handes or to the vse of the Lord and though he be so seised yet it must needes be that he was borne free for the rule is true Quae iure gentium acquiruntur ea non acquiruntur nisi vera interuenerit apprehensio r l. 3. de acqui po vbi Ias otherwise he should possesse the treasure who possesseth the ground in which it is yet he doth not possesse it howbeit he knoweth of it and therefore that rule is not in the Law of Nations true Si quis habet id quod continet habet id quod continetur For in the Law of nations this generall maxime holdeth place Vera et realia non ficta et verbalia amat ius gentium yet such a precise seisure is not heere ment that euery part of him that is taken should be touched euen to the verie shirt of a man as long as he that seiseth hath a will and power to seise for he that toucheth a mans eare is in the ciuill Law held to touch the whole man Å¿ Alc. d. 41. d. l. 3. l. 21. de fur Some hold opinion that he is not a Captiue vntill he be brought into the tents of his enemie t l. 5. de capt Alex l. 1. de acquir po tt 4. reg 6. howsoeuer it be it is plaine that Captiues may not be put to death as the prophet said to the king of Israel An quos captiuos abduceres gladio tuo et arcu tuo eos percuteres And though bloudie Pyrrhus desirous to kill Polyxena did pretend that lex nulla captâ— parcit aut poenam impedit yet Agamemnon aunswered him well quod non vetat lex hoc vetat fieri pudor u Senec. in Tro. To which purpose the other Seneca saith excellentlie Augusta innocentia adlegem bonus esse et latius officiorum patet quà m iuris regula multa exigit pietas humanitas liberalitas iustitia fides quae omnia extra publicas tabulas sunt The Scots therefore are greatlie to be commended who as Buchanan reporteth though great daunger were imminent yet did not slaie their prisoners uu Buchan lib. 9. Neither did the English euer that I reade vnlesse it were once in that notable fight in which they did vtterlie destroy the French dominion who hauing more prisoners then themselues were and finding their captiues to tende to conspiracie and mutinie hauing singled the most noble did kill the baser prisoners x Com. Pi. 2. lib. 6. Polydor. 17. But doubtles the Turkes crueltie was barbarous who did kill fowre thousand prisoners that they might not be a burden or charge vnto him a Ior. lib. 3. And this fault was committed by Henry the second king of Fraunce b Nat. Com. lib. 8. who did cause certaine obstinate prisoners perseuering in fight to be hanged a kind of death vnfit for Captiues who are not so to be punished without great and vrgent cause because it is a point of immanitie and crueltie bitterlie to rage against them which defende their Prince and their Countrie A Captiue one may be and yet not a bondslaue for he can not be a bondslaue vnlesse his Lord will haue him so There was a ceremonie therefore vsed to make him bondslaue which was called Nexus And it seemeth that the Praetor had some authoritie in this matter which I ground onelie vpon the last will and militarie testament of a Romane ingrauen in stone as Sigonius reporteth who would haue his villaines manumitted by the Praetor c Car. Sigo in vit et trinu ph and sithence eiusdem potestatis est ligare soluere I am of opinion therefore that he had some intermedling in the making of them villeines But in the making of them villeines chaines doubtles were vsed and therefore Vespasian when he had taken Iosephus prisoner would needes haue his gyues to be broken not to be loosed that he might seeme neuer to haue been a bondslaue d Ioseph lib. 5. de bel Iud. And whereas the Law saith that such thinges as are taken of enemies capientium fiunt e l. 5. de ac re do it is not meant nolentium therefore though the power of him that taketh make a captiue yet his will must make a bondslaue But surelie the state of captiues if they become bondslaues is verie miserable for they are as it were deiected from their nature and are in accompt of Law tourned into beastes And wheras before they were accompted in Law persons now they are accompted thinges f ad leg Aquit 209. Bald. 2. cons 358. and therefore of the Graecians they are generally called Samata bodies But I do not think this seruitude to be contra naturam For Aquinas his distinction is not to be reprooued that seruitus is á natura though not secundum primam intentionem by which we are all made free yet ex secunda by which God doth punish whom it pleaseth him but such bondslaues must not be vsed like beastes but like men wherefore the speech of some is intollerable Seneca reporteth it who did affirme domino in seruum nihil non licere pictori nihil non pingere g Sen. 1. contr 5. And Plato writeth not well when he saith that bondslauesl l Plat. lib. 6. de leg are to be handled roughlie Aristotle more trulie that they ought to be handled mildlie m Arist 1. polit Cicero more iustilie Meminerimus et aduersus infimos iustitiam esse seruandum Macrobius more modestlie Dominum patremfamilias seruos familiares appellauerunt nostri maiores omnem seruis contumeliam detrahentes n Macrob. 1. saturnal 11. Clemens Alexandrinus more compassionatelie Famulis vtendum tanqum nobis ipsis sunt enim homines tanquam nos o Cle. Alex. â—lt paed Nunquid canes saginabuntur homines pascentur male said Diogenes In Athens there was a Law de iniuria seruili p Athenae lib. 6. Amongest the other Graecians there was a Law that bondslaues might depart from their cruell maisters In some common weales they had licence to purchase landes and goodes as Athenaeus q Pollu 7. Plat. de superst reporteth according to the Romane Law as appeareth by Seneca Dominus praestare debet seruo cibarium vestiarium est enim seruus perpetuus mercenarius r Senec. lib. 3. de benefic 7 Enough of Captiues Now let vs not be vnmindfull of Hostages which are in state not far distant from Captiues Therefore Quinctius did cause the sonne of Phillip and the sonne of Nabis to be led before his triumphall chariot though they were but Hostages Å¿ Oros lib. 4. c. 20. Liui. 34. And the Parthians were wont to saie obsidaetus nihil aliud est quà m seruitus t Ioseph lib. 18. antiqu By the Ciuill Law they can not make a testament no more then others which are in the enemies power u l. 1 1. qu. test fa. po The definition of Hostages is thus
