subject to the people The same may be said concerning other writers of the Politicks who conceive it more agreeable to their design to behold rather the external appearance and daily administration of affairs than to weigh the right itself of the highest power LIV. True examples of the supreme power divided MOre pertinent is that which Aristotle hath written Between 〈◊〉 full Kingdom and a Laconical which is a meer principality some other species are interjected An example hereof as I suppose may be found in the Hebrew Kings for of these that they ruled in most things by the highest right I think it is impiety to doubt for the people desired such a King as their neighbours had but the Nations of the East were subject to their Kings in the most humble way And above we have noted that the whole Hebrew people was under the King And Samuel describing the right of Kings sufficiently shews that the people have no power left in themselves against the Kings injuries Which the Fathers do rightly gather from that of the Psalm Against thee only have I sinned Upon which place Hierom Because he was a King and feared not another And Ambrose Being a King he was in danger of no Laws because Kings are free from such bonds neither do any Laws bind them over to punishment being secured by their Soveraign power against man therefore he sinned not to whose restraint he was not obnoxious I see there is consent among the Hebrews that stripes were inflicted on the King offending against those written Laws exstant about the Kings office but those stripes among them had no insamy and they were of his own accord received by the King in token of repentance and therefore he was not beaten by an Officer but by one whom he was pleased to make choice of and at his own pleasure he was eased As to coactive punishments the Kings were so free from them that even the Law of excalceation as having in it something ignominious was not of force upon them The Hebrew Barnachmon hath a sentence exstant amongst the sayings of the Rabbins in the title of Judges No creature judgeth the King but the blessed God These things being so neverthelels I think some causes were exempted from the Kings judgement and remained in the power of the Synedry of LXX instituted by Moses at Gods command and by perpetual succession continued to the times of Herod Therefore both Moses and David call Judges Gods and judgements are called the judgements of God and Judges are said to judge not in the place of man but of God 〈◊〉 the matters of God are plainly distinguisht from the matters of the King where by the matters of God the mosâ—… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉 Gods Law The King of the Jews 〈◊〉 deny not exercised by himself certain capital judgements in which particulae Matmonides prefers him before the King of Israel which also is evinced by examples not a few both in the sacred Scripture and in the writings of the Hebrews Yet certain kinds of causes seem noâ—… permitted to the Kings cognizance viz. of the Tribe of the high Priest of the Prophet And hereof there is an argument in the history of the Prophet Jeremy whom when the Princes required unto death the King answered Behold he is in your power for the King can do nothing against you to wit in this kind of matters Yea and the person that for any other cause was impeached before the Synedry could not by the King be exempted from their judgement Therefore Hircanus when by power he could not hinder their judgement concerning Horod eluded the same by Art In Macedonia they that descended from Calanus as Calisthones in Arrian saith bare rule over that people not by force but by Law The Macedonians saith Curtius are accustomed to the Regal government yet are in a greater shadow of liberty than other nations For even the judgment of life and death was not in the Kings hand Of Capital matters saith the same Curtius by the old custome of the Macedonians the Army did enquire in time of Peace the Commons the power of the Kings prevailed no further than their authority could move There is in another place of the same Author another token of this mixture The Macedonians decreed according to the custome of their nation that the King should not hunt on foot without the attendance of his elect Princes or courtiers Tacitus relates of the Gothones They are now in greater vassalage under their Kings than other Germans nor are they yet depriv'd of all liberty For he had afore describ'd the principality by the authority of perswading not by the power of Commanding and after he expresseth a full Royalty in these words One commandeth without all exceptions not by a precarious right of governing Eustathius upon the sixt of the Odysses where the Commonwealth of the Phaeaces is described saith it had a mixture of Power of the King and of the States Something like it I observe in the times of the Roman Kings for then all matters almost went through the Royal hand Romulus reigned over us as he pleased saith Tacitus It is manifest at the beginning of the City Kings had all power saith Pomponius yet Halicarnassensis will have something excepted by the people even at that time But if we give more credit to the Roman Authors in some causes there lay an appeal from the Kings to the people as Senocâ—… hath noted out of Cicero's books de Republica out of the Pontifical books also and Fenestella shortly after Servius Tullus advanced to the Throne not so much by right as by the favourable breath of the people yet more abated the regal power For as Tacitus speaketh he establisht Laws which even the Kings themselves were to obey The less cause have we to wonder at that which Livy saith The power of the first Consuls differd from the regal in little more than that 't was annual Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm and in the first times of the Consuls For in certain affairs and those of the greatest moment the will of the people was a law if the Fathers would go before them with their authority and as it were prepare the bill which authority afterward the peoples power encreased was onely for a shew when the Fathers as Livy and Dionysius note began with their voices but the Assembly did what they pleased For all this in after times there remained somewhat of a mixture whilst as the same Livy speaketh the Government was in the hand if the Patricians that is of the Senate but the Tribunes that is the Plebeians had a share to wit a right of forbidding or interceding And so Isocrates will have the Athenian Commonwealth in Solon's time to have been an
necessity requires it For laws are wont and so they ought to be made by men with sense of humane imbecillity Now the law of which we speak seemes to depend upon their will whâ—… first consociate themselves into civill society from whom thenceforth a right flowes and comes unto the Rulers And these if they were asked whether their will was to impose upon all this burden to dy rather than in any case to repell by force the force of their superiours I know not whether they would answer it was their will unless perhaps with this additament if resistance cannot be made without very great perturbation of the Commonwealth or the destruction of very many innocent persons For what in such a circumstance charity would commend may be also I doubt not deduced into a humane Law One may say that rigid obligation to dy rather than ever to repell any injury of superiours proceedeth not from humane law but from divine But we must note Men at first not by divine precept but drawn of their own accord upon experience of the infirmity of divided families to defend themselves against violence closed together in the bond of civill society whence civill power hath its spring which therefore Peter calls a humane ordinance though elsewhere too it is called a Divine ordinance because God approved this wholsome institution of man But God approving humane law is supposed to approve it as humane and in a humane manner Barclay the most stour defender of Regall Power descendeth yet so farr as to grant the people and an eminent part thereof a right of defending themselves against immane cruelty when yet the same Author acknowledgeth the whole people to be subject to the King I do easily conceive the more value that is of which is conserved the more equity it is which give us an exception against the words of of the Law nevertheless indistinctly to condemn either single persons or a leâ—… part of the people which heretofore hath used the last safeguard of necessity so as to have respect in the mean time to the common good I scarce dare For David who except a few acts hath testimony of a life exactly conformed to the laws had about him armed men first four hundred and then a greater number to what purpose but to keep off violence if it should be offered But withall this is to be noted David did not this till after he had found both by Jonathan's discovery and by very many other most certain arguments that Saul sought after his life And then neither invades he Cities nor takes occasions of fighting but retreats and hides himself sometimes in the wilderness sometimes amongst other people and hath a religious care never to hurt his own Country Parallel to this may seem the action of the Maccabees For that some defend their arms upon this title as if Antiochus had not been King but an Invader I think it vain when the Maccabees and their followers in all the history never call Antiochus by any other but the name of King and rightly when long before the Hebrewes had acknowledged the Macedonian Power into whose right Antiochus succeeded As for that prohibition to set an alien over the people that Law is to be understood of voluntary election not of what the people was compeld to do drawn by necessity of the times And for that which others say that the Maccabees used the right of a people who had liberty to live by their own laws it is not firm neither for the Jews subdued first to Nebuchodonosor by the law of war by the same law were subject to the successors of the Chaldaeans the Medes and Persians all whose Empire devolved to the Macedonians Hence are the Jewes call'd by Tacitus The most vile part of those that serve while the East was in the power of the Assyrians Medes and Persians Nor did they covenant for any thing with Alexander and his successors but without any condition came under their dominion as before they had been under Darius But if the Jews were sometimes permitted to have open exercise of their Rites and Laws this was a precarious right arising from the favour of the Kings not from any law or condition annexed to the Government There is nothing therefore that can clear the Maccabees besides extreme and most certain danger to wit so long as they conteind themselves within termes of selâ—… defense so as to retire into devious places after David's example to secure themselves and not to enter into battaâ—… but when they were assaulted LXIX The King's Person Sacred MEan while this caution is to be observed even in such a danger the person of the King must be spared which they that think David did not out of any necessity of duty but out of some higher design are much mistaken For David himself plainly said No man can lay hands upon the King and be innocent Well he knew 't was written in the law Thou shalt not revile the Gods that is the highest Judges nor curse the Ruler of thy people In which law the speciall mention made of the eminent powers evidently shewes something speciall to be commanded Wherefore Optatus speaking of this fact of David saith He was hindred by a full remembrance of the divine commands And he puts these words into Davids mouth I was willing to orecome my enemy but that I chose rather to keep the Command of my God Now for evill words that are false it is not lawfull to cast them at a private person against a King therefore we must not use them when they are true For as the Writer of the Problems which bear Aristotles name affirmeth He that reproacheth the Ruler is injurious to the City And if the Ruler must not be offended with the tongue much less certainly with the hand whence we also read that David's heart smote him for violating the garment of the King so much did he apprehend the sanctitude of his person And not without cause For sith the highest power cannot but ly open to the hatred of many the Rulers person was with a peculiar fense to be secur'd The Romans made a Constitution that the Tribunes of the common people should be inviolable The Essenes had a saying that Kings are to be accounted sacred It is in Curtius that the nations which are under Kings reverence their Kings as Gods And Artabanus the Persian saith Amongst our many good Laws this is the best that the King is to be reverenced and adored as the Image of God the Saviour of all LXX Of Christian subjection T Is a greater question whether so much as was lawfull for David and lawfull for the Maccabees be allowed unto Christians whose Master so often commanding his disciples to undertake the cross seems to require a patience more exact Certainly where Superiours threaten Christians with death for religion sake Christ gives them
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
