necessity requires it For laws are wont and so they ought to be made by men with sense of humane imbecillity Now the law of which we speak seemes to depend upon their will whâ—… first consociate themselves into civill society from whom thenceforth a right flowes and comes unto the Rulers And these if they were asked whether their will was to impose upon all this burden to dy rather than in any case to repell by force the force of their superiours I know not whether they would answer it was their will unless perhaps with this additament if resistance cannot be made without very great perturbation of the Commonwealth or the destruction of very many innocent persons For what in such a circumstance charity would commend may be also I doubt not deduced into a humane Law One may say that rigid obligation to dy rather than ever to repell any injury of superiours proceedeth not from humane law but from divine But we must note Men at first not by divine precept but drawn of their own accord upon experience of the infirmity of divided families to defend themselves against violence closed together in the bond of civill society whence civill power hath its spring which therefore Peter calls a humane ordinance though elsewhere too it is called a Divine ordinance because God approved this wholsome institution of man But God approving humane law is supposed to approve it as humane and in a humane manner Barclay the most stour defender of Regall Power descendeth yet so farr as to grant the people and an eminent part thereof a right of defending themselves against immane cruelty when yet the same Author acknowledgeth the whole people to be subject to the King I do easily conceive the more value that is of which is conserved the more equity it is which give us an exception against the words of of the Law nevertheless indistinctly to condemn either single persons or a leâ—… part of the people which heretofore hath used the last safeguard of necessity so as to have respect in the mean time to the common good I scarce dare For David who except a few acts hath testimony of a life exactly conformed to the laws had about him armed men first four hundred and then a greater number to what purpose but to keep off violence if it should be offered But withall this is to be noted David did not this till after he had found both by Jonathan's discovery and by very many other most certain arguments that Saul sought after his life And then neither invades he Cities nor takes occasions of fighting but retreats and hides himself sometimes in the wilderness sometimes amongst other people and hath a religious care never to hurt his own Country Parallel to this may seem the action of the Maccabees For that some defend their arms upon this title as if Antiochus had not been King but an Invader I think it vain when the Maccabees and their followers in all the history never call Antiochus by any other but the name of King and rightly when long before the Hebrewes had acknowledged the Macedonian Power into whose right Antiochus succeeded As for that prohibition to set an alien over the people that Law is to be understood of voluntary election not of what the people was compeld to do drawn by necessity of the times And for that which others say that the Maccabees used the right of a people who had liberty to live by their own laws it is not firm neither for the Jews subdued first to Nebuchodonosor by the law of war by the same law were subject to the successors of the Chaldaeans the Medes and Persians all whose Empire devolved to the Macedonians Hence are the Jewes call'd by Tacitus The most vile part of those that serve while the East was in the power of the Assyrians Medes and Persians Nor did they covenant for any thing with Alexander and his successors but without any condition came under their dominion as before they had been under Darius But if the Jews were sometimes permitted to have open exercise of their Rites and Laws this was a precarious right arising from the favour of the Kings not from any law or condition annexed to the Government There is nothing therefore that can clear the Maccabees besides extreme and most certain danger to wit so long as they conteind themselves within termes of selâ—… defense so as to retire into devious places after David's example to secure themselves and not to enter into battaâ—… but when they were assaulted LXIX The King's Person Sacred MEan while this caution is to be observed even in such a danger the person of the King must be spared which they that think David did not out of any necessity of duty but out of some higher design are much mistaken For David himself plainly said No man can lay hands upon the King and be innocent Well he knew 't was written in the law Thou shalt not revile the Gods that is the highest Judges nor curse the Ruler of thy people In which law the speciall mention made of the eminent powers evidently shewes something speciall to be commanded Wherefore Optatus speaking of this fact of David saith He was hindred by a full remembrance of the divine commands And he puts these words into Davids mouth I was willing to orecome my enemy but that I chose rather to keep the Command of my God Now for evill words that are false it is not lawfull to cast them at a private person against a King therefore we must not use them when they are true For as the Writer of the Problems which bear Aristotles name affirmeth He that reproacheth the Ruler is injurious to the City And if the Ruler must not be offended with the tongue much less certainly with the hand whence we also read that David's heart smote him for violating the garment of the King so much did he apprehend the sanctitude of his person And not without cause For sith the highest power cannot but ly open to the hatred of many the Rulers person was with a peculiar fense to be secur'd The Romans made a Constitution that the Tribunes of the common people should be inviolable The Essenes had a saying that Kings are to be accounted sacred It is in Curtius that the nations which are under Kings reverence their Kings as Gods And Artabanus the Persian saith Amongst our many good Laws this is the best that the King is to be reverenced and adored as the Image of God the Saviour of all LXX Of Christian subjection T Is a greater question whether so much as was lawfull for David and lawfull for the Maccabees be allowed unto Christians whose Master so often commanding his disciples to undertake the cross seems to require a patience more exact Certainly where Superiours threaten Christians with death for religion sake Christ gives them
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
of Justice O Just peaceable King Crown your Majesty neerest to His as with all other happiness so with this also the procuring of a Just Universal Peace 1625. THE PREFACE OF THE AUTHOR THE Civil Law whether Roman or that which is proper to any other Countrey many Writers have attempted either to illustrate with Commentaries or in a more compendious way to propose unto their Readers But that Law which is between many Nations or their Rulers whether proceeding from Nature it self or constituted by divine precepts or introduced by customs and tacit agreement Few have touched None have hitherto handled universally and in a certain order when yet the Doing hereof is of much Concernment to Mankind For Cicero truly call'd this an excellent Science in Leagues Covenants and Agreements of several people Kings and forein Nations and in all Rights of War and Peace Euripides also prefers this science before the knowledge of divine and humane things 1. This Work is the more necessary because both in our age there are and in former times there have been some who so contemned this part of Right and Law as if it were onely an empty word and had no real existence That saying of Euphemus in Thucydides is almost in all mens mouths That nothing is unjust which is profitable to a King or Common-wealth having power Whereto that is like In the highest Fortune that is more right which is more prevalent And A Common-wealth cannot be govern'd without injury Adde hereunto that Controversies arising between Nations or Kings commonly have no arbitration but are determined by force Now this is not onely the opinion of the Vulgar that War is very far distant from all right and equity but even learned and prudent men do often let fall words favourable to that opinion For nothing is more frequent than Right and Arms opposed one to aother Old Antigonus derided one that presented to him a Commentary of Justice when he was assaulting Cities And Marius said He could not hear the Laws for the clashing of Armour That very Pompey of so bashfull a Countenance was bold to say What would you have me think on Laws now I am armed In Christian Writers many sayings of the like sense occur One of Tertullians may suffice instead of all Deceit rigour injustice are the proper businesses of wars All that are of this mind will no doubt object against us that in the Comedy These uncertain things if you seek to order by certain Reason you do but endeavour to be mad with Reason Wherefore seeing in vain is any Disputation of Right if there be no such thing it will pertain to the commendation and defence of our work that this very great Errour should briefly be refelled Now that we may not have to do with the Multitude let us allow them an Advocate and whom rather than Carneades who had attained to that which was the height of his Academy that he could put forth the strength of his Eloquence for Errour no less than Truth He therefore when he had undertaken to oppose Justice that especially of which we treat found no stronger Argument than this That Men had established for themselves various Laws with respect to their Utility according to their Customs and among the same Men often changed with the times That there is no natural Right or Law But that all Men and other living Creatures are carried by the guiaance of Nature to things profitable for them Wherefore there is no Justice or if there be any it is extreme Folly because it hurteth it self taking care for the benefit of others But what the Philosopher saith here and the Poet followeth That Nature cannot make any difference 'twixt right and wrong must not be admitted For Man indeed is an Animal but excelling all the rest and differing farther from them than they do from one another Which is confirmed by many Actions proper to Mankind And among these things that are proper to Man is the Appetite of Society that is of Community not of any sort but Quiet and according to the measure of his understanding Orderly with those of his own kind which the Stoicks call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What is objected then that every living Creature is by nature carried onely to its own profit so universally taken ought not to be granted For even some of the meer Animals in some sort restrain the desire of their own profit with a respect partly of their Issue partly of others of their own kind Which in them truly we think proceeds from some external intelligent principle because in other actions not more difficult than the former they do not discover such intelligence in themselves And the same is to be said of Infants in whom before all Discipline there shews it self a certain propension to do good to others prudently observ'd by Plutarch as also in that Age Compassion breaketh forth of its own accord But in a Man of perfect Age knowing to do like things in the like manner with an exceeding appetite of Society having Speech the peculiar instrument thereof as his priviledge above all other Creatures we must conceive there is an Ability of Understanding and Working according to general precepts and the things agreeable thereto belong not now to all living Creatures but are peculiar to humane nature Now this custody of Society which we have thus rudely expressed convenient to humane Understanding is the fountain of that Law which is properly called by such a name to which pertains Abstinence from that which is Anothers and if we have any thing of that sort or have gained by it Restitution Obligation to fulfill promises Reparation of Damage unjustly done and the Merit of Punishment amongst Men. From this signification of Law is derived another more large for because Man above other Animals hath not onely that social virtue which we mention'd but also judgement to discern what things delight or hurt not present onely but future and what things can lead to either it is convenient to humane nature according to the measure of humane understanding in these things also to follow a rectified judgement and neither to be corrupted with fear or the allurement of present pleasure nor to be transported with any impetuous rashness And that which is plainly repugnant to such a judgement is also conceiv'd to be against the Law of Nature to wit humane What we have now said would have some place though we should grant which cannot be granted without the highest sin That there is no God or That he hath no Care of humane Affairs the contrary whereof being implanted in us partly by Reason partly by perpetual Tradition and confirmed by many Arguments and Miracles testified in all Ages it follows that we must without exception obey God as our Maker to whom we owe our selves and all we have especially seeing he hath many waies declared his infinite
and all things are uncertain If there be no Community that can be conserved without Law which Aristotle proved by a memorable example of Thieves certainly that which binds Mankind and many Nations together hath need of Law as he perceiv'd who said Unhonest things are not to be done no not for ones Countrey Greatly doth Aristotle accuse them who when they would have no man govern among themselves but he that hath right have no regard of right or wrong toward Foreiners That same Pompey whom we named afore on the other part corrected this Speech of a Spartan King That Common-wealth is most happy whose bounds are terminated by the Spear and Sword saying That 's truly blessed which hath Justice for its bounds to which purpose he might have used the authority of another Spartan King who preferred Justice before Military Valour upon this ground because Valour must be govern'd by Justice but if all men were just there would be need of Valour Valour it self is defined by the Stoicks to be a virtue fighting for equity Themistius elegantly shews that Kings such as the rule of Wisdome requires have not a tender eye onely to one Nation committed to their trust but to all mankind being as he speaks not or Lovers of Romans but Lovers of Men Minos his name was hated among Posterity because he restrained equity to the bounds of his Empire But so far is it from Truth which some imagine that all Laws cease in War War ought neither to be undertaken but for the obtaining of right nor to be waged being undertaken but within the limits of Justice and Faith Well said Demosthenes War is against them who cannot be ruled by Judgements for Judgements prevail upon them who feel themselves weaker but against them who make or think themselves equal Arms are taken up which truly that they may be right are to be exercised with no less religion than Judgements are wont to be exercised Let the Laws then be silent among Arms that is those Civil Judiciary Laws which are proper to peace not those other Laws that are perpetual and accommodate to all times For it was excellently said by Dion Prusaeensis Written Laws indeed that is the Civil prevail not among Enemies but the not-written Laws prevail that is those that are dictated by Nature and established by the Consent of Nations This appears by that old Formula of the Romans I judge those things are to be requir'd by a pure and pious War The same antient Romans as Varro noted undertook Wars slowly not licentiously because they thought none but a pious War was to be waged Camillus said Wars are to be waged justly as well as valiantly Africanus That the People of Rome did both undertake Wars and finish them with Justice In another you may read There are Laws of War also as of Peace Another admires Fabricius a brave man and which is a rare thing innocent in War and one that believ'd an Enemy might be wrong'd What power the Conscience of Justice hath in Wars Historians frequently demonstrate often ascribing Victory to this cause especially Thence those common Sentences The Hearts of Souldiers rise or fall at consideration of the Cause He seldome returns in safety that fights unjustly Hope waits upon a good Cause and the like Nor ought any to be moved at the prosperous Successes of just Attempts For 't is sufficient that the Equity of the Cause hath a certain peculiar and that a great influence upon the Action though that influence as it happens in humane affairs is oft hindred in its efficacy by the intervention and opposition of other causes Also for the procuring of Friends which as particular persons so States have need of to many purposes much avails an Opinion and Fame of War not unwisely nor unjustly undertaken and piously managed For no man is desirous to joyn himself to such whom he supposeth to hold justice piety and faith in vile esteem When upon the grounds and reasons aforesaid I saw most clearly that there is among Nations a Common Law which availeth both to Wars and in Wars I had many and weighty causes to write thereof I saw through the Christian world such licence of going to War as even barbarous Nations may be ashamed of that men take Arms greedily for light causes or none at all which being once put on all reverence of divine and humane Right is put off even as if the Furies had commission given them to work all kind of mischief In contemplation of which immanity many good Men have gone so far as to deny all Arms to a Christian whose Religion consisteth chiefly in Charity toward all the world in which opinion seems to be sometimes both Johannes Ferus and my Country-man Erasmus great Lovers of Peace both Ecclesiastical and Civil but with that intent as I suppose wherewith we are wont to bend what is crooked to the other side that it may return into straitness Yet indeed this endeavour of too much contradiction is often times so far from being profitable that it hurts because it is easily found that excess in some sayings takes away authority for other even when they stand within the limits of truth Wherefore both Parties had need of a Moderator that it might appear Neither nothing nor every thing is lawfull And withall my Design was by my private study and diligence to advance the profession of the Laws which heretofore in publick Offices I had exercised with as much integrity as I could This comfort of my studies was left me after I was unworthily cast out of myown Countrey honour'd by so many Labours of mine Many before me have purposed to bring this into a form of Art but no man hath done it perfectly Nor is it possible unless which hitherto hath not been done with care enough the things which are by Constitution be rightly separated from Natural For Naturals because they are alwaies the same may easily be collected into Art but the things that come from Constitution because they are often changed and are divers in divers places are put without Art as other precepts of singular things Nevertheless if the Priests of true Justice would undertake to handle the parts of natural and perpetual Jurisprudence laying aside what hath its original from free will One of Laws another of Tributes another of the Judges Office another of the conjecture of Wills another of proving Facts thereupon might be composed a Body of all parts collected What course we thought fit to take we have shewed in deed rather than words this work containing that part of Juris-prudence which is by far most noble For in the first Book having first spoken of the Original of Right and Law we have examined that question Whether any War be just and lawfull After to know the difference 'twixt publick and private War we had to explain the nature of the Supreme Power what
Nature erroneously no doubt for many things in that proceed from the free will and pleasure of God which yet never is contrary to the true Law of Nature and so far is an argument rightly drawn thence while we distinguish accurately the Right of God which God sometimes executes by Men and the Right of Men among themselves We have therefore to our power avoyded both this errour and another opposite to it that thinks there is no use of the Old Covenant since the times of the New Our judgement is otherwise both upon that ground now mentioned and because such is the nature of the New Covenant that the things pertaining to virtue and good manners commanded in the Old ' the same or greater are commanded in the New And we see the Antient Christian Writers have used the testimonies of the old Covenant in thé same way But to understand the meaning of the Books belonging to the Old Covenant no little light may be borrowed from the Hebrew Writers those especially who throughly knew the Languages and the Manners of their own Countrey The New Covenant I use to this end that I may teach what cannot be learned elswhere what is lawfull for Christians which yet contrary to the opinion of many men I have distinguisht from the Law of Nature being assured greater Sanctimony is commanded us in that most Holy Law than the Law of Nature exacteth by it self alone Yet have I not forgotten to observe what is rather commended to us than commanded that we may know 't is impious and penal to decline from the precepts to aspire unto the highest perfection is the part of a generous mind and shall not go without reward Synodical Canons which are right are Collections out of the general sentences of the Law Divine fitted unto the present Occurrences These also either shew what the Divine Law commandeth or exhort to that which God perswades And this is the office of the true Christian Church to deliver those things which are delivered to Her from God and after the same manner wherein they are deliver'd Moreover the Customs among those old Christians who filled up the measure of so great a name either received or praised justly have the force of Canons Next to these is their Authority who flourished among the Christians in several Ages Men renowned for their Piety and Learning and noted for no grievous Errour For what these men say with great asseveration as certain ought to have no small moment for interpretation of things that seem obscure in Holy Scriptures and the more by how much greater is their Consent and nearer access to the times of the first purity when neither domination as yet nor any Faction could adulterate the Primitive Truth The School-men that succeeded the Fathers often shew what good Wits they had but they fell into unhappy times and ignorant of good Arts the less cause we have to wonder if among many things to be praised they have some things to be pardoned Yet when they agree in matter of morality they seldome erre having very clear eyes to perceive what was awry in the Sayings of other men Nevertheless in this contentious study they give us a commendable pattern of Modesty opposing one another with Reasons not which is a fashion of late times risen up to the disgrace of Learning with reproaches the unhansome issue of an impotent and unruly mind The Roman Lawyers are of three sorts First are they whose labours appear in the Pandect the Codes of Theodosius and Justinian and in the Novel Constitutions The second rank are they that succeeded Irnrius viz. Accursius Bartolus and a number of names more that a long time reigned in the Court. In the third place we have those who joyned polite Learning with the study of Law To the first I owe much for they do both often afford excellent reasons to demonstrate that which is of the Law of Nature and often yield testimony to the same Law and no less to the Law of Nations But thus that they as well as others often confound these names yea and call that the Law of Nations which is onely of some people and that not as on Agreement but which some have receiv'd by imitation of others or by chance Besides they often handle what is truly of the Law of Nations promiscuously and indistinctly with those things which are of the Roman Law as appears by the Title De Captivis postliminio That these things therefore might be discerned we have taken some pains The second sort incurious of Divine Law and of antient Historie was pleased to define all the Controversies of Kings and Nations out of the Roman Laws assuming now and then the Canons But these men also by the infelicity of their times were hindred from a right insight into those Laws being otherwise subtil enough to search into the nature of Right and Good whence it comes that they are often very good Authors of Law to be made even when they are bad Interpreters of Law made before But then chiefly are they to be heard when they bear witness to such a Custom that makes the Law of Nations of our times The Masters of the third order who confine themselves to the Roman Laws and expatiate either never or very lightly into that which is Common have scarce any use in our Argument Two Spaniards Covarruvias and Vasquius the latter with great liberty the other more modestly and not without exact judgement have joyned Scholastical subtilty with their skill in the Laws and Canons not abstaining from the Controversies of Nations and of Kings The French have been more studious to insert Histories in the same profession of the Laws amongst whom Bodin and Hottoman are of great name the former in a continued Work the latter in scatter'd Questions whose determinations and reasons will often furnish us with matter to examine In the whole Work I have proposed to my self three things to make the reasons of defining most evident to dispose in a certain order the matters to be handled and to distinguish perspicuously the things which seemed to be the same and were not I have abstained from things that are not of this Treatise as those that shew what is usefull to be done because they have their special consideration in the Politicks which Aristotle handles so judiciously and distinctly as to mingle nothing that is impertinent otherwise than Bodin hath done in whom this Art is confounded with the Art of our Law Notwithstanding in some places I have mention'd what is profitable but on the by and that I might distinguish it more plainly from the question of just He will do me injury that thinks I had an eye upon any Controversies of our Age either already up or like to rise For I profess sincerely as Mathematicians consider Figures abstract from Bodies so have I in treating of Right elevated my Meditations above all particular Actions As to the stile and manner
Rule of Moral Actions obliging to that which is Right We say Obliging For Counsells and other Precepts though right yet not obliging are not called Laws and Permission properly is not the Action of Law but the Negation of that Action unless as it obligeth some other not to hinder him that is permitted We said obliging to that which is Right not simply to that which is just because it pertains not to Justice only but to other vertues The best division of Law is out of Aristotle into Natural and Voluntary III. Of Naturall Law NAtural Law is the Dictate of right Reason shewing moral turpitude or moral necessity to be in some act by its convenience or disconvenience with the Rational Nature and consequently that it is forbidden or commanded by the Author of Nature God The Acts concerning which is â—…ant â—…uch a dictate are due or unlawfull of themselves and therefore are conceived necessarily to be commanded of God or forbidden By which note this Law differs not from humane only but from the Divine vo untary which doth not command or forbid what is by it self and in its own nature due or unlawfull but by forbidding makes the thing unlawfull and by commanding makes it due For the better understanding of Natural Law we must observe some things belong unto it not properly but reduct vely viz. the things whereto the Law Natural is not repugnant So are things called just which are without in justice Sometimes also by abuse of the word the things which Reason alloweth for honest and better than the opposite although they be not due and necessary are said to be of the Law Natural Observe farther this Law is not only conversant about things not subject to human pleasure but about many things also which are consequent to the Acts of Mans Will So the Will of Man introduc'd Dominion such as is now in use But that being introduc'd the law of Nature tells me 't is wickednes for me to take away without thy consent that which is under thy dominion Moreover the Law of Nature is immutable yet somtimes it comes to pass that in the Acts determined by that Law a seeming mutation deceivs the unwary when in truth the Law of Nature is the same but the matter about which it is is changed For example If my Creditor accounts the debt I owe him as received I am not bound to pay The reason is not because the Law of Nature is become more induâ—…gent requires me not to pay what I owe But because by the indulgence of my Creditor the debt is forgiven me So if God command a person to be slain or his Goods to be taken away it will not follow that Man-slaughter or Theft is lawfull which words include a Vice but the act is not Manslaughter or Theft which is done at his command who is supreme Lord of our Lives and Goods Lastly there are some things that do not simply but in such a state of affaiâ—…s belong to Natural Law as the common use of things was natural before Dominion was introduced and before positive Laws every man had right to get his own by force IV. Of the Law of Nature and Nations AS for that distinction extant in the Roman Law-Books between the immutable Law common to other Creatures with men cal'd the Law of Nature And that which is proper to men alone usually called by them the Law of Nations it is of very little or no use For no nature that hath not the use of general precepts is properly capable of a Law If at any time Justice is attributed to the brute creatures it is improperly for that there is in them some shadow and print of reason Whether the act it self determined by the Law of Nature be common to us with other creatures as the breeding up of our Issue or proper to us as the worship of God it is not in this respect material V. The proof of Natural Law A Thing is proved to be of Natural Law two ways à priori or à posteriori That way of proof is more subtil this more popular The proof is à priori if we shew the necessary convenience or disconvenience of any thing to the rational and social nature à posteriori if though not with full certainty yet very probably we conclude that to be a point of Natural Law which is receiv'd for such amongst all or at least the most civil Nations For an universal effect hath an universal cause and of so generall an opinion there can hardly be any other cause but sense it self which is called common But I said with good reason the more civiil Nations for as the Philosopher hath it What is natural we must judge by those in whom nature is least corrupt and not by the depraved VI. Of Voluntary Humane Law THe other kind of Law is Voluntary which draws its original from the will And this is either Divine or Humane Law We begin with Humane because more known And this is either Civil or of larger extent or of less extent than Civil The Civil Law is that which proceeds from the Civil power The Civil Power is that which rules the Common-wealth And a Common-wealth is a society of Freemen united for their common benefit The Law of less extent and that comes not from the Civil power though subject to it is various conteining the precepts of Fathers Masters and such like That of larger extent is the Law of Nations i. e. which by the will of all or of many nations hath received force to oblige I adde of many because there is scarce found any Law besides the Natural which is also called the Law of Nations common unto all Yâ—…a oft-times in one part of the world there is not the same Law of Nations as in another as we shall shew hereafter This Law of Nations is proved in the same manner with the unwritten Civill Law by continual use and the testimony of skilfull men And to this purpose Historians are of singular profit VII Voluntary Divine Law VOluntary Law Divine as the words at first sound inform us is that which hath its rise from the will of God whereby it is distinguished from Natural Law that may be also as we have said entituled Divine Here hath place that indistinct saying God wills it not because 't is just but 't is just i. e. due in Law because God wills it This Law was given either to mankind or to one people thrice to mankind presently after the creation again in the restauration after the floud lastly in that more sublime restauration by Christ. All these Laws doubtless oblige all men after they have sufficient notice of them VIII That the Law given to the Hebrews obliged not other Nations THe Hebrews were the only people in all the world to whom God peculiarly gave his Laws as Moses and the Psalmist tell them And certainly
of their own power Yet properly when a people is alienated the men themselves are not alienated but the perpetual right of governing them as they are a people So when the freed servant of a Patron is assigned to one of his children it is not the alienation of a freeman but he transcribes and makes away the right he had over another man Nor is that more firm which they say If a King hath gotten any people by War whereas he subdued them not without the bloud and sweat of his subjects they are rather to be taken for the acquest of the Subjects than of the King For haply the King maintain'd his Army out of his own private substance or out of the profits of that Patrimony which follows his principality for suppose a King hath but the usufruit of that very Patrimony as also of the right of governing the people which hath elected him yet are those fruits his own As it is declared in the civil Law that the fruits of an inheritance which is commanded to be restored are not restored because they arise not from the inheritance but from the Thing Wherefore it may come to pass that a King may have command over some people by a proper right so that he may also alienate them Strabo saith the Island Cythera lying over against Taenarus was by his own private right pertaining to Eurycles Prince of the Lacedemonians So King Salomon gave to Hirom King of the Phenicians twenty Cities not of the Cities of the Hebrews for Cabul which name is attributed to those Cities is seated without the Hebrew bounds Jos. 19. 27. but of those Cities which the conquered Nations enemies of the Hebrews had retained till that day and which partly the King of Egypt Salomon's father-in-Father-in-Law had overcome and given as a dowry to him partly Salomon himself had taken in for that they were not inhabited by the Israelites at that time is proved by this argument because after Hirom restored them then at last Salomon carried thither Colonies of the Hebrews So Hercules is read to have given to Tyndareus the Empire of Sparta taken in War upon these terms that if Hercules should leave any children it should be returned to them Amphipolis was given as a dowry to Acamas the Son of Theseus And in Homer Agamemnon promiseth to give Achilles seven Cities King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Justin saith of Darius He gave by Testament the Kingdom to Artaxerxes to Cyrus certain Cities whereof he was Governour So the successors of Alexander are to be thought every one for his part to have succeeded into that full right and propriety of ruling over the Nations which were subject to the Persians or else themselves to have acquired that power by the right of Victory Wherefore it is no marvell if they assumed to themselves a right of alienation So when King Attalus the Son of Eumenes had by his testament made the people of Rome heir of his Goods the people of Rome under the name of Goods comprehended his Kingdom too And after when Nicomedes King of Bithynia dying had made the Roman people Heir the Kingdom was reduced into the form of a Province XLIX Some highest Empires are not holden fully BUt in Kingdoms which are conferred by the will of the people I grant it is not to be presumed that it was the will of the people that an alienation of his Empire should be permitted to the King Wherefore what Crantzius notes in Unguinus as a new thing that he had bequeathed Norway by his testament we have no reason to disapprove if he respecteth the manners of the Germans among whom Kingdoms were not held with so full a right For wheras Charls the Great and Lewis the pious and others after them even among the Vandals and Hungarians have disposed of Kingdoms in their testaments that had rather the vertue of a commendation among the people than the force of a true alienation And of Charls Ado specifies the same that he desired his testament should be confirmed by the chiefest of France Whereunto that is like which we read in Livie that Philip King of Macedonia when he had a mind to keep Perscus from the Kingdom and in his place to advance Antigonus his Brothers Son visiteâ—… the Cities of Macedonia to commenâ—… Antigonus to the Princes Nor is 〈◊〉 material that the forementioned Lewâ—… is read to have rendred the City Rome to Pope Paschal seeing the Franks mighâ—… rightly render to the people of Rome that power over the City which they had received from the same people 〈◊〉 which people he did sustein as it Weâ—… the person who was Prince of the first order L. A further manifestation of the second caution THe truth of our foresaid note about distinguishing the height of power from the fulness of having it will appear in this that as many highest Empires are not so many not highest are held fully Whence it is that Marquessates and Earldoms are wont to be sold and disposed of by will more easily than Kingdoms Moreover the same distinction shews it self in the Protectorship whilst a King either by non-age or by disease is unable to manage his own power For in Kingdoms that are not Patrimonial the Protectorship belongs to them to whom the Publick Law or in defect thereof the consent of the people doth commend it in Patrimonial Kingdoms to them who are chosen by the Father or by the next of Kin. So we see in the Kingdom of the Epirots which arose from the peoples consent Aribas a Pupil-King had Tutors publikely appointed him and so had the posthume Son of Alexander the Great by the Macedonian Peers But in the lesser Asia gotten by War King Eumenes appointed his Brother to be Tutor to his Son Attalus So Hiero the Father reigning in Sicily ordained by his testament whom he pleased to be Tutors to his Son Hierom. Now whether a King be withall in his private right a Lord of Land as the King of Egypt was after the time of Joseph and the Indian Kings which Diodorus and Strabo speak of or be not this is extrinsecal to his Empire and perteins not to the nature of it wherefore it neither maketh another kind of Empire nor another manner of holding the same Empire LI. A third Observation LEt this be observed in the third place An Empire ceaseth not to be supreme although hee that is to rule promise certain things to the subjects or to God even suâ—… things as pertain to the way of ruling Nor do I now speak of keeping the natural and divine Law adde also that of Nations unto which all Kings are bound though they promised nothing but of certain rules to which without a promise they were not bound The truth of what I say appears by silimitude of a Father
