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
unjust that he should be guiltless who slew the man-slayer This after Courts of Justice were established was upon very great reasons restrained to the Judges only yet so that some Print of the former custom was seen even after Moses Law in his right who was the next Kinsman to the person slain We have no mean Author to countenance our interpretation Abraham who being not ignorant of the Law given to Noah took arms against the four Kings not doubting but his enterprize was very reconcilable with that Law And Moses too gave order that the Amalekites violence should be withstood by Arms using the right of nature for it appears not that God was consulted with in this Moreover capitall punishments it appears were used not against man-slayers only but other Malefactors and that as well among the holy people as other nations By the aid of naturall reason having some ground to make conjecture of the divine will they proceeded from like to like and collected that the constitution against the man-slayer might extend also to other notorious and great offenders For some things there are equall unto life as reputation virginall chastity conjugall fidelity or without which life cannot be secure as reverence to authority whereby society is preserved Offenders against these seem no better than man-slayers Hither pertains an old tradition extant among the Hebrews that more Laws were given unto Noah's Sons by God but Moses did not relate them all because it was sufficient for his purpose that they were after comprehended in the peculiar Law of the Hebrews so against incestuous Marriage there was extant an old Law though not remembred by Moses in its place as appears Levit. 18. And among the Laws God gave to Noah's children this also they say was decreed that not only homicides but adulteries incests and rapes should be punished with death which is confirmed by the words of Job Also the Law given by Moses addes unto the capitall sanctions reasons that are of no less value among others then among the Hebrew people peculiarly it is said of homicide that the earth cannot be purged but by the blood-shed of the man-slayer Besides it is absurd to think the Hebrew people were allowed to secure their Government and the publick and private safety by capitall punishments and to bear Arms for their own defence but other Kings and Nations at the same time were not allowed to do so and yet were never admonisht by the Prophets for using capital punishments and making VVar as they were oft reprov'd for other sins Yea on the contrary who would not believe seeing Moses Judicial Law is an express of the divine pleasure other Nations who would take a Copy thence did well and wisely as it is probable the Greeks especially the Athenians did whence there is so great similitude in the old Attick Law and the of-spring thereof the Roman of the 12. Tables with the Hebrew Laws This is enough to shew that the Law given to Noah is not of such a sense as they would have it who impugn all VVars by that Argument XIII Of the Gospel-Law THe objections against VVar taken out of the Gospel have a greater shew in the examination whereof I will not say with many that in the Gospel beside the precepts of Faith and the Sacraments nothing else is found but what is of Natural Law for as most understand this it is not true This I willingly acknowledge in the Gospel nothing is commanded us which hath not a natural honesty and comeliness but that we are not further obliged by the Laws of Christ than we are by natural Law I cannot grant It is marvellous to see what pains they take why are in the other opinion to proove the things forbidden by the Law of Nature which by the Gospel are made unlawfull such as are concubinacy divorce prolygamy Things indeed of such nature that to abstain from them reason it self tells us is more honest and becomming Yet not such as contain in them set the divine Law aside any apparent wickedness And who can say nature hath bound us to that which the Christian Law gives in precept to lay down our lives for the brethren It is a saying of Justin Martyr To live according to nature is his duty whâ—… hath not yet attained to the Faith of Christ. Neither will I follow their conjecture who suppose Christ in his Sermon on the Mount was only an Interpreter of Moses Law These words of his so oft repeated have another sound Ye have heard that it hath been said to them of old but I say unto you Which opposition and the Syriack and other versions proove the truth of that reading to them not by them of old Those of old or the antients were no other than they that liv'd in Moses time for the commands rehearsed as spoken to the antients are not the sayings of the Lawyers but of Moses either word for word or at lest in sense Thou shalt not kill Whosoever shall kill shall be in danger of judgement Thou shalt not commit adultry Whosoever shall put away his Wife let him give her a writing of divorcement Thou shalt not forswear thy self but shalt perform unto the Lord thine oaths An eye for an eye and a tooth for a tooth understand thou mayst require in the Court of judgement Thou shalt love thy neighbour i. e. the Israelite and hate thine enemy i. e. the seven Nations to whom they might not shew friendship nor pitty to these the Amalekits are to be added against whom the Hebrews are commanded to have VVar for ever But to understand the words of Christ we must note that the Law given by Moses may be taken two ways according to what it hath common with other Laws made by men restraining the greater offences with fear of open punishments and hereby containing the Hebrew people in the state of civil society in which sense it is called the Law of a carnal Commandement and the Law of Works Or according to what is proper to the divine Law as it requires also purity of mind and some acts which may be omitted without temporall punishment in which sense it is called a spiritual Law re oycing the heart Now the Lawyers and Pharisees contenting themselves with the formâ—… part neglected the second which is the better part nor did they inculcate it into the people The truth of this appears not only in our Books but in Josephus also and the Hebrew Masters Moreover as to this second part we must know the vertues exacted at the hands of Christians are either commended or commanded to the Hebrews also but surely not commanded in the same degree and latitude as they are to Christians In both senses Christ opposes his precepts to the old ones whence it is manifest his words contain more than a naked Interpretation The knowledge whereof
God to stand to his oath An example hereof is in him who by unjust fear gave cause to a sworn promise For he attains no right or such as he ought to render upon this ground that he gave cause to the loss So we see the Hebrew Kings both reproved by the Prophets and punished by God because they kept not their faith sworn to the Babylonian Kings Cicero commends the Tribune Pomponius who performed what being compell'd by terrour he had sworn So much saith he in those times did an oath prevail Wherefore it was not only the duty of Regulus to return to prison how unjust soe'r it was but of those ten also whom Cicero mentions to return to Annibal for they were obliged by their oath XXXIX Of an oath to a Pirate or to a Tyrant NOr is it thus only among publick enemies but among all For the person alone to whom we swear is not respected but He by whom we swear God who sufficeth to create an obligation Cicero therefore is to be rejected when he saith it is no perjury if the price promised for life be not brought unto Robbers because a Pirate is not a determinate but a common enemy of all with whom we ought to have no society either of faith or oath Which is also said by him elsewhere of a tyrant and by Brutus in Appian With a tyrant the Romans have no faith no Religion of an oath But as in the constituted Law of Nations it is true and shall be shewed hereafter that an enemy differs from a Pirate so cannot that difference have place here where though the right of the person is deficient God is concernd for which reason an oath is called by the name of a vow Besides it is not true which Cicero assumes that there is no society of right with a Robber For 't was well answerd by Tryphoninus that a thing deposited is to restored to a thief by the very Law of Nations if the owner thereof appear not Wherefore I cannot allow that which is deliverd by some that he who hath promised some thing to a Robber may satisfy his conscience with a momentaneous payment so that it may be lawfull for him to recover what he hath payd For the words in an oath as to God are to be understood most simply and with effect And therefore he that returned secretly to the enemy and again departed made not good his oath concerning his return as it was rightly judged by the Roman Senate XL. Of an oath to one that is perfidious BUt that of Accius T. Thou hast brokeis thy faith A. Which I neither gave nor give to any one that is unfaithfull may be allowed of in this sense if the sworn promise had openly respect unto another promise which was as it were an implicit condition to it not if the promises be of divers kind and without mutuall respect For then must every one keep that which himself hath sworn And upon this ground Regulus is praised by this compellation of the Poet Thy Memory is lasting thy Fame grow'th 'Cause to th' unfaithful thou hast kept thy oath The Psalmist where he enumerates the vertues of a good man addes this Having sworn to his own hurt he changeth not XLI Of the Heirs obligation HEre is to be noted whensoever the person hath no right by reason of some such defect which we have said but the obligation is to God in this case the Heir of him that hath sworn is not bound Because as goods pass to the Heir that is such goods as are in the commerce of men so do the burdens accompanying the goods pass with them and not other things which one oweth out of the duty of piety favour or faith For these do not pertein to that which is strictly called right among men XLII Two cases wherein the obligation ceaseth BUt also where the person hath a right if yet the oath regard the utility of any one and he refuseth it he that hath sworn shall not be bound Neither shall he be bound if the quality ceaseth under which he hath sworn to any as if a Magistrate cease to be a magistrate Curio in Caesar †to those that had been the soldiers of Domitius speaks thus How could he hold you bound by oath when having cast away his authority and left his command being a private man and a captive himself was come under the power of another And after he saith the oath was voided by the loss of his place XLIII Of that which is done against ones oath IT is a question whether that which is done against ones oath be unlawfull only or also void Of which I think we must distinguish thus that if ones faith be onely engag'd the act done against oath is valid namely a testament or sale not valid if the oath be so conceiv'd that withall it conteins a full abdication of power to that act XLIV What Superiours can do about the oaths of their subjects THe acts of Superiours cannot so far prevail that an oath so far as it was truly obligatory is not to be performed for that is of naturall and divine right But because our acts are not fully in our own power but so that they depend upon our Superiours therefore may there be a twofold act of Superiours about that which is sworn the one directed upon the person of him that swears the other upon the person to whom he swears Upon the person of him that swears it may be directed either before the oath is taken by making such oath void in as much as the right of the inferiour is conteind under the power of the superiour or after the oath is taken by forbidding it to be fulfill'd For an Inferiour as Inferiour could not bind himself but so far as it should please his Superiour for he had not more ample power Thus by the Hebrew Law Husbands made void the Oaths of their Wives Fathers of their Children which were not yet in their own power Seneca proposes this question What if a Law be made that none shall do that which I have promised my Friend I will do and answers The same Law defends me which forbids me But the act also may be mixt of both as if the Superiour ordain what the Inferiour shall swear in this or that case namely out of fear or weakness of judgement shall be of force if it be approved by him And upon this ground may be defended those absolutions of oaths which of old were exercis'd by Princes and are now by the will of Princes exercis'd by the Prelates of the Church for the better securing of piety Upon the person of him to whom one swears the act may be directed by taking away from him the right which he hath gotten or also if he have no right by forbidding his emolument out of such an oath
