there be two kindes of contention one by triall of Law the other by triall of Armes so we may not vse the later if we may haue helpe by the former This was the cause that the Romanes were wont to mooue them with whom they dealt that their quarrels might be ended by mutuall debating and course of iudgement rather then by blowes and weapons And so the Ardeates and Aricines the Neapolitanes and Nolanes did referre their controuersies to the iudgement of the Romanes g Liui. 3. Dionys vlt. Cicer. 1. de offic So the Samnites did prouoke the Romanes to debate their coÌ„mon cause betwixt their common friendes h Liui. lib. 8. And Archidamus said that it was not lawfull to wage battaile against them which did offer themselues to bee ordered by peaceable iudgement i Thucid. l. 1. and Cyrus who is proposed as a patterne of an excellent prince by Xenophon a principall Philosopher and very wise Gouernor maketh the king of the Indians an Vmpier betwixt himselfe and the Monarch of Assiria k Xenoph. Cyropaed 2. therfore they which flie from this peaceable kind of triall which is nothing els but a disseptation of of words and reasons do digresse from iustice humanity commendable examples but it is good to bee prouided for armes when the parties will not tollerate indifferent hearing of the cause which the poets seeme to haue signified when they feygned Chiron the Centaure whose vpper part did resemble a man the inferior part a horse to be tutor to Achilles l Statius Achilles lib. 1. that they might giue vs to vnderstand that when a controuersie could not be moderated by reason the strength of the horse should be vsed for against them which will not be ruled by equitie and reason force is not vniust But as Scipio said a gouernor in warr ought like a Phisitian to vse iron and launcing in the last place m Plut. in apophth And as to the bearing of armes it is certaine manifest that priuate men and people subiect and inferiour princes haue no such necessitie to make triall by battaile because they may pursue their right by other lawfull meanes in some court of iustice neither haue priuate men any authority to assemble a multitude It is Plâ—â—es law Si quis prinatim sine publico scitu pacem bâ—â—â—â—ue fecerit capital esto n Plut. lib. vit de legi If any man priuately without publike knowledge doe make warre or peace let it be capitall vnto him for it belongeth to the power of the supreme gouernor to make warre or peace o Deci. cong 20. and therefore by the law of Iulius it was high treason for any to leuie armes without the consent or command of the prince p l. 3. ad l. Iu. ma. the Romanes did thinke it conuenient to yeeld such a man into the hands of them whom hee had prouoked by weapons q Appian Plut. in cat mi. and vppon such occasion they demanded the person of Annibal and so the Philistines vpon like cause demaunded Sampson to whome the Iewes yeelded him r Iudic. 15. and Cato thought that the army was to be recalled Caesar to bee yeelded vp into the enemies power because he maintained warre in Fraunce without the warrant of the people in whose handes the commandement of warre and peace was Å¿ Liui. lib. 4. 16. 18. 19. but without vrgent cause and lawfull authoritie there should be no taking of armes or raysing of multitude therfore it is well prouided by the statutes of the two soueraigne Queenes sisters Marie Elizabeth of England That no man without authoritie by ringing of any bell or by sounding of any drumme trumpet or horne or any other instrument by the fiering of any beacon or any other instrument c. with force and armes shall alter any lawes or statutes t 1. Mari. parliam 1. c. 12. 1. Eliz. c. 7. And in ancient times kings had the supremacie ouer other of commaunding or commencing war and of mâ—stering men as appeareth by the sacred historie â—et sometime vpon a great or u 1. Reg. cap. 8 necessarie cause as if there be daunger in delay or the soueraigne prince be absent warre may be vndertaken without the commaundement of the prince if it be vpoÌ„ occasion of iust defence which by the law of nature is graunted to euery one and there is an excellent example to this purpose in the Romane history of L. Pinarius who was the captain of a garrison at Enna in Sicely who wheÌ„ he did foresee the reuolt defection of the citizens of Enna to the Carthaginians and hee could not conueniently send ambassadors to the Consul Marcellus though he were not far froÌ„ thence suddenly he did kil all the citizens by which act Enna was still reteigned for the Romanes Marcellus did not disallow the deed a Liui. lib. 24. therefore Cicero commendeth the enterprise of Octauius Caesar who not expecting the decree of the Senate did of his own head vndertake war against Antonius for the time of coÌ„sultation was not yet come but if he had theÌ„ omitted the time of battel he did well foresee that the coÌ„mon weale being oppressed nothing could bee decreed by Senate b Cice. Philip. pic 8. and the Senate did after allow by publike authority the war vndertakeÌ„ by Octauius of his owne priuate aduise c Cic. Philip 5. so Scipio Nasica did deserue exceeding coÌ„mendation who did voluntarily offer himself a captain to all good Romans for the oppressing of Ti. Gracchus together with his treacherous confederates d Valeri Maxi. lib. 3. c. 1 Appi. de bel ciui lib. 1. For it is necessarie as Cicero sayth in such perturbation and tumult rather to obey times then customes for in peace wee must follow custome in warre profite but nowe as to the iustice of warres e lib. 2. de rep c. 5. if bellum haue his denomination a belluis as some doe imagine it should seeme to be vndecent and discrepant from the nature of man Heare of that matter Sencea Wee punish homicides and particular murders why doe wee not punish wares and the glorious sinne of people slaughtered Couetousnes crueltie know no measure By Senate-counsell and popular assent bloody actions are executed and publikely commaunded which are priuately forbidden f Senec. epist 96. Men a mild kind of creature are not ashamed to boast of bloudshed when as dumbe and reasonlesse creatures haue peace amongst themselues g Cuia Critic not 1. c. 2. de cla desp Lipsi 2. mili Rom. 12. And at the first sight this is a great argument that if dumb creatures which can not debate the causes of their anger haue peace amongst themselues how much more ought men to doe the like vnlesse they will be more beasts then the beasts themselues Cyprian hath the like saying Homecide when particular men doe it is accompted a
therefore the Pirats answere to Alexander is misliked n Alberic Gentil lib. 1. de iur bel c. 4. when he said boldly That because he did robbe on the seas with one small pinnesse therefore hee was accompted a pirate but because Alexander did the same with many great gallies therefore he was tearmed the Gouernor of a fleet o Cicer. 3. de repub howbeit this saying of the pirate seemeth to be commended by Cicero p Ibid. and to S. Augustine q August l. 4. de ciuit dei it seemeth to haue beene spoken truely and eloquently which is very straunge vnlesse they did accompt Alexander a robber whom some doubt not to call so r Luc. 10. Senec 1. de benefic and Alciat also is deceiued which not onely alloweth the said speech of the pirate but euen piracie it selfe ſ Alci 1. Cons 1. because forsooth pirates are tollerated of some princes and there were some nations which did publikely practise and put in vre that course of life The Normanes saith P. Emilius as antiquaries doe thinke did recken and repute piracie amongst laudable things t p. Emil. lib. 3. Franc. And Alciat reasoneth further That they offend lesse then others which do so spoile vpon the sea where the law of nations onely is of force and no other law for saith he by that law the sea is common This manner of discoursing becommeth not Alciat but regard is to bee had whether hee that before was a robber do afterward become a lawful iust captaine which Iustine affirmeth of Aristonicus u Iustin lib 35 neare vnto him p Plin. lib. 18. c. 6. beeing better minded then Achab to Naboth to whom he said Damihi viniam quae appropinquat domui meae q 3. Reg. 21. But against such the prophet Esay pronounceth a woe Vae qui coniungitis agrum agro et domum domui r Esai 5. ver 8. But because these thinges are plaine they neede no further discourse The twelfth Chapter That the rules of Warre and Law of Nations are not to be obserued and kept with Pyrates Rebels Robbers Traytors Reuoltes and Vsurpers WIth Pyrates Rebels Robbers Traytors and Reuoltes the Law of Armes is not to be obserued and kept for they by offending haue not withdrawne themselues from publique iurisdiction c Bald. 3. cons 96. for by offending a man may not bee said to be of more price or of greater libertie then he was before d Paulus l. 63. ad leg Falc and for an other reason they may not claime aduantage by the Law of Armes because that Law springeth from the Law of Nations and such persons may not enioie the benefite of that Law to which they are enemies To these men which haue withdrawne themselues from the communion and societie of men and as Florus sayth e Flor. lib. 3. haue broken the league of mankinde how can the Law of Nations which is nothing else but the communion and league of Nations extende anie fauour Pyrates as Plinie saith are enemies to all men lyuing and therefore Cicero sayth that if thou doest not bring to Robbers or Pyrates the raunsome which thou hast promised for thy life there is neither offence nor fraudulent dealing no though thou hast promised with an oath f Plin. lib. 2. c. 46. Cicer. pro leg manil et 3. de offic Spartacus that notable roague did mooue Crassus to contract a league with him But he was with indignation reiected g Appi. in Mithrid et 1. ciuil Tacfarinas that famous robber of Affrike grew to such height of arrogancie that he sent Embassadors to Tiberius the Emperour but his armie was sharpe against him and said that Tacfarinas dealt verie reprochfully with him because hee being no better then a robber by highwaies did notwithstanding so deale with him as if hee had beene a publique or iust enemie h Tacit. Annal 3. Warre hath neuer been as Heliodorus well obserueth compounded or determined by articles or leagues with such dissolute persons but either they haue ouercomed and so suruiued or els haue been ouercome Frontinus of Viriallius x Frontin lib. 2. c. 5. and Appian of Spartacus of Apuleius who was proscribed and of Sextus Pompeius y Appia lib. 1. 