who should serve us with food and pay us Contributions So Quintius when Philip over-ran Thessaly wasting all before him perswaded his Souldiers so to march as if the whole Country were now their own Thus likewise Croesus perswades Cyrus not to give Lydia to be spoiled by his Souldiers by this very Argument Non Vrbem meam non res meas diripies nihil enim ad me ista pertinent Tua sunt Tua isti perdent No sober man will voluntarily destroy his own This Country these 〈◊〉 these Goods are no longer mine but thine The fortune of the War hath left me nothing 〈◊〉 thine by the Right of Conquest Whatsoever then the Souldiers thus waste and consume is not 〈◊〉 but thine And to those who after the Conquest shall so waste and spoil what they have conquered may that of Jocasta to Polynices be not unfitly applied Petendo Patriam perdis Sen. Thâ—â— ut fiat tua Vis esse nullam quin tuae Cansae nocet Ipsum hoc quod Armis vertis infestis solum Seget ósque adultas sternis totas fugam Edis per Agros Nemo sic vastat sua Quae corripi Igne quae meti Gladio jubes Aliena credis Whilst thou seekest to regain thy Country thou destroyest it by endeavouring to make it thine thou makest it none It is a good Argument against thy Title that thou labourest to destroy it No man doth so to his own that which we wilfully consume by Fire and Sword we confess to be not ours but our enemies To the same sense are those words of Curtius Lib. 9. Quicquid corrupissent hostium esse confessi Whatsoever they had wasted they confess to have been their Enemies Ep. 7. 9 10. Nor very discrepant are those Arguments which Cicero in his Epistle to Atticus useth against that Counsel that Pompey gave namely To destroy his own Country by Famine IV. If the Enemy may be elsewhere supplied Thirdly We ought to forbear the wasting of an Enemies Country if we see that they may be otherwise supplied with necessaries either by Sea or Land Archidamus in Thucydides in that Oration wherein he disswades the Lacedemonians from making War against Athens enquires what hopes they had to subdue the Athenians If by wasting and destroying their Country they might do well to remember That the Athenians had other Lands and Countries under their Dominion which confined not on their Cities as Thrace and Ionia and that they wanted neither Ships nor Ports whereby they might be supplied with necessaries from any other Coasts In which Case it was best to cherish and protect the Husbandman even to the Enemies Quarters that upon payment of their Contributions to either Party they might enjoy Peace in the midst of War which we have seen done not only in our own late Civil Wars in England but not long since in the Wars of the Netherlands which also is very agreeable to the practice of the Indians among whom as Diodorus writes Their Husbandmen enjoy the very same Priviledges and Immunities as do their Priests insomuch that they follow the Plough without danger even in the midst of their Troops and to the very Skirts of their Camp And a little after he adds There is no enemy that will willingly wrong Husbandmen but will rather preserve them from all injuries as being the common Benefactors to both Parties Wherefore it was agreed and concluded in the War between Cyrus and the Assyrian as Xenophon records it That Cum agricolis pax esset cum armatis bellum Though the souldiers might fight yet the Husbandmen should live in peace Neither do the Indians as Diodorus testifies either burn their Enemies Corn or cut down their Trees Polyaenus reports the same of Timotheus namely that he set the fruitfullest part of the Country to Farmers and Husbandmen Oecon. 2. yea and as Aristotle adds sold the Corn even to his Enemies and with that money paid his Souldiers So did Viriatus in Spain as we read in Appian Procop. Goth. l. 3. And Totilas Whilst he besieged Rome gave no disturbance to the Husbandmen throughout all Italy but commanded them to follow their business without fear so as they sent their annual contributions unto him This is the Glory of a Conquerour to defend what he hath won and not to destroy it And this we have seen in our days to be practised by the Hollanders who ordinarily sold their Corn and other provisions even to their Enemies and with the money so raised paid their own Army with as much equity as profit even to the admiration of foreign Nations These manners and customs do our Canons commend to our Christian imitation because as we profess to be more civilized so ought we to express more humanity in our Wars than was practised among the Heathens whereof they enjoin us not to spare not the husbandmen only but the Oxen and Horses wherewith they plow and the seed which they carry out to sow their ground For the self same reason doth the Civil Law forbid to take in pawn any of those instruments that belong to the plough The Cyprians and Phrygians of old Aelian Hist l. 5. 14. and since them the Athenians and Romans did condemn it as an heinous Act to kill an Oxe that plowed up the Earth because the Oxe was Mans companion and fellow labourer in tilling of the Ground it was therefore forbidden by the Laws of Athens Rhodog c. 26. 19. that the Oxe should be offered in Sacrifice And Suetonius in the life of Domitian testifies That in the beginning of his Raign he so far abhorred murther that in his Fathers absence remembring that Verse in Virgil An imp'ous people wh ' on slain bullocks feast He forbad by an Edict the killing of Oxen. Vid. Plin. Nat. Hist l. 8. c. 45. cum Lipsii Annot Lit. D. And Aratus in his Phaenomena assures us that it was not lawful to eat of an Oxe that plowed the ground until the Brazen Age of the World began nor that their Gods in their bloody Sacrifices should be worshipt by them V. Nor if the things be of no use in War Fourthly there are some things of so innocent a Nature that they neither cause a War nor prolong it which things though the War continue yet common reason should perswade us to spare Thus do the Rhodians plead with Demetrius who in mere envy had besieged their City and threatned to burn it for that exquisite piece of Art the Picture of Jalysus drawn by Protogenes Lib. 15. c. 31. as it is recited by Aulus Gellius whose words sound to this sense What reason say they canst thou give for destroying so famous a Picture by firing the house wherein it is If thou canst conquer us the whole City together with that Picture safe and unblemished will by thine own but if thou fail in that design consider what a dishonour it will be to thee when it shall be said that although thou
