petty faults with Rods of Wire Whereunto we may add that of Cicero to Brutus See to this purpose the speech of the Melanois in Guicc Lib. 17. Vid. sup Sect. 11. lib. 3. c. 11. sect 1. There is saith he a moderation to be used as well in punishing as in other things And therefore Papinianus calls punishment the valuation of a crime And †Leuct 2. Aristides saith That it is agreeable to humane nature that there should be bounds prescribed beyond which revenge should never stray in imitation of God himself who when he proceeds to Judgment is said to lay Judgment to the Rule and Righteousness to the Ballance as if he would retale it as it were by weight and measure But Demosthenes in his Epistle for Lycurgus's Children doth not approve of such an equality as is barely in weights and measures but with respect had to the purpose and intent of the Delinquent and then he concludes That within the Bounds of Merit all sins may be punished more or less so far forth as the punishment shall be thought profitable XXIX The impulsive Causes of sin are to be respected and compared together In the merit of the crime three things are to be examined First The cause that did provoke Secondly The cause which ought to have restrained and Thirdly The fitness and capacity of the person to either As to the first of these there is doubtless some cause that moveth every man to evil There is hardly any man wicked but for some end or if there be any man that loves wickedness for wickedness sake only surely he is not so properly a. man as a Devil The greatest part of Mankind are led unto sin by their affections Jam 1.15 So saith St. James Lust conceiveth and bringeth forth sin Where under this Notion Lust or Appetite I comprehend also that vehement desire of declining every thing that may hurt us which of all others is the most natural and so the most innocent Oft-times a man is almost inforced upon a sin to avoid some present danger as when to avoid death imprisonment torment or extreme poverty he doth some act of violence or injustice and then the fear of the evil that pursues him seems to render his sin the more excusable Whereupon Demosthenes inferrs That if a rich man be unjust he deserves doubly to be punished in respect of what he suffers for the like sin who is oppressed with poverty For before such Judges as have any sentiments of humanity the poor mans necessity pleads strongly for pardon whereas they who surfeiting with abundance sin merely out of wantonness can have no excuse at all for their wickedness Thus doth Polybius excuse the Acarnanae that to avoid that imminent danger that threatned them were enforced to break the Articles of their League with the Grecians against the Aetolians The more vehement the temptation is the more pardonable is the crime A Woman of Smyrna as Gellius tells the Story Gell. l. 12. c. 17. was convented before Cn. Dolabella the Proconsul of Asia for poysoning her Husband and his Son at the same time The Fact She confess'd alledging That She had good cause so to do because her Husband and his Son had betrayed and murthered her own Son by a former Husband being a young man innocent and of singular hopes which Fact was so clear that it could not be denied Dolabella calls a Council but none durst pass Sentence in so doubtful a Case for the Womans Fact being confest they thought ought not to go unpunished and yet the revenge She took for the murder of her Son appeared to be but just In conclusion Dolabella sent her to Athens to be judged by the Areopagites as being the most knowing and experienced Judges of that Age who upon a full hearing of the Cause adjourned the determination of it for a hundred years by which means they neither acquitted the Woman of her crime against the Laws nor condemned her though guilty because the violence of the temptation pleaded for pardon The less of provocation a man hath to do evil the greater is his sin Whence Aristotle inferrs That the sin of incontinence is greater than that committed through fear because it is more voluntary for what a man doth out of fear is to preserve himself from destruction and in such a Case there is a force upon the will See Prov. 6.30 31 32. But lust is conceived within us and therefore hath the more of evil because it hath a larger share of the will With whom accords Philo upon the Decalogue All other vehement perturbations of the mind are occasioned by the assault of some outward temptations which seem to happen against our will only our lusts because they are conceived within us can be imputed to none but our selves All sins saith Chrysostome merit not the same punishment but those deserve the greatest which might easiest be resisted Hence it is that in another place he inferrs That the Slanderer is a greater sinner than a Fornicator a Thief or an Homicide because these may have vehement temptations but the Slanderer none but his own Will Men do not despise a Thief if he steal to satisfie his own soul when he is hungry but he that committeth Adultery with a Woman lacketh understanding He that doth it destroyeth his own soul Prov. 6.30 32. All other appetites do tend to some good either real or imaginary those things that are really good besides virtues and their actions which cannot entice unto sin being alwayes at peace among themselves are either delectable as pleasures or such as are desirable in order to things that are delectable which we call things profitable as abundance of all outward enjoyments Those that are imaginary only and not really good are either the excellency that we think we have above others as it is separated from virtue and profit or revenge both which the more devious from Nature they are the worse they are Naturalia desideria finita sunt ex falsa opinione nascentia ubi desinant non habent Our natural wants saith Seneca are easily summed up but those that are grounded upon a false opinion are infinite St John collects all the provocations to sin under these three heads 1 Joh. 2.16 the lusts of the flesh the lust of the eyes or the pride of life the first whereof comprehends the desires of pleasure the second of profit the third of vain-glory and anger And Philo in his Exposition of the Decalogue derives all that is Evil from the desires either of Riches Honour or Pleasure Lib. 6. And Lactantius describes the office of Virtue to consist in the suppression of our anger in bridling of our lusts and in the moderating of our desires of riches For saith he almost all our unjust and wicked actions do arise from one of these affections which elsewhere he repeats XXX The Causes restraining from sin The general cause that should restrain us from
is to be esteemed beyond the thing page 162 163 To Use a mans help being offered is lawful though to him that offers it it be unlawful page 446 Usurper who page 405 An Usurper not to be killed but obliged by private men by whom he may 64 65 66. his act binds not a lawful King 180. but in some Cases his Subjects page 64 65 Usura Foenus how distinguisht by the Roman Laws page 163 Usury by what Law forbidden 162. under it what gain falls ibid. concerning it what the Civil Law hath determined 164. what the Law of Holland ibid. W. WAR and Arms distinguisht Pref. vi when justly made Pref. xi to be justly managed ibid. War defined 2. proved lawful by the first principles of Nature 11. by the Law of Nature 11 12. by right reason and by the nature of human Society 12. by sacred story 13. by the consent of the wisest in all Nations 14. not repugnant to the Law of Nations not to the Divine Law ibid. avoided by the Primitive Christians to prevent some Acts which their Religion allowed not page 26 War some lawful proved out of the Fathers 26. publick private and mixt 31. private permitted by Moses 32. after tribunals erected sometimes lawful 31 32. private in our own defence lawful 33 34. solemn and less solemn ibid. sometimes made by inferiour Officers and whether such a War be solemn or publick 35. whether made by inferiour Commanders by guessing at the Will of their Prince ibid. War to make without Commission from the Prince Treason ibid. solemn cannot be but between Soveraign Princes page 35 36 452. The War of Manlius against the Galatae Caius Caesar in Germany Octavius and Decimus Cassius whether just page 35 36 War against Superiours unlawful 54. without Cause unjust 70. Civil worse than Tyranny page 65 War should be just if we would have it prosper 70. it hath three efficient Causes Principal Auxiliary Instrumental 66. it begins where Justice ends 69. its pretences always just though its Causes sometimes unjust page 70 War caused for wrongs done or in our own defence just 70. made for others naturally lawful 66. to repair damages or to exact punishment lawful 383. for punishment only seldome just 385 386. made to lessen the power of a Neighbour Prince only unlawful 76 77. for sins against God whether lawful 386. without cause suspected to be predatory 405. the most natural is that against wild Beasts next is that against men as brutish as Beasts page 384 385 By War some things gained are the Kings page 43 44 War between Christians not to be made for the Scriptures misunderstood 391. then profitaable when our Enemies will not otherwise do us Justice 412. when unlawful though the Cause be good 409. whether it may be on both sides just 414 415. undertaken for Religion or Liberiy whether lawful page 416 War made for a single Subject not always convenient for the whole 422. for the defence of Subjects lawful ibid. for punishment seldom made by Princes of equal power page 420 The Condition of War miserable page 421 In War many changes and chances happen which cannot be foreseen page 418 War may prudently be undertaken where there is great cause and great advantage 420 421. may be in respect of Subjects on both sides just 415. denounced against Princes and against all that are under his Government 447. whether it may be made as soon as denounced and in what Cases 455. made by Pirates or Subjects have no effect of a solemn War ibid. That War is just that is made for the recovery of things taken away that is publickly decreed and solemnly denounced page 452 In War the effects are lawful i. e. not punishable 457. its licence extends to all that are found among Enemies even Strangers 458. the Innocent and Nocent fare alike ibid. its rage 459. not to be waged but with some clemency 497 498. especially amongst Christians 495. made against Walls Pillars Houses malicious page 512 In an unjust War as things so a People taken should be restored to Liberty 530. what is taken should be restored page 496 A War may be mixt in part publick in part private 435. may be made by Souldiers though wicked 431. may be made against such as sin against the Law of Nature 384. made to compel to Christianity unlawful page 389 War to be sometimes avoided by Princes for their Subjects sake 418. made to establish Peace 524 571. for revenge not to exceed a just measure page 497 498 Vnto an unâ—ust War none to be compelled page 187 War may lawfâ—lly be made for Friends and Associates 424. c. for the Subjects of another Prince 425. for any men page 424 War then just when necessary it shou'd be our last remedy page 452 Wedlock how it differs from Matrimony page 112 Of Weight or measure to exact more or less than is contracted for is Theft page 160 A Wife may rocover from her Husband what she lent him if thereby he be enriched 147. she may claim the Estate if bought with her money ibid. she hath power over her Husbands Body by the Gospel Law page 109 Wives many to have at once lawful of old ibid. whether it be lawful to forsake them ibid. in favour to them Divorce permitted to the Hebrews ibid. Wild Beasts how possest 135. by the Germans given to their Prince as all other things that had no owner ibid. in private Woods inclosed are possest ibid. whether the Dominion be lost with the possession ibid. and Fish whose they are 81. that they should be the Kings is not against the Law of Nature page 135 Will what hath no known Cause we refer to Gods will page 390 The Will in some case punishable 374. naturally mutable 379 380. of the Dead a Law page 122 The more of the Will the greater the sin ibid. The Will is moved by things really or imaginably good page 379 To have understood the Will of the Deceased creates a Right page 122 The Will exprest by some outward sign creates a guilt and makes us lyable to punishment page 383 The Will to shew her own freedom acts sometimes without any other reason page 419 420 Wise men make War by constraint Fools for delight page 421 Wisdoms chiefest part is to direct our selves in doubtful cases the next is to be directed by others of greatest learning and experience page 411 412 Wolves Peace with Sheep upon the delivery of the Dogs page 423 Women Captives how favoured by the Hebrew Laws 464. they have no guard for their Chastity 482. their Children Slaves born ibid. Women succeed in Kingdomes that are Patrimonial 127. how they are obnoxious to the licence of War 504. their Empire unknown to the Romans page 144 Women and Children to be spared in War page 504 Words signify by consent but things and acts not so 438. in Leagues taken as vulgarily understood page 190 191 Wrecks that they should be the Kings or Peoples unjust page 121 Writings are but lasting monuments of the contracts but no part of the substance page 199 In a Writing if two clauses clash and cannot be reconciled to which we should incline ibid. if its parts cannot be reconciled the latter derogates from the former page 191 Wrongs on the one side make War on the other side just page 70 X. XEnophon's institution of Cyrus page 4 Xerxes his contest with Artabazanes for the Kingdom page 132 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what page 183 Y. YEA Yea Nay Nay what it signifies page 174 Z. OF Zeal the judgment page 369 In Zealand the Vassals pay Tribute for their common fields to the State whereunto every man contributes his proportion page 138 Zeleucus his Law concerning such as drank Wine contrary to the prescription of their Physicians page 4 Zopyrus another Sinon betrayed Babylon to Darius perfidiously page 569 The End of the TABLE