more meet for the Citizens than the City For in the word free 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Appian speaks there was a manifest fallacy LX. Of Agreements personal and real IT is also a frequent question pertinent here concerning Agreements personal and real And truly if the Treaty was with a free people no doubt but what was is promised them is in its own nature real because the subject is a permanent matter Yea though the state of a Commonwealth be chang'd into a Kingdom the League will remain because the body remains the same though the head being chang'd and as we have said above the Empire which is exercis'd by a King ceaseth not to be the empire of the people An exception it will be if the cause appear to have been proper to that state as if free Cities contract a League to maintain their liberty But if it be contracted with a King the League will not presently be esteemed personal for as it is rightly said by Pedius and Ulpianus the person is for the most part inserted into the Agreement not that the Agreement may be personal but to shew with whom 't is made But if it be added to the League that it shall be perpetual or that it is made for the good of the Kingdom or with himself and his successors such an addition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is usual saith Libanius in his Oration for Demosthenes or for a time defined now it appears plainly to be real Such it seems was the league of the Romans with Philip King of Maccdon which when Perseus his son denyed to concern him a war followed upon that ground Moreover other words and the matter it self sometimes will afford a conjecture not improbable But if the conjectures be equal on both sides it will remain that the favourable be accounted real the odious personal Leagues made for peace or for commerce are favourable those made for war are not all odious as some think but the defensive have more of favour the offensive of burthen Add hereunto that in a league for any war it is presumed that regard is had to the prudence and piety of him who is treated with as one who seemed not likely to undertake a war neither unjustly nor yet rashly As to that saying Societies are broken off by death I do not allege it here for it perteins to private societies and to the Civil Law Therefore whether by right or wrong the Fidenates Latins Etruscians Sabins departed from their league upon the death of Romulus Tullus Ancus Priscus Servius cannot be rightly judged by us because the words of the League are not extant Wherunto that controversy in Justin is not unlike Whether Cities which were tributary to the Medes the Empire being changed had changed their condition For it is to be considered whether in the agreement they had committed themselves to the trust of the Medes But 〈◊〉 Bodin's argument is in no wise to be allowed that leagues do not pass to the successors of Kings because the vertue of an oath goes not beyond the person For the obligation of an oath may bind the person only and yet the promise it self may oblige the heir Neither is it true which he assumes that leagues depend upon the oath as their firmament when for the most part there is efficacy enough in the promise it self to which for Religion sake the oath is added The commons of Rome in the Consulship of P. Valerius had sworn they would come together at command of the Consul L. Quintius Cincinnatus succeeds him being dead Some Tribunes cavill as if the people were not bound by their oath Livie's Judgment follows That neglect of the Gods which this age is guilty of was not yet nor did every one by interpreting for himself make his oath and the Laws comply with his affections but rather accommodated his own manners unto them LXI A League made with a King is extended to him being expelled not to the Invader CErtainly a League made with a King remains although the same King or his succor be driven out of his Kingdom by his Subjects For the right of the Kingdom remains with him however he hath lost the possession On the contrary if the Invader of anothers Kingdom the rightfull King being willing or the Oppressor of a Free people before he hath gotten sufficient consent of the people be assalted by war nothing will thereby be done against the league because those have possession they have not right And this is that which T. Quintius said to Nabis We have made no friendship nor society with thee but with Pelops the just and lawfull King of the Lacedemonians These qualities of King successor and the like in leagues do properly signify a right and the Invaders cause is odious LXII To whom a promise made to the first is due when more have performed a thing together CHrysippus of old had handled this question whether the reward promised to him who came first to the mark be due to both if they came together or to neither of them And truly the word first is ambiguous for it signifies either him who goes before all or him whom no man goes before But because the rewards of vertues are favourable it is the 〈◊〉 answer that Both concur to the reward though Scipio Caesar Julian dealt more liberally and gave full rewards to them that ascended the walls together LXIII How far States are accountable for damages done by their Subjects KIngs and Magistrats are responsible for their neglect who do not use the remedies which they can and ought for the restraint of robbery and piracy upon which score the Scyrians were antiently condemnd by the Amphyctiones I remember a question was propos'd upon the fact when the Rulers of our Country had by their letters given very many power of taking prizes from the enemy at Sea and some of them had spoyled our friends and their countrey being forsaken wandred about and would not return when they were recalled whether the Rulers were faulty upon that account either because they used the service of naughty men or because they had not required of them caution I gave my opinion that they were bound no farther than to punish or yield the offenders if they could be found and to take care that legal reparation might be made out of the goods of the Robbers For they were not the cause of the unjust spoil that was made nor were partakers of it in any wise yea they forbad by their Laws any hurt to be done their friends That they should require caution they were obliged by no Law seeing they might even without letters give all their sublects power to spoil the enemy which was also done of old Nor was such a permission any cause why damage was done to their friends when even private men might without such permission send forth ships of war Moreover
may suffer for the evil deed of their King or Governour We do not mean if the peoples consent be added or any deed of theirs by it self worthy of punishment but we speak of that contract which springeth from the nature of that Body whose Head is the King and members were the rest God indeed for David's sin destroyed the people with pestilence and truly as David thought being innocent but it was God who had most full and absolute right over their lives Mean while the punishment was not the peoples but David's for as a Christian writer saith It is the most bitter punishment to Kings that do amiss to see their people suffer This is all one saith the same Author as if he that hath done ill with the hand should be Beaten on the back So Plutarch in the like argument compares it to a physicians method in curing one part to open a vein in another Why men may not do so we have said afore The same is to be concluded of punishing particulars in things proper to them that have not consented for the offence of the Society And lastly the cause why an Heir being liable to other debts is not liable to the punishment of the deceased is for that the Heir bears the persâ—… of the deceased not in respect of meâ—… which are merely personal but of goods which are engaged Dion Prusaeensis What the Ancestors owed their posterity must pay for they have not refused the Inheritance CV OF UNJUST CAUSES Causes of War some are justifick others suasory POlybius who first noted the difference calls the former 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pretences because they are wont openly to be shewed Livy several times useth the word Title the later he stileth by the general name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes So in the war of Alexander against Darius the Pretence was Revenge of Injuries which the Persians had done the Grecians the Cause was desire of Glory Empire and Riches whereto was added great Hope of facility conceived from the expeditions of Xenophon and Agesilaus So the pretence of the second Punick war was the Controversy about Saguntum the cause was the indignation of the Carthaginians for the Agreements which the Romans in unequal times had extorted from them and their courage raised by the prosperity of their affairs in Spain noted by Polybius Likewise Thucydides judgeth the true cause of the Peloponnesian war to have been the Athenians growing Greatness which brought them into suspicion with the Lacedemonians but the pretence was the controversy of the Corcyreans Polideans and other things where yet be promiscuously useth the termes pretence and cause There is the same difference in the Oration of the Campanians to the Romans when they say they fought against the Samnites in word for the Sidicines in deed for themselves because they perceived when the Sidicines were consumed the fire would pass on to them And Livy relateth how Antiochus took arms against the Romans in shew for the death of Barcilla and some other matters is truth because he had great hope of success by reason of the decayed disciplin of the Romans So Plutarch observeth it was not truly objected to Antony by Cicero that He was the cause of the Civil war when Caesar resolved upon a war had only taken the pretext from Antony CVI. Wars without any cause are wild and brutish SOme upon neither of these causes are carried into wars greedy of dangers as Tacitus speaks for dangers sake The faults of these men exceed every human name and is by Aristotle termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serity Of these Seneca I may say it is not cruelty but ferity which takes pleasure in blood we may call it madness whereof there be sundry sorts and none more evident than that which runneth to the slaughter of men and cutting them to pieces To which sentence very like are those words of Aristotle Very cruel indeed is he to be accounted who makes his friends his enemies out of greediness to fight and shed blood Dion Prusaeensis Without cause to be carried into wars and fights is meer madness that seeks mischief to it self And the forecited Seneca saith No man is so inhuman as to wast human blood or very few CVII Against wars which have not justisick causes or not truly such BUt the greatest part of those that go to war have suasory causes and those either without justifick causes or with them Some care not at all for justisick causes of whom that may be said which is in the Roman Lawyers He is a Robber who being asked of the cause of possessing brings no other but that he doth possess Aristotle of those that perswade to war Men that oftentimes regard not at all whether it be just or no to subdue their harmless neighbours Such a one was Brennus who said Let the strongest take all Such a one was Annibal in Silius Whose right was his sword Such also was Attila and such are all that use these words No matter how the war begins If we can bring it to our ends To these men you may fitly apply that of Augustin To wage war against the neerest and thence march on to others and out of a desire of rule to conquer Nationâ—… that provoke you not what is it to be named but Great Robbery In Cicero we read The height of mind which is discoverd in dangers and labours if it want justice is so far from vertue that 't is rather immanity and an enemy to all humanity Andronicus Rhodius Who for to gain much receive whence they ought not these are call'd evil impious and unjust such as are tyrants and the Plunderers of Cities Others do allege causes as it were justifick which being weighed in the scale of right reason are found unjust and it appears as Livy speaks not a contention about right but an offer of violence Many Kings saith Plutarch use the two names of Peace and war not to that which is just but to that which is expedient CVIII Fear of an uncertain danger no just cause of war AMong the unjust causes of war is fear taken from neighboring power Which fear we have said above is not sufficient For that Defense may be just it ought to be necessary it is not so unless we be sure not only of the power of a neighbour but of his will sure by that certainty which hath place in matter of morality Wherefore their opinion is not to be allowd who make it a just cause of war if a neighbour hindred by no agreement build a Castle on his own ground or some other fortification which may sometime do us hurt For against such fears contrary fortifications in our land and the like remedies not warly forces are to be provided Unjust therefore were the wars of the Romans upon Philip of Macedonia of Lysimachus upon Dèmetrius unless
have â—…alled for not those of men but of Angels And whatsoever he did by right of his power he did it not by human but divine vertue even then when he cast the buyers and sellers out of the Temple For the scourge was not an instrument but a sign of divine anger as at other time spittle and oil a sign healing not a medicine Augustin upon that place of John Hearken yee Jews and Gentiles Circumcision and uncircumcision Herkin all ye Kingdoms of the earth I hinder not your domination in this world My Kingdomn is not of this world Do not ye fear most vainly as Herod the Great feared when he heard of the birth of Christ and slew so many Infants hoping to destroy him being more cruel in his fear than in his anger My Kingdom saith he is not of this world What would you more Come unto the Kingdom which is not of this world Come by believing and do not rage by fearing Paul among other things forbids a Bishop to be a striker To rule by a necessity imposed i. e. which proceeded from human force is the part of Kings nâ—… of Bishops said Chrysostom And 〈◊〉 where We have not power granted us to restrain men from offences by authority of our sentence i. e. such as conteins in it a powerful execution by a ruling or military hand or a deprivation of any human right whatsover Hence it sufficient appears that Bishops as such have no right to reign over men after a human way Hierom comparing a King and Bishop together saith The one rules the unwilling the other the willing But whether Kings themselves may wage war in the way of punishment against those that reject Christian Religion is above inquired CXII Of a desire to fulfill Prophecies THis also I will add not in vain buâ—… because comparing new occurrences with old I foresee much mischief except care be taken that war is not justly grounded upon a hope conceiv'd out of some exposition of Divine Prophecies For beside that Oracles not yet fulfill'd can hardly be interpreted with any certainty without a prophetical spirit the times even of things certain may be hid from us And moreover a prediction without express command of God giveth no right for by wicked men or unjust actions God doth oft-times permit the things he hath foretold to come to pass CXIII Of that which is due not by strict justice but otherwise ANd this is also to be known if one owe a thing not by proper justice but by another vertue as liberality favour mercy charity that as it cannot be required in the Court so neither can it be demanded by arms For to both of these ways it is not sufficient that the thing required ought to be done by some moral reason but moreover it is needfull there be in us a certain right unto it which right sometimes divine and human Laws do give also about the dues of other vertues and then a new kind of debt ariseth perteining unto Justice But when that is wanting war upon this cause is unjust as that of the Romans upon the King of Cyprus for his ingratitude For he that hath given a benefit hath no right to exact a recompence otherwise it were not a benefit but a contract CXIV A distinction of war unjust in respect of the cause or of some accident ONe thing more is to be noted It often falls out that a war may have a just cause and yet the action receive some stain from the minde of the doer either for that some other thing not unlawful by it self doth more the mind than the right to wit desire of honour or some profit whether private or publick which is expected from the war considerd apart from its justifick cause or else for that an affection plainly unlawfull is with him as the joy of one pleasing himself in anothers evil without respect of good So Aristides in his second De societate saith the Phocenses perished deservedly but Philip did not well when he destroyed them not being studious of religion which he pretended but ambitious to enlarge his Empire Profound ambition and avarice as Sallust speaks is one cause of war and that an old one And Tacitus saith Gold and Power are the principal causes of wars Whither you may also refer that of S. Augustin Desire of hurting Cruelty of revenging an unpeaceable and unplacable mind fierceness of rebelling lust of domineering and the like these are the things that in wars are justly blamed But these where a just cause is not wanting do indeed argue a crime yet do they not make the war properly unjust whereupon neither is restitution due for the same CXV Of doubtfull causes Whence Doubts do arise in moral matters IT is most true which Aristotle hath written that there is not so much certitude in moralls as in the Mathematicks because the Mathematicks separate forms from all matters and the forms most part are such that they have nothing interposed as between straight and crooked there is no medium But in moralls even the least circumstances varie the matter and the forms here are wont to have something between them with such latitude that the access is neerer sometimes to this extreme sometimes to that For so twixt that which ought to be done and that which ought not to be done is interposed that which may be done but is neerer now to this now to the other part whence ambiguity ariseth often as in the dusk air or in warm water And this is that which Aristotle saith Oftentimes it is hard to judge which is to be preferd Andronicus Rhodius saith It is to discern that which is truly just from that which seemeth so CXVI Nothing is to be done against ones own judgment though erring THis is principally to be observed that although a thing be just in it self bâ—… done by one who having weighed all thinks it unjust the act in vitious For this is that which the Apostle S. Paâ—… saith Whatsoever is not of faith is for Where faith signifies the mindes judgment about any matter For God haâ—… given unto men a judging faculty as a guide unto their actions by contempâ—… whereof the minde becomes brutish Now it often comes to pass that the Judgment shews no certainty but sticks and 〈◊〉 this hesitation cannot be cleared by attent consideration that if Cicero must be followed Their precept is good that serbid to do any thing which you doubt whether it be right or wrong The Hebrew Masters say Abstein from a doubtfull matter But this cannot have place where one must do one thing of the two and it is doubted of both whether it bâ—… right for then a man may chuse the which seemeth to him the least evil Foâ—… that always where the choice is ineâ—…table puts on the appearance of good Oâ—… evils take the least saith Aristotle and