man enjoys his own Paneg. So saith Pliny The Empire of a Prince is much greater than his private Patrimony Now there are commonly two things that are subject to Empire First Persons which alone sometimes sufficeth as in an Army of Men Women and Children seeking new Plantations Secondly Lands which are called Territories And although both Empire and Dominion are usually gained by one and the same Art yet are they in themselves distinct So we find in Apollodorus That the Lands as well in Arcadia as in Attica were divided yet the Empire remained in one only And therefore although the Dominion or Property of things do usually pass not to Subjects only but sometimes to strangers yet may the Soveraignty still remain where it was before Siculus in the Book that he wrote concerning the condition of Lands tells us That the Fields belonging to their own Colonies being insufficient they that took the care to assign and divide the Land did apportion to such of their Citizens as came afterwards such Fields as they had taken out of the Neighbouring Territories contenting themselves with the bare possession but leaving the Jurisdiction over them unto those whose the Territory was Demosthenes calls those Fields which lay within their own Territory Inheritances but those that lay in anothers Possessions only V. That the Right of Possessing things movable may by Law be prevented But in a place whose Empire is already possest the right of Occupancy as to things movable may by the Civil Law be anticipated as we said above For this Right proceeds from the Law of Nature rather permitting it than commanding that it be always lawful Neither indeed doth Humane Society require it And if any man should object That the Law of Nations seems to justifie it I shall answer That although in some parts of the World it commonly is or hath been so received yet did it never amount to a Compact or general Argument among all Nations that it should be so but is rather from the Civil Law of many Nations distributed which notwithstanding may by any particular Nation be rejected As indeed there are many other things which our Civil Lawyers seem to justifie by the Law of Nations when they treat of the division of things and of the manner of acquiring Propriety and Dominion VI. Upon what Right the Dominion of Infants and Mad-men is grounded This also must be observed That if we respect the Law of Nature only no right of Propriety can be admitted to those who have not the use of reason But the Law of Nations for the common good doth indulge this favour unto Infants Ideots and Mad-men that they may lawfully receive and retain the propriety of things All Mankind in the mean time favouring and as it were sustaining their persons For humane Laws may constitute many things that are preternatural but not any thing that is against nature And therefore that Right of Dominion that in favour to such is by the unanimous consent of all Civilized Nations thus introduced may haply consist with the first act of Dominion which is a power to have and to hold things in propriety but not with the second Act which is freely and voluntarily to dispose of them by themselves without a Guardian For as to the Right of alienation and the like because in their own nature they imply the act of a Will guided with reason which Infants and Mad-men have not Therefore doth not the Law permit these acts unto them Whereunto the Apostle alludes Gal. 4.1 Gal. 4.1 The Pupil though he be Lord of all the Inheritance yet during his non-age is no better than a Servant that is as to the use and free exercise of his Right We have heretofore begun to treat of the Dominion of the Sea which we shall now compleat VII That Rivers may be possest in our own proper Right Rivers may be held in Propriety though neither the Water above nor beneath be included within our Territories but do co-here with both or with a part of the Sea It is sufficient to denominate them ours that their greater part that is their banks on both sides wherein they are included are ours and that that River in respect of the Land adjoining is but a small thing VIII Whether the Sea may be so But by this it should also appear that the Sea might have been held possest by him that on both sides possesseth the shoar yea although it be open above as a Gulf or both above and below as a branch of the Sea so as it be not so great a part of the Sea that being compared with the Lands it cannot reasonably be thought to be a part or portion of them Now what is lawful to any one King or People may also be lawful to two or three in case they are willing to possess the Sea running alike between them So we have seen some great River gliding between two Territories occupied by both at first but at last divided IX Not so of old in some parts of the Roman Empire It is granted That in those parts of the Sea which were subject to the Roman Empire from the former ages till the Reign of the Emperour Justinian the Law of Nations did forbid that any one people should challenge any Right peculiar to themselves in the Sea though it were only the Right of Fishing Neither can we approve of their opinions who think That when the Roman Laws do tell us That the Sea is the Common Right of all it is to be understood only of all the Roman Citizens For first the words are so general that they cannot admit of such a limitation For what the Latines render in these words Omnium Commune The Common Right of all Theophilus expounds by these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Common to all men And Vlpian tells us That the Sea is by nature as open and free for all men as the Air. And so doth Celsus assure us That the use of the Sea is to all men alike Common Besides Civilians do manifestly distinguish the publick things of the people among which they reckon Rivers from those that are Common to all men For so we read in the Constitutions That some things are by the Law of Nature Common to all and some things are Publick By Natural Right these things are alike Common to all The Air Running Water the Sea and the shoar adjoyning But all Rivers and Ports are Publick The very same also we read in Theophilus and others Concerning the Sea Coasts Neratius was of opinion That they were not so publick as those things which are in the Patrimony of the people but as those which Nature at the first discovered but were never since in the occupancy of any no not of any one people Which seems to contradict that of Celsus who saith That to what place soever the Roman Empire did extend it self there the shoars are as I conceive the people's of Rome But the Sea as
a Globe thereby intimating That both the Earth and the Sea were subject unto him And Constantinus Monomachus is said in History to be Terrae Marisque Imperator Dominus Emperour and Lord both of Land and Sea Goth. 3. Of the right of the Venetians to the Soveraignty of the Sea See Paruta How it is claimed Camden 1602. Thus was the Aegean Sea made a part of the Roman Empire And yet Procopius gives the Dominion of the Sea at and about Marselles to the French The like do other Historians give to the Venetians in the Adriatique Sea Now the Dominion in any part of the Sea may in the same manner be obtained as other Empires are namely as is above said either by the numbers of men as when their Fleet which is nothing else but Exercitus Maritinus a Sea Army doth usually ride in such a part of the Sea Or by reason of their Territory when from the Land they can command those parts of the Seas adjoyning as fully as if it were all dry Land XIV Of the lawfulness of taking Tolls by Sea Wherefore it cannot be thought repugnant either to the Laws of Nature or Nations for such Princes as shall undergo the Charge of maintaining Fleets to secure Passengers from Pyrates or of Sea-Marks or Land-Lights to guide Merchants through dangerous places Plin. l. 19. c. 4. Strabo l. 17. to impose equal and indifferent Tolls upon such as shall receive benefit by them Such was that which the Romans imposed on all Merchants that sailed by the Red Sea to compensate the Charge they were at in sending out every year a Fleet with certain Bands of Archers to secure them from Pyrates that infested those Seas And that Toll which the Byzantines required from those that passed through their Seas whereof Herodian makes mention in the Life of the Emperour Severus And that also which the Athenians did anciently exact when