about those things which lead thither The end is ever sâ—…e Good or at least the Avoidance of some evil which may be in the stead of good The things that lead to the one or other are not desired by themselves but as they lead thither Wherefore in Debates are to be compared both the ends among themselves and the effective faculty of those things that lead to the end to produce the same For as Aristotle hath rightly noted 〈◊〉 which bring forth action are of two sorts from that which is good and from that which is possible Which comparison hath three Rules The first is If the thing under debate seemeth to have in a moral estimation equal efficacy to Good and to Evil it is so to be chosen if the Good hath somewhat more of good than the Evil hath of evil Whence Andronicus Rhodius where he describes the magnanimous man saith He will undergo dangers not for every cause but for the greatest Another Rule is If the Good and Evil seem equal which may proceed from the thing in question that thing is eligible if the efficacy to Good be greater than to evil The third If both the Good and the Evil seem to be unequal and the efficacy of the things no less unequal that thing will be eligible so that the efficacy to good be greater being compar'd which the efficacy to evil than the Evil it self is being compar'd to the Good This have we set down after a more exact manner But Cicero discourseth to the same purpose in a plainer way when he saith We must take heed we do not offer our selves to perils without cause than which nothing can be more foolish wherefore in running hazards the custome of Physicians is worthy of our imitation They apply gentle remedies to light diseases but in the more grievous are compelld to use more perillous and doubtful Medicines Wherefore he saith it is a wise mans part to take the opportunity and the rather if he may obtain more good by success of the matter than he can fear evil upon the miscarriage In another place Where no great emolument is possible and a little mischance will be hurtfull what need is there to run the hazard Dion Prusaeensis Be it unjust and unworthy which is sufferd Yet must we not therefore in a contentious humour expose our selves to greater incommodities And again We seek to rid our selves of burthens that do sorely pinch us but if they be portable and we fear we shall change them for heavier loads we compose our selves to patience Aristides also Where our fear is greater than our hope have we not great reason to be cautious CXXV An Example of a Debate about Liberty and Peace LEt us take an example from that which Tacitus saith was of old consulted of among the Cities of Gallia Whether they should prefer Liberty or Peace understand Civil Liberty that is a right of governing the Commonwealth by themselves Which right is full in a popular state tempered in an optimacy especially such wherein none of the Citizens is excluded from honours Understand also such a peace whereby is avoided a destructive war that is as Cicero expresses it wherein all is in danger to be lost or where a right estimation of the future seemeth to portend nothing els but even the destruction of the whole people Which was the case of the people of Jerusalem besieged by Titus No man is ignorant what Cato would say here who chose rather to dy than to submit to One to which purpose is that sentence It is none of the hardest vertues to embrace death to avoid slavery and many the like But right reason dictates otherwise to wit That life which is the foundation of all good things temporal and eternal is of more worth than Liberty whether you take both in one man or in a whole people Wherfore God himself imputes it as a benefit that he doth not destroy men but deliver them up to servitude And elswhere he perswadeth the Hebrews by the Prophet to give up themselves to serve the Babylonians that they may not perish by famin and pestilence That then which was praised by the Antients that Saguntum did being besieg'd by the Carthaginian is not to be praised nor the things that lead thither For the internecion of a people in this kind of things is to be accounted as the greatest Evil. Cicero in his second De Inventione setteth down this example of necessity It was necessary the Casilinians shou'd yield themselves to Annibal though that necessity had this adjunct Except they would rather perish with hunger Of the Thebans who lived in the times of Alexander the Macedonian is extant this opinion of Diodorus Siculus Being more valiant than wiâ—…e they brought ruine upon their Country Of that foresaid Cato and Scipio who after the Pharsalick Victory would not submit to Caesar Plutarch passeth his judgment thus They are to be blamed as they that lost many and gallant men in Africa to no purpose That which I have said of liberty I mean of other things desirable if there be a more just or an equal expectation of a greater evil opposite For as Aristides saith well It is the manner to save the ship by casting foâ—… the lading not the passengers CXXVI He that is not much the Stronger ought to remit punishment MOreover in the exacting of punishments it is most observable that war should never be entred into upon that ground against him who hath equal forces For as a Civil Judge must so he that will avenge wicked acts by war must be much stronger than the offender Nor doth prudence only or Love of his people require that One abstein from a perillous war but Justice too that is governing Justice which by the very nature of government obligeth the superiour no less to care for inferiours than the inferiours to obedience Whereto is consequent what is rightly delivered by Divines that a King who for light causes or for to exact punishments not necessary and drawing after them great danger undertaketh a war is bound to his subjects to repair the damages arising thence For though not to the enemies yet to his own people injury is done by him who upon such causes involves them in so great an evil Livy saith War is just to whom it is necessary and their arms are pious who have no hope left them but in arms Ovid thus Let not the soldier armed be But to disarm the Enemie CXXVII War not to be undertaken but upon necessity or upon greatest cause with greatest opportunity THere is then seldom cause of taking arms which either cannot or ought not to be omitted to wit when Laws are as Florus speaks worse than war Seneca bids us venture upon dangers when we fear no less dangers if we sit still or greater so Aristides when it appears our estate will be worse if
the like What wast is just When not to be made THat one may destroy the Goods of another one of these three things is a necessary antecedent either such a necessity which ought to be understood excepted in the first institution of dominion as if one to avoid his danger throw away down the river a third man's sword which a mad man is about to use in which very case yet it is the truer opinion thâ—… there remains an obligation of repairing the loss or some debt proceeding 〈◊〉 inequality to wit that the thing wasted or lost may be reckoned for that debt as receiv'd for otherwise there were 〈◊〉 right or some evil desert whereto 〈◊〉 a punishment is meet or whose meaâ—… the punishment doth not exceed for 〈◊〉 a Divine of sound judgment rightly notes that for cartel driven a way or some houses 〈◊〉 a whole Kingdom should be laid wast is no equity which also Polybius saw who will have punishment in war not run on in infinitum but so far that Offenses may be in fit manner expiated And these causes truly and only within these bounds bring it to pass that there is no injury Notwithstanding unless the cause of Profit perswade it 's folly to hurt another without Good to himself Wise men therefore use to be mov'd by their own Interests The chief is that observed by Onesander Let him be sure to wast the Enemies Countrey to burn and populate for scarcity of money and fruits minishes war as much as plenty encreases it Wherewith agrees that of Proclus 'T is the part of a good General to cut off the enemies provisions on every side Curtius of Danius He supposed by want to overcome his enemy having nothing but what he got by rapine And that population truly is to be born with which doth in short time humble the enemy to a petition for Peace which kind of war Halyattes used upon the Milesians the Thracians upon the Byzantians the Romans upon the Campanians Carpenates Spaniards Ligures Nervians Menapians But if you rightly weigh the matter you shall find such things done more often out of hatred than prudence For most commonly 〈◊〉 happens that either those moving causes cease or other causes move the other way more strongly First 〈◊〉 his will come to pass if we our selves so possess a fruitful thing that it cannot bring any fruit to the enemies Whereunto properly that Law Divine hath respect which will have wild Trees bestowed upon works of war but the fruitful kept for food the cause being added that Trees cannot as Men do rise against us in a battell Which by similitude of reason Philo enlarged also to fruitful fields And Josephus upon the same place saith Trees if they had a voice would cry out that they do unjustly bear the punishments of war being not the causes of war Nor hath that of Pythagoras if I mistake not any other rise in Jamblichus Do not hurt nor cut up any mild and fruit-bearing Tree And Porphyry describing the manners of the Jews extends this Law custom as It hink in terpreting it even to beasts serving for Countrey-work For these also must be spared in war as Moses hath commanded But the Talmud-writings and the Hebrew Interpreters add that this Law is to be stretched to every thing which may perish without cause as if buildings be burnt things to be eaten and drank be corrupted Agreeable to this Law is the prudent moderation of Timotheus the Athenian Captain who as Polyaenus relates sufferd no house to be pull'd down nor fruit-tree to be cut up There is a Law of Plato in his fift De repub That no ground be wasted no house fired Much more will this have place after complete victory Cicero approves not the overthrow of Corinth though the Embassadors of the Romans were shamefully treated there and the same Cicero in another place saith it is a horrible nefarious odious War that is made with walls roofs pillars posts Livy praiseth the lenity of the Romans because having taken Capua they were not furious in firing and ruining the innocent walls and building Agamemnon in Seneca saith He was willing Troy should be conquerd not levell'd Indeed the sacred History tells us that some Cities were by God condemned to destruction and that against the former general Law the trees of the Moabites were commanded to be cut up But that was not done by hostile hatred but in just detestation of their Iniquities which were either publickly known or sentenc'd to such punishment by the Judgment of God himself Secondly That which we have said will also come to pass in a doubtful possession of a Countrey if there be great hope of a speedy victory whose reward will be both the Countrey and the fruit So the Great Alexander as Justin relates kept his soldiers from the population of Asia Bidding them spare their own and not spoil what they came to take possession of So Quintius when Philip spoiled Thessaly with a running Army exhorted his soldiers as Plutareh saith to march as through a Country granted them and now becom their own Craesus perswading Cyrus not to give up Lydia to be pillaged by his men tells him You will not spoil my City not my Goods For they are not mine now They are yours and the plundering soldiers prey upon you Thirdly it will be so if the enemy can have elswhere wherewith to support himself to wit if the Sea or another Country be open to him Archidamus in Thucydides in his oration wherein he dehorteth his Laecedemonius from a war upon the Athonians asketh what hopes they have Do you hope easily to lay wast the Attick fields by your 〈◊〉 Army Suppose you do Yet have they both other Lands under their command Thracia Ionia and the Sea brings them in all things necessary Wherfore in such a case it is best that agriculture also in the very frontiers be secured Which we have lately seen was long done in the Low Countrey Wars on condition of paying Contribution to both sides And that is consentaneous to the old custom of the Indians among whom as Diodorus Siculus saith The Husbandmen are untoucht and as it were sacred yea nigh to the Camps and Troops they do their work without danger He addes They neither burn the Enemies fields nor cut up the trees After No Soldier doth any wrong to any Husbandman but that kind of men labouring for the common good is protected from all injuries And between Cyrus and the Assyrian was an Agreement saith Xenophon That they should have Peace with the Plough-man war with the Soldier So Timotheus let out to Husbandmen the most fruitful part of the land as Polyaenus saith Yea as Aristotle addes he sold the fruits themselves to the enemy and paid his soldiers with the money Which Appian testifies was done in Spain by Viriatus And the very same in the Belgic
