regarding the worthiness of the persons but the bare Right of him that ought to receive it This young Cyrus learnt of his Tutor in this case There were two boyes that had two Coats Aulus Gill. both of different Dimensions the bigger Boy had the lesser Coat and the lesser Boy had the bigger Coat which the bigger Boy took from him being fit for himself leaving him the lesser Coat which also was fit for him whereof Cyrus being made Judge Cyrus his mistake and regarding more what was fit and convenient than what was just and Right adjudged the greater Coat to the bigger Boy and the little Coat to the lesser Boy But his Tutor told him That he had done amiss For had he been to judge what was fittest he had done well But being to judge whose each Coat was he was to regard who had the best right to it he that by force took the great Coat away or be that made it Exod. 23.3 Levit. 19.15 or bought it This is it that Moses in his Law forbids saying Thou shalt not regard the Poor in judgment but shalt judge thy Neighbour with Righteousness Which cannot be done unless we do as Philo adviseth A personis litig antibus res abstrahere Consider the matter without regarding the parties contending IX Right as taken for a rule or Law defined There is also a Third signification of the word Jus or Right whch makes it Equivalent to the word Lex that is Law when taken in its largest sense that is to say as it is a rule to Moral Actions obliging us to do that which is right In which sense it was that Horace took it where he saith For fear of wrong strict Laws invented were So in another place Jura neget sibi data He may deny that Laws for him were made Which the Scholiast thus expounds He was a man that despised all Laws In which Definition we say first that it must oblige and herein it differs from Counsels and other prescriptions which though honest yet fall not under this Notion of Law And as for permission to speak properly it is not the Action of Law but the denyal or Restriction of that Action unless it be as it obligeth another not to give him to whom such permission is granted any lett or impediment Besides it must oblige us to that which is Right and not simply to what is just because Right in this sence doth not belong to Justice alone such I mean as we have heretofore explained but unto the matter of other Vertues For many things may be just according to the letter of the Law which notwithstanding are not Right Neither is it possible that any Lawgiver should foresee all the defects of his own Law So that that which being a greeable to the Law strictly taken may sâ—em just is not so safe a Rule to walk by as that which is just in this larger sense that is Righteous and honest An example whereof we have in that Law made by Zeleucus who ordained a punishment to be inflicted upon him who contrary to the advice of his Physician presumed to drink Wine And therefore that Right which this Rule guides us unto must needs be of a larger signification than that which is simply just Of this Right so taken the best partition is that of Aristotle's into that which is Natural and that which is Voluntary or as he there calls it Legitimate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the word Law being taken in the stricter sense which difference is acknowledged both by the Hebrews and the Grecians who when they would speak properly distinguish them by their proper names X. This Law of nature defined distinguisht from that which is not properly so That which we call natural Right or the Law of Nature is the dictate of Right reason shewing the Moral Malignity or the Moral Necessity that there is in any Act by either the Repugnancy or Congruity it hath to Rational Nature it self and consequently that such an Act is either commanded or forbidden by God who is the very Author of Nature Or as †Tit. omnem virum bonum esse liberum Philo describes it Right reason is a Law that cannot lie it is not Mortal nor given by any thing that is Mortal it is not liveless nor written in Paper or insculpt on Pillars that are liveless but it is an immutable and immortal Law being engraven by an immortal hand on a mind that is immortal Cicero as * Lib. 6. c. 8. Lactantius quotes him gives this excellent description of it Right reason is a perfect Law that will not lie it is most agreeable to humane Nature and Vniversally diffused throughout all mankind It is incorruptible immortal which summons us to our duty by commanding it and drives us from all fraud by forbidding it neither are its Injunctions or prohibitions in vain to the Righteous though with the wicked they prevail not To this Law nothing must be added nor any part thereof detracted and wholly to abrogate it is impossible It is not in the power either of the Senate or the people to absolve us from our obedience to this Law neither need we to seek after any other Expositor than the Law it self Neither is it one Law at Athens and another at Rome one now and another hereafter But this one Law being both Eternal and Immutable shall bind all Nations and in all Ages As there will ever be one Common Lord and Governour of all which is God He is the sole inventour judge and giver of this Law which he that refuseth to obey must fly from and so unman himself and although he may fly from and haply avoid all other which are thought punishments yet for the wilful contempt of this only he shall be severely punished Now the Acts whereupon Right reason gives her Dictates are such as are either good or evil lawful or unlawful simply and of themselves and therefore must necessarily be understood to be either commanded or forbidden by God himself And herein the Law of Nature is different not from humane Laws only but from the Voluntary Divine for they do not command or forbid such things as are of themselves and in their own Nature either due or unlawful But by commanding them they make them the one and by forbidding them the other But for our better understanding of this Law of Nature we must observe That some things are said to belong unto the Law of Nature not properly or immediately but as the Schoolmen love to speak by way of reduction that is Some things belong to the Law of Nature by way of Reduction for as much as the Law of Nature doth not prohibit them As some things are said to be just because they have nothing in them of injustice And somethings are said to be lawful which the Laws do neither prohibit nor punish And sometimes by the abuse of the word those things which
Land to be held in Fee Farm is a benefit or a gift but the binding of him to whom this Grant is made to serve in the wars for our defence is faciam ut facias to do somewhat for him that he may do somewhat for us So the Gain by mony lent to traffick by Sea is mixt partly for the loan of my mony and partly for running the danger of the Seas VI. Or by accestion Acts are mixt by accession when we strengthen our own Acts by the Acts of another as by Sureties or by delivering Pledges or Hostages For Suretiship if we respect only the matter between the principal Debtor and the Surety is for the most part a Command or bidding the Surety to engage his credit for him But if we respect the business between the Creditor and the Surety who receives nothing at all from him it is an Act purely free yet because it confines upon such Contracts as are burdensom therefore it is to be reckoned as such So the giving of a thing to pawn or as a pledge seems of it self to be a free act whereby the detaining of the thing pawned becomes lawful but this also derives its nature from the contract which is thereby strengthned and secured VII Which of these are called Contracts All such Acts as are profitable unto others besides those that are merely bountiful and beneficent are comprehended under the name of Contracts VIII Equality is requisite in Contracts and first in Acts precedaneous In all Contracts Nature requires an equality and that so strictly that she gives a right to him that through inequality hath less than his due This Equality doth consist partly in the Act of Contracting and partly in that about which the Contract is made And in the Act of Contracting as well in those Acts that are precedaneous as in those that are principals IX As Equality in knowledge It appertains to these Acts that precede any Contract that he with whom we have to deal should discover unto us all the faults and defects which he knows to be in the thing contracted for which is not only required by the Civil Law but is most agreeable to the nature of the Act there being a nearer relation between the persons contracting than that which is common to all mankind And thus may that of Diogenes Babylonius be answered handling this Argument namely Cicero offic l. 2. 10. that all things are not hid which are not spoken Neither is it necessary for me to express all that is profitable for thee to hear as in matters celestial for the nature of a Contract being invented for gain and profit requires something that is more proper Val. Max. lib. 8. c. 11.1 To this purpose Valerius Maximus brings in an excellent example in Claudius Contumatus whose house standing near the Capitol and so hindring the Augurs in the prospect of the Birds and consequently in their divination was ordered to be demolished which Claudius knowing but concealing went immediately and sold his House to Calphurnius Lanarius who understanding the cheat appealed to Cato who prudently condemned Claudius alledging that bonae fidei venditor nec commodorum spem augere nec incommodorum cognitionem obscurare oportet And that with a great deal of Equity saith Valerius for an honest Seller should neither heighten the Buyers hopes of gain nor hide from him his knowledge of the incommodities of what he sells It was a good observation of St. Ambrose In contractibus etiam vitia eorum quae veneunt prodi jubentur ac nisi intimaverit venditor quamvis in jus emptoris transcripserit doli actione vacuantur In ordinary Contracts whatever defects are in the thing exposed to be sold ought to be discovered to the Buyer which if not faithfully done though the right of the thing be transfer'd to the Buyer yet ought the Contracts to be null'd by reason of the fraud in the concealment of the defects Lact. l. 5. As in case a man should sell an House that is haunted with Devils or infected with the Plague or a Servant that is a Fugitive and doth not discover it regarding only his own profit and not natural equity Non est ille sapiens sed callidus astutus That man is not wise saith Carneades but crafty and knavish But if the thing concealed do not immediately concern the thing contracted for we are not bound to reveal it As if I expose to sale such things whereof I know a greater quantity is coming in after to be sold I may safely conceal mine own knowledge yet even to discover this is commendable and in some cases not to be omitted without breach of charity yet I dare not say it is unjust I mean any violation of his Right with whom we have to do So that what the same Diogenes saith in the same place as Cicero quotes him is very true and to the purpose Advexi exposui vendo meum non plures quam caeteri Fortasse erunt minoris cum major sit copia cui fit injuria Hither have I brought my goods I expose them to sale I sell but mine own and at no dearer rates than others Perhaps when there is greater plenty they will be cheaper and in so doing whom do I injure Whence then we may observe that of Cicero is not generally to be admitted Celare quid that to hide a thing is when thou wouldest have them whom it concerns to be ignorant of what thou knowest thereby to gain profit to thy self For then only is this concealment unjust when it immediately concerns the thing that is to be contracted for as in Houses infected with the Pestilence or ordained by the Magistrates to be pulled down or the like For of these things there should be between the Buyer and Seller Par scientia an equal knowledg for that makes them both equal X. And in freedom of Will And as there should be an equality in knowledge between both the Contractors so should there also be a like freedom of Will between them not that in case the Seller be prepossest with an unjust fear no Contract can be made with him till that fear be removed for that is a thing extrinsick to the Contract But that no man ought to be constrained through fear to consent to the sale of what he would not otherwise part withal and if such an occasion of fear be given him to that end that it should be first taken away that so as well the Seller as the Buyer may have a like freedom of Will When the Aelians had bought some Lands of their Neighbors who durst not deny to sell it them on any terms The Lacedaemonians made no scruple to make void the Contract and therefore caused the Aelians to make restitution alledging That there was as much injustice in taking away the Goods of their Inferiors under the specious pretence of Purchase as in extorting from them by mere force Greek Hist
extend the Obligation is not rashly to be admitted But with much more caution than in the case before mentioned where we admit of words in their largest signification though not much in use For here we raise our conjectures without regard had to the words promising which cannot introduce an obligation unless the Conjectures be very certain for here a parity of Reason is not sufficient unless it be the very same Neither is the same Reason at all times sufficient because as I said before Reason doth often so move us that to shew our own freedome our will is of it self a sufficient cause of our Promises without any other Reason Now to justifie such an extended conjecture beyond the words of the Promise it is necessary that it should plainly appear That the Reason under which that case which we would comprehend falls was the only and most efficacious cause which moved the Promiser and that that Reason was in its generality so considered by him because otherwise the Promise would prove either unjust or unprofitable As for Example An agreement that such a place should not be surrounded with walls being made at such a time when no other Fortifications were in use should doubtless extend to all Muniments though but of Earth in case it do appear that the only reason why Walls were prohibited was That that place should not be fortified Another Example is usually brought of a man who believing his Wife to be with Child disposeth his Estate to such a man in case that Child should dye which by all probable conjectures should be extended to this sense Or if such a Child should not be born For certain it is That the Will of the Testator was moved with this only consideration That then he should have no Child of his own to inherit it This case we shall find not among the Lawyers only Lib. 1 2. de Orat. Bruto pâ—o Caecina but in Cicero and in Valerius Maximus Cicero in his Oration for Caecina pleads this case thus What Is this sufficiently provided for in words No. What then was of force to do it The Will Which if it could be understood by silence we should have no need of Words But because that cannot be therefore were words invented but such as should not hinder the Will but declare it And a little after in the same Oration he adds Idem jus esse ubi perspicitur una atque eadem causa aequitatis Where there manifestly appeared but one and the same cause of Equity i. e. where there was the same solitary cause moving It may be presumed there is also one and the same Right Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another and he adds this reason Quia idem valent sponsalia quod Nuptiae Because saith he such Espousals are equal to Marriages Exod. 21 28 35. So likewise in the Mosaical Law under the name of Oxen are all gentle Beasts comprehended so is every Pool or Pond under the name of a Well So likewise an Injunction though it run in this form Vnde me vi dejeceris hominibus coactis armatisve Whence thou hast thrust me out by force and arms takes place also against all manner of force that threatens our life and limbs For that which is usually done by armed men if by any other counsels or means we are brought into the same danger the Law affords us the same Right and Remedy Quintilian the Father in one of his Declamations brings in this Example Murther doth usually signifie the effusion of humane blood by the Sword But if a man be killed by any other means we have recourse to the same Law For if a man shall fall among Thieves or if he be thrown into a River and there drowned or if he be tumbled headlong from an high Precipice his death shall be revenged by the same Law as if he had been killed by the Sword The like Argument we find used by Isaeus concerning the Inheritance of Pyrrhus where because by the Laws of Athens a Father having no Son could not make his Testament if his Daughter were unwilling he infers that neither had he without her consent the power of adopting one XXI Whether a Command given for one thing be fulfilled in doing another as profitable if not more And from hence that famous Question in Gellius may easily be answered concerning a Command given by our Superiour Whether it may be fulfilled though not by the same yet by another thing equally profitable or haply more than that which was commanded Servants saith Quintilian act some things more freely out of a good mind and even our Slaves bought with our Money do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded Which may be done if it appear That what was so particularly described but only under some general consideration which might also be otherwise obtained But if that do not sufficiently appear Lib. 1. c. 13. then we are to follow Gellius his advice in that place For the Authority of a General would quickly be contemned if what he commands should be disputed and not obeyed XXII Or restrained and that either by reason of some defect in the Will That Interpretation that restraineth the sence from what the signification of the words wherein the Promise is contained will bear is derived either from an originary defect of the Will or from the repugnancy of some emergent case with the Will The originary defect of the Will is understood either from some absurdity which would otherwise evidently ensue or from failing of the main Reason which alone did fully and effectually move the Will or from a defect of matter The first whereof is grounded upon this That no man is to be believed to will things that are absurd XXIII Or when the main Reason ceaseth The Second is grounded on this That what is contained in the Promise whereunto such a Reason is added or where it is plainly understood is not considered barely or simply but as it falls under that Reason XXIV Or when there is a defect in the matter The Third is grounded on this That the matter so restrained is always observed to be in the mind of him that promiseth although the words of the Promiser do admit of a large signification XXV An observation concerning the last recited Conjectures But as concerning the Reason that moves the Will we must observe That under it are comprehended not only things actually existing but sometimes things that morally considered may be which when it takes place no restriction ought to be admitted As when it is in any League provided That no Army or Fleet shall be sent to such a place they ought not to be led thither though there be no intention thereby to do harm because in that agreement not so much the present damage as all future dangers whatsoever are regarded