they held Chrysopolis in the same Sea as Polybius testifies and that which the same Athenians required from those that passed the Hellespont when they had taken Byzantium as Demosthenes records The like doth Procopius mention in his Secret History of the Romans in his time The Rhodians also exacted Toll from the Islanders for securing the Seas from Pyrates yea and from Pharo at Alexandria as we read in Ammianus The like doth Caesar testifie of the Venetians whose Seas being Tempestuous and having but few Ports which they themselves held they made all that traffickt in those Seas pay Toll So likewise Florus concerning the Romans That having lost the Soveraignty of the Sea and the Islands being taken from them they were ashamed to pay that Tribute which they themselves were wont to command The same Procopius above mentioned as well in his Publick as Secret Histories speaks of an ancient Tribute paid in the Hellespont as also of a new Imposition exacted in the Streights of the Euxine and Byzantine Seas the one paid at Blackhern the other at Abydos which was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the tenth of the Fraight which was afterwards lessened by the Empress Irene and lastly by the Emperour Immanuel Comnenus granted unto certain Monasteries as Balsamo informs us upon the Fourth Canon of the Council of Chalcedon and upon the Twelfth Canon of the Seventh Synod The Danes in Queen Elizabeth's Reign required a Rose Noble of every Ship and one piece of Money in the hundred Camden Eliz. Anno 1582. 1602. and lastage for securing the English Sailers through their Seas to Muscovy Neither would they permit the English to fish in those Seas without leave or an yearly Toll XV. Some people by agreement forbidden to sail beyond such bounds Some precedents also we find of Leagues whereby one Nation is bound to another that they will not sail beyond such bounds So it was of old Articled between the Kings bordering on the Red Sea and the Egyptians that the Egyptians should not come into that Sea with any long Ship or with above one Ship of Burden Philost de vit Apol. l. 3. c. 11. Plut. Cymo Diod. l. 11. So it was agreed between the Athenians and the Persians in the time of Cymon That no Median Ship armed should sail between the Cyanea and the Promontories of the Mountain Taurus This was that most honourable Peace mentioned by Plutarch wherein it was also agreed That the Persians should not approach nearer unto the Sea than the length of an Horse Race that is than forty Furlongs And in those Annual Truces of the Peloponesian War it was Articled That the Lacedaemonians should not sail with long Ships but with other Vessels which should not carry above the weight of Five Hundred Talents Thucyd. l. 4. And in the first League which the Romans immediately after the expulsion of their Kings made with the Carthaginians Polyb. it was agreed That neither the Romans nor their Associates should sail beyond the Promontory called Pulchrum but if at any time they should either by distress of Weather or by their Enemies be driven beyond it they should carry nothing from thence but necessaries and should also depart within five dayes Whereupon Servius upon that of Virgil Littora Littoribus contraria observes that in that League it was provided that neither the Romans should approach the Carthaginian Shoar nor the Carthaginians the Roman Shoar Such another League there was made between the Romans and the Tarentines whereby it was provided that the Romans should not sail beyond the Promontory Lacinium So in the second League that was made between the Romans and the Carthaginians it was agreed that the Romans should neither traffick nor take any Prizes beyond the said Promontories Pulchrum Massia or Tarseium as also that the Romans should not touch upon the Coasts either of Africa or Sardinia unless it were to receive safe Conduct Liv. l. 48. c. 59. or to repair their Ships And after the Third Punick War we find the Carthaginian Senate blamed for that contrary to their League they had raised an Army and were making Naval Provisions The like we may read of the Sultan of Egypt that by a League made with the Graecians he had obtained liberty to send two Ships every year through the Streights of Bosphorus But yet were not all these sufficient to prove that either the Seas or the Right of Navigating them may be held in Propriety by any one or more people For Nations as well as persons may by contract and agreement among themselves relinquish not only what is properly their own but what belongs unto them in common with all other Nations in favour to those who may reap benefit by it And yet in this case we say not that the Seas could lose their freedom but that the people contracting and their successor are obliged to perform their contract and agreement that so the Law of buying and selling may be preserved And therefore both the present Occupants and they that should
Cicero speaks De leg 3. To reckon up all the inconveniences only in any Government and to pass over with silence all the conveniences is unjust because the good that we seek for we cannot obtain without the evil which we would avoid But of these several kinds of Government our choice being made and the right thereby transferred to another to reassume it at our pleasure upon what pretence soever is unjust Many causes there may be for which a people may be induced to renounce and yield up unto others all right of Government As namely Many reasons there may be why a people may yield up themselves to be Governed by another when they shall be reduced into so great danger of their Lives that no other way can be found whereby to defend themselves or when they shall be opprest with so much want as that they cannot otherwise sustain themselves Thus the Israelites being distrest by the Ammonites sent for Jephtha and rather then be opprest by a Foreign enemy they transferred the Government upon him whom before they had banished Judges 11. This also was the condition of the Campanes when they surrendred themselves unto the Romans in this Form We say their Embassadors in the name of all the people of Campania do freely surrender and give up our selves our City Capua our Fields Temples together with all that we have both divine and humane into your power O Conscript Fathers And some people we may read of who have offered themselves to the Romans upon condition of protection only and have been rejected App. Liv. lib. 5. lib. 8. as the Falisci and the Samnites And if so what then should hinder but that some people may in like manner surrender all power and right over themselves to some one man by whose wisdom and power they expect protection Also it may so happen that a man having vast possessions will not admit of any to inhabit his Countrey but under condition to submit to his Jurisdiction or It is possible that a man having large Territories and a multitude of servants may manumit them giving to each a proportion of Land on condition that they yield him their subjection with some kind of Tribute Precedents of this nature we want not Tacitus speaking of the Germans saith That every servant hath his several house and peculiar estate and governs his own Family his Lord imposing upon him what proportion of Corn Cattle and Garments he pleaseth which he readily payes and as a servant hitherto obeys Add hereunto what Aristotle observed That some men are naturally servants Some people naturally servile that is so apt for