about those things which lead thither The end is ever sâ—…e Good or at least the Avoidance of some evil which may be in the stead of good The things that lead to the one or other are not desired by themselves but as they lead thither Wherefore in Debates are to be compared both the ends among themselves and the effective faculty of those things that lead to the end to produce the same For as Aristotle hath rightly noted 〈◊〉 which bring forth action are of two sorts from that which is good and from that which is possible Which comparison hath three Rules The first is If the thing under debate seemeth to have in a moral estimation equal efficacy to Good and to Evil it is so to be chosen if the Good hath somewhat more of good than the Evil hath of evil Whence Andronicus Rhodius where he describes the magnanimous man saith He will undergo dangers not for every cause but for the greatest Another Rule is If the Good and Evil seem equal which may proceed from the thing in question that thing is eligible if the efficacy to Good be greater than to evil The third If both the Good and the Evil seem to be unequal and the efficacy of the things no less unequal that thing will be eligible so that the efficacy to good be greater being compar'd which the efficacy to evil than the Evil it self is being compar'd to the Good This have we set down after a more exact manner But Cicero discourseth to the same purpose in a plainer way when he saith We must take heed we do not offer our selves to perils without cause than which nothing can be more foolish wherefore in running hazards the custome of Physicians is worthy of our imitation They apply gentle remedies to light diseases but in the more grievous are compelld to use more perillous and doubtful Medicines Wherefore he saith it is a wise mans part to take the opportunity and the rather if he may obtain more good by success of the matter than he can fear evil upon the miscarriage In another place Where no great emolument is possible and a little mischance will be hurtfull what need is there to run the hazard Dion Prusaeensis Be it unjust and unworthy which is sufferd Yet must we not therefore in a contentious humour expose our selves to greater incommodities And again We seek to rid our selves of burthens that do sorely pinch us but if they be portable and we fear we shall change them for heavier loads we compose our selves to patience Aristides also Where our fear is greater than our hope have we not great reason to be cautious CXXV An Example of a Debate about Liberty and Peace LEt us take an example from that which Tacitus saith was of old consulted of among the Cities of Gallia Whether they should prefer Liberty or Peace understand Civil Liberty that is a right of governing the Commonwealth by themselves Which right is full in a popular state tempered in an optimacy especially such wherein none of the Citizens is excluded from honours Understand also such a peace whereby is avoided a destructive war that is as Cicero expresses it wherein all is in danger to be lost or where a right estimation of the future seemeth to portend nothing els but even the destruction of the whole people Which was the case of the people of Jerusalem besieged by Titus No man is ignorant what Cato would say here who chose rather to dy than to submit to One to which purpose is that sentence It is none of the hardest vertues to embrace death to avoid slavery and many the like But right reason dictates otherwise to wit That life which is the foundation of all good things temporal and eternal is of more worth than Liberty whether you take both in one man or in a whole people Wherfore God himself imputes it as a benefit that he doth not destroy men but deliver them up to servitude And elswhere he perswadeth the Hebrews by the Prophet to give up themselves to serve the Babylonians that they may not perish by famin and pestilence That then which was praised by the Antients that Saguntum did being besieg'd by the Carthaginian is not to be praised nor the things that lead thither For the internecion of a people in this kind of things is to be accounted as the greatest Evil. Cicero in his second De Inventione setteth down this example of necessity It was necessary the Casilinians shou'd yield themselves to Annibal though that necessity had this adjunct Except they would rather perish with hunger Of the Thebans who lived in the times of Alexander the Macedonian is extant this opinion of Diodorus Siculus Being more valiant than wiâ—…e they brought ruine upon their Country Of that foresaid Cato and Scipio who after the Pharsalick Victory would not submit to Caesar Plutarch passeth his judgment thus They are to be blamed as they that lost many and gallant men in Africa to no purpose That which I have said of liberty I mean of other things desirable if there be a more just or an equal expectation of a greater evil opposite For as Aristides saith well It is the manner to save the ship by casting foâ—… the lading not the passengers CXXVI He that is not much the Stronger ought to remit punishment MOreover in the exacting of punishments it is most observable that war should never be entred into upon that ground against him who hath equal forces For as a Civil Judge must so he that will avenge wicked acts by war must be much stronger than the offender Nor doth prudence only or Love of his people require that One abstein from a perillous war but Justice too that is governing Justice which by the very nature of government obligeth the superiour no less to care for inferiours than the inferiours to obedience Whereto is consequent what is rightly delivered by Divines that a King who for light causes or for to exact punishments not necessary and drawing after them great danger undertaketh a war is bound to his subjects to repair the damages arising thence For though not to the enemies yet to his own people injury is done by him who upon such causes involves them in so great an evil Livy saith War is just to whom it is necessary and their arms are pious who have no hope left them but in arms Ovid thus Let not the soldier armed be But to disarm the Enemie CXXVII War not to be undertaken but upon necessity or upon greatest cause with greatest opportunity THere is then seldom cause of taking arms which either cannot or ought not to be omitted to wit when Laws are as Florus speaks worse than war Seneca bids us venture upon dangers when we fear no less dangers if we sit still or greater so Aristides when it appears our estate will be worse if
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
other way to preserve themselves or because being opprest with want they can have no sustenance orâ—… other terms For if the Campanians 〈◊〉 old being subdued by necessity subjected themselves to the Roman people in this form The people of Campania and the City Capua our Lands the Temples of our Gods all divine and humane things we yield up into your hand O ye Con'cript Fathers and fundâ—… people when they desired to subj a themselves to the dominion of the Romans were not accepted as 〈◊〉 saith what hinders but that a people after the same manner may yield up 〈◊〉 self into the hand of one propotent and over-mighty man Moreover it 〈◊〉 happen that some Father of a Family possessing a large estate of Lands may please to receive no inhabitant 〈◊〉 to his possession but upon such condtion or that some Master having 〈◊〉 great number of servants may manuâ—… and set them at liberty on conditioâ—… that they be subject to his Government and pay him tribute VVhich cases 〈◊〉 not without their examples Tacitâ—… concerning the servants of the Germans saith Every one is Master of his own house and estate The Lord impiâ—…seth and requireth of them as his farmers a rent of Corn or Cattle or cloths and the servant so far is subâ—…ect Adde that as Aristotle hath said some 〈◊〉 are by nature servants i. e. fit for servitude so also some Nations are of this disposition that they know better how to be ruled than how to rule Which the Cappadocians seem to have thought of themselves who preferred the life under a King before the Liberty offer'd them by the Romans and affirmed they could not live without a King So Philostratus in the life of Apollonius saith It is a folly to bestow Liberty upon the Thracians Mysians Getes which they would not gladly accept And moreover some might be moved by the examples of those Nations which for many ages lived happily enough under a Government plainly regal The Cities under Eumenes saith Livy would not have changed their fortune with any free City whatsoever L. 42. Sometimes also the State of the City is such that it cannot be safe unless under the free Empire of One which conceipt many prudent men had of the Roman as the case stood in the time of Caesar Augustus For these causes therefore and the like it may not only possibly but doth usually come to pass that men subject themselves to the Empire and power of another which also Cicero notes in the second of his offices XLIII The same further proved FUrther yet by a just War as we have said afore as private dominion may be acquired so also civil dominion or the right of reigning without dependence Neither do I speak this only in behalf of the Empire of One where that is receiv'd I would not be so mistaken but the same Arguments are of force for conserving the Empire of many where many nobles or states have this same right of supreme power and govern the City the Plebeians being excluded What that no Common-wealth hath ever been found so popular wherein some such as are very poor or foreigners and also Women and Youth are not kept from publick Counsels Besides some States have other people under them not less subject than if they did obey Kings Whence that question Is the Collatin people in their own power and the Campanians when they had yielded up themselves to the Romans are said to be under the power of others Many are the examples to this purpose and they are all of no value if we once grant this that the right of ruling is alwaies subject to the judgement and will of them who are ruled But on the contrary it is evident both by sacred and prophane history that there are Kings that are not inferiour to the people though taken all together If thou shalt say saith God speaking to the people of Israel I will set a King over me and to Samuel Shew unto them the right of the King that shall reign over them Hence is a King called the Anointed over the people over the inheritance of the Lord over Israel Salomon King over all Israel So David giveth thanks to God for subduing his people under him The Kings of the Nations saith Christ bear rule over them And that of Horace is well known Commands of Kings their subjects move And Kings are subject unto Jove Seneca thus describes the three forms of Government Sometimes the people are they whom we ought to fear sometimes if the Discipline of the Common-wealth be so that most things be transacted by the Senate the gracious men therein are feared sometimes single persons to whom the power of the people and over the people is given Such are they who as Plutarch saith have a command not only according to the Laws but over the Laws also and in Herodotus Otanes thus describes a single Empire to do what one pleaseth so as not to be accomptable to any other and Dio Prusaeensis defines a Kingdom to have command without controul Pausanias opposes a kingdom to such a power as must give account to a superiour Aristotle saith there are some Kings with such a right as else where the Nation itself hath over it self and that which is its own So after that the Roman Princes began to take upon them an Authority truly regal the people is said to have conferred upon them all their Authority and power and that over themselves as Theophilus interprets Hence is that saying of M. Antonius the Philosopher None but God alone can be judge of the Prince Dion of such a Prince He is free having power over himself and the Laws that he may do what him pleaseth and what likes him not leave undone Such a kingdom was of old that of the Inachidae aâ—… Argos far different from the Athenian Common-wealth where Theseus as Plutarch tells us acted only the part of a General and Guardian of the Laws in other respects not superiour to the rest Wherefore Kings subject to the people are but improperly called Kings as after Lycurgus and more after the Ephori were established the Kings of the Lacedemonians are said to have been Kings in name and title not really and indeed Which example was also followed by other States in Greece Pausanias Corinth The Argives in love of equality and liberty have long since very much abated the regal power so that they have left the Sons of Cisus and his posterity nothing beside the name of a Kingdom Such Kingdoms Aristotle saith do not make any proper kind of Government because they only are a part in an Optimacy or Populacy Moreover in Nations that are not perpetually subject unto Kings we see examples as it were of a Kingdom temporary which is not subject to the people Such was the power of the
