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
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
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
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
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
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
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
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
Plutarch reciting that Saying of King Pyrrhus That he would leave his Kingdom to that Son who had the sharpest Sword saith That it was so said only to excite them to enrich his House with Blood and Rapine Whereupon he breaks out into this exclamation Adeo insociabile ferinumque est propositum plus suo habendi So wild and unsociable a thing is Covetousness Aristotle seems exceedingly to blame them who though they are not willing to admit of any King or Governor over themselves but him that hath the true Right yet regard neither Right nor Wrong in the Government of Foreigners The Lacedaemonians saith Plutarch place the greatest part of Honesty in their Country's profit Jus aliud nec norunt Plut. Agâ—s nec discunt quam unde Spartam putant posse augeri They will neither know or learn any other Law than how to enlarge their Territories The like Character do the Athenians give of them in Thucydides That among themselves and to their own Civil Laws The Lacedaemonians prefer publick profit before honesty they were very just but as to Strangers they esteemed exery thing honest that was pleasant and every thing just that was profitable But yet when one of the Spartan Kings pronounced that Common-wealth happy Which Pompey reproves which was bounded by the Sword and the Spear Pompey correcting him said Yea rather that Common-wealth is truly happy that is on every side bounded with Justice For which he might also have produced the Authority of another Spartan King who preferred Justice even before Military Prowess Upon this very ground because all Martial Power ought to be regulated by Justice for in case all men were just there would be no need of valour Justice preferred before fortitude Even Fortitude it self is by the Stoicks thus defined to be Valour contending for Justice When Agesilaus in Plutarch heard the Persian King stiled Great He demanded Quomodo me major nisi sit justior How is he greater than my self unless he be more just Themistius in his Oration that he made to the Emperor Valens elegantly discoursing how Kings should be qualified And to be extended to all Nations if Wisdom were to chuse them saith Not such as should think themselves entrusted with the care of one single Nation only but of all mankind neither should he profess himself to be a Friend to the Macedonians only or to the Romans but to all Men and all Nations whatsoever As M. Antoninus sometimes said of himself Civitas Patria mihi est ut Antonino Roma ut Homini Mundus As I am Antoninus De non esu Animal l. 3. Rome is my Country as I am a Man the World So also Porphyry He that is guided by reason carries himself inoffensively towards his own Subjects yea and towards Strangers yea and towards all men See Cyril against Julian l. 6. Quanto ratione praestans tanto Divinior The more he partakes of Reason the more he partakes of the Divine Nature The very Name of Minos was odious to Posterity for no other reason but because he extended his Justice no farther than his Dominions Each Country groaned under Minos Yoke That even in War some Laws are in force Now what some have fansied namely That Inter Arma cessant Leges In War all Laws lye asleep is so far from truth that no War ought to be undertaken but for the prosecution of a mans Right nor any that is undertaken managed beyond the bounds of Justice and Faithfulness It was very well said of Demosthenes That War might justly be made against those who cannot be compelled to do us right in a judicial way Now against such as are sensible of their own weakness Judgments are forceable enough and so no need of War But against such as are or think themselves of equal strength if they will not do right War may be justly undertaken which also that they may be altogether righteous must be managed with as much Conscience as judgments are usually passed Admit then that Laws may sleep in the midst of Wars yet they must be those only that are Civil and Judicial But such only as are Civil and Judiciaâ— such I mean as are proper to peace but not such as are perpetual and fitted unto all times It was very well said therefore by Dion Prusaeensis That written Laws are of no force amongst Enemies but such as are unwritten That is Such as Nature her self dictates or the consent of Nations constitutes are in force even in the midst of Arms. There are Laws in the midst of Arms. When one asked King Alphonsus Whether he thought himself most indebted to Books or Arms he readily answered That he was beholding to his Books both for the knowledg of his Arms and also for his knowledge of the Laws of Arms. So also Plutarch Sunt apud bonos viros quaedam belli jura Amongst good men there are some Laws to be observed even in War Neither are we so to prosecute Victory as to enrich our selves by base and dishonest gain Eas res puro pioque duello quaerendas censeo This appears by that ancient form of the Romans These things I judge ought to be acquired by a just and pious War These very ancient Romans as Varro notes were very slow in making War and not very licentious when they did make it because they approved of no War but what was pious Camillus was wont to say That War was to be waged with no less Justice than Valour The like Testimony doth Scipio the African give of the People of Rome in his time namely that they always began and finished their Wars justly And another Author tells us That there are Laws for War as well as for Peace A third admires Fabritius for a gallant Soldier but principally for that which in War was very rarely found namely his Innocence as believing that some things usually done against an Enemy were impious What great power and efficacy the justness of a Cause hath Historians do every where declare The goodness of a Cause is of great efficacy in war Proverbial Sayings whilst they ofttimes ascribe the Victory to this as to its principal cause From whence arise these Proverbial Sayings The Courage of Soldiers do either rise or fall according to the equity of their Cause He seldom returns in safety that willingly engageth himself in an unjust War A good Cause is never unattended with hopes Thus Pompey in Appian cheers up the Spirits of his Soldiers We saith he must place all our confidence in the Gods and in the goodness of our Cause as having entred into this War upon honest and just grounds for the defence of the Common-wealth Thus likewise doth Cassius encourage his Soldiers by telling them That the greatest hopes were always where there was the best Cause The like we may read in Josephus Antiq. hist lib. 15. Abs quo stat Jus ab eo
Ver. 5 6 The blood of your lives will I require p 14 Gen. Ch. 14 Ver. 16 Brought back all those things p 529 Gen. Ver. 20 Tithes of all ibid. Gen. Ver. 21 Give me the persons and take the goods ibid. Gen. Ch. 18 Ver. 23 Destroy the righteous with the wicked p 435 Gen. Ch. 20 Ver. 12 Abraham of Sara she is my Sister p 438 Gen. Ch. 25 Ver. 6 Children by Concubines what portion p 125 Gen. Ch. 31 Ver. 20 26 27 Steal away the Heart p 441 Gen. Ch. 34 Ver. 30 Ye have made to stink p 468 Gen. Ch. 38 Ver. 24 Bring her forth and let her be burnt p 15 Gen. Ver. 20 Sent her the Kid which he had promised p 154 Gen. Ch. 48 Ver. 22 Which I took with my Sword p 468 Gen. Ch. 49 Ver. 6 In their anger they slew a man ibid. Exodus Exod. Ch. 7 Ver. 5 Idols to be abolished and why p 466 Exod. Ch. 12 Ver. 23 City set up strange Gods p 389 Exod. Ch. 13 Ver. 16 A Prince or Prophet seduce others ibid. Exod. Ch. 17 Ver. 14 God approves Abrahams War with Ameleck p 13 Exod. Ch. 20 Ver. 2 The four first Commandments explained p 387 Exod. Ver. 17 Thou shalt not Covet p 383 Exod. Ch. 21 Ver. 14 Sanctuary for the unfortunate p 397 Exod. Ver. 26 Liberty due for an Eye or a Tooth p 521 Exod. Ch. 22 Ver. 1 9 Sheep or Oxen stolen restore five-fold or double p 381 Exod. Ver. 2 The Night Thief may be killed p 32 Exod. Ver. 28 Nor curse the ruler of thy people p 60 Exod. Ch. 23 Ver. 3 Regard the poor in Judgement p 4 Leviticus Levit. Ch. 18 The degrees of affinity p 109 Levit. Ch. 19 Ver. 18 Love thy Neighbour as thy self p 17 Levit. Ver. 15 Regard the poor in Judgement p 4 Levit. Ch. 21 Ver. 7 Priests not marry a divorced woman p 105 Levit. Ch. 24 Ver. 20 Eye for Eye Tooth for Tooth p 370 371 Numbers Numb Ch. 14 Ver. 30 Gods Oath to Joshua p 168 Numb Ch. 20 Ver. 21 Innocent passage denyed p 83 Numb Ch. 25 Ver. 4 Hanged on a Tree p 217 Deuteronomy Deut. Ch. 8 Ver. 21. The Right of Kings p 54 Deut. Ch. 15 Ver. 13 Thou shalt not let him go empty handed p 523 Deut. Ch. 17 Ver. 7 The hands of the witnesses shall be first p 431 Deut. Ch. 19 Ver. 19 Do unto him as he thought to have done unto his brother p 381 Deut. Ch. 20 Ver. 10 Comest to a City proclaim Peace p 13 Deut. Ver. 19 Thou shalt not destroy the Trees p 460 Deut. Ch. 22 Ver. 1 Thou shalt not see thy Brothers Ox go astray p 184 Deut. Ver. 26 The Ravisher shall dye but not the Damsel p 501 Deut. Ch. 23 Ver. 6 Thou shall not seek their Peace p 185 Joshua Joshua Ch. 8 Ver. 15 His feigned flight p 439 Joshua Ch. 9 Ver. 15 His Oath to the Gibeonites p 168 Judges Judges Ch. 3 Ver. 15 Ehud's Fact p 66 1 Samuel 1 Sam. Ch. 8 Ver. 2 The Right of Kings p 54 1 Sam. Ch. 10 Ver. 5 10 Priests to be spared p 506 1 Sam. Ch. 11 Ver. 10 To morrow we will come out to you p 443 1 Sam. Ch. 15 Ver. 30 The duty of the Peers to a wicked King p 59 1 Sam. Ch. 19 Ver. 16 Michal's Image p 438 1 Sam. Ch. 22 Ver. 2 David's Guards p 60 1 Sam. Ver. 17 Saul's Servants would not fall upon the Priests p 431 1 Sam. Ch. 25 Ver. 33 David spareth Nabal whom he sware to kill p 170 1 Sam. Ch. 26 Ver. 9 None innocent that stretch out their hand against p 60 1 Sam. Ch. 31 Ver. 4 Saul's Death and Repentance p 219 2 Samuel 2 Sam. Ch. 24 Ver. 17 The people punished for their King p 41 2 Kings 2 King Ch. 3 Ver. 19 Fell every good Tree p 513 2 King Ch. 6 Ver. 19 Elisha's Lye p 443 2 King Ver. 22 Captives to be spared p 507 2 King Ch. 8 Ver. 10 Thou mayst recover but shalt surely dye p 443 2 King Ch. 16 Ver. 12 Asa reproved for his League and why p 185 2 King Ch. 18 Rabshekah though an Embassadour not admitted and why p 207 2 King Ver. 7 14 His satisfaction for breaking his League p 77 1 Chronicles 1 Chron. Ch. 26 Ver. 32 Judges in the affairs of God and the King p 47 2 Chronicles 2 Chron. Ch. 16 Ver. 27 Ahaziah forsook God p 185 2 Chron. Ch. 19 Ver. 2 Jehoshaphat's League with Ahab p 185 2 Chron. Ver. 6 8 Judge not for man but God p 47 2 Chron. Ch. 25 Ver. 7 Let not the Army of Israel go with thee p 185 Job Job Ch. 31 Ver. 26 27 Worship the Sun and Moon p 389 Psalms Psal Ch. 2 Ver. 10 11 Be wise O Kings serve the Lord with fear p 17 Psal Ch. 15 Ver. 4 Having sworn to his own hurt p 173 Psal Ch. 19 Ver. 8 The Law is holy and just p 10 Psal Ch. 51 Ver. 4 Against thee only have I sinned p 47 Proverbs Prov. Ch. 1 Ver. 26 God punisheth in Revenge p 364 Prov. Ch. 16 Ver. 4 The wicked for himself ibid. Eclesiasticus Eccles Ch. 12 Ver. 7 Dust to Earth p 214 Isaiah Isaiah Ch. 1 Ver. 24 Ah I will ease me p 364 Isaiah Ch. 2 Ver. 4 Swords into Plough-shares p 20 Isaiah Ch. 58 Ver. 5 6 Restitution p 495 Jeremiah Jer. Ch. 25 Ver. 12 God judgeth Kings p 40 Jer. Ch. 38 Ver. 5 He is in your power p 48 Jer. Ver. 26 The truth concealed p 4â—8 Ezechiel Ezech. Ch. 17 Ver. 12 13 14 Kings of Israel reproved for not keeping their faith with the King of Babylon Matthew Mat. Ch. 3 Ver. 2 Repent for the Kingdom p 18 Mat. Ch. 4 Ver. 17 The Kingdom of Heaven ibid. Mat. Ch. 5 Ver. 17 Destroy the Law but p 19 Mat. Ver. 21 Ye have heard it said to them p 16 Mat. Ver. 34 Swear not at all p 174 Mat. Ver. 38 Eye for Eye p 21 Mat. Ver. 39 Resist not evil p 21 32 33 Mat. Ver. 40 Sue thee ibid. Mat. Ver. 41 Go a mile ibid. Mat. Ver. 44 Do good to all p 370 Mat. Ver. 45 Causeth the Sun to shine p 186 Mat. Ch. 6 Ver. 14 15 Forgive all men p 371 Mat. Ver. 33 Seek ye first the Kingdom p 186 Mat. Ch. 7 Ver. 1 Judge not p 373 Mat. Ch. 10 Ver. 39 Loseth his life p 63 Mat. Ch. 11 Ver. 12 13 Kingdom suffers violence the Law continues till John p 18 Mat. Ch. 13 Ver. 29 Suffer the Tares p 434 Mat. Ch. 15 Ver. 5 Corban p 170 171 Mat. Ch. 22 Ver. 20 Tribute to Caesar p 66 214 215 Mat. Ch. 23 Ver. 21 Sweareth by the Temple p 170 Mat. Ch. 26 Ver. 52 Put up thy Sword p 32 Mat. They that take the Sword shall perish by the p 34 Mat. Ch. 24 Ver. 51 Hypocrites p 174 Mat. Ch. 26 Ver. 25 Twelve Thrones p 441
