in Histories many examples †Meierum in anno 1339. de Flandr Brab ◠XV. An Usurper how far to be obeyed The Acts of an Usurper binding and why We have hitherto treated of him who hath or had a Right to Govern now something we must say of him that Invades or Usurps the Government not after he hath either by long possession or by Consent or Agreement obtained a Right unto it but so long as the cause of his unjust acquisition continues And certainly during the time that he possesseth the Empire his Acts may have power to bind But yet not as they are his for Right to command he hath none but upon this presumption That he who of Right should govern whether King People or Senate had rather that his Laws for that time should be binding than that the people should live altogether without Laws and without Judgements which must necessarily introduce the greatest disorder and confusion Cicero condemns Sylla's Laws as too cruel against the children of those that were proscribed in making them uncapable of suing for Honours yet he thought fit that those Laws should be observed Affirming as Quintilian tells us that the state of the Common-wealth was so contained in those Laws that if they were not kept the Common-wealth at that time could not have subsisted Florus also concerning the Acts of the same Sylla saith thus Lepidus went about to rescind the Acts of this so great a man and indeed not without cause if at least he could have done it without the ruine of the Common-wealth And by and by It was expedient for the Common-wealth being then sick and wounded to be governed by any Laws whatsoever rather than to fret and scarrifie her Wounds by attempting an untimely Cure Yet notwithstanding at such times and in such Cases wherein our obedience is not so exquisitely necessary and yet may help to confirm the Usurper in his unjust possession If by our disobedience we incur no great danger we must not obey But whether it be lawful for the people by force of Arms to deject him that shall thus usurp the Soveraign power or to kill him is disputable XVI An Usurper may be killed during the War if no contract be made with him And in the first place If he that usurps another mans dominion have not gained it by a Just War that is by such a War as hath all the Rights required by the Law of Nations nor by any contract or agreement made with him or Faith given to him but that he holds his possession by force only The Right of War seems in this case to continue By the Right of the War continued and therefore what may lawfully be done against an enemy may lawfully be done against him whom any private man that hath not given his Faith to him may lawfully kill In reos Majestatis publicos hostes omnis homo miles est Against Traytors and publick Enemies every private man saith Tertullian is a Souldier So against such as desert their Colours in the time of War Tertul. Apolog. it is indulged unto every man to take publick revenge in order to the common safety XVII Or by vertue of some antecedent Law The same may be said if before such an Invasion there were extant any such Law authorizing any private man to kill him who dares in his presence commit such or such a fact As for example If being but a private man he shall go with a guard about him or if he shall attempt a Fort or kill a Citizen uncondemned or illegally condemned or if any man shall presume to create a Magistrate without just suffrages Many such Laws we may read of to have been in force among the Cities of Greece with whom it was also thought lawful to kill such Tyrants Such was that Law of Solon in Athens renewed after his return from Piraeeus against such as had abolished Popular Government or that after such abolition had born any office The like Law there was also in Rome called the Valerian Law against any man that should assume the office of a Magistrate without the peoples consent making it lawful for any man to kill such a man uncondemned Plut. Public as Plutarch relates where he thus distinguisheth Solon's Law from that of Publicola's Solon would have such a man legally convicted but Publicola permitted any man to kill him that usurped the office of a Magistrate without any formal Process And such was the Consular Law immediately after the Decemviral Government That no man should dare to create a Magistrate without an Appeal and he that created such might by the Laws both of God and Man be killed XVIII By his Commission who hath Right to the Empire No less lawful it is for him to kill an Usurper that hath an express Warrant so to do from him to whom the just Right of Government belongeth whether it be in the King the People or the Senate Amongst whom likewise we may place the Protectors or Guardians of Kings during their nonage Such as was Jehojada's to King Joas at whose command Athalia was deprived at once both of her Life and Kingdom 2 Chron. 23. XIX Why an Usurper may not be killed but in one of these cases Now unless it be in one of these Cases I cannot perceive how it should be lawful for any private man by force either to deject or to destroy him that usurps the Imperial Dignity Because possible it is that he who hath the true Right had rather prefer the peace and tranquillity of his Subjects though under the Usurpers power than embroil his Countrey in blood or to vex his Subjects with Civil War which are the sad and bloody effects and consequences that attend the Murther or Expulsion of Kings especially if his quarrel be espoused by either a strong Faction at home or powerful Friends abroad Or because it is at least doubtful Whether that King People or Senate in whom the Right of Empire is are willing that the matter should be brought to so desperate an issue And without the precise knowledge of this all violence of this kind is unjust It is very true what Favonius in Plutarch observes Pejus est Bellum Civile Dominatu Illegitimo Vita Bruti An Intestine War is more destructive than any Tyranny For though the Rage of Incensed Tyrants may produce more Tragical effects upon some particular Families ☜ yet the Deluge of a Civil War spreads farther continues longer and leaves more dreadful prints behind it than any Tyranny Give me any peace saith Cicero rather than a Civil War Titus Quintus told the Lacedaemonians Liv. 34. That it would be much better for them to bear with the Tyranny of Nabis than by endeavouring by Arms to recover their lost Liberty to make the Tyrants Grave in the ruines of their City And to this purpose was that prudent advice of Aristophanes Leo in Civitate non est alendus
own safety by flight is the most probable opinion notwithstanding the charge given by the Apostle Gal. 6.5 Tit. 2.9 â— Pet. â— 16 and by the ancient Canons forbidding Servants to flee from their own Masters because those Precepts were general and opposed only to that error which was then growing namely that denyed all manner of subjection whether publick or private as being inconsistent with Christian Liberty XXX There are divers kinds of Servitudes Besides that slavery which is perfect there are others imperfect as those that are limited to a certain time or to certain things or upon conditions Of such there were divers among the Romans as that of their liberti nexi addicti asscripti glebae statu liberi As also among the Jews there were those that served seven years and that bound themselves until the next Jubilee and then were free And such were the Penestae among the Thessalonians and all Mercenaries amongst whom are to be reckoned our Apprentices here in England who for a certain number of years are under so hard a discipline as doth but little distinguish them from those of a servile condition and such like All which differences do depend either upon some Laws or upon some Contracts his servitude also seems to be naturally imperfect who is born of Parents whereof one of them is bond and the other free for the causes aforesaid XXXI Publick Subjection by consent Publick Subjection is when any one Nation or People do give themselves up to the power and command of another either of one man or many or of another people or Nation The form of such a voluntary rendition we have already set down in that of Capua The like is that of the people of Collatia Do ye give up unto me and unto the jurisdiction of the People of Rome the Collatine People with their City Fields Water Bounds Temples Vtensils with all things else whether Divine or Humane We do say they And I accept thereof Whereunto Plautus seems to allude in his Amphitryo All which the Persians comprehend under the general names of Earth and Water This is an absolute Subjection but there are some likewise that are not so full and absolute in respect either of their manner of holding it or of that arbitrary power of command of the several degrees whereof we have already elsewhere discoursed Lib. 1. c. 3. XXXII What Right is gained over persons by way of punishment There is likewise an involuntary subjection when by reason of some delinquency we forfeit our liberty and are forcibly reduced into servitude by such as have a right to punish us and who those are we shall shew hereafter And thus may not only private men be brought into slavery as at Rome Qui ad dilectum non respondebat He that refused to perform an Office being thereunto chosen and they that were not enrolled or registred in the number of Citizens and afterwards women who though otherwise ingenuous yet if they married another mans servant lost their own freedom But the publick things of a Nation may be thus subjected for some publick injuries done but with this difference that if the State be brought into captivity it is perpetual For as in the Laurel though the leaves dye yet is the Tree always green so though every person in that Nation be mortal yet doth Succession make the people immortal But in personal bondage Noxa sequitur caput The punishment never exceeds the person offending but both these servitudes as well private as publick being penal may be either perfect or imperfect according to the offence and punishment thereunto due Now of that servitude whether private oâ— publick that ariseth from the voluntary Law of Nations we shall have occasion to treat when we come to the direful effects of War CHAP. VI. Of that Right which is derivatively acquired by the voluntary Fact of a man wherein is handled the Right of Alienation of Empires and Things thereunto belonging I. To make an Alienation valid what is required from the Giver II. What is required from the Receiver III. That Empires may be alienated sometimes by the King sometimes by the People IV. That the Government over one part of a Nation cannot be alienated by the people if that part dissent or be unwilling V. Neither can one part alienate the Government over themselves unless in case of unavoidable necessity VI. The Causes or Reasons of this VII That the Empire over some place may be alienated VIII That no part of an Empire may be alienated by the King either for profit or necessity IX Vnder this Title of Alienation all Feoffments and Morgages are comprehended X. So under Empires are all lesser Jurisdictions which cannot be alienated but by the special consent of the People or by Custom XI No more can the Peoples Patrimony be alienated by the King XII That the fruits and mean profits of the Patrimony must be distinguished from the Patrimony it self XIII Some parts of the Peoples Patrimony may be engaged by the King for debts how far and why XIV That a mans Testament is a kind of Alienation and is warranted by the Law of Nature I. What is requisite to a perfect Alienation HItherto we have spoken of Original Right Now we are to treat of that Right which we derive from another and this may be done either by the fact of the Person that gives it or by some Law that warrants it for that the right owners of things should have power to assign their interests either wholly or in part unto others propriety being once introduced is most agreeable to the Law of Nature And therefore Aristotle places it in the very definition of Dominion As if that only were truly and simply ours 1 Rhet. 5. which we have a Right to alienate Wherein two things only are to be observed one in the Donor the other in the Donee First in the Donor the internal act of the Will only is not sufficient unless it be declared by some overt act as by words or some other external signs For of the inward acts of the mind we are no competent Judges neither is it congruous to the nature of humane society But that there should be also a publick delivery of the thing transferred is required by the Civil Law which being now received by most Nations is though improperly said to be required by the Law of Nations So in some places it is required that every Alienation should be published either before the People or before the Magistrate and that it should be also recorded all which do certainly proceed from the Civil Law But because every Alienation of a mans Right ought to be done with sound Judgment therefore the acts of the Will that are exprest by some overt signs are to be understood the acts of a mind endued with Reason II. What in the Receiver So likewise in the Receiver setting aside the Civil Law it is naturally requisite that he should express
that as those Alienations so these Infeudations of Kingdoms which Kings have made without the peoples consent yea and the Remission of Homage too have by many people been made void Now the people are said to consent either when the whole body of them do meet to express it as the Germans and Gauls were wont or when the several Provinces do it by their Deputies being thereunto sufficiently authorised As in the German Empire the consent of the Princes Electors doth both by Custom and Covenants conclude all the orders thereof in any Alienation for Whatsoever we do by another is reputed our own act Id facimus quod per alium facimus So neither can any part of an Empire be morgaged without the like consent not only because it usually introduceth an Alienation but for that Kings are bound to their Subjects to exercise the Soveraign Power by themselves and so are the people in general to their respective parts to conserve the administration of the Empire entire this being the chief end of their Consociation X. Inferior Jurisdictions not alienable by the King But as to other lesser Civil Functions I see no reason why the people may not by an hereditary right grant them at their pleasure because they do not thereby diminish the intire body of the Empire yet cannot a King do it without the consent of the people if we consine our selves within the bounds of nature because the effects of a temporary power such as Elective and legally successive Kingdoms are can be but temporary yet may the people as well by their express consent as by their long continued silence give that Right to their Kings For so the Histories of the Medes and Persians do inform us that their Kings usurping this Right did anciently give away whole Towns and Provinces to be held by a perpetual right XI Not the peoples patrimony That part of the peoples Patrimony being amongst the ancient Grecians a part of the common Fields the fruits whereof were designed for the maintenance either of the publick charge of the Common-wealth or of the Royal dignity cannot either in the whole or in any the least part thereof be alienated by Kings without the consent of the three States that is the Clergy Nobles and Commons because they have no right to any thing more than to the present profits no not to the smallest part of it as I have said For Quod meum non est ejus nec exiguam partem alienare mihi jus est Of that which is not mine I cannot alienate the smallest part Yet the people may sooner be presumed to consent by their knowledge and silence in such small matters than in greater And the like may be presumed in cases of common profit or danger concerning the alienation of some parts of the Empire if it be not of any great moment for that Patrimony was at first instituted for the good of the Empire XII The patrimony to be distinguished from the mean profits But many are deceived in that they do not rightly distinguish between the things arising from the Patrimony as its fruits or profits and the Patrimony it self As for example the washing of the banks of a River is patrimonial but the increment which the Flood produceth is but the fruits and profits of it so the power and right of raising a Tax is patrimonial but the mony so raised is but the profits of that Right The right to confiscate is patrimonial but the Lands confiscated are but the profits of that right XIII How far forth that part of the peoples patrimony may be pawned by the King and why Those parts of the peoples patrimony which are so designed as aforesaid may upon just cause be pawned or morgaged by Kings that have full and absolute power that is that have power upon occasion to raise new Taxes upon their Subjects For as Subjects are bound to pay such Taxes so are they likewise bound to satisfie that for which any part of their patrimony is for the publick good pawned the redemption whereof is some kind of Tribute For the very patrimony of the people is a kind of pawn given to the King for the payment of the publick debts and any thing that is thus pawned to me I also have a right to pawn to another Yet what hath hitherto been said is of force unless it be where the Laws of the Land do either enlarge or contract the power either of the Prince or the people XIV Testaments a kind of Alienation This also must be observed That under this Title of Alienation we comprehend likewise Testaments For though Testaments as some other acts also are beholding to the Civil Law for their form yet is the matter of it nearly allyed to dominion and it being granted to the Law of Nature For a man may by Testament give away his Estate not only fully Arist Pol. l. 2. c. 7. but under certain conditions nor irrevocably only but with a power to revoke and yet he may still keep the possession of what he so gives with a full right of enjoying it For a Testament is an Alienation of a mans Estate at his death and revocable till then and yet reserving in himself the full possession and absolute fruition during life Quint. Pater Vide supra Bo. 1. ch 3. §. 12. And therefore Solon in permitting his Citizens to make their Testaments Made them absolute Lords and Proprietors of what they had Surely our Estates would be but burthensom unto us if the power we have in it during life should be taken away from us at our deaths Abraham in pursuance of this Right had he dyed childless had lest by his Testament all his Estate to Eliezer as we may collect from Gen. 15.2 And the making of Testaments was of frequent use among the Hebrews as may appear Deut. 21.16 Ecclus 33.25 But that in some places it is not permitted to Strangers to make their Wills is not to be attributed to the Law of Nations but to the municipal Laws of some Countries and if I mistake not enacted in such an Age when all Strangers were accounted enemies and therefore amongst the more civilized Nations hath long since been worn out of use CHAP. VII Of that Right that is acquired by Law and of Succession from an Intestate I. Of the Civil Laws some are unjust and therefore cannot transfer a Right as in things shipwrackt II. By the Law of Nature a Right may by gained in things taken from another for a just debt and when III. How Succession to an Intestates estate doth naturally arise IV. Whether by the Law of Nature any part of the Parents goods be due to their Children explained by distinction V. The Children of the deceased preferred to the Estate before their Parents and why VI. The Original of Representative Succession VII Of Abdication and Exheredation VIII Of the Right of Natural Issue IX Where are no Children nor Will nor certain Law extant
as they are a Nation and all Kings as they are Kings should sympathize with their Neighbour Nations and Kings that are oppressed Neither is every person more bound to defend his own members than Princes are in obedience to Christ to defend each other with that power which he hath given them But this duty neither Kings nor People can well perform whilst Christendom is invaded by the Enemies of Christ unless they do mutually assist each other which can never be done successfully unless they strongly confederate together for that end And such a General League between Christian Princes hath heretofore been made whereof the Roman Emperor was by general consent chosen General whereby all Christians were obliged to contribute either Men or Mony according to their power as to the defence of Religion which is or ought to be the common cause for the neglect whereof I cannot see how any people can plead excuse unless it be such as are engaged in an inevitable War or afflicted with some other general calamity at home XIII If our Confederates are ingaged in several Wars which we ought to assist Another Question doth often arise namely in case two Nations are engaged in War one against the other and both are our Confederates whether of them we are bound to help Where in the first place we must remember what we have already said that ad Bella injusta nulla est obligatio No League can bind us to a War that is unjust He therefore is to be preferred that hath the juster cause if the War be against a stranger Prince yea if it be against another Confederate The words of him that swears Fealty to another are these Si scivero velle te aliquem juste offendere inde generaliter aut specialiter fuero requisitus meum tibi sicut potero praestabo auxilium If I shall understand See Book 3. chap. 25. §. 4. that thou wilt make an offensive War against any man upon a just ground and that I am either generally or specially required to give thee mine assistance I shall do it to my utmost power Thus Demosthenes in his Oration concerning Megalopolis The Athenians are bound by their League to aid the Messenians their Confederates against the Lacedaemonians their Confederates if the Lacedaemonians were the first Aggressors which holds true unless in our Articles it shall be expresly forbidden to send out any aid against such a Confederate Polyb. l. 6. In that Agreement which Hannibal made with the Macedonians there is this Clause Hostes erimus hostium exceptis Regibus Civitatibus c. Quibuscum foedus nobis amicitia est Enemies we shall be to thine Enemies except only such as are in League and Amity with us If two Nations be at War and both our Confederates and neither of them have a just cause which may so happen we are to stand Neuters and to assist neither So Aristides If either of our Confederates had required our aid against strangers it had been readily granted but if against one another we desire to stand Neuters Leuctrica If both our Confederates be engaged in a just War against strangers and both send for Aid if we are able we must send to both either Men or Money But if a Prince shall be required by both to aid them in his own person having so promised then because his person cannot be divided it is but reasonable that he should prefer him with whom he hath contracted the ancienter League As the Epirots answered the Lacedaemonians in Polybius The like answer was given to the Campanes by the Roman Consuls In contracting friends it is fit that we take care that the new do not supplant the old The Ancienter the Leagues are the more Inviolable Thus Ptolomy answered the Athenians in the like case Amicis ferenda Auxilia contra hostes non contra amicos We are to aid our Friends against Enemies but not against our Friends Which also will admit of this exception unless the latter League do bind us farther than our bare promise for it may include a translation of the Government and imply somewhat of subjection And thus we say that in selling of Goods the first sale is the best unless the latter shall also transfer the property and dominion So Livy of the Nepesines That the faith given upon their surrender bound them faster Deditionis quam societatis fides sanctior than that given by former Leagues as to their Associates Some there are that do more nicely distinguish between these But what I have said I take to draw nearest as to simplicity so also to truth XIV When renewed A League for a certain time prefixt is not easily presumed to be renewed through silence unless such acts intervene which cannot otherwise be understood for a new obligation is not easily to be presumed XV. The League is void if either party break it If either party violate the League the other party is freed because each Article of the League hath the force and vertue of a Condition Thus Thucydides determines it They saith he are not the first breakers of the League who being deserted seek for aid to others but they that perform not by their deeds what they have promised to do upon their Oaths And in another place Si vel tantillum ex dictis pars alterutra transgrederetur rupta sunt pacta If either party shall transgress the Articles they have sworn unto never so little the League is broken This also is true unless it be otherwise provided by the League as it usually is lest what is seriously debated and solemnly sworn should be adjudged to be broken upon every rash offence XVI How far Generals engaging are bound if the Prince refuse Sponsions are such promises or undertakings as Generals make without the consent of their Soveraign for the performance whereof they engage themselves or give hostages till it be confirmed by their Prince or Senate The subject matters whereof are as diverse as of Leagues They differ from Leagues in the dignity of those that make them Concerning these Engagements two Doubts usually arise The first is If the matter engaged for be refused by the King or State how far forth are the parties engaged bound Whether to make up what the King or State shall not think fit to grant or to restore all things to the same state and condition as they were in before such agreement was made or to deliver up their own bodies and the hostages to the Will of the Enemy The first whereof is most agreeable to the Civil Law of the Romans The second to Equity and Reason which we find urged by the Tribunes of the people in the Caudine Controversie The third is most approved of by Use and Custome as appears by the examples of the two notable Sponsions made at Caudis and Numantia But by no means may we admit The Sponsions made at Caudis and Numantia that either the King or
might not defend them Yea certainly they might but not by vertue of the League but by the Law of Nature which that League had not abrogated So that the Saguntines were at that time both to the Romans and to the Carthaginians in such a state as if in that League there had been no mention at all made of Friends In which case both the Carthaginians might revenge the injuries done them and the Romans might also justly defend them without breaking their League one with the other Thus the Romans answered the Samnites who desiring that they might have liberty to make War upon the Sidicines without offence to them That they knew nothing to the contrary but that the Samnites had power to make Peace or War upon whom they pleased And in the League made with Antiochus It was provided That if any of the Allies of the Romans should make War against Antiochus it might be lawful for him by force to repel them So as he held not any of their Cities from them by the Right of War nor contracted any Alliance with them Liv. l. 38. In the time of King Pyrrhus it was thus covenanted in a League between the Romans and the Carthaginians That in case either of the two Cities should make Peace with Pyrrhus it should be with a reservation of Liberty to send succours unto that City against which Pyrrhus should at any time make War I do not say that the War on both sides in these cases could be just But I deny that if either party did send succours unto the other they did therein violate the League made between them As Polybius rightly distinguisheth concerning the succour sent to the Mamertines Pol. l. 1. Whether it were just and whether it were lawful so to do without violating the League Thus doth Alamandaras King of the Saracens plead for himself That none of the Articles of the Agreement made between the Romans and the Persians had been by him violated for as much as he was not so much as named in them by either party Procop. Pers Thus also did the Corcyrians tell the Athenians That notwithstanding their League made with the Lacedaemonians they might send them succours because it was in their own power notwithstanding that League to admit of any new Friends at their own pleasure And the Athenians did afterwards assume this Liberty commanding their Generals not to make War against the Corinthians unless they saw the Corinthians ready to invade the Corcyrians in any of their Territories lest they should seem to break their League with the Corinthians For it is no breach of a League that they who are injured by others should by others be defended so long as the Peace in other things is preserved And so after these times the Corcyrians decreed That they would assist with their Arms the Athenians their Allies according to their Covenants and yet preserve the Rights of Friendship with the Lacedaemonians Justin writing of those very times saith That the Athenians broke that Truce in the name of their Allies the Corcyrians which they made in their own name with the Corinthians thinking it a lesser Perjury to help their Friends being invaded than to engage against the Corinthians in a Solemn War So the Athenians making a Peace with King Philip did expresly provide that those Grecian Cities that were not comprehended in that Peace might remain free And if any man did molest them it might be lawful for those that were included in that Peace to defend them And let this example suffice for equal Leagues XIV What is meant by this clause That one party shall not make War without the consent of the other In such Leagues as are unequal we shall give another If it be agreed that one of the Confederates shall not make War without the others Consent as it was in that between the Romans and the Carthaginians after the second Punick War and as it was also in the League between the Romans and the Macedonians before the reign of King Perseus Since under the notion of making War all Wars may be comprehended as well that which is Defensive as that which is Offensive The word is to be taken in its strictest signification lest the liberty of defending our selves being Natural should be too much straitened XV. That Carthage should be free how meant Of the same kind is that which the Romans promised namely That Carthage should be free which though it could not reasonably be understood of Absolute Power from the very Act for they had long before lost the Right of making War and diverse other priviledges yet was it to be presumed That some kind of Liberty should be lest them and so much at least that they should not be obliged to translate the Seat of their dwelling into a Foreign Countrey and to have their own City demolished It was therefore a foul gloss which the Romans did afterwards put upon that Promise when they urged That by Carthage they meant the multitude of their Citizens and not their City which though improper may be granted because of that attribute Free which is more agreeable to their Citizens than to their Town For in thâ—se words Carthage shall be left free was meant that it should be governed by its own Laws And as Diodorus Siculus expounds it That they should enjoy their own Laws and Territories their own Religious Rites their own Sepulchres and their own Liberties For so much was granted in leaving them free So that what the Romans objected was a meer cavil in making them free yet taking their City from them XVI What Arguments are Real and what Personal Another Question likewise doth usually arise concerning Contracts real and personal When we have to do with a free people there is no question but that the Contract that is made with them is in its own nature real because the subject is a thing permanent Yea though that popular State should turn into a Monarchy yet would the League hold because the body of the people is still the same though the head be changed neither doth the Supreme Power cease to be the power of the People because exercised by the King where we must except this case namely where it appears that the cause was proper to that State only as when Free Cities enter into a Social League for defence of their own Liberties But if a League be contracted with a King it is not instantly to be accounted Personal Because as Vlpian well observes for the most part the person is inserted in the League Not that the League is personal but that it may appear by whom that League was made But if it be inserted in the League That it should stand for ever or that it is so made for the general good of the kingdom or that it is made with him and his Successors For this addition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is usual saith Libanius in his defence of Demosthenes Or to continue for
not into the world to invade another mans Glory but to communicate his own not to usurp an earthly Kingdom but to confer an heavenly St Paul tells Timothy That a Bishop should be no striker 1 Tim. 3.2 Nor rule by constraint or compulsion for to dâ—ive by force better becomes a King than a Bishop Princes may exercise their Power in punishing Offenders to deter them from doing evil De Sacerd. l. 2. But what we do saith Chrysostome must be not by coercion but by perswasion whereunto he adds this Reason For God crowns not our forced but our voluntary or as St Paul speaks our reasonable service Ad Eph. 1.4 So in another place It is our duty to instruct perswade exhort and reprove but not to command or to compel Consiliariorum locum obtinemus We serve as Councellors to advice and to give our Opinions but still we leave our Auditors to their free choice whether they will act accordingly or no We have no such power given us as to restrain men from sinning by severe punishments Whence it is evident that Bishops as such have no Right of Domination over men In Epitaphio Nepotiani as Kings and Princes have St Hierome distinguishing between a King and a Bishop concludes That the Power of a Bishop is much inferiour to that of a King for a King may enforce to an unwilling obedience but a Bishop hath no power but over such as are willing to obey him Episcopus docet ne Judex inveniat quod puniat The Bishop instructs and admonisheth that the Magistrate may find no cause to punish It was well said of Frederick the Emperour concerning the Pope Ecclesiam regat ille suam divinaque jura Temperet Imperium nobis fascesque relinquat Let him his own Church rule by Laws Divine But let the Sword and Scepter still be mine And when Suenno King of Denmark stood Excommunicate William Bishop of Rosâ—hil in opposing himself against him at his entrance into the Church with his pastoral staff and exposing his breast naked to the officers of the King who offered to draw upon him did therein perform the office of a good Bishop The like did St Ambrose to the Emperour Valentinus as we have declared above Bo. 1. ch 4. §. 5. but whether it be lawful for Kings themselves to make War upon such as have rejected Christianity by way of punishment we have already elsewhere discourst in the Chapter of Punishments as far as sufficeth to our purpose XV. The pretence of fulfilling of prophecies no cause of War And hereof also I shall give my advice and that not in vain but because I foresee by comparing these modern times with those long since past much mischiefs likely to ensue unless in time carefully prevented that the hopes we conceive that some things are due unto us by our own interpretation of some Divine Prophecies can be no cause of a just War Zozimus records it of Nicomedes the Son of Prusias that mis-appling a Prophecy of one of the Sibyls by the perswasion of Attalus made War against his own Father the like he and Ammianus relates of one Theodorus so doth Procopius of John of Cappadocia In the time of the Emperour Gratian. For besides that those Prophecies which are not fulfilled cannot certainly be understood without a Prophetick Spirit the very time of the accomplishment of such as are certain may be hidden from us And lastly the bare prediction unless it be backed with an express command from God gives no right to any man sâ—eing that God permits such things as he predicts to be sometimes brought to pass by wicked men and by wicked actions For the Books of the Prophets are shut and sealed up until a certain time so that they cannot be understood Dan. 12.4.8.9 The Vision that the Prophet Habbakkuk saw concerning the judgments to fall on the Chaldaeans was not immediately to be inflicted on them But it was to be fulfilled in its appointed time In the end whereof saith that vision it shall speak and not lye though it do tarry yet was the Prophet to wait for it for it shall surely come to pass and not stay Hab. 2.3 Time then is the best interpreter of Prophecies St Jerome upon that place of Daniel before-recited writes thus If the Prophet did hear and not understand what will they do who presuming on their own understanding have published this Book which is sealed up and until the time come for its accomplishment So Procopius concerning the Oracles of the Sibyls Which saith he I believe are beyond all humane power to unfold until the time come when they shall be fulfilled Let Divines therefore take heed how they undertake to unriddle Prophecies and let Politicians beware how they give credit to over-arrogating Divines though the things predicted were certainly to come to pass yet are the times and means when and whereby they are to be accomplished very uncertain and therefore it is no dishonour to profess our ignorance of them Eorum quae scire nec datur nec fas est docta est ignorantia scientiae appetus insaniae species Some kind of madness it is to desire to know those things which are therefore screened from us that we should not know them The secret things belong unto God but the things revealed unto us Deut. 29.29 XVI Nor a debt not strictly due but some other way Thus also is it to be observed that in case any thing be owing to a man not strictly out of justice but arising from some other vertue as from liberality favour mercy love or the like as it cannot be recovered by any course of Law so neither can it be required by War For to either of these it sufficeth not that what is required is for some moral reason to be done But besides that it is necessary that there should be in us some kind of Right unto that such a kind of Right as the Laws both Divine and Humane do sometimes give even unto such things as are due by other vertues which when it happens then it becomes a debt after a new way which now appertains to justice But this being wanting the War that is made for this cause is unjust as was that War made by the Romans against the King of Cyprus or ingratitude For he that doth a courtesie to another hath no Right to exact thanks otherwise it were not a courtesie but a contract or debt XVII Though the War be just yet the manner of prosecuting it may make it unjust It is also to be observed that though there be a just cause of War yet may this just cause be spoiled by the access of some vice that cleaves to the action from the mind of the Agent either that something else not by it self unlawful doth more efficaciously move us to the War than the Right it self as when we have a greater prospect unto Glory or when some kind of profit either publick or
