oath 223 Servitude 414 Sepulchers 557 Ships of enemies 564 Single combate 194 Simplicity 199. 200 Simulation 486 Solemn war 76 Soldier resisting 137 Society 151 Solomons proverbs 252 Soldiers of fortune 461 Spoil 553. 559 Spies 448 Speech 492 Strangers 537 States 90 Stronger 447 Sute 39 Subjection 47. 86. 143. 156 Subjects profit 96 Subjects War 135 Succession 101 Superiors 136. 240 Suppliants 388. 596 Supremacy 137 Suffrance 382 Surety 398 Succour 458 Supplie 480 Sword 26. 72 Swearing 234 T TEmperament 581. 604 Tertullian 51. 157 Temporary right 102 Terrour 599 Theseus 294 Thebaean Legion 65. 158 Thief 68. 189 Tithe 558 Tribute 35. 132 Trajans saying 149 Traitors 166. 304. 508 Truth 490 Tutor 40. 96 Turks 256 Tyranny 95 Tyrant 237 V VAlour 59. 505 Valentian's answer 94 Vengeance 47 Unequal league 123 Voluntary Law 6. 7 Usufructuary 102 Usurper 169 W WAr 1 War private 66 War publick 76 War for punishment 350 War for religion 270 War without cause 409 War doubtful 426 War declined 440. 448 War for others 451. 457 War solemn 76. 518 Waste 553. 604 War unjust 575 Words of Art 261 Women 316. 538. 551. 589 X XEnophon's Cyrus 41 Y. YEa yea 242 Z ZEal 327 THE END Books printed for William Lee and are to be sold at his shop at the Turks-Head in Fleetstreet together with the Prices of some of them ANnotations upon all the New Testament by Edward Leigh Esquire Master of Arts of Magdalen-Hall in Oxford 1650. A Systeme or Body of Divinity in ten Books wherein the Fundamental and main grounds of Religion are opened by Edward Leigh Esquire Master of Arts in Magdalen-Hall in Oxford in Folio 1654. about 240. Sheets The Saints Encouragement in Evil times in 12. 1651. written by the said Author Edward Leigh An Exposition of the Prophecy of Haggee in fifteen Sermons by that famous Divine John Reynolds D. D. in 4. 1649. An exposition of the Psalms of degrees The Young mans Tutor both writ by T. Stint in 8. Heresiography or a Description of all the Heresies Sectaries of these later times of Ranters and Quakers by Eph. Pagit 4. with new Additions 1654. Contemplations Sighs and groans of a Christian published by W. Stiles Esquire of the Inner Temple 12. The Saints Comfort in evill times 12. Gods revenge against Murther in thirty Tragical Histories by J. Reynolds in Fol. Sylva Sylvarum or a Natural History in ten Centuries Whereunto is newly added The History of Life and death or the Prolongation of Life both written by the Right Honorable Francis Lord Verulam in Fol. 1651. The Magnetique cure of Wounds Nativity of Tartar in Wine Image of God in Man Aâ—…o another Treatise of the Errors of Physicians Concerning Defluxions both published in English by Dr. Charleton Physician to the late King 4. 1650. The darkness of Atheism dispelled by the light of Nature written by the said Author in 4. 1653. A Discourse concerning the King of Spains Surprizing of the Valtoline Translated by the Renowned Sir Thomas Roe many times Embassador in Forein parts 4. The Roman Foot and Denaries from whence as from two principles the measure and weights may be deduced by John Greaves of Oxford 8. 1647. A Treatise of the Court Written in French by that great Counsellour De Refuges many times Embassador for the two last French Kings Englished by John Reynolds 8. Amâ—…nta A Pastoral Translated out of Tarquata Tasso 4. The Hebrew Commonwealth Translated out of Petrus Cuneus in 12. 1653. both Translated by Clem. Barksdal Hugo Grotius his two Treatises Of God and his Providence and of Christ and his Miracles together with the said Authors judgment of sundry points controverted in 12. 1653. Certamen Religiosum or a Conference between the late King of England and the late Lord Marquess of Worcester concerning Religion 4. 1652. The Battel of Agâ—…ncourt fought by Henry the fift the miseries of Queen Margaret with other Poems by Mic. Drayton Esquire 8. The Odes of Horace Selected and translated by Sir Thomas Hawkins in 12. The Spanish Gallant instructing men in their Carriage to be beloved of the People Youths Behaviour or Decency in conversation amongst men with new Additions of a Discourse of Powdering of Hair of black Patches and naked Brests 8. 1651. The Tillage of Light A Treatise of The Philosophers stone 8. The Right of Peace and War in three Books written in Latin by the Illustrious Hugo Grotius together with the life of the said Author in English 8. large 1654. A Sermon of the Nature of Faith by Barten Holy-day Doctor of Divinity 1654. The Innocent Lady or the Illustrious Innocent written Originally in French by the learned Father de Ceriziers of the Company of Jesus rendred into English by Sir William Lower Knight 1654. A Disputation at Winchcomb in Glocester-shire wherein is much satisfaction given in many fundamental points of Religion in the presence of many Eminent Persons 1654. A brief discourse of changing Ministers Tithes into Stipends or into another thing 1654. Books printed for W. Lee and some others and are to be sold at the Turks Head in Fleetstreet together with the prices of the said Books THe Christians Warfare againg the Devil World Flesh by John Downam Fol. 16 s. Second Epistle of Saint Peter by Tho. Adams Fol. 1633. 20 s. A sixfold Commentary upon Genesis wherein six severall Translations are compared by Andrew Willet in Fol. 16 s. The Theater of Plants or a large Herbal by John Perkinson Apothecary 2lb Orlando Furioso Englished by Sir John Harrington with the Translators additions of his Epigrams in Fol. 8 s. Mare Clausum by John Selden Esquire of the best Impression in Fol. 6 s. Books printed for William Lee M. Walbanck D. Pakeman and G. Bedell REports or new Cases of Law by John March of Grayes-Inne Barrester 4. 1648. 2 s. 8 d. The Attorneys Academy being the manner of Proceeding in all the Courts of Records at Westminster and other Courts of Law or Equity 4. 1647. 3 s. The learned Argument upon the three learned Readings 1. By the Lord Dyer 2. By Sir J. Brograve 3. By Th. Risden Esquire Writ of Habeas Corpus in Court of Upper Bench with the opinion of the Court thereupon The Touchstone of Common assurances by W. Shepheard Esq of the midde-Temple 4. 1651. 5 s. 6d The book of Oaths and the several Forms thereof both Antient and Modern in 8. 1649. Fleta an antient Manuscript of the Laws of England published in print by John Selden Esq and is to be sold by W. Lee M. Walbanck and D. Pakeman 4. 1647. 8 s. 6 d. Books printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their Shops in Fleet-street BIblia Sacra sive Testamentum vetus ab Jun. Tremelio Fâ—…a Junio ex Hebraeo Latinè redditum Testamentum Novum à Theod. Beza è Graeco in Latinum versum Argumentis Capitum addit is versibusque singulis distinctis seorsum expressis cum
See you not Learning in his Lookes See it more Liuely in his Bookes Tho. Cross Sculpsit THE ILLUSTRIOUS HVGO GROTIUS OF THE LAW OF WARRE AND PEACE WITH ANNOTATIONS III. PARTS AND Memorials of the Author's Life and Death 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 M. Antonin Imp. l. 9. LONDON Printed by T. Warren for William Lee And are to be sold at his shop at the signe of the Turks-head in Fleet-street M. DC L V. TO THE ENGLISH GENTRY WITH ALL DUE HONOUR TO THEIR WISEDOM AND VALOUR THIS WORK IS HUMBLY DEDICATED BY THEIR SERVANT THE TRANSLATOR TO THE READER THat This Book may obtein General Acceptance I have somewhat to say to every sort of Readers The Divine shall here behold the Evangelical Law shining above all other in the perfect Glory of Charity and Meekness The Gentlemen of our Noble Innes of Court shal here read the most Common Law that of Nature and Nations The Civilian may here observe some footsteps of the Goodly Body of his Law To the Statesman and the Soldier 't will be enough to see the Title of War and Peace The Philosopher the Poet the Orator and Historian shall here meet with the choicest Flowers gathered out of their spatious Gardens by a most skilful hand the hand of Him that was excellent in all these kinds of good Learning the Incomparable HUGO GROTIUS This Great Name as well as the Usefulness of the Argument we hope will commend the Book to every Ingenuous Reader to whose candid Censure it is in all humility submitted by C. B. The Author's Dedication to the most Christian KING THis Book Most Eminent of Kings is bold to bear Your Royal Name in the Front in Considence not of It self not of the Author but of the Argument Because it is written for Justice Which Vertue is so properly Yours that by your own Merits and by the Suffrage of Mankind You have thence received a Title most worthy of so Great a King being known every where now no less by the Name of JUST than of LUDOVIC The Roman Commanders esteemed the Titles very specious which were deriv'd from Crete Numidia Afric Asia and other conquer'd Nations How much more Illustrious is Yours whereby you are declared both the Enemy every where and all ways the Conquerour of no people of no man but of that which is Unjust The Egyptian Kings thought it a great matter if One were called the Lover of his Father Another of his Mother a Third of his Brother How small parts are These of Your Name which comprehendeth not only those things but whatsoever can be imagined fair and honorable You are Just when by Imitation of Him you honour the Memory of your Father a King Great above all that can be said Just when you instruct your Brother every way but no way more than by your example Just when you grace your Sisters with Highest Matches Just when you revive the Laws almost buried and as much as you can oppose your self against the declining Age Just but withal Clement when you take away nothing from your subjects whom Ignorance of your goodness had transported beyond the limits of their Duty beside the licence to offend and offer no Violence to Souls of a different perswasion in matter of Religion Just and withall Merciful when by your Authority you relieve oppressed Nations afflicted Princes neither permit Fortune to be too insolent Which singular Beneficence of yours and as neer like to God as human Nature suffers compells me on my own behalf also to make this publick thankfull Acknowledgment For as the Heavenly Stars do not only communicate their Influence to the greater parts of the world but vouchsafe it to every living Creature So you being the most beneficent Star on earth not content to raise up Princes to ease people have been pleased to be a safeguard and a Comfort even to me ill used in my own Country Here is to be added to fill up the Orb of Justice after your publick Actions the Innocency and Purity of Your private life worthy to be admir'd not by Men alone but by the Angels too For how Few of the Inferiour sort yea of those that have secluded themselves from the Fellowship of the world keep themselves so untoucht by all faults as You being placed in such a Fortune which is surrounded with innumerable allurements to sin And how Admirable a Thing is This among Business in the Throng in the Court among so many Examples of Those that sin so many ways to attain unto that which solitude scarce yea often not at all affordeth others This is indeed to merit even in this life not only the name of JUST but of SAINT which was given by the consent of pious men to Charles the Great Ludovic your Ancestors after their Death that is to be not by a Gentilitious but by your own proper right Most Christian. Now as every part of Justice is Yours so is that which concerns the Matter of this Book about the Counsells of War and Peace yours peculiarly as you are a King and King of France This your Kingdom is great which stretcheth it self to both Seas through so many spaces of so happy Lands but it is a greater Kingdom than This that You do not covet other Kingdoms This is worthy of Your Piety worthy of that eminency not to Invade the Right of any Other by your Arms not to remove antient Bounds but to do the Business of Peace in the time of War neither to begin War but with this Desire to bring it to a speedy end And How Brave How Glorious is This How Joyful to Your conscience that when God shal call you up to His Kingdom which alone is better than yours you may confidently say This sword have I receiv'd from Thee for the safeguard of Justice This I render to Thee pure and unstained with the blood of any man rashly shed Thus it shall come to pass that the rules we now look for in books hereafter may be taken from Your actions as from a most perfect Exemplar It is a very great matter This Yet doth the world of Christians dare to exact something more at Your Hands Namely that the Flames of War being every where extinguished not only Empires but Churches may see their Peace returning to them by Your procurement and that Our Age may learn to submit to the Judgment of That Age which All Christians profess to have been truly sincerely Christian The minds of Good men weary of Discords are raised to this Hope by the Friendship newly made 'twixt you the King of Great Britain a most wise Prince exceedingly studious of that Holy Peace and confirmed by the most Auspicious Marriage of your Sister Difficult is the Business by reason of Partial Affections inflamed and exasperated more and more but Nothing is worthy of so excellent Kings but That which is Difficult but That which is Despaird of by all others The God of Peace the God
Lastly the Law of Christ hath taken away the Law of Moses only which was the partitioâ—… wall between the Gentiles and the Hâ—… brews Things by nature honest and by the consent of civil nations it is so far from taking away that it hath comprehended them all under the generâ—… precept of all honesty and virtue But the punishment of crimes and Arms to keep off injury are accounted laudable in their Nature and are referred to the virtue of justice and beneficence And here on the by we must note their error who draw the Israelites right to War from this alone that God had granted to them the Canaanites Land For this is not the only cause though it be 〈◊〉 just one Before those times men of piety conducted by their reason waged Wars and the Israelites themselves afterward upon other grounds as David for the violation of his Embassadors Besides what any one possesseth by humane right is no less his own than if God had made an immediate grant thereof which right is not taken away but confirmed by the Gospel XXI Objections answered The first LEt us now also see by what Arguments the opposite opinion underprops it self that the pious Reader may more easily judge which of the two is more firm and weighty The first is usually brought out of Esay's prophecy who saith it shall come to pass that the Nations shall beat their swords into plow-shares and their spears into pruning-hooks Nation shall not lift up sword against Nation neither shall they learn War any more But this prophecy either is to be understood as many other conditionally Such shall be the state of things if all people undertake and fulfil the Law of Christ to which purpose God will suffer nothing to be wanting on his part Sure enough it is if all be Christians and live Christianly there will be no Wars Or it is to be understood simply and purely and thus experience tells us this prophecy is not yet fulfill'd but the impletion thereof as also of the general conversion of the Jews is yet to be waited for Which way soever you take it nothing can be inferred hence against the justice of Wars so long as there are who suffer not the lovers of peace to live at peace but offer violence and use force against them XXII The second Objection answered OUt of the fift of Matthew sundâ—… Arguments are deduced which we cannot rightly judge of unless 〈◊〉 remember what was said afore If Christ had purposed to take away all capital judgements and the right of Wars he would have done it in words most express and special by reason of the greatness and newness of the matter and the rather because no Jew could think otherwise but that the Laws of Moses pertaining to judgements and the Common-wealth ought to have their force upon the men of that Nation so long as their state endured This being premised let us weigh the places in their order The second muniment of the adverse party is from these words Ye have heard that it hath been said An eye for an eye and a tooth for a tooth But I say unto you that ye resist not the injurious person so the Gr. turns the original word Exod. 21 But whosoever shall smite thee on the right cheek turn to him the other also Hence do some infer that no injury is to be repelled or revenged neither privately nor publikely But this is not the meaning of the words for Christ speaks not here to Magistrates but to those that are injured nor doth he speak of every injury but of such as a blow on the cheek the following words restrain the generality of the precedent So likewise in the next immediate precept If any man will sue thee at the Law and take away thy coat let him have thy cloak also Not every sute before the judge or arbitrator is forbidden let Paul be the Interpreter who denies not all sutes but prohibites the Christians to contend in the Courts of Heathens and that after the Jews example whose common saying it was Whosoever brings the affairs of Israel before the stranger pollutes the name of God but the will of Christ is to exercise our patience that we should not go to Law about things which may easily be repaired as a Coat or if it so happen the cloak also but that although our cause be good wee should omit the prosecution of our right Apollonius Tyaneus said It was not the part of a Philosopher to contend about a little money The Praetor saith Ulpian approoves his doing who would content himself and sit down with the less of a thing rather than be troubled with often sutes about it For this mans disposition that cannot endure contention is in no wise to be dispraised What Ulpian here saith is approved by the best the same doth Christ command choosing the matter of his precepts from among the things that are most honest and mâ—… approved But you may not colleâ—… hence that it is unlawfull for a Parenâ—… or for a Tutor to defend that before 〈◊〉 Judge without which the Children without which the pupils cannot to maintained For the coat and cloak is one thing the Lively-hood another In Clement's Constitutions it is said of a Christian man if he hath a sute let him endeavour to end it though he bear some damage As in matters of morality so here we say these things do not consist in a point but have a certain latitude belonging to them So in that which follows And whosoever shall compell thee to go a mile go with him twain Our Lord said not a hundred mile a journey that would take a man off too far from his own occasions but one mile or if need be twain a walk not very irksom The sense therefore is in these things which import no great incommodity we must not stand upon our own right but yield even more than another would require that our patience and our benignity may be known unto all men It follows Give to him that asketh thee and from him that would borrow of thee turn not thou away If you carry it on infinitely and without measure nothing is more hard He that provideth not for those of his own house is worse than an infidel saith Paul Let us then follow the same Paul the best interpreter of his Master's Law who stirring up the Corinthians to exercise beneficence toward the poor of Jerusalem Not saith he that other men be eased and you burthened but by an equality that your abundince may be a supply for their want which sense is also in Xenophon's Cyrus What I shall see superfluous in my own estate will serve the necessities of my friends The like equity must we use for the interpretation of that precept now in hand The Hebrew Law as it did indulge a liberty of divorce to prevent the cruelty of Husbands toward