4. bellor ciuil which is not so much effected by the leuying of a great armie or the increase of the same as these writers and other historians z Herodia l. 1. seeme to think but by the enioying of a good and sound title and by the maintaining of a publike cause for when Viriallius being before a robber did employ himselfe wholie for the defence of the libertie of his country he became a iust captaine and may well be said to haue borne lawfull armes for which cause the Romans did conclude peace and league with him and did likewise call him their friend So Arsaces whilest he sought to winne the crown of the kingdome of Parthia being his cuntrie from the Macedonians was when he had cōmitted many robberies pillages highted a lawfull king and Aristonicus whilest hee claimed the kingdome of Asia by right of bloud and course of succession might well be tearmed a gouernor in war and thought to haue pursued that contention which is commonly called war And so it may be noted that God himselfe would that Sampson should not moue against the Philistines without cause but so did bring to passe that from priuate occasions he should as it were by degrees ascend to a publike quarrel a Iudic. 14. but they which ground not their wars vpon a publike cause are not properly enemies though they haue armes and do terme themselues gouernors though they encounter such as be lawful gouernors and haue vnder their regiment a complete armie of soldiers he is properly an enemy which hath a court or a commōweale a treasurie power to make league peace and truce And Charles Martelle did say of the Saracens that they could not therefore cleane themselues from the fault of robbers because they went in great troopes because they had captaines tentes and ensignes b P. Emil. li. 2. sithence they had no iust cause of war which is the only warrant of bearing armes c Ceph consil 620. What shall then be said of these French men which were taken in the Portugall warre of the Spaniards and were not vsed as iust enemies the soldiers I meane of Don Antonio were handled as pirates yet the very historie doth conuince that they were not pirats for they did shew forth their kinges letters the king of France his letters whom they did serue not Don Antonio though for him they did fight d Connest l 9 but they which haue beene subiect to others are recoiled from their loyaltie of lieges becomming rebels let them beware how they send embassadors to him from whō they haue reuolted But it cannot be discerned by the law of nations which Phillip
fault when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon And fitly to the same purpose though not purposely for the same Lawes haue agreed to sinnes and that is admitted to bee lawfully which is publike h Cypr. 2. ep 2 And Seneca againe Small theftes are punished great are caried in triumph i Senec. ep 88 Tertullian saith that wrong is proper to warre and as farre as his authoritie stretcheth prohibiteth battaile to Christians k Tertullia adu Iud. but sithence the time of Tertullian these opinions haue beene confuted of Diuines Ciuilians and Philosophers for warre is according to lawe though many mischeefes do steigne it for there doeth ensue good of it when rebels are reduced to obedience and when peace is accorded and that whose end is good is also good it selfe for the end of war is peace to which and to common equitie without bloudshed and these iniuries of warre men do seldome attain Neither doth Seneca disalow all warres for he praiseth the warres of Hercules l Senec. lib. 1. de benefi as to Tertullians saying hee did speak it vpon the consideration of such things which are vniust and are often done in warre not impeaching that which is vsually done of them that be iust to Lactantius Cyprian answere may be made after the same sort Notwithstanding I would not haue this poyson of war admitted into any commonweale vnlesse it be to expell an other poison nor this furie to be let loose vnlesse it bee to coole the furie of others or vpon like necessitie But now let vs sift the precedent definition of warre more narrowly and consider how warre may bee iustly maintained on both sides which both Diuines Ciuilians m Conua reg peccat §. 18. Soto 5. de iust q. 1. 7. view relect haue thus expounded saying that it may bee truely and verily iust on the one side on the other by ignorance as by the voice of God the Iewes did iustly moue warre against the Cananites and the Cananites did iustly resist the Iewes not knowing God his will and defending themselues and therefore it was well said of Pope Pius the second to the embassadors of the king of Hungarie who did speake against the Emperour that he thought the king of Hungarie would not depart from right and reason and hee knew likewise that the Emperour was a louer of iustice howsoeuer nowe they did discent by warre and that neither of them thought that hee had an vniust cause of warre n Com. Pij 2. lib. 3. Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey There was some obscuritie there was variance betwixt two excellent Captaines many doubted what was the best many what was expedient for them many what was decent some what was lawfull o Cice. pro. Marcel but the Ciuil law doth attribute the rightes of warre vnto both parties the things that be possessed by warre it giueth to the possessor captiues it maketh bond seruants to both Now it is conuenient to discend into a more particular consideration of the causes of warre which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches To assault thy neighbours by warre saith Augustine and to vexe people that doe thee no hurt through an ambitious desire what is it els but a great robberie p D. August in 4. de ciuitat Dei Therefore the saying of the Barbarian was as barbarous as himselfe That is most iust in prosperous fortune which is most forcible and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse But Attila which did not attend any cause or occasion of warre did therefore worthely dedeserue the hatred of all men as being an enemie to q Tacit. Ana li. 15. all men r Ior. de o◠but the Turkes do otherwise who most commonly pretend a cause of warfare and therfore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes because it is not as one saith the custome of the Ottomans vpon a rage or heate of mind to enterprise warre ſ Natal com lib. 1. It is a beastly part hauing receiued no iniurie to commit slaughters of men and depopulations of cities and countries therefore princes many times pretende causes of war where in truth there is no cause And Moyses sought for a good cause of quarrelling with the Emorites though hee had a cause absolutely iust namely the commandement of God For when by vertue of the same commandement he was to make warre against the Emorites vtterly to destroy them hee sent messengers to their king which might signifie thus much I will passe by thy land we will not turne into thy field nor vineyard nor drinke the water of thy well wee will keepe the right path vntill we be past thy borders Therefore let there be a cause of warre and let it be no small cause for parum a nihilo vix distat And as Propertius saith Frangit attollit vires in milite causa Quae nisi iusta subest excutit arma pudor Iust cause of warre is the defence of our countrie our selues our friends our fellowes goods A defensiue warre is grounded vpon the lawe of Nature therefore C. Pontius the Captaine of the Samnites said well That warre was iust vnto them to whom it was necessarie and that their armes are honest which haue no hope of safetie but in weapons Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully and by force taken from vs by our enemies t c. iustum q. 2 August q. 10. sup Iosu lib. 2. or that the authors of the iniurie at least may be yeelded vp into our hands to bee punished if they did it not by publike decree but by priuate malice therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule who did go about to vsurpe the kingdome of Israel which God by Samuel the Prophet had giuen vnto Dauid u 2. Reg. c. 2. and Romulus did therefore fight against the Sabines because their Dictator Cluitius would not restore the things taken from the Romanes by violence nor yeelde vp into his handes them that did wronge a Dionis Halicarn lib. 3. And the reuenge of an iniurie most despightfully done is likewise a good cause of warre Therefore Dauid did iustly wage battell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors b 2. Regu c. 20 duob sequenti and that prince hath iust cause of warre who pursueth by armes rebelles and such as swarue from obedience c c. auctor it vs. quaesti 6. cap. scir 103.