collegiate the lawe is that though his assent goe not to the election of the partie who is to be the gouernor yet our law commandeth that after the election it should bee registred a c. nobis de iur patronat Yet it seemeth to be spirituall because if a laye patron doe present one and after will varie and present another nowe it is left to the arbiterment of the Ordinarie which of them hee will admit b 2. dist c. ecclesiastic et c. quod autem de iur patronat and hee which is so refused by the Bishop hath no remedie against the second presentee but he may haue remedie against the Bishop for his vniust refusall or wrongfull delay and his remedie in this case is a duplex querela against an inferior Ordinarie and this must be handled in the spirituall court c Pastoralis co tit Anglonomoph Yea but the reason of that is giuen in our lawe because the right of patronage shall not come in debate d Regist 55. Canonol This is petere principium but let me proceed There is such a mutuall correspondence betwixt the patron the Church that they may not bee seuered either in gouernment or in iurisdiction for though the patron hath aliquid honoris as we said because he is to haue the first place in the procession e 16. q. 7. piae mentis yet hee hath also aliquid oneris for he is bound by our lawe to defend the Church from all oppressions f 17. q. 7. filiis and in that regard if he fall into pouertie he is to be mainteined de bonis ecclesiae g Praealleg c. filijs Anglonomoph These circumstances do not inferre the conclusion which you labour for It shall appeare to you Canonologus by our law and by verie strong reason that the right of patronage 5 Ius patronatus is one of the proper obiects of the common law or the aduowson of the Church is one of the proper obiects of the common law First it is a rule with vs that if a man be sued in the spirituall court for a laye fee a prohibition will lye that is for lands and tenementes as M. Fitzh well expoundeth it h Fitzh N. B. 40. I. Now that an aduowson is a tenement lyeth in tenure may 6 That an aduowson lyeth in tenure by seuerall authorities be auouched and therfore a tenure ought as well to bee found by office of an aduowosn as of a mannor i 14. H. 7. 28. â— Bri. 17. E. 3. 10. and a lease for yeares may be made of an aduowson and if the lessee alien in fee this is a disseisin to the lessor k 7. E. 3. 11. and 15. H. 7. all the Iustices agree that an aduowson lyeth in tenure l 15. H. 7 8. And for that cause if one hold and aduowson of the king and graunt it to another without licence the grauntee shall pay a fine m 21. E. 3. 31. 20. E. 3. Estoppel 187. And generally vpon any surmise that a man is sued in the spirituall court for a temporall thing a prohibition will lie n Fitzh 43. h. Now the aduowson is temporall though the admission institutioÌ„ be spiritual Nomomath Let me aske you further this question 13. Diuision if a man sweare to me that he will make me a feofement of certaine land before such a day and he doth it not whether may I sue him in the spirituall court pro laesione fidei Anglonomoph No for if you do a prohibition 1 Punishment pro laesione fidei concerning a temporall acte is not to be adiudged in the ecclesiasticall court will lie by our law because the acte which is to be done is a temporal acte is to be tried by the commoÌ„ law o 38. H. 6. 29. Fitzh 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni 16. D. S. lib. 2. c. 24. and if men be sworne to giue true euidence to a iurie and they doe so whereupon certain persons be endited of some misdemeanor if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath they may make a prohibition p Fitzh N. B. 42. F. 11. H. 4. 88. prohib 12. but if any periurie be committed in a spirituall 2 Periurie in an ecclesiasticall court punishable in an ecclesiasticall court court there the spirituall court shall haue iurisdiction q Stat. de circumspect agat 13. E. 1. 5. Elizab c. 23. c. 9. but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio though not at the suite of the partie r 20. E. 4. 10. and if a woman haue title to sue a Cui in vita and she maketh oath to the tenant of the land that she will not sue any cui in vita against him if after she sue a Cui in vita and thereupon the tenant sueth her in the spirituall court pro laesione fidei shee may haue a prohibition because the oath toucheth a temporall thing namely land Å¿ Fitzh N. B. 42. â— 4. H. 3. prohibit 19. Bracton lib. 5. c. 2. And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day and at the day hee fayleth of the paiment hee may not now be sued in the spirituall court for the periurie because an action of debt lyeth at the commoÌ„ law for the principal t 22. E. 4. 11. H. 4. 88. prohib 12. But 34. H. 6 it is saide that if a man buy an horse for fiue pounde soluend such a day and sweareth to make paiment at the day but when the day is come fayleth of payment an action of debt lyeth at the common lawe and an other at the spirituall lawe pro laesione fidei and a writ of prohibition lyeth not because they be two distinct thinges u 34. H. 6. 30 Br. prohib 2. yet 2. H. 4. is that a prohibition lyeth in such case x 2. H. 4. 10. Canonolog But Lindwood sheweth that a libell may be so framed that no Prohibition will lie in your last recited case as namelie the libell may be That the partie hath damnablie broken his oath pretending that he was not bound by it a Lindw in capit aeter sanctio verb. periur Anglonomoph That is but a weake support 3. Linwoods authoritie touching punishment pro lâ—sione fidei in temporall matters at the ecclesiasticall Law is not admitted of the spirituall iurisdiction for it is one thing to be punished for periurie an other for his irreligious pretence And surelie I take it to be agreeable to all Lawes that pretenses and intents are not punishable but onelie in crimine laesae Maiestatis And a man may sue a Prohibition directed to the Shirife that he shall not permit nor suffer the Queenes lay
