Rule of Moral Actions obliging to that which is Right We say Obliging For Counsells and other Precepts though right yet not obliging are not called Laws and Permission properly is not the Action of Law but the Negation of that Action unless as it obligeth some other not to hinder him that is permitted We said obliging to that which is Right not simply to that which is just because it pertains not to Justice only but to other vertues The best division of Law is out of Aristotle into Natural and Voluntary III. Of Naturall Law NAtural Law is the Dictate of right Reason shewing moral turpitude or moral necessity to be in some act by its convenience or disconvenience with the Rational Nature and consequently that it is forbidden or commanded by the Author of Nature God The Acts concerning which is â—…ant â—…uch a dictate are due or unlawfull of themselves and therefore are conceived necessarily to be commanded of God or forbidden By which note this Law differs not from humane only but from the Divine vo untary which doth not command or forbid what is by it self and in its own nature due or unlawfull but by forbidding makes the thing unlawfull and by commanding makes it due For the better understanding of Natural Law we must observe some things belong unto it not properly but reduct vely viz. the things whereto the Law Natural is not repugnant So are things called just which are without in justice Sometimes also by abuse of the word the things which Reason alloweth for honest and better than the opposite although they be not due and necessary are said to be of the Law Natural Observe farther this Law is not only conversant about things not subject to human pleasure but about many things also which are consequent to the Acts of Mans Will So the Will of Man introduc'd Dominion such as is now in use But that being introduc'd the law of Nature tells me 't is wickednes for me to take away without thy consent that which is under thy dominion Moreover the Law of Nature is immutable yet somtimes it comes to pass that in the Acts determined by that Law a seeming mutation deceivs the unwary when in truth the Law of Nature is the same but the matter about which it is is changed For example If my Creditor accounts the debt I owe him as received I am not bound to pay The reason is not because the Law of Nature is become more induâ—…gent requires me not to pay what I owe But because by the indulgence of my Creditor the debt is forgiven me So if God command a person to be slain or his Goods to be taken away it will not follow that Man-slaughter or Theft is lawfull which words include a Vice but the act is not Manslaughter or Theft which is done at his command who is supreme Lord of our Lives and Goods Lastly there are some things that do not simply but in such a state of affaiâ—…s belong to Natural Law as the common use of things was natural before Dominion was introduced and before positive Laws every man had right to get his own by force IV. Of the Law of Nature and Nations AS for that distinction extant in the Roman Law-Books between the immutable Law common to other Creatures with men cal'd the Law of Nature And that which is proper to men alone usually called by them the Law of Nations it is of very little or no use For no nature that hath not the use of general precepts is properly capable of a Law If at any time Justice is attributed to the brute creatures it is improperly for that there is in them some shadow and print of reason Whether the act it self determined by the Law of Nature be common to us with other creatures as the breeding up of our Issue or proper to us as the worship of God it is not in this respect material V. The proof of Natural Law A Thing is proved to be of Natural Law two ways à priori or à posteriori That way of proof is more subtil this more popular The proof is à priori if we shew the necessary convenience or disconvenience of any thing to the rational and social nature à posteriori if though not with full certainty yet very probably we conclude that to be a point of Natural Law which is receiv'd for such amongst all or at least the most civil Nations For an universal effect hath an universal cause and of so generall an opinion there can hardly be any other cause but sense it self which is called common But I said with good reason the more civiil Nations for as the Philosopher hath it What is natural we must judge by those in whom nature is least corrupt and not by the depraved VI. Of Voluntary Humane Law THe other kind of Law is Voluntary which draws its original from the will And this is either Divine or Humane Law We begin with Humane because more known And this is either Civil or of larger extent or of less extent than Civil The Civil Law is that which proceeds from the Civil power The Civil Power is that which rules the Common-wealth And a Common-wealth is a society of Freemen united for their common benefit The Law of less extent and that comes not from the Civil power though subject to it is various conteining the precepts of Fathers Masters and such like That of larger extent is the Law of Nations i. e. which by the will of all or of many nations hath received force to oblige I adde of many because there is scarce found any Law besides the Natural which is also called the Law of Nations common unto all Yâ—…a oft-times in one part of the world there is not the same Law of Nations as in another as we shall shew hereafter This Law of Nations is proved in the same manner with the unwritten Civill Law by continual use and the testimony of skilfull men And to this purpose Historians are of singular profit VII Voluntary Divine Law VOluntary Law Divine as the words at first sound inform us is that which hath its rise from the will of God whereby it is distinguished from Natural Law that may be also as we have said entituled Divine Here hath place that indistinct saying God wills it not because 't is just but 't is just i. e. due in Law because God wills it This Law was given either to mankind or to one people thrice to mankind presently after the creation again in the restauration after the floud lastly in that more sublime restauration by Christ. All these Laws doubtless oblige all men after they have sufficient notice of them VIII That the Law given to the Hebrews obliged not other Nations THe Hebrews were the only people in all the world to whom God peculiarly gave his Laws as Moses and the Psalmist tell them And certainly
of speech I was not willing by adding a multitude of words to the multitude of matter to cloy my Reader whose Good I intended I have therefore followed as near as I could a concise and plain way of expression convenient to a Teacher that such as have a hand in publick Affairs may here behold as in one view both what Controversies are usually incident and what are the Principles whereby they may be judged which being known it will not be difficult to accommodate that which is said to the subject matter and to extend it as much as you will I have sometimes alleged the very words of antient Writers where they were such that they might seem spoken with authority or with a singular grace which I have done in the Greek too now and then but especially where either the sentence was short or whose Elegancy I could not hope to equal by my translation To conclude the Liberty I have taken to my self in judging the Sentences and Writing of other men let All I humbly intreat them into whose hands this Book shall come take the same to themselves upon me They shall not more readily admonish me of any errour than I will obey their admonition And at this instant if here be any thing spoken by me diffentaneous to piety or good manners or holy Scripture if any thing against the Consent of the Christian Church or against any Truth with all my heart I wish it never spoken I. Of the Lawfulness of War II. Of the Causes of War III. Of what is lawfull to be done in War THE CONTENTS I. PART I. WHat is War pag. 1. II. What is Law 2 III. Of Natural Law 2 IV. Of the Law of Nature and Nations 5 V. The proof of Natural Law 5 VI. Of Voluntary humane Law 6 VII Voluntary Divine Law 7 VIII That the Law given to the Hebrews obligeth not other Nations 8 IX What Arguments Christians may deduce from Moses Law and How 10 X. That War is not against the Law of Nature 12 XI Further proof out of the Sacred Historie 15 XII That War is not contrary to the Voluntary Divine Law before the time of the Gospel 17 XIII Of the Gospel-Law 22 XIV That War is not against the Gospel-Law The first Argument 25 XV. The second Argument 27 XVI The third Argument 29 XVII The fourth Argument 30 XVIII The fist Argument 31 XIX The sixt seventh and eighth Arguments 33 XX. The ninth tenth and eleventh Arguments 35 XXI Objections answered The first 37 XXII The second Objection answered 38 XXIII The third Objection answered 43 XXIV The fourth Objection answered 46 XXV The fift sixt and seventh Objections answered 48 XXVI Of the opinion of the Antient Fathers The first Observation 50 XXVII The second Observation 53 XXVIII The third Observation 54 XXIX A Confirmation of the Lawfulness of War out of the Antients 56 XXX Further proof out of Ecclesiastical Historie 58 XXXI The twelfth Canon of the Nicene Council objected and answered 60 XXXII Leo's Epistle objected and answer'd 63 XXXIII The last proofs out of Church-story 64 XXXIV That all private War is not unlawfull by Natural Law 66 XXXV Nor by the Law Evangelical Objections proposed 69 XXXVI The lawfulness of Private Defence confirmed 71 XXXVII The Objections answer'd 72 XXXVIII Publick War solemn or less solemn 76 XXXIX Of War waged by inferiour Magistrates 79 XL. Wherein consisteth Civil Power 83 XLI What Power is Highest 84 XLII That the Highest Power is nâ—… alwaies in the People 86 XLIII The same further proved 90 XLIV Arguments to the contrary answered 9â—… XLV Of mutual Subjection 9â—… XLVI Cautions for the understanding of the true opinion The first 9â—… XLVII The second Caution 10â—… XLVIII That some highest Empires are holden fully that is alienably 10â—… XLIX Some highest Empires are not holden fully 109 L. A further manifestation of the second Caution 110 LI. A third Observation 111 LII The fourth Observation 114 LIII A further explication of the last note about division of Power and mixture 116 LIV. True Examples of the Supreme Power divided 118 LV. Whether he can have Supreme Power that is comprehended in an unequal League 123 LVI An Objection answered 126 LVII Another Objection answered 129 LVIII That the Highest Power may consist with paying of Tribute 132 LIX That the Highest Power may be holden in Fee ibid. LX. The Right and Exercise of it distinguished 134 LXI Of the War of Subjects against their Superiours The question stated 135 LXII By the Law of Nature War upon Superiours as such is not ordinarily lawfull 136 LXIII Nor is it allowed by the Hebrew Law 138 LXIV Least of all by the Evangelical Law The first proof out of St. Paul 139 LXV The second proof out of St. Peter 143 LXVI Further proof from the Examples of the antient Christians 144 LXVII It is not lawfull for the Inferiour Magistrates to make Waâ—… upon the Highest 147 LXVIII In case of extreme and in evitable Necessity what may bâ—… done 149 LXIX The King's Person sacred 154 LXX of Christian Subjection 156 LXXI The famous example of the Thebaean Legion 158 LXXII In what cases Force is lawfull against a Prince 16â—… LXXIII How far we must obey aâ—… Invader of anothers Empire 16â—… LXXIV Whether it be lawfull to kill an Invader or expell him by force and in what cases 166 LXXV Who may lawfully wagâ—… War 170 II. PART I. WHat are called the Justifiek Causes of War 173 II. Three just Causes of Wars 176 III. War is lawfull in defence of life onely against an Assailant and in present certain danger 177 IV. Of the loss of a member and defence of Chastity 181 V. Defence may lawfully be omitted 182 VI. Defence is unlawfull sometimes against a Person very profitable to the Publick 183 VII It is not lawfull to kill another for to avoyd a box on the ear or the like disgrace 185 VIII In defence of Goods to kill a man is not unlawfull by the right of Nature 188 IX How far the same is permitted by the Law of Moses ibid. X. Whether and how far it is permitted by the Evangelical Law 192 XI Whether the Civil Law permitting one to kill another in his own defence give a right or onely impunity 193 XII When a single Combat may be lawfull 194 XIII Of Defence in Publick War 195 XIV It is not lawfull to take Arms to diminish a Neighbours power 196 XV. Defensive War also is unjus on his part who gave just cause oâ—… War ibid XVI The Rise and Progress of Propriety 198 XVII Some things cannot be madâ—… proper as the Sea taken for the whole or principal parts and why 204 XVIII Of things that may be made proper 205 XIX Over things made proper men have a right to use them iâ—… time of necessity and whence iâ—… comes 20â—… XX. Three Cautions to be applyed to this case of necessity 209 XXI An example of this right in Wars 210
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
