about those things which lead thither The end is ever sâ—…e Good or at least the Avoidance of some evil which may be in the stead of good The things that lead to the one or other are not desired by themselves but as they lead thither Wherefore in Debates are to be compared both the ends among themselves and the effective faculty of those things that lead to the end to produce the same For as Aristotle hath rightly noted 〈◊〉 which bring forth action are of two sorts from that which is good and from that which is possible Which comparison hath three Rules The first is If the thing under debate seemeth to have in a moral estimation equal efficacy to Good and to Evil it is so to be chosen if the Good hath somewhat more of good than the Evil hath of evil Whence Andronicus Rhodius where he describes the magnanimous man saith He will undergo dangers not for every cause but for the greatest Another Rule is If the Good and Evil seem equal which may proceed from the thing in question that thing is eligible if the efficacy to Good be greater than to evil The third If both the Good and the Evil seem to be unequal and the efficacy of the things no less unequal that thing will be eligible so that the efficacy to good be greater being compar'd which the efficacy to evil than the Evil it self is being compar'd to the Good This have we set down after a more exact manner But Cicero discourseth to the same purpose in a plainer way when he saith We must take heed we do not offer our selves to perils without cause than which nothing can be more foolish wherefore in running hazards the custome of Physicians is worthy of our imitation They apply gentle remedies to light diseases but in the more grievous are compelld to use more perillous and doubtful Medicines Wherefore he saith it is a wise mans part to take the opportunity and the rather if he may obtain more good by success of the matter than he can fear evil upon the miscarriage In another place Where no great emolument is possible and a little mischance will be hurtfull what need is there to run the hazard Dion Prusaeensis Be it unjust and unworthy which is sufferd Yet must we not therefore in a contentious humour expose our selves to greater incommodities And again We seek to rid our selves of burthens that do sorely pinch us but if they be portable and we fear we shall change them for heavier loads we compose our selves to patience Aristides also Where our fear is greater than our hope have we not great reason to be cautious CXXV An Example of a Debate about Liberty and Peace LEt us take an example from that which Tacitus saith was of old consulted of among the Cities of Gallia Whether they should prefer Liberty or Peace understand Civil Liberty that is a right of governing the Commonwealth by themselves Which right is full in a popular state tempered in an optimacy especially such wherein none of the Citizens is excluded from honours Understand also such a peace whereby is avoided a destructive war that is as Cicero expresses it wherein all is in danger to be lost or where a right estimation of the future seemeth to portend nothing els but even the destruction of the whole people Which was the case of the people of Jerusalem besieged by Titus No man is ignorant what Cato would say here who chose rather to dy than to submit to One to which purpose is that sentence It is none of the hardest vertues to embrace death to avoid slavery and many the like But right reason dictates otherwise to wit That life which is the foundation of all good things temporal and eternal is of more worth than Liberty whether you take both in one man or in a whole people Wherfore God himself imputes it as a benefit that he doth not destroy men but deliver them up to servitude And elswhere he perswadeth the Hebrews by the Prophet to give up themselves to serve the Babylonians that they may not perish by famin and pestilence That then which was praised by the Antients that Saguntum did being besieg'd by the Carthaginian is not to be praised nor the things that lead thither For the internecion of a people in this kind of things is to be accounted as the greatest Evil. Cicero in his second De Inventione setteth down this example of necessity It was necessary the Casilinians shou'd yield themselves to Annibal though that necessity had this adjunct Except they would rather perish with hunger Of the Thebans who lived in the times of Alexander the Macedonian is extant this opinion of Diodorus Siculus Being more valiant than wiâ—…e they brought ruine upon their Country Of that foresaid Cato and Scipio who after the Pharsalick Victory would not submit to Caesar Plutarch passeth his judgment thus They are to be blamed as they that lost many and gallant men in Africa to no purpose That which I have said of liberty I mean of other things desirable if there be a more just or an equal expectation of a greater evil opposite For as Aristides saith well It is the manner to save the ship by casting foâ—… the lading not the passengers CXXVI He that is not much the Stronger ought to remit punishment MOreover in the exacting of punishments it is most observable that war should never be entred into upon that ground against him who hath equal forces For as a Civil Judge must so he that will avenge wicked acts by war must be much stronger than the offender Nor doth prudence only or Love of his people require that One abstein from a perillous war but Justice too that is governing Justice which by the very nature of government obligeth the superiour no less to care for inferiours than the inferiours to obedience Whereto is consequent what is rightly delivered by Divines that a King who for light causes or for to exact punishments not necessary and drawing after them great danger undertaketh a war is bound to his subjects to repair the damages arising thence For though not to the enemies yet to his own people injury is done by him who upon such causes involves them in so great an evil Livy saith War is just to whom it is necessary and their arms are pious who have no hope left them but in arms Ovid thus Let not the soldier armed be But to disarm the Enemie CXXVII War not to be undertaken but upon necessity or upon greatest cause with greatest opportunity THere is then seldom cause of taking arms which either cannot or ought not to be omitted to wit when Laws are as Florus speaks worse than war Seneca bids us venture upon dangers when we fear no less dangers if we sit still or greater so Aristides when it appears our estate will be worse if
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
such in very deâ—… seemeth this to be that one prefer the life of a great innocent multitude before his own And therefore Phocion exhorted Demosthenes and others after the example of the daughters of Leus and the Hyacinthides rather to undergo death themselves than suffer an irreparable mischief to de done to their Country Cicero for P. Sextius If this had happened to me sailing with my friends in some ship that Pirates surrounding us should threaten to sink us all except they would deliver me I would rather have cast my self into the Sea to preserve the rest than bring 〈◊〉 friends either to certain death or into great danger of their life The same in his third de Fimbus A good man wise and obidient to the Laws and not ignorant of Civil duties careth more for the interest of all than of any one or his own In Livy we read it spoken of certain Mâ—… Often have I heard of men that dyed for their Country but these men are the firâ—… that thought it fit their Country 〈◊〉 perish them But this being granted a doubt remains whether the innocent Citizen may be compell'd to do that which he is bound to do Satus denyes this using the example of a rich man who is bound 〈◊〉 the precept of Mercy to give Almes to the poor yet cannot be compell'd to 〈◊〉 But we must note t is one thing when the parts are compared among themselvs another when Superiours are compared to their subjects For an equal cannot compell his equal but unto that which is due by right strictly taken yet may a Superiour compell his inferiour to other things also which any vertue commands because this is comprehended in the proper right of a superiour as he is superiour So in great scarcity of corn subjects may be forc'd to bring out what they have laid up And therefore in our controversy it seemeth more true that the Citizen may be compeld to do that which Charity requires So that Phocion whom whom we have mentioned pointing at his most dear friend Nicocles said Things were come to that extremity that if Alexander should demand him he should think he were to be delivered CXXX War may also be undertaken justly for Confederates for friends yea for all men NExt to subjects yea qual in this that they ought to be defended are Confederates in whose Agreement this was comprehended that is whether they have yielded up themselves to the safeguard and trust of others or have coveâ—…nanted for mutuall succours He that reâ—…elleth not injury from his Fellow if he be able is in fault as he that offers it saith Ambrose As for Agreements to war when when there is no just cause they holâ—… not as we have said above And this is the reason why the Lacedemonians before they enterd into the war against the Athenians permitted all their Confederates to judge of the justice of the cause and the Romans permitted the Greeks to judge of the war against Nabis Nay further we adde the Fellow is not then bound to aid if there be no hope of a good issue For Society is contracted for good and not for evil Moreover a Confederate is to be defended even against another Confederate unless in the former league there was some more special agreement So the Athenians might defend the Corcyreans if their cause were just even against the Corinthians their more antient Confederates Another cause there is on behalf of friends to whom though no promise of aid was made yet in respect of friendship it is due if it may be given easily and without incommodity So Abraham took arms for his Kinsman Lot The Romans charged the Antiâ—… not to use Piracy upon the Grecians being the Cousins of the Italians The same Romans oft undertook or threatned wars not for their Confederates only as they were obliged by Covenants but for their friends The last anâ—… largest relation of men to 〈◊〉 another is as they are men Which alone sufficeth to 〈◊〉 for help Men were born to help one another saith Senoca And again A wise man will as oft as he can relieve the unfortunate Fortitude which defends infirmity saith S. Ambrose is full of Justice Of this above CXXXI Whether man is bound to defend man and one people another HEre it is a question whether any obligation lyes upon one man or one people to defend another from injury Plato's judgment is that he deserves punishment who doth not keep off force offerd to another which also was provided for in the Laws of the Egyptians But first if there be manifest danger it is certain he is not bound for he may preferr his own life and goods before another man's And in this sense I understand that of Tully He that defends not nor resists injurie if he can is in no less sault than if he forsake his parents or Country or Companions If he can that is Without his own hurt For the same Author saith in another place Men may perhaps be left undefended without any blame It is in Sallust's Histories All that in their prosperity are intreated to society of war ought to consider whether they may be permitted then to live is peace and whether that which is requested be pious safe glorious or dishonouraeable This of Seneca too is not to be despised I will succour one that is about to perish but so that I my self may not perish unless I shall redeem some great person or great matter But then neither he will not be bound if the oppressed an no other way be freed but by the death of the oppressor For if he that is invaded may preferr the life of the Invades before his own as we have said elswhere he will not sin who believes or desires that the oppressed should be of that mind especially when on the part of the oppressor or invader the danger of an irreparable and eternal loss is greater CXXXII Whether War be just to relieve the Subjects of Another THis is also in Controversy whether it be a just cause of War for the Subjects of Another that they may be deliverd from the injury of their Ruler Verily since civil Societies were instituted it is certain the Rulers of every one have attained a special right over their own Subjects And Thucydides among the signes of Soveraignty hath put the supreme power of Judgments no less than a right of making Laws and Magistrates Ambrose gives the reason Lest one usurping the charge of another they should raise war among themselves The Corinthians in the same Thucydides think it Equity that every one should himself punish those that belong unto him And Perseus in his oration to Martius saith he would not excuse what he had done to the Dolepes I have done it saith he by my own right seeing they were of my Kingdom under my dominion But all this hath
