even this very acknowledgment of their own weakness and insufficiency doth somewhat abate and detract from the Majesty of their Empire XXIII Of such as hold their dominions in Feud But that which seems to some to be more difficultly to be answered is when one Prince holds his Dominion from another as being Lord of the Fief which yet may be sufficiently answered by what hath been said before For in this Contract which is peculiar to the German Nation and no where found but where they have planted themselves two things are especially to be observed 1. The personal Obligation 2. The Right in the Thing so held The Personal Obligation is the same whether a man possesseth the very Right of Soveraignty or any thing else though lying elsewhere by vertue of the Fief but such an Obligation as it takes not from a private man the right of Personal Liberty so neither doth it diminish any thing in a King or State of the Soveraignty which is Civil Liberty which is easily to be understood by those Lands which are called Free-holds which consist in Personal Obligations only but gives no right in the thing so held for these are no other than a species of that unequal League whereof we have discoursed before wherein the one promiseth Fealty and the other safeguard or protection But admit they do swear Faith and Allegiance against all men yet would this detract nothing from the Right of Soveraignty over their own Subjects Not at all in this place to mention that there are ever reserved in these Oaths a tacite Condition that the War be just whereof we shall treat elsewhere But as to the Right in the thihg so held it may be such that the very Right of Governing if held in the right of the Fief or Fee may be lost and so return unto him that gave it as well in case the Family be extinct as also for some notorious crimes and yet notwithstanding in the mean time it ceaseth not to be the Supreme Power For as I said before the thing it self is one thing and the manner of holding it is another And by this Right I find many Kings constituted by the Romans so that the Royal Family failing the Empire did escheat unto themselves as Strabo observes of Paphligonia and some others Lib. 12. XXIV A mans right distinguisht from the exercise of that right Lastly We must also distinguish as in Private Dominion so in Empire between the Right it self and the exercise of that Right or between the first act and the second For as a King though an Infant hath a Right to govern but is not permitted to exercise that Right so he that is mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the good of that Empire that is remote from him Vide Bo. 3. ch 20. §. 3. For in all such cases they have their Lieutenants or Viceroys to act for them wherefore Demetrius living under restraint with Seleucus did forbid any credit to be given to his Letters or unto his Seal Plut. Demetr but commanded that all things should be so governed as if he were dead CHAP. IV. Of a War made by Subjects against their Superiors I. The Question stated II. War against Superiors as such ordinarily unlawful This proved by the Law of Nature III. By the Hebrew Law IV. By the Gospel Law proved by Scriptures V. By the Practice of the Primitive Christians VI. For Inferior Magistrates to make War against the Supreme unlawful Proved by Reasons and Scriptures VII What is to be done in a case of extreme and inevitable Necessity VIII That a free People may make War against their Prince if he be accountable unto them IX And against a King who hath renounc'd his Kingdom X. Or who is about to alienate it as to the delivery of it only XI Or if a King do manifestly carry himself as a professed enemy against the whole Body of his people XII Or shall forfeit his Kingdom by a wilful breach of that condition upon which he was admitted unto the Empire XIII Or if having but one part of the Supreme Power he shall invade the other XIV Or if any such liberty of resistance be in such a case reserved unto the people at his admission XV. How far forth Obedience is due to him that usurps another mans dominions XVI An Vsurper may be killed the War continuing If no Faith nor Agreement be given or made to the contrary XVII Or if Licence be given by an Antecedent Law XVIII Or by warrant from him who hath Right to the Empire XIX Why an Vsurper is not to be killed but in these cases XX. In a controverted Right Private men are not to be Judges I. The Question stated PRivate Men may without doubt make war against private men as the Traveller against the Thief or Robber so may Soveraign Princes and States against Soveraign Princes as David against the King of the Ammonites Private men may make war against Princes if not their own as Abraham against the King of Babylon and his Neighbours so may Soveraign Princes against Private Men whether they be their own Subjects as David against Ishbosheth and his party or Strangers as the Romans against Pyrates The only doubt is whether any person or persons publick or private can make a lawful war against those that are set over them whether as supreme or as subordinate unto them And in the first place It is on all hands granted That they that are commissionated by the highest powers may make war against their Inferiors as Nehemiah did against Tobia and Sanballat by the Authority of Artaxerxes But whether it be lawful for Subjects to make war against those who have the Supreme Power over them or against such as act by and according to their Authority is the thing in question It is also by all good men acknowledged That if the Commands of a Prince shall manifestly contradict either the Law of Nature or the Divine Precepts they are not to be obeyed for the Apostles when they urged that Maxim Deo magis quam hominibus obediendum That God is rather to be obeyed than man Act. 4. unto such as forbad them to Preach in the name of Jesus did but appeal to a Principle of right reason which Nature had insculpt in every mans breast and which Plato expresseth in almost
Common-wealth may not only be by force resisted but if it be necessary may be punished with death As it befel Pausanias King of the Lacedaemonians of whom Plutarch thus The Spartans taking to heart the death of Lysander sentenced their King to death Plut. vit Lysand because leaving Lysander out of Cowardise whom he was sent to relieve he had fled for safety to Tegra The like he records in the life of Sylla The Spartans saith he deposed some of their Kings as being unfit for Government because they were of low and abject Spirits Yea and of Agis he reports That being their King yet was condemned though unjustly Now seeing that there were in Italy diverse such Kingdoms it is no marvel that Virgil having first recorded those many wicked Acts done by Mezentius adds Th' Hetrur'ans therefore all in a just rage To bring their Kings to Judgement do engage Of whom an old Hetrurian South-sayer spake thus Whom their just Woe Arms as against a Foe IX Or against King that hath renounced his Kingdom Secondly If a King or any other shall renounce his Empire or manifestly forsake it against such a Prince or King after that time any thing is lawful that may be done to a private man But this then we must observe That he that is careless and negligent only in his Government cannot thereby only be judged to have forsaken it X. Or against a King that would alienate his Kingdom Thirdly It was the opinion of Barkley That if a King would alienate his Kingdom or subject it to another he lost it But here I make a stand For if the Kingdom be Elective or descend by succession such an Act of Alienation is in it self null And whatsoever is in it self null can have no effects of a just Right Wherefore as also of that Kingdom that is barely usufructuary whereunto I have likened such a King the opinion of the Civilians is to me more probable That in yielding up his Kingdom to a stranger he confers nothing And whereas it is said that the fruits and profits revert to the Lord of the propriety It is to be understood after such a time as is prefixed by the Law Yet notwithstanding if a King shall really endeavour to deliver up or subject his Kingdom to another I doubt not but that in this case he may be resisted For Empire is one thing and the manner of holding that Empire another The alteration whereof the people may hinder for that is not comprehended under the notion of Empire Whereunto may that of Seneca be not unfitly applyed Although our Father be in all things to be obeyed yet not in those things wherein he ceaseth to be a Father XI Or a King that Invades the whole body of the people in an hostile way Fourthly as the same Barkley observes If a King shall endeavour with a mind truly hostile the destruction of the whole body of the Nation over which he is set to govern he loseth his Kingdom and may be resisted Which I grant For the end of all Government being for mutual conservation he that wilfully resolves to destroy can have no right to Govern Wherefore he that openly either in word or deed professeth himself an enemy to the whole Nation is in that very act presumed to abjure and renounce the Government of it When Scylla had depopulated not Rome only but almost all Italy one seriously advised him that it was fit to spare some that he might have some to govern Vt essent quibus Imperassent But this case can hardly be found in any King that is of sound mind and that governs one only Nation But in case he govern more than one it may so happen that in favour to one he may endeavour to destroy the other that so he may plant it with new Colonies Plut. vit lib. Grac. Gracchus his Arguments are very Ingenious whereby he proves that a Tribune of the people being therefore accounted sacred and Inviolable because he is consecrated by the people to defend them in case he shall endeavour to oppress them to diminish their power and to take from them their rights of suffrage doth thereby actually degrade himself in not performing that for which that honour was conferr'd on him For to admit saith Gracchus that the Tribunes of the people may in some cases imprison their Consul and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it even against those from whom he received it seeing that both the Consul and the Tribune were by the people created would be very absurd The like we find asserted by Johannes Major namely That a people cannot abdicate their power of deserting their Prince in such cases as tend to their manifest destruction Both which may be very well expounded by what hath been herein already delivered XII And against him who breaks the condition upon which he was admitted Fifthly In case a Kingdom be confiscate either by Felony committed against him whose the Fief is or by any clause or condition expresly made and agreed on at his admission to the Kingdom As in case the King shall do this or that his Subjects shall then stand absolv'd from all obligation of duty and obedience unto him †Vid. Marian. de regno Arragon In this case also a King may recede into the condition of a private person XIII And against him who havlng but one part of the Soveraign power Invades the other Sixthly If a King having but one part of the Soveraign power and the Senate or people the other if such a King shall Invade that part which is not his own he may justly be by force resisted because in that part he hath not the Soveraign power Which I believe may take place although it be said That the power of making War is in the King For this is to be understood of a Foreign War since otherwise whosoever hath any part of the Supreme power cannot be denyed a Right to defend his own even by force which when it happens even the King himself may justly by the Right of War lose even his own part of the said Empire XIV And against him who grants such a Licence in certain cases Seventhly If in the Translation of the Empire it be expresly said That upon some certain events that may happen it may be lawful to make resistance For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained yet certainly it may be conceived that some kind of natural Liberty was thereby understood to have been reserved to the people and exempted from the power of the King * Thuan. l. 131. in anno 1604. Id. l. 133. an 1605. de Hâ—ngaria For possible it is for him that alienates his own Right to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements whereof we may find
Baronies that are held by Homage or Fealty to the chief Lord. This is the succession of the Kingdom of England As in the Counties of Artoise Champane Tolouse and Brittany This was the order of succession prescribed unto the Dutchy of Mantua by the Emperour Sigismund Anno 1432. and by Charles the Fifth Emperour and King of Spain to Philip the Second in his Kingdoms and Principalities But the proof of this Lineal Succession though there were no Law or Example to guide us may be taken from the order that is observed in Publick Assemblies For if in that order regard be had to lineal descents it will be a sign that the hopes conceived of the children of the deceased was by Law quickened into a Just Right so that it may well pass from the dead to the living This is that Lineal Cognatical succession wherein women and those that are born of them are not excluded but only post-pon'd in the same line So that recourse is had unto them in case the Males that are nearer or that those born from Males in an equal line should fail The ground whereof as it differs from an hereditary succession is the hopes which the people conceive of them who are nearest related to the Prince in possession and who have the justest hopes to succeed him that they have Educations answerable to their high birth and hopes such are the Children of those Parents who had they lived must have succeeded XXIII The lineal succession of the Males only Agnatical succession There is likewise another lineal succession of Males only which is called Agnatical which differs from the Cognatical in that it excludes Females and admits only of Males which from the Kingdom of France takes its rise and is therefore called the French succession Though the Kingdom of Israel seems to have been thus setled 2 Chron. 13.5 And the chief reason of this is to debar Strangers from the Crown by marrying the Kings Daughters In both these lineal successions all are admitted that are any wayes allyed though in degrees never so remote from the last possessor whilst they can derive themselves from the first King And in some places where the Agnatical Succession is deficient recourse is had to the Cognatical Nay and this latter is sometimes preferred before the former as in Aethiopia where the Kings Sisters Son did alwayes succeed him which Bede records also of the Picts where the kindred of the women were preferred to the succession The like we read of the Indians So Tacitus of the Germans That their Kings gave the greatest honour to their Sisters Son as being nearest in blood to them XXIV A succession that alwayes respects the proximity to the first King Livy lib. 29. Vand. l. 1. Other manner of successions may be introduced either by the people or at the pleasure of him who holds the Kingdom in a patrimonial right so that he may alienate it For he may so settle the succession that they that are next to himself at all times may be preferred before others as it was anciently among the Numidians where for the like cause the Unkle did succeed in the Kingdom before the Children of the last King This Custome was introduced in Africk by the Testament of Gizerick wherein amongst many other things he chargeth his Vandals That they should admit of him only into the Throne that should be at any time nâ—arest unto himself in a right Masculine line and of them still the eldest and then the next in order wherein he regarded not the present possessor but the first Acquisitor Which order whether Gizerick himself learnt from the Africans among whom it had been long observed or whether they learnt it from some of our Northern Nations is a question The like was of old in use among the happy Arabians as may be gathered out of Strabo And the later Historians report the same of Taurica Chersonesus Lib. 16. Neither is it so long since the Kings of Fesse and Morocco did the like Livy speaking of Massinissa saith That whilst he made War in Spain for the Carthaginians his Father dying the Kingdom fell according to the custome of the Numidians unto Desalces the deceased Kings Brother The same Custome is in force throughout all Mauritania as Mariana testifies and in the Kingdom of Mexico and Peru as the Histories of those parts record Now the same if in doubt is to be observed in things committed to trust if it be left to the Family And this agrees best with the Roman Laws though some Interpreters do wrest it otherwise These things premised it will be no hard matter to resolve all Controversies which do arise concerning the Right of Kingdoms which the different opinions of Lawyers have made so intricate XXV Whether the Son may be so exheredated that he shall not succeed in his Fathers Kingdom And in the first place this Question ariseth Whether a Father may exheredate his Son so that he shall not succeed in his Kingdom Where we must distinguish between Patrimonial Kingdoms which are Alienable and such as are not Alienable In the former there is no doubt but that exheredation is lawful for such Kingdoms differ nothing from other Goods and therefore in such places where by Law or Custome Exheredation is in force it is practicable even in the case of Kingdoms yea though there were no Law or Custome to warrant it yet naturally it is lawful for a Father to exclude his Son from all but bare Alimony yea and from that also if he have committed any Crime worthy of death He may if the Kingdom be Patrimonial or have been otherwise notoriously wicked and have of his own whereby otherwise to subsist Thus was Reuben punished by Jacob with the loss of his Birth-right and Adonija by David with the loss of his Kingdom For David's Kingdom was in a manner Patrimonial though not by the right of War yet by special donation from God himself Now where the Kingdom is Patrimonial the King may nominate which of his Sons he will to succeed him as the Kings of Mexico now do Nay if the eldest Son have provoked his Father by any hainous crime and there be no manifest sign that he hath forgiven him he shall be as one tacitely exheredated Otherwise in Kingdoms nor alienable But it is otherwise in Kingdoms not alienable though they be hereditary because the people are best pleased that the Kingdom shall descend in an hereditary way especially from an Intestate Much less shall it be in the power of a Father to exheredate his Son where the Kingdom is to pass in a lineal descent For there without any imitation of an Inheritance it was agreed in its first Institution That the Kingdom should by the peoples gift pass to every person of the Royal Family in such order as was then prescrib'd XXVI Whether a King may renounce his Kingdom In a Kingdom meerly hereditary he may but nâ— in a Lineal
Succession Another Question is this Whether a King may so abdicate his Kingdom as to deprive his Son of his Right to succeed which is resolved by the same distinction For in Kingdoms meerly hereditary he that renounceth his Kingdom cannot transfer it to his Son But in lineal descents the Fathers act cannot null his Sons Right that is born For as soon as the children begin to exist the law makes provision for them yea and for those that are to be born so because that right which by the peoples consent is entailed upon them must in due time descend upon them Neither doth that which I have already said concerning transmission contradict this For that transmission is Necessary as to the Parents and not Voluntary But yet a difference there is between those Children that are born before the Renunciation and those born after For they that are already born have by the Law a full Right to the Kingdom though they that are not permitted to enjoy that Right during the life of their Parent but to those not born there cannot as yet be any Right acquired and therefore it may be taken away by the will of the people if the Parents also to whom it belongs to transfer that Right unto them be willing to release it And to this purpose is that we have already said concerning dereliction XXVII Whether the King or the People only have a Right to judge of the Succession Another Question doth sometimes arise namely who shall be judge of the Right of Succession to a Kingdom Whethet the King then reigning or the people by themselves or by such Judges as they shall appoint If the Question be put of such a Judgement as is Authoritative neither of them have any Right to judge For Jurisdiction there cannot be but in a superiour who should have respect not barely to the person but to the matter also which is to be poised with its due circumstances But the case of Succession is not properly under the jurisdiction of the present King because he cannot of himself by any Law bind his Successor For the Succession to the Empire lies not under the jurisdiction of the Empire but remains in the state of Nature wherein there was no jurisdiction at all But yet notwithstanding if the Right of Succession be controverted the pretenders unto it will do very piously and justly if they can agree between themselves upon some indifferent persons to whose arbitrement they can be contented to refer themselves whereof we shall discourse hereafter But the people have transferred all their Jurisdiction from themselves into the King and the Royal Family during which they cannot challenge to themselves any reliques of it This I mean of a true Kingdom and not of every Principality But yet if in the discussing of this Right any question do arise concerning the primary will and intention of the people at the first institution of the Kingdom it were not amiss to take the advice of the people in present that is of all the three States I mean of the Nobles Clergy and Commons in Parliament assembled as is usual in England and Scotland as Camden testifies in his History of Queen Elizabeth 1571 1572. For the people in present may be judged to be the same they anciently were Or by Delegates purposely chosen as in the Kingdom of Arragon unless it do sufficiently appear That the people then were clearly of another will and that thereupon the Right of Empire was obtained Plut. de fratrum amore Paus lib. 4. Justin lib. 2. Thus did King Euphaes suffer the Messenians diligently to enquire which of the Royal stock of the Aepytidae had most Right to the Kingdom But the contest between Xerxes and Artabazanes was determined by their Uncle Artaphernes to whom it was amicably referr'd as to a Domestick Judge XXVIII The Son born before his Father was King to be preferred before him that was postnate But let us proceed to other cases It hath been often controverted which of the two Sons hath the best Right to the Succession He that was born before the Father gained the Kingdom or he that was born after Whereunto the most Rational Answer is That he that was first born shall first succeed if the Kingdom be indivisible which holds true in every kind of Succession Yet did Henry the First youngest Brother to Rufus assume the Crown of England whilest his elder Brother Robert was in the Holy Land upon this pretence That he was born to his Father after he was Crowned King of England whereas his Brother Robert was born whilest his Father was Duke of Normandy only yet was Henry justly branded as an Usurper of his Brothers Right by Mat. Parisiensis But in case the Kingdom be divisible without doubt the latter shall have his share as well in this as in other goods concerning which it matters not when they were got Now if he that of a divisible Estate may have his share and in that which is indivisible is preferred by the priviledge of his birth Surely even the Inheritance must follow that Son which was born before his Fathers first Investiture But even in a Lineal Succession a Kingdom is no sooner got but the Children which are antenate do immediately conceive an hopes of Succession For admit that there are none born after surely no man will say That those before born are to be excluded But in this kind of Succession an hope once conceived begets a Right Neither doth it by any post fact determine unless it be in a Cognatical Succession where it may be for a while suspended by reason of the priviledge of Sex Thus was the case decided in Persia between Cyrus and Artaxerxes in Judaea between Antipater the Son of Herod the Great and his Brethren In Hungary when Geissa began his reign and in Germany though not without Blood between Otto the first Mariana l. 24. and Henry and in Turky between Bajazet the antenate and Gemes the postnate to the Empire And though haply it may be true that the choice of the Kings of Persia did much depend upon the suffrages of the people yet were those suffrages always limited to the Royal Family Lib. 23. For thus much doth Mariana testifie of the Arsacidae who being Parthians reigned in Persia And the like doth Zonaras in Justin of those Persians that succeeded those Parthians XXIX Unless otherwise provided by some Law But that it was otherwise in Sparta we attribute to the Laws proper to them only which gave the Sons that were postnate the Preheminence for their more Heroick Education The like may also happen by some peculiar Law made upon the first Investiture If a Soveraign Lord shall give unto his Vassal and to those that shall be born of him an Empire to be held of him in Fee upon the strength of which Argument Lewis in the contest that arose between him and his Brother Galeatius for the Dutchy of Millain did
principally rely For in Persia That Xerxes the Postnate Son was preferred before Artabazanes the Antenate was more by the power of Atossa his Mother than by true right as Herodotus observes For in the same Kingdom when the same Controversie afterwards arose between Artaxerxes Mnemon and Cyrus the Sons of Darius and Parisardis Artaxerxes the first-born though begotten by his Father in his private condition was notwithstanding saluted King Unless we take that as granted which Ammianus hath delivered unto us That the Succession to that Monarchy did much depend upon the suffrages of the people confined only within the Royal stock XXX Whether the Nephew by the elder Son be to be preferred before the younger Son It is no less disputed both by Wars and single Combats whether the elder brothers Son his Father being dead should succeed before the second Brother But this in a lineal descent will hardly admit of a dispute For herein are the dead reckoned as living in that they are able to transfer a Right to their Children therefore the Son of the deceased shall doubtless in such a Succession be preferred without any exception made to his age yea and where the Succession is cognatical the Daughter of the eldest Brother shall be preferred before the Uncle because in such Successions neither Sex nor Age should make us to decline the right line But in such Kingdoms as are hereditary yet divisible there shall each have a share unless it be where the Right of Representation is not as yet received as of old among many of the German Princes For it is but of late that Nephews have been admitted before their Uncles But where it once comes into debate surely the Nephews case is to be preferr'd as being most pleasing to humane Nature And where by the Civil Laws of any Nation representative Succession is once openly admitted there the Son of the deceased Brother shall succeed in the room of his Father though in that Law the word Proximus that is Next of kin be only mentioned The Reasons that are extracted out of the Roman Laws for this are but weak as is evident to such as inspect them But this is the best reason That in matters that are to be favourably understood the sense of words must be extended to all propriety not only vulgar but artificial So that under the name of Sons may be comprehended those of Adoption and under the word Dead may in included those that are dead in Law because the Laws do usually speak thus And thus he may deservedly be said to be Proximus whom the Laws present in the next degree But yet in Kingdoms that are hereditary and withal individual and where this Representative Succession is not excluded Neither is the Nephew always preferred to the Succession nor always the second Son but as amongst equals because by an effect of Right as to degrees that are adequate his case is best that is eldest Diod. l. 6. For as we have said before in hereditary Kingdoms Succession is guided by the priviledge of age Among the Corinthians the eldest Son of the deceased King did succeed in his Fathers Throne Procop. Vand. lib. 3. So among the Vandals it was provided That the next in Blood to the first King and the eldest should be declared Heir So that the second Son because of his maturity of years was preferred before the Son of the eldest Brother Vid. sup §. 24. So in Sicily Robert being the Second Son was advanced to the Throne before Martell his elder Brothers Son not properly for the reason fansied by Bartolus because Sicily was held in Fee as it were by a Superiour Lord but because that Kingdom was hereditary There is in Guntanus an ancient example of such a Succession in the Kingdom of the Francks but that proceeded rather from the peoples choice which at that time did not fully cease But since that Kingdom ceased to be Elective and that the line of Agnatical Succession was there established the matter admits of no dispute As anciently among the Spartans where as soon as the Kingdom came to the Heraclidae the same Agnatical Succession was introduced And therefore Areus the Son of the elder Brother Cleonymus was preferred to the Crown before his Uncle But even in a Lineal Cognatical Succession the Nephew hath been preferred As in England John the Nephew of King Edward by his eldest Son was preferred before Hemon and Thomas Which also is setled by Law in the Kingdom of Castile XXXI Whether the younger Brother living be to be preferred before the Kings elder Brothers Son By the same distinction we may resolve another doubt between the surviving Brother to the last King and the Son of the elder Brother But that we must know that in many places where among children the living may succeed in the room of the dead in the right line they are not permitted so to do in the transverse But where the Right is not clear and undoubted it is most rational to incline to that part which favours the Child in the Right of his Father because we are thereunto guided by natural equity namely in that Estate which descended from his Ancestors Neither is it any Impediment that Justinian calls the Right of Brothers Children Depredatory For this he doth in relation to the ancient Roman Laws but not to natural equity Let us now proceed to examine the other cases proposed by Emanuel Costa XXXII Whether the Son of the Brother be to be preferred before the Kings Uncle The Son of the deceased Brother or even his Daughter he saith is to be preferred before the Kings Uncle This is true not in a Lineal Succession only but even in an hereditary in such Kingdoms where Representative Succession takes place but not in such Kingdoms which in express terms do bind us up to the degrees that are Natural For there they are to be preferred which have the precedency of Sex and Age. XXXIII The Nephew by the Son preferred before the Daughter He further adds That the Nephew from the Son is to be preferr'd before the Daughter It is true By reason of his Sex yet with this exception Unless it be in such a Nation which even amongst Children respects only the Degree XXXIV The younger Nephew from the Son before the elder from the Daughter He farther adds That the younger Nephew from the Son is to be preferr'd before the elder from the Daughter which is likewise true where a Lineal Cognatical Succession is in use but not in an hereditary without the warrant of some Special Law Neither do we approve of the Reason alledged namely because the Father of the one was to be preferred before the Mother of the other For that was by reason of his dignity which was meerly personal and descended no farther And yet on the contrary we read that Ferdinando the Son of Berengaria the younger Sister of King Henry deceased was preferred to the Kingdom of Castile
