Chrysostom When the Empire of the Jews began to decline and they made Tributaries to the Romans They neither enjoyed that full liberty which they did formerly nor were they in that pure subjection as now they are But were indeed honoured with the Title of Associates yet they paid Tribute to their Kings and received Governors from them Moreover they had the free use of their own Laws so that if any of their Countrymen offended they themselves punished them by their own Laws And yet I deny not but even this very acknowledgment of their own weakness and insufficiency doth somewhat abate and detract from the Majesty of their Empire XXIII Of such as hold their dominions in Feud But that which seems to some to be more difficultly to be answered is when one Prince holds his Dominion from another as being Lord of the Fief which yet may be sufficiently answered by what hath been said before For in this Contract which is peculiar to the German Nation and no where found but where they have planted themselves two things are especially to be observed 1. The personal Obligation 2. The Right in the Thing so held The Personal Obligation is the same whether a man possesseth the very Right of Soveraignty or any thing else though lying elsewhere by vertue of the Fief but such an Obligation as it takes not from a private man the right of Personal Liberty so neither doth it diminish any thing in a King or State of the Soveraignty which is Civil Liberty which is easily to be understood by those Lands which are called Free-holds which consist in Personal Obligations only but gives no right in the thing so held for these are no other than a species of that unequal League whereof we have discoursed before wherein the one promiseth Fealty and the other safeguard or protection But admit they do swear Faith and Allegiance against all men yet would this detract nothing from the Right of Soveraignty over their own Subjects Not at all in this place to mention that there are ever reserved in these Oaths a tacite Condition that the War be just whereof we shall treat elsewhere But as to the Right in the thihg so held it may be such that the very Right of Governing if held in the right of the Fief or Fee may be lost and so return unto him that gave it as well in case the Family be extinct as also for some notorious crimes and yet notwithstanding in the mean time it ceaseth not to be the Supreme Power For as I said before the thing it self is one thing and the manner of holding it is another And by this Right I find many Kings constituted by the Romans so that the Royal Family failing the Empire did escheat unto themselves as Strabo observes of Paphligonia and some others Lib. 12. XXIV A mans right distinguisht from the exercise of that right Lastly We must also distinguish as in Private Dominion so in Empire between the Right it self and the exercise of that Right or between the first act and the second For as a King though an Infant hath a Right to govern but is not permitted to exercise that Right so he that is mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the good of that Empire that is remote from him Vide Bo. 3. ch 20. §. 3. For in all such cases they have their Lieutenants or Viceroys to act for them wherefore Demetrius living under restraint with Seleucus did forbid any credit to be given to his Letters or unto his Seal Plut. Demetr but commanded that all things should be so governed as if he were dead CHAP. IV. Of a War made by Subjects against their Superiors I. The Question stated II. War against Superiors as such ordinarily unlawful This proved by the Law of Nature III. By the Hebrew Law IV. By the Gospel Law proved by Scriptures V. By the Practice of the Primitive Christians VI. For Inferior Magistrates to make War against the Supreme unlawful Proved by Reasons and Scriptures VII What is to be done in a case of extreme and inevitable Necessity VIII That a free People may make War against their Prince if he be accountable unto them IX And against a King who hath renounc'd his Kingdom X. Or who is about to alienate it as to the delivery of it only XI Or if a King do manifestly carry himself as a professed enemy against the whole Body of his people XII Or shall forfeit his Kingdom by a wilful breach of that condition upon which he was admitted unto the Empire XIII Or if having but one part of the Supreme Power he shall invade the other XIV Or if any such liberty of resistance be in such a case reserved unto the people at his admission XV. How far forth Obedience is due to him that usurps another mans dominions XVI An Vsurper may be killed the War continuing If no Faith nor Agreement be given or made to the contrary XVII Or if Licence be given by an Antecedent Law XVIII Or by warrant from him who hath Right to the Empire XIX Why an Vsurper is not to be killed but in these cases XX. In a controverted Right Private men are not to be Judges I. The Question stated PRivate Men may without doubt make war against private men as the Traveller against the Thief or Robber so may Soveraign Princes and States against Soveraign Princes as David against the King of the Ammonites Private men may make war against Princes if not their own as Abraham against the King of Babylon and his Neighbours so may Soveraign Princes against Private Men whether they be their own Subjects as David against Ishbosheth and his party or Strangers as the Romans against Pyrates The only doubt is whether any person or persons publick or private can make a lawful war against those that are set over them whether as supreme or as subordinate unto them And in the first place It is on all hands granted That they that are commissionated by the highest powers may make war against their Inferiors as Nehemiah did against Tobia and Sanballat by the Authority of Artaxerxes But whether it be lawful for Subjects to make war against those who have the Supreme Power over them or against such as act by and according to their Authority is the thing in question It is also by all good men acknowledged That if the Commands of a Prince shall manifestly contradict either the Law of Nature or the Divine Precepts they are not to be obeyed for the Apostles when they urged that Maxim Deo magis quam hominibus obediendum That God is rather to be obeyed than man Act. 4. unto such as forbad them to Preach in the name of Jesus did but appeal to a Principle of right reason which Nature had insculpt in every mans breast and which Plato expresseth in almost
The Most Excellent Hugo Grotius The Reverend W Evats B D Aetat Suae 77. The Most Excell t HUGO GROTIUs OF the rights of Peace Warr Translated into English by the Reverend William Evats B D Printed for Ralph Smith under the Piazza of the Royall Exch in Cornhill T. Cross Senior Sculpsit THE MOST EXCELLENT HUGO GROTIUS HIS THREE BOOKS Treating of the RIGHTS OF WAR PEACE In the First is handled Whether any War be Just In the Second is shewed The Causes of War both Just and Unjust In the Third is declared What in War is Lawful that is Unpunishable With the ANNOTATIONS digested into the Body of every CHAPTER Translated into ENGLISH by WILLIAM EVATS B. D. LONDON Printed by M. W. for Thomas Basset at the George in Fleetstreet and Ralph Smith at the Bible under the Piazza of the Royal Exchange in Cornhill MDCLXXXII THE PREFACE THE Civil Law whether that proper to the Romans or that appertaining to any other people many have endeavoured either to expound by large Commentaries or to expose to present view by Epitomies But of that Law which governs most Nations and the Rulers of diverse People whether it arise from Nature or be Instituted by Divine Authority or whether it be introduced by Custome or Tacite Consent few have hitherto treated and none at all either Universally or Methodically The usefulness of this Treatise though such a Treatise would highly conduce to the Benefit of Mankind The Excellency of this Science saith Seneca is seen in Leagues Covenants Articles of Agreement and Conditions made between diverse free people and between Kings of Foreign Nations and in all the Rights of War and Peace Insomuch that Euripides prefers it before all other knowledge of things either Divine or Humane saying It 's vain of Things of Gods or Men to boast Past or to come unless what 's Just thou know'st And indeed such a Treatise would be so much the more necessary The Vulgar Error concerning the Rights of War by how much we find many as well in this as in former Ages contemning this part of Justice as if there were nothing in it but an Empty Name There is nothing more frequent in every mans mouth than that of Euphemus in Thucydides To Kings and Cities Imperial there is nothing Unjust that is Profitable Lib. 6. And that also which the Athenians being then the most Potent Party in all Greece told the Metians To humane reason those things are Just which an Equal Necessity on both sides imposeth otherwise whatsoever the stronger Party can and will do the weaker Party must suffer As if it were in the power of Fortune to make Oppression just or that no Common-wealth could be well governed without Injustice Whereunto they usually add That the Sword is the Common Judge or Arbiter of all differences arising between Kings and Foreign Nations Neither is this the opinion of the Vulgar only That all Laws are silenced by War but some such like sayings do often fall from Men otherwise Learned and Prudent whereby this Opinion gathers strength There being nothing more frequently opposed one to another than Law and Arms Thus we find them opposed in Enneus to gain their Right Not at the Law but with their Arms they fight The like we find in Horace who speaking of Achilles saith Nothing by Law but All by Arms he claims Old Antigonus laught at him who beholding him busied in battering the Forts and Cities of his Enemy Alber. Gent. presented him with some Commentaries of Justice Marius was wont to say That he could not hear the Cry of the Laws for the Clashing of Arms. Lysander in Plutarch laying his hand upon his Sword said Plut. Lys He that knows how to use This is the best Judge of the Bounds of Empires To the same purpose was that of Caesar Non est Idem tempus Armorum quod Legum Arms and Laws do never flourish at one and the same time Kings saith Seneca grant many things blindfold especially in times of War for no one man though Just can possibly satisfie the desires of so many Armed Men neither can any one man at the same time perform the Office of a Good Man and of a Good General Nay even Pompey himself though otherwise very Modest yet would say Armatus ut Leges cogitem What do ye tell me of Laws that am in Arms Or as Plutarch frames his Answer to the Mamertines What will ye never cease to upbraid us with your Laws whom ye see begirt with Swords Lib. 9. So easily saith Curtius doth War pervert and destroy even the very Laws of Nature Even among Christian Authors we find many such like sayings That of Tertullian shall suffice instead of the rest Dolus Asperitas Injustitia propria sunt Praeliorum negotia Fraud Cruelty and Oppression are the proper Imployments of War Now they that favour this Opinion will doubtless object against me that of the Comoedian If Things uncertain thou with certain Rules Wilt Guide thou 'lt undertake a Task as Bad As he that would with Reason run stark Mad. Seeing then it would be to no purpose to treat of Right if there be no such thing It will very much concern us to commend and defend this ensuing Discourse by a brief but sound Confutation of this Error But that we may avoid Confusion in disputing with a Multitude This Error confuted let us allow them an Advocate and who fitter than Carneades who arrived at that heighth and perfection of Eloquence that he could plead as strongly for Error as for Truth This man having undertaken to decry Justice especially that part of it which we now defend could find no Argument more forceable than this Men saith he Carneades his Argument against Justice have ordained unto themselves Laws for Profits sake various according to their several manners which also they often change with the Times whereas indeed there is no Natural Law or Right at all For all both Men and other living Creatures are by the meer Guidance of Nature led to such things as to themselves are profitable Wherefore there is either no Justice at all or if there be any it is extream folly because it robs it self to enrich others But what the Philosopoer here saith and the Poet after him What 's Just or Unjust Nature can't discern must by no means be admitted For man indeed is a living body but far more excellent than all others and much more differing from the rest than they do one from another as may easily be demonstrated by many actions Man differs from all other Creatures and how which are proper only to mankind Amongst which this is one that he greedily affects Society that is Community yet not any but that which is peaceable and according to the Model of his Understanding Regular with those of his own kind which the Stoicks term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Familiarity Men saith Chrysostom with men
injurer although those injuries do not the least touch us And the greater the wrong is the greater is our indignation against him that did it No man is equally incensed against him that cuts a purse only as he is against him that commits a Murther But if at any time Justice be attributed to Brute Beasts it is improperly and only by reason of some Analogy or Resemblance that it hath to Humane Justice Pliny l. 8. c. 5. As was that of the 30 Elephants recorded by Pliny who could not by any means be provoked to be instrumental to the Cruelty of King Bacchus in worrying 30 other Elephants which he had bound to so many Trees on purpose to have them destroyed Lib. 10. And that also of the Aspe recorded by the same Pliny who having been sed daily at a mans table killed one of her own young ones for killing the mans son by whom he had been so fed and would never afterwards come into the same house These are said to be just acts not properly but only as they have some faint resemblance of Justice and some light impressions of Reason De ira l. 5. c. 3. Seneca therefore denies that Dumb Beasts partake any thing of Humane passions yet he acknowledgeth that they have somewhat that is like unto them They cannot properly be said to be angry yet have they some violent impulses like unto anger Non vitia sed vitiorum simulachra they have no vices but somewhat like unto Humane vices as Origen pleads against Celsus But whether the act it self whereupon the Law of Nature hath decreed be common to us with other living creatures as the education of our Issue c. or proper unto us only as that God should be Worshipped doth nothing appertain to the very Nature of Right XII The Law of Nature how proved But that any thing may be due by the Law of Nature is usually proved two waies either by Arguments drawn à priori or by such as are drawn à posteriori Whereof the former sort are more convincing the latter more vulgar and plausible the proof by the former way is by shewing the necessary convenience or repugnancy that there is in any thing with rational and Social Nature for whatsoever can be proved to be necessary to the conservation of Humane Nature and Humane society must needs be instituted as a Law by the author of Nature who is the God of order That proof which is à postoriori is when we can though not demonstratively yet with very great probability collect and conclude that to be a Dictate of the Law of Nature which is unanimously believed to be so by all or at least by the most Civilized of all Nations For if the effect be Universal the cause must needs be so to But of so Universal a perswasion there can be no other cause probabily given than that sense it self which is called common That of Hesiod hath been highly celebrated by many What Nations have avow'd Ought not by private men be disallow'd Quae communiter ita videntur fida sunt that which to most men seems true may be believed saith Heraclitus For we can have no stronger proof or evidence of the truth of any thing that cannot be demonstrated than the general consent of the wisest in all Nations that it is so This Aristotle took to be of all others the most powerful and convincing proof Si in id quod dicimus omnes consentiunt If to what we say all men give their consents Of the same mind was Cicero Whatsoever all Nations do grant must needs be the voice of Nature 1 Tusc Ep. 117. Nic. l. 10. 11. So Seneca also What appears the same to all men must undoubtedly be true He that derogates from this faith can never expect to be believed himself saith Aristotle so likewise Tertullian Quod apud multos unum invenitur non est erratum sed traditum What is approved of by the most is not error but Tradition I said before that that must needs be a Dictate of Nature that was acknowledged to be so by all or at least by the most Civilized Nations and deservedly for some people are so fierce and savage that they have hardly any humanity among them as Prophyrie rightly observed Now no man of sound judgment surely will impute this as a general reproach to all mankind Surely this Law of Nature is immutable and the same with all mankind that are of sound and perfect mind Andr. Rhod. But if it appear otherwise to such are of distempered and perverse spirits or have been so corrupted through an evil Education that they have lost even common sense and all natural Notions it doth not in the least weaken the authority of this Law no more than it would evince That Honey is not sweet because it doth not seem so to such as are sick or of distempered Pallates Not much discrepant from this is that of Plutarch in the life of Pompey There neither is nor ever was any man by Nature wild and unsociable many have indeed been made so by accustoming themselves to live like Beasts beyond the bounds of Natures Laws and yet even these by changing their manner of life or the place of their abode are easily reduced to become gentle and sociable And therefore Aristotle in the description that he gives of man makes this as it were his proper passion That he is by Nature a Creature mild and Tractable Top. l. 5. c. 3. Especially if we judge of him according to that general rule that the same Aristotle laies down Quid naturale sit spectandum in his quae bene secundum naturam se habent non in depravatis Pol. l. 1. 5. What is the true nature of any thing is best known by those that are perfect in their own kind and not by those that are depraved and corrupted For if we steer our judgments by this Rule we cannot but acknowledge man to be in his own nature the most meek gentle and peaceable creature of all others as having nothing by nature given him whereby either to offend others or to defend himself Besides as Nature hath made him the gentlest of all other living Creatures So as Philo observes hath she made him sociable nay greedy of Society and hath also fitted him thereunto by giving him that excellent Ornament of speech wherewith his Passions though never so fierce and raging are suddenly as if by some spell or incantation becalmed XIII Voluntary Laws Another species of jus as taken for a Law there is which we call voluntary because it is derived from the will which is either Divine or humane XIV Humane Laws divided We shall begin with that which is humane because it is more generally known and this is either Civil or that which is more extended or that which is more contracted than Civil The Civil Law is that which ariseth from the Civil power The Civil power