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
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
is not chosen as a thing primarily intended as in judiciall punishment but as the only thing remaining at that time when he that is assaulted even at that time ought to desire rather to do somewhat whereby the other may be terrified or weakened than destroyed Present danger is here requir'd and as it were in a point I confess if the assailant draw his sword and so that it appears he doth it with a mind to kill it is lawfull to prevent him For in morals as in naturals a point is not found without some latitude Nevertheless are they deceived and do deceive who admit of any fear whatsoever as a just occasion of such preventing For it is well observed by Cicero Very many injuries proceed from fear when he that thinks to hurt another feareth unless he do it himself shall receive hurt Clearchus in Xenophon Many have I known drawn either by calumny or supicion whilst they fear others and had rather prevent than suffer to have done much evill to those that attempted not nor so much as thovght any such thing against them Cato in his Oration for the Rhodians What saith he shall we first execute that which we say they designed Cicero again Who ever made this Statute or to whom may it be granted without extreme hazard of all that one might lawfully kill him first of whom he saith we was afraid left himself should afterward be killed Pertinent is that of Thucydides The future is yet uncertain nor ought any one therefore to make a quarrell present and certain The same Author where he declareth the hurt of Sedition among the Grecian Cities sets down this for one fault He was praised that first did what another was about to commit To such agrees that saying of Vibius Crispus cited by Quintilian Who permitted thee to be so fearfull And Livia in Dio saith They escape not infamy that by way of prevention do the evill which they fear Now if any one offer not present force but be found to have conspired or lyen in wait if to prepare poyson if to plot a false accusation to suborn witnesses to corrupt judgment such a one I say cannot be justly slain if either the danger may be otherwise avoided or it be not certain enough it cannot be otherwise avoided For for the most part the delay of time interposed affords many remedies and many accidents for our rescue according to the Proverb Between the cup and the lip Yet there are not wanting both Divines and Lawyers that extend their indulgence farther But the other also which is the better and safer way wanteth not the consent of Authors IV. Of the loss of a member and the defense of chastity WHat shall we say of the danger of mutilation and loss of some part of the body Certainly the loss of a member especially one very needfull being very grievous and as it were equiparable to life besides it being hard to know whether it draw not after it perill of death if there be no other way to come off I may suppose the author of such a perill forefeits his own life and may be justly slain by the defendant In defense of Chastity it can scarce be doubted but the same is lawfull when both common estimation and the divine law too equals chastity to life Therefore Paulus the Lawyer said such a defense is right We have an example in Cicero and Quintilian of a Tribune of Marius slaine by a Soldier Yea and women have often slain the in vaders of their modesty as histories relate Chariclea in Heliodorus calls such an act a just revenge on behalf of injur'd chastity V. Defense may lawfully be omitted WHat we have said afore although it be lawfull to kill him that attempts to kill yet he doth more commendably who had rather be killed than kill some do grant so that they except a person profitable to many But to me it seemeth unsafe to impose this Law contrary to Patience upon all in whose life others are concernd Wherefore I may conceive it is to be restrained to them whose office 't is to keep off force from others such as are the companions in a journey undertaken on those termes and publick Rulers to whom that of Lucan may be applyed T was cruelty to yeeld himself to death So many thousands living by his breath VI. Defense is unlawfull sometimes against a person very profitable to the Publick ON the contrary it may happen that because the Invader's life is profitable to many he cannot be slain without sin nor that onely by force of Divine Law whether old or new of which afore when we shewed the Kings person to be sacred but by the very Law of Nature For the Right of nature as it signifies a Law doth not onely respect those things which are dictated by that Justice that is calld Expletrix but conteineth in it self the acts of other vertues also as of Temperance Fortitude Prudence as being in certain circumstances not onely honest but due Now to that which we have spoken Charity obligeth us Nor doth Vasquez remove me from this opinion when he saith a Prince who assaulteth an innocent person ceaseth to be a Prince in that very act than which scarce any thing could be spoken either less truly or more dangerously For as dominions so also Empires are not lost by delinquency unless the Law ordain it But no where is found a Law ordaining this concerning Empires that they should be lost by an offence against a private man nor will ever such a Law be found as I believe for it would bring in very great confusion of things As to that foundation which Vasquez lays for this and many other Conclusions That al Empires regard the utility of those that obey not of those that governe grant it were universally true it would not serve the turne for the thing doth not presently fail whose utility in some part faileth And whereas he adds that the safety of the Commonwealth is desired by every one for his own sake and therefore every one ought to prefer his own safety even before the whole this doth not sufficiently cohere T is true indeed for our own sake we would have the Commonwealth be safe but not onely for our own sake others are also to be regarded For it is a false opinion and rejected by the sounder Philosophers to think that Friendship is born of indigence alone sith of our own accord and by nature we are carryed to it Now that I should prefer the good of a great many before my own proper good Charity adviseth often sometimes commandeth Here is pertinent that of Seneca Princes and Kings and whosoever by any other name are Tutors of the publick State no wonder They are beloved even above all private Relations For if to men of sound judgment publick things are dearer than private it followes that he
which foâ—…bids a Theif by day to be slain this exception added unless he defend himself with a weapon Therefore against a Theif by night it is presumed that with a weapon he defended himself And by a weapon is understood a sword a club a stone as Caius noteth upon this very Law Bâ—…t Ulpian hath declared that what is said of the Theif by night If one kil him he shal go unpunished is to be conceived to have place if he could not spare his life without peril of his own to wit in saving of his goods There is then as I have said a presumption on his side who hath slain a theif by night but if haply witnesses were present by whom it is evident the slayer of the theif was not brought into danger of his life then will that presumption cease and so the slayer will be guilty of Homicide Add that as well by day as by night the Law of the XII Tables requir'd that he that found the theif should testify so much by an out-cry as we learn out of Caius to the end if it might be the officers or neighbours might run thither to bring help and to bear witness Now because such a concourse is more easily made by day than by night as Ulpian notes upon the forecited place of Demosthenes therefore is more easy credit given to him that affirms he was in danger in the night time In like manner the Hebrew Law allowes a maid credit concerning a rape in the field and not in the town because here she might and ought to have cryed out and called aid Moreover although in other respects there were no difference yet this is considerable that the things that happen in the night are more obscure and cannot be so well known what and how great they are and therefore are more terrible The Law therefore both Hebrew and Roman gave in precept to the people that which Charity perswades that they kill no man for this reason onely because he stealeth goods but in case he that desires to save them comes himself into danger Moses Maimonides hath noted that the killing of another is not permitted to any man on other terms than to preserve that which is irreparable as life and Chastity X. Whether and how far it is permitted by the Evangelicall Law ANd what shall we say now of the Evangelicall Law that the same is permitted by it which is permitted by the Law of Moses or that as in other things it is more perfect than the Law of Moses so here also it requireth of us more I doubt not but it requireth more For if Christ commandeth to lose a coat or cloak and Paul would have us suffer damage rather than go to law which is a contention without bloud how much more would he that even things of greater moment be lost rather than we should kill a man the image of God and of the same flesh and bloud with us Wherfore if our things may be saved so that there seem not to be any danger of making slaughter well otherwise we must suffer losse unless haply it be such a thing upon which our life and of our family depends and which cannot be recoverd in judgment haply because the Theif is unknown and there is some hope to carry the matter without slaughter And although almost all as well Lawyers as Divines do now teach that a man may be rightly slain by us in defense of our goods even beyond those bounds wherein the Law of Moses and the Roman permit as if a thief having taken the thing fly yet do not we doubt but that which we have set down was