distinction to be observed where there is any probable reason for giving or otherwise alienating what is the peoples But in case the King shall by any Contract go about to alienate any part of his Kingdom or of the Royal Patrimony beyond what is permitted unto him such a Contract shall be of no force as being made of that which was not his to dispose of As much may be said of such Kingdoms as are limited and restrained if the people have exempted any either matter or kind of acts from the power of their King For to make such acts valid the consent of the people or their Representatives is necessarily required as we have already shewed when we discourst of alienations Now these distinctions being observed it is no difficult matter to judge Whether the exceptions of Kings who refuse to pay their Predecessors Debts whose Heirs they are not be just or unjust whereof we may read many examples in Bodine XIII Of the Grants of Kings which are revocable and which not Neither is that which some affirm to be admitted without a distinction namely that the benefits of Princes which are freely and liberally granted may at any time be revoked For some benefits a King may give out of what is his own and which were it not for this clause at the prayer or request of the Grant might well pass for a perfect Donative Now these cannot be revoked unless from Subjects by way of punishment or for publick good for which also satisfaction must be given out of the publick stock if possible But other benefits there are which only take away the binding power of the Law without any Contract and these are revocable For as a Law universally taken away may always be universally restored so also being particularly taken away it may be particularly restored For no Right is here acquired against the Law-maker XIV Whether the right King be bound by Contracts of an Usurper But by such Contracts as are made by Usurpers or such as without any just title invade a Kingdom neither the people nor their lawful Prince are obliged For such have no right at all to bind them Yet even these also shall be bound by those Contracts so far as they are enriched by those Contracts CHAP. XV. Of Leagues and Sponsions I. Publick Agreements what they are II. Divided into Leagues Sponsions and other Conventions III. How these differ and how far Sponsions oblige IV. Menippus his division of Leagues rejected V. Leagues divided into such as oblige unto things agreeable to the Law of Nature and from whence this ariseth VI. And unto things thereunto added which are either equal VII Or such as are unequal which again are divided VIII Leagues made between those of a different Religion by the Law of Nature are lawful IX Nor are they universally forbidden by the Hebrew Law X. Nor by the Christian Law XI Cautions concerning such Leagues XII All Christians are obliged to enter into a League against such as are enemies to Christianity XIII If diverse of our Confederates are at War which we ought to assist explained by a distinction XIV Whether a League may be understood to be renewed tacitely XV. Whether the breach by one Party do free the other from being obliged XVI How far the Sponsors stand obliged in case what they undertake for be refused XVII Whether a Sponsion being known but not refused do oblige by silence This explained by a distinction I. Publick Conventions what they are ALL agreements are by Vlpian divided into such as are publick or private The publick he expounds not as some think by a Definition but by Examples The First whereof is that whereupon a Peace is concluded The Second is that whereon the Generals on both sides do agree among themselves about some things touching the War By Publick Agreements he understands those which cannot be made but by such as have the Right of Empire either Greater or Lesser whereby it is distinguished not only from the Contracts of private persons but from the Contracts which Kings make in their private affairs although even from these private Contracts a War is sometimes occasioned but oftner from the publick Wherefore since we have sufficiently treated of Conventions in general we will add thereunto some things concerning this kind which of all others is the most excellent II. How divided Now these publick Conventions which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we may divide into Leagues Sponsions and other Pactions III. The difference between them The difference between Leagues and Sponsions we may learn out of the ninth Book of Livy where he tells us That Leagues are such agreements as are made by the Command of the Supreme power and whereby the whole Nation is made liable to the wrath of God if they infringe it And this among the Romans was wont to be performed by Heraulds in the presence of the King of the Heraulds But a Sponsion is where the Generals having no order from the Supreme Power to conclude any thing about such a matter do yet promise and undertake something concerning it In Salust we read thus The Senate as it is very fit have decreed That without their and the peoples Command no League shall be made Lib. 24. Hieronymus King of Syracuse as Livy relates contracted friendship with Hannibal but he sent afterwards to Carthage to make of that Alliance a perfect League Wherefore that of Seneca the Father where he saith Cont. l. 4. c. 29. In that the Emperour struck up a League the Roman people may be said to strike it up and to be concluded by it must be referred to those ancient Consuls or Generals who had received special Order from the Senate and People of Rome so to do But in Monarchical Estates See Book 3. ch 20. §. 2. the sole power of making Leagues is in the King According to that of Euripides Adrastum hunc opus Jurare Namque is jus habet regni potens Vt civitatem foedere obstringat suo This Adrastus ought to swear I say Who being their Soveraign the whole City may Oblige this League for ever to obey Now as Inferiour Magistrates cannot oblige the people so neither can the minor part of the people oblige the whole But let us here enquire how far forth they are bound who not having the peoples Right shall yet undertake that which the people only have a Right to do Some may think that if the Sponsors use their utmost endeavour to effect that which they have undertaken they have preserved their Faith according to what we have already said Vid. sup ch 11. §. 22. of Promises made for the fact of a third person But the nature of the business concerning which this Contract is made requires a stricter obligation For no man in Contracts will either give or promise any thing of his own but expects that something shall be performed unto him in lieu thereof Whence it is that by
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
they broke out into Arms. So Coriolanus in Dionysius Halicarnassensis If a man saith he without coveting anothers do but demand his own and being thereof denied shall make War that War by the consent of all Nations is most just For as King Tullus saith in the same Author Quae verbis componi nequeunt ea armis decernenda sunt Those differences which cannot by reasons be composed must be determined by blows And yet as Vologeses in Tacitus declares I had rather keep what mine Ancestors have left me by Equity than by the expence of blood by mine own Just Title than by a doubtfull War For as King Theodorick wisely observed Then only is War profitable when our Enemies will not otherwise do us Justice VIII 2. By Arbitration The second way to prevent War between those who have no Common Judge between them is to put the matter in question to Arbitration This though much scorned by such Princes as are too confident in their own strength yet is worthily to be prest and insisted on by all that love Peace and Equity To persecute him as an enemy that is willing to put his Case to an indifferent Arbiter is impious and unjust saith Thucydides So concerning thâ— Kingdom of the Argives Adrastus and Amphiraus were both content to refer themsâ—â—ves to the judgment of Eriphyla as Diodorus testifies The like did the Athenians and the Megarenses to three Lacedemonians concerning the Island Salamis Lib. 5. The same Thucydides records this to be one of the Articles agreed on in the League between the Lacedemonians and the Argives That in case any Controversie should at any time arise between their Cities the matter in difference should amicably be referred to a third City which should be indifferent to both according to the ancient custome of their fore-fathers Thus the Corcyreans declare their readiness to refer their difference with the Corinthians to any of the Peloponnesian Cities that they should agree upon Many Great Princes and States to save the effusion of blood have been contented to put their grievances to Arbitration Aristides commends Pericles that to avoid a doubtfull War he was willing to commit his Cause to indifferent Judges So also doth Isocrates in his Oration against Ctesiphon highly extol King Philip of Macedon for his readiness to refer all those Controversies which he had with the Athenians to some other City that stood indifferently affected to either party Thus do the Samnites as to the differences between themselves and the Romans offer to stand to the award of those States that were at Peace with both of them Xen. Cyro lib. 2. Cyrus makes the Indian King Judge between himself and the Assyrian So do the Carthaginians to avoid a War put the Cause of their Quarrel with Masinissa to the Judgment oâ— others Yea and the Romans themselves do refer their differences with the Samnites Livy lib. 8. to be compromised by their common Associates We for our parts are ready say the Gepidae to the Lombards in Procopius to refer our selves to any indifferent Arbiters Goth lib. 3. Queen Elizabeth offered to refer the differences between her and the Dane unto Commissioners on both sides Camden Anno 1600. or unto the Elector of Brandenburgh the King of Denmark's Father in Law and to the Duke of Mechlenburgh and the Duke of Brunswick as Arbitrators Now they that refuse this way of disceptation by Reasons Arguments or Arbitrements running rashly into War when it may be avoided decline all Justice Humanity and the common practice of the best and wisest Princes Yet that Philip King of Spain would not admit of the Pope to be Judge between him and other Competitors for the Kingdom of Portugal I do not wonder Aberic Gentilis because the Pope claimed the decision of all such Controversies as his proper Right wherefore that wise King was unwilling to add his own Example to some ancient ones whereby the Pope might hereafter prove himself to be the sole Arbiter and Disposer of Kingdoms Many other Examples may be produced but in a Case so clear these may suffice Plutarch tells us That it was the principal duty of the Colledge of Heraulds among the Romans to take care Nè sinerent prius ad bellum veniri quam spes omnis judicii obtinendi periisset That no War should be attempted but where all hopes of receiving satisfaction for injuries done them by any other means were frustrate And Strabo testifies of the Druides in Gallia Lib. 4. That anciently they were the Arbitrators between publick enemies and that by their mediation Peace was often made even when the Armies were preparing for battel Which Office did of old in Spain appertain to their Priests as the same Author records But much more doth it concern Christian Kings and States to prevent the effusion of blood by this means Lib. 11. For if both Jews and Christians have thought fit to appoint Arbitrators among themselves to determine all Controversies to the intent Vict. de Jure Belli n. 28. That Brother should not go to Law with Brother before unbelievers as St Paul hath also commanded how much more reason is there that such Arbitrators or Judges should be chosen by us to prevent mischiefs far greater than going to Law namely spoil rapine murther yea and sometimes desolation which are the unhappy concomitants of cruel War From whence Tertullian concludes That a Christian ought not to wage War seeing that it is not lawfull for him to go to Law which notwithstanding is to be understood in a qualified sense Gregor lib. 10. And indeed it is very unfit for Princes who profess themselves to be followers of Christ to rush into arms one against the other with so much bitterness seeing that there are other means found out to compromise their Quarrels and to make better use of their Arms and Valour against the Common Enemy And for this as well as for many other reasons it would be very convenient nay necessary that constant Diets and Conventions of Christian Princes should be held where by the prudence and moderation of such as are not interessed all Controversies may be composed yea and that some expedient may be found out to enforce both Parties to accept of Peace upon equal and indifferent terms whereof we may find Examples in Cassiodore * Cassiod lib. 3. 1 2 3 4. Gailius †Gail de pace publ lib. 2. cap. 18. n. 12. and others which anciently was committed to the care of the Druides in France to whom the Bishops did afterwards by a better Right succeed So we read of the French Kings that in the division of the Kingdom they have referred themselves to the judgment of their Peers IX 3. By Lot The third way to prevent War is to decide Controversies by Lots which Dion Chrysostome much commends and long before him Solomon Prov. 18.18 whereof see St Augustine in his first Book 28. Chap. of
pledges LX. When the Right of redemption of things engaged is to be judged as lost I. The Division of Faith in order to what follows ALL agreements between Enemies depend upon Faith either exprest or understood Faith exprest is either publick or private Publick is either that given by supreme or that given by subordinate power That given by the supreme power either puts an end to the War or is of some force the War continuing Among those things that conclude a War some things are looked at as Principals and some Accessaries The principals are those very things that finish it either by their own act as the Articles of agreement or by consent on both sides that it shall be determined by some other thing or by Lots by the event of some Combats the award of Arbitrators whereof that by Lots is altogether fortuitous the other two moderate the case by the strength of the mind or of the body or by the discerning faculty II. The power to make Peace is in the King if the Government be Kingly They that have power to begin a War have also a power by Articles of agreement to to end it * See Bo. 2. ch 15. §. 3. for every man is the best moderator of his own affairs whence it follows that in a War on both sides publick the power of making Peace belongs to them who are entrusted with the Supreme Authority as in a Government truly Monarchical to the King so as he be no ways disabled to exercise that Authority III. What if the King be an Infant For in case a King be not at Years of discretion which in some Kingdoms is determinable by Law * Bo. 1. ch 3. §. 24. Francis King of France being Prisoner to Charles the Fifth Emperour and King of Spain his case about the Dutchy of Burgundy See Lord Herberts Hist of H. the 8th pag. 193. but in others by probable conjectures or if he be not of sound mind he is not capable of making Peace The like may be said of a King that is in Captivity in case that Kingdom had its first rise from the suffrages of the People it being incredible that the People should ever consent to entrust their Government into such hands as were not at liberty to exercise it wherefore in this case also though not the full power yet the exercise of that power and as it were the Guardianship of it is in the people or those whom the people shall surrogate in their stead Thus when Rodolfus the Palatine fled through fear into England and when the Bishop of Mentz was driven out of his Territories by the Bishop of Tryers neither the one nor the other lost their Electorship But yet as to those things that are privately his own a King though a Captive may make any Contract good after the example of those things that we shall say concerning private agreements But what if the King be an exile as Camillus was when he lived amongst the Vejans of whom Lucan writes thus Vejos habitante Camillo Illic Roma fuit is it in his power to make Peace yea surely if it appear that he lives free obnoxious to none for otherwise the condition of an exiled King is not much different from that of another Captive a banished man being but a Prisoner at large Thus Cicero speaks concerning Regulus that he refused to give his opinion in the Senate alledging that so long as he stood bound to his Enemies by Oath he was uncapable of voting as a Senator IV. In other States it lies in the major part But where the Supreme Authority is seated either in the Nobles or in the People it is in the power of the major part of them to make Peace The Decrees either of the publick Senate in the former or of the Citizens in the latter being to be pronounced by such as by use and custome have a Right thereunto according to what we have elsewhere delivered Bo. 2. ch 5. §. 17. And therefore what is thus agreed upon shall oblige the whole yea even those that dissented from them Thus Livy * Lib. 32. Whatsoever is once upon a full debate decreed is to be defended by all even by those who had been before against it Wherewith accords that of Dionysius Halicarnassensis Parendum est his quae pars major decreverit Whatever the major part thinks fit must by all be obeyed So likewise Appian Omnes decreto obsequi tenentur nulla admissa excusatione What is so decreed is by all men to be observed no excuse being admitted of to the contrary With whom agrees Pliny Quod pluribus placuisset cunctis tenendum What pleaseth the greater part obligeth all But those whom Peace obligeth it also profiteth Iisdem volentibus prodest V. How an Empire or any part thereof may be alienated for Peace Now let us see what manner of things they are that are subject to such agreements most Kings now a days because they hold not their whole Kingdoms nor any part of them in propriety but in respect of their fruits and profits only cannot by any Contract or Agreement alienate them * See above Bo. 2. ch 6. §. 3. and what follows Yea and before they receive that great charge of the Empire upon them during which time the People are as yet above them all such acts of alienating the Kingdom or any part thereof may by a publick Law for the future be made absolutely void so that as to what concerns That they shall not be binding at all And credible it is that the People were generally thus minded Ne alioqui si ad id quod interest salva esset actio contrahenti subditorum bona pro debito regis caperentur Lest otherwise if as to that which is so provided against the action should hold good to the person contracting the goods of the Subjects might be taken for the Debt of the King And consequently this caution of not alienating the Kingdom would be in vain But that the whole Empire may be firmly alienated the whole body of the People must yield their consents which may quickly be done by their Representatives which are the three Orders or States of a Commonwealth namely the Clergy Peers and the Commons But that any part of the Empire may be firmly alienated a twofold consent is requisite first of the whole but more especially of that power which is to be alienated which cannot be severed from the body whereunto it grew against its will This was the French Kings Plea why he would not deliver Burgundy as he had upon his Oath agreed and promised But yet in a case of extreme necessity and otherwise unavoidable That very part may firmly conveigh away the Government over themselves unto any other without the consent of the People because credible it is that when that society was instituted this power was reserved But in Kingdoms that are Patrimonial what should hinder a King from alienating
his Kingdom I know not but yet such the case may be that such a King hath no power to alienate any part thereof as if he received the whole as his propriety upon this condition that he should not divide it But as concerning those things which are called the goods of the Kingdom these may also become the Kings Patrimony two ways either as separable from the Kingdom or as inseparably united unto it if this latter way they may be transcribed See Bo. 2. ch 15. but not unless with the Kingdom if the former they may be alienated without it But such Kings whos◠Kingdoms are not patrimonial can hardly be permitted to alienate the Goods of the Kingdom unless it evidently appear by some Primitive Law or by a continued and uninterrupted custome that they may do it VI. How far the people and successors are obliged by a Peace made by the King But how far forth the promise of a King shall bind his Subjects and Successors hath already been declared * See Bo. 2. ch 3. §. 10 c. namely so far as the power obligatory is comprehended in that Government which should be neither infinite nor impaled within in too narrow bounds but to extend so far only as in probable reason it shall be found convenient But in case the King be absolute Lord * See Bo. 3. ch 8. §. 2. over his People as having at his own charge conquered him and so holds them under a Government merely Despotical and not Civil or if he have gained the Dominion not over their persons but over their things as Pharaoh bought all that the Aegyptians had for Corn or as they that admitted of Strangers into their Houses to whom they prescribe what Laws they please if I say the Government be thus absolute then it is another thing For in this case besides that Right which is regal there is an access of another Right which makes that justifyable which a bare regal power could not VII What power a King hath over his Subjects goods to the making of Peace But here there usually ariseth another Question namely What Right Kings have over the Estates of private men in order to the establishing of Peace as having no other Right to that which particularly belongs to his Subjects than what he hath as a King That the things belonging to Subjects are under the supereminent power of the Commonwealth whereof they are a part we have already proved so that that Common-wealth or he that exercises the supreme power in it hath a Right to make use thereof either by even destroying them or by alienating them and that not only in a case of extreme necessity which is even between private men justifyable but when it extends even to the good of the publick which is always to be preferred before any private mans by the general consent of those who first entred into civil society Which notwithstanding is so to be understood that the whole Commonwealth is obliged to repair the damages that shall befal any of her Subjects or Citizens by reason of any such spoil or alienation out of their publick stock or by a publick contribution whereunto even he who hath sustained the loss shall if need be pay his proportion Neither shall that City or Commonwealth stand discharged from this obligation although at present it be not able to satisfie it for whensoever that City shall be enabled this sleeping obligation may rise up against it VIII But what if the things be already lost by War Neither can I here generally admit of the opinion of Vasquius namely that the City is not obliged to repair the damages of her Citizens sustained by the War because such damages are by the licence of War permitted For this Right of War hath only respect to the People of several Nations as we have elsewhere explained it * Bo. 3. ch 6. §. 2. and partly to such as were in open hostility amongst themselves but not to Citizens amongst themselves who being mutually associated and equally engaged in the defence of their City should in equity esteem every mans to be the common loss But yet doubtless it may by the Civil Law be so ordained that no Action shall lye against such a City for any damages sustained by the War to the end that every man may be the more watchful and resolute to defend his own IX No difference between things got by the Civil Law and things got by the Law of Nations Some there are that place a vast difference between those things which belong to Subjects acco ding to the Law of Nations and those things which are theirs by the Civil Law gra ting a larger Right to the King in taking away these without either cause or recompence but not so in the former but erroneously For a Right of Dominion however lawfully gained hath always by the Law of Nature its proper effects that is to say that it cannot be taken away unless it be for such causes as are naturally inherent in Dominion it self or such as arise from some fact done by him that is the right owner X. What is done by a King is taken by Foreigners to be done for a publick good Now this care and inspection that the things of private persons be not alienated unless it be for a publick benefit appertains to the King and to the Subjects as that of repairing of damages doth to the City and each particular Citizen For the bare fact of the King is sufficient to Strangers that contract with him not only in respect of the presumption which the Dignity of his person brings with it but also in respect of the Law of Nations which permits the Goods of Subjects to stand obliged by the fact of the King XI A general rule for the interpreting of Articles of Peace But as to the right understanding of the Articles of Peace what we have said before must here also be observed * See Bo. 2. c. 16. §. 12. The more of grace and favour any Article contains the more extensively it should be taken and the more of rigour it hath the more restrictively it should be understood If we look at the bare Law of Nature the greatest favour that can be granted seems to be this That every man should enjoy his own wherefore where the Articles are ambiguous such an interpretation should be admitted as may lead us to this sence That he that undertakes a just War should receive what he fights for together with his costs and damages but not that he should get any thing more by way of punishment for this savours of rigour which ought to be restrained But because a bare acknowledgment of wrongs done seldome procures a lasting Peace therefore in Articles of Peace such an interpretation should be admitted as may according to the justice of War make the ballance on both sides even which may be done two ways either by an equal composure of
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseâ—t 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
read 1 Sam. 9.16 and 1 Sam. 10 1. still it is super eos not under my people but over them not under them to serve them but over them to save defend and deliver them Thus David and Solomon are said to be anointed over the people over the Lords anointed and over Israel And David gives thanks 2 Sam. 5.2 1 Kings 4.1 Psal 144.2 that God had subdued his people under him Christ also declares as much where he saith The Kings of the Gentiles exercise dominion over you Luke 22.25 The Power of Kings o're Subjects is their own Horace But none can Kings command but God alone The three Forms of Government are by Seneca thus described Ep. 14. Sometimes the people are most to be feared sometimes if the Government be such those most in favour with the Senate and sometimes those particular persons upon whom the whole power of the people and over the people is devolved For such saith Plutarch have power to govern not only according to the Laws but even the Laws themselves for the publick good Flam. Thus Otanes in Herodotus describes a King That he may do even what he will without being accountable to any So doth Dion Prusaeensis That he may so rule as not to render an account to any Pausanias to the Messenians opposeth Kingly Government to that which is lyable to give an account of his Acts to others Aristotle affirms That there are some Kings who are invested with as much power as elsewhere a whole Nation hath over it self or whatsoever it hath So as soon as the Roman Generals began to assume unto themselves Regal power Uno minor Jove That Kings Inferiour to God alone is no less Christian than Ethnick Philosophy For in this and in nothing more are Kings like unto God that they depend upon none He whom God hath placed in his Throne is accountable to none but unto him who placed him there He is Solutus Legibus above the lash of humane Laws He judgeth all but is judged of none When Herod was accused to M. Anthony for the Murder of Aristobulus Anthony makes this Apology for him It was neither Just nor Equitable to require an account from Kings for what they do as Kings For if that were permitted they could be no longer Kings Kingly Power then must needs be the highest because there lyes no Appeal from him or against him but unto God And as it is subject to no other power so it is bounded by no humane Law as other powers are 'T is granted that Moses indeed seems to prescribe Laws unto Kings and tells them what they should do And good Princes will say with the Emperour Theodosius Tantum mihi licet quantum per Leges licet That only is lawful for me to do which the Laws account so But as Moses teacheth us what a King should do so Samuel tells us what a King may do Moses tells us his duty Samuel his power The Law consists of two distinct parts the one Direct the other Coercive the former points at the rationability of the Law the latter at the danger we run into if we break the Law Now Laws serve to direct Kings because they mind them of their duty But they have no power to force them to that duty much less to Un-King them if they do it not the people are said to confer upon them all their power and authority over themselves as Theophilus expounds it Hence is that excellent saying of M. Antoninus None but God himself is the Judge of Kings Dion Prusaensis speaking of such a King saith He is free and absolute in power both over himself and over the Laws what he will he doth and what he will not he doth not Such anciently in Greece was the Kingdom of the Inachidae at Argis whom Moses terms the Anakims Deut. 2.10 For the Argives in Aeschylus thus bespeak their King Our State and City is in thee The Lacedaemonians in the Story of the Macchabites claim to be of Kin to Abraham they had two Kings but Magis Nomine quam Imperio More in Name than Power as Cora Nepos testifies Thou need'st not fear Laws Tyranny Sacred as Altar is thy Throne For all are Rul'd by thee alone Much different from what Theseus himself though a King speaks in Euripides concerning the Common-wealth of Athens Athens being Free Enslav'd by any one disdains to be The People there are Kings who Annually The Government to this or that decree For Theseus as Plutarch informs us was not their King but their General in War and the Guardian of their Laws in peace in other matters he was but equal with the rest of the Citizens Hence it comes That those Kings that are accountable to the people Lib. 3. Vit. Cleom. Vit. Ages as those after Lycurgus but especially as the Ephori were to the Lacedaemonians are by Polybius Plutarch and others said to be Kings in Name only but not in Power which example of the Lacedaemonians notwithstanding most of the Graecian Cities followed Pausanius to the Corinthians thus testifies of the Argives Corinthiacis Kings in name only not in power That they were so far addicted to parity and liberty that at length they reduced the power of their Kings to almost nothing for to the Sons and Posterity of Cisus they left not any thing but the bare Name and Title of a Kingdom And therefore Aristotle denyes that such Kingdoms do constitute any special Form of Government allowing them but as parts either of Optimacy or Democracy Nay even among such people as were not perpetually governed by Kings Some have for awhile the power but not the name we may find some footsteps of a Temporary Monarchy not at all subject unto the People M. Livius Solinator in his Censorship disfranchised all the Tribes but one in Rome for their Ingratitude thereby shewing his power over the whole body of the people And such was the power of the Dictators in Rome from whom there was no Appeal no not unto the People whence it came to pass that as Livy informs us An Edict from the Dictator was as Authoritative as an Oracle from God Dictators in Rome temporary Kings 1. Arg. answered The Thing that constitutes not always greater than the thing constituted Neither was there any safety at all but in obedience For though Kings were banished yet was the Regal Power comprehended in the Dictatorship The Arguments produced for the contrary opinion are easily answered For in the first place Whereas they say the Thing that constitutes is greater than the Thing constituted and therefore the people that make the King must needs be greater than the King they have made I answer That it is true where the Authority of the thing constituted doth always depend on the will of the Constitutors but not where the Authority once freely given doth ever after fully remain in the person that received it As for example A