is that which governs any City Now a City is a compleat company of free-men associated for the defence of their own Rights and for their common profit That Law that is of lesser extent and ariseth not from the Civil Power though subject unto it is various comprehending under it that of a Father over his Children that of a Master over his Servants and the like That Law which is more extensive than that which is Civil is that of Nations which derives its authority from the joynt consent of all or at least of many Nations I say of many because there is hardly any Law besides that of Nature which also is usually called the Law of Nations that is common to all Nations yea oft-times that which is accounted the Law of Nations in one part of the world in another is not as we shall shew hereafter when we treat of Captivity and Postliminy Now the Law of Nations is proved in the same manner as the unwritten Civil Law is namely by continual use and the testimony of men skilful in the Laws and therefore Dio Chrysostome calls it the daughter of time and experience and to this purpose are the Annals of former ages of singular use XV. The Divine voluntary Law divided The divine voluntary Law is that which is warranted by the express will of God as may be understood by the very word it self whereby it is differenced from the naturall Law which in some sense may be termed Divine also And here that which was said by Anaxarchus in Plutarch though somewhat confusedly may take place namely That God doth not will things because they are just but things are therefore just that is rightly due because he wiâ—s them Now this Law was given by God either to all mankind or to one Nation to all mankind we find that God gave Laws thâ—iâ—e That this voluntary Divine Law was as obliging before the writing of it in â—ooks or Tables as it was or is since is clear for first if the obliging power were only from the time when it was written by Moses they that lived before Moses were no waies obliged by it because till then it was not written Secondly then the obligation must needs extend it self to all the parts of the Law so written and so to every circumstance of the Judaical Sabbath as well as to the acknowledgement of the only true God Neither is it sufficient to say it was written in the times of Adam and Noah it being uncertain unto us now whether there were so Ancient a Record or not much more * whether that which was written were as the Tables of the Law written by the finger of God * Dr. Hammond The Six Laws given by God to Adam and Noah as First that against strange and false worship Secondly that of blessing the name of God that is of adoring invocating and praising God Thirdly that of judgment that is of erecting of Magistrates and requiring administration of Justice Fourthly That of disclosing Nakedness i. e. setting bounds to lust and prohibiting Marriages within such degrees Fifthly That of shedding blood against Homicides And Sixthly That against Theft and Rapine and of doing to all as they would be done unto are no where recorded in holy Writ yet were they as obliging to the Jâ—ws that knew them as any of the written Laws of Moses we shall find them toucht at Act. 15.20 â—ut so surely that had it not been for those writings of the Jews that were never within their Canons nor in ours we of these times had never known to what that reference belonged And as all the Laws that were given to Adam Noah and the rest of the Patriarchs although not committed to writing nor traduced to us yet lost nothing of their obliging power to them to whom they were given so in the times of the new Law although Christ revealed much of his Fathers will in Sermons and other occasional discourses very few whereof are written and those that are were not so written until many years after his Resurrection yet will no man say that because they were not left written therefore they did not oblige his Auditors First Immediately after the Creation of man Secondly in the Restauration of mankind after the Floud and Thirdly in that more perfect reparation by Christ Tâ—ese three Laws do doubtless oblige all mankind as soon as and as far forth as men arrive at the knowledge of them XVI The Law given to the Jews did not oblige strangers Of all the Nations of the Earth there was but one to whom God vouchsafed to give Laws peculiar to themselves which was that of the Jews What Nation saith Moses so great to whom God hath given Statutes and judgements so righteous as this whole Law Deut. 4.7 So likwise Davia The Lord hath shewed his word unto Jacob his Statutes and ordinances unto Israel Non ita fecit genti ulli He hath not done so to any Nation neither have the Heathen knowledge of his Laws Psalm 147. Doubtless then those Jews and among them Tryphon himself in his disceptations against Justine do grosly err who hold That even Foreigners if they would be saved must submit to the yoke of the Mosaical Law For that Law binds none but those to whom it was given and who these are the Preface to the Law it self will plainly declare Audi Israel Hear O Israel saith the Text And every where we read that the Covenant was made with them and that they were chosen to be the peculiar people of God which Maimonides acknowledgeth to be true and proves it out of Deut. 33.4 But even amongst the Jews there always lived some Foreigners being holy men and such as feared God as the Syrophoenician Woman Mat. 15.22 Cornelius Acts 10.2 The Grecians mentioned Acts 18.4 whom they called the pious among the Gentiles such as are termed strangers Lev. 22.25 and a sojourner Lev. 25.47 whom the Chaldee Paraphrast calls an inhabitant that is uncircumcised whereof we may read Exod. 12.45 who was distinguished from a Proselyte who though a Foreigner yet was circumcised as appears bâ— comparing this place with that of Numb 9.14 These uncircumcised Sojourners Maimonides admits may be partakers of the blessings of the life to come St. Chrysostome upon the second to the Romans Rom. 2.9 10. where St Paul mentions the Jew and Gentile wrâ—tes thus What Jew and what Gentile doth St. Paul here mean surely those saith he that lived before Christ as Job the Ninevites Melchisedeck Cornelius c. And what Graecians doth he discourse of Surely not such as were Idolaters but such as worshipped God according to the Law of Nature who setting aside the Jewish Ceremonies religiously observed all things that appertained to an holy life And again The Graecian he calls not him that worshipped Idols but him that was pious and devout though be submitted not to the Jewish Rites And thus likewise doth he expound that of St. Paul To him
signifies the removal of impediments only I shall not here meddle with is either full and perfect which gives us a right to do somethings altogether lawfully or less full and imperfect which gives us only an impunity with men and a Right that no man shall give us any lawful lett or impediment in the doing of it Concerning the former of these the same may be said as is of positive precepts namely That what the Law thus permits cannot be contrary to the Law of Nature but of what is permitted in the latter sense Vid. Chrysâ—â—t ad 7 ad Rom. jaxta finem the case may be otherwise but this collection takes place very rarâ—ly Because where the words permitting are ambiguous it is much more convenient for us to judge of whether of these two Permissions it is to be understood by the Law of Nature Christian Princes may frame their Laws according to those of Moses unless in three cases than by arguing from the manner of the permission to proceed to judge of the Law of Nature In the next place Soveraign Princes being Christians may from hence learn to form their Laws according to those given by Moses unless it appear that those Laws were such as did wholly relate either to the coming of Christ or to the Evangelical Law not then revealed or that such Laws are contrary to what Christ did either in general or particularly command For excepting these three cases no other can be imagined why what Moses commanded shall now be unlawful Again we may hence learn that whatsoever was enjoyned by Moses which may serve to the improvement of those vertues which Christ exacted from his Disciples ought now to be as strictly if not more observed by us than heretofore it was by them The reason whereof is this because what vertues soever Christ requires of us as humility patience love c. are to be performed in an higher degree than they were under the state of the Jewish Law And not without good reason because of those Celestial promises that are held forth unto us in the Gospel which are more clear than under the Law De Pudicitia Our Christian liberty saith Tertullian is no way injurious unto innocency for the whole Law as to piety truth constancy chastity justice De Virginitate 94. On the first of St. Mat. mercy benevolence and modesty stands yet unrepealed Nay a larger proportion of these saith Chrysostome is expected from us because the graces of the spirit are more plentifully poured down upon us than they were upon them Athanasius also tells us That Christ makes the precepts of the Law to be of a larger extent than Moses did For Moses said only Thou shalt not kill but Christ saith Thou shalt not be angry unadvisedly Moses said Thou shalt not commit Adultery but Christ saith Thou shalt not look to lust after a woman Heb. 7.19.8.4 Rom. 1â— 5 Gal. 3 25. And therefore the Old Law in comparison to the New is said to be weak and not without blemish And Christ is said to be the end of the Law But the Law our School Mistriss or our guide to lead us unto Christ Gal. 3.25 So the Law of the Sabbath and that of Tithes do oblige us Christians not to yield a lesser proportion of time for the worship of God than a seventh day nor a lesser proportion of the fruits of the Earth for the Priests Alimony and other the like sacred uses than the tenth part CHAP. II. Whether it be lawful at any time to make War I. That to make War is not repugnant to the Law of Nature proved by reason II. By Histories III. By consent IV. That it is not repugnant to the Law of Nations V. That the voluntary Divine Law before Christ was not against it proved and the objections to the contrary answered VI. Certain precautions concerning this question whether War be repugnant to the Law of the Gospel VII Arguments for the negative opinion out of the holy Scriptures VIII The arguments out of Scripture for the Affirmative answered XI The consent of the primitive Christians concerning this examined I. The Law of Nature is not against it HAving thus taken a view of the springs from whence all Rights flow let us now begin with the most general Question Whether any War be just or whether it be lawful at any time to make War But this very question with others that follow are to be dscust in the first place by the Law of Nature Cicero in several places very learnedly proves out of the books of some Stoicks That there are some principles instill'd into us by Nature her helf as soon as we are born as to love our selves and to hold nothing dearer unto us than our selves and in order to the conservation of that being that she hath given us to love and rejoyce in those things which conduce to the safety of the whole body and of every member thereof and to abhor those things that tend to its destruction Hence it comes that there is no man but being left to his own choice had rather that all his members should be proportionable and entire than by use broken or crooked Therefore our first duty according to Natures instinct is to desire those things most that are most agreeable to our own Nature and to avoid those that are destructive unto it But these things thus known and reason beginning to sprout forth from her latent seeds then our second duty is to follow such things as are agreeable to reason it self which is ever more to be preferred before those that are convenient to the body and consequently to embrace those things that accord with justice and honesty rather than those whereunto we are led by sense and appetite because the Principles of our Nature do chiefly commend us to right reason as to our best guide and protectrix For as Nature in all other things never produceth her best and choicest fruits until she arrives at maturity Right reason is Natures best guide Sen. Ep. 124. Ep. 76.121.128 so neither doth humane nature her self produce her best operations until reason grows up to perfection And therefore should Reason it self be much dearer unto us than those things whereby we arrive unto it Now these things being undeniably true and without any farther demonstration by all men of sound judgment granted it follows that in examining the Law of Nature we find out what is agreeable to those beginnings or first principles of Nature and then that we proceed to that which though in order of time later yet is much more worthy to be followed and that not as accepted only if it may be granted but as that which by all means is to be required Moreover that which we call honest according to the diversity of the matter is sometimes taken strictly Honesty considered two waies strictly as in a point or largely For whatsoever may be commendably done and yet may
to be acquired No Prescription without strong conjectures of Dereliction can lye against a King as such ☜ within such a certain time at all appertain to the things belonging to the Supreme Power Yet might the people in the first Creation of the Empire have exprest their will by what means and in what space of time the Government by not using it should be lost which Will so exprest ought without doubt to have been followed Nor could it then have been infringed by the King himself though invested with Supreme Power because it appertains not to the Empire it self but to the manner of holding it as we have elsewhere explained it XIII What is not inseparable from Soveraignty may be got or lost by Prescription But what things soever are not essential to the Soveraign Power nor belongs unto it as its natural proprieties but may naturally be either separated from it or at least communicated with others are also subject to the Civil Laws of every people which are in force concerning Usucapion and Prescription So we read of some Subjects who have gained by Prescription that it cannot be appealed from them yet so that always some appeal may be made from namely by Petition or some such like way For that there should be no Appeal at all from any is not consistent with the condition of a Subject and therefore must needs appertain to Soveraignty or to some essential part of it nor can it otherwise be obtained than according to the Law of Nature to which the highest powers themselves are subject XIV That Subjects may at all times assert their own Liberty refuted Vasquius refuted Hence it is easie to discern how far forth we may admit of that which Vasquius and others maintain namely that Subjects may at all times endeavour if they can to recover that liberty which belongs to a free people because what was by force got may by force be regained And of that which at first proceeded from the will it is lawful to repent and to change the will for both that Empire that was at first gained by force may in time by the tacite consent of the people yielding thereunto a willing obedience receive a firm and established Right As also that will either at the first establishment of the Empire or by a postnate fact might be such as should give such a Right as should not afterwards depend upon that will It was an excellent Speech that Josephus records of King Agrippa to those Jews who from their preposterous endeavours to recover their lost liberty were called Zealots Intempestivum est nunc libertatem concupiscere olim ne ea amitteretur certatum oportuit To contend now for your liberty is unseasonable this ye should have done before ye had lost it To be enslaved to another is grievous the miseries of War are to be preferred before it But if being by the fortune of the War reduced into bondage ye attempt to free your selves Non amantes libertatis dicendi estis sed servi contumaces Ye will not be thought to affect liberty but rebellion So Josephus himself to the same Jews Honestum est pro patria pugnare c. To fight in defence of our Liberty whilst we have it is honest nay honourable but having long since lost it now to endeavour by Arms to recover it is to make our condition which was before tolerable De Cyri Inst lib. 3. now desperate Thus did Cyrus in Xenophon answer King Armenius who would fain have excused his defection by his earnest desire of his lost liberty yet notwithstanding I make no question but that a long continued patience in a King as I have above described may be sufficient for the people to recover their liberty upon a presumption of a Dereliction XV. Things merely in our power are not lost by Prescription Neither are those Rights lost by Prescription that are not exercised frequently but may be once at a time convenient as the right of redemption of things morgaged or given in pledge As also those Rights of our free liberty to do such other acts whereunto that act already executed is not directly contrary but is rather comprehended in it as a part is in its whole As in case a man hath entred into an Association with one of his Neighbours only and continued the same for an hundred years whereas he was at liberty to have done the like with others also within that time those rights of his liberty I say are not by Prescription lost until being prohibited to exercise it or compelled to forego it he obeys it and sufficiently signifie his consent thereunto which being congruous not only to the Civil Law but to natural reason may also be in force even amongst men of the highest fortunes CHAP. V. How a Right over Persons was originally gained Where also the Rights of Parents over their Children of Matrimony of Colledges or Societies of Kings over Subjects and of Masters over Servants are discust I. What Right Parents have over their Children II. This Right varyes with their Age Of Infants and what right they have over their Estates III. Of their Right over their Children being past their Infancy whilst they are in their Family IV. What coercive power Parents have over them V. What right they have to sell them VI. What right they have over them when out of their Infancy and Family VII Their power distinguisht into Natural and Civil VIII Of the Right of an Husband over his Wife IX Whether the tying up of one man to one woman inseparably be necessary to marriage by the Law of Nature or of the Gospel only X. By the sole Law of Nature the want of the consent of Parents nulls not a marriage XI By the Evangelical Law the marriage of anothers Wife or Husband is ipso facto void XII By the Law of Nature the marriage of Parents with their Children is void XIII So are marriages of Brothers and Sisters of the Mother-in-Law with the Son-in-Law c. by the Divine Voluntary Law XIV But of Kindred more remote it doth not appear that by that Law they are unlawful XV. Some of those Contracts which the Law calls concubinary may amount to marriages and be lawful XVI Some marriages though unlawful to have been done yet being done are lawful XVII Of the right of the major part of a Society XVIII Where the Votes are equal which part carries the Sentence XIX What Sentences are to be divided and what conjoyned XX. The rights of the Absent are devolved on those that are present XXI What order is used among persons equal even among Kings XXII Where diverse Societies claim unequal shares in the same thing their Votes shall be reckoned according to their respective parts in the thing XXIII Of the power that Cities have over their Citizens XXIV Whether Citizens may desert their City explained by distinction XXV No City hath power over her banished Citizens XXVI What power by
altogether discharged of the duty incumbent on him as a Father Nature it self will not admit of such an alienation but yet he may commit his Son to another man to be fed and educated by way of Substitution XXVII What power Lords have over their Slaves The most ignoble of all Subjections is that whereby a man gives himself up to perfect slavery Such were they among the Germans of whom Tacitus speaks That sold themselves for food and rayment And of such there were great numbers among the Graecians who as Dion Prusaeensis notes of Freemen became Slaves and performed their service according to Articles of Agreement Now that we call perfect Bondage which tyes a man during life to perform all manner of work for no other reward but food and cloathing which if it extend it self to whatsoever conduceth to the preservation of Nature is not much to be grieved at For our continual labour is indifferently well recompensed with a constant supply of things necessary for life which they that hire out themselves by the day only do often want This the Stoick Possidonius observed out of Histories that many in ancient times conscious of their own weakness to maintain themselves voluntarily submitted themselves to be commanded by others Constantly performing what they were able and receiving from their Lords whatsoever was necessary for them Like him in Plautus If I were free the charge were mine But being bound that charge is thine XXVIII Whether this power extend to life and death No Lord can have absolute power over the life and death of his Slave if we respect internal Justice For no man can take away the life of another and be guiltless unless it be for some capital crime committed and yet by the Laws of some Nations he that shall kill his Slave for what cause soever is indemnified as Kings are in all Nations by reason of their vast and unlimited power For as Seneca notes If a Servant dare not plead with his Master for fear of suffering the worst of torments De benef lib. 3. c. 22. no more dare Subjects with their Prince nor Soldiers with their General who have all of them equal Right though under unequal Titles No Master then hath a just power to injure his Slave but only as That is sometimes improperly called Just which being done is not punishable Such a Right did Solon give to Parents over their own Children and so did the ancient Roman Laws witness that of Sopater It was lawful for him being a Father to kill his own Children if they offended for the Law presuming upon the Fathers Integrity had permitted such a Right unto him The like power saith Dion we find permitted in many Nations famous for wise and wholesom Laws XXIX Of the Children of Slaves that are born and bred in their Masters family Vide infra Ch. 8. §. 18. Pliny l. 10. c. 34. de columbis Lex Visigothica The Sclavonian Law judgeth the Children by the Father The Laws uf England Littleton de Villanagio The Roman Laws What the Law of Nature is in this case If the Parents cannot maintain the Child but at the Lords charge the Child is a Slave But of the children of Captives which are born of Slaves in their Lords Family there is yet a more difficult question For by the Laws of the Romans and of other Nations concerning Captives as we shall elsewhere shew as of brute Beasts so of people of a servile condition it holds true that Partus sequitur Ventrem As is the Mother so is the Child But this notwithstanding is not altogether congruous to the Law of Nature especially where the Father of the Child may be sufficiently known For since even among dumb creatures as Pliny observes of Doves Amor utrique sobolis aequalis Both Parents are equally concerned for their own young thereby acknowledging their common interest in them So also had not the Civil Law otherwise determined the Child had followed the condition of the Father no less than that of the Mother For if the Son saith the Visigothick Law be born and created by both Parents why should he follow the condition of the Mother only who without the Father could not beget him Among the Sclavonians as also in some parts of Italy among the Lombards and Saxons the children are accounted either bond or free from their Father The Laws of England judge of the Child not by the Mother but by the Father for the Husband and Wife being but one person in our Law and the Wife marrying a Freeman by the common Law of England the Issue is free Which Laws though different from the Roman Civil Law yet as Aquinus notes doth not much deviate from the Law of Nature And why not since among the Romans by their Mensian Law if both the Parents were Aliens the Child born of them were so too as Vlpian tells us Now let us admit that both the Parents are Slaves it is worth our pains to know whether naturally the Child be so or not And certainly if the Parents have no other means to breed up the Child but in their Lords family or at his charge they have a power to deliver him up to the Lord for a Slave For although the Child were ingenuous and free-born yet in such a case they have power by the Law to sell him And in case the Parents were Servants to several Masters then by the Law of Nature the Children were to be divided between their respective Lords But if they had but one Child then of right it belonged to him whose Slave the Father was the Lord of the Mother being first satisfied for his half part and yet of the Children of him that was born in the house of his Lord two parts did accrew to his Lord and but one to the Lord of the Mother according to the Edict of Theodoric Otherwise not as Cassiodore records Now whereas I said before that the Parents if they had not any means to breed up their Children but at the charge of their Lord might deliver them up unto him as his Slaves it may seem that this Power doth naturally arise from their supplying them with food and other necessaries and therefore where there is no such necessity as where there are other means to breed them they have no right to sell them And so it was adjudged by Charles the Bald wherefore the Right that these Lords have in the Children of their bond-servants springs from the many years Alimony that is given them by the Lord before they could be serviceable to him which they are to recompense by their future labour And for this cause the Parents cannot dispose of them to any other man neither may the Servant flee from his Lord until full satisfaction be given unto that Lord for the charge of their education But if the Lord be too unmercifully cruel then that even they who have surrendred themselves as Slaves may provide for their