Christian Doctrine X. Single Combats permitted Near of kin unto this are single combats between Competitors the use whereof is not altogether to be rejected for where two persons standing in competition for one thing which cannot be divided are ready to embroil a whole Nation in blood It were much better and more just that one should perish for all than that all should perish for one only In which Case that of Jocasta in Seneca is good advice Plut. Otho Theb. Rex sit è vobis uter Manente regno quaerite Try which of you shall reign But let the Kingdom still remain And this if not justifiable in the competitors themselves yet may it well be accepted of by the people if offered as being of two evils by much the lesser Thus Metius in Livy bespeaks Tullus Lib. 5. Let us agree about some way whereby it may be determined whether of us two shall reign over the other without the effusion of so much blood or the slaughter of either of our people Strabo set it down as an ancient custom among the Grecians And Aeneas in Virgil accounted it a very just thing that the quarrel between Turnus and him should have been thus decided Aen. 11. Fitter 't had been for Turnus thus t' have died And for this cause it was that M. Anthony challenged Caesar to a single combate as Plutarch records Vit. Ant. Sure it is that amongst other customs of the Ancient Francks Agathias highly commends this whose words being worthy of Eternal Memory are to this purpose No sooner did any quarrel arise between their Kings but immediately they betake themselves to their Arms they raise Armies and march against each other so furiously as if nothing but an absolute conquest could end the controversie but yet as soon as the Armies met and faced they presently laid aside all animosity and made peace thereby enforceing as it were their Kings to dispute their grievances rather by Law than Arms or if that pleased them not then to end their quarrels with the peril of their own lives only as judging it neither just nor reasonable nor indeed agreeable to their national customs for their Kings to sacrifice the Commonwealth to their private hatred wherefore they instantly disband their Armies reconcile their Princes and make Peace Tanta in subditis cura justitiae patriae amor in regibus animus placidus suis obsequens So great in the subjects was their esteem of justice and love to their Country and in their Kings their moderation of spirit and their compliance with the people in order to their common safety XI In cases equally dubious the present occupant hath the best right Although where the equity of the cause is doubtful both Parties are obliged to seek after conditions of peace to prevent the miseries of War yet doth it more concern him that demands than him that enjoys what the other requires as in the like equal cause Melior est possidentis conditio The title of the present occupant is presumed to be best as being most agreeable not only to civil but to natural Right the reason whereof we have already given elswhere out of Aristotle's Problems whereunto we must here add That War cannot be lawfully made by him who though he know his title to what he claims to be good yet cannot produce evidence sufficient to convince the present occupant of the illegality of his possession because he hath not a Right to compel his Adversary to leave his possession XII If neither be possest then a partition is just Where the Right is equally ambiguous and neither party in possession or both equally then he is to be reputed unjust that shall refuse an equal partition of the thing controverted being offered unto him XIII Whether a war may be on both sides just explained by many distinctions By what hath been herein said it will be no hard matter to resolve that question which is so frequently controverted Whether a War in respect of the principal promoters of it can be on both sides just where we must first distinguish between the various acception of the word Just * So Gratian distinguisheth justice into that which respects the cause the order and the mind c. 11. q. 5. post C. Episcopus For a thing may be said to be just in respect of the cause or according to the effects Again a thing a may be just in respect of the cause either according to the special and strict acception of justice or according to its more general acception as it comprehends whatsoever in equity or honesty ought to be done Again the word Just taken in its special signification may be subdivided into that which respects the work done or into that which respects the mind of him that doth it for the agent may sometimes be said to do justly whilst he doth not unjustly though that which he doth be not just As Aristotle * Eth. l. 5. c. 10 11. Greg. rightly distinguisheth between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to do unjustly and to do that which is unjust Bonis male utuntur qui temporali lucro juste judicant They make ill use of things in themselves good who do justice for rewards sake because it is the hopes of gain and not the love of justice that excites them to defend the truth Now in this special acception of the word Just and as it relates to the thing it self no War can be on both sides just as neither can any other contest be Quia facultas moralis ad contraria non datur per rei ipsius naturam Because the very nature so the thing about which the dispute was will not admit of a moral power to things that are contrary as namely to do a thing and yet to oppose the doing of it But yet it may very well be That neither of the Parties warring against each other doth unjustly because no man can be said to do unjustly but he that knows that which he doth to be unjust But many men do not know that they do amiss though that which they do be in it self unjust so when men go to Law they may justly that is with a good mind and intention do it on both sides because they do both conceive that they are in the right To some things the Right is not discernable whose it is and then whilst each endeavours to take that from another which he thinks belongs to himself who can condemn either of injustice for of many things as well in point of Right as in matters of fact whence Right ariseth men are ignorant Now in the general acception of the word Just that is said to be just in the doing whereof the Agent is altogether innocent for the act may be unjust and yet the Agent blameless by reason of his insuperable ignorance An example whereof we have in such as being through no default of theirs ignorant
of the Law do not observe it although haply that Law be promulgated and time of it self sufficient allowed for the knowledge thereof As also in such as go to Law both Parties may be free not from injustice only Nemo debet jus suum indiscussum relinquere Tentanda sunt quaecunque tantum sunt Baldus but from any thing else that is blameable especially when both or either of them contend not in the behalf of themselves but of others as a Tutor for his Pupil a Guardian for his Ward whose Right he is bound in duty to defend though that Right be but uncertain So in a wager at Law two persons may contend for one and the same thing and yet neither of them be unjust So also a Councellor may plead for either of them without the least derogation to his honesty Again when something that is very profitable stands in opposition to what is honest it is no easie matter to tell whether of them to follow When we first entred into War with Niger saith Severus the Emperour there was I confess no very plausible pretence for War but the Empire lay at stake between us and both of us strove which should appropriate it to himself Herodian Nay as Aristotle well notes to say of a Judge that he judgeth right is but an Ambiguous speech for it may signifie either that he judgeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plainly as he ought without any ignorance or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to the best of his knowledge or the clearest evidence that is brought before him And therefore the sentence which must pass according to that evidence may be through mis-information unjust and yet the Judge that passeth that sentence may be righteous * Si dubium sit à qua parte stet justitia hanc si utraque pars quaerit injusta esse neutra possit If it be doubtful on what side the Right stands if both Parties contend for it it is probable that neither doth unjustly The Jews made War against the Canaanites justly being so commanded by God and the Canaanites being ignorant of that charge given against them did justly in defending themselves wherefore that War was on both sides just Thus Pope Pius the second answered the Hungarian Embassador that complained against the Emperour namely He thought that the King of Hungary did intend nothing dishonestly and he knew that the Emperour was a great lover of justice But both contending for the Kingdom probable it was that neither of them thought his Cause unjust In disceptationibus fori par est litigantis utriusque jus donec lata est pro altero eorum sententia In all controversies this is found true but especially in War that both Parties pretend to maintain a Cause that is just But in War it is hardly possible that either party should be in that sense just that is free from all blame by reason of that great defect of love and that overmuch rashness that for the most part inseparably accompanies it besides the weightiness of the business it self which is such as being not satisfied with probabilities strictly requires such proofs as are demonstrative and convincing But if we account that to be just which is permitted to enjoy some effects of Right it is most certain According to the effects of right War may be on both sides just that War in this sense may be on both sides just as will appear anon when we come to treat of a publick solemn War for so both a sentence though not rightly past and a possession not rightly gained have both of them some effects of that which is right CHAP. XXIV War though Just not to be undertaken rashly I. It it better sometimes to remit our own Right than to engage in a doubtfull War II. But especially when undertaken to exact punishment III. And chiefly by a King that is injured IV. And that sometimes for his own and his Subjects safety V. Certain Rules guiding us to a prudent choice of things apparently good VI. An example whereby we may be guided in our endeavours after liberty or peace whereby the miseries of War may be prevented VII Punishment not to be exacted by War unless by the most potent party VIII War not to be undertaken unless compelled by necessity IX Or when we have some very great Cause together with some notable advantage X. The miseries of War lively described I. Better sometimes to forego our right than to make War for it THough it be not properly pertinent to our purpose in treating only of the Rights of War to shew how far other Virtues do either enjoyn or perswade thereunto yet will it not be altogether impertinent for preventing of mistakes to give some cautions about it lest any man should think that whensoever he hath a Just Cause offered him he is bound to make War or at least that it is at all times lawfull for him so to do whereas on the contrary it is for the most part much more pious to remit somewhat of our Right than to endeavour to defend it by a dangerous War We Christians are especially taught to expose our own lives to the greatest perils that can be to preserve the lives and as much as in us lies to procure the everlasting welfare of others in imitation of our great Lord and Master who laid down his own life to save ours even then when we were strangers nay enemies unto him Rom. 5.6 How much more reason have we to forbear the prosecution of our Just Rights when they cannot be obtained without the effusion of so much Christian blood and the destruction of so many mens Lives and Estates Pol. lib. 4. Rhet. ad Alex. c. 3. besides other mischiefs which War usually brings with it This we are forewarn'd of by Aristotle and also by Polybius not for every such cause to run the hazard of a War For the necessary defence of our Liberties our Wives and Children we may lawfully make War saith Gallio in Seneca but not for such things as are either superfluous or being lost Suasoria 5. Philostratus lib. 23. do not much damnifie us This and somewhat more did Apollonius say to the King of Babylon We are not to contend with the Romans for a few small Villages which many of our Ancestors being but private men did enjoy They must be great matters indeed that should so far provoke us Adv. Apion de popul suis as to undertake a War especially with such potent enemies The like Josephus testifies of his Countrey men It is not our custom to muster up our Forces or to make War to enlarge our Dominions but for the defence of our Laws All other losses we can bear with patience but being debar'd the use of our Religion we undertake War beyond our strength and prosecute them to the utmost of dangers It was prudently advised by Dion Prusaeensis in his Oration concerning War and Peace We are
necessity Nisi malint fame perire Vnless they had rather perish by famine For as Anaxilaus in Xenophon apoligizeth for his surrender of Byzantium being thereunto constrained for want of Bread Pugnandum est hominibus in homines non in rerum naturam Men ought to fight against men but not against nature neither do men commend a voluntary death so long as their hopes are above their fears That sentence which Diodorus Siculus past against the Thebans which lived in the time of Alexander the Great stands yet upon record namely That they were the authors of their own ruine for as much as they had with more courage than prudence provoked Alexander to their own destruction And in another place the same Author examining the ground of that War which the Thracians undertook against Alexanders Army after his death saith That in the opinion of the wisest men they had consulted well for their own glory but not so well for their own profit by thrusting themselves over-hastily into so dangerous an enterprise being no ways urged thereunto by any necessity but especially being forewarned by the destruction of the Thebans The like censure doth Plutarch pass upon Cato and Scipio Whom for refusing to submit to Caesar after his victory in Pharsalia he condemns as being the cause that so many and so gallant men did unnecessarily perish in Africa Now what I have here said concerning liberty may likewise be said concerning other things that are desiderable when they cannot be obtained without if not a more just yet at least an equal expectation of some greater mischief For as Aristides saith To preserve the ship with the loss of the goods is usual but not with the loss of the passengers VII War seldom made for punishments by Princes of equal power This also is chiefly to be observed That Wars are seldom or never made for exacting punishments only by such Princes or States as are of equal power for as the civil Magistrate so he that undertakes to punish injuries by Arms must always be presumed to be of power sufficient to enforce it Neither is it prudence only or the love we bear to our Subjects that should disswade us from a doubtful War but sometimes even justice that I mean which is essential to Government which requires as obedience from inferiours so protection and preservation from superiours And consequently as some Divines have rightly observed If a King for any small or trifing cause as for the exacting of punishments which are unnecessary In what case a Prince is bound to repair his Subjects losses engage his Subjects in a dangerous War he is bound to repair the losses they shall thereby sustain for although to his Enemy haply he doth no wrong who hath justly provoked him yet doth he thereby wrong to his Subjects by involving them in a dangerous War for such slight causes as might better have been dissembled and is therefore bound to repair their damages in which sense that of Livy holds true Justum est bellum quod necessarium est pia arma quibus nulla nisi in armis relinquitur spes That War is just that is necessary and Arms are there necessary when there is no hopes of safety but by Arms. This was Ovids wish Ovid. Fast 1. Sola gerat miles quibus arma coerceat arma May then the Souldier armed be When he repels his Enemy VIII War not to be undertaken but in a case of necessity There is then one rare cause when War either cannot or ought not to be omitted as namely when as Flora speaks Jura sunt armis saeviora Laws are more cruel than War it self that is when the oppressions of Tyrants are more greivious than the miseries of War He saith Seneca needs not to fear the miseries of War that suffers the like if not greater living in Peace So Aristides When it is manifest that our condition will be worse in sitting still then we may adventure upon the dangers of War Neither is that opinion of Tacitus much to be condemned where he saith That a miserable Peace may well be exchanged for a doubtful War that is as the same Author saith When if we conquer we enjoy our freedom or being conquered our condition can be no worse Or when as Livy speaks Peace is more grievous to those that serve than War is to those that are free But not as Cicero puts the case if it appear that being Conquered we shall be proscrib'd i. e. our estates shall be sold and our persons banished but being Conquerours we change only our oppressors but are not eased of our oppressions IX Or without great cause and great advantages Another time when War is to be preferred before Peace peace is when upon a rational debate we find that we have the best Right and which is of greatest moment power sufficient to defend it that is as Augustus in Suetonius sometimes said * Sueton. c. 24. When there is more hopes of gain than fear of loss Or as Scipio Africanus and L. Aemilius Paulus were wont to say of the Battel * Aul Gel. l. 13. c. 3. Val. Max. l. 7. c. 2. We ought not to run the hazard of a Battel but upon some unavoidable necessity or upon great and manifest advantage wherewith accords that of Plutarch * Gracchis before-recited To use Iron and Steel without very great necessity neither becomes a good Physician nor a prudent States man The like Zonaras records of Marcianus Kings when they may lawfully enjoy Peace ought not to make War Whereunto we may add that of St. Augustine Pacem habere voluntatis est Bellum autem necessitatis esse debet ut liberet nos Deus à necessitate conservet in pace Peace we should make voluntarily War out of necessity That so God may relieve us in our necessities and preserve us in Peace But then most especially may we make War when we have good cause to hope that our Enemies through fear or by the fame of our Victories will be ready to yield without any or very little danger on our part and this is as Pliny calls it the most glorious of all Victories X. The miseries of War War indeed is as Plutarch speaks * Vit. Eamilli a very savage thing and never comes unaccompanied with a torrent of mischiefs and insolencies Which saith St. Aug. * De Civit Dei l. 19. c. 7. should I undertake to describe when and where would my discourse end But they may say a wise man will sometimes make War as if when he considers himself to be a man he doth not much more grieve to find himself enforced thereunto though that War be just for unless it were just there could be no necessity to make it because it is the iniquity of the adverse part that thrusts a wise man into a just and necessary War which very iniquity as proceeding from men though no necessity of a War should thence arise is
of it Prudence indeed as Aristotle notes is a Vertue proper to Princes but Justice belongs to men as they are men And therefore the reasons of their counsels as Princes are not to be communicated but the reasons of their actions as men may be proclaimed These things considered we conclude with Pope Adrian That where the Subject doth not only doubt the lawfulness of the War but by very probable Arguments is induced to believe that it is unjust especially if that War be offensive and not defensive he is bound to abstain Nay very probable it is That the Executioner whose Office it is to execute the penalty of the Law upon a condemned Malefactor should be throughly informed in the merits of his Cause either by being present at the whole Tryal or by hearing the confession of the person condemned that so he may be convinced that he whom he puts to death hath by the Law deserved it which in some places is observed Neither can there any more probable reason be assigned for that Hebrew Law whereby it was provided That when a Malefactor was to be stoned Deut. 17.7 1 Sam. 22.17 the Witnesses should go before the people and cast the first stone at him And for this Cause it was that the Kings Guards refused to fall upon the Priests of Nob at Saul's command being throughly convinced both of the sanctity of their Order and of the equity of their Cause And for this very reason it was that the third Captain 2 Kings 1.17 being sent by Ahaziah unto Elijah would not lay violent hands upon him And for the same reason it was that many publick Executioners amongst the Jews being converted to Christianity renounced their Offices as being very dangerous if we may give credit to the Martyrology Lib. 1. c. 7. and to venerable Bede V. Extraordinary Taxes to be exacted instead of obedience in this Case But in case the Subjects minds are not satisfied concerning the equity of the Cause by their Princes Declaration then 't is the Office of a good Magistrate rather to impose some extraordinary Taxes upon them than to compel them to serve him in his Wars unsatisfied especially when he may be supplied with men otherwise Now whether these Souldiers do serve him with a good or evil intention is no matter for a good Prince may make use of both as God himself doth of Satan and his Disciples as Instruments to bring about his own most Sovereign purpose or as a poor man may and doth make use of Jews and Extortioners to supply his present wants and that without sin Nay though there be no doubt of the lawfulness of the War yet it is not fit that Christians should be compelled to fight against their wills seeing that to abstain from War even then when it is in it self lawful hath always been required of Church-men and Penitentials to preserve them in the greater sanctity and is in all others many ways commendable When Celsus upbraided the Christians for refusing to go to war Origen apologized for them thus To those who being Vnbelievers would inforce us to fight for the Commonwealth and to destroy men we shall give this Answer That even their own Idol-Priests and those that attend upon the service of their reputed Gods do keep themselves unstained with humane blood that so they may offer up their Sacrifices for the whole Nation with clean and unpolluted hands Neither in case there should arise a War are these men to be listed in their Armies And if this be not done without reason how much more may they be said after their manner to fight who being Priests to the Most High God endeavour to preserve themselves free from bloud and rapine that so whilst others are polluted with spoil and slaughter they may wrestle with God himself by constant and incessant prayers for the welfare of them that make war justly and for the safety of them that govern righteously Apoc. 1.6 Wherefore Origen calls all Christians Priests by the example of the Holy Scriptures 1 Pet. 2.5 VI. When Subjects may justly engage in an unjust War But yet I believe that a Case may so fall out that in a War not only doubtful but manifestly unjust it may be just for Subjects in some measure to defend themselves For seeing that no enemy though prosecuting a just War can have any true and internal right to kill such Subjects as are innocent and no ways accessary to the War unless it be either for necessary defence or by consequence and not intentionally for such Subjects are not liable to punishment it follows That if it evidently appears that the enemy comes with a full purpose not to spare the lives of such hostile Subjects when with safety to himself he may then those Subjects may by the Law of Nature defend themselves which right neither doth the Law of Nations take from them neither will we say That such a War is on both sides lawful for we dispute not here concerning the legality of the War but of a certain and determinate action in the War which action though it proceed from one that otherwise hath a sufficient right to make war yet is unjust and may therefore be justly repelled The End of the Second Book Hugo Grotius OF THE RIGHTS OF WAR and PEACE BOOK III. CHAP. I. Of certain General Rules shewing what by the Law of Nature may be lawfull in War wherein also he treats both of Fraud and Lies I. The order and method of the Book following II. The first Rule whatsoever is necessary to the end is lawfull in War explained III. The second Rule A Right in War may arise as well from Causes subsequent as from the beginning of the War IV. The third Rule that in War some things may be done indirectly without injury which if by themselves and intentionally done were unlawfull with a caution V. What may lawfully be done to such as supply the enemy with things needful this explained VI. Whether in War Fraud be lawfull VII That Fraud in its negative act is not of it self unlawful VIII Fraud in its positive act is either by such outward acts as admit of several constructions or by such as signifie as it were by arguments fraud in the former sense lawfull IX Of that in the latter sense the question is difficult X. The use of words in another sense than that wherein we know they are understood not always unlawfull XI The form of a Lye as it is unlawfull consists in the repugnancy it hath with anothers Right this explained XII That it is lawfull to speak that which is false to Children and Madmen XIII So also when he is deceived to whom our speech is not directed and whom without speech we may lawfully deceive XIV And when we are assured that he to whom we speak is willing to be so deceived XV. And when he that speaks exerciseth that Supereminent Power that he hath over his own
Priviledges were but Private Laws which are not to be maintained against the Publick Safety which is the highest Law and this she asserts to be the Law of Nations Many things to this purpose we may find in Jo. Meursius his Danish History l. 1. 2. where the Lubeckers and the Emperour are for a free trade the Danes against it The Carthaginians we read sometimes took the Romans Prisoners who had carried such Warlike Provisions to their Enemies but yet upon demand they set them at liberty But Demetrius being possest of Attica and having strictly begirt Athens both by Sea and Land taking a Ship that was attempting to relieve it being now ready to yield hanged the Master of the Ship together with the Pylot whereby others being deterred from the like attempt the City was yielded unto him as Plutarch relates in the life of Demetrius Not much unlike unto this was that which the same Plutarch in his Mithridatick War testifies of Pompey That he placed Guards upon the Bosphorus so that if any Merchants sailed through it they were if taken put to death VI. Whether fraud in War be lawful As to the manner of prosecuting War it is generally granted That Force and Terrour are the most proper ways The Question is Whether deceit be lawful Both Homer and Pindar were of opinion that an Enemy might be annoyed any way by Fraud or Force plainly or secretly clamve palamve So Virgil Force or Deceit who in a Foe disputes No man was more famous for wisdom than Solon yet he made use of both Lib. 15. So did Fabius Maximus and is highly commended for it by Silius For stratagems of War none so celebrated as Vlysses amongst the Grecians from whence Lucian makes this conclusion Lucian Phil. Xenoph. de Cyri Inst lib. 1. Thucyd. lib. 5. Plut. Agesilaus that Deceit in War is praise-worthy There is nothing so profitable in War as Fraud saith Xenophon Bracidas in Thucydides gives the greatest Honour unto him that overcomes his Enemy by craft and subtilty Hostes decipere justum licitum To over-reach an Enemy saith Agesilaus in Plutarch is both just and lawful So Polybius He that can circumvent his Enemy by wiles and stratagems deserves more Honour than he that overcomes him by plain force And from him Silius brings in Corvinus speaking thus Bellandum est astu levior laus in Duce dextra 'T is fraud not force commends a Captain most So also thought the severe Spartans as Plutarch notes in the life of Marcellus and therefore they offered more solemn Sacrifices to the Gods for a Victory obtained by craft and policy than for that which was gained by mere force And herein it was that the same Plutarch commends Lysander because he used more craft than courage in destroying his Enemies with whom he compares Sylla of whom this Character was given That he pieced to the Lyons skin the Foxes tail So likewise in that Encomium which he gives of Philopoemen he inserts this That being well instructed in the Cretensian Discipline he did expedite that plain and generous way of fighting by wiles and stratagems Thus Ammianus also Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum eventus Without any distinction at all between craft or courage all prosperous successes in War deserve commendation The Roman Lawyers accounted all fraud whereby an Enemy was weakened to be just and honest And if a man could by any means delude the designs of his Enemy whether it were by force or wit he was to be encouraged Neither amongst Divines doth St Augustine differ in opinion from these Historians as appears by his tenth Question on Joshua Sup Josh qu. 10 Cum justum bellum suscipitur vi aperta pugnet quis aut insidiis nihil ad justitiam interest In case the War be just saith he it matters not to the justice of its prosecution whether it be by force or policy Nay St. Chrysostome seems to give greater honour to those Generals that overcame their Enemies by subtilty than to those who conquered them by pure valour But there are opinions that seem to defend the contrary some whereof we shall rehearse anon The main hingâ— whereupon the Controversie hangs is this Whether deceit be universally Evil for theâ— it will follow that we are not to do Evil that Good may come of it or Whether Deceit be to be ranked among such things as are not universally Evil in their own Nature but that sometimes it may so happen that it may be Good VII Fraud in its negative act not unlawfull Here therefore we are to observe That some fraud consists in a negative act and some in a positive But in this question I extend the word Fraud even unto those things which consist in the negative act as Labeo did who referr'd it unto that fraud which is not Evil when a man by dissimulation preserves that which is either his own or another mans De Offic. 3. Cicero doubtless was very short in his expression when he laboured to explode simulation and dissimulation out of the world For seeing that we are not bound to reveal unto others all that we either know or would have it will follow That it is lawfull for us to dissemble some things before some men that is to hide from them somewhat of what we know Lib. cont Mendat cap. 10. or of what we desire Licet occultare veritatem prudenter sub aliqua dissimulatione The truth we may sometimes prudently conceal under some disguise saith St Augustine which we may do without being justly charged with lying For as the same Author elsewhere speaks Aliud est mentiri aliud verum occultare It is one thing to lye and another to conceal the truth As Abraham when he affirmed Sarah to be his Sister did not therein deny that she was his Wife but only concealed it So St Augustine Veritatem voluit celari Gen. 20. non mendacium dici He was indeed willing that the truth should lie undiscovered without telling a lye Now if this be lawfull in others surely it is necessary and unavoidable in Princes as Cicero testifies in many places A notable example whereof we have in the Prophet Jeremiah Jerem. 38. where the Prophet being enquired of concerning the event of the siege did at the Kings request prudently conceal it from the Nobles alledging some other cause of their Conference which notwithstanding was really true also So Abraham told Abimelech true when he said of Sarah that she was his Sister that is according to the custom of that speech among the Hebrews his near Kinswoman dissembling for that time that she was his Wife VIII Fraud in its positive acts distinguished But fraud which consists in a positive act if in things is called simulation if in words a lye Some place the difference between these two in this That words do naturally signifie the conceptions of our minds but things not