It is one and the same God that sets up one and pulls down another and that transfers Crowns and Scepters from one Nation to another People and that rules the People by whom he pleaseth Now to such as judicially peruse the Writings of the Prophets they will appear most evident for they do not only foretel the Counsels of God but the very Kings and Princes by whom God intends to bring about his secret purposes are therein described yea and sometimes named long before they were born as Josias by name 1 Kin. 13.2 Cyrus by name Es 45.3 Which plainly argues that God doth not only foresee what will come to pass but pre-ordains such and such persons by whom he intends to effect his purposes yea and fits them with habits and graces accordingly he makes use of that supereminent power that he hath over the lives of every of his Creatures whereby to punish those Kings by taking away their Subjects it being the proper punishment of Kings to be thus weakned * The proper punishment of Kings is to be deprived of their Subjects IX Mutual Subjection refuted Others there are that seem to fansie to themselves mutual subjection as in case the King shall govern well then the whole body of people should obey but in case he govern ill then he ought to be subject unto the people Now if what they say do amount to no more than this That our obedience to Kings binds us not to do any thing that is manifestly wicked they say no more than what all sober men will grant Yet doth not this imply any compulsion or any right of Empire that is in the people But in case they had a purpose to divide the Government with the King whereof we shall have occasion hereafter to speak somewhat they ought to assign bounds and limits to the power of either party which may easily be done by making distinction of either Places Persons or Affairs But the well or ill management especially of Civil Affairs being apt to admit of great debates are not so sit to distinguish the parts for great confusions must necessarily arise where the right of power is to be judged of by the pretensions of good or evil acts some judging of these Acts in favour to the King others in savour to the people which confusion no people that I as yet know were ever so imprudent as to introduce X. Cautions in judging of the Supreme Power These errors being thus refuted It remains that we set down some Cautions which may guide us to give a right judgment to whom in every Nation the Supreme Power belongeth whereof the first is this That we suffer not our selves to be deceived by such names as are ambiguous in sence nor with the shew of outward things As for example Although amongst the Latins a Kingdom and a Principality are usually opposites as when Caesar said the Father of Vercingetorigis having got the principality of Gallia Kingdoms and Principalities promiscuously used was slain for his affecting the Kingdom And when Piso in Tacitus said that Germanicus was indeed the Son of a Prince of the Romans but not of the King of the Parthians And when Suetonius said that Caligula wanted but a little of changing his Principality into a Kingdom yet we find these Titles of times promiscuously used For both the Lacedaemonian Generals who derived themselves from Hercules Lib. 1. though afterwards they were subjected to the Ephori yet were still called Kings And some ancient Kings of Germany there were as Tacitus relates who Reigned magis suadendi quam jubendi potestate more by perswasions than by power And as Livy speaks of King Evander Lib. 15. that he governed rather as a prudent Magistrate than as a King Thus Solinus calls Hanno the King of the Carthaginians And he that wrote the Life of Hannibal saith That as the Romans chose every year two Consuls so the Carthaginians chose two Kings meaning their Suffetes or Judges Among these Kings improperly so called we may likewise reckon their Sons whom their Fathers were pleased to honour with the Title of Kings though they reserved unto themselves the Regal Power Such was that Darius whom his Father Artaxerxes commanded to be killed being first condemned for plotting his Fathers death as Plutarch relates the Story So on the contrary The Roman Emperors Plut. Aâ—taxâ— ad finâ—m after they had openly assumed unto themselves Regal Power contented themselves with the Names and titles of Generals or Princes Nay the Ensigns of Regal Power are in some Free Cities usually given to Princes But now the assembly of States that is of those that represent the whole body of the people digested as Gunther speaks into three orders namely Parliaments why called Prelates Nobles and the principal Burgesses of Cities do in some places indeed serve to this end only to be the Kings Greater Council whereby the grievances of the people which are oft-times concealed by his Privy Council may come to the Kings knowledge who have also power to determine them as it shall seem good unto them according to Custome But in other places they have power to call into question the Actions of the Prince and also to prescribe Laws which shall be binding even to the Prince himself There are many also that place the difference between the Supreme and the Lesser Powers in the translation of the Empire by Election or Succession Attributing the Supreme Power to this latter but not unto the former But this holds not universally true For Succession assigns not the Form of Government but the Continuation of a Form in the same Family For the right which began in the Election of such a Family is by Succession continued Among the Lacedaemonians the Kingdom even after the Ephori were constituted was hereditary And of such a Kingdom or Principality it is that Aristotle speaks where he saith That some pass by the right of Blood and some by Election And such in the time of the Ancient Heroes were most of the Kingdoms of Greece I mean successive as both Aristotle and Thucydides observed so doth Dionysius Halicarnassensis Whereas on the contrary the Roman Empire even after all power was taken as well from the Senate as people was always transferr'd by Election XI The Second Caution A Second Caution shall be this It is one thing to enquire concerning the thing and another to enquire concerning the manner of holding it which holds good not in things Corporeal only but in things Incorporeal For as a Field is a Thing so also is a Passage The thing it self distinguisht from the manner of holding it an Act or Way But these some may have by a full right of propriety others by a right usufructuary as a Farmer hath a right to his Farm and some others by a Temporary Right As the Roman Dictator the Soveraignty but by a Temporary Right So Kings as well those that are first Elected as
also those that succeed to them in a right line hold their Kingdoms by an Usufructuary right that is they hold them as to all the rights and profits but not to alienate them But others hold their Kingdoms by a full Right of Propriety as they that by a just War have conquered them Or he to whom any people to prevent greater mischiefs have yielded themselves Subjects for protection so as they reserve nothing unto themselves Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power because it was not perpetual For the Nature of all Moral things are best known by their operations Wherefore those powers that have the same effects are to be called by the same name But a Dictator during his time exerciseth all Rights that a King doth who holds his Kingdom by a full right Neither can any Act of his be made void by any other as may appear by the Case of Fabius Rutilianus whom when the people would have preserved they could deal with the Dictator by no other means but by Petition Whence we may conclude That he had the same supreme power Now the Duration or Continuation of a thing alters not the nature of it yet if question be made concerning the dignity which is usually called Majesty doubtless he that hath it perpetuated unto him hath the greater Majesty than he that hath it for a time limited only because the manner of holding it adds much to the Dignity of him that holds it Now what hath been said of Kings Protectors have absolute power during their time may also be said of such as are either during the Minority of Kings or during their Captivity or Lunacy appointed Protectors For neither are those subject unto the people nor is their power revocable before the time come appointed by the Laws But it is otherwise with those who have a Right which is at any time revocable Some Kingdoms held during the plâ—asure of the people Procop. Vand. lib. 1. As they who reign only during the pleasure of others such was the Kingdom of the Vandals in Africa and of the Goths in Spain who were as often deposed as they displeased the people And every act of theirs might be made void because they who gave them that power gave it under condition of Revocation And therefore not having the same effect they could not be said to have the same Right XII Some Soveraign powers are held fully with a right of alienation Against what I have before said That some Kingdoms are held in full right of propriety that is as Patrimonial There are very learned men that make this objection That Men being free are not to be traffickt away from one to another as things that are bought and sold But as the power of a Master is different from that of a King so is personal liberty from that which is Civil And the freedom of singular persons from the freedom of States The Stoicks themselves confess That there is a kind of servivitude in subjection Hottom Cont. illust qâ—ae i. 1. Diog. Laâ—â—t 1 Sam. 22.28 2 Sam. 10.2 1 King 9.22 Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants As personal liberty excludes the power of a Master so also doth civil liberty that of Empire and all manner of Soveraignty properly so called Livy thus opposeth them Before men had tasted the sweetness of liberty they desired a King And again What a shame is it for the people of Rome who when they served under Kings were never straitned by War nor besieged by an enemy Lib. 45. being now a free people to be besieg'd by the Hetruscans And in another place The people of Rome live not now under Kingly Government but in liberty And elsewhere he opposeth those Nations that were free unto those that lived under Kings So also Seneca the Father Sâ—as 1. We ought not to give our opinions in a Free state in the same manner as we did under Kings Yea and Cicero Either we did not well to expel Kings or we ought to restore the people to liberty De leg 3. Ann. l. 1. not in words only but in deeds After these comes Tacitus The City of Rome saith he was at first governed by Kings but it was L. Brutus that instituted Liberty and Consular Authority And to be short every where among the Roman Laws when they treat of War and recuperatory Judgements all Foreigners are distinguisht into Kings and Free people The question then here put respects not personal but civil subjection In which sense some Nations are said not to have power over themselves Hence is that in Livy Which Cities Fields and Men were sometimes under the power of the Aetolians And that also Are the people of Collatia a free people i. e. have they any power over themselves Nevertheless to speak properly when any people are said to be alienated When a Kingdom is alienated it is not the people but the right of governing them that is alienated it is not the men but the perpetual right of governing themselves as they are a people that is alienated As vain and frivolous is that Inference which concludes That because Kings conquer Nations by the blood and sweat of their Citizens therefore what is so conquered ought of right to belong rather to them than to him For possible it is That that King may pay his Army out of his own private estate as M. Anthony did in his Bohemian Wars who when the Roman Treasury was exhausted being unwilling to impose any more Taxes upon the people brought into Trajans Court and made sale of all his Vessels of Gold Silver Crystal and Myrrh together with his own and his wives Robes of Silk and Gold and all other their Ornaments and Jewels for the maintenance of the War Or he may pay his Army out of the rents and profits of that patrimony which attends the Principality And therefore Ferdinando claimed to himself all that part of the Kingdom of Granada which he had gained with the rents and profits he had raised out of Castile during the time of his Marriage as Mariana testifies Lib. 28. Hist Hispan For although a King have but the mean profits arising out of that Patrimony in the same manner as he hath the right of governing the people who have elected him yet are those profits properly his own As it is also in the Civil Law where though the Inheritance be judged to be restored yet the profits are not because they are perceived not from the inheritance but from the thing it self Possible therefore it is that a King may be so possest of the Government over some people in his own proper right that it is in his own power to alienate it As it was granted to Baldwin by those that accompanied him in his expedition to the Holy Land That the half of
matters to be judged by the Army but in times of peace by the People The Kings power availed nothing farther than his Authority reached There is in another place of the same Author another sign of the same mixture mentioned namely this The Macedonians Curt. lib. 8. saith he ordained that according to the custome of their Nation Their King should never hunt on Foot but in the company of some of his select Friends or Princes The like doth Tacitus write of the Gothones That they were under a stricter Government than others of the German Nation yet not altogether without liberty For whereas he had before described a Principality thus That it governed rather by a Perswasive than Coercive Power He now describes a Kingdom in these words When saith he One person rules without any limitation or exception and that not by entreaty but by absolute command Eustathius upon the Sixth of Homer's Odysses describing the Common-wealth of Corcyra saith That it was a kind of mixt Government having something of Kingly and something of an Aristocratical Government Laonicus Chalcocondylas makes mention of the like Government in Hungary and in England in Arragon and in Navarr where the Magistrates are not created by the King nor are any Garrisons imposed on them against their will nor any thing commanded them by their King contrary to their Laws and Customs Not much different was the Government of the Romans in the time of their Kings For although almost all publick affairs were then transacted by the Regal Power Romulus saith Tacitus governed us as he pleased And it is plain That in the Infancy of their City all power was in the King saith Pomponius yet even at this very time were some few fragments of that power reserved in the people if we may give credit to Dionysius Halicarnassensis but if we had rather believe the Romans in some Cases Appeals might be made from the King unto the people Ep. 100 as Seneca collects out of Cicero's Books de Rep. as also out of some Pontifical Books and Fenestella By and by after Servius Tullius being advanced to the Empire not so much by Right as by popular Favour did much more impair the Majesty of the Kingdom For to gratifie the people for their kindness he ordained some Laws Taâ—it l. 3. whereunto the Kings themselves stood obliged No marvel then if Livy puts this only difference between the power of the first Consuls and of Kings that it was but Annual The like mixture of Popular and Aristocratical Power there was in Rome iâ— the Vacancy of their Kings Viâ— Camilli and in the times of their first Consuls For in some things and those of moment what ever the people commanded was established as a Law if the Fathers were made the Authors lib. 5. But as Plutarch observes The People had no Right either to make a Law or to command any other thing unless proposed by the Authority of the Senate The like Mixture of Government Chalcocondylas notes to have been in the Common-wealth of Genoua in his time But afterwards in Rome the power of the people increasing though the Fathers began and proposed as anciently they were wont to do yet as Livy and Dionysius observe the people would decree what they pleased But yet even after this there remained some of this Mixture whilst as the same Livy speaks the Soveraign Power was in the Patricians that is the Senate and the Auxiliary power in the Tribunes i. e. the Plebeians who had a Right to either forbid or intercede when they pleased And of this mixt Government between Democracy and Aristocracy Isocrates would have the Common-wealth of Athens to consist in the time of Solon Now these things being premised let us examine some doubtful Questions which do frequently arise about this matter XXI A Confederate on unequal terms may have the Supream Power The first thing that falls under dispute is this Whether that Nation can be said to have Supream Power that is in League with another Nation upon terms unequal Where by Unequal I do not mean where the Confederate Nations are of Unequal power as when the City Thebes made a League with the Persian Monarch in the time of Pelopidas or the Romans with the Massilians and afterwards with Massanissa Neither do I mean such a League as implyes some one transient Act that seems dishonourable as when an Enemy paying the Charges of the War or performing some such thing is reconciled and becomes a Confederate But where by the express Articles of the League there is some permanent and lasting Prelation given from one to the other As when one Nation is bound to maintain the honour of another as in that League between the Aetolians and the Romans whereby the Aetolians were bound to use their endeavours to preserve as well the dignity as the safety of the Roman Empire which dignity is sometimes called the Majesty and by Tacitus the Reverence of the Empire which he thus expresseth Though they are separate from us in place and live within their own bounds Liâ— 4. yet in their minds and understanding they act with us So likewise Florus As for the rest of the Nations though free yet perceiving the vastness of their Empire they did highly reverence the people of Rome being Conquerors of so many Nations Whereunto we may also refer some Rights due to them that undertake the Patronage and defence of others And those Rights the Mother Cities have over smaller Cities and Colonies amongst the Graecians For such Colonies saith Thucydides enjoy the same Right of Liberty as their Mother Cities do Colonies But yet they owe a Reverence to their Mother City and ought to send her presents as an acknowledgement of the honour they have for her Livy concerning that ancient League of the Romans who had received all the Rights of Alba and of that which the Latines derived from Alba saith In that League the Roman State was superiour Andronious Rhodius following Aristotle did well observe that in contracting amity between Nations of equal power Nic. 9.18 The weaker should give the greater honour and the stronger the greater succours It was but reasoble that the weaker should give the greater honour and the stronger afford the greater succours Proculus in his Answer to this Question we very well know namely That that is a Free Nation which is not subject to the power of another although it be comprehended in the League that that Nation shall faithfully uphold the Majesty of the other If therefore a Nation bound by such a Covenant do yet remain free and not subject to the power of another It follows that that Nation doth yet retain its Soveraignty the like may be said of a King For of a free-people and of a King that is truly so there is the same reason Proculus adds further that such a Clause is added in the League to declare that one Nation is superiour to another
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
to Dominion or Empire because there are few of them but some that are unborn may pretend a Title to If we say it may then will it seem as strong how silence can prejudice them that could never speak as having as yet no existence or how the fact of one man may damnifie another To resolve this we must know He that hath no visible being can have no right that he that hath no visible being can have no right as that which hath no existence can have no accidents wherefore if the people from whose will all right of Soveraignty did originally proceed may change their will surely they cannot be said to injure those that are as yet unborn seeing they have as yet no acquired right But as the people may change their will expresly so may they be believed to do it tacitely and therefore it being granted that the people have changed their will and that the right of those who are as yet unborn doth not exist but that the Parents of whom they may be born and who had a right in the mean time to have preserved it for them did relinquish it what should hinder but that what is thus deserted may be occupied by another Many examples we find in Histories of such Derelictions Many examples of Derelictions Mariana l. 13. c. 18. the most eminent is that of Lewis the Ninth of France whom we find renouncing for himself and his children all that right which by his Mother Blanch he might have claimed to the Kingdom of Castile And those renunciations which the Infanta's of Spain do usually make whensoever they marry to the Kings of France are of force to debar them and their Children from all pretensions to the Crown of Spain And thus much may suffice to be spoken of that right which is natural For by the Civil Law as many other Fictions so this also may be introduced that the Law may in the mean time sustain the persons of such as are unborn and may so provide that nothing shall be possest by any other to their prejudice as the Civil Law doth for the inheritances of Infants and Ideots But whether the Law will do it or not is not rashly to be presumed because what thus conduceth to the particular benefit of these may haply much endanger the Common-wealth There is no doubt but that such a right may be established by the Civil Law as cannot lawfully be alienated by any one act which notwithstanding for the avoiding of the uncertainty of Dominion may by the neglect of claim in some certain time be lost yet so that they that shall afterwards be born may have their personal Action against those by whose neglect they have lost their Right or against their heirs XI That the Title to Empires may be got or lost by Prescription By what hath been already said it is plain that a just Title may be gained by one King against another and by one free people against another not only by express consent but by dereliction and the occupancy following it creating as it were from thence a new Right or Title unto it For as to that general maxim Quae ab initio non valent ex post facto convalescere non possunt Those Titles which were originally naught cannot by any post fact be made good is to be understood with this exception unless some new cause do intervene which of it self is apt and able to form a new right And by this means that is by a manifest dereliction and a long possession he that is a true King may lose his Kingdom and become a Subject to the people and he that was really no King but a Prince may become an absolute King And that Soveraign Power which was once wholly in either King or People may at length come to be divided among them XII Whether Kings are obliged by those Civil Laws of Usucapion or Prescription But here it is not altogether unworthy our pains to enquire Whether the Law of Usucapion or Prescription having the stamp of the Soveraign Power may bind him also that made it or whether the very rights of Empires or their necessary parts which we have elsewhere explained are subject to this Law of Prescription and uninterrupted possession Some Civilians are of opinion that they are and those not a few especially of such as handle questions concerning Soveraign Empire according to the Civil Law of the Romans But we with some others are of another opinion Kings not always bound by their own Laws directly for that a man should be bound up by Laws it is required that in the Law Maker there should be both a power and a will at least strongly presumed so to do But no man can properly impose a Law upon himself as a Superior upon an Inferior for then the person commanding and the person commanded would be one and the same And from hence it is that he that hath power to make a Law hath also a power to change that Law and consequently not only to command according to Law but to command sometimes the Laws themselves for the general good And yet a King may stand obliged by his own Laws though not directly Though indirectly they may Vide infra Bo. 2. ch 20. §. 22. Sen. Epist 85. yet by reflection namely as he is a part of the Body Politick and so in natural equity ought to be conformable to the whole as Saul in the Infancy of his Reign is said to do 1 Sam. 14.40 So in a Ship the Captain sustains two persons one common with the rest being carried also along with them the other proper as he is Governor both of the Ship and those that are in it But here we look at the Law-giver not as apart but as one in whom the power of the whole is contracted For in this place we treat of Soveraign Power as such Neither is it easily to be believed that it was the will of the Law-maker to comprehend himself under the Law he makes unless it be where the matter and reason of the Law is universal as in the apprising of Commodities and the like For there is not the same reason that the Soveraign Power should be bounded and limited by the Law as other things are it being in dignity far above it for if we once admit it to be absolute and supreme we must also grant it some Priviledges and Prerogatives above and before others I never yet found any Civil Law that treated of Prescriptions that could with any probability be understood to include the highest powers Hence then we may conclude that neither the time limited by the Civil Law can suffice to acquire a Soveraign Empire or any of its necessary parts in case these natural Conjectures whereof we have here treated be wanting Nor is such a space of time required if within that time sufficient conjectures of Dereliction shall appear Nor lastly doth the Civil Law which forbids things
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
that as those Alienations so these Infeudations of Kingdoms which Kings have made without the peoples consent yea and the Remission of Homage too have by many people been made void Now the people are said to consent either when the whole body of them do meet to express it as the Germans and Gauls were wont or when the several Provinces do it by their Deputies being thereunto sufficiently authorised As in the German Empire the consent of the Princes Electors doth both by Custom and Covenants conclude all the orders thereof in any Alienation for Whatsoever we do by another is reputed our own act Id facimus quod per alium facimus So neither can any part of an Empire be morgaged without the like consent not only because it usually introduceth an Alienation but for that Kings are bound to their Subjects to exercise the Soveraign Power by themselves and so are the people in general to their respective parts to conserve the administration of the Empire entire this being the chief end of their Consociation X. Inferior Jurisdictions not alienable by the King But as to other lesser Civil Functions I see no reason why the people may not by an hereditary right grant them at their pleasure because they do not thereby diminish the intire body of the Empire yet cannot a King do it without the consent of the people if we consine our selves within the bounds of nature because the effects of a temporary power such as Elective and legally successive Kingdoms are can be but temporary yet may the people as well by their express consent as by their long continued silence give that Right to their Kings For so the Histories of the Medes and Persians do inform us that their Kings usurping this Right did anciently give away whole Towns and Provinces to be held by a perpetual right XI Not the peoples patrimony That part of the peoples Patrimony being amongst the ancient Grecians a part of the common Fields the fruits whereof were designed for the maintenance either of the publick charge of the Common-wealth or of the Royal dignity cannot either in the whole or in any the least part thereof be alienated by Kings without the consent of the three States that is the Clergy Nobles and Commons because they have no right to any thing more than to the present profits no not to the smallest part of it as I have said For Quod meum non est ejus nec exiguam partem alienare mihi jus est Of that which is not mine I cannot alienate the smallest part Yet the people may sooner be presumed to consent by their knowledge and silence in such small matters than in greater And the like may be presumed in cases of common profit or danger concerning the alienation of some parts of the Empire if it be not of any great moment for that Patrimony was at first instituted for the good of the Empire XII The patrimony to be distinguished from the mean profits But many are deceived in that they do not rightly distinguish between the things arising from the Patrimony as its fruits or profits and the Patrimony it self As for example the washing of the banks of a River is patrimonial but the increment which the Flood produceth is but the fruits and profits of it so the power and right of raising a Tax is patrimonial but the mony so raised is but the profits of that Right The right to confiscate is patrimonial but the Lands confiscated are but the profits of that right XIII How far forth that part of the peoples patrimony may be pawned by the King and why Those parts of the peoples patrimony which are so designed as aforesaid may upon just cause be pawned or morgaged by Kings that have full and absolute power that is that have power upon occasion to raise new Taxes upon their Subjects For as Subjects are bound to pay such Taxes so are they likewise bound to satisfie that for which any part of their patrimony is for the publick good pawned the redemption whereof is some kind of Tribute For the very patrimony of the people is a kind of pawn given to the King for the payment of the publick debts and any thing that is thus pawned to me I also have a right to pawn to another Yet what hath hitherto been said is of force unless it be where the Laws of the Land do either enlarge or contract the power either of the Prince or the people XIV Testaments a kind of Alienation This also must be observed That under this Title of Alienation we comprehend likewise Testaments For though Testaments as some other acts also are beholding to the Civil Law for their form yet is the matter of it nearly allyed to dominion and it being granted to the Law of Nature For a man may by Testament give away his Estate not only fully Arist Pol. l. 2. c. 7. but under certain conditions nor irrevocably only but with a power to revoke and yet he may still keep the possession of what he so gives with a full right of enjoying it For a Testament is an Alienation of a mans Estate at his death and revocable till then and yet reserving in himself the full possession and absolute fruition during life Quint. Pater Vide supra Bo. 1. ch 3. §. 12. And therefore Solon in permitting his Citizens to make their Testaments Made them absolute Lords and Proprietors of what they had Surely our Estates would be but burthensom unto us if the power we have in it during life should be taken away from us at our deaths Abraham in pursuance of this Right had he dyed childless had lest by his Testament all his Estate to Eliezer as we may collect from Gen. 15.2 And the making of Testaments was of frequent use among the Hebrews as may appear Deut. 21.16 Ecclus 33.25 But that in some places it is not permitted to Strangers to make their Wills is not to be attributed to the Law of Nations but to the municipal Laws of some Countries and if I mistake not enacted in such an Age when all Strangers were accounted enemies and therefore amongst the more civilized Nations hath long since been worn out of use CHAP. VII Of that Right that is acquired by Law and of Succession from an Intestate I. Of the Civil Laws some are unjust and therefore cannot transfer a Right as in things shipwrackt II. By the Law of Nature a Right may by gained in things taken from another for a just debt and when III. How Succession to an Intestates estate doth naturally arise IV. Whether by the Law of Nature any part of the Parents goods be due to their Children explained by distinction V. The Children of the deceased preferred to the Estate before their Parents and why VI. The Original of Representative Succession VII Of Abdication and Exheredation VIII Of the Right of Natural Issue IX Where are no Children nor Will nor certain Law extant
