Nature than the destruction of an enemy IV. That War is not repugnant to the Law of Nations By the Law of Nature then which may likewise be called the Law of Nations it is evident that all War is not to be condemned nor yet by the voluntary Law of Nations as Histories will sufficiently instruct us wherein the Laws Customs and manners of all people are faithfully recorded Nay by the very Law of Nations were Wars introduced saith Hermogenianus so he that wrote the lives of men famous in their several ages in that of the life of Themistocles tells us That he acknowledged that it was by his advice that the Athenians surrounded their City with Walls which notwithstanding by the common right of all Nations they might do whereby to defend their publick and private Gods from the sury of their enemies Yet whereas I said before that by the Law of Nations War was at the first introduced the words will as I conceive admit of a better sense than what at the first view they seem to import as namely that there are some certain forms and Ceremonies introduced by the Law of Nations which by the consent of Nations do give such and such peculiar effects to such Wars as have them whence ariseth that distinction whereof we shall hereafter make use between a War that is solemn by the Law of Nations which also is said to be just that is full and absolute and a War that is not solemn yet ceaseth not therefore to be just that is congruous to Right for even other Wars so as the cause be good the Law of Nations doth neither approve of nor yet impugne as shall be shewed more at large hereafter It is ordained as a Law amongst all Nations Lib. 43. saith Livy that Arms may be repelled with Arms. With whom agrees Florentinus It is generally consented unto by all Nations that we may forceably drive away all violence and wrongs offered unto us whereby our lives are endangered Which justifies all Wars that are merely defensive for as much as Nature is much better pleased with its own preservation than with the destruction of enemies V. Nor to the Voluntary divine law before Christ But the main question is Whether it be agreeable to the divine voluntary Law to make War And here if any shall object that the Law of Nature being immutable nothing can be decreed by God himself contrary to it I answer that this is true in such things as the Law of Nature doth expresly either command or forbid But not in such things as by the Law of Nature are only lawful only that is tolerated for such as these because they belong not properly to the Law of Nature but are without its jurisdiction Obiections answered may be either commanded or forbidden The first objection that is brought out of the holy Scriptures against War is that Law given to Noah and his posterity Gen. 9.5 6. Gen. ◠5 6. Where God speaks thus Surely the blood of your lives will I require at the hands of every beast will I require it and at the hands of man at the hand of every mans brother will I require the life of man Whosoever shed mans blood by man shall his blood be shed for in the image of God made he man Some there are that would have the former words of requiring blood understood in the largest sence and the latter words of shedding blood they would have to be a commination and not an approbation but I like neither For the prohibition to shed blood is of no larger extent than that in the Moral Law Thou shalt not kill which doth neither prohibit a Magistrate from putting to death an obstinate Malefactor nor doth it forbid a lawful war Neither doth the one or the other so much enjoyn any new thing as revive and proclaim that old Law of Nature which through evil custom had been almost defaced where by killing and shedding of blood we are to understand such a manner of putting a man to death as implies some vice As by the word Homicide or Murther we understand not every putting a man to death but the wilful destroying of an innocent person But that which follows concerning the shedding of blood for blood is to be understood as I conceive not so much of the bare fact as of the right to do it which I thus explain That every man should suffer as much evil from others as he hath done unto others is not naturally unjust according to that old Rhadamanthaean Law To suffer as we do is just and right That Phalaris should be tormented in his own Bull That he that intended mischief to another should suffer the same mischief from another is justissima patiendi norma as Seneca speaks The most equal rule of sufferance that can be ordained Out of a deep sence of this natural Equity it was that Cain his hands yet reeking in his brothers blood past this sentence upon himself And it shall come to pass that whosoever finds me shall kill me Gen. 4.14 But God in the infancy of the world either by reason of the scarcity of men or because this sin was rarely practised and so the less need of exemplary punishments to deter them did by an Edict repress that which seemed naturally to have been lawful and adjudged the Homicide to wander as a vagabond forbidding all men to have any commerce or to make any contract with him yet would he not have his life taken from him Thus also did Plato ordain among his Laws and that this punishment was much used among the ancient Greeks Euripides testifies in these words How wisely did our Ancestors decree That he that guilty was of blood should flee Far from Commerce or sight of men that he Punish'd by flight rather than death might be To the same purpose is that of Thucydides It is very probable that anciently