and all things are uncertain If there be no Community that can be conserved without Law which Aristotle proved by a memorable example of Thieves certainly that which binds Mankind and many Nations together hath need of Law as he perceiv'd who said Unhonest things are not to be done no not for ones Countrey Greatly doth Aristotle accuse them who when they would have no man govern among themselves but he that hath right have no regard of right or wrong toward Foreiners That same Pompey whom we named afore on the other part corrected this Speech of a Spartan King That Common-wealth is most happy whose bounds are terminated by the Spear and Sword saying That 's truly blessed which hath Justice for its bounds to which purpose he might have used the authority of another Spartan King who preferred Justice before Military Valour upon this ground because Valour must be govern'd by Justice but if all men were just there would be need of Valour Valour it self is defined by the Stoicks to be a virtue fighting for equity Themistius elegantly shews that Kings such as the rule of Wisdome requires have not a tender eye onely to one Nation committed to their trust but to all mankind being as he speaks not or Lovers of Romans but Lovers of Men Minos his name was hated among Posterity because he restrained equity to the bounds of his Empire But so far is it from Truth which some imagine that all Laws cease in War War ought neither to be undertaken but for the obtaining of right nor to be waged being undertaken but within the limits of Justice and Faith Well said Demosthenes War is against them who cannot be ruled by Judgements for Judgements prevail upon them who feel themselves weaker but against them who make or think themselves equal Arms are taken up which truly that they may be right are to be exercised with no less religion than Judgements are wont to be exercised Let the Laws then be silent among Arms that is those Civil Judiciary Laws which are proper to peace not those other Laws that are perpetual and accommodate to all times For it was excellently said by Dion Prusaeensis Written Laws indeed that is the Civil prevail not among Enemies but the not-written Laws prevail that is those that are dictated by Nature and established by the Consent of Nations This appears by that old Formula of the Romans I judge those things are to be requir'd by a pure and pious War The same antient Romans as Varro noted undertook Wars slowly not licentiously because they thought none but a pious War was to be waged Camillus said Wars are to be waged justly as well as valiantly Africanus That the People of Rome did both undertake Wars and finish them with Justice In another you may read There are Laws of War also as of Peace Another admires Fabricius a brave man and which is a rare thing innocent in War and one that believ'd an Enemy might be wrong'd What power the Conscience of Justice hath in Wars Historians frequently demonstrate often ascribing Victory to this cause especially Thence those common Sentences The Hearts of Souldiers rise or fall at consideration of the Cause He seldome returns in safety that fights unjustly Hope waits upon a good Cause and the like Nor ought any to be moved at the prosperous Successes of just Attempts For 't is sufficient that the Equity of the Cause hath a certain peculiar and that a great influence upon the Action though that influence as it happens in humane affairs is oft hindred in its efficacy by the intervention and opposition of other causes Also for the procuring of Friends which as particular persons so States have need of to many purposes much avails an Opinion and Fame of War not unwisely nor unjustly undertaken and piously managed For no man is desirous to joyn himself to such whom he supposeth to hold justice piety and faith in vile esteem When upon the grounds and reasons aforesaid I saw most clearly that there is among Nations a Common Law which availeth both to Wars and in Wars I had many and weighty causes to write thereof I saw through the Christian world such licence of going to War as even barbarous Nations may be ashamed of that men take Arms greedily for light causes or none at all which being once put on all reverence of divine and humane Right is put off even as if the Furies had commission given them to work all kind of mischief In contemplation of which immanity many good Men have gone so far as to deny all Arms to a Christian whose Religion consisteth chiefly in Charity toward all the world in which opinion seems to be sometimes both Johannes Ferus and my Country-man Erasmus great Lovers of Peace both Ecclesiastical and Civil but with that intent as I suppose wherewith we are wont to bend what is crooked to the other side that it may return into straitness Yet indeed this endeavour of too much contradiction is often times so far from being profitable that it hurts because it is easily found that excess in some sayings takes away authority for other even when they stand within the limits of truth Wherefore both Parties had need of a Moderator that it might appear Neither nothing nor every thing is lawfull And withall my Design was by my private study and diligence to advance the profession of the Laws which heretofore in publick Offices I had exercised with as much integrity as I could This comfort of my studies was left me after I was unworthily cast out of myown Countrey honour'd by so many Labours of mine Many before me have purposed to bring this into a form of Art but no man hath done it perfectly Nor is it possible unless which hitherto hath not been done with care enough