but neither should this move us for this is when the things in controversie concern either the common good of both parties confederate or the private profit of him that is superior in that League As to the things of common concernment Dan. 11.22 the Assembly not sitting He that was the Prince of the League though it were an equal League did usually command his Associates as Agamemnon in the Trojan Expedition did the Graecian Princes and as afterwards the Lacedemonians did the Graecians and after them the Athenians Thucydides in that Oration made by the Corinthians saith It very well becomes the Prince of the League in private matters to deal equally but in publick to be more than ordinarily sollicitous Isocrates commending that excellent conduct of the ancient Athenians in the managing of their social Wars saith That they took care for all without intrenching upon the liberty of any And in another place he allows them to Command but not to Domineer It is well worth our observation that what the Latins express by the word Imperare to command the Greeks more modestly express by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to dispose or set in order The Athenians to whom the conduct of the War against the Persians was committed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Thucydides did order which City should contribute Money and which Ships And they that were sent from Rome into Greece Plinii ep lib. 8. c. 24. are said to be sent to give orders for the well governing of the free Cities Now if he that is the principal party in an equal League do thus it is not to be wondred at if he that in an unequal League is superior in honour and dignity do the same For the word Imperium that is Empire taken in this sence as it signifies only an Ordinance and Appointment equally conducing to the common good doth not at all imply the loss of the others liberty Livy l. 37. The Rhodians in their Oration to the Roman Senate thus bespake them The Gracians were wont to defend their Empire with their own forces But their Empire where now it is they wish that it may remain for ever They are now well contented to defend their liberties with your Arms Lib. 15. being no longer able to do it with their own So Diodorus tells us that after the taking of the Cadmean Fort by the Thebans many of the Graecian Cities met and agreed among themselves That every City in Greece should enjoy its own freedom yet the conduct of the War should be given to the Athenians And yet Dion Prusaeensis speaking of those very Athenians in the times of Philip of Macedon saith That having at that time lost their command in the War they retained only their own liberty So those people which Caesar reckoned to be under the command of the Suevians he by and by calls his Confederates But in such things as appertain to his own particular profit the request of him that is Superior in the League are usually taken for Commands not that they are so indeed but that they are in respect of their usual effects equivalent to Commands for he needs no force who knows himself to be feared Armatae sunt Regum praeces The Requests of Kings have the same power as Commands And a denyal how just soever shall be by them as ill digested as an injury It was never heard of saith Livy before Caius Posthumius that any Consul was either chargeable or burdensome to our Associates in any thing and therefore were our Magistrates supplyed abundantly with Mules Pavilions and all other Instruments of War that so they might not require them from our Associates In the mean time it sometimes so falls out The weaker Associates sometimes reduced unto subjection That if he that is superior in the League be much more potent than the rest of the Confederates he may by degrees at length usurp the Soveraignty over them especially if the League be perpetual and that he hath thereby a right to place Garrisons in any of their strong Towns as the Athenians sometimes did when they suffered themselves to be appealed unto from their Associates Hal. l. 6. Livy l. 34. which by the Lacedemonians was never done wherefore Isocrates equals the Government that the Athenians exercised in those days over their Associates with that of Kings and absolute Princes So the Latines in Livy complain against the Romans that under the specious Title of being Associates in War they were reduced into a mere Subjection which Society in Arms Plutarch in the Life of Aratus calls a Gentle Slavery Hist 4. So Festus Rufus in Tacitus concerning the Rhodians At first they lived in great freedom till afterwards the Romans gently urging them they were brought by little and little into an habit of Subjection So the Aetolians likewise complained That they had nothing left them but the bare shadow and empty name of Liberty So likewise afterwards the Achaians complain That they had indeed a League in appearance but were at length brought into a Precarious Servitude The like complaint Civilis Batavus in Tacitus makes against the same Romans That they used them not as formerly like Companions but usurped and insulted over them as mere Slaves And in another place they falsely called that peace which was indeed but a miserable Slavery Thus Eumenes also in Livy concerning the Confederates of the Rhodians that they were their Associates in Name but their Vassals indeed Thus also Magnetes in Polybius saith That Demetrias was in shew free but in effect all things were done there at the will of the Romans The Thessalians likewise were in appearance free but indeed under the dominion of the Macedonians as the same Polybius testifies Now when these things are done and so done as by patient endurance they may by mistake be said to be rightly done whereof we shall elsewhere discourse more fully then either of Companions they are made Subjects or certainly there must be a partition of the Supremacy which as I have said before may sometimes happen XXII Of such as pay Tribute They that pay any thing either in satisfaction of wrongs past or to be protected against injuries to come are by Thucydides called tributary Associates such were the Kings of the Hebrews and of their Neighbour Nations after the time of M. Anthony free though under a certain tribute Nor do I see any cause to doubt but that they that Reigned so had Supreme Power within their respective Dominions and had a full right to punish delinquents according to their own Laws Thus M. Anthony defends King Herod being accused for murthering Aristobulus That it was neither just nor right to call a King to an account for what he doth as a King for if so he could not be a King For common equity requires that they that gave him that honour should permit him the free use of that Soveraign Power which was appendent unto it So
Plutarch reciting that Saying of King Pyrrhus That he would leave his Kingdom to that Son who had the sharpest Sword saith That it was so said only to excite them to enrich his House with Blood and Rapine Whereupon he breaks out into this exclamation Adeo insociabile ferinumque est propositum plus suo habendi So wild and unsociable a thing is Covetousness Aristotle seems exceedingly to blame them who though they are not willing to admit of any King or Governor over themselves but him that hath the true Right yet regard neither Right nor Wrong in the Government of Foreigners The Lacedaemonians saith Plutarch place the greatest part of Honesty in their Country's profit Jus aliud nec norunt Plut. Agâ—s nec discunt quam unde Spartam putant posse augeri They will neither know or learn any other Law than how to enlarge their Territories The like Character do the Athenians give of them in Thucydides That among themselves and to their own Civil Laws The Lacedaemonians prefer publick profit before honesty they were very just but as to Strangers they esteemed exery thing honest that was pleasant and every thing just that was profitable But yet when one of the Spartan Kings pronounced that Common-wealth happy Which Pompey reproves which was bounded by the Sword and the Spear Pompey correcting him said Yea rather that Common-wealth is truly happy that is on every side bounded with Justice For which he might also have produced the Authority of another Spartan King who preferred Justice even before Military Prowess Upon this very ground because all Martial Power ought to be regulated by Justice for in case all men were just there would be no need of valour Justice preferred before fortitude Even Fortitude it self is by the Stoicks thus defined to be Valour contending for Justice When Agesilaus in Plutarch heard the Persian King stiled Great He demanded Quomodo me major nisi sit justior How is he greater than my self unless he be more just Themistius in his Oration that he made to the Emperor Valens elegantly discoursing how Kings should be qualified And to be extended to all Nations if Wisdom were to chuse them saith Not such as should think themselves entrusted with the care of one single Nation only but of all mankind neither should he profess himself to be a Friend to the Macedonians only or to the Romans but to all Men and all Nations whatsoever As M. Antoninus sometimes said of himself Civitas Patria mihi est ut Antonino Roma ut Homini Mundus As I am Antoninus De non esu Animal l. 3. Rome is my Country as I am a Man the World So also Porphyry He that is guided by reason carries himself inoffensively towards his own Subjects yea and towards Strangers yea and towards all men See Cyril against Julian l. 6. Quanto ratione praestans tanto Divinior The more he partakes of Reason the more he partakes of the Divine Nature The very Name of Minos was odious to Posterity for no other reason but because he extended his Justice no farther than his Dominions Each Country groaned under Minos Yoke That even in War some Laws are in force Now what some have fansied namely That Inter Arma cessant Leges In War all Laws lye asleep is so far from truth that no War ought to be undertaken but for the prosecution of a mans Right nor any that is undertaken managed beyond the bounds of Justice and Faithfulness It was very well said of Demosthenes That War might justly be made against those who cannot be compelled to do us right in a judicial way Now against such as are sensible of their own weakness Judgments are forceable enough and so no need of War But against such as are or think themselves of equal strength if they will not do right War may be justly undertaken which also that they may be altogether righteous must be managed with as much Conscience as judgments are usually passed Admit then that Laws may sleep in the midst of Wars yet they must be those only that are Civil and Judicial But such only as are Civil and Judiciaâ— such I mean as are proper to peace but not such as are perpetual and fitted unto all times It was very well said therefore by Dion Prusaeensis That written Laws are of no force amongst Enemies but such as are unwritten That is Such as Nature her self dictates or the consent of Nations constitutes are in force even in the midst of Arms. There are Laws in the midst of Arms. When one asked King Alphonsus Whether he thought himself most indebted to Books or Arms he readily answered That he was beholding to his Books both for the knowledg of his Arms and also for his knowledge of the Laws of Arms. So also Plutarch Sunt apud bonos viros quaedam belli jura Amongst good men there are some Laws to be observed even in War Neither are we so to prosecute Victory as to enrich our selves by base and dishonest gain Eas res puro pioque duello quaerendas censeo This appears by that ancient form of the Romans These things I judge ought to be acquired by a just and pious War These very ancient Romans as Varro notes were very slow in making War and not very licentious when they did make it because they approved of no War but what was pious Camillus was wont to say That War was to be waged with no less Justice than Valour The like Testimony doth Scipio the African give of the People of Rome in his time namely that they always began and finished their Wars justly And another Author tells us That there are Laws for War as well as for Peace A third admires Fabritius for a gallant Soldier but principally for that which in War was very rarely found namely his Innocence as believing that some things usually done against an Enemy were impious What great power and efficacy the justness of a Cause hath Historians do every where declare The goodness of a Cause is of great efficacy in war Proverbial Sayings whilst they ofttimes ascribe the Victory to this as to its principal cause From whence arise these Proverbial Sayings The Courage of Soldiers do either rise or fall according to the equity of their Cause He seldom returns in safety that willingly engageth himself in an unjust War A good Cause is never unattended with hopes Thus Pompey in Appian cheers up the Spirits of his Soldiers We saith he must place all our confidence in the Gods and in the goodness of our Cause as having entred into this War upon honest and just grounds for the defence of the Common-wealth Thus likewise doth Cassius encourage his Soldiers by telling them That the greatest hopes were always where there was the best Cause The like we may read in Josephus Antiq. hist lib. 15. Abs quo stat Jus ab eo
and not to declare that the other is not free By superiour we understand not in power for he had said before that a free Nation should not be subject to the power of another but in Authority and Dignity which the words following by a very fit Simile do clearly illustrate Some Nations are equal in liberty though not in dignity with others For as we know our Clients to be free though neither in Dignity nor in Authority nor in all Right our equals so they that are obliged faithfully to uphold our Majesty are notwithstanding to be understood our equals in liberty Clients are free though under the defence of their Patrons or Advocates so is an Inferiour people free though in League with a people superiour unto them in dignity For they may be under their protection though not under their jurisdiction as Sylla speaks in Appian An example we have in the Dilimnites Ap. Mithridat who as Agathias tells us were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Free to live by their own Lawâ— though they served the Persian in his Wars This was the design of the Empress Irene so to divide the Empire among the Sons of her Husband that the younger Sons should be Inferiour to the Eldest in dignity but otherwise they should be Independent and Absolute in Power De Off. l. 2. Cicero speaking of that Golden Age of the Roman Empire saith Patrocinium Sociorum penes eos esse non Imperium The Romans gave protection to their Friends and Allies but claimed no dominion over them Liv. l. 26. With whom agrees that of Scipio Africanus The People of Rome had rather oblige their Neighbours unto them by Courtesies than by Fear and to win foreign Nations unto them by Faith and Friendship than to subject them to an ungrateful bondage And what Strabo reports of the Lacedaemonians after the arrival of the Romans in Greece saying They enjoyed their own Freedom contributing nothing unto the Romans but the mutual offices of love and friendship As private Protection takes not away personal Liberty Protection so neither doth publick take away Civil which without Soveraign Power cannot consist And therefore Livy wisely opposeth to be under protection unto to be under Jurisdiction Augustus Caesar as Josephus relates threatned Syllaeus King of Arabia that if he abstained not from injuring his neighbours he would quickly make him of a Friend a Subject which was the condition of the Kings of Armenia who being under the Roman â—urisdiction retained only the Title of Kings but not the Power As did also the Kings of Cyprus and some others though in name Kings yet were they Subjects to the Persian Monarchy as Diodorus calls them But here it may be objected what Proculus adds Lib. 16. Four kinds of differences usually arise between Confederates But some who belong to our Confederate Cities are with us found guilty whom being condemned we may punish But that we may understand these words we must know that there are four kinds of differences that usually arise among Confederates As in the first place If the Subjects of the King or State under protection are said to have done any thing against the League Secondly If the King or States themselves are accused