small punishments were awarded to great crimes but at length those being slighted they proceeded to death Servius upon the first book of Virgil descanting upon these two words Solvetis Luetis saith That these words were derived from the payment of money Antiquorum enim poenae omnes pecuniariae fuêre For among the Ancients all punishments were pecuniary The like we find in Lactantius Hitherto it was accounted impious to put men to death though never so wicked grounding their conjecture upon that one notable example of Cain That it was not the will of God that Homicides should be so punished whereupon it grew at length into a Law so that Lamech not long after having committed the like sin or rather if he did commit the like for Moses his words will bear this sence yet by this one example promised to himself the same impunity Gen. 4.24 Nevertheless though before the Flood in the age of the Giants through the remisness of punishments men grew savage and outragious killing each other like beasts yet when after the flood the earth
but that which is to come Surely Christ commands us to forgive even this also first in case there appear any signs of repentance in the person offending Luke 17.3 Luke 17.3 And a plenary remission the Apostle requires Ephes 4.32 that is Such a remission as restores the Offender into the same degree of friendship wherein he was before the sin was committed whence it follows That nothing ought to be exacted from him by way of punishment Besides though there be no such signs of repentance yet if the damage we sustain be not very great no greater than the loss of ones Coat Christ by this Precept restrains us from requiring any revenge at all Of the same opinion were both Plato and Maximus Tyrius The like doth Musonius profess of himself namely That for small reproaches as a box on the ear c. he would neither sue any man at the Law nor perswade any man so to do because such as these are much better forgiven or dissembled But in case we cannot pass it by without giving encouragement to greater injuries either to ouâ— selves or others then we may provide for our own safety yet with the smallest damage we can to him that hath provoked us The Jews might buy off their Talio For even the Jews themselves as Josephus tells us besides the costs and charges of the hurt done whereof we have a distinct Law Exod. 21.19 did usually buy off their Talio with a Summ of Money The like they did at Rome as Favorinus in Gellius testifies Lib. 20. c. 1. So Joseph the softer Father of Jesus believing his Wife to be with child by adultery chose rather to dismiss her privately than to expose her to shame and this he is said to do because he was a just man that is as St Ambrose expounds it A man free not only from the cruelty of revenge but from the severity of an accusation for as Lactantius had before said Vid. infra Sect. 15. Lib. 6. c. 10. A good man ought not to accuse any man of a crime that is capital Thus Justin Martyr concerning those that bitterly accused Christians We saith he would not have them punished for they are sufficiently miserable in their own wickedness and in their ignorance of what is good Lastly Those punishments that are executed not for any private but for the publick good either by killing or restraining the person nocent to deter others or to prevent future mischiefs are not forbidden by Christ as we have elsewhere proved by a most irrefragable Argument seeing that when he gave those Precepts Capital punishments not forbidden in the Gospel Exod. 21.14 Numb 33.14 Deut. 29.13 Vide Aug. Qu. Evang. l. 1. c. 10. he gave also this Testimony of himself That he destroyed no tittle of the Law But the Law of Moses which in these things was certainly in force so long as the Jews had a Commonwealth did peremptorily enjoin the Magistrate to punish Capital Offenders with death And if Christ's Precepts could consist with Moses's Law as it exacted punishments even such as were capital certainly they may consist as well with those humane Laws which in imitation of the Divine Law do require and inflict the same punishments to the same end Josephus highly extols the Pharisees for their clemency and moderation in punishments whence arise so many exceptions in their Laws concerning publick punishments and this also amongst others That though the Offender must certainly be put to death Talmud Tit. Keluboth yet was the manner of his death to be gentle and with the least of torments XI The Argument from Gods mercy in the Gospel answered Yet some there are who in defence of the contrary opinion do thus plead that God especially in the new Covenant doth declare himself to be full of mercy and forbearance which all Christian men yea even Magistrates as Gods vicegerents ought to imitate which I grant to be in some measure true but not in that large and unlimited sense as they would have it understood For that infinite mercy of God declared in the New Covenant doth principally respect those sins which are committed against the Laws given to Adam and the sons of Noah or against those Laws given by Moses before the publication of the Gospel as will appear Act. 17.36 Rom. 2.25 Act. 13.38 Heb. 9.15 For those that are committed after especially if attended with contumacy and stubborness are threatned with Judgments of another nature much more severe than those threatned by Moses as Heb. 10.29 Matt. 5.21 22 28. Neither are they threatned with Judgments of the other life only but very often with Judgments of this life as 1 Cor. 11.30 Neither doth he at any