of a Family who 〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government shall not thereby cease to have so far as may be in a Family supreme right therein Nor is the Husband deprived of marital power because of some promise to the Wise. I confess by this means the Empire is in some sort streightned whether the obligation ly upon the exercise of the act only or also directly upon the faculty it self In the first way the act done against promise will be unjust because as we shew elsewhere a true promise gives hima right to whom 't is made and in the other way it will be null by want of faculty Nor yet doth it thence follow that he that makes the promise hath any superiour for in this case the act is rendred null not by superiour force but in Law Amongst the Persians the King was Supreme and absolute adored as the Image of God and as Justin saith he was not changed but by death A King was he that to the Peers of Persia spake thus I have called you together that I might not seem to use only my own Counsel but remember it is your duty rather to obey than perswade Yet he took an oath at his entrance as Xenophon and Diodorus Siculus have noted and it was not lawful for him to change certain Laws made after a particular form The same is related of the Ethiopian Kings by Diodorus Siculus And by his relation the Egyptian Kings who no doubt as well as other Kings of the East had Supreme power were bound to the observation of many things but if they had done the contrary could not be accused living dead their memory was accused and being condemned they wanted solemn burial as also the bodies of the Hebrew Kings who had reigned ill were not buried in the royal Sepulchers an excellent temperament whereby both the highest power was kept sacred and yet by fear of a future judgement Kings were kept from breaking their trust That the Kings also of Epirus were wont to swear they would reign according to the Laws we learn of Plutarch in the life of Pyrrhus But suppose it be added If the King breaks his trust he shall be depâ—…sed Yet will not the power hereby cease to be the highest but the mannâ—… of holding it weakned by this condition and the Empire will be as it were temporary It is said of the King of Sabaeans that he was absolute and of a most free power but that he might be stoned if he went out of his Palace In like manner an estate of Land that is held in trust is an estate as well as if it were possessed in full dominion but it is holden for a time or at the pleasure of another And such a Commissory Law or condition may be annexed not only in the bestowing of a Kingdom but in other contracts for some Leagues too with neighbours we see are entred with the like sanction LII The fourth Observation FOurthly it must be noted Although the highest power be one and undivided by it self consisting of the parts above set down supremacy being added Yet may it sometimes happen to be divided either by parts which they call potential or by parts subjective So when the Roman Empire was one it often came to pass that one Ruler had the East another the West or that three divided the world between them And so it may be that a people choosing a King may reserve some acts to themselves and may commit others to the King with full right Yet is not that done as we have shewed already whensoever the King is bound up with certain promises but then we must conceive it to be done if either a partition be made expresly of which we have spoken afore or if a people yet free lay upon their future Kings a charge by way of an abiding precept or if a clause be added to signifie that the King may be compeld or punisht For a precept is from a superiour superiour at least in that particular which is given in precept and to compell is not alwaies the property of a superiour for also naturally every one hath a right to compel his debtor but is repugnant to the nature of an inferiour Parity therefore at least follows from coaction and so a division of the supremacy Against such a State as being double headed many allege many incommodities but as we have also said above in civil affairs there is nothing wholy without incommodities and Right is to be measured not by that which seems best to you or me but by the will of him whence right ariseth An antient example is brought by Plaâ—… in his third de legibus For when the House of Hercules had built Argâ—… Messena and Lacedemon the King were bound to keep their Governmenâ—… within the bound of prescribed Laws anâ—… whilst they did so the people were obliged to leave the Kingdom to them and their posterity and suffer none to take it from them And to this not only King and their own people have mutually 〈◊〉 venanted but Kings with other Kings and one people with another people and Kings with neighbourig States and States with neighbouring Kings have entred into Covenant and promis'd aid to 〈◊〉 other respectively LIII A further explication of the last note about division of power and mixture YEt are they much deceived who think the power of Kings divided when they will have some of their acts not accounted firm unless they be approved by the Senate or some such Assembly For the acts voided for want of such approbation must be understood to be cancelled by the Kings own command who ordained this by way of caution lest any thing fallaciously gained from him should pass under the notion of his true and deliberate will King Antiochus the third sent such a â—…escript to the Magistrates that they â—…hould not obey him in case he should command any thing against Law and Constantin published the like that Orphans and Widows be not constreined to come to the Emperours Court for Justice no not if the Emperours rescript â—…e shewed Wherefore this case is like to that of testaments which have a clause that no later testament shall be of force for this clause also makes it be presumed that the later testament proceeds not from the true will of the maker Nevertheless as this clause so that other by the Kings express command and special signification of his later will may be annulled Again I do not here use the authority of Polybius neither who refers the Roman Common-wealth to a mixt kind of Government which at that time if we respect not the doings themselves but the right of doing was meerly popular For both the authority of the Senate which he refers to an Optimacy and of the Consuls whom he will have to be like Kings was
which foâ—…bids a Theif by day to be slain this exception added unless he defend himself with a weapon Therefore against a Theif by night it is presumed that with a weapon he defended himself And by a weapon is understood a sword a club a stone as Caius noteth upon this very Law Bâ—…t Ulpian hath declared that what is said of the Theif by night If one kil him he shal go unpunished is to be conceived to have place if he could not spare his life without peril of his own to wit in saving of his goods There is then as I have said a presumption on his side who hath slain a theif by night but if haply witnesses were present by whom it is evident the slayer of the theif was not brought into danger of his life then will that presumption cease and so the slayer will be guilty of Homicide Add that as well by day as by night the Law of the XII Tables requir'd that he that found the theif should testify so much by an out-cry as we learn out of Caius to the end if it might be the officers or neighbours might run thither to bring help and to bear witness Now because such a concourse is more easily made by day than by night as Ulpian notes upon the forecited place of Demosthenes therefore is more easy credit given to him that affirms he was in danger in the night time In like manner the Hebrew Law allowes a maid credit concerning a rape in the field and not in the town because here she might and ought to have cryed out and called aid Moreover although in other respects there were no difference yet this is considerable that the things that happen in the night are more obscure and cannot be so well known what and how great they are and therefore are more terrible The Law therefore both Hebrew and Roman gave in precept to the people that which Charity perswades that they kill no man for this reason onely because he stealeth goods but in case he that desires to save them comes himself into danger Moses Maimonides hath noted that the killing of another is not permitted to any man on other terms than to preserve that which is irreparable as life and Chastity X. Whether and how far it is permitted by the Evangelicall Law ANd what shall we say now of the Evangelicall Law that the same is permitted by it which is permitted by the Law of Moses or that as in other things it is more perfect than the Law of Moses so here also it requireth of us more I doubt not but it requireth more For if Christ commandeth to lose a coat or cloak and Paul would have us suffer damage rather than go to law which is a contention without bloud how much more would he that even things of greater moment be lost rather than we should kill a man the image of God and of the same flesh and bloud with us Wherfore if our things may be saved so that there seem not to be any danger of making slaughter well otherwise we must suffer losse unless haply it be such a thing upon which our life and of our family depends and which cannot be recoverd in judgment haply because the Theif is unknown and there is some hope to carry the matter without slaughter And although almost all as well Lawyers as Divines do now teach that a man may be rightly slain by us in defense of our goods even beyond those bounds wherein the Law of Moses and the Roman permit as if a thief having taken the thing fly yet do not we doubt but that which we have set down was the judgment of the antient Christians nor did Austin doubt whose words are these How are they free from sin before God who for these things which are contemptible are polluted with human blood No wonder if in this matter as in many other Discipline became looser with the time and by degrees the Interpretation of the Evangelical Law began to be accommodated to the manners of the Age. Of old the form of the primitive Institution was wont to be retained among the Clergy at length to these also censure was remitted upon the same ground XI Whether the Civil Law permitting one to kill another in his own defense give a right or only impunity AQuestion is here propos'd by some Whether the Law at least the Civil as having right of life and death in what case it permitteth a thief to be killed by a private person doth also exempt the person from all fault I conceive that is not to be granted For first the Law hath not right of death over all the Citizens upon every transgression but upon a transgression so grievous that it deferrâ—… death And it is a very probable opinioâ—… of Scotus that 't is not just to condemn any one to death unless it be for those transgressions which were punished wiâ—… death by the Law given by Moses thâ—…s onely added or which are equal to those in a right estimation And indeed knowledge of divine will which alone quieti the mind seems not possible to be had elswhere in this business but out of that law which surely appointeth not pain of death for a thief Moreover also the Law neither ought nor is wont to give a right privately to kill even those that have deserved death except in crimes very hainous otherwise in vain were the Authority of Courts of judgment ordained Wherefore if at any time the law saith a thief may be killd without danger of punishment it is to be supposed to take away the penalty not to grant a right XII When a single combat may be lawfull IT appears by what we have said that two ways it may come to pass that a single combat may be undertaken by private persons without sin First if the Invader grant the other license to fight and and will kill him unless he will fight Secondly if a King or Magistrat oppose two that have both deserved death one against the other in which case it will be lawful for them to lay hold on some hope of life but he that appoints the Duel will seem to have not so well done his duty sith it were better if the punishment of one seem to be sufficient to choose by Lot the party that should dy XIII Of defense in publick War WHat hath been said by us hitherto concerning the right of defending ones self and his goods perteâ—…eth most to privat War yet so that it may be applyed to publick regard being had to the diversity For in private war the right is as it were momentaneous and ceaseth so soon as the matter admits of an access unto the Judge but publick because it ariseth not but where Courts of Justice either are not or not exercised hath a continued tract and is perpetually cherished by addition of new damages and injuries Farther in private war
Goodness and Power So that he is able to give unto those that obey him greatest Rewards and eternal being himself eternal and may be believed willing and much the more if he hath expresly promis'd it Which we Christians convinced by undoubted testimonies do believe This is now another fountain of Law beside that natural coming from the free will of God to which that we ought to be subject our own understanding doth irrefragably dictate to us Moreover that natural Law of which we have spoken whether it be the Social or that which is more largely so called though it proceedeth from principles internal to man yet it may deservedly be asscrib'd to God because it was his will that such principles should be in us in which sense Chrysippus and the Stoicks said The Original of Law came from no other Head but Jupiter Adde that God by Laws given hath made the said principles more conspicuous even to men of Weaker minds and those impetus and passions regarding our selves and others and drawing us several ways He hath forbid to wander regulating their vehemency and keeping them in compass And the sacred Historie besides that which consists in precepts doth not a little excite that social affection by shewing that all men are descended from the same first Parents so that in this sense may be rightly said what Florentinus said in another Nature hath made us all Kinsmen Whence it follows that 't is impiety for one man to be treacherous to another Among men Parents are as it were Gods to whom therefore not an infinite but a peculiar observance is due And further being it is a point of the Law of Nature to stand to Covenants for some way of binding themselves was necessary among men nor can any other natural way be imagined from this very fountain Civil Laws have flowed For they that had joyned themselves to any Assembly or subjected themselves to Man or Men had either expresly promis'd or by the nature of the business ought to be understood to have promis'd tacitly That they would follow what either the major part of the Assembly or Those to whom power was given had constituted Wherefore what Carneades and others say That Utility is even the Mother of Justice and Equity if we speak accurately is not true For the mother of Natural Law is humane nature it self which would carry us to a desire of mutual society though we wanted nothing but the mother of Civil Law is the very obligation by consent which having its vertue from the Natural Law Nature may be call'd the Grandmother of this Law also But to Natural Law Utility is added for the Author of Nature was pleased we should be weak singly and stand in need of many things usefull to our life that we might the more vigorously embrace Society To the Civil Law Utility gave occasion for that consociation or subjection aforesaid began to be ordained for some Utilities sake And they that prescribe Laws to others are wont or ought to respect some Utility therein But as the Laws of every Common wealth respect the interest and profit of the same so between Common-wealths either all or most some Laws may have arisen from Consent and it appears they have arisen which might respect the Interest not of several Societies but of the Whole And this is that which is call'd the Law of Nations as oft as that name is distinguisht from Natural Law Which kind of Law Carneades omitted distributing all Law into Natural Law and the Civil Law of single Nations when yet being to treat of that Law which is common to Nations one with another for he added a discourse of War and things got by War he ought by all means to have mentioned the same And it is another errour of Carneades to traduce Justice by the name of Folly For as by his own confession the Citizen is not a fool who follows the Civil Law in the Common-wealth though for his reverence unto it he must omit some things profitable to himself So neither is that people foolish that value not so much their own Interest as to neglect therefore the Common Law of Nations The reason is the same in both For as a Citizen who breaks the Civil Law for his present Commodity breaks that wherein his own and his posterities perpetual benefit is contain'd Even so a people violating the Laws of Nature and Nations destroy the muniments of their own Tranquillity for the future Again though no profit were expected out of the observation of Law yet were it a point of Wisdome not of Folly to be carried unto that to which we feel our selves directed and enclined by our nature Wherefore neither is that which one hath in Plato Laws were found out through fear of receiving injury and Men are forcibly drawn to advance justice universally true For that pertains onely to those Institutes and Laws which are invented for the more facile execution of Law as Many weak of themselves that they might not be opprest of the stronger conspir'd to institute and by united force to maintain Courts of Justice that all together might prevail against those they could not match single And in this sense may that Saying be well taken Law is that which pleaseth the Stronger conceiving Law to want its external end unless it have Force to back it as Solon did very great matters joyning Might and Right together as he said himself Yet doth not Law though destitute of Force want Effect altogether for Justice brings security to the Conscience Injustice torments and tearings such as Plato describes in the breasts of Tyrants Besides the consent of honest man approves of Justice condemns Injustice And which is the greatest of all this hath God for an Enemy that for a Friend who doth so reserve his judgements after this life that he often too represents the power of them even in this life as Histories do shew by many examples Now whereas Many require not that justice in a State or Governour which they exact of private Men the Cause of that errour is first in that they consider nothing in the Law but the Profit arising thence Which is evident in single Citizens unable to defend themselves but great Cities and States seeming to contain all things in themselves which are needfull for the well supporting of life seem not to have need of that virtue that looks abroad and is called Justice But not to repeat what was said that Law was not onely provided for profits sake there is no Common-wealth so strong that may not sometime stand in need of help from without either for commerce or also for repelling the Forces of many forein Nations united together against it Whence we see the most potent States and Kings have desired Leagues all virtue whereof is taken away by those that confine Law within the bounds of a City It is most true Take away Law