§ Sed natural instit de iu. na as I haue sufficiently shewed in my Direction to the study of the Law Cap. 7. 8. but onely of such thinges as belong to them by the Ciuill law yet by the opinion of the later Ciuilians this is helde to bee no law but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k Deci. Cons 209. in casu 2. 69. consultus 390. quoniam 519. visis 557. accurate and this later opinion seemeth to bee more reasonable and more consonant to the truth for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe so that they are not altogether parcell of the law of nations l Bal. â—a in l. omnes C. Si con ius vel vtilitat pub Againe the right of demesne and property is not alike in all nations m Herodot li. 4. Strab. lib. 11. Arist lib. 2. polit Tacit. de mor. Germa Caes lib. 4. 6. de bel Gal. but is moderated and ordered by the lawes of particular coÌ„mon weales But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands goods chattels or dammages Surely this is permitted by no law but by the ciuill n l. 2. C. de prec imp off and common law expressely prohibited for the king cannot grant to any person that he shal not be impleaded or sued in this or that action though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor yet in this case he doth not take away the action of the partie but doth onely restreine him to bring his actioÌ„ in a certain place o 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may p li. vlt. C. de consul without cause seise the lands goods of his subiects for it is plaine that a king hath more power ouer his subiectes then the father hath ouer his children but by the ciuil law the father may take away the goods of his children when hee will q l. placet 79. D. de acquir haere l. acquirit 10. D. de acquir re do therefore the king may take away c. To this reason grounded vpon the ciuill lawe I do thus answere that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods persons of their subiects so that they may not without cause bereaue them of their goods and therefore there is a good rule in the ciuill law that in priuatorum agris nihil ne publico quidem consilio cum ipsorum iniuria capi ius est r l. Venditor 13. D. de com praed And to that purpose Cicero speaketh well Videndum erit ei qui rempub administrabit vt suum quisque teneat neque de bonis priuatorum publice diminutio fiat and for this cause God did appoint a certain portion of land to euery tribe of the Israelites Å¿ Deutero 17 and by reason of a priuate title Naboth would not sell or chaunge his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath vt iura regni integra conseruaret u C. in tellect 33. ex tr de iureiuran And in the ciuill law it is said Qui pleno iure Dominus est alienandi dissipandi disperdendi ius habet a l. 7. cod de relig l. sed etsi l. 25. §. consuluit D. de haeâ—ed petit And againe suae quisque rei arbiter ac moderator est b l. in remandat 21. C. de mand So that it is euident that without cause the propertie which subiectes haue in goodes and landes may not bee altered by their prince And therefore wittily sayeth D. Gentilis that they which argue to the contrarie do not dispute or drawe their arguments ex castis fontibus Philosophiae aut ex ipsis iurisprudentiae riuis sed escholis sophistarum hallucinati sunt Theologi adulati sunt iurisconsulti qui omnia principibus licere asceuerarunt c Alberic Gentil Dec. 1. disput 2. disput I would not be mistaken in this Chapter sithence I hold an indifferent course betwixt prince and people neither consenting to them which say that princes may seise the lands and goods of their subiects without cause nor to them which thinke that they may not seyse their lands and goods for any cause but my resolution is and the summe of this discourse is if it bee diligently and impartially obserued that princes may lawfully claime and take to their owne vse the lands and goods of their subiects for the causes abouesaid and prescribed by lawe and not otherwise and by this word Princes I meane none but absolute Monarches for the law of nations alloweth this prerogatiue to none other And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law Lex est rerum omnium domina quia scilicet ciuitatis cuiusque ciuium singuloruÌ„ patrimonium constituit definit tuetur Lex sola dominiuÌ„ rerum confert sola dominij acquirendi modos constituit citra quos acquiri nullius rei dominium potest f §. 2. de bon posses apud Vlpi eo tit reg 19. This foundation being laid I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable as when a true man is pursued as a felon and he flieth and waiueth his owne goods these are forfeited as if they had beene goods stolne g 29. E. 3. 29. 37. H. 8. Br. Estray 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason he shall forfeyt all the landes tenements which he had at the time of the felony or treason coÌ„mitted or at any time after as well as if he had beene attainted by verdict h 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent as to the landes and tenements so that a feoffement of land or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit but he saith that as to an attainder by verdict that it shal haue relation to the time of the felony done according to the supposall of the inditement as to