States and Kings have it full what in part what with right of alienation what otherwise Last of all we had to speak of the duty of Subjects towards their Superiours The second Book expounds what are the Causes whence War may rise And there we speak of Community and Propriety Leagues Oaths Embassages Punishments c. The third Book having expounded what is lawfull in the time of War and distinguished what is done without fault from what is done without punishment ends with Arguments and Peace Now this Argument seemed the more worthy of our pains because as I have said no man hath handled the whole and they that have handled the parts have so handled them that they have left much for anothers Industry The old Philosophers have nothing extant in this kind neither the Greeks among whom Aristotle made a Book entituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nor They that gave their name to new Christianism which was much to be wished And the Books of the old Romans De jure Feciali have transmitted to us nothing of themselves but the Title I have seen also special Books De Jure Belli partly by Divines viz. Franciscus Victoria Henricus Gorichemus Wilhelmus Matthaei partly by Doctors of Law viz. Jannes Lupus Franciscus Arius Joannes de Lignano Martinus Laudensis But all these have said but very little of a most copious Argument and most of them so that without order they confounded things of Natural Law and of Divine and of the Law of Nations and of the Civil and of the Canon Law and mingled them all together What was most wanting to all these the light of Histories the most learned Faber in some Chapters of his Semestria but as it stood with the purpose of his work and alleging onely testimonies Balthazar Ayala more largely and bringing a heap of examples to some definitions have attempted to supply Albericus Gentilis yet more largely by whose diligence as I know others may and profess my self to have been helped so what may be wished in him in the kind of teaching in order in distinguishing the questions and several sorts of Law I leave to the Readers judgement This onely I will say He is wont in determining Controversies to follow either a few examples not alwaies to be approv'd or also the authority of the new Lawyers in his Answers Many whereof are framed in favour of those that consult them not to the Nature of Right and Good The Causes whence War may be called just or unjust Ayala hath not touched Gentilis hath as it pleased him delineated some general heads and hath not so much as touched many places of both noble and frequent Controversies We have endeavour'd to speak of all shewing also the fountains whence it may be easy to define what we have here omitted It remains now that I declare briefly with what aids and with what care I set upon this business First my Care hath been to refer the proofs of things pertaining to the Law of Nature unto Notions so certain that no man without offering violence to himself may be able to deny them For the principles of that Law if you mark them well are open and evident of themselves even after the manner of things perceived by our outward senses which if the organs be well formed and other necessaries be present do not deceive Therefore Euripides in his Phaenissae makes Polynice whose cause he will have to be manifestly just speak thus T is plain and grounded on good right To th' rude and learned clear as light And presently he adds the judgement of the Chorus which consisteth of Women and those Barbarians in approbation of her speech I have also used to the proof of this Law the testimonies of Philosophers Historians Poets and lastly Oratours not that we must give credit to them without difference for they are wont to serve their Sect Argument Cause but that where many in divers times and places affirm the same thing for certain it ought to be referr'd to an universal Cause which in our questions can be no other than either right Illation proceeding from the principles of Nature or some Common Consent That shews the Law of Nature This the Law of Nations The Difference of which Laws is to be conceived not from the testimonies themselves for Writers do commonly use the words Law of Nature and of Nations promiscuously but from the quality of the Matter For that which cannot by sure consequence be deduced out of sure principles and yet appears every where observed must needs have its rise from free will and consent These two therefore I have still been very carefull to discern one from the other and both from the Civil Law Yea in the Law of Nations also I have distinguisht what is truly and in every respect Right and what onely brings forth a certain external effect like unto that Primitive Right viz. that it may not be resisted or also that every where for some Commodities sake or the avoyding of great incommodities it must be defended Which observation how necessary 't is to many things will appear in the contexture of the Work it self Among Philosophers Aristotle deservedly obtains the principal place whether you consider the order of his discoursing or the acuteness of his distinguishing or the weight of his Reasons Only I wish that Principality had not for some Ages gone into Tyrannie so that Truth to which Aristotle was 〈◊〉 faithfull servant is opprest by nothing more than by the name of Aristotle For my part both here and elswhere I imitate the liberty of the Antient Christians who were sworn to no Philosophers sect not that they did assent to them who said Nothing could be known than which nothing is more foolish but that they judged no sect had seen all Truth and not any but had some Wherefore to gather up Truth dispersed among them all and diffused into Sects into a Body This they thought was indeed to deliver Christian Institutions Our purpose is to magnifie Aristotle but with that liberty which He in love of Truth indulged to himself towards his own Masters Histories have a two-fold use as to our Argument For they supply us with Examples and with Sentences The Examples have so much the more authority as the times and Nations are more virtuous therefore we have preferred the old Greek and Roman above the rest Nor are the Sentences or Judgements of Historians to be contemned especially when they are agreeing for the Law of Nature as we have said is in some sort proved thence and the Law of Nations cannot be proved otherwise Sentences of the Poets and Orators have not so much solidity and we use them oft not so much for proof as ornament I do often use the Authority of the Books either written or approved by Men inspir'd of God making a difference 'twixt the old Law and the new Some do urge the Old Law for the very Law of
XXII Another right of men over things proper without damage to the Owner 211 XXIII The right of Passages explained by Land and Water 212 XXIV Of passage for merchandise and of impost 215 XXV The right of staying for a time of inhabiting and having desert places 218 XXVI Of Oaths How great their virtue is even in the opinion of Pagans 220 XXVII In an oath is required a deliberate mind 222 XXVIII In what sense the words of an Oath bind 223 XXIX An Oath deceitfully procured when binding Of Josua's oath 226 XXX The words of an Oath not to be extended too far 228 XXXI An Oath binds not being made of unlawfull Matter 229 XXXII Or which hinders a greater moral Good 230 XXXIII Of Oaths about things impossible 231 XXXIV In Oaths God is named and in what sense ibid. XXXV In Oaths also other things are named with respect to God 232 XXXVI Of swearing by false Gods 234 XXXVII The Effect of an Oath 235 XXXVIII When an Oath gives 〈◊〉 right to God and Man when 〈◊〉 God alone ibid. XXXIX Of an Oath to a Pyrat oâ—… to a Tyrant 236 XL. Of an Oath to one that is perfidious 238 XLI Of the Heir's obligation ibid. XLII Two cases wherein the Obligation ceaseth 239 XLIII Of that which is done againâ—… ones Oath 240 XLIV What Superiours can do about the Oaths of their Subjects ibid. XLV What Oaths are properly meanâ—… in the charge of Christ against swearing 242 XLVI Of Faith given without an Oath 245 XLVII Of Leagues They are lawfull with Aliens from true Religion by the Law of Nature 246 XLVIII They are not universally forbidden by the Hebrew Law ibid. XLIX Nor are they forbidden by the Evangelical Law 252 L. Cautions about such Leagues 255 LI. All Christians are obliged to joyn in League against the Enemies of Christianism 256 LII If divers Confederates wage war which is to be aided 257 LIII Of the Dissolution of a League 258 LIV. Of Interpretation 259 LV. How words of art are to be interpreted 261 LVI Interpretation by Conjecture 262 LVII Some Distinctions and Rules for interpretation 263 LVIII Whether in the name of Confederates are contained those that shall be so 266 LIX One shall not wage war without leave of the other How understood And That Carthage shall be free 268 LX. Of Agreements Personal and real 269 LXI A League made with a King is extended to him being expelled not to the Invader 272 LXII To whom a promise made to the First is due when more have performed a thing together 273 LXIII How far States are accountable for damages done by their Subjects 274 LXIV Of the right of Embassages 276 LXV Among whom the right of Embassages hath place ibid. LXVI Whether an Embassage be alwaies to be admitted 278 LXVII Of not violating Embassadours 280 LXVIII The Law in favour of Embassadours binds not him to whom he is not sent 286 LXIX An Enemy to whom an Embassadour is sent is bound 288 LXX Embassadours may not be wronged by way of retaliation 289 LXXI The Companions also of Embassadours and their Goods are inviolable 290 LXXII The Right of Embassadours vindicated by War 293 LXXIII Of the right of Burial It springs from the same Law of Nations 293 LXXIV What was the first Cause of this Custom 296 LXXV Burial is also due to publick Enemies 301 LXXVI Whether burial be due to notorious Malefactors 302 LXXVII Whether it be due to those that have kill'd themselves to the sacrilegious and traiterous 304 LXVIII Of Punishments The definition of punishment and the Original 309 LXXIX Who should punish an evil-doer 311 LXXX Of the End of punishment 312 LXXXI In what sense Revenge is naturally unlawfull 314 LXXXII The Utility of Punishment is three fold 317 LXXXIII Of punishing a Delinquent for his own benefit 318 LXXXIV Of Punishment for his profit who is offended and of Revenge by the Law of Nations 320 LXXXVI The End of Punishment is also the profit of all 325 LXXXVII What the Evangelical Law hath constituted about this matter 328 LXXXVIII An Objection taken from Gods mercy in the Gospel answered 334 LXXXIX Another Objection answered about precision of Repentance 335 XC Three Inferences from the former Doctrine 337 XC Whether humane Laws that permit the killing of some men give the killers a true right before God or only impunity among men 339 XCII What acts are not punishable by men 340 XCIII That it is lawfull to pardon both before and after the penal Law 344 XCIV Causes of freeing one from punishment of Law 348 XCV Of war for punishment and whether war be just for Offences begun 350 XCVI War for violation of Natures Law 352 XCVII Three Cautions to be observed 356 XCVIII Whether war may be undertaken for Offences against God 358 XCIX Four most common principles of Religion 362 C. The first violators of these may be punished 365 CI. Wars are not justly made against them that will not embrace Christian Religion 370 CII Justly against them that deal cruelly with Christians onely for Religions sake 373 CIII Not against them who are mistaken in the sense of Scripture 375 CIV Justly are they punisht that are irreverent to the Gods they own 379 CV Of Communication of Punishment How it passeth to partakers of the fault 380 CVI. The Community or Rulers are engaged by their subjects fault if they know and do not forbid it when they ought 381 CVII Likewise if they receive them that have offended elswhere unless they punish them or yield them up 384 CVIII Whether the persons yielded up and not receiv'd remain Citizens 387 CIX That the rights of Suppliants belong to the miserable not to the guilty with the exceptions 388 CX How Subjects are partakers of the faults of their Rulers or parts of the whole and how their punishments differ 392 CXI How long the right of punishment lasts against a Community 394 CXII Whether the punishment may pass without communication of the fault Two distinctions here needfull 396 CXII None is justly punished in propriety of speech for anothers fault 400 CXV Of unjust Causes Causes of War some are justifiable others suasory 407 CXVI Wars without any cause are wild and brutish 409 CXVII Against wars which have not justifick causes or not truly such 409 CXVIII Fear of an uncertain danger no just cause of War 411 CXIX Of some other unjust causes 413 CXX Of the title of universal Emperour 415 CXXI Of the Empire of the Church 417 CXXII Of a desire to fulfill prophecies 420 CXXIII Of that which is due not by strict justice but otherwise 421 CXXIV A distinction of War unjust in respect of the cause or of some accident ibid. CXXV Of doubtfull cases Whence doubts do arise in moral matters 423 CXXVI Nothing is to be done against ones own judgement though crring 424 CXXVII How the judgement is drawn either way 425 CXXVIII In doubtful cases the safer way is to be taken Three waies to
avoyd a doubtfull war 426 CXXIX Whether war may be just on both sides 432 CXXX Admonitions For the eschewing of war Right is often to be remitted 434 CXXXI Punitive right especially is to be remitted 4â—…6 CXXXII Again of the remission of punishment 438 CXXXIII War is to be declined in favour of our selves and our own party 440 CXXXIV Rules of prudence about the election of good 442 CXXXV An example of a debate about Liberty and Peace 444 CXXXVI He that is not much the stronger ought to remit punishment 447 CXXXVII War not to be undertaken but upon necessity or upon greatest cause with greatest opportunity 448 CXXXVIII The evils of War 449 CXXXIX Of War for others And first for Subjects And whether an Innocent person may be yielded up 451 CXL War may also be undertaken justly for Confederates for Friends yea for all men 455 CXLI Whether man is bound to defend man and one people another 457 CXLII Whether War be just to relieve the Subjects of Another 458 CXLIII Concerning Souldiers of Fortune 461 CXLIV Of just Causes that War may be waged by those that are under others command Who they are and what they should do where they are left free 462 CXLV What they should do when they are commanded to war and believe the cause of the war to be unjust 463 CXLVI What they should do when they are in doubt 466 CXLVII Such are to be dispensed with upon payment of extraordinary tribute 471 CXLVIII When the Arms of Subjects are just in an unjust War 472 III. PART I. HOw much is lawfull in War General Rules First things are lawfull in war which are necessary to the end 475 II. The second Rule Right is consider'd not onely in respect of the first but after-causes 477 III. The third Rule Something 's follow without injury which could not be lawfully intended 478 IV. What is lawfull against them that send things to the Enemy 480 V. Whether it be lawful to use Guile in war 483 VI. Guile in the negative act is not unlawfull 485 VII Guile in the positive act when lawfull 486 VIII Whether Guile by acts signifying by agreement be lawfull The difficulty of the question 490 IX Not all use of speech which may be known will be taken in another sense is unlawfull 492 X. The form of a Lye as it is unlawfull consists in its repugnance to the right of Another 494 XI Five illations thence about the lawfulness of speaking false 497 XII False-speaking whether lawfull toward Enemies 500 XIII This is not to be extended to promising words nor to Oaths 504 XIV It is more grievous and agreeable to Christian simplicity to abstain from false speech also against an Enemy 505 XV. It is not lawfull to make a Traitor it is to use him 508 XVI Goods of Subjects bound for the Rulers debt Naturally none is bound for anothers debt but the Heir 509 XVII By the Law of Nations Subjects are tyed for the debts of the Ruler 511 XVII An example hereof in the apprehension of men and of goods 513 XVIII Of Reprizals after right denied Life is not engaged 514 XIX A distinction in this matter 'twixt the Law Civil and the Law of Nations 516 XX. Of just and solemn