Mark Mark Ch. 6 Ver. 45 He constrained his Disciples p 390 Mark Ver. 48 Made as if he would have gone p 439 Mark Ch. 14 Ver. 21 It had been better p 366 Luke Luke Ch. 2 Ver. 1 All the world p 407 Luke Ch. 3 Ver. 14 Be content with your wages p 23 53 Luke Ch. 13 Ver. 33 A Prophet perish out of Jerusalem p 48 Luke Ch. 14 Ver. 23 Compel them to come in p 390 Luke Ch. 17 Ver. 3 Forgive if he repent p 371 Luke Ch. 18 Ver. 7 8 Shall not God revenge p 33 Luke Ch. 22 Ver. 30 Destroy this Temple p 441 Luke Ver. 36 Buy a Sword p 33 Luke Ch. 24 Ver. 28 Made as if he would have gone p 438 John John Ch. 4 Ver. 9 Water of the woman of Samaria p 185 John Ch. 8 Ver. 7 Cast the first stone p 363 John Ch. 11 Ver. 11 Lazarus sleepeth p 440 John Ch. 33 Ver. 21 Destroy this Temple p 441 John Ch. 18 Ver. 8.9 Suffer these to go p 33 John Ver. 36 My Kingdom is not of this p 408 Acts. Acts Ch. 10 Ver. 2 Cornelius p 8 Acts Ch. 13 Ver. 2 Sergius Paulus p 20 Acts Ch. 16 Ver. 3 Paul circumciseth Timothy and why p 439 Acts Ch. 17 Ver. 4 Pious Grecians p 8 Acts Ch. 25 Ver. 11 I refuse not to dye p 21 Acts Ch. 26 King Agrippa p 18 Acts Ch. 28 Ver. 18 They found no cause of death in me p 20 Romans Rom. Ch. 2 Ver. 14 By nature the things of the Law p 9 Rom. Ch. 3 Ver. 27 The Law of works p 17 Rom. Ch. 5 Ver. 12 Judge those that are without p 408 Rom. Ch. 7 Ver. 12 The Law is holy and just p 10 Rom. Ver. 14 Spiritual Law p 17 18 Rom. Ch. 10 Ver. 5 The Law leadeth unto Christ p 10 Rom. Ch. 12 Ver. 19 Avenge not your selves p 31 33 Rom. Ch. 13 Ver. 1 Let every Soul p 18 24 59 Rom. Ver. 2 Subject not resist p 55 Rom. Ver. 4 For Conscience sake p 33 Rom. Ver. 5 He is the Minister of God c. ib. Rom. Ver. 6 Tribute p 20 Rom. Ch. 14 Ver. 23 Whatsoever is not of Faith is sin p 411 1 Corinthians 1 Cor. Ch. 4. Ver. 6 p 439 1 Cor. Ver. 4 5 6 7 Christians not to go to Law p 21 1 Cor. Ch. 6 Ver. 17 All things are lawful p 456 1 Cor. Ver. 10 Who without repentance p 49 1 Cor. Ch. 7 Ver. 21 Servants be content p 407 1 Cor. Ver. 25 No Commandment from the Lord. p 109 1 Cor. Ver. 36 Virgins not to chuse for themselves p 107 1 Cor. Ch. 11 Ver. 14 Men not to wear long hair p 165 2 Corinthians 2 Cor. Ch. 2 Ver. 20 Yea and Amen p 174 2 Cor. Ch. 6 Ver. 14 What fellowship hath Christ with Belial p 186 2 Cor. Ch. 10 Ver. 34 The Weapons of our Warfare p 24 2 Cor. Ch. 12 Ver. 14 But Parents for their children p 124 Galatians Gal. Ch. 3 Ver. 25 The Law is our guide p 10 Gal. Ch. 4 Ver. 1 The Pupil during non-age p 89 Gal. Ch. 6 Ver. 5 Servants not to fly p 116 Ephesians Eph. Ch. 2 Ver. 3 By nature children of wrath p 165 Eph. Ver. 14 The Partition wall p 9 20 Eph. Ch. 6 Ver. 12 Wrestle not against flesh p 24 Philippians Phil. Ch. 4 Ver. 8 All honesty and vertue p 21 Colossians Colos Ch. 3 Ver. 22 Servants to please their Masters p 117 1 Thessalonians 1 Thess Ch. 1 Ver. 15 Equally yoked with unbelievers p 186 1 Timothy 1 Tim. Ch. 2 Ver. 1 2 3 Prayer for Kings p 17 1 Tim. Ch. 5 Ver. 3 17 To honour is to do good p 170 Titus Tit. Ch. 2 Ver. 9 Servants not to fly from their Masters p 116 117 Hebrews Heb. Ch. 4 Ver. 17 By which it is impossible that God should lye p 168 Heb. Ch. 7 Ver. 4 The Tenth of the spoyl p 468 Heb. Ver. 16 The Law of a carnal Commandment p 17 Heb. Ver. 19 The Law imperfect p 10 Heb. Ch. 8 Ver. 7 Had the first Covenant been blameless ibid. Heb. Ch. 11 Ver. 6 Religion an access unto God p 388 Heb. Ver. 34 By Faith p 13 James James Ch. 4 Ver. 1 Whence cometh War p 24 James Ch. 5 Ver. 12 Above all things swear not p 174 1 Peter 1 Pet. Ch. 2 Ver. 1 To Kings as supreme to Magistrates as subordinate p 58 59 1 Pet. Ver. 17 18 Honour the King servants be subject p 57 1 John 1 John Ch. 2 Ver. 16 The lust of the flesh of the eyes p 379 1 John Ch. 3 Ver. 16 Lay down our lives for our brethren p 34 1 John Ch. 5 Ver. 16 Sin unto death p 366 THE EPISTLE TO THE READER THE Author of this Translation was by Profession a Divine Eminent for Learning and well skill'd in the Civil Laws He was a great Admirer of the Works of Hugo Grotius anâ— valued him particularly upon this Treatise of the Rights of War and Peace wherein finding matter fit for a general communication he thought it well worth his time to Translate It was the Labour or rather Pastime of the last Seven Years of his Life to perfect it which he intended to Print during his Life And so we found it in his Study after his death And although it added nothing to the value of his Estate yet we to whom he committed the care of all the rest thought it our duty to make this Publick believing it would prove a more durable Monument to preserve his Memory than any other we could raise unto him Whilest it was in the Original it was a Jewel but hid from Vulgar Capacities it is no less a Jewel now it is made intelligible to every Capacity We shall not enlarge this Epistle in Praise either of the Work or the Author the Translation being sufficient for both if thou wilt take the pains to Read it John Nelham Thomas Whitfield Nov. 1681. Hugh Grotius OF THE RIGHTS OF PEACE WAR BOOK I. CHAP. I. What War is And what Right is I. The order of the whole Treatise II. The Definition of War and the original of the word Bellum III. Right as it is Attributed to Action defined and divided into that which concerns Governours and that which concerns Equals IV. Right taken for a Quality divided into Faculty and Aptitude or fitness V. Faculty strictly taken divided into Power Dominion and Credit VI. Another division of Faculty into that which is vulgar and that which is High and Eminent VII Aptitude what VIII Of Expletive and Attributive Justice not rightly distinguished by Geometrical and Arithmetical proportions nor in that this is conversant about things common that about things private IX Right as taken for a Law how defin'd and divided into Natural and Voluntary X. The Law of Nature defin'd divided and distinguisht from such as are not properly so called XI That Natural Instinct either common with other living Creatures or
reis It is the duty of a Priest to interceed for the guilty saith Aug. And there is a right introduced by Custom That they that flee to the Altar for Sanctuary are not to be delivered up until faith be given for the saving of their lives and that such as were for misdemeanors delivered to Prison should at Easter be freely released but he that throughly perpends these and such like Customs shall find That they proceed rather from minds full fraught with Christian Charity which watcheth all opportunities and occasions to do good than from minds quarrelling at the equity of Capital punishments whence it was that the priviledges of those times and places yea and the very intercessions themselves were moderated with some exceptions as we may learn by Cassiodore But here some will object against us the 12th Canon of the Council of Nice Lib. 11. c. 40. 12 Can. of Nicen Council which sounds to this sence If any being by the grace of God called shall first express their faith by deserting the War and afterwards returning to their vomit shall by money or favor seek to be re-admitted into the War these after the three years allowed them to hear the word shall remain among the Penitentials for ten years But in this case a strict observation must be taken how such persons stand affected and what fruits of Repentance they bring forth for whosoever among them shall shew forth their sincere conversion by fear by tears by Patience and good works without dissimulation these fulfilling their three years of hearing shall at length communicate in prayers and afterwards it shall be lawful for the Bishop to deal more tenderly with them But if any of them shall bear it but indifferently and shall think that their very entrance into the Church is sufficient these shall fulfil their whole time Whereunto I answer that by the time of 13 years Penance we may collect That the sin was neither small nor dubious for so great a punishment must needs be inflicted for some Crimes that were both to God abominable and to all good men scandalous which without question was Idolatry For the words preceeding in the elventh Canon do manifestly referr us to the times of Licinius which gives a very great light to the understanding of the sense of this Canon This Licinius as Eusebius relates in his War against Constantine Hist Eccl. â— 10. c. 8. first turned all Christians out of their houses and made sale of their goods then drew out all the Christian Souldiers and Officers both out of his Armies and Cities from the rest and then commanded That unless they would of their own accord sacrifice to Devils they should all of them be cashiered from their Offices Which fact of his was afterwards imitated by Julian whereupon many renounced their commands and among them one Victricius so did 1104 more in Armenia under Dioclesian concerning whom there is honourable mention made in our Martyrologies and so in Aegypt did Menna and Hesychius So also in the times of Liciuius did many renounce their Commands amongst whom was Arsacius mentioned among the Confessors and one Auxentius afterwards made Bishop of Mopsuestia Now they that out of tenderness of Conscience had formerly renounced their Commands had no possible means to be re-admitted under Licinius but by a publick Abjuration of the Christian Faith wherefore as they that were so admitted committed much the greater sin being against knowledge and Consciâ—â—ce so they deserved a much greater punishment than those mentiâ—â—ed in the foregoing words of the Canon namely that without any danger either of life or goods had renounced their Christianity But to interpret this Canon so generally as if it comprehended all manner of going to War is infinitely against reason For the same Historian testifies That many of them that under Licinius had laid down their Arms and whilst Licinius Reigned did never reassume them because they would not abjure their faith in Christ being by Constantine left to their own choice were upon their request re-admitted There are likewise that urge against us the Epistle of Pope Leo where it is said to be against the Ecclesiastical Canons to return into a Secular War after the Act of Repentance But here we must understand That from Penitentiaries as well as from Priests and Monks there was required a more strict and austere course of life than what was required from other Christians That they might be as great examples to others of Contrition and Humiliation as they had been before of prevarication For as Leo well observes Illicitorum veniam postulantem oportet etiam multis licitis abstinere It is but just that he that begs pardon for his unlawful acts should abstain from some things otherwise lawful So in an Epistle wrote by some Bishops to King Lewis we read Quilibet tanto à se licita debet abscindere quantò se meminit illicita perpetrasse Every man ought so far to abridge himself of things lawful by how much he remembreth that he hath committed some things unlawful So in those ancient Customs of the Church which to gain the greater reverence are commended unto us under the name of the Apostles Canons It is decreed that no Bishop Priest or Deacon should addict himself to the War so as to retain the dignity of both Functions both Civil and Sacerdotal But leaving unto Caesar the things that are Caesars they should give unto God the things that are Gods Whereby it appears that they who were not thought worthy to be admitted to Ecclesiastical dignities were not interdicted those that were Military with this also That none who after Baptism had obtained any Office Civil or Military could be admitted into the Clergy As may also be collected from the several Epistles of Syncius Innocentius and from the Toletan Council For Clergy men were not chosen out of any sort of Christians but out of such as were likely to be exemplary unto others in austerity of life and manners Besides upon Military Officers as also upon some Civil Magistrates there lies a perpetual obligation But such as put themselves into Holy Orders ought not to be entangled with any other care nor diverted by any other daily Labour For which cause it was provided by the 6th Canon That no Bishop Priest or Deacon should take upon them any secular imployment nor thrust themselves into any publiclk Office And by the 6th Canon of the African Council Can. Apost 6.8 Vid Ep. Hier. ad nepot They were forbidden to be Sollicitors of other mens affairs or to defend other mens causes But that which gives the greatest reputation to our opinion is the judgement of the Church which we have set down in the third Canon of the first Council of Arles which was held under Constantine The words sound thus Concerning those that cast away their Arms in the time of peace it pleaseth the Synod that they should be debared from the Communion
such wars publick For to the legitimating of such a War there must go as well the judgment of the Supreme Authority as other Rites and Ceremonies which the Law of Nations have made necessary Neither doth it at all stagger me that even in such wars the goods of such as make resistance are lawful prize and given to encourage the Soldiers for this doth not so peculiarly belong to a solemn war but that the same may be done in any other No Inferior Magistrate can make a Solemn War without special warrant Besides It frequently happens that in Empires of large extent the Lieutenants of Provinces are impowered by their Prince to begin a War which if so then it is all one as if the Supreme Magistrate had immediately done it Quod faciendi jus quis alii dat ejus ipse auctor censetur Look What right any man gives to another to do that he himself is reputed the Author of But that which admits of a larger dispute is Whether in case no such power be given the subordinate Magistrate by conjecturing at the will of his Prince may make War But this I cannot admit of for it sufficeth not to foresee what the will of the Prince would be in case he were consulted withal but we are to consider what a Prince would have a Magistrate to do without advising with him in case the matter be important and will admit of time enough for a serious debate if a general Law were to be made thereupon For though the reason that moves a Princes will being particularly inspected may in some particular fact cease yet the reason universally taken ceaseth not which is That all dangers should be timely prevented which could not possibly be if every inferiour Magistrate should assume unto himself the Right of making War On. Manlius was not therefore unjustly accused by his Lieutenants Liv. 48. that without order of the people of Rome he had made war against the Gallo-Graecians For although there were certain Legions of the Gauls in Antiochus his Army yet having concluded a League with Antiochus whether that injury were to have been revenged on the Gallo-Graecians was not in the choice of Cn. Manlius but of the people of Rome Cato's opinion was That Caesar should be delivered up to the Germans for making a War against them without order But as I believe not so much regarding the equity of the thing as indeed to free the City of the fear they had of so potent a Master for the Germans had given assistance to the Gauls being then enemies to the Romans and therefore had no reason to complain of any wrong done them in case that war with the Romans against the Gauls were just But Caesar should have been contented to have beaten the Germans out of Gallia which was the Province allotted to him and not have prosecuted the War into Germany without first consulting the people of Rome especially considering that there was no danger then imminent The Germans therefore could have no right to demand Caesar considering that they had given the Romans just cause to make War upon them but the Romans had just cause to punish Caesar for transgressing his Commission as the Carthaginian Embassador told the Romans plainly in the very like case I do not think it fit for you saith he to enquire whether Saguntum were besieged by the publick Edict of the City of Carthage or by the private Authority of our General but whether it were done justly or unjustly Liv. l. 31. For it concerns us only to call our own Subject to an account by whose order he did it The only dispute between us and you is Whether it might be done without breach of our League with you or not Cicero defends the fact both of Octavius and of Decimus Brutus who upon their own private judgments made war upon Anthony But although it had been as clear as the Sun that Anthony had deserved it yet should they have consulted the Senate and the people of Rome before they had begun it For although it were granted that the affront given did manifestly deserve an hostile invasion yet ought they to have expected the judgment of the Senate and People of Rome whether it had not been more expedient for the Common-wealth Though a just cause of War be given yet should it be left to the Superiors to judge whether it were safer at that time to have dissembled or to have revenged it Historians not always to be approved at that time to have dissembled it than to have revenged it to have treated with him about Articles of Peace than to have rush'd presently into Arms For no man ought to be compelled to pursue his own Right when it cannot be done without fear of a greater loss Besides Suppose that Anthony had been declared an enemy yet ought the Senate and People of Rome to have had their free choice under whose conduct that War should he carried on Thus the Rhodians answered Cassius demanding Agdes of them according to their League That they were ready to send them if the Senate should command them By this and the like examples for many such we shall meet with we may learn not to approve of every thing that Historians though of never so good fame seem to commend unto us For sometimes they are awed by fear sometimes byassed by affection sitting their Stories to their own occasions wherefore in such cases we should endeavour to be guided by our own uncorrupted Judgments and not rashly to make those Actions our Precedents which deserve rather to be excused than applauded whereby we may be drawn into pernicious errors Now whereas it hath been said That a publick War cannot justly be undertaken without the Authority of the Supreme Magistrate it will be necessary for the better understanding as well of this Question and of that of a Solemn War as of divers others to enquire what that Supreme Power is and in whom it rests And the rather because the Learned of this Age do not so well determine it for whilst each of them pursues this Argument rather according to present use and custom than according to truth they have rendred that which of it self was not very easie much more dark and obscure than it was before VI. The Civil Power what That Moral Power whereby Common-wealths are governed which Thucydides calls the Civil Power he describes by three things where he calls a City that is truly so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is 1. That it should have a power to make or abolish Laws 2. That it should have a power to pass Judgments And 3. To create Magistrates or which the word will likewise bear to raise Taxes for every Common-wealth ought to have a Moral Power in these things Pol. l. 4. Aristotle divides the administration of this power into three parts The first is The consultation about things common as about Peace War Leagues to be either made
he refers to Optimacy as that of the Consuls which he refers to Monarchy were both of them subject to the power of the people Now the self same may be said in answer to all other the Opinions of those that write of Politicks who haply think it more agreeable to their purpose to gaze on the extern face and daily administration of the Soveraignty than unto the very Right of it it self XX. True examples Much more pertinent to the matter is that of Aristotle who saith That between a full and absolute Monarchy and that like unto the Laconian being but a meer Principality there are some of a Mixt kind whereof we have an example as I conceive in the Isâ—aelitish Kings who doubtless in most things governed by a full power Mixt Governments For such a King the people required as their Neighbour Nations had Supposing as Josephus testifies That if they were governed like unto their neighbours they should suffer no Inconveniencies not considering that all the Eastern Nations except themselves were under a Slavish Government So Atossa in Aeschylus speaking to the Persians of their King saith That he is not accountable to the City for what he did That of Virgil is well known Nor Aegypt nor vast Lydia Nor Medes nor Parthians thus their Kings obey Livy gives this Character of the Syrians and all the Asian people That they were a kind of men born to be Slaves Not much unlike is that of Apollonius in Philostratus The Assyrians and Medes do adore their Kings nor that of Aristotle Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy And to the same sense is that Civilis Batavus to the Gauls in Tacitus The Syrians and Asians might well serve Hist l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs Not but that there were even at that time Kings also both in Germany and France but as the same Tacitus there observes All the Asian Kings Absolute They were such as governed for the most part in a Precarious way or as I said before more by a Perswasive than by a Coercive Power We observ'd before that the whole body of the people of Israel was under their King And Samuel describing the Government of Kings sufficiently proves That against the Injuries done by them there remained no power at all in the people either to resist or revenge Which the Ancients did rightly gather from those words of King David Tibi soli peccavi Vnto thee only have I sinned because as St. Hierom upon that place glosseth David being a King stood in fear of none but God as having no other Judge but him So likewise St. Ambrose David was a King and so subject to no Laws For Kings are Free from those shackles wherewith their Subjects crimes do entangle them They Fear no punishments being secured by the power of the Empire To Man therefore he sinned not because to him he was not accountable for his Actions Apposite to this is that of Vitiges in Cassiodore Causa regiae potestatis supernis est applicanda judiciis quandoquidem illa coelo petita est ita soli coelo debet Innocentiam The cause of a King is to be referred to Gods Tribunal for from whence he derives his power to him only he owes his Innocence And in cases of such oppressions God himself prescribes the only Remedy that the people can have against their Kings namely Prayers and Tears And ye shall cry out in that day because of the King whom ye have chosen 1 Sam. 8.18 He doth not encourage them to Rebel nor doth he prescribe any Legal way of proceeding against them only they may cry unto the Lord and if he heard them not they must suffer with patience Nor doth Samuel insinuate this to the Jews as if it were nudum factum that is That Kings abusing their power would do so but as if it were Jus Regium a Right proper to Kingly Government to do so The Jews themselves grant that if their Kings did transgress those Laws which Moses prescribed unto them they were to be beaten with Rods. But this was no reproach unto them neither was it by compulsion but by a voluntary susception as a sign of their penitence Nor was it done by any publick Officer but as he imposed it upon himself freely so he chose whom he pleased to do it and prescribed both the manner and measure of his own punishment But from all Coercive punishment their Kings were so free that even that Law of Excalciation Deut. 25.9 because it was not without some reproach was not in force against them Yet notwithstanding all this there were some Cases whereof their Kings had no Right at all to judge but they were reserved to the Great Sanhedrim or Council of the 70. Elders which being Instituted by Moses at Gods special Command continued by a perpetual supply of Election until the dayes of Herod For which cause Deut. 1.17 Pâ—al 82.1 6. they are by Moses and David frequently called Gods and their Judgement Gods Judgement And those Judges are likewise said to judge not for man but for God 2 Chron. 19.6 8. Nay there is a plain distinction made between the things of God and the things of the King 2 Chron. 19.11 where by the matters of the Lord as the most Learned among the Jews do interpret it are meant the Administring of Judgement according to the Laws of God That the Kings of Judah did by themselves sometimes inflict Capital punishments I cannot deny wherein Maimonides prefers those Kings before the Kings of Israel which is sufficiently cleared by many examples both in Holy Writ and also in other Hebrew Authors But yet the Cognizance of some Causes was not permitted unto them as that of the Tribes that of the High Priests that of a Prophet For it cannot be saith our Saviour that a Prophet perish out of Jerusalem Luke 13.33 And this is evident by the story of Jeremy whom when the Princes demanded to death the King answered them Behold he is in your power for against you the King can do nothing Jer. 38.5 Jer. 38.5 Yea and in another place he that was condemned by the Sanhedrim could not be released by the King himself And therefore Hircanus Jos Ant. l. 14. c. 17. In Criminal Cases the King of Macedon's power availed nothing Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sentence against Herod advised him by Flight to secure himself In Macedonia they that derâ—ved their Pedegree from Caranus as Calisthenes in Arianus reports obtained the Government not by Force but by Law Now the Macedonians though they were accustomed to Regal Government yet had a greater smack of liberty than other Nations For it was not in the power of the King himself to take away the life of any Citizen It was the Antient custome of the Macedonians in criminal
and not to declare that the other is not free By superiour we understand not in power for he had said before that a free Nation should not be subject to the power of another but in Authority and Dignity which the words following by a very fit Simile do clearly illustrate Some Nations are equal in liberty though not in dignity with others For as we know our Clients to be free though neither in Dignity nor in Authority nor in all Right our equals so they that are obliged faithfully to uphold our Majesty are notwithstanding to be understood our equals in liberty Clients are free though under the defence of their Patrons or Advocates so is an Inferiour people free though in League with a people superiour unto them in dignity For they may be under their protection though not under their jurisdiction as Sylla speaks in Appian An example we have in the Dilimnites Ap. Mithridat who as Agathias tells us were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Free to live by their own Lawâ— though they served the Persian in his Wars This was the design of the Empress Irene so to divide the Empire among the Sons of her Husband that the younger Sons should be Inferiour to the Eldest in dignity but otherwise they should be Independent and Absolute in Power De Off. l. 2. Cicero speaking of that Golden Age of the Roman Empire saith Patrocinium Sociorum penes eos esse non Imperium The Romans gave protection to their Friends and Allies but claimed no dominion over them Liv. l. 26. With whom agrees that of Scipio Africanus The People of Rome had rather oblige their Neighbours unto them by Courtesies than by Fear and to win foreign Nations unto them by Faith and Friendship than to subject them to an ungrateful bondage And what Strabo reports of the Lacedaemonians after the arrival of the Romans in Greece saying They enjoyed their own Freedom contributing nothing unto the Romans but the mutual offices of love and friendship As private Protection takes not away personal Liberty Protection so neither doth publick take away Civil which without Soveraign Power cannot consist And therefore Livy wisely opposeth to be under protection unto to be under Jurisdiction Augustus Caesar as Josephus relates threatned Syllaeus King of Arabia that if he abstained not from injuring his neighbours he would quickly make him of a Friend a Subject which was the condition of the Kings of Armenia who being under the Roman â—urisdiction retained only the Title of Kings but not the Power As did also the Kings of Cyprus and some others though in name Kings yet were they Subjects to the Persian Monarchy as Diodorus calls them But here it may be objected what Proculus adds Lib. 16. Four kinds of differences usually arise between Confederates But some who belong to our Confederate Cities are with us found guilty whom being condemned we may punish But that we may understand these words we must know that there are four kinds of differences that usually arise among Confederates As in the first place If the Subjects of the King or State under protection are said to have done any thing against the League Secondly If the King or States themselves are accused Thirdly If the Associates that are under the protection of the same King do quarrel one with another Lastly If Subjects complain of Injuries done them by those under whose Jurisdiction they are If the Controversies be of the first kind the King or State are obliged either to punish or to deliver up the Offender to the person injured And this ought to be done not only between unequal Confederates but between equals even between such as are not linked together by any League as shall be shewed anon Nay farther He is obliged to endeavour that satisfaction be made to the injured person which in Rome was called the Recuperators office For the Law saith Aelius Gallus in Festus doth determine between King and People Nations and Foreign Cities how things by the Recuperator may be restored and how they may be received and how private mens cases may be prosecuted in each Nation For one of the Confederates can have no right directly to apprehend or to punish the Subjects of the other Confederate and therefore Decius Magius a Campane being apprehended and bound by Hannibal and so conveyed to Cyrene and from thence sent to Alexandria pleaded that he was bound by Hannibal contrary to the Articles of the League whereupon he was presently set at liberty As to the second kind of Controversies One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League and in case of refusal to punish him but neither is this peculiar to a League that is unequal but may be done in one that is equal For it is enough to justifie any man for seeking a revenge against him that hath wronged him that he is not subject unto him as shall be proved anon wherefore this is also in force even among such people as are not confederated The third sort of Controversies are amongst such as are equally confederated and these are usually referred to a Dyet or Convention of the States associated yet not therein concerned For so the Greeks the Latins and the Germans were wont to do or otherwise referred to Arbiters or even to the Prince of the League as to a common Arbiter So in an unequal League it is usually agreed that the things in controversie shall be discust in that Nation which is superior in the League wherefore neither doth this argue a superiority in power for even Kings themselves refuse not to have their own causes sometimes tryed before such Judges as even themselves have constituted But of the last kind of Controversies Associates have no right at all to judge and therefore when Herod did vehemently accuse his two Sons before Augustus Caesar for conspiring against his life they took it as a favour he had done them Jos Ant. lib. 16. c. 7 8. Poteras de nobis Supplicium sumere tuo jure tum qua pater turn qua Rex Thou mightest have inflicted what punishment upon us thou wouldst by thine own Right both as a Father and as a King And when Hannibal was accused at Rome by some Carthaginians for stirring up Sedition amongst the Citizens Val. Max. lib. 4. c. 1. Pol. lib. 1. c. 9. Scipio told the Senate That it did not become them to intermeddle with that which properly belonged to the City of Carthage And herein it is that Aristotle puts a difference between a Society and a City for it concerns confederate Societies to take care that no injuries be committed against them but not that the Citizens of any one of the Confederates do not injure one another But here again it may be objected That in unequal Leagues he that is superior in the League is sometimes said to command and he that is inferior to obey
but neither should this move us for this is when the things in controversie concern either the common good of both parties confederate or the private profit of him that is superior in that League As to the things of common concernment Dan. 11.22 the Assembly not sitting He that was the Prince of the League though it were an equal League did usually command his Associates as Agamemnon in the Trojan Expedition did the Graecian Princes and as afterwards the Lacedemonians did the Graecians and after them the Athenians Thucydides in that Oration made by the Corinthians saith It very well becomes the Prince of the League in private matters to deal equally but in publick to be more than ordinarily sollicitous Isocrates commending that excellent conduct of the ancient Athenians in the managing of their social Wars saith That they took care for all without intrenching upon the liberty of any And in another place he allows them to Command but not to Domineer It is well worth our observation that what the Latins express by the word Imperare to command the Greeks more modestly express by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to dispose or set in order The Athenians to whom the conduct of the War against the Persians was committed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Thucydides did order which City should contribute Money and which Ships And they that were sent from Rome into Greece Plinii ep lib. 8. c. 24. are said to be sent to give orders for the well governing of the free Cities Now if he that is the principal party in an equal League do thus it is not to be wondred at if he that in an unequal League is superior in honour and dignity do the same For the word Imperium that is Empire taken in this sence as it signifies only an Ordinance and Appointment equally conducing to the common good doth not at all imply the loss of the others liberty Livy l. 37. The Rhodians in their Oration to the Roman Senate thus bespake them The Gracians were wont to defend their Empire with their own forces But their Empire where now it is they wish that it may remain for ever They are now well contented to defend their liberties with your Arms Lib. 15. being no longer able to do it with their own So Diodorus tells us that after the taking of the Cadmean Fort by the Thebans many of the Graecian Cities met and agreed among themselves That every City in Greece should enjoy its own freedom yet the conduct of the War should be given to the Athenians And yet Dion Prusaeensis speaking of those very Athenians in the times of Philip of Macedon saith That having at that time lost their command in the War they retained only their own liberty So those people which Caesar reckoned to be under the command of the Suevians he by and by calls his Confederates But in such things as appertain to his own particular profit the request of him that is Superior in the League are usually taken for Commands not that they are so indeed but that they are in respect of their usual effects equivalent to Commands for he needs no force who knows himself to be feared Armatae sunt Regum praeces The Requests of Kings have the same power as Commands And a denyal how just soever shall be by them as ill digested as an injury It was never heard of saith Livy before Caius Posthumius that any Consul was either chargeable or burdensome to our Associates in any thing and therefore were our Magistrates supplyed abundantly with Mules Pavilions and all other Instruments of War that so they might not require them from our Associates In the mean time it sometimes so falls out The weaker Associates sometimes reduced unto subjection That if he that is superior in the League be much more potent than the rest of the Confederates he may by degrees at length usurp the Soveraignty over them especially if the League be perpetual and that he hath thereby a right to place Garrisons in any of their strong Towns as the Athenians sometimes did when they suffered themselves to be appealed unto from their Associates Hal. l. 6. Livy l. 34. which by the Lacedemonians was never done wherefore Isocrates equals the Government that the Athenians exercised in those days over their Associates with that of Kings and absolute Princes So the Latines in Livy complain against the Romans that under the specious Title of being Associates in War they were reduced into a mere Subjection which Society in Arms Plutarch in the Life of Aratus calls a Gentle Slavery Hist 4. So Festus Rufus in Tacitus concerning the Rhodians At first they lived in great freedom till afterwards the Romans gently urging them they were brought by little and little into an habit of Subjection So the Aetolians likewise complained That they had nothing left them but the bare shadow and empty name of Liberty So likewise afterwards the Achaians complain That they had indeed a League in appearance but were at length brought into a Precarious Servitude The like complaint Civilis Batavus in Tacitus makes against the same Romans That they used them not as formerly like Companions but usurped and insulted over them as mere Slaves And in another place they falsely called that peace which was indeed but a miserable Slavery Thus Eumenes also in Livy concerning the Confederates of the Rhodians that they were their Associates in Name but their Vassals indeed Thus also Magnetes in Polybius saith That Demetrias was in shew free but in effect all things were done there at the will of the Romans The Thessalians likewise were in appearance free but indeed under the dominion of the Macedonians as the same Polybius testifies Now when these things are done and so done as by patient endurance they may by mistake be said to be rightly done whereof we shall elsewhere discourse more fully then either of Companions they are made Subjects or certainly there must be a partition of the Supremacy which as I have said before may sometimes happen XXII Of such as pay Tribute They that pay any thing either in satisfaction of wrongs past or to be protected against injuries to come are by Thucydides called tributary Associates such were the Kings of the Hebrews and of their Neighbour Nations after the time of M. Anthony free though under a certain tribute Nor do I see any cause to doubt but that they that Reigned so had Supreme Power within their respective Dominions and had a full right to punish delinquents according to their own Laws Thus M. Anthony defends King Herod being accused for murthering Aristobulus That it was neither just nor right to call a King to an account for what he doth as a King for if so he could not be a King For common equity requires that they that gave him that honour should permit him the free use of that Soveraign Power which was appendent unto it So
