the like What wast is just When not to be made THat one may destroy the Goods of another one of these three things is a necessary antecedent either such a necessity which ought to be understood excepted in the first institution of dominion as if one to avoid his danger throw away down the river a third man's sword which a mad man is about to use in which very case yet it is the truer opinion thâ—… there remains an obligation of repairing the loss or some debt proceeding 〈◊〉 inequality to wit that the thing wasted or lost may be reckoned for that debt as receiv'd for otherwise there were 〈◊〉 right or some evil desert whereto 〈◊〉 a punishment is meet or whose meaâ—… the punishment doth not exceed for 〈◊〉 a Divine of sound judgment rightly notes that for cartel driven a way or some houses 〈◊〉 a whole Kingdom should be laid wast is no equity which also Polybius saw who will have punishment in war not run on in infinitum but so far that Offenses may be in fit manner expiated And these causes truly and only within these bounds bring it to pass that there is no injury Notwithstanding unless the cause of Profit perswade it 's folly to hurt another without Good to himself Wise men therefore use to be mov'd by their own Interests The chief is that observed by Onesander Let him be sure to wast the Enemies Countrey to burn and populate for scarcity of money and fruits minishes war as much as plenty encreases it Wherewith agrees that of Proclus 'T is the part of a good General to cut off the enemies provisions on every side Curtius of Danius He supposed by want to overcome his enemy having nothing but what he got by rapine And that population truly is to be born with which doth in short time humble the enemy to a petition for Peace which kind of war Halyattes used upon the Milesians the Thracians upon the Byzantians the Romans upon the Campanians Carpenates Spaniards Ligures Nervians Menapians But if you rightly weigh the matter you shall find such things done more often out of hatred than prudence For most commonly 〈◊〉 happens that either those moving causes cease or other causes move the other way more strongly First 〈◊〉 his will come to pass if we our selves so possess a fruitful thing that it cannot bring any fruit to the enemies Whereunto properly that Law Divine hath respect which will have wild Trees bestowed upon works of war but the fruitful kept for food the cause being added that Trees cannot as Men do rise against us in a battell Which by similitude of reason Philo enlarged also to fruitful fields And Josephus upon the same place saith Trees if they had a voice would cry out that they do unjustly bear the punishments of war being not the causes of war Nor hath that of Pythagoras if I mistake not any other rise in Jamblichus Do not hurt nor cut up any mild and fruit-bearing Tree And Porphyry describing the manners of the Jews extends this Law custom as It hink in terpreting it even to beasts serving for Countrey-work For these also must be spared in war as Moses hath commanded But the Talmud-writings and the Hebrew Interpreters add that this Law is to be stretched to every thing which may perish without cause as if buildings be burnt things to be eaten and drank be corrupted Agreeable to this Law is the prudent moderation of Timotheus the Athenian Captain who as Polyaenus relates sufferd no house to be pull'd down nor fruit-tree to be cut up There is a Law of Plato in his fift De repub That no ground be wasted no house fired Much more will this have place after complete victory Cicero approves not the overthrow of Corinth though the Embassadors of the Romans were shamefully treated there and the same Cicero in another place saith it is a horrible nefarious odious War that is made with walls roofs pillars posts Livy praiseth the lenity of the Romans because having taken Capua they were not furious in firing and ruining the innocent walls and building Agamemnon in Seneca saith He was willing Troy should be conquerd not levell'd Indeed the sacred History tells us that some Cities were by God condemned to destruction and that against the former general Law the trees of the Moabites were commanded to be cut up But that was not done by hostile hatred but in just detestation of their Iniquities which were either publickly known or sentenc'd to such punishment by the Judgment of God himself Secondly That which we have said will also come to pass in a doubtful possession of a Countrey if there be great hope of a speedy victory whose reward will be both the Countrey and the fruit So the Great Alexander as Justin relates kept his soldiers from the population of Asia Bidding them spare their own and not spoil what they came to take possession of So Quintius when Philip spoiled Thessaly with a running Army exhorted his soldiers as Plutareh saith to march as through a Country granted them and now becom their own Craesus perswading Cyrus not to give up Lydia to be pillaged by his men tells him You