war by the Law of Nations Between whom this war is and That it must be denounced 518 XXI In denouncing war what is of the Law of Nature what proper to the Law of Nations 522 XXII War proclaimed against any one includes his Subjects and Adherents But not as considered by themselves 526 XXIII The cause why Denuntiation is requisite to some effects which are not found in other wars 527 XXIV War may be indicted and waged together War indicted for violation of Embassadors 529 XXV The right of killing Enemies in a solemn VVar. The effects of that War in general 530 XXVI Lawfull is distinguisht into that which is done without punishment and that which is done without fault 531 XXVII The effects of solemn war generally considered are referr'd to the latter sense of lawfull in respect of impunity And why such effects were introduced Testimonies 534 XXVIII Of Strangers found in an Enemies Country 537 XXIX The Enemies Subjects may every where be offended This right extends to Infants and VVomen to Captives and such as yield themselves without Conditions 538 XXX That right ill referr'd to other causes It reacheth also to Hostages 542 XXXI By the Law of Nations it is forbidden to kill with poyson Of poysoning weapons and waters 544 XXXII Whether it be against the Law of Nations to use Murtherers 547 XXXIII Of ravishing of VVomen in war 551 XXXIV Of VVast The Enemies Things may be spoyled 553 XXXV Of spoyling things sacred and religious 554 XXXVI About acquisition of things taken in war What is the Law of Nature what of Nations 558 XXXVII When moveable Goods are by the Law of Nations judged taken when Lands 562 XXXVIII Things that are not the Enemies are 〈◊〉 acquir'd by War Of Goods found in the Enemiâ—… Ships 564 XXXIX By the Law of Nations the things are madâ—… ours which our Enemies took from others by war 565 XL. Of the right over Captives Their condition anâ—… the reason of it 567 XLI This right over Captives prevailed not among 〈◊〉 Nations nor doth it prevail among Christians 570 XLII Of Empire over the Conquered 571 XLIII Admonitions about things done in an unjuâ—… War 575 XLIV A Temperament about the right of killing iâ—… a just VVar. General Rules 581 XLV Children Women Old Men Priests Scholars Husbandmen are to be spared 589 XLVI Captives and they that yield are not to bâ—… killed 594 XLVII Objections answered 59â—… XLVIII The Multitude spared Hostages spared Needless Fights to be avoyded 601 XLIX A Temperament about VVast and the like What Wast is just when not to be made 604 L. Things sacred and religious are not to be spoyled 611 LI. The Utilities of Moderation 615 LII A Temperament about things taken 618 LIII A Temperament about Captives 621 LIV. A Temperament about acquisition of Empire 631 LV. Restitution of things unjustly taken away Questions answer'd 641 LVI Of Neuters in VVar. How they are to be used and how to behave themselves 645 LVII Of things done privately in publick VVar. 650 LVIII Admonitions touching Faith and Peace Conclusion 657 HVGO GROTIVS OF WARRE AND PEACE I. PART I. What is War WAR is the State of those that contend by Force as they are such Which generall Description comprehends all sorts of War that we shall speak of For I exclude not here the Private which indeed hath priority and without question hath the same nature with the Publique and therfore may properly be denoted by the same word But if the name of War beat any time given only to the Publique it is as many other generall words are often applied particularly to that Species that is most excellent II. What is Law LAW taken in the largest sense is a
had not been introduced for life members liberty would yet be proper to every one and therefore could not without injury be invaded by any other And to make use of what is common and spend as much as may suffice nature would be the right of the occupant Which right none could without injury take away This is more plain since by Law and use Dominion is established which I will express 〈◊〉 Tullies words If every member shoulâ—… think to gather more strength by drawing to it self the strength of the member next it the whole body must needs 〈◊〉 weakned and destroyed So if every one of us snatch unto himself the commodities of other men and draw away from every one what he can to advantage himself humane society cannot stand Nature gives leave to every man in the acquisition of things usefull to supply himself before another but by the spoili of another to encrease his own store that nature doth not permit It is not then against society to provide for one self so that anothers right be not diminished nor is that violence unjust which doth not violate the right of another as the same Author saith Of the two kinds of contention by debate and by force the one agreeing to men the other more becoming beasts we must fly unto the later when the former will not serve And elsewhere What is there that can be done against force but by force Ulpian saith Cassius writes that it is by nature lawfull to repell force by force and arms by arms XI Further proof out of the sacred History that all War is not against the Law of Nature THis is further proved out of the sacred History For when Abraham having armed his servants and friends pursued the four Kings that had spoiled Sodom and returned with victory God by his Priest Melchizedeck approv'd his action Blessed be the most high God said Melchisedeck who hath deliver'd thine enemies into thine hand Abraham as appears by the story had taken Arms without any special commission from God therefore the Law of Nature was his warrant whose wisdom was no less eminent than his sanctity even by the report of aliens namely of Berosus and Orpheus The History of the seven Nations whom God gave up to be destroyed by the hand of Israel I shall not use because there was a special mandate to execute Gods judgement upon people guilty of the greatest crimes Whence in the Scripture these VVars are properly called the VVars of God undertaken by his command not by humane Counâ—…el It is more pertinent that the Hebrews under the conduct of Moses and Joshua when they were opposed by the Amalekites repulsed them by Armies The Action was not set upon by Gods command yet was it approved by him after it was done Moreover God hath prescribed to his people general and perpetual Laws of waging VVar thereby shewing VVar may be just even without his special mandate For he doth plainly distinguish the cause of the seven Nations from the cause of other people and prescribing nothing about the just causes of entring into VVar thereby shews them to be manifest enough by the light of nature as tâ—…e cause of defending the frontiers in the VVar of Jephtha against the Ammonites and the cause of Embassadors violated in the VVar of David against the same It is also to be noted which the divine writer to the Hebrews saith that Gedeon Baruc Sampson Jephtha David Samuel and others by Faith overthrew Kingdoms prevailed in VVar put to flight the Armies of Aliens Where in the name of Faith as we learn by the series of that discourse is included a persuasion whereby is believed that the thing done is pleasing unto God So also the wise woman saith of David that he fought the battails of God that is pious and just XII That War is not contrary to the voluntary Divine Law before the time of the Gospell THe greatest difficulty lies in this point concerning the positive Divine Law Nor may any object the Law of Nature is immutable and therefore nothing could be constituted by God to the contrary for this is true in things commanded or forbidden by the Law of Nature not in things permitted only which things being not properly of the Law of Nature but without it may be either forbidden or commanded First then against VVar is brought by some that Law given to Noah and his posterity And surely saith God Your blood of your lives will I require at the hand of every beast will I require it and at the hand of man at the hand of every mans Brother will I require the life of man Who so sheddeth mans bloud by man shall his blood be shed for in the image of God made he man Here do some most generally understand that which is said of requiring blood and what is said of shedding blood for blood they will have to be a commination not an approbation I can allow of neither for the prohibition not to shed blood is not of larger extent than that in the Law Thou shalt not kill and this 't is manifest hath neither taken away capitall punishments nor VVars VVherefore both this Law and that doth not so much constitute any new thing as declare and repeat the old naturall Law obliterated and depraved by evill custom And the words are to be understood in a sense which includes a crime as in the worâ—… homicide we understand not every killing of a man but that which is on purpose and of an innocent person The which follows of shedding blood for blood seems to me not to contain a naked act but a Right I explain it thus By nature it is not unjust that every one suffer as much evill as he hath done 〈◊〉 of a sense of this naturall equity 〈◊〉 accus'd of paricide by his own conscience said Whosoever findeth me she flay me But God in those first times either by reason of the paucity of men or because there being yet but few offenders exemplary punishments were 〈◊〉 necessary repressed by his edict thâ—… which seemed naturally lawfull and appointed the manslayers company to be avoided not his life taken away The like was decreed by Plato in his Laws and of old practized in Greece Pertinent is that of Thucydides Antiently great crimes had little punishments but in progress of time those being contemned death was inflicted From one notable act a conjecture being made of the divine pleasure went into a Law so that Lamech also upon the like crime committed promised to himself impunity from that example Nevertheless when before the floud in the Gyants age a promiscuous licence of shedding blood had prevailed mankind being again restored after the floud God to restrain that licence thought it meet to use more severity and laying aside the lenity of the former times permitted now what nature did before dictate not to be
the second For as an Infant King hath right but cannot exercise his power so also one of an alienated mind and in captivity and that lives in the territory of another so that freedome of action about his distant Empire is not permitted him for in all these cases Curators or Vicegerents are to be given Therfore Demetrius when being in the power of Saleucus he was under some restraint forbad any credit to be had either to his seal or letters but appointed all things to be administred as if he had been dead LXI Of the war of Subjects against their Superiors The question stated WAr may be waged both by private men against private as by a traveller against a robber and by those that have the highest power against those that have it likewise as by David against the King of the Ammonites and by private men against those that have the highest power but not over them as by Abraham against the King of Babylon and his neighbors and by those that have the highest power over private men either subject to them as by David upon the part of Isboseth or not subject as by the Romans against the pirats Only the question is whether it be lawfull for private or for publique persons to make war upon them under whose power whether supreme or subordinate they are And first that is beyond all controversy Armes may be taken against inferiors by those who are armed by authority of the Highest power as Nehemias was armed by the Edict of Artaxerxers against the neighboring Governours So the Roman Emperors grant leave to the Lord of the soil to force away the Camp-measurers But it is inquir'd what is lawful against the Highest Power or the Lower Powers doing what they doe by authority of the Highest That 's without controversy amongst all good men If they command any thing contrary to naturall right or to the divine precepts what they command is not to be done For the Apostles when they said we must obey God rather than men appealed to a most certain rule written in all mens minds which you may finde almost in the same words in Plato but if for any such cause or otherwise because it is the pleasure of the Soveraign injury be offerd us it is to be sufferd with patience rather than resisted by force LXII By the law of Nature war upon Superiors as such is not ordinarily lawfull ALl men indeed naturally as we have said above have right to keep off injury from themselves But Civil society being ordained for the maintenance of tranquillity thereupon ariseth presently to the Commonwealth a certain greater right over us and ours so far as it is necessary to that end The Commonwealth therefore may for publicque peace and order prohibite that promiscuous right of resisting and no doubt is to be made of the will thereof when without that the end cannot be attained For if that promiscuous right of resisting continue it wil not be now a Commonwealth but a dissolute multitude such as were the Cyclops of whom Euripides saith Every one gives lawes to his wife and children and A confused company where every one commands and none obeyes And the Aborigines who as Salust relates were a savage kind of people without laws without rule disorderly and dissolute and the Getulians of whom he speaketh in another place that they were not govern'd neither by customes nor by the Law or command of any Ruler The manners of all Commonwealths are so as I have said It is a general agreement of human society saith Augustin to obey Kings To the Prince saith Tacitus have the Gods given supreme power to the subjects is left the glory of obedience Hic quoque Indigna digna habenda sunt Rex quae facit Aequum atque iniquum Regiiimperium feras Seneca Add that which is in Salust To doe what he will without punishment that is to be King Hence it is that every where the Majesty that is the dignity whether of a people or of One that hath the highest power is defended by so many Lawes by so many punishments which dignity cannot consist if the licence of resisting do remain A Soldier who hath resisted his Captain willing to chastise him if he hath laid hold on his rod is cashierd if he purposely break it or laid violent hand upon his Captain dyes And in Aristotle it is If one that beareth office beateth any man he must not lift up his hand against him LXIII Nor is it allowed by the Hebrew Law IN the Hebrew Law he is condemned to death who is disobedient either to the High Priest or to him who is extraordinarily appointed by God to be Ruler of the people That which is in Samuel of the Kings right plainly appeares to him that looks rightly on it neither to be understood of true right that is of a faculty to do a thing honorably and justly for a far other manner of life is prescrib'd the King in that part of the Law which declares his office nor to signify a naked fact for there would be nothing peculiar in it sith also private men are wont to do injuries to private men but a fact which hath some effect of right that is an obligation of non-resistence Wherefore it is added that the people opprest with these injuries should cry to God for help to wit because no human remedies remained So then is this called right as the Pretor is said reddere jus to do right even when he determineth unrightly LXIV Least of all by the Evangelical Law The first proof out of S. Paul IN the new Covenant Christ commanding to give to Caesar the things that are Caesars would have the disciples of his institution understand that no less if not greater obedience with patience if need be is due to the Highest Powers than the Hebrews owed to the Hebrew Kings which his best Interpreter Paul the Apostle explaining more at large and describing the duties of subjects amongst other words hath these Whosoever resisteth the power resisteth the ordinance of God and they that resist shall receive to themselves damnation He addes For he is the Minister of God to thee for good And again Wherefore ye must needs be subject not onely for wrath but also for conscience sake In subjection he includeth a necessity of not resisting nor that onely that springs from fear of a greater evill but that flowes from the very sense of our duty and obligeth us not to men only but to God He addes two reasons First because God hath approved that order of ruling and obeying both of old in the Hebrew Law and now in the Gospell wherefore the publique powers are to be so esteemed by us as constituted by God himself For we make those things ours which we grace with our authority Second because this order serves to our good But one may say to suffer injuries