reis It is the duty of a Priest to interceed for the guilty saith Aug. And there is a right introduced by Custom That they that flee to the Altar for Sanctuary are not to be delivered up until faith be given for the saving of their lives and that such as were for misdemeanors delivered to Prison should at Easter be freely released but he that throughly perpends these and such like Customs shall find That they proceed rather from minds full fraught with Christian Charity which watcheth all opportunities and occasions to do good than from minds quarrelling at the equity of Capital punishments whence it was that the priviledges of those times and places yea and the very intercessions themselves were moderated with some exceptions as we may learn by Cassiodore But here some will object against us the 12th Canon of the Council of Nice Lib. 11. c. 40. 12 Can. of Nicen Council which sounds to this sence If any being by the grace of God called shall first express their faith by deserting the War and afterwards returning to their vomit shall by money or favor seek to be re-admitted into the War these after the three years allowed them to hear the word shall remain among the Penitentials for ten years But in this case a strict observation must be taken how such persons stand affected and what fruits of Repentance they bring forth for whosoever among them shall shew forth their sincere conversion by fear by tears by Patience and good works without dissimulation these fulfilling their three years of hearing shall at length communicate in prayers and afterwards it shall be lawful for the Bishop to deal more tenderly with them But if any of them shall bear it but indifferently and shall think that their very entrance into the Church is sufficient these shall fulfil their whole time Whereunto I answer that by the time of 13 years Penance we may collect That the sin was neither small nor dubious for so great a punishment must needs be inflicted for some Crimes that were both to God abominable and to all good men scandalous which without question was Idolatry For the words preceeding in the elventh Canon do manifestly referr us to the times of Licinius which gives a very great light to the understanding of the sense of this Canon This Licinius as Eusebius relates in his War against Constantine Hist Eccl. â— 10. c. 8. first turned all Christians out of their houses and made sale of their goods then drew out all the Christian Souldiers and Officers both out of his Armies and Cities from the rest and then commanded That unless they would of their own accord sacrifice to Devils they should all of them be cashiered from their Offices Which fact of his was afterwards imitated by Julian whereupon many renounced their commands and among them one Victricius so did 1104 more in Armenia under Dioclesian concerning whom there is honourable mention made in our Martyrologies and so in Aegypt did Menna and Hesychius So also in the times of Liciuius did many renounce their Commands amongst whom was Arsacius mentioned among the Confessors and one Auxentius afterwards made Bishop of Mopsuestia Now they that out of tenderness of Conscience had formerly renounced their Commands had no possible means to be re-admitted under Licinius but by a publick Abjuration of the Christian Faith wherefore as they that were so admitted committed much the greater sin being against knowledge and Consciâ—â—ce so they deserved a much greater punishment than those mentiâ—â—ed in the foregoing words of the Canon namely that without any danger either of life or goods had renounced their Christianity But to interpret this Canon so generally as if it comprehended all manner of going to War is infinitely against reason For the same Historian testifies That many of them that under Licinius had laid down their Arms and whilst Licinius Reigned did never reassume them because they would not abjure their faith in Christ being by Constantine left to their own choice were upon their request re-admitted There are likewise that urge against us the Epistle of Pope Leo where it is said to be against the Ecclesiastical Canons to return into a Secular War after the Act of Repentance But here we must understand That from Penitentiaries as well as from Priests and Monks there was required a more strict and austere course of life than what was required from other Christians That they might be as great examples to others of Contrition and Humiliation as they had been before of prevarication For as Leo well observes Illicitorum veniam postulantem oportet etiam multis licitis abstinere It is but just that he that begs pardon for his unlawful acts should abstain from some things otherwise lawful So in an Epistle wrote by some Bishops to King Lewis we read Quilibet tanto à se licita debet abscindere quantò se meminit illicita perpetrasse Every man ought so far to abridge himself of things lawful by how much he remembreth that he hath committed some things unlawful So in those ancient Customs of the Church which to gain the greater reverence are commended unto us under the name of the Apostles Canons It is decreed that no Bishop Priest or Deacon should addict himself to the War so as to retain the dignity of both Functions both Civil and Sacerdotal But leaving unto Caesar the things that are Caesars they should give unto God the things that are Gods Whereby it appears that they who were not thought worthy to be admitted to Ecclesiastical dignities were not interdicted those that were Military with this also That none who after Baptism had obtained any Office Civil or Military could be admitted into the Clergy As may also be collected from the several Epistles of Syncius Innocentius and from the Toletan Council For Clergy men were not chosen out of any sort of Christians but out of such as were likely to be exemplary unto others in austerity of life and manners Besides upon Military Officers as also upon some Civil Magistrates there lies a perpetual obligation But such as put themselves into Holy Orders ought not to be entangled with any other care nor diverted by any other daily Labour For which cause it was provided by the 6th Canon That no Bishop Priest or Deacon should take upon them any secular imployment nor thrust themselves into any publiclk Office And by the 6th Canon of the African Council Can. Apost 6.8 Vid Ep. Hier. ad nepot They were forbidden to be Sollicitors of other mens affairs or to defend other mens causes But that which gives the greatest reputation to our opinion is the judgement of the Church which we have set down in the third Canon of the first Council of Arles which was held under Constantine The words sound thus Concerning those that cast away their Arms in the time of peace it pleaseth the Synod that they should be debared from the Communion
those who first entred into Civil Society from whom the right of Government is devolved upon the persons Governing Who had they been demanded ☜ Whether they would have imposed such a yoke upon all Mankind as death it self rather than in any case by force to repel the Insolencies of their Superiours I much question whether they would have granted it unless it had heen in such a case where such resistance could not be made without great commotions in the Common-wealth or the certain destruction of many Innocents for what Charity commends in such a case to be done may I doubt not pass for an humane Law But some may say that this rigid obligation to dye rather than at any time to resist injuries done by our Superiors is not imposed on us by any humane but by the Divine Law But we must observe That men did not at first unite themselves in Civil Society by any special Command from God but voluntarily out of a sence they had of their own impotency to repel force and violence whilst they lived solitarily and in Families apart whence the Civil Power takes its rise For which cause it is that St. Peter calls it an humane ordinance although it be elsewhere called a Divine Ordinance because this wholesom constitution of men was approved of by God himself But God in approving an humane Law may be thought to approve of it as an humane Law Barkley Lib. 3. contra Monarchomach c. 8. and after an humane manner Barkley who was the stoutest Champion in defending Kingly Power doth notwithstanding thus far allow That the People or the nobler part of them have a right to defend themselves against cruel Tyranny and yet he confesseth that the whole body of the people is subject unto the King Now this I shall easily admit That the more we desire to secure any thing by Law the more express and peremptory should that Law be and the fewer exceptions there should be from it for they that have a mind to violate that Law will presently seek shelter and think themselves priviledged by those exceptions though their cases be far different Yet dare I not condemn indifferently either every private man or every though lesser part of the people who as their last refuge in cases of extreme necessity have anciently made use of their Arms to defend themselves yet with respect had to the common good For David David's example who saving in some particular Facts was so celebrated for his integrity did yet entertain first four hundred and afterwards more armed men to what end unless for the safeguard of his own person against any violence that should be offered him But this also we must note That David did not this until he had been assured both by Jonathan and by many other infallible Arguments that Saul sought his life and that even then he neither invaded any City nor made an Offensive War against any but lurked only for his own security sometimes in Mountains sometimes in Caves and such like devious places and sometimes in Foreign Nations with this resolution to decline all occasions of annoying his own Countrymen A Fact parallel to this of Davids we may read of in the Maccabees The Maccabees For whereas some seek to defend the Wars of the Maccabees upon this ground That Antiochus was not a King but an Usurper this I account but frivolous For in the whole Story of the Maccabees we shall never find Antiochus mentioned by any of their own party by any other Title than by that of King and deservedly For the Hebrews had long before submitted to the Macedonian Empire in whose Right Antiochus succeeded And whereas the Hebrew Laws forbad a Stranger to be set over them this was to be understood by a voluntary Election and not by an involuntary Compulsion through the necessity of the times And whereas others say That the Maccabees did act by the peoples right to whom belonged the Right of Governing themselves by their own Laws neither is this probable For the Jews being first conquered by Nebuchadonosor were by the right of War subject unto him and afterwards became by the same Law subject to the Medes and Persians as Successors to the Chaldeans whose whole Empire did at length devolve upon the Macedonians And hence it is that the Jews in Tacitus are termed The most servile of all the Eastern Nations neither did they require any Covenants or Conditions from Alexander or his Successors but yielded themselves freely without any limitations or exceptions The Jews a conquered Nation as before they had done unto Darius And though they were permitted sometimes to use their own rites and publickly to exercise their own Laws yet was not this due unto them by any Law that was added unto the Empire but only by a precarious Right that was indulged unto them by the favour of their Kings There was nothing then that could justifie the Maccabees in their taking of Arms but that invincible Law of extreme necessity which might do it so long as they contained themselves within the bounds of self-preservation and in imitation of David betook themselves to secret places in order to their own security never offering to make use of their Arms unless violently assaulted The Kings Person to be spared in the defence of our selves 1 Sam. 26.9 In the mean time Great care is to be taken that even when we are thus enforced to defend our selves in cases of certain and extreme danger we spare the Person of the King for they that conceive the carriage of David towards Saul to proceed not so much from the necessity of duty as out of some deeper consideration are mistaken For David himself declares that no man can be innocent that stretcheth forth his hand against the Lords anointed Because he very well knew that it was written in the Law Exod. 22.28 Thou shalt not revile the Gods that is the Supreme Judges Thou shalt not curse the Rulers of thy people In which Law special mention being made of the Supreme Power it evidently shews that some special duty towards them is required of us Wherefore Optatus Milevitanus speaking of this fact of David Lib. 2. saith That Gods special command coming fresh into his memory did so restrain him that he could not hurt Saul though his mortal enemy Wherefore he brings in David thus reasoning with himself Volebam hostem vincere sed prius est divina praecepta observare Willingly I would overcome mine enemy but I dare not transgress the Commands of God And Josephus speaking of David after he had cut off Sauls Garment saith That his Heart smote him So that he confest Injustum facinus erat Regem suum occidere It was a wicked act to kill his Soveraign And presently after Horrendum Regem quamvis malum occidere Poenam enim id facienti imminere constat ab eo qui Regem dedit It is an horrid act to kill a
Injury offered to humane Nature Lib. 1. Romulus in Livy makes it his request to his Neighbours That they would not disdain by Interchangable Marriages to mix generations with them And Canuleius in the same Author pleads thus We saith he require but lawful Wedlock which to Neighbour Nations and Foreigners is usually granted What is unjustly denyed De Civit. Dei lib. 2. c. 17. may by the right of War be justly taken saith Aug. Now whereas the Civil Laws of some people do carefully provide against such Marriages they seem to be grounded upon this reason Because in the times when those Laws were made there was hardly any Nation or People but were sufficiently stored with Women or that those Laws were not intended to interdict all such Marriages but such only as were Legitimate or Just that is which should produce some special effects of a Civil Right XXII A Right to do such acts as were permitted to all strangers Among such acts whereunto a Right in Common is given by supposition we are to reckon those which a Prince or People do promiscuously permit to all strangers for that Nation is injured which is excluded Thus if it be permitted in any place for strangers to Hunt Fish Hawk gather Pearls If it be allowed them to receive Legacies to sell Commodities if even where there is no scarcity of Women to contract Marriages these cannot be denied to any one people unless they have some ways abused their Liberty for which cause it was Judg. 20. that the rest of the Hebrews denied to inter-marry with the Benjamites XXIII I mean such as are permitted by the Right of nature not out of grace and favour But this is to be understood of such Acts only as are permitted as it were by vertue of that liberty which nature gives being restrained or taken away by no Law but not of such as are indulged to any Nation as acts of Grace dispensing with the Laws For to deny a Courtesie is no Injury XXIV Whether to engross all the fruits of one kind be lawful Another Question is frequently started which is this Whether it be lawful for one Nation to contract with another for all their Fruits of such a kind which are no where else to be found so that they shall sell none to any other Nation This in mine opinion may be lawful If that people that shall so buy them be willing to communicate to others at a reasonable price For it concerns not other Nations much by whom they are supplied with their Natural wants so as they are supplied And it is lawful for any to anticipate others in matters of profit especially if there be any special cause for it as in case the people making this Contract shall undertake the protection of the other people and shall for that cause be at some expence or charge For such an Ingrossing made with such an Intent as I have said is no way repugnant to the Natural Right although it be sometimes prohibited by the Civil Law for the benefit of the Common-wealth CHAP. III. Of the Original Acquisition of things where also of the Sea and of Rivers I. That things were originally acquired either by division or occupancy II. Other ways refuted as the concession of Right Incorporeal III. As that also of Specification IV. Occupancy two-fold either of Empire or of Dominion This explained V. That the Right of Occupancy as to things movable may by Law be prevented VI. The Dominion of Infants and Mad-men by what Right held VII That Rivers may be acquired by Occupancy VIII Whether the