Priviledges were but Private Laws which are not to be maintained against the Publick Safety which is the highest Law and this she asserts to be the Law of Nations Many things to this purpose we may find in Jo. Meursius his Danish History l. 1. 2. where the Lubeckers and the Emperour are for a free trade the Danes against it The Carthaginians we read sometimes took the Romans Prisoners who had carried such Warlike Provisions to their Enemies but yet upon demand they set them at liberty But Demetrius being possest of Attica and having strictly begirt Athens both by Sea and Land taking a Ship that was attempting to relieve it being now ready to yield hanged the Master of the Ship together with the Pylot whereby others being deterred from the like attempt the City was yielded unto him as Plutarch relates in the life of Demetrius Not much unlike unto this was that which the same Plutarch in his Mithridatick War testifies of Pompey That he placed Guards upon the Bosphorus so that if any Merchants sailed through it they were if taken put to death VI. Whether fraud in War be lawful As to the manner of prosecuting War it is generally granted That Force and Terrour are the most proper ways The Question is Whether deceit be lawful Both Homer and Pindar were of opinion that an Enemy might be annoyed any way by Fraud or Force plainly or secretly clamve palamve So Virgil Force or Deceit who in a Foe disputes No man was more famous for wisdom than Solon yet he made use of both Lib. 15. So did Fabius Maximus and is highly commended for it by Silius For stratagems of War none so celebrated as Vlysses amongst the Grecians from whence Lucian makes this conclusion Lucian Phil. Xenoph. de Cyri Inst lib. 1. Thucyd. lib. 5. Plut. Agesilaus that Deceit in War is praise-worthy There is nothing so profitable in War as Fraud saith Xenophon Bracidas in Thucydides gives the greatest Honour unto him that overcomes his Enemy by craft and subtilty Hostes decipere justum licitum To over-reach an Enemy saith Agesilaus in Plutarch is both just and lawful So Polybius He that can circumvent his Enemy by wiles and stratagems deserves more Honour than he that overcomes him by plain force And from him Silius brings in Corvinus speaking thus Bellandum est astu levior laus in Duce dextra 'T is fraud not force commends a Captain most So also thought the severe Spartans as Plutarch notes in the life of Marcellus and therefore they offered more solemn Sacrifices to the Gods for a Victory obtained by craft and policy than for that which was gained by mere force And herein it was that the same Plutarch commends Lysander because he used more craft than courage in destroying his Enemies with whom he compares Sylla of whom this Character was given That he pieced to the Lyons skin the Foxes tail So likewise in that Encomium which he gives of Philopoemen he inserts this That being well instructed in the Cretensian Discipline he did expedite that plain and generous way of fighting by wiles and stratagems Thus Ammianus also Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum eventus Without any distinction at all between craft or courage all prosperous successes in War deserve commendation The Roman Lawyers accounted all fraud whereby an Enemy was weakened to be just and honest And if a man could by any means delude the designs of his Enemy whether it were by force or wit he was to be encouraged Neither amongst Divines doth St Augustine differ in opinion from these Historians as appears by his tenth Question on Joshua Sup Josh qu. 10 Cum justum bellum suscipitur vi aperta pugnet quis aut insidiis nihil ad justitiam interest In case the War be just saith he it matters not to the justice of its prosecution whether it be by force or policy Nay St. Chrysostome seems to give greater honour to those Generals that overcame their Enemies by subtilty than to those who conquered them by pure valour But there are opinions that seem to defend the contrary some whereof we shall rehearse anon The main hingâ— whereupon the Controversie hangs is this Whether deceit be universally Evil for theâ— it will follow that we are not to do Evil that Good may come of it or Whether Deceit be to be ranked among such things as are not universally Evil in their own Nature but that sometimes it may so happen that it may be Good VII Fraud in its negative act not unlawfull Here therefore we are to observe That some fraud consists in a negative act and some in a positive But in this question I extend the word Fraud even unto those things which consist in the negative act as Labeo did who referr'd it unto that fraud which is not Evil when a man by dissimulation preserves that which is either his own or another mans De Offic. 3. Cicero doubtless was very short in his expression when he laboured to explode simulation and dissimulation out of the world For seeing that we are not bound to reveal unto others all that we either know or would have it will follow That it is lawfull for us to dissemble some things before some men that is to hide from them somewhat of what we know Lib. cont Mendat cap. 10. or of what we desire Licet occultare veritatem prudenter sub aliqua dissimulatione The truth we may sometimes prudently conceal under some disguise saith St Augustine which we may do without being justly charged with lying For as the same Author elsewhere speaks Aliud est mentiri aliud verum occultare It is one thing to lye and another to conceal the truth As Abraham when he affirmed Sarah to be his Sister did not therein deny that she was his Wife but only concealed it So St Augustine Veritatem voluit celari Gen. 20. non mendacium dici He was indeed willing that the truth should lie undiscovered without telling a lye Now if this be lawfull in others surely it is necessary and unavoidable in Princes as Cicero testifies in many places A notable example whereof we have in the Prophet Jeremiah Jerem. 38. where the Prophet being enquired of concerning the event of the siege did at the Kings request prudently conceal it from the Nobles alledging some other cause of their Conference which notwithstanding was really true also So Abraham told Abimelech true when he said of Sarah that she was his Sister that is according to the custom of that speech among the Hebrews his near Kinswoman dissembling for that time that she was his Wife VIII Fraud in its positive acts distinguished But fraud which consists in a positive act if in things is called simulation if in words a lye Some place the difference between these two in this That words do naturally signifie the conceptions of our minds but things not
Kings serve God according to his command as Kings when they encourage vertue and depress vice not only in things appertaining to humane Society but in things appertaining also to the worship of God And so in another place How saith he do Kings serve the Lord in fear Ad Bonif. Ep. 50. unless it be in prohibiting and by a Religious austerity punishing all manner of impiety For to serve God as a man is one thing but to serve him as a King is another And a little after Herein do Kings serve God as Kings when in zeal to his service they do those things which none can do but Kings Arg. 2 The second Argument whereby we prove that all Wars are not unlawful is drawn from that place of St Paul before cited in the 13th to the Romans Rom. 13. where it is said That the highest powers and such are those of Kings are ordained of God and that power is therefore called Gods ordinance Kingly Government asserted by St. Paul From whence we inferr the necessity of our subjection together with that honour and reverence we owe unto them and that not so much out of fear regarding the power they have to hurt and punish as out of Conscience as it is Gods ordinance and out of a strong perswasion that in resisting it we resist God himself Now if the thing understood by the word Ordinance were only that which God permits and will not hinder as all actions that are vitious then would there follow no obligation of honour or obedience especially that extended to the Conscience and therefore the Apostles whole Argument would instantly fall to nothing whose main scope was to extol this Regal power which if wicked he could never do but by the same Argument he might as well have commended Theft and Robbery It must necessarily follow then that by this ordained power we understand such a power as God doth especially approve 〈◊〉 and then we may safely inferr That seeing that God cannot will things contrary to â—â—mself that this power is no ways repugnant to that will of God which is revealed in the Gospel and which obligeth all men to honour and obedience neither doth it at all weaken the force of this Argument That at that time when St. Paul wrote all Kings and Princes were strangers to the Christian Faith For in the first place this is not Universally true for even at that time Sergius Paulus being Propraetor of Cyprus had given up his name to Christ long before Acts. 13.12 Act. 13.12 Besides this dispute is not concerning persons whether pious or impious but concerning the Kingly function whether it be ordained of God or usurped by men which St. Paul seems here to determine plainly asserting That ordinance to be from God and thereupon concludes That it ought to be honoured and obeyed and that not outwardly only for fear but even in the inmost recesses of the mind where God alone doth properly reign Christianity then doth not abolish Soveraignty Nero and Agrippa though they had received this faith yet had still remained the one an Emperor the other a King which necessarily inferrs the power of the Sword For as under the Law the Sacrifices were reputed holy See Chrysost in locum supra citatum though offered by Hophni and Phineas Priests unholy so Pia res est imperium quamvis ab impio teneatur The Function is Sacre◠〈◊〉 though the person be never so wicked Saul was anointed King as well as David Arg. 3 A Third Argument is drawn from the words of St. John the Baptist who being demanded by the Jewish Souldiers what they should do to flee from the Wrath to come did not command them presently to lay down their Arms and desert their calling though they fought then under the Roman Banners as in all probability they would have done had it been contrary to the Christian Law to make War but allowing their calling he only labours to reform the abuses of it exhorting them to abstain from acts of unlawful violence and from false accusing and to rest content with their wages Luk. 3.14 Luke 3.14 But here some object That there was so great a difference between the precepts of Christ and the prescriptions of the Baptist that the Baptist seems to preach one Doctrine and Christ another but this we cannot admit first because both of them declare the sum and substance of the Doctrine they intended to preach in the same words Repent for the Kingdom of Heaven is at hand so begins the Baptist Mat. 3.2 And so Christ Mat. 4.17 And Christ himself saith The Kingdom of Heaven that is the new Law for it is the manner of the Hebrews The Jews call their Law Kingdom to call their Law by the name of Kingdom began to suffer violence from the daies of John the Baptist Mat. 11.12 John is said to preach repentance for the remission of sins Mark 1.4 So did the Apostles in the name of Christ Acts 2.38 John required fruits worthy of repentance and threatens destruction to those that do not produce them Matth. 3.8 10. He requires also works of Charity beyond the Law Luke 3.11 The Law also is said to continue till the days of John that is until the new and more perfect Law should with him begin Mat. 11.13 And for this cause it is that John is said to be Prophetis major Greater than the Prophets Mat. 11.9 Luk. 7.26 and that he was sent to give knowledge of Salvation unto the people Luk. 2.77 and to preach the Gospel Acts 19.4 Joh. 1.29 Mat. 3.11 Mat. 1.8 Luk. 3.16 Luk. 2.18 Neither did John ever distinguish Jesus from himself by any difference that there was in their Doctrines but only thus that what John declared generally and confusedly was more distinctly delivered by Christ who was the true light but by this That Jesus was the Messias that was promised the King of an heavenly Kingdom who should give the power of the holy Ghost to those who should believe on him The Fourth Argument and which seems to me of no small force is this That if by the Arg. 4 Gospel alâ— power were taken away from the Magistrate to execute capital punishments An Aâ—gument â—â—â—â—r â—â—om 〈◊〉 conâ—â—ouâ—◠〈◊〉 tâ—â—t â—ou â— follâ—w together with that of the Sword to defend their Subjects from Thieves and Robbers how soon would the Christian world be over-run with Rapin and violence and what a Deluge of wickedness of all sorts would break in upon us That this must needs be the consequence we shall easily grant if we either remember what sad effeâ—ts this remisness brought upon the old world or if we do but observe how hardly these sins of Rapin Cruelty and the like are restrained now even by capital punishments For the suppressing whereof Tribunals Laws and so many kinds and degrees of punishments are invented saith Chrysost in serm ad Patrem fidelem Wherefore if Christ