the judgment of the antient Christians nor did Austin doubt whose words are these How are they free from sin before God who for these things which are contemptible are polluted with human blood No wonder if in this matter as in many other Discipline became looser with the time and by degrees the Interpretation of the Evangelical Law began to be accommodated to the manners of the Age. Of old the form of the primitive Institution was wont to be retained among the Clergy at length to these also censure was remitted upon the same ground XI Whether the Civil Law permitting one to kill another in his own defense give a right or only impunity AQuestion is here propos'd by some Whether the Law at least the Civil as having right of life and death in what case it permitteth a thief to be killed by a private person doth also exempt the person from all fault I conceive that is not to be granted For first the Law hath not right of death over all the Citizens upon every transgression but upon a transgression so grievous that it deferrâ—… death And it is a very probable opinioâ—… of Scotus that 't is not just to condemn any one to death unless it be for those transgressions which were punished wiâ—… death by the Law given by Moses thâ—…s onely added or which are equal to those in a right estimation And indeed knowledge of divine will which alone quieti the mind seems not possible to be had elswhere in this business but out of that law which surely appointeth not pain of death for a thief Moreover also the Law neither ought nor is wont to give a right privately to kill even those that have deserved death except in crimes very hainous otherwise in vain were the Authority of Courts of judgment ordained Wherefore if at any time the law saith a thief may be killd without danger of punishment it is to be supposed to take away the penalty not to grant a right XII When a single combat may be lawfull IT appears by what we have said that two ways it may come to pass that a single combat may be undertaken by private persons without sin First if the Invader grant the other license to fight and and will kill him unless he will fight Secondly if a King or Magistrat oppose two that have both deserved death one against the other in which case it will be lawful for them to lay hold on some hope of life but he that appoints the Duel will seem to have not so well done his duty sith it were better if the punishment of one seem to be sufficient to choose by Lot the party that should dy XIII Of defense in publick War WHat hath been said by us hitherto concerning the right of defending ones self and his goods perteâ—…eth most to privat War yet so that it may be applyed to publick regard being had to the diversity For in private war the right is as it were momentaneous and ceaseth so soon as the matter admits of an access unto the Judge but publick because it ariseth not but where Courts of Justice either are not or not exercised hath a continued tract and is perpetually cherished by addition of new damages and injuries Farther in private war
And it is noted by Aristotle that some have no tryalls about these matter for they think men ought to be content with the faith which they have taken And elsewhere In some places the Laws permit no action for what is trusted as if he were onely to be dealt with privately with whom one hath contracted and taken his word The objections brought against this opinion out of the Roman Law concern not our Embassadors but those that are provincial or municipal LXXII The right of Embassasadors vindicated by War PRophane Histories are full of wars undertaken because of wrong done to Embassadors And in the sacred story is exstant the memory of the war which David upon that ground waged against the Ammonites Nor doth Cicero esteem any cause more just against Mithridates LXXIII Of the right of Burial The right of burial springs from the same Law of Nations BY the Law of Nations which hath its rise from their will sepulture is also due to the bodies of the dead Dion Chrysostom amongst manners or customs which he opposeth to written Law after the rights of Embassadors mentions not to forbid dead men to be buried And Seneca the father among unwritten Laws but moâ—… certain than all written ones sets down this to bestow earth upon the dead The Hebrews Phila and Josephus call this the Law of nature as it is usual under the Name of Nature to comprehend common customes agreeable to natural reason He that hinders burial puts off man saith Claudian gives an affront to nature saith Leo the Emperor is an enemy to piety saith Isidore Pelusiot And because these rights common to Civil men that they might seem the more sacred were by the Antients referd unto the Gods we see this right as well as that of Legation frequently ascribed to them Therfore you shal find it in Sophocles called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Law of the Gods Isocrates speaking of the war of Theseus against Creon saith Who knows not what all success Adnastus had before Thebes where attempting to restore the son of Oedipus his son-in-Law he lost very many Argives and saw their leaders slain And himself surviving with dishonour when he could not obtain leave to bury the slain went to Athens with a petition to Theseus the King that he would not suffer such men to lye unburied nor the old custome to be despised and the right of all men violated being established not so much by human nature as by divine power Theseus hearing this decrces to send to Thebes without delay A little after the same Author reprehends the Thebans that they preferred the Statutes of their own City before Lawes Divine and he mentions the same history in other places So do others And frequently in good Authors we see eminent titles of vertue ascribed to this office For Cicero and Lactantius call it humanity Ualerius Maximus humanity and mildness Quintilian mercy and and Religion Seneca mercy and humanity Philo compassion of human nature Ulpian mercy and piety Modestinus the memory of human frailty Capitolinus Clemency Euripides and Lactantius justice Prudentius a gracious work On the contrary the Donatists who forbad the bodies of the Catholicks to be buried are accus'd of impiety by Optatus Spartianus saith such are without reverence of humanity Livius calls it cruelty beyond belief of human anger and Lactantius saith it is wicked wit in them that made sepulture to be a vain and superfluous thing LXXIV What was the first cause of this custome WHat was the first cause of this custome of interring bodies whether enbalmed before as among the Egyptians or burnt as among most of the Grecians or so as they are which Cicero notes to be most the antient way and after him Pliny of this all have not the same opinion For Moschion thinks the occasion was given from the gigantick ferity in eating men the abolition whereof is signified by Sepulture Others think men did in this manner as it were of their own accord pay the debt which otherwise nature requireth of them even against their will For that the body of man made of earth is due to the earth not only God declared to Adam but also the Greeks Latins frequently acknowledge Cicero out of Euripides Earth is to be rendred to the earth And the same Euripides hath elswhere more fully exprest what we read in Solomon The body returns to the earth from whence it came and the soul to God that gave it Pliny hath also written that the earth entertains us at our birth feeds us being born and all along our life susteins us and last of all when we are abdicated by the rest of nature she like a gentle mother embraces us in her lap and covers us There are some that hold the hope of resurrection as it were by this monument was consignd to posterity by the first parents of mankind For that Democritus also taught Bodies are to be conserved because of a promise of returning to life Pliny witnesseth And Christians oft refer the rite of decent burial to this hope Prudentius Why do Marbles cover dust And Monuments our bodies keep Because the thing they have in trust Is not dead but laid to sleep The more plain and simple opinion is whereas man excells other living creatures it seemed an unworthy thing that other animals should be fed with his body for the preventing whereof as much as might be sepulture was invented By the pity of men bodies are kept from the invasion of souls and wild beasts said Quintilian And Cicero Vexed by wild boasts he wanted the common honour in his death God in the Prophets threatneth the Kings he hates that they should have the burial of an Asse that dogs should lick their blood Nor doth Lactantius consider any thing els in burial when he saith We will not suffer the Image and work of God to ly a prey for beasts and birds And Ambrose his words are these You can do no better office for him who is now past requiting of you save him from the fouls of the air save from the beasts a partaker of the same nature But though such injuries were not yet for the body of man to be trod under foot and broken seems very unbecoming the dignity of his kind That in Sopater's controversies is to our purpose It is a comely thing to bury the dead and by nature it self appointed unto bodies lest they be vilified after death if they putrify naked All the Gods are pleased to indulge this honour to bodies deprived of life For because it is unreasonable the secrets of human nature should be exposed after death to the sight of all we have received a custome of old to Inter human bodies that being laid up in their sepulchers they may conceal their rotteness To the same purpose is that of Gregory Nyssen That the Sun may not see what is
of life The Persians it seems were of the same opinion whose King Dartus saith in the Historian I had rather dy by anothers crime than by my own Upon this ground the Hebrews said to dy was to be dismist as we may see not only Lu. 20. 29. but also in the Greek version Gen. 25. 