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
it could not be foreseen whether they would prove evill men and besides it cannot be avoided but we must imploy such otherwise no Army can be raised Neither are Kings to be accused if their soldiers either by land or sea wrong their confederates contrary to their command as appears by the testimonies of France and England Now that any one without any fault of his own should be engaged by the fact of his Ministers is not a point of the Law of Nations by which this controversy is to be judged but of the Civil Law nor this general but introduc'd upon peculiar reasons against seafaring men and some others And on this side sentence was given by the Judges of the supreme Auditory against certain Pomeranians and that after the example of things iudged in a case not unlike two Ages before LXIV Of the right of Embassages AMong the Obligations which that Law of Nations which we call voluntary hath by it self introduced a principal head is of the right of Embassages For we frequently read of the sacred privileges of Embassages the sanctimony of Embassadors the right of Nations right divine and human due unto them and many such like expressions Cicero de Haruspicum responsis My judgment is that the right of Embassadors is secured both by the safeguard of men and also by the protection of Law divine Therefore to violate this is not only unjust but impious too by the confession of all saith Philip in his epistle to the Athenians LXV Among whom the right of Embassages hath place HEre we must know whatever this right of Nations be it pertains to those Legats which are sent from supreme Rulers by one to another For besides them Provincial Legats and Municipal and others are directed not by the Law of Nations which is between one Nation and another but by the Civil Law An Embassador in Livy calls himself the publike messenger of the Roman people In the same Livy elswhere the Roman Senat saith The right of Legation was provided for a foreiner not a Citizen And Cicero that he may shew Legats are not to be sent to Antonius saith For we have not to do with Annibal an enemy of the Commonwealth but with one of our own Country Who are to be accounted foreiners Virgil hath so expressed that none of the Lawyers can more clearly That I suppose a forein Land Which is not under our Command They then that are joind in an unequal league because they cease not to be in their own power have a right of Legation and these also who are partly subject partly not for that part wherein they are not subject But Kings conquerd in a solemn war and deprived of their Kingdom with other Royalties have loft also the right of Legation Therefore did P. Aemilius detein the Heralds of Perseus whom he had conquer'd Yet in Civil wars necessity sometimes maketh place for this right beside the rule as when the people is so divided into equal parts that it is doubtfull on which side the right of Empyre lyeth or when the right being much controverted two contend about succession into the Throne For in this case one Nation is for the time reckoned as two So Tacitus charged the Flavians that in the Civil rage they had violated in respect of the Vitellians that right of Legats which is sacred even amongst forein Nations Pirats and Robbers that make not a Society cannot have any succour from the Law of Nations Tiberius when Tacfarinas had sene Legats to him was displeas'd that a traitour and plunderer us'd the manner of an enemy as Tacitus hath it Nevertheless sometimes such men faith being given them obtain the right of Legation as once the Fugitives in the Pyrenean Forest LXVI Whether an Embassage be alwayes to be admitted TWo things there are concerning Embassadors which we see commonly referrd to the Law of Nations first that they be admitted next that they be not violated Of the former is a place in Livy where Hanno a Carthaginian Senator inveighs against Annibal thus Embassadors coming from our Confederates and on their behalf our good General admitted not into his camp but took away the right of Nations Which yet is not to be understood too crudely for the Law of Nations commandeth not that all be admitted but forbiddeth them to be rejected without cause There may be cause from him that sendeth from him that is sent from that for which he is sent Melesippus Embassador of the Lacedemonians by the Counsel of Pericles was dismist out of the bounds of Attica because he came from an armed enemy So the Roman Senate said they could not admit the Embassage of the Carthaginians whose Army was in Italy The Achaians admitted not the Embassadors of Perseus raising war against the Romans So Justinian rejected the Embassy of Totilas and the Goths at Urbin the Orators of Belisarius And Polybius relates how the messengers of the Cynethenses being a wicked people were every where repulsed An example of the second we have in Theodorus call'd the Atheist to whom when he was sent unto him from Ptolomaeus Lisimachus would not give audience and the like hath befallen others because of some peculiar hatred The third hath place where the cause of sending either is suspected as that of Rabshake the Assyrian to disturb the people was justly suspected by Hezekia or not honourable or unseasonable So the Etolians were warned by the Romans that they should send no Embassy without permission of the General Perseus that he should not send to Rome but to Licinius and the Messenges of Iugurtha were commanded to depart Italy within ten days except their comming were to deliver up the Kingdom and the King As for those assiduous Legations which are now it use they may with very good right be rejected for the no-cessity of them appears by the ancient custom whereto they are unknown LXVII Of not violating Embassadors OF not violating Embassadors is a more difficult question and variously handled by the most excellent wits of this Age. And first we must consider of the persons of Embassadors then of their Train and their Goods Of their persons some think thus that by the Law of Nations onely unjust force is kept from the bodyes of Embassadors for they conceive priviledges are to be understood by Common right Others think force may not be offerd to an Embassador for every cause but on this ground if the Law of Nations be broken by him which is a very large ground for in the Law of Nations the Law of Nature is included so that the Embassador may now be punisht for all faults except those which arise meerly out of the Civil Law Others restrain this to those Crimes which are done against the State of the Common-wealth or his Dignity to whom the Embassador is sent Which also some hold perillous and would have complaint made
of life The Persians it seems were of the same opinion whose King Dartus saith in the Historian I had rather dy by anothers crime than by my own Upon this ground the Hebrews said to dy was to be dismist as we may see not only Lu. 20. 29. but also in the Greek version Gen. 25. 2. Numb 20. in fine A phrase us'd by the Grecians too Themistius de anima They say a man that dyes is dismist and death they cal a departure or dismission In Plutarch's consolation the word is used in the same sense Until God himself dismiss us Yet some of the Hebrews concerning the Law of not Killing himself except one case as an honorable exit if one see he is like to live to the reproch of God himself For because they hold not we our selves but God hath power over our life as Josephus rightly instructed his soldiers they think a presumtion of the will of God is that alone which may perfect the resolution of anticipating death And to this they refer Samson's example who saw true Religion exposed to contempt in the sport made with him and Saul's who fell upon his sword that he might not be mocked by God's and his enemies For they suppose he repented after Samuel's ghost foretold him of his death which though he knew would come to pass if he did fight he nevertheless declined not the battail for his Country and the Law of God and thence got eternal honour even by David's Elogy who also gave to them that honorably buried Saul's body a testimony of their wel-doing There is a third example of Razes a Jerusalem Senator in the history of the Maccabees Moreover in the Christian history we read like examples of them that dyed by their own hands lest by the force of torments they should be compeld to forswear the Christian Religion and of Virgins who that they might not lose their virginity cast themselves into the river whom also the Church hath listed in the noble Army of Martyrs But yet of these it is worth our paines to see what Austins opinion is Another exception also I see obtained among the Greeks opposed by the Locri to the Phocenses That it is a common custom among all the Greeks to cast away sacrilegious persons unburied And so Dion Prusaeensis saith the impious and prophane are denyed burial The same at Athens was constituted against Traitors as Plutarch relates But to return to my purpose for sepulture denyed the antients with great consent have judged war may justly be undertaken as appears by the foremention'd history of Theseus handled by Euripides in his supplices and by Isocrates in the place alleged LXXVIII Of Punishments The Definition of punishment and the original FActs which are the causes of war are considerd two ways as they are to be repair'd or as they are to be punish'd This later part which is of punishments is the more diligently to be handled by us because the original and nature thereof not well understood hath given occasion to many errors Punishment in general is the evil of passion which is inflicted for the evil of action For though certain works are wont to be imposed upon some by way of punishment yet those works are to be consider'd only as troublesome and therefore are to be referrd to passions And the incommodities sufferd by some by reason of a contagious disease or a maimed body or other impurities such as are many in the Hebraw Law to wit to be kept from assemblies or functions are not properly punishments although for a certain similitude and abusively they are called so Now among the things which nature it self dictates to be lawful and not unjust this is one that he who hath done evil should suffer evil which the Philosophers call a most ancient and Rhadamanthean Law Pertinent is that saying of Plutarch Justice accompanieth God to punish them that transgress the Law Divine which all we men by nâ—…ture use against all men as fellows Plato said Neither God nor man will say that an offender ought not be punisht And Hierax by this as the noblest part defined Justice an exacting of punishment from offenders What we have said that punishment properly so named must be renderd to some offense this is also noted by Augustin All punishment saith he if it be just is the punishment of sin Which is to be understood of those punishments too that God inflicteth though in them sometimes by reason of human ignorance as the same Father speaketh the sin is secret where the punishment is not secret LXXI Who should punish an Evil-doer REason dictates that an evil-doer may be punished not who should punish him but that nature sufficiently sheweth it is most convenient to be done by him that is superior yet doth it not demonstrate this to be necessary except superior be taken in that sense that the evil-doer be thought to have made himself thereby inferior to any other and to have as it were degraded himself from the order of men into the number of beasts subject to man as some Divines have determined Democritus By nature it is ordaind that the better command the worse And Aristotle saith the worse are provided for the use of the better as well in naturals as artificials It follows hence that at least a guilty person ought not to be punisht by another equally guilty to which purpose is that sentence of Christ Whosoever of you is without sin such a sin let him throw the first stone Which he therefore spake because in that age the manners of the Jews were most corrupt so that they who would seem most pure were in the mire of Adultery and such like crimes as we may perceive Ro. 2. 22. The same that Christ had said the Apostle said also Therefore thou art inexcusable O man whosoever thou art that judgest for wherein thou judgeâ—… another thou condemnest thy self for thâ—… that judgest dost the same things Thâ—… of Seneca is pertinent The sentence 〈◊〉 have no authority where he that judgeth is to be condemned And elswhere The respect of our selves will make us more moderate if we consult our selves whether we also have not committed the like Ambrose in the Apology of David Whosoever will judge of another in him judge of himself first neither let him condemn lesser faults in another when himself hath committed greater LXXX Of the end of punishment NOcent persons are not injurd if they are punished yet doth it not thence follow that always they must be punished Nor is it true For both God and and men forgive many things to many nocent ones and are praised for it Famous is that saying of Plato which Seneca turnes to this effect No wise man inflicteth punishment because a fault is done but that it may be done no more For things past cannot be revoked the future
