it was meet that the matter should be ended on this wise 'twixt him and Turnus Certainly among other customs of the ancient Franks this is at large commended by Agathâ—… in his first book whose words are worthy to be added If any Contraversies happen to arise between the Kings they all muster their force's as it were to determine the matter by battell and they march forth into the field But so soon as the Armies have faced each other they lay aside anger and embrace concord perswading their Kings to put their differences to triall of Law or if they will not do that to enter into single combat and bring the matter to an end only with their own danger Because it is neither agreeable to equity nor the orders of their Countrey that they for their proper hatreds should weaken or overthrow the common good Wherefore presently they disband and the causes of their quarels being taken away peace is reestablished and muital security assured So great care of Justice and love of their Country is in the Subjects so gentle and yielding a disposition is in the Kings Now although in a doubtfull case both parts are bound to seek condition whereby war may be avoided yet is he more bound who requireth than he who possesseth For that in an equal case the condition of the possessor is the better is a point not only of the Civil but of the Natural Law And here is further to be noted that War cannot lawfully be undertaken by him who knoweth he hath a just cause but hath not sufficient proofs whereby he may convince the possessor of the injustice of his possession The reason is because he had no right to compell the other to depaâ—… out of his possession And lastly when both the right is ambiguous and neither possesseth or Both equally there he is to be thought unjust who rejecteth the offered division of the thing in conâ—…versy CXIX Whether war may be just on both sides OUt of the premises may be determined that Question agitated by many whether War respect being had of them that are the principal Movers of it may on both sides be just For the various acceptions of the word just are to be distinguished A thing is called just either from the cause or according to the effects From the cause again either in a special acception of justice or in that general use of the word as all rectitude is so called The special acception is agaiâ—… divided into that which perteineth to the work and that which perteineth to the worker For the worker himself sometime may be said to do justly as oft as he doth not unjustly though that which he doth be not just So Aristotle rightly distinguisheth to do unjustly and to do the which is unjust War cannot be on both sides just in the acception special and related to the thing it self as a sute in Law neither because a moral facultie to contraries to wit both to act and to hinder is not granted by nature But that neither of the parties warring may do unjustly is possible for no man doth unjustly but he that also knows he doth an unjust thing and many are ignorant of that So may a sute be followed justly that is with an honest mind on both sides For many things both in point of right and fact whence right ariseth are wont to escape men In a general acception just is wont to be called that which is without all fault of the Doer And many things without right are done without fault through ignorance inevitable An example whereof is in them who observe not the Law which without their fault they are ignorant of after the law it self is promulged and time sufficient by it self for knowledge hath passed So also in Law-sutes it may happen that both parties may be free from injustice and all other blame especially where both parties or either goeth to law not in his own but anothers name to wit by the office of a Tutor or Guardian whose duty is not to desert any right though uncertain So Aristotle saith in contentions of controverted right neither is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wicked With whom Quintilian agrees when he saith it may come to pass that an Orator that is a Good man may plead on both sides Yea Aristotle also saith a Judgâ—… may be said to judge justly two wayes â—…ther when he judgeth plainly as he ougâ—… or when he judgeth according to 〈◊〉 judgment conscience And in anotheâ—… place If one hath judged through igâ—…rance he hath not done unjustly Nevertheless in war it can hardly fall out be there will be at least some temerity and defect of love by reason of the weight of this business which in very deed is sâ—… great that not content with probabâ—… causes it requireth grounds most evidenâ—… But if we take just according to some effects of right it is certain war on bâ—… sides may be just in this sense as will appear by what we shall say of publick â—…lemn war in the next part And in like manner a Sentence not given according to right and Possession without right have some effects of right CXX ADMONITIONS For the eschewing of War Right is often to be remitted THough it seemeth not properly a paâ—… of our work our Title being of thâ—… Right of war to declare what other vertues give in charge concerning it neveâ—…theless on the By we must meet 〈◊〉 this errour of such as think where 〈◊〉 Right is manifest enough war presenâ—…y either must or alwayes may lawfully be undertaken For the contrary is true that for the most part it is more pious and honest to depart from ones right That we may honestly forsake the care even of our own life that we may provide as much as lies in us for the eternal life and salvation of another hath been shewed afore Which is especially the duty of Christians therein imitating the most perfect example of Christ who dyed for us while we were his enemies This doth much more excite us not to pursue our worldly interests with so much hurt of other men as Wars do carry with them That for every such cause war is not to be waged even Aristotle and Polybius do advise Nor was Hercules commended by the Antiens for commencing war against Laomedon and Augias because they paid him not for his labour Dion Prusaeensis in that Oration which is of War and Peace saith it is not only enquir'd whether They against whom we intend war have done us injury but whether the injury be of such moment that it may deserve a war CXXI Punitive right especially is to be remitted TO omit punishments many things do exhort us Consider how many faults Fathers connive at in their Children Whereof Cicero hath a dissertation in Dion Cassius A Father saith Seâ—…ca except many and great offenses have overcome his patience except he hath more to
by this that Jesus was that promâ—…sed Messias the King of a heavenlâ—… Kingdom who should give the poweâ—… of the Holy Spirit to them that believe on him XVII The fourth Argument THe fourth Argument seems to me 〈◊〉 no small weight If the Right 〈◊〉 capital punishments and of defendinâ—… the people by force of Arms againâ—… Robbers and Spoilers be taken away thence will follow licence of wickednesâ—… and a deluge as it were and floud of evils when as although Justice be now executed that stream is hardly kept within the banks Wherefore had it been the mind of Christ to bring in such a state of things as was never heard of doubtless he would in most plain and express terms have commanded that none should give sentence of death that none should bear Arms which command he hath no where promulged for the alleged places are very general or very obscure Now equity and common reason shews not only general words must be restrained and doubtfull words commodiously explained but the propriety and received use of words somewhat declined that a very incommodious and incoherent sense may be avoyded XVIII The Fift Argument FIftly it can be evinced by no Argument that the Judicial Law of Moses expired before the destruction of Jerusâ—…lem wherewith fell both the form and the hope of that Common-wealth for neither is any term prefixed to that Law in the Law itself nor do Christ or his Apostles ever speak of the Cessation of it but as it may seem comprehended in the destruction of the Common-wealth as we have said yea on the contrary Paul saith the High-Priest was set to give judgement according to the Law of Moses Christ himself in the preface to his precepts saith He caâ—… not to dissolve the Law but to fulfill it the sense of which words as to Riâ—…uals is not obscure for the lineaments and shadowings are filled up and compleated when the perfect species of a thing is presented to our view as to the judicial Laws how can it be true if Christ as some do think hath by his comming taken them away But if the obligatior of the Law remained as long as thâ—… Common-wealth of the Hebrews stood it follows that even the Jews converted unto Christ if they were called unâ—… Magistracy could not shun it and thâ—… they ought to judge no otherwise thaâ—… Moses had prescribed Methinks wheâ—… I weigh all things there is not the leafâ—… motive for any pious man that hearâ—… Christ at that time speaking to understand his words in any other sense Thiâ—… I acknowledge before the time of Christ some things were permitted whether in respect of outward impunity or also of inward purity I need not determine which Christ hath forbidden the Disciples of his institution as to put away ones wife for every cause to seek reveng from the judg upon the injurious personâ—… yet between the precepts of Christ and those permissions there is a certain diversity no repugnance For he that keeps his wife and remits the injury doth nothing against the Law yea he doth that which the Law wills most 'T is otherwise with the Judge whom the Law not permits but commands to put the Murderer to death himself becomming guilty of blood before God unless in this case he shed it If Christ forbid him thus to punish the murderer his precept is plainly contrary to the law he dissolveth the law XIX The Sixt Seventh and Eighth Arguments THe sixth is from the example of Cornelius the Centurion who received from Christ the Holy Spirit an undoubted sign of his justification and was Baptized in the name of Christ by the Apostle Peter but that he left his Office of War or was advised by Peter to leave it we do not read Some answer whereas he had instruction from Peter concerning Christian Religion it is to be supposed that he was also instructed to desert his place This were something if it were certain and undoubted that Christ among the rest of his precepts had forbidden War But when that is no where else expressed here at least was a fit place to say somewhat of it that the age to come might not be ignorant of the rules of their duty Nor is it the manner of Luke where the quality of the persons required a special change 〈◊〉 life to pass it over with silence as 〈◊〉 may see elsewhere The seventh Argument like to this is taken from thâ—… which we began afore to say of Sergiâ—… Paulus for in the story of his conversion there is no intimation of his 〈◊〉 nouncing his office nor of any admâ—…nition given him to do so Now thâ—… which is not related as even now 〈◊〉 said when it is of most concernment aâ—… the place requires it is to be conceive not at all to be done The eighth mâ—… be this that Paul the Apostle haviâ—… understood the Jews plot against him willed it to be revealed to the chief Câ—…tain and when the chief Captaâ—… gave him a guard of Souldiers to secâ—… his journy he accepted of it makiâ—… never a word to the Captain or 〈◊〉 Souldiers that God was not pleasâ—… with resisting of force by force And 〈◊〉 Paul was a man who would himself 〈◊〉 mit nor suffer others to omit no occâ—…sion of teaching men their duty XX. The ninth tenth and eleventh Arguments NInthly The proper end of a thing just and lawfull cannot but be just lawfull It is not only lawfull but we have a precept obliging the conscience to pay tribute And the end of Tribute is that the publick powers may have wherewith to defray the charge upon them for the defence of good men and the coercion of the bad Tacitus speaks to our purpose The quiet of the world cannot be had without Arms no Arms without Souldiers pay nor pay without contribution Tenthly Paul speaks thus If I be an offender or have committed any thing worthy of death I refuse not to die Whence I collect that in Paul's judgement even since the publication of the Gospel there are some crimes which equity alloweth yea and requireth to be punished with death Which also Peter sheweth in the first of his Epistles Had the will of God been so now that capital judgements should cease Paul might indeed have made an Apology for himself but he ought not to have left in the minds of his hearers such an opinion as this that it was no less lawfull now than heretofore to put offenders to death Now it being proved that capital punishments are rightly used since the comming of Christ it is withall proved as I suppose that some War may be lawfully waged to wit against a multitude of armed offenders who must be overcome in battail before they can be brought to judgement For the forces of offenders and their boldness to resist as in a prudent deliberation it haâ—… some moment so it diminisheth nothing of the right it self
the second For as an Infant King hath right but cannot exercise his power so also one of an alienated mind and in captivity and that lives in the territory of another so that freedome of action about his distant Empire is not permitted him for in all these cases Curators or Vicegerents are to be given Therfore Demetrius when being in the power of Saleucus he was under some restraint forbad any credit to be had either to his seal or letters but appointed all things to be administred as if he had been dead LXI Of the war of Subjects against their Superiors The question stated WAr may be waged both by private men against private as by a traveller against a robber and by those that have the highest power against those that have it likewise as by David against the King of the Ammonites and by private men against those that have the highest power but not over them as by Abraham against the King of Babylon and his neighbors and by those that have the highest power over private men either subject to them as by David upon the part of Isboseth or not subject as by the Romans against the pirats Only the question is whether it be lawfull for private or for publique persons to make war upon them under whose power whether supreme or subordinate they are And first that is beyond all controversy Armes may be taken against inferiors by those who are armed by authority of the Highest power as Nehemias was armed by the Edict of Artaxerxers against the neighboring Governours So the Roman Emperors grant leave to the Lord of the soil to force away the Camp-measurers But it is inquir'd what is lawful against the Highest Power or the Lower Powers doing what they doe by authority of the Highest That 's without controversy amongst all good men If they command any thing contrary to naturall right or to the divine precepts what they command is not to be done For the Apostles when they said we must obey God rather than men appealed to a most certain rule written in all mens minds which you may finde almost in the same words in Plato but if for any such cause or otherwise because it is the pleasure of the Soveraign injury be offerd us it is to be sufferd with patience rather than resisted by force LXII By the law of Nature war upon Superiors as such is not ordinarily lawfull ALl men indeed naturally as we have said above have right to keep off injury from themselves But Civil society being ordained for the maintenance of tranquillity thereupon ariseth presently to the Commonwealth a certain greater right over us and ours so far as it is necessary to that end The Commonwealth therefore may for publicque peace and order prohibite that promiscuous right of resisting and no doubt is to be made of the will thereof when without that the end cannot be attained For if that promiscuous right of resisting continue it wil not be now a Commonwealth but a dissolute multitude such as were the Cyclops of whom Euripides saith Every one gives lawes to his wife and children and A confused company where every one commands and none obeyes And the Aborigines who as Salust relates were a savage kind of people without laws without rule disorderly and dissolute and the Getulians of whom he speaketh in another place that they were not govern'd neither by