on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
that is They that lay aside their Arms when there is no persecution that threatens them for by the word Peace the Primitive Christians understood only a vacancy from persecution as appears by Cyprian and others Nostrae paci quod est bellum quam persecutio As to the peace of the Church What greater War can there be than persecution Tertul. So St. Cyprian Cyprian when God began to give peace unto his Church That is when he freed it from Persecution Next we have the example of Julians Souldiers who were no mean proficients in the School of Christianity for they were ready to testifie their faith in Christ by the effusion of their blood of whom St. Ambrose speaks thus The Emperor Julian though an Apostate yet had many Christians that fought under his Banner to whom when command was given to march against the enemy in defence of their Country they readily obeyed But being commanded to march against the Christians then they acknowledged no Emperor but the King of Heaven Such also were long before them the Thebaean Legion which in the Reign of the Emperor Dioclesian was converted to the Christian Faith by Zabda the Thirtieth Bishop of Jerusalem which Legion did afterwards leave behind them a singular pattern to all future Generations of Christian patience and constancy whereof I shall have occasion to speak more at large hereafter It shall suffice in this place to rehearse that excellent speech they made to the Emperor which doth both solidly and summarily represent unto us the Duty of a Christian Souldier Against any Foreign Power we freely offer our hands which yet we dare not embrew in the blood of Innocents Our Arms which have been long practised in suppressing vice and in vanquishing Foes never yet knew how to oppress the Righteous or to cut the Throats of our Neighbours and fellow-Citizens When first we engaged in War we remember it was to protect and not to destroy them we have hitherto fought for Justice for Piety for the defence of Innocence For these prizes we have slighted all dangers we have fought for the defence of our faith which should we have broke with God How canst thou O Emperor expect that we should keep with thee Basil also gives this Testimony of thâ— Primitive Christians That their Ancestors never accounted that execution that was done in War as Murther but alwaies held them excused that fought for the defence of Chastity and of Piety CHAP. III. War divided into Publick and private The Supream Power explained I. War divided into Publick and Private II. That by the Law of Nature even after Tribunals were erected all Private War was not unlawful proved III. No nor by the Evangelical Law The Objections answered IV. Publick War divided into that which is solemn and that which is less than solemn V. Whether a War made by the Authority of a Magistrate not having Supream Power be Publick and when VI. Wherein the Civil Power consists VII What Power is Supream VIII The opinion that the Supream Power is ever in the people refuted and the Arguments answered IX As also that the subjection between King and people is mutual X. Cautions for the right understanding of this Question whereof the first is to distinguish between the likeness of words in things that are unlike XI The second is to distinguish between the Right and the manner of holding that Right XII That some Empires are held fully that is with a Power to alienate them XIII That others are held not so fully XIV That some though not Supream yet are held fully that is with a Power to alienate them XV. The said distinction appears by the differences in assigning Protectors in Kingdoms XVI That the Power ceaseth not to be Supream by a promise even of that which is not due by the Laws of either Natural or Divine XVII The Soveraign power is sometimes divided into parts subjective and potential XVIII Yet it cannot be well concluded that the power is not Supream because Kings will not have their Acts to be firm unless approved of by some Assembly XIX Some other examples not to be drawn hither XX. True examples of the Supream Power divided XXI He that is tyed up by a League on terms unequal may yet retain the Supream Power XXII So may he that pays Tribute XXIII So may he that holds it from another in Fief XXIV A mans right may be distinguished from the exercise of that Right with several examples I. War divided THE first and most necessary division of War is this That some are Publick and some Private and some mixt Publick is that which is made by publick Authority and Private is that when the Authority is so and mixt when it is in part Publick and in part Private and First Let us treat of that which is Private as being most ancient That by the Law of Nature some Private War may lawfully be waged is as I suppose sufficiently proved by what hath been already said where it was shewed That to repel force with force was no ways repugnant to Natural equity But the Question will be Whethersince the erection of Courts of Justice it be now lawful to repel force with force Whereunto I answer That although Courts of Judicature were not instituted by Nature but by humane Authority yet doth natural reason and Common equity instruct us That it is more agreeable to common Honesty and to the conservation of peace and tranquillity amongst men that all differences should be publickly scanned and determined by persons that are unconcerned rather than by them who being blinded with self-love do oft-times mistake right for wrong and will do that only which seems good in their own eyes Non est singulis concedendum quod per magistratum publice possit fieri Paulus Juris cons ne occasio sit majoris tumultus faciendi That is not to be granted to every private man that may be done publickly by a Magistrate lest for every petty injury men run into Tumults And hence it is Cassiod l 4 Var. Ep. 4. saith King Theodorick That so great a reverence is due to the Law that no man ought to revenge himself with his own hand or by the suggestion of his own passions For if all differences may be determined by plan force wherein would a calm peace differ from the tumults of War And therefore the Laws call that Force When any man takes that which is his due with his own hands without the determination of a Judge II. That Tribunals being erected all war is not unlawful Most certain it is That the Licence which before Tribunals were established publickly was permitted is since much restrained And yet in some places the same Licence still remaineth namely where Judgment cannot be had against offenders For the Law in prohibiting a man to take his own unless it be judicially doth tacitely imply that it be in such a place and at such a time where an
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
kill him and to a man or woman to kill him that shall attempt to ravish them Aug. lib. 1. de lib. Arb. or after the Rape is committed if they can So Paulus the Lawyer He that shall slay a Thief or a Ravisher ought not to be punished for by a publick and heroick Act the one defends his Life the other her Chastity Amongst women that have thus defended their Chastity with the death of him that attempted it Heliodorus records the noble act of Heraclea which he calls a Just defence of her honour Another amongst men we have recorded by Plutarch Plut. vit Marii of one Trebonius who slew C. Lusius a Tribune of the Souldiers and Marius his own Sisters Son for attempting to bugger him for which fact he was by Marius honoured with a Crown VIII Yet may this defence sometimes be laudably omitted Although as we have said it be lawful to kill him that is ready to kill me yet is it more commendable to chuse rather to be killed than to kill which some grant yet so that it be with this limitation that it excepts that person upon whom the safety of many doth much depend But I cannot judge it safe to impose this so contrary a Law to patience upon all those whose lives are beneficial unto others and therefore I think it more convenient to restrain the exceptions to such only whose office and duty it is to defend others from violence As to those whom we have contracted with as our Guards to defend us in our Journeys either by Sea or Land and to such as are publick Governors unto whom that of Lucan may not unfitly be applied Cum tot ab hac anima populorum vita salusque Pendeat tantus caput hoc sibi fecerit orbis Saevitia est voluisse mori Since on thy life so many lives depend And wast made Head the Members to defend To wish to dye were madness As also that of Curtius Whilst thou unadvisedly exposest thy life to so many perils Lib. 10. thou dost not remember how many of thy Subjects lives thou endangerest which thou oughtest to defend IX Our defence against a person publickly useful unlawful by the Rule of Charity On the contrary It may so fall out That the life of him that endangers ours is so beneficial to others that he cannot without sin be killed and that not only because it is forbidden by Gods Law both in the Old and New Testament which we have already proved where we shewed that the Person of a King is sacred but by the very Law of Nature For the Right of Nature as it signifies a Law doth not only respect those things which are agreeable to that which we call Expletive Justice but it comprehends also the Acts of Fortitude Temperance and Prudence as being in some certain circumstances not only honest and laudable but strictly due But unto this that we have said we stand obliged by Charity Neither am I at all startled from this opinion of mine by what Vasquius urgeth That the Prince that shall Insult over an Innocent person doth ipso facto cease to be a Prince than which nothing can be said less true or more dangerous For as Right and Property so Soveraignty is not lost by mis-government Soveraignty not lost by mis-government unless some Law doth so determine it But by what Law was it ever yet decreed that Kings should lose their Soveraignty by an offence committed against a private person Surely there was no such Law ever yet found nor I believe ever will be For the condition of Princes would then be very slippery and the Common-wealth soon fall into Confusion And as to that which Vasquius layes as his ground work The errors of Vasquius confuted whereupon he erects this and many other such dangerous conclusions as namely that all Soveraignty was granted for the benefit of the Subjects and not of the King were it universally true yet were it nothing to the purpose For the thing it self doth not then wholly cease although the benefit or profit thereof doth in some part cease And whereas he adds That every man wisheth well to the Common-wealth for his own sake and therefore every man should prefer his own safety before that of the Common-wealth it doth not follow For although we do wish the preservation of the Common-wealth for our own sakes because our own safety is included in it yet do we not wish it only for our own sakes but for the good of others also For the opinion of those Philosophers who hold that true friendship doth arise out of some Indigency or Insufficiency is rejected as false and pernicious seeing that Man being a creature naturally sociable is promptly and of its own nature inclined unto it But that I should prefer the common safety before mine own Charity doth sometimes perswade and sometimes command me Plutarch will tell us Vita Pelop. That the principal part of Valour is to defend our Defender And Cassiodore illustrates this by a very fit comparison If the hand saith he by its intelligence from the eye perceive a blow threatning the head without regard to its own safety it will interpose it self between it and danger From whence he infers That they who to redeem their Prince his life hazard nay lose their own do but the same in the Politicks which the hand by Instinct doth in the body Natural It is no marvel saith Seneca if Kings and Princes being the Guardians of publick States be dearer unto us than our own Relations For if in the Judgement of the Wise Lib. 1. de Clem. c. 4. the Publick Good be to be preferred before any private mans It will easily follow That he that is the Father of our Countrey deserves to be dearer unto us than the Father of any one Family Or as St. Ambrose speaks He that delivers a Nation from desolation merits more love De Off. l. 3. c. 3 than he that delivers us from particular dangers And therefore the same Seneca doth highly commend Calistratus and Rutilius the one an Athenian the other a Roman who refused to have their own estates restored unto themselves by the publick ruines Lib. 6. de Bâ—n c. 17. esteeming it much better to perish by themselves than to redeem their own lives and fortunes with the destruction of their Countrey X. To kill any man for a slight injury not lawful for Christians There are also that hold it lawful to defend our selves from any slight Injuries as a box on the ear or the like even by killing him that attempts it But respect being herein had to Justice meerly Expletive I cannot dissent from them For although the Inequality be very great between a box on the ear and death yet he that shall attempt to injure me doth therein give me a Right that is a kind of Moral power to oppose him without any limitation so far forth as I cannot
that as those Alienations so these Infeudations of Kingdoms which Kings have made without the peoples consent yea and the Remission of Homage too have by many people been made void Now the people are said to consent either when the whole body of them do meet to express it as the Germans and Gauls were wont or when the several Provinces do it by their Deputies being thereunto sufficiently authorised As in the German Empire the consent of the Princes Electors doth both by Custom and Covenants conclude all the orders thereof in any Alienation for Whatsoever we do by another is reputed our own act Id facimus quod per alium facimus So neither can any part of an Empire be morgaged without the like consent not only because it usually introduceth an Alienation but for that Kings are bound to their Subjects to exercise the Soveraign Power by themselves and so are the people in general to their respective parts to conserve the administration of the Empire entire this being the chief end of their Consociation X. Inferior Jurisdictions not alienable by the King But as to other lesser Civil Functions I see no reason why the people may not by an hereditary right grant them at their pleasure because they do not thereby diminish the intire body of the Empire yet cannot a King do it without the consent of the people if we consine our selves within the bounds of nature because the effects of a temporary power such as Elective and legally successive Kingdoms are can be but temporary yet may the people as well by their express consent as by their long continued silence give that Right to their Kings For so the Histories of the Medes and Persians do inform us that their Kings usurping this Right did anciently give away whole Towns and Provinces to be held by a perpetual right XI Not the peoples patrimony That part of the peoples Patrimony being amongst the ancient Grecians a part of the common Fields the fruits whereof were designed for the maintenance either of the publick charge of the Common-wealth or of the Royal dignity cannot either in the whole or in any the least part thereof be alienated by Kings without the consent of the three States that is the Clergy Nobles and Commons because they have no right to any thing more than to the present profits no not to the smallest part of it as I have said For Quod meum non est ejus nec exiguam partem alienare mihi jus est Of that which is not mine I cannot alienate the smallest part Yet the people may sooner be presumed to consent by their knowledge and silence in such small matters than in greater And the like may be presumed in cases of common profit or danger concerning the alienation of some parts of the Empire if it be not of any great moment for that Patrimony was at first instituted for the good of the Empire XII The patrimony to be distinguished from the mean profits But many are deceived in that they do not rightly distinguish between the things arising from the Patrimony as its fruits or profits and the Patrimony it self As for example the washing of the banks of a River is patrimonial but the increment which the Flood produceth is but the fruits and profits of it so the power and right of raising a Tax is patrimonial but the mony so raised is but the profits of that Right The right to confiscate is patrimonial but the Lands confiscated are but the profits of that right XIII How far forth that part of the peoples patrimony may be pawned by the King and why Those parts of the peoples patrimony which are so designed as aforesaid may upon just cause be pawned or morgaged by Kings that have full and absolute power that is that have power upon occasion to raise new Taxes upon their Subjects For as Subjects are bound to pay such Taxes so are they likewise bound to satisfie that for which any part of their patrimony is for the publick good pawned the redemption whereof is some kind of Tribute For the very patrimony of the people is a kind of pawn given to the King for the payment of the publick debts and any thing that is thus pawned to me I also have a right to pawn to another Yet what hath hitherto been said is of force unless it be where the Laws of the Land do either enlarge or contract the power either of the Prince or the people XIV Testaments a kind of Alienation This also must be observed That under this Title of Alienation we comprehend likewise Testaments For though Testaments as some other acts also are beholding to the Civil Law for their form yet is the matter of it nearly allyed to dominion and it being granted to the Law of Nature For a man may by Testament give away his Estate not only fully Arist Pol. l. 2. c. 7. but under certain conditions nor irrevocably only but with a power to revoke and yet he may still keep the possession of what he so gives with a full right of enjoying it For a Testament is an Alienation of a mans Estate at his death and revocable till then and yet reserving in himself the full possession and absolute fruition during life Quint. Pater Vide supra Bo. 1. ch 3. §. 12. And therefore Solon in permitting his Citizens to make their Testaments Made them absolute Lords and Proprietors of what they had Surely our Estates would be but burthensom unto us if the power we have in it during life should be taken away from us at our deaths Abraham in pursuance of this Right had he dyed childless had lest by his Testament all his Estate to Eliezer as we may collect from Gen. 15.2 And the making of Testaments was of frequent use among the Hebrews as may appear Deut. 21.16 Ecclus 33.25 But that in some places it is not permitted to Strangers to make their Wills is not to be attributed to the Law of Nations but to the municipal Laws of some Countries and if I mistake not enacted in such an Age when all Strangers were accounted enemies and therefore amongst the more civilized Nations hath long since been worn out of use CHAP. VII Of that Right that is acquired by Law and of Succession from an Intestate I. Of the Civil Laws some are unjust and therefore cannot transfer a Right as in things shipwrackt II. By the Law of Nature a Right may by gained in things taken from another for a just debt and when III. How Succession to an Intestates estate doth naturally arise IV. Whether by the Law of Nature any part of the Parents goods be due to their Children explained by distinction V. The Children of the deceased preferred to the Estate before their Parents and why VI. The Original of Representative Succession VII Of Abdication and Exheredation VIII Of the Right of Natural Issue IX Where are no Children nor Will nor certain Law extant