time indulge pardon to a sinner nisi ipse de se quasi poenas exigeret unless he that sins do as it were inflict punishment upon himself 1 Cor. 11.3 And that with a great deal of sorrow 2 Cor. 11.27 But here they farther object that in imitation of Almighty God the Magistrate should not punish those at least that are penitent But to pass by that it will be a difficult thing for the Magistrate to discern who are truly penitent for if outward shews and professions of penitence would be sufficient no man would smart for his sin we find by the example of King David that God doth not always remit all kinds of punishment no not to the penitent for though he do remit or abate of the severity of the Law so that he doth not punish him with a violent or otherwise untimely death whereunto his sin hath subjected him yet whilst he suffers him to be chastised with the rods of men it plainly shews that his mercy is as well seen in the extenuation of punishments as in the total and absolute remission of them there is much of mercy and lenity in the mitigation of torments and lesser judgments deserve not the name of judgments when we know that we have deserved greater even so now God may and undoubtedly doth express his mercy to a sinner in remitting the punishment of eternal death which every sinner doth contract for his sin though he do visit him with an untimely death either immediately by himself or mediately by the hand of the Magistrate XII And that of depriving a sinner of the time of Repentance But others there are again that urge that together with the life of a sinner all opportunity of repentance is quite cut off whereunto we answer that no man is so suddainly snatcht away but he is allotted a certain time to make his peace with God And although he be not permitted to make a real expression of his conversion by his life and conversation yet that God doth sometimes accept of the will for the deed in such cases is most apparent by the example of the Thief upon the Cross And if it be yet objected That a longer life might haply conduce much to the glory of God in the
perfecting of this work of repentance in him I answer That God haply might as probably have received as much dishonour in his recidivation or falling back to his accustomed wicked courses and so that of Seneca might very fitly be applyed Quod unum bonum tibi superest representabimus Lib. 1. de Ira c. 16. c. 15. mortem that only good thing that thou art capable of we represent unto thee which is death And that also of the same Seneca Quo uno modo possunt desinant esse mali there being no way left for them to cease to sin but to cease to live whereunto we may add that which the same Author saith elswhere Talibus ingeniis vitae exitus remedium est optimumque est abire ei qui ad se nunquam reverturus est De Benef. l. 7. c. 10. death is to such the only remedy it being best for him to dye that lives without any hopes of being cured Let these therefore together with what we have said in the beginning of this work suffice for answer to those who hold that either all punishments or at least such as are capital are without any exceptions prohibited unto Christians the contrary whereunto we are taught by the Apostle who within the duty of a King includes the power of the Sword as being the Executioner of divine vengeance and in another place he tells us that we ought to pray that Kings may be made Christians and that as Kings they may protect the innocent which in this general corruption and depravity of mankind even since the times of the Gospel cannot be done unless by the death of some the impudence of others be repressed seeing that all the publick punishments that are every where inflicted upon the guilty are not as yet found sufficient to guard or protect the innocent Neither is it altogether impertinent to propose unto all Christian Magistrates the example of Sabacon King of Aegypt for their imitation a man highly famed for his Piety by whom all capital punishments were changed into some servile works that were profitable to the Common-wealth and that with good success Lib. 1. as Diodorus testifies Strabo relates the like of some Nations inhabiting about Mount Caucasus where saith he They put no man to death although they offend never so highly yea and among the Romans no Citizen was ever known to be put to death or punished with stripes after the Porcian Law was made unless for Treason or being first condemned by the people of Rome Neither is that of Quintilian to be slighted No man will doubt saith he but that if a Malefactor could be reclaimed and become a new man as some such there may sometimes be it were better for the Common-wealth that he should live than dye It is observed by Balsamon That those roman-Roman-Laws which condemned men to death were most of them changed by the Christian Emperours into some smart punishment whereby both the condemned Party was more sharply urged to repentance and others more affrighted by their lasting punishment Nicetas records it See Chap. 24. Sect. 2. That during the Reign of Johannes Comnenus no Malefactor was at any time put to death And when some ranting Donatists had killed two Catholick Priests most barbarously putting out the eyes and cutting off the fingers of one of them Grat. l. 23. q. 5. Circumcelliones St Augustine besought Count Marcellinus not to punish them by that strict Rule of retaliation whereby they should suffer according to what they had done but that he would suffer them to live and to enjoy their limbs yet to restrain them