the things which are by Constitution be rightly separated from Natural For Naturals because they are alwaies the same may easily be collected into Art but the things that come from Constitution because they are often changed and are divers in divers places are put without Art as other precepts of singular things Nevertheless if the Priests of true Justice would undertake to handle the parts of natural and perpetual Jurisprudence laying aside what hath its original from free will One of Laws another of Tributes another of the Judges Office another of the conjecture of Wills another of proving Facts thereupon might be composed a Body of all parts collected What course we thought fit to take we have shewed in deed rather than words this work containing that part of Juris-prudence which is by far most noble For in the first Book having first spoken of the Original of Right and Law we have examined that question Whether any War be just and lawfull After to know the difference 'twixt publick and private War we had to explain the nature of the Supreme Power what
XXII Another right of men over things proper without damage to the Owner 211 XXIII The right of Passages explained by Land and Water 212 XXIV Of passage for merchandise and of impost 215 XXV The right of staying for a time of inhabiting and having desert places 218 XXVI Of Oaths How great their virtue is even in the opinion of Pagans 220 XXVII In an oath is required a deliberate mind 222 XXVIII In what sense the words of an Oath bind 223 XXIX An Oath deceitfully procured when binding Of Josua's oath 226 XXX The words of an Oath not to be extended too far 228 XXXI An Oath binds not being made of unlawfull Matter 229 XXXII Or which hinders a greater moral Good 230 XXXIII Of Oaths about things impossible 231 XXXIV In Oaths God is named and in what sense ibid. XXXV In Oaths also other things are named with respect to God 232 XXXVI Of swearing by false Gods 234 XXXVII The Effect of an Oath 235 XXXVIII When an Oath gives 〈◊〉 right to God and Man when 〈◊〉 God alone ibid. XXXIX Of an Oath to a Pyrat oâ—… to a Tyrant 236 XL. Of an Oath to one that is perfidious 238 XLI Of the Heir's obligation ibid. XLII Two cases wherein the Obligation ceaseth 239 XLIII Of that which is done againâ—… ones Oath 240 XLIV What Superiours can do about the Oaths of their Subjects ibid. XLV What Oaths are properly meanâ—… in the charge of Christ against swearing 242 XLVI Of Faith given without an Oath 245 XLVII Of Leagues They are lawfull with Aliens from true Religion by the Law of Nature 246 XLVIII They are not universally forbidden by the Hebrew Law ibid. XLIX Nor are they forbidden by the Evangelical Law 252 L. Cautions about such Leagues 255 LI. All Christians are obliged to joyn in League against the Enemies of Christianism 256 LII If divers Confederates wage war which is to be aided 257 LIII Of the Dissolution of a League 258 LIV. Of Interpretation 259 LV. How words of art are to be interpreted 261 LVI Interpretation by Conjecture 262 LVII Some Distinctions and Rules for interpretation 263 LVIII Whether in the name of Confederates are contained those that shall be so 266 LIX One shall not wage war without leave of the other How understood And That Carthage shall be free 268 LX. Of Agreements Personal and real 269 LXI A League made with a King is extended to him being expelled not to the Invader 272 LXII To whom a promise made to the First is due when more have performed a thing together 273 LXIII How far States are accountable for damages done by their Subjects 274 LXIV Of the right of Embassages 276 LXV Among whom the right of Embassages hath place ibid. LXVI Whether an Embassage be alwaies to be admitted 278 LXVII Of not violating Embassadours 280 LXVIII The Law in favour of Embassadours binds not him to whom he is not sent 286 LXIX An Enemy to whom an Embassadour is sent is bound 288 LXX Embassadours may not be wronged by way of retaliation 289 LXXI The Companions also of Embassadours and their Goods are inviolable 290 LXXII The Right of Embassadours vindicated by War 293 LXXIII Of the right of Burial It springs from the same Law of Nations 293 LXXIV What was the first Cause of this Custom 296 LXXV Burial is also due to publick Enemies 301 LXXVI Whether burial be due to notorious Malefactors 302 LXXVII Whether it be due to those that have kill'd themselves to the sacrilegious and traiterous 304 LXVIII Of Punishments The definition of punishment and the Original 309 LXXIX Who should punish an evil-doer 311 LXXX Of the End of punishment 312 LXXXI In what sense Revenge is naturally unlawfull 314 LXXXII The Utility of Punishment is three fold 317 LXXXIII Of punishing a Delinquent for his own benefit 318 LXXXIV Of Punishment for his profit who is offended and of Revenge by the Law of Nations 320 LXXXVI The End of Punishment is also the profit of all 325 LXXXVII What the Evangelical Law hath constituted about this matter 328 LXXXVIII An Objection taken from Gods mercy in the Gospel answered 334 LXXXIX Another Objection answered about precision of Repentance 335 XC Three Inferences from the former Doctrine 337 XC Whether humane Laws that permit the killing of some men give the killers a true right before God or only impunity among men 339 XCII What acts are not punishable by men 340 XCIII That it is lawfull to pardon both before and after the penal Law 344 XCIV Causes of freeing one from punishment of Law 348 XCV Of war for punishment and whether war be just for Offences begun 350 XCVI War for violation of Natures Law 352 XCVII Three Cautions to be observed 356 XCVIII Whether war may