had intended to have introduced a new and never before heard of form of Government without doubt he would have declared it in such distinct terms and in such a plain dress of words as should have been liable to no misprision as Let no man hereafter adjudge Malefactors to death Let no man take Arms to defend himself or the like which we no where read that ever he did but whatsoever words are wrested from the Scriptures to this purpose are either very general or very obscure But equity it self and common reason will instruct us thus much That in publishing new Laws we are to restrain words too general and to explain terms too ambiguous and rather to decline a little from the common acception of the words than to admit of such a sense of them as may introduce so many mischiefs and inconveniences with it The Fifth Argument is this That it cannot be concluded by any probable argument Arg. 5 that the Judicial Law of Moses was ever abolished till their City Jerusalem was burnt and with it not the form only but the very hopes of a Commonwealth did utterly vanish For neither doth Moses prefix any term or period to this Law nor doth Christ or his Apostles any where declare the surceasing of it unless as it seems to be comprehended in the destruction of the Commonwealth yea rather on the contrary St. Paul saith That the High Priest was constituted that he might judge according to the Law of Moses Acts 24.3 And Christ in the Preface to his pecepts Mat. 5. saith Mat. 5.17 That he came to fulfil the Law and not to destroy it which words if we referr to the Ceremonial Law are not difficult to be understood for when the Picture is finished what need we the foul draught The Ceremonial Law was fulfilled in him it consisting in Types and shadows whereof the substance was Christ but how could Christ be said to fulfil the Judicial Law if as some hold he took it away And if the Jews were obliged by the Judicial Law till the dissolution of their Commonwealth it will follow That the Jews though Christianized in case they had been called to be Magistrates could neither have avoided it nor have judged otherwise than as Moses had prescribed I truly having throughly weighed all that can be said can find no ground at all why any pious man should expound those words of Christ in any other sense This I acknowledge that many things were tolerated among the Jews before the coming of Christ whether as to outward impunity or in respect of inward purity also I shall not now determine which Christ would not permit in his Disciples as for a man to put away his Wife for every offence and for a man injured to require revenge by way of Retaliation but yet between Christs precepts and Moses his permission there may be some difference but no repugnancy for under the Law if a man did retain his Wife or if he did remit revenge privately due he could not be said to break the Law but to do that which the Law did chiefly require of him But it is far otherwise in a Judge whom the Law doth not permit but enjoyn to punish a Murtherer with death which if he do not he himself shall be found guilty before God Now if Christ had commanded such a Judge that he should not adjudge any Malefactor to death this being contrary to Law he had dissolved and not fulfilled it The Sixth Argument is drawn from Cornelius the Centurion who received the Holy Ghost Arg. 6 an undeniable sign of Justification from Christ himself From the example of Cornelius and was baptized into the name of Christ by St. Peter yet do we no where read that he laid down his Commission or that he was admonished by St. Peter so to do But some may say That being instructed by St. Peter in the Christian Religion it may be presumed that at the same time he did resolve to desert his calling whereunto I answer That if it could be any where found amongst the precepts of Christ or infallibly proved that Christ did forbid to make War then what they say were to the purpose But seeing no such precept is extant certainly it is much more probable that in this case of Cornelius somewhat would have been said against it if it had been held unlawful that so in after ages men of that profession might not have pleaded ignorance of the danger incident to that function Neither is it likely that in case the Centurion had then renounced his Military profession St. Luke would have omitted the recording of it as usually he did in like cases as will appear by several places but especially Acts 19.19 Arg. 7 The Seventh Argument we deduce from Sergius Paulus of whom after his conversion there is not the least-mention made of his renouncing his Propraetorship And of Sergius Paulus or of any admonition given him by St. Paul to do it that which is not recorded being most expedient to have been so may be presumed not to have been done at all Arg. 8 The Eighth Argument is drawn from the practice of St. Paul who understanding that the Jews had laid wait to kill him And of St. Paâ—â— acquainted the chief Captain therewith who sent him a strong guard of Souldiers to secure his person which St. Paul did not refuse nor did he admonish either the chief Captain or the Souldiers that it was not acceptable to God to repel force with force which he had been apt enough to have done had he believed it to have been unlawful Arg. 9 The Ninth Argument is taken from St. Pauls precept for paying tribute for conscience sake From Tribute which was to have been paid Rom. 13.6 for of every thing that is honest and just its proper end must needs be so now the properend of paying of Tribute is to maintain the power of the Sword whereby the innocent are protected and the nocent corrected or cut off But that we render unto Princes their Tribute due is a precept of the new Law and bindeth the Conscience as St. Paul testifies to the Romans therefore it follows that by the precepts of Christianity the power of the Sword in the hands of the chief Magistrate is honest and just very pertinent to this purpose Hist l. 4. lib. 22. contra Faustum c. 74. is that of Tacitus There can be no peace amongst Nations without Arms no Arms without pay nor pay without taxes So St. Aug. For this cause pay we Tribute that Souldiers may have their wages to buy necessaries Arg. 10 The Tenth Argument is taken from St. Pauls speech Acts 25. Acts 25. If I have wronged any man or if I have done any thing worthy of death I refuse not to die So Act. 28.18 Act. 28.18 They found no cause of death in me Act. 28.18 saith St. Paul Whereupon Justine Martyr thus glosseth If there be any
in Histories many examples †Meierum in anno 1339. de Flandr Brab ◠XV. An Usurper how far to be obeyed The Acts of an Usurper binding and why We have hitherto treated of him who hath or had a Right to Govern now something we must say of him that Invades or Usurps the Government not after he hath either by long possession or by Consent or Agreement obtained a Right unto it but so long as the cause of his unjust acquisition continues And certainly during the time that he possesseth the Empire his Acts may have power to bind But yet not as they are his for Right to command he hath none but upon this presumption That he who of Right should govern whether King People or Senate had rather that his Laws for that time should be binding than that the people should live altogether without Laws and without Judgements which must necessarily introduce the greatest disorder and confusion Cicero condemns Sylla's Laws as too cruel against the children of those that were proscribed in making them uncapable of suing for Honours yet he thought fit that those Laws should be observed Affirming as Quintilian tells us that the state of the Common-wealth was so contained in those Laws that if they were not kept the Common-wealth at that time could not have subsisted Florus also concerning the Acts of the same Sylla saith thus Lepidus went about to rescind the Acts of this so great a man and indeed not without cause if at least he could have done it without the ruine of the Common-wealth And by and by It was expedient for the Common-wealth being then sick and wounded to be governed by any Laws whatsoever rather than to fret and scarrifie her Wounds by attempting an untimely Cure Yet notwithstanding at such times and in such Cases wherein our obedience is not so exquisitely necessary and yet may help to confirm the Usurper in his unjust possession If by our disobedience we incur no great danger we must not obey But whether it be lawful for the people by force of Arms to deject him that shall thus usurp the Soveraign power or to kill him is disputable XVI An Usurper may be killed during the War if no contract be made with him And in the first place If he that usurps another mans dominion have not gained it by a Just War that is by such a War as hath all the Rights required by the Law of Nations nor by any contract or agreement made with him or Faith given to him but that he holds his possession by force only The Right of War seems in this case to continue By the Right of the War continued and therefore what may lawfully be done against an enemy may lawfully be done against him whom any private man that hath not given his Faith to him may lawfully kill In reos Majestatis publicos hostes omnis homo miles est Against Traytors and publick Enemies every private man saith Tertullian is a Souldier So against such as desert their Colours in the time of War Tertul. Apolog. it is indulged unto every man to take publick revenge in order to the common safety XVII Or by vertue of some antecedent Law The same may be said if before such an Invasion there were extant any such Law authorizing any private man to kill him who dares in his presence commit such or such a fact As for example If being but a private man he shall go with a guard about him or if he shall attempt a Fort or kill a Citizen uncondemned or illegally condemned or if any man shall presume to create a Magistrate without just suffrages Many such Laws we may read of to have been in force among the Cities of Greece with whom it was also thought lawful to kill such Tyrants Such was that Law of Solon in Athens renewed after his return from Piraeeus against such as had abolished Popular Government or that after such abolition had born any office The like Law there was also in Rome called the Valerian Law against any man that should assume the office of a Magistrate without the peoples consent making it lawful for any man to kill such a man uncondemned Plut. Public as Plutarch relates where he thus distinguisheth Solon's Law from that of Publicola's Solon would have such a man legally convicted but Publicola permitted any man to kill him that usurped the office of a Magistrate without any formal Process And such was the Consular Law immediately after the Decemviral Government That no man should dare to create a Magistrate without an Appeal and he that created such might by the Laws both of God and Man be killed XVIII By his Commission who hath Right to the Empire No less lawful it is for him to kill an Usurper that hath an express Warrant so to do from him to whom the just Right of Government belongeth whether it be in the King the People or the Senate Amongst whom likewise we may place the Protectors or Guardians of Kings during their nonage Such as was Jehojada's to King Joas at whose command Athalia was deprived at once both of her Life and Kingdom 2 Chron. 23. XIX Why an Usurper may not be killed but in one of these cases Now unless it be in one of these Cases I cannot perceive how it should be lawful for any private man by force either to deject or to destroy him that usurps the Imperial Dignity Because possible it is that he who hath the true Right had rather prefer the peace and tranquillity of his Subjects though under the Usurpers power than embroil his Countrey in blood or to vex his Subjects with Civil War which are the sad and bloody effects and consequences that attend the Murther or Expulsion of Kings especially if his quarrel be espoused by either a strong Faction at home or powerful Friends abroad Or because it is at least doubtful Whether that King People or Senate in whom the Right of Empire is are willing that the matter should be brought to so desperate an issue And without the precise knowledge of this all violence of this kind is unjust It is very true what Favonius in Plutarch observes Pejus est Bellum Civile Dominatu Illegitimo Vita Bruti An Intestine War is more destructive than any Tyranny For though the Rage of Incensed Tyrants may produce more Tragical effects upon some particular Families ☜ yet the Deluge of a Civil War spreads farther continues longer and leaves more dreadful prints behind it than any Tyranny Give me any peace saith Cicero rather than a Civil War Titus Quintus told the Lacedaemonians Liv. 34. That it would be much better for them to bear with the Tyranny of Nabis than by endeavouring by Arms to recover their lost Liberty to make the Tyrants Grave in the ruines of their City And to this purpose was that prudent advice of Aristophanes Leo in Civitate non est alendus
led As having their minds distracted with no manner of Cares As Josephus testifies And to the same purpose writes Macrobius At the first the Conversation of men was with such an Innocent Simplicity as had no commixture at all of evil in it being altogother unacquainted with that guile and subtilty that now rageth in the World The Wise man terms it Sincerity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Wisd 3.24 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so doth St. Paul Eph. 6.24 and sometimes it is called singleness which is opposed to craft and subtilty They then made the worship of God their only care which was symbolized by the Tree of Life or Divine Wisdom Prov. 3.18 As Philo Arbor vitae and the learned among the Jewâ— explain it with whom agrees St. John Apoc. 22.2 Their dyet was as simple as their lives for they fed on nothing but what Nature liberally afforded them See Ecclus 40.17 And of the four Rivers Ecclus 24.55 The Tree of Knowledge of Good and Evil what it signified Eccl. 7.29 without Cultivation But in this Innocent Simplicity they continued not long but wandring in devious paths and making every day new experiments they became by degrees acquainted with Sin which stands Emblem'd out in Scripture by the Tree of Knowledge of Good and Evil that is of those things which they had power to use well or ill which Philo calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Intermediate Prudence or a Prudence which is conversant about things in themselves Indifferent Whereunto Solomon had respect when he tells us That God made man upright that is Simple but he hath found out many Inventions Which Philo expounds Many subtle Devices Which as Dion Prusaeensis observes were no whit to those that succeeded to our first Parents advantageous as to Life For they made use of their Sagacity not so much to fortifie themselves with Justice and Temperance as to corrupt themselves by voluptuousness Those most ancient Arts as the Tilling of the Earth and the depasturing of Cattle were first exercised by the first brethren not without some kind of distribution of the Fruits This diversity of Arts begat a kind of Emulation and this ended in Murther And afterwards when by Conversation the bad infected the good there grew up a Race of men who for their violence and oppression The Age of the Giants were called Gyants which the Greeks called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because they observed no other rule of Justice but their own strength and therefore thought all to be their own which they could conquer But the World being cleansed from blood and rapine by the Deluge Lust inflamed with Wine succeeded to Cruelty and brought forth Incest and such like unnatural Coitions But that which especially blew the Coals of discord among Princes and Nations was that Heroick Sin of Ambition Ambition Gen. 13. whose Emblem was the Tower of Babylon whence the division of Tongues caused their dispersion into several Countreys some possessing one part of the Earth and some another But yet still among Neighbours there remained a Communion not of Cattle but of Pasturage for so large a proportion of ground being but thinly peopled might without any Inconvenience sufficiently supply all their necessities To mark their own Virg. Georg. 