Kings serve God according to his command as Kings when they encourage vertue and depress vice not only in things appertaining to humane Society but in things appertaining also to the worship of God And so in another place How saith he do Kings serve the Lord in fear Ad Bonif. Ep. 50. unless it be in prohibiting and by a Religious austerity punishing all manner of impiety For to serve God as a man is one thing but to serve him as a King is another And a little after Herein do Kings serve God as Kings when in zeal to his service they do those things which none can do but Kings Arg. 2 The second Argument whereby we prove that all Wars are not unlawful is drawn from that place of St Paul before cited in the 13th to the Romans Rom. 13. where it is said That the highest powers and such are those of Kings are ordained of God and that power is therefore called Gods ordinance Kingly Government asserted by St. Paul From whence we inferr the necessity of our subjection together with that honour and reverence we owe unto them and that not so much out of fear regarding the power they have to hurt and punish as out of Conscience as it is Gods ordinance and out of a strong perswasion that in resisting it we resist God himself Now if the thing understood by the word Ordinance were only that which God permits and will not hinder as all actions that are vitious then would there follow no obligation of honour or obedience especially that extended to the Conscience and therefore the Apostles whole Argument would instantly fall to nothing whose main scope was to extol this Regal power which if wicked he could never do but by the same Argument he might as well have commended Theft and Robbery It must necessarily follow then that by this ordained power we understand such a power as God doth especially approve 〈◊〉 and then we may safely inferr That seeing that God cannot will things contrary to â—â—mself that this power is no ways repugnant to that will of God which is revealed in the Gospel and which obligeth all men to honour and obedience neither doth it at all weaken the force of this Argument That at that time when St. Paul wrote all Kings and Princes were strangers to the Christian Faith For in the first place this is not Universally true for even at that time Sergius Paulus being Propraetor of Cyprus had given up his name to Christ long before Acts. 13.12 Act. 13.12 Besides this dispute is not concerning persons whether pious or impious but concerning the Kingly function whether it be ordained of God or usurped by men which St. Paul seems here to determine plainly asserting That ordinance to be from God and thereupon concludes That it ought to be honoured and obeyed and that not outwardly only for fear but even in the inmost recesses of the mind where God alone doth properly reign Christianity then doth not abolish Soveraignty Nero and Agrippa though they had received this faith yet had still remained the one an Emperor the other a King which necessarily inferrs the power of the Sword For as under the Law the Sacrifices were reputed holy See Chrysost in locum supra citatum though offered by Hophni and Phineas Priests unholy so Pia res est imperium quamvis ab impio teneatur The Function is Sacre◠〈◊〉 though the person be never so wicked Saul was anointed King as well as David Arg. 3 A Third Argument is drawn from the words of St. John the Baptist who being demanded by the Jewish Souldiers what they should do to flee from the Wrath to come did not command them presently to lay down their Arms and desert their calling though they fought then under the Roman Banners as in all probability they would have done had it been contrary to the Christian Law to make War but allowing their calling he only labours to reform the abuses of it exhorting them to abstain from acts of unlawful violence and from false accusing and to rest content with their wages Luk. 3.14 Luke 3.14 But here some object That there was so great a difference between the precepts of Christ and the prescriptions of the Baptist that the Baptist seems to preach one Doctrine and Christ another but this we cannot admit first because both of them declare the sum and substance of the Doctrine they intended to preach in the same words Repent for the Kingdom of Heaven is at hand so begins the Baptist Mat. 3.2 And so Christ Mat. 4.17 And Christ himself saith The Kingdom of Heaven that is the new Law for it is the manner of the Hebrews The Jews call their Law Kingdom to call their Law by the name of Kingdom began to suffer violence from the daies of John the Baptist Mat. 11.12 John is said to preach repentance for the remission of sins Mark 1.4 So did the Apostles in the name of Christ Acts 2.38 John required fruits worthy of repentance and threatens destruction to those that do not produce them Matth. 3.8 10. He requires also works of Charity beyond the Law Luke 3.11 The Law also is said to continue till the days of John that is until the new and more perfect Law should with him begin Mat. 11.13 And for this cause it is that John is said to be Prophetis major Greater than the Prophets Mat. 11.9 Luk. 7.26 and that he was sent to give knowledge of Salvation unto the people Luk. 2.77 and to preach the Gospel Acts 19.4 Joh. 1.29 Mat. 3.11 Mat. 1.8 Luk. 3.16 Luk. 2.18 Neither did John ever distinguish Jesus from himself by any difference that there was in their Doctrines but only thus that what John declared generally and confusedly was more distinctly delivered by Christ who was the true light but by this That Jesus was the Messias that was promised the King of an heavenly Kingdom who should give the power of the holy Ghost to those who should believe on him The Fourth Argument and which seems to me of no small force is this That if by the Arg. 4 Gospel alâ— power were taken away from the Magistrate to execute capital punishments An Aâ—gument â—â—â—â—r â—â—om 〈◊〉 conâ—â—ouâ—◠〈◊〉 tâ—â—t â—ou â— follâ—w together with that of the Sword to defend their Subjects from Thieves and Robbers how soon would the Christian world be over-run with Rapin and violence and what a Deluge of wickedness of all sorts would break in upon us That this must needs be the consequence we shall easily grant if we either remember what sad effeâ—ts this remisness brought upon the old world or if we do but observe how hardly these sins of Rapin Cruelty and the like are restrained now even by capital punishments For the suppressing whereof Tribunals Laws and so many kinds and degrees of punishments are invented saith Chrysost in serm ad Patrem fidelem Wherefore if Christ
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
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
is the Minister of God for our good Now if there be a necessity of our subjection then there is the same necessity for our not resisting because he that resists is not subject Neither did the Apostle mean such a necessity of subjection as ariseth from an apprehension of some worse inconvenience that might follow upon our resistance But such as proceeds from the sense of some benefit that we receive by it whereby we stand obliged in duty not unto man only but unto God so that he that resists the power of the Supream Magistrate incurs a double punishment saith Plato First From God for breaking that good order which he hath constituted amongst men and Secondly From the Common-wealth whose righteous Laws made for the preservation of the publick peace are by resistance weakned and the Common-wealth thereby endangered For canst thou believe saith Plato that any City or Kingdom can long stand when the publick Decrees of the Senate shall be wilfully broken and trampled upon by the over-swelling power of some private men who in strugling against the execution of the Laws do as much as in them lyes dissolve the Common-wealth and consequently bring all into confusion The Apostle therefore fortifies this necessity of publick subjection to Princes with two main Reasons First Because God had constituted and approved of this Order of Commanding and Obeying and that not only under the Jewish but under the Christian Law wherefore the Powers that are set over us are to be observed not servilely superstitiously or out of fear but with free rational and generous Spirits tanquam à Diis datae as being given by the Gods saith Plato or as St. Paul tanquam à Deo ordinatae as if ordained by God himself Which order as it is originally Gods so by giving it a Civil Sanction it becomes ours also for thereby we add as much authority unto it as we can give The other reason is drawn ab utili from profit Because this order is constituted for our good and therefore in Conscience is to be obeyed and not resisted But here some men may say That to bear Injuries is not at all profitable unto us whereunto some men haply more truly than appositely to the meaning of the Apostle give this answer That patiently to bear Injuries conduceth much to our benefit because it entitles us to a reward far transcending our sufferings as St. Paul testifies But though this also be true yet is it not as I conceive the proper and genuine sense of the Apostles words which doubtless have respect to that universal Good whereunto this order was at first instituted as to its proper end which was the publick Peace wherein every particular man is as much concerned if not much more than in his private For what protection can good Laws give if Subjects may refuse to yield their obedience to them whereas by the constant observance of good Laws all estates both publick and private do grow up and flourish together Plato And certainly these are the good Fruits that we receive from the Supream Powers for which in Conscience we owe them obedience For no man did ever yet wish ill to himself But he that resists the power of the Magistrate and wilfully violates the Laws established doth in effect as far as in him is dissolve his Countreys peace Plato and will in the end bury himself also in the ruines of it Besides the Glory of Kings consists in the prosperity of their Subjects When Sylla had by his Cruelty almost depopulated Plut. Florus Aug. de Civ Dei lib. 3. c. 28. not Rome only but all Italy one seasonably admonisht him Sinendos esse aliquos vivere ut essent quibus imperet That some should be permitted to live over whom he might rule as a King It was a common Proverb among the Hebrews Nisi potestas publica esset alter alterum vivum deglutiret Were it not for the Soveraign Powers every Kingdom would be like a great Pond wherein the greater Fish would alwayes devour the lesser Agreeable whereunto is that of Chrysostome Vnless there were a power over us to restrain our Inordinate Lusts men would be more fierce and cruel than Lyons and Tygers not only biting but eating and devouring one another Take away Tribunals of Justice and you take away all Right Property and Dominion No man can say this is mine House this my Land these my Goods or my Servants Chrys de Statuis 6. Ad Eph. 5. but Omnia erunt fortiorum the longest Sword would take all The mighty man could be no longer secure of his Estate than until a mightier than he came to dispossess him the weaker must alwayes give place to the stronger and where the strength was equal the loss would be so too And this would at length introduce a general Ataxy which would be far more perilous than a perfect Slavery Wherefore seeing that God hath established and humane reason upon tryal approved of Soveraign Empire as the best preservative of humane Societies that every man should yield obedience thereunto is most rational For without Subjection there can be no Protection But here it will be objected That the Commands of Princes do not alwayes tend to the publick good Object and therefore when they decline from that end for which they were ordained they ought not to be obeyed To which I answer That though the Supream Magistrate doth sometimes either through Fear Anger Lust Covetousness or such like inordinate passions baulk the ordinary path of Justice and Equity yet are these happening but seldome to be passed over as personal blemishes which as Tacitus rightly observes are abundantly recompensed by the more frequent example of better Princes Besides the Lives of Princes are to be considered with some grains of allowance in respect of those many provocations and opportunities they have to offend which private men have not All men have their Failings we our selves have ours and in case we will admit of none in Kings we must not rank them amongst men Kings to be censured with some favour but Gods The Moon hath her spots Venus her Mole and if we can find nothing under the Sun without blemish Why should we expect perfection in Kings He is very uncharitable that judges of Rulers by some few of their Evil deeds passing over many of their Good ones Seeing therefore that there is in all mens lives as in our best Coin an Intermixture of Good and Evil it is sufficient to denominate a Prince Good if his Virtues excel his Errors Besides to charge the Vices of Princes upon the Government as they usually do who affect Innovation is but a cheat For what is this but to condemn the Law for the Corruption of some Lawyers Or Agriculture because some Husbandmen do curse God for a Storm Si mentiar ego mentior non negotium If I do lye saith the Merchant in St. Augustine it is I that am to be blamed not
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
in Histories many examples †Meierum in anno 1339. de Flandr Brab ◠XV. An Usurper how far to be obeyed The Acts of an Usurper binding and why We have hitherto treated of him who hath or had a Right to Govern now something we must say of him that Invades or Usurps the Government not after he hath either by long possession or by Consent or Agreement obtained a Right unto it but so long as the cause of his unjust acquisition continues And certainly during the time that he possesseth the Empire his Acts may have power to bind But yet not as they are his for Right to command he hath none but upon this presumption That he who of Right should govern whether King People or Senate had rather that his Laws for that time should be binding than that the people should live altogether without Laws and without Judgements which must necessarily introduce the greatest disorder and confusion Cicero condemns Sylla's Laws as too cruel against the children of those that were proscribed in making them uncapable of suing for Honours yet he thought fit that those Laws should be observed Affirming as Quintilian tells us that the state of the Common-wealth was so contained in those Laws that if they were not kept the Common-wealth at that time could not have subsisted Florus also concerning the Acts of the same Sylla saith thus Lepidus went about to rescind the Acts of this so great a man and indeed not without cause if at least he could have done it without the ruine of the Common-wealth And by and by It was expedient for the Common-wealth being then sick and wounded to be governed by any Laws whatsoever rather than to fret and scarrifie her Wounds by attempting an untimely Cure Yet notwithstanding at such times and in such Cases wherein our obedience is not so exquisitely necessary and yet may help to confirm the Usurper in his unjust possession If by our disobedience we incur no great danger we must not obey But whether it be lawful for the people by force of Arms to deject him that shall thus usurp the Soveraign power or to kill him is disputable XVI An Usurper may be killed during the War if no contract be made with him And in the first place If he that usurps another mans dominion have not gained it by a Just War that is by such a War as hath all the Rights required by the Law of Nations nor by any contract or agreement made with him or Faith given to him but that he holds his possession by force only The Right of War seems in this case to continue By the Right of the War continued and therefore what may lawfully be done against an enemy may lawfully be done against him whom any private man that hath not given his Faith to him may lawfully kill In reos Majestatis publicos hostes omnis homo miles est Against Traytors and publick Enemies every private man saith Tertullian is a Souldier So against such as desert their Colours in the time of War Tertul. Apolog. it is indulged unto every man to take publick revenge in order to the common safety XVII Or by vertue of some antecedent Law The same may be said if before such an Invasion there were extant any such Law authorizing any private man to kill him who dares in his presence commit such or such a fact As for example If being but a private man he shall go with a guard about him or if he shall attempt a Fort or kill a Citizen uncondemned or illegally condemned or if any man shall presume to create a Magistrate without just suffrages Many such Laws we may read of to have been in force among the Cities of Greece with whom it was also thought lawful to kill such Tyrants Such was that Law of Solon in Athens renewed after his return from Piraeeus against such as had abolished Popular Government or that after such abolition had born any office The like Law there was also in Rome called the Valerian Law against any man that should assume the office of a Magistrate without the peoples consent making it lawful for any man to kill such a man uncondemned Plut. Public as Plutarch relates where he thus distinguisheth Solon's Law from that of Publicola's Solon would have such a man legally convicted but Publicola permitted any man to kill him that usurped the office of a Magistrate without any formal Process And such was the Consular Law immediately after the Decemviral Government That no man should dare to create a Magistrate without an Appeal and he that created such might by the Laws both of God and Man be killed XVIII By his Commission who hath Right to the Empire No less lawful it is for him to kill an Usurper that hath an express Warrant so to do from him to whom the just Right of Government belongeth whether it be in the King the People or the Senate Amongst whom likewise we may place the Protectors or Guardians of Kings during their nonage Such as was Jehojada's to King Joas at whose command Athalia was deprived at once both of her Life and Kingdom 2 Chron. 