by this that Jesus was that promâ—…sed Messias the King of a heavenlâ—… Kingdom who should give the poweâ—… of the Holy Spirit to them that believe on him XVII The fourth Argument THe fourth Argument seems to me 〈◊〉 no small weight If the Right 〈◊〉 capital punishments and of defendinâ—… the people by force of Arms againâ—… Robbers and Spoilers be taken away thence will follow licence of wickednesâ—… and a deluge as it were and floud of evils when as although Justice be now executed that stream is hardly kept within the banks Wherefore had it been the mind of Christ to bring in such a state of things as was never heard of doubtless he would in most plain and express terms have commanded that none should give sentence of death that none should bear Arms which command he hath no where promulged for the alleged places are very general or very obscure Now equity and common reason shews not only general words must be restrained and doubtfull words commodiously explained but the propriety and received use of words somewhat declined that a very incommodious and incoherent sense may be avoyded XVIII The Fift Argument FIftly it can be evinced by no Argument that the Judicial Law of Moses expired before the destruction of Jerusâ—…lem wherewith fell both the form and the hope of that Common-wealth for neither is any term prefixed to that Law in the Law itself nor do Christ or his Apostles ever speak of the Cessation of it but as it may seem comprehended in the destruction of the Common-wealth as we have said yea on the contrary Paul saith the High-Priest was set to give judgement according to the Law of Moses Christ himself in the preface to his precepts saith He caâ—… not to dissolve the Law but to fulfill it the sense of which words as to Riâ—…uals is not obscure for the lineaments and shadowings are filled up and compleated when the perfect species of a thing is presented to our view as to the judicial Laws how can it be true if Christ as some do think hath by his comming taken them away But if the obligatior of the Law remained as long as thâ—… Common-wealth of the Hebrews stood it follows that even the Jews converted unto Christ if they were called unâ—… Magistracy could not shun it and thâ—… they ought to judge no otherwise thaâ—… Moses had prescribed Methinks wheâ—… I weigh all things there is not the leafâ—… motive for any pious man that hearâ—… Christ at that time speaking to understand his words in any other sense Thiâ—… I acknowledge before the time of Christ some things were permitted whether in respect of outward impunity or also of inward purity I need not determine which Christ hath forbidden the Disciples of his institution as to put away ones wife for every cause to seek reveng from the judg upon the injurious personâ—… yet between the precepts of Christ and those permissions there is a certain diversity no repugnance For he that keeps his wife and remits the injury doth nothing against the Law yea he doth that which the Law wills most 'T is otherwise with the Judge whom the Law not permits but commands to put the Murderer to death himself becomming guilty of blood before God unless in this case he shed it If Christ forbid him thus to punish the murderer his precept is plainly contrary to the law he dissolveth the law XIX The Sixt Seventh and Eighth Arguments THe sixth is from the example of Cornelius the Centurion who received from Christ the Holy Spirit an undoubted sign of his justification and was Baptized in the name of Christ by the Apostle Peter but that he left his Office of War or was advised by Peter to leave it we do not read Some answer whereas he had instruction from Peter concerning Christian Religion it is to be supposed that he was also instructed to desert his place This were something if it were certain and undoubted that Christ among the rest of his precepts had forbidden War But when that is no where else expressed here at least was a fit place to say somewhat of it that the age to come might not be ignorant of the rules of their duty Nor is it the manner of Luke where the quality of the persons required a special change 〈◊〉 life to pass it over with silence as 〈◊〉 may see elsewhere The seventh Argument like to this is taken from thâ—… which we began afore to say of Sergiâ—… Paulus for in the story of his conversion there is no intimation of his 〈◊〉 nouncing his office nor of any admâ—…nition given him to do so Now thâ—… which is not related as even now 〈◊〉 said when it is of most concernment aâ—… the place requires it is to be conceive not at all to be done The eighth mâ—… be this that Paul the Apostle haviâ—… understood the Jews plot against him willed it to be revealed to the chief Câ—…tain and when the chief Captaâ—… gave him a guard of Souldiers to secâ—… his journy he accepted of it makiâ—… never a word to the Captain or 〈◊〉 Souldiers that God was not pleasâ—… with resisting of force by force And 〈◊〉 Paul was a man who would himself 〈◊〉 mit nor suffer others to omit no occâ—…sion of teaching men their duty XX. The ninth tenth and eleventh Arguments NInthly The proper end of a thing just and lawfull cannot but be just lawfull It is not only lawfull but we have a precept obliging the conscience to pay tribute And the end of Tribute is that the publick powers may have wherewith to defray the charge upon them for the defence of good men and the coercion of the bad Tacitus speaks to our purpose The quiet of the world cannot be had without Arms no Arms without Souldiers pay nor pay without contribution Tenthly Paul speaks thus If I be an offender or have committed any thing worthy of death I refuse not to die Whence I collect that in Paul's judgement even since the publication of the Gospel there are some crimes which equity alloweth yea and requireth to be punished with death Which also Peter sheweth in the first of his Epistles Had the will of God been so now that capital judgements should cease Paul might indeed have made an Apology for himself but he ought not to have left in the minds of his hearers such an opinion as this that it was no less lawfull now than heretofore to put offenders to death Now it being proved that capital punishments are rightly used since the comming of Christ it is withall proved as I suppose that some War may be lawfully waged to wit against a multitude of armed offenders who must be overcome in battail before they can be brought to judgement For the forces of offenders and their boldness to resist as in a prudent deliberation it haâ—… some moment so it diminisheth nothing of the right it self
Zabdas the thirtieth Bishop of Hierusalem and shewed forth an example of Christian constancy and patience memorable to all posterity which we shall relate hereafter Here it may susfice to set down that speech of theirs which with solid brevity expresseth the Duty of a Christian Souldier We offer against any enemy in the world these our hands which we think impiety to embrue with the bloud of innocent men These our hands are expert to fight against wicked men and enemies they know not how to cut in pieces pious men and those of our own Country We have not forgotten that we took up Arms for our Countrymen not against them We have alwaies fought for justice for piety for the safety of the innocent these have been hitherto the price of our perils We have fought for Faith which how shall we keep with yon they speak to the Emperour if we preserve it not with our God Basil of the more antient Christians thus The slaughters made in War our Ancestors accounted not for slaughters having them excused who draw the sword on behalf of piety and vertue XXXIV That all private War is not unlawful by natural Law THat some private War may be lawfully waged as to the Law of Nature appears sufficiently by what hath been said above when we shewed it is not repugnant to the Law of Nature to repel force by force and defend ones self from injury But haply some may think it now unlawful since the constitution of publick Courts of Justiee for although these Courts be not from nature but from humane Ordinance yet seeing it is much more honest and becomming and more conducible to mans quietness that the matter should be tryed before an indifferent Judge than that the parties themselves interessed who too often favour themselves overmuch should execute what they think right by force equity and natural reason dictate to us that it is our duty to observe so laudable an Institution Paulus the Lawyer saith It is not to be granted to the parties to do that which may be done publickly by the Magistrate lest it be an occasion of making a greater tumult And the King Theodoricus Hence it is that the reverence of the Laws was found out that nothing might be done by force nothing by ones own impulse For what difference between the clamness of Peace and the confusion of War if controversies be determined by force The Laws call it force as often as any man requireth that which he thinks due unto him not by course of Law Certainly it must be confessed the licence permitted before the constitution of Courts of Justice is much restrained since And yet since it sometimes taketh place namely where publick Justice is wanting for the Law forbidding a man to seek his own otherwise than by course of Law ought commodiously to be understood with this clause where Law and judgement may be had Now this is wanting either at the instant or for continuance at the instant as where the Judge cannot be waited for without certain peril and loss for continuance either by right or by fact By right if one be in places unpossest as on the Sea in a desert in void Islands and if there be any other places wherein there is no Government by fact if the Subjects do not acknowledge the Judge or the Judge openly hath rejected the tryal of such a cause That we have said all private War is not repugnant to natural right even since the constitution of Courts of Justice may also be made apparent from the Law given the Jews where God speaks thus by Moses If a thief be found breaking up and be smitten that he die there shall no bloud be shed from him If the Sun be risen upon him there shall be bloud shed for him Truly this Law so accurately distinguishing seems not only to induce impunity but withall to explain natural right nor seemeth it to be grounded in any peculiar divine mandate but in common equity Whence we see other Nations also have followed the same That of the 12. Tables is notable drawn no doubt from the old Attic Law If a thief steal by night and be killed he is iustly killed So by the Laws of all Nations whom we have known is he judged guiltless who hath by arms defended his life against a violent assault This so manifest consent is testimony enough that here is nothing contrary to natural right XXXV Nor by the Law Evangelical Objections proposed COncerning the more perfect voluntary divine Law that is the Evangelical there is more difficulty That God who hath more right over our lives than we have our selves might have required of us so much patience as to lay down our lives and when we are brought in danger by the assault of a private person rather choose to be killed than to kill I do not doubt But the question is whether it hath pleased him to oblige us so far or no. On the affirmative part are usually brought two places which we alleged afore upon the general question But I say unto you resist not the injurious person and Revenge not your selves dearly beloved There is a third place in those words of Christ to Peter Put up thy Sword into the sheath for they that take the Sword shall perish by the Sword Some adde unto these the example of Christ who dyed for his enemies Nor are there wanting among the old Doctors who although they disapproved not publick Wars were nevertheless of opinion that private defense was forbidden We have above set down some places of Ambrose for VVar and more of Austin and more clear known to all Yet hath the same Ambrose said And perhaps therfore the Lord said to Peter shewing two Swords It is enough intimating it was lawful until the Gospel came which instructeth us in the truth as the Law did in Justice The same Father elsewhere A Christian if he fall upon 〈◊〉 armed thief cannot strike him again that striketh lest while he defends his safety he offend against piety And Augustin hath said I do not indeed reprehend the Law which permitteth sucâ—… thieves and other violent assaulters to be slain but how to defend those the slay them I do not find And elsewhere As to killing of men lest one be killed I do not like that course unless perhaps one be a Souldier or bound by publick Office that he doth not this for himself but others having received lawful power And that Basil was of the same mind appears sufficiently out of his second Epistle to Amphilochius XXXV The lawfulness of private defense confirmed BUt the opposite opinion as it is more common so it seemeth unto us more true that an obligation is not laid upon us to be so patient For we are commanded in the Gospel to love our neighbour as our selves not above our selves yea where equal evil is imminent we are not forbidden