2. Numb 20. in fine A phrase us'd by the Grecians too Themistius de anima They say a man that dyes is dismist and death they cal a departure or dismission In Plutarch's consolation the word is used in the same sense Until God himself dismiss us Yet some of the Hebrews concerning the Law of not Killing himself except one case as an honorable exit if one see he is like to live to the reproch of God himself For because they hold not we our selves but God hath power over our life as Josephus rightly instructed his soldiers they think a presumtion of the will of God is that alone which may perfect the resolution of anticipating death And to this they refer Samson's example who saw true Religion exposed to contempt in the sport made with him and Saul's who fell upon his sword that he might not be mocked by God's and his enemies For they suppose he repented after Samuel's ghost foretold him of his death which though he knew would come to pass if he did fight he nevertheless declined not the battail for his Country and the Law of God and thence got eternal honour even by David's Elogy who also gave to them that honorably buried Saul's body a testimony of their wel-doing There is a third example of Razes a Jerusalem Senator in the history of the Maccabees Moreover in the Christian history we read like examples of them that dyed by their own hands lest by the force of torments they should be compeld to forswear the Christian Religion and of Virgins who that they might not lose their virginity cast themselves into the river whom also the Church hath listed in the noble Army of Martyrs But yet of these it is worth our paines to see what Austins opinion is Another exception also I see obtained among the Greeks opposed by the Locri to the Phocenses That it is a common custom among all the Greeks to cast away sacrilegious persons unburied And so Dion Prusaeensis saith the impious and prophane are denyed burial The same at Athens was constituted against Traitors as Plutarch relates But to return to my purpose for sepulture denyed the antients with great consent have judged war may justly be undertaken as appears by the foremention'd history of Theseus handled by Euripides in his supplices and by Isocrates in the place alleged LXXVIII Of Punishments The Definition of punishment and the original FActs which are the causes of war are considerd two ways as they are to be repair'd or as they are to be punish'd This later part which is of punishments is the more diligently to be handled by us because the original and nature thereof not well understood hath given occasion to many errors Punishment in general is the evil of passion which is inflicted for the evil of action For though certain works are wont to be imposed upon some by way of punishment yet those works are to be consider'd only as troublesome and therefore are to be referrd to passions And the incommodities sufferd by some by reason of a contagious disease or a maimed body or other impurities such as are many in the Hebraw Law to wit to be kept from assemblies or functions are not properly punishments although for a certain similitude and abusively they are called so Now among the things which nature it self dictates to be lawful and not unjust this is one that he who hath done evil should suffer evil which the Philosophers call a most ancient and Rhadamanthean Law Pertinent is that saying of Plutarch Justice accompanieth God to punish them that transgress the Law Divine which all we men by nâ—…ture use against all men as fellows Plato said Neither God nor man will say that an offender ought not be punisht And Hierax by this as the noblest part defined Justice an exacting of punishment from offenders What we have said that punishment properly so named must be renderd to some offense this is also noted by Augustin All punishment saith he if it be just is the punishment of sin Which is to be understood of those punishments too that God inflicteth though in them sometimes by reason of human ignorance as the same Father speaketh the sin is secret where the punishment is not secret LXXI Who should punish an Evil-doer REason dictates that an evil-doer may be punished not who should punish him but that nature sufficiently sheweth it is most convenient to be done by him that is superior yet doth it not demonstrate this to be necessary except superior be taken in that sense that the evil-doer be thought to have made himself thereby inferior to any other and to have as it were degraded himself from the order of men into the number of beasts subject to man as some Divines have determined Democritus By nature it is ordaind that the better command the worse And Aristotle saith the worse are provided for the use of the better as well in naturals as artificials It follows hence that at least a guilty person ought not to be punisht by another equally guilty to which purpose is that sentence of Christ Whosoever of you is without sin such a sin let him throw the first stone Which he therefore spake because in that age the manners of the Jews were most corrupt so that they who would seem most pure were in the mire of Adultery and such like crimes as we may perceive Ro. 2. 22. The same that Christ had said the Apostle said also Therefore thou art inexcusable O man whosoever thou art that judgest for wherein thou judgeâ—… another thou condemnest thy self for thâ—… that judgest dost the same things Thâ—… of Seneca is pertinent The sentence 〈◊〉 have no authority where he that judgeth is to be condemned And elswhere The respect of our selves will make us more moderate if we consult our selves whether we also have not committed the like Ambrose in the Apology of David Whosoever will judge of another in him judge of himself first neither let him condemn lesser faults in another when himself hath committed greater LXXX Of the end of punishment NOcent persons are not injurd if they are punished yet doth it not thence follow that always they must be punished Nor is it true For both God and and men forgive many things to many nocent ones and are praised for it Famous is that saying of Plato which Seneca turnes to this effect No wise man inflicteth punishment because a fault is done but that it may be done no more For things past cannot be revoked the future
expecially deliberate and frequent begeâ—…s a certain proclivity to the like which after growth is call'd a habit therefore with all speed vices are to be deprived of their allurement and this cannot be better done than by embittering their sweetness with some pain following The Platonists in Apuleius It is worse than any punishment if the guilty scape unpunished and in Tacitus we read The corrupted and corrupting minde sick and instam'd is to be restrained and cooled with remedies as vehement as the lusts wherewith it burneth LXXXIII Of punishing a delinquent for his own benefit PUnishment for this end is by nature lawful for any one that is of good judgment and not obnoxious to the same or equal vices as appears by that castigation which is by words but in stripes and other punishments that contein somewhat of coaction the difference between persons that may or may not is not made by nature nor could it be made only reason peculiarly commends to parents the use of that right over their Children by the neerness of affection but by Laws which for the avoiding of contention have restrained that common propinquity of mankind to the next Relations as may be seen both elswhere and in Justinians Code tit de emendatione propinquorum Whither perteins also that of Xenophon to his Soldiers If I have beaten any one for his good I confess I owe such a punishment as parents do to their Children Masters to their Scholars And Physicians too for their patients recovery sear and cut Lactantius lib. 6. Jubet Deus c. God commands us always to have our hand over our inferiours to chastise them daily for their offences lest by our unprofitable love and too much indulgence they be ill bred and nourished for vice But this kind of punishment cannot extend unto death except reductively as negations are reduc'd to the opposite things For as Christ said it had been better for some that is not so bad if they had never been so to incurable natures it is better that is less evil to die than to live when it is certain they will become worse by living Seneca speaks of such when he saith To perish is sometime for the good of those that perish Such a one Plutarch saith is hurtful indeed to others but most of all to himself And Galen when he had said men are punished with death first that living they may not hurt next that others by fear of punishment may be deterred adds And thirdly it is expedient for themselves to dye being so sick and corrupted in their mind that they cannot be restored to health Some think these are they whom John the Apostle saith do sin to death but because the arguments hereof are fallacious we are taught by charity to have no man for deplored and past hope so that punishment for this end can have place but very seldome LXXXV Of punishment for his profit who was offended And of revenge by the Law of Nations THe utility of him against whose interest the fault was made is herein placed that he suffer the like no more neither from the same nor others Gellius out of Taurus describes it thus When the dignity or authority of him that is wronged is to be maintaind lest pretermission of the penalty breed contempt of him and diminish his respect What is here said of authority wronged is to be understood of every ones liberty or other right wherein he is injured In Tacitus we read He should provide for his security by a just revenge That the injur'd party may not suffer wrong from the same hand three ways may be taken first by destroying the person that hath offended secondly by weaking his force that he may not be able to do hurt and lastly if he be taught by his own evil to do so no more which is the same with emendation whereof we spake even now That the injur'd party may not be hurt by others is effected not by every punishment but that which is open conspicuous and exemplary If then to these ends and within the bounds of equity vindication be directed though private if we respect the bare Law of Nature abstract from Laws Divine and Human and from all not necessary accidents to the thing it is not unlawfull whether it be made by him that is wronged or by another seeing it is consentaneous to nature that man should receive aid from man And in this sense may be admitted that Cicero having said the Law of Nature is that which comes not from opinion but innate vertue among the examples of it placeth Vindication which he opposerh to Favour and that none might doubt how much he would have to be understood by that name he defines Vindication Whereby by defending or revenging we keep off force and contumely from us and ours who ought to be dear unto us and whereby we punish offences By this natural right Samson defending himself against the Philistins saith He should be guiltless if he did return evil for evil to them and after a slaugâ—…ter made He defends his doing by the same reason saying he had served them as they would have served him The Plaâ—…ans in Thucydides Justly have we taken revenge upon them by the Law received among all men allowing recompence to enemies It is a common Law among men saith Demosthenes that we may be reveng'd of him that takes our goods by violence And Iugurtha in Sallust when he had said Adherbâ—… lay in wait against his life adds the people of Rome would do thaâ—… which is nâ—… good nor right if they hindred him from the right of Nations that is from reâ—…nge Aristides the Orator saitâ—… 〈◊〉 and Authors of Lawes and Proverbs and Orators and all men 〈◊〉 approve 〈◊〉 this That revenge shoâ—…a be 〈◊〉 of 〈◊〉 that have offerdinjury The Maccabees are prais'd by Ambrose for revâ—…ging the death of their innocent brethren even on the Sabbath The same Father disputing against the Jews making grievous complaint that their Church was fir'd by the Christians saith should I plead the Law of Nations I might shew how many Churches the Jews set on fire in the time of Julian ' s Empire where he calls it the Law of Nations to render like for like But because in our and our friends affairs we are corrupted by affection therefore many families came together into one place judges were appointed and power was given to these alone to avenge the injurd the liberty which nature had indulged being taken away from others Demosthenes It was decrecd â—…ustice should be done in all these inâ—…uries according to the Laws and not according to every ones lust and pleasure Quintilian The compensation of injury is not only against Law but peace For there is the Law the Court the judge unless one be ashamed to seek a remedy by Law The Emperours Honorius and Theodosius Therefore are judgments
