was fully stockt with men lest the same license should again increase God thought fit to restrain it by a more severe punishment So that correcting the lenity of the former age what nature before judged not unjust he himself permitted to be done namely that he that sheds mans blood should himself be put to death and that he that killed an Homicide should be held innocent But afterwards Tribunals being erected this power for many weighty reasons was transferred to Judges only yet so that some prints of that ancient custom were to be seen even after Moses his law was given whereof more shall be said anon as may appear by that right which was granted unto him that was next of kin unto him that had been slain We have Abraham's practice to justifie this gloss who though he very well knew the Law that God gave unto Noah Gen. 9.6 yet took Arms against the four Kings presuming on that principle of Nature that to destroy the destroyer was not displeasing to the God of Nature Thus Moses commanded the Israelites to fight the Amalekites who with Arms opposed their passage into Canaan having no other warrant for so doing than the bare Law of Nature For it appears not that in this as in other like cases he consulted with God at all Exod. 17.9 Exod. 17.9 Whereunto we may likewise add that Capital punishments were executed not against murther only but against other great crimes and that not amongst the Gentiles only but even among the Patriarchs as the story of Judah and Thamar doth clearly evince Gen. 38.14 Gen. 38.14 rationally conjecturing by an Argument drawn from like to like that it was agreeable to Gods will that the punishment ordained against Homicides might justly be inflicted on such as were notoriously criminous For some things there are that we equally value as we do our lives such are our Honour our Virgin Chastity our Matrimonial Faith and such things without which our lives cannot be well secured as our reverence to our Prince without which no society can be preserved Now they that offend against any of these are no better than Homicides and are therefore to be equally punished with them Hence ariseth that ancient Tradition among the Hebrews that God gave more laws to Noah than were recorded by Moses who thought it sufficient to insert them among those laws which God gave to the Hebrews by himself Incestuous marriages forbidden before Moses Incestuous Marriages were certainly forbidden by some Law before Moses his time for which God is said to visit the Heathen and to cast them out for it had not been accounted as a sin and so not punishable by desolation had there been no law to forbid it and yet we do not find it in any place expresly prohibited until Moses records it as punished Lev. 18. Among those things that were commanded by God to the Sons of Noah they reckon this that not only Murther but Adultery Incest and violent Rapes were to be punished with death which seems to be confirmed as well by the story of Abimelech Gen. 20.6 Gen. 20.6 as by the words of holy Job Job 31.11 Job 31.11 But the law given by Moses adds the reasons of these Capital punishments which were no less in force among the Gentiles than among his own people Psal 101.5 Prov. 20.8 as it is most apparent Lev. 18.24 25. and the 27 and 28. verse And elsewhere he tells us that the Land being defiled with blood could not be cleansed but by the blood of him that shed it Numb 35.31 33. And it were unreasonable to think that God should indulge this favour to the Jews only that they might defend themselves by war and punish malefactors with death and at the same time forbid it to other Nations Neither doth it appear that the Prophets were at any time sent by God to admonish or reprove either Kings or People for either inflicting Capital punishments on Malefactors or for undertaking a war merely as war as they were to reprove other sins But on the contrary who would not think but that seeing Moses's judicial laws were observed to carry the stamp of the divine Law those Nations did wisely and piously who formed their laws according to that original As questionless the Greeks especially the Atticks did and from them the Romans in their Laws of the twelve Tables But let this suffice to prove that the laws of Noah are not so to be understood as they conceive who by them would evince all wars to be unlawful VI. Cautions concerning the lawfulness of war by the Gospel law But much more specious are those Arguments which are drawn out of the New Testament against war In the examination whereof I shall not take that as granted which some do that there is nothing in the New Testament commanded except matters of Faith and the Sacraments but what is commanded by the Law of Nature For this in that sense wherein they take it I cannot admit it But this I willingly grant that there Caution 1 is nothing commanded in the Gospel but what is naturally honest But that the laws of Christ do not oblige us further than to what the Law of Nature doth by it self bind us I see no reason why I should admit And for them that approve of this opinion it is a wonder to see what pains they take to prove that Polygamy Divorce Fornication which we find forbidden in the New Testament were by the law of Nature unlawful Hence is that of St. Jerome Aliae sunt leges Caesaris alia Christi aliud Papinianus aliud Paulus noster praecipit The laws of Caesar are one and the Laws of Christ another it is one thing that Papinian prescribes unto us and another what St. Paul commands 'T is true thâ—se are such as â—ight reason tells us to abstain from is more agreeable to the rules of honesty but not such as are in themselves impious but only as they are by the Divine Law forbidden But as to that which the Christian Law enjoyns us namely That we should lay down our lives one for another John 3.16 who can say that we are obliged thereunto by the Law of Nature It is for those that do not yet believe the Gospel Ad Lenaâ— to be guided by the Law of Nature saith Justin Caution 2 Martyr of which opinion likewise was Origen Neither can I assent unto those who hold that Christ in his Sermon on the Mount did only interpret and as it were embowel the Law of Moses For those words so often repeated Ye have heard that it hath been said to them of old But I say unto you do plainly signifie another thing yea and the Syriack and other Translations do clearly shew that by veteribus is understood not by but to them of old as in the opposite word vobis is not meant by but to you But those of old were none other but such as lived in Moses
he refers to Optimacy as that of the Consuls which he refers to Monarchy were both of them subject to the power of the people Now the self same may be said in answer to all other the Opinions of those that write of Politicks who haply think it more agreeable to their purpose to gaze on the extern face and daily administration of the Soveraignty than unto the very Right of it it self XX. True examples Much more pertinent to the matter is that of Aristotle who saith That between a full and absolute Monarchy and that like unto the Laconian being but a meer Principality there are some of a Mixt kind whereof we have an example as I conceive in the Isâ—aelitish Kings who doubtless in most things governed by a full power Mixt Governments For such a King the people required as their Neighbour Nations had Supposing as Josephus testifies That if they were governed like unto their neighbours they should suffer no Inconveniencies not considering that all the Eastern Nations except themselves were under a Slavish Government So Atossa in Aeschylus speaking to the Persians of their King saith That he is not accountable to the City for what he did That of Virgil is well known Nor Aegypt nor vast Lydia Nor Medes nor Parthians thus their Kings obey Livy gives this Character of the Syrians and all the Asian people That they were a kind of men born to be Slaves Not much unlike is that of Apollonius in Philostratus The Assyrians and Medes do adore their Kings nor that of Aristotle Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy And to the same sense is that Civilis Batavus to the Gauls in Tacitus The Syrians and Asians might well serve Hist l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs Not but that there were even at that time Kings also both in Germany and France but as the same Tacitus there observes All the Asian Kings Absolute They were such as governed for the most part in a Precarious way or as I said before more by a Perswasive than by a Coercive Power We observ'd before that the whole body of the people of Israel was under their King And Samuel describing the Government of Kings sufficiently proves That against the Injuries done by them there remained no power at all in the people either to resist or revenge Which the Ancients did rightly gather from those words of King David Tibi soli peccavi Vnto thee only have I sinned because as St. Hierom upon that place glosseth David being a King stood in fear of none but God as having no other Judge but him So likewise St. Ambrose David was a King and so subject to no Laws For Kings are Free from those shackles wherewith their Subjects crimes do entangle them They Fear no punishments being secured by the power of the Empire To Man therefore he sinned not because to him he was not accountable for his Actions Apposite to this is that of Vitiges in Cassiodore Causa regiae potestatis supernis est applicanda judiciis quandoquidem illa coelo petita est ita soli coelo debet Innocentiam The cause of a King is to be referred to Gods Tribunal for from whence he derives his power to him only he owes his Innocence And in cases of such oppressions God himself prescribes the only Remedy that the people can have against their Kings namely Prayers and Tears And ye shall cry out in that day because of the King whom ye have chosen 1 Sam. 8.18 He doth not encourage them to Rebel nor doth he prescribe any Legal way of proceeding against them only they may cry unto the Lord and if he heard them not they must suffer with patience Nor doth Samuel insinuate this to the Jews as if it were nudum factum that is That Kings abusing their power would do so but as if it were Jus Regium a Right proper to Kingly Government to do so The Jews themselves grant that if their Kings did transgress those Laws which Moses prescribed unto them they were to be beaten with Rods. But this was no reproach unto them neither was it by compulsion but by a voluntary susception as a sign of their penitence Nor was it done by any publick Officer but as he imposed it upon himself freely so he chose whom he pleased to do it and prescribed both the manner and measure of his own punishment But from all Coercive punishment their Kings were so free that even that Law of Excalciation Deut. 25.9 because it was not without some reproach was not in force against them Yet notwithstanding all this there were some Cases whereof their Kings had no Right at all to judge but they were reserved to the Great Sanhedrim or Council of the 70. Elders which being Instituted by Moses at Gods special Command continued by a perpetual supply of Election until the dayes of Herod For which cause Deut. 1.17 Pâ—al 82.1 6. they are by Moses and David frequently called Gods and their Judgement Gods Judgement And those Judges are likewise said to judge not for man but for God 2 Chron. 19.6 8. Nay there is a plain distinction made between the things of God and the things of the King 2 Chron. 19.11 where by the matters of the Lord as the most Learned among the Jews do interpret it are meant the Administring of Judgement according to the Laws of God That the Kings of Judah did by themselves sometimes inflict Capital punishments I cannot deny wherein Maimonides prefers those Kings before the Kings of Israel which is sufficiently cleared by many examples both in Holy Writ and also in other Hebrew Authors But yet the Cognizance of some Causes was not permitted unto them as that of the Tribes that of the High Priests that of a Prophet For it cannot be saith our Saviour that a Prophet perish out of Jerusalem Luke 13.33 And this is evident by the story of Jeremy whom when the Princes demanded to death the King answered them Behold he is in your power for against you the King can do nothing Jer. 38.5 Jer. 38.5 Yea and in another place he that was condemned by the Sanhedrim could not be released by the King himself And therefore Hircanus Jos Ant. l. 14. c. 17. In Criminal Cases the King of Macedon's power availed nothing Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sentence against Herod advised him by Flight to secure himself In Macedonia they that derâ—ved their Pedegree from Caranus as Calisthenes in Arianus reports obtained the Government not by Force but by Law Now the Macedonians though they were accustomed to Regal Government yet had a greater smack of liberty than other Nations For it was not in the power of the King himself to take away the life of any Citizen It was the Antient custome of the Macedonians in criminal
the ancient Estate shall return from whence it descended and to their Children X. But that which was lately gained to the nearest in blood XI The Laws touching Succession are diverse XII How Succession takes place in Patrimonial Kingdoms XIII In Kingdoms Indivisible the first-born to be preferred XIV That Kingdom which by the peoples consent is hereditary if in doubt is presumed indivisible XV. The Succession not to last beyond the line of the first King XVI Natural Issue not at all concerned in it XVII The Male Issue preferr'd before the Female within the same degree XVIII Of the Males the eldest is to be preferred XIX Whether such a Kingdom be part of an Inheritance XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began whether Absolute XXI Or held of another in Fee XXII Of Lineal Suceession to the next in blood whether Males or Females and how the Right is thereby transmitted XXIII Of Lineal Succession to the Male Issue only called Agnatical Succession XXIV Of that Succession which always respects the nearest to the first King only XXV Whether a Son may be exheredated so as to bar his Succession to the Crown XXVI Whether a King may for himself and his Children renounce his Kingdom XXVII Concerning the Right of Succession the Judgement to speak properly is neither in the King nor People XXVIII A Son born before his Father was King shall be preferred before him that was postnate XXIX Vnless it be otherwise provided by some other Law XXX Whether the elder Brother deceased his Son be to be preferred before the younger Brother explained by distinction XXXI Also whether the younger Brother living be to be preferred before the Kings elder Brothers Son XXXII Whether the Kings Brothers Son be to be preferred before the Kings Vncle XXXIII Whether the Kings Son be to be preferred before the Kings Daughter XXXIV Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter XXXV Whether the Daughter of the eldest Son be to be preferred before the younger Son XXXVI Whether the Son of a Sister be to be preferred before the Daughter of a Brother XXXVII Whether the Daughter of an elder Brother be to be preferred before the younger Brother I. Some of the Civil Laws unjust HAving thus shewed what Right may be derived from another by his Act now we are to treat of the Right that is derived from another by Law And this is either by the Law of Nature or by the voluntary Law of Nations or from the Civil Law It were endless to treat here of the Civil Law neither are the main Controversies concerning War thereby determined and therefore we shall purposely omit it Yet is it worth our Observation to know that some of the Civil Laws are apparently unjust as that which adjudgeth goods Shipwrackt unto the Kings Coffers For to take away anothers Right and Propriety without any preceeding cause that is probable is a manifest injury Thus pleads Helen in Euripides Helen Wreckt and a Stranger came I in Such to despoil is horrid sin For what Right saith Constantine can the misfortunes of another create to a King that he should be enriched by a calamity so much to be pitied Lib. 1. C. de Naâ—f l. 12. And therefore Dion Prusaeensis in an Oration of his concerning Shipwracks crys out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Far be it O Jupiter from me to take such advantages by other mens misfortunes And yet such a Right do the Laws of Nations very unjustly give as amongst the English the Sicilians And such an ancient Law Sopater mentions to be in force in Greece Christian King of Denmark upon the abrogating of this Law complained That he lost an hundred thousand Crowns yearly Nicetas speaking of this Law calls it a Custome so barbarous as is not to be named What then was Bodines meaning to defend this Law He namely who reprehended Papinian for chusing rather to dye than to act against his own Conscience II. A man may have a Right to that which he takes from another and when Propriety or Dominion being introduced it follows by the Law of Nature That things are alienable two ways First By commutation which consists in the making up of that Right which I want whereby the ballance of Justice may be made even or Secondly By Succession Now Alienation by way of Commutation or Expletion is when for something that is or ought to be mine which I cannot receive in kind I take from him that detains it or somewhat in lieu thereof that is some other thing of equal value Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods See Book 3. ch 7. §. 6. Which saith he they might take and keep in compensation of their labour Now that Dominion may be thus transferred is easily proved from the end which in moral things is the best proof For how otherwise can I be said to receive my full Right unless I become the right owner of it Seeing that it is not the bare detention but the full power to use and dispose of it at my pleasure that makes the Scales of Justice even An ancient example of this we have in Diodorus where Hesionaeus in lieu of those things which being promised to his Daughter by Ixion but not given took away his Horses For Expletive Justice when it cannot recover what is the same endeavours to get the value of it which in a moral estimation is the same By the Civil Law no man we know can do himself Right Nay if any man shall with his own hands take away from another though but what is his due it shall be imputed unto him as Rapine and in some Countreys he shall lose his debt And although the Civil Law did not diectly forbid this yet from the very institution of publick Tribunals it may easily be concluded to be unlawful But where there are not publick Courts to appeal unto as on the Seas and in Desarts there the Law of Nature must be our guide So it should sometimes when the Laws cease but for the present that is if the debt can never be got otherwise As if the Debtor be ready to fly the Countrey before the Courts can be open in which case the Creditor may lawfully have recourse to the Law of Nature Yet so that the Judgement of the Court must afterwards be expected before the Right of Propriety can be assured as in the case of Reprizals as shall be said hereafter But yet if the Right be certain and it be also morally as certain That a man cannot by a Judge receive satisfaction for want of due proof the best opinion is That the Law concerning Judgements ceaseth and that a man may have recourse to the ancient Law of Nations III. The Estate of
sides the equity of doing the same thing is alike wherefore he crys out qualem O Jupiter justitiam fecisti what manner of justice is this that thou hast made O Jupiter that must necessarily arise out of injustice quousque progreditur malum ubi tandem consistet how far shall this evil proceed and where shall it at length end thus likewise doth Aristides argue in his Oration for peace who of all the Grecians would be left alive if to revenge the death of those who are already slain those yet living should wilfully run upon their own ruine For prevention of which inevitable mischief were as I have already said Laws instituted Tribunals erected and Magistrates ordained yet doth this liberty that nature gave us at the first remain still in force in such places where no Laws are or can be executed as on the Seas and in desert places yea and in divers Nations especially amongst the antient Germans where almost all differences were ended by the Sword as appears by that of King Theodorick in Cassiodore to his Goths Break off saith he this prodigious custom of single combats where matters in differenee are much better discust with words than blows and in another place what need have we of tongues if every slight quarrel must be ended by the Sword whither haply we may refer that act of Cajus Caesar who being then a private person did with a tumultuary Fleet pursue and chase certain Pyrates by whom he had been formerly taken dispersing some of their Ships and sinking others and when he found the Proconsul negligent in punishing the Captives whom he had taken he himself returned to the Sea and commanded them to be hanged so likewise is it among the Umbrians where every man is his own Judge and avenger which at this present is usually practised among the Muscovites and that without any restraint in some small time after their address in vain made to the Judges from whence also before Christian Religion was planted Duels whence they arose sprung the custom of Duels among the Germans which is not yet utterly abolished Wherefore the Germans in Paterculus admired when they observed the form of the Roman Jurisdiction whereby all contests and injuries were decided in a judicial way and that that which was usually before determined by force of Arms was now decided by Law the Hebrew Law permitted the kinsman of him that was murthered to kill the murtherer â—ith his own hand in case he overtook him without the Cities of refuge And it is well observed by the Hebrew Doctors that a kinsman might exact the Law of retaliation with his own hand for the person killed but for himself if any violence was offered him either by wounds mutilation or otherwise he was to make his appeal to the Judges because it is a very difficult thing to moderate our passions when they are excited by our own personal grief The like custom of taking private revenge for murther we find to have been among the antient Greeks as Homer testifies but examples of this kind are much more frequent among such as have no common Judge to decide controversies whence it is that just wars are defined to be those Aug. whereby injuries received are revenged And Plato doth so long approve of contests by war until the person injuring shall be enforced to give unto the person injured just satisfaction IX 3. To every man indistinctly The profit that every man indefinitely may receive by the punishment of a Malefactor which is the third end why they are punished hath as many parts as that which the injured person receives by it for he is so punished either lest he that hath injured one should injure another which may be prevented either by his death or by disabling him from doing the like injury as by imprisoning him or secondly by reclaiming him or thirdly lest others being encouraged by the hopes of impunity should be alike injurious unto others which is the end of all publick punishments which are therefore used ut unius poena metus sit multorum that the punishment of one might strike a terrour into many Or as Demosthenes speaks that others may learn wisdom and fear Polybius records that he saw some Lyons crucified for attempting the life of a man that so the rest for fear of the like punishment Pliny lib. 8. c. 16. might be affrighted from committing the like crime Now the power of executing this right also is naturally in every man thus Plutarch tells us that nature doth design a good man to be a perpetual Magistrate for that man that is eminently just and honest is by nature raised up and qualified for a Prince Vit. Pelop. as the same Plutarch speaks of Philopoemen that he took upon himself the defence of the Citizens who also without regard to their Laws and times of their Elections followed him by the bare instinct of nature which always intends the best to govern the worst In 2 Cor. 7.13 Thus Chrysostome speaks of Moses that before he led out the people by his hand he declared himself to be their captain by his deeds it was foolishly demanded by the Hebrew who made thee a ruler facta vides de nomine facis controversiam thou seest his deeds and dost thou well then to cavil about names as if a patient being first cut and so cured of some desperate Disease should cavil with his Physician and demand of him Who made him a Physician or who gave him authority to cut him To whom the Physician might very well answer Ars mea Morbus tuus My friend it was my skill and thy Disease that made me to cut thee So might Moses have answered It was thy cruelty and manifest injustice that made me a Judge and a Ruler To govern well is not a dignity only but an art nay the greatest of arts Sapiens nunquam privatus est A wise man is never a private man as Cicero proves by the example of Nasica Neither is he unius anni Consul a Magistrate for one year only as Horace speaks of Lollius Yet notwithstanding is not this liberty to be exercised in any place but where the Laws of the Commonwealth do permit it For these natural qualifications as I have often said infer no right though they give us a capacity for it Concerning this natural Right the opinion of Democritus was this Concerning the killing or not killing of living Creatures the matter stands thus If those Creatures either do or would hurt us whosoever kills them shall be innocent nay he that kills them doth much better than he that spares them And presently after he saith As for those Beasts which unjustly annoy us it is altogether lawful for us to kill them all And surely it is not improbable that good men before the Flood did live much after this manner before God had declared his will of converting the rest of the Beasts to serve a Mans
follow that sense that hath the least of doubt in it but especially when the dispute ariseth between two Sovereign Princes who having no common Judg between them may be presumed to restrain the power of Arbiters within those strict Rules of Justice which Judges are usually confined to XLVIII Arbiters not to judg of possessions Where this also is to be noted That such as are chosen Arbiters by a People or such as have the Sovereign Power over them ought to give Sentence on the principal matter but not to intermeddle with Possessions For the judgment of these belong to the Civil Law By the Law of Nations Dominion follows the Right of Possession and therefore till the Cause be tryed no innovation ought to be made as well to avoid prejudice as because the recovery of things out of possession is difficult Wherefore Livy in his Book of Pleas between the Carthaginians and Massinissa hath this Observation Legati jus possessionum non mutarunt Ambassadours do never alter the Right of Possessions XLIX What the power is of a pure Dedition There is also an assuming of an Arbiter but of another kind when a man yields himself up to the judgment of his very Enemy which is a pure and absolute surrender whereby he makes himself a Slave and gives his Enemy Sovereign Power over him Thus the Aetolians in Livy were demanded in the Senate Whether they would submit themselves to the Judgment of the Romans This was the advice of L. Cornelius Lentulus Lib. 37. as it is recorded by Appian about the end of the second Punick War Lib. 14. concerning the affairs of Carthage Let the Carthaginians saith he submit themselves to our censures as the Vanquished usually do and as many others have formerly done then we shall see how thankful they will be for what we shall give them Neither shall they call this a League for the difference between a League and this is great For if we enter into a League with them they will never want some plausible excuse to break it alledging That they had been first injured in some part of it for seeing that many words in that League will admit of a doubtful interpretation they can never want a pretence that have a mind to cavil But when we shall have disarmed them as Prisoners and made them our Slaves then at length they will perceive That they have nothing that is properly their own and then they will despond and whatsoever we shall afterwards give them they will thankfully accept of as of a mere gratuity But here also we must distinguish between what the Conquered ought to suffer what the Conquerour by the Right of his Conquest may do and lastly what most of all becomes him The Conquered Party having yielded themselves ought to suffer whatsoever the Conquerour will impose upon them for being perfectly inslaved if we respect that Right of War that is external they have nothing but what may be taken from them even their lives and personal liberty much more their Goods whether they be those that are publick or those that belong unto them as private men Lib. 37. The Aetolians saith Livy having yielded themselves to the will of their Enemies dreaded nothing more than corporal punishments Above Book 3. Chap. 8. Sect. 4. And as we have elsewhere said When all things are surrendred it rests in the choice of the Conquerour what he will take away and wherein and how far he will punish the Conquered Pertinent whereunto is that of Livy It was the ancient custom of the Romans when they had to do with a people or a King with whom they were not joined in friendship either by League or by equal Laws not to use their Sovereign Power over them as being at peace with them until they had first delivered up unto them all things both Divine and humane and until they had received their Hostages taken away their Armes and had placed Garrisons in their Cities Yea and sometimes they that thus surrendred themselves might be killed as we have elsewhere shewed * Above Book 3. Chap. 11. Sect. 18. L. The Duty of a Conqueror towards the Conquered But the Conquerour that he may do nothing unjustly ought in the first place to take care that no mans life be taken from him unless it be for some crime that deserves death As also that no mans Goods be taken from him unless it be by way of a just punishment For in the Conqueror there is nothing so honourable nor in some Cases so necessary as in this manner to extend his clemency and liberality to the Conquered so far forth as it may stand with his own security See Book 3. Chap. 15. in finem When Cyrus had subdued the Assyrians he comforted them by this assurance That their Condition should be the same that before it was their Houses Lands Wives and Children they should freely enjoy and in Case any personal injuries were offered them both he and his would readily defend them Admirable are the effects of those Wars that are concluded with a general pardon Thus did Nicholas the Syracusian plead in Diodorus in the behalf of those that had yielded to mercy They have saith he yielded themselves and given up their Armes relying wholly on the Conquerours clemency Quare indignum foret eos decipi spe nostrae humanitatis Wherefore it would be an everlasting dishonour to us to suffer them to be deceived in their confidence they have of our clemency And a little after Who amongst all the Grecians did ever inexorably condemn them to punishment who yielded themselves to the Conquerours mercy Appian brings in Octavius Caesar thus bespeaking L. Antonius when he came to surrender himself If the end of thy coming hither had been to purchase thy Peace only thou hadst found me not only a Conquerour but such a Conquerour as was throughly incensed by the wrongs thou hast done but since thou art come to yield thy self thy Friends and thine Armes to our discretion thou hast appeased mine anger and taken away from me that power I had to have enforced thee to have accepted of what Conditions I pleased For I am now to weigh not so much what thou deservest to suffer as what becomes me to grant wherefore I shall chuse rather to consult mine own honour by forgiving than to gratifie my passion by a just revenge We do often meet with these expressions in the Roman Stories namely That the Conquered do yield themselves sometimes to the faith sometimes to the mercy or clemency of the Conqueror As in Livy To those Ambassadours that were sent from the Neighbour Provinces to surrender their Cities to the faith of the Romans he gave a gracious Audience So in another place speaking of King Perseus he saith Paulus earnestly labouring that he might be permitted to surrender both himself and whatsoever was his to the faith and clemency of the People of Rome Whereby nothing else is to be
new Covenant there is no use at all to be made of the Old As to this we are of a contrary Judgment as well for what we have already said as because such is the Nature of the New Law that whatsoever is commanded in the Old appertaining to Virtue and good manners the same or much greater is commanded in the New And after this manner do the ancient Christian Writers make use of the Testimonies drawn from the Old Testament But to the right understanding of the sence of the Books of the Old Testament we have no small help from the Hebrew Writers especially those who were throughly instructed in the language and manners of their own Country The New Testament I do also make use of to instruct Christians in what is lawful for them to do which cannot be elsewhere learned which notwithstanding contrary to what some have done I have distinguished from the Law of Nature A greater sanctity requir'd by the Gospel thâ—n by the Law of Nature Precepts distinguished from Counsels Being most assured that in that most holy Law a greater sanctity is commanded than that which the Law of Nature doth of it self require Neither have I omitted to observe what is rather commended unto us than commanded that so we may understand that to do contrary to that which is commanded is impiety and renders us lyable to punishment but eagerly to aspire to that which is most excellent as it argues a noble and generous mind so shall it not want its due reward Canons Ecclesiastical Synodical Canons if they be right are nothing but Collections drawn from the general sayings of the Divine Law and fitted to particular cases which do usually happen These also do either point out what the Divine Law doth enjoyn or exhort us to that which God commends unto us And this is the office of the true Christian Church faithfully to traduce unto others what God hath delivered unto her and after the same manner as they were delivered But even the Customs used among those ancient Christians and that were worthy of that Great Name being either generally received or praised are deservedly to be ranked with the Canons The Fathers After these the second Authority is of those who were in their times famous among Christians for either their pious lives or doctrines and were as yet never noted for any great error For even these men also ought to be had in good esteem as to what with great asseveration they affirm and have found out to be true in the interpretation of such places of Scripture as seem to be obscure And the more by how much both their consent is the greater and they draw nearer to the times of the first purity long before any Supremacy was usurped or any Sects or Factions known to adulterate the Primitive Truth The School-men that succeeded to these The School-men do often shew the strength of their Wits But they happened to live in very unhappy times being altogether ignorant of good Arts No marvel then if amongst many things which are in their Writings Commendable there are some that are Pardonable And yet when they agree in matters of Morality they seldome err being very quick-sighted to discern what in the sayings of other men was to be reproved And yet even in this very endeavour of theirs to defend their diverse opinions they furnish us with great examples of Modesty whilest they contend among themselves with Reasons and Arguments and not as the Custome now begins to deface our Books with Reproaches the spurious issue of weak and effeminate minds There are three sorts of those that profess the knowledge of the Roman Laws The first are they whose pains appear in the Pandect The sorts of Lawyers 1. The Pandect 2. Codes 3. Novel Constitutions the Codes of Theodosius and Justinian and in the Novel Constitutions The Second sort are they who succeded to Irnerius as Acursius Bartolus and many more who at that time governed the Courts of Justice The Third sort are of those who joyned Humane Learning with the study of the Laws To the first I confess I owe much as well for the solidity of their Arguments to prove that which appertains to the Law of Nature as also for the Testimonies they often give both to that Law and not much less to that of Nations yet so that even they as well as others do often use these names promiscuously misapplying that to the Law of Nations which is in force but among some people only and that not by any Consent or Agreement but because they take it one from another by Imitation or by Chance Yea and even those things that belong truly to the Law of Nations they oft-times handle confusedly and indiscreetly with those that belong to the Roman Laws as appears by the Chapters of Captives and Postliminy To distinguish these I have taken great pains The Second sort Second sort regardless of the Divine Law and Ancient Histories endeavour to determine all Controversies between Kings or People out of the Roman Laws assuming some things from the Ecclesiastical Canons But these also were often frustrated by the infelicity of the times so that they could never attain to the right understanding of those Laws although otherwise acute enough to search into the Nature of what was Good and Right Whereby they often became good Law-makers though not so good Expositors of Laws already made These therefore are then to be hearkened unto when they give Testimony to such a Custome as now passeth for the Law of Nations Third sort But of those of the Third Form who confine themselves wholly within the bounds of the Roman Laws and never or at least very seldome expatiate into that Law that is common there is but very little use to be made to our purpose These men having joyned their School-subtilties with the knowledge of the Laws and Canons abstain not from the deciding of all Controversies between Kings and People Amongst whom are two Spaniards namely Covarruvia and Vasquius This latter using great Boldness the former much more Modesty and not without sound Judgement The French chuse rather to intersert History with the study of the Laws The chief whereof are Bodine and Hottoman The former in a continued Treatise the latter in some scattered Questions whose Judgements and Reasons will often supply us with matter to find out the Truth Three things the Author proposeth to himself especially In this whole Treatise I chiefly propose to my self Three things First To make the Reasons of my Definitions as evident as I can Secondly To dispose the things I am to treat of into a certain Order and Method And Thirdly Clearly to distinguish those things which seem to be the same but are not I have purposely abstained from that which belongeth to another Treatise As from those things which teach us what is of Common use to be done because these have an Art
that is They that lay aside their Arms when there is no persecution that threatens them for by the word Peace the Primitive Christians understood only a vacancy from persecution as appears by Cyprian and others Nostrae paci quod est bellum quam persecutio As to the peace of the Church What greater War can there be than persecution Tertul. So St. Cyprian Cyprian when God began to give peace unto his Church That is when he freed it from Persecution Next we have the example of Julians Souldiers who were no mean proficients in the School of Christianity for they were ready to testifie their faith in Christ by the effusion of their blood of whom St. Ambrose speaks thus The Emperor Julian though an Apostate yet had many Christians that fought under his Banner to whom when command was given to march against the enemy in defence of their Country they readily obeyed But being commanded to march against the Christians then they acknowledged no Emperor but the King of Heaven Such also were long before them the Thebaean Legion which in the Reign of the Emperor Dioclesian was converted to the Christian Faith by Zabda the Thirtieth Bishop of Jerusalem which Legion did afterwards leave behind them a singular pattern to all future Generations of Christian patience and constancy whereof I shall have occasion to speak more at large hereafter It shall suffice in this place to rehearse that excellent speech they made to the Emperor which doth both solidly and summarily represent unto us the Duty of a Christian Souldier Against any Foreign Power we freely offer our hands which yet we dare not embrew in the blood of Innocents Our Arms which have been long practised in suppressing vice and in vanquishing Foes never yet knew how to oppress the Righteous or to cut the Throats of our Neighbours and fellow-Citizens When first we engaged in War we remember it was to protect and not to destroy them we have hitherto fought for Justice for Piety for the defence of Innocence For these prizes we have slighted all dangers we have fought for the defence of our faith which should we have broke with God How canst thou O Emperor expect that we should keep with thee Basil also gives this Testimony of thâ— Primitive Christians That their Ancestors never accounted that execution that was done in War as Murther but alwaies held them excused that fought for the defence of Chastity and of Piety CHAP. III. War divided into Publick and private The Supream Power explained I. War divided into Publick and Private II. That by the Law of Nature even after Tribunals were erected all Private War was not unlawful proved III. No nor by the Evangelical Law The Objections answered IV. Publick War divided into that which is solemn and that which is less than solemn V. Whether a War made by the Authority of a Magistrate not having Supream Power be Publick and when VI. Wherein the Civil Power consists VII What Power is Supream VIII The opinion that the Supream Power is ever in the people refuted and the Arguments answered IX As also that the subjection between King and people is mutual X. Cautions for the right understanding of this Question whereof the first is to distinguish between the likeness of words in things that are unlike XI The second is to distinguish between the Right and the manner of holding that Right XII That some Empires are held fully that is with a Power to alienate them XIII That others are held not so fully XIV That some though not Supream yet are held fully that is with a Power to alienate them XV. The said distinction appears by the differences in assigning Protectors in Kingdoms XVI That the Power ceaseth not to be Supream by a promise even of that which is not due by the Laws of either Natural or Divine XVII The Soveraign power is sometimes divided into parts subjective and potential XVIII Yet it cannot be well concluded that the power is not Supream because Kings will not have their Acts to be firm unless approved of by some Assembly XIX Some other examples not to be drawn hither XX. True examples of the Supream Power divided XXI He that is tyed up by a League on terms unequal may yet retain the Supream Power XXII So may he that pays Tribute XXIII So may he that holds it from another in Fief XXIV A mans right may be distinguished from the exercise of that Right with several examples I. War divided THE first and most necessary division of War is this That some are Publick and some Private and some mixt Publick is that which is made by publick Authority and Private is that when the Authority is so and mixt when it is in part Publick and in part Private and First Let us treat of that which is Private as being most ancient That by the Law of Nature some Private War may lawfully be waged is as I suppose sufficiently proved by what hath been already said where it was shewed That to repel force with force was no ways repugnant to Natural equity But the Question will be Whethersince the erection of Courts of Justice it be now lawful to repel force with force Whereunto I answer That although Courts of Judicature were not instituted by Nature but by humane Authority yet doth natural reason and Common equity instruct us That it is more agreeable to common Honesty and to the conservation of peace and tranquillity amongst men that all differences should be publickly scanned and determined by persons that are unconcerned rather than by them who being blinded with self-love do oft-times mistake right for wrong and will do that only which seems good in their own eyes Non est singulis concedendum quod per magistratum publice possit fieri Paulus Juris cons ne occasio sit majoris tumultus faciendi That is not to be granted to every private man that may be done publickly by a Magistrate lest for every petty injury men run into Tumults And hence it is Cassiod l 4 Var. Ep. 4. saith King Theodorick That so great a reverence is due to the Law that no man ought to revenge himself with his own hand or by the suggestion of his own passions For if all differences may be determined by plan force wherein would a calm peace differ from the tumults of War And therefore the Laws call that Force When any man takes that which is his due with his own hands without the determination of a Judge II. That Tribunals being erected all war is not unlawful Most certain it is That the Licence which before Tribunals were established publickly was permitted is since much restrained And yet in some places the same Licence still remaineth namely where Judgment cannot be had against offenders For the Law in prohibiting a man to take his own unless it be judicially doth tacitely imply that it be in such a place and at such a time where an
or broken The second is The choice of fit Persons for Magistrates And the third is A power to determine all Controversies Dionysius Halicarnassensis makes the Civil Power to consist in these three things 1. The Creation of Magistrates 2. The Legislative Power And 3. The power of concluding either Peace or War And elsewhere he adds this fourth namely A power to determine all differences by passing definitive Sentences and by and by he adds The care of setling Religion and the power of calling Assemblies But he that would rightly divide this power so that nothing be either defective or redundant may do it thus He that rules in any Common-wealth doth it partly by himself and partly by others What he doth by himself concerns either Universals or Particulars what concerns Universals are the making of Laws or the abrogating of them and these are either sacred so far forth as concerns the Civil State or prophane This Aristotle calls the Art of building up a City Those singulars about which this power is conversant are either things directly Publick or Private yet such as are in order to Publick Those that are directly Publick are either Actions as Peace War Leagues or Things as Taxes Customs Tributes and such like Wherein also is comprehended that eminent Dominion that every Common-wealth hath over the Persons and Goods of its own Subjects so far as concerns the publick safety And this Art Aristotle terms by its general name Political that is Civil or the Art of Counselling and well Advising Or as I said they are things private namely things controverted between singular persons the determination whereof doth much conduce to publick peace and safety and this Art Aristotle terms judicial But those things which he dispatcheth by another he doth either by Magistrates or by Procurators among whom we are to place Embassadors and Envoyes And in these things do principally consist the Civil Power VII Power Supreme what it is That we call the Supreme Power whose Acts are not subject to the power of another nor can by any Humane Authority be made void when I say by another I exclude him who hath this Supreme Power in whose power it is to change his own Will so also I exclude his Successor who hath the same right and so the same power and no other This therefore is that which we call the Supreme Power In whom it is Now let us see in whom it rests the Subject wherein this Soveraign Power remains is either common or proper As the common Subject wherein Sight rests is the Body the proper Subject is the Eye so of this Supreme Power the common Subject is the City or Common-wealth which as I said before is a perfect company or society of men Hence then we exclude those who have given themselves up to the power of another people as those Nations that were conquered by the Romans were no longer called Kingdoms but Roman Provinces For such a people cannot be called a City in that sence wherein we now take the word but the unworthy Members of that City that conquered them as Servants are the meanest Members of a Family Again It sometimes happens that of divers people there is but one and the same head and yet every one of these people do constitute one perfect Society for it is not so in the Moral as it is in the Natural Body where it is not possible that one Head should govern two Bodies For in the Moral one and the same person diversly considered may be the head of divers and distinct Bodies whereof this is a most infallible sign for whensoever the Regal Family of him in whom the Soveraign power over divers Nations was united shall be extinct the power it self separates and each reverts to its own people So it may fall out that many Cities may be linkt in so strait a confederacy that as Strabo speaks they may constitute but one well governed Body and yet doth each of them still retain the state of a perfect City as is well observed both by others and also by Aristotle in divers places so then the common Subject wherein this power resides is a City so understood as I have already exprest But the proper Subject of this power is either one person or many according to the several Laws Customs and Manners of every Nation VIII Not in the people And here first we must disclaim their opinion who affirm the Supreme Power to be every where and without any exception in the People and that so fully that it is in their power either to inforce or to punish their King if he govern amiss What great mischiefs this opinion being once fixed in the minds of the Rabble already hath and hereafter may introduce there is no wise man but may easily discover This proved For confutation of which opinion we offer these Arguments to the more ingenious Reader By all the Laws both of the Hebrews and Romans it will appear Exod. 21.6 Gell. l. 21. c. 7. that it is lawful for every man that hath power over himself to bind himself as a Servant or an Apprentice to whom he pleaseth And why then should it not be as lawful for any people naturally free to give themselves up to any one person or Society to be governed wholly by them without retaining any part of their liberty to themselves Neither will it suffice to say this is not to be presumed for the question is not what in a doubtful case is to be presumed but what by Right may be done and it is as vain and frivolous to urge the inconveniences that may arise from hence No form of Government without some Inconvenience For there is no form of Government whatsoever be it never so well fansied and framed in the Brain but upon the exercise of it will produce some inconveniences and some dangers with it so that we must do what we can resolve to take the advice of the Comedian Aut haec cum illis sunt habenda aut illa cum his mittenda sunt either to accept of the inconveniences with the conveniences or to renounce both and so live like Beasts without Government which is the greatest inconvenience of all As there are several kinds of Trades or Callings for men to live by some better some worse and every man is permitted to chuse which he pleaseth so there being several sorts of Government it is in the peoples choice which of them they will be governed by Neither is the right to Govern to be measured by the excellency of the Form whereof divers men judge diversly but by the freedom of their own will What Cato sometimes said of Laws may as well be said of Governments There are none so perfect but have some defects But what the same Cato observed is very true It is sufficient to commend any Government that it produceth good effects in the general and profiteth the greater part of mankind Now as
matters to be judged by the Army but in times of peace by the People The Kings power availed nothing farther than his Authority reached There is in another place of the same Author another sign of the same mixture mentioned namely this The Macedonians Curt. lib. 8. saith he ordained that according to the custome of their Nation Their King should never hunt on Foot but in the company of some of his select Friends or Princes The like doth Tacitus write of the Gothones That they were under a stricter Government than others of the German Nation yet not altogether without liberty For whereas he had before described a Principality thus That it governed rather by a Perswasive than Coercive Power He now describes a Kingdom in these words When saith he One person rules without any limitation or exception and that not by entreaty but by absolute command Eustathius upon the Sixth of Homer's Odysses describing the Common-wealth of Corcyra saith That it was a kind of mixt Government having something of Kingly and something of an Aristocratical Government Laonicus Chalcocondylas makes mention of the like Government in Hungary and in England in Arragon and in Navarr where the Magistrates are not created by the King nor are any Garrisons imposed on them against their will nor any thing commanded them by their King contrary to their Laws and Customs Not much different was the Government of the Romans in the time of their Kings For although almost all publick affairs were then transacted by the Regal Power Romulus saith Tacitus governed us as he pleased And it is plain That in the Infancy of their City all power was in the King saith Pomponius yet even at this very time were some few fragments of that power reserved in the people if we may give credit to Dionysius Halicarnassensis but if we had rather believe the Romans in some Cases Appeals might be made from the King unto the people Ep. 100 as Seneca collects out of Cicero's Books de Rep. as also out of some Pontifical Books and Fenestella By and by after Servius Tullius being advanced to the Empire not so much by Right as by popular Favour did much more impair the Majesty of the Kingdom For to gratifie the people for their kindness he ordained some Laws Taâ—it l. 3. whereunto the Kings themselves stood obliged No marvel then if Livy puts this only difference between the power of the first Consuls and of Kings that it was but Annual The like mixture of Popular and Aristocratical Power there was in Rome iâ— the Vacancy of their Kings Viâ— Camilli and in the times of their first Consuls For in some things and those of moment what ever the people commanded was established as a Law if the Fathers were made the Authors lib. 5. But as Plutarch observes The People had no Right either to make a Law or to command any other thing unless proposed by the Authority of the Senate The like Mixture of Government Chalcocondylas notes to have been in the Common-wealth of Genoua in his time But afterwards in Rome the power of the people increasing though the Fathers began and proposed as anciently they were wont to do yet as Livy and Dionysius observe the people would decree what they pleased But yet even after this there remained some of this Mixture whilst as the same Livy speaks the Soveraign Power was in the Patricians that is the Senate and the Auxiliary power in the Tribunes i. e. the Plebeians who had a Right to either forbid or intercede when they pleased And of this mixt Government between Democracy and Aristocracy Isocrates would have the Common-wealth of Athens to consist in the time of Solon Now these things being premised let us examine some doubtful Questions which do frequently arise about this matter XXI A Confederate on unequal terms may have the Supream Power The first thing that falls under dispute is this Whether that Nation can be said to have Supream Power that is in League with another Nation upon terms unequal Where by Unequal I do not mean where the Confederate Nations are of Unequal power as when the City Thebes made a League with the Persian Monarch in the time of Pelopidas or the Romans with the Massilians and afterwards with Massanissa Neither do I mean such a League as implyes some one transient Act that seems dishonourable as when an Enemy paying the Charges of the War or performing some such thing is reconciled and becomes a Confederate But where by the express Articles of the League there is some permanent and lasting Prelation given from one to the other As when one Nation is bound to maintain the honour of another as in that League between the Aetolians and the Romans whereby the Aetolians were bound to use their endeavours to preserve as well the dignity as the safety of the Roman Empire which dignity is sometimes called the Majesty and by Tacitus the Reverence of the Empire which he thus expresseth Though they are separate from us in place and live within their own bounds Liâ— 4. yet in their minds and understanding they act with us So likewise Florus As for the rest of the Nations though free yet perceiving the vastness of their Empire they did highly reverence the people of Rome being Conquerors of so many Nations Whereunto we may also refer some Rights due to them that undertake the Patronage and defence of others And those Rights the Mother Cities have over smaller Cities and Colonies amongst the Graecians For such Colonies saith Thucydides enjoy the same Right of Liberty as their Mother Cities do Colonies But yet they owe a Reverence to their Mother City and ought to send her presents as an acknowledgement of the honour they have for her Livy concerning that ancient League of the Romans who had received all the Rights of Alba and of that which the Latines derived from Alba saith In that League the Roman State was superiour Andronious Rhodius following Aristotle did well observe that in contracting amity between Nations of equal power Nic. 9.18 The weaker should give the greater honour and the stronger the greater succours It was but reasoble that the weaker should give the greater honour and the stronger afford the greater succours Proculus in his Answer to this Question we very well know namely That that is a Free Nation which is not subject to the power of another although it be comprehended in the League that that Nation shall faithfully uphold the Majesty of the other If therefore a Nation bound by such a Covenant do yet remain free and not subject to the power of another It follows that that Nation doth yet retain its Soveraignty the like may be said of a King For of a free-people and of a King that is truly so there is the same reason Proculus adds further that such a Clause is added in the League to declare that one Nation is superiour to another
the very same words But yet if either for this or for any other cause any injury be offered unto us because it so please him that hath the Soveraign Power it ought rather to be patiently tolerated than by force resisted For although we do not owe an active obedience to such Commands of Princes yet we do owe a passive though we ought not to violate the laws of God or of Nature to fulfil the will of the greatest Monarch yet ought we rather patiently to submit to whatsoever he shall inflict upon us for not obeying than by resistance to violate our Countries peace The best and safest course we can steer in such a case is either by Flight to preserve our selves or resolvedly to undergo whatsoever shall be imposed on us II. War against Superiors as such unlawful And naturally all men have a right to repel Injuries from themselves by resisting them as we have already said But Civil Societies being once instituted for the preservation of Peace there presently succeeded unto that Common-wealth a certain greater Right over us and ours so far forth as was necessary for that end And therefore that promiscuous Right that Nature gave us to resist the Common-wealth for the maintaining of good order and the publick peace hath a right to prohibit which without all doubt it doth seeing that otherwise it cannot obtain the end it proposeth to it self For in case that promiscuous Right of forceable resistance should be tolerated it would be no longer a Common-wealth that is a Sanctuary against Oppression but a confused Rabble such as that of the Cyclops whereof the Poet thus Where every Ass May on his Wife and Children Judgment pass A dissolute Company where all are speakers and no hearers Like unto that which Valerius records of the Bebricii Who all Leagues and Laws disdain And Justice which mens minds in peace retain Salust makes mention of a wild and savage people living like Beasts in Woods and Mountains without Laws and without Government whom he calls Aborigines And in another place of the Getuli who had neither Laws good Customs nor any Princes to govern them But Cities cannot subsist without these Generale pactum est societatis humanae regibus obedire All humane Societies saith St. Augustine unanimously agree in this to obey Kings So Aeschylus Kings live by their own Laws subject to none And Sophocles They Princes are obey we must what not To the same Tune sings Euripides Folly in Kings must be with patience born Whereunto agrees that of Tacitus Principi summum rerum arbitrium Dii dederunt c. Subditis obsequii gloria relicta est God hath invested a Prince with Soveraign Power leaving nothing to Subjects but the glory of Obedience And here also Sen. Things base seem Noble when by Princes done What they Impose bear thou be 't right or wrong Wherewith agrees that of Salust Impunè quid vis facere hoc est Regem esse To do anything without fear of punishment is peculiar to Kings for as Mark Anthony urged in Herod's case If he were accountable for what he hath done as a King he could not be a King Hence it is that the Majesty of such as have Soveraign Power whether in one or more is senced with so many and so severe Laws and the licentiousness of Subjects restrained with such sharp and exquisite torments which were unreasonable if to resist them were lawful If a Souldier resist his Captain that strikes him An Officer striking must not be struck again and but lay hold on his Partisan he shall be cashiered but if he either break it or offer to strike again he shall be put to death for as Aristotle observes If he that is an Officer strike he shall not be struck again III. The unlawfulness of making war against our Superiors proved by the Jewish Law By the Hebrew Law He that behaved himself contumaciously against either the High-Priest or against him who was extraordinarily by God ordained to govern his people was to be put to death and that which in the eighth Chapter of the first Book of Samuel is spoken of the right of Kings to him that throughly inspects it is neither to be understood of their true and just rights that is of what they may do justly and honestly for the duty of Kings is much otherwise described Deut. 8.11 nor is it to be understood barely of what he will do for then it had signified nothing that was singular or extraordinary Jos 1.18 1 Sam. 8.11 Deut. 17.14 for private men do the same to private men But it is to be understood of such a fact as usurps or carries with it the priviledge of what is right that is that it must not be resisted although it be not right for Kings have a Right peculiar to themselves and what in others is punishable in them is not That old Saying Summum jus summa injuria Extreme right is extreme wrong is best fitted to the case of Kings whose absolute power makâ—s that seem right which strictly taken is not so There is a main difference between Right in this sence taken Right differenced from Just and Just for in the former sence it comprehends whatsoever may be done without fear of punishment but Just respects only things lawful and honest And though some Kings there be who are what Servius in Cicero's Philippicks is commanded to be magis Justitiae quam Juris Consulti More regardful of their honour and duty than of their power and prerogatives Yet this doth not diminish their Soveraign Right because if they will they may do otherwise without the danger of being resisted And therefore it is added in that place of Samuel before cited That when the people should at any time be thus oppressed by their Kings as if there were no remedy to be expected from men they should invoke his help who is the Supream Judge of the whole Earth So that whatsoever a King doth though the same done by an inferiour person would be an Injury yet being done by him is Right As a Judge is said Jus reddere to do right though the sentence he gives be unrighteous IV. By the Gospel Law When Christ in the New Testament commanded to give Caesar his due doubtless he intended that his Disciples should yield as great if not a greater obedience as well active as passive unto the higher Power than what was due from the Jews to their Kings which St. Paul who was best able to Interpret his Masters words expounding Rom. 13. doth at large describe the duty of Subjects Rom. 13.2 charging those that resist the power of Kings with no less Crime than Rebellion against Gods Ordinance and with a Judgement as great as their sin For saith he They that do so resist shall receive unto themselves damnation And a little after he urgeth the necessity of our subjection Not altogether for fear but for Conscience as knowing that He
Supreme seem to introduce such a state of things as the Poets fansied to have been in Heaven before Majesty was thought on when the lesser Gods denyed the Prerogative of Jupiter But this order or Subordination of one to another is not only approved of by common experience as in every Family the Father is the head next unto him the Mother then the Children and after them the Servants and such as are under them So in every Kingdom Each power under higher powers are And All Governours are under Government To which purpose is that notable saying of St. Augustine Grat. c. 11. â— 3. Qui resistit Observe saith he the degrees of all humane things if thy Tutor enjoyn thee any thing thou must do it yet not in case the Proconsul command the contrary Neither must thou obey the Consul if thy Prince command otherwise For in so doing thou canst not be said to contemn Authority but thou chusest to obey that which is highest Neither ought the lesser powers to be offended that the greater is preferred before them For God is the God of order And that also of the same Father concerning Pilate Ad Johan Because saith he God had Invested him with such a Power as was it self subordinate to that of Caesar ' s. But it is also approved of by Divine Authority 1 Ep. 2.1 For St. Peter enjoyns us to be subject unto Kings otherwise than unto Magistrates To Kings as Supreme that is absolutely without exceptions to any other commands than those directly from God who is so far from justifying our resistance that he commands our passive obedience But unto Magistrates as they are deputed by Kings and as they derive their Authority from them Rom. 13. And when St. Paul subjects every soul to the higher Powers doubtless he exempts not Inferiour Magistrates Neither do we find amongst the Hebrews where there were so many Kings utterly regardless of the Laws both of God and Men any Inferiour Magistrates among whom some without all question there were both Pious and Valiant that ever arrogated unto themselves this Right of resisting by force the Power of their Kings without an express command from God who alone hath an unlimited power and jurisdiction over them But on the contrary what duties Inferiour Magistrates owe unto their Kings though wicked Samuel will Instruct us by his own example who though he knew that Saul had corrupted himself 1 Sam. 15 3â— and that God also had rejected him from being King yet before the people and before the Elders of Israel he gives him that reverence and respect that was due unto him And so likewise the state of Religion publickly profest did never depend upon any other humane Authority but on that of the King and Sanhedrim For in that after the King the Magistrates with the people engaged themselves to the true worship and service of God it ought to be understood so far forth as it should be in the power of every one of them Nay the very Images of their False Gods which were publickly erected and therefore could not but be scandalous to such as were truly Religious yet were they never demolished so far as we can read of but at the special command either of the people when the Government was Popular or of Kings when the Government was Kingly And if the Scriptures do make mention of any violence sometimes offered unto Kings it is not to justifie the fact but to shew the equity of the Divine Providence in permitting it And whereas they of the contrary perswasion do frequently urge that excellent saying of Trajan the Emperour who delivering a Sword to a Captain of the Praetorian Band said Hoc pro me utere si rectè impero si malè contra me Vse this Sword for me if I govern well but if otherwise against me We must know That Trajan as appears by Pliny's Panegyrick was not willing to assume unto himself Regal power but rather to behave himself as a good Prince who was willing to submit to the Judgement of the Senate and people whose decrees he would have that Captain to execute though it were against himself Whose example both Pertinax and Macrinus did afterwards follow whose excellent Speeches to this purpose are recorded by Herodian The like we read of M. Anthony who refused to touch the publick Treasure without the consent of the Roman Senate VII Of resistance in case of inevitable necessity But the Case will yet be more difficult whether this law of not resisting do oblige us when the dangers that threaten us be extreme and otherwise inevitable For some of the Laws of God himself though they sound absolutely yet seem to admit of some tacite exceptioâ—s in cases of extreme necessity For so it was by the wisest of the Jewish Doctors expresly determined concerning the Law of their Sabbath in the times of the Hasamonaeans Whence arose that famous saying among them Periculum animae impellit Sabbatum The danger of a mans life drives away the Sabbath When the Jew in Synesius was accused for the breach of the Sabbath he excuseth himself by another Law and that more forcible saying We were in manifest jeopardy of our lives When Bacchides had brought the Army of the Jews into a great strait on their Sabbath day placing his Army before them and behind them the River Jordan being on both sides Jonathan thus bespake his Souldiers Let us go up now and fight for our lives for it standeth not with us to day as in times past 1 Macc. 9.43 44 45. Which case of necessity is approved of even by Christ himself as well in this Law of the Sabbath as in that of not eating the Shew-bread And the Hebrew Doctors pretending the authority of an Ancient Tradition do rightly Interpret their Laws made against the eating of meats forbidden with this tacite exception Not that it was not just with God to have obliged us even unto death but that some Laws of his are conversant about such matters as it cannot easily be believed that they were intended to have been prosecuted with so much Rigour as to reduce us to such an extremity as to dye rather than to disobey them which in humane Laws doth yet further proceed I deny not but that some acts of vertue are so strictly enjoined that if we perform them not we may justly be put to death As for a Sentinel to forsake his station But neither is this to be rashly understood to be the Will of the Law-giver Nor do men assume so much Right over either themselves or others unless it be when and so far forth as extreme necessity requires it For all humane Laws are so constituted or so to be understood as that there should be some allowance for humane frailty The right understanding of this Law ☜ of resisting or not resisting the highest Powers in cases of inevitable necessity seems much to depend upon the Intention of
is properly ours may be common to others Let us now examine Whether in what is properly ours there may yet remain a Right in Common to others Which question may by some be thought strange considering that Property seems to swallow up all Right which was at first held in Common But it is not so for our better understanding whereof we must look back to the true meaning of those who first introduced particular dominion which may be presumed to be such as did as little as might be recede from natural equity For if even our written Laws oblige us but to a Quatenus fieri potest To what in natural equity may be done as appears by our frequent Appeals from our Statute and Common Laws unto our Courts of Chancery much more may our Customes admit of such an exposition which are not fitted to Words and Syllables Hence then it follows that in cases of extreme necessity that ancient Right of using every particular mans goods as if they remained yet in Common stands in force For as in all humane Laws so in this very Law of Dominion cases of absolute necessity are generally excepted Hence it is that in Navigation In Navigation If the Common stock of Victuals be spent what every particular man hath is held as Common So in the case of Fire In the case of Fire If I cannot otherwise avoid it I may pull down my neighbours house to preserve mine own And on the Seas If my Ship fall foul or be intangled with another I may cut their Cables to free my self All which are not Introduced but expounded by the Civil Law But this as Vlpian tells us never holds unless it be in cases of extreme and manifest necessity where this case is added of the blowing up of another mans house to save mine own For even among Divines it is a received opinion That in a time of absolute necessity if a man shall take away from another that without which he that takes it cannot live he doth not commit Theft Not as some think because it is to be presumed that the right owner by the rule of Charity is bound to give it to him that so wants it but that it may be presumed that the reducing of things originally Common into private dominion was to be understood with some grains of allowance in such Cases For if they that first divided such things had been demanded What they would to have been done in such a case they would certainly have been of this mind Necessity saith Seneca the Father being a most benign Patroness to humane fâ—ailty will not be bound up by any Law i. e. Humane or that is made after the manner of Humane Laws Quicquid coegit defendit Whatsoever it commands it also defends saith the same Seneca In a Storm it disburthens the Ship with the loss of the Goods in a Fire it quencheth the stone with the ruine of the Fabrick Philip 11. Necessity is indeed the Law of time Thus Cicero Cassius sâ—â—th he passed over into Syria another mans Province If men might freely enjoy the benefit of our written Laws but these being by Arms supprest into his own Province by the Law of Nature So Curtius In a common calamity every man must bear his portion and be content with the fortune that befalls him VII But not if the necessity be otherwise avoidable But some Cautions ought to be admitted lest this License stray too far the first whereof is this That all ways and means are in the first place to be tryed whether this necessity may be otherwise avoided that so it may appear unto all men that this necessity is extreme As we should first make our application to the Magistrate and try whether he will relieve us then to the owner of the Goods whether we may by entreaty obtain that which we stand in need of Plato would not permit any man to require water from anothers well that had not dug for water in his own grounds usque ad cretam even till he came to chalk but could find none Solon required that he should dig forty Cubits in his own Lands whereunto Plutarch adds Subveniendum necessitati non instruendum pigritiam It is sit that mens necessities should be relieved but not that idleness should be encouraged And it was Xenophon's plea to the Sinopenses Cyr. exped l. 5. Wheresoever we are denyed the common right of buying necessaries there whether from Graecians or Barbarians we will take them by force yet not out of perverseness but necessity VIII Nor if there be the like necessity in the right owner 2. This is not to be allowed if the right owner be prest by the like necessity for when the case it equal Possidentis melior est conditio * Lactant. l. 5. c. 17. The condition of the present Occupant is to be preferred A wise man will rather dye saith Lactantius than be unjust He will not dispossess the Shipwrackt of the plank he bestrides though he might thereby save his own life nor unhorse his wounded Comrade although by betraying his life he might save his own Will not then a wise man saith Cicero being famished with hunger take away meat from him whom he knows to be good for nothing Off. l. 3. No surely for life it self is not dearer unto me than this resolution of mine Nominem ut violem commodi mei gratia Not to injure another to benefit my self So Curtius Melior est causa suum non tradentis quam alienum poscentis For better is his condition that gives not what is his own than his that requires that which is another mans IX Things thus taken are to be restored when we are able Thirdly When the danger incumbent is past restitution is to be made if we are able Some there are that think otherwise being swayed by this argument because he that useth his own right only is not obliged to restitution But to speak truly this right is not his own fully and absolutely but restrained and clog'd with the duty of restitution when that necessity shall cease for such a limited right sufficeth to preserve natural equity against the rigour of absolute dominion X. An example of this right in war Hence we may collect By what Right he that wageth a Just War may lawfully surprise and hold some strong place in a Country that is at peace with him being but weakly guarded that is to say if there be no imaginary but a certain danger that his enemy may possess himself of it and thereby do him an irreparable damage especially if nothing be taken but what is necessary for his own Security As namely the bare custody of the place leaâ—ing the jurisdiction and profits thereof unto the right owner And lastly If it be done with a full purpose to restore even the custody of the place also as soon as the necessity of keeping it for his own indemnity shall cease Livy l. 24.