of a Family who 〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government shall not thereby cease to have so far as may be in a Family supreme right therein Nor is the Husband deprived of marital power because of some promise to the Wise. I confess by this means the Empire is in some sort streightned whether the obligation ly upon the exercise of the act only or also directly upon the faculty it self In the first way the act done against promise will be unjust because as we shew elsewhere a true promise gives hima right to whom 't is made and in the other way it will be null by want of faculty Nor yet doth it thence follow that he that makes the promise hath any superiour for in this case the act is rendred null not by superiour force but in Law Amongst the Persians the King was Supreme and absolute adored as the Image of God and as Justin saith he was not changed but by death A King was he that to the Peers of Persia spake thus I have called you together that I might not seem to use only my own Counsel but remember it is your duty rather to obey than perswade Yet he took an oath at his entrance as Xenophon and Diodorus Siculus have noted and it was not lawful for him to change certain Laws made after a particular form The same is related of the Ethiopian Kings by Diodorus Siculus And by his relation the Egyptian Kings who no doubt as well as other Kings of the East had Supreme power were bound to the observation of many things but if they had done the contrary could not be accused living dead their memory was accused and being condemned they wanted solemn burial as also the bodies of the Hebrew Kings who had reigned ill were not buried in the royal Sepulchers an excellent temperament whereby both the highest power was kept sacred and yet by fear of a future judgement Kings were kept from breaking their trust That the Kings also of Epirus were wont to swear they would reign according to the Laws we learn of Plutarch in the life of Pyrrhus But suppose it be added If the King breaks his trust he shall be depâ—…sed Yet will not the power hereby cease to be the highest but the mannâ—… of holding it weakned by this condition and the Empire will be as it were temporary It is said of the King of Sabaeans that he was absolute and of a most free power but that he might be stoned if he went out of his Palace In like manner an estate of Land that is held in trust is an estate as well as if it were possessed in full dominion but it is holden for a time or at the pleasure of another And such a Commissory Law or condition may be annexed not only in the bestowing of a Kingdom but in other contracts for some Leagues too with neighbours we see are entred with the like sanction LII The fourth Observation FOurthly it must be noted Although the highest power be one and undivided by it self consisting of the parts above set down supremacy being added Yet may it sometimes happen to be divided either by parts which they call potential or by parts subjective So when the Roman Empire was one it often came to pass that one Ruler had the East another the West or that three divided the world between them And so it may be that a people choosing a King may reserve some acts to themselves and may commit others to the King with full right Yet is not that done as we have shewed already whensoever the King is bound up with certain promises but then we must conceive it to be done if either a partition be made expresly of which we have spoken afore or if a people yet free lay upon their future Kings a charge by way of an abiding precept or if a clause be added to signifie that the King may be compeld or punisht For a precept is from a superiour superiour at least in that particular which is given in precept and to compell is not alwaies the property of a superiour for also naturally every one hath a right to compel his debtor but is repugnant to the nature of an inferiour Parity therefore at least follows from coaction and so a division of the supremacy Against such a State as being double headed many allege many incommodities but as we have also said above in civil affairs there is nothing wholy without incommodities and Right is to be measured not by that which seems best to you or me but by the will of him whence right ariseth An antient example is brought by Plaâ—… in his third de legibus For when the House of Hercules had built Argâ—… Messena and Lacedemon the King were bound to keep their Governmenâ—… within the bound of prescribed Laws anâ—… whilst they did so the people were obliged to leave the Kingdom to them and their posterity and suffer none to take it from them And to this not only King and their own people have mutually 〈◊〉 venanted but Kings with other Kings and one people with another people and Kings with neighbourig States and States with neighbouring Kings have entred into Covenant and promis'd aid to 〈◊〉 other respectively LIII A further explication of the last note about division of power and mixture YEt are they much deceived who think the power of Kings divided when they will have some of their acts not accounted firm unless they be approved by the Senate or some such Assembly For the acts voided for want of such approbation must be understood to be cancelled by the Kings own command who ordained this by way of caution lest any thing fallaciously gained from him should pass under the notion of his true and deliberate will King Antiochus the third sent such a â—…escript to the Magistrates that they â—…hould not obey him in case he should command any thing against Law and Constantin published the like that Orphans and Widows be not constreined to come to the Emperours Court for Justice no not if the Emperours rescript â—…e shewed Wherefore this case is like to that of testaments which have a clause that no later testament shall be of force for this clause also makes it be presumed that the later testament proceeds not from the true will of the maker Nevertheless as this clause so that other by the Kings express command and special signification of his later will may be annulled Again I do not here use the authority of Polybius neither who refers the Roman Common-wealth to a mixt kind of Government which at that time if we respect not the doings themselves but the right of doing was meerly popular For both the authority of the Senate which he refers to an Optimacy and of the Consuls whom he will have to be like Kings was
subject to the people The same may be said concerning other writers of the Politicks who conceive it more agreeable to their design to behold rather the external appearance and daily administration of affairs than to weigh the right itself of the highest power LIV. True examples of the supreme power divided MOre pertinent is that which Aristotle hath written Between 〈◊〉 full Kingdom and a Laconical which is a meer principality some other species are interjected An example hereof as I suppose may be found in the Hebrew Kings for of these that they ruled in most things by the highest right I think it is impiety to doubt for the people desired such a King as their neighbours had but the Nations of the East were subject to their Kings in the most humble way And above we have noted that the whole Hebrew people was under the King And Samuel describing the right of Kings sufficiently shews that the people have no power left in themselves against the Kings injuries Which the Fathers do rightly gather from that of the Psalm Against thee only have I sinned Upon which place Hierom Because he was a King and feared not another And Ambrose Being a King he was in danger of no Laws because Kings are free from such bonds neither do any Laws bind them over to punishment being secured by their Soveraign power against man therefore he sinned not to whose restraint he was not obnoxious I see there is consent among the Hebrews that stripes were inflicted on the King offending against those written Laws exstant about the Kings office but those stripes among them had no insamy and they were of his own accord received by the King in token of repentance and therefore he was not beaten by an Officer but by one whom he was pleased to make choice of and at his own pleasure he was eased As to coactive punishments the Kings were so free from them that even the Law of excalceation as having in it something ignominious was not of force upon them The Hebrew Barnachmon hath a sentence exstant amongst the sayings of the Rabbins in the title of Judges No creature judgeth the King but the blessed God These things being so neverthelels I think some causes were exempted from the Kings judgement and remained in the power of the Synedry of LXX instituted by Moses at Gods command and by perpetual succession continued to the times of Herod Therefore both Moses and David call Judges Gods and judgements are called the judgements of God and Judges are said to judge not in the place of man but of God 〈◊〉 the matters of God are plainly distinguisht from the matters of the King where by the matters of God the mosâ—… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉 Gods Law The King of the Jews 〈◊〉 deny not exercised by himself certain capital judgements in which particulae Matmonides prefers him before the King of Israel which also is evinced by examples not a few both in the sacred Scripture and in the writings of the Hebrews Yet certain kinds of causes seem noâ—… permitted to the Kings cognizance viz. of the Tribe of the high Priest of the Prophet And hereof there is an argument in the history of the Prophet Jeremy whom when the Princes required unto death the King answered Behold he is in your power for the King can do nothing against you to wit in this kind of matters Yea and the person that for any other cause was impeached before the Synedry could not by the King be exempted from their judgement Therefore Hircanus when by power he could not hinder their judgement concerning Horod eluded the same by Art In Macedonia they that descended from Calanus as Calisthones in Arrian saith bare rule over that people not by force but by Law The Macedonians saith Curtius are accustomed to the Regal government yet are in a greater shadow of liberty than other nations For even the judgment of life and death was not in the Kings hand Of Capital matters saith the same Curtius by the old custome of the Macedonians the Army did enquire in time of Peace the Commons the power of the Kings prevailed no further than their authority could move There is in another place of the same Author another token of this mixture The Macedonians decreed according to the custome of their nation that the King should not hunt on foot without the attendance of his elect Princes or courtiers Tacitus relates of the Gothones They are now in greater vassalage under their Kings than other Germans nor are they yet depriv'd of all liberty For he had afore describ'd the principality by the authority of perswading not by the power of Commanding and after he expresseth a full Royalty in these words One commandeth without all exceptions not by a precarious right of governing Eustathius upon the sixt of the Odysses where the Commonwealth of the Phaeaces is described saith it had a mixture of Power of the King and of the States Something like it I observe in the times of the Roman Kings for then all matters almost went through the Royal hand Romulus reigned over us as he pleased saith Tacitus It is manifest at the beginning of the City Kings had all power saith Pomponius yet Halicarnassensis will have something excepted by the people even at that time But if we give more credit to the Roman Authors in some causes there lay an appeal from the Kings to the people as Senocâ—… hath noted out of Cicero's books de Republica out of the Pontifical books also and Fenestella shortly after Servius Tullus advanced to the Throne not so much by right as by the favourable breath of the people yet more abated the regal power For as Tacitus speaketh he establisht Laws which even the Kings themselves were to obey The less cause have we to wonder at that which Livy saith The power of the first Consuls differd from the regal in little more than that 't was annual Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm and in the first times of the Consuls For in certain affairs and those of the greatest moment the will of the people was a law if the Fathers would go before them with their authority and as it were prepare the bill which authority afterward the peoples power encreased was onely for a shew when the Fathers as Livy and Dionysius note began with their voices but the Assembly did what they pleased For all this in after times there remained somewhat of a mixture whilst as the same Livy speaketh the Government was in the hand if the Patricians that is of the Senate but the Tribunes that is the Plebeians had a share to wit a right of forbidding or interceding And so Isocrates will have the Athenian Commonwealth in Solon's time to have been an
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
is nothing profitable Here do some more truly I think than appositely to the meaning of the Apostles say these injuries are profitable to us because the patience shall not go without reward To me the Apostle seemeth to have considered the universal end proposed to that order which is the publique tranquillity wherein also is comprehended the peace of every one And truly 't is not to be doubted but that for the most part we attain unto this good by the publique powers for no man wisheth ill unto himself now the Rulers fecilitie consisteth in the felicitie of his subjects Let there be whom thou mayst rule said One. The Hebrews have a proverb If there were no Government one man would devour another alive Which sense is in Chrysostom too Unless Cities had Rulers we should lead a life more wilde than the wilde beasts not biting only but eating us one the other But if at any time Rulers are transported by too much fear or anger or other affections diverting them from the way that leaderh to tranquiility that is to be accounted among accidents less frequent and which as Tacitus saith are recompensed by the intervenience of better things Now Lawes content themselves with bearing a respect to what falleth out for the most part as Theophrastus said whereto is pertinent that of Cato No Law is perfectly commodious this onely is enquired if it be profitable to the greater part and in the main But the things that happen more rarely are notwithstanding to be bound up in common rules because although the reason of the Law in this speciall fact especially hath not place yet the reason abides in its generality whereunto the specials are to be subject For that is better than to live without rule or that the rule be left to every ones pleasure Seneca to the purpose better it was that even the just excuse of a few should not be accepted than that all men should attempt to make some excuse Here also hath place that speech of Pericles never enough remembred Thus I conceive that the Commonwealth which is well in the general is better for particular men than where private estates are flourishing and the publique is sick For he that hath his domestique fortunes wel settled his country being overthrown must needs fall with it But he whose private estate is decayed in a prosperous Commonwealth is thereby much more easily repaired Wherefore when the publique may sustain losses of particular men But particular men cannot make amends for the publique calamities why should we not all joyn together in maintaining the common Interest 〈◊〉 doing as you do while you are astonisâ—… at your private dammage betraying the Commonwealth The sense whereof is in brief express'd by Livy thus The Commonwealth being safe secures the private estates easily in vain shall you keep your own if you betray the publique Non among things concerning the publique the principal no doubt is that order which we have said of ruling and obeying and that cannot consist with a private licence of resisting I desire to explain this by a noble passage in Dio Cassius Truly I think it not becoming that the Ruler of a City should give place to his subjects nor is there hope of safety if they will command whose duty is to obey For consider what order will be in a family if the elder be despised by the yonger What method in a school if the learners care not for the teachers how can the sick recover their health if they will not in all things be obedient to their Physicians how can Seamen escape danger if the Saylors will not hearken to the commands of their Masters For by nature it is necessary and safe for men that some should govern and some be subject LXV The second proof out of S. Peter TO Paul let us add Peter as a fit companion his words are these Honour the King Servants be subject to your Masters with all fear not only to the good and gentle but also to the froward For this is thankworthy if a man for conscience toward God endure grief suffering wrongfully For what glory is it if when ye be buffeted for your faults ye shall take it patiently but if when ye do well and suffer for it ye take it patiently this is acceptable with God And when he confirmes this by the example of Christ. The same sense also is expressed in Clement's Constitutions in these words Let a servant fearing God bear a good affection to his Master though ungodly though unjust Two things are to be noted here First that the subjection due to masters even to the froward is also to be referd to Kings for that which followes built on the same foundation respects no less the office of subjects than of servants Second the subjection requir'd of us is such as carries with it patience of injuries So is it usually said of parents A gentle parent's dear Yet the ungentle bear And a youth that had long frequented Zeno's school being asked What he had learned there answerd To bear my Fathers anger Justin of Lysimachus Witâ—… a good coutage he receiv'd disgrace froâ—… the King as from his father And it 〈◊〉 in Livy As the hardness of parents so iâ—… that of our Countrey to be mollified by patience and sufferance It is said in tacitus The natures of Kings must be endâ—…red and again We must pray that we may have good Emperors and tolerate thâ—… bad LXVI Further proof from the examples of the antient Christians FRom this Law of our Lord the practice of the antient Christians the best interpreter of the Law departeth not For although very ill men often possessed the Roman Empire nor were there wanting who under colour of relieving the commonwealth oppos'd themselves against them yet the Christians never adjoyned themselves to their enterprizes In Clements's Constitutions we read It is unlawfull to resist the Royal power Tertullian in his Apologetique saith Whence are those Cassii Nigri and Albini Whence are they that set upon Caesar between the two laurels whence are they that shâ—…w their palestric art in stopping his breath whence are they that break into the palace armed bolder than all those Sigerii so the MS. plainly in the library of the most worthy Puteans and bolder than the Parthenit They were of the Romans unless I am deceiv'd i. e. of such as were not Christians That which he saith of the palestrick art pertains to the death of Commodus wrought by the hand of a palestrite at the command of the Prefect Aelius Laetus than which Emperour yet scarce any was more wicked Parthenius whose fact likewise is detested by Tertullian was he that had slain the Emperour Domitian To theâ—…e he compares Plautianus the Praetorian Prefect who designed to kill Septimius Severus a very sanguinary Emperour in his palace Against the same Severus took armes as on
and that two ways either for his punishment or for the publick good by vertue of supereminent dominion Hence also may be understood if the party swearing be not of the same country with him to whom the oath is made what his or the others Rulers may do concerning it But he that hath sworn and promised something to a nocent person as such namely to a pirate cannot therefore take away from him in the way of punishment the right which he hath gotten by the promise because then the words would have no effect which by all means is to be avoided XLV What oaths are properly meant in the charge of Christ against swearing HEre it is observable by the way that the words of Christ and of James against swearing do not properly belong to an assertory oath whereof are some examples in the Apostle Paul but to the promissory of a future uncertain thing This evidemtly appears by the opposition in the words of Christ Ye have heard it hath been said to them of old Thou shalt not forswear thy self but shalt render to God thy oath But I say unto you swear not at all and the reason given by James is this Lest ye be found deceitfull for that is the meaning there The same is proved by the words of Christ But let your Communication be yea yea nay nay which is exprest by S. James thus But let your yea be yea and your nay nay Where the first yea and nay signifies the promise the later its performance For yea is a word of promising whence it is explain'd by Amen Apoc. 1. 7. and of the same signification among the Roman Lawyers are the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and quidni in answer to a stipulation For the impletion of a promise it is taken in that place of Paul where he saith All the promises of God in Christ are Yea and Amen Hence the old saying of the Hebrews A just mans yea is yea and his nay is nay On the contrary whose deeds disser from their words with them is said to be yea and nay that is their yea is nay and their nay is yea So the Apostle himself expounds it for when he had denyed himself to have used lightness he addeth his speech was not yea and nay Now if yea and nay signify lightness it follows that yea yea nay nay signify constancy Christ therefore saith the same with Philo It is best and most prosâ—…able and to the rational nature most convenient to abstein from swearing and so to accustom ones self to veracity that ones word may be taken for anoath Josephus of the Essens Whatsoever they say is firmer than an oath and to swear is accounted among them a thing supersluous From the Essens or those Hebrews whom the Essens followed this seems received by Pythagoras whose sentence 't is Let no man swear by the Gods but every one take care of his credit that he may be believed without an oath The Scythians say of themselves to Alexander as Curtius relateth Think not that the Scythians confirm their friendship by oath they sweâ—… by keeping their word Cicero relates in his Oration for L. Cornelius Balbus When one at Athens who had lived amongst them in great repute for his gravity and sanctity had publickly given his testimony and approched to the Altars to make his oath all the Judges with one voyce reclamed and would not let him swear because they would not have it thought that truth depended more upon the religion of an oath than upon the word of an honest man With the saying of Christ well agrees that of Hierocles upon the golden verses He that in the beginning said Reverence an oath therein gave a precept to abstain from swearing about such things which may be done and not done and are of an uncertain issue For such things are little to be regarded and are mutable and therefore neither are they worthy of an oath nor is it safe And Libanius accounts it among the praises of a Christian Emperour He is so far from perjury that he is even afraid to swear the truth XLVI Of faith given without an Oath THerefore in many places in stead of swearing it was invented that faith should be bound by giving the right hand which was the firmest bond of faith among the Persians or by some other sign which was of that force that if the promise were not fulsilled the promiser was accounted no less detestable than if he had forsworn himself Principally of Kings and Princes it is a most usual saying Their word is as strong as an Oath For they ought to be such that they may say with Augustus Bonae sides sum My credit 's good and with Eumenes I will lose my life sooner than my credit Caesars right hand is praised by Cicero for firmness in keeping promises no less than valour in wars and battails and in the Heroical times the Scepter lifted up went for the Oath of Kings as Aristotle hath noted 3. Polit 14. XLVII OF LEAGUES They are lawfull with aliens from true Religion by the Law of Nature LEagues are Covenants or Agreements made by command of the highest powers wherein the parties are bound over to the divine wrath in case they break their faith It is a famous question Whether they may be enterd into with those that are aliens from true Religion which in the Law of Nature hath no doubt or difficulty for that Law is so coÌ„mon to all men that it admitteth not any difference of Religion But the question is about the Law Divine out of which it is discussed not by Divines only but by some Lawyers too and amongst them by Oldradus and Decianus XLVIII They are not universally forbidden by the Hebrew Law FIrst let us consider of the old Divine Law and after of the new It was lawful before the Law of Moses to contract a League with aliens from Religion for an offensive and harmless behaviour We have an example in the League of Jacob with Laban to say nothing now of Abimelech seeing it is not certain he was an Idolater Nor did the Law given by Moses make any change The Egyptians may be an example who were then no doubt Idolaters yet are the Hebrews forbidden to be averse from them The seven Nations are to be excepted condemnd by divine sentence whereof the Israelites were delegated to be the executioners For these persisting in their Idolatry and refusing to submit might not be spared to whom by divine decree were added the Amalekites Leagues of commerce also and such like perteining to the utility of both or of either party are by the Law permitted with the prophane for nothing is found to hinder them And we have the examples of Leagues which David and Solomon made with Hiram King of Tyrians and it is observable that in the sacred history
in force and the publick Laws ordained for the protection of men that none may take the liberty to revenge himself King Theodoricus Hence was the sacred reverence of Laws found out that nothing might be done by violent hands nothing by the impulse of a private spirit Howbe it the old natural liberty remains first 〈◊〉 places where are no judgments as on the Sea Whither perhaps may be referrd that act of C. Caesar who being yet a private man pursued the Pirats by whom he had been taken with such a navy as he could provide in hast and partly chased partly sunke their ships and when the Proconsul neglected to do justice upon the captives himself returning to Sea hanged them up The same will have place in deserts or where they live like the Nomades So among the Umbrici Nicolaus Dâ—…mascenus relates every one was his own Avenger which also is done done at this day among the Moscht some time after an address to the judge Nor had Duels and single Combats any other original which before Christianity were used by the German Nations and in some places are not yet enough disused Therefore the Germans in Velleius Paterculus wonder when they beheld the form of the Roman Jurisdiction that they ended injuries by justice that things wont to be decided by arms were determined by Law The Hebrew Law permits the Kinsman of one slain to kill the manslayer without the places of refuge and the Hebrew interpreters do rightly note that such a recompence for the dead may be required by force for one self as in a wound not unless by the judge because moderation is more difficult where a man 's own pain is urgent A like custom of privately revenging slaughter was among the most antient Greeks as appears by Theoclymenes words in Homer But most frequent are the examples hereof amongst them that have not any common judge Hence are just wars desined to be those that revenge injuries as Austin saith and Plato approves of force of arms until they that are in fault be compelled to give satisfaction to the innocent and wronged party LXXXVI The end of punishment is also the profit of All. THe utility of all sorts which was the third end hath the same parts with that which perteins to the wronged person For either this is the intent that he who hath wronged one may not wrong others which is brought to pass by destroying him or by weakning him or by binding him so that he may not be able to hurt or by amending him or lest others encouraged by his impunity be troublesome to any other persons which end is obtained by conspicuous punishments which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Latins exempla which are therefore used that the punishment of one may be the fear of many that by the kind of punishment others may be deterred as the Lawes speak that others may beware and fear as Demosthenes The power also of this Law is in every mans hand naturally Sâ—… Plutarch saith a good man is by nature designd a Magistrate and that perpetuall For by the very Law of Nature he is Prince that doth just things So Tully proves by the example of Nasica that a wise man never is a private man and Horace calls Lollius Consul not of one year Which sayings are nevertheless to be understood in a Commonwealth so far as the Laws thereof do bear Of this natural right Democritus He that 〈◊〉 a Theef or a Robber any way either by his own strength or by command or by suffrage is innocent And †Seneca When I shall command a malefactors head to be cut off I will be of the same mind and countenance as when I smite Serpents and venemous creatures But whereas both the inquisition of the fact often requires great diligence and the estimation of the penalty much of wisedom and equity lest while every one presumed too much of himself others not giving place contentions should arise therefore it pleased the just communities of men to make choice of the best and wisest such as they esteemed so or hoped would prove so The same Democritus The Laws would not have hindred every one to live after his own pleasure unless one had gone about to offend another For envy lays a ground for sedition But as above we said of revenge so in this exemplary punishment some footsteps and reliques of the old right do yet remain in those places and among those persons which are not under certain Jurisdictions and moreover in some excepted cases So by the custems of the Hebrews an Hebrew falling away from God and his Law or misleading any to false worship might presently be slain by any man The Hebrews call it the judgment of zeal which they say was exercised first by Phineas and thence grew into a custom Lo Mattathias killed a certain Jew polluting himself with Greekish rites So three hundred other Jews were slain by their Countrey-men as is related in the book commonly call'd the third of the Maccabees Nor was Stephen stoned upon other pretence or conspiracy made against Paul and many other examples of like sort are extant both in Philo and in Josephus Moreover among many people both to Masters over their servants and Parents over their children remained a full right of punishing them even to death So at Sparta the Ephori might put a Citizen to death without judgment Thus by what we have said may be understood what the right of Nature is touching punishments and how far it hath remained LXXXVII What the Evangelical Law hath constituted about this matter NOw must we consider whether the Evangelical Law hath more narrowly circumscribed that Liberty Surely as we have elswhere spoken it is no wonder that some things which by nature and the Civil Laws are Lawful are forbidden by Divine Law and that most perfect and promising a reward above human nature to the attaining whereof not undeservedly are requir'd vertues that exceed the meer precepts of Nature Castigations which do leave neither infamy nor permanent loss and are necessary in respect of age or other quality if they come from those hands which are permitted by human Laws to inflict them namely Parents Tutors Masters and Teachers have nothing repugnant to the Evangelical Precepts as we may sufficiently conceive by the nature of the thing it self For these are remedies for the mind not less innocent than medicines ungrateful to the sense Of revenge we must have another opinion For as it only exsatiats the mind of the offended person it is so far from agreement with the Gospel that as we have shew'd afore it is even naturally unlawfull But the Hebrew Law not only forbids hatred to be kept against the neighbour that is one of the same nation but also commands certain common benefits to be conferrd upon such enemies Wherefore the name of
that every 〈◊〉 would scape unpunished if it were sufficient in any manner to make profession of repentance God himself doth not always remit all punishment to the penitent as appears even by Davids example Wherefore as God might remit the penalty of the Law that is violent or otherwise immature death and yet inflict no small evils upon the offender so now also may he remit the punishment of eternal death and in the mean time either himself punish the sinner with immature death or be willing he should be so punished by the magistrat LXXXIX Another objection answerd about precision of repentance AGain others find fault that together with life space of repentance is also cut ost But these men are not ignorant that pious Magistrats have great care hereof and appoint not any one to to be executed without some time allowed wherein he may acknowledge his sins and seriously detest them Which kind of repentance though works intercluded by death follow not may be accepted by God as is proved by the example of the Thief crucified with Christ. If it be said a longer life might be profitable to a more serious repentance and amendment it may be answer'd Men are found sometimes such to whom that of Seneca may be spoken justly We will do you all the good that can now be done you 〈◊〉 put you to death And that also of thâ—… same Author There is but one way fâ—… them to cease to be evil that is to ceâ—… to be Likewise said Eusebius the Philosopher This then beside what hath been said in the beginning of our work be answer'd to them who would have either all or capital punishments without any exception forbidden Christians contrary to the Apostles doctrin who having included in the regall office the use of the sword as the exercise of Divine revenge in another place exhorteth to pray that Kings may be made Christians and as Kings be a protection to the innocent This cannot be obtain'd such is the improbity of a great part of men even after the propagation of the Gospel unless the boldness of some be repressed by the death of others and thus too among so many punishments and executions of the guilty innocency is hardly enough secured Nevertheless it is not amiss to propose to the imitation of Christian Rulers at least in some part the example of Sabacon King of Egypt for his piety very famous by whom Capital punishments with most happy success were commuted for tasks and malefactors condemned to work as Diodorus relates and Strabo saith there are some Nations neer Caucasus among whom the greatest offenders received not the sentence of death Nor is that of Quintilian to be despised No man will doubt but if wicked men may by any means be recalled unto a right mind as sometimes it is known they may it is better for the Commonwealth to save than to destroy them Balsamon notes that the Roman Laws which imposed penalty of death were most of them changed by the later Emperours being Christian into other punishments to the end a deeper impression of repentance might be made upon condemned persons and the continuance of the punishment might serve the more for example XC Three Inferences from the former Doctrine OUt of these things last spoken it may be collected how unsafe it is for a private Christian whether for his own or for the publick good to take punishment of any wicked man especially capital though we have said it is sometimes permitted by the Law of Nations Whence the manner of those people is to be commended amongst whom such as go to Sea have commission from the publick Power to pursue Pyrats if they find any that they may use the occasioâ—… given not as by their own adventure be publickly commanded Not unlike 〈◊〉 this is another custom receiv'd in many places that unto criminal accusations are admitted not all that please but certain men upon whom by publick authority that office is imposed that no man may do any thing at all tending to the shedding of anothers blood but by the necessity of his office Hither perteiâ—… the canon of the Eliberan Synod If any believer turn informer and by his accusation any be proscribed or put to deâ—…h Our decree is that he shall not no 〈◊〉 〈◊〉 the end receive Communion Lastly this also is understood by what hath been said that a man truly Christian is not well advised nor doth it become him to affect and thrust himself into publick Offices that have judgment of blood and think and profess it fit that power of life and death over his fellows should be committed to him as most excellent 〈◊〉 all and as it were a God among men For certainly what Christ admonisheth that it is dangerous to judge of others because such judgment as we give must we in like cases expect from God is not impertinent in this place XCI Whether human Laws that permit the killing of some men give the killers a true right before God or only impunity among men THis is a noble question and Covarruvias and Fortunius answer that such Laws give only impunity whose opinion is so displeasing to Ferdinandus Vasquius that he calls it an ungodly opinion No doubt as we have said elswhere the Law may do both in certain cases but whether it will or no is to be understood partly by the words partly by the matter of the Law For if the Law give indulgence to passion it takes away human punishment not the fault as in case a husband kill his Adulterous Wife or the Adulterer But if the Law respect the danger of future evill by delay of punishment it is to be conceived to grant right and publick power to a private man so that now he is not private Of this kind is that Law in Justinians Code under the rubric quando liceat unicuique c. Where every man hath licence given him to oppose force against plundering and pillaging Soldiers this reason being added For it is better to meet with them it time than to seek redress after the injury done We therefore permit you to defend avenge your selves and what is too late punished by judgment we suppress by edict that none spare a Soldier but use his weapon against him 〈◊〉 thief And the subsequent Law aboâ—… desertors saith Let ail men know thâ—… have power given them against publicâ—… robbers and desertors that run from thâ—… colours and all are ministers of publicâ—… revenge for the quiet of all To this purpose is that of Tertullian Against Trâ—…tors and publick enemies every man is a Soldier And herein differs the right 〈◊〉 killing exiles whom they call Banniâ—… from this kind of Laws because there precedes a special sentence here a general Edict the fact being evident obteiâ—… the force of a sentence pronounced XCII What acts are not punishable by men NOw let us see whether