that every 〈◊〉 would scape unpunished if it were sufficient in any manner to make profession of repentance God himself doth not always remit all punishment to the penitent as appears even by Davids example Wherefore as God might remit the penalty of the Law that is violent or otherwise immature death and yet inflict no small evils upon the offender so now also may he remit the punishment of eternal death and in the mean time either himself punish the sinner with immature death or be willing he should be so punished by the magistrat LXXXIX Another objection answerd about precision of repentance AGain others find fault that together with life space of repentance is also cut ost But these men are not ignorant that pious Magistrats have great care hereof and appoint not any one to to be executed without some time allowed wherein he may acknowledge his sins and seriously detest them Which kind of repentance though works intercluded by death follow not may be accepted by God as is proved by the example of the Thief crucified with Christ. If it be said a longer life might be profitable to a more serious repentance and amendment it may be answer'd Men are found sometimes such to whom that of Seneca may be spoken justly We will do you all the good that can now be done you 〈◊〉 put you to death And that also of thâ—… same Author There is but one way fâ—… them to cease to be evil that is to ceâ—… to be Likewise said Eusebius the Philosopher This then beside what hath been said in the beginning of our work be answer'd to them who would have either all or capital punishments without any exception forbidden Christians contrary to the Apostles doctrin who having included in the regall office the use of the sword as the exercise of Divine revenge in another place exhorteth to pray that Kings may be made Christians and as Kings be a protection to the innocent This cannot be obtain'd such is the improbity of a great part of men even after the propagation of the Gospel unless the boldness of some be repressed by the death of others and thus too among so many punishments and executions of the guilty innocency is hardly enough secured Nevertheless it is not amiss to propose to the imitation of Christian Rulers at least in some part the example of Sabacon King of Egypt for his piety very famous by whom Capital punishments with most happy success were commuted for tasks and malefactors condemned to work as Diodorus relates and Strabo saith there are some Nations neer Caucasus among whom the greatest offenders received not the sentence of death Nor is that of Quintilian to be despised No man will doubt but if wicked men may by any means be recalled unto a right mind as sometimes it is known they may it is better for the Commonwealth to save than to destroy them Balsamon notes that the Roman Laws which imposed penalty of death were most of them changed by the later Emperours being Christian into other punishments to the end a deeper impression of repentance might be made upon condemned persons and the continuance of the punishment might serve the more for example XC Three Inferences from the former Doctrine OUt of these things last spoken it may be collected how unsafe it is for a private Christian whether for his own or for the publick good to take punishment of any wicked man especially capital though we have said it is sometimes permitted by the Law of Nations Whence the manner of those people is to be commended amongst whom such as go to Sea have commission from the publick Power to pursue Pyrats if they find any that they may use the occasioâ—… given not as by their own adventure be publickly commanded Not unlike 〈◊〉 this is another custom receiv'd in many places that unto criminal accusations are admitted not all that please but certain men upon whom by publick authority that office is imposed that no man may do any thing at all tending to the shedding of anothers blood but by the necessity of his office Hither perteiâ—… the canon of the Eliberan Synod If any believer turn informer and by his accusation any be proscribed or put to deâ—…h Our decree is that he shall not no 〈◊〉 〈◊〉 the end receive Communion Lastly this also is understood by what hath been said that a man truly Christian is not well advised nor doth it become him to affect and thrust himself into publick Offices that have judgment of blood and think and profess it fit that power of life and death over his fellows should be committed to him as most excellent 〈◊〉 all and as it were a God among men For certainly what Christ admonisheth that it is dangerous to judge of others because such judgment as we give must we in like cases expect from God is not impertinent in this place XCI Whether human Laws that permit the killing of some men give the killers a true right before God or only impunity among men THis is a noble question and Covarruvias and Fortunius answer that such Laws give only impunity whose opinion is so displeasing to Ferdinandus Vasquius that he calls it an ungodly opinion No doubt as we have said elswhere the Law may do both in certain cases but whether it will or no is to be understood partly by the words partly by the matter of the Law For if the Law give indulgence to passion it takes away human punishment not the fault as in case a husband kill his Adulterous Wife or the Adulterer But if the Law respect the danger of future evill by delay of punishment it is to be conceived to grant right and publick power to a private man so that now he is not private Of this kind is that Law in Justinians Code under the rubric quando liceat unicuique c. Where every man hath licence given him to oppose force against plundering and pillaging Soldiers this reason being added For it is better to meet with them it time than to seek redress after the injury done We therefore permit you to defend avenge your selves and what is too late punished by judgment we suppress by edict that none spare a Soldier but use his weapon against him 〈◊〉 thief And the subsequent Law aboâ—… desertors saith Let ail men know thâ—… have power given them against publicâ—… robbers and desertors that run from thâ—… colours and all are ministers of publicâ—… revenge for the quiet of all To this purpose is that of Tertullian Against Trâ—…tors and publick enemies every man is a Soldier And herein differs the right 〈◊〉 killing exiles whom they call Banniâ—… from this kind of Laws because there precedes a special sentence here a general Edict the fact being evident obteiâ—… the force of a sentence pronounced XCII What acts are not punishable by men NOw let us see whether
by the same Alexander this is the judgment of Curtius Had these things been done against the Authors of the treason it would not seem cruelty but a just revenge Now the Children pay for the fault of their forefathers when as they were so far from betraying Miletum to Xerxes that they never saw the place Like unto this is the judgment of Arrian in another place about the burning of Persepolis in revenge of what the Persians had done at Athens To me Alexander seemeth to have done unwisely for this was no true revenge upon those Persians who were dead before That of Agathocles is ridiculous to every man who answererd the Ithacenses complaining of their damages and told them that the Sicilians had once sufferd more from Ulysses And Plutarch in his book against Herodotus saith it is not probable the Corinthians would revenge the injury received from the Samians after three generations Nor is it a sufficient defense of such deeds which we read in Plutarch of the late revenge of God For the right of God is one thing and the right of men another as we shall shew presently Neither if it be just that children should receive honours and rewards for their Fathers good deeds is it therefore just that they should be punisht for their evil For such is the matter of a benefit that it may be without injury conferr'd on any not so of punishment CXII Whether the punishment may pass without Communication of the fault Two distinctions here needfull WE have spoken of the ways whereby community of punishment happens from community of fault It remains that we see whether the fault being not communicated the punishment may For the right understanding whereof and that things really distinct may not be confounded by likeness of words we must note first that the loss directly given and by consequence are to be distinguished Directly given I call that whereby somewhat is taken away from one to which he hath a proper right By consequence that whereby it comes to pass that one hath not what otherwise he should have had to wit the condition ceasing without which he had not right An example is in Ulpian If I have opened a Well in my grouod whereby it hath happened that the veins coming to you are cut off He saith my work hath not done damage to you in that wherein I have used my own right And elswhere he saith there is much difference 'twixt bearing damage and being depriv'd of the gain which hitherto one hath received And Paulus the Lawyer saith It is preposterous to be said masters of riches before we have gotten them So the parents goods being confiscate the children truly feel the incommodity but it is not properly punishment because those goods were not to be theirs unless preserved by the parents to their last breath Which is rightly noted by Alphenus when he saith By the Fathers punishment the children lose that which should descend from him to them but those things remain entire which were given not By the Father but by nature or some other way So Cicero writeth that the children of Themistocles were in want nor thinks he it unjust that the children of Lepidus should bear the same calamity And that he saith is old and of all Cities To which custom yet the later Roman Laws added much temperament So when by the fault of the major part which as we have said susteins the person of the whole the whole is in the fault and for the same loseth Civil liberty walls and other things the particulars who are innocent do also bear the loss but in that thing which perteined not to them but by the whole Secondly we must note some evil is sometimes imposd upon one or some good is taken away by occasion indeed of some fault yet not so that the fault is the immediate cause of that action as to the right of doing So he who by occasion of anothers debt hath engaged himself suffers evil but the immediate cause of his obligation is his promise For as he who is become surety for a Buyer is not properly bound by the bargain but by his promise so also he who is bound for a delinquent is not held by the delinquency but by his engagement And hence it is that the evil to be born by him receives its measure not from the fault of the other but from the power which himself had in promising Consequent whereunto is this that according to the opinion which we believe to be the truer no man can by his becoming surety lose his life because we determine No man hath such right over his own life that he can take it from himself or engage it to be taken away by another though the antient Romans and Greeks were of another mind in this matter and therefore thought sureties were bound over to capital judgment as it is in a verse of Ausonius and appears by the famous history of Damon and Pythias and also often put Hostages to death as we will relate elswhere What we have said of life ought to be understood of members too for a man hath not right over them but for preservation of the body Now if exile if loss of money were in the promise and by the others fault the forfeiture was made the surety shall bear the loss which yet in him to speak exactly will not be a punishment The like is also in that right which one hath depending upon the will of another as the right of that which is precarious respect being had to the dominion of the things and the right of private men respect being had to the eminent dominion which the Common-wealth hath for the publick good For if some such be taken from one by occasion of anothers fault punishment is not properly therein but execution of an antecedent right in the Taker So because Beasts are not properly guilty of a fault when a beast is put to death as in the Law of Moses for copulation with man that is not truly punishment but the use of mans dominion over the beast CXII None is justly punisht in propriety of speech for anothers fault THese distinctions premis'd we shall say None free from the fault can be punisht for the fault of another The true reason whereof is not that alleged by Paulus the Lawyer that punishments are constituted for the amendment of men for it seems an example may be given without the person of the offender yet in that person that is neer him as shall be said presently but because obligation to punishment ariseth from merit and merit is personal having its original from the will than which nothing is more ours whence it is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hierom saith Neither are the virtues nor the vices of parents imputed to their children Augustin God himself should be unjust if he should condemn any one guiltless Dion Chrysostom when he had said the