all vicious acts are such that they may be punished by men Certainly all are noâ—… such For first acts meerly internal though by some chance to wit by confession afterward they may come 〈◊〉 knowledge of others cannot by men be punisht because as elswhere we have said it is not agreeable to human nature that from acts meerly internal any right among men or obligation should arise And in this sense is to be taken that in the Roman Laws No man is punishable for his thought Nevertheless internal acts as they have influence into external come under estimation not of themselves properly but of the acts external which do thence receive the quality of their merit Secondly men cannot punish acts inevitable to human nature For although it cannot be sin which is not done freely yet from all sin altogether and always to abstain is above human condition Whence among the Philosophers Sopater Hierocles Seneca among the Jews Philo among the Historians Thucydides many among the Christians have delivered That it is natural to man to sin If he must be punished saith Seneca whosoever is of an evil and maleficent nature every one must be punished And Sopater If one punish men as those that may be void of all sin be exceeds the measure of that correction which is according to nature which Diodorus Siculus saith is to be injurious to the common imbecillity of mankind elsewhere to be unmindful of human infirmity The forementiond Sopater saith Smal faulti and of daily incursion are to be dissembled Yea it may be doubted whether these may rightly and properly be called sins when the liberty which in spâ—…cie they seem to have considerd in their generality they have not Plutarch in his Selon A Law must be framâ—…d according to that which is possible if one will punish a few profitably not many to no purpose Some things also are inevitable not to human nature simply but to this person at this time by reason of the body's temper passing into the mind or of an old custom which yet is wont to be punisht not so much for it self as for a precedent fault because either remedies were neglected or diseases in the mind voluntarily contracted Thirdly sins are noâ—… to be punishâ—… which do neither directly nor indirectly respect human society or another man The reason is because there is no reason why these sins should not be left to be punished by God who is most wise to know them and most righteous to weigh them and most powerfull to avenge them Wherefore such punishment would be executed by men without any utility and so not rightly Here are to be excepted punishments emendatory which have this for their cause that the offender may be bettered though haply it concern not other men Moreover punishable are not acts opposed to vertues whose nature refuseth all coaction in which kind are mercy liberality gratitude Seneca handles this question Whether the vice of an ungrateful man ought to be unpunished and brings many things to the purpose but this especially which may be extended to other like qualities When as it is a most commendable thing to make requital of a benefit it ceaseth to be commendable if it be necessary that is it loseth that excellent degree of praise as the following words do shew for one will not more praise a gratefull man than him that restores a thing committed to his trust or payes what he owed without a sute A little after T is no glory to be gratefull were it not safe to have been ungratefull That of Seneca the father in his controversies may be applyed to vices of this kind I desire not the accused person should be praised but absolved XCIII That it is lawful to pardon both before and after the Penal Law IT follows that we consider whether sometimes it be lawfull to grant a pardon For the Stoicks deny but upon a light ground Pardon say they is a remission of due punishment but a wiseman gives every one his due Here the fallacy lyes in the word due For if you understand punishment to be due to him who hath done a fault so that he may be punished without injury it will not hence follow if one punish him not he doth wrong But if you conceive punishment so to be due from a wise man that it is his duty to exact it we say that is not always so and therefore in this sense punishment may be not due but onely lawfull And that may be true both before the constitution of a penal Law and after Before a penal Law ordained there is yet no doubt but punishment may have place because naturally he that is a delinquent is in that state that he may lawfully be punished but it doth not therefore follow that the punishment ought to be exacted because this depends upon the connexion of the ends for which punishment was ordained with the punishment it self Wherefore if those ends by themselves in a moral estimation be not necessary or if other ends on the opposit part occur not less profitable or necessary or if the ends proposed to the punishment may be attained another way now it appears there is nothing which precisely obligeth to the exacting of the punishment An example of the first may be in a sin known to very few the publick traduction whereof may therfore not be necessary yea it may be hurtfull to which that of Cicero is pertinent concerning one Xerxes It was not fit perhaps to dismiss him being brought to judgment but that he should be enquired after and brought to judgment was not necessary An example of the second in him who opposeth to the fault either his own or his parents good deeds worthy of recompence for saith Seneca a benefit superventent suffers not the injury to appear Of the third in him who is amended with words or with words hath satisfi'd the wronged party so that there is now no need of punishment to those ends And this is one part of clemency freeing from punishment which the Hebrew wise man respecting saith It becometh a just man to be mercifull For because all punishment expecially the more grievous hath somewhat which by it self considered is repugnant not indeed to Justice but to Charity Reason easily permits to abstein from it unless greater and juster Charity do as it were irrefragably hinder Sopater hath a place apposite to this matter where he saith Thâ—… part of justice which reduceth contract to equality wholly refuseth all kind of favour but that part which is conversant about offences doth not disdain the kind and amiable countenance of the Graces Now these three things may occur either that punishment is by all means to be exacted as in wickednesses of the worst example or that it is by no meaâ—…s to be exacted as when the publick good requires it to be omitted or that it is
so also Kings beside the peculiar care of their own states have lying upon them the care of human society The chief reason for the negative opinion that such wars are not just is this Because God is sufficient to revenge offenses done against himself whence it is said The Gods take care of their own injuries and T is enough that perjun hath God for an Avenger But we must know that the same may be said of other offenses too For God no doubt is sufficient for the punishing of them also and yet are they rightly punished by men no man contradicting Some will reply and say other offenses are punished by men as other men are thereby harmed or endangered But on the other side we must note not only those offenses are punished by men which directly hurt other men but those also that do so by consequence as killing one self bestiality and some others Now though Religion by it self prevailes singularly to procure God's favour yet hath it also in human society very great effects And it is not without good reason that Plato calls religion the fortress of power and the bond of Laws and vertuous disciplin Irreligion on the contrary is the cause of all iniquity Jamblichus hath a saying of Pythagoras To know God is vertue and wisedom and perfect happiness Hence Chrysippus said The Law is the Queen of Divine and human things and Aristotle accounts among publick cares that about things divine to be the chiefest and the Romans defined skil in Law to be the knowledge of things divine and human And Philo describes the art of government the ordering of things private publick and sacred All which things are not to be considerd only in some one State as when Cyrus in Xenophon saith his subjects would be so much more obedient to him by how much more they feared God but also in the common society of mankind Take away Piety saith Cicero and you take away faith also and fellowship of mankind and that most excellent of all vertues Justice And hereof we have an evident argument in Epicurus who when he had taken away Divine providence left nothing of justice neither but an empty name saying It had its birth from agreement alone and endured no longer than common utility lasted and that we must abstein from things hurtfull to another only for fear of punishment His own words to this purpose very notable are extant in Diogenes Laertius Aristotle also saw this connexion who speaks thus of a King The people will the less fear any unjust usage from their Prince whom they believe to be religious And Galen where he had said many questions are made about the wor'd and the Divine Nature without any benefit to mens manners acknowledgeth the question concerning Providence to be of very great use both for private and publick vertues Homer also saw this who opposeth to men fierce and unjust those that are of a religious mind So Justin out of Trogus praiseth the antient Jews for their Justice mixt with Religion and Strabo commendeth them for being really just and pious Furthermore Religion hath greater use in that greater society than in the Civil because in the Civil State part of it is supplyed by Laws and an easy execution of the Laws when on the contrary in that great Community the execution of Law is most difficult not to be done without arms and the Laws are very few and these too have their sanctimony chiefly from the fear of a divine power whence offenders against the Law of Nations are usually said to violate the Divine Rightly therefore have the Emperors said that the pollution of Religion perteined to all mens injury as that wherein all mankind is concerned XCIX Four most common principles of Religion THat we may take a more perfect view of the whole matter we must note True Religion which is common to all Ages depends especially upon four principles 1. There is a God and He is One. 2. God is not any of the things visible but of a nature more sublime 3. All human affairs are under Gods providence and governed by his most righteous Judgment 4. The same God is Maker of all things without Himself These four are expressed in so many Precepts of the Decalogue For in the first is plainly deliverd the Unity of God in the second His invisible Nature therefore to make an Image of him is forbidden Deut. 4. 12. As Antisthenes also said He is not seen with eyes he is not like to any thing neither can be known by an Imageâ—… and Philo It is profane to exhibite an Image by picture or sculpture of Him that is invisible and Plutarch renders this cause why Numa took away Images from the Temples Because God cannot be conceiv'd but by the mind alone In the third precept is understood the knowledge and care of human actions and thoughts too for this is the foundation of an oath For God is call'd a witness even of the heart and if one deceive arevenger too whereby both the Justice of God is signified and his power In the fourth is acknowledged the beginning of the world by God's Creation for the remembrance whereof the Sabbath was instituted of old and that with a singular kind of sanctimony above other rites For if one had sinned against other rites the punishment of the Law was arbitrary as about forbidden meats if against this 't was capital because the violation of the Sabbath by the institution conteined a denyal of the world's Creation by God And the world's being created by God tacitly declares his goodness and wisedom and eternity and power Now from these contemplative notions follow the active viz. That God is to be honour'd lov'd worshipped and obeyed Wherefore Aristotle said he that denyeth God is to be honour'd or Parents to be loved is not to be refuted with arguments but with stripes And elswhere That it is the duty of an honest man every where to honour God Moreover the verity of these notions which we call contemplative doubtless may be demonstrated even by arguments fetchâ—… from the nature of things amongst which that is of most force that sense assures us some things were made and the things made plainly lead us to something that was not made But because this reason and other the like are not apprehended by all men it is sufficient that from the beginning to this present in all parts of the world all men aâ—… very few excepted both of the simpler sort that would not deceive and of the wiser sort that would not be deceived have consented to these notions which consent in so great variety both of Laws and other opinions evidently shews the tradition propagated from the first men to us and never solidly refuted and this alone is enough to procure belief What we have set down afore concerning God agrees