the ancient Estate shall return from whence it descended and to their Children X. But that which was lately gained to the nearest in blood XI The Laws touching Succession are diverse XII How Succession takes place in Patrimonial Kingdoms XIII In Kingdoms Indivisible the first-born to be preferred XIV That Kingdom which by the peoples consent is hereditary if in doubt is presumed indivisible XV. The Succession not to last beyond the line of the first King XVI Natural Issue not at all concerned in it XVII The Male Issue preferr'd before the Female within the same degree XVIII Of the Males the eldest is to be preferred XIX Whether such a Kingdom be part of an Inheritance XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began whether Absolute XXI Or held of another in Fee XXII Of Lineal Suceession to the next in blood whether Males or Females and how the Right is thereby transmitted XXIII Of Lineal Succession to the Male Issue only called Agnatical Succession XXIV Of that Succession which always respects the nearest to the first King only XXV Whether a Son may be exheredated so as to bar his Succession to the Crown XXVI Whether a King may for himself and his Children renounce his Kingdom XXVII Concerning the Right of Succession the Judgement to speak properly is neither in the King nor People XXVIII A Son born before his Father was King shall be preferred before him that was postnate XXIX Vnless it be otherwise provided by some other Law XXX Whether the elder Brother deceased his Son be to be preferred before the younger Brother explained by distinction XXXI Also whether the younger Brother living be to be preferred before the Kings elder Brothers Son XXXII Whether the Kings Brothers Son be to be preferred before the Kings Vncle XXXIII Whether the Kings Son be to be preferred before the Kings Daughter XXXIV Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter XXXV Whether the Daughter of the eldest Son be to be preferred before the younger Son XXXVI Whether the Son of a Sister be to be preferred before the Daughter of a Brother XXXVII Whether the Daughter of an elder Brother be to be preferred before the younger Brother I. Some of the Civil Laws unjust HAving thus shewed what Right may be derived from another by his Act now we are to treat of the Right that is derived from another by Law And this is either by the Law of Nature or by the voluntary Law of Nations or from the Civil Law It were endless to treat here of the Civil Law neither are the main Controversies concerning War thereby determined and therefore we shall purposely omit it Yet is it worth our Observation to know that some of the Civil Laws are apparently unjust as that which adjudgeth goods Shipwrackt unto the Kings Coffers For to take away anothers Right and Propriety without any preceeding cause that is probable is a manifest injury Thus pleads Helen in Euripides Helen Wreckt and a Stranger came I in Such to despoil is horrid sin For what Right saith Constantine can the misfortunes of another create to a King that he should be enriched by a calamity so much to be pitied Lib. 1. C. de Naâ—f l. 12. And therefore Dion Prusaeensis in an Oration of his concerning Shipwracks crys out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Far be it O Jupiter from me to take such advantages by other mens misfortunes And yet such a Right do the Laws of Nations very unjustly give as amongst the English the Sicilians And such an ancient Law Sopater mentions to be in force in Greece Christian King of Denmark upon the abrogating of this Law complained That he lost an hundred thousand Crowns yearly Nicetas speaking of this Law calls it a Custome so barbarous as is not to be named What then was Bodines meaning to defend this Law He namely who reprehended Papinian for chusing rather to dye than to act against his own Conscience II. A man may have a Right to that which he takes from another and when Propriety or Dominion being introduced it follows by the Law of Nature That things are alienable two ways First By commutation which consists in the making up of that Right which I want whereby the ballance of Justice may be made even or Secondly By Succession Now Alienation by way of Commutation or Expletion is when for something that is or ought to be mine which I cannot receive in kind I take from him that detains it or somewhat in lieu thereof that is some other thing of equal value Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods See Book 3. ch 7. §. 6. Which saith he they might take and keep in compensation of their labour Now that Dominion may be thus transferred is easily proved from the end which in moral things is the best proof For how otherwise can I be said to receive my full Right unless I become the right owner of it Seeing that it is not the bare detention but the full power to use and dispose of it at my pleasure that makes the Scales of Justice even An ancient example of this we have in Diodorus where Hesionaeus in lieu of those things which being promised to his Daughter by Ixion but not given took away his Horses For Expletive Justice when it cannot recover what is the same endeavours to get the value of it which in a moral estimation is the same By the Civil Law no man we know can do himself Right Nay if any man shall with his own hands take away from another though but what is his due it shall be imputed unto him as Rapine and in some Countreys he shall lose his debt And although the Civil Law did not diectly forbid this yet from the very institution of publick Tribunals it may easily be concluded to be unlawful But where there are not publick Courts to appeal unto as on the Seas and in Desarts there the Law of Nature must be our guide So it should sometimes when the Laws cease but for the present that is if the debt can never be got otherwise As if the Debtor be ready to fly the Countrey before the Courts can be open in which case the Creditor may lawfully have recourse to the Law of Nature Yet so that the Judgement of the Court must afterwards be expected before the Right of Propriety can be assured as in the case of Reprizals as shall be said hereafter But yet if the Right be certain and it be also morally as certain That a man cannot by a Judge receive satisfaction for want of due proof the best opinion is That the Law concerning Judgements ceaseth and that a man may have recourse to the ancient Law of Nations III. The Estate of
void Now these things do naturally attend any Oath whereby we may easily judge of the Oaths of Kings and of Foreigners one to the other when the Act is not subject to the Laws or Customs of the place XX. How far the Prince's power prevails over his Subjects Oaths Now let us see what power our Superiors namely Kings Princes Masters and Husbands have in things that concern them in their respective Rights over their several Relations And first we must know That the Acts of our Superiors cannot make an Oath that is truly obligatory void so that it ought not to be fulfilled For this would be repugnant both to Natural and Divine Right but because all our Actions are not fully in our own power but so as they have some dependance on our Superiors therefore we grant that our Superiors have a twofold power over us concerning that which is sworn the one directed upon the person swearing the other upon the person to whom he swears The act of our Superiours may restrain the person swearing either before he swears making such an Oath void so far as the Right of an Inferior is subject to the power of his Superior or after he hath sworn by forbidding the performance of it For an Inferior as such could not bind himself without the approbation of his Superiour beyond which he had no power And after this manner by the Jewish Law the Husband had power to null the Vow of his Wife so had the Father the Vow of his Children so long as they were under the power of his government Seneca starts this question What if there should be a Law enacted that no man should do that which I have promised my friend to do for him Which he thus resolves Eadem lex me defendit quae vetat The same Law defends me that forbids me There are also some mixt acts between both as when the Superior doth appoint that his Inferior shall bind himself by Oath in this or that case namely through fear or want of judgment but with this limitation that the Oath shall bind if his Superiour shall approve thereof And upon this foundation are built all dispensations and absolutions from Oaths which Princes in former times did exercise by themselves cap. 35. as Suetonius testifies in the Reign of Tiberius and Vasquius records to have been long used in Spain which power they now remit that it may be with more piety executed unto the Ecclesiastical jurisdiction The power to absolve from Oaths in whom anciently So the act of a Superiour may be directed against the person to whom it is sworn either by taking away that Right which by that Oath he hath gained or if as yet he hath no Right by forbidding him from claiming any Right by vertue of that Oath And this he may do two ways either by way of punishment or for a more publick good by vertue of his Soveraign power And from hence we may learn what power Princes have over their Subjects Oaths where he that swears and he to whom it is sworn are of several Nations But he that upon his Oath hath promised any thing to a Nocent person as to a Thief or to a Pirate as such cannot by way of punishment take away from him that Right he hath given him For then the words of his promise or of his Oath should have no effect at all which inconvenience is to be avoided For the like cause the Right of that which is promised cannot be compensated with the Right of that which was before controverted in case the agreement were made after that Controversie began Yet may an humane Law remove that impediment which it had put in acts of some certain kind in case an Oath either of what kind soever or in some certain form be added As the Roman Laws have done in such impediments as respect not the publick directly but the private benefit of him that swears which if it may be done the act sworn shall stand in force in the same manner as naturally it would if such an humane Law were not either in obliging hi◠faith only or in giving also a Right to another according to the diverse natures of acts which we have already elsewhere handled XXI What manner of Oath Christ forbad And here by the way we must observe that what is said in the Precepts of Christ and by St. James concerning our not swearing at all doth not properly belong to assertory Oaths whereof we have several examples in St. Paul but unto such as are promissory for a time to come James 5.12 Rom. 1.9.9.1 2 Cor. 1.23.11.31 Phil. 1.8 1 Thes 11.9 1 Tim. 11.7 which is uncertain And this is evident by the opposition in the very words of Christ Ye have heard it said to them of Old Thou shalt not forswear but thou shalt pay thy vows unto the Lord. But I say unto you swear not at all And by the reason that is added by St. James That ye be not found to be deceivers For so the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sounds among the Greeks as will appear by Job 34.30 and Mat. 24.57 The same may easily be evinced by our Saviours subsequent words Let your speech be Yea yea Nay nay which St. James thus expounds Let your yea be yea and your nay be nay which is a plain Figure which the Rhethoricians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The former yea signifying the promise made the latter yea the fulfilling of that promise For this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. yea is an Adverb of yielding granting or promising and is exprest by Amen Apoc. 1.7 The Roman Lawyers exprest it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Quidni which is an affirming or an assenting to that which is asked of us It is used for the fulfilling of a promise by St. Paul 2 Cor. 1.20 Where he saith that all the promises of God in Christ are yea and Amen Hence ariseth that old Heb. Adage An honest mans yea is yea and his no is no But on the contrary he whose words and deeds do not accord is by them said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes off and sometimes on as 2 Cor. 1.18 19. 2 Cor. 1.18 19. That is their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their yea is no and their no is yea the meaning whereof is that they are inconstant unsetled always changing So St. Paul himself expounds it for when they charged him with levity he excuseth himself saying that his speech to them was not yea and no but as to himself it was always yea Festus among the various significations of the word Naucum writes thus Some there are that think that it is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so signifies a wavering man Now if 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and no signifies lightness or inconstancy it will follow that yea yea and no no signifies stayedness or constancy So
that our Saviours words signifie no more than what Philo's the Jew did It is an excellent thing saith he and most agreeable to Rational men De Decal so to accustom themselves to speak truth That their bare words may carry as much authority as other mens Oaths And in another place he saith That a good mans word is as firm immutable and void of deceit as if he had confirmed it with an Oath So likewife Josephus testifies of the Esseni That whatsoever they affirmed upon their words was as true as if they had affirmed it upon their Oaths And therefore to swear was unto them superfluous And from these Esseni or from those Jews that followed them Pythagoras seems to have learnt it where he saith We must not swear by the Gods but every man sbould be so careful of his word and credit that he may be believed without an Oath It was the advice of Chrysostome If thou dost believe that he with whom thou hast to deal De stat 15. is honest and faithful urge him not to swear but if thou suspect him for a lyar urge him not to forswear The Scythians in Curtius told Alexander That it was not the custom of the Scythians Gratiam jurando sancire to purchase his favour or establish their own peace by Oaths For saith Curtius Colendo Fidem Scythae jurant The Scythians are so great admirers of truth and Fidelity that their bare words do oblige them as firmly as and their deeds confirm their promises more than their Oaths Cicero in his Oration for Roscius Comoedus tells us that look what punishments the Gods awarded to a perjured person the same they awarded to a Lyer For it was not the form of words wherein the Oath was comprehended that provoked the Gods unto vengeance but the malice and perfidiousness of the heart wherein all Treacheries and forgeries are minted It is excellent Counsel that Solon gives us That we should have so great a regard to our own honesty that our words may be as Authoritative and convincing as our Oaths Thus Clemens Alexandrinus describes a just man to be one that evidenceth the truth of his promises by the sincerity and constant stability of his words and actions Cicero records it of a certain Citizen of Athens that being known to be of a Religious and upright conversation Orat. pro Baldo and being to give his publick testimony upon Oath was not permitted so to do but as he approached near the Altar to that purpose all the Judges with one voice cryed out That he should not swear being unwilling to give more credit to his Oath than to his word Very pertinent to the meaning of our Saviour where he saith Swear not at all is that saying of Hierocles He that in the beginning said Thou shalt reverence an Oath did therein enjoyn us to abstain from swearing concering such thing as are contingent and of uncertain events For such things are so mutable and of so small an account that they are not worth an Oath neither is it safe to swear about them And Libanius inserts this amongst many other Vertues for which he highly extols a Christian Emperor That he was so far from Perjury that he feared to swear to what he knew to be truth A perjurio tantum abest ut etiam vera jurare vereatur XXII Faith may be given without an Oath Therefore in some Nations instead of Oaths they give unto each other their right hands which among the Persians is the strongest assurance of Faith that can be given And amongst other people they oblige themselves by other signs and that so strongly that unless he that shall so oblige himself do fulfill his promise he is held as execrable as if perjured But especially of Kings and Princes it is usually said that their faith given is as good as an Oath For such they should be that they may say with Augustus Bonae fidei sum I have a clear Reputation And with Eumenes I had rather lose my life than break my Faith Whereunto Gunther alludes where he saith No Oath more Sacred than the word of Kings Whereunto we may add that of Alexis Comicus If I but nod 't is firm as though I sware This testimony Isocrates gives of King Evagrius That he kept his word as Religiously as he did his Oath Cicero in his Oration for King Dejotarus highly commends Cajus Caesar for this That if he gave to any man his right hand it was sufficient to confirm any Promise that he made whether in Peace or War And in those Heroick times The elevation of the Royal Scepter was equivalent to the Oath of a King as Aristotle notes CHAP. XIV Of the Promises Contracts and Oaths of Soveraign Princes and States I. The opinion of some who hold that Restitutions to the full arising from the Civil Law appertain to the acts of Kings as such refuted as also this that Kings are not bound by their own Oaths II. To what Acts of Kings the Laws extend explained by distinction III. When a King is bound by his Oath and when not IV. How far forth a King is bound to what he hath promised without cause V. The use of what hath been said concerning the force of the Laws about the Contracts of Kings VI. In what sense a King may be said to be obliged to his Subjects by the Law of Nature only or even by the Civil Law VII A Right gained to Subjects how it may lawfully be taken away VIII The distinction of Things gained by the Law of Nature and by the Civil Law rejected IX The Contracts of Kings whether they be Laws and when X. How by the Contracts of Kings they that inherit all his Goods stand bound XI How by those Contracts they that succeed in the Kingdom may stand bound XII And how far XIII The free Grants of Kings when revocable and when not XIV Whether the true Kings be bound by the Contracts of them that invade or usurp the Kingdom I. Whether Kings may rescind their own Acts. THe Promises Contracts and Oaths of Kings and of such others as have the like Soveraign power have some questions peculiar to themselves as well concerning what power they have over their own Acts as concerning what they have over their Subjects as that which they have over their Successors As to the first of these it is questioned Whether the King himself hath the same power to restore himself to the full or to make void his own Contracts or to absolve himself from his Oath as he hath his Subjects Bodine was of opinion that a King being circumvented by another mans fraud by fear or error may for the same causes be restored to his own Rights as well in things appertaining to the lessening of his Prerogative as a King or in things appertaining to his private Estate as his Subjects may Whereunto he addes That a King is not bound by his Oath if the Contract agreed
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
body X. Of Promises some are favorable some grievous and some mixt It is also to be observed That of those things that are promised in any League some are friendly and favourable as those that are on both parts equal and to both profitable which the farther it extends the greater is the favour in the Promise as in those that belong to Peace the favour is greater than in those that belong to War and in War those that respect defence are more favourably to be interpreted than those that are made for other causes Some also are odious as those that are imposed on one Party only or which are more burthensome to one Party than to the other and those that are imposed by way of punishment or which make some acts void or alter what hath been agreed on formerly But in case any are mixt as those which do alter somewhat formerly agreed for the setling of Peace that according to the greatness of the good or of the alteration shall be judged either favourable or odious yet so as if other things are equal those made in favour shall be preferred before others XI As to the acts of Kings or people the distinction between Contracts due in equity and strict Law rejected The difference of acts due in equity and those due in strictness of Law if we mean only the Roman Law appertains not to the Law of Nations Yet may it in some sence be better applied as namely If in any Regions there be some acts which have one certain common form that form so far forth as it is not changed may be understood to be in the very act But in other acts by themselves indefinite such as are a free Donative or a free Promise we should more adhere to the very words XII By these rules we may frame Interpretations of words and promises These distinctions being thus observed we are to guide our conjectures by these rules in things not odious the words are to be understood in their full propriety as they are vulgarly taken and in case there be any Ambiguity in them then are they to be taken in the largest sence As when the Masculine only is exprest both Sexes are to be understood and where things are mentioned indifferently they shall be understood universally So these words unde quis dejectus est From whence one is thrust out See Book 3. c. 20. §. 11. shall be understood so as to imply the restoring him to the possession of that which hath been forceably detained from him For the words in their largest signification will admit of this construction as Cicero pleads in his Oration against Caecina But in such as are yet more favourable if he that promiseth any thing be verst in the Law or use the advice of Lawyers the words shall then be yet more largely understood so as to include the signification of Art or that sense which the Law hath given it But to have recourse to such Interpretations as are plainly improper we ought not unless it be where some absurdity would otherwise ensue or when somewhat would render the Agreement unprofitable On the contrary if necessity shall so require to avoid either some manifest injustice or some as evident absurdity we may not interpret the words more strictly than their Propriety will bear And though there be no such necessity yet if there appear either manifest equity or very great utility in the restriction we are to confine our selves within the strictest bounds of Propriety unless other circumstances forbid it But in such as are odious that the burthen may be moderated even Figurative Speeches are sometimes admitted And therefore in voluntary grants and in the remission of that which is a mans Right though the words be general yet are they to be restrained unto those things to which in probability they were intended And amongst things of this kind that is sometimes understood to be possest which we have hopes may be recovered So succours promised by one party only are presumed to be raised at the charge of that party that requires them XIII Under the name of Associates whether those at present only be comprehended But here a notable Question is sometimes started Whether by Friends mentioned in a League we are to understand those only who are so at the League making or those also which shall afterwards be admitted In that League made between the Romans and the Carthaginians after the Sicilan War it was Covenanted thus Vtriusque populi socii ab utroque populo tuti sunto That the Friends of either party should not be molested by either party Hence the Romans would infer That though the League made with Asdrubal of not passing the River Iberas did nothing avail them because the Carthaginians refused to sign it yet in case the Carthaginians should own that fact of Hannibal's in besieging the Saguntines who had been admitted into League with the Romans though after the said League with the Carthaginians they might justly denounce War against them as having first broken the League Livy thought the Saguntines well enough provided for Lib. 21. The case of the Saguntines discust in that the Allies on either side were excepted For neither was this clause added They that were at that time Friends nor were they excluded that should afterwards be admitted Which was added in the Peloponnesian League between the Lacedaemonians and the Athenians And seeing that it was lawful for them to admit of new Confederates who could conclude it reasonable either that no Nation should be received upon any merit whatsoever or that being admitted they should not accordingly be defended Provided always That none of the Allies of the Carthaginians should be either sollicited to revolt or received into Protection in case they voluntarily did so Which are the very words almost of Polybius and from him by Livy borrowed Hist l. 3. There is no question at all but that the words of the League might admit of either i. e. either to restrain them to those then in League only or to enlarge them to those who should hereafter be received and that without any incongruity of speech But the best interpretation may easily be guessed at by the precedent rules According to which we say That they who were to be admitted were not comprehended for the matter in Treaty now is of the breaking of a League which is Res odiosa A thing in it self odious The breach of a League being a thing odious and the taking of a just Revenge natural the Carthaginian League with the Romans must be understood in the strictest sense And Secondly It concerns the abridging of the Carthaginians of their liberty in taking a just revenge upon those who had injured them which by the Law of Nature was their due and so not rashly to be understood as given away What then shall we hence conclude That the Romans might not admit of the Saguntines as their Friends or being so admitted