In legatione The same doth Simplicius testifie The Ancient Roman Laws respecting as well the dignity of the Father as their great pains and care in the education of their children the better to tye them up in the strictest bonds of obedience without exceptions yet as I believe presuming upon their natural assection Et venundandi si vellent Impunè interficiendi parentibus jus dederunt Gave the Parents absolute power either to sell or if they would to kill their own children The like Power given to Parents over their Children by the Persians Aristotle condemns as Tyrannical Which I was therefore willing to insert that so we might the more exactly distinguish between the Natural and Civil Rights of Parents over their Children VIII A Right over persons by consent Of an Husband over his Wife The Right that is gained over persons by consent is gained either by Consociation or by Subjection Of that which ariseth from Consociation the most natural is that of Wedlock wherein all things are Common Yet the Right of Command which is the Prerogative of the Husband as being of the nobler Sex is not Common For he is the head of the Wife as well in Conjugal as in houshold affairs For the Wife is but a part of the Husbands Family And therefore it is the Husbands Right to appoint Laws in his own house But what Power soever it is that is given to the Husband beyond this as by the Hebrew Law the Husband had power to make void all the Vows made by his Wife and by the Laws of some people he had power to sell away all his Wives goods This ariseth not from the Law of Nature but from the voluntary Laws of men And here it is requisite that we enquire into the nature and essence of Matrimony Matrimony what And we find Marriage taken naturally to be nothing else but such a cohabitation of a man with a woman as placeth the Woman as it were under the eye that is under the safeguard of the man For such a Consociation we may observe to be among dumb creatures But because men are governed by reason therefore it is required from the Woman that she be faithful and obedient unto her Husband for Subjection is rationally due to Protection IX Whether the tie of one man to one woman inseparably be by the Natural or Evangelical Law only Surely Nature seems to require no more to the constitution of Marriage than Cohabitation and Protection Neither did the Law of God require more before the publishing of the Gospel For diverse holy men before the Law had several Wives at the same time St. Chrysostome speaking of Sarah saith That it was some comfort against her barrenness to have children by her husband though begotten on her hand-maid Nondum enim talia tunc vetita erant For such things were not as yet forbidden So St. Augustine †De Civit. Dei lib. 16. c 38. De Doct. Christ lib. 4. c. 12. Deut. 21.15.17.16 17. 2 Sam. 14.8 There was then no Law given against the having of many Wives for propagation sake And in another place Erat uxorum plurium simul habendarum tunc inculpabilis consuetudo The Custome of having many Wives at once was then unblameable And even under the Law we find some Precepts given to those that should have many Wives at once And we find it expresly forbidden to their Kings to be excessive in accumulating either Wives or Horses wherefore the Hebrew Doctors upon that place do limit their Kings to eighteen Wives and Concubines and no more And Josephus acknowledges That to have many Wives at once was Mos patrius The Custome of his Countrey Therefore God himself seems to upbraid David For that he had given him his Masters Wives and Concubines Quas justè legitimè habere posset Whom he might justly and lawfully enjoy saith Josephus Ant. Hist l. 17. c. 1. Nor was this knot indissoluble Neither was this knot of Marriage under the Law indissoluble as now it is For we find a prescript Form to him that was willing to put away his Wife Neither was any man forbidden to marry the person repudiated but he only that put her away and the Priest who also is in the same place forbidden to marry a Widow or an Harlot Now whereas Philo and many modern Interpreters Lev. 21.7 do understand this to be meant of the High Priest only by reason of that which follows ver 10. It is evident by that of Ezek. 44.22 That every Priest was thereby forbidden as may also be easily collected from the connexion of this seventh verse with the verses preceding But yet this liberty that was thus given to the woman that was repudiated to become another mans Wife was by the Law of Nature restrained to a certain time after her Divorce to avoid confusion about her issue To prevent which the Jews did require That there should be three months interval Whether a Woman having conceived might marry before delivery The Christian Law between the Divorce and the second Marriages whence arose that question in Tacitus Whether a Woman having conceived might be married before her delivery But the Christian Law hath reduced this as many other things besides to a more perfect rule whereby both he that puts away his Wife unless for the act of Uncleanness and he that marries her that is put away are both pronounced guilty of Adultery And St. Paul who was both his Apostle and Interpreter doth give not only to the Husband the power over his Wives body which he had before under the state of Nature For he that joins himself to a Woman in Marriage in corpus ejus habet dominium hath power over her body saith Artemidorus but to the Wife likewise power over the body of her Husband thereby making the obligation mutual and the transgression on either part equal So Lactantius The Divine Law doth so conjoin two persons in Matrimony that is into one body Inst l. 6. c. 23. on such equal terms that whosoever shall violate this bond or cut asunder this knot shall be reputed an Adulterer And therefore he presently subjoyns By thine own example thou art to teach thy wife Chastity Iniquum est ut id exigas quod ipse praestare non possis It is very unjust to exact that from her which thou canst not perform thy self To the same sense and almost in the same words speaks Nazianzene Being equally bound Quomodo exigis quod non rependis With what Conscience canst thou exact that which thou refusest to pay To the same purpose is that of St. Jerome to Oceanus The Laws of Caesar are one thing and the Laws of Christ another Papinian commands one thing and St. Paul another By the former the Reins of our unbridled lusts are let loose and Adultery only being condemned every where Men are permitted to frequent the Stews and Brothel-houses without restraint Quasi dignitas culpam
Wine and dainty fare the Court inflam'd Of their unbridled Lusts are not asham'd And a little after Cui fas implere parentem Quid reor essenefas Who fears not with his Mother t' lye To him what can be Villany The execrable Custome particularly among the Persians Orat. 20. Dion Prusaeensis prudently attributes to their evil education But here we cannot without wonder pass by that vain conceit of Socrates and Xenophon who could find nothing reprovable in these incestuous Marriages besides the disparity in age whence barrenness or mis-shapen children must necessarily follow For if there were no other reason than this to hinder such Marriages surely it could no more invalid these than the like disparity in years could render other Marriages unlawful But that which is much more worthy of our enquiry is this Whether among men unbyassed by an ill education there be not besides that which as I have said is conceived in the mind and understanding a natural abhorrency even in our affections to commix either with our own parents or with the children issuing out of our own Loyns Some Beasts abhor such Coitions Lib. 5. adv Gent. Hist Animal l. 9. c. 47. especially when we find the like even in some brute beasts For so amongst others Arnobius testifies where speaking of the horrour of such unnatural Coitions he saith Quem non hominibus solis sed animalibus quoque nonnullis natura ipsa subjecit ingeneratus ille communiter sensus Which Nature and common sense have instilled not into men only but into some beasts Aristotle records a notable experiment of this in a Camel who could not be induced to cover his own Dam until his Keeper had covered her head over with an Hood and so deceived him but the Hood falling off whilest he was upon her though he did the act yet remembring what he had done presently after so tore his Keeper that he killed him The like he relates of a generous Colt in Scythia which refused to cover his Dam but being in like manner deceived brake his own neck for very horrour of the fact Nat. Hist Lib. 8. c. 42. The like Stories we read in Pliny of an Horse that for the same cause killed himself and of a Mare that being likewise deluded worried her Keeper to death For saith the Historian these Beasts are not without some knowledge of their own kindred Not much unlike unto this is that of Oppianus in his first Book of Hunting and of Varro in his Second Book and Seventh Chapter de re rustica And to the like purpose is that of Seneca in his Hippolitus Ferae quoque ipsae Veneris evitant nefas Generisque leges Inscius servat pudor Ev'n Beasts themselves do from their Dams refrain And taught by Nature chaster Laws maintain XIII The degrees of Affinity and Consanguinity forbidden Another Question ariseth here concerning the degrees of Affinity and Consanguinity in the cross line especially of those mentioned Lev. 18. For though we should grant that they are not interdicted by the meer Law of Nature yet it is manifest that they are forbidden by the express Will of God And that not only to the Hebrews but to all mankind as may be collected from the very words of God himself to Moses Defile not your selves in any of these things for in all these things the Nations are defiled Lev. 18.24 25 27. Incestuous Marriages forbidden by God to Adam or Noah which I cast out before you and the Land is defiled Therefore do I visit the Iniquity thereof upon it and the Land it self speweth â—ut her Inhabitants Incestuous Marriages forbidden by God to Adam or Noah For if the Canaanites and their Neighbours did sin in all these things and were punished for so doing certainly they had a Law given them which forbad the doing of them Which Law since it was not meerly Natural must needs be given by God either peculiarly to them which is not very probable nor will the words bear that sense or to all mankind either at the Creation to Adam or after the Flood to Noah Now such Laws as were given to all mankind Christ did no wâ—ere abrogate but those only which as an Hedge or Partition wall did separate that Nation from all others Besides Eph. 2.14 1 Cor. 7.25 when St. Paul did so severely censure the Corinthian for marrying his Mother-in-Law as he had no peculiar command from Christ so to do so he useth no other argument to justifie his severity than this That it was reputed unclean even among the profane Gentiles Witness Carondas his Law which branded such Marriages with infamy And that of Cicero in a case not much different from that of the Corinthian Pro A Cluentio For having first laid open the matter of fact and proved the Marriage of the Mother-in-law with her son-in-Son-in-law in detestation of so foul a crime he crys out O mulieris incredibile scelus praeter hanc unam in omni vita inauditum O the incredible wickedness of a Woman and but in this never heard of When King Seleucus had a mind to give his Wife Stratonice to his Son Antiochus Verebatur ne ipsa offenderetur ut re illicita He was afraid saith Plutarch lest she should take offence at it as a thing unlawful For so it was in Virgil's account Thalamos ausum incestare novercae His Fathers Bed with Incest durst pollute Which general detestation of these Incestuous Marriages if it derive not its origine from an immediate dictate of Nature it must necessarily descend by ancient tradition from some precept given by God to Adam or Noah The Ancient Hebrews who herein were no mean Interpreters of the Divine Law and Maimonides who had read and with sound Judgement weighed all they wrote do assign two causes of those Laws concerning Marriages mentioned Lev. 18. The first is The Hebrews assign two reasons of those Laws A certain Natural modesty which will not endure that Parents should mix with their own issue either by themselves or by such persons as either in Blood or Alliance are nearest unto them The Second is for prevention of Fornications and Adulteries which too much Familiarity and daily Conversation without any watchful eye to restrain them may occasion especially if such wanton dalliances may be made good by lawful Marriages Now if we would judiciously adapt these two causes unto those Divine Laws before-mentioned Lev. 18. it will easily appear That in those that are allied in the right line either Ascendent or Descendent for we do not here mention that of Parents with their Children which Natural Reason without any other Law teacheth us to abhor and in those the first degree of the oblique line which because of its immediate descent from the common stock is usually accounted the second degree by reason of that fresh and lively Image of the Parents in the Children The former of the two causes above-mentioned is
altogether discharged of the duty incumbent on him as a Father Nature it self will not admit of such an alienation but yet he may commit his Son to another man to be fed and educated by way of Substitution XXVII What power Lords have over their Slaves The most ignoble of all Subjections is that whereby a man gives himself up to perfect slavery Such were they among the Germans of whom Tacitus speaks That sold themselves for food and rayment And of such there were great numbers among the Graecians who as Dion Prusaeensis notes of Freemen became Slaves and performed their service according to Articles of Agreement Now that we call perfect Bondage which tyes a man during life to perform all manner of work for no other reward but food and cloathing which if it extend it self to whatsoever conduceth to the preservation of Nature is not much to be grieved at For our continual labour is indifferently well recompensed with a constant supply of things necessary for life which they that hire out themselves by the day only do often want This the Stoick Possidonius observed out of Histories that many in ancient times conscious of their own weakness to maintain themselves voluntarily submitted themselves to be commanded by others Constantly performing what they were able and receiving from their Lords whatsoever was necessary for them Like him in Plautus If I were free the charge were mine But being bound that charge is thine XXVIII Whether this power extend to life and death No Lord can have absolute power over the life and death of his Slave if we respect internal Justice For no man can take away the life of another and be guiltless unless it be for some capital crime committed and yet by the Laws of some Nations he that shall kill his Slave for what cause soever is indemnified as Kings are in all Nations by reason of their vast and unlimited power For as Seneca notes If a Servant dare not plead with his Master for fear of suffering the worst of torments De benef lib. 3. c. 22. no more dare Subjects with their Prince nor Soldiers with their General who have all of them equal Right though under unequal Titles No Master then hath a just power to injure his Slave but only as That is sometimes improperly called Just which being done is not punishable Such a Right did Solon give to Parents over their own Children and so did the ancient Roman Laws witness that of Sopater It was lawful for him being a Father to kill his own Children if they offended for the Law presuming upon the Fathers Integrity had permitted such a Right unto him The like power saith Dion we find permitted in many Nations famous for wise and wholesom Laws XXIX Of the Children of Slaves that are born and bred in their Masters family Vide infra Ch. 8. §. 18. Pliny l. 10. c. 34. de columbis Lex Visigothica The Sclavonian Law judgeth the Children by the Father The Laws uf England Littleton de Villanagio The Roman Laws What the Law of Nature is in this case If the Parents cannot maintain the Child but at the Lords charge the Child is a Slave But of the children of Captives which are born of Slaves in their Lords Family there is yet a more difficult question For by the Laws of the Romans and of other Nations concerning Captives as we shall elsewhere shew as of brute Beasts so of people of a servile condition it holds true that Partus sequitur Ventrem As is the Mother so is the Child But this notwithstanding is not altogether congruous to the Law of Nature especially where the Father of the Child may be sufficiently known For since even among dumb creatures as Pliny observes of Doves Amor utrique sobolis aequalis Both Parents are equally concerned for their own young thereby acknowledging their common interest in them So also had not the Civil Law otherwise determined the Child had followed the condition of the Father no less than that of the Mother For if the Son saith the Visigothick Law be born and created by both Parents why should he follow the condition of the Mother only who without the Father could not beget him Among the Sclavonians as also in some parts of Italy among the Lombards and Saxons the children are accounted either bond or free from their Father The Laws of England judge of the Child not by the Mother but by the Father for the Husband and Wife being but one person in our Law and the Wife marrying a Freeman by the common Law of England the Issue is free Which Laws though different from the Roman Civil Law yet as Aquinus notes doth not much deviate from the Law of Nature And why not since among the Romans by their Mensian Law if both the Parents were Aliens the Child born of them were so too as Vlpian tells us Now let us admit that both the Parents are Slaves it is worth our pains to know whether naturally the Child be so or not And certainly if the Parents have no other means to breed up the Child but in their Lords family or at his charge they have a power to deliver him up to the Lord for a Slave For although the Child were ingenuous and free-born yet in such a case they have power by the Law to sell him And in case the Parents were Servants to several Masters then by the Law of Nature the Children were to be divided between their respective Lords But if they had but one Child then of right it belonged to him whose Slave the Father was the Lord of the Mother being first satisfied for his half part and yet of the Children of him that was born in the house of his Lord two parts did accrew to his Lord and but one to the Lord of the Mother according to the Edict of Theodoric Otherwise not as Cassiodore records Now whereas I said before that the Parents if they had not any means to breed up their Children but at the charge of their Lord might deliver them up unto him as his Slaves it may seem that this Power doth naturally arise from their supplying them with food and other necessaries and therefore where there is no such necessity as where there are other means to breed them they have no right to sell them And so it was adjudged by Charles the Bald wherefore the Right that these Lords have in the Children of their bond-servants springs from the many years Alimony that is given them by the Lord before they could be serviceable to him which they are to recompense by their future labour And for this cause the Parents cannot dispose of them to any other man neither may the Servant flee from his Lord until full satisfaction be given unto that Lord for the charge of their education But if the Lord be too unmercifully cruel then that even they who have surrendred themselves as Slaves may provide for their
principally rely For in Persia That Xerxes the Postnate Son was preferred before Artabazanes the Antenate was more by the power of Atossa his Mother than by true right as Herodotus observes For in the same Kingdom when the same Controversie afterwards arose between Artaxerxes Mnemon and Cyrus the Sons of Darius and Parisardis Artaxerxes the first-born though begotten by his Father in his private condition was notwithstanding saluted King Unless we take that as granted which Ammianus hath delivered unto us That the Succession to that Monarchy did much depend upon the suffrages of the people confined only within the Royal stock XXX Whether the Nephew by the elder Son be to be preferred before the younger Son It is no less disputed both by Wars and single Combats whether the elder brothers Son his Father being dead should succeed before the second Brother But this in a lineal descent will hardly admit of a dispute For herein are the dead reckoned as living in that they are able to transfer a Right to their Children therefore the Son of the deceased shall doubtless in such a Succession be preferred without any exception made to his age yea and where the Succession is cognatical the Daughter of the eldest Brother shall be preferred before the Uncle because in such Successions neither Sex nor Age should make us to decline the right line But in such Kingdoms as are hereditary yet divisible there shall each have a share unless it be where the Right of Representation is not as yet received as of old among many of the German Princes For it is but of late that Nephews have been admitted before their Uncles But where it once comes into debate surely the Nephews case is to be preferr'd as being most pleasing to humane Nature And where by the Civil Laws of any Nation representative Succession is once openly admitted there the Son of the deceased Brother shall succeed in the room of his Father though in that Law the word Proximus that is Next of kin be only mentioned The Reasons that are extracted out of the Roman Laws for this are but weak as is evident to such as inspect them But this is the best reason That in matters that are to be favourably understood the sense of words must be extended to all propriety not only vulgar but artificial So that under the name of Sons may be comprehended those of Adoption and under the word Dead may in included those that are dead in Law because the Laws do usually speak thus And thus he may deservedly be said to be Proximus whom the Laws present in the next degree But yet in Kingdoms that are hereditary and withal individual and where this Representative Succession is not excluded Neither is the Nephew always preferred to the Succession nor always the second Son but as amongst equals because by an effect of Right as to degrees that are adequate his case is best that is eldest Diod. l. 6. For as we have said before in hereditary Kingdoms Succession is guided by the priviledge of age Among the Corinthians the eldest Son of the deceased King did succeed in his Fathers Throne Procop. Vand. lib. 3. So among the Vandals it was provided That the next in Blood to the first King and the eldest should be declared Heir So that the second Son because of his maturity of years was preferred before the Son of the eldest Brother Vid. sup §. 24. So in Sicily Robert being the Second Son was advanced to the Throne before Martell his elder Brothers Son not properly for the reason fansied by Bartolus because Sicily was held in Fee as it were by a Superiour Lord but because that Kingdom was hereditary There is in Guntanus an ancient example of such a Succession in the Kingdom of the Francks but that proceeded rather from the peoples choice which at that time did not fully cease But since that Kingdom ceased to be Elective and that the line of Agnatical Succession was there established the matter admits of no dispute As anciently among the Spartans where as soon as the Kingdom came to the Heraclidae the same Agnatical Succession was introduced And therefore Areus the Son of the elder Brother Cleonymus was preferred to the Crown before his Uncle But even in a Lineal Cognatical Succession the Nephew hath been preferred As in England John the Nephew of King Edward by his eldest Son was preferred before Hemon and Thomas Which also is setled by Law in the Kingdom of Castile XXXI Whether the younger Brother living be to be preferred before the Kings elder Brothers Son By the same distinction we may resolve another doubt between the surviving Brother to the last King and the Son of the elder Brother But that we must know that in many places where among children the living may succeed in the room of the dead in the right line they are not permitted so to do in the transverse But where the Right is not clear and undoubted it is most rational to incline to that part which favours the Child in the Right of his Father because we are thereunto guided by natural equity namely in that Estate which descended from his Ancestors Neither is it any Impediment that Justinian calls the Right of Brothers Children Depredatory For this he doth in relation to the ancient Roman Laws but not to natural equity Let us now proceed to examine the other cases proposed by Emanuel Costa XXXII Whether the Son of the Brother be to be preferred before the Kings Uncle The Son of the deceased Brother or even his Daughter he saith is to be preferred before the Kings Uncle This is true not in a Lineal Succession only but even in an hereditary in such Kingdoms where Representative Succession takes place but not in such Kingdoms which in express terms do bind us up to the degrees that are Natural For there they are to be preferred which have the precedency of Sex and Age. XXXIII The Nephew by the Son preferred before the Daughter He further adds That the Nephew from the Son is to be preferr'd before the Daughter It is true By reason of his Sex yet with this exception Unless it be in such a Nation which even amongst Children respects only the Degree XXXIV The younger Nephew from the Son before the elder from the Daughter He farther adds That the younger Nephew from the Son is to be preferr'd before the elder from the Daughter which is likewise true where a Lineal Cognatical Succession is in use but not in an hereditary without the warrant of some Special Law Neither do we approve of the Reason alledged namely because the Father of the one was to be preferred before the Mother of the other For that was by reason of his dignity which was meerly personal and descended no farther And yet on the contrary we read that Ferdinando the Son of Berengaria the younger Sister of King Henry deceased was preferred to the Kingdom of Castile
Warren had an owner but ranging in Woods hedg'd about not As though Fish inclosed in a greater Pond could not be as well owned as in a lesser and Deer and Conies as well possest in a well fenced Wood as in a Park or Warren Seeing that there is no more difference between them than that in the one they are close Prisoners and in the other Prisoners at large Wherefore in this age of ours the contrary opinion is most prevalent That both Deer in private Woods and Fish inclosed in Lakes may be as possest so also held in Propriety III. That out-lying Deer cease not be the owners could they be known In Wild Beasts as soon as they recover their Natural Liberty we lose our Property say the Roman Lawyers But in all other things the Dominion that is got by Possession is not lost with the loss of Possession nay it gives us also a Right to recover our Possession And whether it be taken away from us by another or stray away of it self as in the case of a Fugitive Servant it matters not much The Title we may retain though the Possession be lost Wherefore it seems more agreeable to truth That our Property is not lost meerly because the Beasts that were wild have escaped our custody but because it may probably be conjectured That by reason of the difficulty of recovering them we have utterly deserted them especially when it cannot be known unto others that they were ours But this conjecture may easily be wiped away by other conjectures as namely by affixing unto them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 some things whereby it may be known whose they are as is usually done to Harts Hawks and the like To acquire a full Dominion in things naturally wild it is necessary that we should have a Corporal Possession It is not enough to entitle our selves to a Deer that we have wounded him but we must catch him too lest the Proverb upbraid us with folly In starting an Hare for another to eat According to that of Ovid Et lepus hic aliis exagitatus erit By the Law of the Lumbards He that killed a Wild Beast being first Wounded by another might take away the Shoulder with the Ribs the rest belonged to him that wounded him if he claimed it within twenty four hours otherwise not For as Ovid well observed It is one thing to know where a thing is and another to find it Met. 5. IV. Possession how got by Instruments as Nets c. Now this Possession may be gained either by Hands only or by Engines as by Traps Nets Snares Ginns c. Provided first That those Instruments are under our own power And secondly That the Beast so taken cannot escape And thus is the question decided concerning a Wild Boar that is fallen into a Snare or Toyl V. That Wild Beasts should be the Kings is not against the Law of Nature These things are thus to be understood where no Civil Law intervenes wherefore our Modern Lawyers are much mistaken who think these Rights to be so Natural that they cannot be changed For they are not simply or absolutely so but as things at that time were before the Civil Law did otherwise determine of them The people of Germany consulting about some allowances to be given to their Kings and Princes whereby to support their Regal Dignities thought it prudence to begin with such things as no private man could claim as his own Which prudential course the Aegyptians also anciently took where the Kings Attorney seized on all such things to his Masters use But the Law of it self is sufficient to transfer a Propriety in any thing that is not already occupied The Whales that are cast upon the Shoar the Portugals give unto their King VI. Possession of things not owned how gained After the same manner as Wild Beasts are possest are all other things that have no owner For Nature doth indifferently adjudge all such things to the first finder and possessor of them Thus was the Island Acanthos * Plut. Graec. Qu. 29. being desart adjudged to the Inhabitants of Chalcis who first entred upon it and not unto the Andrians who had first thrown their Darts into it Because Possession is taken either by the apprehending of a thing if movable mostly by the hand or if immovable as of Land by setting our feet upon it For as the Poet tells us Scire ubi res est non est invenire It is not enough to know where a thing is unless we can find it VII Mony found whose it is Among such things as are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 without an owner are Treasures reckoned that is Mony the owner whereof is unknown For things that appear not are as if they were not wherefore such treasures are naturally his that finds and apprehends them yet not so but that Laws and Customs may dispose otherwise of them Plato would have the finder to give notice thereof to the Magistrate Philostr D. 15. or to take advice of an Oracle Apollonius looked at such treasure as being an especial gift of God and adjudged it to him that was best beloved of him Bibliorum Lex It is Scripture Law Quod non posuisti ne tollas Take not away what thou didst not lay down The Hebrews gave such treasures to him that was Lord of the ground wherein it was found as may be collected from that parable of our Saviour concerning Treasures hidden in the ground which being found he that found it sold all he had and bought the Field Mat. 13.44 So did the Syrians as may be gathered out of Philostratus And it seems that in Plautus his time this was approved of by the Romans The Laws of the Empire do much vary about this as may appear partly by their constitutions Annal l. 16. and partly by the Histories of Lampridius Zonoras Cedrenus and Tacitus who writing of the great Treasures found in Africa saith Which Nero in his hopes devoured The Germans gave such as also they did all other 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to their Prince which is now so common every where that it may well pass for one of the Laws of Nations For it is this day observed in Germany France England Spain and Denmark But this very same custom we read of among the Goths Lib. 4. c. 34. witness King Theuderick in Cassiodore Non est cupiditas eripere quae nullus se dominus ingemescat amisisse It cannot be imputed as Covetousness to take that which no man hath just reason to complain for the loss of And in another place Those riches which having lain so long hid have lost their Masters by thy diligent inquisition are now ours For since we permit every man freely to enjoy his own What is no mans is the Kings what is no mans ought to be ours He may well be content to lose what he hath found who knows that in so doing he loseth nothing that is his
void Now these things do naturally attend any Oath whereby we may easily judge of the Oaths of Kings and of Foreigners one to the other when the Act is not subject to the Laws or Customs of the place XX. How far the Prince's power prevails over his Subjects Oaths Now let us see what power our Superiors namely Kings Princes Masters and Husbands have in things that concern them in their respective Rights over their several Relations And first we must know That the Acts of our Superiors cannot make an Oath that is truly obligatory void so that it ought not to be fulfilled For this would be repugnant both to Natural and Divine Right but because all our Actions are not fully in our own power but so as they have some dependance on our Superiors therefore we grant that our Superiors have a twofold power over us concerning that which is sworn the one directed upon the person swearing the other upon the person to whom he swears The act of our Superiours may restrain the person swearing either before he swears making such an Oath void so far as the Right of an Inferior is subject to the power of his Superior or after he hath sworn by forbidding the performance of it For an Inferior as such could not bind himself without the approbation of his Superiour beyond which he had no power And after this manner by the Jewish Law the Husband had power to null the Vow of his Wife so had the Father the Vow of his Children so long as they were under the power of his government Seneca starts this question What if there should be a Law enacted that no man should do that which I have promised my friend to do for him Which he thus resolves Eadem lex me defendit quae vetat The same Law defends me that forbids me There are also some mixt acts between both as when the Superior doth appoint that his Inferior shall bind himself by Oath in this or that case namely through fear or want of judgment but with this limitation that the Oath shall bind if his Superiour shall approve thereof And upon this foundation are built all dispensations and absolutions from Oaths which Princes in former times did exercise by themselves cap. 35. as Suetonius testifies in the Reign of Tiberius and Vasquius records to have been long used in Spain which power they now remit that it may be with more piety executed unto the Ecclesiastical jurisdiction The power to absolve from Oaths in whom anciently So the act of a Superiour may be directed against the person to whom it is sworn either by taking away that Right which by that Oath he hath gained or if as yet he hath no Right by forbidding him from claiming any Right by vertue of that Oath And this he may do two ways either by way of punishment or for a more publick good by vertue of his Soveraign power And from hence we may learn what power Princes have over their Subjects Oaths where he that swears and he to whom it is sworn are of several Nations But he that upon his Oath hath promised any thing to a Nocent person as to a Thief or to a Pirate as such cannot by way of punishment take away from him that Right he hath given him For then the words of his promise or of his Oath should have no effect at all which inconvenience is to be avoided For the like cause the Right of that which is promised cannot be compensated with the Right of that which was before controverted in case the agreement were made after that Controversie began Yet may an humane Law remove that impediment which it had put in acts of some certain kind in case an Oath either of what kind soever or in some certain form be added As the Roman Laws have done in such impediments as respect not the publick directly but the private benefit of him that swears which if it may be done the act sworn shall stand in force in the same manner as naturally it would if such an humane Law were not either in obliging hi◠faith only or in giving also a Right to another according to the diverse natures of acts which we have already elsewhere handled XXI What manner of Oath Christ forbad And here by the way we must observe that what is said in the Precepts of Christ and by St. James concerning our not swearing at all doth not properly belong to assertory Oaths whereof we have several examples in St. Paul but unto such as are promissory for a time to come James 5.12 Rom. 1.9.9.1 2 Cor. 1.23.11.31 Phil. 1.8 1 Thes 11.9 1 Tim. 11.7 which is uncertain And this is evident by the opposition in the very words of Christ Ye have heard it said to them of Old Thou shalt not forswear but thou shalt pay thy vows unto the Lord. But I say unto you swear not at all And by the reason that is added by St. James That ye be not found to be deceivers For so the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sounds among the Greeks as will appear by Job 34.30 and Mat. 24.57 The same may easily be evinced by our Saviours subsequent words Let your speech be Yea yea Nay nay which St. James thus expounds Let your yea be yea and your nay be nay which is a plain Figure which the Rhethoricians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The former yea signifying the promise made the latter yea the fulfilling of that promise For this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. yea is an Adverb of yielding granting or promising and is exprest by Amen Apoc. 1.7 The Roman Lawyers exprest it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Quidni which is an affirming or an assenting to that which is asked of us It is used for the fulfilling of a promise by St. Paul 2 Cor. 1.20 Where he saith that all the promises of God in Christ are yea and Amen Hence ariseth that old Heb. Adage An honest mans yea is yea and his no is no But on the contrary he whose words and deeds do not accord is by them said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes off and sometimes on as 2 Cor. 1.18 19. 2 Cor. 1.18 19. That is their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their yea is no and their no is yea the meaning whereof is that they are inconstant unsetled always changing So St. Paul himself expounds it for when they charged him with levity he excuseth himself saying that his speech to them was not yea and no but as to himself it was always yea Festus among the various significations of the word Naucum writes thus Some there are that think that it is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so signifies a wavering man Now if 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and no signifies lightness or inconstancy it will follow that yea yea and no no signifies stayedness or constancy So
the Civil Law which will not admit of one mans Promise for another mans fault such a Promise shall amount unto a Confirmation of the things agreed on and shall bind the Promiser to make good what the Prince or People refuse IV. Menippus his division of Leagues rejected Menippus King Antiochus his Embassadour to the Romans as it is recorded by Livy and Diodorus Siculus being led more by his own use and custome than by the rules of Art divided Leagues into three sorts The first whereof is When the Conquerour gives Laws to the Conquered where it is in the Victors power to determine what the Conquered shall have and how far he shall be punished The Second is When both parties being of equal power and success in the War do agree in an amicable League on equal conditions And then by agreement things taken are on either side to be restored And in case any man hath been disturb'd in his possessions during the War the difference is to be composed either according to ancient Right or according to the mutual Profit and Convenience of both parties The Third is When they that never were Enemies do enter into a Social League between themselves without either giving or receiving Laws on either side V. Leagues divided into those that bind to things agreeable to the Law of Nature But we are to distinguish somewhat more accurately As in the first place we may say that some Leagues require such things only as are congruous to the Law of Nature others add something thereunto Leagues of the former kind are usually made not only between Enemies at the end of a War but of old were both often made and in some sort necessary amongst those who before had never contracted for any thing The ground whereof was That that Principle of Natural Right which instructed us that Nature had prudently linked together all mankind in a kind of strict Alliance And therefore for one man to hurt another was impiety was as of old before the flood so again some times after by an universal corruption of manners so obliterated that it was held lawful to rob and spoil Foreigners yea though there were no Wars proclaimed No sin to rob strangers So Caesar of the Germans Latrocinia nullam habent Infamiam quae extra fines cujusque civitatis fiunt Look what Spoil and Robberies they committed without the bounds of their City De moribus Ger. lib. 14. In the Life of Minus they held as no dishonour The like Testimony Tacitus gives of them with whom agrees that of Plutarch touching the Spaniards Who saith he till that time thought it an honourable imployment to spoil and plunder out of their own Territories Nay the Jews themselves refused to make satisfaction for damages done unless to a Jew or a Confederate whence that question in Homer An Praedones estis Are ye Forragers i. e. such as live by the spoils of strangers was an innocent and friendly Interrogation For saith the Scholiast upon that place To prey upon strangers was then held an honourable imployment The very same we find in Thucydides with this addition For this kind of life was not at that time infamous but commendable No more was Pyracy upon the Seas until the Reign of Tarquine as Justin testifies And this the Roman Laws seem to justifie For if any thing had been taken by the Romans from any Nation with whom they had no commerce hospitality nor League of Amity for these were not accounted enemies it was held by them as lawful prize So if a Roman Citizen were found among them or brought unto them they were immediately made Slaves And in this case did their Law of Postliminy take place The same and no better quarter had those people being taken by the Romans Thus we read that the Corcyrenses before the Peloponnesian War were no Enemies to the Athenians but neither had they Peace with them nor any Truce as by the Oration of the Corinthians in Thucydides appears So Salust speaks concerning Bocchus Nobis nec pace nec bello cognitus That he was altogether unknown to the Romans by either Peace or War And to rob and spoil such was in the opinion of Aristotle laudable And is so far warrantable by the Roman Laws Hostis taken anciently for a Foreigner that the word Hostis which signifies an Enemy did in the old Latin dialect signifie nothing but a Stranger or Foreigner Now under this kind of League I comprehend those also whereby Freedome of Commerce and the reception of strangers are on both sides assented unto as being agreeable to the Law of Nature whereof we have treated above And thus we shall find these Leagues distinguisht by Livy in that Oration which Arco makes to the Achaians Lib. 41. where he insists not upon any League of Society but upon that of Commerce which consisted in giving and reciving that from each other which was due by the Law of Nature namely That the Achaians would forbear to receive into their protection the fugitive Servants of the Macedonians Now all such Conventions the Greeks do strictly include under the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Peace whereunto they oppose the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is a League made by Sacrifices VI. And into those that add unto it which are either things equal Those Agreements which contain those additaments to those of Natural Right are either equal or unequal equal when the Articles are the same on both sides Whereunto Virgil alludes Nec mihi Regna peto paribus sub Legibus ambas Invictas gentes Aeterna in Foedera mittam Empire I claim not but with equal Right Both Nations will with lasting Leagues unite And these the Greeks sometimes term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leagues simply sometimes Leagues upon equal conditions as we read in Appian and Xenophon But those that are made upon unequal conditions they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because made by Sacrifices And as they respect the weaker party 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because imposed upon them upon hard conditions which as Demosthenes adviseth are carefully to be avoided by all such as love their liberty because they approach too near to subjection Now both these kinds of Leagues are made either for Peace or for Society sake Those equal Leagues of Peace are usually made for the restitution of Prisoners or Goods taken in War or for mutual security whereof we shall speak more at large anon when we have occasion to speak of the effects and consequences of War Those equal Leagues of Society respect either mutual commerce or an equal participating of the charge of a War or some other matters Concerning Commerce equal Covenants may be various as namely That no Customs be paid on either side which we find to be one of the Articles agreed on in that ancient League made between the Romans and the Carthaginians except only what was given to the Notary and to the Cryer Or
Vejentine Embassadors That unless they departed the City they would shew them no more mercy Liv. l. 27. Id. l. 4. Lib. 10. than Tolumnius their King had shewed to the Roman Embassadors whom he commanded to be killed And as the Samnites declared to the Romans namely That if they entred into any Assembly in Samninus they should not depart in safety This Law therefore reacheth not unto those through whose Territories Embassadors presume to pass without Licence For if they are going to their Enemies or coming from them or do otherwise attempt any Act of Hostility they may be even killed Thus did the Athenians serve the Embassadors passing between the Persians and the Spartans So did the Illyrians Thucyd. l. 2. those that went between the Essians and the Romans Much more being taken may they be bound and kept in Prison as Xenophon past Judgement upon some and Alexander against those which were sent from Thebes and Lacedaemon unto Darius and the Romans against the Embassadors sent to Hannibal But if no such thing be and yet the Embassadors be evil treated the Law of Nations whereof we now speak is not thereby violated but the honour of those Princes either from whom they came or unto whom they were sent is thereby wounded and all friendship with them broken Thus writes Justine concerning Philip the latter King of Macedon Li◠29. That he sent his Embassador with Letters to contract Friendship with Hannibal who being taken and brought before the Roman Senate was dismist with safety Not in honour to the King but lest of a doubtful Friend they should thereby make him their certain Enemy But it is otherwise in case any Prince shall lay in wait to surprize the Embassador of another Prince without his own Territories for this is a violation of the Law of Nations as is plain by the Oration of the Thessalians against King Philip recorded by Livy VI. An Enemy is hereunto obliged if the Embassador be sent unto him But on the other side the Embassage being admitted the Law of Nations protects the person sent even among those Nations that are in Actual Arms one against another much more among such as are barely Enemies It is very true what Diodorus Siculus saith That Heralds enjoy Peace in the midst of War The Lacedaemonians who killed the Heralds sent from the Persians are said to break the Law of all Nations * Vide §. 1. If any man shall strike an Embassador coming from an Enemy he shall be judged saith Pomponius †L. ult D. de Legatis as one that hath violated the Common Right of all Nations because their persons are generally held as sacred And Tacitus calls this Right ‖ Ann. l. 1. Verrin 1. Lib. 5. c. 2. whereof we now treat the Right of Enemies the Sanctimony of Embassies and the Law of Nations approved by God himself So likewise Cicero Nonne Legati inter hostes incolumes esse debent Ought not Embassadors te be secured though among Troops of Armed Foes And Seneca in his Books of Anger He offered violence even to Embassadors thereby spurning at the Law of Nations A villainous Act a wicked Cause an impious Murder as Livy calls it in the Story of the Fidenates assassinating the Roman Embassadors And in another place when their Embassadors were brought into great danger he saith Ne belli quidem jura relicta sunt They had not left amongst them so much as the Rights of War Lib. 4. So Curtius He sent Embassadors to compel them to peace whom the Tyrians killed and threw headlong into the Sea contrary to the Law of Nations And deservedly For even in War many things fall out which cannot be transacted but by Embassadors and very hardly can Peace at any time be made without them VII Neither are Embassadors liable to the Law of Retaliation Another Question doth usually arise namely Whether a Prince may retaliate the wrongs done unto his own Embassadors upon the Embassadors of him who did that wrong And surely we may find in Histories many examples of revenges taken in this way And no marvel for Historians do usually record not only things that are justly and piously done but those also that are done unjustly in heat of anger rashly and impotently But the Law of Nations doth not only carefully provide for the honour of the Person sending but for the security of the Person sent So that there is as it were a silent Contract made between the Embassador sent and the Prince to whom he goes And therefore though there should be no injustice done in respect of the Prince that sends his Embassador as having justly deserved it for the affront given him in the wrongs done unto his Embassador yet to the person sent there would be done a manifest injustice because by vertue of that tacite agreement he might justly claim his Indemnity And therefore it was not only magnanimously but justly done by Scipio according to the Law of Nations who though the Roman Embassadors had been very hardly used at Carthage yet when the Romans brought the Carthaginian Embassadors unto him demanding what should be done with them made answer Nihil tale quale factum fuit à Carthaginensibus Nothing of that which the Carthaginians did unto the Romans Or according to what Livy adds Nihil se facturum institutis populi Romani indignum That he would do nothing unworthy of the Roman Discipline Whereunto Diodorus adds this Reason Lest what we blame in them we justifie in our selves And the Romans themselves though they were not ignorant of what the Carthaginians had done yet dismist their Embassadors in safety Thus did Constantius remit Titianus being sent unto him by Magnentius though his own Embassador Philip sent unto Magnentius had been hy him detained as Zosimon testifies And when long before the Roman Embassador Cornelius Asina was put in Chains by the Carthaginians and Hanno the Carthaginian Embassador being at that time in Rome was afraid of the like measure the Consuls stood up in the Senate and thus bespake him Isto te metu Hanno fides Civitatis nostra liberet Let the Faith of our City Hanno free thee from this fear VIII The priviledge of Embassadors extends to their Retinue Not only the Embassadour himself but his Followers and Goods are to partake of the same priviledge if he please And therefore the Ancient Form of words used by Embassadours and Heralds unto the Kings to whom they were sent were these O King dost thou admit of me as the Royal Messenger of the People of Rome together with my Goods and Followers And by the Julian Law not only they that offered violence to the persons of the Embassadours themselves but they that injured any of their Attendants were found guilty De vi publiea Of violence done by force and arms But this Sanctimony belongs unto them but as they are Attendants to the Embassadour and therefore no further due than he shall please
Samians after three ages Injuries done should not be revenged but on those that did them From all which we may conclude That the memory of injuries done us ought not to outlive the persons that did them neither will those arguments brought by Plutarch in defence of the revenge taken by God upon Posterity for the sins of their Ancestors serve to justify the like in men because there is not the same right between man and man as there is between God and man neither will it necessarily follow that because our Children do receive honours and rewards for the vertuous acts of their forefathers therefore they may be justly punished for their faults because such is the nature of a courtesie or benefit that it may be conferred upon any man without injury but the nature of a punishment is not so IX Whether a man may partake of the punishment tho' not of the crime Thus having shewed by what means a man may partake of the punishment by being made accessary to the sin of another now we intend to shew how a man may be involved in the punishment though he be no ways accessary to his sin And here to avoid mistake and that we may not confound things in their own nature distinct because they are alike in name we must walk cautiously as to some particulars X. That which comes directly distinguisht from that which comes by consequence As in the first place we must distinguish between that damage that is purposely and directly done and that which comes by consequence that I account a wrong directly done when that is taken away whereunto a man hath a peculiar right And that I call a wrong done by consequence when a man is deprived of that which otherwise he might have had that condition ceasing without which he could have no right or title An example whereof Vlpian gives us thus If by digging a Well in my own ground I cut off or intercept the spring that feeds my neighbours Well the damage he sustaineth is not occasioned directly by any illegal act of mine but by the lawful use of that wherein I had a proper and peculiar right as being mine own And in another place There is a great difference between the doing of an injury and the prohibiting a man to make the profit which he hath hitherto been permitted to make And it is very preposterous saith Paulus the Lawyer to account our selves rich before we have acquired those riches As when a Father runneth into a praemunire by doing that for which his estate is justly confiscate his Children may feel the loss 't is true but the loss is not properly their punishment because the goods could not properly be accounted theirs unless they had continued to have been their Fathers to the hour of his death which was well observed by Alphenus when he said The Children indeed do suffer through the default of their Father but that they do not inherit that which should otherwise have descended unto them is not properly the Childrens punishment but their Parents But those goods which accrew unto them not from their Parents but either from nature custom or education do notwithstanding their Fathers fault remain perfectly theirs Cicero writes that Themistocles his Children suffered want nor did he think it unjust that Lepidus his Children should do the like and this he affirms to be an ancient custom and observed in all Cities which notwithstanding the later Roman Laws have somewhat moderated So when through the default of the major part which as we have said before represents and hath the power of the whole the whole offends and upon that account loseth their civil liberty i. e. their Walls Ports and other Commodities those particular persons who were innocent do indeed bear an equal share in the loss but yet in those things only which appertained not unto them but as they were a part of the whole XI What befals us by the occasion of a crime distinguisht from that which befals us because of the crime Besides it is to be noted that sometimes some evil is to be imposed on a man or some good taken from him by the occasion of anothers sin yet so that that sin is not the immediate cause of that action as to the very Right of doing it as he that passeth his word for the debt of another suffers not by reason of the debt but by reason of his ingagement according to our Proverb A Surety is a sure tye For as he that passeth his word for a buyer is not bound by the purchase but by his own free promise So he that undertakes for a delinquent may suffer Sponde noxa praesto est not for his delinquency but by reason of his vadimony or susception which as it was in his own free power to do or not to do so being done it shall no less oblige him than the offence did the delinquent Now the ground of this is the power and freedom that every man hath to oblige himself and therefore the measure of his sufferings is not to be taken from the hainousness of anothers fault but from the power he hath to oblige himself The consequence whereof is That no man can justly be put to death by being a surety for another whose crime may happily deserve death because no man can justly oblige himself beyond what is in his power but this power over a mans life either to take it away from himself or to oblige another to take it away from him no man hath and therefore no man can justly be put to death by reason of such a vademony And this I hold to be the truer opinion though it seems that not the ancient Romans only but the Grecians and Hebrews also were of another mind who believed that even the sureties also might justly be adjudged to death as appears by that ancient story of Damon and Pythias And by those words of Reuben to his Father Jacob Jos Ant. lib. 2. cap. 3. Slay my two sons if I bring him not back unto thee * Gen. 42.37 whereunto St Augustine †Ep. 54. ad Macedonium See lib. 3. c. 4. §. 14. alludes where he saith That he that is the cause of anothers death is sometimes a greater sinner than he that kills him As when a malefactor leaves his surety to suffer that lawful punishment which himself should undergo as it falls out frequently with hostages as we shall shew anon Neither doth this power of obliging a mans self extend to mutilation for no man hath such a power over his bodily members as to cut them off unless it be for the conservation of the whole body But whatsoever any man hath a full and absolute power over he may engage for another and if he suffer thereby it is not by way of punishment but by way of equity which requires that what is promised should be performed Thus a man may forfeit his estate his liberty his goods
Christian Doctrine X. Single Combats permitted Near of kin unto this are single combats between Competitors the use whereof is not altogether to be rejected for where two persons standing in competition for one thing which cannot be divided are ready to embroil a whole Nation in blood It were much better and more just that one should perish for all than that all should perish for one only In which Case that of Jocasta in Seneca is good advice Plut. Otho Theb. Rex sit è vobis uter Manente regno quaerite Try which of you shall reign But let the Kingdom still remain And this if not justifiable in the competitors themselves yet may it well be accepted of by the people if offered as being of two evils by much the lesser Thus Metius in Livy bespeaks Tullus Lib. 5. Let us agree about some way whereby it may be determined whether of us two shall reign over the other without the effusion of so much blood or the slaughter of either of our people Strabo set it down as an ancient custom among the Grecians And Aeneas in Virgil accounted it a very just thing that the quarrel between Turnus and him should have been thus decided Aen. 11. Fitter 't had been for Turnus thus t' have died And for this cause it was that M. Anthony challenged Caesar to a single combate as Plutarch records Vit. Ant. Sure it is that amongst other customs of the Ancient Francks Agathias highly commends this whose words being worthy of Eternal Memory are to this purpose No sooner did any quarrel arise between their Kings but immediately they betake themselves to their Arms they raise Armies and march against each other so furiously as if nothing but an absolute conquest could end the controversie but yet as soon as the Armies met and faced they presently laid aside all animosity and made peace thereby enforceing as it were their Kings to dispute their grievances rather by Law than Arms or if that pleased them not then to end their quarrels with the peril of their own lives only as judging it neither just nor reasonable nor indeed agreeable to their national customs for their Kings to sacrifice the Commonwealth to their private hatred wherefore they instantly disband their Armies reconcile their Princes and make Peace Tanta in subditis cura justitiae patriae amor in regibus animus placidus suis obsequens So great in the subjects was their esteem of justice and love to their Country and in their Kings their moderation of spirit and their compliance with the people in order to their common safety XI In cases equally dubious the present occupant hath the best right Although where the equity of the cause is doubtful both Parties are obliged to seek after conditions of peace to prevent the miseries of War yet doth it more concern him that demands than him that enjoys what the other requires as in the like equal cause Melior est possidentis conditio The title of the present occupant is presumed to be best as being most agreeable not only to civil but to natural Right the reason whereof we have already given elswhere out of Aristotle's Problems whereunto we must here add That War cannot be lawfully made by him who though he know his title to what he claims to be good yet cannot produce evidence sufficient to convince the present occupant of the illegality of his possession because he hath not a Right to compel his Adversary to leave his possession XII If neither be possest then a partition is just Where the Right is equally ambiguous and neither party in possession or both equally then he is to be reputed unjust that shall refuse an equal partition of the thing controverted being offered unto him XIII Whether a war may be on both sides just explained by many distinctions By what hath been herein said it will be no hard matter to resolve that question which is so frequently controverted Whether a War in respect of the principal promoters of it can be on both sides just where we must first distinguish between the various acception of the word Just * So Gratian distinguisheth justice into that which respects the cause the order and the mind c. 11. q. 5. post C. Episcopus For a thing may be said to be just in respect of the cause or according to the effects Again a thing a may be just in respect of the cause either according to the special and strict acception of justice or according to its more general acception as it comprehends whatsoever in equity or honesty ought to be done Again the word Just taken in its special signification may be subdivided into that which respects the work done or into that which respects the mind of him that doth it for the agent may sometimes be said to do justly whilst he doth not unjustly though that which he doth be not just As Aristotle * Eth. l. 5. c. 10 11. Greg. rightly distinguisheth between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to do unjustly and to do that which is unjust Bonis male utuntur qui temporali lucro juste judicant They make ill use of things in themselves good who do justice for rewards sake because it is the hopes of gain and not the love of justice that excites them to defend the truth Now in this special acception of the word Just and as it relates to the thing it self no War can be on both sides just as neither can any other contest be Quia facultas moralis ad contraria non datur per rei ipsius naturam Because the very nature so the thing about which the dispute was will not admit of a moral power to things that are contrary as namely to do a thing and yet to oppose the doing of it But yet it may very well be That neither of the Parties warring against each other doth unjustly because no man can be said to do unjustly but he that knows that which he doth to be unjust But many men do not know that they do amiss though that which they do be in it self unjust so when men go to Law they may justly that is with a good mind and intention do it on both sides because they do both conceive that they are in the right To some things the Right is not discernable whose it is and then whilst each endeavours to take that from another which he thinks belongs to himself who can condemn either of injustice for of many things as well in point of Right as in matters of fact whence Right ariseth men are ignorant Now in the general acception of the word Just that is said to be just in the doing whereof the Agent is altogether innocent for the act may be unjust and yet the Agent blameless by reason of his insuperable ignorance An example whereof we have in such as being through no default of theirs ignorant
Treasury but the Money he had raised by the selling of the Captives But having Conquered the Hetrusci and made sale of the Captives out of the Money so raised he restored to some Roman Matrons the Gold they had contributed to maintain the War and laid up three Cups of Gold in the Capitol Fabricus having conquered the Lacanes the Brutii and the Samnites Liv. l. 5. L. 6. did very much enrich the Souldiery restored to every Citizen his Taxes and brought into the Treasury Four hundred Talents besides So did Fabius when he had taken Tarentum Liv. lib. 37. brought the Money raised by the sale of Prisoners into the Treasury but the rest of the spoil he disperst among his Souldiers Thus did Q. Fulvius and Appius Claudius when they had taken Hanno's Camp they sold the spoil and divided it rewarding every man that had done any signal service in that fight Scipio having taken Carthage Lib. 25. gave the spoil of the City to his Souldiers reserving only the Gold and Silver to gratifie his friends Acilius upon the taking of Lamia divided among the Souldiers one part of the spoil and sold the other Cn. Manlius having subdued the Gallogrecians Liv. l. 37. and according to the then Romish superstition burnt their Arms sold the rest of the Prey Id. l. 38. part whereof as his own he brought into the Treasury the rest he divided among his Souldiers with singular care as was most fit XXI Oft-times it was embezelled Whence we may collect That no less among the Romans than among other Nations the spoil did belong to the people of Rome though the disposition thereof was sometimes granted to their Generals yet so that they were to give account thereof to the people which we may learn amongst others by the example of L. Scipio Lib. 5. c. 3. who as Valerius Maximus relates it having conquered King Antiochus and added Asia to the Roman Empire Livy lib. 45. was afterwards as Livy reports condemned for enriching himself with the spoil that belonged to the Commonwealth for he had received Four hundred and eighty Talents of Silver from the Enemy more than he had brought into the Treasury Cato in his Oration concerning the spoil taken from the Enemy bitterly and resolutely complains of the licence and impunity granted unto their Generals in his time in imbezelling the spoils of the Enemy and so robbing the publick Treasury A fragment of which Oration is recorded by Aulus Gellius in these words L. 11. c. 18. Fures privatorum furtorum in nervo atque compedibus aetatem agunt Fures publici in auro atque purpura Private Thieves we usually load with bolts and fetters But they that rob the Commonwealth are clad in Gold and Purple and are indeed the only Gallants of our age So elsewhere the same Cato wonders That any man should dare to hang up in his own house those Ensignes that were taken in Wars as if they were a part of hiâ— own houshold-stuff Neither are Generals only guilty of this crime but even private Souldiers in case what they so take from the enemy they do not forthwith produce in publick For they were all of them bound by Oath saith Polybius that they should not purloin or convey away any thing of the prey but that they should faithfully discharge their trust in regard of their Oaths Lib. 16. c. 4. The Form whereof we find recorded by Aulus Gellius whereby they were obliged not to take away any thing either within the Army or within ten miles of it that was more worth than a small piece of Silver or if they did then they were to bring it to the Consul or within three days to make open profession of what they had done which gives some light to that of Modestinus Is qui praedam ab hostibus surripuit Peculatus tenetur He that stealeth away any of the spoil and keeps it to himself is guilty of robbing the publick Treasury And this one thing is sufficient to admonish those that expound the Law not to believe that the spoils taken from the enemy are peculiar unto those that take them but unto the State that bears the charges of the War For there can be no robbing of the Commonwealth but in those things that are either publick sacred or religious The result of all this is to shew That setting aside the Civil Law and primarily whatsoever is in the publick acts of a Just War taken from the enemy belongs to the Prince or people who are at the charge of making the War XXII That somewhat may be changed of this common right by any Law or Act of the Will We add setting aside the Civil Law and primarily or directly The former because the Law whether made by the people as among the Romans or by the King as among the Hebrews and other places may dispose of these things that are not actually possest to the benefit of the Commonwealth And here under the word Law we understand also Custom if rightly introduced The latter I add that we may know that it is in the power of the people to grant the spoils of the enemy to others as well as they may dispose of other things And that not only after they are got but before so that immediately upon the taking of them Actions are commenced brevi manu as the Lawyers speak that is compendiously declining the dilatory Forms of Suits Which Grant may be made not only nominally but generally also as to Widows to the aged and impotent and to poor Orphans as part of the spoil was thus given in the times of the Maccabites 2 Mac. 8.28 30. or unto uncertain persons in imitation of those Sportulae which the Roman Consuls and other Princes cast among the people whereof every man had liberty to catch what he would Neither is the translation of this Right either by Law or Grant unto others always a mere donative For sometimes it is due by some former Covenant or Agreement sometimes in discharge of some Debt or as a recompence for some loss received or some extraordinary charge men have been at in the War either by purse or pains As when a man serves in the War without pay or for less than his pains deserves For in these cases it is usual we see to grant either all or some part of the spoil unto others XXIII Some of the spoil may be due to our Associates It is also observed by Civilians That Custom hath so far prevailed almost every where that whatsoever either our Associates or Subjects that serve without pay and at their own cost and peril shall take in the Wars is their own As to our Associates the reason is manifest because by the Law of Nature they that are associated in a War are bound to repair each others losses which shall be occasioned by reason of the War which is common and publick Besides there are very few that will
Supreme Magistrate according to the Custom of Nations CHAP. VIII Of Empire over the Vanquished in War I. That a Civil Empire whether in a King or a people may be acquired by War and what the effects are of such an acquisition II. Such an Empire may be gained over a people as is merely despotical and then they cease to be a City III. Sometimes a mixt Government is acquired IV. Sometimes even the incorporeal things of the people may be acquired by War where also is handled the Bond given by the Thessalians to the Thebans forgiven by Alexander I. That the Civil Empire as well in a King as people may be gained by War IT is no marvel that he who can bring into subjection every particular person can also subdue the Body Politick whether it be a City or part of a City and whether that subjection be merely civil or merely despotical or mixt This Argument we shall find used by Seneca in that Controversie which is de Olynthio where he brings in one pleading thus He is my Slave whom I bought by the right of War and very expedient it is for you O ye Athenians not only to acknowledge my Title to be just but to defend it otherwise notwithstanding all your great Conquests your Empire also must be confined within your ancient Territories Wherefore Tertullian acknowledgeth That Empires are gained by Armes but enlarged by Conquests So likewise Quintilian Kingdoms Nations and the Bounds of Cities and Countries are determined by the Rights of War Alexander in Curtius claims by this Right saying That Laws are usually given by the Conquerour and received by the Conquered Thus Minio in his Oration to the Romans Liv. l. 35. Why do ye Romans send every year your Praetor with the Ensigns of your Empire the Rods and Axes into Syracuse and other the Grecian Cities in Sicily for which ye can give no other reason but this That having conquered them by your Armes you impose upon them what Laws you please De Bello Gallic Ariovistus in Caesar's Commentaries saith That by the Law of Armes the Conquerour may govern the Conquered in what manner he pleaseth and that the custom of the Romans was to govern those Cities which they had by their Armes subdued not after other mens prescriptions but according to their own will and pleasure Justine likewise out of Trogus tells us That before Ninus Lib. 1. Princes that made War sought not Empire but Glory and therefore were contented with the honour of the Victory but sought not to enlarge their Kingdoms and that this Ninus was the first that ever incroached upon another mans dominions and from him it became a custom Bocchus in Salust pleads That he took up Arms only to defend himself for that part of Numidia from whence he had driven Jugurtha was made his by the Law of Armes But a Right may be gained by a Conquerour either so far only as it was in the King or some other Governour and then he succeeds in his Right only and no farther So Alexander after the Battel at Gaugamela was saluted King of Asia And the Romans also claimed unto themselves all that was Syphax's by the Right of War But when the Huns pleaded to the Romans That the Country of the Gepidae was theirs because they had taken their King Prisoner the Romans denied it because the Gepidae were governed by a Prince rather than by a King for that the Kingdom was not Patrimonial And therefore they conclude That he could not lose more than what was his own Or it may also be gained as it is in the people and then the Conquerour hath as much power to alienate it as the people had and thus do some Kingdoms become Patrimonial as I have elsewhere said Book 1. Ch. 3 Sect. 2. Thus the Persians in Menander plead for the Territories of the City Daras For say they since the City Daras it self is by the Right of War subdued by us it is but reasonable that what belonged to that City should likewise be ours Procop. Vand. 2. So Belisarius having conquered the Vandals would have had Lilybaeum in Sicily yielded up to the Romans because as they pretended the Goths had before given it to the Vandals which the Goths denied II. Such an Empire may be gained over the people as is merely despotical Or an Empire may be yet more absolutely gained For such a Government may by War be gained as that which was before a City may cease to be any more a City but be rather reduced as it were into a Family which may be done either by adding it unto another City as Kingdoms were by the Romans annexed to their Empire as Provinces or by annexing it to no other City but by destroying its Charter and nulling the Government thereof As for example When a King maintaining the War at his own proper charge doth so enslave the people that in his Government over them he minds his own private gain and interest only but neither their profit nor safety which kind of Government is Despotical and not Civil Aristotle thus distinguished them Of Empire De Repub. lib. 7. saith he some are altogether fitted to the profit of the Prince others for the profit and safety of the Subjects this is proper to Monarchy that to Tyranny Now the people that are held under this kind of Government are no longer Citizens but a multitude of Servants in a great Family It was well said of Anaxandrida Servorum nulla est usquam Civitas A multitude of Slaves can never constitute a City Which distinction is allowed of by Tacitus Annal. lib. 12. He did not carry himself saith he in his Government as a Lord over his Slaves but as being chief among his Fellow Citizens So Xenophon of Agesilaus What Cities soever he reduced under his obedieâ—ce he made free by exempting them from the slavery which Captives pay unto their Lord and by contenting himself with that obedience that a free people do willingly yield unto their natural Prince III. A mixt Government is sometimes got by War Whence we may understand the nature of a mixt Monarchy that is between that which is Despotical and that which is Civil as namely when our servitude is mixt with some kind of personal liberty Thus we read that to some people the use of Armes are forbidden by the Conquerour and that no Iron shall be wrought into any thing but such Instruments only as are necessary for ploughing the Earth and such like So some people being conquered are enforced to change their language others to alter the whole course of their lives and the like IV. That even the incorporeal things of the people may be by a War gained Now as whatsoever any particular Prisoner had when he was taken was by the Law of Arms his or theirs that took him so whatsoever belongs to the people in general is his or theirs that subdue them if they will take
Postliminy XI How Servants are received by Postliminy how Fugitives and how they that are redeemed Amongst which in the first place are Bondmen and Bondwomen yea even such oft-times as have been alienated and such as have been set at liberty by the enemy because as it is very well noted by Tryphoninus it is not just that his former Master being our Citizen should be damnified by the Right of an Enemy By an Edict of King Theuderick it was ordained That Servants and Tenants being taken by the enemy and returning home should be restored to their own Lords if they were not before bought by some other from the enemy by way of traffick But by the wise Gothick Law a Servant recovered by War was restored to his Master he paying unto him that took him the third part of his just price But in case the Servant were sold by the Enemy then was the Lord to pay the full price for which he was sold with some advantage Therefore that a Servant may be capable of reception it is necessary that his old Master should be either actually possest of him or at least that the Servant be where he may easily have him if he so pleaseth And therefore whereas in other things it may suffice That they are brought within the Bounds of our own Territories this is not sufficient in a Servant to receive the right of Postliminy unless it be also made known to his Master that he is there For as Paulus saith If he lye sculking in Rome and will not be seen nor known to be there he is not yet received by this Law And as herein Servants differ from things inanimate so do they from the case of a Freeman in this That it is not required in them to make them capable of being received that they should return with an intent to follow the fortune of the City whereunto they return for this is required from him only that is to receive his own freedom and not of him that is to be received by another Sabinus For every man hath a free power to make himself a Member of what City he pleaseth but not of the Right of Dominion Neither do the Roman Laws exempt Fugitive Fugitives Servants from this right of reception for even in these may their old Masters claim their Right as Paulus notes lest if we should admit the contrary it should prove injurious not to the Servant who nevertheless is still to remain a Servant but to the Master who would want his service But generally concerning such Captives as are redeemed by the valour of Souldiers that may be truly said by their Generals which some would so wrest as if it were meant of all things Receptos eos non captos judicare debemus Militem nostrum defensorem eorum decet esse non dominum We are to esteem of these not as taken but received whom we ought rather to defend and protect than insult over Those Captives that are ransomed from the enemy are by the Roman Laws theirs that redeem them but the Summ paid being tendered they are understood to be by Postliminy received But by the more recent Laws some things have been changed and that Servants being taken may be encouraged to return they now propose present liberty to such as have been maimed in their service and to the rest after five years as appears by their Military Laws collected by Rufus XII Whether a people being subjected by another may be received by Postliminy But unto us that are Dutch-men this Question is more pertinent Whether those people that were once subjected to the power of another Prince may return back to their former state and condition which will admit of a Dispute in case not he whose the Empire had been but some other of their Associates had recovered them from the enemy whereunto the same Answer I conceive may serve that was before given concerning Servants unless by some Social League it be otherwise agreed Xâ—â—I Whether lands may be said to be received Among things that are received by this Right of Postliminy the first that offer themselves are Lands whereof Pomponius speaks thus Expulsis Hostibus ex Agris quos ceperint Dominia eorum ad priores Dominos redeunt The Enemy being driven out the Lands return to their former Owners Now the Enemy is then said to be driven out when it appears plainly that they are not able to recover it again Thus the Island Aegina which the Lacedemonians took from the Athenians they restored to their Associates who were the Ancient Lords thereof Compare this with what was said above ch 6. §. 7. And the Goths and Vandals being expelled Justinian and the Emperours succeeding restored the Lands unto the Heirs of those who anciently possest it notwithstanding those prescriptions which in other cases the Roman Laws did admit of against them The very same was confirmed by a Law made by Honorius who though Spain had been in the possession of the Vandals for Three hundred Years Vand. l. 1. yet would not permit that any prescription should be pleaded in Barr against the Ancient occupants Concil His pal 2. as Procopius testifies which Law we find also recited in the Council of Sivil where this is added as the reason Non enim erit objicienda praescriptio temporis ubi necessitas interest hostilitatis For no prescription of time is to be pleaded which is enforced by open hostility Now look what Right they have to the Lands the same also they have to every thing that is affixt to the soil for even those places which had been formerly held as Sacred or Religious being taken by Enemies if they do escape that calamity they also as if returned by a kind of Postliminy shall be restored to their former condition as Pomponius notes Wherewith agrees that of Cicero concerning Diana in Segesta P. Africani virtute Religonem simul cum loco recuperavit By the valour of Scipio Africanus Diana recovered both her Temple and worship wherefore the fruits and profits of the ground thus received are likewise to be restored according to what Pomponius writes concerning Lands first drowned and afterwards recovered So in Spain it is provided by a Law that as well the honour and dignity as all the hereditary jurisdictions thereunto belonging may return by Postliminy the greater at any time the lesser if claim be laid unto them within four Years after their reception unless it be some strong fort which if lost and recovered again is the Kings XIV What difference was anciently made between things moveable Concerning moveables the general rule is quite contrary for they do not return by Postliminy but are utterly lost as being lawful prize and may therefore be bought and sold wheresoever they are found they are adjudged his that bought them neither hath the first owner any Right at all to them though he find them either abroad among Neuters or at home in his own Country But
from this general rule we find that in Ancient times such things as were of use in War were excepted which seems to be agreed unto by the Nations for this reason that the hopes of recovering such things to themselves might render them the more cheerful and industrious in regaining them For the Laws of most Cities in those times were made for the encouragement of valour and in favour to military affairs wherefore their consent was easily gained What things were accounted useful in War we have already summed up out of Gallus Aelius but we find them more accurately set down as well by Cicero in his Topicks as by Modestinus As namely Ships that are long and fit for burden but not such as are made for pleasure Mules but such as are accustomed to the Pack-Saddle Horses and Mares but such as will abide the Bit and are fit for service Armes also and Apparel are of necessary use in War but these do not return by Postliminy because they were thought to merit no favour at all who would suffer their Weapons and Garments to be taken from them nay it was accounted as a crime that deserved punishment as may every where appear in Histories And herein we may observe the difference they made between Horses and Armes the one being capable of reception the other not because possible it was that an Horse may break loose of himself and so fall within the Enemies power without any default of his Rider but so could not Arms. And this difference between moveables seems to have continued in use from the Goths until Boëtius lived who expounding Cicero's Topicks seems to speak of this Right as if it were in force at that Day XV. What at this Day But in these latter times if not before this difference is taken away for now no moveables do return by Postliminy as hath been observed by those who are most expert in the Customs of Nations and the same Custome is for Ships as we may perceive in many places XVI What things are received that need no Postliminy But those things which though taken by the Enemy yet were never within their Garrisons have no need of Postliminy because by the Law of Nations the owner never lost his property in them The like may be said of such things as are taken by Thieves and Pyrates Because as Vlpian and Javelinus answer the Law of Nations never granted unto them a power to alter the property of what they got upon which ground it was that the Athenians were willing to accept of the Island Halonesus which some Pyrates had taken from them as King Philip did from those Pirates as of a thing restored by Philip but not as of a thing given them as will appear by the very Epistle of King Philip recorded by Demosthenes And therefore things so taken wheresoever they are found may be claimed only what out of equity we have already concluded to be just so much ought to be allowed him who at his own charge hath possest himself of them as may be conceived it would have cost the first owners themselves to have recovered them XVII Some alterations may be made by the Civil Law as to their own Subjects Now though it be thus by the Law of Nations yet may the Civil Law otherwise determine it as in Spain the Ships that are taken from Pyrates are theirs that take them so also they are among the Venetians Neither is it unreasonable that a private thing should give way to publick profit especially where the recovery of them must necessarily be accompanied with so much difficulty But yet this Law can be no Plea against Strangers who may notwithstanding challenge their own things XVIII How Postliminy is observed among such as are not Enemies but Strangers But that which is more to be admired is that which the Roman Laws do testifie namely That this Right of Postliminy took place not only between enemies but even between the Romans and Strangers But surely this as I said elsewhere * See second Book ch 15. §. 5. was but a Relique of that barbarous Age wherein the general corruption of mens manners had taken away all sense of that natural Society that should be between all Mankind and therefore among Nations that had no publick War one against another there was practised among private men a certain licence of War which their different language and manners seemed to denounce which licence that it might not swell so high as to kill each other it pleased the Nations to limit and to agree That they that were taken on either side being Strangers should be held as Slaves and consequently they introduced the Law of Postliminy which puts a difference between Strangers and Robbers or Pyrates because Strangers do usually agree upon equal Conditions which Pyrates and Robbers disdain It seems that of old it hath been a Case much controverted Whether if the Subjects of a Confederate Nation being Slaves here should escape from us and get home They may be said to return by Postliminy This Question we find proposed by Cicero concerning which Gallus Aelius delivers his opinion thus We saith he Lib. 1. de Orat observe the same Right of Postliminy with a free people with Confederates and with Kings as we do with Enemies But Proculus's opinion was quite contrary I doubt not saith he but that both our Confederates and they that are a free Nation are all Strangers unto us between them and us there is no Postliminy We are therefore to distinguish of Leagues for if any Leagues be made on purpose only to put an end or to prevent open War those Leagues do not for the time to come hinder either the taking of Prisoners or the Right of Postliminy But if in the Articles of the League it be exprest That the Subjects of either Nation may upon the publick Faith safely travel or sojourn in the others Dominions then it is not lawful to take Prisoners on either side and so there is no place for Postliminy And this I take to be the meaning of Pomponius where he saith If there be a Nation with whom we have neither friendship nor hospitality nor League made for friendships sake these indeed are not enemies But yet whatsoever of ours comes to them is theirs and a man that is free with us being taken by them is made their Slave and it is the same if any thing come from them to us and therefore in this case Postliminy is granted In mentioning a League made upon the account of friendship he shews that there may be Leagues that have no Right either of friendship or hospitality And Proculus sufficiently declares That by a people confederated he understood such a people as had promised friendship and safe hospitality where he subjoined these words For what need is there of Postliminy between us and them when they may equally retain as well their own liberty as property in their own things with us as
his Kingdom I know not but yet such the case may be that such a King hath no power to alienate any part thereof as if he received the whole as his propriety upon this condition that he should not divide it But as concerning those things which are called the goods of the Kingdom these may also become the Kings Patrimony two ways either as separable from the Kingdom or as inseparably united unto it if this latter way they may be transcribed See Bo. 2. ch 15. but not unless with the Kingdom if the former they may be alienated without it But such Kings whos◠Kingdoms are not patrimonial can hardly be permitted to alienate the Goods of the Kingdom unless it evidently appear by some Primitive Law or by a continued and uninterrupted custome that they may do it VI. How far the people and successors are obliged by a Peace made by the King But how far forth the promise of a King shall bind his Subjects and Successors hath already been declared * See Bo. 2. ch 3. §. 10 c. namely so far as the power obligatory is comprehended in that Government which should be neither infinite nor impaled within in too narrow bounds but to extend so far only as in probable reason it shall be found convenient But in case the King be absolute Lord * See Bo. 3. ch 8. §. 2. over his People as having at his own charge conquered him and so holds them under a Government merely Despotical and not Civil or if he have gained the Dominion not over their persons but over their things as Pharaoh bought all that the Aegyptians had for Corn or as they that admitted of Strangers into their Houses to whom they prescribe what Laws they please if I say the Government be thus absolute then it is another thing For in this case besides that Right which is regal there is an access of another Right which makes that justifyable which a bare regal power could not VII What power a King hath over his Subjects goods to the making of Peace But here there usually ariseth another Question namely What Right Kings have over the Estates of private men in order to the establishing of Peace as having no other Right to that which particularly belongs to his Subjects than what he hath as a King That the things belonging to Subjects are under the supereminent power of the Commonwealth whereof they are a part we have already proved so that that Common-wealth or he that exercises the supreme power in it hath a Right to make use thereof either by even destroying them or by alienating them and that not only in a case of extreme necessity which is even between private men justifyable but when it extends even to the good of the publick which is always to be preferred before any private mans by the general consent of those who first entred into civil society Which notwithstanding is so to be understood that the whole Commonwealth is obliged to repair the damages that shall befal any of her Subjects or Citizens by reason of any such spoil or alienation out of their publick stock or by a publick contribution whereunto even he who hath sustained the loss shall if need be pay his proportion Neither shall that City or Commonwealth stand discharged from this obligation although at present it be not able to satisfie it for whensoever that City shall be enabled this sleeping obligation may rise up against it VIII But what if the things be already lost by War Neither can I here generally admit of the opinion of Vasquius namely that the City is not obliged to repair the damages of her Citizens sustained by the War because such damages are by the licence of War permitted For this Right of War hath only respect to the People of several Nations as we have elsewhere explained it * Bo. 3. ch 6. §. 2. and partly to such as were in open hostility amongst themselves but not to Citizens amongst themselves who being mutually associated and equally engaged in the defence of their City should in equity esteem every mans to be the common loss But yet doubtless it may by the Civil Law be so ordained that no Action shall lye against such a City for any damages sustained by the War to the end that every man may be the more watchful and resolute to defend his own IX No difference between things got by the Civil Law and things got by the Law of Nations Some there are that place a vast difference between those things which belong to Subjects acco ding to the Law of Nations and those things which are theirs by the Civil Law gra ting a larger Right to the King in taking away these without either cause or recompence but not so in the former but erroneously For a Right of Dominion however lawfully gained hath always by the Law of Nature its proper effects that is to say that it cannot be taken away unless it be for such causes as are naturally inherent in Dominion it self or such as arise from some fact done by him that is the right owner X. What is done by a King is taken by Foreigners to be done for a publick good Now this care and inspection that the things of private persons be not alienated unless it be for a publick benefit appertains to the King and to the Subjects as that of repairing of damages doth to the City and each particular Citizen For the bare fact of the King is sufficient to Strangers that contract with him not only in respect of the presumption which the Dignity of his person brings with it but also in respect of the Law of Nations which permits the Goods of Subjects to stand obliged by the fact of the King XI A general rule for the interpreting of Articles of Peace But as to the right understanding of the Articles of Peace what we have said before must here also be observed * See Bo. 2. c. 16. §. 12. The more of grace and favour any Article contains the more extensively it should be taken and the more of rigour it hath the more restrictively it should be understood If we look at the bare Law of Nature the greatest favour that can be granted seems to be this That every man should enjoy his own wherefore where the Articles are ambiguous such an interpretation should be admitted as may lead us to this sence That he that undertakes a just War should receive what he fights for together with his costs and damages but not that he should get any thing more by way of punishment for this savours of rigour which ought to be restrained But because a bare acknowledgment of wrongs done seldome procures a lasting Peace therefore in Articles of Peace such an interpretation should be admitted as may according to the justice of War make the ballance on both sides even which may be done two ways either by an equal composure of
Polybius notes rather carried himself like a Conquerour Lib. 16. than thought himself one Lib. 29.40 And as to those other things which as well Livy in several places as the Authours before recited do set down as signs of Victory as the taking of the spoil the granting leave to bury the dead and the offering Battel a second time These though they carry some shew of Victory yet of themselves prove nothing but as they are backt with other more demonstrative Aguments of the Enemies Flight Plutarch concerning Agesilaus writes thus Having given the Enemy leave to bury their dead and thereby gained to himself the honour of being Conquerour he went to Delphos So the same Plutarch in the life of Nicias proves both by Law and Custom That he who craves leave to bury his dead seems thereby to disclaim the Victory Neither had they that craved this leave any Right at all to erect Trophees But this as I have already said is no infallible sign of Victory and yet where the Victory is otherwise doubtful he that first departs the Field may more probably be thought to fly than he that keeps it But where there are no certain signs of Victory there every thing is to remain as before the Fight and so both Parties are either to prosecute the War or to draw to a new Agreement for Peace XLVI War sometimes determined by Arbitration Concerning Arbiters Proculus informs us That they are of two sorts whereof the one he makes so Authoritative that whether his award be just or unjust it must be obeyed which saith he is to he observed whensoever both Parties do engage themselves to stand to the determination of a third person The other he makes to be less binding as when both Parties are content to refer their Case to be moderated by some indifferent person An example whereof we have in that Answer of Celsus If the Servant being made free shall swear to perform such services as his Patron shall think fit to impose upon him the imposition of the Patron shall not be binding unless what he imposeth be equal But this interpretation of an Oath though haply it might be warranted by the Roman Laws yet can it not agree with the plain and genuine sense of the words simply taken But yet this is very true That the word Arbiter may be taken in both senses either for a Moderator only such as the Athenians were between the Rhodians and Demetrius or for an absolute Judge whose Sentence must be obeyed And in this sense we here take it as also we did elsewhere treating of the means how to prevent a War Lib. 2. c. 22. And yet even against such Arbiters to whose award both Parties have mutually promised to stand it may be provided by the Civil Law as in some places it is That Appeals shall be granted and Bills of complaint admitted But this cannot be between Kings or between Nations for here can be no superiour Power that can either hinder or dissolve the obliging power of the promise And therefore whether the Sentence be right or wrong we must be concluded by it So that what Pliny sometimes said may very fitly be applied hither Praef. Nat. Hist Summum quisque Causae suae Judicem facit quemcunque elegit Every man makes him to whom he refers himself the supreme Judge of his own Cause This also we must add That it is one thing to discourse concerning the Duty of an Arbiter what he ought to do and another thing to treat of their obligation that are content to refer their Cause to such an Arbitrement For as though there were a Law among the Cities of Italy That one Kinsman should not go to Law with another but that all differences should be determined by Arbiters chosen on purpose yet notwithstanding this Law there were some Cases wherein they might refuse such a reference So also there may be some Cases and some Reasons why Princes may refuse to put their differences to Arbitrement Amongst which this is not the least When no assurance can be given that the persons referring will stand to the award Quis alterutrum coget nostrum qui conventis stare noluerit saith Augustus to Mark Anthony Who shall compel him of us two that refuseth to be determined by the Sentence of our common Judge or Arbiter Private men may be compelled to stand to an Agreement by the publick Magistrate but who shall compel Princes that have no Superior Other Reasons also there may be Albericus Gentilis See pag. 335. as that of Philip King of Spain who refused the Pope to be Arbitrator between himself and other Competitors for the Kingdom of Portugal because the Pope claimed the decision of all such Controversies as his Right wherefore that prudent King was unwilling to add his own example to some ancient ones whereby the Pope might prove himself to be the sole Arbiter of Kingdoms XLVII Arbiters in Cases dubious tied up to Law That which is to be considered in an Arbiter is Whether he be chosen as a Judge or as a Moderator which was the proper Office of an Arbiter as Seneca thought where he tells us * Lib. 2. de benef c. 7. That a good Cause is better referred to a Judge than to an Arbiter Melior videtur conditio bonae Causae si ad Judicem quam si ad Arbitrum mittitur Because a Judg hath a constant Rule to walk by which he must not transgress whereas an Arbiter being freed from the Shackles of the Law hath liberty to judge according to equity and good conscience and therefore can either add or detract from the rigour of the Law and give Sentence not always as Justice shall exact but sometimes as pity and humanity shall direct Rhet. 1. c. 19. Aristotle reckons it as a Duty of an honest and a frugal man to refer his Cause to an indifferent Arbiter rather than to a severe Judge Arbiter id quod aequum est respicit Judex Legem For an Arbiter looks at that which is righteous but a Judge at that only which is legal And therefore is an Arbiter made choice of to the end he may rebate the edge of the Law or otherwise supply that wherein the Law is defective Equity what For equity in this place doth not signifie as elsewhere that part of Justice that expounds the general words of the Law nearest to the mind of the Law-maker for even this also is the Office of a Judge but every thing that is better done than not done although it be not according to the strict Rules of Justice properly so called But such Arbiters as they are very frequent among private men that are Fellow-Citizens or Subjects to the same State and are highly commended especially to us Christians by St Paul 1 Cor. 6. so in such Cases as are ambiguous we are not to allow them so much power as to determine of them For in these we are to