lands and tenementes and so it is of an attainder by confession i Parkins Graunts 6. But M. Stamford being better aduised saith that as soone as any of the offences aforesaid are committed hee is restrained to make a gift or any other alienation of his lande and if he doe it shall presently bee made void by his attainder and it is not materiall whether the attainder be by outlawrie or verdict and this is agreeable to the booke of 38. E. 3. fol. 37. k Stamford fol. lib. 3. 31. â— but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent and forfeiture by attainder by verdict shall haue relation to the verdict l Stamford 192. The third Chapter That the worthinesse of blood hath beene principally respected of all nations THe diuision of inheritances in stirpes in capita hath made great diuision in diuerse common weales yet in all of them the worthinesse of bloud hath beene regarded By the Romane law the sonne of the elder sonne who is dead shall equally succeede in the inheritance with the second sonne And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances and for the deciding of it the Emperour Otto the first did cause a Parliament or generall assemblie of estates to be held for the disceptation and deciding of this doubt When after much busines and argument no determination could be had the matter was ordeined to be tried by single combate an vsuall thing in these daies for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and two a Witichindus lib. 2. histor 2. Sigebert in chronic Ottonis 1. and a formall triall referred to God when mans wit was at a nonplus But in this case that part ouercame which did accompt the sonnes of elder sonnes as sonnes and therefore it was ratified by Law that they should equally diuide the inheritance with their vncles Amongest other nations diuers contentions haue risen about this matter for when Eunomus the King of the Lacedemonians had two sonnes Polydectes the elder and Lycurgus the yonger and Polydectes deceased leauing no sonne lyuing at the time of his death and therefore Eunomus being dead the septer of that kingdome came to the handes of Lycurgus afterward when Polydectes his widow had brought forth a sonne Lycurgus did willingly and readilie yeeld to him the septer b Plut. in vit Lycurg Iustin lib. hist 3. Which act of Lycurgus agreeth fully with our Law whereby it is ruled that if a man haue a sonne and a daughter and the sonne purchaseth land and dyeth and the daughter entreth and after the father begetteth an other sonne of the same wife this sonne shall haue the land c 19. H. 6. 6. So if a man enfeoffe an other vpon condition and the condition is broken and the feoffor dyeth without issue his wife priuement enseint and the brother of the feoffor entreth for the condition broken and after a sonne is borne he shall auoide the possession of his vncle may lawfully claime the inheritance d 9. H. 7. 25. And it is likewise said that after two or more discents the heire afterward borne claiming by discent may enter into the land but he shall not haue a writ of Accompt for the mesne profites nor any writ of Wast e 9. H. 6. 23. But in cases of purchase the Law taketh a difference and therfore it is said 5. E. 4. by Billing that if a man deuise land to a man and his heire and the deuisee dieth hauing issue a daughter his wife being priuement enseint with a sonne who is afterward borne the daughter shal reteine the land in perpetuum which the Court graunted f 5. E. 4. 6. And 9. H. 6. it is said that if a remainder cannot veste in any at the time when it falleth it shall not veste in him that is borne afterward where an other hath entred before g 9. H. 6. 23. 2. Eliz. 190. pla 18. But to retourne to the examination of this matter by historie Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes who died before his father and Cleonymus the second sonne the vncle of Areus but by Senate-decree the kingdome was adiudged to Areus h Pausan lib. 3. And Polydore Virgill reporteth that king Edward the third being deceased Richard the second the sonne of his eldest sonne obteined the kingdome and was preferred before Iohn Edmund and Thomas the sonnes of king Edward i Polyd. virg in hist reg Angl. Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth that when Hanno had inuaded the kingdome and expulsed Erkenbalde the sonne of his elder brother this matter was brought into question in the ende Hanno was constrayned to laie aside armes and to stande to the iudgement of the Peeres who adiudged that Erkenbalde should haue the same power and interest in the kingdome which his father might haue had if he had suruiued k Paul Aemil. in tit Carol. Crass Neither will I denie that examples may be produced on the contrarie part as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia for it is deliuered by Herodotus l Herodot lib. 7. Iustin m Iustinus lib. 11. Plutarch n Plut. in Artaxerx that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes as Herodotus Artemenes as Iustinus calleth him and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia Demaratus was at the same time there who was driuen and expulsed out of the kingdome of Sparta and he signified vnto them that the Law and custome of the Spartanes was that the sonne that was borne after the father had attained to the kingdome was to be preferred before the elder brother who was borne before for which cause the kingdome was adiudged to Xerxes the yonger sonne who was borne of Darius being king whereas the other was begotten of him being a priuate man But this iudgement was after reuersed For when after the death of Darius the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man and Cyrus being borne of him after his aduauncement to the kingdome and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes and his brother the Persians notwithstanding the former iudgement did now adiudge the kingdome to Arsica o Plut. in vit Artaxerx Neither am I moued though in the contention for the Dukedome of Millayne betwixt Lodwike and Galeatius bretheren whereof the one was borne before his father obteined the Dukedome the other after the contrarie were determined for Law p Guicciard lib. 1. histor For by the most examples of euery