his willingness to accept of it by some outward signs which though it be usually subsequent to the tender of the giver yet may it also precede it As when a man requires that such a thing should be given him in this case it is presumed that he is willing to receive it unless it do appear that he hath altered his mind as to other things requisite as well to the transferring as to the acception of a Right in things and how both may be safely done we shall shew more fully when we treat of promises for concerning both these Nature hath prescribed the same Rules III. Empires whether alienable As other things so are Empires alienable by him in whose dominion they truly are that is as we have said before by a King whose Kingdom is Patrimonial But otherwise by the people yet not without the Kngs consent because he hath a kind of Right in it though but to the present revenue which cannot without his own act be taken from him Thus it stands with a whole Soveraign Empire IV. That the whole cannot alienate the parts that consent not to the Alienation But as to the Alienation of any one part of the whole it is further requisite that that part that is to be alienated consent thereunto For they that first entred into that society did as may be presumed contract a firm and immortal League among themselves for the defence of all those parts which are called Integrants Whence it follows that these parts are not so under their own body as the members of a natural body which cannot live without the life of the body and are therefore for the preservation of the body sometimes justly cut off But this body whereof we now speak is constituted after another manner namely by mutual consent and agreement and therefore its power over its parts depends wholly upon the will and intention of them who first instituted that society who without doubt would never have granted such a power to the whole as to abscind from it self any of its parts and to give them up into the power of another V. Nor any part over themselves but in cases of necessity Neither is it on the other side in the power of any part to recede from the whole unless it be evident that it cannot otherwise subsist For as we have said already In omnibus quae sunt humani instituti excepta videtur necessitas summa quae rem reducit ad merum jus naturae All humane constitutions give place to the Law of Nature in casâ—s of unavoidable necessity Almost all Nations saith St. Augustin are taught by the very voice of Nature to submit to the will of the Conqueror rather than to hazard an utter devastation And therefore as Herodotus notes In that Oath wherewith the Grecians bound themselves to be faithful to the Persians as to the Conquerour this Salvo was added Vide infra c. 24. §. 6. Nisi planè coacti Vnless they were manifestly forced to the contrary Thus we read that Anaxilaus was deservedly acquitted by the Spartans for delivering up the City Byzantium being distressed more by famine within than by the Sword without And Xenophon tells us that the Emperour Anastasius returned thanks to his Commanders for their timely surrender of the City Martyropolis thereby preventing the unnecessary effusion of blood since it was impossible to be defended Cum fame habitare virtus recusat Valour will not cohabit with famine saith Procopius neither can we expect that Nature should act vigorously Goth. l. 4. when she wants nourishment So Cephalas in his Epistle to the Emperor Alexius being straitly besieged in Larissa Yielding to necessity we must deliver up the Town to those who not only besiege us An. Commen lib. 6. but maninifestly starve us for what can valour do against the force of Nature VI. The causes of this different power Now the reason why in cases of absolute necessity every part of the society hath more right to defend it self than the body of that society can have over its parts is because that part that is so necessitated may use that Right which Nature gave it before that society was instituted which the whole society cannot Neither let any man say that the Right of Empire is in the whole society as in its subject and therefore may be alienated by it as things held in propriety may for the Government is indeed in the whole body as in its adequate Subject but not divisibly in many bodies as the Soul is in perfect Bodies But that necessity that enforceth us to flee back to the Original Right of Nature for defence cannot here have place For under that Right the free use of Nature is comprehended as eating and detaining what is ours which are natural but so is not the Right of Alienation which receiving its authority from humane institution is from it to receive its bounds VII That the Empire over some place may be alienated But as to the Empire over such a place being a part of the Territory that lies uninhabited and desart I cannot discern any reason at all why it may not be alienated either by a free people or by a King with his peoples consent For as every part of the people have equally freedom of Will so have they equally a Right to gainsay whatsoever any other would have but the Territory it self whether wholly or in its part considered is the peoples Common undivided and therefore wholly at their dispose but as to the soveraignty over any part of the people if as I have said it cannot be alienated by the whole body of the people much less can it be done by a King who though he have the full power yet he hath it not fully VIII No part alienable either for profit or necessity by a King alone And here I must crave leave to dissent from those Civilians who hold that no part of an Empire can be alienated by a King unless it be for publick profit or out of necessity unless they understand it in this sence that where the profit doth equally aâ—crew both to the whole Nation and to that part which is to be alienated the consent of both may easily be collected from their silence though of no long time which may much more easily be presumed if there appear likewise a necessity for it But if either part do manifestly declare against it there can be no Right to alienate unless the part be evidently enforced either to separate from the whole or suffer themselves inevitably to be destroyed IX Infeudations and Morgages of the parts of the Empire unlawful Under Alienation is deservedly comprised even Infeudations under penalty of confiscation for breach of Faith given to the Lord of the Feoff or when the Family is extinct * Sub onere commâ—ssaeâ— feloâ—ia aut deficiente familia Vide l. 1. c. 4. §. 12. For even this is a conditional Alienation wherefore we often see
Kingdom of Epirus by the Judgement of his Father Pyrrhus having no lawful Issue Paus l. 1. The Tartars make no difference between Bastards and them that are Legitimate So Herodotus of the Persians Mos est illis ut Nothus regnet dum legitimus aliquis reperitur Who admit of Bastards till one that is legitimate may be found And we read in Justine of a Treaty between King Atheas and Philip concerning the Adopting of Philip to succeed him in the Kingdom of Scythia Jugurtha though a Bastard Salust bell Jugurth yet succeeded in the Kingdom of Numidia by Adoption The like we read of those Kingdoms which the Goths and Lombards conquered that the succession often passed by Adoption Nay Paul Diac. l. 6. de gest Longob the succession to the Kingdom shall pass to the nearest of kin to him that last possest it though he were nothing of kin to the first King If any such succession be in force in those places Thus did Mithridates in Justine plead That Paphlagonia became his Fathers Inheritance by the death of all its domestick Kings XIII In Kingdoms that are Indivisible the eldest succeeds But in case express caution be given that the Kingdom shall not be divided and yet it be not exprest who shall succeed then the Eldest whether Son or Daughter shall enjoy the Kingdom So saith Nicetas Coniates Nature indeed observing her own order gives the greatest honour to the first-born But God hath a Prerogative above Nature and acts not alwayes by her order And speaking of Isaacius he saith That by his birth-right the succession to the Kingdom was his The like is said of Hircanus in Josephus In the Talmud under the Title of Kings we read That he that hath the best title to an estate of inheritance hath also the best title to the possession of a Kingdom and therefore the eldest Son is alwayes preferred before the younger Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne And in another place he terms it the Law of Kingdoms Livy makes mention of two Brethren Allobrogi contending for a Kingdom whereof the younger had the worst Title but the greatest Power Of all Darius his Sons Artabazanes being the first-born claimed the Kingdom as his birth-right Quod Jus ordo nascendi Natura ipsa gentibus dedit Which Right saith Justine both the order of birth Lib. 2. and Nature it self hath given to Nations which in another place he calls the Law of Nations Lib. 40. As Livy also saith It is a priviledge due by the order both of Age and Nature yet must this be understood with this restriction unless the Father by his Testament do otherwise dispose of the succession as Ptolomy in Justin did his Kingdom to his youngest Son But yet he that shall thus succeed is bound to gratifie his Brethren for their shares with all respect and honour if and as far forth as he shall be able to do it XIV A Kingdom by the peoples consent hereditary if in doubt is presumed to be indivisible But those Kingdoms that by the Peoples free consent are made hereditary may by guessing at the will of the people be transferred Now because it may easily be presumed that the people will give their consent to that which is most expedient therefore in the first place it will follow That unless some Law or Custome do otherwise determine as in many it hath and may do the Kingdom should stand entire and undivided because whilest so it will be the better able both to defend it self and to conserve the people in peace and unity Lib. 21. A Kingdom united is stronger than when divided Of this opinion was Justin Firmius futurum esse regnum si penes unum remansisset quam si portionibus inter filios divideretur arbitrabantur They judged that the Empire would be more firm being intirely possest by one than it could possibly be if divided amongst many Sons XV. The succession not to last beyond the line of the first King Again It being granted that the peoples consent is easily gained to what shall be most expedient it will in the next place follow That the succession should descend from the first King in a right line Because that Family was then electeed as being thought the most Noble which Family being extinct the Kingdom doth return back to the people Thus Curtius adviseth * Lib. 8. That the Soveraign Power be strongly fixt to one Royal Family which ought to claim by an hereditary Right For the people being so accustomed will not only reverence his person but will have the very name of their King in great esteem And therefore no man ought to usurp that dignity but he that was born unto it XVI Natural Issue not concerned in it Thirdly It will thence likewise follow That none should be admitted to succeed in the Royal Throne but he that is born Legitimate Not the Natural Sons because they are subject to be reproacht to whose Mother the Father did never vouchsafe the honour of marriage And therefore of such there can be no certainty who was the Father But in the succession to Crowns the people ought to have the greatest assurance that in such a case can be given to avoid Controversies For which cause it was that the Macedonians preferred Demetrius the younger Son to the Throne rather than Perseus the elder because he was born in lawful Wedlock Not Sons by Adoption because the people are apt to conceive greater hopes and to have their Kings in greater esteem and veneration when they know them to be descended from a Royal Stock Est in Juvencis est in equis patrum Virtus In Horse and Oxe we may descry The Syre's Generosity XVII Males preferred before Females in the same degree Fourthly That of those that have equal Title to the Inheritance either as being in the same degree or as succeeding to their Parents who were in the same degree the Male Issue be preferred before the Female because Men are fitter for War and to administer other Regal duties than Women can be XVIII The elder before the younger Fifthly That of Sons or of Daughters if there be no Sons the elder be preferred before the younger because it may easily be believed that as he is of more years so he either then is or may sooner arrive to be of sounder Judgement than the younger So Cyrus in Xenophon Imperium relinquo majori Natu I bequeath my Kingdom to my Eldest Son as being of most experience and consequently best knowing how to govern And because our green years will sooner ripen than our Sex change therefore the prerogative of our Sex is much to be preferred before the priviledge of our Age. Wherefore Herodotus where he tells us Lib. 7. that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom gives this as the reason Because
of their Promises not only among the Romans but among the Grecians And against some they introduced the benefit of Restitution But these are the peculiar effects of the Civil Law and do no whit appertain to the Laws either of Nature or Nations except only in this that where they are received it is agreeable to Nature that they should be observ'd Insomuch that if a Foreigner shall contract with a Citizen he shall be bound up by the Laws of that City as if he were for that time a Subject of that Nation But it were otherwise in case such a Contract were made either on the Seas or in some desart Island or by Letters between two persons inhabiting diverse Nations For then such Agreements should be regulated by the Law of Nature only as are the Agreements made between such as are invested with the Supreme Power as they are such For in these what they do privately may by their Laws be made void when it is done in favour to those powers but not when done to their Punishment VI. A Promise made through error how far Naturally it obligeth Concerning a Promise made by an error or mistake in the person promising the question is yet more difficult For we are to distinguish between that Error which is about the substance of the thing promised and that which concerns not the substance and then we are to consider whether the Fraud gave occasion to the Promise or not Again whether he with whom we have to do be guilty of the Fraud or not And lastly Whether the Act be strictly due or binds only in Honesty and Conscience For the opinions of Lawyers do vary according to the variety of these cases declaring some acts to be void and others valid But so that according to his will and pleasure that is injured the promise may be either revoked or reformed But most of these distinctions proceed from the Roman Laws as well from the old Civil Law as from the Praetorian And some of them are either not altogether true or not well digested But yet it sufficeth to chalk out a way for us to find out the natural truth for as concerning the force and efficacy of Laws this hath ever been allowed of by the general consent of almost all Nations That when a Law is enacted upon the presumption of such a Fact as was not really so done as was suggested and believed that Law is not obliging because the truth of the Fact failing the foundation of that Law faileth with it But when a Law is grounded upon such a presumption may be gathered from the matter of that Law from the Words and from other Circumstances The like may be said in this case if a Promise be made upon the belief of such a fact as indeed never was done that Promise naturally is of no force because the Promiser did not give his consent absolutely to the thing promised but upon such a condition if not exprest yet presumed as really was not As in that case mentioned by Cicero of him who falsly believing his own Son to be dead appointed a stranger to be his heir And yet in case the Promiser were neglective either in his diligence to examine and search out the truth of his Sons death or in his care of expressing his own sense and did thereby occasion any damage to the person to whom he made that Promise he shall be obliged to repair it Not upon the account of his Promise made but for the damage which through his neglect was sustained by him to whom it was made whereof we shall speak more anon But if there were an error or mistake in the person promising and yet that Error was not the cause of the Promise made the act shall be valid because there was nothing wanting of a true consent But if in this case also the person to whom the Promise was made did by any fraud of his directly or indirectly occasion that error what damage soever shall accrue to the Promiser by reason of that Error shall be by him repaired But if the Promise were but in part occasioned by an Error then as to the other part the Promise shall stand good VII A Promise made through fear obligeth Concerning those Promises that are made through Fear questions do arise no less perpiext For herein they do usually distinguish of Fears which are either great and vehement or light and slender If great then they consider whether it be so absolutely or in respect only of the person fearing Then whether it be occasioned justly or unjustly and whether by him to whom the Promise was made or by some other As also they distinguish of the Acts whether free and generous or grievous and burdensome and according to this diversity are some Acts said to be void others revocable at the pleasure of the Promiser and others to be wholly renewed Concerning every one of these cases there are great differences in opinions But I do wholly incline to those who hold That setting aside that Authority of the Civil Law which sometimes takes away and sometimes moderates the binding power of such promises He that promiseth any thing through Fear is obliged to perform what he hath so promised because the consent he gave was not conditional as in the case of Error but absolute For as Aristotle well observes He that for fear of being shipwrackt throws his goods overboard Eth. Nic. 3. would willingly preserve them on condition that he might not be wreckt but upon a serious consideration of the present danger he is in he absolutely resolves that his goods rather than himself shall perish But yet we must also crave this allowance That if he to whom the Promise was made did occasion not a just but an unjust Fear though but slight and that thereupon the Promise was so made he is bound to discharge the Promiser if he desire it Not that the Promise is in it self void but for the damage that he sustained who made it by reason of the injury done him See Chap. 17.6.19 and P. 3. ch 19. §. 1. But what exceptions the Law of Nations admits herein shall in its proper place be hereafter explained But that some Acts are rescinded which were made through Fear being occasioned not by him with whom we have to do but by another is an effect of the Civil Law which doth often either null or revoke Acts though freely done if they that do them be of weak Judgement Seneca argues according to the Law of Nature when he tells us That whatsoever either Force or Fear or Necessity makes us to grant Lib. 4. cont 26. may be revoked if that Force or Necessity be imposed on us by him to whom the grant is made But what saith he is that to me what thou art compelled or necessitated to do if not by me Meam culpam oportet esse ut mea poena sit It is necessary that the Fault should be mine own