practice hath over us to commend or discommend any thing to humane sense page 111 The Practice of the Saints the best Interpreters of Christs Precepts page 25 The six Precepts written to Adam and Noah page 110 Precepts of Christ for non-resistance in what sense page 33 Precepts of the Gospel whether contained in the Law of Nature page 16 Precepts of the second Table their Order page 379 Predictions Divine whether they confer a Right page 411 Prayers and Tears the best remedy against the Tyranny of Kings page 47 Prey the customes of the Greeks Romans French concerning them 473 474. sometimes given to the Souldiers and why 475. sometimes to several uses 477. when this custome amongst the Romans began 479. it may be disposed of by the Civil Law 478 sometimes to Subjects and Associates ibid. the tenth consecrated to God 468. approved of by God page 468 469 To Prey upon Strangers anciently lawful page 182 After Prey to hunt before the Victory be assured dangerous page 479 Present Government to obey the Duty of a good Subject page 99 Preparations extraordinary for War a just Cause of War page 383 Price of things whence page 204 By Prescription Titles to Empire may be got or lost 100 101. yet not without some presumption of dereliction page 101 Prescription enforced by open hostility not good page 492 By Prescription may be lost what is separable from Sovereignty 101. whether Kings are bound by it ibid. Presumptions sometimes Authoritative page 442 Priests not to be embroiled in War 29. exempted by the Heathens 431. to be spared in War 505. not to marry a Woman divorced a Widow or a Whâ—re page 105 Princes to abstain from War for the safety of their Subjects 418. to regard their honoâ—r more than their power or profit ibid. their lives to be favourably censured 56. not to be obeyed in things contrary to the Laws of God and Nature 427. their vices to be born with patience 56. may alienate the Peoples money for the publick Goods yet satisfaction must be given 179 180. better to forego somewhat of their Right than harrass their Country with intestine War page 99 One Prince may hold of another in Fee and yet remain free and have Supreme Power page 66 The Princes Electors consent includes all the States in Germany in any alienation page 119 The Princes of a free People may by force be restrained page 63 A Prince newly made retains the same place which the people formerly did page 143 Principles of Nature some by themselves manifest others by deduction page 385 Prisoners may be taken for the Debt of a Society 447. released upon their promise to return whether they may be compelled to do so page 567 568 Prisoners they are when carried into the Enemies Garison 470. taken by Thieves no Slaves page 451 A Prisoner released to release another he being dead is bound to pay his own ransome but not to return page 562 A Private man obliging himself to an Enemy whether he do it against the Commonwealth 566 567. should not attempt to judge what is the peoples page 66 Of Private men killing their Enemies Examples page 167 168 c. Whether for Private Christians to kill Malefactors be lawful page 373 A Private man how far what he takes he may make his own page 434 435 Private Agreements with Enemies when void and when obliging page 566 567 A Private Cause in War may be joined with a publick page 66 Private men not engaged naturally for publick Debts farther than proportions page 446 Private profit should give place to publick Pref. viii Private men must be careful of themselves but Princes of others page 495 Priviledges how interpreted 207 208. which to be largely interpreted page 560 Prizes see Reprizals Procreation begets a community in things procreated page 138 139 Prodigal gift may be received 154. but when given by Princes to the detriment of the Commonwealth they may be revoked page 180 Profit to procure to another to spend somewhat of his no Theft page 442 Profit common the ground of the Civil Law Pref. vii unnecessary no ground of War page 406 Prohibition doth not always null the thing being done that is prohibited page 112 Promises all do not derogate from Sovereign Power 45. to be binding they must be accepted 155. whether the acceptance should be made known to the Promiser ibid. Promises naturally Debts 154. made by another binds ibid. when such a Promise may be revoked page 155 A Promise made whether revocable before accepted or the Person to whom dying before accepted ibid. A Promise in it self invalid how it may be made good whether it may be revoked being by another accepted 56. made for the fact of another how far obliging ibid. not to admit of this restriction things remaining as they are unless in one Case 197. made by Oath binds not in two Cases 173. some favourable some odious some mixt page 192. Promises that more damnifie the Promiser than benefit the Promised not to be performed when only true page 198 In Promises some Cases excuse the non-performance page 199 Promises to be understood as the words then signifie if no other conjectures hinder page 191 The Promise of a King made to a third Person in behalf of his Subjects binding page 540 Promises naturally may transfer a Right 150. made through errour or misbelief not binding 566. how far naturally page 152 A Promise made not to sail or go to such a place not to take Armes not to make an escape binds page 567 Promises confirmed by the Oaths of the whole Body of the people inviolable page 539. The force of a Promise page 150 To a Promise the use of reason is required in the Promiser page 152 A bare Promise will bear no Action ibid. A Promise called by the Hebrews a Bond and why ibid. if rashly made binds not ibid seldome made but to loss ibid. Promises transferring a Right require some outward sign page 153 A Promise made out of fear how far naturally obliging 154. binds not to things unlawful ibid. To a Promise when a charge may be added page 156 A Promise made for some Cause vicious obligeth 154. charged with somewhat beneficial to another how effectual page 156 Promises naturally good sometimes null'd by the Civil Law page 154 A Promise made to acts of mercy gratitude c. oblige to our selves but cannot be exacted by Law page 151 Prophecies none not yet fulfilled can be understood but by the Spirit of Prophecy 409. that of Esay about the peaceableness of Christ's Kingdom how understood page 20 Prophecies in expounding Cautions to Princes 409. the pretence of fulfilling them no cause of War ibid. Proportions Arithmetical and Geometrical whether properly they distinguish between Justice Expletive and Attributive page 396 Propriety its beginning and growth 78 80 it came in 1. By partition 2. By Occupancy 80. it may be held by Infants Ideots and Mad-men page 89 Prosperous successes in War
The Most Excellent Hugo Grotius The Reverend W Evats B D Aetat Suae 77. The Most Excell t HUGO GROTIUs OF the rights of Peace Warr Translated into English by the Reverend William Evats B D Printed for Ralph Smith under the Piazza of the Royall Exch in Cornhill T. Cross Senior Sculpsit THE MOST EXCELLENT HUGO GROTIUS HIS THREE BOOKS Treating of the RIGHTS OF WAR PEACE In the First is handled Whether any War be Just In the Second is shewed The Causes of War both Just and Unjust In the Third is declared What in War is Lawful that is Unpunishable With the ANNOTATIONS digested into the Body of every CHAPTER Translated into ENGLISH by WILLIAM EVATS B. D. LONDON Printed by M. W. for Thomas Basset at the George in Fleetstreet and Ralph Smith at the Bible under the Piazza of the Royal Exchange in Cornhill MDCLXXXII THE PREFACE THE Civil Law whether that proper to the Romans or that appertaining to any other people many have endeavoured either to expound by large Commentaries or to expose to present view by Epitomies But of that Law which governs most Nations and the Rulers of diverse People whether it arise from Nature or be Instituted by Divine Authority or whether it be introduced by Custome or Tacite Consent few have hitherto treated and none at all either Universally or Methodically The usefulness of this Treatise though such a Treatise would highly conduce to the Benefit of Mankind The Excellency of this Science saith Seneca is seen in Leagues Covenants Articles of Agreement and Conditions made between diverse free people and between Kings of Foreign Nations and in all the Rights of War and Peace Insomuch that Euripides prefers it before all other knowledge of things either Divine or Humane saying It 's vain of Things of Gods or Men to boast Past or to come unless what 's Just thou know'st And indeed such a Treatise would be so much the more necessary The Vulgar Error concerning the Rights of War by how much we find many as well in this as in former Ages contemning this part of Justice as if there were nothing in it but an Empty Name There is nothing more frequent in every mans mouth than that of Euphemus in Thucydides To Kings and Cities Imperial there is nothing Unjust that is Profitable Lib. 6. And that also which the Athenians being then the most Potent Party in all Greece told the Metians To humane reason those things are Just which an Equal Necessity on both sides imposeth otherwise whatsoever the stronger Party can and will do the weaker Party must suffer As if it were in the power of Fortune to make Oppression just or that no Common-wealth could be well governed without Injustice Whereunto they usually add That the Sword is the Common Judge or Arbiter of all differences arising between Kings and Foreign Nations Neither is this the opinion of the Vulgar only That all Laws are silenced by War but some such like sayings do often fall from Men otherwise Learned and Prudent whereby this Opinion gathers strength There being nothing more frequently opposed one to another than Law and Arms Thus we find them opposed in Enneus to gain their Right Not at the Law but with their Arms they fight The like we find in Horace who speaking of Achilles saith Nothing by Law but All by Arms he claims Old Antigonus laught at him who beholding him busied in battering the Forts and Cities of his Enemy Alber. Gent. presented him with some Commentaries of Justice Marius was wont to say That he could not hear the Cry of the Laws for the Clashing of Arms. Lysander in Plutarch laying his hand upon his Sword said Plut. Lys He that knows how to use This is the best Judge of the Bounds of Empires To the same purpose was that of Caesar Non est Idem tempus Armorum quod Legum Arms and Laws do never flourish at one and the same time Kings saith Seneca grant many things blindfold especially in times of War for no one man though Just can possibly satisfie the desires of so many Armed Men neither can any one man at the same time perform the Office of a Good Man and of a Good General Nay even Pompey himself though otherwise very Modest yet would say Armatus ut Leges cogitem What do ye tell me of Laws that am in Arms Or as Plutarch frames his Answer to the Mamertines What will ye never cease to upbraid us with your Laws whom ye see begirt with Swords Lib. 9. So easily saith Curtius doth War pervert and destroy even the very Laws of Nature Even among Christian Authors we find many such like sayings That of Tertullian shall suffice instead of the rest Dolus Asperitas Injustitia propria sunt Praeliorum negotia Fraud Cruelty and Oppression are the proper Imployments of War Now they that favour this Opinion will doubtless object against me that of the Comoedian If Things uncertain thou with certain Rules Wilt Guide thou 'lt undertake a Task as Bad As he that would with Reason run stark Mad. Seeing then it would be to no purpose to treat of Right if there be no such thing It will very much concern us to commend and defend this ensuing Discourse by a brief but sound Confutation of this Error But that we may avoid Confusion in disputing with a Multitude This Error confuted let us allow them an Advocate and who fitter than Carneades who arrived at that heighth and perfection of Eloquence that he could plead as strongly for Error as for Truth This man having undertaken to decry Justice especially that part of it which we now defend could find no Argument more forceable than this Men saith he Carneades his Argument against Justice have ordained unto themselves Laws for Profits sake various according to their several manners which also they often change with the Times whereas indeed there is no Natural Law or Right at all For all both Men and other living Creatures are by the meer Guidance of Nature led to such things as to themselves are profitable Wherefore there is either no Justice at all or if there be any it is extream folly because it robs it self to enrich others But what the Philosopoer here saith and the Poet after him What 's Just or Unjust Nature can't discern must by no means be admitted For man indeed is a living body but far more excellent than all others and much more differing from the rest than they do one from another as may easily be demonstrated by many actions Man differs from all other Creatures and how which are proper only to mankind Amongst which this is one that he greedily affects Society that is Community yet not any but that which is peaceable and according to the Model of his Understanding Regular with those of his own kind which the Stoicks term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Familiarity Men saith Chrysostom with men
Plutarch reciting that Saying of King Pyrrhus That he would leave his Kingdom to that Son who had the sharpest Sword saith That it was so said only to excite them to enrich his House with Blood and Rapine Whereupon he breaks out into this exclamation Adeo insociabile ferinumque est propositum plus suo habendi So wild and unsociable a thing is Covetousness Aristotle seems exceedingly to blame them who though they are not willing to admit of any King or Governor over themselves but him that hath the true Right yet regard neither Right nor Wrong in the Government of Foreigners The Lacedaemonians saith Plutarch place the greatest part of Honesty in their Country's profit Jus aliud nec norunt Plut. Agâ—s nec discunt quam unde Spartam putant posse augeri They will neither know or learn any other Law than how to enlarge their Territories The like Character do the Athenians give of them in Thucydides That among themselves and to their own Civil Laws The Lacedaemonians prefer publick profit before honesty they were very just but as to Strangers they esteemed exery thing honest that was pleasant and every thing just that was profitable But yet when one of the Spartan Kings pronounced that Common-wealth happy Which Pompey reproves which was bounded by the Sword and the Spear Pompey correcting him said Yea rather that Common-wealth is truly happy that is on every side bounded with Justice For which he might also have produced the Authority of another Spartan King who preferred Justice even before Military Prowess Upon this very ground because all Martial Power ought to be regulated by Justice for in case all men were just there would be no need of valour Justice preferred before fortitude Even Fortitude it self is by the Stoicks thus defined to be Valour contending for Justice When Agesilaus in Plutarch heard the Persian King stiled Great He demanded Quomodo me major nisi sit justior How is he greater than my self unless he be more just Themistius in his Oration that he made to the Emperor Valens elegantly discoursing how Kings should be qualified And to be extended to all Nations if Wisdom were to chuse them saith Not such as should think themselves entrusted with the care of one single Nation only but of all mankind neither should he profess himself to be a Friend to the Macedonians only or to the Romans but to all Men and all Nations whatsoever As M. Antoninus sometimes said of himself Civitas Patria mihi est ut Antonino Roma ut Homini Mundus As I am Antoninus De non esu Animal l. 3. Rome is my Country as I am a Man the World So also Porphyry He that is guided by reason carries himself inoffensively towards his own Subjects yea and towards Strangers yea and towards all men See Cyril against Julian l. 6. Quanto ratione praestans tanto Divinior The more he partakes of Reason the more he partakes of the Divine Nature The very Name of Minos was odious to Posterity for no other reason but because he extended his Justice no farther than his Dominions Each Country groaned under Minos Yoke That even in War some Laws are in force Now what some have fansied namely That Inter Arma cessant Leges In War all Laws lye asleep is so far from truth that no War ought to be undertaken but for the prosecution of a mans Right nor any that is undertaken managed beyond the bounds of Justice and Faithfulness It was very well said of Demosthenes That War might justly be made against those who cannot be compelled to do us right in a judicial way Now against such as are sensible of their own weakness Judgments are forceable enough and so no need of War But against such as are or think themselves of equal strength if they will not do right War may be justly undertaken which also that they may be altogether righteous must be managed with as much Conscience as judgments are usually passed Admit then that Laws may sleep in the midst of Wars yet they must be those only that are Civil and Judicial But such only as are Civil and Judiciaâ— such I mean as are proper to peace but not such as are perpetual and fitted unto all times It was very well said therefore by Dion Prusaeensis That written Laws are of no force amongst Enemies but such as are unwritten That is Such as Nature her self dictates or the consent of Nations constitutes are in force even in the midst of Arms. There are Laws in the midst of Arms. When one asked King Alphonsus Whether he thought himself most indebted to Books or Arms he readily answered That he was beholding to his Books both for the knowledg of his Arms and also for his knowledge of the Laws of Arms. So also Plutarch Sunt apud bonos viros quaedam belli jura Amongst good men there are some Laws to be observed even in War Neither are we so to prosecute Victory as to enrich our selves by base and dishonest gain Eas res puro pioque duello quaerendas censeo This appears by that ancient form of the Romans These things I judge ought to be acquired by a just and pious War These very ancient Romans as Varro notes were very slow in making War and not very licentious when they did make it because they approved of no War but what was pious Camillus was wont to say That War was to be waged with no less Justice than Valour The like Testimony doth Scipio the African give of the People of Rome in his time namely that they always began and finished their Wars justly And another Author tells us That there are Laws for War as well as for Peace A third admires Fabritius for a gallant Soldier but principally for that which in War was very rarely found namely his Innocence as believing that some things usually done against an Enemy were impious What great power and efficacy the justness of a Cause hath Historians do every where declare The goodness of a Cause is of great efficacy in war Proverbial Sayings whilst they ofttimes ascribe the Victory to this as to its principal cause From whence arise these Proverbial Sayings The Courage of Soldiers do either rise or fall according to the equity of their Cause He seldom returns in safety that willingly engageth himself in an unjust War A good Cause is never unattended with hopes Thus Pompey in Appian cheers up the Spirits of his Soldiers We saith he must place all our confidence in the Gods and in the goodness of our Cause as having entred into this War upon honest and just grounds for the defence of the Common-wealth Thus likewise doth Cassius encourage his Soldiers by telling them That the greatest hopes were always where there was the best Cause The like we may read in Josephus Antiq. hist lib. 15. Abs quo stat Jus ab eo
afterwards to the several kinds of Peace and to all Covenants or Agreements made in War which appears for this reason to be worth our pains because as I have said no man hath ever yet treated upon this subject and they that have handled the parts of it have left very much to other mens Industry There is nothing of this subject extant from the old Philosophers neither of the Graecians among whom Aristotle indeed had composed a Book Intituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Rights of War nor among the Christians which yet is a work very desiderable Nay of those Books wrote by the Ancient Romans concerning their Fecial Laws there is nothing traduced unto us but the bare Name They that collected the summs of such Cases as they call Cases of Conscience have as of other things so also of War of Promises of Oathes and of Reprizals wrote whole Chapters I have also seen some special Books written of the Rights of War partly by Divines as by Franciscus de Victoria Henricus Gorichemus Willielmus Mathaeus Johannes de Carthagena and partly by Doctors of the Law as by Johannes Lupus Franciscus Arius Johannes de Lignano and Martinus Laudensis But on so Copious an Argument they all of them said but very little And most of them so that they have confounded things due by the Law of Nature things appertaining to the Divine Law things due by the Law of Nations and things due by the Civil and Canon Laws mixing them altogether without either order or distinction But what all these were most defective in namely the Light of Histories the most Learned Faber in some Chapters of his Semestria but so far only as conduced to his purpose and alledging Testimonies only hath endeavoued to supply So also did Balthazar Ayala but somewhat more fully and Albertus Gentilis yet more fully than Ayala whose Labours as I know they may be helpful to others and confess have been to me so what may be wanting in him either in the way of Teaching or in his Method or in distinguishing of questions and of the kinds of diverse Laws I leave to the Readers Judgement This only I shall say That in his decision of Controversies he usually follows either some few examples not altogether to be allowed or he is led by the Authority of some Modern Lawyers in their Answers many whereof were framed in favour to their Clients more than to the Nature of Justice and Equity The Causes that render a War either Just or Unjust are not by Ayala so much as touched Gentilis hath indeed described some general Heads in such a way as pleaseth himself But many places of such Controversies as are both Noble and very frequent he hath not so much as glanced at Now lest any such should escape us we have adventured to discover the very foundation whereupon we may build our judgement so that it may be easie to decide any such question as shall happen by us to be omitted The Law of Nature how proved and how distinguished from other Laws It remains now that we briefly declare by whose assistance and with what care we undertook this Work And in the first place My care was to refer the proof of such things as belong to the Law of Nature to such Notions as are so certain and undoubtedly true that no man without wronging his own judgement can deny them For the principles of that Law if rightly observed are as plain and evident of themselves almost as those we discern with our outward Senses which if our Organs be rightly disposed and other things thereunto necessary not wanting cannot deceive us Therefore Euripides brings in Polynices asserting the righteousness of his own Cause thus These things being plain and regularly due Both Learn'd and Unlearn'd must confess are true Whereunto he presently adds the Judgment of the Chorus which after the manner of the Barbarians consisted all of Women acknowledging the truth of what Polynices had said The same Author in another place brings in Hermione saying We live not like Barbarians here I trow Whereunto Andromache answers Yet what with them is ill with us is so For the proof also of this Law I have likewise produced the Testimonies of Philosophers Historians Poets and in the last place Orators Not that they are all either equally or rashly to be believed for they speak many things in favour to their own Sect and to the Argument or Cause they undertake to defend but that which many wise men living in several Ages and in several places do all of them affirm to be true and certain that I say ought to be referred to some universal cause which in these Questions brought by us can be no other than either some inference directly drawn from the very Principles of Nature or from the common consent of all Nations The former shews the Law of Nature the latter the Law of Nations The difference between these is not to be understood by the Testimonies themselves The Laws of Nature and Nations how distinguished for the Laws of Nature and Nations are every where by Writers promiscuously used but by the quality of the matter for that which cannot be deduced from certain Principles by certain and concluding Arguments and yet every where appears to be observed we may conclude hath its rise or beginning from the freedom of the Will And therefore I alone have endeavoured to distinguish these two not only one from another but both of them from the Civil Law So also in the Law of Nations In the Law of Nations that which is perfectly right distinguished from that which hath some effects of right I have distinguished that which is truly and in every respect Right from that which hath only got a certain outward effect like unto that of Primitive Right namely that it may not lawfully be resisted or that it ought every where to be defended even by publick force either by reason of some profit or that some greater inconveniences may be eschewed which how necessarily it is to be observed will appear in the contexture of this ensuing Treatise Nor have I been less careful to distinguish between those things that are Right strictly and properly taken whence ariseth the obligation to Restitution And those things that are so accounted because to do otherwise would be repugnant to some other dictate of Right Reason of which diversity of Right we have said somewhat already both here and above Aristotle commended Among Philosophers Aristotle deservedly claims the Preheminence whether we consider the order of his Treatise his acute distinctions or the strength and weight of his Reasons Only I wish that this Principality of his had not for some Ages past degenerated into Tyranny so that Truth for the discovery whereof Aristotle took so great pains finds no greater Oppressor than the very Name of Aristotle I as well here as elsewhere do challenge to my self the liberty of the ancient
Christians who would espouse no Sect of Philosophers Not that they were of their Opinion who held That nothing could be known than which nothing can be more absurd but that there was no Sect that could discern all Truth nor any but what held something that was true Wherefore to collect Truth thus scattered and through so many Sects disperst into one Body this they conceived to be nothing else but to deliver a Doctrine truly Christian Thus thought Justin Martyr as appears by the first of his Apologeticks The Doctrines of Plato were not much different from those of Christ nor were they altogether the same So neither were the opinions of the Stoicks Poets or Historians for every one of them having some impress of Reason saw in part what was consentaneous thereunto and so far they said what was right For those very manners Ep. 96. De ver rel c. 3. saith St. Augustin which Cicero and other Philosophers so highly commended are both taught and learned in all our Churches now flourishing through the world And in another place speaking of the Platonists De Conf. l. 7. c. 9. lib. 8. c. 11. he saith That some few things being corrected they might pass for Christians It was not without cause that some of the Platonists and ancient Christians dissented from Aristotle in this That he placed the very nature of Virtue in a mediocrity of Affections and Actions which being thus placed drove him to this That he compacted two several virtues namely Liberality and Parsimony into one And gave unto Truth two Opposites not equally distant from it namely Vain-boasting and Dissimulation and imposed the name of Vice upon some Things either not existing or which of themselves are no vices as the contempt of Pleasure and Honour and a vacuity of Anger against men But that this foundation of his if taken universally is not rightly laid will appear even from Justice it self whose opposites being too much or too little when he could not find in the affections and their subsequent Actions he was inforced to seek for both in the very things themselves about which Justice was conversant Which very thing is in the first place to leap from one Genus to another which he deservedly blames in others And in the next place To receive less than what is our due may have somewhat of Vice adhering unto it as Circumstances may happen For it may be that what any man so abates he may owe to the relief of either himself or of his Relations But certainly it cannot be repugnant to Justice which wholly consists in abstaining from what is another mans Such another fallacy is this that he would not have Adultery proceeding from Lust and Murder proceeding from Anger to belong properly to Injustice whereas notwithstanding Injustice is nothing else but the detention of another mans Right whether out of Lust or out of Anger or out of an unadvised Charity or out of an Ambition or Vain-glory from whence the greatest injuries do usually arise it matters not For to trample upon all temptations whatsoever rather than to dissolve Humane Society this truly is the proper work of Justice But to return from whence we came True it is that to some virtues Some vertues require the moderation of our affections it falls out so that the affections must be moderated but not because it is proper and perpetual to all virtues that they should be so but because Right Reason whereupon Virtue always and every where attends doth in some prescribe a measure to be followed Others not whereas in others it excites to the highest degree of what we can do It was well said of Agathias Lib. 5. Of the motions of the Mind those are simply and altogether to be embraced in which that which is agreeable to our duty and worthy our choice is sound and sincere But in those which may haply decline unto evil we must not simply and absolutely follow but so far only as is convenient Prudence is a pure and uncorrupted good which none will deny In Anger that which stirs us up to action is commendable but that which exceeds moderation to be avoided as being damagable Love God too much we cannot for Superstition sins not in this that it worships God too much but in that it worships him perversely Neither can we be said excessively to desire things that are good and that are eternal or excessively to fear those torments which are everlasting nor too much to hate sin It was therefore truly said of Gellius Some things there are of so vast extent that they will admit of no bounds or moderation and that are so much the more praise-worthy as they are greater and larger Lactantius when he had largely discoursed of the Affections said Non in his moderandis sapientiae ratio versatur c. True Wisdom consists not in the moderation of these but in the causes of them because these are moved by some things that are without us Neither should a restraint be put principally upon them because they may be but small in the greatest crime and they may be very great without any crime Our purpose is to magnifie Aristotle Histories have a twofold use in this Treatise but with the same freedom as he himself took against his Masters in favour to Truth Histories have a double use as to the matter in hand for it supplies us with examples and Judgments in most cases As for examples The better the Times and the People were the greater was their Authority for which reason we make choice of the ancient Grecians and Romans rather than of others Neither do I despise their judgments especially when they agree For the Law of Nature as we have said is in some measure from hence proved but the Law of Nations cannot be proved otherwise The Opinions and Sentences of Poets and Orators are not of so great Authority but yet we sometimes make use of them not so much because we count them Authentick or Authoritative but rather as Ornaments to Confirm what otherwise we do prove The holy scriptures Of the authority of such Books as holy men by the afflate of Gods Spirit have written or approved we often make use yet with some difference between the Old and New Testament The former is by some quoted for the very Law of Nature but without doubt erroneously for many things therein do proceed from the free-will and pleasure of God Not repugnant to the Law of Nature which notwithstanding is no whit repugnant to the truth of the Law of Nature and so far Arguments may be rightly drawn from thence so that we carefully distinguish that Law of God which God by men doth sometimes execute and that which men execute among themselves We have as nearly as we could avoided both this error and another contrary unto it which is The Old Testament not useless since the New was published that after the times of the
proper to men doth not constitute another distinct Law XII How the Law of Nature may be proved XIII The Voluntary Law divided into that which is Humane and that which is Divine XIV Humane Law divided into that which is Civil that which is more strict than Civil and that which is more large which is also called the Law of Nations how explained and how proved XV. The Divine Law divided into that which is Vniversal and that which was peculiarly given to one only Nation XVI That the Law peculiarly given to the Hebrews did not oblige strangers XVII What Arguments Christians may draw from the Hebrew Law and how I. The order of this whole Treatise ALL Controversies between such as are not associated under one Civil Law as between those who never yet entred into any Civil Society or that are among themselves of several Nations whether they are private Subjects or such as are invested with Soveraign Power whether Kings Nobles or Free people All such Controversies I say are to be referred to the times either of Peace or War But because the end of War is Peace and that there is no such Controversie but may produce War therefore what differences soever do arise by the occasion of the Rights of War shall in the first place be exactly discuss'd That so War it self being duly prosecuted may lead us unto Peace as to its proper end II. War defin'd Being therefore to treat of the Rights of War it concerns us in the first place to know what that War is whereof we are to treat and then what that Right is that we search for War as Cicero defines it is Certatio per vim a Debate by force But custom hath Translated the signification of the word from the Act it self to the state and condition of those that make War for as Philo well observes They only are not Enemies that are actually engaged in Battle whether at Sea or Land but they also that raise Forts plant Ordnances or such like Engines of War on their Walls or Ports though at present they fight not Servius upon those words of Virgil concerning Aeneas In War and Arms None greater was than He makes this distinction By War we understand all consultations and Preparations for War but by Arms only the use or exercise of them Therefore in another place he concludes that all that may be reckoned a time of War wherein either things necessary for fight are preparing or the fight it self last so that War may be defined to be the State or Condition of those that contend by force as such Which general acception of the word comprehends all the kinds of War whereof we are to treat not excluding that which sometimes happens between private persons as Duels or single Combats which certainly are precedent to those Wars that are publick and being of the same nature may well be comprized under the same proper name Which sense the Original word will very well bear for from the Old word Duellum is made this new word Bellum as of Duonus is made Bonus and of Duis Bis. Now Duellum signifies a contest between two in the like sence as we express Peace by Vnity or as the Greeks do War by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in respect of the Multitude of people that are engaged in it as also they sometimes do by the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in respect of those direful effects that attend it Now as the Original of the word will justifie this large signification so will the common use thereof bear it But if it be objected that this word is taken generally for that contest by force of Arms that is publick I answer that this argues not that single Combats may not be also so called For most certain it is that the name of the Genus doth often peculiarly adhere unto that of its Species which is most excellent As to Justice I do not admit of it in this definition because it is the Subject of this whole Treatise to enquire Whether any War be Just and what War is so But that which we seek must be distinguisht from that concerning which we seek III. Right as it relates to Action defined and divided Whereas the subject of this whole Treatise is The Right of War we are in the first place to understand what we said just now whether any War be just And in the next place what it is in War that is just For we understand in this place by the word Right that which is just And that also rather in the Negative than in the positive sence so as we here term that just which is not unjust Now that we account unjust which is repugnant to the Nature of a Rational Society As for example to rob another to enrich our selves De off l. 3. is as Cicero observes contrary to Nature which he thus proves If this saith he were allowed all Society and Communion between men would quickly be dissolved So for one man to betray or deceive another is unjust as Florentinus proves because it breaks that bond of Alliance wherein Nature hath linkt together all mankind for mutual defence De Ira l. 2. c. 32. Which Seneca thus Illustrates Just as all the members of the body ought to be equally solicitous one for another because in the preservation of each part consists the welfare of the whole so ought all men to forbear each other because they are born for Society For it is not possible for any Society long to stand unless every part thereof be cherished and defended by the whole Ep. 48. So in another place That Society is Faithfully and religiously to be preserved which so Vnites us one to another that we all agree in this That there is somewhat whereunto all mankind hath a Common Right But as of Societies some consist of Persons that are equal as that of Brothers of Citizens of Friends and Allies and some consist of Persons that are unequal and these also vary according to their degrees of Excellency as that of Parents and Children of Masters and Servants of Kings and their Subjects Numa God and Man for such a Society there is if Philo and Plutarch deceive us not Even so things may be said to be just or unjust respectively for one thing may be just in respect of those that live together being Equals and another one thing may be just in respect of the persons Governing and the persons Governed as such whereof this shall be said to be the Right of Rulers and that the Right of Equals IV. Right as it is a quality divided into faculty and fitness There is also another signification of the word Right which though different from this doth notwithstanding arise from it and respects the qualification of the person in which sence it signifies a moral Quality in any person sufficient to enable him justly to have or to do something Now this Right
is that which governs any City Now a City is a compleat company of free-men associated for the defence of their own Rights and for their common profit That Law that is of lesser extent and ariseth not from the Civil Power though subject unto it is various comprehending under it that of a Father over his Children that of a Master over his Servants and the like That Law which is more extensive than that which is Civil is that of Nations which derives its authority from the joynt consent of all or at least of many Nations I say of many because there is hardly any Law besides that of Nature which also is usually called the Law of Nations that is common to all Nations yea oft-times that which is accounted the Law of Nations in one part of the world in another is not as we shall shew hereafter when we treat of Captivity and Postliminy Now the Law of Nations is proved in the same manner as the unwritten Civil Law is namely by continual use and the testimony of men skilful in the Laws and therefore Dio Chrysostome calls it the daughter of time and experience and to this purpose are the Annals of former ages of singular use XV. The Divine voluntary Law divided The divine voluntary Law is that which is warranted by the express will of God as may be understood by the very word it self whereby it is differenced from the naturall Law which in some sense may be termed Divine also And here that which was said by Anaxarchus in Plutarch though somewhat confusedly may take place namely That God doth not will things because they are just but things are therefore just that is rightly due because he wiâ—s them Now this Law was given by God either to all mankind or to one Nation to all mankind we find that God gave Laws thâ—iâ—e That this voluntary Divine Law was as obliging before the writing of it in â—ooks or Tables as it was or is since is clear for first if the obliging power were only from the time when it was written by Moses they that lived before Moses were no waies obliged by it because till then it was not written Secondly then the obligation must needs extend it self to all the parts of the Law so written and so to every circumstance of the Judaical Sabbath as well as to the acknowledgement of the only true God Neither is it sufficient to say it was written in the times of Adam and Noah it being uncertain unto us now whether there were so Ancient a Record or not much more * whether that which was written were as the Tables of the Law written by the finger of God * Dr. Hammond The Six Laws given by God to Adam and Noah as First that against strange and false worship Secondly that of blessing the name of God that is of adoring invocating and praising God Thirdly that of judgment that is of erecting of Magistrates and requiring administration of Justice Fourthly That of disclosing Nakedness i. e. setting bounds to lust and prohibiting Marriages within such degrees Fifthly That of shedding blood against Homicides And Sixthly That against Theft and Rapine and of doing to all as they would be done unto are no where recorded in holy Writ yet were they as obliging to the Jâ—ws that knew them as any of the written Laws of Moses we shall find them toucht at Act. 15.20 â—ut so surely that had it not been for those writings of the Jews that were never within their Canons nor in ours we of these times had never known to what that reference belonged And as all the Laws that were given to Adam Noah and the rest of the Patriarchs although not committed to writing nor traduced to us yet lost nothing of their obliging power to them to whom they were given so in the times of the new Law although Christ revealed much of his Fathers will in Sermons and other occasional discourses very few whereof are written and those that are were not so written until many years after his Resurrection yet will no man say that because they were not left written therefore they did not oblige his Auditors First Immediately after the Creation of man Secondly in the Restauration of mankind after the Floud and Thirdly in that more perfect reparation by Christ Tâ—ese three Laws do doubtless oblige all mankind as soon as and as far forth as men arrive at the knowledge of them XVI The Law given to the Jews did not oblige strangers Of all the Nations of the Earth there was but one to whom God vouchsafed to give Laws peculiar to themselves which was that of the Jews What Nation saith Moses so great to whom God hath given Statutes and judgements so righteous as this whole Law Deut. 4.7 So likwise Davia The Lord hath shewed his word unto Jacob his Statutes and ordinances unto Israel Non ita fecit genti ulli He hath not done so to any Nation neither have the Heathen knowledge of his Laws Psalm 147. Doubtless then those Jews and among them Tryphon himself in his disceptations against Justine do grosly err who hold That even Foreigners if they would be saved must submit to the yoke of the Mosaical Law For that Law binds none but those to whom it was given and who these are the Preface to the Law it self will plainly declare Audi Israel Hear O Israel saith the Text And every where we read that the Covenant was made with them and that they were chosen to be the peculiar people of God which Maimonides acknowledgeth to be true and proves it out of Deut. 33.4 But even amongst the Jews there always lived some Foreigners being holy men and such as feared God as the Syrophoenician Woman Mat. 15.22 Cornelius Acts 10.2 The Grecians mentioned Acts 18.4 whom they called the pious among the Gentiles such as are termed strangers Lev. 22.25 and a sojourner Lev. 25.47 whom the Chaldee Paraphrast calls an inhabitant that is uncircumcised whereof we may read Exod. 12.45 who was distinguished from a Proselyte who though a Foreigner yet was circumcised as appears bâ— comparing this place with that of Numb 9.14 These uncircumcised Sojourners Maimonides admits may be partakers of the blessings of the life to come St. Chrysostome upon the second to the Romans Rom. 2.9 10. where St Paul mentions the Jew and Gentile wrâ—tes thus What Jew and what Gentile doth St. Paul here mean surely those saith he that lived before Christ as Job the Ninevites Melchisedeck Cornelius c. And what Graecians doth he discourse of Surely not such as were Idolaters but such as worshipped God according to the Law of Nature who setting aside the Jewish Ceremonies religiously observed all things that appertained to an holy life And again The Graecian he calls not him that worshipped Idols but him that was pious and devout though be submitted not to the Jewish Rites And thus likewise doth he expound that of St. Paul To him
that is without Law as being free from the Law And in another place A Greek he calls not him that was given to Idols but him that invoked the true God Orat. 2. de statuis and yet observed not the Jewish Ceremonies as their Sabbaths their Circumcision their ablutions and the like but yet endeavoured to steer the whole course of his life according to the Rules of wisdom and true piety Now these as the Hebrew Doctors themselves testify were bound to live in conformity to the Laws given to Adam and Noah abstaining from Idols and Blood and from other things hereafter exprest but not to the Laws peculiar to the Jews and therefore whereas it was not lawful for the Jews to eat the flesh of any thing that dyed of it self yet it was lawful for the stranger living among them so to do Deut. 14.21 unless it were to some particular Laws wherein it was expresly provided that as well the stranger as the home born was bound to observe them For we read that it was lawful to the stranger that never submitted to the Mosaical Law to worship God even in the Temple at Jerusalem yet so that he stood in a particular place by himself separate from that of the Hebrews as you may read 1 Kings 8.41 Jo. 12.20 Act. 8.27 Neither did Elisha enjoin Naaman nor Jonas the Ninevites nor Daniel Nebuchadnezzar nor the other Prophets perswade the Syrians Moabites or Aegyptians unto whom they wrote that there was any necessity at all for them to submit to the yoke of the Jewish Law And what I say here of the whole Law is true also of Circumcision which was as it were the introduction unto it with this only difference That to the whole Law of Moses the Israelites only were bound but to that of Circumcision all the posterity of Abraham And from hence it was that the Idumeans being the off-spring of Esau Ismael or Cetura were compelled by the Israelites to be circumcised as both the Jewish and Grecian Histories inform us Besides of all other Nations Rom. 2.14 that of St. Paul holds true Seeing that the Gentiles who have not the Law do by Nature the things of the Law that is by their own manners and Customs flowing from the original fountain of reason unless any man had rather referr the word Nature to the words foregoing thereby opposing the Gentiles to the Jews who as soon as they were born had their Law instilled into them these having not the Law are a Law unto themselves as shewing the work of the Law written in their hearts their thoughts and Consciences mutually accusing or excusing themselves And that also in the 26th verse of the same Chapter If the uncircumcision keep the Law shall not his uncircumcision be accounted for Circumcision Thus doth Chrysostome expound that place of St. Paul before cited The Gentiles by Nature that is by the very Dictates of Right reason And presently after in this saith he are they to be admired That they stood in no need of the Law to guide them And that instead thereof they were guided only by the use of reason and the light of their own Consciences Thus also doth Tertullian argue against the Jews of his age Long saith he before Moses wrote the Law in the Tables of stone there was as I will justifie a Law naturally understood and observed by the Patriarchs Ant. lib. 20. c. 2. And therefore Ananias the Jew in Josephus did rightly inform Izates Adiabenus That God might be duly worshipped and well pleased with us Although we were not circumcised And Triphon himself grants this to Justin That there was some hopes left him of a better condition though he did persist in the way of his own Philosophy Now the reasons why so many strangers among the Jews were circumcised and thereby obliged to keep the Law as St. Paul expounds it were The reason why strangers were circumcised Gal. 5.3 partly that they might partake of the priviledges of the Jewish Commonwealth for Proselytes enjoyed the same Rights with the Israelites as may be gathered out of Numb 15. and is plainly asserted Exod. 12.27 And partly that thereby they might be made capable of those Promises which were not common to all Nations but peculiar to the Jews only Although I cannot deny but that there grew up afterwards an erroneous opinion affirming that without the pale of the Jewish Church there could be no Salvation From hence then we may collect that we Gentiles stand obliged to no part of the Mosaical Law as a Law properly so called because all obligation beyond that which ariseth from the Law of Nature is derived from the will of the Lawgiver But that it was the will of God that any other Nation besides the Jews should be bound by that Law cannot be made out by any solid arguments we need not therefore as to our selves prove the abrogation of that Law because it cannot be said to be abrogated as to them whom it never bound yea even to the Jews themselves the obliging power was abolished as to the Ceremonial Law as soon as the Evangelical Law began to be promulgated which was plainly revealed to St. Peter Acts 10.15 Acts 10.15 And as to the rest after that people ceased to be a people by the destruction of their City and that general desolation that succeeded without any hopes of restitution but we who are strangers are not freed from that Law by the advent of Christ but by Christ we who before had nothing but a faint and obscure hope placed only in the goodness of God are now strengthened by a clear and firm Covenant assuring us that we also may grow up together with the Jews being the sons of the Patriarchs into one Church the Judaical Law which was that Partition-wall that kept us asunder being now taken away as St Paul testifies to the Ephesians Eph. 2.14 XVII What Christians may learn from the Mosaical Law Since the Mosaical Law cannot directly oblige us as hath been already proved let us now see of what other use it will be to us as well in this case of War as in the liâ—e doubtful cases the knowledge of this being very necessary for the clearing of diverse cases For in the first place from hence we may be assured that what was heretofore commanded in that Law is not repugnant to the Law of Nature For since the Law of Nature is as I have already said perpetual and immutable nothing can be commanded us by God contrary to this Law because God can never be unjust Psal 19.8 Rom. 7.12 Besides the Law of Moses is as the Psalmist speaks pure and right and as the Apostle saith Holy just and good which places are to be understood of the precepts of the Law only But as to the permissions of the Law we must speak of them more distinctly Now legal permission for that which respects the bare fact and
imprisonment yea and even to death it self This then being agreeable to the Laws of Nature and Nations and being the end of all municipal Laws must needs be the Dictate of right reason and so the voice of God himself whereunto whosoever willingly conforms himself will certainly so moderate his desires that he will never covet what is not his own nor either by force or fraud impoverish others for his own private gain than which nothing can be more unnatural nothing more unreasonable nothing more destructive to humane Society Neither is it against the Nature of humane Society for a man to provide for himself so as he do not damnifie his Neighbour and by consequence that force which doth not violate another mans right is not unjust which the same Cicero thus expresseth Since there are but two sorts of decertations the one by arguments the other by plain force the former being proper to men the other to beasts we ought to make the latter our refuge when by the former we cannot prevail And in another place Quid est quod contra vim fieri sine vi posset Ep. Fam. l. 12. ep 3. What remedy can we have against force but by force So Vulpian To repel force with force is a right that Nature ordains for all creatures Arms against Arms all Nations do allow Ovid. II. This proved by Histories What I have already laid down namely that it is not every War that is repugnant to the Law of Nature may be farther justified out of the Sacred Story For God by his High-Priest Melchisedeck did approve of the War made by Abraham and his Confederates upon those four Kings that came to plunder Sodom Yea and Melchisedeck blesseth God for the Victory Blessed saith he be the most high God who hath delivered thine enemies into thine hand Gen. 14.20 And yet had Abraham no special Commission from God for it but was excited and perswaded thereunto by the mere Law of Nature being himself a man not only exceedingly holy but very wise according to the Testimony that Berosus and Orpheus give of him The War made by the Israelites upon the seven Nations whom God delivered up unto them I purposely omit because they had a special warrant from God to make War upon that people who had highly provoked him and therefore those Wars are in holy Writ called The Wars of the Lord being undertaken by Divine not humane authority More to our purpose was that War made by the Israelites under the conduct of Moses and Joshua against the Amalekites who had forceably opposed them in their passage towards Canaan which though it was not commanded to be done yet being done was approved of by God Exod. 17. Exod. 17.14 Nay farther God himself prescribed unto Moses certain general and lasting Rules and Ordinances how he should make War whereby he sufficiently testified That War might sometimes be just Deut. 20.10.15 though we have no special command from God to make this or that War for there Moses makes a manifest difference between the case of the seven Nations and the case of other people For these they might receive to mercy but not them And seeing he doth not prescribe for what particular causes they might make a just War it may reasonably be presumed that those causes may easily be discerned by the very light of Nature such was the cause of the War that Jephtha made against the Ammonites for the defence of their boundaries Judg. 11. And that which David was enforced upon against those who had violated the rights of his Ambassadors 2 Sam. 10. And it is worthy to be observed what the Author to the Hebrews records concerning those pious Heroes Gideon Baruck Sampson Jephtha David Samuel c. That by faith they subdued Kingdoms and put whole Armies of the aliens to flight Heb. 11.34 Where under the notion of faith Heb. 11.34 is included a full assurance they had that what they then did was acceptable to God And upon this presumtion also it was that David is said by a wise woman to fight the Lords battle and made a pious and just War 1 Sam. 25.28 which could not be if all manner of War had been utterly unlawful III. By examples To the authority of Sacred Story we may add for greater confirmation the universal consent of all or at least of the wisest of all Nations concerning that force whereby our lives are defended Cicero gives us the Testimony of Nature it self Est haec non scripta sed nata lex This saith he is no written Law but a Law that is born with us Pro Miloâ—e that if our lives be endangered either through force or Treachery all means we can use for our safety are just and honest And again This the learned are taught by reason the unlearned by necessity the Nations by custom and the very beasts themselves by natural instinct to repel by all means whatsoever all force and violence that shall be offered us whereby our bodies our members or our lives shall be endangered So Cajus the Lawyer Against all imminent dangers De Bello Jud. l. 3. c. 25. natural reason teacheth us to defend our selves And Florentinus Whatsoever any man doth in his own defence is just and lawful Josephus also informs us That to preserve life is a Law that Nature her self hath imprinted in all living Creatures And for this cause it is that they who endeavour to dispoil us of our lives are justly accounted our enemies Which indeed hath so much of natural equity that even amongst beasts who as I have said already have nothing of Justice or Law among them more than a faint shadow or resemblance of it we distinguish between that beast which of his own accord assaults us and that which assaults us in its own defence And Vlpian notwithstanding that he had said before That Beasts wanting the use of reason could not be said properly to do wrong yet he presently subjoyns that when Rams or Bulls fight and kill each other by the Law of Qu. Mutius they were to distinguish between them so that if he perished that was the aggressor the action was null but if he perished that was provoked the action was good The ground of which Law is set down by Pliny Because saith he there is no sensible Creature but what is impatient of an injury and being assaulted will assault again For as he well observes Lyons will not prey upon Lyons nor Serpents bite or sting Serpents yet if any violence be offered them there are none but will express somwhat that is like unto anger none so stupid but being hurt will to his utmost power defend himself so that in all contests that which is defensive is the most just because Natura potior est salus nostra quam adversarii pernities * Quintil. l. 7. c. 2. See Philo in the Prefâ—ce upon the fifth Commandment Our own preservation is more agreeable to
his time and those sayings that are there rehearsed as spoken to them of old were meant as spoken by Moses himself not by the Lawyers either in the same words Exod. 20.13 Lâ—vit 20.21 Exod. 20.14 Deut. 24.1 Exod. 20. â— Lev. 24.20.19.18 Exod. 34.2 Deut. 7.1 Exod. 27.19 or to that sense as Thou shalt not kill whosoever killeth shall be in danger of judgment Thou shalt not commit adultery whosoever shall put away his Wife let him give her a Writing of Divorcement Thou shalt not forswear thy self thou shalt perform unto the Lord thine oaths An eye for an eye and a tooth for a tooth that is thou mayst exact this in judgment so thou shalt love thy Neighbour that is an Israelite and hate thine enemy that is those seven Nations with whom they were forbidden to contract friendship or to whom they ought to shew no mercy unto whom we may add the Amalekites with whom they were bound to have a perpetual war Deut. 25.19 Now the better to understand the words of Christ we must necessarily understand that the Law given by Moses will admit of a twofold construction either in such a sense A twofold sence of Moses his Law Carnal as is common with all humane Laws namely as it restrains men from gross sins by the fear of publick punishments Heb. 2.2 And so it was given by Moses to restrain the Hebrews in the state of a Civil Government Heb. 7.16 Where it is called the Law of a carnal Commandment as it is also in another place called the Law of Works Rom. 3.27 Rom. 3.27 Or it is taken in a sense more proper to a Divine Law namely as it requires also the purity of the mind and such duties the omission whereof no humane Laws do punish In which sense it is called a spiritual Law Rom. 7.14 Spiritual Comforting the soul Psal 19.9 which the Latins make the 18th The Pharisees and Lawyers contenting themselves with the Carnal part of the Law wholly neglected the spiritual as superfluous and therefore never instructed the people therein as not our own writers only but Josephus and many of their own Doctors do testifie against them But as to the spiritual part also we must know That those vertues which are required from us Christians were either commanded or commended unto the Hebrews also although not in that degree and Latitude as they are unto us which we have already proved For a more perfect and exact obedience is now required from us Supra ch ◠§. ult than was formerly from the Jews because the coming of Christ doth heighten our hopes by far more precious promises And the graces of his spirit which descended unto them but as a little dew upon the Herbs falls on us as showers on the Grass Chrysost de virg c. 44. Vnder the Law God did not bind us up to so great a measure of vertue as hâ—â—ow doth under the Gospel then it was permitted to take some revenge for injuries done as to revile them that reviled us we might exact an eye for an eye a tooth for a tooth it was then permitted unto us to swear though not to for swear and to hate our enemies It was not as yet forbidden to be angry to put away a Wife that offended us or to marry another nay nor to have diverse at the same time Great was the Indulgence of the Old Law in these and the like cases But since the coming of Christ the way to heaven is made much straiter and narrower than before both by the addition of many new precepts not given in the old Law and also by straining up those that were so given to a much higher Key Christ therefore opposeth his own doctrine to the doctrine of the ancients in both these senses first because his own took not hold of the outward man only to restrain it by pure negatives as other Laws did but restrained the inward man also obliging to positive duties whose omission was not punishable by Moses his Law But also in the second place because it enjoyned spiritual duties in that heighth of degree that neither Moses nor any other Law-giver did ever reach whence it is plain that what Christ delivered was not a bare interpretation of Moses his Law as some would have it But yet that these things should be known is not only pertinent to the matter in hand but to many other purposes lest we should attribute greater authority to Moses his Law than indeed is fit or due unto it VII That it is not repugnant to the Gospel to make War Omitting such arguments as are less convincing the first and principal Testimony whereby it may easily be proved that all right of making War is not fully taken away by the Evangelical Law is that of St. Paul to Timothy I exhort you saith St. Paul that above all things Prayers and suplications Intercessions and giving of thanks be made for all men for Kings and such as are in authority 1 Tim. 2.1 2 3. that we may lead a quiet and peaceable life in all Godliness and honesty for this is good and acceptable in the sight of God our Saviour who would have all men to be saved and to come to the knowledge of the truth From whence these three things are to be learned first that it is acceptable unto God that Kings be made Christians Arg. 1 Secondly that being made so yet they cease not to be Kings Which Justin Martyr thus expresseth We pray saith he that Kings and Princes may together with their Regal Power retain a sound and perfect mind And this also in the third place we may learn that Christian Kings should use their utmost endeavours That other Christians may lead under them godly and Christian lives But you will happily say How Surely the same Apostle explains himself elsewhere thus He is the Minister of God for thy good and if thou do ill then fear The right of the Sword Non enim frustra gladium gerit For he beareth not the sword in vain for he is Gods Minister an avenger to execute wrath upon them that do evil Under the right of the Sword is comprehended all manner of restraining or coercive authority and so it is also sometimes understood by Lawyers yet so that the chief and principal part that is the true and proper use of the Sword is not excluded Psalm 2. The Second Psalm doth very much conduce to the understanding of this power which Psalm though verified of David yet was much fuller and clearer understood of Christ as we may collect out of Acts 4.25 and Acts 13.33 and out of Heb. 5.5 Now that Psalm exhorts all Kings to kiss the Son of God with reverence How Kings serve God as Kings that is to express themselves his servants as they are Kings for so St. Aug. rightly expounds that place whose very words as being pertinent to our purpose sound thus Herein saith he do
amongst us that live not conformably to those precepts being only in name Christians that such should be punished and that by you is our desire as well as yours From whence we may collect that it was St. Pauls opinion even after the Gospel was published that there were some crimes which in common equity deserved death which very thing is granted by St. Peter also 1 Pet. 2.19 20. But if it had been Gods will that no Capital punishment should have been executed after Christs coming St. Paul might have purged himself but he thought it not convenient to instil such principles into the minds of his hearers as though it had not been as lawful then as formerly to punish Criminals with death wherefore he waveth this Plea and submits to the ancient Law If I have done any thing worthy of death I refuse not to die Now having thus proved that after the Christian Law was given it was lawful to punish obstinate Malefactors with death I take it to be sufficiently proved that it is Lawful for Princes to make War namely against such a multitude of offenders as shall by force of Arms infest a Nation who unless they be by force subdued will never acknowledge their own guilt For though the power of these offenders and their obstinate resolution may be a prudent consideration to perswade Princes sometimes not to execute it yet certainly it diminisheth nothing of their right so to punish Arg. 11 The last Argument may be this that the Christian Law did abrogate that Law of Moses only that did separate the Gentiles from the Jews Eph. 2.14 But those things which have the reputation of being honest either by the Law of Nature or by the unanimous consent of all Civilized Nations the Christian Law is so far from taking away that it comprehends them under that general precept of all honesty and vertue Phil. 4.8 1 Cor. 11.14 And as to the Capital punishments of Malefactors and the repelling of injuries by force these may be ranked among things laudable and may well be referred unto those two excellent vertues Justice and beneficence But here on the by we are not to omit the error of some who wholly attribute the lawfulness of the Jewish Wars against the seven Nations to the grant that God made unto them long before of the Land of Canaan whereas this indeed may be one but not the only cause For as well before as after the possession of that Land many pious and just men did make War by the guidance of mere natural reason upon several other occasions As King David did for the affronts offered unto his Ambassadors neither are those things which every man enjoys by the right of humane Laws less his own than that which is given him by God himself nor is that right either lessened or taken away by the Christian Law VIII The Arguments for the adverse opinion answered Esay 2.4 Orat. Christian esse Deum Euseb de praep lib. 1. c. 10. Now by poising these arguments with those brought on the adverse part the judicious may easily find whether of them are weightiest And in the first place they urge that of Esay And it shall come to pass that the people shall break their Swords into Plough-shares and their Spears into pruning hooks Nation shall not lift up Sword against Nation neither shall they learn War any more Which words of Esay St. Chrysostome applies unto that universal peace that the world enjoyed under the Roman Empire Neither was it foretold only saith he that this new Religion should be firm stable and unshaken but that therewith there should come peace to the whole earth But this Prophecy of Esay as I take it is to be understood either under some condition as many others are as that such should be the state of affairs in case all Nations should submit to the yoke of Christ and live according to his Law whereunto there shall nothing be defective on Gods part for most certain it is that if all were Christians or all that call themselves so would live after the rules of Christ there would be no occasion for Capital punishments and consequently no use at all of the Sword So Justin writes of the Christians in his time Non pug namus in hostes We saith he fight not against enemies and thus Philo testifies of the Esseni There is none among them that make either Javelins Arrows Swords Helmets or any other instruments of War So Chrysostome Si esset inter homines qualis oportet dilectio nullas fore poenas capitales If there were that perfect love among men that there should be there would be no need at all of Capital punishments Then also as Arnobius speaks would Iron and Steel be converted into more innocent and profitable instruments than for men therewith to kill and destroy each other Or this place of Esay is to be understood simply and purely as the words import and then it is apparent that this prophecy is not as yet accomplished but the fulfilling thereof as that of the general conversion of the Jews is yet to be hoped for but take it as we please in either sense nothing can be from thence concluded against the lawfulness of War so long as they that heartily endeavour to live in peace are not suffered to enjoy it Or as the Psalmist hath it whilst some are endeavouring after peace others are preparing themselves for battel Mat. 5. expounded Many arguments are usually drawn from the fifth of St. Matthew For the resolving whereof it is convenient that we should remember what a little before was said that had our great Law giver intended to have abolished all Capital punishments and this Right of making War he would certainly have done it in most plain and express terms the matter being so weighty and so new and the rather because none of the Jews could conceive or imagin but they were obliged to Moses his judicial Laws so long as their Commonwealth should stand This being thus premised let us orderly examine what plain and concluding power these places of Scripture have to evince the thing they are brought for Answered The Second place they urge is this Ye have heard it said an eye for an eye and a tooth for a tooth but I say unto you do not resist him that doth thee an injury but if any man strike thee on the one cheek turn to him the other also From hence some do infer That it is unlawful either to repel or to avenge an injury whether publickly or privately But this cannot be enforced from the words of Christ who doth not there address his discourse to the Magistrate but to the person injured neither doth he there speak of every injury but of such slight ones as a box on the eare and the like the precept following seems to restrain the words preceeding as if they were too general If any man will sue thee at the Law Lib. de
into Arms before he was baptized and him that listed himself after Baptism For saith he Their condition is plainly otherwise who being first Souldiers were afterwards converted to the faith as theirs whom St. John admitted to his Baptism or that faithful Centurion's whom Christ approved of and whom St. Peter instructed Provided that having once embraced the Christian Faith and being sealed up thereunto by Baptism they either renounce the War presently as some have done or take special care that they do nothing therein that may offend God Whereby it is evident That some Christians did or at least might continue in Arms after Baptism which certainly would not have been permitted had Warfare been by Christ absolutely forbidden no more than Southsayers Magicians and the professors of such like prohibited Arts were permitted after Baptism to persist in their Diabolical Professions Tertullian tells us That they who professed such Arts as the Christian Discipline did not allow of were not to be admitted into the Church of Christ De Idol De fide op Ep. 65. And St. Aug. instances amongst others in common Whores Bauds and Stage Plaiers none whereof until they had removed their professions Observ 2 would he admit unto the Sacrament Of the same opinion also was St. Cyprian War declined not as in it self unlawful but to avoid Acts. repugnant to Christianity As the Jews did Secondly We may observe that in the Primitive times Christians did either disapprove or avoid the Wars not because it was in it self unlawful but in respect of some circumstances incident to those times which would not admit of the exercise of War without the doing of some acts which were repugnant to Christian Religion Thus Tertullian forbids a Christian to go to War not that it was unlawful but because the Discipline of War did sometimes enjoyn such acts as the Discipline of Christ could not allow of In the Epistle of Dolobella to the Ephesians as it is recorded by Josephus the Jews desire to be exempted from all military expeditions not simply as being unlawful but that being mixt with strangers they could not sufficiently perform the Rites and Ceremonies of their own Law nor would their Religion permit them to make long marches or to perform acts of Hostility on the Sabbath day and the same Josephus tells us that for these very reasons the Jews got leave of L. Lentulus to be discharged the Army The same Historian also relates that the Jews being banished Rome some betook themselves to the Wars others were punished for refusing to take Arms in reverence to their Country Laws and for the reasons above mentioned whereunto they sometimes added a third namely Because they thought it a sin to make War against their own Counrty-men especially being persecuted for observing their own Country Laws Jos Ant. l. 11. Lib. de Idol But being freed from these inconveniences they refused not to take Arms and that under foreign Kings but still under condition that they might enjoy their own Laws and worship God after the manner of their Fore-fathers Unto these dangers that the Wars exposed them unto may be added that which Tertullian objects That they were sometimes commanded to swear by the Gods of the Gentiles De Coron Militis Mars Jupiter c. Which unto Christians was a very great scandal as well as to the Jews Whereupon the same Tertullian in another place thus Apologizeth for them Shall saith he a Christian watch to guard the Temples of those gods whom he hath renonunced Shall he sup there where he is forbidden to eat Shall he defend those spirits by night which he exorciseth by day And a little after How many other great offences may be seen in military duties which cannot be otherwise interpreted but as breaches of our Christian Laws Observ 3 A third thing observable is this That many Christians in the primitive times were inflamed with so great a zeal to an holy life The Fathers gave it as their Counsel but not as Christs precept that they oft-times embraced the Godly Counsels of wise-men with the same fervor of devotion as if they had been the commands of Christ Christians saith Anaxagoras will not contend in judgement with those that rob them And Salvianus was of opinion that it was the command of Christ that we should rather yield up our own right than prosecute the Law for it But this if taken generally may be imbraced as good and Fatherly Counsel tending to Evangelical perfection but was never digested into a Christian precept In like manner the Fourth Council of Carthage decreed That a Bishop though provoked should never sue for things transitory Vid Amb. de Off. lib. 2. c. 21. Greg. M. l. 2. Judict 11. ep 58. So most of the ancient Fathers condemned all Oaths as unlawful without any exceptions whereas St. Paul himself to gain belief in a serious matter did swear A Christian in Tatian refused the Praetorship and Tertullian tells us that a Christian should not affect Magistracy Lactantius * Lib. 5. c. 18. also denies that a just man and such he would have a Christian to be ought to make War but denies also that he should navigate the Seas How many of the ancient Fathers do disswade Christians from Second Marriages yet no wise man will from thence conclude that any of these are in themselves unlawful for though they are all of them excellent Ornaments to our Christian profession and very acceptable to God yet are they not imposed on us by the necessity of any Law Nay farther admit that there were some places of Scripture which did seemingly restrain the political use of the Sword yet since it hath been accounted by all good men a means sufficient for the avoiding of personal inconveniences as mutilation c. to admit of any sense rather than the literal as of the plucking out of the right eye the cutting off of the right hand c. Much rather should those places of Scripture that are urged against the power of the Sword admit of any sense than that it should be thought that Christianity should destroy that which is the chiefest instrument of justice the only curb to vice and one of the main pillars of humane Society For if it be granted that the World cannot subsist without Government nor any Government without Laws and that the Laws themselves signifie but little without Coercion then it is as certain that that Religion cannot be good that holds forth such doctrine whose consequence will destroy all Government and therefore such a doctrine is to be supprest with all care and prudence as the greatest pest and nusance to a Commonwealth and those very men that did first intend by this doctrine to exauctorate Princes and Magistrates would it is to be feared be the very first that would take up Arms to abett and establish their own wild and exorbitant fancies And those Princes who suffer themselves to be deluded by
ordinary course of Justice may be had Now Judgment ceaseth either for a while only or for continuance For a while when the Judge cannot be so long waited for without certain danger and damage Servius upon these words of Virgil Injicere manum parcae The Fates have snatcht him hence tells us That the Poet makes use of a Phrase borrowed from the Law for it is called Injectio manus the snatching away of a thing as it were by force when without attending the warrant of Authority we suddenly seize upon something that is our due which is usually done when the Laws do for a while cease And sometimes there is a total and continued cessation of Judgment and that either by Right or in Fact By Right as in places that are desert and unoccupied on the Seas and in Islands not inhabited and in any other such places wherein are not civil Societies In Fact as when Subjects do not regard the Sentence of the Judge or the Judge publickly refuses to examine the case Now what we said before namely that since publick Judicatories were established all Private Wars are not repugnant to the Law of Nature is clearly evinced by the Law given to the Jews Exod. 22.2 where God gives this charge by Moses If a Thief be found breaking up i. e. by night and be smitten that he dye there shall be no blood shed for him but if the Sun be risen upon him there shall be blood shed for him Certainly this Law so accurately distinguishing of the time when the offence was committed seems not only to induce an impunity but serves to explain even the Law of Nature being not so much grounded on any one particular Divine Precept as indeed upon common equity which guided other Nations also to do the like Solon's Law The old Attick Law was this If any man shall steal in the day time to above the value of fifty Drachmaes let him be tryed by eleven men But if a man shall steal to the smallest value in the night he may lawfully be killed This ancient Law of Solon doubtless occasioned that of the twelve Tables among the Romans Si nox furtum faxit Vide infra Bo. 2. ch 12. si furem aliquis occisit jure caesus esto If any man shall kill a Thief robbing in the night he shall be held innocent So by the Laws of all Nations that as yet we have known He that by Arms shall defend himself against him that attempts to take away his life is accounted guiltless which so plain a consent doth evidently assure us that there is nothing in it repugnant to the Law of Nature III. Neither is it repugnant to the Evangelical Law But whether this private war be justifiable by the more perfect Law of the Gospel is somewhat more doubtful I dare not but grant that Almighty God who hath a much greater power over lives than we have might have imposed upon us such an unlimited patience that even privately in a case of imminent danger we ought rather to be killed than to kill But whether it be his pleasure thus strictly to tye us up is the thing in question There are two places of Scripture that seem to favour the Affirmative which we quoted above when we handled the general question The former was that in the fifth of Mat. v. 39. Mat. 5.39 Resist not him that doth thee an injury And the latter that in the twelfth to the Rom. v. 19. Dearly Beloved Avenge not your selves which the Latin Translation renders Defend not your selves But a third may be added namely that of Christ to Peter Mat. 26.52 Put up thy Sword into the Sheath for they that take the Sword shall perish by the Sword Some there are likewise that urge the example of Christ himself who dyed for his enemies Rom. 5.8 10. Neither are there wanting among the Ancients some who although they do not disallow of publick War yet believed that all private even that which is defensive was forbidden Some places out of St. Ambrose for war we alledged above but many more and much clearer and more generally known may be produced out of St. Augustine In Luc. 10. But yet the same Ambrose in another place saith That haply therefore Christ said unto Peter when he shewed him two Swords It is enough As if till the Gospel came it had been lawful that so there might be as in the Law the doctrine of Equity so in the Gospel the doctrine of Verity De off l. 3. c. 3. And in another place he tells us That a Christian though assaulted by Robbers ought not to strike again Ne dum salutem defendit pietatem contaminet Lest whilst he seeks to preserve his own safety Lib. 1. de lib. Arb. 15. he sin against piety And St. Augustin himself speaking of Thieves and Robbers saith Legem quidem non reprehendo qua tales permittit interfici sed quomodo istos qui intersiciunt defendam non invenio The Law that adjudgeth these men to death Ep. 154. ad Publ. Cap. 43. 55. I disallow not but how to justifie the Executioners I find not And in another place But as to them that give advice that some men are to be put to death lest others by them should be destroyed I cannot subscribe unless he that kills him be either a Soldier or a publick Executioner who doth it not by his own but by publick Authority And of the same opinion was Basil as appears in his second Epistle to Amphilochius whereunto we may add the last Canon of the Council of Orleans C. 13. q. 2. cited by Gratian. But the opposite opinion as it is more Catholick so it seems to be more agreeable to truth namely That Christians are not obliged to such an height of patience We are indeed commanded by the Christian Law to love our Neighbours as our selves but not above our selves so that when we are both of us involved in the same or in equal danger we are no where forbid to preser our own safety before anothers as we have already proved by the Rules St. Paul gives to Christian Beneficence and which Cassiodore in the duties or offices of Friendship likewise confirms There is saith he neither Law nor Reason Cass de Anicitia that can oblige us to redeem another mans soul with the loss of our own or to procure the preservation of his body setting aside our hopes of eternal salvation with the certainty of our own ruine But if any man should object that we are bound to prefer our selves before others in dangers that are equal but not in such as are unequal and therefore I ought rather to give up mine own life than to suffer him that invades me to fall into eternal damnation To this we answer That it is probable that he that is assaulted may stand in as much need of time to repent in and that the Aggressor may also have
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
read 1 Sam. 9.16 and 1 Sam. 10 1. still it is super eos not under my people but over them not under them to serve them but over them to save defend and deliver them Thus David and Solomon are said to be anointed over the people over the Lords anointed and over Israel And David gives thanks 2 Sam. 5.2 1 Kings 4.1 Psal 144.2 that God had subdued his people under him Christ also declares as much where he saith The Kings of the Gentiles exercise dominion over you Luke 22.25 The Power of Kings o're Subjects is their own Horace But none can Kings command but God alone The three Forms of Government are by Seneca thus described Ep. 14. Sometimes the people are most to be feared sometimes if the Government be such those most in favour with the Senate and sometimes those particular persons upon whom the whole power of the people and over the people is devolved For such saith Plutarch have power to govern not only according to the Laws but even the Laws themselves for the publick good Flam. Thus Otanes in Herodotus describes a King That he may do even what he will without being accountable to any So doth Dion Prusaeensis That he may so rule as not to render an account to any Pausanias to the Messenians opposeth Kingly Government to that which is lyable to give an account of his Acts to others Aristotle affirms That there are some Kings who are invested with as much power as elsewhere a whole Nation hath over it self or whatsoever it hath So as soon as the Roman Generals began to assume unto themselves Regal power Uno minor Jove That Kings Inferiour to God alone is no less Christian than Ethnick Philosophy For in this and in nothing more are Kings like unto God that they depend upon none He whom God hath placed in his Throne is accountable to none but unto him who placed him there He is Solutus Legibus above the lash of humane Laws He judgeth all but is judged of none When Herod was accused to M. Anthony for the Murder of Aristobulus Anthony makes this Apology for him It was neither Just nor Equitable to require an account from Kings for what they do as Kings For if that were permitted they could be no longer Kings Kingly Power then must needs be the highest because there lyes no Appeal from him or against him but unto God And as it is subject to no other power so it is bounded by no humane Law as other powers are 'T is granted that Moses indeed seems to prescribe Laws unto Kings and tells them what they should do And good Princes will say with the Emperour Theodosius Tantum mihi licet quantum per Leges licet That only is lawful for me to do which the Laws account so But as Moses teacheth us what a King should do so Samuel tells us what a King may do Moses tells us his duty Samuel his power The Law consists of two distinct parts the one Direct the other Coercive the former points at the rationability of the Law the latter at the danger we run into if we break the Law Now Laws serve to direct Kings because they mind them of their duty But they have no power to force them to that duty much less to Un-King them if they do it not the people are said to confer upon them all their power and authority over themselves as Theophilus expounds it Hence is that excellent saying of M. Antoninus None but God himself is the Judge of Kings Dion Prusaensis speaking of such a King saith He is free and absolute in power both over himself and over the Laws what he will he doth and what he will not he doth not Such anciently in Greece was the Kingdom of the Inachidae at Argis whom Moses terms the Anakims Deut. 2.10 For the Argives in Aeschylus thus bespeak their King Our State and City is in thee The Lacedaemonians in the Story of the Macchabites claim to be of Kin to Abraham they had two Kings but Magis Nomine quam Imperio More in Name than Power as Cora Nepos testifies Thou need'st not fear Laws Tyranny Sacred as Altar is thy Throne For all are Rul'd by thee alone Much different from what Theseus himself though a King speaks in Euripides concerning the Common-wealth of Athens Athens being Free Enslav'd by any one disdains to be The People there are Kings who Annually The Government to this or that decree For Theseus as Plutarch informs us was not their King but their General in War and the Guardian of their Laws in peace in other matters he was but equal with the rest of the Citizens Hence it comes That those Kings that are accountable to the people Lib. 3. Vit. Cleom. Vit. Ages as those after Lycurgus but especially as the Ephori were to the Lacedaemonians are by Polybius Plutarch and others said to be Kings in Name only but not in Power which example of the Lacedaemonians notwithstanding most of the Graecian Cities followed Pausanius to the Corinthians thus testifies of the Argives Corinthiacis Kings in name only not in power That they were so far addicted to parity and liberty that at length they reduced the power of their Kings to almost nothing for to the Sons and Posterity of Cisus they left not any thing but the bare Name and Title of a Kingdom And therefore Aristotle denyes that such Kingdoms do constitute any special Form of Government allowing them but as parts either of Optimacy or Democracy Nay even among such people as were not perpetually governed by Kings Some have for awhile the power but not the name we may find some footsteps of a Temporary Monarchy not at all subject unto the People M. Livius Solinator in his Censorship disfranchised all the Tribes but one in Rome for their Ingratitude thereby shewing his power over the whole body of the people And such was the power of the Dictators in Rome from whom there was no Appeal no not unto the People whence it came to pass that as Livy informs us An Edict from the Dictator was as Authoritative as an Oracle from God Dictators in Rome temporary Kings 1. Arg. answered The Thing that constitutes not always greater than the thing constituted Neither was there any safety at all but in obedience For though Kings were banished yet was the Regal Power comprehended in the Dictatorship The Arguments produced for the contrary opinion are easily answered For in the first place Whereas they say the Thing that constitutes is greater than the Thing constituted and therefore the people that make the King must needs be greater than the King they have made I answer That it is true where the Authority of the thing constituted doth always depend on the will of the Constitutors but not where the Authority once freely given doth ever after fully remain in the person that received it As for example A
also those that succeed to them in a right line hold their Kingdoms by an Usufructuary right that is they hold them as to all the rights and profits but not to alienate them But others hold their Kingdoms by a full Right of Propriety as they that by a just War have conquered them Or he to whom any people to prevent greater mischiefs have yielded themselves Subjects for protection so as they reserve nothing unto themselves Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power because it was not perpetual For the Nature of all Moral things are best known by their operations Wherefore those powers that have the same effects are to be called by the same name But a Dictator during his time exerciseth all Rights that a King doth who holds his Kingdom by a full right Neither can any Act of his be made void by any other as may appear by the Case of Fabius Rutilianus whom when the people would have preserved they could deal with the Dictator by no other means but by Petition Whence we may conclude That he had the same supreme power Now the Duration or Continuation of a thing alters not the nature of it yet if question be made concerning the dignity which is usually called Majesty doubtless he that hath it perpetuated unto him hath the greater Majesty than he that hath it for a time limited only because the manner of holding it adds much to the Dignity of him that holds it Now what hath been said of Kings Protectors have absolute power during their time may also be said of such as are either during the Minority of Kings or during their Captivity or Lunacy appointed Protectors For neither are those subject unto the people nor is their power revocable before the time come appointed by the Laws But it is otherwise with those who have a Right which is at any time revocable Some Kingdoms held during the plâ—asure of the people Procop. Vand. lib. 1. As they who reign only during the pleasure of others such was the Kingdom of the Vandals in Africa and of the Goths in Spain who were as often deposed as they displeased the people And every act of theirs might be made void because they who gave them that power gave it under condition of Revocation And therefore not having the same effect they could not be said to have the same Right XII Some Soveraign powers are held fully with a right of alienation Against what I have before said That some Kingdoms are held in full right of propriety that is as Patrimonial There are very learned men that make this objection That Men being free are not to be traffickt away from one to another as things that are bought and sold But as the power of a Master is different from that of a King so is personal liberty from that which is Civil And the freedom of singular persons from the freedom of States The Stoicks themselves confess That there is a kind of servivitude in subjection Hottom Cont. illust qâ—ae i. 1. Diog. Laâ—â—t 1 Sam. 22.28 2 Sam. 10.2 1 King 9.22 Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants As personal liberty excludes the power of a Master so also doth civil liberty that of Empire and all manner of Soveraignty properly so called Livy thus opposeth them Before men had tasted the sweetness of liberty they desired a King And again What a shame is it for the people of Rome who when they served under Kings were never straitned by War nor besieged by an enemy Lib. 45. being now a free people to be besieg'd by the Hetruscans And in another place The people of Rome live not now under Kingly Government but in liberty And elsewhere he opposeth those Nations that were free unto those that lived under Kings So also Seneca the Father Sâ—as 1. We ought not to give our opinions in a Free state in the same manner as we did under Kings Yea and Cicero Either we did not well to expel Kings or we ought to restore the people to liberty De leg 3. Ann. l. 1. not in words only but in deeds After these comes Tacitus The City of Rome saith he was at first governed by Kings but it was L. Brutus that instituted Liberty and Consular Authority And to be short every where among the Roman Laws when they treat of War and recuperatory Judgements all Foreigners are distinguisht into Kings and Free people The question then here put respects not personal but civil subjection In which sense some Nations are said not to have power over themselves Hence is that in Livy Which Cities Fields and Men were sometimes under the power of the Aetolians And that also Are the people of Collatia a free people i. e. have they any power over themselves Nevertheless to speak properly when any people are said to be alienated When a Kingdom is alienated it is not the people but the right of governing them that is alienated it is not the men but the perpetual right of governing themselves as they are a people that is alienated As vain and frivolous is that Inference which concludes That because Kings conquer Nations by the blood and sweat of their Citizens therefore what is so conquered ought of right to belong rather to them than to him For possible it is That that King may pay his Army out of his own private estate as M. Anthony did in his Bohemian Wars who when the Roman Treasury was exhausted being unwilling to impose any more Taxes upon the people brought into Trajans Court and made sale of all his Vessels of Gold Silver Crystal and Myrrh together with his own and his wives Robes of Silk and Gold and all other their Ornaments and Jewels for the maintenance of the War Or he may pay his Army out of the rents and profits of that patrimony which attends the Principality And therefore Ferdinando claimed to himself all that part of the Kingdom of Granada which he had gained with the rents and profits he had raised out of Castile during the time of his Marriage as Mariana testifies Lib. 28. Hist Hispan For although a King have but the mean profits arising out of that Patrimony in the same manner as he hath the right of governing the people who have elected him yet are those profits properly his own As it is also in the Civil Law where though the Inheritance be judged to be restored yet the profits are not because they are perceived not from the inheritance but from the thing it self Possible therefore it is that a King may be so possest of the Government over some people in his own proper right that it is in his own power to alienate it As it was granted to Baldwin by those that accompanied him in his expedition to the Holy Land That the half of
sold or bequeathed by Testaments than Kingdoms are XV. This appears by the assigning Tutors and Protectors in Kingdoms There is also another mâ—rk whereby this distinction may be seen namely in the Tutâ—lage or Protection of Kiâ—â—â—oms when Kings and Princes are hindered or disabled either by some disease or thâ—â—â—gh old age or the like from performing their duty For where the Kingdom is not Pâ—trimonial the Protectorship is theirs to whom the publick Laws or if they are silent the people shall consign it But if the Kingdom be Patrimonial then to them whom the Father or the nearest of kin shall chuse Thus did Ptolomy King of Aegypt appoint by his Testament the people of Rome as Guardians to his Son who to perform that trust sent M. Aemilius Lepidus who was their Chief Priest Val. Mar. lib. 6. Tit. 6. c. 1. and had been twice Consul unto Alexandria to take care of the Government and of the Childs Education By whose care not only the Kingdom was preserved but the Child in his youth so well disciplin'd that it was hard to judge whether he received more glory by his Fathers great fortunes or by the Majesty of his Guardian So we read that in the Kingdom of Epirus which first depended on the suffrages of the people Tutors were publickly assigned unto their young King Ariba The like was done by the Nobility of Macedon to the Posthumous son of the Great Alexander But in Asia the Lesser which was gained by the Sword King Eumenes dying appointed his Brother Protector to his young son Attalus So did Hiero King of Sicily by his Testament constitute unto his son Hieronymus what Tutors he pleased But whether the King be also in his own private right Lord of the soil as the Kings of Aegypt were after the times of Joseph or as the Kings of the Inâ—ians were as Diodorus and Strabo testifie or whether they are not it makes no diffeâ—ence For these are extrinsick to the Empire and therefore can neither constitute another kind of Government nor alter any thing as to the manner of holding it XVI Soveraignty not lost by any promise made of any things which belong not to either the Law of God or Nature The Third observation shall be this That an Empire ceaseth not to be supreme though he that is to govern do by promise oblige himself either to his Subjects or to God unto such things as do properly appertain unto his manner of Government I mean not hâ—re such things as appertain to the Laws of God Nature or Nations For unto these every Prince stands obliged though he promise not But I mean though he do promise to confine his own power within certain Laws and Rules whereunto nothing can bind him but his oath or promise The Emperour Trajan did solemnly imprecate vengeance on his own head and right hand in case he knowingly failed in what he had promised And the Emperour Adrian sware that ye would never punish a Senator without a decree of the Senate Anastasius bound himself by oath to observe the decrees of the Synod of Chalcedon And all the Greek Emperours did likewise oblige themselves to observe the Canons and Constitutions of the Church But by none of these Oaths or Promises doth the Power of an Emperour cease to be supreme This may clearly be illustrated by comparing the power of a King with that of a Master in his own Family For although a Master do promise to observe such orders as he conceives to be most conducing to the welfare of it yet doth he not thereby cease to be supreme in his own Family Nor doth a husband cease to have power over his wife though he have obliged himself to the contrary by some promises that he hath made to her yet I must acknowledge that where such Oaths and Promises are made the soveraignty is thereby somewhat straitened whether the obligation do only restrain the exercise of the Act as that of Adrian's above-mentioned or the very power it self If it restrain the exercise only then the act that is done contrary to promise is sâ—id to be unjust because as we shall shew anon every promise gives a right to him to whom it was made But if it restrain the faculty it self then the Act will be void for wâ—nt of a Right or Faculty to do it And yet will it not necessarily follow that he thâ—â—â—â—us promiseth hath any power superiour to himself for his Act is not made void by any power above him but by very right Among the Persians no man can say but that their Kings were supreme and absolute in power and not liable to give an account as Plutarch testifies Nay their Kings were adored as Gods own Image and as Justin tells us were never changed but by Death He was a King indeed that said to the Nobles of Persia Ne viderer meo tantummodo usus consilio vos contraxi caeterum mementote parendum vobis magis quam suadendum Val. Max. lib. 9. c. 5. Lest I should be thought to govern by mine own counsels only I have called you together but otherwise remember that it is your duty rather to obey than to perswade And yet did this very King at his Coronation swear not to alter the Laws of that Kingdom made after such a form as both Xenophon and Diodorus testifie and as the Histories of Daniel and Plutarch in the life of Themistocles inform us Ch. 6 8 13 15. Pers l. 1. So Josephus tells us That Vashti could not be reconciled to the King because the Royal Decree was gone out which could not be broken And long after them Procopius confirms as much where we may read a notable example to this purpose The very same doth Diodorus Siculus relate of the Kings of Aethiopia and Aegypt who without doubt as all other Eastern Kings had in their respective Kingdoms absolute Power and yet were they all at their admission obliged to many things by Oaths or Promises Which if they performed not though whilest they lived they could not be questioned yet being dead their memories might be accused and being condemned their carcâ—sses might be denyed solemn Funeral This Apion records Civiliam 3. Leges Tyrannorum Corpora insepulta extra fines projici jubent The Laws saith he command the bodies of Tyrants to be cast out of their Territories unburied In obedience to the like Law the Emperour Andronicus deprived his own Father Michael of Christian Burial Gregoras l. 6. because he followed the Faith of the Latin Churches And such another Law there seemed to be amongst the Hebrews who would not permit the dead bodies of their wicked Kings to be interr'd among their good Kings The like we may find in Josephus concerning the two Jorams 2 Chr. 24.25 Ch. 28. 27. Jos Art l. 8. c. 3.5 the one King of Juda the other King of Israel By which excellent temperament of reverence and justice they both preserved the Majesty of