fault when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon And fitly to the same purpose though not purposely for the same Lawes haue agreed to sinnes and that is admitted to bee lawfully which is publike h Cypr. 2. ep 2 And Seneca againe Small theftes are punished great are caried in triumph i Senec. ep 88 Tertullian saith that wrong is proper to warre and as farre as his authoritie stretcheth prohibiteth battaile to Christians k Tertullia adu Iud. but sithence the time of Tertullian these opinions haue beene confuted of Diuines Ciuilians and Philosophers for warre is according to lawe though many mischeefes do steigne it for there doeth ensue good of it when rebels are reduced to obedience and when peace is accorded and that whose end is good is also good it selfe for the end of war is peace to which and to common equitie without bloudshed and these iniuries of warre men do seldome attain Neither doth Seneca disalow all warres for he praiseth the warres of Hercules l Senec. lib. 1. de benefi as to Tertullians saying hee did speak it vpon the consideration of such things which are vniust and are often done in warre not impeaching that which is vsually done of them that be iust to Lactantius Cyprian answere may be made after the same sort Notwithstanding I would not haue this poyson of war admitted into any commonweale vnlesse it be to expell an other poison nor this furie to be let loose vnlesse it bee to coole the furie of others or vpon like necessitie But now let vs sift the precedent definition of warre more narrowly and consider how warre may bee iustly maintained on both sides which both Diuines Ciuilians m Conua reg peccat §. 18. Soto 5. de iust q. 1. 7. view relect haue thus expounded saying that it may bee truely and verily iust on the one side on the other by ignorance as by the voice of God the Iewes did iustly moue warre against the Cananites and the Cananites did iustly resist the Iewes not knowing God his will and defending themselues and therefore it was well said of Pope Pius the second to the embassadors of the king of Hungarie who did speake against the Emperour that he thought the king of Hungarie would not depart from right and reason and hee knew likewise that the Emperour was a louer of iustice howsoeuer nowe they did discent by warre and that neither of them thought that hee had an vniust cause of warre n Com. Pij 2. lib. 3. Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey There was some obscuritie there was variance betwixt two excellent Captaines many doubted what was the best many what was expedient for them many what was decent some what was lawfull o Cice. pro. Marcel but the Ciuil law doth attribute the rightes of warre vnto both parties the things that be possessed by warre it giueth to the possessor captiues it maketh bond seruants to both Now it is conuenient to discend into a more particular consideration of the causes of warre which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches To assault thy neighbours by warre saith Augustine and to vexe people that doe thee no hurt through an ambitious desire what is it els but a great robberie p D. August in 4. de ciuitat Dei Therefore the saying of the Barbarian was as barbarous as himselfe That is most iust in prosperous fortune which is most forcible and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse But Attila which did not attend any cause or occasion of warre did therefore worthely dedeserue the hatred of all men as being an enemie to q Tacit. Ana li. 15. all men r Ior. de o◠but the Turkes do otherwise who most commonly pretend a cause of warfare and therfore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes because it is not as one saith the custome of the Ottomans vpon a rage or heate of mind to enterprise warre ſ Natal com lib. 1. It is a beastly part hauing receiued no iniurie to commit slaughters of men and depopulations of cities and countries therefore princes many times pretende causes of war where in truth there is no cause And Moyses sought for a good cause of quarrelling with the Emorites though hee had a cause absolutely iust namely the commandement of God For when by vertue of the same commandement he was to make warre against the Emorites vtterly to destroy them hee sent messengers to their king which might signifie thus much I will passe by thy land we will not turne into thy field nor vineyard nor drinke the water of thy well wee will keepe the right path vntill we be past thy borders Therefore let there be a cause of warre and let it be no small cause for parum a nihilo vix distat And as Propertius saith Frangit attollit vires in milite causa Quae nisi iusta subest excutit arma pudor Iust cause of warre is the defence of our countrie our selues our friends our fellowes goods A defensiue warre is grounded vpon the lawe of Nature therefore C. Pontius the Captaine of the Samnites said well That warre was iust vnto them to whom it was necessarie and that their armes are honest which haue no hope of safetie but in weapons Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully and by force taken from vs by our enemies t c. iustum q. 2 August q. 10. sup Iosu lib. 2. or that the authors of the iniurie at least may be yeelded vp into our hands to bee punished if they did it not by publike decree but by priuate malice therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule who did go about to vsurpe the kingdome of Israel which God by Samuel the Prophet had giuen vnto Dauid u 2. Reg. c. 2. and Romulus did therefore fight against the Sabines because their Dictator Cluitius would not restore the things taken from the Romanes by violence nor yeelde vp into his handes them that did wronge a Dionis Halicarn lib. 3. And the reuenge of an iniurie most despightfully done is likewise a good cause of warre Therefore Dauid did iustly wage battell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors b 2. Regu c. 20 duob sequenti and that prince hath iust cause of warre who pursueth by armes rebelles and such as swarue from obedience c c. auctor it vs. quaesti 6. cap. scir 103.