the ancient Estate shall return from whence it descended and to their Children X. But that which was lately gained to the nearest in blood XI The Laws touching Succession are diverse XII How Succession takes place in Patrimonial Kingdoms XIII In Kingdoms Indivisible the first-born to be preferred XIV That Kingdom which by the peoples consent is hereditary if in doubt is presumed indivisible XV. The Succession not to last beyond the line of the first King XVI Natural Issue not at all concerned in it XVII The Male Issue preferr'd before the Female within the same degree XVIII Of the Males the eldest is to be preferred XIX Whether such a Kingdom be part of an Inheritance XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began whether Absolute XXI Or held of another in Fee XXII Of Lineal Suceession to the next in blood whether Males or Females and how the Right is thereby transmitted XXIII Of Lineal Succession to the Male Issue only called Agnatical Succession XXIV Of that Succession which always respects the nearest to the first King only XXV Whether a Son may be exheredated so as to bar his Succession to the Crown XXVI Whether a King may for himself and his Children renounce his Kingdom XXVII Concerning the Right of Succession the Judgement to speak properly is neither in the King nor People XXVIII A Son born before his Father was King shall be preferred before him that was postnate XXIX Vnless it be otherwise provided by some other Law XXX Whether the elder Brother deceased his Son be to be preferred before the younger Brother explained by distinction XXXI Also whether the younger Brother living be to be preferred before the Kings elder Brothers Son XXXII Whether the Kings Brothers Son be to be preferred before the Kings Vncle XXXIII Whether the Kings Son be to be preferred before the Kings Daughter XXXIV Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter XXXV Whether the Daughter of the eldest Son be to be preferred before the younger Son XXXVI Whether the Son of a Sister be to be preferred before the Daughter of a Brother XXXVII Whether the Daughter of an elder Brother be to be preferred before the younger Brother I. Some of the Civil Laws unjust HAving thus shewed what Right may be derived from another by his Act now we are to treat of the Right that is derived from another by Law And this is either by the Law of Nature or by the voluntary Law of Nations or from the Civil Law It were endless to treat here of the Civil Law neither are the main Controversies concerning War thereby determined and therefore we shall purposely omit it Yet is it worth our Observation to know that some of the Civil Laws are apparently unjust as that which adjudgeth goods Shipwrackt unto the Kings Coffers For to take away anothers Right and Propriety without any preceeding cause that is probable is a manifest injury Thus pleads Helen in Euripides Helen Wreckt and a Stranger came I in Such to despoil is horrid sin For what Right saith Constantine can the misfortunes of another create to a King that he should be enriched by a calamity so much to be pitied Lib. 1. C. de Naâ—f l. 12. And therefore Dion Prusaeensis in an Oration of his concerning Shipwracks crys out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Far be it O Jupiter from me to take such advantages by other mens misfortunes And yet such a Right do the Laws of Nations very unjustly give as amongst the English the Sicilians And such an ancient Law Sopater mentions to be in force in Greece Christian King of Denmark upon the abrogating of this Law complained That he lost an hundred thousand Crowns yearly Nicetas speaking of this Law calls it a Custome so barbarous as is not to be named What then was Bodines meaning to defend this Law He namely who reprehended Papinian for chusing rather to dye than to act against his own Conscience II. A man may have a Right to that which he takes from another and when Propriety or Dominion being introduced it follows by the Law of Nature That things are alienable two ways First By commutation which consists in the making up of that Right which I want whereby the ballance of Justice may be made even or Secondly By Succession Now Alienation by way of Commutation or Expletion is when for something that is or ought to be mine which I cannot receive in kind I take from him that detains it or somewhat in lieu thereof that is some other thing of equal value Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods See Book 3. ch 7. §. 6. Which saith he they might take and keep in compensation of their labour Now that Dominion may be thus transferred is easily proved from the end which in moral things is the best proof For how otherwise can I be said to receive my full Right unless I become the right owner of it Seeing that it is not the bare detention but the full power to use and dispose of it at my pleasure that makes the Scales of Justice even An ancient example of this we have in Diodorus where Hesionaeus in lieu of those things which being promised to his Daughter by Ixion but not given took away his Horses For Expletive Justice when it cannot recover what is the same endeavours to get the value of it which in a moral estimation is the same By the Civil Law no man we know can do himself Right Nay if any man shall with his own hands take away from another though but what is his due it shall be imputed unto him as Rapine and in some Countreys he shall lose his debt And although the Civil Law did not diectly forbid this yet from the very institution of publick Tribunals it may easily be concluded to be unlawful But where there are not publick Courts to appeal unto as on the Seas and in Desarts there the Law of Nature must be our guide So it should sometimes when the Laws cease but for the present that is if the debt can never be got otherwise As if the Debtor be ready to fly the Countrey before the Courts can be open in which case the Creditor may lawfully have recourse to the Law of Nature Yet so that the Judgement of the Court must afterwards be expected before the Right of Propriety can be assured as in the case of Reprizals as shall be said hereafter But yet if the Right be certain and it be also morally as certain That a man cannot by a Judge receive satisfaction for want of due proof the best opinion is That the Law concerning Judgements ceaseth and that a man may have recourse to the ancient Law of Nations III. The Estate of
before Blanch the elder Sister of the same King But this as Mariana notes was done in hatred to the house of France into which Blanch married â—XXV The Neece from the elder Son preferred before the younger Son That which he adds as seeming to him most probable namely That the Neece from the elder Son excludes the younger Son cannot hold in hereditary Kingdoms although Representative Succession be there in force For that gives only a capacity to succeed But of those that are capable regard is to be had to the priviledge of the Sex XXXVI The Sisters Son preferred before the Brothers Daughter And therefore in the Kingdom of Arragon the Sisters Son was preferr'd before the Brothers Daughter And as Mariana observes It is credible that in that Kingdom in times long since past The Kings Brother and not his Daughter had the Right of Succession But afterwards they were so well pleased with a Lineal Succession that they preferred the Sisters Son before those that in a more remote degree descended from the Brother And in another place speaking of Alphonsus he saith That unto the Inheritance of the Kingdom of Arragon after his Son Ferdinando he appointed his Nephews by his Sons and for want of such then the Nephews by his own Daughter were to be preferred before the Daughters of the said Ferdinando Whereunto he adds Sic saepe ad Arbitrium Regum jura regnandi commutantur They are Titles to Kingdoms oft-times fann'd about by the breath of Kings XXXVII Whether the Daughter of the elder Brother be to be preferred before the younger Brother After the same manner In Kingdoms that are hereditary the Daughter of the eldest Son shall give place to the Kings younger Brother CHAP. VIII Of Dominion vulgarly said to be acquired by the Law of Nations I. Many things are attributed to the Law of Nations which to speak properly are not thereby due II. Fish and Deer in Ponds and Parks are by the Law of Nature held in Propriety contrary to what the Roman Laws deliver unto us III. That Wild Beasts straying out of Inclosures cease not to be the first owners if they may be known IV. Whether the possession of them may be gained by Instruments as by Nets and how V. That such Wild Beasts should be the Kings is not contrary to the Law of Nations VI. How the possession of such things as have no owner may be gained VII Mony found whose it is naturally and of the diversity of Laws about this VIII That those things which by the Roman Laws are delivered unto us concerning Islands and Increments are neither Natural nor from the Law of Nations IX That Naturally Islands in Rivers and the Channel being dried up are theirs whose the River or that part of the River was that is the peoples X. That Naturally the Propriety of a ground is not lost by an Inundation XI That Increments if in doubt are the peoples XII But they seem to be granted unto those whose grounds have no other bounds but the River XIII The same may be presumed concerning whatsoever the stream leaves dry XIV What is to be accounted an Increment and what an Island XV. When the Increments belong unto Vassals XVI The Arguments whereby the Romans would prove their Law to be as it were Natural answered XVII That a way is naturally an Impediment to Increments XVIII That it is not Natural That the Child should follow the condition of the Mother only XIX That Naturally a thing may be made Common as well by giving a Form to another mans matter as by confusion XX. Yea though that matter be ill wrought XXI It is not Natural that the lesser part should yield to the greater by reason of its prevalence where also are observed other Errors of the Roman Lawyers XXII Naturally by planting sowing or building upon anothers ground there ariseth a community to both in the Fruits perceived XXIII He that sows anothers ground by mistake may require his Charges but not the Fruits XXIV Yea though he doth it knowingly XXV That Naturally Tradition is not necessary to transfer Dominion XXVI The use of what hath hitherto been said I. That many things are said to belong to the Law of Nature that properly do not NOw our Method leads us to treat of that Dominion which is vulgarly said to be acquired by the Law of Nations which being distinct from that gained by the Law of Nature we have therefore termed the voluntary Law of Nations Such is that Dominion which is got by the Right of War But of this we shall discourse better hereafter where the effects of War shall be explained The Roman Lawyers where they treat of the gaining of the Dominion of things do reckon up many ways whereby it may be acquired which they seem to justifie by the Law of Nations But to him that diligently examines them there is hardly any except that gained by War that will appear to be gained by that Law of Nations whereof we now speak But are either such as are to be referred to the Law of Nature not that which is meerly so yet to that which follows close upon it Dominion being first introduced and so antecedes all Civil Law or they are such as may be referred to the very Civil Law not that of the sole people of Rome but of many other Nations Which I rather believe because this Civil Law or Custome came originally from the Greeks whose Institutes as Dionysius Halicarnassensis observes with some others all Italy and some other adjoyning Nations followed But this is not the Law of Nations properly so called For it serves not to conglutinate all Nations mutually among themselves but rather to preserve peace and tranquillity between the Subjects of every Nation And was therefore alterable by any one people without consulting the rest so that it may also come to pass That in other places and in other ages a far different common custom and so another Law of Nations improperly so called may be introduced Which we have found really done as soon as the German Nation had invaded all Europe For as of old the Graecian Laws so then the Germans were almost every where received and do as yet flourish The first way of gaining Dominion by the Law of Nations as the Romans call it is by the primary seizure or occupancy of such things as have no owner which without doubt is natural in that sense which I have declared that is Dominion being first introduced and so long as no Law did otherwise determine For Dominion may also be gained by the Civil Law II. As Fish in Ponds Deer in Parks And hitherto in the first place we may refer the taking of Wild Beasts Birds and Fish But how all these may be said to belong to none will afford matter of debate Nerva the Son was of opinion That Fish if in a Pond were possest but not in a great Lake And that Wild Beasts if in a Park or
the will of him that should do them We may therefore grant that where the Inundation is very great and where there are no visible signs of the owners intention to retain his dominion it may well be presumed that he gives his Land for lost Now as our conjectures in this case cannot but be naturally uncertain by reason of the variety of circumstances which are herein considerable and to be referred to the Judgment of some prudent man so ought it to be determined by Civil Laws As in Holland That ground is given for lost which hath for ten years been drowned in case there appear no signs that the possession is still claimed which with them is sufficiently done by fishing in it only though the Romans do not allow thereof But among other Princes the ancient occupants are prescribed a certain time wâ—erein to drein their Lands which if they do not then are the morgagers of that Land if engaged admonish'd to do it but if they delay it then the Magistrates either Civil or Criminal are to do it and if they neglect it then it is forfeited unto the Prince who may either drein it at his own charge or transfer it to some other reserving a part of it unto himself XI That the Increments of Rivers if in doubt are the peoples Whatsoever the floods do add to the soil because it cannot be known from whence it came cannot be claimed by any for if it could naturally the property should not be changed wherefore it is adjudged to be his whos 's the River is and if the River be the peoples consequently the increment is so too XII But if granted then theirs whose fields have no other bounds but the River But it is in the peoples power to grant it as unto others so unto those who enjoy the Lands next adjoyining and doubtless they are presumed so to do if those Lands have no other bounds but the River on that side And although that distinction which the Romans make between Lands bounded and Lands measured be of good use yet have both of them in this case equal right For what we have said before concerning the bounds of Empires * Ch. 3. §. 16. is of force here also with this only difference that the bounds of Kingdoms if in doubt are presumed to be arcifinious because those are most agreeable to their nature But private possessions are rather believed to be set out and bounded either by Landmarks or by measure as being most suitable to theirs But yet we deny not but that the people may grant their Land as fully as they themselves enjoy it that is even unto the River which if they do then is the increment of that River theirs also This was a judged case in Holland not many Ages since of grounds bordering upon the Rivers Izal and Maze because both by the deeds of purchase and by the books of rates they were always mentioned as bounded by the River And although in the sale of these Lands somewhat of the measure be exprest yet shall it retain its own nature and have right to whatsoever the River shall add unto it XIII So are the hanks if forsaken by the River and left dry What hath been said concerning that which the Floods do add to the soil is likewise verified of that part of the shore or of the Channel which the River forsakes For where there is no Occupant there the next Occupyer hath the best Title but in Rivers that are possest whatsoever is so gained from the Channel is the peoples or theirs to whom they have assigned the Lands next adjoyning as being bounded by the River XIV What is to be held as Increment and what as an Island Now because there is one manner of right proper to Islands and another to the increments of Rivers Controversies do often arise how to distinguish them especially when a little rising ground lyes near the Fields adjacent yet is separated from them by the intervention of a little water that covers the Plain as is often seen in the Low Countries where the ground is not level where also the customs do somewhat vary For in Gildria if a loaden Wain can pass through the Waters interjacent then is the rising ground judged to belong to the adjoyning Fields so is it also in the Fields of Puttene If a man standing upon the bank can with his Swords point touch the ground that lyes beyond the water Thus the German Histories record of Autharis King of the Lombards That sitting on Horseback upon the Shore and touching with the point of his Lance a certain Pillar said Vsque hic erunt Longobardorum fines Hitherto came King Autharis and this shall be the bounds of Lombardy The like story we read of the Emperor Otto who standing on the bank threw his Javelin into the Baltick Sea assigning that to be the limits of his Empire But it is most agreeable to Nature that if for the most part the passage over be by boat it should be judged an Island XV. When the Increment belongs to the Vassal Another Question doth no less frequently arise between a Prince that fully enjoys the peoples right and his Vassals or Lieutenants who under him are intrusted with the Government But it is sufficiently evident that the bare grant of the Government doth not intitle the Vassal to the increment of Rivers But yet we must note That many that are thus intrusted with these limited Governments do together with them receive the profits of all the * Universitatem agrorum Lands in general except such as are in the possession of private men Upon this presumption that those Fields were anciently either the peoples or the Princes or at least drained by the Prince and if so then doubtless whatsoever either the Prince or the people did so enjoy their Vassals have a good right unto Thus we see that in in Zealand those Vassals that have power to appoint Judges though but in civil affairs do pay a tribute to the State for their common Fields whereof every man according to the tenure of his private possession bears his proportion Now that these Vassals have a right to the increment of the Rivers there can be no doubt Others there are to whom the Rivers themselves are granted who may therefore justly claim the Islands thereunto belonging whether they be of mud heaped up together or made out of the Channel if surrounded by the River Others again there are in whose grants neither the one nor the other is included and these have but an ill cause to defend against the publick Exchequer unless either the custom of the Country do favour them or a long uninterrupted possession with such adjuncts as are requisite give them a right But in case the Lands only and not the Government be granted unto them then we must look unto the nature of the Land as is abovesaid For if its bounds be arcifinious then are the Increments granted
Oligarchical or Democratical that is of King Nobles or People The Romans were but the same people whether under Kings Consuls or Emperors yea though the Government be never so absolute yet are the people the same they were as when they were free so long as he that governs governs as the Head of that people and not as the Head of another For that Soveraign Power which resides in the King as Head rests in the people as in the whole body whereof the King is the Head so that if the King being elected should dye or if the Royal Family be extinct the Right of Government recedes back to the people or to whom they grant it Neither is that of Aristotle to be objected against me who denyes that to be the same City the form of whose Government is changed As the Harmony cannot be said to be the same that is changed from the Dorick to the Phrygian way For we ought to know that of any one artificial thing there may be several forms As of a Legion or Regiment there is one form whereby the Souldiers are governed and another wherein they fight So there is one form consisting in a Consociation of Right and Empire and another in relation to the parts between themselves as those that are governed and of those that govern This latter the Politician respects as the Lawyer doth the former Pol. l. 2. c. 3. Neither was Aristotle himself ignorant hereof who presently adds But whether the Form of Government being changed all debts and reckonings be discharged or not is a question belonging to another Art which Aristotle would not confound with his Politicks lest what he blamed in others he should practise himself making a transition from one kind of Treatise to another Surely a debt contracted by a free people ceaseth not to be a debt because they have admitted of a King for the people are the same and do still retain the Right and Dominion of those things that formerly were theirs yea and the Empire too A King newly admitted shall take that place in General Councils that the Nation when free formerly enjoyed though now it be not exercised by the body but the head whence we may easily determine that Controversie which is sometimes started concerning his place in General Councils who is newly made a King over a Nation formerly free namely that he is to be admitted into that very place which that Nation enjoyed whilst it was free as Philip of Macedon in the Great Council of Amphictyon took that place that was due to the Phocenses so on the other side That place which formerly belonged to the King the people shall succeed in being made free IX But if two people or Kingdoms be united the Rights shall not be lost but câ—mmunicated as the rights of the Sabines first and afterwards of the Albanes were transferred into the Romans and so were made one Common-wealth as Livy records The same may be said of Kingdoms being conjoyned not in League nor as having but one King but being perfectly made one X. Or one be divided But if a Nation or Kingdom be divided either by mutual agreement or by the Sword as the Persian Kingdom was by Alexander's Successors then of one entire Empire there shall be made two or more and each shall enjoy its peculiar right over its particular parts Or if any thing shall be held in common it shall be either ratably divided between them or else be administred in common Hither we may refer those who are sent out to plant Colonies For this is usually the rise of a new free people Coionies usually the Rise of a free State Vid. sup B. 1. C. 3. §. 1. L. 4. For we do not as Thucydides notes send them out as our servants but as those who have equal right with our selves And thus did King Tullius in Dionysius Halicarnassensis judge this case That the Mother Cities should govern their Plantations abroad absolutely as if by the Law of Nature we conceive to be neither true nor righteous yet ought they to reverence them as the Carthaginians did the Tyrians their first Founders as Curtius testifies XI Where the old Roman Empire now resides It is also a famous Question much controverted both by Historians and Civilians To whom the rights belonging formerly to the Roman Empire do now appertain Some say to the German Emperor which by I know not what deputation they place in the room of it But it is sufficiently known That the Great Germany namely that which lyes beyond the Rhine was but a little while within the pale of the Roman Empire And to translate the rights of Kingdoms from one to another without certain and evident proofs seems to me to be too great a presumption Wherefore I am of opinion that the Roman people are now the same they were of old though somewhat mixt by the access of Foreigners and that the Empire doth still remain with them as in a Body Politick wherein it was and should live For whatsoever the people of Rome had of old a right to do before they had Emperors that they had the same right to do in their Interregna or vacancy of their Emperors Yea and the very Choice of their Emperors was their right who were often made either by the people by themselves or by the Senate yea From a Fleeting power no Right can be certain It is of dangerous consequence for Soldiers to elect their Generals and those Elections which were made by the Roman Legions as such there were sometimes by these and anon by others were not firm nor stable by any right that those Legions had for from a Fleeting power no right can be certain but by the approbation of the people When the two Roman Generals Publ. and Cn. Scipio were both slain and the Army had chosen L. Martius a valiant young Gentleman their Captain General though he had vanquished two several Armies of the Carthaginians and forced their Camps yet notwithstanding when in his Letters to Rome he had assumed that Honourable Title of Pro-Praetor the Senate considering that his Command was neither granted by the people nor allowed of by themselves were much offended at his presumption in usurping it fore-seeing well that it was a matter of dangerous consequence for Soldiers abroad to make choice of such as should command Armies and Provinces And that the solemnity of Elections so devoutly begun in the name of their Gods should now be transferr'd into Camps far from Laws and Magistrates But yet we have many examples of Elections made by their Armies but so as they were afterwards approved of and confirmed by the Senate as were those of Adrian Pertinax Julian Severus Macrinus Maximinus Baldinus Aurelian and others Capitolinus records an Epistle of Albinus concerning the right of the Senate in the Election of their Emperour and another of the Senate concerning the Gardiani Macrinus in an Oration thus bespeaks the Senate concerning
the Roman Legions They have conferred the Empire on me the defence whereof O Fathers Conscript I do in the mean time undertake and if it be as pleasing to you as it hath been unto them I shall also undertake the Government So also doth the Emperour Tacitus in Vopiscus Me saith he hath the Senate made their Prince according to the prudent advice of the Army To the like purpose is that of Majorinus to the Senate Remember that I was made Emperour as well by your own Free Suffrages as by the appointment of your puissant Army The Roman Empire as Maximinus in Herodian tells his Soldiers is not the possession of any one man but the Ancient Inheritance of the whole people of Rome upon whose safety the Empire depends And we together with you are to this purpose chosen that they through our Care and Courage may live securely Neither doth it avail to the contrary to say That by the Constitution of Antoninus the Emperour all that lived within the Verge of that Empire were made Roman Citizens For by that Sanction all the Subjects of that Empire were only made capable of such rights and priviledges as the Roman Colonies and such other Towns and Cities anciently had For Rome over all her Colonies appeared as a Lady or a Queen Zon. that were made free namely that they might use the same Laws and be governed by such Magistrates as the people of Rome had But the Foundation of the Empire was not so in any other people as it was in the people of Rome for this was not in the power of the Roman Emperors to grant who could neither change the state of the Empire nor its manner of holding it Neither did it at all detract from the right of the Citizens of Rome that their Emperours changed the place of their residence from Rome to Constantinople The change of the Imperial Seat did not change the Empire For even then also was the choice of their Emperours made by such of the Roman Citizens as were resident at Constantinople whom Claudian calls the Byzantine Romans yet so as that choice was to be confirmed by the whole body of the people of Rome who like Princes jealous of their own Soveraignty alwayes preserved the prerogative of their City and the honour of their Consuls The Empire continued in the people of Rome though the Emperor resided at Constantinople the first whereof did constantly reside at Rome as the Trophies of their own incommunicable right wherefore all that right which those Byzantine Romans pretended to have in those Elections depended wholly on the people of Rome Nero in the fourteenth of Tacitus his Annals accuseth his Mother for endeavouring to divide the Empire with him by swearing to her self the Praetorian Bands and for hoping to put the same reproach upon the Senate and people Whereas as Priscus notes the Soveraignty of the Roman Empire appertained not to women but men For after the death of Heliogabalus it was especially provided that no woman should ever after be admitted into the Senate and that he that should do it should be accursed to Hell And it was observed by Tribellius as a matter of reproach That Zenobia usurped the Empire and governed the Common-wealth longer than was fit for a woman to do it When the Byzantine Romans contrary to the mind and custome of the Romans had subjected the whole Empire to the Empress Irene they deservedly revoked that Grant which they had either expresly or tacitly given them and by their own power chose Charles the Great The Bishop of Rome the Principal Citizen in the Vacancy of the Empire Emperour which they publickly declared by their chief Citizen the Bishop of Rome For so also was the High Priest among the Jews alwayes accounted during the vacancy of their Kings Now Charles the Emperour and his Successors did always very prudently distinguish between the right they had to the Kingdoms of the Francks and Lumbards and the right they had to the Empire the former being their Ancient Inheritance the latter being entrusted unto him upon a new account but afterwards the Kingdom of the Francks being divided into the Western which is now called France and the Eastern which is Germany or Almany seeing that the Oriental Francks did then begin to set over themselves Kings by Election for even at that time the succession to the Kingdom of the Francks being as it were Aquatical depended not so much upon any certain Law as upon the choice of the people The Romans that they might enjoy a most assured protection chose not a King of their own but him whom the Germans had admitted for their Emperour yet still reserving unto themselves the right of either approving or rejecting him so far as concerned their own affairs And this approbation is in their name solemnly witnessed by their chief Citizen the Bishop by a peculiar Coronation Wherefore as he that is admitted or elected by the seven Princes of Germany being the Representatives of the whole Nation hath according to their customs the best title to the Empire So is the same person by the approbation of the people of Rome made King or Emperour of the Romans or as Historians sometimes call him King of Italy As in the excommunication of the Emperour Henry the Pope makes express mention of the Kingdoms of Germany and Italy and in the Oath that the Pope administred unto the Emperour Otto as Gratian records the Emperour swears That he will make no Decree or Ordinance concerning any thing belonging to the Pope or to the Romans without his Counsel So that the Emperour under the Title of being King of the Romans hath a right unto all that did formerly belong unto the Roman Empire that hath not been otherwise alienated or granted away either by agreement or by occupancy upon a presumption of being deserted or by the right of Conquest From whence it is an easie matter to determine By what righâ— the Pope in the Vacancy delivers the Ornaments of the Roman Empire to the Emperouâ— of Germany by what right the Bishop of Rome in the vacancy delivers to the succeeding Emperour the ornaments of the Roman Empire namely because at such time the people being free the Primacy belongs to him And it is usual for Bodies Politick to dispatch all their affairs by the chief person in the name of the whole So that as the Prince Palatine and the Duke of Saxony do deliver the Royal Diadem to the Emperour Elect thereby giving him possession of the German Empire So doth the Bishop of Rome in the name of all the Romans give unto the same person being by them approved the ornaments of the Roman Empire So it is also in Poland the Arch-Bishop of Guessne during the vacancy The Arch-Bishop of â— Guessne in Poland sits on the Royal Throne and administers the publick affairs of the Kingdom as being of all the Orders the chief Neither is