They that introduced these rights at first meant the unfortunate should expect marcy the injurious punishment After These men if by the unjust desire of that which is anothers they have fallen into these evils must not accuse fortune nor impose on themselves the name of suppliants For that by right belongs to them that have an innocent minde adverse for tune But the life of those men ful of wicked acts shuts up against them all places of refuge and leaves no room for compassion Cicero hath a saying out of Demosthenes We must shew compassion to those whom fortune not their own evil deeds have made miserable So in the most wise Law when any one had been stain by an Axe slipping out of anothers hand the Cities of refuge were open but the most holy Altar it self was no protection for them that had stain an innocent man deliberately or had troubled the Common wealth Which Law Philo explaining saith Unholy men have no entertainment in the Holy place And no otherwise the more antient Greeks It is related that the Chalcidenses refus'd to yield Nauplius to the Achivi but the cause is added for he had cleared himself from their objections There was among the Athenians an Altar of mercy mentioned by Cicero and others but for whom Only for the miserable and distressed Aristides saith it was the proper praise of the Athenians that they were a refuge and comfort to all afflicted men every where Lycurgus the Orator relates that one Callistratus who had done a capital fault advising with the Oracle received answer that if he went to Athens he should have right and that in hope of impunity he fled to the most holy Altar there and notwithstanding was put to death by the City most observant of her Religion and so the Oracle was fulfill'd Tacitus disallows the custom in his time received through the Grecian Cities to protect the wickedness of men in reverence to the Gods Princes indeed saith the same Author are like Gods but neither do the Gods hear the prayers of suppliants except they be just Such then are either to be punisht or yielded or removed at least So the Cymaei in Herodotus when they neither would deliver Pactyes the Persian nor durst retein him permitted him to depart to Mitylene Demetrius Pharius who being conquerd in war had fled to Philip King of Macedon was requir'd of that King by the Romans Perseus King of Macedon in his defense to Martius speaking of those that were said to have conspired against Eumenes So soon as being admonisht by you I found the men in Macedonia I commanded them away and charged them never to return into my dominion The Samothracians declare to Evander who had lyen in wait for Eumenes that he should quit the Temple But this right of requiring to punishment them that had fled their Countrey in these last ages in most parts of Europe is used only in those crimes which do touch the publick State or are of a very hainous nature Lesser faults are wont to be past by with mutuall dissimulation unless in the conditions of the League it were otherwise provided and a more close agreement made This is also to be known that Robbers and Pirats who are grown so strong that they have made themselves formidable are rightly received and defended as to punishment because it concerns mankind that if they cannot otherwise they may be recalled from their evil course by being assur'd of impunity and any people or Governour of people may if they be able effect so good a work This is to be noted too that suppliants are defended till their cause be tryed and if that whereof they are accused be not forbidden by the Law of Nature or Nations the cause must be judged out of the Civil Law of the people whence they come CX How subjects are partakers of the faults of their Rulers or Parts of the whole and how their punishments differ WE have seen how the fault passeth upon the Rulers from the Subjects either antient or newly come the fault will like wise pass upon the subjects from the highest Power if the subjects consent to the crime or do any thing by the command or perswasion of the highest power which they cannot do without transgression of which we shall more fitly speak below where we shall examin the duty of subjects Moreover between the whole and the parts the Community and single persons the fault is communicated because as S. Augustin saith The Community and the particulars go together that being made of these and the whole being nothing else but the parts in one Howbeit the fault perteins to the severals that have consented not to them that were overcome by the votes of others For the punishments of the whole and of the parts are distinct As the punishment of particular men sometime is death so it is the death of a Commonwealth to be overthrown which is when the Civil body is dissolved Single persons are by way of punishment brought under slavery as the Thebans by Alexander the Great those excepted who contradicted the decree of deserting his society So also a City undergoes Civil slavery being reduced into a province Single persons lose their goods by consiscation so from a City are taken away things common as walls shipping ammunition and the like But that particular men for the offence of the Community without their consent should lose the things that are proper to them is injust as Libanius rightly shews in his Oration concerning the sedition of Antioch The same Authour approves the doing of Theodosius who had punished a common fault by the interdiction of the Theater Baths and title of Metropolitan CXI How long the right of punishment lasts against a Community HEre occurres an eminent question Whether punishment for the fault of a Community may always be exacted So long as the Community lasteth it seems it may because the same body remains the parts succeeding one another But on the other side is to be noted that some things are attributed to a Community first and by it self as to have a treasury Laws and the like some things by derivation from the particulars For so we call a Community learned and valiant which hath most such Of this sort is Merit or Desert for primarily it agrees to the particulars as having understanding which the Community by it self hath not Those then being extinct by whom Merit was derived to the Community the Merit it self also is extinguished and therefore the debt of punishment which we have said cannot consist without Merit It seemeth to me saith Libanius you may account it a sufficient punishment that none of the offenders are now alive And the judgment of Arrian's good condemning Alexander's revenge upon the Persians those being long since dead who had offended Greece Concerning the destruction of the Branchidae
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
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
we be quiet thâ—… we ought to hazard our selves Tacitâ—… saith A miserable peace is well exchang'd for war that is when as the same Author saith either being victorious you shall be free or being conquer'd as you were or where as Livy speaks peace is more grievous to those that serve this war is to the free Not if as 't is in Cicero this appears to be the event 〈◊〉 you be conquer'd you shall be proscrib'dâ—… if you conquer you shall be nevertheless a slave It will be also a time to 〈◊〉 arms if in a true judgment where moâ—… Right is and that of greatest moment there is most strength This is that which Augustus said War is not to be â—…dertaken except there be greater hope 〈◊〉 benefit than fear of loss And what Sâ—…pio Africanus and L. Aemilius Paulâ—… were wont to say of injoyning battell 〈◊〉 fitly be applied here Fight not without great necessity or great opportunity This will then chiefly have place when it is hoped the business may be done by terrour and fame with none or very little danger such was Dion's counsell for deâ—…ivering Syracuse Pliny in one of his Epistles hath an expression to our purpose He subdued the enemy which is the fairest kind of victory by the terrour of his â—…ame CXXVIII The Evils of War WAr is a cruell thing saith Plutarch and draws with it a train â—…f injuries and insolence And S. Auguâ—…in wisely Should I go about to declare â—…e manifold Calamitâ—…es and extreme neâ—…essities which attend upon war which 〈◊〉 am not able sufficiently to express when â—…ould I make an end But they say a â—…ise man will wage war Rather if he â—…member himself to be a man he will be â—…rry to find a necessity thereof It is the â—…iquity of the adverse part which enforces 〈◊〉 wise man to take arms which iniquity of â—…en though war did not follow were to be â—…mented Wherefore the mischiefs of war whosoever affectionately confiders 〈◊〉 needs acknowledge it a misery and if any one can pass them over without grief he is the more miserable in that he 〈◊〉 lost all sense of his misery The same Father in another place It seems a feâ—… to evil men to wage war to good men necessity And Maximus Tyrius Although you take out of war injustice the very necessity is it self miserable The same 〈◊〉 is plain that just men take arms only upon necessity the unjust of their own accord Whereto may be added that of Seneca Man must not use man prodigâ—… Philiscus admonisht Alexander to feel for glory but on those terms that be might not make himself a plague to the world meaning the slaughter of people and desolation of Cities to be the effect of a plague and that nothing is more Kingly than to take care of all 〈◊〉 safety which depends on Peace If 〈◊〉 the Hebrew law even he that had 〈◊〉 a man against his will was to fly for refuge If God denyed David who 〈◊〉 the Lord 's own battells the honour 〈◊〉 building his Temple because he had 〈◊〉 much blood If among the old Greeks they had need of expiation who ever without fault had steined their hand with blood Who seeth not especially if he be a Christian how unhappy a thing War is and of an ill omen and with how great endeavour it is to be avoided though not unjust Surely among the Greeks that professed Christianity that Canon was long observed whereby they were kept for a time from the sacred mysteries who had killed an enemy in any war whatsoever CXXIX OF WAR FOR OTHERS And first for Sub ects And whether an Innocent person may be yielded up WE have said afore that Every man naturally may execute not only his own but anothers Right Wherfore the same causes that are just for him whose business is in hand are also just for them that bring aid unto others Now the first and most necessary care is for subjects whether in the family or in the Commonwealth For they are as it were a part of the Governour as there we have said So for the Gibeonites who had subjected themselves to the Hebrew people that people took up arms under the command of Joshua Our Ancestors saith Cicero have often waged war for injuries done to our Merchants and Seamen Elswhere How many wars hâ—… our Ancestors undertaken because our Citizens were said to be injur'd our Saylors retein'd our Merchants spoiled The same Romans thought it necessary to take arms for the same people being become their subjects for whom being consederates they would not stir The Campanians to the Romans Seeing you will not by just force defend our estate against violence and injury you will certainly 〈◊〉 your own Florus saith the Campanians made the league they had before moâ—… holy by the dedition of all they had It concern'd the Faith of the Romans is Livy speaks that a people which had yielded themselves should not be deserted Howbeit not always are Governors bound to take arms for the just cause of a subject but so if without incommodity of all or most of the subjects it may be done For the Governors office is rather conversant about the whole than about the parts and the greater the part is the neerer it approcheth to the nature of the whole Wherefore if one Citizen though innocent be demanded by the enemy he may no doubt be deserted if it appear that the Commonwealth is far inferior to the enemies power Against this opinion disputes Fordinandus Vasquins but if we mark his meaning rather than his words he seemeth to contend that such a Citizen be not rashly forsaken when there is a possibility and hope of defense For he brings also an example of the Italian Foot who forsook Pompey before all was lost being assur'd of quarter by Casar which act he deservedly reproveth But whether an innocent Citizen may be given into the hands of the enemy for the avoiding of destruction otherwise imminent to the Commonwealth Learned men dispute And it was of old disputed as when Demosthenes produced that renowned Fable of the Doggs whom the Wolves treating with the Sheep about a peace demanded of them Not onely Vasquius denies it to be lawfull but He whose opinion is accus'd by Vasquius as perfidious Sotus Yet Sotus â—…firms such a Citizen is bound to deliver up himself to the enemies and this 〈◊〉 Vasquius denies because the nature 〈◊〉 Civill society which every one hath enterd into for his own benefit doth not â—…nquire it But hence it follows only that the Citizen is not bound to this by right properly so called it doth not follow that in Charity he is not bound to do it â—…or there be many offices not of proper justice but of Love which are not only performed with praise which Vasquius grants but also cannot be omitted without blame And
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
â—…eason of that most full right of Dominion he hath over us which right he hath not granted us to have one over another as we have before noted Notwithstanding the same God Lord of men by his own right for the sake of a very few good men is wont to spare even a great multitude of the bad and thereby testifies his equity as he is a Judge as the Conference of Abraham with God concerning Sodom clearly shews us And by these general rules it may be known how much is lawful against an enemy Naturally IV. What is lawful against them that send things to the Enemies IT is also enquir'd what is lawâ—… against them who are not enemies or would not so be called but furnish the enemies with some things For both of old and of late we know there hath been sharp contention about it some defending the rigour of war others the Freedome of Trade First we must distinguish of the things themselves For some things there are that have use onely in war as arms some that have no use in war as those that serve for pleasure some thâ—… have use both in war and out of war as mony victuals ships and things belonging thereto In the first kind true 〈◊〉 that saying of Amalasuintha to Jusâ—…nian They are on the enemies party that supply the enemy with Neceâ—… for the war The second kind hath 〈◊〉 cause of complaint So Seneca saith bâ—… will make requital to a Tyrant if thâ—… benefit will neither give any new strengâ—… unto him to do publick mischief nor â—…fim the strength he hath That is which may be rendred him without the hurt 〈◊〉 the Commonwealth for explicatiâ—… whereof he addeth I will not help him 〈◊〉 Mony to pay his Guard but if he shal 〈◊〉 sire Marbles and Robes such thinâ—… hurt not others only they minister to his Luxury Soldiers and arms I will not supply him with if he shall seek for Players and Recreations to soften his fierceness I will gladly offer them Ships of war I would not send him but such as are for pleasure and ostentation of Princes sporting in the Sea I will not deny And in the judgment of S. Ambrose to give to one that conspires against his Country is a liberality not to be allowed In that third kind of doubtful use the state of the war is to be distinguished For if I cannot defend my self unless I intercept the things sent Necessicy then as we have elswhere said will give a right but with the burthen of restitution except some other cause accede But if the apportation of those things hinder the execution of my right and he could know so much who brought them as if I had streitned 