23. XIX Why an Usurper may not be killed but in one of these cases Now unless it be in one of these Cases I cannot perceive how it should be lawful for any private man by force either to deject or to destroy him that usurps the Imperial Dignity Because possible it is that he who hath the true Right had rather prefer the peace and tranquillity of his Subjects though under the Usurpers power than embroil his Countrey in blood or to vex his Subjects with Civil War which are the sad and bloody effects and consequences that attend the Murther or Expulsion of Kings especially if his quarrel be espoused by either a strong Faction at home or powerful Friends abroad Or because it is at least doubtful Whether that King People or Senate in whom the Right of Empire is are willing that the matter should be brought to so desperate an issue And without the precise knowledge of this all violence of this kind is unjust It is very true what Favonius in Plutarch observes Pejus est Bellum Civile Dominatu Illegitimo Vita Bruti An Intestine War is more destructive than any Tyranny For though the Rage of Incensed Tyrants may produce more Tragical effects upon some particular Families ☜ yet the Deluge of a Civil War spreads farther continues longer and leaves more dreadful prints behind it than any Tyranny Give me any peace saith Cicero rather than a Civil War Titus Quintus told the Lacedaemonians Liv. 34. That it would be much better for them to bear with the Tyranny of Nabis than by endeavouring by Arms to recover their lost Liberty to make the Tyrants Grave in the ruines of their City And to this purpose was that prudent advice of Aristophanes Leo in Civitate non est alendus
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
so to do in respect of his dominion in the North Sea Queen Mary let a Lease of the Fishing of the North parts of Ireland for twenty one years for a certain Fine and 1000 l. yearly Rent to be paid into the Treasury of Ireland The Hans-towns had liberty of Fishing granted them in those Seas 1 Mar. upon some conditions as appears by the Rolls of Chancery And for the Fishing in the North Seas Natures Law Merchant Licences were usually granted at Scarborough Castle King James set out a Proclamation 1609. to restrain all strangers from Fishing on the Coasts of England Scotland and Ireland without Licence to be yearly granted can be claimed by any people as their peculiar Right XI How such possession is gained and how long it lasts But this also is to be observed That where this Law of Nations is not yet received or now abolished the bare possession of the Coasts is not sufficient to entitle any people to a Right in the Seas adjoyning Nor is it enough for a Prince to conceive or to write himself Lord of the Seas unless by some Overt Act he proclaim himself to be so Besides That Dominion that is acquired by occupancy may be deserted and then the Sea returns to its pristine nature and is Common to all as the Shoars are being destitute of buildings and as the Right of Fishing in Creeks of a River as Pomponius notes XII Such Occapancy hinders not our Right to Traffick innocently by Sea But most certain it is That the Right that is gained by Occupancy extends not so far as to give a Right to Impede any Nation from the benefit of a free passage so as it be meerly for Innocent Commerce and Traffick but not for depredation or such like acts of Hostility seeing that even by Land we allow the like freedom of passage which usually is less necessary and more offensive XIII That the Soveraignty over some parts of the Sea may be possest and how But that the sole Soveraignty over some parts of the Sea without any other Propriety may be held may more easily be evinced Neither as I suppose can the Law of Nations whereof I have spoken gain-say it The Argives charge it upon the Athenians as a manifest breach of their League For that they had suffered the Spartans being their enemies to pass through their Seas unmolested whereas it was expresly provided against in the said League That neither party should permit the others enemies to pass 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 through any part of their dominions Lib. 6. And as Thucydides records it when the Grecians had made a truce for some years in the Peloponesian War it was allowed to the Megarenses That they might freely and safely pass through their own and their Confederates Seas So likewise Dion Cassius describing some part of the Sea doth it thus All that Sea belonging to the Roman Empire And Themistius also concerning the Roman Emperour saith That his dominion reacheth over Sea and Land And to the same purpose is that of Oppianus to the Emperour The Seas do know no others Laws but thine Dion Prusaeensis among the many priviledges given by Augustus unto the City of Tarsis adds this That he gave them the dominion over the River Cydnus Philip 2. and over the Sea adjoining thereunto Demosthenes saith That the Lacedaemonians governed all both by Sea and Land And he that wrote the life of Timotheus relates That after such a time the Lacedaemonians laid down their long continued claim and voluntarily yielded unto the Athenians the Soveraignty over the Sea Curtius of the City of Tyra saith much to the same purpose That she sate as Queen in the midst of the Sea extending her dominion not to her Neighbouring Seas only but to all others whithersoever her Fleet should ride Philo the Jew discoursing of Kings saith That they add to their possessions Seas infinite in number and extent So he that penn'd that Oration concerning Halonesus which is inserted amongst those of Demosthenes speaking of Philip of Macedon saith All that he desires of us is That we would confess our selves unable to defend the Seas without him and therefore that we would put him into the possession of them And the Emperour Julian speaking of Alexander saith That he endeavoured by that War to make himself Lord both of Sea and Land Now what Alexander endeavoured to do his Successor Antiochus claimed as his right as appears by that Speech of his in Gorionides Nonne terra mare mea sunt Are not both the Sea and the Land ours So also did his other Successor Ptolomy if Theocritus deceive us not O're many Seas and Lands his Empire reacht And again All Lands and Seas and roaring Rivers lye Vnder the Empire of King Ptolomy Now let us us descend to the Romans Hannibal himself thus bespake Scipio the Greater We Carthaginians are confined within the Coasts of Africk whilest ye Romans are known to lord it over Foreign Kingdoms both by Sea and Land And of the Lesser Scipio Claudian writes thus With Rome's great Power first in Revenge he awes The Spanish Ocean under Roman Laws All the Roman Historians do every where call the Mediterranean Sea their own As Salust Florus Mela and others But Dionysius Halicarnassensis owns them as Lords not of the inland Seas only which he bounds with Hercules Pillars but of the Ocean as far as it is not impossible for men and Ships to sail And Cassius grants That their Empire extended almost as far as there was either Sea or Land Appian describing the vastness of their power assigns unto them the Euxine the Propontis the Hellespont the Aegaean the Pamphilian and the Aegyptian Sea And Plutarch makes Pompey Lord of all that Sea that lay within Hercules Pillars So doth Appian This also doth Philo against Flaccus acknowledge Since which saith he the Family of the Caesars have got the Empire both of Sea and Land Ovid also speaking of Augustus Caesar saith Pontus quoque serviet illi Even the Seas shall him obey And Suetonius likewise records it in honour to the same Augustus That during his Reign the Temple of Janus was twice shut up he having so often made peace with all Nations both by Sea and Land And in another place he tells us That the same Augustus kept constantly two great Fleets the one at Misenus the other at Ravenna for the defence of the Vpper and the Nether Seas So also Valerius Maximus tells Tiberius That by the unanimous consent of both Gods and men the Soveraignty of the Seas was committed to him The very same doth Philo testifie of the said Tiberius That his Empire comprehended both Sea and Land And therefore Josephus stiles Vespasian Terrae Marisque dominum The Lord of Sea and Land The like doth Aristides in many places attribute to Antoninus the Emperour Procopius tells us of several Statues of the Emperour Justinian erected in many places as holding in his hand
succeed in their Right stand obliged by that contract XVI Whether a River changeing its course changes the bounds of the Territories Controversies do frequently arise between neighbouring Nations whose Territories are separated by the Intervention of some great River whether so often as that River shall change its course the bounds of both Empires do change with it and whether what that River by altering its course takes from the one doth of right belong to the other which dispute cannot be determined without first knowing the nature and the manner of the Tenure Surveyors tell us that Lands are of three several kinds Jul. Frontin some are divided and inclosed with artificial Fences some again are assigned by measure in gross as by hundreds of Acres or Furlongs and others are called Arcifinia because as Varro hath observed Nature hath fenced them with such bounds as are sufficient to secure them from the Incursions of an Enemy as with Mountains Woods and Rivers Pliny speaking of the Alpes saith We carry away such things as Nature ordained for Boundaries to separate Nations And such Lands are also called Occupatory because commonly they are such as being waste and desart or being gained by the Sword are held by occupancy In the two former kinds although the River do change its course yet is nothing changed of the Territory but what is gained by the River is the Occupants But in those that are Arcifinious that is which Nature hath thus bounded the River in altering by little and little its course doth also alter the Borders of the Territories And whatsoever the said River shall cast to the adverse part shall be accounted his to whose Territory it is added because it is very credible that both people did at the first agree that the midst of that River should be the Natural Boundary of both Empires Tacitus accounts the Channel of the Rhine sufficient to bound the German Empire But Spartianus tells Adrian There are many places wherein the Barbarians are divided not by Rivers but by Land-marks And Constantine calls the River Phasis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the common boundary Diodorus Siculus reciting the Controversie that there was between the Egesthenes and the Selinuntii saith That the River parted both their Territoriies And Xenophon calls the like River simply 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the Horizon or Bounderer The Ancients record it of the River Archelous that because it kept no setled or constant course but sometimes branched it self into smaller Streams and sometimes like a Serpent running in an oblique or indented Channel it gave frequent occasion of War between the Aetolians and the Acarnanians concerning the Lands adjacent until Hercules immur'd it with Banks For which service Oenus King of Aetolia gave him his Daughter in marriage XVII What if the waters do wholy forsake the Channel What I have hitherto said holds true in case the stream do not change its Channel For a River as it divides Nations is not to be understood barely as a Current of Waters but as waters running in such a Channel and included within such banks Wherefore though in some particular places it may gain or lose on either side by reason of the weakness of the banks or the violence of the Stream and thereby beget some small alteration yet whilest the whole body of the River retains its wonted form the River seems to be the same But if the whole River do at once change its Channel then it is another thing And therefore as when the old Channel is dammed up with banks of earth above and the waters thereby turned into a new one which is dugg purposely to receive them the old ceasing it is called a new River So if the old Channel shall be forsaken by reason that the waters have found out a new passage it is not the same River that it was but the old being lost the River is to be accounted new And as a River though dried up in a time of extream drought yet is each Territory bounded with that mediety of the Channel that is next unto it because it may be safely presumed that it was the will and intention of either people to be naturally separated by the midst of that River And that in case the River should dry up that either of them should hold what they held before so it is likewise if the water shall wholly forsake the Channel When question is made of the bounds of an Empire those Territories that do reach unto some great River are always reckoned to be Arcifinious that is naturally bounded because nothing is so fit to bound Nations as that which cannot easily be passed over But that Kingdoms should be bounded by either Land marks or by admeasurement is rarely seen and where they are so it cannot be thought to be done by Original acquisition but by consent XVIII The whole River sometimes belongeth to one Territory and none to the other Although where the bounds of Empires are doubtful as I have said each Territory is presumed to extend to the midst of the Channel yet it may and sometimes doth so fall out that the whole River belongs to one Empire only namely when either the River was preoccupyed before the Empire on the adverse bank began or when the matter was so determined by the consent of both Nations XIX That things clearly deserted become the next occupants Neither should it escape our observation to know That such things as have been occupyed in case they be deserted by the occupants and have then no owner may be held by him that shall next seise them as by primary acquisition because what no man can claim a right to returns to its pristine condition and are really his that can first apprehend them But this also must be considered That new discoveries are sometimes so made at the charge of the Prince or people That not only the Empire and Soveraignty wherein consists that eminent right whereof we have already discoursed but the private and full Dominion thereof should in the first place be generally vested in themselves and after such investiture then that it may be so distributed by parcels to private Families that their Title should still depend upon the right of the first discoverers if not as that of a Vassal upon his Patron nor as that of a Fee-farmer upon his chief Landlord yet in some other more mild and easie manner as there are many ways whereby we may claim a right to a thing Amongst which is the right of a man that hath but an estate expectant committed to him though but in trust for another De benef l. 7. c. 12. l. 8. c. 12. Thus Seneca It follows not because thou canst neither sell waste or exchange what thou hast that therefore it is not thine Tuum enim est quod sub certa lege tuum est For that also is thine which is but conditionally thine And again Quaedam quorundam sunt sub