that our Saviours words signifie no more than what Philo's the Jew did It is an excellent thing saith he and most agreeable to Rational men De Decal so to accustom themselves to speak truth That their bare words may carry as much authority as other mens Oaths And in another place he saith That a good mans word is as firm immutable and void of deceit as if he had confirmed it with an Oath So likewife Josephus testifies of the Esseni That whatsoever they affirmed upon their words was as true as if they had affirmed it upon their Oaths And therefore to swear was unto them superfluous And from these Esseni or from those Jews that followed them Pythagoras seems to have learnt it where he saith We must not swear by the Gods but every man sbould be so careful of his word and credit that he may be believed without an Oath It was the advice of Chrysostome If thou dost believe that he with whom thou hast to deal De stat 15. is honest and faithful urge him not to swear but if thou suspect him for a lyar urge him not to forswear The Scythians in Curtius told Alexander That it was not the custom of the Scythians Gratiam jurando sancire to purchase his favour or establish their own peace by Oaths For saith Curtius Colendo Fidem Scythae jurant The Scythians are so great admirers of truth and Fidelity that their bare words do oblige them as firmly as and their deeds confirm their promises more than their Oaths Cicero in his Oration for Roscius Comoedus tells us that look what punishments the Gods awarded to a perjured person the same they awarded to a Lyer For it was not the form of words wherein the Oath was comprehended that provoked the Gods unto vengeance but the malice and perfidiousness of the heart wherein all Treacheries and forgeries are minted It is excellent Counsel that Solon gives us That we should have so great a regard to our own honesty that our words may be as Authoritative and convincing as our Oaths Thus Clemens Alexandrinus describes a just man to be one that evidenceth the truth of his promises by the sincerity and constant stability of his words and actions Cicero records it of a certain Citizen of Athens that being known to be of a Religious and upright conversation Orat. pro Baldo and being to give his publick testimony upon Oath was not permitted so to do but as he approached near the Altar to that purpose all the Judges with one voice cryed out That he should not swear being unwilling to give more credit to his Oath than to his word Very pertinent to the meaning of our Saviour where he saith Swear not at all is that saying of Hierocles He that in the beginning said Thou shalt reverence an Oath did therein enjoyn us to abstain from swearing concering such thing as are contingent and of uncertain events For such things are so mutable and of so small an account that they are not worth an Oath neither is it safe to swear about them And Libanius inserts this amongst many other Vertues for which he highly extols a Christian Emperor That he was so far from Perjury that he feared to swear to what he knew to be truth A perjurio tantum abest ut etiam vera jurare vereatur XXII Faith may be given without an Oath Therefore in some Nations instead of Oaths they give unto each other their right hands which among the Persians is the strongest assurance of Faith that can be given And amongst other people they oblige themselves by other signs and that so strongly that unless he that shall so oblige himself do fulfill his promise he is held as execrable as if perjured But especially of Kings and Princes it is usually said that their faith given is as good as an Oath For such they should be that they may say with Augustus Bonae fidei sum I have a clear Reputation And with Eumenes I had rather lose my life than break my Faith Whereunto Gunther alludes where he saith No Oath more Sacred than the word of Kings Whereunto we may add that of Alexis Comicus If I but nod 't is firm as though I sware This testimony Isocrates gives of King Evagrius That he kept his word as Religiously as he did his Oath Cicero in his Oration for King Dejotarus highly commends Cajus Caesar for this That if he gave to any man his right hand it was sufficient to confirm any Promise that he made whether in Peace or War And in those Heroick times The elevation of the Royal Scepter was equivalent to the Oath of a King as Aristotle notes CHAP. XIV Of the Promises Contracts and Oaths of Soveraign Princes and States I. The opinion of some who hold that Restitutions to the full arising from the Civil Law appertain to the acts of Kings as such refuted as also this that Kings are not bound by their own Oaths II. To what Acts of Kings the Laws extend explained by distinction III. When a King is bound by his Oath and when not IV. How far forth a King is bound to what he hath promised without cause V. The use of what hath been said concerning the force of the Laws about the Contracts of Kings VI. In what sense a King may be said to be obliged to his Subjects by the Law of Nature only or even by the Civil Law VII A Right gained to Subjects how it may lawfully be taken away VIII The distinction of Things gained by the Law of Nature and by the Civil Law rejected IX The Contracts of Kings whether they be Laws and when X. How by the Contracts of Kings they that inherit all his Goods stand bound XI How by those Contracts they that succeed in the Kingdom may stand bound XII And how far XIII The free Grants of Kings when revocable and when not XIV Whether the true Kings be bound by the Contracts of them that invade or usurp the Kingdom I. Whether Kings may rescind their own Acts. THe Promises Contracts and Oaths of Kings and of such others as have the like Soveraign power have some questions peculiar to themselves as well concerning what power they have over their own Acts as concerning what they have over their Subjects as that which they have over their Successors As to the first of these it is questioned Whether the King himself hath the same power to restore himself to the full or to make void his own Contracts or to absolve himself from his Oath as he hath his Subjects Bodine was of opinion that a King being circumvented by another mans fraud by fear or error may for the same causes be restored to his own Rights as well in things appertaining to the lessening of his Prerogative as a King or in things appertaining to his private Estate as his Subjects may Whereunto he addes That a King is not bound by his Oath if the Contract agreed
on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Greeks do commonly understand Righteousness and by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
accrews unto the Common-wealth by securing their persons doth by much preponderate that which we may hope for in their punishment For his punishment may be required of him that sent him if he be willing which if refused then we can but make War upon him as being accessary to the crime by his approving it But some will object That it is better that one should be punished than a multitude engaged in a War But if he that sent the Embassador do approve of his Fact the punishment of the Embassador cannot free us from the Danger Now whether it be safest for the Common-wealth to connive and dissemble the fact or to run the hazard of a War will be the question On the other side the safety of Embassadors would be but slenderly provided for if they were to give an account to any but unto him that sent them For since the designs of them that send Embassadors and of those to whom they are sent are for the most part diverse if not contrary it cannot possibly be but that some of their Actions will seem to be criminous And although some are so manifest as not to admit of any doubt yet is the universal danger sufficient for the equity and benefit of an universal Law Wherefore mine opinion is That by the Consent of Nations that Common Custome which requires that every man that resides in a Foreign Countrey should conform himself to the Laws and Customes of that Countrey should except Embassadors who as they are imagined to be the persons of them that send them for so speaks Cicero of a certain Embassador Senatus Faciem secum attulerat He brought with him the Majesty of a Senate the Authority of a Common-wealth So may they be imagined to live in their own Countrey and therefore not bound by the Civil Laws of the place they are really in Wherefore if the offence be such as may safely be slighted it is either to be dissembled or the Embassador commanded to depart the Kingdom which as Polybius tells us was done unto him who procured the Flight of the Hostages from Rome The like was done by Stephen King of Poland to the Muscovite Embassadour and by Queen Elizabeth to the Scottish and Spanish Embassadors For when Mendoza the Spanish Embassador was found practising with Throckmorton and others to bring in a Foreign Power into England and to depose the Queen he being a man of a Turbulent Spirit and abusing the priviledges of an Embassador was commanded to depart the Realm But when the Bishop of Rosse delegated Embassador from the imprisoned Queen of Scots was found designing means both within the Kingdom of England and without to raise Rebellion and to procure a Foreign Invasion It being demanded of the most Learned Civilians of that Age Whether an Embassador raising Rebellion against the Prince to whom he was sent might enjoy the priviledges of an Embassador it was answered That he had thereby lost his priviledge and might be punished as Camden records it Anno 1571. and 1584. And we may also remember that at another time the Romans caused the Tarentine Embassadors to be whipt with Rods for conveying their hostages out of Rome but this was done because the Tarentines being conquered began then to be under the Jurisdiction of the Romans So we read of Charles the Fifth that he commanded the Embassador of the Duke of Millain as being his Subject that he should not depart his Court without leave as Guicciardine relates it But in case the Crime be heinous and menacing present danger to the State then is the Embassador to be sent back to his Master with demand That he either punish him or deliver him up to be punished as we read of the Gaules that they demanded the Fabii to be delivered up unto them But as I have often said before All humane Laws are so made that they oblige not in extream necessity the same may also be said of these Rights of Embassadors Wherefore that we may prevent some imminent danger especially to the Common-wealth if no fitter means can be thought on we may both apprehend and examine him as the Roman Consuls did the Embassadors of Tarquin All intercourse by Letters being in the first place prevented as Livy directs †Literarumim-primus habita cura ne interciderent Plut. Vit. Pet. Off. l. 3. Pelopidas was imprisoned by Alexander Pheraeus for that being an Embassador he stirred up the Thessalians to liberty But in case an Embassador shall attempt to assault another man by force of Arms surely he may be killed not by way of punishment but by way of Natural Defence So the Gaules might have killed the Fabii whom Livy brands as being the Infringers of humane Right Wherefore when the Herald in Euripides attempted by force to rescue the Suppliants he was by force resisted and when the Herald demanded of him Dur'st thou an Herald hither sent to smite He was answered Yes if that Herald first begin so fight And because that Herald did act by Force and Violence he was slain by the people of Athens as Philostratus records in the Life of Herod By the like distinction Offic. l. 3. doth Cicero resolve this Question Whether a Son ought to accuse his own Father being a Traytor to his Countrey Namely if the Danger be great and imminent he ought by way of prevention but in case the danger be past he ought not by way of punishment for the Fact The very Name of an Embassador saith Theodatus the Goth to the Emperour Justinian's Embassador is with all men held as sacred and honourable which honour they may justly claim whilest they uphold their dignity by their modesty For most men are of opinion that it is lawful to kill an Embassador if he be injurious to the person of him to whom he is sent or shall defile himself by violating the Rights of Marriage And when some Embassadors did alledge that they were so far from the suspicion of committing Adultery that they could not stir abroad without a Guard they prudently added That if an Embassador did deliver no other Message Camdâ—n anno 1571. than what he received from his Master though it were never so unpleasant he was not faulty but he that sent him For there was nothing committed unto him but that he should faithfully discharge the Commands that were given him V. He is not bound to these Laws of Embassages to whom the Embassador is not sent This Law of securing Embassadors from Force or Violence obligeth him to whom they are sent at least when they are admitted as if from that time there had passed between them a Tacit Covenant But before they are received they can claim no such priviledge because he to whom they are sent may haply declare that they shall not be received And if so then they shall be accounted as enemies As the Romans premonished the Aetolians and as the same Romans long since by an Edict signified to the
not into the world to invade another mans Glory but to communicate his own not to usurp an earthly Kingdom but to confer an heavenly St Paul tells Timothy That a Bishop should be no striker 1 Tim. 3.2 Nor rule by constraint or compulsion for to dâ—ive by force better becomes a King than a Bishop Princes may exercise their Power in punishing Offenders to deter them from doing evil De Sacerd. l. 2. But what we do saith Chrysostome must be not by coercion but by perswasion whereunto he adds this Reason For God crowns not our forced but our voluntary or as St Paul speaks our reasonable service Ad Eph. 1.4 So in another place It is our duty to instruct perswade exhort and reprove but not to command or to compel Consiliariorum locum obtinemus We serve as Councellors to advice and to give our Opinions but still we leave our Auditors to their free choice whether they will act accordingly or no We have no such power given us as to restrain men from sinning by severe punishments Whence it is evident that Bishops as such have no Right of Domination over men In Epitaphio Nepotiani as Kings and Princes have St Hierome distinguishing between a King and a Bishop concludes That the Power of a Bishop is much inferiour to that of a King for a King may enforce to an unwilling obedience but a Bishop hath no power but over such as are willing to obey him Episcopus docet ne Judex inveniat quod puniat The Bishop instructs and admonisheth that the Magistrate may find no cause to punish It was well said of Frederick the Emperour concerning the Pope Ecclesiam regat ille suam divinaque jura Temperet Imperium nobis fascesque relinquat Let him his own Church rule by Laws Divine But let the Sword and Scepter still be mine And when Suenno King of Denmark stood Excommunicate William Bishop of Rosâ—hil in opposing himself against him at his entrance into the Church with his pastoral staff and exposing his breast naked to the officers of the King who offered to draw upon him did therein perform the office of a good Bishop The like did St Ambrose to the Emperour Valentinus as we have declared above Bo. 1. ch 4. §. 5. but whether it be lawful for Kings themselves to make War upon such as have rejected Christianity by way of punishment we have already elsewhere discourst in the Chapter of Punishments as far as sufficeth to our purpose XV. The pretence of fulfilling of prophecies no cause of War And hereof also I shall give my advice and that not in vain but because I foresee by comparing these modern times with those long since past much mischiefs likely to ensue unless in time carefully prevented that the hopes we conceive that some things are due unto us by our own interpretation of some Divine Prophecies can be no cause of a just War Zozimus records it of Nicomedes the Son of Prusias that mis-appling a Prophecy of one of the Sibyls by the perswasion of Attalus made War against his own Father the like he and Ammianus relates of one Theodorus so doth Procopius of John of Cappadocia In the time of the Emperour Gratian. For besides that those Prophecies which are not fulfilled cannot certainly be understood without a Prophetick Spirit the very time of the accomplishment of such as are certain may be hidden from us And lastly the bare prediction unless it be backed with an express command from God gives no right to any man sâ—eing that God permits such things as he predicts to be sometimes brought to pass by wicked men and by wicked actions For the Books of the Prophets are shut and sealed up until a certain time so that they cannot be understood Dan. 12.4.8.9 The Vision that the Prophet Habbakkuk saw concerning the judgments to fall on the Chaldaeans was not immediately to be inflicted on them But it was to be fulfilled in its appointed time In the end whereof saith that vision it shall speak and not lye though it do tarry yet was the Prophet to wait for it for it shall surely come to pass and not stay Hab. 2.3 Time then is the best interpreter of Prophecies St Jerome upon that place of Daniel before-recited writes thus If the Prophet did hear and not understand what will they do who presuming on their own understanding have published this Book which is sealed up and until the time come for its accomplishment So Procopius concerning the Oracles of the Sibyls Which saith he I believe are beyond all humane power to unfold until the time come when they shall be fulfilled Let Divines therefore take heed how they undertake to unriddle Prophecies and let Politicians beware how they give credit to over-arrogating Divines though the things predicted were certainly to come to pass yet are the times and means when and whereby they are to be accomplished very uncertain and therefore it is no dishonour to profess our ignorance of them Eorum quae scire nec datur nec fas est docta est ignorantia scientiae appetus insaniae species Some kind of madness it is to desire to know those things which are therefore screened from us that we should not know them The secret things belong unto God but the things revealed unto us Deut. 29.29 XVI Nor a debt not strictly due but some other way Thus also is it to be observed that in case any thing be owing to a man not strictly out of justice but arising from some other vertue as from liberality favour mercy love or the like as it cannot be recovered by any course of Law so neither can it be required by War For to either of these it sufficeth not that what is required is for some moral reason to be done But besides that it is necessary that there should be in us some kind of Right unto that such a kind of Right as the Laws both Divine and Humane do sometimes give even unto such things as are due by other vertues which when it happens then it becomes a debt after a new way which now appertains to justice But this being wanting the War that is made for this cause is unjust as was that War made by the Romans against the King of Cyprus or ingratitude For he that doth a courtesie to another hath no Right to exact thanks otherwise it were not a courtesie but a contract or debt XVII Though the War be just yet the manner of prosecuting it may make it unjust It is also to be observed that though there be a just cause of War yet may this just cause be spoiled by the access of some vice that cleaves to the action from the mind of the Agent either that something else not by it self unlawful doth more efficaciously move us to the War than the Right it self as when we have a greater prospect unto Glory or when some kind of profit either publick or
Christian Doctrine X. Single Combats permitted Near of kin unto this are single combats between Competitors the use whereof is not altogether to be rejected for where two persons standing in competition for one thing which cannot be divided are ready to embroil a whole Nation in blood It were much better and more just that one should perish for all than that all should perish for one only In which Case that of Jocasta in Seneca is good advice Plut. Otho Theb. Rex sit è vobis uter Manente regno quaerite Try which of you shall reign But let the Kingdom still remain And this if not justifiable in the competitors themselves yet may it well be accepted of by the people if offered as being of two evils by much the lesser Thus Metius in Livy bespeaks Tullus Lib. 5. Let us agree about some way whereby it may be determined whether of us two shall reign over the other without the effusion of so much blood or the slaughter of either of our people Strabo set it down as an ancient custom among the Grecians And Aeneas in Virgil accounted it a very just thing that the quarrel between Turnus and him should have been thus decided Aen. 11. Fitter 't had been for Turnus thus t' have died And for this cause it was that M. Anthony challenged Caesar to a single combate as Plutarch records Vit. Ant. Sure it is that amongst other customs of the Ancient Francks Agathias highly commends this whose words being worthy of Eternal Memory are to this purpose No sooner did any quarrel arise between their Kings but immediately they betake themselves to their Arms they raise Armies and march against each other so furiously as if nothing but an absolute conquest could end the controversie but yet as soon as the Armies met and faced they presently laid aside all animosity and made peace thereby enforceing as it were their Kings to dispute their grievances rather by Law than Arms or if that pleased them not then to end their quarrels with the peril of their own lives only as judging it neither just nor reasonable nor indeed agreeable to their national customs for their Kings to sacrifice the Commonwealth to their private hatred wherefore they instantly disband their Armies reconcile their Princes and make Peace Tanta in subditis cura justitiae patriae amor in regibus animus placidus suis obsequens So great in the subjects was their esteem of justice and love to their Country and in their Kings their moderation of spirit and their compliance with the people in order to their common safety XI In cases equally dubious the present occupant hath the best right Although where the equity of the cause is doubtful both Parties are obliged to seek after conditions of peace to prevent the miseries of War yet doth it more concern him that demands than him that enjoys what the other requires as in the like equal cause Melior est possidentis conditio The title of the present occupant is presumed to be best as being most agreeable not only to civil but to natural Right the reason whereof we have already given elswhere out of Aristotle's Problems whereunto we must here add That War cannot be lawfully made by him who though he know his title to what he claims to be good yet cannot produce evidence sufficient to convince the present occupant of the illegality of his possession because he hath not a Right to compel his Adversary to leave his possession XII If neither be possest then a partition is just Where the Right is equally ambiguous and neither party in possession or both equally then he is to be reputed unjust that shall refuse an equal partition of the thing controverted being offered unto him XIII Whether a war may be on both sides just explained by many distinctions By what hath been herein said it will be no hard matter to resolve that question which is so frequently controverted Whether a War in respect of the principal promoters of it can be on both sides just where we must first distinguish between the various acception of the word Just * So Gratian distinguisheth justice into that which respects the cause the order and the mind c. 11. q. 5. post C. Episcopus For a thing may be said to be just in respect of the cause or according to the effects Again a thing a may be just in respect of the cause either according to the special and strict acception of justice or according to its more general acception as it comprehends whatsoever in equity or honesty ought to be done Again the word Just taken in its special signification may be subdivided into that which respects the work done or into that which respects the mind of him that doth it for the agent may sometimes be said to do justly whilst he doth not unjustly though that which he doth be not just As Aristotle * Eth. l. 5. c. 10 11. Greg. rightly distinguisheth between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to do unjustly and to do that which is unjust Bonis male utuntur qui temporali lucro juste judicant They make ill use of things in themselves good who do justice for rewards sake because it is the hopes of gain and not the love of justice that excites them to defend the truth Now in this special acception of the word Just and as it relates to the thing it self no War can be on both sides just as neither can any other contest be Quia facultas moralis ad contraria non datur per rei ipsius naturam Because the very nature so the thing about which the dispute was will not admit of a moral power to things that are contrary as namely to do a thing and yet to oppose the doing of it But yet it may very well be That neither of the Parties warring against each other doth unjustly because no man can be said to do unjustly but he that knows that which he doth to be unjust But many men do not know that they do amiss though that which they do be in it self unjust so when men go to Law they may justly that is with a good mind and intention do it on both sides because they do both conceive that they are in the right To some things the Right is not discernable whose it is and then whilst each endeavours to take that from another which he thinks belongs to himself who can condemn either of injustice for of many things as well in point of Right as in matters of fact whence Right ariseth men are ignorant Now in the general acception of the word Just that is said to be just in the doing whereof the Agent is altogether innocent for the act may be unjust and yet the Agent blameless by reason of his insuperable ignorance An example whereof we have in such as being through no default of theirs ignorant