from the like outrages by some hard yet profitable labour or to reclaim them from their madness by some smarting punishment For this also saith he is called a condemnation And who understands not this to be as well a benefit as a punishment whereby neither are the Reins let loose to licentious cruelty nor that wholesome Physick withheld that should work Malefactors to repentance An House of correction strikes more terrour to an idle Rogue than the Gallows and to be chained to an Oar than Death it self XIII The imperfect Divisions of punishments rejected By that Division which we have made of the ends for which punishments were ordained it seems that somewhat was omitted by the Philosopher Taurus out of whom Gellius saith thus Whensoever there shall appear in a Malefactor great hopes of reformation without punishment or no hopes at all of his amendment or that there is no necessary cause to fear the dignity of the Person against whom the offence is committed should be slighted or contemned or that the sin is not such as requires the impression of some necessary fear to preserve others from it then wherein soever it is that men offend it is not worth our study to inflict punishments For he seems thence to infer That punishments are needless if any one of these ends be wanting whereas on the contrary all these ends must cease that there be no need of punishments Besides he omits this end namely When an incorrigible Sinner 〈◊〉 taken away to the end that he may not commit more or greater sins And what he there said concerning the loss of the dignity of the person against whom the sin is committed was to be extended to other damages which we may have just occasion to fear De Clem. lib. 1. c. 21. Much better is that Partition which Seneca makes In revenging injuries saith he the Law looks at three things which every Magistrate ought likewise to pursue namely That either he whom we punish should amend his life Three ends of punishing or that by his punishment others should be meliorated or that incorrigible Malefactors being taken away they that are innocent should live more securely In Legatione The two former of these Philo commemorates Punishment oftimes corrects and amends a Malefactor but if this fail it doth certainly meliorate those that come to the knowledg thereof For many men are instructed by other mens harms and grow more watchful over themselves by fear of the like sufferings But in that Division of Seneca if by those that are innocent we understand as well those who may hereafter be injured as those who have already been injured we have a full and perfect Partition especially if to those two words taken away we adde or suppressed For both exile imprisonment and whatsoever else it is whereby a man is disabled to do wrong may be hither referred But that distribution which Seneca elsewhere makes is more imperfect where he saith That in punishments this Rule is to be observed That some are inflicted to reclaim those that are wicked others to take them away And yet that of Quintilian is yet more imperfect That every punishment appertains not so much to the sin as for example XIV Not lawful for private Christians to inflict capital punishments though by the Law of Nations they may From what hath
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
children Answered It is not for you to know what I intend to do with them that you your selves may perish the more uncomfortably But withal we must note That God doth not use this severity but for such sins as are committed properly in the reproach of himself as for the sins of Idolatry Sacriledge Perjury and the like Neither did the Grecians themselves think otherwise For all those sins which were thus visited on posterity which they called stupendious were of this sort 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereof Plutarch discourseth excellently in his Book concerning the late revenge of God And in Aelian we find a Delphick Oracle to this very purpose denouned against the sin of Sacriledge At scelerum fontes divinum persequitur jus Necpote vitari non si genus ab Jove ducant Sed capiti ipsorum qui nascunter ab ipsis Imminet inque domo cladem subit altera clades Vengeance the guilty doth from Heaven attend Which none can ' scape though they from Jove descend Upon themselves and on their Children all Plague after Plague throughout the house shall fall The like we have in Libanius who speaking of some Sacrilegious persons saith Whereof some have already been punished others not yet but none shall escape and not only they but their Childrens Children after them This is also confirmed by Strabo and Gellius in the story of the Gold stoln out of Temple at Tholouse Concerning Perjury we have already given the like testimonies above and concerning Idolatry we have a most pregnant example in Jeroboam where it is also to be observed That although God doth thus threaten to visit the sins of Parents upon their Children yet he doth not always do it especially if any spark of vertue appear in them or if the Child do publickly declare his detestation of his Fathers wickedness as Andron Pelaeologus did as is evident Ezech. 