their Kings inviolable whilest they lived and also deterred them from breaking their oaths and promises by the fear of a dishonourable Interrment being dead The Kings of Epirus were wont to make oath That they would rule according to the Laws And their Subjects likewise bound themselves by Oaths to defend both him and the Kingdom according to the same Laws as Plutarch informs us in the life of Pyrrhus Nay further suppose a King should accept of his Kingdom upon these terms That in case he should falsifie his promise he should lose his Kingdom yet were his power supreme only the manner of holding it would be so much impaired by such a condition as would make that Government not much better than that which is Temporary It was said by Agatharchides concerning a King of the Sabaeans That he was not liable to give any account of his Actions as King and yet if ever he were seen out of his own Palace he might be stoned to death justly Which Strabo also notes out of Artemidorus So that Land which is held upon condition of some Trust to be performed is held as sully during the performance of that Trust as that which is held absolutely But yet it is possible that it may be lost and such a conditional Law may be added not only in conferring of a Kingdom but in any other Contract For some Leagues with our Neighbour Princes we see entred into under such penalties As in case a King being at his admission sworn shall break his Articles of Agreement his Subjects shall not help him no nor obey him So Crommerus testifies in his Treatise concerning the affairs of Poland Ch. 19 21. XVII It may sometimes be divided The Fourth thing is this That though the Soveraign Power be but one and of it self indivisible consisting of those parts above mentioned adding thereunto Supremacy that is the being accountable to none Yet it may so fall out that sometime it may be divided either by Parts which they call Potential or by Parts which they term Subjective As though the Roman Empire were but one entire thing yet it so sell out sometimes that one held the Eastern and another the Western part of it or that three sometimes divided the whole between them So also it may fall out that the People electing a King may reserve some Acts to themselves and transfer others to their King to be held in full Right Which notwithstanding is not done as I shewed before whensoever the King shall oblige himself by some promise But then only when either the Partition is expressly made as in the time of the Emperour Probus when it was agreed That the Senate should confirm the Princes Laws Vid. Gail lib. 2. Obs 157. and that they might take cognizance of Appeals appoint Proconsuls and give Legates unto the Consuls Or when the people being as yet free shall require it from him whom they chuse to be their King by way of a permanent Law or Precept Or if some such thing be added whereby it may plainly be understood that their King may be compelled or punished if he refuse To command argues a superiour but not to compel For a Precept or Command is commonly from a Superiour at least in that which is commanded but to compel doth not always argue a superiour For naturally every man hath power to compel his Debtor to do him justice but it is repugnant to the nature of an Inferiour And therefore from Compulsion there must naturally follow at least a parity and consequently a division of the Soveraign Power Many Allegations are usually brought against this bipartite state But as we have already said In civilibus nihil est quod omni ex parte incommodis caret Jus non quod optimum est huic aut illi videtur sed ex voluntate ejus unde jus oritur metiendum est In Civil matters it is not possible to provide against all Inconvenience no one Law can exactly fit every mans case no more than any one Shooe can fit every mans Foot neither is any thing accounted Right by seeming so to this or that person but by the will of him who was the Law-maker An excellent example of this is brought by Plato in the third Book of his Laws For when the Heraclidae had built Argus Lacedaemon and Messena they obliged their Kings to govern them according to Laws prescribed them which whilest they did the people also were obliged to continue their Kingdoms unto them and to their posterity and not to suffer any man to take them from them And for the better assurance of this Agreement not only the Kings bound themselves by Oath to their Subjects and the Subjects to their King but the Kings bound themselves each to other and the people of their respective Kings one to another and the Kings gave their faith to their neighbouring people and those people to their neighbouring Kings each King and people promising their mutual aid and assistance in defence of the Government established amongst them Many examples of this kind may be collected out of the Histories of our Northern Nations as in Johannes Magnus his History of Sweden and in Crantzius of the Swedes and Pontanus of the Danes XVIII Which is ill collected from this That some Princes will have their Acts confirmed by the Senate True it is that some Kings will not permit that some Acts of theirs shall be of force until they are confirmed by the Senate or some other Commissioners Yet he that shall hence inferr That there is a Partition of power will be mistaken For whatsoever Acts are thus rescinded ought to be understood as though they were made void by the King himself who by this means provides that nothing fraudulently gained from him shall pass to his disadvantage This was the scope of that Rescript sent by Antiochus the Third to his Magistrates That in case he commanded them to do any thing contrary to Law they should not obey him And of that of Constantine to his That Widows and Orphans should not be compelled to come for Judgement to the Court of the Emperour although the Emperours own Letters should be produced for it This is very like unto those Testaments unto which this clause is added That no Testament hereafter to be made shall be of force For such a Clause would have it believed that the latter Testament proceeded not from the will of the Testator But as that clause in the Will so the first Act of a Prince may by any after-Act of his or by any special Indication of his later Will be easily rescinded XIX Some other examples hither ill drawn Neither am I at all swayed by the authority of Polybius who would fain have the Romans to be a mixt Common-wealth which if we regard not so much the Acts themselves as the Power whereby they were done was doubtless at that time meerly popular For as well the Authority of the Senate which
and not to declare that the other is not free By superiour we understand not in power for he had said before that a free Nation should not be subject to the power of another but in Authority and Dignity which the words following by a very fit Simile do clearly illustrate Some Nations are equal in liberty though not in dignity with others For as we know our Clients to be free though neither in Dignity nor in Authority nor in all Right our equals so they that are obliged faithfully to uphold our Majesty are notwithstanding to be understood our equals in liberty Clients are free though under the defence of their Patrons or Advocates so is an Inferiour people free though in League with a people superiour unto them in dignity For they may be under their protection though not under their jurisdiction as Sylla speaks in Appian An example we have in the Dilimnites Ap. Mithridat who as Agathias tells us were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Free to live by their own Lawâ— though they served the Persian in his Wars This was the design of the Empress Irene so to divide the Empire among the Sons of her Husband that the younger Sons should be Inferiour to the Eldest in dignity but otherwise they should be Independent and Absolute in Power De Off. l. 2. Cicero speaking of that Golden Age of the Roman Empire saith Patrocinium Sociorum penes eos esse non Imperium The Romans gave protection to their Friends and Allies but claimed no dominion over them Liv. l. 26. With whom agrees that of Scipio Africanus The People of Rome had rather oblige their Neighbours unto them by Courtesies than by Fear and to win foreign Nations unto them by Faith and Friendship than to subject them to an ungrateful bondage And what Strabo reports of the Lacedaemonians after the arrival of the Romans in Greece saying They enjoyed their own Freedom contributing nothing unto the Romans but the mutual offices of love and friendship As private Protection takes not away personal Liberty Protection so neither doth publick take away Civil which without Soveraign Power cannot consist And therefore Livy wisely opposeth to be under protection unto to be under Jurisdiction Augustus Caesar as Josephus relates threatned Syllaeus King of Arabia that if he abstained not from injuring his neighbours he would quickly make him of a Friend a Subject which was the condition of the Kings of Armenia who being under the Roman â—urisdiction retained only the Title of Kings but not the Power As did also the Kings of Cyprus and some others though in name Kings yet were they Subjects to the Persian Monarchy as Diodorus calls them But here it may be objected what Proculus adds Lib. 16. Four kinds of differences usually arise between Confederates But some who belong to our Confederate Cities are with us found guilty whom being condemned we may punish But that we may understand these words we must know that there are four kinds of differences that usually arise among Confederates As in the first place If the Subjects of the King or State under protection are said to have done any thing against the League Secondly If the King or States themselves are accused Thirdly If the Associates that are under the protection of the same King do quarrel one with another Lastly If Subjects complain of Injuries done them by those under whose Jurisdiction they are If the Controversies be of the first kind the King or State are obliged either to punish or to deliver up the Offender to the person injured And this ought to be done not only between unequal Confederates but between equals even between such as are not linked together by any League as shall be shewed anon Nay farther He is obliged to endeavour that satisfaction be made to the injured person which in Rome was called the Recuperators office For the Law saith Aelius Gallus in Festus doth determine between King and People Nations and Foreign Cities how things by the Recuperator may be restored and how they may be received and how private mens cases may be prosecuted in each Nation For one of the Confederates can have no right directly to apprehend or to punish the Subjects of the other Confederate and therefore Decius Magius a Campane being apprehended and bound by Hannibal and so conveyed to Cyrene and from thence sent to Alexandria pleaded that he was bound by Hannibal contrary to the Articles of the League whereupon he was presently set at liberty As to the second kind of Controversies One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League and in case of refusal to punish him but neither is this peculiar to a League that is unequal but may be done in one that is equal For it is enough to justifie any man for seeking a revenge against him that hath wronged him that he is not subject unto him as shall be proved anon wherefore this is also in force even among such people as are not confederated The third sort of Controversies are amongst such as are equally confederated and these are usually referred to a Dyet or Convention of the States associated yet not therein concerned For so the Greeks the Latins and the Germans were wont to do or otherwise referred to Arbiters or even to the Prince of the League as to a common Arbiter So in an unequal League it is usually agreed that the things in controversie shall be discust in that Nation which is superior in the League wherefore neither doth this argue a superiority in power for even Kings themselves refuse not to have their own causes sometimes tryed before such Judges as even themselves have constituted But of the last kind of Controversies Associates have no right at all to judge and therefore when Herod did vehemently accuse his two Sons before Augustus Caesar for conspiring against his life they took it as a favour he had done them Jos Ant. lib. 16. c. 7 8. Poteras de nobis Supplicium sumere tuo jure tum qua pater turn qua Rex Thou mightest have inflicted what punishment upon us thou wouldst by thine own Right both as a Father and as a King And when Hannibal was accused at Rome by some Carthaginians for stirring up Sedition amongst the Citizens Val. Max. lib. 4. c. 1. Pol. lib. 1. c. 9. Scipio told the Senate That it did not become them to intermeddle with that which properly belonged to the City of Carthage And herein it is that Aristotle puts a difference between a Society and a City for it concerns confederate Societies to take care that no injuries be committed against them but not that the Citizens of any one of the Confederates do not injure one another But here again it may be objected That in unequal Leagues he that is superior in the League is sometimes said to command and he that is inferior to obey
but neither should this move us for this is when the things in controversie concern either the common good of both parties confederate or the private profit of him that is superior in that League As to the things of common concernment Dan. 11.22 the Assembly not sitting He that was the Prince of the League though it were an equal League did usually command his Associates as Agamemnon in the Trojan Expedition did the Graecian Princes and as afterwards the Lacedemonians did the Graecians and after them the Athenians Thucydides in that Oration made by the Corinthians saith It very well becomes the Prince of the League in private matters to deal equally but in publick to be more than ordinarily sollicitous Isocrates commending that excellent conduct of the ancient Athenians in the managing of their social Wars saith That they took care for all without intrenching upon the liberty of any And in another place he allows them to Command but not to Domineer It is well worth our observation that what the Latins express by the word Imperare to command the Greeks more modestly express by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to dispose or set in order The Athenians to whom the conduct of the War against the Persians was committed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Thucydides did order which City should contribute Money and which Ships And they that were sent from Rome into Greece Plinii ep lib. 8. c. 24. are said to be sent to give orders for the well governing of the free Cities Now if he that is the principal party in an equal League do thus it is not to be wondred at if he that in an unequal League is superior in honour and dignity do the same For the word Imperium that is Empire taken in this sence as it signifies only an Ordinance and Appointment equally conducing to the common good doth not at all imply the loss of the others liberty Livy l. 37. The Rhodians in their Oration to the Roman Senate thus bespake them The Gracians were wont to defend their Empire with their own forces But their Empire where now it is they wish that it may remain for ever They are now well contented to defend their liberties with your Arms Lib. 15. being no longer able to do it with their own So Diodorus tells us that after the taking of the Cadmean Fort by the Thebans many of the Graecian Cities met and agreed among themselves That every City in Greece should enjoy its own freedom yet the conduct of the War should be given to the Athenians And yet Dion Prusaeensis speaking of those very Athenians in the times of Philip of Macedon saith That having at that time lost their command in the War they retained only their own liberty So those people which Caesar reckoned to be under the command of the Suevians he by and by calls his Confederates But in such things as appertain to his own particular profit the request of him that is Superior in the League are usually taken for Commands not that they are so indeed but that they are in respect of their usual effects equivalent to Commands for he needs no force who knows himself to be feared Armatae sunt Regum praeces The Requests of Kings have the same power as Commands And a denyal how just soever shall be by them as ill digested as an injury It was never heard of saith Livy before Caius Posthumius that any Consul was either chargeable or burdensome to our Associates in any thing and therefore were our Magistrates supplyed abundantly with Mules Pavilions and all other Instruments of War that so they might not require them from our Associates In the mean time it sometimes so falls out The weaker Associates sometimes reduced unto subjection That if he that is superior in the League be much more potent than the rest of the Confederates he may by degrees at length usurp the Soveraignty over them especially if the League be perpetual and that he hath thereby a right to place Garrisons in any of their strong Towns as the Athenians sometimes did when they suffered themselves to be appealed unto from their Associates Hal. l. 6. Livy l. 34. which by the Lacedemonians was never done wherefore Isocrates equals the Government that the Athenians exercised in those days over their Associates with that of Kings and absolute Princes So the Latines in Livy complain against the Romans that under the specious Title of being Associates in War they were reduced into a mere Subjection which Society in Arms Plutarch in the Life of Aratus calls a Gentle Slavery Hist 4. So Festus Rufus in Tacitus concerning the Rhodians At first they lived in great freedom till afterwards the Romans gently urging them they were brought by little and little into an habit of Subjection So the Aetolians likewise complained That they had nothing left them but the bare shadow and empty name of Liberty So likewise afterwards the Achaians complain That they had indeed a League in appearance but were at length brought into a Precarious Servitude The like complaint Civilis Batavus in Tacitus makes against the same Romans That they used them not as formerly like Companions but usurped and insulted over them as mere Slaves And in another place they falsely called that peace which was indeed but a miserable Slavery Thus Eumenes also in Livy concerning the Confederates of the Rhodians that they were their Associates in Name but their Vassals indeed Thus also Magnetes in Polybius saith That Demetrias was in shew free but in effect all things were done there at the will of the Romans The Thessalians likewise were in appearance free but indeed under the dominion of the Macedonians as the same Polybius testifies Now when these things are done and so done as by patient endurance they may by mistake be said to be rightly done whereof we shall elsewhere discourse more fully then either of Companions they are made Subjects or certainly there must be a partition of the Supremacy which as I have said before may sometimes happen XXII Of such as pay Tribute They that pay any thing either in satisfaction of wrongs past or to be protected against injuries to come are by Thucydides called tributary Associates such were the Kings of the Hebrews and of their Neighbour Nations after the time of M. Anthony free though under a certain tribute Nor do I see any cause to doubt but that they that Reigned so had Supreme Power within their respective Dominions and had a full right to punish delinquents according to their own Laws Thus M. Anthony defends King Herod being accused for murthering Aristobulus That it was neither just nor right to call a King to an account for what he doth as a King for if so he could not be a King For common equity requires that they that gave him that honour should permit him the free use of that Soveraign Power which was appendent unto it So
is the Minister of God for our good Now if there be a necessity of our subjection then there is the same necessity for our not resisting because he that resists is not subject Neither did the Apostle mean such a necessity of subjection as ariseth from an apprehension of some worse inconvenience that might follow upon our resistance But such as proceeds from the sense of some benefit that we receive by it whereby we stand obliged in duty not unto man only but unto God so that he that resists the power of the Supream Magistrate incurs a double punishment saith Plato First From God for breaking that good order which he hath constituted amongst men and Secondly From the Common-wealth whose righteous Laws made for the preservation of the publick peace are by resistance weakned and the Common-wealth thereby endangered For canst thou believe saith Plato that any City or Kingdom can long stand when the publick Decrees of the Senate shall be wilfully broken and trampled upon by the over-swelling power of some private men who in strugling against the execution of the Laws do as much as in them lyes dissolve the Common-wealth and consequently bring all into confusion The Apostle therefore fortifies this necessity of publick subjection to Princes with two main Reasons First Because God had constituted and approved of this Order of Commanding and Obeying and that not only under the Jewish but under the Christian Law wherefore the Powers that are set over us are to be observed not servilely superstitiously or out of fear but with free rational and generous Spirits tanquam à Diis datae as being given by the Gods saith Plato or as St. Paul tanquam à Deo ordinatae as if ordained by God himself Which order as it is originally Gods so by giving it a Civil Sanction it becomes ours also for thereby we add as much authority unto it as we can give The other reason is drawn ab utili from profit Because this order is constituted for our good and therefore in Conscience is to be obeyed and not resisted But here some men may say That to bear Injuries is not at all profitable unto us whereunto some men haply more truly than appositely to the meaning of the Apostle give this answer That patiently to bear Injuries conduceth much to our benefit because it entitles us to a reward far transcending our sufferings as St. Paul testifies But though this also be true yet is it not as I conceive the proper and genuine sense of the Apostles words which doubtless have respect to that universal Good whereunto this order was at first instituted as to its proper end which was the publick Peace wherein every particular man is as much concerned if not much more than in his private For what protection can good Laws give if Subjects may refuse to yield their obedience to them whereas by the constant observance of good Laws all estates both publick and private do grow up and flourish together Plato And certainly these are the good Fruits that we receive from the Supream Powers for which in Conscience we owe them obedience For no man did ever yet wish ill to himself But he that resists the power of the Magistrate and wilfully violates the Laws established doth in effect as far as in him is dissolve his Countreys peace Plato and will in the end bury himself also in the ruines of it Besides the Glory of Kings consists in the prosperity of their Subjects When Sylla had by his Cruelty almost depopulated Plut. Florus Aug. de Civ Dei lib. 3. c. 28. not Rome only but all Italy one seasonably admonisht him Sinendos esse aliquos vivere ut essent quibus imperet That some should be permitted to live over whom he might rule as a King It was a common Proverb among the Hebrews Nisi potestas publica esset alter alterum vivum deglutiret Were it not for the Soveraign Powers every Kingdom would be like a great Pond wherein the greater Fish would alwayes devour the lesser Agreeable whereunto is that of Chrysostome Vnless there were a power over us to restrain our Inordinate Lusts men would be more fierce and cruel than Lyons and Tygers not only biting but eating and devouring one another Take away Tribunals of Justice and you take away all Right Property and Dominion No man can say this is mine House this my Land these my Goods or my Servants Chrys de Statuis 6. Ad Eph. 5. but Omnia erunt fortiorum the longest Sword would take all The mighty man could be no longer secure of his Estate than until a mightier than he came to dispossess him the weaker must alwayes give place to the stronger and where the strength was equal the loss would be so too And this would at length introduce a general Ataxy which would be far more perilous than a perfect Slavery Wherefore seeing that God hath established and humane reason upon tryal approved of Soveraign Empire as the best preservative of humane Societies that every man should yield obedience thereunto is most rational For without Subjection there can be no Protection But here it will be objected That the Commands of Princes do not alwayes tend to the publick good Object and therefore when they decline from that end for which they were ordained they ought not to be obeyed To which I answer That though the Supream Magistrate doth sometimes either through Fear Anger Lust Covetousness or such like inordinate passions baulk the ordinary path of Justice and Equity yet are these happening but seldome to be passed over as personal blemishes which as Tacitus rightly observes are abundantly recompensed by the more frequent example of better Princes Besides the Lives of Princes are to be considered with some grains of allowance in respect of those many provocations and opportunities they have to offend which private men have not All men have their Failings we our selves have ours and in case we will admit of none in Kings we must not rank them amongst men Kings to be censured with some favour but Gods The Moon hath her spots Venus her Mole and if we can find nothing under the Sun without blemish Why should we expect perfection in Kings He is very uncharitable that judges of Rulers by some few of their Evil deeds passing over many of their Good ones Seeing therefore that there is in all mens lives as in our best Coin an Intermixture of Good and Evil it is sufficient to denominate a Prince Good if his Virtues excel his Errors Besides to charge the Vices of Princes upon the Government as they usually do who affect Innovation is but a cheat For what is this but to condemn the Law for the Corruption of some Lawyers Or Agriculture because some Husbandmen do curse God for a Storm Si mentiar ego mentior non negotium If I do lye saith the Merchant in St. Augustine it is I that am to be blamed not
those who first entred into Civil Society from whom the right of Government is devolved upon the persons Governing Who had they been demanded ☜ Whether they would have imposed such a yoke upon all Mankind as death it self rather than in any case by force to repel the Insolencies of their Superiours I much question whether they would have granted it unless it had heen in such a case where such resistance could not be made without great commotions in the Common-wealth or the certain destruction of many Innocents for what Charity commends in such a case to be done may I doubt not pass for an humane Law But some may say that this rigid obligation to dye rather than at any time to resist injuries done by our Superiors is not imposed on us by any humane but by the Divine Law But we must observe That men did not at first unite themselves in Civil Society by any special Command from God but voluntarily out of a sence they had of their own impotency to repel force and violence whilst they lived solitarily and in Families apart whence the Civil Power takes its rise For which cause it is that St. Peter calls it an humane ordinance although it be elsewhere called a Divine Ordinance because this wholesom constitution of men was approved of by God himself But God in approving an humane Law may be thought to approve of it as an humane Law Barkley Lib. 3. contra Monarchomach c. 8. and after an humane manner Barkley who was the stoutest Champion in defending Kingly Power doth notwithstanding thus far allow That the People or the nobler part of them have a right to defend themselves against cruel Tyranny and yet he confesseth that the whole body of the people is subject unto the King Now this I shall easily admit That the more we desire to secure any thing by Law the more express and peremptory should that Law be and the fewer exceptions there should be from it for they that have a mind to violate that Law will presently seek shelter and think themselves priviledged by those exceptions though their cases be far different Yet dare I not condemn indifferently either every private man or every though lesser part of the people who as their last refuge in cases of extreme necessity have anciently made use of their Arms to defend themselves yet with respect had to the common good For David David's example who saving in some particular Facts was so celebrated for his integrity did yet entertain first four hundred and afterwards more armed men to what end unless for the safeguard of his own person against any violence that should be offered him But this also we must note That David did not this until he had been assured both by Jonathan and by many other infallible Arguments that Saul sought his life and that even then he neither invaded any City nor made an Offensive War against any but lurked only for his own security sometimes in Mountains sometimes in Caves and such like devious places and sometimes in Foreign Nations with this resolution to decline all occasions of annoying his own Countrymen A Fact parallel to this of Davids we may read of in the Maccabees The Maccabees For whereas some seek to defend the Wars of the Maccabees upon this ground That Antiochus was not a King but an Usurper this I account but frivolous For in the whole Story of the Maccabees we shall never find Antiochus mentioned by any of their own party by any other Title than by that of King and deservedly For the Hebrews had long before submitted to the Macedonian Empire in whose Right Antiochus succeeded And whereas the Hebrew Laws forbad a Stranger to be set over them this was to be understood by a voluntary Election and not by an involuntary Compulsion through the necessity of the times And whereas others say That the Maccabees did act by the peoples right to whom belonged the Right of Governing themselves by their own Laws neither is this probable For the Jews being first conquered by Nebuchadonosor were by the right of War subject unto him and afterwards became by the same Law subject to the Medes and Persians as Successors to the Chaldeans whose whole Empire did at length devolve upon the Macedonians And hence it is that the Jews in Tacitus are termed The most servile of all the Eastern Nations neither did they require any Covenants or Conditions from Alexander or his Successors but yielded themselves freely without any limitations or exceptions The Jews a conquered Nation as before they had done unto Darius And though they were permitted sometimes to use their own rites and publickly to exercise their own Laws yet was not this due unto them by any Law that was added unto the Empire but only by a precarious Right that was indulged unto them by the favour of their Kings There was nothing then that could justifie the Maccabees in their taking of Arms but that invincible Law of extreme necessity which might do it so long as they contained themselves within the bounds of self-preservation and in imitation of David betook themselves to secret places in order to their own security never offering to make use of their Arms unless violently assaulted The Kings Person to be spared in the defence of our selves 1 Sam. 26.9 In the mean time Great care is to be taken that even when we are thus enforced to defend our selves in cases of certain and extreme danger we spare the Person of the King for they that conceive the carriage of David towards Saul to proceed not so much from the necessity of duty as out of some deeper consideration are mistaken For David himself declares that no man can be innocent that stretcheth forth his hand against the Lords anointed Because he very well knew that it was written in the Law Exod. 22.28 Thou shalt not revile the Gods that is the Supreme Judges Thou shalt not curse the Rulers of thy people In which Law special mention being made of the Supreme Power it evidently shews that some special duty towards them is required of us Wherefore Optatus Milevitanus speaking of this fact of David Lib. 2. saith That Gods special command coming fresh into his memory did so restrain him that he could not hurt Saul though his mortal enemy Wherefore he brings in David thus reasoning with himself Volebam hostem vincere sed prius est divina praecepta observare Willingly I would overcome mine enemy but I dare not transgress the Commands of God And Josephus speaking of David after he had cut off Sauls Garment saith That his Heart smote him So that he confest Injustum facinus erat Regem suum occidere It was a wicked act to kill his Soveraign And presently after Horrendum Regem quamvis malum occidere Poenam enim id facienti imminere constat ab eo qui Regem dedit It is an horrid act to kill a
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
Common-wealth may not only be by force resisted but if it be necessary may be punished with death As it befel Pausanias King of the Lacedaemonians of whom Plutarch thus The Spartans taking to heart the death of Lysander sentenced their King to death Plut. vit Lysand because leaving Lysander out of Cowardise whom he was sent to relieve he had fled for safety to Tegra The like he records in the life of Sylla The Spartans saith he deposed some of their Kings as being unfit for Government because they were of low and abject Spirits Yea and of Agis he reports That being their King yet was condemned though unjustly Now seeing that there were in Italy diverse such Kingdoms it is no marvel that Virgil having first recorded those many wicked Acts done by Mezentius adds Th' Hetrur'ans therefore all in a just rage To bring their Kings to Judgement do engage Of whom an old Hetrurian South-sayer spake thus Whom their just Woe Arms as against a Foe IX Or against King that hath renounced his Kingdom Secondly If a King or any other shall renounce his Empire or manifestly forsake it against such a Prince or King after that time any thing is lawful that may be done to a private man But this then we must observe That he that is careless and negligent only in his Government cannot thereby only be judged to have forsaken it X. Or against a King that would alienate his Kingdom Thirdly It was the opinion of Barkley That if a King would alienate his Kingdom or subject it to another he lost it But here I make a stand For if the Kingdom be Elective or descend by succession such an Act of Alienation is in it self null And whatsoever is in it self null can have no effects of a just Right Wherefore as also of that Kingdom that is barely usufructuary whereunto I have likened such a King the opinion of the Civilians is to me more probable That in yielding up his Kingdom to a stranger he confers nothing And whereas it is said that the fruits and profits revert to the Lord of the propriety It is to be understood after such a time as is prefixed by the Law Yet notwithstanding if a King shall really endeavour to deliver up or subject his Kingdom to another I doubt not but that in this case he may be resisted For Empire is one thing and the manner of holding that Empire another The alteration whereof the people may hinder for that is not comprehended under the notion of Empire Whereunto may that of Seneca be not unfitly applyed Although our Father be in all things to be obeyed yet not in those things wherein he ceaseth to be a Father XI Or a King that Invades the whole body of the people in an hostile way Fourthly as the same Barkley observes If a King shall endeavour with a mind truly hostile the destruction of the whole body of the Nation over which he is set to govern he loseth his Kingdom and may be resisted Which I grant For the end of all Government being for mutual conservation he that wilfully resolves to destroy can have no right to Govern Wherefore he that openly either in word or deed professeth himself an enemy to the whole Nation is in that very act presumed to abjure and renounce the Government of it When Scylla had depopulated not Rome only but almost all Italy one seriously advised him that it was fit to spare some that he might have some to govern Vt essent quibus Imperassent But this case can hardly be found in any King that is of sound mind and that governs one only Nation But in case he govern more than one it may so happen that in favour to one he may endeavour to destroy the other that so he may plant it with new Colonies Plut. vit lib. Grac. Gracchus his Arguments are very Ingenious whereby he proves that a Tribune of the people being therefore accounted sacred and Inviolable because he is consecrated by the people to defend them in case he shall endeavour to oppress them to diminish their power and to take from them their rights of suffrage doth thereby actually degrade himself in not performing that for which that honour was conferr'd on him For to admit saith Gracchus that the Tribunes of the people may in some cases imprison their Consul and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it even against those from whom he received it seeing that both the Consul and the Tribune were by the people created would be very absurd The like we find asserted by Johannes Major namely That a people cannot abdicate their power of deserting their Prince in such cases as tend to their manifest destruction Both which may be very well expounded by what hath been herein already delivered XII And against him who breaks the condition upon which he was admitted Fifthly In case a Kingdom be confiscate either by Felony committed against him whose the Fief is or by any clause or condition expresly made and agreed on at his admission to the Kingdom As in case the King shall do this or that his Subjects shall then stand absolv'd from all obligation of duty and obedience unto him †Vid. Marian. de regno Arragon In this case also a King may recede into the condition of a private person XIII And against him who havlng but one part of the Soveraign power Invades the other Sixthly If a King having but one part of the Soveraign power and the Senate or people the other if such a King shall Invade that part which is not his own he may justly be by force resisted because in that part he hath not the Soveraign power Which I believe may take place although it be said That the power of making War is in the King For this is to be understood of a Foreign War since otherwise whosoever hath any part of the Supreme power cannot be denyed a Right to defend his own even by force which when it happens even the King himself may justly by the Right of War lose even his own part of the said Empire XIV And against him who grants such a Licence in certain cases Seventhly If in the Translation of the Empire it be expresly said That upon some certain events that may happen it may be lawful to make resistance For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained yet certainly it may be conceived that some kind of natural Liberty was thereby understood to have been reserved to the people and exempted from the power of the King * Thuan. l. 131. in anno 1604. Id. l. 133. an 1605. de Hâ—ngaria For possible it is for him that alienates his own Right to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements whereof we may find
in Histories many examples †Meierum in anno 1339. de Flandr Brab ◠XV. An Usurper how far to be obeyed The Acts of an Usurper binding and why We have hitherto treated of him who hath or had a Right to Govern now something we must say of him that Invades or Usurps the Government not after he hath either by long possession or by Consent or Agreement obtained a Right unto it but so long as the cause of his unjust acquisition continues And certainly during the time that he possesseth the Empire his Acts may have power to bind But yet not as they are his for Right to command he hath none but upon this presumption That he who of Right should govern whether King People or Senate had rather that his Laws for that time should be binding than that the people should live altogether without Laws and without Judgements which must necessarily introduce the greatest disorder and confusion Cicero condemns Sylla's Laws as too cruel against the children of those that were proscribed in making them uncapable of suing for Honours yet he thought fit that those Laws should be observed Affirming as Quintilian tells us that the state of the Common-wealth was so contained in those Laws that if they were not kept the Common-wealth at that time could not have subsisted Florus also concerning the Acts of the same Sylla saith thus Lepidus went about to rescind the Acts of this so great a man and indeed not without cause if at least he could have done it without the ruine of the Common-wealth And by and by It was expedient for the Common-wealth being then sick and wounded to be governed by any Laws whatsoever rather than to fret and scarrifie her Wounds by attempting an untimely Cure Yet notwithstanding at such times and in such Cases wherein our obedience is not so exquisitely necessary and yet may help to confirm the Usurper in his unjust possession If by our disobedience we incur no great danger we must not obey But whether it be lawful for the people by force of Arms to deject him that shall thus usurp the Soveraign power or to kill him is disputable XVI An Usurper may be killed during the War if no contract be made with him And in the first place If he that usurps another mans dominion have not gained it by a Just War that is by such a War as hath all the Rights required by the Law of Nations nor by any contract or agreement made with him or Faith given to him but that he holds his possession by force only The Right of War seems in this case to continue By the Right of the War continued and therefore what may lawfully be done against an enemy may lawfully be done against him whom any private man that hath not given his Faith to him may lawfully kill In reos Majestatis publicos hostes omnis homo miles est Against Traytors and publick Enemies every private man saith Tertullian is a Souldier So against such as desert their Colours in the time of War Tertul. Apolog. it is indulged unto every man to take publick revenge in order to the common safety XVII Or by vertue of some antecedent Law The same may be said if before such an Invasion there were extant any such Law authorizing any private man to kill him who dares in his presence commit such or such a fact As for example If being but a private man he shall go with a guard about him or if he shall attempt a Fort or kill a Citizen uncondemned or illegally condemned or if any man shall presume to create a Magistrate without just suffrages Many such Laws we may read of to have been in force among the Cities of Greece with whom it was also thought lawful to kill such Tyrants Such was that Law of Solon in Athens renewed after his return from Piraeeus against such as had abolished Popular Government or that after such abolition had born any office The like Law there was also in Rome called the Valerian Law against any man that should assume the office of a Magistrate without the peoples consent making it lawful for any man to kill such a man uncondemned Plut. Public as Plutarch relates where he thus distinguisheth Solon's Law from that of Publicola's Solon would have such a man legally convicted but Publicola permitted any man to kill him that usurped the office of a Magistrate without any formal Process And such was the Consular Law immediately after the Decemviral Government That no man should dare to create a Magistrate without an Appeal and he that created such might by the Laws both of God and Man be killed XVIII By his Commission who hath Right to the Empire No less lawful it is for him to kill an Usurper that hath an express Warrant so to do from him to whom the just Right of Government belongeth whether it be in the King the People or the Senate Amongst whom likewise we may place the Protectors or Guardians of Kings during their nonage Such as was Jehojada's to King Joas at whose command Athalia was deprived at once both of her Life and Kingdom 2 Chron. 23. XIX Why an Usurper may not be killed but in one of these cases Now unless it be in one of these Cases I cannot perceive how it should be lawful for any private man by force either to deject or to destroy him that usurps the Imperial Dignity Because possible it is that he who hath the true Right had rather prefer the peace and tranquillity of his Subjects though under the Usurpers power than embroil his Countrey in blood or to vex his Subjects with Civil War which are the sad and bloody effects and consequences that attend the Murther or Expulsion of Kings especially if his quarrel be espoused by either a strong Faction at home or powerful Friends abroad Or because it is at least doubtful Whether that King People or Senate in whom the Right of Empire is are willing that the matter should be brought to so desperate an issue And without the precise knowledge of this all violence of this kind is unjust It is very true what Favonius in Plutarch observes Pejus est Bellum Civile Dominatu Illegitimo Vita Bruti An Intestine War is more destructive than any Tyranny For though the Rage of Incensed Tyrants may produce more Tragical effects upon some particular Families ☜ yet the Deluge of a Civil War spreads farther continues longer and leaves more dreadful prints behind it than any Tyranny Give me any peace saith Cicero rather than a Civil War Titus Quintus told the Lacedaemonians Liv. 34. That it would be much better for them to bear with the Tyranny of Nabis than by endeavouring by Arms to recover their lost Liberty to make the Tyrants Grave in the ruines of their City And to this purpose was that prudent advice of Aristophanes Leo in Civitate non est alendus
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
kill him and to a man or woman to kill him that shall attempt to ravish them Aug. lib. 1. de lib. Arb. or after the Rape is committed if they can So Paulus the Lawyer He that shall slay a Thief or a Ravisher ought not to be punished for by a publick and heroick Act the one defends his Life the other her Chastity Amongst women that have thus defended their Chastity with the death of him that attempted it Heliodorus records the noble act of Heraclea which he calls a Just defence of her honour Another amongst men we have recorded by Plutarch Plut. vit Marii of one Trebonius who slew C. Lusius a Tribune of the Souldiers and Marius his own Sisters Son for attempting to bugger him for which fact he was by Marius honoured with a Crown VIII Yet may this defence sometimes be laudably omitted Although as we have said it be lawful to kill him that is ready to kill me yet is it more commendable to chuse rather to be killed than to kill which some grant yet so that it be with this limitation that it excepts that person upon whom the safety of many doth much depend But I cannot judge it safe to impose this so contrary a Law to patience upon all those whose lives are beneficial unto others and therefore I think it more convenient to restrain the exceptions to such only whose office and duty it is to defend others from violence As to those whom we have contracted with as our Guards to defend us in our Journeys either by Sea or Land and to such as are publick Governors unto whom that of Lucan may not unfitly be applied Cum tot ab hac anima populorum vita salusque Pendeat tantus caput hoc sibi fecerit orbis Saevitia est voluisse mori Since on thy life so many lives depend And wast made Head the Members to defend To wish to dye were madness As also that of Curtius Whilst thou unadvisedly exposest thy life to so many perils Lib. 10. thou dost not remember how many of thy Subjects lives thou endangerest which thou oughtest to defend IX Our defence against a person publickly useful unlawful by the Rule of Charity On the contrary It may so fall out That the life of him that endangers ours is so beneficial to others that he cannot without sin be killed and that not only because it is forbidden by Gods Law both in the Old and New Testament which we have already proved where we shewed that the Person of a King is sacred but by the very Law of Nature For the Right of Nature as it signifies a Law doth not only respect those things which are agreeable to that which we call Expletive Justice but it comprehends also the Acts of Fortitude Temperance and Prudence as being in some certain circumstances not only honest and laudable but strictly due But unto this that we have said we stand obliged by Charity Neither am I at all startled from this opinion of mine by what Vasquius urgeth That the Prince that shall Insult over an Innocent person doth ipso facto cease to be a Prince than which nothing can be said less true or more dangerous For as Right and Property so Soveraignty is not lost by mis-government Soveraignty not lost by mis-government unless some Law doth so determine it But by what Law was it ever yet decreed that Kings should lose their Soveraignty by an offence committed against a private person Surely there was no such Law ever yet found nor I believe ever will be For the condition of Princes would then be very slippery and the Common-wealth soon fall into Confusion And as to that which Vasquius layes as his ground work The errors of Vasquius confuted whereupon he erects this and many other such dangerous conclusions as namely that all Soveraignty was granted for the benefit of the Subjects and not of the King were it universally true yet were it nothing to the purpose For the thing it self doth not then wholly cease although the benefit or profit thereof doth in some part cease And whereas he adds That every man wisheth well to the Common-wealth for his own sake and therefore every man should prefer his own safety before that of the Common-wealth it doth not follow For although we do wish the preservation of the Common-wealth for our own sakes because our own safety is included in it yet do we not wish it only for our own sakes but for the good of others also For the opinion of those Philosophers who hold that true friendship doth arise out of some Indigency or Insufficiency is rejected as false and pernicious seeing that Man being a creature naturally sociable is promptly and of its own nature inclined unto it But that I should prefer the common safety before mine own Charity doth sometimes perswade and sometimes command me Plutarch will tell us Vita Pelop. That the principal part of Valour is to defend our Defender And Cassiodore illustrates this by a very fit comparison If the hand saith he by its intelligence from the eye perceive a blow threatning the head without regard to its own safety it will interpose it self between it and danger From whence he infers That they who to redeem their Prince his life hazard nay lose their own do but the same in the Politicks which the hand by Instinct doth in the body Natural It is no marvel saith Seneca if Kings and Princes being the Guardians of publick States be dearer unto us than our own Relations For if in the Judgement of the Wise Lib. 1. de Clem. c. 4. the Publick Good be to be preferred before any private mans It will easily follow That he that is the Father of our Countrey deserves to be dearer unto us than the Father of any one Family Or as St. Ambrose speaks He that delivers a Nation from desolation merits more love De Off. l. 3. c. 3 than he that delivers us from particular dangers And therefore the same Seneca doth highly commend Calistratus and Rutilius the one an Athenian the other a Roman who refused to have their own estates restored unto themselves by the publick ruines Lib. 6. de Bâ—n c. 17. esteeming it much better to perish by themselves than to redeem their own lives and fortunes with the destruction of their Countrey X. To kill any man for a slight injury not lawful for Christians There are also that hold it lawful to defend our selves from any slight Injuries as a box on the ear or the like even by killing him that attempts it But respect being herein had to Justice meerly Expletive I cannot dissent from them For although the Inequality be very great between a box on the ear and death yet he that shall attempt to injure me doth therein give me a Right that is a kind of Moral power to oppose him without any limitation so far forth as I cannot
otherwise repel or avoid the Evil intended against me Neither doth Charity by it self seem to restrain us herein in favour to the Nocent Linus the Musician provoking his Disciple Hercules with a slight blow had his brains beaten out by Hercules with his own Harp and being by some arraigned for the Murder appeals for his Indempâ—ity to that Law of Rhadamant whereby he that wounded another being by him first assaulted was declared Innocent But the Christian Law doth clearly forbid it and Christ himself doth expresly charge his Disciples patiently to suffer any such slight injury though reiterated rathâ—r than to hurt our adversary How much more doth he forbid them to kill him to avoid a box on the ear By which particular Instance we are sufficiently cautioned against that of Covarruvias That Mans understanding being well Instructed in what is naturally Right will not endure that any thing should in natural reason be permitted that is not also permitted by God who is very Nature it self For God who is so the Author of Nature that he sometimes acts Freely above Nature hath a right to bound and to limit us by Laws even in such things as are in their own nature Free and Indefinite much more hath he power to oblige us to that which is naturally honest though not due But a wonder it is That since Gods will is in this point so expresly declared in the Gospel Navarr c 15. 4 Henr. de Irregul c. 11. Vict. de Jure Be lâ— n. 5. there should yet be found so many Christians yea and those Divines who maintain not only that for the avoiding of a box on the ear or such like slight Injury we may lawfully kill our adversary But that in case he that hath smitten us do fly yet may we pursue him even to death for the vindication of our own honor which seems to be as equidistant from natural reason Honor what as from Christian piety For Honor est opinio de excellentia Seen more in patience than an over-hasty revenge Honour is an opinion of some Excellency in the person honoured But he that can bear such an Injury doth express himself eminently patient and by that means doth rather magnifie than diminish his own honour Neither is it much material That some men of corrupt Judgements do reproach this Vertue by the name of Cowardice For those shallow heads can neither alter the thing it self nor lessen the reputation of it Neither was this the Judgement of the Primitive Christians only but of the Ancient Philosophers also who ever accounted it an argument of a weak and pusillanimous Spirit Not to be able to digest an Injury To kill a man for a slight Injury tho' naturally lawful yet is contrary to the Laws of God and of Charity as we have elsewhere shewed And from hence we may collect how deservedly their Opinion is to be exploded who hold it lawful by even Divine Right for that it may be so by the Right of Nature I deny not to defend our selves even from mean and slight Injuries by even the death of the person Injuring although we may without any danger avoid him by Flight or otherwise Because it is accounted dishonourable in a Person of Quality so to do whereas indeed the scandal is not justly given but by a popular misprision unjustly taken and by all those who understand wherein true Wisdom and Valour do consist to be contemned And it doth not a little rejoyce me that herein I have the concurrent opinion of that Excellent Lawyer Charles Moline amongst others to abett me In addit ad Alex. Cons 119. Now what is said of a blow on the cheek and of Flight the very same may also be said in all such cases wherein our honour or reputation is not greatly wounded But what if a man shall speak that of us which being believed may blast our credit and esteem with men Some there are that would perswade us that we may lawfully kill him also Pet. Navar. l. 2. c. 3. n. 376. but very erroneously and against the Law of Nature For this is no fit means whereby we may hope to clear our Fame or to repair our good Name being sullied XI To kill any man in defence of our goods by the Law of Nature not unlawful Let us now proceed to those Injuries whereby we are damnified in our Goods or Estates And if we respect Expletive Justice only I shall not deny but that for the conservation of them the Robber if need be may be killed For as there is some Inequality between a righteous man and a Thief so in the judgement of the Law the Goods of the Innocent are evenly ballanced with the Life of the Nocent Whence it follows That if we respect this Right only a Thief flying away with stoln Goods if those Goods cannot otherwise be recovered may be killed So Demosthenes in his Oration against Aristocrates Is it not saith he a very sad Case and contrary to all Law and Equity that I should not be permitted to use violence against him who by violence hath dispossest me of my Goods Neither doth common charity setting aside the Laws of God and men hinder me by way of precept unless it be for things of so small value as deserve rather to be slighted than with such eagerness to be prosecuted which is an exception that some Writers do admit of XII How far lawful by the Law of Moses Let us now see in what sense the Mosaical Law is to be understood whereunto that old Law of Solon was parallel which Demosthenes commemorates against Timocrates from whence was taken the Law of the 12. Tables and that of Plato also in his Ninth de Legibus All which Laws do agree in this That they put a great difference between a Night and a Day-Thief But concerning the reason of this Law there is some question Some are of opinion The Day-Thief and the Night-Thief distinguished that the only reason of this Law is because by Night it cannot well be discerned whether he that breaks into an house be a Thief or a Murderer and therefore to prevent the worst he may be killed as a Murderer Others place the difference in this That in the night a Thief cannot be known and consequently the Goods stoln cannot be recovered and therefore he may be killed But in mine opinion the Law-makers had no regard to either of these properly but rather that none ought to be killed for stealing of Goods directly yet that in some cases the Goods stoln might occasion the death of him that stole them namely when the Goods stoln cannot otherwise be recovered but by killing him who is flying away with them But if I my self in pursuing after my Goods shall be brought into danger of my life then it may be lawful for me to redeem mine own life out of danger though with the hazard or loss of another mans Neither can it be
Enna saith Livy was detained either by fraud or out of pure necessity For whatsoever here doth in the smallest degree decline from necessity is injury The Graecians that stood in great danger for want of Ships by the advice of Xenophon De exped Cyri lib. 5. seized such as passed by yet so that the Goods were preserved entire for the Owners and the Seamen well fed and paid The First Right therefore that since propriety was introduced pleads for exemption is this of Necessity XI In cases of innocent profit The next is That of Innocent profit What should hinder us saith Cicero †De off l. 1. De benef lib. 4. from communicating with others when we may do it without any detriment to our selves especially in those things that are profitable to those that receive them and not damagable to us that give them Seneca will not admit of this to be a courtesie to kindle a Coal at our Fire or to light a Torch or a Candle by ours Plutarch accounts it an act of impiety to cast away what we cannot eat to seal up a Fountain when we have drank our selves full to remove Land or Sea-marks which have been useful unto us For saith he in these things after that we have satisfied our selves every man hath a common Right So a River as it is a River is the propriety of those people whose the Banks are or his who hath the Soveraign Power over them in whose power it is to make Dams or Mills in it and whatsoever is bred in that River is his But that River as it is a flowing Stream remains common every man hath a Right to drink or to draw water out of it as well as he that owns it Quis vetat apposito lumen de lumine sumi Atque cavum vastas in mare servet aquas Who at his Torch light to a Torch denyes And wh'would engross the Seas vast Cavities saith Ovid who also brings in Latona thus bespeaking the Lycians Quid prohibetis Aquas usus communis aquarum Why water d' ye deny Whose use should common lye Where also he reckons water among those publick Gifts that Nature bestows upon all men alike the word Publick being improperly taken in which sence some things are said to be publick by the Law of Nations Virgil tells us the water is open and common to all as well Strangers as Natives XIII A right to travel by Land or Sea common to all Thus both Lands Rivers and such parts of the Sea as are held by any Prince or People in propriety ought to lye open and free to all such as have occasion to pass over them upon any just and lawful cause as namely either because being expelled their own they seek after some other Country that lyes waste or because they desire to traffick with some people remote from them or even because they seek to recover what is their own by a just war The reason is the same here as above because it is very probable that dominion was introduced at the first with this limitation that such things should remain in common use which might be profitable to some and not hurtful to others And therefore the first Authors of Propriety are conceived to have thus agreed it A signal example whereof we have in the History of Moses Numb 20.21 Numb â—â—â—1 who being to march through the borders of the Edomites and Amorites offers these Conditions That he would travel only through their high-ways without trespassing upon any private mans possessions if he had need of any thing that was theirs he would pay the just price of it Which being rejected was ground sufficient for that War which he made against the Amorites Whence St. Augustin thus Li. quaest 4 sup Numb c. 20. An innocent passage was denyed them which ought by the Laws of humanity to lye open and free to all who require it Whereupon St. Augustin concludes That the war made by the Israelites against the Amorites was just Hercules flew Amyntor King of the Orchomenians Apollodor because he denyed him a free passage So did the Graecians make War against Josephus because he refused to give them leave to pass through the borders of his Country Thus also do the Graecians Scholiast in Hor. Carmen in Canidiam which were under Clearchus plead We say they are travelling towards our own Country peaceably if none molest us but if any shall hinder us we will endeavour by the assistance of the Gods to force our way So likewise Agesilaus returning out of Asia when he came to Troas demanded An ut Amicum se an ut hostem transire mallent Plut. Ages Whether they desired that he should pass through their Country as a Friend or as an Enemy The like demand was made by Lysander to the Boeotians Rectis se hastis se transire vellent an inclinatis Whether they would have him to pass in a peaceful or in a warlike posture Hist l. 4. Thus do the Batavians remonstrance to the Bonnenses in Tacitus If none oppose us our march shall be innocent but if we find resistance we will force our passage with our Swords Cimon carrying Succours to the Lacedaemonians led them through the Territories of Corinth and being blamed by the Corinthians Leave to be first asked that he had not first acquainted the City with his purpose for they that knock at other mens doors say they enter not but by permission returns this answer But ye saith he have not knockt at the doors of the Cleonaeans and of the Megarenses but have broken them open Censentes omnia potere debere plus valentibus Conceiving that all places ought to lye open to the strongest But the most moderate opinion is the best Leave is first to be demanded according to that of Aristophanes Whilst toward Delphos we our Army lead First from Boeotians we free passage crav'd But if it be denyed then may our passage be justly forced by Arms Which if denyed may be forced When the Germans and the French made war one against the other for Maranus the Venetians gave free passage to them both whereof when the Germans complained they were answered that they could not hinder it but by Arms which it was not their custom to use but against their publick Enemies Agesilaus in Plutarch returning out of Asia Paruta lib. 11. and demanding free passage for his Army through Macedon was answered by the King that he would consult about it Whereunto Agesilaus replyed Consultet nos interea intrabimus Let him consult and we in the mean time will enter Neither may it be justly objected that the multitude of those that are to pass may give just cause of fear for Jus meum metis tuo non tollitur My Right is not taken away by thy fear Remedies against this fear And the rather because there are certain Remedies provided against this fear as that they shall march
to the use thereof lies Common to all Men. Which seeming Contradiction may be thus easily reconciled The Seas and Shoars how Common and how held in Propriety Neratius speaking of the Shoar as to the necessary use thereof to Mariners and to such as pass by saith That it is naturally Common but as to any benefit or profitable Improvement of it by erecting Forts or other durable Buildings so as Celsus well observes it is peculiar to the People of Rome For as Pomponius likewise informs us such Buildings could not be erected without special Licence from the Praetor either on the Shoar or in any part of the Sea which was contiguous to the Shoar and so reputed as part of it X. That the Law of Nature doth not hinder but that part of Sea closed by Land may be occupied Though these things be true yet doth it arise from Custome and Consent and not from the Law of Nature that the Sea in that sence taken as is before declared is not occupied nor by right could be So the King of Denmark having seized and confiscated some Merchants Ships of Hull for Fishing on the Coasts of Norway near Island without leave our most wise Queen Elizabeth pleaded That the best Lawyers had adjudged the Sea to be free and by the Law of Nations Common to all nor could be Interdicted by any Prince And as to Custome she answered That neither his Great Grand-father nor his Grand-Father nor his Father had ever exacted it Camd. Eliz. anno 1600. But on the contrary That his Father had granted That the English abstaining from Injuries should have freedom of Fishing without leave For Rivers also are publick we know and yet the right of Fishing in some corner or creek of the same River may properly belong to some private person Nay even of the Sea it self it is said by Paulus the Civilian That where it is the proper Right of some particular person he may have an Injunction to quiet his possession for this is now a private case for as much as it concerns the Right of Possession which properly appertains to private not publick causes where doubtless he treats of some small portion of the Sea let into some private mens ground Which we read was usually done among the Romans as by Lucullus and others And as Salust testifies by many private men in his time who had subverted many mountains and made Seas out of dry Land Whereunto Horace thus alludes Whilest Mountains into Seas are cast Fish frightned from their holds do stand agast The like is recorded by Paterculus We saith he inject huge hills of earth into the Sea and when we have made Mountains hollow we let in the Sea to fill up the Concave Pliny likewise speaking of the earth saith That it must be embowelled to let in the Sea With what great Bulwarks saith Cassiodore are the Sea banks decently Invaded How far doth the Earth encroach into the Bowels of the Sea So that as Tibullus writes Th' untam'd Seas with Mountains are immur'd That Fish from Winters storms may lye secur'd Varro writing of L. Lucullus saith That having cut through a Mountain near Naples and thereby made a passage for the Maritine Rivers into his Ponds he had so great plenty and variety of Sea Fish Vita Luculli that Neptune himself had not more Plutarch also records the same of Lucullus That having surrounded his Villages with Trenches and Channels even from the Sea and so stored them with Fish he made his Banqueting-house within the Sea it self Lib. 9. c. 54. So doth Pliny That having at a vast charge dugg through a Mountain and let in the Sea he was by Pompey the Great called Xerxem togatum The very like doth Valerius Maximus record of C. Sergius Orata Who by letting in the Sea at Spring-tides and intercepting its going out made Seas peculiar to himself But the very same we find afterwards produced by the Emperour Leo in opposition to the opinions of the Ancient Lawyers about the passages of the Thracian Bosphorus namely That they might be inclosed within certain bounds and possest as a private estate Now if any part of the Sea may be annexed to a private mans estate as being environed by it and in respect of the Land so small in proportion that it may be deemed as a part of it and that the Law of Nature did not oppose it why may not that part of the Sea which is contiguous to the Shoar be reckoned as a part of his or their dominions whose the Shoars are Especially whilest that part of the Sea being compared with the Territory is no greater than a small creek of the Sea compared with the greatness of a private mans Land wherewith it is encompassed Neither will it much alter the case to say That those Seas are not on all sides surrounded as may be easily illustrated by the example of a River that is not every where begirt with Banks or by the example of the Sea that for conveniency of Importation is let into some Town adjoyning to the Shoar But there are many things indulged unto us by nature which the Law of Nations by common consent do prohibite wherefore where this Law is in force and not by common consent repealed no one part of the Sea though for the most part surrounded by the Shoar And questionless though the Seas be naturally free yet as to any profit that may arise from that part of the Sea that is contiguous to the Shoar as by Fishing or otherwise it may by custome or consent be possest by the Prince whose the Territories are Whether strangers may fish in those parts of the Sea that joyn to the Shoar of another Prince For the distinct dominion of that part of the Sea bordering on the Territorie of any Prince is best seen by the Taxes and Tributes which those Princes take of strangers for Fishing whereof we have many precedents As in Russia where the Tax for Fishing is very great insomuch that the Hollanders gave the tenth Fish Denmark takes great Tribute at Ward-house and in the Sound As also for Fishing in the North Sea and even for Navigating that Sea between the Coasts of Norway and Island as the Merchants of Hall lately found by sad experience as Sweden also did heretofore when Norway was theirs All the Princes of Italy do the like for Fishing on their respective Coasts in the Mediterranean The Earls of Orkney in Scotland took the tenth Fish for the Isle of Orcades So do the Lords of Mannors in the West of England for Pilchards Hake and Conger The States lay Impositions upon the Fish taken within the Seas and Streams of other Princes also on those taken on their own Coasts Edward the Third of England took 6 d. per Tun in his time which is now as much as 18 d. H. 7. resolved to set up the Fishing Trade in England considering that it was most proper for him
so to do in respect of his dominion in the North Sea Queen Mary let a Lease of the Fishing of the North parts of Ireland for twenty one years for a certain Fine and 1000 l. yearly Rent to be paid into the Treasury of Ireland The Hans-towns had liberty of Fishing granted them in those Seas 1 Mar. upon some conditions as appears by the Rolls of Chancery And for the Fishing in the North Seas Natures Law Merchant Licences were usually granted at Scarborough Castle King James set out a Proclamation 1609. to restrain all strangers from Fishing on the Coasts of England Scotland and Ireland without Licence to be yearly granted can be claimed by any people as their peculiar Right XI How such possession is gained and how long it lasts But this also is to be observed That where this Law of Nations is not yet received or now abolished the bare possession of the Coasts is not sufficient to entitle any people to a Right in the Seas adjoyning Nor is it enough for a Prince to conceive or to write himself Lord of the Seas unless by some Overt Act he proclaim himself to be so Besides That Dominion that is acquired by occupancy may be deserted and then the Sea returns to its pristine nature and is Common to all as the Shoars are being destitute of buildings and as the Right of Fishing in Creeks of a River as Pomponius notes XII Such Occapancy hinders not our Right to Traffick innocently by Sea But most certain it is That the Right that is gained by Occupancy extends not so far as to give a Right to Impede any Nation from the benefit of a free passage so as it be meerly for Innocent Commerce and Traffick but not for depredation or such like acts of Hostility seeing that even by Land we allow the like freedom of passage which usually is less necessary and more offensive XIII That the Soveraignty over some parts of the Sea may be possest and how But that the sole Soveraignty over some parts of the Sea without any other Propriety may be held may more easily be evinced Neither as I suppose can the Law of Nations whereof I have spoken gain-say it The Argives charge it upon the Athenians as a manifest breach of their League For that they had suffered the Spartans being their enemies to pass through their Seas unmolested whereas it was expresly provided against in the said League That neither party should permit the others enemies to pass 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 through any part of their dominions Lib. 6. And as Thucydides records it when the Grecians had made a truce for some years in the Peloponesian War it was allowed to the Megarenses That they might freely and safely pass through their own and their Confederates Seas So likewise Dion Cassius describing some part of the Sea doth it thus All that Sea belonging to the Roman Empire And Themistius also concerning the Roman Emperour saith That his dominion reacheth over Sea and Land And to the same purpose is that of Oppianus to the Emperour The Seas do know no others Laws but thine Dion Prusaeensis among the many priviledges given by Augustus unto the City of Tarsis adds this That he gave them the dominion over the River Cydnus Philip 2. and over the Sea adjoining thereunto Demosthenes saith That the Lacedaemonians governed all both by Sea and Land And he that wrote the life of Timotheus relates That after such a time the Lacedaemonians laid down their long continued claim and voluntarily yielded unto the Athenians the Soveraignty over the Sea Curtius of the City of Tyra saith much to the same purpose That she sate as Queen in the midst of the Sea extending her dominion not to her Neighbouring Seas only but to all others whithersoever her Fleet should ride Philo the Jew discoursing of Kings saith That they add to their possessions Seas infinite in number and extent So he that penn'd that Oration concerning Halonesus which is inserted amongst those of Demosthenes speaking of Philip of Macedon saith All that he desires of us is That we would confess our selves unable to defend the Seas without him and therefore that we would put him into the possession of them And the Emperour Julian speaking of Alexander saith That he endeavoured by that War to make himself Lord both of Sea and Land Now what Alexander endeavoured to do his Successor Antiochus claimed as his right as appears by that Speech of his in Gorionides Nonne terra mare mea sunt Are not both the Sea and the Land ours So also did his other Successor Ptolomy if Theocritus deceive us not O're many Seas and Lands his Empire reacht And again All Lands and Seas and roaring Rivers lye Vnder the Empire of King Ptolomy Now let us us descend to the Romans Hannibal himself thus bespake Scipio the Greater We Carthaginians are confined within the Coasts of Africk whilest ye Romans are known to lord it over Foreign Kingdoms both by Sea and Land And of the Lesser Scipio Claudian writes thus With Rome's great Power first in Revenge he awes The Spanish Ocean under Roman Laws All the Roman Historians do every where call the Mediterranean Sea their own As Salust Florus Mela and others But Dionysius Halicarnassensis owns them as Lords not of the inland Seas only which he bounds with Hercules Pillars but of the Ocean as far as it is not impossible for men and Ships to sail And Cassius grants That their Empire extended almost as far as there was either Sea or Land Appian describing the vastness of their power assigns unto them the Euxine the Propontis the Hellespont the Aegaean the Pamphilian and the Aegyptian Sea And Plutarch makes Pompey Lord of all that Sea that lay within Hercules Pillars So doth Appian This also doth Philo against Flaccus acknowledge Since which saith he the Family of the Caesars have got the Empire both of Sea and Land Ovid also speaking of Augustus Caesar saith Pontus quoque serviet illi Even the Seas shall him obey And Suetonius likewise records it in honour to the same Augustus That during his Reign the Temple of Janus was twice shut up he having so often made peace with all Nations both by Sea and Land And in another place he tells us That the same Augustus kept constantly two great Fleets the one at Misenus the other at Ravenna for the defence of the Vpper and the Nether Seas So also Valerius Maximus tells Tiberius That by the unanimous consent of both Gods and men the Soveraignty of the Seas was committed to him The very same doth Philo testifie of the said Tiberius That his Empire comprehended both Sea and Land And therefore Josephus stiles Vespasian Terrae Marisque dominum The Lord of Sea and Land The like doth Aristides in many places attribute to Antoninus the Emperour Procopius tells us of several Statues of the Emperour Justinian erected in many places as holding in his hand
conditione To some things men may have a Right though with some restraint and limitation To the same sense is that of Dion Prusaensis There are many ways and those very discrepant whereby things may be called ours for a right we may have to a thing although we can neither alienate it nor use it at our own pleasure The like I find in Strabo Dominus fuit dempto vendendi jure It was his by right yet had he no power to sell it now very opposite to what hath been here said De moribus Germ. is that which Tacitus records of the Germans Who consigned to such a number of people such a proportion of their fields to inhabit which they presently divided apportioning to every man according to the honour and esteem they had of him By which means seeing that every mans Estate depended on the publick if at any time it should fall out that any part of the whole wanted an owner it was not his that could next seize it but it escheated either to the people in general or to some Superiour Lord. And thus we read that in some places the goods of such as died without children were seized to the use of the people and that there were certain Magistrates appointed to administer them For so Eustathius interprets that of Homer Partiebanter opes rectores urbis The City Rulers did his wealth divide Some such Law as Histories inform us there was anciently in force in the Kingdom of Mexico and haply the Civil Law may have introduced such a kind of right in some other such like cases as we have now begun to observe CHAP. IV. Of a Presumed Dereliction and the following Occupancy And wherein it differs from Prescription and Usucapion Note Usucapion respects things moveable Prescription things immoveable The former must be three years possest the latter ten but if the party be absent twenty I. Why Vsucapion or Prescription strictly taken is of no force among diverse Nations or their Governours II. Yet among these are usually pleaded long Possessions III. The reason drawn from humane conjectures and those not from words only IV. But from deeds done V. And from some left undone VI. How Time joyned with non possession and a non-claim is sufficient to ground our conjectures of a Dereliction VII Ordinarily Time out of Mind sufficeth for such a conjecture and what that time is VIII An Objection answered IX That setting aside conjectures even by the Law of Nations Dominion may seem to be transferred by possession time out of mind X. Whether the Right of such as are unborn may be thus taken away XI That even the Right of Soveraign Power may be thus gained by either King or People XII Whether the Civil Laws concerning Vsucapion and Prescription do bind them that have the Supream Power explained by a distinction XIII What Rights do either separably or communicably adhere to the Supream Power may be either got or lost by Vsucapion or Prescription XIV That Subjects may at any time lawfully assert their own liberty refuted XV. Those Rights that are meerly in our own power no time can take away I. Long possession of no force among different Nations A Notable Question doth here arise concerning a long continued possession For seeing it is the Civil Law that gives life and being to this Right For Time in its own nature hath no effective power For nothing is done by time although there is nothing that is not done in time †Nihil fit à tempore quamvis nihil non fit in tempore it can be of no sorce as Vasquius observes between two free Nations or Kings nor between a King and a Free People no nor between a King and the Subject of another Prince nor yet between two private Subjects of two several Kings or people Thus were the English Commissioners answered demanding Calice upon the Prescription of Two Hundred and Thirty years That Prescription of Time took no place amongst Princes Camd. An. Reg. Eliz. 10. For as we read amongst the Laws of the Twelve Tables Aeterna Authoritas cum hoste isto Our claim against an Enemy i. e. a foreigner is everlasting So likewise in things stoln the right Owner never loseth his property For the word Authority in that place signifies the Right of Dominion which holds true unless it be when either the Thing or Act is held by the Laws of the Territory But yet in admitting this one main inconvenience would ensue namely that Titles to Kingdoms and Controversies concerning their bounds would never be at an end which would not only procure much trouble and perturbation of mind among many and occasion matter for War but is repugnant to the common sense of all Nations II. Yet it is sometimes pleaded by them For both Jephtha in the Sacred Story defends his Title against the Claim of the King of the Ammonites unto all that Land lying between Arnon and Jabock and from the Arabian Desarts unto Jordan by an uninterrupted possession for three hundred years and demands of him why in so long a time neither he nor his Ancestors did ever challenge those Lands And the Lacedaemonians also in Isocrates urge it as a thing most certain and granted by all Nations That publick possessions as well as private might by long continuance take so deep root and be so strongly confirmed that they could never be recovered By which Right they dismissed those that came to demand Massena And thus doth the same Isocrates urge it against King Philip That length of time had rendred the Title Indisputable And upon this very account it was that the latter Philip told Titus Quintius That as for those Cities which he had taken by the Sword he was willing to set them free but for those that he had received from his Ancestors by a just and hereditary right of possession he would not relinquish them Sulpitius pleading against Antiochus shews That because the Graecians had sometimes served in Asia therefore to endeavour by War after so many years past to reduce them again into bondage was very unjust Tac. Anr. l. 6. And nothing among Historians is reputed more vain and foolish 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De off l. 2. than to require things long out of possession To the like purpose is that of Cicero With what colour of Justice can we deprive him of those Lands whereof for so many years nay ages past he hath been quietly possest And that also of Florus Lib. 3. c. 13. Their Countrey notwithstanding which their Ancestors had left them they held as firmly by prescription as if it had descended unto them by an hereditary Right III. How things may be said to be forsaken What then shall we say The effects of Right that depend upon the mind cannot notwithstanding by the sole acts of the mind be obtained unless that act be declared by some overt signs For to attribute so much of efficacy to the bare acts of
to prove the injustice of his demands in requiring those Cities which neither he nor his Father nor his Grandfather ever enjoyed Thus Queen Elizabeth pleaded against the King of Denmark for the fishing upon the coasts of Norway and New Island without leave That neither his Great Grandfather nor his Grandfather nor his Father had exacted it and therefore concluded it to be unjust Seeing also that the Sea is free for all by the Law of Nations Porphyry accounts thirty years for an Age and Herodian in the life of Severus An Age what accounts three Ages for a Century Philo also reckons in three hundred years ten Kings to Reign in Egypt so Plutarch records fourteen Kings to have Reigned in Lacedaemon in five hundred years And therefore the Emperor Justinian wisely forbad that any Title should be set on foot that had been discontinued for four Ages VIII An Objection answered But here it may be objected That seeing that men do naturally love themselves and whatsoever is theirs it is not easily to be presumed that they will cast away what is their own and therefore such Negative Acts though long continued can be no sufficient ground to conclude a Dereliction But we ought also to believe so charitably of men that they would not suffer one another to live perpetually in a sin unrepented of for any thing that is vain and perishable which cannot oft-times be avoided unless we do grant such a dereliction As concerning Empires though they are held in great esteem among men Cic. pro Dejot yet are they not without their burthens for if they be not well administred they expose the Governor to the wrath of the Supreme Judge And as the case were sad when they that are Tutors and Guardians should waste the Orphans Estate with needless Suits at Law about the Right of Tutelage Lib. 1. or to use Plato's similitude to this very purpose when Mariners in a Storm shall contend to the endangering of the Ship whether of them can best steer her so they are not always the best Patriots who can be content to sacrifice the publick peace to their own private ambition and not without the vast expence of innocent blood dispute which of them can best provide for the peoples safety Highly extoll'd by our Ancestors was that act of Antiochus who being driven out of a great part of his Empire by Scipio and confined to that only which lay beyond Mount Taurus gave hearty thanks to the People of Rome for easing him of so great a burden Val. Max. lib. 4. c. 1. and for contracting his Dominions within moderate bounds Of the very same mind seemed Jonathan to be willing rather to forego his right to the Crown than to destroy his Country with Civil Wars so that he might be but next unto David whom he loved as his own Soul 1 Sam. 23.17 It is said of Otho the Emperor that in his life he was as dissolute as Nero Plut. vit Othon ad finem but in his death as honourable as any of the Roman Emperors for rather than harass his own Country with intestine wars he chose to dye resolutely by his own hands Among those many grave Sayings bequeathed unto us by Lucan this in mine opinion is not the least Cantone novorum Proventu scelerum quaerunt uter imperet Vrbi Vix tanti fuerat Civilia bella movere Vt neuter Shall they my praises have Who seek by broils which shall the State enslave 'T had scarce been so much worth to expect whether As to provide by Civil Wars that neither But howsoever seeing that it much conduceth to the conservation of humane society that Titles to Empires should at length become fixt and undoubted Titles to Empirâ—s should be fixt and certain therefore whatsoever proofs though but conjectural shall be brought in reference to that end must be embraced with some grains of favour For if Aratus Sicyonius thought it severe to lose what for fifty years he had quietly enjoyed how much more was that of Augustus who esteemed him for a good man and a true Citizen The present state of Government not to be altered who would by no means alter the present State of the Common-wealth but as Alcibiades in Thucydides speaks would help to defend that form of Government which was then in being Of the same mind was Isocrates as appears by his Oration against Calimachus And so was Cicero who in his Oration against Rullus tells the people of Rome That it concerned him that would preserve peace to defend the present state of the Common-wealth whatsoever it was And Livy also who saith Lib. 35. that every good Subject ought to rejoyce in the present Government of publick affairs But if there be any thing defective in what I have here said yet against that presumption whereby it is believed that every man hath a will to preserve that which is his own there is another more strong that it is not credible that any man that would so preserve what is his should not in so long a time lay some manifest claim thereunto by some fit signification of his Will IX Dominion hath been transfer'd by possession immemorial But here it may be said and haply not improbably that this depends not upon a bare presumption but that it was a Law introduced by the voluntary Right of Nations that an immemorial and an uninterrupted possession without any claim or appeal made to Arbiters should be of force to transfer an undoubted Dominion And therefore when Phocaea was given to the Elders of Catana by the Graecian Emperors Gregoras tells us That there was a Law added that every of their Successors should declare in writing that they held it under the Title of Administrators lest by a long continued omission the right of the Emperour should be excluded For it may easily be admitted that what did so highly conduce to the publick peace and common benefit of mankind might by the consent of all Nations pass into a Law But this must be understood of an uninterrupted possession that is Lib. 35. as Sulpitius in Livy speaks Such a possession as is held by one and the same perpetual form of Right Lib. 34. always continued and never intermitted And as the same Livy in another place expresseth it A continued possession that was never controverted For if it be inconstant and desultory it avails nothing as the Numidians sometimes pleaded against the Carthaginians That sometimes the Numidian Kings and sometimes the Carthaginians held the possession as opportunities and advantages offered themselves to either of them and at all times he that was strongest held it longest X. Whether the Right of those unborn may be thus lost But a more knotty Question yet remains namely Whether the right of such as are unborn may by such a dereliction tacitely pass from them If we say it cannot then neither can a long uninterrupted possession add any certainty
to Dominion or Empire because there are few of them but some that are unborn may pretend a Title to If we say it may then will it seem as strong how silence can prejudice them that could never speak as having as yet no existence or how the fact of one man may damnifie another To resolve this we must know He that hath no visible being can have no right that he that hath no visible being can have no right as that which hath no existence can have no accidents wherefore if the people from whose will all right of Soveraignty did originally proceed may change their will surely they cannot be said to injure those that are as yet unborn seeing they have as yet no acquired right But as the people may change their will expresly so may they be believed to do it tacitely and therefore it being granted that the people have changed their will and that the right of those who are as yet unborn doth not exist but that the Parents of whom they may be born and who had a right in the mean time to have preserved it for them did relinquish it what should hinder but that what is thus deserted may be occupied by another Many examples we find in Histories of such Derelictions Many examples of Derelictions Mariana l. 13. c. 18. the most eminent is that of Lewis the Ninth of France whom we find renouncing for himself and his children all that right which by his Mother Blanch he might have claimed to the Kingdom of Castile And those renunciations which the Infanta's of Spain do usually make whensoever they marry to the Kings of France are of force to debar them and their Children from all pretensions to the Crown of Spain And thus much may suffice to be spoken of that right which is natural For by the Civil Law as many other Fictions so this also may be introduced that the Law may in the mean time sustain the persons of such as are unborn and may so provide that nothing shall be possest by any other to their prejudice as the Civil Law doth for the inheritances of Infants and Ideots But whether the Law will do it or not is not rashly to be presumed because what thus conduceth to the particular benefit of these may haply much endanger the Common-wealth There is no doubt but that such a right may be established by the Civil Law as cannot lawfully be alienated by any one act which notwithstanding for the avoiding of the uncertainty of Dominion may by the neglect of claim in some certain time be lost yet so that they that shall afterwards be born may have their personal Action against those by whose neglect they have lost their Right or against their heirs XI That the Title to Empires may be got or lost by Prescription By what hath been already said it is plain that a just Title may be gained by one King against another and by one free people against another not only by express consent but by dereliction and the occupancy following it creating as it were from thence a new Right or Title unto it For as to that general maxim Quae ab initio non valent ex post facto convalescere non possunt Those Titles which were originally naught cannot by any post fact be made good is to be understood with this exception unless some new cause do intervene which of it self is apt and able to form a new right And by this means that is by a manifest dereliction and a long possession he that is a true King may lose his Kingdom and become a Subject to the people and he that was really no King but a Prince may become an absolute King And that Soveraign Power which was once wholly in either King or People may at length come to be divided among them XII Whether Kings are obliged by those Civil Laws of Usucapion or Prescription But here it is not altogether unworthy our pains to enquire Whether the Law of Usucapion or Prescription having the stamp of the Soveraign Power may bind him also that made it or whether the very rights of Empires or their necessary parts which we have elsewhere explained are subject to this Law of Prescription and uninterrupted possession Some Civilians are of opinion that they are and those not a few especially of such as handle questions concerning Soveraign Empire according to the Civil Law of the Romans But we with some others are of another opinion Kings not always bound by their own Laws directly for that a man should be bound up by Laws it is required that in the Law Maker there should be both a power and a will at least strongly presumed so to do But no man can properly impose a Law upon himself as a Superior upon an Inferior for then the person commanding and the person commanded would be one and the same And from hence it is that he that hath power to make a Law hath also a power to change that Law and consequently not only to command according to Law but to command sometimes the Laws themselves for the general good And yet a King may stand obliged by his own Laws though not directly Though indirectly they may Vide infra Bo. 2. ch 20. §. 22. Sen. Epist 85. yet by reflection namely as he is a part of the Body Politick and so in natural equity ought to be conformable to the whole as Saul in the Infancy of his Reign is said to do 1 Sam. 14.40 So in a Ship the Captain sustains two persons one common with the rest being carried also along with them the other proper as he is Governor both of the Ship and those that are in it But here we look at the Law-giver not as apart but as one in whom the power of the whole is contracted For in this place we treat of Soveraign Power as such Neither is it easily to be believed that it was the will of the Law-maker to comprehend himself under the Law he makes unless it be where the matter and reason of the Law is universal as in the apprising of Commodities and the like For there is not the same reason that the Soveraign Power should be bounded and limited by the Law as other things are it being in dignity far above it for if we once admit it to be absolute and supreme we must also grant it some Priviledges and Prerogatives above and before others I never yet found any Civil Law that treated of Prescriptions that could with any probability be understood to include the highest powers Hence then we may conclude that neither the time limited by the Civil Law can suffice to acquire a Soveraign Empire or any of its necessary parts in case these natural Conjectures whereof we have here treated be wanting Nor is such a space of time required if within that time sufficient conjectures of Dereliction shall appear Nor lastly doth the Civil Law which forbids things