customes nor by the Law or command of any Ruler The manners of all Commonwealths are so as I have said It is a general agreement of human society saith Augustin to obey Kings To the Prince saith Tacitus have the Gods given supreme power to the subjects is left the glory of obedience Hic quoque Indigna digna habenda sunt Rex quae facit Aequum atque iniquum Regiiimperium feras Seneca Add that which is in Salust To doe what he will without punishment that is to be King Hence it is that every where the Majesty that is the dignity whether of a people or of One that hath the highest power is defended by so many Lawes by so many punishments which dignity cannot consist if the licence of resisting do remain A Soldier who hath resisted his Captain willing to chastise him if he hath laid hold on his rod is cashierd if he purposely break it or laid violent hand upon his Captain dyes And in Aristotle it is If one that beareth office beateth any man he must not lift up his hand against him LXIII Nor is it allowed by the Hebrew Law IN the Hebrew Law he is condemned to death who is disobedient either to the High Priest or to him who is extraordinarily appointed by God to be Ruler of the people That which is in Samuel of the Kings right plainly appeares to him that looks rightly on it neither to be understood of true right that is of a faculty to do a thing honorably and justly for a far other manner of life is prescrib'd the King in that part of the Law which declares his office nor to signify a naked fact for there would be nothing peculiar in it sith also private men are wont to do injuries to private men but a fact which hath some effect of right that is an obligation of non-resistence Wherefore it is added that the people opprest with these injuries should cry to God for help to wit because no human remedies remained So then is this called right as the Pretor is said reddere jus to do right even when he determineth unrightly LXIV Least of all by the Evangelical Law The first proof out of S. Paul IN the new Covenant Christ commanding to give to Caesar the things that are Caesars would have the disciples of his institution understand that no less if not greater obedience with patience if need be is due to the Highest Powers than the Hebrews owed to the Hebrew Kings which his best Interpreter Paul the Apostle explaining more at large and describing the duties of subjects amongst other words hath these Whosoever resisteth the power resisteth the ordinance of God and they that resist shall receive to themselves damnation He addes For he is the Minister of God to thee for good And again Wherefore ye must needs be subject not onely for wrath but also for conscience sake In subjection he includeth a necessity of not resisting nor that onely that springs from fear of a greater evill but that flowes from the very sense of our duty and obligeth us not to men only but to God He addes two reasons First because God hath approved that order of ruling and obeying both of old in the Hebrew Law and now in the Gospell wherefore the publique powers are to be so esteemed by us as constituted by God himself For we make those things ours which we grace with our authority Second because this order serves to our good But one may say to suffer injuries
old servants at Rome now in most places Clerks which Law yet as all of that kind is to be understood with exception of extreme necessity And so much be spoken generally concerning Adjutors and subjects the specials shall be considered in their proper places The end of the first Part. HVGO GROTIVS OF WARRE AND PEACE II. PART I. What are call'd justifick causes of War LEt us come to the Causes of Wars I mean justifick for there are also other which move under the notion of profitable distinct sometimes from those that move under the notion of just which Polybius accuratly distinguisheth one from the other and both from the Beginnings of war such as the Stagg in the war of Turnus and Aeneas But although the difference 'twixt these is manifest yet the words are wont to be confounded For the causes which we call justifick Liâ—… in the Rhodians speech hath also called Beginnings Certainly ye are the Romans who pretend that your wars are therefore prosperous because they are just nor do ye so much glory in the event of them that you overcome as in the beginnings that you undertake them mâ—… without cause Those justifick causes properly belong to our argument whereto is pertinent that of Coriolanus in Halicarnassâ—…nsis I suppose it ought to be your first care that you take a pious and just cause of war And this of Demosthenes As in houses ships and other buildings the lowest parts ought to be most firm so in actions the causes and foundations must be true and â—…ust To the same purpose is that of Dio Cassius We ought to have greatest regard of justice if this be preseut the war is hopefull if not there is nothing certain to any one though he have successe at first according to his minde And that of Cicero Those wars are unjust which are undertaken without cause who elsewhere reprehends Crassus for passing o'r Euphrates when there was no cause of war Which is no less true of publique than of private wars Hence is that complaint of * Seneca Do we restrain homicides and single slaughters Why doe we not restrain wars and that glorious wickedness of slaughtering Nations Avarice and cruelty know no bounds By the Decrees of Senate and people outrages are done and things piivately forbidden are publiquely commanded Wars I grant undertaken by publick authority have some effects of Law as also Sentences of which here after but they are not therefore the less blamable if there be no cause So that Alexander if without cause he warred upon the Persians and other nations is by the Scythians in Curtius and by Seneca too deservedly call'd a Robber by Lucan a Spoyler and by the Indian wisemen unjust and by a certain pirate was drawn into the society of his crime And likewise Justin relates that two Kings of Thrace were spoyled of their Kingdom by his Father Philip by the fraud and wickedness of a Robber That of Augustin is to the same purpose Take away Justice and what are Kingdomes but great Robberies To such agrees that of Lanctantius Deceived vith the shew of vain glory they colour their wickedness with the name of virtue Just cause of taking Arms can be no other than injury The iniquity of the adverse party brings in just wars saith the same Augustin where by iniquity he means injury So in the form of words used by the Roman Herald I call you to witness that people is unjust and doth not performe what is right II. Three just causes of Wars THere are according to most Authors these three just causes of wars Defense Recovery Revenge In which enumeration unless the word Recovery be taken more largely is omitted the prosecution of that which is due to us which Plato omitted not when he said Wars are waged not onely if one be opprest by force or robbed but also if one by deceived With whom agrees that of Seneca It is a most equal word and conformable to the Law of Nations Render what thou owest And in the Herald's formula it was They have not given nor paid nor done the things they should And in Salust By the law of Nations I demand those things Augustin when he said Just wars are those that revenge insuries tooke the word revenge more generally for to take away as the following words do shew wherein is not an enumeration of parts but an addition of examples So is a nation or common-wealth to be opposed which hath either neglected to avenge what was done wickedly by their men or to render what was injuriously taken Upon this naturall knowledge the Indian King as Diodorus relates accus'd Semiramis that she began a war having received no injury And so do the Romans require of the Senones not to fight against them that had done them no wrong Aristotle saith Men war upon such as have provoked them by injury and Curtius of certain Scythians They were manifestly the most just of all the Barbarians they took not armes unless they were provoked III. War is lawfull in defense of life onely against an assailâ—…nt and in present certain danger THe first cause of just war is Injury