Deus Where the Right is not God is not Many such like sayings we find in Procopius As that of Belisarius upon his expedition into Africk where he tells his Army That Valour never gets the Victory unless accompanied with Justice And in another Speech of his before the Battel fought near Carthage We appeal saith he to God for witness the smallest Atome of whose Power is able to over-ballance all humane strength He as we believe weighing Justly the Causes of the War will give successes to this Battel that are due to both Parties The truth of which saying the Admirable Event of that Fight did presently after undoubtedly prove Thus likewise Totilas bespeaks his Goths It cannot be saith he it cannot possibly be I say that they that use Violence and Injustice should gain Honour in Battel Sed prout vita cuique est Lib. 2. ita ei obtingit belli fortuna But according to every mans Life so is his fortune in the War It was therefore well advised by Agathias Injustice and the Contempt of God is at all times to be abhorred as dangerous but then most when the Fortune of the War is to be determined by a Battel The good success of wicked designs should not discourage us Neither should any man be discouraged by reason of the prosperous successes of some wicked designs For it suffices That the righteousness of the Cause hath a very great efficacy to excite Valour and stir up to Action although that Power as it often falls out in humane affairs be sometimes hindered and frustrated in its effects by the intervention or opposition of some other Causes Besides the Opinion that men have that the War is neither rashly begun nor unjustly managed is very prevalent to contract Friendship whereby as private men so Nations and Kingdoms reap infinite advantages For no man will willingly associate himself with those The Justice of our Cause sometimes begets friends who have no regard to Justice to Piety to Fidelity Now upon the Reasons above recited concluding with my self that there was a certain Law common among Nations guiding them as well to as in the Wars The Authors motives to undertake this work I had many and those very weighty motives that induced me to compile this Treatise of it For I very well saw throughout the Christian World so great a licence of making War and of running into Arms upon every light cause and sometimes upon none at all that even the Barbarians would have been ashamed to have owned it 1. A general licence in making War And also that Arms being once taken up there was no reverence at all had to Laws either Divine or Humane but just as if some Fury had been sent out to kill and destroy and in managing it without restraint so War being begun a general licence was granted to work all manner of Mischief whatsoever The consideration of which barbarous Cruelty gave occasion to many men not evil to teach That it is not lawful for a Christian whose Religion principally consists in promoting Love and Charity amongst all men to take Arms With whom Ferus and our Countrey-man Erasmus seem sometimes to accord both of them being great Lovers of Peace Erasmus Jo. Ferus Ecclesiastical and Civil But as I suppose with that intent only as we usually have when we bend a stick in it self crooked so far to the other side as may probably upon its return make it straight But this very design of too much contradiction is so far from doing good that it doth much hurt because that we may easily perceive that their urging of these things too far doth detract from their Authority in other things though haply true We ought therefore to moderate between these two as well that all things may not be admitted to be lawful in War as that nothing Moreover another design I had namely 2. Motive To promote learning especially in the Laws that being unworthily banished mine own Countrey which with so many of my Labours I have honour'd I might promote now by my private Studies the knowledge of the Laws which heretofore I practised in publick Offices with as much Integrity as I possibly could Many have endeavoured heretofore to reduce this into the form of an Art but none as yet have done it Neither indeed can it be done unless what no man hath yet taken sufficient care of those Laws which are established by Humane Authority be rightly separated from those that are Natural For the Laws of Nature being alwayes the same may easily be collected into an Art But those that arise by Constitution seeing that they are both often changed and are also diverse in diverse Nations are put without Art as the Collections of such things as are singular But if the Doctors of true Justice would but undertake to treat of the parts of Natural and Perpetual Jurisprudence setting aside what hath its rise from the Freedom of the Will so that one would treat of Laws another of Tributes another of the Office of a Judge another of the Conjecture of Wills and another of the proofs of Matters of Fact Then by a Collection of all these parts a Body may be composed But what Method we thought fit to use The Author's Method we have shewed rather in deeds than words in this Treatise which contains that part of Jurisprudence which is by far the most Noble For in the first Book The Subject of the First Book having discovered the Original of Right we have handled this General Question Whether there be any War that is Lawful And next to the end that the difference between a publick and private War may be the more easily discovered we thought fit to explain the Just Rights of the Supream Power what People may have it and what Kings and which of these have it either fully or in part only And again which of them may have it with a Power of Alienation and which otherwise And then we were to speak of the Duty of Subjects towards their Lawful Prince or to their Superiours Our second Book Of the Second undertaking to expound all the Causes from whence a War may arise shews at large what things are common and what private what Right persons may have over persons what obligation ariseth from Dominion by what Rule Kingly succession is guided what Right ariseth from Covenants and Contracts what Interpretation is to be made of Leagues what Force and what Interpretation is to be made of Oaths both publick and private what may be due for damages done what Sanctimony is due to Embassadors what Right to bury the dead and what the nature of punishments are and the like Our third Book treating of that which is in War lawful Of the Third and having distinguished between that which is not punishable or that which among foreign Nations is defended as lawful and between that which is altogether blameless descends
he refers to Optimacy as that of the Consuls which he refers to Monarchy were both of them subject to the power of the people Now the self same may be said in answer to all other the Opinions of those that write of Politicks who haply think it more agreeable to their purpose to gaze on the extern face and daily administration of the Soveraignty than unto the very Right of it it self XX. True examples Much more pertinent to the matter is that of Aristotle who saith That between a full and absolute Monarchy and that like unto the Laconian being but a meer Principality there are some of a Mixt kind whereof we have an example as I conceive in the Isâ—aelitish Kings who doubtless in most things governed by a full power Mixt Governments For such a King the people required as their Neighbour Nations had Supposing as Josephus testifies That if they were governed like unto their neighbours they should suffer no Inconveniencies not considering that all the Eastern Nations except themselves were under a Slavish Government So Atossa in Aeschylus speaking to the Persians of their King saith That he is not accountable to the City for what he did That of Virgil is well known Nor Aegypt nor vast Lydia Nor Medes nor Parthians thus their Kings obey Livy gives this Character of the Syrians and all the Asian people That they were a kind of men born to be Slaves Not much unlike is that of Apollonius in Philostratus The Assyrians and Medes do adore their Kings nor that of Aristotle Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy And to the same sense is that Civilis Batavus to the Gauls in Tacitus The Syrians and Asians might well serve Hist l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs Not but that there were even at that time Kings also both in Germany and France but as the same Tacitus there observes All the Asian Kings Absolute They were such as governed for the most part in a Precarious way or as I said before more by a Perswasive than by a Coercive Power We observ'd before that the whole body of the people of Israel was under their King And Samuel describing the Government of Kings sufficiently proves That against the Injuries done by them there remained no power at all in the people either to resist or revenge Which the Ancients did rightly gather from those words of King David Tibi soli peccavi Vnto thee only have I sinned because as St. Hierom upon that place glosseth David being a King stood in fear of none but God as having no other Judge but him So likewise St. Ambrose David was a King and so subject to no Laws For Kings are Free from those shackles wherewith their Subjects crimes do entangle them They Fear no punishments being secured by the power of the Empire To Man therefore he sinned not because to him he was not accountable for his Actions Apposite to this is that of Vitiges in Cassiodore Causa regiae potestatis supernis est applicanda judiciis quandoquidem illa coelo petita est ita soli coelo debet Innocentiam The cause of a King is to be referred to Gods Tribunal for from whence he derives his power to him only he owes his Innocence And in cases of such oppressions God himself prescribes the only Remedy that the people can have against their Kings namely Prayers and Tears And ye shall cry out in that day because of the King whom ye have chosen 1 Sam. 8.18 He doth not encourage them to Rebel nor doth he prescribe any Legal way of proceeding against them only they may cry unto the Lord and if he heard them not they must suffer with patience Nor doth Samuel insinuate this to the Jews as if it were nudum factum that is That Kings abusing their power would do so but as if it were Jus Regium a Right proper to Kingly Government to do so The Jews themselves grant that if their Kings did transgress those Laws which Moses prescribed unto them they were to be beaten with Rods. But this was no reproach unto them neither was it by compulsion but by a voluntary susception as a sign of their penitence Nor was it done by any publick Officer but as he imposed it upon himself freely so he chose whom he pleased to do it and prescribed both the manner and measure of his own punishment But from all Coercive punishment their Kings were so free that even that Law of Excalciation Deut. 25.9 because it was not without some reproach was not in force against them Yet notwithstanding all this there were some Cases whereof their Kings had no Right at all to judge but they were reserved to the Great Sanhedrim or Council of the 70. Elders which being Instituted by Moses at Gods special Command continued by a perpetual supply of Election until the dayes of Herod For which cause Deut. 1.17 Pâ—al 82.1 6. they are by Moses and David frequently called Gods and their Judgement Gods Judgement And those Judges are likewise said to judge not for man but for God 2 Chron. 19.6 8. Nay there is a plain distinction made between the things of God and the things of the King 2 Chron. 19.11 where by the matters of the Lord as the most Learned among the Jews do interpret it are meant the Administring of Judgement according to the Laws of God That the Kings of Judah did by themselves sometimes inflict Capital punishments I cannot deny wherein Maimonides prefers those Kings before the Kings of Israel which is sufficiently cleared by many examples both in Holy Writ and also in other Hebrew Authors But yet the Cognizance of some Causes was not permitted unto them as that of the Tribes that of the High Priests that of a Prophet For it cannot be saith our Saviour that a Prophet perish out of Jerusalem Luke 13.33 And this is evident by the story of Jeremy whom when the Princes demanded to death the King answered them Behold he is in your power for against you the King can do nothing Jer. 38.5 Jer. 38.5 Yea and in another place he that was condemned by the Sanhedrim could not be released by the King himself And therefore Hircanus Jos Ant. l. 14. c. 17. In Criminal Cases the King of Macedon's power availed nothing Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sentence against Herod advised him by Flight to secure himself In Macedonia they that derâ—ved their Pedegree from Caranus as Calisthenes in Arianus reports obtained the Government not by Force but by Law Now the Macedonians though they were accustomed to Regal Government yet had a greater smack of liberty than other Nations For it was not in the power of the King himself to take away the life of any Citizen It was the Antient custome of the Macedonians in criminal
si alitus sit ferendus est Either not to nourish a Lion or being nourisht not to provoke him It is indeed a very difficult case and will admit of a strong debate Whether Peace or liberty be most acceptable Whether Peace or Liberty be most eligible Cicero makes this question the most difficult of all others in the Politicks to be resolved Whether our Countrey being opprest by Tyranny we may attempt to redeem it although with the danger of its desolation But it is not for private men to determine what the Common Judgement of the people would be in this case but this we abominate as being grosly unjust to make our Countries Liberty a cloak for our own Ambition and to pretend to deliver her when we intend to inslave her Sylla being demanded App. Civit. 1. Why he marcht into his own Countrey so strongly Armed answered Vt eam à Tyrannis liberem To deliver it from Tyrants When he that pretended so to do was himself the greatest Tyrant Plut. Catent Major So Antiochus brought a Mighty Army into Greece alledging that he came to set Greece at Liberty when indeed it wanted none His pretence was Liberty but his Intent Tyranny Crudelitatem Damnat crudelitatem init By condemning Tyranny he trapans them into it Cicero Ep. Fam. l. 1. No alterations of Government without violent commotions It was much better Counsel that Plato gave to Perdiccas which Plato thus renders That he should attempt no more in the Common-wealth than he could justifie to his Subjects For that nothing savouring of force or violence should be obtruded upon either our Parents or our Countrey To the same sense is that of Salust Though thou couldst govern thy Countrey or thy Parents by force and correct at thy pleasure every small offence yet would it seem harsh and troublesome especially considering that no violent thing can be permanent Bello Jug nor any Mutations of Government without violent Commotions War Rapine and such like acts of hostility Not much different from this is that of Statius in Plutarch Vita Brut. It becomes not a wise or a prudent man to endanger himself in Popular Tumults amongst either Fools or Knaves Whereunto we may also not impertinently refer that of St. Ambrose To deliver the poor from oppression so it be without raising Tumults or Sedition is commendable This also will highly advance thy Credit and Reputation if thou canst rescue the poor out of the hands of the Oppressors and deliver him that is wrongfully condemned to dye so that thou do it without raising Tumults or moving Sedition Lest otherwise thou shouldst seem to do it rather out of an affectation of Popularity and Vain glory than out of Pity and Commiseration and so consequently make those wounds deeper which thou shouldest heal It was the opinion of Aquinas That the pulling down of Government though Tyrannical was sometimes Seditious Neither are we much moved to the contrary by that fact of Ehud to Eglon King of the Moabites For the Scriptures plainly tell us Judg. 3.15 That God raised up Ehud to deliver Israel What Ehud did was done by the special Warrant of God himself Neither doth it appear That this King of the Moabites had by Agreement no right of Soveraignty Nehem. 