but the fruits of our own choice Nor that of Lysias There is no man willingly unfortunate But when a man is made miserable either by the undeserved malice of an enemy or by some secret fate or some misfortune which could not be foreseen then protection by foreign Princes is a debt due to the frailty and inconstancy of our Humane Condition It was a sanction of the wisest Law that ever was Deut. 19.1 23.15 Exod. 21.14 1 King 2.29 2 King 11.13 That he that had accidentally slain a man whom he hated not in times past should fly to one of the five Cities of Refuge and there be safe Because that act as to the irregularity of it had not the consent of the Will so that it was not so properly his sin as his misfortune whereas the very Horns of the Altar could not secure him who out of premeditated malice had slain an innocent person or who out of an affectation of Soveraignty and Dominion did attempt an innovation in the State which Law Philo explaining saith Profanis in fanum nullum esse receptum That no sanctuary can give protection to such unsanctified persons Quaest Graec. 32. The like provision we find to have been in use amongst the Ancient Grecians as Plutarch testifies The Chalcidenses refused to deliver up Nauplius to the Grecians and the reason is given because he had sufficiently cleared himself of the Crimes they objected against him The like we may read of in this latter Age for King Pepin did receive into his protection and refused to deliver up such as being tyrannically opprest fled out of Normandy unto him Yea and the Emperour Ludovicus Pius received those that fled unto him even from the Church of Rome as may appear by his Decree made in the year 817 and inserted in the second Tome of the Gallican Councils c. Cicero Pomponius and others relate That there was in Athens an Altar called Ara Misericordiae The Altar of Mercy which the calamitous have sacred made saith the Poet and a little after Where th' exil'd and the vanquisht seek for rest And Kings of their own Kingdoms dispossest That is all that were unfortunately distrest The City Athens as Aristides tells us was of all other Cities the most ready to protect strangers and such as were through misfortune miserable And elsewhere This in that age was the common Port or Haven wherein all the wrecks of fortune put in and found relief from what part of the world and for what causes soever they were distressed hither they came and here they found succour and protection The like Encomium Mariana gives of Arragon The Gepidae chose rather universally to perish Lib. 20. c. 13. as Procopius informs us than to deliver up Ildigisales either to the Romans Goth. 4. or to the Lombards Sophocles in one of his Tragedies brings in Oedipus supplicating the Athenians in these words Ah! men of Athens I have suffered much Suffer'd indeed for God my witness is That knowingly I have not done amiss And Theseus answering him thus Such Guests as thee at all times to defend O Oedipus repent I never can Till I forget my self to be a man And yet as highly as these Athenians delighted to protect their suppliants whom fortune and not wilfulness had made miserable they would not protect a known malefactor nor give that to Vice that was due only to Innocence witness that in the same Tragedy Hunc qui facinorum conscius nec legibus Fidens ad aras volvitur supplex Deûm Trahere ad tribunal nulla relligio mihi Mala semper aequum ferre qui fecit male From sacred Altars who to judgment draws A guilty Traytor that distrusts the Laws Doth nothing impious for just it is That he should suffer who hath done amiss So the same Poet elsewhere Non enim tangi decet Manu nocente numina at justum fuit Piis patere templa contra injurias With hands impure the Gods to supplicate Indecent is yet should the Temple gate Stand open for th' opprest to enter at Lycurgus the Orator relates a story of one Calistratus who having committed some hainous crime and consulting the Oracle about his safety received this answer That if he would fly to Athens he should have right done him In hopes of impunity he betakes himself to that Altar in Athens which was held the most sacred yet even from thence he was taken and put to death So also was Ferdinand Lord High Chamberlain of Portugal forced from the Altar Lib. 21. and burnt for ravishing a Noble Virgin as Mariana records So religiously did they distinguish between such as were criminous and such as were unfortunate Tacitus condemns some of the Grecian Cities of superstition who thought their Gods to be pleased with their protecting of Malefactors Princes saith he are like Gods for neither do the Gods themselves answer the supplications of the wicked Ann. lib. 3. and in another place he assures us Neque à diis nisi justas supplicum preces audiri That the Gods never heard the supplications of men unless they were just Such then as are notoriously faulty are either to be delivered up punished or at least banished out of their Dominions from whom they are demanded Lib. 1. Thus did the Cymaei in Herodotus who though they would not deliver up Pactyes the Persian whom notwithstanding they durst not keep yet chose that which was safest to both which was to suffer him to fly to Mitylene Thus Perseus King of Macedon in his Apology to Martius concerning those that had betrayed Eumenes pleads thus As soon as upon your information I found these men in Macedon I commanded them forthwith to depart my Kingdom and have for ever interdicted them my Dominions Thus did Queen Elizabeth answer the Scots who demanded Bothwell Camden An. 1593. That she was ready either to deliver him up or to banish him out of England Yet do the European Princes in most places at this day and in the age last past connive at one another for the reception of Malefactors unless they be such as disturb the publick peace or that are guilty of some egregious crimes for lesser crimes they usually pass by unless they are directly excepted against in the Articles of any League as it was in that made between England and France wherein it was agreed That Rebels and Fugitives should be delivered up And in that made with the Burgundians wherein it was provided that all such should be expelled as Camden testifies Anno 1600. However this is worth our observation That notorious Thieves and Pirates when through long and prosperous successes they are become formidable to their Neighbours may be protected as from punishment because it conduceth much to the common safety to withdraw such persons from their wicked practices by hopes of Indemnity in case it cannot otherwise be done this therefore any Prince or People may undertake to do VI. Yet may
commendable wherefore they that blamed King Perseus for suffering himself to be deluded through hopes of Peace had not so great a regard to justice and fidelity Liv. l. 42. as to the generosity of a mind emulous of Martial Glory as may be sufficiently collected from what hath been already said concerning the deceits and stratagems usual in War Such was that stratagem wherewith Asdrubal preserved himself and his Army out of the Ausetane Forests And that also whereby Scipio African the Elder See Bo. 3. c. 1. §. 6. c. Livy l. 26. lib. 30. discovered the situation of Syphax his Camp both which we find recorded by Livy whose example L. Sulla also followed in the social War at Esernia as Frontinus informs us V. Of dumb Signs which by custom are significant There are also some dumb signs which through custome are significant as testifying the consent of the will as of old the branches of Olives and among the Macedonians the erection of Pikes among the Romans the covering of their heads with their Shields these were then the usual signs of submission and rendition So also was the folding of the hands behind them among the Persians and the turning of their Shields and Ensigns downwards among the Romans Lib. 18. Lib. 26. Lib. 22. as Ammianus testifies The Germans and from them some other Nations express their submission by the holding forth of Herbs or Grass as Pliny tells us And they that yield themselves to the Conquerour do usually cast away their Armes and beg mercy as Servius notes upon Virgil. But he that would signify his acception of a surrender whether he be bound to give quarter and how far forth we may inform our selves by what hath been said above In our days the hanging forth of a white Flagg is a tacite sign that a Treaty is demanded So among the Northern Nations is the kindling of a fire as Johannes Magnus relates Pliny l. 15. c. 30. The like doth Pliny write of the Laurel all which according to the customes of several Nations are no less significant and consequently as obligatory as if they were exprest by words and voices VI. Of a tacite approbation of something demanded A Sponsion made by a General how far forth it may be believed to be tacitely approved of by the Prince or People we have already declared * Bo. 3. ch 4. §. 15. Bo. 2. ch 15. §. 17. as namely when both the act is sufficiently known and thereupon some thing done or not done whereof no other reason can be given but what proceeded from their consent to that promise or agreement VII Punishments when tacitely remitted We cannot conclude that a punishment is remitted because it is for a time dissembled or connived at but some other act must necessarily intervene which either by it self may argue either a perfect reconciliation as when a League of friendship is made with such a man or at least that the person offended hath so great an opinion of the vertue or the valour of the person punishable that what he formerly did deserves to be pardoned whether this opinion be by words exprest or by such other means as are usually taken to signifie as much VIII Whether the actors being pardoned the instigators be also acquitted Another Question we find discust by Polybius namely Whether a punishment being remitted to them that did the mischief may be judged to be remitted to them that commanded it to be done which I conceive it ought not for Singulos tenent sua delicta Every Fox ought to pay his own skin to the fleaer and every offender bear his own punishment A TABLE put Alphabetically guiding to the PRINCIPAL MATTERS and WORDS contained in the TREATISE A. ABraham declaring Sarah to be his Sister did not deny her to be his Wife page 438 Abraham by the light of Nature made War upon the four Kings with Commission from God 13 15. and gave the Tenth of the Spoil unto God page 468 Abraham's Sons by Keturah had Legacies no Lands page 125 Abraham assists Infidels in a Social War page 185 The Absents Right devolves upon the Present page 114 The Absent sometimes partake of the Spoil page 476 Absolutions and Dispensations from Oaths from whence they arise 174. to whom they anciently belonged ibid. Abstinence from spoiling a Country at Peace page 431 432 Absurdities to avoid conjectural Interpretations admitted 197. or other improper or figurative page 192 193 What is Accepted in full of a Debt is a Discharge page 98 Acceptance to a Promise that transfer a Right requisite 154 155. whether it be necessarily to be made known to the Promiser page 155 Acceptance in the behalf of another of what force page 156 Accusations criminal by none but Persons Authorized page 374 Acquisitions by War peculiar to a solemn War 480. naturally just 405. original Acquisitions page 88 Acquisitions improperly said to belong to the Law of Nations page 134 To Actions two things excite the goodness of the end and the facility of obtaining it page 419 Acts some abhorred by humane Nature page 6 Acts contrary to Oaths sometimes sinful sometimes void page 173 Acts beneficent permutatory page 157 Acts diremptory commutatory mixt page 158 Acts generally permitted to all cannot justly be denied to any without some Cause page 86 Acts in War either publick or private what is taken by the former is the States maintaining the War what by the latter is theirs that take it page 472 In such Acts of a King as private men do the Civil Law binds him but not in such as he doth as a King page 177 Acts against Conscience unlawful page 411 Acts not liable to humane Laws page 450 Acts of Kings in which the Laws have power page 176 Acts internal of the mind insufficient for alienation page 41 Act involuntary arising from voluntary naturally accounted as voluntary page 203 Acts inevitable to humane Nature not subject to humane Laws 374. nor such â—s are not directly or indirectly destructive to humane Society page 375 Acts some in a Just War not internally just page 498 Acts of prepensed maâ—â—â— are to be punished of humane frailty and are to be chastised of inevitable misfortune are to be pardoned page 500 Actors being forgiven whether the Instigator be acquitted page 370 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 136 Admonitions concerning things done in an unjust War page 494 Adopted Sons what Right a man hath over them page 115 Adultery Incest c. capitally punished before Moses page 16 Adultery to lye with a Woman betrothed to another page 196 Of Adultery he that puts away his Wife and he that marries her both guilty by the Gospel page 106 In Adultery taken if the Husband kill the Wife or the Wife her Husband the Magistrate may remit the punishment but not the sin page 374 An Adulterer and an Adulteress to what obliged page 202 Aetolians Souldiers of Fortune page 549 Age 30. years 3. Ages 100. years
236. under Alexander deny to carry Materials to the Temple of Belus 428. in what Cases not to associate with wicked Kings page 185 Ignorance excuses when page 237 Ignorants to be spared in a Just War page 500 Ignorantly and through Ignorance distinguished ibid. Islands and Increments by inundation whose 136. floating 137. how distinguished from Increments ibid. Images abhorred by the Persian Magi 466. to deface to him that believes to include a Deity impiety ibid. Imperare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 50 Impiety and open profaneness towards any that is acknowledged as God punishable page 392 Imprisonment unjust to what it obligeth page 201 Importation of some goods prohibited page 86 Of Inequality The Law of Nation takes no cognizance if consented unto page 165 Incestuous Marriages forbidden by the Law of Nature 107. two reasons given against such page 109 An Increment what is thereby meant 138. whether stopt by an Highway 139. it is his whos 's the River is oâ— his whos 's the Grounds are that bound it 138. it is his to whom the Land is granted if the Land be arcifinious ibid. if in doubts is the peoples ibid. whether it may belong to the Princes Vassal ibid. Indians many Wives 106. no Tribunals but for murder and injuries done page 211 Induciae whence page 558 Infants capable of Dominion 89. but not to dispose thereof without a Guardian ibid. so is he to inherit but not to dispose of it page 103 Infeudations 119. made by Kings without the peoples consent void with consent how gained ibid. Ingratitude of the Romans punished by M. Levinus with disfranchizement page 39 To Inhabit any Country free for Exiles page 85 Injuries faults mischances distinguished 500 on the one side makes War just on the other 70. what oblige to restitution what not page 531 Injure others we ought not to benefit our selves page 82 Injuries done us by our Country Prince Parents to be patiently born page 58 Injuries intended only sometimes punished page 383 Innocents to be defended page 425 426 The Innocent not to be destroyed with the Nocent page 504 The Innocent falshood of Joseph to his Brethren page 443 Instruments of the Plough not to be taken in pawn page 514 To Insult over the Vanquished ignoble page 506 507 Intent sometimes equally punished with the fact 381. though ill obligeth not to restitution page 383 Invaders Command how far obliging 62. in what Case he may be killed by a private man page 65 For the Interpretation of Promises and Contracts some Rules page 193 What Interpretations given to contracts between Enemies 558. if odious in their full propriety if ambiguous in the largest sense page 193 Interpretation of Leagues 190 sometimes gathered from the Context 191 192. if in doubt ought to favour the weakest page 548 Intestates Estate to whom naturally it descends page 122 Invasion made by Confederates or their Subjects whether it break the Peace 548. by Subjects when attributed to the Prince ibid. By Inundation the Owner may lose his Right page 137 Inundations and Increments thereby gained page 136 137 Josephus in expounding the Hebrew Law flatters the Romans page 466 To Judge of the Cause of a War between Princes dangerous page 457 The Judges Office in criminal Causes dangerous page 373 A Judge should be tenderly affected as a Father 416 417. may be punished his Sentence being unjust but not the Executioner 429. said to be just though the Sentence be unjust page 55 In Judgment the matter not the Persons to be considered page 3 4 To Judge of a mans meaning by his speech how due page 441 Judgment of zeal what page 445 Judgment contemplative and practical page 429 Judging of the Supreme Power Caâ—tions page 41 The Judgment how steered in doubtful Cases page 411 Against Judgment though erroneous nothing to be done ibid. Judgments Capital why by Christ permitted 372 373. Christians may execute them but not affectedly ibid. Jus and Justice how distinguish'd page 494 Just in War what page 2 Just taken strictly what page 414 Justice derived from Jove Pref. vi Justice and Valour usually attended by Victory xii Justice Expletive and Attributive page 4 Just Cause procures Friends xii Just Cause adds courage to Souldiers ibid. Justice Commutative or Expletive page 3 Justice how described by Porphyry v. preferred to fortitude x. it begets courage 430. it so gives to every one his own that it detracts not from the just Right of another 198. it should extend it self to all Mankind x Where Justice is not required the longest Sword takes all page 435 K. KEturah's Son by Abraham received Gifts or Portions but no Inheritances page 125 He that Kills an Enemy in the War is guiltless page 357 To Kill a man for slight injuries is againast Charity 73. in defence of our Goods naturally not unlawful page 74 To Kill a private man is murder but thousands in an unjust War Valour and Vertue page 70 To Kill a Nocturnal Thief whether tolerated only by the Civil Law or approved 75 76. an incorrigible Malefactor not against the Law of Nature page 368 To Kill an Enemy after Battel against Charity page 506 To Kill an Enemy privately in his own Quarters whether lawful page 462 To be Killed none for his valour in defence of his own cause if good page 568 To Kill all that have offended brutish page 501 Who may be justly Killed in a just War according to Justice internal page 498 Kings Grants when revocable and when not 180. their Contracts do not always bind their Successors page 178 179 Kings how they serve God as Kings page 17 18 Kings whether bound by prescription see Prescription Kings that make Laws not subject to Laws 377. not all constituted by the People 40. not bound by their own Laws directly 101. in name some not in power 39. whether he may renounce his Kingdom so as his Son shall not inherit page 131 Kings raised by providence fit for the times and People 41. they have no superiour but God 40. their vices must be born with patience ibid. to revile them is wicked but to kill them though wicked horrid page 39 A Kings person to be spared in cases of absolute necessity page 66 Kings regard honour more than power yet doth not this abate of their Right 54. their private Acts subject to the Laws page 177 Against Kings the Law that makes void any private mans Acts by way of Punishment is void ibid. Kings Promises Contracts and Oaths page 176 A Kings word as firm as an Oath page 175 A King may null his own Oath as private men antecedenter not consequenter 177. whether he may revoke his own acts which he doth as a King page 176 Kings defended by severe Laws page 61 By the Contract of a King how the Heir may be bound page 178 How a King may be bound to his Subjects naturally and how civilly page 177 Kings bound by their own Laws as a member not as the body
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseâ—t 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