not yet done but offer'd either against Body or Goods If the Body be assaulted by present force with perill of life not otherwise avoidable in this case war is lawfull even with the slaying of him that brings the danger as we have said afore when by this instance as moâ—… approved we shewed that some private war may be just T is to be noted this right of defense by it self and primarily springs from hence that nature commends every one unto himself not from the injustice or sin of the other from whom the danger is Wherefore although he be without fault as one that warreth faithfully or thinketh me other than I am or is beside himself or affrighted as to some hath happened hereby is not taken away the right of self-defense it sufficeth that I am not bound to suffer what he offereth no more than if another mans beast did threaten me with the danger Whether also innocent persons who being interposed hinder my defense or flight without which death cannot be escaped may be slain is question'd Some even Divines there are that think it lawfull And surely if we respect nature alone with her the respect of society is much less than the care of proper safety But the law of Charity especially the Evangelicall which equals another to our selves plainly permits it not That saying of Thomas if it be rightly taken is true In a true defense a man is not slain on purpose not that it is not lawfull sometimes if there be no other meanes of safety to do that on purpose whence the death of the assailant wil follow but that in this case that death
shamefull to human nature Hence it is that the office of burying is said to be performed not so much to the person as the nature Non tam homini quam humanitati whence Seneca and Quintilian called it publick humanity Petronius tralatitious Whereunto this is Consequent that Burial must not be envyed neither to our own nor our Countreyes enemies Of private enemies excellent is that dissertation of Ulysses in Sophocles for the burial of Ajax where we have this among the rest to Menelaus After so many wise words said Beware you do not wrong the dead Euripides gives the reason in his Antigone Mens quarels dy with their last breath For what revenge is after death And Optatus Milevitanus renders the same cause If you had any difference living let the other's death kill your hatred He is now silent with whom you quarrell'd LXXV Burial is also due to publick enemies WHerefore also to publick enemies all men think Burial to be due Enemies do not envy burial saith Tacitus and Dio Chrysostomus having said this is a Law observ'd among enemies in war addeth although their hate hath proceeded to the highest degree Sopater above cited What war hath deprived mankind of this last honour What enmity hath so far extended the memory of evil deeds as to dare violate this Law Dio Chrysostom cited a little afore in his Oration of Law By this no man judgeth dead men enemies nor is anger and disgrace extended to their bodyes And examples are every where extant So Hercules sought his enemies Alexander those slain at Issus Hannibal sought C. Flaminius P. Aemilius Tib. Gracchus Marcellus Romans to bury them The same was done by the Romans for Hanno for Mithridates by Pompey by Demetrius for many for King Archelaus by Antonius It was in the oath of the Greeks warring against the Persians I will bury all my fellows being victorious I will bury the Barbarians too and frequently in histories you may read of leave obtained to carry off the dead We have an example in Pausanias The Athenians say they had buried the Medes because it was their Religion to Interr all the dead whatsoever they were Wherefore by the interpretation of the antient Hebrews the High Priest when otherwise he was forbidden to be present at any funeral was commanded nevertheless to put into the earth a man found unburied But Christians so much esteemed sepulture that for this as well as to feed the poor or to redeem captives they thought even the consecrated Vessels of the Church might be lawfully coined or sold. There are indeed examples also to the contrary but condemned by common judgment LXXVI Whether Burial be due to notorious malefactors COncerning these I see there are causes of doubting The divino Law given to the Hebrews the mistress as of every vertue so of humanity too commands that they which were hanged on a tree which was esteemed very ignominious should be buried the same day Hence Josephus saith The Jews have such care of sepulture that they take down the bodies condemned to publick execution before Sun-set and commit them to the earth and other Hebrew interpreters adde This reverence was given to the divine image after which man was made Aegisthus who had seconded his adultery with the murder of the King was buried by Orestes the son of the murdered King as Homer relates And among the Romans Ulpian saith the bodies of them that are condemnd to dy are not to be denyed their kindred yea Paulus his opinion is they are to be granted to any whoever they be that ask them And Dioclesian and Maximian Emperours answered thus We do not sorbid that offenders after execution worthy of their crimes be deliverd to the grave Indeed we read in histories examples of them that have been cast out unburied more frequent in Civil than Forein wars and at this day we see the bodies of some condemned persons to be left a long time in publick view which manner yet whether it be commendable is disputed not by Politicks only but Divines On the contrary we find they are praysed who gave burial to the bodies of such as had not permitted the same to others namely Pausantas King of the Lacedemonians who being provoked by the Aeginetae to revenge the deed of the Persians upon Leonides with the like deed rejected the advice as unworthy of the Graecian name And the Pharisees buried Alexander Jannaeus who had been very contumelious against his dead Countreymen But if God sometimes hath punished some with the loss of burial he hath done this above the constituted Laws and that David kept the head of Goliah to be shewed was done against an Alien a Contemner of God and under that Law which extended the name of Neighbour to the Hebrews only LXXVI Whether it be due to those that have kill'd themselves to the sacrilegious and traiterous IT is here worthy to be noted concerning burial of the dead that the rule among the Hebrews themselves had an exception of them that had layd violent hands upom themselues as Josephus tells us Nor is it any wonder when no other punishment can be appointed them that esteem not death for a punishment So the Milesian maids were frighted from voluntary death and likewise the Plebs of Rome sometime though Pliny approve it not So the body of Cleomenes who had slain himself Ptolomy commanded to be hang'd up And saith Aristotle it is commonly receiv'd that some disgrace be done to them who have been the Authors of their own death which Andronicus Rhodius expounding saith their bodyes were forbidden to be buried And this among other Decrees of Demonassa Queen of Cyprus is commended by Dion Chrysostomus Nor is that any great objection against this custome that Homer Aeschylus Sophocles Moschio and others say That the dead feel nothing and therefore can neither be affected with loss nor shame For it is sufficient that that which is inflicted on the dead be feared by the living and they by this means be deterd from sin Excellently do the Platonists maintain against the Stoicks and whoever els admit the avoiding of servitude and diseases yea and the hope of glory for a just cause of voluntary death That the soul is to be retained in the custody of the body and that we must not depart out of this life without his command who gave it to us To which point much may be seen in Plotinus Olympiodorus and Macrobius upon Scipio's dream Brutus was at first of this judgment and condemned the fact of Cato which afterward he imitated For he thought it neither pious nor manly to yield to fortune and fly away from imminent adversities which are couragiously to be undergone And Megasthenes noted the fact of Calanus to be reprehended by the Indian wise-men whose doctrines did not suite with such an end of men impatient