their causes before judges of their own constitution In the last kinde the confederates have no right of cognizance Therefore when Herod voluntarily carried to Augustus certain accusations against his sons You might said they punish us your self both as a father and as King And Scipio when Annibal was accus'd at Rome by certain Carthaginians said the Conscript Fathers ought not to interpose in a business of the Carthaginian Commonwealth And herein as Aristotle teacheth a confederacy and a commonwealth do differ that Confederates take care no common injury be done unto them not that the Citizens of a Confederate Commonwealth do no injury one against another LVII Another Objection answered IT is objected also that in histories he that is superior in the league is sometimes said to command he that is inferior to obey But neither ought this to move us For either it is treated of things pertaining to the common good of the Society or of his private utility who is superior in the league In common affairs out of time of Assembly even where the League is equal the custome is for him who is chosen Chief of the league to have command over his Confederates as Agamemnon over the Graecian Kings the Lacedaemonians over the Graecians afterward and after them the Athenians In the Speech of the Corinthians in Thucydides we read It becomes them that are Princes of the league not to seek their own particular advantage but content themselves with an eminency above the rest in taking care of the common Interest Isocrates relates that the antient Athenians had the conduct of Greece and the charge of all their Fellowes but so that they left them all their liberty entire This the Latiâ—… call Imperare to command the Greek more modestly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to order The Athenians when the conduct of the war against the Persians was committed to them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Thucidides they ordered so the Commissioners from Rome to Greece were said to be sent thither for ordering the state of the free Cities whâ—… towns should contribute money against the Barbarians what should provide stips Now if he doth this who is only chief in a league no marvell he doth the same who is superior in a league unequal Wherefore Empire in this sense that is the conduct of affairs takes not away the liberty of others But in those things that concern the proper utility of the Superior his Requests are usually call'd Commands not by right but by likeness of the effect as the Desires of Kings are so called and as Physicians are said to rule their patients Livy Before this Consul C. Posthumius never was any one in any thing a charge or burthen to our Confederates therefore the Magistrats were furnisht with Mules tents and all other necessaries that they might not command such things from our Fellows Mean while t is true it often comes to pass that the Superior in a league if he much excell in strength by little little usurps an Empire properly so calld especially if the league be perpetual with a right of bringing in Garrisons into towns as the Athenians did when they sufferd an appeal to be made unto them from their Fellows which the Lacedemonians never did In which times Isocrates compares the Empire of the Athenians over their Confederates to a Kingdom So the Latins complaind they endured servitude under the shadow of a league with Rome so the Etolians of a vain shew and empty name of liberty and the Achaians afterward that a league in appearance was now become a precarious servitude So in Tacitus Civilis the Batavian complaineth of the same Romans We are not Associats as heretofore but are esteemed as slavos and in another place A miserable slavery is falsly named peace Eumenes also in Livy saith the Fellows of the Rhodians were Fellows in word indeed subjects to their Empire and obnoxious And Magnetes that in shew Demetrias was free but indeed all things were done at pleasure of the Romans So Polybius notes the Thessalians had a seeming liberty but really were under command of the Macedontans When these things are done and so done that patience passeâ—… into a right of which elswhere then either they which were Fellows become Subjects or at least there is a partition of the supreme power such as we have declared above to be possible LVIII That the highest power may consist with paying of Tribute I See no cause to doubt but they that pay a certain Tribute either for redeeming of injuries or to gain safeguard such as were the Hebrew Kings and of the neighbouring nations after the time of Antonius may have the highest power although this confession of their weakness diminish somewhat of their dignity LIX That the highest power may be holden in Fee TO many it seems a more difficult question concerning feudal obligation but it may easily be solved out of that which hath been said For in this contract which is proper to the German Nations nor is any where found but where the Germans have seated themselves two things are to be considered Personal obligation and Right over the thing Personal obligation is the same whether one by feudal right possess the right it self of Governing or any other thing also placed else where Now such an Obligation as it would not take away from a private man the right of personal liberty so neither doth it take away from a King or people the right of the highest power which is civil liberty Which is most apparently to be seen in the free feuds which they call Franca which consist not in any right over the thing but in personal obligation onely For these are nothing but a kind of unequal league wherof we have spoken wherein the one party promiseth aid and service the other safeguard protection Suppose also that aid was promised against All which Feud they now call Ligium for that word was of larger signification this detracteth nothing from the right of the highest power over subjects not to mention now that there is alwayes a tacit condition while the war is just of which elswhere But as to the right over the thing truly it is such that the right it self of governing if it be holden in Fee may be lost either the family being extinct or also for some sort of crimes Yet in the mean it ceaseth not to be highest for we must distinguish as hath been said between the thing it self and the manner of having it And by such a right I see many Kings constituted by the Romans so that the royal family exspiring the Empire should return to themselves which is noted by Strabo concerning Paphlagonia and some other LX. The Right and the Exercise of it distinguished MOreover both in Empire and Dominion we must distinguish the Right from the Use of right or the first act from
them to execute publick revenge And I am of Plutarch's opinion that the same is lawfull if before the invasion a publick Law were extant giving power to every one to kill him that shall adventure to do this or that which falls under sight as that being a private man shall get a guard about him or shall invade the Fort that shall slay a Citizen uncondemned or not by lawfull judgment that shall create magistrats without just suffrages Many such Laws were extant in the Cities of Greece in which therefore the killing of such Tyrants was to be esteemed Lawfull Such was at Athens the Law of Solon revived after the return out of the Piraeeum against the overthrowers of the popular State and such as had born offices after the overthrow of it As also at Rome the Valerian Law if any one without the peoples will should take the authority of a Magistrate and the Consular Law after the Decemvirate that none should create a Magistrate without appeal whosoever had done so it should be lawfull to kill him Moreover it will be lawfull to kill the Invader by the express authority of the rightfull Governour whether King Senate or People As also of the Protectors of Children that are Kings such as Joâ—…ada was to Joas when he dethroned Athalia Unless in these cases I cannot yield it lawfull for a private person by force to evpell or kill an Invader of the highest power The reason is because it may be the rightfull Governour had rather the Invader should be left in possession than occasion given to dangerous and bloody Commotions that do usually follow upon the violating or slaying of those men who have a strong faction among the people or forein confederates also Surely it is uncertain whether a King or people be willing the State should be so endangered and without knowâ—…ege of their wâ—…l the force cannot be just Favonius said Civil war is worse than unlan full and usurped Goverment And Cicero To me any peace with our Countrey-men seemeth more profitable than Civil war Better it had been said Titus Quintius the Tyrant Nabis had been let alone at Lacedemon when he could not otherwise be thrown down but with the grievous ruine of the Commonwealth likely to perish in the vindication of her liberty To the same purpose is that of Aristâ—…hanes A Lyon is not to be bred in a City but if he be brought up he must be kept Verily seeing it is a most weighty deliberation whether peace or liberty be to be preferd as Tacitus speaks and in Cicero's opinion it is a politick question of greatest difficulty Whether when our Country is oppressed by an Usurper all endeavour is to be used against him although the Common-wealth be thereby extremely endangered Single persons ought not to arrogate unto themselves that judgment which belongs to the people in common Nor can that saying be approv'd Wee pull the proud Usurpers down That Lord it o'r the willing Town So did Sylla answer being asked why he troubled his Country with taking arms That I may free it from tyrants Better is the advice of Plato in an Epistle of his to Perdicca In the Common-wealth contend so far as thou canst approve thy doings to thy Citizens it is not fit to offer violence neither to thy parent nor to thy country The sense whereof is extant in Salust too For to over-rule thy country or thy parents although thou art able and canst reform what is amiss yet is it uncivill especially seeing all changes in affairs of state portend slaughter flight and other hostilities Thomas saith The destruction though of a tyrannical Government is sometimes seditious The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side for the sacred Scripture plainly witnesseth He was raised by God himself and sent as an Avenger to wit by special command And besides it is not manifest that this King of Moab had not some right of Government conditionall Against other Kings also God executed his judgments by what hand he pleased as by Jehu upon Joram Lastly it is to be noted in a controverted case a private man by no means ought to take upon himself to judge but follow the possession So did Christ command tribute to be paid to Caesar because the Money bare his Image that is because he was in possession of the Empire LXXV Who may lawfully wage war AS in other things so in voluntary actions there are wont to be three kinds of efficient causes principal adjuvant and instrumental In war the principal is he whose work is done in private a private person in publick the publick power especially the highest Whether for those that stirr not themselves war may be raised by another we shall see elsewhere Mean while this we take for certain naturally every one may vindicate his own right Therefore were our hands given us But to profit another in what we can is not only lawfull but commendable The writers of Offices truly say Nothing is more serviceable to man than another man Now there are divers bonds between men which engage them to mutual aide For kinsmen assemble to bring help and neighbors are calld upon and fellow-citizens Aristotle said It behoveth every one either to take arms for himself if he hath received injury or for his kindred or for his benefactors or to help his fellows if they be wronged And Solon taught that the Commonwealths would be happy wherein every one would think anothers injuries to be his But suppose other obligations be wanting the communion of humane nature is sufficient No man is unconcerned in that which is humane It is a saying of Democritus Our duty is to defend the opprest with injury and not neglect them for that is just and good Which is thus explained by Lactantius God who hath not given wisedom to other living creatures hath secured them by natural muniments from assault and peril But to man because he formed him naked and frail that he might rather furnish him with wisedom he hath given beside other things this pious affection whereby one is inclined to defend love cherish another and afford mutual aid against all dangers When we speak of Instruments we do not here understand arms and such like things but those persons who act so by their own will that their will depends upon another will Such an instrument is the son to the father being naturally a part of him such also is a servant as it were a part legally Democritus Use servants as parts of the body some for one thing some for another Now as a servant is in the family so is a subject in the Commonwealth and therefore an instrument of the Ruler And no doubt all subjects naturally may be used for war but some are exempted by special Law as of
mere defence for the most part is considered but publick powers together with defense have also a right of revenging Whence it is that they may lawfully prevent force that is not present but seems impending afar off not directly that we have shewed above to be injust but indirectly by revenging a wrong begun already but not consummate Of which elswhere XIV It is not lawful to take arms to diminish a Neighbor's power THat is in no wise to be allowed which some have deliver'd that by the Law of Nations arms may be rightly taken to abate a growing power which being encreased might be able to do hurt I confess in consultation about war this is wont also to come in not under the respect of just but of profitable that if the war be just upon some other ground upon this it may be judged prudently undertaken Nor do the Authors cited here say any more But that a possibility of suffering force should give a right of offring force this is far from all equity So is the life of man that full security is never in our hand Against uncertain fears we must guard our selves by meditation of divine providence and by harmless caution not by doing violence to our neighbours XV. Defensive war also is unjust on his part who gave just cause of War AS little are we pleasd with this which they teach that also their defense is just who have deserved the war because forsooth few are content to return only so much revenge as they have received injury For that fear of an uncertain thing cannot give a right to use force whence neither hath a person accused of a crime any right to resist by force the publick officers willing to apprehend him for fear lest he may be punisht more than he deserves But he that hath offended another ought first to offer the offended party satisfaction according to the arbitration of an upright man and then afterward his arms will be lawfull So Ezechias when he had not kept the league which his Ancestors had made with the King of Assyria being set upon by a war confesseth the fault and submits himself to a mulct at the Kings pleasure Having done that and being after that again provoked by war encouraged by a good conscience he withstood the enemies force and his cause was supported by the favour of God Pontius Samnis after restitution made to the Romans and the Author of the breach yeelded up we have saith he expiated our fault and pacified the wrath of heaven that was against us for our violation of the league I know full well what Gods soever were pleasd we should be subdued to a necessity of restitution the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach A little after What more do I owe to thee O Roman What to the league what to the Gods the Judges of the league Whom shall I bring unto thee to be judge of thy anger and of my punishment I refuse to people nor private man So when the Thebans had offerd all right to the