servitude as if Nature had made them for no other use and so are some people too of so servile a disposition that they know better how to obey than how to govern such were the Cappadocians who told the Romans plainly Strab. lib. 12. when they offered them Freedom that they could not live without a King Just l. 38. So Philostratus in the Life of Apollonius It is but solly to set at liberty the Thracians Mysians and Getes for they value it not Besides there were not a few people who have been perswaded to admit of Kingly Government by the example of other Nations who for many Ages have been observed to live very happily under it Seneca speaking of Brutus saith Though he were in other matters a gallant man yet in this he seemed to me to err Lib. 2. de Benef Not to have behaved himself like a Stoick That he was either affrighted at the Name of a King when the best Form of Government is that which is under a good King Or hoped for Liberty there where the rewards due to Empire and Subjection were so great Or that he could believe it possible to recall the Primitive Government The best Government is under a good King unless he could restore the Citizens to their ancient Manners or that he could reduce them to an equality of Civil Rights and put in force their ancient Laws when he saw so many thousands of men to fight Non utrum servirent sed utri Not whether they should obey or not but whom they should obey Some Cities saith Livy were so well pleased with the Government of Eumenes that they would not have changed their condition with the Freest Cities in the world The like is recorded by Isocrates That many deserted the Free Cities of Greece to live in Salamina a City in Cyprus under the Mild Government of Evagoras Again such may be the condition of a City that there remains no probable hopes of safety unless they put themselves under the Dominion of one single person Such was the state of the City of Rome which most wise men thought could not have been preserved had not Augustus Caesar assumed to himself the sole Government of the whole Empire Such cases I say not only may but do usually happen as Cicero observes in the second of his Offices But as hath been already said like as private Dominion may by a Just War be lawfully acquired so also may Civil Dominion or the right of Empire if it depend not upon some other Nor would I be thought to speak this of Monarchical Government only where that is received but the same Arguments will hold for the acquiring of an Oligarchical Government where the Nobles have excluded the Commons and assumed the Government upon themselves What that there is any Common-wealth so popular wherein some as the poor the stranger women and youths are not excluded from publick Counsels Even now there are some people also that have others truckling under them and who are no less subject unto them than they could be unto Kings Liv. lib. 1. Whence ariseth that Question in Livy Are the Collatine people under their own Jurisdiction or have they any power that is their own And the Campanes when they surrendred themselves unto the Romans Lib. 7. are said to be under the Jurisdiction of the Romans Acarnania as also Amphilochia are said to be subject to the Aetolians so are Peraea and Caunus to the Dominion of the Rhodians The Emperour Otho gave all the Cities of the Moors to the Province of Granado in Spain as Tacitus testifies So did Philip the City Pydna to the Olynthians Some Kings are so absolute that they are not subject to the whole body of the people Many other examples are here produced all which were absolutely Null if it be granted That the Right of Government be at the disposal of them that are governed Again some Kings there are that are not subject to the whole body of the people as Histories both Sacred and Prophane do testifie If thou shalt say saith God to the Israelites I will set a King supra me above me Deut. 17.14 Deut. 17.14 And unto Samuel saith God Shew them the right or manner of the King that shall reign over them 1 Sam. 8.4 The like we may
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
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 will of him that should do them We may therefore grant that where the Inundation is very great and where there are no visible signs of the owners intention to retain his dominion it may well be presumed that he gives his Land for lost Now as our conjectures in this case cannot but be naturally uncertain by reason of the variety of circumstances which are herein considerable and to be referred to the Judgment of some prudent man so ought it to be determined by Civil Laws As in Holland That ground is given for lost which hath for ten years been drowned in case there appear no signs that the possession is still claimed which with them is sufficiently done by fishing in it only though the Romans do not allow thereof But among other Princes the ancient occupants are prescribed a certain time wâ—erein to drein their Lands which if they do not then are the morgagers of that Land if engaged admonish'd to do it but if they delay it then the Magistrates either Civil or Criminal are to do it and if they neglect it then it is forfeited unto the Prince who may either drein it at his own charge or transfer it to some other reserving a part of it unto himself XI That the Increments of Rivers if in doubt are the peoples Whatsoever the floods do add to the soil because it cannot be known from whence it came cannot be claimed by any for if it could naturally the property should not be changed wherefore it is adjudged to be his whos 's the River is and if the River be the peoples consequently the increment is so too XII But if granted then theirs whose fields have no other bounds but the River But it is in the peoples power to grant it as unto others so unto those who enjoy the Lands next adjoyining and doubtless they are presumed so to do if those Lands have no other bounds but the River on that side And although that distinction which the Romans make between Lands bounded and Lands measured be of good use yet have both of them in this case equal right For what we have said before concerning the bounds of Empires * Ch. 3. §. 16. is of force here also with this only difference that the bounds of Kingdoms if in doubt are presumed to be arcifinious because those are most agreeable to their nature But private possessions are rather believed to be set out and bounded either by Landmarks or by measure as being most suitable to theirs But yet we deny not but that the people may grant their Land as fully as they themselves enjoy it that is even unto the River which if they do then is the increment of that River theirs also This was a judged case in Holland not many Ages since of grounds bordering upon the Rivers Izal and Maze because both by the deeds of purchase and by the books of rates they were always mentioned as bounded by the River And although in the sale of these Lands somewhat of the measure be exprest yet shall it retain its own nature and have right to whatsoever the River shall add unto it XIII So are the hanks if forsaken by the River and left dry What hath been said concerning that which the Floods do add to the soil is likewise verified of that part of the shore or of the Channel which the River forsakes For where there is no Occupant there the next Occupyer hath the best Title but in Rivers that are possest whatsoever is so gained from the Channel is the peoples or theirs to