Injury offered to humane Nature Lib. 1. Romulus in Livy makes it his request to his Neighbours That they would not disdain by Interchangable Marriages to mix generations with them And Canuleius in the same Author pleads thus We saith he require but lawful Wedlock which to Neighbour Nations and Foreigners is usually granted What is unjustly denyed De Civit. Dei lib. 2. c. 17. may by the right of War be justly taken saith Aug. Now whereas the Civil Laws of some people do carefully provide against such Marriages they seem to be grounded upon this reason Because in the times when those Laws were made there was hardly any Nation or People but were sufficiently stored with Women or that those Laws were not intended to interdict all such Marriages but such only as were Legitimate or Just that is which should produce some special effects of a Civil Right XXII A Right to do such acts as were permitted to all strangers Among such acts whereunto a Right in Common is given by supposition we are to reckon those which a Prince or People do promiscuously permit to all strangers for that Nation is injured which is excluded Thus if it be permitted in any place for strangers to Hunt Fish Hawk gather Pearls If it be allowed them to receive Legacies to sell Commodities if even where there is no scarcity of Women to contract Marriages these cannot be denied to any one people unless they have some ways abused their Liberty for which cause it was Judg. 20. that the rest of the Hebrews denied to inter-marry with the Benjamites XXIII I mean such as are permitted by the Right of nature not out of grace and favour But this is to be understood of such Acts only as are permitted as it were by vertue of that liberty which nature gives being restrained or taken away by no Law but not of such as are indulged to any Nation as acts of Grace dispensing with the Laws For to deny a Courtesie is no Injury XXIV Whether to engross all the fruits of one kind be lawful Another Question is frequently started which is this Whether it be lawful for one Nation to contract with another for all their Fruits of such a kind which are no where else to be found so that they shall sell none to any other Nation This in mine opinion may be lawful If that people that shall so buy them be willing to communicate to others at a reasonable price For it concerns not other Nations much by whom they are supplied with their Natural wants so as they are supplied And it is lawful for any to anticipate others in matters of profit especially if there be any special cause for it as in case the people making this Contract shall undertake the protection of the other people and shall for that cause be at some expence or charge For such an Ingrossing made with such an Intent as I have said is no way repugnant to the Natural Right although it be sometimes prohibited by the Civil Law for the benefit of the Common-wealth CHAP. III. Of the Original Acquisition of things where also of the Sea and of Rivers I. That things were originally acquired either by division or occupancy II. Other ways refuted as the concession of Right Incorporeal III. As that also of Specification IV. Occupancy two-fold either of Empire or of Dominion This explained V. That the Right of Occupancy as to things movable may by Law be prevented VI. The Dominion of Infants and Mad-men by what Right held VII That Rivers may be acquired by Occupancy VIII Whether the Sea also may be so IX Anciently in some parts of the Roman Empire that was not lawful X. But as to such parts of the Sea as are Included by Land on each side the Law of Nature doth not Impugn it XI How such a Right of Occupancy may be made and how long it lasts XII That such an Occupancy gives no Right to Impede an Innocent passage of Ships upon them XIII That Empire over some part of the Sea may be gained by Occupancy and how XIV That Toll for certain causes may be Imposed on such as traffick by Sea XV. Of Agreements which forbid some people to sail beyond certain bounds XVI A River changing its course whether it change the bounds of the territory explained by a distinction XVII What is to be determined in case a River do manifestly change its course XVIII That the whole River doth sometimes pass with the Territory XIX That things clearly deserted become the next Occupants unless the Propriety be held in general by some Prince or People I. How things become ours originally THings may become ours by a particular Right either by an Originary or by a Derivative Acquisition Originary Acquisition when men began first to associate together might also arise by Division as we have said but now by Occupancy only II. Other means refuted But some man may haply say That somewhat of Originary Right may also be acquired by some service done or by reason of some Pledge c. But to him that throughly weighs the matter it will appear That this is no new Right unless it be in respect of the manner for it was first virtually in the dominion of the Lord. III. Paulus the Lawyer to the Causes of Acquisition adds this which indeed seems most natural if we our selves have given being to that which we claim as ours But since nothing can naturally be made without some pre-existing matter Now if that be ours the Species being introduced the dominion will be continued But if the matter pre-existing belong to none then shall the Right be acquired by a kind of Occupancy But if it it belong to another then that the Right of Propriety descends not naturally unto us alone will appear by what follows IV. Occupancy two-fold of Empire or Dominion Now let us examine Whether that Occupancy which after those first times is the only natural means of gaining Propriety be also the Originary Of things that properly belong to none two things are subject to be held in Propriety namely Empire and Dominion as it is distinguisht from Empire Which Seneca thus differenceth Ad Reges potestas omnium pertinet ad singulos Proprietas To Kings appertain the Soveraignty over all to private men the Propriety or Dominion of what is theirs Ch. 5. And a little after Rex omnia Imperio possidet singuli Dominio Kings hold all by their Soveraignty and private men what is theirs by Dominion And again Caesar omnia habet Fiscus autem privata tantum sua Caesar hath all yet is his Exchequer private only Lib. 10. Ep. 54. and his own So Symmachus concerning Kings Ye Rule all but preserve to every one his own Of the same mind was Dion Prusaensis Regio civitatis est at non eo minus in ea suum quisque possidet The whole Countrey is under the command of the City yet in it every
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
of Israel Quaest ad Orthod 138. and having absolute power over their lives takes them away by the Pestilence thereby punishing both Prince and People for as a good Christian Author saith well Kings are never more severely punished than when they are punished in their Subjects And this is as just with God as it is with men ordinarily to be whipt on the back for an offence committed by the hand or as it is with a Physician to burn a man on the great Toe to cure him of a pain in the hip as Plutarch makes the comparison But why this is not lawful for men we have already shewed XVIII Nor Dissenters for the sins of the major part The self same may be said of the punishment of such particular persons in those things which are properly their own as do not consent unto those injuries that are committed by the generality of the people XIX The Heir not obliged to his Fathers punishment as such and why But why the Heir that is obnoxious to other debts is not obliged to this of punishment the true cause is Because the Heir represents the person of the deceased not in merits which are meerly personal but in his goods whereunto that those also that are owing unto any man by reason of the very inequality of things should cohere was at the first by a general consent introduced with dominion it self Orat. Rhodiana For as Dion Prusiensis observes Whatsoever was owing by the Father is no less due from his posterity neither can ye justly charge it upon us that we have renounced our inheritance So likewise Cicero There is no person so fit to succeed in the room of the deceased as the right Heir XX. Yet he is if that punishment be changed into some other kind of debt Hence it follows That if beyond the merit there appear any new cause of obligation then even that contained in the punishment may be justly due though not properly as a punishment So we have seen that sometimes after the sentence is past and sometimes after the matter of fact is sufficiently proved in such things as will admit of a composition the mulct or pecuniary punishment shall be recovered from the Heir as even that also which is drawn into that agreement because there now appears a new cause of obligation CHAP. XXII Of Causes of War that are unjust I. The difference between Causes that are just and such as are suasory only explained II. The War that hath neither of these is brutish III. That War that hath causes suasory only not justifying is predary IV. There are some causes which seem to be just which are not V. As uncertain fear VI. Profit without necessity VII The denyal of Wives where there are plenty of Women VIII The desire to plant in a better soil IX The finding out of such things as are pre-occupyed by others X. What if those pre-occupiers be altogether mad XI The desire of liberty no just cause in such as are Subjects XII Nor the desire to rule over others without their consent though for their good XIII Nor the title of being Vniversal Monarch which some have given to the Emperour which is refuted XIV Which others give to the Church which is also refuted XV. As also a pretence to fulfil some Prophecies without a special command from God XVI As also a pretence of some due debt though not in strictness of Right but some other way VII The difference between a War whose cause is unjust and that which is some other ways unjust and the divers effects of both I. The difference between the true and the pretended causes of War OF the causes of War some are as I have said above * Lib. 2. c. 1. justifying some suasory only those that are unjust have notwithstanding always some specious pretence or other to make the War to appear just which Polybius calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the other he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the true causes which oft-times lye couchant whilst something that is more plausible is exposed to the publick view as in the War which Alexander made against Darius the preface or pretence was to revenge some wrongs which the Persians had long before done unto the Grecians but the true cause was Ambition and a vehement thirst after soveraignty and riches which also was very much heightned by the facility of the enterprise which he collected from the success which both Xenophon and Agesilaus had before in their several expeditions Thucydides distinguisheth them into the outward shew and the inward truth as when the Athenians made War against Sicily they openly declared that it was only to aid the Aegestans but the naked truth was to gain Sicily to themselves Appian also hath the very same expression in the War made between the Romans and Mithridates and also in his fifth Book of their Civil War where speaking of the peace broken between Octavius and Sextus Pompeius he saith That there were some causes which were true but latent and others that were feigned and pretended only the one was but as a cloak or vizard the other was the real purpose and intention It is true what Procopius in his Persian War saith Lib. 2. Stultum est non libere loqui ubi justitia dux est comes utilitas It is but folly to dissemble where justice is our guide and profit our companion The pretence of the second Punick War was a contest about Saguntum but the true cause was the secret disgust which the Carthaginians had against the Romans for the hard conditions they had imposed on them in the low ebb of their fortunes and the great confidence they had in their own strength upon some prosperous successes they then had in Spain as Polybius observes The same distinction we find used by Livy Liv. lib. 7. in the Oration made by the Campanes to the Romans concerning their engagement against the Samnites which they pretended to be only to assist the Sedicines but their main end was their own defence because they foresaw that when their neighbours house was burnt the fire would quickly reach them So when Antiochus made War against the Romans his pretence was to revenge the death of Barcilla and some other wrongs received Lib. 36. but the true cause was the great hopes he had to make some advantage to himself of the looseness of the Roman Discipline And And Plutarch observes that when Cicero objected against Anthony That he was the cause of the Civil War it was but a pretence for Caesar resolving to make War took only his pretence from Anthony II. A war without any cause is brutish Some there are that are carried head-long into War without either of these causes Periculorum propter se avidi That delight only in sweat and blood and that live wholly upon spoil and rapine This is a vice so much beneath the nature of mankind that Aristotle calls it 〈◊〉
necessity Nisi malint fame perire Vnless they had rather perish by famine For as Anaxilaus in Xenophon apoligizeth for his surrender of Byzantium being thereunto constrained for want of Bread Pugnandum est hominibus in homines non in rerum naturam Men ought to fight against men but not against nature neither do men commend a voluntary death so long as their hopes are above their fears That sentence which Diodorus Siculus past against the Thebans which lived in the time of Alexander the Great stands yet upon record namely That they were the authors of their own ruine for as much as they had with more courage than prudence provoked Alexander to their own destruction And in another place the same Author examining the ground of that War which the Thracians undertook against Alexanders Army after his death saith That in the opinion of the wisest men they had consulted well for their own glory but not so well for their own profit by thrusting themselves over-hastily into so dangerous an enterprise being no ways urged thereunto by any necessity but especially being forewarned by the destruction of the Thebans The like censure doth Plutarch pass upon Cato and Scipio Whom for refusing to submit to Caesar after his victory in Pharsalia he condemns as being the cause that so many and so gallant men did unnecessarily perish in Africa Now what I have here said concerning liberty may likewise be said concerning other things that are desiderable when they cannot be obtained without if not a more just yet at least an equal expectation of some greater mischief For as Aristides saith To preserve the ship with the loss of the goods is usual but not with the loss of the passengers VII War seldom made for punishments by Princes of equal power This also is chiefly to be observed That Wars are seldom or never made for exacting punishments only by such Princes or States as are of equal power for as the civil Magistrate so he that undertakes to punish injuries by Arms must always be presumed to be of power sufficient to enforce it Neither is it prudence only or the love we bear to our Subjects that should disswade us from a doubtful War but sometimes even justice that I mean which is essential to Government which requires as obedience from inferiours so protection and preservation from superiours And consequently as some Divines have rightly observed If a King for any small or trifing cause as for the exacting of punishments which are unnecessary In what case a Prince is bound to repair his Subjects losses engage his Subjects in a dangerous War he is bound to repair the losses they shall thereby sustain for although to his Enemy haply he doth no wrong who hath justly provoked him yet doth he thereby wrong to his Subjects by involving them in a dangerous War for such slight causes as might better have been dissembled and is therefore bound to repair their damages in which sense that of Livy holds true Justum est bellum quod necessarium est pia arma quibus nulla nisi in armis relinquitur spes That War is just that is necessary and Arms are there necessary when there is no hopes of safety but by Arms. This was Ovids wish Ovid. Fast 1. Sola gerat miles quibus arma coerceat arma May then the Souldier armed be When he repels his Enemy VIII War not to be undertaken but in a case of necessity There is then one rare cause when War either cannot or ought not to be omitted as namely when as Flora speaks Jura sunt armis saeviora Laws are more cruel than War it self that is when the oppressions of Tyrants are more greivious than the miseries of War He saith Seneca needs not to fear the miseries of War that suffers the like if not greater living in Peace So Aristides When it is manifest that our condition will be worse in sitting still then we may adventure upon the dangers of War Neither is that opinion of Tacitus much to be condemned where he saith That a miserable Peace may well be exchanged for a doubtful War that is as the same Author saith When if we conquer we enjoy our freedom or being conquered our condition can be no worse Or when as Livy speaks Peace is more grievous to those that serve than War is to those that are free But not as Cicero puts the case if it appear that being Conquered we shall be proscrib'd i. e. our estates shall be sold and our persons banished but being Conquerours we change only our oppressors but are not eased of our oppressions IX Or without great cause and great advantages Another time when War is to be preferred before Peace peace is when upon a rational debate we find that we have the best Right and which is of greatest moment power sufficient to defend it that is as Augustus in Suetonius sometimes said * Sueton. c. 24. When there is more hopes of gain than fear of loss Or as Scipio Africanus and L. Aemilius Paulus were wont to say of the Battel * Aul Gel. l. 13. c. 3. Val. Max. l. 7. c. 2. We ought not to run the hazard of a Battel but upon some unavoidable necessity or upon great and manifest advantage wherewith accords that of Plutarch * Gracchis before-recited To use Iron and Steel without very great necessity neither becomes a good Physician nor a prudent States man The like Zonaras records of Marcianus Kings when they may lawfully enjoy Peace ought not to make War Whereunto we may add that of St. Augustine Pacem habere voluntatis est Bellum autem necessitatis esse debet ut liberet nos Deus à necessitate conservet in pace Peace we should make voluntarily War out of necessity That so God may relieve us in our necessities and preserve us in Peace But then most especially may we make War when we have good cause to hope that our Enemies through fear or by the fame of our Victories will be ready to yield without any or very little danger on our part and this is as Pliny calls it the most glorious of all Victories X. The miseries of War War indeed is as Plutarch speaks * Vit. Eamilli a very savage thing and never comes unaccompanied with a torrent of mischiefs and insolencies Which saith St. Aug. * De Civit Dei l. 19. c. 7. should I undertake to describe when and where would my discourse end But they may say a wise man will sometimes make War as if when he considers himself to be a man he doth not much more grieve to find himself enforced thereunto though that War be just for unless it were just there could be no necessity to make it because it is the iniquity of the adverse part that thrusts a wise man into a just and necessary War which very iniquity as proceeding from men though no necessity of a War should thence arise is
lib. 1. Non illi imperium pelagi renumque tridentis Sed mihi sorte datur The Sea 's vast Power was not by lot assign'd To him but me Whereunto not much unlike is that of Ovid Rescindere nunquam Metam lib. 14. Dîs licet acta Deûm Nor can the Gods each others Acts rescind So likewise Euripides Mos ille est Deûm Quod cupiit unus huic nefas obsistere The Gods their custom have None must oppose what any one did crave That is as St. Ambrose well expounds it Lest by usurping upon each others jurisdiction they should stir up War amongst themselvos That every State should be permitted to punish their own Subjects was thought by the Corinthians in Thucydides to be just And Perseus in his Oration to Martius denies that he needed to make any defence for himself for what he had done against the Dolopes saying Jure feci meo I did but exercise mine own just Right seeing that they were my Subjects and so under my jurisdiction For as St. Augustine observes Lib. 2. de lib. Arb. There is not the same reason that because it is an Argument of some mens goodness to confer courtesies on strangers therefore it should be the like argument of their justice to punish those that belong to anothers jurisdiction But rather as Procopius hath it It is more agreeable to the rules of equity that every man should carefully govern his own Province and not trouble himself with the affairs of others Yet are all these to be understood of such cases wherein another mans Subjects have manifestly offended or at least whereof it is doubtful whether they have or not for to this end were Empires at first distributed But they hold not in case Subjects apparently groan under such Tyrannies as no just man can approve of and therefore are precluded from those Rights that are common to humane Society For in such a case as this it was that Constantine made War against Maxentius and Licinius and other Roman Emperours against the Persians or at least threatned so to do unless they protected from oppression such of their Subjects as were Christians being persecuted for no other cause but that of Religion Yea and although we should grant that Subjects could not justly taken up Arms against their Prince no not in case of greatest necessity which we see is doubted even by those whose purpose it was to defend the Regal Power Yet will it not thence follow That other Princes may not take Arms in their own defence For whensoever the impediment to any action is meerly personal and not drawn from the thing it self then that which is unlawful for one to do by himself may yet be lawful for another to do for him ☞ if the matter be such wherein one man may profit another So a suit at Law which a Pupil by reason of his minority cannot maintain by himself his Tutor or Guardian may maintain for him So a Client that cannot appear in his own person by reason of the distance of place may notwithstanding appear by his Attorney Now that impediment which in a Subject hinders resistance ariseth not from the Cause which is the same in Subjects as in those that are not but from the condition or quality of the person which passeth not into another Thus thought Seneca He that being separated from my countrey is vexatious to his own may be justly by me invaded as I have shewed before where we treated of punishments which thing is often conjoined with the defence of innocents Although we are not ignorant by those many examples we find in Histories both ancient and modern That Ambition and an insatiable thirst after Gain do too frequently disguise themselves under such specious pretences yet may we not thence conclude That because wicked men do sometimes usurp this Right for sinister ends therefore to defend other mens Subjects from manifest oppression ceaseth to be lawful For Navigant Piratae ferro utuntur Latrones Pyrates we see navigate the Seas and Thieves wear swords yet no man will hence infer That it is not therefore lawful for Merchants to traffick by Sea or for Princes to make use of Arms to defend their Subjects IX Of Souldiers of fortune But as those Warlike Confederacies which are made to the end that succours may be promised upon any War undertaken by whâ—msoever or upon what occasion soever be it right or wrong are already declared to be unlawful so is there no kind of life more wicked than that of mercenary Souldiers who without any respect had to the equity of the Cause fight only for plunder and pay to whom Ibi fas ubi plurima merces That 's the best Cause which pays best Livy 32. which Plato proves out of Tyrtaeus This was it that Philip upbraided the Aetolians with and Dionysius Milesius condemned in the Arcadians in these words Belli instituuntur nundinae They made War a trade to live by And what was the common bane of all Greece besides was matter of gain and profit to them whilst they sent out their mercenaries sometimes to this part sometimes to that without any regard to justice or equity Surely a Souldier is a thing to be much pittied Miles qui vitae causa se auctorat neci Antiphanes Bacchid who as Antiphanes speaks hires himself to be killed to preserve a life that is miserable So Dion Prusaeensis What can be more necessary what more dear and precious than life and yet even this many men imprudently lose for greediness of gain This was Plautus his Character of mercenaries Suam qui auro vitam venditant Their lives for gold they sell The like doth Gunther Aere dato conducta cohors bellica miles Dona sequens pretioque suum mutare favorem Suetus accepto pariter cum munere bello Hunc habuisse dator pretii quem jusserit hostem And yet did they sell their own lives only it were the less hurt but together with their own they sell the lives of many innocents Tanto carnifice detestabiliores quanto pejus est sine causa quam cum causa occidere By so much is the condition of such Souldiers worse than that of Hangmen by how much it is more abominable to kill the innocent than to destroy the guilty As Antisthenes was wont to say of Tyrants Tbat they were more cruel and merciless than common Executioners for these hang Thieves and Murtherers only but those murther innocents And Philip of Macedon Diodor. l. 18. as truly of those who made War for gain only That War was to them as Peace and Peace as War So likewise Seneca What may a man call this but madness to make dangers our inseperable companions fiercely to assault those whom we know not to be enraged without any offence given to destroy all we meet and like wild Beasts to kill those whom we never hated Surely War is not a trade to live by nay
expose themselves to labour and danger for nothing De benefic 4. c. 15. for this reason saith Seneca we usually reward Physicians though they cure us not Quod à rebus suis avocati nobis vacant Because we call them from their own affairs to serve ours And the same reason likewise serves for Lawyers as Quintilian notes Because they tear out their time and employ their whole study to defend other mens Estates thereby neglecting all other means to improve their own The very same is given by Tacitus Ann. l. 9. Omittit res familiares ut quis se alienis negotiis intendat That he casts off all care of his own domestick affairs that he may the better intend the good of others It is therefore very credible unless there shall appear some other cause as namely mere kindness or some former Contract that it was the bare hope of gain by the spoil of the enemy which they expected as a compensation for their loss of time and of their labour Vid. Plut. Marcell that made them to expose themselves to so great dangers XXIV And often to Subjects But as to Subjects the reason is not so evident because Subjects and Citizens owe their help and assistance to the Country or City whereof they are But yet seeing that all Citizens either cannot or will not expose themselves to those hazards and hardships that attend War therefore it is but reasonable that retribution be made by the whole Body of the people unto such as shall sustain the toil or the charges of it but much more the damage that shall be thereby occasioned in full recompence whereof the hopes of the whole prey or of an uncertain part thereof is by the people easily and that not without reason granted unto them So thought the Poet Propert. Praeda sit haec illis quorum meruere labores Theirs be the prey whose pains deserv'd it have As to our Associates an example we have in the League that was made between the Romans and the Latines wherein it was agreed Liv. l. 4. c. 24. That in all the Wars wherein the Romans should engage them the spoil taken from the Enemy should be equally divided between them So in the Wars wherein the Aetolians engaged the Romans it was agreed Dionys l. 6. Polyb. l. 6. That the Cities and Territories should be the Aetolians but the Prisoners and all Moveables should be granted to the Romans To the ancient Latines the Romans gave a third part of the spoil as Pliny testifies And proportionable to the succours sent the free Towns of the Switzers received their share of the spoil as Simler relates Paruta l. 8. In a War against the Turks the Pope the Emperor and the Venetians divided the spoil according to their respective charges that they had been at in making the War And Pomponius gratified Deiotarus King of Galatia with the lesser Armenia because he had been his Companion in the War against Mithridates St Ambrose upon the Story of Abraham Lib. 1. de Abra demonstrates the equity of this custom Abraham saith he perhaps thought it but just that they that came up to his assistance in that War should likewise partake with him of the spoils as being the reward of their labour But as to Subjects an example we have in the Nations of the Jews Numb 31.27 where God commands Moses to divide the spoil of the Midianites into two parts that is between them that undertook the War and went out to Battel and between all the Congregation And in ver 47. he subdivides that part which belonged to the Congregation and gave the fiftieth part thereof to the Levites that had the charge of the Tabernacle Thus David divided the spoil taken from the Amalekites equally between them that went down to Battel and them that guarded the Stuff Sometimes the Jews would divide the spoil 1 Sam. 30.24 and grant half to the Souldiers and as to the other part they admitted the maimed the Widows and the Orphans to have share with them So we read of Alexander's Souldiers 2 Mac. 28.30 that they always challenged the spoil taken from private men unto themselves only the most precious things they reserved and presented to the King Wherefore we find them accused for robbing the publick Treasury who had conspired to assume all the prey taken at Arbela to themselves so as to bring nothing to the Treasury But yet those publick things that belonged to the enemy or to the King against whom they fought were exempted from this Licence Thus it was with the Macedonians when they brake into Darius's Camp they carried away an infinite Mass of Treasure leaving no place unrifled but the Kings Pavilion only it being a custom received amongst them as Curtius notes as well as amongst most Nations to receive the Conquerour in the Pavilion of the conquered The custom of the Hebrews was not much unlike this of the Macedonians 2 Sam. 12.30 For they always set the Crown of the vanquished King upon the head of the Conqueror assigning all the Furniture of the Kings Palace or Pavilion unto him as his share of the spoil And amongst the Acts of Charles the Great we find that having conquered the Hungarians Whatsoever was taken from private men he gave to the Souldiers but what was the vanquisht Kings was brought into the Emperour's Treasury The Grecians distinguished them by their several names calling the publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the private 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as also they did those taken in the Battel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but those taken after Battel being publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which distinction was afterwards approved of by other Nations But it is plain by what hath been already said That the Romans during their ancient Commonwealth did not allow to their Souldiers so much yet they began to be more indulgent to them in their Civil Wars Thus you may read Aequilanum given to the Souldiers for pillage by Sulla And Caesar after the Battle of Pharsalia gave Pompey's Camp to be pillaged by the Souldiers with this Complement superest pro sanguine merces Quam monstrare meum est nec enim donare vocabo Quod sibi quisque dabit For loss of bloud a recompence I 'll make Not what I 'll give but what each man shall take And in another Civil War the Flavians being led against Cremona App. Civil 1. made all the haste they could the Night approaching to storm the City lest the pillage thereof should fall unto their Commanders and Legates having it seems been sufficiently instructed by Tacitus Tacit. Hist 3. Expugnatae Vrbis praedam ad militem deditae ad Ducem pertinere That the Plunder of a Town if stormed belonged to the Souldiers but if surrendred unto the General Ne manente periculo omissis hostibus praeda manus impediret quòd plurimas saepe Victorias corrupit Sub Corona But