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
his willingness to accept of it by some outward signs which though it be usually subsequent to the tender of the giver yet may it also precede it As when a man requires that such a thing should be given him in this case it is presumed that he is willing to receive it unless it do appear that he hath altered his mind as to other things requisite as well to the transferring as to the acception of a Right in things and how both may be safely done we shall shew more fully when we treat of promises for concerning both these Nature hath prescribed the same Rules III. Empires whether alienable As other things so are Empires alienable by him in whose dominion they truly are that is as we have said before by a King whose Kingdom is Patrimonial But otherwise by the people yet not without the Kngs consent because he hath a kind of Right in it though but to the present revenue which cannot without his own act be taken from him Thus it stands with a whole Soveraign Empire IV. That the whole cannot alienate the parts that consent not to the Alienation But as to the Alienation of any one part of the whole it is further requisite that that part that is to be alienated consent thereunto For they that first entred into that society did as may be presumed contract a firm and immortal League among themselves for the defence of all those parts which are called Integrants Whence it follows that these parts are not so under their own body as the members of a natural body which cannot live without the life of the body and are therefore for the preservation of the body sometimes justly cut off But this body whereof we now speak is constituted after another manner namely by mutual consent and agreement and therefore its power over its parts depends wholly upon the will and intention of them who first instituted that society who without doubt would never have granted such a power to the whole as to abscind from it self any of its parts and to give them up into the power of another V. Nor any part over themselves but in cases of necessity Neither is it on the other side in the power of any part to recede from the whole unless it be evident that it cannot otherwise subsist For as we have said already In omnibus quae sunt humani instituti excepta videtur necessitas summa quae rem reducit ad merum jus naturae All humane constitutions give place to the Law of Nature in casâ—s of unavoidable necessity Almost all Nations saith St. Augustin are taught by the very voice of Nature to submit to the will of the Conqueror rather than to hazard an utter devastation And therefore as Herodotus notes In that Oath wherewith the Grecians bound themselves to be faithful to the Persians as to the Conquerour this Salvo was added Vide infra c. 24. §. 6. Nisi planè coacti Vnless they were manifestly forced to the contrary Thus we read that Anaxilaus was deservedly acquitted by the Spartans for delivering up the City Byzantium being distressed more by famine within than by the Sword without And Xenophon tells us that the Emperour Anastasius returned thanks to his Commanders for their timely surrender of the City Martyropolis thereby preventing the unnecessary effusion of blood since it was impossible to be defended Cum fame habitare virtus recusat Valour will not cohabit with famine saith Procopius neither can we expect that Nature should act vigorously Goth. l. 4. when she wants nourishment So Cephalas in his Epistle to the Emperor Alexius being straitly besieged in Larissa Yielding to necessity we must deliver up the Town to those who not only besiege us An. Commen lib. 6. but maninifestly starve us for what can valour do against the force of Nature VI. The causes of this different power Now the reason why in cases of absolute necessity every part of the society hath more right to defend it self than the body of that society can have over its parts is because that part that is so necessitated may use that Right which Nature gave it before that society was instituted which the whole society cannot Neither let any man say that the Right of Empire is in the whole society as in its subject and therefore may be alienated by it as things held in propriety may for the Government is indeed in the whole body as in its adequate Subject but not divisibly in many bodies as the Soul is in perfect Bodies But that necessity that enforceth us to flee back to the Original Right of Nature for defence cannot here have place For under that Right the free use of Nature is comprehended as eating and detaining what is ours which are natural but so is not the Right of Alienation which receiving its authority from humane institution is from it to receive its bounds VII That the Empire over some place may be alienated But as to the Empire over such a place being a part of the Territory that lies uninhabited and desart I cannot discern any reason at all why it may not be alienated either by a free people or by a King with his peoples consent For as every part of the people have equally freedom of Will so have they equally a Right to gainsay whatsoever any other would have but the Territory it self whether wholly or in its part considered is the peoples Common undivided and therefore wholly at their dispose but as to the soveraignty over any part of the people if as I have said it cannot be alienated by the whole body of the people much less can it be done by a King who though he have the full power yet he hath it not fully VIII No part alienable either for profit or necessity by a King alone And here I must crave leave to dissent from those Civilians who hold that no part of an Empire can be alienated by a King unless it be for publick profit or out of necessity unless they understand it in this sence that where the profit doth equally aâ—crew both to the whole Nation and to that part which is to be alienated the consent of both may easily be collected from their silence though of no long time which may much more easily be presumed if there appear likewise a necessity for it But if either part do manifestly declare against it there can be no Right to alienate unless the part be evidently enforced either to separate from the whole or suffer themselves inevitably to be destroyed IX Infeudations and Morgages of the parts of the Empire unlawful Under Alienation is deservedly comprised even Infeudations under penalty of confiscation for breach of Faith given to the Lord of the Feoff or when the Family is extinct * Sub onere commâ—ssaeâ— feloâ—ia aut deficiente familia Vide l. 1. c. 4. §. 12. For even this is a conditional Alienation wherefore we often see
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
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
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
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
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
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
notwithstanding is not he that negotiates the publick affairs to be strictly tyed up to this rule as some hold so that his act shall then only be held firm and ratified when the Common-wealth is meliorated by it For to reduce a Prince to such straits would be dangerous to the Commonwealth Neither is it likely that when the people transferr'd the Government upon him they intended so to retain him But what the Roman Emperors answered in the cause of their City That what was transferred by the Magistrate ☜ should be of force in doubtful matters but not when that which is clearly due to the City is rashly given away or forgiven the same answer may and ought to be given to this question in the behalf of the whole body of the people observing a due proportion For as it is not every Law that obligeth Subjects for besides those which command things unlawful some Laws are evidently absurd and foolish as that Law of Cabades King of Persia recorded by Procopius and Agathias Neither is it congruous to reason as Peter Ambassador of Justine the Second told Cosroes King of Persia treating about some things which Justinian seemed long before to promise to the Saracens That a Common-wealth should forever be condemned for one simple Law or custome introduced or enacted by one man although an Emperor So also the Contracts of Princes do bind their Subjects if they have any probable reason to justifie them which in doubtful cases ought to be presumed in respect of the wisdom and authority of those that made them And it is much safer thus to distinguish of them than as some do by the greater or lesser damage that ariseth to the Commonwealth by them For we are not so much to regard the event of such Contracts as the reasons whereupon they were grounded which if probable the people shall be bound by them if by any accident they shall begin to a be free people and so shall they that are Successors as being for the time the heads of the people For if the people being free shall make any Contract or agreement their Kings that shall afterwards Reign shall thereby be bound although he receive the Kingdom in the fullest Right The Emperor Titus is highly commended for this That he would not endure to be sollicited to confirm any thing that his Predecessors had granted thinking it but reasonable That if he expected that his Successors should be bound by his acts he also should be obliged by the acts of their Predecessors Suet. c. 8. The Grants of good Princes shall bind their Successours Whereas Tiberius and they that succeeded him did never hold the Grants of his Predecessors to be good unless they themselves had granted the same to the same persons That excellent Emperor Nerva following the example of Titus in that Edict recorded by Pliny speaks thus Let not any man conceive That what he hath got from any of my Predecessors either privately or publickly shall by me be so far rescinded as that they shall be indebted to me though but to confirm it neither shall they need any mans Intercession to obtain it But when Tacitus had declared how Vitellius had torn the Empire in pieces without any regard had to Posterity the Common people flocking about him But not of prodigal Princes and courting him for his profuse gifts and some others hoping for a good purchase tempting him with ready money at length adds this Apud sapientes cassa habebantur qua neque dari neque accipi salva republica poterant That such gifts were always by wise men accounted void which could neither be given nor received without endangering the Commonwealth Which very saying of Tacitus is much commended by Mariana and applyed to the vast and unbounded Beneficence of Frederick King of Naples who gave away as Philip de Comines relates not his own Crown Lands only but other mens also according as his fancy led him The same may very fitly be applyed to the question in hand and therefore Galba made no scruple of revoking the Grants of Nero even from those that had purchased them leaving the Tenth part only unto them as Tacitus and Plutarch testifie So did Basilius the Macedonian Emperor recover all that the Emperor Michael had given away Whereof Zonaras thus That it was unanimously agreed that They that had received moneys without any probable cause should restore it some wholly and others one half The like did Charles the Eighth of France revoke all that Lewis the Eleventh had prodigally given not excepting his Donatives to the Church As Commineus testifies Comines lib. 9. This also may here be added if any such accident fall out wherein a Contract made by a King is discovered to be not only damagable but pernitious to the Commonwealth so that at the time when the said Contract was so made had it been applyed to that case it had been judged unlawful and unjust Then may that Contract be not so much revoked as declared to be no longer binding as if made with condition of being void in that case without which condition it could not have been justly made Thus did that wise Queen Elizabeth revoke some priviledges granted to the Hans-Towns See Camdens Elizab. Anno. 1595 1597. in Controversia Hansiatica by her Predecessors when they began to exact them as due by rigour of Law and not as granted them by the meer favour of the Prince Alledging that priviledges granted by Princes to their subjects much more to strangers might according to the times for the benefit of the Commonwealth and other causes be lawfully suspended yea revoked and made void And when the same Queen had drawn a dangerous War upon her self for assisting the Hollanders who refused to repay her those vast sums expended for their ten years defence upon pretence that by her Contract with them that money was not due till the War was ended and that till then she could not recede from her contract She prudently replyed That all Contracts between Princes were to be understood to admit of an interpretation of sincere fidelity Neither is any Prince bound by his Contracts when for just cause that Contract turneth to the publick Detriment That the peace is not broken though a Prince recede from his Contract when it is done by an accident of a new case or when it comes to a new case which had it been thought on had otherwise been provided against Lastly That a Prince is not bound by any Contract though solemnly made if it tend to the Detriment of the Commonwealth For that a Prince is more strongly bound to the Commonwealth Vide Camd. Eliz. 1595 1597. than to his own Promise as Mr. Camden records And what is here said of Contracts is true also in the Alienation of the peoples money and of any other things which the King hath by Law a power to alienate for the publick good For herein also is this