just conceive all VVars to be condemned as unjust and unlawful whereunto this appellation of just is not agreeable That VVar according to the Law of Nations may be solemn two things are requisite first that it be waged on both sides by his authority who hath the highest power in the Common-wealth Secondly that certain rites be used of which we shall speak in due place One of these because they are both required without the other doth not suffice Publick War less solemn may want those rites and 〈◊〉 waged against private persons and â—…ave for the author any Magistrate And truly if the matter be considered without civil Laws it seemeth that every Magistrate hath right to wage War as for defense of the people committed to his charge so for the exercise of jurisdiction if he be opposed by force But because by War the whole Common-wealth is endangered therefore by the Laws of all people almost it is provided that War be not undertaken without the authority of him whose power in the Common-wealth is highest There is exstant such a Law of Plato's and in the Roman Law it is called treason in him who without the command of the Prince hath waged War or listed Souldiers and raised an Army In the Cornelian Law brought in by L. Cornelius Sylla it was without the command of the people In Justinians Code is exstant a Constitution of Valentinian and Valens None have leave to take any arms without our knowledge and direction Pertinent is that of Austin Natural order for preserving peace among men requires this that 〈◊〉 thority and counsel in undertaking 〈◊〉 should remain in the Princes But 〈◊〉 all sayings how universal soever 〈◊〉 be interpreted by equity so must 〈◊〉 Law For first there is no doubt 〈◊〉 that 't is lawful for one having juriâ—…ction by force of his Apparitors or 〈◊〉 jeants to constrain a few disobedâ—… persons as oft as there is no need 〈◊〉 greater power to that purpose and 〈◊〉 danger imminent to the Common-wealth Again if it be so present 〈◊〉 danger that time will not admit of consultation with him who hath supâ—… power here also necessity affordeth 〈◊〉 exception By this right L. Pinâ—… Governour of Enna a Garrison in 〈◊〉 cily having certain information that 〈◊〉 Townsmen were falling off to the 〈◊〉 thaginians making a slaughter of then kept the Town Without such necesity to revenge the injuries which the King neglecteth to persue a right of 〈◊〉 ring is allowed to the Citizens by the bolder pen of Franciscus Victoria but his opinion is by others justly rejected XXXIX Of War waged by inferiour Magistrates IN such cases wherein the lower powers have right to make War the Interpreters of Law do not agree whether that War may be called publick Some say Yea some No Certainâ—…y such VVars are publick if by pubâ—…ick we mean that which is made by the right of the Magistrate and therefore they that in such a case oppose themselves against the Magistrates fall into the punishments of persons contumacious against Superiours But if publick be taken in the more excellent signification for that which is solemn as it is without controversy oft taken those Wars are not publick because to the plenitude of that right both the judgement of the highest power and other things are requisite Nor am I mov'd with this that in such contention also they are wont to take the spoil of the resisters and give it to the Souldier for this is not so proper to solemn War but it may have place elsewhere And it may also happen that in an Empire of larger extent the inferiour powers may have power granted them to begin a War in which case the VVar is supposed to be made by the highest Power because every one is judged author of that which he giveth another Commission to do That is more Controverâ—… whether a conjecture of the will of thâ—… highest where there is no mandate 〈◊〉 sufficient To me it seemeth not For 〈◊〉 sufficeth not to see what would be the pleasure of him that hath the higheâ—… Power if he were consulted with in this conjuncture of affairs but this is rather to be considered what he wherâ—… the matter admits delay or is of doubtful deliberation may desire should be done without consulting with him if a Law were to be made about it For although in some particular fact the particular reason ceaseth which moves the will of the Soveraign yet the universal reason holdeth which requires dangers to be withstood VVhich cannot be if every Magistrate draw unto himself the judgement thereof Justly therefore was C. Manlius accused by his Legats because without command of the Roman people he had made VVaâ—… upon the Gallo-Grecians for albeit the Legions of the Galli had served in the Army of Antiochus nevertheless after the peace agreed on with Antiochus whether that injury were to be revenged upon the Gallo-Grecians was not at the pleasure of C. Manlius but of the people of Rome That C. Caesar for carrying VVar against the Germans should be yielded up to the Germans was the sentence of Cato not so much as I conceive regarding justice as desiring to acquit the City from the fear of an Usurper for the Germans had given aid to the Gauls enemies of the Roman people and therefore had no reason to complain of injury done them if the Romans had just cause of warring against the Gauls And yet Caesar ought to have been content with the expulsion of the Germans out of Gallia the Province committed to him and not to pursue the Germans with War within their own bounds especially without any appearance of danger thence unless he had advised first with the people of Rome So then the Germans had no right to require him to be given up into their hands but the people of Rome had right to punish him just as the Carthaginians answered the Romans Whether Saguntum waâ—… assaulted by private or publick Counsel we conceive is not to be made the question but this whether it was assaulted justly or unjustly for to our selves is an account to be given by our Citizens whether he did it of himself or by Commission With you this alone is disputable whether it vere a violation of the league or no. Cicero defends the action both of Octavius and Decimus Brutus who on their own heads took Arms against Antonius But suppose Antony deseâ—…ved hostile opposition yet was the judgement of the Senate and people of Rome to be waited for whether it were for the good of the Common-wealth to dissemble what was done 〈◊〉 to revenge it to come to conditions of peace or go forth to War For no man is compell'd to use his own right which is often conjoind with hazard Again suppose Antonius be declar'd an enemy yet the deliberation was to be left to the Senate and people of Rome by whose conduct especially they
would p ease to make the War Thus the Rhodians answer'd Cassius when he demanded aid according to the league that they would send him aid if the Senate wou'd command Being admonisht by this example and we may meet with more let us remember not to approve of all things though deliver'd by Authors of greatest name for they often serve the times or their affections and bend the rule as occasion requires wherefore 〈◊〉 must take some pains in matters of this nature to clear the eye of our judgement and examine things thorowly and noâ—… rashly draw into example what may rather be accounted capable of excuse than worthy of our praise and imitation Wherein some fall into pernicious errours Now whereas it hath been said that publick War is not to be waged unless by his authority who hath the highest power to the understanding hereof and of that question that is about solemn War and so to many other purposes it will be necessary to understand what is that highest Power and who have it and so much the more necessary because in our age learned men every one having pursued that Argument rather according to the exigence of present affairs than according to the Truh have rendred the matter much more difficult which of it self is not very easy XL. Wherein consisteth civil Power THe moral faculty of Governing a City which is stiled by the name of civil Power is described in Dionysius Halicarnessensis by three especial notes a right of creating Magistrates a right of making and abolishing Laws a right of decreeing War and Peace elsewhere he addes a fourth Courts of justice and elsewhere the care of Religion and calling of assemblies Others express themselves otherwise But if one will make an exact partition he shall easily find all that pertains hither so that nothing may be wanting or superfluous For the Governour of a City governs it partly by himself partly by others By himself he is either conversant about universals or about singulars About Universals by making and abolishing Laws as well about sacred so far as the care of them belongs unto the City as about civil affairs This art is call'd by Aristotle architectal The singulars about which he is conversant are either directly publick or private yet in order to the publick Directly publick are Actions as of Peace War Leagues or Things as Tributes and the like Wherein is comprehended also that eminent Dominion which the City hath over the Citizens and their estates for the publick use The Art about these is exprest in Aristotle by the general name political or civil and is also called the Art of consultation Private things are such as are controverted between party and party which it concerns the publick quiet to be determined by publick authority And this Art is by Aristotle termed judicial The things done by another are dispatched either by Magistrates or by other procurators to which number Embassadors are to be referred And in these particulars consisteth the civil power XLI What Power is Highest THat is call'd the Highest Power whose acts are not under the right of another so as to be made void at the pleasure of another humane will When I say of another I exclude him who enjoyeth the highest Power who may change his own will as also his Successor who enjoyeth the same right and therefore hath the very same power Let us now see in what subject this highest power is There is a common subject and a proper subject as the common subject of sight is the body the proper is the eye so the common subject of the highest Power is a City that is a perfect society We exclude therefore people or Countries that have yielded up themselves or fallen to the dominion of another people such as were the Provinces of the Romans for these are not by themselves a City as now we take the word but less worthy members of some great City as servants are members of the family Again it comes to pass that several Nations or Countries have one and the same head which do nevertheless every one make up a perfect society by themselves for it is not in the moral body as in the natural in the natural one cannot be the head of several bodies but in the moral the same person considered in a divers relation may be the head of bodies many and distinct Wherof this is a certain Argument that the Royal Family being exstinct the Empire returns to every people severally So also it may happen that more Cities may be confederated one with another by a most close league and make certain System as Strabo uses to speak and yet not any one of them ceases 〈◊〉 retain the State of a perfect City which is noted both by others and by Aristotle in more places than one 〈◊〉 then let a City so understood as we havâ—… said be the common subject of the highest Power the proper subject is a person one or more according to the 〈◊〉 and customs of every Nation XLII That the highest Power is 〈◊〉 alwaies in the people HEre is first to be rejected their opinion who will have the highest Power every where and without exception to be in the people so 〈◊〉 they may restrain and punish Kings as oft as they use their power amiss which opinion how many mischiefs 〈◊〉 hath occasion'd and may yet produce if it be throughly enâ—…rtain every wise man sees We oppose these Arguments against it It is lawful for 〈◊〉 every man to addict and yield himself into private servitude to whom he pleaseth as appears both out of the Hebrew Law and the Roman Why then may not any people being at their own dispose give up themselves to one or more so as to transcribe the right of governing them wholy to their Ruler no part of that right retained or reserved to themselves Nor may you say that cannot be presumed for we do not here enquire what may be presumed in a doubtful case but what may be done in point of right 〈◊〉 vain also are here alleged the incommodities that follow or are possible for what kind of Government soever you shall frame in your mind you will never exclude all incommodities or hazards You must be content in every way to take the good and evill one among another Now as there are many courses of life one more excellent than another and every man is at liberty among many to choose which he doth most affect so may any people also make choice of what form of government they please neither is the right to be measured by the excellency of this or that form for divers men have divers judgements hereof but by their will And indeed there may arise many causes why the people may abdicate from themselves the whole right of commanding and give it to another viz. because being brought into danger of their life they can find no
behalf of the Commonwealth in Syria Pescennius Niger in Gallia and Britain Clodius Albinus But their enterprize also displeased the Christians which Tertullian likewise boasteth of to Scapula We are defamed concerning the Emperours Majesty yet could the Christians never be found either Albinians or Nigrians or Cassians Cassians were they that followed Avidius Cassius an eminent man who having taken up arms in Syria pretended he would restore the Commonwealth undone by the negligence of M. Antonius Ambrose when he thought injury was done not to himself alone but to his flock and to Christ by Valentinus the son of Valentinian would not use the commotion of the people ready enough to make resistence Violence saith he being offerd I have not learned to resist I can grieve I can weep I can sigh against armes and soldiers oven Goths my arms are my tears For such are the muniments of Priests In any other sort neither ought I nor can I resist After It was required of me that I should restrain the people I answerd it was in me not to raise them in Gods hand to quiet them The same Ambrose would not use the forces of Maximus against the Emperour being both an Arrian and a persecutour of the Church So was Julian the Apostat when he plotted the Churches ruine repressed by the tears of Christians as Nazianzen saith adding This was the only remedy against a persecutor And yet almost all his Army was made up of Christians Adde hereunto that as the same Nazianzen observes that persecution of Julian was not onely injurious to the Christians but had brought the Commonwealth also into extreme danger We will close up this with a saying of Augustin where he explaines the words of Paul to the Romans It is necessary for this life we should be subject not resisting if they the Governors shall please to take any thing from us LXVII It is not lawfull for inferiour Magistrates to make war upon the Highest OUr age hath brought forth men learned indeed but too observant of times and places who perswaded themselves first for so I believe and then others that the things above spoken have place among private persons not also among inferiour Magistrates who as these men thinke have a right to resist the injuries of the Soveraign yea they sin unless they do resist This is not to be admitted For as in Logick the intermediate species if you respect the genus is species if the species below it is genus so these Magistrates in regard of their inferiours are publique persons but in relation to their superiours are private For all faculty of governing which is in Magistrates is so subjected to the highest Power that whatsoever they do against the will of the soveraign is destitute of that faculty and therefore to be accounted for a private act For that saying of the Philosophers hath place here also There can be no order without relation unto somewhat which is first Who think otherwise to me they seem to introduce such a state of things as the Antients feign to have been in heaven before the the Rise of Majesty when they say the minor Gods yeelded not to Jove But the Order which I have mentioned and subalternation is not onely known by common sense but proved also by divine authority For the Prince of the Apostles would have us to be subject otherwise to the King otherwise to the Magistrates to the King as supereminent i. e. without any exception beside those things which are directly commanded by God who approves patience of injury forbids it not to the Magistrates as sent by the King i. e. deriving their power from him And when Paul requires every soul to be subject to the highest powers he included also the inferiour Magistrates If we look back upon the Hebrew people where so many Kings were contemners of divine and human Law we shal never finde that the inferiour Magistrates amongst whom were very many men pious and valiant took so much upon them as to oppose any force against the Kings unless they had receiv'd from God who is King of Kings a speciall mandate But on the contrary what is the duty of Peers Samuel shews when in the sight of the Peers and people with accustomed veneration he attended Saul now ruling perversly Moreover the state of publique Religion alwayes depended on the will of the King and Sanedrin For that the Magistrates and people after the King promised their fidelity to God this must be understood so far as it was in the power of every one And more the images of false Gods publikly exstant we never read to have been thrown down unless by command either of the people in the free State or of the Kings if they ruled Howbeit if at any time any thing was done by force against the Kings it is related for testimony of divine providence permitting it not for approbation of humane fact The Authors of the contrary opinion are wont to object a saying of Trajan when he gave a sword to the Praetorion Prefect Use it for me if I govern well if ill against me But we must know that Trajan as appears by Plinio's Panegyric was very studious to shew nothing regal but to act a true Prince subject to the judgment of Senate and people whose decrees the Prefect's duty was to execute even upon the Prince himself Like to this is that we read of M. Antoninus who would not touch the publique money without the advice of the Senate LXVIII In case of extreme and inevitable necessity what may be done THis is a greater question whether the Law of not resisting bind us in extreme and most certain danger For even some Laws of God although generally exprest have a tacit exception of extreme necessitie which in the time of the Hasmoneans was defined by wise men concerning the Law of the Sabbath Whence it is a common saying Peril 〈◊〉 life drives away the Sabbath and a Jeâ—… in Synesius gives this reason of neglectinâ—… the Law of the Sabbath We were brought into most certain danger of our life Whiâ—… exception is approv'd by Christ himself as also in another Law of not eating thâ—… shew-bread And the Hebrew masters out of the old tradition adde the same exception to the laws of forbidden meats and to some other And rightly Not that God may not bind us over to certain death if he please but because certain laws are of such an argument that it is not credible they were given out of 〈◊〉 rigid a will Which holds more strongly in humane laws I deny not but even a humane law may command some act of vertue under certain peril of death aâ—… the law of not deserting ones Station but we must not rashly conclude that was the will of the Law maker nor dâ—… men seem to have taken so much right over themselves and others but so far aâ—… extreme
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