to be acquired No Prescription without strong conjectures of Dereliction can lye against a King as such ☜ within such a certain time at all appertain to the things belonging to the Supreme Power Yet might the people in the first Creation of the Empire have exprest their will by what means and in what space of time the Government by not using it should be lost which Will so exprest ought without doubt to have been followed Nor could it then have been infringed by the King himself though invested with Supreme Power because it appertains not to the Empire it self but to the manner of holding it as we have elsewhere explained it XIII What is not inseparable from Soveraignty may be got or lost by Prescription But what things soever are not essential to the Soveraign Power nor belongs unto it as its natural proprieties but may naturally be either separated from it or at least communicated with others are also subject to the Civil Laws of every people which are in force concerning Usucapion and Prescription So we read of some Subjects who have gained by Prescription that it cannot be appealed from them yet so that always some appeal may be made from namely by Petition or some such like way For that there should be no Appeal at all from any is not consistent with the condition of a Subject and therefore must needs appertain to Soveraignty or to some essential part of it nor can it otherwise be obtained than according to the Law of Nature to which the highest powers themselves are subject XIV That Subjects may at all times assert their own Liberty refuted Vasquius refuted Hence it is easie to discern how far forth we may admit of that which Vasquius and others maintain namely that Subjects may at all times endeavour if they can to recover that liberty which belongs to a free people because what was by force got may by force be regained And of that which at first proceeded from the will it is lawful to repent and to change the will for both that Empire that was at first gained by force may in time by the tacite consent of the people yielding thereunto a willing obedience receive a firm and established Right As also that will either at the first establishment of the Empire or by a postnate fact might be such as should give such a Right as should not afterwards depend upon that will It was an excellent Speech that Josephus records of King Agrippa to those Jews who from their preposterous endeavours to recover their lost liberty were called Zealots Intempestivum est nunc libertatem concupiscere olim ne ea amitteretur certatum oportuit To contend now for your liberty is unseasonable this ye should have done before ye had lost it To be enslaved to another is grievous the miseries of War are to be preferred before it But if being by the fortune of the War reduced into bondage ye attempt to free your selves Non amantes libertatis dicendi estis sed servi contumaces Ye will not be thought to affect liberty but rebellion So Josephus himself to the same Jews Honestum est pro patria pugnare c. To fight in defence of our Liberty whilst we have it is honest nay honourable but having long since lost it now to endeavour by Arms to recover it is to make our condition which was before tolerable De Cyri Inst lib. 3. now desperate Thus did Cyrus in Xenophon answer King Armenius who would fain have excused his defection by his earnest desire of his lost liberty yet notwithstanding I make no question but that a long continued patience in a King as I have above described may be sufficient for the people to recover their liberty upon a presumption of a Dereliction XV. Things merely in our power are not lost by Prescription Neither are those Rights lost by Prescription that are not exercised frequently but may be once at a time convenient as the right of redemption of things morgaged or given in pledge As also those Rights of our free liberty to do such other acts whereunto that act already executed is not directly contrary but is rather comprehended in it as a part is in its whole As in case a man hath entred into an Association with one of his Neighbours only and continued the same for an hundred years whereas he was at liberty to have done the like with others also within that time those rights of his liberty I say are not by Prescription lost until being prohibited to exercise it or compelled to forego it he obeys it and sufficiently signifie his consent thereunto which being congruous not only to the Civil Law but to natural reason may also be in force even amongst men of the highest fortunes CHAP. V. How a Right over Persons was originally gained Where also the Rights of Parents over their Children of Matrimony of Colledges or Societies of Kings over Subjects and of Masters over Servants are discust I. What Right Parents have over their Children II. This Right varyes with their Age Of Infants and what right they have over their Estates III. Of their Right over their Children being past their Infancy whilst they are in their Family IV. What coercive power Parents have over them V. What right they have to sell them VI. What right they have over them when out of their Infancy and Family VII Their power distinguisht into Natural and Civil VIII Of the Right of an Husband over his Wife IX Whether the tying up of one man to one woman inseparably be necessary to marriage by the Law of Nature or of the Gospel only X. By the sole Law of Nature the want of the consent of Parents nulls not a marriage XI By the Evangelical Law the marriage of anothers Wife or Husband is ipso facto void XII By the Law of Nature the marriage of Parents with their Children is void XIII So are marriages of Brothers and Sisters of the Mother-in-Law with the Son-in-Law c. by the Divine Voluntary Law XIV But of Kindred more remote it doth not appear that by that Law they are unlawful XV. Some of those Contracts which the Law calls concubinary may amount to marriages and be lawful XVI Some marriages though unlawful to have been done yet being done are lawful XVII Of the right of the major part of a Society XVIII Where the Votes are equal which part carries the Sentence XIX What Sentences are to be divided and what conjoyned XX. The rights of the Absent are devolved on those that are present XXI What order is used among persons equal even among Kings XXII Where diverse Societies claim unequal shares in the same thing their Votes shall be reckoned according to their respective parts in the thing XXIII Of the power that Cities have over their Citizens XXIV Whether Citizens may desert their City explained by distinction XXV No City hath power over her banished Citizens XXVI What power by
marry two Sisters successively or their Brothers or Sisters Daughters are only driven from the Clergy And as to the sins for which God is said to extirpate the Canaanites and their Neighbours the answer is easie For though the charge be general yet it may be restrained to some principal heads in the charge as to Sodomy to Carnal Copulation with Beasts with Parents Sisters other mens Wives c. And that other Laws were added but as Fences and Retrenchments to restrain men from violating these Laws as the Hebrews thought Other Marriages forbid to restrain men from contracting these For that it was not to be understood of every particular in that charge is sufficiently proved in that they were forbidden to have two Sisters as Wives at the same time which that it was not at the first made to all mankind the example and great piety of Jacob will not suffer us to believe whereunto may be added that of Amram the Father of Moses who married his own Aunt as did diverse others both among the Grecians and Romans And yet I cannot but commend the great modesty of the Primitive Christians The Primitive Christians exceeded the Jews in modesty who did not only of their own accord observe those Laws which were given in common to all Nations but those also which were given to the Jewish Nation only yea and did enlarge the bounds of their modesty beyond those degrees forbidden them that as in other vertues so in this also they might be seen to excel them And that this was done with a general consent will appear by the Canons of the Councils Common use and practice is of great power to commend or discommend any thing to humane sense saith St. Augustine speaking in dislâ—ke of the marriage of Brothers and Sisters which saith he now by Custome most Nations De Civit. Dei lib. 15. c. 16. though Heathenish do abhor And although those marriages are sometimes permitted by some wicked Laws yet hath a better Custome at length introduced an Abhorrence of them Now since this Custome hath so far prevailed as to curb and restrain this Licence to endeavour to infringe or corrupt this Custome is little less than Impiety For if it be unjust out of covetousness to remove the Land-marks of our neighbours grounds how much more unjust is it out of an inordinate lust to subvert so profitable and so laudable a Custome We have observed saith St. Augustine Ibid. how rare it is to see Brothers and Sisters Children to be joyned in marriage in these times of ours by reason of their propinquity in blood being the next in degree to Brothers and Sisters which though by the Law is lawful Concerning the marriage of Cousin Germans because neither Divine nor Humane Laws have yet forbidden it yet hath Custome introduced such a dislike of it that it is seldome done Factum etiam licitum propter vicinitatem horrebatur Illiciti That which is in it self lawful is prudently avoided for its vicinity to that which is unlawful whereunto he presently subjoyns That though it were the Religious Care of our Fore-fathers after two or three descents to renew their Allyances by Interchangeable marriages abstaining only after the world was sufficiently stockt with men from that of Brothers with Sisters yet who can doubt but that honestius hoc tempore etiam consobrinarum prohibita esse conjugia The marriage of Brothers and Sisters Children is now more modestly forbidden And that not only for strengthening our selves with new allyances but also by reason of a certain natural and commendable bashfulness which should restrain us from committing such libidinous acts with her of whom by reason of the nearness of blood we should have a reverend esteem as even conjugal modesty we see doth even blush to own And therefore Aeschylus calls the marriage of Cousin Germans such a Conjunction as the Law forbids because by this means the Stock is corrupted and tainted Now this natural Shamefacedness many Kings and Free People have by their Laws cherished and upheld The Emperour Theodosius as Victor reports did so highly esteem of it that he expresly forbad the marriage of Cousin Germans making but little difference between that and that of Brothers and Sisters Which Law St. Ambrose highly commends as being full of Piety Such another Law we find made by Arcadius and Honorius The like Cassiodore relates of the Goths who prudently following this example did reserve the priviledge of contracting marriages with Cousin Germans to their King only And yet we must still remember Not every thing that is done contrary to Law is presently made void Quod fieri non debuit factum vaâ— t. Can. 60. That not every thing that is forbidden to be done by Humane Laws being done is presently void unless it be so signified by the Law it self In the Council of Agatha among other prohibited marriages that of Cousin Germans also is mentioned whereunto it is added That the Council did not at that time so prohibit them as to dissolve those that had been made So Paulus the Lawyer saith That marriages without the consent of Parents was unjust but yet not to be dissolved So in the Eliberine Council it was decreed That if a man after the death of his Wife should marry her Sister and she be faithful he shall be debarred from the Communion five years thereby shewing that the band of marriage was to remain undissolved And by the aforesaid Canon of the Apostles it was likewise concluded That if a man did marry two Sisters successively or his Brothers Daughter he was only not to have been admitted into Sacred Orders but the marriage was not void XV. Some Concubinary Contracts may amount to marriage But that we may proceed to other marriages it is to be observed That some Concubinary Contracts may amount to true and authentick marriages although they may be deprived of some effects peculiar to marriages by the Civil Law or lose some effects that are natural by reason of some impediment arising from the Civil Law As for example the accompanying of a Bond-man with a Bond-woman was called by the Romans Contubernium a Consociation and not a marriage yet it had nothing wanting requisite to the nature of marriage And therefore in the Ancient Canons it is called by the name of Wedlock So the accompanying of a Free-man with a Bond-woman is not honoured with the Title of Matrimony but of Wedlock which by Imitation is since derived to other persons that are of unequal Conditions as that in Athens between a Citizen and a Stranger So Servius upon Virgil calls those Bastards that are born of obscure Mothers And yet even these servile conjunctions were in Greece Carthage and Apulia reckoned as marriages though the Hebrews would not honour them by that name nor legitimate them without the consent of those whose servants they were For so they expound that place of Exod. 21. Exod. 21. where mention is
an Intestate to whom it naturally descends Dominion being once introduced that which naturally guides the Succession to the estate of a person dying intestate setting aside the Civil Law is our conjecture at the Will of the deceased For seeing that the force of Dominion is such that it may be transferred at the will of the right owner unto another Therefore in case a man dyes possest of an estate leaving nothing to testifie his mind after his death because it is not credible that he would leave it to him that could next catch it therefore shall it succeed to him to whom it is probable he would have left it had he lived to have declared it Defunctorum voluntatem intellexisse pro jure est saith Pliny Junior To have understood the Will of the deceased is sufficient to create a Right Now to the dead this favour is indulged That in cases that are doubtful it is presumed That every man would do that which is most just and honest whereof in the first place is the payment of his just debts and in the next that which though not due yet is most agreeable to our duty And therefore what is committed to a mans trust may be restored saith Paulus the person dying Intestate that trusted it to those that succeed him because it may be believed That his Will was freely to leave the lawful Inheritance unto them IV. Whether Parents do owe unto their Children any part of their goods It is much controverted by Lawyers Whether Parents may be said to owe their children Aliment Some of them hold it to be agreeable to Natural Reason but deny it to be a Debt But we think it fit here to distinguish of the word Debt which may be taken either strictly for that which by Commutative Justice we are obliged to do or largely for that which cannot with honour or honesty be left undone as being a duty arising from another spring but not from that of Justice First Reason Now Aliment is due to Children if Humane Laws do not otherwise determine of it in this looser sense In which I conceive that of Val. Maximus is to be understood Our Parents by nourishing us hâ—ve laid this obligation upon us to nourish our Children And that also of Plutarch in that most elegant Oration of his concerning the Love of Parents towards their Children Liberi haereditatem ut sibi debitam expectant Our Children look for our estates as due unto them after our death So great was the Equity of this Lib. 2. de vita cler ser 52. ad frat in eremo Gratian. c. 13. q. 2. c. 17. q. 4. in fine Pers l. 1. Second Reason That St. Augustine would not admit that the goods of such as had exheredated their own Children should be received by the Church And as Procopius in his Persian Wars observes Though Humane Laws do in other things extreamly differ one from another yet all Nations as well Romans as Barbarians in this agree That Children should succeed to their Parents as the right owners of what they leave Again Qui formam dat dat quae ad formam sunt necessaria He that gives the form gives things necessary to that form saith Aristotle Therefore he that gives man his existence ought as much as in him lies to provide for him all things necessary for a Natural and Social life for hereunto he was born There needs no Law to bind us to this duty for all other creatures even by Natures instinct do feed their young As Pliny observes of Swallows That with great equity they feed their little ones by turns Summa aequitate alternant cibum Hence it is that the Ancient Civilians do refer the Education of Children to the Law of Nature And Euripides comprehends all Creatures under one and the same Law Which saith he is common as well to men among themselves as to them with all other sensible Creatures For that which Natural Instinct commends to them the same doth Reason prescribe unto us Of such force is Natural affection that it easily perswades us to nourish our Children saith Justinian Nature is an Indulgent Mistress to all living creatures equally instructing them how to conserve not only themselves but those that are born of them that so by this successive Charity she may aspire to make her self immortal Quintilian brings in the Son claiming a Portion of his Fathers Estate by the Law of Nations Partem jure gentium pâ—to And Salust condemns that Testament as impious and unnatural by which the Son is excluded from his part of the Inheritance And because this is a debt that we owe to Nature therefore is the Mother bound to nourish the Child that hath no certain Father The Roman Laws made no provision for Bastards And though the Roman Laws made no provision for Children ex damnato legibus Concubitu that were illegitimate and that by Solons Laws it was provided That no man should leave any thing to his Natural Issue yet do the Canons of our Religion correct the severity of these Laws by teaching us That our Children however begotten by us should be a part of our care and that in case it be needful Beyond necessaries no man bound to provide for them we ought to leave them enough to preserve that life which we gave them but beyond necessaries is no man bound by the Law of Nature to provide for them Neither are we bound to nourish our Sons only but those also that proceed from them yea even to the third generation according to Justinian and that for humanity sake Neither should our Charity rest here but it should extend it self even unto those who issue out of our Loins and are born unto us by strange women if they cannot otherwise be maintained V. In Succession the Children of the deceased are to be preferred before their Parents and why Children ought also to nourish their Parents not only in obedience to many wholsome Laws but in common gratitude like the Storks who when their Parents are spent with age feed them and being faint receive them on their backs and carry them from place to place And therefore in fostering those who when we were Children fostered us we are Proverbially said To imitate the Stork †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Reverence to Parents and sustenance to Children Nic. 8. Solon is highly commended for setting a brand of infamy upon those that did it not Yet is not this so ordinary as that which we have said of Children Because Children when they are born bring nothing into the world with them whereby to live and have probably a longer time to live here than their Parents have And as honour and obedience is properly due to Parents and not to Children So is Sustentation due rather to Children than to Parents And thus is Lucian to be understood when he tells us That it is more agreeable to the dictates of Nature for
they 're left forlorn And yet may those also be adopted Sons if the Laws forbid not as it was anciently permitted among the Romans by the Laws of Anastasius But afterwards in favour to lawful Marriage there was a more difficult way found to make Bastards equal to such as were Legitimate namely by the free offer of the Court when they say cause or by the subsequent Marriage of the Mother of the Child Thus did old Jacob adopt his Natural Son s making them equal to his Legitimate and giving them equal shares in his Inheritance But the contrary may sometimes happen not only by the prohibition of the Law but even by agreement when it is agreed on by both parties before That they that are to be born by that Wedlock shall receive only Aliment but no part of the Ancient Inheritance And such a Marriage the Hebrews call Concubinary although made with a Free-woman Such was that of Abraham with Keturah called therefore his Concubine Gen. 25.6 whose Children together with Ishmael the Son of Agar his Bond-maid are said to have received gifts that is Legacies but no part of the Ancient Inheritance So it was anciently among the Mexicans who gave all to the eldest son but nothing to the rest but sustenance only And not much better are second Marriages in Brabant where the Children by the second Venter have no Propriety in the Estate which the Father held at the death of his former Wife The like Law we find among the ancient Burgundians IX If a man dye Childless and Intestate to whom shall the Estate descend The Fathers Estate to his Relations the Mothers to hers The ancient Estate to be continued in the same Tribe If a man dye Childless and withal Intestate on whom the Succession should descend is not easily to be determined There being no one thing wherein the Laws do more differ All which differences may notwithstanding be reduced under two Heads whereof the one hath respect to the nearest of kin the other to the several Spring-heads from whence it descended That which came by the Father to his Relations and that which came by the Mother to hers But here we must distinguish between the ancient Inheritance and that lately purchased That of Plato must be understood of the former Ego Legum conditor c. I being a Law giver saith he do ordain That neither your Persons nor Patrimonial Estates are in your own power fully but your stock and lineage have a Right thereunto as well they that now are as they that are to come Whereby it seems that Plato would have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Ancient Inheritance preserved intire for that Tribe or Kindred by which it came Which I would not have so to be understood as though it were not naturally lawful to dispose of any goods that descend unto us from either Parents or Ancestors otherwise For sometimes to relieve the wants of a Friend who hath well deserved of us is not only commendable but necessary But that in a case ambiguous it may appear what we ought to believe the will of the Intestate was For we take it as granted That he that dies hath at his death a full Right to dispose of his Estate But since it is impossible for him to retain this Right being dead and that it may be presumed That he would not altogether lose that Right whereby he might gratifie his Friends It concerns us to enquire in what order this benefit should naturally descend Wherein that of Aristotle is most rational Potius est gratiam referri ei qui benefecit quam amico conferre beneficium That it is better to return thanks to our Benefactor than to oblige new Friends For as Cicero saith truly There is no duty so necessary as that of Gratitude Our Benefactors are first to be gratified and then our Friends obliged For since Liberality hath but two Branches whereof one is to do good the other to repay good the former we may do if we will but the latter we must do if we would be honest and can do it without injuring any So St. Ambrose It becomes every man to have a greater respect unto him from whom we have received a Courtesie than unto others And presently after What can be more against our duty than not to return what we have received Now our Gratitude is exprest either to the living or 〈◊〉 the dead as Lisias observes in his Funeral Oration It is shewed in doing good to their Children being naturally the surviving parts of them and unto whom their parents if living would have been most beneficent In me conferes quicquid in liberos meos contuleris saith the Fisher-man in Procopius Procop. Pers 1. who was about to adventure his life against a Dog-fish to gain a very great Pearl for the Emperour Cosroe That is the best Gratitude that is shewed to the dead For what O Emperour thou shalt confer on my Children if I perish thou bestowest upon me And according to this rule did they walk who framed the Justinian Laws in that question concerning whole and half Brothers and in that concerning Cousins in Blood and in some others Brothers saith Aristotle do love each other being born of the same Parents Ortus communis ipsos quasi eosdem facit One common blood whereof they are made makes them almost one and the same Whence frater is quasi fere alter A Brother is but almost another or as one cast in the same mould For as the highest bond of Love is deservedly that which Children owe their Parents Val. Max. lib. 5. c. 5. from whom they receive the most and the greatest benefits as their lives and livelihoods So the next is that of Brethren to each other as having received the same benefits together from the same Parents And therefore for Brethren dying Childless and Intestate to succeed one another is according to Justin the Common Right of Nations But in case he from whom the goods last descended be not to be found nor any of his Children it remains that the thanks be paid to them to whom though not so much yet next after him they are notwithstanding due namely to the Parents of the next degree above him and to his Children Especially seeing by this means it may be continued between the Kinsmen both of him whose inheritance it was and of him from whom the said goods first descended So the same Aristotle Cousin Germans and the rest of our Kinsfolks are linked together by their Parents as being born of one common stock yet so as some are more nearly allyed than others according to their respective birth Thus by the Law of Moses the Unkle succeeded after the Brothers as being nearer unto the first Owner than the Brothers Children Numb 27.10 11. X. An estate lately gained to the next of kin But as to that part of the estate that is but lately acquired because there lyes no obligation of thankfulness
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
before Blanch the elder Sister of the same King But this as Mariana notes was done in hatred to the house of France into which Blanch married â—XXV The Neece from the elder Son preferred before the younger Son That which he adds as seeming to him most probable namely That the Neece from the elder Son excludes the younger Son cannot hold in hereditary Kingdoms although Representative Succession be there in force For that gives only a capacity to succeed But of those that are capable regard is to be had to the priviledge of the Sex XXXVI The Sisters Son preferred before the Brothers Daughter And therefore in the Kingdom of Arragon the Sisters Son was preferr'd before the Brothers Daughter And as Mariana observes It is credible that in that Kingdom in times long since past The Kings Brother and not his Daughter had the Right of Succession But afterwards they were so well pleased with a Lineal Succession that they preferred the Sisters Son before those that in a more remote degree descended from the Brother And in another place speaking of Alphonsus he saith That unto the Inheritance of the Kingdom of Arragon after his Son Ferdinando he appointed his Nephews by his Sons and for want of such then the Nephews by his own Daughter were to be preferred before the Daughters of the said Ferdinando Whereunto he adds Sic saepe ad Arbitrium Regum jura regnandi commutantur They are Titles to Kingdoms oft-times fann'd about by the breath of Kings XXXVII Whether the Daughter of the elder Brother be to be preferred before the younger Brother After the same manner In Kingdoms that are hereditary the Daughter of the eldest Son shall give place to the Kings younger Brother CHAP. VIII Of Dominion vulgarly said to be acquired by the Law of Nations I. Many things are attributed to the Law of Nations which to speak properly are not thereby due II. Fish and Deer in Ponds and Parks are by the Law of Nature held in Propriety contrary to what the Roman Laws deliver unto us III. That Wild Beasts straying out of Inclosures cease not to be the first owners if they may be known IV. Whether the possession of them may be gained by Instruments as by Nets and how V. That such Wild Beasts should be the Kings is not contrary to the Law of Nations VI. How the possession of such things as have no owner may be gained VII Mony found whose it is naturally and of the diversity of Laws about this VIII That those things which by the Roman Laws are delivered unto us concerning Islands and Increments are neither Natural nor from the Law of Nations IX That Naturally Islands in Rivers and the Channel being dried up are theirs whose the River or that part of the River was that is the peoples X. That Naturally the Propriety of a ground is not lost by an Inundation XI That Increments if in doubt are the peoples XII But they seem to be granted unto those whose grounds have no other bounds but the River XIII The same may be presumed concerning whatsoever the stream leaves dry XIV What is to be accounted an Increment and what an Island XV. When the Increments belong unto Vassals XVI The Arguments whereby the Romans would prove their Law to be as it were Natural answered XVII That a way is naturally an Impediment to Increments XVIII That it is not Natural That the Child should follow the condition of the Mother only XIX That Naturally a thing may be made Common as well by giving a Form to another mans matter as by confusion XX. Yea though that matter be ill wrought XXI It is not Natural that the lesser part should yield to the greater by reason of its prevalence where also are observed other Errors of the Roman Lawyers XXII Naturally by planting sowing or building upon anothers ground there ariseth a community to both in the Fruits perceived XXIII He that sows anothers ground by mistake may require his Charges but not the Fruits XXIV Yea though he doth it knowingly XXV That Naturally Tradition is not necessary to transfer Dominion XXVI The use of what hath hitherto been said I. That many things are said to belong to the Law of Nature that properly do not NOw our Method leads us to treat of that Dominion which is vulgarly said to be acquired by the Law of Nations which being distinct from that gained by the Law of Nature we have therefore termed the voluntary Law of Nations Such is that Dominion which is got by the Right of War But of this we shall discourse better hereafter where the effects of War shall be explained The Roman Lawyers where they treat of the gaining of the Dominion of things do reckon up many ways whereby it may be acquired which they seem to justifie by the Law of Nations But to him that diligently examines them there is hardly any except that gained by War that will appear to be gained by that Law of Nations whereof we now speak But are either such as are to be referred to the Law of Nature not that which is meerly so yet to that which follows close upon it Dominion being first introduced and so antecedes all Civil Law or they are such as may be referred to the very Civil Law not that of the sole people of Rome but of many other Nations Which I rather believe because this Civil Law or Custome came originally from the Greeks whose Institutes as Dionysius Halicarnassensis observes with some others all Italy and some other adjoyning Nations followed But this is not the Law of Nations properly so called For it serves not to conglutinate all Nations mutually among themselves but rather to preserve peace and tranquillity between the Subjects of every Nation And was therefore alterable by any one people without consulting the rest so that it may also come to pass That in other places and in other ages a far different common custom and so another Law of Nations improperly so called may be introduced Which we have found really done as soon as the German Nation had invaded all Europe For as of old the Graecian Laws so then the Germans were almost every where received and do as yet flourish The first way of gaining Dominion by the Law of Nations as the Romans call it is by the primary seizure or occupancy of such things as have no owner which without doubt is natural in that sense which I have declared that is Dominion being first introduced and so long as no Law did otherwise determine For Dominion may also be gained by the Civil Law II. As Fish in Ponds Deer in Parks And hitherto in the first place we may refer the taking of Wild Beasts Birds and Fish But how all these may be said to belong to none will afford matter of debate Nerva the Son was of opinion That Fish if in a Pond were possest but not in a great Lake And that Wild Beasts if in a Park or
own VIII Of Islands and Inundations Let us now proceed to Inundations or Increments by Rivers whereof the ancient Lawyers have written much but the Modern whole Commentaries But what they have written is for the most part grounded not on the Law of Nature but on the Laws of some Nations though to gain the greater authority they oft-times put them off under that name Most of their determinations being built upon this foundation That the banks of the River are his who possesseth the adjoyning soil and that the Channel as soon as it is forsaken by the waters is his also and consequently those Islands which are cast up in the River There they distinguish of Inundations a small one alters not the property of the ground but a great one doth yet so that if it come by reason of some sudden and violent force of waters and so recede the ground overflown shall upon the return of the waters as if by postliminy remain to its right owner But if by a continual beating upon it it wash it away by degrees it is lost for ever Now that all these might be introduced by some Law to make men more carefully to defend their own banks I deny not but that they be so by a Natural Right as they would have it I cannot grant IX Whos 's they are naturally See above ch 3. towards the end For if we respect that which mostly happens the soyl is first possest by the people and that not only under a Soveraign power or Empire but under dominion also before the Fields were distributed among private persons The boundaries of the Athenians or Campagnes saith Seneca are those whereby their Fields which before lay in common are by private agreement between themselves and their Neighbours distinguished So also Cicero Privata natura nulla sunt De benef l. 7. c. 4. De Off. lib. 1. There is nothing naturally private but either by primary possession as they that first set footing in a place that is desart or that which comes by conquest or by Law consent condition or by Lots whereby it comes to pass that the fields about Arpinum are said to belong to the Inhabitants of Arpinum and the Fields of Tusculum to the Inhabitants of Tusculum And thus is every private mans estate described Or. Rhodiaca So Dion Prusaensis There are many things which a City in general challengeth as her own though they are divided by parcels amongst private Lords After the same manner speaks Tacitus of the Germans That their Fields were first occupied by the people in common by Villages according to the number of the Inhabitants and afterwards distributed among themselves according to every mans reputation and dignity Wherefore whatsoever was thus originally possest by the people and never afterwards distributed doth as yet properly belong unto the people And as in private Rivers those Islands which the waters cast up and that part of the Channel which the waters forsake are properly his who owns the River so in publick are both of them the peoples or his to whom the people hath given them Now what is here said concerning the Channels may also be said of the Banks which are but the extreme parts of the Channel wherein the River naturally runs and thus it is every where taken In Holland and the Countries adjacent many such disputes did anciently arise by reason of the lowness of the ground the greatness of their Rivers and their nearness to the Sea receiving and casting up by alternate tides mud and sand Those that were Islands truly so called were always adjudged to be part of the peoples patrimony as also the whole Channel of the Rhine and of the Mase which the Waters have left as it hath been frequently determined and with very good reason For as the Roman Lawyers themselves do grant Of Floating Islands see Sen his Nat. Quest lib. 3. c. 25. Pliny lib. 2. c. 95. that the Islands which float in a River being upheld by the young sprouts that grow in it of right belong to the Common-wealth because Cujus juris est flumen ejus est insula in flumine nata Whose the River is his is the Island that is in it And surely there is the same reason for a River as for the Channel wherein it runs not for the reason which they bring namely because the Channel is covered by the River but for the reason aforesaid because it was originally possest with the River and was never since transferred into any private mans dominion Neither can we admit of that as true naturally which they averr that if the Fields be bounded the Islands are the first Occupants for that indeed were true in case that neither the River nor with it the Channel were at all possest by the people for then they were like those Islands which are raised in the Seas his only that did first seize them X. That naturally the Land is not lost because drowned Neither is that more to be admitted which they write of a great Inundation namely that it gives away the property of the Land overflowed if we respect only natural reason For admit we do grant that the superficies of the Land may be dissolved into Sand yet do the lower parts thereof remain firm and solid and though somewhat of the quantity be changed yet is not the substance changed at all no more than that part of a Field is which is devoured by some Lake the property whereof as the Roman Lawyers themselves do rightly acknowledge doth still remain Neither is that natural that they write that an Inundation performs the office of a Judge or Censor making that private which was publick and that publick which before was private as Cassiodore speaks of a surveyor More vastissimi fluminis aliis spatia tollit aliis concedit That he was like a great River taking away from some that which of right was theirs and giving unto others that wherein they had no right Much better were it to follow that which Strabo reports of the Egyptians To take an exact survey of the Fields and so divide unto every man his own by Admeasurement Because the River Nilus by her frequent floods and rapid streams adding here and taking away there and changing the form and marks of the Fields doth so confound their bounds and limits that it is hard for a man to distinguish between his own and another mans therefore are Fields to be often surveyed Whereunto agrees that tradition of the Roman Lawyers Quod nostrum est nostrum esse non desinit nisi facto nostro That which is ours ceaseth not to be ours without our own fact or by some Law Where the Invudation is very great and no visible sign that the owner endeavours to recover what is to be done Now under things done are morally comprehended things left undone as we have said already that is to say so far forth as we may thereby guess at
ground whose parts are the Soyl and the Superstructure and in which were it moveable the Lord of the Soyl could have no right at all Of which opinion was Scaevola XXIII The Possessor cannot claim the fruits but may his charges He that ignorantly sows another mans ground thinking it to be his own cannot by the Law of Nature appropriate all the fruits thereof to himself but he may charge the owner of the ground with his costs and with his profitable labour and pay himself out of the profits either already perceived or retain those that are extant if he cannot otherwise get satisfaction XXIV Yea though he possess it unjustly And the very same it seems may be said of him that is possest of another mans Estate unjustly where no penal Law interposeth For though he thaâ— possesseth mine Estate be an intruder or an Vsurper saith Paulus the Lawyer yet ought I to satisfie him for his just expences For he that seeks only to recover his own ought not to enrich himself by the loss of another XXV That naturally the delivery is not requisite to transfer dominion The last means of acquiring dominion by the Law of Nations is by Tradition But as I said before this is not required to the transferring of dominion by the Law of Nature which the Roman Lawyers themselves acknowledge in some cases As when the property of any thing is given away but the profits of it reserved or when it is bestowed on him that may hereafter possess it or when being but lent it may be kept and in such like cases Yea and even now a man may in some cases transfer Dominion to another before he hath gained possession himself As of an Inheritance expectant of Legacies to be received of things given to Churches and to pious places or to Cities c. whereof it may be said Then the delivery of possession seems to be good when the deeds of gift are in a mans own possession Godwin 's Rom. Ant. p. 240. And thus did the ancient Romans use to aliene things sold by striking the Scales with a piece of Brass and then giving it to him that made the sale XXVI What use may be made of what hath been said These things have I observed lest any man finding among the Roman Authors the Law of Nations often quoted should presently understand that Law to be such as could not be changed But rather that he should be able to distinguish between such Laws as are purely natural and those that are for some certain state natural and between such Laws as are in force amongst many Nations apart and such as knit together all humane societies And this likewise is to be observed That if either by the Law of Nations improperly so called or by the Law of any Nation or People any one way of acquiring a Right or Property be agreed on without making any distinction between Natives and Strangers there Foreigners also shall have and enjoy the same Right And in case they shall be hindred in the consecution thereof they have such wrong done them as may give occasion to a just War CHAP. IX How Empire and Dominion may Cease and Determine I. Dominion and Empire determine when he that had the Right dies and leaves no Successor in being II. So the Right of a Family dies when that Family is extinct III. The like of a People when they cease to be a free people .. IV. Which falls out when their necessary parts are taken away V. And when the whole Body of a People are swept away VI. And when their Form is lost whereby they become a People VII But not by the change of Place VIII Nor upon their change of Government where also is discust what place a new King or free People are to take in general Assemblies IX What if two People be united X. What if a People be divided XI In whom now are what once belonged to the Roman Empire since there appears no Alienation XII Of the Right of Heirs XIII Of the Right of Conquerors I. When the owner dying leaves no Successor HOw as well Propriety as Empire were at first introduced and how they may be transferred is sufficiently discust Now let us understand how they may end And first that they may determine by a voluntary dereliction hath been already demonstrated For Cessante voluntate non manet dominium Where the Will disclaims Propriety vanisheth Again they may cease when the Subject wherein they are is taken away before any Alienation be made of them either express or presumptive as in Successions from him that dyes intestate and leaves no Kindred behind him wherefore all the right that he had in any thing dyes also with him Wherefore his Servants unless the Laws do otherwise ordain are immediately free and the people that were in subjection to him are at their own liberty because these are not in their own nature occupyable but as they are willing to surrender themselves but all his other goods are naturally his that hath them II. So of a Family The very same holds true if a Family happen to be extinct whatsoever right it had ceaseth with it III. When the people that were free cease to be so So also if a People fail Isocrates first and from him the Emperour Julian tells us That Cities are immortal meaning that so they may be because the people are a Body consisting of Members remote one from another yet united under one name as having but one order or form of Government as Plutarch calls it or one Spirit as Paulus the Lawyer which animates and informs all the parts of it and is therefore as Aristotle terms it the life of it But this Spirit in the people is a full and perfect consociation tending to a civil life whereof the supreme power is the first product This is the bond that knits all the parts together the Vital Spirit as Seneca terms it Quem tot millia trahunt Lib. 1. declementia cap. 4. Ep. 58. which animates so many thousands at once for plainly the Artificial Bodies have some resemblance with the Natural The Natural Body though it every day wastes a little yet whilst that which wastes is every day repaired and the same form or figure continued ceaseth not to be the same body And therefore that of Seneca where he saith That no man is the same being old as he was when he was young may very fitly be interpreted as if understood of the matter only As also that of Heracleus in Plato verified That no man can descend twice into the same River Which Seneca thus expounds Manet idem fluminis nomen aqua transmissa est The Name only continues but the Waters glide away Pol. 13. c. 2. So Aristotle comparing a River to the people saith That the River is still called by the same Name though the Waters are not the same Neither doth it retain its name in vain for it hath the same
the Roman Legions They have conferred the Empire on me the defence whereof O Fathers Conscript I do in the mean time undertake and if it be as pleasing to you as it hath been unto them I shall also undertake the Government So also doth the Emperour Tacitus in Vopiscus Me saith he hath the Senate made their Prince according to the prudent advice of the Army To the like purpose is that of Majorinus to the Senate Remember that I was made Emperour as well by your own Free Suffrages as by the appointment of your puissant Army The Roman Empire as Maximinus in Herodian tells his Soldiers is not the possession of any one man but the Ancient Inheritance of the whole people of Rome upon whose safety the Empire depends And we together with you are to this purpose chosen that they through our Care and Courage may live securely Neither doth it avail to the contrary to say That by the Constitution of Antoninus the Emperour all that lived within the Verge of that Empire were made Roman Citizens For by that Sanction all the Subjects of that Empire were only made capable of such rights and priviledges as the Roman Colonies and such other Towns and Cities anciently had For Rome over all her Colonies appeared as a Lady or a Queen Zon. that were made free namely that they might use the same Laws and be governed by such Magistrates as the people of Rome had But the Foundation of the Empire was not so in any other people as it was in the people of Rome for this was not in the power of the Roman Emperors to grant who could neither change the state of the Empire nor its manner of holding it Neither did it at all detract from the right of the Citizens of Rome that their Emperours changed the place of their residence from Rome to Constantinople The change of the Imperial Seat did not change the Empire For even then also was the choice of their Emperours made by such of the Roman Citizens as were resident at Constantinople whom Claudian calls the Byzantine Romans yet so as that choice was to be confirmed by the whole body of the people of Rome who like Princes jealous of their own Soveraignty alwayes preserved the prerogative of their City and the honour of their Consuls The Empire continued in the people of Rome though the Emperor resided at Constantinople the first whereof did constantly reside at Rome as the Trophies of their own incommunicable right wherefore all that right which those Byzantine Romans pretended to have in those Elections depended wholly on the people of Rome Nero in the fourteenth of Tacitus his Annals accuseth his Mother for endeavouring to divide the Empire with him by swearing to her self the Praetorian Bands and for hoping to put the same reproach upon the Senate and people Whereas as Priscus notes the Soveraignty of the Roman Empire appertained not to women but men For after the death of Heliogabalus it was especially provided that no woman should ever after be admitted into the Senate and that he that should do it should be accursed to Hell And it was observed by Tribellius as a matter of reproach That Zenobia usurped the Empire and governed the Common-wealth longer than was fit for a woman to do it When the Byzantine Romans contrary to the mind and custome of the Romans had subjected the whole Empire to the Empress Irene they deservedly revoked that Grant which they had either expresly or tacitly given them and by their own power chose Charles the Great The Bishop of Rome the Principal Citizen in the Vacancy of the Empire Emperour which they publickly declared by their chief Citizen the Bishop of Rome For so also was the High Priest among the Jews alwayes accounted during the vacancy of their Kings Now Charles the Emperour and his Successors did always very prudently distinguish between the right they had to the Kingdoms of the Francks and Lumbards and the right they had to the Empire the former being their Ancient Inheritance the latter being entrusted unto him upon a new account but afterwards the Kingdom of the Francks being divided into the Western which is now called France and the Eastern which is Germany or Almany seeing that the Oriental Francks did then begin to set over themselves Kings by Election for even at that time the succession to the Kingdom of the Francks being as it were Aquatical depended not so much upon any certain Law as upon the choice of the people The Romans that they might enjoy a most assured protection chose not a King of their own but him whom the Germans had admitted for their Emperour yet still reserving unto themselves the right of either approving or rejecting him so far as concerned their own affairs And this approbation is in their name solemnly witnessed by their chief Citizen the Bishop by a peculiar Coronation Wherefore as he that is admitted or elected by the seven Princes of Germany being the Representatives of the whole Nation hath according to their customs the best title to the Empire So is the same person by the approbation of the people of Rome made King or Emperour of the Romans or as Historians sometimes call him King of Italy As in the excommunication of the Emperour Henry the Pope makes express mention of the Kingdoms of Germany and Italy and in the Oath that the Pope administred unto the Emperour Otto as Gratian records the Emperour swears That he will make no Decree or Ordinance concerning any thing belonging to the Pope or to the Romans without his Counsel So that the Emperour under the Title of being King of the Romans hath a right unto all that did formerly belong unto the Roman Empire that hath not been otherwise alienated or granted away either by agreement or by occupancy upon a presumption of being deserted or by the right of Conquest From whence it is an easie matter to determine By what righâ— the Pope in the Vacancy delivers the Ornaments of the Roman Empire to the Emperouâ— of Germany by what right the Bishop of Rome in the vacancy delivers to the succeeding Emperour the ornaments of the Roman Empire namely because at such time the people being free the Primacy belongs to him And it is usual for Bodies Politick to dispatch all their affairs by the chief person in the name of the whole So that as the Prince Palatine and the Duke of Saxony do deliver the Royal Diadem to the Emperour Elect thereby giving him possession of the German Empire So doth the Bishop of Rome in the name of all the Romans give unto the same person being by them approved the ornaments of the Roman Empire So it is also in Poland the Arch-Bishop of Guessne during the vacancy The Arch-Bishop of â— Guessne in Poland sits on the Royal Throne and administers the publick affairs of the Kingdom as being of all the Orders the chief Neither is
that our Saviours words signifie no more than what Philo's the Jew did It is an excellent thing saith he and most agreeable to Rational men De Decal so to accustom themselves to speak truth That their bare words may carry as much authority as other mens Oaths And in another place he saith That a good mans word is as firm immutable and void of deceit as if he had confirmed it with an Oath So likewife Josephus testifies of the Esseni That whatsoever they affirmed upon their words was as true as if they had affirmed it upon their Oaths And therefore to swear was unto them superfluous And from these Esseni or from those Jews that followed them Pythagoras seems to have learnt it where he saith We must not swear by the Gods but every man sbould be so careful of his word and credit that he may be believed without an Oath It was the advice of Chrysostome If thou dost believe that he with whom thou hast to deal De stat 15. is honest and faithful urge him not to swear but if thou suspect him for a lyar urge him not to forswear The Scythians in Curtius told Alexander That it was not the custom of the Scythians Gratiam jurando sancire to purchase his favour or establish their own peace by Oaths For saith Curtius Colendo Fidem Scythae jurant The Scythians are so great admirers of truth and Fidelity that their bare words do oblige them as firmly as and their deeds confirm their promises more than their Oaths Cicero in his Oration for Roscius Comoedus tells us that look what punishments the Gods awarded to a perjured person the same they awarded to a Lyer For it was not the form of words wherein the Oath was comprehended that provoked the Gods unto vengeance but the malice and perfidiousness of the heart wherein all Treacheries and forgeries are minted It is excellent Counsel that Solon gives us That we should have so great a regard to our own honesty that our words may be as Authoritative and convincing as our Oaths Thus Clemens Alexandrinus describes a just man to be one that evidenceth the truth of his promises by the sincerity and constant stability of his words and actions Cicero records it of a certain Citizen of Athens that being known to be of a Religious and upright conversation Orat. pro Baldo and being to give his publick testimony upon Oath was not permitted so to do but as he approached near the Altar to that purpose all the Judges with one voice cryed out That he should not swear being unwilling to give more credit to his Oath than to his word Very pertinent to the meaning of our Saviour where he saith Swear not at all is that saying of Hierocles He that in the beginning said Thou shalt reverence an Oath did therein enjoyn us to abstain from swearing concering such thing as are contingent and of uncertain events For such things are so mutable and of so small an account that they are not worth an Oath neither is it safe to swear about them And Libanius inserts this amongst many other Vertues for which he highly extols a Christian Emperor That he was so far from Perjury that he feared to swear to what he knew to be truth A perjurio tantum abest ut etiam vera jurare vereatur XXII Faith may be given without an Oath Therefore in some Nations instead of Oaths they give unto each other their right hands which among the Persians is the strongest assurance of Faith that can be given And amongst other people they oblige themselves by other signs and that so strongly that unless he that shall so oblige himself do fulfill his promise he is held as execrable as if perjured But especially of Kings and Princes it is usually said that their faith given is as good as an Oath For such they should be that they may say with Augustus Bonae fidei sum I have a clear Reputation And with Eumenes I had rather lose my life than break my Faith Whereunto Gunther alludes where he saith No Oath more Sacred than the word of Kings Whereunto we may add that of Alexis Comicus If I but nod 't is firm as though I sware This testimony Isocrates gives of King Evagrius That he kept his word as Religiously as he did his Oath Cicero in his Oration for King Dejotarus highly commends Cajus Caesar for this That if he gave to any man his right hand it was sufficient to confirm any Promise that he made whether in Peace or War And in those Heroick times The elevation of the Royal Scepter was equivalent to the Oath of a King as Aristotle notes CHAP. XIV Of the Promises Contracts and Oaths of Soveraign Princes and States I. The opinion of some who hold that Restitutions to the full arising from the Civil Law appertain to the acts of Kings as such refuted as also this that Kings are not bound by their own Oaths II. To what Acts of Kings the Laws extend explained by distinction III. When a King is bound by his Oath and when not IV. How far forth a King is bound to what he hath promised without cause V. The use of what hath been said concerning the force of the Laws about the Contracts of Kings VI. In what sense a King may be said to be obliged to his Subjects by the Law of Nature only or even by the Civil Law VII A Right gained to Subjects how it may lawfully be taken away VIII The distinction of Things gained by the Law of Nature and by the Civil Law rejected IX The Contracts of Kings whether they be Laws and when X. How by the Contracts of Kings they that inherit all his Goods stand bound XI How by those Contracts they that succeed in the Kingdom may stand bound XII And how far XIII The free Grants of Kings when revocable and when not XIV Whether the true Kings be bound by the Contracts of them that invade or usurp the Kingdom I. Whether Kings may rescind their own Acts. THe Promises Contracts and Oaths of Kings and of such others as have the like Soveraign power have some questions peculiar to themselves as well concerning what power they have over their own Acts as concerning what they have over their Subjects as that which they have over their Successors As to the first of these it is questioned Whether the King himself hath the same power to restore himself to the full or to make void his own Contracts or to absolve himself from his Oath as he hath his Subjects Bodine was of opinion that a King being circumvented by another mans fraud by fear or error may for the same causes be restored to his own Rights as well in things appertaining to the lessening of his Prerogative as a King or in things appertaining to his private Estate as his Subjects may Whereunto he addes That a King is not bound by his Oath if the Contract agreed
on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Greeks do commonly understand Righteousness and by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
notwithstanding is not he that negotiates the publick affairs to be strictly tyed up to this rule as some hold so that his act shall then only be held firm and ratified when the Common-wealth is meliorated by it For to reduce a Prince to such straits would be dangerous to the Commonwealth Neither is it likely that when the people transferr'd the Government upon him they intended so to retain him But what the Roman Emperors answered in the cause of their City That what was transferred by the Magistrate ☜ should be of force in doubtful matters but not when that which is clearly due to the City is rashly given away or forgiven the same answer may and ought to be given to this question in the behalf of the whole body of the people observing a due proportion For as it is not every Law that obligeth Subjects for besides those which command things unlawful some Laws are evidently absurd and foolish as that Law of Cabades King of Persia recorded by Procopius and Agathias Neither is it congruous to reason as Peter Ambassador of Justine the Second told Cosroes King of Persia treating about some things which Justinian seemed long before to promise to the Saracens That a Common-wealth should forever be condemned for one simple Law or custome introduced or enacted by one man although an Emperor So also the Contracts of Princes do bind their Subjects if they have any probable reason to justifie them which in doubtful cases ought to be presumed in respect of the wisdom and authority of those that made them And it is much safer thus to distinguish of them than as some do by the greater or lesser damage that ariseth to the Commonwealth by them For we are not so much to regard the event of such Contracts as the reasons whereupon they were grounded which if probable the people shall be bound by them if by any accident they shall begin to a be free people and so shall they that are Successors as being for the time the heads of the people For if the people being free shall make any Contract or agreement their Kings that shall afterwards Reign shall thereby be bound although he receive the Kingdom in the fullest Right The Emperor Titus is highly commended for this That he would not endure to be sollicited to confirm any thing that his Predecessors had granted thinking it but reasonable That if he expected that his Successors should be bound by his acts he also should be obliged by the acts of their Predecessors Suet. c. 8. The Grants of good Princes shall bind their Successours Whereas Tiberius and they that succeeded him did never hold the Grants of his Predecessors to be good unless they themselves had granted the same to the same persons That excellent Emperor Nerva following the example of Titus in that Edict recorded by Pliny speaks thus Let not any man conceive That what he hath got from any of my Predecessors either privately or publickly shall by me be so far rescinded as that they shall be indebted to me though but to confirm it neither shall they need any mans Intercession to obtain it But when Tacitus had declared how Vitellius had torn the Empire in pieces without any regard had to Posterity the Common people flocking about him But not of prodigal Princes and courting him for his profuse gifts and some others hoping for a good purchase tempting him with ready money at length adds this Apud sapientes cassa habebantur qua neque dari neque accipi salva republica poterant That such gifts were always by wise men accounted void which could neither be given nor received without endangering the Commonwealth Which very saying of Tacitus is much commended by Mariana and applyed to the vast and unbounded Beneficence of Frederick King of Naples who gave away as Philip de Comines relates not his own Crown Lands only but other mens also according as his fancy led him The same may very fitly be applyed to the question in hand and therefore Galba made no scruple of revoking the Grants of Nero even from those that had purchased them leaving the Tenth part only unto them as Tacitus and Plutarch testifie So did Basilius the Macedonian Emperor recover all that the Emperor Michael had given away Whereof Zonaras thus That it was unanimously agreed that They that had received moneys without any probable cause should restore it some wholly and others one half The like did Charles the Eighth of France revoke all that Lewis the Eleventh had prodigally given not excepting his Donatives to the Church As Commineus testifies Comines lib. 9. This also may here be added if any such accident fall out wherein a Contract made by a King is discovered to be not only damagable but pernitious to the Commonwealth so that at the time when the said Contract was so made had it been applyed to that case it had been judged unlawful and unjust Then may that Contract be not so much revoked as declared to be no longer binding as if made with condition of being void in that case without which condition it could not have been justly made Thus did that wise Queen Elizabeth revoke some priviledges granted to the Hans-Towns See Camdens Elizab. Anno. 1595 1597. in Controversia Hansiatica by her Predecessors when they began to exact them as due by rigour of Law and not as granted them by the meer favour of the Prince Alledging that priviledges granted by Princes to their subjects much more to strangers might according to the times for the benefit of the Commonwealth and other causes be lawfully suspended yea revoked and made void And when the same Queen had drawn a dangerous War upon her self for assisting the Hollanders who refused to repay her those vast sums expended for their ten years defence upon pretence that by her Contract with them that money was not due till the War was ended and that till then she could not recede from her contract She prudently replyed That all Contracts between Princes were to be understood to admit of an interpretation of sincere fidelity Neither is any Prince bound by his Contracts when for just cause that Contract turneth to the publick Detriment That the peace is not broken though a Prince recede from his Contract when it is done by an accident of a new case or when it comes to a new case which had it been thought on had otherwise been provided against Lastly That a Prince is not bound by any Contract though solemnly made if it tend to the Detriment of the Commonwealth For that a Prince is more strongly bound to the Commonwealth Vide Camd. Eliz. 1595 1597. than to his own Promise as Mr. Camden records And what is here said of Contracts is true also in the Alienation of the peoples money and of any other things which the King hath by Law a power to alienate for the publick good For herein also is this
distinction to be observed where there is any probable reason for giving or otherwise alienating what is the peoples But in case the King shall by any Contract go about to alienate any part of his Kingdom or of the Royal Patrimony beyond what is permitted unto him such a Contract shall be of no force as being made of that which was not his to dispose of As much may be said of such Kingdoms as are limited and restrained if the people have exempted any either matter or kind of acts from the power of their King For to make such acts valid the consent of the people or their Representatives is necessarily required as we have already shewed when we discourst of alienations Now these distinctions being observed it is no difficult matter to judge Whether the exceptions of Kings who refuse to pay their Predecessors Debts whose Heirs they are not be just or unjust whereof we may read many examples in Bodine XIII Of the Grants of Kings which are revocable and which not Neither is that which some affirm to be admitted without a distinction namely that the benefits of Princes which are freely and liberally granted may at any time be revoked For some benefits a King may give out of what is his own and which were it not for this clause at the prayer or request of the Grant might well pass for a perfect Donative Now these cannot be revoked unless from Subjects by way of punishment or for publick good for which also satisfaction must be given out of the publick stock if possible But other benefits there are which only take away the binding power of the Law without any Contract and these are revocable For as a Law universally taken away may always be universally restored so also being particularly taken away it may be particularly restored For no Right is here acquired against the Law-maker XIV Whether the right King be bound by Contracts of an Usurper But by such Contracts as are made by Usurpers or such as without any just title invade a Kingdom neither the people nor their lawful Prince are obliged For such have no right at all to bind them Yet even these also shall be bound by those Contracts so far as they are enriched by those Contracts CHAP. XV. Of Leagues and Sponsions I. Publick Agreements what they are II. Divided into Leagues Sponsions and other Conventions III. How these differ and how far Sponsions oblige IV. Menippus his division of Leagues rejected V. Leagues divided into such as oblige unto things agreeable to the Law of Nature and from whence this ariseth VI. And unto things thereunto added which are either equal VII Or such as are unequal which again are divided VIII Leagues made between those of a different Religion by the Law of Nature are lawful IX Nor are they universally forbidden by the Hebrew Law X. Nor by the Christian Law XI Cautions concerning such Leagues XII All Christians are obliged to enter into a League against such as are enemies to Christianity XIII If diverse of our Confederates are at War which we ought to assist explained by a distinction XIV Whether a League may be understood to be renewed tacitely XV. Whether the breach by one Party do free the other from being obliged XVI How far the Sponsors stand obliged in case what they undertake for be refused XVII Whether a Sponsion being known but not refused do oblige by silence This explained by a distinction I. Publick Conventions what they are ALL agreements are by Vlpian divided into such as are publick or private The publick he expounds not as some think by a Definition but by Examples The First whereof is that whereupon a Peace is concluded The Second is that whereon the Generals on both sides do agree among themselves about some things touching the War By Publick Agreements he understands those which cannot be made but by such as have the Right of Empire either Greater or Lesser whereby it is distinguished not only from the Contracts of private persons but from the Contracts which Kings make in their private affairs although even from these private Contracts a War is sometimes occasioned but oftner from the publick Wherefore since we have sufficiently treated of Conventions in general we will add thereunto some things concerning this kind which of all others is the most excellent II. How divided Now these publick Conventions which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we may divide into Leagues Sponsions and other Pactions III. The difference between them The difference between Leagues and Sponsions we may learn out of the ninth Book of Livy where he tells us That Leagues are such agreements as are made by the Command of the Supreme power and whereby the whole Nation is made liable to the wrath of God if they infringe it And this among the Romans was wont to be performed by Heraulds in the presence of the King of the Heraulds But a Sponsion is where the Generals having no order from the Supreme Power to conclude any thing about such a matter do yet promise and undertake something concerning it In Salust we read thus The Senate as it is very fit have decreed That without their and the peoples Command no League shall be made Lib. 24. Hieronymus King of Syracuse as Livy relates contracted friendship with Hannibal but he sent afterwards to Carthage to make of that Alliance a perfect League Wherefore that of Seneca the Father where he saith Cont. l. 4. c. 29. In that the Emperour struck up a League the Roman people may be said to strike it up and to be concluded by it must be referred to those ancient Consuls or Generals who had received special Order from the Senate and People of Rome so to do But in Monarchical Estates See Book 3. ch 20. §. 2. the sole power of making Leagues is in the King According to that of Euripides Adrastum hunc opus Jurare Namque is jus habet regni potens Vt civitatem foedere obstringat suo This Adrastus ought to swear I say Who being their Soveraign the whole City may Oblige this League for ever to obey Now as Inferiour Magistrates cannot oblige the people so neither can the minor part of the people oblige the whole But let us here enquire how far forth they are bound who not having the peoples Right shall yet undertake that which the people only have a Right to do Some may think that if the Sponsors use their utmost endeavour to effect that which they have undertaken they have preserved their Faith according to what we have already said Vid. sup ch 11. §. 22. of Promises made for the fact of a third person But the nature of the business concerning which this Contract is made requires a stricter obligation For no man in Contracts will either give or promise any thing of his own but expects that something shall be performed unto him in lieu thereof Whence it is that by
nisi sacra colenti Strangers shall not direct Into their way if not of their own Sect. The like doth Tacitus record of them Hist 6. Apud ipsos fides obstinata misericordia in promptu adversus omnes alios hostile odium Between themselves they were very faithful and apt to shew mercy but to all others they bare a mortal hatred But because they were commanded to be thus charitable to their Brethren therefore to conclude that it was not lawful for them to do good unto strangers will prove but ill consequence But yet such were the corrupt Glosses of the Hebrew Doctors that they perswaded the Jews that if they performed those duties of Justice and Charity to those of their own Nation they had sufficiently fulfilled the Law though to all others they were not uncivil only but barbarous as indeed they were For we find it recorded of them by the Evangelist that it was not their custome to eat to drink or to have any familiarity with Strangers And thus through all Ages they have continued as appears by the Characters given of them by all Historians Apollonius Molo objects against them thus They admit of none amongst them that agree not with them in matters of Religion neither will they communicate with them in any thing Thus do the Friends of Antiochus in Diodorus brand them A people they are of all others the most unsociable to strangers for they account all such as enemies And a little after They will not eat with any other people nor so much as salute or bid them farewel such a general hatred they bear to all mankind The like testimony doth Philostratus give of them And in Josephus we find it every where objected against them That they were a people of all others the most uncivil and the most unsociable But Christ who was every where most observant of the Law did by his own example teach them that this was not the scope of Moses nor the sense of the Law John 4.9 when he preferred the good Samaritan before the Levite and asked and received water from the woman of Samaria In that prayer which King Solomon made at the Dedication of the Temple we find this Petition That God would vouchsafe to hear the prayers of the strangers which they should offer up unto him in that house whereunto Josephus adds these words Ant. lib. 8. c. 2. For we are not of so Inhumane a nature as to stand ill affected to strangers Yet herein we are to except not only the seven Nations above mentioned but the Ammonites and the Moabites of whom we find it written thus Deut. 23.6 Thou shalt not seek their prosperity nor their good all thy dayes for ever In which words the Israelites are forbidden to make any League of society or amity with them yet it gives them no right to make war against them Or haply this place of Deuteronomy may be better understood according to the opinion of some of the Hebrew Doctors as if to seek a peace from them were forbidden but not to accept thereof when offered Certain it is they were forbidden to make War upon the Ammonites Judg. 11.16 Deut. 2.19 neither did Jephtha accept it till they had obstinately refused equal conditions of Peace nor David till he was provoked thereunto by unsufferable injuries The Question then resteth here Whether we may joyn with Infidels in a Social War Whether it be lawful to enter into a Social War with Infidels Before the Law given that this was not unlawful appears by the practice of Abraham who assisted the wicked Sodomites in their War Neither did Moses change any thing herein that we can read Of the same perswasion were the Asmonaeans who were both very skilful in the Law and very strict observers of it witness their religious observation of the Sabbath whereon notwithstanding they made use of their Arms to defend themselves but not otherwise and yet we find them entring into Confederacy with the Romans and the Lacedaemonians by the consent both of Priests and people and instituting solemn Sacrifices for their safety These Asmonaeans we find highly commended in the Chaldee Targum in the Books of the Maccabees and in the Epistle to the Hebrews whose example both Emperours and Christian Kings following made Leagues with such as were either not at all Christians or at least not sound Christians as Constantine with the Goths and Vandals Justinian with the Lumbards the Saracens the Francks the Scythians So did Theodosius Honorius Leo Heracleus Basilius Isacius and others with the Vandals and the King of Spain with the Moors Now the examples that are brought out of the Scripture for the defence of the contrary opinion have causes peculiar to themselves For certainly some Kings and people there were beside those forbidden by the Law who were so wicked that God by his Prophets declared his purpose to destroy them now to joyn in Confederacy with these was doubtless unlawful Thus did the Prophet reprove Jehosophat for joyning in League with Ahab yea and seems to threaten him for it Shouldst thou help the ungodly and love them that hate the Lord 2 Chr. 19.2 therefore is wrath upon thee from before the Lord. For the Prophet Micah had before told the unhappy success of that War So did another Prophet reprove Amasia for waging a War with an Army hired out of Israel Let not the Army of Israel go with thee 2 Chr. 25.7 for the Lord is not with them But this was not by reason of the unlawfulness of the League but by reason of the quality of the persons as may be evinced by this that God did sharply rebuke and threaten Jehosophat for associating himself with Ahaziah King of Israel though it were but for traffick And yet when David and Solomon did the like with Hiram God did not only not reprove but in part commend them for it Constit Clem. lib. 6. c. 18. For in that Ahaziah is said to do very wickedly it is to be understood of the whole course of his life which was aggravated in that being an Israelite he had forsaken the God of his Fathers and therefore was God provoked to blast all his enterprises For this also is to be observed That the case of those who being Israelites forsook the Lord whom they knew Esay 8.6 1 Chr. 16.12 Ambr. ad Rom. 3. was far worse than of those that were strangers For against those that made this defection the rest of the people might take Arms and destroy them and all they had Deut. 13.13 Sometimes again where the Leagues are blamed it is not for the Leagues sake but for the wicked intention of him that makes it So God reproves Asa for betaking himself to the Syrian namely out of diffidence which he had declared by sending the Vessels consecrated to God unto the Syrian So when he was sick 1 Chr. 16.12 he placed more confidence in his Physician than
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
it manifestly turned to the publick detriment or when it was done by the accident of a new case or when a new case ariseth which had it been foreseen would have been provided against For that every Contract though sworn is understood with this reserved condition if matters continue in the same state but not if they be changed Which that wise Queen grounded upon the Authority of Seneca A wise man changeth not his resolution all things continuing as they were at the time when he made it nor can he be said to Repent because at that time and as the case then stood no better counsel could be followed than was then resolved on And when the Hans-towns complained against her to the Emperour That their priviledges were broken in England and their customes much enhansed She Answered That those Priviledges were by Authority of Parliament abrogated as being not convenient for the times being granted when Traffick and Merchandizes lay dead among the English And for her Customes she said that the Common-wealth could not subsist if no other Customes should now be paid by the Hans-towns than what were paid three hundred years before And much to this purpose is that of Seneca Being invited to a Feast I 'll go because I have promised although it be cold I will arise to a Wedding because I have promised although I am not sufficiently refresht with sleep but not if I am Fevorish although I have promised Nor will I stand bound with thee for any thing that is uncertain though thou biddest me in case thou art indebted to the Exchequer For in all these Promises there are some tacite exceptions to be understood namely if I can or if I ought so to do if things be then as they now are Effice ut idem status sit cum exigitur qui fuit cum promitterem Make the case the same when thou exactest my Promise as it was when I made it If any new thing intervene it is not levity or inconstancy in me if I fail What wonder is it if a man change his mind and counsel when his condition is changed Eadem mihi omnia praesta idem sum Make all things the same and then I also am the same XXVIII Other signs whereby we may guess that such a case ought to be exempted There are also as we have said other signs of the Will whereby we may conjecture That that case was to have been exempted Among which there are none more convincing than words spoken or recited in some place not where they do directly contradict each other which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereof we made mention above But when as it were unexpectedly from the very event of things they seem to clash one against another which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 XXIX What Rules should then guide our conjectures Now when such a case happens which part of the Writing ought to prevail with us we may be instructed by some rules that Cicero * De Invent. 2. Verina 2. hath left us out of some ancient and approved Authors which are by no means to be slighted yet in mine opinion are they not digested into a right order And therefore I think fit to place them thus That that which is permitted do always give place to that which is enjoyned For as Quintilian saith Semper potentior lex est qua vetat quà m quae permittit That Law that commands is always stronger than that which permits Because he that permits any thing is conceived to permit it unless somewhat else do hinder than what is then treated of and therefore Plus valet sanctio quam permissio A Decree or Sanction is more prevalent than a Toleration Secondly That what is to be done at a time prefixt be always preferred before what may be done at any time From whence it follows That for the most part that which forbids is to be preferred before that which enjoyns Because what prohibits binds us at all times but so doth not that which commands unless it be either when the time is exprest or that the command comprehends under it some tacite prohibition Again that in such agreements as are in their qualities before-named equal That should be preferred which is most proper and comes nearest to the matter in question For Particulars are always more efficacious than Generals And in things prohibited that those which have a penalty affixt be preferred before those that have none and those that have a greater penalty before those that have a lesser As also that those be preferred that have causes affixt either more honest or more profitable And in the last place that that which was spoken last be more valid than that which was spoken before Of what hath been already said this also must be here repeated That look what Agreements are sworn unto must be understood in the most usual Propriety of Speech And that all secret reservations and restrictions more than the very nature of the thing doth necessarily require be altogether disowned Wherefore also in case an Agreement sworn shall in effect clash with that which is not sworn that which was bound by an Oath shall be preferred XXX In a case that is dubious a Writing is not required to compleat the Contract It is also usually questioned Whether in a doubtful case a Contract ought to be accounted perfect and compleat before the Writings are signed and delivered For this Muraena alledgeth against the Agreement made between Sylla and Mithridates To me it is very plain That unless it be otherwise agreed on the Writings stand but as the lasting Monument of the Contract and not as any part of the substance of it If otherwise it must be so exprest as in that made with Nabis Where it was provided That those conditions should be of force From that day whereon they should be published by Nabis XXXI The Contracts of Kings not always to be interpreted by the Roman Laws But I cannot admit of their opinion who hold That the Contracts of Kings and Free States are to be interpreted as far as is possible by the Roman Laws unless it appear That among those people the Civil Law in such things as concern the Right of Nations hath ever been received for the Law of Nations which is not rashly to be presumed XXXII Whether his words that offers or his that accepts are most binding As to that Question moved by Plutarch in his Symposiacks namely Whether the words of him that proposeth conditions or of him that accepts of them are most binding It appears to me That seeing it is he that accepts that promiseth they are his words if absolute and in themselves that gives form and being to the Contract For if he regards the words of him that offers conditions affirmatively he shall be thought to repeat those very words in his Promise according to the Nature of Relatives But certain it is That before the conditions be accepted even he
Wherefore in case any hainous crime be committed by them they are required to be delivered up by the Embassadour to punishment but they are by no means to be taken from him by force Which when once done by the Achaians who seized upon some Lacedaemonians who attended upon the Roman Embassadours the Romans presently cryed out That they had violated the Law of Nations Whereunto also we may refer the judgement of Salust concerning Bomilcar which we have formerly quoted But if the Embassadour shall refuse to deliver him then we are to proceed in the same manner as is before prescribed against the Embassadour himself But whether the Embassadour have jurisdiction over his own Family or whether his House be a Sanctuary for all such as shall flye unto it for refuge depends upon the pleasure of him to whom he is sent for this belongs not at all to the Law of Nations IX And to their movable Goods The movable Goods also of an Embassadour and whatsoever else shall appertain to his person are not to be received in pawn or attached for any debt neither by any ordinary course of Law nor by the hands of the King himself which some hold as the truer opinion For no force or compulsion must be by any means used against him or his that so he may enjoy an absolute and perfect security And if he shall have contracted any debt and have no real Estate as it usually falls out he must only be fairly intreated to discharge them which if he refuse then is he that sent him to be likewise intreated to pay them But if neither will do it then in the last place we must flee to such Remedies as are provided against such Debtors as do reside in Foreign Countries Yet is it no breach of their priviledge that their Coffers be searched at their first entrance in case it be according to the custom of the Country whereunto they are sent As it happened to Sir Thomas Chaloner in Spain who complaining thereof to Queen Elizabeth and desiring to be recalled Cambden Eliz. Anno 1561. was prudently answered by that most wise Queen That an Embassadour should take all things in good part so as his Prince's Honour was not directly violated X. Examples where there are Obligations but no power to compel Neither is there any cause to fear as some may imagine that if the case be thus with Embassadours no man will trust them or make any Contract with them For the King himself though he cannot be compelled to any thing yet never wants Creditors if they give good prices And among some Nations as Damascen informs us it is customable That as to such debts as are contracted upon trust there is no remedy provided by Law no more than there is against men that are ungrateful So that men in those parts are compelled either to pay readily for what they buy and on both sides to fulfil alike all their agreements or to content themselves with the bare faith and credit of the Debtor Seneca seems to envy the happiness of those Countries by wishing the same custom in all places De benef lib. 3. c. 15. I would to God saith he that we could perswade all people that Moneys lent upon credit should be recovered only from those men who were willing to pay and that no stipulation should bind the Buyer to the Seller and that no written Contracts or Covenants under Hand and Seal should be preserved but rather that the performance of them should be left to the Faith and Honesty of the Debtor Appian relates of the Persians That they hated the borrowing of mony as being an inlet to Fraud Falshood and Perjury Lib. 4. Lib. 15. And Aelian reports the very same of the Indians with whom agrees Strabo in these words Judicia non esse nisi de caede injuria c. There are no Judicatories unless it be for Murders and Injuries done because it is not in the power of any man to avoid these But as to Contracts and Agreements it is in the choice of every man to make them or to refuse them and therefore if any man break his Faith with us we are to bear it patiently and to learn rather to be wise in taking heed before hand whom we trust than by our folly to fill the City we live in with Law-suits It was also wisely enacted by Charonda That no man should have his Action at Law against that man whose Faith he thought fit to take for the price of what he sold him which Plato likewise approves of L. 8. de Leg. Mor. Nic. 8. 15. This was also observed by Aristotle In some Countries saith he there is no recovering of such Debts by Law-suits for they conceive that men ought to acquiesce and to be contented with the faith of that man whom they thought worthy to be trusted Mor. l. 9. c. 1. So in another place Some Countries there are where the Laws do forbid a man to recover by Law that which he hath trusted upon the Faith of another as if he with whom we have made any Contract and on whose faith we have taken were privately only to be dealt with Those Arguments which from the Roman Laws are brought against this opinion are to be referred not unto our Embassadours but unto such as are sent from Provinces or from particular Cities XI Prophane Histories are full of the Examples of Wars undertaken for the affronts offered to Embassadors And in the Sacred Story we read of a War made by King David against the Ammonites upon that ground Neither can there be any cause more just as Cicero pleads against King Mithridates CHAP. XIX Of the Right of Burial I. From the same Law of Nations ariseth the Right of burying the Dead II. Whence this springs III. It is due even to Enemies IV. Whether to such as are notoriously wicked V. Whether to such as kill themselves VI. What other things are by the Law of Nations due I. From the Law of Nations ariseth the right of Burial FRom the same Law of Nations which is voluntary ariseth the Right of burying the bodies of the Dead Dion Chrysostome amongst those Customes which he opposeth to written Laws placeth this of Burial next to the Rights due to Embassadors And Seneca the Father among those Laws that are unwritten which yet are more firm and binding than those that are written inserts this of the Interment of the dead The Hebrew Historiographers Philo and Josephus term this the Right of Nature And Isidore Pelusiota One of the Laws of Nature as it is very usual with them to comprehend all such Customes as are common amongst all Nations and agreeable to Natural Reason under the Notion of the Law of Nature as I have elsewhere shewed And no marvel Epist ult edit 491. Lib. 12. Lib. 13. Hist 8. 19. seeing that as Aelian speaks The burial of the dead is a thing commanded even by Nature
it self And in another place The Earth and Graves are to all men common and alike due Eusebius also reckons it among the Laws of Nature And Euripides The Laws of Mortals Aristides calls it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Law common to all men Papinius The Law of the whole Earth and the general League of the World Tacitus The great Commerce of humane condition And Lysias the Orator The common hope of all He that hinders the burning of the bodies of dead men is said in Claudian to divest himself of all humanity and by the Emperour Leo to reproach Nature her self and by Isidore to profane that which is holy And because the Ancients observed that what Rights soever being common to all Civilized Nations to the end that they might be reputed the more sacred were attributed to the Gods as their Authors As they did the Rights of Embassadors So we find that they every where ascribe unto them this Right also In one of the Tragedies of Euripides and in one also of Sophocles you may find it called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Supplic Ajace A Divine Law and in another Antigone you may find it reckoned among the Laws of the Gods And Isocrates discoursing of the Ground of the War which Theseus made against Creon brings in Adrastus having lost his Army before Thebes and by Creon denyed leave to bury the Dead supplicating Theseus then King of Athens That he would commiserate those brave men that lay unburied before Thebes and that he would not suffer the Ancient Custome to be despised nor that Common Right violated which all mankind might lay claim to as being instituted not by an humane but by a divine power which when Theseus heard he immediately sent his Embassadors to Thebes The same Author exceedingly blaming the Thebans for preferring their own Decrees before the Laws of the Gods And not only Isocrates in this place but Herodotus in his Calliope Diodorus Siculus in the fourth of his Histories Xenophon in the sixth of his Grecian History and many other Historians do unanimously assert That this War of Theseus was undertaken for the Common Cause of all Mankind And every where in all Authors of the best account we read this office of burying the dead commended unto us under the most specious names of the best Vertues Orat. pro Quintio Lib. 6. c. 11 22. Lib. 5. c. 1. Cicero and Lactantius commend it as an Act of Humanity Valerius Maximus as an Act of Humanity and Courtesie Quintilian as an Act of Humanity and Religion Seneca as an Act of Compassion and Humanity Philo attributes it to Pity and Commiseration of Common Nature Tacitus calls it the Commerce of Humane Condition And Vlpian ascribes it to Mercy and Piety Euripides and Lactantius term it an Act of Justice and of Piety Lib. 6. c. 12. Vltimum illud maximum pietatis officium est Peregrinorum pauperum Sepultura To bury the Stranger and the Poor is the last and greatest duty of Piety saith Lactantius As on the contrary to deny Burial to the Dead as the Donatists did the bodies of the Catholicks Optatus Milevitanus condemns as Impiety And in Papinus we read Bello cogendus Armis In mores hominemque Creon By War and Arms must Creon be Enforc't to Customes and Humanity Spartianus brands such men with Infamy Vita Cara callae as if they had no respect or reverence at all to Humanity And Livy calls it A brutish Cruelty beyond the belief of Humane Anger Homer brings in Jupiter and the rest of the Gods as being offended at Achilles for abusing the body of Hector And Lactantius condemns their wisdom as savouring too much of Impiety who esteem all Care in burying the Dead superfluous II. Whence this custome ariseth Upon what ground this Custome of burying the bodies of the Dead was at first introduced whether embalmed according to the Custome of the Egyptians or burnt according to the manner of the Grecians or interred as we now use which Cicero approves as the most Ancient Nat. Hist l. 7. c. 54. and after him Pliny who makes this difference between Sepultus and Humatus as if he were understood to be Sepultus whose body was by any means kept and preserved but he only to be Humatus that was covered with Earth it is not agreed upon on all sides Moschion attributes it to the savage Cruelty of the Gyants who were wont to devour the dead bodies of men Cujus abolitae signum est sepultura The abolishing of which Brutish Custome is signified by Sepulture Others are of Opinion that by this means men seem voluntarily to pay that debt which Nature will exact from us though we were otherwise unwilling For that all humane bodies being extracted from the Earth should return to the Earth was not said by God only unto Adam but all both Greeks and Latines do every where acknowledge Cicero quotes this out of Euripides that Reddenda terrae terra Earth must to Earth return Which also are the very words of Solomon Eccles 12.7 Eccles 12.7 Then shall the Dust return to the Earth as it was and the Spirit shall return unto God that gave it Now on this subject what said Solomon more than Euripides who in the person of Theseus saith thus Jam sinite terrae Mortuos gremio tegi Res unde quaeque sumpserat primordium Eo recipitur Spiritus Coelo redit Corpusque terrae Jure nec enim Mancupî Sed brevis ad aevi tempus utendum datur Mox terra repetit ipsa quod nutriverat Now let the Dead be unto Earth bequeath'd And each return from whence it once receiv'd Its being then will the Spirit soon retire to Heav'n The flesh to dust from whence it came not giv'n But for a short time lent that past and gone The Earth what it so lent soon seizeth on Lucretius speaking of the Earth saith She is of All the Womb and common Tomb. Pliny likewise tells us That the Earth receives us as soon as we are born and being born she nourisheth us and being brought up she alwayes sustains us and at last being forsaken by all the world she like a tender Mother receives us into her own Bowels again and there hides us See Job 10.9 In Flaccum Nature saith Philo hath ordained the Earth as Mans proper place not only whilest they live but being dead also Ut eadem quae primos suscepit Natales suscipiat ex hac vita Exitum That she that receives us from the womb may when dead afford us a Tomb. And yet as there is nothing that is laudably done in man but what God hath imprinted some footsteps thereof in some Beasts so also it falls out in this very thing Lib. 11. 30. Pliny reports of the Pismires That they only of all other living creatures besides men do bury one another And yet he himself speaking of the Dolphins saith Lib. 9. c. 8. That
qualemcunque Mortuum terra condi fas sit Because it was always thought an Act of Piety to inter all dead Bodies whosesoever they were Wherefore according to the exposition of the Hebrew Doctors The High Priest though otherwise forbidden to be present at any Funeral yet notwithstanding if a man were found dead and unburied he was even himself commanded to bury him The very same was enjoined by the Pontificial Law among the Romans as Servius notes Christians have so high an esteem of this duty that for this cause as well as for the relief of the Poor and the redemption of Captives they have thought it lawful to melt down their Consecrated Plate and to sell it There are also Examples that may be brought for the contrary opinion but such as are by the Judgement of the most and best men condemned Hunc oro defende Furorem saith Virgil Which Servius thus expounds O keep me from this rage I pray i. e. from that Malice which rageth even after Death The like we may read of in Claudian Hominemque cruentus Exuit teneum caesis invidit arenam Bloody are they wanting humanity Who to the slain a little dust deny Wherewith agrees that of Diodorus Siculus Ferinum est bellum quod cum mortuis qui ejusdem sunt Naturae geritur To wage War with the Dead who were lately of the same Nature with our selves is bruitish Cruelty IV. Whether to such as are notoriously wicked But yet as concerning such notorious Malefactors as have deserved Death and according unto Law have suffered there were some cause to doubt But that the Divine Law given to the Hebrews which as it was our guide and directrix to all other Vertues so is it to this of Humanity also did command That such as were hanged on the Gallows which was a Death very ignominious among them as appears Numb 25.4 and Deut. 21.23 should be Buried the same day Whence Josephus affirms 2 Sam. 21.26 That so great was the care that the Jews took of burials that they took down the Bodies even of those that were publickly Executed before the Sun went down and bequeathed them to the Earth And as others of the Jewish Interpreters add This they did in reverence only to the Image of God whereunto Man was created Homer records That Aegysthus who to the Sin of Adultery had accumulated another Sin Odyss 3. even that of the Kings Murther being himself afterwards slain was notwithstanding by Orestes the slain Kings Son buried Yea and among the Romans Vlpian will inform us That the Bodies of such as were put to Death as Malefactors could not be denyed their Kinsmen if they required them yea they were to be given to any body else that would ask them as Paulus understood it Neither did those cruel Emperours Dioclesian and Maximilian forbid Burial to any though guilty of the greatest crimes and accordingly punished Hos Sepulturae tradi non vetamus was the answer of both of them We do not forbid these to be buried The like Custome there was among the Romans as Philo testifies against Flaccus Yet Examples we have also of some who have been cast out unburied But this is more frequently done in Civil than in Foreign Wars And though it be a Custome among us to hang notoriours offenders in Chains to deter others yet whether this be commendable or not The hanging men in chains whether commendable is much disputed not only by Politicians but Divines On the contrary we find them highly commended who have themselves caused those Bodies to be buried which they would not permit others to bury As Pausanias King of the Lacedaemonians who being provoked by the Aegeneti to retaliate what the Persians had before done against Leonides rejected their Counsel as unworthy of him or indeed the name of a Grecian Papinius brings in Theseus bespeaking Creon thus Vade atra daturus Supplicia extremique tamen secure Sepulchri Torments extreme go and endure Yet of a Sepulchre be thou secure Josephus records it of the Pharisees Ant. l. 13. c. 24. That they gave a most sumptuous Funeral to their King Alexander Jannaeus notwithstanding his barbarous cruelty exercised over the Bodies of his dead Countrey-men And though God hath sometimes punished some persons with the loss of Burial as he did Jehoiakim and Jezebel Jer. 22.19 yet this he did by his own most Sovereign Power which is not bound up by any Law but that only of his own Will And whereas David kept the head of Goliah 1 King 21.23 to shew as a Monument of his Victory it was done upon a Stranger a contemner of the true God And under that Law where by the word Neighbour none were included but the Hebrews only V. Whether to those that killed themselves There remains yet one thing worthy our observation concerning the Burial of the dead namely That the Jews as zealous as they were for this duty yet would not vouchsafe this Honour to those who killed themselves And no marvel as Josephus well observes †Ant. lih 3. c. 25. since no other punishment can possibly be inflicted upon those who esteem Death it self to be none The Milesian Virgins as Plutarch reports were all at once surprized with a violent fit of Melancholy and in an humour would needs dye * A. Gell. l. 15. c. 10. Plut. de Mul. virt no man knowing the cause why Many of them notwithstanding all perswasions and care taken of them did strangle themselves and others daily attempting to do the like were prevented At length by the advice of a grave Senator The Milesian Virgins it was enacted That all that were found so hanged should be stript naked and with the same cord being first dragg'd through the streets hanged in the Market place and exposed to publick view The fear of shame was stronger than the fear of death After this Law made none was ever found so regardless of her Honour as to attempt such an Act. Servius upon the twelfth of Virgil's Aeneads tells us That it was provided by the Roman Laws Vt qui laqueo vitam finisset insepultus abjiceretur That whosoever hanged himself should be cast out unburied And very frequent it is among most Nations Nic. 55. to inflict some brand of Infamy upon such as kill themselves as Aristotle notes Which place Andronicus Rhodius expounding saith That they were prohibited Burial Which Law Dion Chrysostome highly commends among many others enacted by Demonassa Queen of Cyprus Aesch in Clesephontem At Athens in the times of Aeschines he that killed himself had his Hand buried apart from his Body Neither is it to the purpose to object with Homer Aeschylu◠and others that the Dead feel nothing either of pain or shame For no malefactor is put to death simply because he hath sinned but in regard that his death strikes a terrour into others Quod mortuis accidit à vivis metuitur What happens to the