9.27 For God we read did execute his Judgements even against other Kings by such Instruments as he himself was pleased to raise up to that purpose as may be collected by Jehu against Joram 2 Kin. 9. XX. No private man to be Judge in this case But it is especially to be noted That no private person ought to determine Controversies of this nature but should rather obey the present possessor As Christ commanded to pay Tribute to Caesar †Mat. 22.20 because his Image made the Money currant which was a convincing argument that he was in full possession of the Empire at that time For the Coining of Money was ever the most certain sign of the Possession of the Empire CHAP. V. Who may lawfully make War I. The Efficient Causes of War are either the Principals in their own cause II. Or in the Cause of another III. Or Instrumental as Servants and Subjects IV. By the Law of Nature none are prohibited from War I. The principal efficient Cause AS in all other things so in Actions that are voluntary there are three sorts of Causes efficient that is to say Principal Auxiliary and Instrumental The Principal efficient cause in a War is for the most part he whose the quarrel is In a private War any private person In a publick he that hath the publick Power especially if it be Supreme Whether a War may be justly undertaken in the behalf of another not making War shall be discust hereafter In the mean time this is most certain That naturally every man hath a Right to revenge his own quarrel and for this cause were hands given unto us II. Auxiliary Neither have we a Right to vindicate our own quarrels only but we may both lawfully and laudably improve our Right to the vindication of other mens also They that treat of Offices say truly Nihil utilius homini homine altero That there is nothing so usuful and profitable unto man as another man There are several obligations wherein we stand bound to one another for mutual help and assistance For kinsmen do usually combine to help one another So one Neighbour being opprest invokes the help of another So also do Citizens the aid of their fellow-Citizens Aristotle thought it a duty incumbent to every man to assume Arms either to defend himself in case an injury were offered him or to assist his Kinsmen his Benefactors or his Companions in cases of oppression And in Solon's esteem That was the best Common-wealth wherein every man was as sensible of Injuries offered to another It was well said of Menander as if they had been offered to themselves â—â—juriarum si Improbis Auctoribus Reponeremus ultionem singuli Nâ—bâ— puâ—antes fieri quod sit alteri Inter nos juncti Conspiratis viribus Non praevaleret Innocentiae Impetus Audax Malorum Qui custoditi undique Jussique poenas quas merentur peâ—â—â—e Aut nulli penitus essent aut paâ—ci admodum Hence is that of Plautus Praetorquete Injuriae prius Collum quam ad vos perveniat Break the Neck of an Injury before it comes at us But though all other obligations should fail yet it is sufficient that we are linkt together in the common stock of humanity For ab homine nihil humani alienum Nothing that is incident to humane nature should be to any man strange Democritus tells us That it is a duty incumbent upon every man so far as he is able to succour all that are oppressed with wrong and not at all to neglect it For this saith he is both just and honest Which Lactantius thus expresseth God saith he who denyed to all
the mind as to create a Right had been inconvenient to humane Nature which cannot possibly understand them unless exprest by some outward signs whence it is that those bare internal acts are not subject to Humane Laws Not by words only But there are no signs that can so clearly demonstrate those inward acts as to render us infallible for a man may dissemble his thoughts and both mean and intend otherwise than he either speaks or by some deeds pretends to do And yet will not the nature of humane society admit that these internal acts of the mind being sufficiently exprest should have no efficacy wherefore whatsoever is so sufficiently signified shall be held for truth and be admitted of as a good plea against him that shall so express his mind which if done by words the case is plain IV. But by deeds done By deeds that is understood to be forsaken which is cast away unless it appear by some circumstance that it was so cast away only for a time and with a mind to require it again Thus a debt is said to be forgiven when the bond is delivered up to be cancel'd A man saith Paulus may renounce his inheritance not by words only but by any other indication of his will as if he who being the right owner of a thing shall knowingly contract with him that usurps it from him he may very well be judged to have released his own interest in it And why this should not take place as well amongst Kings and free people as amongst private persons no reason can be assigned The like may be said when a Prince shall give leave or command his Subject to do that which cannot with safety be done unless he be exempted from the penalty of the Law it may be presumed that he is so exempted for this ariseth not from the Civil but from that natural right which every man hath to renounce what is his own and from a natural presumption whereby every man is believed to will that which by signs he sufficiently declares In which sence that of Vlpian may rightly be understood Whatsoever is accepted in full of a Debt is a discharge where he saith It is agreeable to the Law of Nations that whatsoever a man accepts of in full of his debt is a good discharge V. And deeds not done Under things done are morally comprehended things not done being considered with due circumstances so he that is knowing and present yet is silent seems to give his consent which the Hebrew Law seems likewise to acknowledg Numb 30.5 12. that is unless by some circumstance it appear that either fear or some other accident did restrain him from speaking Things given for lost cease to be ours so is that given for lost whereof there is no hopes of recovery as a Lamb in the paws of a Lyon So if a Merchant suffer shipwrack his Goods cease to be his own though they be afterwards driven to shore yet not immediately as Vlpian notes but when he gives them for lost and useth no outward means to recover them For in case he send out and make enquiry after them or promise a reward to those that shall find and restore them the case is otherwise to be judged So he that knows his own things to be by another man detained and makes no claim unto them in a long time unless some cause do manifestly appear seems to do it to no other purpose but to shew that he is willing to renounce them And this is it that Vlpian elsewhere intends where he saith That an house possest for a long time by another and no claim made nor rent demanded for it Int. mony long forborn presum'd to be forgiven seems to be deserted by the right owner To exact Interest long since due saith that good Emperor Antoninus is hardly just for the not demanding it in so long a space makes it probable that thou wert willing to remit it and that by not so much as demanding it thy purpose was to make thy self the more beloved and honoured and thy Debtor the more thankful Something like unto this will appear in custom for even this setting aside the Civil Laws which are willing to admit it though limited to a certain time and after a certain manner may be introduced by a people that are Subjects being long tolerated by him who hath the Supreme Power But how long time is required to entitle it to the effects of a just right That silence should argue a consent two things necessary Vide infra Bo. 2. c. 22. §. 11. is not determined but left Arbitrary yet so much is required as is sufficient to signifie a consent Now that silence should be of so great force as to justifie our presumption of a Dereliction two things are requisite First That he that is silent knows that he hath a Right for him that knows it not silence cannot prejudice Secondly That his silence be free and voluntary and not occasioned by fear or any other such cause which if it appear makes our conjectures at the Will of no force VI. Of what force time without possession is to prove a Dereliction That both these therefore may be thought to concur though other conjectures may avail yet is that of time most prevalent For in the first place it is hardly possible that in a long time a man should not by some means or other arrive to the knowledg of his own Right time usually administring many occasions to the discovery of truth Now if the right owner be present much less time sufficeth to ground our conjectures than if he be absent setting aside what is determined by the Civil Laws So fear once imprinted cannot suddenly be cast off yet can it not be perpetual length of time supplying us with many occasions and remedies both by our selves and from others against fear and for providing for our own safety even by going out of his dominions whom we fear or at least by making our protestation concerning our Right or which is better by offering to refer our cause to indifferent Arbiters VII Time out of mind what it is But because that time which exceeds the memory of man is in a moral sence infinite therefore if claim be not made within such a time to any thing out of possession it is a sufficient presumption that it is forsaken unless some very strong reasons be brought to the contrary And here it is very well observed by our most prudent Lawyers That Time out of mind is not altogether the same with a Century of Years Time out of mind not the same with a Century of years though not much different from it Cambd. Eliz. an 1600. though it be true that there is not much difference between them For one hundred years is commonly reputed the term of a mans life which doth well nigh make up three Ages or Generations which the Romans seem to object against Antiochus
to our Ancestors for them it remains that the succession should pass to him that was dearest to the person deceased which is presumed to be his nearest Kinsman who is as it were his own Flesh Prov. 11.17 or his Brother Deut. 15.11 For our love to our kindred should be proportionable to the nearness they are unto us in blood so that after our Parents they are best to be provided for who are by nature in the nearest relation unto them And therefore among the Grecians as Isaeus tells us The Goods of the deceased did alwayes descend unto the next of kin Whereunto he adds What can be more just than that the estate that was a kinsmans should descend unto a kinsman How well would this conserve Humane Society saith Cicero and promote the honour of private Families if the nearer any man were allyed unto us so much the more benign and bountiful we would be unto him Next unto our children the same Cicero placeth our loving kindred who as they are nearest so ought they to be dearest unto us and to provide for these especially is a debt that we owe them not by Commutative Justice but by Distributive as being most worthy for the honour that is due unto our own blood And therefore the same Cicero speaking elsewhere of that natural affection which every man bears to his own Relations tells us That from thence ariseth the Testaments and Legacies of dying men It being much more equitable to leave our estates to our own kindred than unto strangers This is the Charity that is most acceptable to God Esay 58.7 De Off. l. 1. c. 30. as Esay tells us To feed the hungry to clothe the naked and that we hide not our selves from our own flesh And St. Ambrose highly commends that liberality that is shewn to our brethren and kinsfolks as being next in blood to us Now that succession that thus descends from a person dying Intestate is but as it were a silent Testament which the Laws of Nature and Nations make Authentick by guessing at the will of the deceased Thus Quintilian also Next unto them who claim a Right by the Testators Testament are his kindred in case he dye Intestate and Childless not because the Goods of the deceased are in Justice due unto them but because being deserted and as it were left without any certain Owner none can pretend so much right to them as they being the next of kin And what hath been said of Goods newly purchased by the person dying Intestate That they naturally descend to his nearest Relation may as truly be said of such Goods as descend unto him from his Father or Grand-father in case neither they from whom they descended nor any of their children do survive to whom in point of Gratitude they should return XI Diversity of Laws as touching succession Now though what we have here said be most agreeable to Natural Conjectures yet are they not by the Law of Nature necessary wherefore from divers causes moving mens wills successions do usually vary according to the diversity of Agreements Laws or Customs rationally grounded some whereof will admit of substitution in some degrees others not The Ancient Germans were altogether ignorant of that kind of succession which we call Representative even among their children as that the Eldest Brothers Son should succeed in the room of his deceased Father which Right first took place in France by an Edict of Childebert and was first introduced into those parts beyond the Rhine by Otho So the Ancient Scottish Right of succession went according to the sole proximity in blood Pontanus 7. Danicor and not by substitution it being so decreed by the King of England who was chosen as Arbiter to decide that difference In some places regard is had to the first Purchaser in others this is neglected There are some Countreys where the first-born carries away the greatest part of the estate as among the Hebrews but in some others all the Children share alike In some the kindred by the Fathers side only succeed in others those by the Mothers have an equal portion In some regard is had to the Sex in others none at all In some the kinsfolks in the next degree only are admitted in others they admit those in degrees more remote To trace all would be tedious neither is it my purpose so to do But this we must grant That where the deceased hath declared nothing of his Will it must be presumed that the Estate should pass as the Law or Custome of the place doth order it but not so much by the power of the Empire as by the force of this Conjecture which also takes place against those in whom the Supream Power resides For it is very probable that what they by their Laws command or by their Customs approve of in their Subjects the same in their own affairs they hold to be most Equitable so as no great damage ariseth to them by it XII How succession to Kingdoms patrimonial ought to be guided Daughters capable to succeed in Egypt and Britain As concerning the Succession to Kingdoms we must distinguish between those that are Patrimonial and in a full and absolute manner possest and those that are held in such a manner as pleaseth the People The former sort may be divided even between the Sons and Daughters as in the Kingdoms of Egypt as Lucan testifies Nullo discrimine Sexus Reginam scit ferre Pharos In Aegypts Throne Difference of Sexes there is none The like doth Tacitus record of the Brittish Empire In Asia after Semiramis Neque enim Sexum in Imperiis discernunt Tac. many Women were permitted to Reign saith Arrianus as Nitocris in Babylon Artimissa in Halicarnassus and Tomyris amongst the Scythians yea and such Kingdoms may be divided as in Asia all the Brothers Reign together though one only hath a principal Right to the Crown which Custome the Empress Irene would without any precedent have introduced into the Constantinopolitan Empire in the Reign of Andronicus Palaeologus as Gregoras notes That saith he which is most strange and to be admired was That she was not willing Lib. 7. that any one should obtain the whole according to the Ancient Custome of that Empire but according to the Examples of the Western Princes the Cities and Regions should be divided amongst her Sons that so each of them might hold his Kingdom as his Patrimony just as the estates of private men are divided among their children so that each part of the Empire should descend perpetually to each of her Sons and to their Heirs after them For being her self of a Western Extraction she indeavoured to introduce their Custom without example Neither are adopted Sons less capable of Succession by guessing as the Will of the Intestate than true Sons Thus did Hyllus the Son of Hercules succeed to Aepalius King of the Locrians by Adoption Strab. l. 9. as also did Molossus the Bastard in the