and that two ways either for his punishment or for the publick good by vertue of supereminent dominion Hence also may be understood if the party swearing be not of the same country with him to whom the oath is made what his or the others Rulers may do concerning it But he that hath sworn and promised something to a nocent person as such namely to a pirate cannot therefore take away from him in the way of punishment the right which he hath gotten by the promise because then the words would have no effect which by all means is to be avoided XLV What oaths are properly meant in the charge of Christ against swearing HEre it is observable by the way that the words of Christ and of James against swearing do not properly belong to an assertory oath whereof are some examples in the Apostle Paul but to the promissory of a future uncertain thing This evidemtly appears by the opposition in the words of Christ Ye have heard it hath been said to them of old Thou shalt not forswear thy self but shalt render to God thy oath But I say unto you swear not at all and the reason given by James is this Lest ye be found deceitfull for that is the meaning there The same is proved by the words of Christ But let your Communication be yea yea nay nay which is exprest by S. James thus But let your yea be yea and your nay nay Where the first yea and nay signifies the promise the later its performance For yea is a word of promising whence it is explain'd by Amen Apoc. 1. 7. and of the same signification among the Roman Lawyers are the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and quidni in answer to a stipulation For the impletion of a promise it is taken in that place of Paul where he saith All the promises of God in Christ are Yea and Amen Hence the old saying of the Hebrews A just mans yea is yea and his nay is nay On the contrary whose deeds disser from their words with them is said to be yea and nay that is their yea is nay and their nay is yea So the Apostle himself expounds it for when he had denyed himself to have used lightness he addeth his speech was not yea and nay Now if yea and nay signify lightness it follows that yea yea nay nay signify constancy Christ therefore saith the same with Philo It is best and most prosâ—…able and to the rational nature most convenient to abstein from swearing and so to accustom ones self to veracity that ones word may be taken for anoath Josephus of the Essens Whatsoever they say is firmer than an oath and to swear is accounted among them a thing supersluous From the Essens or those Hebrews whom the Essens followed this seems received by Pythagoras whose sentence 't is Let no man swear by the Gods but every one take care of his credit that he may be believed without an oath The Scythians say of themselves to Alexander as Curtius relateth Think not that the Scythians confirm their friendship by oath they sweâ—… by keeping their word Cicero relates in his Oration for L. Cornelius Balbus When one at Athens who had lived amongst them in great repute for his gravity and sanctity had publickly given his testimony and approched to the Altars to make his oath all the Judges with one voyce reclamed and would not let him swear because they would not have it thought that truth depended more upon the religion of an oath than upon the word of an honest man With the saying of Christ well agrees that of Hierocles upon the golden verses He that in the beginning said Reverence an oath therein gave a precept to abstain from swearing about such things which may be done and not done and are of an uncertain issue For such things are little to be regarded and are mutable and therefore neither are they worthy of an oath nor is it safe And Libanius accounts it among the praises of a Christian Emperour He is so far from perjury that he is even afraid to swear the truth XLVI Of faith given without an Oath THerefore in many places in stead of swearing it was invented that faith should be bound by giving the right hand which was the firmest bond of faith among the Persians or by some other sign which was of that force that if the promise were not fulsilled the promiser was accounted no less detestable than if he had forsworn himself Principally of Kings and Princes it is a most usual saying Their word is as strong as an Oath For they ought to be such that they may say with Augustus Bonae sides sum My credit 's good and with Eumenes I will lose my life sooner than my credit Caesars right hand is praised by Cicero for firmness in keeping promises no less than valour in wars and battails and in the Heroical times the Scepter lifted up went for the Oath of Kings as Aristotle hath noted 3. Polit 14. XLVII OF LEAGUES They are lawfull with aliens from true Religion by the Law of Nature LEagues are Covenants or Agreements made by command of the highest powers wherein the parties are bound over to the divine wrath in case they break their faith It is a famous question Whether they may be enterd into with those that are aliens from true Religion which in the Law of Nature hath no doubt or difficulty for that Law is so coÌ„mon to all men that it admitteth not any difference of Religion But the question is about the Law Divine out of which it is discussed not by Divines only but by some Lawyers too and amongst them by Oldradus and Decianus XLVIII They are not universally forbidden by the Hebrew Law FIrst let us consider of the old Divine Law and after of the new It was lawful before the Law of Moses to contract a League with aliens from Religion for an offensive and harmless behaviour We have an example in the League of Jacob with Laban to say nothing now of Abimelech seeing it is not certain he was an Idolater Nor did the Law given by Moses make any change The Egyptians may be an example who were then no doubt Idolaters yet are the Hebrews forbidden to be averse from them The seven Nations are to be excepted condemnd by divine sentence whereof the Israelites were delegated to be the executioners For these persisting in their Idolatry and refusing to submit might not be spared to whom by divine decree were added the Amalekites Leagues of commerce also and such like perteining to the utility of both or of either party are by the Law permitted with the prophane for nothing is found to hinder them And we have the examples of Leagues which David and Solomon made with Hiram King of Tyrians and it is observable that in the sacred history
it could not be foreseen whether they would prove evill men and besides it cannot be avoided but we must imploy such otherwise no Army can be raised Neither are Kings to be accused if their soldiers either by land or sea wrong their confederates contrary to their command as appears by the testimonies of France and England Now that any one without any fault of his own should be engaged by the fact of his Ministers is not a point of the Law of Nations by which this controversy is to be judged but of the Civil Law nor this general but introduc'd upon peculiar reasons against seafaring men and some others And on this side sentence was given by the Judges of the supreme Auditory against certain Pomeranians and that after the example of things iudged in a case not unlike two Ages before LXIV Of the right of Embassages AMong the Obligations which that Law of Nations which we call voluntary hath by it self introduced a principal head is of the right of Embassages For we frequently read of the sacred privileges of Embassages the sanctimony of Embassadors the right of Nations right divine and human due unto them and many such like expressions Cicero de Haruspicum responsis My judgment is that the right of Embassadors is secured both by the safeguard of men and also by the protection of Law divine Therefore to violate this is not only unjust but impious too by the confession of all saith Philip in his epistle to the Athenians LXV Among whom the right of Embassages hath place HEre we must know whatever this right of Nations be it pertains to those Legats which are sent from supreme Rulers by one to another For besides them Provincial Legats and Municipal and others are directed not by the Law of Nations which is between one Nation and another but by the Civil Law An Embassador in Livy calls himself the publike messenger of the Roman people In the same Livy elswhere the Roman Senat saith The right of Legation was provided for a foreiner not a Citizen And Cicero that he may shew Legats are not to be sent to Antonius saith For we have not to do with Annibal an enemy of the Commonwealth but with one of our own Country Who are to be accounted foreiners Virgil hath so expressed that none of the Lawyers can more clearly That I suppose a forein Land Which is not under our Command They then that are joind in an unequal league because they cease not to be in their own power have a right of Legation and these also who are partly subject partly not for that part wherein they are not subject But Kings conquerd in a solemn war and deprived of their Kingdom with other Royalties have loft also the right of Legation Therefore did P. Aemilius detein the Heralds of Perseus whom he had conquer'd Yet in Civil wars necessity sometimes maketh place for this right beside the rule as when the people is so divided into equal parts that it is doubtfull on which side the right of Empyre lyeth or when the right being much controverted two contend about succession into the Throne For in this case one Nation is for the time reckoned as two So Tacitus charged the Flavians that in the Civil rage they had violated in respect of the Vitellians that right of Legats which is sacred even amongst forein Nations Pirats and Robbers that make not a Society cannot have any succour from the Law of Nations Tiberius when Tacfarinas had sene Legats to him was displeas'd that a traitour and plunderer us'd the manner of an enemy as Tacitus hath it Nevertheless sometimes such men faith being given them obtain the right of Legation as once the Fugitives in the Pyrenean Forest LXVI Whether an Embassage be alwayes to be admitted TWo things there are concerning Embassadors which we see commonly referrd to the Law of Nations first that they be admitted next that they be not violated Of the former is a place in Livy where Hanno a Carthaginian Senator inveighs against Annibal thus Embassadors coming from our Confederates and on their behalf our good General admitted not into his camp but took away the right of Nations Which yet is not to be understood too crudely for the Law of Nations commandeth not that all be admitted but forbiddeth them to be rejected without cause There may be cause from him that sendeth from him that is sent from that for which he is sent Melesippus Embassador of the Lacedemonians by the Counsel of Pericles was dismist out of the bounds of Attica because he came from an armed enemy So the Roman Senate said they could not admit the Embassage of the Carthaginians whose Army was in Italy The Achaians admitted not the Embassadors of Perseus raising war against the Romans So Justinian rejected the Embassy of Totilas and the Goths at Urbin the Orators of Belisarius And Polybius relates how the messengers of the Cynethenses being a wicked people were every where repulsed An example of the second we have in Theodorus call'd the Atheist to whom when he was sent unto him from Ptolomaeus Lisimachus would not give audience and the like hath befallen others because of some peculiar hatred The third hath place where the cause of sending either is suspected as that of Rabshake the Assyrian to disturb the people was justly suspected by Hezekia or not honourable or unseasonable So the Etolians were warned by the Romans that they should send no Embassy without permission of the General Perseus that he should not send to Rome but to Licinius and the Messenges of Iugurtha were commanded to depart Italy within ten days except their comming were to deliver up the Kingdom and the King As for those assiduous Legations which are now it use they may with very good right be rejected for the no-cessity of them appears by the ancient custom whereto they are unknown LXVII Of not violating Embassadors OF not violating Embassadors is a more difficult question and variously handled by the most excellent wits of this Age. And first we must consider of the persons of Embassadors then of their Train and their Goods Of their persons some think thus that by the Law of Nations onely unjust force is kept from the bodyes of Embassadors for they conceive priviledges are to be understood by Common right Others think force may not be offerd to an Embassador for every cause but on this ground if the Law of Nations be broken by him which is a very large ground for in the Law of Nations the Law of Nature is included so that the Embassador may now be punisht for all faults except those which arise meerly out of the Civil Law Others restrain this to those Crimes which are done against the State of the Common-wealth or his Dignity to whom the Embassador is sent Which also some hold perillous and would have complaint made
to him that sent him and the Embassador left to his Master's judgment There are some too that say the Kings or Nations unconcerned are to be consulted with which indeed may be a point of prudence cannot be of right The reasons which every one brings for his opinion conclude nothing definitely because this right not like natural right certainly ariseth out of certain reason but is determined by the will of Nations Now it was in the power of Nations either absolutely to provide for the safety of Embassadors or with certain exceptions for on this side may be alleged the utility of punishing great offenders and on the other side the utility of Embassages the facility whereof is best promoted by securing them as much as may be We must therefore see how far Nations have consented which cannot be evinced by examples only for many are extant on both sides Wherefore we must have recourse both unto the judgments of wise men and unto conjectures Two judgments I have most illustrious one of Livy another of Sallust Livy if the Embassadors of Tarquin who had raised treason at Rome saith Although they seemed to have committed that for which they ought to be in the place of enemies yet the right of Nations prevailed We see here the right of nations extended even to them that do hostility The saying of Sallust pertains to the Embassadors train of whom we shall speak anon not to the Embassadors themselves but the Argument will proceed rightly à majori ad minus that is from a thing less credible to that which is more He saith Bomilcar the Companion of him who came to Rome on the publick faith is made guilty rather according to rules of equity than by the Law of Nations Equity that is the meer Law of Nature suffers punishment to be exacted where is found a delinquent but the Law of Nations excepteth Embassadors and such like who come upon publick faith Wherefore that Embassadors be made guilty is against the Law of Nations whereby many things are wont to be prohibited which by the Law of Nature are permitted Conjecture also goes on this side for it is more true that privileges should be so understood that they may give somewhat beyond Common right Now if Embassadors be only secur'd from unjust violence therein were no great matter nothing of preeminence Add that the security of Embassadors outweighs the utility arising from punishment For punishment may be taken by him that sent the Embassador being willing and if he be unwilling it may by man be exacted of him as an approver of the crime Some object better one be punisht than many involv'd in war But if he that sent the Embassador approve his deed the Embassadors punishment will not free us from the war Now on the other side the safety of Embassadors is in a slippry place if they ought to render a reason of their actions to any other but him by whom they are sent For when the Counsells of them that send and receive Embassadors are for the most part divers often contrary it can scarce happen but always somewhat may be said against an Embassador that may bear a shew of a crime And though some are so manifest that they have no doubt yet is a general danger sufficient for the equity and utility of a general Law Wherefore my opinion clearly is that it pleas'd the Nations that the Common custom which subjecteth every one being in a strange land to the Law of that land should admit an exception in Embassadors 1. That as they are accounted by a certain fiction for the persons of their Masters He brought with him a face of the Senate the authority of the Commonwealth saith Tully of an Embassador so also by the like fiction they should be set as it were without the compass of the land whereupon they are not bound by the Civil Law of that people amongst whom they live Wherefore if the offense be such one as may seem possible to be contemned it is either to be dissembled or else the Embassador is to be commanded to depart the Country Which Polybius saith was done to him who had given cause to the Hostages at Rome to escape away And hence on the by we may learn the reason why at another time the Embassador of the Tarentines for the same offense was beaten with rods namely because the Tarentines being conquerd begun to be under the Romans If the crime be cruel and publickly mischievous the Embassador must be sent to his Master with a request that he would punish him or give him up as we read the Galls required the Fabii should be deliverd to them But that which we have said afore that all human Laws are so temperd that they bind not in extreme necessity hath place also here about the Precept of the sanctimony of Embassadors Indeed that hight of necessity is not in the taking of punishment which also in other cases is taken away by the Law of Nations as we shall shew hereafter much less in the place time and manner of taking punishment but in the precaution of a great mischief especially publick Wherefore that an imminent danger may be withstood if there be no other remedy Embassadors may be both apprehended and examined So the Roman Consuls apprehended the Embassadors of Tarquin especiall care being had of their letters as Livy speaks that they might not be lost But if an Embassador use force of Arms he may be slain no doubt not by way of punishment but by way of Naturall defense So might the Galls kill the Fabii whom Livy stiles violaters of human Law Therefore in Euripides Demophon when the Herald sent by Euristheus endeavour'd to cary away the suppliants by force apposeth him by force and when he said Dare you strike me a Herald sent Answers Yes if you be violent His name was Copreus and because he proceeded violently and used force he was slain by the Athenians as Philostrastratus relates in the life of Herod By a distinction not unlike to this Cicero resolves that question Whether the son ought to accuse the father being a traytor to his Countrey For he will have it to be his duty to avert an imminent danger but not for punishment of the fact when the danger is past LXVIII The Law in favour of Embassadors binds not him to whom he is not sent THat Law which I have mentiond of not offring force to Embassadors is to be conceiv'd obligatory to him unto whom the Embassy is sent and so too if he hath admitted it there being after that time as it were a tacit Covenant between them Nevertheless it may and is wont to be denounced that Embassadors be not sent if they be they shall be taken for enemies as it was denounced to the Etolians by the Romans and of old by the Romans to the Veientes it was proclamed unless they would get them