Sea also may be so IX Anciently in some parts of the Roman Empire that was not lawful X. But as to such parts of the Sea as are Included by Land on each side the Law of Nature doth not Impugn it XI How such a Right of Occupancy may be made and how long it lasts XII That such an Occupancy gives no Right to Impede an Innocent passage of Ships upon them XIII That Empire over some part of the Sea may be gained by Occupancy and how XIV That Toll for certain causes may be Imposed on such as traffick by Sea XV. Of Agreements which forbid some people to sail beyond certain bounds XVI A River changing its course whether it change the bounds of the territory explained by a distinction XVII What is to be determined in case a River do manifestly change its course XVIII That the whole River doth sometimes pass with the Territory XIX That things clearly deserted become the next Occupants unless the Propriety be held in general by some Prince or People I. How things become ours originally THings may become ours by a particular Right either by an Originary or by a Derivative Acquisition Originary Acquisition when men began first to associate together might also arise by Division as we have said but now by Occupancy only II. Other means refuted But some man may haply say That somewhat of Originary Right may also be acquired by some service done or by reason of some Pledge c. But to him that throughly weighs the matter it will appear That this is no new Right unless it be in respect of the manner for it was first virtually in the dominion of the Lord. III. Paulus the Lawyer to the Causes of Acquisition adds this which indeed seems most natural if we our selves have given being to that which we claim as ours But since nothing can naturally be made without some pre-existing matter Now if that be ours the Species being introduced the dominion will be continued But if the matter pre-existing belong to none then shall the Right be acquired by a kind of Occupancy But if it it belong to another then that the Right of Propriety descends not naturally unto us alone will appear by what follows IV. Occupancy two-fold of Empire or Dominion Now let us examine Whether that Occupancy which after those first times is the only natural means of gaining Propriety be also the Originary Of things that properly belong to none two things are subject to be held in Propriety namely Empire and Dominion as it is distinguisht from Empire Which Seneca thus differenceth Ad Reges potestas omnium pertinet ad singulos Proprietas To Kings appertain the Soveraignty over all to private men the Propriety or Dominion of what is theirs Ch. 5. And a little after Rex omnia Imperio possidet singuli Dominio Kings hold all by their Soveraignty and private men what is theirs by Dominion And again Caesar omnia habet Fiscus autem privata tantum sua Caesar hath all yet is his Exchequer private only Lib. 10. Ep. 54. and his own So Symmachus concerning Kings Ye Rule all but preserve to every one his own Of the same mind was Dion Prusaensis Regio civitatis est at non eo minus in ea suum quisque possidet The whole Countrey is under the command of the City yet in it every
the Ship and the goods that are therein transported XIV To a good Promise acceptation is requisite A pretending demand argues an acceptance if no alteration appear But that a Promise should transfer a Right in the thing promised the acceptance of him to whom it is promised is no less requisite than it was in the case aforesaid of Alienation And herein Tertullian in his Book of Fasts speaks like a Civilian Votum cum à Deo acceptatum est Legem in posterum facit A Vow though freely made yet when it is by God accepted is as binding as a Law And here also a preceding demand of a thing promised if no alteration appear shall be judged an acceptance Neither doth that which the Civil Law hath introduced concerning such Promises as are made to Cities hinder this Which notwithstanding hath so far prevailed with some that they hold that the sole Act of the Promiser is by the Law of Nature sufficient to transfer a Right For the Roman Law saith not That the Promise is fully compleat and of force before it be accepted but that it is not lawful to revoke such a Promise but that it may be always accepted which effect is not from the Law of Nature but meerly from the Civil Law Not much unlike unto that which the Law of Nations hath introduced in favour to Infants Ideots and Mad-men For for these as the will and purpose of possessing things that are gained by occupancy so the will and purpose to accept of things promised creates a Right XV. Whether it be requisite that the acceptation should be made known to the Promiser It is also sometimes controverted Whether to make a Promise fully effective it be requisite that the thing promised be not only accepted but that the acceptance be also made known to the Promiser before it can obtain its full effect And certain it is that either way the Promise made may be binding As for Example either thus This will I do if it shall be accepted or thus This I will do if I shall understand that it will be accepted And if the Promise do imply a mutual obligation on both sides then it is to be understood in the latter sense But if the Promise be free and spontaneous then it is best to believe that it was meant in the former sense unless it shall appear otherwise XVI Whether a Promise made may be revoked before it be accepted Again Hence it follows That such a Promise made before Acceptance for till then no Right passeth may be revoked without the imputation of either Injustice yea or Levity if it were really so intended when made That it should not be of Force till it were accepted so till then it could transfer no Right It may also be revoked in case the person shall dye to whom such a Promise was made before he hath accepted of it Because the Acceptance was referred to his own choice and not to his heirs For it is one thing to be willing to give away my Right to such a man to be by him transferred to his Heirs and another thing to be willing to give it unto his Heirs immediately It is very material to consider on whom we bestow a benefit Of this opinion was Neratius who could not believe that a Prince would have granted that to him being dead which he had granted unto him believing him to be alive XVII Whether it may be revoked if the party dye who was authorized to make it Explained A Promise may also be revoked upon the death of the person who was authozed to make it because the binding power was in his words But not so if the grant be sent by a Messenger or a Carrier because the obliging power is not in him but in the Instrument he carries And therefore those Letters importing the consent of the party may be conveyed by any man We must also distinguish between him that is deputed only to signifie the Promise we make and him that is authorized by us to make that Promise himself In the former case a revocation shall take place although it be not so exprest to him that carries the Promise or Grant In the latter case the revocation is of no force because the obliging power depended upon the Will of him that is sent to make it who if he do make it whilest it is in his power so to do that is before the revocation be made known unto him the grant shall be valid and the person that made it justified So also in the former case though the Donor dye yet may the gift be accepted as being on his part perfect and compleat although subject to a revocation which is apparent in Ambassadours But in the latter case it cannot because the gift is not actually given but only commanded to be given But where the matter will admit of a debate it may be presumed that the will of the Prince was That his Commands should be executed unless some great alteration should happen in the mean time As namely the death of the person commanding 'T is true there may be many conjectures that may be of force to perswade us to think otherwise which may easily be admitted That so what was in a good cause commanded to be given may notwithstanding abide with us And thus may that question that hath been heretofore muted be answered Whether the heir of him that was so commanded may be sued at Law XVIII Whether a Promise be revocable after it hath been accepted of by another Controversies also do usually happen concerning the accepting of a thing in the behalf of another Wherein also we must distinguish between that Promise that is made to me of something to be given to another and that promise which is made in the name of him to whom the thing is to be given If the Promise be made to me setting aside that Query introduced by the Roman Law Whether any benefit do accrue unto me by it The Right of accepting the thing seems naturally to be given to me and the power of transferring that Right unto another if he also will accept thereof so that he that made the Promise hath no Right in the mean time to revoke it but I to whom the Promise was made may remit it For this sense as it is no whit repugnant to the Law of Nature so is it most agreeable to the words of such a Promise Neither can it be said not at all to concern me That another by me should receive a benefit But if the Promise be made in his name to whom the thing is to be given we must then enquire Whether he that accepts of what is promised hath a Special Command so to do or an order so general as may be thought sufficient to include it or whether he hath no such order at all If it do appear that he hath such order or authority to accept thereof I do not then conceive it necessary to enquire any
l. 3. which are the very words of Xenophon But what exceptions the Law of Nature admits of in these cases shall be discoursed of in its proper place XI Equality in the act it self if it be permutatory In the very principal act of Contracting there is also required this equality that no more be exacted than what is fit which rule is of no force in such acts as are beneficent For if I will give somewhat more by way of reward either for work done at my command or for things lent me or for preserving things deposited than is justly due I do no man wrong I do but mix the act by making it partly permutatory and partly gratuitous But in all permutatory Contracts this equality is punctually to be observed Neither is it to the purpose to pretend that what is either promised or given by either party more than is due may be accounted as a donative for this is not the usual meaning of Contractors nor is it to be so presumed unless by some act or word it be so declared A just proportion to be observed between the Giver and the Receiver For whatsoever either party doth either give or promise is but in proportion to what they expect to receive and as it were to even the Ballance insomuch that St. Chrysostom was of opinion and not without reason That in Contracts as often as we strive earnestly to buy any thing for less than it is worth or to have more than our just measure or weight there was in that Fact a kind of Theft He that writes the Life of Isidore in Photius tells a Story of one Hermias who having bought any thing that was judged more worth than he paid for it would of his own accord add as much as it wanted of the true value holding it a kind of Injustice to detain it but such an injustice as few men then understood and as few now adays would scruple at And in this sence do the Jewish Doctors interpret that Law of Moses Lev. 25.14 and 17. If thou sellest ought to thy Neighbor or buyest ought of thy Neighbors hand ye shall not oppress one anocher XII And in the things contracted for Yet farther Though both parties have equal knowledge of the thing contracted for and also equal freedom of Will so that there is nothing concealed that should be discovered nor a greater price exacted than is thought to be due yet if there prove to be any inequality in the things themselves which the parties themselves could not discern or that there were a mistake of the just price or value then that error or mistake is to be rectifyed by the Roman Laws And he that hath too much must impart to him that hath too little because in that Contract it was or ought to have been the mind and meaning of both parties That there should be an even ballance in a right estimation And yet do not the Roman Laws require this in every unequal Contract Minima non persequitur Lex In case the inequality be but small the Law takes no cognizance of it to prevent multitudes of suits but only where the inequality is weighty as where it exceeds half of the just value For the Law as Cicero saith restraineth iniquity by pinnacling the hand but Philosophy by Reason and Understanding But they that are not subject to Civil Laws ought to follow that which by the dictates of right reason seems unto them righteous yea and they also that are subject to Laws so oft as they have to do with such things as are agreeable to Piety and Religion if the Laws do neither give nor take away Right but only deny their aid and assistance unto it for some certain reasons XIII What Equality takes place in Acts merely or in part beneficent But here also it is to be observed that some equality ought to be had even in such Contracts as are beneficent yet not altogether so strict as are in those that are permutatory but as the case of such Contracts may be supposed namely lest any man should be damnifyed by the good he doth For example That he who doth any thing in obedience to anothers Command should be saved harmless and indemnifyed as well in respect of his charges as of any loss sustained by reason of the execution of that command Again Things lent That he to whom any thing is freely lent should satisfie the just value if the thing perish in his custody because he stands obliged to the owner not only for the thing it self but to be thankful for the courtesie done him in the loan thereof unless it be evident that the thing so lent had certainly so perished had it continued in the possession of the right owner For in this case he loseth nothing by the Loan But on the contrary He with whom any thing is deposited Things deposited receives nothing but a bare trust and therefore if the thing miscarry he is not bound to repair the loss Neither in respect of the thing trusted there being no such in being neither is the Trustee any thing the richer for it nor in respect of his acceptance of the trust because thereby he receiveth no courtesie but doth one And as to things pawned as also in things let out to hire a middle way is to be taken for in every case of loss the receiver is not bound to restitution as he is to whom a thing is lent yet is a much greater care required from him to preserve it than of that which is committed barely to trust because the acceptance of it though gratuitous yet usually comes very neer unto such Contracts as are burdensom All which do agree with the Roman Laws but were originally extracted from natural equity and are therefore found to be of force amongst other Nations As amongst others of the Hebrews See Exod. 22 6 10 11 12 13. for so Moses Maimonides testifies And hereunto hath Seneca respect * De benef l. 7. c. 19. when he saith That some owe fidelity and others Tutelage and Protection And by these rules we may easily pass our judgments upon other Contracts But now having as far as is requisite to our purpose sufficiently discours'd of Contracts in general we shall briefly handle some more particular questions concerning them XIV Concerning the price of things how they may be dearer or cheaper The most natural measure whereby the true value of every thing is known is by the want of it as Aristotle rightly observes which rule the barbarous Nations do very strictly walk by Yet is not this the only rule that guides the value of things for the mind of man like an Empress covets many things for their rarity which are not purely necessary Margaritis pretia Luxuria fecit It is Pride that gives the price to Pearls saith Pliny †Lib. 32. Pearls â—nd Coral And in another place Look saith he what value we put upon
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Greeks do commonly understand Righteousness and by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