quaest 8. for great iniury is done to God and to the prince when his subiectes will not be ordered nor ruled by his authoritie for there is no power but of God and he that resisteth power as S. Paul saith resisteth the ordinance of God d Ep. ad Roman c. 13. and the iniurie done to a soueraigne Magistrate is done vnto God Who said vnto Samuell of whom the people craued an other king They haue not cast off thee but me that I may not reigne ouer them e 1. Reg. c. 8. And Dauid did wage battaile against Seba the sonne of Bochri who solicited the people to reuolt from Dauid to him f 2. Reg. c. 20. But because a Rebell may not properlie be called an enemie when any such armes are borne against rebels it is not to be called a warre but an exercise of princelie iurisdiction vpon traiterous and disloiall persons g Innocent in c. olim 1. de resti sp et l. which was well declared by Pompey in iustifying the warre mainteined by the Senate against Caesar and his complices h Lucan lib. 2. nequè enim ista vocari Praelia iusta decet patriae sed vindicis iram And this is confirmed by Ciceroes opinion who did not think it conuenient to send Embassadors to Anthonie nor to intreat him by wordes but that it were meete to enforce him by armes to raise his siege from Mutina for he said that they had not now to deale with Anniball an enemie to their common weale but with a rebellious Citizen i Cicer. philipp 5. And the said Cicero writeth also to Plancus that peace ought not to be concluded with the Anthonians who had besieged Brutus at Mutina calling them shamefull theefes which either ought to craue peace laying aside their Armour or if they will persist in their furie to obteine it by fight not by composition k Cicer. lib. 10. epistol episto 6. Wherefore it was vnaduisedly done by the late Earle of Essex in admitting anie article of composition with Tyrone and namelie for the restitution of such landes and possessions to which the Rebels might pretende right before the rebellion for so vpon euery iudgement giuen against them they would presentlie haue retourned to weapons And this slipperie reuolution of titles might perhappes haue stirred them to Armes who were in peaceable possession of these lands so that this would haue been nothing else but a cutting off of one of the heads of Hydra that an other might growe for surelie there will alwayes bee some cause and occasion of tumult if men may bringe into question antiqua et antiquata The Romanes would graunt nothinge at all to Rebelles beecause theyr course was to bee sterne to the proude and rebels in that they are rebels are proude in the highest degree Neither ought anie of their kinred to regarde them but to bee of Seneca his resolution Si arma quis patriae meae inferret quidquid de me meruerat perdidit referre illi gratiam scelus haberetur l Senec. lib. vlt. de beni fi And exccellent is the saying of Fredericke the second to the Fauentines Qui dum potest delinquit dignus est vt quantum potest puniatur m Sigoni lib. 18. de re Italâ— But to returne to the causes of Warre There be some causes of making warre which wee referre to God as commaunding warre as when the Iewes did referre to God the cause of the warre mooued against the Cananites n Deut. 34. 4. Exod. 23. 29. Num. 33. 51. Deut. 20. 16. 17. 18. And God denounceth irreconciliable warre against the Amalekites and he chargeth his people with perpetuall enmitie against them o Exod. 17. That kinde of Warre saith Augustine is without all doubt iust which God doth commaunde vvith whom there is no iniquitie and vvho knoweth vvhat ought to bee done to euerie man in vvhich action the armie is not so much to bee accompted the authour of vvarre as the minister thereof p August in Ios q. 10. And so the Prophet Esaie said that it was not necessarie for king Ezechias to aunsweare anie thinge to the Embassadours of the Philistines of the Israelites right in Palestine but onelie this That God vvould haue that land to bee his peoples q Esai 15. Naie the verie Heathen as the Aethiopians did vndertake euerie warre by the Oracle of Iupiter r Herodot lib. 2. And the Spartanes by lottes and miracles were mooued to make warre and to fight with the Argiues Å¿ Xenoplâ— 4. Graec. And Aeneas commeth into Italie to maintaine warre by destinies and Oracles t Nat. com 6. 14. And the Turkes doe alwaies pretende this cause of their warre that it is the commaundement of Mahomet that they should persecute men of diuerse Religion therefore they and the Persians the one seeming haereticall to the other are in continuall warre And the late king of Spaine Phillip did pretende this defence of his warres as some testifie that they were against Infidels and Heretikes u Ferrat de inimic §. 7. et 17. Yet a Doctor of his owne sect Baltasar Ayala thinketh that warre is not to be leuied against Infidels because they be Infidels although the Emperor or Pope should commaund it for their infidelitie doth not depriue them of these demesnes which uu Baltas Ayal lib. 1. de iur bel c. 2. they haue by the Law of Nations for the earth was not giuen to the faithfull onelie but to euery reasonable creature for the earth is the Lordes and the fulnes thereof the round world and whosoeuer dwell therein x Genes c. 1. Exod. 9. 29. Psal 24. 1. And the Lord maketh his Sunne to shine both vpon the good and the bad y Math. 5. in fin et c. 6. in princip and though Nabuchadnezer were an Infidell yet the Lord did giue vnto him kingdome and principalitie z Ierem. 27. 6. But in grounding warre vpon diuine causes it is good to be certaine of God his will and not to credit the aequiuocall prophecies and fantasies of men light-headed and possest of fierie spirits fit to kindle tumults and vprores for the warrants of such men are nothing els but the wracke of a number of men Such was the oracle of that Scot vnto his king consulting with him of warre against England Ibis redibis nunquam in bello moriturus which fell out afterward to be true being thus distinguished Ibis redibis nunquam in bello moriturus Such was the warrant of the Eremit moouing the imperiall armie to fight against the Ligurians zz Carol. Sâ—gon in vit Andr Anti. Such were the fond prophecies of Ball or according to some Chronicles Wall a priest who stirred vp a rebellious armie in the time of king Richard the second zzz I. Stow in Rich. 2. But from warres which displaie the banner I will passe to leagues which wrap it vp 2. As warres haue
handes or to the vse of the Lord and though he be so seised yet it must needes be that he was borne free for the rule is true Quae iure gentium acquiruntur ea non acquiruntur nisi vera interuenerit apprehensio r l. 3. de acqui po vbi Ias otherwise he should possesse the treasure who possesseth the ground in which it is yet he doth not possesse it howbeit he knoweth of it and therefore that rule is not in the Law of Nations true Si quis habet id quod continet habet id quod continetur For in the Law of nations this generall maxime holdeth place Vera et realia non ficta et verbalia amat ius gentium yet such a precise seisure is not heere ment that euery part of him that is taken should be touched euen to the verie shirt of a man as long as he that seiseth hath a will and power to seise for he that toucheth a mans eare is in the ciuill Law held to touch the whole man Å¿ Alc. d. 41. d. l. 3. l. 21. de fur Some hold opinion that he is not a Captiue vntill he be brought into the tents of his enemie t l. 5. de capt Alex l. 1. de acquir po tt 4. reg 6. howsoeuer it be it is plaine that Captiues may not be put to death as the prophet said to the king of Israel An quos captiuos abduceres gladio tuo et arcu tuo eos percuteres And though bloudie Pyrrhus desirous to kill Polyxena did pretend that lex nulla captâ— parcit aut poenam impedit yet Agamemnon aunswered him well quod non vetat lex hoc vetat fieri pudor u Senec. in Tro. To which purpose the other Seneca saith excellentlie Augusta innocentia adlegem bonus esse et latius officiorum patet quà m iuris regula multa exigit pietas humanitas liberalitas iustitia fides quae omnia extra publicas tabulas sunt The Scots therefore are greatlie to be commended who as Buchanan reporteth though great daunger were imminent yet did not slaie their prisoners uu Buchan lib. 9. Neither did the English euer that I reade vnlesse it were once in that notable fight in which they did vtterlie destroy the French dominion who hauing more prisoners then themselues were and finding their captiues to tende to conspiracie and mutinie hauing singled the most noble did kill the baser prisoners x Com. Pi. 2. lib. 6. Polydor. 