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
obstinate resistance But that these things are not sufficient to justify slaughter he will easily conceive who remembreth what we have set down a fore about the just causes of killing From Captives and those that yield or desire to yield there is no danger that therefore they may be justly killed there must be some antecedent Crime and that such a one as an equal judge would think worthy of death And so we see sometimes great severity shewed to Captives and those that have yielded or their yielding on condition of life not accepted if after they were convinced of the injustice of the War they had nevertheless persisted in arms if they had blotted their enemies name with unsufferable disgraces if they had violated their faith or any right of Nations as of Embassadors if they were fugitives But Nature admits not talion except against the same persons that have offended nor doth it suffice that the enemies are by a fiction conceived to be as it were one body as may be understood by what is said above of the Communication of punishments Wâ—… read in Aristides Is it not absurd to imitate what you do condemn Plutarch for this accuseth the Syracusians that they slew the wives and children of Hicetas only for this reason because Hicetas had slain the wife sister and son of Dion Moreover the benefit which is hoped from terror for the future perteins not to the giving of a right to kill but if there is a right it may be among the causes for which that right is not remitted And For a more obstmate affection to ones own side if the cause maintained is not at all dishonourable that deserves not punishment as the Neapolitans discourse in Procopius or if there is any punishment thereof it ought not amount to death for an equal Judge would not so determine Alexander at a certain town when he had commanded all the youth to be slain because they made so sharp resistence seemed to the Indians to wage war after the manner of Robbers and the King fearing such a blemish of his Name began to use his victory more mildly It was better done by the same King to spare the Milesians because he saw they were gallant men and faithful to their own party which are the words of Arrian Phyto Governor of Regin when for defending the town so stoutly he was by command of Dionysius drawn to torture and death cryed out He was punisht because he would not break his trust and betray the place but God would suddenly revenge it Diodorus Siculus styleth these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unlawfull punishments I am very much pleas'd with that vote in Lucan May he be Conqueror who means to spare His Fellow-Citizens that adverse are Provided by the Name of Fellow-Citizens we understand not those of this or that Nation but of that common Countrey of all Mankind Least of all is Slaughter justifyed by grief and anger for some overthrow receiv'd as we read Achilles Aeneas Alexander sacrificed to their friends the blood of Captives and such as yielded Wherfore Homer justly saith of Achilles on this occasion He resolved on a wicked act XLVIII The Multitude spared Hostages spared Needless fights to be avoided MOreover where offenses are of that nature that they may seem worthy of death it will be a point of Mercy because of the Multitude of them to remit somewhat of extreme right Of which clemency we have God himself for Author who was pleased that Peace should be offerd to the Cananites and their neighboring Nations offenders in the highest degree such a Peace as allowed them life on condition of being tributaries Pertinent here is that of Seneca The Severity of a General shews it self against particulars but pardon is necessary where the whole Army is revolting What takes away Anger from a wise man The Multitude of Transgressors And that of Lucan Plagues Famine Ruines Storm or Fights have sent So many to their grave not Punishment Casting of Lots was ordained saith Cicero that too many might not be punished Sallust to Cesar No man exhorteth you to cruel punishments or bitter sentences whereby a City is rather wasted than reformed As to Hostages what is to be determined out of the Law of Nature may be seen above Of old when it was commonly believed that every one had as much power over his own life as over other things within his propriety and that that power by consent either tacit or express was devolved from every particular person upon the Commonwealth it is the less to be admir'd if we read Hostages though in themselves innoxious were put to death for the offense of the Commonwealth either as by their own peculiar or as by the publick consent wherein their own was included also But after that the more true and perfect Wisedom hath taught us that Dominion over life is excepted by God it follows that by consent alone no man can give to any power and right over the life either of himself or of his Citizen And therefore it seem'd atrocity to Narses a good General to take punishment of innoxious Hostages as Agathias tells us and other Authors say the like of others even by Scipio's example who said he would not shew his displeasure upon harmless Hostages but upon those that had revolted and that he would not take revenge of the unarmed but of the armed enemy Now that among the later Lawyers some of great name say such agreements are of force if they be confirm'd by custom I admit it if by right they mean impunity only which in this argument often comes under that appellation But if they suppose them free from sin who by agâ—…eement alone take away any ones life I fear they are deceiv'd themselves and by their perâ—…lous authority deceive others Clearly if he that comes an Hostage be or were before in the number of grievous dclinquents or if afterward he hath broke his faith given by him in a great matter posbly the punishment may be free from injury But Clodia who came not an Hostage of her own accord but by Order of the City when she had passed 〈◊〉 and escaped was not only safe but praised for her Vertue by the Etruscian King as Livy speaks in this History We must here add this all combates which are of no use to obtem right or end the War but have meer ostentation of strength proposed to them are contrary both to the office of a Christian man and to Humanity it self Therefore Rulers ought seriously to forbid them being to render in account for blood unprofitably shed to Him in whose stead they bear the sword Surely Sallust also hath commended Generals that bought their victories at the least expence of blood And Tacitut saith of the Catti a people of approved valour Their excursions and 〈◊〉 fights were seldom XLIX A Temperament about wast and
is turn'd into the affection of a friend which he explains at large Whereto agrees if a servant as it is in Tereâ—…ce defrauding his Genius hath saved any thing or by his diligence at spare timâ—… hath gotten any thing that in some scâ—… is his own Nor is it material that the Master may at his pleasure take away or diminish his servants stock for he wâ—… not do what is right if he do it withâ—… cause by Cause I understand not only punishment but the necessity of the Master for the profit of the servant is subordinate to the profit or interest of the Master yea more than the wealth of a Citizen to the City Therefore as we read that Clients have contributed to the user their Patrons and subjects of their Kinâ—… so have servants to the uses of their Masters if a daughter be to be preferred if a Captive son to be redeemed or if any like occasion had fallen out Pliny as himself saith in his Epistles granted leave to his servants to make certain testaments as it were that is to divide to give to bequeath within the family Among some Nations a fuller right of getting an estate was granted unto servants as there were several degrees of servitude To this internal justice which we expound the Laws among many Nations have also reduced that external right of Masters For among the Greeks it was lawful for servants ill used to demand that they might be sold and at Rome to fly unto the statues and implore help of the Governors against rigour or hunger or intolerable injury But 't will proceed not from strict right but from humanity and beneficence yet such as is due sometimes that after long service and very great Liberty be given to a servant After that by the Law of Nations servitude came in there followed the benefit of manumission saith Ulpianus An example whereof we have in that of Terence Thou wast my servant and I made thee free Because thou didst thy service Liberally Salvian saith it is a thing of daily use that servants though not of the best yet of honest diligence be set at liberty He addes and be not for bidden to carry with them out of their masters house what they gained in their service Of which benignity there are many examples in the Martyrologies And here also is to be praised the benignity of the Hebrew Law that commands an Hebrew servant after a certain time fulfill'd to be manumitted and not without gifts of the contempt of which Law the Prophets make a heavy complaint Plutarch reprehends Caâ—…o major because when his servants were aged he sold them unmindful of that common nature of mankind A question here is incident whether it be lawful for him to fly who is taken Captive in a just war We speak not of him who by his own proper fault hath deserv'd that punishment but of one that by publick action is fallen into this fortune It is the truer answer that it is not lawful because by the common agreement of Nations he owes his service in the Name of the Commonwealth Which yet is so to be understood unless intolerable cruel usage impose upon him this necessity Another doubt is whether and how far they that are born of servants are under Dominion by internal right a doubt which may not be omitted here by reason of the special consideration of Captires in war If the parents by any crime 〈◊〉 theirs had deeserv'd the punishment 〈◊〉 death their Children which they hoped for might to save their lives be bound over to servitude because otherwise they would never be