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
complains in the Life of Malchus †4 Vid. c. sâ—scepimus de hoâ—icid voluntario Canon de his Dist 1. After the Church of Christ began to be governed by Christian Princes she grew outwardly indeed more Splendid but inwardly less vertuous XIV Whether the Civil Law doth permit only or approve of this kind of Intersection It is questioned by some Whether the Law at least the Civil Law as it hath power of life and death in such cases wherein it suffers a private person to kill a Thief doth so far legitimate the Fact as to make it altogether blameless But this I cannot grant For in the first place The Law it self hath not the power of death over all its subjects for every offence but for such Crimes only as deserve death And very probable is the opinion of Scotus That it is not lawful to adjudge any man to death unless it be for such Crimes as the Mosaical Law punished with death with this addition only or for such Crimes as may be equally emballanced with them Neither doth the knowledge of the will of God which alone can satisfie the mind concerning this so great and weighty a matter so plainly elsewhere appear as it doth in that Law of Moses whereby the Thief is not adjudged unto death Besides the Law neither ought nor usually doth give unto any man a Right to put a Malefactor to death privately though he deserve it unless it be for some great and horrible Crime Otherwise the Authority of Magistrates and Courts of Judicature would soon dwindle to nothing Wherefore when the Law licentiates a man to kill a Thief it is to be understood that it rather tolerates than approves of the Fact and that it acquits him only of the punishment but not that it gives him a Right to do it XV. Single Combats when lawful From what hath been already said we may collect that in two cases single Combats may be undertaken by private men without sin In the first place If the Challenger shall grant his adversary a licence to sight and otherwise threatens to kill him immediately in case he refuse In the next place when a King or a Magistrate shall give licence to two Malefactors equally deserving death to try it out by Combat whether of them shall live And he that doth so doth not so rightly perform his duty as he might For it were much better if he intended to satisfie himself with the death of one only to determine which of them shall dye by Lot XVI Of Defence in a publick War What we have hitherto said concerning the Right we have to defend our Persons and Goods belongs principally to private War yet so as it ought also to be applyed to a publick some respect being had to the difference that is between them So saith Ammianus To all that are Invaded by a Foreign Power Lib. 23. Lib. 5. there is but one Law and that perpetual namely by all possible means to defend their own safety notwithstanding the force of any Custom For as Alâ—xâ—nder in Herodotus told his Souldiers He that is the Aggressor hath no colourable excuse for his Injustice But he that defends himself only gathers Courage from a good Conscience and fortifies his hopes in this that he doth not infer an injury but repel one Now in a private War this Right of killing another is but momentany and determines as soon as the matter may be brought before a Judge But in a publick War which beginneth not till Justice and Judgement cease there this Right lasts long being fomented and perpetuated by such accidents damages and wrongs as are every day renewed in the prosecution of the War Besides in a private War we have scarce any other end than our own defence But the Supream Powers have a Right not only to defend themselves but to be avenged on others whence it is likewise lawful for them not only to resist certain and present dangers but to prevent such as seem to threaten afar off Not directly for that as I have already said were Injustice but indirectly by revenging such wrongs as are already begun although not â—uâ—ly â—â—nsâ—mmaâ—e concerning which we shall have cause to speak anon XVII When only to curb the power of a Neighbour Prince unlawful Neither can we approve of that which some Authors do affirm for truth namely That by the Law of Nations it is a sufficient ground of a Just War to suppress the over-swelling Power of some ambitious Prince who if let alone may exceedingly annoy us That in our ordinary Councils of War Alb. Gent. lib. 1. c. 14. this usually comes in debate I grant But not so much under this Notion because it is Just but as it is profitable So that in case the War for other causes be Just for this cause it may prudentially be undertaken And this is all that the Authors before cited do in effect say But from a meer possibility that we may hereafter suffer wrong to conclude a present Right or a necessity of doing wrong will prove no good Inference in a Court of Equity Bal. lib. 3. de rer divis For all humane affairs are obnoxius to so many contingencies that no security can be expected in this life Against all uncertain and Ignote dangers our safety consists not in our Arms but in our Innoxious prudence co operating with the Divine Providence XVIII Defence in such as have given just cause of War unlawful Nor less unsatisfied am I with their Reasons who affirm That their Defence is Just who have given an occasion of a Just War Because say they There are very few that will be contented with such a measure of revenge as is proportionable to the Injuries they have received For this very Fear of what is to come being uncertain cannot justifie us in the defence of Injuries already done For so the malefactor may justifie his resistance of the publick Ministers of Justice by his fear that they will inflict a greater punishment upon him than his Crime deserves But he that gives just cause of offence ought in the first place to tender such satisfaction as in the judgement of unbyassed men is equivalent to the wrong done which if refused then is his defence Just 2 Kings 18.7 14. c. 19. Thus did Hezekiah who for breaking the League which his Ancestors had made with the Kings of Assyria being threatned with War confest his fault and promised to pay whatsoever the said King should impose upon him which being done when notwithstanding he was afterwards Invaded with a powerful Army trusting to the Justice of his Cause he made his defence and had the Most High God for his Protector Pontius Samnis after he had made restitution to the Romans of their Goods and delivered up the Authors of the War pleads thus with them We have I hope appeased the just wrath of Heaven against us for our breach of the League and am
Enna saith Livy was detained either by fraud or out of pure necessity For whatsoever here doth in the smallest degree decline from necessity is injury The Graecians that stood in great danger for want of Ships by the advice of Xenophon De exped Cyri lib. 5. seized such as passed by yet so that the Goods were preserved entire for the Owners and the Seamen well fed and paid The First Right therefore that since propriety was introduced pleads for exemption is this of Necessity XI In cases of innocent profit The next is That of Innocent profit What should hinder us saith Cicero †De off l. 1. De benef lib. 4. from communicating with others when we may do it without any detriment to our selves especially in those things that are profitable to those that receive them and not damagable to us that give them Seneca will not admit of this to be a courtesie to kindle a Coal at our Fire or to light a Torch or a Candle by ours Plutarch accounts it an act of impiety to cast away what we cannot eat to seal up a Fountain when we have drank our selves full to remove Land or Sea-marks which have been useful unto us For saith he in these things after that we have satisfied our selves every man hath a common Right So a River as it is a River is the propriety of those people whose the Banks are or his who hath the Soveraign Power over them in whose power it is to make Dams or Mills in it and whatsoever is bred in that River is his But that River as it is a flowing Stream remains common every man hath a Right to drink or to draw water out of it as well as he that owns it Quis vetat apposito lumen de lumine sumi Atque cavum vastas in mare servet aquas Who at his Torch light to a Torch denyes And wh'would engross the Seas vast Cavities saith Ovid who also brings in Latona thus bespeaking the Lycians Quid prohibetis Aquas usus communis aquarum Why water d' ye deny Whose use should common lye Where also he reckons water among those publick Gifts that Nature bestows upon all men alike the word Publick being improperly taken in which sence some things are said to be publick by the Law of Nations Virgil tells us the water is open and common to all as well Strangers as Natives XIII A right to travel by Land or Sea common to all Thus both Lands Rivers and such parts of the Sea as are held by any Prince or People in propriety ought to lye open and free to all such as have occasion to pass over them upon any just and lawful cause as namely either because being expelled their own they seek after some other Country that lyes waste or because they desire to traffick with some people remote from them or even because they seek to recover what is their own by a just war The reason is the same here as above because it is very probable that dominion was introduced at the first with this limitation that such things should remain in common use which might be profitable to some and not hurtful to others And therefore the first Authors of Propriety are conceived to have thus agreed it A signal example whereof we have in the History of Moses Numb 20.21 Numb â—â—â—1 who being to march through the borders of the Edomites and Amorites offers these Conditions That he would travel only through their high-ways without trespassing upon any private mans possessions if he had need of any thing that was theirs he would pay the just price of it Which being rejected was ground sufficient for that War which he made against the Amorites Whence St. Augustin thus Li. quaest 4 sup Numb c. 20. An innocent passage was denyed them which ought by the Laws of humanity to lye open and free to all who require it Whereupon St. Augustin concludes That the war made by the Israelites against the Amorites was just Hercules flew Amyntor King of the Orchomenians Apollodor because he denyed him a free passage So did the Graecians make War against Josephus because he refused to give them leave to pass through the borders of his Country Thus also do the Graecians Scholiast in Hor. Carmen in Canidiam which were under Clearchus plead We say they are travelling towards our own Country peaceably if none molest us but if any shall hinder us we will endeavour by the assistance of the Gods to force our way So likewise Agesilaus returning out of Asia when he came to Troas demanded An ut Amicum se an ut hostem transire mallent Plut. Ages Whether they desired that he should pass through their Country as a Friend or as an Enemy The like demand was made by Lysander to the Boeotians Rectis se hastis se transire vellent an inclinatis Whether they would have him to pass in a peaceful or in a warlike posture Hist l. 4. Thus do the Batavians remonstrance to the Bonnenses in Tacitus If none oppose us our march shall be innocent but if we find resistance we will force our passage with our Swords Cimon carrying Succours to the Lacedaemonians led them through the Territories of Corinth and being blamed by the Corinthians Leave to be first asked that he had not first acquainted the City with his purpose for they that knock at other mens doors say they enter not but by permission returns this answer But ye saith he have not knockt at the doors of the Cleonaeans and of the Megarenses but have broken them open Censentes omnia potere debere plus valentibus Conceiving that all places ought to lye open to the strongest But the most moderate opinion is the best Leave is first to be demanded according to that of Aristophanes Whilst toward Delphos we our Army lead First from Boeotians we free passage crav'd But if it be denyed then may our passage be justly forced by Arms Which if denyed may be forced When the Germans and the French made war one against the other for Maranus the Venetians gave free passage to them both whereof when the Germans complained they were answered that they could not hinder it but by Arms which it was not their custom to use but against their publick Enemies Agesilaus in Plutarch returning out of Asia Paruta lib. 11. and demanding free passage for his Army through Macedon was answered by the King that he would consult about it Whereunto Agesilaus replyed Consultet nos interea intrabimus Let him consult and we in the mean time will enter Neither may it be justly objected that the multitude of those that are to pass may give just cause of fear for Jus meum metis tuo non tollitur My Right is not taken away by thy fear Remedies against this fear And the rather because there are certain Remedies provided against this fear as that they shall march
to the use thereof lies Common to all Men. Which seeming Contradiction may be thus easily reconciled The Seas and Shoars how Common and how held in Propriety Neratius speaking of the Shoar as to the necessary use thereof to Mariners and to such as pass by saith That it is naturally Common but as to any benefit or profitable Improvement of it by erecting Forts or other durable Buildings so as Celsus well observes it is peculiar to the People of Rome For as Pomponius likewise informs us such Buildings could not be erected without special Licence from the Praetor either on the Shoar or in any part of the Sea which was contiguous to the Shoar and so reputed as part of it X. That the Law of Nature doth not hinder but that part of Sea closed by Land may be occupied Though these things be true yet doth it arise from Custome and Consent and not from the Law of Nature that the Sea in that sence taken as is before declared is not occupied nor by right could be So the King of Denmark having seized and confiscated some Merchants Ships of Hull for Fishing on the Coasts of Norway near Island without leave our most wise Queen Elizabeth pleaded That the best Lawyers had adjudged the Sea to be free and by the Law of Nations Common to all nor could be Interdicted by any Prince And as to Custome she answered That neither his Great Grand-father nor his Grand-Father nor his Father had ever exacted it Camd. Eliz. anno 1600. But on the contrary That his Father had granted That the English abstaining from Injuries should have freedom of Fishing without leave For Rivers also are publick we know and yet the right of Fishing in some corner or creek of the same River may properly belong to some private person Nay even of the Sea it self it is said by Paulus the Civilian That where it is the proper Right of some particular person he may have an Injunction to quiet his possession for this is now a private case for as much as it concerns the Right of Possession which properly appertains to private not publick causes where doubtless he treats of some small portion of the Sea let into some private mens ground Which we read was usually done among the Romans as by Lucullus and others And as Salust testifies by many private men in his time who had subverted many mountains and made Seas out of dry Land Whereunto Horace thus alludes Whilest Mountains into Seas are cast Fish frightned from their holds do stand agast The like is recorded by Paterculus We saith he inject huge hills of earth into the Sea and when we have made Mountains hollow we let in the Sea to fill up the Concave Pliny likewise speaking of the earth saith That it must be embowelled to let in the Sea With what great Bulwarks saith Cassiodore are the Sea banks decently Invaded How far doth the Earth encroach into the Bowels of the Sea So that as Tibullus writes Th' untam'd Seas with Mountains are immur'd That Fish from Winters storms may lye secur'd Varro writing of L. Lucullus saith That having cut through a Mountain near Naples and thereby made a passage for the Maritine Rivers into his Ponds he had so great plenty and variety of Sea Fish Vita Luculli that Neptune himself had not more Plutarch also records the same of Lucullus That having surrounded his Villages with Trenches and Channels even from the Sea and so stored them with Fish he made his Banqueting-house within the Sea it self Lib. 9. c. 54. So doth Pliny That having at a vast charge dugg through a Mountain and let in the Sea he was by Pompey the Great called Xerxem togatum The very like doth Valerius Maximus record of C. Sergius Orata Who by letting in the Sea at Spring-tides and intercepting its going out made Seas peculiar to himself But the very same we find afterwards produced by the Emperour Leo in opposition to the opinions of the Ancient Lawyers about the passages of the Thracian Bosphorus namely That they might be inclosed within certain bounds and possest as a private estate Now if any part of the Sea may be annexed to a private mans estate as being environed by it and in respect of the Land so small in proportion that it may be deemed as a part of it and that the Law of Nature did not oppose it why may not that part of the Sea which is contiguous to the Shoar be reckoned as a part of his or their dominions whose the Shoars are Especially whilest that part of the Sea being compared with the Territory is no greater than a small creek of the Sea compared with the greatness of a private mans Land wherewith it is encompassed Neither will it much alter the case to say That those Seas are not on all sides surrounded as may be easily illustrated by the example of a River that is not every where begirt with Banks or by the example of the Sea that for conveniency of Importation is let into some Town adjoyning to the Shoar But there are many things indulged unto us by nature which the Law of Nations by common consent do prohibite wherefore where this Law is in force and not by common consent repealed no one part of the Sea though for the most part surrounded by the Shoar And questionless though the Seas be naturally free yet as to any profit that may arise from that part of the Sea that is contiguous to the Shoar as by Fishing or otherwise it may by custome or consent be possest by the Prince whose the Territories are Whether strangers may fish in those parts of the Sea that joyn to the Shoar of another Prince For the distinct dominion of that part of the Sea bordering on the Territorie of any Prince is best seen by the Taxes and Tributes which those Princes take of strangers for Fishing whereof we have many precedents As in Russia where the Tax for Fishing is very great insomuch that the Hollanders gave the tenth Fish Denmark takes great Tribute at Ward-house and in the Sound As also for Fishing in the North Sea and even for Navigating that Sea between the Coasts of Norway and Island as the Merchants of Hall lately found by sad experience as Sweden also did heretofore when Norway was theirs All the Princes of Italy do the like for Fishing on their respective Coasts in the Mediterranean The Earls of Orkney in Scotland took the tenth Fish for the Isle of Orcades So do the Lords of Mannors in the West of England for Pilchards Hake and Conger The States lay Impositions upon the Fish taken within the Seas and Streams of other Princes also on those taken on their own Coasts Edward the Third of England took 6 d. per Tun in his time which is now as much as 18 d. H. 7. resolved to set up the Fishing Trade in England considering that it was most proper for him
the mind as to create a Right had been inconvenient to humane Nature which cannot possibly understand them unless exprest by some outward signs whence it is that those bare internal acts are not subject to Humane Laws Not by words only But there are no signs that can so clearly demonstrate those inward acts as to render us infallible for a man may dissemble his thoughts and both mean and intend otherwise than he either speaks or by some deeds pretends to do And yet will not the nature of humane society admit that these internal acts of the mind being sufficiently exprest should have no efficacy wherefore whatsoever is so sufficiently signified shall be held for truth and be admitted of as a good plea against him that shall so express his mind which if done by words the case is plain IV. But by deeds done By deeds that is understood to be forsaken which is cast away unless it appear by some circumstance that it was so cast away only for a time and with a mind to require it again Thus a debt is said to be forgiven when the bond is delivered up to be cancel'd A man saith Paulus may renounce his inheritance not by words only but by any other indication of his will as if he who being the right owner of a thing shall knowingly contract with him that usurps it from him he may very well be judged to have released his own interest in it And why this should not take place as well amongst Kings and free people as amongst private persons no reason can be assigned The like may be said when a Prince shall give leave or command his Subject to do that which cannot with safety be done unless he be exempted from the penalty of the Law it may be presumed that he is so exempted for this ariseth not from the Civil but from that natural right which every man hath to renounce what is his own and from a natural presumption whereby every man is believed to will that which by signs he sufficiently declares In which sence that of Vlpian may rightly be understood Whatsoever is accepted in full of a Debt is a discharge where he saith It is agreeable to the Law of Nations that whatsoever a man accepts of in full of his debt is a good discharge V. And deeds not done Under things done are morally comprehended things not done being considered with due circumstances so he that is knowing and present yet is silent seems to give his consent which the Hebrew Law seems likewise to acknowledg Numb 30.5 12. that is unless by some circumstance it appear that either fear or some other accident did restrain him from speaking Things given for lost cease to be ours so is that given for lost whereof there is no hopes of recovery as a Lamb in the paws of a Lyon So if a Merchant suffer shipwrack his Goods cease to be his own though they be afterwards driven to shore yet not immediately as Vlpian notes but when he gives them for lost and useth no outward means to recover them For in case he send out and make enquiry after them or promise a reward to those that shall find and restore them the case is otherwise to be judged So he that knows his own things to be by another man detained and makes no claim unto them in a long time unless some cause do manifestly appear seems to do it to no other purpose but to shew that he is willing to renounce them And this is it that Vlpian elsewhere intends where he saith That an house possest for a long time by another and no claim made nor rent demanded for it Int. mony long forborn presum'd to be forgiven seems to be deserted by the right owner To exact Interest long since due saith that good Emperor Antoninus is hardly just for the not demanding it in so long a space makes it probable that thou wert willing to remit it and that by not so much as demanding it thy purpose was to make thy self the more beloved and honoured and thy Debtor the more thankful Something like unto this will appear in custom for even this setting aside the Civil Laws which are willing to admit it though limited to a certain time and after a certain manner may be introduced by a people that are Subjects being long tolerated by him who hath the Supreme Power But how long time is required to entitle it to the effects of a just right That silence should argue a consent two things necessary Vide infra Bo. 2. c. 22. §. 11. is not determined but left Arbitrary yet so much is required as is sufficient to signifie a consent Now that silence should be of so great force as to justifie our presumption of a Dereliction two things are requisite First That he that is silent knows that he hath a Right for him that knows it not silence cannot prejudice Secondly That his silence be free and voluntary and not occasioned by fear or any other such cause which if it appear makes our conjectures at the Will of no force VI. Of what force time without possession is to prove a Dereliction That both these therefore may be thought to concur though other conjectures may avail yet is that of time most prevalent For in the first place it is hardly possible that in a long time a man should not by some means or other arrive to the knowledg of his own Right time usually administring many occasions to the discovery of truth Now if the right owner be present much less time sufficeth to ground our conjectures than if he be absent setting aside what is determined by the Civil Laws So fear once imprinted cannot suddenly be cast off yet can it not be perpetual length of time supplying us with many occasions and remedies both by our selves and from others against fear and for providing for our own safety even by going out of his dominions whom we fear or at least by making our protestation concerning our Right or which is better by offering to refer our cause to indifferent Arbiters VII Time out of mind what it is But because that time which exceeds the memory of man is in a moral sence infinite therefore if claim be not made within such a time to any thing out of possession it is a sufficient presumption that it is forsaken unless some very strong reasons be brought to the contrary And here it is very well observed by our most prudent Lawyers That Time out of mind is not altogether the same with a Century of Years Time out of mind not the same with a Century of years though not much different from it Cambd. Eliz. an 1600. though it be true that there is not much difference between them For one hundred years is commonly reputed the term of a mans life which doth well nigh make up three Ages or Generations which the Romans seem to object against Antiochus
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be
the ancient Estate shall return from whence it descended and to their Children X. But that which was lately gained to the nearest in blood XI The Laws touching Succession are diverse XII How Succession takes place in Patrimonial Kingdoms XIII In Kingdoms Indivisible the first-born to be preferred XIV That Kingdom which by the peoples consent is hereditary if in doubt is presumed indivisible XV. The Succession not to last beyond the line of the first King XVI Natural Issue not at all concerned in it XVII The Male Issue preferr'd before the Female within the same degree XVIII Of the Males the eldest is to be preferred XIX Whether such a Kingdom be part of an Inheritance XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began whether Absolute XXI Or held of another in Fee XXII Of Lineal Suceession to the next in blood whether Males or Females and how the Right is thereby transmitted XXIII Of Lineal Succession to the Male Issue only called Agnatical Succession XXIV Of that Succession which always respects the nearest to the first King only XXV Whether a Son may be exheredated so as to bar his Succession to the Crown XXVI Whether a King may for himself and his Children renounce his Kingdom XXVII Concerning the Right of Succession the Judgement to speak properly is neither in the King nor People XXVIII A Son born before his Father was King shall be preferred before him that was postnate XXIX Vnless it be otherwise provided by some other Law XXX Whether the elder Brother deceased his Son be to be preferred before the younger Brother explained by distinction XXXI Also whether the younger Brother living be to be preferred before the Kings elder Brothers Son XXXII Whether the Kings Brothers Son be to be preferred before the Kings Vncle XXXIII Whether the Kings Son be to be preferred before the Kings Daughter XXXIV Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter XXXV Whether the Daughter of the eldest Son be to be preferred before the younger Son XXXVI Whether the Son of a Sister be to be preferred before the Daughter of a Brother XXXVII Whether the Daughter of an elder Brother be to be preferred before the younger Brother I. Some of the Civil Laws unjust HAving thus shewed what Right may be derived from another by his Act now we are to treat of the Right that is derived from another by Law And this is either by the Law of Nature or by the voluntary Law of Nations or from the Civil Law It were endless to treat here of the Civil Law neither are the main Controversies concerning War thereby determined and therefore we shall purposely omit it Yet is it worth our Observation to know that some of the Civil Laws are apparently unjust as that which adjudgeth goods Shipwrackt unto the Kings Coffers For to take away anothers Right and Propriety without any preceeding cause that is probable is a manifest injury Thus pleads Helen in Euripides Helen Wreckt and a Stranger came I in Such to despoil is horrid sin For what Right saith Constantine can the misfortunes of another create to a King that he should be enriched by a calamity so much to be pitied Lib. 1. C. de Naâ—f l. 12. And therefore Dion Prusaeensis in an Oration of his concerning Shipwracks crys out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Far be it O Jupiter from me to take such advantages by other mens misfortunes And yet such a Right do the Laws of Nations very unjustly give as amongst the English the Sicilians And such an ancient Law Sopater mentions to be in force in Greece Christian King of Denmark upon the abrogating of this Law complained That he lost an hundred thousand Crowns yearly Nicetas speaking of this Law calls it a Custome so barbarous as is not to be named What then was Bodines meaning to defend this Law He namely who reprehended Papinian for chusing rather to dye than to act against his own Conscience II. A man may have a Right to that which he takes from another and when Propriety or Dominion being introduced it follows by the Law of Nature That things are alienable two ways First By commutation which consists in the making up of that Right which I want whereby the ballance of Justice may be made even or Secondly By Succession Now Alienation by way of Commutation or Expletion is when for something that is or ought to be mine which I cannot receive in kind I take from him that detains it or somewhat in lieu thereof that is some other thing of equal value Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods See Book 3. ch 7. §. 6. Which saith he they might take and keep in compensation of their labour Now that Dominion may be thus transferred is easily proved from the end which in moral things is the best proof For how otherwise can I be said to receive my full Right unless I become the right owner of it Seeing that it is not the bare detention but the full power to use and dispose of it at my pleasure that makes the Scales of Justice even An ancient example of this we have in Diodorus where Hesionaeus in lieu of those things which being promised to his Daughter by Ixion but not given took away his Horses For Expletive Justice when it cannot recover what is the same endeavours to get the value of it which in a moral estimation is the same By the Civil Law no man we know can do himself Right Nay if any man shall with his own hands take away from another though but what is his due it shall be imputed unto him as Rapine and in some Countreys he shall lose his debt And although the Civil Law did not diectly forbid this yet from the very institution of publick Tribunals it may easily be concluded to be unlawful But where there are not publick Courts to appeal unto as on the Seas and in Desarts there the Law of Nature must be our guide So it should sometimes when the Laws cease but for the present that is if the debt can never be got otherwise As if the Debtor be ready to fly the Countrey before the Courts can be open in which case the Creditor may lawfully have recourse to the Law of Nature Yet so that the Judgement of the Court must afterwards be expected before the Right of Propriety can be assured as in the case of Reprizals as shall be said hereafter But yet if the Right be certain and it be also morally as certain That a man cannot by a Judge receive satisfaction for want of due proof the best opinion is That the Law concerning Judgements ceaseth and that a man may have recourse to the ancient Law of Nations III. The Estate of
Baronies that are held by Homage or Fealty to the chief Lord. This is the succession of the Kingdom of England As in the Counties of Artoise Champane Tolouse and Brittany This was the order of succession prescribed unto the Dutchy of Mantua by the Emperour Sigismund Anno 1432. and by Charles the Fifth Emperour and King of Spain to Philip the Second in his Kingdoms and Principalities But the proof of this Lineal Succession though there were no Law or Example to guide us may be taken from the order that is observed in Publick Assemblies For if in that order regard be had to lineal descents it will be a sign that the hopes conceived of the children of the deceased was by Law quickened into a Just Right so that it may well pass from the dead to the living This is that Lineal Cognatical succession wherein women and those that are born of them are not excluded but only post-pon'd in the same line So that recourse is had unto them in case the Males that are nearer or that those born from Males in an equal line should fail The ground whereof as it differs from an hereditary succession is the hopes which the people conceive of them who are nearest related to the Prince in possession and who have the justest hopes to succeed him that they have Educations answerable to their high birth and hopes such are the Children of those Parents who had they lived must have succeeded XXIII The lineal succession of the Males only Agnatical succession There is likewise another lineal succession of Males only which is called Agnatical which differs from the Cognatical in that it excludes Females and admits only of Males which from the Kingdom of France takes its rise and is therefore called the French succession Though the Kingdom of Israel seems to have been thus setled 2 Chron. 13.5 And the chief reason of this is to debar Strangers from the Crown by marrying the Kings Daughters In both these lineal successions all are admitted that are any wayes allyed though in degrees never so remote from the last possessor whilst they can derive themselves from the first King And in some places where the Agnatical Succession is deficient recourse is had to the Cognatical Nay and this latter is sometimes preferred before the former as in Aethiopia where the Kings Sisters Son did alwayes succeed him which Bede records also of the Picts where the kindred of the women were preferred to the succession The like we read of the Indians So Tacitus of the Germans That their Kings gave the greatest honour to their Sisters Son as being nearest in blood to them XXIV A succession that alwayes respects the proximity to the first King Livy lib. 29. Vand. l. 1. Other manner of successions may be introduced either by the people or at the pleasure of him who holds the Kingdom in a patrimonial right so that he may alienate it For he may so settle the succession that they that are next to himself at all times may be preferred before others as it was anciently among the Numidians where for the like cause the Unkle did succeed in the Kingdom before the Children of the last King This Custome was introduced in Africk by the Testament of Gizerick wherein amongst many other things he chargeth his Vandals That they should admit of him only into the Throne that should be at any time nâ—arest unto himself in a right Masculine line and of them still the eldest and then the next in order wherein he regarded not the present possessor but the first Acquisitor Which order whether Gizerick himself learnt from the Africans among whom it had been long observed or whether they learnt it from some of our Northern Nations is a question The like was of old in use among the happy Arabians as may be gathered out of Strabo And the later Historians report the same of Taurica Chersonesus Lib. 16. Neither is it so long since the Kings of Fesse and Morocco did the like Livy speaking of Massinissa saith That whilst he made War in Spain for the Carthaginians his Father dying the Kingdom fell according to the custome of the Numidians unto Desalces the deceased Kings Brother The same Custome is in force throughout all Mauritania as Mariana testifies and in the Kingdom of Mexico and Peru as the Histories of those parts record Now the same if in doubt is to be observed in things committed to trust if it be left to the Family And this agrees best with the Roman Laws though some Interpreters do wrest it otherwise These things premised it will be no hard matter to resolve all Controversies which do arise concerning the Right of Kingdoms which the different opinions of Lawyers have made so intricate XXV Whether the Son may be so exheredated that he shall not succeed in his Fathers Kingdom And in the first place this Question ariseth Whether a Father may exheredate his Son so that he shall not succeed in his Kingdom Where we must distinguish between Patrimonial Kingdoms which are Alienable and such as are not Alienable In the former there is no doubt but that exheredation is lawful for such Kingdoms differ nothing from other Goods and therefore in such places where by Law or Custome Exheredation is in force it is practicable even in the case of Kingdoms yea though there were no Law or Custome to warrant it yet naturally it is lawful for a Father to exclude his Son from all but bare Alimony yea and from that also if he have committed any Crime worthy of death He may if the Kingdom be Patrimonial or have been otherwise notoriously wicked and have of his own whereby otherwise to subsist Thus was Reuben punished by Jacob with the loss of his Birth-right and Adonija by David with the loss of his Kingdom For David's Kingdom was in a manner Patrimonial though not by the right of War yet by special donation from God himself Now where the Kingdom is Patrimonial the King may nominate which of his Sons he will to succeed him as the Kings of Mexico now do Nay if the eldest Son have provoked his Father by any hainous crime and there be no manifest sign that he hath forgiven him he shall be as one tacitely exheredated Otherwise in Kingdoms nor alienable But it is otherwise in Kingdoms not alienable though they be hereditary because the people are best pleased that the Kingdom shall descend in an hereditary way especially from an Intestate Much less shall it be in the power of a Father to exheredate his Son where the Kingdom is to pass in a lineal descent For there without any imitation of an Inheritance it was agreed in its first Institution That the Kingdom should by the peoples gift pass to every person of the Royal Family in such order as was then prescrib'd XXVI Whether a King may renounce his Kingdom In a Kingdom meerly hereditary he may but nâ— in a Lineal