old servants at Rome now in most places Clerks which Law yet as all of that kind is to be understood with exception of extreme necessity And so much be spoken generally concerning Adjutors and subjects the specials shall be considered in their proper places The end of the first Part. HVGO GROTIVS OF WARRE AND PEACE II. PART I. What are call'd justifick causes of War LEt us come to the Causes of Wars I mean justifick for there are also other which move under the notion of profitable distinct sometimes from those that move under the notion of just which Polybius accuratly distinguisheth one from the other and both from the Beginnings of war such as the Stagg in the war of Turnus and Aeneas But although the difference 'twixt these is manifest yet the words are wont to be confounded For the causes which we call justifick Liâ—… in the Rhodians speech hath also called Beginnings Certainly ye are the Romans who pretend that your wars are therefore prosperous because they are just nor do ye so much glory in the event of them that you overcome as in the beginnings that you undertake them mâ—… without cause Those justifick causes properly belong to our argument whereto is pertinent that of Coriolanus in Halicarnassâ—…nsis I suppose it ought to be your first care that you take a pious and just cause of war And this of Demosthenes As in houses ships and other buildings the lowest parts ought to be most firm so in actions the causes and foundations must be true and â—…ust To the same purpose is that of Dio Cassius We ought to have greatest regard of justice if this be preseut the war is hopefull if not there is nothing certain to any one though he have successe at first according to his minde And that of Cicero Those wars are unjust which are undertaken without cause who elsewhere reprehends Crassus for passing o'r Euphrates when there was no cause of war Which is no less true of publique than of private wars Hence is that complaint of * Seneca Do we restrain homicides and single slaughters Why doe we not restrain wars and that glorious wickedness of slaughtering Nations Avarice and cruelty know no bounds By the Decrees of Senate and people outrages are done and things piivately forbidden are publiquely commanded Wars I grant undertaken by publick authority have some effects of Law as also Sentences of which here after but they are not therefore the less blamable if there be no cause So that Alexander if without cause he warred upon the Persians and other nations is by the Scythians in Curtius and by Seneca too deservedly call'd a Robber by Lucan a Spoyler and by the Indian wisemen unjust and by a certain pirate was drawn into the society of his crime And likewise Justin relates that two Kings of Thrace were spoyled of their Kingdom by his Father Philip by the fraud and wickedness of a Robber That of Augustin is to the same purpose Take away Justice and what are Kingdomes but great Robberies To such agrees that of Lanctantius Deceived vith the shew of vain glory they colour their wickedness with the name of virtue Just cause of taking Arms can be no other than injury The iniquity of the adverse party brings in just wars saith the same Augustin where by iniquity he means injury So in the form of words used by the Roman Herald I call you to witness that people is unjust and doth not performe what is right II. Three just causes of Wars THere are according to most Authors these three just causes of wars Defense Recovery Revenge In which enumeration unless the word Recovery be taken more largely is omitted the prosecution of that which is due to us which Plato omitted not when he said Wars are waged not onely if one be opprest by force or robbed but also if one by deceived With whom agrees that of Seneca It is a most equal word and conformable to the Law of Nations Render what thou owest And in the Herald's formula it was They have not given nor paid nor done the things they should And in Salust By the law of Nations I demand those things Augustin when he said Just wars are those that revenge insuries tooke the word revenge more generally for to take away as the following words do shew wherein is not an enumeration of parts but an addition of examples So is a nation or common-wealth to be opposed which hath either neglected to avenge what was done wickedly by their men or to render what was injuriously taken Upon this naturall knowledge the Indian King as Diodorus relates accus'd Semiramis that she began a war having received no injury And so do the Romans require of the Senones not to fight against them that had done them no wrong Aristotle saith Men war upon such as have provoked them by injury and Curtius of certain Scythians They were manifestly the most just of all the Barbarians they took not armes unless they were provoked III. War is lawfull in defense of life onely against an assailâ—…nt and in present certain danger THe first cause of just war is Injury not yet done but offer'd either against Body or Goods If the Body be assaulted by present force with perill of life not otherwise avoidable in this case war is lawfull even with the slaying of him that brings the danger as we have said afore when by this instance as moâ—… approved we shewed that some private war may be just T is to be noted this right of defense by it self and primarily springs from hence that nature commends every one unto himself not from the injustice or sin of the other from whom the danger is Wherefore although he be without fault as one that warreth faithfully or thinketh me other than I am or is beside himself or affrighted as to some hath happened hereby is not taken away the right of self-defense it sufficeth that I am not bound to suffer what he offereth no more than if another mans beast did threaten me with the danger Whether also innocent persons who being interposed hinder my defense or flight without which death cannot be escaped may be slain is question'd Some even Divines there are that think it lawfull And surely if we respect nature alone with her the respect of society is much less than the care of proper safety But the law of Charity especially the Evangelicall which equals another to our selves plainly permits it not That saying of Thomas if it be rightly taken is true In a true defense a man is not slain on purpose not that it is not lawfull sometimes if there be no other meanes of safety to do that on purpose whence the death of the assailant wil follow but that in this case that death
mere defence for the most part is considered but publick powers together with defense have also a right of revenging Whence it is that they may lawfully prevent force that is not present but seems impending afar off not directly that we have shewed above to be injust but indirectly by revenging a wrong begun already but not consummate Of which elswhere XIV It is not lawful to take arms to diminish a Neighbor's power THat is in no wise to be allowed which some have deliver'd that by the Law of Nations arms may be rightly taken to abate a growing power which being encreased might be able to do hurt I confess in consultation about war this is wont also to come in not under the respect of just but of profitable that if the war be just upon some other ground upon this it may be judged prudently undertaken Nor do the Authors cited here say any more But that a possibility of suffering force should give a right of offring force this is far from all equity So is the life of man that full security is never in our hand Against uncertain fears we must guard our selves by meditation of divine providence and by harmless caution not by doing violence to our neighbours XV. Defensive war also is unjust on his part who gave just cause of War AS little are we pleasd with this which they teach that also their defense is just who have deserved the war because forsooth few are content to return only so much revenge as they have received injury For that fear of an uncertain thing cannot give a right to use force whence neither hath a person accused of a crime any right to resist by force the publick officers willing to apprehend him for fear lest he may be punisht more than he deserves But he that hath offended another ought first to offer the offended party satisfaction according to the arbitration of an upright man and then afterward his arms will be lawfull So Ezechias when he had not kept the league which his Ancestors had made with the King of Assyria being set upon by a war confesseth the fault and submits himself to a mulct at the Kings pleasure Having done that and being after that again provoked by war encouraged by a good conscience he withstood the enemies force and his cause was supported by the favour of God Pontius Samnis after restitution made to the Romans and the Author of the breach yeelded up we have saith he expiated our fault and pacified the wrath of heaven that was against us for our violation of the league I know full well what Gods soever were pleasd we should be subdued to a necessity of restitution the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach A little after What more do I owe to thee O Roman What to the league what to the Gods the Judges of the league Whom shall I bring unto thee to be judge of thy anger and of my punishment I refuse to people nor private man So when the Thebans had offerd all right to the Lacedemonians and they required more the good cause passed over from these to them saith Aristides XVI The rise and progress of propriety THere follows among the Causes of war Injury done and first against that which is ours A thing is ours either by a common or by a proper right For the better understanding whereof we must know the Rise and beginning of propriety which the Lawyers call dominion God bestowed on mankind in general a right over