lawfull either to omit to exact it whither pertains that of Seneca Clemency hath free choice A wise man then say the Stoicks parcit non ignoscit spareth doth not pardon As if forsooth it were not lawfull for us with the common people the masters of speech to call that to pardon which they call to spare Truly both here and elswhere as Cicero Galen and others have noted a great part of Stoical disputations is spent about words which a Philosopher should principally take heed of After a penal Law the difficulty seems greater because the author of a Law is in some sort bound by his own Laws but this is true so far as the Author of a Law is considered as a part of the Commonwealth not as he susteins the person and authority thereof For in this later respect he may take away eveâ—… a whole Law because the nature of a human Law is to depend upon the will of man not in its original only but also in duration Howbeit the Author of the Law ought not to take away a Law except upon some approvable cause otherwise he will transgress the rules of just Goverment Now as he may totally take away a Law so may he unty the bond thereof as to a person or singular fact the Law remaining firm in other respects and this after the example of God himself who as Lactantius saith when he gave the Law deprived not himself of all power but hath reserved a liberty to pardon And Austin saith The Emperour may revoke his sentence and absolve a man guilty of death and pardon him he expresseth a reason for it because He is not subject to the Laws who hath it in his power to make Laws Seneca would have Nero think this No man at all can put any one to death against Law and no man beside my self can save any But this also is not to be done unless there be good reason for it And what are good reasons though it cannot be precisely defined yet this is certain they ought to be greater after the Law than those that were considerd before the Law because the authority of the Law which to be kept is profitable is now added to the causes of punishing XCIV Causes of freeing one from punishment of Law THe Causes of freeing one from punishment of Law are wont to be either intrinsecal or extrinsecal Intrinsecal when the punishment if not unjust yet is hard being compared with the fact Extrinsecal from some merit or other thing commending the person or also from good hope of him for the future which kind of cause will be then most sufficient if the reason of a Law at least particularly cease in the present fact For although to sustein the efficacy of the Law the universal reason be enough where no contrary reason is yet even the particular reason ceasing the Law may more easily and with less diminution of authority be disperised with This is most usual in those offences which are committed through ignorance though not without all fault or vincible but by reason of the minds infirmity not easily vincible Upon which offences a Christian Ruler of men ought to look with a gentle eye in imitation of God who in the old Covenant indeed required many such to be expiated with certain Sacrifices but in the new by words and by examples hath testified that he is ready to grant pardon of such to those that repent And truly that Theodosius was induc'd by those words of Christ Father forgive them they know not what they do to forgive the Antiochians is noted by Joannes Chrysostomus And hence appears how ill Ferdinandus Vasquius said a just cause of dispensing that is of loosing one from the Law is only that of which the Author of the Law being consulted would have said it was beside his meaning that it should be observed For he distinguisheth not between the equitable interpretation of the Law and the relaxation of it Whence in another place he reprehendeth Thomas and Sotus for saying The Law bindeth although the cause particularly ceaseth as if they had thought the Law to be the letter alone which never came into their minde All Relaxation of the Law which may oft be given and omitted freely is so far from equity properly so call'd that neither that relaxation which is due either out of charity or justice can be referred thither For to take away the Law either on probable or urgent cause is one thing another to declare the fact not to have been comprehended in the mind of the Law from the beginning XCV Of War for punishment and whether war be just for offences begun IT is manifest that wars are not to be undertaken for every offence for neither do the Laws bestow that their revenge which is safe and hurts only the nocent upon all faults Rightly saith the forecited Sopater That less and common transgressions are to be winked at not revenged Now that which Cato said in his Oration for the Rhodians that it is not equal any one should be punisht for an intent of doing evil was indeed well set in that case because no decree of the Rhodians could be alleged but only conjectures of their fluctuating minde yet is not this to be received universally For an intent or will that hath proceeded to external acts for the internal are not punished by men as we have said afore is wont to be lyable to punishment So the Romans decree a war against Perseus unless he give satisfaction for holding consultation and preparing war against the Roman people for indeed he had provided arms soldiers ships And this is well noted in the orations of the Rhodians which Livy hath recorded It agrees neither with the customs nor Laws of any Commonwealth that if one desire the destruction of his enemy and have done nothing to effect it he should lose his life Neither doth all ill will though declared by some deed make room for punishment For if sins finished are not all avenged much less are they that are purposed and begun In many that saying of Cicero may take place Perhaps it may suffice that the offender repent of his injury The Law given to the Hebrews against very many sins inchoated against piety or even against a man's life except judgment constituteth nothing special because both in things divine as being hard to be discerned by us it is easy to erre and the violence of anger is capable of pardon But when so many wives were easy to be had to injure anothers bed or when possessions were so equally divided by fraud to enrich himself with anothers loss was not to be endured For that Thou shalt not covet which is in the Decalogue though if you consider the scope of the Law that is the spirituality it be of larger extent for the Law would have all to be most pure in minde also yet as to the external
may suffer for the evil deed of their King or Governour We do not mean if the peoples consent be added or any deed of theirs by it self worthy of punishment but we speak of that contract which springeth from the nature of that Body whose Head is the King and members were the rest God indeed for David's sin destroyed the people with pestilence and truly as David thought being innocent but it was God who had most full and absolute right over their lives Mean while the punishment was not the peoples but David's for as a Christian writer saith It is the most bitter punishment to Kings that do amiss to see their people suffer This is all one saith the same Author as if he that hath done ill with the hand should be Beaten on the back So Plutarch in the like argument compares it to a physicians method in curing one part to open a vein in another Why men may not do so we have said afore The same is to be concluded of punishing particulars in things proper to them that have not consented for the offence of the Society And lastly the cause why an Heir being liable to other debts is not liable to the punishment of the deceased is for that the Heir bears the persâ—… of the deceased not in respect of meâ—… which are merely personal but of goods which are engaged Dion Prusaeensis What the Ancestors owed their posterity must pay for they have not refused the Inheritance CV OF UNJUST CAUSES Causes of War some are justifick others suasory POlybius who first noted the difference calls the former 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pretences because they are wont openly to be shewed Livy several times useth the word Title the later he stileth by the