whom they have assigned the Lands next adjoyning as being bounded by the River XIV What is to be held as Increment and what as an Island Now because there is one manner of right proper to Islands and another to the increments of Rivers Controversies do often arise how to distinguish them especially when a little rising ground lyes near the Fields adjacent yet is separated from them by the intervention of a little water that covers the Plain as is often seen in the Low Countries where the ground is not level where also the customs do somewhat vary For in Gildria if a loaden Wain can pass through the Waters interjacent then is the rising ground judged to belong to the adjoyning Fields so is it also in the Fields of Puttene If a man standing upon the bank can with his Swords point touch the ground that lyes beyond the water Thus the German Histories record of Autharis King of the Lombards That sitting on Horseback upon the Shore and touching with the point of his Lance a certain Pillar said Vsque hic erunt Longobardorum fines Hitherto came King Autharis and this shall be the bounds of Lombardy The like story we read of the Emperor Otto who standing on the bank threw his Javelin into the Baltick Sea assigning that to be the limits of his Empire But it is most agreeable to Nature that if for the most part the passage over be by boat it should be judged an Island XV. When the Increment belongs to the Vassal Another Question doth no less frequently arise between a Prince that fully enjoys the peoples right and his Vassals or Lieutenants who under him are intrusted with the Government But it is sufficiently evident that the bare grant of the Government doth not intitle the Vassal to the increment of Rivers But yet we must note That many that are thus intrusted with these limited Governments do together with them receive the profits of all the * Universitatem agrorum Lands in general except such as are in the possession of private men Upon this presumption that those Fields were anciently either the peoples or the Princes or at least drained by the Prince and if so then doubtless whatsoever either the Prince or the people did so enjoy their Vassals have a good right unto Thus we see that in in Zealand those Vassals that have power to appoint Judges though but in civil affairs do pay a tribute to the State for their common Fields whereof every man according to the tenure of his private possession bears his proportion Now that these Vassals have a right to the increment of the Rivers there can be no doubt Others there are to whom the Rivers themselves are granted who may therefore justly claim the Islands thereunto belonging whether they be of mud heaped up together or made out of the Channel if surrounded by the River Others again there are in whose grants neither the one nor the other is included and these have but an ill cause to defend against the publick Exchequer unless either the custom of the Country do favour them or a long uninterrupted possession with such adjuncts as are requisite give them a right But in case the Lands only and not the Government be granted unto them then we must look unto the nature of the Land as is abovesaid For if its bounds be arcifinious then are the Increments granted
words of the Oath For he that calls God to witness the truth of what he saith is obliged to perform his word in that sense wherein he thinks himself to be understood That Soldier who being a Prisoner to the Carthaginians had gotten his Parole upon the credit of his Oath when being departed a little from the Camp he upon some pretence made his râ—â—urn unto it and supposing that he was thereby discharged from his Oath fled immâ—aâ—â—â—ly to Rome was by the Senate immediately sent back For they regarded not what he intended that sware The reverend esteem of Oaths among the Romans but what the Carthaginians expected from him to whom he had sworn For after this Rule doth God himself judge Qui non ut juras sed ut jurasse putavit Cui juras audit sic es utrique reus This is that which the same Cicero asserts What is sworn must be so done as he that imposed the Oath conceived must be done And it was the observation of Tacitus That they who swear timorously craftily changing the words of their Oaths had their Consciences polluted with wickedness Wherefore St. Augustine brands them with Perjury who though they perform what is exprest by the bare words of the Oath do yet delude the expectation of those to whom that Oath was given But as Isidore well observes though the words of the Oath be never so craftily penned yet God who is the Judge and Witness of the Conscience doth judge of it as he to whom we swear understands it Wherefore Metellus did wisely in refusing to swear to the Apuleian Law though he was told that that Law was unduly enacted and that the Oath was not binding unless the Law whereunto it referred was rightly gained For although in other Promises it be no hard matter to suppose some tacite condition which if admitted may absolve the Promiser yet in Oaths such tacite conditions are by no means to be admitted but if we do swear we must liquido jurare swear clearly and apertly For such an Oath for confirmation is the end of all Controversies as St. Paul testifies to the Hebrews and proves by the example of God himself Who to shew to the Heirs of the Promise the immutability of his Counsels confirmed it by his Oath that by two immutable things namely his Promise and his Oath wherein it is not possible that God should deceive us For so the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is best expounded in this place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Heb. 4.17 Dan. 7.16.8.26.10.1 as Plain Speaking is elsewhere called Truth we might have a sure Consolation For the clearer understanding of which words we must know That the Pen-men of the Sacred stories do often speak of God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 after the manner of men Not properly as he is in himself but as he appears unto us to to be For God doth not really change his Decrees and Counsels And yet he is sometimes said to change his sentence and to repent as often as he doth otherwise than his words seemed to import by reason of some condition tacitely understood though not exprest which ceaseth to be So we read in Jonah Yet forty days and Nineveh shall be destroyed Jo. 4.2 This was the Sentence that was denounced against their Impenitency but that ceasing the Sentence was reverst yet Gods Counsel did even then remain unchargable That such a condition is tacitely to be understood will evidently appear by that of the Prophet Jer. 18.8 And that this was true not in the case of Jonah and the Ninevites only Jon. 3.5 is plain by the like proceedings in the case of Abimelech Gen. 20.3 Of the Israelites Exod. 32.14 Of Ahab 1 Kings 21.29 In which sense God may though improperly be said to deceive us forasmuch as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hos 1.2 Abac. 3.17 Jos 24.27 Esa 58.11 Job 41.6 Hos 9.2 sometimes imports an event deluding our hopes or expectation as it doth Heb. 6.17 18. Levit. 