the things of this inferiour nature presently after the creation and again upon the reparation of the world after the floud All things as Justin speaks were undivided common to all as if all had one patrimony Hence it was that presently every man might take unto his uses what he pleased and spend what might be spent Which use of the universal right was then instead of propriety For what any one had so taken another could not without injury take away from him This may be understood by that similitude which is in Cicero A theater is common yet the place possessed by any one may be rightly call'd his own Nor was it impossible for that state to have continued if either men had persisted in a certain great simplicity or had liv'd together in a certain mutual excellent charity One of these to wit Communion by reason of an exceeding simplicity may be observed in some people of America who through many Ages without any incommodity have persisted in that custome The other to wit communion of Charity the Essens practised of old and then the Christians who were first at Hierusalem and now also not a few that lead an ascetick life The simplicity wherein the first parents of mandkind were created was demonstrated by their nakedness There was in them rather an ignorance of vice than the knowledge of vertue as Trogus saith of the Scythians The most antient of mortals saith Tacitus lived without any evill lust without dishonesty and witkedness and so without punishment and coercion And in Macrobius First there was amongst men simplicity ignorant of evil and as yet void of craft This simplicity seemes to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the Hebrew wise man by the Apostle Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he opposeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to craftiness Their only busines was the worship of God whereof the Symbole was the tree of life as the antient Hebrews do expound and the Apocalyps assenteth And they lived easily of those things which the earth of her own accord brought forth without labour But in this simple and innocent way of life Men persisted not but applyed their minds to various arts whereof the Symbole was the tree of the knowledge of good and evill that is of those things which may be used both well and ill In regard of this Solomon saith God created man right that is simple but they have found out many inventions Dion Prusaeensis in his 6. Oration To the posterity of the first men their crafâ—…iness and various inventions were not very conducible for they used their wit not so much for valour and justice as for pleasure The most antient Arts Agriculture and Pasture appeared in the first Brothers not without some distribution of estates From the diversity of their courses arose emulation and then slaughter and at length when the good were infected by the conversation of the bad a gigantick kind of life that is violent such as theirs whom the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The world being washed by the floud in stead of that fierce life succeeded the desire of pleasure whereunto wine was subservient and thence arose unlawfull loves But concord was chiefly broken by that
may suffer for the evil deed of their King or Governour We do not mean if the peoples consent be added or any deed of theirs by it self worthy of punishment but we speak of that contract which springeth from the nature of that Body whose Head is the King and members were the rest God indeed for David's sin destroyed the people with pestilence and truly as David thought being innocent but it was God who had most full and absolute right over their lives Mean while the punishment was not the peoples but David's for as a Christian writer saith It is the most bitter punishment to Kings that do amiss to see their people suffer This is all one saith the same Author as if he that hath done ill with the hand should be Beaten on the back So Plutarch in the like argument compares it to a physicians method in curing one part to open a vein in another Why men may not do so we have said afore The same is to be concluded of punishing particulars in things proper to them that have not consented for the offence of the Society And lastly the cause why an Heir being liable to other debts is not liable to the punishment of the deceased is for that the Heir bears the persâ—… of the deceased not in respect of meâ—… which are merely personal but of goods which are engaged Dion Prusaeensis What the Ancestors owed their posterity must pay for they have not refused the Inheritance CV OF UNJUST CAUSES Causes of War some are justifick others suasory POlybius who first noted the difference calls the former 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pretences because they are wont openly to be shewed Livy several times useth the word Title the later he stileth by the general name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes So in the war of Alexander against Darius the Pretence was Revenge of Injuries which the Persians had done the Grecians the Cause was desire of Glory Empire and Riches whereto was added great Hope of facility conceived from the expeditions of Xenophon and Agesilaus So the pretence of the second Punick war was the Controversy about Saguntum the cause was the indignation of the Carthaginians for the Agreements which the Romans in unequal times had extorted from them and their courage raised by the prosperity of their affairs in Spain noted by Polybius Likewise Thucydides judgeth the true cause of the Peloponnesian war to have been the Athenians growing Greatness which brought them into suspicion with the Lacedemonians but the pretence was the controversy of the Corcyreans Polideans and other things where yet be promiscuously useth the termes pretence and cause There is the same difference in the Oration of the Campanians to the Romans when they say they fought against the Samnites in word for the Sidicines in deed for themselves because they perceived when the Sidicines were consumed the fire would pass on to them And Livy relateth how Antiochus took arms against the Romans in shew for the death of Barcilla and some other matters is truth because he had great hope of success by reason of the decayed disciplin of the Romans So Plutarch observeth it was not truly objected to Antony by Cicero that He was the cause of the Civil war when Caesar resolved upon a war had only taken the pretext from Antony CVI. Wars without any cause are wild and brutish SOme upon neither of these causes are carried into wars greedy of dangers as Tacitus speaks for dangers sake The faults of these men exceed every human name and is by Aristotle termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serity Of these Seneca I may say it is not cruelty but ferity which takes pleasure in blood we may call it madness whereof there be sundry sorts and none more evident than that which runneth to the slaughter of men and cutting them to pieces To which sentence very like are those words of Aristotle Very cruel indeed is he to be accounted who makes his friends his enemies out of greediness to fight and shed blood Dion Prusaeensis Without cause to be carried into wars and fights is meer madness that seeks mischief to it self And the forecited Seneca saith No man is so inhuman as to wast human blood or very few CVII Against wars which have not justisick causes or not truly such BUt the greatest part of those that go to war have suasory causes and those either without justifick causes or with them Some care not at all for justisick causes of whom that may be said which is in the Roman Lawyers He is a Robber who being asked of the cause of possessing brings no other but that he doth possess Aristotle of those that perswade to war Men that oftentimes regard not at all whether it be just or no to subdue their harmless neighbours Such a one was Brennus who said Let the strongest take all Such a one was Annibal in Silius Whose right was his sword Such also was Attila and such are all that use these words No matter how the war begins If we can bring it to our ends To these men you may fitly apply that of Augustin To wage war against the neerest and thence march on to others and out of a desire of rule to conquer Nationâ—… that provoke you not what is it to be named but Great Robbery In Cicero we read The height of mind which is discoverd in dangers and labours if it want justice is so far from vertue that 't is rather immanity and an enemy to all humanity Andronicus Rhodius Who for to gain much receive whence they ought not these are call'd evil impious and unjust such as are tyrants and the Plunderers of Cities Others do allege causes as it were justifick which being weighed in the scale of right reason are found unjust and it appears as Livy speaks not a contention about right but an offer of violence Many Kings saith Plutarch use the two names of Peace and war not to that which is just but to that which is expedient CVIII Fear of an uncertain danger no just cause of war AMong the unjust causes of war is fear taken from neighboring power Which fear we have said above is not sufficient For that Defense may be just it ought to be necessary it is not so unless we be sure not only of the power of a neighbour but of his will sure by that certainty which hath place in matter of morality Wherefore their opinion is not to be allowd who make it a just cause of war if a neighbour hindred by no agreement build a Castle on his own ground or some other fortification which may sometime do us hurt For against such fears contrary fortifications in our land and the like remedies not warly forces are to be provided Unjust therefore were the wars of the Romans upon Philip of Macedonia of Lysimachus upon Dèmetrius unless