Thirdly If the Associates that are under the protection of the same King do quarrel one with another Lastly If Subjects complain of Injuries done them by those under whose Jurisdiction they are If the Controversies be of the first kind the King or State are obliged either to punish or to deliver up the Offender to the person injured And this ought to be done not only between unequal Confederates but between equals even between such as are not linked together by any League as shall be shewed anon Nay farther He is obliged to endeavour that satisfaction be made to the injured person which in Rome was called the Recuperators office For the Law saith Aelius Gallus in Festus doth determine between King and People Nations and Foreign Cities how things by the Recuperator may be restored and how they may be received and how private mens cases may be prosecuted in each Nation For one of the Confederates can have no right directly to apprehend or to punish the Subjects of the other Confederate and therefore Decius Magius a Campane being apprehended and bound by Hannibal and so conveyed to Cyrene and from thence sent to Alexandria pleaded that he was bound by Hannibal contrary to the Articles of the League whereupon he was presently set at liberty As to the second kind of Controversies One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League and in case of refusal to punish him but neither is this peculiar to a League that is unequal but may be done in one that is equal For it is enough to justifie any man for seeking a revenge against him that hath wronged him that he is not subject unto him as shall be proved anon wherefore this is also in force even among such people as are not confederated The third sort of Controversies are amongst such as are equally confederated and these are usually referred to a Dyet or Convention of the States associated yet not therein concerned For so the Greeks the Latins and the Germans were wont to do or otherwise referred to Arbiters or even to the Prince of the League as to a common Arbiter So in an unequal League it is usually agreed that the things in controversie shall be discust in that Nation which is superior in the League wherefore neither doth this argue a superiority in power for even Kings themselves refuse not to have their own causes sometimes tryed before such Judges as even themselves have constituted But of the last kind of Controversies Associates have no right at all to judge and therefore when Herod did vehemently accuse his two Sons before Augustus Caesar for conspiring against his life they took it as a favour he had done them Jos Ant. lib. 16. c. 7 8. Poteras de nobis Supplicium sumere tuo jure tum qua pater turn qua Rex Thou mightest have inflicted what punishment upon us thou wouldst by thine own Right both as a Father and as a King And when Hannibal was accused at Rome by some Carthaginians for stirring up Sedition amongst the Citizens Val. Max. lib. 4. c. 1. Pol. lib. 1. c. 9. Scipio told the Senate That it did not become them to intermeddle with that which properly belonged to the City of Carthage And herein it is that Aristotle puts a difference between a Society and a City for it concerns confederate Societies to take care that no injuries be committed against them but not that the Citizens of any one of the Confederates do not injure one another But here again it may be objected That in unequal Leagues he that is superior in the League is sometimes said to command and he that is inferior to obey
confident that the same Incensed Deities who have constrained me to make full restitution of whatsoever we have formerly taken away from the Romans will also plague the Romans for despising the expiation we offer for the breach of so Insolent a League And by and by after What more O ye Romans do I owe to you or to your League or to the Gods that are the Impartial Arbiters of Leagues To whom shall I appeal Whom will ye accept of to judge of the Causes of your Anger and of the measures of my sufferings I refuse no people no person So when the Thebans had offered to the Lacedaemonians all the satisfaction that in equity they could require and were by them rejected Aristides told them That the Justness of the War was thereby translated from the Lacedaemonians to the Thebans The like we read of the Switzers who in revenge for a Load of Sheep-skins taken from a Merchant of theirs by the Earl of Romont having spoiled his Countrey did afterwards being threatned by the Duke of Burgundy offer to restore all they had taken from the said Earl and to give what further satisfaction the said Duke should require The refusal of which offer cost the Duke his life and the loss of almost all his Jewels and Treasure as Comines testifies Lib. 5. ch 1. CHAP. II. Of such things wherein Men have a Right in Common I. The division of that which we call Ours II. The Rise and Progress of Propriety III. That some things will not admit of Propriety as the Sea taken universally or as to its principal parts and why IV. Places â—ot Inhabited are the first occupiers unless in the generality it belong to some one people V. That Beasts Birds and Fish are the first occupiers unless by some Law restrained VI. That there remains a Right in Common to the use of things properly our own in times of necessity and whence this ariseth VII But not in case that necessity be otherwise avoidable VIII Nor if there be the like necessity in the possessour IX The things so used to be restored as soon as we are able X. An Example of this Right in War XI In things properly ours there may be a Common Right if those things bring profit unto others without any detriment to our selves XII Hence ariseth a Right in Common to a running Water which if not used is lost XIII That there is a Right to pass either by Land or through Rivers This explained XIV Whether Taxes or Tolls may be imposed on Merchandises carried from place to place XV. That there is a Right to stay or sojourn in any place for a while XVI That there is a Right of habitation appertaining to such as are banished their own Countrey submitting to the present Government XVII A Right to inhabit desart places how to be understood XVIII A Right to such acts or things without which men cannot conveniently live XIX A Right to buy things necessary XX. But not to sell their Commodities XXI A Right to contract Marriages Explained XXII A Right to do such things as are permitted to all strangers promiscuously XXIII Which is to be understood of such things as are permitted by the Law of Nature but not of such things as are permitted out of Grace and Favour only XXIV Whether it be lawful for one people to contract with another That they shall not sell their Commodities to any other Nations but themselves only I. The division of what we call Ours THat War may be undertaken for Injuries not done we have seen proved Now it follows that according to the order we proposed we discourse of the Second Branch of the causes justifying a War namely for Injuries actually done And herein first of Injuries done against that which is ours Now of that which is ours Some things are ours by a Right common with all Mankind and some things are ours in our own particular Right We shall begin with that which is ours in common with others This Common Right is either directly in some Corporeal thing or to some Acts. Things Corporeal are either such as do admit of no propriety or such as properly belong to some persons Of things whereof there is as yet no propriety some there are that cannot be impropriated and some there are that may Now that this may be rightly understood we must search into the rise or beginning of propriety which Lawyers call Dominion II. The original and growth of Propriety Almighty God as soon as he had created the World did immediately confer a Right generally to all mankind in things of this Inferiour Nature And so again when he had renewed the world after the Flood as may be seen Gen. 1.29 30. and Gen. 9.2 Gen. 1.29 30.9.2 All things at first saith Justin were promiscuously common and undivided to all and as it were one intire Patrimony bequeathed unto all Whence it came to pass that every man did catch whatsoever he would to his own use and consume what could be consumed And the free exercise of this Universal Right was then instead of Propriety For whatsoever any man did thus catch unto himself no man could take from him without injury This may be very fitly illustrated by that Simile which we find in Cicero concerning a Theatre De sâ—â—ibus l. 3. which we know is a publick place and common to all that come yet may that particular place which I possess be rightly called mine There are Seats that are common to all Roman Knights but that amongst them is mine own De benefic l. 7. c. 12. saith Seneca which I actually possess Which state of things might very well have lasted had men either persisted in the same inoffensive simplicity or could they have embraced each other with the same mutual endearments of charity An experiment of the former we have in some people of America A Community of all things who have continued in that happy Communion for many ages with admirable simplicity And for those that lived in the like Communion through Charity we have the like precedents in the Esseni and in the Primitive Christians at Jerusalem and their followers the Pythagoreans Gell. l. 1. c. 9. ad finem Porphyr Diog. Laert. and now also in not a few who lead lives purely Monastical The nakedness wherein our first Parents were created did sufficiently evidence their simplicity which consisted rather in their Ignorance of Vice than in their knowledge of Vertue As Trogus testifies of the Scythian The men of the first age saith Tacitus were free from inordinate affections The Simplicity of the first age wherein it consisted Ep. 90. untainted with wickedness clear from any thing that might occasion reproach and consequently without restraint or punishment Thus Seneca also testifies of them They were saith he ignorantly Innocent And afterwards speaking of the four Cardinal vertues he adds Some resemblances of all these there were in that plain and simple life they
two or more have power to determine Yea though their judgment be not altogether so righteous as it might be yet Eo quod major pars decrevit stetur Curtius l. 10. Because the major part hath decreed it it must stand Whereas on the contrary In paucis jam deficiente caterva Nec persona sita est patriae nec curia constat The Assembly being dissolv'd in two or three No face of Country nor of Court can be And by and by after Prudentius Infirma minoris Vox cedat numeri parvaque in parte quiescat Of the same Opinion was Xenophon Who would have all things done according to the vote of the major part of the Suffragans And in this sence doth as well the Chaldee Paraphrast as the Jewish Rabbins understand that of Moses Exod. 23.2 Neither shalt thou speak in a cause to decline after many to wrest Judgment which the said Paraphrast renders thus Neither shalt thou cease to speak thine own mind in judgment Juxta Sententiam plurimorum perfice judicium According to the opinion of the most give Judgment XVIII Which part carries the sentence when the Votes are equal But if the Sentences be equally ballanced nothing can be done because there is not any thing of moment sufficient to cast the scale In which case if the Sentences be equal the accused shall be held innocent And this the Greeks call the suffrage of Minerva as Aeschylus and Euripides inform us So where the Judges are equally divided in opinion Possessor rem tenet The Right goes with the Possession saith Aristotle And Seneca in one of his Controversies saith the same One Judge condemns and another absolves Orestes Electra Arist Probl. Sect. 29. Non est invidiosa potestas quae misericordia vincit Sen. Where the Judges are equal and their Judgment so unequal the milder Sentence must prevail Neither is there any reason saith Seneca that any man should envy that Power which overcomes only by shewing mercy Nay the Jews go yet further For if the condemning Part had but one single Vote more than the absolving part it stood for nothing as may be collected from the Chaldee Paraphrast upon that place of Exodus before cited and by others for so also in all Logical Collections the Inference follows that part which is least grievous XIX Where the question is not agreed unto what is to be conjoyned and what divided But here another Question ariseth namely when and what sentences are to be conjoyned and what to be divided Wherein if we consider the Law of Nature only that is if no Law or Covenant have otherwise determined we ought to distinguish between such Opinions or Sentences as are altogether inconsistent and differ in the whole and such as differ only in part that so these latter may conjoyn in that wherein they agree though the former cannot And therefore where the Question to be argued wraps up many things together it is to be divided and discuss'd in parts Thus Seneca when another man delivers his opinion in a Question whereunto I consent in part only I desire him to divide that wherein I agree with him from that wherein I disagree and I shall then joyn with him Where the Question is not assented unto it is to be disputed in parts As for example they that adjudge a delinquent to pay twenty pounds and they that adjudge him to pay but ten pounds may unite in the ten against them that would acquit him But they that censure a Malefactor to death and they that censure him to banishment cannot be reconciled because death and banishment are inconsistent neither can that part that would absolve him joyn with those that would banish him For though they both agree that he deserves not death yet is not that exprest in the sentence but deducible from it by consequence Lib. 8. Ep. ad Aristonem For he that would banish doth not absolve It was therefore well observed by Pliny that when there shall happen to be such a diversity of opinions in a free Assembly concerning one and the same thing that they cannot be included in any one question they must divide the matter into several and distinct questions for it avails but little that two are displeased with the third if in nothing they agree between themselves Polybius justly taxeth Posthumius the Praetor with fraud when in demanding the Judgment of the Senate concerning the Graecian Captives he joyns together those that condemned them and those that would have had them detained as Prisoners for a while only against those that would have released them Such a question as this we shall find in Gellius Lib. 9. c. 15. Declam 365. and another in Quintilian where it being agreed that of seven Judges what punishment the major part should think fit to decree the Malefactor should suffer two adjudged him to Banishment and two to be branded with Infamy and three to Death And when the Person so adjudged pleaded that four of his Judges agreed that he should live and three only that he should dye The Accuser desired him to recite the Judgment of the four And when he began to say Two sentenced me to Banishment and two to Ignominy he was presently answered by his Adversary That of two Sentences he made but one and that that number which being united had preserved him being divided destroyed him and how can they be united that so expresly divide themselves XX. The Right of the Absent remains with the Present Whereunto also we may add this That in all Assemblies the Right of those that either by absence or any other means are hindred from making use of their Right is devolved on those that are present yea sometimes even to one single person whose sole act shall be reputed the act of the whole So saith Seneca Think thy self to be the common servant De Coner l. 3. yet shalt thou serve that Master that is present Yet herein also as well as in that general rule of plurality of Votes humane Laws do make some exceptions as namely when they require that so many shall be present to make a Court as in our House of Commons or that the Persons absent may give their Vote by their Proxies as in our House of Peers XXI What order is to be used among persons equal The order of Nature is this that amongst equals he should be esteemed the first that first entred into that Society For so we find it is among Brethren the Eldest always precedes the rest and after him the second c. Notwithstanding all other qualifications All Brothers are equal saith Aristotle it is only their Age that makes them unequal Theodosius and Valens in designing the order that should be observed among Consuls say Of those who are in the same degree of honour who should precede but they that were first thought worthy of that honour And the ancient custom among Christian Kings and States was