Plutarch reciting that Saying of King Pyrrhus That he would leave his Kingdom to that Son who had the sharpest Sword saith That it was so said only to excite them to enrich his House with Blood and Rapine Whereupon he breaks out into this exclamation Adeo insociabile ferinumque est propositum plus suo habendi So wild and unsociable a thing is Covetousness Aristotle seems exceedingly to blame them who though they are not willing to admit of any King or Governor over themselves but him that hath the true Right yet regard neither Right nor Wrong in the Government of Foreigners The Lacedaemonians saith Plutarch place the greatest part of Honesty in their Country's profit Jus aliud nec norunt Plut. Agâ—s nec discunt quam unde Spartam putant posse augeri They will neither know or learn any other Law than how to enlarge their Territories The like Character do the Athenians give of them in Thucydides That among themselves and to their own Civil Laws The Lacedaemonians prefer publick profit before honesty they were very just but as to Strangers they esteemed exery thing honest that was pleasant and every thing just that was profitable But yet when one of the Spartan Kings pronounced that Common-wealth happy Which Pompey reproves which was bounded by the Sword and the Spear Pompey correcting him said Yea rather that Common-wealth is truly happy that is on every side bounded with Justice For which he might also have produced the Authority of another Spartan King who preferred Justice even before Military Prowess Upon this very ground because all Martial Power ought to be regulated by Justice for in case all men were just there would be no need of valour Justice preferred before fortitude Even Fortitude it self is by the Stoicks thus defined to be Valour contending for Justice When Agesilaus in Plutarch heard the Persian King stiled Great He demanded Quomodo me major nisi sit justior How is he greater than my self unless he be more just Themistius in his Oration that he made to the Emperor Valens elegantly discoursing how Kings should be qualified And to be extended to all Nations if Wisdom were to chuse them saith Not such as should think themselves entrusted with the care of one single Nation only but of all mankind neither should he profess himself to be a Friend to the Macedonians only or to the Romans but to all Men and all Nations whatsoever As M. Antoninus sometimes said of himself Civitas Patria mihi est ut Antonino Roma ut Homini Mundus As I am Antoninus De non esu Animal l. 3. Rome is my Country as I am a Man the World So also Porphyry He that is guided by reason carries himself inoffensively towards his own Subjects yea and towards Strangers yea and towards all men See Cyril against Julian l. 6. Quanto ratione praestans tanto Divinior The more he partakes of Reason the more he partakes of the Divine Nature The very Name of Minos was odious to Posterity for no other reason but because he extended his Justice no farther than his Dominions Each Country groaned under Minos Yoke That even in War some Laws are in force Now what some have fansied namely That Inter Arma cessant Leges In War all Laws lye asleep is so far from truth that no War ought to be undertaken but for the prosecution of a mans Right nor any that is undertaken managed beyond the bounds of Justice and Faithfulness It was very well said of Demosthenes That War might justly be made against those who cannot be compelled to do us right in a judicial way Now against such as are sensible of their own weakness Judgments are forceable enough and so no need of War But against such as are or think themselves of equal strength if they will not do right War may be justly undertaken which also that they may be altogether righteous must be managed with as much Conscience as judgments are usually passed Admit then that Laws may sleep in the midst of Wars yet they must be those only that are Civil and Judicial But such only as are Civil and Judiciaâ— such I mean as are proper to peace but not such as are perpetual and fitted unto all times It was very well said therefore by Dion Prusaeensis That written Laws are of no force amongst Enemies but such as are unwritten That is Such as Nature her self dictates or the consent of Nations constitutes are in force even in the midst of Arms. There are Laws in the midst of Arms. When one asked King Alphonsus Whether he thought himself most indebted to Books or Arms he readily answered That he was beholding to his Books both for the knowledg of his Arms and also for his knowledge of the Laws of Arms. So also Plutarch Sunt apud bonos viros quaedam belli jura Amongst good men there are some Laws to be observed even in War Neither are we so to prosecute Victory as to enrich our selves by base and dishonest gain Eas res puro pioque duello quaerendas censeo This appears by that ancient form of the Romans These things I judge ought to be acquired by a just and pious War These very ancient Romans as Varro notes were very slow in making War and not very licentious when they did make it because they approved of no War but what was pious Camillus was wont to say That War was to be waged with no less Justice than Valour The like Testimony doth Scipio the African give of the People of Rome in his time namely that they always began and finished their Wars justly And another Author tells us That there are Laws for War as well as for Peace A third admires Fabritius for a gallant Soldier but principally for that which in War was very rarely found namely his Innocence as believing that some things usually done against an Enemy were impious What great power and efficacy the justness of a Cause hath Historians do every where declare The goodness of a Cause is of great efficacy in war Proverbial Sayings whilst they ofttimes ascribe the Victory to this as to its principal cause From whence arise these Proverbial Sayings The Courage of Soldiers do either rise or fall according to the equity of their Cause He seldom returns in safety that willingly engageth himself in an unjust War A good Cause is never unattended with hopes Thus Pompey in Appian cheers up the Spirits of his Soldiers We saith he must place all our confidence in the Gods and in the goodness of our Cause as having entred into this War upon honest and just grounds for the defence of the Common-wealth Thus likewise doth Cassius encourage his Soldiers by telling them That the greatest hopes were always where there was the best Cause The like we may read in Josephus Antiq. hist lib. 15. Abs quo stat Jus ab eo
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
Christians who would espouse no Sect of Philosophers Not that they were of their Opinion who held That nothing could be known than which nothing can be more absurd but that there was no Sect that could discern all Truth nor any but what held something that was true Wherefore to collect Truth thus scattered and through so many Sects disperst into one Body this they conceived to be nothing else but to deliver a Doctrine truly Christian Thus thought Justin Martyr as appears by the first of his Apologeticks The Doctrines of Plato were not much different from those of Christ nor were they altogether the same So neither were the opinions of the Stoicks Poets or Historians for every one of them having some impress of Reason saw in part what was consentaneous thereunto and so far they said what was right For those very manners Ep. 96. De ver rel c. 3. saith St. Augustin which Cicero and other Philosophers so highly commended are both taught and learned in all our Churches now flourishing through the world And in another place speaking of the Platonists De Conf. l. 7. c. 9. lib. 8. c. 11. he saith That some few things being corrected they might pass for Christians It was not without cause that some of the Platonists and ancient Christians dissented from Aristotle in this That he placed the very nature of Virtue in a mediocrity of Affections and Actions which being thus placed drove him to this That he compacted two several virtues namely Liberality and Parsimony into one And gave unto Truth two Opposites not equally distant from it namely Vain-boasting and Dissimulation and imposed the name of Vice upon some Things either not existing or which of themselves are no vices as the contempt of Pleasure and Honour and a vacuity of Anger against men But that this foundation of his if taken universally is not rightly laid will appear even from Justice it self whose opposites being too much or too little when he could not find in the affections and their subsequent Actions he was inforced to seek for both in the very things themselves about which Justice was conversant Which very thing is in the first place to leap from one Genus to another which he deservedly blames in others And in the next place To receive less than what is our due may have somewhat of Vice adhering unto it as Circumstances may happen For it may be that what any man so abates he may owe to the relief of either himself or of his Relations But certainly it cannot be repugnant to Justice which wholly consists in abstaining from what is another mans Such another fallacy is this that he would not have Adultery proceeding from Lust and Murder proceeding from Anger to belong properly to Injustice whereas notwithstanding Injustice is nothing else but the detention of another mans Right whether out of Lust or out of Anger or out of an unadvised Charity or out of an Ambition or Vain-glory from whence the greatest injuries do usually arise it matters not For to trample upon all temptations whatsoever rather than to dissolve Humane Society this truly is the proper work of Justice But to return from whence we came True it is that to some virtues Some vertues require the moderation of our affections it falls out so that the affections must be moderated but not because it is proper and perpetual to all virtues that they should be so but because Right Reason whereupon Virtue always and every where attends doth in some prescribe a measure to be followed Others not whereas in others it excites to the highest degree of what we can do It was well said of Agathias Lib. 5. Of the motions of the Mind those are simply and altogether to be embraced in which that which is agreeable to our duty and worthy our choice is sound and sincere But in those which may haply decline unto evil we must not simply and absolutely follow but so far only as is convenient Prudence is a pure and uncorrupted good which none will deny In Anger that which stirs us up to action is commendable but that which exceeds moderation to be avoided as being damagable Love God too much we cannot for Superstition sins not in this that it worships God too much but in that it worships him perversely Neither can we be said excessively to desire things that are good and that are eternal or excessively to fear those torments which are everlasting nor too much to hate sin It was therefore truly said of Gellius Some things there are of so vast extent that they will admit of no bounds or moderation and that are so much the more praise-worthy as they are greater and larger Lactantius when he had largely discoursed of the Affections said Non in his moderandis sapientiae ratio versatur c. True Wisdom consists not in the moderation of these but in the causes of them because these are moved by some things that are without us Neither should a restraint be put principally upon them because they may be but small in the greatest crime and they may be very great without any crime Our purpose is to magnifie Aristotle Histories have a twofold use in this Treatise but with the same freedom as he himself took against his Masters in favour to Truth Histories have a double use as to the matter in hand for it supplies us with examples and Judgments in most cases As for examples The better the Times and the People were the greater was their Authority for which reason we make choice of the ancient Grecians and Romans rather than of others Neither do I despise their judgments especially when they agree For the Law of Nature as we have said is in some measure from hence proved but the Law of Nations cannot be proved otherwise The Opinions and Sentences of Poets and Orators are not of so great Authority but yet we sometimes make use of them not so much because we count them Authentick or Authoritative but rather as Ornaments to Confirm what otherwise we do prove The holy scriptures Of the authority of such Books as holy men by the afflate of Gods Spirit have written or approved we often make use yet with some difference between the Old and New Testament The former is by some quoted for the very Law of Nature but without doubt erroneously for many things therein do proceed from the free-will and pleasure of God Not repugnant to the Law of Nature which notwithstanding is no whit repugnant to the truth of the Law of Nature and so far Arguments may be rightly drawn from thence so that we carefully distinguish that Law of God which God by men doth sometimes execute and that which men execute among themselves We have as nearly as we could avoided both this error and another contrary unto it which is The Old Testament not useless since the New was published that after the times of the
Kings serve God according to his command as Kings when they encourage vertue and depress vice not only in things appertaining to humane Society but in things appertaining also to the worship of God And so in another place How saith he do Kings serve the Lord in fear Ad Bonif. Ep. 50. unless it be in prohibiting and by a Religious austerity punishing all manner of impiety For to serve God as a man is one thing but to serve him as a King is another And a little after Herein do Kings serve God as Kings when in zeal to his service they do those things which none can do but Kings Arg. 2 The second Argument whereby we prove that all Wars are not unlawful is drawn from that place of St Paul before cited in the 13th to the Romans Rom. 13. where it is said That the highest powers and such are those of Kings are ordained of God and that power is therefore called Gods ordinance Kingly Government asserted by St. Paul From whence we inferr the necessity of our subjection together with that honour and reverence we owe unto them and that not so much out of fear regarding the power they have to hurt and punish as out of Conscience as it is Gods ordinance and out of a strong perswasion that in resisting it we resist God himself Now if the thing understood by the word Ordinance were only that which God permits and will not hinder as all actions that are vitious then would there follow no obligation of honour or obedience especially that extended to the Conscience and therefore the Apostles whole Argument would instantly fall to nothing whose main scope was to extol this Regal power which if wicked he could never do but by the same Argument he might as well have commended Theft and Robbery It must necessarily follow then that by this ordained power we understand such a power as God doth especially approve 〈◊〉 and then we may safely inferr That seeing that God cannot will things contrary to â—â—mself that this power is no ways repugnant to that will of God which is revealed in the Gospel and which obligeth all men to honour and obedience neither doth it at all weaken the force of this Argument That at that time when St. Paul wrote all Kings and Princes were strangers to the Christian Faith For in the first place this is not Universally true for even at that time Sergius Paulus being Propraetor of Cyprus had given up his name to Christ long before Acts. 13.12 Act. 13.12 Besides this dispute is not concerning persons whether pious or impious but concerning the Kingly function whether it be ordained of God or usurped by men which St. Paul seems here to determine plainly asserting That ordinance to be from God and thereupon concludes That it ought to be honoured and obeyed and that not outwardly only for fear but even in the inmost recesses of the mind where God alone doth properly reign Christianity then doth not abolish Soveraignty Nero and Agrippa though they had received this faith yet had still remained the one an Emperor the other a King which necessarily inferrs the power of the Sword For as under the Law the Sacrifices were reputed holy See Chrysost in locum supra citatum though offered by Hophni and Phineas Priests unholy so Pia res est imperium quamvis ab impio teneatur The Function is Sacre◠〈◊〉 though the person be never so wicked Saul was anointed King as well as David Arg. 3 A Third Argument is drawn from the words of St. John the Baptist who being demanded by the Jewish Souldiers what they should do to flee from the Wrath to come did not command them presently to lay down their Arms and desert their calling though they fought then under the Roman Banners as in all probability they would have done had it been contrary to the Christian Law to make War but allowing their calling he only labours to reform the abuses of it exhorting them to abstain from acts of unlawful violence and from false accusing and to rest content with their wages Luk. 3.14 Luke 3.14 But here some object That there was so great a difference between the precepts of Christ and the prescriptions of the Baptist that the Baptist seems to preach one Doctrine and Christ another but this we cannot admit first because both of them declare the sum and substance of the Doctrine they intended to preach in the same words Repent for the Kingdom of Heaven is at hand so begins the Baptist Mat. 3.2 And so Christ Mat. 4.17 And Christ himself saith The Kingdom of Heaven that is the new Law for it is the manner of the Hebrews The Jews call their Law Kingdom to call their Law by the name of Kingdom began to suffer violence from the daies of John the Baptist Mat. 11.12 John is said to preach repentance for the remission of sins Mark 1.4 So did the Apostles in the name of Christ Acts 2.38 John required fruits worthy of repentance and threatens destruction to those that do not produce them Matth. 3.8 10. He requires also works of Charity beyond the Law Luke 3.11 The Law also is said to continue till the days of John that is until the new and more perfect Law should with him begin Mat. 11.13 And for this cause it is that John is said to be Prophetis major Greater than the Prophets Mat. 11.9 Luk. 7.26 and that he was sent to give knowledge of Salvation unto the people Luk. 2.77 and to preach the Gospel Acts 19.4 Joh. 1.29 Mat. 3.11 Mat. 1.8 Luk. 3.16 Luk. 2.18 Neither did John ever distinguish Jesus from himself by any difference that there was in their Doctrines but only thus that what John declared generally and confusedly was more distinctly delivered by Christ who was the true light but by this That Jesus was the Messias that was promised the King of an heavenly Kingdom who should give the power of the holy Ghost to those who should believe on him The Fourth Argument and which seems to me of no small force is this That if by the Arg. 4 Gospel alâ— power were taken away from the Magistrate to execute capital punishments An Aâ—gument â—â—â—â—r â—â—om 〈◊〉 conâ—â—ouâ—◠〈◊〉 tâ—â—t â—ou â— follâ—w together with that of the Sword to defend their Subjects from Thieves and Robbers how soon would the Christian world be over-run with Rapin and violence and what a Deluge of wickedness of all sorts would break in upon us That this must needs be the consequence we shall easily grant if we either remember what sad effeâ—ts this remisness brought upon the old world or if we do but observe how hardly these sins of Rapin Cruelty and the like are restrained now even by capital punishments For the suppressing whereof Tribunals Laws and so many kinds and degrees of punishments are invented saith Chrysost in serm ad Patrem fidelem Wherefore if Christ
reis It is the duty of a Priest to interceed for the guilty saith Aug. And there is a right introduced by Custom That they that flee to the Altar for Sanctuary are not to be delivered up until faith be given for the saving of their lives and that such as were for misdemeanors delivered to Prison should at Easter be freely released but he that throughly perpends these and such like Customs shall find That they proceed rather from minds full fraught with Christian Charity which watcheth all opportunities and occasions to do good than from minds quarrelling at the equity of Capital punishments whence it was that the priviledges of those times and places yea and the very intercessions themselves were moderated with some exceptions as we may learn by Cassiodore But here some will object against us the 12th Canon of the Council of Nice Lib. 11. c. 40. 12 Can. of Nicen Council which sounds to this sence If any being by the grace of God called shall first express their faith by deserting the War and afterwards returning to their vomit shall by money or favor seek to be re-admitted into the War these after the three years allowed them to hear the word shall remain among the Penitentials for ten years But in this case a strict observation must be taken how such persons stand affected and what fruits of Repentance they bring forth for whosoever among them shall shew forth their sincere conversion by fear by tears by Patience and good works without dissimulation these fulfilling their three years of hearing shall at length communicate in prayers and afterwards it shall be lawful for the Bishop to deal more tenderly with them But if any of them shall bear it but indifferently and shall think that their very entrance into the Church is sufficient these shall fulfil their whole time Whereunto I answer that by the time of 13 years Penance we may collect That the sin was neither small nor dubious for so great a punishment must needs be inflicted for some Crimes that were both to God abominable and to all good men scandalous which without question was Idolatry For the words preceeding in the elventh Canon do manifestly referr us to the times of Licinius which gives a very great light to the understanding of the sense of this Canon This Licinius as Eusebius relates in his War against Constantine Hist Eccl. â— 10. c. 8. first turned all Christians out of their houses and made sale of their goods then drew out all the Christian Souldiers and Officers both out of his Armies and Cities from the rest and then commanded That unless they would of their own accord sacrifice to Devils they should all of them be cashiered from their Offices Which fact of his was afterwards imitated by Julian whereupon many renounced their commands and among them one Victricius so did 1104 more in Armenia under Dioclesian concerning whom there is honourable mention made in our Martyrologies and so in Aegypt did Menna and Hesychius So also in the times of Liciuius did many renounce their Commands amongst whom was Arsacius mentioned among the Confessors and one Auxentius afterwards made Bishop of Mopsuestia Now they that out of tenderness of Conscience had formerly renounced their Commands had no possible means to be re-admitted under Licinius but by a publick Abjuration of the Christian Faith wherefore as they that were so admitted committed much the greater sin being against knowledge and Consciâ—â—ce so they deserved a much greater punishment than those mentiâ—â—ed in the foregoing words of the Canon namely that without any danger either of life or goods had renounced their Christianity But to interpret this Canon so generally as if it comprehended all manner of going to War is infinitely against reason For the same Historian testifies That many of them that under Licinius had laid down their Arms and whilst Licinius Reigned did never reassume them because they would not abjure their faith in Christ being by Constantine left to their own choice were upon their request re-admitted There are likewise that urge against us the Epistle of Pope Leo where it is said to be against the Ecclesiastical Canons to return into a Secular War after the Act of Repentance But here we must understand That from Penitentiaries as well as from Priests and Monks there was required a more strict and austere course of life than what was required from other Christians That they might be as great examples to others of Contrition and Humiliation as they had been before of prevarication For as Leo well observes Illicitorum veniam postulantem oportet etiam multis licitis abstinere It is but just that he that begs pardon for his unlawful acts should abstain from some things otherwise lawful So in an Epistle wrote by some Bishops to King Lewis we read Quilibet tanto à se licita debet abscindere quantò se meminit illicita perpetrasse Every man ought so far to abridge himself of things lawful by how much he remembreth that he hath committed some things unlawful So in those ancient Customs of the Church which to gain the greater reverence are commended unto us under the name of the Apostles Canons It is decreed that no Bishop Priest or Deacon should addict himself to the War so as to retain the dignity of both Functions both Civil and Sacerdotal But leaving unto Caesar the things that are Caesars they should give unto God the things that are Gods Whereby it appears that they who were not thought worthy to be admitted to Ecclesiastical dignities were not interdicted those that were Military with this also That none who after Baptism had obtained any Office Civil or Military could be admitted into the Clergy As may also be collected from the several Epistles of Syncius Innocentius and from the Toletan Council For Clergy men were not chosen out of any sort of Christians but out of such as were likely to be exemplary unto others in austerity of life and manners Besides upon Military Officers as also upon some Civil Magistrates there lies a perpetual obligation But such as put themselves into Holy Orders ought not to be entangled with any other care nor diverted by any other daily Labour For which cause it was provided by the 6th Canon That no Bishop Priest or Deacon should take upon them any secular imployment nor thrust themselves into any publiclk Office And by the 6th Canon of the African Council Can. Apost 6.8 Vid Ep. Hier. ad nepot They were forbidden to be Sollicitors of other mens affairs or to defend other mens causes But that which gives the greatest reputation to our opinion is the judgement of the Church which we have set down in the third Canon of the first Council of Arles which was held under Constantine The words sound thus Concerning those that cast away their Arms in the time of peace it pleaseth the Synod that they should be debared from the Communion
Cicero speaks De leg 3. To reckon up all the inconveniences only in any Government and to pass over with silence all the conveniences is unjust because the good that we seek for we cannot obtain without the evil which we would avoid But of these several kinds of Government our choice being made and the right thereby transferred to another to reassume it at our pleasure upon what pretence soever is unjust Many causes there may be for which a people may be induced to renounce and yield up unto others all right of Government As namely Many reasons there may be why a people may yield up themselves to be Governed by another when they shall be reduced into so great danger of their Lives that no other way can be found whereby to defend themselves or when they shall be opprest with so much want as that they cannot otherwise sustain themselves Thus the Israelites being distrest by the Ammonites sent for Jephtha and rather then be opprest by a Foreign enemy they transferred the Government upon him whom before they had banished Judges 11. This also was the condition of the Campanes when they surrendred themselves unto the Romans in this Form We say their Embassadors in the name of all the people of Campania do freely surrender and give up our selves our City Capua our Fields Temples together with all that we have both divine and humane into your power O Conscript Fathers And some people we may read of who have offered themselves to the Romans upon condition of protection only and have been rejected App. Liv. lib. 5. lib. 8. as the Falisci and the Samnites And if so what then should hinder but that some people may in like manner surrender all power and right over themselves to some one man by whose wisdom and power they expect protection Also it may so happen that a man having vast possessions will not admit of any to inhabit his Countrey but under condition to submit to his Jurisdiction or It is possible that a man having large Territories and a multitude of servants may manumit them giving to each a proportion of Land on condition that they yield him their subjection with some kind of Tribute Precedents of this nature we want not Tacitus speaking of the Germans saith That every servant hath his several house and peculiar estate and governs his own Family his Lord imposing upon him what proportion of Corn Cattle and Garments he pleaseth which he readily payes and as a servant hitherto obeys Add hereunto what Aristotle observed That some men are naturally servants Some people naturally servile that is so apt for servitude as if Nature had made them for no other use and so are some people too of so servile a disposition that they know better how to obey than how to govern such were the Cappadocians who told the Romans plainly Strab. lib. 12. when they offered them Freedom that they could not live without a King Just l. 38. So Philostratus in the Life of Apollonius It is but solly to set at liberty the Thracians Mysians and Getes for they value it not Besides there were not a few people who have been perswaded to admit of Kingly Government by the example of other Nations who for many Ages have been observed to live very happily under it Seneca speaking of Brutus saith Though he were in other matters a gallant man yet in this he seemed to me to err Lib. 2. de Benef Not to have behaved himself like a Stoick That he was either affrighted at the Name of a King when the best Form of Government is that which is under a good King Or hoped for Liberty there where the rewards due to Empire and Subjection were so great Or that he could believe it possible to recall the Primitive Government The best Government is under a good King unless he could restore the Citizens to their ancient Manners or that he could reduce them to an equality of Civil Rights and put in force their ancient Laws when he saw so many thousands of men to fight Non utrum servirent sed utri Not whether they should obey or not but whom they should obey Some Cities saith Livy were so well pleased with the Government of Eumenes that they would not have changed their condition with the Freest Cities in the world The like is recorded by Isocrates That many deserted the Free Cities of Greece to live in Salamina a City in Cyprus under the Mild Government of Evagoras Again such may be the condition of a City that there remains no probable hopes of safety unless they put themselves under the Dominion of one single person Such was the state of the City of Rome which most wise men thought could not have been preserved had not Augustus Caesar assumed to himself the sole Government of the whole Empire Such cases I say not only may but do usually happen as Cicero observes in the second of his Offices But as hath been already said like as private Dominion may by a Just War be lawfully acquired so also may Civil Dominion or the right of Empire if it depend not upon some other Nor would I be thought to speak this of Monarchical Government only where that is received but the same Arguments will hold for the acquiring of an Oligarchical Government where the Nobles have excluded the Commons and assumed the Government upon themselves What that there is any Common-wealth so popular wherein some as the poor the stranger women and youths are not excluded from publick Counsels Even now there are some people also that have others truckling under them and who are no less subject unto them than they could be unto Kings Liv. lib. 1. Whence ariseth that Question in Livy Are the Collatine people under their own Jurisdiction or have they any power that is their own And the Campanes when they surrendred themselves unto the Romans Lib. 7. are said to be under the Jurisdiction of the Romans Acarnania as also Amphilochia are said to be subject to the Aetolians so are Peraea and Caunus to the Dominion of the Rhodians The Emperour Otho gave all the Cities of the Moors to the Province of Granado in Spain as Tacitus testifies So did Philip the City Pydna to the Olynthians Some Kings are so absolute that they are not subject to the whole body of the people Many other examples are here produced all which were absolutely Null if it be granted That the Right of Government be at the disposal of them that are governed Again some Kings there are that are not subject to the whole body of the people as Histories both Sacred and Prophane do testifie If thou shalt say saith God to the Israelites I will set a King supra me above me Deut. 17.14 Deut. 17.14 And unto Samuel saith God Shew them the right or manner of the King that shall reign over them 1 Sam. 8.4 The like we may