expecially deliberate and frequent begeâ—…s a certain proclivity to the like which after growth is call'd a habit therefore with all speed vices are to be deprived of their allurement and this cannot be better done than by embittering their sweetness with some pain following The Platonists in Apuleius It is worse than any punishment if the guilty scape unpunished and in Tacitus we read The corrupted and corrupting minde sick and instam'd is to be restrained and cooled with remedies as vehement as the lusts wherewith it burneth LXXXIII Of punishing a delinquent for his own benefit PUnishment for this end is by nature lawful for any one that is of good judgment and not obnoxious to the same or equal vices as appears by that castigation which is by words but in stripes and other punishments that contein somewhat of coaction the difference between persons that may or may not is not made by nature nor could it be made only reason peculiarly commends to parents the use of that right over their Children by the neerness of affection but by Laws which for the avoiding of contention have restrained that common propinquity of mankind to the next Relations as may be seen both elswhere and in Justinians Code tit de emendatione propinquorum Whither perteins also that of Xenophon to his Soldiers If I have beaten any one for his good I confess I owe such a punishment as parents do to their Children Masters to their Scholars And Physicians too for their patients recovery sear and cut Lactantius lib. 6. Jubet Deus c. God commands us always to have our hand over our inferiours to chastise them daily for their offences lest by our unprofitable love and too much indulgence they be ill bred and nourished for vice But this kind of punishment cannot extend unto death except reductively as negations are reduc'd to the opposite things For as Christ said it had been better for some that is not so bad if they had never been so to incurable natures it is better that is less evil to die than to live when it is certain they will become worse by living Seneca speaks of such when he saith To perish is sometime for the good of those that perish Such a one Plutarch saith is hurtful indeed to others but most of all to himself And Galen when he had said men are punished with death first that living they may not hurt next that others by fear of punishment may be deterred adds And thirdly it is expedient for themselves to dye being so sick and corrupted in their mind that they cannot be restored to health Some think these are they whom John the Apostle saith do sin to death but because the arguments hereof are fallacious we are taught by charity to have no man for deplored and past hope so that punishment for this end can have place but very seldome LXXXV Of punishment for his profit who was offended And of revenge by the Law of Nations THe utility of him against whose interest the fault was made is herein placed that he suffer the like no more neither from the same nor others Gellius out of Taurus describes it thus When the dignity or authority of him that is wronged is to be maintaind lest pretermission of the penalty breed contempt of him and diminish his respect What is here said of authority wronged is to be understood of every ones liberty or other right wherein he is injured In Tacitus we read He should provide for his security by a just revenge That the injur'd party may not suffer wrong from the same hand three ways may be taken first by destroying the person that hath offended secondly by weaking his force that he may not be able to do hurt and lastly if he be taught by his own evil to do so no more which is the same with emendation whereof we spake even now That the injur'd party may not be hurt by others is effected not by every punishment but that which is open conspicuous and exemplary If then to these ends and within the bounds of equity vindication be directed though private if we respect the bare Law of Nature abstract from Laws Divine and Human and from all not necessary accidents to the thing it is not unlawfull whether it be made by him that is wronged or by another seeing it is consentaneous to nature that man should receive aid from man And in this sense may be admitted that Cicero having said the Law of Nature is that which comes not from opinion but innate vertue among the examples of it placeth Vindication which he opposerh to Favour and that none might doubt how much he would have to be understood by that name he defines Vindication Whereby by defending or revenging we keep off force and contumely from us and ours who ought to be dear unto us and whereby we punish offences By this natural right Samson defending himself against the Philistins saith He should be guiltless if he did return evil for evil to them and after a slaugâ—…ter made He defends his doing by the same reason saying he had served them as they would have served him The Plaâ—…ans in Thucydides Justly have we taken revenge upon them by the Law received among all men allowing recompence to enemies It is a common Law among men saith Demosthenes that we may be reveng'd of him that takes our goods by violence And Iugurtha in Sallust when he had said Adherbâ—… lay in wait against his life adds the people of Rome would do thaâ—… which is nâ—… good nor right if they hindred him from the right of Nations that is from reâ—…nge Aristides the Orator saitâ—… 〈◊〉 and Authors of Lawes and Proverbs and Orators and all men 〈◊〉 approve 〈◊〉 this That revenge shoâ—…a be 〈◊〉 of 〈◊〉 that have offerdinjury The Maccabees are prais'd by Ambrose for revâ—…ging the death of their innocent brethren even on the Sabbath The same Father disputing against the Jews making grievous complaint that their Church was fir'd by the Christians saith should I plead the Law of Nations I might shew how many Churches the Jews set on fire in the time of Julian ' s Empire where he calls it the Law of Nations to render like for like But because in our and our friends affairs we are corrupted by affection therefore many families came together into one place judges were appointed and power was given to these alone to avenge the injurd the liberty which nature had indulged being taken away from others Demosthenes It was decrecd â—…ustice should be done in all these inâ—…uries according to the Laws and not according to every ones lust and pleasure Quintilian The compensation of injury is not only against Law but peace For there is the Law the Court the judge unless one be ashamed to seek a remedy by Law The Emperours Honorius and Theodosius Therefore are judgments
in force and the publick Laws ordained for the protection of men that none may take the liberty to revenge himself King Theodoricus Hence was the sacred reverence of Laws found out that nothing might be done by violent hands nothing by the impulse of a private spirit Howbe it the old natural liberty remains first 〈◊〉 places where are no judgments as on the Sea Whither perhaps may be referrd that act of C. Caesar who being yet a private man pursued the Pirats by whom he had been taken with such a navy as he could provide in hast and partly chased partly sunke their ships and when the Proconsul neglected to do justice upon the captives himself returning to Sea hanged them up The same will have place in deserts or where they live like the Nomades So among the Umbrici Nicolaus Dâ—…mascenus relates every one was his own Avenger which also is done done at this day among the Moscht some time after an address to the judge Nor had Duels and single Combats any other original which before Christianity were used by the German Nations and in some places are not yet enough disused Therefore the Germans in Velleius Paterculus wonder when they beheld the form of the Roman Jurisdiction that they ended injuries by justice that things wont to be decided by arms were determined by Law The Hebrew Law permits the Kinsman of one slain to kill the manslayer without the places of refuge and the Hebrew interpreters do rightly note that such a recompence for the dead may be required by force for one self as in a wound not unless by the judge because moderation is more difficult where a man 's own pain is urgent A like custom of privately revenging slaughter was among the most antient Greeks as appears by Theoclymenes words in Homer But most frequent are the examples hereof amongst them that have not any common judge Hence are just wars desined to be those that revenge injuries as Austin saith and Plato approves of force of arms until they that are in fault be compelled to give satisfaction to the innocent and wronged party LXXXVI The end of punishment is also the profit of All. THe utility of all sorts which was the third end hath the same parts with that which perteins to the wronged person For either this is the intent that he who hath wronged one may not wrong others which is brought to pass by destroying him or by weakning him or by binding him so that he may not be able to hurt or by amending him or lest others encouraged by his impunity be troublesome to any other persons which end is obtained by conspicuous punishments which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Latins exempla which are therefore used that the punishment of one may be the fear of many that by the kind of punishment others may be deterred as the Lawes speak that others may beware and fear as Demosthenes The power also of this Law is in every mans hand naturally Sâ—… Plutarch saith a good man is by nature designd a Magistrate and that perpetuall For by the very Law of Nature he is Prince that doth just things So Tully proves by the example of Nasica that a wise man never is a private man and Horace calls Lollius Consul not of one year Which sayings are nevertheless to be understood in a Commonwealth so far as the Laws thereof do bear Of this natural right Democritus He that 〈◊〉 a Theef or a Robber any way either by his own strength or by command or by suffrage is innocent And †Seneca When I shall command a malefactors head to be cut off I will be of the same mind and countenance as when I smite Serpents and venemous creatures But whereas both the inquisition of the fact often requires great diligence and the estimation of the penalty much of wisedom and equity lest while every one presumed too much of himself others not giving place contentions should arise therefore it pleased the just communities of men to make choice of the best and wisest such as they esteemed so or hoped would prove so The same Democritus The Laws would not have hindred every one to live after his own pleasure unless one had gone about to offend another For envy lays a ground for sedition But as above we said of revenge so in this exemplary punishment some footsteps and reliques of the old right do yet remain in those places and among those persons which are not under certain Jurisdictions and moreover in some excepted cases So by the custems of the Hebrews an Hebrew falling away from God and his Law or misleading any to false worship might presently be slain by any man The Hebrews call it the judgment of zeal which they say was exercised first by Phineas and thence grew into a custom Lo Mattathias killed a certain Jew polluting himself with Greekish rites So three hundred other Jews were slain by their Countrey-men as is related in the book commonly call'd the third of the Maccabees Nor was Stephen stoned upon other pretence or conspiracy made against Paul and many other examples of like sort are extant both in Philo and in Josephus Moreover among many people both to Masters over their servants and Parents over their children remained a full right of punishing them even to death So at Sparta the Ephori might put a Citizen to death without judgment Thus by what we have said may be understood what the right of Nature is touching punishments and how far it hath remained LXXXVII What the Evangelical Law hath constituted about this matter NOw must we consider whether the Evangelical Law hath more narrowly circumscribed that Liberty Surely as we have elswhere spoken it is no wonder that some things which by nature and the Civil Laws are Lawful are forbidden by Divine Law and that most perfect and promising a reward above human nature to the attaining whereof not undeservedly are requir'd vertues that exceed the meer precepts of Nature Castigations which do leave neither infamy nor permanent loss and are necessary in respect of age or other quality if they come from those hands which are permitted by human Laws to inflict them namely Parents Tutors Masters and Teachers have nothing repugnant to the Evangelical Precepts as we may sufficiently conceive by the nature of the thing it self For these are remedies for the mind not less innocent than medicines ungrateful to the sense Of revenge we must have another opinion For as it only exsatiats the mind of the offended person it is so far from agreement with the Gospel that as we have shew'd afore it is even naturally unlawfull But the Hebrew Law not only forbids hatred to be kept against the neighbour that is one of the same nation but also commands certain common benefits to be conferrd upon such enemies Wherefore the name of
that every 〈◊〉 would scape unpunished if it were sufficient in any manner to make profession of repentance God himself doth not always remit all punishment to the penitent as appears even by Davids example Wherefore as God might remit the penalty of the Law that is violent or otherwise immature death and yet inflict no small evils upon the offender so now also may he remit the punishment of eternal death and in the mean time either himself punish the sinner with immature death or be willing he should be so punished by the magistrat LXXXIX Another objection answerd about precision of repentance AGain others find fault that together with life space of repentance is also cut ost But these men are not ignorant that pious Magistrats have great care hereof and appoint not any one to to be executed without some time allowed wherein he may acknowledge his sins and seriously detest them Which kind of repentance though works intercluded by death follow not may be accepted by God as is proved by the example of the Thief crucified with Christ. If it be said a longer life might be profitable to a more serious repentance and amendment it may be answer'd Men are found sometimes such to whom that of Seneca may be spoken justly We will do you all the good that can now be done you 〈◊〉 put you to death And that also of thâ—… same Author There is but one way fâ—… them to cease to be evil that is to ceâ—… to be Likewise said Eusebius the Philosopher This then beside what hath been said in the beginning of our work be answer'd to them who would have either all or capital punishments without any exception forbidden Christians contrary to the Apostles doctrin who having included in the regall office the use of the sword as the exercise of Divine revenge in another place exhorteth to pray that Kings may be made Christians and as Kings be a protection to the innocent This cannot be obtain'd such is the improbity of a great part of men even after the propagation of the Gospel unless the boldness of some be repressed by the death of others and thus too among so many punishments and executions of the guilty innocency is hardly enough secured Nevertheless it is not amiss to propose to the imitation of Christian Rulers at least in some part the example of Sabacon King of Egypt for his piety very famous by whom Capital punishments with most happy success were commuted for tasks and malefactors condemned to work as Diodorus relates and Strabo saith there are some Nations neer Caucasus among whom the greatest offenders received not the sentence of death Nor is that of Quintilian to be despised No man will doubt but if wicked men may by any means be recalled unto a right mind as sometimes it is known they may it is better for the Commonwealth to save than to destroy them Balsamon notes that the Roman Laws which imposed penalty of death were most of them changed by the later Emperours being Christian into other punishments to the end a deeper impression of repentance might be made upon condemned persons and the continuance of the punishment might serve the more for example XC Three Inferences from the former Doctrine OUt of these things last spoken it may be collected how unsafe it is for a private Christian whether for his own or for the publick good to take punishment of any wicked man especially capital though we have said it is sometimes permitted by the Law of Nations Whence the manner of those people is to be commended amongst whom such as go to Sea have commission from the publick Power to pursue Pyrats if they find any that they may use the occasioâ—… given not as by their own adventure be publickly commanded Not unlike 〈◊〉 this is another custom receiv'd in many places that unto criminal accusations are admitted not all that please but certain men upon whom by publick authority that office is imposed that no man may do any thing at all tending to the shedding of anothers blood but by the necessity of his office Hither perteiâ—… the canon of the Eliberan Synod If any believer turn informer and by his accusation any be proscribed or put to deâ—…h Our decree is that he shall not no 〈◊〉 〈◊〉 the end receive Communion Lastly this also is understood by what hath been said that a man truly Christian is not well advised nor doth it become him to affect and thrust himself into publick Offices that have judgment of blood and think and profess it fit that power of life and death over his fellows should be committed to him as most excellent 〈◊〉 all and as it were a God among men For certainly what Christ admonisheth that it is dangerous to judge of others because such judgment as we give must we in like cases expect from God is not impertinent in this place XCI Whether human Laws that permit the killing of some men give the killers a true right before God or only impunity among men THis is a noble question and Covarruvias and Fortunius answer that such Laws give only impunity whose opinion is so displeasing to Ferdinandus Vasquius that he calls it an ungodly opinion No doubt as we have said elswhere the Law may do both in certain cases but whether it will or no is to be understood partly by the words partly by the matter of the Law For if the Law give indulgence to passion it takes away human punishment not the fault as in case a husband kill his Adulterous Wife or the Adulterer But if the Law respect the danger of future evill by delay of punishment it is to be conceived to grant right and publick power to a private man so that now he is not private Of this kind is that Law in Justinians Code under the rubric quando liceat unicuique c. Where every man hath licence given him to oppose force against plundering and pillaging Soldiers this reason being added For it is better to meet with them it time than to seek redress after the injury done We therefore permit you to defend avenge your selves and what is too late punished by judgment we suppress by edict that none spare a Soldier but use his weapon against him 〈◊〉 thief And the subsequent Law aboâ—… desertors saith Let ail men know thâ—… have power given them against publicâ—… robbers and desertors that run from thâ—… colours and all are ministers of publicâ—… revenge for the quiet of all To this purpose is that of Tertullian Against Trâ—…tors and publick enemies every man is a Soldier And herein differs the right 〈◊〉 killing exiles whom they call Banniâ—… from this kind of Laws because there precedes a special sentence here a general Edict the fact being evident obteiâ—… the force of a sentence pronounced XCII What acts are not punishable by men NOw let us see whether