dead affrights the living and consequently restrains them from sinning in the same kind which is enough to justifie the punishment Yet is it worthy to be observed That though Plato were somewhat favourable in his Sentence on such as killed themselves yet doth he not think fit to leave them altogether unpunished What expiation saith he or what manner of Interment they should have that kill themselves God knows But then he goes on and gives his own opinion thus Let them be buried saith he in some solitary and desart place where none was ever buried but themselves and let there be no Statue Monument or Inscription set over them that their Bodies Names and Memories may rot together The Platonists do excellently dispute against the Stoicks and against all such as hold That a man may for the avoiding either of some present slavery or the violent assault of some dolorous and incurable disease or out of hopes of glory for a good cause undergo a voluntary death by maintaining that the Soul is to be kept in the safe custody of the Body until it be unavoidably required from us by him that gave it Much to this purpose may be read in Plotinus Olympiodorus and Macrobius upon the Dream of Scipio Aristotle accounted such as killed themselves to be weak and effeminate Fortis viri est mala perpeti It is the part of a valiant man to suffer as well as to act couragiously Seneca Non est virile terga Fortunae dare It is but a weak and lazy refuge by a voluntary death to avoid pain or shame according to that of the Poet Rebus in adversis facile est contemnere vitam Fortiter ille facit qui miser esse potest Each Coward whilest distrest can life disdain He valiant is who dares encounter pain Brutus condemned the fact of Cato though afterwards he wrote after the same Copy It is neither pious nor indeed manly saith he to turn our backs upon Fortune and to fly away from those imminent calamities which we should magnanimously bear Expectandus est vitae exitus quem natura decrevit What manner of death Nature hath decreed for us we must with patience expect Epist 70. Mart. saith Seneca It is no part of Valour or Fortitude to destroy our selves but a madness rather Nonne furor est nè moriare mori Strabo l. 15. It was well observed by Megasthenes That the fact of Calanus was by the wisest among the Indians condemned it being contrary to their Laws for any man through impatience to kill himself Neither did the Persians approve of it Witness that of King Darius in Curtius Lib. 5. Alieno scelere quam meo mori malo I had rather perish by another mans crime than by mine own No nor the Arabians as may be collected from that of Job Who wait for death but it cometh not Job 3.21 and dig for it more than for hid Treasures And therefore the Hebrews do render this word mori To dye by the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To be let go or To be dismist as may appear not only by Luke 2.29 Lord now lettest thou thy Servant depart in peace but by the Greek Version of that place in Gen. 15.2 and that in Numb 20. towards the latter end Which manner of Speech is familiar among the Greeks also as Themistius testifies of them in his Book De Anima They say of the Soul of him that dyeth saith he it is dismist and death it self they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A dismission Plutarch also in his Book of Consolation hath the same expression Donec Deus ipse nos dimittat Vntil God himself dismiss us It seems that the Jews did somewhat vary in their opinions concerning this matter as appears by Josephus where he records and seems to commend the Generosity of Phasacles Ant. l. 14. c. 25. who knowing that he was adjudged to death which he feared not scorning to fall at the command of an Enemy seeing that he could not kill himself with his own Sword being bound dasht his Head with all the force he had against a Stone and so perished Thus the Jews plead to Petronius as Philo records We say they mix our own Bloods by voluntary deaths for fear lest whilest we strive at two things i. e. to reverence our Emperour and yet to observe our Divine Law we should incur the displeasure of God Which danger we may avoid if by contemning this miserable Life we embrace a voluntary Death Some of these Jews would admit of one only case wherein it was lawful for a man to kill himself namely rather than live to be a perpetual reproach and scorn to the Enemies of God For seeing the Power over our lives is not in our selves but in God as Josephus rightly instructs his Countrey-men They presume that it is the will of God that they should put an end to that reproach by a voluntary death And hither they refer the Examples of Sampson who seeing the True Religion in and through him to be held in contempt chose rather to dye than that God by him should be dishonoured And that also of Saul who fell on his own Sword that so he might not be insulted over by such as were Gods and his Enemies For the Jews held 1 Sam. 31.4 That immediately after the Ghost of Samuel had foretold his Death he repented Umbra Samuelis and that although he knew he should dye in case he did fight yet rather than he would betray his Countrey and the Law of God into the hands of his Enemies he refused not to fight Therein meriting eternal praise by the Testimony of David And hence it was that he so highly commends the men of Jabesh Gilead for their Piety in bestowing an Honourable Interment upon Saul A third Example we have in Razes a Senator of Jerusalem in the History of the Maccabees 2 Mac. 14.37 Infinite Examples we may find in our Ecclesiastical Histories of such who lest they should be enforced by Torments to abjure their Religion have killed themselves and of Virgins who to preserve their Chastity have cast themselves into Rivers whom notwithstanding the Church hath honoured with the Crown of Martyrdom St. Ambrose doth highly extol them for it and St. Hierome on the first of Jonas makes an exception of this only case from that general Rule For no Persecution can justifie the killing of our selves saith he but where our Chastity is endangered But St. Augustine seems to be of another mind For though he will not derogate from the Authority of the Church De Civit. Dei lib. 1. c. 26. Epist 61. ad Dulc. which haply might be led thereunto by some Divine Tradition or those Virgins guided by some Divine Instinct yet would he not have any Christian draw this into a Precedent For saith he no man must presume to offer up his own Son in Sacrifice because Abraham did it in obedience
to Gods express Command Yet this he confidently asserts That no man ought to destroy himself to avoid either the torments of this life lest he incur those infinitely greater in the life to come or to prevent Sin in another lest he contract a worse in himself or for Sins already past which require a larger time to repent of or out of an impatient thirst after immortality because he that is guilty of his own death must not expect hereafter a better life De Civ Dei l. 1. c. 16. And yet elsewhere speaking of those who to preserve their Chastity killed themselves he adds Who can be so void of humanity as not to forgive them Among the Grecians also there was another sort of men exempted from Burial which custome the Locrians object against the Phocenses Diod. l. 16. saying That it was generally observed through all Greece that Sacrilegious persons should be cast out unburied The like doth Dion Prusaeensis report of such as are Atheists and notoriously impious And the very same punishment was ordained at Athens against such as were Traitors as Plutarch testifies But Nicetas in his Third Book of Alexius the Brother of Isaacius having declared the death of Joannes Comnenus Crassus who raised Sedition and affected the Empire saith That they afterward exposed his Body to be devoured by Birds and Beasts which was an act void of humanity and savouring too much of a Bruitish Cruelty But that I may retreat to what was first intended all ancient Writers do unanimously accord in this That a War may be justly undertaken for denying Burial to the dead as may clearly appear by the story of Theseus which is recorded by Euripides and Isocrates in the places before quoted VI. Some other things due by the Law of Nations There are also other things which by the voluntary Law of Nations are due As those things which have been long possest Succession to him that dyes Intestate and such things as we hold by Contracts though very unequal For all these though they have in some measure their rise from the Law of Nature yet do they receive confirmation by Humane Laws whether against the uncertainty of conjectures or against some exceptions which otherwise Natural Reason may haply suggest As we have already shewed when we treated of the Rights of Nature CHAP. XX. Of Punishments I. The definition and original of Punishments II. That they appertain to Commutative Justice and how III. It naturally belongs to no one person but may by the Law of nature be exacted by any that have not alike offended IV. Among men the end of Punishing is for some benefit but otherwise with God and why V. In what sense revenge is naturally unlawful VI. The profit arising from Punishment threefold VII As it respects the good of the delinquent it may naturally be exacted by any yet with a distinction VIII So also as it respects the good of the person injured and of lawful revenge by the Law of Nations IX And also as it respects the good of every man X. What the Gospel requires as to this matter XI The Argument drawn from the mercy of God set forth in the Gospel Answered XII Another concerning the cutting off the opportunity of repentance Answered XIII An imperfect division of punishments rejected XIV It is not safe for private Christians to exact punishment even where the Law of Nations allows it XV. Or to accuse any man willingly XVI Or to affect capital Punishments XVII Whether those humane Laws that permit the killing of a man as a Punishment give him a right or only impunity except by distinction XVIII Internal acts not punishable by men XIX Nor such external as humane infirmity cannot avoid XX. Nor such acts as neither directly nor indirectly do hurt to humane Society And why XXI The opinion that Punishments are never to be remitted rejected XXII That they may be remitted before the penal Law be passed XXIII Yet not always XXIV Yea and after the penal Law is past XXV What probable intrinsick causes justifie the doing of it XXVI What causes extrinsecal XXVII The opinion that no dispensation is to be granted for any cause but what is tacitely excepted in the Law rejected XXVIII Punishments inflicted for some merit XXIX Where respect is had to the causes impelling which are compared one with another XXX As also the causes which should withdraw us and of the degrees of the precepts of the Decalogue that concern our neighbour and some other matters XXXI Of the propensity of the offender to either which hath divers respects XXXII That the merit of Punishment may extend to a greater harm than that which the offender intended And why XXXIII An harmoniacal proportion in Punishments rejected XXXIV That Punishments ought to be mitigated out of Charity unless a greater Charity forbid XXXV The facility of sinning how it incites to Punishment also custom how it incites or disswades from punishing XXXVI Of what use clemency is in the mitigating of Punishments XXXVII What the Hebrews or Romans had respect to in Punishments may be referred to the places above mentioned XXXVIII Of war made for the exacting of Punishments XXXIX Whether war made for the punishment of injuries begun be just explained by distinction XL. Whether it be lawful for Kings or States to make war upon such as violate the Law of nature though they have committed nothing against them or their subjects and that jurisdiction is not necessary naturally to the exacting of Punishments XLI The Law of nature distinguished from civil customs largely taken XLII And from the voluntary Divine Law not yet known to all Nations XLIII As to the Law of nature that which is manifest is to be distinguisht from that which is not XLIV Whether a War may be made for sins committed against God only XLV Of some common notions of God which and how they are exprest in the Decalogue XLVI The first infringers of these Punishable XLVII But not others as is proved by the Hebrew Law XLVIII That War is not justly to be made upon any only for refusing to embrace Christian Religion XLIX War may justly be made against them that persecute Christians as such L. But not against such Christians as do misunderstand the meaning of the Divine Law illustrated by Authorities and examples LI. But may and that justly against those that are impious against such as they believe to be Gods I. The definition of punishments ABOVE when we began to assign the causes of War we considered mens deeds in a twofold respect either as the wrong they did might be repaired or as it might be punished Concerning the former we have sufficiently spoken we come now to the latter which is Punishments which we shall the more accurately discuss for as much as its Origine and nature being misunderstood hath given occasion to many errours Punishment in its general acceptation is malum passionis quod infligitur ob malum actionis the evil
that we suffer for the evil that we do And though hard labour be sometimes imposed upon some persons by way of Punishment yet this is in respect of the pains and trouble that accompanies those works and may therefore fitly be referred to passion As for those inconveniencies which some men suffer without any sin committed as by some contagious disease or as being maimed or for some uncleanness to be debarred the Society of men or to be made uncapable of some office or function many whereof we may read of in the Jewish Law these are not properly Punishments though for some resemblance they have with them and by the abuse of the word they are so called Among those things that natural instinct tells us are lawful and not unjust this is one ut malum qui facit malum ferat that he that doth evil should suffer evil which Philosophers do reckon as the most antient and most perfect rule of justice or as one of the Laws of Radamanthus yea so antient and indubitable that Plato was so bold as to say That neither the Gods nor good men durst ever say otherwise but that he that doth wrong deserves to suffer for it Plutarch makes justice one of Gods immediate attendants whose offer it is to revenge all affronts done to the Divine Law which all men do naturally make use of against all men as being fellow Citizens And Hierax describes justice by that which is its principal office namely to hurt those who have first hurt others And Hierocles calls Justice the only cure for wickedness as if no satisfaction could be made for wrongs done but by sufferance neither is there any thing that so powerfully restrains us from sin as the apprehension of some just Punishment Lactantius de Ira dei c. 17. We are therefore very irrational when we blame either God or men for their severity to us when we are punished non enim nocens dicendus qui nocentes afficit poena for he is not to be blamed that punisheth but he that deserves Punishment That which we suffer is just because that which we do is unjust Omnis poena si justa est peccati poena est Every just Punishment saith St. Aug. Aug. must necessarily refer to some crime which is true even of those that are inflicted by God himself though sometimes by reason of our ignorance latet culpa ubi non latet poena the judgment flames out when the sin lies smothered II. It appertains to commutative justice But whether it appertain to distributive or commutative justice divers men are of divers opinions Some think that they that offend most are punished most and so on the contrary And because punishment is inflicted as it were by the whole on a part therefore it is to be referred to attributive justice But whereas in the first place they say that this branch of justice takes place only where there is an equality to be assigned between terms more than two that this holds not always true we have already shewn in the beginning of this work Besides that they that sin most are punished most and they that offend least are least punished this falls out by consequence only and was not primarily and of it self intended for that which is simply and in the first place intended is that there be an equality between the offence and the punishment whereof Horace thus Why doth not reason weights and measure frame That every sin may have its proper pain adsit Regula peccatis quae poenas irrogat aequas Nec scutica dignum horribili sectêre flagello Whereunto we may refer also that of Deut. 25.2 3. Deut. 25 2 3. where the Judge is commanded to see the malefector beaten with a certain number of stripes according to his crime iniquum erit si aequaliter irascatur inaequalibus De Ira l. 11. 6. to punish all sins equally is very unjust saith Seneca for as the Scholiast upon Horace observes If we inflict the greatest punishments upon the smallest crimes it must necessarily follow that the greatest will remain either in part unpunished or some new punishments must be invented Neither is that much truer which they say that all punishment doth proceed from the whole to its parts See beneath Sect. 28. 32. and Book 3. c. 11. Sect. 1. as will appear by what we shall say hereafter Besides the true intent and reason of distributive justice properly consists neither in such an equality nor in the procession of the whole to its part as we have elswhere shewed but in the respect had to the fitness and aptitude of the Delinquent to such a punishment which doth not infer any right thereunto strictly taken but is only preparative as giving occasion unto it for although he that is punished ought to be worthy of punishment yet may we not hence infer that he must necessarily undergo whatsoever distributive justice may impose upon him Neither do they that refer the punishment of Delinquents to commutative justice extricate themselves any better for they consider the matter so as if punishments were due to a malefactor in the same manner as things are usually due upon contracts That which deceives these men is the vulgar manner of speaking whereby we say that punishment is due to a malefactor which is very improper for he to whom any thing is properly due hath a right against him from whom it is due But in saying a Punishment is due unto any man we mean only this that it is just he should be punished yet notwithstanding true it is that in punishments commutative justice is simply and by it self exercised forasmuch as he that punisheth that he may do it justly ought to have a right to do it which right ariseth from the guilt of the delinquent And herein there is something that draws near unto the nature of contracts Because as he that sells a thing though he mention nothing particularly yet is presumed to stand obliged to perform all things natural to the sale So he that transgreseth a Law doth voluntarily oblige himself to the penalty of that Law because it is not possible that there should be any hainous crime that is not punishable so that he that is willing directly to transgress a Law is by consequence willing to undergo the penalty of that Law In which sense some Princes do pronounce sentence against a malefactor thus Ipse te huic poenae subdidisti thou hast voluntarily subjected thy self to this punishment And to this purpose is that of Philo Peccare cum festinatis ad poenam festinatis Vita Mosis whilst you make hast to sin you do but run headlong to punishment That woman that would marry another mans slave is said in Tacitus to consent to her own slavery Ann. 12. because that was the punishment ordained for such women Michael Ephesius upon Aristotle tells us That in every sin Nicom 15. there is a kind of giving
did the wrong Secondly By taking away from him the power to do wrong Or Thirdly By deterring him from doing any further wrong by the sharpness of his punishment which is conjoyned with reformation whereof we have just now already discourst But to be secured from others by the punishment of him who hath offended it is necessary that the said punishment be publick and conspicuous which appertains to exemplary punishments whereof more anon Now if our desire of revenge though private be directed to these ends only and can be impaled within the bounds of equity if we look at the bare Law of nature first abstracted from divine and humane Laws and from those other occurrents which do not necessarily happen to the thing it is not unlawful whether it be done by the person injured or by another seeing it is natural for one man to help another De Invent. lib. 2. In which sense may that of Cicero be admitted where he defines the Law of nature to be that which consists not in opinion or custom but in that which nature it self suggests unto us where also amongst other examples he places this of vindication which he there opposeth to grace or pardon And lest any man should question the extent of the word he defines it to be that whereby we defend both our selves and those who ought to be dear unto us from force and calumny by a just revenge or whereby we punish offences Mithridates in that Oration which Justin extracts out of Trogus speaks thus Against Thieves all men ought to draw their swords if not for their safety yet for their revenge which Plutarch in the life of Aratus calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law of revenge By this natural Law Sampson justifies himself against the Philistines Judg. 15.3.7.11 when they had provoked him by taking away his wife and giving her to another Now saith he shall I be more blameless than they though I do them a displeasure for he concluded it to be just for him to injure them who had first provoked him by so great an injury and according to this rule he pleads his own cause and defends himself for being demanded by the men of Judah what he had done against the Philistines to provoke them he answered as they have done to me so have I done to them v. 11. Plut. Rom. ad finem When the Laurentines delivered up those that killed Tatius to Romulus to be punished he set them at liberty saying that blood was to be expiated with blood intimating that because Tatius had before slain their Embassadors or at least connived at it it was but just that blood should have blood for as Belisarius in Procopius notes it is but natural to account him as mine enemy who hath by an assault wounded me Thus likewise the Plateans in Thucydides plead for themselves in the like case we have deservedly punished them say they for by that Law that is in force amongst all men it is lawful to be revenged on those that first make war upon us Vand. 1. Demosthenes in his Oration against Aristocrates saith that this Law is common amongst all men to inforce satisfaction from them that have forceably taken away our goods from us and Jugurtha in Salust having shewed how Asdrubal had laid in wait for his life adds that the people of Rome did that which was neither just nor right in forbidding him that rigbt which the Law of Nations allowed him that is a just revenge and Aristides the Orator proves it by the authorities both of Poets Lawyers Proverbs and Orators that a revenge may be lawfully taken upon such as have first injured us St. Ambrose commends the Maccabees for revenging the blood of their innocent Brethren though it were on the Sabboth and against the Jews who bitterly complained against the Christians for burning their Churches he pleads thus if I should argue according to the Law of Nations I should recount how many Christian Churches the Jews burnt in the time of the Emperour Julian thereby concluding that to requite like for like was agreeable to the law of Nations thus did Jonathan and his associates revenge the death of their Brother John upon the Nabathits as they were celebrating some great Nuptials upon whom he unexpectedly fell and slew both men women and children as Josephus informs us But because men are too partial Judges in their own causes Ant. l. 13. c. 1. therefore that liberty which nature did at first indulge unto every man in vindicating his own quarrel is justly taken away and Judges appointed to determine all controversies between man and man and to help those to right who suffer wrong Thus Demosthenes pleads against Conon As for these injuries it was thought fit by our Ancestors that they should receive their punishment from the Laws and not from the rage and violence of every mans will So doth Quintillian the compensating of an injury is not only repugnant to the Law Laws and Magistrates ordained to punish offenders and why but unto peace for there are Laws Judges and Courts whereunto any man may appeal unless there be any that are ashamed to be vindicated by the Law So likewise the Emperours Honorius and Theodosius for this very cause are Tribunals erected and the defence of the publick Laws instituted lest any man should arrogate to himself the liberty to revenge his own quarrels So King Theodorick from hence do the Laws challenge from us a sacred reverence that no revenge may be taken by our own hand nor any thing done against our enemies by the suddain impulse of our own passions For how inconvenient this would be is evident by that plea of Tindarus against Orestes This if thou sufferest Menelau ' I ask If th' angry wife her husband's blood should spill And in revenge the son his Mother kill And if her blood cannot be washt away Without fresh blood where would these mischiefs stay Which words of Euripides being full of Prudence do abundantly supply both Philosophers and Orators with matter of Argument Maximus Tyrius in his dissertation concerning the retaliating of injuries speaks thus A good man will neither do an injury nor suffer one not do one I mean willingly nor suffer one because he magnanimously slights all that are done unto him If to infer an injury be wicked surely to return one is somewhat like it for although he that wrongs another in that he gives the first offence commits the greater fault yet he that requites that injury because he was pleased with revenge is alike wicked for if he that doth his neighbour wrong do evil surely he that returns that evil is not the less evil because he doth it in revenge And a little after quis erit unquam injuriarum finis c. if it be granted saith he that a good man having received an injury may revenge it then may he that suffers that revenge as justly return it for on both
nourishment And by and by he addes What we have written of Foxes and other noxious Serpents the same we suppose may be said of men Whereunto he presently subjoins Furem Latronem qui quocunque modo occiderit sive manu sive jussu sive suffragio innocens est He that kills a Thief or a Murtherer whether it be with his hand or by his command or suffrage is to be accounted innocent And to these places of Democritus I suppose Seneca had some respect in saying Sen. de ira l. 1. When I command an obstinate Malefactor to be put to death I do it with the same mind and intent as when I command a noisom and venemous Beast to be killed Nay if I see a Viper or a Scorpion saith Philo though he attempt not to bite or to wound me yet will I kill him if I can lest he should endanger me or some others by that malignity that is in him We would not kill Foxes Wolves and the like ravenous Beasts could we but make them tame and serviceable and not be endangered by them so Ne homini quidem nocebimus quia peccavit sed ne peccet Neither would we hurt and destroy men because they have offended but because they should not offend again But since as well the strict enquiry into the nature and quality of every Fact doth often require great diligence as also the fitting of each crime with its just punishment much prudence and equity lest whilst every man presuming on his own sufficiency should arrogate more unto himself than others would be content to grant him and thereby much strife and contention should arise therefore it was unanimously agreed upon That in all just Societies of Men such should be made choice of as they esteemed to be the best and most pâ—udent amongst them or at least whom they hoped might in time prove to be so whom thâ—y called Magistrates upon whom by common consent they transferred all that right which by the Law of Nature every one of them had to punish Malefactors So the same Democritus The Laws would never restrain us from living as we please but that it was evident that men went about to wrong one another For envy is the mother of sedition But yet what is said before of private revenge the same may be here also said of publick and exemplary Judgments namely That there doth yet remain some footsteps of that ancient Right in such places and among such persons as are not subject to publick Judicatories yea and among such also as are so subject in some particular Cases As among the Jews it was lawful for any man to kill him immediately who forsook God and his Law Deut. 13.9 Numb 25. 1 Macc. 2.24 26. or that seduced his Brother to Idolatry which the Jews called the judgment of zeal which was first exercised by Phineas and from him was drawn into a custome Thus Mattathias and his five Sons fell upon a certain Jew who in obedience to the Kings Command was sacrificing unto the Heathenish Gods on the Altar at Modin and slew him as Josephus informs us Ant. l. 12. c. 4. 1 Macc. 2.24 So we read of three hundred Jews which were killed by their own Country-men in that Book which is vulgarly called the third Book of the Maccabees This was the sole pretence that the Jews made for their stoning of St Steven Acts 7.57 And for their conspiracy against St Paul Acts 23. many other examples we may find in Josephus and in Philo who in his Book of Sacrificers to Idols saith That such a man as shall so sacrifice Ch. 20. Sect. 9. should be punished as a publick enemy to all men be he never so nearly related unto us And his Motives and Arguments whereby he would perswade us to a defection from the true worship of God are to be published unto all that love true piety that all men may immediately run from all places to take revenge upon that impious Wretch being fully perswaded that the desire to kill such a man is an holy thing Yea and in many Nations this Right doth yet remain in Masters over their Servants and in Parents over their Children to punish them even with death So it was lawful for the Ephori of Sparta to put to death any of their Citizens without judgment Now from what hath here been said we may clearly understand what the Law of Nature was concerning punishments and how long it continued X. What the Evangelical Law requires as to this Let us now enquire whether this liberty of punishing or revenging an injury be restrained by the Gospel And surely it is no wonder as we have elsewhere said that many things that are consonant to the Law of Nature and to the Civil Laws are notwithstanding forbidden by the Divine Law seeing that that Law is the most perfect of all Laws and proposeth a reward far greater than humane nature or than can possibly be given by any other Law-maker for the obtaining whereof there are deservedly required such Vertues as exceed those commanded by the sole Law of Nature Vide Lactant. de ira Dei c. 18. Those Chastisements that leave behind them no brand of infamy nor lasting damage and are necessary for certain Ages and Conditions Servorum Filiorúmque peccata non coercere peccatum est as for Children and Servants are no whit repugnant to the Divine Evangelical Law especially if done by such as by humane Laws have a permission so to do as by Parents Tutors Masters c. which may easily be collected from the very nature of the thing it self For these are the Souls Physick altogether as harmless as well-tempered Potions though to the sense as unwelcome But as to revenge it is otherwise For as it only satisfies the mind that is sensible of the wrong it suffers it is naturally unlawful much less is it agreeable to this Evangelical Law as we have already shewed But the Hebrew Law did not only forbid to hate or bear any grudge against their Brethren Revenge as it proceeds from a delight in the Revenger naturally unlawful that is against their own Country-men Lev. 19.17 but it commanded them to confer on them some common courtesies though they were their enemies Exod. 23.4 5. Now our Saviour embowelling this Law and shewing That under the name of Neighbour all mankind was to be understood doth hereby convince us That we are not only restrained from hurting our enemies but that we are also commanded to do them good Matth. 5.44 But yet it was permitted to the Hebrews to revenge some great injuries done them though not by themselves yet by their Judges But the Evangelical Law takes away this licence also as is evident by that opposition that he puts between the Law and the Gospel Ye have heard that it hath been said An eye for an eye and a tooth for a tooth saith Christ but I say unto you c. And
unless a greater and juster love of many perswade us otherwise for some cause that is external which sometimes is some extreme danger that may arise from him who hath offended but very often the necessity of an example But this most usually ariseth when the encouragements to any sin are general and cannot be represt without sharp and speedy remedies Now the principal encouragements to sin are these two namely Custom and Facility XXXV Custom facility how they add or detract from the punishment of sin Which two being so dangerous ought to be provided against by sharp and severe Laws The Hebrew Law did punish a Thief more severely for stealing Sheep or Oxen out of the field than out of the house Exod. 22.1.9 For he that stole out of the field was to restore four and fivefold but he that stole out of the house but double The reason whereof was because Cattle in the field are more easily driven away and therefore had need to be secured by the severer Laws Orat. pro Roscio Those crimes saith Cicero are to be fitted with the severest punishments Ea maximè animadvertenda peccata quae difficilimè praecaventur which cannot be prevented without great difficulty So Justin speaking of the Scythians saith There was no crime so heinous as Theft because to them who had neither houses nor inclosures to secure their herds of Cattle or their flocks of Sheep in what safety could there be if it were permitted unto them to rob and steal Much like unto that in Aristotle's Problems where speaking of such Thieves as frequented Baths he saith That the Law-giver considering that the owners could not in those places look after their things wisely committed them to the safegard of severe Laws And accordingly we find that these Balneary Thieves were in Athens punished with death if what they there stole were above the value of ten Drachmaes as Demosthenes testifies against Timocrates The Custom of a fact although it detract somewhat from the crime for as Pliny speaks in such a case he gave him his pardon and that not without reason for though the fact were forbidden by the Law yet was it commonly committed and not punished yet did it require in some sort to have been severely punished Because as Saturninus speaks Nimium multis grassantibus opus exemplo est when a sin begins to spread and Malefactors grow numerous then some exemplary punishment seems necessary for as an hot-headed Horse hath need of a strong rein so the more publick and customary a sin grows the sharper should be the punishments to suppress it But the former that is clemency in acquitting offenders is more to be followed in giving sentence and should be our guide in passing Judgments but the Laws themselves ought to be severe and impartial yet with due regard had to the time when those Laws or Judgments were made and published because the benefit that ariseth by punishments hath respect to the universality as all Laws also have but offences do vary and are not the same in every offender for in some they are greater and in some less XXXVI Clemency in the mitigation of punishments But where there are no great or urgent causes to exact the severity of the Laws there we should incline to mitigate punishments For herein consists one part of clemency the other part consisting in their total remission Because it is a difficult thing to find out an equal temperament between the sin and the punishment saith Seneca therefore let the inequality be always on the gentler side De Clem. l. 1. c. 1. And in another place Poenam si quis tutò poterit condonet sin minus temperet If it may safely be done the best way is to forgive if that cannot be the next is to lessen the punishment In Diodorus Siculus we find one of the Kings of Egypt highly commended for inflicting punishments less than the sin deserved So Justin in his Epistle to the Huns The manner of the Romans is not to exact punishments equal to the merits of the Offenders And indeed as I have before observed there is a great deal of mercy even in the mitigation of punishments the lesser lose much of their name and nature where the sin deserves greater It is said of Marcus Antoninus That his custom was always to award punishments somewhat lesser than the crimes deserved or the Laws required And Isaeus the Orator was wont to say That the Laws ought to be severe but the punishments always milder than the Laws The like by way of advice we find in Isocrates To make the punishments always less rigorous than the sin was heinous This was it which was intended by the Emperour Henry under the Symbol of a Pomegranet-Tree with this word Subacre Very sharp And Cassiodore reports it of a King Lib. 11. 40. who was often heard to say Where there is danger we are severe but where we are safe we always pardon When some Donatists were apprehended and brought before Marcellinus for whipping a Catholick Priest putting out one of his eyes and cutting off one of his fingers Ep. 159. Grat. c. 23. q. 5. Circumcelliones St Augustine fearing that he should have proceeded against them by way of retaliation humbly besought Marcellinus That he would not do so nor suffer any such thing to be done for nothing saith he more becomes a Prince than clemency And as Macedonius tells St Augustine It is the duty of a Priest to intercede for the guilty XXXVII To these are referred whatsoever the Romans or Hebrews have written concerning punishments Thus have we I hope omitted nothing that may conduce to the clearing of this Argument of it self difficult and obscure enough For those four things which as Maimonides saith ought principally to be regarded in punishments namely The greatness of the sin that is the damage given the frequency of such Sinners the vehemency of the temptation and the facility of committing it we have referred to their proper places no less than those seven mentioned by Saturninus though confusedly enough For first As to the person offending he is considered principally in his aptitude to judge of the Causes exciting to or restraining from sin whereof we have treated before The person suffering by that sin doth sometimes guide us to judge of the greatness of the sin Sect. 31. The place where it was committed doth either peculiarly aggravate it or appertains likewise to the facility of sinning Sect. 30. For it is not the same thing saith Philo to offer violence to a Stranger as to ones own Father Nor is it the same thing to speak evil of a private man as of a Magistrate or to commit an unlawful thing in a common or prophane place as in a sacred or on an holy day as on another day in a private house as in a publick assembly for as Vlpian observes There is great difference between an injury committed in the view of
for others to follow XL. War for violating the Law of Nature This also we must know That Kings and such as have equal right with them have also a right to exact punishments for offences done not against themselves and their Subjects only but for such injuries as do not particularly touch themselves but against any persons by whom the Laws of Nature or Nations have been greatly violated For the liberty of providing for the safety of humane Society by punishments which at first as we have said was in every particular person Cities and Judicatories being now instituted resides in such as have the supreme Authority not so properly because they command all as indeed because they are commanded by none For that which takes away this right from private men is their subjection to the supreme Powers without whose Warrant they can attempt nothing of revenge Yea and so much the more honourable it is to revenge other mens wrongs than our own by how much it may justly be feared lest out of too great a sense of our own sufferings we either exceed the just measure of punishing or prosecute our revenge with too much malice And upon this account it was that Hercules was so famous for subduing those Tyrants Antaeus Busyris Diomedes c. and cleansing both Sea and Land from all such noxious Creatures which he did not out of ambition or desire of gain but to vindicate the cause of the oppressed and to plague the unjust as Philo testifies of him De legat This Character is likewise given of him by Diodorus Siculus Many Cities he restored to an happy condition by taking away insolent Tyrants and such like Oppressours For as the same Authour speaks in another place Orbem obiit poenam de iniquis expetens He travelled through the world for no other end but to scourge Tyrants The like testimony doth Dion Prusiensis give of him saying That he every where plagued the wicked destroyed the Kingdoms of the proud and transferred them unto others And for the general care that he had of all Mankind Aristides thought him worthy to be translated amongst the Gods Dionysius Halicarnassensis records this and many more inhumane Customs which Hercules reformed to the general benefit of Mankind making therein no distinction between Greeks and Barbarians Lib. 30. c. 1. The like doth Pliny testifie of the Romans It is not to be imagined saith he how much we owe to the Romans for taking away those Monsters among men who placed the principal part of their Religion to kill men and their wholesomest food to eat them Thus Justinian commanded the Princes of the Abasgi to abstain from gelding their Children Goth. 4. as Procopius relates And the King of Incha in Peruana compelled all their neighbouring Nations that would not willingly obey him by force of Arms to abstain from Incest Sodomy eating of Mans Flesh and such like abominations whereby they obtained the justest Empire that we have ever read of their Religion only excepted The like honour is given to Theseus for destroying those great Enemies of Mankind Sciron Sinis and Procrustes who in that Age troubled all Greece with their barbarous inhumanity Lib. 5. c. 3. and is therefore by Euripides called The Scourge of wickedness My Noble Acts through Greece are so extoll'd That I the Scourge of wickedness am call'd For as Valerius Maximus reports of him Whatsoever Monster of cruelty that Age produced by the strength of his Body and the gallantry of his Mind he subdued So that without doubt a War may be justly undertaken against Parricides whereof the Sogdians were in an high measure guilty for till they were reclaimed by Alexander they usually killed their own Parents Against Canibals or such as fed upon Mans Flesh as the Scythians did and the ancient Gauls before the former were better instructed by Alexander and the latter by Hercules as Plutarch in Diodorus records Against Pyrates and such as live by Robberies at Sea and the like for against these any Prince hath power to make war though they are not subject to his Government For of such barbarous people who are rather Beasts than Men In Panathenaic it may truly be verified what Aristotle sometimes said of the Persians Naturale in eos esse bellum That war against such is natural Or as Isocrates notes The justest war is that which is undertaken against wild Beasts and the next is that which is undertaken against such men as are bruitish What saith Seneca though they do not infest my Country yet if they are vexatious to their own De benef lib. 7. Though they are divided from me yet if they infest their own people they deserve for the pravity and corruption of their minds and manners to be destroyed And so far we follow the opinion of Innocentius and others who hold That war may lawfully be made against such as do break the Laws of Nature But we cannot approve of that which Vasquius Victoria Azorius and Molina have written namely That to justifie a War it is requisite That the person that undertakes it be injured either in himself or in the Commonwealth whereof he is the Supreme or that he against whom the War is made be under his Power and Jurisdiction For whereas they make the right to punish to be but an effect proper to the Civil Jurisdiction We on the other side derive it from the Law of Nature whereof we have spoken somewhat in the beginning of the first Book And surely If these mens Opinions from whom we differ be admitted one Enemy shall not now have a right to punish another even after the War is undertaken for any cause not punishable whereas most men do admit of this Right and the Custom of all Nations confirms it and that not only when the Enemy is weakned and brought under but even whilst the War lasts not by any Civil Jurisdiction but by that Natural Right which was in force even before Cities were built and is yet in force where the Inhabitants live dispersed in private Families and are not congregated into Cities XLI The Law of Nature is to be distinguished from Civil Customs But here some Cautions are to be observed the first whereof is That we do not mistake Civil Customs which in most Nations are deservedly received for the Law of Nature Such almost were those wherein the Persians differed from the Graecians whose common pretence for their making war upon the Persians was to civilize them But as Plutarch observed They did but cloak their ambition and covetousness under the title of Reformation As if the disagreement between themselves and others in Civil Customs had been a violation of the Law of Nature XLII And from the voluntary Divine Law not known to all men The second Caution is this That among those things that are forbidden by the Law of Nature we do not rashly intersert such things whereof it cannot certainly be affirmed that they
Grat. in causam 23. q. 3. St Augustine brings in Maximinianus Bishop of Vagia craving aid of the Christian Emperours against the Churches Enemies Non tam sui ulciscendi causa quam tuendae Ecclesiae sibi creditae Not to revenge his own wrongs but to defend the Church of Christ that was committed unto his care And indeed such a War should be undertaken more for the defence of the Innocent than to punish the Nocent L. But not against such as erre in the interpretation of the Divine Law But they that eagerly persecute those that profess the Christian Law only because they either doubt or haply erre in some particulars which either are not exprest in our Law or at least not so clearly but that it will admit of some ambiguity and which have been otherwise understood by the Primitive Christians are unjust as may appear partly by what we already said and partly by the example of the Ancient Jews whose Religion though strongly guarded with corporal punishments yet did never permit them to punish the Sadducees for rejecting the Doctrine of the Resurrection because though most true it was as yet but obscurely glanced at in their Law and not at all taught but covertly under types and figures But what if the Errors be such as amongst equall Judges may easily be confuted both by the authority of the Scriptures and by the common Testimony of the Fathers Yet even herein we must consider how great the strength is of an over-grown Opinion and how much a mans endeavour to defend his own Sect doth diminish the strength and liberty of his own judgment which as Galen saith is malum omni scabie insanabilius a disease more incurable than any Leprosie A man will sooner part with any thing than with his Opinion saith Origen So St Chrysostome In 1 ad Cor. c. 2. An Opinion that hath taken deep root through Custom is hardly to be removed for there is nothing that we alter with more unwillingness than our Customs in Religion Again how great the fault of him is that differs from us in Opinion must be judged by the manner and measure of his illumination and by other dispositions of his mind which is not possible for man to know St Chrysostome makes Ambition the mother of Heresie Ad Gal. 5. and St Augustine defines an Heretick to be one that either for Gain Vain-glory or Ambition doth either set up Lib. de utilitate credendi or at least follow false and New Opinions where he makes a great difference between him that is an Heretick and him that believes and follows an Heretick This is most apparent Grat. c. 24. q. 3. Ep. 162. Scrip. Respons ad Orthodoxos qu. 4. that all Heresies proceed from either the Ambition or Emulation of their first Inventers saith he that wrote the Answers to the Orthodox And therefore St Augustine calls it The frenzy of a mind obstinately bent or the heighth of madness And yet see with what sweetness and calmness of spirit the Fathers of the Primitive Church treated the Hereticks of their times Salvian speaks thus of the Arrians Hereticks they are but not knowingly to us they are Hereticks but to themselves they are not nay so confident they are that they are in the right That they brand us with that infamous name of Hereticks who are Catholicks What they are to us the same are we to them We are most assured that they dishonour the Son by making him inferiour to the Father and they as far condemn us for dishonouring the Father in making the Son equall unto him The Truth is on our side yet they presume it is with them both pretend to honour God to us they appear uncivil but that to them seems to be the chiefest Duty of their Religion to us they appear impious but this they esteem to be true piety they erre indeed in their faith but they do it in perfect love and charity to God and how far punishable this Errour of theirs now is or in the day of judgment will be none can tell but the Judge himself In the mean time God I believe doth therefore forbear them because he sees that though they do erre in their faith yet this errour proceeds from no other root but from the affection to a pious Opinion And indeed such are not to be judged Hereticks by us who do bono animo errare erre through an ignorant zeal Miseratione quà m odio digniores they deserve rather our pity than our hatred as Agathias speaks of the superstitious Almans For they do not go astray nor stumble willingly and knowingly they have without doubt pious intentions but being deceived in their judgments whatsoever they rashly apprehend for truth they hold obstinately Now in what measure saith Chrysostome Hom. contr Anathematizantes such errours are to be punished he only can without danger judge who is the Judge of Ages or the Eternal Judge who alone knows both the true measure of knowledge and the proportion of Faith Concerning the Manichees let us hear what St Augustine saith who was himself once one of them Let them rage against you saith he who are ignorant with what labour and sweat a man finds out the truth which is but one and how difficult it is to decline errours which are infinite Let them rage against you who know not how rare and hard a matter it is to overcome all carnal conceits by the serenity of a pure mind Let them rage against you that apprehend not with what difficulty the eye of our inward man is so strengthned as to be able to behold the beauty and splendor of its own Sun Let them rage against you who have not experimentally learned how many sighs and groans it will cost before a man can attain to the knowledge of God in the least degree Lastly let them rage against you who can presume that they are without errours themselves As for me I neither can nor dare for I ought to bear with you now as others did formerly with me and to treat you with as much patience meekness and gentleness as they did me when I was blindly carried away with your errours Athanasius bitterly inveighs against the Arrian Hereticks because they were the first that called in the Civil Power to their assistance against their Antagonist and that endeavoured by force stripes and imprisonments to draw such unto themselves whom they could not win by the strength of arguments Thereby plainly declaring how little of piety and true devotion there was amongst the Professors of that Doctrine alluding haply to that of St Paul Gal. 4.29 where it is said That as then he that was born of the flesh persecuted him that was born of the spirit even so now Nova inaudita est ista praedicatio quae verberibus exigit fidem Grat. c. 23. q. 4. qui secund It is a new and unheard of manner of preaching to enforce Faith by
but the fruits of our own choice Nor that of Lysias There is no man willingly unfortunate But when a man is made miserable either by the undeserved malice of an enemy or by some secret fate or some misfortune which could not be foreseen then protection by foreign Princes is a debt due to the frailty and inconstancy of our Humane Condition It was a sanction of the wisest Law that ever was Deut. 19.1 23.15 Exod. 21.14 1 King 2.29 2 King 11.13 That he that had accidentally slain a man whom he hated not in times past should fly to one of the five Cities of Refuge and there be safe Because that act as to the irregularity of it had not the consent of the Will so that it was not so properly his sin as his misfortune whereas the very Horns of the Altar could not secure him who out of premeditated malice had slain an innocent person or who out of an affectation of Soveraignty and Dominion did attempt an innovation in the State which Law Philo explaining saith Profanis in fanum nullum esse receptum That no sanctuary can give protection to such unsanctified persons Quaest Graec. 32. The like provision we find to have been in use amongst the Ancient Grecians as Plutarch testifies The Chalcidenses refused to deliver up Nauplius to the Grecians and the reason is given because he had sufficiently cleared himself of the Crimes they objected against him The like we may read of in this latter Age for King Pepin did receive into his protection and refused to deliver up such as being tyrannically opprest fled out of Normandy unto him Yea and the Emperour Ludovicus Pius received those that fled unto him even from the Church of Rome as may appear by his Decree made in the year 817 and inserted in the second Tome of the Gallican Councils c. Cicero Pomponius and others relate That there was in Athens an Altar called Ara Misericordiae The Altar of Mercy which the calamitous have sacred made saith the Poet and a little after Where th' exil'd and the vanquisht seek for rest And Kings of their own Kingdoms dispossest That is all that were unfortunately distrest The City Athens as Aristides tells us was of all other Cities the most ready to protect strangers and such as were through misfortune miserable And elsewhere This in that age was the common Port or Haven wherein all the wrecks of fortune put in and found relief from what part of the world and for what causes soever they were distressed hither they came and here they found succour and protection The like Encomium Mariana gives of Arragon The Gepidae chose rather universally to perish Lib. 20. c. 13. as Procopius informs us than to deliver up Ildigisales either to the Romans Goth. 4. or to the Lombards Sophocles in one of his Tragedies brings in Oedipus supplicating the Athenians in these words Ah! men of Athens I have suffered much Suffer'd indeed for God my witness is That knowingly I have not done amiss And Theseus answering him thus Such Guests as thee at all times to defend O Oedipus repent I never can Till I forget my self to be a man And yet as highly as these Athenians delighted to protect their suppliants whom fortune and not wilfulness had made miserable they would not protect a known malefactor nor give that to Vice that was due only to Innocence witness that in the same Tragedy Hunc qui facinorum conscius nec legibus Fidens ad aras volvitur supplex Deûm Trahere ad tribunal nulla relligio mihi Mala semper aequum ferre qui fecit male From sacred Altars who to judgment draws A guilty Traytor that distrusts the Laws Doth nothing impious for just it is That he should suffer who hath done amiss So the same Poet elsewhere Non enim tangi decet Manu nocente numina at justum fuit Piis patere templa contra injurias With hands impure the Gods to supplicate Indecent is yet should the Temple gate Stand open for th' opprest to enter at Lycurgus the Orator relates a story of one Calistratus who having committed some hainous crime and consulting the Oracle about his safety received this answer That if he would fly to Athens he should have right done him In hopes of impunity he betakes himself to that Altar in Athens which was held the most sacred yet even from thence he was taken and put to death So also was Ferdinand Lord High Chamberlain of Portugal forced from the Altar Lib. 21. and burnt for ravishing a Noble Virgin as Mariana records So religiously did they distinguish between such as were criminous and such as were unfortunate Tacitus condemns some of the Grecian Cities of superstition who thought their Gods to be pleased with their protecting of Malefactors Princes saith he are like Gods for neither do the Gods themselves answer the supplications of the wicked Ann. lib. 3. and in another place he assures us Neque à diis nisi justas supplicum preces audiri That the Gods never heard the supplications of men unless they were just Such then as are notoriously faulty are either to be delivered up punished or at least banished out of their Dominions from whom they are demanded Lib. 1. Thus did the Cymaei in Herodotus who though they would not deliver up Pactyes the Persian whom notwithstanding they durst not keep yet chose that which was safest to both which was to suffer him to fly to Mitylene Thus Perseus King of Macedon in his Apology to Martius concerning those that had betrayed Eumenes pleads thus As soon as upon your information I found these men in Macedon I commanded them forthwith to depart my Kingdom and have for ever interdicted them my Dominions Thus did Queen Elizabeth answer the Scots who demanded Bothwell Camden An. 1593. That she was ready either to deliver him up or to banish him out of England Yet do the European Princes in most places at this day and in the age last past connive at one another for the reception of Malefactors unless they be such as disturb the publick peace or that are guilty of some egregious crimes for lesser crimes they usually pass by unless they are directly excepted against in the Articles of any League as it was in that made between England and France wherein it was agreed That Rebels and Fugitives should be delivered up And in that made with the Burgundians wherein it was provided that all such should be expelled as Camden testifies Anno 1600. However this is worth our observation That notorious Thieves and Pirates when through long and prosperous successes they are become formidable to their Neighbours may be protected as from punishment because it conduceth much to the common safety to withdraw such persons from their wicked practices by hopes of Indemnity in case it cannot otherwise be done this therefore any Prince or People may undertake to do VI. Yet may
they be protected until their Cause be examined and by what Law And this also is observable that Suppliants may be defended until the equity of their case be rightly known Thus Demophon tells the Ambassadors of Eurysthius who demanded of him some that fled unto him for protection Si crimen istis aliquod hospitibus struis Jus impetrabis vi quidem hinc non abstrahes If with foul crimes you can them charge you may What 's right obtain but not them force away But if the Crimes whereof they stand accused be such as are neither against the Laws of Nature or Nation then shall they be judged by the Civil Law of that place from whence the Suppliants came which Aeschylus excellently proves in his Tragedy of Suppliants where he brings in the King of the Argives bespeaking a Company of Grecians that came out of Aegypt thus Manum tibi si immittat Aegypti genus Quod lege patria proximos se sanguine Dicant quis haec objicere se contra velit Quare tuum est docere natalis soli Ex lege nullo jure te illis subjici VII How Subjects may partake of their Princes faults How the faults of Subjects whether Natives or Strangers may be transferred to their Governours we have already seen Now on the other side Subjects also may partake of their Princes faults in case they either consent thereunto or act any thing at his Command or by his perswasion that is wicked but hereof we shall discourse more properly anon when we treat of the Duty of Subjects towards their Prince There may be also a communication of Crimes between the whole body of the people and each particular member thereof because as St Augustine observes Vbi universi ibi singuli Vniversals cannot consist without individuals so every single person being congregated and united in one gross body doth constitute a body universal But yet the faults committed by this Body Politick are properly transferred to those particular members only which did yield their consents unto those publick acts and not unto those who were over-voted by the major part of the Council And as the faults so the punishments of singular persons Licurgus Orat. are distinct from those of the whole Nation For as upon individual persons the greatest punishment that can be inflicted is death so the death of a City is desolation Sup. cap. 9. sect 4. which happens when the Body Politick is wholly dissolved that is when all the Laws Priviledges and other advantages thereof do utterly fail and by this means every single person may of a Citizen become a slave as the Thebans were to Alexander of Macedon Plut. Alex. those only excepted that contradicted the decree of dissolving the Society So also a City or a Kingdom may be reduced into a civil servitude by being made a Province And every particular person may lose his propriety by confiscation and whatsoever that City or People held in common as their Walls their Magazins their Ports Men of War Fleets Elephants Treasuries yea and their Common Fields all become the Conquerours But for private men to lose their particular Estates through the defaults of the universality without any consent of theirs is unjust as Libanius very well observes in his Oration concerning the Antiochian Sedition The same Author approves the fact of Theodosius for punishing a common fault with the loss of their publick Theatres Baths and the honour of being a Metropolis which St Chrysostome also confirms in his seventeenth Oration de Statuis After the very same manner were the same Antiochians of old punished by M. Antoninus the Philosopher c. VIII Whether a punishment once due may at any time be exacted But here we meet with a notable question whether the punishment due for an injury done by the generality of any one City or State may at any time afterwards be exacted so long as that State City or Commonwealth doth subsist it may for that which is justly due at all times may at any time be exacted because the same body politick still remains though the individuals succeed each to other as we have elsewhere shewed But yet on the other side we must note That some things are primarily and absolutely necessary to every Corporation as to have a publick Treasury to have Laws and the like others appertain thereunto derivatively only from those individual persons that inhabit therein In which sense a Nation or City may be said to be just valiant prudent if most or many of the Inhabitants thereof be such and of this kind are the merits of a City For that which hath no life cannot of it self contract any guilt but a City is said to be guilty in respect of those particular persons who actually offended but they being dead by whom the guilt was deduced to the generality of the People the guilt dies also and consequently the obligation to the punishment which without merit cannot consist Thus Libanius in his fore-cited Oration There is no place left for revenge where all are dead that gave the offence Wherefore Alexander is highly condemned by Arrianus for his too much cruelty and injustice in his revenge taken upon the Persians there being no one person then living of those who had formerly offended the Grecians And therefore Julian ascribes that War to another cause There was never any War saith he reputed just Constantii laudatione that was undertaken for such a cause neither by the Grecians against the Trojans nor by the Macedonians against the Persians as may be made clear to any child for they never visited crimes anciently committed by Parents on their Nephews or Children but invaded those only who had by force oppressed the posterity of such as had well deserved and dispossest them of their Kingdoms Concerning the destruction of the Branchidae made by the same Alexander Curtius gives his judgment thus If saith he the same punishment had been inflicted upon the Traitors themselves it had been recorded as an act of his justice and not of his cruelty but the revenge fell upon the innocent whilst their posterity who never so much as saw Miletum and therefore could not betray it to Xerxes pay the price of their forefathers sin The like judgment doth Arrianus pass upon Alexander's burning of Persepolis in revenge for what the Persians had long before done unto the City of Athens But saith Arrianus In mine opinion it was not wisely done of Alexander neither could that be truly said to be a just revenge upon those Persians who had been dead long before For as to that answer which Agathocles made to the just complaints of the Inhabitants of Ithaca namely that the Sicilians had of old suffered much more by their Countryman Vlysses none that hears of it but will think it ridiculous And Plutarch in his Book against Herodotus saith That it was a thing very improbable that the Corinthians should revenge an injury done them by the
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
children Answered It is not for you to know what I intend to do with them that you your selves may perish the more uncomfortably But withal we must note That God doth not use this severity but for such sins as are committed properly in the reproach of himself as for the sins of Idolatry Sacriledge Perjury and the like Neither did the Grecians themselves think otherwise For all those sins which were thus visited on posterity which they called stupendious were of this sort 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereof Plutarch discourseth excellently in his Book concerning the late revenge of God And in Aelian we find a Delphick Oracle to this very purpose denouned against the sin of Sacriledge At scelerum fontes divinum persequitur jus Necpote vitari non si genus ab Jove ducant Sed capiti ipsorum qui nascunter ab ipsis Imminet inque domo cladem subit altera clades Vengeance the guilty doth from Heaven attend Which none can ' scape though they from Jove descend Upon themselves and on their Children all Plague after Plague throughout the house shall fall The like we have in Libanius who speaking of some Sacrilegious persons saith Whereof some have already been punished others not yet but none shall escape and not only they but their Childrens Children after them This is also confirmed by Strabo and Gellius in the story of the Gold stoln out of Temple at Tholouse Concerning Perjury we have already given the like testimonies above and concerning Idolatry we have a most pregnant example in Jeroboam where it is also to be observed That although God doth thus threaten to visit the sins of Parents upon their Children yet he doth not always do it especially if any spark of vertue appear in them or if the Child do publickly declare his detestation of his Fathers wickedness as Andron Pelaeologus did as is evident Ezech. 18. and by divers examples alledged by Plutarch in the place before recited And in the New Testament where there is a clearer discovery made of the punishments that attend us after this life than in any of the Prophets yet is there no commination that extends beyond the person sinning whereunto that of Ezekiel hath some respect though but obscurely as the manner of the Prophets at that time was Now though God do sometimes visit the sins of Parents on their Children yet is this no warrant for us to do the same neither can there be the same reason because of that absolute Power and Dominion that he hath over our lives to take them away at his pleasure without any respect had unto our sins whereas men can have no such power but what our own crimes give them and therefore as the sin so the punishment should not be extended beyond our persons And therefore the very same Law of God doth expresly in another place forbid That either the Father should be put to death for the Child or the Child for the Father Deut. 24.16 which some of the pious Kings of Israel did religiously observe even in the case of Treason as Amasias did which Law is highly commended both by Josephus and Philo As Isocrates doth the like Law amongst the Aegyptians and Dionysius Halicarnassensis the same among the Romans Neither the sin nor punishment of the Father leaves any guilt at all upon the Children saith Calistratus out of Plato For it is just that every Fox should pay his own skin unto the fleaer and that every man should carve out his own fortunes and no man answer for his sin before God by an Attorney Would any City saith Cicero endure such a Law that should condemn the Son or Nephew if the Father only or the Grandfather did offend Hence it is that the Roman Grecian and Aegyptian Laws do forbid the putting to death of Women with Child as an act of injustice and cruelty XV. If not children much less kinsmen And if so then certainly the Laws of the * Dan. 7.22 Justin l. 10. Persians and Macedonians adjudging to death all the kindred and relations of Traitors that so they might the more dolorously perish as Curtius speaks are most cruel and unjust which Ammianus Marcellinus records as the severest of all Laws Philo also observes that it was usual with Tyrants to put to death together with the persons so condemned the five Families that were of nearest kin to them which execrable custom is not so much as heard of among Christians being a cruelty exceeding any humane Judgment XVI Yet may children be denyed somethings which otherwise they might have had But yet in case the Children of such Traitors may have or expect to enjoy any thing whereof the peculiar Right is not in them but in the King or People it may be taken from them by a certain Right of Dominion as it adds to the punishment of the offender Hence it was that as Plutarch observes The posterity of Traitors were held uncapable of honours as the Children of such as were proscribed by Sylla were among the Romans So by the Law of Arcadius it was provided as a thing tolerable against the Children of Traitors That they should not be admitted into any honour or office in the Commonwealth XVII Nor are Subjects properly punished for their Princes crimes Now what hath been here said of Children may as well be said of such people as are truly Subjects if the Question be put whether they may be justly punished for the sins of their Kings or of their Governours I mean not here in case the people shall give their consent thereunto or act any thing in relation to the fault of their Prince which is in it self punishable But we treat of that contract which ariseth from the nature of that body whereof the King is the Head and the Subjects the Members For as to those that give their consent and assistance to the sin of their Prince it is true what Philo observes of Pharaoh in Abrahams time That the whole Family felt the smart of Pharaohs sin because no man had indignation against so unjust a fact but all of them by commending it were as guilty almost as himself So Josephus discoursing of the judgment of Jeroboam The people saith â—e did likewise partake of the punishment of the Kings sin for they also were to be expelled that good land and to be scattered into foreign Nations because they were his companions in the act of his sin But in case the people yield not their consent yet may they partake of the punishment by reason as I said of the connection that there is between them and their Prince David numbred the people and his Subjects are consumed by the Pestilence David thought this to be hard dealing because he thought the people innocent But God saith the Text was angry with the people and therefore moved him against them to say go number the people 2 Sam. 24.1 And then takes occasion by this sin of Davids to punish the sins
not into the world to invade another mans Glory but to communicate his own not to usurp an earthly Kingdom but to confer an heavenly St Paul tells Timothy That a Bishop should be no striker 1 Tim. 3.2 Nor rule by constraint or compulsion for to dâ—ive by force better becomes a King than a Bishop Princes may exercise their Power in punishing Offenders to deter them from doing evil De Sacerd. l. 2. But what we do saith Chrysostome must be not by coercion but by perswasion whereunto he adds this Reason For God crowns not our forced but our voluntary or as St Paul speaks our reasonable service Ad Eph. 1.4 So in another place It is our duty to instruct perswade exhort and reprove but not to command or to compel Consiliariorum locum obtinemus We serve as Councellors to advice and to give our Opinions but still we leave our Auditors to their free choice whether they will act accordingly or no We have no such power given us as to restrain men from sinning by severe punishments Whence it is evident that Bishops as such have no Right of Domination over men In Epitaphio Nepotiani as Kings and Princes have St Hierome distinguishing between a King and a Bishop concludes That the Power of a Bishop is much inferiour to that of a King for a King may enforce to an unwilling obedience but a Bishop hath no power but over such as are willing to obey him Episcopus docet ne Judex inveniat quod puniat The Bishop instructs and admonisheth that the Magistrate may find no cause to punish It was well said of Frederick the Emperour concerning the Pope Ecclesiam regat ille suam divinaque jura Temperet Imperium nobis fascesque relinquat Let him his own Church rule by Laws Divine But let the Sword and Scepter still be mine And when Suenno King of Denmark stood Excommunicate William Bishop of Rosâ—hil in opposing himself against him at his entrance into the Church with his pastoral staff and exposing his breast naked to the officers of the King who offered to draw upon him did therein perform the office of a good Bishop The like did St Ambrose to the Emperour Valentinus as we have declared above Bo. 1. ch 4. §. 5. but whether it be lawful for Kings themselves to make War upon such as have rejected Christianity by way of punishment we have already elsewhere discourst in the Chapter of Punishments as far as sufficeth to our purpose XV. The pretence of fulfilling of prophecies no cause of War And hereof also I shall give my advice and that not in vain but because I foresee by comparing these modern times with those long since past much mischiefs likely to ensue unless in time carefully prevented that the hopes we conceive that some things are due unto us by our own interpretation of some Divine Prophecies can be no cause of a just War Zozimus records it of Nicomedes the Son of Prusias that mis-appling a Prophecy of one of the Sibyls by the perswasion of Attalus made War against his own Father the like he and Ammianus relates of one Theodorus so doth Procopius of John of Cappadocia In the time of the Emperour Gratian. For besides that those Prophecies which are not fulfilled cannot certainly be understood without a Prophetick Spirit the very time of the accomplishment of such as are certain may be hidden from us And lastly the bare prediction unless it be backed with an express command from God gives no right to any man sâ—eing that God permits such things as he predicts to be sometimes brought to pass by wicked men and by wicked actions For the Books of the Prophets are shut and sealed up until a certain time so that they cannot be understood Dan. 12.4.8.9 The Vision that the Prophet Habbakkuk saw concerning the judgments to fall on the Chaldaeans was not immediately to be inflicted on them But it was to be fulfilled in its appointed time In the end whereof saith that vision it shall speak and not lye though it do tarry yet was the Prophet to wait for it for it shall surely come to pass and not stay Hab. 2.3 Time then is the best interpreter of Prophecies St Jerome upon that place of Daniel before-recited writes thus If the Prophet did hear and not understand what will they do who presuming on their own understanding have published this Book which is sealed up and until the time come for its accomplishment So Procopius concerning the Oracles of the Sibyls Which saith he I believe are beyond all humane power to unfold until the time come when they shall be fulfilled Let Divines therefore take heed how they undertake to unriddle Prophecies and let Politicians beware how they give credit to over-arrogating Divines though the things predicted were certainly to come to pass yet are the times and means when and whereby they are to be accomplished very uncertain and therefore it is no dishonour to profess our ignorance of them Eorum quae scire nec datur nec fas est docta est ignorantia scientiae appetus insaniae species Some kind of madness it is to desire to know those things which are therefore screened from us that we should not know them The secret things belong unto God but the things revealed unto us Deut. 29.29 XVI Nor a debt not strictly due but some other way Thus also is it to be observed that in case any thing be owing to a man not strictly out of justice but arising from some other vertue as from liberality favour mercy love or the like as it cannot be recovered by any course of Law so neither can it be required by War For to either of these it sufficeth not that what is required is for some moral reason to be done But besides that it is necessary that there should be in us some kind of Right unto that such a kind of Right as the Laws both Divine and Humane do sometimes give even unto such things as are due by other vertues which when it happens then it becomes a debt after a new way which now appertains to justice But this being wanting the War that is made for this cause is unjust as was that War made by the Romans against the King of Cyprus or ingratitude For he that doth a courtesie to another hath no Right to exact thanks otherwise it were not a courtesie but a contract or debt XVII Though the War be just yet the manner of prosecuting it may make it unjust It is also to be observed that though there be a just cause of War yet may this just cause be spoiled by the access of some vice that cleaves to the action from the mind of the Agent either that something else not by it self unlawful doth more efficaciously move us to the War than the Right it self as when we have a greater prospect unto Glory or when some kind of profit either publick or
freely remits where he hath power to revenge Nec quicquam gloriosius Principe impune laeso Neither is there any thing more glorious than an injured Prince that disdains to revenge his own wrongs And therefore Kings as Quintilian adviseth should be exhorted to make themselves rather famous for their humanity and clemency than formidable for their severity Amongst other the vertues that Ennobled C. Caesar this is recorded by Cicero as the chief That he never forgot any things but injuries Thus doth Livia plead with Augustus As it is the duty of Emperours severely to punish offenders against the Commonwealth so is it their honour to forgive their own personal injuries Dion It is very true what Antoninus the Philosopher told the Senate That there was nothing so unbecoming a Prince as to avenge his own wrongs for though the punishment be put just yet being Judge in his own cause it will seem cruelty And what Themistius said unto the Senate in the praise of Theodosius That a good Prince should excel those who had wronged him not in power to hurt them but in his readiness to do them good Aristotle denies that Prince to be magnanimous that is mindful of an injury which Cicero explains thus For saith he there is nothing more becoming a noble person than gentleness and clemency When one told Antisthenes that Plato spake ill of him he answered without passion Regium est benefacere male audire To do well and hear ill is commonly the fate of Kings The Holy Scriptures do furnish us with many excellent examples of clemency as in Moses who when the people began to mutinie against him for want of flesh instead of punishing them prays for them Numb 11.12 And when God himself branded Miriam with Leprosie for her seditious murmuring against him He instead of taking revenge intercedes for her healing her foul face with his devout tongue Numb 12.13 The like we find in David who being bitterly reviled by Shimei crying out against him Come up thou man of blood c. returned not reproaches for reproaches but being urged by some to a revenge answered meekly Let him alone let him curse for haply God hath bidden him 2 Sam. 16.7 10. Thus did St Stephen intercede for his persecutors saying Lord lay not this sin to their charge Acts 7.60 Now this doth in a more especial manner become those who are Soveraign Princes Chrysost in laude Clem. Vnto whom as all things are permitted so freely to restrain themselves and to make the Divine Law their guide in all their actions is the readiest way to purchase glory and immortality The advice therefore of St Augustine to Count Boniface was worthy to be by all Kings observed Remember speedily to forgive him who having injured thee begs for pardon And these are the principal motives which should disswade us from entring into a bloody War though haply justly provoked which are drawn from that affection which as men we either owe or may rightly shew even unto our enemies IV. And that sometimes for his own and his Subjects safety Sometimes it concerns us to abstain from War for our own and their sakes that are under us Procopius †Procop. Goth. lib. 2. brings in the Goths thus bespeaking Belisarius Since these things stand thus it is a duty incumbent upon the Governours of either Nation not to be too prodigal of the blood of their Subjects out of an ambitious desire of their own glory but to prefer those things that are both just and profitable not for themselves only but for their enemies Plutarch in the Life of Numa tells us That after the Colledge of Heraulds had judged that they might lawfully make War the Senate consulted whether it were fit and expedient for them so to do In the Parable of our Saviour it is said That before any King entred into War he first sate down and consulted about the charge and whether with ten thousand he was able to encounter him that came against him with twenty thousand and if not he instantly sent and made peace with him So Diodorus in Thucydides Although I should pronounce them guilty of great Crimes yet I shall not adjudge them to be slain unless I see it expedient So likewise Livy records of the Tusculans That by suffering all things and denying nothing they purchased their peace with the Romans Lib. 6. Plut. vit Camilli The very same was done by the King of Armenia in the times of the Emperour Severus as Herodotus testifies * Herod lib. 3. And Tacitus tells us That the Romans sought an occasion of War with the Aeduans in vain for being commanded to send money and arms to their Camp they sent both and not only those but victuals also and that frankly So Queen Amalasuntha professed to the Ambassadors of the Emperour Justinian That she would not contend with him in Arms. Sometimes an Enemy may be pacified in a moderate way Lib. 7. as Strabo informs us was done by Syrmus King of the Triballi who at once forbad Alexander the Macedonian entrance into the Island Peuce and at the same time honoured him with many rich presents thereby shewing that it was the fear of his power and not any hatred or contempt of his person that made him to do it And indeed what Euripides sometimes said of the Cities of Greece may fitly be applyed to other States De Marte quoties itur in suffragia Nemo imminere cogitat mortem sibi Sed quisque cladem destinamus alteri Quod si in comitiis funera ante oculos forent Furiata bello non perîsset Graecia When in full Senate Votes for War pass free No man his own destruction doth foresee But all fore-tell the others destinie When if its own sad fate each had foreseen Greece thus by War consum'd had never been When we wax proud and confident in our own strength saith Livy Let us then call to mind that great command that fortune hath over all sublunary things together with the sudden changes and uncertain events of War And as Thucydides adviseth Before we engage our selves too far let us consider how many sad mischances do usually happen in War which the most piercing eye of humane wisdom cannot foresee V. Prudent Rules about our choice of Good The things that usually fall under consultation are either about the intermediate ends which may probably conduce to the last end we fully resolve on or about those means whereby we may probably obtain those ends The end we propose to our selves is always either some good or doubtless the avoiding of some evil which also falls under the notion of good But those things that lead us hither or thither are not expetible for themselves but as they conduce to those ends wherefore in all our Consultations we are to compare both those ends between themselves and the effective power or faculty of those things which lead to the end to produce that end For
commanded may not lawfully be done As if a Father command his Son to give his suffrage or to pass a sentence contrary to his own judgment or to bear witness to that whereof he is ignorant If my Father command me to burn the Capitol to possess my self of such a Fort or Castle I may lawfully answer These things I must not do So in another place We are not to execute all our Parents Commands for otherwise nothing would be more destructive than benefits received if they oblige us unto all manner of servitude To the same purpose is that of Seneca Neither can we command all things nor can our servants be compelled to obey us in all our Commands Contra Rempublicam Imperata non facient They will not obey us if we command them any thing against the Common-wealth they will not though commanded put their hands to any wickedness Of the same opinion was Sopater A Father saith he is indeed to be obeyed if his Commands be according to Law it is true but if otherwise it is not convenient To justifie Subjects for refusing to execute the wicked Commands of their Princes we have divers examples in the Sacred Stories Saul commanded his Guards to fall upon the Priests at Nob but they would not put forth their hands to fall upon the Priests of the Lord 1 Sam. 22.17 Ahab at the instigation of Jezebel persecuted the Lords Prophets to death but good Obadiah preserved a hundred of them and fed them by fifty in a Cave 1 Kings 18.4 Ahaziah commands a Captain and his Fifty to apprehend Elijah only for pronouncing that Sentence which God passed against him Elijah not only refuseth to come down but to vindicate his Commission commands fire from Heaven to consume the Messengers 2 Kings 1.10 In our Christian Stories we find Manuel and Georgius highly commended for refusing to be instrumental in the murder of Augusta And in Prophane we have likewise two notable Examples of such who have refused to obey their Princes in their unlawful Commands the one of Papinianus that great Lawyer who being commanded by Caracalla to justifie as well to the Senate as the people the Paracide he had committed upon his own Brother Geta Spartianus Lib. 21. readily answered That it was not so soon justified as done and for his refusal suffered death The other of Helpodius both recorded by Ammianus Marcellinus whereunto we may adde that of Severus who would have no man exempted from punishment that should dare to take away the life of a Senator extrajudicially as I suppose though at the Emperors Command Stratocles was worthily derided among the Athenians for but offering at a Law Vid. Xiphilinum whereby whatsoever should please King Demetrius should be reputed as pious â—â—wards God and just amongst men Pliny in his Epistle to Minutius labours to make it appear Lib. 3. That the very ministry or execution of unlawful commands is sinful For as Tertullian speaks Plus caeditur qui jubet quando nec obsequitur qui excusatur Surely he that commands things unjust is severely punishable when he that but executes them cannot be excused Those Civil Laws which do easily pardon venial sins are also very favourable to those who are inforced either to sin or to disobey and yet they are not favourable to all alike For where the crimes are foul and such as Nature by a secret instinct seems to abhor they shew no favour at all But where the offence appears not to be heinous by any natural interpretation but by Logical inferences may be proved to be so there they wisely vouchsafe pardon Josephus relates That the Jews that served under Alexander the Great could neither by stripes nor any reproachful words be inforced to carry Earth or other materials as the rest of the Souldiers did towards the repair of the Temple of Belus which was in Babylon But examples more pertinent to our purpose are the Thebean Legion whereof we have already spoken and the Souldiers that served under Julian Christian Souldiers under Julian the Apostate whereof St Ambrose speaks thus Though the Emperour Julian were an Apostate yet had he many Christians that served under him to whom if had said Draw out for the defence of the Commonwealth they would instantly have obeyed but if he should have said March out against the Christians tunc agnoscebant Imperatorem Coeli then they would have acknowledged no King but the King of Heaven The like we read of those Executioners who being converted to Christianity chose rather to dye themselves than to execute the Sentence of death pronounced against Christians Now the Case is the very same whensoever any man is perswaded that the thing commanded is unjust for to such a man it is so long unjust until he can be convinced that it is otherwise IV. But what if he doubteth But what if he be in doubt whether it be lawful or not is he to suspend or to obey The most received opinion is That he must obey Neither should he be startled at that notable Saying Qâ—od dubitas ne feceris forbear if thou doubtest For he that contemplatively doubteth may as to his practical judgment not doubt at all because he may be confident that in doubtful Cases he is bound to obey his Superiours And indeed that this distinction of a twofold judgment is of necessary use in many actions it cannot be denyed The Civil Laws not only of the Romans but of other Nations do not only indemnifie obedience in such a Case but will admit of no civil action against them that do it in obedience Many Magistrates saith St. Chrysostome we have heard of who being accused of unjust murthers have been punished But no man ever questioned the Executioner or made inquisition after him for the necessity of obeying his Superiour makes his fact excusable Is damnum dat qui jubet dare He say the Lawyers gives the damage that commands it And again Ejus vero nulla culpa est cui parere necesse est Neither can the fault be properly his who being commanded must obey And again Necessitas potestatis excusat That which is inforced on us by a power above us is pardonable Aristotle himself Nicom 5. Injustum facere sed non injustè among those who do unjust things but not unjustly reckons the Servant of a wicked Master For he is said to do unjustly from whom the action doth originally proceed Now because in a Servant there is no full deliberative power therefore the Servant though he do that which is unjust yet in doing that only which he is commanded he doth not unjustly According to that Proverbial Saying Dimidia virtute caret servire coactus He wants one half of goodness that must serve And that also One half of humane reason God withdraws From those who live under anothers Laws And that which Philo makes use of If serve thou dost what 's reason unto thee Vlpian out of Celsus
saith Servum nihil deliquisse qui Domino jubenti obtemperavit The Servant is not to blame whilst he doth but what his Lord commands him So in another place Velle non creditur qui obsequitur Imperio Patris vel Domini It is not believed to be his own act if he do it in obedience either to his Father or Master Mithridates freely dismiss'd the Servants of Attilius without any punishment at all though they were found guilty of the murder intended upon him Neither would he punish the Children of those that had rebelled against him because they were compelled to Rebellion by the Commands of others Themisthius in his Ninth Oration observes and that truly That Princes have always the resemblance of reason as Souldiers the like of anger The like is observed by Tacitus God hath allotted unto Princes the faculty of judgment but unto Subjects he hath left only the glory of obedience And as the same Tacitus relates Annal. l. 3. The Son of Piso was by Tiberius acquitted of the crime of sedition because what he did was by his Fathers command whom he durst not disobey Servus herilis Imperii non Censor est sed Minister De Controv. l. 3. c. 9. Cont. Faustum lib. 22. c. 74. The Servant is not to sit as Judge of his Masters Commands to dispute them but to obey them But in this case of War let us hear what St Augustine saith If a good man shall happen to war under a King though sacrilegious he may being commanded fight with a good conscience if observing the order of his Countries peace he be either assured that what he is commanded is not repugnant to the Law of God or doubtful whether it be or not so that haply as the iniquity of the command may render the King guilty so the necessity of obeying those commands for Orders sake may likewise render the Souldier innocent And again De Civit. Dei lib. 1. c. 26. If a Souldier under lawful Command shall in obedience thereunto kill a man by the Laws of his City he is free from murther nay unless he do it he shall be held as a Traitor to his own Country But if he shall do it of his own accord or without command he shall be guilty of murder That very Law that will punish him if he do it without command will likewise punish him if he do it not being commanded And from hence ariseth that so generally received opinion I mean as to Subjects That a War may be just on both sides that is in respect of them it may be on both sides void of injustice whereunto the Poet had respect when he said Quis justius induat Arma Scire nefas Who hath the juster Cause It 's hard to know Yet is not this opinion so generally received but that it meets with some difficulty For Pope Adrian defended the contrary which may be confirmed not by that Argument precisely which he urgeth but by this which seems to be more forcible namely That he that doubts contemplatively ought in his active judgment to chuse the safer part which is To abstain from War The Esseni The Esseni are highly commended for that amongst other things they bound themselves by Oath To hurt no man though they were commanded In imitation of whom the Pythagoreans did wholly abstain from War as being the Ringleader to destruction commanding murder as by a Law Neither will it much avail to say for the other opinion That it is dangerous to disobey For whilst both are uncertain for if the War be unjust it is no act of disobedience to avoid it he is not to be blamed that chuseth the safest But our disobedience in such things hath in its own nature less of evil than murther especially of so many Innocents It is storied by the Ancients That when Mercury being accused for killing of Argus excused himself for that he did it at the command of Jupiter the rest of the Gods notwithstanding durst not acquit him No more doth Martial Pothinus an Officer of Mark Antony's when he saith Antoni tamen est pejor quam Causa Pothini Hic facinus Domino praestitit ille sibi Worse than Pothinus 's Case is Antony 's This for himself that for his Lord doth dye Nor will that be of much greater moment which some men urge to the contrary namely That in case we admit that every private person may have liberty to judge of the justness of the War and accordingly either yield or deny their obedience the Commonwealth would soon be destroyed because for the most part it cannot be expedient for the State that the reasons of their counsels should be communicated to the Vulgar For although this may be true where the causes of the War are suasory only yet not where the War is justifiable for there the causes thereof should be published unto all that every man may judge of them and be satisfied in them What Tertullian sometimes said perhaps too confusedly ☞ of Laws in general may very appositely be said of these of War No Subject so faithfully observes a Law as he that knows the reason of that Law For every Law ought to give testimony of its own integrity to those from whom it requires obedience On the contrary Suspecta Lex est quae probari se non vult improba si non probata dominetur That Law that will not endure the tryal is held suspected as that which being disapproved yet exacts obedience is held as wicked Thus when Vlysses endeavoured to perswade Achilles to join with the Grecian Princes in a war against the Trojans Achilles urgeth them to declare the cause Papin What cause Greece hath so great a War to wage Declare whereby thou maist encrease our rage And hence it is that Theseus in the same Poet thus encourageth his Souldiers Go and fight boldly in a Cause so just For as Propertius well observ'd The justice of the Cause cannot but heighten the spirits and inflame the indignation of a Souldier whose courage droops so that he grows ashamed of his Arms when his Cause is nought Herod in his Oration to the Jews after the slaughter in Arabia thus bespeaks them Josephus I am willing to shew you how justly I have undertaken this War being provoked thereunto by the reproaches of our enemies which being known unto you must needs heighten your courage to a revenge It is very often verified what the Panegyrist observed So prevalent even amongst Armies is a good Conscience that the Victory seems properly to belong not to the numbers or valour of the men but to the justness and equity of the Cause And so some Learned Men have interpreted that of Gen. 14.14 as if Abraham had before the Fight instructed his Servants fully in the justice of his Quarrel And certainly the denunciation of War ought to be publick and the cause express'd that the whole Race of Mankind may judge of the equity
of it Prudence indeed as Aristotle notes is a Vertue proper to Princes but Justice belongs to men as they are men And therefore the reasons of their counsels as Princes are not to be communicated but the reasons of their actions as men may be proclaimed These things considered we conclude with Pope Adrian That where the Subject doth not only doubt the lawfulness of the War but by very probable Arguments is induced to believe that it is unjust especially if that War be offensive and not defensive he is bound to abstain Nay very probable it is That the Executioner whose Office it is to execute the penalty of the Law upon a condemned Malefactor should be throughly informed in the merits of his Cause either by being present at the whole Tryal or by hearing the confession of the person condemned that so he may be convinced that he whom he puts to death hath by the Law deserved it which in some places is observed Neither can there any more probable reason be assigned for that Hebrew Law whereby it was provided That when a Malefactor was to be stoned Deut. 17.7 1 Sam. 22.17 the Witnesses should go before the people and cast the first stone at him And for this Cause it was that the Kings Guards refused to fall upon the Priests of Nob at Saul's command being throughly convinced both of the sanctity of their Order and of the equity of their Cause And for this very reason it was that the third Captain 2 Kings 1.17 being sent by Ahaziah unto Elijah would not lay violent hands upon him And for the same reason it was that many publick Executioners amongst the Jews being converted to Christianity renounced their Offices as being very dangerous if we may give credit to the Martyrology Lib. 1. c. 7. and to venerable Bede V. Extraordinary Taxes to be exacted instead of obedience in this Case But in case the Subjects minds are not satisfied concerning the equity of the Cause by their Princes Declaration then 't is the Office of a good Magistrate rather to impose some extraordinary Taxes upon them than to compel them to serve him in his Wars unsatisfied especially when he may be supplied with men otherwise Now whether these Souldiers do serve him with a good or evil intention is no matter for a good Prince may make use of both as God himself doth of Satan and his Disciples as Instruments to bring about his own most Sovereign purpose or as a poor man may and doth make use of Jews and Extortioners to supply his present wants and that without sin Nay though there be no doubt of the lawfulness of the War yet it is not fit that Christians should be compelled to fight against their wills seeing that to abstain from War even then when it is in it self lawful hath always been required of Church-men and Penitentials to preserve them in the greater sanctity and is in all others many ways commendable When Celsus upbraided the Christians for refusing to go to war Origen apologized for them thus To those who being Vnbelievers would inforce us to fight for the Commonwealth and to destroy men we shall give this Answer That even their own Idol-Priests and those that attend upon the service of their reputed Gods do keep themselves unstained with humane blood that so they may offer up their Sacrifices for the whole Nation with clean and unpolluted hands Neither in case there should arise a War are these men to be listed in their Armies And if this be not done without reason how much more may they be said after their manner to fight who being Priests to the Most High God endeavour to preserve themselves free from bloud and rapine that so whilst others are polluted with spoil and slaughter they may wrestle with God himself by constant and incessant prayers for the welfare of them that make war justly and for the safety of them that govern righteously Apoc. 1.6 Wherefore Origen calls all Christians Priests by the example of the Holy Scriptures 1 Pet. 2.5 VI. When Subjects may justly engage in an unjust War But yet I believe that a Case may so fall out that in a War not only doubtful but manifestly unjust it may be just for Subjects in some measure to defend themselves For seeing that no enemy though prosecuting a just War can have any true and internal right to kill such Subjects as are innocent and no ways accessary to the War unless it be either for necessary defence or by consequence and not intentionally for such Subjects are not liable to punishment it follows That if it evidently appears that the enemy comes with a full purpose not to spare the lives of such hostile Subjects when with safety to himself he may then those Subjects may by the Law of Nature defend themselves which right neither doth the Law of Nations take from them neither will we say That such a War is on both sides lawful for we dispute not here concerning the legality of the War but of a certain and determinate action in the War which action though it proceed from one that otherwise hath a sufficient right to make war yet is unjust and may therefore be justly repelled The End of the Second Book Hugo Grotius OF THE RIGHTS OF WAR and PEACE BOOK III. CHAP. I. Of certain General Rules shewing what by the Law of Nature may be lawfull in War wherein also he treats both of Fraud and Lies I. The order and method of the Book following II. The first Rule whatsoever is necessary to the end is lawfull in War explained III. The second Rule A Right in War may arise as well from Causes subsequent as from the beginning of the War IV. The third Rule that in War some things may be done indirectly without injury which if by themselves and intentionally done were unlawfull with a caution V. What may lawfully be done to such as supply the enemy with things needful this explained VI. Whether in War Fraud be lawfull VII That Fraud in its negative act is not of it self unlawful VIII Fraud in its positive act is either by such outward acts as admit of several constructions or by such as signifie as it were by arguments fraud in the former sense lawfull IX Of that in the latter sense the question is difficult X. The use of words in another sense than that wherein we know they are understood not always unlawfull XI The form of a Lye as it is unlawfull consists in the repugnancy it hath with anothers Right this explained XII That it is lawfull to speak that which is false to Children and Madmen XIII So also when he is deceived to whom our speech is not directed and whom without speech we may lawfully deceive XIV And when we are assured that he to whom we speak is willing to be so deceived XV. And when he that speaks exerciseth that Supereminent Power that he hath over his own