or against service and money so that they may answer one another as it is usually said Par pari datum hostimentum est opera pro pecunia To give like for like is to even the scales But this may be done diverse wayes for either service may counterballance the bare use of money in which case the principal stock whether preserved or lost is entirely his gain or loss that owns it or the work or service may counterballance the whole stock of money in which case he that doth the work is partaker of the whole stock In the former of these cases the work is set against not the stock but the danger of losing it or the gains that probably might be expected from it In the latter case the price of the labour is added unto the stock of money and he that performs it shall have a share in the stock equivalent to it But that either of the parties associated should share in the profit and yet be indemnified in case of loss is preternatural to societies yet such an Agreement there may be without injury As when there is a mixt contract partly by the society and partly for ensurance wherein such an equality may be observed as that he that assumes to make good the loss shall receive a greater proportion of the gain than otherwise he should have had But that any man should bear the loss that partakes not of the gain is inconsistent with a society whose principal end is common profit without which it cannot consist Now whereas the Lawyers say That where the proportions are not expresly named they are to be understood as if they were equal this holds true only where other things contributed are also equal XXV Of Naval Societies Where a Fleet is sent out by the joint Stock of a Society against Pyrates there the common Profit is the common Defence and sometimes the Prizes taken from the Enemy And then the Ships and all that are in the Ships are to be apprized and drawn into one gross summ out of which all charges and damages are to be deducted and born by the Owners of the Ships and Goods according to the parts they have in that summ and among those charges that of the wounded is to be reckoned And what we have hitherto said we judge to be most agreeable to the Law of Nature XXVI The Law of Nations takes no notice of Inequalities if consented unto Neither do the Voluntary Laws of Nations alter any thing of it except only in this That where the Contributions are unequal yet consented unto if no lye be in the case nor any thing concealed which should have been declared in all external Actions they shall be held as equal So that as by the Civil Law before that Constitution made by Dioclesian no action would be admitted of in a Court against such an Inequality so now by those that are consociated by the sole Law of Nations no exaction or constraint can be admitted for that cause Of this opinion was Pomponius That naturally in buying and selling it was lawful for one man to circumvent another where the word Licitum is not the same with Fas but it was so permitted And how this is said to be Natural that there was no Remedy provided against it for him that was willing to justifie him by his Agreement In which sense that is termed Natural in this and some other places which is every where customarily received In which sense St. Paul saith that some men are naturally vain 1 Cor. 11.14.13.1 and that it is against nature that a man should nourish his hair when it was only against Custome and that not of all but of those Nations wherein he had lived So the same Apostle speaking not in his own but in the person of the Romans with whom he converst saith Eph. 2.3 That they were by Nature the Sons of wrath so that Nature is nothing but Custome or that which hath been of long continuance In which sense Galen is to be understood 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where he saith That Custome is an acquired or adventitious Nature So likewise Thucydides Humana natura Legum victrix Humane Nature cannot be bound up by any Laws So the Grecians called both Vertues and Vices 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when by long Custome they are made natural unto us Now how great the advantage of such a Law if introduced would be to the General Peace is evident for it would prevent infinite contests which would arise concerning the uncertain prizes of Commodities which could not possibly be determined or avoided where there was no common Judge if every man might break off from his agreement upon pretence of such an inequality Haec est Emptionis venditionis substantia say the Roman Emperours calling a perpetual Custome by the name of Substance This is the perpetual manner of buying and selling the buyer beating the price as low as he can and the seller drawing up the buyer as high as he can till at length they agree in an equal and just value And Seneca respecting this very Custome saith What matter is it what any thing cost if the buyer and seller are agreed about the price He owes nothing to the seller that gets a good bargain And much after the same Copy writes Andronicus Rhodius That which by the mutual consent of the Contractors is gained is neither unjust nor should it be amended For the Laws do indulge a licence in these things And he that writes the Life of Isidore calls the selling of any thing at too dear a rate or the buying of any thing at too cheap a rate An Injustice tolerated by the Law Harum rerum licentiam Lex dedit saith Andronicus Rhodius The Law gives a Licence in these things But yet such a permission it is as will at length undermine and easily pervert Justice CHAP. XIII Concerning Oaths I. The great Authority given unto Oaths by the Heathens II. Great deliberation required in him that would take an Oath III. Oaths oblige in that sense which he to whom they are made is thought to understand them IV. An Oath procured by Fraud when binding V. The words of an Oath not to be wrested beyond their ordinary sense VI. An Oath binds not to things unlawful VII Nor to things that impede a greater moral good VIII Nor to things impossible IX What if the Impossibility be but for some certain time X. To be sworn by the Name of God and in what sense XI By other things in respect to God XII It is an Oath though it be sworn by False Gods XIII The effects of an Oath whence ariseth a twofold obligation one at the time of the taking of it and another after This explained XIV When by an Oath a Right is gained to God and Man and when to God only XV. The opinion That an Oath given to a Pyrate or a Tyrant binds not before God refuted XVI Whether an
void Now these things do naturally attend any Oath whereby we may easily judge of the Oaths of Kings and of Foreigners one to the other when the Act is not subject to the Laws or Customs of the place XX. How far the Prince's power prevails over his Subjects Oaths Now let us see what power our Superiors namely Kings Princes Masters and Husbands have in things that concern them in their respective Rights over their several Relations And first we must know That the Acts of our Superiors cannot make an Oath that is truly obligatory void so that it ought not to be fulfilled For this would be repugnant both to Natural and Divine Right but because all our Actions are not fully in our own power but so as they have some dependance on our Superiors therefore we grant that our Superiors have a twofold power over us concerning that which is sworn the one directed upon the person swearing the other upon the person to whom he swears The act of our Superiours may restrain the person swearing either before he swears making such an Oath void so far as the Right of an Inferior is subject to the power of his Superior or after he hath sworn by forbidding the performance of it For an Inferior as such could not bind himself without the approbation of his Superiour beyond which he had no power And after this manner by the Jewish Law the Husband had power to null the Vow of his Wife so had the Father the Vow of his Children so long as they were under the power of his government Seneca starts this question What if there should be a Law enacted that no man should do that which I have promised my friend to do for him Which he thus resolves Eadem lex me defendit quae vetat The same Law defends me that forbids me There are also some mixt acts between both as when the Superior doth appoint that his Inferior shall bind himself by Oath in this or that case namely through fear or want of judgment but with this limitation that the Oath shall bind if his Superiour shall approve thereof And upon this foundation are built all dispensations and absolutions from Oaths which Princes in former times did exercise by themselves cap. 35. as Suetonius testifies in the Reign of Tiberius and Vasquius records to have been long used in Spain which power they now remit that it may be with more piety executed unto the Ecclesiastical jurisdiction The power to absolve from Oaths in whom anciently So the act of a Superiour may be directed against the person to whom it is sworn either by taking away that Right which by that Oath he hath gained or if as yet he hath no Right by forbidding him from claiming any Right by vertue of that Oath And this he may do two ways either by way of punishment or for a more publick good by vertue of his Soveraign power And from hence we may learn what power Princes have over their Subjects Oaths where he that swears and he to whom it is sworn are of several Nations But he that upon his Oath hath promised any thing to a Nocent person as to a Thief or to a Pirate as such cannot by way of punishment take away from him that Right he hath given him For then the words of his promise or of his Oath should have no effect at all which inconvenience is to be avoided For the like cause the Right of that which is promised cannot be compensated with the Right of that which was before controverted in case the agreement were made after that Controversie began Yet may an humane Law remove that impediment which it had put in acts of some certain kind in case an Oath either of what kind soever or in some certain form be added As the Roman Laws have done in such impediments as respect not the publick directly but the private benefit of him that swears which if it may be done the act sworn shall stand in force in the same manner as naturally it would if such an humane Law were not either in obliging hi◠faith only or in giving also a Right to another according to the diverse natures of acts which we have already elsewhere handled XXI What manner of Oath Christ forbad And here by the way we must observe that what is said in the Precepts of Christ and by St. James concerning our not swearing at all doth not properly belong to assertory Oaths whereof we have several examples in St. Paul but unto such as are promissory for a time to come James 5.12 Rom. 1.9.9.1 2 Cor. 1.23.11.31 Phil. 1.8 1 Thes 11.9 1 Tim. 11.7 which is uncertain And this is evident by the opposition in the very words of Christ Ye have heard it said to them of Old Thou shalt not forswear but thou shalt pay thy vows unto the Lord. But I say unto you swear not at all And by the reason that is added by St. James That ye be not found to be deceivers For so the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sounds among the Greeks as will appear by Job 34.30 and Mat. 24.57 The same may easily be evinced by our Saviours subsequent words Let your speech be Yea yea Nay nay which St. James thus expounds Let your yea be yea and your nay be nay which is a plain Figure which the Rhethoricians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The former yea signifying the promise made the latter yea the fulfilling of that promise For this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. yea is an Adverb of yielding granting or promising and is exprest by Amen Apoc. 1.7 The Roman Lawyers exprest it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Quidni which is an affirming or an assenting to that which is asked of us It is used for the fulfilling of a promise by St. Paul 2 Cor. 1.20 Where he saith that all the promises of God in Christ are yea and Amen Hence ariseth that old Heb. Adage An honest mans yea is yea and his no is no But on the contrary he whose words and deeds do not accord is by them said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes off and sometimes on as 2 Cor. 1.18 19. 2 Cor. 1.18 19. That is their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their yea is no and their no is yea the meaning whereof is that they are inconstant unsetled always changing So St. Paul himself expounds it for when they charged him with levity he excuseth himself saying that his speech to them was not yea and no but as to himself it was always yea Festus among the various significations of the word Naucum writes thus Some there are that think that it is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so signifies a wavering man Now if 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and no signifies lightness or inconstancy it will follow that yea yea and no no signifies stayedness or constancy So
on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
distinction to be observed where there is any probable reason for giving or otherwise alienating what is the peoples But in case the King shall by any Contract go about to alienate any part of his Kingdom or of the Royal Patrimony beyond what is permitted unto him such a Contract shall be of no force as being made of that which was not his to dispose of As much may be said of such Kingdoms as are limited and restrained if the people have exempted any either matter or kind of acts from the power of their King For to make such acts valid the consent of the people or their Representatives is necessarily required as we have already shewed when we discourst of alienations Now these distinctions being observed it is no difficult matter to judge Whether the exceptions of Kings who refuse to pay their Predecessors Debts whose Heirs they are not be just or unjust whereof we may read many examples in Bodine XIII Of the Grants of Kings which are revocable and which not Neither is that which some affirm to be admitted without a distinction namely that the benefits of Princes which are freely and liberally granted may at any time be revoked For some benefits a King may give out of what is his own and which were it not for this clause at the prayer or request of the Grant might well pass for a perfect Donative Now these cannot be revoked unless from Subjects by way of punishment or for publick good for which also satisfaction must be given out of the publick stock if possible But other benefits there are which only take away the binding power of the Law without any Contract and these are revocable For as a Law universally taken away may always be universally restored so also being particularly taken away it may be particularly restored For no Right is here acquired against the Law-maker XIV Whether the right King be bound by Contracts of an Usurper But by such Contracts as are made by Usurpers or such as without any just title invade a Kingdom neither the people nor their lawful Prince are obliged For such have no right at all to bind them Yet even these also shall be bound by those Contracts so far as they are enriched by those Contracts CHAP. XV. Of Leagues and Sponsions I. Publick Agreements what they are II. Divided into Leagues Sponsions and other Conventions III. How these differ and how far Sponsions oblige IV. Menippus his division of Leagues rejected V. Leagues divided into such as oblige unto things agreeable to the Law of Nature and from whence this ariseth VI. And unto things thereunto added which are either equal VII Or such as are unequal which again are divided VIII Leagues made between those of a different Religion by the Law of Nature are lawful IX Nor are they universally forbidden by the Hebrew Law X. Nor by the Christian Law XI Cautions concerning such Leagues XII All Christians are obliged to enter into a League against such as are enemies to Christianity XIII If diverse of our Confederates are at War which we ought to assist explained by a distinction XIV Whether a League may be understood to be renewed tacitely XV. Whether the breach by one Party do free the other from being obliged XVI How far the Sponsors stand obliged in case what they undertake for be refused XVII Whether a Sponsion being known but not refused do oblige by silence This explained by a distinction I. Publick Conventions what they are ALL agreements are by Vlpian divided into such as are publick or private The publick he expounds not as some think by a Definition but by Examples The First whereof is that whereupon a Peace is concluded The Second is that whereon the Generals on both sides do agree among themselves about some things touching the War By Publick Agreements he understands those which cannot be made but by such as have the Right of Empire either Greater or Lesser whereby it is distinguished not only from the Contracts of private persons but from the Contracts which Kings make in their private affairs although even from these private Contracts a War is sometimes occasioned but oftner from the publick Wherefore since we have sufficiently treated of Conventions in general we will add thereunto some things concerning this kind which of all others is the most excellent II. How divided Now these publick Conventions which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we may divide into Leagues Sponsions and other Pactions III. The difference between them The difference between Leagues and Sponsions we may learn out of the ninth Book of Livy where he tells us That Leagues are such agreements as are made by the Command of the Supreme power and whereby the whole Nation is made liable to the wrath of God if they infringe it And this among the Romans was wont to be performed by Heraulds in the presence of the King of the Heraulds But a Sponsion is where the Generals having no order from the Supreme Power to conclude any thing about such a matter do yet promise and undertake something concerning it In Salust we read thus The Senate as it is very fit have decreed That without their and the peoples Command no League shall be made Lib. 24. Hieronymus King of Syracuse as Livy relates contracted friendship with Hannibal but he sent afterwards to Carthage to make of that Alliance a perfect League Wherefore that of Seneca the Father where he saith Cont. l. 4. c. 29. In that the Emperour struck up a League the Roman people may be said to strike it up and to be concluded by it must be referred to those ancient Consuls or Generals who had received special Order from the Senate and People of Rome so to do But in Monarchical Estates See Book 3. ch 20. §. 2. the sole power of making Leagues is in the King According to that of Euripides Adrastum hunc opus Jurare Namque is jus habet regni potens Vt civitatem foedere obstringat suo This Adrastus ought to swear I say Who being their Soveraign the whole City may Oblige this League for ever to obey Now as Inferiour Magistrates cannot oblige the people so neither can the minor part of the people oblige the whole But let us here enquire how far forth they are bound who not having the peoples Right shall yet undertake that which the people only have a Right to do Some may think that if the Sponsors use their utmost endeavour to effect that which they have undertaken they have preserved their Faith according to what we have already said Vid. sup ch 11. §. 22. of Promises made for the fact of a third person But the nature of the business concerning which this Contract is made requires a stricter obligation For no man in Contracts will either give or promise any thing of his own but expects that something shall be performed unto him in lieu thereof Whence it is that by