〈◊〉 town with siedge or shut up havens and were now in expectation of their yielding or compounding He shal be liable for the damage by his fault done me like â—…ne that hath taken my debtor out of prison or hath helped him to escape whereby I am injur'd And according to the â—…easure of my loss his Goods also may â—…e seised and brought under my command to the end I may obtain my Due â—…f he hath not yet done any damage but hath been willing to do it there will be a â—…ight by retention of the things to compell him to give Caution for the future by hostages pledges or some other way But if moreover my enemie's injustice toward me be most evident and He confirm him in that most unjust war in this case He will not only Civilly be liable but Criminally as one that rescues a person manifestly guilty from the Judge at hand and for that cause it 〈◊〉 be lawful to determine against him that which is meet for his offense according to what we have said of punishments wherefore within that measure He may also be spoiled And for these reasons They that wage war are accustomed to give publick notice thereof to other nations to the end that both the right of their Cause and the probable hope they have to execute the same may appear to all Now for this question we have therefore referr'd it to the right of nature because out of Histories we could find nothing constituted thereof by the voluntary Law of Nations The Romans who had brought victuals to the enemiâ—… of Carthage were taken by the Carthoginians and again rendred upon requeâ—… Dematrius when he possessed Attica with his Army and had taken the neighboring Towns Eleusis and Rhamnus intending to famish Athens hanged up both the Master and Governour of a ship about to bring in corn and by that means deterring others got the City V. Whether it be lawful to use Guile in War AS to the manner of acting force and terrour is most proper to wars whether it be lawful also to use guile is a question For Homer and Pindar and Virgil do all concur in this sentence Your Enemy you lawfully may spoile Whether by open force or secret guile And Solon so famous for his wisedom followed this Rule and Fabius Maximus in Silius helpeth his valour with cunning Ulysses in Homer the exemplar of wisedom is every where full of subtle devices against the enemy whence Lucian concludes They are worthy of praise that deceive him Xenophon said Nothing is more profitable in War than Deceits and Brasidas in Thucydides holds it to be a singular commendation to over-reach the enemy and Agesilaus in Plutarch thinks it very just and lawfull Polybius is of opinion that things done by strength in war are inferiour to those done by wit and out of him Silius brings in Corvinus speaking thus Less praise I gain By my strong hand I war by a strezg brain And Plutarch notes that those severe Laconians were of the same judgment and that He offered a greater sacrifice who had effected his work by strategem than by plain battell The same Author magnifies Lysander for his various fleights of war and reckons it amongst the praises of Philopemen that being instituted in the Crotian disciplin he had allayed thaâ—… blunt and hardy manner of warring 〈◊〉 deceits and stealths Ammianus saith All prosperous events of war are to be praised without making difference between Valour and Craft The Roman Lawyers call it an honest craft if one devised iâ—… against an enemy and say it matters noâ—… whether one escape the enemies power 〈◊〉 force or fraud Among Divines Augustin When a just war is undertaken is no difference in point of right whether one fight with open force or ly in wait And Chrysostom Generals are most prais-worthy that have got the victory by stratagem Howbeit there are not wanting Opinions that seem to perswade the contrary some of which we will allege anon The determination of this Question depends on that whether Guilt or Deceit in general be of the number of Evils concerning which it is said Evil is not to be done
is that which is specially Indiction or Edict where either the other hath already begun the war this is that which in Isidore is called war to beat off men or himself hath committed such faults as deserve punishment But sometime the Pure follows the Conditionate though that be not necessary but ex abundanti Hence is that form I testify that people is unjust and will not do right This also is an argument of supervacuous observation that war hath oft been proclamed on both sides as the Peloponnesian by the Corcyraeans and Corinthians when it is sufficient that it be indicted and proclamed by either Furthermore from the custom institutes of some Countries not from the Law of Nations are the White Rod among the Greeks the Turfs and bloody spear among the Aequicolae first and by their example among the Romans the renouncing of friendship and society if there had been any thirty solemn days after demaund made the throwing of the spear again and other things of like kind which ought not to be confounded with those that properly belong to the Law of Nations For a great part of these ceased to be used saith Arnobius in 〈◊〉 time yea in Varro's time some of them were omitted The third Punick War 〈◊〉 at once indicted and begun Maecenâ—… Dion will have some of them to be proper to a popular State XXII War proclamed against any one includes his Subjects and Adherents But not as considerd by Themselvet MOreover War indicted against him who hath the highest power over the people is witha l suppos'd to be indicted against all His not only subjects but those too who will join themselves unto him as being an accession to his party and this is that which the later Lawyers say The Priâ—…ce being diffâ—…ed his Adherents also are diffâ—…ed For to indict war they call To diffâ—… Which is to be understood of that same war which is waged against him to whom it is indicted As when war was denounced against Antiochus They were not pleased to denounce it against the Aetolians apart because they had openly join'd themselves with Antiochus The Heralds answerd The Aetolians have declared war of their own accord against thomselves But thâ—… war being ended if another People 〈◊〉 King for supply of aids is to be waâ—… against that the effects of the Law of Nations may follow there will be need of a new Indiction For now he is not â—…ookt upon as Accessory but Principal Wherefore it is rightly said that by the Law of Nations neither the war of Manlius upon the Gallo-Greeks nor of Caesar upon Ariovistus was Lawfull for they were not assalted now as an accession of a Neighbours War but principally to which purpose as by the Law of Nations Indiction so by the Roman Law a new command of the Roman people was necessary For what was said in the proposal against Antiochus Was it their will and pleasure that War should be enterd with King Antiochus and those that followed his party which was observed too in the Decree against King Perseus seemes truly understood so long as the War continued with Antiochus or Perseus and of those that really immixed themselves in that War XXIII The Cause why Denuntiation is requisite to some effects which are not found in other Wars NOw the cause why Nations requir'd Denuntiation to that war which we have said to be just by the Law of Nations was not that which some allege that they might do nothing privily or 〈◊〉 deceit for that perteins rather to the 〈◊〉 cellence of their valour than to righâ—… some Nations are read to have appointed their enemies the day and the place of battell but that it might certainly appear the War was not waged by a prinâ—… undertaking but by the will of either people or their Heads For thence are sprung those peculiar effects which have place neither in war against Robbers nor in that which a King wageth against his Subjects Therefore Seneca spake distinctly Wars were indicted against Neighbours or waged against Citizens As to that which is noted by some and shew'd by examples That ever in such wars the things taken become theirs that take them it is true but on the one part onely and that by natural rigâ—… not by the voluntary right of Nations as that which provides for Nations only not for those which are no Nation or part of a Nation Besides they erre 〈◊〉 this that they think War undertaken for defense of ones self or ones Goods needs no indiction for it doth need not simply but in regard of those effâ—… which we have begun to speak of and 〈◊〉 explain anon XXIV War may be indicted and waged together War indicted for violation of Embassadors NEither is that true that War may not be waged presently as soon as it â—…s indicted which Cyrus did against the Armenians the Romans against the Carthaginians as we said even now For Inâ—…iction by the Law of Nations requiâ—…eth no time after it Yet may it come to â—…ass that by natural right some time may be required according to the quality of the business to wit when things are demanded or punishment requir'd upon the guilty and that is not denyed For â—…en such time is to be allowed whereâ—… that which is requir'd may commodiâ—…ully be done And if the right of Emâ—…assages be violated it will not therefore be unnecessary to denounce War but 〈◊〉 will suffice to do it as it may be done â—…afety that is by Letters as also citaâ—…ons and other denuntiations are usually made in places not safe XXV The right of killing enemies in a solemn War The effects of that War in generall TO that of Virgil Then it will be lawful to hate and fight and 〈◊〉 spoil Servius Honoratus when he had deduced the Original of the Heralds law from Ancus Martius and farther from the Aequicolae saith thus If at any time men or beasts were by any nation taken away from the people of Rome the Pater paâ—… tus went with the Heralds that is Prâ—… who have authority in making of Leagâ—… and standing before the bounds 〈◊〉 loud voice pronounced the cause of the War and if they would not restore the things taken or deliver up the Author of the injury he threw a spear which 〈◊〉 the beginning of fight and thence forbid was lawful after the manner of War 〈◊〉 take the spoil Whereby we learn 〈◊〉 there are certain proper effects of We indicted between two Nations or thâ—… heads which effects do not follow 〈◊〉 as it is considered in its own nature Thâ—… agrees very well with what we noted 〈◊〉 fore out of the Roman Lawyers XXVI Lawful is distinguisht into that which is done without punishment and that which is done without fault BUt Virgil's Licebit it will be lawful Let us consider what importance it hath For sometime that is said to be
lawful which is right and pious intirely though perhaps another thing may be done more laudably as in that saying of S. Paul the Apostle All things are lawful for me but all things are not expedient All things that is all of that kind of which he had begun to speak and would speak more So it is lawful to contract matrimony but more laudable is single Chastity proceeding from a pious design as S. Augustin discourses to Polâ—…ntius out of the same Apostle It is also lawful to marry again but it is more â—…awdable to be content with one marriage as Clemens Alexandrinus rightly explains this question A Christian husband lawfully may leave his Pagan wife as S. Augustin thought with what circumstances this is true is tâ—… proper to determine here but he may also keep her lawfully Ulpian of 〈◊〉 Seller to whom 't is lawful after appointed day to pour forth the wine If 〈◊〉 saith he when he may pour it forth 〈◊〉 doth it notâ—… he is the more to be pracâ—… But sometime a thing is called lawful not which may be done without violating the rules of piety and duty but which among men is not subject unto punishment So among many people it is lawfull to commit fornication among the Lacedemonians and Egyptians it was also lawfâ—…l to stealâ—… In Quintilian we read There are some things not laudable by nature but granted by Law as in the XII Tables The Creditors might divide the Deâ—… body among them But this signification of the word lawfull is less proper 〈◊〉 Cicero observeth well in the fist of his Tâ—…sculans speaking of Cinna To me entâ—… câ—…ntrary he seemeth miserable not 〈◊〉 in that he did such things but in that 〈◊〉 so behaved himself that it might be lawful for him to do them though indeeâ—… is lawful for none to do amiss but weaâ—… in our language calling that lawful which is permitted to any one neveâ—…theless it is received as when the saâ—… Cicero for Rabirius Posthumus thus 〈◊〉 speaks the Judges Ye ought to consider what becomes you not how much is lawful for you for if ye seek only what is lawful you may take away out of the City whom you please So all things are said to be lawful for Kings because they are exempt from human punishments as we have said elswherere But Claudian informing a King or Emperour rightly saith Have in your thought Not what you may effect but what you ought And Musonius reproveth Kings who â—…se to say This is lawful for me not This becomes me And in the same sense we often see oppâ—…ed What is lawful and What ought to be done as by Seneca the Father in his controversies more than once XXVII The effects of solemn War generally consider'd are referrd to the later sense of lawful in respect of impunity And why such effects were introduced Testimonies IN this sense then it is lawful for an Enemy to hurt his Enemy both in his person and in his Goods that is not only for him who upon a just cause vengeth war and who hurteth within thâ—… measure which we have said to be naturally granted in the beginning of its book but lawful on both sides and wiâ—…out distinction So that for that cause he can neither be punisht being perâ—…hance deprehended in another territory as 〈◊〉 homicide or theef not can War be made against him by another upon that account Thus we read in Sallust To 〈◊〉 all things in victory were lawful by the Law of War The cause why it pleased the Nations to have it so was this 〈◊〉 had been dangerous for other Nations 〈◊〉 take upon them to pronounce and determine about the Right of War between two Nations for by that means they would be engaged in the War of others 〈◊〉 the Massilians said in the cause of 〈◊〉 and Pompey That it was above thâ—… Judgment and above their power to â—…cern whether side had the juster caâ—… Moreover even in a just War it can â—…ardly be known by external marks what is the just measure of self-defense of recovering ones own or of exacting punishments so that it is much better to â—…eave these things to be examined by the Conscience of those that War than to reduce them under the judgment of others Beside â—…this this effect of licence that is of â—…mpunity there is another also to wit of dominion concerning which we shall speak hereafter As to that licence of hurting which we have now begun to handle it extendeth first to Persons of which â—…icence many Testimonies are extant in good Authors It is a Greek proverb out of a Tragedy of Euripedes That the blood of an enemy leaves no stain Therefore by the old custom of the Greeks it was not lawfull to bathe to drink to sacrifice much less in their company who had slain a man out of the time of war but in theirs that had done so in war it was lawfull And commonly to kill is calld the right of War Marcellus in Livy Whatsoever execution I have done upon the enemy the right of War defends In the same historian Alcon saith to the Saguntines I think it better for you to suffer these things than your bodies to be slain your wives and children to be dragd and ravisht before your eyes by the right of War The same elswhere when he had related how the Astâ—…penses were put to the sword addeth It was done jure belli by the right of War Cicero for Deiotarus Why should he be an enemy to you by whom be might have been killed by the Law of Wâ—… by whom he remembred he was made King and his sons And for M. Marcellus When by the condition and right of Victory we were all dead men we were preserved by the judgment of your Clemency Caesar to the Haeduans signifies They were saved by his favour when the Law of War gave him leave to destroy them Josephus in the war of the Jews It is honourable to fall in War but by the Law of War and by the hand of the Conquerour Now wheÌ„ these writers speak of the Law or right of War it appears by other places they must be understood not of that which frees the act from all fault but of the impunity before mentioned Tacitus said Causes and merits are considerd in peace in War the innocent and the guilty fall together The same in another place Neither did the right of men suffer them to honour that slaughter nor the course of War to revenge it Nor is the right of War to be taken otherwise when Livy tells how the Greeks spared Aeneas and Antenor because they had always perswaded unto Peace Cyprian Monslaughter when private men commit it is a crimo when it is publickly done 't is call'd a vertue Not respect of innocence but greatness of the cruelty gives impunity to wicked Actiâ—… So