suum cuique ita tribuit ut non distrahatur ab ullius personae justiore repetitione And this I approve of to be Justice which so gives to every man his own that it be not withheld from the juster claim of any other person that hath a right unto it Now his must needs be the juster title that claims by a right as ancient as propriety it self Whence it likewise follows That he that ignorantly accepts of that from another in trust which afterwards he knows to be his own cannot be bound to restore it And the case which the same Tryphoninus puts concerning Goods deposited by him whose whole Estate was before confiscate is better determined by this rule than by that which he there produceth concerning the profits gained by punishments For if we look strictly to the nature of the propriety it matters not whether it arise from the Law of Nations or from the Civil Law for either way it carries with it all things natural unto it self whereof this is one That every person being possest of another mans goods is bound to make restitution thereof to the right Owner And this is the meaning of Martianus where he tells us Res condici possunt ab iis qui non ex justa causa possident that Goods may by personal actions at Law be required from those who without any just cause are possest of them And from hence also springs that in Vlpian He that finds what is anothers is so strictly bound to restore it that he cannot so much as require a reward for the finding of it but he is to restore it with its fruits if any be saving only to himself his reasonable charges II. Of the profit of what belongs to another Of things not extant the Law of Nations runs thus That if another be enriched by what is mine I not enjoying mine own he stands obliged to restore to me so much as he is made the richer by what is mine Because as to that which he hath gained by what is mine he hath the more and I for want of what is mine own have the less by so much as he hath gained For dominion was therefore generally agreed on that every man according to his proportion should enjoy his own Contra naturam est Cicero Off. 3. ex hominis Incommodo suum augere Commodum For one man to enrich himself by that which is another mans loss is unnatural saith Cicero And in another place That we should build up our own Power Fortunes or Wealth upon the ruine of other mens nature it self will not permit There is so much of natural reason in this saying that the Lawyers are enforced to decline the prescript Rules of their Laws and to determine many Cases by this of equity as being the most convincing A Contract made by a Servant being a Factor shall bind his Master unless Proclamation be first made that no credit shall be given unto him But yet although such Proclamation be made if that Servant makes any profit thereby either to himself or puts it to his Masters account it shall be judged a Fraud Videtur enim dolum malum facere qui ex aliena jactura lucrum quaerat For he seems to deal deceitfully that makes himself rich by another mans loss Where the words Dolus malus signifie whatsoever is repugnant to natural right and equity If a Wife shall give unto her Husband money which by the Law she may require of him again the Wife shall have either a personal Action against her Husband or shall relieve her self by that which was bought with her money Because it cannot be denyed but that the Husband is made the richer by it and therefore enquiry shall be made what he possesseth that was bought with her money So again if thou hast spent or otherwise disposed of money which my Servant hath stoln from me conceiving it to be his I have a good Action against thee for this reason because my Goods came into thy possession without any just cause Pupils according to the Roman Laws are not bound to pay what they borrow yet if it appear that they are the richer by what they borrowed an Action shall lye against them So likewise if thou contractest with my debtor not as mine but supposing him to be another mans and borrowest my money of him Thou standest bound to pay me not because I trusted thee with my money which could not be without mutual Consent but because my money coming into thy possession it is both just and righteous that thou shouldst restore it to me as to the right Owner Our modern Lawyers do prudently judge of other the like Cases by these as namely that he whose Goods whilst he lay concealed had been sold when he might have had an exception should be admitted to receive the money that was raised by the sale of them And that he that accommodates the Father with money for his Sons maintenance if the Father be not able to discharge the debt should have his Action against the Son if he enjoy any Goods that were his Mothers These two Rules being throughly understood may guide us to give satisfaction in such Cases of Conscience as are usually by as well Lawyers as Divines proposed III. He that useth anothers thinking it his own not bound to restore if the thing perish For in the first place it hence appears That he that is possest of what is anothers yet thinks it to be his own is not bound to make any restitution if the thing it self so possest do perish because he hath neither the thing it self nor any gains by it But he that knowingly possesseth what is anothers is bound not only by reason of the thing it self but for his fact in detaining it IV. Yet is he bound to restore the fruits in being if any be Secondly He that through Ignorance possesseth anothers right is bound to restore not only the thing but the fruits of the thing that are extant The fruits I say of the thing but not the fruits of his own labours For though without the thing those fruits could not be perceived yet are they not due to the thing it self which without his labour could not have produced them Now the ground of this obligation ariseth from propriety for he that is the Owner of the thing is naturally the Owner of the Fruits arising from the thing V. Yea and those that are consumed unless otherwise he had not spent them Thirdly He that unknowingly possesseth another mans Goods is bound to make restitution both of the thing and of the fruits that are spent if it appear that he must otherwise have spent as much of what was his own because he is by that so much the richer This Suetonius highly commends in Caligula That those whom he restored to their Kingdoms he likewise restored to the Fruits and Profits of them for half the time they stood exiled VI. But not for those which he
of some Fact yet so as that some effects remain to another Such as to things is the concession of the use of them which is called lending And as to Facts the performance of some work that is costly or obligatory which is called a Mandate or Charge whereof one species is something deposited or committed to our trust as namely our labour in the keeping of the thing Now like unto these Acts are our Promises of these Acts but that these as I have already said do extend to the time to come which also we would have to be understood of those Acts which are now to be explained III. And into such as are permutatory Of such Acts as do infer Profit by exchange some divide and dissipate the parts others unite them and so introduce Communion Those which divide and separate the parts the Roman Lawyers rightly distinguish into these three heads Do ut Des Facio ut Facias Facio ut Des. First when we exchange one thing for another the agreement runs thus I 'll give you this if you 'll give me that 2. When we truck Deeds then it runs thus I 'll do this for you if you 'll do that for me The 3d. is mixt as when we agree That if I do this for you then you shall give me that as the price or reward of my pains But the Roman Lawyers do exempt from this Division some Contracts which they call Nominati not so much because they have proper names for so have those Contracts which are made by exchange also which they will not admit amongst their Nominate Contracts But because by reason of their more frequent and ordinary use they had received some certain force and were of such a Nature that though nothing at all had been particularly said yet by their very name they might have been sufficiently understood Hence it was that to those there were certain set forms of Actions appointed whereas to others that were less ordinary that common form was not sufficient But the plea must be made in a form fitted to the fact and therefore it was said to be in prescript words Neither is there any other cause but this of frequent use why in these nominate conventions if some things requisite to a Contract were by both parties assented unto As in the sale of any thing if the price were on both sides agreed on yea though the matter were yet entire that is if there were no mony paid nor any thing performed on either side yet was there enjoyned a necessity of fulfilling the Contract on both sides whereas in Contracts not so frequent whilst things stood entire and nothing on either sides performed there was indulged unto them a liberty to retract that is to say they might without any penalty revoke For the Civil Law restrained all coercive power from such Contracts and left them wholly to the Faith and Honesty of the Contractors But the Law of Nature takes no cognizance of these distinctions for neither are those Contracts which they call Innominate either less natural or less ancient Nay even Bartering which they reckon among those that are Innominate is both more simple and more ancient than those made by bargain and sale Thus Tacitus testifies of the Germans That they used the more simple and ancient way of Traffick that is by exchange of Commodities For as Servius rightly observed Our Ancestors did only exchange one thing for another How much more happy was that Age saith Pliny when men exchanged Goods for Goods the Native Commodities of one Country for those of the growth of another The like he relates of the Seres a people of Scythia Who having exposed their Native Commodities to sale on the farther bank of the River they take away what they find to be set by it if they are pleased with the exchange Which kind of bartering of Commodities is yet in use in some parts of Africk We therefore taking Nature for our best guide do reduce all diremptory Contracts without taking any cognizance of that Roman distinction of Nominate and Innominate agreements unto these three heads before named When we give to receive we either barter one thing for another which doubtless was the ancient way of Traffick or we receive mony for mony as by Bills of Exchange or we receive goods for mony as in the case of buying and selling or we receive the use of a thing for another thing or the use of one thing for the use of another or the use of a thing for mony as in things let and taken to hire By the use of things we are to understand not only the bare use of a thing but also the fruits profits or proceeds of it whether temporary personal hereditary or any other way however limited or circumscribed as among the Hebrews that which was held until the next Jubilee Some things are given that after some Intervals of time are to be restored either in kind or to the same value as in things that are lent and this kind of Permutation is chiefly used where the things exchanged do consist in number measure or weight whether it be mony or other things The exchange of deeds for deeds do infinitely vary according to the no less infinite variety of humane actions But when we do that we may receive it is either work done for mony as when for our daily labour we receive wages and this also is a kind of letting our selves to hire for profit in our several callings Or when by our voluntary act we undertake to secure another mans goods from all casualties or contingent misfortunes Ensurance which manner of contract was hardly known to former ages though now of frequent use or when we do somewhat to receive either things or the use of things for our pains IV. As into such as are communicatory But such Acts as are communicatory do contribute either deeds or things or on the one side things and on the others deeds towards some publick benefit All which are comprised under the notion of Society or Confederacy under which also we comprehend that of war when private men combine together to equip a Fleet at their own charge against Pyrates or against such as invade them and such a combination is vulgarly called the Admiralty V. Acts mixt are either so principally But such Acts as we call mixt are either principally and originally so or are made so by the accession of some other As if I shall knowingly give more for a thing than it is worth or than I can buy it for of another it is a mixt Act partly a Gift and partly a Buying So if I do contract with a Goldsmith for so much mony to make me so many Rings of his own Gold it is a mixt Act for I buy the Gold and hire the Workman And thus it happens also in Societies as that one part should contribute deeds and mony but the other mony only So likewise the grant of