by the same Alexander this is the judgment of Curtius Had these things been done against the Authors of the treason it would not seem cruelty but a just revenge Now the Children pay for the fault of their forefathers when as they were so far from betraying Miletum to Xerxes that they never saw the place Like unto this is the judgment of Arrian in another place about the burning of Persepolis in revenge of what the Persians had done at Athens To me Alexander seemeth to have done unwisely for this was no true revenge upon those Persians who were dead before That of Agathocles is ridiculous to every man who answererd the Ithacenses complaining of their damages and told them that the Sicilians had once sufferd more from Ulysses And Plutarch in his book against Herodotus saith it is not probable the Corinthians would revenge the injury received from the Samians after three generations Nor is it a sufficient defense of such deeds which we read in Plutarch of the late revenge of God For the right of God is one thing and the right of men another as we shall shew presently Neither if it be just that children should receive honours and rewards for their Fathers good deeds is it therefore just that they should be punisht for their evil For such is the matter of a benefit that it may be without injury conferr'd on any not so of punishment CXII Whether the punishment may pass without Communication of the fault Two distinctions here needfull WE have spoken of the ways whereby community of punishment happens from community of fault It remains that we see whether the fault being not communicated the punishment may For the right understanding whereof and that things really distinct may not be confounded by likeness of words we must note first that the loss directly given and by consequence are to be distinguished Directly given I call that whereby somewhat is taken away from one to which he hath a proper right By consequence that whereby it comes to pass that one hath not what otherwise he should have had to wit the condition ceasing without which he had not right An example is in Ulpian If I have opened a Well in my grouod whereby it hath happened that the veins coming to you are cut off He saith my work hath not done damage to you in that wherein I have used my own right And elswhere he saith there is much difference 'twixt bearing damage and being depriv'd of the gain which hitherto one hath received And Paulus the Lawyer saith It is preposterous to be said masters of riches before we have gotten them So the parents goods being confiscate the children truly feel the incommodity but it is not properly punishment because those goods were not to be theirs unless preserved by the parents to their last breath Which is rightly noted by Alphenus when he saith By the Fathers punishment the children lose that which should descend from him to them but those things remain entire which were given not By the Father but by nature or some other way So Cicero writeth that the children of Themistocles were in want nor thinks he it unjust that the children of Lepidus should bear the same calamity And that he saith is old and of all Cities To which custom yet the later Roman Laws added much temperament So when by the fault of the major part which as we have said susteins the person of the whole the whole is in the fault and for the same loseth Civil liberty walls and other things the particulars who are innocent do also bear the loss but in that thing which perteined not to them but by the whole Secondly we must note some evil is sometimes imposd upon one or some good is taken away by occasion indeed of some fault yet not so that the fault is the immediate cause of that action as to the right of doing So he who by occasion of anothers debt hath engaged himself suffers evil but the immediate cause of his obligation is his promise For as he who is become surety for a Buyer is not properly bound by the bargain but by his promise so also he who is bound for a delinquent is not held by the delinquency but by his engagement And hence it is that the evil to be born by him receives its measure not from the fault of the other but from the power which himself had in promising Consequent whereunto is this that according to the opinion which we believe to be the truer no man can by his becoming surety lose his life because we determine No man hath such right over his own life that he can take it from himself or engage it to be taken away by another though the antient Romans and Greeks were of another mind in this matter and therefore thought sureties were bound over to capital judgment as it is in a verse of Ausonius and appears by the famous history of Damon and Pythias and also often put Hostages to death as we will relate elswhere What we have said of life ought to be understood of members too for a man hath not right over them but for preservation of the body Now if exile if loss of money were in the promise and by the others fault the forfeiture was made the surety shall bear the loss which yet in him to speak exactly will not be a punishment The like is also in that right which one hath depending upon the will of another as the right of that which is precarious respect being had to the dominion of the things and the right of private men respect being had to the eminent dominion which the Common-wealth hath for the publick good For if some such be taken from one by occasion of anothers fault punishment is not properly therein but execution of an antecedent right in the Taker So because Beasts are not properly guilty of a fault when a beast is put to death as in the Law of Moses for copulation with man that is not truly punishment but the use of mans dominion over the beast CXII None is justly punisht in propriety of speech for anothers fault THese distinctions premis'd we shall say None free from the fault can be punisht for the fault of another The true reason whereof is not that alleged by Paulus the Lawyer that punishments are constituted for the amendment of men for it seems an example may be given without the person of the offender yet in that person that is neer him as shall be said presently but because obligation to punishment ariseth from merit and merit is personal having its original from the will than which nothing is more ours whence it is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hierom saith Neither are the virtues nor the vices of parents imputed to their children Augustin God himself should be unjust if he should condemn any one guiltless Dion Chrysostom when he had said the
deceits to the Carthaginians and Greeks who accounted it more glorious to ensnare the enemy than to beat him And then they added At present perhaps Deceit may be more profitable than valour but a perpetual victory is obteined over his mind who is forc'd to a confession that he is overcome neither by art nor chance but by plain battell in a just and pious war And in after-times we read in Tacitus That the Romans were wont to revenge themselves of their enemies not by fraud not secretly but openly and in arms Such also were the Tibarens who did agree with the enemy about the place and time of battell And Mardonius in Herodotus saith the same of the Grecians in his time XV. It is not lawful to make a traitor it is to use him LAstly to the manner of acting this is pertinent Whatsoever is not lawful for any one to do to impell or solâ—…cite him to do it is not lawful neither For example It is not lawfull for a subject to kill his King nor to yield up Towns without publick Counsell nor to spoil the Citizens To these things therefore it is not lawfull to tempt a subject that remaineth such For always he that gives cause of sinning to another sins also himself Nor may any reply that to Him who impelleth such a man to a wicked act that act namely the killing of his enemy is lawfull He may indeed lawfully do it but not in that manneer Augustin well It is all one whether your self commit a sin or set another to do it for you It is another thing if to effect a matter lawful for him one use the offerd service of a man sinning without any other impulse but his own That this is not unjust we have proved elswhere by the example of God himself We receive a fugitive by the Law of War saith Celsus that is It is not against the Law of War to admit him who having deserted the enemies part electeth ours XVI Goods of Subjects bound for the Rulers debt Naturally none is bound by anothers deed but the Heir LEt us come to those things which descend from the Law of Nations They belong partly to every war partly to a certain kind of war Let us begin with generals By the meer Law of nature no man is bound by anothers act but the successor of his goods for that Goods should pass with their burthens was introduced together with the dominion of things The Emperor Zeno saith It is contrary to natural equity that any should be molested for other mens debts Hence the Titles in the Roman Law That neither the wife be sued for the Husband nor the husband for the Wife nor the Son for the Father nor the Father or Mother for the Son Nor do particular men owe that which the Community owes as Ulpian hath it plainly to wit if the Community hath any Goods for otherwise particulars are bound as they are a part of the whole Seneca If one lend my Country mony I will not call my self his debtor yet will I pay my share He had said afore Being one of the people I will 〈◊〉 pay as for my self but contribute as for 〈◊〉 Country And Every one will owe not 〈◊〉 a proper debt but as a part of the publick Hence it was specially constituted by the Roman Law that none of the Villagers should be tyed for the other debts of Villagers and elswhere no possession of any man is charged with the debts of others no not with the publick debts and in the Novell of Justinian Pignorations for others are prohibited the cause being added that it is against reason for one to be charged with anothers debt where also such exactions are called odions And King Theodoricus in Cassiodore calls this Pignoration of one for another a wicked licence XVII By the Law of Nations Subjects are tied for the debts of the Ruler ALthough these things be true yet by the voluntary Law of Nations it might by induced and it appears to have been induced that for that which any Civil Society or the head thereof ought to make good either by it self primarily or because in anothers debt it hath also made it self lyable by not doing right for that I say are tyed and bound all corporal and incorporal Goods of them that are subject to the same society or head And it was a certain necessity that effected this because without this great licence would be given to the doing of injuries seeing the Goods of Rulers oftentimes cannot so easily come to hand as of private men who are more This then is among those Laws which Justinian saith were constituted by the Nations upon the urgency of human needs Howbeit this is not so repugnant to nature that it could not be induced by custome and tacit consent when even without any cause sureties are bound by consent alone And there was hope that the members of the same society might more easily obtain mutual right and provide for their own indemnity than foreiners who in many places are very little regarded Besides the benefit of this obligation was common to all Nations so that they which were one time grieved with it another time might be eased by the same Moreover that this custome was received appears not only out of full wars which Nations wage against Nations for in these what is observed may be seen in the forms of denuntiation and in the proposal and the decree it self but also where matters are not come to that fulness of war yet there is need of a certain violent execution of right that is imperfect war we see the same to be used Agesilaus of old said to Pharâ—…bazus a subject of the King of Persia We O Pharnabazus when we were the Kings friends carried our selves like friends towards all his and now being become his enemies we carry our selves like enemies Wherefore seeing you will be out of the things that are His we do justly oppose him in you XVII An example hereof in the Apprehension of men and of goods ONe species of that execution which I speak of was that which the Athenians called Apprehension of men of which the Attick Law thus If one have force offerd him and dy his Kinsman and friends may apprehend men till either the Man-slayers be duly punisht or yielded but it is lawful to apprehend only three men and no more Here we see for the debt of the City which is bound to punish her subjects that have hurt others â—…s tyed a certain incorporal right of the subjects that is the liberty of staying where they please and doing what they will so that they may be in servitude until the City do what she is bound to do that is punish the Guilty For though the Epygtians as we learn out of Diodorus Siculus argued that the body or liberty ought not to be