if the Punishment be so Now what we have before said concerning the force and efficacy of the Civil Law were not amiss to be here repeated See B. 3. c. 19. §. 4. But what force or strength Oaths do add unto Promises to confirm them shall be shewed anon VIII What is promised ought to be in the power of the Promiser Again That a Promise may be strong and binding it is necessary That the thing promised either now is or hereafter may be in the power of the Promiser Wherefore in the first place we may be sure That no Promise can bind us to that which is in it self unlawful For Id possumus quod jure possumus That only we can do which we can do which we can lawfully do All promises receive their vigor from his Right that makes them beyond which they are of no force Agesilaus being once challenged upon his promise answered Bene si justum sit seu minus dixi tantum non promisi Ye do well to urge it if what I promised were just but if not I only said it but did not promise it But if the thing promised be not now in our power but may be then doth the strength of that Promise hang in suspence because the Promise was but conditional namely if at any time it shall lye in my power But if that condition whereby the thing may be in our power be also in our power then is he that made the Promise obliged to do whatsoever is morally fit that his Promise may be fulfilled But the Civil Law nulls many Promises of this kind also for profit which the Law of Nature would bind us unto As when a man or woman shall promise to marry another hereafter being now already married And not a few other Promises made by Minors and Children whilest under their Parents tuition XI Whether a Promise made to do an act simply evil obligeth But here it may be demanded Whether a Promise for the performance of an act in it self vicious doth naturally oblige As if a man should Promise a Reward to him that should kill another That this is a wicked Promise doth sufficiently appear by this That it was made to excite a man to do a wicked Act. But yet not every thing that is viciously done doth lose the effect of a just Right as is manifest in things prodigally given wherein notwithstanding there is this difference That so soon as the gift is prodigally given Things prodigally given may lawfully be retained the obliquity ceaseth For the gift contracts no soil from the giver and therefore it may without sin be possest by those to whom it is given But in Promises made to a vicious end the vice remains so long till the crime be perpetrated For so long the very fulfilling of the Promise being an incentive to vice must needs be sinful which begins to cease when the crime is committed Whence we may conclude that the force and efficacy of such a Promise until that time did hang in suspence as I said before concerning the thing promised being not in our own power But the crime being done then the obligation arising from that promise breaks sorth which from the beginning was not intrinsically wanting but hindred by a vice that was accidental An example hereof we have in Judah the Son of Jacob Judah's Promise to Thamar Gen. 38. Val. Max. l. 8. lib. 2. n. 2. Ch. 12. §. 9. 10 11. who performed his Promise unto Thamar whom he dealt with as with an Harlot by sending her the reward which by the Law of Nature then in force was due unto her Though it be otherwise by the Civil Law as may appear by the sentence which C. Aquilius past in the like case But in case that Promise were occasioned by the fraud or injustice of the person to whom it was made or if it were made upon any unequal terms or conditions how it is to be rectified is another Question whereof we shall speak anon X. Concerning a Promise of that which was formerly due See Book 2. c. 6. §. 2. But when any Promise is made for some cause formerly due it is not thereby the less due if we look unto Natural Right according to what we have already said concerning our acceptance of that which is anothers Because Promises are Naturally debts though there be no cause preceding but here also if any damage accrue by extortion or if there be any inequality in the agreement made that damage is to be repaired according to such Rules as shall be set down anon XI The manner of a firm Promise made by our selves Now as to what appertains to the manner of promising it requires as I said before concerning the Alienation of Dominion some external Act or Sign sufficient to testifie the consent of the Will which may be done sometimes by a beck or nod but is usually done either by voice or writing XII Of the like made by others But we may also be bound up by another mans act if it appear that we have deputed and empowred him to act for us either as our Instrument in that particular business or under some general notion or qualification And it may likewise happen that where the Commission is to act in general he that is so commissionated may oblige us by acting contrary to his private Instructions For here are two distinct Acts of the Will the one whereby we oblige our selves to confirm and ratifie whatsoever our Agent shall do in such a business Of Ambassadours exceeding their private Commands the other whereby we oblige our said Agent that he shall not act beyond our secret Instructions This we observe in relation to those things which Ambassadours do Promise for their Masters by vertue of their Instructions or Letters of Credence but exceeding their secret Commands XIII The obligatitions of Masters of Ships and Factors how far they naturally extend From hence also we may conclude That such Actions as are brought against Masters of Ships and Factors who have the charge of goods transported by Sea into foreign parts which are not so much Actions as qualities of Actions are grounded upon the very Law of Nature And here we cannot but note the error of the Roman Laws which by the fact of the Master do bind every one of the Mariners for and in the whole which is both repugnant to Natural Equity which seems to be satisfied if every Mariner be bound for what concerns himself And also damagable to the Common-wealth for men would thereby be deterred from Navigating the Seas fearing to be so strictly and as it were infinitely bound by the fact of the Master Insomuch that in Holland a Countrey of late famous for Merchandizing this Roman Law both of old was and now is of no force Nay rather on the contrary it is decreed That the Master and Mariners in general shall each of them be bound no farther than to the value of
notwithstanding is not he that negotiates the publick affairs to be strictly tyed up to this rule as some hold so that his act shall then only be held firm and ratified when the Common-wealth is meliorated by it For to reduce a Prince to such straits would be dangerous to the Commonwealth Neither is it likely that when the people transferr'd the Government upon him they intended so to retain him But what the Roman Emperors answered in the cause of their City That what was transferred by the Magistrate ☜ should be of force in doubtful matters but not when that which is clearly due to the City is rashly given away or forgiven the same answer may and ought to be given to this question in the behalf of the whole body of the people observing a due proportion For as it is not every Law that obligeth Subjects for besides those which command things unlawful some Laws are evidently absurd and foolish as that Law of Cabades King of Persia recorded by Procopius and Agathias Neither is it congruous to reason as Peter Ambassador of Justine the Second told Cosroes King of Persia treating about some things which Justinian seemed long before to promise to the Saracens That a Common-wealth should forever be condemned for one simple Law or custome introduced or enacted by one man although an Emperor So also the Contracts of Princes do bind their Subjects if they have any probable reason to justifie them which in doubtful cases ought to be presumed in respect of the wisdom and authority of those that made them And it is much safer thus to distinguish of them than as some do by the greater or lesser damage that ariseth to the Commonwealth by them For we are not so much to regard the event of such Contracts as the reasons whereupon they were grounded which if probable the people shall be bound by them if by any accident they shall begin to a be free people and so shall they that are Successors as being for the time the heads of the people For if the people being free shall make any Contract or agreement their Kings that shall afterwards Reign shall thereby be bound although he receive the Kingdom in the fullest Right The Emperor Titus is highly commended for this That he would not endure to be sollicited to confirm any thing that his Predecessors had granted thinking it but reasonable That if he expected that his Successors should be bound by his acts he also should be obliged by the acts of their Predecessors Suet. c. 8. The Grants of good Princes shall bind their Successours Whereas Tiberius and they that succeeded him did never hold the Grants of his Predecessors to be good unless they themselves had granted the same to the same persons That excellent Emperor Nerva following the example of Titus in that Edict recorded by Pliny speaks thus Let not any man conceive That what he hath got from any of my Predecessors either privately or publickly shall by me be so far rescinded as that they shall be indebted to me though but to confirm it neither shall they need any mans Intercession to obtain it But when Tacitus had declared how Vitellius had torn the Empire in pieces without any regard had to Posterity the Common people flocking about him But not of prodigal Princes and courting him for his profuse gifts and some others hoping for a good purchase tempting him with ready money at length adds this Apud sapientes cassa habebantur qua neque dari neque accipi salva republica poterant That such gifts were always by wise men accounted void which could neither be given nor received without endangering the Commonwealth Which very saying of Tacitus is much commended by Mariana and applyed to the vast and unbounded Beneficence of Frederick King of Naples who gave away as Philip de Comines relates not his own Crown Lands only but other mens also according as his fancy led him The same may very fitly be applyed to the question in hand and therefore Galba made no scruple of revoking the Grants of Nero even from those that had purchased them leaving the Tenth part only unto them as Tacitus and Plutarch testifie So did Basilius the Macedonian Emperor recover all that the Emperor Michael had given away Whereof Zonaras thus That it was unanimously agreed that They that had received moneys without any probable cause should restore it some wholly and others one half The like did Charles the Eighth of France revoke all that Lewis the Eleventh had prodigally given not excepting his Donatives to the Church As Commineus testifies Comines lib. 9. This also may here be added if any such accident fall out wherein a Contract made by a King is discovered to be not only damagable but pernitious to the Commonwealth so that at the time when the said Contract was so made had it been applyed to that case it had been judged unlawful and unjust Then may that Contract be not so much revoked as declared to be no longer binding as if made with condition of being void in that case without which condition it could not have been justly made Thus did that wise Queen Elizabeth revoke some priviledges granted to the Hans-Towns See Camdens Elizab. Anno. 1595 1597. in Controversia Hansiatica by her Predecessors when they began to exact them as due by rigour of Law and not as granted them by the meer favour of the Prince Alledging that priviledges granted by Princes to their subjects much more to strangers might according to the times for the benefit of the Commonwealth and other causes be lawfully suspended yea revoked and made void And when the same Queen had drawn a dangerous War upon her self for assisting the Hollanders who refused to repay her those vast sums expended for their ten years defence upon pretence that by her Contract with them that money was not due till the War was ended and that till then she could not recede from her contract She prudently replyed That all Contracts between Princes were to be understood to admit of an interpretation of sincere fidelity Neither is any Prince bound by his Contracts when for just cause that Contract turneth to the publick Detriment That the peace is not broken though a Prince recede from his Contract when it is done by an accident of a new case or when it comes to a new case which had it been thought on had otherwise been provided against Lastly That a Prince is not bound by any Contract though solemnly made if it tend to the Detriment of the Commonwealth For that a Prince is more strongly bound to the Commonwealth Vide Camd. Eliz. 1595 1597. than to his own Promise as Mr. Camden records And what is here said of Contracts is true also in the Alienation of the peoples money and of any other things which the King hath by Law a power to alienate for the publick good For herein also is this
as they are a Nation and all Kings as they are Kings should sympathize with their Neighbour Nations and Kings that are oppressed Neither is every person more bound to defend his own members than Princes are in obedience to Christ to defend each other with that power which he hath given them But this duty neither Kings nor People can well perform whilst Christendom is invaded by the Enemies of Christ unless they do mutually assist each other which can never be done successfully unless they strongly confederate together for that end And such a General League between Christian Princes hath heretofore been made whereof the Roman Emperor was by general consent chosen General whereby all Christians were obliged to contribute either Men or Mony according to their power as to the defence of Religion which is or ought to be the common cause for the neglect whereof I cannot see how any people can plead excuse unless it be such as are engaged in an inevitable War or afflicted with some other general calamity at home XIII If our Confederates are ingaged in several Wars which we ought to assist Another Question doth often arise namely in case two Nations are engaged in War one against the other and both are our Confederates whether of them we are bound to help Where in the first place we must remember what we have already said that ad Bella injusta nulla est obligatio No League can bind us to a War that is unjust He therefore is to be preferred that hath the juster cause if the War be against a stranger Prince yea if it be against another Confederate The words of him that swears Fealty to another are these Si scivero velle te aliquem juste offendere inde generaliter aut specialiter fuero requisitus meum tibi sicut potero praestabo auxilium If I shall understand See Book 3. chap. 25. §. 