or against service and money so that they may answer one another as it is usually said Par pari datum hostimentum est opera pro pecunia To give like for like is to even the scales But this may be done diverse wayes for either service may counterballance the bare use of money in which case the principal stock whether preserved or lost is entirely his gain or loss that owns it or the work or service may counterballance the whole stock of money in which case he that doth the work is partaker of the whole stock In the former of these cases the work is set against not the stock but the danger of losing it or the gains that probably might be expected from it In the latter case the price of the labour is added unto the stock of money and he that performs it shall have a share in the stock equivalent to it But that either of the parties associated should share in the profit and yet be indemnified in case of loss is preternatural to societies yet such an Agreement there may be without injury As when there is a mixt contract partly by the society and partly for ensurance wherein such an equality may be observed as that he that assumes to make good the loss shall receive a greater proportion of the gain than otherwise he should have had But that any man should bear the loss that partakes not of the gain is inconsistent with a society whose principal end is common profit without which it cannot consist Now whereas the Lawyers say That where the proportions are not expresly named they are to be understood as if they were equal this holds true only where other things contributed are also equal XXV Of Naval Societies Where a Fleet is sent out by the joint Stock of a Society against Pyrates there the common Profit is the common Defence and sometimes the Prizes taken from the Enemy And then the Ships and all that are in the Ships are to be apprized and drawn into one gross summ out of which all charges and damages are to be deducted and born by the Owners of the Ships and Goods according to the parts they have in that summ and among those charges that of the wounded is to be reckoned And what we have hitherto said we judge to be most agreeable to the Law of Nature XXVI The Law of Nations takes no notice of Inequalities if consented unto Neither do the Voluntary Laws of Nations alter any thing of it except only in this That where the Contributions are unequal yet consented unto if no lye be in the case nor any thing concealed which should have been declared in all external Actions they shall be held as equal So that as by the Civil Law before that Constitution made by Dioclesian no action would be admitted of in a Court against such an Inequality so now by those that are consociated by the sole Law of Nations no exaction or constraint can be admitted for that cause Of this opinion was Pomponius That naturally in buying and selling it was lawful for one man to circumvent another where the word Licitum is not the same with Fas but it was so permitted And how this is said to be Natural that there was no Remedy provided against it for him that was willing to justifie him by his Agreement In which sense that is termed Natural in this and some other places which is every where customarily received In which sense St. Paul saith that some men are naturally vain 1 Cor. 11.14.13.1 and that it is against nature that a man should nourish his hair when it was only against Custome and that not of all but of those Nations wherein he had lived So the same Apostle speaking not in his own but in the person of the Romans with whom he converst saith Eph. 2.3 That they were by Nature the Sons of wrath so that Nature is nothing but Custome or that which hath been of long continuance In which sense Galen is to be understood 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where he saith That Custome is an acquired or adventitious Nature So likewise Thucydides Humana natura Legum victrix Humane Nature cannot be bound up by any Laws So the Grecians called both Vertues and Vices 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when by long Custome they are made natural unto us Now how great the advantage of such a Law if introduced would be to the General Peace is evident for it would prevent infinite contests which would arise concerning the uncertain prizes of Commodities which could not possibly be determined or avoided where there was no common Judge if every man might break off from his agreement upon pretence of such an inequality Haec est Emptionis venditionis substantia say the Roman Emperours calling a perpetual Custome by the name of Substance This is the perpetual manner of buying and selling the buyer beating the price as low as he can and the seller drawing up the buyer as high as he can till at length they agree in an equal and just value And Seneca respecting this very Custome saith What matter is it what any thing cost if the buyer and seller are agreed about the price He owes nothing to the seller that gets a good bargain And much after the same Copy writes Andronicus Rhodius That which by the mutual consent of the Contractors is gained is neither unjust nor should it be amended For the Laws do indulge a licence in these things And he that writes the Life of Isidore calls the selling of any thing at too dear a rate or the buying of any thing at too cheap a rate An Injustice tolerated by the Law Harum rerum licentiam Lex dedit saith Andronicus Rhodius The Law gives a Licence in these things But yet such a permission it is as will at length undermine and easily pervert Justice CHAP. XIII Concerning Oaths I. The great Authority given unto Oaths by the Heathens II. Great deliberation required in him that would take an Oath III. Oaths oblige in that sense which he to whom they are made is thought to understand them IV. An Oath procured by Fraud when binding V. The words of an Oath not to be wrested beyond their ordinary sense VI. An Oath binds not to things unlawful VII Nor to things that impede a greater moral good VIII Nor to things impossible IX What if the Impossibility be but for some certain time X. To be sworn by the Name of God and in what sense XI By other things in respect to God XII It is an Oath though it be sworn by False Gods XIII The effects of an Oath whence ariseth a twofold obligation one at the time of the taking of it and another after This explained XIV When by an Oath a Right is gained to God and Man and when to God only XV. The opinion That an Oath given to a Pyrate or a Tyrant binds not before God refuted XVI Whether an
fitter opportunity to treat hereof when we come to speak of such accidents as usually happen in War CHAP. XVI Concerning the True meaning and Interpretation of Leagues and Promises I. How Promises do outwardly bind II. The words to be understood as vulgarly taken unless strong Conjectures lead us otherwise III. Words of Art according to Art IV. Conjectures useful where the words are either ambiguous or seem to be repugnant or offer themselves freely as V. From the Subject matter of the Promise VI. From the effect VII From things conjoyned either in beginning or in place also VIII Whereunto appertains that conjecture that is drawn from the reason moving and when and how that takes place IX Of the large and strict signification of words X. The distinction of Promises into favorable burthensome and mixt or middle XI Concerning the acts of Kings or people the difference of those Contracts which oblige in equity and of those that oblige in strictness of Law rejected XII Out of these distinctions some rules are formed that will guide us in our interpretations of Promises and Contracts XIII Whether under the name of Associates those in present or those also in future be comprehended and how far XIV How these words are to be understood that one party shall not make War without the approbation of the other XV. Concerning these words that Carthage shall be free XVI What Contracts are to be accounted personall and what real explained by distinction XVII A League made with a King is in force though that King be expelled his Kingdom XVIII But not as to him that usurpeth the Kingdom XIX A Promise made to him that shall first do a thing if that thing be done by many at once to whom is it due XX. A Conjecture freely offering it self may either be extended and in what cases XXI Concerning the fulfilling of a command not directly in kind but in another kind as good or better XXII Or Contracted and that either from some Original defect in the Will which also may be collected either from the absurdity that will ensue XXIII Or when that which was the sole cause exciting the will shall cease XXIV Or from the defect of the matter XXV Observations upon the aforesaid conjectures XXVI Or from the repugnancy of some emergent case with the Will which may be collected either as being unlawful XXVII Or when by reason of that act some great damage or charge ariseth to him that promiseth XXVIII Or by some other signs as when the parts of the writing do clash one against the other XXIX By what rules then we are to steer our conjectures XXX That in a dubious case a writing is not necessary to perfect a Contract XXXI That the Contracts of Kings are not to be interpreted by the Roman Laws XXXII Whose words are most to be observed his that offers a condition or his that accepts of it explained by a distinction I. How Promises bind externally IF we respect the person alone that promiseth he is obliged to perform that freely whereunto he was willing to be bound What Cicero saith in this case is true * De off l. 1. In fide quid senseris non quid dixeris cogitandum In things depending upon faith what thou meanest is more to be considered than what thou saiest But because our inward thoughts are not discernible and that there would be no obligation at all by Promises were every man left at liberty to frame what interpretation he pleased of them therefore some certain Rule must be agreed upon whereby we may know to what our Promises do bind us and surely natural reason will inform us That he to whom any thing is promised hath a power to enforce the Promiser to that which his Promise rightly interpreted doth suggest For otherwise no treaty would have an end which in things appertaining to Morality is held impossible And perhaps in this it was â—hat Isocrates treating of agreements in his prescription against Calimachus saith We men do all of us whether Greeks or Barbarians dispatch affairs using this common rule hence it was that in ancient Leagues this form was usual saith Livy Without any evil fraud according to the usual sence and true meaning of the words here at this time Thus do the Hebrew Doctors upon the 30. of Numbers interpret Vows in that sence as the words are commonly then understood The best rule of interpretation is that which guesseth at the will by the most probable signs Now these signs are of two sorts as words and other conjectures and these considered sometimes a part and sometimes conjoyned II. According to the sense of the words if other conjectures do not hinder If there be no conjecture that guides us otherwise the words are to be understood according to their propriety not that which is Grammatical or Primitive but that which is vulgar and most in use Quem penes arbitrium est jus norma loquendi Which givâ— at pleasure Rules and Laws to speech It was very well said by Procopius Vand. l. 1. Long time doth not alway preserve words in the same signification as they were at first given For the very things themselves are turned in sense according to mens pleasure without regard to those names that were originally imposed on them It was but a simple refuge that the Locrians made use of against Perjury when having put some of their enemies earth into their Shooes and carrying some heads of Garlick covertly on their shoulders they sware they would keep the Articles of the League which were very grievous so long as they carried those heads on their Shoulders and trod upon that earth But having cast away the earth out of their shooes and thrown away those heads of Garlick from their Shoulders they thought themselves absolved from their Oaths which story we find in Polybius not much unlike is that of the Boeotians in Thucydides Lib. 12. Who having promised to restore a certain City thought it sufficient to preserve their faith if they restored it not standing but demolisht So Sultan Mahomet having taken Euboea cut the Governours body asunder whose head he had promised to preserve But as Cicero well observes this is not a way to prevent Perjury but to confirm it III. Words of Art according to Art Referent ad flatum finitivum If in a League there be an occasion to make use of Terms of Art which the people understand not those terms are to be defined and explain'd by the most skilfull in that Art as what Majesty is what Parricide c. wherewith Rhetoricians use to limit the matter treated of For what Cicero saith is very true That the terms of Logick are not vulgar but proper to themselves only as indeed are the terms of every art As when the word Army is used it is to be understood of such a number of Souldiers as dare openly invade anothers Dominions For Historians do distinguish between those