fitter opportunity to treat hereof when we come to speak of such accidents as usually happen in War CHAP. XVI Concerning the True meaning and Interpretation of Leagues and Promises I. How Promises do outwardly bind II. The words to be understood as vulgarly taken unless strong Conjectures lead us otherwise III. Words of Art according to Art IV. Conjectures useful where the words are either ambiguous or seem to be repugnant or offer themselves freely as V. From the Subject matter of the Promise VI. From the effect VII From things conjoyned either in beginning or in place also VIII Whereunto appertains that conjecture that is drawn from the reason moving and when and how that takes place IX Of the large and strict signification of words X. The distinction of Promises into favorable burthensome and mixt or middle XI Concerning the acts of Kings or people the difference of those Contracts which oblige in equity and of those that oblige in strictness of Law rejected XII Out of these distinctions some rules are formed that will guide us in our interpretations of Promises and Contracts XIII Whether under the name of Associates those in present or those also in future be comprehended and how far XIV How these words are to be understood that one party shall not make War without the approbation of the other XV. Concerning these words that Carthage shall be free XVI What Contracts are to be accounted personall and what real explained by distinction XVII A League made with a King is in force though that King be expelled his Kingdom XVIII But not as to him that usurpeth the Kingdom XIX A Promise made to him that shall first do a thing if that thing be done by many at once to whom is it due XX. A Conjecture freely offering it self may either be extended and in what cases XXI Concerning the fulfilling of a command not directly in kind but in another kind as good or better XXII Or Contracted and that either from some Original defect in the Will which also may be collected either from the absurdity that will ensue XXIII Or when that which was the sole cause exciting the will shall cease XXIV Or from the defect of the matter XXV Observations upon the aforesaid conjectures XXVI Or from the repugnancy of some emergent case with the Will which may be collected either as being unlawful XXVII Or when by reason of that act some great damage or charge ariseth to him that promiseth XXVIII Or by some other signs as when the parts of the writing do clash one against the other XXIX By what rules then we are to steer our conjectures XXX That in a dubious case a writing is not necessary to perfect a Contract XXXI That the Contracts of Kings are not to be interpreted by the Roman Laws XXXII Whose words are most to be observed his that offers a condition or his that accepts of it explained by a distinction I. How Promises bind externally IF we respect the person alone that promiseth he is obliged to perform that freely whereunto he was willing to be bound What Cicero saith in this case is true * De off l. 1. In fide quid senseris non quid dixeris cogitandum In things depending upon faith what thou meanest is more to be considered than what thou saiest But because our inward thoughts are not discernible and that there would be no obligation at all by Promises were every man left at liberty to frame what interpretation he pleased of them therefore some certain Rule must be agreed upon whereby we may know to what our Promises do bind us and surely natural reason will inform us That he to whom any thing is promised hath a power to enforce the Promiser to that which his Promise rightly interpreted doth suggest For otherwise no treaty would have an end which in things appertaining to Morality is held impossible And perhaps in this it was â—hat Isocrates treating of agreements in his prescription against Calimachus saith We men do all of us whether Greeks or Barbarians dispatch affairs using this common rule hence it was that in ancient Leagues this form was usual saith Livy Without any evil fraud according to the usual sence and true meaning of the words here at this time Thus do the Hebrew Doctors upon the 30. of Numbers interpret Vows in that sence as the words are commonly then understood The best rule of interpretation is that which guesseth at the will by the most probable signs Now these signs are of two sorts as words and other conjectures and these considered sometimes a part and sometimes conjoyned II. According to the sense of the words if other conjectures do not hinder If there be no conjecture that guides us otherwise the words are to be understood according to their propriety not that which is Grammatical or Primitive but that which is vulgar and most in use Quem penes arbitrium est jus norma loquendi Which givâ— at pleasure Rules and Laws to speech It was very well said by Procopius Vand. l. 1. Long time doth not alway preserve words in the same signification as they were at first given For the very things themselves are turned in sense according to mens pleasure without regard to those names that were originally imposed on them It was but a simple refuge that the Locrians made use of against Perjury when having put some of their enemies earth into their Shooes and carrying some heads of Garlick covertly on their shoulders they sware they would keep the Articles of the League which were very grievous so long as they carried those heads on their Shoulders and trod upon that earth But having cast away the earth out of their shooes and thrown away those heads of Garlick from their Shoulders they thought themselves absolved from their Oaths which story we find in Polybius not much unlike is that of the Boeotians in Thucydides Lib. 12. Who having promised to restore a certain City thought it sufficient to preserve their faith if they restored it not standing but demolisht So Sultan Mahomet having taken Euboea cut the Governours body asunder whose head he had promised to preserve But as Cicero well observes this is not a way to prevent Perjury but to confirm it III. Words of Art according to Art Referent ad flatum finitivum If in a League there be an occasion to make use of Terms of Art which the people understand not those terms are to be defined and explain'd by the most skilfull in that Art as what Majesty is what Parricide c. wherewith Rhetoricians use to limit the matter treated of For what Cicero saith is very true That the terms of Logick are not vulgar but proper to themselves only as indeed are the terms of every art As when the word Army is used it is to be understood of such a number of Souldiers as dare openly invade anothers Dominions For Historians do distinguish between those
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
Embassador admittance and he may command him to depart his Kingdom if he behave himself seditiously but that none should be without cause denyed Now causes there may be First from him that sends Secondly from him that is sent and Thirdly from the matter of Embassage As to the first we read that Pericles dismist Melesippus the Lacedaemonian Embassador beyond the Territories of Athens because he came from an Armed Enemy And the Roman Senate denyed admission to the Carthaginian Embassador Vid. Camden An. 1571. Quaest 4. Livy l. 41. Zonaras because they had an Army in the heart of Italy So did the Achaians to the Embassadors of Perseus because he attempted a War against the Romans The like did Justinian to the Embassadors of Totilas and the Goths in Vrbin to the messengers of Belisarius And the Embassadors of the Scythians because they were a people notoriously wicked were in all places repulsed as Polybius testifies As concerning the second cause i. e. from the person sent an example we have in Theodorus the Atheist to whom Lysimachus refused to give Audience though he came as an Embassador from King Ptolomy The like hath been done to others for no other cause but personal hatred The third is when the ground or reason of him that sends is suspected to move Sedition as was that of Rabshakeh rejected by Hezekiah Rabshakeh's Case 2 Kings 18. and the like Or when the matter or form is not well suited to the digniâ—y of the person with whom we treat or not so well timed So the Romans forbad the Aetolians to send out any Embassadors without their Generals permission And Perseus was forbidden from sending any Embassadors to Rome but only to Licinius so they commanded the Embassadors of Jugurtha to depart out of Italy within ten dayes unless they came to deliver their King and Kingdom into the power of the Romans So the Emperour Charles the Fifth commanded the Embassadors sent to denounce War against him from France Venice and Florence to be conducted to a place thirty miles distant from his Court as Guicciardine records it Lib. 18. And thus may those Ordinary Embassadors which are constantly resident in most Courts be worthily rejected as unnecessary and a new upstart custome whereof former Ages were wholly ignorant IV. Against such Embassadors as raise Sedition our defence is lawful but not their punishment Concerning the latter priviledge of Embassadors namely That they should not be molested the question is more arduous and knotty and by the best Wits of this Age variously handled In the stating whereof they have respect First To the persons Secondly To their Attendants Thirdly To their Goods As to their Persons some think that they are to be protected against all unjust force only esteeming their priviledges to be understood of Common Right Others are of opinion that the persons of Emperours are not for every cause to be molested but only when they themselves do violate the Law of Nations which opens a door so wide that all delinquencies are punishable in Emperours except such as are committed against the Civil Law For in those committed against the Law of Nations are contained even those that are committed against the Law of Nature Others do yet restrain this force to those who shall be found to act any thing against the State of the Common-wealth or against the honour and dignity of the person to whom they are sent which some think to be of dangerous consequence and therefore would have complaint made to him that sent them and the Embassadors sent home to be by him punished Others there are who think it fit in this case to appeal to other Kings and Free States that are not concerned desiring their advice therein which indeed may stand with prudence but not to be imposed upon us as a Law The Arguments which every one of these do bring to strengthen their several opinions do conclude nothing certainly Because this Right is not grounded upon reasons that are certain as the Law of Nature is but it receives its bounds from the consent of Nations Now the Nations may either altogether provide for the safety of Embassadors or with some certain exceptions For advantages may by either of these arise to the Common-wealth By this latter the punishment inflicted upon such as notoriously offend deters others and secures the peace of that Nation By the former the profit ariseth to the State by Embassies which are the more easily and willingly undertaken when the persons sent are encouraged thereunto as knowing that the greatest care that can be is taken for their security we are therefore to observe how far forth the Nations did agree in this point which cannot be evinced by examples alone For of these we have enough extant on either side we must therefore have recourse herein as well to the Judgement of the Wisest Men as to our own most probable conjectures For the Judgement of the Wisest Men are guided by two notable precedents one out of Livy the other out of Salust That out of Livy by the Embassadors of Tarquine who pretended only to treat with the Senate about some of Tarquine's Goods but were found conspiring with the Citizens to betray the City And when it was moved in the Senate What should be done with them It was at length resolved on That though they deserved to be proceeded against as enemies yet valuit Jus Gentium The Law of Nations must be preserved Whence we may conclude That by the Law of Nations Protection is due unto Embassadors though they should be found plotting against the State they are sent unto That in Salust doth more immediately respect the Concomitants of Embassadors than Embassadors themselves and yet by an Argument drawn from that which is less credible to that which is more may serve to prove what the Law of Nations allows to Embassadors in the case aforesaid Salust speaking of Bomilcar who came to Rome as an Assistant in the Embassage but was found stirring up the Citizens to Rebellion saith thus Fit reus magis ex aequo bonoque quam ex jure Gentium He was made Guilty rather by the Rules of Equity than by the Law of Nations Where by aequum bonum is meant the meer Law of Nature which requires that he that doth evil should suffer for it being found But the Law of Nations excepts from this General Rule Embassadors and such as like them come upon the security of the Publick Faith Wherefore it is contrary to the Interest of the Law of Nations that Embassadors should be held guilty as many other things are which are permitted by the Law of Nature Our conjectures also may be thus guided Most probable it is that the priviledges granted to Embassadors are somewhat more than what is due unto others by common right But in case they are no longer to be secured than whilst they live regularly what have they more than others Besides the benefit that