to be lamented whosoever therefore shall with any remorse consider those so great so horrid and so direful effects of War cannot but confess that it is miserable but he that can feel them or think upon them without sorrow much more he that can glory in the success of them Ideo se putat beatum quia humanum perdidit sensum Therefore thinks himself happy because he hath lost all sentiments of humanity So the same Father in another place tells us that Id de Civit Dei lib. 4. c. 15. Belligerare malis videtur felicitas bonis necessitas Good men make War their refuge but wicked men make it their delight And were there nothing of injustice in the War yet to be enforced unto it that is in it self miserable saith Maximus Tyrius whereunto he adds Wise men never make War but by constraint whereas fools fight for pleasure and gain Lib. 13. The Lacedemonians in Diodorus considering those great enmities and animosities likely to arise from War thought themselves bound in duty to declare before the Gods and unto all good men that they were not the Authors of it Plutarch brings in some making this objection But hath not Rome much improved her self by War Whereunto he answers 'T is true indeed she hath so in the opinion of those who place their greatest glory in Riches in Pleasure Wantonness and Martial Power which are but the dregs of Honour but not in theirs who place their glory in the safety of their People in meekness justice and contentation It was therefore worthily said of Stephanus the Phiysician unto Cosroes King of Persia To thee O King who art wholly conversant in blood and slaughter in subduing Kingdoms and depopulation Cities other glorious attributes may be due but surely thou canst never hope by these ways to be esteemed good for as no good man will greedily covet that which is anothers so Non est homini homine prodigè utendum as Seneca tells us Aelian lib. 14. c. 2. It is no point of Honour to be prodigal of humane Blood Philiscus advised Alexander to be emulous of Glory but not by making himself like unto a Plague in depopulating Cities and laying whole Kingdoms wast Nothing can add more Glory to a King than to provide for the safety of his Subjects that they may live in Peace Nat. Hist l. 7. c. 25. Pliny after he had recounted so many famous Battels gained by the Dictator C. Caesar wherein were slain as he there computes Eleven hundred Ninety two thousand men adds this I do not reckon it as any part of his Glory to have done so great wrong to mankind however provoked Philo in the life of Moses observes That though the killing of Enemies in War were by the Laws permitted yet whosoever did kill a man though justly though in his own defence though compelled thereunto against his will did notwithstanding contract some guilt unto himself in respect of that common kindred and alliance between man and man which was derived from the supreme Cause wherefore expiations and purgations were thought necessary to cleanse them from that crime which seemed to be committed by them If then by the Hebrew Laws He that killed a man though against his will Pollutus esset hostili quidem attamen sanguine was to betake himself to one of the Cities of refuge And if God would not permit David to build him a Temple because he was a man of blood though of his enemies that is as Josephus writes because he had made many Wars which by the Law was permitted If among the Ancient Greeks he that had slain a man though accidentally Lib. 7. cap. 4. or in defence of himself had need of expiation Who cannot see how unhappy a thing it is and by all means to be avoided voluntarily to engage our selves in a War though haply not unjust Surely among the Greek Churches that most Christian Canon was long in force whereby he that in what War soever had slain a man though an enemy was not by the space of three years admitted unto the Sacrament CHAP. XXV For what Causes a War may be undertaken for others I. That a War may justly be undertaken by a Prince for his Subjects II. But yet it is not always to be so undertaken III. Whether an innocent Subject may be delivered up to an enemy to prevent a War IV. That a War may justly be undertaken in the behalf of our Confederates equal or unequal V. As also for our Friends VI. Yea and for any man VII Yet may it also be omitted without blame if it endanger himself or cannot be done without the death of the invader VIII Whether that War be just that is made to relieve another mans Subjects this explained by a distinction IX All those military consociations and mercenary succours that respect not the equity of the Cause are unjust X. To engage in War for spoil or pay only is wicked I. A Prince may justly make War for his Subjects ABove when we treated of such persons as had a Right to make War it was said and shewed That naturally every man had a power to vindicate not only his own but the right of another †See lib. 1. c. 5. wherefore look what Causes do justifie a War undertaken for our selves the very same do justifie a War made for another But our principal and most necessary care should be for our own Subjects whether they be our Domesticks or such as live under our Civil Government for they are a part of the Governour as we there shewed Josh 10.6 Persicor 2. Thus Joshua we read made War in defence of the Gibeonites who had yielded themselves unto him It is not sufficient to denominate a Man Just that he wrongs no man saith Procopius unless he also be carefull to protect those from injuries who for that very end have put themselves under him Our Ancestors saith Cicero to the Roman Senate did often make Wars in the behalf of their Merchants and Mariners when they have been abused by Strangers Verr. 2. And in another place How many Wars saith he did our forefathers undertake to revenge the wrongs done to the Citizens of Rome when their Seamen have been imprisoned and their Merchants spoiled Yea and the very same Romans who refused to take Arms in the defence of a People that were their Confederates thought it necessary to defend the same People when they had surrendred themselves and so became their Subjects Thus do the Campanes bespeak the Romans Though ye refused to assist or defend us against our enemies whilst we were your Friends and Confederates yet now that we are your Subjects you will certainly protect us Whereupon Florus saith That the Campanes made that League which they had formerly contracted with the Romans more strong and inviolable by their voluntary surrender of all they had unto them for it agreed not with the Faith of the Romans
drink new wine with him in his Fathers Kingdom He knew very well that they understood him as of a temporal Kingdom whereof they were full of hopes even unto the very Day of his ascension And thus in another place he speaks to the people in Parables lest hearing they should understand that is unless they should bring with them such reverence and attention as was requisite in order to the right receiving of his pure Doctrine As to the latter use of these Amphibologies Amphibologies amongst prophane Authours Tacitus will furnish us with the example of one Lucius Vitellius who being urged by Narcissus to unriddle himself and to speak the truth plainly could never prevail but still he gave ambiguous and doubtful Answers such as might incline them to that whereunto he would have them led So the same Tacitus in another place speaking of Tiberius saith Tacit. Ann. lib. 6. Ita compositus ut ex eventu rerum adversa abnueret vel prospera agnosceret He did so artificially compose his Answers that expecting the event he might either renounce the Plot if it succeeded not or owne it if it prospered Much like unto that of the Oracle to Croesus If Croesus over Halis go A Kingdom shall he overthrow Which Croesus understanding in a wrong sense instead of conquering Persia lost his own Kingdom of Lydia The like we read was sent from Rome to some that waited but for the Popes fiat to have killed King Edward Edvardum occidere nolite timere bonum est Which being written without any Point or Comma would admit of two contrary expositions There is a very notable Saying among the Hebrew Doctors Si quis norit uti perplexiloquio recte sin minus taceat If a man being put to answer insidious questions can either prevent or avoid them by Amphibologies let him if not let him not answer at all For as St Chrysostome observes He is not to be reckoned as a Deceiver that useth Amphibologies to a good end but he that useth them to a bad But yet in some Cases to use them is not allowable as namely when either the honour of God or our charity to our Neighbour when our reverence to our Superiours or the nature of the thing it self whereof we treat requires that we should clearly unmask our selves and declare the truth then to use these Amphibologies is not only indecent but impious So in Contracts we have already said Whatsoever the nature of the Contract requires to be understood should be declared So of Laws which should be the Guides of mens manners it is required that they should be exprest in the plainest and most significant words that may be found Now in the Case of Contracts may that of Cicero be fitly understood That lies ought to be excluded out of all humane commerce which he seems to have borrowed out of that old Attick Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In a Market nothing ought to be spoken but truth In which Cases the word mendacium is to be taken so largely as to comprehend all doubtful and ambiguous Phrases which we speaking properly have hitherto excluded from this Notion of lying XI The form of a lye as it is unlawful wherein it consists It is required therefore to the nature of a lye commonly so taken that what is either spoken or written or by any other signs exprest cannot otherwise be understood than in such a sense as is different from his mind that so declares it But to a lye strictly taken as it is naturally unlawful there is necessarily required some peculiar difference which if rightly understood at least according to the common acception of Nations can be nothing more than the violation of his existing and remaining right with whom we converse For certain it is that in respect of himself no man can lye let him speak never so much falshood Where by Right I understand not every Right and what is extrinsick to the thing but that which merely relates unto the matter in hand which is nothing else but his freedom with whom we discourse to judge at the conceptions of our minds which as by a silent Contract we are presumed to owe unto him For this and no other is that mutual obligation which men were willing to introduce so soon as language was invented or those other notes or signs generally received as significant of our inward thoughts without which obligation that invention had been altogether fruitless And therefore amongst the Hebrews he that deprived a man of the means of knowledg was said cor furari Cor furari to steal away his heart as Jacob is said to steal away the heart of Laban in that he did not acquaint him with his purpose to depart from him Gen. 31.20 26 27. Gen. 31. â—â— 26 27 Now it is also requisite that this right or liberty to judge by such words or signs at their inward conceptions should remain intire at that time when we discourse For possible it is that though there was such a freedome yet it is then taken away or may be by some other right that is supervenient As a Debt that was may cease to be so by reason either of an Acquittance given or a failing of the performance of some Condition Again it is required That the right that is violated be his with whom we discourse and not a By-standers or any other mans As in a Contract there ariseth no injustice but by the violation of the right of one of the Contractors Hence haply it is that after Simonides Plato refers the speaking of truth to justice And that St Augustin himself inserts into the definition of a lye That it be spoken animo fallendi with a purpose to deceive And Cicero Plato and oothers would have the speaking of truth to be referred to the fundamentals of Justice And that that lying that is forbidden the Scriptures do often describe by bearing false witness against our Neighbour Instit 6.18 whereunto Lactantius hath respect where he saith That no untruth ought to be spoken at any time with an intent either to hurt or deceive our Neighbour But this right may be taken away as I have said as by express consent of him with whom we converse when he declares before he speaks that he will speak false and he to whom he declares it doth permit it So by a tacite consent or on a presumption grounded upon just reason or by the opposition of anothers right which by the common judgment of all is most prevalent From these premises rightly understood many inferences may be drawn in order to the reconciling of those different opinions formerly mentioned XII It is lawful to speak untruth to Infants and Mad-men As first In case we converse with either a Child or a Mad man if what we say be false it cannot be imputed as a lye because as Quintilian saith it is universally permitted as profitable to instruct Infants by Tales and Fables
Conquest This also is plain by that Answer which the Romans gave unto the Arunci We Romans do conceive that whatsoever any man wins by his valour from his Enemies he may bequeath to his Posterity as being by the best of titles his own So in another place they return this in answer to the Volsci We account that which we conquer from our Enemies to be the best Estate we have Dionys Halicar l. 7. seeing that this is not only adjudged ours by our own Laws but by a title derived more truly from the gods than from men and approved of by the constant practice of all Nations both Greeks and Barbarians we shall not therefore yield up any thing cowardly of that which we have gotten by valour nor calmly forego what by the Sword we have gained Maximum hoc probrum foret Livy lib. 7. quae virtute ac fortitudine quaesita sunt ea per formidinem aut stupotem amittere For this would be the greatest dishonour unto us if either through fear or stupidity we should lose that which by virtue and mere manhood we have acquired And this is also confest in that Answer of the Samnites We have gained this by Conquest which Law is of all acquisitions the justest By this Right the Romans held Syria as Appianus notes Lib. 12. without restoring it to Antiochus Pius from whom Tigranes that great enemy to the Romans had formerly taken it adjudging it more equal that Syria should be governed by the Romans who had expelled Tigranes than by the Seleucidae who had been ejected by Tigranes Yea and Antiochus himself was of opinion That that was the most just and lasting possession that was got by the sword Polyb. in execrpt Legat. n. 72. Justine brings in Pompey answering the same Antiochus who after the recession of Tigranes into Armenia demanded the Kingdom of Syria out of which he had been by the same Tigranes driven and into which after eighteen years he had been restored by Lucullus in these words Mithrid civil 1. That he would neither with nor without the consent of the Syrians set such a King over them as could be content to hide himself in a corner of Cilicia all the while that Tigranes held Syria Justin lib. 40. And now the same Tigranes being vanquished by the Romans would demand the reward due to other mens labours And therefore as he had not taken the Kingdom from him so that Kingdom which himself had left unto Tigranes he refused to give him because he knew not how to defend it So also those parts of Gallia which the Cimbri took from the Gauls the Romans afterwards taking held as their own Nor did the French restore to the Romans that part of Italy which they took from the Goths VIII That things taken from the Enemies are not always their 's that take them But here a more knotty Question ariseth concerning the persons to whom the spoils taken from the enemy in a solemn War belong whether to the State or to every person of or among the people The Modern Lawyers do vary exceedingly in their opinions concerning this Point for most of them finding it in their Civil Law That capta sunt capientium Things thus taken are theirs that take them And in the Body of the Canon Law That the spoil is to be distributed by publick Authority do one from another as is usual deliver their opinions thus That primarily and by original Right he that first apprehends them hath the best title to them but notwithstanding that they are all to be brought to the General who may distribute them amongst his Souldiers But this opinion is not more common than false and therefore that we may hereby learn how unsafe it is in such doubtful cases to be biassed by so weak an Authority I shall the more accurately confute this opinion We cannot indeed deny but that by the consent of Nations this Question may be determined either way namely That the Spoil may belong either to the people or to him that bears the charge of the War or to those particular persons that with the hazard of their lives do first lay hands on it But the Question here is Not what they may determine in this Point but what they have or do determine of it whereunto I answer That the things of an enemy by the consent of Nations are no otherwise their enemies that take them than as they belong to none as we have already explained it from that Saying of Nerva the Son IX That possession and dominion may be gained for us by another But the things that are no Bodies are indeed theirs that first take them But they may be said to take them that employ others to take them as well as they who take them for and by themselves So they that are employed by others to catch Fish Fowl Deer or Pearls whether they be Children Servants or Freemen do not appropriate them unto themselves but take them for those that employ them It was well said of Modestinus the Lawyer L. eaquae D. de acq dom Whatsoever is naturally gained as possession is may be gained by any man whomsoever we will appoint to do it for us So likewise Paulus the Lawyer Possession is gained by the mind and by the body but then the mind must be our own but the body may be either our own or anothers And in another place Possession may be taken for us by either a Proctor an Attorney or Guardian that is if it be done by them with that mind and purpose as to make it ours Thus it was among the Grecians they that overcame in the Olympian Games obtained indeed the prize but not for themselves but for those that sent them And the reason is because naturally one man may make use of another as his Instrument if both are willing Wherefore the difference that is said to be between persons bond and free as concerning acquisitions respects only the Civil Law and appertains properly to civil acquisitions as appears by that place of Modestinus before cited And yet the Emperour Severus drew these nearer to the pattern of natural acquisitions not only for profit as out of Jurisprudence as he himself acknowledgeth Setting then aside the Civil Law that saying will hold good That what a man may do for himself by himself that he may also do by another and it is the same thing to do it by another as to do it by himself X. A distinction of Acts done in War into publick and private Here then we must distinguish between those acts which in a War are truly publick and those private acts that are done by the occasion of a publick War By these private acts the Goods of an Enemy may primarily and directly belong to the private Souldier but whatsoever is gained from an Enemy by such acts as are publick is due to the people or to him that maintains the War Upon this Right
Supreme Magistrate according to the Custom of Nations CHAP. VIII Of Empire over the Vanquished in War I. That a Civil Empire whether in a King or a people may be acquired by War and what the effects are of such an acquisition II. Such an Empire may be gained over a people as is merely despotical and then they cease to be a City III. Sometimes a mixt Government is acquired IV. Sometimes even the incorporeal things of the people may be acquired by War where also is handled the Bond given by the Thessalians to the Thebans forgiven by Alexander I. That the Civil Empire as well in a King as people may be gained by War IT is no marvel that he who can bring into subjection every particular person can also subdue the Body Politick whether it be a City or part of a City and whether that subjection be merely civil or merely despotical or mixt This Argument we shall find used by Seneca in that Controversie which is de Olynthio where he brings in one pleading thus He is my Slave whom I bought by the right of War and very expedient it is for you O ye Athenians not only to acknowledge my Title to be just but to defend it otherwise notwithstanding all your great Conquests your Empire also must be confined within your ancient Territories Wherefore Tertullian acknowledgeth That Empires are gained by Armes but enlarged by Conquests So likewise Quintilian Kingdoms Nations and the Bounds of Cities and Countries are determined by the Rights of War Alexander in Curtius claims by this Right saying That Laws are usually given by the Conquerour and received by the Conquered Thus Minio in his Oration to the Romans Liv. l. 35. Why do ye Romans send every year your Praetor with the Ensigns of your Empire the Rods and Axes into Syracuse and other the Grecian Cities in Sicily for which ye can give no other reason but this That having conquered them by your Armes you impose upon them what Laws you please De Bello Gallic Ariovistus in Caesar's Commentaries saith That by the Law of Armes the Conquerour may govern the Conquered in what manner he pleaseth and that the custom of the Romans was to govern those Cities which they had by their Armes subdued not after other mens prescriptions but according to their own will and pleasure Justine likewise out of Trogus tells us That before Ninus Lib. 1. Princes that made War sought not Empire but Glory and therefore were contented with the honour of the Victory but sought not to enlarge their Kingdoms and that this Ninus was the first that ever incroached upon another mans dominions and from him it became a custom Bocchus in Salust pleads That he took up Arms only to defend himself for that part of Numidia from whence he had driven Jugurtha was made his by the Law of Armes But a Right may be gained by a Conquerour either so far only as it was in the King or some other Governour and then he succeeds in his Right only and no farther So Alexander after the Battel at Gaugamela was saluted King of Asia And the Romans also claimed unto themselves all that was Syphax's by the Right of War But when the Huns pleaded to the Romans That the Country of the Gepidae was theirs because they had taken their King Prisoner the Romans denied it because the Gepidae were governed by a Prince rather than by a King for that the Kingdom was not Patrimonial And therefore they conclude That he could not lose more than what was his own Or it may also be gained as it is in the people and then the Conquerour hath as much power to alienate it as the people had and thus do some Kingdoms become Patrimonial as I have elsewhere said Book 1. Ch. 3 Sect. 2. Thus the Persians in Menander plead for the Territories of the City Daras For say they since the City Daras it self is by the Right of War subdued by us it is but reasonable that what belonged to that City should likewise be ours Procop. Vand. 2. So Belisarius having conquered the Vandals would have had Lilybaeum in Sicily yielded up to the Romans because as they pretended the Goths had before given it to the Vandals which the Goths denied II. Such an Empire may be gained over the people as is merely despotical Or an Empire may be yet more absolutely gained For such a Government may by War be gained as that which was before a City may cease to be any more a City but be rather reduced as it were into a Family which may be done either by adding it unto another City as Kingdoms were by the Romans annexed to their Empire as Provinces or by annexing it to no other City but by destroying its Charter and nulling the Government thereof As for example When a King maintaining the War at his own proper charge doth so enslave the people that in his Government over them he minds his own private gain and interest only but neither their profit nor safety which kind of Government is Despotical and not Civil Aristotle thus distinguished them Of Empire De Repub. lib. 7. saith he some are altogether fitted to the profit of the Prince others for the profit and safety of the Subjects this is proper to Monarchy that to Tyranny Now the people that are held under this kind of Government are no longer Citizens but a multitude of Servants in a great Family It was well said of Anaxandrida Servorum nulla est usquam Civitas A multitude of Slaves can never constitute a City Which distinction is allowed of by Tacitus Annal. lib. 12. He did not carry himself saith he in his Government as a Lord over his Slaves but as being chief among his Fellow Citizens So Xenophon of Agesilaus What Cities soever he reduced under his obedieâ—ce he made free by exempting them from the slavery which Captives pay unto their Lord and by contenting himself with that obedience that a free people do willingly yield unto their natural Prince III. A mixt Government is sometimes got by War Whence we may understand the nature of a mixt Monarchy that is between that which is Despotical and that which is Civil as namely when our servitude is mixt with some kind of personal liberty Thus we read that to some people the use of Armes are forbidden by the Conquerour and that no Iron shall be wrought into any thing but such Instruments only as are necessary for ploughing the Earth and such like So some people being conquered are enforced to change their language others to alter the whole course of their lives and the like IV. That even the incorporeal things of the people may be by a War gained Now as whatsoever any particular Prisoner had when he was taken was by the Law of Arms his or theirs that took him so whatsoever belongs to the people in general is his or theirs that subdue them if they will take
that City may stand no less obliged than their Parents But for those that are unborn this reason sufficeth not but some others are requisite As the express consent of Parents together with the necessity of nourishing them and that even for ever or for affording them aliment and that so long only until their labour shall fully satisfie the charge of their maintenance If any Right beyond this be given to a Lord over such Children it proceeds from the too great indulgence of the Civil Law to the Lords themselves IX What may be done where Bond-slavery is not in use But in such places where this Right of making Men Slaves is not in use there the best way is to exchange Prisoners And next to this is to release them paying their ransoms which likewise should not be over great but moderate Neither can any man set down a certain rate but common humanity instructs us that it should not be so excessive as that the Prisoner being released should thereby want necessaries which are allowed by the Civil Law even unto such as through their own peculiar fact are fallen into debt In other places the ransome of Prisoners is prefixt either by mutual covenants or by the customs of the Countries Amongst the Graecians of old the ransome of a common Souldier was Mina a Pound that is of our Coin about three pounds two shillings and six pence We now a days require for every Souldier a Months pay In the War between France and Spain in Italy the ransome of every Horse-man was the fourth part of a Years pay unless he were a Captain or some other eminent Commander or that he was taken in a just Fight or at the storming of a Town as Mariana testifies Lib. 27. c. 18. Plutarch records it of the Corinthians and the Megarenses Quest Graec. That the War between them was prosecuted mildly and as it became Neighbours and Kinsmen If any man were taken Prisoner he that took him entertained him as his guest and taking his word for his ransom dismist him friendly whence arose the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one that by the courteous usage of his Enemy taken in the War makes him his friend But much more magnanimous was that of Pyrrhus so highly extolled by Cicero No wealth I ask nor ransome will I take 'T is Steel not Gold that must the Victor make Yet whoso after Fight shall chance to live To him his liberty I 'll freely give Pyrrhus thought no doubt that his cause was good but yet he was content to restore them to liberty whom some probable reason had induced to fight against him The like fact of Cyrus Xenophon highly commends As Polybius doth that of King Philip Cyropast l. 2. And Curtius that of Alexander Plutarch also records the same of King Ptolomy Vit. Demet. and of Demetrius that they strove whether of them should excel not so much in Arms as in clemency and benignity towards the vanquished Strabo l. 7. And Dromichaetes King of the Getes having taken Lysimachus Prisoner in War entertained him friendly as his Guest and understanding by the King how poorly and yet how obligingly the Getick Nations lived he chose ever after rather to make them his Friends than his Enemies CHAP. XV. Moderation in the acquiring of Empire I. How far internal justice permits the acquiring of Empire II. That by this Right to spare the Conquered is laudable III. Either hy mixing the Conquered amongst the Conquerours IV. Or by leaving them under their Government who before had it V. Yet sometimes placing Garrisons amongst them VI. Or by imposing on them tributes and such like charges VII The benefit that ariseth from such moderation VIII Examples and of the change of Government over such as are conquered IX The Empire though gained yet some part thereof ought to be left to the vanquished X. Or at least some kind of liberty XI Especially in matters that concern Religion XII At least the vanquished are to be treated with much clemency and why I. How far Empire may be gained by internal justice WHAT in equity is requisite or in humanity commendable being done to single persons is so much more being done to a Nation or any parts of it by how much the good or evil that is done to a multitude is more notorious than the same done to particular men Surely by a just War as other things so also the Right of soveraignty over the people and the very Right that the people have in the Government may be lawfully acquired that is to say so far as the greatness either of the punishment due to their crime or of some other debt doth warrant it Whereunto we may add so far as is necessary to secure the Conquerour from some great and imminent danger that otherwise may befall him But this Cause is for the most part mixed with others which notwithstanding as well in making of peace as in prosecuting the Victory is principally aimed at For in the other cases that the Conquerour remits the punishment or debt it is from his mercy But that security which in publick dangers exceeds moderation is cruelty Thus doth Isocrates advise Philip It will suffice thee so far to subdue the Barbarians that thou mayest secure the Peace of thine own Country II. To abstain from it commendable That which Salust records of the Ancient Romans is worthy of our imitation namely that they were so Religious That they they took nothing away from the conquered but the licence they took to do them wrong And in another place he tells us That wise men make War for Peace sake and sustain labour in hopes of rest Sapientes pacis causa Bellum gerunt Jugurth De Rep. l. 7. c. 14 15. c. 10. De Off. l. 1. laborem spe otii sustentant Not much discrepant is that of Aristotle The end of War is Peace as the End of Motion is rest To the same purpose is that notable saying of Cicero Bellum ita suscipiatur ut nihil aliud nisi Pax quaesita videatur War should be so made as if nothing else were thereby intended but Peace And in another place War should be undertaken for this cause only that we may live in Peace and not be injured Nor is this much different from what our Christian Divines teach us The end say they of War is to remove those things that disturb Peace Before Ninus his Raign Kings were studious to preserve the bounds of their own Empires but not to enlarge them Thus Alexander wrote to Artaxerxes the Persian Manendum cuique intra fines suos nihil novando Every King ought to confine himself within his own Dominions and not encroach upon anothers neither should any man out of an uncertain hope invade the right of another but rest contented with his own All Kingdoms were at first limited with their own bounds neither were Kings so Ambitious of Empire to themselves as of glory