be undertaken for Offences against God 358 XCIX Four most common principles of Religion 362 C. The first violators of these may be punished 365 CI. Wars are not justly made against them that will not embrace Christian Religion 370 CII Justly against them that deal cruelly with Christians onely for Religions sake 373 CIII Not against them who are mistaken in the sense of Scripture 375 CIV Justly are they punisht that are irreverent to the Gods they own 379 CV Of Communication of Punishment How it passeth to partakers of the fault 380 CVI. The Community or Rulers are engaged by their subjects fault if they know and do not forbid it when they ought 381 CVII Likewise if they receive them that have offended elswhere unless they punish them or yield them up 384 CVIII Whether the persons yielded up and not receiv'd remain Citizens 387 CIX That the rights of Suppliants belong to the miserable not to the guilty with the exceptions 388 CX How Subjects are partakers of the faults of their Rulers or parts of the whole and how their punishments differ 392 CXI How long the right of punishment lasts against a Community 394 CXII Whether the punishment may pass without communication of the fault Two distinctions here needfull 396 CXII None is justly punished in propriety of speech for anothers fault 400 CXV Of unjust Causes Causes of War some are justifiable others suasory 407 CXVI Wars without any cause are wild and brutish 409 CXVII Against wars which have not justifick causes or not truly such 409 CXVIII Fear of an uncertain danger no just cause of War 411 CXIX Of some other unjust causes 413 CXX Of the title of universal Emperour 415 CXXI Of the Empire of the Church 417 CXXII Of a desire to fulfill prophecies 420 CXXIII Of that which is due not by strict justice but otherwise 421 CXXIV A distinction of War unjust in respect of the cause or of some accident ibid. CXXV Of doubtfull cases Whence doubts do arise in moral matters 423 CXXVI Nothing is to be done against ones own judgement though crring 424 CXXVII How the judgement is drawn either way 425 CXXVIII In doubtful cases the safer way is to be taken Three waies to
lawful which is right and pious intirely though perhaps another thing may be done more laudably as in that saying of S. Paul the Apostle All things are lawful for me but all things are not expedient All things that is all of that kind of which he had begun to speak and would speak more So it is lawful to contract matrimony but more laudable is single Chastity proceeding from a pious design as S. Augustin discourses to Polâ—…ntius out of the same Apostle It is also lawful to marry again but it is more â—…awdable to be content with one marriage as Clemens Alexandrinus rightly explains this question A Christian husband lawfully may leave his Pagan wife as S. Augustin thought with what circumstances this is true is tâ—… proper to determine here but he may also keep her lawfully Ulpian of 〈◊〉 Seller to whom 't is lawful after appointed day to pour forth the wine If 〈◊〉 saith he when he may pour it forth 〈◊〉 doth it notâ—… he is the more to be pracâ—… But sometime a thing is called lawful not which may be done without violating the rules of piety and duty but which among men is not subject unto punishment So among many people it is lawfull to commit fornication among the Lacedemonians and Egyptians it was also lawfâ—…l to stealâ—… In Quintilian we read There are some things not laudable by nature but granted by Law as in the XII Tables The Creditors might divide the Deâ—… body among them But this signification of the word lawfull is less proper 〈◊〉 Cicero observeth well in the fist of his Tâ—…sculans speaking of Cinna To me entâ—… câ—…ntrary he seemeth miserable not 〈◊〉 in that he did such things but in that 〈◊〉 so behaved himself that it might be lawful for him to do them though indeeâ—… is lawful for none to do amiss but weaâ—… in our language calling that lawful which is permitted to any one neveâ—…theless it is received as when the saâ—… Cicero for Rabirius Posthumus thus 〈◊〉 speaks the Judges Ye ought to consider what becomes you not how much is lawful for you for if ye seek only what is lawful you may take away out of the City whom you please So all things are said to be lawful for Kings because they are exempt from human punishments as we have said elswherere But Claudian informing a King or Emperour rightly saith Have in your thought Not what you may effect but what you ought And Musonius reproveth Kings who â—…se to say This is lawful for me not This becomes me And in the same sense we often see oppâ—…ed What is lawful and What ought to be done as by Seneca the Father in his controversies more than once XXVII The effects of solemn War generally consider'd are referrd to the later sense of lawful in respect of impunity And why such effects were introduced Testimonies IN this sense then it is lawful for an Enemy to hurt his Enemy both in his person and in his Goods that is not only for him who upon a just cause vengeth war and who hurteth within thâ—… measure which we have said to be naturally granted in the beginning of its book but lawful on both sides and wiâ—…out distinction So that for that cause he can neither be punisht being perâ—…hance deprehended in another territory as 〈◊〉 homicide or theef not can War be made against him by another upon that account Thus we read in Sallust To 〈◊〉 all things in victory were lawful by the Law of War The cause why it pleased the Nations to have it so was this 〈◊〉 had been dangerous for other Nations 〈◊〉 take upon them to pronounce and determine about the Right of