Josephus testifies against Appion Contr. App. lib. 1. And in another place discoursing of the Reasons why most Cities were so ill governed he adds these Because their Law-givers did not at first rightly apprehend the true Nature of God nor did they study to explain that knowledge so far as they were able nor to frame their Government accordingly but past it over slightly as a thing of small moment Jamblicus also hath an excellent sentence out of Pythagoras That the knowledge of God is both Virtue Wisdom and perfect happiness Aristotle therefore placed Religion as the first and chiefest of all publick cares and as Justine Martyr calls it a work worthy of the care of all Kings and Machiavel himself assigns the prosperity of the Romans to their singular care of Religion De Creat Magistrat Philo seems to summ up the whole Duty of a King in these three particulars The Care of his own Estate the Care of the Publick and the Care of Religion All which are to be considered not only as in some one particular City or Kingdom in which respect it is true what Cyrus in Xenophon testifies of his Subjects that they were Tanto sibi addictiores quanto Dei erant metuentiores The more Religious they were the more loyal and obedient they were to their lawfull Magistrates but they are to be considered in respect of the preservation of the common safety of all mankind Lib. 1. de Nat. deor For as Cicero notes Take away Religion and all faithfull dealings between Man and Man Nation and Nation and consequently all Humane Society and one of the four Cardinal Virtues Justice will be quite lost whereby it clearly appears that Epicurus When he denied the Divine Providence Justitiae quoque nihil reliquit praeter inane nomen Left nothing to Justice but an empty name which saith he as it ariseth only from contracts and agreements so it is no longer in force than it yields profit to both parties Herein saith Seneca we cannot agree with Epicurus who holds that nothing is naturally Just and that offences are to be avoided because they being committed we cannot avoid fear As if nothing could restrain us from injuring others but the fear of punishment only Again it is very true what Aristotle observe That as Religion keeps Subjects in due obedience to Kings so it restrains the Tyranny of Princes and begets a great deal of Trust and Confidence between them and their people The Prince may be assured of his Subjects Loyalty and the people will less fear to suffer unjustly by their Prince whom they believe to be Religious Lib. 9. de placitis Hip. Plat. Galen observing many questions handled by Hippocrates and Plato concerning the World and the Divine Nature which as to the meliorating of mens manners he conceived to be very impertinent yet confesseth that of the Divine Providence to be of great efficacy and importance to the advancement of Virtues both private and publick which blind Homer could very well see as we may collect from the sixth and ninth of his Odysses where to men that were unjust and cruel he opposeth such whose minds were seasoned with Religion Justine out of Trogus highly commends the Justice of the Ancient Jews as being throughly tempered with Religion and Philo in the Life of Abraham makes our love of God and our love of men to be congeneal and as it were twins of the same birth For as Lactantius rightly inferrs If to know God be true piety Lib. 5. and the principal end of this knowledge be to worship him then he that hath no knowledge of God is likewise ignorant of true Justice For how can he be said to know Justice who is ignorant from whence she comes Now Religion is of more use and greater necessity in the common Society of Nations than in the Civil Society of Men Because in this Civil Society the defect of Religion may in part be supplied by severe Laws and the easie execution of them but the Laws of Nations as they are but few so are they very difficultly executed namely by War wherefore these Laws have alwayes been held sacred because God himself is the sole and immediate Judge of them and he that violates these Laws is said to sin against God himself The injuries then that are done against Religion are by all Emperours reputed as common injuries done as it were against all mankind XLV What are the common Notions concerning God exprest in the four first Commandments But that we may pierce a little deeper into this matter we must observe That the true Religion that hath been universally profest in all Ages and in almost all places stands erected on these four Columns First the acknowledgâ—ment that there is a God and that he is but One. Secondly That nothing of all these things we see is God but that he is something that is yet more sublime and excellent Thiâ—dly That God takes care of Humane Affairs and that he doth judge the world righteously And fourthly That he is the Creator of all Things without himself Which four Propositions are explained in the four first Precepts of the Decalogue The first whereof shews the Unity of the Deity plainly The Lord our God is one God The second declares his Invisibility which is the reason that as we cannot liken him to any thing so we cannot make any likeness or representation of him Deut. 4.10 Thus much doth Antisthenes testifie of him No eye ever saw him no likeness we have of him wherefore it is impossible by any Image or resemblance to know him And so doth King Agrippa in Plato To frame the likeness of that either by graving or painting which cannot be seen is profane and ungodly The like we read in Dion neither had the Jews any Image in Jerusalem because they thought that God could neither be seen nor be by any words described Diodorus speaking of Moses saith That he ordained no Image because he did not believe God to be of humane shape And Tacitus commends the Jews for adoring one only God and him in their minds only and condemns them as profane Dion lib. 36. that worship the immortal and invisible God in Images made of Wood and Stone in humane form Plutarch also gives this as the reason why Numa purged the Temple from Images Because it was impossible any other ways to comprehend the Deity than by the mind only By the third Commandment we are instructed to acknowledge Gods Omniscience which extends to our most retired thoughts and the care he hath of Humane Affairs for upon this foundation are Oaths built wherein he is invoked as a witness only if we speak truth but if we deceive then as a Judge and avenger whereby also both his Justice and his Omnipotency are at once acknowledged Lastly That God Created the whole frame of Nature and gave Being to all things is confest by the fourth Commandment in perpetual memory whereof
but the fruits of our own choice Nor that of Lysias There is no man willingly unfortunate But when a man is made miserable either by the undeserved malice of an enemy or by some secret fate or some misfortune which could not be foreseen then protection by foreign Princes is a debt due to the frailty and inconstancy of our Humane Condition It was a sanction of the wisest Law that ever was Deut. 19.1 23.15 Exod. 21.14 1 King 2.29 2 King 11.13 That he that had accidentally slain a man whom he hated not in times past should fly to one of the five Cities of Refuge and there be safe Because that act as to the irregularity of it had not the consent of the Will so that it was not so properly his sin as his misfortune whereas the very Horns of the Altar could not secure him who out of premeditated malice had slain an innocent person or who out of an affectation of Soveraignty and Dominion did attempt an innovation in the State which Law Philo explaining saith Profanis in fanum nullum esse receptum That no sanctuary can give protection to such unsanctified persons Quaest Graec. 32. The like provision we find to have been in use amongst the Ancient Grecians as Plutarch testifies The Chalcidenses refused to deliver up Nauplius to the Grecians and the reason is given because he had sufficiently cleared himself of the Crimes they objected against him The like we may read of in this latter Age for King Pepin did receive into his protection and refused to deliver up such as being tyrannically opprest fled out of Normandy unto him Yea and the Emperour Ludovicus Pius received those that fled unto him even from the Church of Rome as may appear by his Decree made in the year 817 and inserted in the second Tome of the Gallican Councils c. Cicero Pomponius and others relate That there was in Athens an Altar called Ara Misericordiae The Altar of Mercy which the calamitous have sacred made saith the Poet and a little after Where th' exil'd and the vanquisht seek for rest And Kings of their own Kingdoms dispossest That is all that were unfortunately distrest The City Athens as Aristides tells us was of all other Cities the most ready to protect strangers and such as were through misfortune miserable And elsewhere This in that age was the common Port or Haven wherein all the wrecks of fortune put in and found relief from what part of the world and for what causes soever they were distressed hither they came and here they found succour and protection The like Encomium Mariana gives of Arragon The Gepidae chose rather universally to perish Lib. 20. c. 13. as Procopius informs us than to deliver up Ildigisales either to the Romans Goth. 4. or to the Lombards Sophocles in one of his Tragedies brings in Oedipus supplicating the Athenians in these words Ah! men of Athens I have suffered much Suffer'd indeed for God my witness is That knowingly I have not done amiss And Theseus answering him thus Such Guests as thee at all times to defend O Oedipus repent I never can Till I forget my self to be a man And yet as highly as these Athenians delighted to protect their suppliants whom fortune and not wilfulness had made miserable they would not protect a known malefactor nor give that to Vice that was due only to Innocence witness that in the same Tragedy Hunc qui facinorum conscius nec legibus Fidens ad aras volvitur supplex Deûm Trahere ad tribunal nulla relligio mihi Mala semper aequum ferre qui fecit male From sacred Altars who to judgment draws A guilty Traytor that distrusts the Laws Doth nothing impious for just it is That he should suffer who hath done amiss So the same Poet elsewhere Non enim tangi decet Manu nocente numina at justum fuit Piis patere templa contra injurias With hands impure the Gods to supplicate Indecent is yet should the Temple gate Stand open for th' opprest to enter at Lycurgus the Orator relates a story of one Calistratus who having committed some hainous crime and consulting the Oracle about his safety received this answer That if he would fly to Athens he should have right done him In hopes of impunity he betakes himself to that Altar in Athens which was held the most sacred yet even from thence he was taken and put to death So also was Ferdinand Lord High Chamberlain of Portugal forced from the Altar Lib. 21. and burnt for ravishing a Noble Virgin as Mariana records So religiously did they distinguish between such as were criminous and such as were unfortunate Tacitus condemns some of the Grecian Cities of superstition who thought their Gods to be pleased with their protecting of Malefactors Princes saith he are like Gods for neither do the Gods themselves answer the supplications of the wicked Ann. lib. 3. and in another place he assures us Neque à diis nisi justas supplicum preces audiri That the Gods never heard the supplications of men unless they were just Such then as are notoriously faulty are either to be delivered up punished or at least banished out of their Dominions from whom they are demanded Lib. 1. Thus did the Cymaei in Herodotus who though they would not deliver up Pactyes the Persian whom notwithstanding they durst not keep yet chose that which was safest to both which was to suffer him to fly to Mitylene Thus Perseus King of Macedon in his Apology to Martius concerning those that had betrayed Eumenes pleads thus As soon as upon your information I found these men in Macedon I commanded them forthwith to depart my Kingdom and have for ever interdicted them my Dominions Thus did Queen Elizabeth answer the Scots who demanded Bothwell Camden An. 1593. That she was ready either to deliver him up or to banish him out of England Yet do the European Princes in most places at this day and in the age last past connive at one another for the reception of Malefactors unless they be such as disturb the publick peace or that are guilty of some egregious crimes for lesser crimes they usually pass by unless they are directly excepted against in the Articles of any League as it was in that made between England and France wherein it was agreed That Rebels and Fugitives should be delivered up And in that made with the Burgundians wherein it was provided that all such should be expelled as Camden testifies Anno 1600. However this is worth our observation That notorious Thieves and Pirates when through long and prosperous successes they are become formidable to their Neighbours may be protected as from punishment because it conduceth much to the common safety to withdraw such persons from their wicked practices by hopes of Indemnity in case it cannot otherwise be done this therefore any Prince or People may undertake to do VI. Yet may
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
of the Law do not observe it although haply that Law be promulgated and time of it self sufficient allowed for the knowledge thereof As also in such as go to Law both Parties may be free not from injustice only Nemo debet jus suum indiscussum relinquere Tentanda sunt quaecunque tantum sunt Baldus but from any thing else that is blameable especially when both or either of them contend not in the behalf of themselves but of others as a Tutor for his Pupil a Guardian for his Ward whose Right he is bound in duty to defend though that Right be but uncertain So in a wager at Law two persons may contend for one and the same thing and yet neither of them be unjust So also a Councellor may plead for either of them without the least derogation to his honesty Again when something that is very profitable stands in opposition to what is honest it is no easie matter to tell whether of them to follow When we first entred into War with Niger saith Severus the Emperour there was I confess no very plausible pretence for War but the Empire lay at stake between us and both of us strove which should appropriate it to himself Herodian Nay as Aristotle well notes to say of a Judge that he judgeth right is but an Ambiguous speech for it may signifie either that he judgeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plainly as he ought without any ignorance or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to the best of his knowledge or the clearest evidence that is brought before him And therefore the sentence which must pass according to that evidence may be through mis-information unjust and yet the Judge that passeth that sentence may be righteous * Si dubium sit à qua parte stet justitia hanc si utraque pars quaerit injusta esse neutra possit If it be doubtful on what side the Right stands if both Parties contend for it it is probable that neither doth unjustly The Jews made War against the Canaanites justly being so commanded by God and the Canaanites being ignorant of that charge given against them did justly in defending themselves wherefore that War was on both sides just Thus Pope Pius the second answered the Hungarian Embassador that complained against the Emperour namely He thought that the King of Hungary did intend nothing dishonestly and he knew that the Emperour was a great lover of justice But both contending for the Kingdom probable it was that neither of them thought his Cause unjust In disceptationibus fori par est litigantis utriusque jus donec lata est pro altero eorum sententia In all controversies this is found true but especially in War that both Parties pretend to maintain a Cause that is just But in War it is hardly possible that either party should be in that sense just that is free from all blame by reason of that great defect of love and that overmuch rashness that for the most part inseparably accompanies it besides the weightiness of the business it self which is such as being not satisfied with probabilities strictly requires such proofs as are demonstrative and convincing But if we account that to be just which is permitted to enjoy some effects of Right it is most certain According to the effects of right War may be on both sides just that War in this sense may be on both sides just as will appear anon when we come to treat of a publick solemn War for so both a sentence though not rightly past and a possession not rightly gained have both of them some effects of that which is right CHAP. XXIV War though Just not to be undertaken rashly I. It it better sometimes to remit our