4. that thou wilt make an offensive War against any man upon a just ground and that I am either generally or specially required to give thee mine assistance I shall do it to my utmost power Thus Demosthenes in his Oration concerning Megalopolis The Athenians are bound by their League to aid the Messenians their Confederates against the Lacedaemonians their Confederates if the Lacedaemonians were the first Aggressors which holds true unless in our Articles it shall be expresly forbidden to send out any aid against such a Confederate Polyb. l. 6. In that Agreement which Hannibal made with the Macedonians there is this Clause Hostes erimus hostium exceptis Regibus Civitatibus c. Quibuscum foedus nobis amicitia est Enemies we shall be to thine Enemies except only such as are in League and Amity with us If two Nations be at War and both our Confederates and neither of them have a just cause which may so happen we are to stand Neuters and to assist neither So Aristides If either of our Confederates had required our aid against strangers it had been readily granted but if against one another we desire to stand Neuters Leuctrica If both our Confederates be engaged in a just War against strangers and both send for Aid if we are able we must send to both either Men or Money But if a Prince shall be required by both to aid them in his own person having so promised then because his person cannot be divided it is but reasonable that he should prefer him with whom he hath contracted the ancienter League As the Epirots answered the Lacedaemonians in Polybius The like answer was given to the Campanes by the Roman Consuls In contracting friends it is fit that we take care that the new do not supplant the old The Ancienter the Leagues are the more Inviolable Thus Ptolomy answered the Athenians in the like case Amicis ferenda Auxilia contra hostes non contra amicos We are to aid our Friends against Enemies but not against our Friends Which also will admit of this exception unless the latter League do bind us farther than our bare promise for it may include a translation of the Government and imply somewhat of subjection And thus we say that in selling of Goods the first sale is the best unless the latter shall also transfer the property and dominion So Livy of the Nepesines That the faith given upon their surrender bound them faster Deditionis quam societatis fides sanctior than that given by former Leagues as to their Associates Some there are that do more nicely distinguish between these But what I have said I take to draw nearest as to simplicity so also to truth XIV When renewed A League for a certain time prefixt is not easily presumed to be renewed through silence unless such acts intervene which cannot otherwise be understood for a new obligation is not easily to be presumed XV. The League is void if either party break it If either party violate the League the other party is freed because each Article of the League hath the force and vertue of a Condition Thus Thucydides determines it They saith he are not the first breakers of the League who being deserted seek for aid to others but they that perform not by their deeds what they have promised to do upon their Oaths And in another place Si vel tantillum ex dictis pars alterutra transgrederetur rupta sunt pacta If either party shall transgress the Articles they have sworn unto never so little the League is broken This also is true unless it be otherwise provided by the League as it usually is lest what is seriously debated and solemnly sworn should be adjudged to be broken upon every rash offence XVI How far Generals engaging are bound if the Prince refuse Sponsions are such promises or undertakings as Generals make without the consent of their Soveraign for the performance whereof they engage themselves or give hostages till it be confirmed by their Prince or Senate The subject matters whereof are as diverse as of Leagues They differ from Leagues in the dignity of those that make them Concerning these Engagements two Doubts usually arise The first is If the matter engaged for be refused by the King or State how far forth are the parties engaged bound Whether to make up what the King or State shall not think fit to grant or to restore all things to the same state and condition as they were in before such agreement was made or to deliver up their own bodies and the hostages to the Will of the Enemy The first whereof is most agreeable to the Civil Law of the Romans The second to Equity and Reason which we find urged by the Tribunes of the people in the Caudine Controversie The third is most approved of by Use and Custome as appears by the examples of the two notable Sponsions made at Caudis and Numantia But by no means may we admit The Sponsions made at Caudis and Numantia that either the King or
qualemcunque Mortuum terra condi fas sit Because it was always thought an Act of Piety to inter all dead Bodies whosesoever they were Wherefore according to the exposition of the Hebrew Doctors The High Priest though otherwise forbidden to be present at any Funeral yet notwithstanding if a man were found dead and unburied he was even himself commanded to bury him The very same was enjoined by the Pontificial Law among the Romans as Servius notes Christians have so high an esteem of this duty that for this cause as well as for the relief of the Poor and the redemption of Captives they have thought it lawful to melt down their Consecrated Plate and to sell it There are also Examples that may be brought for the contrary opinion but such as are by the Judgement of the most and best men condemned Hunc oro defende Furorem saith Virgil Which Servius thus expounds O keep me from this rage I pray i. e. from that Malice which rageth even after Death The like we may read of in Claudian Hominemque cruentus Exuit teneum caesis invidit arenam Bloody are they wanting humanity Who to the slain a little dust deny Wherewith agrees that of Diodorus Siculus Ferinum est bellum quod cum mortuis qui ejusdem sunt Naturae geritur To wage War with the Dead who were lately of the same Nature with our selves is bruitish Cruelty IV. Whether to such as are notoriously wicked But yet as concerning such notorious Malefactors as have deserved Death and according unto Law have suffered there were some cause to doubt But that the Divine Law given to the Hebrews which as it was our guide and directrix to all other Vertues so is it to this of Humanity also did command That such as were hanged on the Gallows which was a Death very ignominious among them as appears Numb 25.4 and Deut. 21.23 should be Buried the same day Whence Josephus affirms 2 Sam. 21.26 That so great was the care that the Jews took of burials that they took down the Bodies even of those that were publickly Executed before the Sun went down and bequeathed them to the Earth And as others of the Jewish Interpreters add This they did in reverence only to the Image of God whereunto Man was created Homer records That Aegysthus who to the Sin of Adultery had accumulated another Sin Odyss 3. even that of the Kings Murther being himself afterwards slain was notwithstanding by Orestes the slain Kings Son buried Yea and among the Romans Vlpian will inform us That the Bodies of such as were put to Death as Malefactors could not be denyed their Kinsmen if they required them yea they were to be given to any body else that would ask them as Paulus understood it Neither did those cruel Emperours Dioclesian and Maximilian forbid Burial to any though guilty of the greatest crimes and accordingly punished Hos Sepulturae tradi non vetamus was the answer of both of them We do not forbid these to be buried The like Custome there was among the Romans as Philo testifies against Flaccus Yet Examples we have also of some who have been cast out unburied But this is more frequently done in Civil than in Foreign Wars And though it be a Custome among us to hang notoriours offenders in Chains to deter others yet whether this be commendable or not The hanging men in chains whether commendable is much disputed not only by Politicians but Divines On the contrary we find them highly commended who have themselves caused those Bodies to be buried which they would not permit others to bury As Pausanias King of the Lacedaemonians who being provoked by the Aegeneti to retaliate what the Persians had before done against Leonides rejected their Counsel as unworthy of him or indeed the name of a Grecian Papinius brings in Theseus bespeaking Creon thus Vade atra daturus Supplicia extremique tamen secure Sepulchri Torments extreme go and endure Yet of a Sepulchre be thou secure Josephus records it of the Pharisees Ant. l. 13. c. 24. That they gave a most sumptuous Funeral to their King Alexander Jannaeus notwithstanding his barbarous cruelty exercised over the Bodies of his dead Countrey-men And though God hath sometimes punished some persons with the loss of Burial as he did Jehoiakim and Jezebel Jer. 22.19 yet this he did by his own most Sovereign Power which is not bound up by any Law but that only of his own Will And whereas David kept the head of Goliah 1 King 21.23 to shew as a Monument of his Victory it was done upon a Stranger a contemner of the true God And under that Law where by the word Neighbour none were included but the Hebrews only V. Whether to those that killed themselves There remains yet one thing worthy our observation concerning the Burial of the dead namely That the Jews as zealous as they were for this duty yet would not vouchsafe this Honour to those who killed themselves And no marvel as Josephus well observes †Ant. lih 3. c. 25. since no other punishment can possibly be inflicted upon those who esteem Death it self to be none The Milesian Virgins as Plutarch reports were all at once surprized with a violent fit of Melancholy and in an humour would needs dye * A. Gell. l. 15. c. 10. Plut. de Mul. virt no man knowing the cause why Many of them notwithstanding all perswasions and care taken of them did strangle themselves and others daily attempting to do the like were prevented At length by the advice of a grave Senator The Milesian Virgins it was enacted That all that were found so hanged should be stript naked and with the same cord being first dragg'd through the streets hanged in the Market place and exposed to publick view The fear of shame was stronger than the fear of death After this Law made none was ever found so regardless of her Honour as to attempt such an Act. Servius upon the twelfth of Virgil's Aeneads tells us That it was provided by the Roman Laws Vt qui laqueo vitam finisset insepultus abjiceretur That whosoever hanged himself should be cast out unburied And very frequent it is among most Nations Nic. 55. to inflict some brand of Infamy upon such as kill themselves as Aristotle notes Which place Andronicus Rhodius expounding saith That they were prohibited Burial Which Law Dion Chrysostome highly commends among many others enacted by Demonassa Queen of Cyprus Aesch in Clesephontem At Athens in the times of Aeschines he that killed himself had his Hand buried apart from his Body Neither is it to the purpose to object with Homer Aeschylu◠and others that the Dead feel nothing either of pain or shame For no malefactor is put to death simply because he hath sinned but in regard that his death strikes a terrour into others Quod mortuis accidit à vivis metuitur What happens to the
did the wrong Secondly By taking away from him the power to do wrong Or Thirdly By deterring him from doing any further wrong by the sharpness of his punishment which is conjoyned with reformation whereof we have just now already discourst But to be secured from others by the punishment of him who hath offended it is necessary that the said punishment be publick and conspicuous which appertains to exemplary punishments whereof more anon Now if our desire of revenge though private be directed to these ends only and can be impaled within the bounds of equity if we look at the bare Law of nature first abstracted from divine and humane Laws and from those other occurrents which do not necessarily happen to the thing it is not unlawful whether it be done by the person injured or by another seeing it is natural for one man to help another De Invent. lib. 2. In which sense may that of Cicero be admitted where he defines the Law of nature to be that which consists not in opinion or custom but in that which nature it self suggests unto us where also amongst other examples he places this of vindication which he there opposeth to grace or pardon And lest any man should question the extent of the word he defines it to be that whereby we defend both our selves and those who ought to be dear unto us from force and calumny by a just revenge or whereby we punish offences Mithridates in that Oration which Justin extracts out of Trogus speaks thus Against Thieves all men ought to draw their swords if not for their safety yet for their revenge which Plutarch in the life of Aratus calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law of revenge By this natural Law Sampson justifies himself against the Philistines Judg. 15.3.7.11 when they had provoked him by taking away his wife and giving her to another Now saith he shall I be more blameless than they though I do them a displeasure for he concluded it to be just for him to injure them who had first provoked him by so great an injury and according to this rule he pleads his own cause and defends himself for being demanded by the men of Judah what he had done against the Philistines to provoke them he answered as they have done to me so have I done to them v. 11. Plut. Rom. ad finem When the Laurentines delivered up those that killed Tatius to Romulus to be punished he set them at liberty saying that blood was to be expiated with blood intimating that because Tatius had before slain their Embassadors or at least connived at it it was but just that blood should have blood for as Belisarius in Procopius notes it is but natural to account him as mine enemy who hath by an assault wounded me Thus likewise the Plateans in Thucydides plead for themselves in the like case we have deservedly punished them say they for by that Law that is in force amongst all men it is lawful to be revenged on those that first make war upon us Vand. 1. Demosthenes in his Oration against Aristocrates saith that this Law is common amongst all men to inforce satisfaction from them that have forceably taken away our goods from us and Jugurtha in Salust having shewed how Asdrubal had laid in wait for his life adds that the people of Rome did that which was neither just nor right in forbidding him that rigbt which the Law of Nations allowed him that is a just revenge and Aristides the Orator proves it by the authorities both of Poets Lawyers Proverbs and Orators that a revenge may be lawfully taken upon such as have first injured us St. Ambrose commends the Maccabees for revenging the blood of their innocent Brethren though it were on the Sabboth and against the Jews who bitterly complained against the Christians for burning their Churches he pleads thus if I should argue according to the Law of Nations I should recount how many Christian Churches the Jews burnt in the time of the Emperour Julian thereby concluding that to requite like for like was agreeable to the law of Nations thus did Jonathan and his associates revenge the death of their Brother John upon the Nabathits as they were celebrating some great Nuptials upon whom he unexpectedly fell and slew both men women and children as Josephus informs us But because men are too partial Judges in their own causes Ant. l. 13. c. 1. therefore that liberty which nature did at first indulge unto every man in vindicating his own quarrel is justly taken away and Judges appointed to determine all controversies between man and man and to help those to right who suffer wrong Thus Demosthenes pleads against Conon As for these injuries it was thought fit by our Ancestors that they should receive their punishment from the Laws and not from the rage and violence of every mans will So doth Quintillian the compensating of an injury is not only repugnant to the Law Laws and Magistrates ordained to punish offenders and why but unto peace for there are Laws Judges and Courts whereunto any man may appeal unless there be any that are ashamed to be vindicated by the Law So likewise the Emperours Honorius and Theodosius for this very cause are Tribunals erected and the defence of the publick Laws instituted lest any man should arrogate to himself the liberty to revenge his own quarrels So King Theodorick from hence do the Laws challenge from us a sacred reverence that no revenge may be taken by our own hand nor any thing done against our enemies by the suddain impulse of our own passions For how inconvenient this would be is evident by that plea of Tindarus against Orestes This if thou sufferest Menelau ' I ask If th' angry wife her husband's blood should spill And in revenge the son his Mother kill And if her blood cannot be washt away Without fresh blood where would these mischiefs stay Which words of Euripides being full of Prudence do abundantly supply both Philosophers and Orators with matter of Argument Maximus Tyrius in his dissertation concerning the retaliating of injuries speaks thus A good man will neither do an injury nor suffer one not do one I mean willingly nor suffer one because he magnanimously slights all that are done unto him If to infer an injury be wicked surely to return one is somewhat like it for although he that wrongs another in that he gives the first offence commits the greater fault yet he that requites that injury because he was pleased with revenge is alike wicked for if he that doth his neighbour wrong do evil surely he that returns that evil is not the less evil because he doth it in revenge And a little after quis erit unquam injuriarum finis c. if it be granted saith he that a good man having received an injury may revenge it then may he that suffers that revenge as justly return it for on both