it was meet that the matter should be ended on this wise 'twixt him and Turnus Certainly among other customs of the ancient Franks this is at large commended by Agathâ—… in his first book whose words are worthy to be added If any Contraversies happen to arise between the Kings they all muster their force's as it were to determine the matter by battell and they march forth into the field But so soon as the Armies have faced each other they lay aside anger and embrace concord perswading their Kings to put their differences to triall of Law or if they will not do that to enter into single combat and bring the matter to an end only with their own danger Because it is neither agreeable to equity nor the orders of their Countrey that they for their proper hatreds should weaken or overthrow the common good Wherefore presently they disband and the causes of their quarels being taken away peace is reestablished and muital security assured So great care of Justice and love of their Country is in the Subjects so gentle and yielding a disposition is in the Kings Now although in a doubtfull case both parts are bound to seek condition whereby war may be avoided yet is he more bound who requireth than he who possesseth For that in an equal case the condition of the possessor is the better is a point not only of the Civil but of the Natural Law And here is further to be noted that War cannot lawfully be undertaken by him who knoweth he hath a just cause but hath not sufficient proofs whereby he may convince the possessor of the injustice of his possession The reason is because he had no right to compell the other to depaâ—… out of his possession And lastly when both the right is ambiguous and neither possesseth or Both equally there he is to be thought unjust who rejecteth the offered division of the thing in conâ—…versy CXIX Whether war may be just on both sides OUt of the premises may be determined that Question agitated by many whether War respect being had of them that are the principal Movers of it may on both sides be just For the various acceptions of the word just are to be distinguished A thing is called just either from the cause or according to the effects From the cause again either in a special acception of justice or in that general use of the word as all rectitude is so called The special acception is agaiâ—… divided into that which perteineth to the work and that which perteineth to the worker For the worker himself sometime may be said to do justly as oft as he doth not unjustly though that which he doth be not just So Aristotle rightly distinguisheth to do unjustly and to do the which is unjust War cannot be on both sides just in the acception special and related to the thing it self as a sute in Law neither because a moral facultie to contraries to wit both to act and to hinder is not granted by nature But that neither of the parties warring may do unjustly is possible for no man doth unjustly but he that also knows he doth an unjust thing and many are ignorant of that So may a sute be followed justly that is with an honest mind on both sides For many things both in point of right and fact whence right ariseth are wont to escape men In a general acception just is wont to be called that which is without all fault of the Doer And many things without right are done without fault through ignorance inevitable An example whereof is in them who observe not the Law which without their fault they are ignorant of after the law it self is promulged and time sufficient by it self for knowledge hath passed So also in Law-sutes it may happen that both parties may be free from injustice and all other blame especially where both parties or either goeth to law not in his own but anothers name to wit by the office of a Tutor or Guardian whose duty is not to desert any right though uncertain So Aristotle saith in contentions of controverted right neither is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wicked With whom Quintilian agrees when he saith it may come to pass that an Orator that is a Good man may plead on both sides Yea Aristotle also saith a Judgâ—… may be said to judge justly two wayes â—…ther when he judgeth plainly as he ougâ—… or when he judgeth according to 〈◊〉 judgment conscience And in anotheâ—… place If one hath judged through igâ—…rance he hath not done unjustly Nevertheless in war it can hardly fall out be there will be at least some temerity and defect of love by reason of the weight of this business which in very deed is sâ—… great that not content with probabâ—… causes it requireth grounds most evidenâ—… But if we take just according to some effects of right it is certain war on bâ—… sides may be just in this sense as will appear by what we shall say of publick â—…lemn war in the next part And in like manner a Sentence not given according to right and Possession without right have some effects of right CXX ADMONITIONS For the eschewing of War Right is often to be remitted THough it seemeth not properly a paâ—… of our work our Title being of thâ—… Right of war to declare what other vertues give in charge concerning it neveâ—…theless on the By we must meet 〈◊〉 this errour of such as think where 〈◊〉 Right is manifest enough war presenâ—…y either must or alwayes may lawfully be undertaken For the contrary is true that for the most part it is more pious and honest to depart from ones right That we may honestly forsake the care even of our own life that we may provide as much as lies in us for the eternal life and salvation of another hath been shewed afore Which is especially the duty of Christians therein imitating the most perfect example of Christ who dyed for us while we were his enemies This doth much more excite us not to pursue our worldly interests with so much hurt of other men as Wars do carry with them That for every such cause war is not to be waged even Aristotle and Polybius do advise Nor was Hercules commended by the Antiens for commencing war against Laomedon and Augias because they paid him not for his labour Dion Prusaeensis in that Oration which is of War and Peace saith it is not only enquir'd whether They against whom we intend war have done us injury but whether the injury be of such moment that it may deserve a war CXXI Punitive right especially is to be remitted TO omit punishments many things do exhort us Consider how many faults Fathers connive at in their Children Whereof Cicero hath a dissertation in Dion Cassius A Father saith Seâ—…ca except many and great offenses have overcome his patience except he hath more to
Lastly the Law of Christ hath taken away the Law of Moses only which was the partitioâ—… wall between the Gentiles and the Hâ—… brews Things by nature honest and by the consent of civil nations it is so far from taking away that it hath comprehended them all under the generâ—… precept of all honesty and virtue But the punishment of crimes and Arms to keep off injury are accounted laudable in their Nature and are referred to the virtue of justice and beneficence And here on the by we must note their error who draw the Israelites right to War from this alone that God had granted to them the Canaanites Land For this is not the only cause though it be 〈◊〉 just one Before those times men of piety conducted by their reason waged Wars and the Israelites themselves afterward upon other grounds as David for the violation of his Embassadors Besides what any one possesseth by humane right is no less his own than if God had made an immediate grant thereof which right is not taken away but confirmed by the Gospel XXI Objections answered The first LEt us now also see by what Arguments the opposite opinion underprops it self that the pious Reader may more easily judge which of the two is more firm and weighty The first is usually brought out of Esay's prophecy who saith it shall come to pass that the Nations shall beat their swords into plow-shares and their spears into pruning-hooks Nation shall not lift up sword against Nation neither shall they learn War any more But this prophecy either is to be understood as many other conditionally Such shall be the state of things if all people undertake and fulfil the Law of Christ to which purpose God will suffer nothing to be wanting on his part Sure enough it is if all be Christians and live Christianly there will be no Wars Or it is to be understood simply and purely and thus experience tells us this prophecy is not yet fulfill'd but the impletion thereof as also of the general conversion of the Jews is yet to be waited for Which way soever you take it nothing can be inferred hence against the justice of Wars so long as there are who suffer not the lovers of peace to live at peace but offer violence and use force against them XXII The second Objection answered OUt of the fift of Matthew sundâ—… Arguments are deduced which we cannot rightly judge of unless 〈◊〉 remember what was said afore If Christ had purposed to take away all capital judgements and the right of Wars he would have done it in words most express and special by reason of the greatness and newness of the matter and the rather because no Jew could think otherwise but that the Laws of Moses pertaining to judgements and the Common-wealth ought to have their force upon the men of that Nation so long as their state endured This being premised let us weigh the places in their order The second muniment of the adverse party is from these words Ye have heard that it hath been said An eye for an eye and a tooth for a tooth But I say unto you that ye resist not the injurious person so the Gr. turns the original word Exod. 21 But whosoever shall smite thee on the right cheek turn to him the other also Hence do some infer that no injury is to be repelled or revenged neither privately nor publikely But this is not the meaning of the words for Christ speaks not here to Magistrates but to those that are injured nor doth he speak of every injury but of such as a blow on the cheek the following words restrain the generality of the precedent So likewise in the next immediate precept If any man will sue thee at the Law and take away thy coat let him have thy cloak also Not every sute before the judge or arbitrator is forbidden let Paul be the Interpreter who denies not all sutes but prohibites the Christians to contend in the Courts of Heathens and that after the Jews example whose common saying it was Whosoever brings the affairs of Israel before the stranger pollutes the name of God but the will of Christ is to exercise our patience that we should not go to Law about things which may easily be repaired as a Coat or if it so happen the cloak also but that although our cause be good wee should omit the prosecution of our right Apollonius Tyaneus said It was not the part of a Philosopher to contend about a little money The Praetor saith Ulpian approoves his doing who would content himself and sit down with the less of a thing rather than be troubled with often sutes about it For this mans disposition that cannot endure contention is in no wise to be dispraised What Ulpian here saith is approved by the best the same doth Christ command choosing the matter of his precepts from among the things that are most honest and mâ—… approved But you may not colleâ—… hence that it is unlawfull for a Parenâ—… or for a Tutor to defend that before 〈◊〉 Judge without which the Children without which the pupils cannot to maintained For the coat and cloak is one thing the Lively-hood another In Clement's Constitutions it is said of a Christian man if he hath a sute let him endeavour to end it though he bear some damage As in matters of morality so here we say these things do not consist in a point but have a certain latitude belonging to them So in that which follows And whosoever shall compell thee to go a mile go with him twain Our Lord said not a hundred mile a journey that would take a man off too far from his own occasions but one mile or if need be twain a walk not very irksom The sense therefore is in these things which import no great incommodity we must not stand upon our own right but yield even more than another would require that our patience and our benignity may be known unto all men It follows Give to him that asketh thee and from him that would borrow of thee turn not thou away If you carry it on infinitely and without measure nothing is more hard He that provideth not for those of his own house is worse than an infidel saith Paul Let us then follow the same Paul the best interpreter of his Master's Law who stirring up the Corinthians to exercise beneficence toward the poor of Jerusalem Not saith he that other men be eased and you burthened but by an equality that your abundince may be a supply for their want which sense is also in Xenophon's Cyrus What I shall see superfluous in my own estate will serve the necessities of my friends The like equity must we use for the interpretation of that precept now in hand The Hebrew Law as it did indulge a liberty of divorce to prevent the cruelty of Husbands toward