general name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes So in the war of Alexander against Darius the Pretence was Revenge of Injuries which the Persians had done the Grecians the Cause was desire of Glory Empire and Riches whereto was added great Hope of facility conceived from the expeditions of Xenophon and Agesilaus So the pretence of the second Punick war was the Controversy about Saguntum the cause was the indignation of the Carthaginians for the Agreements which the Romans in unequal times had extorted from them and their courage raised by the prosperity of their affairs in Spain noted by Polybius Likewise Thucydides judgeth the true cause of the Peloponnesian war to have been the Athenians growing Greatness which brought them into suspicion with the Lacedemonians but the pretence was the controversy of the Corcyreans Polideans and other things where yet be promiscuously useth the termes pretence and cause There is the same difference in the Oration of the Campanians to the Romans when they say they fought against the Samnites in word for the Sidicines in deed for themselves because they perceived when the Sidicines were consumed the fire would pass on to them And Livy relateth how Antiochus took arms against the Romans in shew for the death of Barcilla and some other matters is truth because he had great hope of success by reason of the decayed disciplin of the Romans So Plutarch observeth it was not truly objected to Antony by Cicero that He was the cause of the Civil war when Caesar resolved upon a war had only taken the pretext from Antony CVI. Wars without any cause are wild and brutish SOme upon neither of these causes are carried into wars greedy of dangers as Tacitus speaks for dangers sake The faults of these men exceed every human name and is by Aristotle termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serity Of these Seneca I may say it is not cruelty but ferity which takes pleasure in blood we may call it madness whereof there be sundry sorts and none more evident than that which runneth to the slaughter of men and cutting them to pieces To which sentence very like are those words of Aristotle Very cruel indeed is he to be accounted who makes his friends his enemies out of greediness to fight and shed blood Dion Prusaeensis Without cause to be carried into wars and fights is meer madness that seeks mischief to it self And the forecited Seneca saith No man is so inhuman as to wast human blood or very few CVII Against wars which have not justisick causes or not truly such BUt the greatest part of those that go to war have suasory causes and those either without justifick causes or with them Some care not at all for justisick causes of whom that may be said which is in the Roman Lawyers He is a Robber who being asked of the cause of possessing brings no other but that he doth possess Aristotle of those that perswade to war Men that oftentimes regard not at all whether it be just or no to subdue their harmless neighbours Such a one was Brennus who said Let the strongest take all Such a one was Annibal in Silius Whose right was his sword Such also was Attila and such are all that use these words No matter how the war begins If we can bring it to our ends To these men you may fitly apply that of Augustin To wage war against the neerest and thence march on to others and out of a desire of rule to conquer Nationâ—… that provoke you not what is it to be named but Great Robbery In Cicero we read The height of mind which is discoverd in dangers and labours if it want justice is so far from vertue that 't is rather immanity and an enemy to all humanity Andronicus Rhodius Who for to gain much receive whence they ought not these are call'd evil impious and unjust such as are tyrants and the Plunderers of Cities Others do allege causes as it were justifick which being weighed in the scale of right reason are found unjust and it appears as Livy speaks not a contention about right but an offer of violence Many Kings saith Plutarch use the two names of Peace and war not to that which is just but to that which is expedient CVIII Fear of an uncertain danger no just cause of war AMong the unjust causes of war is fear taken from neighboring power Which fear we have said above is not sufficient For that Defense may be just it ought to be necessary it is not so unless we be sure not only of the power of a neighbour but of his will sure by that certainty which hath place in matter of morality Wherefore their opinion is not to be allowd who make it a just cause of war if a neighbour hindred by no agreement build a Castle on his own ground or some other fortification which may sometime do us hurt For against such fears contrary fortifications in our land and the like remedies not warly forces are to be provided Unjust therefore were the wars of the Romans upon Philip of Macedonia of Lysimachus upon Dèmetrius unless
place where Subjects do truly offend or where the case is doubtfull For to this purpose was ordained that distribution of Empires Notwithstanding where the injury is manifest where any Busiris Phalaris Thracian Diomedes executeth such things upon his Subjects that no good man can allow of there the right of human society is not praecluded So Constantin against Maxentius and against Licinius other Roman Emperors against the Persians took arms or threatned to take them unless they would abstein from persecuting the Christians for their Religion Yea supposing arms cannot no not in extreme necessity be taken rightly by Subjects whereof we have seen those to doubt whose purpose was to defend the regal power nevertheless will it not therefore follow that arms may not be taken by others on their behalf For as oft as a personal not real impediment is put against any action so oft may that be lawfull for one for anothers good which was not lawfull for that other if the matter be of such a nature wherein one may procure the good of another So for a Pupil whose person is uncapable of judgment the Tutor goes to Law or some other for one absent even without a mandate his Defendor Now the Impediment which prohibites a subject to resist comes not from a cause which is the same in a subiect and no-subject but from the quality of his person which passeth not into others So Seneca thinks I may war upon him who being divided from my Countrey troubleth his own as we have said when we spake of exacting punishment which thing is often joined with defense of the innocent We are not ignorant by reading of histories old and new that Avarice and Ambition hideth it self under these pretences but it doth noth not therefore presently cease to be a Right which is abused by evil men Pirates also go to Sea and Robbers use the sword CXXXIII Concerning Soldiers of Fortune MOreover as warly Societies enterd into with such a mind that aids are promised in every war without any difference of the cause are unlawfull so is no kind of life more wicked than theirs who without respect unto the cause are hired to kill men thinking There is most right where is most pay Which Plato proves out of Tyrtaeus This is that which the Aetolians were upbraided with by Philip and the Arcadians by Dionysius Milesius in these words Mercats are made of War and the calamities of Greece are a gainto the Arcadians and without regard of the causes arms are carried to and fro A miserable thing indeed as Antiphanes speaks That men should get their living by exposing themselves to death What is more necessary to us saith Dion Prusaeensis or what is more worth than life and yet many men are prodigal of this while they are greedy of money But this is a small matter to sell their own blood unless they did also sell the blood of other men that are oft-times innocent So much worse than the Hangman by how much worse 't is to kill without cause than with cause As Antisthenes said Hangmen are better than Tyrants because they execute the guilty these the guiltless Philip of Macedon the Elder said These men that get their living by making a trade of war esteem war to be their Peace and Peace their war War is not to be turned into an Art or profession being a thing so horrid that nothing can make it