quaest 8. for great iniury is done to God and to the prince when his subiectes will not be ordered nor ruled by his authoritie for there is no power but of God and he that resisteth power as S. Paul saith resisteth the ordinance of God d Ep. ad Roman c. 13. and the iniurie done to a soueraigne Magistrate is done vnto God Who said vnto Samuell of whom the people craued an other king They haue not cast off thee but me that I may not reigne ouer them e 1. Reg. c. 8. And Dauid did wage battaile against Seba the sonne of Bochri who solicited the people to reuolt from Dauid to him f 2. Reg. c. 20. But because a Rebell may not properlie be called an enemie when any such armes are borne against rebels it is not to be called a warre but an exercise of princelie iurisdiction vpon traiterous and disloiall persons g Innocent in c. olim 1. de resti sp et l. which was well declared by Pompey in iustifying the warre mainteined by the Senate against Caesar and his complices h Lucan lib. 2. nequè enim ista vocari Praelia iusta decet patriae sed vindicis iram And this is confirmed by Ciceroes opinion who did not think it conuenient to send Embassadors to Anthonie nor to intreat him by wordes but that it were meete to enforce him by armes to raise his siege from Mutina for he said that they had not now to deale with Anniball an enemie to their common weale but with a rebellious Citizen i Cicer. philipp 5. And the said Cicero writeth also to Plancus that peace ought not to be concluded with the Anthonians who had besieged Brutus at Mutina calling them shamefull theefes which either ought to craue peace laying aside their Armour or if they will persist in their furie to obteine it by fight not by composition k Cicer. lib. 10. epistol episto 6. Wherefore it was vnaduisedly done by the late Earle of Essex in admitting anie article of composition with Tyrone and namelie for the restitution of such landes and possessions to which the Rebels might pretende right before the rebellion for so vpon euery iudgement giuen against them they would presentlie haue retourned to weapons And this slipperie reuolution of titles might perhappes haue stirred them to Armes who were in peaceable possession of these lands so that this would haue been nothing else but a cutting off of one of the heads of Hydra that an other might growe for surelie there will alwayes bee some cause and occasion of tumult if men may bringe into question antiqua et antiquata The Romanes would graunt nothinge at all to Rebelles beecause theyr course was to bee sterne to the proude and rebels in that they are rebels are proude in the highest degree Neither ought anie of their kinred to regarde them but to bee of Seneca his resolution Si arma quis patriae meae inferret quidquid de me meruerat perdidit referre illi gratiam scelus haberetur l Senec. lib. vlt. de beni fi And exccellent is the saying of Fredericke the second to the Fauentines Qui dum potest delinquit dignus est vt quantum potest puniatur m Sigoni lib. 18. de re Italâ— But to returne to the causes of Warre There be some causes of making warre which wee referre to God as commaunding warre as when the Iewes did referre to God the cause of the warre mooued against the Cananites n Deut. 34. 4. Exod. 23. 29. Num. 33. 51. Deut. 20. 16. 17. 18. And God denounceth irreconciliable warre against the Amalekites and he chargeth his people with perpetuall enmitie against them o Exod. 17. That kinde of Warre saith Augustine is without all doubt iust which God doth commaunde vvith whom there is no iniquitie and vvho knoweth vvhat ought to bee done to euerie man in vvhich action the armie is not so much to bee accompted the authour of vvarre as the minister thereof p August in Ios q. 10. And so the Prophet Esaie said that it was not necessarie for king Ezechias to aunsweare anie thinge to the Embassadours of the Philistines of the Israelites right in Palestine but onelie this That God vvould haue that land to bee his peoples q Esai 15. Naie the verie Heathen as the Aethiopians did vndertake euerie warre by the Oracle of Iupiter r Herodot lib. 2. And the Spartanes by lottes and miracles were mooued to make warre and to fight with the Argiues Å¿ Xenoplâ— 4. Graec. And Aeneas commeth into Italie to maintaine warre by destinies and Oracles t Nat. com 6. 14. And the Turkes doe alwaies pretende this cause of their warre that it is the commaundement of Mahomet that they should persecute men of diuerse Religion therefore they and the Persians the one seeming haereticall to the other are in continuall warre And the late king of Spaine Phillip did pretende this defence of his warres as some testifie that they were against Infidels and Heretikes u Ferrat de inimic §. 7. et 17. Yet a Doctor of his owne sect Baltasar Ayala thinketh that warre is not to be leuied against Infidels because they be Infidels although the Emperor or Pope should commaund it for their infidelitie doth not depriue them of these demesnes which uu Baltas Ayal lib. 1. de iur bel c. 2. they haue by the Law of Nations for the earth was not giuen to the faithfull onelie but to euery reasonable creature for the earth is the Lordes and the fulnes thereof the round world and whosoeuer dwell therein x Genes c. 1. Exod. 9. 29. Psal 24. 1. And the Lord maketh his Sunne to shine both vpon the good and the bad y Math. 5. in fin et c. 6. in princip and though Nabuchadnezer were an Infidell yet the Lord did giue vnto him kingdome and principalitie z Ierem. 27. 6. But in grounding warre vpon diuine causes it is good to be certaine of God his will and not to credit the aequiuocall prophecies and fantasies of men light-headed and possest of fierie spirits fit to kindle tumults and vprores for the warrants of such men are nothing els but the wracke of a number of men Such was the oracle of that Scot vnto his king consulting with him of warre against England Ibis redibis nunquam in bello moriturus which fell out afterward to be true being thus distinguished Ibis redibis nunquam in bello moriturus Such was the warrant of the Eremit moouing the imperiall armie to fight against the Ligurians zz Carol. Sâ—gon in vit Andr Anti. Such were the fond prophecies of Ball or according to some Chronicles Wall a priest who stirred vp a rebellious armie in the time of king Richard the second zzz I. Stow in Rich. 2. But from warres which displaie the banner I will passe to leagues which wrap it vp 2. As warres haue