other creatures Wisdom furnisht them with such natural Muniments as were sufficient to defend them from violent incursions and sudden dangers But unto man being sent into the world naked and unarmed the better to instruct him in Wisdom hath God besides other endowments given him Natural affection whereby we are taught to love cherish and defend each other and readily to give and receive aid and assistance one to and from another against all outward assaults and dangers whatsoever III. Or Instrumental as Servants c. By Instruments here we mean not Arms or such like wherewith we either offend others or defend our selves But such voluntary Agents as are contented to receive directions from others Such as a Son is to his Father being a part of himself naturally or as a Servant to his Master of whom he is legally a part For as a part doth not only refer to the whole in the same relation as the whole is the whole of the part but this very thing That it is is the whole So Possession is said to be something of him that possesseth it And Servants saith Democritus are to be used as we do the members of our body some to one purpose and some to another Now what Servants are to a Family the same are Subjects to a Common-wealth and so are as Instruments to him who hath the Supreme power IV. Naturally no man excused from War Without doubt Naturally all that are Subjects may be employed in the War though some special Laws may excuse some as heretofore Servants among the Romans and now every where the Clergy As the Levites among the Jews were not liable to the duties of War as Josephus testifies which Law notwithstanding as all others of that nature must admit of the exception of extreme necessity And let this suffice to be spoken in general concerning Subjects and Servants For what more especially concerns them shall be handled in their proper places Hugo Grotius OF THE RIGHTS OF PEACE WAR BOOK II. CHAP. I. Of the Causes of War And First of War made in our own defence I. What Causes may be said to justifie a War II. That they arise either from our own defence or from requiring what is our own or is due to us or from punishment III. War made for the defence of our Lives lawful IV. Against the Aggressor only V. In such dangers as are imminent and certain not in such as are opinionative only VI. War made in defence of our Limbs lawful VII Especially in defence of Chastity VIII War made in defence of our selves may sometimes be omitted IX Our defence made against a Person publickly very profitable sometimes unlawful by the Law of Charity X. To kill a man for a box on the ear or for some such reproach or rather than flee not lawful for a Christian XI To kill a man in defending our Goods by the Law of Nature not unlawful XII How far permitted by the Law of Moses XIII Whether and how far permitted by the Evangelical Law XIV Whether the Civil Law permitting a man to kill another in defence of himself do give a right so to do or only an impunity explained by a distinction XV. When Duelling may be lawful XVI Of defence in a War that is publick XVII If only to weaken the growing power of a Neighbour Prince the War be to be reputed unlawful XVIII The defence of him who hath given just cause of a War is likewise unlawful I. LET Us now proceed to the Causes of War I mean those that justifie a War for there are others that excite men to War under the notion of Profit which are sometimes distinct from those which excite upon the account of Justice which as well between themselves as from the beginnings of War such as was the Hart in the War between Turnus and Aeneas Polybius doth accurately distinguish 3 Hist And though the difference between these are manifest yet are the terms usually confounded For even these causes which we call justifying Livy in the Oration of the Rhodians calls the beginnings of the War Lib. 45. Surely ye say the Rhodians are those very Romans who pretend that your Wars are therefore successful because they are just and that glory not in the event that ye can conquer but in the beginnings that ye never make War but upon just cause And indeed there was hardly ever any Nation that did so long pride themselves in the justice of their Quarrels as the Romans did The Romans saith Polybius took very great care not to begin a war with their Neighbours and would have all men believe that they never made war but to repel Injuries This Dion testifies in that notable comparison he makes between the Romans and Philip of Macedon and Antiochus And elsewhere he tells us That the Romans took special care that their Wars should be just nor did they ever decree a War rashly or without just cause In the same sence doth Aelian call the Causes of War Lib. 12. c. 53. the beginnings of War And Diodorus discoursing of the war between the Lacedemonians and the Aelians makes the pretences and the beginnings of the War to be the same These justifying Causes of War are the proper Argument of our present discourse Lib. 8. whereunto that of Coriolanus in Halicarnassensis is pertinent Let your first and principal care be that the ground of all your Wars be pious and just So is that likewise of Demosthenes Oâ—yâ—th 2. As in the building of houses Ships and such like the Foundation or Ground-work should be firm and lasting otherwise the Superstructures will soon decay and totter So in all our Enterprizes Justice and Truth should lay as it were the first stone Lib. 12. if we expect that the success should be honourable No less pertinent to this purpose is that also of Dion Cassius In all our Wars let our chief regard be to Justice for if she lead up the Van true valour may bid fair for the victory But if she be wanting though our first attempts flatter us De rep l. 3. yet will the end prove inglorious And that also of Cicero Those wars are unjust that are undertaken without cause And therefore in another place he sharply reproves Cassius for passing with his Army over Euphrates when there was no just cause of War given which holds true no less in publick wars than it doth in private Hence ariseth that complaint of Seneca Do we restrain Homicides and punish Murderers and yet esteem the depopulation of whole Nations glorious Covetousness and Cruelty know no moderation Commissions are every day sent out by the Senate and People to execute Acts of Cruelty and what we privately forbid we publickly commend Homicidium cum admittant singuli crimen est virtus vocatur cum publice geritur When a private man commits a murder he is punished as a Criminal but when thousands are publickly taken away and destroyed it is
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be
Kingdom of Epirus by the Judgement of his Father Pyrrhus having no lawful Issue Paus l. 1. The Tartars make no difference between Bastards and them that are Legitimate So Herodotus of the Persians Mos est illis ut Nothus regnet dum legitimus aliquis reperitur Who admit of Bastards till one that is legitimate may be found And we read in Justine of a Treaty between King Atheas and Philip concerning the Adopting of Philip to succeed him in the Kingdom of Scythia Jugurtha though a Bastard Salust bell Jugurth yet succeeded in the Kingdom of Numidia by Adoption The like we read of those Kingdoms which the Goths and Lombards conquered that the succession often passed by Adoption Nay Paul Diac. l. 6. de gest Longob the succession to the Kingdom shall pass to the nearest of kin to him that last possest it though he were nothing of kin to the first King If any such succession be in force in those places Thus did Mithridates in Justine plead That Paphlagonia became his Fathers Inheritance by the death of all its domestick Kings XIII In Kingdoms that are Indivisible the eldest succeeds But in case express caution be given that the Kingdom shall not be divided and yet it be not exprest who shall succeed then the Eldest whether Son or Daughter shall enjoy the Kingdom So saith Nicetas Coniates Nature indeed observing her own order gives the greatest honour to the first-born But God hath a Prerogative above Nature and acts not alwayes by her order And speaking of Isaacius he saith That by his birth-right the succession to the Kingdom was his The like is said of Hircanus in Josephus In the Talmud under the Title of Kings we read That he that hath the best title to an estate of inheritance hath also the best title to the possession of a Kingdom and therefore the eldest Son is alwayes preferred before the younger Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne And in another place he terms it the Law of Kingdoms Livy makes mention of two Brethren Allobrogi contending for a Kingdom whereof the younger had the worst Title but the greatest Power Of all Darius his Sons Artabazanes being the first-born claimed the Kingdom as his birth-right Quod Jus ordo nascendi Natura ipsa gentibus dedit Which Right saith Justine both the order of birth Lib. 2. and Nature it self hath given to Nations which in another place he calls the Law of Nations Lib. 40. As Livy also saith It is a priviledge due by the order both of Age and Nature yet must this be understood with this restriction unless the Father by his Testament do otherwise dispose of the succession as Ptolomy in Justin did his Kingdom to his youngest Son But yet he that shall thus succeed is bound to gratifie his Brethren for their shares with all respect and honour if and as far forth as he shall be able to do it XIV A Kingdom by the peoples consent hereditary if in doubt is presumed to be indivisible But those Kingdoms that by the Peoples free consent are made hereditary may by guessing at the will of the people be transferred Now because it may easily be presumed that the people will give their consent to that which is most expedient therefore in the first place it will follow That unless some Law or Custome do otherwise determine as in many it hath and may do the Kingdom should stand entire and undivided because whilest so it will be the better able both to defend it self and to conserve the people in peace and unity Lib. 21. A Kingdom united is stronger than when divided Of this opinion was Justin Firmius futurum esse regnum si penes unum remansisset quam si portionibus inter filios divideretur arbitrabantur They judged that the Empire would be more firm being intirely possest by one than it could possibly be if divided amongst many Sons XV. The succession not to last beyond the line of the first King Again It being granted that the peoples consent is easily gained to what shall be most expedient it will in the next place follow That the succession should descend from the first King in a right line Because that Family was then electeed as being thought the most Noble which Family being extinct the Kingdom doth return back to the people Thus Curtius adviseth * Lib. 8. That the Soveraign Power be strongly fixt to one Royal Family which ought to claim by an hereditary Right For the people being so accustomed will not only reverence his person but will have the very name of their King in great esteem And therefore no man ought to usurp that dignity but he that was born unto it XVI Natural Issue not concerned in it Thirdly It will thence likewise follow That none should be admitted to succeed in the Royal Throne but he that is born Legitimate Not the Natural Sons because they are subject to be reproacht to whose Mother the Father did never vouchsafe the honour of marriage And therefore of such there can be no certainty who was the Father But in the succession to Crowns the people ought to have the greatest assurance that in such a case can be given to avoid Controversies For which cause it was that the Macedonians preferred Demetrius the younger Son to the Throne rather than Perseus the elder because he was born in lawful Wedlock Not Sons by Adoption because the people are apt to conceive greater hopes and to have their Kings in greater esteem and veneration when they know them to be descended from a Royal Stock Est in Juvencis est in equis patrum Virtus In Horse and Oxe we may descry The Syre's Generosity XVII Males preferred before Females in the same degree Fourthly That of those that have equal Title to the Inheritance either as being in the same degree or as succeeding to their Parents who were in the same degree the Male Issue be preferred before the Female because Men are fitter for War and to administer other Regal duties than Women can be XVIII The elder before the younger Fifthly That of Sons or of Daughters if there be no Sons the elder be preferred before the younger because it may easily be believed that as he is of more years so he either then is or may sooner arrive to be of sounder Judgement than the younger So Cyrus in Xenophon Imperium relinquo majori Natu I bequeath my Kingdom to my Eldest Son as being of most experience and consequently best knowing how to govern And because our green years will sooner ripen than our Sex change therefore the prerogative of our Sex is much to be preferred before the priviledge of our Age. Wherefore Herodotus where he tells us Lib. 7. that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom gives this as the reason Because
neglected to perceive Fourthly That he is not bound to make good that which he neglected to perceive because he neither hath the thing it self nor any thing that succeeds in the place of it VII Nor those that he hath given away this explained Fifthly If such a possessor shall give to another that which was given to him he is not bound to restore it unless in case he had not given that he must have given as much other wayes by sparing which he is so much the richer Sixthly If he sell the thing he bought he is not obliged unless it be for the overplus of the price it was bought for But if he sell the thing that was given he is bound to restore the price unless he have prodigally spent it which had it not been so given he had not so spent VIII Nor if he sell what he bought IX When he that sells what is anothers may reserve the price or a part of it Seventhly That another mans goods though bona fide bought must be restored neither may the price given for them be required from the Owner unto which rule we think it not amiss to add this exception unless it be where the Proprietor could not probably recover the possession of what was his without some charges as when things are possest by Pyrates †Ter. Heaut Act. 4. Scen. 4 5. For in this case what the Owner would willingly have spent to have recovered his Goods may be deducted by him that delivers them For the very regaining of the possession being not to be done without charge and difficulty is accordingly to be valued which charge and trouble being saved the right Owner having thus lost his thing is reputed by so much the richer And therefore since the buying this thing in the ordinary judgement of the Law be of no value yet as Paulus the Lawyer saith It is valuable if from the beginning it be agreed that the possession of what is ours being at present in another mans power may be bought And where things so bought are strictly required by the Owner without any moderate allowance Summam Jus summa Injuria Ter. loc supradicto though it may stand with the Rigour of the Law yet hath this Rigour so much of Injustice in it as the one is a gainer by the others loss Nor do I here require that the thing should be bought with an intent to restore it to the Owner In which case Negotiorum actionem That an Action of Negotiation may arise as there are some that affirm so there are others that deny For such an Action ariseth from the Civil Law Neither hath it any of those grounds or principles whereupon Nature introduceth this obligation Not much unlike is that which Vlpian relates of Funeral charges wherein a prudent Judge doth not alwayes walk by the same rule as in meer actions of Negotiation but gives himself a looser Rein which the nature of such an Action will very well bear And that which the same Vlpian in another place saith If any man mis-wage mine affairs not so much regarding me as his own profit and shall disburse money in so doing he shall recover by his Action not according to what he laid out but according to the benefit that I receive by it So the Owners of such Goods as in a Tempest to secure the rest are cast over-board shall recover a part of their losses from those whose Goods remain entire because he whose Goods are so preserved by the loss of mine is by my damage made the richer X. Another mans goods being sold cannot be restored but to the right Owner Eighthly He that buyes another mans Goods cannot restore them back to him that sold them to recover the price he paid for them because as soon as those goods did come under his power as we said already the obligation began to restore them to the right Owner XI Where the right Owner is not known we are not bound to restitution Ninthly He that is possest of a thing and is ignorant whose it is is not by the Law of Nature bound to give it to the poor though it be very pious so to do and in many places is well ordered to be so disposed the reason is because by the Right of Propriety no man can claim an interest in it but the Proprietor But to him that is ignorant who that is it is all one as if it had none For De non entibus non apparentibus eadem est ratio Of things that are not and of things that appear not there is the same reason as to him to whom they appear not XII What is received if due whether the cause be honest or dishonest is not to be restored naturally Tenthly By the Law of Nature whatsoever is received which another is bound to pay be the ground of that Obligation honest or dishonest is not to be restored although even this also be introduced by some Laws and that not without cause The reason whereof is because in respect of the thing it self no man is obliged to restitution unless that thing belong to another man But in this case he that was the right Owner before hath willingly transferred his right to another But it will be another thing where the manner of receiving it is vicious as in the case of Extortion For this is another kind of Obligation whereof we discourse not at present †Vid. St. Aug. Ep. 54. XIII The opinion confuted that holds That things consisting in number weight and measure may be transferred without the consent of the Owner Neither is that true which is delivered by Medina namely that the property of other mens Goods may come unto us without the Owners consent in case they are such things as are usually valued by weight number or measure For things of this nature may be restored in others of the same kind which is true if it be done with consent or if either by Law or Custome such a Consent may be reasonably presumed as when we restore what we borrow or when the thing it self being spent or consumed we restore the like in quantity and quality But without such a Consent either exprest or presumed and setting aside cases of necessity this giving of one thing for another is not to be allowed of CHAP. XI Of Promises I. That Naturally a Right may arise from Promises The contrary opinion refuted II. A bare assertion obligeth not III. That Naturally a single Promise obligeth but from thence no Right accrues to another IV. What that Promise is from whence a Right ariseth to another V. First It is required that the Promiser have the use of Reason The Law of Nature distinguisht from the Civil Law about Minors VI. A Promise made through Error whether it obligeth Naturally and how far VII A Promise made out of Fear binds yet is he that caused that Fear bound to remit the Promiser VIII That the Promise be
mercy For that Divine Law that commanded them to destroy the Nations Deut. 7.4 Exod. 23.33 being compared with another charge given by God concerning them Deut. 20.10 will admit of this limitation That if they yielded upon the first summons they might be received to mercy As is clear by the Histories of Rahab who for securing the Spies was saved Jos 16.10 Of the Inhabitants of Gezer who were suffered to live among the Ephramites and to serve them Of the Gergezites of whom St. Matthew records Mat. 8.28 that there were some living even until his time Neither shall we find these ennumerated among those that were to have been extirpated as you may read Deut. 20.17 Jos 9.1 And lastly It is clear by that Act of Solomon 1 King 20.20 21 whereby he is said to have received the remainder of the Canaanites whom the Children of Israel could not destroy as his Tributaries and Bond-Servants unto that day Yea and if we examine the cause of that severe charge given unto Moses for their extirpation as it is exprest Exod. 23.33 Deut. 7.4 we shall find that in case as the Hebrew Doctors observed they would submit to the Commandments given to Noah and his Sons and pay Tribute the cause of their extirpation being taken away they might live Now why Joshua might not as well spare the Gibeonites upon their Dedition as he did Rahab and the Canaanites of Gezer upon theirs no solid Reason can be assigned And yet that the Gergezites being the Off-spring of the Inhabitants of Gezer were spared and lived as Tributaries to the Israelites till Christs time is most evident by the Sacred story The immediate cause of the destruction of all the rest of the Canaanites was not any inexorable Command given by God to Moses for that left them a possibility to live because a power to submit But the hardness of their hearts which proceeded from God as a punishment for all their great provocations Jos 11.19 20. that so he might destroy them utterly without any mercy as the Lord commanded Moses Wherefore considering that in case the Gibeonites had dealt plainly with Moses which they durst not do for fear of him and had voluntarily given themselves up as Bond-servants It is probable that he would have spared their lives under the same condition as he did the Inhabitants of Gezer Therefore Valuit juramentum The Oath was to remain inviolable Yea and the breach of this Oath three hundred years after when Saul either forgetting the Oath of his Forefathers or out of a well-meant zeal slew some of these Gibeonites cost the lives of many thousand Israelites 2 Sam. 21.6 in the three years Famine which God brought upon Israel Of this opinion was St. Ambrose who handling this Question saith Joshua did not think it safe to break the Peace with the Gibeonites because he had confirmed it by Oath Ne dum aliorum perfidiam arguit De Off. l. 3. c. 10. suam fidem solveret Lest whilest he punished others for their perfidiousness he should be found guilty of Perjury Neither did this fraud of theirs go altogether unpunished For whereas had they dealt plainly they had been admitted upon paying of Tribute only now their Corporal Slavery is at once the price of their lives and the just Punishment of their Craft and Subtilty So were the Brutiani served by the Romans Loh 10. c. 3. as Gellius relates V. The words of an Oath not to be too far extended Neither should the meaning of an Oath be wrested to any other sense than the words do usually bear Wherefore when the Children of Israel having sworn not to give their Daughters in Marriage to the Benjamites did notwithstanding suffer the Benjamites to take the Daughters of Shiloh by force and to enjoy them they were not guilty of Perjury For it is one thing to give and another not to require what is already lost Whereof St. Ambrose speaks thus This Indulgence of theirs was not without a Punishment suitable to their Intemperance whilest they were permitted only to enjoy those whom they had ravished without the solemnity of Marriage Nec hortabantur Israelitae nec prohibebant saith Joseph The Israelites did neither encourage the Benjamites nor forbid them Now the Law saith Seneca may punish him that succoureth an exile but not him that only suffers him to be relieved Not much unlike was that request which the Achaians made to the Romans who were highly displeased at some things by them done and confirmed by Oath namely That the Romans would be pleased to alter what they would but not to bind them by any Religious Vow to null those things which they had already established by Oath VI. Oaths bind not to things unlawful Secondly That an Oath be binding it is necessary that it refer to things lawful For if the thing promised upon Oath be forbidden either by the Law of Nature or by the Divine Law or interdicted by humane Laws whereof more anon it hath no power at all to oblige us That which is unlawful to be sworn is unlawful to be done being sworn and that which is unlawful for us to do is unlawful to be sworn All Oaths have a tacite exception of the higher powers and of former Oaths Now God is greater than man and therefore having first bound our selves unto him no Oath made against him or against our duty to him ought by us to be performed but repented of No Weapon formed against him shall prosper saith the Prophet Es 54. It is good counsel that Philo gives in this case Let him that goes about to do an unjust act by reason of his Oath know That he doth not thereby perform his Oath but break it For an Oath is a sacred thing which deserves our greatest care and devotion to preserve whereby we stand obliged to do such things only as are just and honest For he doth but accumulate one sin upon another who to a wicked Oath adds a dishonest action Wherefore let him that hath ensnared his own Soul by a rash Vow yet refrain from doing wickedly That God who is rich in mercy may forgive him For wilfully to contract a double guilt when we may be discharged from a single one is an incurable madness Rash Vows are ill made and sometimes worse kept Our Tongues must not bind our hands to do wickedly 1 Sam. 25. David was less sinful in breaking his Oath and sparing the life of Nabal whom he had sworn to kill than Herod was in killing the Baptist or Agamemnon in sacrificing Iphigenia for their Oaths sake Surely Oaths were never invented to be the Bonds of Iniquity Praestare fateor posse me tacitam fidem Si scelere careat interim scelus est fides My Faith perform I can I do confess If void of Sin else Faith's but Wickedness Some Promises cannot be performed saith Ambrose nor some Oaths kept without the violation of our duties to God or Man And if
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
might not defend them Yea certainly they might but not by vertue of the League but by the Law of Nature which that League had not abrogated So that the Saguntines were at that time both to the Romans and to the Carthaginians in such a state as if in that League there had been no mention at all made of Friends In which case both the Carthaginians might revenge the injuries done them and the Romans might also justly defend them without breaking their League one with the other Thus the Romans answered the Samnites who desiring that they might have liberty to make War upon the Sidicines without offence to them That they knew nothing to the contrary but that the Samnites had power to make Peace or War upon whom they pleased And in the League made with Antiochus It was provided That if any of the Allies of the Romans should make War against Antiochus it might be lawful for him by force to repel them So as he held not any of their Cities from them by the Right of War nor contracted any Alliance with them Liv. l. 38. In the time of King Pyrrhus it was thus covenanted in a League between the Romans and the Carthaginians That in case either of the two Cities should make Peace with Pyrrhus it should be with a reservation of Liberty to send succours unto that City against which Pyrrhus should at any time make War I do not say that the War on both sides in these cases could be just But I deny that if either party did send succours unto the other they did therein violate the League made between them As Polybius rightly distinguisheth concerning the succour sent to the Mamertines Pol. l. 1. Whether it were just and whether it were lawful so to do without violating the League Thus doth Alamandaras King of the Saracens plead for himself That none of the Articles of the Agreement made between the Romans and the Persians had been by him violated for as much as he was not so much as named in them by either party Procop. Pers Thus also did the Corcyrians tell the Athenians That notwithstanding their League made with the Lacedaemonians they might send them succours because it was in their own power notwithstanding that League to admit of any new Friends at their own pleasure And the Athenians did afterwards assume this Liberty commanding their Generals not to make War against the Corinthians unless they saw the Corinthians ready to invade the Corcyrians in any of their Territories lest they should seem to break their League with the Corinthians For it is no breach of a League that they who are injured by others should by others be defended so long as the Peace in other things is preserved And so after these times the Corcyrians decreed That they would assist with their Arms the Athenians their Allies according to their Covenants and yet preserve the Rights of Friendship with the Lacedaemonians Justin writing of those very times saith That the Athenians broke that Truce in the name of their Allies the Corcyrians which they made in their own name with the Corinthians thinking it a lesser Perjury to help their Friends being invaded than to engage against the Corinthians in a Solemn War So the Athenians making a Peace with King Philip did expresly provide that those Grecian Cities that were not comprehended in that Peace might remain free And if any man did molest them it might be lawful for those that were included in that Peace to defend them And let this example suffice for equal Leagues XIV What is meant by this clause That one party shall not make War without the consent of the other In such Leagues as are unequal we shall give another If it be agreed that one of the Confederates shall not make War without the others Consent as it was in that between the Romans and the Carthaginians after the second Punick War and as it was also in the League between the Romans and the Macedonians before the reign of King Perseus Since under the notion of making War all Wars may be comprehended as well that which is Defensive as that which is Offensive The word is to be taken in its strictest signification lest the liberty of defending our selves being Natural should be too much straitened XV. That Carthage should be free how meant Of the same kind is that which the Romans promised namely That Carthage should be free which though it could not reasonably be understood of Absolute Power from the very Act for they had long before lost the Right of making War and diverse other priviledges yet was it to be presumed That some kind of Liberty should be lest them and so much at least that they should not be obliged to translate the Seat of their dwelling into a Foreign Countrey and to have their own City demolished It was therefore a foul gloss which the Romans did afterwards put upon that Promise when they urged That by Carthage they meant the multitude of their Citizens and not their City which though improper may be granted because of that attribute Free which is more agreeable to their Citizens than to their Town For in thâ—se words Carthage shall be left free was meant that it should be governed by its own Laws And as Diodorus Siculus expounds it That they should enjoy their own Laws and Territories their own Religious Rites their own Sepulchres and their own Liberties For so much was granted in leaving them free So that what the Romans objected was a meer cavil in making them free yet taking their City from them XVI What Arguments are Real and what Personal Another Question likewise doth usually arise concerning Contracts real and personal When we have to do with a free people there is no question but that the Contract that is made with them is in its own nature real because the subject is a thing permanent Yea though that popular State should turn into a Monarchy yet would the League hold because the body of the people is still the same though the head be changed neither doth the Supreme Power cease to be the power of the People because exercised by the King where we must except this case namely where it appears that the cause was proper to that State only as when Free Cities enter into a Social League for defence of their own Liberties But if a League be contracted with a King it is not instantly to be accounted Personal Because as Vlpian well observes for the most part the person is inserted in the League Not that the League is personal but that it may appear by whom that League was made But if it be inserted in the League That it should stand for ever or that it is so made for the general good of the kingdom or that it is made with him and his Successors For this addition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is usual saith Libanius in his defence of Demosthenes Or to continue for
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
extend the Obligation is not rashly to be admitted But with much more caution than in the case before mentioned where we admit of words in their largest signification though not much in use For here we raise our conjectures without regard had to the words promising which cannot introduce an obligation unless the Conjectures be very certain for here a parity of Reason is not sufficient unless it be the very same Neither is the same Reason at all times sufficient because as I said before Reason doth often so move us that to shew our own freedome our will is of it self a sufficient cause of our Promises without any other Reason Now to justifie such an extended conjecture beyond the words of the Promise it is necessary that it should plainly appear That the Reason under which that case which we would comprehend falls was the only and most efficacious cause which moved the Promiser and that that Reason was in its generality so considered by him because otherwise the Promise would prove either unjust or unprofitable As for Example An agreement that such a place should not be surrounded with walls being made at such a time when no other Fortifications were in use should doubtless extend to all Muniments though but of Earth in case it do appear that the only reason why Walls were prohibited was That that place should not be fortified Another Example is usually brought of a man who believing his Wife to be with Child disposeth his Estate to such a man in case that Child should dye which by all probable conjectures should be extended to this sense Or if such a Child should not be born For certain it is That the Will of the Testator was moved with this only consideration That then he should have no Child of his own to inherit it This case we shall find not among the Lawyers only Lib. 1 2. de Orat. Bruto pâ—o Caecina but in Cicero and in Valerius Maximus Cicero in his Oration for Caecina pleads this case thus What Is this sufficiently provided for in words No. What then was of force to do it The Will Which if it could be understood by silence we should have no need of Words But because that cannot be therefore were words invented but such as should not hinder the Will but declare it And a little after in the same Oration he adds Idem jus esse ubi perspicitur una atque eadem causa aequitatis Where there manifestly appeared but one and the same cause of Equity i. e. where there was the same solitary cause moving It may be presumed there is also one and the same Right Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another and he adds this reason Quia idem valent sponsalia quod Nuptiae Because saith he such Espousals are equal to Marriages Exod. 21 28 35. So likewise in the Mosaical Law under the name of Oxen are all gentle Beasts comprehended so is every Pool or Pond under the name of a Well So likewise an Injunction though it run in this form Vnde me vi dejeceris hominibus coactis armatisve Whence thou hast thrust me out by force and arms takes place also against all manner of force that threatens our life and limbs For that which is usually done by armed men if by any other counsels or means we are brought into the same danger the Law affords us the same Right and Remedy Quintilian the Father in one of his Declamations brings in this Example Murther doth usually signifie the effusion of humane blood by the Sword But if a man be killed by any other means we have recourse to the same Law For if a man shall fall among Thieves or if he be thrown into a River and there drowned or if he be tumbled headlong from an high Precipice his death shall be revenged by the same Law as if he had been killed by the Sword The like Argument we find used by Isaeus concerning the Inheritance of Pyrrhus where because by the Laws of Athens a Father having no Son could not make his Testament if his Daughter were unwilling he infers that neither had he without her consent the power of adopting one XXI Whether a Command given for one thing be fulfilled in doing another as profitable if not more And from hence that famous Question in Gellius may easily be answered concerning a Command given by our Superiour Whether it may be fulfilled though not by the same yet by another thing equally profitable or haply more than that which was commanded Servants saith Quintilian act some things more freely out of a good mind and even our Slaves bought with our Money do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded Which may be done if it appear That what was so particularly described but only under some general consideration which might also be otherwise obtained But if that do not sufficiently appear Lib. 1. c. 13. then we are to follow Gellius his advice in that place For the Authority of a General would quickly be contemned if what he commands should be disputed and not obeyed XXII Or restrained and that either by reason of some defect in the Will That Interpretation that restraineth the sence from what the signification of the words wherein the Promise is contained will bear is derived either from an originary defect of the Will or from the repugnancy of some emergent case with the Will The originary defect of the Will is understood either from some absurdity which would otherwise evidently ensue or from failing of the main Reason which alone did fully and effectually move the Will or from a defect of matter The first whereof is grounded upon this That no man is to be believed to will things that are absurd XXIII Or when the main Reason ceaseth The Second is grounded on this That what is contained in the Promise whereunto such a Reason is added or where it is plainly understood is not considered barely or simply but as it falls under that Reason XXIV Or when there is a defect in the matter The Third is grounded on this That the matter so restrained is always observed to be in the mind of him that promiseth although the words of the Promiser do admit of a large signification XXV An observation concerning the last recited Conjectures But as concerning the Reason that moves the Will we must observe That under it are comprehended not only things actually existing but sometimes things that morally considered may be which when it takes place no restriction ought to be admitted As when it is in any League provided That no Army or Fleet shall be sent to such a place they ought not to be led thither though there be no intention thereby to do harm because in that agreement not so much the present damage as all future dangers whatsoever are regarded