Mark Mark Ch. 6 Ver. 45 He constrained his Disciples p 390 Mark Ver. 48 Made as if he would have gone p 439 Mark Ch. 14 Ver. 21 It had been better p 366 Luke Luke Ch. 2 Ver. 1 All the world p 407 Luke Ch. 3 Ver. 14 Be content with your wages p 23 53 Luke Ch. 13 Ver. 33 A Prophet perish out of Jerusalem p 48 Luke Ch. 14 Ver. 23 Compel them to come in p 390 Luke Ch. 17 Ver. 3 Forgive if he repent p 371 Luke Ch. 18 Ver. 7 8 Shall not God revenge p 33 Luke Ch. 22 Ver. 30 Destroy this Temple p 441 Luke Ver. 36 Buy a Sword p 33 Luke Ch. 24 Ver. 28 Made as if he would have gone p 438 John John Ch. 4 Ver. 9 Water of the woman of Samaria p 185 John Ch. 8 Ver. 7 Cast the first stone p 363 John Ch. 11 Ver. 11 Lazarus sleepeth p 440 John Ch. 33 Ver. 21 Destroy this Temple p 441 John Ch. 18 Ver. 8.9 Suffer these to go p 33 John Ver. 36 My Kingdom is not of this p 408 Acts. Acts Ch. 10 Ver. 2 Cornelius p 8 Acts Ch. 13 Ver. 2 Sergius Paulus p 20 Acts Ch. 16 Ver. 3 Paul circumciseth Timothy and why p 439 Acts Ch. 17 Ver. 4 Pious Grecians p 8 Acts Ch. 25 Ver. 11 I refuse not to dye p 21 Acts Ch. 26 King Agrippa p 18 Acts Ch. 28 Ver. 18 They found no cause of death in me p 20 Romans Rom. Ch. 2 Ver. 14 By nature the things of the Law p 9 Rom. Ch. 3 Ver. 27 The Law of works p 17 Rom. Ch. 5 Ver. 12 Judge those that are without p 408 Rom. Ch. 7 Ver. 12 The Law is holy and just p 10 Rom. Ver. 14 Spiritual Law p 17 18 Rom. Ch. 10 Ver. 5 The Law leadeth unto Christ p 10 Rom. Ch. 12 Ver. 19 Avenge not your selves p 31 33 Rom. Ch. 13 Ver. 1 Let every Soul p 18 24 59 Rom. Ver. 2 Subject not resist p 55 Rom. Ver. 4 For Conscience sake p 33 Rom. Ver. 5 He is the Minister of God c. ib. Rom. Ver. 6 Tribute p 20 Rom. Ch. 14 Ver. 23 Whatsoever is not of Faith is sin p 411 1 Corinthians 1 Cor. Ch. 4. Ver. 6 p 439 1 Cor. Ver. 4 5 6 7 Christians not to go to Law p 21 1 Cor. Ch. 6 Ver. 17 All things are lawful p 456 1 Cor. Ver. 10 Who without repentance p 49 1 Cor. Ch. 7 Ver. 21 Servants be content p 407 1 Cor. Ver. 25 No Commandment from the Lord. p 109 1 Cor. Ver. 36 Virgins not to chuse for themselves p 107 1 Cor. Ch. 11 Ver. 14 Men not to wear long hair p 165 2 Corinthians 2 Cor. Ch. 2 Ver. 20 Yea and Amen p 174 2 Cor. Ch. 6 Ver. 14 What fellowship hath Christ with Belial p 186 2 Cor. Ch. 10 Ver. 34 The Weapons of our Warfare p 24 2 Cor. Ch. 12 Ver. 14 But Parents for their children p 124 Galatians Gal. Ch. 3 Ver. 25 The Law is our guide p 10 Gal. Ch. 4 Ver. 1 The Pupil during non-age p 89 Gal. Ch. 6 Ver. 5 Servants not to fly p 116 Ephesians Eph. Ch. 2 Ver. 3 By nature children of wrath p 165 Eph. Ver. 14 The Partition wall p 9 20 Eph. Ch. 6 Ver. 12 Wrestle not against flesh p 24 Philippians Phil. Ch. 4 Ver. 8 All honesty and vertue p 21 Colossians Colos Ch. 3 Ver. 22 Servants to please their Masters p 117 1 Thessalonians 1 Thess Ch. 1 Ver. 15 Equally yoked with unbelievers p 186 1 Timothy 1 Tim. Ch. 2 Ver. 1 2 3 Prayer for Kings p 17 1 Tim. Ch. 5 Ver. 3 17 To honour is to do good p 170 Titus Tit. Ch. 2 Ver. 9 Servants not to fly from their Masters p 116 117 Hebrews Heb. Ch. 4 Ver. 17 By which it is impossible that God should lye p 168 Heb. Ch. 7 Ver. 4 The Tenth of the spoyl p 468 Heb. Ver. 16 The Law of a carnal Commandment p 17 Heb. Ver. 19 The Law imperfect p 10 Heb. Ch. 8 Ver. 7 Had the first Covenant been blameless ibid. Heb. Ch. 11 Ver. 6 Religion an access unto God p 388 Heb. Ver. 34 By Faith p 13 James James Ch. 4 Ver. 1 Whence cometh War p 24 James Ch. 5 Ver. 12 Above all things swear not p 174 1 Peter 1 Pet. Ch. 2 Ver. 1 To Kings as supreme to Magistrates as subordinate p 58 59 1 Pet. Ver. 17 18 Honour the King servants be subject p 57 1 John 1 John Ch. 2 Ver. 16 The lust of the flesh of the eyes p 379 1 John Ch. 3 Ver. 16 Lay down our lives for our brethren p 34 1 John Ch. 5 Ver. 16 Sin unto death p 366 THE EPISTLE TO THE READER THE Author of this Translation was by Profession a Divine Eminent for Learning and well skill'd in the Civil Laws He was a great Admirer of the Works of Hugo Grotius anâ— valued him particularly upon this Treatise of the Rights of War and Peace wherein finding matter fit for a general communication he thought it well worth his time to Translate It was the Labour or rather Pastime of the last Seven Years of his Life to perfect it which he intended to Print during his Life And so we found it in his Study after his death And although it added nothing to the value of his Estate yet we to whom he committed the care of all the rest thought it our duty to make this Publick believing it would prove a more durable Monument to preserve his Memory than any other we could raise unto him Whilest it was in the Original it was a Jewel but hid from Vulgar Capacities it is no less a Jewel now it is made intelligible to every Capacity We shall not enlarge this Epistle in Praise either of the Work or the Author the Translation being sufficient for both if thou wilt take the pains to Read it John Nelham Thomas Whitfield Nov. 1681. Hugh Grotius OF THE RIGHTS OF PEACE WAR BOOK I. CHAP. I. What War is And what Right is I. The order of the whole Treatise II. The Definition of War and the original of the word Bellum III. Right as it is Attributed to Action defined and divided into that which concerns Governours and that which concerns Equals IV. Right taken for a Quality divided into Faculty and Aptitude or fitness V. Faculty strictly taken divided into Power Dominion and Credit VI. Another division of Faculty into that which is vulgar and that which is High and Eminent VII Aptitude what VIII Of Expletive and Attributive Justice not rightly distinguished by Geometrical and Arithmetical proportions nor in that this is conversant about things common that about things private IX Right as taken for a Law how defin'd and divided into Natural and Voluntary X. The Law of Nature defin'd divided and distinguisht from such as are not properly so called XI That Natural Instinct either common with other living Creatures or
read 1 Sam. 9.16 and 1 Sam. 10 1. still it is super eos not under my people but over them not under them to serve them but over them to save defend and deliver them Thus David and Solomon are said to be anointed over the people over the Lords anointed and over Israel And David gives thanks 2 Sam. 5.2 1 Kings 4.1 Psal 144.2 that God had subdued his people under him Christ also declares as much where he saith The Kings of the Gentiles exercise dominion over you Luke 22.25 The Power of Kings o're Subjects is their own Horace But none can Kings command but God alone The three Forms of Government are by Seneca thus described Ep. 14. Sometimes the people are most to be feared sometimes if the Government be such those most in favour with the Senate and sometimes those particular persons upon whom the whole power of the people and over the people is devolved For such saith Plutarch have power to govern not only according to the Laws but even the Laws themselves for the publick good Flam. Thus Otanes in Herodotus describes a King That he may do even what he will without being accountable to any So doth Dion Prusaeensis That he may so rule as not to render an account to any Pausanias to the Messenians opposeth Kingly Government to that which is lyable to give an account of his Acts to others Aristotle affirms That there are some Kings who are invested with as much power as elsewhere a whole Nation hath over it self or whatsoever it hath So as soon as the Roman Generals began to assume unto themselves Regal power Uno minor Jove That Kings Inferiour to God alone is no less Christian than Ethnick Philosophy For in this and in nothing more are Kings like unto God that they depend upon none He whom God hath placed in his Throne is accountable to none but unto him who placed him there He is Solutus Legibus above the lash of humane Laws He judgeth all but is judged of none When Herod was accused to M. Anthony for the Murder of Aristobulus Anthony makes this Apology for him It was neither Just nor Equitable to require an account from Kings for what they do as Kings For if that were permitted they could be no longer Kings Kingly Power then must needs be the highest because there lyes no Appeal from him or against him but unto God And as it is subject to no other power so it is bounded by no humane Law as other powers are 'T is granted that Moses indeed seems to prescribe Laws unto Kings and tells them what they should do And good Princes will say with the Emperour Theodosius Tantum mihi licet quantum per Leges licet That only is lawful for me to do which the Laws account so But as Moses teacheth us what a King should do so Samuel tells us what a King may do Moses tells us his duty Samuel his power The Law consists of two distinct parts the one Direct the other Coercive the former points at the rationability of the Law the latter at the danger we run into if we break the Law Now Laws serve to direct Kings because they mind them of their duty But they have no power to force them to that duty much less to Un-King them if they do it not the people are said to confer upon them all their power and authority over themselves as Theophilus expounds it Hence is that excellent saying of M. Antoninus None but God himself is the Judge of Kings Dion Prusaensis speaking of such a King saith He is free and absolute in power both over himself and over the Laws what he will he doth and what he will not he doth not Such anciently in Greece was the Kingdom of the Inachidae at Argis whom Moses terms the Anakims Deut. 2.10 For the Argives in Aeschylus thus bespeak their King Our State and City is in thee The Lacedaemonians in the Story of the Macchabites claim to be of Kin to Abraham they had two Kings but Magis Nomine quam Imperio More in Name than Power as Cora Nepos testifies Thou need'st not fear Laws Tyranny Sacred as Altar is thy Throne For all are Rul'd by thee alone Much different from what Theseus himself though a King speaks in Euripides concerning the Common-wealth of Athens Athens being Free Enslav'd by any one disdains to be The People there are Kings who Annually The Government to this or that decree For Theseus as Plutarch informs us was not their King but their General in War and the Guardian of their Laws in peace in other matters he was but equal with the rest of the Citizens Hence it comes That those Kings that are accountable to the people Lib. 3. Vit. Cleom. Vit. Ages as those after Lycurgus but especially as the Ephori were to the Lacedaemonians are by Polybius Plutarch and others said to be Kings in Name only but not in Power which example of the Lacedaemonians notwithstanding most of the Graecian Cities followed Pausanius to the Corinthians thus testifies of the Argives Corinthiacis Kings in name only not in power That they were so far addicted to parity and liberty that at length they reduced the power of their Kings to almost nothing for to the Sons and Posterity of Cisus they left not any thing but the bare Name and Title of a Kingdom And therefore Aristotle denyes that such Kingdoms do constitute any special Form of Government allowing them but as parts either of Optimacy or Democracy Nay even among such people as were not perpetually governed by Kings Some have for awhile the power but not the name we may find some footsteps of a Temporary Monarchy not at all subject unto the People M. Livius Solinator in his Censorship disfranchised all the Tribes but one in Rome for their Ingratitude thereby shewing his power over the whole body of the people And such was the power of the Dictators in Rome from whom there was no Appeal no not unto the People whence it came to pass that as Livy informs us An Edict from the Dictator was as Authoritative as an Oracle from God Dictators in Rome temporary Kings 1. Arg. answered The Thing that constitutes not always greater than the thing constituted Neither was there any safety at all but in obedience For though Kings were banished yet was the Regal Power comprehended in the Dictatorship The Arguments produced for the contrary opinion are easily answered For in the first place Whereas they say the Thing that constitutes is greater than the Thing constituted and therefore the people that make the King must needs be greater than the King they have made I answer That it is true where the Authority of the thing constituted doth always depend on the will of the Constitutors but not where the Authority once freely given doth ever after fully remain in the person that received it As for example A
also those that succeed to them in a right line hold their Kingdoms by an Usufructuary right that is they hold them as to all the rights and profits but not to alienate them But others hold their Kingdoms by a full Right of Propriety as they that by a just War have conquered them Or he to whom any people to prevent greater mischiefs have yielded themselves Subjects for protection so as they reserve nothing unto themselves Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power because it was not perpetual For the Nature of all Moral things are best known by their operations Wherefore those powers that have the same effects are to be called by the same name But a Dictator during his time exerciseth all Rights that a King doth who holds his Kingdom by a full right Neither can any Act of his be made void by any other as may appear by the Case of Fabius Rutilianus whom when the people would have preserved they could deal with the Dictator by no other means but by Petition Whence we may conclude That he had the same supreme power Now the Duration or Continuation of a thing alters not the nature of it yet if question be made concerning the dignity which is usually called Majesty doubtless he that hath it perpetuated unto him hath the greater Majesty than he that hath it for a time limited only because the manner of holding it adds much to the Dignity of him that holds it Now what hath been said of Kings Protectors have absolute power during their time may also be said of such as are either during the Minority of Kings or during their Captivity or Lunacy appointed Protectors For neither are those subject unto the people nor is their power revocable before the time come appointed by the Laws But it is otherwise with those who have a Right which is at any time revocable Some Kingdoms held during the plâ—asure of the people Procop. Vand. lib. 1. As they who reign only during the pleasure of others such was the Kingdom of the Vandals in Africa and of the Goths in Spain who were as often deposed as they displeased the people And every act of theirs might be made void because they who gave them that power gave it under condition of Revocation And therefore not having the same effect they could not be said to have the same Right XII Some Soveraign powers are held fully with a right of alienation Against what I have before said That some Kingdoms are held in full right of propriety that is as Patrimonial There are very learned men that make this objection That Men being free are not to be traffickt away from one to another as things that are bought and sold But as the power of a Master is different from that of a King so is personal liberty from that which is Civil And the freedom of singular persons from the freedom of States The Stoicks themselves confess That there is a kind of servivitude in subjection Hottom Cont. illust qâ—ae i. 1. Diog. Laâ—â—t 1 Sam. 22.28 2 Sam. 10.2 1 King 9.22 Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants As personal liberty excludes the power of a Master so also doth civil liberty that of Empire and all manner of Soveraignty properly so called Livy thus opposeth them Before men had tasted the sweetness of liberty they desired a King And again What a shame is it for the people of Rome who when they served under Kings were never straitned by War nor besieged by an enemy Lib. 45. being now a free people to be besieg'd by the Hetruscans And in another place The people of Rome live not now under Kingly Government but in liberty And elsewhere he opposeth those Nations that were free unto those that lived under Kings So also Seneca the Father Sâ—as 1. We ought not to give our opinions in a Free state in the same manner as we did under Kings Yea and Cicero Either we did not well to expel Kings or we ought to restore the people to liberty De leg 3. Ann. l. 1. not in words only but in deeds After these comes Tacitus The City of Rome saith he was at first governed by Kings but it was L. Brutus that instituted Liberty and Consular Authority And to be short every where among the Roman Laws when they treat of War and recuperatory Judgements all Foreigners are distinguisht into Kings and Free people The question then here put respects not personal but civil subjection In which sense some Nations are said not to have power over themselves Hence is that in Livy Which Cities Fields and Men were sometimes under the power of the Aetolians And that also Are the people of Collatia a free people i. e. have they any power over themselves Nevertheless to speak properly when any people are said to be alienated When a Kingdom is alienated it is not the people but the right of governing them that is alienated it is not the men but the perpetual right of governing themselves as they are a people that is alienated As vain and frivolous is that Inference which concludes That because Kings conquer Nations by the blood and sweat of their Citizens therefore what is so conquered ought of right to belong rather to them than to him For possible it is That that King may pay his Army out of his own private estate as M. Anthony did in his Bohemian Wars who when the Roman Treasury was exhausted being unwilling to impose any more Taxes upon the people brought into Trajans Court and made sale of all his Vessels of Gold Silver Crystal and Myrrh together with his own and his wives Robes of Silk and Gold and all other their Ornaments and Jewels for the maintenance of the War Or he may pay his Army out of the rents and profits of that patrimony which attends the Principality And therefore Ferdinando claimed to himself all that part of the Kingdom of Granada which he had gained with the rents and profits he had raised out of Castile during the time of his Marriage as Mariana testifies Lib. 28. Hist Hispan For although a King have but the mean profits arising out of that Patrimony in the same manner as he hath the right of governing the people who have elected him yet are those profits properly his own As it is also in the Civil Law where though the Inheritance be judged to be restored yet the profits are not because they are perceived not from the inheritance but from the thing it self Possible therefore it is that a King may be so possest of the Government over some people in his own proper right that it is in his own power to alienate it As it was granted to Baldwin by those that accompanied him in his expedition to the Holy Land That the half of
all the Cities Provinces Tributes and Prizes that should be taken in that War should be his Strabo tells us Lib. 8. That the Isle Cythara lying against Tenarus did belong to Euryclis one of the Lacedaemonian Princes in his own Right So we read that Solomon gave Hiram of Tyre twenty Cities not of those that belonged to the Hebrews 1 Kings 19. For Cabul which was the name imposed on those Cities was seated without the Hebrew bounds Jos 19.27 But out of those which the people that were enemies to the Jews 1 King 9.6 12. had held till the days of Solomon and were partly conquered by the King of Egypt and given unto Solomon in dowry with his daughter and partly conquered by Solomon himself For that these Cities were not at that time possest by the Hebrews is evident from this 1 Chron. 8.14 That as soon as King Hiram had restored them to Solomon he then planted in them a Colony of the Jews Diod. l. 4. So we read that Hercules gave the Kingdom of Sparta which he had conquered by arms unto Tindareus on this condition That if Hercules should have any children of his own she should restore it to them And having conquered the Epirots he gave them to Apollo So we read that Aegimus King of Doris Serv. ad 4. Aenead Apollod having called to his assistance Hercules in his War against the Lapithae gave him a part of that Kingdom as his reward Cychreus King of Salamine having no children left his Kingdom by his Testament unto Teucrus Amphipolis was given in a Marriage dowry to Acamantes the Son of Theseus And in Homer Agamemnon promises to give unto Achilles seven Cities So King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Vid. Serv. ad 6. Eclog. So again in Homer we read that Jobates gave his daughter to Bellerophon with a part of his Kingdom in Dowry And Justin tells us Lib. 5. That Darius bequeathed by his Testament his Kingdom to Artaxerxes but the Cities whereof he was governour only to Cyrus And probable it is That the successors of Alexander every one for his part did succeed him in that full Right of Governing the Nations which were either formerly under the Persian Empire or which they afterwards gained by the right of their own Conquests And therefore it is not to be wondred at that they claimed unto themselves the Right of Alienation So when King Attalus the Son of Eumenes had by his Testament made the people of Rome heir to all his goods they under the name of goods possessed themselves of his Kingdom whereof L. Florus speaks thus The Word Heir implying an Inheritance Lib. 2. Epit. Liv. 58. the people of Rome held his Kingdom as a Province and not as gained by War or by force of Arms But by what was yet more righteous by a Testamentary Right So when afterwards Nicomedes the King of Bithynia dying made the Romans his heir They presently reduced his Kingdom into the form of a Province Orat. 2. In Rullum Whereof Cicero thus We have added to our Inheritance the Kingdom of Bithynia So that part of Libia wherein the Cities Berenice Ptolomais and Cyrene stood was by King Appio given by Testament to the same people And Tacitus makes mention of some Fields Epitom Livy l. 43. Ann. l. 41. which belonging formerly to King Appio were by him left together with his Kingdom to the people of Rome Procopius likewise tells us That King Arsaces by his Testament divided the Kingdom of Armenia leaving the greater Armenia to Arsaces and the lesser to Tigranes And hence it was That King Herod having obtained from Aug. Caesar a Power to leave his Kingdom to which of his Sons he pleased Josephus was so often observed to alter his Testament This custom also was much in use amongst the Goths and Vandals Procopius in those Kingdoms which they held by Conquest The same we may observe much practised among the Turks Sultan Aladine bequeathed by his Will many Cities to Osman Leunclavius lib. 2. Bajazet also gave diverse of the Cities of Servia to Stephanus in favour to his own Wife being Sister to Stephanus Sultan Mahomet bequeathed his Kingdom by his Testament to Sultan Morat Idem lib. 4. and Mahomet the Turk intended to have divided his Empire and to have left the Asian Empire to Mustapha and the European to Amurat. This also was frequently used in many other Nations To rehearse them all would be no less troublesome to me than it would be tedious to the Reader But these may suffice to prove That where Kingdoms are held by a full and absolute Right they may be alienated Yet so That though the Right of Empire may be transferred yet doth every singular person enjoy his own Liberty XIII Some are held not so fully But in those Kingdoms wherein the people have any power by way of Election or Confirmation I confess it cannot be presumed That it was ever their Mind to suffer the King to alienate his Kingdom Wherefore what Crantzius observed in Vnguinus as an Act without any Precedent That he had by his Testament given away Norway we ought not to disapprove For haply he regarded only the Customs of the Germans amongst whom there was no such Right permitted as to bequeath Kingdoms For as Vopisâ—us in Tacitus saith Empires cannot be bequeathed as goods and bond-slaves may Nor can a King as Salvian observes by his Testament bequeath the people whom he hath governed to the poor Now whereas Charles the Great Lewis the Good and others afterwards among the Vandals and Hungarians are said to dispose of Kingdoms by their Testaments These afforded rather matter of praise among the people than argued the force of a true Alienation And as to that of Charles Ado makes special mention that he desired his Testament might be confirmed by the Peers of France The like we find in Livy concerning Philip King of Macedon who endeavouring to expel Persis out of his Kingdom and settle Antigonus his own Brothers son in it went throughout the Cities of Macedon solliciting the Princes on his behalf Neither is it to the purpose to object That the same Lewis restored the City of Rome to Pope Paschal Considering that the French having before received the Soveraignty over that City from the people might very well restore it back again to the same people in the person of the Pope being their chief Citizen and a Prince of the first order XIV Some power not Supreme yet fully held What we have hitherto admonisht namely That we are carefully to distinguish between the supreme power it self and the manner of holding it is so true That as many Soveraign Empires are not held by a fast and absolute Right so there are many that are not supreme that are fully and compleatly held whereby it falls out that Marquisates and Earldoms are much more easily either