honest but the highest necessity or true charity as may be understood by what we have said afore It is not indeed in it self a sin saith S. Augustin to go to war but to go to war for the spoil is a sin Yea and for the stipend or pay if that alone be regarded or that chiefly when as otherwise it is very lawfull to receive pay for who goeth to war at his 〈◊〉 charge saith S. Paul the Apostle CXXXIV Of just Causes that wit may be waged by those that are under others command Who they are and what they should do where they are left free WE have done with them that are is their own power there are others in a condition of obeying as sons of families servants subjects and single Citizens if they be compar'd with the Body of their Commonwealth And these iâ—… they be called to debate or a free choice be given them to go to the war or to stay at home ought to follow the same rule with them that at their own pleasure undertake wars for themselves or others CXXXV What they should do when they are commanded to war and believe the cause of the war to be unjust BUt if it be commanded them to bear arms as it usually comes to pass What then Why truly if it be manifest to them that the cause of the war is unjust they ought by all means to abstein That we must obey God rather than men is not only a sentence of the Apostles but of Socrates too and the Hebrew-Masters have a saying That the King must not be obeyed when he commands any thing contrary to the Law of God Polycarpus said just before his death We have learned to give meet honour to the Empires and powers ordained of God so far as may consist with our salvation And S. Paul the Apostle Children be obedient to your Parents in the Lord for this is right Upon which place Hierom It is a sin for children not to obey their parents yet because parents might perhaps command somewhat amiss he added In the Lord. And he annexed this of servants When the Lord of the flesh â—…neth a thing divers from the Lord of the Spirit Obedience is not due And elswhere In those things only ought men to be subject to their Masters and Parents which are not against the Commands of God For the same Apostle also saith Every man shall receive a reward of his own worke whether he be bond or free Seneca Neither can we command all things nor 〈◊〉 servants perform They must not obey â—…s against the Commonwealth They must not lend their hand to any wickedness Sopater Obey thy Father If according to right well if otherwise not so Stratâ—…cles was irrided of old who propounded a Law at Athens that whatsoever pleased King Demetrius might be accounted pious toward God and just toward 〈◊〉 Pliny saith he laboured somewhere to make it evident That it is a crime to serve another in doing evil The Civil Law themselves which do easily give pardon to excusable faults favour those that must needs obey but not in all things for they except things which have atrocity which are heinous and wicked in their own nature as Tully speaks and not by the interpretation of Lawyers Josephus relates out of Hecataeus that the Jews which served under Alexander the Great could not be compell'd either by words nor blows to carry earth with the other soldiers to the repairing of
as the Scholiast upon Thucydides observes And other Nations living also upon the spoil when they were come home from Sea sent unto the owners to redeem if they pleased at an equal rate what they were robbed of as Strabo saith Now the principal in moral matters is instead of the form and as it is rightly said by Cicero and Galen The denomination is given from the greater part Wherefore the same Cicero speaketh too crudely saying in his third De Republicâ where is an unjust King or unjust Senators or an unjust people there is not now a vitious but no Common-wealth Which sentence S. Augustiu correcting saith Yet I shal not therefore conclude it to be no people nor Common-wealth so long as there remaineth a rational multitude joyned together in a sociable Communion of things which they love A diseased body is nevertheless a body and a City though very sick is a City as long as Laws remain Courts of Justice remain and other things necessary that foreiners may there obtain right as well as private men among themselves Better spake Dion Chrysostom who said the Law that especially which makes the right of Nations is in a Common-wealth as the soul in the body of man which being taken away 't is no longer a Commonwealth And Aristides in that Oration wherein he exhorts the Rhodians to concord shews that many good Laws may consist even with Tyranny Now although there be so great a difference between a people how wicked soever and them that being not a people come together for wickedness yet may a change happen not only in single persons as Jephtha Arsaces Viriatus of Captains of Robbers became just Captains but in companies also as they that were only Robbers embracing another kind of life may become a Common-wealth Moreover who they are that have the Highest power we have said above whence it may also be understood If any have it in part for that part they may wage a just war and much more they who are not subjects but unequally confederate as between the Romans and their Fellows though inferiour in League the Volscians Latins Spaniards Carthagenians all things of a just War were exercised as the Histories inform us But that war may be just in this sense it sufficeth not that it be waged between Highest powers on both sides but it is requisite as we have heard that it be publickly decreed and truly so decreed publickly that the signification thereof be made by the one party to the other whence Ennius calls them promulgata pralia promulged battells It is a just war which is waged by edict saith an antient writer in Isidore things being requir'd or for resistance of Enemies and Livy put it in the description of a just war that it be commenced with an Edict and in an open manner XXI In denouncing war what is of the Law of Nature what proper to the Law of Nations FOr the understanding of the places last cited and other like about the promulgation of war we must accurately distinguish what things are due by the Law of Nature what by nature are not due but honest what things by the Law of Nations are requir'd to the proper effects of the same Law and what proceed from the peculiar institutes of some Nations By Natural Law where either force offerd is repelled or punishment exacted of one that hath offended no denuntiation is required there And this is that which Stenelaidas the Ephor saith in Thucydides We must not stand debating with words and arguments being iniur'd beyond words And Latinus in Halicarnassensis He that is assaulted with 〈◊〉 is wont to repell his enemy And Aelin out of Plato saith War undertaken to resist violence is indicted not by an Herall but by nature Hence Dion Chrysolm affirms Most wars are made without proclamation And for no other cause Livy objects to Menippus prefect of Antioch that he had slain certain Romans waâ—… being neither proclam'd nor so begun that they had heard of swords or any blood as yet drawn thereby shewing either of these two might suffice for a defense of his deed Neither is Indiction more necessary by the Law of Nature if a Lord will lay hands upon his own goods But as oft as one thing is invaded for another or the debtor's goods for the debt and much more if one will seise upon the goods of them that are subject to the debtor Interpellation is required whereby it may appear we had no other way to come to our own or that which is due unto us For that right is not primary but secondary and surrogate So also before the Supreme Governour may be invaded by war for the debt or the offense of the subject there ought to intercede an Interpellation that may constitute him in a fault whereby he may be esteemed to do a dammage or to be delinquent according to what we have discoursed above Yet further where the Law of Nature commandeth not such an interpellation to be made it is honestly and commendably interposed to wit that the adverse party may abstein from offending any more or the offense given may be expiated by repentance and satisfaction according to what we have said of using means