the Civil Law which will not admit of one mans Promise for another mans fault such a Promise shall amount unto a Confirmation of the things agreed on and shall bind the Promiser to make good what the Prince or People refuse IV. Menippus his division of Leagues rejected Menippus King Antiochus his Embassadour to the Romans as it is recorded by Livy and Diodorus Siculus being led more by his own use and custome than by the rules of Art divided Leagues into three sorts The first whereof is When the Conquerour gives Laws to the Conquered where it is in the Victors power to determine what the Conquered shall have and how far he shall be punished The Second is When both parties being of equal power and success in the War do agree in an amicable League on equal conditions And then by agreement things taken are on either side to be restored And in case any man hath been disturb'd in his possessions during the War the difference is to be composed either according to ancient Right or according to the mutual Profit and Convenience of both parties The Third is When they that never were Enemies do enter into a Social League between themselves without either giving or receiving Laws on either side V. Leagues divided into those that bind to things agreeable to the Law of Nature But we are to distinguish somewhat more accurately As in the first place we may say that some Leagues require such things only as are congruous to the Law of Nature others add something thereunto Leagues of the former kind are usually made not only between Enemies at the end of a War but of old were both often made and in some sort necessary amongst those who before had never contracted for any thing The ground whereof was That that Principle of Natural Right which instructed us that Nature had prudently linked together all mankind in a kind of strict Alliance And therefore for one man to hurt another was impiety was as of old before the flood so again some times after by an universal corruption of manners so obliterated that it was held lawful to rob and spoil Foreigners yea though there were no Wars proclaimed No sin to rob strangers So Caesar of the Germans Latrocinia nullam habent Infamiam quae extra fines cujusque civitatis fiunt Look what Spoil and Robberies they committed without the bounds of their City De moribus Ger. lib. 14. In the Life of Minus they held as no dishonour The like Testimony Tacitus gives of them with whom agrees that of Plutarch touching the Spaniards Who saith he till that time thought it an honourable imployment to spoil and plunder out of their own Territories Nay the Jews themselves refused to make satisfaction for damages done unless to a Jew or a Confederate whence that question in Homer An Praedones estis Are ye Forragers i. e. such as live by the spoils of strangers was an innocent and friendly Interrogation For saith the Scholiast upon that place To prey upon strangers was then held an honourable imployment The very same we find in Thucydides with this addition For this kind of life was not at that time infamous but commendable No more was Pyracy upon the Seas until the Reign of Tarquine as Justin testifies And this the Roman Laws seem to justifie For if any thing had been taken by the Romans from any Nation with whom they had no commerce hospitality nor League of Amity for these were not accounted enemies it was held by them as lawful prize So if a Roman Citizen were found among them or brought unto them they were immediately made Slaves And in this case did their Law of Postliminy take place The same and no better quarter had those people being taken by the Romans Thus we read that the Corcyrenses before the Peloponnesian War were no Enemies to the Athenians but neither had they Peace with them nor any Truce as by the Oration of the Corinthians in Thucydides appears So Salust speaks concerning Bocchus Nobis nec pace nec bello cognitus That he was altogether unknown to the Romans by either Peace or War And to rob and spoil such was in the opinion of Aristotle laudable And is so far warrantable by the Roman Laws Hostis taken anciently for a Foreigner that the word Hostis which signifies an Enemy did in the old Latin dialect signifie nothing but a Stranger or Foreigner Now under this kind of League I comprehend those also whereby Freedome of Commerce and the reception of strangers are on both sides assented unto as being agreeable to the Law of Nature whereof we have treated above And thus we shall find these Leagues distinguisht by Livy in that Oration which Arco makes to the Achaians Lib. 41. where he insists not upon any League of Society but upon that of Commerce which consisted in giving and reciving that from each other which was due by the Law of Nature namely That the Achaians would forbear to receive into their protection the fugitive Servants of the Macedonians Now all such Conventions the Greeks do strictly include under the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Peace whereunto they oppose the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is a League made by Sacrifices VI. And into those that add unto it which are either things equal Those Agreements which contain those additaments to those of Natural Right are either equal or unequal equal when the Articles are the same on both sides Whereunto Virgil alludes Nec mihi Regna peto paribus sub Legibus ambas Invictas gentes Aeterna in Foedera mittam Empire I claim not but with equal Right Both Nations will with lasting Leagues unite And these the Greeks sometimes term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leagues simply sometimes Leagues upon equal conditions as we read in Appian and Xenophon But those that are made upon unequal conditions they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because made by Sacrifices And as they respect the weaker party 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because imposed upon them upon hard conditions which as Demosthenes adviseth are carefully to be avoided by all such as love their liberty because they approach too near to subjection Now both these kinds of Leagues are made either for Peace or for Society sake Those equal Leagues of Peace are usually made for the restitution of Prisoners or Goods taken in War or for mutual security whereof we shall speak more at large anon when we have occasion to speak of the effects and consequences of War Those equal Leagues of Society respect either mutual commerce or an equal participating of the charge of a War or some other matters Concerning Commerce equal Covenants may be various as namely That no Customs be paid on either side which we find to be one of the Articles agreed on in that ancient League made between the Romans and the Carthaginians except only what was given to the Notary and to the Cryer Or
it manifestly turned to the publick detriment or when it was done by the accident of a new case or when a new case ariseth which had it been foreseen would have been provided against For that every Contract though sworn is understood with this reserved condition if matters continue in the same state but not if they be changed Which that wise Queen grounded upon the Authority of Seneca A wise man changeth not his resolution all things continuing as they were at the time when he made it nor can he be said to Repent because at that time and as the case then stood no better counsel could be followed than was then resolved on And when the Hans-towns complained against her to the Emperour That their priviledges were broken in England and their customes much enhansed She Answered That those Priviledges were by Authority of Parliament abrogated as being not convenient for the times being granted when Traffick and Merchandizes lay dead among the English And for her Customes she said that the Common-wealth could not subsist if no other Customes should now be paid by the Hans-towns than what were paid three hundred years before And much to this purpose is that of Seneca Being invited to a Feast I 'll go because I have promised although it be cold I will arise to a Wedding because I have promised although I am not sufficiently refresht with sleep but not if I am Fevorish although I have promised Nor will I stand bound with thee for any thing that is uncertain though thou biddest me in case thou art indebted to the Exchequer For in all these Promises there are some tacite exceptions to be understood namely if I can or if I ought so to do if things be then as they now are Effice ut idem status sit cum exigitur qui fuit cum promitterem Make the case the same when thou exactest my Promise as it was when I made it If any new thing intervene it is not levity or inconstancy in me if I fail What wonder is it if a man change his mind and counsel when his condition is changed Eadem mihi omnia praesta idem sum Make all things the same and then I also am the same XXVIII Other signs whereby we may guess that such a case ought to be exempted There are also as we have said other signs of the Will whereby we may conjecture That that case was to have been exempted Among which there are none more convincing than words spoken or recited in some place not where they do directly contradict each other which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereof we made mention above But when as it were unexpectedly from the very event of things they seem to clash one against another which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 XXIX What Rules should then guide our conjectures Now when such a case happens which part of the Writing ought to prevail with us we may be instructed by some rules that Cicero * De Invent. 2. Verina 2. hath left us out of some ancient and approved Authors which are by no means to be slighted yet in mine opinion are they not digested into a right order And therefore I think fit to place them thus That that which is permitted do always give place to that which is enjoyned For as Quintilian saith Semper potentior lex est qua vetat quà m quae permittit That Law that commands is always stronger than that which permits Because he that permits any thing is conceived to permit it unless somewhat else do hinder than what is then treated of and therefore Plus valet sanctio quam permissio A Decree or Sanction is more prevalent than a Toleration Secondly That what is to be done at a time prefixt be always preferred before what may be done at any time From whence it follows That for the most part that which forbids is to be preferred before that which enjoyns Because what prohibits binds us at all times but so doth not that which commands unless it be either when the time is exprest or that the command comprehends under it some tacite prohibition Again that in such agreements as are in their qualities before-named equal That should be preferred which is most proper and comes nearest to the matter in question For Particulars are always more efficacious than Generals And in things prohibited that those which have a penalty affixt be preferred before those that have none and those that have a greater penalty before those that have a lesser As also that those be preferred that have causes affixt either more honest or more profitable And in the last place that that which was spoken last be more valid than that which was spoken before Of what hath been already said this also must be here repeated That look what Agreements are sworn unto must be understood in the most usual Propriety of Speech And that all secret reservations and restrictions more than the very nature of the thing doth necessarily require be altogether disowned Wherefore also in case an Agreement sworn shall in effect clash with that which is not sworn that which was bound by an Oath shall be preferred XXX In a case that is dubious a Writing is not required to compleat the Contract It is also usually questioned Whether in a doubtful case a Contract ought to be accounted perfect and compleat before the Writings are signed and delivered For this Muraena alledgeth against the Agreement made between Sylla and Mithridates To me it is very plain That unless it be otherwise agreed on the Writings stand but as the lasting Monument of the Contract and not as any part of the substance of it If otherwise it must be so exprest as in that made with Nabis Where it was provided That those conditions should be of force From that day whereon they should be published by Nabis XXXI The Contracts of Kings not always to be interpreted by the Roman Laws But I cannot admit of their opinion who hold That the Contracts of Kings and Free States are to be interpreted as far as is possible by the Roman Laws unless it appear That among those people the Civil Law in such things as concern the Right of Nations hath ever been received for the Law of Nations which is not rashly to be presumed XXXII Whether his words that offers or his that accepts are most binding As to that Question moved by Plutarch in his Symposiacks namely Whether the words of him that proposeth conditions or of him that accepts of them are most binding It appears to me That seeing it is he that accepts that promiseth they are his words if absolute and in themselves that gives form and being to the Contract For if he regards the words of him that offers conditions affirmatively he shall be thought to repeat those very words in his Promise according to the Nature of Relatives But certain it is That before the conditions be accepted even he
his gains but if the thing taken away do perish then the value of it not to the highest rate nor to the lowest but moderated Among these we may also rank such as defraud Princes of their lawful Customs and Contributions In like manner are they bound to reparation that have wronged others by either their unjust sentence or unjust accusation or by their false Testimony XVII In him that by fear or fraud causeth a Promise As also he that shall either by fraud force or unjust fear urge a Contract or a Promise from any man is bound to make reparation to the full For hereby he robs the man he deals with of a double Right First By the nature of Contracts he had this Right That he ought not to be deceived And then by the natural liberty that every man should have He ought not to be enforced or unjustly affrighted And among these we may likewise range those that will not perform what by their Office they are bound to do without Bribes XVIII What if the fear be naturally just But he that hath given just cause why he ought to be by force or fear compelled hath reason to blame himself For an involuntary act arising from a voluntary is naturally reckoned for a voluntary XIX What if the fear be held by the Law of Nations for just But as by the consent of Nations all Wars made and denounced by the Supream power on both sides are reputed just as to to the external effects whereof we shall speak more anon so is the fear of such a War so far reputed just That whatsoever is obtained thereby cannot be required back In which sense that distinction of Cicero's may be admitted which he makes between an Enemy with whom we enjoy by the consent of Nations many common Rights and a Thief or Pirate For if these extort any thing from us by fear we may require it back unless we are bound by Oath not to do it But so we cannot do from an Enemy Wherefore what Polybius writes concerning the Second Punick War namely that the Carthaginians had just cause to make it because the Romans by denouncing War against them whilst they were engaged in another War against their Seditious Mercenaries had enforced them from the Island of Sardinia and a great sum of money hath indeed some shew of Equity but is not agreeable with the Common Right of Nations as we shall elsewhere prove XX. How far the Civil power is bound by Damages done by their Subjects Kings and Magistrates are obliged to reparation if they do not make use of such remedies against Thieves and Pirates to suppress them as they may and ought to do For which neglect the Scyrians were condemned by the Amphictyones I remember that this case was once proposed amongst us when our Estates having granted Letters of Mart against our Enemies some of those to whom these Letters were granted abusing themselves and us had robbed our friends and leaving our Country betook themselves to the Seas and though recalled would not return whence arose this question Whether our States were bound to repair the damages by reason of Letters of Mart granted them either because they made use of such wicked instruments or because they did not require from them sufficient caution that they should not transgress their Commissions Whereunto I gave this answer That they were obliged to no more than to punish them being found or to deliver them up And besides to take care that reparation should be made out of the Goods of the Delinquents A judged case For that the States were not the causes of the depredations nor did they participate of them that they had forbidden them by severe Laws to wrong their friends but to require Caution from them they were not by any Law obliged seeing that they might empower all their Subjects without any Codicils to make what spoil they could of whatsoever was their Enemies as had been anciently done Neither was this permission the true cause of the wrongs done unto their friends seeing that private men might arm their Ships and put out to Sea even without permission Neither could they foresee that these men would prove wicked Nor could they altogether avoid the making use of wicked men for then it was not possible for them to raise an Army Neither if their Souldiers either by Sea or Land did injure their friends contrary to the Command of the Supream Magistrate were they obliged to reparation as might easily be proved by the Testimonies of France and England Yet in a League between Francis de Valois King of France and Henry the Eighth of England Herbert's Henry the 8. page 54. it was agreed the better to prevent Depredations by Sea that no Merchant of either Nation should depart out of their Ports without giving Caution to their respective Admirals that no wrong or molestation should be done by Sea to either of their Subjects But that any man should be bound to repair the Damages which his Servants shall without his fault and against his command do unto others belongs not to the Law of Nations by which this cause ought properly to be judged but to the Civil Law and yet not in the general but as it is introduced for some particular reasons against Mariners and some others And thus hath this case been determined by the Judges of the Supreme Assembly against certain Pomeranians and that according to Precedents of things of the like nature two ages before XXI The owner of a Ship or Beast that hurts his Neighbour not bound by the Law of Nature This also is worthy our observation that it proceeds from the Civil Law and not from the Law of Nature That we deliver up our Beast or Bond-slaves to punishment which have endamaged our Neighbour For the owner of them being innocent is naturally bound to nothing as neither is he whose Ship without his fault falls foul and hurts another though by the Law of diverse Nations as well as ours such Damages are usually divided between both because it is very difficult to be proved XXII The Damage against a mans honour how to be tepaired But the wounds we receive in our Honour or Fame as by Stripes Reproaches Curses and such like must have their proper cures And in these no less than in Theft and other Crimes the hainousness of the fact is discerned by the effect For as in those our reparation consists in the punishment of the Thief so in this The Damage we sustain is repaired by confession of the fault and by exhibiting all due Honour to him who is wronged and the publick Testimony given both of his innocency and our own repentance and such like means Although the offender in this kind may be punished in his purse if the injured person desire it because money is the Common Standard whereby all things tending to profit are measured CHAP. XVIII Of the Rights of Embassages I. There are some