1. and trench out others Land Was not yet Lawful Until at length the numbers both of Men and Cattle encreasing the Land also became sub-divided not into Nations and Provinces as before but into single Families Gen. 13. Gen. 21. And whereas in dry and sandy regions Springs though very necessary yet were not able to supply a multitude Therefore did every man strive by taking the first possession of them to make them his own All these things we may trace out of the Sacred story whereunto we might add the concurrent Testimonies both of Philosophers and Poets who have treated of the first state of things held in common and of the subsequent distribution of them but that I have done it elsewhere Mari liberoâ— c. 15. From hence we learn the true cause why men departed from that Primitive Community of things first of movables and afterwards of immovables Namely because repining to be at Natures bare allowance that is to feed on Roots and Herbs to make their habitations in Caves to go naked or clad with barks of Trees or Skins of Beasts as the Scritefinni described by Procopius did they made choice of a more delicate kind of living which would roquire industry Got. 2. which every particular man was in every thing to use for himself Now that the Fruits of the Earth could not be conveniently laid up or disposed of in common will easily be granted First by reason of the vast distance of the places inhabited the one from the other And Secondly because of the great defect of Love and Charity among men By reason whereof no due equality could be observed either of Labour in their Acquisition or of Temperance in their Consumption And from hence we may further learn for what causes things were reduced into Propriety Not by the sole act of the Mind for no one man could possibly know what another would have to be his own See as to this matter what the honour of the English Nation Selden hath traduced unto us out of the Gemara and the Alâ—oran in his Thalassocratico that he might forbear it Besides possible it is that diverse men might be competitors for one and the same thing But things became proper by compact or agreement and that either express or by partition or tacite as by present occupancy But as soon as experience had taught them the inconveniencies of holding things in common and yet before Division was first instituted it is very probable that they unanimously agreed That what every man possest at that time should be his own Thus Cicero To the end that of what nature had made common each man might call something his it was agreed That look what every man had in possession he might hold as his own And in another place †De sinib l. 3. It is generally granted saith he neither doth nature her self envy it That as to things appertaining to life Quisque sibi malit quam alteri acquiri Every man had rather enjoy them himself than that another should have them Whereunto we may add that of Quintilian If this be the state and condition of things That whatsoever is useful to Men belongs properly to him that possesseth it then surely whatsoever is justly ours cannot justly be taken from us Which very thing Cicero illustrates by a Similitude borrowed from Chrysippus of a race Vbi currendo licet adversarium vincere non detrudendo Wherein a man might overcome his adversary by running but not by detrusion This was wise Solon's wish Riches I fain would have but if ill got Let them be ne're so great I wish them not And when the Ancients stiled Ceres the Law-giver
Injury offered to humane Nature Lib. 1. Romulus in Livy makes it his request to his Neighbours That they would not disdain by Interchangable Marriages to mix generations with them And Canuleius in the same Author pleads thus We saith he require but lawful Wedlock which to Neighbour Nations and Foreigners is usually granted What is unjustly denyed De Civit. Dei lib. 2. c. 17. may by the right of War be justly taken saith Aug. Now whereas the Civil Laws of some people do carefully provide against such Marriages they seem to be grounded upon this reason Because in the times when those Laws were made there was hardly any Nation or People but were sufficiently stored with Women or that those Laws were not intended to interdict all such Marriages but such only as were Legitimate or Just that is which should produce some special effects of a Civil Right XXII A Right to do such acts as were permitted to all strangers Among such acts whereunto a Right in Common is given by supposition we are to reckon those which a Prince or People do promiscuously permit to all strangers for that Nation is injured which is excluded Thus if it be permitted in any place for strangers to Hunt Fish Hawk gather Pearls If it be allowed them to receive Legacies to sell Commodities if even where there is no scarcity of Women to contract Marriages these cannot be denied to any one people unless they have some ways abused their Liberty for which cause it was Judg. 20. that the rest of the Hebrews denied to inter-marry with the Benjamites XXIII I mean such as are permitted by the Right of nature not out of grace and favour But this is to be understood of such Acts only as are permitted as it were by vertue of that liberty which nature gives being restrained or taken away by no Law but not of such as are indulged to any Nation as acts of Grace dispensing with the Laws For to deny a Courtesie is no Injury XXIV Whether to engross all the fruits of one kind be lawful Another Question is frequently started which is this Whether it be lawful for one Nation to contract with another for all their Fruits of such a kind which are no where else to be found so that they shall sell none to any other Nation This in mine opinion may be lawful If that people that shall so buy them be willing to communicate to others at a reasonable price For it concerns not other Nations much by whom they are supplied with their Natural wants so as they are supplied And it is lawful for any to anticipate others in matters of profit especially if there be any special cause for it as in case the people making this Contract shall undertake the protection of the other people and shall for that cause be at some expence or charge For such an Ingrossing made with such an Intent as I have said is no way repugnant to the Natural Right although it be sometimes prohibited by the Civil Law for the benefit of the Common-wealth CHAP. III. Of the Original Acquisition of things where also of the Sea and of Rivers I. That things were originally acquired either by division or occupancy II. Other ways refuted as the concession of Right Incorporeal III. As that also of Specification IV. Occupancy two-fold either of Empire or of Dominion This explained V. That the Right of Occupancy as to things movable may by Law be prevented VI. The Dominion of Infants and Mad-men by what Right held VII That Rivers may be acquired by Occupancy VIII Whether the Sea also may be so IX Anciently in some parts of the Roman Empire that was not lawful X. But as to such parts of the Sea as are Included by Land on each side the Law of Nature doth not Impugn it XI How such a Right of Occupancy may be made and how long it lasts XII That such an Occupancy gives no Right to Impede an Innocent passage of Ships upon them XIII That Empire over some part of the Sea may be gained by Occupancy and how XIV That Toll for certain causes may be Imposed on such as traffick by Sea XV. Of Agreements which forbid some people to sail beyond certain bounds XVI A River changing its course whether it change the bounds of the territory explained by a distinction XVII What is to be determined in case a River do manifestly change its course XVIII That the whole River doth sometimes pass with the Territory XIX That things clearly deserted become the next Occupants unless the Propriety be held in general by some Prince or People I. How things become ours originally THings may become ours by a particular Right either by an Originary or by a Derivative Acquisition Originary Acquisition when men began first to associate together might also arise by Division as we have said but now by Occupancy only II. Other means refuted But some man may haply say That somewhat of Originary Right may also be acquired by some service done or by reason of some Pledge c. But to him that throughly weighs the matter it will appear That this is no new Right unless it be in respect of the manner for it was first virtually in the dominion of the Lord. III. Paulus the Lawyer to the Causes of Acquisition adds this which indeed seems most natural if we our selves have given being to that which we claim as ours But since nothing can naturally be made without some pre-existing matter Now if that be ours the Species being introduced the dominion will be continued But if the matter pre-existing belong to none then shall the Right be acquired by a kind of Occupancy But if it it belong to another then that the Right of Propriety descends not naturally unto us alone will appear by what follows IV. Occupancy two-fold of Empire or Dominion Now let us examine Whether that Occupancy which after those first times is the only natural means of gaining Propriety be also the Originary Of things that properly belong to none two things are subject to be held in Propriety namely Empire and Dominion as it is distinguisht from Empire Which Seneca thus differenceth Ad Reges potestas omnium pertinet ad singulos Proprietas To Kings appertain the Soveraignty over all to private men the Propriety or Dominion of what is theirs Ch. 5. And a little after Rex omnia Imperio possidet singuli Dominio Kings hold all by their Soveraignty and private men what is theirs by Dominion And again Caesar omnia habet Fiscus autem privata tantum sua Caesar hath all yet is his Exchequer private only Lib. 10. Ep. 54. and his own So Symmachus concerning Kings Ye Rule all but preserve to every one his own Of the same mind was Dion Prusaensis Regio civitatis est at non eo minus in ea suum quisque possidet The whole Countrey is under the command of the City yet in it every
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
of their Promises not only among the Romans but among the Grecians And against some they introduced the benefit of Restitution But these are the peculiar effects of the Civil Law and do no whit appertain to the Laws either of Nature or Nations except only in this that where they are received it is agreeable to Nature that they should be observ'd Insomuch that if a Foreigner shall contract with a Citizen he shall be bound up by the Laws of that City as if he were for that time a Subject of that Nation But it were otherwise in case such a Contract were made either on the Seas or in some desart Island or by Letters between two persons inhabiting diverse Nations For then such Agreements should be regulated by the Law of Nature only as are the Agreements made between such as are invested with the Supreme Power as they are such For in these what they do privately may by their Laws be made void when it is done in favour to those powers but not when done to their Punishment VI. A Promise made through error how far Naturally it obligeth Concerning a Promise made by an error or mistake in the person promising the question is yet more difficult For we are to distinguish between that Error which is about the substance of the thing promised and that which concerns not the substance and then we are to consider whether the Fraud gave occasion to the Promise or not Again whether he with whom we have to do be guilty of the Fraud or not And lastly Whether the Act be strictly due or binds only in Honesty and Conscience For the opinions of Lawyers do vary according to the variety of these cases declaring some acts to be void and others valid But so that according to his will and pleasure that is injured the promise may be either revoked or reformed But most of these distinctions proceed from the Roman Laws as well from the old Civil Law as from the Praetorian And some of them are either not altogether true or not well digested But yet it sufficeth to chalk out a way for us to find out the natural truth for as concerning the force and efficacy of Laws this hath ever been allowed of by the general consent of almost all Nations That when a Law is enacted upon the presumption of such a Fact as was not really so done as was suggested and believed that Law is not obliging because the truth of the Fact failing the foundation of that Law faileth with it But when a Law is grounded upon such a presumption may be gathered from the matter of that Law from the Words and from other Circumstances The like may be said in this case if a Promise be made upon the belief of such a fact as indeed never was done that Promise naturally is of no force because the Promiser did not give his consent absolutely to the thing promised but upon such a condition if not exprest yet presumed as really was not As in that case mentioned by Cicero of him who falsly believing his own Son to be dead appointed a stranger to be his heir And yet in case the Promiser were neglective either in his diligence to examine and search out the truth of his Sons death or in his care of expressing his own sense and did thereby occasion any damage to the person to whom he made that Promise he shall be obliged to repair it Not upon the account of his Promise made but for the damage which through his neglect was sustained by him to whom it was made whereof we shall speak more anon But if there were an error or mistake in the person promising and yet that Error was not the cause of the Promise made the act shall be valid because there was nothing wanting of a true consent But if in this case also the person to whom the Promise was made did by any fraud of his directly or indirectly occasion that error what damage soever shall accrue to the Promiser by reason of that Error shall be by him repaired But if the Promise were but in part occasioned by an Error then as to the other part the Promise shall stand good VII A Promise made through fear obligeth Concerning those Promises that are made through Fear questions do arise no less perpiext For herein they do usually distinguish of Fears which are either great and vehement or light and slender If great then they consider whether it be so absolutely or in respect only of the person fearing Then whether it be occasioned justly or unjustly and whether by him to whom the Promise was made or by some other As also they distinguish of the Acts whether free and generous or grievous and burdensome and according to this diversity are some Acts said to be void others revocable at the pleasure of the Promiser and others to be wholly renewed Concerning every one of these cases there are great differences in opinions But I do wholly incline to those who hold That setting aside that Authority of the Civil Law which sometimes takes away and sometimes moderates the binding power of such promises He that promiseth any thing through Fear is obliged to perform what he hath so promised because the consent he gave was not conditional as in the case of Error but absolute For as Aristotle well observes He that for fear of being shipwrackt throws his goods overboard Eth. Nic. 3. would willingly preserve them on condition that he might not be wreckt but upon a serious consideration of the present danger he is in he absolutely resolves that his goods rather than himself shall perish But yet we must also crave this allowance That if he to whom the Promise was made did occasion not a just but an unjust Fear though but slight and that thereupon the Promise was so made he is bound to discharge the Promiser if he desire it Not that the Promise is in it self void but for the damage that he sustained who made it by reason of the injury done him See Chap. 17.6.19 and P. 3. ch 19. §. 1. But what exceptions the Law of Nations admits herein shall in its proper place be hereafter explained But that some Acts are rescinded which were made through Fear being occasioned not by him with whom we have to do but by another is an effect of the Civil Law which doth often either null or revoke Acts though freely done if they that do them be of weak Judgement Seneca argues according to the Law of Nature when he tells us That whatsoever either Force or Fear or Necessity makes us to grant Lib. 4. cont 26. may be revoked if that Force or Necessity be imposed on us by him to whom the grant is made But what saith he is that to me what thou art compelled or necessitated to do if not by me Meam culpam oportet esse ut mea poena sit It is necessary that the Fault should be mine own