their Kings inviolable whilest they lived and also deterred them from breaking their oaths and promises by the fear of a dishonourable Interrment being dead The Kings of Epirus were wont to make oath That they would rule according to the Laws And their Subjects likewise bound themselves by Oaths to defend both him and the Kingdom according to the same Laws as Plutarch informs us in the life of Pyrrhus Nay further suppose a King should accept of his Kingdom upon these terms That in case he should falsifie his promise he should lose his Kingdom yet were his power supreme only the manner of holding it would be so much impaired by such a condition as would make that Government not much better than that which is Temporary It was said by Agatharchides concerning a King of the Sabaeans That he was not liable to give any account of his Actions as King and yet if ever he were seen out of his own Palace he might be stoned to death justly Which Strabo also notes out of Artemidorus So that Land which is held upon condition of some Trust to be performed is held as sully during the performance of that Trust as that which is held absolutely But yet it is possible that it may be lost and such a conditional Law may be added not only in conferring of a Kingdom but in any other Contract For some Leagues with our Neighbour Princes we see entred into under such penalties As in case a King being at his admission sworn shall break his Articles of Agreement his Subjects shall not help him no nor obey him So Crommerus testifies in his Treatise concerning the affairs of Poland Ch. 19 21. XVII It may sometimes be divided The Fourth thing is this That though the Soveraign Power be but one and of it self indivisible consisting of those parts above mentioned adding thereunto Supremacy that is the being accountable to none Yet it may so fall out that sometime it may be divided either by Parts which they call Potential or by Parts which they term Subjective As though the Roman Empire were but one entire thing yet it so sell out sometimes that one held the Eastern and another the Western part of it or that three sometimes divided the whole between them So also it may fall out that the People electing a King may reserve some Acts to themselves and transfer others to their King to be held in full Right Which notwithstanding is not done as I shewed before whensoever the King shall oblige himself by some promise But then only when either the Partition is expressly made as in the time of the Emperour Probus when it was agreed That the Senate should confirm the Princes Laws Vid. Gail lib. 2. Obs 157. and that they might take cognizance of Appeals appoint Proconsuls and give Legates unto the Consuls Or when the people being as yet free shall require it from him whom they chuse to be their King by way of a permanent Law or Precept Or if some such thing be added whereby it may plainly be understood that their King may be compelled or punished if he refuse To command argues a superiour but not to compel For a Precept or Command is commonly from a Superiour at least in that which is commanded but to compel doth not always argue a superiour For naturally every man hath power to compel his Debtor to do him justice but it is repugnant to the nature of an Inferiour And therefore from Compulsion there must naturally follow at least a parity and consequently a division of the Soveraign Power Many Allegations are usually brought against this bipartite state But as we have already said In civilibus nihil est quod omni ex parte incommodis caret Jus non quod optimum est huic aut illi videtur sed ex voluntate ejus unde jus oritur metiendum est In Civil matters it is not possible to provide against all Inconvenience no one Law can exactly fit every mans case no more than any one Shooe can fit every mans Foot neither is any thing accounted Right by seeming so to this or that person but by the will of him who was the Law-maker An excellent example of this is brought by Plato in the third Book of his Laws For when the Heraclidae had built Argus Lacedaemon and Messena they obliged their Kings to govern them according to Laws prescribed them which whilest they did the people also were obliged to continue their Kingdoms unto them and to their posterity and not to suffer any man to take them from them And for the better assurance of this Agreement not only the Kings bound themselves by Oath to their Subjects and the Subjects to their King but the Kings bound themselves each to other and the people of their respective Kings one to another and the Kings gave their faith to their neighbouring people and those people to their neighbouring Kings each King and people promising their mutual aid and assistance in defence of the Government established amongst them Many examples of this kind may be collected out of the Histories of our Northern Nations as in Johannes Magnus his History of Sweden and in Crantzius of the Swedes and Pontanus of the Danes XVIII Which is ill collected from this That some Princes will have their Acts confirmed by the Senate True it is that some Kings will not permit that some Acts of theirs shall be of force until they are confirmed by the Senate or some other Commissioners Yet he that shall hence inferr That there is a Partition of power will be mistaken For whatsoever Acts are thus rescinded ought to be understood as though they were made void by the King himself who by this means provides that nothing fraudulently gained from him shall pass to his disadvantage This was the scope of that Rescript sent by Antiochus the Third to his Magistrates That in case he commanded them to do any thing contrary to Law they should not obey him And of that of Constantine to his That Widows and Orphans should not be compelled to come for Judgement to the Court of the Emperour although the Emperours own Letters should be produced for it This is very like unto those Testaments unto which this clause is added That no Testament hereafter to be made shall be of force For such a Clause would have it believed that the latter Testament proceeded not from the will of the Testator But as that clause in the Will so the first Act of a Prince may by any after-Act of his or by any special Indication of his later Will be easily rescinded XIX Some other examples hither ill drawn Neither am I at all swayed by the authority of Polybius who would fain have the Romans to be a mixt Common-wealth which if we regard not so much the Acts themselves as the Power whereby they were done was doubtless at that time meerly popular For as well the Authority of the Senate which
Common-wealth may not only be by force resisted but if it be necessary may be punished with death As it befel Pausanias King of the Lacedaemonians of whom Plutarch thus The Spartans taking to heart the death of Lysander sentenced their King to death Plut. vit Lysand because leaving Lysander out of Cowardise whom he was sent to relieve he had fled for safety to Tegra The like he records in the life of Sylla The Spartans saith he deposed some of their Kings as being unfit for Government because they were of low and abject Spirits Yea and of Agis he reports That being their King yet was condemned though unjustly Now seeing that there were in Italy diverse such Kingdoms it is no marvel that Virgil having first recorded those many wicked Acts done by Mezentius adds Th' Hetrur'ans therefore all in a just rage To bring their Kings to Judgement do engage Of whom an old Hetrurian South-sayer spake thus Whom their just Woe Arms as against a Foe IX Or against King that hath renounced his Kingdom Secondly If a King or any other shall renounce his Empire or manifestly forsake it against such a Prince or King after that time any thing is lawful that may be done to a private man But this then we must observe That he that is careless and negligent only in his Government cannot thereby only be judged to have forsaken it X. Or against a King that would alienate his Kingdom Thirdly It was the opinion of Barkley That if a King would alienate his Kingdom or subject it to another he lost it But here I make a stand For if the Kingdom be Elective or descend by succession such an Act of Alienation is in it self null And whatsoever is in it self null can have no effects of a just Right Wherefore as also of that Kingdom that is barely usufructuary whereunto I have likened such a King the opinion of the Civilians is to me more probable That in yielding up his Kingdom to a stranger he confers nothing And whereas it is said that the fruits and profits revert to the Lord of the propriety It is to be understood after such a time as is prefixed by the Law Yet notwithstanding if a King shall really endeavour to deliver up or subject his Kingdom to another I doubt not but that in this case he may be resisted For Empire is one thing and the manner of holding that Empire another The alteration whereof the people may hinder for that is not comprehended under the notion of Empire Whereunto may that of Seneca be not unfitly applyed Although our Father be in all things to be obeyed yet not in those things wherein he ceaseth to be a Father XI Or a King that Invades the whole body of the people in an hostile way Fourthly as the same Barkley observes If a King shall endeavour with a mind truly hostile the destruction of the whole body of the Nation over which he is set to govern he loseth his Kingdom and may be resisted Which I grant For the end of all Government being for mutual conservation he that wilfully resolves to destroy can have no right to Govern Wherefore he that openly either in word or deed professeth himself an enemy to the whole Nation is in that very act presumed to abjure and renounce the Government of it When Scylla had depopulated not Rome only but almost all Italy one seriously advised him that it was fit to spare some that he might have some to govern Vt essent quibus Imperassent But this case can hardly be found in any King that is of sound mind and that governs one only Nation But in case he govern more than one it may so happen that in favour to one he may endeavour to destroy the other that so he may plant it with new Colonies Plut. vit lib. Grac. Gracchus his Arguments are very Ingenious whereby he proves that a Tribune of the people being therefore accounted sacred and Inviolable because he is consecrated by the people to defend them in case he shall endeavour to oppress them to diminish their power and to take from them their rights of suffrage doth thereby actually degrade himself in not performing that for which that honour was conferr'd on him For to admit saith Gracchus that the Tribunes of the people may in some cases imprison their Consul and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it even against those from whom he received it seeing that both the Consul and the Tribune were by the people created would be very absurd The like we find asserted by Johannes Major namely That a people cannot abdicate their power of deserting their Prince in such cases as tend to their manifest destruction Both which may be very well expounded by what hath been herein already delivered XII And against him who breaks the condition upon which he was admitted Fifthly In case a Kingdom be confiscate either by Felony committed against him whose the Fief is or by any clause or condition expresly made and agreed on at his admission to the Kingdom As in case the King shall do this or that his Subjects shall then stand absolv'd from all obligation of duty and obedience unto him †Vid. Marian. de regno Arragon In this case also a King may recede into the condition of a private person XIII And against him who havlng but one part of the Soveraign power Invades the other Sixthly If a King having but one part of the Soveraign power and the Senate or people the other if such a King shall Invade that part which is not his own he may justly be by force resisted because in that part he hath not the Soveraign power Which I believe may take place although it be said That the power of making War is in the King For this is to be understood of a Foreign War since otherwise whosoever hath any part of the Supreme power cannot be denyed a Right to defend his own even by force which when it happens even the King himself may justly by the Right of War lose even his own part of the said Empire XIV And against him who grants such a Licence in certain cases Seventhly If in the Translation of the Empire it be expresly said That upon some certain events that may happen it may be lawful to make resistance For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained yet certainly it may be conceived that some kind of natural Liberty was thereby understood to have been reserved to the people and exempted from the power of the King * Thuan. l. 131. in anno 1604. Id. l. 133. an 1605. de Hâ—ngaria For possible it is for him that alienates his own Right to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements whereof we may find
his willingness to accept of it by some outward signs which though it be usually subsequent to the tender of the giver yet may it also precede it As when a man requires that such a thing should be given him in this case it is presumed that he is willing to receive it unless it do appear that he hath altered his mind as to other things requisite as well to the transferring as to the acception of a Right in things and how both may be safely done we shall shew more fully when we treat of promises for concerning both these Nature hath prescribed the same Rules III. Empires whether alienable As other things so are Empires alienable by him in whose dominion they truly are that is as we have said before by a King whose Kingdom is Patrimonial But otherwise by the people yet not without the Kngs consent because he hath a kind of Right in it though but to the present revenue which cannot without his own act be taken from him Thus it stands with a whole Soveraign Empire IV. That the whole cannot alienate the parts that consent not to the Alienation But as to the Alienation of any one part of the whole it is further requisite that that part that is to be alienated consent thereunto For they that first entred into that society did as may be presumed contract a firm and immortal League among themselves for the defence of all those parts which are called Integrants Whence it follows that these parts are not so under their own body as the members of a natural body which cannot live without the life of the body and are therefore for the preservation of the body sometimes justly cut off But this body whereof we now speak is constituted after another manner namely by mutual consent and agreement and therefore its power over its parts depends wholly upon the will and intention of them who first instituted that society who without doubt would never have granted such a power to the whole as to abscind from it self any of its parts and to give them up into the power of another V. Nor any part over themselves but in cases of necessity Neither is it on the other side in the power of any part to recede from the whole unless it be evident that it cannot otherwise subsist For as we have said already In omnibus quae sunt humani instituti excepta videtur necessitas summa quae rem reducit ad merum jus naturae All humane constitutions give place to the Law of Nature in casâ—s of unavoidable necessity Almost all Nations saith St. Augustin are taught by the very voice of Nature to submit to the will of the Conqueror rather than to hazard an utter devastation And therefore as Herodotus notes In that Oath wherewith the Grecians bound themselves to be faithful to the Persians as to the Conquerour this Salvo was added Vide infra c. 24. §. 6. Nisi planè coacti Vnless they were manifestly forced to the contrary Thus we read that Anaxilaus was deservedly acquitted by the Spartans for delivering up the City Byzantium being distressed more by famine within than by the Sword without And Xenophon tells us that the Emperour Anastasius returned thanks to his Commanders for their timely surrender of the City Martyropolis thereby preventing the unnecessary effusion of blood since it was impossible to be defended Cum fame habitare virtus recusat Valour will not cohabit with famine saith Procopius neither can we expect that Nature should act vigorously Goth. l. 4. when she wants nourishment So Cephalas in his Epistle to the Emperor Alexius being straitly besieged in Larissa Yielding to necessity we must deliver up the Town to those who not only besiege us An. Commen lib. 6. but maninifestly starve us for what can valour do against the force of Nature VI. The causes of this different power Now the reason why in cases of absolute necessity every part of the society hath more right to defend it self than the body of that society can have over its parts is because that part that is so necessitated may use that Right which Nature gave it before that society was instituted which the whole society cannot Neither let any man say that the Right of Empire is in the whole society as in its subject and therefore may be alienated by it as things held in propriety may for the Government is indeed in the whole body as in its adequate Subject but not divisibly in many bodies as the Soul is in perfect Bodies But that necessity that enforceth us to flee back to the Original Right of Nature for defence cannot here have place For under that Right the free use of Nature is comprehended as eating and detaining what is ours which are natural but so is not the Right of Alienation which receiving its authority from humane institution is from it to receive its bounds VII That the Empire over some place may be alienated But as to the Empire over such a place being a part of the Territory that lies uninhabited and desart I cannot discern any reason at all why it may not be alienated either by a free people or by a King with his peoples consent For as every part of the people have equally freedom of Will so have they equally a Right to gainsay whatsoever any other would have but the Territory it self whether wholly or in its part considered is the peoples Common undivided and therefore wholly at their dispose but as to the soveraignty over any part of the people if as I have said it cannot be alienated by the whole body of the people much less can it be done by a King who though he have the full power yet he hath it not fully VIII No part alienable either for profit or necessity by a King alone And here I must crave leave to dissent from those Civilians who hold that no part of an Empire can be alienated by a King unless it be for publick profit or out of necessity unless they understand it in this sence that where the profit doth equally aâ—crew both to the whole Nation and to that part which is to be alienated the consent of both may easily be collected from their silence though of no long time which may much more easily be presumed if there appear likewise a necessity for it But if either part do manifestly declare against it there can be no Right to alienate unless the part be evidently enforced either to separate from the whole or suffer themselves inevitably to be destroyed IX Infeudations and Morgages of the parts of the Empire unlawful Under Alienation is deservedly comprised even Infeudations under penalty of confiscation for breach of Faith given to the Lord of the Feoff or when the Family is extinct * Sub onere commâ—ssaeâ— feloâ—ia aut deficiente familia Vide l. 1. c. 4. §. 12. For even this is a conditional Alienation wherefore we often see