6.2 Now this may easily be admitted of in Comminations because they confer not a Right to any And sometimes in Promises namely when some condition is understood though not exprest And therefore the Apostle in the place recited doth instance in two things which do necessarily infer an immutability in God First His Promise which confers a just Right Secondly His Oath which will not admit of any conditions tacite or any ways latent As may also be seen Ps 89.30 31 and so to the 36 verse But it is another case where the very nature of the business doth clearly discover some conditions to be performed Whereunto some do refer that of Numb 14.30 where God tells the Israelites That they shall not come into the Land concerning which he sware to make them dwell therein save Caleb the Son of Jephunne and Joshua the Son of Nun. Though this Promise of the Land of Canaan be much better understood as sworn to the People and Nation of the Jews than to any of their persons as is evident by verse 23. Surely they shall not see the Land which I sware unto their Fathers neither shall any of them that provoke me see it Whence we may observe That the Oath that was made to their Fathers was not to be fulfilled to them but to their Children For such a Promise might at any time be fulfilled which was not affixt to any particular persons like as it was afterward to Caleb and Joshua IV. An Oath by fraud procured when binding From whence we may also learn what to think of an Oath by fraud gained for certainly in case he that swears supposeth somewhat to be done that really is not or somewhat to be true that is false And unless he did so believe he would not have so sworn that Oath binds him not But if it be doubtful whether he would not have bound himself by Oath though he had not been so deceived then shall he stand to his agreement For there is nothing that naturally so well becomes an Oath Josh 9. Joshua's Oath as plain meaning And hereunto we may refer the Oath of Joshua to the Gibeonites which though it were gained by fraud yet doth it not thence necessarily follow That had Joshua known that they dwelt amongst the Canaanites he would not have spared them And whereas the Israelites say Perhaps ye live amongst us and how then shall we make a League with you It may be understood of the manner of the League which the Gibeonites desired Whether of Alliance only as amongst equals or of Dedition as with such who to preserve their lives did willingly surrender all things else to the pleasure of the Conquerour Or it was so spoken to shew That as it was not lawful for them to enter into any League with some people meaning that of Alliance so also it was not prohibited them to save the lives of such as should freely surrender themselves to
nothing that was any where that is among such Nations as were civilized reputed sacred should be by them profaned or violated Diodorus Siculus complains against Agathocles his Souldiers That they abstained not from that foul sin of ravishment The like doth Appian in his Mithridatick War concerning the Captives taken in Chius That both Women and Children were barbarously ravished by those that led them away prisoners Aelian speaking of the insolencies of the Sicyonians being Conquerours in ravishing the Pellenaean Virgins and Matrons crys out thus These by the Gods of Greece are such acts of cruelty and inhumanity as were never to my remembrance allowed of by the very Barbarians And surely it is but reasonable that this should be generally observed among the Christians not only as a part of our Military Discipline but as a part of the Law of Nations namely That he that shall forcibly abuse a Woman though in the War shall every where be punishable Belisarius always observed this Rule So did Totilas when he had taken Cumae Goth. lib. 3. and at Rome also as Procopius leaves it upon Record Neither did the Hebrew Law suffer this wickedness to go unpunished as may be collected from that part of it which so provides for a Virgin taken Captive That he that takes her might marry her and if afterwards he liked her not he might dismiss her but not sell her Thou shalt not take money for her because thou hast humbled her saith the Law Bacchai Deut. 21.12 Upon which words one of the Hebrew Doctors thus glosseth God would have the Camp of Israel to be holy and not like the Camp of the Gentiles polluted with Whoredom Contra App. and such like abominations Josephus likewise highly extolls the Jewish Law for its care of prisoners taken in the War to preserve them from shame and reproach especially of women Arrianus highly commends that fact of Alexander who being taken with Roxana's beauty refused to abuse her as his Captive but did her the honour to marry her So doth Plutarch also He disdained to force her as a Conquerour but wedded her as a Philosopher The same Plutarch relates it of one Torquatus That he was banished by the Romans into the Isle of Corsica for forcing a Virgin whom he had taken Captive But Cosroes King of Persia was more severe for he caused one that had ravished a young Maid to be Crucified as Procopius informs us in the second of his Persian Wars CHAP. V. Of Spoil and Rapine committed in War I. That the Goods of an Enemy may be spoiled or taken away II. Even those that are sacred which how to be understood III. Yea and those that are Religious where some caution is added IV. How far forth fraud may be used in this case I. That the Enemies Goods may be wasted and taken away CIcero in the third of his Offices gives this Rule Non est contra naturam spoliare eum quem honestum est necare It is no whit repugnant to the Law of Nature to spoil and plunder him whom it is lawfull to kill It is not then to be wondered at That the Law of Nations permits the spoil and devastation of an Enemies Land and Goods seeing that it permits him to be killed Polybius tells us * Lib. 5. That by the Right of War It is lawfull either to take away or to destroy the Forts Ports Cities Subjects Ships Corn Cattle and such like things of an Enemy And in Livy we read That there are certain Rights in War which as we may safely do unto an Enemy so we must with patience suffer from them such are the burning of our Corn the pulling down of our Houses the taking away of our Men and Beasts He that is vers't in Histories will find almost every page filled with these dreadfull effects of War the demolishing of Cities the razing and throwing down their Walls the spoiling and laying wast of the Enemies Countrey with Fire and Sword yea and we may observe That all these are lawfull to be done though the Enemy do voluntarily surrender themselves The Townsmen saith Tacitus set open their Gates of their own accord and submitted themselves and all they had to the Romans whereby they saved themselves But the Romans burnt the City Artaxata and laid it level with the ground because they could neither keep it with safety nor leave it with honour II. Though Consecrated Neither are things sacred that is consecrated to any one or more Gods exempted from these Out-rages of War meerly by the Law of Nations setting aside the consideration of other Duties for Cum loca capta sunt ab hostibus omnia desinunt esse sacra As soon as any place is taken from the Enemy every thing in it ceaseth to be sacred saith Pomponius And so saith Cicero Sacra Syracusarum victoria profana fecerat The victory made all the sacred things in Syracuse profane Tertullian in his Apologeticks confesseth That War and Victory cannot consist without the subversion of Cities which also cannot happen without some injury done to their tutelar Gods For Temples undergo the same fate that their Cities do and their Priests have an equal share in publick Calamities as other Citizens neither do their consecrated vessels escape better than their profane Tot Sacrilegia Romanorum quot Trophaea tot de diis quot de gentibus triumphi Look how many Victories the Romans had so many Sacriledges they committed and as often as they conquered their Enemies they spoiled and rifled their Gods The cause whereof is this because those things which are said to be sacred are not in truth exempted from humane uses but are made publick as Marsilius Patavinus observes in his Defence of Peace But they are called Sacred Chap. 5. §. 