own Right than to engage in a doubtfull War II. But especially when undertaken to exact punishment III. And chiefly by a King that is injured IV. And that sometimes for his own and his Subjects safety V. Certain Rules guiding us to a prudent choice of things apparently good VI. An example whereby we may be guided in our endeavours after liberty or peace whereby the miseries of War may be prevented VII Punishment not to be exacted by War unless by the most potent party VIII War not to be undertaken unless compelled by necessity IX Or when we have some very great Cause together with some notable advantage X. The miseries of War lively described I. Better sometimes to forego our right than to make War for it THough it be not properly pertinent to our purpose in treating only of the Rights of War to shew how far other Virtues do either enjoyn or perswade thereunto yet will it not be altogether impertinent for preventing of mistakes to give some cautions about it lest any man should think that whensoever he hath a Just Cause offered him he is bound to make War or at least that it is at all times lawfull for him so to do whereas on the contrary it is for the most part much more pious to remit somewhat of our Right than to endeavour to defend it by a dangerous War We Christians are especially taught to expose our own lives to the greatest perils that can be to preserve the lives and as much as in us lies to procure the everlasting welfare of others in imitation of our great Lord and Master who laid down his own life to save ours even then when we were strangers nay enemies unto him Rom. 5.6 How much more reason have we to forbear the prosecution of our Just Rights when they cannot be obtained without the effusion of so much Christian blood and the destruction of so many mens Lives and Estates Pol. lib. 4. Rhet. ad Alex. c. 3. besides other mischiefs which War usually brings with it This we are forewarn'd of by Aristotle and also by Polybius not for every such cause to run the hazard of a War For the necessary defence of our Liberties our Wives and Children we may lawfully make War saith Gallio in Seneca but not for such things as are either superfluous or being lost Suasoria 5. Philostratus lib. 23. do not much damnifie us This and somewhat more did Apollonius say to the King of Babylon We are not to contend with the Romans for a few small Villages which many of our Ancestors being but private men did enjoy They must be great matters indeed that should so far provoke us Adv. Apion de popul suis as to undertake a War especially with such potent enemies The like Josephus testifies of his Countrey men It is not our custom to muster up our Forces or to make War to enlarge our Dominions but for the defence of our Laws All other losses we can bear with patience but being debar'd the use of our Religion we undertake War beyond our strength and prosecute them to the utmost of dangers It was prudently advised by Dion Prusaeensis in his Oration concerning War and Peace We are
to be lamented whosoever therefore shall with any remorse consider those so great so horrid and so direful effects of War cannot but confess that it is miserable but he that can feel them or think upon them without sorrow much more he that can glory in the success of them Ideo se putat beatum quia humanum perdidit sensum Therefore thinks himself happy because he hath lost all sentiments of humanity So the same Father in another place tells us that Id de Civit Dei lib. 4. c. 15. Belligerare malis videtur felicitas bonis necessitas Good men make War their refuge but wicked men make it their delight And were there nothing of injustice in the War yet to be enforced unto it that is in it self miserable saith Maximus Tyrius whereunto he adds Wise men never make War but by constraint whereas fools fight for pleasure and gain Lib. 13. The Lacedemonians in Diodorus considering those great enmities and animosities likely to arise from War thought themselves bound in duty to declare before the Gods and unto all good men that they were not the Authors of it Plutarch brings in some making this objection But hath not Rome much improved her self by War Whereunto he answers 'T is true indeed she hath so in the opinion of those who place their greatest glory in Riches in Pleasure Wantonness and Martial Power which are but the dregs of Honour but not in theirs who place their glory in the safety of their People in meekness justice and contentation It was therefore worthily said of Stephanus the Phiysician unto Cosroes King of Persia To thee O King who art wholly conversant in blood and slaughter in subduing Kingdoms and depopulation Cities other glorious attributes may be due but surely thou canst never hope by these ways to be esteemed good for as no good man will greedily covet that which is anothers so Non est homini homine prodigè utendum as Seneca tells us Aelian lib. 14. c. 2. It is no point of Honour to be prodigal of humane Blood Philiscus advised Alexander to be emulous of Glory but not by making himself like unto a Plague in depopulating Cities and laying whole Kingdoms wast Nothing can add more Glory to a King than to provide for the safety of his Subjects that they may live in Peace Nat. Hist l. 7. c. 25. Pliny after he had recounted so many famous Battels gained by the Dictator C. Caesar wherein were slain as he there computes Eleven hundred Ninety two thousand men adds this I do not reckon it as any part of his Glory to have done so great wrong to mankind however provoked Philo in the life of Moses observes That though the killing of Enemies in War were by the Laws permitted yet whosoever did kill a man though justly though in his own defence though compelled thereunto against his will did notwithstanding contract some guilt unto himself in respect of that common kindred and alliance between man and man which was derived from the supreme Cause wherefore expiations and purgations were thought necessary to cleanse them from that crime which seemed to be committed by them If then by the Hebrew Laws He that killed a man though against his will Pollutus esset hostili quidem attamen sanguine was to betake himself to one of the Cities of refuge And if God would not permit David to build him a Temple because he was a man of blood though of his enemies that is as Josephus writes because he had made many Wars which by the Law was permitted If among the Ancient Greeks he that had slain a man though accidentally Lib. 7. cap. 4. or in defence of himself had need of expiation Who cannot see how unhappy a thing it is and by all means to be avoided voluntarily to engage our selves in a War though haply not unjust Surely among the Greek Churches that most Christian Canon was long in force whereby he that in what War soever had slain a man though an enemy was not by the space of three years admitted unto the Sacrament CHAP. XXV For what Causes a War may be undertaken for others I. That a War may justly be undertaken by a Prince for his Subjects II. But yet it is not always to be so undertaken III. Whether an innocent Subject may be delivered up to an enemy to prevent a War IV. That a War may justly be undertaken in the behalf of our Confederates equal or unequal V. As also for our Friends VI. Yea and for any man VII Yet may it also be omitted without blame if it endanger himself or cannot be done without the death of the invader VIII Whether that War be just that is made to relieve another mans Subjects this explained by a distinction IX All those military consociations and mercenary succours that respect not the equity of the Cause are unjust X. To engage in War for spoil or pay only is wicked I. A Prince may justly make War for his Subjects ABove when we treated of such persons as had a Right to make War it was said and shewed That naturally every man had a power to vindicate not only his own but the right of another †See lib. 1. c. 5. wherefore look what Causes do justifie a War undertaken for our selves the very same do justifie a War made for another But our principal and most necessary care should be for our own Subjects whether they be our Domesticks or such as live under our Civil Government for they are a part of the Governour as we there shewed Josh 10.6 Persicor 2. Thus Joshua we read made War in defence of the Gibeonites who had yielded themselves unto him It is not sufficient to denominate a Man Just that he wrongs no man saith Procopius unless he also be carefull to protect those from injuries who for that very end have put themselves under him Our Ancestors saith Cicero to the Roman Senate did often make Wars in the behalf of their Merchants and Mariners when they have been abused by Strangers Verr. 2. And in another place How many Wars saith he did our forefathers undertake to revenge the wrongs done to the Citizens of Rome when their Seamen have been imprisoned and their Merchants spoiled Yea and the very same Romans who refused to take Arms in the defence of a People that were their Confederates thought it necessary to defend the same People when they had surrendred themselves and so became their Subjects Thus do the Campanes bespeak the Romans Though ye refused to assist or defend us against our enemies whilst we were your Friends and Confederates yet now that we are your Subjects you will certainly protect us Whereupon Florus saith That the Campanes made that League which they had formerly contracted with the Romans more strong and inviolable by their voluntary surrender of all they had unto them for it agreed not with the Faith of the Romans
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
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
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
page 99 The Agent unjust when the thing done is just and so on the contrary page 414 415 Agreements what are real and what personal 194 195. made by Generals to be understood strictly page 565 Agreements equal to be accounted real grievous if in doubt personal page 195 Agreements between Generals how they may bind their Sovereigns page 563 Aids when said to be sent 558. to send who excused page 198 Aids being promised on one side only are presumed to be at his charge that demands them page 193 Alexander called a Robber or Pyrate page 70 Algerines Pyrates page 493 Alienation its Rights what naturally required to it 118. it may be made two ways by commutation and by succession 122. the whole cannot alienate its parts without consent page 118 119 To Alienation some requisites are merely from the Civil Law page 120 Aliment in what sense due to our Children page 123 Altar of mercy at Athens page 397 Alteration of Government none without violent Commotions page 66 67 Anothers what is may be with-held to prevent danger to us page 434 For Another's Debt none bound naturally but the Heir page 403 404 446 When Another's Goods may be taken for a just Debt page 122 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 499 Ambition emblem'd by Babel which caused dispersion page 79 Ambition of a Neighbour Prince to restrain no ground of War page 100 Ammunition for War no lawful prize in France 1543. page 436 Amphibologies frequently used by Christ 441 in some Cases commendable in others impious ibid. in Amphibologies if our intentions agree with either sense though misunderstood it is no lye 440. not to be used in sworn Leagues page 190 Ambassadours see Embassadours 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in force among the Athenians page 447 Anger what page 364 Animals to all Nature hath given Arms page 12 Antiochus whether an Vsurper page 60 Apostles their power whether of Divine Institution 408. some of them travelled with swords page 33 Against Apostates the Israelites might take Armes page 185 Apple-tree full of Fruit so left in the midst of a Camp page 532 533 Aptitude distinguisht from Right strictly taken 201. it confers no Right ibid. Arbiters either Moderators or Judges 552. in Cases dubious tied up to Law 553. not to meddle with Possessions ibid. succession if in doubt to be referred to them page 131 By Arbitrement War sometimes ended 552. a safe way to end Controversies between Princes page 412 413 Arcifinious Lands page 94 Arguments on both sides equal to whether to incline 411. which in Morals are best page 412 Armes not to be used but against Arms 504. not capable of Postliminy and why page 492 An Army when destroyed 142. what numbers make an Army page 191 The word Armes what it signifies page 192 The Armes and Colours of an Enemy to use lawful page 440 The word Art how understood page 191 Articles of Peace ought to be strictly kept 536. they oblige all alike 549 550. the violation of any one breaks the whole ibid. how they are to be understood a General Rule page 546 Articles of Peace being made known whether they bind the King in Case of silence page 188 Articles of Peace broken through necessity how taken page 550 The Asian Custom of dividing the Spoil 474. their Kings Absolute Monarchs page 47 The Assertion of things to come how valid 151. in what different from a Promise page 444 Associates one may compel another to keep the League 50. under the name of Associates who are meant they only at present or they to come page 193 Associates ought to do each other Right their Subjects being accused page 49 Associates when to be defended 424. when they partake of the Spoil page 478 Associates being invaded when the Peace is broken page 549 Associates in an unjust War obliged to damages and sometimes to punishments 434. how the Controversies between them are to be adjudged page 50 Associates sometimes oppressed by Associates page 51 Of Associates which is to be preferred page 187 Associates not named in the League to aid them breaks not the League page 193 Assassinating of a Prince though our Enemy privately not allowed by the Law of Nations page 462 463 Atheists and such as deny Gods Providence to be persecuted in the name and behalf of humane Society page 388 389 At Athens all that were unfortunately miserable found protection page 398 The Athenian Government Democratical the Lacedemonian Aristocratical and accordingly the Conquered Cities formed their Government page 526 Authors of War sometimes excusable 502 503. if it proceeded not from hatred but seduction page 12 13 The Authors and Leaders punished severely the rest threatned but not punished page 501 502 B. BAlneary Thieves page 382 Baltick Sea how far the Emperor's page 138 Banished not subject to the power of their City page 115 Barbarians unjustly accounted Enemies by the Grecians page 407 The Bargain naturally good from the time of the Contract but if twice sold his Title is best that gets the first possession page 161 Barklay's Opinion concerning resistance of the Supreme Power in some Cases page 60 63 64 Bastards their Rights 124. sometimes made Legitimate and how ibid. sometimes admitted to succeed 125. the Roman Laws made no provision for them nor Solons 123. the Canon Law provides necessaries for life only ibid. Of Battel the time and place appointed page 454 Bees what 's good for the Hive is good for the Bees Pref. viii Beasts their outrage whether to be imputed to their Masters 204. from them some moral duties may be learnt Pref. iii iv not capable of Laws 6. justice improperly attributed to them ibid. yet some resemblance they have of it ibid. killed not by way of punishment but by our right of Dominion page 401 Beasts do some of them abhor unnatural coitions 108. to all God hath given some Armes page 12 Beasts-wild Birds Fish are naturally theirs that take them page 81 Benefactors in our Testaments first to be gratified and then Friends obliged page 162 Benefits publick preferred before private page 55 56 Benefits some due even to the wicked by us Christians 184. given by Kings if to the publick damage are not only to be revoked but made void 179. given by Kings whether to last longer than their lives ibid. Benjamites their controversie with the Israelites page 169 Bigamy page 105 106. Bituitus betrayed by a pretence of Parly page 569 Bishops office when opposed to Kings 408. they may advise but not compel page 409 Bodies politick and natural their difference page 117 118 Bounds of Kingdoms if doubted are presumed to be Arcifinious 137. 138. they change not though the River changeth page 95 Bonum aequum i. e. the mere Right of Nature page 208 The Brabantine Law concerning the Children by a second marriage page 125 Brethren coming from one common stock are almost one and the same page 126 Brother kills his Brother in the head of his Enemies Troops and