17. But doubtles the Turkes crueltie was barbarous who did kill fowre thousand prisoners that they might not be a burden or charge vnto him a Ior. lib. 3. And this fault was committed by Henry the second king of Fraunce b Nat. Com. lib. 8. who did cause certaine obstinate prisoners perseuering in fight to be hanged a kind of death vnfit for Captiues who are not so to be punished without great and vrgent cause because it is a point of immanitie and crueltie bitterlie to rage against them which defende their Prince and their Countrie A Captiue one may be and yet not a bondslaue for he can not be a bondslaue vnlesse his Lord will haue him so There was a ceremonie therefore vsed to make him bondslaue which was called Nexus And it seemeth that the Praetor had some authoritie in this matter which I ground onelie vpon the last will and militarie testament of a Romane ingrauen in stone as Sigonius reporteth who would haue his villaines manumitted by the Praetor c Car. Sigo in vit et trinu ph and sithence eiusdem potestatis est ligare soluere I am of opinion therefore that he had some intermedling in the making of them villeines But in the making of them villeines chaines doubtles were vsed and therefore Vespasian when he had taken Iosephus prisoner would needes haue his gyues to be broken not to be loosed that he might seeme neuer to haue been a bondslaue d Ioseph lib. 5. de bel Iud. And whereas the Law saith that such thinges as are taken of enemies capientium fiunt e l. 5. de ac re do it is not meant nolentium therefore though the power of him that taketh make a captiue yet his will must make a bondslaue But surelie the state of captiues if they become bondslaues is verie miserable for they are as it were deiected from their nature and are in accompt of Law tourned into beastes And wheras before they were accompted in Law persons now they are accompted thinges f ad leg Aquit 209. Bald. 2. cons 358. and therefore of the Graecians they are generally called Samata bodies But I do not think this seruitude to be contra naturam For Aquinas his distinction is not to be reprooued that seruitus is á natura though not secundum primam intentionem by which we are all made free yet ex secunda by which God doth punish whom it pleaseth him but such bondslaues must not be vsed like beastes but like men wherefore the speech of some is intollerable Seneca reporteth it who did affirme domino in seruum nihil non licere pictori nihil non pingere g Sen. 1. contr 5. And Plato writeth not well when he saith that bondslauesl l Plat. lib. 6. de leg are to be handled roughlie Aristotle more trulie that they ought to be handled mildlie m Arist 1. polit Cicero more iustilie Meminerimus et aduersus infimos iustitiam esse seruandum Macrobius more modestlie Dominum patremfamilias seruos familiares appellauerunt nostri maiores omnem seruis contumeliam detrahentes n Macrob. 1. saturnal 11. Clemens Alexandrinus more compassionatelie Famulis vtendum tanqum nobis ipsis sunt enim homines tanquam nos o Cle. Alex. â—lt paed Nunquid canes saginabuntur homines pascentur male said Diogenes In Athens there was a Law de iniuria seruili p Athenae lib. 6. Amongest the other Graecians there was a Law that bondslaues might depart from their cruell maisters In some common weales they had licence to purchase landes and goodes as Athenaeus q Pollu 7. Plat. de superst reporteth according to the Romane Law as appeareth by Seneca Dominus praestare debet seruo cibarium vestiarium est enim seruus perpetuus mercenarius r Senec. lib. 3. de benefic 7 Enough of Captiues Now let vs not be vnmindfull of Hostages which are in state not far distant from Captiues Therefore Quinctius did cause the sonne of Phillip and the sonne of Nabis to be led before his triumphall chariot though they were but Hostages Å¿ Oros lib. 4. c. 20. Liui. 34. And the Parthians were wont to saie obsidaetus nihil aliud est quà m seruitus t Ioseph lib. 18. antiqu By the Ciuill Law they can not make a testament no more then others which are in the enemies power u l. 1 1. qu. test fa. po The definition of Hostages is thus
by number he could not e D. Augusti lib. 3. de ciuit dei c. 19. And in the holie Scripture it is reported of king Salomon That the weight of gold which was brought vnto him from foreine countries yearely did amount to the value of sixe hundred sixtie and sixe talents of gold beside that which his collectors leuied vpon his subiectes and tributaries and the custome which he had of merchants together with the tribute of the Kinges of Arabia and the Lieutenants and Gouernours of nations any waie subiect or subordinate vnto him f 2. Chronic. cap. 3. 3. Reg. cap. 10. Custome likewise is a prerogatiue and benefit to which Kinges and Princes are by the Law of nations entitled It was of the auncient Italians called Portorium because it was to be taken of thinges that were to be caried out and to be brought in g Cicer. in oration pro leg Manil. The Turkish Emperour taketh the tenth part of the value of the thinges that are to be caried out of straungers and the twentieth part of his subiectes h Bodin lib. 6. de rep c. 2. And the king of Spaine taketh in India the tenth part promiscuè as well of straungers as his subiectes i The booke entituled The present state of Spaine And by the Law of England Merchants strangers being made denizens shall paie custome as straungers that be not denizens k 11. H. 7. ca. 14. It is good for euerie Prince to haue speciall care and regarde of mainteining merchandize because by that meane not onelie thinges profitable are brought into a kingdome but manie thinges are caried out to be sold and exchanged for publike good and manie sodain chaunces do arise wherein no small daungers are put aside by their meanes Plutarch reporteth that in Solons time merchandizing was held in great price and he giueth this reason for it because by that meane diuers foreine commodities were brought in friendship was procured with straunge kinges experience in manie thinges was attained l Plut. in Solon And the vse of merchandizing beeing once taken awaie in the kingdome of Naples was the cause that all the prouinciall people was presentlie brought to pouertie m Pont. c. 45. de liberalit And for the alluring of straunge Merchants into a Realme their priuiledges must be inuiolablie obserued especiallie at the times when they hold their martes or fayres that they may safelie goe returne tarie and staie with their wares which diuers of our Statutes of England haue prouided for Magna Chart. cap. 28. 9. E. 3. cap. 1. et 2. 14. E. 3. cap. 1. 25. E. 3. cap. 4. 27. E. 3. cap. 2. Of this matter Kings and Princes should haue good regarde for Platoes admonition is to be followed when hee saith Peregrinorum commercia respub ne auersetur n Plat. lib. 12. de legib And Amásis the Aegyptian king was so glad of straungers resort and their commerce that he graunted to the Graecian merchantes meere straungers the vse and exercise of their rites and religion in their owne language and for their more expedite negotiation in that Realme there was a certaine place appointed namelie Naucrate for the receit of foreine wares o Herodot lib. 2. And Aristotle is of opinion that a principall citie must be erected in some conuenient place wherto thinges which be necessarie to this life may be abundantly conueyed and this he would haue situate neere to the sea p Arist 5. polit c. 7. et 6. politic c. 7. And the people of Megara did iustlie complaine against the Athenians who had vtterlie secluded them from their Hauens and from marting with them q Plut. in Pericl This therefore must needes be a good meane to encrease the riches of a kingdome But it is the Princes prerogatiue to permit and to forbid merchant straungers at their pleasure and discretion and therfore the Statute of Magna charta hath in it a good clause for this purpose Omnes Mercatores nisi ante prohibiti fuerint habeant saluum conductum exire venire in Angliam c r Magn. char cap. 28. otherwise some Merchants may sowe bad seede euen the seede of seducement of the Princes lieges shrowding themselues vnder the curtaine of exposing wares to sale But these which are honest Merchants and of iust meaning are not to be forbidden Other benefites and prerogatiues there be which the Law of Nations doth allow to Princes in regarde of their exceeding costes and charge that they are at in the defending and gouerning their Realmes For though I haue shewed before that a masse of wealth almost infinite was brought into the Romane treasurie yet he that considereth their great expence and exceeding charge will I am sure confesse that this great wealth had neede to haue been verie well husbanded for the mannaging of their ordinarie affaires otherwise it would neuer haue stretched to the defrayment of their charges Their forces did consist of two hundred thousand foote-men of fortie thousand horse-men three thousand warlike chariots two thousand shippes a thousand fiue hundreth pinnasses fourescoore gallies double furniture of armourie and three hundred Elephants and in their shippes were a hundred thousand souldiers and marriners rr Lipsi de magistr Rom. lib. 1. c. 4. 5. So that Cicero saith plainlie that the Romanes notwithstanding all their great reuenue and treasure were scarse able to mainteine their armie ſ Cicer. parad 6. In consideration of which great and extreame charges the subiects of all Nations haue giuen and yeelded to their princes diuers princelie and roiall benefites and prerogatiues for the magnifying of their estate As first the vse and benefit of salt Mines for as the Italian prouerbe is Vino oleo è sale suono mercantia reale Wine oile and salt are the merchandize roiall And the Veientines in auncient time being ouercome of Romulus were straitlie forbidden to absteine from the salt Mines which were about the mouth of the riuer t Dionys Halycar lib. 2. And these salt Mines were brought into better forme and were made more commodious for the common weale vnder the reigne of Ancus u Liui. lib. 1. And Aurelius victor doth note that at the self same time an impost was made and ordeined for the same uu Victo lib. de vir illustr And an other impost was made when Liuie was Censor who of this word Salt had the name of Salinator giuen him a Liui. lib. 29. And Paulus Aemilius hauing subdued the Macedonians did reserue the prerogatiue of salt vnto the Romanes and did forbid the Macedonians to vse any salt that perhaps they might finde out without the permission of the Senate Yet the commerce of Salt he did afford to the Dardanians or Troians the auncient progenitors of the Romanes b Liui. lib. 45. And the Publicanes had Salt in farme as may appeare by Ciceroes report and other authorities c Cicer. pro le Ma. l. sed