Miracles that were wrought by him and his Apostles which thing being matter of fact though of old confirmed to have been done by most irrefragable Testimonies yet of old so that this is a question of Fact and that now of great Antiquity Much more may this be questioned by such as now live so many Ages distant from that Age wherein they were done as well as the truth of their Histories which are as ancient as that is especially by those who never heard of them before nor have any of those helps either inward or outward which are necessary to beget Faith And therefore we say That Faith is not by Nature but by Grace and that as when God gives it it is not as the reward of any pleading merits so when he denies it or gives it more sparingly it is for Causes not indeed unjust though unto us for the most part unknown and so not at all punishable by humane Laws To this purpose was that Canon of the Toletane Council made whereby it was decreed That no man should be inforced thenceforth to Christianity Rom. 9. For it is said He will have mercy on whom he will have mercy and whom he will he hardenenh So Josephus Every man ought to worship God willingly and freely and not by compulsion It is the custom of the Holy Scriptures to attribute that to the will of God whereof no probable cause can be assigned by men Wherefore since it is not in the power of man to give a reason why some men do believe and others not though both have the same outward helps and means hence it is that we resolve all such doubts in Gods will saying He will have mercy on whom he will have mercy and whom he will he hardeneth Neither is this the manner of the Holy Scriptures only but it is usual with prophane Authours who when in doubtful Cases they find not reason sufficient to inform their judgments supply that defect with a sic visum Thus it seems to be The second thing observable is That Christ the Authour of the New Law did never intend that any man should be compelled to receive it by temporal punishments or driven thereunto by the fear of them We have not received saith St Paul the Spirit of bondage to fear Jo. 6.67 Luke 9.54 Matth. 13.24 Rom. 8.15 So Heb. 2.15 In which sense it is very true what Tertullian saith Nova Lex non se vindicat ultore Gladio The Gospel doth not call for the Sword to avenge its injuries Isidore speaking of Sisebutus King of Spain saith That in the beginning of his Reign being inflamed with a zeal for Gods Glory though not according to knowledge he compelled the Jews to Christianity by the power of the Sword whom he ought to have won to the Faith by meek and gentle perswasions And for this very Cause were the latter Kings of Spain highly blamed by Osorius and Mariana In the Constitutions of Clement it is said of Christ That he left to every man the free power of his own will not punishing the breach of his Law with temporal death but calling them to an account for it in the life to come So our Blessed Lord leaving every man to his own will makes Proclamation openly to all If any man will come after me Vid. Cypr. Ep. 55. de Idolor vanitate c. And to his Apostles Will ye also forsake me as leaving it to their own choice without laying any inforcement upon their wills And whereas in the Parable of the Great Supper it is said That some were compelled to come in it is answered Luke 14.23 That as in that Parable the word compel argues nothing else but a vehement sollicitation so also is it to be understood in the Moral of that Parable in which sense the same word is taken Luke 24.29 and not otherwise Matth. 14.22 Mark 6.45 Gal. 2.14 Procopius in his secret History tells us That Justinian the Emperour was by many very wise men taxed for compelling the Samarites by force and menaces to Christianity adding thereunto the inconveniencies that was likely to arise thereupon XLIX That war may justly be made against them that persecute Christians as such But they that persecute others for no other cause but because they either teach or profess the Christian Religion are most unreasonable For certainly our Christian Doctrine considered in its sincerity without any commixture contains nothing prejudicial to Humane Society nay that doth not rather advance it it shall speak for it self and its Enemies shall confess no less Pliny reports of the Christians of his time That they had obliged themselves by oath to abstain from thefts and robberies and not to break their faith with any man Ammianus speaking of our Religion saith That it teacheth nothing but what is just and merciful So doth Arnobius treating of Christian Assemblies Wherein saith he nothing is heard but what exhorts to humanity meekness bashfulness modesty chastity and communicating of their goods to all men as if they were all link'd together by brotherly love And it is the usual Character that the very Heathen give of it That it is Secta nemini molesta A Sect of Religion offensive to none Zozimus though a Pagan gives this testimony of the Christian Faith That it is a promise and engagement to be free from all crimes and from all impiety Apolog. 2. So likewise Tertullian We saith he are Coadjutors and Fellow-labourers with you in establishing the peace of the Empire instructing our Auditors that it is impossible for any man to conceal himself from God whether he be an evil Doer a Thief a Traitor or a just Person as also that every man shall be adjudged to eternal either life or death according to the merit of his deeds Tertullian also observes that it was a common by-word in his time Bonus vir Cajus Sejus tantum quod Christianus He is an honest man only he is a Christian And if it be objected That all innovations are to be feared especially Conventicles and private Assemblies I answer That those Doctrines though new are least to be feared that teach all things that are just and honest but principally those that exact due obedience to Magistrates neither should the private Assemblies of Just and Innocent men be either envied or suspected especially of such as desire not to abscond themselves unless they are persecuted And here I might justly apply unto these Christian Assemblies what Philo records that Augustus said of the Jewish Conventions In Legatione Non eos Bacchanalia esse aut coetus turbandae paci sed virtutum scholas That such meetings were not for revelling or for sedition but mere Academies for Virtue They therefore that persecute such men Aquin. secunda secundae q. 108. and that for this only cause may themselves justly be persecuted Upon this ground it was That Constantine made War against Licinius and other Emperours against the Persians
〈◊〉 〈◊〉 〈◊〉 〈◊〉 a savageness proper to wild beasts only And so doth Seneca Lib. 2. de clem cap. 7. Non crudelitatem sed feritatem dicimus We cannot so properly call it cruelty as a kind of savage fierceness to delight in blood We may also call it madness whereof as there are divers kinds so are there divers symptomes but none more certain than that which delights in humane slaughter Wherewith accords that of Aristotle He is cruel with a witness who is so far transported with a thirst after humane blood that he makes no difference between friends and foes And that also of Dion Prusiensis To engage our selves in unnecessary Wars and to rush into battel without any provocation is a meer madness So likewise saith Seneca Orat. 37. There are few or none so savage as to shed humane blood prodigally and that for bloods sake only III. The War that hath no justifying cause is but predatory Most men that make War have some Causes that move them thereto some whereof have matter sufficient to justifie them others none at all Of this latter sort was that War made by the Heruli against the Lombards a War without any pretence whatsoever And such were the Wars made by the Gauls as Livy testifies who thought the best right to consist in their Arms and that the longest sword might take all But in the account of the Roman Laws Qui rogatus de possidendi causa nullam aliam adfert quam quod possideat praedae est He who being demanded by what right he held any thing could shew none but that having got it he would keep it was held to be a Thief a Pyrate or an Vsurper of another mans Right So Aristotle of such as excite others to War saith That they regard not at all whether to subdue their innocent neighbours be just or not Such a one was Brennus who held That he had the best Right to All who was strongest of All Such a one Silius thought Annibal to be pro foedere próque Justitia est ensis Whose Sword did awe Both Leagues and Law And such was Attila and all those who look not at the Cause but at the success of Wars according to that vulgar saying of most Souldiers Quaeritur belli exitus Non causa 'T is not the Cause but th' End that crowns the War For when once the dispute comes to blows the vanquished Party cannot by the strength of Argument convince the Conquerour that he is in an errour nor shall Reason be heard when the Sword hath decided the Quarrel Haec acies victum factura nocentem est This battle will the vanquish't guilty make For let the Cause be what it will The conquer'd party must be guilty still Whereunto that of St Augustine may very fitly be applyed De Civit. l. 4. c. 6. To invade the Dominions of our neighbour Princes and being encouraged by success to proceed by force of Arms to wast their Countries and out of mere ambition to destroy those who never injured us Quid aliud nisi grande latrocinium nominandum est What can we call this but a grand robbery Of such Wars as these thus speaks Vellejus That they are made for no other cause but for pay and plunder So thought Cicero also That pride and haughtiness of spirit De Off. lib. ◠whereby we confront dangers and endure all manner of hardship is no part of true valour if justice be wanting To the same purpose speaks Agathias Lib. 2. They who being transported either with an insatiable desire of Rule or of Riches or by a violent hatred shall without any other cause invade another mans Dominions forasmuch as they offend those that are inoffensive these men saith he are both proud and dishonest Of the same mind was Andronicus Rhodius They who to enrich themselves do rob others are accounted wicked impious and unjust and such are Tyrants and they who for plunder make Cities desolate Ferinum est ad caedes vastationes nulla accepta injuria venire See Bo. 2. Chap. 1. §. 1. Concerning whom Philo upon the Decalogue writes thus They that have got the power of Thieves and Robbers that spoil whole Cities being secured from punishment by being above the Laws these are men of a barbarous nature ambitious of rule and dominion committing great robberies yet cloaking their villanies under the specious names of Magistracy and Empire which may more properly be called notorious villanies For to waste and depopulate Countries being by no injury provoked is brutish cruelty IV Some causes are specious but not just Others there are that pretend to make War upon just and warrantable grounds which notwithstanding being throughly searched into will be found unjust and as Livy speaks A contest not to be decided by Law or justice but by plain force Some Princes saith Plutarch make the same use of Peace and War as private men do of Money not always for just ends but for ends suitable to their own fancies Now tho' what causes are unjust may be in some measure known by those that are just Rectum enim est obliqui judex for by a line that is straight we may easily discern that which is crooked yet for plainness and perspicuity we shall insist upon the principal heads of them V. As an uncertain fear And First Our fears by reason of the swelling power of our neighbour Prince is no sufficent ground for a just War for that our defence by Arms be just it ought to be necessary which it cannot be unless we are most assured not only that he against whom we make War hath a power to do us wrong but that he hath also a full purpose and resolution so to do which certainly ought to be such as takes place in moral matters That therefore our Neighbour being not restrained by any former agreement builds a Fort in any part of his own Dominions from whence we may be hereafter annoyed is no just ground for us to make War upon him because for prevention we also may do the like in any part of our own Territories Zonaras Pausanias lib. 1. or apply our selves to other the like remedies and not by War Whence we may conclude That the War made by the Romans against Philip of Macedon and that made by Lysimachus against Demetrius were unjust unless warranted by the access of some other cause The Cauchi I am very well satisfied with that of Tacitus concerning the Cauchi the noblest People of all Germany Who saith he supported their grandeur by justice without any extraordinary affectation either of glory or riches and yet without any disability or want of power to either they lived quietly and without noise provoked no Wars nor were they wasted by spoil or pillage Though our own uncertain fears be no sufficient ground for us to make War yet may we use all lawful means cautiously to prevent dangers before they fall this is
Christian Doctrine X. Single Combats permitted Near of kin unto this are single combats between Competitors the use whereof is not altogether to be rejected for where two persons standing in competition for one thing which cannot be divided are ready to embroil a whole Nation in blood It were much better and more just that one should perish for all than that all should perish for one only In which Case that of Jocasta in Seneca is good advice Plut. Otho Theb. Rex sit è vobis uter Manente regno quaerite Try which of you shall reign But let the Kingdom still remain And this if not justifiable in the competitors themselves yet may it well be accepted of by the people if offered as being of two evils by much the lesser Thus Metius in Livy bespeaks Tullus Lib. 5. Let us agree about some way whereby it may be determined whether of us two shall reign over the other without the effusion of so much blood or the slaughter of either of our people Strabo set it down as an ancient custom among the Grecians And Aeneas in Virgil accounted it a very just thing that the quarrel between Turnus and him should have been thus decided Aen. 11. Fitter 't had been for Turnus thus t' have died And for this cause it was that M. Anthony challenged Caesar to a single combate as Plutarch records Vit. Ant. Sure it is that amongst other customs of the Ancient Francks Agathias highly commends this whose words being worthy of Eternal Memory are to this purpose No sooner did any quarrel arise between their Kings but immediately they betake themselves to their Arms they raise Armies and march against each other so furiously as if nothing but an absolute conquest could end the controversie but yet as soon as the Armies met and faced they presently laid aside all animosity and made peace thereby enforceing as it were their Kings to dispute their grievances rather by Law than Arms or if that pleased them not then to end their quarrels with the peril of their own lives only as judging it neither just nor reasonable nor indeed agreeable to their national customs for their Kings to sacrifice the Commonwealth to their private hatred wherefore they instantly disband their Armies reconcile their Princes and make Peace Tanta in subditis cura justitiae patriae amor in regibus animus placidus suis obsequens So great in the subjects was their esteem of justice and love to their Country and in their Kings their moderation of spirit and their compliance with the people in order to their common safety XI In cases equally dubious the present occupant hath the best right Although where the equity of the cause is doubtful both Parties are obliged to seek after conditions of peace to prevent the miseries of War yet doth it more concern him that demands than him that enjoys what the other requires as in the like equal cause Melior est possidentis conditio The title of the