least may be omitted better and with more commendation among good men In Seneca's Troades when Pyrrhus saith No law spares a captive or hinders his punishment Agammenon replies What Law forbiddeth not Pudor forbids to be done Where Pudor or Modesty signifies not so much respect of men and reputation as of Right and Good or at least of that which is righter and better And in that sense you may often see Justice joyn'd with Pudor Plato Justice is call'd the companion of Pudor and that deservedly And in another place God fearing the destruction of mankind gave unto men Justice and Pudor the ornaments of Cities and bonds of friendship Cicero so distinguisheth between Justice and Modesty that he makes it the part of Justice not to violate men of modesty not to offend them With that which we brought out of Seneca well agrees a saying of the same Author in his Philosophic writings How narrow is that Innocence to be good according to Law How much larger is the rule of duties than of Law How many things doth piety humanity liberality justice faith require all which are without the Statute-book Where you see Law is distinguished from Justice because Law conteins that which is of force in externall judgments The same difference Aristotle intimates disputing whether the servitude be to be called just which ariseth from War Some respecting one kind of just for the Law is a certain just thing say servitude arising from war is just yet not perfectly because it may happen that the cause of Warring was unjust So also the Roman Lawyers what oftentimes they call the right of captivity they elswhere call injury and oppose it to natural equity and Seneca saith the name of servant came from injury respecting that which oft happens And the Italians in Livy retaining the things they had taken from the Syracusians in War are called pertinacious to confirm their injury Dion Prusaeensis when he had said Captives in war if they returned to their own receiv'd their liberty addes as men that were injuriously kept in servitude Lactantius speaking of the Philosophers When they discourse of offices perteining to war they accommodate their words neither to justice nor to true vertue but to this life and the custom of Commonwealths And a little after he saith the Romans did injury by Law First then we say If the cause of war be unjust although war be undertaken after a solemn manner all acts that have their rise thence are unjust by internal injustice so that they who knowingly do such acts or do cooperate to them are to be reckoned iâ—… their number who without Repentance cannot enter into the Kingdom of heaven And true Repentance if time and ability be not wanting by all means requires that he who hath given the damage whether by killing or by spoiling things or by taking the prey repair the same Therefore God saith he hates the fasts of those that detein the prisoners not justly taken and to the Niâ—…ivites their King proclames that they turn every one from the violence that is in their hands seeing this by natures light that without such restitution repentance would be feign'd and fruitless And thus we find not only Jews and Christians to have judged but the Mahumetans too Now to restitution are the Authors of war whether by right of power or by counsil bound concerning all the things that usually follow war yea such things as are not usual if they have commanded any such or perswaded or when they could hinder have not hindred So also Leaders are bound concerning the things done by their Command and all soldiers fully who have concurred to any common act as namely the burning of a town in divided acts every one for the damage whereof himself is the only cause or at least one of the causes Nor can I think that exception is to be admitted which is added by some concerning them that do service unto others if in them be any part of the fault For the fault sufficeth to restitution without deceit Some there are who seem to be of opinion that things taken in war though the cause of war was not just are not to be restored because Warriors when they enter into war against each other are understood to have allowed those things to the Takers But no man is easily presumed vainly to expose his own and war of it self is far distant from the nature of Contracts And that peaceable people might have somewhat certain which they might follow and not be entangled in war against their will it sufficed to introduce that external dominion of which we have spoken Which also the said Authors seem to determine in the Law of the captivity of persons Therefore the Samnites in Livy We have sent back say they the things of our enemies taken in prey which seemed ours by the right of War They say seemed because that war was unjust as the Sammites had before acknowledged Not unlike is this that from a contract entred without deceit wherein is inequality by the Law of Nations there springs a certain faculty of compelling him who hath contracted to fulfil his Convenants and yet notwithstanding is he bound by the office of an honest and good man who hath covenanted for more than is right to reduce the matter to equality Moreover He that hath not himself given the damage or hath given it without all fault but hath in his hand a thing taken by another in unjust war is bound to restore it because why the other should go without it there is no cause naturally just not his consent not his iâ—…l desert not compensation There is an history pertinent to this in Valerius Maximus The people of Rome saith he when P. Claudius had conquer'd the Camerini by his fortunate conduct and had sold them under the spear though they saw the treasury encreas'd with money and the bounds of their fields enlarged nevertheless because the action seemed not to be done by their General upon a clear account with very great care they sought them out and redeemed them and restored their lands Likewise to the Phocenses by decree of the Romans was also that publick liberty rendred and the fields that had been taken away And afterward the Ligures who had been sold by M. Pompilius the price being repaid to the buyers were restor'd to liberty and caâ—…e had for the restitution of their goods The same was decreed by the Senate concerning the Abderites the reason being added because an unjust War is waged against them Howbeit if he that keepeth the thing hath laid out any cost or pains he may deduct as much as was worth to the master to attain a possession despair'd of but if he that had the thing being without fault hath consumed or alienated it he will not be bound but for so much as he may
ad Mediolanenses apud Guntherum Omnia securi pro libertate feremus Sed libertatem contemta nemo salute Sanus amat neque enim certae susceptio cladis Quam vitare queas nisi cum ratione salutis Libertatis amor sed gloria vana putanda est Anaxilaus whom the Famine constreined to yield Bizantius made this defense saying Men were to fight against men or against the nature of things So Xenophon Procopius Goâ—… saith Men do not praise voluntary death so long as any hâ—… prevailes over the danger Diodorus Siculus having opened 〈◊〉 Counsells of the war undertaken by the Sithonians after Aleâ—… anders death saith In the judgment of wiser men they â—…tempted a thing rather glorious than profitable making haâ—… iâ—… to danger unnecessary and not taking warning from the noâ—… overthrow of Thebes Cajet 2. 2. q. 95. art 8. Molina tract 1. de just cap. 102. Lib. 10. * Ovid. Fast. 1. Sola gerat miles quibus arma coërceat arma * Servius ad illud in 10. Aen. Iram miserantur inanem Amborum tantos mortalibus esse labores Quia nulla causa tam justa est ut propterea bellum geri debeat * Liv. l. 10. * Cic. ad Att. 7. 7. †Sueton. c. 14. Gel. 13 c. 3. Val. Max. l. 7. 2. * Plutarch Gracchis Extrae summam necessitatem ferrum inferre nec boni medici est nec boni praesidis Marciani dictum apud Zonaram Non debere Regem arma movere quamdiu pace frui liceat Aug. 50. epist. ad Bonifacium Pacem habere voluntatis est Belâ—…m autem debet esse necessitatis ut liberet Deus à necessitate conâ—… in pace †The Lion despising weapons-good while defenâ—…th himself by terrour alone and sheweth that he is compelld â—…lin Hist. Nat. 8. 16. †Diod. l. 16. De Civit. Dei lib. 19. c. 7. * The Lacedemonians in Diodoâ—…us Siculus l. 13. Seing the many enmâ—…es and sâ—…d effects of war we think it our duty to testify before God and man that we are not the causes of them See a notable place it Guicciard lib. 16. Lib. 4. de Civicate Dei c. 15. Belligerare malu videtur felicit as bonis necessitas Aelian lib. 14. 11. †Non permisit templum struere ei qui multa bela bellasset pollutusque esset hostili quidem attamen sanguine Joseph lib. 〈◊〉 cap. 4. ubi plura in hanc sententiam Plinius lib. 7. 〈◊〉 25. After he had related the battells of Caesar the Dictator Truly saith he I will not account it Glory to have 〈◊〉 much hurt to mankind however urged Philo de vita Mâ—… Quamuis enim legibus permissae sunt hostium occidiones 〈◊〉 〈◊〉 〈◊〉 〈◊〉 interfecerit qua nvis justè quamvis ad sui tutelam quamvis coactus aliquid labis contraxisse creditur propter illam communem à summa causa venientem cognationem Quatropter purâ—… 〈◊〉 quadam opus habebant tales intersectorès ad eluéndum quod commissâ—… vid batur piaculum * For three years Zonaras Basil. ad Amphil 10. 13. †Procopius Pers. 2. saith He is not just who doth no man wrong except he defend from wrong those that are committed to him Navar. 24. 18. Jos. 10. 6. Ad Quirites Vertin 2. Lib. 7. Fides agi visa deditos non prodi Soto de just jure lib. 5. q. 1. art 7. †Satius judicemus esse paucos aliquos mala ferre quam immensam multiiudinem Zonaras * Lib. 1. cont ill c. 13. †Praxithea apud Euripidem Si namque numeros quidque sit plus aut mi nus ' erctpimus animo non malo unius domus Commune vinci sed nec aequari potest Philo Iniquum est totum sieri accessionem partis V. l. 2. de vit Mos. * Diodor. l. 17. * Vide Apollod in bibliotheca Lib. 45. †So among the Lucanians a punishment was appointed for the p odigal among the Macedonians for the ungratefull for the idle among the same Lucanians and the Athenians †Less lib. 2. c. 9. dub 7. Plutarch Phoc. Offic. 1. 36. †Vide Simlerum de repub Helveciorum The Lord making war against any if it be known that he doth it justly or if it be a doubful case the Vassall is bound to aid him But when it is unanifest that He doth unreasonably Let him help to defend him not to offend another lib. 2. de Feud c. 28. Hic sinitur * Liv. lib. 34. Vict. de Ind. p. 2. n. 17. Cajet 2. 2. q. 4 art 1. †Oraculum vetus Non ope juvisti praesens in morte 〈◊〉 Effaâ—…or tibi nils 〈◊〉 nisi Templi sinibus 〈◊〉 Cic. de fin 3. de Offic. 2. L. ut vim D. de just jure * De ira l. 1. c. 7. de clem 2. 5. †Euripides in supplicibus Praebent saxa perfugium feris Areaque famulis urbibus pressis malo Tutamen urbes * Offic. 1. 5. De legib 4. Eâ—… Hebraei ita censent Moses de Kotzi praeceptâ—… jubente 77 80. Diodor. l. 1. †De ben 2. 15. And elswhere he saith I will defend a worthy man at the cost of my own blood and partake in his danger And if I can deliver an unworthy man from theeves by raising a cry I will not refuse to spend my voice to save a man De benef lib. 1. c. 10. Less Lib. 3. c. 4. dub 15. * Euripides Herachdis Nos quotquot bujus colimus urbis mania Sufficimus ipsi nostra judicia exsequi Nec alio illud pertinet Spartam tibi quae contigit orna Nobis fuerit cura Mycaenae Et huic non dissimile illud Poeticum Rescindere nunquam Diis licet acta Dâ—…ûm Ovâ—…d Met. 14. Et Virgil. Aen. 1. Non illi Imperium pelagi saevumque tridenteus Sed mihi sorte datum Amb. l. 1. de Offic. Thucy lib. 5. †Au ustin in his second de lib. arbin saith Although it be a part of goodness to do good to strangers yet is it no point of Justice to punish then Procop. Vand. 1. It is good for every one to govern well his own charge and to appropriate to himself the cares of other men Vict de Ind. rel n. 15. Vict. de Ind. rel p. 2. n. 13. * Exemplum simile habes in rebus Pipini apud Fredegatium in fine * Iterum Simlerum vide de hac ve Soto in verb. bellum p. 1. §. 10. circa fin * Ibi fas ubi plurina merces †Livy l. 32. * Suam qui auro vitam venditant Plaut Bacch Guntherus Ae e dato conducta cohors bellica miles Dona sequens pretioque suum mutare favorem Suetus accepto pariter cum munere bello Hunc habuisse dator pretii quem jusserit hostem * Bellinus de re mil. 2. p. t. 2. n. 4. †Seneca nat 5. 18. Who can stile it other than madness to carry danger about with him and to run upon men unknown