the Law of Nations but that it may shew a presumtion which yet by strong proofs to the contrary may be overthrown So in our Holland long since Anno 1338. in the heat of War I have found it was judged in full Senate and upon that judgment passed into a Law XXXIX By the Law of Nations the things are made ours which our enemies took from others by war ANd this is without Controversy if we respect the Law of Nations Things taken by us from the enemies cannot be challenged by them that had possessed them before our enemies and had lost them by war because the Law of Nations made the enemies first masters by external dominion and then us By which right among other arguments Jephtha defends himself against the Ammonites because that Land which the Ammonites challenged by the Law of war had passed from the Ammonites to the Hebrews as also another part from the Moabites to the Amorites and from the Amorites to the same Hebrews So David accounteth that for his own and divides it which he had taken from the Amalekites the Amalekites formerly from the Philistins Titus Largius in Dionysius Halicarnassensis when the Volscians requested to have their old possessions again gave his opinion in the Roman Senate thus We Romans believe those possessions to be most honourable and just which we have taken by the Law of War nor can we be induced by a foolish facility to part with the monuments of our valour and restore them to those that were not able to keep them Nor do we judge such possessions to be communicated only to our Countrymen now living but to be left to our posterity So far are we from relinquishing what we have got and dealing with our selves as if we were our own enemies And in the answer of the Romans given to the Aurunci We Romans are of this Judgment what one hath gotten of his enemies by valour he may transmit to his posterity by right Livy after his narration how the land neer Luca was divided by the Romans notes That Land was taken from the Ligures and had been formerly the Ethruscians By this right was Syria reteined by the Romans as Appian notes and not restored to Antiochus Pius from whom Tigranes the Romans enemy had forced it and Justin out of Trogus makes Pompey answer the same Antiochus in this manner As he did not deprive him of his Kingdom when he had it so would he not restore him to the Kingdom he had lost to Tigranes and knew not how to keep And likewise those parts of Gallia which the Cimbrians had taken from the Galls the Romans took for their own XL. Of the Right over Captives Their Condition and the reason of it IN the Primitive state of Nature no men are servants yet is it not repugnant to Natural Justice that by the fact of man that is by Covenant or transgression servitude should come in But by that Law of Nations of which we now speak servitude is of larger extent both as to persons and as to effects For if we consider Persons not only they that give up themselves or promise servitude are accounted for servants but all indeed that are taken in publick solemn War after they are brought within the guards as Pomponius saith Nor is Transgression necessary but the lot of all is equal even of them who by their ill fortune after war is on the suddain begun are deprehended within the bounds of the enemies Nor are they servants only themselves but also their posterity for ever to wit they that are born of a mother being a servant after servitude Now the effects of this right are infinite so that as Seneca the Father said there is nothing which is not lawful to a Master over his servant No suffering which may not freely be imposed on him no work which may not every way be commanded or extorted from him so that even the cruelty of Masters toward servile persons is unpunished unless so far as the Civil Law sets a measure and a penalty for cruelty We may observe saith Caius that Masters among all Nations equally have had power of life and death over their servants Then he addeth that limits were appointed to this power by the Roman Law to wit on Roman ground Moreover all things which are taken with the persons are acquir'd to the Master The servant himself who is in the power of another saith Justinian can have nothing as his own Whence is refelled or at least restrained their opinion who say incorporal things are not acquired by the Law of War For it is true they are not primarily and by themselves acquired but by means of the person whose they were Yet here are to be excepted those things which flow from a singular propriety or the person and therefore are unalienable as the right paternal For these if they can remain remain in the person if not they are extinguished Now all these things were introduc'd by the Law of Nations for no other cause but that the Takers tempted by so many commodities might willingly abstein from that extreme rigour whereby they might kill those they had taken both at the instant and afterward as we have said afore The appellarion of servants saith Pomponius is derived hence that Commanders are accustomed to sell Captives and so preserve and not kill them I said that they might willingly abstein for here is nothing like a Covenant whereby they may be Compeld to abstain if you look upon this Law of Nations but a manner of perswading from consideration of that which is more profitable And for the same cause this right is also transcribed to others just as the dominion of things The reason why this dominion was extended to the Children is because otherwise if the Takers should use their highest right they would not be born Whereto is Consequent that the Children born before that calamity unless they be taken too become not servants And the reason why it pleasd the Nations that the Children should be of their Mothers condition is because servile copulations were neither regulated by Law nor by certain custody so that no sufficient presumption could shew the Father So is that of Ulpian to be understood The Law of Nature is this that he which is born without lawfull Matrimony should follow the Mother That is The Law of general custom drawn from some natural reason as we have elswhere shewed that the word Natural Law is taken Now that these rights were not in vain introduced by the Nations may be understood by example of Civil Wars wherein for̄ the most part we see those that are taken slain because they could not be brought under servitude which Plutarch also hath noted in the life of Otho and Tacitus in the second of his Histories XLI This right over Captives prevailed not among all Nations nor doth it prevail
excerptis legationum Non ante ad res veniendum est quam tentata sit verborum via Menelaus apud Libanium Homini convenientius prius verborum experimentum saccre quà m statim ad arma prosilive †Donatus ad Eunuchum Pervulgatum est enim quod summa â—…i defenderis quum extorquetur hoc idem postmodum remitti remittentis Cass. 3. Var. 17. Orat. advers Ctesiphont Victor de jure bell num 28. †Gregor as lib. 10. de Alex. Bulgaro It is uncomely for Christians to make such bitter wars against one another when they may find a way of peace and turn their arms against the Infidels Molin disput 103. sect quando inter * Vide exemplum apud Cassiodorum 3. 1 2 3 4. Gailium de pace pnb. 2. c. 18. n. 12. †To the Druids in this respect and with better right have succeeded Bishops See the epistle of the Bishops to King Lewis In capitulis Caroli Calvi vide Roderic Tolet 7. 3. * Vide August de doct Christ. lib. 1. c. 28. †Scriptor Tragoediae Thebaidâ—…s Rex sit è vâ—…bis uter Manenâ—…e regno quae ite Dion Othone Molto enim satius justi isque est unum pro omnibus quam multos â—…us causa perire †Libro 5. * Ae 1. 11. Aequius huic Turno fuerat se opponere morti Upon like cause Antonâ—… challenged Octavius to a Duell Plutarch Antonia * Vide Certâ—… Calvi Capitulum apud S. Arnulphum pactionem Aquisgrantâ—… Ae 〈◊〉 as eadâ—…m apud Langobaidus vid. Paul Warnasred l. 1. c. 1â—… 4 c. 17. 5. c. 40. * Vide Herreram tom 2. †Sic Gratianus causa 11. a. 3. post C. Episc. distinguit justitiam causae ordinis animi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Eth. c. 10. 11. Rhet. 1. 13. August lib. 15. de C. D. c. 5. Covarr c. 3. Rhetor. c. 17. Lib. 2. 8. Top. 1. 13. Nic. 5. 12. Victor de ju bel n. 14. 33. Rom. 5. 6. Arist. Polit. 4. Rhet. ad Alex. cap. 3. Pausan. lib. 5. †Senec. Suasor 5. Gallio said war is to be undertaken for liberty for cur wives for our children but for things that may be spared and of small damage it is not to be undertaken Apollonius said somewhat more to the King of Babylon in Philostrat lib. 23. You ought not dispute with the Râ—…mans about Villages which are less than private mens possessions nor make war no not for great causes Josephus in his 2. against Appian saith of his Countrymen That they shew not their valaur to get riches but to preserve their Laws Other losses they bear patiently but when they are forced to depart from their Laws then they fight even beyond their strength and endure all extremities of war * De clementia 1. c. 14. Augustus said to a certain Father consulting what he should do to his son guilty of paricâ—…de He must be sent away whither his father would He decreed not prison or torment mindful of him to whom he gave advise and saying that a Father should be content with the sofâ—…est kind of punishment Seneca eod lib. c. 15. Terene Andria Pro peccato magno paululum supplicii satis est patri Phâ—…lo Patres abdicationis tristia verba pronunciant siliosque à domo sua 〈◊〉 omni cognatione abrumpunt ita demum ubi amorem illum quem iâ—…gentem ac supra omnia eximium natura parentibus indidit filiâ—… improbitas vicit Cicero pro Ligario Ignoscite Judices erraâ—… Lapsus est non putavit si unquam postbac ad parentem sic agiâ—… †Seneca epist. 87. Clementia alieno sanguini tanquam suo parcit 〈◊〉 scit homini non esse homine prodigè utendum Diodorus Siculus in fragmentis Non omnes omnino qui deliquere puniendi sunt sedii quos malesectorum nihil poenitet Chrysost. de statuis 6. Discant omnes qui à fide nostra sunt extranei reverentiam quae Christo exhibetur tantam esse ut cuilibet potestati injiciat fiaenos Honora Dominum tuum condona peccata conservis tuis ut ipse multo magis te honoret ut in â—…llo judicii die vultum tibi ostendat serenum atque clementem hujus tuae â—…enitatis memor Citat Gratianus caus 23. qu. 4. ex Augustino Duo ista nomina cum dicimus homo peccator non utique frustra dicuntur quia peccator est corripe quia homo miserere Vide quae sequuntur * Ambr. Offic. l. 2. c. 2. vide Molin tr 2. de Just. disp 103. Lorca dis 153. n. 11. †Theodosius was moved to pardon the crime of the Antiochians by those words of Christ pressâ—…d by the Bishop 〈◊〉 anus Father Forgive them for they know not what they do Chrysost 10. de staâ—…s * Jos. antiq hist. 2. 