vaine sophistrie in steade of true religion and such societies and such families whether of loue or of lust I can not well define which delight in latebris are worthy to be sent ad carceres that they may there liue in tenebris for it is fit to send corrupt humors which ouerloden and pester the bodie in latrinam For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them and finding such strength in the weakenesse of the multitude they beganne to plant their ramme and sette their force against kingdomes common weales and had thought vtterly to haue subuerted them but their companies were quickly dispersed and the greatest parte of these companions was destroyed by fire and sword a Polyb. li. 3. Now to speake somewhat of the liberties of a citie S. Paul when he was by the commandemēt of the magistrates apprehended being accused that he troubled the publike tranquilitie by seditious assemblies professing himselfe to bee a citizen of Rome hee appealed to Caesar b Act. 25. v. 11 though hee were by nation a Cilician by bloud an Israelite by tribe a Beniaminite yet because his father c Acto 22. v. 28. had beene a citizen of Rome the liberties were affoarded vnto him he likewise when he was commanded to be scourged pleaded for himselfe that he was a Romane d ibid. v. 25. But because the abundance of liberties of all the cities of Asia Africke and Europa are sufficiently knowne I will not stay any longer vpon this point but wil passe to matters of greater importance and more difficultie The ninth Chapter That the distinguishing of demesnes the difference of the degrees callings of men is according to the law of nations COnfusion breedeth alwaies contention partition peace according to the old prouerb Diuide et impera for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries as Abraham Lot in Palestine Masinissa and the Carthaginians in Numidia and Mauritania the Romanes and Nolanes in Italie the Romanes and Carthaginians in Spayne and Sicilie the Emperour Valens and the Gothes in Missia and the regions on this side Danubius through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes and his other sonne Honorius to whom he allotted Roome and all the occidentall countries and so Darius would haue made a partition with Alexander of the whole world that the one of them shold haue all on the one side of Euphrates the other all on the other side yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne as may appeare by these authorities first of Virgill who saith Ne signare quidem aut partiri limite campum Fas erat a Virgi Georg. 1. And of Tibullus non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi 3. And that of Seneca Nullus in campo sacer Diuisit agros arbiter populis lapis c Senec. in Hippoli act 2. yet the case was altered when Ouid writ thus Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem d Ouid. 2. Fasto And vpon good reason was it altered for as Boetius saith well Dimensiones terrarum terminis positis vag antibus ac discordantibus populis pacis vtilia praestiterunt e Boeti in geomet And the great vse of limits and boundaries Plutarch sheweth when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur iniuriae iudicium si non seruarentur f Plut. in Num. pr. R. 15. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations bounds betwixt partie partie and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus and this idoll was made of stone g Plut. in Num. He was set in a chappell as not fit to be remoued hee was made of stone as hard to be remoued he was placed vpon a high rocke as not possible to bee remoued and to this idoll nothing was sacrificed but cakes pulse and the first fruites of the field the meaning doubtles of Numa was good if it had not beene signified set forth by an euill meane For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice Wherefore Salamon saith that which also is commaunded in Deuteronomie Thou shalt not remoue the auncient boundes which thy fathers haue made h Deut. 27. 17 Prou. 22. v 28. 23. v. 10. but the manner of diuiding lands dominions according to the custome of nations is fully set downe by M. Littleton though applyed to another purpose it is fiue-fold 1. By setting out an equal rate of the lands to be diuided 2. By the agreement of frends or intermediation of others 3. By casting lots 4. By writ de partitione facienda at the commō law the action de herciscunda familia at the ciuill law 5. By making an vnequall partition equall by a forrein reseruation i Littlet lib. 3. c. 1. Distinctions likewise of the degrees of men hath beene in all nations in all ages established obserued and vsed For the aduancing of noble men aboue them of lesse note and the preferring of the gentleman before the yeoman and peasant is very ancient and hath beene vniformely reteigned neither is it to bee maruelled at for nature her selfe hath tought the nations her schollers this lesson Trauaile through all her kingdome that is through the whole world you shall find this difference in force and of great validitie Consider the scituation of the celestiall orbes and ye shall note that the fierie heauen is placed aboue the chrystaline as more worthie both these aboue the firmament the firmament aboue the other Spheares as surpassing them Marke the birdes of the ayre ye shall perceyue that the Eagle the Phaenix and the Parott holde preheminence aboue the rest Looke vpon the riuers ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges Ganges better then Danubius Danubius better then Tagus Tagus then Padus Padus then Tempse Tempse then Seuerne Note the fishes of the sea yea shall find these to haue place aboue the rest the Whale the Dolphin the Sturgeon