them as in Guzula a region of Affrike and in the borders of the kingdome of Fez They that dwell neare the mountaine of Maguano if they perceiue any straunger passing by who excelleth in wisedome they doe entreat him or enforce him if entreatie will not serue to deuise Lawes for them o Leo Afer in lib. de reb Affric The Romanes in all their daungerous accidents did acknowledge the gouernement of one to be the best and therefore chose a Dictator whose gouernement Appian pretilie calleth regnum negatiuum either because it denied a regall power onely in shew or because he had authoritie to denie that which the rest had affirmed Trepidi patres saith Liuie ad summum auxilium decurrunt dictatorem dici placuit p Liui. lib. 6. And againe he saith that when Hanniball did molest Italy ad dictatorem dicendum remedium iamdiu desideratum ciuitas confugit q Liui. lib. 22. and such was the reuerence of the Dictator that as the same Liuy saith Dictatoris edictum pro numine semper obseruatum r Liui. lib. 6. And Appius being Consull giueth aduise to create a Dictator for the brideling of the rage of the people affirming minas esse consulum non imperium vbi ad eos qui vnà peccauerunt prouocare liceat agedum Dictatorem à quo prouocatio non est creemus ſ Liui. lib. 2. But Monarchie hath been imbraced by the people of all Nations Democracie reiected as namely by the Medes Persians Aegyptians Parthians Macedonians Arabians Indians Aethiopians Scythians Tartarians Turkes Danes French Mosconites Polonians Britanes Affricanes and Perusians The name of a king saith Salust is primum in terris By scripture it appeareth that kings were ordeined of God for it is said in Deuteronomie Thou shalt make him king ouer thee whom the Lord thy God shall chuse one from among thy brethren shalt thou make King ouer thee and thou maiest not set a straunger ouer thee which is not of thy brethren t Deuteron 17. vers 15. And it is said of Moses He was in Israel as King when the heades of the people and tribes of Israel were gathered together u Deuteronom 33. ver 5. And aftere the returne of the Hebrewes from Babylon where they were captiues to their auncient countrie of Palestine they did obey the kinges of Persia Syria or Aegypt till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria and transferred the high-pristhood and kingdome into his owne familie And as all Nations haue imbraced Monarchie so the wisest men in all nations haue approoued it As Homer a Homer lib. Iliad 1. Herodotus b Herodot lib. 5. Plato c Plat. in politic Aristotle d Lib. vlt. Metaphisic Xenophon e Xenoph. in cyrop Plutarch Philo f Plut. in lib. de creati Regis Apollonius Thyanaeus g Philostratus S. Ierom S. Cyprian Maximus Tyrius h Maxim Tyri in orat and Bartolus the deepe Ciuilian i Bartol in tractat de Regim ciuit nu 10. Lucan k Luca. lib. 1. et 2. Aquinas l Aquinas in lib. de princip Erasmus m Erasm in lib. de instit princip Tacitus S. Augustin n D. Augustin lib. 5. de ciuit dei c. 1. and S. Ambrose whose particular and plenarie assertions I omit because I hasten now to an other matter which hath not been so much discoursed of as this The seuenth Chapter Of the Law and Iustice of Armes of Leagues of Embassages and denouncing of Warre of Truce of Safeconduct Captiues Hostages Stratagems and Conquestes according to the Law of Nations IN purposing to speake at large of the Law of Armes and the members and parcels thereof I doe respect the good of the Ciuilian who in these matters is verie often employed And of the professors of common Law who shall not doe amisse in considering of these thinges that shall be deliuered for the more full opening and explaning of the Statute of 13. Rich. 2. cap. 2. which is thus To the Constable and Marshall it belongeth to haue conusans and knowledge of contractes touching feates of Armes and of warre out of the Realme and also of such thinges as touch Armes or Warre within the Realme which can not be determined nor discussed by the Common Law c. For the better entring into this discourse I thinke it best to begin with the definition of Warre which may be thus Warre is a iust contention of men armed for a publike cause for though manie thinges be done in warre without weapons yet there is no warre without the furniture of weapons and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes and which may not be referred to the same And it must be a publike contention because warre is not the quarrelling fight and enmitie of priuate men for warre is therefore called Duellum because it is the contention of two equall persons a Varr. lib. 6. de lingu lati And therefore the Syrians as I am infourmed doe thus translate the wordes of our Sauiour What king goeth to warre against an other king b Luc. 14. in this forme What king goeth to warre against his fellow king that is an other king equall vnto him Therefore Lipsius his definition is to bee disliked in that he defineth Warre to bee force and armes against a straunge Prince or people c Lipsi in polit for by that hee maketh the outrage and violence of priuate men and pyrates to bee warre for warre is a iust contention and by this woord iust excursions and depraedations are excluded Wherefore Scipio did accompt them robbers and ringleaders to theefes which did deale by such kind of spoyle and pillage d Liui. lib. 28. 40. 41. Flor. 2. And Liuie censureth the Ligurians rather to be robbers then iust enemies because beeing poore at home they did inuade the dominions of others and were more easilie ouercome then founde out Neither did they obserue the Law of Armes because they did slaie captiues and cruellie dismember them And Iouius speaking of the truce betwixt the Turkes and Hungarians saith that by an auncient custome they did make small skirmishes and extraordinarie incursions vpon the borders if they were not resisted by the preparation of Ordinance planted against their walles e Ioui lib. 36. Warre was first brought in by necessiitie for in that decisions of Courtes of Law and the determining of controuersies by their rules could not be betwixt two straunge Princes of aequall power vnlesse they should willinglie agree to such an order because they haue no superior nor ordinarie Iudge but are supreme and publike persons therefore the iudgement of armes is necessarie because such warre saith Demosthenes is against them which can not bee brideled by Law f Demosth de Cherson But processe of suit is onelie for them which are subiect For as
namely when one of the league is to helpe the other when he suffereth iniurie but not when hee offereth iniurie for it is a good rule in the ciuil law rei turpis societas nō intelligitur c l. 5. 7. vbi Bal. pro sor Therfore he that couenanteth to defend a castell or farelet is not bound if warre bee raised through his fault to whome hee made the couenant d Alexand. 3. cons 114. and Castrensis auoucheth that this ought to be vnderstood of a necessarie not of a voluntarie warre But this is cleare and certaine in this case that he that is bound so to defend is bound to defend by weapons e Deci. li. 59. de reg iur 3. cons 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with money f Alci 3. consi 2. yet that must be thought to be onely then required at his handes when the other can not prouide for his owne necessities Now it is to be considered whether eyther of the parties may depart from the league And I thinke vpon iust occasion such a departure may bee made Faedus non violatur si ab eo disceditur ob rationem iustam g l. 14. 15 16. pro soc But this must not bee for a light cause for light causes are alwaies arising and all contracts would bee most weake if for a small and worthlesse cause it should be broken or not regarded But a prince may safely depart frō the league if some part of the league bee broken by the other partie h Cagnol l. 41. Cod. de trans and leagues as all other contractes bee indiuidua i Deci. Cons 265. cep 455. 