3. * Sen. de Clem. lib. 1. c. 20. †Chrysostom saith Clemency is an ornament to all men most of all to a Ruler For to rule himself and obey the Divine Law is most honourable to the highest Governour In laude Clementiae * Apud Vulcatium Gallicanum vita Avidii Cassidii August in epist. 104. ad Bonifac. Comitem Remember to give a speedy pardon if one hath trespassed against thee and cryeth mercy De Offic. 1. Nihil magno praeclaro viro dignius placabilitate Clementia †Procopius Vandat 2. The Offenders timely Repentance is wont to prevail with the offended party and obtain his pardon †Procopius in his second book of the Gotthâ—…cs saith the Goths spoke thus to Belisarius It concerns the Commanders of both Nations not to purchase their own glory at so great a price as the undoing of their people but to prefer and chuse things just and sase as well for themselves as for their enemies Diodotus in Thucydides saith Although they are very guilty yet would I not have them slain except it be expedient for us lib. 3. * Vide Plutarch Camill. So did the King of Armenâ—…a in the time of Severus Herodian l. 3. * Vide Procop. Vandal 2. Gotthic 1. Liv. lib. 6. Lib. 7. †De Marte quoties itur in suffragia Nemo imminere cogitat mortem sibi Sed quisque cladem destinamus alteri Quod si in Comitiis funera ante oculos forent Furiata bello non perisset Graecia †Of their own danger most men are Unmindfull when they vote for war They think not death hangs o'r their head But wish that other men were dead The undone Grecians had not been So mad if this they had fore-seen Arist. de animal mot * Narses in Procopius makes a prudent use of this rule Gotthic 2. De Offic. 2. Epist. ad Att. l. 13. 27. Tarsensi alterâ Siculâ 2. Lib. 9. epist. ad Attic. epist. 112. Quam not sit ardua virtus Servitium fugisse manu 2. Paral. 12. 78. Jer. 27. 13. Aug. de Civit Dei l. 22. c. 6. Lib. 18. †Guâ—…do Blandratensis
res pign * Etiam in Peloponneso Varr. 2. de re rust Columel princip lib. 6. Plin 8. 45. Aelian de hist. anim 2. cap. ult Porphyr 2. de abstinen Veget 3. de arte veterin * Vide Plin. Hist. Natur. 8. 38. 35. 10. Plutarchum Demetrio †Gell. l. 15. 31. * Protogenes Polyb. l. 5. Verrin 2. * Polybius in excerp Peires When thou art angry with men to be impious therefore against the gods is a sign of the greatest folly Better it is said Severus that God should be any way worshipt there than it should be turnd into a stable Lampr. Annâ—…bal for religion sake spared the temple of Diana at Saguntum Plin. 〈◊〉 〈◊〉 16. 2. We do not take away their Temples from enemies and foreiners Appian Of the Religion of Agesilaus See the Latin writer of his life and Plutarch Who communicateth this praise to many Romans in Sulla Vid. Brodaeum 5. Miscel. 〈◊〉 the Moor being no Christian himself honoured the Churches of Christians which the Vandals had profaned against whom he hoped the Christians God who ere he was would show his displeasure Procop. Vand. 1. Chosioes the Persian no Christian spared the Christians Church at Antioch Pers. 2. Just 〈◊〉 also durst not retein the things Vespasian had brought to Roâ—… out of the Temple at Hierusalem and being found at Rome Gzerichus had carried into Africa Vandal 2. How the â—…tans sav'd the holiness of that place where the bones of 〈◊〉 and Daniels three fellows were buried is testified by 〈◊〉 the Jew in his Itinerary * Silv. de bello p. 3. n. 5. †De Romanis Capua capta sic Sillus lib. 13. Ecce â—…epens tacito percurrit pectora sensu Religio saevas componit numine mentes Ne st immam taedasque velmt ne temola sub uno In cinerem sedisse rogo * Liv. 42. * Lib. 44. * Stra. l. 4. Lib. 1. * Diod. lib. 19. L. 1. de C. D. †Under Alarichus of whom Cassi dore relate this memorable act 12. 20. That when the Vessels of S. Peter were brought to him by his men he sent them back by the same hands that they might blot out their sacrilege by their devotion * Not only Christians but Barbarians have been allowed the benefit of Sanctuary Vid. Zosim l. 4. de Tomit barb L. sunt personae D. de religios Eurip. Troad * Appian Pun. * Lib. 42. Vertina 4. Lib. 14. * The like sact of Prusias is detested by Polybius whose words Suidas hath preserved in vocab Prus. Xen. hist. Gr. 4. Plutarch Agesilao * Spoliatis arma supersunt Lib. 34. Lib. 49. Lib. 3. Titus Quintius Flaminius Lib. 5. 3. Lib. 26. Aegid Regius de act supernat disp 31. dub 7. 〈◊〉 127. Cap. 13. * Vide quod judicavit Innocemius Pontifex apud Râ—…mbum 1. Victor de jure bellin 55 56. Silv. verb bell n. 10. Vict. n. 51. * Lib. 27. †The King of Polonia alleges this custom for himself in Thuanus l. 73. an 1581. Sic apud Hom. Il. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocein 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Scholiastes interpretatur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Lib. 33. * He addeth that a Creditor cannot come with any modesty to the surety except he cannot recover of the debtor Vide C c. ad Att. 16. 15. Aegid Regius de act superndisp 31. dub 7. n. 117. * Ptolomy remitted to Demettius the son of Antigonus his tent and all pertinents to the care of his body with his money too saying Their quarel was not for every thing but for Empire and honour Plut. in Demet. * Appian Civil 2. The old Romans did not take away all from the conquer'd but divided their Lands with them So did the Vandals in Afric and the Goths in Italy as History shews †Arrian l. 3. Cap. 14. Vict. de jure belli n. 41. Dec. l. 2. c. 5. dub 4. Covar c. peccatum p. 2. ¶ 1. †His son Alexander Thebes being taken ex mpted from servivitude both the Priests and those who had not assented to the Decrees made against him Plutarch * Philo saith Fathers for their children and children for their Fathers have often paid a ransome when they were either taken away by robbers or made prisoners of war whom truly the Laws of Nature stronger than these Laws made on earth write free men Helena saith in Theodectes Who dare call me a servant that am on both sides descended from the Gods * Sen. de benef 3. c. 22. Sen. Epist. 47. Coloss 4. 1. Eph. 6. 9. Lib. 7. c. 14. * Sic in ep Barnabae est Noli acerbè imperare servo aut ancillae lliae in Christum sperantibus ne eo ipso oflend as non timere te communem tibi ipsis dominum †Paed. ult 1. De Clem. 18. Epist. 47. L. 3. de benef cap. 18. Epist. 43. Vide Mosem de Kotzi praecept jubent 147. 175. 178. collat leg Mosis Roman tit 3. Philo de special legib 2. Cyprian ad Demetr Non agnoscu miser dominum Deum tuum cum sic exercâ—…as ipse in hominem dominatum Exod. 21. 26 27. * Vide Philonem dicto loco Exod. 20. 10. 23. 12. Deut. 10. 14. * Sen. epist. 47. Non tanquam hominibus sed tanquam jumentis abutimur Of the Athenians lenity to their servants See Xenoph. de repub Athen. Epist. 47. * Epicurus friends Sen. epist. 107. Dion Prus. optimum regem describens Domini nomen adâ—… in bomines liberos non usurpat ut in servos eo abstineat Teitullian Gratius est nomen piet at is quam potestatis Hieronym ad Colantiam Benignitate potius quam severitate exige reverentiam †Servius ad illud Maronis Claudite jam nivos pueri †Sen. l. 3. de beuef * Ciceró opera exigenda iusta praebenda Atist 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1. Oecon. 5 Sirach 33. 25. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 †El Isaaci Angeli in Siculos captivos memoranâ—…e Niceta lib. 1. Phorm act 1. sc. 1. * Varro de servis Studiosio res ad opus fieri liberalius tractando aut cibariis aut vestitu largiore aut remissione operis concessioneque ut peculiare aliquid in fundo pascere licent * Seneca Nunquid dubium est quin servus cum peculio damini sit Dat tamen domino suo munus * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Instit. de his qui sui vel al. L. manumiss D. de just ju * Andr. act 1 1. Servibas liberaliter Ita MS. recte * Lib. 3. Deut. 15. 13. * Consuetude id interpretata ne minus 30. Siclis delur vide prac jubente 84. Silv. verbo servitus S. 3. Fortunius in l. manumiss D. de just ju Less l. 2. c. 5. dub 5. Deut. 15. 13. * In the war of the French with the Spaniard in Italy a horsman was redeâ—…n'd for the fourth of his yeerly pay See Mariana l. 27 18. Qu. Grâ—…c â€
the second For as an Infant King hath right but cannot exercise his power so also one of an alienated mind and in captivity and that lives in the territory of another so that freedome of action about his distant Empire is not permitted him for in all these cases Curators or Vicegerents are to be given Therfore Demetrius when being in the power of Saleucus he was under some restraint forbad any credit to be had either to his seal or letters but appointed all things to be administred as if he had been dead LXI Of the war of Subjects against their Superiors The question stated WAr may be waged both by private men against private as by a traveller against a robber and by those that have the highest power against those that have it likewise as by David against the King of the Ammonites and by private men against those that have the highest power but not over them as by Abraham against the King of Babylon and his neighbors and by those that have the highest power over private men either subject to them as by David upon the part of Isboseth or not subject as by the Romans against the pirats Only the question is whether it be lawfull for private or for publique persons to make war upon them under whose power whether supreme or subordinate they are And first that is beyond all controversy Armes may be taken against inferiors by those who are armed by authority of the Highest power as Nehemias was armed by the Edict of Artaxerxers against the neighboring Governours So the Roman Emperors grant leave to the Lord of the soil to force away the Camp-measurers But it is inquir'd what is lawful against the Highest Power or the Lower Powers doing what they doe by authority of the Highest That 's without controversy amongst all good men If they command any thing contrary to naturall right or to the divine precepts what they command is not to be done For the Apostles when they said we must obey God rather than men appealed to a most certain rule written in all mens minds which you may finde almost in the same words in Plato but if for any such cause or otherwise because it is the pleasure of the Soveraign injury be offerd us it is to be sufferd with patience rather than resisted by force LXII By the law of Nature war upon Superiors as such is not ordinarily lawfull ALl men indeed naturally as we have said above have right to keep off injury from themselves But Civil society being ordained for the maintenance of tranquillity thereupon ariseth presently to the Commonwealth a certain greater right over us and ours so far as it is necessary to that end The Commonwealth therefore may for publicque peace and order prohibite that promiscuous right of resisting and no doubt is to be made of the will thereof when without that the end cannot be attained For if that promiscuous right of resisting continue it wil not be now a Commonwealth but a dissolute multitude such as were the Cyclops of whom Euripides saith Every one gives lawes to his wife and children and A confused company where every one commands and none obeyes And the Aborigines who as Salust relates were a savage kind of people without laws without rule disorderly and dissolute and the Getulians of whom he speaketh in another place that they were not govern'd neither by customes nor by the Law or command of any Ruler The manners of all Commonwealths are so as I have said It is a general agreement of human society saith Augustin to obey Kings To the