that make spoil of anothers Territories secretly and like Robbers and those that do it openly with a just Army Now the best way to judge what numbers make an Army is by the strength of him against whom it is sent out In Cicero's account Six Legions with Auxiliaries was an Army Polybius was of opinion that One hundred and sixty thousand Romans and Twenty thousand of their Associates made a compleat Army but a lesser nember may also sometimes do it Vlpian gives him the title of General that had the charge of a Roman Legion with some Auxiliaries Which as Vegetius expounds it consisted of Ten thousand Foot and Two thousand Horse Livy seems to contract an Army to Eight thousand The like may be said of a Fleet which a certain number of men of War make up sometimes more sometimes less A Fort is a place so fortified that it may hold out against an Army for a time Arx from arceo to repel or drive away because by forts the enemy is restrained and driven back IV. Interpretation by conjectures Conjectures are useful when words or sentences will admit of diverse fences which Rhetoricians term Amphibologies but Logicians do more subtilly distinguish for if one word will admit of diverse significations they call it an Homonymy if a sentence will admit of a double sence they term it an Amphiboly So likewise when in any Contrcts therer appears any seeming repugnancy Then must we fly to conjectures as also where its several parts seem to clash one against the other we must by guessing at the sence reconcile them if possibly we can but if not then shall that be admitted which pleased the Contracters last Because it is not possible that at one and the same time the will should imbrace two contraries and in things that depend upon the will the latter act derogates from the former whether it be the act of one Party only as in a Law or a Testament or of more as in Contracts or agreements in which cases the evident obscurity of the words and sentences do justifie our conjectures Sometimes again the conjectures themselves are so plain and evident that they carry us to a sence contrary to those of the words The common heads whence these conjectures arise are chiefly either from the matter or from the effect or from other things conjoyned V. From the matter First from the matter as the word Day if a truce be made for Thirty days ought to be understood of natural days but not of Civil being most agreeable to the subject matter So the word donare i. e. to give freely is taken to transact according to the quality of the affairs The word Arms sometimes signifying instruments of War and sometimes armed Souldiers is to be understood in such a sence as is most congruous to the matter whereunto it is conjoyned So when men are promised to be delivered it is to be understood of living men not of dead contrary to the Cavil of the Plataeans So where Souldiers are required to lay down their Iron or Steel it is enough if they lay down their weapons and not their Steel Buttons as Pericleâ— would have it And by a free departure out of a City is meant a safe conduct to the place agreed on contrary to that fact of Alexander And by leaving half a Fleet is meant the one half of the number of Ships whole not dissected contrary to what the Romans dealt with Antiochus The same judgement may pass upon the like cases VI. From the effect Then from the effect the chiefest whereof is this If the word taken in the most usual sence do infer an effect contrary to reason then may we fly to conjectures For where the word is ambiguous we must take it in such a sence as will admit of no incongruity It was therefore but a foolish Cavil of Brasidas who having promised to depart with his Army out of the fields of the Boeotians denyed afterwards that the place where his Camp was pitcht belonged to the Boeotians as if that promise had been made in reference to the possession which the present fortune of the War had given him and not to the ancient bounds of the Boeotians in which sense the agreement had been void VII Or from other things conjoyned arising from the same will Lastly from other things conjoyned and those either such as sprang from the same root i. e. from the same evil though haply in some other place or upon other occasion declared whereupon we ground our conjectures For it is to be presumed that in a case that is dubious the will doth constantly adhere to one sence As in Homer where it is said it was agreed between Menelaus and Paris that Helen should be his that should be the Victor it was afterwards judged who should be the Victor namely he that killed the other Symp. 9.13 For saith Plutarch Judges are guided by that which is plain and not by that which is obscure Ad Adimant It was an excellent observation of Augustine concerning some Hereticks That they cull'd out some sentences of Scripture whereby they deluded the simple by their not observing the Coherence of it to that which went before and that which followed after whereby the meaning of the Writer was to have been discovered VIII And in the same place Or from such things as are also conjoyned in the same place amongst which the most forceable is the reason of a Law which some confound with the mind of the Law whereas it is but one of those signs whereby we guess at the mind of the Law So Cicero in his Oration for Caecina Whether I am thrown out of my possession by your lawful Attorney in your absence or by your Tenant Farmer or Servant who forceth me out in your name and by your command it makes a difference for reason of the Law holds in any of these cases Now of all conjectures this is the strongest when it evidently appears That the Will was excited to such a thing by some one reason as its solitary cause for oft-times there may be many considerations moving us to do a thing And sometimes besides reason the Will to shew its freedom determines it self and this alone is sufficient to beget an Obligation Thus things given in reference to a Marriage alter not their property in case the Marriage succeed not IX By a strict or large signification of words Moreover many words will admit of divers significations as being taken sometime strictly sometimes largely which proceeds from many reasons either because the name of the Genus doth adhere to one of the species as in those words of Cognation and Adoption and in words of the Masculine gender which are taken for the Common where the Common is wanting or because words of Art are more extensive than those that are vulgar As Death in the Civil extends to banishment but in the vulgar acception implies only a separation of the soul from the
But here it is also sometimes questioned Whether Promises are to be understood with this tacite condition That things remain so as they were when the Promise was made Which we deny unless it do manifestly appear That that present condition of things was included in that only Reason which we have said And we read of nothing more frequently in Histories than of Ambassadours who understanding so great an alteration made in the State as would render the whole matter and cause of the Embassie frustrate have returned home without attempting any thing XXVI Or from the repugnancy of some emergent case with the Will Which is taken either from something that is unlawful Courts of Equity necessary The Repugnancy of some emergent case with the Will is of two sorts For the Will is guessed at either by Natural Reason or by some other sign of the Will The proper office to judge at the Will by Right Reason Aristotle assigns to Prudence in the understanding and in the Will to Equity which he very fitly defines to be the Correction or Moderation of that wherein the Law by Reason of its generality is deficient Which ought to take place as well in Testaments as in Contracts respectively For seeing that all emergent cases could neither be foreseen by the Law-giver nor excepted in the Law therefore there is a necessity that some liberty should be granted for the exempting of such cases as he that made the Law would have exempted had he been present or could he have foreseen it And yet is not this rashly to be admitted for that were to make himself Lord over another mans act but then only when we have sufficient signs to justifie our Conjectures Whereof none can be more just than this when they would binds us to things repugnant to the Laws either of God or Nature For such Laws having no power to oblige are necessarily to be exempted Quaedam etiamsi nulla significatione Legis comprehensa sint natura tamen excipiuntur There are some things saith Quintilian that naturally are exempted although they are not comprehended by any signification of the Law As he that hath promised to restore a Sword to him who entrusted him with it if the man to whom the Promise was made be mad he ought not to deliver it lest he thereby create danger to himself or to some others that are innocent So neither are we to restore a thing to him that deposited it with us if the right owner demand it This I approve of saith Triphonius to be Justice that so gives to every man his own that he detracts not from the juster claim of another The Reason whereof is because such is the force of Propriety being once introduced that not to return a thing to the right owner when known is altogether unjust XXVII Or when some too great a charge ariseth to the Promiser in comparison of that act The Second sign shall be this When strictly to follow the words of the Promise or Contract is not of it self and altogether unlawful But when it binds to such things as to a prudent and well-balanced Judgement are too grievous and intollerable And that whether we respect humanity it self absolutely or by comparing the person promising and the thing promised with the end for which such a Promise or Contract was made So he that lends a thing for such a time may require it before that time if he stand in great want of it Because it is presumed that no man would willingly do his Friend a courtesie in that wherein he should do himself a manifest injury So he that shall promise succours to his Allies shall be excused in case he be engaged in War at home so far forth as he shall stand in need of those Forces In like manner he that promiseth immunity from Tributes and Taxes means only from ordinary and annual Taxes not from those that may be imposed in times of greatest danger for the defence of the Common-wealth Wherefore it was too loosely said of Cicero That those Promises were not to be performed which were unprofitable to him to whom they were made nor those which did more endamage the Promiser than benefit him to whom they were made For the person promising is no competent Judge whether the thing promised will be profitable to him to whom it is promised unless it be in such a case as is before instanced of apparent madness Neither is every damage sufficient to absolve the Promiser from the performance of his Promise but the damage must be such as even from the very nature of the act it may be believed That could it have been foreseen it would have been exempted So he that is engaged to do so many days service for another is acquitted from his engagement if either his Father or his Son be affected with some dangerous sickness This was Cicero's opinion in this case If being retained to plead the cause of thy Client thy Son should in the mean time fall desperately sick Non est contra officium Off. l. 1. non facere quod dixeris Thou art not in duty bound to attend that Cause And in this sense is that of Seneca to be understood Then do I break my word then may I be justly charged with levity De Benef. l. 4. c. 35. when all things remaining in the state they were in when the Promise was made I do not perform what I promised But in case there fall out any unexpected change concerning that whereupon the Promise was made it gives me liberty to consult anew and yet I preserve my Faith I am haply retained in a cause wherein I do afterwards conceive that my Father may be damnified I have promised to take a Journey into the Countrey with such a Companion but I understand since that the way is infested with Robbers I have engaged my word to be present and to assist in such a business but am with held by the unexpected sickness of my Son or by my Wives falling into labour Omnia esse debent eadem quae fucrunt cum promitterem ut promittentis fidem teneas All things ought to be in the same condition as they were when I promised to oblige me to do what I did promise Where by All things we must understand all things relating to the nature of that Act which is in question See Camd. anno 1595. The English did frequently make use of these politick Maxims both with the Hollanders and with the Hans-towns as Camden records For when Queen Elizabeth by assisting the States of Holland had drawn down the whole power of Spain against herself and therefore for her necessary defence demanded those vast summs lent them to prosecute their War They urging That that Money was not due by their Contract till the end of the War and that until then she was obliged in Honour to assist them She Answered That a Prince was not bound by his Contract when for just causes
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
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
as Aristotle rightly observes The arguments that excite us to action are of two sorts De motione animalium either they are drawn from the goodness of the end or from the possibility of obtaining it which comparison hath these three Rules whereby we may be guided First Three Rules to guide us in the choice of Good If the thing in debate seem to have in a moral esteem an equal efficacy to good and to evil then if the good we hope for have somewhat more of good than the evil we fear hath of evil we may adventure upon the action but if the conveniencies be not able to over-ballance the inconvenience it is better to refrain for a wise man though never so daring and magnanimous will not run the hazard of his life for every cause but then only when the reward is great weighty and honourable The second Rule is this If the Good and Evil seem to be equal which may proceed from the thing in question then we may thus guide our choice if the thing it self have a greater efficacy to produce the Good than it hath to produce the Evil then we may chuse it Thirdly If both the Good and Evil seem unequal and the power or efficacy of the things no less unequal then that thing is at length to be chosen if its efficacy to the Good be greater being compared with its efficacy unto the Evil than the Evil it self is being compared with the Good or if the Good it self compared with the Evil be greater than its efficacy unto Evil being compared with the Good Thus Narses to Belisarius Where the dangers appear to be equal and the damage alike if we err Procopius Goth. lib. 2. cap. 13. there much discourse and consultation is necessary before we determine the matter in question but where the difficulties are unequal and the damages upon mistake greater or less than the hopes of gain there the choice is very easie and requires no great depth of judgment to determine What we have set down here somewhat more accurately Cicero hath in a plainer way De Offic. lib. 1. but to the same purpose described where he adviseth us not to expose our selves to dangers without cause than which nothing can argue a more fool-hardiness Wherefore in perillous cases we should imitate Physicians who in light distempers use gentle remedies but when the disease threatens death then those that are more doubtfull and dangerous Therefore it is the office of a wise man to help in a time of danger especially when he rationally conceives that the good he shall reap by it if it succeed doth over-ballance the damage that he fears if it miscarry But as the same Cicero elsewhere saith No prudent man will endanger himself in such an enterprise wherein the good success shall bring him little profit but where the least miscarriage may prove fatal For as Dion Prusaeensis saith Grant that our grievances be unjust and unworthy to be born yet will it not follow That whensoever we suffer any thing unjustly we ought by striving against it to make our condition worse To make use of iron and steel when more gentle remedies may prevail Plutarch or where the case is not extreamly dangerous becomes neither a skilfull Physician nor a Politick Statesman Dion Prusaeensis When our burthens are beyond our strength our endeavours to ease our selves of them are just and honest because necessary but if they are tolerable and that we have cause to fear that by struggling they may be made worse we must arm our selves with patience For as Aristides Aristides saith well Where our fears are above our hopes then it concerns us especially to beware VI. Life better than Liberty An example whereof we will borrow out of Tacitus who relates that amongst the Cities of France there arose a great debate whether were more desiderable Peace or Liberty where by Liberty we must understand that which is Civil namely a right to govern by their own Laws which in a popular estate is absolute and full but mixt and moderate in an Aristocracy especially in such an estate wherein no Citizen is uncapable of honours and by Peace we mean such a Peace whereby the destruction of a City or Nation by a cruel War may be prevented that is as Cicero explains it When the whole City is in danger of being lost or when the case of a Nation or City is so desperate that nothing but an utter desolation can otherwise with any probable reason be expected which was the very case of the Jews being besieged by Titus No man can be ignorant of Plato's Opinion in such a case who preferred death before subjection thereby shewing Quam sit non ardua virtus Servitium fugisse manu with what ease A man from slav'ry may himself release But Right Reason suggests the contrary for the Life of Man which is the foundation of all temporal blessings and the occasion of eternal is more to be esteemed than Liberty whether we take both to be either personal or national And therefore God himself intended it as an act of his mercy 2 Chron. 