farther Whether the person so impowred be a Free-man or not as is usually done by the Roman Laws but conclude rather That the Promise is fully compleat by that acceptance For it sufficeth to signifie our consent though by a Servant whose will is reputed ours if we authorize him and he accept thereof But if he that accepts of the Promise have no such order from him to whom the Promise is made but is deputed by the Promiser then hath the Promiser no power to revoke the Promise until he whom it concerns do either accept thereof or reject it Yet so notwithstanding That he who in the mean time hath accepted of the Promise made hath no power to remit it because he is not deputed to accept of any Right to the thing promised but to bind the Promiser to observe and perform his Promise in sustaining the thing promised So that if the Promiser shall retract he may be said to break his Faith but he cannot be said to invade any mans Right or Propriety XIX In what time a charge may be added to a Promise By what hath been already said it may easily be conceived what we are to judge concerning such a charge as is usually added unto a Promise For such a charge may be imposed as long as the Promise is not yet made perfect by acceptance nor the Faith of the Promiser given that it shall be irrevocable But yet this charge added for the use and benefit of a third person is also revocable until it shall be by that third person accepted Although some there be that as well in this as in other the like questions are otherwise perswaded But he that throughly considers the matter will quickly discern so much of natural reason and equity in what hath been said that he will judge all farther proofs to be needless and superfluous XX. A Promise in it self invalid how it may be made firm It is also sometimes Controverted How a Promise occasioned by an error or mistake in the Promiser may be made good if the truth being known the Promiser notwithstanding his mistake be willing to stand to his Promise The like question may be put concerning Promises occasioned by fear force or the like when the cause thereof shall afterwards cease as in the case of Matrimony and the like For the confirmation of which Promises some are of opinion that nothing is requisite but the internal acts of the mind which being conjoined with the former external act sufficeth to contract a firm obligation Others disallowing this because they cannot admit that any outward Act should be a competent sign of an internal act subsequent to it do require a new verbal Promise and Acceptance But the middle opinion is the safer which requires some outward act but not such as is verbal seeing that the retaining of the thing promised by the person to whom it was promised and the relinquishing of it by the person promising or some such like act are sufficient to testifie the mutual consent of both parties XXI Promises made without cause not naturally void They also must not be omitted lest we should confound the Civil Law with the Law of Nature That by the Law of Nature Promises as well as Gifts may be good and valid though there be no cause or consideration exprest wherefore they were made XXII He that promiseth for the fact of another how far he standeth bound Neither is any man bound by his Promise that he makes for the fact of another man to make good all that wherein they differ so as he omits nothing of that which on his part may be done to procure that man to do it unless either the words of the Promise or the nature of the business do naturally require a stronger obligation So Livy in the like case He thought himself discharged of his Promise forasmuch as he left nothing unattempted that lay in him to have had it performed CHAP. XII Of Contracts I. The Division of humane Acts unto others profitable And first of simple and mixt II. Simple are either purely liberal or with mutual obligation III. Or into such as are permutatory as well such as separate the parts IV. As those that introduce Community V. Those that are mixt are either so principally VI. Or by way of Accession VII Which of these Acts are called Contracts VIII In all Contracts there should be an equality and that first in such Acts as are Praecedaneous IX As an equality in knowledge X. An equal freedom of Will XI 2. In the very act if it be by way of Exchange XII 3. In the things contracted for explained XIII That this equality takes place even in such Acts as are either meerly or in part beneficent XIV How things are to be valued and for what causes the prices are either increased or diminished XV. When things are perfectly bought and when the Dominion is transferred XVI What Monopolies are contrary to the Law of Nature or Rules of Charity XVII How mony receives its function XVIII Of Lands hired nothing of the Rent is to be abated by reason of the sterility or the like And if the first Tenant be disabled to use the Land or thing may it not be let to another XIX How the just hire of mens Labours may be increased or diminished XX. By what Law Vsury is forbidden XXI What profit falls not under the notion of Vsury XXII What the Civil Law determines of Vsury XXIII In Contracts what value we are to put upon the peril we run in securing the main stock XXIV In social Contracts how the profits are to be proportioned and of its several kinds XXV Of Naval Confederations XXVI If there be an inequality in the terms agreed upon as to Acts external the Law of Nations allows no remedy and in what sence this is said to be Natural I. The division of humane Acts to others profitable OF such humane Acts as are to others profitable some are simple others mixt or compounded II. Of those that are simple some are meerly beneficent some mutually obligatory Of those that are Simple some are Beneficent others Permutatory Such as are Beneficent are either merely gratuitous or infer a mutual obligation Such as are merely gratuitous are either presently done or such as extend to the time to come Those that are presently done are either some fact or deed that yields profit to another whereof there is no necessity that we should discourse since though it doth produce profit yet it hath no effects of Right Or some donative or free gift which also is a profitable act and presently done whereby Dominion is transferred and whereof we have treated above when we discourst of the acquiring Dominion Those gratuitous acts that extend to the time to come are promises either to give or to do somewhat whereof we discourst in the Chapter preceding Those beneficent Acts which infer mutual obligation are such as dispose either of things without alienating them or
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
fitter opportunity to treat hereof when we come to speak of such accidents as usually happen in War CHAP. XVI Concerning the True meaning and Interpretation of Leagues and Promises I. How Promises do outwardly bind II. The words to be understood as vulgarly taken unless strong Conjectures lead us otherwise III. Words of Art according to Art IV. Conjectures useful where the words are either ambiguous or seem to be repugnant or offer themselves freely as V. From the Subject matter of the Promise VI. From the effect VII From things conjoyned either in beginning or in place also VIII Whereunto appertains that conjecture that is drawn from the reason moving and when and how that takes place IX Of the large and strict signification of words X. The distinction of Promises into favorable burthensome and mixt or middle XI Concerning the acts of Kings or people the difference of those Contracts which oblige in equity and of those that oblige in strictness of Law rejected XII Out of these distinctions some rules are formed that will guide us in our interpretations of Promises and Contracts XIII Whether under the name of Associates those in present or those also in future be comprehended and how far XIV How these words are to be understood that one party shall not make War without the approbation of the other XV. Concerning these words that Carthage shall be free XVI What Contracts are to be accounted personall and what real explained by distinction XVII A League made with a King is in force though that King be expelled his Kingdom XVIII But not as to him that usurpeth the Kingdom XIX A Promise made to him that shall first do a thing if that thing be done by many at once to whom is it due XX. A Conjecture freely offering it self may either be extended and in what cases XXI Concerning the fulfilling of a command not directly in kind but in another kind as good or better XXII Or Contracted and that either from some Original defect in the Will which also may be collected either from the absurdity that will ensue XXIII Or when that which was the sole cause exciting the will shall cease XXIV Or from the defect of the matter XXV Observations upon the aforesaid conjectures XXVI Or from the repugnancy of some emergent case with the Will which may be collected either as being unlawful XXVII Or when by reason of that act some great damage or charge ariseth to him that promiseth XXVIII Or by some other signs as when the parts of the writing do clash one against the other XXIX By what rules then we are to steer our conjectures XXX That in a dubious case a writing is not necessary to perfect a Contract XXXI That the Contracts of Kings are not to be interpreted by the Roman Laws XXXII Whose words are most to be observed his that offers a condition or his that accepts of it explained by a distinction I. How Promises bind externally IF we respect the person alone that promiseth he is obliged to perform that freely whereunto he was willing to be bound What Cicero saith in this case is true * De off l. 1. In fide quid senseris non quid dixeris cogitandum In things depending upon faith what thou meanest is more to be considered than what thou saiest But because our inward thoughts are not discernible and that there would be no obligation at all by Promises were every man left at liberty to frame what interpretation he pleased of them therefore some certain Rule must be agreed upon whereby we may know to what our Promises do bind us and surely natural reason will inform us That he to whom any thing is promised hath a power to enforce the Promiser to that which his Promise rightly interpreted doth suggest For otherwise no treaty would have an end which in things appertaining to Morality is held impossible And perhaps in this it was â—hat Isocrates treating of agreements in his prescription against Calimachus saith We men do all of us whether Greeks or Barbarians dispatch affairs using this common rule hence it was that in ancient Leagues this form was usual saith Livy Without any evil fraud according to the usual sence and true meaning of the words here at this time Thus do the Hebrew Doctors upon the 30. of Numbers interpret Vows in that sence as the words are commonly then understood The best rule of interpretation is that which guesseth at the will by the most probable signs Now these signs are of two sorts as words and other conjectures and these considered sometimes a part and sometimes conjoyned II. According to the sense of the words if other conjectures do not hinder If there be no conjecture that guides us otherwise the words are to be understood according to their propriety not that which is Grammatical or Primitive but that which is vulgar and most in use Quem penes arbitrium est jus norma loquendi Which givâ— at pleasure Rules and Laws to speech It was very well said by Procopius Vand. l. 1. Long time doth not alway preserve words in the same signification as they were at first given For the very things themselves are turned in sense according to mens pleasure without regard to those names that were originally imposed on them It was but a simple refuge that the Locrians made use of against Perjury when having put some of their enemies earth into their Shooes and carrying some heads of Garlick covertly on their shoulders they sware they would keep the Articles of the League which were very grievous so long as they carried those heads on their Shoulders and trod upon that earth But having cast away the earth out of their shooes and thrown away those heads of Garlick from their Shoulders they thought themselves absolved from their Oaths which story we find in Polybius not much unlike is that of the Boeotians in Thucydides Lib. 12. Who having promised to restore a certain City thought it sufficient to preserve their faith if they restored it not standing but demolisht So Sultan Mahomet having taken Euboea cut the Governours body asunder whose head he had promised to preserve But as Cicero well observes this is not a way to prevent Perjury but to confirm it III. Words of Art according to Art Referent ad flatum finitivum If in a League there be an occasion to make use of Terms of Art which the people understand not those terms are to be defined and explain'd by the most skilfull in that Art as what Majesty is what Parricide c. wherewith Rhetoricians use to limit the matter treated of For what Cicero saith is very true That the terms of Logick are not vulgar but proper to themselves only as indeed are the terms of every art As when the word Army is used it is to be understood of such a number of Souldiers as dare openly invade anothers Dominions For Historians do distinguish between those
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