Prince saith Tacitus have the Gods given supreme power to the subjects is left the glory of obedience Hic quoque Indigna digna habenda sunt Rex quae facit Aequum atque iniquum Regiiimperium feras Seneca Add that which is in Salust To doe what he will without punishment that is to be King Hence it is that every where the Majesty that is the dignity whether of a people or of One that hath the highest power is defended by so many Lawes by so many punishments which dignity cannot consist if the licence of resisting do remain A Soldier who hath resisted his Captain willing to chastise him if he hath laid hold on his rod is cashierd if he purposely break it or laid violent hand upon his Captain dyes And in Aristotle it is If one that beareth office beateth any man he must not lift up his hand against him LXIII Nor is it allowed by the Hebrew Law IN the Hebrew Law he is condemned to death who is disobedient either to the High Priest or to him who is extraordinarily appointed by God to be Ruler of the people That which is in Samuel of the Kings right plainly appeares to him that looks rightly on it neither to be understood of true right that is of a faculty to do a thing honorably and justly for a far other manner of life is prescrib'd the King in that part of the Law which declares his office nor to signify a naked fact for there would be nothing peculiar in it sith also private men are wont to do injuries to private men but a fact which hath some effect of right that is an obligation of non-resistence Wherefore it is added that the people opprest with these injuries should cry to God for help to wit because no human remedies remained So then is this called right as the Pretor is said reddere jus to do right even when he determineth unrightly LXIV Least of all by the Evangelical Law The first proof out of S. Paul IN the new Covenant Christ commanding to give to Caesar the things that are Caesars would have the disciples of his institution understand that no less if not greater obedience with patience if need be is due to the Highest Powers than the Hebrews owed to the Hebrew Kings which his best Interpreter Paul the Apostle explaining more at large and describing the duties of subjects amongst other words hath these Whosoever resisteth the power resisteth the ordinance of God and they that resist shall receive to themselves damnation He addes For he is the Minister of God to thee for good And again Wherefore ye must needs be subject not onely for wrath but also for conscience sake In subjection he includeth a necessity of not resisting nor that onely that springs from fear of a greater evill but that flowes from the very sense of our duty and obligeth us not to men only but to God He addes two reasons First because God hath approved that order of ruling and obeying both of old in the Hebrew Law and now in the Gospell wherefore the publique powers are to be so esteemed by us as constituted by God himself For we make those things ours which we grace with our authority Second because this order serves to our good But one may say to suffer injuries
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 it is noted by Aristotle that some have no tryalls about these matter for they think men ought to be content with the faith which they have taken And elsewhere In some places the Laws permit no action for what is trusted as if he were onely to be dealt with privately with whom one hath contracted and taken his word The objections brought against this opinion out of the Roman Law concern not our Embassadors but those that are provincial or municipal LXXII The right of Embassasadors vindicated by War PRophane Histories are full of wars undertaken because of wrong done to Embassadors And in the sacred story is exstant the memory of the war which David upon that ground waged against the Ammonites Nor doth Cicero esteem any cause more just against Mithridates LXXIII Of the right of Burial The right of burial springs from the same Law of Nations BY the Law of Nations which hath its rise from their will sepulture is also due to the bodies of the dead Dion Chrysostom amongst manners or customs which he opposeth to written Law after the rights of Embassadors mentions not to forbid dead men to be buried And Seneca the father among unwritten Laws but moâ—… certain than all written ones sets down this to bestow earth upon the dead The Hebrews Phila and Josephus call this the Law of nature as it is usual under the Name of Nature to comprehend common customes agreeable to natural reason He that hinders burial puts off man saith Claudian gives an affront to nature saith Leo the Emperor is an enemy to piety saith Isidore Pelusiot And because these rights common to Civil men that they might seem the more sacred were by the Antients referd unto the Gods we see this right as well as that of Legation frequently ascribed to them Therfore you shal find it in Sophocles called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Law of the Gods Isocrates speaking of the war of Theseus against Creon saith Who knows not what all success Adnastus had before Thebes where attempting to restore the son of Oedipus his son-in-Law he lost very many Argives and saw their leaders slain And himself surviving with dishonour when he could not obtain leave to bury the slain went to Athens with a petition to Theseus the King that he would not suffer such men to lye unburied nor the old custome to be despised and the right of all men violated being established not so much by human nature as by divine power Theseus hearing this decrces to send to Thebes without delay A little after the same Author reprehends the Thebans that they preferred the Statutes of their own City before Lawes Divine and he mentions the same history in other places So do others And frequently in good Authors we see eminent titles of vertue ascribed to this office For Cicero and Lactantius call it humanity Ualerius Maximus humanity and mildness Quintilian mercy and and Religion Seneca mercy and humanity Philo compassion of human nature Ulpian mercy and piety Modestinus the memory of human frailty Capitolinus Clemency Euripides and Lactantius justice Prudentius a gracious work On the contrary the Donatists who forbad the bodies of the Catholicks to be buried are accus'd of impiety by Optatus Spartianus saith such are without reverence of humanity Livius calls it cruelty beyond belief of human anger and Lactantius saith it is wicked wit in them that made sepulture to be a vain and superfluous thing LXXIV What was the first cause of this custome WHat was the first cause of this custome of interring bodies whether enbalmed before as among the Egyptians or burnt as among most of the Grecians or so as they are which Cicero notes to be most the antient way and after him Pliny of this all have not the same opinion For Moschion thinks the occasion was given from the gigantick ferity in eating men the abolition whereof is signified by Sepulture Others think men did in this manner as it were of their own accord pay the debt which otherwise nature requireth of them even against their will For that the body of man made of earth is due to the earth not only God declared to Adam but also the Greeks Latins frequently acknowledge Cicero out of Euripides Earth is to be rendred to the earth And the same Euripides hath elswhere more fully exprest what we read in Solomon The body returns to the earth from whence it came and the soul to God that gave it Pliny hath also written that the earth entertains us at our birth feeds us being born and all along our life susteins us and last of all when we are abdicated by the rest of nature she like a gentle mother embraces us in her lap and covers us There are some that hold the hope of resurrection as it were by this monument was consignd to posterity by the first parents of mankind For that Democritus also taught Bodies are to be conserved because of a promise of returning to life Pliny witnesseth And Christians oft refer the rite of decent burial to this hope Prudentius Why do Marbles cover dust And Monuments our bodies keep Because the thing they have in trust Is not dead but laid to sleep The more plain and simple opinion is whereas man excells other living creatures it seemed an unworthy thing that other animals should be fed with his body for the preventing whereof as much as might be sepulture was invented By the pity of men bodies are kept from the invasion of souls and wild beasts said Quintilian And Cicero Vexed by wild boasts he wanted the common honour in his death God in the Prophets threatneth the Kings he hates that they should have the burial of an Asse that dogs should lick their blood Nor doth Lactantius consider any thing els in burial when he saith We will not suffer the Image and work of God to ly a prey for beasts and birds And Ambrose his words are these You can do no better office for him who is now past requiting of you save him from the fouls of the air save from the beasts a partaker of the same nature But though such injuries were not yet for the body of man to be trod under foot and broken seems very unbecoming the dignity of his kind That in Sopater's controversies is to our purpose It is a comely thing to bury the dead and by nature it self appointed unto bodies lest they be vilified after death if they putrify naked All the Gods are pleased to indulge this honour to bodies deprived of life For because it is unreasonable the secrets of human nature should be exposed after death to the sight of all we have received a custome of old to Inter human bodies that being laid up in their sepulchers they may conceal their rotteness To the same purpose is that of Gregory Nyssen That the Sun may not see what is
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
lawful which is right and pious intirely though perhaps another thing may be done more laudably as in that saying of S. Paul the Apostle All things are lawful for me but all things are not expedient All things that is all of that kind of which he had begun to speak and would speak more So it is lawful to contract matrimony but more laudable is single Chastity proceeding from a pious design as S. Augustin discourses to Polâ—…ntius out of the same Apostle It is also lawful to marry again but it is more â—…awdable to be content with one marriage as Clemens Alexandrinus rightly explains this question A Christian husband lawfully may leave his Pagan wife as S. Augustin thought with what circumstances this is true is tâ—… proper to determine here but he may also keep her lawfully Ulpian of 〈◊〉 Seller to whom 't is lawful after appointed day to pour forth the wine If 〈◊〉 saith he when he may pour it forth 〈◊〉 doth it notâ—… he is the more to be pracâ—… But sometime a thing is called lawful not which may be done without violating the rules of piety and duty but which among men is not subject unto punishment So among many people it is lawfull to commit fornication among the Lacedemonians and Egyptians it was also lawfâ—…l to stealâ—… In Quintilian we read There are some things not laudable by nature but granted by Law as in the XII Tables The Creditors might divide the Deâ—… body among them But this signification of the word lawfull is less proper 〈◊〉 Cicero observeth well in the fist of his Tâ—…sculans speaking of Cinna To me entâ—… câ—…ntrary he seemeth miserable not 〈◊〉 in that he did such things but in that 〈◊〉 so behaved himself that it might be lawful for him to do them though indeeâ—… is lawful for none to do amiss but weaâ—… in our language calling that lawful which is permitted to any one neveâ—…theless it is received as when the saâ—… Cicero for Rabirius Posthumus thus 〈◊〉 speaks the Judges Ye ought to consider what becomes you not how much is lawful for you for if ye seek only what is lawful you may take away out of the City whom you please So all things are said to be lawful for Kings because they are exempt from human punishments as we have said elswherere But Claudian informing a King or Emperour rightly saith Have in your