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
posterity of Transgressors were accursed by the Athenian sanction added to Solon's Laws concerning God's Law addeth This doth not like that punish the children and posterity of offenders but every one is the author of his own calamity Pertinent is the Proverb Noxa caput sequitur and that saying of the Christian Emperors Punishment must remain there where the fault is and Let sins light only upon their authors and the fear go no farther than the offense Philo saith It is just that the punishments should rest where the sins do reprehending the custom of some Nations that put to death the innocent Children of Tyrants or Traytors Which custom Dionysius Halicarnassensis reprehendeth also and shews the iniquity of the reason pretended viz. That children will be like their parents for that is uncertain and an uncertain fear ought not to be sufficient for the death of any There was one so bold as to dictate this to Arcadius a Christian Emperor that the children in whom the examples of their Fathers crime are feared should be involved in the fathers punishment and Ammianus relates how the Issue was slain being but very young lest it should grow up after the parents pattern Neither is fear of revenge * a more just cause Nothing is more uniust saith Seneca than that one should inherit his fathers hatred Pausanias the Generall of the Greeks touched not the children of Attaginus author of the Thebans desection to the Medes These saith he had no finger in the plot M. Antonius in a letter to the senate Ye shall pardon the son in law and wife of Avidius Cassius he had conspir'd against him And why do I say pardon when they have done nothing God indeed in the Law given to the Hebrews threatens he will punish the iniquity of the fathers upon the children But He hath a most full right of dominion as over our goods 〈◊〉 over our lives too being his gift which without any cause and at any time he can take away from any one at his pleasure Wherefore if by an immature and violent death he cut off the children of Achan Saul Jeroboam Ahab upon them he uses the right of dominion not of punishment and by the same act punisheth the parents in a more grievous manner For whether they survive which the Divine Law had very much respect unto and therefore extendeth not those threats beyond the children of the third and fourth Generation Exod. 20. because a mans Age may be lengthenâ—… to a sight of them and it is certain the parents are punisht with such a spectaâ—… yea it is more grievous to them thâ—… what they bear in their own persons 〈◊〉 whether they do not live so long yet 〈◊〉 die in that fear is no small punishmâ—… The hardness of the people saith Teâ—…lian brought in a necessity of such reâ—…dies that in contemplation of their postâ—…ty they might frame themselves 〈◊〉 bedience But withall we must note Gâ—… doth not use this more heavy vengeance except against offences committed pâ—…perly to his own dishonour as false 〈◊〉 ships perjurie sacrilege Nor did 〈◊〉 Greeks think otherwise For the crimes which were supposed to make their posterity obnoxious which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are all of that sort upon which argument Plutarch discourseth eloquently in his book of the late Revenge of God Aelian hath an Oracle of Delphi to this effect Inevitable Vengeance from above Falls on the wicked though ally'd to Jove Stil imminent it is o'r them and theirs Successively entail'd upon their Heirs It is spoken there of sacrilege and it â—…s confirmed by the history of the Tholoâ—…ane gold in Strabo and Gellius Like senâ—…ences we had afore of perjury But to proceed though God hath threatned â—…hus yet doth he not always use that â—…ight especially if some eminent vertue â—…hine forth in the Children as we may â—…e Ezech. 18. and is proved by some â—…xamples in the now-cited place of Pluâ—…arch And sith in the new Covenant â—…ore openly than in the old are declaâ—…ed the punishments which remain for â—…e wicked after this life therefore in that Covenant is there no commination exâ—…ant exceeding the persons of the Transâ—…ressors to which purpose though less â—…lainly is that foresaid passage of Ezeâ—…iel Now for Men they may not imitate that vengeance of God nor is the reason alike because as we have said God without intuition of the fault hath right over the life men have not but upsome great crime and such as is the persons own Wherefore that same Divine Law as it forbids parents to be put to death for their children so forbids children to be put to death for the deeds of their parents Which Law pious Kings as we read have foâ—…lowed even in the case of Treason and the same Law is very much praysed by Josephus and Philo as a like Egyptian Law by Isocrates and a Roman Law by Dionysius Halicarnassensis Plato hath a saying which Callistratus the Lawyer expresseth in this sense The crime or punishment of the father can instict no blot upon the son He addes the cause For every one bears that lot which his own doings have drawn for him nor is he made successor of another's crime Cicero saith Would any Commonwealth endure that Law-giver by whose Ordinance the son or grandchild is condemned if the Father or Grandfather be a Delinquent Hence it is that to pâ—… to death a woman with child was accounted a wicked thing in the Laws 〈◊〉 the Egyptians Greeks and Romans Moreover if those human Laws be unjust which do slay the children for tâ—… parents offenses more unjust surely 〈◊〉 the Law of the Persians and Macedorans devoting also and destroying the lives of kinsmen to the end the offenders against the King might fall the more sadly as Curtius speaks a Law saith Ammianus Macellinus that excelled all the Laws in the world in cruelty Notwithstanding all this it is to be noted if children of traitors have any thing or can expect any thing to which they have no proper right but the right is in the people or King that may be taken from them by a certain right of dominion the use whereof yet may redound to the punishment of those that have offended Hither is to be referd that of Plutarch touching the Children of Antiphanes a traitor that they were kept back from honours as at Rome the children of those that were proscrib'd by Sulla So in the foresaid Law of Arcadius that is tolerable for the children Let them not be advanced to any honour nor to any offices What we have said of punishing children for their parents faults may be applyed also to a people truly subject for a people not subject through their own fault that is for their negligence may be punisht as we have said if it be enquir'd whether that people
it was meet that the matter should be ended on this wise 'twixt him and Turnus Certainly among other customs of the ancient Franks this is at large commended by Agathâ—… in his first book whose words are worthy to be added If any Contraversies happen to arise between the Kings they all muster their force's as it were to determine the matter by battell and they march forth into the field But so soon as the Armies have faced each other they lay aside anger and embrace concord perswading their Kings to put their differences to triall of Law or if they will not do that to enter into single combat and bring the matter to an end only with their own danger Because it is neither agreeable to equity nor the orders of their Countrey that they for their proper hatreds should weaken or overthrow the common good Wherefore presently they disband and the causes of their quarels being taken away peace is reestablished and muital security assured So great care of Justice and love of their Country is in the Subjects so gentle and yielding a disposition is in the Kings Now although in a doubtfull case both parts are bound to seek condition whereby war may be avoided yet is he more bound who requireth than he who possesseth For that in an equal case the condition of the possessor is the better is a point not only of the Civil but of the Natural Law And here is further to be noted that War cannot lawfully be undertaken by him who knoweth he hath a just cause but hath not sufficient proofs whereby he may convince the possessor of the injustice of his possession The reason is because he had no right to compell the other to depaâ—… out of his possession And lastly when both the right is ambiguous and neither possesseth or Both equally there he is to be thought unjust who rejecteth the offered division of the thing in conâ—…versy CXIX Whether war may be just on both sides OUt of the premises may be determined that Question agitated by many whether War respect being had of them that are the principal Movers of it may on both sides be just For the various acceptions of the word just are to be distinguished A thing is called just either from the cause or according to the effects From the cause again either in a special acception of justice or in that general use of the word as all rectitude is so called The special acception is agaiâ—… divided into that which perteineth to the work and that which perteineth to the worker For the worker himself sometime may be said to do justly as oft as he doth not unjustly though that which he doth be not just So Aristotle rightly distinguisheth to do unjustly and to do the which is unjust War cannot be on both sides just in the acception special and related to the thing it self as a sute in Law neither because a moral facultie to contraries to wit both to act and to hinder is not granted by nature But that neither of the parties warring may do unjustly is possible for no man doth unjustly but he that also knows he doth an unjust thing and many are ignorant of that So may a sute be followed justly that is with an honest mind on both sides For many things both in point of right and fact whence right ariseth are wont to escape men In a general acception just is wont to be called that which is without all fault of the Doer And many things without right are done without fault through ignorance inevitable An example whereof is in them who observe not the Law which without their fault they are ignorant of after the law it self is promulged and time sufficient by it self for knowledge hath passed So also in Law-sutes it may happen that both parties may be free from injustice and all other blame especially where both parties or either goeth to law not in his own but anothers name to wit by the office of a Tutor or Guardian whose duty is not to desert any right though uncertain So Aristotle saith in contentions of controverted right neither is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wicked With whom Quintilian agrees when he saith it may come to pass that an Orator that is a Good man may plead on both sides Yea Aristotle also saith a Judgâ—… may be said to judge justly two wayes â—…ther when he judgeth plainly as he ougâ—… or when he judgeth according to 〈◊〉 judgment conscience And in anotheâ—… place If one hath judged through igâ—…rance he hath not done unjustly Nevertheless in war it can hardly fall out be there will be at least some temerity and defect of love by reason of the weight of this business which in very deed is sâ—… great that not content with probabâ—… causes it requireth grounds most evidenâ—… But if we take just according to some effects of right it is certain war on bâ—… sides may be just in this sense as will appear by what we shall say of publick â—…lemn war in the next part And in like manner a Sentence not given according to right and Possession without right have some effects of right CXX ADMONITIONS For the eschewing of War Right is often to be remitted THough it seemeth not properly a paâ—… of our work our Title being of thâ—… Right of war to declare what other vertues give in charge concerning it neveâ—…theless on the By we must meet 〈◊〉 this errour of such as think where 〈◊〉 Right is manifest enough war presenâ—…y either must or alwayes may lawfully be undertaken For the contrary is true that for the most part it is more pious and honest to depart from ones right That we may honestly forsake the care even of our own life that we may provide as much as lies in us for the eternal life and salvation of another hath been shewed afore Which is especially the duty of Christians therein imitating the most perfect example of Christ who dyed for us while we were his enemies This doth much more excite us not to pursue our worldly interests with so much hurt of other men as Wars do carry with them That for every such cause war is not to be waged even Aristotle and Polybius do advise Nor was Hercules commended by the Antiens for commencing war against Laomedon and Augias because they paid him not for his labour Dion Prusaeensis in that Oration which is of War and Peace saith it is not only enquir'd whether They against whom we intend war have done us injury but whether the injury be of such moment that it may deserve a war CXXI Punitive right especially is to be remitted TO omit punishments many things do exhort us Consider how many faults Fathers connive at in their Children Whereof Cicero hath a dissertation in Dion Cassius A Father saith Seâ—…ca except many and great offenses have overcome his patience except he hath more to
Belus's Temple â—…t Babylon But we have a more proper example in the Thebaean Legion of which â—…bove and in Julian's soldiers of whom Ambrose thus Julian the Emperour though an Apostate had under him Christian soldiers whom when he Commanded â—…o Draw out in defense of the Common-wealth they obeyed him But when he said Use your arms against the Christians then did they acknowledge the Emperour of Heaven So we read of certain Spearmen converted unto Christ that they chose rather to dy than to execute the Edicts judgments against the Christians 'T will be all one if a man be perswaded it is unjust which is commanded For that thing is to him unlawfull so long as he cannot put off that opinion as appeares by what we have said already CXXXVI What they should do when they are in doubt BUt if a man doubt whether the thing be lawfull or no must he then obey or not Most Authors are of opinion that he must obey nor doth that hinder Dâ—… not what you doubt of because say they he that doubts contemplatively may in his active judgment be out of doubt For he may believe that in a doubtfull matter he ought to obey his superiour And truly it cannot be denyed but this dissection of a twofold judgment hath place in many actions The Civil Laws not of the Romans only but of other Nations iâ—… such a circumstance do not only graâ—… Impurity to those that obey but also deny any Civil action against them He doth the damage say they who commands it to be done and he who must needs obey is in no fault Necessity of the power excuseth the like Aristotle himself in the fist his Ethicks among those that do something unjust but not unjustly annumerates the servant of a Master commanding and he saith He doth unjustly from whom the action takes beginning upon this ground because the faculty deliberative is not full according to that verse Those men enjoy but one half of their soul Whom their imp r ous Masters words controul And that of Tacitus The Gods have given the Prince supreme judgment of things to sub ects is left the glory of obedience Piso's son in the same writer was by Tiberius absolv'd from the crime of the Civil war Because the son was not able to reject the commands of the Father Seneca A servant is not a Censurer but a minister of his Masters will And specially in this question of warfare Augastin thought so for so he speaketh A just man if perhaps he serveth under a secrilegious King may rightly fight at his command if keeping civil order he be either sure what is commanded him is not against the Command of God or be 〈◊〉 sure that it is so that perhaps the King may be guilty of iniquity in his command but the soldier innocent in his obedient The like he saith in other places And hence it is a common received opinion that as to subjects a war may be on both sides just that is without injustice Yet this is not without its difficulty And our Countryman Adrian who waste last Bishop of Rome of the Cisalpins defends the contrary opinion which may be confirmed not by that reason precisely that he brings but by this which is 〈◊〉 urgent Because he that doubts contemplatively ought by his active judgmenta chuse the safer part And it is the 〈◊〉 part to abstein from war The Essens 〈◊〉 commended for swearing among other things That they would never do any erâ—… harm no not if they were commanded And their Imitators the Pythagoreans who as Jamblicus testifies absteined from war adding this for the reason because is so bloody Nor is it any material objection that on the other side there is dâ—… ger of inobedience For when Both are uncertain for if the war is unjust then in avoiding thereof is no inobedience that is faultless which of the two is less Now inobedience in such matters is of its own nature less evill than homicide and slaughter especially of many Innocents The Antients tell how Mercury being accus'd for killing Argus at the command of Jupiter defended himself and yet the Gods durst not absolve him Nor is it of great weight which some bring on the contrary That it will come to pass if that be admitted that the Commonwealth will be oft undone because it is not expedient for the most part the reasons of Counsel's should be published and made known to the people For grant this to be tâ—…ue concerning the suasory causes of war it is not true of the justifick which must be clear and evident and therefore such as may and ought to be openly declared And thus do some learned men interthat in Genesis 14. 