Embassador admittance and he may command him to depart his Kingdom if he behave himself seditiously but that none should be without cause denyed Now causes there may be First from him that sends Secondly from him that is sent and Thirdly from the matter of Embassage As to the first we read that Pericles dismist Melesippus the Lacedaemonian Embassador beyond the Territories of Athens because he came from an Armed Enemy And the Roman Senate denyed admission to the Carthaginian Embassador Vid. Camden An. 1571. Quaest 4. Livy l. 41. Zonaras because they had an Army in the heart of Italy So did the Achaians to the Embassadors of Perseus because he attempted a War against the Romans The like did Justinian to the Embassadors of Totilas and the Goths in Vrbin to the messengers of Belisarius And the Embassadors of the Scythians because they were a people notoriously wicked were in all places repulsed as Polybius testifies As concerning the second cause i. e. from the person sent an example we have in Theodorus the Atheist to whom Lysimachus refused to give Audience though he came as an Embassador from King Ptolomy The like hath been done to others for no other cause but personal hatred The third is when the ground or reason of him that sends is suspected to move Sedition as was that of Rabshakeh rejected by Hezekiah Rabshakeh's Case 2 Kings 18. and the like Or when the matter or form is not well suited to the digniâ—y of the person with whom we treat or not so well timed So the Romans forbad the Aetolians to send out any Embassadors without their Generals permission And Perseus was forbidden from sending any Embassadors to Rome but only to Licinius so they commanded the Embassadors of Jugurtha to depart out of Italy within ten dayes unless they came to deliver their King and Kingdom into the power of the Romans So the Emperour Charles the Fifth commanded the Embassadors sent to denounce War against him from France Venice and Florence to be conducted to a place thirty miles distant from his Court as Guicciardine records it Lib. 18. And thus may those Ordinary Embassadors which are constantly resident in most Courts be worthily rejected as unnecessary and a new upstart custome whereof former Ages were wholly ignorant IV. Against such Embassadors as raise Sedition our defence is lawful but not their punishment Concerning the latter priviledge of Embassadors namely That they should not be molested the question is more arduous and knotty and by the best Wits of this Age variously handled In the stating whereof they have respect First To the persons Secondly To their Attendants Thirdly To their Goods As to their Persons some think that they are to be protected against all unjust force only esteeming their priviledges to be understood of Common Right Others are of opinion that the persons of Emperours are not for every cause to be molested but only when they themselves do violate the Law of Nations which opens a door so wide that all delinquencies are punishable in Emperours except such as are committed against the Civil Law For in those committed against the Law of Nations are contained even those that are committed against the Law of Nature Others do yet restrain this force to those who shall be found to act any thing against the State of the Common-wealth or against the honour and dignity of the person to whom they are sent which some think to be of dangerous consequence and therefore would have complaint made to him that sent them and the Embassadors sent home to be by him punished Others there are who think it fit in this case to appeal to other Kings and Free States that are not concerned desiring their advice therein which indeed may stand with prudence but not to be imposed upon us as a Law The Arguments which every one of these do bring to strengthen their several opinions do conclude nothing certainly Because this Right is not grounded upon reasons that are certain as the Law of Nature is but it receives its bounds from the consent of Nations Now the Nations may either altogether provide for the safety of Embassadors or with some certain exceptions For advantages may by either of these arise to the Common-wealth By this latter the punishment inflicted upon such as notoriously offend deters others and secures the peace of that Nation By the former the profit ariseth to the State by Embassies which are the more easily and willingly undertaken when the persons sent are encouraged thereunto as knowing that the greatest care that can be is taken for their security we are therefore to observe how far forth the Nations did agree in this point which cannot be evinced by examples alone For of these we have enough extant on either side we must therefore have recourse herein as well to the Judgement of the Wisest Men as to our own most probable conjectures For the Judgement of the Wisest Men are guided by two notable precedents one out of Livy the other out of Salust That out of Livy by the Embassadors of Tarquine who pretended only to treat with the Senate about some of Tarquine's Goods but were found conspiring with the Citizens to betray the City And when it was moved in the Senate What should be done with them It was at length resolved on That though they deserved to be proceeded against as enemies yet valuit Jus Gentium The Law of Nations must be preserved Whence we may conclude That by the Law of Nations Protection is due unto Embassadors though they should be found plotting against the State they are sent unto That in Salust doth more immediately respect the Concomitants of Embassadors than Embassadors themselves and yet by an Argument drawn from that which is less credible to that which is more may serve to prove what the Law of Nations allows to Embassadors in the case aforesaid Salust speaking of Bomilcar who came to Rome as an Assistant in the Embassage but was found stirring up the Citizens to Rebellion saith thus Fit reus magis ex aequo bonoque quam ex jure Gentium He was made Guilty rather by the Rules of Equity than by the Law of Nations Where by aequum bonum is meant the meer Law of Nature which requires that he that doth evil should suffer for it being found But the Law of Nations excepts from this General Rule Embassadors and such as like them come upon the security of the Publick Faith Wherefore it is contrary to the Interest of the Law of Nations that Embassadors should be held guilty as many other things are which are permitted by the Law of Nature Our conjectures also may be thus guided Most probable it is that the priviledges granted to Embassadors are somewhat more than what is due unto others by common right But in case they are no longer to be secured than whilst they live regularly what have they more than others Besides the benefit that
and receiving according to the nature of contracts for he that steals or robs me of what is mine doth for that very thing bind himself to undergo such a punishment And a little after under the name of contracts the Antients comprehended not only such as were made by mutual Agreements but such also as were forbidden by the Laws under such a penalty III. In whom this right of Punishing is naturally But yet to whom this right of punishing offenders is due is not by nature it self determined this natural reason dictates that a Malefactor may be punished but not who should punish him this only nature prompts us to that it is most convenient that it should be done by one that is his superiour neither doth she demonstrate this to be altogether necessary unless by superiour we understand him that is innocent and that we detrude the nocent beneath the degrees of men and rank them with beasts which are subject unto men Thus Democritus ascribes it to nature that the better should govern the worse and Aristotle observes that in that order that nature hath placed every thing that which is worser was had for the use and service of that which was better which also holds true as well in artificial things as in natural The consequence whereof is that he that is nocent ought not to be punished by him that is at least equally nocent for he that sits as Judge to punish Malefactors should himself be free not only from that particular crime but from all others that may render him obnoxious to the same punishment whence ariseth that of our Saviour to the Pharisees Let him amongst you that is without sin Jos 8.7 cast the first stone at her which he therefore spake because at that time the manners of the Jews were extremely corrupted insomuch that they who would seem to be the greatest Saints were observed to wallow like swine in Adulteries and such like grievous Sins as may appear by that of the Apostle to the Romans Rom 2.22 Wherefore thou art inexcusable O man whoever thou art that judgest for in that thou judgest another thou condemnest thy self seeing thou that judgest doest the same things whereunto appertaineth that of Seneca non potest ullam authoritatem habere sententia ubi qui damnandus est damnat that sentence can never carry any face of authority where he that condemneth another may as justly be condemned himself for as St. Ambrose saith in the Apology of David he that goes about to judge another ought first to judge himself and not rashly to condemn the errours and oversights of other men when he daily commits far greater himself It is very good advice that St. Ambrose gives Judicet ille de alterius errore Grat. cap. 3. q. 7. qui non habet in seipso quod condemnet c Let him be Judge of the errours of others that hatb in himself nothing condemnable Let him be Judge that is not guilty of the same crimes that he deemes worthy to be condemned in another lest whilst he judgeth another he pronounceth sentence against himself Let us in the first place then consider with our selves numquid ipsi tale commisimus whether we our selves have not committed the like and the regard that every man hath to his own safety will make him more moderate in passing judgment on others IV. To what end punishments are ordained Another Question here ariseth concerning the end we propose to our selves in punishing for what we have hitherto said amounts to no more than this that the guilty person hath no wrong done him in case he be punished But from hence it doth not necessarily follow that he must be punished nor is it true for both God and man we see do pardon many men many offences and are highly commended for it for as Plato first and after him Seneca well observed There is no wise man that punisheth an offender simply because he hath offended but because he should not offend again for what is once done cannot be recalled but what is to come may be prevented therefore all punishments relate to the time to come Non irascitur sed cavet He that punisheth is not angry but provident Diodorus in Thucydides speaking to the Athenians concerning the Mityleneans saith That they had indeed done very unjustly but not so as that they should be destroyed unless it should be found expedient But these things are true in punishments amongst men because we are all link'd together in Bonds of consanguinity so that we should not hurt one another unless it be for a more general good For if one hand hurt another saith Cassiodore that which is hurt will not rise up in revenge against the other no more should one man revenge himself upon another unless it be for the prevention of some greater evil They therefore that punish Malefactors with Stripes Banishment or Fines do it not simply out of revenge but in pursuance of some future good that may thereby arise But it is otherwise in God unto whom Plato doth misapply those Sentences For the actions of God may be grounded upon his very Right of Sovereignty especially when they are applyed to some special sins of men although they propose to themselves no end beyond themselves and thus do some of the Hebrews expound that of Solomon The Lord hath made all things for themselves Prov. 16.4 even the wicked for the day of wrath that is Even when he punisheth the wicked he doth it for no other end than to shew that he can punish them thus he is said to raise up Pharoah Exod. 14.4 Rom. 9.17 that in him his power may be known And although we do admit of the more vulgar Interpretation it comes to the same sense namely That God is said to make all things for himself that is By the right of that supereminent freedom and perfection that is in himself without seeking or regaâ—â—ing any thing without himself as he is said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of himself because not born of any Certainly the Holy Scriptures do testifie that God doth sometimes inflict punishment upon some notorious Delinquents for no other reason but to shew his power As when he is said to rejoyce at their calamity and to mock when their fear cometh Deut. 28 63. Isai 1.24 Secondly When in revenge for our foâ—mer provocations he is said to harden the heart and to blind the eyes and to stop the ears as Isai 6.10 and thirdly When in that last and great Gaol-Delivery he adjudgeth them to eternal torments after which there is no place or hopes of amendment yea and some punishments even in this life that are inconspicuous such as are obduration and excecation do clearly evince the truth of that which we object against Plato But when one man punisheth another man whom Nature hath made his Equal he ought to propose some end unto hmself And this is it that the School-men say That the
even these internal acts as they have their influence upon the external acts of the Body have their estimation not properly of their own but as those external acts deserve more or less punishment according to these internal ones of the mind XIX Such as are inevitable to humane nature Those acts that are inevitable to humane nature are not to be punished by humane Laws For though nothing be imputed to us as a sin but what hath the concurrence of the will and is done freely yet to abstain altogether and at all times from sin and over all temptations still to emerge Conquerours is above the strength and condition of humane Nature whence it is that all sorts and Sects of men have esteemed it natural for man to sin As among Philosophers Sopater Hierocles Seneca amongst Jews Philo amongst Historians Thucydides and amongst Christians very many have left us their testimony upon Record Sen. de ira c. 14. There is no man to be found that can in all things justifie himself saith Seneca A little before he had said c. 9. Amongst others the calamities that attend Mortals this is one namely The darknest of the understanding which betrays us not only to a necessity of erring but to the love of errours c. 17. And presently after Quis ille est qui se profitetur omnibus Legibus innocentem who is he that can plead his innocency to all the Laws and in another place De Clem. l. 1. c. 8. peccavimus omnes c. we have all sinned some more some less some intentionally others haply by the perswasion of others or violently carried away by the lewdness of another some of us through levity not adhereing to good counsel and some upon the suddain approach of dangers lose our innocency though unwillingly and not without some reluctancy neither do we sin only for the present but we will continue sinning to our death and although a man do purge his conscience never so well so that nothing doth either disturb or deceive him yet is it but by sinning that we arrive at this innocency Thus likewise Belisarius in Procopius not at all to sin falls not under the power of humane nature neither can our weakness bear it Si puniendus est Goth. 3. cuique pravum maleficumque ingenium est poena neminem excipiet if saith Seneca every man that is of a depraved nature were to be necessarily punisht no man would go unpunished To the same purpose is that of Sopater He that will so punish as if he would have men altogether without fault must needs exceed the natural bounds of correction Of the same mind was Diodorus Siculus Strictly to observe whatever is done amiss and severely to punish every offence is a wrong done to humane frailty and to forget the weakness that is common to all mankind For as the same Sopater saith wisely Our lesser and as it were daily slips of infirmity are rather to be connived at than punished And indeed it may well be doubted whether such as these may properly be called sins because though we have freedom as to this or that sin to do it or not to do it yet not at all to sin in respect of our natural frailty is impossible Every Law then as Plutarch in Solon saith should command things possible if it intends to punish a few profitably and not a multitude unprofitably Some sins there are that are inevitable not simply to mankind in general but to this or that particular person or to this or that particular time or age by reason of such or such a temperament of the body strongly inclining the mind as Seneca observes Morum varietates mixtura elementorum facit the variety that there is in mens manners is occasioned by the various mixture of the elements or by some overgrown customs which notwithstanding are usually punished not so much for themselves as for some former errours as either for neglecting the remedies whereby they might have been prevented or because those diseases of the mind were voluntarily contracted Lot's daughters made him drunk and then lay with him Grat. Can. 15. Q. 1. c. inebriaverunt but he knew it not whereupon St. Aug. passeth this sentence on him That he deserved to be punished not for his incest but for his drunkenness XX. Nor those that are neither directly nor indirectly destructive to humane Society Thirdly Neither are those sins to be punished by humane Laws which are neither directly nor indirectly against humane Society or against any other man because there can be no reason assigned why such offences should not be referred to the supreme Tribunal of God himself who is most wise to understand most righteous to perpend and weigh and most mighty to revenge and punish them wherefore all humane punishments as to such sins are plainly unprofitable and therefore vain Hence notwithstanding we are to except such punishments as tend only to reformation although haply it may no way concern others neither are those sins to be punished by humane Laws which are opposite to such vertues as the Laws do not compel but perswade only and exhort us unto as those of mercy liberality gratitude c. Seneca discussing this question whether the sin of ingratitude be punishable resolves it thus Cum res honestissima sit referre gratiam De Benef. lib. 3. c. 6 7. desinit honesta esse si necessaria sit since to be thankful is a thing eminently honest it would cease to be so were it necessary which he thus explains in the subsequent words For saith he if to be unthankful were punishable no man would more commend a thankful man than he doth that man that restores what was deposited with him in trust or that man that pays his just debts neither whereof can with honesty be detained and therefore are not courtesies but debts which whoso willingly pays we do not so properly commend as discharge him Non erat res gloriosa gratum esse Lib. 4. Cont. 23. nisi ingratum fuisse tutum fit it were not so lovely so grateful a thing to be thankful if to be unthankful were not safe He that provides alimony for his wife and children or that feeds and pays his servants for their labour deserves not thereby the honour of being reputed liberal or charitable because haply he doth it for fear of the Laws which have power to force him to do it But him that relieves the Poor cloaths the naked redeems the captive we commonly magnifie and extol for his charity Contr. l. 4. Contr. 23. Controv. 24. because these acts depend wholly upon the freedom of the will and if he did them not no Law can punish him So Seneca the father Thou wilt say unto me we are no where commanded to do this whereunto he answereth Hujus rei aestimatio immensa est itaque nulla vindicta est because the esteem of a grateful man is so precious for as
Subjects XVI Or haply when the life of an innocent person or somewhat that is equal unto it cannot otherwise be preserved XVII That it is lawfull by false speaking to deceive an enemy by whom asserted XVIII This not to be extended to words promissory XIX Nor to that which we affirm upon Oath XX. But it is more generous and more agreeable to our Christian simplicity to abstain from falsehood even to our enemies XXI That it is not lawfull for us to compel another to do that which is lawfull for us to do but not for him XXII It may notwithstanding be lawfull for us to make use of his service that freely offers it I. The order and method of this Book WHo may make War and for what Causes we have seen It follows that we enquire what in War may be lawfull how far forth and by what means we may prosecute it which we are to inspect either simply or in reference to some antecedent promise or agreement Simply in it self and that first according to what is justifiable by the Law of Nature and then according to what is agreeable to the Law of Nations And in the first place let us see what is lawfull by the Law of Nature II. Things necessary to the End lawful in War First then as we have often said before in Morals those things that conduce to the End do receive their true intrinsick value from the End wherefore whatsoever is necessary to the End that is to receive or recover his own Right taking the word Necessary not physically but morally that we are understood to have a Right unto A Right I say strictly so called as namely it signifies a Power or Faculty of doing in the sole respect of Society wherefore if I cannot otherwise preserve my life it is lawfull for me by what force soever to repell him that would take it away though haply he that attempts it be without fault Because this Right of defending mine own life doth not properly arise from another mans sin but from the Right that Nature hath granted unto me to defend my self whereby also I am empowered to take away from another that whereby my life will otherwise be certainly endangered without any respect at all had to his sin and to possess my self of it not as its right owner for this is not indulged unto me for that end See second Book Chap. 2. §. 10. but to keep it so long as is necessary for mine own security So by the Law of Nature I have a Right to take away from another that which he hath formerly taken from me or if that cannot easily be done yet to take that which is equivalent unto it as also for the recovery of my just debt and from hence will also ensue Propriety or Dominion because that breach that is made in Equality cannot otherwise be repaired So where a punishment is justly due there all manner of Force and Violence is Lawful and Just if that punishment cannot be had without it And so whatsoever is a part of that punishment as the destruction of Corn Cattel the firing of Houses Towns Cities and the like are also just so long as they exceed not in measure but keep proportion with the offence III. A Right in War may arise from some subsequent Cause in its prosecution Secondly we must know that what is our Right is not to be adjudged by the first cause of the War only but from other emergent causes which arise in the prosecution of it so we have seen in our Courts of Justice after a Cause hath been well argued a new Right hath often arose to a Party which was not before thought on Thus they that shall associate with him that invades me be they either Associates or Subjects do give me a Right to defend my self against them So also they that shall joyn themselves with others in a War that is unjust especially if they may or ought to know it to be so do oblige themselves to repair the damage and to pay the charges of the War because they have caused it by their own default So likewise they that rashly thrust themselves into a War undertaken without any probable Reason deserve to be punished according to the injustice of their actions For so long doth Plato approve of the War Donec hi qui sontes sunt cogantur insontibus male affectis poenas dare Vntil the guilty party be compelled to give satisfaction to those who being innocent have been injured by them IV. Some things may be gained without injury indirectly which purposely was not lawfull We must observe also in the third place that whilst we execute the Right that Nature give us either to defend our selves or to recover our own many things do indirectly and beyond our purpose accrew unto us whereunto we could otherwise have no Right at all How this Rule holds in cases of our own necessary defence we have elsewhere shewn So in the recovery of what is our own if we cannot get just as much as was ours we may take more but on condition that we restore the surplusage to the Right Owner So a Ship wherein there are many Pyrats or an House wherein are many Thieves may be battered down or sunk though it be to the endangering of many Infants Women and such like innocent persons that were accidentally mixt amongst them But this must ever be observed that Non semper omni ex parte licitum est quod juri strictè sumpto congruit We are not always to extend our Right to its extremity for not every thing that is strictly due is always and altogether lawfull For sometimes our compassion towards the Innocent and our Charity towards our Neighbours will not suffer us to exercise our full Right wherefore in such cases we ought to be circumspect and as much as in us lies to foresee and to avoid all such contingencies which may fall out beyond that which we principally aim at unless the Good that we aim at be far greater than the Evil that we fear or unless where the Good and Evil being equal our hopes of obtaining the Good be greater than our fears of the Evil can be whereof prudence is the best Judge yet so that whensoever the case shall happen to be doubtfull we always incline to that part which provideth rather for anothers safety than our own as being much the safer and if an errour yet it falls on the right hand Mat. 13.29 Let the tares grow up with the wheat saith our best Master lest while ye pluck up them ye pull up the wheat also Multos occidere indiscretos incendii ruinae potentia est To destroy whole multitudes saith Seneca without distinction argues a power proper to the sudden irruption of fire or the fall of some great building rather than the rage of a man And how much sorrow and penitence such a rash act cost the Emperour Theodosius upon the admonition