shamefull to human nature Hence it is that the office of burying is said to be performed not so much to the person as the nature Non tam homini quam humanitati whence Seneca and Quintilian called it publick humanity Petronius tralatitious Whereunto this is Consequent that Burial must not be envyed neither to our own nor our Countreyes enemies Of private enemies excellent is that dissertation of Ulysses in Sophocles for the burial of Ajax where we have this among the rest to Menelaus After so many wise words said Beware you do not wrong the dead Euripides gives the reason in his Antigone Mens quarels dy with their last breath For what revenge is after death And Optatus Milevitanus renders the same cause If you had any difference living let the other's death kill your hatred He is now silent with whom you quarrell'd LXXV Burial is also due to publick enemies WHerefore also to publick enemies all men think Burial to be due Enemies do not envy burial saith Tacitus and Dio Chrysostomus having said this is a Law observ'd among enemies in war addeth although their hate hath proceeded to the highest degree Sopater above cited What war hath deprived mankind of this last honour What enmity hath so far extended the memory of evil deeds as to dare violate this Law Dio Chrysostom cited a little afore in his Oration of Law By this no man judgeth dead men enemies nor is anger and disgrace extended to their bodyes And examples are every where extant So Hercules sought his enemies Alexander those slain at Issus Hannibal sought C. Flaminius P. Aemilius Tib. Gracchus Marcellus Romans to bury them The same was done by the Romans for Hanno for Mithridates by Pompey by Demetrius for many for King Archelaus by Antonius It was in the oath of the Greeks warring against the Persians I will bury all my fellows being victorious I will bury the Barbarians too and frequently in histories you may read of leave obtained to carry off the dead We have an example in Pausanias The Athenians say they had buried the Medes because it was their Religion to Interr all the dead whatsoever they were Wherefore by the interpretation of the antient Hebrews the High Priest when otherwise he was forbidden to be present at any funeral was commanded nevertheless to put into the earth a man found unburied But Christians so much esteemed sepulture that for this as well as to feed the poor or to redeem captives they thought even the consecrated Vessels of the Church might be lawfully coined or sold. There are indeed examples also to the contrary but condemned by common judgment LXXVI Whether Burial be due to notorious malefactors COncerning these I see there are causes of doubting The divino Law given to the Hebrews the mistress as of every vertue so of humanity too commands that they which were hanged on a tree which was esteemed very ignominious should be buried the same day Hence Josephus saith The Jews have such care of sepulture that they take down the bodies condemned to publick execution before Sun-set and commit them to the earth and other Hebrew interpreters adde This reverence was given to the divine image after which man was made Aegisthus who had seconded his adultery with the murder of the King was buried by Orestes the son of the murdered King as Homer relates And among the Romans Ulpian saith the bodies of them that are condemnd to dy are not to be denyed their kindred yea Paulus his opinion is they are to be granted to any whoever they be that ask them And Dioclesian and Maximian Emperours answered thus We do not sorbid that offenders after execution worthy of their crimes be deliverd to the grave Indeed we read in histories examples of them that have been cast out unburied more frequent in Civil than Forein wars and at this day we see the bodies of some condemned persons to be left a long time in publick view which manner yet whether it be commendable is disputed not by Politicks only but Divines On the contrary we find they are praysed who gave burial to the bodies of such as had not permitted the same to others namely Pausantas King of the Lacedemonians who being provoked by the Aeginetae to revenge the deed of the Persians upon Leonides with the like deed rejected the advice as unworthy of the Graecian name And the Pharisees buried Alexander Jannaeus who had been very contumelious against his dead Countreymen But if God sometimes hath punished some with the loss of burial he hath done this above the constituted Laws and that David kept the head of Goliah to be shewed was done against an Alien a Contemner of God and under that Law which extended the name of Neighbour to the Hebrews only LXXVI Whether it be due to those that have kill'd themselves to the sacrilegious and traiterous IT is here worthy to be noted concerning burial of the dead that the rule among the Hebrews themselves had an exception of them that had layd violent hands upom themselues as Josephus tells us Nor is it any wonder when no other punishment can be appointed them that esteem not death for a punishment So the Milesian maids were frighted from voluntary death and likewise the Plebs of Rome sometime though Pliny approve it not So the body of Cleomenes who had slain himself Ptolomy commanded to be hang'd up And saith Aristotle it is commonly receiv'd that some disgrace be done to them who have been the Authors of their own death which Andronicus Rhodius expounding saith their bodyes were forbidden to be buried And this among other Decrees of Demonassa Queen of Cyprus is commended by Dion Chrysostomus Nor is that any great objection against this custome that Homer Aeschylus Sophocles Moschio and others say That the dead feel nothing and therefore can neither be affected with loss nor shame For it is sufficient that that which is inflicted on the dead be feared by the living and they by this means be deterd from sin Excellently do the Platonists maintain against the Stoicks and whoever els admit the avoiding of servitude and diseases yea and the hope of glory for a just cause of voluntary death That the soul is to be retained in the custody of the body and that we must not depart out of this life without his command who gave it to us To which point much may be seen in Plotinus Olympiodorus and Macrobius upon Scipio's dream Brutus was at first of this judgment and condemned the fact of Cato which afterward he imitated For he thought it neither pious nor manly to yield to fortune and fly away from imminent adversities which are couragiously to be undergone And Megasthenes noted the fact of Calanus to be reprehended by the Indian wise-men whose doctrines did not suite with such an end of men impatient
there were some other cause I am very much pleased with that in Tacitus of the Cauchi A people among the Germans most noble who maintain their Greatness by their Justice without covttousness without impotency quiet and secret They never provoke their neighbors to war never make inrodes upon others â—…r depopulations And this is a principal argument of their valour and might that they attain not their superiority by being injurious yet are they all ready for war and if need be they have an Army present Great store of Foot and Horse and famous even in times of peace CIX Of some other unjust causes NEither doth Utility make equal right with necessity So where other wives enow are to be had the denyall of some Match cannot give cause of war which yet Hercules took against Euritus Darius against the Scythians Nor is the Desire of a people to change their seat a just cause of war that leaving moorish desert Land they may possesse a more fruitfull soil which was the case of the old Germans as Tacitus relates No less unjust it is to challenge by the title of a new found Land what is held by another though he that holds it be wicked think amiss of God or be of a dull wit For Invention is of those things that belong to none neither is moral virtue or religious or perfection of understanding required to dominion This indeed seemeth probable if there be any people altogether destitute of the use of reason such have no dominion but out of charity only is due unto them what is necessary for life For what is said of the support of Dominion in behalf of infants and mad-men by the Law of Nations pertains to those nations with whom there is commerce of Covenants Such are not they that are wholly mad if there be any such of which I do justly doubt Unjustly therefore did the Grecians call the Barbarians enemies to themselves as it were naturally by reason of their diversity of manners and haply because they seem'd inferiour in wit Yet for some grievous sins and such as oppugn naturè and human society we deny not but dominion may be taken away Moreover Liberty whether of single persons or of Commonwealths as if it did naturally and always agree to all cannot yield a right to war For when liberty is said to agree by nature to a man or people that is to be understood of the right of Nature preceding all human fact in this sense that one is not a servant by nature not that he hath a right never to become a servant for in this sense no man is free Here is pertinent that of Albutius No man is born free no man is born a servant these names were impos'd afterward upon every one by fortune And that of Aristotle It is the effect of Law that one is free another serveâ—… Wherefore they that upon lawful cause are come into servitude whether personal or civil ought to be content with their condition as also Paul the Apostle teacheth Art thou call'd to servitude Let it not vex thee Farther it is unjust to subdue by arms any as if they were worthy to serve whom Philosophers sometimes call naturally servants For suppose a thing be profitable for one it doth not therefore presently follow that 't is lawfull for me to force it on him For they that have the use of reason ought to have a free election of things profitable and unprofitable unless another have gotten some right over them The case of Infants is quite otherwise whose government seeing they have not power to moderate their own actions nature committeth to the occupant or some fit person CX Of the Title of universal Emperour I Would scarce adde that it is an unwise title which some attribute to the Roman Emperour as if he had a right of commanding over nations most remote and hitherto unknown unless Bartolus long accounted the Prince of Lawyers had ventured to pronounce him an heretick that denyes it forsooth because the Emperour sometime stiles himself Lord of the world and because in Scripture that Empire which later Writers call Romania is call'd by name of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So is that of the Poet The Roman Conquerour held all the world and many like sayings spoken by way of excess or excellence And in the same Holy Scripture Judaea alone comes oft under the title of the world in which sense is to be taken that old saying of the Jews that the City of Jerusalem is seated in the midst of the earth i. e. of Judea as in the midst of Graecia Delphi likewise call'd the navil of the world Nor ought any one be mov'd with Dante 's arguments whereby he endeavours to prove the Emperour hath such a right because it is expedient for mankind For the commodities hereof are equalld with incommodities And as a ship may be made of such a greatness which cannot be governd so may the number of men and distance of places be so great that it cannot admit the government of one But grant it is expedient there follows not a right of Empire which ariseth not but but either from consent or punishment Nay the Roman Emperour now hath not right over all that of old perteined to the people of Rome For many things as gotten by war so were lost by war some by covenant and some by dereliction passed into the right of other nations or Kings Again some Cities fully subdued once afterward became subject only in part of only confederate unequally All these ways either of losing or changing right are or force no less against the Roman Emperour than any other CXI Of the Empire of the Church THere have been also who would assert the Church hath right over the Nations of the hitherto unknown part of the earth when yet the Apostle Paul himself hath openly pronounced He had no power to judge those that are without And whatsoever right of judging belonged to the Apostles though it pertained also in its way to earthly things yet was it of a heavenly that I may so speak not of an earthly quality to be exercised not by the sword and scourge but by the Word of God generally proposed and applied to peculiar circumstances by the exhibition of the seals of divine grace or the denyal of them as it was for the good of every one and lastly by vengeance not natural but above nature and therfore proceeding from God such as appeared in Ananias Elymas Hymenaeus â—…nd others Christ himself the spring of â—…ll Ecclesiastical power and whose life is â—…he exemplar proposed to the Church as â—…uch said his Kingdom was not of this world that is not of such a nature as oâ—…her Kingdomes adding otherwise after the manner of other Kings he would use the service of soldiers But now although he had desired Legions he would