place where Subjects do truly offend or where the case is doubtfull For to this purpose was ordained that distribution of Empires Notwithstanding where the injury is manifest where any Busiris Phalaris Thracian Diomedes executeth such things upon his Subjects that no good man can allow of there the right of human society is not praecluded So Constantin against Maxentius and against Licinius other Roman Emperors against the Persians took arms or threatned to take them unless they would abstein from persecuting the Christians for their Religion Yea supposing arms cannot no not in extreme necessity be taken rightly by Subjects whereof we have seen those to doubt whose purpose was to defend the regal power nevertheless will it not therefore follow that arms may not be taken by others on their behalf For as oft as a personal not real impediment is put against any action so oft may that be lawfull for one for anothers good which was not lawfull for that other if the matter be of such a nature wherein one may procure the good of another So for a Pupil whose person is uncapable of judgment the Tutor goes to Law or some other for one absent even without a mandate his Defendor Now the Impediment which prohibites a subject to resist comes not from a cause which is the same in a subiect and no-subject but from the quality of his person which passeth not into others So Seneca thinks I may war upon him who being divided from my Countrey troubleth his own as we have said when we spake of exacting punishment which thing is often joined with defense of the innocent We are not ignorant by reading of histories old and new that Avarice and Ambition hideth it self under these pretences but it doth noth not therefore presently cease to be a Right which is abused by evil men Pirates also go to Sea and Robbers use the sword CXXXIII Concerning Soldiers of Fortune MOreover as warly Societies enterd into with such a mind that aids are promised in every war without any difference of the cause are unlawfull so is no kind of life more wicked than theirs who without respect unto the cause are hired to kill men thinking There is most right where is most pay Which Plato proves out of Tyrtaeus This is that which the Aetolians were upbraided with by Philip and the Arcadians by Dionysius Milesius in these words Mercats are made of War and the calamities of Greece are a gainto the Arcadians and without regard of the causes arms are carried to and fro A miserable thing indeed as Antiphanes speaks That men should get their living by exposing themselves to death What is more necessary to us saith Dion Prusaeensis or what is more worth than life and yet many men are prodigal of this while they are greedy of money But this is a small matter to sell their own blood unless they did also sell the blood of other men that are oft-times innocent So much worse than the Hangman by how much worse 't is to kill without cause than with cause As Antisthenes said Hangmen are better than Tyrants because they execute the guilty these the guiltless Philip of Macedon the Elder said These men that get their living by making a trade of war esteem war to be their Peace and Peace their war War is not to be turned into an Art or profession being a thing so horrid that nothing can make it honest but the highest necessity or true charity as may be understood by what we have said afore It is not indeed in it self a sin saith S. Augustin to go to war but to go to war for the spoil is a sin Yea and for the stipend or pay if that alone be regarded or that chiefly when as otherwise it is very lawfull to receive pay for who goeth to war at his 〈◊〉 charge saith S. Paul the Apostle CXXXIV Of just Causes that wit may be waged by those that are under others command Who they are and what they should do where they are left free WE have done with them that are is their own power there are others in a condition of obeying as sons of families servants subjects and single Citizens if they be compar'd with the Body of their Commonwealth And these iâ—… they be called to debate or a free choice be given them to go to the war or to stay at home ought to follow the same rule with them that at their own pleasure undertake wars for themselves or others CXXXV What they should do when they are commanded to war and believe the cause of the war to be unjust BUt if it be commanded them to bear arms as it usually comes to pass What then Why truly if it be manifest to them that the cause of the war is unjust they ought by all means to abstein That we must obey God rather than men is not only a sentence of the Apostles but of Socrates too and the Hebrew-Masters have a saying That the King must not be obeyed when he commands any thing contrary to the Law of God Polycarpus said just before his death We have learned to give meet honour to the Empires and powers ordained of God so far as may consist with our salvation And S. Paul the Apostle Children be obedient to your Parents in the Lord for this is right Upon which place Hierom It is a sin for children not to obey their parents yet because parents might perhaps command somewhat amiss he added In the Lord. And he annexed this of servants When the Lord of the flesh â—…neth a thing divers from the Lord of the Spirit Obedience is not due And elswhere In those things only ought men to be subject to their Masters and Parents which are not against the Commands of God For the same Apostle also saith Every man shall receive a reward of his own worke whether he be bond or free Seneca Neither can we command all things nor 〈◊〉 servants perform They must not obey â—…s against the Commonwealth They must not lend their hand to any wickedness Sopater Obey thy Father If according to right well if otherwise not so Stratâ—…cles was irrided of old who propounded a Law at Athens that whatsoever pleased King Demetrius might be accounted pious toward God and just toward 〈◊〉 Pliny saith he laboured somewhere to make it evident That it is a crime to serve another in doing evil The Civil Law themselves which do easily give pardon to excusable faults favour those that must needs obey but not in all things for they except things which have atrocity which are heinous and wicked in their own nature as Tully speaks and not by the interpretation of Lawyers Josephus relates out of Hecataeus that the Jews which served under Alexander the Great could not be compell'd either by words nor blows to carry earth with the other soldiers to the repairing of
Lactantius saith The Romans did Legitimate their injuries by their power And Lucan's Jusque datum sceleri is of the same sense Law was given to wickedness XXVIII Of Strangers found in an Enemies Country THis Law of Licence is of large extent for first it comprehends not only them that actually bear arms or are subjects to him that maketh war but also all that are within the enemies Country which is manifest by the very form in Livy Let him be our Enemy and they that are within his guards For danger may be feard from them too which in a continued and universal war sufficeth to make way for that right of which we speak otherwise than in pignorations which as we have said after the example of burthens imposed were introduced for the discharge of publick debts wherefore it is no wonder if as Baldus notes much more licence be in war than in the right of pignoration And this which I have said hath no doubt indeed as to strangers who after the beginning and notice of the War come into the enemies quarters But they that went thither before seem by the Law of Nations to be accounted for enemies after some small time wherein they might have departed For so the Corcyraeans about to besiege Epidamnum first allowed strangers liberty to go away denouncing otherwise they should be taken for enemies XXIX The enemies subjects may every where be offended This right extends to Infants and Women to Captives and such as yield themselves without conditions BUt they that are truly subjects of the enemies to wit upon a permanent cause may be offended every where by this right of Nations if we respect their own persons For when War is proclamed against any one it is withall proclamed against all his men as we sheud above in the form of indiction and so in the decree Was it their will and pleasure war should be denounced against King Philip and the Macedonians which are under his Government Now he that is an enemy may every where according to the Law or Nations be assalted Enemies therefore may be slain on their own ground on the enemies ground on that that belongs to none on the Sea But that it is not lawful to kill or violate them in a peaceable territorie proceeds not from their own person but from his right who hath Empire there For civil societies might constitute that nothing should violently be done against men in such a Country unless according to process of Law And where the Law is open there are weighed the merits of persons and that promiscuous right of hurting ceaseth which we have said was introduc'd among enemies Livy relates that seaven Ships of the Carthaginians were in a Haven under the Syphax's dominion who had peace at that time both with the Carthaginians and Romans that Scipio arrived there with two ships and before he entred the Haven they might easily have been opprest by the Carthaginians but being born in with a strong winde before the Carthaginians could weigh anchor they durst not fight with them in the Kings Haven But to retutn how far that licence reacheth is hence understood that the slaughter of Infants too and women goes unpunished and is comprehended in this right of war I will not allege here that the Hebrews slew the women and children of Heshbon and that the same is commanded to be done upon the Canaanites and upon them whose cause was connexed with the Canaanites These are the works of God whose right over men is greater than that of men over beasts as we have said other where That comes neerer to shâ—…w the common custom of Nations that in the Psalm he is called blessed who shall dash the Infants of Babylon against the stones The Thracians of old as Thucydides relates having taken Micalessus put the women also and children to the sword Arrian tells the same of the Macâ—…donians when they had taken Thebes The Romans did the like at Iâ—…rgis a town of Spain as Appian saith Germanicus Caefar is said by Tacitus to have laid wast with sword and fire the Vi loges of the Marsi a people in Germany and it is added Neither 〈◊〉 〈◊〉 age mov'd compassion Titus proposed also the women and childrenâ—… of the Jews for a spectacle to be torn by wild-beasts And yet these two are supposed to have been of no cruel disposition So customary was that cruelty becom The less marvel 't is to hear of old men slain as of Priam by Pyrrhus Nor were Captives exempted from this licence Pyrrhus in Seneca according to the custom then receiv'd No Law spares a captive or hinders his punishment So the Corcyraeans slew the captives out of Epidamnum and five thousand captives were slain by Annibal A Centurion of Caesar's thus addresses himself to Scipio in Hirtius of the African war I give you thanks that you promise me life being your Captive by the Law of War Nor at any time is excluded the power of killing such as are taken in War as to the Law of nations though by the Lawes of Cities it is restrained in some places more in some less Moreover there are frequent examples of suppliants also slain as by Achilles in Homer in Virgil of Mago and Turnus which we see are so related that they are withall defended by that right of war which we have said For S. Augustin also praising the Gotths who had spared suppliants and such as fled to sanctuaries saith What had been lawful to be done by the Law of War they judged unlawful for them to do Nor are they always receiv'd thar yield themselves as in the battel at Granicum the Greeks that serv'd the Persian the Uspenses in Tacitus as yet free begging Mercy but the Victors would not hear saith he and so they fell by the Law of War Note here again the Law of War So also you may read they that yielded and were received without any condition were slain as the Princes of Pometia by the Romans the Samnites by Sulla the Numidians by Caesar and Vercingetorix yea this was almost the perpetuall custom of the Romans upon the Commanders of the enemies whether taken or yielded to kill them on the day of triumph as Cicero Livy Tacitus and many others teach us In the same Tacitus Galba commanded them to be decimated every tenth man slain to whom he had given quarter And Caecina having accepted Aventic yielding to him put to death Julius Alpinus one of the Princes as the raiser of the War the rest he reserved for the mercy or the cruelty of Vitellius XXX That right ill referd to other causes It reacheth also to hostages HIstorians are wont sometimes to refer the cause of killing enemies captives especially or suppliants either to talion or to pertinacy in resisting but these causes as we have elswhere distinguished are rather suasory
13. Serve the Babylonians 445 1 Cor. 9. 7. Who goeth to war 462 Act. 5. 9. Obey God rather 463 Deut. 17. The witnesses stone 470 Matt. 13. 29. Suffer the tares 479 Lu. 24. 28. He made as though 488 Act. 16. 3. Paul circumcised Timothy ibid. Jos. 8. Feigned flight 489 Col. 3. 9. Ly not one to another 490 Mat. 12. 36. Vain speech forbidden 504 Deut. 2. 24. Children and women slain 540 Deut. 7. 5. Abolish Idols 555 Deut. 20. 14. Spoil of enemies 559 Deut. 23. 15. Refuge for servants 570 Esay 58. 5. Restitution 578 Deut. 20. 14. Children and women spared 589 2 King 6. 22. Wouldst thou smite 595 2 King 3. 19. Trees of the Moabites cut up 607 Coll. 4. 1. Masters give unto your servants that which is just 623 Ephes. 6. To forbear threatning ibid. Exod. 21. 26. 27. Liberty due to a servant for a tooth injuriously struck-out 625 Exod. 23. 12. Work to be exacted of servants moderatly ibid. Deut. 15. 13. Servants after a certain time to be manumitted and not without gifts 628 Gen. 14. 16. He brought back all the goods 643 Gen. 14. 21. Give me the Persons and take the goods to thy self ibid. Luke 3. 14. Do violence to no man 645 Rom. 12. 18. As far as is possible and as much as in us lieth we must have peace with all men 659 An Alphabetical Table of the principal Matters A ABsolute Kings 113 Absolution 241 Accusations 338 Acquisition 558 Accidents of War 442 Acts internal 340 Admonitions 434. 575 Adherents 526 Adjutors 170 Agreements 269 Agrippa 28 Aid 257 Alienation 105. 109 Aliens 246 Amalekites 23 Ambition 422 Antiens 56 Antonius 82 Appâ—…ehension 513 Apostolical Canons 63 Apostates 62 Arguments from Moses Law 10 Army 106 Arms. 171 Arms of Subject 472 Arians 377 Arbitrators 429 Assignation 205 Associates 131 Authority 77. 92 Authors 82 B BArclaius 151 Barbarians 255. 356. 414 Benefit 421 Benignity 41 Bishops 60 Brasidas 263 Burial 293 C CAuses of War 173. 407 Cauchi commended 412 Carolus Molinaeus 187 Cain 18 Capital punishments 30 Caius Caesar. 80 Carthage 269 Campanians 88 Captives 541. 567. 594 Charity 453. 478 Christ. 46 Christ's actions 75 Christ's Precepts 24 Christ against swearing 242 Christ's Kingdom 418 Christian goodness 60 Christian Religion 370 Christian Soldier 65 Church-Empire 417 Chief of a league 129 Children 404. 589 Chastity 181 Civil power 83 Cities given 107 Civil War 277 Clients 125 Clemency 346. 438 Clergy 63 Commonwealth 141 Communion 199 Compromise 428 Community 394 Communication 396 Conversion of the Jews 38 Contumely 42 Constantine 58 Conjecture 262 Contracts 292 Controversies 127 Confederates 127. 257 455 Conference 427 Cornelius 33 Courts of justice 67 Covarruvias 186 Crimes 35 Cunning. 484 D DAnger 80. 210 David 152 Damages 274 Defense private 70 Defensive Arms. 152. 177 196 Desert places 218 Dead 300 Delinquent 318 Desertors 340 Deceit 491 Debts 511 Denouncing of War 527 Divorce 41 Dictators 93 Division of supreme power 115 Disgrace 185 Distinctions 263 Dissimulation 485 Dominion 198 Doubts 423 Duty 65 Duell 195 Due 421 E EAster 60 Edessa 28 Effects 534 Efficients 170 Election 101 Empire 29 Empire of One. 89 Empire over the Conquered 572 Embassadors 280 Embassages 276 Emperor universal 415 Ends of punishment 312 Enemies 301. 480 Equity 78 Errors in Religion 375 Evangelical Law 44. 192 252. 328. Evils of War 449 Examples of antient Christians 144 F FAthers 50 False Gods 234 Faith 245 Fals-speaking 497 Feudal obligation 132 Fear 196. 411 Fights needless 601 Force 67. 162 Form of Government 87 Foreiners 277 Fraud 505 Friends 455 Fruit-trees 606 Fugitive 508 Fulness of Power 109 G GArrison 543 Giving 73 God 45. 362 Gods mercy 334 Gods right 69. 479 Goods defended 188 Goods taken 562 Goods of Subjects 509 gospel-Gospel-Law 22 Government 95. 140 Guile 483 484 Guardian 40. 96 H HAbitation 218 Hebrew Common wealth 32 hebrew-Hebrew-Law 8. 10. 246 Hebrew Kings 118 Heir 238 Herald 285 Hercules 353 Hereticks 375 History Ecclesiastical 58 Highest Powers 77. 85 Hostages 542. 601 Human infirmity 342 Husbandmen spared 589 I IEst 501 Iews 153 Iewish soldiers 29 Ignorance 357 Impunity 193. 339. 535 Impost 215 Injury 39. 177 Inferiour powers 79. 147 Invader 165 Instruments 171 Infidels 253 Interpretation 259 Informer 338 Ingratitude 343 Innocent person 451 Infants 538 John Baptist. 29 Joshua's Oath 226 Joseph 500 Irreligion punished 367. 379 Justice 31. 174. 576 Judicial Law 31 Julianus Imp. 65 Judge 67. 338 Judgments 323 Judgment 424 Just on both sides 432 K KIlling 74. 166. 185 430. 581 King 89. 91 Kings subject to God 96. 119 Kings person sacred 154 Kings right 138 King expelled 272 Kingdoms given 109 L LAw 2. 141 Law natural 2. 214 352 Law of Nations 5. 320 516. 562 Law Evangelical 328 Law Mosaical 8. 333 Law human 6 Law divine 7 Law Civil 193. 206. 516 Law of war 561 Lawful 531 Lamech 19 Lands taken 562 Land new found 413 Leagues 246 247 Life 69. 71 Liberty 444 Liberty personal civil 104 Love of enemies 43 Lots 430 Lye 486 487 M MAgistrate 77. 79 Majesty 103 Maccabees 152 Matrimony 245 Malefactors 302 Maâ—…chees 377 Member 181 Merchandise 215 Messias 30 Military orders 53 Military Oath 59 Mixt government 117. 121 Moderation 581. 604 Moses 20 Monuments 296 Mutual subjection 98 Murtherers 547 Multitude spared 601 N NAvigation 217 Necessity 78. 149 207. 448. 476 Neighbour 44 Neighbour's power 197 Nicene Council 60 Notions 363 O OAth of Kings 113 Oaths 220. 504 Obedience 143. 157. 467 Obligation 32. 239 Obstinate resistance 599 Occupation 205 Offenses 350 Offenses against God 358 Offenders yielded up 385 Old men spared 589 Opinion 379 Ordinance 27 P PAul 34 Patience 40. 156 Pardon 45. 344 436 Parents 143 Passage 212 Pay 261 Partakers 380. 392 Permissions 32 Penitents 63 Peace 444. 448 Peace of the Church 65 Peril 71 Peter 74. 498 People 86. 93. 98 Perfidious 238 Penal Law 344 Persecution 373 Piety 368 Pity 331 Powers 47 Possession 170 Poyson 544. 545 Progress in infinitum 96 Principality 100 Princes 101 Propriety 102. 198 Precarious right 103 Protectorship 110 Protection 126 Promise of Rulers 112 Promising words 504 Principles of religion 362 Providence 365 Prophecies 420 Prest-soldiers 463. 471 Proclaming of war 522 Prey 560 Publick person 183 Punishment 309. 400 Pyrate 236 Q QUarrel 180 R RAvishing 551 Revenge 39. 69. 73. 314 Retaliation 42. 289. 598 Resistance 73. 139. 162 Recuperators 127 Religion 157. 360 Restitution 197. 210 Reward 273 Reprizals 414 Repentance 331. 335 Relaxation of Law 349 Receivers 384 Remission of punishment 438 Rituals 32 Right 134. 477 River 211 Right remitted 434 Royal family 85 Robbers 274 Romans 357 Ruler 142. 155 Rules of interpretation 264 Rules of prudence 442 S SAnctuary 60 Saguntines 81. 266 Sanedrin 119 Sacrilege 304. 403 Satisfaction 325 Sacred things 554 Scripture 375 Scythians 244 Sergius Paulus 28. 34 Scholars spared 589 Servants 88 Self defense 17. 182. 195 Sea common 204 Sense of an
See you not Learning in his Lookes See it more Liuely in his Bookes Tho. Cross Sculpsit THE ILLUSTRIOUS HVGO GROTIUS OF THE LAW OF WARRE AND PEACE WITH ANNOTATIONS III. PARTS AND Memorials of the Author's Life and Death 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 M. Antonin Imp. l. 9. LONDON Printed by T. Warren for William Lee And are to be sold at his shop at the signe of the Turks-head in Fleet-street M. DC L V. TO THE ENGLISH GENTRY WITH ALL DUE HONOUR TO THEIR WISEDOM AND VALOUR THIS WORK IS HUMBLY DEDICATED BY THEIR SERVANT THE TRANSLATOR TO THE READER THat This Book may obtein General Acceptance I have somewhat to say to every sort of Readers The Divine shall here behold the Evangelical Law shining above all other in the perfect Glory of Charity and Meekness The Gentlemen of our Noble Innes of Court shal here read the most Common Law that of Nature and Nations The Civilian may here observe some footsteps of the Goodly Body of his Law To the Statesman and the Soldier 't will be enough to see the Title of War and Peace The Philosopher the Poet the Orator and Historian shall here meet with the choicest Flowers gathered out of their spatious Gardens by a most skilful hand the hand of Him that was excellent in all these kinds of good Learning the Incomparable HUGO GROTIUS This Great Name as well as the Usefulness of the Argument we hope will commend the Book to every Ingenuous Reader to whose candid Censure it is in all humility submitted by C. B. The Author's Dedication to the most Christian KING THis Book Most Eminent of Kings is bold to bear Your Royal Name in the Front in Considence not of It self not of the Author but of the Argument Because it is written for Justice Which Vertue is so properly Yours that by your own Merits and by the Suffrage of Mankind You have thence received a Title most worthy of so Great a King being known every where now no less by the Name of JUST than of LUDOVIC The Roman Commanders esteemed the Titles very specious which were deriv'd from Crete Numidia Afric Asia and other conquer'd Nations How much more Illustrious is Yours whereby you are declared both the Enemy every where and all ways the Conquerour of no people of no man but of that which is Unjust The Egyptian Kings thought it a great matter if One were called the Lover of his Father Another of his Mother a Third of his Brother How small parts are These of Your Name which comprehendeth not only those things but whatsoever can be imagined fair and honorable You are Just when by Imitation of Him you honour the Memory of your Father a King Great above all that can be said Just when you instruct your Brother every way but no way more than by your example Just when you grace your Sisters with Highest Matches Just when you revive the Laws almost buried and as much as you can oppose your self against the declining Age Just but withal Clement when you take away nothing from your subjects whom Ignorance of your goodness had transported beyond the limits of their Duty beside the licence to offend and offer no Violence to Souls of a different perswasion in matter of Religion Just and withall Merciful when by your Authority you relieve oppressed Nations afflicted Princes neither permit Fortune to be too insolent Which singular Beneficence of yours and as neer like to God as human Nature suffers compells me on my own behalf also to make this publick thankfull Acknowledgment For as the Heavenly Stars do not only communicate their Influence to the greater parts of the world but vouchsafe it to every living Creature So you being the most beneficent Star on earth not content to raise up Princes to ease people have been pleased to be a safeguard and a Comfort even to me ill used in my own Country Here is to be added to fill up the Orb of Justice after your publick Actions the Innocency and Purity of Your private life worthy to be admir'd not by Men alone but by the Angels too For how Few of the Inferiour sort yea of those that have secluded themselves from the Fellowship of the world keep themselves so untoucht by all faults as You being placed in such a Fortune which is surrounded with innumerable allurements to sin And how Admirable a Thing is This among Business in the Throng in the Court among so many Examples of Those that sin so many ways to attain unto that which solitude scarce yea often not at all affordeth others This is indeed to merit even in this life not only the name of JUST but of SAINT which was given by the consent of pious men to Charles the Great Ludovic your Ancestors after their Death that is to be not by a Gentilitious but by your own proper right Most Christian. Now as every part of Justice is Yours so is that which concerns the Matter of this Book about the Counsells of War and Peace yours peculiarly as you are a King and King of France This your Kingdom is great which stretcheth it self to both Seas through so many spaces of so happy Lands but it is a greater Kingdom than This that You do not covet other Kingdoms This is worthy of Your Piety worthy of that eminency not to Invade the Right of any Other by your Arms not to remove antient Bounds but to do the Business of Peace in the time of War neither to begin War but with this Desire to bring it to a speedy end And How Brave How Glorious is This How Joyful to Your conscience that when God shal call you up to His Kingdom which alone is better than yours you may confidently say This sword have I receiv'd from Thee for the safeguard of Justice This I render to Thee pure and unstained with the blood of any man rashly shed Thus it shall come to pass that the rules we now look for in books hereafter may be taken from Your actions as from a most perfect Exemplar It is a very great matter This Yet doth the world of Christians dare to exact something more at Your Hands Namely that the Flames of War being every where extinguished not only Empires but Churches may see their Peace returning to them by Your procurement and that Our Age may learn to submit to the Judgment of That Age which All Christians profess to have been truly sincerely Christian The minds of Good men weary of Discords are raised to this Hope by the Friendship newly made 'twixt you the King of Great Britain a most wise Prince exceedingly studious of that Holy Peace and confirmed by the most Auspicious Marriage of your Sister Difficult is the Business by reason of Partial Affections inflamed and exasperated more and more but Nothing is worthy of so excellent Kings but That which is Difficult but That which is Despaird of by all others The God of Peace the God
Goodness and Power So that he is able to give unto those that obey him greatest Rewards and eternal being himself eternal and may be believed willing and much the more if he hath expresly promis'd it Which we Christians convinced by undoubted testimonies do believe This is now another fountain of Law beside that natural coming from the free will of God to which that we ought to be subject our own understanding doth irrefragably dictate to us Moreover that natural Law of which we have spoken whether it be the Social or that which is more largely so called though it proceedeth from principles internal to man yet it may deservedly be asscrib'd to God because it was his will that such principles should be in us in which sense Chrysippus and the Stoicks said The Original of Law came from no other Head but Jupiter Adde that God by Laws given hath made the said principles more conspicuous even to men of Weaker minds and those impetus and passions regarding our selves and others and drawing us several ways He hath forbid to wander regulating their vehemency and keeping them in compass And the sacred Historie besides that which consists in precepts doth not a little excite that social affection by shewing that all men are descended from the same first Parents so that in this sense may be rightly said what Florentinus said in another Nature hath made us all Kinsmen Whence it follows that 't is impiety for one man to be treacherous to another Among men Parents are as it were Gods to whom therefore not an infinite but a peculiar observance is due And further being it is a point of the Law of Nature to stand to Covenants for some way of binding themselves was necessary among men nor can any other natural way be imagined from this very fountain Civil Laws have flowed For they that had joyned themselves to any Assembly or subjected themselves to Man or Men had either expresly promis'd or by the nature of the business ought to be understood to have promis'd tacitly That they would follow what either the major part of the Assembly or Those to whom power was given had constituted Wherefore what Carneades and others say That Utility is even the Mother of Justice and Equity if we speak accurately is not true For the mother of Natural Law is humane nature it self which would carry us to a desire of mutual society though we wanted nothing but the mother of Civil Law is the very obligation by consent which having its vertue from the Natural Law Nature may be call'd the Grandmother of this Law also But to Natural Law Utility is added for the Author of Nature was pleased we should be weak singly and stand in need of many things usefull to our life that we might the more vigorously embrace Society To the Civil Law Utility gave occasion for that consociation or subjection aforesaid began to be ordained for some Utilities sake And they that prescribe Laws to others are wont or ought to respect some Utility therein But as the Laws of every Common wealth respect the interest and profit of the same so between Common-wealths either all or most some Laws may have arisen from Consent and it appears they have arisen which might respect the Interest not of several Societies but of the Whole And this is that which is call'd the Law of Nations as oft as that name is distinguisht from Natural Law Which kind of Law Carneades omitted distributing all Law into Natural Law and the Civil Law of single Nations when yet being to treat of that Law which is common to Nations one with another for he added a discourse of War and things got by War he ought by all means to have mentioned the same And it is another errour of Carneades to traduce Justice by the name of Folly For as by his own confession the Citizen is not a fool who follows the Civil Law in the Common-wealth though for his reverence unto it he must omit some things profitable to himself So neither is that people foolish that value not so much their own Interest as to neglect therefore the Common Law of Nations The reason is the same in both For as a Citizen who breaks the Civil Law for his present Commodity breaks that wherein his own and his posterities perpetual benefit is contain'd Even so a people violating the Laws of Nature and Nations destroy the muniments of their own Tranquillity for the future Again though no profit were expected out of the observation of Law yet were it a point of Wisdome not of Folly to be carried unto that to which we feel our selves directed and enclined by our nature Wherefore neither is that which one hath in Plato Laws were found out through fear of receiving injury and Men are forcibly drawn to advance justice universally true For that pertains onely to those Institutes and Laws which are invented for the more facile execution of Law as Many weak of themselves that they might not be opprest of the stronger conspir'd to institute and by united force to maintain Courts of Justice that all together might prevail against those they could not match single And in this sense may that Saying be well taken Law is that which pleaseth the Stronger conceiving Law to want its external end unless it have Force to back it as Solon did very great matters joyning Might and Right together as he said himself Yet doth not Law though destitute of Force want Effect altogether for Justice brings security to the Conscience Injustice torments and tearings such as Plato describes in the breasts of Tyrants Besides the consent of honest man approves of Justice condemns Injustice And which is the greatest of all this hath God for an Enemy that for a Friend who doth so reserve his judgements after this life that he often too represents the power of them even in this life as Histories do shew by many examples Now whereas Many require not that justice in a State or Governour which they exact of private Men the Cause of that errour is first in that they consider nothing in the Law but the Profit arising thence Which is evident in single Citizens unable to defend themselves but great Cities and States seeming to contain all things in themselves which are needfull for the well supporting of life seem not to have need of that virtue that looks abroad and is called Justice But not to repeat what was said that Law was not onely provided for profits sake there is no Common-wealth so strong that may not sometime stand in need of help from without either for commerce or also for repelling the Forces of many forein Nations united together against it Whence we see the most potent States and Kings have desired Leagues all virtue whereof is taken away by those that confine Law within the bounds of a City It is most true Take away Law
of speech I was not willing by adding a multitude of words to the multitude of matter to cloy my Reader whose Good I intended I have therefore followed as near as I could a concise and plain way of expression convenient to a Teacher that such as have a hand in publick Affairs may here behold as in one view both what Controversies are usually incident and what are the Principles whereby they may be judged which being known it will not be difficult to accommodate that which is said to the subject matter and to extend it as much as you will I have sometimes alleged the very words of antient Writers where they were such that they might seem spoken with authority or with a singular grace which I have done in the Greek too now and then but especially where either the sentence was short or whose Elegancy I could not hope to equal by my translation To conclude the Liberty I have taken to my self in judging the Sentences and Writing of other men let All I humbly intreat them into whose hands this Book shall come take the same to themselves upon me They shall not more readily admonish me of any errour than I will obey their admonition And at this instant if here be any thing spoken by me diffentaneous to piety or good manners or holy Scripture if any thing against the Consent of the Christian Church or against any Truth with all my heart I wish it never spoken I. Of the Lawfulness of War II. Of the Causes of War III. Of what is lawfull to be done in War THE CONTENTS I. PART I. WHat is War pag. 1. II. What is Law 2 III. Of Natural Law 2 IV. Of the Law of Nature and Nations 5 V. The proof of Natural Law 5 VI. Of Voluntary humane Law 6 VII Voluntary Divine Law 7 VIII That the Law given to the Hebrews obligeth not other Nations 8 IX What Arguments Christians may deduce from Moses Law and How 10 X. That War is not against the Law of Nature 12 XI Further proof out of the Sacred Historie 15 XII That War is not contrary to the Voluntary Divine Law before the time of the Gospel 17 XIII Of the Gospel-Law 22 XIV That War is not against the Gospel-Law The first Argument 25 XV. The second Argument 27 XVI The third Argument 29 XVII The fourth Argument 30 XVIII The fist Argument 31 XIX The sixt seventh and eighth Arguments 33 XX. The ninth tenth and eleventh Arguments 35 XXI Objections answered The first 37 XXII The second Objection answered 38 XXIII The third Objection answered 43 XXIV The fourth Objection answered 46 XXV The fift sixt and seventh Objections answered 48 XXVI Of the opinion of the Antient Fathers The first Observation 50 XXVII The second Observation 53 XXVIII The third Observation 54 XXIX A Confirmation of the Lawfulness of War out of the Antients 56 XXX Further proof out of Ecclesiastical Historie 58 XXXI The twelfth Canon of the Nicene Council objected and answered 60 XXXII Leo's Epistle objected and answer'd 63 XXXIII The last proofs out of Church-story 64 XXXIV That all private War is not unlawfull by Natural Law 66 XXXV Nor by the Law Evangelical Objections proposed 69 XXXVI The lawfulness of Private Defence confirmed 71 XXXVII The Objections answer'd 72 XXXVIII Publick War solemn or less solemn 76 XXXIX Of War waged by inferiour Magistrates 79 XL. Wherein consisteth Civil Power 83 XLI What Power is Highest 84 XLII That the Highest Power is nâ—… alwaies in the People 86 XLIII The same further proved 90 XLIV Arguments to the contrary answered 9â—… XLV Of mutual Subjection 9â—… XLVI Cautions for the understanding of the true opinion The first 9â—… XLVII The second Caution 10â—… XLVIII That some highest Empires are holden fully that is alienably 10â—… XLIX Some highest Empires are not holden fully 109 L. A further manifestation of the second Caution 110 LI. A third Observation 111 LII The fourth Observation 114 LIII A further explication of the last note about division of Power and mixture 116 LIV. True Examples of the Supreme Power divided 118 LV. Whether he can have Supreme Power that is comprehended in an unequal League 123 LVI An Objection answered 126 LVII Another Objection answered 129 LVIII That the Highest Power may consist with paying of Tribute 132 LIX That the Highest Power may be holden in Fee ibid. LX. The Right and Exercise of it distinguished 134 LXI Of the War of Subjects against their Superiours The question stated 135 LXII By the Law of Nature War upon Superiours as such is not ordinarily lawfull 136 LXIII Nor is it allowed by the Hebrew Law 138 LXIV Least of all by the Evangelical Law The first proof out of St. Paul 139 LXV The second proof out of St. Peter 143 LXVI Further proof from the Examples of the antient Christians 144 LXVII It is not lawfull for the Inferiour Magistrates to make Waâ—… upon the Highest 147 LXVIII In case of extreme and in evitable Necessity what may bâ—… done 149 LXIX The King's Person sacred 154 LXX of Christian Subjection 156 LXXI The famous example of the Thebaean Legion 158 LXXII In what cases Force is lawfull against a Prince 16â—… LXXIII How far we must obey aâ—… Invader of anothers Empire 16â—… LXXIV Whether it be lawfull to kill an Invader or expell him by force and in what cases 166 LXXV Who may lawfully wagâ—… War 170 II. PART I. WHat are called the Justifiek Causes of War 173 II. Three just Causes of Wars 176 III. War is lawfull in defence of life onely against an Assailant and in present certain danger 177 IV. Of the loss of a member and defence of Chastity 181 V. Defence may lawfully be omitted 182 VI. Defence is unlawfull sometimes against a Person very profitable to the Publick 183 VII It is not lawfull to kill another for to avoyd a box on the ear or the like disgrace 185 VIII In defence of Goods to kill a man is not unlawfull by the right of Nature 188 IX How far the same is permitted by the Law of Moses ibid. X. Whether and how far it is permitted by the Evangelical Law 192 XI Whether the Civil Law permitting one to kill another in his own defence give a right or onely impunity 193 XII When a single Combat may be lawfull 194 XIII Of Defence in Publick War 195 XIV It is not lawfull to take Arms to diminish a Neighbours power 196 XV. Defensive War also is unjus on his part who gave just cause oâ—… War ibid XVI The Rise and Progress of Propriety 198 XVII Some things cannot be madâ—… proper as the Sea taken for the whole or principal parts and why 204 XVIII Of things that may be made proper 205 XIX Over things made proper men have a right to use them iâ—… time of necessity and whence iâ—… comes 20â—… XX. Three Cautions to be applyed to this case of necessity 209 XXI An example of this right in Wars 210