Lacedemonians and they required more the good cause passed over from these to them saith Aristides XVI The rise and progress of propriety THere follows among the Causes of war Injury done and first against that which is ours A thing is ours either by a common or by a proper right For the better understanding whereof we must know the Rise and beginning of propriety which the Lawyers call dominion God bestowed on mankind in general a right over the things of this inferiour nature presently after the creation and again upon the reparation of the world after the floud All things as Justin speaks were undivided common to all as if all had one patrimony Hence it was that presently every man might take unto his uses what he pleased and spend what might be spent Which use of the universal right was then instead of propriety For what any one had so taken another could not without injury take away from him This may be understood by that similitude which is in Cicero A theater is common yet the place possessed by any one may be rightly call'd his own Nor was it impossible for that state to have continued if either men had persisted in a certain great simplicity or had liv'd together in a certain mutual excellent charity One of these to wit Communion by reason of an exceeding simplicity may be observed in some people of America who through many Ages without any incommodity have persisted in that custome The other to wit communion of Charity the Essens practised of old and then the Christians who were first at Hierusalem and now also not a few that lead an ascetick life The simplicity wherein the first parents of mandkind were created was demonstrated by their nakedness There was in them rather an ignorance of vice than the knowledge of vertue as Trogus saith of the Scythians The most antient of mortals saith Tacitus lived without any evill lust without dishonesty and witkedness and so without punishment and coercion And in Macrobius First there was amongst men simplicity ignorant of evil and as yet void of craft This simplicity seemes to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the Hebrew wise man by the Apostle Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he opposeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to craftiness Their only busines was the worship of God whereof the Symbole was the tree of life as the antient Hebrews do expound and the Apocalyps assenteth And they lived easily of those things which the earth of her own accord brought forth without labour But in this simple and innocent way of life Men persisted not but applyed their minds to various arts whereof the Symbole was the tree of the knowledge of good and evill that is of those things which may be used both well and ill In regard of this Solomon saith God created man right that is simple but they have found out many inventions Dion Prusaeensis in his 6. Oration To the posterity of the first men their crafâ—…iness and various inventions were not very conducible for they used their wit not so much for valour and justice as for pleasure The most antient Arts Agriculture and Pasture appeared in the first Brothers not without some distribution of estates From the diversity of their courses arose emulation and then slaughter and at length when the good were infected by the conversation of the bad a gigantick kind of life that is violent such as theirs whom the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The world being washed by the floud in stead of that fierce life succeeded the desire of pleasure whereunto wine was subservient and thence arose unlawfull loves But concord was chiefly broken by that
the ends of the earth for his possession and that began to be paid which was promised in Hoseah They that were not my people shall be my people and the Nation that had not obtained mercy shall obtain mercy from that time Christ hath extended unto all the Law of fraternal benignity excluding none from our compassion no more than from his vocation Which words are to be understood with differenee of degree that we must be good to all but especially to the professors of the same Religion In Clement's Constitutions we read It is our duty to communicate of our goods to all yet so that we have a speciall eye to the poor Saints Familiar conversation also with aliens from Religion is not prohibited no not with them whose cause is worse and who fall away from the rule of Christian Disciplin is all commerce interdicted but familiar without necessity not also that which affords any hope for their amendment And that which is in Paul Be yee not unequally yoked together with unbelievers for what fellowship hath righteousness with unrighteousness and what communion hath light with darkness And what concord hath Christ with Belial or what part hath he that believeth with an Infidel pertains to those that feasted in the Idol-Temples and so either committed Idolatry or at least made a shew thereof This is manifest by the following words What agreement hath the Temple of God with Idols parallel to the words in the former Epistle to the same Ye cannot be partakers of the Table of the Lord and the table of the Devills Nor will the argument proceed rightly from this that of our own accord we are not to submit to the Government of the prophane nor contract mariage with them For in both these cases appears greater hazard or certainly greater difficulty to the use of true Religion Add that these bonds are more lasting and in matrimony there is a free choice when leagues are to be made according to the exigence of times and places And as it is no evill to do good to the prophane so neither is it unlawfull to implore their help as Paul invoked the aid of Caesar and the Chief Captain L. Cautions about such Leagues HEre then is no intrinsecal or universal pravity but to be esteemed by the circumstances For heed must be taken lest too much commixture bring contagion to the infirm to which end it will be profitable their seats should be distinct as the Israelits dwelt asunder from the Egyptians Hither pertains what we have elsewhere alleged concerning the Religion of Jews and Christians in their fellow-soldiership with the Pagans Again if by such society the prophane State be like to receive great encrease there will be no joyning with them except in point of extreme necessity Wherein hath place what Thucydides said in a like matter They that are treacherously assaulted as we are by the Athenians are not to be blamed if they seek for safety and secure themselves by the aid not of Greeks only but Barbarians For it is not every right that is sufficient for the doing of that which may be esteemed indirectly if not directly hurtfull to Religion Because in the first place we must seek the Kingdom of Heaven that is the propagation of the Gospel It were to be wisht that many Princes and people at this day would take into their consideration that free and pious speech of Fulco Archbishop once of Rhemes admonishing Charles the simple thus Who may not be afraid seeing you covet amity with the enemies of God and to the overthrow and ruine of the Christian name take unto you Pagan arms and enter into leagues detestable For there is little difference between associating with Pagans and worshipping of Idols God being deny'd In Arrianus is extant a saying of Alexander They are great Offendors who serve the Barbarians against the Greeks contrary to the Laws of Graecia LI. All Christians are oblig'd to joyn in League against the enemies of Christianism HEre is to be added sith all Christians are members of one body and are commanded to be sensible of one anothers pain as this pertains to single persons so doth it also concern Common-wealths as they are Commonwealths and Kings as they are Kings Nor ought every one in his own particular only but according to the power committed to him to do service unto Christ. Now Kings and Commonwealths are not able to do thus while an impious enemy overruns all with arms except they mutually aid and assist each other which cannot commodiously be effected without entring a League to that purpose Which League hath been long since entred and the Roman Emperour by common consent chosen Prince thereof Wherefore it is the duty of all Christians according to their power to contribute men or moneys to this common cause and I do not see how any can be excused for not doing so unless they be engaged at home and deteined by some inevitable war or other the like unhappy hindrances LII If divers Consederates wage â—…War which is to be aided THis question also is often incident If divers wage war to which of them he ought to give assistance who is consederate to Both. Here first we must remember that there is no obligation to unjust wars He then is to be preferr'd who hath a just cause of war if he hath to do with one without yea if with one within the league So Demosthenes shews the Athenians ought to assist their fellows the Messenians against their other fellows the Lacedaemonians if the injury begin from these But this is true so unless it were agreed that no aid should be sent against such a confederate In the agreement of Hannibal with the Macedonians it was an article We will be enemies to your enemies except the Kings and Cities and havens wherewith we have league and friendship Moreover if the confederates quarrel upon causes unjust on both sides which may happen neither part is to be taken So it is said in Aristides Did they crave aid against aliens 't were easy to answer but when one confederate opposes another they would not mix in the business But if confederates make war upon others each upon just ground if aids can be sent to both viz. men or money they are to be sent as it is done about personall creditors but if his presence who hath promised be requir'd seeing he cannot be present with both reason determines him to prefer that side where with his League is more antient which the Acarnans tell the Spartans in Pâ—…lybius and to the same effect is the answer of the Roman Consul to the Campanians It is meet our relations should so be orderd that no elder friendship and society be violated Yet is this exception to be added unless the yonger league have beyond the promise some thing that conteins in it as it were a translation of dominion
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
Cicero likewise and Quintilian The lighter evil obteins the place of good when several evils are compar'd together CXVI How the Judgment in drawn either way BUt for the most part in doubtfull matters after some examination the mind sticks not in the midst but is drawn this way or that by Arguments taken from the matter it self or from the opinion a man hath of other men pronouncing sentence about it For here also is true that of Hesiod It is most excellent to be able to direct oneself next to follow the good direction of another Arguments from the matter are deduced from the causes effects and other adjuncts But to the right discerning of these there is need of some experience and skill they that have not this to conform their active judgment rightly must hear the Counsils of wise men For those things saith Aristotle are probable which seem so to all or to most or at least to wise men and to these again either all or most or the more excellent And this way of judging is most used by Kings who have not leisure themselves to enter into the depth of learning The company of wise men brings Learning and Wisedom unto Kings Aristides saith As in questions of fact that is accounted for truth which is supported by most and most sufficient witnesses so those sentences are to be followed which are grounded upon most and most worthy authorities Thus the old Romans entred into war not without consulting the College of the Feciales instituted for that end nor the Christian Emperours scarce ever without advising with the Bishops that if any thing did hinder in point of Religion they might be admonisht of it CXVIII In doubtful cases the safer way is to be taken Three ways to avoid a doubtfull war NOw it may fall out in many Controversies that on either side probable arguments may shew themselves whether intrinsecal to the matter or from authority In this case if the matter be of smal moment the choice which way soever it be seemeth to be free from fault But if it be a weighty question as concerning the life and death of a man here because of the great difference between the things to be chosen the safer way is to be preferred Therefore it is better to acquit the guilty than condemn the innocent The writer of the problems that bear the name of Aristotle saith so and addes the reason which we have already given For where one doubts he must chuse that part wherein the offense is less War is a thing of the greatest consequence from which very many evils are wont to follow even upon the innocent wherefore when judgments differ we must incline to peace And three ways there be to keep Controversies from breaking forth into war The first is Conference Being there are two kinds of discipation saith Cicero one by conference the other by force and that is proper to man this to beasts we must fly to the later if we cannot use the former Phaneas in Livy saith To avoid a necessity of war men do willingly remit many things which cannot be forced from them by arms Mardonius in Herodot us blames the Grecians in this respect Who being of one language should have determined their Controversies by Commissioners and not by battell Coriolanus in Halicarnessensis If one desire not anothers but seek his own and upon denial make war all men confess it to be just In the same Halicarnessensis King Tullus Arms must decide what words are not able to compose Vologeses in Tacitus I had rather preserve my Ancestors possessions by equity than blood by a fair tryall than by force And King Theodoricus Then only is it profitable to go to war when Justice can find no place among our Adversaries Another way to avoid war among them that have no common Judge is Compromise It is not lawful saith Thucydides to invade him as injurious who is ready to submit to an Arbitrator So concerning the Kingdom of Argos Adrastus and Amphiaraus made Eriphyles their Judge as Diodorus relates Concerning Salamis three Lacedaemonians were chosen judges between the Athenians and Megareans In the now-cited Thucydides the Corcyreans signify to the Corinthians their readiness to debate their quarels before the cities of Peloponnesus which they should agree upon And Pericles is commended by Aristides for his willingness to have differences arbitrated that war might be avoided And Philip of Macedon is praised by Isocrates for that he was ready to permit the Controversies he had with the Athenians to the arbitration of any impartial City Plutarch saith this was the principal office of the Feciales among the Romans not to suffer things to come to a war till all hope of obteining a quiet end was lost Strabo of the Druids of Gallia They were of old arbitrators between enemies and often pacified them when they were entring into battell The Priests in Iberia performed the same office as the same Author testifies Now Christian Kings and Commonwealths are most of all bound to take this course to avoid war for if to avoid the sentences of Judges that were aliens from true Religion certain Arbitrators were constituted both by Jews and Christians and that is given in precept by Paul how much more is the same to be done that war which is a far greater incommodity may be avoided So Tertullian somewhere argues that a Christian must not follow the wars to whom it is not lawful so much as to go to Law Which yet must be understood according to what we have said elswhere with some temperament And both for this and for other causes it were profitable yea in some sort necesary to be done that some Assemblies of Christian powers were held where the controversies of others might be determined by Judges that are unconcerned yea and a course taken to compell the parties to entertain peace upon equal termes which use also was made of the Druids among the Galls as Diodorâ—… and Strabo have delivered And we read the French Kings about division of the Realm permitted the judgment to their peers The third way is by Lot which is to this purpose commended by Duâ—… Chrysostom in his second Oration against Fortune and long before him by Salomen Prov. 18. 18. Somewhat neer to Lot is Single Combat the use whereof seems not altogether to be refused if two whose Controversies otherwise would involve whole multitudes in very great mischiefs be ready to sight one with the other For it seems if not rightly to be done by them nevertheless acceptable to the people on both sides as a less evil Metiâ—… in Livy speaks to Tullus after this manner Let us take some way whereby without much slaughter and blood of boâ—…h parts it may be determined which people shal be superiour Strabo saith this was the old custom of the Grecians and Aeneas in Virgil saith