therefore the Pirats answere to Alexander is misliked n Alberic Gentil lib. 1. de iur bel c. 4. when he said boldly That because he did robbe on the seas with one small pinnesse therefore hee was accompted a pirate but because Alexander did the same with many great gallies therefore he was tearmed the Gouernor of a fleet o Cicer. 3. de repub howbeit this saying of the pirate seemeth to be commended by Cicero p Ibid. and to S. Augustine q August l. 4. de ciuit dei it seemeth to haue beene spoken truely and eloquently which is very straunge vnlesse they did accompt Alexander a robber whom some doubt not to call so r Luc. 10. Senec 1. de benefic and Alciat also is deceiued which not onely alloweth the said speech of the pirate but euen piracie it selfe ſ Alci 1. Cons 1. because forsooth pirates are tollerated of some princes and there were some nations which did publikely practise and put in vre that course of life The Normanes saith P. Emilius as antiquaries doe thinke did recken and repute piracie amongst laudable things t p. Emil. lib. 3. Franc. And Alciat reasoneth further That they offend lesse then others which do so spoile vpon the sea where the law of nations onely is of force and no other law for saith he by that law the sea is common This manner of discoursing becommeth not Alciat but regard is to bee had whether hee that before was a robber do afterward become a lawful iust captaine which Iustine affirmeth of Aristonicus u Iustin lib 35 neare vnto him p Plin. lib. 18. c. 6. beeing better minded then Achab to Naboth to whom he said Damihi viniam quae appropinquat domui meae q 3. Reg. 21. But against such the prophet Esay pronounceth a woe Vae qui coniungitis agrum agro et domum domui r Esai 5. ver 8. But because these thinges are plaine they neede no further discourse The twelfth Chapter That the rules of Warre and Law of Nations are not to be obserued and kept with Pyrates Rebels Robbers Traytors Reuoltes and Vsurpers WIth Pyrates Rebels Robbers Traytors and Reuoltes the Law of Armes is not to be obserued and kept for they by offending haue not withdrawne themselues from publique iurisdiction c Bald. 3. cons 96. for by offending a man may not bee said to be of more price or of greater libertie then he was before d Paulus l. 63. ad leg Falc and for an other reason they may not claime aduantage by the Law of Armes because that Law springeth from the Law of Nations and such persons may not enioie the benefite of that Law to which they are enemies To these men which haue withdrawne themselues from the communion and societie of men and as Florus sayth e Flor. lib. 3. haue broken the league of mankinde how can the Law of Nations which is nothing else but the communion and league of Nations extende anie fauour Pyrates as Plinie saith are enemies to all men lyuing and therefore Cicero sayth that if thou doest not bring to Robbers or Pyrates the raunsome which thou hast promised for thy life there is neither offence nor fraudulent dealing no though thou hast promised with an oath f Plin. lib. 2. c. 46. Cicer. pro leg manil et 3. de offic Spartacus that notable roague did mooue Crassus to contract a league with him But he was with indignation reiected g Appi. in Mithrid et 1. ciuil Tacfarinas that famous robber of Affrike grew to such height of arrogancie that he sent Embassadors to Tiberius the Emperour but his armie was sharpe against him and said that Tacfarinas dealt verie reprochfully with him because hee being no better then a robber by highwaies did notwithstanding so deale with him as if hee had beene a publique or iust enemie h Tacit. Annal 3. Warre hath neuer been as Heliodorus well obserueth compounded or determined by articles or leagues with such dissolute persons but either they haue ouercomed and so suruiued or els haue been ouercome Frontinus of Viriallius x Frontin lib. 2. c. 5. and Appian of Spartacus of Apuleius who was proscribed and of Sextus Pompeius y Appia lib. 1. 4. bellor ciuil which is not so much effected by the leuying of a great armie or the increase of the same as these writers and other historians z Herodia l. 1. seeme to think but by the enioying of a good and sound title and by the maintaining of a publike cause for when Viriallius being before a robber did employ himselfe wholie for the defence of the libertie of his country he became a iust captaine and may well be said to haue borne lawfull armes for which cause the Romans did conclude peace and league with him and did likewise call him their friend So Arsaces whilest he sought to winne the crown of the kingdome of Parthia being his cuntrie from the Macedonians was when he had cōmitted many robberies pillages highted a lawfull king and Aristonicus whilest hee claimed the kingdome of Asia by right of bloud and course of succession might well be tearmed a gouernor in war and thought to haue pursued that contention which is commonly called war And so it may be noted that God himselfe would that Sampson should not moue against the Philistines without cause but so did bring to passe that from priuate occasions he should as it were by degrees ascend to a publike quarrel a Iudic. 14. but they which ground not their wars vpon a publike cause are not properly enemies though they haue armes and do terme themselues gouernors though they encounter such as be lawful gouernors and haue vnder their regiment a complete armie of soldiers he is properly an enemy which hath a court or a commōweale a treasurie power to make league peace and truce And Charles Martelle did say of the Saracens that they could not therefore cleane themselues from the fault of robbers because they went in great troopes because they had captaines tentes and ensignes b P. Emil. li. 2. sithence they had no iust cause of war which is the only warrant of bearing armes c Ceph consil 620. What shall then be said of these French men which were taken in the Portugall warre of the Spaniards and were not vsed as iust enemies the soldiers I meane of Don Antonio were handled as pirates yet the very historie doth conuince that they were not pirats for they did shew forth their kinges letters the king of France his letters whom they did serue not Don Antonio though for him they did fight d Connest l 9 but they which haue beene subiect to others are recoiled from their loyaltie of lieges becomming rebels let them beware how they send embassadors to him from whō they haue reuolted But it cannot be discerned by the law of nations which Phillip