had not been introduced for life members liberty would yet be proper to every one and therefore could not without injury be invaded by any other And to make use of what is common and spend as much as may suffice nature would be the right of the occupant Which right none could without injury take away This is more plain since by Law and use Dominion is established which I will express 〈◊〉 Tullies words If every member shoulâ—… think to gather more strength by drawing to it self the strength of the member next it the whole body must needs 〈◊〉 weakned and destroyed So if every one of us snatch unto himself the commodities of other men and draw away from every one what he can to advantage himself humane society cannot stand Nature gives leave to every man in the acquisition of things usefull to supply himself before another but by the spoili of another to encrease his own store that nature doth not permit It is not then against society to provide for one self so that anothers right be not diminished nor is that violence unjust which doth not violate the right of another as the same Author saith Of the two kinds of contention by debate and by force the one agreeing to men the other more becoming beasts we must fly unto the later when the former will not serve And elsewhere What is there that can be done against force but by force Ulpian saith Cassius writes that it is by nature lawfull to repell force by force and arms by arms XI Further proof out of the sacred History that all War is not against the Law of Nature THis is further proved out of the sacred History For when Abraham having armed his servants and friends pursued the four Kings that had spoiled Sodom and returned with victory God by his Priest Melchizedeck approv'd his action Blessed be the most high God said Melchisedeck who hath deliver'd thine enemies into thine hand Abraham as appears by the story had taken Arms without any special commission from God therefore the Law of Nature was his warrant whose wisdom was no less eminent than his sanctity even by the report of aliens namely of Berosus and Orpheus The History of the seven Nations whom God gave up to be destroyed by the hand of Israel I shall not use because there was a special mandate to execute Gods judgement upon people guilty of the greatest crimes Whence in the Scripture these VVars are properly called the VVars of God undertaken by his command not by humane Counâ—…el It is more pertinent that the Hebrews under the conduct of Moses and Joshua when they were opposed by the Amalekites repulsed them by Armies The Action was not set upon by Gods command yet was it approved by him after it was done Moreover God hath prescribed to his people general and perpetual Laws of waging VVar thereby shewing VVar may be just even without his special mandate For he doth plainly distinguish the cause of the seven Nations from the cause of other people and prescribing nothing about the just causes of entring into VVar thereby shews them to be manifest enough by the light of nature as tâ—…e cause of defending the frontiers in the VVar of Jephtha against the Ammonites and the cause of Embassadors violated in the VVar of David against the same It is also to be noted which the divine writer to the Hebrews saith that Gedeon Baruc Sampson Jephtha David Samuel and others by Faith overthrew Kingdoms prevailed in VVar put to flight the Armies of Aliens Where in the name of Faith as we learn by the series of that discourse is included a persuasion whereby is believed that the thing done is pleasing unto God So also the wise woman saith of David that he fought the battails of God that is pious and just XII That War is not contrary to the voluntary Divine Law before the time of the Gospell THe greatest difficulty lies in this point concerning the positive Divine Law Nor may any object the Law of Nature is immutable and therefore nothing could be constituted by God to the contrary for this is true in things commanded or forbidden by the Law of Nature not in things permitted only which things being not properly of the Law of Nature but without it may be either forbidden or commanded First then against VVar is brought by some that Law given to Noah and his posterity And surely saith God Your blood of your lives will I require at the hand of every beast will I require it and at the hand of man at the hand of every mans Brother will I require the life of man Who so sheddeth mans bloud by man shall his blood be shed for in the image of God made he man Here do some most generally understand that which is said of requiring blood and what is said of shedding blood for blood they will have to be a commination not an approbation I can allow of neither for the prohibition not to shed blood is not of larger extent than that in the Law Thou shalt not kill and this 't is manifest hath neither taken away capitall punishments nor VVars VVherefore both this Law and that doth not so much constitute any new thing as declare and repeat the old naturall Law obliterated and depraved by evill custom And the words are to be understood in a sense which includes a crime as in the worâ—… homicide we understand not every killing of a man but that which is on purpose and of an innocent person The which follows of shedding blood for blood seems to me not to contain a naked act but a Right I explain it thus By nature it is not unjust that every one suffer as much evill as he hath done 〈◊〉 of a sense of this naturall equity 〈◊〉 accus'd of paricide by his own conscience said Whosoever findeth me she flay me But God in those first times either by reason of the paucity of men or because there being yet but few offenders exemplary punishments were 〈◊〉 necessary repressed by his edict thâ—… which seemed naturally lawfull and appointed the manslayers company to be avoided not his life taken away The like was decreed by Plato in his Laws and of old practized in Greece Pertinent is that of Thucydides Antiently great crimes had little punishments but in progress of time those being contemned death was inflicted From one notable act a conjecture being made of the divine pleasure went into a Law so that Lamech also upon the like crime committed promised to himself impunity from that example Nevertheless when before the floud in the Gyants age a promiscuous licence of shedding blood had prevailed mankind being again restored after the floud God to restrain that licence thought it meet to use more severity and laying aside the lenity of the former times permitted now what nature did before dictate not to be
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
Zabdas the thirtieth Bishop of Hierusalem and shewed forth an example of Christian constancy and patience memorable to all posterity which we shall relate hereafter Here it may susfice to set down that speech of theirs which with solid brevity expresseth the Duty of a Christian Souldier We offer against any enemy in the world these our hands which we think impiety to embrue with the bloud of innocent men These our hands are expert to fight against wicked men and enemies they know not how to cut in pieces pious men and those of our own Country We have not forgotten that we took up Arms for our Countrymen not against them We have alwaies fought for justice for piety for the safety of the innocent these have been hitherto the price of our perils We have fought for Faith which how shall we keep with yon they speak to the Emperour if we preserve it not with our God Basil of the more antient Christians thus The slaughters made in War our Ancestors accounted not for slaughters having them excused who draw the sword on behalf of piety and vertue XXXIV That all private War is not unlawful by natural Law THat some private War may be lawfully waged as to the Law of Nature appears sufficiently by what hath been said above when we shewed it is not repugnant to the Law of Nature to repel force by force and defend ones self from injury But haply some may think it now unlawful since the constitution of publick Courts of Justiee for although these Courts be not from nature but from humane Ordinance yet seeing it is much more honest and becomming and more conducible to mans quietness that the matter should be tryed before an indifferent Judge than that the parties themselves interessed who too often favour themselves overmuch should execute what they think right by force equity and natural reason dictate to us that it is our duty to observe so laudable an Institution Paulus the Lawyer saith It is not to be granted to the parties to do that which may be done publickly by the Magistrate lest it be an occasion of making a greater tumult And the King Theodoricus Hence it is that the reverence of the Laws was found out that nothing might be done by force nothing by ones own impulse For what difference between the clamness of Peace and the confusion of War if controversies be determined by force The Laws call it force as often as any man requireth that which he thinks due unto him not by course of Law Certainly it must be confessed the licence permitted before the constitution of Courts of Justice is much restrained since And yet since it sometimes taketh place namely where publick Justice is wanting for the Law forbidding a man to seek his own otherwise than by course of Law ought commodiously to be understood with this clause where Law and judgement may be had Now this is wanting either at the instant or for continuance at the instant as where the Judge cannot be waited for without certain peril and loss for continuance either by right or by fact By right if one be in places unpossest as on the Sea in a desert in void Islands and if there be any other places wherein there is no Government by fact if the Subjects do not acknowledge the Judge or the Judge openly hath rejected the tryal of such a cause That we have said all private War is not repugnant to natural right even since the constitution of Courts of Justice may also be made apparent from the Law given the Jews where God speaks thus by Moses If a thief be found breaking up and be smitten that he die there shall no bloud be shed from him If the Sun be risen upon him there shall be bloud shed for him Truly this Law so accurately distinguishing seems not only to induce impunity but withall to explain natural right nor seemeth it to be grounded in any peculiar divine mandate but in common equity Whence we see other Nations also have followed the same That of the 12. Tables is notable drawn no doubt from the old Attic Law If a thief steal by night and be killed he is iustly killed So by the Laws of all Nations whom we have known is he judged guiltless who hath by arms defended his life against a violent assault This so manifest consent is testimony enough that here is nothing contrary to natural right XXXV Nor by the Law Evangelical Objections proposed COncerning the more perfect voluntary divine Law that is the Evangelical there is more difficulty That God who hath more right over our lives than we have our selves might have required of us so much patience as to lay down our lives and when we are brought in danger by the assault of a private person rather choose to be killed than to kill I do not doubt But the question is whether it hath pleased him to oblige us so far or no. On the affirmative part are usually brought two places which we alleged afore upon the general question But I say unto you resist not the injurious person and Revenge not your selves dearly beloved There is a third place in those words of Christ to Peter Put up thy Sword into the sheath for they that take the Sword shall perish by the Sword Some adde unto these the example of Christ who dyed for his enemies Nor are there wanting among the old Doctors who although they disapproved not publick Wars were nevertheless of opinion that private defense was forbidden We have above set down some places of Ambrose for VVar and more of Austin and more clear known to all Yet hath the same Ambrose said And perhaps therfore the Lord said to Peter shewing two Swords It is enough intimating it was lawful until the Gospel came which instructeth us in the truth as the Law did in Justice The same Father elsewhere A Christian if he fall upon 〈◊〉 armed thief cannot strike him again that striketh lest while he defends his safety he offend against piety And Augustin hath said I do not indeed reprehend the Law which permitteth sucâ—… thieves and other violent assaulters to be slain but how to defend those the slay them I do not find And elsewhere As to killing of men lest one be killed I do not like that course unless perhaps one be a Souldier or bound by publick Office that he doth not this for himself but others having received lawful power And that Basil was of the same mind appears sufficiently out of his second Epistle to Amphilochius XXXV The lawfulness of private defense confirmed BUt the opposite opinion as it is more common so it seemeth unto us more true that an obligation is not laid upon us to be so patient For we are commanded in the Gospel to love our neighbour as our selves not above our selves yea where equal evil is imminent we are not forbidden
just conceive all VVars to be condemned as unjust and unlawful whereunto this appellation of just is not agreeable That VVar according to the Law of Nations may be solemn two things are requisite first that it be waged on both sides by his authority who hath the highest power in the Common-wealth Secondly that certain rites be used of which we shall speak in due place One of these because they are both required without the other doth not suffice Publick War less solemn may want those rites and 〈◊〉 waged against private persons and â—…ave for the author any Magistrate And truly if the matter be considered without civil Laws it seemeth that every Magistrate hath right to wage War as for defense of the people committed to his charge so for the exercise of jurisdiction if he be opposed by force But because by War the whole Common-wealth is endangered therefore by the Laws of all people almost it is provided that War be not undertaken without the authority of him whose power in the Common-wealth is highest There is exstant such a Law of Plato's and in the Roman Law it is called treason in him who without the command of the Prince hath waged War or listed Souldiers and raised an Army In the Cornelian Law brought in by L. Cornelius Sylla it was without the command of the people In Justinians Code is exstant a Constitution of Valentinian and Valens None have leave to take any arms without our knowledge and direction Pertinent is that of Austin Natural order for preserving peace among men requires this that 〈◊〉 thority and counsel in undertaking 〈◊〉 should remain in the Princes But 〈◊〉 all sayings how universal soever 〈◊〉 be interpreted by equity so must 〈◊〉 Law For first there is no doubt 〈◊〉 that 't is lawful for one having juriâ—…ction by force of his Apparitors or 〈◊〉 jeants to constrain a few disobedâ—… persons as oft as there is no need 〈◊〉 greater power to that purpose and 〈◊〉 danger imminent to the Common-wealth Again if it be so present 〈◊〉 danger that time will not admit of consultation with him who hath supâ—… power here also necessity affordeth 〈◊〉 exception By this right L. Pinâ—… Governour of Enna a Garrison in 〈◊〉 cily having certain information that 〈◊〉 Townsmen were falling off to the 〈◊〉 thaginians making a slaughter of then kept the Town Without such necesity to revenge the injuries which the King neglecteth to persue a right of 〈◊〉 ring is allowed to the Citizens by the bolder pen of Franciscus Victoria but his opinion is by others justly rejected XXXIX Of War waged by inferiour Magistrates IN such cases wherein the lower powers have right to make War the Interpreters of Law do not agree whether that War may be called publick Some say Yea some No Certainâ—…y such VVars are publick if by pubâ—…ick we mean that which is made by the right of the Magistrate and therefore they that in such a case oppose themselves against the Magistrates fall into the punishments of persons contumacious against Superiours But if publick be taken in the more excellent signification for that which is solemn as it is without controversy oft taken those Wars are not publick because to the plenitude of that right both the judgement of the highest power and other things are requisite Nor am I mov'd with this that in such contention also they are wont to take the spoil of the resisters and give it to the Souldier for this is not so proper to solemn War but it may have place elsewhere And it may also happen that in an Empire of larger extent the inferiour powers may have power granted them to begin a War in which case the VVar is supposed to be made by the highest Power because every one is judged author of that which he giveth another Commission to do That is more Controverâ—… whether a conjecture of the will of thâ—… highest where there is no mandate 〈◊〉 sufficient To me it seemeth not For 〈◊〉 sufficeth not to see what would be the pleasure of him that hath the higheâ—… Power if he were consulted with in this conjuncture of affairs but this is rather to be considered what he wherâ—… the matter admits delay or is of doubtful deliberation may desire should be done without consulting with him if a Law were to be made about it For although in some particular fact the particular reason ceaseth which moves the will of the Soveraign yet the universal reason holdeth which requires dangers to be withstood VVhich cannot be if every Magistrate draw unto himself the judgement thereof Justly therefore was C. Manlius accused by his Legats because without command of the Roman people he had made VVaâ—… upon the Gallo-Grecians for albeit the Legions of the Galli had served in the Army of Antiochus nevertheless after the peace agreed on with Antiochus whether that injury were to be revenged upon the Gallo-Grecians was not at the pleasure of C. Manlius but of the people of Rome That C. Caesar for carrying VVar against the Germans should be yielded up to the Germans was the sentence of Cato not so much as I conceive regarding justice as desiring to acquit the City from the fear of an Usurper for the Germans had given aid to the Gauls enemies of the Roman people and therefore had no reason to complain of injury done them if the Romans had just cause of warring against the Gauls And yet Caesar ought to have been content with the expulsion of the Germans out of Gallia the Province committed to him and not to pursue the Germans with War within their own bounds especially without any appearance of danger thence unless he had advised first with the people of Rome So then the Germans had no right to require him to be given up into their hands but the people of Rome had right to punish him just as the Carthaginians answered the Romans Whether Saguntum waâ—… assaulted by private or publick Counsel we conceive is not to be made the question but this whether it was assaulted justly or unjustly for to our selves is an account to be given by our Citizens whether he did it of himself or by Commission With you this alone is disputable whether it vere a violation of the league or no. Cicero defends the action both of Octavius and Decimus Brutus who on their own heads took Arms against Antonius But suppose Antony deseâ—…ved hostile opposition yet was the judgement of the Senate and people of Rome to be waited for whether it were for the good of the Common-wealth to dissemble what was done 〈◊〉 to revenge it to come to conditions of peace or go forth to War For no man is compell'd to use his own right which is often conjoind with hazard Again suppose Antonius be declar'd an enemy yet the deliberation was to be left to the Senate and people of Rome by whose conduct especially they
other way to preserve themselves or because being opprest with want they can have no sustenance orâ—… other terms For if the Campanians 〈◊〉 old being subdued by necessity subjected themselves to the Roman people in this form The people of Campania and the City Capua our Lands the Temples of our Gods all divine and humane things we yield up into your hand O ye Con'cript Fathers and fundâ—… people when they desired to subj a themselves to the dominion of the Romans were not accepted as 〈◊〉 saith what hinders but that a people after the same manner may yield up 〈◊〉 self into the hand of one propotent and over-mighty man Moreover it 〈◊〉 happen that some Father of a Family possessing a large estate of Lands may please to receive no inhabitant 〈◊〉 to his possession but upon such condtion or that some Master having 〈◊〉 great number of servants may manuâ—… and set them at liberty on conditioâ—… that they be subject to his Government and pay him tribute VVhich cases 〈◊〉 not without their examples Tacitâ—… concerning the servants of the Germans saith Every one is Master of his own house and estate The Lord impiâ—…seth and requireth of them as his farmers a rent of Corn or Cattle or cloths and the servant so far is subâ—…ect Adde that as Aristotle hath said some 〈◊〉 are by nature servants i. e. fit for servitude so also some Nations are of this disposition that they know better how to be ruled than how to rule Which the Cappadocians seem to have thought of themselves who preferred the life under a King before the Liberty offer'd them by the Romans and affirmed they could not live without a King So Philostratus in the life of Apollonius saith It is a folly to bestow Liberty upon the Thracians Mysians Getes which they would not gladly accept And moreover some might be moved by the examples of those Nations which for many ages lived happily enough under a Government plainly regal The Cities under Eumenes saith Livy would not have changed their fortune with any free City whatsoever L. 42. Sometimes also the State of the City is such that it cannot be safe unless under the free Empire of One which conceipt many prudent men had of the Roman as the case stood in the time of Caesar Augustus For these causes therefore and the like it may not only possibly but doth usually come to pass that men subject themselves to the Empire and power of another which also Cicero notes in the second of his offices XLIII The same further proved FUrther yet by a just War as we have said afore as private dominion may be acquired so also civil dominion or the right of reigning without dependence Neither do I speak this only in behalf of the Empire of One where that is receiv'd I would not be so mistaken but the same Arguments are of force for conserving the Empire of many where many nobles or states have this same right of supreme power and govern the City the Plebeians being excluded What that no Common-wealth hath ever been found so popular wherein some such as are very poor or foreigners and also Women and Youth are not kept from publick Counsels Besides some States have other people under them not less subject than if they did obey Kings Whence that question Is the Collatin people in their own power and the Campanians when they had yielded up themselves to the Romans are said to be under the power of others Many are the examples to this purpose and they are all of no value if we once grant this that the right of ruling is alwaies subject to the judgement and will of them who are ruled But on the contrary it is evident both by sacred and prophane history that there are Kings that are not inferiour to the people though taken all together If thou shalt say saith God speaking to the people of Israel I will set a King over me and to Samuel Shew unto them the right of the King that shall reign over them Hence is a King called the Anointed over the people over the inheritance of the Lord over Israel Salomon King over all Israel So David giveth thanks to God for subduing his people under him The Kings of the Nations saith Christ bear rule over them And that of Horace is well known Commands of Kings their subjects move And Kings are subject unto Jove Seneca thus describes the three forms of Government Sometimes the people are they whom we ought to fear sometimes if the Discipline of the Common-wealth be so that most things be transacted by the Senate the gracious men therein are feared sometimes single persons to whom the power of the people and over the people is given Such are they who as Plutarch saith have a command not only according to the Laws but over the Laws also and in Herodotus Otanes thus describes a single Empire to do what one pleaseth so as not to be accomptable to any other and Dio Prusaeensis defines a Kingdom to have command without controul Pausanias opposes a kingdom to such a power as must give account to a superiour Aristotle saith there are some Kings with such a right as else where the Nation itself hath over it self and that which is its own So after that the Roman Princes began to take upon them an Authority truly regal the people is said to have conferred upon them all their Authority and power and that over themselves as Theophilus interprets Hence is that saying of M. Antonius the Philosopher None but God alone can be judge of the Prince Dion of such a Prince He is free having power over himself and the Laws that he may do what him pleaseth and what likes him not leave undone Such a kingdom was of old that of the Inachidae aâ—… Argos far different from the Athenian Common-wealth where Theseus as Plutarch tells us acted only the part of a General and Guardian of the Laws in other respects not superiour to the rest Wherefore Kings subject to the people are but improperly called Kings as after Lycurgus and more after the Ephori were established the Kings of the Lacedemonians are said to have been Kings in name and title not really and indeed Which example was also followed by other States in Greece Pausanias Corinth The Argives in love of equality and liberty have long since very much abated the regal power so that they have left the Sons of Cisus and his posterity nothing beside the name of a Kingdom Such Kingdoms Aristotle saith do not make any proper kind of Government because they only are a part in an Optimacy or Populacy Moreover in Nations that are not perpetually subject unto Kings we see examples as it were of a Kingdom temporary which is not subject to the people Such was the power of the
although among the Latins principality and Kingdom are wont to be opposed as when Caesar saith the Father of Vercingetorix held the principality of Gallia but was slain for affecting the Kingdom and when Pisi in Tacitus calls Germanicus the Son of a Prince of Romans not of a King of Parthians and when Suetonius saith Caligula wanted but a little of turning the principality into a Kingdom and when Maroboduus is said by Velleius to have embraced in his mind not a principality consisting in the will of those that obey but a regal power Nevertheless we see these names are often times confounded for both the Lacedaemonian Leaders of Hercules posterity after they were subject to the Ephori were yet stiled Kings as we have said afore and the antient Germans had Kings which as Tacitus speaketh were Soveraign by the authority of perswading not by the power of commanding And Livy saith of King Evander that he ruled by authority rather than command and Aristotle and Polybius call Suffetes King of the Carthaginians and Diodorus too as also Hanno is called King of the Carthaginians by Solinus And of Scepsis in Troas Strabo relates when having joyned to them the Milesians into one Common-wealth they began to use a popular Government the posterity of the old Kings retained the royal name somewhat of the honour On the contrary the Roman Emperors after that openly and without any dissimulation they held a most free regality yet were stiled Princes Moreover Princes in some free Cities have the Ensigns and marks of royal Majesty given unto them Now the Assembly of the States that is of them that represent the people distributed into classes in some places indeed serve only to this purpose that they may be a greater Council of the King whereby the complaints of the people which are oft concealed in the Privie Council may come unto the Kings ear in other places have a right to call in question the actions of the Prince and also to prescribe Laws whereby the Prince himself is bound Many there are who think the difference of the highest Empire or of that less than the highest is to be taken from the conveyance of Empire by way of election or succession Empires devolved this way they affirm to be highest not those that come the other way But it is most certain this is not universally true for succession is not the title of Empire which gives it form but a continuation of what was before The right begun from the election 〈◊〉 the Family is continued by succession wherefore succession carries down 〈◊〉 so much as the first election did confeâ—… Among the Lacedemonians the Kingdom passed to the Heirs even after 〈◊〉 Ephori were ordained And of such Kingdom that is a principality 〈◊〉 Aristotle some of them go by rigeâ—… of bloud some by election and in the Heroical times most Kingdoms in Greece were such as besides him Thucydidâ—… notes On the contrary the Romaâ—… Empire even after all the power botiâ—… of Senate and people was taken awaâ—… was bestowed by election XLVII The second Caution LEt this be the second caution 〈◊〉 one thing to enquire of the thing â—…nother of the manner of holding it which is appliable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an act a way But these things some hold by a full right of propriety others by a righâ—… usufructuary other by a temporary right So the Roman Dictator by a temporary right had the Highest power and some Kings both the first that are elected and they that succeed them in a lawful order by an usufructuary right but some Kings by a full right of propriety as they that by a just War have gotten their Empire or into whose power some people to avoid a greater evill have so given up themselves that they excepted nothing Neither do I assent to them who say the Dictator had not the highest power because it was not perpetual for the nature of moral things is known by the operations wherefore such faculties as have the same effects are to be called by the same name Now the Dictator within his time exerciseth all acts by the same right as a King of the best right nor can his act be rendred void by any other As for duration that changeth not the nature of the thing though if the question be of dignity which is wont to be stiled Majesty this is greater no doubt in him to whom perpetual right is given than to whom temporary right because the manner of the Tenure is of moment in respect of dignity And I would have the same understood of these that before Kings come to age or whilst they are hindred by loss of reason or their liberty are appointed Curators of the Kingdom so that they be not subject to the people nor their power revocable before the appointed time Another judgement is to be made concerning those that have received a right revocable at any time that is a precarious right such as of old was the Kingdom of the Vandals in Africa and of the Goths in Spain when the people deposed them as oft as they were displeased for every act of such Kings may be rendred void by these that have given them a power revocably and therefore here is not the same effect nor the same right as in other cases XLVIII That some highest Empires are holden fully i. e. alienably THat which I have said that some Empires are in full right of propriety i. e. in the patrimony of the Ruler is opposed by some learned men with this Argument That free-men are 〈◊〉 in commerce But as power is either Lordly or Regal so also Liberty is either personal or civil and again either of single persons or of all together for the Stoicks too did say there is a certain servitude consisting in subjection and in the holy Scriptures the Kings subjects are call'd his servants As therefore personal liberty excludes Master-ship so civil liberty opposes regality and any other dition properly so called So Livy opposeth them saying The people of Rome are not in a kingdom but in liberty and elsewhere he distinguisheth the people enjoying liberty from those that lived under Kings Cicero said Either the Kings should not have been expell'd or liberty should have been given to the people really and not in words After these Tacitus The City of Rome from the beginning was under Kings L. Brutus brought in Liberty and the Consulship Strabo saith of Amisus it was sometime free sometime under Kings And frequently in the Roman Laws foreiners are divided into Kings and free State Here then the question is not concerning the liberty of single men but of a people And further as for private so for this publick subjection some are said to be not of their own right not
behalf of the Commonwealth in Syria Pescennius Niger in Gallia and Britain Clodius Albinus But their enterprize also displeased the Christians which Tertullian likewise boasteth of to Scapula We are defamed concerning the Emperours Majesty yet could the Christians never be found either Albinians or Nigrians or Cassians Cassians were they that followed Avidius Cassius an eminent man who having taken up arms in Syria pretended he would restore the Commonwealth undone by the negligence of M. Antonius Ambrose when he thought injury was done not to himself alone but to his flock and to Christ by Valentinus the son of Valentinian would not use the commotion of the people ready enough to make resistence Violence saith he being offerd I have not learned to resist I can grieve I can weep I can sigh against armes and soldiers oven Goths my arms are my tears For such are the muniments of Priests In any other sort neither ought I nor can I resist After It was required of me that I should restrain the people I answerd it was in me not to raise them in Gods hand to quiet them The same Ambrose would not use the forces of Maximus against the Emperour being both an Arrian and a persecutour of the Church So was Julian the Apostat when he plotted the Churches ruine repressed by the tears of Christians as Nazianzen saith adding This was the only remedy against a persecutor And yet almost all his Army was made up of Christians Adde hereunto that as the same Nazianzen observes that persecution of Julian was not onely injurious to the Christians but had brought the Commonwealth also into extreme danger We will close up this with a saying of Augustin where he explaines the words of Paul to the Romans It is necessary for this life we should be subject not resisting if they the Governors shall please to take any thing from us LXVII It is not lawfull for inferiour Magistrates to make war upon the Highest OUr age hath brought forth men learned indeed but too observant of times and places who perswaded themselves first for so I believe and then others that the things above spoken have place among private persons not also among inferiour Magistrates who as these men thinke have a right to resist the injuries of the Soveraign yea they sin unless they do resist This is not to be admitted For as in Logick the intermediate species if you respect the genus is species if the species below it is genus so these Magistrates in regard of their inferiours are publique persons but in relation to their superiours are private For all faculty of governing which is in Magistrates is so subjected to the highest Power that whatsoever they do against the will of the soveraign is destitute of that faculty and therefore to be accounted for a private act For that saying of the Philosophers hath place here also There can be no order without relation unto somewhat which is first Who think otherwise to me they seem to introduce such a state of things as the Antients feign to have been in heaven before the the Rise of Majesty when they say the minor Gods yeelded not to Jove But the Order which I have mentioned and subalternation is not onely known by common sense but proved also by divine authority For the Prince of the Apostles would have us to be subject otherwise to the King otherwise to the Magistrates to the King as supereminent i. e. without any exception beside those things which are directly commanded by God who approves patience of injury forbids it not to the Magistrates as sent by the King i. e. deriving their power from him And when Paul requires every soul to be subject to the highest powers he included also the inferiour Magistrates If we look back upon the Hebrew people where so many Kings were contemners of divine and human Law we shal never finde that the inferiour Magistrates amongst whom were very many men pious and valiant took so much upon them as to oppose any force against the Kings unless they had receiv'd from God who is King of Kings a speciall mandate But on the contrary what is the duty of Peers Samuel shews when in the sight of the Peers and people with accustomed veneration he attended Saul now ruling perversly Moreover the state of publique Religion alwayes depended on the will of the King and Sanedrin For that the Magistrates and people after the King promised their fidelity to God this must be understood so far as it was in the power of every one And more the images of false Gods publikly exstant we never read to have been thrown down unless by command either of the people in the free State or of the Kings if they ruled Howbeit if at any time any thing was done by force against the Kings it is related for testimony of divine providence permitting it not for approbation of humane fact The Authors of the contrary opinion are wont to object a saying of Trajan when he gave a sword to the Praetorion Prefect Use it for me if I govern well if ill against me But we must know that Trajan as appears by Plinio's Panegyric was very studious to shew nothing regal but to act a true Prince subject to the judgment of Senate and people whose decrees the Prefect's duty was to execute even upon the Prince himself Like to this is that we read of M. Antoninus who would not touch the publique money without the advice of the Senate LXVIII In case of extreme and inevitable necessity what may be done THis is a greater question whether the Law of not resisting bind us in extreme and most certain danger For even some Laws of God although generally exprest have a tacit exception of extreme necessitie which in the time of the Hasmoneans was defined by wise men concerning the Law of the Sabbath Whence it is a common saying Peril 〈◊〉 life drives away the Sabbath and a Jeâ—… in Synesius gives this reason of neglectinâ—… the Law of the Sabbath We were brought into most certain danger of our life Whiâ—… exception is approv'd by Christ himself as also in another Law of not eating thâ—… shew-bread And the Hebrew masters out of the old tradition adde the same exception to the laws of forbidden meats and to some other And rightly Not that God may not bind us over to certain death if he please but because certain laws are of such an argument that it is not credible they were given out of 〈◊〉 rigid a will Which holds more strongly in humane laws I deny not but even a humane law may command some act of vertue under certain peril of death aâ—… the law of not deserting ones Station but we must not rashly conclude that was the will of the Law maker nor dâ—… men seem to have taken so much right over themselves and others but so far aâ—… extreme
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
them to execute publick revenge And I am of Plutarch's opinion that the same is lawfull if before the invasion a publick Law were extant giving power to every one to kill him that shall adventure to do this or that which falls under sight as that being a private man shall get a guard about him or shall invade the Fort that shall slay a Citizen uncondemned or not by lawfull judgment that shall create magistrats without just suffrages Many such Laws were extant in the Cities of Greece in which therefore the killing of such Tyrants was to be esteemed Lawfull Such was at Athens the Law of Solon revived after the return out of the Piraeeum against the overthrowers of the popular State and such as had born offices after the overthrow of it As also at Rome the Valerian Law if any one without the peoples will should take the authority of a Magistrate and the Consular Law after the Decemvirate that none should create a Magistrate without appeal whosoever had done so it should be lawfull to kill him Moreover it will be lawfull to kill the Invader by the express authority of the rightfull Governour whether King Senate or People As also of the Protectors of Children that are Kings such as Joâ—…ada was to Joas when he dethroned Athalia Unless in these cases I cannot yield it lawfull for a private person by force to evpell or kill an Invader of the highest power The reason is because it may be the rightfull Governour had rather the Invader should be left in possession than occasion given to dangerous and bloody Commotions that do usually follow upon the violating or slaying of those men who have a strong faction among the people or forein confederates also Surely it is uncertain whether a King or people be willing the State should be so endangered and without knowâ—…ege of their wâ—…l the force cannot be just Favonius said Civil war is worse than unlan full and usurped Goverment And Cicero To me any peace with our Countrey-men seemeth more profitable than Civil war Better it had been said Titus Quintius the Tyrant Nabis had been let alone at Lacedemon when he could not otherwise be thrown down but with the grievous ruine of the Commonwealth likely to perish in the vindication of her liberty To the same purpose is that of Aristâ—…hanes A Lyon is not to be bred in a City but if he be brought up he must be kept Verily seeing it is a most weighty deliberation whether peace or liberty be to be preferd as Tacitus speaks and in Cicero's opinion it is a politick question of greatest difficulty Whether when our Country is oppressed by an Usurper all endeavour is to be used against him although the Common-wealth be thereby extremely endangered Single persons ought not to arrogate unto themselves that judgment which belongs to the people in common Nor can that saying be approv'd Wee pull the proud Usurpers down That Lord it o'r the willing Town So did Sylla answer being asked why he troubled his Country with taking arms That I may free it from tyrants Better is the advice of Plato in an Epistle of his to Perdicca In the Common-wealth contend so far as thou canst approve thy doings to thy Citizens it is not fit to offer violence neither to thy parent nor to thy country The sense whereof is extant in Salust too For to over-rule thy country or thy parents although thou art able and canst reform what is amiss yet is it uncivill especially seeing all changes in affairs of state portend slaughter flight and other hostilities Thomas saith The destruction though of a tyrannical Government is sometimes seditious The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side for the sacred Scripture plainly witnesseth He was raised by God himself and sent as an Avenger to wit by special command And besides it is not manifest that this King of Moab had not some right of Government conditionall Against other Kings also God executed his judgments by what hand he pleased as by Jehu upon Joram Lastly it is to be noted in a controverted case a private man by no means ought to take upon himself to judge but follow the possession So did Christ command tribute to be paid to Caesar because the Money bare his Image that is because he was in possession of the Empire LXXV Who may lawfully wage war AS in other things so in voluntary actions there are wont to be three kinds of efficient causes principal adjuvant and instrumental In war the principal is he whose work is done in private a private person in publick the publick power especially the highest Whether for those that stirr not themselves war may be raised by another we shall see elsewhere Mean while this we take for certain naturally every one may vindicate his own right Therefore were our hands given us But to profit another in what we can is not only lawfull but commendable The writers of Offices truly say Nothing is more serviceable to man than another man Now there are divers bonds between men which engage them to mutual aide For kinsmen assemble to bring help and neighbors are calld upon and fellow-citizens Aristotle said It behoveth every one either to take arms for himself if he hath received injury or for his kindred or for his benefactors or to help his fellows if they be wronged And Solon taught that the Commonwealths would be happy wherein every one would think anothers injuries to be his But suppose other obligations be wanting the communion of humane nature is sufficient No man is unconcerned in that which is humane It is a saying of Democritus Our duty is to defend the opprest with injury and not neglect them for that is just and good Which is thus explained by Lactantius God who hath not given wisedom to other living creatures hath secured them by natural muniments from assault and peril But to man because he formed him naked and frail that he might rather furnish him with wisedom he hath given beside other things this pious affection whereby one is inclined to defend love cherish another and afford mutual aid against all dangers When we speak of Instruments we do not here understand arms and such like things but those persons who act so by their own will that their will depends upon another will Such an instrument is the son to the father being naturally a part of him such also is a servant as it were a part legally Democritus Use servants as parts of the body some for one thing some for another Now as a servant is in the family so is a subject in the Commonwealth and therefore an instrument of the Ruler And no doubt all subjects naturally may be used for war but some are exempted by special Law as of