Succession Another Question is this Whether a King may so abdicate his Kingdom as to deprive his Son of his Right to succeed which is resolved by the same distinction For in Kingdoms meerly hereditary he that renounceth his Kingdom cannot transfer it to his Son But in lineal descents the Fathers act cannot null his Sons Right that is born For as soon as the children begin to exist the law makes provision for them yea and for those that are to be born so because that right which by the peoples consent is entailed upon them must in due time descend upon them Neither doth that which I have already said concerning transmission contradict this For that transmission is Necessary as to the Parents and not Voluntary But yet a difference there is between those Children that are born before the Renunciation and those born after For they that are already born have by the Law a full Right to the Kingdom though they that are not permitted to enjoy that Right during the life of their Parent but to those not born there cannot as yet be any Right acquired and therefore it may be taken away by the will of the people if the Parents also to whom it belongs to transfer that Right unto them be willing to release it And to this purpose is that we have already said concerning dereliction XXVII Whether the King or the People only have a Right to judge of the Succession Another Question doth sometimes arise namely who shall be judge of the Right of Succession to a Kingdom Whethet the King then reigning or the people by themselves or by such Judges as they shall appoint If the Question be put of such a Judgement as is Authoritative neither of them have any Right to judge For Jurisdiction there cannot be but in a superiour who should have respect not barely to the person but to the matter also which is to be poised with its due circumstances But the case of Succession is not properly under the jurisdiction of the present King because he cannot of himself by any Law bind his Successor For the Succession to the Empire lies not under the jurisdiction of the Empire but remains in the state of Nature wherein there was no jurisdiction at all But yet notwithstanding if the Right of Succession be controverted the pretenders unto it will do very piously and justly if they can agree between themselves upon some indifferent persons to whose arbitrement they can be contented to refer themselves whereof we shall discourse hereafter But the people have transferred all their Jurisdiction from themselves into the King and the Royal Family during which they cannot challenge to themselves any reliques of it This I mean of a true Kingdom and not of every Principality But yet if in the discussing of this Right any question do arise concerning the primary will and intention of the people at the first institution of the Kingdom it were not amiss to take the advice of the people in present that is of all the three States I mean of the Nobles Clergy and Commons in Parliament assembled as is usual in England and Scotland as Camden testifies in his History of Queen Elizabeth 1571 1572. For the people in present may be judged to be the same they anciently were Or by Delegates purposely chosen as in the Kingdom of Arragon unless it do sufficiently appear That the people then were clearly of another will and that thereupon the Right of Empire was obtained Plut. de fratrum amore Paus lib. 4. Justin lib. 2. Thus did King Euphaes suffer the Messenians diligently to enquire which of the Royal stock of the Aepytidae had most Right to the Kingdom But the contest between Xerxes and Artabazanes was determined by their Uncle Artaphernes to whom it was amicably referr'd as to a Domestick Judge XXVIII The Son born before his Father was King to be preferred before him that was postnate But let us proceed to other cases It hath been often controverted which of the two Sons hath the best Right to the Succession He that was born before the Father gained the Kingdom or he that was born after Whereunto the most Rational Answer is That he that was first born shall first succeed if the Kingdom be indivisible which holds true in every kind of Succession Yet did Henry the First youngest Brother to Rufus assume the Crown of England whilest his elder Brother Robert was in the Holy Land upon this pretence That he was born to his Father after he was Crowned King of England whereas his Brother Robert was born whilest his Father was Duke of Normandy only yet was Henry justly branded as an Usurper of his Brothers Right by Mat. Parisiensis But in case the Kingdom be divisible without doubt the latter shall have his share as well in this as in other goods concerning which it matters not when they were got Now if he that of a divisible Estate may have his share and in that which is indivisible is preferred by the priviledge of his birth Surely even the Inheritance must follow that Son which was born before his Fathers first Investiture But even in a Lineal Succession a Kingdom is no sooner got but the Children which are antenate do immediately conceive an hopes of Succession For admit that there are none born after surely no man will say That those before born are to be excluded But in this kind of Succession an hope once conceived begets a Right Neither doth it by any post fact determine unless it be in a Cognatical Succession where it may be for a while suspended by reason of the priviledge of Sex Thus was the case decided in Persia between Cyrus and Artaxerxes in Judaea between Antipater the Son of Herod the Great and his Brethren In Hungary when Geissa began his reign and in Germany though not without Blood between Otto the first Mariana l. 24. and Henry and in Turky between Bajazet the antenate and Gemes the postnate to the Empire And though haply it may be true that the choice of the Kings of Persia did much depend upon the suffrages of the people yet were those suffrages always limited to the Royal Family Lib. 23. For thus much doth Mariana testifie of the Arsacidae who being Parthians reigned in Persia And the like doth Zonaras in Justin of those Persians that succeeded those Parthians XXIX Unless otherwise provided by some Law But that it was otherwise in Sparta we attribute to the Laws proper to them only which gave the Sons that were postnate the Preheminence for their more Heroick Education The like may also happen by some peculiar Law made upon the first Investiture If a Soveraign Lord shall give unto his Vassal and to those that shall be born of him an Empire to be held of him in Fee upon the strength of which Argument Lewis in the contest that arose between him and his Brother Galeatius for the Dutchy of Millain did
distinction to be observed where there is any probable reason for giving or otherwise alienating what is the peoples But in case the King shall by any Contract go about to alienate any part of his Kingdom or of the Royal Patrimony beyond what is permitted unto him such a Contract shall be of no force as being made of that which was not his to dispose of As much may be said of such Kingdoms as are limited and restrained if the people have exempted any either matter or kind of acts from the power of their King For to make such acts valid the consent of the people or their Representatives is necessarily required as we have already shewed when we discourst of alienations Now these distinctions being observed it is no difficult matter to judge Whether the exceptions of Kings who refuse to pay their Predecessors Debts whose Heirs they are not be just or unjust whereof we may read many examples in Bodine XIII Of the Grants of Kings which are revocable and which not Neither is that which some affirm to be admitted without a distinction namely that the benefits of Princes which are freely and liberally granted may at any time be revoked For some benefits a King may give out of what is his own and which were it not for this clause at the prayer or request of the Grant might well pass for a perfect Donative Now these cannot be revoked unless from Subjects by way of punishment or for publick good for which also satisfaction must be given out of the publick stock if possible But other benefits there are which only take away the binding power of the Law without any Contract and these are revocable For as a Law universally taken away may always be universally restored so also being particularly taken away it may be particularly restored For no Right is here acquired against the Law-maker XIV Whether the right King be bound by Contracts of an Usurper But by such Contracts as are made by Usurpers or such as without any just title invade a Kingdom neither the people nor their lawful Prince are obliged For such have no right at all to bind them Yet even these also shall be bound by those Contracts so far as they are enriched by those Contracts CHAP. XV. Of Leagues and Sponsions I. Publick Agreements what they are II. Divided into Leagues Sponsions and other Conventions III. How these differ and how far Sponsions oblige IV. Menippus his division of Leagues rejected V. Leagues divided into such as oblige unto things agreeable to the Law of Nature and from whence this ariseth VI. And unto things thereunto added which are either equal VII Or such as are unequal which again are divided VIII Leagues made between those of a different Religion by the Law of Nature are lawful IX Nor are they universally forbidden by the Hebrew Law X. Nor by the Christian Law XI Cautions concerning such Leagues XII All Christians are obliged to enter into a League against such as are enemies to Christianity XIII If diverse of our Confederates are at War which we ought to assist explained by a distinction XIV Whether a League may be understood to be renewed tacitely XV. Whether the breach by one Party do free the other from being obliged XVI How far the Sponsors stand obliged in case what they undertake for be refused XVII Whether a Sponsion being known but not refused do oblige by silence This explained by a distinction I. Publick Conventions what they are ALL agreements are by Vlpian divided into such as are publick or private The publick he expounds not as some think by a Definition but by Examples The First whereof is that whereupon a Peace is concluded The Second is that whereon the Generals on both sides do agree among themselves about some things touching the War By Publick Agreements he understands those which cannot be made but by such as have the Right of Empire either Greater or Lesser whereby it is distinguished not only from the Contracts of private persons but from the Contracts which Kings make in their private affairs although even from these private Contracts a War is sometimes occasioned but oftner from the publick Wherefore since we have sufficiently treated of Conventions in general we will add thereunto some things concerning this kind which of all others is the most excellent II. How divided Now these publick Conventions which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we may divide into Leagues Sponsions and other Pactions III. The difference between them The difference between Leagues and Sponsions we may learn out of the ninth Book of Livy where he tells us That Leagues are such agreements as are made by the Command of the Supreme power and whereby the whole Nation is made liable to the wrath of God if they infringe it And this among the Romans was wont to be performed by Heraulds in the presence of the King of the Heraulds But a Sponsion is where the Generals having no order from the Supreme Power to conclude any thing about such a matter do yet promise and undertake something concerning it In Salust we read thus The Senate as it is very fit have decreed That without their and the peoples Command no League shall be made Lib. 24. Hieronymus King of Syracuse as Livy relates contracted friendship with Hannibal but he sent afterwards to Carthage to make of that Alliance a perfect League Wherefore that of Seneca the Father where he saith Cont. l. 4. c. 29. In that the Emperour struck up a League the Roman people may be said to strike it up and to be concluded by it must be referred to those ancient Consuls or Generals who had received special Order from the Senate and People of Rome so to do But in Monarchical Estates See Book 3. ch 20. §. 2. the sole power of making Leagues is in the King According to that of Euripides Adrastum hunc opus Jurare Namque is jus habet regni potens Vt civitatem foedere obstringat suo This Adrastus ought to swear I say Who being their Soveraign the whole City may Oblige this League for ever to obey Now as Inferiour Magistrates cannot oblige the people so neither can the minor part of the people oblige the whole But let us here enquire how far forth they are bound who not having the peoples Right shall yet undertake that which the people only have a Right to do Some may think that if the Sponsors use their utmost endeavour to effect that which they have undertaken they have preserved their Faith according to what we have already said Vid. sup ch 11. §. 22. of Promises made for the fact of a third person But the nature of the business concerning which this Contract is made requires a stricter obligation For no man in Contracts will either give or promise any thing of his own but expects that something shall be performed unto him in lieu thereof Whence it is that by
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
children Answered It is not for you to know what I intend to do with them that you your selves may perish the more uncomfortably But withal we must note That God doth not use this severity but for such sins as are committed properly in the reproach of himself as for the sins of Idolatry Sacriledge Perjury and the like Neither did the Grecians themselves think otherwise For all those sins which were thus visited on posterity which they called stupendious were of this sort 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereof Plutarch discourseth excellently in his Book concerning the late revenge of God And in Aelian we find a Delphick Oracle to this very purpose denouned against the sin of Sacriledge At scelerum fontes divinum persequitur jus Necpote vitari non si genus ab Jove ducant Sed capiti ipsorum qui nascunter ab ipsis Imminet inque domo cladem subit altera clades Vengeance the guilty doth from Heaven attend Which none can ' scape though they from Jove descend Upon themselves and on their Children all Plague after Plague throughout the house shall fall The like we have in Libanius who speaking of some Sacrilegious persons saith Whereof some have already been punished others not yet but none shall escape and not only they but their Childrens Children after them This is also confirmed by Strabo and Gellius in the story of the Gold stoln out of Temple at Tholouse Concerning Perjury we have already given the like testimonies above and concerning Idolatry we have a most pregnant example in Jeroboam where it is also to be observed That although God doth thus threaten to visit the sins of Parents upon their Children yet he doth not always do it especially if any spark of vertue appear in them or if the Child do publickly declare his detestation of his Fathers wickedness as Andron Pelaeologus did as is evident Ezech. 18. and by divers examples alledged by Plutarch in the place before recited And in the New Testament where there is a clearer discovery made of the punishments that attend us after this life than in any of the Prophets yet is there no commination that extends beyond the person sinning whereunto that of Ezekiel hath some respect though but obscurely as the manner of the Prophets at that time was Now though God do sometimes visit the sins of Parents on their Children yet is this no warrant for us to do the same neither can there be the same reason because of that absolute Power and Dominion that he hath over our lives to take them away at his pleasure without any respect had unto our sins whereas men can have no such power but what our own crimes give them and therefore as the sin so the punishment should not be extended beyond our persons And therefore the very same Law of God doth expresly in another place forbid That either the Father should be put to death for the Child or the Child for the Father Deut. 24.16 which some of the pious Kings of Israel did religiously observe even in the case of Treason as Amasias did which Law is highly commended both by Josephus and Philo As Isocrates doth the like Law amongst the Aegyptians and Dionysius Halicarnassensis the same among the Romans Neither the sin nor punishment of the Father leaves any guilt at all upon the Children saith Calistratus out of Plato For it is just that every Fox should pay his own skin unto the fleaer and that every man should carve out his own fortunes and no man answer for his sin before God by an Attorney Would any City saith Cicero endure such a Law that should condemn the Son or Nephew if the Father only or the Grandfather did offend Hence it is that the Roman Grecian and Aegyptian Laws do forbid the putting to death of Women with Child as an act of injustice and cruelty XV. If not children much less kinsmen And if so then certainly the Laws of the * Dan. 7.22 Justin l. 10. Persians and Macedonians adjudging to death all the kindred and relations of Traitors that so they might the more dolorously perish as Curtius speaks are most cruel and unjust which Ammianus Marcellinus records as the severest of all Laws Philo also observes that it was usual with Tyrants to put to death together with the persons so condemned the five Families that were of nearest kin to them which execrable custom is not so much as heard of among Christians being a cruelty exceeding any humane Judgment XVI Yet may children be denyed somethings which otherwise they might have had But yet in case the Children of such Traitors may have or expect to enjoy any thing whereof the peculiar Right is not in them but in the King or People it may be taken from them by a certain Right of Dominion as it adds to the punishment of the offender Hence it was that as Plutarch observes The posterity of Traitors were held uncapable of honours as the Children of such as were proscribed by Sylla were among the Romans So by the Law of Arcadius it was provided as a thing tolerable against the Children of Traitors That they should not be admitted into any honour or office in the Commonwealth XVII Nor are Subjects properly punished for their Princes crimes Now what hath been here said of Children may as well be said of such people as are truly Subjects if the Question be put whether they may be justly punished for the sins of their Kings or of their Governours I mean not here in case the people shall give their consent thereunto or act any thing in relation to the fault of their Prince which is in it self punishable But we treat of that contract which ariseth from the nature of that body whereof the King is the Head and the Subjects the Members For as to those that give their consent and assistance to the sin of their Prince it is true what Philo observes of Pharaoh in Abrahams time That the whole Family felt the smart of Pharaohs sin because no man had indignation against so unjust a fact but all of them by commending it were as guilty almost as himself So Josephus discoursing of the judgment of Jeroboam The people saith â—e did likewise partake of the punishment of the Kings sin for they also were to be expelled that good land and to be scattered into foreign Nations because they were his companions in the act of his sin But in case the people yield not their consent yet may they partake of the punishment by reason as I said of the connection that there is between them and their Prince David numbred the people and his Subjects are consumed by the Pestilence David thought this to be hard dealing because he thought the people innocent But God saith the Text was angry with the people and therefore moved him against them to say go number the people 2 Sam. 24.1 And then takes occasion by this sin of Davids to punish the sins