mercy For that Divine Law that commanded them to destroy the Nations Deut. 7.4 Exod. 23.33 being compared with another charge given by God concerning them Deut. 20.10 will admit of this limitation That if they yielded upon the first summons they might be received to mercy As is clear by the Histories of Rahab who for securing the Spies was saved Jos 16.10 Of the Inhabitants of Gezer who were suffered to live among the Ephramites and to serve them Of the Gergezites of whom St. Matthew records Mat. 8.28 that there were some living even until his time Neither shall we find these ennumerated among those that were to have been extirpated as you may read Deut. 20.17 Jos 9.1 And lastly It is clear by that Act of Solomon 1 King 20.20 21 whereby he is said to have received the remainder of the Canaanites whom the Children of Israel could not destroy as his Tributaries and Bond-Servants unto that day Yea and if we examine the cause of that severe charge given unto Moses for their extirpation as it is exprest Exod. 23.33 Deut. 7.4 we shall find that in case as the Hebrew Doctors observed they would submit to the Commandments given to Noah and his Sons and pay Tribute the cause of their extirpation being taken away they might live Now why Joshua might not as well spare the Gibeonites upon their Dedition as he did Rahab and the Canaanites of Gezer upon theirs no solid Reason can be assigned And yet that the Gergezites being the Off-spring of the Inhabitants of Gezer were spared and lived as Tributaries to the Israelites till Christs time is most evident by the Sacred story The immediate cause of the destruction of all the rest of the Canaanites was not any inexorable Command given by God to Moses for that left them a possibility to live because a power to submit But the hardness of their hearts which proceeded from God as a punishment for all their great provocations Jos 11.19 20. that so he might destroy them utterly without any mercy as the Lord commanded Moses Wherefore considering that in case the Gibeonites had dealt plainly with Moses which they durst not do for fear of him and had voluntarily given themselves up as Bond-servants It is probable that he would have spared their lives under the same condition as he did the Inhabitants of Gezer Therefore Valuit juramentum The Oath was to remain inviolable Yea and the breach of this Oath three hundred years after when Saul either forgetting the Oath of his Forefathers or out of a well-meant zeal slew some of these Gibeonites cost the lives of many thousand Israelites 2 Sam. 21.6 in the three years Famine which God brought upon Israel Of this opinion was St. Ambrose who handling this Question saith Joshua did not think it safe to break the Peace with the Gibeonites because he had confirmed it by Oath Ne dum aliorum perfidiam arguit De Off. l. 3. c. 10. suam fidem solveret Lest whilest he punished others for their perfidiousness he should be found guilty of Perjury Neither did this fraud of theirs go altogether unpunished For whereas had they dealt plainly they had been admitted upon paying of Tribute only now their Corporal Slavery is at once the price of their lives and the just Punishment of their Craft and Subtilty So were the Brutiani served by the Romans Loh 10. c. 3. as Gellius relates V. The words of an Oath not to be too far extended Neither should the meaning of an Oath be wrested to any other sense than the words do usually bear Wherefore when the Children of Israel having sworn not to give their Daughters in Marriage to the Benjamites did notwithstanding suffer the Benjamites to take the Daughters of Shiloh by force and to enjoy them they were not guilty of Perjury For it is one thing to give and another not to require what is already lost Whereof St. Ambrose speaks thus This Indulgence of theirs was not without a Punishment suitable to their Intemperance whilest they were permitted only to enjoy those whom they had ravished without the solemnity of Marriage Nec hortabantur Israelitae nec prohibebant saith Joseph The Israelites did neither encourage the Benjamites nor forbid them Now the Law saith Seneca may punish him that succoureth an exile but not him that only suffers him to be relieved Not much unlike was that request which the Achaians made to the Romans who were highly displeased at some things by them done and confirmed by Oath namely That the Romans would be pleased to alter what they would but not to bind them by any Religious Vow to null those things which they had already established by Oath VI. Oaths bind not to things unlawful Secondly That an Oath be binding it is necessary that it refer to things lawful For if the thing promised upon Oath be forbidden either by the Law of Nature or by the Divine Law or interdicted by humane Laws whereof more anon it hath no power at all to oblige us That which is unlawful to be sworn is unlawful to be done being sworn and that which is unlawful for us to do is unlawful to be sworn All Oaths have a tacite exception of the higher powers and of former Oaths Now God is greater than man and therefore having first bound our selves unto him no Oath made against him or against our duty to him ought by us to be performed but repented of No Weapon formed against him shall prosper saith the Prophet Es 54. It is good counsel that Philo gives in this case Let him that goes about to do an unjust act by reason of his Oath know That he doth not thereby perform his Oath but break it For an Oath is a sacred thing which deserves our greatest care and devotion to preserve whereby we stand obliged to do such things only as are just and honest For he doth but accumulate one sin upon another who to a wicked Oath adds a dishonest action Wherefore let him that hath ensnared his own Soul by a rash Vow yet refrain from doing wickedly That God who is rich in mercy may forgive him For wilfully to contract a double guilt when we may be discharged from a single one is an incurable madness Rash Vows are ill made and sometimes worse kept Our Tongues must not bind our hands to do wickedly 1 Sam. 25. David was less sinful in breaking his Oath and sparing the life of Nabal whom he had sworn to kill than Herod was in killing the Baptist or Agamemnon in sacrificing Iphigenia for their Oaths sake Surely Oaths were never invented to be the Bonds of Iniquity Praestare fateor posse me tacitam fidem Si scelere careat interim scelus est fides My Faith perform I can I do confess If void of Sin else Faith's but Wickedness Some Promises cannot be performed saith Ambrose nor some Oaths kept without the violation of our duties to God or Man And if
that our Saviours words signifie no more than what Philo's the Jew did It is an excellent thing saith he and most agreeable to Rational men De Decal so to accustom themselves to speak truth That their bare words may carry as much authority as other mens Oaths And in another place he saith That a good mans word is as firm immutable and void of deceit as if he had confirmed it with an Oath So likewife Josephus testifies of the Esseni That whatsoever they affirmed upon their words was as true as if they had affirmed it upon their Oaths And therefore to swear was unto them superfluous And from these Esseni or from those Jews that followed them Pythagoras seems to have learnt it where he saith We must not swear by the Gods but every man sbould be so careful of his word and credit that he may be believed without an Oath It was the advice of Chrysostome If thou dost believe that he with whom thou hast to deal De stat 15. is honest and faithful urge him not to swear but if thou suspect him for a lyar urge him not to forswear The Scythians in Curtius told Alexander That it was not the custom of the Scythians Gratiam jurando sancire to purchase his favour or establish their own peace by Oaths For saith Curtius Colendo Fidem Scythae jurant The Scythians are so great admirers of truth and Fidelity that their bare words do oblige them as firmly as and their deeds confirm their promises more than their Oaths Cicero in his Oration for Roscius Comoedus tells us that look what punishments the Gods awarded to a perjured person the same they awarded to a Lyer For it was not the form of words wherein the Oath was comprehended that provoked the Gods unto vengeance but the malice and perfidiousness of the heart wherein all Treacheries and forgeries are minted It is excellent Counsel that Solon gives us That we should have so great a regard to our own honesty that our words may be as Authoritative and convincing as our Oaths Thus Clemens Alexandrinus describes a just man to be one that evidenceth the truth of his promises by the sincerity and constant stability of his words and actions Cicero records it of a certain Citizen of Athens that being known to be of a Religious and upright conversation Orat. pro Baldo and being to give his publick testimony upon Oath was not permitted so to do but as he approached near the Altar to that purpose all the Judges with one voice cryed out That he should not swear being unwilling to give more credit to his Oath than to his word Very pertinent to the meaning of our Saviour where he saith Swear not at all is that saying of Hierocles He that in the beginning said Thou shalt reverence an Oath did therein enjoyn us to abstain from swearing concering such thing as are contingent and of uncertain events For such things are so mutable and of so small an account that they are not worth an Oath neither is it safe to swear about them And Libanius inserts this amongst many other Vertues for which he highly extols a Christian Emperor That he was so far from Perjury that he feared to swear to what he knew to be truth A perjurio tantum abest ut etiam vera jurare vereatur XXII Faith may be given without an Oath Therefore in some Nations instead of Oaths they give unto each other their right hands which among the Persians is the strongest assurance of Faith that can be given And amongst other people they oblige themselves by other signs and that so strongly that unless he that shall so oblige himself do fulfill his promise he is held as execrable as if perjured But especially of Kings and Princes it is usually said that their faith given is as good as an Oath For such they should be that they may say with Augustus Bonae fidei sum I have a clear Reputation And with Eumenes I had rather lose my life than break my Faith Whereunto Gunther alludes where he saith No Oath more Sacred than the word of Kings Whereunto we may add that of Alexis Comicus If I but nod 't is firm as though I sware This testimony Isocrates gives of King Evagrius That he kept his word as Religiously as he did his Oath Cicero in his Oration for King Dejotarus highly commends Cajus Caesar for this That if he gave to any man his right hand it was sufficient to confirm any Promise that he made whether in Peace or War And in those Heroick times The elevation of the Royal Scepter was equivalent to the Oath of a King as Aristotle notes CHAP. XIV Of the Promises Contracts and Oaths of Soveraign Princes and States I. The opinion of some who hold that Restitutions to the full arising from the Civil Law appertain to the acts of Kings as such refuted as also this that Kings are not bound by their own Oaths II. To what Acts of Kings the Laws extend explained by distinction III. When a King is bound by his Oath and when not IV. How far forth a King is bound to what he hath promised without cause V. The use of what hath been said concerning the force of the Laws about the Contracts of Kings VI. In what sense a King may be said to be obliged to his Subjects by the Law of Nature only or even by the Civil Law VII A Right gained to Subjects how it may lawfully be taken away VIII The distinction of Things gained by the Law of Nature and by the Civil Law rejected IX The Contracts of Kings whether they be Laws and when X. How by the Contracts of Kings they that inherit all his Goods stand bound XI How by those Contracts they that succeed in the Kingdom may stand bound XII And how far XIII The free Grants of Kings when revocable and when not XIV Whether the true Kings be bound by the Contracts of them that invade or usurp the Kingdom I. Whether Kings may rescind their own Acts. THe Promises Contracts and Oaths of Kings and of such others as have the like Soveraign power have some questions peculiar to themselves as well concerning what power they have over their own Acts as concerning what they have over their Subjects as that which they have over their Successors As to the first of these it is questioned Whether the King himself hath the same power to restore himself to the full or to make void his own Contracts or to absolve himself from his Oath as he hath his Subjects Bodine was of opinion that a King being circumvented by another mans fraud by fear or error may for the same causes be restored to his own Rights as well in things appertaining to the lessening of his Prerogative as a King or in things appertaining to his private Estate as his Subjects may Whereunto he addes That a King is not bound by his Oath if the Contract agreed
on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Greeks do commonly understand Righteousness and by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
nisi sacra colenti Strangers shall not direct Into their way if not of their own Sect. The like doth Tacitus record of them Hist 6. Apud ipsos fides obstinata misericordia in promptu adversus omnes alios hostile odium Between themselves they were very faithful and apt to shew mercy but to all others they bare a mortal hatred But because they were commanded to be thus charitable to their Brethren therefore to conclude that it was not lawful for them to do good unto strangers will prove but ill consequence But yet such were the corrupt Glosses of the Hebrew Doctors that they perswaded the Jews that if they performed those duties of Justice and Charity to those of their own Nation they had sufficiently fulfilled the Law though to all others they were not uncivil only but barbarous as indeed they were For we find it recorded of them by the Evangelist that it was not their custome to eat to drink or to have any familiarity with Strangers And thus through all Ages they have continued as appears by the Characters given of them by all Historians Apollonius Molo objects against them thus They admit of none amongst them that agree not with them in matters of Religion neither will they communicate with them in any thing Thus do the Friends of Antiochus in Diodorus brand them A people they are of all others the most unsociable to strangers for they account all such as enemies And a little after They will not eat with any other people nor so much as salute or bid them farewel such a general hatred they bear to all mankind The like testimony doth Philostratus give of them And in Josephus we find it every where objected against them That they were a people of all others the most uncivil and the most unsociable But Christ who was every where most observant of the Law did by his own example teach them that this was not the scope of Moses nor the sense of the Law John 4.9 when he preferred the good Samaritan before the Levite and asked and received water from the woman of Samaria In that prayer which King Solomon made at the Dedication of the Temple we find this Petition That God would vouchsafe to hear the prayers of the strangers which they should offer up unto him in that house whereunto Josephus adds these words Ant. lib. 8. c. 2. For we are not of so Inhumane a nature as to stand ill affected to strangers Yet herein we are to except not only the seven Nations above mentioned but the Ammonites and the Moabites of whom we find it written thus Deut. 23.6 Thou shalt not seek their prosperity nor their good all thy dayes for ever In which words the Israelites are forbidden to make any League of society or amity with them yet it gives them no right to make war against them Or haply this place of Deuteronomy may be better understood according to the opinion of some of the Hebrew Doctors as if to seek a peace from them were forbidden but not to accept thereof when offered Certain it is they were forbidden to make War upon the Ammonites Judg. 11.16 Deut. 2.19 neither did Jephtha accept it till they had obstinately refused equal conditions of Peace nor David till he was provoked thereunto by unsufferable injuries The Question then resteth here Whether we may joyn with Infidels in a Social War Whether it be lawful to enter into a Social War with Infidels Before the Law given that this was not unlawful appears by the practice of Abraham who assisted the wicked Sodomites in their War Neither did Moses change any thing herein that we can read Of the same perswasion were the Asmonaeans who were both very skilful in the Law and very strict observers of it witness their religious observation of the Sabbath whereon notwithstanding they made use of their Arms to defend themselves but not otherwise and yet we find them entring into Confederacy with the Romans and the Lacedaemonians by the consent both of Priests and people and instituting solemn Sacrifices for their safety These Asmonaeans we find highly commended in the Chaldee Targum in the Books of the Maccabees and in the Epistle to the Hebrews whose example both Emperours and Christian Kings following made Leagues with such as were either not at all Christians or at least not sound Christians as Constantine with the Goths and Vandals Justinian with the Lumbards the Saracens the Francks the Scythians So did Theodosius Honorius Leo Heracleus Basilius Isacius and others with the Vandals and the King of Spain with the Moors Now the examples that are brought out of the Scripture for the defence of the contrary opinion have causes peculiar to themselves For certainly some Kings and people there were beside those forbidden by the Law who were so wicked that God by his Prophets declared his purpose to destroy them now to joyn in Confederacy with these was doubtless unlawful Thus did the Prophet reprove Jehosophat for joyning in League with Ahab yea and seems to threaten him for it Shouldst thou help the ungodly and love them that hate the Lord 2 Chr. 19.2 therefore is wrath upon thee from before the Lord. For the Prophet Micah had before told the unhappy success of that War So did another Prophet reprove Amasia for waging a War with an Army hired out of Israel Let not the Army of Israel go with thee 2 Chr. 25.7 for the Lord is not with them But this was not by reason of the unlawfulness of the League but by reason of the quality of the persons as may be evinced by this that God did sharply rebuke and threaten Jehosophat for associating himself with Ahaziah King of Israel though it were but for traffick And yet when David and Solomon did the like with Hiram God did not only not reprove but in part commend them for it Constit Clem. lib. 6. c. 18. For in that Ahaziah is said to do very wickedly it is to be understood of the whole course of his life which was aggravated in that being an Israelite he had forsaken the God of his Fathers and therefore was God provoked to blast all his enterprises For this also is to be observed That the case of those who being Israelites forsook the Lord whom they knew Esay 8.6 1 Chr. 16.12 Ambr. ad Rom. 3. was far worse than of those that were strangers For against those that made this defection the rest of the people might take Arms and destroy them and all they had Deut. 13.13 Sometimes again where the Leagues are blamed it is not for the Leagues sake but for the wicked intention of him that makes it So God reproves Asa for betaking himself to the Syrian namely out of diffidence which he had declared by sending the Vessels consecrated to God unto the Syrian So when he was sick 1 Chr. 16.12 he placed more confidence in his Physician than
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
extend the Obligation is not rashly to be admitted But with much more caution than in the case before mentioned where we admit of words in their largest signification though not much in use For here we raise our conjectures without regard had to the words promising which cannot introduce an obligation unless the Conjectures be very certain for here a parity of Reason is not sufficient unless it be the very same Neither is the same Reason at all times sufficient because as I said before Reason doth often so move us that to shew our own freedome our will is of it self a sufficient cause of our Promises without any other Reason Now to justifie such an extended conjecture beyond the words of the Promise it is necessary that it should plainly appear That the Reason under which that case which we would comprehend falls was the only and most efficacious cause which moved the Promiser and that that Reason was in its generality so considered by him because otherwise the Promise would prove either unjust or unprofitable As for Example An agreement that such a place should not be surrounded with walls being made at such a time when no other Fortifications were in use should doubtless extend to all Muniments though but of Earth in case it do appear that the only reason why Walls were prohibited was That that place should not be fortified Another Example is usually brought of a man who believing his Wife to be with Child disposeth his Estate to such a man in case that Child should dye which by all probable conjectures should be extended to this sense Or if such a Child should not be born For certain it is That the Will of the Testator was moved with this only consideration That then he should have no Child of his own to inherit it This case we shall find not among the Lawyers only Lib. 1 2. de Orat. Bruto pâ—o Caecina but in Cicero and in Valerius Maximus Cicero in his Oration for Caecina pleads this case thus What Is this sufficiently provided for in words No. What then was of force to do it The Will Which if it could be understood by silence we should have no need of Words But because that cannot be therefore were words invented but such as should not hinder the Will but declare it And a little after in the same Oration he adds Idem jus esse ubi perspicitur una atque eadem causa aequitatis Where there manifestly appeared but one and the same cause of Equity i. e. where there was the same solitary cause moving It may be presumed there is also one and the same Right Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another and he adds this reason Quia idem valent sponsalia quod Nuptiae Because saith he such Espousals are equal to Marriages Exod. 21 28 35. So likewise in the Mosaical Law under the name of Oxen are all gentle Beasts comprehended so is every Pool or Pond under the name of a Well So likewise an Injunction though it run in this form Vnde me vi dejeceris hominibus coactis armatisve Whence thou hast thrust me out by force and arms takes place also against all manner of force that threatens our life and limbs For that which is usually done by armed men if by any other counsels or means we are brought into the same danger the Law affords us the same Right and Remedy Quintilian the Father in one of his Declamations brings in this Example Murther doth usually signifie the effusion of humane blood by the Sword But if a man be killed by any other means we have recourse to the same Law For if a man shall fall among Thieves or if he be thrown into a River and there drowned or if he be tumbled headlong from an high Precipice his death shall be revenged by the same Law as if he had been killed by the Sword The like Argument we find used by Isaeus concerning the Inheritance of Pyrrhus where because by the Laws of Athens a Father having no Son could not make his Testament if his Daughter were unwilling he infers that neither had he without her consent the power of adopting one XXI Whether a Command given for one thing be fulfilled in doing another as profitable if not more And from hence that famous Question in Gellius may easily be answered concerning a Command given by our Superiour Whether it may be fulfilled though not by the same yet by another thing equally profitable or haply more than that which was commanded Servants saith Quintilian act some things more freely out of a good mind and even our Slaves bought with our Money do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded Which may be done if it appear That what was so particularly described but only under some general consideration which might also be otherwise obtained But if that do not sufficiently appear Lib. 1. c. 13. then we are to follow Gellius his advice in that place For the Authority of a General would quickly be contemned if what he commands should be disputed and not obeyed XXII Or restrained and that either by reason of some defect in the Will That Interpretation that restraineth the sence from what the signification of the words wherein the Promise is contained will bear is derived either from an originary defect of the Will or from the repugnancy of some emergent case with the Will The originary defect of the Will is understood either from some absurdity which would otherwise evidently ensue or from failing of the main Reason which alone did fully and effectually move the Will or from a defect of matter The first whereof is grounded upon this That no man is to be believed to will things that are absurd XXIII Or when the main Reason ceaseth The Second is grounded on this That what is contained in the Promise whereunto such a Reason is added or where it is plainly understood is not considered barely or simply but as it falls under that Reason XXIV Or when there is a defect in the matter The Third is grounded on this That the matter so restrained is always observed to be in the mind of him that promiseth although the words of the Promiser do admit of a large signification XXV An observation concerning the last recited Conjectures But as concerning the Reason that moves the Will we must observe That under it are comprehended not only things actually existing but sometimes things that morally considered may be which when it takes place no restriction ought to be admitted As when it is in any League provided That no Army or Fleet shall be sent to such a place they ought not to be led thither though there be no intention thereby to do harm because in that agreement not so much the present damage as all future dangers whatsoever are regarded
But here it is also sometimes questioned Whether Promises are to be understood with this tacite condition That things remain so as they were when the Promise was made Which we deny unless it do manifestly appear That that present condition of things was included in that only Reason which we have said And we read of nothing more frequently in Histories than of Ambassadours who understanding so great an alteration made in the State as would render the whole matter and cause of the Embassie frustrate have returned home without attempting any thing XXVI Or from the repugnancy of some emergent case with the Will Which is taken either from something that is unlawful Courts of Equity necessary The Repugnancy of some emergent case with the Will is of two sorts For the Will is guessed at either by Natural Reason or by some other sign of the Will The proper office to judge at the Will by Right Reason Aristotle assigns to Prudence in the understanding and in the Will to Equity which he very fitly defines to be the Correction or Moderation of that wherein the Law by Reason of its generality is deficient Which ought to take place as well in Testaments as in Contracts respectively For seeing that all emergent cases could neither be foreseen by the Law-giver nor excepted in the Law therefore there is a necessity that some liberty should be granted for the exempting of such cases as he that made the Law would have exempted had he been present or could he have foreseen it And yet is not this rashly to be admitted for that were to make himself Lord over another mans act but then only when we have sufficient signs to justifie our Conjectures Whereof none can be more just than this when they would binds us to things repugnant to the Laws either of God or Nature For such Laws having no power to oblige are necessarily to be exempted Quaedam etiamsi nulla significatione Legis comprehensa sint natura tamen excipiuntur There are some things saith Quintilian that naturally are exempted although they are not comprehended by any signification of the Law As he that hath promised to restore a Sword to him who entrusted him with it if the man to whom the Promise was made be mad he ought not to deliver it lest he thereby create danger to himself or to some others that are innocent So neither are we to restore a thing to him that deposited it with us if the right owner demand it This I approve of saith Triphonius to be Justice that so gives to every man his own that he detracts not from the juster claim of another The Reason whereof is because such is the force of Propriety being once introduced that not to return a thing to the right owner when known is altogether unjust XXVII Or when some too great a charge ariseth to the Promiser in comparison of that act The Second sign shall be this When strictly to follow the words of the Promise or Contract is not of it self and altogether unlawful But when it binds to such things as to a prudent and well-balanced Judgement are too grievous and intollerable And that whether we respect humanity it self absolutely or by comparing the person promising and the thing promised with the end for which such a Promise or Contract was made So he that lends a thing for such a time may require it before that time if he stand in great want of it Because it is presumed that no man would willingly do his Friend a courtesie in that wherein he should do himself a manifest injury So he that shall promise succours to his Allies shall be excused in case he be engaged in War at home so far forth as he shall stand in need of those Forces In like manner he that promiseth immunity from Tributes and Taxes means only from ordinary and annual Taxes not from those that may be imposed in times of greatest danger for the defence of the Common-wealth Wherefore it was too loosely said of Cicero That those Promises were not to be performed which were unprofitable to him to whom they were made nor those which did more endamage the Promiser than benefit him to whom they were made For the person promising is no competent Judge whether the thing promised will be profitable to him to whom it is promised unless it be in such a case as is before instanced of apparent madness Neither is every damage sufficient to absolve the Promiser from the performance of his Promise but the damage must be such as even from the very nature of the act it may be believed That could it have been foreseen it would have been exempted So he that is engaged to do so many days service for another is acquitted from his engagement if either his Father or his Son be affected with some dangerous sickness This was Cicero's opinion in this case If being retained to plead the cause of thy Client thy Son should in the mean time fall desperately sick Non est contra officium Off. l. 1. non facere quod dixeris Thou art not in duty bound to attend that Cause And in this sense is that of Seneca to be understood Then do I break my word then may I be justly charged with levity De Benef. l. 4. c. 35. when all things remaining in the state they were in when the Promise was made I do not perform what I promised But in case there fall out any unexpected change concerning that whereupon the Promise was made it gives me liberty to consult anew and yet I preserve my Faith I am haply retained in a cause wherein I do afterwards conceive that my Father may be damnified I have promised to take a Journey into the Countrey with such a Companion but I understand since that the way is infested with Robbers I have engaged my word to be present and to assist in such a business but am with held by the unexpected sickness of my Son or by my Wives falling into labour Omnia esse debent eadem quae fucrunt cum promitterem ut promittentis fidem teneas All things ought to be in the same condition as they were when I promised to oblige me to do what I did promise Where by All things we must understand all things relating to the nature of that Act which is in question See Camd. anno 1595. The English did frequently make use of these politick Maxims both with the Hollanders and with the Hans-towns as Camden records For when Queen Elizabeth by assisting the States of Holland had drawn down the whole power of Spain against herself and therefore for her necessary defence demanded those vast summs lent them to prosecute their War They urging That that Money was not due by their Contract till the end of the War and that until then she was obliged in Honour to assist them She Answered That a Prince was not bound by his Contract when for just causes