is not chosen as a thing primarily intended as in judiciall punishment but as the only thing remaining at that time when he that is assaulted even at that time ought to desire rather to do somewhat whereby the other may be terrified or weakened than destroyed Present danger is here requir'd and as it were in a point I confess if the assailant draw his sword and so that it appears he doth it with a mind to kill it is lawfull to prevent him For in morals as in naturals a point is not found without some latitude Nevertheless are they deceived and do deceive who admit of any fear whatsoever as a just occasion of such preventing For it is well observed by Cicero Very many injuries proceed from fear when he that thinks to hurt another feareth unless he do it himself shall receive hurt Clearchus in Xenophon Many have I known drawn either by calumny or supicion whilst they fear others and had rather prevent than suffer to have done much evill to those that attempted not nor so much as thovght any such thing against them Cato in his Oration for the Rhodians What saith he shall we first execute that which we say they designed Cicero again Who ever made this Statute or to whom may it be granted without extreme hazard of all that one might lawfully kill him first of whom he saith we was afraid left himself should afterward be killed Pertinent is that of Thucydides The future is yet uncertain nor ought any one therefore to make a quarrell present and certain The same Author where he declareth the hurt of Sedition among the Grecian Cities sets down this for one fault He was praised that first did what another was about to commit To such agrees that saying of Vibius Crispus cited by Quintilian Who permitted thee to be so fearfull And Livia in Dio saith They escape not infamy that by way of prevention do the evill which they fear Now if any one offer not present force but be found to have conspired or lyen in wait if to prepare poyson if to plot a false accusation to suborn witnesses to corrupt judgment such a one I say cannot be justly slain if either the danger may be otherwise avoided or it be not certain enough it cannot be otherwise avoided For for the most part the delay of time interposed affords many remedies and many accidents for our rescue according to the Proverb Between the cup and the lip Yet there are not wanting both Divines and Lawyers that extend their indulgence farther But the other also which is the better and safer way wanteth not the consent of Authors IV. Of the loss of a member and the defense of chastity WHat shall we say of the danger of mutilation and loss of some part of the body Certainly the loss of a member especially one very needfull being very grievous and as it were equiparable to life besides it being hard to know whether it draw not after it perill of death if there be no other way to come off I may suppose the author of such a perill forefeits his own life and may be justly slain by the defendant In defense of Chastity it can scarce be doubted but the same is lawfull when both common estimation and the divine law too equals chastity to life Therefore Paulus the Lawyer said such a defense is right We have an example in Cicero and Quintilian of a Tribune of Marius slaine by a Soldier Yea and women have often slain the in vaders of their modesty as histories relate Chariclea in Heliodorus calls such an act a just revenge on behalf of injur'd chastity V. Defense may lawfully be omitted WHat we have said afore although it be lawfull to kill him that attempts to kill yet he doth more commendably who had rather be killed than kill some do grant so that they except a person profitable to many But to me it seemeth unsafe to impose this Law contrary to Patience upon all in whose life others are concernd Wherefore I may conceive it is to be restrained to them whose office 't is to keep off force from others such as are the companions in a journey undertaken on those termes and publick Rulers to whom that of Lucan may be applyed T was cruelty to yeeld himself to death So many thousands living by his breath VI. Defense is unlawfull sometimes against a person very profitable to the Publick ON the contrary it may happen that because the Invader's life is profitable to many he cannot be slain without sin nor that onely by force of Divine Law whether old or new of which afore when we shewed the Kings person to be sacred but by the very Law of Nature For the Right of nature as it signifies a Law doth not onely respect those things which are dictated by that Justice that is calld Expletrix but conteineth in it self the acts of other vertues also as of Temperance Fortitude Prudence as being in certain circumstances not onely honest but due Now to that which we have spoken Charity obligeth us Nor doth Vasquez remove me from this opinion when he saith a Prince who assaulteth an innocent person ceaseth to be a Prince in that very act than which scarce any thing could be spoken either less truly or more dangerously For as dominions so also Empires are not lost by delinquency unless the Law ordain it But no where is found a Law ordaining this concerning Empires that they should be lost by an offence against a private man nor will ever such a Law be found as I believe for it would bring in very great confusion of things As to that foundation which Vasquez lays for this and many other Conclusions That al Empires regard the utility of those that obey not of those that governe grant it were universally true it would not serve the turne for the thing doth not presently fail whose utility in some part faileth And whereas he adds that the safety of the Commonwealth is desired by every one for his own sake and therefore every one ought to prefer his own safety even before the whole this doth not sufficiently cohere T is true indeed for our own sake we would have the Commonwealth be safe but not onely for our own sake others are also to be regarded For it is a false opinion and rejected by the sounder Philosophers to think that Friendship is born of indigence alone sith of our own accord and by nature we are carryed to it Now that I should prefer the good of a great many before my own proper good Charity adviseth often sometimes commandeth Here is pertinent that of Seneca Princes and Kings and whosoever by any other name are Tutors of the publick State no wonder They are beloved even above all private Relations For if to men of sound judgment publick things are dearer than private it followes that he
mere defence for the most part is considered but publick powers together with defense have also a right of revenging Whence it is that they may lawfully prevent force that is not present but seems impending afar off not directly that we have shewed above to be injust but indirectly by revenging a wrong begun already but not consummate Of which elswhere XIV It is not lawful to take arms to diminish a Neighbor's power THat is in no wise to be allowed which some have deliver'd that by the Law of Nations arms may be rightly taken to abate a growing power which being encreased might be able to do hurt I confess in consultation about war this is wont also to come in not under the respect of just but of profitable that if the war be just upon some other ground upon this it may be judged prudently undertaken Nor do the Authors cited here say any more But that a possibility of suffering force should give a right of offring force this is far from all equity So is the life of man that full security is never in our hand Against uncertain fears we must guard our selves by meditation of divine providence and by harmless caution not by doing violence to our neighbours XV. Defensive war also is unjust on his part who gave just cause of War AS little are we pleasd with this which they teach that also their defense is just who have deserved the war because forsooth few are content to return only so much revenge as they have received injury For that fear of an uncertain thing cannot give a right to use force whence neither hath a person accused of a crime any right to resist by force the publick officers willing to apprehend him for fear lest he may be punisht more than he deserves But he that hath offended another ought first to offer the offended party satisfaction according to the arbitration of an upright man and then afterward his arms will be lawfull So Ezechias when he had not kept the league which his Ancestors had made with the King of Assyria being set upon by a war confesseth the fault and submits himself to a mulct at the Kings pleasure Having done that and being after that again provoked by war encouraged by a good conscience he withstood the enemies force and his cause was supported by the favour of God Pontius Samnis after restitution made to the Romans and the Author of the breach yeelded up we have saith he expiated our fault and pacified the wrath of heaven that was against us for our violation of the league I know full well what Gods soever were pleasd we should be subdued to a necessity of restitution the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach A little after What more do I owe to thee O Roman What to the league what to the Gods the Judges of the league Whom shall I bring unto thee to be judge of thy anger and of my punishment I refuse to people nor private man So when the Thebans had offerd all right to the Lacedemonians and they required more the good cause passed over from these to them saith Aristides XVI The rise and progress of propriety THere follows among the Causes of war Injury done and first against that which is ours A thing is ours either by a common or by a proper right For the better understanding whereof we must know the Rise and beginning of propriety which the Lawyers call dominion God bestowed on mankind in general a right over the things of this inferiour nature presently after the creation and again upon the reparation of the world after the floud All things as Justin speaks were undivided common to all as if all had one patrimony Hence it was that presently every man might take unto his uses what he pleased and spend what might be spent Which use of the universal right was then instead of propriety For what any one had so taken another could not without injury take away from him This may be understood by that similitude which is in Cicero A theater is common yet the place possessed by any one may be rightly call'd his own Nor was it impossible for that state to have continued if either men had persisted in a certain great simplicity or had liv'd together in a certain mutual excellent charity One of these to wit Communion by reason of an exceeding simplicity may be observed in some people of America who through many Ages without any incommodity have persisted in that custome The other to wit communion of Charity the Essens practised of old and then the Christians who were first at Hierusalem and now also not a few that lead an ascetick life The simplicity wherein the first parents of mandkind were created was demonstrated by their nakedness There was in them rather an ignorance of vice than the knowledge of vertue as Trogus saith of the Scythians The most antient of mortals saith Tacitus lived without any evill lust without dishonesty and witkedness and so without punishment and coercion And in Macrobius First there was amongst men simplicity ignorant of evil and as yet void of craft This simplicity seemes to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the Hebrew wise man by the Apostle Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he opposeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to craftiness Their only busines was the worship of God whereof the Symbole was the tree of life as the antient Hebrews do expound and the Apocalyps assenteth And they lived easily of those things which the earth of her own accord brought forth without labour But in this simple and innocent way of life Men persisted not but applyed their minds to various arts whereof the Symbole was the tree of the knowledge of good and evill that is of those things which may be used both well and ill In regard of this Solomon saith God created man right that is simple but they have found out many inventions Dion Prusaeensis in his 6. Oration To the posterity of the first men their crafâ—…iness and various inventions were not very conducible for they used their wit not so much for valour and justice as for pleasure The most antient Arts Agriculture and Pasture appeared in the first Brothers not without some distribution of estates From the diversity of their courses arose emulation and then slaughter and at length when the good were infected by the conversation of the bad a gigantick kind of life that is violent such as theirs whom the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The world being washed by the floud in stead of that fierce life succeeded the desire of pleasure whereunto wine was subservient and thence arose unlawfull loves But concord was chiefly broken by that
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
more meet for the Citizens than the City For in the word free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Appian speaks there was a manifest fallacy LX. Of Agreements personal and real IT is also a frequent question pertinent here concerning Agreements personal and real And truly if the Treaty was with a free people no doubt but what was is promised them is in its own nature real because the subject is a permanent matter Yea though the state of a Commonwealth be chang'd into a Kingdom the League will remain because the body remains the same though the head being chang'd and as we have said above the Empire which is exercis'd by a King ceaseth not to be the empire of the people An exception it will be if the cause appear to have been proper to that state as if free Cities contract a League to maintain their liberty But if it be contracted with a King the League will not presently be esteemed personal for as it is rightly said by Pedius and Ulpianus the person is for the most part inserted into the Agreement not that the Agreement may be personal but to shew with whom 't is made But if it be added to the League that it shall be perpetual or that it is made for the good of the Kingdom or with himself and his successors such an addition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is usual saith Libanius in his Oration for Demosthenes or for a time defined now it appears plainly to be real Such it seems was the league of the Romans with Philip King of Maccdon which when Perseus his son denyed to concern him a war followed upon that ground Moreover other words and the matter it self sometimes will afford a conjecture not improbable But if the conjectures be equal on both sides it will remain that the favourable be accounted real the odious personal Leagues made for peace or for commerce are favourable those made for war are not all odious as some think but the defensive have more of favour the offensive of burthen Add hereunto that in a league for any war it is presumed that regard is had to the prudence and piety of him who is treated with as one who seemed not likely to undertake a war neither unjustly nor yet rashly As to that saying Societies are broken off by death I do not allege it here for it perteins to private societies and to the Civil Law Therefore whether by right or wrong the Fidenates Latins Etruscians Sabins departed from their league upon the death of Romulus Tullus Ancus Priscus Servius cannot be rightly judged by us because the words of the League are not extant Wherunto that controversy in Justin is not unlike Whether Cities which were tributary to the Medes the Empire being changed had changed their condition For it is to be considered whether in the agreement they had committed themselves to the trust of the Medes But 〈◊〉 Bodin's argument is in no wise to be allowed that leagues do not pass to the successors of Kings because the vertue of an oath goes not beyond the person For the obligation of an oath may bind the person only and yet the promise it self may oblige the heir Neither is it true which he assumes that leagues depend upon the oath as their firmament when for the most part there is efficacy enough in the promise it self to which for Religion sake the oath is added The commons of Rome in the Consulship of P. Valerius had sworn they would come together at command of the Consul L. Quintius Cincinnatus succeeds him being dead Some Tribunes cavill as if the people were not bound by their oath Livie's Judgment follows That neglect of the Gods which this age is guilty of was not yet nor did every one by interpreting for himself make his oath and the Laws comply with his affections but rather accommodated his own manners unto them LXI A League made with a King is extended to him being expelled not to the Invader CErtainly a League made with a King remains although the same King or his succor be driven out of his Kingdom by his Subjects For the right of the Kingdom remains with him however he hath lost the possession On the contrary if the Invader of anothers Kingdom the rightfull King being willing or the Oppressor of a Free people before he hath gotten sufficient consent of the people be assalted by war nothing will thereby be done against the league because those have possession they have not right And this is that which T. Quintius said to Nabis We have made no friendship nor society with thee but with Pelops the just and lawfull King of the Lacedemonians These qualities of King successor and the like in leagues do properly signify a right and the Invaders cause is odious LXII To whom a promise made to the first is due when more have performed a thing together CHrysippus of old had handled this question whether the reward promised to him who came first to the mark be due to both if they came together or to neither of them And truly the word first is ambiguous for it signifies either him who goes before all or him whom no man goes before But because the rewards of vertues are favourable it is the 〈◊〉 answer that Both concur to the reward though Scipio Caesar Julian dealt more liberally and gave full rewards to them that ascended the walls together LXIII How far States are accountable for damages done by their Subjects KIngs and Magistrats are responsible for their neglect who do not use the remedies which they can and ought for the restraint of robbery and piracy upon which score the Scyrians were antiently condemnd by the Amphyctiones I remember a question was propos'd upon the fact when the Rulers of our Country had by their letters given very many power of taking prizes from the enemy at Sea and some of them had spoyled our friends and their countrey being forsaken wandred about and would not return when they were recalled whether the Rulers were faulty upon that account either because they used the service of naughty men or because they had not required of them caution I gave my opinion that they were bound no farther than to punish or yield the offenders if they could be found and to take care that legal reparation might be made out of the goods of the Robbers For they were not the cause of the unjust spoil that was made nor were partakers of it in any wise yea they forbad by their Laws any hurt to be done their friends That they should require caution they were obliged by no Law seeing they might even without letters give all their sublects power to spoil the enemy which was also done of old Nor was such a permission any cause why damage was done to their friends when even private men might without such permission send forth ships of war Moreover
out of the City they should give what Lars Tolumnius gave and to the Romans by the Samnites if they did come to any Council in Samnium they should not go away inviolate Wherefore this Law doth not pertain to them through whose bounds Embassadors pass without leave for if they go to their enemies or come from their enemies or otherwise make any hostile attempt they may even be slain which the Athenians did to the Embassadors between the Persians and Spartans the Illyrians to the Embassadors between the Essians and Romans and much more may they be bound which Xenophon orderd against some Alexander against them that were sent to Darius from Thebes and Lacedemon the Romans against the Embassadors of Philip to Anmbal and the Latins against the Embassadors of the Volsci If there be no such provocation and Embassadors be ill used not that law of Nations whereof we treat but the friendship and the Honour either of him that sent or of him to whom they go will be judged violate Justin of the latter Philip King of Macedon Afterward he sent his Embassador with letters to Annibal to join in league with him The Embassador being taken and brought to the Roman Senate was sent away safe not in honour to the King but lest he should be made a certain enemy that hitherto was dubious LXIX An enemy to whom an Embassador is sent is bound BUt an Embassy admitted even with enemies in Arms much more with enemyes not in actuall hostility hath the safeguard of the Law of Nations Diodorus Siculus said Heralds have peace in the time of War The Lacedemonians who had slain the Heralds of the Persians are said thereby to have confounded the rights of all men Livy saith Embassadors being brought into danger there was not left so much as the Law of War Curtius He sent Messengers to compell them unto peace whom the Tyrians against the Law of Nations killed and threw into the Sea Justly is it said for in war also many things fall out which cannot be transacted but by Embassadors and peace it self can hardly be made and differences reconciled but by their Mediation LXX Embassadors may not be wronged by way of retaliation THis is a question too Whether by the right of rendring like for like an Embassador may be slain or ill used coming from him that hath done so And truly there are in Histories examples enough of such revenge but histories we know relate not only things done justly but those things also that are done unjustly angrily impotently The Law of Nations provides not only for the dignity of him that sends but for the security of him that is sent Wherefore there is a tacit contract with him also and wrong is done to him though none is done to his Master Wherefore Scipio did not only magnanimously but according to the Law of Nations who after the Embassadors of the Romans were ill entreated by Carthaginians the Embassadors of the Carthaginians being brought unto him and being asked what ought to be done answered not as the Carthaginians have done Livy addes he said He would do nothing unworthy of the manners of the Roman people Valerius Maximus puts the like words but more antient into the mouth of the Roman Consuls on a like occasion Hanno the integrity of our City quits thee of that fear For then too against the right of Legation Cornelius Asina was cast into chaines by the Carthaginians LXXI The companions also of Embassadors and their Goods are inviolable THe Companions also and the Goods of Embassadors have in their proportion a kind of sanctimony Whence it was in the old form of the Heralds O King do you make me a Royal messenger of the Roman people do you privilege my companions and my Goods And by the Julian Law de vi publica they are pronounced guilty not only that have wronged Embassadors but their attendants too But these are sacred accessorily and so far as it seems good to the Embassador Wherfore if his Attendants have greatly offended they may be demanded of him that he may yield them For they are not to be drawn from him by force When this was done by the Achaians against some Lacedemonians that were with the Roman Embassadors the Romans cryed out the Law of Nations was broken Whither may be also referred the judgment of Sallust concerning Bomilcar which we made use of above But if the Embassador will not yield them the same course is to be taken which before we said about the Embassadors own offense Now whether an Embassador hath jurisdiction over his own family and whether his house be a sanctuary for all that fly unto it depends upon the concession of him with whom he resides For this belongs not to the Law of Nations That the movable Goods also of the Embassador which are accounted an accession to his person cannot be seised on neither as a pledge nor for payment of a debt nor by order of judgment nor which some allow by the Kings hand is the truer opinion For all coaction ought to be far from an Embassador as well that which toucheth his necessaries as his person that he may have full security If therefore he hath contracted any debt and as it is possess no immovables in that place He is to be calld upon kindly and if he refuse his Master so that at last that course may be taken with him which is usual against debters in another territory Nor is it to be feared which some think lest if this be so none will be found to contract or deal with an Embassador For even Kings who cannot be compell'd want not creditors and among some Nations it was a custome saith Nicolaus Damascenus that contracts which were gone into trust should bear no action no more than ingratitude so that men were constrained either to fulfill the contract presently or be content with the naked faith of the debter And Seneca wisheth all the world were in this condition Would we could perswade men to receive mony lent only from those that pay it willingly would no stipulation did bind the buyer to the seller nor sealed bonds and indentures were laid up Faith should rather keep those agreements and a mind studious of right Appian also saith it displeased the Persians to owe money being a thing obnoxious to deceit and lying Aelian saith the same of the Indians With whom Strabo agrees in these words They have no judgments but about slaughter and injury because a man cannot help it but he may fall into these But contracts are in every ones power wherefore one must bear with it if a man break his word and consider afore hand whom one trusts and not fill the Common-wealth with Law-suits And it was a constitution of Charondas that none should commence an action who had trusted another with the price of his commodity which also pleased Plato
of life The Persians it seems were of the same opinion whose King Dartus saith in the Historian I had rather dy by anothers crime than by my own Upon this ground the Hebrews said to dy was to be dismist as we may see not only Lu. 20. 29. but also in the Greek version Gen. 25. 2. Numb 20. in fine A phrase us'd by the Grecians too Themistius de anima They say a man that dyes is dismist and death they cal a departure or dismission In Plutarch's consolation the word is used in the same sense Until God himself dismiss us Yet some of the Hebrews concerning the Law of not Killing himself except one case as an honorable exit if one see he is like to live to the reproch of God himself For because they hold not we our selves but God hath power over our life as Josephus rightly instructed his soldiers they think a presumtion of the will of God is that alone which may perfect the resolution of anticipating death And to this they refer Samson's example who saw true Religion exposed to contempt in the sport made with him and Saul's who fell upon his sword that he might not be mocked by God's and his enemies For they suppose he repented after Samuel's ghost foretold him of his death which though he knew would come to pass if he did fight he nevertheless declined not the battail for his Country and the Law of God and thence got eternal honour even by David's Elogy who also gave to them that honorably buried Saul's body a testimony of their wel-doing There is a third example of Razes a Jerusalem Senator in the history of the Maccabees Moreover in the Christian history we read like examples of them that dyed by their own hands lest by the force of torments they should be compeld to forswear the Christian Religion and of Virgins who that they might not lose their virginity cast themselves into the river whom also the Church hath listed in the noble Army of Martyrs But yet of these it is worth our paines to see what Austins opinion is Another exception also I see obtained among the Greeks opposed by the Locri to the Phocenses That it is a common custom among all the Greeks to cast away sacrilegious persons unburied And so Dion Prusaeensis saith the impious and prophane are denyed burial The same at Athens was constituted against Traitors as Plutarch relates But to return to my purpose for sepulture denyed the antients with great consent have judged war may justly be undertaken as appears by the foremention'd history of Theseus handled by Euripides in his supplices and by Isocrates in the place alleged LXXVIII Of Punishments The Definition of punishment and the original FActs which are the causes of war are considerd two ways as they are to be repair'd or as they are to be punish'd This later part which is of punishments is the more diligently to be handled by us because the original and nature thereof not well understood hath given occasion to many errors Punishment in general is the evil of passion which is inflicted for the evil of action For though certain works are wont to be imposed upon some by way of punishment yet those works are to be consider'd only as troublesome and therefore are to be referrd to passions And the incommodities sufferd by some by reason of a contagious disease or a maimed body or other impurities such as are many in the Hebraw Law to wit to be kept from assemblies or functions are not properly punishments although for a certain similitude and abusively they are called so Now among the things which nature it self dictates to be lawful and not unjust this is one that he who hath done evil should suffer evil which the Philosophers call a most ancient and Rhadamanthean Law Pertinent is that saying of Plutarch Justice accompanieth God to punish them that transgress the Law Divine which all we men by nâ—…ture use against all men as fellows Plato said Neither God nor man will say that an offender ought not be punisht And Hierax by this as the noblest part defined Justice an exacting of punishment from offenders What we have said that punishment properly so named must be renderd to some offense this is also noted by Augustin All punishment saith he if it be just is the punishment of sin Which is to be understood of those punishments too that God inflicteth though in them sometimes by reason of human ignorance as the same Father speaketh the sin is secret where the punishment is not secret LXXI Who should punish an Evil-doer REason dictates that an evil-doer may be punished not who should punish him but that nature sufficiently sheweth it is most convenient to be done by him that is superior yet doth it not demonstrate this to be necessary except superior be taken in that sense that the evil-doer be thought to have made himself thereby inferior to any other and to have as it were degraded himself from the order of men into the number of beasts subject to man as some Divines have determined Democritus By nature it is ordaind that the better command the worse And Aristotle saith the worse are provided for the use of the better as well in naturals as artificials It follows hence that at least a guilty person ought not to be punisht by another equally guilty to which purpose is that sentence of Christ Whosoever of you is without sin such a sin let him throw the first stone Which he therefore spake because in that age the manners of the Jews were most corrupt so that they who would seem most pure were in the mire of Adultery and such like crimes as we may perceive Ro. 2. 22. The same that Christ had said the Apostle said also Therefore thou art inexcusable O man whosoever thou art that judgest for wherein thou judgeâ—… another thou condemnest thy self for thâ—… that judgest dost the same things Thâ—… of Seneca is pertinent The sentence 〈◊〉 have no authority where he that judgeth is to be condemned And elswhere The respect of our selves will make us more moderate if we consult our selves whether we also have not committed the like Ambrose in the Apology of David Whosoever will judge of another in him judge of himself first neither let him condemn lesser faults in another when himself hath committed greater LXXX Of the end of punishment NOcent persons are not injurd if they are punished yet doth it not thence follow that always they must be punished Nor is it true For both God and and men forgive many things to many nocent ones and are praised for it Famous is that saying of Plato which Seneca turnes to this effect No wise man inflicteth punishment because a fault is done but that it may be done no more For things past cannot be revoked the future
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
lawfull either to omit to exact it whither pertains that of Seneca Clemency hath free choice A wise man then say the Stoicks parcit non ignoscit spareth doth not pardon As if forsooth it were not lawfull for us with the common people the masters of speech to call that to pardon which they call to spare Truly both here and elswhere as Cicero Galen and others have noted a great part of Stoical disputations is spent about words which a Philosopher should principally take heed of After a penal Law the difficulty seems greater because the author of a Law is in some sort bound by his own Laws but this is true so far as the Author of a Law is considered as a part of the Commonwealth not as he susteins the person and authority thereof For in this later respect he may take away eveâ—… a whole Law because the nature of a human Law is to depend upon the will of man not in its original only but also in duration Howbeit the Author of the Law ought not to take away a Law except upon some approvable cause otherwise he will transgress the rules of just Goverment Now as he may totally take away a Law so may he unty the bond thereof as to a person or singular fact the Law remaining firm in other respects and this after the example of God himself who as Lactantius saith when he gave the Law deprived not himself of all power but hath reserved a liberty to pardon And Austin saith The Emperour may revoke his sentence and absolve a man guilty of death and pardon him he expresseth a reason for it because He is not subject to the Laws who hath it in his power to make Laws Seneca would have Nero think this No man at all can put any one to death against Law and no man beside my self can save any But this also is not to be done unless there be good reason for it And what are good reasons though it cannot be precisely defined yet this is certain they ought to be greater after the Law than those that were considerd before the Law because the authority of the Law which to be kept is profitable is now added to the causes of punishing XCIV Causes of freeing one from punishment of Law THe Causes of freeing one from punishment of Law are wont to be either intrinsecal or extrinsecal Intrinsecal when the punishment if not unjust yet is hard being compared with the fact Extrinsecal from some merit or other thing commending the person or also from good hope of him for the future which kind of cause will be then most sufficient if the reason of a Law at least particularly cease in the present fact For although to sustein the efficacy of the Law the universal reason be enough where no contrary reason is yet even the particular reason ceasing the Law may more easily and with less diminution of authority be disperised with This is most usual in those offences which are committed through ignorance though not without all fault or vincible but by reason of the minds infirmity not easily vincible Upon which offences a Christian Ruler of men ought to look with a gentle eye in imitation of God who in the old Covenant indeed required many such to be expiated with certain Sacrifices but in the new by words and by examples hath testified that he is ready to grant pardon of such to those that repent And truly that Theodosius was induc'd by those words of Christ Father forgive them they know not what they do to forgive the Antiochians is noted by Joannes Chrysostomus And hence appears how ill Ferdinandus Vasquius said a just cause of dispensing that is of loosing one from the Law is only that of which the Author of the Law being consulted would have said it was beside his meaning that it should be observed For he distinguisheth not between the equitable interpretation of the Law and the relaxation of it Whence in another place he reprehendeth Thomas and Sotus for saying The Law bindeth although the cause particularly ceaseth as if they had thought the Law to be the letter alone which never came into their minde All Relaxation of the Law which may oft be given and omitted freely is so far from equity properly so call'd that neither that relaxation which is due either out of charity or justice can be referred thither For to take away the Law either on probable or urgent cause is one thing another to declare the fact not to have been comprehended in the mind of the Law from the beginning XCV Of War for punishment and whether war be just for offences begun IT is manifest that wars are not to be undertaken for every offence for neither do the Laws bestow that their revenge which is safe and hurts only the nocent upon all faults Rightly saith the forecited Sopater That less and common transgressions are to be winked at not revenged Now that which Cato said in his Oration for the Rhodians that it is not equal any one should be punisht for an intent of doing evil was indeed well set in that case because no decree of the Rhodians could be alleged but only conjectures of their fluctuating minde yet is not this to be received universally For an intent or will that hath proceeded to external acts for the internal are not punished by men as we have said afore is wont to be lyable to punishment So the Romans decree a war against Perseus unless he give satisfaction for holding consultation and preparing war against the Roman people for indeed he had provided arms soldiers ships And this is well noted in the orations of the Rhodians which Livy hath recorded It agrees neither with the customs nor Laws of any Commonwealth that if one desire the destruction of his enemy and have done nothing to effect it he should lose his life Neither doth all ill will though declared by some deed make room for punishment For if sins finished are not all avenged much less are they that are purposed and begun In many that saying of Cicero may take place Perhaps it may suffice that the offender repent of his injury The Law given to the Hebrews against very many sins inchoated against piety or even against a man's life except judgment constituteth nothing special because both in things divine as being hard to be discerned by us it is easy to erre and the violence of anger is capable of pardon But when so many wives were easy to be had to injure anothers bed or when possessions were so equally divided by fraud to enrich himself with anothers loss was not to be endured For that Thou shalt not covet which is in the Decalogue though if you consider the scope of the Law that is the spirituality it be of larger extent for the Law would have all to be most pure in minde also yet as to the external