will not spoil my City not my Goods For they are not mine now They are yours and the plundering soldiers prey upon you Thirdly it will be so if the enemy can have elswhere wherewith to support himself to wit if the Sea or another Country be open to him Archidamus in Thucydides in his oration wherein he dehorteth his Laecedemonius from a war upon the Athonians asketh what hopes they have Do you hope easily to lay wast the Attick fields by your 〈◊〉 Army Suppose you do Yet have they both other Lands under their command Thracia Ionia and the Sea brings them in all things necessary Wherfore in such a case it is best that agriculture also in the very frontiers be secured Which we have lately seen was long done in the Low Countrey Wars on condition of paying Contribution to both sides And that is consentaneous to the old custom of the Indians among whom as Diodorus Siculus saith The Husbandmen are untoucht and as it were sacred yea nigh to the Camps and Troops they do their work without danger He addes They neither burn the Enemies fields nor cut up the trees After No Soldier doth any wrong to any Husbandman but that kind of men labouring for the common good is protected from all injuries And between Cyrus and the Assyrian was an Agreement saith Xenophon That they should have Peace with the Plough-man war with the Soldier So Timotheus let out to Husbandmen the most fruitful part of the land as Polyaenus saith Yea as Aristotle addes he sold the fruits themselves to the enemy and paid his soldiers with the money Which Appian testifies was done in Spain by Viriatus And the very same in the Belgic
it could not be foreseen whether they would prove evill men and besides it cannot be avoided but we must imploy such otherwise no Army can be raised Neither are Kings to be accused if their soldiers either by land or sea wrong their confederates contrary to their command as appears by the testimonies of France and England Now that any one without any fault of his own should be engaged by the fact of his Ministers is not a point of the Law of Nations by which this controversy is to be judged but of the Civil Law nor this general but introduc'd upon peculiar reasons against seafaring men and some others And on this side sentence was given by the Judges of the supreme Auditory against certain Pomeranians and that after the example of things iudged in a case not unlike two Ages before LXIV Of the right of Embassages AMong the Obligations which that Law of Nations which we call voluntary hath by it self introduced a principal head is of the right of Embassages For we frequently read of the sacred privileges of Embassages the sanctimony of Embassadors the right of Nations right divine and human due unto them and many such like expressions Cicero de Haruspicum responsis My judgment is that the right of Embassadors is secured both by the safeguard of men and also by the protection of Law divine Therefore to violate this is not only unjust but impious too by the confession of all saith Philip in his epistle to the Athenians LXV Among whom the right of Embassages hath place HEre we must know whatever this right of Nations be it pertains to those Legats which are sent from supreme Rulers by one to another For besides them Provincial Legats and Municipal and others are directed not by the Law of Nations which is between one Nation and another but by the Civil Law An Embassador in Livy calls himself the publike messenger of the Roman people In the same Livy elswhere the Roman Senat saith The right of Legation was provided for a foreiner not a Citizen And Cicero that he may shew Legats are not to be sent to Antonius saith For we have not to do with Annibal an enemy of the Commonwealth but with one of our own Country Who are to be accounted foreiners Virgil hath so expressed that none of the Lawyers can more clearly That I suppose a forein Land Which is not under our Command They then that are joind in an unequal league because they cease not to be in their own power have a right of Legation and these also who are partly subject partly not for that part wherein they are not subject But Kings conquerd in a solemn war and deprived of their Kingdom with other Royalties have loft also the right of Legation Therefore did P. Aemilius detein the Heralds of Perseus whom he had conquer'd Yet in Civil wars necessity sometimes maketh place for this right beside the rule as when the people is so divided into equal parts that it is doubtfull on which side the right of Empyre lyeth or when the right being much controverted two contend about succession into the Throne For in this case one Nation is for the time reckoned as two So Tacitus charged the Flavians that in the Civil rage they had violated in respect of the Vitellians that right of Legats which is sacred even amongst forein Nations Pirats and Robbers that make not a Society cannot have any succour from the Law of Nations Tiberius when Tacfarinas had sene Legats to him