in God whereby we can no more conclude that it is generally and of it self unlawful to make a League with such as this Syrian was than it would be to consult a Physician about a mans health Multa enim non illicita vitiat animus The mind sometimes makes that unlawful which in it self is not As that Act of David's in numbring the people and that of Hezekiah's in shewing his treasure to the King of Babylon 2 King 20.13 So Es 31.1 the vain confidence of Gods people in the Egyptians is sharply reproved whereas it was lawful for Solomon to contract a League with them 1 Kings 3.1 And good reason for the Hebrews under the Old Law had the express promises of God for victory in case they observed the Law and therefore they had no reason to fly to humane succours in times of danger Besides there are many excellent Sentences in Solomons Proverbs that disswade us from the society of the wicked But these are rather Prudentis monita quam legis praecepta Wise mens counsel than Dictates of the Law And these admonitions have many exceptions as most Morals have X. Nor by the Christian Law But the Gospel gives a greater encouragement to Leagues made with such as are strangers in Religion whereby they may in a just cause be relieved than the Law doth for as much as we are commanded to do good unto all men yea even unto our enemies and this too not as a thing commendable only as to be thankful but as a thing necessary For we are enjoyned thereunto under this penalty of being reputed Bastards and not Sons of our Heavenly Father who in causing the Sun to shine and the Rain to fall promiscuously upon and good the bad would have all his Children to do good unto all men Matth. 5.45 'T was very well said of Tertullian As long as God restrained his Covenant to Israel only he enjoyned them to shew mercy to their Brethren But when he enlarged his Kingdom over all giving unto Christ the utmost parts of the Earth for his possessions he extends the Law of brotherly love unto all men so that as he exempts no Nation from his Calling so we should exempt none from our Charity Gal. 6.10 Off. l. 3. Which notwithstanding must be understood with some grains of allowance to those who are of the same Faith So Clemens in his Constitutions We are to communicate of our labours to all but especially to the Saints For as Aristotle observes Nic. 4. There is no reason that we should take as much care of strangers as we do of friends Our eating and drinking with men of another Religion is no where forbidden us neither are we interdicted all manner of commerce with such as are Apostates from the true Religion but only all familiar conversation with them beyond what is necessary but not such as may haply beget hopes of their Conversion And by that of St. Paul to the Corinthians 2 Thess 1.15 Be not unequally yoked with unbelievers c. It appertains unto those who communicated with them in their Idol Feasts and were thereby drawn either to commit Idolatry or at least to seem to do so And this is evident by what follows What fellowship hath the Temple of God with Idols 2 Cor. 6.14 like unto what he said before Ye cannot partake of the Table of the Lord and of the Table of Devils 1 Cor. 10.21 And yet we may not conclude That because we may contract Leagues with them therefore we may also willingly put our selves to live under the Government of Infidels and contract Marriages with them For in both these cases there may be a great deal of danger and many hinderances to the free exercise of the true Religion Besides these bonds are more lasting And a greater freedom of choice there is in our marriages whereas Leagues are usually made according to the occasions of time and place And as to do good even to profane persons is not evil so neither is it to implore help from them For St. Paul we read sought aid from the Tribune and appealed unto Caesar XI Cautions about such Leagues In contracting Leagues with Infidels then there is no Intrinsick or Universal Evil but what evil there is must be collected from circumstances For special care must be taken that by our too near alliance with them we do not scandalize the weak And therefore where there is a mixture of men of diverse Religions as in an Army it is very convenient that their habitations be distinct as the Israelites were from the Egyptians whereunto also appertains what we have elsewhere delivered concerning the Religion of Jews and Christians Book 1. Ch. 2. when they jointly warred against the Pagans And although by such Contracts great improvement of prophane wealth may be made yet were it better to abstain unless it be upon great necessity In which case that of Thucydides takes place They that are treacherously assaulted as we are by the Athenians are not to be envyed if they seek to preserve themselves by the aid Lib. 1. not of the Grecians only but of the Barbarians For it is not the defence of every thing that is our right that can justifie us in the committing of that which may if not directly yet indirectly prejudice our Religion For we are taught in the first place to seek the Kingdom of God that is the propagation of the Gospel And it is seriously to be wished that many Princes and people at this day would be mindful of that free and devout admonition which Fulk sometimes Arch-Bishop of Rhemes gave to Charles the Simple Whose heart doth not melt within him to think that your Majesty should go about to contract friendship with Gods enemies and to the ruine and subversion of Christians to make use of the Arms of Pagans Nihil enim distat utrum quis Paganis se sociat an abnegato Deo Idola colâ—t For saith he there is but small difference between confederating with Pagans and by denying God to worship Idols Alexander in Arrianus thought those men unworthy of the name of Grecians who being so did notwithstanding fight for the Barbarians against the Grecians for that which did by right belong to Greece Much more worthy of Imitation was the Piety of Emanuel Duke of Savoy who when he might have recovered Cyprus by the help of the Turks refused it I would to God that all Christian Princes would follow the Example of this Generous Duke and not implore the Aid of Pagans against their Brethren nor assist them to enlarge their Empires and consequently to darken the Light of the Gospel XII All Christians obliged to confederate themselves against the enemies of Christianity Hereunto I shall add That since all Christians are but Members of one Body which are commanded to have a fellow-feeling of â—ach others sufferings as that Command extends to every singular person so should it to every Nation
sin is the injustice of the fact For we speak not here of all sins but of those which have respect to something without the person sinning Now this injustice is so much the greater by how much the damage thereby done to another is greater And therefore those are the greatest injuries that are actually consummated and those the least which though they have made their progress through some Acts yet are not arrived to the utmost Act For which reason the coveting of our neighbours goods is placed by Moses in the rear of the Decalogue as being a sin of the lowest form or as it were but an introduction to sin which the farther it goes the worse it is In either of these kinds that is esteemed the greatest crime which disturbs Common Order and thereby gives offence to most men After this follow the injuries done to particular persons And of these the highest is that which touches the life of Man exprest by Moses in this Precept Thou shalt not kill The next is that injury done to a Mans Family the foundation whereof is laid in Matrimony contained in these words Thou shalt not commit Adultery The third and last are such as are committed against a Mans private Estate either directly as by stealing or indirectly as when by our false Testimony we prejudice the Right of others These may be yet more acutely divided But it pleased Almighty God in the Decalogue to follow this Order For under the name of Parents which are Natural Magistrates it is fit that Magistrates and other Rulers and Governours should be comprehended by whose Authority Humane Society is maintained Next unto this follows the Interdiction of Homicide the Institution of Matrimony and the prohibiting of Adultery then Theft is forbidden and false testimonies and in the last place such sins as are inconsummate Neither amongst those Causes that should restrain us from sin are we to place that single damage only that is done directly against others but that also which is probably consequent to it as in firing an house making a breach in the sea-bank or in a bulwark wherein the lives and fortunes of many Families are concerned Moreover that Injustice which we put here as a general cause of restraining from sin is sometimes aggravated by the addition of another crime as our impiety to our Parents our inhumanity to our Kindred our ingratitude to our Patrons or Benefactors Again a sin is reputed the greater being the oftner committed forasmuch as an habit of evil is far worse than some particular acts of evil Once to erre is pardonable but in iisdem saepius errare emotae est mentis To dash often against the same stone is folly nay madness the oftner we offend the greater punishment we deserve And from hence we may collect how far forth that was naturally Righteous which was usually done amongst the Persians who before they passed sentence upon a Malefactor The Persian Custom looked back to his former life and compared it with the present Crime he stood convicted of for they thought it unjust to take away the life of any man for one evil act unless the whole course of his life had been otherwise sinfull And indeed what Asinius Pollio saith is very true We are not to judge of any person by some particular acts but by his continued habits None are to be accounted notoriously wicked but they that have long persisted in a constant course of wickedness Nemo repente fit pessimus No man arrives at the heighth of impudency at the first For our innocency leaves us not but by degrees and boldness that it may learn not to startle at grosser villanies gathers strength and courage by the frequent committing of lesser ones And yet what Asinius Pollio said concerning the judging of mens present Crimes by their former lives ought to take place in such only who being otherwise not wicked have been on a sudden surprized by the sweetness of some particular sin But not in those who have changed the whole course of their former lives For of these God himself by the Prophet Ezekiel proclaims Chap. 18. Lib. 1. that he will have no regard at all to their former deeds whereunto that of Thucydides may very fitly be applyed They deserve doubly to be punished because they are Apostates from goodness and degenerate from Virtue to Vice And therefore it was wisely provided by the Primitive Christians in their censures of other mens failings That no Judgment should pass barely for the crime committed but with retrospection on their fore-past lives and on what followed as may be seen in the Council of Ancyra and others Lib. 3. de Sacerdotio So St Chrysostome Punishments are not alwayes to be inflicted according to the sole measure of the Crimes but we ought to enquire into the mind and manners of him that commits them But a Law being once Enacted against any one Vice Rom. 7.13 makes a sin exceeding sinfull So St Aug. Lex prohibens omnia delicta congeminat De vera Relig. Ob. The Law in prohibiting doubles all offences for it is not a single sin when we commit not that only which is in it self evil bâ—t tbat also which is forbidden us And by this argument St Paul aggravates the sins of the Jews in respect of those of the Gentiles because they had the Law to direct them We must not therefore be rash in judging nor as Cicero adviseth in grave and serious things determine of the will and intentions of the person accused barely by the fact but by his manner and custome of living A good man may haply be ensnared by the sweetness of a sin or by the sudden gust of temptations and yet in the general course of his life he may retain his integrity The heart of Asa is said to be upright all the dayes of his life and yet when he was sick it is objected against him That he sought unto the Physician and not unto the Lord. XXXI The fitness of the person offending to both which is diversly respected Now before we can rightly understand how to punish we must know the aptness and capacity of offenders to apprehend the causes which do either excite them to commit or restrain them from committing of sin Now this aptness or capacity of theirs we may guess at by either their temperament of body age sex education or some of the circumstances of the act For it will easily be granted that children women fools illiterate persons and ill educated cannot so well distinguish between just and unjust lawfull and unlawful as they that have more perspicacity and ingenuity and that they in whom choler predominates are prone to anger and revenge as they also that are of a sanguine complexion are to dalliance so young men are propense to one passion old men to another insomuch that Nature seems to plead somewhat in their excuse as to such sins as are as it were congeneal with them as
Samians after three ages Injuries done should not be revenged but on those that did them From all which we may conclude That the memory of injuries done us ought not to outlive the persons that did them neither will those arguments brought by Plutarch in defence of the revenge taken by God upon Posterity for the sins of their Ancestors serve to justify the like in men because there is not the same right between man and man as there is between God and man neither will it necessarily follow that because our Children do receive honours and rewards for the vertuous acts of their forefathers therefore they may be justly punished for their faults because such is the nature of a courtesie or benefit that it may be conferred upon any man without injury but the nature of a punishment is not so IX Whether a man may partake of the punishment tho' not of the crime Thus having shewed by what means a man may partake of the punishment by being made accessary to the sin of another now we intend to shew how a man may be involved in the punishment though he be no ways accessary to his sin And here to avoid mistake and that we may not confound things in their own nature distinct because they are alike in name we must walk cautiously as to some particulars X. That which comes directly distinguisht from that which comes by consequence As in the first place we must distinguish between that damage that is purposely and directly done and that which comes by consequence that I account a wrong directly done when that is taken away whereunto a man hath a peculiar right And that I call a wrong done by consequence when a man is deprived of that which otherwise he might have had that condition ceasing without which he could have no right or title An example whereof Vlpian gives us thus If by digging a Well in my own ground I cut off or intercept the spring that feeds my neighbours Well the damage he sustaineth is not occasioned directly by any illegal act of mine but by the lawful use of that wherein I had a proper and peculiar right as being mine own And in another place There is a great difference between the doing of an injury and the prohibiting a man to make the profit which he hath hitherto been permitted to make And it is very preposterous saith Paulus the Lawyer to account our selves rich before we have acquired those riches As when a Father runneth into a praemunire by doing that for which his estate is justly confiscate his Children may feel the loss 't is true but the loss is not properly their punishment because the goods could not properly be accounted theirs unless they had continued to have been their Fathers to the hour of his death which was well observed by Alphenus when he said The Children indeed do suffer through the default of their Father but that they do not inherit that which should otherwise have descended unto them is not properly the Childrens punishment but their Parents But those goods which accrew unto them not from their Parents but either from nature custom or education do notwithstanding their Fathers fault remain perfectly theirs Cicero writes that Themistocles his Children suffered want nor did he think it unjust that Lepidus his Children should do the like and this he affirms to be an ancient custom and observed in all Cities which notwithstanding the later Roman Laws have somewhat moderated So when through the default of the major part which as we have said before represents and hath the power of the whole the whole offends and upon that account loseth their civil liberty i. e. their Walls Ports and other Commodities those particular persons who were innocent do indeed bear an equal share in the loss but yet in those things only which appertained not unto them but as they were a part of the whole XI What befals us by the occasion of a crime distinguisht from that which befals us because of the crime Besides it is to be noted that sometimes some evil is to be imposed on a man or some good taken from him by the occasion of anothers sin yet so that that sin is not the immediate cause of that action as to the very Right of doing it as he that passeth his word for the debt of another suffers not by reason of the debt but by reason of his ingagement according to our Proverb A Surety is a sure tye For as he that passeth his word for a buyer is not bound by the purchase but by his own free promise So he that undertakes for a delinquent may suffer Sponde noxa praesto est not for his delinquency but by reason of his vadimony or susception which as it was in his own free power to do or not to do so being done it shall no less oblige him than the offence did the delinquent Now the ground of this is the power and freedom that every man hath to oblige himself and therefore the measure of his sufferings is not to be taken from the hainousness of anothers fault but from the power he hath to oblige himself The consequence whereof is That no man can justly be put to death by being a surety for another whose crime may happily deserve death because no man can justly oblige himself beyond what is in his power but this power over a mans life either to take it away from himself or to oblige another to take it away from him no man hath and therefore no man can justly be put to death by reason of such a vademony And this I hold to be the truer opinion though it seems that not the ancient Romans only but the Grecians and Hebrews also were of another mind who believed that even the sureties also might justly be adjudged to death as appears by that ancient story of Damon and Pythias And by those words of Reuben to his Father Jacob Jos Ant. lib. 2. cap. 3. Slay my two sons if I bring him not back unto thee * Gen. 42.37 whereunto St Augustine †Ep. 54. ad Macedonium See lib. 3. c. 4. §. 14. alludes where he saith That he that is the cause of anothers death is sometimes a greater sinner than he that kills him As when a malefactor leaves his surety to suffer that lawful punishment which himself should undergo as it falls out frequently with hostages as we shall shew anon Neither doth this power of obliging a mans self extend to mutilation for no man hath such a power over his bodily members as to cut them off unless it be for the conservation of the whole body But whatsoever any man hath a full and absolute power over he may engage for another and if he suffer thereby it is not by way of punishment but by way of equity which requires that what is promised should be performed Thus a man may forfeit his estate his liberty his goods