12.78 Jer. 27.13 that he delivered his people into captivity but destroyed them not And by the Prophet Jeremy he perswaded them To yield themselves into the hands of the King of Babylon lest they died by the Famine or by the Pestilence It is a question not easily answered saith St. Aug. whether the Saguntines did well to preserve their Faith given to the Romans De Civit Dei lib. 22. c. 6. so long until the City with themselves was totally destroyed by Hannibal De repub lib. 3. For though Cicero thought nothing sufficient to justifie a War but either the publick safety or the publick Faith given yet doth he not there determine the case of the Saguntines by shewing that if a City were driven into such a strait that they could not possibly preserve their Faith without the ruine of themselves nor preserve themselves without the breach of their Faith which was the case of the Saguntines whether of the two were most eligible But by the Authority of the Holy Scriptures we are taught That death is the greatest of all terrours and that Captivity whether of a Nation or of some particular persons is far more desiderable than utter destruction Thus Guido the Italian Poet bespeaks the Citizens of Milain Omnia securi pro libertate feremus Sed libertatem co tempta nemo salute Sanus amat neque enim certae susceptio cladis Quam vitare queas nisi cum ratione salutis Libertatis amor sed gloria vana putanda est It is not so properly a love to liberty as a preposterous itch after vain Glory that makes a man to prefer his freedom before his life Cicero instances this as a case of necessity that the Cisilinenses were necessarily to give themselves up to Hannibal although this clause were added to that
to be lamented whosoever therefore shall with any remorse consider those so great so horrid and so direful effects of War cannot but confess that it is miserable but he that can feel them or think upon them without sorrow much more he that can glory in the success of them Ideo se putat beatum quia humanum perdidit sensum Therefore thinks himself happy because he hath lost all sentiments of humanity So the same Father in another place tells us that Id de Civit Dei lib. 4. c. 15. Belligerare malis videtur felicitas bonis necessitas Good men make War their refuge but wicked men make it their delight And were there nothing of injustice in the War yet to be enforced unto it that is in it self miserable saith Maximus Tyrius whereunto he adds Wise men never make War but by constraint whereas fools fight for pleasure and gain Lib. 13. The Lacedemonians in Diodorus considering those great enmities and animosities likely to arise from War thought themselves bound in duty to declare before the Gods and unto all good men that they were not the Authors of it Plutarch brings in some making this objection But hath not Rome much improved her self by War Whereunto he answers 'T is true indeed she hath so in the opinion of those who place their greatest glory in Riches in Pleasure Wantonness and Martial Power which are but the dregs of Honour but not in theirs who place their glory in the safety of their People in meekness justice and contentation It was therefore worthily said of Stephanus the Phiysician unto Cosroes King of Persia To thee O King who art wholly conversant in blood and slaughter in subduing Kingdoms and depopulation Cities other glorious attributes may be due but surely thou canst never hope by these ways to be esteemed good for as no good man will greedily covet that which is anothers so Non est homini homine prodigè utendum as Seneca tells us Aelian lib. 14. c. 2. It is no point of Honour to be prodigal of humane Blood Philiscus advised Alexander to be emulous of Glory but not by making himself like unto a Plague in depopulating Cities and laying whole Kingdoms wast Nothing can add more Glory to a King than to provide for the safety of his Subjects that they may live in Peace Nat. Hist l. 7. c. 25. Pliny after he had recounted so many famous Battels gained by the Dictator C. Caesar wherein were slain as he there computes Eleven hundred Ninety two thousand men adds this I do not reckon it as any part of his Glory to have done so great wrong to mankind however provoked Philo in the life of Moses observes That though the killing of Enemies in War were by the Laws permitted yet whosoever did kill a man though justly though in his own defence though compelled thereunto against his will did notwithstanding contract some guilt unto himself in respect of that common kindred and alliance between man and man which was derived from the supreme Cause wherefore expiations and purgations were thought necessary to cleanse them from that crime which seemed to be committed by them If then by the Hebrew Laws He that killed a man though against his will Pollutus esset hostili quidem attamen sanguine was to betake himself to one of the Cities of refuge And if God would not permit David to build him a Temple because he was a man of blood though of his enemies that is as Josephus writes because he had made many Wars which by the Law was permitted If among the Ancient Greeks he that had slain a man though accidentally Lib. 7. cap. 4. or in defence of himself had need of expiation Who cannot see how unhappy a thing it is and by all means to be avoided voluntarily to engage our selves in a War though haply not unjust Surely among the Greek Churches that most Christian Canon was long in force whereby he that in what War soever had slain a man though an enemy was not by the space of three years admitted unto the Sacrament CHAP. XXV For what Causes a War may be undertaken for others I. That a War may justly be undertaken by a Prince for his Subjects II. But yet it is not always to be so undertaken III. Whether an innocent Subject may be delivered up to an enemy to prevent a War IV. That a War may justly be undertaken in the behalf of our Confederates equal or unequal V. As also for our Friends VI. Yea and for any man VII Yet may it also be omitted without blame if it endanger himself or cannot be done without the death of the invader VIII Whether that War be just that is made to relieve another mans Subjects this explained by a distinction IX All those military consociations and mercenary succours that respect not the equity of the Cause are unjust X. To engage in War for spoil or pay only is wicked I. A Prince may justly make War for his Subjects ABove when we treated of such persons as had a Right to make War it was said and shewed That naturally every man had a power to vindicate not only his own but the right of another †See lib. 1. c. 5. wherefore look what Causes do justifie a War undertaken for our selves the very same do justifie a War made for another But our principal and most necessary care should be for our own Subjects whether they be our Domesticks or such as live under our Civil Government for they are a part of the Governour as we there shewed Josh 10.6 Persicor 2. Thus Joshua we read made War in defence of the Gibeonites who had yielded themselves unto him It is not sufficient to denominate a Man Just that he wrongs no man saith Procopius unless he also be carefull to protect those from injuries who for that very end have put themselves under him Our Ancestors saith Cicero to the Roman Senate did often make Wars in the behalf of their Merchants and Mariners when they have been abused by Strangers Verr. 2. And in another place How many Wars saith he did our forefathers undertake to revenge the wrongs done to the Citizens of Rome when their Seamen have been imprisoned and their Merchants spoiled Yea and the very same Romans who refused to take Arms in the defence of a People that were their Confederates thought it necessary to defend the same People when they had surrendred themselves and so became their Subjects Thus do the Campanes bespeak the Romans Though ye refused to assist or defend us against our enemies whilst we were your Friends and Confederates yet now that we are your Subjects you will certainly protect us Whereupon Florus saith That the Campanes made that League which they had formerly contracted with the Romans more strong and inviolable by their voluntary surrender of all they had unto them for it agreed not with the Faith of the Romans
all such things as the Sword hath not as yet determined Livy lib. 34. according to the form of Ancient Right which are the very words of Menippus in his Oration wherein he discourseth of the several sorts of Leagues or otherwise as the Greeks say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That every man should keep what he hath XII In dubious cases it is to be believed that things should remain as they are Of which two ways of pacification the latter if the case be doubtful is the rather to be believed because as it is more facile so it requires no alteration Upon which that of Triphoninus seems to be grounded where he saith That in Peace such Captives only are to return by Postliminy as are comprehended in the Articles of agreement as also where he saith That Fugitives are not to be restored unless it be so expresly agreed on as we have already proved by irrefragable arguments For by the Law of Arms we may receive such See ch 9. and muster them among our own Troops All other things by such an agreement remaining his that at present holds them where the word Hold is meant of a natural not of a civil possession for in War a possession in fact only is sufficient neither is any other required Fields as we have already said are then sopposed to be possest when they are strongly secured by fortifications for such as are for a while only encampt upon as in Leaguers or Sieges are not here to be regarded Lib. 3. c. 6. §. 4. Demosthenes in his Oration for Ctesiphon saith That Philip made hast to get into his possession what places he possibly could as knowing that the Peace being concluded Lib. 3. c. 7. §. 4. whatsoever he could get he should keep but things incorporeal cannot be kept unless either by the things whereunto they adhere as the services of Tenants that are annexed to Mannors or by detaining the persons whose they are that whilst in a Country that is their Enemies they shall not be exercised XIII Of the restoring all things as before the War In that other kind of pacification whereby the possession of things not yet determined by War are to be râ—storâ—d we are to understand That restitution is to be made to those who held the possession thereof last before the War began yet so that those private men that were cast out might lawfully appeal to the Judge for either injunction or vindication XIV This reacheth not unto such as have voluntarily yielded themselves But if any free People do voluntarily subject themselves to either Party that were in Arms this Article of restitution shall not extend unto them because it was intended only to such things as were done either by force fear or otherwise by such kind of fraud as is not lawfully used but against Enemies Thus the Peace being concluded among the Grecians the Thebans detained Plataea alledging That they were possest thereof neither by force nor treachery Thucyd. l. 3. but by the voluntary surrender of the Citizens And in another place the same Author urgeth That Plataea ought not to be restored because it submitted it self to the Thebans of its own accord Thucyd. l. 5. By the same Law Nisaea was detained by the Athenians And the same distinction is used by Titus Quintius against the Aetolians who urging that the Cities of Thessaly might be set at liberty was answered That as to the Cities taken by force Livy lib. 33. that indeed was the Law but the Cities of Thessaly did freely submit themselves to the Roman jurisdiction XV. Damages by War if in doubt are believed to be remitted If nothing else be agreed on yet this in every Peace ought to be presumed that no Action shall be commenced for damages done in War which is also to be understood of such damages as are received by private persons for these also are the effects of War For where the cause of the War is doubtful neither party will be willing so to agree as to condemn themselves of injustice XVI But not those done by private persons before the War began Yet must not those Debts which were due to private men when the War began be accounted as pardoned For these were not contracted by the Right of War but forbidden to be exacted during the War and therefore the War which only hindred the exacting of them being ended the Debts remain in force as before For although it ought not easily to be believed That that which was a man's Right before the War should be taken away for for this cause chiefly as Cicero observes De Offic. lib. 3. were Commonwealths and Cities at first instituted That every particular man might be defended in what was his Right yet ought this to be understood of that Right only which ariseth from the inequality of things XVII Punishments if in doubt though publickly due before the War are presumed to be remitted But as to punishments it is not so for this Right of exacting punishments so far as it concerns those very people or Kings that have contracted Peace is therefore presumed to be remitted lest if any old grudge should remain unforgiven there could be no firm or lasting Peace Wherefore even those injuries which are as yet unknown to the Party injured are usually comprehended in general words as that fact of the Carthaginians in drowning some Roman Merchants was remitted by the Romans before it was made known unto them as Appian tells us Optimae conciliationes quae iram offensarum memoriam delent Those are the best reconcilements that pacifie all anger Dionys Hal. and leave nothing in the memory unremitted For as Isocrates very discreetly In Pace non decet ante peccata exequi After Peace is ratified to revenge former injuries is unseemly XVIII Not so as to punishments due to private men But there is not the same reason that this Right of exacting punishment should also be remitted by private men because these may without War be judicially required yet forasmuch as this Right is not so properly ours as that which proceeds from inequality and that the very exacting of punishments argues somewhat of hatred therefore any flight interpretation of words will suffice to ground our conjectures that this also was intended to be remitted XIX That Right which though publickly claimed before the War but controverted is presumed to be remitted Now whereas we said That the Right which we had before the War ought not easily to be believed to be remitted this holds very true as to that Right which belongs to private men But as to that which belongs to Kings and Nations it will be more easily granted if the words will but afford us whereupon to raise any probable conjectures to that purpose especially if it were not a clear but a controverted Right that was in Debate For to believe that to be done whereby all occasions of a new War may be prevented is generous