of St Ambrose Histories will inform us And although Almighty God doth so sometimes yet ought that to be no example to us because of that full and absolute Right of Dominion that he hath over us which he hath not granted unto us to have one over another and yet even God himself who is Lord Paramount over all Mankind doth often spare a World of wicked and ungodly men for a very few that are good thereby manifesting his equity as he is a Judge as sufficiently appears by that sweet Colloquy between him and Abraham concerning Sodom by which general rules it is easily collected Gen. 18.23 c. how far our Right extends in War against our Enemies by the Law of Nature V. What we may do against them that supply our Enemies with what they want And here another Question is usually started namely what we may lawfully do to those who are not Enemies or at least will not be so reputed and yet do daily supply our Enemies with such things as they need Great contests have antiently been and now are about this matter some stifly maintaining the rigour of the War others as earnestly contending for the liberty of Trade and Traffick But first we must distinguish of the things wherewith the Enemy is supplyed for some things there are that are of no use but in War as Arms and Ammunition some things there are which are of no use at all in War Procop. Goth l. 1. as things serving for pleasure only And lastly some things there are that are useful both in Peace and War as money Victuals Apparel Ships and materials for Shipping At Athens it was prohibited to export Flax Bottles Timber Wax Pitch and the like Concerning things not useful but in War it is true what Amalasuintha told the Emperour Justinian He is to be esteemed as an Enemy that supplies the Enemy with things necessary for War as to the second sort of things there is no just cause of complaint So Seneca thought The favour of a Tyrant I may purchase in case that which I give him do neither increase his power to do mischief nor confirm that which he already hath for such things as these a man may give without encreasing the common calamity I will not saith he supply him with money whereby he may keep his Army in pay but if he require Marble Perfumes or costly Apparel these being but the fuel of his lust can hurt no man but himself Soldiers and Arms will I not furnish but if he will accept of the best Artists I have to make Scenes for Masks and Plays I shall willingly part with them Thus did Hyram gladly furnish King Solomon with Timber and all kind of curious Artificers that might encrease the delight he took in sumptuous buildings thereby to divert him from pursuing with his vast Riches his Fathers conquests in Syria So also St. Ambrose De Off. lib. 1. c. 30. to contribute to him that conspires against his own Country is no commendable liberality As to the third sort of things which are of doubtful use we must distinguish of the present state of the War For if I cannot defend my self unless I do intercept those things which are sent to mine Enemy necessity will give me a good Right to them yet upon this condition that I make restitution unless there be sufficient cause to the contrary Again if the supply that is sent in do hinder the execution of my defence of the design and he that sends it might have known that it would so do As for example If I have besieged a Town and blocked up its Ports so that I may justly expect the surrender of it or a Peace in this Case he that shall knowingly send in relief is bound to give me satisfaction for the loss I sustain thereby no less than he that takes a Prisoner out of Custody that owes me a just Debt or instructs him how to make his escape thereby to defraud me and proportionably to that loss I sustain I may seize his goods and posess them as mine own till I am satsfied and if the damage be not already given but intended only then have I a Right by the detention of those supplies to compel him that sent them to give security either by pledges hostages or the like that he will not for the future send any more supplies to the besieged But in Case the wrongs done me by mine Enemy be manifestly unjust and that he by those supplies do abet and encourage him in his unjust War then he shall not only be bound to repair my loss civilly but also criminally as he that rescues a notorious malefactor in the very presence of a Judge and for this Cause it is lawful for me to do unto him agreeable to his offence according to those rules which we have already set down for punishments And so long as we contain our sâ—lves within these bounds we may make War upon him and for this Cause do they that make War usually send out Declarations and Remonstrances to other Nations as well to insinuate unto them the equity of their Cause as also what probable hopes they have to recover their Right Now the reason why we refer this matter to the Law of Nature is because we find nothing certainly determined in Histories by the voluntary Law of Nations as to it There is a Book written in Italian Intituled Liber consulatus Maris concerning the Government of the Seas wherein are recited the Constitutions of the Emperours of Greece and Germany the Kings of France Spain Syria Cyprus the Baleares Venetians and Genoese wherein are handled two hundred seventy four Questions upon this Subject where we shall find it adjudged That if the Ship with its freight be both the Enemies then there is no doubt but both are lawful prize If the Ship belong to such as are at peace with us and the goods to our Enemies we may enforce them to put into any of our Allies or our Ports there to unlade the goods yet so that we pay the Master of the Ship for the freight of them But in Case the goods belong to our Friends and the Ship to our Enemies then is the Ship lawful prize and to be agreed for which if refused they may be compelled into any Harbour of our Friends and withal to pay us for the freight of those goods In the Year 1438. There being War between the Hollanders and the City of Lubeck with other Cities Confederate situate upon the Baltick Sea and the River Albis it was in Holland adjudged in full Senate That the Goods found in an Enemies Ship if it did appear that they belonged to others were no lawfull prize and this was there from thence established for a Law and so pleaded by the Danish King in the year 1597. who thereupon sent his Embassadors into Holland to assert his Freedom to transport his Goods into Spain notwithstanding the bloody War which the
a City Lib. 10. Ep. 1. So likewise Cicero in another place There were neither Laws nor judgments nor any sign to shew that there was a Commonwealth Aristides in his perswasive Oration to the Rhodians for Peace proves that many good Laws may very well consist even with Tiranny And Aristotle informs us Lib. 5. de rep That he that strains the power either of the Nobles or of the People to too high a key marrs the Harmony of good Government and first corrupts the Commonwealth and then destroys it Let us illustrate this by examples That they who are taken by Robbers are not made slaves was as we have said the opinion of Vlpian But if a Roman Citizen was taken by the Germans or Parthians he lost his freedom and yet among the Germans Lib. 6. the Roberies that were done without the bounds of the City were blameless which are Caesars own words Tacitus records it of the Garamantes that they were Gens Latrociniis foecunda sed Gens tamen A Nation wholly addicted to Roberies but yet a Nation though The Illirians spoiled all they met at Sea without regard but yet to him that subdued them was a triumph granted which was denied to Pompey who had purged the Sea of Pirates So great is the difference between a Nation though corrupt and a company of men combined only to do mischief III. Yet there often happens a change Yet a change doth sometimes happen not in particular persons only as in Jephtha Arsaces Variatus who of Captains over Thieves and Robbers became lawful Commanders but in Societies also As when a company of Robbers or Pirates shall forsake that wicked kind of life and unanimously betake themselves to a Civil Government an example whereof we have in the Mamertines St. Augustine concerning Robberies speaks thus When this mischief by the concourse of men of desperate fortunes grows so great that they betake themselves to some certain place to inhabit and there build Cities raise Forts and thereby are able to subdue Nations then it assumes the title of a Kingdom or free State Not as St. Augustine goes on De Civit. Dei l. 4. c. 4. that they cease to be what before they were but because what they formerly did through fear and therefore secretly they now do with boldness and confidence It was a bold answer that Diomedes the Pirate made to Alexander the Great when he demanded of him the reason why he so troubled the Seas For the same saith he that thou dost the World But because I rob with one single Ship I am called a Pirate whereas thou because with a great Fleet art therefore stiled an Emperour But that which makes this change according to what is here intended is not so much their impunity as their repentance For this St. Augustine requires that deserting their wicked courses they live together under some wholsom Laws according unto which justice may be administred as well to strangers as natives IV. A solemn War ought to be between such as have Sovereign Power Who they are that have soveraign Power we have already shewed from whence we may also collect That he that hath that power but for a part may for that part make a just War much more they who are not Subjects but Confederates though on Articles very unequal Thus were all the Wars between the Romans and their Confederates the Volscians Latines Spaniards and Carthaginians just though their Confederacies were made on very unequal terms as we may collect out of Histories V. A solemn War must be denounced Neither is it sufficient to denominate a War in this sense just that it is made between such as have soveraign Power But as we have heard before it must be publickly declared yea so publickly that both parties may have equal knowledge thereof which Ennius calls the proclaiming of War Bellum inferre non ante denuntiatum injustum est To make War before it be denounced is unjust Jos Ant. l. 15. to exercise Hostility without denouncing War or requiring satisfaction is not done like a Christian nor allowable by the Law of Nations as the English Ambassador told the Emperour of Russia And therefore as Cicero well observes To determine of the equity of a War Camd. Eliz. an 1582. was a Right proper to the Colledge of Heralds which was amongst the Romans held very sacred thereby giving us to understand that no War could be just but that which was made either for the recovery of things unjustly taken away or publickly decreed and solemnly proclaimed Not so clear is that of an Ancient Writer quoted by Isidore That War is just which is made by publick Edict either for the recovery of our own or for repelling an invading enemy Livy describes a just War thus That War which is openly decreed by publick Edict and solemnly denounced is just that is if it be so done by such persons as have the supreme Authority And the same Authour having first declared That the Epirots had wasted the Territories of Athens saith That the Athenians were first highly incensed against the Epirots and afterwards by the Decrees of their Cities first voluntarily denounced and then waged against them a just War VI. Wherein what is required by the Law of Nature and what by the Law of Nations For the clearer understanding of this and the like places which concern the denuntiation of War we must accurately distinguish what things are due by the strict Law of Nature and what things are honest and commendable though not by nature due Thirdly What things are by the Law of Nations required to the obtaining of the proper effects of the right of Nations and lastly What things do arise from the peculiar Laws and Customs of some people By the Law of Nature where force cannot be repelled but by force and where punishment cannot be demanded but of him who is the Offender there the denouncing of War is needless 1. The Invader may be repelled without the denouncing of War Sthenelaidas in Thucydides pleads thus †Lib. 1. Non est quod verbis judciis disceptemus ultra verba laesi 'T is vain to contest with words and arguments when the wrongs which we manifestly sustain are more than verbal Thus likewise do the Plateans in the same Authour plead * Lib. 3. By that Law that is received by all Nations it is lawful to repel him by force that shall invade us like an enemy So Flaminius in Diodorus †Excerp Peiresianis calls all both Gods and men to witness That according to this Law the King and not himself was the Aggressor And if so then as Latinus in Halicarnassensis notes Every man that is by a War damnified may right himself upon him that began it And as Aelian out of Plato Quod ad propulsandam vim suscipitur Bellum Lib. 1. non à Caduceatore sed à natura indicitur That war that is made against an Invader needs
right And this other Form Concerning which matters differences and causes Remonstrance hath been given by the Chief Herald at Arms of the People of Rome to the Chief Herald at Arms of the Ancient Latines and of the People of the Ancient Latines but yet neither have they paid given or done any of those things which they should have paid given or done wherefore I do judge agree and ordain That satisfaction be sought by an open and a just War Whereunto we may add a third Form which follows Because the people of the Ancient Latines have injured the people of Rome and failed in what they ought to have done and because the people of Rome have decreed to make war against the Ancient Latines therefore I and the people of Rome do denounce and make war against the Ancient Latines Livy lib. 31.36 But yet that the denouncing of War is not in this case as I have said precisely necessary is plain by this That it is sufficient if it be proclaimed but at the next Garrison For thus it was adjudged by the Heralds as well in the case of Philip of Macedon as afterwards in the case of Antiochus Since he is first to denounce the War that seeks satisfaction by the War Nay the War that the Romans made against Pyrrhus was denounced but to one of his Souldiers and that in the Flaminian Cirque only Besides this also gives an occasion to another needless Observation That War is sometimes solemnly denounced on both sides as that Peloponesian War which was made between the Corcyrians and the Corinthians whereas had it been proclaimed but on one side only it had been sufficient VIII 3. In denouncing War what is required by the Civil and what by the law of Nations That Heralds were usually sent to denounce War among the Graecians clad with party-coloured Coats and armed with a bloody Javelin by the Aequicoli first and afterwards in imitation of them by the Romans That there should be a solemn renunciation of all former friendship and alliance if any such there were after thirty dayes demand of reparation for damages received And that the King of the Heralds should again thrust his Spear into the enemies ground as Servius upon the ninth of Virgils Aeneads records and the like Caducaeus whence derived see Plinys Nat. Hist l. 29. c. 3. and Servius upon the 4th and 8th of Virg. Aeneads are not dictates of the Law of Nations but are Ceremonies arising from the Customs and Institutes of some particular Nation many of which Arnobius confesseth were antiquated in his time and some of them grown out of use even in Varro's The third Punick War was as soon made as denounced and it was the Opinion of Mecoenas in Dion that some of those Ceremonies were peculiar to popular States only IX War denounced against a Prince is denounced against all that adhere unto him War being denounced against him that hath the Supreme Power in any Nation is presumed to be denounced also against not only all his Subjects and against all that shall afterwards adhere unto him as being his Associates And this is the meaning of our Modern Lawyers when they say Diffidato Principe diffidati sunt omnes adhaerentes War Proclaimed against a Prince is proclaimed also against all that shall side with him For Diffidare with them is to proclaim War which is to be understood of that very War which is made upon him against whom it is denounced As when the Romans denounced War against Antiochus they thought it needless to denounce it against the Aetolians also seperately Livy lib. 36. who had publickly espoused Antiochus his quarrel for say the Heralds The Aetolians have spared us that labour by denouncing War against themselves X. But not by themselves considered But that War being ended If any other either Prince or People are to be invaded for Succours sent unto our Enemies during that War we ought to denounce that War anew if we expect the effects proper unto a Just War by the Law of Nations For such a Prince or State are not then to be looked at as Accessaries but as Principals Neither is it the prosecution of the old War but the beginning of a new Whereunto as the Law of Nations requires a solemn indiction so by the Civil Law of the Romans was it not to be undertaken untill it had the Warrant of a new Decree from the People Wherefore the War that Manlitis made against the Gallo Graecians and that which Caesar made against Ariovistus were not justifiable by the Law of Nations And whereas when the consent of the People of Rome was asked to make War against King Antiochus the question was put in this form Livy lib. 36. cap. 42. Is it your Will and Pleasure that War be made against King Antiochus and against all that shall side with him Which was also the form used in the Decree against King Perseus It ought to be understood with this limitation namely so long as that War shall continue with those two Kings and with those who are truly and really engaged in it with them XI 4. Why denunciation is necessary to some effects of War in a Solemn War Now the reason why a Solemn Denunciation is so necessarily required unto such a War as by the Law of Nations is Just is not as some think to prevent deceit and treachery for this is better referred to Magnanimity than to Justice Thus have we read of some Nations so confident of their own strength that they have appointed the time and place long before when and where they would give their Enemies battle As Plutarch tells us that the Romans did to King Porsenna †Alb. Gent. lib. 1. cap. 2. Thus Thomas Earl of Surrey sent an Herald to James the fourth King of Scotland to let him know that on the Friday following he would give him Battle if he would stay so long in England and Thomas his Son then Lord Admiral sent the King word that he might find him in the Van of his Army as Herbert Records it in his History of Henry the Eighth The Turks two dayes before Battle make many great fires Chalcoc lib. 7. Lib. 3. de Ira. cap. 2. pag. 43. But the true reason is to remonstrate unto all Nations That the War is made not rashly or upon any private ends but with the Consent and Approbation of both Nations or at least of those who have the Supreme Power on both sides For from hence ariseth those effects proper to a Just War which in a War made with Pyrats and Robbers or in a War made by a Prince against his own Subjects will not be allowed And therefore Seneca did well distinguish between a War denounced against Foreigners and that made against Subjects or Citizens XII Which are not in other Wars Now where some note and by examples teach that even in such Wars as these whatsoever is taken away immediately becomes his that
that forbad it yet could he never attain unto that perfection of holiness that the Gospel seemed to commend unto us So for a believing Husband to put away his unbelieving Wife is lawful as St. Augustine affirms which with what circumstances is to be verified it is not to our purpose in this place to discuss but yet he may and that haply more laudably retain her Wherefore he adds Both are equally lawful according to the rules of Divine Justice for neither of them are prohibited by God but yet both are not equally expedient Vlpian concerning him that having sold his Wine and covenanted with the buyer that if he fetcht it not by such a day it should be lawful for him to pour it out saith That although he may do it yet if he do it not he is the more to be commended Secondly this word Lawful may be taken for that which is not punishable by humane Laws although it consist not with Piety or the rules of Morality thus in many Countries fornication is lawful that is not punishable Amongst the Lacedemonions and Aegyptians theft was lawful And in Quintilian we read That there are some things which though not in their own nature commendable yet that are by the Laws tolerated as by the Laws of the twelve Tables The body of the Debter might de divided among the Creditors all which though in themselves unfit and unseemly yet are by some Lawgivers permitted to avoid greater inconveniencies Licentia plerumque est tentatio Disciplinae Licence saith Tertullian is for the most part but the touchstone of Discipline All things saith S. Paul are lawful but all things edify not Now this acception of the word Lawful is somewhat improper as Cicero testifies in his Tusculans Lib. 5. where speaking of Cinna who had been four times Consul and had caused divers of the chiefest of the Roman Nobility to be slain saith thus Shall we esteem this man happy nay on the contrary I think him miserable not because he committed these things but because he so governed the Commonwealth that he might lawfully commit them not that it is lawful for any man to sin Sed sermonis errore labimur dum id licere dicimus quod cuique conceditur But we are misled through the common errour of speech whilst we pronounce that lawful which is only permitted Summum jus summa injuria Whence Columella concludes That we ought not to prosecute our revenge to the utmost of what we may for extreme severity is too near a Neighbour to extreme cruelty Yet notwithstanding though this acception of the word Lawful be not so proper yet is it among the Romans very frequent as will appear by the same Cicero who thus bespeaks the Judges Orat. pro Rabirio Posthumo Quid deceat vos non quantum liceat vobis spectare debetis Ye that are Judges ought to consider not so much what in strictness of Law ye may do but what in every case is most fit and convenient to be done for if you regard your own power only ye may put to death even whom you will In the same sense as it is usually said of Kings That they may do even what they please because they are exempted from the lash of humane Laws yet is that advice which Claudian gives unto his Prince much more worthily to be by all Princes received Nec tibi quid liceat sed quid fecisse decebit Occurrat Resolve to do Not what you may but what becometh you Musonius highly blames those Princes who study more their own Prerogatives Declam lib. 3. cap. 5. than the Good of their Subjects and that say thus and thus I can do rather than thus and thus I ought to do Hence it is that we find these two words Licet and Oportet it is lawfull and it behoves placed sometimes in opposition one to the other Lib. 30. As in Ammianus Marcellinus Sunt aliqua quae fieri non oportet etiam si licet Some things there are which are not fit to be done though lawfully we may do them So in Pliny's Epistles Things that are dishonest we must avoid not as they are unlawfull but as they are shamefull And as Cicero himself affirms the same Est enim aliquid quod non oporteat etiamsi licet Orat. pro Balbo Something 's are not fit to be done though lawfull And in his Oration for the defence of Milo he distinguisheth between fas and licet attributing to the former that which is agreeable to the Law of Nature and to the latter that which was agreeable to the Laws of particular Countries So Quintilian the Father in one of his Declamations tells us Orat. 251. That It is one thing to look strictly to what is a mans Right i. e. to what a man may do and another thing to respect that which is just Aliud est spectare jura aliud justitiam III. In War the effects are lawfull generally that is not punishable In this sense therefore it is lawfull for one Enemy to hurt another both in his Person or in his Estate It is lawfull I say not only for him that makes War upon a Just ground and that in the prosecution of that War contains himself within those bounds which by the Law of Nature are prescribed him as we have already said but for both parties and that without distinction So that he that doth thus injure his Enemy though he be apprehended in another Princes Dominion yet can he not be proceeded against as an Homicide or as a Thief neither can any other Prince for this only Cause make War upon him and in this sense is that of Salust true By the Law of Arms all things are lawfull to the Conquerour IV. Why such effects were introduced Now the Reason of this so great a licence granted by all Nations is this because when two Nations are at War for any other Nation to judge where the Right is had been dangerous for by that means that Nation may quickly be intangled in the others War as the Marseillians pleaded in the Cause of Caesar and Pompey And therefore they confest That they had neither Wisdom nor Power sufficient to determine whether of them had the Juster Cause Besides even where the War is manifestly Just it is a very nice thing by any outward token to judge which is the Just Rule or Measure either of defending our selves of recovering our own Right or of exacting punishments So that it is agreed that it is much better to leave it to the Honesty and Conscience of the Princes engaged to determine of these things among themselves than to refer it to the arbitrement of others Thus did the Achaians demand of the Roman Senate How it came to pass that what had formerly been acted by the Right of War should now fall into debate Now besides this of licence and impunity there is another effect of a Just and Solemn War namely
Dominion whereof we shall treat hereafter V. Testimonies of these effects But the licence that a Just War gives to one Enemy against another extends either to his person or his Estate And first to the person of an Enemy and hereof we have many testimonies recorded in the most approved Authors The Greek Proverb acquitteth the Souldier for what he doth against the person of an Enemy in the time of War in that it saith He guiltless is that doth his Enemy kill Euripides The custom of the ancient Grecians was not to wash nor to eat with an Homicide much less to joyn with him in any Duties that were holy and yet with him that in the War had killed an Enemy it was lawfull And in all Authors we read That to kill was Jus Belli the Right of War Marcellus in Livy justifies himself by this Right Livy 26. Id. 21. Lib. 28. Quicquid in hostibus feci jus belli defendit Whatever I did among mine Enemies the Law of Arms doth defend me in And so doth Alcon justifie himself and his Soldiers to the Saguntines Suffer your Wives and your Children to be dragged about and ravished before your faces according to the licence given in Wars for better it is with patience to endure those out-rages than that they should put you all to the sword And the same Livy having declared the general Massacre of the Astapenses adds That it was done by the Right of War Cicero likewise in his Oration for King Dejotarus pleads thus And why O Caesar should he be suspected as thine enemy who could not forget that whereas thou mightest have adjudged him even to death by the Law of Arms thou madest both him and his Sons also Kings And in another place he confesseth That whereas Caesar Pro M. Marcel by the Right of a Conquerour might have sentenced them all to death Lib. 7. he out of his Princely Clemency had preserved them Caesar in his Commentaries acquainted the State of the Hedui That he saved their people whom by the Law of Arms he might have slain Josephus also in his Jewish War accounts it an honourable death to dye in the War but he means to die by the Law of Arms or at the Will and Pleasure of the Conquerour Of the same mind was Papinius Non querimur caesos haec bellica jura vicesque Armorum Nor for our slain we grieved are This is the Law of Arms the chance of War Yet we must observe That when these Authors seem to justifie such acts of cruelty by the Right of War they do not altogether free them from sin but from being punishable as sins Annal. lib. 1. as will appear by other places in the same Authors It was well said of Tacitus In pace causas merita spectari ubi bellum ingruat innocentes ac noxios juxta cadere Peace doth usually distinguish of Causes and Merits and accordingly dispenseth rewards and punishments but in War the nocent and innocent do fall alike And in another place speaking of a Common Trooper who demanded of his Captains a Reward for killing his own Brother in the head of his Enemies Troops he saith Nec illis aut honorare eam caedem jus hominum nec ulcisci ratio belli permittebat Neither would the Laws of humanity suffer them to reward so unnatural a murther nor the Law of Arms permit them to punish it For that which Seneca observes is very true Troad See the second Book chap. 1. sect 1. Quodcunque libuit facere victori licet What e're he will that may a Victor do And what he notes in his Epistles Epist. 96. Quae commissa capite luerent tum quia paludati fuerunt laudamus What in another we punish with death that in a Souldier under command we commend wherewith accords that of St Cyprian Epist. 2. Homicidium cum admittunt singuli crimen est virtus vocatur cum publicè geritur That which in a time of peace is a capital crime in the time of War is accounted valour but it is not the nature of their fact but the exorbitancy of their cruelty that renders Souldiers unpunishable And a little after he adds Consensere jura peccatis coepit esse licitum quod publicum est The Laws do connive at sin which is therefore sometimes reputed innocence because licensed by publick authority And in this sense it is true what Lactantius saith of the Romans Institut 4. c. 9. Pharsal that they did Legitimè injurias inferre Infest others lawfully As that also of Lucan Jusque datum sceleri which we may translate in the words of David Wickedness is practised as by a Law VI. All that are found among enemies are liable to the effects of War But this Right of licence or impunity in War extends it self very far for it reacheth not only to such as are actually in Arms nor unto such only as are Subjects to these Princes against whom the War is made but unto all such as reside within their Territories or Dominions as may appear by that form so often used in Livy Hostis sit ille quique intra praesidia sunt ejus Let him and all that live under his protection be held as enemies Livy lib. 37. And no marvel seeing that by all such we may be damnified which in a War that is lasting and universal is sufficient to justifie the licence here spoken of otherwise than in Reprizals or Pignorations which as I have said was at the first introduced after the manner of Taxes for the payment of publick debts Wherefore it is not to be wondered at if as Baldus notes This licence in War be much greater than that in Pignorations Nor is there any question but that Strangers coming into the Enemies Territories after the War is proclaimed and began may be persecuted as Enemies VII Though they come before the War began But as for those that went thither before the War was proclaimed it is thought fit by the Law of Nations that they should have some time allowed them to depart thence with their Goods for so we read of the Corcyraeans That before they laid close siege to Epidamnum Liv. l. 25. Thucyd. lib. 1. they gave warning to all strangers to depart or to be held as Enemies VIII But natural Subjects every where unless protected by another Prince But such as are true and natural Subjects if we have respect only to their persons they may in all places whatsoever be persecuted because as we have already shewed when War is decreed and denounced it is declared to be against a Prince or Nation and the People thereof So the Romans in their Decree against King Philip did Will and Command that War should be proclaimed against him and the Macedonians under his Dominions Now he that is an Enemy may by the Law of Nations be every where persecuted according to that of Euripides Vbicunque prensum jura laedi hostem sinunt
examples in all Histories as namely by the example of Achilles in Homer of Mago and Turnus in Virgil which do therefore stand yet upon record to justifie the like practice hereafter by the Right of War For St. Augustine himself commending the Goths for sparing Suppliants De Civit. Dei c. 2. and such as fled unto Temples for protection yet saith That which by the Right of War they might do they thought unlawful for them to do Neither are they always received to mercy that beg it witness the Grecians that sided with the Persians against Alexander at that great Battel fought at the River Granicum Ann. 12. And the Uspenses in Tacitus Who craving leave but to depart their City with their Bodies free were rejected by the Conquerours because it would have been thought cruelty to have killed them in cold blood after they had yielded themselves and hard to keep a Guard upon so great a multitude therefore they chose rather to let them perish by the Sword according to the Law of Arms. Observe here also the Right of War XII Yea and to such as yield without conditions Neither do they always find mercy that surrender themselves without any condition at all but even these are sometimes put to death as the Princes of Pomeria were by the Romans the Samnits by Sylla the Numidians yea and Vercingentoriges himself by Caesar Nay it was almost the perpetual practice of the Roman Generals upon the dayes of their Triumph Dion 45. Livy 2. Cicero in Ver. 5. Livy lib. 28. Annal. 1. to put to death all the Captains and other Commanders whether they were taken Prisoners during the War or had yielded themselves as Cicero in forms us in his fifth Oration against Verres which both Livy and Tacitus confirm Nay the same Tacitus records it of Galba That he caused the tenth Man to be killed of those whom upon submission he had received to mercy And Caecina upon the surrender of Aventicum caused Julius Alpinus to be put to death as being the principal instigator of the War but the rest of the Citizens he left to either the mercy or the severity of Vitellius XIII This right not to be referred to other causes It is the usual custome of Historians to ascribe the cause of this cruelty and outrage against Captives or Suppliants either to the like cruelty done by them unto others or to their obstinacy in resisting them But these are rather pretences than just causes for Retaliation properly so called is not to be executed but upon the same persons that offended as hath been already said where we discourst concerning the Communication of Punishments But contrariwise in War this Right of Retaliation is often exercised on those who were in no measure guilty of the crime for which they are said to be punished This custome is thus described by Diodorus Siculus The chance of War being on both sides equal neither party can be ignorant of this that in case they be vanquished what they intended to do against their Enemies had they been Victors that they must be contented to suffer from them Thus did Philomelus the Phocensian General perswade his Enemies to refrain from a proud and insolent revenge by threatning to exact the like in case the Victory fell on his side But as to the other pretence which is usually pleaded namely an obstinate endeavour to defend their own party Goth. l. 1. it is so far from being punishable as a crime as the Neapolitans alledged to Belisarius in Procopius that according to the Ancient Roman Discipline it was ever accounted a capital crime to do otherwise especially if we were engaged therein either by some natural obligation or by an honest and deliberate choice for in these cases they seldome admitted of any excuse were the fear or danger never so great Polyb. l. 1. 5. Liv. lib. 24. Praesidio decedere apud Romanos capitale est To desert a Garrison saith Livy was ever accounted among the Romans a capital crime Every man therefore may make use of this rigour and severity so far as he sees it may conduce to his own advantage and is therein justified before men by that common right and licence of Nations whereof we here treat XIV It extends also to Hostages This right or licence doth sometimes extend it self to hostages and that not only to those who voluntarily give themselves as Pledges for the performance of Articles agreed upon but unto those also who are delivered up by others Thus we read of two hundred and fifty hostages slain by the Thessalians and of three hundred slain by the Romans Plut. de claris Mulierib Dionys 16. Tac. An. 12. 1 Mac. 13.17 Hist 4. where also by the way we may observe That sometimes Children are admitted as Hostages as by the example of Simon the Maccabite we may learn and sometimes Women as by the Romans in the time of Porsenna and by the Germans in Tacitus XV. To kill by poyson unlawful As there are many things tolerated by the Law of Nations in this sense that we now speak of which by the Law of Nature are prohibited so are there many things forbidden by the former which by the latter are tolerated For if we respect the Law of Nature only if a man have deserved to be put to death it matters not much whether it be by the Sword or by Poyson by the Law of Nature I say though otherwise it be far more noble so to invade another mans life as to give him an equal power to defend himself But this is not due unto every man that hath deserved to dye But by the Law of Nations if not of all yet of the greater and better part of them it is not lawful to take away the life no not of an Enemy by poyson which Custom was introduced for a general good lest dangers which are too rife and frequent in War should be beyond all measure multiplied And very probable it is that this Law was first enacted by Kings and Emperours whose lives as they are principally guarded by Arms so are they most easily endangered by poyson were it not for the severity of the Laws and the sear of infamy Lib. 42. This Livy calls a clandestine villany speaking of Pyrrhus And Claudian concerning the design of Pyrrhus's Physician who offered Fabritius to poyson him calls it a detestable act Offic. l. 3. not fit to be spoken so doth Cicero glancing at the same Story which offer of the Physician the Consuls not only rejected but discovered unto Pyrrhus not so much for his sake as to prevent the reproach and scanâ—al that might ensue to themselves lest it should be said of them That whom they could not conquer by true valour they had by treachery destroyed Plut. vit Pyrrhi Or as Aulus Gellius recites the Epistle of the Consuls out of Claudius Quadrigarius Communis exempli fidei ergo visum est We think it
make use of the treachery of others in all other cases doth not allow of it in this case is the very same that was before given in the case of poyson namely To restrain the dangers that attended Kings and Princes When one told Eumenes Just lib. 14. That his Enemies had hired one to kill him He would not believe that any General or inferior Captain would give so ill an example against himself And in another place the same Justine declares Just Lib. 12. That when Bessus had killed King Darius it was not to be endured for examples sake because it was the common cause of all Kings For as Seneca well observes Regi tuenda est maxime Regum salus A Kings chief care is the defence of Kings In a solemn War and amongst those who have a right to denounce a solemn War it is not lawful by the Law of Nations privately to kill an Enemy but where there is no solemn War it is by the same Law of Nations accounted lawful that is unpunishable Annal. l. 11. Tacitus denies peremptorily That the Plot that was laid against the life of Gannascus was at all Lib. 7. degenerous because he was a Traitor And Curtius was of opinion That the guilt of Bessus in killing Darius did make the treachery of Spitamenes appear the less odious for that nothing could be thought wicked that was done against a Regicide So likewise Ammianus concerning Florentius and Barchalba who had surprized Procopius the Traitor Si Principem legitimum prodidissent vel ipsa Justitia jure caesos pronunciaret si rebellem oppugnatorem internae quietis ut ferebatur amplas ei memorabilis facti opportuerat deferri mercedes If it had been their lawful Sovereign that they had betrayed the Laws had justly sentenced them to death but if he were a Rebel or a Disturber of the peace of his own Country as was said ye ought to give him a reward worthy of so memorable a fact Thus is Artabanes highly commended in Procopius for killing Gontharides as we may read at the latter end of the second of his Vandal History So perfidiousness or treachery against Thieves and Pyrates though it be not altogether blameless yet is it not by the Law of Nations punishable because committed against such as are Enemies to humane Society But what if they that are sent to kill an enemy privately do owe him no faith But not if he owe him no faith But not if the person sent owe no faith to him whom he is sent to kill nor are any ways obliged unto him Surely then by the Law of Nations it is lawful for them to kill him if they can even in his own Quarters Thus Pipin Father to Charles the Great of France attended with one only of his Guard passed the Rhine and killed his enemy even in his own Chamber The like was attempted by one Theodotus an Etolian upon Ptolomy King of Egypt which Polybius commends as no unmanly attempt Such also was that Heroick enterprize of Q. Mutius Scaevola who was in Plutarch's esteem A man accomplished with all vertuous endowments which attempt he thus defends Hostes hostem occidere volui I being an Enemy would have killed an Enemy Livy l. 2. Lib. 3. c. 3. Porsenna himself acknowledged this to be an act of true valour Valerius Maximus commends it for a brave and gallant resolution So doth Cicero in his Oration for Publius Sextus because to kill an Enemy wheresoever we find him is lawful both by the Laws of Nature and Nations neither doth it make any difference how many they are that either thus act or suffer Six hundred Lacedemonians we read of that with Leonides their King marched directly through the Camp of five hundred thousand of their Enemies even unto the Kings Pavilion Just l. 2. Zozimus l. 4. the same may be done by fewer A reward was promised by the Emperour Valens to him that should bring in the head of any Scythian whereupon a Peace immediately ensued They were not many that circumvented Marcellus and his fellow Consul and slew them Livy 27. Tacit. Hist l. 5. De Off. l. 1. c. 40. Jos Anc. 15. Lib. 4. Lib. 24. and that had likely to have killed Petilius Cerealis even in his Bed Ambrose highly commends Eleazer who seeing a mighty Elephant higher than all the rest assaulted him supposing that he that sate upon him had been the King Not much unlike was that attempt that Theodosius made upon Eugenius recorded by Zozimus Nor that of the ten Persians against the Emperour Julian attested by Ammianus Neither are they only that make these attempts excusable by the Law of Nations but they also that imploy them Those Roman Senators that were so renowned for their Wars Livy l. 2. were reputed the Authors of that gallant attempt made by Scaevola Neither is it to the purpose to object that such men being taken are put to exquisite torments for this happens not for that they violate the Law of Nations but because by the Law of Nations every thing is lawful that is done against an Enemy and all Conquerours are more or less severe according as it shall conduce to their future advantage for thus are spies dealt withal yet notwithstanding it is held lawful by the general consent of Nations to send out such as Moses did Joshua into the land of Caanan It is the custom of all Nations to kill spies saith Appian and that justly sometimes by such as have apparently a just Cause to make War but by others it is only lawful by that licence which the Law of Arms sometimes gives But if there be any that will not make use of such instruments though offered this proceeds rather from the Magnanimity and the confidence of him that makes the War in his own strength than from an opinion he hath that by the Law of Nations it is unjust XIX Whether ravishment be in such a War lawful The ravishing of Women is by the Law of Nations sometimes permitted in War and sometimes forbidden They that permit it do respect only the injury done to the body of an Enemy which by the Law of Arms they think ought to be subject to the Will of the Conquerour But others much better look not unto the sole injury done unto the body of an Enemy but to the very unbridled act of Lust which conduceth nothing either to the security of the Conquerour or to the punishment of the Enemy and therefore should be no more unpunishable in War than in Peace and this is the Law if not of all Nations yet at least of the better and more civilized amongst them Marcellus before he took Syracuse took special care of the preservation of the Chastity Aug. de Civit. Dei lib. 2. even of his Enemies And Scipio as Livy testifies told his Souldiers That it much concerned his own honour Lib. 26. and the honour of the people of Rome That
and calling upon God obtained the Victory and by it much spoil 2 Chron. 14.13 Which is the more notable because that War was not undertaken by any special command from God but only out of common Right Joshua also pursuing the same Rubenites Gadites and part of the Manassites in their prosperous successes saith Divide the spoil of your Enemies with your Brethren Josh 22.8 And when David sent to the Elders of Israel the spoil taken from the Amalekites he gave this honourable Character of it 1 Sam. 30.26 De Benef. 37. That it was a present sent them out of the spoil of the Enemies of the Lord. And no marvel for as Seneca observes To enrich any man with the spoils of an Enemy is honourable There are also certain Divine Laws extant concerning the dividing of such spoils as Numb 31.27 And Philo the Jew reckons it among the Curses of the Law That their fields should be reaped by their Enemies whereby must necessarily ensue Famine to themselves and Plenty to their Enemies Whereunto we may add That God gave the spoil of Tyre to Nebuchadnezor for the pay of his Army Ezech. 29.19 20. because that by him God punished the Pride of the Tyrians for insulting over Jerusalem Ezech. 26.2 II. What the Law of Nations Moreover by the Law of Nations not only he that makes War for a just cause but every man in a solemn War is without either end or measure owner of whatsoever he can take from an Enemy namely in that sense that both he and whosoever claims from him are to be defended in their possessions of the things so gained by all Nations which according to the external effects thereof may be called Dominion This saith Xenophon is an everlasting Law with all men that a City being taken by force all the goods and riches are the Conquerours Plato likewise was of the same opinion All that was the Conquereds Bona quae victus habuit omnia victoris fiunt become after the Victory the Conquerours And elswhere amongst divers kinds of natural acquisitions he placeth this also which he calls sometimes Polemical sometimes Predatory and sometimes Certatory Therein agreeing with Xenophon who brings in Socrates by divers interrogations drawing Euthydemus to this confession That it was not at all times unjust to spoil and to destroy as for example when done against an Enemy Aristotle in the first of his Politicks saith That the Law of Nations as by an universal agreement had ordained that whatsoever is conquered from an Enemy by War becomes immediately the Conquerours To the like purpose is that of Antiphanes We ought to wish our Enemies abundance of riches without valour for so those riches will quickly find other Masters not those that possess them but those that can conquer them For as Plutarch observes in the life of Alexander What was the vanquisheds both is amd ought to be accounted the Conquerours Instit Cyri. l. 2. And elsewhere the same Plutarch The goods of those that are by War overcome are proposed as the reward of the victory which are the very words of Xenophon What is gained by Arms saith Diodorus or got by the right of War ought not easily to be lost Thus Philip in his Epistle to the Athenians saith All of us possess Cities which were either left us by our Ancestors or being subdued became ours by the right of War Thus Aeschines also If by making War against us thou hadst subdued our City thou mightest lawfully have possest it by the Law of Arms. Marcellus in Livy justifies himself in taking the spoil of Syracuse by the Right of conquest And the Goths in Agathias do by the same Law justifie King Theudorick who had first conquered Odoazer saying Quae ejus fuerant omnia tenuit jure belli Whatsoever Odoazer had Theudorick possest by the right of War Thus the Roman Embassadors told Philip concerning the City of Thrace and some others That if he had taken those Cities by War they had been his by the Law of Arms as being the reward of his victory And thus Massanissa pleads saying The land that his Father conquered by War from the Carthaginians he held by the Law of Nations So also Mithridates in Justine saith Lib. 38. That to please the Romans he had withdrawn his Son out of Cappadocia which as a Conquerour he was rightly possest of by the Law of Nations Or. 2. contra Rullum Offic. 1. Cicero tells us that the City Mitylene became the Romans by the Right of War and by Conquest And in another place he tells us That propriety in some things may be gained either by preoccupancy or by War as in those things that are gained by Victory Of the same mind was Dion Cassius All that was the Conquered's immediately becomes the Conquerours Quae ex hostibus capiuntur jure gentinus statim capientium fiunt Whatsoever saith Cajus the Lawyer is taken from an Enemy by the Law of Nations immediately is made his that takes it And this kind of acquisition Theophilus calls a natural possession So likewise Aristotle Arist l. 1. de rep c. 8. because it hath respect to no other cause than the bare fact it self from whence ariseth a kind of natural Right as the Dominion of all things at first began by Preoccupancy an impression whereof we have yet remaining in such Creatures as are naturally wild whether they live on the Earth in the Sea or in the Air which for the most part are theirs that first take them As those things also which are taken in War Besides those things are presumed to be taken from an Enemy that are taken from the Subjects of an Enemy Hist Gâ— l. 3. As Dercyllides in Xenophon argues since Pharnabazus was an Enemy to the Lacedemonians and Mania subject to Pharnabazus therefore were the goods of Mania lawful prize by the Law of Nations III. When moveable Goods are said to be taken Moreover by the Law of Nations things are then said to be taken in War when they are so detained from us that we are deprived of any probable hopes to recover them and are no longer able to pursue them as Pomponius determines the like Question And this in things moveable is to be presumed as soon as they are carried into the Enemies Garrisons A thing may be said to be lost in the same manner as it is said to return after it hath been lost but may be said to return as soon as it comes within the Bounds of the Empire from whence it was taken that is as soon as it comes within our Garrisons Nay Paulus the Lawyer doth plainly averr that man to be taken that is carried out of our Bounds And Pomponius declares that man to be taken in War whom our Enemy having apprehended from out of our Garrisons had led into their own For until he be secured within their Garrisons he remains a Citizen or Subject of ours Now by this Law of Nations
afterwards as the Discipline grew more remiss so this Licence of pillage was more willingly granted to the Souldiers upon this ground lest whilst the Victory was yet doubtful the greediness of the Souldiers should make them neglect their Enemies and over-hastily fall upon the prey which hath often proved fatal to the Conquerour When the Castle Volandum in Armenia was taken by Corbulo Tacitus tells us That the common people were sold but the rest of the spoil was the Conquerours The same Tacitus brings in Suetonius encouraging his Souldiers to pursue their Enemies and not at all to mind the pillage assuring them that the Victory being ascertained the spoil should be their own Goth. 2. So in Procopius we read that all the pillage taken at Picenum was brought to Belisarius that he might divide to every man according to his merits the cause whereof is added For saith he it is most unreasonable that whilst some with much toil and valour are killing the Drones others without any labour or peril should devour the honey Vand. l. 2. And in another place he tells us That the Souldiers were much incensed against Salomon when he warred against the Levatae because he detained from them the prey who excused himself in that he did it for no other reason than that at the end of the War he might therewith reward every man according to his deserts There are some things of so small value that they are not worth the publication or exposing to sale these are usually granted to those that take them such in the old Roman Commonwealth were a Spear a Javelin Fodder Fuel a Bottle a Pair of Bellows a Torch Lib. 16. c. 14. and any thing else of less value than a small Piece of Silver For all these are expresly excepted in the Military Oath given to the Souldiers as we may read in Gellius Not much unlike is that which is allowed to Sea-men and Mariners although they are under pay Gall. Constitut lib. 20. tit 13. The French call this the spoil or pillage wherein are comprehended Apparel Bedding Fuel Gold also and Silver under ten Scutes sometimes the fifth part sometimes the third Leges Hisp sometimes half the prize belongs to the King as it doth in Spain and the seventh and sometimes the tenth to the General of the Army the rest belongs to them that take it except Men of War with all their Tackle which are always the Kings and so are all Engines of War amongst the Swedes Jo. Magn. in his Sweed Hist Consulatus Maris Cap. 285. In some places again regard is also had to the labour peril and charge that any man hath been at and allowance is made in the partition of the spoil accordingly In Italy a third part of the Ship taken in Fight is the Masters of the Ship that took it and as much belongs to them whose Goods the conquering Ship is laden withal and another third is theirs that fought and took her And sometimes it falls out that they who at their own charge and peril maintain the fight do not carry away the prize but some part thereof is due to the State or to him at least that derives it from the State As in Spain they that set out the Ship upon their own charge Leg. Hisp yield a part of the spoil taken to the King and a part to the Admiral of the Seas In France the Admiral claims the tenth part so also in Holland But there the State first takes the fifth part to themselves Thus it is at Sea but at Land in the sacking of Towns and in Battels every man usurps that which he takes to himself And in excursions into the Enemies Country by Parties whatsoever is so taken is divided among them that take it according to every mans merit and dignity XXV To what use these serve What hitherto hath been said serves to this end That if in any Nation not embroiled with War any Suit or Controversie arise concerning any thing taken in War the things shall be adjudged unto him to whom the Laws and Customs of that people from whose parts they were taken shall determine But if nothing can be thereby proved then by the common right of Nations the thing so taken shall be adjudged to the State or people themselves if at least it were taken in the act of War For by what we have already said it is plain Lib. 5. c. 8. that what Quintilian sometimes said in the behalf of the Thebans doth not always prove true As to what may be brought under the tryal of the Law the right of War avails nothing neither is it a good Plea to say It was gained by Arms unless by Arms we can retain it XXVI Whether things taken without the Territories of either Party be lawful prize But whatsoever is not the enemies though it be found with the enemy shall not be adjudged to them that take it For this as I have already said is neither agreeable to the Law of Nature nor was introduced by the Law of Nations So the Romans in Livy answer Prusias If the Lands in question were not King Antiochus 's neither could it by Conquest belong to the Romans But if the Enemy had any right or interest in those things which were annexed to the possession as if it were taken by him as a Pledge for some Debt or if it were retained by him for the performance of some Covenants for service or the like that was for the advantage of the Enemy See above Ch. 4. Sect. 7. and this Ch. Sect 5. Livy lib. 55. In all or any of these Cases I see no reason but that whatsoever was the Enemies is transferred unto the Conquerour This also is sometimes controverted Whether persons or Goods taken without the Territories of either of those Princes or people that are at War against each other be theirs that take them Whereunto it is answered That if we respect the Law of Nations only no place can give an Enemy protection for as we have already said Every where an enemy being found may be killed But yet he that hath the supreme power in that place may at his pleasure prohibit the prosecution of an Enemy within his own Dominions and in case of disobedience may require satisfaction as for an injury done against himself The like may be said concerning Deer taken in another mans Ground That they are his that takes them but it is lawful for him whose Ground it is to prohibit his access unto them XXVII This Right how proper to a solemn War But this external Right of gaining things taken in War is by the Law of Nations so peculiar to a Solemn War that in other Wars it can take no place For in other Wars amongst Foreigners the Right to a thing is not gained by force of the War but only in compensation of some Debt which cannot otherwise be recovered But in Civil Wars whether they be
it For what Livy saith of such as surrender themselves namely All are given up to the Conquerour so that what he will take to himself and wherein and how far forth he will punish the Conquered is wholly in his own power The very same in a Solemn War may be said of those that are conquered Thus Polybius They that yield themselves up to the Romans See Book 1. Chap. 4 Sect. 8. Book 2. Ch. 5. Sect. 31. Book 3. Ch. 5. Sect. 2. and Ch. 20. Sect. 49. Vid. Ch. 7. Sect. 8. do yield up in the first place their Country and what Towns and Cities soever are therein together with all their Men and Women that are in them then all their Rivers and Ports and generally all things sacred and religious so that the Romans are Lords of all and they that thus surrender themselves have nothing left And the self same Right hath the Conquerour over those that are actually conquered in a solemn War For dedition doth but voluntarily yield up that which otherwise would be taken away by force Hannibal encourageth his Souldiers being ready for Battel with this Argument Whatsoever the Romans have by so many Conquests got and heaped up shall together with themselves be ours after the Victory Thus all that Mithridates had by force of Armes added to his own Pompey by subduing him annexed to the Roman Empire wherefore even those incorporeal Right which formerly belonged to the whole Body of the people are now by the Law of Armes the Conquerours so far forth as he pleaseth Thus Alba being subdued what Rights soever the Albans enjoyed were claimed by the Romans Whence it follows That the Thessalians stood fully discharged of the hundred Talents for which they stood bound to the Thebans when Alexander the Great conquering the Thebans had by the Right of Conquest forgiven the Debt Neither is that altogether true that Quintilian urgeth in the defence of the Thebans namely That that only is the Conquerours which he can lay hold on But that Right which is incorporeal cannot be apprehended by any mans hand and again That the condition of an Heir is one thing and that of a Conquerour is another because to the Heir may pass the Right but to the Conquerour the thing For he that is Master of the persons is also Master of the Estate and of all the rights belonging to the persons He that is himself possest as a Slave cannot be said to possess any thing to himself neither can he have any thing in his power to dispose of who hath no power to dispose of himself yea though the Conquerour do grant unto the conquered Jus Civitatis The Right of being a City yet may he take away and reserve to himself whatsoever he pleaseth out of what was the Cities It is in his own power to prescribe what bounds he will to his own bounty Thus Caesar in imitation of that Fact of Alexander's to the Thessalians forgave a very great Debt to the Dyrrhachines which they owed to another City of the adverse part But here it might have been objected That that War of Caesar's was not of the same kind with that concerning which this Law of Nations was instituted So also we read that Mark Anthony commanded the Tyrians to restore unto the Jews what belonged unto them as not being granted unto them by the Roman Senate and whereof they were possest before the War made with Cassius as Josephus relates it CHAP. IX Of the Right of those that return out of Captivity I. The original of the word Postliminium II. In what places this Right takes place III. By this Right of Postliminy some things are said to return and some things to be received IV. This Right appertains both to War and Peace and what if in the articles of Peace nothing be said V. When a freeman during the War may return and be admitted by this Right VI. What Rights he may receive and what he may not VII All Rights are recoverable from him VIII Why they that yield themselves are not admitted to this Right of Postliminy IX When a people may obtain this Right X. In those that return by Postliminy what things are required by the Civil Law XI How servants are received by Postliminy how fugitives and how they are received that are â—edeemed XII Whether a people formerly subjected may recover their freedom by Postliminy XIII That Lands may be received by Postliminy XIV What difference was anciently made between things moveable XV. What the Law now determines concerning things moveable XVI What things may be received that need not this Right of Postâ—iminy XVII That the Civil Law may change somethings among their own subjects XVIII How Postliminy was observed between those that were not Enemies XIX When this Right may be now in force I. Postliminium what it is THERE are none of our modern Lawyers who have written any thing solidly either concerning things taken from the Enemy or concerning the Rights due unto them who having been taken Prisoners yet have either by favour force or fraud escaped and got home again The Ancient Romans have handled this Question somewhat more accurately but yet oft-times so confusedly that the Reader cannot distinguish between what is due by the Roman Civil Law and what is due by the Law of Nations Concerning the word Postliminium that opinion of Servius is to be exploded who held that the latter part of the word signified nothing That of Scaevola pleaseth better who makes it a compound word of post which signifies a return or coming from beyond and Limen or Limes which sâ—gnifies properly the threshold of an House or the utmost bounds or frontiers of a Country for Limen and Limes though they differ no less in flection than in termination as Materia and Materies yet are they both derived from that old Verb Limo which signifies transverse or overthwart Aenead l. 12. Eunuch as Servius upon Virgil and Donatus upon Terence observe from whence Limes oculis aliquem intueri is to look a squint upon a man Though by the latter use of the word Limen be referred to things private and Limes to things publick as to the bounds or borders of Kingdoms For as Isidore notes all oblique or cross-ways the Ancients called Lima from whence the thresholds of doors over which we go in and out are called Limina ostiorum So the Ancients when they banished any man were said eliminare to thrust him beyond their marches and banishment they called Eliminium a thrusting out of their bounds and Territories II. Postliminy therefore is a Right that ariseth unto a man that was a Captive upon his return from Captivity that is upon his entring within the Frontiers of his own Country So Pomponius He is said to be returned out of Captivity that begins to be within our own Garrisons or as Paulus saith that enters within the bounds of our Territories But by a parity of reason it is by the
general consent of Nations granted That the Right of Postliminy takes place as soon as the person that was a Captive or any other thing that is capable of this Right shall come within the Guards or Garrisons of our friends and Associates as Pomponius speaks or as Paulus expounds it by way of example as soon as he shall enter into any Garrison that belongs unto such a King or State as are our friends and companions in the same War For so indeed are these words Friends and Associates here to be understood not of any Nation or King with whom we are at peace but of such only as are so Confederate with us that they are parties in the same War into whose Garrisons whosoever enters out of Captivity shall enjoy his former Rights and be defended upon the publick account It matters not much whether they that so return are men or things or whether they come into our Garrisons or the Garrisons of our Associates But in case they that are taken Captives shall fly into the Dominions of our Neighbour King who though at Peace with us is not associated with us in the same War they shall not change their condition of being Prisoners unless it were before so expresly agreed as it was between the Romans and the Carthaginians in their second League That if any of the friends of the Romans being taken by the Carthaginians could escape out of any peoples Territories that were friends to the Romans into any of their Ports or Cities that were Subjects to the Romans they might enjoy their liberty Val. Max. lib. 5. c. 2. 6. Diod. Sic. exc Leg. n. 3. Plut. Vit. Flaminii the like provision being made for the friends of the Carthaginians And therefore when some of the Romans being taken in the second Punick War were sold by way of Traffick into Greece they were not admitted to enjoy this Right of Postliminy because the Grecians in that War stood Neuters and therefore it was necessary that they should be first ransomed before they could be set at liberty yea and although Flaminius having conquered King Philip had set all the Cities of Greece at liberty yet would he not take away from their Masters by force those Roman Captives which had been formerly sold by the Carthaginians unto the Grecians but the Achaians to gratifie him for their liberty bought Twelve hundred of them who were dispersed though Greece and presented them to Flaminius who received them as a Present of great value So did the Rhodians buy the Athenian Captives Polyb. except Leg. n. 3. taken in the War that King Philip made in Greece and frankly restored them to the Athenians And in Homer we read of divers persons taken in War that were sold into such Countries that were in Peace III. Some things return and some are received by the Right of Postliminy The Ancient Romans did always account those that were received out of Captivity as freemen Gallus Aelius in his first Book of the significations of Law Terms saith That he who being free of one City did voluntarily depart to another and afterwards did return back into that City whereof he was at the first made free was said to be Postliminio receptus that is admitted to his old freedom by that Law which provides for such as return out of Captivity As also in case a servant being taken from us and carried Captive into our Enemies Garrison should afterwards return unto us he may by this Law of Postliminy place himself under his old Master So Horses Mules and Ships by a parity of reason had the same right of reception as servants And look what kind of things do teturn unto us by this right the very same may return from us to our Enemies But the Ancient Roman Lawyers have more discreetly admitted but of two sorts of Postliminy as namely when we either return or receive something that is returned IV. It is of use as well in Peace as War Neither may we altogether reject that of Trophonius namely that this Right of returning out of Captivity into Freedom may be of use as well in Peace as War though in a little different sense than as Pomponius expresseth it This Right of Postliminy in Peace appertains unto those who were not conquered in War by force of Arms but were through misfortune surprised within the Enemies Territories when the War unexpectedly brake forth But to other Captives there belongs no such Right in times of Peace unless it be otherwise agreed on by both parties at the making of the Peace as it was at the conclusion of the War between Jonathan and Bacchides recorded by Josephus Ant. l. 13. c. 2. Polybius among other Articles of the Peace concluded and agreed on between King Philip and Antiochus recites this That all Prisoners taken on either side the Aetolians only excepted should be set at liberty Thus we read that Probus made Peace with the Vandals and Burgundians upon this condition That all the prey they had taken together with the Prisoners should be restored Nay sometimes it is agreed That not only those Prisoners that belong to private men but those that belong to the Commonwealth are to be discharged as Thucydides testifies Now this is plainly evinced as well by the subsequent reason as by its opposite member The Peace was concluded and the Prisoners released for saith Zonaras so it was agreed It was then by vertue of the agreement and not simply by their making of Peace that their Captives were dismist So Pomponius If the Captive concerning whom it was agreed in the Articles of the Peace that he might return home shall notwithstanding chuse to remain with the Enemy he shall not afterwards claim this right of Postliminy So also Paulus If a Prisoner taken in War when the Peace is made shall fly away and come home he shall be made to return back to him who in the War took him Prisoner because in the Articles of Peace it was not mentioned that the Prisoners should be released Why the Romans neglected their Citizens taken Prisoners Now the reason why the Romans seemed so to neglect their Prisoners is because they would have them to place all their hopes of returning back in their valour rather than in a Peace For thus doth Livy testifie of them That Rome was a City that of old was in Captivos minime indulgens very regardless of their Captives But this reason being proper only to the Romans could not of it self constitute the Law of Nations it might notwithstanding serve as one cause amongst others for which the Romans did the more willingly embrace that Law which was before introduced by other Nations But a truer reason may be this because all Princes and States making War would willingly be believed that there Cause was just and on the contrary that they that took Arms against them did the wrong Now whilst both parties are thus perswaded it would not be safe for any
said of particular persons may also be said of Cities and people That if they were free they may recover their freedom If the power of their Friends and Associates be able by foâ—ce of Aâ—ms to release them from the power of their enemies But if the very Body of the people that constituted that City be dissolved I believe that they that succeed are not to be accounted the same people neither are those things that formerly belonged to that City to be restored unto them by this Right of Postliminy according to the Right of Nations because a Nation like a Ship by the dissolution of its parts doth absolutely perish for that its whole Nature consists in the perpetual Conjunction of all its Mâ—mbers Wherefore it was not the same City of Saguntum though the place where it formerly stood were restored unto the ancient Inhabitants eight years after its dissolution Neither was Thebes the same City after that Alexander had sold the Citizens for Slaves whence it follows That what the Thessalians owed unto the Thebans before such dissolution could not justly be claimed by those Thebans by Postliminy and that for a double reason First Because they were then a new people secondly Because Alexander whilst he was Lord over them had a power to alienate that Right and accordingly had done it and lastly A Debt is not to be reckoned among those things which return by Postliminy Not much unlike to what we have said concerning Cities is that which the ancient Roman Laws concluded of Marriages namely That they were by captivity dissolved neither could they be restored by postliminy but must be redintigrated by the first consent of both parties But it is otherwise among Christians witness that of Pope Leo unto Nicetas Bishop of Aquileia concerning such Marriages namely That as in Slaves or Fields or even in Houses and Possessions the right and title of them is preserved for those that are Captives in case they shall return out of captivity so also in Wedlock if either party be married to another let them be reformed See what Hincmar hath written to this purpose in his Tract concerning the Divorce of Lotharius and Terberga to the thirteenth Interrogatory and the Answer of Pope Stephen in the second Tome and nineteenth Chapter of the Councils of France X. To those that return what Rights arise from the Civil Law By what hath been already said it is no hard matter to understand what manner of right by the Law of Nations Postliminy gives to free men Moreover this very same right may by the Civil Law so far as it belongs to things agitated within the City be both restrained by adding some exceptions or conditions and also enlarged unto other profits and advantages as occasion serves As by the Roman Civil Law Fugitives are exempted out of the number of those that were capable of this right so were also the Sons of a Family over whom the Father was conceived not to have lost that Paternal power and authority which was peculiar to the Romans and that for this reason as Paulus observes Because to Roman Parents their Military Discipline was ever dearer than their own Children whereunto agrees that which Cicero records of Manlius That he strictly upheld the Discipline of the Roman Empire though to his own grief that so he might the better provide for the safety of the City wherein was also bound up his own which made him prefer the Sovereign Right of Majesty which was then in himself before the bonds of Nature or the tenderness of a Father towards his own Son Again some diminution of this Right of Postliminy is that which was ordained first by the Athenians and afterwards by the Romans namely Vt qui redemptus est ab hostibus Redemptori serviat donec pretium reddiderit That he that was redeemed should serve his Redeemer until he should have repaid his ransome But this was made in favour to the poor Captives lest if there should be no provision made for the recovery of the money so paid many Prisoners should have been left in perpetual slavery among their enemies But yet even this very slavery was many ways mitigated by the Roman Laws and at length by the last Law of Justinian it was limited to five years service neither could the money paid for his redemption be recoverable after the death of the party redeemed So also by any Contract of Marriage between the person redeemed and the person redeeming it was adjudged to be forgiven So if it were a Woman that was redeemed if the Redeemer did prostitute her Body the ransome was lost There were many other Laws made among the Romans in favour to those that would redeem Prisoners and to punish their Kinsmen for neglecting them Again this Right of Postliminy was by the Civil Law much enlarged in that not only those Rights in Postliminy which are allowed of by the Law of Nations are granted unto him that so returns but generally all things and all Rights are as intirely his as if he had never been within the power of the enemy And this was also the Attick Law for as we read in Dion Prusaeensis A certain man pretending to be the Son of Callias who had been taken Prisoner in the Slaughter at Acanthus and as he said been kept as a Prisoner in Thrace when he had made his escape to Athens claimed by Postliminy his inheritance from those that then had the possession thereof after his Father we do not read that any thing was pleaded against his Right only it came in issue Whether he were the Son of Callias or not The same Authour likewise relates That the Messenians after long captivity at length returning received both their liberty and Country Yea and those things which either by usucapion or redemption seemed to be taken away out of the Goods or through disuse to be deserted are all of them recovered by a Rescissory Action For under the Edict of making restitution to Ancestors he also who is under the power of Enemies is comprehended Nay farther the Cornelian Law provides for the Heirs of such as dye in captivity and conserves all their Goods as lawfully as if he that returned not were at that very time when he was taken dead Now were it not for these Civil Laws without doubt as soon as any man were taken Prisoner by the enemy his Goods would presently be theirs that had them in possession because Qui apud hostes est pro nullo habetur He that is under the enemies power is held for none And then if he that was taken should return he should receive nothing but such things as by the Law of Nations were due unto him by Postliminy But that the Goods of a Captive were confiscate and brought into the Treasury in case he had no Heir was a Law peculiar to the Romans only Hitherto we have treated of things that return now we shall speak of such things as are received by
to their People and if they did make War it was not for Dominion but for the honour of the Conquest Now unto this Ancient Custome it is that St. Aug. laboured as much as in him lay to reduce us De Civit. Dei l. 4. c. 15. Let Princes saith he consider that it belongs not to good Kings to take pride in the enlargeing their Dominions for as he there adds Major est foelicitas vicinum habere concordem quam malum subjugare bellantem It is greater happiness to have a good Neighbour that is peaceable Lib. 5. cont Julian than to subdue a bad one that is troublesome Upon which account it was that St. Cyril commends the Hebrew Kings who always contented themselves with their own bounds without encroaching on their Neighbours which was the very sin for which the Prophet Amos did so severely reprove the Ammonites III. Which may be done either by intermixing the Conquerors with the Conquered Nearest unto this original draught of innocence comes that prudent moderation used by the old Romans What saith Seneca * Lib. de Ira c. 34. had our Empire been had not a wholesome providence taught us to intermix the Conquered with the Conquerours Our great founder Romulus as Claudius in Tacitus tells us †Annal. l. 5. Lib. 1. did so prevail by his wisdom that many people whom the rising Sun saw his Enemies the setting Sun saw his Subjects and Citizens Neither was there any thing that did more ruine the Lacedemonians and the Athenians than this That they always drove away the vanquished as Strangers Livy informs us that the Commonwealth of Rome was much augmented by the reception of the Conquered into their City whereof Histories afford us plenty of examples As of the Sabines the Albanes the Latines and so of the rest of the Italian Nation till at length Caesar first led the Gaules in triumph and afterwards admitted them to be of his Court and Council Cerialis in Tacitus thus bespeaks the Gauls Ye your selves are usually admitted to command our Legions Ye are they that govern not this only but others of our Provinces there are no places of trust from which ye are excluded wherefore as he there infers ye ought in all reason to endeavour all you can to preserve that life and Peace which ye though vanquished do equally enjoy with us the Victors Nay which is yet more admirable by the decree of the Emperour Antoninus all that lived within the Circle of the Roman Empire were made Citizens of Rome which are the very words of Vlpian whereupon Rome was then accounted as Modestinus affirms Communis Patria The common City or every mans Country Whereof Claudius thus Hujus pacificis debemus moribus omnes Quod cuncti gens una sumus To th' honour of this Prince it may be said That of the World he but one Nation made IV. Or by leaving the Government to the vanquished Another kind of moderation used in Victory is when the Government is left in the same hands either of King or People who hold it before the Conquest Thus Hercules bespeaks King Priamus Hostis parvi victus lacrymis Sen. Troad Suscipe dixit rector habenas Patrioque sede celsus solio Sed sceptra fide meliore tene By a weak Enemies tears ore'tane Take saith he thy Crown again Ascend thy Fathers Throne on high But henceforth rule more moderately So also the same Hercules having conquered Neleus gave his Kingdom to Nestor his Son Thus the Persian Kings were wont to leave their Kingdoms to the Kings whom they had conquered contenting themselves with the bare Victory Thus did Cyrus to Armenius Alexander to Porus. De Clem. lib. 1. c. 21. And this is it that Seneca highly commends in a Conquerour Nihil ex rege victo praeter gloriam sumere To take nothing from the Conquered besides the honour of the Conquest This is triumph over Victory it self and to declare that there was nothing to be found among the Conquered worthy of the Conquerours acceptance but the Conquest it self Thus Pompey having overcome Tigranes left him a part of his Kingdom to govern as Eutropius informs us And herein is Antigonus extold by Polybius That having brought Sparta under his absolute power Lib. 6. he gave the Citizens the free use of both their Ancient Laws and Liberties for which Act his praises were highly celebrated throughout all Greece Thus did the Romans give unto the Cappadocians whom they had conquered a power to use what form of Government they pleased and many Nations we may read of which being Conquered were notwithstanding left free Thus was Carthage left at liberty to live under their own Laws as the Rhodians pleaded to the Romans after the second Punick War Livy lib 32. And when the Aetolians told Quintius that there could be no firm Peace until Philip of Macedon were driven out of his Kingdom He answered That they were too severe in their censures as being unmindful of the common custome of the Romans who for the most part spared those whom they had in their power adding this withal Adversus victos mitissimum quemque maximum animum habere That he who was mildest towards the Conquered was ever held most magnanimous V. Sometimes by keeping of Garisons Sometimes though the Empire be restored yet the Conquerours security is also provided for Thus it was ordained by Quintius That the City of Corinth should be restored to the Achaians but withal That there should be left a Garison in Acrocorinth which also was afterwards withdrawn and that Chalcides and Demetriades should be detained until all fear concerning Antiochus should cease IV. Sometimes by imposing Tribute The imposition of Tribute is oft-times not only for the defraying the charges of a War but for the mutual security of both the Conquerour and the Conquered for the time to come Cicero in his Epistle to his Brother Quintus concerning the Grecians * Lib. 1. ad Quintum Fratrem Epist 1. writes thus Let Asia also consider That unless She be secured by the Roman Power She can never be without a Foreign War or Domestick Broils And since this Power that secures her cannot possibly subsist without Tribute good reason it is that She should be contented with sopme part of her wealth to purchase to herself perpetual Peace Thus doth Petilius Cerealis in Tacitus plead for the Romans Hist l. 4. with the Langres and other Gauls We say they though often provoked yet by the Right of Conquest do offer unto you one only Condition of Peace namely That ye pay your Tribute For Peace among Nations cannot be defended without Armes nor Armes without Pay nor can we pay our Souldiers without Contributions Hereunto likewise we may refer those other things mentioned before Lib. 2. c. 15. § 7. where we discoursed concerning unequal Laws as the Delivery of Armes of Fleets of Elephants the prohibiting the use of Weapons the raising of
Armies and such like whereby the Conquerour may be secured VII What profit ariseth from this Moderation But that the Conquerour should leave the Conquered possest of his own Kingdom stands not with humanity only but sometimes with policy Among Numa's Laws this is commended for one That in those Sacred Rites wherewith they worshipped their God Terminus Plut. Quaest Rom. qu. 15. he would have no bloud spilt thereby intimating That nothing could more conduce to a lasting Peace between Neighbour Princes than to content to live themselves within their own Bounds It was very well said of Florus Difficilius est Provincias obtinere quam facere viribus parantur jure retinentur It is much more difficult to keep Provinces than to make them for they may be gained by force but they must be kept by justice Not much unlike is that of Livy Lib. 37. Facilius parari singula quà m teneri universa Particulars are more easily gained than Vniversals kept Nor that of Augustus in Plutarch It is better to govern our own well than to be possest of a greater Empire Whereunto we may add that Saying of Darius's Ambassadour to Alexander A foreign Empire is full of danger Thou wilt find it very difficult to hold what thou canst not grasp Some things may be easily gained yet not so easily kept How ready are our hands to catch at that which when they have they cannot hold Which Calanus the Indian Plut. vit Alex. and before him Oebarus Cyrus's Friend did very well emblem out by a dryed Oxe's Hide which being prest down with our feet on the one side riseth instantly on the other And Titus Quintius in Livy by a Tortoise Lib. 27. Val. Max. 4. 1. who whilst he gathers himself up within his Shell is safe but as soon as he thrusts out any one part he is exposed to danger Plutarch thus relates That when the Achaians consulted about the taking of the Island Zant he disswading from it told them That it was a dangerous attempt if like the Tortoise they thrust their head beyond Peloponnesus And herein is that of old Hesiod verified which Plato likewise thus applies Plato de Leg. 3. Dimidium plus toto That sometimes it is better to take up with the one half than to covet the whole When some Nations as Appian notes would willingly have annexed themselves to the Roman Empire they were refused And over other Nations they thought it fitter to appoint Kings than to unite themselves as Provinces And in the judgment of Scipio Africanus the Roman Empire was in his time of so large an extent that as to effect more might well be thought greediness so if they could but keep what they had they might be abundantly happy Wherefore that Prayer whereby in their solemn purgations they invoked the Gods to prosper and enlarge their Empire he so changed that he prayed only That they would preserve it in perpetual peace and safety which the Emperour Augustus thought worthy his imitation and is therefore commended by Dion for that he did never attempt any new Conquest esteeming that which he had already got to be sufficient VIII Examples of the change of Government among the Conquered The Lacedemonians yea and the Athenians also in their Golden Age never challenged the Sovereign Power over any City that they took by War only they required that they should mould their Government according to their own Form For the Lacedemonians used an Aristocratical Government wherein a few of the best governed the rest But the Athenians used a Democratical whereby the Government was wholly setled in the People Lib. 4. de Rep. cap. 11. lib. 5. cap. 7. as Thucydides Isocrates and Demosthenes teach us Nay Aristotle himself confirms as much in several places Tacitus records the like done by Artabanus at Seleucia * Ann. 6. Who assigned the Government of the Common People to the Noble-men according to his own use and custom For he judged it the next way to Liberty to leave it in the People as to leave it in a few was the next way to Tyranny But whether these alterations in Government do conduce any thing to the security of the Conquerour is not our purpose in this place to determine IX If the Empire be assumed to leave some part thereof to the Conquered But in case it be not thought safe for the Conquerour to leave the Conquered altogether free yet may the matter be so moderated that some part of the Government may be left to them or their King with a reservation of some other part to the Conquerour Tacitus tells us That it was the manner of the Romans to make use of Kings themselves as Instruments of subjection Antiochus is said to be Romanis inservientium Regum ditissimus The richest of all the Kings that were subject to the Romans The like we read in the Commentaries upon Musonius namely Of some Kings that were subject to the Romans So in Lucan Atque omnis Latio quae servit purpura Ferro And every King whom Rome's vast Power commands Thus did the Scepter continue amongst the Jews in the Sanhedrim after Archelaus's confiscation And Evagoras King of Cyrus as Diodorus testifies told the King of Persia Lib. 15. That he would obey him but as one King obeyed another And when Darius was overcome Alexander was willing to restore him to his Kingdom but upon this Condition Lib. 17. That he might command others but obey him only Such Kings there were also antiently in Italy who though they ruled others yet were themselves subject to other Kings So in Aeschylus we read That among the Persians there were Reges Regis magni subices Petty Kings Leunclav lib. 18. Lib. 1. c. 3. § 17. Lib. 3. c. 8. § 3. that were subject to the Great Kings As there are now also among the Turks Now as concerning the manner how an Empire may be mixt we have already treated but sometimes a part of a Kingdom being taken away the rest is left to the Conquered as is usual after the Conquest to take away some part of the Fields and to leave another part to the ancient Occupants X. Or at least some liberty Yet when the Conquered are altogether deprived of their Empire may there be left unto them power over their private Estates and some smaller things that are publick as their own Laws Customs and Magistrates Thus Philo in his Embassy to Caius saith That Augustus was no less careful to preserve the Laws peculiar to every Nation than to preserve the Laws proper to the Romans So we read also in Pliny That in Bithynia Lib. 10. Ep. 56. 14. Lib. 3. Ep. 113. being a Proconsulary Province the City Apimaea retained this priviledge That they governed their Commonwealth at their own pleasure And in another place he tells us That it was granted them that they might chuse their own Magistrates and their own Senate The City Sinope though
Captivis who being first taken by Robbers did afterwards escape unto the Enemy namely That it was true that he was taken away Aegid Regius de Act. supern dist 31. dub 7. n. 122. neither was his having been amongst Enemies nor that he did return back by Postliminy any impediment unto him as to that thing The very same Answer from the Law of Nature may serve concerning him who being taken in an unjust War and afterwards either in a just War or by some other means comes under the power of another For as to that which we here call internal Right there is no difference between an unjust War Can. 10. and Piracy or Robbery And according to this opinion did Gregorius Neocaesariensis frame his Answer being consulted with concerning the Goods of some of his Citizens which after they had been taken away by the Barbarians were received by some of the Inhabitants of Pontus II. Examples Wherefore things so taken ought in honesty and conscience to be restored to their first Owners as being unjustly taken away which we see frequently done Livy having declared how the Volsci and Aequi had been conquered by Lucius Lucretius Tricipitinus saith Lib. 3. That the spoil was brought and exposed to publick view in the Field of Mars that every man might within the space of three days find out his own and take it away Lib. 10. The same Livy in another place having related the Victory got over the Volsci by the Dictator Posthumius tells us That he restored a part of the spoil to such as knew their own of another part whereof he made Portsale And elsewhere he tells us That two days were allowed for every man to come in and to lay claim to his own Goods And in another place Having recited the joyful Victory which the Samnites got over the Campanes wherein there were taken seven thousand four hundred of them Prisoners and a very great Booty from their Associates He likewise tells us That the right Owners were summoned by Proclamation to come in by a certain day to find out and receive back their own Goods The like fact he records of the Romans For the Samnites endeavouring to possess themselves of Interamna a Colony of the Romans but not able to keep it having plundered the City and depopulated the Country and driving away before them an infinite number of Men Cattel and other things fell unexpectedly into the hands of the Roman Consul in his return from Luceria who recovering the spoil and pursuing the Samnites with great Slaughter at last exposed all he had got to open view sending out his Edict That every man might come in and receive his own The same Authour speaking of the Prey taken by Cornelius Scipio at Ilippa a City in Portugal saith All which being exposed to view before the City every man had leave granted to search out and take away what was his own the rest was delivered to the Questor to make sale of which was presently done and the money divided among the Souldiers So again after the Battel fought by Titus Gracchus at Beneventum Lib. 24. The whole Prey except the Prisoners was divided among the Souldiers but the Cattel were preserved which the right Owners had liberty given them within thirty days to find out and to recover The like doth Polybius record of L. Aemilius Who having conquered the Gauls Hist l. 2. restored all the spoil to them from whom it had been taken The very same doth Plutarch Plut. Apotheg Appian Puni Appian and Diodorus testifie of Scipio the African who having taken Carthage â—â—funded their many rich Presents which the Carthaginians had taken from the Cities of Sicily and elsewhere and brought thither With whom agrees Valerius â—â—aximus concerning the same Scipio Lib. 1. c. 1. n 6. Whose humanity saith he was such that having taken Ca thage he sent Letters to all the Cities of Sicily Orat. Ver. That they might by their Ambassadours receive back all the Ornaments of their several Churches which the Carthaginians had taken from them which he desired them to take care of and to set them up in their former stations The like testimony doth Cicero give of him The Carthaginians saith he did formerly possess themselves of Himera one of the beautifullest and best adorned Towns in Sicily Scipio esteeming it an act worthy of the Roman People took care that the War being ended and Carthage taken all the ancient Ornaments taken at any time from the Sicilians should be restored unto them Lib. 37. Thus did the Rhodians restore four Ships to the Athenians which they had recovered from the Macedonians who had formerly unjustly taken them from the Athenians So likewise Peneas the Aetolian Lib. 31. as Livy records it thought it sit that all that before the War began had been the Aetolians should be restored unto them which Titus Quintius did not deny Lib. 33. had the demand been only of Cities taken in War and had not the Aetolians first broken the Laws of friendship Nay even those Goods that were at first consecrated to the Temple at Ephesus Strab. l. 13. which afterwards their Kings made their own the Romans caused to be restored to their former condition III. Whether any thing may be deducted But what if such Goods so taken shall come unto us by way of Commerce may we not charge him from whom they were taken with so much as they cost us We may as we have already said * Lib. 2. c. 10. § 9. so far forth as the recovery of the possession of things so desperately lost would probably have cost him from whom they were taken And if the charges may be required of him why may not our labour and peril also be valued as if a man should recover some precious Jewel of another mans out of the Sea by diving unto the bottom Very pertinent unto this is the Story of Abraham's return from the Conquest of the five Kings Reduxit omnes illas res He brought back all those things Gen. 13.16 Vers 20 21 22 23 24. saith Moses i. e. which the Kings had taken away Neither can we refer that Offer which the King of Sodome made unto Abraham of restoring the men and detaining the Goods to himself to any other cause than this That those Goods should be the reward of his pains and peril But that Abraham refused to take any thing to himself of the Prey was an Argument of his no less piety than magnanimity which was very well observed by Jacchiades on the fifth Chapter of Daniel Nevertheless of the things so recovered Dan. 5.17 he gave the tenth to God as being due to himself by the reason of his necessary charges and some portion thereof he was willing should be given to his Companions St Ambrose speaking of this generous fact of Abraham saith The reward which he refused from men he received from God And Sulpitius speaking