present occupant is presumed to be best as being most agreeable not only to civil but to natural Right the reason whereof we have already given elswhere out of Aristotle's Problems whereunto we must here add That War cannot be lawfully made by him who though he know his title to what he claims to be good yet cannot produce evidence sufficient to convince the present occupant of the illegality of his possession because he hath not a Right to compel his Adversary to leave his possession XII If neither be possest then a partition is just Where the Right is equally ambiguous and neither party in possession or both equally then he is to be reputed unjust that shall refuse an equal partition of the thing controverted being offered unto him XIII Whether a war may be on both sides just explained by many distinctions By what hath been herein said it will be no hard matter to resolve that question which is so frequently controverted Whether a War in respect of the principal promoters of it can be on both sides just where we must first distinguish between the various acception of the word Just * So Gratian distinguisheth justice into that which respects the cause the order and the mind c. 11. q. 5. post C. Episcopus For a thing may be said to be just in respect of the cause or according to the effects Again a thing a may be just in respect of the cause either according to the special and strict acception of justice or according to its more general acception as it comprehends whatsoever in equity or honesty ought to be done Again the word Just taken in its special signification may be subdivided into that which respects the work done or into that which respects the mind of him that doth it for the agent may sometimes be said to do justly whilst he doth not unjustly though that which he doth be not just As Aristotle * Eth. l. 5. c. 10 11. Greg. rightly distinguisheth between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to do unjustly and to do that which is unjust Bonis male utuntur qui temporali lucro juste judicant They make ill use of things in themselves good who do justice for rewards sake because it is the hopes of gain and not the love of justice that excites them to defend the truth Now in this special acception of the word Just and as it relates to the thing it self no War can be on both sides just as neither can any other contest be Quia facultas moralis ad contraria non datur per rei ipsius naturam Because the very nature so the thing about which the dispute was will not admit of a moral power to things that are contrary as namely to do a thing and yet to oppose the doing of it But yet it may very well be That neither of the Parties warring against each other doth unjustly because no man can be said to do unjustly but he that knows that which he doth to be unjust But many men do not know that they do amiss though that which they do be in it self unjust so when men go to Law they may justly that is with a good mind and intention do it on both sides because they do both conceive that they are in the right To some things the Right is not discernable whose it is and then whilst each endeavours to take that from another which he thinks belongs to himself who can condemn either of injustice for of many things as well in point of Right as in matters of fact whence Right ariseth men are ignorant Now in the general acception of the word Just that is said to be just in the doing whereof the Agent is altogether innocent for the act may be unjust and yet the Agent blameless by reason of his insuperable ignorance An example whereof we have in such as being through no default of theirs ignorant
blame-worthy as he that injures him Yet are not such Covenants to be so far extended as to engage us in a War if there be no just Cause Amb. de Off. l. 1. c. 36. Wherefore the Lacedemonians before they had made War against the Athenians referred the justice of their Cause to the judgment of all their Confederates Liv. l. 34. So did the Romans before they began their War against Nabis make the Grecian Cities Judges in their case So Simler Simler concerning the Commonwealth of the Switzers If the Lord shall make War against any man and it be known that his cause be just or if it be doubted whether it be so the Vassal shall be bound to assist his Lord but if it be manifest that the War is unreasonable then is the Vassal bound only to defend his Lord but not to offend another Whereunto we may add That though the case of our Confederates be just yet if his case be desperate A Confederate not to be assisted in case his condition be desperate and why and that though we should assist him with what forces we can there are no hopes of a good end we are not then bound to aid him because all alliances were at first made for preservation but not for destruction yea and we may defend one of our Confederates against another of our Confederates unless we are by any Article in a former League particularly forbidden it Thus the Athenians might have defended the Corcyreans if their Cause had been just against the Corinthians their more ancient Associates V. For our Friends Next to our Confederates our friends are to be assisted to whose aid though we stand not engaged by any League or promise yet upon the score of common friendship we ought to contribute towards their assistance if we may do it with ease and without any inconvenience to our selves Thus Abraham too up Arms in defence of his Kinsman Lot And thus the Romans farbad the Pirates of Antium to rob the Grecians their Friends and Kinsmen And thus we often read it of the same Romans that they frequenly either made War or at least threatned so to do not in the behalf of their Associates only to whom they stood obliged but for their Friends and Neighbours also upon no other account but that of Love and Friendship There is an old Oracle that serves to guide us in this case Non ope juvisti praesens in morte sodalem Effabor tibi nil nisi Templi finibus exi VI. For any man Lastly we owe our assistance to all mankind by reason of that near conjunction that there is between us which alone were sufficient to excite us to aid and to succour each other Homo in adjutorium mutuum generatus est Men saith Seneca are born to help each other And again Cic. de Fin. l. 3. de Off. l. 2. Sen de Ira. l. 1. c. 7. de Clem. 2. 5. A wise man will as oft as be can prevent misfortunes According to that of Euripedes What Beasts from Rocks Servants from Altars have Cities distrest the like from Cities crave And indeed That fortitude that defends the cause of the weak and innocent is full of justice saith St Ambrose but of this we have treated above VII Yet it may be omitted if either it endanger our selves or take away the invaders life Here also it may be questioned whether for one man to defend another or for one People or Nation to protect another from violence and wrong be a debt whereunto we stand bound Plato in the fourth of his Laws affirms That he that doth not repel violence offered to another if he can do it deserves to be punished The like provision was made both by the Hebrew and Aegyptian Laws * Diodor. l. 1. but this general will admit of some exceptions for in case we cannot do this without incurring some manifest danger unto our selves it is most agreeable to nature that we abstain from attempting it for every man may prefer his own before the welfare of another And in this sense doth that of Cicero hold true He that doth not defend another nor resist an injury when he can is as much to blame as he that deserts his Parents his Country or his Friends if he can that is with safety to himself For he himself in another place admits That some haply may he left unprotected without blame Salust in his History gives this wholesome advice Let them saith he who being in prosperity are about to engage themselves in a social War seriously consider First Whether they may then live in peace Next Whether the War they engage in be just safe honourable or otherwise inconvenient De benef l. 2. c. 15. Succuram perituro sed ut ipse non peream I will defend him saith Seneca that is ready to perish but so that I thereby perish not my self unless it be to rescue from death some person of great honour or to purchase some very great advantage unto either my self or my relations De benef lib. 1. c. 10. See Book 2. ch 1. §. 8. Bonum etiam impendio sanguinis mei tuebor A good man saith he though with the hazard of my life I shall defend and if I can rescue a bad man from Thieves by my clamour and outcry I shall willingly strain my voice to do him good But yet if that good man be so oppressed that he cannot be relieved without the death of the oppressor I am not bound to do it for if what I have said above be granted namely That the case may so happen that the person invaded may chuse rather to dye himself than to be the death of the invader He that doth believe the invaded doth wish or would chuse rather so to do doth not sin if he do not rescue him especially when the damage that is likely to befal the invading party is in all probability likely to be both irreparable and everlasting VIII Whether a War may be made upon another King for oppressing his own Subjects Another Question is sometimes started Whether that War be just which is undertaken to free anothers Subjects from the oppression of their own Prince without doubt as soon as civil societies were at first instituted every Governour had some peculiar Rights over his own Subjects according to that of Euripides Nos quotquot hujus colimus urbis moenia Sufficimus ipsi nostra judicia exequi We that within these walls reside suffice Our selves to punish our Delinquencies To the same purpose also is that Spartam tibi quae contigit orna Nobis fuerint cura Mycenae Let Sparta's care be thine Mycena's shall be mine Thucydides amongst other marks of Soveraignty reckons this namely A Power in it self to execute judgments and this he holds to be as necessary as the Power either of ordaining Laws or creating Magistrates and to this we may refer that of Neptune concerning Aeolus Virgil Aen.
of St Ambrose Histories will inform us And although Almighty God doth so sometimes yet ought that to be no example to us because of that full and absolute Right of Dominion that he hath over us which he hath not granted unto us to have one over another and yet even God himself who is Lord Paramount over all Mankind doth often spare a World of wicked and ungodly men for a very few that are good thereby manifesting his equity as he is a Judge as sufficiently appears by that sweet Colloquy between him and Abraham concerning Sodom by which general rules it is easily collected Gen. 18.23 c. how far our Right extends in War against our Enemies by the Law of Nature V. What we may do against them that supply our Enemies with what they want And here another Question is usually started namely what we may lawfully do to those who are not Enemies or at least will not be so reputed and yet do daily supply our Enemies with such things as they need Great contests have antiently been and now are about this matter some stifly maintaining the rigour of the War others as earnestly contending for the liberty of Trade and Traffick But first we must distinguish of the things wherewith the Enemy is supplyed for some things there are that are of no use but in War as Arms and Ammunition some things there are which are of no use at all in War Procop. Goth l. 1. as things serving for pleasure only And lastly some things there are that are useful both in Peace and War as money Victuals Apparel Ships and materials for Shipping At Athens it was prohibited to export Flax Bottles Timber Wax Pitch and the like Concerning things not useful but in War it is true what Amalasuintha told the Emperour Justinian He is to be esteemed as an Enemy that supplies the Enemy with things necessary for War as to the second sort of things there is no just cause of complaint So Seneca thought The favour of a Tyrant I may purchase in case that which I give him do neither increase his power to do mischief nor confirm that which he already hath for such things as these a man may give without encreasing the common calamity I will not saith he supply him with money whereby he may keep his Army in pay but if he require Marble Perfumes or costly Apparel these being but the fuel of his lust can hurt no man but himself Soldiers and Arms will I not furnish but if he will accept of the best Artists I have to make Scenes for Masks and Plays I shall willingly part with them Thus did Hyram gladly furnish King Solomon with Timber and all kind of curious Artificers that might encrease the delight he took in sumptuous buildings thereby to divert him from pursuing with his vast Riches his Fathers conquests in Syria So also St. Ambrose De Off. lib. 1. c. 30. to contribute to him that conspires against his own Country is no commendable liberality As to the third sort of things which are of doubtful use we must distinguish of the present state of the War For if I cannot defend my self unless I do intercept those things which are sent to mine Enemy necessity will give me a good Right to them yet upon this condition that I make restitution unless there be sufficient cause to the contrary Again if the supply that is sent in do hinder the execution of my defence of the design and he that sends it might have known that it would so do As for example If I have besieged a Town and blocked up its Ports so that I may justly expect the surrender of it or a Peace in this Case he that shall knowingly send in relief is bound to give me satisfaction for the loss I sustain thereby no less than he that takes a Prisoner out of Custody that owes me a just Debt or instructs him how to make his escape thereby to defraud me and proportionably to that loss I sustain I may seize his goods and posess them as mine own till I am satsfied and if the damage be not already given but intended only then have I a Right by the detention of those supplies to compel him that sent them to give security either by pledges hostages or the like that he will not for the future send any more supplies to the besieged But in Case the wrongs done me by mine Enemy be manifestly unjust and that he by those supplies do abet and encourage him in his unjust War then he shall not only be bound to repair my loss civilly but also criminally as he that rescues a notorious malefactor in the very presence of a Judge and for this Cause it is lawful for me to do unto him agreeable to his offence according to those rules which we have already set down for punishments And so long as we contain our sâ—lves within these bounds we may make War upon him and for this Cause do they that make War usually send out Declarations and Remonstrances to other Nations as well to insinuate unto them the equity of their Cause as also what probable hopes they have to recover their Right Now the reason why we refer this matter to the Law of Nature is because we find nothing certainly determined in Histories by the voluntary Law of Nations as to it There is a Book written in Italian Intituled Liber consulatus Maris concerning the Government of the Seas wherein are recited the Constitutions of the Emperours of Greece and Germany the Kings of France Spain Syria Cyprus the Baleares Venetians and Genoese wherein are handled two hundred seventy four Questions upon this Subject where we shall find it adjudged That if the Ship with its freight be both the Enemies then there is no doubt but both are lawful prize If the Ship belong to such as are at peace with us and the goods to our Enemies we may enforce them to put into any of our Allies or our Ports there to unlade the goods yet so that we pay the Master of the Ship for the freight of them But in Case the goods belong to our Friends and the Ship to our Enemies then is the Ship lawful prize and to be agreed for which if refused they may be compelled into any Harbour of our Friends and withal to pay us for the freight of those goods In the Year 1438. There being War between the Hollanders and the City of Lubeck with other Cities Confederate situate upon the Baltick Sea and the River Albis it was in Holland adjudged in full Senate That the Goods found in an Enemies Ship if it did appear that they belonged to others were no lawfull prize and this was there from thence established for a Law and so pleaded by the Danish King in the year 1597. who thereupon sent his Embassadors into Holland to assert his Freedom to transport his Goods into Spain notwithstanding the bloody War which the