War between two Nations for by that means they would be engaged in the War of others 〈◊〉 the Massilians said in the cause of 〈◊〉 and Pompey That it was above thâ—… Judgment and above their power to â—…cern whether side had the juster caâ—… Moreover even in a just War it can â—…ardly be known by external marks what is the just measure of self-defense of recovering ones own or of exacting punishments so that it is much better to â—…eave these things to be examined by the Conscience of those that War than to reduce them under the judgment of others Beside â—…this this effect of licence that is of â—…mpunity there is another also to wit of dominion concerning which we shall speak hereafter As to that licence of hurting which we have now begun to handle it extendeth first to Persons of which â—…icence many Testimonies are extant in good Authors It is a Greek proverb out of a Tragedy of Euripedes That the blood of an enemy leaves no stain Therefore by the old custom of the Greeks it was not lawfull to bathe to drink to sacrifice much less in their company who had slain a man out of the time of war but in theirs that had done so in war it was lawfull And commonly to kill is calld the right of War Marcellus in Livy Whatsoever execution I have done upon the enemy the right of War defends In the same historian Alcon saith to the Saguntines I think it better for you to suffer these things than your bodies to be slain your wives and children to be dragd and ravisht before your eyes by the right of War The same elswhere when he had related how the Astâ—…penses were put to the sword addeth It was done jure belli by the right of War Cicero for Deiotarus Why should he be an enemy to you by whom be might have been killed by the Law of Wâ—… by whom he remembred he was made King and his sons And for M. Marcellus When by the condition and right of Victory we were all dead men we were preserved by the judgment of your Clemency Caesar to the Haeduans signifies They were saved by his favour when the Law of War gave him leave to destroy them Josephus in the war of the Jews It is honourable to fall in War but by the Law of War and by the hand of the Conquerour Now wheÌ„ these writers speak of the Law or right of War it appears by other places they must be understood not of that which frees the act from all fault but of the impunity before mentioned Tacitus said Causes and merits are considerd in peace in War the innocent and the guilty fall together The same in another place Neither did the right of men suffer them to honour that slaughter nor the course of War to revenge it Nor is the right of War to be taken otherwise when Livy tells how the Greeks spared Aeneas and Antenor because they had always perswaded unto Peace Cyprian Monslaughter when private men commit it is a crimo when it is publickly done 't is call'd a vertue Not respect of innocence but greatness of the cruelty gives impunity to wicked Actiâ—… So
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
deceits to the Carthaginians and Greeks who accounted it more glorious to ensnare the enemy than to beat him And then they added At present perhaps Deceit may be more profitable than valour but a perpetual victory is obteined over his mind who is forc'd to a confession that he is overcome neither by art nor chance but by plain battell in a just and pious war And in after-times we read in Tacitus That the Romans were wont to revenge themselves of their enemies not by fraud not secretly but openly and in arms Such also were the Tibarens who did agree with the enemy about the place and time of battell And Mardonius in Herodotus saith the same of the Grecians in his time XV. It is not lawful to make a traitor it is to use him LAstly to the manner of acting this is pertinent Whatsoever is not lawful for any one to do to impell or solâ—…cite him to do it is not lawful neither For example It is not lawfull for a subject to kill his King nor to yield up Towns without publick Counsell nor to spoil the Citizens To these things therefore it is not lawfull to tempt a subject that remaineth such For always he that gives cause of sinning to another sins also himself Nor may any reply that to Him who impelleth such a man to a wicked act that act namely the killing of his enemy is lawfull He may indeed lawfully do it but not in that manneer Augustin well It is all one whether your self commit a sin or set another to do it for you It is another thing if to effect a matter lawful for him one use the offerd service of a man sinning without any other impulse but his own That this is not unjust we have proved elswhere by the example of God himself We receive a fugitive by the Law of War saith Celsus that is It is not against the Law of War to admit him who having deserted the enemies part electeth ours XVI Goods of Subjects bound for the Rulers debt Naturally none is bound by anothers deed but the Heir LEt us come to those things which descend from the Law of Nations They belong partly to every war partly to a certain kind of war Let us begin with generals By the meer Law of nature no man is bound by anothers act but the successor of his goods for that Goods should pass with their burthens was introduced together with the dominion of things The Emperor Zeno saith It is contrary to natural equity that any should be molested for other mens debts Hence the Titles in the Roman Law That neither the wife be sued for the Husband nor the husband for the Wife nor the Son for the Father nor the Father or Mother for the Son Nor do particular men owe that which the Community owes as Ulpian hath it