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
the action or is ready to receive what is injuriously taken away or that shall participate of the wrong done by any other means VII Secondarily Secondarily they are bound to reparation which give their advice before it be done or that commend them that did it being done For as Totilas in his Oration to the Goths observes He that commends a Malefactor even he is to be reputed the Author of the fact And as Vlpian speaks concerning an evil Servant whom if upon the discovery of his intentions to run away from his Master or to steal any thing from him another man shall commend That man is bound to give satisfaction for we ought not by our commendations to encourage a Malefactor to sin For as Cicero observes in his Philippicks What difference is there between him that perswades to an unjust act and him that commends it being done VIII They that by not doing occasion the Damage Primarily By not doing what he ought a man may be bound to reparation two ways Primarily or Secondarily Primarily as when he that hath a Right properly so calleâ— expresly to forbid the doing of it or to defend him who hath the wrong done him doth it not for such a man the Chaldee Paraphrast calls obfirmator a strengthener of wickedness qui non vetat cum potest jubet He that hinders not when he may commands He is not only guilty that sets fire to his Neighbours house but he also who could have hindred it but would not IX And Secondarily Secondarily He that doth not disswade when he ought or shall conceal the fact which he ought to discover In all which cases the word debet i. e. ought is to be referred to that which is a mans proper Right strictly taken whereunto Commutative Justice hath respect whether that Right do arise from the Law or from any quality in the person For if it be due only by the rule of Charity the omission thereof may be a sin but not such as shall oblige to reparation for to this it is required that there should be some proper and peculiar Right as we have said before X. What is required as to this Where also it must be observed that all these do so stand obliged as we have said if they are truly the cause of the damage given i. e. if they do contribute any thing of moment to either the whole or any part of it For if it shall evidently appear that he that did the wrong had certainly done it even without their act or neglect as it often falls out in those of the Second order and sometimes in those of the First They are not bound to reparation Which notwithstanding is not so to be understood that if there wanted not others that would advise and help they that did so are not obliged if he that occasioned the damage had not done it without Counsel and assistance For even those others also if they had counselled and assisted had been partakers of the sin and so obliged to reparation XI In what order they are bound But they are principally bound who by their own command or by some other means did compel another to do the wrong But if they fail then he that did the fact and after him the rest Every one that contributed aid or advice to the fact are bound to make reparation for the whole damage if the whole fact proceeded from them though not from them alone XII The obligation extends to the Damages that are consequent He that is guilty of the fact is also guilty of all the evil consequences that ensue by reason of that fact Seneca in one of his Controversies handles this question putting the case in one who setting fire to a Plane-Tree burnt thereby the houses adjoyning and gives his opinion thus Although thou didst not intend thy Neighbour so great an injury yet art thou bound to satisfie the whole as if thou hadst done it purposely for he ought to be innocent as to every part of the wrong done that would excuse himself by his imprudence Ariarathes King of Cappadocia damming up in wantonness the mouth of the River Melanus caused the Waters to swelland rage with that violence that forcing its way into the River Euphrates did so swell that River also that washing away a great part of the Cappadocian Land it did much harm to the Inhabitans of Galatia and Phrygia which matter being referred to the Romans Ariarathes was adjudged to pay them 300 Talents to satisfie the damage thereby sustained XIII An example in an Homicide For examples let these suffice First He that kills a man unjustly is bound to pay the charge of Physicians and Chirurgeons if any such there be yea and to nourish all that depend upon the person killed for life and lively-hood as Parents Wife Children and to give satisfaction proportionable to the hopes of that Aliment consideration being had to the Age of the person killed and to other Circumstances As we read of Hercules who the better to expiate the Murther of Iphitus whom he had slain paid a great summ of money to his children for the wrongs they sustained by their Fathers death For as Michael Ephesius well observes What is so paid is in a manner paid to him that is killed We speak here of an unjust Homicide i. e. of him who having no lawful power given him shall commit such an act of violence that occasions the death of the party injured wherefore if a man shall have a Right to do it but shall offend against Charity as he that will not fly away he shall not be obliged to reparation The life of a Freeman is unvaluable but otherwise of a Servant who may be sold XIV In him that maimeth another So he that hath maimed a man and deprived him of one of his Limbs is bound to pay all charges and to satisfie him for the loss of his Limb by reason whereof he is uncapable of making that improvement of his labour as otherwise he might have done But as I said before of the life so here I say of the Limbs of a Free-man that they cannot be valued The like may be said in case of false Imprisonment XV. In an Adulterer So also the Adulterer and Adulteress are bound not only to save the Husband harmless as to the Childs nourishment but to repair whatsoever Damage the Children that are Legitimate shall afterwards sustain by any share or portion that that Child shall claim in the Inheritance If a man shall either by force or fraud vitiate a Virgin he shall be obliged to pay her so much as she shall be thought to be damnified in her hopes of Marriage and if he obtained the use of her body by the promise of Marriage he stands obliged to perform his promise XVI In a Thief or Robber and others A Thief or Robber is bound to restore the thing taken away together with its natural increment and the ensuing Damage or the surceasing of
his gains but if the thing taken away do perish then the value of it not to the highest rate nor to the lowest but moderated Among these we may also rank such as defraud Princes of their lawful Customs and Contributions In like manner are they bound to reparation that have wronged others by either their unjust sentence or unjust accusation or by their false Testimony XVII In him that by fear or fraud causeth a Promise As also he that shall either by fraud force or unjust fear urge a Contract or a Promise from any man is bound to make reparation to the full For hereby he robs the man he deals with of a double Right First By the nature of Contracts he had this Right That he ought not to be deceived And then by the natural liberty that every man should have He ought not to be enforced or unjustly affrighted And among these we may likewise range those that will not perform what by their Office they are bound to do without Bribes XVIII What if the fear be naturally just But he that hath given just cause why he ought to be by force or fear compelled hath reason to blame himself For an involuntary act arising from a voluntary is naturally reckoned for a voluntary XIX What if the fear be held by the Law of Nations for just But as by the consent of Nations all Wars made and denounced by the Supream power on both sides are reputed just as to to the external effects whereof we shall speak more anon so is the fear of such a War so far reputed just That whatsoever is obtained thereby cannot be required back In which sense that distinction of Cicero's may be admitted which he makes between an Enemy with whom we enjoy by the consent of Nations many common Rights and a Thief or Pirate For if these extort any thing from us by fear we may require it back unless we are bound by Oath not to do it But so we cannot do from an Enemy Wherefore what Polybius writes concerning the Second Punick War namely that the Carthaginians had just cause to make it because the Romans by denouncing War against them whilst they were engaged in another War against their Seditious Mercenaries had enforced them from the Island of Sardinia and a great sum of money hath indeed some shew of Equity but is not agreeable with the Common Right of Nations as we shall elsewhere prove XX. How far the Civil power is bound by Damages done by their Subjects Kings and Magistrates are obliged to reparation if they do not make use of such remedies against Thieves and Pirates to suppress them as they may and ought to do For which neglect the Scyrians were condemned by the Amphictyones I remember that this case was once proposed amongst us when our Estates having granted Letters of Mart against our Enemies some of those to whom these Letters were granted abusing themselves and us had robbed our friends and leaving our Country betook themselves to the Seas and though recalled would not return whence arose this question Whether our States were bound to repair the damages by reason of Letters of Mart granted them either because they made use of such wicked instruments or because they did not require from them sufficient caution that they should not transgress their Commissions Whereunto I gave this answer That they were obliged to no more than to punish them being found or to deliver them up And besides to take care that reparation should be made out of the Goods of the Delinquents A judged case For that the States were not the causes of the depredations nor did they participate of them that they had forbidden them by severe Laws to wrong their friends but to require Caution from them they were not by any Law obliged seeing that they might empower all their Subjects without any Codicils to make what spoil they could of whatsoever was their Enemies as had been anciently done Neither was this permission the true cause of the wrongs done unto their friends seeing that private men might arm their Ships and put out to Sea even without permission Neither could they foresee that these men would prove wicked Nor could they altogether avoid the making use of wicked men for then it was not possible for them to raise an Army Neither if their Souldiers either by Sea or Land did injure their friends contrary to the Command of the Supream Magistrate were they obliged to reparation as might easily be proved by the Testimonies of France and England Yet in a League between Francis de Valois King of France and Henry the Eighth of England Herbert's Henry the 8. page 54. it was agreed the better to prevent Depredations by Sea that no Merchant of either Nation should depart out of their Ports without giving Caution to their respective Admirals that no wrong or molestation should be done by Sea to either of their Subjects But that any man should be bound to repair the Damages which his Servants shall without his fault and against his command do unto others belongs not to the Law of Nations by which this cause ought properly to be judged but to the Civil Law and yet not in the general but as it is introduced for some particular reasons against Mariners and some others And thus hath this case been determined by the Judges of the Supreme Assembly against certain Pomeranians and that according to Precedents of things of the like nature two ages before XXI The owner of a Ship or Beast that hurts his Neighbour not bound by the Law of Nature This also is worthy our observation that it proceeds from the Civil Law and not from the Law of Nature That we deliver up our Beast or Bond-slaves to punishment which have endamaged our Neighbour For the owner of them being innocent is naturally bound to nothing as neither is he whose Ship without his fault falls foul and hurts another though by the Law of diverse Nations as well as ours such Damages are usually divided between both because it is very difficult to be proved XXII The Damage against a mans honour how to be tepaired But the wounds we receive in our Honour or Fame as by Stripes Reproaches Curses and such like must have their proper cures And in these no less than in Theft and other Crimes the hainousness of the fact is discerned by the effect For as in those our reparation consists in the punishment of the Thief so in this The Damage we sustain is repaired by confession of the fault and by exhibiting all due Honour to him who is wronged and the publick Testimony given both of his innocency and our own repentance and such like means Although the offender in this kind may be punished in his purse if the injured person desire it because money is the Common Standard whereby all things tending to profit are measured CHAP. XVIII Of the Rights of Embassages I. There are some