thought Not what you may effect but what you ought And Musonius reproveth Kings who â—…se to say This is lawful for me not This becomes me And in the same sense we often see oppâ—…ed What is lawful and What ought to be done as by Seneca the Father in his controversies more than once XXVII The effects of solemn War generally consider'd are referrd to the later sense of lawful in respect of impunity And why such effects were introduced Testimonies IN this sense then it is lawful for an Enemy to hurt his Enemy both in his person and in his Goods that is not only for him who upon a just cause vengeth war and who hurteth within thâ—… measure which we have said to be naturally granted in the beginning of its book but lawful on both sides and wiâ—…out distinction So that for that cause he can neither be punisht being perâ—…hance deprehended in another territory as 〈◊〉 homicide or theef not can War be made against him by another upon that account Thus we read in Sallust To 〈◊〉 all things in victory were lawful by the Law of War The cause why it pleased the Nations to have it so was this 〈◊〉 had been dangerous for other Nations 〈◊〉 take upon them to pronounce and determine about the Right of War between two Nations for by that means they would be engaged in the War of others 〈◊〉 the Massilians said in the cause of 〈◊〉 and Pompey That it was above thâ—… Judgment and above their power to â—…cern whether side had the juster caâ—… Moreover even in a just War it can â—…ardly be known by external marks what is the just measure of self-defense of recovering ones own or of exacting punishments so that it is much better to â—…eave these things to be examined by the Conscience of those that War than to reduce them under the judgment of others Beside â—…this this effect of licence that is of â—…mpunity there is another also to wit of dominion concerning which we shall speak hereafter As to that licence of hurting which we have now begun to handle it extendeth first to Persons of which â—…icence many Testimonies are extant in good Authors It is a Greek proverb out of a Tragedy of Euripedes That the blood of an enemy leaves no stain Therefore by the old custom of the Greeks it was not lawfull to bathe to drink to sacrifice much less in their company who had slain a man out of the time of war but in theirs that had done so in war it was lawfull And commonly to kill is calld the right of War Marcellus in Livy Whatsoever execution I have done upon the enemy the right of War defends In the same historian Alcon saith to the Saguntines I think it better for you to suffer these things than your bodies to be slain your wives and children to be dragd and ravisht before your eyes by the right of War The same elswhere when he had related how the Astâ—…penses were put to the sword addeth It was done jure belli by the right of War Cicero for Deiotarus Why should he be an enemy to you by whom be might have been killed by the Law of Wâ—… by whom he remembred he was made King and his sons And for M. Marcellus When by the condition and right of Victory we were all dead men we were preserved by the judgment of your Clemency Caesar to the Haeduans signifies They were saved by his favour when the Law of War gave him leave to destroy them Josephus in the war of the Jews It is honourable to fall in War but by the Law of War and by the hand of the Conquerour Now wheÌ„ these writers speak of the Law or right of War it appears by other places they must be understood not of that which frees the act from all fault but of the impunity before mentioned Tacitus said Causes and merits are considerd in peace in War the innocent and the guilty fall together The same in another place Neither did the right of men suffer them to honour that slaughter nor the course of War to revenge it Nor is the right of War to be taken otherwise when Livy tells how the Greeks spared Aeneas and Antenor because they had always perswaded unto Peace Cyprian Monslaughter when private men commit it is a crimo when it is publickly done 't is call'd a vertue Not respect of innocence but greatness of the cruelty gives impunity to wicked Actiâ—… So
than justifick For a just talion and properly so called is to be exercised upon the same person that offendeth as may be understood by what we have said above of communication of Punishment But on the contrary from war for the most part that which is called talion redounds to the evil of those who had no hand in that which is accused And as to a pertinacious affection to one side no man judges that worthy of punishment as the Neapolitans in Procopius answer Belisarius which is then most true when that side is either assigned by nature or chosen upon good ground Yea so far is this from being a crime that it is a crime to quit a Garrilon especially by the old military Roman Law which here admitted not lightly any excuse of fear or danger To depart from a Garrison saith Livy is capital Wherefore every one as he pleaseth makes use of that highest rigour for his own Interest and that rigour is defended among men by that right of Nations of which we now speak The same right hath been also used against Hostages nor against them only who had obliged themselves as by agreement but against them too that were deliverd by others Two hundred and fifty were once slain by the Thessalians by the Romans three hundred of the Volsci We must note that Children also were wont to be given for Hostages as by the Parthians which we read was also done by Simon one of the Maccabees and women as by the Romans in the time of Porsena and by the Germans as Tacitus relateth XXXI By the Law of Nations it is forbidden to kill with Poyson Of poysoning weapons and waters NOw as the Law of Nations permitteth many things by that way of permission afore explained which are prohibited by the Law of Nature so it prohibiteth some things which by the Law of Nature are permitted For to kill 〈◊〉 man whom it is lawful to kill whether with the sword or with poyson is no matter if you respect the Law of Nature I say the Law of Nature for indeed it is more generous to kill so that he who is killed may have leave to defend himself but this is not due to any one who hath deserv'd to dy But the Law of Nations if not of all yet of the best is of old that an enemy may not be kill'd with poyson which consent hath its rise from a regard of common advantage that dangers of war which began to be many might not be too much hightned And it is credible that this proceeded from Kings whose life above others is defended from arms but is less secured from poyson thâ—… the life of other men unless it be defended by some reverence of Law and fear of infamy Livy calls it Clandestin wickedness speaking of Perseus Claudian a heinous act speaking of the treachery against Pyrrhus rejected by Frabricius and Cicero wickedness touching the same history For common examples sake no such thing is to be admitted say the Roman Consuls in their letter to Pyrrhus with arms not with poyson are wars to be waged is in Valerius Maximus and as Tacitus relates when a prince of the Catti promised the death of Arminius by poyson Tiberius rejected him equalling himself in that glory with the old Generals Wherefore they that hold it lawful to kill an enemy by poyson as Baldus out of Vegetius respect the meer Law of Nature but oversee that which derives it self from the will of Nations It is a little distant from such poysoning and comes neerer to force to infect darts with poyson and double the causes of death which Ovid hath deliverd of the Getes Lucan of the Parthians Silius of some Africans and namely of the Ethiopians Claudian But this too is against the Law of Nations not the universal but of the Europaeans and of such as conform to the Civility of better Europe This is well observ'd by Salisberiensis in these words Although I see it used sometimes by Infidels yet I do not find the licence of poyson by any law ever indulged to us Therefore Silius's phrase is To infame steel by poyson for to poyson fountains also and this too is not kept secret or not long Florus saith is not only contra morem majorum against the manner of the Antients but against the right of the Gods that is against the Laws of Nations which were wont to be ascribed to the Gods as Authors Nor ought this to seem strange if to lessen dangers there be some such tacit agreements of Warriours when of old the Chalcidians and Eretrians during the War consented together to make no use of darts But the same is not to be determined of corrupting waters without poyson so that they may not be potable which Solon and the Amphictyones are read to have thought just against Barbarians and Oppian relates as usual in his time For that is esteemed all one as if the stream be averted or the Veins of the Spring intercepted which both by Nature and Consent is lawfull XXXII Whether it be against the Law of Nations to use Murtherers WHether it be lawful by the Law of Nations to kill an enemy a Murtherer being sent against him is wont to be enquired To be sure we must make a difference between Murtherers who violate their faith either express or tacit as Subjects toward a King vassalls toward their Senior Soldiers toward him whom they serve men received as suppliants or strangers or fugitives toward their Receivers and between those that are not bound with any faith as Pipin father of Charles the Great attended with one Soldier passing the Rhene is related to have slain his Enemy in his Chamber which Polybius saith was in like manner attempted against Prolemy King of Egypt by Theodotus an Etolian and he calls it a manly boldness Such also was that enterprize of Q. Mutius Scaevola commended by Historians which himself thus defends Being an enemy I purposed to kill an Enemy Porsena himself in this act acknowledges nothing but valour Valerius Maximus calls it a pious and valiant design and Cicero praiseth it in his Oration for P. Sextius It is indeed lawful to kill ones Enemy every where not only by the Law of Nature but of Nations too as we have said above nor is it material what the number is of those that do or suffer Six hundred Laconians with Leonides entring the Enemies camp go on straight to the Kings tent Fewer might lawfully have done so Few were they that killed the Consul Marcellus being secretly circumvented and that were very neer stabbing Petilius Cerialis in his bed Ambrose commends Eleazar for setting upon an Elephant bigger than the rest supposing the King sate thereon Nor onely they that do these things but they that appoint others to do them are accounted without fault by the Law of Nations
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