Embassador admittance and he may command him to depart his Kingdom if he behave himself seditiously but that none should be without cause denyed Now causes there may be First from him that sends Secondly from him that is sent and Thirdly from the matter of Embassage As to the first we read that Pericles dismist Melesippus the Lacedaemonian Embassador beyond the Territories of Athens because he came from an Armed Enemy And the Roman Senate denyed admission to the Carthaginian Embassador Vid. Camden An. 1571. Quaest 4. Livy l. 41. Zonaras because they had an Army in the heart of Italy So did the Achaians to the Embassadors of Perseus because he attempted a War against the Romans The like did Justinian to the Embassadors of Totilas and the Goths in Vrbin to the messengers of Belisarius And the Embassadors of the Scythians because they were a people notoriously wicked were in all places repulsed as Polybius testifies As concerning the second cause i. e. from the person sent an example we have in Theodorus the Atheist to whom Lysimachus refused to give Audience though he came as an Embassador from King Ptolomy The like hath been done to others for no other cause but personal hatred The third is when the ground or reason of him that sends is suspected to move Sedition as was that of Rabshakeh rejected by Hezekiah Rabshakeh's Case 2 Kings 18. and the like Or when the matter or form is not well suited to the digniâ—y of the person with whom we treat or not so well timed So the Romans forbad the Aetolians to send out any Embassadors without their Generals permission And Perseus was forbidden from sending any Embassadors to Rome but only to Licinius so they commanded the Embassadors of Jugurtha to depart out of Italy within ten dayes unless they came to deliver their King and Kingdom into the power of the Romans So the Emperour Charles the Fifth commanded the Embassadors sent to denounce War against him from France Venice and Florence to be conducted to a place thirty miles distant from his Court as Guicciardine records it Lib. 18. And thus may those Ordinary Embassadors which are constantly resident in most Courts be worthily rejected as unnecessary and a new upstart custome whereof former Ages were wholly ignorant IV. Against such Embassadors as raise Sedition our defence is lawful but not their punishment Concerning the latter priviledge of Embassadors namely That they should not be molested the question is more arduous and knotty and by the best Wits of this Age variously handled In the stating whereof they have respect First To the persons Secondly To their Attendants Thirdly To their Goods As to their Persons some think that they are to be protected against all unjust force only esteeming their priviledges to be understood of Common Right Others are of opinion that the persons of Emperours are not for every cause to be molested but only when they themselves do violate the Law of Nations which opens a door so wide that all delinquencies are punishable in Emperours except such as are committed against the Civil Law For in those committed against the Law of Nations are contained even those that are committed against the Law of Nature Others do yet restrain this force to those who shall be found to act any thing against the State of the Common-wealth or against the honour and dignity of the person to whom they are sent which some think to be of dangerous consequence and therefore would have complaint made to him that sent them and the Embassadors sent home to be by him punished Others there are who think it fit in this case to appeal to other Kings and Free States that are not concerned desiring their advice therein which indeed may stand with prudence but not to be imposed upon us as a Law The Arguments which every one of these do bring to strengthen their several opinions do conclude nothing certainly Because this Right is not grounded upon reasons that are certain as the Law of Nature is but it receives its bounds from the consent of Nations Now the Nations may either altogether provide for the safety of Embassadors or with some certain exceptions For advantages may by either of these arise to the Common-wealth By this latter the punishment inflicted upon such as notoriously offend deters others and secures the peace of that Nation By the former the profit ariseth to the State by Embassies which are the more easily and willingly undertaken when the persons sent are encouraged thereunto as knowing that the greatest care that can be is taken for their security we are therefore to observe how far forth the Nations did agree in this point which cannot be evinced by examples alone For of these we have enough extant on either side we must therefore have recourse herein as well to the Judgement of the Wisest Men as to our own most probable conjectures For the Judgement of the Wisest Men are guided by two notable precedents one out of Livy the other out of Salust That out of Livy by the Embassadors of Tarquine who pretended only to treat with the Senate about some of Tarquine's Goods but were found conspiring with the Citizens to betray the City And when it was moved in the Senate What should be done with them It was at length resolved on That though they deserved to be proceeded against as enemies yet valuit Jus Gentium The Law of Nations must be preserved Whence we may conclude That by the Law of Nations Protection is due unto Embassadors though they should be found plotting against the State they are sent unto That in Salust doth more immediately respect the Concomitants of Embassadors than Embassadors themselves and yet by an Argument drawn from that which is less credible to that which is more may serve to prove what the Law of Nations allows to Embassadors in the case aforesaid Salust speaking of Bomilcar who came to Rome as an Assistant in the Embassage but was found stirring up the Citizens to Rebellion saith thus Fit reus magis ex aequo bonoque quam ex jure Gentium He was made Guilty rather by the Rules of Equity than by the Law of Nations Where by aequum bonum is meant the meer Law of Nature which requires that he that doth evil should suffer for it being found But the Law of Nations excepts from this General Rule Embassadors and such as like them come upon the security of the Publick Faith Wherefore it is contrary to the Interest of the Law of Nations that Embassadors should be held guilty as many other things are which are permitted by the Law of Nature Our conjectures also may be thus guided Most probable it is that the priviledges granted to Embassadors are somewhat more than what is due unto others by common right But in case they are no longer to be secured than whilst they live regularly what have they more than others Besides the benefit that
Wherefore in case any hainous crime be committed by them they are required to be delivered up by the Embassadour to punishment but they are by no means to be taken from him by force Which when once done by the Achaians who seized upon some Lacedaemonians who attended upon the Roman Embassadours the Romans presently cryed out That they had violated the Law of Nations Whereunto also we may refer the judgement of Salust concerning Bomilcar which we have formerly quoted But if the Embassadour shall refuse to deliver him then we are to proceed in the same manner as is before prescribed against the Embassadour himself But whether the Embassadour have jurisdiction over his own Family or whether his House be a Sanctuary for all such as shall flye unto it for refuge depends upon the pleasure of him to whom he is sent for this belongs not at all to the Law of Nations IX And to their movable Goods The movable Goods also of an Embassadour and whatsoever else shall appertain to his person are not to be received in pawn or attached for any debt neither by any ordinary course of Law nor by the hands of the King himself which some hold as the truer opinion For no force or compulsion must be by any means used against him or his that so he may enjoy an absolute and perfect security And if he shall have contracted any debt and have no real Estate as it usually falls out he must only be fairly intreated to discharge them which if he refuse then is he that sent him to be likewise intreated to pay them But if neither will do it then in the last place we must flee to such Remedies as are provided against such Debtors as do reside in Foreign Countries Yet is it no breach of their priviledge that their Coffers be searched at their first entrance in case it be according to the custom of the Country whereunto they are sent As it happened to Sir Thomas Chaloner in Spain who complaining thereof to Queen Elizabeth and desiring to be recalled Cambden Eliz. Anno 1561. was prudently answered by that most wise Queen That an Embassadour should take all things in good part so as his Prince's Honour was not directly violated X. Examples where there are Obligations but no power to compel Neither is there any cause to fear as some may imagine that if the case be thus with Embassadours no man will trust them or make any Contract with them For the King himself though he cannot be compelled to any thing yet never wants Creditors if they give good prices And among some Nations as Damascen informs us it is customable That as to such debts as are contracted upon trust there is no remedy provided by Law no more than there is against men that are ungrateful So that men in those parts are compelled either to pay readily for what they buy and on both sides to fulfil alike all their agreements or to content themselves with the bare faith and credit of the Debtor Seneca seems to envy the happiness of those Countries by wishing the same custom in all places De benef lib. 3. c. 15. I would to God saith he that we could perswade all people that Moneys lent upon credit should be recovered only from those men who were willing to pay and that no stipulation should bind the Buyer to the Seller and that no written Contracts or Covenants under Hand and Seal should be preserved but rather that the performance of them should be left to the Faith and Honesty of the Debtor Appian relates of the Persians That they hated the borrowing of mony as being an inlet to Fraud Falshood and Perjury Lib. 4. Lib. 15. And Aelian reports the very same of the Indians with whom agrees Strabo in these words Judicia non esse nisi de caede injuria c. There are no Judicatories unless it be for Murders and Injuries done because it is not in the power of any man to avoid these But as to Contracts and Agreements it is in the choice of every man to make them or to refuse them and therefore if any man break his Faith with us we are to bear it patiently and to learn rather to be wise in taking heed before hand whom we trust than by our folly to fill the City we live in with Law-suits It was also wisely enacted by Charonda That no man should have his Action at Law against that man whose Faith he thought fit to take for the price of what he sold him which Plato likewise approves of L. 8. de Leg. Mor. Nic. 8. 15. This was also observed by Aristotle In some Countries saith he there is no recovering of such Debts by Law-suits for they conceive that men ought to acquiesce and to be contented with the faith of that man whom they thought worthy to be trusted Mor. l. 9. c. 1. So in another place Some Countries there are where the Laws do forbid a man to recover by Law that which he hath trusted upon the Faith of another as if he with whom we have made any Contract and on whose faith we have taken were privately only to be dealt with Those Arguments which from the Roman Laws are brought against this opinion are to be referred not unto our Embassadours but unto such as are sent from Provinces or from particular Cities XI Prophane Histories are full of the Examples of Wars undertaken for the affronts offered to Embassadors And in the Sacred Story we read of a War made by King David against the Ammonites upon that ground Neither can there be any cause more just as Cicero pleads against King Mithridates CHAP. XIX Of the Right of Burial I. From the same Law of Nations ariseth the Right of burying the Dead II. Whence this springs III. It is due even to Enemies IV. Whether to such as are notoriously wicked V. Whether to such as kill themselves VI. What other things are by the Law of Nations due I. From the Law of Nations ariseth the right of Burial FRom the same Law of Nations which is voluntary ariseth the Right of burying the bodies of the Dead Dion Chrysostome amongst those Customes which he opposeth to written Laws placeth this of Burial next to the Rights due to Embassadors And Seneca the Father among those Laws that are unwritten which yet are more firm and binding than those that are written inserts this of the Interment of the dead The Hebrew Historiographers Philo and Josephus term this the Right of Nature And Isidore Pelusiota One of the Laws of Nature as it is very usual with them to comprehend all such Customes as are common amongst all Nations and agreeable to Natural Reason under the Notion of the Law of Nature as I have elsewhere shewed And no marvel Epist ult edit 491. Lib. 12. Lib. 13. Hist 8. 19. seeing that as Aelian speaks The burial of the dead is a thing commanded even by Nature
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
private is expected to arise from the very War being considered a part from the cause that justifies it which vice is most dangerous because it comes mantled with the Robe of Vertue But as St. Augustine rightly adviseth Satius est cujuslibet inertiae poenas luere quam istorum armorum gloriam quaerere Better it is to suffer the punishments of any cowardice then to seek glory by such a War This was it that sullied all the Victories of Alexander and for which all Historians declaimed against him as a Robber because he made War only for Ambition and to that end disquieted the whole World vexing all Nations without any cause given and making War upon those whom he never knew for what could this be but as St. Augustine calls it Grande Latrocinium A great Robbery Or a just cause may be spoiled when accompanied with a passion manifestly unlawful as when we rejoice in the destruction of our Enemies barely as such without respect to any thing that is good So Aristides was of opinion that the Phocenses were deservedly destroyed but withall he condemned King Philip for destroying them because he did it not upon the score of Religion as he pretended but out of an Ambitious desire to enlarge his Empire Salust ascribes all Wars to this one and that very ancient cause namely a vehement thirst after Dominion and Riches And it was Tacitus his observation That Gold and Wealth were ever the principal causes of making War which Seneca attributes to Covetousness and Revenge Mad anger and a greedy thirst for gain The League have broke Whereunto we may add that of St. Augustine An earnest desire to make what spoil we can the cruelty of Revenge an unquiet and implacable Spirit Contumacy and Rebellion together with an ambitious thirst after Empire and Riches these and the like are deservedly blamed in all Wars But yet these where a justifying cause is not wanting though they favour rankly of a corrupt mind yet do they not render the War properly unjust and therefore restitution cannot justly be required of damages sustained in such a War CHAP. XXIII Of the Causes of War that are doubtful I. Whence doubts arise in moral matters II. That we ought to do nothing contrary to the dictates of our own judgment though erroneous III. That the judgment is sometimes swayed by arguments drawn from the thing it self IV. Sometimes by the Authority of others V. If on either side doubts do equally arise and the matter be weighty and one must be chosen then we are to chuse the safest VI. Whence it follows that in such a case we are not to engage in War VII Which may be avoided either by a Treaty VIII Or by Arbitration where also is handled the duty of Christian Princes in mediating between the parties engaged in War IX Or by lot X. Whether single Combats may be admitted to prevent a publick War XI That the present occupant hath some advantage where the case is equally doubtful XII Where the case is equally doubtful on both sides and neither party be in possession the matter contended for may be divided XIII Whether a War may be on both sides just explained by many distinctions I. Causes of doubts whence IT is true what Aristotle in the first of his Morals teacheth That there cannot be the same certainty in Ethicks as in Mathematicks which therefore happens because the Mathematicks abstract forms from all matter and because the very forms themselves are such for the most part as will admit of no mean As between streight and crooked there is nothing intervenient But in Morals the least circumstance varies the matter and the forms concerning which we treat have usually something interjacent and of that latitude that they sometimes approach nearer to this extreme and sometimes nearer to that As between things absolutely commanded and things absolutely interdicted there are some things that may or may not be done so between things exactly just and things absolutely unjust there are some things intermediate whereof some encline nearer to this extreme and some to that From whence doth often arise some doubt and ambiguity to whether of the two extremes they approach nearest as we may perceive in the degrees of heat and cold in water when it is tepid and in the degrees of light and darkness health and sickness c. Insomuch that as Aristotle saith The judgment hath sometimes an hard task to determine which is to be preferred before the other But Andronicus Rhodius goes yet farther affirming That it is a very difficult thing sometimes to distinguish between Realities and Resemblances things exactly just and things that are only apparently so II. Nothing to be done against our judgment But this Rule is in the first place to be constantly observed That though an Act be really Just yet if upon a serious examination we shall judge it to be unjust to us if we do it it is so And this is that which St Paul intends when he saith Whatsoever is not of faith is sin In which place Faith signifies the firm perswasion or judgment of the mind concerning a thing Rom. 14.23 as may easily be collected from those other expressions of St Paul in the same Chapter Let every man be ful y perswaded in his own mind Bâ—â—ssed is the man that condemneth not himself in that which he alloweth Peccatum est qâ—od aliter fit quam probatum est Whatsoever any man doth saith St Ambrose Ambrose otherwise than what his own conscience approveth is sin For that a thing be well done saith Plutarch Plut. Timoleonte it is requisite not onâ—y that what is done be just and honest but that there be a firm and constant perswasion of mind in him that doth it that what is done is therefore done because his conscience tells him that it ought to be so done For God hath endued the rational soul with a discerning faculty to the end that it may guide us in all our actions which being slighted the mind immediately becomes sensual and brutish But yet it sometimes falls out that the judgment wavereth and gives but a dim and uncertain light which if upon a mature disquisition we cannot clear then we should take the advice of Cicero De Off. lib. 1. and forbear to act whilst we remain doubtfull whether it be just or unjust The like advice Pliny gives Wherein thou doubtest forbear The Hebrew Doctors also give this caution Beware and forbear in matters that are dubious But this is then only seasonable where we have a free choice either to do or not to do but not where we are obliged to do either this or that and yet are unsatisfied in either whether it be just or not for there we are to chuse that which in our judgment seems to be less evil Semper enim ubi electio evadi non potest minus malum rationem induit boni For alwayes when the will is straitned between two
they broke out into Arms. So Coriolanus in Dionysius Halicarnassensis If a man saith he without coveting anothers do but demand his own and being thereof denied shall make War that War by the consent of all Nations is most just For as King Tullus saith in the same Author Quae verbis componi nequeunt ea armis decernenda sunt Those differences which cannot by reasons be composed must be determined by blows And yet as Vologeses in Tacitus declares I had rather keep what mine Ancestors have left me by Equity than by the expence of blood by mine own Just Title than by a doubtfull War For as King Theodorick wisely observed Then only is War profitable when our Enemies will not otherwise do us Justice VIII 2. By Arbitration The second way to prevent War between those who have no Common Judge between them is to put the matter in question to Arbitration This though much scorned by such Princes as are too confident in their own strength yet is worthily to be prest and insisted on by all that love Peace and Equity To persecute him as an enemy that is willing to put his Case to an indifferent Arbiter is impious and unjust saith Thucydides So concerning thâ— Kingdom of the Argives Adrastus and Amphiraus were both content to refer themsâ—â—ves to the judgment of Eriphyla as Diodorus testifies The like did the Athenians and the Megarenses to three Lacedemonians concerning the Island Salamis Lib. 5. The same Thucydides records this to be one of the Articles agreed on in the League between the Lacedemonians and the Argives That in case any Controversie should at any time arise between their Cities the matter in difference should amicably be referred to a third City which should be indifferent to both according to the ancient custome of their fore-fathers Thus the Corcyreans declare their readiness to refer their difference with the Corinthians to any of the Peloponnesian Cities that they should agree upon Many Great Princes and States to save the effusion of blood have been contented to put their grievances to Arbitration Aristides commends Pericles that to avoid a doubtfull War he was willing to commit his Cause to indifferent Judges So also doth Isocrates in his Oration against Ctesiphon highly extol King Philip of Macedon for his readiness to refer all those Controversies which he had with the Athenians to some other City that stood indifferently affected to either party Thus do the Samnites as to the differences between themselves and the Romans offer to stand to the award of those States that were at Peace with both of them Xen. Cyro lib. 2. Cyrus makes the Indian King Judge between himself and the Assyrian So do the Carthaginians to avoid a War put the Cause of their Quarrel with Masinissa to the Judgment oâ— others Yea and the Romans themselves do refer their differences with the Samnites Livy lib. 8. to be compromised by their common Associates We for our parts are ready say the Gepidae to the Lombards in Procopius to refer our selves to any indifferent Arbiters Goth lib. 3. Queen Elizabeth offered to refer the differences between her and the Dane unto Commissioners on both sides Camden Anno 1600. or unto the Elector of Brandenburgh the King of Denmark's Father in Law and to the Duke of Mechlenburgh and the Duke of Brunswick as Arbitrators Now they that refuse this way of disceptation by Reasons Arguments or Arbitrements running rashly into War when it may be avoided decline all Justice Humanity and the common practice of the best and wisest Princes Yet that Philip King of Spain would not admit of the Pope to be Judge between him and other Competitors for the Kingdom of Portugal I do not wonder Aberic Gentilis because the Pope claimed the decision of all such Controversies as his proper Right wherefore that wise King was unwilling to add his own Example to some ancient ones whereby the Pope might hereafter prove himself to be the sole Arbiter and Disposer of Kingdoms Many other Examples may be produced but in a Case so clear these may suffice Plutarch tells us That it was the principal duty of the Colledge of Heraulds among the Romans to take care Nè sinerent prius ad bellum veniri quam spes omnis judicii obtinendi periisset That no War should be attempted but where all hopes of receiving satisfaction for injuries done them by any other means were frustrate And Strabo testifies of the Druides in Gallia Lib. 4. That anciently they were the Arbitrators between publick enemies and that by their mediation Peace was often made even when the Armies were preparing for battel Which Office did of old in Spain appertain to their Priests as the same Author records But much more doth it concern Christian Kings and States to prevent the effusion of blood by this means Lib. 11. For if both Jews and Christians have thought fit to appoint Arbitrators among themselves to determine all Controversies to the intent Vict. de Jure Belli n. 28. That Brother should not go to Law with Brother before unbelievers as St Paul hath also commanded how much more reason is there that such Arbitrators or Judges should be chosen by us to prevent mischiefs far greater than going to Law namely spoil rapine murther yea and sometimes desolation which are the unhappy concomitants of cruel War From whence Tertullian concludes That a Christian ought not to wage War seeing that it is not lawfull for him to go to Law which notwithstanding is to be understood in a qualified sense Gregor lib. 10. And indeed it is very unfit for Princes who profess themselves to be followers of Christ to rush into arms one against the other with so much bitterness seeing that there are other means found out to compromise their Quarrels and to make better use of their Arms and Valour against the Common Enemy And for this as well as for many other reasons it would be very convenient nay necessary that constant Diets and Conventions of Christian Princes should be held where by the prudence and moderation of such as are not interessed all Controversies may be composed yea and that some expedient may be found out to enforce both Parties to accept of Peace upon equal and indifferent terms whereof we may find Examples in Cassiodore * Cassiod lib. 3. 1 2 3 4. Gailius †Gail de pace publ lib. 2. cap. 18. n. 12. and others which anciently was committed to the care of the Druides in France to whom the Bishops did afterwards by a better Right succeed So we read of the French Kings that in the division of the Kingdom they have referred themselves to the judgment of their Peers IX 3. By Lot The third way to prevent War is to decide Controversies by Lots which Dion Chrysostome much commends and long before him Solomon Prov. 18.18 whereof see St Augustine in his first Book 28. Chap. of
as Aristotle rightly observes The arguments that excite us to action are of two sorts De motione animalium either they are drawn from the goodness of the end or from the possibility of obtaining it which comparison hath these three Rules whereby we may be guided First Three Rules to guide us in the choice of Good If the thing in debate seem to have in a moral esteem an equal efficacy to good and to evil then if the good we hope for have somewhat more of good than the evil we fear hath of evil we may adventure upon the action but if the conveniencies be not able to over-ballance the inconvenience it is better to refrain for a wise man though never so daring and magnanimous will not run the hazard of his life for every cause but then only when the reward is great weighty and honourable The second Rule is this If the Good and Evil seem to be equal which may proceed from the thing in question then we may thus guide our choice if the thing it self have a greater efficacy to produce the Good than it hath to produce the Evil then we may chuse it Thirdly If both the Good and Evil seem unequal and the power or efficacy of the things no less unequal then that thing is at length to be chosen if its efficacy to the Good be greater being compared with its efficacy unto the Evil than the Evil it self is being compared with the Good or if the Good it self compared with the Evil be greater than its efficacy unto Evil being compared with the Good Thus Narses to Belisarius Where the dangers appear to be equal and the damage alike if we err Procopius Goth. lib. 2. cap. 13. there much discourse and consultation is necessary before we determine the matter in question but where the difficulties are unequal and the damages upon mistake greater or less than the hopes of gain there the choice is very easie and requires no great depth of judgment to determine What we have set down here somewhat more accurately Cicero hath in a plainer way De Offic. lib. 1. but to the same purpose described where he adviseth us not to expose our selves to dangers without cause than which nothing can argue a more fool-hardiness Wherefore in perillous cases we should imitate Physicians who in light distempers use gentle remedies but when the disease threatens death then those that are more doubtfull and dangerous Therefore it is the office of a wise man to help in a time of danger especially when he rationally conceives that the good he shall reap by it if it succeed doth over-ballance the damage that he fears if it miscarry But as the same Cicero elsewhere saith No prudent man will endanger himself in such an enterprise wherein the good success shall bring him little profit but where the least miscarriage may prove fatal For as Dion Prusaeensis saith Grant that our grievances be unjust and unworthy to be born yet will it not follow That whensoever we suffer any thing unjustly we ought by striving against it to make our condition worse To make use of iron and steel when more gentle remedies may prevail Plutarch or where the case is not extreamly dangerous becomes neither a skilfull Physician nor a Politick Statesman Dion Prusaeensis When our burthens are beyond our strength our endeavours to ease our selves of them are just and honest because necessary but if they are tolerable and that we have cause to fear that by struggling they may be made worse we must arm our selves with patience For as Aristides Aristides saith well Where our fears are above our hopes then it concerns us especially to beware VI. Life better than Liberty An example whereof we will borrow out of Tacitus who relates that amongst the Cities of France there arose a great debate whether were more desiderable Peace or Liberty where by Liberty we must understand that which is Civil namely a right to govern by their own Laws which in a popular estate is absolute and full but mixt and moderate in an Aristocracy especially in such an estate wherein no Citizen is uncapable of honours and by Peace we mean such a Peace whereby the destruction of a City or Nation by a cruel War may be prevented that is as Cicero explains it When the whole City is in danger of being lost or when the case of a Nation or City is so desperate that nothing but an utter desolation can otherwise with any probable reason be expected which was the very case of the Jews being besieged by Titus No man can be ignorant of Plato's Opinion in such a case who preferred death before subjection thereby shewing Quam sit non ardua virtus Servitium fugisse manu with what ease A man from slav'ry may himself release But Right Reason suggests the contrary for the Life of Man which is the foundation of all temporal blessings and the occasion of eternal is more to be esteemed than Liberty whether we take both to be either personal or national And therefore God himself intended it as an act of his mercy 2 Chron. 12.78 Jer. 27.13 that he delivered his people into captivity but destroyed them not And by the Prophet Jeremy he perswaded them To yield themselves into the hands of the King of Babylon lest they died by the Famine or by the Pestilence It is a question not easily answered saith St. Aug. whether the Saguntines did well to preserve their Faith given to the Romans De Civit Dei lib. 22. c. 6. so long until the City with themselves was totally destroyed by Hannibal De repub lib. 3. For though Cicero thought nothing sufficient to justifie a War but either the publick safety or the publick Faith given yet doth he not there determine the case of the Saguntines by shewing that if a City were driven into such a strait that they could not possibly preserve their Faith without the ruine of themselves nor preserve themselves without the breach of their Faith which was the case of the Saguntines whether of the two were most eligible But by the Authority of the Holy Scriptures we are taught That death is the greatest of all terrours and that Captivity whether of a Nation or of some particular persons is far more desiderable than utter destruction Thus Guido the Italian Poet bespeaks the Citizens of Milain Omnia securi pro libertate feremus Sed libertatem co tempta nemo salute Sanus amat neque enim certae susceptio cladis Quam vitare queas nisi cum ratione salutis Libertatis amor sed gloria vana putanda est It is not so properly a love to liberty as a preposterous itch after vain Glory that makes a man to prefer his freedom before his life Cicero instances this as a case of necessity that the Cisilinenses were necessarily to give themselves up to Hannibal although this clause were added to that
make use of the treachery of others in all other cases doth not allow of it in this case is the very same that was before given in the case of poyson namely To restrain the dangers that attended Kings and Princes When one told Eumenes Just lib. 14. That his Enemies had hired one to kill him He would not believe that any General or inferior Captain would give so ill an example against himself And in another place the same Justine declares Just Lib. 12. That when Bessus had killed King Darius it was not to be endured for examples sake because it was the common cause of all Kings For as Seneca well observes Regi tuenda est maxime Regum salus A Kings chief care is the defence of Kings In a solemn War and amongst those who have a right to denounce a solemn War it is not lawful by the Law of Nations privately to kill an Enemy but where there is no solemn War it is by the same Law of Nations accounted lawful that is unpunishable Annal. l. 11. Tacitus denies peremptorily That the Plot that was laid against the life of Gannascus was at all Lib. 7. degenerous because he was a Traitor And Curtius was of opinion That the guilt of Bessus in killing Darius did make the treachery of Spitamenes appear the less odious for that nothing could be thought wicked that was done against a Regicide So likewise Ammianus concerning Florentius and Barchalba who had surprized Procopius the Traitor Si Principem legitimum prodidissent vel ipsa Justitia jure caesos pronunciaret si rebellem oppugnatorem internae quietis ut ferebatur amplas ei memorabilis facti opportuerat deferri mercedes If it had been their lawful Sovereign that they had betrayed the Laws had justly sentenced them to death but if he were a Rebel or a Disturber of the peace of his own Country as was said ye ought to give him a reward worthy of so memorable a fact Thus is Artabanes highly commended in Procopius for killing Gontharides as we may read at the latter end of the second of his Vandal History So perfidiousness or treachery against Thieves and Pyrates though it be not altogether blameless yet is it not by the Law of Nations punishable because committed against such as are Enemies to humane Society But what if they that are sent to kill an enemy privately do owe him no faith But not if he owe him no faith But not if the person sent owe no faith to him whom he is sent to kill nor are any ways obliged unto him Surely then by the Law of Nations it is lawful for them to kill him if they can even in his own Quarters Thus Pipin Father to Charles the Great of France attended with one only of his Guard passed the Rhine and killed his enemy even in his own Chamber The like was attempted by one Theodotus an Etolian upon Ptolomy King of Egypt which Polybius commends as no unmanly attempt Such also was that Heroick enterprize of Q. Mutius Scaevola who was in Plutarch's esteem A man accomplished with all vertuous endowments which attempt he thus defends Hostes hostem occidere volui I being an Enemy would have killed an Enemy Livy l. 2. Lib. 3. c. 3. Porsenna himself acknowledged this to be an act of true valour Valerius Maximus commends it for a brave and gallant resolution So doth Cicero in his Oration for Publius Sextus because to kill an Enemy wheresoever we find him is lawful both by the Laws of Nature and Nations neither doth it make any difference how many they are that either thus act or suffer Six hundred Lacedemonians we read of that with Leonides their King marched directly through the Camp of five hundred thousand of their Enemies even unto the Kings Pavilion Just l. 2. Zozimus l. 4. the same may be done by fewer A reward was promised by the Emperour Valens to him that should bring in the head of any Scythian whereupon a Peace immediately ensued They were not many that circumvented Marcellus and his fellow Consul and slew them Livy 27. Tacit. Hist l. 5. De Off. l. 1. c. 40. Jos Anc. 15. Lib. 4. Lib. 24. and that had likely to have killed Petilius Cerealis even in his Bed Ambrose highly commends Eleazer who seeing a mighty Elephant higher than all the rest assaulted him supposing that he that sate upon him had been the King Not much unlike was that attempt that Theodosius made upon Eugenius recorded by Zozimus Nor that of the ten Persians against the Emperour Julian attested by Ammianus Neither are they only that make these attempts excusable by the Law of Nations but they also that imploy them Those Roman Senators that were so renowned for their Wars Livy l. 2. were reputed the Authors of that gallant attempt made by Scaevola Neither is it to the purpose to object that such men being taken are put to exquisite torments for this happens not for that they violate the Law of Nations but because by the Law of Nations every thing is lawful that is done against an Enemy and all Conquerours are more or less severe according as it shall conduce to their future advantage for thus are spies dealt withal yet notwithstanding it is held lawful by the general consent of Nations to send out such as Moses did Joshua into the land of Caanan It is the custom of all Nations to kill spies saith Appian and that justly sometimes by such as have apparently a just Cause to make War but by others it is only lawful by that licence which the Law of Arms sometimes gives But if there be any that will not make use of such instruments though offered this proceeds rather from the Magnanimity and the confidence of him that makes the War in his own strength than from an opinion he hath that by the Law of Nations it is unjust XIX Whether ravishment be in such a War lawful The ravishing of Women is by the Law of Nations sometimes permitted in War and sometimes forbidden They that permit it do respect only the injury done to the body of an Enemy which by the Law of Arms they think ought to be subject to the Will of the Conquerour But others much better look not unto the sole injury done unto the body of an Enemy but to the very unbridled act of Lust which conduceth nothing either to the security of the Conquerour or to the punishment of the Enemy and therefore should be no more unpunishable in War than in Peace and this is the Law if not of all Nations yet at least of the better and more civilized amongst them Marcellus before he took Syracuse took special care of the preservation of the Chastity Aug. de Civit. Dei lib. 2. even of his Enemies And Scipio as Livy testifies told his Souldiers That it much concerned his own honour Lib. 26. and the honour of the people of Rome That