shapes this Answer To Infidels who would have us go to war for the Commonwealth and kill men we will answer thus They that are Priests of your Idols and Flamens of your reputed Gods keep this hands pure for sacrifices that they may offer them to your supposed Gods with hands unbloody and defiled with no slaughter nor are your Priests listed soldiers in any war Now if that be not without reason how much more than other soldiers are our men in their way to be accounted militant as the Priests and worshippers of the true God who indeed keep their hands pure but strive with Godly prayers on behalf of those that fight in just Commander and of him that is the just Commando In which place he stileth all Christiars Priests after the example of the holy writers Apoc. 1. 6. 1 Pet. 2. 5. CXXXVIII When the arms of Subjects are just in an unjust War ANd I am of opinion it is possible that in a war not only doubtfâ—… but manifestly unjust there may be some defense just on the subjects part For seeing an Enemy through waging a jâ—… war hath not true and internal right except for necessary defense or byconsequence and beyond his purpose to kill subjects innocent and far remote from all blame of the war and such are not obnoxious to punishment it followeth that if it certainly appear the enemy comes with such a mind that he will 〈◊〉 no wise though he be able spare the life of his enemies subjects it followeth I say that these subjects may stand in their own defense by the right of Nature whereof they are not deprived by the law of Nations Neither shall we say upon this that the war is just on both sides for our question now is not concerning the War but concerning a particular and determinate action which action though of one otherwise having right to war is unjust and therefore is justly repelled The End of the Second Part. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 HVGO GROTIVS OF WARRE AND PEACE III. PART I. How much is lawful in War General Cap. 1. Rules First Things are lawful in War which are necessary to the end Who may wage war and for what causes we have seen It follows that we weigh what and how much is lawful in war and in what manner Which is either nakedly considered or upon promise antecedent Nakedly First by the Law of Nature Secondly by that of Nations What is by nature lawfull let us consider thus First as we have said afore the things that lead to any end in moral matter receive 〈◊〉 intrinsic estimation from the end it 〈◊〉 wherefore we are understood to have a right to those things which are necessary to the end of Right to be attained necessary I mean by a necessity taken nâ—… according to Physical subtilty but moâ—…ly and right I mean that which is strictly so called and signifies a faculty of Dâ—…ing in sole respect of Society Whereâ—… if I cannot otherwise save my life it is lawful for me by any kind of force to keep off him that assalts it though haply he may be without fault as we have noted elswhere because this right ariseth not properly from anothers sin but from the right which nature granteth me in my own Defense And further I may invade that which is another man's without consideration of any fault of his if any certain danger be imminent to me from that thing Yet may I not become Lord thereof for this is not accommodate to that end but keep it until I may be secured which hath been also said above So I have naturally a right to take away from another that thing of mine which he â—…eceineth and if I cannot the same something equivalent as also to obtain 〈◊〉 debt Upon which causes Dominion â—…ollows too because equality impair'd â—…annot be repair'd otherwise So where â—…unition is just just also is all force without which it cannot be exercised and â—…ust is every thing which is a part of punishment as the wast made by fire or other way being within fit measure and such as is answerable to the fault II. The second Rule Right is consider'd not only in respect of the first but after-causes SEcondly we must know that our right is not to be consider'd onely by the beginning of the war but by causes arising after as also in Trials of Law after the sute commenced a new right oft ariseth to a party So they that gather to my Assailant whether Associats or Subâ—…ects yield me a right of defending my self against them also So they that mixe themselves in a war which is unjust especially if they may and ought to know it to be unjust oblige themselves to repair the charge and damage because by their fault they do it So whosoever engage in a war undertaken without probable ground do also make themselves obnoxious to punishment by reason of the iujustice 〈◊〉 herent in their act And thus Plato 〈◊〉 proves of war until they that are 〈◊〉 be compeld to make satisfaction to the â—…nocent whom they have wronged III. The third Rule Some things follow without injury which could not be lawfully intended THirdly we must observe Many things follow upon the righr of Doing indirectly and without the purpose of the Doer to which there was no right directly and by itself How this hath place in self-defence we have explained elswhere In like manner that we may recover 〈◊〉 own if just so much cannot be taken we have a right to take more yet under this obligation of restoring the price of that which redounds So may a ship fill'd with Pirats or a house with Theeves be bâ—…tered with guns though in the same ship or house are a few Infants women or other innocent persons thereby endangered But as we have noted often that is not perfectly lawful always which agreeth with right strictly taken For oâ—…times Charity to our neighbour will not permit us to use strict and extreme right Wherefore those things which happen beside our purpose and are foreseen that they may happen must also be within our Caution unless the good to which our action tendeth be much greater than the evil which is feared or unâ—…ess when the good and evil are equal â—…he hope of good be much greater than the fear of evil which is left to be determined by Prudence yet so that always in 〈◊〉 doubful case we must incline to that â—…art as the safer which provides for Another more than for our selves Suffer the â—…ares to grow saith the best Master lest while you would pluck them up you pluck â—…p the wheat too And Seneca saith It 〈◊〉 the power of Fire and Ruine to kill maâ—…y without making difference Histories teach us with what serious repentance Theodosius by Ambrose's direction expiated such immodesty of revenge Neither is it to be drawn by us into example â—…f God at any time doth such a thing by
of theirs he would pay them the just price Which conditions when they were refused he waged a just war upon that score against the Amorite For harmless passage was denyed saith Austin which by the most equal right of humane society should be open The Graecians that were with Clearchus We will go home if no man trouble us if any one do us wrong by the Gods help we will endeavour to keep it off Not much unlike is that saying of Agesilaus when returning out of Asia he was come to Troas he asked whether they would have him pass as a friend or as an enemy And Lysander asked the Boeotions whether they would have him pass with spears charged or inclined The Batavians in Tacitus declare to the Bonnenses If none opposed them they would march quietly if they met with force they would cut their way with the sword Cimon going to aide the Lacedemonians led his army through the territory of Corinth being reprehended by the Corinthians for not asking leave of the City for even he that knocks at anothers door enters not without the permission of the Masters answerd But you did not knock at the doors of the Cleonaei and Megarenses but broke them open thinking that all things ought to give place to the stronger The truth is in the middle sentence that passage is first to be requested and if it be denyed it may be forced So Agesilaus returning out of Asia when he had required passage of the Macedoniaâ—… King and he had answered that he would consult Let him consult saith he We iâ—… the mean time will march on Nor may any rightly except and say he fears the multitude of those that pass For my right is not taken away by thy fear and so much the less because there are ways of security as if the army pass in divided companies if unarmed which they of Agrippina said to the Germans and Strabo notes that custome antiently observed in the Countrey of the Eleans if at the charge of him that passeth he that grants the pass provide himself sufficient Guards if Hostages be given which Seleucus demanded of Demetrius that he might suffer him to quarter within the bounds of his Empire So also fear of him against whom he that passeth makes a just war is no sufficient reason to deny passage Nor is it more to be admitted if you say he may passsome way els for any one may say as much and by that means the right of passing world come to nothing but it is enough if without deceit passage be demanded where it is next and most commodious Indeed if he makes unjust war who would pass if he lead my enemies with him I may deny him passage and more than so I may meet him on his own ground and lawfully hinder his expedition XXIV Of passage for Merchandise and of Impost NOr is passage onely due to persons but to Merchandise also for no man hath right to obstruct the way of Commerce to any Nation with any other that is remote because the permission of Trade is for the interest of human society and is not discommodious to any one For although some hoped gain but not due departs from any that is not to be reputed as a loss Philo speaks to our purpose On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of natural society while they supply one another mutually with that which the one wanteth and the other can spare For envy hath