have Soveraign Power and how this is to be understood V. And that the War be solemnly denounced VI. Whereunto what by the Law of Nature and what properly by the Law of Nations is required is handled distinctly VII The denunciation of War is sometimes conditional sometimes simple and absolute VIII In denunciations what belongs to the Civil Law and not to the Law of Nations IX War being denounced against a Prince is denounced also against his Subjects and Associates so far forth as they follow him X. But not as by themselves considered this illustrated by examples XI The reason why denunciation is requisite to some effects of War XII That these effects are not to be found in other Wars XIII Whether a War may be made as soon as it is denounced XIV Whether against him that hath violated the Rights of Embassadors a War may be made though not denounced I. A Solemn War ought to be between two diverse Nations WE have already said * Lib. 1. cap. 3. sect 4. That according to the Opinion of the best Authors a War is oft-times said to be Just not from the Cause that excites it nor from those Heroick Actions that are done in it but from some peculiar effects of Right which one War hath more than another But what manner of War this is is best understood by the definition which the Romans give of an enemy Hostes sunt qui nobis aut quibus nos publicè bellum decernimus They are Enemies saith Pomponius against whom we publickly denounce War or who do the like against us the rest are but Pyrats and Robbers to the very same purpose speaks Vlpian Wherefore as he there adds He that is taken by Robbers is not a slave to those that take him neither need he recover his freedom by the Right of Postliminy L. Postliminium sect 2. D. de Cap. L. si quis ingenuam as one that returns out of Captivity doth A Piratis aut latronibus captus liber permanet saith Paulus the Lawyer He that is taken prisoner by a Robber or a Pyrat loseth not thereby the priviledge of a Citizen as he doth that is taken prisoner in War by the Germans or by the Parthians Whereunto we may add that of Vlpian In Civil Dissentions although the Common-Wealth be dangerously wounded yet doth not the Contest extend to the ruine of the State they that betake themselves to either part are not such mortal Enemies as they are to whom the Right of captivating men and of Postliminy belong And therefore though they be taken and sold yet whensoever they shall recover their liberty they shall not need to petition their Prince to restore them to their Freedom because they never lost it by a just Captivity This only is to be observed That under the Example of the People of Rome whosoever in any City or Common-wealth hath the Supreme Power hath a Right to make a Just War according to that of Cicero Philip. 4. Ille hostis est qui habet Rempublicam Curiam Aerarium c. He is accounted an Enemy who enjoys a Common-Wealth a Court a Treasury the Consent and Concord of Citizens with some regard had if the matter require it to Peace and Leagues The word Hostis signifies properly an Equal which Pyrats and Robbers cannot be to Soveraign Princes and therefore they cannot be said to make a Just War II. A distinction between a Nation doing things unjustly and Pyrats and Robbers Neither doth a Common-wealth cease to be a Common-wealth because some Acts of Injustice are publickly and generally committed by them nor are Robbers or Pyrats to be deemed a Civil Society because haply they do observe some kind of equality between themselves without which no Society can possibly long subsist For these latter are not as Procopius speaks * Vand. 2. Turba hominum Lege congregata sed injustitiae causa in unum coacta A company of men associated under a Law but forced to unite to defend themselves against the Law whereas the former though guilty sometimes of some injustice and so not without some faults yet do they associate for the defence of their own Right and do Right unto Foreigners though haply not in all things according to the Law of Nature which in many places is almost obliterated yet certainly according to those Covenants and Agreements which they have made with every Nation or according to the Customs by them used Lib. 1. This the Scholiast upon Thucydides observes That whilst the Grecians preached Pyracy as a lawfull Calling they at the same time abstained from Murther from robbing by night and from driving away the Oxen that ploughed the earth Lib. 2. And Strabo records it of divers other Nations who though they lived by Piracy yet as soon as they returned home would send to the right Owners that if they would they might redeem their Goods at indifferent prizes And hitherto we may also refer that of Homer Ipsi etiam rapti avidi qui aliena pererrant Littora concessu Superûm si praeda reperta est Navibus impletis abeunt vela retorquent Quippe Deos metuunt memores fandi atque nefandi Greedy of Gain to foreign Coasts they stray If by their starry Guides they find a prey With sails retort they go their Ships full fraught Fearing the Gods minding what 's good what 's nought The Ancient Normans accounted Piracy an honourable Trade to live by And Plutarch notes of the Scipii that they were extremely corrupt yet a Commonwealth although they robbed even such Merchants as came in a friendly way to traffick with them but in Morals the principal part gives form to the whole And as Cicero well observed De finibus 5. Because it contains the most parts and spreads farthest therefore it gives denomination to the whole To the same sense is that also of Galen In temperaments the denomination is always taken from that which is the greatest portion Wherefore Cicero is very crude in his expression in saying That when the King is unjust the Nobles unjust and the generality of the People so it is not so properly a corrupt Commonwealth as none at all which sentence of Cicero's St. Augustine thus corrects Neither can I therefore say truly that that people are no people De Civit. Dei lib. 19. c. 24. or that Commonwealth no Commonwealth so long as there remains any society of a rational multitude unanimously congregated for the mutual defence of such things as they love A Body though diseased yet remains a Body and a City is still a City so long as it hath Laws and executes judgments and hath other means necessary for both natives and strangers to preserve or recover their just Rights That which Dion Chrysostome observes comes much nearer to truth who tells us That the Law especially that of Nations is in a City as the Soul in an humane Body which being taken away it remains no longer
no other Herald to proclaim it than nature it self And herein is that of Dion Chrysostome verified That many wars are made which were never denounced Neither is there any thing else that Livy blames in Menippus King Antiochus's General but that he had slain certain Romans before any war was denounced or any hostile act had proceeded so far as either to the drawing of a weapon or the effusion of bloud in any place intimating thereby That iâ—â—ither of these cases that fact of Menippus had been justifiable Neither doth the Law of â—ature necessarily require So may the right Owner apprehend his own without declaring his intention But to recover a Debt or one thing for another a predemand is necessary That the right Owner being to apprehend what is his own should first denounce war or declare his intention before he do it But so often as one thing is to be taken in lieu of another or the Goods of a Debtor attached for a Debt there a predemand is necessary much more is it necessary when the Goods of Subjects are to be seized for the Debt of their Prince that thereby it may appear That we had no other means or way left but by war to recover either our own or what is due unto us For the right that we have in the things so seized is no primary but a surrogated right as we have elsewhere declared The like may be said of him who hath the supreme Authority who cannot justly be invaded for either the debts or the faults of his Subjects until satisfaction hath been demanded which if denied renders the Prince also culpable either by participating with them in the wrong done or at least by omitting what he ought to do 2. What in these cases Nature requires not yet may be done honestly and laudably Vid. lib. 2. c. 23. sect 7. according to those Rules which we have elsewhere given Nay farther even where the Law of Nature doth not require any such demand to be made yet may it be done both honestly and honourably to the end that men may be more careful to abstain from giving offence and that those already given may be expiated by confession and satisfaction according to those Rules which I have already prescribed for the prevention of those mischiefs which do usually accompany War whereunto even that also appertains Extrema primo nemo tentavit loco No man at first unto extremes will flye When all Israel were ready to fall on the Gibeonites to revenge the outrage done to the Levites Wife the Elders restrained them urging Deut. 20.11 Jos Ant. l. 5. 2. That it was not fit that they who were forbidden by the Law rashâ—y to make war upon Strangers though justly provoked till by their Ambassadours they had sought all means to induce them to do them justice should unadvisedly fall upon their Brethren until they had first heard their grievances and denied satisfaction And as to that Command which God gave unto the Israelites Deut. 20.2 namely That before they fought against any City they should offer them peace It was peculiarly given to that Nation and therefore not at all to be confounded with the Law of Nations Nor was that peace which was so offered an absolute peace but on this Condition That they would submit and pay tribute When Cyrus had march'd with his Army into Armenia Xenoph. Hist l. 2. he forbore all hostile acts till he had sent Ambassadours to the King to require of him the Tribute and Succours by the League due esteeming it as Xenophon speaks more friendly thus to proceed than to act farther until he had declared the ground of the War Nevertheless by the Law of Nations as to those peculiar effects of a just War a publick denunciation is in all cases requisite if not on both sides yet on one VII War denounced sometimes conditionally and sometimes absolutely This denunciation of War is sometimes conditional and sometimes absolute Conditional when restitution or satisfaction is demanded at the same time when the War is denounced Now the Fecial Law whereby the Heralds are guided do under the Notion of things demanded comprehend not only a vindication of what is due by the right of dominion but the persecution also of whatsoever is due either upon any civil account or by reason of any crime committed as Servius rightly expounds it Hence it is that in all such Conditional Denunciations we read either of some things to be restored of some damages to be repaired or some Offenders to be delivered up unless they from whom such Offenders are demanded shall chuse rather to punish them themselves as we have elsewhere said And that this solemn Demand of things was called Clarigationem or a proclaiming of War Pliny testifies in these words Et Legati cùm ad Hostes clarigatum mitterentur id est Lib. 22.2 res raptas clare repetitum unus utique Verbenarius vocabatur And Ambassadours when sent to their enemies to demand with a loud voice restitution of things taken away by force one of them was called Verbenarius an Herald because he was always crowned with Vervin And in another place speaking of Vervin he saith That it is that Herb which Ambassadours and Heralds do usually carry with them to their enemies as we have elsewhere shewed Lib. 25. c. 9. One example of this conditional denouncing of War we have in Livy in these words Which injuries Lib. 8. Ann. l. 1. unless redressed by those that occasioneâ— them they are resolved with all their power to revenge Another we have in Tacitus Ni supplicium in malos praesumant usurum promiscua Caede Vnless punishment be inflicted on the Malefactors they will seek their revenge by War And of this kind of proclaiming War we have an ancient Precedent in Euripides where Theseus gives this Charge to his Ambassadours Vicina Theseus qui tenet Regni sola Humare poscit mortuos quod si datur Sit amica faciet Gens Erechtidûm tibi Haec si probantur tam refer retro pedem Sin nemo paret verba sint haec altera Jam mox ut Arma pubis expectent meae All which Papinius rehearsing the same Story abreviates in this Verse Graves for the slain or War ' gainst Thebes proclaim A pure or absolute denunciation is that which is especially called an Indiction or Proclamation The Greeks calls this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to declare Reprizes lawful which is either when the other Party hath already begun the War which is that which in Isidore is called a War to repel the force of an invading Enemy or when he himself hath committed that which deserves to be punished Sometimes after a denunciation that is conditional there follows another that is pure and absolute though not necessarily yet redundantly Hence ariseth that usual Form Testor hunc Populum injustum esse neque jus reddere I declare this Nation to be unjust neither will they do
said of particular persons may also be said of Cities and people That if they were free they may recover their freedom If the power of their Friends and Associates be able by foâ—ce of Aâ—ms to release them from the power of their enemies But if the very Body of the people that constituted that City be dissolved I believe that they that succeed are not to be accounted the same people neither are those things that formerly belonged to that City to be restored unto them by this Right of Postliminy according to the Right of Nations because a Nation like a Ship by the dissolution of its parts doth absolutely perish for that its whole Nature consists in the perpetual Conjunction of all its Mâ—mbers Wherefore it was not the same City of Saguntum though the place where it formerly stood were restored unto the ancient Inhabitants eight years after its dissolution Neither was Thebes the same City after that Alexander had sold the Citizens for Slaves whence it follows That what the Thessalians owed unto the Thebans before such dissolution could not justly be claimed by those Thebans by Postliminy and that for a double reason First Because they were then a new people secondly Because Alexander whilst he was Lord over them had a power to alienate that Right and accordingly had done it and lastly A Debt is not to be reckoned among those things which return by Postliminy Not much unlike to what we have said concerning Cities is that which the ancient Roman Laws concluded of Marriages namely That they were by captivity dissolved neither could they be restored by postliminy but must be redintigrated by the first consent of both parties But it is otherwise among Christians witness that of Pope Leo unto Nicetas Bishop of Aquileia concerning such Marriages namely That as in Slaves or Fields or even in Houses and Possessions the right and title of them is preserved for those that are Captives in case they shall return out of captivity so also in Wedlock if either party be married to another let them be reformed See what Hincmar hath written to this purpose in his Tract concerning the Divorce of Lotharius and Terberga to the thirteenth Interrogatory and the Answer of Pope Stephen in the second Tome and nineteenth Chapter of the Councils of France X. To those that return what Rights arise from the Civil Law By what hath been already said it is no hard matter to understand what manner of right by the Law of Nations Postliminy gives to free men Moreover this very same right may by the Civil Law so far as it belongs to things agitated within the City be both restrained by adding some exceptions or conditions and also enlarged unto other profits and advantages as occasion serves As by the Roman Civil Law Fugitives are exempted out of the number of those that were capable of this right so were also the Sons of a Family over whom the Father was conceived not to have lost that Paternal power and authority which was peculiar to the Romans and that for this reason as Paulus observes Because to Roman Parents their Military Discipline was ever dearer than their own Children whereunto agrees that which Cicero records of Manlius That he strictly upheld the Discipline of the Roman Empire though to his own grief that so he might the better provide for the safety of the City wherein was also bound up his own which made him prefer the Sovereign Right of Majesty which was then in himself before the bonds of Nature or the tenderness of a Father towards his own Son Again some diminution of this Right of Postliminy is that which was ordained first by the Athenians and afterwards by the Romans namely Vt qui redemptus est ab hostibus Redemptori serviat donec pretium reddiderit That he that was redeemed should serve his Redeemer until he should have repaid his ransome But this was made in favour to the poor Captives lest if there should be no provision made for the recovery of the money so paid many Prisoners should have been left in perpetual slavery among their enemies But yet even this very slavery was many ways mitigated by the Roman Laws and at length by the last Law of Justinian it was limited to five years service neither could the money paid for his redemption be recoverable after the death of the party redeemed So also by any Contract of Marriage between the person redeemed and the person redeeming it was adjudged to be forgiven So if it were a Woman that was redeemed if the Redeemer did prostitute her Body the ransome was lost There were many other Laws made among the Romans in favour to those that would redeem Prisoners and to punish their Kinsmen for neglecting them Again this Right of Postliminy was by the Civil Law much enlarged in that not only those Rights in Postliminy which are allowed of by the Law of Nations are granted unto him that so returns but generally all things and all Rights are as intirely his as if he had never been within the power of the enemy And this was also the Attick Law for as we read in Dion Prusaeensis A certain man pretending to be the Son of Callias who had been taken Prisoner in the Slaughter at Acanthus and as he said been kept as a Prisoner in Thrace when he had made his escape to Athens claimed by Postliminy his inheritance from those that then had the possession thereof after his Father we do not read that any thing was pleaded against his Right only it came in issue Whether he were the Son of Callias or not The same Authour likewise relates That the Messenians after long captivity at length returning received both their liberty and Country Yea and those things which either by usucapion or redemption seemed to be taken away out of the Goods or through disuse to be deserted are all of them recovered by a Rescissory Action For under the Edict of making restitution to Ancestors he also who is under the power of Enemies is comprehended Nay farther the Cornelian Law provides for the Heirs of such as dye in captivity and conserves all their Goods as lawfully as if he that returned not were at that very time when he was taken dead Now were it not for these Civil Laws without doubt as soon as any man were taken Prisoner by the enemy his Goods would presently be theirs that had them in possession because Qui apud hostes est pro nullo habetur He that is under the enemies power is held for none And then if he that was taken should return he should receive nothing but such things as by the Law of Nations were due unto him by Postliminy But that the Goods of a Captive were confiscate and brought into the Treasury in case he had no Heir was a Law peculiar to the Romans only Hitherto we have treated of things that return now we shall speak of such things as are received by