to their People and if they did make War it was not for Dominion but for the honour of the Conquest Now unto this Ancient Custome it is that St. Aug. laboured as much as in him lay to reduce us De Civit. Dei l. 4. c. 15. Let Princes saith he consider that it belongs not to good Kings to take pride in the enlargeing their Dominions for as he there adds Major est foelicitas vicinum habere concordem quam malum subjugare bellantem It is greater happiness to have a good Neighbour that is peaceable Lib. 5. cont Julian than to subdue a bad one that is troublesome Upon which account it was that St. Cyril commends the Hebrew Kings who always contented themselves with their own bounds without encroaching on their Neighbours which was the very sin for which the Prophet Amos did so severely reprove the Ammonites III. Which may be done either by intermixing the Conquerors with the Conquered Nearest unto this original draught of innocence comes that prudent moderation used by the old Romans What saith Seneca * Lib. de Ira c. 34. had our Empire been had not a wholesome providence taught us to intermix the Conquered with the Conquerours Our great founder Romulus as Claudius in Tacitus tells us †Annal. l. 5. Lib. 1. did so prevail by his wisdom that many people whom the rising Sun saw his Enemies the setting Sun saw his Subjects and Citizens Neither was there any thing that did more ruine the Lacedemonians and the Athenians than this That they always drove away the vanquished as Strangers Livy informs us that the Commonwealth of Rome was much augmented by the reception of the Conquered into their City whereof Histories afford us plenty of examples As of the Sabines the Albanes the Latines and so of the rest of the Italian Nation till at length Caesar first led the Gaules in triumph and afterwards admitted them to be of his Court and Council Cerialis in Tacitus thus bespeaks the Gauls Ye your selves are usually admitted to command our Legions Ye are they that govern not this only but others of our Provinces there are no places of trust from which ye are excluded wherefore as he there infers ye ought in all reason to endeavour all you can to preserve that life and Peace which ye though vanquished do equally enjoy with us the Victors Nay which is yet more admirable by the decree of the Emperour Antoninus all that lived within the Circle of the Roman Empire were made Citizens of Rome which are the very words of Vlpian whereupon Rome was then accounted as Modestinus affirms Communis Patria The common City or every mans Country Whereof Claudius thus Hujus pacificis debemus moribus omnes Quod cuncti gens una sumus To th' honour of this Prince it may be said That of the World he but one Nation made IV. Or by leaving the Government to the vanquished Another kind of moderation used in Victory is when the Government is left in the same hands either of King or People who hold it before the Conquest Thus Hercules bespeaks King Priamus Hostis parvi victus lacrymis Sen. Troad Suscipe dixit rector habenas Patrioque sede celsus solio Sed sceptra fide meliore tene By a weak Enemies tears ore'tane Take saith he thy Crown again Ascend thy Fathers Throne on high But henceforth rule more moderately So also the same Hercules having conquered Neleus gave his Kingdom to Nestor his Son Thus the Persian Kings were wont to leave their Kingdoms to the Kings whom they had conquered contenting themselves with the bare Victory Thus did Cyrus to Armenius Alexander to Porus. De Clem. lib. 1. c. 21. And this is it that Seneca highly commends in a Conquerour Nihil ex rege victo praeter gloriam sumere To take nothing from the Conquered besides the honour of the Conquest This is triumph over Victory it self and to declare that there was nothing to be found among the Conquered worthy of the Conquerours acceptance but the Conquest it self Thus Pompey having overcome Tigranes left him a part of his Kingdom to govern as Eutropius informs us And herein is Antigonus extold by Polybius That having brought Sparta under his absolute power Lib. 6. he gave the Citizens the free use of both their Ancient Laws and Liberties for which Act his praises were highly celebrated throughout all Greece Thus did the Romans give unto the Cappadocians whom they had conquered a power to use what form of Government they pleased and many Nations we may read of which being Conquered were notwithstanding left free Thus was Carthage left at liberty to live under their own Laws as the Rhodians pleaded to the Romans after the second Punick War Livy lib 32. And when the Aetolians told Quintius that there could be no firm Peace until Philip of Macedon were driven out of his Kingdom He answered That they were too severe in their censures as being unmindful of the common custome of the Romans who for the most part spared those whom they had in their power adding this withal Adversus victos mitissimum quemque maximum animum habere That he who was mildest towards the Conquered was ever held most magnanimous V. Sometimes by keeping of Garisons Sometimes though the Empire be restored yet the Conquerours security is also provided for Thus it was ordained by Quintius That the City of Corinth should be restored to the Achaians but withal That there should be left a Garison in Acrocorinth which also was afterwards withdrawn and that Chalcides and Demetriades should be detained until all fear concerning Antiochus should cease IV. Sometimes by imposing Tribute The imposition of Tribute is oft-times not only for the defraying the charges of a War but for the mutual security of both the Conquerour and the Conquered for the time to come Cicero in his Epistle to his Brother Quintus concerning the Grecians * Lib. 1. ad Quintum Fratrem Epist 1. writes thus Let Asia also consider That unless She be secured by the Roman Power She can never be without a Foreign War or Domestick Broils And since this Power that secures her cannot possibly subsist without Tribute good reason it is that She should be contented with sopme part of her wealth to purchase to herself perpetual Peace Thus doth Petilius Cerealis in Tacitus plead for the Romans Hist l. 4. with the Langres and other Gauls We say they though often provoked yet by the Right of Conquest do offer unto you one only Condition of Peace namely That ye pay your Tribute For Peace among Nations cannot be defended without Armes nor Armes without Pay nor can we pay our Souldiers without Contributions Hereunto likewise we may refer those other things mentioned before Lib. 2. c. 15. § 7. where we discoursed concerning unequal Laws as the Delivery of Armes of Fleets of Elephants the prohibiting the use of Weapons the raising of
Armies and such like whereby the Conquerour may be secured VII What profit ariseth from this Moderation But that the Conquerour should leave the Conquered possest of his own Kingdom stands not with humanity only but sometimes with policy Among Numa's Laws this is commended for one That in those Sacred Rites wherewith they worshipped their God Terminus Plut. Quaest Rom. qu. 15. he would have no bloud spilt thereby intimating That nothing could more conduce to a lasting Peace between Neighbour Princes than to content to live themselves within their own Bounds It was very well said of Florus Difficilius est Provincias obtinere quam facere viribus parantur jure retinentur It is much more difficult to keep Provinces than to make them for they may be gained by force but they must be kept by justice Not much unlike is that of Livy Lib. 37. Facilius parari singula quà m teneri universa Particulars are more easily gained than Vniversals kept Nor that of Augustus in Plutarch It is better to govern our own well than to be possest of a greater Empire Whereunto we may add that Saying of Darius's Ambassadour to Alexander A foreign Empire is full of danger Thou wilt find it very difficult to hold what thou canst not grasp Some things may be easily gained yet not so easily kept How ready are our hands to catch at that which when they have they cannot hold Which Calanus the Indian Plut. vit Alex. and before him Oebarus Cyrus's Friend did very well emblem out by a dryed Oxe's Hide which being prest down with our feet on the one side riseth instantly on the other And Titus Quintius in Livy by a Tortoise Lib. 27. Val. Max. 4. 1. who whilst he gathers himself up within his Shell is safe but as soon as he thrusts out any one part he is exposed to danger Plutarch thus relates That when the Achaians consulted about the taking of the Island Zant he disswading from it told them That it was a dangerous attempt if like the Tortoise they thrust their head beyond Peloponnesus And herein is that of old Hesiod verified which Plato likewise thus applies Plato de Leg. 3. Dimidium plus toto That sometimes it is better to take up with the one half than to covet the whole When some Nations as Appian notes would willingly have annexed themselves to the Roman Empire they were refused And over other Nations they thought it fitter to appoint Kings than to unite themselves as Provinces And in the judgment of Scipio Africanus the Roman Empire was in his time of so large an extent that as to effect more might well be thought greediness so if they could but keep what they had they might be abundantly happy Wherefore that Prayer whereby in their solemn purgations they invoked the Gods to prosper and enlarge their Empire he so changed that he prayed only That they would preserve it in perpetual peace and safety which the Emperour Augustus thought worthy his imitation and is therefore commended by Dion for that he did never attempt any new Conquest esteeming that which he had already got to be sufficient VIII Examples of the change of Government among the Conquered The Lacedemonians yea and the Athenians also in their Golden Age never challenged the Sovereign Power over any City that they took by War only they required that they should mould their Government according to their own Form For the Lacedemonians used an Aristocratical Government wherein a few of the best governed the rest But the Athenians used a Democratical whereby the Government was wholly setled in the People Lib. 4. de Rep. cap. 11. lib. 5. cap. 7. as Thucydides Isocrates and Demosthenes teach us Nay Aristotle himself confirms as much in several places Tacitus records the like done by Artabanus at Seleucia * Ann. 6. Who assigned the Government of the Common People to the Noble-men according to his own use and custom For he judged it the next way to Liberty to leave it in the People as to leave it in a few was the next way to Tyranny But whether these alterations in Government do conduce any thing to the security of the Conquerour is not our purpose in this place to determine IX If the Empire be assumed to leave some part thereof to the Conquered But in case it be not thought safe for the Conquerour to leave the Conquered altogether free yet may the matter be so moderated that some part of the Government may be left to them or their King with a reservation of some other part to the Conquerour Tacitus tells us That it was the manner of the Romans to make use of Kings themselves as Instruments of subjection Antiochus is said to be Romanis inservientium Regum ditissimus The richest of all the Kings that were subject to the Romans The like we read in the Commentaries upon Musonius namely Of some Kings that were subject to the Romans So in Lucan Atque omnis Latio quae servit purpura Ferro And every King whom Rome's vast Power commands Thus did the Scepter continue amongst the Jews in the Sanhedrim after Archelaus's confiscation And Evagoras King of Cyrus as Diodorus testifies told the King of Persia Lib. 15. That he would obey him but as one King obeyed another And when Darius was overcome Alexander was willing to restore him to his Kingdom but upon this Condition Lib. 17. That he might command others but obey him only Such Kings there were also antiently in Italy who though they ruled others yet were themselves subject to other Kings So in Aeschylus we read That among the Persians there were Reges Regis magni subices Petty Kings Leunclav lib. 18. Lib. 1. c. 3. § 17. Lib. 3. c. 8. § 3. that were subject to the Great Kings As there are now also among the Turks Now as concerning the manner how an Empire may be mixt we have already treated but sometimes a part of a Kingdom being taken away the rest is left to the Conquered as is usual after the Conquest to take away some part of the Fields and to leave another part to the ancient Occupants X. Or at least some liberty Yet when the Conquered are altogether deprived of their Empire may there be left unto them power over their private Estates and some smaller things that are publick as their own Laws Customs and Magistrates Thus Philo in his Embassy to Caius saith That Augustus was no less careful to preserve the Laws peculiar to every Nation than to preserve the Laws proper to the Romans So we read also in Pliny That in Bithynia Lib. 10. Ep. 56. 14. Lib. 3. Ep. 113. being a Proconsulary Province the City Apimaea retained this priviledge That they governed their Commonwealth at their own pleasure And in another place he tells us That it was granted them that they might chuse their own Magistrates and their own Senate The City Sinope though
us that our faith was altogether to be kept For better it was not to admit of some excuses though just from a few than to encourage all to make what excuses they would for the breach of their faith But what things are those which may countervail that which is promised Surely in the first place Whatsoever by any other Contract made since the War is owing unto us by him to whom our promise was made or whatsoever damages we have sustained by him in the times of Truces or in case the Persons or Rights of Ambassadors have been by him violated or in brief if he have done any other thing which between Enemies is not justifiable by the Law of Nations where this also is to be understood That the satisfaction be made between the same persons and that the Right of no third person be thereby injured but yet with this allowance That the Goods of Citizens may stand obliged for the Debts of their own City as those of Subjects may for the Debt of their Prince as we have already shewed Whereunto we may add Lib. 2. c. 2. That it is the sign of a generous Soul strictly to observe his faith in Leagues given notwithstanding all provocations to the contrary by injuries received Upon which account it was that that wise Indian Jarchas so highly commended that King who being much injured by his Confederates yet would never break his faith given saying Philost l. 3. c. 6. Tam sancte se jurâsse ut alteri ne post acceptam injuriam nociturus esset That the Oath he had taken was so sacred that he durst not injure him to whom he had given his faith though he were sufficiently provoked Now look what other Questions usually arise concerning our faith given to Enemies may almost all of them be resolved by applying them to those Rules heretofore prescribed concerning the Obligatory Power as of Promises in general so of those special promises made by Oaths Leagues Sponsions Lib. 2. c. 11. seq and of the Right and Obligation of Kings and concerning the interpretation of such promises as are ambiguous But yet notwithstanding for the better use of what hath been already said and for the clearing of any other doubts which may happen to arise it shall not at all be troublesome to me briefly to unfold such of these special Cases as are most notable and as do most frequently occur CHAP. XX. Concerning the publick Faith Treaties Lots set Combats Arbitrements Surrenders Hostages Pledges I. The division of Faith among Enemies in order to that which follows II. In Monarchies it is in the Kings power to make Peace III. What if the King be an Infant Mad a Prisoner or an Exile IV. In other Governments this power is in the major part V. How an Empire or a part of it or the goods of a Kingdom may be firmly alienated to obtain Peace VI. How far by a Peace made with a King his People and Successors may stand bound VII That what is the Subjects may in Peace be granted away for the publick good but with condition of repairing damages VIII What may be said of things already lost by War IX No distinction here between things got by the Civil Law and things got by the Law of Nations X. With Foreigners what a King doth is held to be for the publick good XI A general rule whereby to interpret Articles of Peace XII In doubtful cases it is credible that it is agreed that things should remain in the state they are at present how this is to be understood XIII What if it be agreed that all things shall be restored to the condition they were in before the War began XIV Then they who being before free and had voluntariy enslaved themselves were not to be made free XV. That damages occasioned in War if left dubious are presumed to be forgiven XVI But not those which before the War were due to private men XVII Punishments also before the War publickly due if left doubtful are believed to be remitted XVIII What is to be said concerning the Right that private men have to require punishment XIX That Right which before the War though publickly claimed was controverted is easily believed to be forgiven XX. Things taken after Peace made to be restored XXI Of agreements whereby things taken in War are to be restored some certain rules XXII Together with the things the fruits and profits are to be restored XXIII Concerning the names of Countries XXIV Concerning the relation that is had to some precedent agreements XXV Of delay XXVI Where the words are doubtful the interpretation must be made against him that gives Laws XXVII Distinction must be made between the giving of a new cause of War and the breaking of Peace XXVIII How a Peace may be broke by doing contrary to that which is presumed to be in every Peace XXIX What if we be invaded by Associates XXX What if by Subjects and how their fact may be judged as approved XXXI What if Subjects engage under another Prince XXXII What if Subjects be invaded explained by distinction XXXIII What if Associates who are likewise distinguished XXXIV How a Peace may be broken by doing contrary to that which was said in the Peace XXXV Whether any distinction is to be made between the Articles of Peace XXXVI What if to the breach of the Articles there be some punishments added XXXVII What if we are hindred by an unavoidable necessity XXXVIII The Peace shall stand firm if he that is injured be willing thereunto XXXIX How a Peace may be broken by doing that which is contrary to the special nature of every Peace XL. What under the name of friendship may be comprehended XLI Whether it be enough to break friendship to receive Subjects and Exiles XLII How War may be ended by lots XLIII How by a set combate and whether lawful XLIV Whether the fact of the King do in this case oblige the People XLV Who is to be judged the Conquerour XLVI How War may be ended by Arbitrement and how it must be understood if it admits of no appeal XLVII Arbitrators in cases doubtful must be so understood as bound to do Right XLVIII That Arbitrators are not to determine of possessions XLIX How far forth the force of a pure dedition extends L. What a Conquerour ought to do as to such as surrender LI. Of a surrender upon conditions LII Who may and ought to be given in Hostage LIII What Right is given against Hostages LIV. Whether an Hostage may awfully escape by flight LV. Whether an Hostage may be lawfully detained upon any other account LVI Vpon the death of him for whom an Hostage is given the Hostage is to go free LVII The King dying who sent the Hostage whether the Hostage may lawfully be detained LVIII Hostages may sometimes be principally obliged and that one of them is not bound for the fact of another LIX What obligation lies upon
Polybius notes rather carried himself like a Conquerour Lib. 16. than thought himself one Lib. 29.40 And as to those other things which as well Livy in several places as the Authours before recited do set down as signs of Victory as the taking of the spoil the granting leave to bury the dead and the offering Battel a second time These though they carry some shew of Victory yet of themselves prove nothing but as they are backt with other more demonstrative Aguments of the Enemies Flight Plutarch concerning Agesilaus writes thus Having given the Enemy leave to bury their dead and thereby gained to himself the honour of being Conquerour he went to Delphos So the same Plutarch in the life of Nicias proves both by Law and Custom That he who craves leave to bury his dead seems thereby to disclaim the Victory Neither had they that craved this leave any Right at all to erect Trophees But this as I have already said is no infallible sign of Victory and yet where the Victory is otherwise doubtful he that first departs the Field may more probably be thought to fly than he that keeps it But where there are no certain signs of Victory there every thing is to remain as before the Fight and so both Parties are either to prosecute the War or to draw to a new Agreement for Peace XLVI War sometimes determined by Arbitration Concerning Arbiters Proculus informs us That they are of two sorts whereof the one he makes so Authoritative that whether his award be just or unjust it must be obeyed which saith he is to he observed whensoever both Parties do engage themselves to stand to the determination of a third person The other he makes to be less binding as when both Parties are content to refer their Case to be moderated by some indifferent person An example whereof we have in that Answer of Celsus If the Servant being made free shall swear to perform such services as his Patron shall think fit to impose upon him the imposition of the Patron shall not be binding unless what he imposeth be equal But this interpretation of an Oath though haply it might be warranted by the Roman Laws yet can it not agree with the plain and genuine sense of the words simply taken But yet this is very true That the word Arbiter may be taken in both senses either for a Moderator only such as the Athenians were between the Rhodians and Demetrius or for an absolute Judge whose Sentence must be obeyed And in this sense we here take it as also we did elsewhere treating of the means how to prevent a War Lib. 2. c. 22. And yet even against such Arbiters to whose award both Parties have mutually promised to stand it may be provided by the Civil Law as in some places it is That Appeals shall be granted and Bills of complaint admitted But this cannot be between Kings or between Nations for here can be no superiour Power that can either hinder or dissolve the obliging power of the promise And therefore whether the Sentence be right or wrong we must be concluded by it So that what Pliny sometimes said may very fitly be applied hither Praef. Nat. Hist Summum quisque Causae suae Judicem facit quemcunque elegit Every man makes him to whom he refers himself the supreme Judge of his own Cause This also we must add That it is one thing to discourse concerning the Duty of an Arbiter what he ought to do and another thing to treat of their obligation that are content to refer their Cause to such an Arbitrement For as though there were a Law among the Cities of Italy That one Kinsman should not go to Law with another but that all differences should be determined by Arbiters chosen on purpose yet notwithstanding this Law there were some Cases wherein they might refuse such a reference So also there may be some Cases and some Reasons why Princes may refuse to put their differences to Arbitrement Amongst which this is not the least When no assurance can be given that the persons referring will stand to the award Quis alterutrum coget nostrum qui conventis stare noluerit saith Augustus to Mark Anthony Who shall compel him of us two that refuseth to be determined by the Sentence of our common Judge or Arbiter Private men may be compelled to stand to an Agreement by the publick Magistrate but who shall compel Princes that have no Superior Other Reasons also there may be Albericus Gentilis See pag. 335. as that of Philip King of Spain who refused the Pope to be Arbitrator between himself and other Competitors for the Kingdom of Portugal because the Pope claimed the decision of all such Controversies as his Right wherefore that prudent King was unwilling to add his own example to some ancient ones whereby the Pope might prove himself to be the sole Arbiter of Kingdoms XLVII Arbiters in Cases dubious tied up to Law That which is to be considered in an Arbiter is Whether he be chosen as a Judge or as a Moderator which was the proper Office of an Arbiter as Seneca thought where he tells us * Lib. 2. de benef c. 7. That a good Cause is better referred to a Judge than to an Arbiter Melior videtur conditio bonae Causae si ad Judicem quam si ad Arbitrum mittitur Because a Judg hath a constant Rule to walk by which he must not transgress whereas an Arbiter being freed from the Shackles of the Law hath liberty to judge according to equity and good conscience and therefore can either add or detract from the rigour of the Law and give Sentence not always as Justice shall exact but sometimes as pity and humanity shall direct Rhet. 1. c. 19. Aristotle reckons it as a Duty of an honest and a frugal man to refer his Cause to an indifferent Arbiter rather than to a severe Judge Arbiter id quod aequum est respicit Judex Legem For an Arbiter looks at that which is righteous but a Judge at that only which is legal And therefore is an Arbiter made choice of to the end he may rebate the edge of the Law or otherwise supply that wherein the Law is defective Equity what For equity in this place doth not signifie as elsewhere that part of Justice that expounds the general words of the Law nearest to the mind of the Law-maker for even this also is the Office of a Judge but every thing that is better done than not done although it be not according to the strict Rules of Justice properly so called But such Arbiters as they are very frequent among private men that are Fellow-Citizens or Subjects to the same State and are highly commended especially to us Christians by St Paul 1 Cor. 6. so in such Cases as are ambiguous we are not to allow them so much power as to determine of them For in these we are to
236. under Alexander deny to carry Materials to the Temple of Belus 428. in what Cases not to associate with wicked Kings page 185 Ignorance excuses when page 237 Ignorants to be spared in a Just War page 500 Ignorantly and through Ignorance distinguished ibid. Islands and Increments by inundation whose 136. floating 137. how distinguished from Increments ibid. Images abhorred by the Persian Magi 466. to deface to him that believes to include a Deity impiety ibid. Imperare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 50 Impiety and open profaneness towards any that is acknowledged as God punishable page 392 Imprisonment unjust to what it obligeth page 201 Importation of some goods prohibited page 86 Of Inequality The Law of Nation takes no cognizance if consented unto page 165 Incestuous Marriages forbidden by the Law of Nature 107. two reasons given against such page 109 An Increment what is thereby meant 138. whether stopt by an Highway 139. it is his whos 's the River is oâ— his whos 's the Grounds are that bound it 138. it is his to whom the Land is granted if the Land be arcifinious ibid. if in doubts is the peoples ibid. whether it may belong to the Princes Vassal ibid. Indians many Wives 106. no Tribunals but for murder and injuries done page 211 Induciae whence page 558 Infants capable of Dominion 89. but not to dispose thereof without a Guardian ibid. so is he to inherit but not to dispose of it page 103 Infeudations 119. made by Kings without the peoples consent void with consent how gained ibid. Ingratitude of the Romans punished by M. Levinus with disfranchizement page 39 To Inhabit any Country free for Exiles page 85 Injuries faults mischances distinguished 500 on the one side makes War just on the other 70. what oblige to restitution what not page 531 Injure others we ought not to benefit our selves page 82 Injuries done us by our Country Prince Parents to be patiently born page 58 Injuries intended only sometimes punished page 383 Innocents to be defended page 425 426 The Innocent not to be destroyed with the Nocent page 504 The Innocent falshood of Joseph to his Brethren page 443 Instruments of the Plough not to be taken in pawn page 514 To Insult over the Vanquished ignoble page 506 507 Intent sometimes equally punished with the fact 381. though ill obligeth not to restitution page 383 Invaders Command how far obliging 62. in what Case he may be killed by a private man page 65 For the Interpretation of Promises and Contracts some Rules page 193 What Interpretations given to contracts between Enemies 558. if odious in their full propriety if ambiguous in the largest sense page 193 Interpretation of Leagues 190 sometimes gathered from the Context 191 192. if in doubt ought to favour the weakest page 548 Intestates Estate to whom naturally it descends page 122 Invasion made by Confederates or their Subjects whether it break the Peace 548. by Subjects when attributed to the Prince ibid. By Inundation the Owner may lose his Right page 137 Inundations and Increments thereby gained page 136 137 Josephus in expounding the Hebrew Law flatters the Romans page 466 To Judge of the Cause of a War between Princes dangerous page 457 The Judges Office in criminal Causes dangerous page 373 A Judge should be tenderly affected as a Father 416 417. may be punished his Sentence being unjust but not the Executioner 429. said to be just though the Sentence be unjust page 55 In Judgment the matter not the Persons to be considered page 3 4 To Judge of a mans meaning by his speech how due page 441 Judgment of zeal what page 445 Judgment contemplative and practical page 429 Judging of the Supreme Power Caâ—tions page 41 The Judgment how steered in doubtful Cases page 411 Against Judgment though erroneous nothing to be done ibid. Judgments Capital why by Christ permitted 372 373. Christians may execute them but not affectedly ibid. Jus and Justice how distinguish'd page 494 Just in War what page 2 Just taken strictly what page 414 Justice derived from Jove Pref. vi Justice and Valour usually attended by Victory xii Justice Expletive and Attributive page 4 Just Cause procures Friends xii Just Cause adds courage to Souldiers ibid. Justice Commutative or Expletive page 3 Justice how described by Porphyry v. preferred to fortitude x. it begets courage 430. it so gives to every one his own that it detracts not from the just Right of another 198. it should extend it self to all Mankind x Where Justice is not required the longest Sword takes all page 435 K. KEturah's Son by Abraham received Gifts or Portions but no Inheritances page 125 He that Kills an Enemy in the War is guiltless page 357 To Kill a man for slight injuries is againast Charity 73. in defence of our Goods naturally not unlawful page 74 To Kill a private man is murder but thousands in an unjust War Valour and Vertue page 70 To Kill a Nocturnal Thief whether tolerated only by the Civil Law or approved 75 76. an incorrigible Malefactor not against the Law of Nature page 368 To Kill an Enemy after Battel against Charity page 506 To Kill an Enemy privately in his own Quarters whether lawful page 462 To be Killed none for his valour in defence of his own cause if good page 568 To Kill all that have offended brutish page 501 Who may be justly Killed in a just War according to Justice internal page 498 Kings Grants when revocable and when not 180. their Contracts do not always bind their Successors page 178 179 Kings how they serve God as Kings page 17 18 Kings whether bound by prescription see Prescription Kings that make Laws not subject to Laws 377. not all constituted by the People 40. not bound by their own Laws directly 101. in name some not in power 39. whether he may renounce his Kingdom so as his Son shall not inherit page 131 Kings raised by providence fit for the times and People 41. they have no superiour but God 40. their vices must be born with patience ibid. to revile them is wicked but to kill them though wicked horrid page 39 A Kings person to be spared in cases of absolute necessity page 66 Kings regard honour more than power yet doth not this abate of their Right 54. their private Acts subject to the Laws page 177 Against Kings the Law that makes void any private mans Acts by way of Punishment is void ibid. Kings Promises Contracts and Oaths page 176 A Kings word as firm as an Oath page 175 A King may null his own Oath as private men antecedenter not consequenter 177. whether he may revoke his own acts which he doth as a King page 176 Kings defended by severe Laws page 61 By the Contract of a King how the Heir may be bound page 178 How a King may be bound to his Subjects naturally and how civilly page 177 Kings bound by their own Laws as a member not as the body