plainly to wit if the Community hath any Goods for otherwise particulars are bound as they are a part of the whole Seneca If one lend my Country mony I will not call my self his debtor yet will I pay my share He had said afore Being one of the people I will 〈◊〉 pay as for my self but contribute as for 〈◊〉 Country And Every one will owe not 〈◊〉 a proper debt but as a part of the publick Hence it was specially constituted by the Roman Law that none of the Villagers should be tyed for the other debts of Villagers and elswhere no possession of any man is charged with the debts of others no not with the publick debts and in the Novell of Justinian Pignorations for others are prohibited the cause being added that it is against reason for one to be charged with anothers debt where also such exactions are called odions And King Theodoricus in Cassiodore calls this Pignoration of one for another a wicked licence XVII By the Law of Nations Subjects are tied for the debts of the Ruler ALthough these things be true yet by the voluntary Law of Nations it might by induced and it appears to have been induced that for that which any Civil Society or the head thereof ought to make good either by it self primarily or because in anothers debt it hath also made it self lyable by not doing right for that I say are tyed and bound all corporal and incorporal Goods of them that are subject to the same society or head And it was a certain necessity that effected this because without this great licence would be given to the doing of injuries seeing the Goods of Rulers oftentimes cannot so easily come to hand as of private men who are more This then is among those Laws which Justinian saith were constituted by the Nations upon the urgency of human needs Howbeit this is not so repugnant to nature that it could not be induced by custome and tacit consent when even without any cause sureties are bound by consent alone And there was hope that the members of the same society might more easily obtain mutual right and provide for their own indemnity than foreiners who in many places are very little regarded Besides the benefit of this obligation was common to all Nations so that they which were one time grieved with it another time might be eased by the same Moreover that this custome was received appears not only out of full wars which Nations wage against Nations for in these what is observed may be seen in the forms of denuntiation and in the proposal and the decree it self but also where matters are not come to that fulness of war yet there is need of a certain violent execution of right that is imperfect war we see the same to be used Agesilaus of old said to Pharâ—…bazus a subject of the King of Persia We O Pharnabazus when we were the Kings friends carried our selves like friends towards all his and now being become his enemies we carry our selves like enemies Wherefore seeing you will be out of the things that are His we do justly oppose him in you XVII An example hereof in the Apprehension of men and of goods ONe species of that execution which I speak of was that which the Athenians called Apprehension of men of which the Attick Law thus If one have force offerd him and dy his Kinsman and friends may apprehend men till either the Man-slayers be duly punisht or yielded but it is lawful to apprehend only three men and no more Here we see for the debt of the City which is bound to punish her subjects that have hurt others â—…s tyed a certain incorporal right of the subjects that is the liberty of staying where they please and doing what they will so that they may be in servitude until the City do what she is bound to do that is punish the Guilty For though the Epygtians as we learn out of Diodorus Siculus argued that the body or liberty ought not to be
least may be omitted better and with more commendation among good men In Seneca's Troades when Pyrrhus saith No law spares a captive or hinders his punishment Agammenon replies What Law forbiddeth not Pudor forbids to be done Where Pudor or Modesty signifies not so much respect of men and reputation as of Right and Good or at least of that which is righter and better And in that sense you may often see Justice joyn'd with Pudor Plato Justice is call'd the companion of Pudor and that deservedly And in another place God fearing the destruction of mankind gave unto men Justice and Pudor the ornaments of Cities and bonds of friendship Cicero so distinguisheth between Justice and Modesty that he makes it the part of Justice not to violate men of modesty not to offend them With that which we brought out of Seneca well agrees a saying of the same Author in his Philosophic writings How narrow is that Innocence to be good according to Law How much larger is the rule of duties than of Law How many things doth piety humanity liberality justice faith require all which are without the Statute-book Where you see Law is distinguished from Justice because Law conteins that which is of force in externall judgments The same difference Aristotle intimates disputing whether the servitude be to be called just which ariseth from War Some respecting one kind of just for the Law is a certain just thing say servitude arising from war is just yet not perfectly because it may happen that the cause of Warring was unjust So also the Roman Lawyers what oftentimes they call the right of captivity they elswhere call injury and oppose it to natural equity and Seneca saith the name of servant came from injury respecting that which oft happens And the Italians in Livy retaining the things they had taken from the Syracusians