2. from the end whereunto they are destin'd which appears by this That when any People give themselves up to another People or to any King they deliver up that also which is called Sacred as is manifest by the usual form in Livy We the People of Campania do deliver up into your Power and Possession O Fathers Conscript our City Capua our Fields the Temples of our Gods together with all that we have whether Humane or Divine the like we read in Plautus his Amphitryo And therefore as Vlpian concludes There is a publick Right even in things that are sacred And Pansanias tells us That it was a Custom common as well with the Grecians as Barbarians that things Sacred should be disposed of at the Will and Pleasure of the Conquerour So when Troy was taken the Image of Jupiter Hercaeus was given to Sthenelus and many other Examples he there brings And Thucydides confirms this saying That it was a Law among the Graecians Lib. 4. That look whose the Empire was of any City or Countrey whether great or small theirs also were the Temples Wherewith accords that of Tacitus where he saith Annal. l. 12. That all the
late to help it This in all Cities is observed as an Oracle That in times of Peace they ever provide for War and in times of War they lay the foundations of a firm and lasting Peace we should neither place too much confidence in our friends because they may prove our enemies neither should we appear too diffident of our enemies because they may hereafter prove our friends But if the hopes of our enemies conversion cannot prevail with us to do them civil offices yet let us remember That there is no hostility at all against us in those things which an enemies Country produceth For all things there are serviceable all things profitable all things pleasureable or very necessary to our selves All its fruits affording unto us either nourishment or somewhat that is equivalent unto it Again Non opportet Bellum inferre Belli nesciis We ought not to make War upon those things that are so amicable so innocent that they know not what War means To burn cut down and utterly to extirpate those things which Nature by heat from above and moisture from beneath hath so tenderly brought up and nourished to no other end but to pay their yearly Tribute unto men as unto Kings savours of too much inhumanity Thus far Philo wherewith agrees that of Josephus If Trees saith he could speak they would certainly upbraid us with injustice for inflicting upon them the plagues and miseries of War who are in no wise guilty of the causes thereof Neither hath that Saying of Pythagoras any other ground than this where he tells us That to cut down or to hurt tender Plants or Trees that bear Fruit is a sin against Nature and not justifiable before God De non edendis lib. 4. Porphyry likewise describing the manners of the Jews taking as I suppose their Customs to be the best Interpreters of their Laws extends this Custom or Law to all Beasts that are serviceable for Tillage Their Talmuds and their Interpreters do yet stretch out this Law somewhat farther even to all things that may causelesly perish as the firing of Houses the poysoning of Springs or the spoiling of any thing that may afford nourishment to Mankind unless it be such Trees or Houses as being near unto the Walls may thereby hinder Souldiers in the performance of their Military Duties Agreeable with this Law was that prudent moderation of the Athenian General De Repub. l. 5. Timotheus Who would not suffer his Souldiers to destroy any House or Village nor cut down any Plant that bare Fruit. There is the like Law extant in Plato prohibiting the laying of any Lands waste or the demolishing of any Houses And if we may not waste the Country of an Enemy much less when by Conquest we have made it our own Offic. l. 1. Cicero did not approve of the demolishing of Corinth though the Citizens had unhandsomly treated the Roman Ambassadours And in another place he calls that War an ugly Pro domo sua horrid and malicious War that was made against Houses Walls Pillars and Posts Livy highly commends the lenity of the Romans for that having taken Capua Lib. 26. they did not pull down the Walls nor set on fire the innocent Houses There is a most excellent Epistle upon this Argument extant in Procopius which Belisarius writes to Totilas It hath been saith he reputed in former Ages the Glory of wise men to raise fair and magnificent Structures to preserve their Names and Memories but to rase and demolish them being built was ever esteemed the badge of folly and madness as not blushing to transmit to Posterity the Monuments of their own vileness It is confest by all men That Rome is the most magnificent and beautiful City of all that the Sun beholds Neither did it arise to this height of splendour by the bounty or industry of any one man or in few years but many Kings and Emperours and a vast series or succession of Noble-men many Ages and a stupendious Mass of Treasure have drawn hither as other things so the most expert Artificers in the World whereby having by little and little brought this City to that perfection wherein we now see it they have bequeathed it to future Ages as an everlasting Monument of their Vertue and Magnanimity wherefore to rase this City were to be injurious to Mankind in all Ages to our Ancestors in sacrilegiously burying in its Ruines the memory of their noble Acts to our Posterity enviously depriving them of the very sight of those noble Structures whereby they may be excited to the imitation of their Vertues And if it be thus then consider that one of these two must necessarily fall out either the Emperour must vanquish or you If you be Conquerour then in destroying this City you destroy not what is your Enemies but your own and in preserving it you enjoy the richest and most beautiful place on the Earth But in case thou be worsted thy clemency in preserving this great City shall plead strongly to the Emperour for mercy but in destroying it all hopes of favour lye buried in the ruines of it and thou shalt not only lose whatever thou canst gain by the Spoil but an eternal brand of shame and infamy shall cleave unto thy Name throughout all Ages according to thy dealings herein For fame is equally ready to report either good or evil of us Potentum quales sunt actiones talis existimatio According to the lives and actions of Grandees so is their fame to the Worlds end Thus far Procopius It is true Josh 6. 2 Kings 3.19 that God himself in the sacred Scriptures did not only command that some Cities should be destroyed by fire but also that the Trees of the Moabites contrary to this General Rule should be cut down But this was not done out of an hostile malice but out of a pure detestation of their sins which were either publickly known to deserve such a punishment or at least were so reputed in Gods account III. If there be great hopes of Victory Secondly We should forbear to waste an enemies Country where the possession of it is in question especially if there be any probable hopes of a speedy Victory whereby both the Land and the profits thereof are likely to become the reward of the Conqueror So Alexander the Great as Justine tells us prohibited his Souldiers from depopulating Asia telling them That they ought rather carefully to preserve their own and not to destroy that which they came to possess Thus Gelimer with his Vandals besieging the City Carthage Proc. Vand. 2. made no spoil nor took any pillage but secured the Country to himself as his own The like Speech I find in Helmoldus Nonne Terra quam devastamus nostra est Lib. 1. c. 66. Is not the Land that we waste ours and the people whom we destroy our Subjects Wherefore then are we become Enemies to our sâ—lves wherefore do we drive away those