so also Kings beside the peculiar care of their own states have lying upon them the care of human society The chief reason for the negative opinion that such wars are not just is this Because God is sufficient to revenge offenses done against himself whence it is said The Gods take care of their own injuries and T is enough that perjun hath God for an Avenger But we must know that the same may be said of other offenses too For God no doubt is sufficient for the punishing of them also and yet are they rightly punished by men no man contradicting Some will reply and say other offenses are punished by men as other men are thereby harmed or endangered But on the other side we must note not only those offenses are punished by men which directly hurt other men but those also that do so by consequence as killing one self bestiality and some others Now though Religion by it self prevailes singularly to procure God's favour yet hath it also in human society very great effects And it is not without good reason that Plato calls religion the fortress of power and the bond of Laws and vertuous disciplin Irreligion on the contrary is the cause of all iniquity Jamblichus hath a saying of Pythagoras To know God is vertue and wisedom and perfect happiness Hence Chrysippus said The Law is the Queen of Divine and human things and Aristotle accounts among publick cares that about things divine to be the chiefest and the Romans defined skil in Law to be the knowledge of things divine and human And Philo describes the art of government the ordering of things private publick and sacred All which things are not to be considerd only in some one State as when Cyrus in Xenophon saith his subjects would be so much more obedient to him by how much more they feared God but also in the common society of mankind Take away Piety saith Cicero and you take away faith also and fellowship of mankind and that most excellent of all vertues Justice And hereof we have an evident argument in Epicurus who when he had taken away Divine providence left nothing of justice neither but an empty name saying It had its birth from agreement alone and endured no longer than common utility lasted and that we must abstein from things hurtfull to another only for fear of punishment His own words to this purpose very notable are extant in Diogenes Laertius Aristotle also saw this connexion who speaks thus of a King The people will the less fear any unjust usage from their Prince whom they believe to be religious And Galen where he had said many questions are made about the wor'd and the Divine Nature without any benefit to mens manners acknowledgeth the question concerning Providence to be of very great use both for private and publick vertues Homer also saw this who opposeth to men fierce and unjust those that are of a religious mind So Justin out of Trogus praiseth the antient Jews for their Justice mixt with Religion and Strabo commendeth them for being really just and pious Furthermore Religion hath greater use in that greater society than in the Civil because in the Civil State part of it is supplyed by Laws and an easy execution of the Laws when on the contrary in that great Community the execution of Law is most difficult not to be done without arms and the Laws are very few and these too have their sanctimony chiefly from the fear of a divine power whence offenders against the Law of Nations are usually said to violate the Divine Rightly therefore have the Emperors said that the pollution of Religion perteined to all mens injury as that wherein all mankind is concerned XCIX Four most common principles of Religion THat we may take a more perfect view of the whole matter we must note True Religion which is common to all Ages depends especially upon four principles 1. There is a God and He is One. 2. God is not any of the things visible but of a nature more sublime 3. All human affairs are under Gods providence and governed by his most righteous Judgment 4. The same God is Maker of all things without Himself These four are expressed in so many Precepts of the Decalogue For in the first is plainly deliverd the Unity of God in the second His invisible Nature therefore to make an Image of him is forbidden Deut. 4. 12. As Antisthenes also said He is not seen with eyes he is not like to any thing neither can be known by an Imageâ—… and Philo It is profane to exhibite an Image by picture or sculpture of Him that is invisible and Plutarch renders this cause why Numa took away Images from the Temples Because God cannot be conceiv'd but by the mind alone In the third precept is understood the knowledge and care of human actions and thoughts too for this is the foundation of an oath For God is call'd a witness even of the heart and if one deceive arevenger too whereby both the Justice of God is signified and his power In the fourth is acknowledged the beginning of the world by God's Creation for the remembrance whereof the Sabbath was instituted of old and that with a singular kind of sanctimony above other rites For if one had sinned against other rites the punishment of the Law was arbitrary as about forbidden meats if against this 't was capital because the violation of the Sabbath by the institution conteined a denyal of the world's Creation by God And the world's being created by God tacitly declares his goodness and wisedom and eternity and power Now from these contemplative notions follow the active viz. That God is to be honour'd lov'd worshipped and obeyed Wherefore Aristotle said he that denyeth God is to be honour'd or Parents to be loved is not to be refuted with arguments but with stripes And elswhere That it is the duty of an honest man every where to honour God Moreover the verity of these notions which we call contemplative doubtless may be demonstrated even by arguments fetchâ—… from the nature of things amongst which that is of most force that sense assures us some things were made and the things made plainly lead us to something that was not made But because this reason and other the like are not apprehended by all men it is sufficient that from the beginning to this present in all parts of the world all men aâ—… very few excepted both of the simpler sort that would not deceive and of the wiser sort that would not be deceived have consented to these notions which consent in so great variety both of Laws and other opinions evidently shews the tradition propagated from the first men to us and never solidly refuted and this alone is enough to procure belief What we have set down afore concerning God agrees
err with a good mind not out of hatred but love of God believing that they honour and affect the Lord. Although they have not a right faith yet they esteem this to be perfect charity and how they are to be punisht for this error of their opinion at the day of Judgment none can know but the Judge In the mean therefore as I conceive God lends them patience because he sees them though not right believers yet erring through affection of a pious opinion Concerning the Mantchees let us hear him who stuck long in their mire Augustin Let them rage against you who know not with what labour Truth is found and how hard it is to avoid errors Let them rage against you who know not how rare and difficult it is to overcome carnal phantasms by serenity of a pious mind Let them rage against you who know not with what groanes and sighs it is effected that in any sort God may be understood Lastly let them rage against you who are deceived with no such error as they see you are deceived with For my part indeed I cannot rage against you with whom as once with my self I ought now to bear and treat you with as much patience as my friends shewed to me when I went astray in your opinion mad and blind Athanasius sharply inveighs against the Arian heresy because it first used the power of the Judges against Dissenters and endeavoured to draw unto it self by stripes and imprisonment whom iâ—… could not prevail with by perswasion and so saith he it manifesteth it self how far it is from piety and from the worship of God respecting as I take it that which is read Gal. 4. 29. Hilary hath a like passage in his Oration to Constantin In Gallia long since were condemned by the judgment of the Church the Bishops who took order that the Priscillianishs might be convicted with the sword and in the East the Synod was condemn'd which had consented to the burning of Bogomilas Wisely said Plato It is the fittest punishment for one in error to be made to learn CIV Justly are they punisht that are irreverent to the Gods they own MOre justly shall they be punished who are irreverent and irreligious toward those whom they think to be Gods And this was alleged among other causes of the Peloponnesian war between the Athenians and Lacedemonians and by Philip of Macedon against the Phocenses of whose sacrilege Justin thus It was athing that ought to be expiated by the forces of all the world Hierom on the sixt of Daniel So long as the vessels were in the Idol-temple of Babylon the Lord was not angry for they seemed to have consecrated the things of God to divine worship though by an erroneous opinion they mistook the Deity but after that they pollute the divine things by human uses presently punishment waits upon the sacrilege And truly Austin is of opinion that God advanced the Empire of the Romans because though in a false way they were so studious of religion and as Lactantius speaks performed the chiefest business of man though not in truth yet with a good intention And we have said above that perjuries even by false Gods are revenged by the true God He is punished said Seneca because he did it as to God his opinion makes him liable to punishment So alâ—… do I take that other saying of Seneca li divers places the violators of Religion on punisht diversly but every where they are punisht and that of Plato likewise where he condemnes them as capitall offenders CVI. Of Communication of punishment How it passeth to partakers of the fault WHen the question is about Communication of punishment either we mean partakers of the fault or others They that are partakers of the fault are punished not so much for anothers as for their own offense They then that command a vitious act that give consent required that aid or entertain or any other way partake in the crime that give counsel that praise and encourage that when by right properly so called they are bound to forbid do not forbid or when they are bound by like right to help the sufferer of injury do not help that do not disswade when they ought to disswade that conceal the fact which they were bound by some Law to make known all these may be punisht if there be found in them such malice as may suffice to the merit of punishment according to the rules set down afore CVI. The Community or Rulers are engaged by their subjects fault if they know and do not forbid it when they can and ought THis point will be more cleered by examples As another Community so also the Civil is not to answer for the fact of particular men without committing or omitting somewhat themselves S. Augustin saith well We must make a difference between the proper sin of every one and the common sin of the people which is committed by a multitude disposed to it with one heart and one will Hence it was in the form of leagues If there be a failing by publick Counsel The Locrians in Livy make remonstrance to the Roman Senate that the defection did not proceed from any publick determination In the same Author Zeno interceding for the Magnetes to T. Quintus and the Legats with him besought them with tears That the madness of one might not be imputed to the City but that the Doer might run the peril of his own actions And the Rhodians before the Senate separate the publick cause from the private saying There is no City which hath not sometimes wicked Citizens and a rude multitude alwayes So neither is a Father bound by the fault of his children nor the Master of his servants nor other Governours except somewhat that is vitious adhere to them Now among the wayes whereby Governouis of other men become guilty there are two of especiall use and require our diligent consideration Sufferance and Receipt Of sufferance we determine thus He that knows a fault to be done that is able and bound to forbid it and doth not is guilty Cicero against Piso Nor is the difference much especially in a Consul whether himself by pernicious Laws and wicked speeches vex the Commonwealth or suffer others to vex it Brutus to Cicero You will say then Do you make me guilty of anothers fault Yes truly if it were in you to hinder it So in the Army of the Grecians where Agamemnon himself and the rest were under the Common Council it is right that the Grecians were punisht for the offences of their Princes because it was in their power to compel Agamemnon to render the Priest his daughter It is in Livy The Kinsmen of King Tatius beat the Embassadors of the Laurentes and when the Laurentes pleaded the Law of Nations Affection to his friends prevailed more with Tatius
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
Cicero likewise and Quintilian The lighter evil obteins the place of good when several evils are compar'd together CXVI How the Judgment in drawn either way BUt for the most part in doubtfull matters after some examination the mind sticks not in the midst but is drawn this way or that by Arguments taken from the matter it self or from the opinion a man hath of other men pronouncing sentence about it For here also is true that of Hesiod It is most excellent to be able to direct oneself next to follow the good direction of another Arguments from the matter are deduced from the causes effects and other adjuncts But to the right discerning of these there is need of some experience and skill they that have not this to conform their active judgment rightly must hear the Counsils of wise men For those things saith Aristotle are probable which seem so to all or to most or at least to wise men and to these again either all or most or the more excellent And this way of judging is most used by Kings who have not leisure themselves to enter into the depth of learning The company of wise men brings Learning and Wisedom unto Kings Aristides saith As in questions of fact that is accounted for truth which is supported by most and most sufficient witnesses so those sentences are to be followed which are grounded upon most and most worthy authorities Thus the old Romans entred into war not without consulting the College of the Feciales instituted for that end nor the Christian Emperours scarce ever without advising with the Bishops that if any thing did hinder in point of Religion they might be admonisht of it CXVIII In doubtful cases the safer way is to be taken Three ways to avoid a doubtfull war NOw it may fall out in many Controversies that on either side probable arguments may shew themselves whether intrinsecal to the matter or from authority In this case if the matter be of smal moment the choice which way soever it be seemeth to be free from fault But if it be a weighty question as concerning the life and death of a man here because of the great difference between the things to be chosen the safer way is to be preferred Therefore it is better to acquit the guilty than condemn the innocent The writer of the problems that bear the name of Aristotle saith so and addes the reason which we have already given For where one doubts he must chuse that part wherein the offense is less War is a thing of the greatest consequence from which very many evils are wont to follow even upon the innocent wherefore when judgments differ we must incline to peace And three ways there be to keep Controversies from breaking forth into war The first is Conference Being there are two kinds of discipation saith Cicero one by conference the other by force and that is proper to man this to beasts we must fly to the later if we cannot use the former Phaneas in Livy saith To avoid a necessity of war men do willingly remit many things which cannot be forced from them by arms Mardonius in Herodot us blames the Grecians in this respect Who being of one language should have determined their Controversies by Commissioners and not by battell Coriolanus in Halicarnessensis If one desire not anothers but seek his own and upon denial make war all men confess it to be just In the same Halicarnessensis King Tullus Arms must decide what words are not able to compose Vologeses in Tacitus I had rather preserve my Ancestors possessions by equity than blood by a fair tryall than by force And King Theodoricus Then only is it profitable to go to war when Justice can find no place among our Adversaries Another way to avoid war among them that have no common Judge is Compromise It is not lawful saith Thucydides to invade him as injurious who is ready to submit to an Arbitrator So concerning the Kingdom of Argos Adrastus and Amphiaraus made Eriphyles their Judge as Diodorus relates Concerning Salamis three Lacedaemonians were chosen judges between the Athenians and Megareans In the now-cited Thucydides the Corcyreans signify to the Corinthians their readiness to debate their quarels before the cities of Peloponnesus which they should agree upon And Pericles is commended by Aristides for his willingness to have differences arbitrated that war might be avoided And Philip of Macedon is praised by Isocrates for that he was ready to permit the Controversies he had with the Athenians to the arbitration of any impartial City Plutarch saith this was the principal office of the Feciales among the Romans not to suffer things to come to a war till all hope of obteining a quiet end was lost Strabo of the Druids of Gallia They were of old arbitrators between enemies and often pacified them when they were entring into battell The Priests in Iberia performed the same office as the same Author testifies Now Christian Kings and Commonwealths are most of all bound to take this course to avoid war for if to avoid the sentences of Judges that were aliens from true Religion certain Arbitrators were constituted both by Jews and Christians and that is given in precept by Paul how much more is the same to be done that war which is a far greater incommodity may be avoided So Tertullian somewhere argues that a Christian must not follow the wars to whom it is not lawful so much as to go to Law Which yet must be understood according to what we have said elswhere with some temperament And both for this and for other causes it were profitable yea in some sort necesary to be done that some Assemblies of Christian powers were held where the controversies of others might be determined by Judges that are unconcerned yea and a course taken to compell the parties to entertain peace upon equal termes which use also was made of the Druids among the Galls as Diodorâ—… and Strabo have delivered And we read the French Kings about division of the Realm permitted the judgment to their peers The third way is by Lot which is to this purpose commended by Duâ—… Chrysostom in his second Oration against Fortune and long before him by Salomen Prov. 18. 18. Somewhat neer to Lot is Single Combat the use whereof seems not altogether to be refused if two whose Controversies otherwise would involve whole multitudes in very great mischiefs be ready to sight one with the other For it seems if not rightly to be done by them nevertheless acceptable to the people on both sides as a less evil Metiâ—… in Livy speaks to Tullus after this manner Let us take some way whereby without much slaughter and blood of boâ—…h parts it may be determined which people shal be superiour Strabo saith this was the old custom of the Grecians and Aeneas in Virgil saith
it was meet that the matter should be ended on this wise 'twixt him and Turnus Certainly among other customs of the ancient Franks this is at large commended by Agathâ—… in his first book whose words are worthy to be added If any Contraversies happen to arise between the Kings they all muster their force's as it were to determine the matter by battell and they march forth into the field But so soon as the Armies have faced each other they lay aside anger and embrace concord perswading their Kings to put their differences to triall of Law or if they will not do that to enter into single combat and bring the matter to an end only with their own danger Because it is neither agreeable to equity nor the orders of their Countrey that they for their proper hatreds should weaken or overthrow the common good Wherefore presently they disband and the causes of their quarels being taken away peace is reestablished and muital security assured So great care of Justice and love of their Country is in the Subjects so gentle and yielding a disposition is in the Kings Now although in a doubtfull case both parts are bound to seek condition whereby war may be avoided yet is he more bound who requireth than he who possesseth For that in an equal case the condition of the possessor is the better is a point not only of the Civil but of the Natural Law And here is further to be noted that War cannot lawfully be undertaken by him who knoweth he hath a just cause but hath not sufficient proofs whereby he may convince the possessor of the injustice of his possession The reason is because he had no right to compell the other to depaâ—… out of his possession And lastly when both the right is ambiguous and neither possesseth or Both equally there he is to be thought unjust who rejecteth the offered division of the thing in conâ—…versy CXIX Whether war may be just on both sides OUt of the premises may be determined that Question agitated by many whether War respect being had of them that are the principal Movers of it may on both sides be just For the various acceptions of the word just are to be distinguished A thing is called just either from the cause or according to the effects From the cause again either in a special acception of justice or in that general use of the word as all rectitude is so called The special acception is agaiâ—… divided into that which perteineth to the work and that which perteineth to the worker For the worker himself sometime may be said to do justly as oft as he doth not unjustly though that which he doth be not just So Aristotle rightly distinguisheth to do unjustly and to do the which is unjust War cannot be on both sides just in the acception special and related to the thing it self as a sute in Law neither because a moral facultie to contraries to wit both to act and to hinder is not granted by nature But that neither of the parties warring may do unjustly is possible for no man doth unjustly but he that also knows he doth an unjust thing and many are ignorant of that So may a sute be followed justly that is with an honest mind on both sides For many things both in point of right and fact whence right ariseth are wont to escape men In a general acception just is wont to be called that which is without all fault of the Doer And many things without right are done without fault through ignorance inevitable An example whereof is in them who observe not the Law which without their fault they are ignorant of after the law it self is promulged and time sufficient by it self for knowledge hath passed So also in Law-sutes it may happen that both parties may be free from injustice and all other blame especially where both parties or either goeth to law not in his own but anothers name to wit by the office of a Tutor or Guardian whose duty is not to desert any right though uncertain So Aristotle saith in contentions of controverted right neither is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wicked With whom Quintilian agrees when he saith it may come to pass that an Orator that is a Good man may plead on both sides Yea Aristotle also saith a Judgâ—… may be said to judge justly two wayes â—…ther when he judgeth plainly as he ougâ—… or when he judgeth according to 〈◊〉 judgment conscience And in anotheâ—… place If one hath judged through igâ—…rance he hath not done unjustly Nevertheless in war it can hardly fall out be there will be at least some temerity and defect of love by reason of the weight of this business which in very deed is sâ—… great that not content with probabâ—… causes it requireth grounds most evidenâ—… But if we take just according to some effects of right it is certain war on bâ—… sides may be just in this sense as will appear by what we shall say of publick â—…lemn war in the next part And in like manner a Sentence not given according to right and Possession without right have some effects of right CXX ADMONITIONS For the eschewing of War Right is often to be remitted THough it seemeth not properly a paâ—… of our work our Title being of thâ—… Right of war to declare what other vertues give in charge concerning it neveâ—…theless on the By we must meet 〈◊〉 this errour of such as think where 〈◊〉 Right is manifest enough war presenâ—…y either must or alwayes may lawfully be undertaken For the contrary is true that for the most part it is more pious and honest to depart from ones right That we may honestly forsake the care even of our own life that we may provide as much as lies in us for the eternal life and salvation of another hath been shewed afore Which is especially the duty of Christians therein imitating the most perfect example of Christ who dyed for us while we were his enemies This doth much more excite us not to pursue our worldly interests with so much hurt of other men as Wars do carry with them That for every such cause war is not to be waged even Aristotle and Polybius do advise Nor was Hercules commended by the Antiens for commencing war against Laomedon and Augias because they paid him not for his labour Dion Prusaeensis in that Oration which is of War and Peace saith it is not only enquir'd whether They against whom we intend war have done us injury but whether the injury be of such moment that it may deserve a war CXXI Punitive right especially is to be remitted TO omit punishments many things do exhort us Consider how many faults Fathers connive at in their Children Whereof Cicero hath a dissertation in Dion Cassius A Father saith Seâ—…ca except many and great offenses have overcome his patience except he hath more to
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
bound for a debt yet therein is nothing contrary to nature and the custome not of the Greeks only but of other Nations prevailed on the other side In like manner to recover 〈◊〉 Citizen taken captive by manifest in juâ—…y are the Citizens of that City where the injury was done reteined Wherefore â—…ome at Carthage would not suffer Ariâ—…on the Tyrian to be taken For said they the same will befall the Carthaginians at Tyre and in other towns of Trade wherto they often resort Another specier of violent execution is Pignoration among divers Nations which the later Lawyers call the right of Reprizals the Saxtus and the English Withernam and the French even when it is obtained of the King Letters of Marc. And this haâ—… place say the Lawyers where right is denyed XVIII Of Reprizals after right denyed Life is not engaged RIght of Reprizals cometh not only if Judgment cannot within fit time be obtained against the guilty part 〈◊〉 Debtor but also if in a matter not doubtful for in a doubtful matter there is 〈◊〉 presumption for them who are elected 〈◊〉 publick judgments judgment be given plainly against right For the authority of the judge is not of the same valâ—… over foreiners as over subjects Even amongst subjects it taketh not away wâ—… was truly owed A true Debtor 〈◊〉 he be abslved yet by nature remains 〈◊〉 Debtor saith Paul the Lawyer Aâ—… when by the injury of the judge the Cuâ—…tor had taken away from the owner a thâ—… which was not the debtors as engage to him and the question was put wheâ—… the debt being paid the thing ought 〈◊〉 restored to the Debtor Scaevola prov'd it ought to be restored There is this difference that subjects cannot by force hinder the execution even of an unjust sentence nor lawfully pursue their right by force by reason of the efficacy of the power over them but foreiners have right to compell which yet they cannot use lawfully so long as they may obtein their own by judgment Upon such a ground then that either the bodyes or movables of his subjects who renders not right may be taken 't is not introduc'd indeed by nature but commonly received by custome The most antient example whereof is in Homer where Nestor is related for horses taken from his father to have driven away the Cattell of the Elidenses and in the same narrations All they were by proclamation call'd together to whom the Elidenses were any thing endebted to the end that every one might have his part But that the life of innocent subjects should be engaged for such a cause perhaps was believed amongst some people upon this principle that they believ'd every man had full right over his own life and that might be transferd on the Common-wealth which we have said elswhere is not probable nor consentaneous to sounder Theology Nevertheless it may fall out not by intention but by accident that they may be slain who by force will hinder the execution of right But if this be foreseen by the Law of charity we have shewed other where the prosecution of right is rather to be omitted seeing by that law the life of man ought to be more esteemed among Christâ—… especially than our Goods as we here demonstrated already XIX A distinction in this matter 'twixt the Law Civil and the Law of Nations BUt in this matter as well as in others we must beware that we confound not those things which are properly of the Law of Nations and those which are constituted by the Civil Law or the agreements of people By the Law of Nations are under pignoration all subjects doing injury who are such by a permanent cause whether they be natives 〈◊〉 strangers not they that are in any Countrey passing through it or staying a liâ—… while For pignorations are introduced after the example of burthens which are brought in for discharging of publick debts from which they are freed who only for a time are subject to the Laws of the place Yet from the number of subjects are exempted by the Law of Nations Embassadors not sent unto 〈◊〉 enemies and their Goods But by the Civil Law of States are usually excepted the persons of women and Infants and the Goods also of Scholars and Merchants By the Law of Nations every one hath the right of pignoration as also at Athens in the apprehension of men By the Civil Law of many Countries it is wont to be asked in some places of the Highest power in some of the Judges By the Law of Nations ipso facto the dominion of the things taken is acquired to the sum of the debt and costs so that the â—…sidue ought to be restor'd By the Civil Law they that are concernd are wont to be cited and the things are to be sold by publick authority or addicted to those that are concern'd But these and other points are to be learned of the Civil Lawyers and namely of Bartolus who hath written Of Reprizals Onely this I will â—…ere add because it belongs to the molliâ—…ying of this right rigid enough of it self That whosoever by not paying what they â—…wed or by not doing justice gave cause â—…o pignorations they are obliged by natural and Divine Law to repair their â—…osses who are dammaged thereby XX. Of just and solemn War by the Law of Nations Between whom this war is and that it must be denounced ABove we began to say that a just war in approved authors is often called so not from the cause whence it ariseth nor from the greatness of the actions but by reason of some effects of law What this war is is best understood by the definition of enemies in the Roman Lawyers Enemies are they who against us or against whom we do publickly decree war the rest are theeves or robbers saith Pomponius and so saith Ulpian too Where what they speak of the Roman people we must understand of every supreme power He is an enemy saith Cicero who hath a Commonwealth a Court a Treasury consent and concord of Citizens and some way if occasion be of peace and league Yet doth it not presently cease to be a Commonwealth or City if it commit some unjust act even in Common nor is a company of Pirats or Robbers a Commonwealth though perhaps they keep a kind of equality among themselves without which no company is able to consist For These associat themselves to do mischief They although sometimes they are not without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with every other Nation or according to customs So the Greeks at what time it was accounted lawful to take spoil at Sea absteined from slaughters and populations by night and from stealing Oxen that plowed
as the Scholiast upon Thucydides observes And other Nations living also upon the spoil when they were come home from Sea sent unto the owners to redeem if they pleased at an equal rate what they were robbed of as Strabo saith Now the principal in moral matters is instead of the form and as it is rightly said by Cicero and Galen The denomination is given from the greater part Wherefore the same Cicero speaketh too crudely saying in his third De Republicâ where is an unjust King or unjust Senators or an unjust people there is not now a vitious but no Common-wealth Which sentence S. Augustiu correcting saith Yet I shal not therefore conclude it to be no people nor Common-wealth so long as there remaineth a rational multitude joyned together in a sociable Communion of things which they love A diseased body is nevertheless a body and a City though very sick is a City as long as Laws remain Courts of Justice remain and other things necessary that foreiners may there obtain right as well as private men among themselves Better spake Dion Chrysostom who said the Law that especially which makes the right of Nations is in a Common-wealth as the soul in the body of man which being taken away 't is no longer a Commonwealth And Aristides in that Oration wherein he exhorts the Rhodians to concord shews that many good Laws may consist even with Tyranny Now although there be so great a difference between a people how wicked soever and them that being not a people come together for wickedness yet may a change happen not only in single persons as Jephtha Arsaces Viriatus of Captains of Robbers became just Captains but in companies also as they that were only Robbers embracing another kind of life may become a Common-wealth Moreover who they are that have the Highest power we have said above whence it may also be understood If any have it in part for that part they may wage a just war and much more they who are not subjects but unequally confederate as between the Romans and their Fellows though inferiour in League the Volscians Latins Spaniards Carthagenians all things of a just War were exercised as the Histories inform us But that war may be just in this sense it sufficeth not that it be waged between Highest powers on both sides but it is requisite as we have heard that it be publickly decreed and truly so decreed publickly that the signification thereof be made by the one party to the other whence Ennius calls them promulgata pralia promulged battells It is a just war which is waged by edict saith an antient writer in Isidore things being requir'd or for resistance of Enemies and Livy put it in the description of a just war that it be commenced with an Edict and in an open manner XXI In denouncing war what is of the Law of Nature what proper to the Law of Nations FOr the understanding of the places last cited and other like about the promulgation of war we must accurately distinguish what things are due by the Law of Nature what by nature are not due but honest what things by the Law of Nations are requir'd to the proper effects of the same Law and what proceed from the peculiar institutes of some Nations By Natural Law where either force offerd is repelled or punishment exacted of one that hath offended no denuntiation is required there And this is that which Stenelaidas the Ephor saith in Thucydides We must not stand debating with words and arguments being iniur'd beyond words And Latinus in Halicarnassensis He that is assaulted with 〈◊〉 is wont to repell his enemy And Aelin out of Plato saith War undertaken to resist violence is indicted not by an Herall but by nature Hence Dion Chrysolm affirms Most wars are made without proclamation And for no other cause Livy objects to Menippus prefect of Antioch that he had slain certain Romans waâ—… being neither proclam'd nor so begun that they had heard of swords or any blood as yet drawn thereby shewing either of these two might suffice for a defense of his deed Neither is Indiction more necessary by the Law of Nature if a Lord will lay hands upon his own goods But as oft as one thing is invaded for another or the debtor's goods for the debt and much more if one will seise upon the goods of them that are subject to the debtor Interpellation is required whereby it may appear we had no other way to come to our own or that which is due unto us For that right is not primary but secondary and surrogate So also before the Supreme Governour may be invaded by war for the debt or the offense of the subject there ought to intercede an Interpellation that may constitute him in a fault whereby he may be esteemed to do a dammage or to be delinquent according to what we have discoursed above Yet further where the Law of Nature commandeth not such an interpellation to be made it is honestly and commendably interposed to wit that the adverse party may abstein from offending any more or the offense given may be expiated by repentance and satisfaction according to what we have said of using means to avoid war Pertinent here is that Precept which God gave unto the Hebrews that they should make offer of Peace to the City that was to be assaulted which precept being specially given to that people is by some ill confounded with the Law of Nations Nor indeed was that any other peace but 〈◊〉 condition of subjection and Tribute Cyrus when he had marched into the Armenians Country before he did hurt any man sent Messengers to the King to demand Tribute due upon the League and soldiers Supposing that to be more friendly and courteous than to lead on farther and sâ—…r nothing As Xenophon speaks in that History But by the Law of Nations to those peculiar effects in all cases is requir'd denuntiation not on both but on the one party This denuntiation is either Conditionate or Pure Conditionate where it is join'd with Remanding of Things And in the name of Res reperitae the Heralds Law comprehended not only vindication by right of dominion but also the prosecution of that which is due upon a Civil or Criminal cause as Servius explains it rightly Thence was that in the forms To be rendred To be satisfyed To be yielded Where To be yielded as we have said elswhere is to be understood unless they that are call'd upon will rather punish the guilty themselves This requiring of Things Plixy testifies was named Clarigation That denuntiation in Livy is conditionate That they will with all their power depell that injury except it be remedied by those that did it And in Tacitus Unless they specdily bring the offenders to punishment He will make promiscuous slaughter Pure denuntiation