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
his gains but if the thing taken away do perish then the value of it not to the highest rate nor to the lowest but moderated Among these we may also rank such as defraud Princes of their lawful Customs and Contributions In like manner are they bound to reparation that have wronged others by either their unjust sentence or unjust accusation or by their false Testimony XVII In him that by fear or fraud causeth a Promise As also he that shall either by fraud force or unjust fear urge a Contract or a Promise from any man is bound to make reparation to the full For hereby he robs the man he deals with of a double Right First By the nature of Contracts he had this Right That he ought not to be deceived And then by the natural liberty that every man should have He ought not to be enforced or unjustly affrighted And among these we may likewise range those that will not perform what by their Office they are bound to do without Bribes XVIII What if the fear be naturally just But he that hath given just cause why he ought to be by force or fear compelled hath reason to blame himself For an involuntary act arising from a voluntary is naturally reckoned for a voluntary XIX What if the fear be held by the Law of Nations for just But as by the consent of Nations all Wars made and denounced by the Supream power on both sides are reputed just as to to the external effects whereof we shall speak more anon so is the fear of such a War so far reputed just That whatsoever is obtained thereby cannot be required back In which sense that distinction of Cicero's may be admitted which he makes between an Enemy with whom we enjoy by the consent of Nations many common Rights and a Thief or Pirate For if these extort any thing from us by fear we may require it back unless we are bound by Oath not to do it But so we cannot do from an Enemy Wherefore what Polybius writes concerning the Second Punick War namely that the Carthaginians had just cause to make it because the Romans by denouncing War against them whilst they were engaged in another War against their Seditious Mercenaries had enforced them from the Island of Sardinia and a great sum of money hath indeed some shew of Equity but is not agreeable with the Common Right of Nations as we shall elsewhere prove XX. How far the Civil power is bound by Damages done by their Subjects Kings and Magistrates are obliged to reparation if they do not make use of such remedies against Thieves and Pirates to suppress them as they may and ought to do For which neglect the Scyrians were condemned by the Amphictyones I remember that this case was once proposed amongst us when our Estates having granted Letters of Mart against our Enemies some of those to whom these Letters were granted abusing themselves and us had robbed our friends and leaving our Country betook themselves to the Seas and though recalled would not return whence arose this question Whether our States were bound to repair the damages by reason of Letters of Mart granted them either because they made use of such wicked instruments or because they did not require from them sufficient caution that they should not transgress their Commissions Whereunto I gave this answer That they were obliged to no more than to punish them being found or to deliver them up And besides to take care that reparation should be made out of the Goods of the Delinquents A judged case For that the States were not the causes of the depredations nor did they participate of them that they had forbidden them by severe Laws to wrong their friends but to require Caution from them they were not by any Law obliged seeing that they might empower all their Subjects without any Codicils to make what spoil they could of whatsoever was their Enemies as had been anciently done Neither was this permission the true cause of the wrongs done unto their friends seeing that private men might arm their Ships and put out to Sea even without permission Neither could they foresee that these men would prove wicked Nor could they altogether avoid the making use of wicked men for then it was not possible for them to raise an Army Neither if their Souldiers either by Sea or Land did injure their friends contrary to the Command of the Supream Magistrate were they obliged to reparation as might easily be proved by the Testimonies of France and England Yet in a League between Francis de Valois King of France and Henry the Eighth of England Herbert's Henry the 8. page 54. it was agreed the better to prevent Depredations by Sea that no Merchant of either Nation should depart out of their Ports without giving Caution to their respective Admirals that no wrong or molestation should be done by Sea to either of their Subjects But that any man should be bound to repair the Damages which his Servants shall without his fault and against his command do unto others belongs not to the Law of Nations by which this cause ought properly to be judged but to the Civil Law and yet not in the general but as it is introduced for some particular reasons against Mariners and some others And thus hath this case been determined by the Judges of the Supreme Assembly against certain Pomeranians and that according to Precedents of things of the like nature two ages before XXI The owner of a Ship or Beast that hurts his Neighbour not bound by the Law of Nature This also is worthy our observation that it proceeds from the Civil Law and not from the Law of Nature That we deliver up our Beast or Bond-slaves to punishment which have endamaged our Neighbour For the owner of them being innocent is naturally bound to nothing as neither is he whose Ship without his fault falls foul and hurts another though by the Law of diverse Nations as well as ours such Damages are usually divided between both because it is very difficult to be proved XXII The Damage against a mans honour how to be tepaired But the wounds we receive in our Honour or Fame as by Stripes Reproaches Curses and such like must have their proper cures And in these no less than in Theft and other Crimes the hainousness of the fact is discerned by the effect For as in those our reparation consists in the punishment of the Thief so in this The Damage we sustain is repaired by confession of the fault and by exhibiting all due Honour to him who is wronged and the publick Testimony given both of his innocency and our own repentance and such like means Although the offender in this kind may be punished in his purse if the injured person desire it because money is the Common Standard whereby all things tending to profit are measured CHAP. XVIII Of the Rights of Embassages I. There are some
Vejentine Embassadors That unless they departed the City they would shew them no more mercy Liv. l. 27. Id. l. 4. Lib. 10. than Tolumnius their King had shewed to the Roman Embassadors whom he commanded to be killed And as the Samnites declared to the Romans namely That if they entred into any Assembly in Samninus they should not depart in safety This Law therefore reacheth not unto those through whose Territories Embassadors presume to pass without Licence For if they are going to their Enemies or coming from them or do otherwise attempt any Act of Hostility they may be even killed Thus did the Athenians serve the Embassadors passing between the Persians and the Spartans So did the Illyrians Thucyd. l. 2. those that went between the Essians and the Romans Much more being taken may they be bound and kept in Prison as Xenophon past Judgement upon some and Alexander against those which were sent from Thebes and Lacedaemon unto Darius and the Romans against the Embassadors sent to Hannibal But if no such thing be and yet the Embassadors be evil treated the Law of Nations whereof we now speak is not thereby violated but the honour of those Princes either from whom they came or unto whom they were sent is thereby wounded and all friendship with them broken Thus writes Justine concerning Philip the latter King of Macedon Li◠29. That he sent his Embassador with Letters to contract Friendship with Hannibal who being taken and brought before the Roman Senate was dismist with safety Not in honour to the King but lest of a doubtful Friend they should thereby make him their certain Enemy But it is otherwise in case any Prince shall lay in wait to surprize the Embassador of another Prince without his own Territories for this is a violation of the Law of Nations as is plain by the Oration of the Thessalians against King Philip recorded by Livy VI. An Enemy is hereunto obliged if the Embassador be sent unto him But on the other side the Embassage being admitted the Law of Nations protects the person sent even among those Nations that are in Actual Arms one against another much more among such as are barely Enemies It is very true what Diodorus Siculus saith That Heralds enjoy Peace in the midst of War The Lacedaemonians who killed the Heralds sent from the Persians are said to break the Law of all Nations * Vide §. 1. If any man shall strike an Embassador coming from an Enemy he shall be judged saith Pomponius †L. ult D. de Legatis as one that hath violated the Common Right of all Nations because their persons are generally held as sacred And Tacitus calls this Right ‖ Ann. l. 1. Verrin 1. Lib. 5. c. 2. whereof we now treat the Right of Enemies the Sanctimony of Embassies and the Law of Nations approved by God himself So likewise Cicero Nonne Legati inter hostes incolumes esse debent Ought not Embassadors te be secured though among Troops of Armed Foes And Seneca in his Books of Anger He offered violence even to Embassadors thereby spurning at the Law of Nations A villainous Act a wicked Cause an impious Murder as Livy calls it in the Story of the Fidenates assassinating the Roman Embassadors And in another place when their Embassadors were brought into great danger he saith Ne belli quidem jura relicta sunt They had not left amongst them so much as the Rights of War Lib. 4. So Curtius He sent Embassadors to compel them to peace whom the Tyrians killed and threw headlong into the Sea contrary to the Law of Nations And deservedly For even in War many things fall out which cannot be transacted but by Embassadors and very hardly can Peace at any time be made without them VII Neither are Embassadors liable to the Law of Retaliation Another Question doth usually arise namely Whether a Prince may retaliate the wrongs done unto his own Embassadors upon the Embassadors of him who did that wrong And surely we may find in Histories many examples of revenges taken in this way And no marvel for Historians do usually record not only things that are justly and piously done but those also that are done unjustly in heat of anger rashly and impotently But the Law of Nations doth not only carefully provide for the honour of the Person sending but for the security of the Person sent So that there is as it were a silent Contract made between the Embassador sent and the Prince to whom he goes And therefore though there should be no injustice done in respect of the Prince that sends his Embassador as having justly deserved it for the affront given him in the wrongs done unto his Embassador yet to the person sent there would be done a manifest injustice because by vertue of that tacite agreement he might justly claim his Indemnity And therefore it was not only magnanimously but justly done by Scipio according to the Law of Nations who though the Roman Embassadors had been very hardly used at Carthage yet when the Romans brought the Carthaginian Embassadors unto him demanding what should be done with them made answer Nihil tale quale factum fuit à Carthaginensibus Nothing of that which the Carthaginians did unto the Romans Or according to what Livy adds Nihil se facturum institutis populi Romani indignum That he would do nothing unworthy of the Roman Discipline Whereunto Diodorus adds this Reason Lest what we blame in them we justifie in our selves And the Romans themselves though they were not ignorant of what the Carthaginians had done yet dismist their Embassadors in safety Thus did Constantius remit Titianus being sent unto him by Magnentius though his own Embassador Philip sent unto Magnentius had been hy him detained as Zosimon testifies And when long before the Roman Embassador Cornelius Asina was put in Chains by the Carthaginians and Hanno the Carthaginian Embassador being at that time in Rome was afraid of the like measure the Consuls stood up in the Senate and thus bespake him Isto te metu Hanno fides Civitatis nostra liberet Let the Faith of our City Hanno free thee from this fear VIII The priviledge of Embassadors extends to their Retinue Not only the Embassadour himself but his Followers and Goods are to partake of the same priviledge if he please And therefore the Ancient Form of words used by Embassadours and Heralds unto the Kings to whom they were sent were these O King dost thou admit of me as the Royal Messenger of the People of Rome together with my Goods and Followers And by the Julian Law not only they that offered violence to the persons of the Embassadours themselves but they that injured any of their Attendants were found guilty De vi publiea Of violence done by force and arms But this Sanctimony belongs unto them but as they are Attendants to the Embassadour and therefore no further due than he shall please
to Gods express Command Yet this he confidently asserts That no man ought to destroy himself to avoid either the torments of this life lest he incur those infinitely greater in the life to come or to prevent Sin in another lest he contract a worse in himself or for Sins already past which require a larger time to repent of or out of an impatient thirst after immortality because he that is guilty of his own death must not expect hereafter a better life De Civ Dei l. 1. c. 16. And yet elsewhere speaking of those who to preserve their Chastity killed themselves he adds Who can be so void of humanity as not to forgive them Among the Grecians also there was another sort of men exempted from Burial which custome the Locrians object against the Phocenses Diod. l. 16. saying That it was generally observed through all Greece that Sacrilegious persons should be cast out unburied The like doth Dion Prusaeensis report of such as are Atheists and notoriously impious And the very same punishment was ordained at Athens against such as were Traitors as Plutarch testifies But Nicetas in his Third Book of Alexius the Brother of Isaacius having declared the death of Joannes Comnenus Crassus who raised Sedition and affected the Empire saith That they afterward exposed his Body to be devoured by Birds and Beasts which was an act void of humanity and savouring too much of a Bruitish Cruelty But that I may retreat to what was first intended all ancient Writers do unanimously accord in this That a War may be justly undertaken for denying Burial to the dead as may clearly appear by the story of Theseus which is recorded by Euripides and Isocrates in the places before quoted VI. Some other things due by the Law of Nations There are also other things which by the voluntary Law of Nations are due As those things which have been long possest Succession to him that dyes Intestate and such things as we hold by Contracts though very unequal For all these though they have in some measure their rise from the Law of Nature yet do they receive confirmation by Humane Laws whether against the uncertainty of conjectures or against some exceptions which otherwise Natural Reason may haply suggest As we have already shewed when we treated of the Rights of Nature CHAP. XX. Of Punishments I. The definition and original of Punishments II. That they appertain to Commutative Justice and how III. It naturally belongs to no one person but may by the Law of nature be exacted by any that have not alike offended IV. Among men the end of Punishing is for some benefit but otherwise with God and why V. In what sense revenge is naturally unlawful VI. The profit arising from Punishment threefold VII As it respects the good of the delinquent it may naturally be exacted by any yet with a distinction VIII So also as it respects the good of the person injured and of lawful revenge by the Law of Nations IX And also as it respects the good of every man X. What the Gospel requires as to this matter XI The Argument drawn from the mercy of God set forth in the Gospel Answered XII Another concerning the cutting off the opportunity of repentance Answered XIII An imperfect division of punishments rejected XIV It is not safe for private Christians to exact punishment even where the Law of Nations allows it XV. Or to accuse any man willingly XVI Or to affect capital Punishments XVII Whether those humane Laws that permit the killing of a man as a Punishment give him a right or only impunity except by distinction XVIII Internal acts not punishable by men XIX Nor such external as humane infirmity cannot avoid XX. Nor such acts as neither directly nor indirectly do hurt to humane Society And why XXI The opinion that Punishments are never to be remitted rejected XXII That they may be remitted before the penal Law be passed XXIII Yet not always XXIV Yea and after the penal Law is past XXV What probable intrinsick causes justifie the doing of it XXVI What causes extrinsecal XXVII The opinion that no dispensation is to be granted for any cause but what is tacitely excepted in the Law rejected XXVIII Punishments inflicted for some merit XXIX Where respect is had to the causes impelling which are compared one with another XXX As also the causes which should withdraw us and of the degrees of the precepts of the Decalogue that concern our neighbour and some other matters XXXI Of the propensity of the offender to either which hath divers respects XXXII That the merit of Punishment may extend to a greater harm than that which the offender intended And why XXXIII An harmoniacal proportion in Punishments rejected XXXIV That Punishments ought to be mitigated out of Charity unless a greater Charity forbid XXXV The facility of sinning how it incites to Punishment also custom how it incites or disswades from punishing XXXVI Of what use clemency is in the mitigating of Punishments XXXVII What the Hebrews or Romans had respect to in Punishments may be referred to the places above mentioned XXXVIII Of war made for the exacting of Punishments XXXIX Whether war made for the punishment of injuries begun be just explained by distinction XL. Whether it be lawful for Kings or States to make war upon such as violate the Law of nature though they have committed nothing against them or their subjects and that jurisdiction is not necessary naturally to the exacting of Punishments XLI The Law of nature distinguished from civil customs largely taken XLII And from the voluntary Divine Law not yet known to all Nations XLIII As to the Law of nature that which is manifest is to be distinguisht from that which is not XLIV Whether a War may be made for sins committed against God only XLV Of some common notions of God which and how they are exprest in the Decalogue XLVI The first infringers of these Punishable XLVII But not others as is proved by the Hebrew Law XLVIII That War is not justly to be made upon any only for refusing to embrace Christian Religion XLIX War may justly be made against them that persecute Christians as such L. But not against such Christians as do misunderstand the meaning of the Divine Law illustrated by Authorities and examples LI. But may and that justly against those that are impious against such as they believe to be Gods I. The definition of punishments ABOVE when we began to assign the causes of War we considered mens deeds in a twofold respect either as the wrong they did might be repaired or as it might be punished Concerning the former we have sufficiently spoken we come now to the latter which is Punishments which we shall the more accurately discuss for as much as its Origine and nature being misunderstood hath given occasion to many errours Punishment in its general acceptation is malum passionis quod infligitur ob malum actionis the evil
perfecting of this work of repentance in him I answer That God haply might as probably have received as much dishonour in his recidivation or falling back to his accustomed wicked courses and so that of Seneca might very fitly be applyed Quod unum bonum tibi superest representabimus Lib. 1. de Ira c. 16. c. 15. mortem that only good thing that thou art capable of we represent unto thee which is death And that also of the same Seneca Quo uno modo possunt desinant esse mali there being no way left for them to cease to sin but to cease to live whereunto we may add that which the same Author saith elswhere Talibus ingeniis vitae exitus remedium est optimumque est abire ei qui ad se nunquam reverturus est De Benef. l. 7. c. 10. death is to such the only remedy it being best for him to dye that lives without any hopes of being cured Let these therefore together with what we have said in the beginning of this work suffice for answer to those who hold that either all punishments or at least such as are capital are without any exceptions prohibited unto Christians the contrary whereunto we are taught by the Apostle who within the duty of a King includes the power of the Sword as being the Executioner of divine vengeance and in another place he tells us that we ought to pray that Kings may be made Christians and that as Kings they may protect the innocent which in this general corruption and depravity of mankind even since the times of the Gospel cannot be done unless by the death of some the impudence of others be repressed seeing that all the publick punishments that are every where inflicted upon the guilty are not as yet found sufficient to guard or protect the innocent Neither is it altogether impertinent to propose unto all Christian Magistrates the example of Sabacon King of Aegypt for their imitation a man highly famed for his Piety by whom all capital punishments were changed into some servile works that were profitable to the Common-wealth and that with good success Lib. 1. as Diodorus testifies Strabo relates the like of some Nations inhabiting about Mount Caucasus where saith he They put no man to death although they offend never so highly yea and among the Romans no Citizen was ever known to be put to death or punished with stripes after the Porcian Law was made unless for Treason or being first condemned by the people of Rome Neither is that of Quintilian to be slighted No man will doubt saith he but that if a Malefactor could be reclaimed and become a new man as some such there may sometimes be it were better for the Common-wealth that he should live than dye It is observed by Balsamon That those Roman-Laws which condemned men to death were most of them changed by the Christian Emperours into some smart punishment whereby both the condemned Party was more sharply urged to repentance and others more affrighted by their lasting punishment Nicetas records it See Chap. 24. Sect. 2. That during the Reign of Johannes Comnenus no Malefactor was at any time put to death And when some ranting Donatists had killed two Catholick Priests most barbarously putting out the eyes and cutting off the fingers of one of them Grat. l. 23. q. 5. Circumcelliones St Augustine besought Count Marcellinus not to punish them by that strict Rule of retaliation whereby they should suffer according to what they had done but that he would suffer them to live and to enjoy their limbs yet to restrain them from the like outrages by some hard yet profitable labour or to reclaim them from their madness by some smarting punishment For this also saith he is called a condemnation And who understands not this to be as well a benefit as a punishment whereby neither are the Reins let loose to licentious cruelty nor that wholesome Physick withheld that should work Malefactors to repentance An House of correction strikes more terrour to an idle Rogue than the Gallows and to be chained to an Oar than Death it self XIII The imperfect Divisions of punishments rejected By that Division which we have made of the ends for which punishments were ordained it seems that somewhat was omitted by the Philosopher Taurus out of whom Gellius saith thus Whensoever there shall appear in a Malefactor great hopes of reformation without punishment or no hopes at all of his amendment or that there is no necessary cause to fear the dignity of the Person against whom the offence is committed should be slighted or contemned or that the sin is not such as requires the impression of some necessary fear to preserve others from it then wherein soever it is that men offend it is not worth our study to inflict punishments For he seems thence to infer That punishments are needless if any one of these ends be wanting whereas on the contrary all these ends must cease that there be no need of punishments Besides he omits this end namely When an incorrigible Sinner 〈◊〉 taken away to the end that he may not commit more or greater sins And what he there said concerning the loss of the dignity of the person against whom the sin is committed was to be extended to other damages which we may have just occasion to fear De Clem. lib. 1. c. 21. Much better is that Partition which Seneca makes In revenging injuries saith he the Law looks at three things which every Magistrate ought likewise to pursue namely That either he whom we punish should amend his life Three ends of punishing or that by his punishment others should be meliorated or that incorrigible Malefactors being taken away they that are innocent should live more securely In Legatione The two former of these Philo commemorates Punishment oftimes corrects and amends a Malefactor but if this fail it doth certainly meliorate those that come to the knowledg thereof For many men are instructed by other mens harms and grow more watchful over themselves by fear of the like sufferings But in that Division of Seneca if by those that are innocent we understand as well those who may hereafter be injured as those who have already been injured we have a full and perfect Partition especially if to those two words taken away we adde or suppressed For both exile imprisonment and whatsoever else it is whereby a man is disabled to do wrong may be hither referred But that distribution which Seneca elsewhere makes is more imperfect where he saith That in punishments this Rule is to be observed That some are inflicted to reclaim those that are wicked others to take them away And yet that of Quintilian is yet more imperfect That every punishment appertains not so much to the sin as for example XIV Not lawful for private Christians to inflict capital punishments though by the Law of Nations they may From what hath
are about words only which a Philosopher should principally avoid For as he that wrote to Herennius truly notes Vitiosum est Controversiam intendere propter nominum mutationem Lib. 2. To heighten Controversies about the change of names is vitious And as St Augustine argues against the Academicks Turpe est disputationibus in verborum quaestione immorari cùm certamen nullum de rebus remanserit It is absurd to contest about words only when there remains no difference at all about things XXIV Yea and after the penal Law But the pardoning of offences after the penal Law is past seems to be more inconsistent with the integrity of a Prince because he that is the Authour of the Law is in some measure bound up by his own Laws which is true as the Law-maker is a Member of the City and as so only considered but not as he sustains the authority Vid. sup C. 4. Sect. 12. and is as it were the Body of the Commonwealth For as such he may take away even the whole Law for the nature of an humane Law is such that it depends upon the will of the Law-maker not in respect of its institution only but of its continuation Humane Laws alterable by him that made them But in case he do subvert or take away any Law without some probable reason or cause he sins against the Rule of Polity But as he may take away the whole Law so also may he take away the condemning power of the Law as to this or that person or to this or that particular Fact the same Law remaining in force as to others by the example of God himself who as Lactantius observes when he instituted Laws for men did not intend to deprive himself of the power of pardoning such as should offend against those Laws It is lawful for a Prince to revoke the sentence of death and to absolve a person though condemned to dye saith St Augustine whereof he adds this as the reason Quia non est subjectus Legibus qui habet in potestate Leges ferre Because he is not subject unto Laws in whose power it is to make Laws For the condition of a Magistrate is one and the condition of a Prince is another the Magistrate is corrupt if his Sentence be more remiss than the Law but to mitigate the rigour of a severe Law is sometimes the Glory of a Prince Seneca speaking in the Person of Nero saith Occidere contra Legem nemo potest Symmachus lib. 3. Ep. 63. servare nemo praeter me Kill contrary to Law no man can and save none can besides my self But this also must be understood so that it ought not to be done without probable cause but what these probable causes are though it cannot be particularly defined yet must we grant that they ought to be greater after the Law is past than those that were looked at before because unto the other causes for which punishments are required there is superadded the authority of the Law which is fit should be maintained XXV Causes freeing from punishment 1. Intrinsick But the Causes exempting any man from the penalty of the Law are usually either intrinsecal or extrinsecal Intrinsecal as when the punishment compared with the Fact is severe if not unjust XXVI Or extrinsecal Extrinsecal When a mans former merits or some other thing commending the person offending pleads strongly for his pardon Or when we discern some extraordinary hopes of future good in the Delinquent but especially if the reason of the Law do at least particularly cease in that Fact for which the punishment is to be inflicted For although the general reason of a Law where it is not counterballanced with a contrary reason is sufficient to uphold the vigour of the Law yet the failing even of that which is the particular reason of the Law doth so far operate that the Law may more easily and with less detriment to Authority be dispensed with as Gratian proves by many instances C. 1. q. 7. And this usually falls out in such sins as are committed through ignorance though not altogether blameless or through infirmity of mind which haply might though not without much difficulty be overcome Whereunto a Christian Prince ought to have some regard in imitation of God himself who in the Jewish Law did mercifully provide that most sins of this nature should by some kind of Sacrifices be expiated as we may read in the fourth and fifth Chapters of Leviticus And as in the New Testament we may find confirmed both by words and examples wherein he declares how willing he is to pardon such sins to those that repent as Luke 23.34 Heb. 4.15 1 Tim. 1.13 And by those very words of Christ Father forgive them for they know not what they do By which words Theodosius the Emperour was so wrought upon that he freely forgave the Antiochians whom he had purposed to destroy as St Chrysostome records XXVII Yea though no such exemption be tacitely included in the Law Hence then we may discern the errour of Ferdinandus Vasquius who taught that the Laws were in no cases to be dispensed with but only to such wherein the Law-maker had he been consulted with would have confess'd That it was not his intent that in that Case his Law should be observed For Vasquius there doth not well distinguish between the equitable interpretation of the Law and the relaxation of it whence it is that in another place he reproves Thomas and Scotus for saying That the Law was binding though the reason of that Law did particularly cease as if they took the Law to consist in the bare letter which they never thought But every relaxation of the Law which may be and often is either granted or omitted freely at the pleasure of the Prince is so far from being referred to equity properly so called that even that relaxation which is due either out of charity or polity is not to be referred thither For it is one thing to take away the efficacy of the Law upon some probable cause or upon some urgent occasion and another thing to declare that that Fact was not at the Law-making so much as thought upon by the Maker of it But let this suffice concerning the taking away the punishments Now let us see what may be said concerning their infliction XXVIII All punishments are awarded according to mens merits By what hath been already said it appears That in punishments two things are considerable First The merit of the Crime secondly The profit that redounds by the punishment As to the former Nemo puniendus est ultra meritum No man ought to be punished beyond the merit of his offence for as I said before There ought to be an equality between the sin and the punishment according to that of Horace Epist 15. adsit Regula peccatis quae poenas irroget aequas Let sins have Rules which equal pains require And not plague