so But on the contrary words of their own nature and set aside from that sense which men have agreed to give them signifie nothing unless it be such an inarticulate and confused noise as pain and grief causeth us to make which is more understood by the thing we suffer than by the noise we utter And if it be objected that it is peculiar to the Nature of Man above all other Creatures That he is able to express the manifold conceptions of his mind unto others to which end words and voices were invented we do not deny it Yet this also may be added That such indications are not made by words only but by becks nods and other signs made by the eyes head or hand as among such as are born dumb Thus Pliny testifies of the Aethiopians Pliny lib. 6. cap. 30. Quibusdam pro sermone nutus motusque membrorum est That some of them instead of words express their minds by various motions of their other members Whether those becks or other motions have naturally something common with the things signified or whether they have a certain signification by agreement only Consonant whereunto are those Aegyptian Hieroglyphicks which as Paulus the Lawyer saith signifie not words but things for saith he It is not the figures of the letters but the speech exprest by those letters that do oblige us so far forth as it is agreed on That what is by any writing declared shall be as binding as what is exprest by word of mouth Where you must note that the word Placuit is very emphatical as shewing that that which gives such force and validity to words is consent and agreement And here again we must have recourse unto that distinction which we made use of to take away all ambiguity concerning this word the Law of Nations For we then said that the Law of Nations signified either that which was admitted of by every Nation without mutual obligation or that which all Nations did mutually oblige themselves to observe Now voices nods and such like indications of the mind are admitted to signifie things by mutual obligation which Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to agreement whereof some are so universally agreed on to signifie such and such things that all Nations are obliged so to understand them which cannot be so generally understood of things Whence it follows that it is lawfull for me to do or use other acts or things though I do foresee that another man will conceive a false opinion of them I speak of that which is intrinsick and not of that which is accidental And therefore we must give an instance first of such a case wherein no detriment at all ensues such was that of Michal when she deceived her Father with an Image laid in stead of David 1 Sam. 19.16 Luke 24.28 Thus our blessed Saviour seemed to his two Disciples as if he would have travelled beyond Emaus and perhaps he intended so to do unless they did importune him to abide with them as God himself is said to will many things suppositively which notwithstanding come not to pass the condition being not fulfilled Mark 6.28 And Christ himself made as though he would have passed by his Apostles as they were sailing on the Sea that is unless they should earnestly desire him to come up into their Ship Another example may be given in St Paul who doubtless when he circumcised Timothy Acts 16.3 knew very well what construction the Jews would make of it namely That the Law of the Circumcision though abolished by Christ did still even in the judgment of the Apostles oblige the Children of Israel whereas St Paul dispensing with this errour proposeth to himself another end namely That through that mistake he and Timothy might gain the advantage of a more free and friendly conversation with them For the Ceremonial Law being abolished neither did circumcision by its first institution any longer signifie a necessity of keeping that Law neither was the evil of that errour which from thence arose and for a while continued though afterwards to be exploded so great as was that good which Paul and Timothy then aimed at which was a more facile insinuation of the Doctrine of the Gospel The Greek Fathers do usually express this kind of simulation by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying a dispensation So Chrysostome In 1 Cor. 4.6 This was no deceit nor hypocrisie but a compliance or dispensation And again upon that of St Paul To the Jews I became a Jew c. he saith That St. Paul to the end he might convert those that were really superstitious at first appeared unto them to be so too making an outward shew as though he had been otherwise than what he was he did such things as they did but not with the same purpose and intention as they did And this is his meaning when he saith I became all things to all men that I might save some 1 Sam. 21.12 Hither also we may refer that personated madness of King David in the Court of Achish There is is a notable Saying extant of Clemens Alexandrinus who describing the qualities of a good man saith That some things he will do for his Neighbours sake which otherwise he would not do Such was that act of the Romans who when their City was besieged threw great quantities of Bread from the Capitol into their Enemies Camp when in truth they had but little to spare to the end that their enemies despairing to take the City by Famine might give over the Siege Another example of such a simulation wherein the hurt or detriment that follows setting aside the fraud is lawful we have in that feigned flight of Joshua before the Inhabitants of Aye Josh 8. Josh 8. which is very frequently practised by other Generals For such a seeming flight is questionless lawful as signifying nothing by consent or agreement but according to the construction that the enemy will make of it wherein if they are deceived they deceive themselves And to this end also it is lawful for us to make use of our Enemies Armes Colours Garments Sails and the like whereof we shall read in all Histories For all these things every man hath liberty to make use of though contrary to usual custom at his own pleasure because that very custome of using or wearing such or such a colour or fashion is in every mans particular choice and is not appropriated to this or that Nation by common consent and therefore obligeth none IX Whether to ly be lawful to an Enemy There is yet a more arduous Controversie concerning those notes or signs which men frequently use in their commerce one with another of which sort the most proper and usual fraud is lying Much may be found in Holy Writ against it as Prov. 13.5 A good man hateth lying So Prov. 30.8 Remove from me all falshood and lies So the Psalmist Thou shalt
no other Herald to proclaim it than nature it self And herein is that of Dion Chrysostome verified That many wars are made which were never denounced Neither is there any thing else that Livy blames in Menippus King Antiochus's General but that he had slain certain Romans before any war was denounced or any hostile act had proceeded so far as either to the drawing of a weapon or the effusion of bloud in any place intimating thereby That iâ—â—ither of these cases that fact of Menippus had been justifiable Neither doth the Law of â—ature necessarily require So may the right Owner apprehend his own without declaring his intention But to recover a Debt or one thing for another a predemand is necessary That the right Owner being to apprehend what is his own should first denounce war or declare his intention before he do it But so often as one thing is to be taken in lieu of another or the Goods of a Debtor attached for a Debt there a predemand is necessary much more is it necessary when the Goods of Subjects are to be seized for the Debt of their Prince that thereby it may appear That we had no other means or way left but by war to recover either our own or what is due unto us For the right that we have in the things so seized is no primary but a surrogated right as we have elsewhere declared The like may be said of him who hath the supreme Authority who cannot justly be invaded for either the debts or the faults of his Subjects until satisfaction hath been demanded which if denied renders the Prince also culpable either by participating with them in the wrong done or at least by omitting what he ought to do 2. What in these cases Nature requires not yet may be done honestly and laudably Vid. lib. 2. c. 23. sect 7. according to those Rules which we have elsewhere given Nay farther even where the Law of Nature doth not require any such demand to be made yet may it be done both honestly and honourably to the end that men may be more careful to abstain from giving offence and that those already given may be expiated by confession and satisfaction according to those Rules which I have already prescribed for the prevention of those mischiefs which do usually accompany War whereunto even that also appertains Extrema primo nemo tentavit loco No man at first unto extremes will flye When all Israel were ready to fall on the Gibeonites to revenge the outrage done to the Levites Wife the Elders restrained them urging Deut. 20.11 Jos Ant. l. 5. 2. That it was not fit that they who were forbidden by the Law rashâ—y to make war upon Strangers though justly provoked till by their Ambassadours they had sought all means to induce them to do them justice should unadvisedly fall upon their Brethren until they had first heard their grievances and denied satisfaction And as to that Command which God gave unto the Israelites Deut. 20.2 namely That before they fought against any City they should offer them peace It was peculiarly given to that Nation and therefore not at all to be confounded with the Law of Nations Nor was that peace which was so offered an absolute peace but on this Condition That they would submit and pay tribute When Cyrus had march'd with his Army into Armenia Xenoph. Hist l. 2. he forbore all hostile acts till he had sent Ambassadours to the King to require of him the Tribute and Succours by the League due esteeming it as Xenophon speaks more friendly thus to proceed than to act farther until he had declared the ground of the War Nevertheless by the Law of Nations as to those peculiar effects of a just War a publick denunciation is in all cases requisite if not on both sides yet on one VII War denounced sometimes conditionally and sometimes absolutely This denunciation of War is sometimes conditional and sometimes absolute Conditional when restitution or satisfaction is demanded at the same time when the War is denounced Now the Fecial Law whereby the Heralds are guided do under the Notion of things demanded comprehend not only a vindication of what is due by the right of dominion but the persecution also of whatsoever is due either upon any civil account or by reason of any crime committed as Servius rightly expounds it Hence it is that in all such Conditional Denunciations we read either of some things to be restored of some damages to be repaired or some Offenders to be delivered up unless they from whom such Offenders are demanded shall chuse rather to punish them themselves as we have elsewhere said And that this solemn Demand of things was called Clarigationem or a proclaiming of War Pliny testifies in these words Et Legati cùm ad Hostes clarigatum mitterentur id est Lib. 22.2 res raptas clare repetitum unus utique Verbenarius vocabatur And Ambassadours when sent to their enemies to demand with a loud voice restitution of things taken away by force one of them was called Verbenarius an Herald because he was always crowned with Vervin And in another place speaking of Vervin he saith That it is that Herb which Ambassadours and Heralds do usually carry with them to their enemies as we have elsewhere shewed Lib. 25. c. 9. One example of this conditional denouncing of War we have in Livy in these words Which injuries Lib. 8. Ann. l. 1. unless redressed by those that occasioneâ— them they are resolved with all their power to revenge Another we have in Tacitus Ni supplicium in malos praesumant usurum promiscua Caede Vnless punishment be inflicted on the Malefactors they will seek their revenge by War And of this kind of proclaiming War we have an ancient Precedent in Euripides where Theseus gives this Charge to his Ambassadours Vicina Theseus qui tenet Regni sola Humare poscit mortuos quod si datur Sit amica faciet Gens Erechtidûm tibi Haec si probantur tam refer retro pedem Sin nemo paret verba sint haec altera Jam mox ut Arma pubis expectent meae All which Papinius rehearsing the same Story abreviates in this Verse Graves for the slain or War ' gainst Thebes proclaim A pure or absolute denunciation is that which is especially called an Indiction or Proclamation The Greeks calls this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to declare Reprizes lawful which is either when the other Party hath already begun the War which is that which in Isidore is called a War to repel the force of an invading Enemy or when he himself hath committed that which deserves to be punished Sometimes after a denunciation that is conditional there follows another that is pure and absolute though not necessarily yet redundantly Hence ariseth that usual Form Testor hunc Populum injustum esse neque jus reddere I declare this Nation to be unjust neither will they do
expose themselves to labour and danger for nothing De benefic 4. c. 15. for this reason saith Seneca we usually reward Physicians though they cure us not Quod à rebus suis avocati nobis vacant Because we call them from their own affairs to serve ours And the same reason likewise serves for Lawyers as Quintilian notes Because they tear out their time and employ their whole study to defend other mens Estates thereby neglecting all other means to improve their own The very same is given by Tacitus Ann. l. 9. Omittit res familiares ut quis se alienis negotiis intendat That he casts off all care of his own domestick affairs that he may the better intend the good of others It is therefore very credible unless there shall appear some other cause as namely mere kindness or some former Contract that it was the bare hope of gain by the spoil of the enemy which they expected as a compensation for their loss of time and of their labour Vid. Plut. Marcell that made them to expose themselves to so great dangers XXIV And often to Subjects But as to Subjects the reason is not so evident because Subjects and Citizens owe their help and assistance to the Country or City whereof they are But yet seeing that all Citizens either cannot or will not expose themselves to those hazards and hardships that attend War therefore it is but reasonable that retribution be made by the whole Body of the people unto such as shall sustain the toil or the charges of it but much more the damage that shall be thereby occasioned in full recompence whereof the hopes of the whole prey or of an uncertain part thereof is by the people easily and that not without reason granted unto them So thought the Poet Propert. Praeda sit haec illis quorum meruere labores Theirs be the prey whose pains deserv'd it have As to our Associates an example we have in the League that was made between the Romans and the Latines wherein it was agreed Liv. l. 4. c. 24. That in all the Wars wherein the Romans should engage them the spoil taken from the Enemy should be equally divided between them So in the Wars wherein the Aetolians engaged the Romans it was agreed Dionys l. 6. Polyb. l. 6. That the Cities and Territories should be the Aetolians but the Prisoners and all Moveables should be granted to the Romans To the ancient Latines the Romans gave a third part of the spoil as Pliny testifies And proportionable to the succours sent the free Towns of the Switzers received their share of the spoil as Simler relates Paruta l. 8. In a War against the Turks the Pope the Emperor and the Venetians divided the spoil according to their respective charges that they had been at in making the War And Pomponius gratified Deiotarus King of Galatia with the lesser Armenia because he had been his Companion in the War against Mithridates St Ambrose upon the Story of Abraham Lib. 1. de Abra demonstrates the equity of this custom Abraham saith he perhaps thought it but just that they that came up to his assistance in that War should likewise partake with him of the spoils as being the reward of their labour But as to Subjects an example we have in the Nations of the Jews Numb 31.27 where God commands Moses to divide the spoil of the Midianites into two parts that is between them that undertook the War and went out to Battel and between all the Congregation And in ver 47. he subdivides that part which belonged to the Congregation and gave the fiftieth part thereof to the Levites that had the charge of the Tabernacle Thus David divided the spoil taken from the Amalekites equally between them that went down to Battel and them that guarded the Stuff Sometimes the Jews would divide the spoil 1 Sam. 30.24 and grant half to the Souldiers and as to the other part they admitted the maimed the Widows and the Orphans to have share with them So we read of Alexander's Souldiers 2 Mac. 28.30 that they always challenged the spoil taken from private men unto themselves only the most precious things they reserved and presented to the King Wherefore we find them accused for robbing the publick Treasury who had conspired to assume all the prey taken at Arbela to themselves so as to bring nothing to the Treasury But yet those publick things that belonged to the enemy or to the King against whom they fought were exempted from this Licence Thus it was with the Macedonians when they brake into Darius's Camp they carried away an infinite Mass of Treasure leaving no place unrifled but the Kings Pavilion only it being a custom received amongst them as Curtius notes as well as amongst most Nations to receive the Conquerour in the Pavilion of the conquered The custom of the Hebrews was not much unlike this of the Macedonians 2 Sam. 12.30 For they always set the Crown of the vanquished King upon the head of the Conqueror assigning all the Furniture of the Kings Palace or Pavilion unto him as his share of the spoil And amongst the Acts of Charles the Great we find that having conquered the Hungarians Whatsoever was taken from private men he gave to the Souldiers but what was the vanquisht Kings was brought into the Emperour's Treasury The Grecians distinguished them by their several names calling the publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the private 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as also they did those taken in the Battel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but those taken after Battel being publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which distinction was afterwards approved of by other Nations But it is plain by what hath been already said That the Romans during their ancient Commonwealth did not allow to their Souldiers so much yet they began to be more indulgent to them in their Civil Wars Thus you may read Aequilanum given to the Souldiers for pillage by Sulla And Caesar after the Battle of Pharsalia gave Pompey's Camp to be pillaged by the Souldiers with this Complement superest pro sanguine merces Quam monstrare meum est nec enim donare vocabo Quod sibi quisque dabit For loss of bloud a recompence I 'll make Not what I 'll give but what each man shall take And in another Civil War the Flavians being led against Cremona App. Civil 1. made all the haste they could the Night approaching to storm the City lest the pillage thereof should fall unto their Commanders and Legates having it seems been sufficiently instructed by Tacitus Tacit. Hist 3. Expugnatae Vrbis praedam ad militem deditae ad Ducem pertinere That the Plunder of a Town if stormed belonged to the Souldiers but if surrendred unto the General Ne manente periculo omissis hostibus praeda manus impediret quòd plurimas saepe Victorias corrupit Sub Corona But
of them do deserve it yet in consideration of humane frailty and of the instability of fortune or some such probable reasons he either altogether omits or at least contents himself with such a punishment as is not capital It is an excellent observation that Diodorus makes That whosoever succeeds prosperously in War whether it were the expugnation of Cities or victory in Battel Saepe fortunae magis quam virtuti debentur are for the most part rather the gift of fortune than the necessary effect of true valour But to shew mercy unto such as they have conquered is the work of Providence only Thus Alexander in Curtius Though he was highly incensed against the Authors of the War yet he thought it prudent to forgive them all VIII The innocent not to suffer for the nocent Concerning such as may occasionally or accidentally but not intentionally be killed mine opinion is as I have already said that if not for justice sake yet for pity we ought not to attempt any such design wherein the safety of so many innocents may be concerned unless it be for some very great cause or for the necessary preservation of a multitude Lib. 5. Of the same mind was Polybius It is a good mans duty not to prosecute a mortal War though against such as are not just any longer than till they have given satisfaction for the wrong done and reformed what is amiss but not to involve the innocent with the nocent in the same punishment but rather to spare the nocents for the innocents sake IX Children and Women to be spared These things being granted it will be no hard matter to determine those things that are more special for as Seneca in those Books wherein he seems to be angry with himself observes * De Ira l. 3. c. 24. Puerum aetas excusat Foeminam sexus Children by their non-age and Women by their sex are to be excused God himself in the Wars of the Hebrews even after the Peace was offered and refused took special care for the preservation of Women and Infants Deut. 20.14 some few Nations only being by a particular Law excepted against whom the War that was made was not in the behalf of man but of God and therefore it was called the War of the Lord. Num. 31.40 And when he commanded the Midianitish Women to be slain for crimes properly their own he excepts those who were pure Virgins yea and when he threatned imminent destruction to the Ninivites for their crying sins he suffered himself to be moved to retract that sentence by the compassion he took on so many thousands of Infants Jon. 4.2 De Ira l. 2 c. 9. who knew not good from evil Very like whereunto is that of Seneca Num quis irascitur pueris quorum aetas nondum novit rerum discrimina Will any man be angry with an Infant whose age is not yet capable of understanding the difference of things So also is that of Lucan Crimine quo parvi caedem potuere mereri For what crimes may poor Infants slaughtered be If God then who without any cause at all may without violation of his justice destroy any of what Sex or Age soever as being Lord and giver of life do thus not only spare Women and Children himself but command us also so to do How doth it befit men to whom God hath given no such Right over the lives of others but what is necessary for the conservation of humane safety and society to destroy in our rage so many innocent persons who can neither resist nor deserve our anger Let us therefore in the first place observe what the judgment of those people and of those times was concerning Infants wherein Religion and Piety were in greatest esteem Plut. vita Camilli We saith Camillus in Livy come not armed against Women and Children for though we destroy their City yet we spare them but our Arms we use against such only as are armed And Plutarch handling the same Subject tells us That good men observe some Laws even in War Where we must note that he saith among good men that so we may distinguish between this moderation and that licence which is supported only by custome and impunity Lib. 24. And Livy speaking elsewhere of Children saith A qua aetate etiam hostes irati abstinerent Whom in respect of their age an Enemy though enraged would spare And in another place describing the more than humane cruelty committed in War he saith Vsque ad infantem caedem ira crudelis pervenit Their cruelty was such that they spared neither infants nor sucklings Lib. 8. c. 16. Pliny in his natural History discoursing of the Lyon saith That when he roameth about he preys upon Men rather than Women but never upon Infants unless extremely opprest with hunger Horace passionately complains of the brutish cruelty of Achilles who was so merciless that he spared not Infants no not in the Womb. Nescios fari pueros Achivûm Vreret flammis etiam latentes Matris in alvo The Trojan Babes but lately born And those that from the Womb were torn In fire be burnt Philo also in his Special Laws tells us That there may be a thousand specious pretences for men to quarrel with men but for men to quarrel with infants and sucklings Ne calumina quidam quod dicat habet Even malice it self can have no pretence they are so very innocent Josephus likewise speaking of Manaemus saith That he that in War destroys leaves nothing undone that cruelty can do And â—e records it of Judas the Maccabite that upon the taking of Bosra and Emphrone He destroyed all the Males amongst them and whomsoever he found in them able to fight And in another place he calls that punishment which Alexander surnamed Thracidas inflicted upon the Jewish Women and Children A revenge more than humane Agathias also concerning this Subject writes thus Forasmuch as piety forbids us to exercise our rage upon infants newly born who must needs be ignorant of their Fathers crimes therefore shall this sin be surely and severely visited upon you Nicetas also or whosoever else continued that story unto the times of King Henry writing of the Scythians who took Athira saith Neither were their Babes as yet sucking at their Mothers breasts exempted from their outrage but were either mowed down by the sword like grass or suffered to pine and wither like blossomes for want of nourishment A most barbarous act of men void of humanity and having no sense of the wrong done unto nature herself nor of the breach they made of the Laws both of God and Man by extending their cruelty beyond what was necessary in subduing their Enemies Whereunto we may add those Pious Mandates given by Queen Elizabeth recorded by Mr. Cambden in the Year 1596. Camden 1596. who when she sent out her Fleet against the Spaniard gave charge that if they took any Towns they should spare the Female