14. to this sense that Abrahams servants before the battell were fully instructed by him concerning the Justice of his arms Certainly denuntiations as we shall shew hereafter were wont to be made openly and the cause exprest that all mankind as iâ—… were might examin and know the justice of it Prudence indeed is a vertue as it seemed to Aristotle proper to Governors but Justice to man as he is man Now in my judgment that opinion of Adrian is clearly to be followed if the subject not only be in doubt but is induc'd by probable Arguments and inclined rather to believe that the war is unjust especially if it be not defensive but offensive And so it is probable that the Executioner of a man condemned either by his presence at the Tryall or by the confession of the party ought so far to understand the case that he may be afraid he hath deserved death which in 〈◊〉 paces is the custome and the Hebrew Law looks this way when in the stâ—…ning of one condemned it requires the witnesses to go before the people CXXXVII Such are to be dispensed with upon payment of extraordinary Tribute MOreover if the mindes of the Subjects cannot be satisfyed by Declaration of the cause it will certainly be the office of a good Magistrat rather to impose upon them double Contribution than military service especially when there are not wanting enow Voluntiers to serve Whose will not only good but evil too a just King may use as God doth use the ready service of the Devil and wicked men and as he is without fault who being in need of money takes it up at hard rates from an oppressing Usurer Yea further if there can be no doubt made about the Cause of the war nevertheless it seemeth to be much against equity that Christians against their wills should be compell'd and prest Souldiers seeing to abstein from war even when it is lawfull to wage it is a point of greater sanctity which was exacted both of Clergy-men and Penitents and to all other persons many wayes commended Origen to Celsus objecting against the Christians that they declined war
as the Scholiast upon Thucydides observes And other Nations living also upon the spoil when they were come home from Sea sent unto the owners to redeem if they pleased at an equal rate what they were robbed of as Strabo saith Now the principal in moral matters is instead of the form and as it is rightly said by Cicero and Galen The denomination is given from the greater part Wherefore the same Cicero speaketh too crudely saying in his third De Republicâ where is an unjust King or unjust Senators or an unjust people there is not now a vitious but no Common-wealth Which sentence S. Augustiu correcting saith Yet I shal not therefore conclude it to be no people nor Common-wealth so long as there remaineth a rational multitude joyned together in a sociable Communion of things which they love A diseased body is nevertheless a body and a City though very sick is a City as long as Laws remain Courts of Justice remain and other things necessary that foreiners may there obtain right as well as private men among themselves Better spake Dion Chrysostom who said the Law that especially which makes the right of Nations is in a Common-wealth as the soul in the body of man which being taken away 't is no longer a Commonwealth And Aristides in that Oration wherein he exhorts the Rhodians to concord shews that many good Laws may consist even with Tyranny Now although there be so great a difference between a people how wicked soever and them that being not a people come together for wickedness yet may a change happen not only in single persons as Jephtha Arsaces Viriatus of Captains of Robbers became just Captains but in companies also as they that were only Robbers embracing another kind of life may become a Common-wealth Moreover who they are that have the Highest power we have said above whence it may also be understood If any have it in part for that part they may wage a just war and much more they who are not subjects but unequally confederate as between the Romans and their Fellows though inferiour in League the Volscians Latins Spaniards Carthagenians all things of a just War were exercised as the Histories inform us But that war may be just in this sense it sufficeth not that it be waged between Highest powers on both sides but it is requisite as we have heard that it be publickly decreed and truly so decreed publickly that the signification thereof be made by the one party to the other whence Ennius calls them promulgata pralia promulged battells It is a just war which is waged by edict saith an antient writer in Isidore things being requir'd or for resistance of Enemies and Livy put it in the description of a just war that it be commenced with an Edict and in an open manner XXI In denouncing war what is of the Law of Nature what proper to the Law of Nations FOr the understanding of the places last cited and other like about the promulgation of war we must accurately distinguish what things are due by the Law of Nature what by nature are not due but honest what things by the Law of Nations are requir'd to the proper effects of the same Law and what proceed from the peculiar institutes of some Nations By Natural Law where either force offerd is repelled or punishment exacted of one that hath offended no denuntiation is required there And this is that which Stenelaidas the Ephor saith in Thucydides We must not stand debating with words and arguments being iniur'd beyond words And Latinus in Halicarnassensis He that is assaulted with 〈◊〉 is wont to repell his enemy And Aelin out of Plato saith War undertaken to resist violence is indicted not by an Herall but by nature Hence Dion Chrysolm affirms Most wars are made without proclamation And for no other cause Livy objects to Menippus prefect of Antioch that he had slain certain Romans waâ—… being neither proclam'd nor so begun that they had heard of swords or any blood as yet drawn thereby shewing either of these two might suffice for a defense of his deed Neither is Indiction more necessary by the Law of Nature if a Lord will lay hands upon his own goods But as oft as one thing is invaded for another or the debtor's goods for the debt and much more if one will seise upon the goods of them that are subject to the debtor Interpellation is required whereby it may appear we had no other way to come to our own or that which is due unto us For that right is not primary but secondary and surrogate So also before the Supreme Governour may be invaded by war for the debt or the offense of the subject there ought to intercede an Interpellation that may constitute him in a fault whereby he may be esteemed to do a dammage or to be delinquent according to what we have discoursed above Yet further where the Law of Nature commandeth not such an interpellation to be made it is honestly and commendably interposed to wit that the adverse party may abstein from offending any more or the offense given may be expiated by repentance and satisfaction according to what we have said of using means to avoid war Pertinent here is that Precept which God gave unto the Hebrews that they should make offer of Peace to the City that was to be assaulted which precept being specially given to that people is by some ill confounded with the Law of Nations Nor indeed was that any other peace but 〈◊〉 condition of subjection and Tribute Cyrus when he had marched into the Armenians Country before he did hurt any man sent Messengers to the King to demand Tribute due upon the League and soldiers Supposing that to be more friendly and courteous than to lead on farther and sâ—…r nothing As Xenophon speaks in that History But by the Law of Nations to those peculiar effects in all cases is requir'd denuntiation not on both but on the one party This denuntiation is either Conditionate or Pure Conditionate where it is join'd with Remanding of Things And in the name of Res reperitae the Heralds Law comprehended not only vindication by right of dominion but also the prosecution of that which is due upon a Civil or Criminal cause as Servius explains it rightly Thence was that in the forms To be rendred To be satisfyed To be yielded Where To be yielded as we have said elswhere is to be understood unless they that are call'd upon will rather punish the guilty themselves This requiring of Things Plixy testifies was named Clarigation That denuntiation in Livy is conditionate That they will with all their power depell that injury except it be remedied by those that did it And in Tacitus Unless they specdily bring the offenders to punishment He will make promiscuous slaughter Pure denuntiation
and to have taken from them much spoil this reason being added because they called upon God in the war and God had heard them graciously As also that pious King Asa is said after prayer to God to have gotten both victory and spoil of the Ethiopians that provoked him by unjust war which is the more to be observed because those arms were taken not by special mandate but by common right And Joshua encouraging the said Reubenites Gadites and Manassites saith Be ye partakers of the spoil of the enemies together with your brethren And David when he sent of the spoils gotten from the Amalikites to the Elders of the Hebrews addeth in commendation of his present Behold this is a Gift for you of the spoil of the Lord's enemies For verily as Seneca saith it is the glory of military men to enrich one with the enemie's spoils And there are extant divine Laws about dividing the spoil Numb 31. 27. And Philo saith it is among the Threats of the Law that the field should be reaped by their enemies whence would follow their own famine and their enemies plenty But by the Law of Nations not only he that wageth war on a just cause but every one in solemn War and without end and measure is made Master of all he takes from the enemy in that sense that by all Nations both himself and they that have Title from him are to be maintained in the possession of such things Which as to external effects we may call Dominion Cyrus in Xenophon It is an everlasting Law among men that the enemies City being taken their goods and money should be the Conquerors Plato said The Conquerors get all that the Conquer'd had who in another place among the kinds of acquisition that are as 't were natural puts the Polemical for one having therein the assent of the forecited Xenophon in whom Socrates by interrogations brings Euthydemus to a consession that 't is not always unjust to spoil namely an enemy Aristotle also saith The Law is as a common agreement wherby the things taken in War become the Takers Philip in his Epistle to the Athemans We all do hold Towns left us by our Ancestors or gotten by the Law of War Aeschines If in War made against us you have taken the City by the Law of War you possess it rightly Marcellus in Livy saith what he took from the Syracusians he took away by the same Law Things taken from the enemies presently become theirs that take them by the Law of Nations saith Caius the Lawyer Theophilus in the Greek Institutions calls this acquisition Natural for not any cause but the naked fact is considered and thence a right springeth as also Nerva the son the Lawyer Paulus reporting it said the dominion of things began from natural possession and some print thereof remains in the things taken in the Land the Sea the Air and in things taken in War all which instantly become theirs who first laid hold on the possession From the enemy are judged to be taken away those things also which are taken away from the subjects of the enemy So Dercyllides argueth in Xenophon when Pharnabazus was the enemy of the Lacedemonians and Mania subject to Pharnabazus the Goods of Mania were in such a case that they might be rightly seized on by the Law of War XXXVII When Movable Goods are by the Law of Nations judged Taken When Lands MOreover in this question of War it hath pleased the Nations that he may be understood to have taken a thing who so deteins it that the other hath lost all probable hope of recovery that the thing hath escaped pursuance as Pomponius speaketh in a like question And this so proceeds in movable goods that they are said Taken when they are brought within the bounds that is the guards of the enemy For in the same manner a thing is lost as it returns by Postliminium It returns when it comes within the bounds of Empire i. e. within the guards And Paulus saith plainly of a man that he is lost when he is gone beyond our bounds and Pomponius interprets him Taken in War whom the enemies have taken out of ours and brought within their own guards for before he is brought into their guards he remains a Citizen Now in this Law of Nations there was the same reason of a man and of a thing Whence it is easy to be conceived that elswhere things taken are said presently to become the Takers ought to be understood with some condition to wit of continuing the possession so far whence it seemeth to follow that on the Sea ships and other things may then be thought taken when they are carried away into the Haven or the place where the Navy lies For then the recovery seems to begin to be past hope But by the newer Law of Nations among the people of Europe we see 't is introduc'd that such things are supposed taken when they have been in the enemies power for the space of four and twenty hours As for Lands or Fields they are not conceiv'd presently to be taken so soon as they are sate upon For though it be true that that part of the field which an Army hath entred with great force is for the time possessed by it as Celsus hath noted Yet as to that effect which we speak of every possession is not sufficient but a firm possession is requir'd Wherefore the Romans were so far from judging the field which Annibal encamped in without the Gate to be lost that at the very same time it was valued at the same price it was sold before That field then will be supposed taken which is so included with lasting fortifications that without overcoming them the other party can have no access Whence it is a very probable derivation of the word Territory from terrifying the enemies So Xenophon saith the possession of land in the time of War is reteined by Forts or muniments XXXVIII Things that are not the enemies are not acquir'd by war Of Goods found in the Enemies Ships ANd this is manifest that a thing may be made ours by the Law of war 't is requir'd that it have been the enemies For things that are with the enemies that is in their Towns or within their guards but whose Owners are neither the enemies subjects nor of an hostile mind those things cannot be acquir'd by war as appears among other arguments by that saying of Aeschines that Amphipolis a City of the Athenians by the war of Philip against the Amphipolitans could not become his For both Reason faileth and this Right of changing Dominion by force is so odious that it is not fit to be produced Wherefore what is wont to be said that the Goods are the enemies which are found in the Enemies ships ought not to be so understood as if it were a certain Rule of
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An ancient learned Book of the Law called Britton FINIS †Sic enim Theoc'ymenem compellari facit Nam turpe id essct cum scias hominum ac Deûm Quod est eritque justa te haud cognoscere * Thucyd. l. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Likewise in the first Book the Athenians being at that time in their pride say thus to the Melians Humane reason judgeth those things just which are necessary and things possible to be done are done by the mighty and suffered by the weak †Ennius Non ex jure manu consertum sed magè ferro Rem repetunt Horatius de Achille Jura negat sibi nata nibil non arrogat armis Alius de alio Hic paceÌ„ temerataque jura relinguo †In Plutarch Lysander shewing his sword saith He that hath this in his hand best disâ—…utes of the bounds of his dominion And Caesar in the same Author Laws have no place in the time of war And Seneca saith Princes in war especially give with their eyes shut One man cannot satisfie so many armed usts nor can he at the same time act the good Man and the good General De ben lib. 4. c. 38. †Plutarch relates this saying of Pompey to the Momentines thus Will you never leave prating of the Laws to us that wear Swordâ—… Curtius lib. 9. So doth war overthrow even the Laws of Nature * Terent. Incerta haec sâ—…tu postules Ratione certa facere nihilo plus agas Quam si des operam ut cum ratione insanias * Nec natura potest justo secerâ—…re bonestum †Chrysostom on the Rom. Hom. 30. saith we men have by nature society with men What else 〈◊〉 when even the Beasts have so too See the same Father in the 1. Ch. to the Eph. where he shews that we have given unto us by nature the seeds of virtues Marc. Antoninus that Philosopher in the Throne It hath appeared that we are born for Society Is it not plain worser things are ordained for the Better and the better for one another * It is an old Proverb A Dog eats no Dogs-flesh Juven Tigris agit rabida cum Tigride pacem Parcit cognatis maculis sera Philo hath an excellent passage upon the fift Command Be you Men imitators of the mute Creatures They are taught to requite benefits c. See Porphyry de non esu animal 3. of the exceeding care of Doves about their young ones †Mar. Antonin l. 9. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And he saith One may more easily find a thing of an earthly nature