sin is the injustice of the fact For we speak not here of all sins but of those which have respect to something without the person sinning Now this injustice is so much the greater by how much the damage thereby done to another is greater And therefore those are the greatest injuries that are actually consummated and those the least which though they have made their progress through some Acts yet are not arrived to the utmost Act For which reason the coveting of our neighbours goods is placed by Moses in the rear of the Decalogue as being a sin of the lowest form or as it were but an introduction to sin which the farther it goes the worse it is In either of these kinds that is esteemed the greatest crime which disturbs Common Order and thereby gives offence to most men After this follow the injuries done to particular persons And of these the highest is that which touches the life of Man exprest by Moses in this Precept Thou shalt not kill The next is that injury done to a Mans Family the foundation whereof is laid in Matrimony contained in these words Thou shalt not commit Adultery The third and last are such as are committed against a Mans private Estate either directly as by stealing or indirectly as when by our false Testimony we prejudice the Right of others These may be yet more acutely divided But it pleased Almighty God in the Decalogue to follow this Order For under the name of Parents which are Natural Magistrates it is fit that Magistrates and other Rulers and Governours should be comprehended by whose Authority Humane Society is maintained Next unto this follows the Interdiction of Homicide the Institution of Matrimony and the prohibiting of Adultery then Theft is forbidden and false testimonies and in the last place such sins as are inconsummate Neither amongst those Causes that should restrain us from sin are we to place that single damage only that is done directly against others but that also which is probably consequent to it as in firing an house making a breach in the sea-bank or in a bulwark wherein the lives and fortunes of many Families are concerned Moreover that Injustice which we put here as a general cause of restraining from sin is sometimes aggravated by the addition of another crime as our impiety to our Parents our inhumanity to our Kindred our ingratitude to our Patrons or Benefactors Again a sin is reputed the greater being the oftner committed forasmuch as an habit of evil is far worse than some particular acts of evil Once to erre is pardonable but in iisdem saepius errare emotae est mentis To dash often against the same stone is folly nay madness the oftner we offend the greater punishment we deserve And from hence we may collect how far forth that was naturally Righteous which was usually done amongst the Persians who before they passed sentence upon a Malefactor The Persian Custom looked back to his former life and compared it with the present Crime he stood convicted of for they thought it unjust to take away the life of any man for one evil act unless the whole course of his life had been otherwise sinfull And indeed what Asinius Pollio saith is very true We are not to judge of any person by some particular acts but by his continued habits None are to be accounted notoriously wicked but they that have long persisted in a constant course of wickedness Nemo repente fit pessimus No man arrives at the heighth of impudency at the first For our innocency leaves us not but by degrees and boldness that it may learn not to startle at grosser villanies gathers strength and courage by the frequent committing of lesser ones And yet what Asinius Pollio said concerning the judging of mens present Crimes by their former lives ought to take place in such only who being otherwise not wicked have been on a sudden surprized by the sweetness of some particular sin But not in those who have changed the whole course of their former lives For of these God himself by the Prophet Ezekiel proclaims Chap. 18. Lib. 1. that he will have no regard at all to their former deeds whereunto that of Thucydides may very fitly be applyed They deserve doubly to be punished because they are Apostates from goodness and degenerate from Virtue to Vice And therefore it was wisely provided by the Primitive Christians in their censures of other mens failings That no Judgment should pass barely for the crime committed but with retrospection on their fore-past lives and on what followed as may be seen in the Council of Ancyra and others Lib. 3. de Sacerdotio So St Chrysostome Punishments are not alwayes to be inflicted according to the sole measure of the Crimes but we ought to enquire into the mind and manners of him that commits them But a Law being once Enacted against any one Vice Rom. 7.13 makes a sin exceeding sinfull So St Aug. Lex prohibens omnia delicta congeminat De vera Relig. Ob. The Law in prohibiting doubles all offences for it is not a single sin when we commit not that only which is in it self evil bâ—t tbat also which is forbidden us And by this argument St Paul aggravates the sins of the Jews in respect of those of the Gentiles because they had the Law to direct them We must not therefore be rash in judging nor as Cicero adviseth in grave and serious things determine of the will and intentions of the person accused barely by the fact but by his manner and custome of living A good man may haply be ensnared by the sweetness of a sin or by the sudden gust of temptations and yet in the general course of his life he may retain his integrity The heart of Asa is said to be upright all the dayes of his life and yet when he was sick it is objected against him That he sought unto the Physician and not unto the Lord. XXXI The fitness of the person offending to both which is diversly respected Now before we can rightly understand how to punish we must know the aptness and capacity of offenders to apprehend the causes which do either excite them to commit or restrain them from committing of sin Now this aptness or capacity of theirs we may guess at by either their temperament of body age sex education or some of the circumstances of the act For it will easily be granted that children women fools illiterate persons and ill educated cannot so well distinguish between just and unjust lawfull and unlawful as they that have more perspicacity and ingenuity and that they in whom choler predominates are prone to anger and revenge as they also that are of a sanguine complexion are to dalliance so young men are propense to one passion old men to another insomuch that Nature seems to plead somewhat in their excuse as to such sins as are as it were congeneal with them as
saith Servum nihil deliquisse qui Domino jubenti obtemperavit The Servant is not to blame whilst he doth but what his Lord commands him So in another place Velle non creditur qui obsequitur Imperio Patris vel Domini It is not believed to be his own act if he do it in obedience either to his Father or Master Mithridates freely dismiss'd the Servants of Attilius without any punishment at all though they were found guilty of the murder intended upon him Neither would he punish the Children of those that had rebelled against him because they were compelled to Rebellion by the Commands of others Themisthius in his Ninth Oration observes and that truly That Princes have always the resemblance of reason as Souldiers the like of anger The like is observed by Tacitus God hath allotted unto Princes the faculty of judgment but unto Subjects he hath left only the glory of obedience And as the same Tacitus relates Annal. l. 3. The Son of Piso was by Tiberius acquitted of the crime of sedition because what he did was by his Fathers command whom he durst not disobey Servus herilis Imperii non Censor est sed Minister De Controv. l. 3. c. 9. Cont. Faustum lib. 22. c. 74. The Servant is not to sit as Judge of his Masters Commands to dispute them but to obey them But in this case of War let us hear what St Augustine saith If a good man shall happen to war under a King though sacrilegious he may being commanded fight with a good conscience if observing the order of his Countries peace he be either assured that what he is commanded is not repugnant to the Law of God or doubtful whether it be or not so that haply as the iniquity of the command may render the King guilty so the necessity of obeying those commands for Orders sake may likewise render the Souldier innocent And again De Civit. Dei lib. 1. c. 26. If a Souldier under lawful Command shall in obedience thereunto kill a man by the Laws of his City he is free from murther nay unless he do it he shall be held as a Traitor to his own Country But if he shall do it of his own accord or without command he shall be guilty of murder That very Law that will punish him if he do it without command will likewise punish him if he do it not being commanded And from hence ariseth that so generally received opinion I mean as to Subjects That a War may be just on both sides that is in respect of them it may be on both sides void of injustice whereunto the Poet had respect when he said Quis justius induat Arma Scire nefas Who hath the juster Cause It 's hard to know Yet is not this opinion so generally received but that it meets with some difficulty For Pope Adrian defended the contrary which may be confirmed not by that Argument precisely which he urgeth but by this which seems to be more forcible namely That he that doubts contemplatively ought in his active judgment to chuse the safer part which is To abstain from War The Esseni The Esseni are highly commended for that amongst other things they bound themselves by Oath To hurt no man though they were commanded In imitation of whom the Pythagoreans did wholly abstain from War as being the Ringleader to destruction commanding murder as by a Law Neither will it much avail to say for the other opinion That it is dangerous to disobey For whilst both are uncertain for if the War be unjust it is no act of disobedience to avoid it he is not to be blamed that chuseth the safest But our disobedience in such things hath in its own nature less of evil than murther especially of so many Innocents It is storied by the Ancients That when Mercury being accused for killing of Argus excused himself for that he did it at the command of Jupiter the rest of the Gods notwithstanding durst not acquit him No more doth Martial Pothinus an Officer of Mark Antony's when he saith Antoni tamen est pejor quam Causa Pothini Hic facinus Domino praestitit ille sibi Worse than Pothinus 's Case is Antony 's This for himself that for his Lord doth dye Nor will that be of much greater moment which some men urge to the contrary namely That in case we admit that every private person may have liberty to judge of the justness of the War and accordingly either yield or deny their obedience the Commonwealth would soon be destroyed because for the most part it cannot be expedient for the State that the reasons of their counsels should be communicated to the Vulgar For although this may be true where the causes of the War are suasory only yet not where the War is justifiable for there the causes thereof should be published unto all that every man may judge of them and be satisfied in them What Tertullian sometimes said perhaps too confusedly ☞ of Laws in general may very appositely be said of these of War No Subject so faithfully observes a Law as he that knows the reason of that Law For every Law ought to give testimony of its own integrity to those from whom it requires obedience On the contrary Suspecta Lex est quae probari se non vult improba si non probata dominetur That Law that will not endure the tryal is held suspected as that which being disapproved yet exacts obedience is held as wicked Thus when Vlysses endeavoured to perswade Achilles to join with the Grecian Princes in a war against the Trojans Achilles urgeth them to declare the cause Papin What cause Greece hath so great a War to wage Declare whereby thou maist encrease our rage And hence it is that Theseus in the same Poet thus encourageth his Souldiers Go and fight boldly in a Cause so just For as Propertius well observ'd The justice of the Cause cannot but heighten the spirits and inflame the indignation of a Souldier whose courage droops so that he grows ashamed of his Arms when his Cause is nought Herod in his Oration to the Jews after the slaughter in Arabia thus bespeaks them Josephus I am willing to shew you how justly I have undertaken this War being provoked thereunto by the reproaches of our enemies which being known unto you must needs heighten your courage to a revenge It is very often verified what the Panegyrist observed So prevalent even amongst Armies is a good Conscience that the Victory seems properly to belong not to the numbers or valour of the men but to the justness and equity of the Cause And so some Learned Men have interpreted that of Gen. 14.14 as if Abraham had before the Fight instructed his Servants fully in the justice of his Quarrel And certainly the denunciation of War ought to be publick and the cause express'd that the whole Race of Mankind may judge of the equity
Captivis who being first taken by Robbers did afterwards escape unto the Enemy namely That it was true that he was taken away Aegid Regius de Act. supern dist 31. dub 7. n. 122. neither was his having been amongst Enemies nor that he did return back by Postliminy any impediment unto him as to that thing The very same Answer from the Law of Nature may serve concerning him who being taken in an unjust War and afterwards either in a just War or by some other means comes under the power of another For as to that which we here call internal Right there is no difference between an unjust War Can. 10. and Piracy or Robbery And according to this opinion did Gregorius Neocaesariensis frame his Answer being consulted with concerning the Goods of some of his Citizens which after they had been taken away by the Barbarians were received by some of the Inhabitants of Pontus II. Examples Wherefore things so taken ought in honesty and conscience to be restored to their first Owners as being unjustly taken away which we see frequently done Livy having declared how the Volsci and Aequi had been conquered by Lucius Lucretius Tricipitinus saith Lib. 3. That the spoil was brought and exposed to publick view in the Field of Mars that every man might within the space of three days find out his own and take it away Lib. 10. The same Livy in another place having related the Victory got over the Volsci by the Dictator Posthumius tells us That he restored a part of the spoil to such as knew their own of another part whereof he made Portsale And elsewhere he tells us That two days were allowed for every man to come in and to lay claim to his own Goods And in another place Having recited the joyful Victory which the Samnites got over the Campanes wherein there were taken seven thousand four hundred of them Prisoners and a very great Booty from their Associates He likewise tells us That the right Owners were summoned by Proclamation to come in by a certain day to find out and receive back their own Goods The like fact he records of the Romans For the Samnites endeavouring to possess themselves of Interamna a Colony of the Romans but not able to keep it having plundered the City and depopulated the Country and driving away before them an infinite number of Men Cattel and other things fell unexpectedly into the hands of the Roman Consul in his return from Luceria who recovering the spoil and pursuing the Samnites with great Slaughter at last exposed all he had got to open view sending out his Edict That every man might come in and receive his own The same Authour speaking of the Prey taken by Cornelius Scipio at Ilippa a City in Portugal saith All which being exposed to view before the City every man had leave granted to search out and take away what was his own the rest was delivered to the Questor to make sale of which was presently done and the money divided among the Souldiers So again after the Battel fought by Titus Gracchus at Beneventum Lib. 24. The whole Prey except the Prisoners was divided among the Souldiers but the Cattel were preserved which the right Owners had liberty given them within thirty days to find out and to recover The like doth Polybius record of L. Aemilius Who having conquered the Gauls Hist l. 2. restored all the spoil to them from whom it had been taken The very same doth Plutarch Plut. Apotheg Appian Puni Appian and Diodorus testifie of