born For even for maintenance which they would otherwise want parents may sell their Children Such is the right which God alloweth the Hebrews over the posterity of the Canaanites But for the debt of the Common-wealth they which were already born as a part of the Commonwealth might be bound no less than the Parents themselves Howbeit as to them who are not yet born this cause seemeth not sufficient but another is required either from Parents express consent together with a necessity of maintenance and that for ever or from the allowance of maintenance and that only till the work hath paid for all that was layd out If any further right is given the Master over these â—…t seemeth to proceed out of the Civil Law favouring Masters more than is enough Among the Nations with whom that Law of servitude by war is not in use it will be best that Captives should be exchanged next that they should be dismissed at a reasonable rate What this â—…s cannot precisely be determined but Humanity teacheth it ought not be so heightned but that the residue of the Captives estate may supply him with all Necessaries In some places this is defined by Covenants and Customs as among the Greeks of old Mina now among Soldiers a months pay goes for a ransome Plutarch relates that heretofore wars were waged between the Corinthians and Megareans mildly and so as became men of the same blood If anyone were taken he was entertained by the Taker as a Guest and sent home upon promise of a price for his deliverance That of Pyrrhus commended by Câ—…ro argues a more noble mind Nec mî aurum posco nec mî pretium dederitis Ferro non auro vitam cernamus utrâ—…que Quorum fortuna belli fortuna pepâ—…rcit Eorundam libertati me parcere certâ—… est Apud Ciceronem de Offic. No gold for me no price do I require To fight it out with steel is my desire The valiant men to whom good fortune gave Their life by my gift Liberty shall have Pyrrhus no doubt believed his 〈◊〉 just nevertheless he thought fit to spâ—… their liberty who on probalâ—…â—…ause 〈◊〉 engag'd against him The like act of Cyrus â—…s celebrated by Xenophon of Philip the Macedonian after his victory in Chaeronea by Polybius of Alexander toward the Scythians by Curtius of Ptolomy the King and of Demetrius contending with one another not more in war than in benignity toward Captives by Plutarch And Dromichaetes King of the Getes having taken Lysimachus in war made him his guest and prevalid on him so far that having experience both of the Getick poverty and courtesy he chose rather to have such men for his friends than enemies LIV. A Temperament about acquisition of Empire THat Equity which is requir'd or that Humanity which is commended toward particular persons is so much more requir'd or commended toward Nations or the parts of Nations by how much more signal is the injury and the benenefit done to many By a just war as other things may be acquired so also the right of a Ruler over people and the right which the people themselves have in the empire but to be sure so far as the measure either of the punishment arising from the fault or the measure of some
And besides there is one thing more which may be feared most the Boldness of desperate men like unto the fiercest biting of dying beasts But if both Parties seem to themselves equal that indeed in Casaâ—… judgment is the best time to treat 〈◊〉 peace 〈◊〉 est they have Both some confidence in their own strength And wheâ—… Peace is made on whatsoever terms it is by all means to be preserved by reason 〈◊〉 that sanctimony of Faith aforesaid and with all care must be avoided not only perfidiousness but also whatever exaspâ—… rates the mind For what Cicero said 〈◊〉 private you may apply as well to theâ—… publick friendships As they are all to 〈◊〉 maintained with exact fidelity and Reâ—…gion so those especially which after câ—…mities are made up again and restored GOd who alone can do it inscribe these things in their hearts who have the Affairs of Christendom in their hands and grant them a Mind intelligent of Divine and Human Right and ever remembring that she is elected by God to govern man a creature most dear unto himself THE END OUT OF THE LIFE OF S. LUDOVIC HIS CHARGE To his Son IF any Controversy or action be rais'd against thee inquire into the Truth as well on the contrary part as on thy side If thou hast any thing of anothers taken by thy self or by thy Ancestors Restore it quickly Wage no War against any Christian but by the Counsel of Many and when War is unavoidable And in War do no hurt to Church-men and those that have done thee no wrong If Seditions rise among thy subjects quiet them as soon as thou canst See often what thy Officers do and examin their ways and reform what is amiss Let no soul sin reign within thy Kingdom Out of the same King's life written by Joinvil chap. 89. THe King 's great Counsellors reprehended him oft for taking so much pains to make peace among his neighbours saying He did ill to end their wars which would be for his Advantage The King answerd You say not well For if my neighbouring Princes did see me cheriâ—… their Wars they would say I had a pâ—… upon them and hate me and take a time to do me and my Kingdom a mischief Moreover I should provoks the wrath of God against me who blesseth the Peace-makers Certain it is the Burgundians and Lorainers perceiving the Kings Goodness and Justice were so loving and observant of him that they referred theiâ—… differences to his Arbitration I have often seen them come to him for that purpose to Paris and other places wheâ—… the King was resident MEMORIALS OF THE LIFE AND DEATH OF H. GROTIUS LONDON Printed by T. Warren for W. Lee And are to be sold at his shop at the sign of the Turks-head in Fleetstreet 1654. Memorials of the Authors Life and Death He that hath survâ—…yed with a judicious eye the various choyce Learning conteined in this Book cannot but desire to know more of the Author than what the Title shews him That He was The Illustrious Hugo Grotius Men are naturally apt to enquire as He observes and to know as much as they can can of the person whose Actions or writings have any way drawn their attention Who is this man that hath written such things To write the life of this Man perfectly were an enterprize for one more versed both in Books and Men For Me it will be enough to collect out of the Authors own Writings And indeed to describe Grotius who is so able as Grotius and of some of his friends what may represent in some sort so excellent a person to my Readers view and conduce to the perpetuating of his happy Memory among us Englishmen to whom he bare a special Affection And first we will represent that summary of his first years which we find in Meursius 's Athenae Batavae to this effect Hugo Grotius was born at Delf in Holland 4. eid April Anno 1583. He was of an Antient and Noble House His Grandfather of the same name was learned above the model of those darker times and well skild in the three principal Languages Latin Greek and Hebrew His Uncle Cornelius Grotius was professor of the Civil Law at Leyden where he flourished in the good esteem and favour of the best men His Father was Joannes Grotius Curator of that University whose Poems are extant with Lipsius Letters to him and Dousa's verses whose name also hath adorned many learned Mens Books dedicated to Him Being blest with this Hopeful son he used all pains and care in his good education and cherished this great Wit so well that when he was but eight years old viz. Anno 1591. He did fundere versus make verses ex tempore and disputed twice publickly in questions of Philosophy Anno 1598. aet 15. He travelled into France in the train of that incomparable person Joannes Oldenbarneveldius Embassador from the States to the Great Henry and returned honour'd with Royal Bounty and the Friendship of Illustrious Men having before that time begun to set forth notes upon the seven Liberal Arts of Martianus Capella When he had after studied some years at Leyden much endeared unto Scaliger his Father fearing the yong Scholars mind should by the Amenity and delight of human literature and Poesy be drawn away from more profitable employment he was taken off and ascribed among the Advocates at the Hague Anno 1599. and soon after pleaded Causes Yet did not he addict himself so much to that profession but that his Genius led him back and made him often revisit his former studies of Humanity For which he was most dear to the French Embassador Buzanvall to Janus Dousa the Father and many other Persons of Honour About this time the States of Holland began to use his service in penning the History of the most famous War in the whole world Afterward Anno 1607. Commended by the Suffrages of the Courts nominated by the States and elected by the most potent Prince the Admiration of all other Princes Grave Maurice he became Fisci Advocatus Advocate of the Treasury and behaved himself so well in this most weighty office that he received from his superiours a most ample testimony of his diligence and integrity Here perceiving the Trade into India of great Importance to his Countrey that he might stir up the spirits of his Countrymen thereto he wrote a Book De jure Commercii Indicani Again observing after the Truce with the Spaniard the peace of the Common-wealth began to be disturbed by certain dangerous Innovators judging it to be the Duty of a good Patriot to oppose himself against their Designs and to commend unto All the present State he set out a Dissertation entituled De Antiquitate Reipublicae Bataviae After the death of Elias Olden Barneveldius a man not less Noble for his good parts than his family Our Grotius sufferd himself to be chosen into his place Syndic of
advancing his own way and of separating himself from others and keeping a large distance under pretence of purity But all these things ought to deterr no man from effecting a most excellent work if he be able if he cannot effect it certainly he may have comfort of his Conscience and please himself in the thought of so noble an Attempt Again to the same Duraeus Both the Embassadors of England think as I also do that these Times will not permit a General Assembly of Protestants Times wherein they do not enjoy so much as that common peace of humane Society That it will therefore be best as the Kingdome of Sueden and England are joyned together in Friendship and haply e're long will be confederate So also that the Churches of these Kingdomes set forth a publick profession of their Concord and first give the Neighbours of Sueden the Danes and Norwegians and then others too an example for them to imitate Such a Body of Churches being once constituted there is hope their Neighbours one after another will by degrees close with them And this is the more to be desir'd by Protestants because Many do every day forsake them and joyn with the Romanists for no other Reason but because they are not one Body but distracted parties separated Congregations having every one a peculiar Communion and Rites and moreover striving one to disgrace the other with reproaches That it concerns the Protestants these things should be remedied especially seeing so great a Conspiracy of their Adversaries against them who doth not perceive Nor was our Author zealously affected onely to the peace of Protestants but of all Christendome witness his Via ad pacem Ecclesiasticam in the entrance whereof he hath a sweet Epigram in praise of Moderators to this effect Qui gaudes Batavis c. That Roterdam Erasmus