is that which is specially Indiction or Edict where either the other hath already begun the war this is that which in Isidore is called war to beat off men or himself hath committed such faults as deserve punishment But sometime the Pure follows the Conditionate though that be not necessary but ex abundanti Hence is that form I testify that people is unjust and will not do right This also is an argument of supervacuous observation that war hath oft been proclamed on both sides as the Peloponnesian by the Corcyraeans and Corinthians when it is sufficient that it be indicted and proclamed by either Furthermore from the custom institutes of some Countries not from the Law of Nations are the White Rod among the Greeks the Turfs and bloody spear among the Aequicolae first and by their example among the Romans the renouncing of friendship and society if there had been any thirty solemn days after demaund made the throwing of the spear again and other things of like kind which ought not to be confounded with those that properly belong to the Law of Nations For a great part of these ceased to be used saith Arnobius in 〈◊〉 time yea in Varro's time some of them were omitted The third Punick War 〈◊〉 at once indicted and begun Maecenâ—… Dion will have some of them to be proper to a popular State XXII War proclamed against any one includes his Subjects and Adherents But not as considerd by Themselvet MOreover War indicted against him who hath the highest power over the people is witha l suppos'd to be indicted against all His not only subjects but those too who will join themselves unto him as being an accession to his party and this is that which the later Lawyers say The Priâ—…ce being diffâ—…ed his Adherents also are diffâ—…ed For to indict war they call To diffâ—… Which is to be understood of that same war which is waged against him to whom it is indicted As when war was denounced against Antiochus They were not pleased to denounce it against the Aetolians apart because they had openly join'd themselves with Antiochus The Heralds answerd The Aetolians have declared war of their own accord against thomselves But thâ—… war being ended if another People 〈◊〉 King for supply of aids is to be waâ—… against that the effects of the Law of Nations may follow there will be need of a new Indiction For now he is not â—…ookt upon as Accessory but Principal Wherefore it is rightly said that by the Law of Nations neither the war of Manlius upon the Gallo-Greeks nor of Caesar upon Ariovistus was Lawfull for they were not assalted now as an accession of a Neighbours War but principally to which purpose as by the Law of Nations Indiction so by the Roman Law a new command of the Roman people was necessary For what was said in the proposal against Antiochus Was it their will and pleasure that War should be enterd with King Antiochus and those that followed his party which was observed too in the Decree against King Perseus seemes truly understood so long as the War continued with Antiochus or Perseus and of those that really immixed themselves in that War XXIII The Cause why Denuntiation is requisite to some effects which are not found in other Wars NOw the cause why Nations requir'd Denuntiation to that war which we have said to be just by the Law of Nations was not that which some allege that they might do nothing privily or 〈◊〉 deceit for that perteins rather to the 〈◊〉 cellence of their valour than to righâ—… some Nations are read to have appointed their enemies the day and the place of battell but that it might certainly appear the War was not waged by a prinâ—… undertaking but by the will of either people or their Heads For thence are sprung those peculiar effects which have place neither in war against Robbers nor in that which a King wageth against his Subjects Therefore Seneca spake distinctly Wars were indicted against Neighbours or waged against Citizens As to that which is noted by some and shew'd by examples That ever in such wars the things taken become theirs that take them it is true but on the one part onely and that by natural rigâ—… not by the voluntary right of Nations as that which provides for Nations only not for those which are no Nation or part of a Nation Besides they erre 〈◊〉 this that they think War undertaken for defense of ones self or ones Goods needs no indiction for it doth need not simply but in regard of those effâ—… which we have begun to speak of and 〈◊〉 explain anon XXIV War may be indicted and waged together War indicted for violation of Embassadors NEither is that true that War may not be waged presently as soon as it â—…s indicted which Cyrus did against the Armenians the Romans against the Carthaginians as we said even now For Inâ—…iction by the Law of Nations requiâ—…eth no time after it Yet may it come to â—…ass that by natural right some time may be required according to the quality of the business to wit when things are demanded or punishment requir'd upon the guilty and that is not denyed For â—…en such time is to be allowed whereâ—… that which is requir'd may commodiâ—…ully be done And if the right of Emâ—…assages be violated it will not therefore be unnecessary to denounce War but 〈◊〉 will suffice to do it as it may be done â—…afety that is by Letters as also citaâ—…ons and other denuntiations are usually made in places not safe XXV The right of killing enemies in a solemn War The effects of that War in generall TO that of Virgil Then it will be lawful to hate and fight and 〈◊〉 spoil Servius Honoratus when he had deduced the Original of the Heralds law from Ancus Martius and farther from the Aequicolae saith thus If at any time men or beasts were by any nation taken away from the people of Rome the Pater paâ—… tus went with the Heralds that is Prâ—… who have authority in making of Leagâ—… and standing before the bounds 〈◊〉 loud voice pronounced the cause of the War and if they would not restore the things taken or deliver up the Author of the injury he threw a spear which 〈◊〉 the beginning of fight and thence forbid was lawful after the manner of War 〈◊〉 take the spoil Whereby we learn 〈◊〉 there are certain proper effects of We indicted between two Nations or thâ—… heads which effects do not follow 〈◊〉 as it is considered in its own nature Thâ—… agrees very well with what we noted 〈◊〉 fore out of the Roman Lawyers XXVI Lawful is distinguisht into that which is done without punishment and that which is done without fault BUt Virgil's Licebit it will be lawful Let us consider what importance it hath For sometime that is said to be
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
Scavola's boldness * was authoriz'd by those old Roman Senators so religious in their Wars Nor ought any one to be mov'd with this that such being taken are wont to be extremely punisht for that proceeds not from their having offended against the Law of Nations but from this that by the same Law every thing is lawful against an enemy and every one as it is for his own profit determineth either more rigourously or more gently For so also Spies who doubtless by the Law of Nations may be sent such as Moses sent such as Joâ—…a himself was being deprehended were used very ill The custom is to put spies to death as Appian saith justly sometimes by these that manifestly have a just causâ—… of Warring by others by that licence which the Law of war granteth As 〈◊〉 those that have refused such offerd service their refusal is to be referd to their nobleness of mind and their confidence in their known strength not to any opinion of just or unjust But concerning those Murtherers whose act hath perfidiousness in it we must make another â—…udgment Nor do they themselves only act against the Law of Nations but they also that use their service For though in other things who use the service of wicked men against an Enemy are judged to sin before God not before Men i. e. against the Law of Nations because in that point customes have overpowred Laws and to deceive after the manner of the times as Pliny speaks is Prudence Nevertheless that custome hath stayed beneath the right of killing For here who useth anothers treachery is believ'd to have violated the Law not of Nature only but of Nations This is signified by those words of Alexander to Darius Ye undertake iâ—…pious wars and though ye have arms ye bid mony for the heads of your enemies And a little after Ye have not kept the Laws of War with me Elswhere He is to be pursued by me to his utter ruine not as a just Enemy but as a Murtherer and Poysoner That of Valerius Maximus is pertinent The death of Viriatus hath a double charge of perfidiousness one against his friends because he was stain by their hands another against Q. Servillus Coepio the Consul becauso the was the Author of this wickedness having promised impunity and so desoâ—…ed not the victory but bought it The cause why it was determined so in this case and not in others is the same we set down before concerning poyson viz. lest dangers should be too much heightend especially theirs who are most high Eumenes said he did not believe any Commander would be willing to overcome so as to give a very bad precedent against himself And in the same Historian when Bessus had laid hands upon Darius it is said a matter of example and the common cause of all Kings This therefore is not lawful in a solemn war or among them who have right to proclame a solemn War but without that it is accounted lawful by the same Law of Nations So Tacitus saith the treachery against Gannascus a revolter was not degenerous Curtius saith the perfidiousness of Spitamenes might be the less odious because nothing seemed impious against Bessus the Murtherer of his King So also to be perfidious to Theeves and Pirats though not without fault is unpunisht among the Nations because such rogues are hated XXXIII Of ravishing of Women in War RAvishing of Women you shall often read in war both permitted and not permitted They that have permitted it considered only the injury offerd to anothers body to which they judged it meet for the Law of arms whatever is the enemies should be subject Better minded were others who considered here not the injury alone but the very act of inordinate wild lust and that it perteins neither to security nor to punishment and therefore it ought not to be unpunisht no more in war than in peace This latter is the Law not of all Nations but of the best So Marcellus before he took Syracuse is related to have taken care of preserving chastity even in the enemy Scipio saith in Livy If concern'd him and the people of Rome that nothing which is any where sacred should be violated by them any where i. e. among the more vertuous and Civil Nations Diodorus Siculus of the Soldiers of Agathocles They did not abstain no not from dishonouring and forcing Women Aelian when he had told how the Sicyonian conquerors had prostituted the Pellenaean women and virgins exclames Cruel acts Oye Gods of Greece and so far as I can remember dishonest even in the sight of Barbarians And it is fit to be observed among Christians not only as a part of military disciplin but also as a part of the Law of Nations that whosoever hath violently injur'd Chastity though in War should every where be obnoxious unto punishment For neither by the Hebrew Law should any such offender have escaped as may be understood by that part of it constituted about marrying a Captive and not selling her afterward Upon which place Bacchai the Hebrew Master It was Gods will that the Camp of the Israelites should be holy not polluted with whoredomes and other abominations like the campes of the Gentiles Arrian when he had related how Alexander taken with the love of Roxane would not abuse her as a captive through lust but vouchsafed her the honour of Marriage addes a commendation of the deed Plutarch of the same deed He did not lustfully abuse her but as became a Philosopher took her for his wife And one Torquatus because he had offerd violence to a Virgin of the enemies was carried away into Corsica by decree of the Romans as the same Plutarch has it XXXIV Of Wast The Enemies things may be spoyled CIcero said It is not against nature to spoil him whom it is lawful to kill No wonder then that the Law of Nations permitted the goods of enemies to be spoiled when it had permitted themselves to be slain Polybius in the fift of his Histories saith it is comprehended in the Law of war that the fortifications Havens Towns Men Ships Fruits of the Enemies and all things like may either be carryed away or destroyed And in Livy we read There are certain Laws of War which are right to be done or sufferd namely for fields to be burnt houses ruin'd spoiles of men and cattell to be brought away You may find in Historians almost in every page whole Cities overthrown or walls levelled with the ground populations and burnings of the Countrey And we must note such things are lawful also upon those that yield The Townsmen saith Tacitus opening their gates submitted themselves and all they had to the Romans Themselves were spared the Town was fired XXXV Of spoiling things sacred and religious NOr doth the meer Law of Nationâ—… the consideration of other duties laid aside of which we shall speak below except sacred
things i. e. Such as are dedicated to God or to the Gods When places are taken by the enemies all cease to be sacred saith Pomponius the Lawyer The sacred things of the Syracusians Victory made profane saith Cicero The reason whereof is this because the things which are called sacred aâ—…e not indeed exempted from human uses but are publick and they are named sacred from the end to which they are appointed A sign of this which I say is that when any people yield themselves to another people or King then also they yield those things which are call'd divine as appears by the formula which we have cited afore out of Livy and therefore Ulpian saith publick Right consisteth also in sacred things Pausanias saith It was a custom common to Greeks and Barbarians that sacred things should be in their power that had taken Cities And the same Author notes that the consecrated Gifts were wont to be taken by the Conquerours and Cicero calls it the Law of War So Livy saith the ornaments of the Temples which Marcellus brought from Syracuse to Rome were gotten by the Law of War And Cato in his Oration in Salust relating what things are wont to happen to the conquered puts among them the spoiling of Temples Notwithstanding this is true if any divine power be believ'd to be in any Image to violate that is high impiety in them that agree in such perswasion and in this sense of impiety or of the Law of Nations broken are they sometimes accused who have committed such things viz. on supposition of such perswasion 'T is otherwise if the enemies are of another opinion as the Jews were not only permitted but commanded to abolish the Idols of the Nations for that they are forbidden to take them to themselves is upon this ground that the Hebrews might the more detest the superstitions of the Heathens being admonisht of their impurity by the interdict of a touch not as if the sacred things of Aliens were spared as Josephus expounds it in favour of the Romans no doubt as also in the exposition of another precept of not naming the Gods of the Nations which he so explains as if they were forbidden to speak against them when in truth the Law sufferd them not to mention them for honours sake or without abomination For the Hebrews knew by the infallible Word of God that in those Images neither dwelt the Spirit of God nor good Angels nor the vertue of Stars as the deluded Nations thought but wicked Devils enemies of Mankind so that Tacitus rightly said in describing the Jewish Institutions All things are there profane which with us are sacred No wonder then if we read more than once that Temples of profane worship were burnt by the Maccabees And Xerxes too when he destroyed the images of the Grecians did nothing against the Law of Nations though the Greek writers much exaggerate the fact to bring it into hatred For the Persians believed not any Deities to be in Images but that the Sun was God and the Fire some portion of him By the Hebrew Law as the forecited Tacitus rightly All were kept from entring into the Temple beside the Priests But Pompey as he saith entred the Temple by the right of victory or as Augustin not with the devotion of a suppliant but by the right of a Conquerour Well did he that he spared the Temple and the Things of the Temple though as Cicero plainly for shame and fear of obuectators not for Religion he did ill that he entred as in contempt of the true God wherewith also the Prophets do upbraid the Chaldaeans for which cause too some think it came to pass by the singular providence of God that the same Pompey was slain even in the view of Judaa at Cassium a Promontory of Egypt Howbeit if you look upon the Romans opinion Nothing was therein done contrary to the Law of Nations So Josephus relates how the same Temple was given up to destruction by Titus and addeth It was done by the Law of War What we have said of sacred things ought to be understood also of religious For these too are not in the possession of the dead but of the living whether a people or family Wherefore as sacred places taken by the enemies so religious likewise cease to be such as Pomponius hath written in the place afore and Paulus the Lawyer The Sepulchers of the enemies are not religious to us and therefore the stones taken thence we may convert into any use Which yet is so to be understood that the bodies of the dead be not treated ill because that is against the right of buriall which was introduced by the Law of Nations as we have demonstrated above XXXVI About acquisition of things taken in war What is the Law of Nature what of Nations BEside the impunity of some acts against men of which we have spoken there is also another effect in solemn War properly arising out of the Law of Nations And truly by the Law of Nature in a just War those things are acquir'd to us which either are equal to that which being due unto us we cannot otherwise obtain or also which do infer damage to the guilty part within fit measure of punishment as hath been said above By this right Abraham of the spoyles he had taken from the five Kings gave the Tithe to God as the Divine Writer to the Hebrews explains the History extant in Genesis After the same manner the Greeks too the Carthaginians and Romans consecrated the Tenth of the spoyle to their Gods as to Apollo Hercules Jupiter Feretrius And Jacob bequeathing a Legacy to Joseph above his brethren saith Moreover I give to thee one portion above thy brethren which I took out of the hand of the Amerite with my sword and with my bow In which place I took seemeth by a Prophetick way of speaking to mean I will certainly take and here is attributed to Jacob that which his posterity called by his name should do afterward as if the person of the progenitor and his children were the same For this is righter than with the Hebrews to draw these words to that spoyle of the Sichemites which was made before by the sons of Jacob which being joyned with perfidiousness was condemned by the piety of Jacob as we may see in the Story Now that the right of taking spoyle was approved of God within those natural bounds which I have mentiond is manifest also in other places God in his Law speaking of a City conquerd after the refusal of peace saith thus All the spoil thereof shalt thou take unto thy self and thou shalt eat the spoil of thine enemies which the Lord thy God hath given thee The Reubenites Gadites and part of the Manassites are said to have conquerd the Ituraeans and their neighbours
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
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
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
obstinate resistance But that these things are not sufficient to justify slaughter he will easily conceive who remembreth what we have set down a fore about the just causes of killing From Captives and those that yield or desire to yield there is no danger that therefore they may be justly killed there must be some antecedent Crime and that such a one as an equal judge would think worthy of death And so we see sometimes great severity shewed to Captives and those that have yielded or their yielding on condition of life not accepted if after they were convinced of the injustice of the War they had nevertheless persisted in arms if they had blotted their enemies name with unsufferable disgraces if they had violated their faith or any right of Nations as of Embassadors if they were fugitives But Nature admits not talion except against the same persons that have offended nor doth it suffice that the enemies are by a fiction conceived to be as it were one body as may be understood by what is said above of the Communication of punishments Wâ—… read in Aristides Is it not absurd to imitate what you do condemn Plutarch for this accuseth the Syracusians that they slew the wives and children of Hicetas only for this reason because Hicetas had slain the wife sister and son of Dion Moreover the benefit which is hoped from terror for the future perteins not to the giving of a right to kill but if there is a right it may be among the causes for which that right is not remitted And For a more obstmate affection to ones own side if the cause maintained is not at all dishonourable that deserves not punishment as the Neapolitans discourse in Procopius or if there is any punishment thereof it ought not amount to death for an equal Judge would not so determine Alexander at a certain town when he had commanded all the youth to be slain because they made so sharp resistence seemed to the Indians to wage war after the manner of Robbers and the King fearing such a blemish of his Name began to use his victory more mildly It was better done by the same King to spare the Milesians because he saw they were gallant men and faithful to their own party which are the words of Arrian Phyto Governor of Regin when for defending the town so stoutly he was by command of Dionysius drawn to torture and death cryed out He was punisht because he would not break his trust and betray the place but God would suddenly revenge it Diodorus Siculus styleth these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unlawfull punishments I am very much pleas'd with that vote in Lucan May he be Conqueror who means to spare His Fellow-Citizens that adverse are Provided by the Name of Fellow-Citizens we understand not those of this or that Nation but of that common Countrey of all Mankind Least of all is Slaughter justifyed by grief and anger for some overthrow receiv'd as we read Achilles Aeneas Alexander sacrificed to their friends the blood of Captives and such as yielded Wherfore Homer justly saith of Achilles on this occasion He resolved on a wicked act XLVIII The Multitude spared Hostages spared Needless fights to be avoided MOreover where offenses are of that nature that they may seem worthy of death it will be a point of Mercy because of the Multitude of them to remit somewhat of extreme right Of which clemency we have God himself for Author who was pleased that Peace should be offerd to the Cananites and their neighboring Nations offenders in the highest degree such a Peace as allowed them life on condition of being tributaries Pertinent here is that of Seneca The Severity of a General shews it self against particulars but pardon is necessary where the whole Army is revolting What takes away Anger from a wise man The Multitude of Transgressors And that of Lucan Plagues Famine Ruines Storm or Fights have sent So many to their grave not Punishment Casting of Lots was ordained saith Cicero that too many might not be punished Sallust to Cesar No man exhorteth you to cruel punishments or bitter sentences whereby a City is rather wasted than reformed As to Hostages what is to be determined out of the Law of Nature may be seen above Of old when it was commonly believed that every one had as much power over his own life as over other things within his propriety and that that power by consent either tacit or express was devolved from every particular person upon the Commonwealth it is the less to be admir'd if we read Hostages though in themselves innoxious were put to death for the offense of the Commonwealth either as by their own peculiar or as by the publick consent wherein their own was included also But after that the more true and perfect Wisedom hath taught us that Dominion over life is excepted by God it follows that by consent alone no man can give to any power and right over the life either of himself or of his Citizen And therefore it seem'd atrocity to Narses a good General to take punishment of innoxious Hostages as Agathias tells us and other Authors say the like of others even by Scipio's example who said he would not shew his displeasure upon harmless Hostages but upon those that had revolted and that he would not take revenge of the unarmed but of the armed enemy Now that among the later Lawyers some of great name say such agreements are of force if they be confirm'd by custom I admit it if by right they mean impunity only which in this argument often comes under that appellation But if they suppose them free from sin who by agâ—…eement alone take away any ones life I fear they are deceiv'd themselves and by their perâ—…lous authority deceive others Clearly if he that comes an Hostage be or were before in the number of grievous dclinquents or if afterward he hath broke his faith given by him in a great matter posbly the punishment may be free from injury But Clodia who came not an Hostage of her own accord but by Order of the City when she had passed 〈◊〉 and escaped was not only safe but praised for her Vertue by the Etruscian King as Livy speaks in this History We must here add this all combates which are of no use to obtem right or end the War but have meer ostentation of strength proposed to them are contrary both to the office of a Christian man and to Humanity it self Therefore Rulers ought seriously to forbid them being to render in account for blood unprofitably shed to Him in whose stead they bear the sword Surely Sallust also hath commended Generals that bought their victories at the least expence of blood And Tacitut saith of the Catti a people of approved valour Their excursions and 〈◊〉 fights were seldom XLIX A Temperament about wast and
Country no other than a hostage and so much the better as it is more fertile wherefore also spare it as much as is possible lest despair make them more hard to be conquerd The same was the Counsil of Agesilaus when against the opinion of the Achaians he left the Acarnans a free seeding time saying the more they sowed the more desirous would they be of Peace The Satyrist to our purpose After such harms And losses suffer'd what remains but Arms Livy speaking of the City taken by the Galls It pleased saith he the Chief of the Galls that all the houses should not be fired that the remainder of the City might be a means to soften and bow the heart of the enemy Add that this Moderation while the war continues maketh shew of great confidence of the victory and that clemency is apt of it self to move and win the mind Annibal in Livy makes no spoil in the fields of Tarentum It appeared saith he 't was not done out of the modesty either of the Soldiers or of the Captain but to gain the affections of the Tarentines For like cause Augustus Câ—…sar in Pannonta absteind from rapine Dion tells us why He had hope by 〈◊〉 means to win them without violence To motheus by that care of his aforemâ—…tion'd beside other things armed at the good will of his Enemies as Polybius observeth Of Quintius and the Romans with him Plutarch when he had related what we have said of him above addeth They had the fruit of this Moderation a little after For they were no sooner come into Thessaly but the Cities yielded to him and the Greeks inhabiting between Thermopilae wished for him with ardent desires but the Achaians renouncing the friendship of Philip associated themselves to the Romans against him Of the City of the Lingones which in the war waged against Civilis the Batavian and his fellows by the conduct of Cerealis under the Authority of Domitian had escaped a feared spoil Frontinus saith Because beyond expectation it was inviolate and lost nothing being reduced to obedience it gave him seventy thousand armed men Contrary Counsels have also contrary events Livy gives us an example in Annibal His mind Precipitous to avarice and cruelty carryed him to the spoil of what he could not keep himself that the enemy might not enjoy it That policy was dishonorable and disprofitable to him both at the beginning and the end For not only the minds of them that sufferd unworthy things were alienated from him but of others too for the example reached â—…nto more than the calamity did Surely it is most true which is noted by some Divines that it is the office both of the Highest powers and of Captains who will be accounted Christians both in the judgment of God and men to supersede the violent direptions and spoiling of Cities and all like violences as those that cannot pass without the calamity of many Innocent persons and oft-times little avail to the main of the War So that Christian Goodness almost always â—…ven Justice it self for the most pare abhors them Greater certainly is the bond of Christians to one another than that of the Grecians was by whose wars that no City of Greece should be destroy'd was provided by a Decree of the Amphictyons And the Antients deliver that Alexander of Macedonia never did repent him more of any thing he had done than of the overthow and ruine of Thebes LII A Temperament about things taken NEither ought the Capture of hostile Goods in a just War be judged without sin or free from the charge of restitution For if you look upon what is done rightly it is not lawful to take or have farther than the enemy is indebted except that also for necessary security things may be detein'd but to be restored in themselves or the price after the hazard is past Now the Goods of subjects may be taken not only for the obteining of the primary debt whence the war began but of a debt arising after it according to what we said in the beginning of this part And so is it to be understood which some Divines write Things taken in war are not equalled with the Principal debt that is there must be also satisfaction made according to a true Judgment for that damage that was done in the war it self So in the disceptation with Antiochus the Romans as Livy relates judged it equal that the King by whose fault the war was raised should pay all the cost T is in Justin To bear the charge of the war by a just Law In Thucydides the Samians are condemned to pay the expences of War And elswhere often Now that which is justly imposed upon the Conquered is also by a war extorted from them justly But yet we must know as we have mention'd afore the rules of Charity are of larger compass than the rules of Law He that has a flourishing estate will be guilty if he thrust his needy debtor out of all he hath that himself may be paid to the utmost farthing and much more if that same debtor came into that debt through his own goodness as if he hath been Surety for his friend and himself hath converted none of the mony to his own use For as Quintilian's Father saith a Sureties danger is to commiserated And yet so hard a Creditor doth nothing against right strictly taken Wherefore Humanity requires that to those who are without fault of the war and who are bound no otherwise than as sureties such things be left as we can want more easily than they especially if it be evident that they shall not recover from their Commonwealth what they have in that manner lost Hither perteins that saying of Cyrus to his Soldiers after he had taken Babylon It will not be unjust for you to possess what you have gotten but it will be your Humanity to leave something to the enemyes This is also to be noted seeing this right over the goods of innocent Subjects is introduced for relief so long as there is hope we shall get our own easily enough from the principal debtors or from them who by not doing right do of their own accord make themselves debtors that while to come unto them who are without Fault though it be granted not repugnant to strict right doth depart from the rule of humanity Examples of this humanity are frequent in history especially in the Roman as when Lands were given to the Conquered on condition they should come into the Commonwealth or when a small part of the Lands for honor sake was left to the old Possessor So Livy saith the Veientes were mulcted a part of their lands by Romulus So Alexander the Macedonian gave the Uxians the Lands they had been masters of for Tribute So you shal often read of Cities deliverd up and not spoiled and above we have said not
the persons only but the goods of the Inhabitants are commendably and according to the pious prescript of the Canons spared at least under tribute and under the like tribute is wont also to be granted unto wares immunity from war LIII A Temperament about Captives WHere Captivity of men and Servitude is in use if we respect internal justice 't is to be limited first after the likeness of things viz. that such acquist may be lawful so far as the quantitity of the debt either primary or secondary doth admit except perhaps in men themselves be some peculiar fault which equity will bear to be punisht with the loss of liberty Hitherto then and no farther He that wageth a just war hath a right over his enemies subjects being taken and doth validly transfer it upon others But it will be the part of equity and goodness here also to apply those differences which were noted above when we spake of killing Demosthenes in his Epistle for the Children of Lycurgus praiseth Philip of Macedon that he haâ—… not made all that had been among his enemies to be servants For saith he he did not think it meet to deal with 〈◊〉 alike but judged of every one according to his merit But first we must note the right which springs as 't were from suretyship for a City is not so large as that which springs from a fault against them who are made servants by way of punishment Whence a Spartan said He was a Captive not a Servant For if we look rightly into the matter this general right over Captives in a just war is like to that right which Masters have over them who being compeld by poverty have sold themselves into servitude except that their calamity is the more to be pityed who come not into that condition by any special fact of their own but by the fault of Governours 'T is a most sad thing saith Isocrates to be made a prisoner of War This servitude then is a perpetual obligation to work for maintenance likewise perpetual Chrysippus his definition is very fit for this kind of servants A servant is a perpetual mercenary And him who hath sold himself being compeld by poverty the Hebrew Law plainly compares to a mercenary and in his redemption it will have his work so profit him as fruits received of a field sold should profac the old possessor Much difference therfore there is 'twixt what is done impunely against a servant by the Law of Nations and what natural reason suffers to be done That of Philemon tendeth to this He that is born a man although He serve is stil a man I trow Seneca They are servants yea Men they are servants yea our Compauions they are servants yea our friends they are servants yea our fellow-servants Which also you may read in Macrobius agreeing in sense with that of S. Paul Masters give unto your servants that which is just and equal knowing that ye also have a Master in Heaven And in another place he would have Masters forbear threatning upon the same argument knowing that their Master also is in heaven who regardeth not such differences of qualities In the Constitutions ascribed to Clemens Romanus we read Thou shalt not be imperious over thy man-servant or thy maid-servant in bitterness of mind Clemens Alexandrinus would have us use our servants as our other selves seeing they are men as well as we following the sentence of the Hebrew wise-man If thou hast a servant use him as a brother for he is such a one as thy self The right therefore which is called of life and death over a servant gives the Master a domestick Jurisdiction but such as must be exercised with the same religious care as the publick is exercised This was Seneca's meaning when he said In a bondman is to be considered not how much may be inflicted on him impunely but how much equity permits which commands us to spare even Caprives and those whom â—…e have bought with money And again What matter is it under what command one is if it be the highest Where he compares a subject to a servant and saith under a divers title the same is lawful over them which in respect of taking away the life and of what is pertaining to it is most true Our Ancestors saith the same Seneca judged our House to be a little Commonwealth and Pliny The house is unto servants a certain Common-wealth and as it were a City Cato Censorius as Plutarch relates if any servant seemed to have committed a capital crime did not punish him till after he was condemned by the judgment also of his fellow-servants Wherewith may be compar'd the words of Job 31. 13. c. About the lesser punishments too namely stripes and beating of servants equity yea and clemency is to be used Thou shalt not oppress him thou shalt not rule hardly over him saith the Divine Law of an Hebrew servant which the force of neighbourhood being now enlarged ought 〈◊〉 be extended to all servants Deut. 15. 17 45 53. Upon which place Philo Servants are indeed inferior in fortune but in â—…ature equal to their Masters now to the Divine Law that is the rule of justice â—…ot which agrees to fortune but to nature Therefore it becomes not Masters to use their power over servants frowardly nor to make it matter for their pride and insolence and cruelty For these are signes of an ill disposed and tyrannical mind Seneca what is more foolish than to be furious against men and yet use dogs and horses gently Hence in the Hebrew Law to a servant man or maid not for an eye only but a tooth injuriously struck out liberty was due Moreover work is to be exacted of them moderately and a human respect is to be had to the health of servants Which very thing beside other the Hebrew Law provides for in the institution of the Sabbath viz. that some breathing space might be allowed Labourers Seneca observes in the word Paterfamilias the humanity of the antients Do you not see how our Elders have taken off all envy from Masters all contumely from servants They named the Master the Father of the family the servant familiars The like piety hath Servius noted in they word pueri Children by which they signified servants For thâ—… work as we have said maintenance iâ—… due to servants Cato Provide well for the family cloaths against cold food agâ—… hunger There is somewhat saith Sâ—…aeca which a Master ought to afford his servant as food and apparoll The cruelty of the Sicilians who famished the Athenian Captives is condemn'd by the historians Farther Seneca in the same place proves a servant is free in some respect and has wherewith to do a benefit if he hath done what exceeds the measure of servile duty what is done not upon command but voluntarily where service
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.