461. for there be alwaies exceptions vnderstoode in euery league as these for example Nisi causa superueniat nisi culpa accesserit eius cui promissio ista fit pactio foederis rebus sic stantibus Thus we haue spoken of warre and peace generally now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale 3 Before warre be maintained by one prince against an other it behooueth him that commenceth war to denounce the warre solemnly by ambassadors and by that meane to certifie him of his purpose For this course is prescribed by the lawe of God k Deut. 20. Ioseph 5. antiquitat Aug. iudic q. 49. And it was practised by the Grecians Barbarians and most of all by the Romaines l Aerod lib. 5. Xenop Ages Diony 2. Liui. 1. Whereupon Cicero saith Nullum bellum iustum haberi videtur nisi nuntiatum nisi indictum nisi repetitis rebus m Cice. 1. de offi n. c. 1. 23. q. 2. Which saying is cited and auowched in the Canon law n c. 1. 23. q. 2. And this is likewise affirmed in the ciuill law o l. 24. de capt And therefore it is held by the interpreters of the ciuill law Proditoriè agit qui non indictum mouet bellum p Ias Bald. l. 5. de iust l. 4. c. de obs p. And Varro reporteth that iust warres did cease to bee waged in his time because they ceased altogether to bee lawfully denounced q Var. lib. 4. de ling. Lati. For the auncient Romanes did not affoarde a triumph to anye vnlesse the warre were solemnely proclaymed r Sigon de anti iur pro vin And Alciat accompteth this the law of nations ſ Alcia 14. de si cor And because warre is a publike contention if in priuate causes summons and citations be vsed surely in vndertaking warre denuntiation ought to bee vsed t Bald. l. 12. de serui vrb praed for which cause the Romanes were in this point so precise that they did often denounce war when they needed not euen when the law of nations was apparantly violated by other nations so that they might iustly haue enforced them as the rule of the common law is to haue taken notice of their owne wrong In this sort they proclaymed warre against the Senones who had slayne their ambassadors against the Illyrians and Tarentines who had contumeliously abused them u Liui. 12. 20. And this is noted of them in the case of the Saguntines Non statim ad arma procurrunt dum prius more legitimo queri malunt x Flor. lib. 2. So Liuie reporteth of the Frenchmen Erant qui extemplo Romam eundum censerent sed vicere seniores vt legati prius mitterentur questum iniurias postulatumque vt pro iure gentium violato Fauij dederentur a Liui. lib. 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first aslay to end their cōtrouersies without weapons b Herodot l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman c 2. Sam. 20. neither was hee vnwise in this pointe that said Omnia prius experiri verbis quam armis sapientem decet Qui scis an quae iubeam sine vi faciat d Ter. in Eunuch Yea euen Tullus a most warlike man is of this opinion Quae verbis componi non possunt armis decernantur e Dionis li. 3. So Theseus a notable Captaine saith in Euripides Si oratione non persuadeo bellum laudo Vade dic Creonti Theseus amanter repelit a te cadauera hic primus sermo si nihil efficis secundus vt f Eurip. in Supp me armatum expectet And so Theodorius said truely to Alaricus Tunc ad arma cum locum apud aduersarium iustitia non potest inuenire And againe Quid opus homini lingua si causam manus agat armata g Cassiod 5. Var. 1. 7. Thus it is euident that by the lawe of nations warre should be denounced 4 Somewhat must be spoken of truce which is thus defined in the ciuill law Induciae sunt cum in breue et in presens tempus conuenit ne inuicem se lacessant h lib. 19. de capt And Gellius maketh mention of a truce which was made for an houre onely i Gel. li. 1. c. 25. Vergill calleth truce pacem sequestrā because it sequestreth as it were and suspendeth war for a time Varro tearmeth it Ferias belli warres holiday k Virgil. 11. Aenei In that it is called sequestra pax it is to bee noted that it is not simplie a peace In the Cannon lawe it is called tregna it is of this nature that by it warre is not ended but deferred onely and so it is middle betwixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance But peace properly so tearmed is of another nature because it is perpetuall and vnder the name of peace truce is not comprehended no though truce be concluded for a long time as the Veientines made a truce
Mithridates being ouercome and put to flight of them to whome they fled g Liui. 7. 22. Plut. in Luc. App. in Mithr but without all doubt these places and the things of these places which the conquering armie doth possesse doe iustly belong vnto the conqueror therefore that is said to be the conquerors territorie vbi exercitus eius terret h Panor 2. cons 62. Bald. lib. 3. de off praes And Alexander might well laugh at Darius who in the articles of peace would haue yeelded these things to Alexander which he did alreadie possesse i Curt. lib. 4. 5. And Hanniball did disdaine the Romane simplicitie though they did it of great pollicie in selling that ground which hee did possesse with his armie k Liui. lib. 26. And Brasidas the Lacedemonian saide well that that was not the Boetians land which the Lacedemonian armie had seysed l Thucyd. li. 4 And when a Monarche or free citie yeeldeth al the members and inferior parts doe yeeld implicatiue wherefore Baldus saith well A submissione capitis sequitur submissio meÌ„broruÌ„ reruÌ„ quia seruieÌ„te capite membra seruire necesse est And it is certain that the ornaments riches of the people subdued they may take away iure imperatorio as Cicero saith m Cicer. Verr. 3. So Camillus a most strict obseruer of the lawe of armes did take the image of Iuno from Veios n Liui. lib. 4. Marcellus caried away many things from Siracuse o Plut. in Marc. and Mummius conueied great store of Church-ornaments out of Achaia p Zonar And Sir Frauncis Drake that sea-flowre of England did as I haue heard bring home with him the great golden statue of S. Christopher which hee tooke in one of the Churches of Porto Rico when hee sacked it And though there bee somewhat in scripture q Dani. c. 5. spoken against the spoylers of the temple of Ierusalem the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his maiestie But it is plaine that cities surprised may bee sacked cities yeelded vpon condition may not r Liui. lib. 37. and cities surprised may bee sold and the walles may be destroied and the cities themselues Å¿ Plut. lib. 4. The wals of Athens were destroyed by the Spartanes t Thucyd. li. 1. The walles of Sparta by the Achaeans u Liui. li. 38. the walles of Ierusalem by the commandement of Pompey x Tacit lib. 5 part of the walles of Giscala by Titus a Ioseph 4. â—elli Iud. the walles of Argentina by Attila which hee would needes haue afterward called Polyodopolis as now hauing many waies to come vnto it b Bon. sin 1. vng 2 Fredericke was brought in triumph through the walls of Millaine yeelded vnto him c Sigon lib. 13. de re It. Alponsus through the walles of Naples as Guicciardine reporteth Iulius the Pope of Rome through the walles of Mirandula was it because the gates were throwne downe or because such a holy man wold not make a prophane passage through the gates but through the walles which are commonly consecrated or because his ordinarie course is to enter by the window his extraordinarie at the wall or because he wanted the Aspe and the Basiliske to walke vpon he thought good for that present to trample vpon stone and morter as to generall subuersion of cities after a victorie obtayned it is manifest that Thebes was destroyed by the generall concord of all the Grecians because they tooke part with the Persians e Diod. li. 15. Liuie maketh mention of Alba Pometia Corbio Cortuosa Contenebra Satricum Antipatria Phaleria and others which were so destroied f Liuie l. 1. 2. 3. 6. 7. 24. 31. 32. Carthage had the same fortune which is said to haue suffered the plough a ceremony vsed of the Romanes in razing of the foundations of a citie conquered g l. 21. qui mo vs am the same fortune had Ierusalem h c. 7. dist 76. 1. Mich. 3. according to the prophesie of Micheas Sion vt ager arabitur l The eight Chapter That in the lawes and constitutions touching Citties corporations liberties franchises and immunities and the good gouernment and administration of shem all nations haue agreed COrporations in the whole course and constitution of them doe verie much resemble the naturall bodie of man for as there bee in it great diuersitie of partes so is there likewise great distinction in cities and corporations of misteries degrees In Egipt there were in their seuerall corporations diuers sorts and callings of people Kings Priests Warriors and Workemen which last kind was subdiuided into foure members Shipmen Artificers Husbandmen and Shepheards a Arist lib. 7. polit c. 10. Herod lib. 2. histor And as a naturall bodie doth consist of things bodily and of a soule which is vnbodilie so that it consisteth of thinges meerely opposite So likewise a citie or corporation consisteth of multitude and vnitie whereof multitude is as the bodie vnitie as the soule both different in nature That multitude is as the bodie of a Cittie needeth no great proofe Yet heare thereof Florus Cum populus Romanus Etruscos Latinos Sabinosque miscuerit vnum ex omnibus sanguinem ducat corpus fecit ex membris et ex omnibus vnus est b Florus l. 3. c. 18. Heare the opinion of the Stoicks comparing the world to a corporation Ciuitas totius mundi vna est omnes homines populares municipesquè veluti armentum vnum compascuo in agro compascens c Cice. li. 3. de fi Plut. de vi Alex. Heare also Seneca Homo homini in maiore ciuitate ciuis est in adiutorium mutum creatus d Senec. 