of it Prudence indeed as Aristotle notes is a Vertue proper to Princes but Justice belongs to men as they are men And therefore the reasons of their counsels as Princes are not to be communicated but the reasons of their actions as men may be proclaimed These things considered we conclude with Pope Adrian That where the Subject doth not only doubt the lawfulness of the War but by very probable Arguments is induced to believe that it is unjust especially if that War be offensive and not defensive he is bound to abstain Nay very probable it is That the Executioner whose Office it is to execute the penalty of the Law upon a condemned Malefactor should be throughly informed in the merits of his Cause either by being present at the whole Tryal or by hearing the confession of the person condemned that so he may be convinced that he whom he puts to death hath by the Law deserved it which in some places is observed Neither can there any more probable reason be assigned for that Hebrew Law whereby it was provided That when a Malefactor was to be stoned Deut. 17.7 1 Sam. 22.17 the Witnesses should go before the people and cast the first stone at him And for this Cause it was that the Kings Guards refused to fall upon the Priests of Nob at Saul's command being throughly convinced both of the sanctity of their Order and of the equity of their Cause And for this very reason it was that the third Captain 2 Kings 1.17 being sent by Ahaziah unto Elijah would not lay violent hands upon him And for the same reason it was that many publick Executioners amongst the Jews being converted to Christianity renounced their Offices as being very dangerous if we may give credit to the Martyrology Lib. 1. c. 7. and to venerable Bede V. Extraordinary Taxes to be exacted instead of obedience in this Case But in case the Subjects minds are not satisfied concerning the equity of the Cause by their Princes Declaration then 't is the Office of a good Magistrate rather to impose some extraordinary Taxes upon them than to compel them to serve him in his Wars unsatisfied especially when he may be supplied with men otherwise Now whether these Souldiers do serve him with a good or evil intention is no matter for a good Prince may make use of both as God himself doth of Satan and his Disciples as Instruments to bring about his own most Sovereign purpose or as a poor man may and doth make use of Jews and Extortioners to supply his present wants and that without sin Nay though there be no doubt of the lawfulness of the War yet it is not fit that Christians should be compelled to fight against their wills seeing that to abstain from War even then when it is in it self lawful hath always been required of Church-men and Penitentials to preserve them in the greater sanctity and is in all others many ways commendable When Celsus upbraided the Christians for refusing to go to war Origen apologized for them thus To those who being Vnbelievers would inforce us to fight for the Commonwealth and to destroy men we shall give this Answer That even their own Idol-Priests and those that attend upon the service of their reputed Gods do keep themselves unstained with humane blood that so they may offer up their Sacrifices for the whole Nation with clean and unpolluted hands Neither in case there should arise a War are these men to be listed in their Armies And if this be not done without reason how much more may they be said after their manner to fight who being Priests to the Most High God endeavour to preserve themselves free from bloud and rapine that so whilst others are polluted with spoil and slaughter they may wrestle with God himself by constant and incessant prayers for the welfare of them that make war justly and for the safety of them that govern righteously Apoc. 1.6 Wherefore Origen calls all Christians Priests by the example of the Holy Scriptures 1 Pet. 2.5 VI. When Subjects may justly engage in an unjust War But yet I believe that a Case may so fall out that in a War not only doubtful but manifestly unjust it may be just for Subjects in some measure to defend themselves For seeing that no enemy though prosecuting a just War can have any true and internal right to kill such Subjects as are innocent and no ways accessary to the War unless it be either for necessary defence or by consequence and not intentionally for such Subjects are not liable to punishment it follows That if it evidently appears that the enemy comes with a full purpose not to spare the lives of such hostile Subjects when with safety to himself he may then those Subjects may by the Law of Nature defend themselves which right neither doth the Law of Nations take from them neither will we say That such a War is on both sides lawful for we dispute not here concerning the legality of the War but of a certain and determinate action in the War which action though it proceed from one that otherwise hath a sufficient right to make war yet is unjust and may therefore be justly repelled The End of the Second Book Hugo Grotius OF THE RIGHTS OF WAR and PEACE BOOK III. CHAP. I. Of certain General Rules shewing what by the Law of Nature may be lawfull in War wherein also he treats both of Fraud and Lies I. The order and method of the Book following II. The first Rule whatsoever is necessary to the end is lawfull in War explained III. The second Rule A Right in War may arise as well from Causes subsequent as from the beginning of the War IV. The third Rule that in War some things may be done indirectly without injury which if by themselves and intentionally done were unlawfull with a caution V. What may lawfully be done to such as supply the enemy with things needful this explained VI. Whether in War Fraud be lawfull VII That Fraud in its negative act is not of it self unlawful VIII Fraud in its positive act is either by such outward acts as admit of several constructions or by such as signifie as it were by arguments fraud in the former sense lawfull IX Of that in the latter sense the question is difficult X. The use of words in another sense than that wherein we know they are understood not always unlawfull XI The form of a Lye as it is unlawfull consists in the repugnancy it hath with anothers Right this explained XII That it is lawfull to speak that which is false to Children and Madmen XIII So also when he is deceived to whom our speech is not directed and whom without speech we may lawfully deceive XIV And when we are assured that he to whom we speak is willing to be so deceived XV. And when he that speaks exerciseth that Supereminent Power that he hath over his own
prosecuted this rule is pertinent What is unlawful for a man to do is also unlawful for another to compel or perswade him to do whereof let these suffice for examples It is unlawful for any subject to kill his Prince or to deliver up a Town or Fort without the consent of a Council of War or to plunder his fellow Subjects And therefore it is likewise unlawful for me being an Enemy to perswade another Prince's Subjects remaining so to do it For evermore He that occasioneth another man to sin doth therein sin himself Neither is it sufficient to say That it is lawful for him that excites such a man to do such a villainous act to do it himself for it is true that it may be lawful for him to kill him but not to do it in that manner For that of St. Augustine is very true Nihil interest utrum ipse scelus committas an alium propter te admittere velis It matters not much whether a man do commit wickedness himself or cause another to do it for him XXII Yet if he offer himself we may make use of him But it is another rhing if such a person shall freely offer himself without any instigation from us for it is not unlawful for us to make use of him as an instrument to effect that which it is lawful for us to do as we have already proved by the example of God himself * Lib. 2. c. 26. §. 5. Transfugam jure belli recipimus saith Celsus that is It is no way repugnant to the Law of Arms to receive Renegadoes into protection and to make use of them Neither are such to be delivered up unless it be so agreed by the Articles of Peace CHAP. II. How Subjects Goods become liable to their Princes Debts I. Naturally no man is bound by the fact of another but the heir only II. Yet by the Law of Nations the Goods and Acts of Subjects are liable to the debts of the Prince III. An example whereof in the taking of men Prisoners IV. And in seizing their Goods V. Which is lawful when the Right is denied and when that is where is also shewed that though the thing be adjudged yet it neither gives nor takes away any mans Right VI. That the lives of innocent Subjects are not liable to satisfie the Princes debt VII The difference herein between the Civil Law and the Law of Nations I. Naturally none but the Heir obliged by the fact of another LET us now descend to those Rights which the Law of Nations grants unto us some whereof appertain to every War others to some particular kinds of Wars only Let us now begin with generals By the bare Law of nature no man is bound by the fact of another but he that succeeds to inherit his Goods for as soon as Dominion was first introduced it was likewise agreed on That all debts should pass together with the Goods to the next Occupant Videsupra B. 2. ch 21. § 19. according to that old Law-Maxime Transeat fructus cum onere Let the Estate and the Charge go together The Emperour Zeno was wont to say That it was contrary to natural equity that one man should be molested for another mans debt Hence arise those titles in the Roman Laws That the Wife shall not be sued for the Husband nor the Husband for the Wife the Son for the Father nor the Father or Mother for the Son Neither as Vlpian saith expresly shall any particular person be liable to the debts of the Commonwealth that is if the common stock be able to discharge them otherwise they shall not as individual persons but as they are a part of the whole De Benef. l 6. c. 20. If any man shall lend his money to my Country saith Seneca I shall not acknowledge my self his debtor yet shall I willingly advance my proportion not as my own debt but to disengage my Country And again Singuli debebunt non tanquam proprium sed tanquam publici partem What the Commonwealth owes every particular Citizen owes not as his own debt but as his part of the publick It was particularly provided by the Roman Laws That no one of the Villagers should be obliged for another of the Villagers debts and in another place That no ones possessions should be destrained for the debts of another no not for the publick And in Justinians Novels Reprisals are expresly forbidden and this reason added Because it hath no face or colour of justice that one man should be the debtor another enforced to pay the debt where also such exactions are called odious Thus did Theodorick in Cassiodore account it for one man to be kept as a Pledge or Hostage for another II. But by the Law of Nations Subjects are for their Prince Although these things be true yet by the voluntary Law of Nations it may be nay as it appears it hath been introduced That what debts soever any Civil Society or their Prince shall contract either primarily by themselves or be engaged for by not rendring unto others that which is their right all the Goods both corporeal and incorporeal of those that are subject to that Society or the Prince thereof shall be liable and stand bound to discharge Now this seems to be inforced by a kind of necessity for otherwise the Gap would be so wide as to let in all manner of injuries For the goods of Princes are but few and those not so easily taken as those of private mens which are many wherefore it is reckoned by Justinian amongst those Laws which custome had found requisite to be constituted for the relief of humane necessity Neither will this be found so repugnant to nature that it might not be introduced by custom and by the tacite consent of Nations seeing that Sureties do stand firmly bound for other mens debts without any other cause than by their voluntary susception only And very probable it is that the Members of any one Society may more easily be relieved one by another than Strangers can whose complaints though never so just are little regarded in many places Besides the benefit that ariseth from this obligation being common to all Nations they that find themselves aggrieved by it at one time may be relieved by it some other Nor is this custom in force only where there is a perfect and compleat War between Nation and Nation For what is lawful in such Wars appears by the very words of their denunciation Against the ancient Latine People Liv. lib. 1. and against the men of Old Latium I denounce and make war saith the Roman Herauld in Livy So likewise when the Heraulds demand the peoples consent they say Is it your will and pleasure that War be forthwith denounced against King Philip and his Macedonians and against all that are under his Government So also in the Decree it self The Roman people do proclaim War against the Hermundulian people and against the
make use of the treachery of others in all other cases doth not allow of it in this case is the very same that was before given in the case of poyson namely To restrain the dangers that attended Kings and Princes When one told Eumenes Just lib. 14. That his Enemies had hired one to kill him He would not believe that any General or inferior Captain would give so ill an example against himself And in another place the same Justine declares Just Lib. 12. That when Bessus had killed King Darius it was not to be endured for examples sake because it was the common cause of all Kings For as Seneca well observes Regi tuenda est maxime Regum salus A Kings chief care is the defence of Kings In a solemn War and amongst those who have a right to denounce a solemn War it is not lawful by the Law of Nations privately to kill an Enemy but where there is no solemn War it is by the same Law of Nations accounted lawful that is unpunishable Annal. l. 11. Tacitus denies peremptorily That the Plot that was laid against the life of Gannascus was at all Lib. 7. degenerous because he was a Traitor And Curtius was of opinion That the guilt of Bessus in killing Darius did make the treachery of Spitamenes appear the less odious for that nothing could be thought wicked that was done against a Regicide So likewise Ammianus concerning Florentius and Barchalba who had surprized Procopius the Traitor Si Principem legitimum prodidissent vel ipsa Justitia jure caesos pronunciaret si rebellem oppugnatorem internae quietis ut ferebatur amplas ei memorabilis facti opportuerat deferri mercedes If it had been their lawful Sovereign that they had betrayed the Laws had justly sentenced them to death but if he were a Rebel or a Disturber of the peace of his own Country as was said ye ought to give him a reward worthy of so memorable a fact Thus is Artabanes highly commended in Procopius for killing Gontharides as we may read at the latter end of the second of his Vandal History So perfidiousness or treachery against Thieves and Pyrates though it be not altogether blameless yet is it not by the Law of Nations punishable because committed against such as are Enemies to humane Society But what if they that are sent to kill an enemy privately do owe him no faith But not if he owe him no faith But not if the person sent owe no faith to him whom he is sent to kill nor are any ways obliged unto him Surely then by the Law of Nations it is lawful for them to kill him if they can even in his own Quarters Thus Pipin Father to Charles the Great of France attended with one only of his Guard passed the Rhine and killed his enemy even in his own Chamber The like was attempted by one Theodotus an Etolian upon Ptolomy King of Egypt which Polybius commends as no unmanly attempt Such also was that Heroick enterprize of Q. Mutius Scaevola who was in Plutarch's esteem A man accomplished with all vertuous endowments which attempt he thus defends Hostes hostem occidere volui I being an Enemy would have killed an Enemy Livy l. 2. Lib. 3. c. 3. Porsenna himself acknowledged this to be an act of true valour Valerius Maximus commends it for a brave and gallant resolution So doth Cicero in his Oration for Publius Sextus because to kill an Enemy wheresoever we find him is lawful both by the Laws of Nature and Nations neither doth it make any difference how many they are that either thus act or suffer Six hundred Lacedemonians we read of that with Leonides their King marched directly through the Camp of five hundred thousand of their Enemies even unto the Kings Pavilion Just l. 2. Zozimus l. 4. the same may be done by fewer A reward was promised by the Emperour Valens to him that should bring in the head of any Scythian whereupon a Peace immediately ensued They were not many that circumvented Marcellus and his fellow Consul and slew them Livy 27. Tacit. Hist l. 5. De Off. l. 1. c. 40. Jos Anc. 15. Lib. 4. Lib. 24. and that had likely to have killed Petilius Cerealis even in his Bed Ambrose highly commends Eleazer who seeing a mighty Elephant higher than all the rest assaulted him supposing that he that sate upon him had been the King Not much unlike was that attempt that Theodosius made upon Eugenius recorded by Zozimus Nor that of the ten Persians against the Emperour Julian attested by Ammianus Neither are they only that make these attempts excusable by the Law of Nations but they also that imploy them Those Roman Senators that were so renowned for their Wars Livy l. 2. were reputed the Authors of that gallant attempt made by Scaevola Neither is it to the purpose to object that such men being taken are put to exquisite torments for this happens not for that they violate the Law of Nations but because by the Law of Nations every thing is lawful that is done against an Enemy and all Conquerours are more or less severe according as it shall conduce to their future advantage for thus are spies dealt withal yet notwithstanding it is held lawful by the general consent of Nations to send out such as Moses did Joshua into the land of Caanan It is the custom of all Nations to kill spies saith Appian and that justly sometimes by such as have apparently a just Cause to make War but by others it is only lawful by that licence which the Law of Arms sometimes gives But if there be any that will not make use of such instruments though offered this proceeds rather from the Magnanimity and the confidence of him that makes the War in his own strength than from an opinion he hath that by the Law of Nations it is unjust XIX Whether ravishment be in such a War lawful The ravishing of Women is by the Law of Nations sometimes permitted in War and sometimes forbidden They that permit it do respect only the injury done to the body of an Enemy which by the Law of Arms they think ought to be subject to the Will of the Conquerour But others much better look not unto the sole injury done unto the body of an Enemy but to the very unbridled act of Lust which conduceth nothing either to the security of the Conquerour or to the punishment of the Enemy and therefore should be no more unpunishable in War than in Peace and this is the Law if not of all Nations yet at least of the better and more civilized amongst them Marcellus before he took Syracuse took special care of the preservation of the Chastity Aug. de Civit. Dei lib. 2. even of his Enemies And Scipio as Livy testifies told his Souldiers That it much concerned his own honour Lib. 26. and the honour of the people of Rome That