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
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
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
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
to our Ancestors for them it remains that the succession should pass to him that was dearest to the person deceased which is presumed to be his nearest Kinsman who is as it were his own Flesh Prov. 11.17 or his Brother Deut. 15.11 For our love to our kindred should be proportionable to the nearness they are unto us in blood so that after our Parents they are best to be provided for who are by nature in the nearest relation unto them And therefore among the Grecians as Isaeus tells us The Goods of the deceased did alwayes descend unto the next of kin Whereunto he adds What can be more just than that the estate that was a kinsmans should descend unto a kinsman How well would this conserve Humane Society saith Cicero and promote the honour of private Families if the nearer any man were allyed unto us so much the more benign and bountiful we would be unto him Next unto our children the same Cicero placeth our loving kindred who as they are nearest so ought they to be dearest unto us and to provide for these especially is a debt that we owe them not by Commutative Justice but by Distributive as being most worthy for the honour that is due unto our own blood And therefore the same Cicero speaking elsewhere of that natural affection which every man bears to his own Relations tells us That from thence ariseth the Testaments and Legacies of dying men It being much more equitable to leave our estates to our own kindred than unto strangers This is the Charity that is most acceptable to God Esay 58.7 De Off. l. 1. c. 30. as Esay tells us To feed the hungry to clothe the naked and that we hide not our selves from our own flesh And St. Ambrose highly commends that liberality that is shewn to our brethren and kinsfolks as being next in blood to us Now that succession that thus descends from a person dying Intestate is but as it were a silent Testament which the Laws of Nature and Nations make Authentick by guessing at the will of the deceased Thus Quintilian also Next unto them who claim a Right by the Testators Testament are his kindred in case he dye Intestate and Childless not because the Goods of the deceased are in Justice due unto them but because being deserted and as it were left without any certain Owner none can pretend so much right to them as they being the next of kin And what hath been said of Goods newly purchased by the person dying Intestate That they naturally descend to his nearest Relation may as truly be said of such Goods as descend unto him from his Father or Grand-father in case neither they from whom they descended nor any of their children do survive to whom in point of Gratitude they should return XI Diversity of Laws as touching succession Now though what we have here said be most agreeable to Natural Conjectures yet are they not by the Law of Nature necessary wherefore from divers causes moving mens wills successions do usually vary according to the diversity of Agreements Laws or Customs rationally grounded some whereof will admit of substitution in some degrees others not The Ancient Germans were altogether ignorant of that kind of succession which we call Representative even among their children as that the Eldest Brothers Son should succeed in the room of his deceased Father which Right first took place in France by an Edict of Childebert and was first introduced into those parts beyond the Rhine by Otho So the Ancient Scottish Right of succession went according to the sole proximity in blood Pontanus 7. Danicor and not by substitution it being so decreed by the King of England who was chosen as Arbiter to decide that difference In some places regard is had to the first Purchaser in others this is neglected There are some Countreys where the first-born carries away the greatest part of the estate as among the Hebrews but in some others all the Children share alike In some the kindred by the Fathers side only succeed in others those by the Mothers have an equal portion In some regard is had to the Sex in others none at all In some the kinsfolks in the next degree only are admitted in others they admit those in degrees more remote To trace all would be tedious neither is it my purpose so to do But this we must grant That where the deceased hath declared nothing of his Will it must be presumed that the Estate should pass as the Law or Custome of the place doth order it but not so much by the power of the Empire as by the force of this Conjecture which also takes place against those in whom the Supream Power resides For it is very probable that what they by their Laws command or by their Customs approve of in their Subjects the same in their own affairs they hold to be most Equitable so as no great damage ariseth to them by it XII How succession to Kingdoms patrimonial ought to be guided Daughters capable to succeed in Egypt and Britain As concerning the Succession to Kingdoms we must distinguish between those that are Patrimonial and in a full and absolute manner possest and those that are held in such a manner as pleaseth the People The former sort may be divided even between the Sons and Daughters as in the Kingdoms of Egypt as Lucan testifies Nullo discrimine Sexus Reginam scit ferre Pharos In Aegypts Throne Difference of Sexes there is none The like doth Tacitus record of the Brittish Empire In Asia after Semiramis Neque enim Sexum in Imperiis discernunt Tac. many Women were permitted to Reign saith Arrianus as Nitocris in Babylon Artimissa in Halicarnassus and Tomyris amongst the Scythians yea and such Kingdoms may be divided as in Asia all the Brothers Reign together though one only hath a principal Right to the Crown which Custome the Empress Irene would without any precedent have introduced into the Constantinopolitan Empire in the Reign of Andronicus Palaeologus as Gregoras notes That saith he which is most strange and to be admired was That she was not willing Lib. 7. that any one should obtain the whole according to the Ancient Custome of that Empire but according to the Examples of the Western Princes the Cities and Regions should be divided amongst her Sons that so each of them might hold his Kingdom as his Patrimony just as the estates of private men are divided among their children so that each part of the Empire should descend perpetually to each of her Sons and to their Heirs after them For being her self of a Western Extraction she indeavoured to introduce their Custom without example Neither are adopted Sons less capable of Succession by guessing as the Will of the Intestate than true Sons Thus did Hyllus the Son of Hercules succeed to Aepalius King of the Locrians by Adoption Strab. l. 9. as also did Molossus the Bastard in the
may have 482 483. to make is due by the Law of Nature 120. they may be made by Strangers by the Right of Nature ibid. By Testaments Kingdoms Patrimonial may be bequeathed but others not but by the Peoples consent page 43 44 To hinder a man from making his Testament obligeth to satisfaction page 201 Thebaean Legion page 62 93 428 Theseus the Scourge of Wickedness page 384 Theft prohibited by the Law of Nature 5. in extreme necessity lawful with some Conditions 81 82. nocturnal and diurnal the different punishments and why 74 75. against it severe Laws sometimes mitigated through Charity page 75 76 It is Theft to require more or give less in measure weight or number than was contracted for page 160 Theft not punishable by death by the Mosaical Law 76. nor by the Civil Law is approved though tolerated ibid. A Thief nocturnal may be killed in what Case 32 75. to kill whether the Civil Laws do only tolerate or justifie page 76 Thieves live not without Laws Pref. ix and Pirates have no Right of Embassages page 206 No Theft to spend somewhat of anothers to procure him a greater profit page 442 Things thus standing how and when understood 151. stolen lose not their property 97. that have no Owner the Germans give their Prince 135. given as lost cease to be ours 98. taken from an Enemy are theirs that take them though first taken from friends 470 471. taken in a just War how far ours by the Law of Nature 468. moving and moveable taken by private acts in a just War are lawful prize 472 473. useless in War may be spared 514. sacred and religious received by Postliminy 492. not the Enemies not gained by War 470 c. to defend justifies interfection naturally 74. how far lawful by the Gospel 75. twice sold whose Right is best page 161 Things to restore taken for any satisfaction as things to take away understood for any injury 456. lose not their Dominion till within the Enemies Garrisons 492. of Enemies to spoil how far lawful page 411 Time out of mind what 99. long out of possession of what force to prove dereliction page 98 Time and place of Battel alway proclaimed page 445 Titles none to be set on foot after four ages 99 100. to Empires should be fixt 99. originally naught cannot by any Postact be made good how understood page 100 101 Tolls for importation of Goods in what cases lawful 84 85. for passing Rivers and Bridges ibid. by Sea may be lawfully taken page 93 To Traffick a Right common to all 86 it unites Countries remote ibid. to hinder it with such Nations unjust page 84 In Traffick by Companies how the gain is divided page 164 Traytors have no Right of Embassies 206. against such and publick Enemies every man is a Souldier 65 374. to kill not punishable by the Law of Nature page 462 463 Of Treason against our Country the danger not past a Son may accuse his own Father page 209 To Treason the next degree is to harbour Traitors page 396 Travellers may for a while reside in any place page 85 Treasures found whose it is 136. the publick not toucht by Mark Antony without the consent of the Senate page 59 Treachery against Robbers and Pyrates when and why not punishable 463. in a solemn War lawful unless by Poyson or private Assasinatinn page 462 Tree of Life what it signified and of knowledge of good and evil page 79 Tribunals wanting the Law of Nature takes place page 122 Tribunes how made inviolable page 539 Tributes and Taxes due to Kings 3. to maintain Souldiers page 20 Tributary Associates page 57 Trifles not worth contending for page 21 22 23 Truce what a Time of Peace or War 557. when it begins to oblige and when it ends 558 559 broken on one side or ending needs no indiction of War 558 560. continuing no place to be surprized nor received that would revolt 559. what may â—awfully be done within that time 559 560. it may be made by inferiour Commanders 565. being ended whether they that were forceably detained during it have a Right to return page 559 Truths some easily assented unto others not but by three or four consequences page 385 Truth the same spoken or sworn page 175 Truth only to be spoken in Markets page 441 Tyrants worse than Hangmen 426. their scourge Hercules 384 with them Faith to be kept if given as to such page 537 538 V. VAlentinian's answer to his Army page 40 Valor cannot prevail against Nature nor dwell with Famine page 119 The Valerian Law in Rome distinguisht from Solons in Athens page 65 The Value of things from whence page 161 The Vanquished to be treated gently 527. which may be done either 1. by mixing them with the Conquerours 525. 2. by taking nothing from them but what disturbs Peace 524. 3. by leaving them their own Empire 525. excepting some strong Garrisons 526. 4. permitting their own Laws Magistrates Religion with caution for the true Religion 527. 5. by imposing some tribute on them 526. or some part of their Government page 525 Variety of manners occasioned by the various mixture of the Elements page 375 Venome to use unlawful in War page 461 462. See Poyson Veracity a Guide to all Vertues page 444 Vertues some require moderation of affection others not Pref. xvii what the Law enjoins the Gospel requires in a larger measure page 10 Vices what not to be punished 374. of things contracted for to be made known and why page 159 Victor who 552. his duty towards them that yield page 554 Victory disdained unless got by Manhood 445 sometimes the gift of fortune and not always the reward of Valour 504. being assured to waste things is madness 513. gained by fraud more honourable than that gained by force page 437 438 Virgins Milesian page 218 Virgins not to chuse themselves Husbands page 107 Visible what is not hath no certain Right page 100 That Universals have a power to oblige singulars 113. their Debts how far they bind their Members page 545 Unborn the Right defended by Law lost by prescription page 187 Uninhabited places are the First Occupants page 85 Unjust that is which is repugnant to humane Society page 2 Unjustly what is denyed may justly by War be taken page 86 Unjust if the War be what ever is done in it is internally unjust page 495 Unjust Wars are no better than great Robberies page 70 To do Unjust things and to do Unjustly how distinguisht page 428 429 Unlawful things none to be urged unto page 446 Untruth whereby a By-stander is deceived no Lye page 441 Unwillingly what is done deserves pardon page 500 Votes in a society where divers claim unequal shares how to be reckoned page 114 Usurpation what 97. of no force between Kings of divers Nations ibid. Use common its Authority in expounding Laws page 25 The Use of things Natural page 78 79 The Use of a thing consisting in abuse