stands in Brass Yet this Reward to 's worth inferiour was That mild Cassander's Works are published Thanks to Cordesius and by thee are read That Nectar drops from sweet Melancthon's vein Wicel and Modreve write in the same strein That in Spalato's Books good Votes are seen For Unity ill lost are Two of Ten That Great Great Britains King hath wisely done In signifying his mind by Casaubon Who joy'st in all this view with gentle look Our way of Reconcilement in this Book Good if not best 'T will please thou mayst presage Though not the Present yet the Future Age. Add only this passage of His out of his Answer to Dr. Rivet where he hath words of this sense I have always loved Peace and do love it and to it do I direct my labours both publick and private that we may obtein it first between Empires professing Christ and then in the Church which Christ would have to be One. And I mean Peace without injury to that Truth which the Scripture and perpetual Tradition consign unto us And seeing Peace though it were made cannot be kept without a certain Order of Government I love also that order which the long experience of old times hath approved It cannot be but the Lovers of these things must incur the hatred of them that seek advantage by wars and discords such as our Age abounds with Such enemies of Peace I well foresaw would rise up against Me and my endeavour of Peace I easily suffer it and comfort my self with the Conscience of my good Design For the promoting whereof I have said that which seemed to me most profitable according to the measure of my understanding and Reading with some Regard also to the times wherein we live To the order of Government here named pertains what he speaks elsewhere For if the perpetual Custom of the Universal Church introduced as we may believe and the Antients did believe by the Apostles themselves be of any value neither can a Presbyter be ordained but by a Bishop nor a Bishop but by two or more Bishops The Contempt of this Holy Order hath brought in so much Licence that whosoever can lead the common people by the ears maketh to himself a right of gathering a new Church Here shall I insert that Elogy of our Grotius which I received from a learned man * that had the honour to be acquainted with him in France He was a Man wonderfully courteous and affable very free in communicating his knowledge in any point of learning very ready to give his advice touching any course of study what Authors were fittest to be read His Latin in his discourse was altogether such as we see in his Books ready fluent easy and unaffected so that I verily think no man ever spake more fluently in his Mother tongue He was a most indefatigable Student and a man of a singular ready memory and clearness of judgment A great Lover of the Union and Peace of the Church an Approver of the Church of England as most orderly reformed He was of a most sweet Christian disposition far from any thought of revenge for any Injury One time coming from an Audience at S. Germans the Secretary of Ceremonies being in the Coach with him it chanced that in one place a great number of people were in the way seeing an execution His Coachman and Postilion driving boldly through the company the Archers which use to attend executions with short pieces being angry to see the execution disturb'd made after the Coach shot his Postilion and Coachman and through the Coach even through his Hat And the King offering to hang three or four of them at his gate if he pleased he pardoned them All. In his Journey between France and Sueden he dyed putting off Ministers that came to him with Non novi vos as they say But how little of probability there is in that saying or any such like may appear by this Narrative of his Death which I have translated out of Dr. Casaubon as followeth Because we desire the Memory of this Great Man should be dear to all Lovers of Vertue and Learning according to his most High Deserts toward the Common-wealth of Good Letters I have easily obtained of My self to insert here and to communicate to the candid and ingenuous Reader what hath come unto my hands by the help and favour of some Friends concerning the End of so excellent a Person in a Letter of Quistorpius the primary Professor of Theology at Rostoch set forth at Amsterdam You are earnest with me to relate the last act of that Phoenix of learned men Hugo Grotius and how he behaved himself when he took his leave of this world Here take it briefly thus He took ship at Stockholm bound for Lubec At Sea he met with a great Storm and having been beaten with it and tossed for the space of three dayes he suffers Shipwrack and is cast upon the shore of Cassubia sick and weak Thence in a very incommodious Journey and a rainy season passing sixty miles and more he is brought at length
oath 223 Servitude 414 Sepulchers 557 Ships of enemies 564 Single combate 194 Simplicity 199. 200 Simulation 486 Solemn war 76 Soldier resisting 137 Society 151 Solomons proverbs 252 Soldiers of fortune 461 Spoil 553. 559 Spies 448 Speech 492 Strangers 537 States 90 Stronger 447 Sute 39 Subjection 47. 86. 143. 156 Subjects profit 96 Subjects War 135 Succession 101 Superiors 136. 240 Suppliants 388. 596 Supremacy 137 Suffrance 382 Surety 398 Succour 458 Supplie 480 Sword 26. 72 Swearing 234 T TEmperament 581. 604 Tertullian 51. 157 Temporary right 102 Terrour 599 Theseus 294 Thebaean Legion 65. 158 Thief 68. 189 Tithe 558 Tribute 35. 132 Trajans saying 149 Traitors 166. 304. 508 Truth 490 Tutor 40. 96 Turks 256 Tyranny 95 Tyrant 237 V VAlour 59. 505 Valentian's answer 94 Vengeance 47 Unequal league 123 Voluntary Law 6. 7 Usufructuary 102 Usurper 169 W WAr 1 War private 66 War publick 76 War for punishment 350 War for religion 270 War without cause 409 War doubtful 426 War declined 440. 448 War for others 451. 457 War solemn 76. 518 Waste 553. 604 War unjust 575 Words of Art 261 Women 316. 538. 551. 589 X XEnophon's Cyrus 41 Y. YEa yea 242 Z ZEal 327 THE END Books printed for William Lee and are to be sold at his shop at the Turks-Head in Fleetstreet together with the Prices of some of them ANnotations upon all the New Testament by Edward Leigh Esquire Master of Arts of Magdalen-Hall in Oxford 1650. A Systeme or Body of Divinity in ten Books wherein the Fundamental and main grounds of Religion are opened by Edward Leigh Esquire Master of Arts in Magdalen-Hall in Oxford in Folio 1654. about 240. Sheets The Saints Encouragement in Evil times in 12. 1651. written by the said Author Edward Leigh An Exposition of the Prophecy of Haggee in fifteen Sermons by that famous Divine John Reynolds D. D. in 4. 1649. An exposition of the Psalms of degrees The Young mans Tutor both writ by T. Stint in 8. Heresiography or a Description of all the Heresies Sectaries of these later times of Ranters and Quakers by Eph. Pagit 4. with new Additions 1654. Contemplations Sighs and groans of a Christian published by W. Stiles Esquire of the Inner Temple 12. The Saints Comfort in evill times 12. Gods revenge against Murther in thirty Tragical Histories by J. Reynolds in Fol. Sylva Sylvarum or a Natural History in ten Centuries Whereunto is newly added The History of Life and death or the Prolongation of Life both written by the Right Honorable Francis Lord Verulam in Fol. 1651. The Magnetique cure of Wounds Nativity of Tartar in Wine Image of God in Man Aâ—…o another Treatise of the Errors of Physicians Concerning Defluxions both published in English by Dr. Charleton Physician to the late King 4. 1650. The darkness of Atheism dispelled by the light of Nature written by the said Author in 4. 1653. A Discourse concerning the King of Spains Surprizing of the Valtoline Translated by the Renowned Sir Thomas Roe many times Embassador in Forein parts 4. The Roman Foot and Denaries from whence as from two principles the measure and weights may be deduced by John Greaves of Oxford 8. 1647. A Treatise of the Court Written in French by that great Counsellour De Refuges many times Embassador for the two last French Kings Englished by John Reynolds 8. Amâ—…nta A Pastoral Translated out of Tarquata Tasso 4. The Hebrew Commonwealth Translated out of Petrus Cuneus in 12. 1653. both Translated by Clem. Barksdal Hugo Grotius his two Treatises Of God and his Providence and of Christ and his Miracles together with the said Authors judgment of sundry points controverted in 12. 1653. Certamen Religiosum or a Conference between the late King of England and the late Lord Marquess of Worcester concerning Religion 4. 1652. The Battel of Agâ—…ncourt fought by Henry the fift the miseries of Queen Margaret with other Poems by Mic. Drayton Esquire 8. The Odes of Horace Selected and translated by Sir Thomas Hawkins in 12. The Spanish Gallant instructing men in their Carriage to be beloved of the People Youths Behaviour or Decency in conversation amongst men with new Additions of a Discourse of Powdering of Hair of black Patches and naked Brests 8. 1651. The Tillage of Light A Treatise of The Philosophers stone 8. The Right of Peace and War in three Books written in Latin by the Illustrious Hugo Grotius together with the life of the said Author in English 8. large 1654. A Sermon of the Nature of Faith by Barten Holy-day Doctor of Divinity 1654. The Innocent Lady or the Illustrious Innocent written Originally in French by the learned Father de Ceriziers of the Company of Jesus rendred into English by Sir William Lower Knight 1654. A Disputation at Winchcomb in Glocester-shire wherein is much satisfaction given in many fundamental points of Religion in the presence of many Eminent Persons 1654. A brief discourse of changing Ministers Tithes into Stipends or into another thing 1654. Books printed for W. Lee and some others and are to be sold at the Turks Head in Fleetstreet together with the prices of the said Books THe Christians Warfare againg the Devil World Flesh by John Downam Fol. 16 s. Second Epistle of Saint Peter by Tho. Adams Fol. 1633. 20 s. A sixfold Commentary upon Genesis wherein six severall Translations are compared by Andrew Willet in Fol. 16 s. The Theater of Plants or a large Herbal by John Perkinson Apothecary 2lb Orlando Furioso Englished by Sir John Harrington with the Translators additions of his Epigrams in Fol. 8 s. Mare Clausum by John Selden Esquire of the best Impression in Fol. 6 s. Books printed for William Lee M. Walbanck D. Pakeman and G. Bedell REports or new Cases of Law by John March of Grayes-Inne Barrester 4. 1648. 2 s. 8 d. The Attorneys Academy being the manner of Proceeding in all the Courts of Records at Westminster and other Courts of Law or Equity 4. 1647. 3 s. The learned Argument upon the three learned Readings 1. By the Lord Dyer 2. By Sir J. Brograve 3. By Th. Risden Esquire Writ of Habeas Corpus in Court of Upper Bench with the opinion of the Court thereupon The Touchstone of Common assurances by W. Shepheard Esq of the midde-Temple 4. 1651. 5 s. 6d The book of Oaths and the several Forms thereof both Antient and Modern in 8. 1649. Fleta an antient Manuscript of the Laws of England published in print by John Selden Esq and is to be sold by W. Lee M. Walbanck and D. Pakeman 4. 1647. 8 s. 6 d. Books printed for W. Lee D. Pakeman and G. Bedell and are to be sold at their Shops in Fleet-street BIblia Sacra sive Testamentum vetus ab Jun. Tremelio Fâ—…a Junio ex Hebraeo Latinè redditum Testamentum Novum à Theod. Beza è Graeco in Latinum versum Argumentis Capitum addit is versibusque singulis distinctis seorsum expressis cum