for the glory of Empire are to be waged with less bitterness That hath place often which is in Cicero concerning the war of Caesar and Pompey It was a dark War a Contention 'twixt most famous leaders many doubted what was best And what he saith elswhere Though we were in some fault of human error yet certainly we are free from wickedness Just as in Thucydides things are said worthy of pardon which are done not out of malice but rather by mistake What Brutus wrote of Civil I think may be well referd to most wars They are more sharply to be forbidden than prosecuted And where Justice doth not exact this yet 't is agreeable to Goodness agreeable to Modesty agreeable to Magnanimity By pardoning was increased the Greatness of the Roman People saith Sallust Tacitus No less Gentleness is to be used toward suppliants than stifness toward an enemy It is a memorable passage in the fourth Book to Herennius Well did our Ancesters observe this to deprive no King of life whom they had taken in War Why so Because it was not meet to use the power fortune had given in the punishment of them whom the same fortune so lately had placed in the higest dignity But did he not lead an Army against us I will not remember that Why so Because it is the part of a valiant man to take them for enemies that contend for victory and to look upon the conquered as men that valour may diminish the danger of War and Courtesy may encrease the honour of Peace But would he have done so had he overcom Why then do you spare him Because I use to contemn such folly not to imitate it Perseus Syphax Gentius Juba and in the time of the Cesars Caractacus and others escaped capital Punishment so that it may appear both the causes of war and the manner of waging it were considerd by the Romans whom yet Cicero and others do confess to have been somewhat too sharp in the use of Victory VVherefore M. Aemilius Paulus in Diodorus Siculus not amiss admonisheth the Roman Senators in the Cause of Perseus If they feared nothing human yet they should fear divine revenge imminent over them that use their victory with too much pride and insolence And Plutarch notes in the wars among the Greeks the very enemies held their hands from the Lacedemonian Kings in reverence of their dignity An enemy therefore that will regard not that which human Laws permit but that which is his duty that which is good and pious will spare even an Enemies blood and will put none to death but to avoid death himself or somewhat like death or els for sins proper to the person which amount to capital offences And yet to some that deserve death he will forgive either all punishment or that of death either for humanity sake or for other probable causes Excellently saith the now-cited Diodorus Siculus Expugnations of Cities prosperous fights and whatsoever is in War successfull more often proceed from fortune than from valour but in the highest power to bestow mercy upon the Conquered is the work of Providence alone Now concerning the slaughter of them who are killed by chance not on purpose we must remember it is a part of mercy if not of Justice not without great causes and such as conduce to the safety of many to enterprize ◅uch a thing whence destruction may come upon the innocent Polybius is of this mind saying It is the part of good men not to wage a destructive War no not with the bad but so far that offences may be repaird and amended not to involve the innocent with the guilty in the same ruine but for the innocent to spare the guilty also XLV Children Women old Men Priests Scholars husbandmen are to be spared UPon those premises 't wil not be hard to determine of the specials that follow Let age excuse a child sex a woman saith Seneca in the Books where he is angry with Anger God himself in the wars of the Hebrews even after peace offerd and refus'd will have women and infants spared besides a few Nations excepted by special command against which the war that was was not of men but of God and so 't was called And when he ordered the Madianitish womē to be slain for a proper crime of theirs he excepted Virgins that were untoucht Yea when he had very severely threatned the Ninivites with destruction for their most heinous sins he suffered himself to be restreined by compassion upon many thousands of that age that knew not good from evil Like whereunto is that sentence of Seneca Is any one angry with children whose age doth not yet discern the differences of things If God hath done and determined thus who may without injustice slay any men of what sex or age soever without any cause being the giver and Lord of life what is fitting for men to do to whom he hath given no right over men but what was necessary to human safety and the conservation of society Add here concerning children the judgment of those Nations and times wherein equity most prevailed We have Arms saith Camillus in Livy not against that age which even in taking of Cities is spared but against armed men And this is among the Laws of War he means the Natural Laws Plutarch speaking of the same thing There are saith he among good men certain Laws of War too VVhere note that among good men that you may descriminate this Law from that which is customary and consisteth in impunity So Florus saith It could not otherwise be without violation of integrity In another place of Livy An age from which Soldiers in their anger would abstein And elsewhere Their cruel wrath went on even to the slaughtering of infants Now that which hath place in children always that have not attained the use of reason for the most part prevails in women that is unless they have committed something peculiarly to be avenged or do usurp manly Offices For it is a sex as Statius speaks that hath nothing to do with the sword Alexander in Curtius I am not used to wage war with Captives and Women he must be armed to whom I am an enemy Grypus in Justin None of his Ancestors among so many domestick and external wars did ever after victory shew cruelty to women whom the softness of their sex exempteth from perils of War and the rough handling of the Conquerors Another in Tacitus He carried arms against armed men not against women Valerius Maximus calls it barbarous and intolerable cruelty which Munatius Flaccus shewed to Infants and Women Latinus Pacatus saith Women are a sex which wars do spare Papinius hath the same of old men They are a company violable by no arms The same is to be determined universally of males whose course of life abhorres from war By the Law of War
not onely bound to the Souldiers for the losses following thence but also to his Subjects and Neighbours whom the needy Souldiers have plundered and abused On the other side it is the duty of those that abstain froâ—… VVar to do nothing for the strengthening of him who maintains a bad Cause or whereby the motions of him that wageth a just VVar may be retarded And in a doubtfull case they ought to shew themselves equal to both in permitting passage in affording provision for the Legions in not relieving the besieged The Corcyreans in Thucydides say It is the duty of the Athenians if they would not side with any party either to prohibite the Corinthians from raising Souldiers out of Attica or permit them to do the same It was objected by the Romans against Philip King of the Macedonians that the League was violated by him two waies both because he did injuries to the fellows of the Roman people and because he assisted the Enemy with aids and money The same things are urged by Titus Quintius in his Conference with Nabis Yet thou sayst I have not properly violated you and your friendship and society How often shall I prove the contrary In short Wherein is friendship violated By these two things especially If thou hast my friends for enemies if thou art a friend to my enemies In Agathias we read He is an enemy who doth what pleaseth an enemy And in Procopius He is reckoned in the Enemies Army who supplyeth them with what is properly usefull for the VVar L. Aemilius Praetor accused the Teians for victualling the Enemies Navy and promising them Wine adding unless they would do the like for the Navy of the Romans he would account them for his Enemies Augustus said The City that receives my Enemy is become my Enemy It will be also profitable to mingle League with both sides waging war so that with the good will of both it may be lawfull to abstain from war and exhibit the common offices of humanity to both 'T is in Livy Let them as becomes neutral friends desire peace not interpose themselves in the war Archidamus King of Sparta when the Eleans seemed to encline to the Arcadians party wrote an Epistle to them containing onely this It is good to be quiet LVII Of things done privately in publick War WHat we have hitherto said most part concerns them who either have command in chief or execute publick orders We must also see what is lawfull privately in War by the Law of Nature of God or of Nations Cicero relates that the Son of Cato Censorius served in the Army of General Pompilius and when after the dismission of that Legion wherein he served the Young Man in love with war had remained in the Army Cato wrote unto Pompilius that if he would have him stay he should give him an oath the second time adding this reason because being dis-engaged from the first he could not justly fight with the Enemy Cicero setteth down the very words of Cato to his Son whereby he admonisheth him not to enter into Battel for it is not lawfull saith he for one to fight the Enemy that is no Souldier So also we read the praise of Chrysantas one of Cyrus's Souldiers who being upon his Enemy withdrew his Sword hearing a retreat sounded Seneca saith He is call'd an unprofitable Souldier who hears not the sign given for a retreat But they are deceiv'd who think this comes from the external Law of Nations for if you regard that as it is lawfull for every man to seize upon the Enemies goods so also to kill the Enemy for by that Law the Enemies are of no account Wherefore that which Cato advised comes from the Military Discipline of the Romans wherein it was a Law noted by Modestinus that whosoever obeyed not his Orders should be punisht with death though the matter succeeded well Now he also was suppos'd not to have obeyed who out of order without the command of the General entred into any fight as the Manlian commands do teach us For truly if that were lawfull either stations would be deserted or license proceeding the Army or part thereof would be engaged in unadvised Battels which by all means is to be avoyded Therefore Sallust when he describes the Roman Discipline saith In war they have been often punished who against Authority had fought against the Enemy and who being recall'd made 〈◊〉 hast out of the Battel A certain Laconian when being upon his Enemy and hearing the sign of retreat he had repressed the blow gave the reason thus It is better to obey my Commander than to kill my Enemy And Plutarch saith They that are disbanded cannot kill the Enemy because they are not bound by Military Laws wherewith they ought to be bound that are to fight And Epictetus in Arrian relating the now-mention'd fact of Chrysant as addeth So much did he prefer the execution of his Commanders will before his own Nevertheless if we respect natural and internal right it seems granted to every man in a just War to do those things which he is confident will within the just measure of warring be advantageous to the innocent party not also to appropriate to himself things taken for nothing is owing to him unless perchance he exact punishment by the common right of men Which last how it is restrain'd by the Gospel-law may be understood by what we have said afore Now a mandate may be either general or special General as in a tumult among the Romans the Consul said Whosoever would have the Common-wealth safe fallow me Yea and to all particular Subjects is sometimes granted a right of killing besides in the way of self-defence when 't is publickly expedient Special mandate not onely they may have that receive Pay but they also that go to war at their own charge and that which is more administer at their charge a part of the VVar as they that provide Ships and maintain them by their own expences to whom instead of Pay is wont to be granted leave to keep what they can take And how far that may go without violation of internal justice and charity is not without cause enquir'd Justice either respects the Enemy or the Common-wealth it self wherewith one has contracted From the Enemy we have said may be taken away the possession of all things which may feed the VVar and this for security sake on condition to restore it and the dominion too may be taken away so far as to the compensation of that which either from the beginning of the war or by what fell out after is owing to him that â—…geth a just war whether the things belong to the hostile Common-wealth or to particular men and those in themselves innocent but the goods of the nocent even by way of punishment may be taken away and possessed by the Takers So then