place where Subjects do truly offend or where the case is doubtfull For to this purpose was ordained that distribution of Empires Notwithstanding where the injury is manifest where any Busiris Phalaris Thracian Diomedes executeth such things upon his Subjects that no good man can allow of there the right of human society is not praecluded So Constantin against Maxentius and against Licinius other Roman Emperors against the Persians took arms or threatned to take them unless they would abstein from persecuting the Christians for their Religion Yea supposing arms cannot no not in extreme necessity be taken rightly by Subjects whereof we have seen those to doubt whose purpose was to defend the regal power nevertheless will it not therefore follow that arms may not be taken by others on their behalf For as oft as a personal not real impediment is put against any action so oft may that be lawfull for one for anothers good which was not lawfull for that other if the matter be of such a nature wherein one may procure the good of another So for a Pupil whose person is uncapable of judgment the Tutor goes to Law or some other for one absent even without a mandate his Defendor Now the Impediment which prohibites a subject to resist comes not from a cause which is the same in a subiect and no-subject but from the quality of his person which passeth not into others So Seneca thinks I may war upon him who being divided from my Countrey troubleth his own as we have said when we spake of exacting punishment which thing is often joined with defense of the innocent We are not ignorant by reading of histories old and new that Avarice and Ambition hideth it self under these pretences but it doth noth not therefore presently cease to be a Right which is abused by evil men Pirates also go to Sea and Robbers use the sword CXXXIII Concerning Soldiers of Fortune MOreover as warly Societies enterd into with such a mind that aids are promised in every war without any difference of the cause are unlawfull so is no kind of life more wicked than theirs who without respect unto the cause are hired to kill men thinking There is most right where is most pay Which Plato proves out of Tyrtaeus This is that which the Aetolians were upbraided with by Philip and the Arcadians by Dionysius Milesius in these words Mercats are made of War and the calamities of Greece are a gainto the Arcadians and without regard of the causes arms are carried to and fro A miserable thing indeed as Antiphanes speaks That men should get their living by exposing themselves to death What is more necessary to us saith Dion Prusaeensis or what is more worth than life and yet many men are prodigal of this while they are greedy of money But this is a small matter to sell their own blood unless they did also sell the blood of other men that are oft-times innocent So much worse than the Hangman by how much worse 't is to kill without cause than with cause As Antisthenes said Hangmen are better than Tyrants because they execute the guilty these the guiltless Philip of Macedon the Elder said These men that get their living by making a trade of war esteem war to be their Peace and Peace their war War is not to be turned into an Art or profession being a thing so horrid that nothing can make it honest but the highest necessity or true charity as may be understood by what we have said afore It is not indeed in it self a sin saith S. Augustin to go to war but to go to war for the spoil is a sin Yea and for the stipend or pay if that alone be regarded or that chiefly when as otherwise it is very lawfull to receive pay for who goeth to war at his 〈◊〉 charge saith S. Paul the Apostle CXXXIV Of just Causes that wit may be waged by those that are under others command Who they are and what they should do where they are left free WE have done with them that are is their own power there are others in a condition of obeying as sons of families servants subjects and single Citizens if they be compar'd with the Body of their Commonwealth And these iâ—… they be called to debate or a free choice be given them to go to the war or to stay at home ought to follow the same rule with them that at their own pleasure undertake wars for themselves or others CXXXV What they should do when they are commanded to war and believe the cause of the war to be unjust BUt if it be commanded them to bear arms as it usually comes to pass What then Why truly if it be manifest to them that the cause of the war is unjust they ought by all means to abstein That we must obey God rather than men is not only a sentence of the Apostles but of Socrates too and the Hebrew-Masters have a saying That the King must not be obeyed when he commands any thing contrary to the Law of God Polycarpus said just before his death We have learned to give meet honour to the Empires and powers ordained of God so far as may consist with our salvation And S. Paul the Apostle Children be obedient to your Parents in the Lord for this is right Upon which place Hierom It is a sin for children not to obey their parents yet because parents might perhaps command somewhat amiss he added In the Lord. And he annexed this of servants When the Lord of the flesh â—…neth a thing divers from the Lord of the Spirit Obedience is not due And elswhere In those things only ought men to be subject to their Masters and Parents which are not against the Commands of God For the same Apostle also saith Every man shall receive a reward of his own worke whether he be bond or free Seneca Neither can we command all things nor 〈◊〉 servants perform They must not obey â—…s against the Commonwealth They must not lend their hand to any wickedness Sopater Obey thy Father If according to right well if otherwise not so Stratâ—…cles was irrided of old who propounded a Law at Athens that whatsoever pleased King Demetrius might be accounted pious toward God and just toward 〈◊〉 Pliny saith he laboured somewhere to make it evident That it is a crime to serve another in doing evil The Civil Law themselves which do easily give pardon to excusable faults favour those that must needs obey but not in all things for they except things which have atrocity which are heinous and wicked in their own nature as Tully speaks and not by the interpretation of Lawyers Josephus relates out of Hecataeus that the Jews which served under Alexander the Great could not be compell'd either by words nor blows to carry earth with the other soldiers to the repairing of
Belus's Temple â—…t Babylon But we have a more proper example in the Thebaean Legion of which â—…bove and in Julian's soldiers of whom Ambrose thus Julian the Emperour though an Apostate had under him Christian soldiers whom when he Commanded â—…o Draw out in defense of the Common-wealth they obeyed him But when he said Use your arms against the Christians then did they acknowledge the Emperour of Heaven So we read of certain Spearmen converted unto Christ that they chose rather to dy than to execute the Edicts judgments against the Christians 'T will be all one if a man be perswaded it is unjust which is commanded For that thing is to him unlawfull so long as he cannot put off that opinion as appeares by what we have said already CXXXVI What they should do when they are in doubt BUt if a man doubt whether the thing be lawfull or no must he then obey or not Most Authors are of opinion that he must obey nor doth that hinder Dâ—… not what you doubt of because say they he that doubts contemplatively may in his active judgment be out of doubt For he may believe that in a doubtfull matter he ought to obey his superiour And truly it cannot be denyed but this dissection of a twofold judgment hath place in many actions The Civil Laws not of the Romans only but of other Nations iâ—… such a circumstance do not only graâ—… Impurity to those that obey but also deny any Civil action against them He doth the damage say they who commands it to be done and he who must needs obey is in no fault Necessity of the power excuseth the like Aristotle himself in the fist his Ethicks among those that do something unjust but not unjustly annumerates the servant of a Master commanding and he saith He doth unjustly from whom the action takes beginning upon this ground because the faculty deliberative is not full according to that verse Those men enjoy but one half of their soul Whom their imp r ous Masters words controul And that of Tacitus The Gods have given the Prince supreme judgment of things to sub ects is left the glory of obedience Piso's son in the same writer was by Tiberius absolv'd from the crime of the Civil war Because the son was not able to reject the commands of the Father Seneca A servant is not a Censurer but a minister of his Masters will And specially in this question of warfare Augastin thought so for so he speaketh A just man if perhaps he serveth under a secrilegious King may rightly fight at his command if keeping civil order he be either sure what is commanded him is not against the Command of God or be 〈◊〉 sure that it is so that perhaps the King may be guilty of iniquity in his command but the soldier innocent in his obedient The like he saith in other places And hence it is a common received opinion that as to subjects a war may be on both sides just that is without injustice Yet this is not without its difficulty And our Countryman Adrian who waste last Bishop of Rome of the Cisalpins defends the contrary opinion which may be confirmed not by that reason precisely that he brings but by this which is 〈◊〉 urgent Because he that doubts contemplatively ought by his active judgmenta chuse the safer part And it is the 〈◊〉 part to abstein from war The Essens 〈◊〉 commended for swearing among other things That they would never do any erâ—… harm no not if they were commanded And their Imitators the Pythagoreans who as Jamblicus testifies absteined from war adding this for the reason because is so bloody Nor is it any material objection that on the other side there is dâ—… ger of inobedience For when Both are uncertain for if the war is unjust then in avoiding thereof is no inobedience that is faultless which of the two is less Now inobedience in such matters is of its own nature less evill than homicide and slaughter especially of many Innocents The Antients tell how Mercury being accus'd for killing Argus at the command of Jupiter defended himself and yet the Gods durst not absolve him Nor is it of great weight which some bring on the contrary That it will come to pass if that be admitted that the Commonwealth will be oft undone because it is not expedient for the most part the reasons of Counsel's should be published and made known to the people For grant this to be tâ—…ue concerning the suasory causes of war it is not true of the justifick which must be clear and evident and therefore such as may and ought to be openly declared And thus do some learned men interthat in Genesis 14. 14. to this sense that Abrahams servants before the battell were fully instructed by him concerning the Justice of his arms Certainly denuntiations as we shall shew hereafter were wont to be made openly and the cause exprest that all mankind as iâ—… were might examin and know the justice of it Prudence indeed is a vertue as it seemed to Aristotle proper to Governors but Justice to man as he is man Now in my judgment that opinion of Adrian is clearly to be followed if the subject not only be in doubt but is induc'd by probable Arguments and inclined rather to believe that the war is unjust especially if it be not defensive but offensive And so it is probable that the Executioner of a man condemned either by his presence at the Tryall or by the confession of the party ought so far to understand the case that he may be afraid he hath deserved death which in 〈◊〉 paces is the custome and the Hebrew Law looks this way when in the stâ—…ning of one condemned it requires the witnesses to go before the people CXXXVII Such are to be dispensed with upon payment of extraordinary Tribute MOreover if the mindes of the Subjects cannot be satisfyed by Declaration of the cause it will certainly be the office of a good Magistrat rather to impose upon them double Contribution than military service especially when there are not wanting enow Voluntiers to serve Whose will not only good but evil too a just King may use as God doth use the ready service of the Devil and wicked men and as he is without fault who being in need of money takes it up at hard rates from an oppressing Usurer Yea further if there can be no doubt made about the Cause of the war nevertheless it seemeth to be much against equity that Christians against their wills should be compell'd and prest Souldiers seeing to abstein from war even when it is lawfull to wage it is a point of greater sanctity which was exacted both of Clergy-men and Penitents and to all other persons many wayes commended Origen to Celsus objecting against the Christians that they declined war