necesse Non putat in victos saevum distringere ferrum Quique suos Cives quod signa adversa tulerunt Non credit fecisse nefas His be the Day who can contented be To conquer but not kill his Enemy That can believe his Neighbour honest though He march against him as an Armed Foe So that we understand the word Cives not for Neighbours inhabiting the same Town or Country but Citizens of the same Universe Much less can the griefs we conceive for the like loss we have sustained in War make the unnecessary shedding of bloud to be just and lawful as we may read of Achilles Aeneas and Alexander who were wont to celebrate the Funeral of their friends whom they had lost in the War thinking thereby to make an atonement for them with the bloud of their Prisoners and such as had yielded themselves to the mercy of the Conquerour which Homer deservedly condemns as an unjust act and which after Ages adjudged as cruelty as Servius notes upon Virgil. Aen. l. 10. XVII A multitude offending may be justly pardoned Yea and where their crimes are such as to deserve death yet is it the property of mercy to abate somewhat of the extremity of our Right by reason of the multitude of Offenders an example whereof we have even in God himself who commanded the Hebrews to tender Peace to the Canaanites and other bordering Nations though exceedingly wicked that so paying an Annual Tribute to the Conquerour they might enjoy Peace Pertinent to this purpose is that of Seneca When some particular Souldiers in an Army mutiny the severity of a General is necessary but if the whole Army threaten a revolt then is a General Pardon seasonable And again Quid tollit iram sapientis Turba peccantium De ira l. 2. c. 10. What is it that sooner appeaseth the wrath of a Wise-man than the multitude of Offenders Quicquid multis peccatur inultum est When the people generally offend there revenge is not so proper as pardon For as Livia in Xiphilinus observes out of Dion He that will punish all Offenders according to the utmost rigour of the Law will be enforced to destroy the greatest part of Mankind That of St Augustine is very seasonable advice in this Case He that would reform the errours of a multitude must do it magis monendo quam minando more by perswasion than by threatnings For severity is then seasonable when the number of Delinquents are but few But when they are numerous then that of Lucan holds true Tot simul infesto juvenes occumbere Letho Saepè Fames Pelagique furor subitaeque ruinae Aut Coeli Terraeque Lues aut Bellica clades Nunquam poena fuit Sadly at once so many Youths to slay Sometimes a Famine or a Sea-breach may A sudden Fall of Buildings or a Plague From Heaven and Earth or Wars unbridled rage But in cold bloud to shew such ire and teen By way of punishment was never seen And therefore to avoid the effusion of much bloud was the invention of Lots or casting of Dice as Cicero testifies whereof Salust gives this reason where speaking of such bloudy and inhumane punishments he saith Quibus vastatur Civitas magis quà m corrigitur Orat. pro Cluent Whereby a City is rather wasted and depopulated than reformed XVIII Hostages to be spared unless in themselves criminous By what hath been already said it may easily be gathered what the Law of Nature doth determine concerning Hostages In Ancient times when it was generally believed that every man had as much right over his own life as he had in any other thing wherein he claimed a propriety and that this right was either by explicite or implicite consent transferred into that Commonwealth or City wherein he lived it was not to be wondred at if as we may read those hostages though in themselves innocent were sometimes put to death for the offences of those Cities whereunto they belonged whether they were delivered by their own peculiar consent or by the publick wherein theirs also was included But since a purer light hath discovered unto us that the soveraign power over mens lives is reserved in God alone it follows that no man can by his own consent only give unto another this power either over his own life or over the life of his fellow Citizen Wherefore that noble Captain Narses as Agathias relates did abominate it as an act of cruelty to put to death such hostages as were no ways guilty of those crimes that were committed against him So also have others done in like cases even by the example of Scipio perhaps who was wont to say That he scorned to take revenge on the innocent hostages but he would severely punish the Delinquents themselves Nec ab inermi sed ab armato hoste poenas expetiturum Disdaining it seems that revenge that was taken upon an unarmed foe The very same answer do we read of given upon the like occasion by the Emperour Julian as Eunapius testifies That which our modern Lawyers and those no mean ones hold forth namely That such conventions and agreements are valid in case they are confirmed by ordinary and general practice I also condescend unto in case they will understand by right that which is not punishable for so in this argument it is usually taken but in case they imagine that they that shall take away the life of any by vertue of such a pact or agreement only do not sin I fear that they are both deceived themselves and by their perilous examples deceive others But plainly if he that comes as an hostage be at that time or at any time before hath been a notorious offender or hath afterwards in any matters of moment satisfied his faith given in any of these cases his punishment may be without injury But the flight of Clelia over Tiber when she made her escape to King Ethruseus was not only safe but to use Livys own words an honourable attempt because she came as an hostage not by any voluntary act or consent of her own but by the command of the City she was sent from XIX All needless and unprofitable combatings are to be avoided This one thing is yet to be added that all Duels and Tryals by Combitants seeing that they are of no use either to the decision of right or the ending of a War but merely for ostentation of strength are not only repugnant to our Christian profession but to the Laws of humane society And therefore all Commanders in all Armies should carefully provide against such unprofitable effusion of Blood as being lyable to render an account theâ—â—of to those whose Vicegerents they are because as Salust observes it is the honour of a General Incruento exercitu victoriam deportare To conquer with the least effusion of blood that may be Tacitus writing of the Catti a Nation at that time eminent for their Valour and good Conduct saith Rari excursus
which Cornelius Nepos made was assented unto by many of the Roman Senators as Gellius testifies namely That those two of the ten Captives who being bound by Oath to make their returns refused should by a strong Guard be conducted and delivered up to Hannibal especially considering that the same Senate had not long before compelled those to return whom King Pyrrhus had dismist upon the like Conditions XI What interpretation we should give to such a Contract Concerning the interpretation of some words in such an Agreement we are to be guided by those Rules which we have often recited that is to say We ought not to recede from the proper signification of the words unless it be to avoid some absurdity that would from thence follow or that we be induced thereunto by some other very strong conjectures and where the words are ambiguous that we incline to that sense that makes most against him who gives the Law XII How these words Life Garments the coming of Aids are to be understood As he that covenants for his life only hath no Right to his liberty under the name Apparel we are not to comprehend Armes Aids are then said to come when they are in sight though they do nothing for their appearance hath some kind of efficacy XIII Who may be said to return to the Enemy But he cannot be said to return to the Enemy who returning privately presently departs For our promise to return is not fulfilled until we have put our selves under the same power of the Enemy as we were when we promised to return The contrary interpretation Cicero accounts to be merely delusive and foolishly crafty introducing fraud and sometimes perjury And Gellius calls it a fraudulent Cheat always branded by the Censors with reproach and the persons that made use thereof rendred intestable XIV Succors when said to come In Agreements made Not to surrender in case just succours should come within such a time to their relief such succours are to be understood as are sufficient to repel the Enemy and secure us from farther danger four Examples whereof are recorded by Procopius Goth. l. 3. XV. That which relates to the manner of the execution is no Condition This also deserves to be observed That if any thing shall be agreed on concerning the manner of the execution that shall be annexed unto the Agreement as a Condition As for example In Case a Safe-Conduct be granted to such a place and that place before we can arrive thither happen to be in the possession of the Enemy the Agreement is not fulfilled until we come where we may be in safety XVI Of Hostages to perform such Covenants As to Hostages we are to be guided as abovesaid sometimes they are but Sureties for the acts of their Principal but yet it may be so agreed that the Obligation should be disjunctively understood that is to say That either such a thing shall be done or the Hostages may be detained But if the meaning be doubtful we must incline unto that which is most natural which is That they shal be held as Sureties only until such things shall be performed CHAP. XXIV Of Faith tacitely given I. How Faith may be given by silence II. An example in one desiring to be received into protection by any Prince or People III. In another that either demands or admits of a parly or treaty IV. That it is lawful for either party during a treaty to promote his own interest so that he hurt not him with whom he treateth V. Of dumb signs which by custome become significant VI. Of a silent approbation of something demanded VII A punishment when it may be presumed to be remitted by silence I. Faith given by silence THAT some things are by silence agreed on was not ill observed by Javolenus for this is usual in most agreements whether they be publick private or mixt the reason whereof is because it is our consent only however signified and accepted that hath the power to transfer our Right But this consent of ours may be otherwise exprest than by voices or letters as we have already shewed for some signs are naturally included in the act it self II. As in him that desires to be admitted unto protection As for example He that coming from an Enemy or as a Stranger commits himself to the Faith of another King or People doth without doubt tacitely oblige himself not to act any thing against that State under which he desireth protection we cannot then agree with them who justifie that act of Zopyrus who not being able to conquer Babylon by force cut off his own Nose Ears and Lips and so mangled fled into the City and perswaded the Citizens that Darius his Master had done it in revenge for speaking somewhat in their behalf and having thereby got into some place of eminent trust betrayed the City unto Darius For Zopyrus his fidelity unto his Prince could not justifie his perfidious dealings with them to whom he fled and by whom he was received into protection The like may be said of Sextus the Son of Tarquin who betook himself for safety to the Gabii Virgils censure upon the like fact of Sinon was this Now Graeci'an Treacheries view and from this one Learn to avoid the rest III. And in him that craves a Parly So he that demands or admits of a Parly gives his Faith tacitely that during that Parly both Parties may be secure * Lib. 1. Agathias condemns Ragnaris the Hun for attempting to kill Narsetes in his return from a Conference whereunto he had invited him This Livy concludes to be a manifest breach of the Law of Nations when Enemies under the colour of a Treaty shall lay wait to destroy each other which he there stiles Colloquium perfide violatum A treaty most perfidiously broken Liv. 38. Upon that fact of Cnaeus Domitius before-mentioned in treacherously seizing upon King Bituitus whom he had first invited to a Parly and afterwards entertained as his Guest Valerius Maximus gives this censure Nimia gloriae cupiditas perfidum existere coegit Lib. 10. c. 6. His immoderate thirst after glory constrained him to be perfidious Wherefore I cannot but admire why he that wrote the eighth Book of Caesars Gallick Wars rehearsing the like fact of T. Labienus adds these words Infidelitatem Comii sine ulla perfidia judicavit comprimi posse He conceived that Comius his disloyalty might be thus supprest without any imputation of Treachery IV. During a Parly each may promote his own interest not hurting the other Neither may we wrest this tacite consent beyond what I have said for if carrying themselves inoffensively one towards another during the conference they can under the colour of that conference divert their Enemies from their Warlike Counsels and in the mean time strengthen themselves and promote their own affairs this shall not be accounted treachery but policy such as in times of War are not lawful only but
the major part it shall bind the minor ibid. whether it may be made with a Minor Captived Exiled King ibid. being made with a King whether the People and his Successors are bound 545. broken on one side may be kept by the other 550. whether to be preferred before liberty 65. firmly made is the end of War 571. caused by fear unjustly occasioned not to be broken 533. made free Cities surrendering to be set at liberty page 546 By Peace the Primitive Christians understood a vacancy from persecution page 29 Peculium what 522. how far the Lords and how far the Slaves ibid. Perfidiousness with Rebels Pirates Thieves connived at by the Law of Nations 462 what perfidious men to imploy is against the Law of Nations ibid. The People may alienate the whole Government from themselves page 37 The People of Rome chuse always their own Emperour 144. are the same they anciently were page 143 The People changing their Government stand obliged to those Debts contracted before such change page 143 A free People held the same place the King held before ibid. The People are the same under any Government ibid. yea though they change their seat 142. when they cease to be the same 141 142. whether punishable for their King 403. their consent how gained 119 120. how far obliged by the act of their King in making Peace 545. why punished for the fact of their King 41. their Patrimony or any part how far and in what cases engaged by their King 120. not alienable without the consent of the three States ibid. No Part of the People can be alienatd from the whole without consent but in extreme necessity page 119 Perjury always attended with curses 166. for it Glaucus how punished 166 167. and lying have the same punishment 175. it reaches the whole Posterity 166. its very intention punished 166 167. to Pirates and Robbers not punished and why page 538 Permission twofold perfect and imperfect 10. what 4. of crimes by him who ought and can hinder it punishable page 394 395. Permitted many things are which are not agreeable to reason or equity page 494 495 Persians have many Wives 106. their opinion concerning God 466. the custom in judging of Criminals 379. their severity in punishing the Children and Kindred for their traiterous Parents 403. the Right over their Children page 104 Perseus his Controversie with the Romans page 195 Peter forbid to use his Sword why page 133 Physicians rewarded though they cure not and why page 478 Picture of Jalysus by Protagenes at Rhodes page 218 Pignorations forbidden by the Civil Law page 446 447 Pillage what page 480 Pipin the Father of Charles the great attended with one only Souldier killed his Enemy in his Tent page 463 Pirates being subdued no triumph granted 451. against them every Prince makes War 384. they are not capable of making a solemn War 378. what they take alters not the property 492. though they use some equality amongst themselves yet they make not a civil society 450 451. which they may do if leaving their Piracy they settle under wholsome Laws page 451 What Right is given to Pirates and Robbers as such cannot by way of punishment be taken away 202 203 they cannot claim the right of Embassies page 205 206 207 The Pirate Diomedes his answer to Alexander page 414 By a Pirate or Robber what is taken may be recovered page 203 Pirates or Thieves how different for a Nation doing some unjust things 450. some Nations live by Piracy 451. War with Pirates and Subjects no just War page 454 Pyrrhus in danger to be poysoned by his Physician was forewarned by the Romans page 461 Places unoccupyed are the first Occupants 81. and persons freely surrendered not to be restored unless so agreed page 545 546 To Plant in another soyl no ground of War page 406 Plants whether theirs whose the spoil is page 139 Pledges he that takes to what bound 160. an agreement about them how understood 556. how engaged the Right of redemption how lost ibid. To Penitents whether all Punishments be remitted page 372 Poison not allowed against a Prince though an Enemy page 462 To Poyson Springs Weapons against the Law of Nations but not to corrupt Waters otherwise page 461 462 Polygamy not forbidden the Patriarchs nor under the Law 16 17 105. allowed by most Nations page 106 Pompey enters the Temple at Jerusalem by the Right of a Conquerour page 466 467 The Pope not universal Bishop 408. nor hath he any jurisdiction in temporal things much less over Kingdoms ibid. delivers the ornaments of the Empire to the Emperour by what Right 145. and Crowns him as a King of the Romans page 144 145 Possession may be acquired by another 472 of creatures wild got by instruments and not by wounding but by taking them page 135 Possession long confirms a private Right but is of no force against different Nations though sometimes pleaded 97. immemorial and uninterrupted transfers Dominion by the Law of Nations page 100 The Right of Possessing thing moveable may by Law be anticipated page 89 Possession unjustly gained and a sentence unjustly past have some effects of a just Right 415. after three hundred Years restored by the Emperour Honorius to the Ancient Occupants page 492 Things long out of Possession to require vain page 98 Possession long much favoured in Empires and why page 99 100 The Present Possessors Right is best if in doubt page 82 414 Of things twice sold his title is best that first got Possession page 161 The Posterity of Slaves are Slaves page 481 Postliminy what its original 487. by it some things return and some received 488. if they escape to Friends or Associates ibid. in force as well in Peace as War ibid. in Peace it belongs to such as are unfortunately found among Enemies ibid. by it Freemen are said to return but Horses Mules Ships to be received 489. by it a Freeman returns free when ibid. so may a People or Nation 490. but not they that surrender themselves 489. by it how Servants are received and how Fugitives page 491 Of Postliminy moveable Goods what not capable 492. Lands whether capable ibid. Postliminy in force not amongst Enemies only but Strangers ibid. how this may now take place ibid. by it who may return in Peace and who not page 488 Power what 3. the Civil wherein it consists 36. the supreme what 37. the Subject in whom it is ibid not always in the People ibid. Supreme some but temporary 39 40. Civil called by Peter an humane and by Paul a Divine Ordinance in what sense page 60 The Power of Fathers over their Sons with the Romans page 104 Power supreme may be obliged by the facts of their inferiour Officers and how 563 564 565. must have some Prerogatives page 101 All Power is given to the Lord over his Slave and why page 482. Power over his own life no man hath page 380 The Power that common