1. 2. de ira and that vnitie is the forme and as it were the soule of a corporation may diuersely appeare Florus saith excellently for he either could not or would not write but excellently Augustus Caesar sapientia sua atque solertia perculsum vndique et perturbatuÌ„ ordinauit imperij corpus Quod it a nunquam haud dubtè coire coÌ„sentire potuisset nisi vnius praesidis nutu quasi anima mente regeretur e Florus lib. 4. c. 3. And Seneca saith wittily Societas haec nostra lapidum fornicationi simillima casurae nisi inuicem obstarent sustinerent se lapides f Sene. epist 96. This our society is like vnto an arche of stones which would soone fall if one stone did not hinder and beare vp another S. Ambrose diuinly Lex naturae ad omnem nos stringit charitatem vt alter alteri tanquam vnius partes corporis deferamus And the saying of Cicero though an heathen is not heathenish Spurca eorum sententia qui ad se omnia referunt g Cice. lib. 7 ad Attic. ep 2. And both he and S. Ierom
vaine sophistrie in steade of true religion and such societies and such families whether of loue or of lust I can not well define which delight in latebris are worthy to be sent ad carceres that they may there liue in tenebris for it is fit to send corrupt humors which ouerloden and pester the bodie in latrinam For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them and finding such strength in the weakenesse of the multitude they beganne to plant their ramme and sette their force against kingdomes common weales and had thought vtterly to haue subuerted them but their companies were quickly dispersed and the greatest parte of these companions was destroyed by fire and sword a Polyb. li. 3. Now to speake somewhat of the liberties of a citie S. Paul when he was by the commandemēt of the magistrates apprehended being accused that he troubled the publike tranquilitie by seditious assemblies professing himselfe to bee a citizen of Rome hee appealed to Caesar b Act. 25. v. 11 though hee were by nation a Cilician by bloud an Israelite by tribe a Beniaminite yet because his father c Acto 22. v. 28. had beene a citizen of Rome the liberties were affoarded vnto him he likewise when he was commanded to be scourged pleaded for himselfe that he was a Romane d ibid. v. 25. But because the abundance of liberties of all the cities of Asia Africke and Europa are sufficiently knowne I will not stay any longer vpon this point but wil passe to matters of greater importance and more difficultie The ninth Chapter That the distinguishing of demesnes the difference of the degrees callings of men is according to the law of nations COnfusion breedeth alwaies contention partition peace according to the old prouerb Diuide et impera for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries as Abraham Lot in Palestine Masinissa and the Carthaginians in Numidia and Mauritania the Romanes and Nolanes in Italie the Romanes and Carthaginians in Spayne and Sicilie the Emperour Valens and the Gothes in Missia and the regions on this side Danubius through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes and his other sonne Honorius to whom he allotted Roome and all the occidentall countries and so Darius would haue made a partition with Alexander of the whole world that the one of them shold haue all on the one side of Euphrates the other all on the other side yet in the first age and infancie of the world this kind of partitioin was vnused and vnknowne as may appeare by these authorities first of Virgill who saith Ne signare quidem aut partiri limite campum Fas erat a Virgi Georg. 1. And of Tibullus non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi 3. And that of Seneca Nullus in campo sacer Diuisit agros arbiter populis lapis c Senec. in Hippoli act 2. yet the case was altered when Ouid writ thus Gentibus est alijs tellus data limite certo Romanae spatium est vrbis orbis idem d Ouid. 2. Fasto And vpon good reason was it altered for as Boetius saith well Dimensiones terrarum terminis positis vag antibus ac discordantibus populis pacis vtilia praestiterunt e Boeti in geomet And the great vse of limits and boundaries Plutarch sheweth when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur iniuriae iudicium si non seruarentur f Plut. in Num. pr. R. 15. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations bounds betwixt partie partie and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus and this idoll was made of stone g Plut. in Num. He was set in a chappell as not fit to be remoued hee was made of stone as hard to be remoued he was placed vpon a high rocke as not possible to bee remoued and to this idoll nothing was sacrificed but cakes pulse and the first fruites of the field the meaning doubtles of Numa was good if it had not beene signified set forth by an euill meane For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice Wherefore Salamon saith that which also is commaunded in Deuteronomie Thou shalt not remoue the auncient boundes which thy fathers haue made h Deut. 27. 17 Prou. 22. v 28. 23. v. 10. but the manner of diuiding lands dominions according to the custome of nations is fully set downe by M. Littleton though applyed to another purpose it is fiue-fold 1. By setting out an equal rate of the lands to be diuided 2. By the agreement of frends or intermediation of others 3. By casting lots 4. By writ de partitione facienda at the commō law the action de herciscunda familia at the ciuill law 5. By making an vnequall partition equall by a forrein reseruation i Littlet lib. 3. c. 1. Distinctions likewise of the degrees of men hath beene in all nations in all ages established obserued and vsed For the aduancing of noble men aboue them of lesse note and the preferring of the gentleman before the yeoman and peasant is very ancient and hath beene vniformely reteigned neither is it to bee maruelled at for nature her selfe hath tought the nations her schollers this lesson Trauaile through all her kingdome that is through the whole world you shall find this difference in force and of great validitie Consider the scituation of the celestiall orbes and ye shall note that the fierie heauen is placed aboue the chrystaline as more worthie both these aboue the firmament the firmament aboue the other Spheares as surpassing them Marke the birdes of the ayre ye shall perceyue that the Eagle the Phaenix and the Parott holde preheminence aboue the rest Looke vpon the riuers ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges Ganges better then Danubius Danubius better then Tagus Tagus then Padus Padus then Tempse Tempse then Seuerne Note the fishes of the sea yea shall find these to haue place aboue the rest the Whale the Dolphin the Sturgeon
late king of Spaine did to certaine Flemings which came to him as embassadors though they were neuer vnder his legeance or subiection their estates hauing bin free frō time immemorial as al histories of account do with clear voice pronoūce And Dionisius did imprisō the embassadors of the Sir acusanes because that city hauing driuen the tirant into his tower did set themselues at libertie e Plutarch in Dio. but Buchanan seemeth to erre which compareth two iust princes nay such as himself confesseth to be most iust f Buch. in lib. de re Scot. namely Hiero of Siracuse and Cosimo Medices Duke of Tuscana to two great theeues which did iustly diuide the pray did rule well though they came vniustly by it for how was Cosimo a robber if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment he shold perhaps haue suffered it to be subdued by some forreigne Lord or els haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests whereas that excellent man knew well how to keepe the ship in the hauen but it seemeth that the law of armes is not bee kept to an vsurper and therefore Constance the Emperour could not iustly bee reproued if hee had punished these embassadors which Iulianus being consorted with him in the Empire by the French armie did send vnto him as he threatned hee would for both Iulianus and the armie were rebels g Amm. li. 21 But this is to bee vnderstood onely of such rebelles and such vsurpers as haue beene sometimes in subiection and vnder the leigeance of some absolute Monarch for they which doe onely breake league or friendship or ancient entercourse are not to bee excluded from the right and benefit of embassage h Alber. Gentil l. 2. de legat c. 7. for how often did the Volscians Latines Spaniards and many others reuolt from the Romanes and yet sent embassadors to them without hurt or fear of danger i Liui. lib. 5. 6. 