though unjust ceaseth not to be Cities page 451 A Citizen taken by Pyrates loseth not his freedom 456. and a Servant how they differ 486. of Rome all that live within the Pale of the Empire page 450 The Citizens Right over their Magistrates page 201 A City how distinguished from a Company of Pyrates 451 452. War worse than Tyranny page 65 Civil Power wherein it consists 37. Empire gained by War and its Rights 485. Law may bind or restrain from that which Nature leaves free 81. Laws some unjust page 127 Claim from a Foreigner everlasting 182 183. whose best his that gives the matter or form page 139 Clergy-men exempted from War page 67 Clemency most becoming a Prince 382 383. to be used to the Conquered the Conquerour secured 527 528. seen in the mitigation as well as in the remission of punishment 382. of the Pharisees in punishing 371. Motives thereunto 417 418. Emperors famous for Clemency 501. a great Ornament to Princes where their injuries are done against themselves page 417 418 554 c. Colledges spared by the Philistines page 506 Colonies have the same Right their Mother Cities have 143. not governed absolutely by their Mother Cities 49. yet by the same Laws and Magistrates 142 143. usually the rise of Free States page 143 144 A Command given for one thing whether fulfilled by another more profitably 197. without it he that kills an Enemy to what obliged page 535 536 Commanders inferiour in some Cases may make War 35. how far they may bind their Souldiers page 564 Command in War may be either general or special page 535 Commands of a General must not be disputed but obeyed page 197 Commands distinguish'd from Counsels Pref. xviii Of Commerce the most ancient way is by exchange 157. the liberty and for it Tolls due page 84 85. A Commonwealth is such though corrupt page 451 The Common safety sometimes preferred before our own page 73 Community their Rights over their Members page 3 A Community may arise by giving a new Form to the matter of another 139. or through commixture according to the proportion of either ibid. Communication of crimes between Kings and Subjects page 398 399 Communication of things useful to others and not damageable to our selves charitable page 82 To Compel stands not with the nature of an Inferior 46. being compelled they that war against us to be spared page 498 499 Compensation due to Subjects whose Goods are alienated for publick Peace page 545 546 Concubinary Marriages see Marriages Concubinate a kind of natural Marriage page 112 A Concubine who and how allowed page 113 Conditions who offers or who accepts which makes the Contract page 199 Conditions hard imposed on the weaker Party or the Conquered page 183 This Condition things standing as they do when tacitely understood page 197 Conditions not fulfilled on the one side dischargeth the Promiser page 541 Conditions when severe seldom lasting page 529 A Confederate on unequal Conditions may obtain the Supreme Power page 48 Confederates their differences how determined page 49 50 Confederates engaged in several Wars and both demanding War which we should assist page 187 Confederates one may be assisted against the other unless expresly forbid by former agreement 424. in their behalf War lawful in a just cause ibid. the ancienter to be preferred caeteris paribus unless in one case page 412 413 Confederates not to be assisted in cases desperate and why page 424 Conjectures useful when words admit of divers senses page 191 Conjectures restraining promises how guided page 193 Conjectures from the matter effects things conjoyned page 191 192 The Conquerour may give the Conquered what he pleaseth 486. as some part of the Government or some liberty or freedom in Religion page 527 The Conquerour may be secured by imposing Garrisons or Tribute on the Conquered page 526 That the Conquerour may live securely is the end of War and how this may be done without cruelty page 524 525 Who is Conquerour in single Combats page 552 To the Conquerour to submit better than desolation page 119 The Conquerour may impose what Laws he pleaseth 485. crowned in the pavilion of the Conquered 479. more safe in a free than compulsory obedience page 527 Conscience not bound by some Laws page 482 483 Consecrated Plate sold for what uses page 216 217 Consent gives signification to words not things page 438 Constantine page 28 A Contract made with a Servant binds his Master 147. binds according to Laws of the City wherein it is made but not if made on the Sea or in a Desart page 152 Contracts permutatory that separate the parts have three heads Do ut des c. 157. mixt principally or by accession and such as introduce Communion page 158 159 In Contracts a just proportion is to be observed 160. all errors and mistakes are to be rectified ibid. The Contracter with another for what is his own releaseth his Right page 98 The Contracts of Kings and Free States not always interpreted according to the Roman Laws page 199 Of a Contract the writing is but a lasting Monument and no part ibid. A Contract in doubt is perfect before the delivery of the writing when otherwise it must be so exprest ibid. Controversies in War not determinable by the Civil Law 122. concerning things taken in War shall be judged in any Nation at Peace where they were taken according to their customs page 488 Corn and other things useful in War may be sold to the Enemy to pay Souldiers to destroy them were madness page 513 514 Of Corn sown on anothers Lands by mistake whose the Fruits are page 139 Conventions publick how and when divided page 180 In Councils General a King newly made shall have the same place as the People being free had before page 143 Counsel of wise men how prevailing page 25 The thoughts of Counter-passion restrains from wrong doing page 371 Counter-passion hath no equality if the nocent and innocent suffer alike page 381 Crassus how he gained his great wealth page 535 Creatures naturally wild are for the most part theirs that take them page 469 Cruelty arising from vain fear page 72 Cruelty of the Roman Generals in their triumphs page 461 Custome and opportunity two great incentives to sin unless curb'd by severe Laws page 381 Customes Civil sometimes mistaken for the Law of Nature page 385 Cyrus his judgment concerning the two coats page 4 D. IN Dearth Strangers forbid Corn yet Sojourners not then to be expelled page 86. Death voluntary in defence of Chastity commended 219. in some cases allowed by the Jews as the Death of Sampson Saul c. ibid. termed a dismission ibid. the only good thing to an incorrigible offender page 272 273 Day until such in a Truce whether exclusively or inclusively to be understood 562. in a League how understood page 191 Damage à demendo i. e. from taking away a mans Right 200. which may be either in the things or profits
be understood as he understands to whom they are made 167. called Vows and why 172. the end of all controversies 172. bind not to things unlawful 169. of Joshua to the Gibeonites binding page 168 169 The Oath of the Roman Souldiers to the Carthaginians binding page 167 168 An Oath not to be too far wrested 169. not to do good not binding 170. nor that which hinders a greater good ibid. cannot bind to impossibilities ibid. by false Gods binding 171. by the Creatures obligeth ibid. by fraud or fear extorted must be fulfilled for the Oaths sake 172. made to Pyrates or Tyrants obligeth ibid. In Oaths two things requisite truth in words and fidelity in Actions ibid. Over Subjects Oaths what power Superiours have page 173 By a false Oath to deceive an Enemy Perjury page 172 Of Oaths some are assertory and some promissory 174. the latter forbidden by James and Christ ibid. Oaths should except necessity and coaction page 123 From Oaths Absolutions from whence originally page 174 By Oaths promises made in what Cases oblige not page 173 An honest mans word as good as his Oath page 175 An Oath to perform Kings bound before God page 177 Oaths from Subjects should have this restriction Vnless my King command the contrary ibid. Philip of Macedon regardless of Oaths page 537 The form of Oath Military page 28 To Obey more natural to some Nations than to command page 38 Obedience in what cases necessary 55 56 429. sometimes unlawful 427. especially in things forbidden by God or Nature 53. to commands unjust not due 429. readily yielded by him that understands the reason of the Law page 430 Obedience to Parents and sustentation to Children due 123. yet it cannot justify our disobedience to God page 427 Obligation restraining the faculty or the exercise of such an Act only the difference page 47 48 Obligation feudal see Feudal Obligations arising from Dominion page 146 Obligation internal gives no Right to another page 151 Obligations all require deliberation page 551 552 Obligations by Officers with our default from what Law it proceeds page 203 204 Kings may be obliged either naturally or civilly page 177 Obliged we may be by another page 154 Oblige we may whatsoever we have absolute power in or over page 400 401 Obliged we may be to a Pirate or Robber being not terrâ—fyed by fear page 538 Obliged a man may be by some Delinquency page 200 Obliged none can be to an unjust War page 187 Of Obligations without compulsion examples page 211 Obstinacy to defend our own Party no just cause to kill an Enemy page 508 By the Occasion of anothers sin a man may suffer though that sin be not the cause of his suffering page 401 Occupancy its Rights where things are in common page 78 By Occupancy what every one had was the first rise of propriety page 79 Of Occupancy after the communion was lost page 80 Occupancy presumeth things bounded 81. as Lands by Mannors or Farms ibid. of Empire and of Dominion as distinguished from Empire 88. it was the original way to gain Dominion by the Law of Nations page 135 What if it be of a place pre Occupied by men irrational page 407 The Occupant in doubtful Cases hath the best Title page 414 To the ancient Occupants Lands restored by the Emperour Honorius after three hundred Years page 492 Odious Promises which 192. how to be interpreted ibid. Leagues and Promises if in doubt are personal page 194 Offenders being demanded when to be delivered page 395 396 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 439. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 407 Old men in War to be spared page 505 None the same Old as young page 141 Opinions concerning God being not easily demonstrable no cause of War page 389 Our Opinions especially concerning Religion hardly parted from page 391 Oppression notorious a just cause of War if without danger to our selves page 424 Oppression of Subjects where greater than the miseries of War War may be made against Tyrants page 421 Ordinance of God in what sense Kingly Power is said page 18 Order what among Equals or Associates page 114 The Order of such as have equal shares in things ibid. In what Order they are bound to restore who have occasioned damages page 201 202 The Order of Christian Kings sitting in Council page 114 Original acquisition page 88 Owner right not known none bound to restore page 149 The right Owner transferring his Interest is a sure Title page 151 Oxen forbidden to be eaten to be spared in War page 514 P. PApinianus put to death for not defending Parricide page 428 Parents to be nourished 123. though severe to be obeyed 57. to be reverenced as Gods Pref. vii honour and obedience due to them 123. differing in their Commands whether to obey 103. their Right to sell or pawn their Children what 104. their Right over their Children different according to their several Ages and Conditions 103 104 their Estates due to their Children by a twofold right 124. whether they owe any part of their goods to their Children by the Law of Nature 122. their love to their Children more natural than their Childrens to them 123. their power to punish as well as to govern their Children 104. never exheredate their Children until they prove incorrigible 416 417. Their Marriage with their Children unnatural page 107 Parliaments to what end called page 42 A Parly demanded and accepted renders both sides secure 569. during each may promote his own interest so that he hurt not the other ibid. under pretence of a Parly Bituitus was treacherously taken Captive by the Romans ibid. Parricides page 28 Particulars if they consent not not punishable for the whole page 399 Partition just where the Title is dubious and neither possest page 414 Passage denied may be by Armes forced page 83 Passage by Land or Sea common to all ibid. how Armies may pass safely without danger page 84 Passionate acts more pardonable than deliberate page 380 Pater Patratus what page 546 Patience commended by Christ's example 63. preferred before revenge 33. in bearing reproaches 21 22 23. in a Governour or in a State punishable page 393 Patrimony distinguisht from the profit of it page 120 Paul refused not a Guard of Souldiers page 20 Parents that receiveth to what bound page 160 Peace profitable to the Victor Vanquished and those of equal Power 572. once obtained to be religiously kept 571. its Articles how to be understood 546 547. all of them to be equally observed 549 572. when said to be broken 548. to be embraced though with loss 572. not to be patcht up but firmly made 547. being made all publick injuries though then unknown presumed to be remitted 547. to purchase from an Enemy too Potent no dishonour page 418 For Peace whether the Goods of the Crown be alienable 544. or the Goods of Subjects 545. the Empire or any part thereof ibid. Peace by whom it may be made 544. being made by
have Society naturally and why not seeing that Beasts with Beasts have the same And in another place he tells us That Nature hath instill'd into our minds the very seeds of Vertue This also M. Antoninus that Emperour who was so highly famed for his Philosophy thus testifies That we were born for Communion was long since apparent For Is it not plain saith he That Nature frames all things in order when we see the worser things made for the better and the better things one for another That therefore which Carneades affirms That every Creature is by Natural Instinct led to such things as are to it self only profitable if universally taken is not to be granted for some of the rest are content to abate somewhat of their own profit partly to their young ones and partly to others of their own kind The Proverb intimates as much when it saith Canis Caninam non est One Dog will not eat another And the Poet confirms it Tygers though fierce at Peace with Tygers are Juveral And every Beast will its own Kindred spare It was therefore Philo's advice Let men saith he Upon the Fifth Commandment learn Gratitude from Dumb Beasts The Dog will defend his Masters house that feeds him and oft-times will expose himself even to death for him upon the approach of any Danger that threatens him Is it not then the greatest of all shames that a Dog should be more thankful than a Man And that a Creature naturally Fierce and Ravenous should in Gratitude excell the Mildest and Meekest of all Creatures But if we scorn to learn our duty from Creatures Terrestrial let us yet observe the Nature of Birds those Aereal Travellers The Stork being Feeble through Age and not able to fly abroad rests in her Nest whilst her young ones travelling o're Sea and Land seek for Food for their aged Parents who being worn and spent with Age and Travel deservedly enjoy ease plenty of necessaries nay of delicates whereas their young ones comfort themselves with this That they have conscientiously performed that duty which Piety exacted from them together with an expectation of the like to be paid unto them hereafter when they also shall grow old and through age feeble Thus do they in due time discharge a necessary debt by restoring that to their Parents in their old Age which in their Infancy they received from them Now from whence think ye do they learn this duty of fostering their young but from Nature being in the same manner fostered themselves when they are young And how can they hear this saith Philo and not hide their heads for shame that take no care of their aged Parents but wilfully neglect them whom either alone or before all others they ought to sustain Especially considering that in so doing they cannot be said properly to give but only to repay what they owe them For Children have nothing of their own but what they derive from their Parents who either gave it them out of what was theirs or by some means or other enabled them to get it Whence this proceeds Now in Beasts this care of their young proceeds as I conceive from some Extrinsick Intelligent Principle Because as to other Acts not more difficult than these the same Intelligence doth not appear in them The like may be said of Infants In whom as Plutarch well observes there is a Natural Propensity to do good unto others even before they are capable of Instruction and whom Nature it self teacheth to be Compassionate Man only hath the faculty of Speech But in a man of perfect Age when knowingly he doth the same in like cases having withal an exceeding great desire after Society whereof he alone of all other Creatures hath the proper Organ I mean Speech In him I say it is fit that we should admit a Faculty of knowing and doing things according to some General Rules And of knowledge by General Rules whereunto whatsoever is agreeable is not so to all living creatures but peculiarly to mankind only Homo ad id natus est Lib. 9. bene ut aliis faciat c. Man saith M. Antoninus was born for this end to do good unto others And again Sooner may we find Bodies Terrestrial not tending to the Earth than a sound and perfect man not affecting the society of men For as he speaks in another place Quod ratione utitur necessario Coetum appetit Whatsoever hath the Faculty of Reason must necessarily affect Society To the same purpose is that also of Nicetas Coniates Lib. 10. Nature her self hath insculpt and ingenerated in us See Aug. de Doctr. Christ lib. 3. c. 14. a mind easily consenting and agreeing with those of our own kind Neither can I here omit that excellent saying of Seneca That thou maist understand how desiderable a thing of it self it is to have a thankful mind and how odious a thing Ingratitude is Know that there is nothing sooner dissolves and disjoints Humane Society than this Vice of Unthankfulness For wherein otherwise consists our security if not in those mutual good offices that we do one to another by which Commerce and Exchange of Courtesies only our lives are strongly guarded and fortified against all violent Incursions whatsoever Take us singly and what are we but a prey to all other creatures and as so many sacrifices to appease the hunger or rage of ravenous beasts No Blood so vile none so easily purchased as ours All other creatures are sufficiently guarded against all violence Whatsoever is born wild and unsociable comes into the world armed only man comes naked and infirm having neither Hoofs Horns Claws nor Teeth to make him to appear terrible to the rest only two things Nature hath given him whereby both to offend others and to defend himself namely Reason and Society By these he that being single is weakest of all becomes Lord and Master of all It is Society that gives him the dominion over all other creatures it is Society that transfers Empire from one Nation to another extending it self over the Seas also it is this that mitigates the violence of Diseases it is this that yields Comfort to old age this asswageth grief and pain this makes us strong valiant nay invincible For as much as we may lawfully crave its assistance even against Fortune her self Take away this and you break asunder that Unity that there is between mankind whereby our lives are sustained And it is certainly taken away if Ingratitude be not in it self odious Thus far Seneca Now this very conservation of Society Concerning the great care that Doves have over their young see Porphyâ—y de non esu l. 3. Society the foundation of Law 1. Of Nature strictly taken as it is agreeable to humane understanding though but crudely here exprest is the foundation of that which is properly called Right From whence ariseth our abstinence from that which is anothers and our