was displeas'd that a traitour and plunderer us'd the manner of an enemy as Tacitus hath it Nevertheless sometimes such men faith being given them obtain the right of Legation as once the Fugitives in the Pyrenean Forest LXVI Whether an Embassage be alwayes to be admitted TWo things there are concerning Embassadors which we see commonly referrd to the Law of Nations first that they be admitted next that they be not violated Of the former is a place in Livy where Hanno a Carthaginian Senator inveighs against Annibal thus Embassadors coming from our Confederates and on their behalf our good General admitted not into his camp but took away the right of Nations Which yet is not to be understood too crudely for the Law of Nations commandeth not that all be admitted but forbiddeth them to be rejected without cause There may be cause from him that sendeth from him that is sent from that for which he is sent Melesippus Embassador of the Lacedemonians by the Counsel of Pericles was dismist out of the bounds of Attica because he came from an armed enemy So the Roman Senate said they could not admit the Embassage of the Carthaginians whose Army was in Italy The Achaians admitted not the Embassadors of Perseus raising war against the Romans So Justinian rejected the Embassy of Totilas and the Goths at Urbin the Orators of Belisarius And Polybius relates how the messengers of the Cynethenses being a wicked people were every where repulsed An example of the second we have in Theodorus call'd the Atheist to whom when he was sent unto him from Ptolomaeus Lisimachus would not give audience and the like hath befallen others because of some peculiar hatred The third hath place where the cause of sending either is suspected as that of Rabshake the Assyrian to disturb the people was justly suspected by Hezekia or not honourable or unseasonable So the Etolians were warned by the Romans that they should send no Embassy without permission of the General Perseus that he should not send to Rome but to Licinius and the Messenges of Iugurtha were commanded to depart Italy within ten days except their comming were to deliver up the Kingdom and the King As for those assiduous Legations which are now it use they may with very good right be rejected for the no-cessity of them appears by the ancient custom whereto they are unknown LXVII Of not violating Embassadors OF not violating Embassadors is a more difficult question and variously handled by the most excellent wits of this Age. And first we must consider of the persons of Embassadors then of their Train and their Goods Of their persons some think thus that by the Law of Nations onely unjust force is kept from the bodyes of Embassadors for they conceive priviledges are to be understood by Common right Others think force may not be offerd to an Embassador for every cause but on this ground if the Law of Nations be broken by him which is a very large ground for in the Law of Nations the Law of Nature is included so that the Embassador may now be punisht for all faults except those which arise meerly out of the Civil Law Others restrain this to those Crimes which are done against the State of the Common-wealth or his Dignity to whom the Embassador is sent Which also some hold perillous and would have complaint made
war now mention'd we have seen done with very great reason and advantage to the admiration of strangers These manners the Canons being teachers of humanity do propose to the imitation of all Christians as those that owe and profess more humanity than other men and therefore will have not husbandmen only but also the plowing catell and the seed which they carry to the field plac'd without the danger of war upon such like ground as the Civil Laws forbid the instruments of husbandry to be taken for a pledge and among the Phrygians and Cyprians of old afterward among the Atticks and Romans to kill the plowing Oxe was a heinous matter Fourthly it happens that some things be of that nature that they have no moment to make or continue war which things reason will have spared even while the war lasts 〈◊〉 belongs that speech of the Rhodians to Demetrius the Town-taker for the picture of Jalysus exprest by Gellius afteâ—… this manner What madness is it for 〈◊〉 to destroy that image by firing of the houses for if you overcome us and take the town the Image also safe and 〈◊〉 will be the reward of your victory but â—…f you besiege us in vain pray consider 〈◊〉 dishonourable it will be for you because you cannot conquer the Rhodians to 〈◊〉 your spight against a dead Painter â—…lybius saith it is the part of a raving mind to spoil things which diminish not the enemies strength when they are spoild nor add any emolument to the spoiler such as are Temples Galleries Statues and the like Marcellus spared all the Houses of the Syracusians both publick private sacred and profane as if he had come thither with an Army not to conquer but to defend them Cicero speaks it to his