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
was well observed by Andronicus Rhodius And although it cannot exempt them altogether from punishment yet without doubt it renders the fault the more tolerable So the apprehension of some imminent danger quickly begets a fear and then we rashly adventure upon a sin to avoid that danger In like manner some sudden and unexpected injury sets our hot blood on boiling and then immediately before reason can interpose we attempt a revenge These are the sudden irruptions of passion and not the deliberate acts of the Will which certainly are in themselves more excusable than those which arising meerly out of the desire of pleasure assault us not so violently And therefore may either be deferred or admit of some other matter wherein to delight without injury to any De Providentia In Epist ad Gal. So St Chrysostome Lust saith he seeks coition only but not with this or that particular person And so †Nic. l. 7. c. 10. Aristotle Anger and cruelty are much more natural than covetousness or an inordinate desire of things unnecessary For this is generally to be observed That the more the judgment is hindered in its free choice or in the act of discerning between Good and Evil and the more natural the causes are exciting to sin the less of evil the sin hath and consequently the less it should have of punishment Difficilium facilis est venia The greater difficulty there is in the thing commanded the easier is the pardon if not performed Quantò potestas vitandi fuit tanto contumaciae crimine oneratur saith Tertullian The more power and the greater helps we have to avoid a sin the more contumacy we bewray in the committing it Aristotle likewise in the place before cited accounts that man less temperate who being either not at all or very weakly provoked with carnal desires either seeks after enormous pleasures or flies from some small inconveniences than he that is urged thereunto by some vehement passion For what would the same person do if he felt those vehement perturbations of mind which are incident to youth or that grief and vexation that poverty brings with it Pertinent whereunto is that of Antiphanes Qui cum sit opulens nequiter quicquam facit Hunc si esset pauper quid non facturum putas He that being opulent unjust will be What will he not if pincht by poverty And what we every where read in Comedians concerning the doting love of old men From these causes we ought to guess at the merits of mens sins and to fit their punishments accordingly XXXII Counter-passion rejected The Pythagoreans hold that justice requires 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. a sufferance in the like kind by way of punishment which is true but not so to be understood as if he that hurts another deliberately and without any just cause given should suffer just so much again and no more For the Law of Moses it self which is a perfect pattern for all other Laws rejects this exposition for it requires That he that steals any thing from another should restore four and fivefold and the Attick Law did require That a Thief besides a double restitution whereunto that of St John Rev. 18.6 refers should remain in bonds for certain days as Demosthenes testifies And when the Minyans had without any right Cont. Timocr extorted tribute from the Thebans Hercules compelled them to restore it unto them double as Apollodorus records it Aristides also of the Grecian Laws testifies Lib. 2. Leuctr 2. That the injured person is permitted to recover more than the damage sustained by way of revenge whereof St. Ambrose gives this reason Qâ—o furem à detrahendo aut poena deterreant aut mulcta revocent De offic 3. c. 3. that so they may affright the Thief from his pilfering by the punishment or discourage him by the mulct Seneca speaking of judgments to be inflicted after this life saith Scelera taxantur modo Majore nostra Our Crimes with greater plagues are there Punisht than those we suffer here Strabo observed a Law among the Indians Lib. 15. That if one man had maimed or dismembred another besides the common punishment of retaliation he was to lose his hand And in that book which is entitled Aristotle's Morals we read That it is just Lib. 1. c. 34. that he that willingly puts out another mans eye should suffer not only in the like kind but somewhat more For as Philo in his Special Laws observes It is not equal that the nocent and the innocent should suffer but alike And from hence it is that the very attempt to commit some sins though not consummated and consequently have less of evil in them than those that are perpetrated yet are equally punished according to what they intended as we may read Deut. 19.19 in the case of a false testimony so Deut 22.19 in the case of a Husband accusing his Wife of whoredom to defraud her of her dowry the like we may read Exod. 22.9 As also among the Roman Laws it was provided That he that carried a weapon about him with an intent to kill a man was to have been punished as though he had done it And if it be objected That if the bare attempt be punishable with death surely the execution should be more severely punished I answer that because nothing can be more grievous than death and because a man can dye but once therefore we must necessarily aquiesce in this punishment because we can go no further unless we do sometimes add thereunto some kind of torments to make death it self the more terrible XXXIII In punishments regard is to be had to the person punished Punishments are not to be considered barely but with respect had to the quality of him that suffers them The same mulct or fine that is grievous to a poor man is no punishment at all to the rich and the Stocks or Pillory which by the viler sort of people are slighted are worse than death it self to the nobler The Roman Laws did often make use of this difference of persons and punishments and Bodine upon this consideration did frame a kind of harmoniacal proportion whereas notwithstanding indeed here is but a simple equality between the merit and the punishment such as is in numbers as also in all contracts between the things sold and the money although the same Merchandises are worth in some places more and in some less as also is money according to its either plenty or scarcity But we must acknowledge that oft-times among the Romans this was not done without too great a respect had to the persons and their qualities nothing appertaining to the fact which acception of persons Moses his Law did exceedingly abhor And this is as we have said the intrinsick valuation of a punishment XXXIV Charity mitigates Punishment But that which restrains us in punishing within those bounds which the Laws permit is the love of him who is punished
Samians after three ages Injuries done should not be revenged but on those that did them From all which we may conclude That the memory of injuries done us ought not to outlive the persons that did them neither will those arguments brought by Plutarch in defence of the revenge taken by God upon Posterity for the sins of their Ancestors serve to justify the like in men because there is not the same right between man and man as there is between God and man neither will it necessarily follow that because our Children do receive honours and rewards for the vertuous acts of their forefathers therefore they may be justly punished for their faults because such is the nature of a courtesie or benefit that it may be conferred upon any man without injury but the nature of a punishment is not so IX Whether a man may partake of the punishment tho' not of the crime Thus having shewed by what means a man may partake of the punishment by being made accessary to the sin of another now we intend to shew how a man may be involved in the punishment though he be no ways accessary to his sin And here to avoid mistake and that we may not confound things in their own nature distinct because they are alike in name we must walk cautiously as to some particulars X. That which comes directly distinguisht from that which comes by consequence As in the first place we must distinguish between that damage that is purposely and directly done and that which comes by consequence that I account a wrong directly done when that is taken away whereunto a man hath a peculiar right And that I call a wrong done by consequence when a man is deprived of that which otherwise he might have had that condition ceasing without which he could have no right or title An example whereof Vlpian gives us thus If by digging a Well in my own ground I cut off or intercept the spring that feeds my neighbours Well the damage he sustaineth is not occasioned directly by any illegal act of mine but by the lawful use of that wherein I had a proper and peculiar right as being mine own And in another place There is a great difference between the doing of an injury and the prohibiting a man to make the profit which he hath hitherto been permitted to make And it is very preposterous saith Paulus the Lawyer to account our selves rich before we have acquired those riches As when a Father runneth into a praemunire by doing that for which his estate is justly confiscate his Children may feel the loss 't is true but the loss is not properly their punishment because the goods could not properly be accounted theirs unless they had continued to have been their Fathers to the hour of his death which was well observed by Alphenus when he said The Children indeed do suffer through the default of their Father but that they do not inherit that which should otherwise have descended unto them is not properly the Childrens punishment but their Parents But those goods which accrew unto them not from their Parents but either from nature custom or education do notwithstanding their Fathers fault remain perfectly theirs Cicero writes that Themistocles his Children suffered want nor did he think it unjust that Lepidus his Children should do the like and this he affirms to be an ancient custom and observed in all Cities which notwithstanding the later Roman Laws have somewhat moderated So when through the default of the major part which as we have said before represents and hath the power of the whole the whole offends and upon that account loseth their civil liberty i. e. their Walls Ports and other Commodities those particular persons who were innocent do indeed bear an equal share in the loss but yet in those things only which appertained not unto them but as they were a part of the whole XI What befals us by the occasion of a crime distinguisht from that which befals us because of the crime Besides it is to be noted that sometimes some evil is to be imposed on a man or some good taken from him by the occasion of anothers sin yet so that that sin is not the immediate cause of that action as to the very Right of doing it as he that passeth his word for the debt of another suffers not by reason of the debt but by reason of his ingagement according to our Proverb A Surety is a sure tye For as he that passeth his word for a buyer is not bound by the purchase but by his own free promise So he that undertakes for a delinquent may suffer Sponde noxa praesto est not for his delinquency but by reason of his vadimony or susception which as it was in his own free power to do or not to do so being done it shall no less oblige him than the offence did the delinquent Now the ground of this is the power and freedom that every man hath to oblige himself and therefore the measure of his sufferings is not to be taken from the hainousness of anothers fault but from the power he hath to oblige himself The consequence whereof is That no man can justly be put to death by being a surety for another whose crime may happily deserve death because no man can justly oblige himself beyond what is in his power but this power over a mans life either to take it away from himself or to oblige another to take it away from him no man hath and therefore no man can justly be put to death by reason of such a vademony And this I hold to be the truer opinion though it seems that not the ancient Romans only but the Grecians and Hebrews also were of another mind who believed that even the sureties also might justly be adjudged to death as appears by that ancient story of Damon and Pythias And by those words of Reuben to his Father Jacob Jos Ant. lib. 2. cap. 3. Slay my two sons if I bring him not back unto thee * Gen. 42.37 whereunto St Augustine †Ep. 54. ad Macedonium See lib. 3. c. 4. §. 14. alludes where he saith That he that is the cause of anothers death is sometimes a greater sinner than he that kills him As when a malefactor leaves his surety to suffer that lawful punishment which himself should undergo as it falls out frequently with hostages as we shall shew anon Neither doth this power of obliging a mans self extend to mutilation for no man hath such a power over his bodily members as to cut them off unless it be for the conservation of the whole body But whatsoever any man hath a full and absolute power over he may engage for another and if he suffer thereby it is not by way of punishment but by way of equity which requires that what is promised should be performed Thus a man may forfeit his estate his liberty his goods
not into the world to invade another mans Glory but to communicate his own not to usurp an earthly Kingdom but to confer an heavenly St Paul tells Timothy That a Bishop should be no striker 1 Tim. 3.2 Nor rule by constraint or compulsion for to dâ—ive by force better becomes a King than a Bishop Princes may exercise their Power in punishing Offenders to deter them from doing evil De Sacerd. l. 2. But what we do saith Chrysostome must be not by coercion but by perswasion whereunto he adds this Reason For God crowns not our forced but our voluntary or as St Paul speaks our reasonable service Ad Eph. 1.4 So in another place It is our duty to instruct perswade exhort and reprove but not to command or to compel Consiliariorum locum obtinemus We serve as Councellors to advice and to give our Opinions but still we leave our Auditors to their free choice whether they will act accordingly or no We have no such power given us as to restrain men from sinning by severe punishments Whence it is evident that Bishops as such have no Right of Domination over men In Epitaphio Nepotiani as Kings and Princes have St Hierome distinguishing between a King and a Bishop concludes That the Power of a Bishop is much inferiour to that of a King for a King may enforce to an unwilling obedience but a Bishop hath no power but over such as are willing to obey him Episcopus docet ne Judex inveniat quod puniat The Bishop instructs and admonisheth that the Magistrate may find no cause to punish It was well said of Frederick the Emperour concerning the Pope Ecclesiam regat ille suam divinaque jura Temperet Imperium nobis fascesque relinquat Let him his own Church rule by Laws Divine But let the Sword and Scepter still be mine And when Suenno King of Denmark stood Excommunicate William Bishop of Rosâ—hil in opposing himself against him at his entrance into the Church with his pastoral staff and exposing his breast naked to the officers of the King who offered to draw upon him did therein perform the office of a good Bishop The like did St Ambrose to the Emperour Valentinus as we have declared above Bo. 1. ch 4. §. 5. but whether it be lawful for Kings themselves to make War upon such as have rejected Christianity by way of punishment we have already elsewhere discourst in the Chapter of Punishments as far as sufficeth to our purpose XV. The pretence of fulfilling of prophecies no cause of War And hereof also I shall give my advice and that not in vain but because I foresee by comparing these modern times with those long since past much mischiefs likely to ensue unless in time carefully prevented that the hopes we conceive that some things are due unto us by our own interpretation of some Divine Prophecies can be no cause of a just War Zozimus records it of Nicomedes the Son of Prusias that mis-appling a Prophecy of one of the Sibyls by the perswasion of Attalus made War against his own Father the like he and Ammianus relates of one Theodorus so doth Procopius of John of Cappadocia In the time of the Emperour Gratian. For besides that those Prophecies which are not fulfilled cannot certainly be understood without a Prophetick Spirit the very time of the accomplishment of such as are certain may be hidden from us And lastly the bare prediction unless it be backed with an express command from God gives no right to any man sâ—eing that God permits such things as he predicts to be sometimes brought to pass by wicked men and by wicked actions For the Books of the Prophets are shut and sealed up until a certain time so that they cannot be understood Dan. 12.4.8.9 The Vision that the Prophet Habbakkuk saw concerning the judgments to fall on the Chaldaeans was not immediately to be inflicted on them But it was to be fulfilled in its appointed time In the end whereof saith that vision it shall speak and not lye though it do tarry yet was the Prophet to wait for it for it shall surely come to pass and not stay Hab. 2.3 Time then is the best interpreter of Prophecies St Jerome upon that place of Daniel before-recited writes thus If the Prophet did hear and not understand what will they do who presuming on their own understanding have published this Book which is sealed up and until the time come for its accomplishment So Procopius concerning the Oracles of the Sibyls Which saith he I believe are beyond all humane power to unfold until the time come when they shall be fulfilled Let Divines therefore take heed how they undertake to unriddle Prophecies and let Politicians beware how they give credit to over-arrogating Divines though the things predicted were certainly to come to pass yet are the times and means when and whereby they are to be accomplished very uncertain and therefore it is no dishonour to profess our ignorance of them Eorum quae scire nec datur nec fas est docta est ignorantia scientiae appetus insaniae species Some kind of madness it is to desire to know those things which are therefore screened from us that we should not know them The secret things belong unto God but the things revealed unto us Deut. 29.29 XVI Nor a debt not strictly due but some other way Thus also is it to be observed that in case any thing be owing to a man not strictly out of justice but arising from some other vertue as from liberality favour mercy love or the like as it cannot be recovered by any course of Law so neither can it be required by War For to either of these it sufficeth not that what is required is for some moral reason to be done But besides that it is necessary that there should be in us some kind of Right unto that such a kind of Right as the Laws both Divine and Humane do sometimes give even unto such things as are due by other vertues which when it happens then it becomes a debt after a new way which now appertains to justice But this being wanting the War that is made for this cause is unjust as was that War made by the Romans against the King of Cyprus or ingratitude For he that doth a courtesie to another hath no Right to exact thanks otherwise it were not a courtesie but a contract or debt XVII Though the War be just yet the manner of prosecuting it may make it unjust It is also to be observed that though there be a just cause of War yet may this just cause be spoiled by the access of some vice that cleaves to the action from the mind of the Agent either that something else not by it self unlawful doth more efficaciously move us to the War than the Right it self as when we have a greater prospect unto Glory or when some kind of profit either publick or
private is expected to arise from the very War being considered a part from the cause that justifies it which vice is most dangerous because it comes mantled with the Robe of Vertue But as St. Augustine rightly adviseth Satius est cujuslibet inertiae poenas luere quam istorum armorum gloriam quaerere Better it is to suffer the punishments of any cowardice then to seek glory by such a War This was it that sullied all the Victories of Alexander and for which all Historians declaimed against him as a Robber because he made War only for Ambition and to that end disquieted the whole World vexing all Nations without any cause given and making War upon those whom he never knew for what could this be but as St. Augustine calls it Grande Latrocinium A great Robbery Or a just cause may be spoiled when accompanied with a passion manifestly unlawful as when we rejoice in the destruction of our Enemies barely as such without respect to any thing that is good So Aristides was of opinion that the Phocenses were deservedly destroyed but withall he condemned King Philip for destroying them because he did it not upon the score of Religion as he pretended but out of an Ambitious desire to enlarge his Empire Salust ascribes all Wars to this one and that very ancient cause namely a vehement thirst after Dominion and Riches And it was Tacitus his observation That Gold and Wealth were ever the principal causes of making War which Seneca attributes to Covetousness and Revenge Mad anger and a greedy thirst for gain The League have broke Whereunto we may add that of St. Augustine An earnest desire to make what spoil we can the cruelty of Revenge an unquiet and implacable Spirit Contumacy and Rebellion together with an ambitious thirst after Empire and Riches these and the like are deservedly blamed in all Wars But yet these where a justifying cause is not wanting though they favour rankly of a corrupt mind yet do they not render the War properly unjust and therefore restitution cannot justly be required of damages sustained in such a War CHAP. XXIII Of the Causes of War that are doubtful I. Whence doubts arise in moral matters II. That we ought to do nothing contrary to the dictates of our own judgment though erroneous III. That the judgment is sometimes swayed by arguments drawn from the thing it self IV. Sometimes by the Authority of others V. If on either side doubts do equally arise and the matter be weighty and one must be chosen then we are to chuse the safest VI. Whence it follows that in such a case we are not to engage in War VII Which may be avoided either by a Treaty VIII Or by Arbitration where also is handled the duty of Christian Princes in mediating between the parties engaged in War IX Or by lot X. Whether single Combats may be admitted to prevent a publick War XI That the present occupant hath some advantage where the case is equally doubtful XII Where the case is equally doubtful on both sides and neither party be in possession the matter contended for may be divided XIII Whether a War may be on both sides just explained by many distinctions I. Causes of doubts whence IT is true what Aristotle in the first of his Morals teacheth That there cannot be the same certainty in Ethicks as in Mathematicks which therefore happens because the Mathematicks abstract forms from all matter and because the very forms themselves are such for the most part as will admit of no mean As between streight and crooked there is nothing intervenient But in Morals the least circumstance varies the matter and the forms concerning which we treat have usually something interjacent and of that latitude that they sometimes approach nearer to this extreme and sometimes nearer to that As between things absolutely commanded and things absolutely interdicted there are some things that may or may not be done so between things exactly just and things absolutely unjust there are some things intermediate whereof some encline nearer to this extreme and some to that From whence doth often arise some doubt and ambiguity to whether of the two extremes they approach nearest as we may perceive in the degrees of heat and cold in water when it is tepid and in the degrees of light and darkness health and sickness c. Insomuch that as Aristotle saith The judgment hath sometimes an hard task to determine which is to be preferred before the other But Andronicus Rhodius goes yet farther affirming That it is a very difficult thing sometimes to distinguish between Realities and Resemblances things exactly just and things that are only apparently so II. Nothing to be done against our judgment But this Rule is in the first place to be constantly observed That though an Act be really Just yet if upon a serious examination we shall judge it to be unjust to us if we do it it is so And this is that which St Paul intends when he saith Whatsoever is not of faith is sin In which place Faith signifies the firm perswasion or judgment of the mind concerning a thing Rom. 14.23 as may easily be collected from those other expressions of St Paul in the same Chapter Let every man be ful y perswaded in his own mind Bâ—â—ssed is the man that condemneth not himself in that which he alloweth Peccatum est qâ—od aliter fit quam probatum est Whatsoever any man doth saith St Ambrose Ambrose otherwise than what his own conscience approveth is sin For that a thing be well done saith Plutarch Plut. Timoleonte it is requisite not onâ—y that what is done be just and honest but that there be a firm and constant perswasion of mind in him that doth it that what is done is therefore done because his conscience tells him that it ought to be so done For God hath endued the rational soul with a discerning faculty to the end that it may guide us in all our actions which being slighted the mind immediately becomes sensual and brutish But yet it sometimes falls out that the judgment wavereth and gives but a dim and uncertain light which if upon a mature disquisition we cannot clear then we should take the advice of Cicero De Off. lib. 1. and forbear to act whilst we remain doubtfull whether it be just or unjust The like advice Pliny gives Wherein thou doubtest forbear The Hebrew Doctors also give this caution Beware and forbear in matters that are dubious But this is then only seasonable where we have a free choice either to do or not to do but not where we are obliged to do either this or that and yet are unsatisfied in either whether it be just or not for there we are to chuse that which in our judgment seems to be less evil Semper enim ubi electio evadi non potest minus malum rationem induit boni For alwayes when the will is straitned between two
of the Law do not observe it although haply that Law be promulgated and time of it self sufficient allowed for the knowledge thereof As also in such as go to Law both Parties may be free not from injustice only Nemo debet jus suum indiscussum relinquere Tentanda sunt quaecunque tantum sunt Baldus but from any thing else that is blameable especially when both or either of them contend not in the behalf of themselves but of others as a Tutor for his Pupil a Guardian for his Ward whose Right he is bound in duty to defend though that Right be but uncertain So in a wager at Law two persons may contend for one and the same thing and yet neither of them be unjust So also a Councellor may plead for either of them without the least derogation to his honesty Again when something that is very profitable stands in opposition to what is honest it is no easie matter to tell whether of them to follow When we first entred into War with Niger saith Severus the Emperour there was I confess no very plausible pretence for War but the Empire lay at stake between us and both of us strove which should appropriate it to himself Herodian Nay as Aristotle well notes to say of a Judge that he judgeth right is but an Ambiguous speech for it may signifie either that he judgeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plainly as he ought without any ignorance or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to the best of his knowledge or the clearest evidence that is brought before him And therefore the sentence which must pass according to that evidence may be through mis-information unjust and yet the Judge that passeth that sentence may be righteous * Si dubium sit à qua parte stet justitia hanc si utraque pars quaerit injusta esse neutra possit If it be doubtful on what side the Right stands if both Parties contend for it it is probable that neither doth unjustly The Jews made War against the Canaanites justly being so commanded by God and the Canaanites being ignorant of that charge given against them did justly in defending themselves wherefore that War was on both sides just Thus Pope Pius the second answered the Hungarian Embassador that complained against the Emperour namely He thought that the King of Hungary did intend nothing dishonestly and he knew that the Emperour was a great lover of justice But both contending for the Kingdom probable it was that neither of them thought his Cause unjust In disceptationibus fori par est litigantis utriusque jus donec lata est pro altero eorum sententia In all controversies this is found true but especially in War that both Parties pretend to maintain a Cause that is just But in War it is hardly possible that either party should be in that sense just that is free from all blame by reason of that great defect of love and that overmuch rashness that for the most part inseparably accompanies it besides the weightiness of the business it self which is such as being not satisfied with probabilities strictly requires such proofs as are demonstrative and convincing But if we account that to be just which is permitted to enjoy some effects of Right it is most certain According to the effects of right War may be on both sides just that War in this sense may be on both sides just as will appear anon when we come to treat of a publick solemn War for so both a sentence though not rightly past and a possession not rightly gained have both of them some effects of that which is right CHAP. XXIV War though Just not to be undertaken rashly I. It it better sometimes to remit our own Right than to engage in a doubtfull War II. But especially when undertaken to exact punishment III. And chiefly by a King that is injured IV. And that sometimes for his own and his Subjects safety V. Certain Rules guiding us to a prudent choice of things apparently good VI. An example whereby we may be guided in our endeavours after liberty or peace whereby the miseries of War may be prevented VII Punishment not to be exacted by War unless by the most potent party VIII War not to be undertaken unless compelled by necessity IX Or when we have some very great Cause together with some notable advantage X. The miseries of War lively described I. Better sometimes to forego our right than to make War for it THough it be not properly pertinent to our purpose in treating only of the Rights of War to shew how far other Virtues do either enjoyn or perswade thereunto yet will it not be altogether impertinent for preventing of mistakes to give some cautions about it lest any man should think that whensoever he hath a Just Cause offered him he is bound to make War or at least that it is at all times lawfull for him so to do whereas on the contrary it is for the most part much more pious to remit somewhat of our Right than to endeavour to defend it by a dangerous War We Christians are especially taught to expose our own lives to the greatest perils that can be to preserve the lives and as much as in us lies to procure the everlasting welfare of others in imitation of our great Lord and Master who laid down his own life to save ours even then when we were strangers nay enemies unto him Rom. 5.6 How much more reason have we to forbear the prosecution of our Just Rights when they cannot be obtained without the effusion of so much Christian blood and the destruction of so many mens Lives and Estates Pol. lib. 4. Rhet. ad Alex. c. 3. besides other mischiefs which War usually brings with it This we are forewarn'd of by Aristotle and also by Polybius not for every such cause to run the hazard of a War For the necessary defence of our Liberties our Wives and Children we may lawfully make War saith Gallio in Seneca but not for such things as are either superfluous or being lost Suasoria 5. Philostratus lib. 23. do not much damnifie us This and somewhat more did Apollonius say to the King of Babylon We are not to contend with the Romans for a few small Villages which many of our Ancestors being but private men did enjoy They must be great matters indeed that should so far provoke us Adv. Apion de popul suis as to undertake a War especially with such potent enemies The like Josephus testifies of his Countrey men It is not our custom to muster up our Forces or to make War to enlarge our Dominions but for the defence of our Laws All other losses we can bear with patience but being debar'd the use of our Religion we undertake War beyond our strength and prosecute them to the utmost of dangers It was prudently advised by Dion Prusaeensis in his Oration concerning War and Peace We are
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