in War are called pertinacious to confirm their injury Dion Prusaeensis when he had said Captives in war if they returned to their own receiv'd their liberty addes as men that were injuriously kept in servitude Lactantius speaking of the Philosophers When they discourse of offices perteining to war they accommodate their words neither to justice nor to true vertue but to this life and the custom of Commonwealths And a little after he saith the Romans did injury by Law First then we say If the cause of war be unjust although war be undertaken after a solemn manner all acts that have their rise thence are unjust by internal injustice so that they who knowingly do such acts or do cooperate to them are to be reckoned iâ—… their number who without Repentance cannot enter into the Kingdom of heaven And true Repentance if time and ability be not wanting by all means requires that he who hath given the damage whether by killing or by spoiling things or by taking the prey repair the same Therefore God saith he hates the fasts of those that detein the prisoners not justly taken and to the Niâ—…ivites their King proclames that they turn every one from the violence that is in their hands seeing this by natures light that without such restitution repentance would be feign'd and fruitless And thus we find not only Jews and Christians to have judged but the Mahumetans too Now to restitution are the Authors of war whether by right of power or by counsil bound concerning all the things that usually follow war yea such things as are not usual if they have commanded any such or perswaded or when they could hinder have not hindred So also Leaders are bound concerning the things done by their Command and all soldiers fully who have concurred to any common act as namely the burning of a town in divided acts every one for the damage whereof himself is the only cause or at least one of the causes Nor can I think that exception is to be admitted which is added by some concerning them that do service unto others if in them be any part of the fault For the fault sufficeth to restitution without deceit Some there are who seem to be of opinion that things taken in war though the cause of war was not just are not to be restored because Warriors when they enter into war against each other are understood to have allowed those things to the Takers But no man is easily presumed vainly to expose his own and war of it self is far distant from the nature of Contracts And that peaceable people might have somewhat certain which they might follow and not be entangled in war against their will it sufficed to introduce that external dominion of which we have spoken Which also the said Authors seem to determine in the Law of the captivity of persons Therefore the Samnites in Livy We have sent back say they the things of our enemies taken in prey which seemed ours by the right of War They say seemed because that war was unjust as the Sammites had before acknowledged Not unlike is this that from a contract entred without deceit wherein is inequality by the Law of Nations there springs a certain faculty of compelling him who hath contracted to fulfil his Convenants and yet notwithstanding is he bound by the office of an honest and good man who hath covenanted for more than is right to reduce the matter to equality Moreover He that hath not himself given the damage or hath given it without all fault but hath in his hand a thing taken by another in unjust war is bound to restore it because why the other should go without it there is no cause naturally just not his consent not his iâ—…l desert not compensation There is an history pertinent to this in Valerius Maximus The people of Rome saith he when P. Claudius had conquer'd the Camerini by his fortunate conduct and had sold them under the spear though they saw the treasury encreas'd with money and the bounds of their fields enlarged nevertheless because the action seemed not to be done by their General upon a clear account with very great care they sought them out and redeemed them and restored their lands Likewise to the Phocenses by decree of the Romans was also that publick liberty rendred and the fields that had been taken away And afterward the Ligures who had been sold by M. Pompilius the price being repaid to the buyers were restor'd to liberty and caâ—…e had for the restitution of their goods The same was decreed by the Senate concerning the Abderites the reason being added because an unjust War is waged against them Howbeit if he that keepeth the thing hath laid out any cost or pains he may deduct as much as was worth to the master to attain a possession despair'd of but if he that had the thing being without fault hath consumed or alienated it he will not be bound but for so much as he may