qua sermo est †Discas hoc ex Jos. lib. 3. de bello Jud. Luc. 2. 1. Arist. 7. Polit. 4. Silv. verbo Bellum p. 1. n. 21. Covar loco citato n. 9. †Exemplum sume in Hispania de qua vide Gomerium in sect fuerat num 5. de actioniâ—… Vict. de Ind. rel 21. seq Ayala l. 1. n. 29. 1 Cor. 5. 12. Jo. 18. 36. Matth. 26. 53. Vid. Petr. Dam. l. 4. epist. 9. Bern. ep 221. * Abulensis on Matth. 9. well explains this †Hilarius Arelatensis For Christ came not to invade anothers glory but to impart his own not to take an earthly Kingdom but to bestow an heavenly 1. Tim. 3. 2. †Act. Apost hom 3. epist. ad Tit. hom 1. ep 1. ad Thess. hom 4. †De sacerdot lib. 2. Christians are not permited to chastise by force the faults of the guilty Secular Judges awing evil-doers by theâ—… Laws exercise power over them and constrain them to obedâ—…ence even against their will But we must endeavour to refâ—… men not by compulsion but perswasion Neither do the Laws 〈◊〉 low us power of coercion and if they did how should we use 〈◊〉 seeing God doth not crown those that abstein from evil necessâ—…ly but willingly Wherefore we must take pains to persâ—… sick soules to yield them selves of their own accord to be â—…ured 〈◊〉 us A little after He that erreth from the faith cannot be drawn unto it by force nor compeld by fear And upon Ephes. 4. We are appointed to teach men not to command not to exercise a coercive power We are like Counselers who advise the hearer not force him but leave him his free choice Ambros. l. 2. de Cain Abel 4. Sacerdos quidem officium suum exhibet at nullius potestatis jura exercet Citatur c. verbum de poenit dist 1. * Ad reges enim non ad Ecclesiam pertinet judicare de feudis c. novit de judiciis de seudis de possessionibus c. causam quae inter qui filii sint legitime Reges enim superiorem in temporalibus minime recognoscunt c. per venerabilem eod tit Christus voluit ut Christiani Impp. pro vita aeterna pontificib indigerent Pontifices pro cursu temporalium rerum Imperialibus legibus uterentur quatenus spiritalis actio à carnalibus distaret incursibus Deo mâ—…litans minime secularibus negotiâ—… se implicaret C. quoniam distinct 10. c. †Hieron in epitaph Nepotiani Minus licet Episcopo quam Regi Ille enim nolentibus praeast hic volentibus Ille terrori subjicit hic serviâ—…utl donatur Cassiod lib. 11. in epist. ad Episcopos Episcopus doceat ne Judex possit invenire quod puniat Fredericus primus apud Guntherum Ligurino de pontifice Ecclesiam regat ille suam divinaque jura Temperet imperium nobis fascesque relinquat Suennonem Daniae regem excommunicatum cum Roschildensis Episcopus Wilhelmus ab ingressu Ecclesiae oppositu baculi pastoralis arceret regii capulis admoverent manum fecit quad Episcopicrat cervicem porrexit †Vide de Theodoro quodam Gratiani tempore Zozimum Ammianum Marcellinum de Joanne Capadoce Procopium Persicorum 2. Leunclavium Hist. Turc l. 18. * For the Prophetical books are shut and sealed up til the appointed time so that they cannot be understood Dan. 12. 4 8 9. Hierom 〈◊〉 Daniel If a Prophet heard and did not understand what 〈◊〉 they do who by presumption of mind interpretet a book sei'd and very obscure until the â—…ime of consummation Procopius 〈◊〉 the 2. of his Gotthicks I think it impossible for man to find 〈◊〉 the sense of the Sibylline Oracles before they are fulfilled Gâ—… ras in his 5. book As other predictions are most hard to be interpreted because they have many perplexicies and aomit servâ—… ral explications so also this Oracle deceived all even the Emperor himself as long as he liv'd But after his death the Orâ—… explaned it self Take heed to your selves yee over-bold Dvines Take liced of overbold divines yee Statesmen Word is that place to be seen in Thuanus lib. 79. in An. 1583. concerning Jacobus Brocardus Vict. de jure belli n. 2. * Which vice especially flatters us with a shew of vertue but S. Augustin well adviseth saying It is better undergo the shame of any cowardise than seek the glory of such arms Lib. 3. de Civit. Dei c. 14. * Rupere soedus impius lucri furor Et ira praeceps Sen. Hippol †Contra Faust. l. 22. c. 74. Tho. 2. 2. 74. 66. 8. 1 Eth. N c. 1. * In his mutatio sil 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in aliis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 †Vide Chrysostomum ad 4. eph 2. Morali 3. Nâ—…com * Rom. 14. 23. To the same purpose are these words in the same ch Let every one be fully perswaded in his own mind And Happy is he who condemneth not himself in that which he alloweth Ambrose saith T is sin to do otherwise than ones judgment leadeth and so Augustin both cited by Gratian c. 28. q. 1. That of Plutarch in his Timolcon is of like sense It is requir'd saith he not only that the thing done be honest and just but that it be done with a 〈◊〉 per swasion and with judgment De Offic. lib. 1. * Plin. lib. 1â—… epist 19 Quod dubitas non feceris Covar tom 1. de Matrim 〈◊〉 2. c. 7. sect 2. n. 9. Nicom 2. c. 9. Cic. Offic. 3. De malis minima * Augustin in his third de Ordine saith There are two ways which lead us through the dark when things are obscure the one of reason the other of authority †Minutius in Livy lib. 22. borrowed this of Hesiod saying He is the first man who can give Counsil and shew what is good next is he that obeys the good Counsil of another He that can do neither is a man of an extreme bad temper Cicero hath words of the same meaning in his Oration for A Cluentius Victor de Ind. rel 1. n. 12. de jure bell 21. 24. Arist. 1. Top. c. 1. Vasquez disput 62. c. 3. n. 10. * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * In istam partem potius peccato tamen Ammianus Lenitas acerbitati anteponenda lib. 28. * Prob. sect 29. ubi pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vulgo legitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 contra Anti-phon Si eâ—…randum est sine jure absolvere quam per injuriam condemnare est sanctius Nam in illo error est in damnatione insontis facinus †Laudator Silio Ital co Fabius Cauta speculator mente futuri Nec laetus dubiis parvisque sacessare Martem * De Offic. 1. Victor de jure bel n. 28. Terentius Omnia prius experiri quam armis sapientem decet Qui scis an quae subeam sine vi faciat Euripides Verbi id impetrabo sui nequeo manu Dionys. Halicarn in
work is not done without injury of the Gods The walls of Cities and Temples of the Gods parâ—…ake in the sâ—…me ruine the Citizens and Priests equally slaughtered nor is the rapine of sacred riches and profane unlike So many therefore are the sacrileges of the Romans as their trophies So many are their triumphs over Gods as Nations c. †Poâ—… l. cum loca D. de religiosis * Cic. Verrina 4. * Marsil Pataâ—… in defensore pacis c. 5. p. 2. Nicol. Boerius Decis 69. num 1. Bâ—…ssius in crim de foâ—…o competente num 101. Cothman cons. 100. num 30. * Part. 1. 〈◊〉 42. pag. 88. Cui convenit illud in Amphiâ—…uone Plauti urbem agrum aras socos seque 〈◊〉 dedevent Deinde Dedeâ—… se divina humanaque omniâ—… †In the necessity of times sacred things were converted to uses of war by Pericles under promise of making restitution Augustus borrowed money out of the Treasury of Temples Appian Civil 5. Heraclius in extreme need turned the Church-plate into coyn but afterward restored the price as Theophanes relates See the Oration of Laurent in Bemb l. 6. †Pausan. Areadicis * Vide Cromerum lib. 17. Procop Persic 2. Deut. 7. 5. Antiquae hist. 4. 〈◊〉 libro contra Ap. altero Tacit. hist. 5. 1. Macc. 5. 10. Ascon pad in Verr. 3. †Diogenes Laertius in his beginning saith Images are condemned by the Magi. De Civil Deil. 18. cap. 45. Pro Flacea Dan. 5. 〈◊〉 * Bell. Iud. l. 6. c. 24. 34. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * L. Sepulchra D. de sepulc violato * Part. a. n. 73. Cap. 6. * And food to his servants and part of the spoyl to his companions vide Josephum in hac historia Hebr. 7. 4. Gea 14. Gen. 48. 22. * The Chaldee interprets it done by Prayers to God who by a singular favour preserved Sichem for Jacob and his posterlty Gen. 34. 30. 49. 6. Deut. 20. 14. 1. Par. 5. 20 21 22. 2. Par. 14. 13. Jos. 22. 8. 〈◊〉 Sam. 30. 26. De benef 3. 37. Philo de diris Xen. 5. de instit Cyri. Sophist Com. 4. 1. Polit. †Apud Plutarch in vita Alex. Ea quae victi fuerant esse appellari debent Victoris Ibidem Vincentes etiam ca quae hostium sunt sibi acquirere Diodorus Siculus excerptis Peiresian n. 467. Quae armis quaesita essent parta belli jure non diâ—…tenda Etiam Clemens Alexand. ait res hostium rapi acquiri belli jure Strom. 1. Liv. lib. 39. L. naturalem §. ult D. de acq rerum dom tit de rer dio Hist. Gr. 3. L. Pomponius D. de acq rer dom L. postlim ¶ postliminio D. de capt l. ult Ib. l. postlim ¶ in bello d. tit Inst. de rer divis ¶ item ea Inst. d. loco l. naturalem ¶ item de acq rer dom Consulatn maris c. 283. 287. Constit. Gallicae lib. 20. tit 13. art 24. Corn. de Lap. in Gen. c. 14. Molin disp 118. L. quod meo D. de acq vel amit poss * By land also the same is observed as you may learn out of Thuanus l. 113. in an 1595. Vid. Alb. Gent. Hispan Adv. l. 3. * Territorium à terrendis hostibus Sic. Flac. à terendo Var. à terra Frontin à terrendi â—…ure Pomp. Xea lib. de Vectigal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 †De malè obita legatione * Consul maris c. 273. †Neither are the ships of friends to be made a prey because of the enemies goods unless it be by consent of the Masters of the ship L. Cotem D. de Publicanis Rodericus Zuarius li. de usu maris Consil. 2. 〈◊〉 6. And so I think the Laws of France are to be understood which subject ships and goods to the prey for one another Otherwise the things alone become a prey Meurs Danic lib. 2. So in the War of the Venetians with the Genuans the Greek ships were seaâ—…ched and the enemies hidden there drawn forth Gregoras lib. 9. vide Crantzium Saxon. 2. Albericum Gentilem Advâ—… Hispan lib. 20. Jud. 11. 23 24 27. 1 Sam. 30. 20. †So Resin King of Syria gave a City which was the ldumaeans not to them but to the Syrians to be inhabited as the Masorets read 2 Reg. 16. 6. Halicarnass l. 6. De Veiis idem in Romulo narrat Plutarchus Halic l. 8. Lib. 41. Mithrid Civil 1 Lib. 40. Cap. 7. L. Libertus §. 1. D. de statu hom L. postlim ¶ 1. D. de captiv L. in bello D. de captivis * Philo Multi viri boni variis casibus nativam libertatem amiserunt Pueros bello captos abducere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocat Oppian †L. servorum ¶ 1. D. de statu hominum 1 Cor. 5. L. X. D. de his qui sui sunt juris Instit. de his qui sui Donat. ad Ter. And. A. 1. S. 1. Quid non justum domino in servum Instit. per quas person ¶ item vob L. Pupillus D. de V. S. vide Servium ad 5. Aen. ubi originem vocis saltem explicat L. Lex Naturae D. de statu hom Caius JC. lib. 2. rerum quotidian Item quae ex hostib capiuneur jure gentium statiâ—… capientium flunt adeo quidem ut liberi homines in servitutem deducantur Deut. 23. 15. Vide praeceptorum vetantium 180. †The Essenes also from whom the first Chrâ—…stians took beginning See Josephus Bart. in l. hostes D. de capt Covaâ—… in c. peccatum p. 2. 〈◊〉 11. n. 6. †Greporas lib. 4. Mos hic est ab antiquo deductus ad posteros propter fidei consortium ut res quidem in praedam vertere liceat homines autem nec captivos facere nec interficere exâ—…ra praeliâ—… tempus * Plato 5. de Repub. * Chalcocondyl lib. 3. Leunclav lib. 3 17. Busbequius epist. exoticatum 3. Bart. in l. nam serv. D. de Reg. gestis Bâ—…ër decis 178. Const. Reg. Hisp. lib. 8. tit 26. pag. 2. Cap. 8. Apologet. †Minio in orat ad Romanos apud Liv. l. 35. Cur Syracusas aâ—…que in alias Siciliae Graecas urbes Praetorem quotannis cum Impâ—…rio virgis securibus 〈◊〉 Nihil a'iud prosecto dicatis quam armis super at is vos iis has leges imposuisse * De De bell Gall. * Lib. 1. †Alexander after the Battell at Gaugamel was saluted King of Asia The Romans said what Syphax had was theirs by the Law of War Ap pian But when the Hunni said the Gepidae were theirs because they had taken their King the Romans denyed that because the Gepidae had rather a Prince than a King nor were they in his Patrimony Menander Protector †Part. 1. n. 47. Lib. 7. de rep * Alexandrides 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tacitus non dominationem servos sed rectorem cives cogitaret Xenophon saith of Agesilaus that when
The like goodness of Tiberius a Christian Emperor toward the Persians is commended by Menander Protector of Sisebutus by Mariana and of Sanctius King of Castile Lib. 11. 2. Cyropaed Vita Dem. Strab. l. 7. * Diod. Sic. in excerpt Cap. 15. Vict. de jure belli n. 38. 59. Jugurth Derepub l. 7. c. 14. 15. Nic. 10. c. 7. De ossic 1. Tho. 1. 2. q. 40. art 1. ad 3. * Alexand. Imp. Artaxerxi Persae Manendum cuique intra suos sines nibil novando neque debere quenquam incerta spe sublatuns bella incipere sed suo esse contâ—…ntum De Ciâ—…t Dei liâ—… 4. 15. †Cyril in his 5. against Julian commends the Hebrew Kings for this that they were content with their own bounds Am. 1. 13. Lib. 2. de Ira. cap. 34. Annal. 5. L. in orbe D. de flat hom L. Roma D. ad munic Claudian Hujus pâ—…ficis debonius moribus omnes Quod câ—…ncti gens una sumus * Seneca Troad Hostis parvi 〈◊〉 lacry 〈◊〉 Suscipe diâ—…u rector hâ—…enas Patrioque sede cel sus 〈◊〉 Sed sceptra fide meliore cene †Ael l 4. 5. †Herod lib. 7. * Pipiuus to A. stolphus Longobard * De clem 1. 21. The whole place is worth reading where he also calleth it a triumph after victory Pompey left Tigranes a part of his Kingdom Eutrop. l. 6. Liv. lib. 32. * Vid. Polybium exc Legat. n. 6. Mithridat Apud Tacitum est Zo sini victo nihil ereplum Annal. 12. * Yet was that remitted afterwards Plut. Flaminio Lib. 1. ad Q. fr. epist. 1. Hist. 4. * Vide de Persis Agathiam lib. 4. Plutarch qu. Rom. 15. * Livius facilius parari singula quam teuevi universa Augusti dictum apud Plutarchum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Augustus is prais'd in Dion that he was not ambitious of more but to keep whaâ—… he had Thuc. 1. Isoc Pan. Demosth. orat de cheâ—…s Annal. 6. Hist. 2. †Eidem Antiochus inservientium regum ditissimus Strabo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lucanus Atque omnis Latio quae servit purpura ferro Vid. Panegyr Mariâ—… dict †Such Kings were of old in Italy under the Empire of other Kings Serv. ad 10. Aen. So among the Turks Leuncl lib. 18. * Part. 1. * Philo in his Embasly to Caius saith Augustus had as much care to keep the Laws proper to every Natâ—…on as the Roman †Vid. ep 93. Plin. sâ—…q Tâ—…aj lib. 10. Cic. l. 6. ad Aâ—…tic epist. 5. 21. * Melius est ibi aliquem coli Deum quam nullum Severus So the Gotths in Procop. Gott 2. 〈◊〉 they forced none to their Religion Xenoph. Cyrop lib. 4. Vit. Agric. Liv. lib. 8. Liv. lib. 8. Diod. lib. 13. †Scythae Alexandro Inter Dominum servum nulla amicitia etiam in pace belli tamen jura servâ—… Curt. lib. 7. Salubri Taciti Sententia Bellorum egregii fines quoties ignoscendo â—…ransigitur In Caesatis Dictatoris epistola est Hac Nova sit ratio vincendi ut misericordia liberalitate nos muniaâ—… The Lacedemonians in Thucydides lib. 5. We are of opinion quarels are turned in firm concord thus not if one in revenge and taking advantage by his success impose upon others a necessity of sweating to unequal articles but if when he is able to do so he use as much equity now as valour before and compose matters with as much moderation as may be L. traditio D. de acq dom Lib. 5. de benef cap. 12. Liv. lib. 3. Polyb. hist. l. 3. Plut. Apoph App. Pun. Adde Valer. Max. l. 1. c. 1. n. 6. Verrina de signis Strabo l. 13. Gen. 14. 16. Gen. 14. 21. * Benè hoc notavit Jacchides ad Daniel 5. 17. Sulpitius de Abrahamo Reliqua his quibus erepta erant reddidit Ambros. lib. 1. de Patriarchis Ideo quoniam sibi mircedem ab homine non quaesivit à Deo accepit Non multum hinc distant facta Pittaci Timolcontis Pittacus Milyâ—…enaeus 〈◊〉 recuperatâ—… agriaâ—…midia pars conâ—…su omnium offerretur avertit animum ab eo inâ—…re deforme sudi-â—… virtutis gloriam magnitudine praedae minuere Val. Max. l. 〈◊〉 c. 5. n. 1. De Timoleonte Plutarch vid. †The Exiles of Saâ—…um after six years were restored by the Romans Antonius 〈◊〉 liberty those who were brought into servitude in the War of Cassius and restor'd their Goods to the Owners * Liv. l. 2. 〈◊〉 1. 72. Xenoph. Hist. Gr. 3. Liv. lib. 34. Ciecro Offiâ—… 2. * Quod secie rex Ferdinandus memorante Mariana l. 29. c. 14. Cap. 17. Part. 2. * The like testimony Plutarch gives to Tâ—…tus Q. Flaminius †And Plutarch saith when he heard of his Souldiers license he sâ—…a ed up 〈◊〉 words and punishâ—… every one that brake the Seal 9 2. * Cassiodor 5. 10. 2. 13 25. †Claudian Tanta quies tantusque metus servator honesti Te moderante suit nullis ut vinea surtis Aut seges erepta fraudaret messe colonum * Th's virtue is oft commended in Belisarius by Procopius his Companies and witness of his actions See to this purpose his excellent speech to his Souldiers near Sicily when he marched into Africk and the narration of his march through Africk Vandal 1. The like praise of the Almains in their expedition to the Holy Sepulcher see in Nicetas Manuele Comneuo Gregoras l. 9. commends the same in the Venetians †Plin. Hist. Nat. 26. 4. Cúrve Romani duces pâ—…imam semper in bellis commerciorum curam hâ—…buêre Cassiod 4. 13. Habeat quod emat ne cogatúr cogitare quod auferat Similia habet 5. 10 13. * L. 18. Vide Ammianum lib. 21. * Vop Aurel. * Xenoph. Expedit lib. 6. Luk. 3. 14. * Ambros. ad hunc Lucae locum Iccirco stipendia constituta militiae ne dum sumtus quaeritur praedo grassetur Sunt egregiae ad bane rem Constitutiones apud Greg. Turon lib. 2. 27. Frederici primilegom sic resert Guntherus Si quis pacificae plebis villasve domosve Vsserit ab rasis signabitur or a capillis Et pulsus castris post vulnera multarecedet †Sic Guicciard disserit lib. 16. * Lib. 4. c. 1. See Spartian of Niger's severity for a stoln Cock De Praet Vrb. Aegid Regius de act supera disp 31. dub 7. n. 95. * Exemplum nobile vide apud Parutam lib. 8. Lib. 1. Lib. 3. Gotth 1. * Demostâ—…enes Qui ea facit machinatur quibus ego capi possim etiamsi nec seriat nec jaculum emittat hostis mihi est * Liv. lib. 37. Plut. Bruto Liv. lib. 35. * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cap. 18. Offic. 1. Xenoph. Cyrop Plut. Quaest. Rom. 39. Marcello De ira c. 9. L. descrtorem D. de re milâ—…t Liv. l. 7. Manliana Imperia * Ita Avidius Cassius causam sententiae suae reddebat Eveniâ—…e potuisse ut essent insidiae Volcatius
States and Kings have it full what in part what with right of alienation what otherwise Last of all we had to speak of the duty of Subjects towards their Superiours The second Book expounds what are the Causes whence War may rise And there we speak of Community and Propriety Leagues Oaths Embassages Punishments c. The third Book having expounded what is lawfull in the time of War and distinguished what is done without fault from what is done without punishment ends with Arguments and Peace Now this Argument seemed the more worthy of our pains because as I have said no man hath handled the whole and they that have handled the parts have so handled them that they have left much for anothers Industry The old Philosophers have nothing extant in this kind neither the Greeks among whom Aristotle made a Book entituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nor They that gave their name to new Christianism which was much to be wished And the Books of the old Romans De jure Feciali have transmitted to us nothing of themselves but the Title I have seen also special Books De Jure Belli partly by Divines viz. Franciscus Victoria Henricus Gorichemus Wilhelmus Matthaei partly by Doctors of Law viz. Jannes Lupus Franciscus Arius Joannes de Lignano Martinus Laudensis But all these have said but very little of a most copious Argument and most of them so that without order they confounded things of Natural Law and of Divine and of the Law of Nations and of the Civil and of the Canon Law and mingled them all together What was most wanting to all these the light of Histories the most learned Faber in some Chapters of his Semestria but as it stood with the purpose of his work and alleging onely testimonies Balthazar Ayala more largely and bringing a heap of examples to some definitions have attempted to supply Albericus Gentilis yet more largely by whose diligence as I know others may and profess my self to have been helped so what may be wished in him in the kind of teaching in order in distinguishing the questions and several sorts of Law I leave to the Readers judgement This onely I will say He is wont in determining Controversies to follow either a few examples not alwaies to be approv'd or also the authority of the new Lawyers in his Answers Many whereof are framed in favour of those that consult them not to the Nature of Right and Good The Causes whence War may be called just or unjust Ayala hath not touched Gentilis hath as it pleased him delineated some general heads and hath not so much as touched many places of both noble and frequent Controversies We have endeavour'd to speak of all shewing also the fountains whence it may be easy to define what we have here omitted It remains now that I declare briefly with what aids and with what care I set upon this business First my Care hath been to refer the proofs of things pertaining to the Law of Nature unto Notions so certain that no man without offering violence to himself may be able to deny them For the principles of that Law if you mark them well are open and evident of themselves even after the manner of things perceived by our outward senses which if the organs be well formed and other necessaries be present do not deceive Therefore Euripides in his Phaenissae makes Polynice whose cause he will have to be manifestly just speak thus T is plain and grounded on good right To th' rude and learned clear as light And presently he adds the judgement of the Chorus which consisteth of Women and those Barbarians in approbation of her speech I have also used to the proof of this Law the testimonies of Philosophers Historians Poets and lastly Oratours not that we must give credit to them without difference for they are wont to serve their Sect Argument Cause but that where many in divers times and places affirm the same thing for certain it ought to be referr'd to an universal Cause which in our questions can be no other than either right Illation proceeding from the principles of Nature or some Common Consent That shews the Law of Nature This the Law of Nations The Difference of which Laws is to be conceived not from the testimonies themselves for Writers do commonly use the words Law of Nature and of Nations promiscuously but from the quality of the Matter For that which cannot by sure consequence be deduced out of sure principles and yet appears every where observed must needs have its rise from free will and consent These two therefore I have still been very carefull to discern one from the other and both from the Civil Law Yea in the Law of Nations also I have distinguisht what is truly and in every respect Right and what onely brings forth a certain external effect like unto that Primitive Right viz. that it may not be resisted or also that every where for some Commodities sake or the avoyding of great incommodities it must be defended Which observation how necessary 't is to many things will appear in the contexture of the Work it self Among Philosophers Aristotle deservedly obtains the principal place whether you consider the order of his discoursing or the acuteness of his distinguishing or the weight of his Reasons Only I wish that Principality had not for some Ages gone into Tyrannie so that Truth to which Aristotle was 〈◊〉 faithfull servant is opprest by nothing more than by the name of Aristotle For my part both here and elswhere I imitate the liberty of the Antient Christians who were sworn to no Philosophers sect not that they did assent to them who said Nothing could be known than which nothing is more foolish but that they judged no sect had seen all Truth and not any but had some Wherefore to gather up Truth dispersed among them all and diffused into Sects into a Body This they thought was indeed to deliver Christian Institutions Our purpose is to magnifie Aristotle but with that liberty which He in love of Truth indulged to himself towards his own Masters Histories have a two-fold use as to our Argument For they supply us with Examples and with Sentences The Examples have so much the more authority as the times and Nations are more virtuous therefore we have preferred the old Greek and Roman above the rest Nor are the Sentences or Judgements of Historians to be contemned especially when they are agreeing for the Law of Nature as we have said is in some sort proved thence and the Law of Nations cannot be proved otherwise Sentences of the Poets and Orators have not so much solidity and we use them oft not so much for proof as ornament I do often use the Authority of the Books either written or approved by Men inspir'd of God making a difference 'twixt the old Law and the new Some do urge the Old Law for the very Law of
the league made by Solomon is said to be made according to the wisedom which God had given him Indeed the Law of Moses specially commands to do good unto their Countrymen Moreover the peculiar diet and course of life prescribed to the Jews did scarce admit any familiar conversation with other people Yet doth it not follow hence either that it was not lawfull to do good to foreiners or that it was not also laudable which the ill Interpretation of later Masters not rightly hath collected thenee And therefore Juvenal saith of the Jews That they would not shew the way to any differing from them in Religion Where by the example of shewing the way are signified easy courtesies and benefits that may be done without any trouble or charge such as Cicero and Seneca say are to be done to strangers whom we never saw before To the same purpose is that of Tacitus of the same Jews Among themselves they are of obstinate faith and very mercifull to all others they bear an hostile hatred So in the New Testament we often read that the Jews have no dealing with other Nations and Apollonius Mola objected to them that they admitted not those that had different opinions of God nor had any thing to do with men of another institution But that this is not the sense of the Law Christ hath taught us by his own example when being every where most observant of the Law he refused not water from the Samaritan woman And David long before sought for refuge among irreligious people no where reprehended for it Solomon in Josephus dedicating the Temple and praying that God in that place would hear also the prayers of strangers saith We are not of an inhuman disposition nor ill affected to those that are not of our own Nation From this rule are to be excepted not only the Nations before mentiond but the Ammonites too and Moabites of whom it is written Thou shalt not seek their prosperity so we turn it rather than their peace nor their good all thy days In which words beneficent leagues with them are forbidden and not a right of War allowed or to be sure which is the judgment of some Hebrews peace is forbidden to be asked of them not to be accepted when t is offerd Certainly a right of War upon the Ammonites is denyed the Hebrews Deut. 2. 19. Nor did Jephtha carry arms against them but after he had tryed the ways of an equal Peace nor David till he was provoked by cruel injuries It remains that we enquire about society in War That this also before the Law was not unlawfull with prophane Nations appears by the example of Abraham aiding the wicked Sodomites with his arms Nor do we find any thing in this matter generally changed by the Law of Moses And this we see to have been the opinion of the Asmonaeans being both skilful of the Law and very reverent as t is evident by their Religious observation of the Sabbath no other use of arms being permitted but only for self-defense And these yet made a league with the Lacedemonians and Romans by the assent of the Priests and people yea and publickly offerd Sacrifice for their safety Instances to the contrary have peculiar causes For if beside those that were expressed in the Law God had signified by his Prophets any Kings or Nations to be odious to him and condemned to an overthrow to undertake the defense of them or to joyn forces with them was without doubt impiety Hither perteins that of the Prophet to Jehosaphat touching the King of Israel shouldest thou help the ungodly and love them that hate the Lord therefore is wrath upon thee from before the Lord. For Michaia the Prophet had already foretold an unhappy issue of the War And that of another Prophet to Amaziah O King let not the Army of Israel go with thee for the Lord is not with Israel to wit with any of the Children of Ephraim Now that this comes not from the nature of the League but from some peculiar quality of the person is evinc'd even hence because Jehosaphat was heavily rebuked a curse also being added for this that for commerce sake he had joyned himself with Ahaziah King of Israel and had entred into such a society as David and Solomon had made with Hiram whom we have said to have been for that reason partly not reprehended partly commended For what is added that Ahaziah did wickedly ought to be referred to his whole life for which God was offended with him and with all his enterprizes as this history is explained in the book entitled Clement's Constitutions Moreover this is to be noted that their cause who being sprung from Jacob had forsaken God well known unto them was worse than the cause of strangers For against those Revolters the rest of their Countrymen were armed by a Law extant Sometimes also Leagues are blamed for some vice of the mind wrence they did proceed so was Asâ—… reprehended by the Prophet for betaking himself to the society of the Syrian upon distrust of God which he had shewed in sending to the Syrian things consecrated But the same King was reproved too because he had plac'd his hope not in God but in Physicians Wherefore it doth not from this history more follow that it is evil by it self or generally to contract society with such as the Syrians were than to consult with Physicians For many things not unlawfull are vitiated by the mind as David's muster and Ezechia's shewing of his treasure So elswhere confidence put in Egypt is reprehended when it was lawful nevertheless for Solomon to contract affinity with the Egyptian To all which this is to be added that the Hebrews under the state of the old Law had express promises of victory if they kept the Law the less need had they to have recourse unto human aids Lastly there are indeed extant in Solomons Proverbs Sentences not a few of shunning the society of wicked men But these are the Advisos of prudence not Precepts of Law and those very Admonitions as most moral sayings are capable of very many exceptions XLIX Nor are they forbidden by the Evangelical Law NOw the Law of the Gospel hath changed nothing in this business yea it hath a more favorable aspect upon leagues whereby aliens from Religion on just cause are relieved because it hath not left beneficence to all sorts of men upon occasion given only free and laudable but hath put it under precept For by Gods example who maketh his Sun to arise upon the good and evil and sendeth rain to refresh them both we are commanded to exclude no kind of men from our benefits Tertullian said well So long as Israel only was his people God did justly command mercy toward their brethren alone But after that he gave unto Christ the Nations for his inheritance and
thus he drew upon himself the punishment due to them Here is proper that of Salvian concerning Kings The Highest power which can restrain the highest sin doth seem to approve it if knowingly it be permitted The Veientes and Latins excuse themselves in Livy that their subjects helped the enemies of Rome without their knowledge But the excuse of Teuca Queen of the Illyrians is not accepted saying Piracy was not exercised by herself but by her subjects For she did not forbid them So of old were the Scyrians condemned by the Amphictyones for suffering some of their men to exercise Piracy Now t is easily presumed the things are known which are conspicuous which are frequent That which is done by many can be unknown to none saith Dion Prusiensis The Aetolians are gravely reprehended by Polybius that when they pretended to be the friends of Philip they did nevertheless suffer their men openly to act hostility and preferred unto honours the principal actors of it CVII Likewise if they receive then that have offended elswhere unless they punish them or yield them up NExt let us consider of Receipt Punishments as we have said may be required naturally by any one to whom no like offense can be objected Commonwealths being instituted it was agreed that the faults of particulars which do properly belong to their own society should be left to themselves and their Rulers to be punisht or dissembled at their pleasure Howbeit so full a right they have not in offenses which in some sort belong to the Society of mankind which other Commonwealths and their Rulers have a right to prosecute just as in every Commonwealth any one in some cases may commence an action much less have they that full power in those offenses whereby another state or the Governour of it is peculiarly wronged and for which therefore He or She for their dignity of security have right to require punishment according to what we have said above This right then the Commonwealth in which the delinquent lives nor the Ruler thereof can justly hinder But seeing Commonwealths are not wont to permit another State to come armed within their bounds to exact punishment nor is that expedient it follows that the Commonwealth wherein he lives that is found guilty ought to do one of the two either punish him according to his desert being called upon or leave him to the judgment of the offended State For this is that which is meant by delivering up so often mentioned in histories So the other Israelites require of the Benjamits to deliver up the wicked men Jud. 20. The Philistins of the Hebrews to deliver up Samson to them as an Evil-doer Jud. 15. So the Lacedemonians waged war against the Messenians because they deliverd not up a certain man that had slain some Lacedemonians and at another time for not delivering them that had ravished the Virgins sent to offer sacrifice So Cato gave his vote that Caesar should be deliverd to the Germans for warring against them without just cause So the Galls required the Fabii should be deliverd to them for fighting against them The Romans demanded of the Hernici the spoilers of their fields and of the Carthaginians Aniilcar not that Noble Captain but another that stirred sip the Galls and afterward they demanded Annibal and Ingurtha of Bocchus in these words in Sallust So shalt thou 〈◊〉 once free us from the sad necessity of prosecuting thee for thy error and him for his villany By the Romans themselves were given up those that had done violence to the Carthaginian Embassadors and those that had done the like to the Embassadors of the Apolloniatae The Achaians required of the Lacedaemonians that they should be yielded who had assalted Lanvic adding except they were yielded the League seemed to be violate So the Athenians by their Herald proclamed if any one had lyen in wait for Philip and had fled to Athens he was to be yielded up The Boeotions exacted of the Hippotenses that they should be yielded up that had killed Phocus All which examples yet are so to be understood that the people or King be not strictly bound to deliver up the party but as we have said either to deliver him up or to punish him For so we read the Eleans to have waged 〈◊〉 upon the Lacedaemonians because they did nothing to them that had done the Eleans injury that is they did neither punish nor deliver up the guilty persone for it is a disjunctive obligation Some times choice is left to them for the better satisfaction that demand the offenders CVIII Whether the persons yielded up and not receiv'd remain Citizens P. Mutius Scaevola's opinion was for the negative because whom the people had given up they seemed to have expell'd him out of their City as when they interdicted him fire and water Brutus is for the affirmative and Cicero after him which opinion is the truer yet not properly for that Argument which Cicero brings because as donation so dedition cannot be understood without acception For the act of donation hath not perfection but by consent of two parties but to deliver up of which we speak here is nothing els but to permit a Citizen to be under the power of another people to do with him what they please Now this permission neither gives nor takes away any right it only takes away the impediment of execution Wherefore if the other people use not the right granted He who is given up will be in that condition that he may be punisht by his own people which was done upon Clodius yielded to the Corsi and not received by them or not punisht as there are many faults wherein either way may be taken The right of the City as also other rights and goods is not lost by the fact it self but by some decree or judgment unless some Law will have the fact esteemed for a judged thing which cannot here be said And after this manner goods also if they be deliver'd up and not accepted will remain whose they were But if the dedition be accepted and afterward by some chance the party return he will not be a Citizen except by a new favour in which sense true is the answer of Medestinus CIX That the rights of suppliants belong to the miserable not to the guilty with the exceptions WHat we have said of punishing a giving up guilty persons pertains not only to those that have always been the subjects of him with whom they are found but to them also who after the crime committed have fled any Whither Nor do those so much-spoken-of rights of suppliants or examples of places of refuge hinder For these profit such as aâ—… oppress'd with causeless hatred not sucâ—… as have committed that which is injurious to human society or to other men Gylyppus the Laconian in Diodorus Siculus speaking of that right of suppliants saith