our own inconvenience page 424 Friendship to what Offices it obligeth 550. the breach whereof dissolves Peace ibid. Fruits of any one Nation to monopolize whether and how far lawful page 87 Fruits with the thing to be restored 147. and what Fruits those are page 147 148 Fruits of the Earth not to be destroyed if the Enemy may elsewhere be supplied page 513 Fugitives exempted from Postliminy page 491 Future things being contingent not worth Oaths page 175 Of Future things three kinds of speaking 151. a bare Assertion what and of what force ibid. G. GElderland Rights concerning Islands and Increments page 138 A General and a Captain how distinguisht 563 his power over his souldiers 564. he may manage the War but not conclude it ibid. he cannot dispose of Men Lands or Empire 564. he might of the spoil among the Romans 474. yet were some of them very abstentious 475. what power he had over the spoil page 565 A General not transgressing his commission binds his Prince though it be contrary to his private instructions 564. but if beyond his commission he binds not his Prince but himself ibid. By a General agreements made to be strictly interpreted page 565 Generals may make Truces so may inferiour Officers but not Peace ibid. may contract if profitably and thereby bind both his Prince and himself page 563 564 Gentiles and Greeks who 8. not obliged by the Mosaical Law page 9 Germans anciently contented with one Wife 106. they gave their Servants Houses and Land for to supply them with Corn and Cattle page 38 Giants age what it signified page 79 Gibeonites Peace with Joshua page 168 169 God approves of the Right of the spoil in War page 468 God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in what sense 364. made all things for himself ibid. visits the sins of Parents upon their Children by what Right 402. his decrees and councils change not 168. cannot ly 443. spares the nocent for the innocent 434. his Right over Men greater than ours over men page 459 That there is a God proved 387 388. by natural reason and universal tradition ibid. God by his promise obligeth himself 152. in Oaths both witness and avenger 171. the best and most powerful of all Beings Pref. vi how said to change and repent 168. his love no impediment to his justice 23. sometimes said to deceive but improperly 168. his threatnings extend but to the fourth Generation and why 402. his power over mens lives absolute ibid. Good better than True and why page 442 A Good man doth Good though provoked otherwise page 371 A Good that 's general to be preferred before that which is private though our own page 412 423 The Goods of Subjects naturally lyable to the Debts of Princes page 447 Goods of the innocent ballanced with the lives of the nocent 74. Subjects how far in the power of the Prince to make Peace page 545 Goods of friends in an Enemies ship nor the Ship of our friends fraught with Enemies Goods are lawful Prize page 470 Goods moveable when taken and when Land ibid. Goods of a Captive are his that takes him page 562 Goods of Subjects may be detained for a just Debt or in cases of necessity but not as a punishment for anothers crime page 517 518 Goods not to be taken away with an intent to restore unless in case of necessity page 149 Gospel requires more than the Law of Nature Pref. xviii commands us to love our Enemies but not equally with Friends page 23 Gospel adds new precepts and heightens the old page 17 Goths moderate in pillaging things sacred page 515 Government not at all established for the good of Subjects though most Empires are 40. none without inconveniencies 46. the best under a good King page 38 Government where Despotical is like that of a great Family 485. the present not to be altered 100. mixt examples 47. some left to the Conquered 527. that which respects the good of the People is Monarchical but that which respects the Prince only Tyrannical page 485 Grants of a Prince bind his Successor if there be any publick reason for them 179. when revocable and when not page 180 Gratitude preserves society Pref. v. to the Dead how it should descend 126. to be prefer'd before Benificence page 124 Grecians had two Wives 166. their custome concerning the spoil page 474 Guardians to King Ptolomy the Romans page 44 Guardians and Protectors to Kings disabled who ibid. In Guessing at the will of the Intestate Debts of Gratitude to be prefered before Beneficence page 125 In Guessing at the will of the Prince whether an inferiour Officer may make War page 35 H. HAbitation whether to be granted to Strangers page 85 Habits in sin to be prevented by punishments page 379 Heresie what 392. it proceeds from Ambition Vain-glory or Covetousness ibid Heretick they are not that err through an ignorant zeal ibid. Towards Hereticks the meekness of the Fathers ibid. Hardness of heart from God when he will destroy page 169 Heart to steal away what page 441 Hebrews whether they might do good to or receive good from Strangers 184 185. their Laws concerning Slaves 520 521 concerning Trees in War 511. concerning Contracts 160. commanded to destroy the Temples and Idols of the Gentiles 466. their Law concerning the Women Captives 463. concerning Land taken in War 472. concerning the crowning the Conquerour page 479 Heir not bound to pay Debts of gratitude Piety or Fidelity page 173 The Heir of a Promiser how far bound by Oath ibid. not punishable for his Fathers sin though chargeable with his Debts page 404 Heralds the Colledge judge of the equity of a War 452. proclaiming War crowned with vervain 453. their form in denouncing War page 70 71 Herod defended by M. Anthony for what he did as a King page 39 Holland Laws concerning Islands and Increments 137. concerning Rivers dryed up and Lands drowned ibid. Homicides to what restitution obliged 202 to kill lawful 15. their Children not capable of honour page 403 Honesty consists not in a point generally commanded in the Gospel page 21 Honour what more seen in patience than in revenge page 74 Hortensius page 123 Hostages to kill lawful in War 461. to be spared unless criminous 509. to be freed the Principal dead 555. one not obliged for the others fact 556. whether freed by the Death of him that sent him 557. escaping not to be received 555. no Slaves ibid. who may be sent what Right is given over them whether they may fly or for other causes detained ibid. Hostis signifies a Foreigner page 182 Husbandmen in War spared page 506 513 514 Hyberboles to what end spoken page 442 Histories have a twofold use examples and judgment Pref. xvii Historians not always to be believed page 36 I. IDolatry its kinds and degrees page 369 388 Idolaters not all put to death by the Jews page 389 Jehu's Fact what page 93 Jews a Nation no whit obliging Strangers