sorts of Murtherers page 196 197 Laws guide to wisdom Pref. ix Laws may so far proceed against a King as to evidence the Right of the Creditor but not to compel him page 177 178 Contrary to Law things done not nulled unâ—ess so exprest by the Law it self page 147 Laws bind not in cases of extreme necessity page 567 Laws made to avoid greater mischiefs only must not be so understood as to make that sinful which is otherwise lawful page 483 Laws without a coercive power externally weak Pref. ix Laws and Arms opposed Pref. ii The six Laws given to Adam what page 8 There is the same Law where is the same reason or equity page 196 Humane Laws to be interpreted with some allowance for humane frailty page 59 The Law in prohibiting doubles the offence 380. of Moses erroneously quoted for that of Nature Pref. xviii Without Laws no community can consist Pref. ix Laws humane depend upon the will of the maker for their institution and continuation page 21 22 Laws may bind as to humane judgment that bind not the Conscience 483. nor bind longer than the coercive power lasts ibid. severe in the defence of Kings page 61 Laws commanding stronger than those that permit and those that forbid stronger than those that command page 199 The reason of a Law particularly failing shall not exempt that case from the Law but it may be dispensed with page 35 Lawful taken either for that which is just and honest or for that which is not punishable page 456 The Law of Nations how beneficial Pref. ix it is like the Soul in the Body page 451 Humane Laws depend upon the will of the Lawmaker both for their institution and continuation page 377 A League what 181. when said to be renewed 187. void if by either broken ibid. Of Leagues the Ancienter to be prefer'd ibid. that made with a Free people real ibid. that with a King not always personal ibid. A League holds with a People or a lawful King though exil'd his Kingdom but not with an Vsurper page 195 League equal or unequal page 183 Leagues how they differ from Sponsions ibid. Leagues unequal 48 183 184. give no jurisdiction properly page 49 In unequal Leagues Kings or People may be equal in freedom though not in dignity ibid. In Leagues who are superiour page 49 50 Leagues some require exact natural Right only and why 182. its breach is a matter odious page 193 The Prince of the Leagues may be said in some things to command page 49 50 In Leaugues unequal the danger whence page 51 Leagues unequal contracted sometimes where no War is 184. whether to be made with men of different Religion ibid. this proved by experience 185 186. some cautions page 186 Leagues forbidden to be made with some Nations and why page 184 Of Leagues some favourable some odious some personal some real page 195 Leagues of Peace and society these either for Commerce or War page 182 183 Whether they that are unequally Leagued have the Right of Embassages page 206 Leagues divided page 182 A League for a set time not by silence renewed page 187 No League binds to an unjust War page 186 No breach of League to defend the injured Party if in other things the Peace be kept page 194 Leagues never made but between Soveraign Princes page 181 Leagues of Joshua with the Gibeonites 169 he might not make a League with the Canaanites and why page 184 In Leagues words of Art interpreted according to Art 191. the stronger gives the greater power the weaker the greater honour 49 50. this Article not to make War without consent is to be understood of an offensive War only page 194 A League made with a Free People is real and binds though they admit of Kings unless made with other Free Cities to defend their liberty page 195 The Lenity of the Ancient Fathers towards them that erred in things Divine page 391 Letter of Marque page 448 Liberty personal recovered by Postliminy 489. or Peace which to be prefer'd page 419 The Liberty of a People what it signifies 42 43 c. of making War not rashly to be believed to be renounced page 193 The Liberty of Subjects obliged by the fact of their Superiours page 447 Liberty natural is to live where we list page 115 Liberty the usual Cloak of Ambition page 65 Liberty lost to recover no just cause of War page 407 Liberty some left the Conquered may secure the Conquerour page 527 Life prefer'd before Liberty page 419 The Lesser number to yield to the greater not natural page 139 Long possession see Possession Lots sometimes end a War page 551 Love of Parents toward their Children more natural than that of Children towards Parents page 123 A Lye strictly taken what 440. forbidden 439. by some good Authors in some cases approved 440. a wholesome lye the jocular and charitable not much blamed page 442 443 The form of a Lye what 441. whether naturally unlawful ibid. To Lye and to tell a lye differenced by Gellius page 440 Lyes our refuge in danger Rahabs lye page 443 No Lye if by an untruth spoken by me a By-stander be deceived page 442 Of Lyes the Schoolmen admit not but they do of Equivocations page 443 444 A Lye to preserve life whether lawful page 443 To Lye to an Enemy lawful 439 443. to be understood of words assertory not promissory 443 444. yet not if bound by Oath ibid From Lying to abstain even to an Enemy magnanimous page 444 Lying to be excluded in all Contracts in a Market page 441 To Lye in time and place fitting the part of Stoical wisdom page 440 Lying ill becomes a Prince 444. fear and poverty make Lyars ibid. For Lying and Perjury the punishment the same page 175 It is no Lye if in an Amphibology our words agree with either sence though misunderstood page 440 M. MAccabees resistance what page 60 Macedonians put all that are of kin to Traitors to death page 403 Magistrates should punish Offenders as Parents do Children page 417 Magistrates killing men are innocent but private men doing the same are Murtherers 374. whether they may remit punishments 375. Inferiours must not resist the Supreme 58. why chosen 376. they must judge according to Law but Princes the Laws themselves page 377 No Magistrate chosen without an Appeal to the People of Rome page 65 Magistrates Inferiour may reduce Rebels in a Case of imminent danger page 35 Magistrates Christians in St. Paul's time page 18 Magistrates amongst the Jews did not resist their Kings though wicked 57. in what Cases obliged to reparation of damages 203. how far they may oblige Citizens page 564 Magistrates not taking caution from Privateers whether obliged for the wrongs they do to their friends page 203 The Magnanimity of the Romans in respect of the Greeks page 445 Mahometans hold a necessity of restitution page 495 Majesty taken for the Dignity of the Person governing 49. what that
the major part it shall bind the minor ibid. whether it may be made with a Minor Captived Exiled King ibid. being made with a King whether the People and his Successors are bound 545. broken on one side may be kept by the other 550. whether to be preferred before liberty 65. firmly made is the end of War 571. caused by fear unjustly occasioned not to be broken 533. made free Cities surrendering to be set at liberty page 546 By Peace the Primitive Christians understood a vacancy from persecution page 29 Peculium what 522. how far the Lords and how far the Slaves ibid. Perfidiousness with Rebels Pirates Thieves connived at by the Law of Nations 462 what perfidious men to imploy is against the Law of Nations ibid. The People may alienate the whole Government from themselves page 37 The People of Rome chuse always their own Emperour 144. are the same they anciently were page 143 The People changing their Government stand obliged to those Debts contracted before such change page 143 A free People held the same place the King held before ibid. The People are the same under any Government ibid. yea though they change their seat 142. when they cease to be the same 141 142. whether punishable for their King 403. their consent how gained 119 120. how far obliged by the act of their King in making Peace 545. why punished for the fact of their King 41. their Patrimony or any part how far and in what cases engaged by their King 120. not alienable without the consent of the three States ibid. No Part of the People can be alienatd from the whole without consent but in extreme necessity page 119 Perjury always attended with curses 166. for it Glaucus how punished 166 167. and lying have the same punishment 175. it reaches the whole Posterity 166. its very intention punished 166 167. to Pirates and Robbers not punished and why page 538 Permission twofold perfect and imperfect 10. what 4. of crimes by him who ought and can hinder it punishable page 394 395. Permitted many things are which are not agreeable to reason or equity page 494 495 Persians have many Wives 106. their opinion concerning God 466. the custom in judging of Criminals 379. their severity in punishing the Children and Kindred for their traiterous Parents 403. the Right over their Children page 104 Perseus his Controversie with the Romans page 195 Peter forbid to use his Sword why page 133 Physicians rewarded though they cure not and why page 478 Picture of Jalysus by Protagenes at Rhodes page 218 Pignorations forbidden by the Civil Law page 446 447 Pillage what page 480 Pipin the Father of Charles the great attended with one only Souldier killed his Enemy in his Tent page 463 Pirates being subdued no triumph granted 451. against them every Prince makes War 384. they are not capable of making a solemn War 378. what they take alters not the property 492. though they use some equality amongst themselves yet they make not a civil society 450 451. which they may do if leaving their Piracy they settle under wholsome Laws page 451 What Right is given to Pirates and Robbers as such cannot by way of punishment be taken away 202 203 they cannot claim the right of Embassies page 205 206 207 The Pirate Diomedes his answer to Alexander page 414 By a Pirate or Robber what is taken may be recovered page 203 Pirates or Thieves how different for a Nation doing some unjust things 450. some Nations live by Piracy 451. War with Pirates and Subjects no just War page 454 Pyrrhus in danger to be poysoned by his Physician was forewarned by the Romans page 461 Places unoccupyed are the first Occupants 81. and persons freely surrendered not to be restored unless so agreed page 545 546 To Plant in another soyl no ground of War page 406 Plants whether theirs whose the spoil is page 139 Pledges he that takes to what bound 160. an agreement about them how understood 556. how engaged the Right of redemption how lost ibid. To Penitents whether all Punishments be remitted page 372 Poison not allowed against a Prince though an Enemy page 462 To Poyson Springs Weapons against the Law of Nations but not to corrupt Waters otherwise page 461 462 Polygamy not forbidden the Patriarchs nor under the Law 16 17 105. allowed by most Nations page 106 Pompey enters the Temple at Jerusalem by the Right of a Conquerour page 466 467 The Pope not universal Bishop 408. nor hath he any jurisdiction in temporal things much less over Kingdoms ibid. delivers the ornaments of the Empire to the Emperour by what Right 145. and Crowns him as a King of the Romans page 144 145 Possession may be acquired by another 472 of creatures wild got by instruments and not by wounding but by taking them page 135 Possession long confirms a private Right but is of no force against different Nations though sometimes pleaded 97. immemorial and uninterrupted transfers Dominion by the Law of Nations page 100 The Right of Possessing thing moveable may by Law be anticipated page 89 Possession unjustly gained and a sentence unjustly past have some effects of a just Right 415. after three hundred Years restored by the Emperour Honorius to the Ancient Occupants page 492 Things long out of Possession to require vain page 98 Possession long much favoured in Empires and why page 99 100 The Present Possessors Right is best if in doubt page 82 414 Of things twice sold his title is best that first got Possession page 161 The Posterity of Slaves are Slaves page 481 Postliminy what its original 487. by it some things return and some received 488. if they escape to Friends or Associates ibid. in force as well in Peace as War ibid. in Peace it belongs to such as are unfortunately found among Enemies ibid. by it Freemen are said to return but Horses Mules Ships to be received 489. by it a Freeman returns free when ibid. so may a People or Nation 490. but not they that surrender themselves 489. by it how Servants are received and how Fugitives page 491 Of Postliminy moveable Goods what not capable 492. Lands whether capable ibid. Postliminy in force not amongst Enemies only but Strangers ibid. how this may now take place ibid. by it who may return in Peace and who not page 488 Power what 3. the Civil wherein it consists 36. the supreme what 37. the Subject in whom it is ibid not always in the People ibid. Supreme some but temporary 39 40. Civil called by Peter an humane and by Paul a Divine Ordinance in what sense page 60 The Power of Fathers over their Sons with the Romans page 104 Power supreme may be obliged by the facts of their inferiour Officers and how 563 564 565. must have some Prerogatives page 101 All Power is given to the Lord over his Slave and why page 482. Power over his own life no man hath page 380 The Power that common
Representative Succession admitted by the Hebrews 124. when in doubt to be allowed of ibid. but lately admitted among the Germans ibid. Reprizals what 448. the Sea-Laws concerning them 435 436. their Right reacheth not to the Lives of such as are innocent 448. they may be taken when no War is denounced page 447 When the Right of Reprizals passeth to them that take them page 449 Concerning Reprizal their difference of the Civil Law and the Law of Nations and what persons and Goods are exempted page 450 Things taken without the Territories of either Party whether lawful Prize page 480 Res rapere Res reddere what page 456 Request of a Superiour in a League equivalent to a Command page 51 To Require things what it signifies page 453 Required what is before War be denounced page 452 Resistance of the supreme Power whether in extreme necessity lawful 54 55. disallowed by the Primitive Christians even to persecuting Emperours 57 58. unlawful by the Gospel 55. the opinion of Barklay concerning it 63. in what Cases lawful 59 60 justifiable by inevitable necessity by the example of David and the Maccabees 60. naturally lawful civilly not 53. and why page 54 Obstinate Resistance justifies not the killing of men internally page 508 Resistance in some Cases may be reserved in the translation of Kingdoms page 60 To Restitution who are obliged either by doing or not doing page 201 Restitution ariseth from Dominion page 146 No Restitution of things which are anothers if in Case they perish if in Case we use them thinking them our own 148. yet are we bound restore the profits if any be ibid. Restitution must be made of the things and profits 147. necessary to repentance 495. it must be made to the right Owner 147. not due in some Cases page 149 Restitution intended justifies not Rapine unless in a Case of absolute necessity page 149 Things bought or deposited may be restored to their Right Owner page 149 Restitution of things taken in an unjust War 528. what may be deducted 529. it must be to the full page 496 No Restitution of places or persons freely surrendred unless so exprest page 546 Of Restoring things after War some Cautions page 547 No Restitution in a just War sometimes by reason of the evil intention in its prosecution page 331 Restitution where the Câ—â—se of War is doubtful how to be moderated page 530 Restitution of things taken from the Enemy who held them unjustly page 451 452 To Restitution who are wholly and who in part bound page 202 Retaliation not to extend beyond the persons offending 461 539. agreeable to the Law of Nations 367. tolerated under the Law to avoid greater mischief 371. not to be exacted by Christians ibid. in what sense required by the Hebrews its use both amongst Hebrews and Romans ibid. Retreat sounding to kill an Enemy is homicide page 534 Return to the Enemy who may be said page 531 Revenge by retaliation naturally lawful page 366 367 Revenge whether agreeable to the Law of Nature 364. whether by the Law of Nature and Nations lawful 366. whether permitted to Christians how restrained 369 370 it differs not from injuries but in order only 364. taken with delight unnatural 370. in that it mitigates grief whence it proceeds page 364 To Revenge his own Quarrel every man hath a Right naturally 66. why now committed to Magistrates 370. not to go beyond the persons that injured us page 400 Reward for labour how encreased or diminished 162. to whom due if two at once fulfil the Condition page 196 The Reward promised to Thamar due by the Law of Nature not by the Civil Law page 154 A Reward demanded by a Souldier for killing his own Brother in the head of his Enemies Troops page 458 Right in War what 2. taken for a moral qualification of a person divided ibid. for aptitude or fitness 3. taken for a Rule or Law 4 divided into natural and voluntary ibid. Right reason a Rule infallible ibid. Right by the Law of Nations distinguisht from that which hath some effects of Right Pref. xv Right of Government distinguisht from the ill management of Civil Affairs page 41 Right distinguisht from Just 54. Right extreme sometimes extreme wrong ibid. What Right of Kings it is that Samuel describes page 54 What Right a Lord hath over his Slaves 115. whether it extend to death 116. over the Children of his Slave born in his house ibid. A Right a man may have to that taken from another page 122 Right acquired by Law 121. By the Civil Law none can right himself page 122 Right of a Father over his Children distinguisht into Natural and Civil 104. of an Husband over his Wife 104 105. of Societies over their Members page 114 By the Right of Nations many things claimed that are not thereby due page 134 The Right of Strangers not subject to the supereminent dominion of a King 178. nor of a Subject without Cause ibid. Right better lost than contended for sometimes 416 417. not to be extended to the full 434. when said to be denied 448. considered directly and indirectly page 434 A Right none can give that hath none 528. incorporeal gained by War page 486 The Right of War makes no distinction of Age or Sex page 459 The Right of the Sword in Histories sacred and prophane what page 17 Right distinguisht from its exercise page 52 The Right supereminent of Kings and States whether it can free them from the breach of Faith given to their Subjects page 539 Right external what 395. how differenced from internal page 453 The Right of Kings and States when by Peace said to be remitted page 547 The Right of Nations concerning inequality in Contracts page 164 Righteousness Judgment and Mercy how distinguish'd page 177 Rivers how held in propriety 89. the whole sometimes belongs to one Territory and none to another 95. as flowing streams common 82. but as the profit his that ownes the Banks ibid. changing their course whether they change the Bounds of the Territory page 94 A River in what sense said to be always the same page 141 c. Rome once the common City 525. regardless of Captives or Prisoners and why page 488 The Romans severe in their Victories 503. they anciently abstained from fraud in their Wars page 444 c. The Roman Empire in whom now 143. founded in the People of Rome page 144 The Romans claimed that to themselves which their Enemies took from others page 471 All the Roman Tribes disfranchized for ingratitude page 39 Roman Dictators absolute though temporary page 43 The Romans chuse their Emperour when residing at Constantinople page 144 The Roman Empire not universal though sometimes so called page 407 The Romans Right over their Children 104. their custom concerning Lands taken in War 472. concerning the spoil 474 475. Captives redeemed 491. those that return by Postliminy ibid. concerning things taken 518 519 concerning their Captive Kings page 503 Rules guiding
us in Political Consultations 419 Of Rule or Dominion the desire with the consent of the People to be ruled no cause of War page 407 S. SAbacon converted capital punishments into servile works page 372 Sabbath the symbol of the Creation 387. its Law more indispensable than any other ibid. its breach why punished by Death ibid. driven away by the danger of life 59. made for the refreshment of Servants page 521 Sacred things in what sense publick 465. whether subject to the licence of War ibid. 466. rendered by their City cease to be sacred ibid. made prophane by the consent of the People ibid. in war to be spared page 515 Sacriledge in War not punishable page 465 It is Sacriledge to violate Temples and Altars page 515 Sacreligious persons to be cast out unburyed page 219 Safety of the Conquerour how provided for page 525 526 Safety of the whole consists in the preservation of its parts and so on the contrary page 57 Safe-conduct to such a place how understood 568. how far it extends to persons Goods or Attendants 544. what it implies page 560 The Saguntines case discust page 193 Sampsons Death page 219 Sanedrin called Gods page 47 Satisfaction to be demanded before War be denounced 367. to be tendred by him that hath offended 77. if refused justifies a War ibid. Saul whether he dyed impenitent page 219 Scarcity of money and provision shortens a War page 511 Schoolmen their singular modesty Pref. xix their opinion concerning Lying and Equivocation 444. the generality follow St. Augustine ibid. Scriptures what they barely recite and reprove not we ought not to condemn 449. to understand two main helps page 25 Sea taken either universally or in its parts whether occupyable 80. it cannot be possest because not bounded ibid. may be held in propriety and how 89. near the shore occupyable by the Law of Nature 90. filled up and let in to the Land by the Romans 90 91. serves for three uses Water Fishing and Navigation page 80 The Seas Empire over it parts how lost page 92 93 Sects all hold somewhat that 's true none infallible Pref. xvi Self-murder not valour but madness page 218 219 The Sentence doth not properly give a Right 448 449. sometimes divided sometimes conjoyned page 113 Sepultus and Humatus the difference page 214 Sepulchres subject to the Conquerour by the Law of Nature page 467 Sergius Paulus a Magistrate after his conversion page 20 Servus quasi servatus page 482 Servants may do what is unjust and yet be just 429. not punishable for what they do being commanded ibid. not Judges of their Masters commands but Executioners ibid. not examined by the Romans without torture 28. prohibited by the Canon to forsake their Masters how understood 116 117 483. whether they may resist their Master ibid. or take reward for their labour ibid. if good to be used as Brethren page 520 Servitude by way of punishment 117. its degrees ibid. not repugnant to Nature 115 116. perfect and imperfect page 115 The Severity of the Roman Laws towards the Conquered page 503 See Slaves Severity then seasonable when delinquents are few page 37 Severity extreme too near a Neighbour to Cruelty 456. of Lords justifies the Servants flight page 116 Sex preferred in Succession to Kingdoms before Age page 128 Signs testifying the consent of the will page 98 Significations though improper sometimes admitted page 193 Ships when said to be taken 470. of War with the Tackle and Ordnance taken the Kings 480. if they hurt any whether the Master stands obliged 204. where are many Innocents whether to be battered with Ordnance page 434 Shores how common and how held in propriety 90. forsaken by the River whose 138. are the Occupants Sheds for shelter may be built thereon page 85. Silence when taken for consent 98 99. if not free works nothing ibid. Simulation in War laudable to deceive an Enemy page 137 138 139 Simplicity of our first Parents wherein page 79 Single Combats from whence 368. in what cases lawful page 76 Sins re-acted aggravates the punishment 379 the most customary the more severe 382. differ with mens age and complexion 380. of humane infirmity not punishable by humane Laws 374. some unavoidable to some complexions 375. visited upon Parents and their Children what 402. against the second Table their degrees page 379 To Sin he that urgeth another sins himself page 445 446 Sisters two to marry Anciently lawful page 111 A Slave what 115 116. not to resist his Lord 483. too severely used may fly 116 117. taken in an unjust War and making an escape whether he may carry any thing with him 483. what ere is done unto him is unpunishable ibid. hath nothing of his own page 483 484 Of Slaves a multitude cannot constitute a City 486. some permitted to make their Will 523. in cases of Famine or Cruelty they may appeal to the Magistrate ibid. A Slave may merit from his Lord and raise himself a stock 522. not to be killed nor too rigorously punished nor oppressed with over hard labour 520 521 522. after very hard service rewarded with freedom and not to go away empty handed 523. to be used as an hireling 521. the Hebrews and Romans very merciful to them page 520 Where Slavery is not in use exchange of Prisoners and ransome succeeds page 523 Society the foundation of Law Pref. iv v. and reason mans best weapons ibid. A Society and a City how they differ page 50 Civil Society an human institution page 59 Society not to be kept by the Hebrews with whom page 184 Societies of ensurance against dangers page 164 Societies where work is set against Money ibid. In Societies the major part obligeth the whole 113. what Right they have over their members page 114 Societies with prophane what and how far dangerous and how they may be avoided page 186 Where divers Societies have unequal shares how the votes are to be reckoned page 114 Societies hold not where any one part have no hopes of gain page 163 164 Societies Naval page 164 Social War its division page 183 See Associates Sojourners in times of Peace may in War be made Captives page 472 To Solicite Subjects to betray their own Prince unlawful page 445 Soil lying waste may be given to Strangers page 85 Sold twice whose they are page 161 Solemn War cannot be but between Soveraign Princes 252. it hath its peculiar Rights page 456 480 A Son when he may accuse his own Father of Treason page 209 The Son born before the Father was King preferred before him that was born after page 131 Sons Adopted whether capable of Succession page 127 128 Sovereignty not lost by a promise of any thing that is not of natural or Divine Right 45. nor by misgovernment lost page 73 Souldiers to chuse their General dangerous 143 144. straggling from the Army and Plundering may be killed 374. of Fortune fight for Plunder and Pay 426. lives most miserable
ibid. common worse than Hangmen ibid. most backward to fight most forward to plunder 476. bound by Oath not to embezel the spoil 478. how they march inoffensively in a Country at peace 531. their Swords sealed in their Scabbards ibid. Souldiers straggling and plundering to be assaulted as Thieves page 374 Specification page 88 139 Speech proper to man Pref. iv Spies to send allowed by the Law of Nations 463. yea and to kill them being discovered ibid. Spoil taken from an Enemy whose 471. disposed of by the General 474. sold by the Questor and the Money brought into the Treasury without diminution 474 475. sometimes divided amongst the Souldiers 475. sometimes parted by Plunder 476. whereof the General might take what he pleased 475. sometimes to them that had contributed extraordinarily to the maintenance of the War 477. sometimes between the Souldiers and the State 478 479. sometimes to the maimed and to Widows and Orphans 479. sometimes imparted to our Associates in War 478. and to Reformadoes 479. may by an antecedent Law be decreed to publick uses 478. sometimes embezeled and the Commonwealth robbed ibid. taken by publick Acts the Commonwealths but by private theirs that take them ibid. of a Town if stormed the Souldiers if surrendred the Commanders page 479 Sponsions what 187. how far a General bound if the King refuse 188. at Caudis and Numantia obliged the Army not the People of Rome ibid. made by Generals Leagues by Kings page 179 Sponsors in War how far bound 180. their Estates may be sold their Persons enslaved but their Prince not obliged page 188 So Steal away the heart what it means page 441 Stipulation is the sign of a deliberate mind page 152 The Stock of a Slave may be taken from him in what cases 522. how far his Lords and how far his page 521 The Stoicks dispute much about words 376 377. they account it wisdom to know when and where to lye page 440 To Strangers to deny marriage unlawful 86. their Goods not subject to the supereminent power of Kings 178. they must observe the Laws and Customs of those they live with 81. to rob them anciently an honourable Trade 182. how they should judge of things taken in War 480. how a Right may arise by the Civil Law 141 their Goods may be detained for our or our Subjects Debts page 448 Subjection mutual between King and People refuted 41. publick what 117. sometimes requires protection page 422 Subjects sometimes called Servants 42. when they may safely engage in a just War 43. their Goods may be seized for the Debts of their society 448. how their Right may lawfully be taken from them 178. but not without just cause 179. may justly make War 427. what they may do if the cause be unjust ibid. or if they doubt not to execute the wicked commands of their Prince 428. not punishable for their Princes sin properly 411. of an Enemy may every where be presented unless protected by another Prince page 458 A Subject not to be sollicited to kill his Prince nor a Souldier his General 462. bound by the sentence of a Judge but so are not Strangers 448. being invaded the Peace is broke 549. not if Pirates ibid. fight under an Enemy whether it breaks the peace ibid. whether they may be compelled to be Hostages 555. and how ibid. of another Prince whether they may be defended page 425 Subjects not to resist the supreme Power proved by the nature of humane Society and Gospel 54 55. their liberty liable to the fact of their Prince 447. as to them a War may be on both sides just 429 430. taken in an unjust War to be delivered to their Prince 529. may make War against their Magistrates being authorized by the Supreme Power page 53 Subjection by way of punishment 117. Civil 485. Despotical ibid. mixt 486. perfect and imperfect page 116 117 Success good of bad designs no encouragement Pref. xii Succession is the continuation of an old Title in the same Family 42. makes men and Kingdoms Immortal 117. Males preferred before Females and the Eldest before the Youngest 128. to Kingdoms not to last beyond the time of the first King ibid. the Laws are divers concerning it 126. to an Intestate 122. what if childless 127. to an Estate newly gained 126. in Kingdoms Patrimonial how guided 127. Representative what 124. not known to the Germans till lately 126. Lineal Agnatical 130. Cognatical 129. that always respects the proximity to the first King 130. in Kingdoms indivisible to the Eldest 127. wherein the elder Brothers Son is preferred before the younger Brother 132. the Sisters Son before the Kings own Son 130. who shall be Judge of it if in doubt 131. of the Nephew before the Vncle is but of late page 132. Succession to Kingdoms the same as to other Estates when that Kingdom was first established 129. wherein the Antenate is preferred before the Postnate if the Kingdom be indivisible 131. why descendent rather than ascendent page 123 124 The Successor bound by the Contracts of a King 178. and how far page 179 Suffer a man may by occasion of anothers sin and yet not for it page 400 401 Suffrages how to be reckoned where divers Societies claim by unequal shares page 114 Superiours how they may lye to their Subjects 443. what they may do about the Oaths of their Inferiours 173 174. may compel their Inferiours not only to that which is justly due by Justice but by any other Vertue page 423 Suppliants liable to the licence of War 461. their Right to whom due 396 397. to be protected until the equity of their Cause be known 399. to be spared 508. unless guilty of some crimes deserving death ibid. Supplies sent to an Enemy by Neuters page 435 See Relief Supreme Power what and in whom 37. not in the People 37 38. it may be divided into Parts subjective and potential 46. not lessened by consenting that their acts shall be confirmed by the Authority of the Senate ibid. A Surety suffers not for the Debt but for his Engagement 400 401. not to be troubled unless the Principal be insolvent page 518 To Surrender unless succours come how to be understood page 531 Swallows feed their Young by turns page 123 T. TAlio not to extend beyond the person page 508 See Retaliation Talio bought off by the Jews page 371 Taxes that maintained the War restored by Fabritius page 477 The Temple at Jerusalem entred into by Pompey and burnt by Titus 466 467. its religious sanctity page 466 The Temples of the Gentiles burnt by the Jews ibid. Temples in War to be spared 514. to violate them Sacriledge page 515 Temptation vehement excuseth in part page 378 Terminus would have no bloud shed in his Sacrifices page 526 Territory whence 470. with what is fixt therein being taken in War is the Kings page 472 Terrour alone gives no internal Right to kill page 508 Testament wanting some formality what effect it