Scipio the African who having taken Carthage â—â—funded their many rich Presents which the Carthaginians had taken from the Cities of Sicily and elsewhere and brought thither With whom agrees Valerius â—â—aximus concerning the same Scipio Lib. 1. c. 1. n 6. Whose humanity saith he was such that having taken Ca thage he sent Letters to all the Cities of Sicily Orat. Ver. That they might by their Ambassadours receive back all the Ornaments of their several Churches which the Carthaginians had taken from them which he desired them to take care of and to set them up in their former stations The like testimony doth Cicero give of him The Carthaginians saith he did formerly possess themselves of Himera one of the beautifullest and best adorned Towns in Sicily Scipio esteeming it an act worthy of the Roman People took care that the War being ended and Carthage taken all the ancient Ornaments taken at any time from the Sicilians should be restored unto them Lib. 37. Thus did the Rhodians restore four Ships to the Athenians which they had recovered from the Macedonians who had formerly unjustly taken them from the Athenians So likewise Peneas the Aetolian Lib. 31. as Livy records it thought it sit that all that before the War began had been the Aetolians should be restored unto them which Titus Quintius did not deny Lib. 33. had the demand been only of Cities taken in War and had not the Aetolians first broken the Laws of friendship Nay even those Goods that were at first consecrated to the Temple at Ephesus Strab. l. 13. which afterwards their Kings made their own the Romans caused to be restored to their former condition III. Whether any thing may be deducted But what if such Goods so taken shall come unto us by way of Commerce may we not charge him from whom they were taken with so much as they cost us We may as we have already said * Lib. 2. c. 10. § 9. so far forth as the recovery of the possession of things so desperately lost would probably have cost him from whom they were taken And if the charges may be required of him why may not our labour and peril also be valued as if a man should recover some precious Jewel of another mans out of the Sea by diving unto the bottom Very pertinent unto this is the Story of Abraham's return from the Conquest of the five Kings Reduxit omnes illas res He brought back all those things Gen. 13.16 Vers 20 21 22 23 24. saith Moses i. e. which the Kings had taken away Neither can we refer that Offer which the King of Sodome made unto Abraham of restoring the men and detaining the Goods to himself to any other cause than this That those Goods should be the reward of his pains and peril But that Abraham refused to take any thing to himself of the Prey was an Argument of his no less piety than magnanimity which was very well observed by Jacchiades on the fifth Chapter of Daniel Nevertheless of the things so recovered Dan. 5.17 he gave the tenth to God as being due to himself by the reason of his necessary charges and some portion thereof he was willing should be given to his Companions St Ambrose speaking of this generous fact of Abraham saith The reward which he refused from men he received from God And Sulpitius speaking
Roman Souldiers lived in their Camp at Sucro when straggling from the Camp by Night they robbed and pillaged the Countries round about that lived at Peace Adds this as the Cause That all things were done loosly and licentiously without order or military discipline Another notable place we find in Livy to this purpose where description is made of Philips march through the Territories of the Denthelatae Lib. 40. These saith Livy had been Philips Associates but yet the Macedonians pressed by want wasted their Country as if it had been the frontiers of their Enemies robbing and pillaging every where as they went first great Houses and small Villages afterwards laying waste some Towns to the no little shame of the King who from all parts heard his friends and confederates imploring in vain the Gods and him for redress Ann. 12. Pelignus we find branded by Tacitus with infamy for that he did more hurt to his Friends than to his Enemies And the Vitellian Souldiers were notorious throughout all Italy for their sloth and Thievery and for this cause were only terrible to those that entertained them And here I cannot but insert the opinion of some Divines which I conceive to be very right namely Aegid Regius de act supernat disp 31. dub 7. n. 95. That the King who pays not his Army stands obliged not to the Souldiers only but to his Subjects and Neighbours for the injuries they sustain by them who without pay cannot live but by rapine and plunder III. The duty of those that are at Peace On the other side it is the duty of those that are not concerned in the War to do nothing whereby he that foments an ill cause may be strengthened or whereby he that moves in the defence of a good cause may be hindered according to what hath been already said But where the cause is doubtful Lib. 3. c. 1. to shew themselves equally civil to both parties whether it be by suffering them to go through their Country to pass and repass with their Legions or by not relieving either being closely besieged The Corcyrenses in Thucydides tell the Athenians That it concerned them if they would be thought Neuters neither to suffer the Corinthians their Enemies nor themselves to raise forces in Attica For this the Romans objected against Philip that he had doubly violated his League with them first in wronging their Friends and again in assisting their Enemies with Men and Money The very same objections T. Quintius makes in his Treaty with Nabis Thou say'st saith Quintius that thou hast not directly violated thy league with us How often shall I convince thee that thou hast I shall not use more arguments but shall draw to this issue By what means thinkest thou may friendship be broken certainly by these two chiefly if thou persecutest our Associates as thine Enemies or joinest thy self with our Enemies against us Agathias tells us Lib. 3. Goth lib. 1. that he is an Enemy who doth that which pleaseth an Enemy And Procopius reckons him to be in the Enemies Army who supplies the Army of an Enemy with things properly appertaining to War Queen Elizabeth tells the Hansetowns complaining that their priviledges were broken by her seizing of some hulks carrying warlike provisions into Spain who had then open War with England That the right of neutrality is in such sort to be used Camden Ann. 1589. that whilst we help the one we hurt not the other And so on the contrary as Amalasuntha in Her Epistle to Justinian pleads He is a friend and companion who though he stand not in a readiness to fight yet readily and openly supplies us with all things requisite for War Of the same opinion was Demosthenes of old Qui ea facit aut machinatur quibus ego capi possim etiamsi nec feriat nec jaculum emittat hostis mihi est He that makes or contriveth such things whereby I may be taken though he neither strikes me nor throws a dart at me is mine Enemy M. Acilius tells the Epirots Livy lib. 36. who though they sent no supplies of Souldiers to Antiochus yet were accused for supplying him with money that he knew not whether he should rank them among Neuters or Enemies Lib. 37. And L. Aemilius the Praetor reproves the Teji for that they had victualled the Enemies Fleet and promised them wine adding withal that unless they did the like for them they should be held as Enemies We shall conclude with that of Augustus Caesar recorded by Plutarch Plut. Brute Pacis jus amittit Civitas quae hostem recipit That City hath lost its right to Peace that receives and protects an Enemy It would be very commodious for us therefore if such a League could be made with both parties engaged in War that with their consents we might sit still as wellwishers to both and yet that it may be lawful for us to perform the common duties of humanity to either of them So Livy Pacem Lib. 35. quod medios decet amicos optent Bello se non interponant It behoves those that are friends to both parties to endeavour to make Peace but not to engage themselves in War on either side Archidamus King of Sparta perceiving the Elians inclining to take part with the Arcadians wrote an Epistle unto them wherein were contained these words only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is good to be quiet CHAP. XVIII Concerning things privately done in a publick War I. Whether it be lawful to hurt a publick Enemy privately explained by a distinction II. What they may lawfully do against an Enemy by internal justice that make War at their own private charge i. e. as Privateers first in respect of the Enemy III. Secondly in respect of the State or City under whom they fight IV. What the Laws of Christian Charity require of them V. How a private War may be mixt with a publick VI. Vnto what he stands obliged who without order damnifies an Enemy explained with a distinction I. Whether to hurt a publick Enemy privately be lawful WHAT we have hitherto said doth mostly appertain unto such as have the supreme Authority in an Army or unto such as are to execute publick commands Now we are to see what in a publick War may privately be done whether we respect the Law of Nature Nations or the Divine Law Cicero in the first of his Offices relates that when Marcus the Son of Cato the Censor had listed himself in the Army under Pompilius the General that Legion in which he served being disbanded yet he for the delight he took in Arms continuing still in the Army Cato wrote to Pompilius desiring him in case his Son would continue there to give him a second Oath adding this reason because the former Oath being with that Legion discharged it was not lawful otherwise for his Son to fight the Enemy Whereunto the same Cicero adds the very words of Cato recited out
being granted let us now examine by whom and upon whom an invasion being made the Peace is dissolved XXIX What if we are invaded by the Associates of those that are at Peace with us There are some of opinion That if they that shall forceably invade us were but their Associates with whom we have made Peace that Peace is broken I deny not but that such a League there may be made not properly That one man should be punished for the fact of another but because that Peace seemed not to be fully and absolutely made but rather under some Condition partly potestative and partly casual And yet that such a Peace should be made unless it evidently so appear is scarce credible because it is irregular and inconsistent with the common design of those that make Peace Wherefore they that do actually invade being no ways assisted therein by others they only and not their Associates shall be judged the Peace-breakers and against these it shall be lawful to make War Paus lib. 9. Contrary unto which the Thebans did sometimes plead against the Associates of the Lacedemonians XXX What if by their Subjects and when it may be imputed unto their Prince But what if they be Subjects that make such an invasion without publick Warrant or Authority Then we ought to consider whether such a fact of private men be publickly approved of For the better understanding whereof three things are requisite as elsewhere we have declared * L 2 c. 21. § 2 eq First The knowledge of the fact secondly A power to punish thirdly A neglect in them that could and ought to have done it Their knowledge may easily be evinced if the fact be publick and declared A power to restrain or punish it is to be presumed unless it appears that they are Rebels The neglect will appear by the space of time which Cities usually take to punish Malefactors and such a neglect is equivalent to a publick Command Neither is that of Agrippa in Josephus otherwise to be understood in saying That the Parthian King had broken the Peace for suffering his Subjects to march armed against the Romans XXXI What if those Subjects fight under the command of another Prince Another Question is here usually started Whether the Case be the same if Subjects take Armes not by themselves but under the Command of others Surely the Cerites in Livy do thus excuse themselves †Lib. 7. That their Subjects took Armes without any publick Warrant or Commission from them The like defence do the Rhodians make for themselves * Aul. Gel. l. 7. c. 3. But that opinion which savours more of truth is That neither should this be permitted unless it appear by very probable Arguments that it hath been otherwise customarily done as it is sometimes used now amongst us in imitation of the ancient Aetolians amongst whom it was accounted lawful Ex omni Praeda Praedam sumere To take Armes on either side Which custom saith Polybius was of that force Lib. 17. That although they were not at War themselves but their Friends or Associates only yet it was lawful for the Aetolians without any pubâ—ick Decree of their Senate to list themselves on either side and consequently to pillage both Parties This is likewise the Testimony that Livy gives of them They suffer their Youths without any publick Order to serve in the Wars with their Associates or against them so that oft-times in two contrary Armies the Aetolians serve as Auxiliaries on both sides Thus the Aetrurians of old although they denyed aid to the Vcjentes Livy l. 5. yet if any of their Youths would serve them voluntarily they would not hinder them XXXII What if our Subjects be invaded Again the Peace is broken not only when the whole Body of a State or Kingdom but if any of its Subjects shall by force of Armes be invaded unless there be some new Cause of War given For for this Cause is every Peace made That the Subjects on both sides might live secure it being an act of the City or Commonwealth in behalf of the whole and of every of its parts yea and although there were a new cause of War yet by Peace it shall be lawful for every man to defend both himself and whatsoever is his By Armes to defend our selves against Armes saith Cassius is that Right which Nature hath given us Which Right cannot easily be presumed to be renounced amongst Equals But to revenge our own private Quarrels or to recover by force what hath been taken away is not lawful unless judgment be first denied us for this will admit of delay but that of none But if Subjects make it their continual trade of life to rob and pillage contrary to the Law of Nature so that it be apparent that what they do is contrary to the will of their Governours and that no Court of Judicature can reach to punish them such as are Pyrates Robbers or the like from these as if they were surrendred up unto us we may both recover our damages and revenge our selves of them by force of Armes But to do the like to those that are innocent for that cause is to break the Peace XXXIII If our Associates be invaded the Peace is broken Although we are not as yet invaded yet if our Associates be the Peace is broken that is if they be such as are comprehended in the Peace as hath been already proved in the Case of the Saguntines †See Book 2. Ch. 16. § 13. This the Greeks in Xenophon alledge * Graec. Hist l. 6. Omnes nos omnibus vobis juravimus We have all of us sworn this Peace to all of you Yea though those Associates do not contract for themselves but others do in their behalf it is all one in case it do sufficiently appear that they have ratified it But so long as this is uncertain they are to be held as Enemies But for the rest of Associates that are not expresly comprehended in the Peace and for our Kinsmen and Allies that are neither Subjects nor nominated the Case is otherwise Neither can an invasion of them amount to the breach of Peace But yet it will not hence follow as we have elsewhere said That it is unlawful for us in this Case to make War but that the War so undertaken is not grounded upon the breach of Peace but upon a new cause given XXXIV The second way of breaking a Peace The Peace is also broken as we have said before by doing contrary to that which is expressed in the Peace Where under the word doing we are to comprehend the not doing of what we ought to do and when we ought to do it XXXV All the Articles of Peace are alike to be observed Neither may we here admit of any distinction between the Articles of Peace as if some were of greater concernment than others For what is thought worthy to be inserted is also