praise and the same Cicero after Our Ancestors left unto the Conquered what seemed pleasing to them light to us L. Things Sacred and Religious are not to be spoyled NOw as this hath place in other ornaments for the reason above mentiond so a special reason is added in things dedicate to holy uses For although these things also as hath been said are after their manner publick and therefore by the Law of Nations are impunely violated yet if no danger may come thence the reverence of things Divine requires that such buildings and the things perteining to them be conserved specially among them who worship the same God according to the same Law though perchance in some opinions and ritos they differ Thucydides saith it was the Law among the Greeks of his time that the Invaders of their Enemies should abstein from holy places Alba being overthrown by the Romans Livy saith they spared the Temples of the Gods Against Q. Fulvins the Censor Livy relates it was * said He enga ged the people of Rome in sacrilege by the ruins of Temples as if the immortal Gods one not the same every where but some one to be worshipped and adorned with the spoils of others But Marcius Philippus when he came to Dium to encampe unde the walls of the Temple gave commâ—… that nothing should be violated in the â—…ly place Strabo relates that the Tectosages who with others had taken away the Delphic treasure to paecify the God at home dedicated the same with an addicament That we may come to Christians Agathias commemorates that the Franks being of the same Religion with the Greeks spared their Temples Yea and men were usually spared for the Temples sake which not to allege the many examples of profane Nations this being the common custom among the Greeks S. Augustin thus commends in the Gotths that took Rome Witness the places of the Martyrs and the Royal structures of the Apostles which in that Vastation entertain'd the Conquered their own and altens flying to them 〈◊〉 did the bloody enemy rage here his jurious slaughter was bounded 〈◊〉 were led by the compassionat enemies they that had been spared other where that they might not fall into their hands that had not the like compassion Who yet though elswhere cruelly raging after they came to these places where that was forbidden which had been permitted elswhere by the Law of War all the immanity of their rage was refrained and their desire of taking Captives cooled What I have said of Sacred places is likewise to be understood of Religious even of those that are built for the honour of the dead For also these though the Law of Nations indulgeth impunity to anger exercised therein cannot be violated without contempt of Humanity Greatest is that reason say the Lawyers which makes for Religion Euripides hath a pious sentence as well for Religious as sacred places Who Cities Sepulchers and Temples wast Are Fools and ruinate themselves at last Apollonius Tyanaeus did thus interpâ—… the Fable of the Giants oppugning heaven They offerd force to the Temples and seats of the Gods Statius accuseth Annibal of sacrilege who set fire on the Altars of the Gods Scipio having taken Carthage rewarded his Soldiers with gifts These excepted who had injur'd the Temple of Apollo Caesar as Dion saith durst not take away the Trophy raised by Mithridates being sacred to the Gods of War His Religion would not suffer Marcus Marcellus to touch the things that victory had profan'd saith Cicero and be addes There are some enemies who iâ—… war retein the rights of Religion and of customs The same elswhere saith the 〈◊〉 of Brennus against Apollo's Temple waâ—… nefarious The deed of Pyrrhus who had robbed the Treasury of Proserpine Livy calls a foul deed and done in câ—…tempt of the Gods Such another acti Hamilco is call'd impiety and sin against the Gods by Diodorus The war of Philip the now cited Livy calls nefarious too as waged against the Gods both above and below wickedness also and madness Florus of the same Philip beyond the right of victory spar'd neither Temples Altars nor Sepulchers Polybius touching the s me story addes his judgment thus To spoil things which will neither be profitable to us for war nor hurtful to our enemies Temples especially and Images and the like ornaments in them is undeniably the work of a mind mischievous and madded with anger And in the same place he admits not the excuse of Talion or rendring like for like LI. The utilities of Moderation ALthough it be not properly a part of our design here to inquire what is useful but to restrain the loosness of warring to that which is lawful by Nature or among things lawful is better yet will Vertue herself vile in this evil Age be pleasd to excuse me if seeing she is contemned by herself I add esteem to her from the Consideration of profit First then that Moderation in preserving things which do not retard the war deprives the Enemy of a mighty weapon desperation It is Archidanius's saying in Thucydides Think the Enemies