of the rest of the spoil saith That Abraham restored it to those from whom it was taken Not much inferior to this of Abraham's was that Heroick Act of Pittacus the Mytilenean Lib. 6. c. 5. n. 1. See above Book 2. Chap. 14. Sect. 6. Book 3. Chap. 4. Sect. 1. recorded by Valerius Maximus Who being offered by the general consent of his Country-men the one half of the Land taken from the Athenians for his good conduct utterly refused it accounting it a dishonour to sully the Glory of his Victory by receiving so large a part of the spoil IV. The people or any part of them to be restored if unjustly possest As things taken in an unjust War are to be restored to their right Owners so a people or any part of a people ought to be restored to him or them who had the Right of Government over them or even to themselves if before any unjust force was used against them they were a free people Thus we read of the exiled Saguntines That after six Years they were restored by the Romans * Liv. lib. 2. lib. 73. Xenoph. Hist Graec. lib. 3. So Anthony in the War of Cassius set at liberty all those that were made Bondmen and commanded their Goods to be restored unto them Thus also was Calatravia restored by the King of Castile and others to the Souldiers from whom the Moors had before taken it †See above Ch. 10. Sect. 6. And so also was Sutrium taken and restored in Camillus's time as Livy testifies * Liv. lib. 34. The Aeginetae and Melii were likewise restored to their Cities by the Lacedemoniaes The Cities of Greece which had been subdued by the Macedonians were set at liberty by Flaminius who in the Treaty he had with Antiochus's Ambassadour insisted on this as a Point of Equity That the Asian Cities which were called by Greek Names should be restored to their liberty which Seleucus the Great Grandfather of Antiochus had taken by force and which afterwards being lost were re-taken by the same Antiochus For saith he those Grecian Colonies were not sent into Aeolia and Ionia to be enslaved by the King but for the encrease of the Greek Race and to propagate that ancient Nation throughout the World V. In what time the obligation to restitution ceaseth It is sometimes questioned How long a time is required before this Obligation to restitution ceaseth But this Question if it happen to arise between Subjects of the same Empire is best determined by their own Laws that is in case those Laws will admit of this Internal Right and not of that only which is External which by a prudent inspection into the words and purpose of those Laws may be collected But in case it be between such as are Strangers to each other then it must be determined by a sole conjecture of the former Owners dereliction Lib. 2. c. 4. whereof we have sufficiently spoken as far as is fit for our purpose VI. What if the Right of War be dubious But if the Right of War be very ambiguous it is best to follow the Advice of Aratus the Sicyonian as King Ferdinando did * Mariana lib. 29. c. 14. who in part perswaded the new Occupants to accept of present money and to yield up their possessions and in part perswaded the ancient Lords to accept of the value of their Lands rather than to hazard the recovery of them CHAP. XVII Of Neuters in War I. From Neuters nothing is to be taken away but in extreme necessity nor then without restoring the full value II. Examples and Precepts of such abstinence III. What the Duty of Neuters are to such as are at War I. From Neuters nothing must be taken but upon pure necessity THough it may seem impertinent here to treat of such as are not concerned in War because against these it is plain That War hath no Right at all yet seeing that many outrages are committed and many injuries done against such if Borderers by reason of the War upon pretence of necessity it will not be much amiss briefly to repeat here what hath elsewhere been delivered more at large * Book 2. Ch. 11. Sect. 10. In the first place therefore we must remember That it is required that that necessity that gives us a kind of Right to that which is properly anothers must be extreme Secondly That there be not a like necessity in the right Owner of the thing Thirdly If there be such an extreme necessity it is plain that we ought to take no more than what our present necessity requires As for example If the bare custody be sufficient we ought to forbear the use if the use be necessary we ought to forbear the abuse if the abuse be necessary we ought to give the full value of it to the right Owners II. Examples of abstinence and some Precepts Moses being necessitated to pass with his Israelites through Idumaea promises first to pass only through their High-ways and not to hurt either their Fields or Vineyards and in case they should want water they would pay for it Those famous Generals both of the Greeks and Romans did the same The Greeks in Xenophon Xenophon under Clearchus promise the Persians That in passing through their Country they would offend no man And if they might be supplied with necessaries for their money they would not forceably take either Meat o◠Drink from any man Thus did Dercyllides pass with his Army through Countries that were quiet without offence given to the Provincials Livy testifies the same of King Perseus That he passed into his own Dominions through Phthiotis Achaia and Thessaly without any damage or injury done to the Country through which he past The self same doth Plutarch testifie concerning the passage of the Army led by Agis the Spartan into Peloponnesus It was a pleasant Spectacle saith he to all the Cities of Greece to see how civilly and inoffensively they marched and almost without noise The like Testimony doth he give to Titus Quintius Flaminius Thus Vellejus writes of Sulla That he led his Army through Calabria and Apulia into Campania so orderly and with such singular care of their Fruits Fields Cities and People Lib. 2. as if he had come into Italy not as one meditating revenge but as a Peace-maker Pro Lege Manilia Tully speaking of the Great Pompey saith thus Whose Legions came into Asia so inoffensively that neither the hands of so great a multitude nor the print of their feet Plut. Pomp were observed to hurt any that lived peaceably And understanding that some of his Souldiers had misbehaved themselves in their March Sigillum Gladiis eorum imposuit quod qui non custodisset is puniebatur He sealed up their Swords in their Scabbards which Seal whosoever brake was severely punished Lib. 2. Strat. c. 2. Frontinus thus testifies of Domitian That being about to raise new Forts and Castles upon the
power to grant away even what is her own Now the words of the Oath may be so clear and so full as not to admit of any exceptions Lege Legem quae te jurejurando obstrictum tenet Read over your own Law Lib. 5. c. 3. saith Valerius Maximus to the City of Athens whereunto ye stand bound by your Oath And such Laws the Romans held as sacred because the people of Rome were obliged by Oath to keep them as Cicero testifies We find in Livy a very pertinent Discourse as to this matter Orat. pro Balbo Lib. 3. though of it self more obscure where as the opinion of the best Expositors of the Laws he asserts That the Tribunes of the people were sacrosanct that is so holy that they could not be injured without perjury But so were neither the Aediles Judges nor Decemviri and yet to injure either of these was punishable by the Laws The ground of which difference was this Because these latter were thought sufficiently defended by the severity of the Laws alone But that which was in the last place enacted by the people was most inviolable yet whilst the Law remained in force no man could pretend to a Right to act contrary to the Laws But that which defended the Tribunes besides the Law was the publick Religion of the Romans for they were all bound by a solemn Oath not to offer violence unto them which they that took could not break without giving a publick scandal to their Religion This light we receive from a place in Dionysius Halicarnassensis where it is thus recorded Brutus calling the Assembly together proposed it to the People of Rome That the Tribunes of the People might thenceforth be rendred inviolable not by the Laws only but by a publick Oath whereunto all the People gave consent And hence it was that this Law was called sacred Plut. vit Gracchi And therefore that fact of Tiberius Gracchas in deposing Octavius from the Tribuneship alledging that the Tribunitial Power had its sanctimony from the people but not to be exercised against them was much condemned by all honest men And therefore as I have said as well a City as a King may be bound up by Oath in such Agreements as they make with their own Citizens or Subjects IX Or if the promise be made to a third person for the Subjects But yet farther A Promise or Agreement made by Princes or States to their own Subjects shall be valid being made to a third person who hath given no cause of fear But wherein and how far forth that third person may stand interessed in that promise being one of the niceties of the Roman Law we shall not here search into For naturally it concerned all men to provide as much as in them lyes for the safety of others Thus we read That King Philip having made his Peace with the Romans bound himself by promise Not to revenge himself on those Fugitives who during the War had sided with the Romans X. How the publick State may be changed But yet possible it is as we have elsewhere proved that a State may sometimes become mixt and as from an Absolute Monarchy it may pass into an Absolute Aristocracy or Democracy so also it may by Covenants and Agreements be transferred from any one of these simple into one mixt of any two or of all So as they which before were Subjects may begin to settle the Government in themselves or at least some part thereof even with a liberty to defend and protect their own Party by Force of Armes XI That fear in a Solemn War by the Law of Nations is no Just Exception But a Solemn War that is such a War as is on both sides publick and denounced among many other things which by that Right which we call external it peculiarly enjoys hath this also That all promises made in that War or that conduce to the concluding of it are so firm and valid that though they were caused through a fear unjustly brought yet can they not be null'd or made void without the consent of him to whom they were made because as many other things though in themselves not altogether just yet are by the Law of Nations reputed so so fear though it be in either side unjustly caused yet shall it in such a War by the same Law be accounted just Which unless granted it would follow that such solemn Wars which are indeed but too frequent could be neither moderated nor ended both which are very expedient for the conservation of Mankind And this we have reason to believe is that Right in War which Cicero tells us is to be kept even with Enemies De Offic. l. 3. Ver. 4. to whom also it was elsewhere said That there were some Rights which an Enemy might retain though in War namely Not such only as are allowed of by the Law of Nature but some such also as are introduced by the consent of Nations Neither doth it hence follow That he who in an unjust War hath extorted any such thing may without the breach of piety or honesty retain what he hath thereby got or compel another to perform such a promise sworn or unsworn For internally and in the very nature of the thing it still remains unjust Neither can this internal injustice of the act be otherwise removed than by the new and absolutely free consent of the Promiser Again XII This to be understood of such a fear as is allowed by the Law of Nations Whereas that fear is said here to be just which is caused in a Solemn War it is to be understood of such a fear as the Law of Nations doth not disallow As for example A promise wrested from an Ambassadour that is taken Prisoner shall not yield the least advantage to him that extorts it as Mariana testifies So in case any thing be extorted through the fear of Ravishment or through any other the like terrour or affrightment contrary to our faith given this ought to be judged by the Law of Nature because the Law of Nations takes no cognizance of any such fear Again XIII That faith is to be kept with the perfidious That faith ought to be kept with such as are notoriously perfidious we have in a more general Treatise already proved Which also we may learn from St Ambrose which without doubt reacheth even unto such enemies as are altogether faithless Such as the Carthaginians were unto the Romans who notwithstanding kept their faith inviolably with them For Lib. 6. c. 6. as Valerius Maximus well observes The Roman Senate regarded not what the Carthaginians deserved but what in honour became the People of Rome which is the Testimony that Salust gives of them In all the Wars saith he between Rome and Carthage though the Carthaginians as well in times of Peace as during their Truces committed many outrages yet would not the Romans upon any provocation permit that the like should be done
us that our faith was altogether to be kept For better it was not to admit of some excuses though just from a few than to encourage all to make what excuses they would for the breach of their faith But what things are those which may countervail that which is promised Surely in the first place Whatsoever by any other Contract made since the War is owing unto us by him to whom our promise was made or whatsoever damages we have sustained by him in the times of Truces or in case the Persons or Rights of Ambassadors have been by him violated or in brief if he have done any other thing which between Enemies is not justifiable by the Law of Nations where this also is to be understood That the satisfaction be made between the same persons and that the Right of no third person be thereby injured but yet with this allowance That the Goods of Citizens may stand obliged for the Debts of their own City as those of Subjects may for the Debt of their Prince as we have already shewed Whereunto we may add Lib. 2. c. 2. That it is the sign of a generous Soul strictly to observe his faith in Leagues given notwithstanding all provocations to the contrary by injuries received Upon which account it was that that wise Indian Jarchas so highly commended that King who being much injured by his Confederates yet would never break his faith given saying Philost l. 3. c. 6. Tam sancte se jurâsse ut alteri ne post acceptam injuriam nociturus esset That the Oath he had taken was so sacred that he durst not injure him to whom he had given his faith though he were sufficiently provoked Now look what other Questions usually arise concerning our faith given to Enemies may almost all of them be resolved by applying them to those Rules heretofore prescribed concerning the Obligatory Power as of Promises in general so of those special promises made by Oaths Leagues Sponsions Lib. 2. c. 11. seq and of the Right and Obligation of Kings and concerning the interpretation of such promises as are ambiguous But yet notwithstanding for the better use of what hath been already said and for the clearing of any other doubts which may happen to arise it shall not at all be troublesome to me briefly to unfold such of these special Cases as are most notable and as do most frequently occur CHAP. XX. Concerning the publick Faith Treaties Lots set Combats Arbitrements Surrenders Hostages Pledges I. The division of Faith among Enemies in order to that which follows II. In Monarchies it is in the Kings power to make Peace III. What if the King be an Infant Mad a Prisoner or an Exile IV. In other Governments this power is in the major part V. How an Empire or a part of it or the goods of a Kingdom may be firmly alienated to obtain Peace VI. How far by a Peace made with a King his People and Successors may stand bound VII That what is the Subjects may in Peace be granted away for the publick good but with condition of repairing damages VIII What may be said of things already lost by War IX No distinction here between things got by the Civil Law and things got by the Law of Nations X. With Foreigners what a King doth is held to be for the publick good XI A general rule whereby to interpret Articles of Peace XII In doubtful cases it is credible that it is agreed that things should remain in the state they are at present how this is to be understood XIII What if it be agreed that all things shall be restored to the condition they were in before the War began XIV Then they who being before free and had voluntariy enslaved themselves were not to be made free XV. That damages occasioned in War if left dubious are presumed to be forgiven XVI But not those which before the War were due to private men XVII Punishments also before the War publickly due if left doubtful are believed to be remitted XVIII What is to be said concerning the Right that private men have to require punishment XIX That Right which before the War though publickly claimed was controverted is easily believed to be forgiven XX. Things taken after Peace made to be restored XXI Of agreements whereby things taken in War are to be restored some certain rules XXII Together with the things the fruits and profits are to be restored XXIII Concerning the names of Countries XXIV Concerning the relation that is had to some precedent agreements XXV Of delay XXVI Where the words are doubtful the interpretation must be made against him that gives Laws XXVII Distinction must be made between the giving of a new cause of War and the breaking of Peace XXVIII How a Peace may be broke by doing contrary to that which is presumed to be in every Peace XXIX What if we be invaded by Associates XXX What if by Subjects and how their fact may be judged as approved XXXI What if Subjects engage under another Prince XXXII What if Subjects be invaded explained by distinction XXXIII What if Associates who are likewise distinguished XXXIV How a Peace may be broken by doing contrary to that which was said in the Peace XXXV Whether any distinction is to be made between the Articles of Peace XXXVI What if to the breach of the Articles there be some punishments added XXXVII What if we are hindred by an unavoidable necessity XXXVIII The Peace shall stand firm if he that is injured be willing thereunto XXXIX How a Peace may be broken by doing that which is contrary to the special nature of every Peace XL. What under the name of friendship may be comprehended XLI Whether it be enough to break friendship to receive Subjects and Exiles XLII How War may be ended by lots XLIII How by a set combate and whether lawful XLIV Whether the fact of the King do in this case oblige the People XLV Who is to be judged the Conquerour XLVI How War may be ended by Arbitrement and how it must be understood if it admits of no appeal XLVII Arbitrators in cases doubtful must be so understood as bound to do Right XLVIII That Arbitrators are not to determine of possessions XLIX How far forth the force of a pure dedition extends L. What a Conquerour ought to do as to such as surrender LI. Of a surrender upon conditions LII Who may and ought to be given in Hostage LIII What Right is given against Hostages LIV. Whether an Hostage may awfully escape by flight LV. Whether an Hostage may be lawfully detained upon any other account LVI Vpon the death of him for whom an Hostage is given the Hostage is to go free LVII The King dying who sent the Hostage whether the Hostage may lawfully be detained LVIII Hostages may sometimes be principally obliged and that one of them is not bound for the fact of another LIX What obligation lies upon
pledges LX. When the Right of redemption of things engaged is to be judged as lost I. The Division of Faith in order to what follows ALL agreements between Enemies depend upon Faith either exprest or understood Faith exprest is either publick or private Publick is either that given by supreme or that given by subordinate power That given by the supreme power either puts an end to the War or is of some force the War continuing Among those things that conclude a War some things are looked at as Principals and some Accessaries The principals are those very things that finish it either by their own act as the Articles of agreement or by consent on both sides that it shall be determined by some other thing or by Lots by the event of some Combats the award of Arbitrators whereof that by Lots is altogether fortuitous the other two moderate the case by the strength of the mind or of the body or by the discerning faculty II. The power to make Peace is in the King if the Government be Kingly They that have power to begin a War have also a power by Articles of agreement to to end it * See Bo. 2. ch 15. §. 3. for every man is the best moderator of his own affairs whence it follows that in a War on both sides publick the power of making Peace belongs to them who are entrusted with the Supreme Authority as in a Government truly Monarchical to the King so as he be no ways disabled to exercise that Authority III. What if the King be an Infant For in case a King be not at Years of discretion which in some Kingdoms is determinable by Law * Bo. 1. ch 3. §. 24. Francis King of France being Prisoner to Charles the Fifth Emperour and King of Spain his case about the Dutchy of Burgundy See Lord Herberts Hist of H. the 8th pag. 193. but in others by probable conjectures or if he be not of sound mind he is not capable of making Peace The like may be said of a King that is in Captivity in case that Kingdom had its first rise from the suffrages of the People it being incredible that the People should ever consent to entrust their Government into such hands as were not at liberty to exercise it wherefore in this case also though not the full power yet the exercise of that power and as it were the Guardianship of it is in the people or those whom the people shall surrogate in their stead Thus when Rodolfus the Palatine fled through fear into England and when the Bishop of Mentz was driven out of his Territories by the Bishop of Tryers neither the one nor the other lost their Electorship But yet as to those things that are privately his own a King though a Captive may make any Contract good after the example of those things that we shall say concerning private agreements But what if the King be an exile as Camillus was when he lived amongst the Vejans of whom Lucan writes thus Vejos habitante Camillo Illic Roma fuit is it in his power to make Peace yea surely if it appear that he lives free obnoxious to none for otherwise the condition of an exiled King is not much different from that of another Captive a banished man being but a Prisoner at large Thus Cicero speaks concerning Regulus that he refused to give his opinion in the Senate alledging that so long as he stood bound to his Enemies by Oath he was uncapable of voting as a Senator IV. In other States it lies in the major part But where the Supreme Authority is seated either in the Nobles or in the People it is in the power of the major part of them to make Peace The Decrees either of the publick Senate in the former or of the Citizens in the latter being to be pronounced by such as by use and custome have a Right thereunto according to what we have elsewhere delivered Bo. 2. ch 5. §. 17. And therefore what is thus agreed upon shall oblige the whole yea even those that dissented from them Thus Livy * Lib. 32. Whatsoever is once upon a full debate decreed is to be defended by all even by those who had been before against it Wherewith accords that of Dionysius Halicarnassensis Parendum est his quae pars major decreverit Whatever the major part thinks fit must by all be obeyed So likewise Appian Omnes decreto obsequi tenentur nulla admissa excusatione What is so decreed is by all men to be observed no excuse being admitted of to the contrary With whom agrees Pliny Quod pluribus placuisset cunctis tenendum What pleaseth the greater part obligeth all But those whom Peace obligeth it also profiteth Iisdem volentibus prodest V. How an Empire or any part thereof may be alienated for Peace Now let us see what manner of things they are that are subject to such agreements most Kings now a days because they hold not their whole Kingdoms nor any part of them in propriety but in respect of their fruits and profits only cannot by any Contract or Agreement alienate them * See above Bo. 2. ch 6. §. 3. and what follows Yea and before they receive that great charge of the Empire upon them during which time the People are as yet above them all such acts of alienating the Kingdom or any part thereof may by a publick Law for the future be made absolutely void so that as to what concerns That they shall not be binding at all And credible it is that the People were generally thus minded Ne alioqui si ad id quod interest salva esset actio contrahenti subditorum bona pro debito regis caperentur Lest otherwise if as to that which is so provided against the action should hold good to the person contracting the goods of the Subjects might be taken for the Debt of the King And consequently this caution of not alienating the Kingdom would be in vain But that the whole Empire may be firmly alienated the whole body of the People must yield their consents which may quickly be done by their Representatives which are the three Orders or States of a Commonwealth namely the Clergy Peers and the Commons But that any part of the Empire may be firmly alienated a twofold consent is requisite first of the whole but more especially of that power which is to be alienated which cannot be severed from the body whereunto it grew against its will This was the French Kings Plea why he would not deliver Burgundy as he had upon his Oath agreed and promised But yet in a case of extreme necessity and otherwise unavoidable That very part may firmly conveigh away the Government over themselves unto any other without the consent of the People because credible it is that when that society was instituted this power was reserved But in Kingdoms that are Patrimonial what should hinder a King from alienating
last until some new declaration of the will of the Donor shall rescind it for in a dubious case that which was deemed sufficient to give a Right shall be presumed sufficient to continue it But yet not if he that granted it be disabled any longer to declare his pleasure as in case he be dead for then whatsoever depended barely upon the uncertainty of his will shall likewise cease as accidents do when the substance fails XXII A Pass implies protection A Safe-pass being granted protection is due even beyond the Territories of him that grants it because it ought to protect us against all the licence of War which of it self is not confined within the bounds of any one Princes Dominion as we have elsewhere shewed Bo. 3. ch 4 XXIII The redemption of Prisoners The redeeming of Captives is very much favoured especially among Christians it being an especial act of mercy commended unto us by the Law of God Redemptio magnum praeclarum justitiae munus were the words of Lactantius The redeeming of Prisoners is a great and singular part of justice And in case it be from Barbarians Matt. 25.36.39 De Offic. l. 2 c. 28. it is by St. Ambrose reckoned as the best and greatest liberality in the World and in that Apology he makes for himself and his Church for the breaking in pieces the consecrated Vessels thereby to redeem the Captives he affirms that Ornatus Sacramentorum est redemptio captivorum The chiefest ornament to Christian Sacraments is the redeeming of Slaves where also he hath many other such excellent sayings to the same purpose St. Aug. following the example of St. Ambrose did the like though contrary to the carnal sense of some who therein opposed him as Possidius relates The very same is recorded by Hincmarus in the life of Remigius And Adamus in his Ecclesiastical British History makes honourable mention of the like fact done by Rimbertus Archbishop of Breme And we likewise find it approved of by the sixth general Synod whose decree is recited by Gratian namely Causa 12. q. 2. That no Bishop shall presume to alienate any of the consecrated Vessels of their Churches unless for such causes as were of old approved of by the Ancient Canons of the Church as for the redeeming of Captives and the like XXIV Whether the redemption of Prisoners may by any Law be forbidden Being thus awed by so great Authorities I dare not absolutely approve of those Laws which forbid the Redemption of Slaves without a distinction such I mean as we may read of among the Romans Nulli Civitati viliores Captivi quà m nostrae There is no City so regardless of Captives as ours saith a wise Roman in open Senate For which cause Rome is called in Livy Civitas Captivis minime indulgens A City shewing little favour to Captives That Ode of Horace is very well known where he condemns the ransoming of Prisoners as an opprobrious act an example of dangerous consequence and is an execrable fact encouraged with a reward But what Aristotle blames in the Laconian is also usually blamed in the Roman Government namely that all their Polity tended only to the advancement of their Military Discipline as if in this alone consisted the safety of their Commonwealth whereas if we will but duly consider it as rational men with the allowance of some grains of compassion it would seem much better to rebate somewhat of that rigour which the licence of War permits than to leave so many of perhaps our Kinsmen and Countrymen in an everlasting slavery I cannot therefore conceive how such a Law can be reputed just unless it shall appear that such a severe course is necessary for the prevention of far greater and morally inevitable calamities which will otherwise in all humane probability fall upon us for in such a case of necessity as the Prisoners themselves ought by the rules of Charity patiently to bear their hard fortune so may this punishment be justly imposed upon them and threatned against others to deter them from the like cowardize according to what we have elsewhere written concerning any one Citizen which for the publick safety of the City may be delivered up XXV That a man may transfer his Right in a Captive True it is that to make Slaves of such as are taken in War is not agreeable to our Laws and Customes yet doubtless may that Right of exacting a ransome from him that is so taken by him that took him justly be transferred to another For by the Law of Nature things even incorporeal may also be alienated XXVI The ransome may be due to more than to one And possible it is that the same ransome may be due to several persons as in case a Prisoner being discharged by one the ransome not paid be apprehended by another and after that by another these must needs be distinct debts because they arise from distinct causes XXVII Whether an agreement for a ransome be null'd his estate or quality being not then known The ransome agreed upon shall bind the Contractors though the Prisoner be found richer than he was thought to be when the Contract was made because by that Right of Nations which is external whereby we are in this case to be judged no man can be compelled to give a greater price than what was first agreed on although undervalued if there were no fraud in the Contract as may easily be understood by that which hath been already delivered in the Chapter of Agreements * Lib. 2. c. 26. XXVIII What Goods of Captives are his that takes them From what hath been already said that Captives are not now to be made Slaves it follows That the Dominion that we have over their persons doth not give us an universal Right to all that is theirs as hath been elsewhere said * Lib. 3. c. 7. §. 4. for he that takes a Prisoner hath a Right to nothing but what he particularly lays hold on so that if the Prisoner can conceal any thing he hath from him he cannot be said to get it because he is not thereof possest Thus Paulus the Lawyer pleads against Brutus and Manlius He that takes a Field into his possession cannot be said to be possest of the treasure which he knoweth not to be there buryed for no man can be said to possess that which he knows not of Whence it will likewise follow that what the Prisoner can so conceal he may make use of for his Redemption XXIX Whether the ransome agreed on be chargeable upon the Heirs Another Question is like to arise namely whether a ransome agreed on the Prisoner dying before it be paid may be recovered from his Heir Whereunto the answer is easie for if the Captive dye in Prison doubtless the ransome is not due because the promise was made upon condition that the Prisoner should be set at liberty but he that is dead cannot be said to be at liberty But on the
which Cornelius Nepos made was assented unto by many of the Roman Senators as Gellius testifies namely That those two of the ten Captives who being bound by Oath to make their returns refused should by a strong Guard be conducted and delivered up to Hannibal especially considering that the same Senate had not long before compelled those to return whom King Pyrrhus had dismist upon the like Conditions XI What interpretation we should give to such a Contract Concerning the interpretation of some words in such an Agreement we are to be guided by those Rules which we have often recited that is to say We ought not to recede from the proper signification of the words unless it be to avoid some absurdity that would from thence follow or that we be induced thereunto by some other very strong conjectures and where the words are ambiguous that we incline to that sense that makes most against him who gives the Law XII How these words Life Garments the coming of Aids are to be understood As he that covenants for his life only hath no Right to his liberty under the name Apparel we are not to comprehend Armes Aids are then said to come when they are in sight though they do nothing for their appearance hath some kind of efficacy XIII Who may be said to return to the Enemy But he cannot be said to return to the Enemy who returning privately presently departs For our promise to return is not fulfilled until we have put our selves under the same power of the Enemy as we were when we promised to return The contrary interpretation Cicero accounts to be merely delusive and foolishly crafty introducing fraud and sometimes perjury And Gellius calls it a fraudulent Cheat always branded by the Censors with reproach and the persons that made use thereof rendred intestable XIV Succors when said to come In Agreements made Not to surrender in case just succours should come within such a time to their relief such succours are to be understood as are sufficient to repel the Enemy and secure us from farther danger four Examples whereof are recorded by Procopius Goth. l. 3. XV. That which relates to the manner of the execution is no Condition This also deserves to be observed That if any thing shall be agreed on concerning the manner of the execution that shall be annexed unto the Agreement as a Condition As for example In Case a Safe-Conduct be granted to such a place and that place before we can arrive thither happen to be in the possession of the Enemy the Agreement is not fulfilled until we come where we may be in safety XVI Of Hostages to perform such Covenants As to Hostages we are to be guided as abovesaid sometimes they are but Sureties for the acts of their Principal but yet it may be so agreed that the Obligation should be disjunctively understood that is to say That either such a thing shall be done or the Hostages may be detained But if the meaning be doubtful we must incline unto that which is most natural which is That they shal be held as Sureties only until such things shall be performed CHAP. XXIV Of Faith tacitely given I. How Faith may be given by silence II. An example in one desiring to be received into protection by any Prince or People III. In another that either demands or admits of a parly or treaty IV. That it is lawful for either party during a treaty to promote his own interest so that he hurt not him with whom he treateth V. Of dumb signs which by custome become significant VI. Of a silent approbation of something demanded VII A punishment when it may be presumed to be remitted by silence I. Faith given by silence THAT some things are by silence agreed on was not ill observed by Javolenus for this is usual in most agreements whether they be publick private or mixt the reason whereof is because it is our consent only however signified and accepted that hath the power to transfer our Right But this consent of ours may be otherwise exprest than by voices or letters as we have already shewed for some signs are naturally included in the act it self II. As in him that desires to be admitted unto protection As for example He that coming from an Enemy or as a Stranger commits himself to the Faith of another King or People doth without doubt tacitely oblige himself not to act any thing against that State under which he desireth protection we cannot then agree with them who justifie that act of Zopyrus who not being able to conquer Babylon by force cut off his own Nose Ears and Lips and so mangled fled into the City and perswaded the Citizens that Darius his Master had done it in revenge for speaking somewhat in their behalf and having thereby got into some place of eminent trust betrayed the City unto Darius For Zopyrus his fidelity unto his Prince could not justifie his perfidious dealings with them to whom he fled and by whom he was received into protection The like may be said of Sextus the Son of Tarquin who betook himself for safety to the Gabii Virgils censure upon the like fact of Sinon was this Now Graeci'an Treacheries view and from this one Learn to avoid the rest III. And in him that craves a Parly So he that demands or admits of a Parly gives his Faith tacitely that during that Parly both Parties may be secure * Lib. 1. Agathias condemns Ragnaris the Hun for attempting to kill Narsetes in his return from a Conference whereunto he had invited him This Livy concludes to be a manifest breach of the Law of Nations when Enemies under the colour of a Treaty shall lay wait to destroy each other which he there stiles Colloquium perfide violatum A treaty most perfidiously broken Liv. 38. Upon that fact of Cnaeus Domitius before-mentioned in treacherously seizing upon King Bituitus whom he had first invited to a Parly and afterwards entertained as his Guest Valerius Maximus gives this censure Nimia gloriae cupiditas perfidum existere coegit Lib. 10. c. 6. His immoderate thirst after glory constrained him to be perfidious Wherefore I cannot but admire why he that wrote the eighth Book of Caesars Gallick Wars rehearsing the like fact of T. Labienus adds these words Infidelitatem Comii sine ulla perfidia judicavit comprimi posse He conceived that Comius his disloyalty might be thus supprest without any imputation of Treachery IV. During a Parly each may promote his own interest not hurting the other Neither may we wrest this tacite consent beyond what I have said for if carrying themselves inoffensively one towards another during the conference they can under the colour of that conference divert their Enemies from their Warlike Counsels and in the mean time strengthen themselves and promote their own affairs this shall not be accounted treachery but policy such as in times of War are not lawful only but
commendable wherefore they that blamed King Perseus for suffering himself to be deluded through hopes of Peace had not so great a regard to justice and fidelity Liv. l. 42. as to the generosity of a mind emulous of Martial Glory as may be sufficiently collected from what hath been already said concerning the deceits and stratagems usual in War Such was that stratagem wherewith Asdrubal preserved himself and his Army out of the Ausetane Forests And that also whereby Scipio African the Elder See Bo. 3. c. 1. §. 6. c. Livy l. 26. lib. 30. discovered the situation of Syphax his Camp both which we find recorded by Livy whose example L. Sulla also followed in the social War at Esernia as Frontinus informs us V. Of dumb Signs which by custom are significant There are also some dumb signs which through custome are significant as testifying the consent of the will as of old the branches of Olives and among the Macedonians the erection of Pikes among the Romans the covering of their heads with their Shields these were then the usual signs of submission and rendition So also was the folding of the hands behind them among the Persians and the turning of their Shields and Ensigns downwards among the Romans Lib. 18. Lib. 26. Lib. 22. as Ammianus testifies The Germans and from them some other Nations express their submission by the holding forth of Herbs or Grass as Pliny tells us And they that yield themselves to the Conquerour do usually cast away their Armes and beg mercy as Servius notes upon Virgil. But he that would signify his acception of a surrender whether he be bound to give quarter and how far forth we may inform our selves by what hath been said above In our days the hanging forth of a white Flagg is a tacite sign that a Treaty is demanded So among the Northern Nations is the kindling of a fire as Johannes Magnus relates Pliny l. 15. c. 30. The like doth Pliny write of the Laurel all which according to the customes of several Nations are no less significant and consequently as obligatory as if they were exprest by words and voices VI. Of a tacite approbation of something demanded A Sponsion made by a General how far forth it may be believed to be tacitely approved of by the Prince or People we have already declared * Bo. 3. ch 4. §. 15. Bo. 2. ch 15. §. 17. as namely when both the act is sufficiently known and thereupon some thing done or not done whereof no other reason can be given but what proceeded from their consent to that promise or agreement VII Punishments when tacitely remitted We cannot conclude that a punishment is remitted because it is for a time dissembled or connived at but some other act must necessarily intervene which either by it self may argue either a perfect reconciliation as when a League of friendship is made with such a man or at least that the person offended hath so great an opinion of the vertue or the valour of the person punishable that what he formerly did deserves to be pardoned whether this opinion be by words exprest or by such other means as are usually taken to signifie as much VIII Whether the actors being pardoned the instigators be also acquitted Another Question we find discust by Polybius namely Whether a punishment being remitted to them that did the mischief may be judged to be remitted to them that commanded it to be done which I conceive it ought not for Singulos tenent sua delicta Every Fox ought to pay his own skin to the fleaer and every offender bear his own punishment A TABLE put Alphabetically guiding to the PRINCIPAL MATTERS and WORDS contained in the TREATISE A. ABraham declaring Sarah to be his Sister did not deny her to be his Wife page 438 Abraham by the light of Nature made War upon the four Kings with Commission from God 13 15. and gave the Tenth of the Spoil unto God page 468 Abraham's Sons by Keturah had Legacies no Lands page 125 Abraham assists Infidels in a Social War page 185 The Absents Right devolves upon the Present page 114 The Absent sometimes partake of the Spoil page 476 Absolutions and Dispensations from Oaths from whence they arise 174. to whom they anciently belonged ibid. Abstinence from spoiling a Country at Peace page 431 432 Absurdities to avoid conjectural Interpretations admitted 197. or other improper or figurative page 192 193 What is Accepted in full of a Debt is a Discharge page 98 Acceptance to a Promise that transfer a Right requisite 154 155. whether it be necessarily to be made known to the Promiser page 155 Acceptance in the behalf of another of what force page 156 Accusations criminal by none but Persons Authorized page 374 Acquisitions by War peculiar to a solemn War 480. naturally just 405. original Acquisitions page 88 Acquisitions improperly said to belong to the Law of Nations page 134 To Actions two things excite the goodness of the end and the facility of obtaining it page 419 Acts some abhorred by humane Nature page 6 Acts contrary to Oaths sometimes sinful sometimes void page 173 Acts beneficent permutatory page 157 Acts diremptory commutatory mixt page 158 Acts generally permitted to all cannot justly be denied to any without some Cause page 86 Acts in War either publick or private what is taken by the former is the States maintaining the War what by the latter is theirs that take it page 472 In such Acts of a King as private men do the Civil Law binds him but not in such as he doth as a King page 177 Acts against Conscience unlawful page 411 Acts not liable to humane Laws page 450 Acts of Kings in which the Laws have power page 176 Acts internal of the mind insufficient for alienation page 41 Act involuntary arising from voluntary naturally accounted as voluntary page 203 Acts inevitable to humane Nature not subject to humane Laws 374. nor such â—s are not directly or indirectly destructive to humane Society page 375 Acts some in a Just War not internally just page 498 Acts of prepensed maâ—â—â— are to be punished of humane frailty and are to be chastised of inevitable misfortune are to be pardoned page 500 Actors being forgiven whether the Instigator be acquitted page 370 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 136 Admonitions concerning things done in an unjust War page 494 Adopted Sons what Right a man hath over them page 115 Adultery Incest c. capitally punished before Moses page 16 Adultery to lye with a Woman betrothed to another page 196 Of Adultery he that puts away his Wife and he that marries her both guilty by the Gospel page 106 In Adultery taken if the Husband kill the Wife or the Wife her Husband the Magistrate may remit the punishment but not the sin page 374 An Adulterer and an Adulteress to what obliged page 202 Aetolians Souldiers of Fortune page 549 Age 30. years 3. Ages 100. years
236. under Alexander deny to carry Materials to the Temple of Belus 428. in what Cases not to associate with wicked Kings page 185 Ignorance excuses when page 237 Ignorants to be spared in a Just War page 500 Ignorantly and through Ignorance distinguished ibid. Islands and Increments by inundation whose 136. floating 137. how distinguished from Increments ibid. Images abhorred by the Persian Magi 466. to deface to him that believes to include a Deity impiety ibid. Imperare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 50 Impiety and open profaneness towards any that is acknowledged as God punishable page 392 Imprisonment unjust to what it obligeth page 201 Importation of some goods prohibited page 86 Of Inequality The Law of Nation takes no cognizance if consented unto page 165 Incestuous Marriages forbidden by the Law of Nature 107. two reasons given against such page 109 An Increment what is thereby meant 138. whether stopt by an Highway 139. it is his whos 's the River is oâ— his whos 's the Grounds are that bound it 138. it is his to whom the Land is granted if the Land be arcifinious ibid. if in doubts is the peoples ibid. whether it may belong to the Princes Vassal ibid. Indians many Wives 106. no Tribunals but for murder and injuries done page 211 Induciae whence page 558 Infants capable of Dominion 89. but not to dispose thereof without a Guardian ibid. so is he to inherit but not to dispose of it page 103 Infeudations 119. made by Kings without the peoples consent void with consent how gained ibid. Ingratitude of the Romans punished by M. Levinus with disfranchizement page 39 To Inhabit any Country free for Exiles page 85 Injuries faults mischances distinguished 500 on the one side makes War just on the other 70. what oblige to restitution what not page 531 Injure others we ought not to benefit our selves page 82 Injuries done us by our Country Prince Parents to be patiently born page 58 Injuries intended only sometimes punished page 383 Innocents to be defended page 425 426 The Innocent not to be destroyed with the Nocent page 504 The Innocent falshood of Joseph to his Brethren page 443 Instruments of the Plough not to be taken in pawn page 514 To Insult over the Vanquished ignoble page 506 507 Intent sometimes equally punished with the fact 381. though ill obligeth not to restitution page 383 Invaders Command how far obliging 62. in what Case he may be killed by a private man page 65 For the Interpretation of Promises and Contracts some Rules page 193 What Interpretations given to contracts between Enemies 558. if odious in their full propriety if ambiguous in the largest sense page 193 Interpretation of Leagues 190 sometimes gathered from the Context 191 192. if in doubt ought to favour the weakest page 548 Intestates Estate to whom naturally it descends page 122 Invasion made by Confederates or their Subjects whether it break the Peace 548. by Subjects when attributed to the Prince ibid. By Inundation the Owner may lose his Right page 137 Inundations and Increments thereby gained page 136 137 Josephus in expounding the Hebrew Law flatters the Romans page 466 To Judge of the Cause of a War between Princes dangerous page 457 The Judges Office in criminal Causes dangerous page 373 A Judge should be tenderly affected as a Father 416 417. may be punished his Sentence being unjust but not the Executioner 429. said to be just though the Sentence be unjust page 55 In Judgment the matter not the Persons to be considered page 3 4 To Judge of a mans meaning by his speech how due page 441 Judgment of zeal what page 445 Judgment contemplative and practical page 429 Judging of the Supreme Power Caâ—tions page 41 The Judgment how steered in doubtful Cases page 411 Against Judgment though erroneous nothing to be done ibid. Judgments Capital why by Christ permitted 372 373. Christians may execute them but not affectedly ibid. Jus and Justice how distinguish'd page 494 Just in War what page 2 Just taken strictly what page 414 Justice derived from Jove Pref. vi Justice and Valour usually attended by Victory xii Justice Expletive and Attributive page 4 Just Cause procures Friends xii Just Cause adds courage to Souldiers ibid. Justice Commutative or Expletive page 3 Justice how described by Porphyry v. preferred to fortitude x. it begets courage 430. it so gives to every one his own that it detracts not from the just Right of another 198. it should extend it self to all Mankind x Where Justice is not required the longest Sword takes all page 435 K. KEturah's Son by Abraham received Gifts or Portions but no Inheritances page 125 He that Kills an Enemy in the War is guiltless page 357 To Kill a man for slight injuries is againast Charity 73. in defence of our Goods naturally not unlawful page 74 To Kill a private man is murder but thousands in an unjust War Valour and Vertue page 70 To Kill a Nocturnal Thief whether tolerated only by the Civil Law or approved 75 76. an incorrigible Malefactor not against the Law of Nature page 368 To Kill an Enemy after Battel against Charity page 506 To Kill an Enemy privately in his own Quarters whether lawful page 462 To be Killed none for his valour in defence of his own cause if good page 568 To Kill all that have offended brutish page 501 Who may be justly Killed in a just War according to Justice internal page 498 Kings Grants when revocable and when not 180. their Contracts do not always bind their Successors page 178 179 Kings how they serve God as Kings page 17 18 Kings whether bound by prescription see Prescription Kings that make Laws not subject to Laws 377. not all constituted by the People 40. not bound by their own Laws directly 101. in name some not in power 39. whether he may renounce his Kingdom so as his Son shall not inherit page 131 Kings raised by providence fit for the times and People 41. they have no superiour but God 40. their vices must be born with patience ibid. to revile them is wicked but to kill them though wicked horrid page 39 A Kings person to be spared in cases of absolute necessity page 66 Kings regard honour more than power yet doth not this abate of their Right 54. their private Acts subject to the Laws page 177 Against Kings the Law that makes void any private mans Acts by way of Punishment is void ibid. Kings Promises Contracts and Oaths page 176 A Kings word as firm as an Oath page 175 A King may null his own Oath as private men antecedenter not consequenter 177. whether he may revoke his own acts which he doth as a King page 176 Kings defended by severe Laws page 61 By the Contract of a King how the Heir may be bound page 178 How a King may be bound to his Subjects naturally and how civilly page 177 Kings bound by their own Laws as a member not as the body
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseâ—t 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
sorts of Murtherers page 196 197 Laws guide to wisdom Pref. ix Laws may so far proceed against a King as to evidence the Right of the Creditor but not to compel him page 177 178 Contrary to Law things done not nulled unâ—ess so exprest by the Law it self page 147 Laws bind not in cases of extreme necessity page 567 Laws made to avoid greater mischiefs only must not be so understood as to make that sinful which is otherwise lawful page 483 Laws without a coercive power externally weak Pref. ix Laws and Arms opposed Pref. ii The six Laws given to Adam what page 8 There is the same Law where is the same reason or equity page 196 Humane Laws to be interpreted with some allowance for humane frailty page 59 The Law in prohibiting doubles the offence 380. of Moses erroneously quoted for that of Nature Pref. xviii Without Laws no community can consist Pref. ix Laws humane depend upon the will of the maker for their institution and continuation page 21 22 Laws may bind as to humane judgment that bind not the Conscience 483. nor bind longer than the coercive power lasts ibid. severe in the defence of Kings page 61 Laws commanding stronger than those that permit and those that forbid stronger than those that command page 199 The reason of a Law particularly failing shall not exempt that case from the Law but it may be dispensed with page 35 Lawful taken either for that which is just and honest or for that which is not punishable page 456 The Law of Nations how beneficial Pref. ix it is like the Soul in the Body page 451 Humane Laws depend upon the will of the Lawmaker both for their institution and continuation page 377 A League what 181. when said to be renewed 187. void if by either broken ibid. Of Leagues the Ancienter to be prefer'd ibid. that made with a Free people real ibid. that with a King not always personal ibid. A League holds with a People or a lawful King though exil'd his Kingdom but not with an Vsurper page 195 League equal or unequal page 183 Leagues how they differ from Sponsions ibid. Leagues unequal 48 183 184. give no jurisdiction properly page 49 In unequal Leagues Kings or People may be equal in freedom though not in dignity ibid. In Leagues who are superiour page 49 50 Leagues some require exact natural Right only and why 182. its breach is a matter odious page 193 The Prince of the Leagues may be said in some things to command page 49 50 In Leaugues unequal the danger whence page 51 Leagues unequal contracted sometimes where no War is 184. whether to be made with men of different Religion ibid. this proved by experience 185 186. some cautions page 186 Leagues forbidden to be made with some Nations and why page 184 Of Leagues some favourable some odious some personal some real page 195 Leagues of Peace and society these either for Commerce or War page 182 183 Whether they that are unequally Leagued have the Right of Embassages page 206 Leagues divided page 182 A League for a set time not by silence renewed page 187 No League binds to an unjust War page 186 No breach of League to defend the injured Party if in other things the Peace be kept page 194 Leagues never made but between Soveraign Princes page 181 Leagues of Joshua with the Gibeonites 169 he might not make a League with the Canaanites and why page 184 In Leagues words of Art interpreted according to Art 191. the stronger gives the greater power the weaker the greater honour 49 50. this Article not to make War without consent is to be understood of an offensive War only page 194 A League made with a Free People is real and binds though they admit of Kings unless made with other Free Cities to defend their liberty page 195 The Lenity of the Ancient Fathers towards them that erred in things Divine page 391 Letter of Marque page 448 Liberty personal recovered by Postliminy 489. or Peace which to be prefer'd page 419 The Liberty of a People what it signifies 42 43 c. of making War not rashly to be believed to be renounced page 193 The Liberty of Subjects obliged by the fact of their Superiours page 447 Liberty natural is to live where we list page 115 Liberty the usual Cloak of Ambition page 65 Liberty lost to recover no just cause of War page 407 Liberty some left the Conquered may secure the Conquerour page 527 Life prefer'd before Liberty page 419 The Lesser number to yield to the greater not natural page 139 Long possession see Possession Lots sometimes end a War page 551 Love of Parents toward their Children more natural than that of Children towards Parents page 123 A Lye strictly taken what 440. forbidden 439. by some good Authors in some cases approved 440. a wholesome lye the jocular and charitable not much blamed page 442 443 The form of a Lye what 441. whether naturally unlawful ibid. To Lye and to tell a lye differenced by Gellius page 440 Lyes our refuge in danger Rahabs lye page 443 No Lye if by an untruth spoken by me a By-stander be deceived page 442 Of Lyes the Schoolmen admit not but they do of Equivocations page 443 444 A Lye to preserve life whether lawful page 443 To Lye to an Enemy lawful 439 443. to be understood of words assertory not promissory 443 444. yet not if bound by Oath ibid From Lying to abstain even to an Enemy magnanimous page 444 Lying to be excluded in all Contracts in a Market page 441 To Lye in time and place fitting the part of Stoical wisdom page 440 Lying ill becomes a Prince 444. fear and poverty make Lyars ibid. For Lying and Perjury the punishment the same page 175 It is no Lye if in an Amphibology our words agree with either sence though misunderstood page 440 M. MAccabees resistance what page 60 Macedonians put all that are of kin to Traitors to death page 403 Magistrates should punish Offenders as Parents do Children page 417 Magistrates killing men are innocent but private men doing the same are Murtherers 374. whether they may remit punishments 375. Inferiours must not resist the Supreme 58. why chosen 376. they must judge according to Law but Princes the Laws themselves page 377 No Magistrate chosen without an Appeal to the People of Rome page 65 Magistrates Inferiour may reduce Rebels in a Case of imminent danger page 35 Magistrates Christians in St. Paul's time page 18 Magistrates amongst the Jews did not resist their Kings though wicked 57. in what Cases obliged to reparation of damages 203. how far they may oblige Citizens page 564 Magistrates not taking caution from Privateers whether obliged for the wrongs they do to their friends page 203 The Magnanimity of the Romans in respect of the Greeks page 445 Mahometans hold a necessity of restitution page 495 Majesty taken for the Dignity of the Person governing 49. what that
be understood as he understands to whom they are made 167. called Vows and why 172. the end of all controversies 172. bind not to things unlawful 169. of Joshua to the Gibeonites binding page 168 169 The Oath of the Roman Souldiers to the Carthaginians binding page 167 168 An Oath not to be too far wrested 169. not to do good not binding 170. nor that which hinders a greater good ibid. cannot bind to impossibilities ibid. by false Gods binding 171. by the Creatures obligeth ibid. by fraud or fear extorted must be fulfilled for the Oaths sake 172. made to Pyrates or Tyrants obligeth ibid. In Oaths two things requisite truth in words and fidelity in Actions ibid. Over Subjects Oaths what power Superiours have page 173 By a false Oath to deceive an Enemy Perjury page 172 Of Oaths some are assertory and some promissory 174. the latter forbidden by James and Christ ibid. Oaths should except necessity and coaction page 123 From Oaths Absolutions from whence originally page 174 By Oaths promises made in what Cases oblige not page 173 An honest mans word as good as his Oath page 175 An Oath to perform Kings bound before God page 177 Oaths from Subjects should have this restriction Vnless my King command the contrary ibid. Philip of Macedon regardless of Oaths page 537 The form of Oath Military page 28 To Obey more natural to some Nations than to command page 38 Obedience in what cases necessary 55 56 429. sometimes unlawful 427. especially in things forbidden by God or Nature 53. to commands unjust not due 429. readily yielded by him that understands the reason of the Law page 430 Obedience to Parents and sustentation to Children due 123. yet it cannot justify our disobedience to God page 427 Obligation restraining the faculty or the exercise of such an Act only the difference page 47 48 Obligation feudal see Feudal Obligations arising from Dominion page 146 Obligation internal gives no Right to another page 151 Obligations all require deliberation page 551 552 Obligations by Officers with our default from what Law it proceeds page 203 204 Kings may be obliged either naturally or civilly page 177 Obliged we may be by another page 154 Oblige we may whatsoever we have absolute power in or over page 400 401 Obliged we may be to a Pirate or Robber being not terrâ—fyed by fear page 538 Obliged a man may be by some Delinquency page 200 Obliged none can be to an unjust War page 187 Of Obligations without compulsion examples page 211 Obstinacy to defend our own Party no just cause to kill an Enemy page 508 By the Occasion of anothers sin a man may suffer though that sin be not the cause of his suffering page 401 Occupancy its Rights where things are in common page 78 By Occupancy what every one had was the first rise of propriety page 79 Of Occupancy after the communion was lost page 80 Occupancy presumeth things bounded 81. as Lands by Mannors or Farms ibid. of Empire and of Dominion as distinguished from Empire 88. it was the original way to gain Dominion by the Law of Nations page 135 What if it be of a place pre Occupied by men irrational page 407 The Occupant in doubtful Cases hath the best Title page 414 To the ancient Occupants Lands restored by the Emperour Honorius after three hundred Years page 492 Odious Promises which 192. how to be interpreted ibid. Leagues and Promises if in doubt are personal page 194 Offenders being demanded when to be delivered page 395 396 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 439. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 407 Old men in War to be spared page 505 None the same Old as young page 141 Opinions concerning God being not easily demonstrable no cause of War page 389 Our Opinions especially concerning Religion hardly parted from page 391 Oppression notorious a just cause of War if without danger to our selves page 424 Oppression of Subjects where greater than the miseries of War War may be made against Tyrants page 421 Ordinance of God in what sense Kingly Power is said page 18 Order what among Equals or Associates page 114 The Order of such as have equal shares in things ibid. In what Order they are bound to restore who have occasioned damages page 201 202 The Order of Christian Kings sitting in Council page 114 Original acquisition page 88 Owner right not known none bound to restore page 149 The right Owner transferring his Interest is a sure Title page 151 Oxen forbidden to be eaten to be spared in War page 514 P. PApinianus put to death for not defending Parricide page 428 Parents to be nourished 123. though severe to be obeyed 57. to be reverenced as Gods Pref. vii honour and obedience due to them 123. differing in their Commands whether to obey 103. their Right to sell or pawn their Children what 104. their Right over their Children different according to their several Ages and Conditions 103 104 their Estates due to their Children by a twofold right 124. whether they owe any part of their goods to their Children by the Law of Nature 122. their love to their Children more natural than their Childrens to them 123. their power to punish as well as to govern their Children 104. never exheredate their Children until they prove incorrigible 416 417. Their Marriage with their Children unnatural page 107 Parliaments to what end called page 42 A Parly demanded and accepted renders both sides secure 569. during each may promote his own interest so that he hurt not the other ibid. under pretence of a Parly Bituitus was treacherously taken Captive by the Romans ibid. Parricides page 28 Particulars if they consent not not punishable for the whole page 399 Partition just where the Title is dubious and neither possest page 414 Passage denied may be by Armes forced page 83 Passage by Land or Sea common to all ibid. how Armies may pass safely without danger page 84 Passionate acts more pardonable than deliberate page 380 Pater Patratus what page 546 Patience commended by Christ's example 63. preferred before revenge 33. in bearing reproaches 21 22 23. in a Governour or in a State punishable page 393 Patrimony distinguisht from the profit of it page 120 Paul refused not a Guard of Souldiers page 20 Parents that receiveth to what bound page 160 Peace profitable to the Victor Vanquished and those of equal Power 572. once obtained to be religiously kept 571. its Articles how to be understood 546 547. all of them to be equally observed 549 572. when said to be broken 548. to be embraced though with loss 572. not to be patcht up but firmly made 547. being made all publick injuries though then unknown presumed to be remitted 547. to purchase from an Enemy too Potent no dishonour page 418 For Peace whether the Goods of the Crown be alienable 544. or the Goods of Subjects 545. the Empire or any part thereof ibid. Peace by whom it may be made 544. being made by
whether by force or fraud justifiable page 437 438 Protectorship in the minority or disability of Kings to whom page 44 Protection takes not away Civil Liberty 49. it doth not always argue subjection 50. due to the oppressed but not to wilful Malefactors page 496 Provocation to sin wbence 379. causes of restâ—â—â—niâ—g ibid. Prudence â—onversant about things indifferent called the Tree of Knowledge of good and evil 79. a Vertue proper to Princes Justice to men as men page 418 419 430 Prudential Rules guiding us in the choice of things good page 430 Pupils not bound to pay Debts unless they gain by what they borrow page 147 Publick Good preferred before private page 56 Publick Remonstrances forbidding the importation of Goods before they can be made Prizes page 436 437 Publick profit preferred before honesty confuted Pref. x Publick safety consists in well commanding and well obeying page 57 Publick things distinguisht from things common page 89 Punishment of Kings what page 41 Punishment what 362. the Cure of wickedness ibid. proportionable to the Crime ibid. sometimes publick when the sin is secret ibid. how said to be due page 363 To Punish all sins equally unjust page 362 Punishment to what end ordained 363 365 all refer to the time to come 364. Not as sweet to the Punisher but profitable to the Punished ibid. God punisheth sometimes to shew his power and merely for revenge ibid. To Punish the incorrigible with death better than to suffer them to live page 366 To Punish any man hath a right naturally that is himself innocent page 367 By Punishment what benefits accrew page 368 Of Punishments exemplary ibid. All Punishment not remitted to the Penitent Objections answered first from Gods Mercy page 372 Punishments not all Capital 376. not necessary when the end may be attained without it ibid. may be remitted both before and after the penal Law be past page 376 377 Of Punishments some may be remitted some severely exacted some may be either page 376 From Punishment some Causes exempt Offenders page 377 Punishments should be proportioned to merit 378. do not always argue civil Jurisdiction 385. vary according to the capacity of the Offender to judge between good and evil page 380 381 Beasts properly not punishable page 401 Punishment by bare Counter-passion rejected page 381 In Punishing regard to be had to the quality of the person punished ibid. no acceptation of persons ibid. The Punishment of Cattle stolen out of the Field or out of the House ibid. Punishments ought to be milder than the Laws 382. exemplary upon such only as are incorrigible ibid. Of Punishments a man may partake by reception of Malefactors 395. and how otherwise page 393 Punishment of individuals is death of Cities Desolation 399. communicated between Bodies politick and its Members how far ibid. How a man may be involved in the Punishment that is not partaker of the Crime with some Cautions page 400 For what the major part decrees the minor dissenting are not Punishable page 399 None Punished properly for the sin of another page 401 Punishment for publick injuries may be exacted at any time during the Offenders life 400. may be remitted or mitigated for some preceeding Merits page 417 Punishment better remitted than exacted by War especially by injured Kings page 416 417 When Punishments are tacitely remitted page 570 In Punishments the measure whence collected page 379 In Punishments retrospection to be had to our former lives ibid. Punishment once due may at any time be exacted page 399 All Punishments if great have somewhat of Justice in them but somewhat also that is repugnant to Charity page 376 The Purpose and intention only sometimes punished page 383 Q. QUalifications natural transfer no right page 368 A Question put if in the whole it cannot be assented unto it must be discust in parts page 114 The Quarrel is begun by him that provokes it page 499 R. RAbirius perfidiously dealt with by Marius page 565 Ransome agreed binds though the Prisoner be of better quality than was supposed page 562 The Ransome of Prisoners vary page 523 Redemption of Captives much favoured amongst Christians 561. whether it may be lawfully forbidden page 562 Ransome whether chargeable upon the Heir ibid. A Rape committed in the Feild and in the City the difference page 75 Ravishment whether in War lawful 463. the most civilized Nations restrain it 464. against it no Law extant before Moses page 110 Reason adequate what it operates 408. the foundation of Law 6. natures best guide page 11 The Reason of the Law directs us to the meaning of it 192. none so readily obey as he that knows the reason of the Law ibid. The Reason of the Law not always the same with the meaning of the Law ibid. When the self same Reason justifies an extended signification of the words of a promise page 196 197 The Reception of Malefactors tolerated unless they are such as disturb the Peace page 398 399 550 551 The Reception of Exiles Fugitives and such as come to inhabit no breach of Peace page 550 551 Redemption of Captives much favoured ibid. The Redeemed how far bound to the Redeemer page 490 For the Redemption of Captives the consecrated Vessels sold page 561 Reformadoes what they may do by internal justice either in respect of themselves or their Prince 535. what Christian Charity requires of them ibid. Refuge Cities of what use page 397 Regal Power exercised by the Roman Dictators though not under the title of Kings page 41 Relief sent to a Town closely besieged to what it obligeth page 435 Religion mens chance not choice every Nation thinks his own best 389. in what sense it belongs unto the Law of Nations 387. it restrains both Prince and People 386. how necessary for humane society ibid. its foundation is to know God and his Providence 388 382. it depended among the Jews upon no other humane Authority than upon the King and Sanhedrim 59. in defence of our Religion and Liberty War lawful page 416 Religion freely left to the Conquered no prejudice to the Conquerour page 527 Religious places obnoxious to the licence of War 465. they ought to be spared page 515 To Remit punishments sometimes better than to exact them page 376 Renegadoes punishable when page 396 Rents not to be abated for a barren Year page 162 Renunciation of a Kingdom whether it prejudiceth the Children born or unborn page 124 125 131 Reparation for damages done primarily and secondarily 201. he that encourageth or commendeth a Malefactor is bound ibid. To Reparation how far an Homicide is bound 202. so for Mutilation loss of liberty Adultery Ravishment Robbery defrauding of the Kings custome ibid. The Principals and Accessaries how far bound to Repair damages page 201 To Reparation they are not bound that omit what in charity is due ibid. Reparation for damages done to Friends by Letters of Marque granted against Enemies whether due from the Grantors page 203
Representative Succession admitted by the Hebrews 124. when in doubt to be allowed of ibid. but lately admitted among the Germans ibid. Reprizals what 448. the Sea-Laws concerning them 435 436. their Right reacheth not to the Lives of such as are innocent 448. they may be taken when no War is denounced page 447 When the Right of Reprizals passeth to them that take them page 449 Concerning Reprizal their difference of the Civil Law and the Law of Nations and what persons and Goods are exempted page 450 Things taken without the Territories of either Party whether lawful Prize page 480 Res rapere Res reddere what page 456 Request of a Superiour in a League equivalent to a Command page 51 To Require things what it signifies page 453 Required what is before War be denounced page 452 Resistance of the supreme Power whether in extreme necessity lawful 54 55. disallowed by the Primitive Christians even to persecuting Emperours 57 58. unlawful by the Gospel 55. the opinion of Barklay concerning it 63. in what Cases lawful 59 60 justifiable by inevitable necessity by the example of David and the Maccabees 60. naturally lawful civilly not 53. and why page 54 Obstinate Resistance justifies not the killing of men internally page 508 Resistance in some Cases may be reserved in the translation of Kingdoms page 60 To Restitution who are obliged either by doing or not doing page 201 Restitution ariseth from Dominion page 146 No Restitution of things which are anothers if in Case they perish if in Case we use them thinking them our own 148. yet are we bound restore the profits if any be ibid. Restitution must be made of the things and profits 147. necessary to repentance 495. it must be made to the right Owner 147. not due in some Cases page 149 Restitution intended justifies not Rapine unless in a Case of absolute necessity page 149 Things bought or deposited may be restored to their Right Owner page 149 Restitution of things taken in an unjust War 528. what may be deducted 529. it must be to the full page 496 No Restitution of places or persons freely surrendred unless so exprest page 546 Of Restoring things after War some Cautions page 547 No Restitution in a just War sometimes by reason of the evil intention in its prosecution page 331 Restitution where the Câ—â—se of War is doubtful how to be moderated page 530 Restitution of things taken from the Enemy who held them unjustly page 451 452 To Restitution who are wholly and who in part bound page 202 Retaliation not to extend beyond the persons offending 461 539. agreeable to the Law of Nations 367. tolerated under the Law to avoid greater mischief 371. not to be exacted by Christians ibid. in what sense required by the Hebrews its use both amongst Hebrews and Romans ibid. Retreat sounding to kill an Enemy is homicide page 534 Return to the Enemy who may be said page 531 Revenge by retaliation naturally lawful page 366 367 Revenge whether agreeable to the Law of Nature 364. whether by the Law of Nature and Nations lawful 366. whether permitted to Christians how restrained 369 370 it differs not from injuries but in order only 364. taken with delight unnatural 370. in that it mitigates grief whence it proceeds page 364 To Revenge his own Quarrel every man hath a Right naturally 66. why now committed to Magistrates 370. not to go beyond the persons that injured us page 400 Reward for labour how encreased or diminished 162. to whom due if two at once fulfil the Condition page 196 The Reward promised to Thamar due by the Law of Nature not by the Civil Law page 154 A Reward demanded by a Souldier for killing his own Brother in the head of his Enemies Troops page 458 Right in War what 2. taken for a moral qualification of a person divided ibid. for aptitude or fitness 3. taken for a Rule or Law 4 divided into natural and voluntary ibid. Right reason a Rule infallible ibid. Right by the Law of Nations distinguisht from that which hath some effects of Right Pref. xv Right of Government distinguisht from the ill management of Civil Affairs page 41 Right distinguisht from Just 54. Right extreme sometimes extreme wrong ibid. What Right of Kings it is that Samuel describes page 54 What Right a Lord hath over his Slaves 115. whether it extend to death 116. over the Children of his Slave born in his house ibid. A Right a man may have to that taken from another page 122 Right acquired by Law 121. By the Civil Law none can right himself page 122 Right of a Father over his Children distinguisht into Natural and Civil 104. of an Husband over his Wife 104 105. of Societies over their Members page 114 By the Right of Nations many things claimed that are not thereby due page 134 The Right of Strangers not subject to the supereminent dominion of a King 178. nor of a Subject without Cause ibid. Right better lost than contended for sometimes 416 417. not to be extended to the full 434. when said to be denied 448. considered directly and indirectly page 434 A Right none can give that hath none 528. incorporeal gained by War page 486 The Right of War makes no distinction of Age or Sex page 459 The Right of the Sword in Histories sacred and prophane what page 17 Right distinguisht from its exercise page 52 The Right supereminent of Kings and States whether it can free them from the breach of Faith given to their Subjects page 539 Right external what 395. how differenced from internal page 453 The Right of Kings and States when by Peace said to be remitted page 547 The Right of Nations concerning inequality in Contracts page 164 Righteousness Judgment and Mercy how distinguish'd page 177 Rivers how held in propriety 89. the whole sometimes belongs to one Territory and none to another 95. as flowing streams common 82. but as the profit his that ownes the Banks ibid. changing their course whether they change the Bounds of the Territory page 94 A River in what sense said to be always the same page 141 c. Rome once the common City 525. regardless of Captives or Prisoners and why page 488 The Romans severe in their Victories 503. they anciently abstained from fraud in their Wars page 444 c. The Roman Empire in whom now 143. founded in the People of Rome page 144 The Romans claimed that to themselves which their Enemies took from others page 471 All the Roman Tribes disfranchized for ingratitude page 39 Roman Dictators absolute though temporary page 43 The Romans chuse their Emperour when residing at Constantinople page 144 The Roman Empire not universal though sometimes so called page 407 The Romans Right over their Children 104. their custom concerning Lands taken in War 472. concerning the spoil 474 475. Captives redeemed 491. those that return by Postliminy ibid. concerning things taken 518 519 concerning their Captive Kings page 503 Rules guiding
ibid. common worse than Hangmen ibid. most backward to fight most forward to plunder 476. bound by Oath not to embezel the spoil 478. how they march inoffensively in a Country at peace 531. their Swords sealed in their Scabbards ibid. Souldiers straggling and plundering to be assaulted as Thieves page 374 Specification page 88 139 Speech proper to man Pref. iv Spies to send allowed by the Law of Nations 463. yea and to kill them being discovered ibid. Spoil taken from an Enemy whose 471. disposed of by the General 474. sold by the Questor and the Money brought into the Treasury without diminution 474 475. sometimes divided amongst the Souldiers 475. sometimes parted by Plunder 476. whereof the General might take what he pleased 475. sometimes to them that had contributed extraordinarily to the maintenance of the War 477. sometimes between the Souldiers and the State 478 479. sometimes to the maimed and to Widows and Orphans 479. sometimes imparted to our Associates in War 478. and to Reformadoes 479. may by an antecedent Law be decreed to publick uses 478. sometimes embezeled and the Commonwealth robbed ibid. taken by publick Acts the Commonwealths but by private theirs that take them ibid. of a Town if stormed the Souldiers if surrendred the Commanders page 479 Sponsions what 187. how far a General bound if the King refuse 188. at Caudis and Numantia obliged the Army not the People of Rome ibid. made by Generals Leagues by Kings page 179 Sponsors in War how far bound 180. their Estates may be sold their Persons enslaved but their Prince not obliged page 188 So Steal away the heart what it means page 441 Stipulation is the sign of a deliberate mind page 152 The Stock of a Slave may be taken from him in what cases 522. how far his Lords and how far his page 521 The Stoicks dispute much about words 376 377. they account it wisdom to know when and where to lye page 440 To Strangers to deny marriage unlawful 86. their Goods not subject to the supereminent power of Kings 178. they must observe the Laws and Customs of those they live with 81. to rob them anciently an honourable Trade 182. how they should judge of things taken in War 480. how a Right may arise by the Civil Law 141 their Goods may be detained for our or our Subjects Debts page 448 Subjection mutual between King and People refuted 41. publick what 117. sometimes requires protection page 422 Subjects sometimes called Servants 42. when they may safely engage in a just War 43. their Goods may be seized for the Debts of their society 448. how their Right may lawfully be taken from them 178. but not without just cause 179. may justly make War 427. what they may do if the cause be unjust ibid. or if they doubt not to execute the wicked commands of their Prince 428. not punishable for their Princes sin properly 411. of an Enemy may every where be presented unless protected by another Prince page 458 A Subject not to be sollicited to kill his Prince nor a Souldier his General 462. bound by the sentence of a Judge but so are not Strangers 448. being invaded the Peace is broke 549. not if Pirates ibid. fight under an Enemy whether it breaks the peace ibid. whether they may be compelled to be Hostages 555. and how ibid. of another Prince whether they may be defended page 425 Subjects not to resist the supreme Power proved by the nature of humane Society and Gospel 54 55. their liberty liable to the fact of their Prince 447. as to them a War may be on both sides just 429 430. taken in an unjust War to be delivered to their Prince 529. may make War against their Magistrates being authorized by the Supreme Power page 53 Subjection by way of punishment 117. Civil 485. Despotical ibid. mixt 486. perfect and imperfect page 116 117 Success good of bad designs no encouragement Pref. xii Succession is the continuation of an old Title in the same Family 42. makes men and Kingdoms Immortal 117. Males preferred before Females and the Eldest before the Youngest 128. to Kingdoms not to last beyond the time of the first King ibid. the Laws are divers concerning it 126. to an Intestate 122. what if childless 127. to an Estate newly gained 126. in Kingdoms Patrimonial how guided 127. Representative what 124. not known to the Germans till lately 126. Lineal Agnatical 130. Cognatical 129. that always respects the proximity to the first King 130. in Kingdoms indivisible to the Eldest 127. wherein the elder Brothers Son is preferred before the younger Brother 132. the Sisters Son before the Kings own Son 130. who shall be Judge of it if in doubt 131. of the Nephew before the Vncle is but of late page 132. Succession to Kingdoms the same as to other Estates when that Kingdom was first established 129. wherein the Antenate is preferred before the Postnate if the Kingdom be indivisible 131. why descendent rather than ascendent page 123 124 The Successor bound by the Contracts of a King 178. and how far page 179 Suffer a man may by occasion of anothers sin and yet not for it page 400 401 Suffrages how to be reckoned where divers Societies claim by unequal shares page 114 Superiours how they may lye to their Subjects 443. what they may do about the Oaths of their Inferiours 173 174. may compel their Inferiours not only to that which is justly due by Justice but by any other Vertue page 423 Suppliants liable to the licence of War 461. their Right to whom due 396 397. to be protected until the equity of their Cause be known 399. to be spared 508. unless guilty of some crimes deserving death ibid. Supplies sent to an Enemy by Neuters page 435 See Relief Supreme Power what and in whom 37. not in the People 37 38. it may be divided into Parts subjective and potential 46. not lessened by consenting that their acts shall be confirmed by the Authority of the Senate ibid. A Surety suffers not for the Debt but for his Engagement 400 401. not to be troubled unless the Principal be insolvent page 518 To Surrender unless succours come how to be understood page 531 Swallows feed their Young by turns page 123 T. TAlio not to extend beyond the person page 508 See Retaliation Talio bought off by the Jews page 371 Taxes that maintained the War restored by Fabritius page 477 The Temple at Jerusalem entred into by Pompey and burnt by Titus 466 467. its religious sanctity page 466 The Temples of the Gentiles burnt by the Jews ibid. Temples in War to be spared 514. to violate them Sacriledge page 515 Temptation vehement excuseth in part page 378 Terminus would have no bloud shed in his Sacrifices page 526 Territory whence 470. with what is fixt therein being taken in War is the Kings page 472 Terrour alone gives no internal Right to kill page 508 Testament wanting some formality what effect it
may have 482 483. to make is due by the Law of Nature 120. they may be made by Strangers by the Right of Nature ibid. By Testaments Kingdoms Patrimonial may be bequeathed but others not but by the Peoples consent page 43 44 To hinder a man from making his Testament obligeth to satisfaction page 201 Thebaean Legion page 62 93 428 Theseus the Scourge of Wickedness page 384 Theft prohibited by the Law of Nature 5. in extreme necessity lawful with some Conditions 81 82. nocturnal and diurnal the different punishments and why 74 75. against it severe Laws sometimes mitigated through Charity page 75 76 It is Theft to require more or give less in measure weight or number than was contracted for page 160 Theft not punishable by death by the Mosaical Law 76. nor by the Civil Law is approved though tolerated ibid. A Thief nocturnal may be killed in what Case 32 75. to kill whether the Civil Laws do only tolerate or justifie page 76 Thieves live not without Laws Pref. ix and Pirates have no Right of Embassages page 206 No Theft to spend somewhat of anothers to procure him a greater profit page 442 Things thus standing how and when understood 151. stolen lose not their property 97. that have no Owner the Germans give their Prince 135. given as lost cease to be ours 98. taken from an Enemy are theirs that take them though first taken from friends 470 471. taken in a just War how far ours by the Law of Nature 468. moving and moveable taken by private acts in a just War are lawful prize 472 473. useless in War may be spared 514. sacred and religious received by Postliminy 492. not the Enemies not gained by War 470 c. to defend justifies interfection naturally 74. how far lawful by the Gospel 75. twice sold whose Right is best page 161 Things to restore taken for any satisfaction as things to take away understood for any injury 456. lose not their Dominion till within the Enemies Garrisons 492. of Enemies to spoil how far lawful page 411 Time out of mind what 99. long out of possession of what force to prove dereliction page 98 Time and place of Battel alway proclaimed page 445 Titles none to be set on foot after four ages 99 100. to Empires should be fixt 99. originally naught cannot by any Postact be made good how understood page 100 101 Tolls for importation of Goods in what cases lawful 84 85. for passing Rivers and Bridges ibid. by Sea may be lawfully taken page 93 To Traffick a Right common to all 86 it unites Countries remote ibid. to hinder it with such Nations unjust page 84 In Traffick by Companies how the gain is divided page 164 Traytors have no Right of Embassies 206. against such and publick Enemies every man is a Souldier 65 374. to kill not punishable by the Law of Nature page 462 463 Of Treason against our Country the danger not past a Son may accuse his own Father page 209 To Treason the next degree is to harbour Traitors page 396 Travellers may for a while reside in any place page 85 Treasures found whose it is 136. the publick not toucht by Mark Antony without the consent of the Senate page 59 Treachery against Robbers and Pyrates when and why not punishable 463. in a solemn War lawful unless by Poyson or private Assasinatinn page 462 Tree of Life what it signified and of knowledge of good and evil page 79 Tribunals wanting the Law of Nature takes place page 122 Tribunes how made inviolable page 539 Tributes and Taxes due to Kings 3. to maintain Souldiers page 20 Tributary Associates page 57 Trifles not worth contending for page 21 22 23 Truce what a Time of Peace or War 557. when it begins to oblige and when it ends 558 559 broken on one side or ending needs no indiction of War 558 560. continuing no place to be surprized nor received that would revolt 559. what may â—awfully be done within that time 559 560. it may be made by inferiour Commanders 565. being ended whether they that were forceably detained during it have a Right to return page 559 Truths some easily assented unto others not but by three or four consequences page 385 Truth the same spoken or sworn page 175 Truth only to be spoken in Markets page 441 Tyrants worse than Hangmen 426. their scourge Hercules 384 with them Faith to be kept if given as to such page 537 538 V. VAlentinian's answer to his Army page 40 Valor cannot prevail against Nature nor dwell with Famine page 119 The Valerian Law in Rome distinguisht from Solons in Athens page 65 The Value of things from whence page 161 The Vanquished to be treated gently 527. which may be done either 1. by mixing them with the Conquerours 525. 2. by taking nothing from them but what disturbs Peace 524. 3. by leaving them their own Empire 525. excepting some strong Garrisons 526. 4. permitting their own Laws Magistrates Religion with caution for the true Religion 527. 5. by imposing some tribute on them 526. or some part of their Government page 525 Variety of manners occasioned by the various mixture of the Elements page 375 Venome to use unlawful in War page 461 462. See Poyson Veracity a Guide to all Vertues page 444 Vertues some require moderation of affection others not Pref. xvii what the Law enjoins the Gospel requires in a larger measure page 10 Vices what not to be punished 374. of things contracted for to be made known and why page 159 Victor who 552. his duty towards them that yield page 554 Victory disdained unless got by Manhood 445 sometimes the gift of fortune and not always the reward of Valour 504. being assured to waste things is madness 513. gained by fraud more honourable than that gained by force page 437 438 Virgins Milesian page 218 Virgins not to chuse themselves Husbands page 107 Visible what is not hath no certain Right page 100 That Universals have a power to oblige singulars 113. their Debts how far they bind their Members page 545 Unborn the Right defended by Law lost by prescription page 187 Uninhabited places are the First Occupants page 85 Unjust that is which is repugnant to humane Society page 2 Unjustly what is denyed may justly by War be taken page 86 Unjust if the War be what ever is done in it is internally unjust page 495 Unjust Wars are no better than great Robberies page 70 To do Unjust things and to do Unjustly how distinguisht page 428 429 Unlawful things none to be urged unto page 446 Untruth whereby a By-stander is deceived no Lye page 441 Unwillingly what is done deserves pardon page 500 Votes in a society where divers claim unequal shares how to be reckoned page 114 Usurpation what 97. of no force between Kings of divers Nations ibid. Use common its Authority in expounding Laws page 25 The Use of things Natural page 78 79 The Use of a thing consisting in abuse
presently make Laws to legitimate their errors and by those very Laws they judge the Innocent who are at length Crowned with Martyrdom Ep. 166. And in another place Tyrants are so to be endured by their Subjects and hard Masters by their Servants that both their temporal lives if possible may be preserved and yet their eternal safety carefully provided for Which he illustrates by the examples of the Primitive Christians Who though they then sojourned upon earth as Pilgrims and had infinite numbers of Nations to assist them yet chose rather patiently to suffer all manner of torments than forcibly to resist their Persecutors Neither would they fight â—o preserve their temporal lives but chose rather not to fight that so they might ensure unto themselves an eternal For they endured Bonds Stripes Imprisonment the Rack the Fire the Cross they were flea'd alive killed and quartered and yet they multiplied they esteemed this life not worth the fighting for so that with the loss of it they might purchase what so eagerly they panted after a better Of the same opinion was Cyril as may appear by many notable sayings of his upon that place of St. John where he treats of Peter's Sword The Thebean Legion The Thebean Legion we read consisted of six thousand six hundred sixty six Soldiers and all Christians who when the Emperor Maximianus would have compelled the whole Army to sacrifice to Idols first removed their Station to Agaunus and when upon fresh orders sent after them they refused to come Maximianus commanded his Officers to put every tenth man to death which was easily done no man offering to resist At which time Mauritius who had the chief command in that Legion and from whom the Town Agaunus in Switzerland was afterwards called St. Mauritz as Eucherius Bishop of Lyons records thus bespake his Fellow Soldiers How fearful was I lest any of you under the pretence of defending your selves as was easie for men armed as ye are to have done should have attempted by force to have rescued from death those blessed Martyrs Which had you done I was sufficiently instructed by Christs own example to have forbidden it who expresly remanded that Sword into its sheath that was but drawn in his own defence thereby teaching us that our Christian Faith is much more prevalent than all other Arms. This Tragick Act being past the Emperor commanding the same thing to the Survivors as he had done before to the whole Legion they unanimously returned this answer Tui quidam Caesar Milites sumus c. We are thy Soldiers O Caesar we took Arms for the defence of the Roman Empire we never yet deserted the War nor betrayed the trust reposed in us we were never yet branded with fear or cowardise but have always observed thy commands until being otherwise instructed by our Christian Laws we refuse to worship the Devil or to approach those Altars that are always polluted with blood We find by thy Commands that thou resolvest either to draw us into Idolatry or to affright us by putting every tenth man of us to death Make no farther search after those that are willing to lye concealed but know that we are all of us Christians all our Bodies thou hast indeed under thy power but our Souls are subject only to Christ our Redeemer Then Exuperius being the Standard-bearer to that Legion thus bespake them Hitherto Fellow Soldiers I have carried the Standard before you in this secular War but it is not unto these Arms that I now invite you it is not unto these Wars that I am now to excite your valour for now we are to practise another kind of warfare for with these weapons ye can never inforce your way into the Kingdom of Heaven And by and by he sends this message to the Emperor Against thee O Caesar Desparation it self which usually makes even Cowards valiant cannot prevail with us to take Arms. Behold we have our weapons fixt yet will we not resist because we chuse rather to be killed by thee than to overcome thee and to dye innocents than to live Rebels to either God or thee And a little after he adds Tela projicimus c. We abandon our Arms O Emperor and will meet thy Messengers of Death with naked breasts yet with hearts strongly munited with Christian Faith And presently after followed that General Massacre of the Thebean Band whereof Eutherius gives this Narrative It was neither their Innocence nor their Numbers that could exempt them from death whereas in other more dangerous tumults a multitude though offending are rarely punished The same story in the old Martyrology we find thus recorded They were every where wounded with Swords yet they cryed not out but disdaining the use of their Arms they exposed their Breasts naked to their persecutors It was neither their numbers nor their experience in War that could perswade them to assert the Equity of their cause by their Swords but placing his example always before them who was led to the slaughter dumb and liâ—e a Lamb to be Sacrificed opened not his mouth they also in imitation of him like the Innocent Flock of Christ suffered themselves to be worried and torn in pieces by an herd of Persecuting Wolves Thus also do the Jews of Alexandria testifie their Innocency before Haccus We are as then seest unarmed and yet we are accused unto thee as publick enemies to the State These hands which nature hath given us for our defence we have caused to be pinnacled behind us where they are of little use and our breasts we expose naked to every man that hath a mind to kill us And when the Emperour Valens cruelly Persecuted those Christians which according to the Holy Scriptures and the Traditions of the Ancient Fathers profest Christ to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Co essential with the Father though there were every where great multitudes of them yet did they never attempt by Arms to secure themselves Surely 1 Pet. 2.21 wheresoever patience in times of persecution is commended unto us there we find Christs own example held out unto us as we read it was to the Thebean Legion for our Imitation Mat. 10.39 As therefore his Patience so ours should have no bounds nor limits but death it self Luk. 12.33 And he that thus loseth his life is truly said by Christ himself to find it Thus having sufficiently proved That he that is invested with the Supreme Power ought not to be resisted Now I must admonish our Reader of some things wherein he may mistake by judging that those men do dash their Feet against this stone who indeed do not VIII That a free people may make War against their Prince In the first place therefore Those Princes that are under the body of a people whether they originally retained such a power or by some after contract or agreement made with them as in Lacedaemon if they do violate the Laws or wrong the
not fit for common examples and our own honour's sake to admit of so great a wickedness For as Valerius Maximus well observes Armis Bella Lib. 3. c. 8. Lib. 5. c. 5. Annal 3. non Venenis geri debent Wars should be waged by Arms and not by Poyson Insomuch that when the Prince of the Catti made offer to poyson Arminius Tiberius rejected it therein equalling himself in honour to the old Roman Emperours They therefore that hold it lawful to destroy an Enemy by poyson as Baldus by the authority of Vegetius did do regard the mere Law of Nature but overlook that Law which is established by the voluntary consent of Nations XVI As also by impoysoning Waters or Weapons Somewhat different from this manner of poysoning because it hath something of force in it is the anointing the Heads of Spears with poyson thereby to enforce death upon a double account which as Ovid records was much in use among the Getae The like testimony doth Pliny give of the Scythians For they anointed their Arrows saith he with poison compounded of the putrified Gore of Vipers and humane bloud immedicabile id scelus How this waâ— prepared we may learn our of Rhodoginus c. 10. 23. See Lyps Ann. upon Plin. l. 11. c. 53. a mischief incurable because it made every slight hurt mortal Lucan testifies the same of the Parthians so doth Silius of some of the Africans and Claudian particularly of the Ethiopians It was observed that in India Alexander's Soldiers being wounded by these impoysoned Arrows dyed immediately Yet was this also contrary to the Law of Nations though not of all Salisburiensis lib. 8. c. 20. yet of these of Europe and of such others as are civilized like them amongst whom the use of poyson was never by any Law allowed although among Pagans and Infidels it hath sometimes been usurped Therefore in Silius's account this was but ferrum infamare veneno the shame and reproach of valour And therefore Ilus Mermerides in Homer denied poyson to Vlysses's Spears for fear of a revenge from the Gods Immortal So also the impoysoning of Springs Florus reckons to be unlawful being repugnant not only to the Constitutions of men but to the Laws of God Where we may note as we have already elsewhere That prophane Authours do usually ascribe the Laws of Nations unto the Gods Nor will it seem strange that there should be such a tacite agreement amongst Nations for the lessening of the dangers that attend the Wars when we find it anciently covenanted between the Chalcidenses and the Eretrienses Strab. l. 10. That during the War between them it should not be lawful to cast or to dart any thing XVII But not otherwise to corrupt Waters But it is otherwise where waters are without poyson so corrupted that they cannot be drunk as by throwing Carrion into them and dead Bodies or asbestus which Belisarius made use of in the Siege of Auximum or Lime which the Turks did at Dibibras or such like Proc. Goth. l. 2. De Piscatu l. 4. For this was approved of by Solon the Amphictyones and others against the Barbarians and as Oppianus records was usually done in his Age it being no more than if the Current of a River or the Veins of Water that feed a Well should be cut off or turned some other way which by the Law of Nature and the general consent of Nations are held lawful XVIII Whether it be against the Law of Nations to use Murtherers But whether the Law of Nations do justifie the killing of an Enemy privately that is by sending one purposely to kill him in his own Quarters is often questioned For the resolving of which doubt we must distinguish of the persons sent for in case he be such a one as hath any ways given his faith either expresly or tacitely unto him whose life he attempts as if he be a Subject that shall be hired to kill his Sovereign a Vassal his Lord or a Souldier his General or if he be received by him in protection as a Suppliant a Stranger or a Renegado yea if the person sent owe any faith to him whom he is sent to kill then the Law of Nations doth not only condemn the person that is the instrument for his treachery and perfidiousness but those also that make use of him For although in other matters he that makes use of wicked instruments though against an enemy may be found guilty before God yet is he not so before man For he is not thereby said to violate the Law of Nations because in this Case Mores Leges perduxerunt in potestatem suam Custom hath prevailed above the Laws Et decipere pro moribus temporum prudentia est And to deceive as Pliny saith if it accord with the manners and customs of the Age we live in Lib. 8. Epist ad Rufinum is not a crime but a Vertue no knavery but commendable policy Yet doth not this custom extend it self so far as to the killing of an enemy For he that shall make use of another mans treachery in such a case doth not only sin against the Law of Nature but of Nations Curtius l. 4. This is plain by what Alexander wrote to Darius Impia Bella suscipitis cum habeatis Arma licitamini hostium capita It is an impious War that ye wage against me for having Weapons to fight ye chuse rather to purchase with money the lives of your enemies And presently after he complains Lib. 14. That they did not observe the Law of Armes And in another place I ought to persecute him even unto death not as an open Enemy but as a secret Murtherer Liv. l. 42. Hither we may refer that of Livy concerning Perseus of whom he complains That he waged not a just and open war with a mind becoming a Prince but that he used all manner of base and clandestine ways to destroy his Enemies like a Thief or a Poysoner All which Marcius Philipus Liv. l. 44. how odious they are to the Gods themselves would at length be seen by the event of his Fortunes Agreeable hereunto is that of Valerius Maximus concerning the murder of Viriatus Lib. 9. c. 7. which gave occasion to a double accusation of perfidiousness the one by his friends by whose hands he was killed the other in Quintus Servitius Caepio the Consul who by encouraging them to do it by his promise of impunity became himself the Authour of the fact and did therefore justly lose the glory of the Victory For Victoriam non meruit sed emit He deserves not the honour of a Triumph that buys the Victory Wherefore when the Murtherers demanded the reward promised them by the Consul Caepio it was answered That it was never thought a meritorious act by the Romans for Souldiers to kill their General as Eutropius testifies Now the reason why the Law of Nations Eutropius that allows us to