18. and by divers examples alledged by Plutarch in the place before recited And in the New Testament where there is a clearer discovery made of the punishments that attend us after this life than in any of the Prophets yet is there no commination that extends beyond the person sinning whereunto that of Ezekiel hath some respect though but obscurely as the manner of the Prophets at that time was Now though God do sometimes visit the sins of Parents on their Children yet is this no warrant for us to do the same neither can there be the same reason because of that absolute Power and Dominion that he hath over our lives to take them away at his pleasure without any respect had unto our sins whereas men can have no such power but what our own crimes give them and therefore as the sin so the punishment should not be extended beyond our persons And therefore the very same Law of God doth expresly in another place forbid That either the Father should be put to death for the Child or the Child for the Father Deut. 24.16 which some of the pious Kings of Israel did religiously observe even in the case of Treason as Amasias did which Law is highly commended both by Josephus and Philo As Isocrates doth the like Law amongst the Aegyptians and Dionysius Halicarnassensis the same among the Romans Neither the sin nor punishment of the Father leaves any guilt at all upon the Children saith Calistratus out of Plato For it is just that every Fox should pay his own skin unto the fleaer and that every man should carve out his own fortunes and no man answer for his sin before God by an Attorney Would any City saith Cicero endure such a Law that should condemn the Son or Nephew if the Father only or the Grandfather did offend Hence it is that the Roman Grecian and Aegyptian Laws do forbid the putting to death of Women with Child as an act of injustice and cruelty XV. If not children much less kinsmen And if so then certainly the Laws of the * Dan. 7.22 Justin l. 10. Persians and Macedonians adjudging to death all the kindred and relations of Traitors that so they might the more dolorously perish as Curtius speaks are most cruel and unjust which Ammianus Marcellinus records as the severest of all Laws Philo also observes that it was usual with Tyrants to put to death together with the persons so condemned the five Families that were of nearest kin to them which execrable custom is not so much as heard of among Christians being a cruelty exceeding any humane Judgment XVI Yet may children be denyed somethings which otherwise they might have had But yet in case the Children of such Traitors may have or expect to enjoy any thing whereof the peculiar Right is not in them but in the King or People it may be taken from them by a certain Right of Dominion as it adds to the punishment of the offender Hence it was that as Plutarch observes The posterity of Traitors were held uncapable of honours as the Children of such as were proscribed by Sylla were among the Romans So by the Law of Arcadius it was provided as a thing tolerable against the Children of Traitors That they should not be admitted into any honour or office in the Commonwealth XVII Nor are Subjects properly punished for their Princes crimes Now what hath been here said of Children may as well be said of such people as are truly Subjects if the Question be put whether they may be justly punished for the sins of their Kings or of their Governours I mean not here in case the people shall give their consent thereunto or act any thing in relation to the fault of their Prince which is in it self punishable But we treat of that contract which ariseth from the nature of that body whereof the King is the Head and the Subjects the Members For as to those that give their consent and assistance to the sin of their Prince it is true what Philo observes of Pharaoh in Abrahams time That the whole Family felt the smart of Pharaohs sin because no man had indignation against so unjust a fact but all of them by commending it were as guilty almost as himself So Josephus discoursing of the judgment of Jeroboam The people saith â—e did likewise partake of the punishment of the Kings sin for they also were to be expelled that good land and to be scattered into foreign Nations because they were his companions in the act of his sin But in case the people yield not their consent yet may they partake of the punishment by reason as I said of the connection that there is between them and their Prince David numbred the people and his Subjects are consumed by the Pestilence David thought this to be hard dealing because he thought the people innocent But God saith the Text was angry with the people and therefore moved him against them to say go number the people 2 Sam. 24.1 And then takes occasion by this sin of Davids to punish the sins
whether by force or fraud justifiable page 437 438 Protectorship in the minority or disability of Kings to whom page 44 Protection takes not away Civil Liberty 49. it doth not always argue subjection 50. due to the oppressed but not to wilful Malefactors page 496 Provocation to sin wbence 379. causes of restâ—â—â—niâ—g ibid. Prudence â—onversant about things indifferent called the Tree of Knowledge of good and evil 79. a Vertue proper to Princes Justice to men as men page 418 419 430 Prudential Rules guiding us in the choice of things good page 430 Pupils not bound to pay Debts unless they gain by what they borrow page 147 Publick Good preferred before private page 56 Publick Remonstrances forbidding the importation of Goods before they can be made Prizes page 436 437 Publick profit preferred before honesty confuted Pref. x Publick safety consists in well commanding and well obeying page 57 Publick things distinguisht from things common page 89 Punishment of Kings what page 41 Punishment what 362. the Cure of wickedness ibid. proportionable to the Crime ibid. sometimes publick when