saith Servum nihil deliquisse qui Domino jubenti obtemperavit The Servant is not to blame whilst he doth but what his Lord commands him So in another place Velle non creditur qui obsequitur Imperio Patris vel Domini It is not believed to be his own act if he do it in obedience either to his Father or Master Mithridates freely dismiss'd the Servants of Attilius without any punishment at all though they were found guilty of the murder intended upon him Neither would he punish the Children of those that had rebelled against him because they were compelled to Rebellion by the Commands of others Themisthius in his Ninth Oration observes and that truly That Princes have always the resemblance of reason as Souldiers the like of anger The like is observed by Tacitus God hath allotted unto Princes the faculty of judgment but unto Subjects he hath left only the glory of obedience And as the same Tacitus relates Annal. l. 3. The Son of Piso was by Tiberius acquitted of the crime of sedition because what he did was by his Fathers command whom he durst not disobey Servus herilis Imperii non Censor est sed Minister De Controv. l. 3. c. 9. Cont. Faustum lib. 22. c. 74. The Servant is not to sit as Judge of his Masters Commands to dispute them but to obey them But in this case of War let us hear what St Augustine saith If a good man shall happen to war under a King though sacrilegious he may being commanded fight with a good conscience if observing the order of his Countries peace he be either assured that what he is commanded is not repugnant to the Law of God or doubtful whether it be or not so that haply as the iniquity of the command may render the King guilty so the necessity of obeying those commands for Orders sake may likewise render the Souldier innocent And again De Civit. Dei lib. 1. c. 26. If a Souldier under lawful Command shall in obedience thereunto kill a man by the Laws of his City he is free from murther nay unless he do it he shall be held as a Traitor to his own Country But if he shall do it of his own accord or without command he shall be guilty of murder That very Law that will punish him if he do it without command will likewise punish him if he do it not being commanded And from hence ariseth that so generally received opinion I mean as to Subjects That a War may be just on both sides that is in respect of them it may be on both sides void of injustice whereunto the Poet had respect when he said Quis justius induat Arma Scire nefas Who hath the juster Cause It 's hard to know Yet is not this opinion so generally received but that it meets with some difficulty For Pope Adrian defended the contrary which may be confirmed not by that Argument precisely which he urgeth but by this which seems to be more forcible namely That he that doubts contemplatively ought in his active judgment to chuse the safer part which is To abstain from War The Esseni The Esseni are highly commended for that amongst other things they bound themselves by Oath To hurt no man though they were commanded In imitation of whom the Pythagoreans did wholly abstain from War as being the Ringleader to destruction commanding murder as by a Law Neither will it much avail to say for the other opinion That it is dangerous to disobey For whilst both are uncertain for if the War be unjust it is no act of disobedience to avoid it he is not to be blamed that chuseth the safest But our disobedience in such things hath in its own nature less of evil than murther especially of so many Innocents It is storied by the Ancients That when Mercury being accused for killing of Argus excused himself for that he did it at the command of Jupiter the rest of the Gods notwithstanding durst not acquit him No more doth Martial Pothinus an Officer of Mark Antony's when he saith Antoni tamen est pejor quam Causa Pothini Hic facinus Domino praestitit ille sibi Worse than Pothinus 's Case is Antony 's This for himself that for his Lord doth dye Nor will that be of much greater moment which some men urge to the contrary namely That in case we admit that every private person may have liberty to judge of the justness of the War and accordingly either yield or deny their obedience the Commonwealth would soon be destroyed because for the most part it cannot be expedient for the State that the reasons of their counsels should be communicated to the Vulgar For although this may be true where the causes of the War are suasory only yet not where the War is justifiable for there the causes thereof should be published unto all that every man may judge of them and be satisfied in them What Tertullian sometimes said perhaps too confusedly ☞ of Laws in general may very appositely be said of these of War No Subject so faithfully observes a Law as he that knows the reason of that Law For every Law ought to give testimony of its own integrity to those from whom it requires obedience On the contrary Suspecta Lex est quae probari se non vult improba si non probata dominetur That Law that will not endure the tryal is held suspected as that which being disapproved yet exacts obedience is held as wicked Thus when Vlysses endeavoured to perswade Achilles to join with the Grecian Princes in a war against the Trojans Achilles urgeth them to declare the cause Papin What cause Greece hath so great a War to wage Declare whereby thou maist encrease our rage And hence it is that Theseus in the same Poet thus encourageth his Souldiers Go and fight boldly in a Cause so just For as Propertius well observ'd The justice of the Cause cannot but heighten the spirits and inflame the indignation of a Souldier whose courage droops so that he grows ashamed of his Arms when his Cause is nought Herod in his Oration to the Jews after the slaughter in Arabia thus bespeaks them Josephus I am willing to shew you how justly I have undertaken this War being provoked thereunto by the reproaches of our enemies which being known unto you must needs heighten your courage to a revenge It is very often verified what the Panegyrist observed So prevalent even amongst Armies is a good Conscience that the Victory seems properly to belong not to the numbers or valour of the men but to the justness and equity of the Cause And so some Learned Men have interpreted that of Gen. 14.14 as if Abraham had before the Fight instructed his Servants fully in the justice of his Quarrel And certainly the denunciation of War ought to be publick and the cause express'd that the whole Race of Mankind may judge of the equity
Hollanders then had with the Spaniards The like hath always been permitted by the French to any Nation that were at Peace with them and that so freely that oftentimes the Enemies have in other mens names transported their Goods without damage as appears by an Edict made 1543. Chapter the 42. and by another made 1584 wherein it is provided that their Friends might freely traffick whither they pleased so as it were with their own Ships Men and Goods and that those Goods were not Belli Instrumenta Arms nor Ammunition for War whereby their Enemies might be made stronger But in case they did so then it might be lawfull to seize them to their own use paying a valuable price for them Wherein two things are observable first That by these Laws Ammunition for War was not held as lawfull prize much less were other innocent Merchandizes obnoxious to this danger I cannot deny but that these Northern Nations have sometimes usurped anothers Right but not constantly being urged thereunto rather by present necessity then by a perpetual equity The English upon pretence of their War would not permit the Danes Freedom of Traffick whence arose that War between those two Nations whereby the English were compelled to pay a Tribute to the Danes which was called the Dane penny which though the Cause were changed yet the name of it continued till the Reign of William the Conquerour as Thuanus records it in the year 1589. Again we find it recorded as well by Rhâ—danus in his History of Holland in the year 1575 oâ— by Master Cambden in his History of Queen Elizabeth in the year following That that most Wise Queen sent her Embassadors Sr William Winter and Secretary Beale to Remonstrate That the English could not endure that the Hollanders in the heat of their War then with Spain should detain their Ships trading in the Spanish Ports And when the English and the Hollanders being both at War with Spain did disturb the Cities of Germany in their traffick with the Spaniards with what a disputable Right they did it appears by the eager dissertations of both Nations which are worthy our perusal for the deciding of this Controversie And it is observable that the English themselves do in their writings acknowledge no less whereas they principally insist upon these two Arguments to defend their Cause namely That the Germans did furnish the Spaniards with Instruments of War and secondly that it had been mutually agreed in Ancient Treaties between both Nations That it should not be lawfull for them so to do The like agreement we find afterwards made between the Hollanders and their Associates and the Lubeckers and theirs in the year 1593. That neither the one nor the other should permit the Subjects of their Enemies to traffick within their Dominions or should aid them with either Men Money Ships or Victuals And afterwards namely in the year 1617. It was agreed between the Kings of Denmark and Sweden That the Dane should obstruct all manner of Traffick with the City of Dantzick being then at Enmity with the Swedes and not only so but that they should not suffer any Merchandizes to pass through the Sound or the Baltick Sea to any of the Swedes Enemies for which the King of Denmark was to receive other Priviledges and advantages from the King of Sweden But these are particular Contracts from whence no general Rule can be inferred Neither did the Cities of Germany only blame the English for denying them freedom of Traffick with their Enemies But the Polanders also complained against them in the year 1597 as Cambden relates That the Law of Nations waâ— violated because they were molested in their Commerce with Spain because at that time the Spaniards had War with England But the French having made Peace with Spain being sollicited by Queen Elizabeth who was still at Enmity with the Spaniard that it might be lawfull for the English to search their Ships for Arms and Ammunition would not admit so much as this alledging that it was but a pretence for rapine and to disturb traffick So in the League that the English made with the Hollanders and their Associates it was agreed That other Nations whom it concern'd to give check to the swelling Power of the Spanish Monarchy should be sollicited to forbiâ— all Commerce with Spain which if they did not voluntarily then that they would permit their Ships to be searched that no Arms or Instruments for War might be thither imported but beyond this neither were the Goods or Ships detained nor any hurt done under that pretence to such as traffick'd peaceably Nay when in the same year several Hamburgers were taken laden mostly with Instruments of War those only were challenged by the English as prize but for the rest of the Commodities they paid the just value But the French when their Ships were seized and confiscate by the English because bound for Spain did declare unto Queen Elizabeth that they would not suffer it It is fit therefore as I have said That there should be Remonstrances and publick Declarations forbidding Traffick with our Enemies before we seize their Goods as Prize So Queen Elizabeth in favour to the King of France against the Spaniard and those of the Holy League See an example of a Declaration made by the English in Cambden about the years 1591. and 1598. sent out her Proclamation commanding that no man should carry Victuals or Provisions for War out of â—ngland into any of the Ports of France possest by the Leaguers or traffick with them uâ—on pain of High Treason And afterwards the War waxing hot it was publickly commanded upon the like pain That no man should carry Corn Munition or Provision for Shipping into Spain because he professed himself an Enemy to England and refused to confirm the Ancient League betwixt their predecessors Neither is it necessary that any Nation should be restrained from their freedom of Traffick by such Declarations but it is left to every Nations choice to do as their own occasions and advantages shall prompt them to there being nothing found in Histories Vid. Thuan. An. 1589. lib. 96. Cambd. An. 1589. 1595. that may probably infer any certain determination of this controversie amongst Nations wherefore such Declarations though published have been sometimes observed and sometimes not accordingly as it stood with the respective advantages of several Nations And for this Cause we refer the decision of this Question to the Law of Nature When the Hansetowns made sore complaints against Queen Elizabeth Cambd. An. 1595. upon Her taking of Sixty Hulks Trafficking to Spain then in open War with England as if their Ancient Priviledges had been broken She answered That she had forewarned them that they should not carry any provision for War to the Enemies of the Realm of England and that carrying them she had lawfully taken them and could do no other unless she would wilfully draw destruction upon her self and People That
that forbad it yet could he never attain unto that perfection of holiness that the Gospel seemed to commend unto us So for a believing Husband to put away his unbelieving Wife is lawful as St. Augustine affirms which with what circumstances is to be verified it is not to our purpose in this place to discuss but yet he may and that haply more laudably retain her Wherefore he adds Both are equally lawful according to the rules of Divine Justice for neither of them are prohibited by God but yet both are not equally expedient Vlpian concerning him that having sold his Wine and covenanted with the buyer that if he fetcht it not by such a day it should be lawful for him to pour it out saith That although he may do it yet if he do it not he is the more to be commended Secondly this word Lawful may be taken for that which is not punishable by humane Laws although it consist not with Piety or the rules of Morality thus in many Countries fornication is lawful that is not punishable Amongst the Lacedemonions and Aegyptians theft was lawful And in Quintilian we read That there are some things which though not in their own nature commendable yet that are by the Laws tolerated as by the Laws of the twelve Tables The body of the Debter might de divided among the Creditors all which though in themselves unfit and unseemly yet are by some Lawgivers permitted to avoid greater inconveniencies Licentia plerumque est tentatio Disciplinae Licence saith Tertullian is for the most part but the touchstone of Discipline All things saith S. Paul are lawful but all things edify not Now this acception of the word Lawful is somewhat improper as Cicero testifies in his Tusculans Lib. 5. where speaking of Cinna who had been four times Consul and had caused divers of the chiefest of the Roman Nobility to be slain saith thus Shall we esteem this man happy nay on the contrary I think him miserable not because he committed these things but because he so governed the Commonwealth that he might lawfully commit them not that it is lawful for any man to sin Sed sermonis errore labimur dum id licere dicimus quod cuique conceditur But we are misled through the common errour of speech whilst we pronounce that lawful which is only permitted Summum jus summa injuria Whence Columella concludes That we ought not to prosecute our revenge to the utmost of what we may for extreme severity is too near a Neighbour to extreme cruelty Yet notwithstanding though this acception of the word Lawful be not so proper yet is it among the Romans very frequent as will appear by the same Cicero who thus bespeaks the Judges Orat. pro Rabirio Posthumo Quid deceat vos non quantum liceat vobis spectare debetis Ye that are Judges ought to consider not so much what in strictness of Law ye may do but what in every case is most fit and convenient to be done for if you regard your own power only ye may put to death even whom you will In the same sense as it is usually said of Kings That they may do even what they please because they are exempted from the lash of humane Laws yet is that advice which Claudian gives unto his Prince much more worthily to be by all Princes received Nec tibi quid liceat sed quid fecisse decebit Occurrat Resolve to do Not what you may but what becometh you Musonius highly blames those Princes who study more their own Prerogatives Declam lib. 3. cap. 5. than the Good of their Subjects and that say thus and thus I can do rather than thus and thus I ought to do Hence it is that we find these two words Licet and Oportet it is lawfull and it behoves placed sometimes in opposition one to the other Lib. 30. As in Ammianus Marcellinus Sunt aliqua quae fieri non oportet etiam si licet Some things there are which are not fit to be done though lawfully we may do them So in Pliny's Epistles Things that are dishonest we must avoid not as they are unlawfull but as they are shamefull And as Cicero himself affirms the same Est enim aliquid quod non oporteat etiamsi licet Orat. pro Balbo Something 's are not fit to be done though lawfull And in his Oration for the defence of Milo he distinguisheth between fas and licet attributing to the former that which is agreeable to the Law of Nature and to the latter that which was agreeable to the Laws of particular Countries So Quintilian the Father in one of his Declamations tells us Orat. 251. That It is one thing to look strictly to what is a mans Right i. e. to what a man may do and another thing to respect that which is just Aliud est spectare jura aliud justitiam III. In War the effects are lawfull generally that is not punishable In this sense therefore it is lawfull for one Enemy to hurt another both in his Person or in his Estate It is lawfull I say not only for him that makes War upon a Just ground and that in the prosecution of that War contains himself within those bounds which by the Law of Nature are prescribed him as we have already said but for both parties and that without distinction So that he that doth thus injure his Enemy though he be apprehended in another Princes Dominion yet can he not be proceeded against as an Homicide or as a Thief neither can any other Prince for this only Cause make War upon him and in this sense is that of Salust true By the Law of Arms all things are lawfull to the Conquerour IV. Why such effects were introduced Now the Reason of this so great a licence granted by all Nations is this because when two Nations are at War for any other Nation to judge where the Right is had been dangerous for by that means that Nation may quickly be intangled in the others War as the Marseillians pleaded in the Cause of Caesar and Pompey And therefore they confest That they had neither Wisdom nor Power sufficient to determine whether of them had the Juster Cause Besides even where the War is manifestly Just it is a very nice thing by any outward token to judge which is the Just Rule or Measure either of defending our selves of recovering our own Right or of exacting punishments So that it is agreed that it is much better to leave it to the Honesty and Conscience of the Princes engaged to determine of these things among themselves than to refer it to the arbitrement of others Thus did the Achaians demand of the Roman Senate How it came to pass that what had formerly been acted by the Right of War should now fall into debate Now besides this of licence and impunity there is another effect of a Just and Solemn War namely
Dominion whereof we shall treat hereafter V. Testimonies of these effects But the licence that a Just War gives to one Enemy against another extends either to his person or his Estate And first to the person of an Enemy and hereof we have many testimonies recorded in the most approved Authors The Greek Proverb acquitteth the Souldier for what he doth against the person of an Enemy in the time of War in that it saith He guiltless is that doth his Enemy kill Euripides The custom of the ancient Grecians was not to wash nor to eat with an Homicide much less to joyn with him in any Duties that were holy and yet with him that in the War had killed an Enemy it was lawfull And in all Authors we read That to kill was Jus Belli the Right of War Marcellus in Livy justifies himself by this Right Livy 26. Id. 21. Lib. 28. Quicquid in hostibus feci jus belli defendit Whatever I did among mine Enemies the Law of Arms doth defend me in And so doth Alcon justifie himself and his Soldiers to the Saguntines Suffer your Wives and your Children to be dragged about and ravished before your faces according to the licence given in Wars for better it is with patience to endure those out-rages than that they should put you all to the sword And the same Livy having declared the general Massacre of the Astapenses adds That it was done by the Right of War Cicero likewise in his Oration for King Dejotarus pleads thus And why O Caesar should he be suspected as thine enemy who could not forget that whereas thou mightest have adjudged him even to death by the Law of Arms thou madest both him and his Sons also Kings And in another place he confesseth That whereas Caesar Pro M. Marcel by the Right of a Conquerour might have sentenced them all to death Lib. 7. he out of his Princely Clemency had preserved them Caesar in his Commentaries acquainted the State of the Hedui That he saved their people whom by the Law of Arms he might have slain Josephus also in his Jewish War accounts it an honourable death to dye in the War but he means to die by the Law of Arms or at the Will and Pleasure of the Conquerour Of the same mind was Papinius Non querimur caesos haec bellica jura vicesque Armorum Nor for our slain we grieved are This is the Law of Arms the chance of War Yet we must observe That when these Authors seem to justifie such acts of cruelty by the Right of War they do not altogether free them from sin but from being punishable as sins Annal. lib. 1. as will appear by other places in the same Authors It was well said of Tacitus In pace causas merita spectari ubi bellum ingruat innocentes ac noxios juxta cadere Peace doth usually distinguish of Causes and Merits and accordingly dispenseth rewards and punishments but in War the nocent and innocent do fall alike And in another place speaking of a Common Trooper who demanded of his Captains a Reward for killing his own Brother in the head of his Enemies Troops he saith Nec illis aut honorare eam caedem jus hominum nec ulcisci ratio belli permittebat Neither would the Laws of humanity suffer them to reward so unnatural a murther nor the Law of Arms permit them to punish it For that which Seneca observes is very true Troad See the second Book chap. 1. sect 1. Quodcunque libuit facere victori licet What e're he will that may a Victor do And what he notes in his Epistles Epist. 96. Quae commissa capite luerent tum quia paludati fuerunt laudamus What in another we punish with death that in a Souldier under command we commend wherewith accords that of St Cyprian Epist. 2. Homicidium cum admittunt singuli crimen est virtus vocatur cum publicè geritur That which in a time of peace is a capital crime in the time of War is accounted valour but it is not the nature of their fact but the exorbitancy of their cruelty that renders Souldiers unpunishable And a little after he adds Consensere jura peccatis coepit esse licitum quod publicum est The Laws do connive at sin which is therefore sometimes reputed innocence because licensed by publick authority And in this sense it is true what Lactantius saith of the Romans Institut 4. c. 9. Pharsal that they did Legitimè injurias inferre Infest others lawfully As that also of Lucan Jusque datum sceleri which we may translate in the words of David Wickedness is practised as by a Law VI. All that are found among enemies are liable to the effects of War But this Right of licence or impunity in War extends it self very far for it reacheth not only to such as are actually in Arms nor unto such only as are Subjects to these Princes against whom the War is made but unto all such as reside within their Territories or Dominions as may appear by that form so often used in Livy Hostis sit ille quique intra praesidia sunt ejus Let him and all that live under his protection be held as enemies Livy lib. 37. And no marvel seeing that by all such we may be damnified which in a War that is lasting and universal is sufficient to justifie the licence here spoken of otherwise than in Reprizals or Pignorations which as I have said was at the first introduced after the manner of Taxes for the payment of publick debts Wherefore it is not to be wondered at if as Baldus notes This licence in War be much greater than that in Pignorations Nor is there any question but that Strangers coming into the Enemies Territories after the War is proclaimed and began may be persecuted as Enemies VII Though they come before the War began But as for those that went thither before the War was proclaimed it is thought fit by the Law of Nations that they should have some time allowed them to depart thence with their Goods for so we read of the Corcyraeans That before they laid close siege to Epidamnum Liv. l. 25. Thucyd. lib. 1. they gave warning to all strangers to depart or to be held as Enemies VIII But natural Subjects every where unless protected by another Prince But such as are true and natural Subjects if we have respect only to their persons they may in all places whatsoever be persecuted because as we have already shewed when War is decreed and denounced it is declared to be against a Prince or Nation and the People thereof So the Romans in their Decree against King Philip did Will and Command that War should be proclaimed against him and the Macedonians under his Dominions Now he that is an Enemy may by the Law of Nations be every where persecuted according to that of Euripides Vbicunque prensum jura laedi hostem sinunt
other Prince or State that would live in peace to judge between them therefore they conclude it better to sit still and to esteem whatsoever should be done in that War to be just and so the Prisoners on either side taken in actual Armes to be lawfully taken But now against those Prisoners that have been by misfortune surprized through the suddain eruption of the War no such thing can be alledged for they have neither advised nor attempted any â—urt to us Nevertheless to weaken the power of the enemy because possible it is that they might be inticed to injure us it hath been thought not unjust to detain them during the War but the War being ended there can be nothing alledged why they should not be released and therefore it is generally consented unto by all Nations That such Prisoners when the Peace is made should be enlarged as being confest by both parties innocent But as to other Prisoners every man that usurps a Right over them is willing that he should be believed that he hath justly gained them unless by some preceding Agreements he be limited And for this Cause neither Captives nor any thing else taken in War is to be restored in Peace unless it be so exprest in the Articles of Peace because the Conquerour would be thought to have a just Title to them which to contradict were to renew the War and therefore Totilas in Procopius charges Pelagius who was sent unto him from the Romans that he should not mention the releasing of the Sicilian Captives urging that it was not equitable that the Romans should redeliver their Fellow-Souldiers to their old Masters Wherefore the Agreement brought by Quintilian in the behalf of the Thâ—bans is rather witty than solid namely That Prisoners it they can make their escape into their own Country the War being ended are to be reckoned as Freemen because what is gotten by force is no longer ours than we can keep it by force Concerning those that make their escapes after the Peace is concluded we have hitherto treated now in the time of War they are said to return by Postliminy to their former freedom who were free before they were taken Captives in the War but they are said to be received who before were not free as Servants and other things V. The War lasting when a Freeman may be said to return He that was a Free-man returns so by this Right in case he return to this purpose That he may follow the Fortune of that City whereunto he returns as Trophoninus delivers it because as the Servant that is to be made free ought first to be sui juris of and for himself that so his act may be voluntary so he that would be admitted as a Citizen after captivity must resolve to incorporate himself with that City and become one with it or as a Member of it Moreover Whether the Captive be retaken by force of Armes or whether he have made his escape by fraud it is all one as Florentinus observes and the Case is the same if he be freely dismiss'd by the Enemy But what if he be sold by way of Contract to another and that he thence escape into his own Country This Question is handled by Seneca in his Controversie concerning the Olynthians whom Parrhasius bought For when the Decree was past by the Athenians whereby it was ordained That the Olynthians should be free he made this doubt Whether by that Decree it was meant that they might be made free or that they were adjudged thereby to be free which latter opinion was the truest Thus Childubius in Procopius pleaded That being returned into his own Country he was by the Law thenceforth a free man VI. What Rights he may receive and what not But a Freeman being returned home doth not only recover his own freedom but all things else that were his in any Nation that is at peace whether they are things corporeal or incorporeal because though people that are at peace as they do not enquire into the justness of the War but take every thing that is done to the Captive to be just so when they see the Captive to be at liberty they dispute not the manner how but take it as granted that he was released justly whereby they shew themselves indifferent to both parties Wherefore he that by the Law of Arms is possest of a Captive hath not an absolute and indubitable Right unto all things that belong to him For it is possible that his right may surcease without or against his will that if the Prisoner can make his escape and return into his own Country for then just so as he loseth his right to the Man doth he lose his title to those Goods which were his But what if those Goods be alienated Whether shall he that derived his title to them from him who at that time was by the right of War the Owner of them be defended by the Law of Nations or shall the same thing so alienated be recovered Those Goods I mean that are extant among such people as stand Neuters in the War Here then we are to distinguish between such things as may return by Postliminy and such as are uncapable of this right the difference whereof we shall presently explain That the former may appear to be alienated during their Cause only and under this Condition That the person be still held in custody these latter simply and absolutely By things alienated I understand even those things that are given or received VII All Rights against him are restored As he that returns home hath a Right unto all things by the Law that were his before he was taken so are the Laws in force against him as fully as if he had never been under the power of the Enemy VIII Why they that yield themselves are not capable of 〈◊〉 Right But unto this Rule as it concerns such as are Freemen Paulus allows of this exception Postliminio carent qui Armis victi hostibus se dederant They that being conquered by Arms had yielded themselves up to the will of their enemies have no benefit by their return home The reason whereof is Because all agreements with enemies are by the Law of Nations to be observed as we shall shew anon Neither is this Right of Postliminy to be admitted against those agreements and therefore those Romans in Gellius Lib. 7. 〈…〉 who being taken by the Carthaginians and sent back to Rome to procure exchanges did acknowledge That the Right of Postliminy was not due unto them because they were bound by Oath to return From whâ—nce also it is rightly observed by Paulus That during the time of a truce there is no Right claimed by Postliminy yet Modestinus is of opinion That if they that delivered themselves up to their enemies were bound by no Covenant or Promise made they might be admitted to their freedom by Postliminy IX How a people may obtain this Right That which hath been
Zeldi as Arrianus testifies Because they were enforced to take part against him with the Barbarians And Diodorus brings in Nicolaus the Syracusian thus pleading for the Captives They that are Confederates with our Enemies are by force driven to make War upon us therefore as it is but just that they that studiously and industriously make War against us be severely punished so to pardon those who unwillingly offend us is alike conscientious So Antigonus alledged Lib. 38. That he made War indeed against Cleomenes but not against the Spartans as Justine reports it IV. Nor for an intermediate fault between fraud and misfortune This also is to be observed That between a plain and manifest injury and an injury done by a mere mischance there intercedes sometimes something of a middle nature as if participating somewhat of either so as the action is neither merely or altogether voluntary nor yet done merely through ignorance or against our will Aristotle calls these acts 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 slips or failings as the Latines do trespasses or offences Of actions saith he that are spontaneous some are done deliberately others rashly Mor. l. 5. c. 10. and without consideration Now whereas in humane Society injuries may be done three several ways those done merely through ignorance are called mischances as when a mischief lights upon a man against whom no hurt was ever intended as for example if a Son by forcing open a Door should accidentally wound his own Father whom he could not suspect to be behind or if a greater hurt or damage befal a man than what was intended as if a Fencer for the tryal of skill and only intending to draw bloud should kill his Adversary it might be called a mischance but not a mischief For whatsoever happens besides what a man proposeth to himself is to be attributed to misfortune for haply vellicare voluit non vulnerare He intended to beat him not to wound him or if he did intend to wound yet haply not this man but another or it may be not in that manner or in so great a measure as it fell out if therefore any such hurt or damage do arise besides what was intended or might probably be expected it shall be esteemed as a mischance not a mischief But secondly If the wrong done might have been foreseen and prevented though it were not done improbo animo with a wicked intention it shall be accounted as a fault 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Aristotle terms it for culpae affinis est qui in se habet agendi principium qui vero extra infoelix He must needs be accessary to the sin or fault committed that acts by a principle within him but he that is passive and over-ruled by something without him is unhappy But when a man doth what he doth knowingly though not deliberately it is confest that an injury is done as he that in a Forest shoots at a Deer but kills a man whom he saw not is unfortunate but he that discharges a Musquet in a populous Street though with no mischievous intention yet if he kill a man he sins because he did it freely and voluntarily though not considerately As also they that through anger or any other perturbation of the mind either natural or necessary shall hurt a man cannot be faultless and yet we cannot account them wicked or malicious But yet if a man should knowingly and premeditatedly do the same thing he may justly be accounted wicked Wherefore whatsoever is done through anger suddenly may very well be said to be unadvisedly done Non incipit is qui ex ira quid facit sed is qui â—â—am provocavit Arist for it is not he that doth the wrong through anger that begins the fray but he that first provokes that anger Hence it is that before judgment in such Cases can be given the Query is not so much after the fact as after the occasion namely Who gave it and how great the provocation was For anger usually ariseth from hence when a man thinks himself to be injured and therefore in such differences as do arise about wrongs done through anger the Question is not as in ordinary Contracts An hoc factum sit Whether done or not for therein unless excused by forgetfulness one of the Parties must of necessity be unjust as namely He that fulfils not the Contract But the Question should be Whether the wrong done were justly done considering the provocation For he that first gave the occasion did it knowingly it is no marvel then if the one Party may think himself to be injured and the other not it may notwithstanding so happen That he that through anger doth the wrong may be unjust if namely the revenge swell higher than the provocation or the wrong we do bear not a just proportion with what we before suffered For justus est qui deliberatò justè agit He is a just man who knowingly and deliberately doth justly for possible it is that a man may do justly knowingly but not deliberately Moreover of such wrongs as are spontaneous some deserve pardons others not Those injuries are pardonable which are done not only by such as know not but that they may lawfully do them But these also that are done through ignoranee that is when their ignorance is the cause of the offence But if injuries be committed by ignorant persons but not through their ignorance but with such an affection of mind as exceeds the common bounds of humanity such Offenders deserve no pardon Thus far Aristotle whose very words because the matter is of great use I have therefore saith Grotius intirely turned into Latine because usually being but ill translated they are not easily understood Quod sponte non fit omne dignum venia Whatsoever is unwillingly done saith Dionysius Halicarnassensis is pardonable So likewise Procopius They who have wronged others if through ignorance that is when their ignorance is the cause of the wrong ought in equity to be forgiven by those whom they have wronged Nic. 7.2 Michael Ephesius interpreting that place of Aristotle where he speaks of an injury that may be done beyond the expectation of him that did it places that which I have before-recited as an instance in a Son who forcing open a Door wounds his own Father And of that which might have been foreseen he puts that of a man that without any malice shoots an Arrow at random in an High-Way and of that done by necessity he instanceth in him who being opprest with hunger or famine is constrained to be injurious to others to preserve himself an example of faults committed out of natural perturbations he puts in love grief fear That is said to be done through ignorance when the fact is unknown as when Abimilech would have taken Sarah not knowing that She was Abraham's Wife An injury is said to be done by a person ignorant but not through ignorance where the Law is unknown And this very