great or small there is no change of Dominion but by the Authority of a Judge CHAP. VII Of the Right over Captives taken in War I. That Captives taken in a solemn War are by the Law of Nations slaves II. Yea and their posterity III. That whatsoever is done unto them is unpunishable IV. Even the incorporeal things that belong to Captives may be acquired by War V. The cause why this was ordained VI. Whether Captives may make their escape VII Or resist their Lords VIII That this Right is not allowed in all Nations IX Nor now amongst Christians and what succeeds in its room I. Captives in a solemn War naturally slaves THERE is no man by nature servant to another that is no man in his primitive state or condition considered without any fact done by himself whereby his natural liberty is impeached as I have elsewhere shewed * Videlib 2. ch 22. §. 11. in which sense our Lawyers may be understood when they say that to be another mans slave is against nature But that this kind of slavery might at first be introduced by some fact done namely by some voluntary agreement or for some crime committed is not repugnant to natural justice as we have elsewhere also shewed But by that Law of Nations Book 2. ch 5. §. 27. whereof we now treat the word Servitude is of a larger extent both as to persons and as to its effects for as to the persons not only they that surrender themselves to the will of the Conquerour or that oblige themselves by promise so to do but all persons whatsoever that are taken in a solemn War as soon as they shall be brought within our Garrisons are altogether accounted Captives or Slaves as Pomponius hath well observed Neither is it to any purpose to plead that they never bare Arms against us nor declared themselves Enemies by any Hostile Act seeing that in this case Par est omnium fortuna Every mans condition is alike yea even the condition of those who by mere fate happen to be found in the Enemies Territories at such time as the War unexspectedly brake forth Lib. 2. Polybius speaking of Captives taken in actual Arms puts the Question thus Quid patiendum est his ut justa supplicia pendant What must these men suffer that their punishment may be just If any man say they may be sold with their Wives and Children he answers At haec belli lege etiam illis ferenda sunt qui nihil impii commiserunt But so saith he may they be by the Law of Arms who never did us hurt Philo notes the very same where he saith That many good men lose their natural liberty by occasions that are involuntary and merely accidental Dion Prusaeenses recounting the several ways whereby a man may get Dominion assigns this as the third When a man hath taken a Prisoner in time of War that never did any act of hostility and by that means makes him his slave Oppianus de piscatu l. 2. So Children being taken in War may be led away and made slaves Servius upon the first of Virgils Aeneads speaking of Hesione the Daughter of Laomedon whom Hercules slew as he was going out of Troy saith That she was taken Prisoner by the Law of Arms and given to Telemon Hercules his companion And in another place he tells us That the Grecians refused to deliver her back to the Trojans saying she was a Prisoner of War II. Yea and there posterity Neither are the persons of Men and Women only thus taken made slaves but their posterity for ever for whosoever is born of a Woman after her Captivity is a slave born for Partus sequetur ventrem The Child will follow the condition of the Mother Martianus accounts all those for slaves by the Law of Nations who are born of Bond-women And Tacitus speaking of the Wife of Arminius a German Prince who had been taken Prisoner by Germanicus saith That she had Vtrum servitio subjectum meaning that whatsoever Children were born of her were bond-slaves III. Whatsoever is done unto such is unpunishable The effects and consequences of this Right are infinite so that there is nothing so unlawful but the Lord may do it to his slave as Seneca the Father notes * 1. Controv. 5. there are no Torments but what may with impunity be imposed on them nothing to be done but what they may be forced to do by all manner of rigour and severity so that all kinds of cruelty may by the Law of Nations without controul or appeal be exercised upon Captives were it not that this licence is somewhat restrained by the Civil Law It is universally indulged by all Nations to the Lord to have power of life and death over his slave saith Cajus the Lawyer but he tells us withal That the Roman Laws did limit otherwise unbridled power within their own Territories Quid non iustum Domino in servum What may not the Lord do unto his slaves saith Donatus upon Terence yea Andr. Act 1. Scen. 1. not only the person but all that is taken with him are lawful prize Ipse servus qui in potestate alterius est nihil suum potest habere He that is a slave saith Justinian Libro omnem virum bonum liberum esse and under the power of another can have right to nothing that was his before So likewise Philo He that is a Captive loseth his right to all other things no less than the power over himself IV. Even the things incorporeal of the slave are transferred to the Lord. Hence then their Opinion may be confuted or at least restrained who hold that things incorporeal cannot by the Law of Arms be acquired * Lib. 6. cap. 9. 2. Val. Maximus records it of Scipio Nasica That whereas being Consul he was taken prisoner by the Carthaginians at Lipara and so by the Right of War had lost all yet fortune afterwards smiling upon him he recovered all and was again created Consul It is true that primarily and by it self things incorporeal cannot by War be gained but they may be lost as to the person whose they formerly were But yet we must here except all things that do proceed from some singular propriety in the person taken which by no means can be alienated as the right of a Father to his Son for such Rights if they do not remain with the person are altogether extinct V. The reason why this Instituted Now all this unlimited Power is by the Law of Nations granted for no other Cause than that the Conquerour being allured by so many advantages might be willing to forbear that utmost cruelty which they may lawfully use by killing their Captives either in the heat of fight or afterwards in cold blood The name of servant as Pomponius tells us did at first arise from the custom of Generals who sold their Captives and thereby preserved them from being slain Servi quasi servati
That they may be the more willing to forbear I say for it is no bargain or agreement whereby they stand obliged to save them if we respect the Law of Nations but a perswasive argument drawn from profit it being far more beneficial to the Conquerour to sell his Prisoner then to kill him And therefore he hath the same power to transfer his Right in his Captive to another as he hath to assign over unto others the Right and property he hath in any of his own Goods or Chattels This Power is also extended to the Children that are born after Captivity because if the Conquerour had used his power to the utmost they had not been born From whence it follows That the Child that is born before that Captivity in case he be not taken Prisoner remains free Therefore by the Law of Nations the Children born of such Captives follow the Mothers condition because their Chastity is not provided for by any Law nor is there any strait guard kept upon them and therefore no presumption how great soever is sufficient to prove who is the Father And thus is that of Vlpian to be understood Lex Naturae haec est ut qui nascitur sine legitimo matrimonio matrem sequatur The Law of Nature is this That he that is born without lawfull marriage should follow the condition of the Mother that is General custom grounded on some Natural Reason hath moulded this into a Law * See second Book ch 13. §. 26. abusively sometimes so taken as we have already elsewhere shewn they that are born out of wedlock should retain the name and quality of the Mother and not of the Father because of the certainty of the one and the uncertainty of the other But that this unlimited Power over Captives was not introduced by the general consent of Nations in vain we may collect from the usual practice of Civil Wars wherein all Prisoners are commonly put to the sword because they cannot be sold for slaves Lib. Hist secundo tertio which was well observed by Plutarch in the life of Otho and by Tacitus who speaking of the Captives taken at Cremona saith Irritam praedam militibus fecerat consensus Italiae That it was agreed throughout all Italy that no quarter should be given whereby no booty came to the Souldiers by the sale of Prisoners Moreover whether the Prisoners taken should belong to the people or to them that take them must by what hath been said of the spoil be determined For the Law of Nations hath in this case equalled the condition of men with goods So Cajus the Lawyer Those things that are taken from the Enemy are by the Law of Nations theirs that take them so that even such as were free men are by this Law reduced into bondage VI. Whether such as are taken may fly Neither can I concur in Opinion with those Divines who hold That Captives taken in an unjust War or such as are born of them are obliged in conscience not to make their escape unless it be to their own Garrisons for herein I believe they err surely in this lies the difference if they can fly and make it good to their own Garrisons whilst the War lasts See Chap. 9th of this Book § .. 5 6. Plin. Nat. Hist lib. 7. c. 28. by the Right of Postliminy they recover their liberty and all things consequent to it Of M. Sergius Pliny reports that being twice taken by Hanibal he both times made his escape out of his chains But in case they make their escape to others or unto their own Country after the Peace made being re-demanded they are to be delivered But yet from hence it follows not that the Captives themselves are bound in conscience to return for there are many Laws which bind only as to the outward judgement which do not at all restrain the conscience and such are these of War whereof we now discourse neither is it much to the purpose to say that the very nature of Dominion doth of it self induce such an obligation because there being many kinds of Dominion possible it is that such there are as are of force only in humane judgement and so long only as the coercive Power lasts which is frequently seen in other kinds of Right Such in some sort also is that Law that makes void some Testaments because forsooth they want some formalities which the Civil Law requires whereas the more probable Opinion is that what is bequeathed by such a Testament may with a good conscience be retained so long at least as nothing appears to contradict it And not much different is his Right who hath according to the Civil Laws unfaithfully prescribed to anothers Estate for by the judgment of those Laws even this mans Title shall be defended untill it be made void by another sentence of the same Law And thus is that riddle of Aristotles resolved Is it not just saith he that every man should enjoy his own Lib. 2. de cavillat c. 5. but whatsoever the Judge hath according to his understanding decreed is by Law confirmed though in it self it be faâ—se therefore will the same thing be both just and unjust But in this question of ours there is no cause imaginable why the Nations should respect any other Right than that which is external and meerly humane For the Right of laying claim to a Captive of forcing him of binding him and possessing what he hath or can do is of it self motive sufficient to perswade the Conquerours that it is a greater advantage to them to keep them alive than to kill them But in case this cannot move the Conquerours surely no obligation that can be laid upon the conscience can do it which notwithstanding he may impose by requiring either his verbal or sacramental engagement if he think it necessary Yet if the Captive can make an escape and carry with him some Goods Bemb lib. 10. his Conscience cannot be charged with theft so as he carry away nothing but what was before his own In such Laws as arise not out of natural equity but are purposely made to avoid a greater mischief we must not rashly admit of such an interpretation as makes that act to be sinfull which is otherwise lawfull Nihil interest quomodo captivus reversus est utrum dimissus ☜ an vi aut fallacia potestatem hostium evaserit It matters not much saith Florentinus which way a Captive gets loose from his enemy whether he be freely dismist or make his escape either by force or fallacy Because the right of holding a man Captive is so a Right that in another sense it is for the most part an injury for which reason Paulus the Lawyer calls it a Right as to some certain effects but an injury as to the intrinsick nature of the thing it self From whence this also appears That a man being taken in an unjust War and brought within the Power of the
divide the Body of the Debtors if insolvent between themselves which Law common custom did abhor So likewise Cicero in the third of his Offices Aliter Leges De Offic. l. 3. aliter Philosophi tollunt Astutias Leges quatenus manu tenere possunt Philosophi quatenus ratione intelligentia The Laws take away fraud one way Philosophy another the former by pinnacling the hands the latter by clearing the understanding and informing the judgment II. This applied to what the Laws permit To the same puâ—pose is that of Marcellus in his Oration to the Roman Senate That which comes here to be discust saith he is not what I have done against the Syracâ—sians for what ever I have done against them as enemies the Law of Armes will justifie me in but what those men being overcome ought in reason and equity to suffer Aristotle discussing this Question Whether Captivity arising from War be just seems to owne this distinction Pol l. 1. c. 6. Vid. sup c. 4. § 2. Some saith he looking only at that which the Law permits for the Law it self also is something that is just do hold That Captivity in War is just but yet they deny it to be so absolutely because possible it is that the cause of that War may be unjust Others there are saith Seneca that create unto themselves a Right by Arms in anothers Territories where these two words a Right and in anothers Territories do seem no less to clash than the Arms whereby that Right was got But that is there called Right which the Law of Nations permits only Consonant whereunto is that of Thucydides in that Oration which the Thebans made to the Roman Senate As for those saith he that were slain during the Conflict we complain not for this was in some sort just Nay the very Roman Lawyers themselves do often call That the Right of Captivity which in another place they term an injury and place it in oposition to natural equity And Seneca respecting that which often falls out namely when the War is unjust accounts the very name of Slave as a badge of injustice The Italians in Livy Ep. 32. detaining from the Syracusians that which they had gained by War are said to be obstinate in the detention of that which they had gained unjustly And Dion Prusaeensis having declared such Captives free as could make their escape home addes this As being unjustly brought under bondage So Lactantius observes That the Philosophers in all their Discourses concerning Military Affairs always fitted their Orations rather to the publick customs of the Age they lived in than to justice and true valour And St Augustine in an Epistle of his to Marcellinus tells him Ep. 4. De diversis Ecclesiae Observ That if in this World the Precepts ef Christianity were duly kept no War could be made without some mercy And in another place Among the true Worshippers of God even their very Wars are peaceable III. What is done in an unjust War an unjust as to internal Justice We conclude therefore in the first place That the ground of the War being unjust although it be solemnly undertaken as to the manner yet are all those acts that are done in it unjust if we understand injustice not as it is repugnant to the Law of Arms but according to its natural acception as it is repugnant to right reason equity and conscience So they that shall knowingly either commit such acts or assist in the doing of them are included in the number of those 1 Cor. 6.10 who without repentance cannot enter into the Kingdom of Heaven for repentance if true necessarily requires from such as have time and estates sufficient That he that hath done wrong either by killing men spoiling Goods driving away Cattel or the like should make satisfaction Es 58.6 And therefore did God himself renounce the solemn Feasts of the hypocritical Jews Numb 5.6 because they did not suffer their Captives unjustly taken to go free And the King of Niniveh proclaimed a Fast throughout the City Jonah 2.10 and commanded all his Subjects to turn every one from his evil way and to empty their hands from all things got by rapine and violence as being by the very dictates of natural reason taught to acknowledge That without restitution all their humiliations were but vain and fictitious Non differtur ultionis sententia si non redduntur universa Hier. Vengeance will not be long delayed unless restitution be made to the full saith Hierome with whom agrees St Augustine If that wherein we have sinned be not restored being in our power we do not repent but dissemble Neither is this the judgment of Jews and Christians only Turcicor 5 c. 17. but of the Mahometans also as Leunclavius informs us IV. Who and how far forth they are obiged to restitution Now they that are obliged to make restitution according to what we have elsewhere delivered in general are in the first place the Authours of the War whether as having the supreme power or as counselling and perswading thereunto and these are bound to make satisfaction as well for all damages that are usually done in War as also for all those unusually done if they were done by their either order or perswasion or by their permission in case it were in their power to have hindred it Thus also are Captains bound to make restitution for those things that are either spoiled or taken away by any under their Command yea and the whole Army in general that shall run headlong to any one common outrage as to fire a Town or the like and for particular acts every particular Souldier shall satisfie for that loss whereof he was the Authour either solitary or concurrent with others V. Whether things taken in an unjust War are to be restored by him that took them Neither may we herein admit of that exception which by some is brought of such as are only Auxiliaries if they be any ways guilty of the crime To oblige any man to restitution without guilt the bare crime sufficeth Some also are of opinion that though the War be never so unjust yet the things taken in it are not to be restored because both Parties when the War began were prâ—sumed to agree to this That their Goods should be theirs that could take them But on the contrary it cannot easily be granted that any man will rashly give away his Right and the nature of War is much different from that of Contracts But to the end that Nations being once at peace should rest so and not involve themselves in endless War against their will it was thought sufficient to introduce this external Right of Dominion See Book 2. Chap. 11. whereof we have already spoken which notwithstanding may very well consist with that internal obligation to restitution Nay these very Authours seem to assert as much in their Discourses concerning the Right of taking Prisoners