last until some new declaration of the will of the Donor shall rescind it for in a dubious case that which was deemed sufficient to give a Right shall be presumed sufficient to continue it But yet not if he that granted it be disabled any longer to declare his pleasure as in case he be dead for then whatsoever depended barely upon the uncertainty of his will shall likewise cease as accidents do when the substance fails XXII A Pass implies protection A Safe-pass being granted protection is due even beyond the Territories of him that grants it because it ought to protect us against all the licence of War which of it self is not confined within the bounds of any one Princes Dominion as we have elsewhere shewed Bo. 3. ch 4 XXIII The redemption of Prisoners The redeeming of Captives is very much favoured especially among Christians it being an especial act of mercy commended unto us by the Law of God Redemptio magnum praeclarum justitiae munus were the words of Lactantius The redeeming of Prisoners is a great and singular part of justice And in case it be from Barbarians Matt. 25.36.39 De Offic. l. 2 c. 28. it is by St. Ambrose reckoned as the best and greatest liberality in the World and in that Apology he makes for himself and his Church for the breaking in pieces the consecrated Vessels thereby to redeem the Captives he affirms that Ornatus Sacramentorum est redemptio captivorum The chiefest ornament to Christian Sacraments is the redeeming of Slaves where also he hath many other such excellent sayings to the same purpose St. Aug. following the example of St. Ambrose did the like though contrary to the carnal sense of some who therein opposed him as Possidius relates The very same is recorded by Hincmarus in the life of Remigius And Adamus in his Ecclesiastical British History makes honourable mention of the like fact done by Rimbertus Archbishop of Breme And we likewise find it approved of by the sixth general Synod whose decree is recited by Gratian namely Causa 12. q. 2. That no Bishop shall presume to alienate any of the consecrated Vessels of their Churches unless for such causes as were of old approved of by the Ancient Canons of the Church as for the redeeming of Captives and the like XXIV Whether the redemption of Prisoners may by any Law be forbidden Being thus awed by so great Authorities I dare not absolutely approve of those Laws which forbid the Redemption of Slaves without a distinction such I mean as we may read of among the Romans Nulli Civitati viliores Captivi quà m nostrae There is no City so regardless of Captives as ours saith a wise Roman in open Senate For which cause Rome is called in Livy Civitas Captivis minime indulgens A City shewing little favour to Captives That Ode of Horace is very well known where he condemns the ransoming of Prisoners as an opprobrious act an example of dangerous consequence and is an execrable fact encouraged with a reward But what Aristotle blames in the Laconian is also usually blamed in the Roman Government namely that all their Polity tended only to the advancement of their Military Discipline as if in this alone consisted the safety of their Commonwealth whereas if we will but duly consider it as rational men with the allowance of some grains of compassion it would seem much better to rebate somewhat of that rigour which the licence of War permits than to leave so many of perhaps our Kinsmen and Countrymen in an everlasting slavery I cannot therefore conceive how such a Law can be reputed just unless it shall appear that such a severe course is necessary for the prevention of far greater and morally inevitable calamities which will otherwise in all humane probability fall upon us for in such a case of necessity as the Prisoners themselves ought by the rules of Charity patiently to bear their hard fortune so may this punishment be justly imposed upon them and threatned against others to deter them from the like cowardize according to what we have elsewhere written concerning any one Citizen which for the publick safety of the City may be delivered up XXV That a man may transfer his Right in a Captive True it is that to make Slaves of such as are taken in War is not agreeable to our Laws and Customes yet doubtless may that Right of exacting a ransome from him that is so taken by him that took him justly be transferred to another For by the Law of Nature things even incorporeal may also be alienated XXVI The ransome may be due to more than to one And possible it is that the same ransome may be due to several persons as in case a Prisoner being discharged by one the ransome not paid be apprehended by another and after that by another these must needs be distinct debts because they arise from distinct causes XXVII Whether an agreement for a ransome be null'd his estate or quality being not then known The ransome agreed upon shall bind the Contractors though the Prisoner be found richer than he was thought to be when the Contract was made because by that Right of Nations which is external whereby we are in this case to be judged no man can be compelled to give a greater price than what was first agreed on although undervalued if there were no fraud in the Contract as may easily be understood by that which hath been already delivered in the Chapter of Agreements * Lib. 2. c. 26. XXVIII What Goods of Captives are his that takes them From what hath been already said that Captives are not now to be made Slaves it follows That the Dominion that we have over their persons doth not give us an universal Right to all that is theirs as hath been elsewhere said * Lib. 3. c. 7. §. 4. for he that takes a Prisoner hath a Right to nothing but what he particularly lays hold on so that if the Prisoner can conceal any thing he hath from him he cannot be said to get it because he is not thereof possest Thus Paulus the Lawyer pleads against Brutus and Manlius He that takes a Field into his possession cannot be said to be possest of the treasure which he knoweth not to be there buryed for no man can be said to possess that which he knows not of Whence it will likewise follow that what the Prisoner can so conceal he may make use of for his Redemption XXIX Whether the ransome agreed on be chargeable upon the Heirs Another Question is like to arise namely whether a ransome agreed on the Prisoner dying before it be paid may be recovered from his Heir Whereunto the answer is easie for if the Captive dye in Prison doubtless the ransome is not due because the promise was made upon condition that the Prisoner should be set at liberty but he that is dead cannot be said to be at liberty But on the
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
practice hath over us to commend or discommend any thing to humane sense page 111 The Practice of the Saints the best Interpreters of Christs Precepts page 25 The six Precepts written to Adam and Noah page 110 Precepts of Christ for non-resistance in what sense page 33 Precepts of the Gospel whether contained in the Law of Nature page 16 Precepts of the second Table their Order page 379 Predictions Divine whether they confer a Right page 411 Prayers and Tears the best remedy against the Tyranny of Kings page 47 Prey the customes of the Greeks Romans French concerning them 473 474. sometimes given to the Souldiers and why 475. sometimes to several uses 477. when this custome amongst the Romans began 479. it may be disposed of by the Civil Law 478 sometimes to Subjects and Associates ibid. the tenth consecrated to God 468. approved of by God page 468 469 To Prey upon Strangers anciently lawful page 182 After Prey to hunt before the Victory be assured dangerous page 479 Present Government to obey the Duty of a good Subject page 99 Preparations extraordinary for War a just Cause of War page 383 Price of things whence page 204 By Prescription Titles to Empire may be got or lost 100 101. yet not without some presumption of dereliction page 101 Prescription enforced by open hostility not good page 492 By Prescription may be lost what is separable from Sovereignty 101. whether Kings are bound by it ibid. Presumptions sometimes Authoritative page 442 Priests not to be embroiled in War 29. exempted by the Heathens 431. to be spared in War 505. not to marry a Woman divorced a Widow or a Whâ—re page 105 Princes to abstain from War for the safety of their Subjects 418. to regard their honoâ—r more than their power or profit ibid. their lives to be favourably censured 56. not to be obeyed in things contrary to the Laws of God and Nature 427. their vices to be born with patience 56. may alienate the Peoples money for the publick Goods yet satisfaction must be given 179 180. better to forego somewhat of their Right than harrass their Country with intestine War page 99 One Prince may hold of another in Fee and yet remain free and have Supreme Power page 66 The Princes Electors consent includes all the States in Germany in any alienation page 119 The Princes of a free People may by force be restrained page 63 A Prince newly made retains the same place which the people formerly did page 143 Principles of Nature some by themselves manifest others by deduction page 385 Prisoners may be taken for the Debt of a Society 447. released upon their promise to return whether they may be compelled to do so page 567 568 Prisoners they are when carried into the Enemies Garison 470. taken by Thieves no Slaves page 451 A Prisoner released to release another he being dead is bound to pay his own ransome but not to return page 562 A Private man obliging himself to an Enemy whether he do it against the Commonwealth 566 567. should not attempt to judge what is the peoples page 66 Of Private men killing their Enemies Examples page 167 168 c. Whether for Private Christians to kill Malefactors be lawful page 373 A Private man how far what he takes he may make his own page 434 435 Private Agreements with Enemies when void and when obliging page 566 567 A Private Cause in War may be joined with a publick page 66 Private men not engaged naturally for publick Debts farther than proportions page 446 Private profit should give place to publick Pref. viii Private men must be careful of themselves but Princes of others page 495 Priviledges how interpreted 207 208. which to be largely interpreted page 560 Prizes see Reprizals Procreation begets a community in things procreated page 138 139 Prodigal gift may be received 154. but when given by Princes to the detriment of the Commonwealth they may be revoked page 180 Profit to procure to another to spend somewhat of his no Theft page 442 Profit common the ground of the Civil Law Pref. vii unnecessary no ground of War page 406 Prohibition doth not always null the thing being done that is prohibited page 112 Promises all do not derogate from Sovereign Power 45. to be binding they must be accepted 155. whether the acceptance should be made known to the Promiser ibid. Promises naturally Debts 154. made by another binds ibid. when such a Promise may be revoked page 155 A Promise made whether revocable before accepted or the Person to whom dying before accepted ibid. A Promise in it self invalid how it may be made good whether it may be revoked being by another accepted 56. made for the fact of another how far obliging ibid. not to admit of this restriction things remaining as they are unless in one Case 197. made by Oath binds not in two Cases 173. some favourable some odious some mixt page 192. Promises that more damnifie the Promiser than benefit the Promised not to be performed when only true page 198 In Promises some Cases excuse the non-performance page 199 Promises to be understood as the words then signifie if no other conjectures hinder page 191 The Promise of a King made to a third Person in behalf of his Subjects binding page 540 Promises naturally may transfer a Right 150. made through errour or misbelief not binding 566. how far naturally page 152 A Promise made not to sail or go to such a place not to take Armes not to make an escape binds page 567 Promises confirmed by the Oaths of the whole Body of the people inviolable page 539. The force of a Promise page 150 To a Promise the use of reason is required in the Promiser page 152 A bare Promise will bear no Action ibid. A Promise called by the Hebrews a Bond and why ibid. if rashly made binds not ibid seldome made but to loss ibid. Promises transferring a Right require some outward sign page 153 A Promise made out of fear how far naturally obliging 154. binds not to things unlawful ibid. To a Promise when a charge may be added page 156 A Promise made for some Cause vicious obligeth 154. charged with somewhat beneficial to another how effectual page 156 Promises naturally good sometimes null'd by the Civil Law page 154 A Promise made to acts of mercy gratitude c. oblige to our selves but cannot be exacted by Law page 151 Prophecies none not yet fulfilled can be understood but by the Spirit of Prophecy 409. that of Esay about the peaceableness of Christ's Kingdom how understood page 20 Prophecies in expounding Cautions to Princes 409. the pretence of fulfilling them no cause of War ibid. Proportions Arithmetical and Geometrical whether properly they distinguish between Justice Expletive and Attributive page 396 Propriety its beginning and growth 78 80 it came in 1. By partition 2. By Occupancy 80. it may be held by Infants Ideots and Mad-men page 89 Prosperous successes in War