expose themselves to labour and danger for nothing De benefic 4. c. 15. for this reason saith Seneca we usually reward Physicians though they cure us not Quod à rebus suis avocati nobis vacant Because we call them from their own affairs to serve ours And the same reason likewise serves for Lawyers as Quintilian notes Because they tear out their time and employ their whole study to defend other mens Estates thereby neglecting all other means to improve their own The very same is given by Tacitus Ann. l. 9. Omittit res familiares ut quis se alienis negotiis intendat That he casts off all care of his own domestick affairs that he may the better intend the good of others It is therefore very credible unless there shall appear some other cause as namely mere kindness or some former Contract that it was the bare hope of gain by the spoil of the enemy which they expected as a compensation for their loss of time and of their labour Vid. Plut. Marcell that made them to expose themselves to so great dangers XXIV And often to Subjects But as to Subjects the reason is not so evident because Subjects and Citizens owe their help and assistance to the Country or City whereof they are But yet seeing that all Citizens either cannot or will not expose themselves to those hazards and hardships that attend War therefore it is but reasonable that retribution be made by the whole Body of the people unto such as shall sustain the toil or the charges of it but much more the damage that shall be thereby occasioned in full recompence whereof the hopes of the whole prey or of an uncertain part thereof is by the people easily and that not without reason granted unto them So thought the Poet Propert. Praeda sit haec illis quorum meruere labores Theirs be the prey whose pains deserv'd it have As to our Associates an example we have in the League that was made between the Romans and the Latines wherein it was agreed Liv. l. 4. c. 24. That in all the Wars wherein the Romans should engage them the spoil taken from the Enemy should be equally divided between them So in the Wars wherein the Aetolians engaged the Romans it was agreed Dionys l. 6. Polyb. l. 6. That the Cities and Territories should be the Aetolians but the Prisoners and all Moveables should be granted to the Romans To the ancient Latines the Romans gave a third part of the spoil as Pliny testifies And proportionable to the succours sent the free Towns of the Switzers received their share of the spoil as Simler relates Paruta l. 8. In a War against the Turks the Pope the Emperor and the Venetians divided the spoil according to their respective charges that they had been at in making the War And Pomponius gratified Deiotarus King of Galatia with the lesser Armenia because he had been his Companion in the War against Mithridates St Ambrose upon the Story of Abraham Lib. 1. de Abra demonstrates the equity of this custom Abraham saith he perhaps thought it but just that they that came up to his assistance in that War should likewise partake with him of the spoils as being the reward of their labour But as to Subjects an example we have in the Nations of the Jews Numb 31.27 where God commands Moses to divide the spoil of the Midianites into two parts that is between them that undertook the War and went out to Battel and between all the Congregation And in ver 47. he subdivides that part which belonged to the Congregation and gave the fiftieth part thereof to the Levites that had the charge of the Tabernacle Thus David divided the spoil taken from the Amalekites equally between them that went down to Battel and them that guarded the Stuff Sometimes the Jews would divide the spoil 1 Sam. 30.24 and grant half to the Souldiers and as to the other part they admitted the maimed the Widows and the Orphans to have share with them So we read of Alexander's Souldiers 2 Mac. 28.30 that they always challenged the spoil taken from private men unto themselves only the most precious things they reserved and presented to the King Wherefore we find them accused for robbing the publick Treasury who had conspired to assume all the prey taken at Arbela to themselves so as to bring nothing to the Treasury But yet those publick things that belonged to the enemy or to the King against whom they fought were exempted from this Licence Thus it was with the Macedonians when they brake into Darius's Camp they carried away an infinite Mass of Treasure leaving no place unrifled but the Kings Pavilion only it being a custom received amongst them as Curtius notes as well as amongst most Nations to receive the Conquerour in the Pavilion of the conquered The custom of the Hebrews was not much unlike this of the Macedonians 2 Sam. 12.30 For they always set the Crown of the vanquished King upon the head of the Conqueror assigning all the Furniture of the Kings Palace or Pavilion unto him as his share of the spoil And amongst the Acts of Charles the Great we find that having conquered the Hungarians Whatsoever was taken from private men he gave to the Souldiers but what was the vanquisht Kings was brought into the Emperour's Treasury The Grecians distinguished them by their several names calling the publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the private 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as also they did those taken in the Battel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but those taken after Battel being publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which distinction was afterwards approved of by other Nations But it is plain by what hath been already said That the Romans during their ancient Commonwealth did not allow to their Souldiers so much yet they began to be more indulgent to them in their Civil Wars Thus you may read Aequilanum given to the Souldiers for pillage by Sulla And Caesar after the Battle of Pharsalia gave Pompey's Camp to be pillaged by the Souldiers with this Complement superest pro sanguine merces Quam monstrare meum est nec enim donare vocabo Quod sibi quisque dabit For loss of bloud a recompence I 'll make Not what I 'll give but what each man shall take And in another Civil War the Flavians being led against Cremona App. Civil 1. made all the haste they could the Night approaching to storm the City lest the pillage thereof should fall unto their Commanders and Legates having it seems been sufficiently instructed by Tacitus Tacit. Hist 3. Expugnatae Vrbis praedam ad militem deditae ad Ducem pertinere That the Plunder of a Town if stormed belonged to the Souldiers but if surrendred unto the General Ne manente periculo omissis hostibus praeda manus impediret quòd plurimas saepe Victorias corrupit Sub Corona But
Souldiers to satiate their anger with the bloud of the Conquered VII Even Enemies deserving death may be sometimes pardoned Yea though in strictness of justice they have deserved death yet oft-times it is more agreeable to the Goodness Modesty and Magnanimity of a Conquerour to forgive than to revenge Of this mind was King Theuderick in Cassiodore Those Wars have always succeeded well to me saith he which have ended moderately for he can never want the victory that knows how to use it with temperance and clemency Salust ascribes the prosperity of the Romans and the greatness of their Empire â—ib 2. c. 41. to nothing more than to their promptness to forgive And it was the advice of Tacitus Quanta pervicacia in hostem Annal. l. 12. tanta benificentia adversus supplices To shew as much love and kindness to poor suppliants as courage and resolution towards Enemies Yea and Seneca tells us That the most generous of Beasts did disdain to tear and prey upon things vile and abject Elephants and Lyons scorn things that are prostrate and pass by what they have overcome Lib. 4. The Author to Herennius hath an excellent saying to this purpose Our Ancestors saith he did very wisely observe this custome never to put any King to death whom they had taken in War but why because saith he it would seem unreasonable to use that power which fortune hath now given us to destroy them whom the same fortune not long before had so eminently favoured And why should I now punish them because they have led their Armies against me This having now got the victory I am willing to forget Quia viri fortis est qui de victoria contendant eos fortes putare qui victi sunt eos homines judicare ut possit Bellum fortitudo minuere Pacem humanitatis augere Because it is the part of a valiant Commander to esteem men as Enemies whilst they are able to contend for victory but being overcome then to pity them as men that so valour may end the War and humanity confirm the Peace But you will haply say what if he had overcome you would he have done so wherefore then should you spare him I answer Quia talem stultitiam contemnere non imitari consuevi Because it is my custome to contemn and not to imitate such folly Now if this Author did mean this of the Romans which is very uncertain because he intermixes many strange and indeed Romantick stories with some true ones it manifestly contradicts that which we read in the Panegyrick of Constantine the Son of Constantius He acts the part of a prudent man who having conquered Rebels can bind them to himself by a free pardon but he of a valiant man who having vext them can trample upon them Thou hast revived O Emperour that ancient confidence of the Roman Empire who triumphed in the death of those great Commanders whom they had taken in the War for in those days their Captive Kings after they had graced their triumphs by attending the Conquerours Chariot from the Ports to the most publick place of the City as soon as he turned his Chariot towards the Capitol were hurried away to Execution Only Perseus upon the intercession of Paulus Aemilius to whom he had yielded himself escaped the severity of this custome but the rest having their eyes put out remained for ever after in Chains teaching thereby other Kings rather to preserve their faith and friendship with the people of Rome than to exasperate their justice But these things are written somewhat too loosely Josephus in his History concerning the death of Simon Bar-jorae testifies the same severity of the Romans but he speaks it of such Captains and Commanders only as was Pontius Samnis but not of such as carried the titles of Kings whose words sound thus The conclusion of the triumph was after that the triumphant Chariot was come to the Capitol for there by the Ancient custome the Conquerour was to stay till tidings were brought of the death of that great Commander whom he led in triumph who having an halter cast about him was presently drawn into the Market-place his Keepers whipping him forward for in that place by the custome of the Romans such as were condemned for Capital crimes were put to death and there executed So soon then as it was declared unto the Emperour that his Enemy was dead they immediately proceeded to perform all other the Rites that were in those cases provided very joyfully Orat. in Ver. The very same ceremonies doth Cicero also recite in his Oration concerning Punishments Concerning great Commanders thus Executed Histories afford us examples enough and some few of Kings also as of Aristonicus Jugurth Artabasdus I should be loth to revive this obsolete custome Jos Ant. l. 5. c. 1. Dion yet we read that Joshua put to death those Kings that he took Captives And Dion relates of Sossius That he whipt Antigonus with rods after be had fastned him to his Cross But withal the same Historian wisely adds Which no King ever suffered by any of the Roman Conquerours The same History we may also read in Josephus Ant. l. 15. Eutropius likewise records it of Maximianus Herculius that having slain the Francks and Almains and taken their Kings Captives He exposed them to be devoured by wild Beasts So doth Ammianus concerning a King of the Almains who being taken Captive was crucified Yet even among the Romans there were divers Kings besides Perseus that escaped the severity of that custome as Syphax Gentius Juba and in the time of the Caesars Caractius and others Whence it may appear that the Romans though as Cicero and others blame them for being too severe in this case had always some respect both to the causes of the War and also to the manner of its prosecution when they thus punish'd them And therefore it was no ill advice that M. Aemilius Paulus gave to the Roman Senate in the case of Perseus Si nihil humani metuerent at divinam vindictam timerent iis imminentem qui victoriâ insolentius utuntur Though they stood not in awe of any humane power yet they should do well to fear the anger of the Gods who never failed to avenge themselves on those who abused their favours with too much pride and insolency Plutarch in the life of Agis observes that in the Grecian Wars such reverence was born unto the office and dignity of a King that their very Enemies durst not offer violence to the Lacedemonian Kings An Enemy therefore that considereth not what humane Laws permit to be done but what in equity he ought to do or what Religion and Piety requires to be done forbears the shedding of the blood even of his Enemies neither will he sentence any man to death unless it be to preserve life or livelyhood to himself or for such personal crimes as by the Laws of God or Man deserve death yea and though some
was not according to the custom of the Grecians The like we read of Thucydides Ye did accept of us who willingly and with lifted up hands begged to be received to mercy and it is not the custom of the Grecians to kill such The Syracusian Senators in Diodorus tell us That to spare a Suppliant is the sign of a truly noble and magnanimous spirit And Sopater confesseth That it was the custom of the Grecians to save such as begged for life in the Wars In Towns that were besieged this custom was generally observed by the Romans That if they yielded before the Battering Ram toucht the Walls the lives of the Citizens were saved Caesar signifies to the Advatici That he was willing to preserve their City in case they would surrender before his Ramms approached their Walls Which custom is yet observed with this difference In places meanly fortified before the Cannons begin to batter but in places of great strength before a breach be made in their Works Howbeit Cicero respecting not so much what may lawfully be done as what in equity ought to be done gives his opinion in this Case thus Seeing that we ought to provide for the safety of those whom we conquer it is fit that we receive them into protection who shall surrender themselves though our Ramms have battered their Walls The Jewish Interpreters note That it was a custom among their Ancestors when they had laid close Siege against any Town not to incircle it with a Ditch quite round but to leave one part thereof open for such to fly as would save themselves by flight whereby the Town might be taken with the least effusion of bloud Thus Scipio Aemilianus being commanded to destroy Carthage made Proclamation That they that would provide for their own safety by flight might do it freely as Polybius testifies XV. They also that surrender without condition The same equality bids us to spare those who are willing to surrender themselves to the will of the Conquerour without any Conditions at all Trucidare deditos saevum To kill those who are at our mercy is cruelty saith Tacitus †Tac. Lib. 12. Bello Jug lib. 1. de Rep. ord So also Salust rehearsing that bloudy fact of Marius in putting to death those young men among the Campsans that had delivered themselves to mercy saith That it was facinus contra Jus Belli A cruelty scarce justifiable by the natural Right of War And in another place he complains of the like cruelty saying That he was so far transported with rage that he put to the Sword not only men armed and such as were in Battel which he might do by the Law of Armes but even Suppliants also that begged for mercy So also Livy Qui deditis contra Jus ac fas Bellum intulisset He made War even against those that yielded themselves contrary to the Laws of God and good men Nay the principal design of a General should be rather to force his enemy through fear to surrender than to kill them And herein is Brutus to be commended who would seldom fall on his enemy by assault but chose rather to encompass them with his Horse commanding his Souldiers to spare them who e're long would be his own XVI Unless some very great crime do hinder Against these Rules of natural Right and Equity are usually brought these specious Exceptions which notwithstanding have little of solidity in them as namely What if such acts of cruelty be done by way of retaliation what if they be done by way of example to deter others or what if it be done against such as have been notoriously obstinate None of these are sufficient to justifie an unnecessary or an unjust Slaughter as is easily to be collected by what we have already written concerning the just causes of killing Enemies For from Captives and such as actually deliver themselves or desire so to do there can be no danger That therefore they may justly be put to death there ought to precede some such crime as to an impartial Judge should deserve death And thus we may haply read of cruelty sometimes used unto such as have either been taken Prisoners or yielded without Conditions of life if being convicted of the injustice of the War they have still persisted in Armes or if they have reproached or defamed the Conquerour with bitter invectives or have broken their faith or somewhat of the Law of Nations as the priviledges of Ambassadours or have been Traitors Renegadoes or the like But as to the Objection of retaliation Nature doth not admit thereof unless it be against those numerical persons who have done the wrong Neither will it suffice to say That the Enemies do all of them make but one Body by their combination against us as may easily be gathered by what hath been already said when we treated concerning the communication of punishments For as we read in Aristides Is it not a shame to imitate that as just which we condemn in others as unjust Upon which account it was that Plutarch blames the Syracusians for putting to death the Wives of Hicetas Plut. Tim. Dion and his Children for no other cause but because Hicetas had before put Dion's Wife his Sister and little Son to Death But as to the profit which may hereafter be expected by putting a terrour into others Terror this gives no positive Right to put any man to death that yields himself Prisoner But if there be just cause of death before given this may be one cause amongst others why the punishment due may not be remitted Again an obstinate endeavour to maintain our own Party if our cause be not altogether unjust or dishonest doth not at all deserve punishment Goth. lib. 1. as the Neapolitans argue in Procopius or if it do surely that punishment cannot amount to death if equity may be the Judge When Alexander had commanded all the Youth in a certain Town to be put to death because they defended it so resolutely against him Polyan Lib. 4. the Indians told him That he made War like a Thief or a Murderer Latronum more bellare Indis visus est saith the Authour whereupon to preserve his own honour he ever after used his Victories with more clemency Much more for his honour it was that he would have spared some Milesians because he perceived them to be very generous and faithful to their own Party as Arrianus records When Phyto the Praetor of Rhegium was dragged out to tortures and death because he had resolutely defended his City against Dionysius as they dragged him along he cried out That the Tyrant had thus punished him for no other reason than because he would not betray the City to him For which cause the Gods would certainly revenge his death upon the Tyrant within a short time Such punishments as these Diodorus calls unjust For mine own part I am highly pleased with that wish of Lucan's Vincat quicunque
late to help it This in all Cities is observed as an Oracle That in times of Peace they ever provide for War and in times of War they lay the foundations of a firm and lasting Peace we should neither place too much confidence in our friends because they may prove our enemies neither should we appear too diffident of our enemies because they may hereafter prove our friends But if the hopes of our enemies conversion cannot prevail with us to do them civil offices yet let us remember That there is no hostility at all against us in those things which an enemies Country produceth For all things there are serviceable all things profitable all things pleasureable or very necessary to our selves All its fruits affording unto us either nourishment or somewhat that is equivalent unto it Again Non opportet Bellum inferre Belli nesciis We ought not to make War upon those things that are so amicable so innocent that they know not what War means To burn cut down and utterly to extirpate those things which Nature by heat from above and moisture from beneath hath so tenderly brought up and nourished to no other end but to pay their yearly Tribute unto men as unto Kings savours of too much inhumanity Thus far Philo wherewith agrees that of Josephus If Trees saith he could speak they would certainly upbraid us with injustice for inflicting upon them the plagues and miseries of War who are in no wise guilty of the causes thereof Neither hath that Saying of Pythagoras any other ground than this where he tells us That to cut down or to hurt tender Plants or Trees that bear Fruit is a sin against Nature and not justifiable before God De non edendis lib. 4. Porphyry likewise describing the manners of the Jews taking as I suppose their Customs to be the best Interpreters of their Laws extends this Custom or Law to all Beasts that are serviceable for Tillage Their Talmuds and their Interpreters do yet stretch out this Law somewhat farther even to all things that may causelesly perish as the firing of Houses the poysoning of Springs or the spoiling of any thing that may afford nourishment to Mankind unless it be such Trees or Houses as being near unto the Walls may thereby hinder Souldiers in the performance of their Military Duties Agreeable with this Law was that prudent moderation of the Athenian General De Repub. l. 5. Timotheus Who would not suffer his Souldiers to destroy any House or Village nor cut down any Plant that bare Fruit. There is the like Law extant in Plato prohibiting the laying of any Lands waste or the demolishing of any Houses And if we may not waste the Country of an Enemy much less when by Conquest we have made it our own Offic. l. 1. Cicero did not approve of the demolishing of Corinth though the Citizens had unhandsomly treated the Roman Ambassadours And in another place he calls that War an ugly Pro domo sua horrid and malicious War that was made against Houses Walls Pillars and Posts Livy highly commends the lenity of the Romans for that having taken Capua Lib. 26. they did not pull down the Walls nor set on fire the innocent Houses There is a most excellent Epistle upon this Argument extant in Procopius which Belisarius writes to Totilas It hath been saith he reputed in former Ages the Glory of wise men to raise fair and magnificent Structures to preserve their Names and Memories but to rase and demolish them being built was ever esteemed the badge of folly and madness as not blushing to transmit to Posterity the Monuments of their own vileness It is confest by all men That Rome is the most magnificent and beautiful City of all that the Sun beholds Neither did it arise to this height of splendour by the bounty or industry of any one man or in few years but many Kings and Emperours and a vast series or succession of Noble-men many Ages and a stupendious Mass of Treasure have drawn hither as other things so the most expert Artificers in the World whereby having by little and little brought this City to that perfection wherein we now see it they have bequeathed it to future Ages as an everlasting Monument of their Vertue and Magnanimity wherefore to rase this City were to be injurious to Mankind in all Ages to our Ancestors in sacrilegiously burying in its Ruines the memory of their noble Acts to our Posterity enviously depriving them of the very sight of those noble Structures whereby they may be excited to the imitation of their Vertues And if it be thus then consider that one of these two must necessarily fall out either the Emperour must vanquish or you If you be Conquerour then in destroying this City you destroy not what is your Enemies but your own and in preserving it you enjoy the richest and most beautiful place on the Earth But in case thou be worsted thy clemency in preserving this great City shall plead strongly to the Emperour for mercy but in destroying it all hopes of favour lye buried in the ruines of it and thou shalt not only lose whatever thou canst gain by the Spoil but an eternal brand of shame and infamy shall cleave unto thy Name throughout all Ages according to thy dealings herein For fame is equally ready to report either good or evil of us Potentum quales sunt actiones talis existimatio According to the lives and actions of Grandees so is their fame to the Worlds end Thus far Procopius It is true Josh 6. 2 Kings 3.19 that God himself in the sacred Scriptures did not only command that some Cities should be destroyed by fire but also that the Trees of the Moabites contrary to this General Rule should be cut down But this was not done out of an hostile malice but out of a pure detestation of their sins which were either publickly known to deserve such a punishment or at least were so reputed in Gods account III. If there be great hopes of Victory Secondly We should forbear to waste an enemies Country where the possession of it is in question especially if there be any probable hopes of a speedy Victory whereby both the Land and the profits thereof are likely to become the reward of the Conqueror So Alexander the Great as Justine tells us prohibited his Souldiers from depopulating Asia telling them That they ought rather carefully to preserve their own and not to destroy that which they came to possess Thus Gelimer with his Vandals besieging the City Carthage Proc. Vand. 2. made no spoil nor took any pillage but secured the Country to himself as his own The like Speech I find in Helmoldus Nonne Terra quam devastamus nostra est Lib. 1. c. 66. Is not the Land that we waste ours and the people whom we destroy our Subjects Wherefore then are we become Enemies to our sâ—lves wherefore do we drive away those
Captivis who being first taken by Robbers did afterwards escape unto the Enemy namely That it was true that he was taken away Aegid Regius de Act. supern dist 31. dub 7. n. 122. neither was his having been amongst Enemies nor that he did return back by Postliminy any impediment unto him as to that thing The very same Answer from the Law of Nature may serve concerning him who being taken in an unjust War and afterwards either in a just War or by some other means comes under the power of another For as to that which we here call internal Right there is no difference between an unjust War Can. 10. and Piracy or Robbery And according to this opinion did Gregorius Neocaesariensis frame his Answer being consulted with concerning the Goods of some of his Citizens which after they had been taken away by the Barbarians were received by some of the Inhabitants of Pontus II. Examples Wherefore things so taken ought in honesty and conscience to be restored to their first Owners as being unjustly taken away which we see frequently done Livy having declared how the Volsci and Aequi had been conquered by Lucius Lucretius Tricipitinus saith Lib. 3. That the spoil was brought and exposed to publick view in the Field of Mars that every man might within the space of three days find out his own and take it away Lib. 10. The same Livy in another place having related the Victory got over the Volsci by the Dictator Posthumius tells us That he restored a part of the spoil to such as knew their own of another part whereof he made Portsale And elsewhere he tells us That two days were allowed for every man to come in and to lay claim to his own Goods And in another place Having recited the joyful Victory which the Samnites got over the Campanes wherein there were taken seven thousand four hundred of them Prisoners and a very great Booty from their Associates He likewise tells us That the right Owners were summoned by Proclamation to come in by a certain day to find out and receive back their own Goods The like fact he records of the Romans For the Samnites endeavouring to possess themselves of Interamna a Colony of the Romans but not able to keep it having plundered the City and depopulated the Country and driving away before them an infinite number of Men Cattel and other things fell unexpectedly into the hands of the Roman Consul in his return from Luceria who recovering the spoil and pursuing the Samnites with great Slaughter at last exposed all he had got to open view sending out his Edict That every man might come in and receive his own The same Authour speaking of the Prey taken by Cornelius Scipio at Ilippa a City in Portugal saith All which being exposed to view before the City every man had leave granted to search out and take away what was his own the rest was delivered to the Questor to make sale of which was presently done and the money divided among the Souldiers So again after the Battel fought by Titus Gracchus at Beneventum Lib. 24. The whole Prey except the Prisoners was divided among the Souldiers but the Cattel were preserved which the right Owners had liberty given them within thirty days to find out and to recover The like doth Polybius record of L. Aemilius Who having conquered the Gauls Hist l. 2. restored all the spoil to them from whom it had been taken The very same doth Plutarch Plut. Apotheg Appian Puni Appian and Diodorus testifie of Scipio the African who having taken Carthage â—â—funded their many rich Presents which the Carthaginians had taken from the Cities of Sicily and elsewhere and brought thither With whom agrees Valerius â—â—aximus concerning the same Scipio Lib. 1. c. 1. n 6. Whose humanity saith he was such that having taken Ca thage he sent Letters to all the Cities of Sicily Orat. Ver. That they might by their Ambassadours receive back all the Ornaments of their several Churches which the Carthaginians had taken from them which he desired them to take care of and to set them up in their former stations The like testimony doth Cicero give of him The Carthaginians saith he did formerly possess themselves of Himera one of the beautifullest and best adorned Towns in Sicily Scipio esteeming it an act worthy of the Roman People took care that the War being ended and Carthage taken all the ancient Ornaments taken at any time from the Sicilians should be restored unto them Lib. 37. Thus did the Rhodians restore four Ships to the Athenians which they had recovered from the Macedonians who had formerly unjustly taken them from the Athenians So likewise Peneas the Aetolian Lib. 31. as Livy records it thought it sit that all that before the War began had been the Aetolians should be restored unto them which Titus Quintius did not deny Lib. 33. had the demand been only of Cities taken in War and had not the Aetolians first broken the Laws of friendship Nay even those Goods that were at first consecrated to the Temple at Ephesus Strab. l. 13. which afterwards their Kings made their own the Romans caused to be restored to their former condition III. Whether any thing may be deducted But what if such Goods so taken shall come unto us by way of Commerce may we not charge him from whom they were taken with so much as they cost us We may as we have already said * Lib. 2. c. 10. § 9. so far forth as the recovery of the possession of things so desperately lost would probably have cost him from whom they were taken And if the charges may be required of him why may not our labour and peril also be valued as if a man should recover some precious Jewel of another mans out of the Sea by diving unto the bottom Very pertinent unto this is the Story of Abraham's return from the Conquest of the five Kings Reduxit omnes illas res He brought back all those things Gen. 13.16 Vers 20 21 22 23 24. saith Moses i. e. which the Kings had taken away Neither can we refer that Offer which the King of Sodome made unto Abraham of restoring the men and detaining the Goods to himself to any other cause than this That those Goods should be the reward of his pains and peril But that Abraham refused to take any thing to himself of the Prey was an Argument of his no less piety than magnanimity which was very well observed by Jacchiades on the fifth Chapter of Daniel Nevertheless of the things so recovered Dan. 5.17 he gave the tenth to God as being due to himself by the reason of his necessary charges and some portion thereof he was willing should be given to his Companions St Ambrose speaking of this generous fact of Abraham saith The reward which he refused from men he received from God And Sulpitius speaking
we make not the act void Thus the old Pimp in Terence Leno sum fateor Pernities communis Adolescentûm Perjurus Pestis tamen tibi à me nulla est orta injuria A Bawd I am Youth 's Common Pest 't is known Perjur'd yet wrong by me Thou hast had none It was no ill Plea then that Nabis in Livy made when his tyranny was objected against him by Quintius Flaminius Concerning the name Tyrant I answer That whatsoever I am I am the very same I was when thou O Titus Quintius entredst in League with me And by and by These things whatsoever they are I did when ye contracted friendship with me Whereunto he presently adds Si quid ego mut âssem mihi inconstantiae meae cum vos mutetis vobis vestrae ratio reddenda est If I had changed I ought to have given the reason of my inconstancy but seeing it is you that change you ought to give the reason of yours Not much unlike unto this is the Answer that Pericles in Thucydides gives unto his Subjects Our Confederates we shall permit to enjoy their own freedom and to live by their own Laws if they did so when they first entred into League with us IV. Fear not to be objected if the Promiser were not himself affrighted Another Objection may be made which I have heretofore hinted * Lib. 2. c. 11. § 7. namely That he that by fear hath extorted a promise ought in Justice to release the Promiser as having by his injustice damnified him that is by such an act as is repugnant both to the nature of humane Liberty and to the nature of the act it self for all promises that bind ought to be free This though in some cases true yet is not to be extended to all promises that are made to Thieves for that the Promised be bound to free the Promiser it is requisite that he to whom the promise was made should have extorted the promise by an unjust fear But in case a man shall come and promise to pay the ransome of his Friend and thereby deliver him out of Bondage he is bound to perform it because there was no impression of fear upon this man who in the behalf of his Friend came voluntarily to make this Contract V. What if the promise were bound by Oath Whereunto we may add That he that is compelled even by an unjust fear to make a promise may be obliged to perform it if he confirm that promise with an Oath for thereby as we have shewed before he stands bound not unto men only but unto God against whom no exceptions can be admitted But true it is notwithstanding That by such a sole promise though confirmed by Oath the Heir of the Promiser stands not obliged for those things only descend to the Heir which by the original Right of Dominion may pass from man to man in ordinary Traffick But those things that are due unto God cannot as such be included amongst these Moreover here we must again repeat what we before delivered Lib. 3. c. 4. §. 10. That if a man do haply break his faith with a Thief whether sworn or unsworn he shall thereby incur no punishment amongst other Nations For generally all Nations in detestation of these men whom they account as common enemies to humane Society are pleased to connive at whatsoever is though unjustly done against them VI. This applied to Subjects that make War But what shall we say concerning the War that Subjects make against their King or against such as have the Supreme Authority Though they may haply have a cause not in it self altogether unjust yet that they can have no Right to act by force against their Prince we have elsewhere shewed * Lib. 1. c. 4. But yet it sometimes so happens That either their Cause is so notoriously unjust or their obstinacy in resisting so great that it may be severely punished But yet if they be treated with as Rebels or Traitors and therein any promise made unto them the punishment though justly due for their Treason ought not to be pleaded in Bar to the performance of that promise For such was the piety of the Ancients that they durst not break their faith no not with their very Slaves as may appear by the Lacedemonians Aelian 6 7. who were generally believed to have been justly punished for putting their Tenarensian Prisoners to death contrary to their Covenants And it is likewise observed by Diodorus Lib. 11. That the faith given to Slaves in the Temple of the Palici was never broken by any of their Lords Neither will any exceptions of fear be allowed of in this Case if the faith given be by Oath confirmed as we may collect from M. Pomponius the Tribune of the People Sen. de benef l. 3. c. 37. who being bound by Oath punctually performed what he had though compelled by fear promised to L. Manlius VII Of Promises made by Sovereign Princes unto their Subjects But a greater difficulty than any before mentioned may arise from the Legislative Power and from that supereminent Right of Dominion which every City hath over the things of their Citizens and which is exercised in its name by him who hath the Supreme Power therein Which supereminent Right if it extend it self to all that is the Subjects why should it not likewise unto that Right which ariseth from any promise made in War Which being granted then it should seem that all such Promises and Agreements may be null'd and so all hopes of concluding a War unless by Victory would be lost But on the contrary we must observe That this superlative Right is not fit to be put in execution promiscuously at all times but so far forth as it is commonly expedient to the preservation of the publick safety in a Government not Tyrannical but Civil yea even Regal But for the most part it is commonly expedient That all such Promises and Agreements should be fulfilled Very apposite to this purpose is that which we have already written concerning the defence of the present Government adding thereunto That where the publick safety requires that this Sovereign Right should be made use of satisfaction ought to be given out of the publick to such particular persons as shall be thereby damnified as shall be hereafter more fully explained VIII That such promises may be confirmed by the Oath of the City Moreover Agreements may be confirmed by Oath and that not by the King or Senate alone but by the whole Body Politick as Lycurgus bound the Lacedemonians and Solon the Athenians by Oath to observe the Laws they had given them And lest the change of Citizens should in time relax the binding power of this Oath and so at length it be forgotten or left arbitrary this Oath may be every Year renewed which if done the Citizens could by no means recede from their Engagements no though it were for their publick profit For a City hath