furorem possumuâ—… non insolita nec à scripturis aliena impetrare praesidia quando Apostolus Paulus sicut in Apostolorum Act. fidelibus notum est factiosorum conspirationem militari etiam submovit auxilio Augustin Epist. 154. ad Pubâ—… Neque si in illa arma scelerati homines incidissent Paulus in 〈◊〉 sanguinis suum crimen agnosceret †Acts 23. * 2. Tim. 4. 2. Rom. 13. Hist. 4. Augustin contra Faust. l. 22. c. 74. Ad hoc tributa praestamus ut propter necessaria militi stipendium prae beatur * Acts 2. 5. 11. So also Acts 28. 18. For there was no cause of death in me C. 2. 19. 20. †Justin Apol. 2. Ut autem puniantur qui non convenienter praeceptis illis vivunt nomine solo sunt Christiani quidem à vobis nos optaâ—… Eph. 2. 14. Phil. 4. 8. 1 Cor. 11. 13 14. * Id de pace quae orbi contigit beneficio Romani Imperii interpretatur Chrylost oratione Christum esse Deum Neque vero praedictum tantum est stabilem fore immotam atque inconcussam banc religionem sed cum ea adventuram orbi pacem desituras illas in singulis civitatibus plurium potentias regnaque ipsa unum fore super omnes imperium ac cjus pleraque pacem habitura contra quam ante fiebat c. vid. Euseb. 〈◊〉 praepar l. 1. c. 10. Es. 2. 4. * Lactant Quid fiet si omnes in concordiam consen serint Quod certe fieri poterit si pernicioso impio furore projecto innocentes as justi esse velint Justin. de Christianis Non pugnamus in hostes Planè ut de Essenis Philo in Orat. Omnem bonum effe liberum Nullum inter 〈◊〉 reperias qui aut sacula aut sagittas aut gladium aut galeam out 〈◊〉 cam aut scutum fabricet Nullum qui aut arma conficiat aut 〈◊〉 nas Simile est quod Chrysostomus ait ad 1 Cor. 13. 3. Siâ—… inter bomines qualis oportet dilectio nullas fore poenas capitales Mat. 5. 38 39. * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ut Lucas in Stephani oratione 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Id ita exponit Cyprianus de patientia Ut tuae oblata non repetas Irenaeus l. 4. c. 27. Tollenti tibi tunicam remitte ei pallium sed non quasi nolentes fraudari contristemur sed quasi volentes donaverimus gaudeamus Et si quis te inquit angariaverit mille passus vade cum eo alia duo ut non quasi servus sequaris sed quasi liber plaecedas Etiam Libanius qui Evangelia legerat laudat non litigantes de chlamyde tunica in orat de custodia reorum Philostrat 2. 15. L. Item si S. 1. D. de al. en jud mut causa facta L. 1. c. 45. * Justiâ—…us Apâ—…get 2. Quae dicit huc pertinent ut adversus ownes sâ—…nus pttieates 〈◊〉 minime tracundi †Just. Apol. eod De commâ—…icandi veâ—…ò facultatib nostris eam egentibus nequid ad glâ—…iam aucupandam saciamus hoe dixit Omni pe enti date c. Alioi Communicoâ—…â—…stra omni â—…genli 1 Tim 5. 8. 2 Cor. 8. 13. * Sen. de benefic 2. Dabo egenti sed ut ipse non egoam Chrysost. in loc Deus pro sacultote poscit quatenus habet quis non quatenus non habet Q100 ut secte intelligatur accedant sequentia Laudat quidem quod facultates exsuperat nempe in Thessalonicensibus sed hos Achaeos sc. non cogit idem facere Si membrum vupit talio esto * Vid. Chrysostomum dicto jam loco * Es. 30. 6. Jer. 3. 3. Praebere oâ—… contumelios Taciâ—… Terentius * Chrys 7. ad Rom. Haec egregia victoria plus illi largiri quam velit fines improbae in illo lubidinis liberalitate propriae patientiae transcendere †Idem de statuis 1. Contumelia non ab inferentis animo sed ex judicio eorum qui patiuntur aut fit aut perit * Mat. 5. 43. 44. * Cui par proselytus Levit. 19. 17 18. * Tertul. adv Mareion 4. Secundus gradus bo itaâ—… est in extraneos in proximos primus Hieronym adv Pelag dialogo 1. Praeceptum est mihi ut diligam inimicos orem pro persecutoribus Nunquid iustum est ut itae diligam quast pâ—…oximos consanguineus ut inter aemulum necessarium nulla distinctio sit * Vid. Prov. 24. 11. * Sen. de Clem. 1. Tam omnibus ignoscere crudelitas est quam nulli Chrys. 1. ad Cor. 3. 12. c. de paenis hum agens Non ex saevitia sed ex bonitate talia faciunt homines Augustin sicut est aliquando misericordia punicns ita crudelitas parcens Valentinianus Theodosius Arcadius in lege tertia Cod. Theod de defensorib Civit. Removeantur patrocinia quae favoreÌ„ reis auxiliuÌ„ sacinovosis impertinendo maturari scelera faciunt Totilas apud Procop. Got. 2. Peccare prohibere poenas peccantium in pari pono Joh. 4. 2. Exod. 34 6. Num. 14. 18. Rom. 2. 8. * Vide hac de re Cyrillum lib. 5. cont Julian Rom. 13. 4. * Mat. 21. 44. 22. 7. Luke 19. 12 14 27. Chrysost. ad Rom. 14. narratis malis ierosoly mo rum ChristuÌ„ esse qui haec secerit audi ipsum praeciâ—…entem tum per parabolas tum apertè exsertè * Chrysoâ—… 1 Cor. 4. 21. Interficiam mutilabo Est enim ut lenitatis 〈◊〉 severitaus spiritus Vide Augustin de serm Dom. in moâ—… lib. 1. alios quoscitat Gratian. 23. 8. * 1 Cor. 4. 21. 1 Cor. 5. 〈◊〉 1 Tim. 1. 20. Rom. 12. 17 18. c. * Tertul. de pat Quid mibi cum ultione cujus modum regere non possum per impatientiaÌ„ dolâ—…ris August Epist. 154. Hinc autem dictum est non resistamuâ—… malo ne nos vindicta delectet quae alieno malo â—…aimum pascit Exod. 23. 4. 〈◊〉 2 Cor. 10. 3 〈◊〉 * Chrysostomus hoc loco intelligit opes gloriam potentiam eloquentiam solertiaÌ„ â—…sationes asâ—…tationes sallacias Eph. 6. 11. Iam. 4. 1. * Antiq. l. 18. cap. 12. lib. seq †Divitis hoc â—…tium est auri nec bello sucâ—… Fagious asta batâ—…â—…phus ante dapes Tâ—…bul Lucan 〈◊〉 O prodigia 〈◊〉 〈◊〉 nunquam 〈◊〉 conâ—… paâ—… tu c. Cic. de fiâ—… 1. Ex capioitalibus odia dissilia discordiae seditiones bella nascuntur Marâ—… Tyr us Nunc omnia bellis plena ubique enim oberrant cupiditatâ—… per omnes terras excitant appetitum rerum alienarum Diogeâ—… dictum huc pertinet Non enim ex his qui polentam edunt 〈◊〉 sures existunt aut bellorum auctores Hicronymus adversus Jovinianum 2. Diogenes tyrannos subâ—…rsores urbium bellaqut 〈◊〉 hostilia vel civilia non pro simplici victu olerum pomorunique 〈◊〉 pro carn um â—…pularum