the sin is secret ibid. how said to be due page 363 To Punish all sins equally unjust page 362 Punishment to what end ordained 363 365 all refer to the time to come 364. Not as sweet to the Punisher but profitable to the Punished ibid. God punisheth sometimes to shew his power and merely for revenge ibid. To Punish the incorrigible with death better than to suffer them to live page 366 To Punish any man hath a right naturally that is himself innocent page 367 By Punishment what benefits accrew page 368 Of Punishments exemplary ibid. All Punishment not remitted to the Penitent Objections answered first from Gods Mercy page 372 Punishments not all Capital 376. not necessary when the end may be attained without it ibid. may be remitted both before and after the penal Law be past page 376 377 Of Punishments some may be remitted some severely exacted some may be either page 376 From Punishment some Causes exempt Offenders page 377 Punishments should be proportioned to merit 378. do not always argue civil Jurisdiction 385. vary according to the capacity of the Offender to judge between good and evil page 380 381 Beasts properly not punishable page 401 Punishment by bare Counter-passion rejected page 381 In Punishing regard to be had to the quality of the person punished ibid. no acceptation of persons ibid. The Punishment of Cattle stolen out of the Field or out of the House ibid. Punishments ought to be milder than the Laws 382. exemplary upon such only as are incorrigible ibid. Of Punishments a man may partake by reception of Malefactors 395. and how otherwise page 393 Punishment of individuals is death of Cities Desolation 399. communicated between Bodies politick and its Members how far ibid. How a man may be involved in the Punishment that is not partaker of the Crime with some Cautions page 400 For what the major part decrees the minor dissenting are not Punishable page 399 None Punished properly for the sin of another page 401 Punishment for publick injuries may be exacted at any time during the Offenders life 400. may be remitted or mitigated for some preceeding Merits page 417 Punishment better remitted than exacted by War especially by injured Kings page 416 417 When Punishments are tacitely remitted page 570 In Punishments the measure whence collected page 379 In Punishments retrospection to be had to our former lives ibid. Punishment once due may at any time be exacted page 399 All Punishments if great have somewhat of Justice in them but somewhat also that is repugnant to Charity page 376 The Purpose and intention only sometimes punished page 383 Q. QUalifications natural transfer no right page 368 A Question put if in the whole it cannot be assented unto it must be discust in parts page 114 The Quarrel is begun by him that provokes it page 499 R. RAbirius perfidiously dealt with by Marius page 565 Ransome agreed binds though the Prisoner be of better quality than was supposed page 562 The Ransome of Prisoners vary page 523 Redemption of Captives much favoured amongst Christians 561. whether it may be lawfully forbidden page 562 Ransome whether chargeable upon the Heir ibid. A Rape committed in the Feild and in the City the difference page 75 Ravishment whether in War lawful 463. the most civilized Nations restrain it 464. against it no Law extant before Moses page 110 Reason adequate what it operates 408. the foundation of Law 6. natures best guide page 11 The Reason of the Law directs us to the meaning of it 192. none so readily obey as he that knows the reason of the Law ibid. The Reason of the Law not always the same with the meaning of the Law ibid. When the self same Reason justifies an extended signification of the words of a promise page 196 197 The Reception of Malefactors tolerated unless they are such as disturb the Peace page 398 399 550 551 The Reception of Exiles Fugitives and such as come to inhabit no breach of Peace page 550 551 Redemption of Captives much favoured ibid. The Redeemed how far bound to the Redeemer page 490 For the Redemption of Captives the consecrated Vessels sold page 561 Reformadoes what they may do by internal justice either in respect of themselves or their Prince 535. what Christian Charity requires of them ibid. Refuge Cities of what use page 397 Regal Power exercised by the Roman Dictators though not under the title of Kings page 41 Relief sent to a Town closely besieged to what it obligeth page 435 Religion mens chance not choice every Nation thinks his own best 389. in what sense it belongs unto the Law of Nations 387. it restrains both Prince and People 386. how necessary for humane society ibid. its foundation is to know God and his Providence 388 382. it depended among the Jews upon no other humane Authority than upon the King and Sanhedrim 59. in defence of our Religion and Liberty War lawful page 416 Religion freely left to the Conquered no prejudice to the Conquerour page 527 Religious places obnoxious to the licence of War 465. they ought to be spared page 515 To Remit punishments sometimes better than to exact them page 376 Renegadoes punishable when page 396 Rents not to be abated for a barren Year page 162 Renunciation of a Kingdom whether it prejudiceth the Children born or unborn page 124 125 131 Reparation for damages done primarily and secondarily 201. he that encourageth or commendeth a Malefactor is bound ibid. To Reparation how far an Homicide is bound 202. so for Mutilation loss of liberty Adultery Ravishment Robbery defrauding of the Kings custome ibid. The Principals and Accessaries how far bound to Repair damages page 201 To Reparation they are not bound that omit what in charity is due ibid. Reparation for damages done to Friends by Letters of Marque granted against Enemies whether due from the Grantors page 203