have Soveraign Power and how this is to be understood V. And that the War be solemnly denounced VI. Whereunto what by the Law of Nature and what properly by the Law of Nations is required is handled distinctly VII The denunciation of War is sometimes conditional sometimes simple and absolute VIII In denunciations what belongs to the Civil Law and not to the Law of Nations IX War being denounced against a Prince is denounced also against his Subjects and Associates so far forth as they follow him X. But not as by themselves considered this illustrated by examples XI The reason why denunciation is requisite to some effects of War XII That these effects are not to be found in other Wars XIII Whether a War may be made as soon as it is denounced XIV Whether against him that hath violated the Rights of Embassadors a War may be made though not denounced I. A Solemn War ought to be between two diverse Nations WE have already said * Lib. 1. cap. 3. sect 4. That according to the Opinion of the best Authors a War is oft-times said to be Just not from the Cause that excites it nor from those Heroick Actions that are done in it but from some peculiar effects of Right which one War hath more than another But what manner of War this is is best understood by the definition which the Romans give of an enemy Hostes sunt qui nobis aut quibus nos publicè bellum decernimus They are Enemies saith Pomponius against whom we publickly denounce War or who do the like against us the rest are but Pyrats and Robbers to the very same purpose speaks Vlpian Wherefore as he there adds He that is taken by Robbers is not a slave to those that take him neither need he recover his freedom by the Right of Postliminy L. Postliminium sect 2. D. de Cap. L. si quis ingenuam as one that returns out of Captivity doth A Piratis aut latronibus captus liber permanet saith Paulus the Lawyer He that is taken prisoner by a Robber or a Pyrat loseth not thereby the priviledge of a Citizen as he doth that is taken prisoner in War by the Germans or by the Parthians Whereunto we may add that of Vlpian In Civil Dissentions although the Common-Wealth be dangerously wounded yet doth not the Contest extend to the ruine of the State they that betake themselves to either part are not such mortal Enemies as they are to whom the Right of captivating men and of Postliminy belong And therefore though they be taken and sold yet whensoever they shall recover their liberty they shall not need to petition their Prince to restore them to their Freedom because they never lost it by a just Captivity This only is to be observed That under the Example of the People of Rome whosoever in any City or Common-wealth hath the Supreme Power hath a Right to make a Just War according to that of Cicero Philip. 4. Ille hostis est qui habet Rempublicam Curiam Aerarium c. He is accounted an Enemy who enjoys a Common-Wealth a Court a Treasury the Consent and Concord of Citizens with some regard had if the matter require it to Peace and Leagues The word Hostis signifies properly an Equal which Pyrats and Robbers cannot be to Soveraign Princes and therefore they cannot be said to make a Just War II. A distinction between a Nation doing things unjustly and Pyrats and Robbers Neither doth a Common-wealth cease to be a Common-wealth because some Acts of Injustice are publickly and generally committed by them nor are Robbers or Pyrats to be deemed a Civil Society because haply they do observe some kind of equality between themselves without which no Society can possibly long subsist For these latter are not as Procopius speaks * Vand. 2. Turba hominum Lege congregata sed injustitiae causa in unum coacta A company of men associated under a Law but forced to unite to defend themselves against the Law whereas the former though guilty sometimes of some injustice and so not without some faults yet do they associate for the defence of their own Right and do Right unto Foreigners though haply not in all things according to the Law of Nature which in many places is almost obliterated yet certainly according to those Covenants and Agreements which they have made with every Nation or according to the Customs by them used Lib. 1. This the Scholiast upon Thucydides observes That whilst the Grecians preached Pyracy as a lawfull Calling they at the same time abstained from Murther from robbing by night and from driving away the Oxen that ploughed the earth Lib. 2. And Strabo records it of divers other Nations who though they lived by Piracy yet as soon as they returned home would send to the right Owners that if they would they might redeem their Goods at indifferent prizes And hitherto we may also refer that of Homer Ipsi etiam rapti avidi qui aliena pererrant Littora concessu Superûm si praeda reperta est Navibus impletis abeunt vela retorquent Quippe Deos metuunt memores fandi atque nefandi Greedy of Gain to foreign Coasts they stray If by their starry Guides they find a prey With sails retort they go their Ships full fraught Fearing the Gods minding what 's good what 's nought The Ancient Normans accounted Piracy an honourable Trade to live by And Plutarch notes of the Scipii that they were extremely corrupt yet a Commonwealth although they robbed even such Merchants as came in a friendly way to traffick with them but in Morals the principal part gives form to the whole And as Cicero well observed De finibus 5. Because it contains the most parts and spreads farthest therefore it gives denomination to the whole To the same sense is that also of Galen In temperaments the denomination is always taken from that which is the greatest portion Wherefore Cicero is very crude in his expression in saying That when the King is unjust the Nobles unjust and the generality of the People so it is not so properly a corrupt Commonwealth as none at all which sentence of Cicero's St. Augustine thus corrects Neither can I therefore say truly that that people are no people De Civit. Dei lib. 19. c. 24. or that Commonwealth no Commonwealth so long as there remains any society of a rational multitude unanimously congregated for the mutual defence of such things as they love A Body though diseased yet remains a Body and a City is still a City so long as it hath Laws and executes judgments and hath other means necessary for both natives and strangers to preserve or recover their just Rights That which Dion Chrysostome observes comes much nearer to truth who tells us That the Law especially that of Nations is in a City as the Soul in an humane Body which being taken away it remains no longer
afterwards as the Discipline grew more remiss so this Licence of pillage was more willingly granted to the Souldiers upon this ground lest whilst the Victory was yet doubtful the greediness of the Souldiers should make them neglect their Enemies and over-hastily fall upon the prey which hath often proved fatal to the Conquerour When the Castle Volandum in Armenia was taken by Corbulo Tacitus tells us That the common people were sold but the rest of the spoil was the Conquerours The same Tacitus brings in Suetonius encouraging his Souldiers to pursue their Enemies and not at all to mind the pillage assuring them that the Victory being ascertained the spoil should be their own Goth. 2. So in Procopius we read that all the pillage taken at Picenum was brought to Belisarius that he might divide to every man according to his merits the cause whereof is added For saith he it is most unreasonable that whilst some with much toil and valour are killing the Drones others without any labour or peril should devour the honey Vand. l. 2. And in another place he tells us That the Souldiers were much incensed against Salomon when he warred against the Levatae because he detained from them the prey who excused himself in that he did it for no other reason than that at the end of the War he might therewith reward every man according to his deserts There are some things of so small value that they are not worth the publication or exposing to sale these are usually granted to those that take them such in the old Roman Commonwealth were a Spear a Javelin Fodder Fuel a Bottle a Pair of Bellows a Torch Lib. 16. c. 14. and any thing else of less value than a small Piece of Silver For all these are expresly excepted in the Military Oath given to the Souldiers as we may read in Gellius Not much unlike is that which is allowed to Sea-men and Mariners although they are under pay Gall. Constitut lib. 20. tit 13. The French call this the spoil or pillage wherein are comprehended Apparel Bedding Fuel Gold also and Silver under ten Scutes sometimes the fifth part sometimes the third Leges Hisp sometimes half the prize belongs to the King as it doth in Spain and the seventh and sometimes the tenth to the General of the Army the rest belongs to them that take it except Men of War with all their Tackle which are always the Kings and so are all Engines of War amongst the Swedes Jo. Magn. in his Sweed Hist Consulatus Maris Cap. 285. In some places again regard is also had to the labour peril and charge that any man hath been at and allowance is made in the partition of the spoil accordingly In Italy a third part of the Ship taken in Fight is the Masters of the Ship that took it and as much belongs to them whose Goods the conquering Ship is laden withal and another third is theirs that fought and took her And sometimes it falls out that they who at their own charge and peril maintain the fight do not carry away the prize but some part thereof is due to the State or to him at least that derives it from the State As in Spain they that set out the Ship upon their own charge Leg. Hisp yield a part of the spoil taken to the King and a part to the Admiral of the Seas In France the Admiral claims the tenth part so also in Holland But there the State first takes the fifth part to themselves Thus it is at Sea but at Land in the sacking of Towns and in Battels every man usurps that which he takes to himself And in excursions into the Enemies Country by Parties whatsoever is so taken is divided among them that take it according to every mans merit and dignity XXV To what use these serve What hitherto hath been said serves to this end That if in any Nation not embroiled with War any Suit or Controversie arise concerning any thing taken in War the things shall be adjudged unto him to whom the Laws and Customs of that people from whose parts they were taken shall determine But if nothing can be thereby proved then by the common right of Nations the thing so taken shall be adjudged to the State or people themselves if at least it were taken in the act of War For by what we have already said it is plain Lib. 5. c. 8. that what Quintilian sometimes said in the behalf of the Thebans doth not always prove true As to what may be brought under the tryal of the Law the right of War avails nothing neither is it a good Plea to say It was gained by Arms unless by Arms we can retain it XXVI Whether things taken without the Territories of either Party be lawful prize But whatsoever is not the enemies though it be found with the enemy shall not be adjudged to them that take it For this as I have already said is neither agreeable to the Law of Nature nor was introduced by the Law of Nations So the Romans in Livy answer Prusias If the Lands in question were not King Antiochus 's neither could it by Conquest belong to the Romans But if the Enemy had any right or interest in those things which were annexed to the possession as if it were taken by him as a Pledge for some Debt or if it were retained by him for the performance of some Covenants for service or the like that was for the advantage of the Enemy See above Ch. 4. Sect. 7. and this Ch. Sect 5. Livy lib. 55. In all or any of these Cases I see no reason but that whatsoever was the Enemies is transferred unto the Conquerour This also is sometimes controverted Whether persons or Goods taken without the Territories of either of those Princes or people that are at War against each other be theirs that take them Whereunto it is answered That if we respect the Law of Nations only no place can give an Enemy protection for as we have already said Every where an enemy being found may be killed But yet he that hath the supreme power in that place may at his pleasure prohibit the prosecution of an Enemy within his own Dominions and in case of disobedience may require satisfaction as for an injury done against himself The like may be said concerning Deer taken in another mans Ground That they are his that takes them but it is lawful for him whose Ground it is to prohibit his access unto them XXVII This Right how proper to a solemn War But this external Right of gaining things taken in War is by the Law of Nations so peculiar to a Solemn War that in other Wars it can take no place For in other Wars amongst Foreigners the Right to a thing is not gained by force of the War but only in compensation of some Debt which cannot otherwise be recovered But in Civil Wars whether they be
That they may be the more willing to forbear I say for it is no bargain or agreement whereby they stand obliged to save them if we respect the Law of Nations but a perswasive argument drawn from profit it being far more beneficial to the Conquerour to sell his Prisoner then to kill him And therefore he hath the same power to transfer his Right in his Captive to another as he hath to assign over unto others the Right and property he hath in any of his own Goods or Chattels This Power is also extended to the Children that are born after Captivity because if the Conquerour had used his power to the utmost they had not been born From whence it follows That the Child that is born before that Captivity in case he be not taken Prisoner remains free Therefore by the Law of Nations the Children born of such Captives follow the Mothers condition because their Chastity is not provided for by any Law nor is there any strait guard kept upon them and therefore no presumption how great soever is sufficient to prove who is the Father And thus is that of Vlpian to be understood Lex Naturae haec est ut qui nascitur sine legitimo matrimonio matrem sequatur The Law of Nature is this That he that is born without lawfull marriage should follow the condition of the Mother that is General custom grounded on some Natural Reason hath moulded this into a Law * See second Book ch 13. §. 26. abusively sometimes so taken as we have already elsewhere shewn they that are born out of wedlock should retain the name and quality of the Mother and not of the Father because of the certainty of the one and the uncertainty of the other But that this unlimited Power over Captives was not introduced by the general consent of Nations in vain we may collect from the usual practice of Civil Wars wherein all Prisoners are commonly put to the sword because they cannot be sold for slaves Lib. Hist secundo tertio which was well observed by Plutarch in the life of Otho and by Tacitus who speaking of the Captives taken at Cremona saith Irritam praedam militibus fecerat consensus Italiae That it was agreed throughout all Italy that no quarter should be given whereby no booty came to the Souldiers by the sale of Prisoners Moreover whether the Prisoners taken should belong to the people or to them that take them must by what hath been said of the spoil be determined For the Law of Nations hath in this case equalled the condition of men with goods So Cajus the Lawyer Those things that are taken from the Enemy are by the Law of Nations theirs that take them so that even such as were free men are by this Law reduced into bondage VI. Whether such as are taken may fly Neither can I concur in Opinion with those Divines who hold That Captives taken in an unjust War or such as are born of them are obliged in conscience not to make their escape unless it be to their own Garrisons for herein I believe they err surely in this lies the difference if they can fly and make it good to their own Garrisons whilst the War lasts See Chap. 9th of this Book § .. 