29. c. Appi. lib. 1 de bel ciuil they may lawfully claime the right of embassage because they had and enioyed it before their reuolt but otherwise it is of subiects because they had it not so neither is it reason that they should gaine any new right or haue any aduauntage by their crime or offence The thirteenth Chapter That by the law and practise of nations warre is not to be maintained against infidels onely because they are infidels and that princes in their realmes may inflict punishment for straunge worships IF religion be of that nature that no man ought against his will to bee cōpelled vnto it by force of armes and that be tearmed a new and vnusuall preaching which exacteth faith by blowes then it followeth that such war is not iust a c. 35. 23. q. 5. c. 1. 3. disti 45. c. 3. de babt It is a point of irreligiousnes saith Tertullian to forbidde the opinion conceiued of the deitie and that it shall not bee lawfull for mee to worship whom I would but I shall bee constrained to worship whom I would not b Tertul. Apolog. et ad Scap. Faith is to be perswaded not to be enforced saith Barnard c Barn cantic ser 66. And Hilarie saith that by a newe example men are compelled by armes to beleeue d Erasm pref Hill So Lactantius saith that religion must be established by words not by swords f Lactant. 5. Iustin 20. 21. so Arnobius saith to his aduersaries Because ye can do much by force and weapons doe ye therefore thinke that ye do exceed vs in the knowledge of the truth g Arnob. adu ge 4. Ye haue heard authors now heare reasons That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing but to the destroying of it That which standeth by his owne strength is not to bee vpheld by other supporters This opinion of not mouing armes for religion Franciscus a Victoria a verie learned man affirmeth h Victor relect to bee allowed of all writers none exempted therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to maintaine warre against the Indians And Didacus a Couarruuia a Spaniard likewise a learned Lawier i Couarer reg pre §. 10. doth vouch many Canonistes and Diuines which doe teach the same Baldus also affirmeth that it is not lawful to wage battell against infidels liuing with vs in peace and not being iniurious vnto vs k Bald. lib. 5. de iustir yet Didacus saith that Aquinas is of a contrarie opinion l Couar vbi supr And the fathers of the councell of Toletum did make a decree touching the afflicting of hereticks by warre which is recorded in the cannon lawe m c. 3. de her c. 5. dist 45. And Barnard mouing Lewis king of Fraunce against Asia saith Can any war seeme more iust to the then that which is most holy The Lacedemonians also amongst other obiections made this a cause of their warre amongst the Athenians and said that they were prophaners of religion and the Athenians did on the contrarie parte charge the Lacedemonians with this that they did drawe them that yeelded themselues out of the temples and killed them n Thuc. lib. 1. But surely such pretenses are but colorus of auarice and crueltie for there is no religion so barbarous which moueth vs to slay men of a contrarie religion o Na. Co. li. 1. King Ferdinand entitled the Catholike did couer all his dishonest desires with the vaile of religion as Guicchiardine noteth p Guicc li. 12. And Charles the Emperor the nephew of Ferdinād did not garnish his ambitious enterprises with any other colour q Iou. lib. 30. But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes and reuenging the iniuries done to Christ haue beene liked allowed of r Couar reg pecc §. co but that is an other question of defensiue war which without all doubt is lawful if it be maintained by them that may vndertake the defence lawfully But now the question is whether only by pretence of religion war may be vndertaken and this hath bin denied and the reason is ſ Alber. Gentill lib. 1. de iur bel c. 9. for that the cause of religiō is not betwixt man man but betwixt man and God neither is the right of any man preiudiced for a diuers religion because the bond of religion is onely to God it is a law betwixt God and man But here wee doe not speake of such which are altogether voide of religion and liue rather the life of beastes then of men For they like pirates the common and dayly enemies of all men are to be pursued by war to be brought by armes into compasse and to the order of ciuill
in this that Princes ought principallie to regarde the vnitie of Religion as a thing most pleasing vnto God who hath said by his holie Apostle Ephesi 4. vers 5. 6. Vnus Domiuns vna fides vnum baptisma vnus Deus et pater omnium uu 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If God Faith and Baptisme in generall and quocunque modo would haue serued Paule who in his heauenlie Epistles vseth not one word superfluous would not haue said vnus vna vnum would not haue vrged it would not haue exacted it would not haue cried for it Yet I would not haue weapons and armes to stir vp warre for Religion onelie if rebellion or disloialtie be not mixed with it For heresies may be punished and yet citra bellum without warre Let Lipsius therefore uu Trismeg de nat deo Dio lib. 42. be silent who saith that it is necessarie to contende by weapons whilest some goe about to preferre their religion before other some or else saith he it will be no religion which is cold and calme To this warlike note hote humor which argueth his want of pollicie and that he is neither wise as a serpent nor simple and milde as a doue It may be aunswered that warres for Religion are onelie there to be tolerated where there is no religion at all or where subiectes pretende religion as a cause of their rebellion not where there is diuersitie of religion Nay it is no religion which is hurt to the slaughter of Citizens and subiectes and the desolation of kingdomes or countries Are not the Aegyptians to be laughed at which with mutuall warres and woundes did afflict themselues for a monstrous and absurde religion on both sides uu Trismeg de nat deo Dio lib. 42. For it appeareth by Diodorus Siculus that the diuersitie of Religions was to this purpose brought into Aegypt that the people might disagree amongest themselues and so haue no leasure nor opportunitie to conspire against their king x Diodor. Sicul lib. 2. The Aegyptians saith one a Phil. de 10. are by nature wont of little sparkes to raise great flames For the Aegyptians as others report of them are men vnconstant raging proude iniurious desirous of nouelties and willing to chaunge a present state wish an erroniâ—us libertie b Vopisc Dio 39. 42. And therefore it was well considered by Augustus and Tiberius Emperours that no Senator that is no noble nor mightie man should gouerne Aegypt or should goe into Egypt c Tacit. annual 2. But that Princes may commaunde the due obseruation and practise of Religion according as God infourmeth their consciences by the rules of his sacred worde and the instruction of his true teaching spirite in their Realmes dominions and kingdomes wherein they haue absolute power and may with seuere punishments correct the frowardnes of men addicted to straunge worshippes may by the vnited practise of all common weales be conuinced A king saith Aristotle in auncient time was the Gouernor in warres the Ruler in iudgements the maintenour of Religion d Politic. lib. 3. c. 11. et 5. This hath been obserued of the Assirians Persians Medes Iewes Graecians Romanes and all other the most eminent Nations of the world e Iustin Procop. Cursius Varro D. August 3. 4. 5. et 6. de ciuit dei And so it is reported in Scripture of Asa that he tooke away the altars of the strange Gods and the high places and brake downe the Images and cut downe the groues and commaunded Iudah to seek the Lord God of their fathers took away out of all the cities of Iuda the high places and images therefore the kingdome was quiet before him f 2. Chronic. 24. And Iustinian the Emperour speaketh imperiously We command saith he the blessed Archbishops of Rome Constantinople Alexandria Theopolis and Ierusalem to receiue for ordeining and installing of Bishops onely that which this present law doth allow g Nouel constit 123. Archadius setteth downe both law punishment in some cases of religion If any Bishop refuse to communicate with Theophilus Atticus and Prophyrius he shall lose both his Church and his goodes if any that beare office they shall forfeit their dignitie hee shall lose his seruice if any of the common people let them be fined and exiled h Nicephor li. 13. c. 30. Sozome lib. 8. c. 24. I will not insist longer vpon a matter plaine but will cut off these lines to auoid tediousnes FINIS Faultes Leafe Corrections Agree fol. 4. a. disagree ar fol. 6. b. is prescribe 9. b. proscribe Dominus 13. b. dominus soundly 20. b. fondly and 21. b. one Aroutius 24. a. Acontius repeated 24. b. reprooued ar lesse 38. b. at least Cluitius 38. b. Cluilius victoria 41. a. victori Batari 42. b. Bataui farelet 43. a. forcelet repelit 44 b. repetit Latinum 54. b. Latium indice 54. b. iudice conuay 64. a. courage cibicall 64. b. ciuicall Fulminea 77. b. Fluminea Clesoninus 77. b. Cleonymus ipsas 81. a. ipsus Viriallius 83. b. Viriathus discerned 84. a. defended There want these wordes 90. a. if any souldier