Souldiers to satiate their anger with the bloud of the Conquered VII Even Enemies deserving death may be sometimes pardoned Yea though in strictness of justice they have deserved death yet oft-times it is more agreeable to the Goodness Modesty and Magnanimity of a Conquerour to forgive than to revenge Of this mind was King Theuderick in Cassiodore Those Wars have always succeeded well to me saith he which have ended moderately for he can never want the victory that knows how to use it with temperance and clemency Salust ascribes the prosperity of the Romans and the greatness of their Empire â—ib 2. c. 41. to nothing more than to their promptness to forgive And it was the advice of Tacitus Quanta pervicacia in hostem Annal. l. 12. tanta benificentia adversus supplices To shew as much love and kindness to poor suppliants as courage and resolution towards Enemies Yea and Seneca tells us That the most generous of Beasts did disdain to tear and prey upon things vile and abject Elephants and Lyons scorn things that are prostrate and pass by what they have overcome Lib. 4. The Author to Herennius hath an excellent saying to this purpose Our Ancestors saith he did very wisely observe this custome never to put any King to death whom they had taken in War but why because saith he it would seem unreasonable to use that power which fortune hath now given us to destroy them whom the same fortune not long before had so eminently favoured And why should I now punish them because they have led their Armies against me This having now got the victory I am willing to forget Quia viri fortis est qui de victoria contendant eos fortes putare qui victi sunt eos homines judicare ut possit Bellum fortitudo minuere Pacem humanitatis augere Because it is the part of a valiant Commander to esteem men as Enemies whilst they are able to contend for victory but being overcome then to pity them as men that so valour may end the War and humanity confirm the Peace But you will haply say what if he had overcome you would he have done so wherefore then should you spare him I answer Quia talem stultitiam contemnere non imitari consuevi Because it is my custome to contemn and not to imitate such folly Now if this Author did mean this of the Romans which is very uncertain because he intermixes many strange and indeed Romantick stories with some true ones it manifestly contradicts that which we read in the Panegyrick of Constantine the Son of Constantius He acts the part of a prudent man who having conquered Rebels can bind them to himself by a free pardon but he of a valiant man who having vext them can trample upon them Thou hast revived O Emperour that ancient confidence of the Roman Empire who triumphed in the death of those great Commanders whom they had taken in the War for in those days their Captive Kings after they had graced their triumphs by attending the Conquerours Chariot from the Ports to the most publick place of the City as soon as he turned his Chariot towards the Capitol were hurried away to Execution Only Perseus upon the intercession of Paulus Aemilius to whom he had yielded himself escaped the severity of this custome but the rest having their eyes put out remained for ever after in Chains teaching thereby other Kings rather to preserve their faith and friendship with the people of Rome than to exasperate their justice But these things are written somewhat too loosely Josephus in his History concerning the death of Simon Bar-jorae testifies the same severity of the Romans but he speaks it of such Captains and Commanders only as was Pontius Samnis but not of such as carried the titles of Kings whose words sound thus The conclusion of the triumph was after that the triumphant Chariot was come to the Capitol for there by the Ancient custome the Conquerour was to stay till tidings were brought of the death of that great Commander whom he led in triumph who having an halter cast about him was presently drawn into the Market-place his Keepers whipping him forward for in that place by the custome of the Romans such as were condemned for Capital crimes were put to death and there executed So soon then as it was declared unto the Emperour that his Enemy was dead they immediately proceeded to perform all other the Rites that were in those cases provided very joyfully Orat. in Ver. The very same ceremonies doth Cicero also recite in his Oration concerning Punishments Concerning great Commanders thus Executed Histories afford us examples enough and some few of Kings also as of Aristonicus Jugurth Artabasdus I should be loth to revive this obsolete custome Jos Ant. l. 5. c. 1. Dion yet we read that Joshua put to death those Kings that he took Captives And Dion relates of Sossius That he whipt Antigonus with rods after be had fastned him to his Cross But withal the same Historian wisely adds Which no King ever suffered by any of the Roman Conquerours The same History we may also read in Josephus Ant. l. 15. Eutropius likewise records it of Maximianus Herculius that having slain the Francks and Almains and taken their Kings Captives He exposed them to be devoured by wild Beasts So doth Ammianus concerning a King of the Almains who being taken Captive was crucified Yet even among the Romans there were divers Kings besides Perseus that escaped the severity of that custome as Syphax Gentius Juba and in the time of the Caesars Caractius and others Whence it may appear that the Romans though as Cicero and others blame them for being too severe in this case had always some respect both to the causes of the War and also to the manner of its prosecution when they thus punish'd them And therefore it was no ill advice that M. Aemilius Paulus gave to the Roman Senate in the case of Perseus Si nihil humani metuerent at divinam vindictam timerent iis imminentem qui victoriâ insolentius utuntur Though they stood not in awe of any humane power yet they should do well to fear the anger of the Gods who never failed to avenge themselves on those who abused their favours with too much pride and insolency Plutarch in the life of Agis observes that in the Grecian Wars such reverence was born unto the office and dignity of a King that their very Enemies durst not offer violence to the Lacedemonian Kings An Enemy therefore that considereth not what humane Laws permit to be done but what in equity he ought to do or what Religion and Piety requires to be done forbears the shedding of the blood even of his Enemies neither will he sentence any man to death unless it be to preserve life or livelyhood to himself or for such personal crimes as by the Laws of God or Man deserve death yea and though some
Sex and those of feeble Age and offer violence to none but to such as resisted Now that compassion which seems to have been in all Ages taken of Infants and such as have not yet attained to the use of reason is for the most part shewed unto Women that is if they have done nothing in their own persons that may particularly deserve punishment or if they have not personally performed such service as properly belongs to Souldiers only For as Statius notes It is Sexus rudis insciusque ferri A sex that is ignorant and unfit for War As the Captain in Seneca's Tragedies demanded of Nero who had termed Octavia an Enemy Foemina hoc nomen capit Can a Woman be so called For which Cause Tucca and Varus thought it fit to expunge those two Verses in the second of Virgils Aeneads where Aeneas consults about the putting of Helen to Death It was a magnanimous speech of the great Alexander in Curtius It is not my custome to make War against Captives and Women Armatus sit oportet quem oderim He must be armed whom I look at as an Enemy So Grypus in Justine denies that either he or any of his Ancestors in all their Wars foreign or civil did ever after the Victory obtained exercise their cruelty upon Women whom their very sex did sufficiently guard as well from the perils of War as from the rage of the Conquerour And so doth he in Tacitus profess of himself That he never made War against Women nor against any others but such as he found armed to resist him Valerius Maximus relating the barbarous outrage L. 9. c. 1. which Munatius Flaccus exercised on Women and Children calls it Ffferatam crudelitatem auditu etiam intolerabilem A savage cruelty and not with any patience to be heard The Carthaginians as Diodorus testifies at Salinae destroyed not the Women and Infants only Lib. 13. without the least sense of humanity but their very Beasts also which he elswhere calls an act of cruelty Now what Latinus Pacatus said of Women that they were Sexus cui Bella parcunt A sex alway favoured in War The like doth Papinus say of old men that they are Nullis violabilis armis Turba senes A sort of People that no Arms can hurt X. Priests and Students to be spared What we have said of Women and Children may also be said of all men generally whose manner of life is altogether abhorrent from deeds of Arms Jure Belli in armatos repugnantesque caedes By that Right of War which is most agreeable to the Law of nature they only are to perish by the sword who have actually taken up the sword Livy l. 28. Ant. 12. c 3. Where there is no power to resist there can be no cause of revenge So Josephus It is but just and equal that they that take up arms should be punished by Arms but the innocent should always be indemnified Thus Camillus in Livy when he had taken Veji Lib. 5. commanded his Souldiers to spare every man whom they found unarmed And among these they are in the first place to be spared who are conversant about things sacred and holy for anciently it was the general custom of all Nations to exempt such from bearing Armes and for that cause were they also priviledged from the Force of Armes 〈◊〉 10.5 For seeing they could do no violence therefore was no violence done unto them Though the Philistines were mortal Enemies to the Jews yet did they forbear to use any violence to the College of the Prophets at Gaba So we read of David that he fled with Samuel to another place where there was such another Colledge of Prophets as to a place of refuge against all hostile violence 1 Sam. 19.18 Hircanus when he besieged Hierusalem sent Sacrifices to the Temple as the Jews testifie And the Goths are commended by Procopius for sparing the Priests that belonged to the Church of St Peter and St Paul being situate without the Walls of Rome Quaest Graec. Plutarch records it of the Cretians That though they were embroiled in Civil Wars yet did all Parties carry themselves inoffensively towards their Priests and towards those that had the charge of burning the Dead Lib. 8. It is observed by Strabo That when all Greece was harassed with Intestine Wars the Aeleans being consecrated to Jupiter together with those that came to sojourn with them lived in great peace and security And Servius upon the seventh of Virgil's Aeneads speaking of a Reverend Old Priest saith Eum defendebat à Bello si non Aetas saltem Religio Sacerdotis That he was priviledged from all violence Polyb. l. 4. if not by his Age yet in respect of his Priesthood In like manner also they that went up to try their Fortunes at the Olympian Pythian Nemaean and Isthmian Games though it were in the time of War Thucyd. l. 5. 8 Plut. Arat. were on all sides protected The like Priviledges and Immunities from the calamities of War were due unto such as though no Priests yet do voluntarilily sequester themselves from worldly Affairs giving themselves up wholly to piety and devotion For whom the Ecclesiastical Canons grounded upon natural equity do make the same provision as they do for Priests To these also we may add those who spend their time in either the invention or perfection of such arts as are useful or necessary for humane Society Wherefore Protogenes being demanded by Demetrius How he durst trust himself without the Walls of Rhodes Answered That he knew Demetrius warred against the Rhodians not against Arts. XI 〈◊〉 Husbandâ— Next unto these are Husbandmen who are also provided for by the Canons Diodorus Siculus records this in honour of the Indians That in their Wars they that are Souldiers do kill anâ— destroy one another without mercy but such as were employed in Husbandry they never molested 〈◊〉 2. as being Benefactors in common to all Parties The like doth Plutarch testifie of the ancient Corinthians and Megarenses Nemo Agricolas ullo afficiebat malo Not one of them would wrong an Husbandman â—yâ—opad l. 5. Thus favourable was Cyrus in Xenophon as appears by the M ssage he sent to the King of Assyria wherein he tells him That he was very willing that Husbandmen should follow their Callings without any disturbance And it is a very honourable teâ—timony that Suidas gives of Belisarius and worthy of all mens imitation That he was so great a friend to Husbandmen and took such care for their indemnity that whilst he commanded the Army Goth. l. 3. no Souldier durst ever injure them The like Testimony doth Procopius give of him XII And Merchants and the like Next unto Husbandmen the Canon provides for Merchants and not only for such as are Factors and Sojourners in the Enemies Country for a while but for such as are perpetual Subjects because the course of these mens lives are altogether averse
fortuitae pugnae They made but very few excursions and fought as few Battels but upon advantage Upon which account it was that Plutarch deservedly censured Demetrius Who rashly exposed his Army to unnecessary dangers rather out of vain ostentation than hopes of gain CHAP. XII Moderation in the spoiling of an Enemies Country I. What wast is just and how far forth it is so II. Things profitable unto us and out of the Enemies power not to be wasted III. Nor in case there be great hopes of a speedy victory IV. Nor if the Enemy may sustain themselves without them from other parts V. If the things to be destroyed are of no use to the maintenance of the War VI. As those things that are sacred or thereunto belonging VII So likewise those that are Religious VIII The benefit that attends such a moderation observed I. What spoil is just and how far forth THAT one man may destroy the things of another without injustice it is necessary that one of these three things should proceed Either such a necessity as may be presumed to have been excepted in the institution of primary Right or Dominion as when a man merely to avoid some imminent danger to himself shall cast the Sword of a madman into a River yet even in such a case there remains an obligation to make restitution to the full value according to the opinion of the best Authors as we have elsewhere declared Or secondly there proceeds some debt Lib. 2. c 2. §. 9. which arose from some inequality and then that which is wasted is so understood as if it had been taken in satisfaction of that debt for otherwise it would not be just Or thirdly there must proceed some crime or wrong done that may deserve such a punishment or which such a punishment doth not in proportion exceed For as it is well observed by a Judicious Divine It cannot stand with equity or right reason Vict. de Jure Belli n. 52. 56. that a whole Kingdom should be wasted because some herds of Cattel have been driven away or some houses or villages burnt which also is acknowledged by Polybius who would not have punishments by War multiplied without end or measure but rather that all injuries should be expiated by punishments proportionable And for these causes and within these bounds and limits an Enemies Country may be spoiled and wasted without injustice but otherwise unless it be for some great advantage to do another man hurt and to gain thereby nothing is but mere folly Srat. c. 6. Therefore wise men are usually swayed by matters of profit whereof the principal is that noted by Onesander Where he adviseth a Prince to destroy burn and lay wast his Enemies Country because saith he a scarcity of money and victuals will soon shorten the War as plenty will prolong it Herod lib. 1. Pol. lib. 4. Front Strat. 3. c. 4. Consonant whereunto is that of Proclus It is the duty of a good General to cut off forage from his Enemy and provisions from every side So thought Curtius of Darius That having nothing to feed himself and his Army with but what he must get by rapine and spoil he must needs at length be overcome by want and famine Now that spoil and devastation may easily be dispensed withal which soonest enforceth an Enemy to sue for Peace Philo the Jew in his Book of a contemplative life saith They that are in Arms do â—sually destroy and lay wast their Enemies Country Ut hostes eo facilius se dedant rerum necessarium penuria That so being punished by famine they may without the hazard of a Battel be compelled to yield themselves to the Conquerour After this manner did the Halyattes make War upon the Milesians the Thracians against the Byzantines the Romans against the Campanes Capenates Spaniards Legurians Nervians and others But if we would diligently observe how our modern Wars are managed we shall find that such devastations are now a days made more out of hatred than any prudent council for it so falls out oft-times that either those reasons which would perswade us thereunto do cease or those that disswade us from it are more forceable II. No wasting of things profitable to us and without the reach of the Enemy And this in the first place happens when that part of the Country which yields profit is so in our possession that the Enemy can reap no benefit by it And hereunto doth the Divine Law properly look when it permits wild and unfruitful trees to be cut down to make engines for War but commands such as are fruitful to be preserved for food * Deut. 20.19 De Creation Magist adding this reason because trees cannot rise up in Arms against us as men may which precept Philo by a parity of reason enlargeth to fields and other lands that are fruitful affixing these words thereunto Quid rebus inanimis quae mites sunt mites fructus ferunt irasceris Why art thou angry with things inanimate especially with such as are in themselves gentle and that yield sweet and delectable fruit unto others Do they like men express any menacing signs of hostility against thee for which they deserve to be eradicated Are they not much more profitable to the Conquerour whilst they live and bear fruit than when they shall be torn up Do they not yield thee plenty of things not only for necessity but for delight and pleasure For trees and fields as well as men do in their respective seasons pay tribute to the Conquerour yea and much better being so necessary that we can no ways live without them And in another place he commends the equity of Moses in restraining the licence of Souldiers from destroying Trees bearing Fruit or Corn before it be ripe adjudging it very unjust Iram in homines conceptam erogari in ea quae causa mali nullius sunt That our indignation against men should be exercised upon things that do no ways hurt us besides seeing that all sublunary things are mutable and that nothing long continues in the same state wherein now it is some provision ought in prudence to be made for the future Possible it is that they that are now most bitterly enraged against us may upon debate and conference had become our Friends and Allies And then we will easily confess That Amicos necessariis fraudare durum est To defraud our Friends of necessaries is very hard It is very true what from our Ancestors we have received We ought so to trust our friends as if at some times or other they may be our Enemies that is that every man ought to reserve something within his own breast of what nearest concerns himself whereby to provide for his own safety and not so wholly to discover himself by his words or actions as that he may one day repent himself by reason of the vehemency of either passion and blame his own rashness when it is too
we make not the act void Thus the old Pimp in Terence Leno sum fateor Pernities communis Adolescentûm Perjurus Pestis tamen tibi à me nulla est orta injuria A Bawd I am Youth 's Common Pest 't is known Perjur'd yet wrong by me Thou hast had none It was no ill Plea then that Nabis in Livy made when his tyranny was objected against him by Quintius Flaminius Concerning the name Tyrant I answer That whatsoever I am I am the very same I was when thou O Titus Quintius entredst in League with me And by and by These things whatsoever they are I did when ye contracted friendship with me Whereunto he presently adds Si quid ego mut âssem mihi inconstantiae meae cum vos mutetis vobis vestrae ratio reddenda est If I had changed I ought to have given the reason of my inconstancy but seeing it is you that change you ought to give the reason of yours Not much unlike unto this is the Answer that Pericles in Thucydides gives unto his Subjects Our Confederates we shall permit to enjoy their own freedom and to live by their own Laws if they did so when they first entred into League with us IV. Fear not to be objected if the Promiser were not himself affrighted Another Objection may be made which I have heretofore hinted * Lib. 2. c. 11. § 7. namely That he that by fear hath extorted a promise ought in Justice to release the Promiser as having by his injustice damnified him that is by such an act as is repugnant both to the nature of humane Liberty and to the nature of the act it self for all promises that bind ought to be free This though in some cases true yet is not to be extended to all promises that are made to Thieves for that the Promised be bound to free the Promiser it is requisite that he to whom the promise was made should have extorted the promise by an unjust fear But in case a man shall come and promise to pay the ransome of his Friend and thereby deliver him out of Bondage he is bound to perform it because there was no impression of fear upon this man who in the behalf of his Friend came voluntarily to make this Contract V. What if the promise were bound by Oath Whereunto we may add That he that is compelled even by an unjust fear to make a promise may be obliged to perform it if he confirm that promise with an Oath for thereby as we have shewed before he stands bound not unto men only but unto God against whom no exceptions can be admitted But true it is notwithstanding That by such a sole promise though confirmed by Oath the Heir of the Promiser stands not obliged for those things only descend to the Heir which by the original Right of Dominion may pass from man to man in ordinary Traffick But those things that are due unto God cannot as such be included amongst these Moreover here we must again repeat what we before delivered Lib. 3. c. 4. §. 10. That if a man do haply break his faith with a Thief whether sworn or unsworn he shall thereby incur no punishment amongst other Nations For generally all Nations in detestation of these men whom they account as common enemies to humane Society are pleased to connive at whatsoever is though unjustly done against them VI. This applied to Subjects that make War But what shall we say concerning the War that Subjects make against their King or against such as have the Supreme Authority Though they may haply have a cause not in it self altogether unjust yet that they can have no Right to act by force against their Prince we have elsewhere shewed * Lib. 1. c. 4. But yet it sometimes so happens That either their Cause is so notoriously unjust or their obstinacy in resisting so great that it may be severely punished But yet if they be treated with as Rebels or Traitors and therein any promise made unto them the punishment though justly due for their Treason ought not to be pleaded in Bar to the performance of that promise For such was the piety of the Ancients that they durst not break their faith no not with their very Slaves as may appear by the Lacedemonians Aelian 6 7. who were generally believed to have been justly punished for putting their Tenarensian Prisoners to death contrary to their Covenants And it is likewise observed by Diodorus Lib. 11. That the faith given to Slaves in the Temple of the Palici was never broken by any of their Lords Neither will any exceptions of fear be allowed of in this Case if the faith given be by Oath confirmed as we may collect from M. Pomponius the Tribune of the People Sen. de benef l. 3. c. 37. who being bound by Oath punctually performed what he had though compelled by fear promised to L. Manlius VII Of Promises made by Sovereign Princes unto their Subjects But a greater difficulty than any before mentioned may arise from the Legislative Power and from that supereminent Right of Dominion which every City hath over the things of their Citizens and which is exercised in its name by him who hath the Supreme Power therein Which supereminent Right if it extend it self to all that is the Subjects why should it not likewise unto that Right which ariseth from any promise made in War Which being granted then it should seem that all such Promises and Agreements may be null'd and so all hopes of concluding a War unless by Victory would be lost But on the contrary we must observe That this superlative Right is not fit to be put in execution promiscuously at all times but so far forth as it is commonly expedient to the preservation of the publick safety in a Government not Tyrannical but Civil yea even Regal But for the most part it is commonly expedient That all such Promises and Agreements should be fulfilled Very apposite to this purpose is that which we have already written concerning the defence of the present Government adding thereunto That where the publick safety requires that this Sovereign Right should be made use of satisfaction ought to be given out of the publick to such particular persons as shall be thereby damnified as shall be hereafter more fully explained VIII That such promises may be confirmed by the Oath of the City Moreover Agreements may be confirmed by Oath and that not by the King or Senate alone but by the whole Body Politick as Lycurgus bound the Lacedemonians and Solon the Athenians by Oath to observe the Laws they had given them And lest the change of Citizens should in time relax the binding power of this Oath and so at length it be forgotten or left arbitrary this Oath may be every Year renewed which if done the Citizens could by no means recede from their Engagements no though it were for their publick profit For a City hath
because as the same Dionys Halicarnessensis excellently observes * Lib. 3. Non tam cogitandum est de sarcienda in praesens amicitia quam id curandum ne Bello iterum implicemur neque enim ad differenda sed ad auferenda mala convenimus We are not so much to consider how to piece up a broken friendship for the present as how to provide that we be not again intangled in the same War hereafter For our main design in this Treaty is not to put off the miseries of War but to take them quite away Which last words are borrowed from Isocrates Orat. pro pace XX. Things taken after the Peace is made are to be restored The Peace being once concluded and ratified it is expedient that whatsoever is taken away afterwards must be restored for from thenceforth all licence of War is taken away XXI Some cautions concerning the restoring of things taken in War But among those Articles that concern the restitution of things taken in War those in the first place will admit of a larger interpretation that are mutual than those that concern one Party only and next those that respect Prisoners are to be construed with more allowance of favour than those that respect things And among those that respect things those that have relation to Lands ought to be more favourably understood than those that relate to Moveables and even among these such as are in the possession of the Common wealth than those in the possession of private men Cic. de Offic. l. 2. And among those Articles that command the restitution of things in the possession of private men those are to be taken in the larger sense that are possest under a gainful than those under a chargeable title as things bought with our money and things held in Dowry by Marriage XXII The profits restored with the things To whomsoever any thing is granted by Articles of Peace to him also is granted all the fruits and profits thereof from the time of that concession but not before which Augustus justly defends against Sextus Pompeius who having Peloponnesus granted unto him claimed all the Tributes that were in Arrears for some years past before the time of that Grant XXIII The names of Countries The names of Countries are to be taken as they are at present used not so much by the common people as by such as are learned for by such only are these Affairs negotiated XXIV Reference to some former Agreements The aforesaid Rules are of frequent use as often as reference is had to some precedent or ancient Agreement for so often the Qualities and Conditions exprest in that Agreement are supposed to be repâ—aâ—â—â— Quintil. Dec. 248. And he shall be deemed to have performed his Agreement who was willing to have performed it had he not been hindred by another in whose power it was to obstruct the performance of it XXV Of delay But whereas some are of opinion That excuses may be admitted for some short delay in the performance of an Agreement this holds not true unless that delay be occasioned by an unexpected and unavoidable necessity That some of our Canons do seem to favour suth purgâ—tions is no wonder seeing that it is their design to perswade Christians to such things as promote mutual Charity But in this Question that concerns the interpretation of Agreâ—ments we enquire not what is best no nor what either piety or Religion require of us but what we may lawfully be compelled unto All which is to be determined by that Justic◠〈◊〉 wâ— call external XXVI The interpretation of words doubtful ought to favour the weaker But where the words wâ—â—l bâ—aâ— a double sense that interpretation is most to be favoured which makes against him tâ—at imposeth Laws because he is usually the most potent Party The power saith Hannibal is in him that gives not in him that demands Conditions of Peace As in other Contracts that are doubtful the interpretation ought to favour the Buyer for the Seller may blame himself that he did not fully express himself But the other receiving Conditions in words that will admit of divers sences hath a Right to accept of what is offered in that sense which is most favourable to himself Tua merx Persa tua judicatio est saith Plautus It is in him to set the price that ownes the Goods In War he prescribes first that is most powerful but in demanding Conditions he first speaks that is the weaker So Sulla in Plutarch Eorum est prius loqui qui opus habent Pace Victori satis est tacere Let them speak first that stand in need of Peace it is enough for the Conquerour to be silent XXVII Great difference between giving cause of a new War and breaking the Peace It it also frequently disputed when a Peace may be said to be broken for it is not one and the same thing to give a cause of War and to break a Peace But between these two the difference is great as well to require punishment from the Delinquent as to vindicate the Faith of him against whom the offence was committed in other matters Now a Peace may be broken three several ways first By doing that which is contrary to all Peace secondly In doing contrary to that which is plainly and expresly said in that Peace thirdly Peace broken three ways In doing contrary to that which from the nature of every Peace ought to be understood XXVIII The first way of breaking Peace First The Peace is broken when that is done which is contrary to all Peace as when we are invaded by Force of Armes there being no new cause of War which if with any probability it may be alledged better it were so to understand it as if the War were simply unjust than that it should be both unjust and also treacherous Pacem rumpunt non qui vim vi arcent Thucyd. sed qui priores vim inferunt They break not the Peace who repel force with force Lib. 29. but they who first offer violence Therefore Ammianus speaking of the Romans saith That they purposely gave back because they would not be thought the first Aggressors yet afterwards Pers 2. being urged thereunto by necessity they gave Battel willingly So likewise Procopius in that Oration which Armenius makes to Cosroes They saith he are not always to be accounted the Peace-breakers that are first in Armes but they who during the League are found treacherous to their Confederates Vand. lib. 2. Thus also do the Moors in Procopius They break not their League who being first injured and publickly complaining thereof in vain fly for succour unto others but they who first wrong those whom they owne as their Associates Neither do they make God their Enemy who taking nothing with them but their own fly unto others for protection but they who invading other mens Rights do inforce them into War to defend their own This