was well observed by Andronicus Rhodius And although it cannot exempt them altogether from punishment yet without doubt it renders the fault the more tolerable So the apprehension of some imminent danger quickly begets a fear and then we rashly adventure upon a sin to avoid that danger In like manner some sudden and unexpected injury sets our hot blood on boiling and then immediately before reason can interpose we attempt a revenge These are the sudden irruptions of passion and not the deliberate acts of the Will which certainly are in themselves more excusable than those which arising meerly out of the desire of pleasure assault us not so violently And therefore may either be deferred or admit of some other matter wherein to delight without injury to any De Providentia In Epist ad Gal. So St Chrysostome Lust saith he seeks coition only but not with this or that particular person And so †Nic. l. 7. c. 10. Aristotle Anger and cruelty are much more natural than covetousness or an inordinate desire of things unnecessary For this is generally to be observed That the more the judgment is hindered in its free choice or in the act of discerning between Good and Evil and the more natural the causes are exciting to sin the less of evil the sin hath and consequently the less it should have of punishment Difficilium facilis est venia The greater difficulty there is in the thing commanded the easier is the pardon if not performed Quantò potestas vitandi fuit tanto contumaciae crimine oneratur saith Tertullian The more power and the greater helps we have to avoid a sin the more contumacy we bewray in the committing it Aristotle likewise in the place before cited accounts that man less temperate who being either not at all or very weakly provoked with carnal desires either seeks after enormous pleasures or flies from some small inconveniences than he that is urged thereunto by some vehement passion For what would the same person do if he felt those vehement perturbations of mind which are incident to youth or that grief and vexation that poverty brings with it Pertinent whereunto is that of Antiphanes Qui cum sit opulens nequiter quicquam facit Hunc si esset pauper quid non facturum putas He that being opulent unjust will be What will he not if pincht by poverty And what we every where read in Comedians concerning the doting love of old men From these causes we ought to guess at the merits of mens sins and to fit their punishments accordingly XXXII Counter-passion rejected The Pythagoreans hold that justice requires 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. a sufferance in the like kind by way of punishment which is true but not so to be understood as if he that hurts another deliberately and without any just cause given should suffer just so much again and no more For the Law of Moses it self which is a perfect pattern for all other Laws rejects this exposition for it requires That he that steals any thing from another should restore four and fivefold and the Attick Law did require That a Thief besides a double restitution whereunto that of St John Rev. 18.6 refers should remain in bonds for certain days as Demosthenes testifies And when the Minyans had without any right Cont. Timocr extorted tribute from the Thebans Hercules compelled them to restore it unto them double as Apollodorus records it Aristides also of the Grecian Laws testifies Lib. 2. Leuctr 2. That the injured person is permitted to recover more than the damage sustained by way of revenge whereof St. Ambrose gives this reason Qâ—o furem à detrahendo aut poena deterreant aut mulcta revocent De offic 3. c. 3. that so they may affright the Thief from his pilfering by the punishment or discourage him by the mulct Seneca speaking of judgments to be inflicted after this life saith Scelera taxantur modo Majore nostra Our Crimes with greater plagues are there Punisht than those we suffer here Strabo observed a Law among the Indians Lib. 15. That if one man had maimed or dismembred another besides the common punishment of retaliation he was to lose his hand And in that book which is entitled Aristotle's Morals we read That it is just Lib. 1. c. 34. that he that willingly puts out another mans eye should suffer not only in the like kind but somewhat more For as Philo in his Special Laws observes It is not equal that the nocent and the innocent should suffer but alike And from hence it is that the very attempt to commit some sins though not consummated and consequently have less of evil in them than those that are perpetrated yet are equally punished according to what they intended as we may read Deut. 19.19 in the case of a false testimony so Deut 22.19 in the case of a Husband accusing his Wife of whoredom to defraud her of her dowry the like we may read Exod. 22.9 As also among the Roman Laws it was provided That he that carried a weapon about him with an intent to kill a man was to have been punished as though he had done it And if it be objected That if the bare attempt be punishable with death surely the execution should be more severely punished I answer that because nothing can be more grievous than death and because a man can dye but once therefore we must necessarily aquiesce in this punishment because we can go no further unless