never invaded either the whole world or the great parts thereof Another testimony we have from Plutarch speaking thus of the Sea This element hath made our life sociable and perfect that would otherwise be wild and without correspondence it supplies our wants with mutuall aide and by exchange of things needful procures fellowship and friendship Wherewith agrees that of Libanius God hath not granted all things to every land but hath distributed his gifts to several Countrys that men having need of one another might maintain society for their common good Therefore hath he made the Merchant to convey to all what any place affords Euripides also brings in Theseus accounting Navigation among the Inventions which human reason hath found out for the general benefit thus What nature any land deny'd By Navigation is supply'd But it is a question whether Tribute may be imposd by him that rules the Land upon merchandise passing by Land or by river or by part of the Sea which may be calld an accession of the Land Certainly whatsoever burdens have no relation to the merchandise no equity suffers such to be imposed on the same Neither can Head-money put on the inhabitants to sustein the charge of the Commonwealth be exacted of passengers Nevertheless if either to secure the goods or if among other reasons for this also the publick be charged some Taxe by way of compensation may be layd upon the Commodities so that the measure of the cause be not exceeded For upon this depends the justness of Tributes Toll So Strabo relates that the Corinthians even from the most antient times received Tribute of the Commodities which to avoid the compassing of Malea were carried by land from Sea to Sea So the Romans received a price for the passage of the Rhene and the Lawyers books are ful of the like But oft-times an equal measure is not kept whereof the Arabian Phylarchs are accus'd by Strabo adding It is a hard matter amongst powerful and fieroe people to compound upon termes not grievous to the Merchant XXV The right of staying for a time of inhabiting of having desert places TO stay sometime for health sake or for any other just cause ought also to be permitted passengers For this too is among the innoxious utilities Wherefore Ilioneus in Virgil when the Trojans were prohibited to stay on the shore of Afric is bold to invoke the Gods as Judges and the complaint of the Megarenses against the Athenians who drave them from their havens against common right was approv'd by the Greeks so that the Lacedemonians esteemed no cause of war more just Consequent hereto is this that is is lawfull to build a Cottage on the shore to shelter them for a season though we grant the shore to be possest by the Inhabitants For what Pomponius said of having the Praetor's decree that it may be lawfull to build on the common shore or in the Sea perteins to buildings that are permanent Moreover perpetuall habitation is not to be denied these foreiners who being expulsed from their own seats seek entertainment abroad on condition they submit to the government in being and to other things needfull for the avoiding of seditions Which equity is well observed by the divine Poet when he brings in Aeneas yielding to Latinus the Militia
and soveraign power And in Halicarnessensis Latinus himself saith the cause of Aeueas was just if compelld by want of roome he came thither It is the part of Barbarians to repell strangers saith Strabo out of Eraâ—…tosthenes nor were the Spartans in this respect commended and in the judgment of Ambrose also they that prohibit strangers to dwell among them are in no wise to be approved The Eolians admitted the Colophonians the Rhodians Phorbas and his Fellows the the Carians the Melians the Lacedemonians the Minyans the Cumeans others that came unto them But of the same Minyans requiring a part of the Empire after they were admitted Herodotus rightly saith They were in urious and did what was not lawfull to do And Valerius Maximus saith They turned a benefit into an injury Lastly if within the territory of a people there be some desert and barren ground that also is to be granted to strangers upon their request yea it is also rightly seised on by them because that ought not to be esteemed occupied which is not cultivated but only as to the Empire which remains entire to the first people To the Trojans were granted by the Latin Aborigines seven hundred Acres of hard and rough Ground as Servius noteth In Dion Prusaeensis we read They do no offence who inhabi and manure a part of the land that he neglected The Ansibarians in Tacitus cry out As the Heaven to the Gods so is the Earth granted to mortals and what is void is publick looking up to the Sun and Stars they did openly as it were enquire of them whether they were pleased in beholding any ground empty and without inhabitants They should rather call forth the sea and overwhelm the spoilers of the Earth But these men did ill apply these generall sayings to that particular business For those lands were not altogether void but served to feed the cattell and heards belonging to the Army which was a just cause for the Romans to deny them And no less justly did the Romans of old ask of the Galli Senones What right they had to require lands from the possessors or to threaten them with War XXVI Of Oaths How great their vertue is even in the opinion of Pagans AMong all people and from all time about promises and contracts very great hath been the vertue of an oath Our Ancestors saith Cicero esteemed no bond of faith stronger than this Hence it hath been always believed that some heavy punishment hangs over the head of perjur'd persous So that posterity also paid for the sins of their forefathers which was not believ'd but of most grievous crimes and even the will without the deed drew punishment upon it both which Herodotus confirms by the narration of Glaucus Epicydides who only deliberated whether he should break his oath concerning a thing commited to his trust And Juvenal rehearsing the same story so concludes Such is the pain The bare intent of perjury doth gain Well said Cicero An oath is a religious affirmation and what you have firmly promised as in the presence of God is to be made good But that he adds For now it belongs not to the wrath of the Gods which is none but to justice and fidelity if by the name of wrath he understand a perturbation it is not to be rejected if any kind of affection or will to punish it is not to be received as Lactantius tightly proves XXVII In an Oath is required a deliberate minde LEt us now consider whence ariseth the vertue of an oath and how far it teacheth First what is said of promises and contracts hath place here also that a mind having use of reason and deliberate is required Wherefore if any one not conceiving that he swears utter swearing words as is related of Cydippe that may be said which Ovid ascribeth to her taken out of Euripides I haâ—…e not sworn because my mind went not with my tongue But if one willing to swear is not willing to oblige himself he is never the less obliged because obligation is inseparable from an oath and a necessary effect thereof XXVIII In what sense the words of an Oath bind BUt if one deliberately pronounce swearing words yet without a minde of swearing some say he is not bound yet sins in swearing rashly More truly he is bound to make good his words whereto he hath called God a witness For that act which by it self is obligatory proceeded from a deliberate minde Consequent to this it is that although that of Tully be true What thou hast sworn according to thy minde not to do is perjury Yet hath it this exception unless he that swears know or probably believe the words are taken otherwise by him with whom he dealeth For calling God to witness his words he ought to make the words true as he thinks they are understood And this is that which the same Cicero saith What is so sworn as the minde of the giver of the oath conceives it must be done it must be kept In Tacitus we read Trembling and changing the words of the Oath by various arts cónscious of their own wickedness Augustin They are forsworn who the words being salved have deceived their expectation to whom they have sworn And Isidore with whatsoever art of words one swears God notwithstanding who is a witness of the conscience takes it so as he doth to whom it is sworn And this is that which is meant by the phrase Liquido jurare Therefore did Metellus rightly refuse to swear to the Apuleian Law albeit there were some that said the Law by fault in the preferring of it was void and that the oath to the Law was so to be understood if the Law were rightly preferd and made For albeit in other promises is easily understood some tacit condition which may exsolve the promiser yet is not that to be admitted in an oath Pertinent here is that noble place of the Apostle to the Hebrews God willing most abundantly to shew unto the heirs of promise the immutability of his counsell confirmed it by an oath That by two immutable things in which it was impossible for God to deceive we might have a strong consolation For the understanding of which words we must know the holy Writers often speak of God 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and rather according to that which seems to us than that which is For God doth not truly change his Dâ—…crees yet is he said to change and to repent as oft as he doth otherwise than the words seemed to found to wit by reason of a condition tacitly understood that ceaseth Jer. 18. 8. Examples are frequent to be seen In which sense also God may improperly be said to deceive us and the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that appears in the said place to the Hebrews is wont to have the signification of