angry without injury wasting all in his way and making slaughter like wild beasts of men that one hateth nor * Diod. lib. 18. De verb. Dom. 1 Cor. 9. 7. Cap. 26. Aegid reg de act supern disp 31. n. 80. Victor de jure bel n. 22. Act. 5. 9. †Plato tells us so in his Apology And Apollonius opposed against the edict of Nero that of Sophocles Jupiter hath given me other Order * Which also Josephus ascribeth to them Antiq. 17. No wonder if we more observe those we have received of God by Moses than your Commands Adde Rab. Tanchumam citante Drusio ad lucum Actorum * i. e. In quibus Deum offensurus non es Ita Chrysostomus Sâ—…c accipe illud Hieronymi Per calcatum perge patrem declamatoriè dictum sum umque à Lurone declamatore apud Senecam Subditos esse oportet sed intra limitos disciplinae Tertull. Jecirco Romanas leges contemnimus ut jussa divina servemus Silvanus Martyr Apiid Euripidem dicenti Creonti Nonne exsequi mandata sas ipsum jubet Respondet Antigone Non imperata jure nec jus exsequi Musonius ita ait Si quaâ—… aut patri aut magistratui aut Domino turpia aut iniqua seâ—… imperanti non paret is nec inobediens est nec injuriam facit nec peccat Stob. tt lib. parent honorand * De benefic lib. 3. 20. * Lib. 3. epist. ad Minut. †Examples illustrious both of punishment and praise See 1 Sam. 22. 18 19. 1 Reg. 18. 4. 13. 2 Reg. 〈◊〉 10 12 14. Among the Christians Manuel and Georgius refâ—… the service of killing the Empress Nicetas Among the Pagâ—… are two noble examples of those that would not obey the unjust commands of Princes that of Papinian so famous and another of Helpidius in Ammianus lib. 21. Severus would not have them scape unpunished who obeyed an Emperour in killing a Senator Vide Xiphilin Tertull. de Anima Plus caeditur qui jubet quando nec qui obsequitur excusatur Vide Gail de pace pub lib. 1. cap. 4. num 14. * Augustin epist. 50. ad Bonifac. Julianus exstitit infidelis Imperator Nonne exstitit Apostata iniquus Idololatra Miliâ—…es Christiani servierunt Imp. infideli ubi veniebant ad causam Chriti non egnoscebant nisi illum qui in coelo erat quando volebat ut idola â—…lerent thurificarent praeponebant illi Deum †For Julian absteiâ—…ed not from all violence against the Christians then especially â—…hen he had gotten any colour for it as he thought Jerom to Nepotian calls him The Cut throat of the Christian Army â—…ug de Civit. Dei l. 1. c. 52. tells of a persecution begun at Antioch in his reign and a certain yong man tormented In the Martyrologies is celebrated the memory of S. Eliphius a sect and his fellows whom Julian caus'd to be beheaded Vide Joan. Antiâ—… bonum in excerptis ex MS. Peiresiano * Victor de jure bell n. 23. Quod dubitas ne seceris L. damnum de R. J. L. Liber bomo D. ad L. Aquil. L. non videtur §. qui jussit de R. I. Paul l. 5. sen. tit 22. §. 1. Leges Long. tit 96. de 〈◊〉 effoss Leges Wistgot l. 2. tit 2. c. 2. L. 8 tit 1. c. 1. †Chrysostom de providentia 3. Many magistrates accus'd for unjust slaughter have been punisht oft but never was any Executioner call'd in question for they are excus'd by the necessity layd upon them proceeding from the d gnity of the Commander and the fear of the Obeyer Ulplan out of Celsus saith a servant hath not offended who hath obeyed his Masters command Mithridates dismist the servants of Attilius being conscicus of the plot against his life u punished and the children likewise of one that had revolted from him Appian Tiber'us Gracchus was acquitted from the fault of the Numantin league because he had offended at the command of another In v lente necessitas non est Seneca * Et illud quo Philo utitur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Anual 3. Them stius in his 9. oration saith Princes are like to reason soldiers to wrath Controv. 3. 9. Lib. 22. c. 74. cont Faustum * De Civit. Dei lib. 1. c. 26. de lib. arbit l. 1. †Sil. in verb. bell 1. n. 9. concl 4. Cast. in l. 5. D. de Instit Soto l. 5. q. 1. art 7. Covar in c. pece p. 2. §. 10. Quis justius induat arma Scire nefas * Adr. quaest quod l. 2. See an example of those that followed this opinion in Scafnaburgensis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Jamb Baldus 2. Cons. 385. Sotus de Det. secr memb 3. q. 2. in resp ad 1. Vict. de jure bell u. 25. †Nec Pothinum Prolomaei satellitem Martialis cum ait Antoni tamen est pejor quam causa Pothini Hic sacinus domino praestitit ille sibi †Tertull. Caeterum suspecta lex est quae probari se non vult improba autem si non probata dominetur Achilles apud Papinium Ulyssi Quae Danais tanti primordia belli Ede libet justas binc sumere protinus irat Apud eundem Theseus Ite alacres tantaeque precor considite causae Propert. dixerat Frangit attollit vires in milite causa Quae nisi justa subest excutit arma pudor Cui par illud panegyristae Tantum inter â—…ma bona conscientia sibi vindicat ut jam caeperit non virtutis magis quam integritatis esse victoria * Herod in Jo sephus tells the Jews after an overthrow in Arabia I am willing to shew you how justly we undertook this war being compeld by the affronrs of our enemies For by the knowledge hereof you will be greatly stirred up to shew your courage Aegid Regius de act supern disp 31. dub 5. n. 85. Bannes 2. 2. 9. 40. art 1. Molina tract 2. disp 113. †Wherefore the servants of Saul more honest than Doeg would not slay the Priests of Nob their cause being unheard 1 Sam 22. 17. And Ahabs third Captain of fifty would not hurt Elij ab 2 Reg. 1. 13. And some Executioners converted to Christ afterward used not this office as unsafe Vide Martyrol 〈◊〉 l. 1. c. 7. * Deut. 17. Silv. in verb. Bellum p. 101. 7. circa fin Origen cont Celsum †Aug. epist. 70. ad Bonisac com That you may be faithful in wars if you must needs be engaged in them seck peace Epist. 205. Even in war be peaceable Belisarius in Procoplus Vand. 1. hath an excellent speech to his Soldiers of Justice in waging War Orosius saith of Theodosius that 〈◊〉 war was begun by a pious necessity ended by a divine feliâ—… and neither his fights bloody nor his victory insolent and 〈◊〉 vengefull * Vict. de ju bell n. 15. Vict. de jur bell n. 18. 39. 55. * 2. Part. 21. Syl. in v. hell p. 1. n.