last until some new declaration of the will of the Donor shall rescind it for in a dubious case that which was deemed sufficient to give a Right shall be presumed sufficient to continue it But yet not if he that granted it be disabled any longer to declare his pleasure as in case he be dead for then whatsoever depended barely upon the uncertainty of his will shall likewise cease as accidents do when the substance fails XXII A Pass implies protection A Safe-pass being granted protection is due even beyond the Territories of him that grants it because it ought to protect us against all the licence of War which of it self is not confined within the bounds of any one Princes Dominion as we have elsewhere shewed Bo. 3. ch 4 XXIII The redemption of Prisoners The redeeming of Captives is very much favoured especially among Christians it being an especial act of mercy commended unto us by the Law of God Redemptio magnum praeclarum justitiae munus were the words of Lactantius The redeeming of Prisoners is a great and singular part of justice And in case it be from Barbarians Matt. 25.36.39 De Offic. l. 2 c. 28. it is by St. Ambrose reckoned as the best and greatest liberality in the World and in that Apology he makes for himself and his Church for the breaking in pieces the consecrated Vessels thereby to redeem the Captives he affirms that Ornatus Sacramentorum est redemptio captivorum The chiefest ornament to Christian Sacraments is the redeeming of Slaves where also he hath many other such excellent sayings to the same purpose St. Aug. following the example of St. Ambrose did the like though contrary to the carnal sense of some who therein opposed him as Possidius relates The very same is recorded by Hincmarus in the life of Remigius And Adamus in his Ecclesiastical British History makes honourable mention of the like fact done by Rimbertus Archbishop of Breme And we likewise find it approved of by the sixth general Synod whose decree is recited by Gratian namely Causa 12. q. 2. That no Bishop shall presume to alienate any of the consecrated Vessels of their Churches unless for such causes as were of old approved of by the Ancient Canons of the Church as for the redeeming of Captives and the like XXIV Whether the redemption of Prisoners may by any Law be forbidden Being thus awed by so great Authorities I dare not absolutely approve of those Laws which forbid the Redemption of Slaves without a distinction such I mean as we may read of among the Romans Nulli Civitati viliores Captivi quà m nostrae There is no City so regardless of Captives as ours saith a wise Roman in open Senate For which cause Rome is called in Livy Civitas Captivis minime indulgens A City shewing little favour to Captives That Ode of Horace is very well known where he condemns the ransoming of Prisoners as an opprobrious act an example of dangerous consequence and is an execrable fact encouraged with a reward But what Aristotle blames in the Laconian is also usually blamed in the Roman Government namely that all their Polity tended only to the advancement of their Military Discipline as if in this alone consisted the safety of their Commonwealth whereas if we will but duly consider it as rational men with the allowance of some grains of compassion it would seem much better to rebate somewhat of that rigour which the licence of War permits than to leave so many of perhaps our Kinsmen and Countrymen in an everlasting slavery I cannot therefore conceive how such a Law can be reputed just unless it shall appear that such a severe course is necessary for the prevention of far greater and morally inevitable calamities which will otherwise in all humane probability fall upon us for in such a case of necessity as the Prisoners themselves ought by the rules of Charity patiently to bear their hard fortune so may this punishment be justly imposed upon them and threatned against others to deter them from the like cowardize according to what we have elsewhere written concerning any one Citizen which for the publick safety of the City may be delivered up XXV That a man may transfer his Right in a Captive True it is that to make Slaves of such as are taken in War is not agreeable to our Laws and Customes yet doubtless may that Right of exacting a ransome from him that is so taken by him that took him justly be transferred to another For by the Law of Nature things even incorporeal may also be alienated XXVI The ransome may be due to more than to one And possible it is that the same ransome may be due to several persons as in case a Prisoner being discharged by one the ransome not paid be apprehended by another and after that by another these must needs be distinct debts because they arise from distinct causes XXVII Whether an agreement for a ransome be null'd his estate or quality being not then known The ransome agreed upon shall bind the Contractors though the Prisoner be found richer than he was thought to be when the Contract was made because by that Right of Nations which is external whereby we are in this case to be judged no man can be compelled to give a greater price than what was first agreed on although undervalued if there were no fraud in the Contract as may easily be understood by that which hath been already delivered in the Chapter of Agreements * Lib. 2. c. 26. XXVIII What Goods of Captives are his that takes them From what hath been already said that Captives are not now to be made Slaves it follows That the Dominion that we have over their persons doth not give us an universal Right to all that is theirs as hath been elsewhere said * Lib. 3. c. 7. §. 4. for he that takes a Prisoner hath a Right to nothing but what he particularly lays hold on so that if the Prisoner can conceal any thing he hath from him he cannot be said to get it because he is not thereof possest Thus Paulus the Lawyer pleads against Brutus and Manlius He that takes a Field into his possession cannot be said to be possest of the treasure which he knoweth not to be there buryed for no man can be said to possess that which he knows not of Whence it will likewise follow that what the Prisoner can so conceal he may make use of for his Redemption XXIX Whether the ransome agreed on be chargeable upon the Heirs Another Question is like to arise namely whether a ransome agreed on the Prisoner dying before it be paid may be recovered from his Heir Whereunto the answer is easie for if the Captive dye in Prison doubtless the ransome is not due because the promise was made upon condition that the Prisoner should be set at liberty but he that is dead cannot be said to be at liberty But on the
contrary if being at at liberty he shall dye the ransome shall be recovered because he enjoyed that for which the ransome was promised yet I confess the Contract may be so made that the ransome shall be due simply and immediately from the time of the Contract and then the person taken shall not from thenceforth be held as a Prisoner of War but as one that doth freely engage himself as a Surety for the payment thereof So on the contrary the Contract may be so made that the ransome shall not be due unless the Prisoner live and be at liberty upon a Day prefixt but these things being less natural shall not be presumed to be done unless evidently proved XXX Whether he that is freed to free another ought to return the other being dead It may likewise be questioned whether he that is released on condition that he shall release another if that other dye before he be released is bound to return into Captivity I have elswhere * Bo. 2. ch 11. §. 22. 15. and in this Book ch 20. §. 58. proved that a promise freely made for the Fact of a third is sufficiently performed if nothing be omitted by the Promiser in order to its accomplishment but if a promise be made upon a valuable consideration the Promiser stands obliged to the full value of what he promised Just so it is in this case for he that is released is not bound to return into Captivity because it was not so agreed upon nor will that indulgence that is given to liberty admit it so to be tacitly understood neither ought any man to make a gain of another mans liberty but yet he that is so dismist out of Prison ought to pay the value of that which he could not perform For this cause was Balionius much blamed by Mariana who being released upon his promise to release Carvailius Carvailius dying before he could be released refused to pay the value of his ransome This answer I conceive to be more agreeable to the naked and simple truth than that which is delivered unto us by the Interpreters of the Roman Laws CHAP. XXII Concerning Faith given by inferiour Commanders in War I. Of the several kinds of Commanders II. How far an agreement by them made binds the supreme power III. Or gives occasion to such an obligation IV. What if any thing be done contrary to commands this explained by distinctions V. Whether in such a case the contrary party be obliged VI. What the Commanders in War or the Magistrates may do concerning their inferiours or for them VII It is not in the power of a General to make Peace VIII Whether hâ— may grant a Truce this cleared by a distinction IX What security of persons and what of things may be granted by them X. Such Agreements are to be strictly understood and why XI A surrender accepted by a General how to be understood XII The addition of this caution if the King or the People shall think fit secures the General XIII How the promise of delivering up a Town is to be interpreted I. The several kinds of Commanders AMONGST publick agreements this is reckoned by Vlpian as one when the Generals of each Army do agree about some things between themselves We declared before that when we had sufficiently discourst of Faith given by the supreme Powers we would likewise say somewhat of Faith given by subordinate Powers and that either between themselves or unto others whether those powers were next immediately to the supreme As that of Generals to whose Conduct the Army is committed whereunto we may fitly refer that of Livy Nec Ducem novimus Lib. 4. nisi cujus auspicio Bellum geritur We acknowledge no other Captain but him to whom the management of the whole War is committed Or whether they are such as are Commanders under them between whom Caesar in his Commentaries distinguisheth thus Lib. 3. The office of a private Captain is one thing and the office of a General is another the former doth but execute particular orders but this latter ought freely to consult and provide for the safety of the whole II. How far agreements by them made bind their Soveraigns As concerning these mens engagements there ought to be a twofold inspection first Whether the supreme powers are thereby engaged and secondly Whether they themselves are bound by them The former of these may be determined by what we have already said namely That Princes may be obliged by such as they depute to declare their wills whether particularly exprest or collected from the nature of their office for he that grants a power grants as much as in him is all things necessary to that power which in moral things is morally to be understood whence we may collect That subordinate Commanders may oblige their Soveraigns two several ways first by doing that which in all probability belongs to their place or office secondly by doing that which belongs not to their office yet which they have a special Commission to do in case that Commission be either publickly known or at least unto those with whom they have to do III. Or give occasion to such an obligation There are also other ways whereby a Soveraign Prince may be bound by the facts of his Officers yet so that that fact is not the proper and immediate cause of that obligation but the occasion only which may be done two ways either by conâ—â—â—ting unto it when done or by the thing it self Their consent will appear by their approbation which may be given not only expresly but tacitly that is when the supreme power had knowledge thereof and yet permitted them to be done which cannot with any probability be referred to any other cause and how this may proceed we have elsewhere shewed By the thing it self he may be so far obliged Bo. 2. ch 4. §. 5. ch 15. §. 17. as not to enrich himself by anothers loss as if by an agreement made by his Ministers a Prince receives any benefit he is thereby bound to perform that part of the said agreement which concerns himself to perform or if he refuse to do it then he is bound to forego the benefit which he either hath or may receive by that agreement for this is that equity which as we have often elsewhere said evens the scales of justice And hitherto and no farther is that saying true Si quid utiliter gestum sit valet Whatsoever contract brings profit binds the Contracter And therefore we cannot but condemn them of injustice who refusing to fulfil the agreement yet are resolved to detain that which but by that agreement they could never have had as the Romans did when they refused either to confirm the agreement made by Cnaeus Domitius or to set at liberty King Bituitus whom Domitius had first invited as his Guest and then perfidiously taken and sent bound to Rome which fact as Valerius Maximus testifies Senatus nec
approbare potuit nec rescindere voluit The Roman Senate neither could approve of nor would for Reasons of State rescind Many other such like examples we may find in Histories IV. What if any thing be done contrary to Command And here also we must repeat what we have formerly delivered namely That a Sovereign Prince may be obliged by the fact of his General in case he transgress not the bounds of his publick Office though he act contrary to his private instructions this equity was well observed by the Roman Pretor in such actions as concerned Factories For it is not every Contract made with a Factor that shall be binding to him that employs him but such only as are made concerning such Goods for which he is appointed his Factor But in Case it be publickly proclaimed That no man shall thenceforth treat or make any Agreement with such a man that man shall no longer be treated with as a chief Minister Nay though such a Proclamation be made yet if it appear not so to the Contractors whatsoever shall be by him agreed on shall bind the Prince that first employed him Moreover the condition of his Preposition ought to be observed for he that is willing to be treated with under such a certain condition and by the mediation of such a person whatsoever is agreed upon by that person in reference to the business for which he was commissionated ought in all equity to be observed Whence it follows That some Princes or People are more and some less bound by such Contracts as are made by their Generals if their several Laws and Constitutions are sufficiently known But in Case these be not well known then must we be guided by the most likely conjectures which always presume that to be within their power without which they cannot well discharge the Office of a General But yet if any such inferior Officer shall transgress his Commission and promise more than he can perform he himself shall be bound to the full value unless some Law sufficiently known shall hinder it So likewise if there shall be found any fraud in the Case as if such a principal Commander shall pretend to have a greater power given him by his Prince than indeed he hath he shall then be obliged to satisfie for the damage thereby sustained yea and if through his crime some great injury do arise to the adverse Party he shall be bound to suffer punishments answerable to his crime In the former Case his Goods shall make satisfaction and if those fall short his service or his Corporal Liberty In the latter his person or his Goods or both according to the greatness of his crime Neither will it suffice in the Case of fraud to declare before-hand that he will not oblige himself For as well satisfaction for the damages done as punishment for a crime committed are both of them due not by a voluntary but by a natural obligation V. In which Case the other Party stands obliged Now because in all such Contracts either the Prince or his Principal Minister doth stand obliged therefore it follows That the other Party is thereby obliged for the Contract cannot be said to halt And by this we may discern the power that subordinate Commanders have to oblige their Superiours VI. What power they have over their Inferiors Now let us see what power they have over their Inferiours And surely it is not to be doubted but that a General hath a power over his Souldiers and a Magistrate over his Citizens as to those Acts that are usually subject to their Command but not otherwise without their consent On the contrary an Agreement made by a General or a Magistrate in such things as are merely profitable shall wholly bind their Inferiours For this is sufficiently warranted by their Office and Authority yea and in such things also as are burthensome and chargeable so as those burthens be such only as have been usually exacted but as to those that are extraordinary they stand not obliged without their own consents and acceptance Which things are very agreeable to what we have already from the very Law of Nature proved Lib. 2. c. 12. § 18. concerning a stipulation made in the behalf of a third person But these Generals will receive a clearer light in the handling of these Particulars VII It is not in the power of Generals to make a Peace It belongs not to a General to look into the Causes or consequences of a War it being his Duty carefully to manage the War but not to conclude it yea though he have the greatest power that can be given him by his Commission yet shall it be understood of the conduct of the War only Neque enim nos Jus habemus ordinandi res Imperatoris For neither have we any power to dispose of what only belongs to the Emperour saith Belisarius to the Goths Thus Agesilaus answered the Persians De Pace constituendi Jus est penes Civitatem It is only in the power of the Commonwealth to make Peace And therefore the Peace which Albinus made with Jugurtha withour Order from the Senate the Senate broke as Salust informs us Thus likewise Livy Quî rata ista pax quam non ex authoritate Senatus non jussu populi Romani peregerimus What stability can there be in that Peace which is made without any Order or Decree either of the Senate or People of Rome And therefore neither did that Promise made at Caudis nor that made at Numantia bind the people of Rome as we have elsewhere said And thus far is that of Posthumius verified If there be any thing whereunto a People may be obliged they may be also obliged to all things that is to all things that concern not the Conduct of War And this is apparent by what hath been already said about Surrenders and about Sponsions made for the leaving or burning of Cities and concerning the change of Government VIII But it is to grant Truces To grant Truces is in the power not of a General only but of inferiour Commanders that is to such as they either assault or hold besieged so far forth I mean as it shall concern themselves and their Forces For other Commanders are not thereby obliged as we may-learn from the examples of Fabius and Marcellus recorded by Livy Lib. 24. IX But not to dispose of Men Empires or Lands On the other side to dispose of Men Empires or Lands is not in the power of Generals and therefore was Tigranes dispossest of Syria by the Senate although it had been given him by Lucullus * Just l. 40. Neither was it in the power of Massinissa to release Sophonisba whom he had taken in War because as Scipio pleaded She was under the power and at the discretion of the people of Rome †Liv. l. 30. But over the rest of the spoil the General hath some kind of Right yet not so much by virtue of
sorts of Murtherers page 196 197 Laws guide to wisdom Pref. ix Laws may so far proceed against a King as to evidence the Right of the Creditor but not to compel him page 177 178 Contrary to Law things done not nulled unâ—ess so exprest by the Law it self page 147 Laws bind not in cases of extreme necessity page 567 Laws made to avoid greater mischiefs only must not be so understood as to make that sinful which is otherwise lawful page 483 Laws without a coercive power externally weak Pref. ix Laws and Arms opposed Pref. ii The six Laws given to Adam what page 8 There is the same Law where is the same reason or equity page 196 Humane Laws to be interpreted with some allowance for humane frailty page 59 The Law in prohibiting doubles the offence 380. of Moses erroneously quoted for that of Nature Pref. xviii Without Laws no community can consist Pref. ix Laws humane depend upon the will of the maker for their institution and continuation page 21 22 Laws may bind as to humane judgment that bind not the Conscience 483. nor bind longer than the coercive power lasts ibid. severe in the defence of Kings page 61 Laws commanding stronger than those that permit and those that forbid stronger than those that command page 199 The reason of a Law particularly failing shall not exempt that case from the Law but it may be dispensed with page 35 Lawful taken either for that which is just and honest or for that which is not punishable page 456 The Law of Nations how beneficial Pref. ix it is like the Soul in the Body page 451 Humane Laws depend upon the will of the Lawmaker both for their institution and continuation page 377 A League what 181. when said to be renewed 187. void if by either broken ibid. Of Leagues the Ancienter to be prefer'd ibid. that made with a Free people real ibid. that with a King not always personal ibid. A League holds with a People or a lawful King though exil'd his Kingdom but not with an Vsurper page 195 League equal or unequal page 183 Leagues how they differ from Sponsions ibid. Leagues unequal 48 183 184. give no jurisdiction properly page 49 In unequal Leagues Kings or People may be equal in freedom though not in dignity ibid. In Leagues who are superiour page 49 50 Leagues some require exact natural Right only and why 182. its breach is a matter odious page 193 The Prince of the Leagues may be said in some things to command page 49 50 In Leaugues unequal the danger whence page 51 Leagues unequal contracted sometimes where no War is 184. whether to be made with men of different Religion ibid. this proved by experience 185 186. some cautions page 186 Leagues forbidden to be made with some Nations and why page 184 Of Leagues some favourable some odious some personal some real page 195 Leagues of Peace and society these either for Commerce or War page 182 183 Whether they that are unequally Leagued have the Right of Embassages page 206 Leagues divided page 182 A League for a set time not by silence renewed page 187 No League binds to an unjust War page 186 No breach of League to defend the injured Party if in other things the Peace be kept page 194 Leagues never made but between Soveraign Princes page 181 Leagues of Joshua with the Gibeonites 169 he might not make a League with the Canaanites and why page 184 In Leagues words of Art interpreted according to Art 191. the stronger gives the greater power the weaker the greater honour 49 50. this Article not to make War without consent is to be understood of an offensive War only page 194 A League made with a Free People is real and binds though they admit of Kings unless made with other Free Cities to defend their liberty page 195 The Lenity of the Ancient Fathers towards them that erred in things Divine page 391 Letter of Marque page 448 Liberty personal recovered by Postliminy 489. or Peace which to be prefer'd page 419 The Liberty of a People what it signifies 42 43 c. of making War not rashly to be believed to be renounced page 193 The Liberty of Subjects obliged by the fact of their Superiours page 447 Liberty natural is to live where we list page 115 Liberty the usual Cloak of Ambition page 65 Liberty lost to recover no just cause of War page 407 Liberty some left the Conquered may secure the Conquerour page 527 Life prefer'd before Liberty page 419 The Lesser number to yield to the greater not natural page 139 Long possession see Possession Lots sometimes end a War page 551 Love of Parents toward their Children more natural than that of Children towards Parents page 123 A Lye strictly taken what 440. forbidden 439. by some good Authors in some cases approved 440. a wholesome lye the jocular and charitable not much blamed page 442 443 The form of a Lye what 441. whether naturally unlawful ibid. To Lye and to tell a lye differenced by Gellius page 440 Lyes our refuge in danger Rahabs lye page 443 No Lye if by an untruth spoken by me a By-stander be deceived page 442 Of Lyes the Schoolmen admit not but they do of Equivocations page 443 444 A Lye to preserve life whether lawful page 443 To Lye to an Enemy lawful 439 443. to be understood of words assertory not promissory 443 444. yet not if bound by Oath ibid From Lying to abstain even to an Enemy magnanimous page 444 Lying to be excluded in all Contracts in a Market page 441 To Lye in time and place fitting the part of Stoical wisdom page 440 Lying ill becomes a Prince 444. fear and poverty make Lyars ibid. For Lying and Perjury the punishment the same page 175 It is no Lye if in an Amphibology our words agree with either sence though misunderstood page 440 M. MAccabees resistance what page 60 Macedonians put all that are of kin to Traitors to death page 403 Magistrates should punish Offenders as Parents do Children page 417 Magistrates killing men are innocent but private men doing the same are Murtherers 374. whether they may remit punishments 375. Inferiours must not resist the Supreme 58. why chosen 376. they must judge according to Law but Princes the Laws themselves page 377 No Magistrate chosen without an Appeal to the People of Rome page 65 Magistrates Inferiour may reduce Rebels in a Case of imminent danger page 35 Magistrates Christians in St. Paul's time page 18 Magistrates amongst the Jews did not resist their Kings though wicked 57. in what Cases obliged to reparation of damages 203. how far they may oblige Citizens page 564 Magistrates not taking caution from Privateers whether obliged for the wrongs they do to their friends page 203 The Magnanimity of the Romans in respect of the Greeks page 445 Mahometans hold a necessity of restitution page 495 Majesty taken for the Dignity of the Person governing 49. what that
be understood as he understands to whom they are made 167. called Vows and why 172. the end of all controversies 172. bind not to things unlawful 169. of Joshua to the Gibeonites binding page 168 169 The Oath of the Roman Souldiers to the Carthaginians binding page 167 168 An Oath not to be too far wrested 169. not to do good not binding 170. nor that which hinders a greater good ibid. cannot bind to impossibilities ibid. by false Gods binding 171. by the Creatures obligeth ibid. by fraud or fear extorted must be fulfilled for the Oaths sake 172. made to Pyrates or Tyrants obligeth ibid. In Oaths two things requisite truth in words and fidelity in Actions ibid. Over Subjects Oaths what power Superiours have page 173 By a false Oath to deceive an Enemy Perjury page 172 Of Oaths some are assertory and some promissory 174. the latter forbidden by James and Christ ibid. Oaths should except necessity and coaction page 123 From Oaths Absolutions from whence originally page 174 By Oaths promises made in what Cases oblige not page 173 An honest mans word as good as his Oath page 175 An Oath to perform Kings bound before God page 177 Oaths from Subjects should have this restriction Vnless my King command the contrary ibid. Philip of Macedon regardless of Oaths page 537 The form of Oath Military page 28 To Obey more natural to some Nations than to command page 38 Obedience in what cases necessary 55 56 429. sometimes unlawful 427. especially in things forbidden by God or Nature 53. to commands unjust not due 429. readily yielded by him that understands the reason of the Law page 430 Obedience to Parents and sustentation to Children due 123. yet it cannot justify our disobedience to God page 427 Obligation restraining the faculty or the exercise of such an Act only the difference page 47 48 Obligation feudal see Feudal Obligations arising from Dominion page 146 Obligation internal gives no Right to another page 151 Obligations all require deliberation page 551 552 Obligations by Officers with our default from what Law it proceeds page 203 204 Kings may be obliged either naturally or civilly page 177 Obliged we may be by another page 154 Oblige we may whatsoever we have absolute power in or over page 400 401 Obliged we may be to a Pirate or Robber being not terrâ—fyed by fear page 538 Obliged a man may be by some Delinquency page 200 Obliged none can be to an unjust War page 187 Of Obligations without compulsion examples page 211 Obstinacy to defend our own Party no just cause to kill an Enemy page 508 By the Occasion of anothers sin a man may suffer though that sin be not the cause of his suffering page 401 Occupancy its Rights where things are in common page 78 By Occupancy what every one had was the first rise of propriety page 79 Of Occupancy after the communion was lost page 80 Occupancy presumeth things bounded 81. as Lands by Mannors or Farms ibid. of Empire and of Dominion as distinguished from Empire 88. it was the original way to gain Dominion by the Law of Nations page 135 What if it be of a place pre Occupied by men irrational page 407 The Occupant in doubtful Cases hath the best Title page 414 To the ancient Occupants Lands restored by the Emperour Honorius after three hundred Years page 492 Odious Promises which 192. how to be interpreted ibid. Leagues and Promises if in doubt are personal page 194 Offenders being demanded when to be delivered page 395 396 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 439. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 407 Old men in War to be spared page 505 None the same Old as young page 141 Opinions concerning God being not easily demonstrable no cause of War page 389 Our Opinions especially concerning Religion hardly parted from page 391 Oppression notorious a just cause of War if without danger to our selves page 424 Oppression of Subjects where greater than the miseries of War War may be made against Tyrants page 421 Ordinance of God in what sense Kingly Power is said page 18 Order what among Equals or Associates page 114 The Order of such as have equal shares in things ibid. In what Order they are bound to restore who have occasioned damages page 201 202 The Order of Christian Kings sitting in Council page 114 Original acquisition page 88 Owner right not known none bound to restore page 149 The right Owner transferring his Interest is a sure Title page 151 Oxen forbidden to be eaten to be spared in War page 514 P. PApinianus put to death for not defending Parricide page 428 Parents to be nourished 123. though severe to be obeyed 57. to be reverenced as Gods Pref. vii honour and obedience due to them 123. differing in their Commands whether to obey 103. their Right to sell or pawn their Children what 104. their Right over their Children different according to their several Ages and Conditions 103 104 their Estates due to their Children by a twofold right 124. whether they owe any part of their goods to their Children by the Law of Nature 122. their love to their Children more natural than their Childrens to them 123. their power to punish as well as to govern their Children 104. never exheredate their Children until they prove incorrigible 416 417. Their Marriage with their Children unnatural page 107 Parliaments to what end called page 42 A Parly demanded and accepted renders both sides secure 569. during each may promote his own interest so that he hurt not the other ibid. under pretence of a Parly Bituitus was treacherously taken Captive by the Romans ibid. Parricides page 28 Particulars if they consent not not punishable for the whole page 399 Partition just where the Title is dubious and neither possest page 414 Passage denied may be by Armes forced page 83 Passage by Land or Sea common to all ibid. how Armies may pass safely without danger page 84 Passionate acts more pardonable than deliberate page 380 Pater Patratus what page 546 Patience commended by Christ's example 63. preferred before revenge 33. in bearing reproaches 21 22 23. in a Governour or in a State punishable page 393 Patrimony distinguisht from the profit of it page 120 Paul refused not a Guard of Souldiers page 20 Parents that receiveth to what bound page 160 Peace profitable to the Victor Vanquished and those of equal Power 572. once obtained to be religiously kept 571. its Articles how to be understood 546 547. all of them to be equally observed 549 572. when said to be broken 548. to be embraced though with loss 572. not to be patcht up but firmly made 547. being made all publick injuries though then unknown presumed to be remitted 547. to purchase from an Enemy too Potent no dishonour page 418 For Peace whether the Goods of the Crown be alienable 544. or the Goods of Subjects 545. the Empire or any part thereof ibid. Peace by whom it may be made 544. being made by
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