demands his reward page 458 Buggerers may lawfully be killed page 72 Burial due to Enemies 216. whether due to the notoriously wicked 217. an emblem of the Resurrection 215. observed by Pismires and Dolphins and Bees page 214 215 To Bury him that was found dead the High-Priest commanded though not otherwise to be present at a Funeral page 216. Burial whether justly denied to self-murtherers page 218 Burial denied a just cause of War page 213 214 Burial its right whence ibid. A Bushel Roman how much of ours page 521 C. Celare what not every thing hid that is not revealed page 159 Caesar in his War destroyed 1192000 men page 421 Caesar forewarned of the Ides of March page 559 Calistratus misunderstanding the Oracle instead of protection at Athens found his Death page 398 Canaan not promised to any person but to the People page 168 Canaanites capable of mercy if they yielded page 169 Canibals and Sacrificers of mankind destroyed page 384 Canons Ecclesiastical of what use Preface xviii The twelfth Canon of Nice against War was occasioned by Licinius his cruelty page 28 29 Canons concerning the wasting of an Enemies Country page 514 Canons concerning Slaves how understood page 483 484 Captives whether they may be at any time killed page 460 Against Captives redemption Laws unjust page 561 A Captives promise to return binds him page 567 Captives lose not their things if not found and taken 562. when they may be put to death page 508 Captives and things not restored unless so agreed 489. their Children Slaves page 481 To Captives taken in War what in equity may be done page 520 A Captive released for exchange ought to return or pay his ransome his exchange being dead page 562 A Captive Woman if her redeemer either marry her or prostitute her Body her ransome is lost page 490 Captives to take in War dow far lawful page 519 Captives to redeem Vessels consecrate may be sold page 216 217 Captives whether they may make their escape page 523 A Captive who takes hath a Right to all he hath so long as he keeps him page 489 A Captive redeemed to serve his redeemer how long page 490 A Captive may owe his ransome to divers 562. his ransome agreed shall bind though he be richer than was believed ibid. A Captive is a perpetual hireling whose ransome is paid by his work page 519 Captivity better than death or desolation page 420 Captives in a solemn War Slaves though they never acted hostility against us page 483 Captives taken in a publick War distinguisht from such as are Slaves for personal crimes page 519 520 Captives how long in equity they may be detained page 519 A Captives allowance among the Romans how much it contains of ours page 521 Captives not exempted from the licence of War 460. yet to be spared page 506 507 Captives redeemed by the valour of Souldiers not taken but received page 491 Captivity arising from an unjust War unjust page 495 Captivity into what now changed page 484 See Slaves Capua dissolved page 142 Carneades holding all lawful that was profitable confuted Pref. iii vii his Arguments against Justice answered ibid. Carthage to be free how understood 194. the Captive promising to return and failing sent back by the Romans page 167 The Cauchi a People of Germany well disciplined yet always at Peace page 406 Cavils concerning interpretation of Articles page 191 194 Causes of a just War Defence Recovery Punishment page 70 71 Without Cause to make War not cruelty but madness page 405 Cause may be good but the manner of its prosecution unlawful page 401 Causes of a War unjust page 404 Causes of a just War three page 70 Causes and pretences distinguish'd page 404 Cautions to limit the Law of necessity page 82 Certainty there cannot be the same in Morals as in Mathematicks page 410 Change of Counsels is not evil if not from better to worse page 151 To Change a Mans will is natural ibid. Change of Seat no loss of Empire 142. no more is the Change of Government page 143 The Charges of the War may be required from the Authors of it page 518 Charity sometimes forbids what Law permits 434. its Rules extend farther than those of Justice page 518 Charity mitigates punishments unless hindred by a greater Charity page 381 Charity should be extended by Christians as Christ extends his Grace to all men page 186 Children born of Captives how far Slaves 523. not to be punished for their Parents 401. in this Case God no Precedent for us and why 399 400 402. how long they owe Obedience to Parents 104. grown to discretion have a moral power over their own actions and how ibid. even of Traitors spared by good Princes 402 403. to succeed their Parents dying intestate 123. to nourish their Parents like the Stork ibld. The Child to follow the Condition of the Mother only not natural 133. why threatned to be visited for their Parents page 402 Choice of the Empire not in the Citizens of Constantinople but of Rome page 144 Christs actions not all imitable by us page 34 Christ not Moses's Interpreter only page 16 17 Christians whether they may join with Infidels in a Social War page 185 Christian Religion inoffensive by the testimony of Heathens 390. being grounded on matter of fact none to be thereunto compelled page 389 390 Christians to persecute as such a just Cause of War 390. not to be imprest to serve in War against their will 431. should confederate against the Enemies of Christ 186 187. swear by the Creatures in reference to God 171. not to fight against Christians under Heathens 29 30. make not Christians Slaves nor Turks Turks 414. to inflict capital punishment how not safe for them 373. should not resist persecuting Emperours 57 58. ought to assist Christians persecuted for Religion 186 187. whether they may enrich themselves by the Spoil of Enemies 535. whether they may resist in Cases of extreme necessity page 60 61 Christians even unarmed make War page 431 Churches and things consecrate to be spared page 414 515 516 Circumcision to whom it belonged 9. why Strangers were circumcised ibid. not necessary to salvation the Jews confess ibid. A City what 8. in what sense said to be free 407. their Right over their Citizens page 114 A City hath no power over her Banished 115. revolting to receive is against the Law of friendship page 510 Cities and Rivers immortal 141. being by War conquered whether it ceases to be a City page 485 A Citizen not to depart till his part of the publick Debts be paid 115. nor in a Siege till he hath substituted another ibid. being delivered up but not received may return and remain a Citizen 396. whether they may forsake their City page 115 A Citizen though innocent whether to be compelled to deliver himself up to preserve his City page 423 424 Cities not to be punished if the Criminal appear in Judgment 396.
sin is the injustice of the fact For we speak not here of all sins but of those which have respect to something without the person sinning Now this injustice is so much the greater by how much the damage thereby done to another is greater And therefore those are the greatest injuries that are actually consummated and those the least which though they have made their progress through some Acts yet are not arrived to the utmost Act For which reason the coveting of our neighbours goods is placed by Moses in the rear of the Decalogue as being a sin of the lowest form or as it were but an introduction to sin which the farther it goes the worse it is In either of these kinds that is esteemed the greatest crime which disturbs Common Order and thereby gives offence to most men After this follow the injuries done to particular persons And of these the highest is that which touches the life of Man exprest by Moses in this Precept Thou shalt not kill The next is that injury done to a Mans Family the foundation whereof is laid in Matrimony contained in these words Thou shalt not commit Adultery The third and last are such as are committed against a Mans private Estate either directly as by stealing or indirectly as when by our false Testimony we prejudice the Right of others These may be yet more acutely divided But it pleased Almighty God in the Decalogue to follow this Order For under the name of Parents which are Natural Magistrates it is fit that Magistrates and other Rulers and Governours should be comprehended by whose Authority Humane Society is maintained Next unto this follows the Interdiction of Homicide the Institution of Matrimony and the prohibiting of Adultery then Theft is forbidden and false testimonies and in the last place such sins as are inconsummate Neither amongst those Causes that should restrain us from sin are we to place that single damage only that is done directly against others but that also which is probably consequent to it as in firing an house making a breach in the sea-bank or in a bulwark wherein the lives and fortunes of many Families are concerned Moreover that Injustice which we put here as a general cause of restraining from sin is sometimes aggravated by the addition of another crime as our impiety to our Parents our inhumanity to our Kindred our ingratitude to our Patrons or Benefactors Again a sin is reputed the greater being the oftner committed forasmuch as an habit of evil is far worse than some particular acts of evil Once to erre is pardonable but in iisdem saepius errare emotae est mentis To dash often against the same stone is folly nay madness the oftner we offend the greater punishment we deserve And from hence we may collect how far forth that was naturally Righteous which was usually done amongst the Persians who before they passed sentence upon a Malefactor The Persian Custom looked back to his former life and compared it with the present Crime he stood convicted of for they thought it unjust to take away the life of any man for one evil act unless the whole course of his life had been otherwise sinfull And indeed what Asinius Pollio saith is very true We are not to judge of any person by some particular acts but by his continued habits None are to be accounted notoriously wicked but they that have long persisted in a constant course of wickedness Nemo repente fit pessimus No man arrives at the heighth of impudency at the first For our innocency leaves us not but by degrees and boldness that it may learn not to startle at grosser villanies gathers strength and courage by the frequent committing of lesser ones And yet what Asinius Pollio said concerning the judging of mens present Crimes by their former lives ought to take place in such only who being otherwise not wicked have been on a sudden surprized by the sweetness of some particular sin But not in those who have changed the whole course of their former lives For of these God himself by the Prophet Ezekiel proclaims Chap. 18. Lib. 1. that he will have no regard at all to their former deeds whereunto that of Thucydides may very fitly be applyed They deserve doubly to be punished because they are Apostates from goodness and degenerate from Virtue to Vice And therefore it was wisely provided by the Primitive Christians in their censures of other mens failings That no Judgment should pass barely for the crime committed but with retrospection on their fore-past lives and on what followed as may be seen in the Council of Ancyra and others Lib. 3. de Sacerdotio So St Chrysostome Punishments are not alwayes to be inflicted according to the sole measure of the Crimes but we ought to enquire into the mind and manners of him that commits them But a Law being once Enacted against any one Vice Rom. 7.13 makes a sin exceeding sinfull So St Aug. Lex prohibens omnia delicta congeminat De vera Relig. Ob. The Law in prohibiting doubles all offences for it is not a single sin when we commit not that only which is in it self evil bâ—t tbat also which is forbidden us And by this argument St Paul aggravates the sins of the Jews in respect of those of the Gentiles because they had the Law to direct them We must not therefore be rash in judging nor as Cicero adviseth in grave and serious things determine of the will and intentions of the person accused barely by the fact but by his manner and custome of living A good man may haply be ensnared by the sweetness of a sin or by the sudden gust of temptations and yet in the general course of his life he may retain his integrity The heart of Asa is said to be upright all the dayes of his life and yet when he was sick it is objected against him That he sought unto the Physician and not unto the Lord. XXXI The fitness of the person offending to both which is diversly respected Now before we can rightly understand how to punish we must know the aptness and capacity of offenders to apprehend the causes which do either excite them to commit or restrain them from committing of sin Now this aptness or capacity of theirs we may guess at by either their temperament of body age sex education or some of the circumstances of the act For it will easily be granted that children women fools illiterate persons and ill educated cannot so well distinguish between just and unjust lawfull and unlawful as they that have more perspicacity and ingenuity and that they in whom choler predominates are prone to anger and revenge as they also that are of a sanguine complexion are to dalliance so young men are propense to one passion old men to another insomuch that Nature seems to plead somewhat in their excuse as to such sins as are as it were congeneal with them as