wherein as Christians we stand obliged as in case it appear that the Booty so taken doth not impoverish the Commonwealth or the King that maintains the War or those particular persons that are in actual Arms against us but rather such particular persons as are innocent who likewise are thereby reduced into so miserable a condition that in case we should cast those who are privately indebted unto us into the like we should be thought unmercifully cruel Whereunto if we likewise add that the spoil we take from these contributes little or nothing either to the finishing of the War or to the enfeebling of the Enemies strength it will easily convince us that it would ill become an honest man much less a Christian to make an advantage to himself by the sole infelicity of the times For which very thing it was that Plutarch so highly blamed Crassus saying Pleraque horum ex igne belloque rapuit nihil magis lucro habens quam communes calamitates The greatest part of whose riches he gained by Fire and by War raising his private fortunes by nothing more than by publick calamity V. How a private War may be mixt with a publick But it sometimes happens that by the occasion of a publick War there ariseth a private as if a Man fall by accident amongst his Enemies and is thereby in danger of his life or Goods in which case such means as we have already granted * Lib. 2. c. 1. may lawfully be used in defence of our lives and fortunes We read that sometimes in War private profit is warranted by publick Authority as when a man having sustained some extraordinary damage by the Enemy obtains of his Prince a Commission to repair his losses by what he can get from the Enemy which also is to be limited in the same manner Lib. 3. c. 2. as pledges and such like things are that are left in gage VI. How far he stands obliged who without command hurts an Enemy But in case any Souldier or others shall in a just War set fire to an Enemies House or destroy his Fields or commit such and such like Acts whereby the Enemy is damnified without special order or command from his Superiours whereunto we must add unless it be in case of necessity or for some other just cause That man according to the opinion of our best Divines stands obliged to make satisfaction I have here added what they have omitted unless it be for some other just cause because if there be any such cause he may haply be bound to answer for it to his own Prince or State whose Laws he hath transgrest but not to his Enemy to whom he hath done no wrong Not much unlike was that Answer which a certain Carthaginian made to the Romans who demanded That Hannibal should be delivered to them We saith he are not to dispute with you Whether Saguntum were besieged by the private command of Hannibal or by the publick Decree of the Carthaginian Senate but whether it were justly or unjustly done for it belongs unto us only to call him to an account being our Subject whether he did it by his own Authority or by ours This only concerns you to enquire Whether it were lawful to be done by that League which we have made with you CHAP. XIX Concerning Faith to be kept between Enemies I. That faith is to be kept with all sorts of Enemies II. The Opinion That faith is not to be kept with Thieves and Tyrants refuted III. This Argument That such deserve punishment answered being not considerable when we treat with them as such IV. Nor will it avail to urge That the promise was extorted through fear if he that made the promise was not himself affrighted V. Or if the promise were confirmed by Oath though with men such a violation is not punishable VI. This fitted to rebellious Subjects in Armes VII A notable difficulty handled concerning promises made to Subjects in respect of the Sovereign Power Where it is shewed VIII That such promises may be confirmed by the Oath of the City IX Or it may be made to a third Person on the behalf of such Subjects X. How the Government of a State may be changed XI That by the Law of Nations the exceptions of fear appertain not to a solemn War XII This to be understood of such a fear as is acknowledged by the Law of Nations XIII That faith is to be kept even with such as are perfidious XIV But not if the Conditions are not fulfilled Or if either Party refuse to stand to any part of the Agreement XV. Nor if the thing promised be counterballanced by a just Debt XVI Though that Debt be due upon another account XVII Nor if the Promiser be otherwise damnified to the like value XVIII Or if the value of the thing promised be due by way of punishment XIX How these take place in War I. That faith is to be kept w th Enemies of all sorts WE have already shewed What and how much may lawfully be done in War simply and in it self considered We are now to consider what and how much may be done as considered in relation to some foregoing promise namely Concerning the faith which Enemies ought to keep one with another It was notably said by Silius an Italian Poet concerning a Roman Consul Optimus ille Militiae cui postremum primúmque tueri Inter Bella fidem He amongst Generals the best praise deserves Who first and last in Wars his faith preserves Xenophon in his Oration concerning Agesilaus from his Example concludes thus So great and excellent a thing it is for every man but especially Generals to be just and to be so accounted in the performance of their Oaths and Promises Leuct 4. So Aristides In the preservation of Peace and of all other publick Agreements they are ever most to be regarded that are most just There is no man as Cicero well observes but approves of and commends that affection of mind by which no profit is sought after but rather faith is preserved against profit It is the publick faith only as Quintilian the Father rightly observes that makes Truces even among armed Troops and that conserves the Right of surrendred Cities Faith saith the same Quintilian Lib. 2. c. 29. is the strongest and most indissoluble Bond of humane Society Sacra laus fidei inter Hostes Its reputation is great even amongst Enemies Fides sanctissimum humani pectoris bonum Faith saith Seneca is the most precious Ornament of the rational soul the best gift that God bestows upon Men the strongest support of humane Society It is the Cement that binds up all Traffick and Commerce between man and man Qua sine non Tellus Pacem non Aequoâ—a norunt Justitiae Consors tacitúmque in pectore Numen without her No Peace is firm either by Land or Sea She 's Justice's Mate an inward Deitie The Romans placed her in their Capitol next to
being granted let us now examine by whom and upon whom an invasion being made the Peace is dissolved XXIX What if we are invaded by the Associates of those that are at Peace with us There are some of opinion That if they that shall forceably invade us were but their Associates with whom we have made Peace that Peace is broken I deny not but that such a League there may be made not properly That one man should be punished for the fact of another but because that Peace seemed not to be fully and absolutely made but rather under some Condition partly potestative and partly casual And yet that such a Peace should be made unless it evidently so appear is scarce credible because it is irregular and inconsistent with the common design of those that make Peace Wherefore they that do actually invade being no ways assisted therein by others they only and not their Associates shall be judged the Peace-breakers and against these it shall be lawful to make War Paus lib. 9. Contrary unto which the Thebans did sometimes plead against the Associates of the Lacedemonians XXX What if by their Subjects and when it may be imputed unto their Prince But what if they be Subjects that make such an invasion without publick Warrant or Authority Then we ought to consider whether such a fact of private men be publickly approved of For the better understanding whereof three things are requisite as elsewhere we have declared * L 2 c. 21. § 2 eq First The knowledge of the fact secondly A power to punish thirdly A neglect in them that could and ought to have done it Their knowledge may easily be evinced if the fact be publick and declared A power to restrain or punish it is to be presumed unless it appears that they are Rebels The neglect will appear by the space of time which Cities usually take to punish Malefactors and such a neglect is equivalent to a publick Command Neither is that of Agrippa in Josephus otherwise to be understood in saying That the Parthian King had broken the Peace for suffering his Subjects to march armed against the Romans XXXI What if those Subjects fight under the command of another Prince Another Question is here usually started Whether the Case be the same if Subjects take Armes not by themselves but under the Command of others Surely the Cerites in Livy do thus excuse themselves †Lib. 7. That their Subjects took Armes without any publick Warrant or Commission from them The like defence do the Rhodians make for themselves * Aul. Gel. l. 7. c. 3. But that opinion which savours more of truth is That neither should this be permitted unless it appear by very probable Arguments that it hath been otherwise customarily done as it is sometimes used now amongst us in imitation of the ancient Aetolians amongst whom it was accounted lawful Ex omni Praeda Praedam sumere To take Armes on either side Which custom saith Polybius was of that force Lib. 17. That although they were not at War themselves but their Friends or Associates only yet it was lawful for the Aetolians without any pubâ—ick Decree of their Senate to list themselves on either side and consequently to pillage both Parties This is likewise the Testimony that Livy gives of them They suffer their Youths without any publick Order to serve in the Wars with their Associates or against them so that oft-times in two contrary Armies the Aetolians serve as Auxiliaries on both sides Thus the Aetrurians of old although they denyed aid to the Vcjentes Livy l. 5. yet if any of their Youths would serve them voluntarily they would not hinder them XXXII What if our Subjects be invaded Again the Peace is broken not only when the whole Body of a State or Kingdom but if any of its Subjects shall by force of Armes be invaded unless there be some new Cause of War given For for this Cause is every Peace made That the Subjects on both sides might live secure it being an act of the City or Commonwealth in behalf of the whole and of every of its parts yea and although there were a new cause of War yet by Peace it shall be lawful for every man to defend both himself and whatsoever is his By Armes to defend our selves against Armes saith Cassius is that Right which Nature hath given us Which Right cannot easily be presumed to be renounced amongst Equals But to revenge our own private Quarrels or to recover by force what hath been taken away is not lawful unless judgment be first denied us for this will admit of delay but that of none But if Subjects make it their continual trade of life to rob and pillage contrary to the Law of Nature so that it be apparent that what they do is contrary to the will of their Governours and that no Court of Judicature can reach to punish them such as are Pyrates Robbers or the like from these as if they were surrendred up unto us we may both recover our damages and revenge our selves of them by force of Armes But to do the like to those that are innocent for that cause is to break the Peace XXXIII If our Associates be invaded the Peace is broken Although we are not as yet invaded yet if our Associates be the Peace is broken that is if they be such as are comprehended in the Peace as hath been already proved in the Case of the Saguntines †See Book 2. Ch. 16. § 13. This the Greeks in Xenophon alledge * Graec. Hist l. 6. Omnes nos omnibus vobis juravimus We have all of us sworn this Peace to all of you Yea though those Associates do not contract for themselves but others do in their behalf it is all one in case it do sufficiently appear that they have ratified it But so long as this is uncertain they are to be held as Enemies But for the rest of Associates that are not expresly comprehended in the Peace and for our Kinsmen and Allies that are neither Subjects nor nominated the Case is otherwise Neither can an invasion of them amount to the breach of Peace But yet it will not hence follow as we have elsewhere said That it is unlawful for us in this Case to make War but that the War so undertaken is not grounded upon the breach of Peace but upon a new cause given XXXIV The second way of breaking a Peace The Peace is also broken as we have said before by doing contrary to that which is expressed in the Peace Where under the word doing we are to comprehend the not doing of what we ought to do and when we ought to do it XXXV All the Articles of Peace are alike to be observed Neither may we here admit of any distinction between the Articles of Peace as if some were of greater concernment than others For what is thought worthy to be inserted is also