his Kingdom I know not but yet such the case may be that such a King hath no power to alienate any part thereof as if he received the whole as his propriety upon this condition that he should not divide it But as concerning those things which are called the goods of the Kingdom these may also become the Kings Patrimony two ways either as separable from the Kingdom or as inseparably united unto it if this latter way they may be transcribed See Bo. 2. ch 15. but not unless with the Kingdom if the former they may be alienated without it But such Kings whos◠Kingdoms are not patrimonial can hardly be permitted to alienate the Goods of the Kingdom unless it evidently appear by some Primitive Law or by a continued and uninterrupted custome that they may do it VI. How far the people and successors are obliged by a Peace made by the King But how far forth the promise of a King shall bind his Subjects and Successors hath already been declared * See Bo. 2. ch 3. §. 10 c. namely so far as the power obligatory is comprehended in that Government which should be neither infinite nor impaled within in too narrow bounds but to extend so far only as in probable reason it shall be found convenient But in case the King be absolute Lord * See Bo. 3. ch 8. §. 2. over his People as having at his own charge conquered him and so holds them under a Government merely Despotical and not Civil or if he have gained the Dominion not over their persons but over their things as Pharaoh bought all that the Aegyptians had for Corn or as they that admitted of Strangers into their Houses to whom they prescribe what Laws they please if I say the Government be thus absolute then it is another thing For in this case besides that Right which is regal there is an access of another Right which makes that justifyable which a bare regal power could not VII What power a King hath over his Subjects goods to the making of Peace But here there usually ariseth another Question namely What Right Kings have over the Estates of private men in order to the establishing of Peace as having no other Right to that which particularly belongs to his Subjects than what he hath as a King That the things belonging to Subjects are under the supereminent power of the Commonwealth whereof they are a part we have already proved so that that Common-wealth or he that exercises the supreme power in it hath a Right to make use thereof either by even destroying them or by alienating them and that not only in a case of extreme necessity which is even between private men justifyable but when it extends even to the good of the publick which is always to be preferred before any private mans by the general consent of those who first entred into civil society Which notwithstanding is so to be understood that the whole Commonwealth is obliged to repair the damages that shall befal any of her Subjects or Citizens by reason of any such spoil or alienation out of their publick stock or by a publick contribution whereunto even he who hath sustained the loss shall if need be pay his proportion Neither shall that City or Commonwealth stand discharged from this obligation although at present it be not able to satisfie it for whensoever that City shall be enabled this sleeping obligation may rise up against it VIII But what if the things be already lost by War Neither can I here generally admit of the opinion of Vasquius namely that the City is not obliged to repair the damages of her Citizens sustained by the War because such damages are by the licence of War permitted For this Right of War hath only respect to the People of several Nations as we have elsewhere explained it * Bo. 3. ch 6. §. 2. and partly to such as were in open hostility amongst themselves but not to Citizens amongst themselves who being mutually associated and equally engaged in the defence of their City should in equity esteem every mans to be the common loss But yet doubtless it may by the Civil Law be so ordained that no Action shall lye against such a City for any damages sustained by the War to the end that every man may be the more watchful and resolute to defend his own IX No difference between things got by the Civil Law and things got by the Law of Nations Some there are that place a vast difference between those things which belong to Subjects acco ding to the Law of Nations and those things which are theirs by the Civil Law gra ting a larger Right to the King in taking away these without either cause or recompence but not so in the former but erroneously For a Right of Dominion however lawfully gained hath always by the Law of Nature its proper effects that is to say that it cannot be taken away unless it be for such causes as are naturally inherent in Dominion it self or such as arise from some fact done by him that is the right owner X. What is done by a King is taken by Foreigners to be done for a publick good Now this care and inspection that the things of private persons be not alienated unless it be for a publick benefit appertains to the King and to the Subjects as that of repairing of damages doth to the City and each particular Citizen For the bare fact of the King is sufficient to Strangers that contract with him not only in respect of the presumption which the Dignity of his person brings with it but also in respect of the Law of Nations which permits the Goods of Subjects to stand obliged by the fact of the King XI A general rule for the interpreting of Articles of Peace But as to the right understanding of the Articles of Peace what we have said before must here also be observed * See Bo. 2. c. 16. §. 12. The more of grace and favour any Article contains the more extensively it should be taken and the more of rigour it hath the more restrictively it should be understood If we look at the bare Law of Nature the greatest favour that can be granted seems to be this That every man should enjoy his own wherefore where the Articles are ambiguous such an interpretation should be admitted as may lead us to this sence That he that undertakes a just War should receive what he fights for together with his costs and damages but not that he should get any thing more by way of punishment for this savours of rigour which ought to be restrained But because a bare acknowledgment of wrongs done seldome procures a lasting Peace therefore in Articles of Peace such an interpretation should be admitted as may according to the justice of War make the ballance on both sides even which may be done two ways either by an equal composure of
whether by force or fraud justifiable page 437 438 Protectorship in the minority or disability of Kings to whom page 44 Protection takes not away Civil Liberty 49. it doth not always argue subjection 50. due to the oppressed but not to wilful Malefactors page 496 Provocation to sin wbence 379. causes of restâ—â—â—niâ—g ibid. Prudence â—onversant about things indifferent called the Tree of Knowledge of good and evil 79. a Vertue proper to Princes Justice to men as men page 418 419 430 Prudential Rules guiding us in the choice of things good page 430 Pupils not bound to pay Debts unless they gain by what they borrow page 147 Publick Good preferred before private page 56 Publick Remonstrances forbidding the importation of Goods before they can be made Prizes page 436 437 Publick profit preferred before honesty confuted Pref. x Publick safety consists in well commanding and well obeying page 57 Publick things distinguisht from things common page 89 Punishment of Kings what page 41 Punishment what 362. the Cure of wickedness ibid. proportionable to the Crime ibid. sometimes publick when the sin is secret ibid. how said to be due page 363 To Punish all sins equally unjust page 362 Punishment to what end ordained 363 365 all refer to the time to come 364. Not as sweet to the Punisher but profitable to the Punished ibid. God punisheth sometimes to shew his power and merely for revenge ibid. To Punish the incorrigible with death better than to suffer them to live page 366 To Punish any man hath a right naturally that is himself innocent page 367 By Punishment what benefits accrew page 368 Of Punishments exemplary ibid. All Punishment not remitted to the Penitent Objections answered first from Gods Mercy page 372 Punishments not all Capital 376. not necessary when the end may be attained without it ibid. may be remitted both before and after the penal Law be past page 376 377 Of Punishments some may be remitted some severely exacted some may be either page 376 From Punishment some Causes exempt Offenders page 377 Punishments should be proportioned to merit 378. do not always argue civil Jurisdiction 385. vary according to the capacity of the Offender to judge between good and evil page 380 381 Beasts properly not punishable page 401 Punishment by bare Counter-passion rejected page 381 In Punishing regard to be had to the quality of the person punished ibid. no acceptation of persons ibid. The Punishment of Cattle stolen out of the Field or out of the House ibid. Punishments ought to be milder than the Laws 382. exemplary upon such only as are incorrigible ibid. Of Punishments a man may partake by reception of Malefactors 395. and how otherwise page 393 Punishment of individuals is death of Cities Desolation 399. communicated between Bodies politick and its Members how far ibid. How a man may be involved in the Punishment that is not partaker of the Crime with some Cautions page 400 For what the major part decrees the minor dissenting are not Punishable page 399 None Punished properly for the sin of another page 401 Punishment for publick injuries may be exacted at any time during the Offenders life 400. may be remitted or mitigated for some preceeding Merits page 417 Punishment better remitted than exacted by War especially by injured Kings page 416 417 When Punishments are tacitely remitted page 570 In Punishments the measure whence collected page 379 In Punishments retrospection to be had to our former lives ibid. Punishment once due may at any time be exacted page 399 All Punishments if great have somewhat of Justice in them but somewhat also that is repugnant to Charity page 376 The Purpose and intention only sometimes punished page 383 Q. QUalifications natural transfer no right page 368 A Question put if in the whole it cannot be assented unto it must be discust in parts page 114 The Quarrel is begun by him that provokes it page 499 R. RAbirius perfidiously dealt with by Marius page 565 Ransome agreed binds though the Prisoner be of better quality than was supposed page 562 The Ransome of Prisoners vary page 523 Redemption of Captives much favoured amongst Christians 561. whether it may be lawfully forbidden page 562 Ransome whether chargeable upon the Heir ibid. A Rape committed in the Feild and in the City the difference page 75 Ravishment whether in War lawful 463. the most civilized Nations restrain it 464. against it no Law extant before Moses page 110 Reason adequate what it operates 408. the foundation of Law 6. natures best guide page 11 The Reason of the Law directs us to the meaning of it 192. none so readily obey as he that knows the reason of the Law ibid. The Reason of the Law not always the same with the meaning of the Law ibid. When the self same Reason justifies an extended signification of the words of a promise page 196 197 The Reception of Malefactors tolerated unless they are such as disturb the Peace page 398 399 550 551 The Reception of Exiles Fugitives and such as come to inhabit no breach of Peace page 550 551 Redemption of Captives much favoured ibid. The Redeemed how far bound to the Redeemer page 490 For the Redemption of Captives the consecrated Vessels sold page 561 Reformadoes what they may do by internal justice either in respect of themselves or their Prince 535. what Christian Charity requires of them ibid. Refuge Cities of what use page 397 Regal Power exercised by the Roman Dictators though not under the title of Kings page 41 Relief sent to a Town closely besieged to what it obligeth page 435 Religion mens chance not choice every Nation thinks his own best 389. in what sense it belongs unto the Law of Nations 387. it restrains both Prince and People 386. how necessary for humane society ibid. its foundation is to know God and his Providence 388 382. it depended among the Jews upon no other humane Authority than upon the King and Sanhedrim 59. in defence of our Religion and Liberty War lawful page 416 Religion freely left to the Conquered no prejudice to the Conquerour page 527 Religious places obnoxious to the licence of War 465. they ought to be spared page 515 To Remit punishments sometimes better than to exact them page 376 Renegadoes punishable when page 396 Rents not to be abated for a barren Year page 162 Renunciation of a Kingdom whether it prejudiceth the Children born or unborn page 124 125 131 Reparation for damages done primarily and secondarily 201. he that encourageth or commendeth a Malefactor is bound ibid. To Reparation how far an Homicide is bound 202. so for Mutilation loss of liberty Adultery Ravishment Robbery defrauding of the Kings custome ibid. The Principals and Accessaries how far bound to Repair damages page 201 To Reparation they are not bound that omit what in charity is due ibid. Reparation for damages done to Friends by Letters of Marque granted against Enemies whether due from the Grantors page 203
Representative Succession admitted by the Hebrews 124. when in doubt to be allowed of ibid. but lately admitted among the Germans ibid. Reprizals what 448. the Sea-Laws concerning them 435 436. their Right reacheth not to the Lives of such as are innocent 448. they may be taken when no War is denounced page 447 When the Right of Reprizals passeth to them that take them page 449 Concerning Reprizal their difference of the Civil Law and the Law of Nations and what persons and Goods are exempted page 450 Things taken without the Territories of either Party whether lawful Prize page 480 Res rapere Res reddere what page 456 Request of a Superiour in a League equivalent to a Command page 51 To Require things what it signifies page 453 Required what is before War be denounced page 452 Resistance of the supreme Power whether in extreme necessity lawful 54 55. disallowed by the Primitive Christians even to persecuting Emperours 57 58. unlawful by the Gospel 55. the opinion of Barklay concerning it 63. in what Cases lawful 59 60 justifiable by inevitable necessity by the example of David and the Maccabees 60. naturally lawful civilly not 53. and why page 54 Obstinate Resistance justifies not the killing of men internally page 508 Resistance in some Cases may be reserved in the translation of Kingdoms page 60 To Restitution who are obliged either by doing or not doing page 201 Restitution ariseth from Dominion page 146 No Restitution of things which are anothers if in Case they perish if in Case we use them thinking them our own 148. yet are we bound restore the profits if any be ibid. Restitution must be made of the things and profits 147. necessary to repentance 495. it must be made to the right Owner 147. not due in some Cases page 149 Restitution intended justifies not Rapine unless in a Case of absolute necessity page 149 Things bought or deposited may be restored to their Right Owner page 149 Restitution of things taken in an unjust War 528. what may be deducted 529. it must be to the full page 496 No Restitution of places or persons freely surrendred unless so exprest page 546 Of Restoring things after War some Cautions page 547 No Restitution in a just War sometimes by reason of the evil intention in its prosecution page 331 Restitution where the Câ—â—se of War is doubtful how to be moderated page 530 Restitution of things taken from the Enemy who held them unjustly page 451 452 To Restitution who are wholly and who in part bound page 202 Retaliation not to extend beyond the persons offending 461 539. agreeable to the Law of Nations 367. tolerated under the Law to avoid greater mischief 371. not to be exacted by Christians ibid. in what sense required by the Hebrews its use both amongst Hebrews and Romans ibid. Retreat sounding to kill an Enemy is homicide page 534 Return to the Enemy who may be said page 531 Revenge by retaliation naturally lawful page 366 367 Revenge whether agreeable to the Law of Nature 364. whether by the Law of Nature and Nations lawful 366. whether permitted to Christians how restrained 369 370 it differs not from injuries but in order only 364. taken with delight unnatural 370. in that it mitigates grief whence it proceeds page 364 To Revenge his own Quarrel every man hath a Right naturally 66. why now committed to Magistrates 370. not to go beyond the persons that injured us page 400 Reward for labour how encreased or diminished 162. to whom due if two at once fulfil the Condition page 196 The Reward promised to Thamar due by the Law of Nature not by the Civil Law page 154 A Reward demanded by a Souldier for killing his own Brother in the head of his Enemies Troops page 458 Right in War what 2. taken for a moral qualification of a person divided ibid. for aptitude or fitness 3. taken for a Rule or Law 4 divided into natural and voluntary ibid. Right reason a Rule infallible ibid. Right by the Law of Nations distinguisht from that which hath some effects of Right Pref. xv Right of Government distinguisht from the ill management of Civil Affairs page 41 Right distinguisht from Just 54. Right extreme sometimes extreme wrong ibid. What Right of Kings it is that Samuel describes page 54 What Right a Lord hath over his Slaves 115. whether it extend to death 116. over the Children of his Slave born in his house ibid. A Right a man may have to that taken from another page 122 Right acquired by Law 121. By the Civil Law none can right himself page 122 Right of a Father over his Children distinguisht into Natural and Civil 104. of an Husband over his Wife 104 105. of Societies over their Members page 114 By the Right of Nations many things claimed that are not thereby due page 134 The Right of Strangers not subject to the supereminent dominion of a King 178. nor of a Subject without Cause ibid. Right better lost than contended for sometimes 416 417. not to be extended to the full 434. when said to be denied 448. considered directly and indirectly page 434 A Right none can give that hath none 528. incorporeal gained by War page 486 The Right of War makes no distinction of Age or Sex page 459 The Right of the Sword in Histories sacred and prophane what page 17 Right distinguisht from its exercise page 52 The Right supereminent of Kings and States whether it can free them from the breach of Faith given to their Subjects page 539 Right external what 395. how differenced from internal page 453 The Right of Kings and States when by Peace said to be remitted page 547 The Right of Nations concerning inequality in Contracts page 164 Righteousness Judgment and Mercy how distinguish'd page 177 Rivers how held in propriety 89. the whole sometimes belongs to one Territory and none to another 95. as flowing streams common 82. but as the profit his that ownes the Banks ibid. changing their course whether they change the Bounds of the Territory page 94 A River in what sense said to be always the same page 141 c. Rome once the common City 525. regardless of Captives or Prisoners and why page 488 The Romans severe in their Victories 503. they anciently abstained from fraud in their Wars page 444 c. The Roman Empire in whom now 143. founded in the People of Rome page 144 The Romans claimed that to themselves which their Enemies took from others page 471 All the Roman Tribes disfranchized for ingratitude page 39 Roman Dictators absolute though temporary page 43 The Romans chuse their Emperour when residing at Constantinople page 144 The Roman Empire not universal though sometimes so called page 407 The Romans Right over their Children 104. their custom concerning Lands taken in War 472. concerning the spoil 474 475. Captives redeemed 491. those that return by Postliminy ibid. concerning things taken 518 519 concerning their Captive Kings page 503 Rules guiding
us in Political Consultations 419 Of Rule or Dominion the desire with the consent of the People to be ruled no cause of War page 407 S. SAbacon converted capital punishments into servile works page 372 Sabbath the symbol of the Creation 387. its Law more indispensable than any other ibid. its breach why punished by Death ibid. driven away by the danger of life 59. made for the refreshment of Servants page 521 Sacred things in what sense publick 465. whether subject to the licence of War ibid. 466. rendered by their City cease to be sacred ibid. made prophane by the consent of the People ibid. in war to be spared page 515 Sacriledge in War not punishable page 465 It is Sacriledge to violate Temples and Altars page 515 Sacreligious persons to be cast out unburyed page 219 Safety of the Conquerour how provided for page 525 526 Safety of the whole consists in the preservation of its parts and so on the contrary page 57 Safe-conduct to such a place how understood 568. how far it extends to persons Goods or Attendants 544. what it implies page 560 The Saguntines case discust page 193 Sampsons Death page 219 Sanedrin called Gods page 47 Satisfaction to be demanded before War be denounced 367. to be tendred by him that hath offended 77. if refused justifies a War ibid. Saul whether he dyed impenitent page 219 Scarcity of money and provision shortens a War page 511 Schoolmen their singular modesty Pref. xix their opinion concerning Lying and Equivocation 444. the generality follow St. Augustine ibid. Scriptures what they barely recite and reprove not we ought not to condemn 449. to understand two main helps page 25 Sea taken either universally or in its parts whether occupyable 80. it cannot be possest because not bounded ibid. may be held in propriety and how 89. near the shore occupyable by the Law of Nature 90. filled up and let in to the Land by the Romans 90 91. serves for three uses Water Fishing and Navigation page 80 The Seas Empire over it parts how lost page 92 93 Sects all hold somewhat that 's true none infallible Pref. xvi Self-murder not valour but madness page 218 219 The Sentence doth not properly give a Right 448 449. sometimes divided sometimes conjoyned page 113 Sepultus and Humatus the difference page 214 Sepulchres subject to the Conquerour by the Law of Nature page 467 Sergius Paulus a Magistrate after his conversion page 20 Servus quasi servatus page 482 Servants may do what is unjust and yet be just 429. not punishable for what they do being commanded ibid. not Judges of their Masters commands but Executioners ibid. not examined by the Romans without torture 28. prohibited by the Canon to forsake their Masters how understood 116 117 483. whether they may resist their Master ibid. or take reward for their labour ibid. if good to be used as Brethren page 520 Servitude by way of punishment 117. its degrees ibid. not repugnant to Nature 115 116. perfect and imperfect page 115 The Severity of the Roman Laws towards the Conquered page 503 See Slaves Severity then seasonable when delinquents are few page 37 Severity extreme too near a Neighbour to Cruelty 456. of Lords justifies the Servants flight page 116 Sex preferred in Succession to Kingdoms before Age page 128 Signs testifying the consent of the will page 98 Significations though improper sometimes admitted page 193 Ships when said to be taken 470. of War with the Tackle and Ordnance taken the Kings 480. if they hurt any whether the Master stands obliged 204. where are many Innocents whether to be battered with Ordnance page 434 Shores how common and how held in propriety 90. forsaken by the River whose 138. are the Occupants Sheds for shelter may be built thereon page 85. Silence when taken for consent 98 99. if not free works nothing ibid. Simulation in War laudable to deceive an Enemy page 137 138 139 Simplicity of our first Parents wherein page 79 Single Combats from whence 368. in what cases lawful page 76 Sins re-acted aggravates the punishment 379 the most customary the more severe 382. differ with mens age and complexion 380. of humane infirmity not punishable by humane Laws 374. some unavoidable to some complexions 375. visited upon Parents and their Children what 402. against the second Table their degrees page 379 To Sin he that urgeth another sins himself page 445 446 Sisters two to marry Anciently lawful page 111 A Slave what 115 116. not to resist his Lord 483. too severely used may fly 116 117. taken in an unjust War and making an escape whether he may carry any thing with him 483. what ere is done unto him is unpunishable ibid. hath nothing of his own page 483 484 Of Slaves a multitude cannot constitute a City 486. some permitted to make their Will 523. in cases of Famine or Cruelty they may appeal to the Magistrate ibid. A Slave may merit from his Lord and raise himself a stock 522. not to be killed nor too rigorously punished nor oppressed with over hard labour 520 521 522. after very hard service rewarded with freedom and not to go away empty handed 523. to be used as an hireling 521. the Hebrews and Romans very merciful to them page 520 Where Slavery is not in use exchange of Prisoners and ransome succeeds page 523 Society the foundation of Law Pref. iv v. and reason mans best weapons ibid. A Society and a City how they differ page 50 Civil Society an human institution page 59 Society not to be kept by the Hebrews with whom page 184 Societies of ensurance against dangers page 164 Societies where work is set against Money ibid. In Societies the major part obligeth the whole 113. what Right they have over their members page 114 Societies with prophane what and how far dangerous and how they may be avoided page 186 Where divers Societies have unequal shares how the votes are to be reckoned page 114 Societies hold not where any one part have no hopes of gain page 163 164 Societies Naval page 164 Social War its division page 183 See Associates Sojourners in times of Peace may in War be made Captives page 472 To Solicite Subjects to betray their own Prince unlawful page 445 Soil lying waste may be given to Strangers page 85 Sold twice whose they are page 161 Solemn War cannot be but between Soveraign Princes 252. it hath its peculiar Rights page 456 480 A Son when he may accuse his own Father of Treason page 209 The Son born before the Father was King preferred before him that was born after page 131 Sons Adopted whether capable of Succession page 127 128 Sovereignty not lost by a promise of any thing that is not of natural or Divine Right 45. nor by misgovernment lost page 73 Souldiers to chuse their General dangerous 143 144. straggling from the Army and Plundering may be killed 374. of Fortune fight for Plunder and Pay 426. lives most miserable
is to be esteemed beyond the thing page 162 163 To Use a mans help being offered is lawful though to him that offers it it be unlawful page 446 Usurper who page 405 An Usurper not to be killed but obliged by private men by whom he may 64 65 66. his act binds not a lawful King 180. but in some Cases his Subjects page 64 65 Usura Foenus how distinguisht by the Roman Laws page 163 Usury by what Law forbidden 162. under it what gain falls ibid. concerning it what the Civil Law hath determined 164. what the Law of Holland ibid. W. WAR and Arms distinguisht Pref. vi when justly made Pref. xi to be justly managed ibid. War defined 2. proved lawful by the first principles of Nature 11. by the Law of Nature 11 12. by right reason and by the nature of human Society 12. by sacred story 13. by the consent of the wisest in all Nations 14. not repugnant to the Law of Nations not to the Divine Law ibid. avoided by the Primitive Christians to prevent some Acts which their Religion allowed not page 26 War some lawful proved out of the Fathers 26. publick private and mixt 31. private permitted by Moses 32. after tribunals erected sometimes lawful 31 32. private in our own defence lawful 33 34. solemn and less solemn ibid. sometimes made by inferiour Officers and whether such a War be solemn or publick 35. whether made by inferiour Commanders by guessing at the Will of their Prince ibid. War to make without Commission from the Prince Treason ibid. solemn cannot be but between Soveraign Princes page 35 36 452. The War of Manlius against the Galatae Caius Caesar in Germany Octavius and Decimus Cassius whether just page 35 36 War against Superiours unlawful 54. without Cause unjust 70. Civil worse than Tyranny page 65 War should be just if we would have it prosper 70. it hath three efficient Causes Principal Auxiliary Instrumental 66. it begins where Justice ends 69. its pretences always just though its Causes sometimes unjust page 70 War caused for wrongs done or in our own defence just 70. made for others naturally lawful 66. to repair damages or to exact punishment lawful 383. for punishment only seldome just 385 386. made to lessen the power of a Neighbour Prince only unlawful 76 77. for sins against God whether lawful 386. without cause suspected to be predatory 405. the most natural is that against wild Beasts next is that against men as brutish as Beasts page 384 385 By War some things gained are the Kings page 43 44 War between Christians not to be made for the Scriptures misunderstood 391. then profitaable when our Enemies will not otherwise do us Justice 412. when unlawful though the Cause be good 409. whether it may be on both sides just 414 415. undertaken for Religion or Liberiy whether lawful page 416 War made for a single Subject not always convenient for the whole 422. for the defence of Subjects lawful ibid. for punishment seldom made by Princes of equal power page 420 The Condition of War miserable page 421 In War many changes and chances happen which cannot be foreseen page 418 War may prudently be undertaken where there is great cause and great advantage 420 421. may be in respect of Subjects on both sides just 415. denounced against Princes and against all that are under his Government 447. whether it may be made as soon as denounced and in what Cases 455. made by Pirates or Subjects have no effect of a solemn War ibid. That War is just that is made for the recovery of things taken away that is publickly decreed and solemnly denounced page 452 In War the effects are lawful i. e. not punishable 457. its licence extends to all that are found among Enemies even Strangers 458. the Innocent and Nocent fare alike ibid. its rage 459. not to be waged but with some clemency 497 498. especially amongst Christians 495. made against Walls Pillars Houses malicious page 512 In an unjust War as things so a People taken should be restored to Liberty 530. what is taken should be restored page 496 A War may be mixt in part publick in part private 435. may be made by Souldiers though wicked 431. may be made against such as sin against the Law of Nature 384. made to compel to Christianity unlawful page 389 War to be sometimes avoided by Princes for their Subjects sake 418. made to establish Peace 524 571. for revenge not to exceed a just measure page 497 498 Vnto an unâ—ust War none to be compelled page 187 War may lawfâ—lly be made for Friends and Associates 424. c. for the Subjects of another Prince 425. for any men page 424 War then just when necessary it shou'd be our last remedy page 452 Wedlock how it differs from Matrimony page 112 Of Weight or measure to exact more or less than is contracted for is Theft page 160 A Wife may rocover from her Husband what she lent him if thereby he be enriched 147. she may claim the Estate if bought with her money ibid. she hath power over her Husbands Body by the Gospel Law page 109 Wives many to have at once lawful of old ibid. whether it be lawful to forsake them ibid. in favour to them Divorce permitted to the Hebrews ibid. Wild Beasts how possest 135. by the Germans given to their Prince as all other things that had no owner ibid. in private Woods inclosed are possest ibid. whether the Dominion be lost with the possession ibid. and Fish whose they are 81. that they should be the Kings is not against the Law of Nature page 135 Will what hath no known Cause we refer to Gods will page 390 The Will in some case punishable 374. naturally mutable 379 380. of the Dead a Law page 122 The more of the Will the greater the sin ibid. The Will is moved by things really or imaginably good page 379 To have understood the Will of the Deceased creates a Right page 122 The Will exprest by some outward sign creates a guilt and makes us lyable to punishment page 383 The Will to shew her own freedom acts sometimes without any other reason page 419 420 Wise men make War by constraint Fools for delight page 421 Wisdoms chiefest part is to direct our selves in doubtful cases the next is to be directed by others of greatest learning and experience page 411 412 Wolves Peace with Sheep upon the delivery of the Dogs page 423 Women Captives how favoured by the Hebrew Laws 464. they have no guard for their Chastity 482. their Children Slaves born ibid. Women succeed in Kingdomes that are Patrimonial 127. how they are obnoxious to the licence of War 504. their Empire unknown to the Romans page 144 Women and Children to be spared in War page 504 Words signify by consent but things and acts not so 438. in Leagues taken as vulgarily understood page 190 191 Wrecks that they should be the Kings or Peoples unjust page 121 Writings are but lasting monuments of the contracts but no part of the substance page 199 In a Writing if two clauses clash and cannot be reconciled to which we should incline ibid. if its parts cannot be reconciled the latter derogates from the former page 191 Wrongs on the one side make War on the other side just page 70 X. XEnophon's institution of Cyrus page 4 Xerxes his contest with Artabazanes for the Kingdom page 132 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what page 183 Y. YEA Yea Nay Nay what it signifies page 174 Z. OF Zeal the judgment page 369 In Zealand the Vassals pay Tribute for their common fields to the State whereunto every man contributes his proportion page 138 Zeleucus his Law concerning such as drank Wine contrary to the prescription of their Physicians page 4 Zopyrus another Sinon betrayed Babylon to Darius perfidiously page 569 The End of the TABLE