they that are armed and resist are stain as Livy speaketh that is by that Law which agrees with Nature So Josephus saith It is meet that 〈◊〉 fight they be punisht that use weapons no hurt must be done the guiltless Camillus at the taking of Veiae proclamed that the unarmed should not be touched In this rank are first to be placed Ministers of Sacred things for these by the antient custom of all Nations abstein from arms and therfore no force was offerd them So the Philistins enemies of the Jews did no harm to the College of the Prophets that was at Gaba as we may see 1 Sam 10. 5 10. And so to another place where was the like College as secluded from all injury of arms David fled with Samuel 1 Sam. 19. 18. The Cretians Platâ—…ch tells us when they were embroiled in Civil War saved the Priests from all harm and those whom they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men that had the care of but al 's Strabo notes when all Grecce in old time was enflam 〈◊〉 with war the Eltans as being sacred to Jupiter and their guests lived in secure peace With Priests are justly equald in this respect they that have chosen a like kind of life as Monks and Penitents whom therefore as well as Priests the Canons following naturall equity will have spared To these you may deservedly add those who give themselves to the studies of good learning and sciences useful to mankind After these Husbandmen whom the Canons also adscribe Diodorus Siculus reports of the Indians to their praise In â—…itells the Enemies kill one another but they meddle not with Husbandmen as â—…en that are profitable to the publick Of the antient Corinthians and Megareans Plutarch None of them did Husbandnen any haerm And Cyrus sent a message to the King of Assyrians That he was ready to save those that tild the ground from all indemnity Suidas of Belisarius He was so tender of the Countrymen and took so much care of them that whilst be commanded none of them ever had any violence offerd him The Canon addes Merchants which is not only to be understood of them that stay for a time in the enemies quarters but of perpetual subjects For their life hath nothing to do with Arms. And under this name are conteind also other Workmen and Artificers whose gain loves not War but Peace XLVI Captives and They that yield are not to be killed THat we may come to them that have born arms we have afore related the saying of Pyrrhâ—…s in Seneca that we are forbidden by Pudor i. e. by respect of equity to take away a Captives life a like sentence of Alexander we had wherein Captives are joind with women Let that of S. Augustin be added Let 〈◊〉 Will but Necessity slay a fighting Enemy As violence is rendred to him that warreth and resisteth so to one conquerd or taken mercy is now due especially to one not likely to trouble our Peace Xenophon of Agesilaus He charged his Soldiers that they should not punish Captives as guilty but keep them as men Diodorus Siculus All the Greeks oppose themselves to such as resist and spare such as submit In the judgment of the same Author The Macedonians under Alexander dealt more extremely with the Thebans than the Law of War would permit Sallust in his Jugurthin History having related the slaughter of the yong men after they had yielded saith It was done against the Law of War which is against the nature of Equity and the manner of milder persons Tacitus commends Primus Antonius and Varus Flavian Commanders because they never shewed cruelty after battell The Prophet Elisha speaks about Captives to the King of Samaria thus Wouldst thou smite those whom thou hast taken captive with thy sword and with thy bow The Byzantians and Chalcedonians because they had killed a good number of Captives are marked with this Elogy in Diodorus Siculus They did acts of exceeding great Cruelty The same Author elswhere calls it Common-right to spare Captives whosoever do otherwise without controversy saith he they do amiss To spare Captives is a command of Goodness and Equity saith Seneca and in Histories we find them every where commended who when too great a number of Captives might be burdensome or dangerous chose rather to let them all go than to slay them For the same causes they that yield up themselves covenanting for the saving of their lives whether in battell or in a siege are not to be rejected Therefore Arrian saith the slaughter made by the Thebans upon those that yielded was not according to the manner of the Grecians Likewise in Thucydides Ye receiv'd us willing and stretching forth our hands and the Gucians use not to kill such The Syracusian Senators in Diodorus Siculus It is worthy of a Noble mind to spare a suppliant Sopater To save suppliants is a custem in-Wars In towns besieged 't was observed by the Romans before the Ram had simitten the wall Caesar denounceth to the Advatici He would save their City if before the Ram had touched the wall they yielded Which is still in use in weak places before the Great Guns are fired in stronger places before an Assalt is made upon the walls But 〈◊〉 not so much respecting what is done 〈◊〉 what ought to be done delivers his judgment thus As you must consult for the good of those whom you have subdued by force so are they to be receiv'd into protection though the Ram hath smitten the wall who lay down their arms and fly to the mercy of the Generals The Hebrew Interpreters observe That their Ancestors had a custom when they besieged a City not to engirt it round but to leave one part open for those that would fly to the end the less blood might be shed at Taking of it The same Equity commands that They be spared who without conditions submit themselves to the Conqueror or become suppliants To kill them that call for mercy is cruel saith Tacitus Sallust also of the Campsanians who yielded themselves to Marius when he had related the slaughter of the yong men addes It was done against the Law of War that is the Natural Law The same elswhere Not men armed nor in battell according to the Law of war but suppliants were slain Yea This is also to be endevoured that they may rather be constrained through fear to yield than be slain This is prais'd in Brutus who sufferd not his men to do execution upon his Adversaries but surrounded them with his Horse commanding them to be spared as those that would presently be His. XLVII Objections answered AGainst these Precepts of equity and Natural Law are wont to be brought exceptions very unjust to wit if talion be exacted if there be need of error if there was an
obstinate resistance But that these things are not sufficient to justify slaughter he will easily conceive who remembreth what we have set down a fore about the just causes of killing From Captives and those that yield or desire to yield there is no danger that therefore they may be justly killed there must be some antecedent Crime and that such a one as an equal judge would think worthy of death And so we see sometimes great severity shewed to Captives and those that have yielded or their yielding on condition of life not accepted if after they were convinced of the injustice of the War they had nevertheless persisted in arms if they had blotted their enemies name with unsufferable disgraces if they had violated their faith or any right of Nations as of Embassadors if they were fugitives But Nature admits not talion except against the same persons that have offended nor doth it suffice that the enemies are by a fiction conceived to be as it were one body as may be understood by what is said above of the Communication of punishments Wâ—… read in Aristides Is it not absurd to imitate what you do condemn Plutarch for this accuseth the Syracusians that they slew the wives and children of Hicetas only for this reason because Hicetas had slain the wife sister and son of Dion Moreover the benefit which is hoped from terror for the future perteins not to the giving of a right to kill but if there is a right it may be among the causes for which that right is not remitted And For a more obstmate affection to ones own side if the cause maintained is not at all dishonourable that deserves not punishment as the Neapolitans discourse in Procopius or if there is any punishment thereof it ought not amount to death for an equal Judge would not so determine Alexander at a certain town when he had commanded all the youth to be slain because they made so sharp resistence seemed to the Indians to wage war after the manner of Robbers and the King fearing such a blemish of his Name began to use his victory more mildly It was better done by the same King to spare the Milesians because he saw they were gallant men and faithful to their own party which are the words of Arrian Phyto Governor of Regin when for defending the town so stoutly he was by command of Dionysius drawn to torture and death cryed out He was punisht because he would not break his trust and betray the place but God would suddenly revenge it Diodorus Siculus styleth these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unlawfull punishments I am very much pleas'd with that vote in Lucan May he be Conqueror who means to spare His Fellow-Citizens that adverse are Provided by the Name of Fellow-Citizens we understand not those of this or that Nation but of that common Countrey of all Mankind Least of all is Slaughter justifyed by grief and anger for some overthrow receiv'd as we read Achilles Aeneas Alexander sacrificed to their friends the blood of Captives and such as yielded Wherfore Homer justly saith of Achilles on this occasion He resolved on a wicked act XLVIII The Multitude spared Hostages spared Needless fights to be avoided MOreover where offenses are of that nature that they may seem worthy of death it will be a point of Mercy because of the Multitude of them to remit somewhat of extreme right Of which clemency we have God himself for Author who was pleased that Peace should be offerd to the Cananites and their neighboring Nations offenders in the highest degree such a Peace as allowed them life on condition of being tributaries Pertinent here is that of Seneca The Severity of a General shews it self against particulars but pardon is necessary where the whole Army is revolting What takes away Anger from a wise man The Multitude of Transgressors And that of Lucan Plagues Famine Ruines Storm or Fights have sent So many to their grave not Punishment Casting of Lots was ordained saith Cicero that too many might not be punished Sallust to Cesar No man exhorteth you to cruel punishments or bitter sentences whereby a City is rather wasted than reformed As to Hostages what is to be determined out of the Law of Nature may be seen above Of old when it was commonly believed that every one had as much power over his own life as over other things within his propriety and that that power by consent either tacit or express was devolved from every particular person upon the Commonwealth it is the less to be admir'd if we read Hostages though in themselves innoxious were put to death for the offense of the Commonwealth either as by their own peculiar or as by the publick consent wherein their own was included also But after that the more true and perfect Wisedom hath taught us that Dominion over life is excepted by God it follows that by consent alone no man can give to any power and right over the life either of himself or of his Citizen And therefore it seem'd atrocity to Narses a good General to take punishment of innoxious Hostages as Agathias tells us and other Authors say the like of others even by Scipio's example who said he would not shew his displeasure upon harmless Hostages but upon those that had revolted and that he would not take revenge of the unarmed but of the armed enemy Now that among the later Lawyers some of great name say such agreements are of force if they be confirm'd by custom I admit it if by right they mean impunity only which in this argument often comes under that appellation But if they suppose them free from sin who by agâ—…eement alone take away any ones life I fear they are deceiv'd themselves and by their perâ—…lous authority deceive others Clearly if he that comes an Hostage be or were before in the number of grievous dclinquents or if afterward he hath broke his faith given by him in a great matter posbly the punishment may be free from injury But Clodia who came not an Hostage of her own accord but by Order of the City when she had passed 〈◊〉 and escaped was not only safe but praised for her Vertue by the Etruscian King as Livy speaks in this History We must here add this all combates which are of no use to obtem right or end the War but have meer ostentation of strength proposed to them are contrary both to the office of a Christian man and to Humanity it self Therefore Rulers ought seriously to forbid them being to render in account for blood unprofitably shed to Him in whose stead they bear the sword Surely Sallust also hath commended Generals that bought their victories at the least expence of blood And Tacitut saith of the Catti a people of approved valour Their excursions and 〈◊〉 fights were seldom XLIX A Temperament about wast and