that Good may come of it or of such as are not evil universally and in their own nature but may haply and in some cases be good VI. Guile in the negative act is not unlawfull IT is therefore to be noted that Guile either consists in a negative act or in a positive I extend the word to those things that consist in a negative act upon the authority of Labeo who refers it to Guile but not evil when one doth defend his own or another man 's by dissimulation Doubtless it was too crudely spoken by Cicero Our whole Conversation ought to be free from simulation and dissimulation altogether For when as you are not bound to discover unto others all things that you know or intend it follows that â—…o dissemble certain things before certain persons that is to hide and conceal them is very lawful It is lawful saith S. Austin to cast the veil of dissimulation sometimes over the face of Truth And Cicero himself in more places than one confesseth it to be necessary and inevitable especially to men of place in the Commonwealth A notable example to this purpose we have in the history á Jeremy ch 38. For that Prophet being questiond by the King about the event of the Siedge upon the Kings request prudently conceals the same before the Princes alleging another cause of thee Conference and that a true one too Hither also may be referrd that Abraham calls Sara his Sister that is according to the manner of speech used then his 〈◊〉 kinswoman not revealing his marriage VII Guile in the Positive act when lawfull GUile which consists in a positive act if in things is called Simulation if in words a ly Some do thus distinguish between these two saying Woâ—… are naturally signes of the mind things not so But on the contrary 't is true thaâ—… Words by nature it self and without thâ—… will of men do signify nothing unleâ—… perhaps it be a confused voice and inaâ—…culate as in grief which yet comes â—…ther under the appellation of a thing thâ—… of a word or speech Now if this be 〈◊〉 that this is the peculiar nature of man above other creatures that he can express unto others the conceptions of his mind and that words were found out to that end they do indeed say what 's true but 't is to be added that such an expression is not made by words alone but also by nods and signes as to mutes whether those nods have by nature some what common with the thing signifyed or els do signify only by institution To which are like those Notes which do signify not words figured by the tongue as Paul the Lawyer speaks but things themselves either by some convenience and agreement with them as hieroglyphicks or by meer will as among the people of China Wherefore another distinction must be here given such as is used to take away the ambiguity in the Word Law of Nations For this law is either that which hath pleased every nation without mutual tye or that which doth mutually oblige Thus Words and nods and notes which we have said were found out to signify with mutual obligation other things not so Hence it comes to pass that it is lawful to use other things though we foresee that Another may thereupon conceive a false opinion I speak of that which is intrinsecal not of that which is accidental Therefore an Example is to be puâ—… where no nocument follows thence or where the nocument it self the consideration of the guile set aside is lawful An example of the former is in Christ who to his companions going to Emmaâ—… made as though he would have gone farther unless we had rather understand he had really an intent to go farther Except they constrained him to stay as God aâ—… is said to will many things which are not done and elswhere Christ himself is said to have been willing to pass by the Apostles rowing to wit except he were eâ—…nestly entreated to come up into the 〈◊〉 Another example may be given in Paul who circumcised Timothy when he 〈◊〉 knew the Jews would take it so as if the precept of Circumcision which was indeed abolished did still oblige the Isrealites and as if Paul and Timothy were 〈◊〉 that opinion when yet Paul meant not this but only to procure unto himself and Timothy a more familiar way of Conversation with the Jews Nor did Circumcision any more the Law Divine takes away purposely signify such necessity nor was the consequent Evill of the present errour after to be corrected of 〈◊〉 great value as that good which Paul haâ—… his eye upon namely the insinuation of Evangelical Truth This simulation thâ—… Greek Fathers often call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is extant an excellent sentencâ—… of Clemens Alexandrinus speaking of a good man thus For the good of his Neighbour he will do some things which otherwise of his own accord and by a primary intention he would not do Of this sort is that in the war of the Romans who threw loaves from the Capitol into the guards of the enemies to possess them with a belief that they were not streitned with hunger An example of the later is in a feigned flight such as Joshua gave in command to his men that they might conquer Ai and other Captains often For here the nocument that follows we prove to be lawfull from the justice of war and the flight it self by appointment signifies nothing although the enemy take it as a sign of fear which mistake the other is not bound to acquit him of using his liberty to go hither or thither and with more or less speed and in this or that posture or habit Hither also is to be referred their act who are frequently read to have used the arms ensigns apparel sails of their enemies For all these things are of that kind that they may be used of any at his pleasure even contrary to custom because the custom it self is introduced at pleasure of every one not as by common consent and such a custome obligeth no man VIII Whether Guile by acts signifying by agreement be lawful The difficulty of the question IT is a harder question concerning those notes which as I may say are coversunt in the commerce of men of which sort properly is a ly For there are many places in Scripture against lying A righteous i. e. a good man hateth lying Remove far from me vanitie and lies Thou shalt destroy them that speak lyes Ly not one to another And this part is rigidly maintaind by Augustin and there are among the Philosophers and Poets that have the same opinion That of Homer is famous Whose mind thinks one thing and his Tongue doth tell Another I hate like the pit of Hell Aristotle said A ly is of it self soul and vituperable
deceits to the Carthaginians and Greeks who accounted it more glorious to ensnare the enemy than to beat him And then they added At present perhaps Deceit may be more profitable than valour but a perpetual victory is obteined over his mind who is forc'd to a confession that he is overcome neither by art nor chance but by plain battell in a just and pious war And in after-times we read in Tacitus That the Romans were wont to revenge themselves of their enemies not by fraud not secretly but openly and in arms Such also were the Tibarens who did agree with the enemy about the place and time of battell And Mardonius in Herodotus saith the same of the Grecians in his time XV. It is not lawful to make a traitor it is to use him LAstly to the manner of acting this is pertinent Whatsoever is not lawful for any one to do to impell or solâ—…cite him to do it is not lawful neither For example It is not lawfull for a subject to kill his King nor to yield up Towns without publick Counsell nor to spoil the Citizens To these things therefore it is not lawfull to tempt a subject that remaineth such For always he that gives cause of sinning to another sins also himself Nor may any reply that to Him who impelleth such a man to a wicked act that act namely the killing of his enemy is lawfull He may indeed lawfully do it but not in that manneer Augustin well It is all one whether your self commit a sin or set another to do it for you It is another thing if to effect a matter lawful for him one use the offerd service of a man sinning without any other impulse but his own That this is not unjust we have proved elswhere by the example of God himself We receive a fugitive by the Law of War saith Celsus that is It is not against the Law of War to admit him who having deserted the enemies part electeth ours XVI Goods of Subjects bound for the Rulers debt Naturally none is bound by anothers deed but the Heir LEt us come to those things which descend from the Law of Nations They belong partly to every war partly to a certain kind of war Let us begin with generals By the meer Law of nature no man is bound by anothers act but the successor of his goods for that Goods should pass with their burthens was introduced together with the dominion of things The Emperor Zeno saith It is contrary to natural equity that any should be molested for other mens debts Hence the Titles in the Roman Law That neither the wife be sued for the Husband nor the husband for the Wife nor the Son for the Father nor the Father or Mother for the Son Nor do particular men owe that which the Community owes as Ulpian hath it plainly to wit if the Community hath any Goods for otherwise particulars are bound as they are a part of the whole Seneca If one lend my Country mony I will not call my self his debtor yet will I pay my share He had said afore Being one of the people I will 〈◊〉 pay as for my self but contribute as for 〈◊〉 Country And Every one will owe not 〈◊〉 a proper debt but as a part of the publick Hence it was specially constituted by the Roman Law that none of the Villagers should be tyed for the other debts of Villagers and elswhere no possession of any man is charged with the debts of others no not with the publick debts and in the Novell of Justinian Pignorations for others are prohibited the cause being added that it is against reason for one to be charged with anothers debt where also such exactions are called odions And King Theodoricus in Cassiodore calls this Pignoration of one for another a wicked licence XVII By the Law of Nations Subjects are tied for the debts of the Ruler ALthough these things be true yet by the voluntary Law of Nations it might by induced and it appears to have been induced that for that which any Civil Society or the head thereof ought to make good either by it self primarily or because in anothers debt it hath also made it self lyable by not doing right for that I say are tyed and bound all corporal and incorporal Goods of them that are subject to the same society or head And it was a certain necessity that effected this because without this great licence would be given to the doing of injuries seeing the Goods of Rulers oftentimes cannot so easily come to hand as of private men who are more This then is among those Laws which Justinian saith were constituted by the Nations upon the urgency of human needs Howbeit this is not so repugnant to nature that it could not be induced by custome and tacit consent when even without any cause sureties are bound by consent alone And there was hope that the members of the same society might more easily obtain mutual right and provide for their own indemnity than foreiners who in many places are very little regarded Besides the benefit of this obligation was common to all Nations so that they which were one time grieved with it another time might be eased by the same Moreover that this custome was received appears not only out of full wars which Nations wage against Nations for in these what is observed may be seen in the forms of denuntiation and in the proposal and the decree it self but also where matters are not come to that fulness of war yet there is need of a certain violent execution of right that is imperfect war we see the same to be used Agesilaus of old said to Pharâ—…bazus a subject of the King of Persia We O Pharnabazus when we were the Kings friends carried our selves like friends towards all his and now being become his enemies we carry our selves like enemies Wherefore seeing you will be out of the things that are His we do justly oppose him in you XVII An example hereof in the Apprehension of men and of goods ONe species of that execution which I speak of was that which the Athenians called Apprehension of men of which the Attick Law thus If one have force offerd him and dy his Kinsman and friends may apprehend men till either the Man-slayers be duly punisht or yielded but it is lawful to apprehend only three men and no more Here we see for the debt of the City which is bound to punish her subjects that have hurt others â—…s tyed a certain incorporal right of the subjects that is the liberty of staying where they please and doing what they will so that they may be in servitude until the City do what she is bound to do that is punish the Guilty For though the Epygtians as we learn out of Diodorus Siculus argued that the body or liberty ought not to be
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
for the glory of Empire are to be waged with less bitterness That hath place often which is in Cicero concerning the war of Caesar and Pompey It was a dark War a Contention 'twixt most famous leaders many doubted what was best And what he saith elswhere Though we were in some fault of human error yet certainly we are free from wickedness Just as in Thucydides things are said worthy of pardon which are done not out of malice but rather by mistake What Brutus wrote of Civil I think may be well referd to most wars They are more sharply to be forbidden than prosecuted And where Justice doth not exact this yet 't is agreeable to Goodness agreeable to Modesty agreeable to Magnanimity By pardoning was increased the Greatness of the Roman People saith Sallust Tacitus No less Gentleness is to be used toward suppliants than stifness toward an enemy It is a memorable passage in the fourth Book to Herennius Well did our Ancesters observe this to deprive no King of life whom they had taken in War Why so Because it was not meet to use the power fortune had given in the punishment of them whom the same fortune so lately had placed in the higest dignity But did he not lead an Army against us I will not remember that Why so Because it is the part of a valiant man to take them for enemies that contend for victory and to look upon the conquered as men that valour may diminish the danger of War and Courtesy may encrease the honour of Peace But would he have done so had he overcom Why then do you spare him Because I use to contemn such folly not to imitate it Perseus Syphax Gentius Juba and in the time of the Cesars Caractacus and others escaped capital Punishment so that it may appear both the causes of war and the manner of waging it were considerd by the Romans whom yet Cicero and others do confess to have been somewhat too sharp in the use of Victory VVherefore M. Aemilius Paulus in Diodorus Siculus not amiss admonisheth the Roman Senators in the Cause of Perseus If they feared nothing human yet they should fear divine revenge imminent over them that use their victory with too much pride and insolence And Plutarch notes in the wars among the Greeks the very enemies held their hands from the Lacedemonian Kings in reverence of their dignity An enemy therefore that will regard not that which human Laws permit but that which is his duty that which is good and pious will spare even an Enemies blood and will put none to death but to avoid death himself or somewhat like death or els for sins proper to the person which amount to capital offences And yet to some that deserve death he will forgive either all punishment or that of death either for humanity sake or for other probable causes Excellently saith the now-cited Diodorus Siculus Expugnations of Cities prosperous fights and whatsoever is in War successfull more often proceed from fortune than from valour but in the highest power to bestow mercy upon the Conquered is the work of Providence alone Now concerning the slaughter of them who are killed by chance not on purpose we must remember it is a part of mercy if not of Justice not without great causes and such as conduce to the safety of many to enterprize ◅uch a thing whence destruction may come upon the innocent Polybius is of this mind saying It is the part of good men not to wage a destructive War no not with the bad but so far that offences may be repaird and amended not to involve the innocent with the guilty in the same ruine but for the innocent to spare the guilty also XLV Children Women old Men Priests Scholars husbandmen are to be spared UPon those premises 't wil not be hard to determine of the specials that follow Let age excuse a