just War it may be lawfully acquired 524. distinguisht from the manner of holding 42. over some part of the Sea without any other propriety may be possest and how page 91 92 93 Empire and Dominion when they cease 141 142 143. not changed with the imperial seat page 144 Empire may be acquired either so far as it was in the conquered King or absolutely and so despotical page 485 The Empress Irene's design to divide the Empire between her Sons page 127 Enemies to be buried page 216 Enemies are they that denounce War the rest are Thieves and Robbers and Pyrates page 450 An Enemies Country with and how far it may be wasted page 511 c. To Engross the Fruits of one Nation how far lawful page 87 To Enrich our selves with other mens losses unnatural page 147 Ensigns of Sovereignty granted to a Prince of a free People page 41 42 Ensurances void either Party knowing the Goods either to be safe or lost page 164 Epicurus taking away Religion left nothing to Justice but an empty name page 386 Equal Rates set upon things to be exchanged ibid. Equality in Contracts what page 159 Equality what takes place in Acts merely or in part beneficent page 160 Equity takes place where the Obligation is in the literal sense grievous and intolerable page 197 198 Equitable Courts necessary 197. in what Cases especially ibid. Equity the Corrector in such Cases wherein the Land by reason of its generality is deficient ibid. Equity what page 553 Equivocal expressions not admitted but upon great occasions 440. especially in Leagues page 191 Errour whether it makes void an Act 151. in some Points of Religion whether punishable page 391 392 An Errour or mistake unknown to either of the Contractors at the Contract-making must be rectified page 160 Of Errour the punishment is to be taught page 392 An Escape made by a Captive he recovers all he lost by Postliminy page 488 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 534 Esseni swear not 220. they wholly abstain from War page 430 Evangelical Precepts whether comprehended in the Law of Nature page 16 Evidences no part of the substance of Contracts page 199 Of Evil the least to be chosen 411. hath the appearance of good page 488 Excursions above ten miles from the Camp makes what is taken theirs that take it page 473 Executioner to be satisfied in the Malefactors crime page 430 431 Exheredation 124. a Son exhederated whether any thing be due unto him ibid. whether a King may exheredate his Son page 130 Exiles their City hath no power over them 115 to inhabit any other Country lawful page 85 Extremity of our Right not to be exacted by War page 518 F. BY the Fact of another none naturally obliged but the Heir page 446 Factors and Masters of Ships how far bound page 154 Faithfulness the foundation of Justice page 151 Faith given to Subjects or Slaves though Rebels as such must be kept page 539 Faith sometimes taken for a full perswasion of the mind page 411 Of Faith whatever is not is sin ibid. Faith to be kept with the faithless 173. with Pyrates and Thieves upon Oath ibid. Faith given by Signs equivalent to Oaths 175. its breach though by Oath not punishable by humane Laws and why 538. sometimes given by silence 569. to be kept with Enemies of all sorts 536. even with Pyrates and Tyrants and when 537. Objections answered page 538 Faith not broken by a generous man though provoked 542. to be kept with the perfidious 540. and when not page 541 Whether private men may be compelled to keep their Faith with an Enemy page 557 558 Faith given in War by private men to be kept even to Pyrates Robbers and Tyrants though given but by Minors page 538 Fides Attica page 498 To preserve Faith an Exhortation to Kings page 571 False speaking to some Persons better admitted than equivocations c. page 444 False speaking to Infants and Mad-men no Lye page 442 Falshood of Joseph and the simulation of Solomon no frauds page 443 Falshood may be sometimes expedient for the common safety ibid. False Prophets page 392 Fate how understood in the Roman Laws page 472 473 Father of a Family what it signifies page 521 Fathers have as much power over their Children as over Slaves page 104 The Fathers the more Ancient the more Authoritative Pref. xix in them three things observable page 25 26 c. A Father when he hath power to sell his Son 104. forfeiting his Estate his Children may be said to suffer but not to be punished page 400 Fear uncertain no ground of War page 71 406 Where the Fear of loss is greater than the hopes of gain none will adventure page 419 By the Fear of War what is gained cannot be recalled yet from a Thief it may if not bound by Oath ibid. Fee-farms and Copy-hold why first granted 129. this done first by the Germans page 38 Ferus and Erasmus great Lovers of Peace Pref. xii their Opinion concerning War refuted ibid. Feuds 51. Empires may be so held from another it implies Obligations personal or real but takes away no Right of Empire or Dominion page 52 To Fight for Pay only unlawful but to receive Pay being lawfully called to fight lawful page 426 No Fighting against Famine page 420 Firing of Houses in War lawful page 434 Fish in Ponds Deer in Parks held in propriety page 135 Fish and Fowl though naturally common yet may the Owner of the Land or Water forbid their taking page 81 Flight from Persecution in what Case lawful page 61 By Flight they that would save themselves in a Siege by the Hebrew Laws might page 508 Force to repel with force naturally lawful 14. not all unjust 12 13. Force for punishment lawful page 434 By Force and Armes to be thrust out of possession what it signifies page 196 The Form of a Commonwealth how changed 540. of denouncing of War page 70 71 Foreigner compared with a Proselyte how they differ page 8 Forts of Friends weakly guarded may to prevent danger to our selves be surprized by us page 82 Frailty humane and Fortunes instability great Motives to clemency page 504 Frater quasi fere alter page 417 Fraud consists in acts negative or positive 438. whether in War lawful 337. in its positive Acts distinguisht if by acts into simulation if in word into a lye page 338 A Free-pass how to be interpreted 560. it extends to Persons Goods and Attendants page 561 Freedom is either Personal or Civil page 42 A Free-pass dyes with him that gave it 561. if during pleasure only how to be understood ibid A Free-State if power over its Subjects page 201 A Free Nation is not subject to another page 49 French Kingdom anciently Elective 144. their custom to avoid Civil War 414. distinct from the Romans 144. divided into Eastern and Western ibid. their Succession Agnatical 130. their custom concerning Captives page 484 Friends to be assisted if with
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
may have 482 483. to make is due by the Law of Nature 120. they may be made by Strangers by the Right of Nature ibid. By Testaments Kingdoms Patrimonial may be bequeathed but others not but by the Peoples consent page 43 44 To hinder a man from making his Testament obligeth to satisfaction page 201 Thebaean Legion page 62 93 428 Theseus the Scourge of Wickedness page 384 Theft prohibited by the Law of Nature 5. in extreme necessity lawful with some Conditions 81 82. nocturnal and diurnal the different punishments and why 74 75. against it severe Laws sometimes mitigated through Charity page 75 76 It is Theft to require more or give less in measure weight or number than was contracted for page 160 Theft not punishable by death by the Mosaical Law 76. nor by the Civil Law is approved though tolerated ibid. A Thief nocturnal may be killed in what Case 32 75. to kill whether the Civil Laws do only tolerate or justifie page 76 Thieves live not without Laws Pref. ix and Pirates have no Right of Embassages page 206 No Theft to spend somewhat of anothers to procure him a greater profit page 442 Things thus standing how and when understood 151. stolen lose not their property 97. that have no Owner the Germans give their Prince 135. given as lost cease to be ours 98. taken from an Enemy are theirs that take them though first taken from friends 470 471. taken in a just War how far ours by the Law of Nature 468. moving and moveable taken by private acts in a just War are lawful prize 472 473. useless in War may be spared 514. sacred and religious received by Postliminy 492. not the Enemies not gained by War 470 c. to defend justifies interfection naturally 74. how far lawful by the Gospel 75. twice sold whose Right is best page 161 Things to restore taken for any satisfaction as things to take away understood for any injury 456. lose not their Dominion till within the Enemies Garrisons 492. of Enemies to spoil how far lawful page 411 Time out of mind what 99. long out of possession of what force to prove dereliction page 98 Time and place of Battel alway proclaimed page 445 Titles none to be set on foot after four ages 99 100. to Empires should be fixt 99. originally naught cannot by any Postact be made good how understood page 100 101 Tolls for importation of Goods in what cases lawful 84 85. for passing Rivers and Bridges ibid. by Sea may be lawfully taken page 93 To Traffick a Right common to all 86 it unites Countries remote ibid. to hinder it with such Nations unjust page 84 In Traffick by Companies how the gain is divided page 164 Traytors have no Right of Embassies 206. against such and publick Enemies every man is a Souldier 65 374. to kill not punishable by the Law of Nature page 462 463 Of Treason against our Country the danger not past a Son may accuse his own Father page 209 To Treason the next degree is to harbour Traitors page 396 Travellers may for a while reside in any place page 85 Treasures found whose it is 136. the publick not toucht by Mark Antony without the consent of the Senate page 59 Treachery against Robbers and Pyrates when and why not punishable 463. in a solemn War lawful unless by Poyson or private Assasinatinn page 462 Tree of Life what it signified and of knowledge of good and evil page 79 Tribunals wanting the Law of Nature takes place page 122 Tribunes how made inviolable page 539 Tributes and Taxes due to Kings 3. to maintain Souldiers page 20 Tributary Associates page 57 Trifles not worth contending for page 21 22 23 Truce what a Time of Peace or War 557. when it begins to oblige and when it ends 558 559 broken on one side or ending needs no indiction of War 558 560. continuing no place to be surprized nor received that would revolt 559. what may â—awfully be done within that time 559 560. it may be made by inferiour Commanders 565. being ended whether they that were forceably detained during it have a Right to return page 559 Truths some easily assented unto others not but by three or four consequences page 385 Truth the same spoken or sworn page 175 Truth only to be spoken in Markets page 441 Tyrants worse than Hangmen 426. their scourge Hercules 384 with them Faith to be kept if given as to such page 537 538 V. VAlentinian's answer to his Army page 40 Valor cannot prevail against Nature nor dwell with Famine page 119 The Valerian Law in Rome distinguisht from Solons in Athens page 65 The Value of things from whence page 161 The Vanquished to be treated gently 527. which may be done either 1. by mixing them with the Conquerours 525. 2. by taking nothing from them but what disturbs Peace 524. 3. by leaving them their own Empire 525. excepting some strong Garrisons 526. 4. permitting their own Laws Magistrates Religion with caution for the true Religion 527. 5. by imposing some tribute on them 526. or some part of their Government page 525 Variety of manners occasioned by the various mixture of the Elements page 375 Venome to use unlawful in War page 461 462. See Poyson Veracity a Guide to all Vertues page 444 Vertues some require moderation of affection others not Pref. xvii what the Law enjoins the Gospel requires in a larger measure page 10 Vices what not to be punished 374. of things contracted for to be made known and why page 159 Victor who 552. his duty towards them that yield page 554 Victory disdained unless got by Manhood 445 sometimes the gift of fortune and not always the reward of Valour 504. being assured to waste things is madness 513. gained by fraud more honourable than that gained by force page 437 438 Virgins Milesian page 218 Virgins not to chuse themselves Husbands page 107 Visible what is not hath no certain Right page 100 That Universals have a power to oblige singulars 113. their Debts how far they bind their Members page 545 Unborn the Right defended by Law lost by prescription page 187 Uninhabited places are the First Occupants page 85 Unjust that is which is repugnant to humane Society page 2 Unjustly what is denyed may justly by War be taken page 86 Unjust if the War be what ever is done in it is internally unjust page 495 Unjust Wars are no better than great Robberies page 70 To do Unjust things and to do Unjustly how distinguisht page 428 429 Unlawful things none to be urged unto page 446 Untruth whereby a By-stander is deceived no Lye page 441 Unwillingly what is done deserves pardon page 500 Votes in a society where divers claim unequal shares how to be reckoned page 114 Usurpation what 97. of no force between Kings of divers Nations ibid. Use common its Authority in expounding Laws page 25 The Use of things Natural page 78 79 The Use of a thing consisting in abuse
is to be esteemed beyond the thing page 162 163 To Use a mans help being offered is lawful though to him that offers it it be unlawful page 446 Usurper who page 405 An Usurper not to be killed but obliged by private men by whom he may 64 65 66. his act binds not a lawful King 180. but in some Cases his Subjects page 64 65 Usura Foenus how distinguisht by the Roman Laws page 163 Usury by what Law forbidden 162. under it what gain falls ibid. concerning it what the Civil Law hath determined 164. what the Law of Holland ibid. W. WAR and Arms distinguisht Pref. vi when justly made Pref. xi to be justly managed ibid. War defined 2. proved lawful by the first principles of Nature 11. by the Law of Nature 11 12. by right reason and by the nature of human Society 12. by sacred story 13. by the consent of the wisest in all Nations 14. not repugnant to the Law of Nations not to the Divine Law ibid. avoided by the Primitive Christians to prevent some Acts which their Religion allowed not page 26 War some lawful proved out of the Fathers 26. publick private and mixt 31. private permitted by Moses 32. after tribunals erected sometimes lawful 31 32. private in our own defence lawful 33 34. solemn and less solemn ibid. sometimes made by inferiour Officers and whether such a War be solemn or publick 35. whether made by inferiour Commanders by guessing at the Will of their Prince ibid. War to make without Commission from the Prince Treason ibid. solemn cannot be but between Soveraign Princes page 35 36 452. The War of Manlius against the Galatae Caius Caesar in Germany Octavius and Decimus Cassius whether just page 35 36 War against Superiours unlawful 54. without Cause unjust 70. Civil worse than Tyranny page 65 War should be just if we would have it prosper 70. it hath three efficient Causes Principal Auxiliary Instrumental 66. it begins where Justice ends 69. its pretences always just though its Causes sometimes unjust page 70 War caused for wrongs done or in our own defence just 70. made for others naturally lawful 66. to repair damages or to exact punishment lawful 383. for punishment only seldome just 385 386. made to lessen the power of a Neighbour Prince only unlawful 76 77. for sins against God whether lawful 386. without cause suspected to be predatory 405. the most natural is that against wild Beasts next is that against men as brutish as Beasts page 384 385 By War some things gained are the Kings page 43 44 War between Christians not to be made for the Scriptures misunderstood 391. then profitaable when our Enemies will not otherwise do us Justice 412. when unlawful though the Cause be good 409. whether it may be on both sides just 414 415. undertaken for Religion or Liberiy whether lawful page 416 War made for a single Subject not always convenient for the whole 422. for the defence of Subjects lawful ibid. for punishment seldom made by Princes of equal power page 420 The Condition of War miserable page 421 In War many changes and chances happen which cannot be foreseen page 418 War may prudently be undertaken where there is great cause and great advantage 420 421. may be in respect of Subjects on both sides just 415. denounced against Princes and against all that are under his Government 447. whether it may be made as soon as denounced and in what Cases 455. made by Pirates or Subjects have no effect of a solemn War ibid. That War is just that is made for the recovery of things taken away that is publickly decreed and solemnly denounced page 452 In War the effects are lawful i. e. not punishable 457. its licence extends to all that are found among Enemies even Strangers 458. the Innocent and Nocent fare alike ibid. its rage 459. not to be waged but with some clemency 497 498. especially amongst Christians 495. made against Walls Pillars Houses malicious page 512 In an unjust War as things so a People taken should be restored to Liberty 530. what is taken should be restored page 496 A War may be mixt in part publick in part private 435. may be made by Souldiers though wicked 431. may be made against such as sin against the Law of Nature 384. made to compel to Christianity unlawful page 389 War to be sometimes avoided by Princes for their Subjects sake 418. made to establish Peace 524 571. for revenge not to exceed a just measure page 497 498 Vnto an unâ—ust War none to be compelled page 187 War may lawfâ—lly be made for Friends and Associates 424. c. for the Subjects of another Prince 425. for any men page 424 War then just when necessary it shou'd be our last remedy page 452 Wedlock how it differs from Matrimony page 112 Of Weight or measure to exact more or less than is contracted for is Theft page 160 A Wife may rocover from her Husband what she lent him if thereby he be enriched 147. she may claim the Estate if bought with her money ibid. she hath power over her Husbands Body by the Gospel Law page 109 Wives many to have at once lawful of old ibid. whether it be lawful to forsake them ibid. in favour to them Divorce permitted to the Hebrews ibid. Wild Beasts how possest 135. by the Germans given to their Prince as all other things that had no owner ibid. in private Woods inclosed are possest ibid. whether the Dominion be lost with the possession ibid. and Fish whose they are 81. that they should be the Kings is not against the Law of Nature page 135 Will what hath no known Cause we refer to Gods will page 390 The Will in some case punishable 374. naturally mutable 379 380. of the Dead a Law page 122 The more of the Will the greater the sin ibid. The Will is moved by things really or imaginably good page 379 To have understood the Will of the Deceased creates a Right page 122 The Will exprest by some outward sign creates a guilt and makes us lyable to punishment page 383 The Will to shew her own freedom acts sometimes without any other reason page 419 420 Wise men make War by constraint Fools for delight page 421 Wisdoms chiefest part is to direct our selves in doubtful cases the next is to be directed by others of greatest learning and experience page 411 412 Wolves Peace with Sheep upon the delivery of the Dogs page 423 Women Captives how favoured by the Hebrew Laws 464. they have no guard for their Chastity 482. their Children Slaves born ibid. Women succeed in Kingdomes that are Patrimonial 127. how they are obnoxious to the licence of War 504. their Empire unknown to the Romans page 144 Women and Children to be spared in War page 504 Words signify by consent but things and acts not so 438. in Leagues taken as vulgarily understood page 190 191 Wrecks that they should be the Kings or Peoples unjust page 121 Writings are but lasting monuments of the contracts but no part of the substance page 199 In a Writing if two clauses clash and cannot be reconciled to which we should incline ibid. if its parts cannot be reconciled the latter derogates from the former page 191 Wrongs on the one side make War on the other side just page 70 X. XEnophon's institution of Cyrus page 4 Xerxes his contest with Artabazanes for the Kingdom page 132 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what page 183 Y. YEA Yea Nay Nay what it signifies page 174 Z. OF Zeal the judgment page 369 In Zealand the Vassals pay Tribute for their common fields to the State whereunto every man contributes his proportion page 138 Zeleucus his Law concerning such as drank Wine contrary to the prescription of their Physicians page 4 Zopyrus another Sinon betrayed Babylon to Darius perfidiously page 569 The End of the TABLE