to avoid war Pertinent here is that Precept which God gave unto the Hebrews that they should make offer of Peace to the City that was to be assaulted which precept being specially given to that people is by some ill confounded with the Law of Nations Nor indeed was that any other peace but 〈◊〉 condition of subjection and Tribute Cyrus when he had marched into the Armenians Country before he did hurt any man sent Messengers to the King to demand Tribute due upon the League and soldiers Supposing that to be more friendly and courteous than to lead on farther and sâ—…r nothing As Xenophon speaks in that History But by the Law of Nations to those peculiar effects in all cases is requir'd denuntiation not on both but on the one party This denuntiation is either Conditionate or Pure Conditionate where it is join'd with Remanding of Things And in the name of Res reperitae the Heralds Law comprehended not only vindication by right of dominion but also the prosecution of that which is due upon a Civil or Criminal cause as Servius explains it rightly Thence was that in the forms To be rendred To be satisfyed To be yielded Where To be yielded as we have said elswhere is to be understood unless they that are call'd upon will rather punish the guilty themselves This requiring of Things Plixy testifies was named Clarigation That denuntiation in Livy is conditionate That they will with all their power depell that injury except it be remedied by those that did it And in Tacitus Unless they specdily bring the offenders to punishment He will make promiscuous slaughter Pure denuntiation
least may be omitted better and with more commendation among good men In Seneca's Troades when Pyrrhus saith No law spares a captive or hinders his punishment Agammenon replies What Law forbiddeth not Pudor forbids to be done Where Pudor or Modesty signifies not so much respect of men and reputation as of Right and Good or at least of that which is righter and better And in that sense you may often see Justice joyn'd with Pudor Plato Justice is call'd the companion of Pudor and that deservedly And in another place God fearing the destruction of mankind gave unto men Justice and Pudor the ornaments of Cities and bonds of friendship Cicero so distinguisheth between Justice and Modesty that he makes it the part of Justice not to violate men of modesty not to offend them With that which we brought out of Seneca well agrees a saying of the same Author in his Philosophic writings How narrow is that Innocence to be good according to Law How much larger is the rule of duties than of Law How many things doth piety humanity liberality justice faith require all which are without the Statute-book Where you see Law is distinguished from Justice because Law conteins that which is of force in externall judgments The same difference Aristotle intimates disputing whether the servitude be to be called just which ariseth from War Some respecting one kind of just for the Law is a certain just thing say servitude arising from war is just yet not perfectly because it may happen that the cause of Warring was unjust So also the Roman Lawyers what oftentimes they call the right of captivity they elswhere call injury and oppose it to natural equity and Seneca saith the name of servant came from injury respecting that which oft happens And the Italians in Livy retaining the things they had taken from the Syracusians in War are called pertinacious to confirm their injury Dion Prusaeensis when he had said Captives in war if they returned to their own receiv'd their liberty addes as men that were injuriously kept in servitude Lactantius speaking of the Philosophers When they discourse of offices perteining to war they accommodate their words neither to justice nor to true vertue but to this life and the custom of Commonwealths And a little after he saith the Romans did injury by Law First then we say If the cause of war be unjust although war be undertaken after a solemn manner all acts that have their rise thence are unjust by internal injustice so that they who knowingly do such acts or do cooperate to them are to be reckoned iâ—… their number who without Repentance cannot enter into the Kingdom of heaven And true Repentance if time and ability be not wanting by all means requires that he who hath given the damage whether by killing or by spoiling things or by taking the prey repair the same Therefore God saith he hates the fasts of those that detein the prisoners not justly taken and to the Niâ—…ivites their King proclames that they turn every one from the violence that is in their hands seeing this by natures light that without such restitution repentance would be feign'd and fruitless And thus we find not only Jews and Christians to have judged but the Mahumetans too Now to restitution are the Authors of war whether by right of power or by counsil bound concerning all the things that usually follow war yea such things as are not usual if they have commanded any such or perswaded or when they could hinder have not hindred So also Leaders are bound concerning the things done by their Command and all soldiers fully who have concurred to any common act as namely the burning of a town in divided acts every one for the damage whereof himself is the only cause or at least one of the causes Nor can I think that exception is to be admitted which is added by some concerning them that do service unto others if in them be any part of the fault For the fault sufficeth to restitution without deceit Some there are who seem to be of opinion that things taken in war though the cause of war was not just are not to be restored because Warriors when they enter into war against each other are understood to have allowed those things to the Takers But no man is easily presumed vainly to expose his own and war of it self is far distant from the nature of Contracts And that peaceable people might have somewhat certain which they might follow and not be entangled in war against their will it sufficed to introduce that external dominion of which we have spoken Which also the said Authors seem to determine in the Law of the captivity of persons Therefore the Samnites in Livy We have sent back say they the things of our enemies taken in prey which seemed ours by the right of War They say seemed because that war was unjust as the Sammites had before acknowledged Not unlike is this that from a contract entred without deceit wherein is inequality by the Law of Nations there springs a certain faculty of compelling him who hath contracted to fulfil his Convenants and yet notwithstanding is he bound by the office of an honest and good man who hath covenanted for more than is right to reduce the matter to equality Moreover He that hath not himself given the damage or hath given it without all fault but hath in his hand a thing taken by another in unjust war is bound to restore it because why the other should go without it there is no cause naturally just not his consent not his iâ—…l desert not compensation There is an history pertinent to this in Valerius Maximus The people of Rome saith he when P. Claudius had conquer'd the Camerini by his fortunate conduct and had sold them under the spear though they saw the treasury encreas'd with money and the bounds of their fields enlarged nevertheless because the action seemed not to be done by their General upon a clear account with very great care they sought them out and redeemed them and restored their lands Likewise to the Phocenses by decree of the Romans was also that publick liberty rendred and the fields that had been taken away And afterward the Ligures who had been sold by M. Pompilius the price being repaid to the buyers were restor'd to liberty and caâ—…e had for the restitution of their goods The same was decreed by the Senate concerning the Abderites the reason being added because an unjust War is waged against them Howbeit if he that keepeth the thing hath laid out any cost or pains he may deduct as much as was worth to the master to attain a possession despair'd of but if he that had the thing being without fault hath consumed or alienated it he will not be bound but for so much as he may