to Rostoch He diverts to Balemannia and sends for Dr. Stochman the Physician who observing the weakness of his body by reason of age shipwrack and the incommodities of the journey presageth the end of his life to be at hand The next day after his entrance into this City which in the old style was the XVIII of August about IX at night he requesteth me to visit him I came and found the Man approaching neer to the agony of death I saluted him and signifyed how happy I should have been to have had conference with him had he been in health His answer was Ita Deo visum fuit Thus it hath pleased God I go on and advise him to compose himself to a happy departure to acknowledge himself a sinner and repent of whatsoever he had done amiss and when as we discoursed I had mentioned the Publican confessing himself a sinner and praying God to be mercifull unto him He answers Ego ille sum Publicanus I am that Publican I proceed and remit him to Christ without whom there is no salvation He replyes In solo Christo omnis spes mea est reposita In Christ alone is placed all my Hope I rehearsed with a loud voice that German Prayer in the German tongue Horr Jesu wahrer Mensch und Gott c. He with closed hands and a low voice said after me When I had done I asked whether he had understood me He answers Probe intellexi I understand you well Afterward I repeated some passages out of the Word of God which dying men are wont to be put in minde of and I ask again whether he understood me I hear your voyce saith he but hardly understand what you say Then he became speechless and in a short time after gave up the Ghost just at twelve midnight Thus have you the Catastrophe of Grotius the last end of this excellent Man's Life His dead Body was committed to the Physicians His Bowells were put in a Vessel of Brass and that they might be laid up in the most honourable place of our principal Church dedicate to the Virgin Mary I easily obtained of the Governours Let him rest in Peace I have received from a good hand that our Author a little before his death declared his Affection to the Church of England and his Desire to end his dayes in the Communion of the same These Collections put together in some haste til One more Able arise to do honour to this Great Man's Memory be pleased Gentle Reader favorably to accept from the Translator Clement Barksdale THE END ERRATA PAg. 1. lin 1. * State p. 6. l. 3 are often l. 4. dele * pag. 94. l. 6. was included in p. 400. CXIII and so restore the following numbers p. 448. l. ult joyning SCRIPTURES EXPLANED Ps. 19. Rom. 7. LAw pure and holy 10 Gen. 14. 20. Blessed be the most high God 15 Deut. 20. 10. Laws of waging war 16 Gen. 9. 5 6. And surely your blood 1â— Gen. 4. 14. Whosoever findeth me 1â— Matth. 5. It hath been said to them of old 23 Lev. 19. 18. Thou shalt hate thine enemy 23. 329. Lev. 24. 20. An eye for an eye 23 Rom. 3. 27. Law of works 24 Rom. 7. 14. Spiritual Law 24 1 Tim. 2. 1. Prayers for Kings and for all 25 Rom. 13. 4. He is the Minister of God 26. 27. 47. Psal. 2. Kiss the son 26 Act. 26. King Agrippa 28 Lu. 3. 14. Be content with your wages 29 Mat. 4. 17. Kingdom of heaven 29 Mat. 11. 13. The Law continued unto John 30 Mat. 5. 17. Not to dissolve the Law 32 Act. 13. Sergius Paulus 34 Rom. 13. Tribute to whom tribute 35 Act. 25. 11. I refuse not to dy 35 Phil. 4. 8. Whatsoever things are honest 36 Eph. 2. 14. Partition wall 36 Esay 2. 4. Swords into Plowshares 37 Mat. 5. 38. Turn the other cheek 39 Mat. 5. 39. If any man will sue thee 39 Mat. 5. 44. Love your enemies 43 Rom. 12. 17. Recompence to no man evil 46. 73 2 Cor. 10. 4. Weapons of our warfare not carnal 48 Eph. 6. 21. We wrestle not against flesh and blood 49 Jam. 4. 1. From whence came Wars 49 Exod. 22. 2. If a thief be found 68 Mat. 26. 52. Put up thy sword 69. 74 Lu. 22. 36. Buy a sword 72 Joh. 18. 8. Suffer these to go away 73 Deut. 17. 14. I will set a King over me 91 Jer. 25. 12. God judgeth Kings 96 2 Sam. 24. 17. What have the people done 98 Dan. 6. 8. Laws unchangeable 113 Psal. 72. 1. Judges Gods 119 1 Sam. 8. 11. Kings right 138 Rom. 13. 2. Whosoever resisteth 139 1 Pet. 2. To the King as supreme 148 1 Sam. 15. 30. Duty of Peers 148 1 Pet. 2. 13. Human ordinance 151 1 Sam. 22. 2. Davids armed men 152 1 Sam. 26. 9. No man can lay hands 154 1 Pet. 4. 13. Suffer as Christians 156 Mat. 10. 39. He that loseth his life 161 2 Chron. 23. Athalia dethroned 167 Jud. 3. 15. The Fact of Ehud 169 2 King 9. Jehu's fact 170 Matt. 22. 20. Tribute to Caesar. 170 2 King 18. 7. Ezechia submits 197 Gen. 1. 29. Mans right 198 Gen. 13. 21. Wells proper 202 Heb. 6. 18. Impossible for God to deceive 224 Jona 4. 1. God repents 225 Josh. 9. Joshua's Oath 226 Matt. 15. 5. Korban â—…0 233 1 Tim. 5. 3. To honour to 〈◊〉 231 Gen. 42. 15. By the life of Pharaoh 233 Mat. 23. 21. He that sweareth by the Temple ibid. Ezech. 17. 12. Oath to the Babylonian 236 Psal. 15. Having sworn to his hurt 238 Mat. 5. 34. Swear not at all 242 2 Cor. 1. 20. Yea and Amen 243 Deut. 23. 7. League with Idolaters 247 Deut. 22. 1. The Jewes neighbour ibid. 2 Chro. 16. 2. Ahazia did wickedly 251 2 Sam. 24. Davids muster ibid. Mat. 5. 45. He maketh his sun 252 2 Cor. 6. 14. What concord hath Christ 253 1 Cor. 10. 21. Ye cannot be partakers 245 Mat. 6. 33. First seek the Kingdom 255 1 Cor. 12. 18. Members of one body 256 2 King 18. Rabshake's message 279 Num. 25. 4. Hanged on a tree 303 1 Sam. 31. 4. Saul's death 307 Joh. 8. 7. Whosoever of you is without sin 311 Proverb God made all things for himself 313 Mar. 14. 21. It had been better 319 1 Joh. 5. 16. Sin unto death 320 Numb 25. Phine as zeal 327 Mat. 5. 44. Do good to enemies 329 Mat. 6. 14. Forgive all 331 Heb. 2. 23. Sins against the Gospel 334 1 Cor. 11. 3. Self-punishment ibid. Matth. 7. 1. Judge not 338 Lu. 23. 34. Pather forgive them 349 Mar. 10. 19. Defraud not 352 Heb. 11. 6. He that cometh to God 365 Lu. 14. 23. Compel them to come in 372 Gal. 4. 29. Persecuted him 378 1 King 14. Children of Saul 402 Deut. 24. 16. Not put to death children 404 1 Cor. 5. 12. Those that are without 417 Rom. 5. 6. Christ dyed for enemies 435 Jer. 27.
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quae ex consulto fiunt distinguit Totilas apud p ocop Got. 3. Deut. 19. 1. 23. 15. Exod. 21. 14. 1 Reg. 2. 29. 2 Reg. 11. 13. De spec leg †Pipin received and would not deliver those that sled to him out of Newstria opprest by tyranny Fredegarius in reb Pipini 1188. And Ludov cus Pius the Emperor received those that fled to him from the Roman Church as appears by his Decree Anno 817. Plutarch qu. Gr. 32. * Which Mariana ascribes to the Arragonians l. 20. 13. The Gep dae in Procopius had rather all perish than give up Ildigisales to the Romans Got. 4. †Aristid Panathen Idem alibi His quiâ—… locorum infelices sun ' communis eis una est felicit as bonitas civitatis Atheniensis per quam salutis compotes fiunt Apud Xenophoâ—… rent Patrocles Phliasius in orat quam Athenis habuit Laudabâ—… banc urbem quod omnes aut injuria affectos aut sibi praemetuâ—…s 〈◊〉 〈◊〉 fugissâ—…nt auxilii compotes fieri intellexeram Idem sensus est à Epistola Démosthenis pro Lycu gi liberis Et vide Sophoc 〈◊〉 diâ—… Col. * Advers Leocr. * Annal. 3. * Sophocles Ione Non enim tangi decet Manu nocente numina at justum fuit Piis patere Templa contra injurias In Lusitania Ferdinand Lord Chamberlain was taken by force out of the Church and burnt for forcing a noble Virgin Mariana lib. 21. Vide de Asylis librum Viri inagni Pauli Veneti Societatis servorum quae dicitur †Herod lib. 1. Livius lib. 22 lib. 37. †So Rudolphus 2. Emperour remov'd from him Christopher Sbovius Thuan. A. 1585. Q. Elizabeth answers the Scots that she would either render Bothwell or send him out of England Camden A. 1593. †As Simler relates in the League of the Helvetii with the Mediolanenses The Leagues of the English with the French appointed rebells and fugitives to be yielded with the Burgundians to be expelled Camden Anno 1600. * Sic Demophon ad Legatum Euristheos apud Sophoclem Si crimen istis aliquot hospitibus struis Jus impetrabis vi quidem binc non 〈◊〉 †Eadem dicit Chrysostomus de hac re in 17. de statuis In eosdem Antiochenos paria olim constituerat M. Antoninus Philosophus ut testis est Capitolinus in Byzantinos Severus demto Theatro thermis honore ornamentisque omnibus sed ipsa urbs Perinthiis data vide Herodian 2. Aristot. 7. pol. cap. 13. Orat. de seditione Antioch †Wherefore Julian in the praise of Constantius attributes to him another cause of war and saith No war accounted just was ever waged for such cause not by the Grecians against the Trojans nor by the Macedonians against the Persians For they pursued not old crimes with late punishment of the children but set upon those that injured the posterity of men wel-deserving 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. Flumina sect ult de dam. inf * Praeposterum esse ante nos locupletes dici quà m acquisâ—â—rimus L. pretia D. ad l. Falc Lib. 2. epist. 11. 19. L. cum ratio D. de bonis dam. * Sponde noxa praesto est * This is plain by the words of Ruben to Jacob Gen. 42. 37. and in Josephus 2. Antiq. c. 3. Hos vaâ—â—s 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 anima vicarios vocat Eâ—ropius Caligulâ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sponsores Diodorus Siculus in excerp Peirâ—sianis Chrysost. aâ— Gal. â— Sicut homine aliquo ad mortem damnato innocens alter pro illâ— se morti devovens illum supplicio liberat Augustin epist. 54. ad Macedonium Et aliquando qui causa fuit mortis potius in culpa est quam ille qui occidit Velut fi quispiam decipiat fideâ—ussorem suum atque ille pro isto legitimum supplicium luat * De qua vide Maimonidem directore dubitantium 3. 40. Epist. 3. in morte Nepot Epist. 105. L. Sancimus c. de poenis * Lib. 2. de leg special Idem lib. de piet Haud scio an possit ullum pejus induci institutum quam si nic malos è bonis genitos sequetur poena nec honos hahebitur bonis qui ex malis parentibus nati sunt Aliter lex quae de suis actionibus quemque judicat non ex cognatorum virtutibus laudat aut ex corâ—…dem vitiis punit †Josephus cals such a fact of Alexander King of the Jews exaction of punishment more than belongs to man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Lib. 2. 8. Victoria de jure bel n. 38. Graet Prov. He 's a fool that kils the father and spares the â—…hild †Sen. lib. 9. de ira c. 4. * Herod Call L. quisquis c ad t. Jul. Majest 2 Sam. 21. 1 Reg. 14. 2 Reg. 8. * So Rabbi Simeon Barsema very truly * So Chrysostom obseves and with him consentech Plutarch saying There is no sorer punishment than to see those which had their beeing from us to be miserable by our fault †Alexander apud Curtium 〈◊〉 7. Non oportebat vos scire quid de his statuissem quo tristiores periretis * Vide Plutarchum Pericle * Lib. 3. 43. †As libanius also saith some of them had been punisht others not yet but they shall not escape neither themselves nor their children He saith the like in another Oration set forth by Gothofred * And a publick detestation of the fathers crime like that of Andronicus Palaeologus the Emperour in Gregoras lib. 5. c 81. †Tertull. de Men Desivit uva acerba à patribus manducata dentes filiorum obstupefacere unusquisque enim in suo delicto morietur Deut. 24. 16. * Amaziah for example Joseph lib. 2. Philo de leg sp lib. 2. â—…soc Busir Dionys. lib. 8. †Who saith that custom was proper to the Romans to free the children from al punishment whose parents were delinquents The same is in a Law of the Wisigoths l. 6. tit 1. c. 8. †L. Crimen D. de poenis * Lib. 4. de nat Deorum †Philo commends these Laws in his book of Humanity L. Imperator Adrianus D. de sâ—…atu hominum L. praegnantis D. de poenis * Philo said it was the manner of tyrants together with the condemned to destroy five famimilies of neereâ—… relation See Herodian lib. 3. and the example at Milain when Galeatius was slain in Bezarus lib. 14. * He calls it an abominable Law Vide Concil Tolet. 4. * Simile reperies in C. in quibusdam de poenis †Philo of the subjects of the King of Egypt in Abrahams time saith All his family were partakers of the pain because none was displeasd at the unjust act but all by approbation were partakers of it Josephus where he relates the prophecy uttered against seroboam addeth The people shall be punisht too and be expeld out of that happy land and exiled beyond Euphrates for accompanying