5 6. Plin. Nat. Hist lib. 7. c. 28. by the Right of Postliminy they recover their liberty and all things consequent to it Of M. Sergius Pliny reports that being twice taken by Hanibal he both times made his escape out of his chains But in case they make their escape to others or unto their own Country after the Peace made being re-demanded they are to be delivered But yet from hence it follows not that the Captives themselves are bound in conscience to return for there are many Laws which bind only as to the outward judgement which do not at all restrain the conscience and such are these of War whereof we now discourse neither is it much to the purpose to say that the very nature of Dominion doth of it self induce such an obligation because there being many kinds of Dominion possible it is that such there are as are of force only in humane judgement and so long only as the coercive Power lasts which is frequently seen in other kinds of Right Such in some sort also is that Law that makes void some Testaments because forsooth they want some formalities which the Civil Law requires whereas the more probable Opinion is that what is bequeathed by such a Testament may with a good conscience be retained so long at least as nothing appears to contradict it And not much different is his Right who hath according to the Civil Laws unfaithfully prescribed to anothers Estate for by the judgment of those Laws even this mans Title shall be defended untill it be made void by another sentence of the same Law And thus is that riddle of Aristotles resolved Is it not just saith he that every man should enjoy his own Lib. 2. de cavillat c. 5. but whatsoever the Judge hath according to his understanding decreed is by Law confirmed though in it self it be faâ—se therefore will the same thing be both just and unjust But in this question of ours there is no cause imaginable why the Nations should respect any other Right than that which is external and meerly humane For the Right of laying claim to a Captive of forcing him of binding him and possessing what he hath or can do is of it self motive sufficient to perswade the Conquerours that it is a greater advantage to them to keep them alive than to kill them But in case this cannot move the Conquerours surely no obligation that can be laid upon the conscience can do it which notwithstanding he may impose by requiring either his verbal or sacramental engagement if he think it necessary Yet if the Captive can make an escape and carry with him some Goods Bemb lib. 10. his Conscience cannot be charged with theft so as he carry away nothing but what was before his own In such Laws as arise not out of natural equity but are purposely made to avoid a greater mischief we must not rashly admit of such an interpretation as makes that act to be sinfull which is otherwise lawfull Nihil interest quomodo captivus reversus est utrum dimissus ☜ an vi aut fallacia potestatem hostium evaserit It matters not much saith Florentinus which way a Captive gets loose from his enemy whether he be freely dismist or make his escape either by force or fallacy Because the right of holding a man Captive is so a Right that in another sense it is for the most part an injury for which reason Paulus the Lawyer calls it a Right as to some certain effects but an injury as to the intrinsick nature of the thing it self From whence this also appears That a man being taken in an unjust War and brought within the Power of the
wherefore the Samnites in Livy declare Lib. 9. Lib. 8. That the spoil which they had taken from their Enemies and which by the Law of Armes seemed to be theirs they had restored Which he saith seemed to be theirs because the very Samnites themselves had before acknowledged that War to have been unjust Not much unlike is that power which the Law of Nations gives in a Contract made without fraud wherein there is some inequality to compel the Contractor to fulfil his Contract yet nevertheless he that receives more in value than what he gives See Book 2. Chap. 9. is bound though not by Law yet in honesty and conscience to even the ballance by reducing the Contract to an equality VI. Or whether by him that detains it Yea farther as though the damage be not done by our selves or if it be yet without any fault of ours yet if the thing taken away in an unjust War by another be in our possession we are bound to restore it because there can be no reason given naturally just why the right Owner should be deprived of it for he never consented to its alienation nor was their any crime committed by him nor did he receive any recompence for it apposite whereunto is that of Valerius Maximus Lib. 6. c. 5. Sub Hasta The people of Rome saith he when Claudius had publickly sold some Camerine Prisoners taken in the War although they saw their Treasuries thereby filled and their Empire enlarged yet being convinced That their General had not dealt very faithfully in their Conquest they with great diligence sought out those Captives and redeeming them restored them unto their Lands So also is that which Josephus records of Mark Anthony Ant. l. 14. c. 22. who commanded the Tyrians to restore to the Jews those Parts of Judaea which they withheld from them to release their Prisoners and to return the spoil to the right Owners Thus we may read of the Phocians That by the Decree of the Roman Senate even their publick liberty together with their Lands formerly taken from them were restored So likewise were the Lygurians sold by M. Pompilius but redeemed by the Romans and together with their Goods set at liberty The self same Decree past for the Abderites the reason being added Because the War made against them was unjust Thus Macrinus released all the Parthian Prisoners and restored all the spoil Because the Romans had unjustly broken the peace And Mahomet the Turk dismist upon this account all the Captives taken at Sancta Maria in Achaia Yet may the present Possessor of such Goods or Persons deduct so much for his either charge or labour as in probability it would have cost the right Owner to have recovered them but if he who without any default was thus possest of any thing so taken hath either consumed or alienated it he is not bound to make any farther satisfaction than he shall be thought to have been made the richer thereby CHAP. XI Moderation to be used in killing of men in a Just War I. That some acts in a just War are not internally just explained II. According to internal justice who may be killed III. That no man can be justly slain for his misfortunes as they that are forced to either party IV. Nor for faults intermediate between mischances and mischiefs this explained V. The principal Authors of a War distinguished from those that are drawn into it VI. In the Authors we are to distinguish of the Causes whether probable or improbable VII Even to those who have deserved death the punishment may sometimes be justly remitted VIII Care should be taken of the innocent that they be not unadvisedly killed IX Infants to be spared and Women if not highly criminous and old Men. X. Priests to be spared and such as addict themselves wholly to learning XI As also Husbandmen XII Yea and Merchants and such like XIII And slaves XIV And such as surrender upon equal conditions XV. They also that deliver themselves up without conditions XVI All these may be admitted to mercy unless they be very criminous which how to be taken XVII A multitude of offenders may well be spared XVIII Hostages unless in themselves faulty are not to be slain XIX That all unprofitable Combats are to be avoided I. In a just War some acts are not internally just NEITHER is that generally true that is commonly said He hazards all who what is just denies That of Cicero is much better There are some good offices to be performed Offic. l. 1. Vide lib. 2. ch 20. §. 2. 28. even to those who have injured us there is also some moderation to be used even in revenge and punishments And even in the sharpest War there ought to be some grains of mildness and clemency if it be regulated according to Christian Discipline Sen. de Clem. lib. 2. c. 4. Nay the very Philosopher hath already pronounc'd them cruel who though they have cause yet know no measure in punishing Cicero commends that golden age of the Roman Empire De Off. l. 2. Pol. 5 6. Lib. 3. the end of whose Wars were mild and gentle and never otherwise but upon necessity Aristotle notes That the punishment taken on the Thebans and Heracleans savoured more of cruelty than equity And Thucydides speaks of some that suffered punishments greater than what were fit Annal. l. 3. So Tacitus taxeth Pompey for exacting punishments far greater than the crimes deserved And in the same Book he blames Aug. Caesar that in punishing Adulteries he was more cruel than any of his Ancestors yea oft-times than his own Laws Although as Juvenal speaks in this Case Exegit autem Interdum ille dolor plus quam lex ulla dolori Concessit This Grief sometimes far greater licence pleads Than any Law to other grief concedes So Quintilian A punishment beyond what is humane is not to be exacted from any unless it be from the very worst of Parricides Lib. 26. And therefore M. Antoninus the Emperour did well when he wrote to the Senate To be careful that their proscriptions were not too severe nor their punishments too cruel Whereof Ammianus likewise complains Their rage against many was much greater than either their errours or crimes deserved It is possible saith Aristides that they who take revenge for an injury done to themselves may be unjust if they shall exceed in measure for he that in this case proceeds beyond his just bounds is the Author of a new quarrel And he that punisheth a Malefactor beyond what he hath deserved deserves himself to be punished This was Ovids opinion of a King Caede nocentum Si nimis ulciscens extitit ipse nocens He that for Blood too great revenge doth take Doth sure himself the greatest Murtherer make The Plataeans in Isocrates demand Whether it be fit or reasonable to require for so small faults so great and grievous punishments And in his second Oration for
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
wherein as Christians we stand obliged as in case it appear that the Booty so taken doth not impoverish the Commonwealth or the King that maintains the War or those particular persons that are in actual Arms against us but rather such particular persons as are innocent who likewise are thereby reduced into so miserable a condition that in case we should cast those who are privately indebted unto us into the like we should be thought unmercifully cruel Whereunto if we likewise add that the spoil we take from these contributes little or nothing either to the finishing of the War or to the enfeebling of the Enemies strength it will easily convince us that it would ill become an honest man much less a Christian to make an advantage to himself by the sole infelicity of the times For which very thing it was that Plutarch so highly blamed Crassus saying Pleraque horum ex igne belloque rapuit nihil magis lucro habens quam communes calamitates The greatest part of whose riches he gained by Fire and by War raising his private fortunes by nothing more than by publick calamity V. How a private War may be mixt with a publick But it sometimes happens that by the occasion of a publick War there ariseth a private as if a Man fall by accident amongst his Enemies and is thereby in danger of his life or Goods in which case such means as we have already granted * Lib. 2. c. 1. may lawfully be used in defence of our lives and fortunes We read that sometimes in War private profit is warranted by publick Authority as when a man having sustained some extraordinary damage by the Enemy obtains of his Prince a Commission to repair his losses by what he can get from the Enemy which also is to be limited in the same manner Lib. 3. c. 2. as pledges and such like things are that are left in gage VI. How far he stands obliged who without command hurts an Enemy But in case any Souldier or others shall in a just War set fire to an Enemies House or destroy his Fields or commit such and such like Acts whereby the Enemy is damnified without special order or command from his Superiours whereunto we must add unless it be in case of necessity or for some other just cause That man according to the opinion of our best Divines stands obliged to make satisfaction I have here added what they have omitted unless it be for some other just cause because if there be any such cause he may haply be bound to answer for it to his own Prince or State whose Laws he hath transgrest but not to his Enemy to whom he hath done no wrong Not much unlike was that Answer which a certain Carthaginian made to the Romans who demanded That Hannibal should be delivered to them We saith he are not to dispute with you Whether Saguntum were besieged by the private command of Hannibal or by the publick Decree of the Carthaginian Senate but whether it were justly or unjustly done for it belongs unto us only to call him to an account being our Subject whether he did it by his own Authority or by ours This only concerns you to enquire Whether it were lawful to be done by that League which we have made with you CHAP. XIX Concerning Faith to be kept between Enemies I. That faith is to be kept with all sorts of Enemies II. The Opinion That faith is not to be kept with Thieves and Tyrants refuted III. This Argument That such deserve punishment answered being not considerable when we treat with them as such IV. Nor will it avail to urge That the promise was extorted through fear if he that made the promise was not himself affrighted V. Or if the promise were confirmed by Oath though with men such a violation is not punishable VI. This fitted to rebellious Subjects in Armes VII A notable difficulty handled concerning promises made to Subjects in respect of the Sovereign Power Where it is shewed VIII That such promises may be confirmed by the Oath of the City IX Or it may be made to a third Person on the behalf of such Subjects X. How the Government of a State may be changed XI That by the Law of Nations the exceptions of fear appertain not to a solemn War XII This to be understood of such a fear as is acknowledged by the Law of Nations XIII That faith is to be kept even with such as are perfidious XIV But not if the Conditions are not fulfilled Or if either Party refuse to stand to any part of the Agreement XV. Nor if the thing promised be counterballanced by a just Debt XVI Though that Debt be due upon another account XVII Nor if the Promiser be otherwise damnified to the like value XVIII Or if the value of the thing promised be due by way of punishment XIX How these take place in War I. That faith is to be kept w th Enemies of all sorts WE have already shewed What and how much may lawfully be done in War simply and in it self considered We are now to consider what and how much may be done as considered in relation to some foregoing promise namely Concerning the faith which Enemies ought to keep one with another It was notably said by Silius an Italian Poet concerning a Roman Consul Optimus ille Militiae cui postremum primúmque tueri Inter Bella fidem He amongst Generals the best praise deserves Who first and last in Wars his faith preserves Xenophon in his Oration concerning Agesilaus from his Example concludes thus So great and excellent a thing it is for every man but especially Generals to be just and to be so accounted in the performance of their Oaths and Promises Leuct 4. So Aristides In the preservation of Peace and of all other publick Agreements they are ever most to be regarded that are most just There is no man as Cicero well observes but approves of and commends that affection of mind by which no profit is sought after but rather faith is preserved against profit It is the publick faith only as Quintilian the Father rightly observes that makes Truces even among armed Troops and that conserves the Right of surrendred Cities Faith saith the same Quintilian Lib. 2. c. 29. is the strongest and most indissoluble Bond of humane Society Sacra laus fidei inter Hostes Its reputation is great even amongst Enemies Fides sanctissimum humani pectoris bonum Faith saith Seneca is the most precious Ornament of the rational soul the best gift that God bestows upon Men the strongest support of humane Society It is the Cement that binds up all Traffick and Commerce between man and man Qua sine non Tellus Pacem non Aequoâ—a norunt Justitiae Consors tacitúmque in pectore Numen without her No Peace is firm either by Land or Sea She 's Justice's Mate an inward Deitie The Romans placed her in their Capitol next to