child sex a woman saith Seneca in the Books where he is angry with Anger God himself in the wars of the Hebrews even after peace offerd and refus'd will have women and infants spared besides a few Nations excepted by special command against which the war that was was not of men but of God and so 't was called And when he ordered the Madianitish womē to be slain for a proper crime of theirs he excepted Virgins that were untoucht Yea when he had very severely threatned the Ninivites with destruction for their most heinous sins he suffered himself to be restreined by compassion upon many thousands of that age that knew not good from evil Like whereunto is that sentence of Seneca Is any one angry with children whose age doth not yet discern the differences of things If God hath done and determined thus who may without injustice slay any men of what sex or age soever without any cause being the giver and Lord of life what is fitting for men to do to whom he hath given no right over men but what was necessary to human safety and the conservation of society Add here concerning children the judgment of those Nations and times wherein equity most prevailed We have Arms saith Camillus in Livy not against that age which even in taking of Cities is spared but against armed men And this is among the Laws of War he means the Natural Laws Plutarch speaking of the same thing There are saith he among good men certain Laws of War too VVhere note that among good men that you may descriminate this Law from that which is customary and consisteth in impunity So Florus saith It could not otherwise be without violation of integrity In another place of Livy An age from which Soldiers in their anger would abstein And elsewhere Their cruel wrath went on even to the slaughtering of infants Now that which hath place in children always that have not attained the use of reason for the most part prevails in women that is unless they have committed something peculiarly to be avenged or do usurp manly Offices For it is a sex as Statius speaks that hath nothing to do with the sword Alexander in Curtius I am not used to wage war with Captives and Women he must be armed to whom I am an enemy Grypus in Justin None of his Ancestors among so many domestick and external wars did ever after victory shew cruelty to women whom the softness of their sex exempteth from perils of War and the rough handling of the Conquerors Another in Tacitus He carried arms against armed men not against women Valerius Maximus calls it barbarous and intolerable cruelty which Munatius Flaccus shewed to Infants and Women Latinus Pacatus saith Women are a sex which wars do spare Papinius hath the same of old men They are a company violable by no arms The same is to be determined universally of males whose course of life abhorres from war By the Law of War
excerptis legationum Non ante ad res veniendum est quam tentata sit verborum via Menelaus apud Libanium Homini convenientius prius verborum experimentum saccre quà m statim ad arma prosilive †Donatus ad Eunuchum Pervulgatum est enim quod summa â—…i defenderis quum extorquetur hoc idem postmodum remitti remittentis Cass. 3. Var. 17. Orat. advers Ctesiphont Victor de jure bell num 28. †Gregor as lib. 10. de Alex. Bulgaro It is uncomely for Christians to make such bitter wars against one another when they may find a way of peace and turn their arms against the Infidels Molin disput 103. sect quando inter * Vide exemplum apud Cassiodorum 3. 1 2 3 4. Gailium de pace pnb. 2. c. 18. n. 12. †To the Druids in this respect and with better right have succeeded Bishops See the epistle of the Bishops to King Lewis In capitulis Caroli Calvi vide Roderic Tolet 7. 3. * Vide August de doct Christ. lib. 1. c. 28. †Scriptor Tragoediae Thebaidâ—…s Rex sit è vâ—…bis uter Manenâ—…e regno quae ite Dion Othone Molto enim satius justi isque est unum pro omnibus quam multos â—…us causa perire †Libro 5. * Ae 1. 11. Aequius huic Turno fuerat se opponere morti Upon like cause Antonâ—… challenged Octavius to a Duell Plutarch Antonia * Vide Certâ—… Calvi Capitulum apud S. Arnulphum pactionem Aquisgrantâ—… Ae 〈◊〉 as eadâ—…m apud Langobaidus vid. Paul Warnasred l. 1. c. 1â—… 4 c. 17. 5. c. 40. * Vide Herreram tom 2. †Sic Gratianus causa 11. a. 3. post C. Episc. distinguit justitiam causae ordinis animi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Eth. c. 10. 11. Rhet. 1. 13. August lib. 15. de C. D. c. 5. Covarr c. 3. Rhetor. c. 17. Lib. 2. 8. Top. 1. 13. Nic. 5. 12. Victor de ju bel n. 14. 33. Rom. 5. 6. Arist. Polit. 4. Rhet. ad Alex. cap. 3. Pausan. lib. 5. †Senec. Suasor 5. Gallio said war is to be undertaken for liberty for cur wives for our children but for things that may be spared and of small damage it is not to be undertaken Apollonius said somewhat more to the King of Babylon in Philostrat lib. 23. You ought not dispute with the Râ—…mans about Villages which are less than private mens possessions nor make war no not for great causes Josephus in his 2. against Appian saith of his Countrymen That they shew not their valaur to get riches but to preserve their Laws Other losses they bear patiently but when they are forced to depart from their Laws then they fight even beyond their strength and endure all extremities of war * De clementia 1. c. 14. Augustus said to a certain Father consulting what he should do to his son guilty of paricâ—…de He must be sent away whither his father would He decreed not prison or torment mindful of him to whom he gave advise and saying that a Father should be content with the sofâ—…est kind of punishment Seneca eod lib. c. 15. Terene Andria Pro peccato magno paululum supplicii satis est patri Phâ—…lo Patres abdicationis tristia verba pronunciant siliosque à domo sua 〈◊〉 omni cognatione abrumpunt ita demum ubi amorem illum quem iâ—…gentem ac supra omnia eximium natura parentibus indidit filiâ—… improbitas vicit Cicero pro Ligario Ignoscite Judices erraâ—… Lapsus est non putavit si unquam postbac ad parentem sic agiâ—… †Seneca epist. 87. Clementia alieno sanguini tanquam suo parcit 〈◊〉 scit homini non esse homine prodigè utendum Diodorus Siculus in fragmentis Non omnes omnino qui deliquere puniendi sunt sedii quos malesectorum nihil poenitet Chrysost. de statuis 6. Discant omnes qui à fide nostra sunt extranei reverentiam quae Christo exhibetur tantam esse ut cuilibet potestati injiciat fiaenos Honora Dominum tuum condona peccata conservis tuis ut ipse multo magis te honoret ut in â—…llo judicii die vultum tibi ostendat serenum atque clementem hujus tuae â—…enitatis memor Citat Gratianus caus 23. qu. 4. ex Augustino Duo ista nomina cum dicimus homo peccator non utique frustra dicuntur quia peccator est corripe quia homo miserere Vide quae sequuntur * Ambr. Offic. l. 2. c. 2. vide Molin tr 2. de Just. disp 103. Lorca dis 153. n. 11. †Theodosius was moved to pardon the crime of the Antiochians by those words of Christ pressâ—…d by the Bishop 〈◊〉 anus Father Forgive them for they know not what they do Chrysost 10. de staâ—…s * Jos. antiq hist. 2. 3. * Sen. de Clem. lib. 1. c. 20. †Chrysostom saith Clemency is an ornament to all men most of all to a Ruler For to rule himself and obey the Divine Law is most honourable to the highest Governour In laude Clementiae * Apud Vulcatium Gallicanum vita Avidii Cassidii August in epist. 104. ad Bonifac. Comitem Remember to give a speedy pardon if one hath trespassed against thee and cryeth mercy De Offic. 1. Nihil magno praeclaro viro dignius placabilitate Clementia †Procopius Vandat 2. The Offenders timely Repentance is wont to prevail with the offended party and obtain his pardon †Procopius in his second book of the Gotthâ—…cs saith the Goths spoke thus to Belisarius It concerns the Commanders of both Nations not to purchase their own glory at so great a price as the undoing of their people but to prefer and chuse things just and sase as well for themselves as for their enemies Diodotus in Thucydides saith Although they are very guilty yet would I not have them slain except it be expedient for us lib. 3. * Vide Plutarch Camill. So did the King of Armenâ—…a in the time of Severus Herodian l. 3. * Vide Procop. Vandal 2. Gotthic 1. Liv. lib. 6. Lib. 7. †De Marte quoties itur in suffragia Nemo imminere cogitat mortem sibi Sed quisque cladem destinamus alteri Quod si in Comitiis funera ante oculos forent Furiata bello non perisset Graecia †Of their own danger most men are Unmindfull when they vote for war They think not death hangs o'r their head But wish that other men were dead The undone Grecians had not been So mad if this they had fore-seen Arist. de animal mot * Narses in Procopius makes a prudent use of this rule Gotthic 2. De Offic. 2. Epist. ad Att. l. 13. 27. Tarsensi alterâ Siculâ 2. Lib. 9. epist. ad Attic. epist. 112. Quam not sit ardua virtus Servitium fugisse manu 2. Paral. 12. 78. Jer. 27. 13. Aug. de Civit Dei l. 22. c. 6. Lib. 18. †Guâ—…do Blandratensis
Optimacy mixt with a Democracy LV. Whether He can have supreme power that is comprehended in an unequal league UPon these premises let us examin some questions which are of frequent use in the argument we have in hand The first is whether He may have supreme power who is comprehended in an unequal league By an unequal League I understand here not that which is made between parties unequal in their forces as the Theban City in the time of Pelopidas had a league with the King of Persians and the Romans of old with the Massilians and afterward with King Massanissa nor that which hath a transient act as when an enemy is receiv'd to friendship on condition he pay the cost of the war or perform somewhat else but that which in the very nature of the agreement gives a certain permanent prelation to one side that is when the one is bound to conserve the Empire and Majesty of the other as it was in the league of the Etolians with the Romans that is both to endeavour that the others Empire may be in safety and that his dignity which is signified by the name of Majesty may be inviolat Unto which kinde are to be referr certain Rights of them which are now calld Rights of Protection Advocacy Mundiburg also the Right of mother-cities amongst the Grecians over their Colonies For the Colonies wereas free saith Thucydides as the mother-Cities but they ought to exhibit reverence to their Metropolu and certain signes of honour Livy saith of the old league between the Romans who had received all the right of Alba and the Latins of the Alban race In that league the Roman state was superiour Rightly speaks Andronicus Rhodius after Aristotle It is the property of friendship 'twixt unequals that the stronger have more honour and the weaker have more help We know what Proculus answerd to this question to wit that the people is free which is sub ect to the power of no other though it be contained in the league that that people should fairly conserve the Majesty of the other people If then a people bound in such a league remain free if they be not subject to anothers power it followes that they retain the highest power And the same is to be said of a King For there is the same reason of a free people and of a King who is truly so Proculus addes such a clause is in the league to signify the one people is superiour not that the other is not free Superiour here is meant not in power for before he had said the one people is subject to the others power but in authority and dignity which the following words do express by a fit similitude As we understand our Clients to be free though they be not equal to us neither in authority nor in dignity nor in every right So also are they to be conceived free whose duty it is to have a fair respect to the conservation of our Majesty Clients are under the trust of their patrons so are a people inferiour in the league under the trust of that people which in dignity is superiour They are under patronage not under rule as Sylla speaks in Appian Livy saith in parte non in ditione and Cicero describing those more honest times of the Romans tells us they had patrocinium sociorum non imperium With whom agrees well that saying of Scipio Africanus the elder The people of Rome had rather oblige men by favour than fear and unite forein Nations to them by a faithfull association than subdue them to a grievous servitude and that which Strabo relates of the Lacedemonians after the Romans came into Greece They remained free conferring nothing beside a friendly aide As private patronage taketh not away personal liberty so publique patronage taketh not away Civil liberty which without supremacy of power cannot be understood Therefore we see these are opposed in Livy To be under protection and To be under command And Augustus in Josephus threatens the Arabian King Syllaeus unless he would cease from doing his neighbours wrong He would take order that of a friend he should be made a subject of which quality were the Kings of Armenia who as Pâ—…tus wrote to Vologeses were within the Roman dominion and therefore were Kings rather in the sound of the name than really such as were the Cyprian and other Kings of old under the Kings of Persia Subjects as Diodorus saith LVI An Objection Answered PRoculus addeth somewhat which seemeth opposite to that we have said There are accused before us some of the confederat Cities after sentence of condemnation we inflict upon them punishment But for the understanding hereof we must know that four kindes of Controversies may happen First if the subjects of a people or King that is under the protection of another be said to have done against the league Secondly if the people or the King himself be accused Thirdly if the Fellowes which are under protection of the same people or King contend with one another Fourthly if the subjects complain of the injuries of their own Rulers In the first kinde if a fault appear the King or people is bound either to punish the offendor or to give him up to the party injured which holds not only 'twixt unequals but between those that are equally confederat yea and among them that are not at all confederate as we shall shew elswhere He is also bound to endeavour that dammages may be repaired which at Rome was the Office of the Recuperators But one of the Associats in the league hath no direct right to apprehend or punish the subjects of his confederate Wherefore Decius Magius a Campanian being put in bands by Annibal and carried to Cyrene and thence to Alexandria shewed that he was bound by Annibal against the league and so was freed In the second way the confederate hath a right to compell his Confederate to stand to the Articles of the league and if he will not to punish him But this also is not peculiar to the unequall league it hath place too in that which is equall For that one may take revenge of him that hath offended 't is sufficient that he be not subject to the offender of which elswhere wherefore the same thing comes to pass between Kings or people not confederate In the third kinde as in an equal league controversies are wont to be brought before an Assembly of the Confederates to wit such as are not concerned in the question as we read the Grecians the ancient Latins and the Germans of old have done or else before Arbitrators or before the Prince of the Association as a common Arbitrarot So in a league unequal it is agreed for the most part that the controversies be debated before him who is superiour in the league This therefore doth not prove any power of command for Kings also do usually try