we do sometimes add thereunto some kind of torments to make death it self the more terrible XXXIII In punishments regard is to be had to the person punished Punishments are not to be considered barely but with respect had to the quality of him that suffers them The same mulct or fine that is grievous to a poor man is no punishment at all to the rich and the Stocks or Pillory which by the viler sort of people are slighted are worse than death it self to the nobler The Roman Laws did often make use of this difference of persons and punishments and Bodine upon this consideration did frame a kind of harmoniacal proportion whereas notwithstanding indeed here is but a simple equality between the merit and the punishment such as is in numbers as also in all contracts between the things sold and the money although the same Merchandises are worth in some places more and in some less as also is money according to its either plenty or scarcity But we must acknowledge that oft-times among the Romans this was not done without too great a respect had to the persons and their qualities nothing appertaining to the fact which acception of persons Moses his Law did exceedingly abhor And this is as we have said the intrinsick valuation of a punishment XXXIV Charity mitigates Punishment But that which restrains us in punishing within those bounds which the Laws permit is the love of him who is punished
stripes and punishments as Gregory Bishop of Rome wrote unto the Bishop of Constantinople And we may read of many French Bishops who were by the judgement of the Church condemned for calling in the Civil Powers against the Priscillianists as Sulpitius Severus relates it and of a whole Council in the East that was condemned because they consented to the burning of Bogomilus It was therefore wisely said of Plato Errantis poena est doceri If there be any punishment due to errour it is to be instructed Sen Trag. Quis nomen unquam sceleris errori dedit Who ever thought it criminous to erre It is very true what Seneca saith De Ira. lib. 14. No wise man ever hated those that erred for if so he must necessarily sometimes hate himself He that is ignorant ought not to be ill treated nor accused but it is fit he should be instructed in that whereof he is ignorant Chrysost And Ammianus Marcellinus highly commends the Emperour Valentinian That he never persecuted any man for his Religion never commanded this or that to be adored nor inclined the hearts of his Subjects to enbrace his own manner of worship in case they dissented from it LI. But they that are openly impious and profane against such as they believe to be Gods may be punished Errours in Opinion concerning the nature or worship of God are not sufficient ground for a Just War but open impiety irreverence and profaneness towards any that is but acknowledged as God are deservedly in all Nations to be punished This amongst others is given as one Cause of the Peloponesian War between the Athenians and Lacedemonians and of that War which Philip of Macedon made against the Phocians whose sacriledge was so execrable that as Justine saith Lib. 8. Orbis viribus expiari debuit The whole world ought to have contributed to the expiation of it And it is St Hierom's observation upon the sixth of Daniel That whilst the vessels remained in the Idol Temple at Babylon the Lord was not angry Diod. lib. 16. for the errour was in the understanding and not in the will and affections though they erred in their Opinion concerning God yet were those vessels imployed to that use whereunto they were primarily consecrated but no sooner were they made use of in a common and profane way but the Lord breaks out into an open revenge St Augustine ascribes the prosperity of the Roman Empire to their care of Religion though a false one And Lactantius seems to justifie them in part because they had a Zeal for the Worship of God though not according to knowledge though they could not exactly perform their duty yet they served him sincerely according to the light they had of him And as we said before by what God soever we forswear the sin is punished by the True God because we swear by it as God De benef 7. c. 7. saith Seneca And it is our opinion of him that we swear by that obligeth the True God to revenge it De benef lib. 3. c. 6. And in this sense we understand that also of Seneca The punishments of such as profane Religion may vary but in all places they are punishable And that also of Plato De legib 10. who would have all such as scoff at Religion punished with death In like manner they that falsely assume unto themselves the name of Prophets are deservedly to be punished as Agathias testifies Lib. 5. CHAP. XXI Of the Communication of Punishments I. How punishments may pass to those that partake of the sin II. That Commonalties and their Governours are punishable for the Subjects faults if they know of them and do not hinder them when they both ought and may do it III. Likewise by receiving those who have been criminous elsewhere IV. Vnless they either punish them or deliver them up to be punished illustrated by examples V. The Rights of Suppliants belong to the unfortunate and not to the guilty with its exceptions VI. Suppliants are to be defended till their Cause be known and by what Law this knowledge is to be gained VII How Subjects may partake of the faults of their Rulers or the Members of the whole Body and how their punishments differ VIII How long the Right of punishing may continue against a People IX Whether a punishment may be inflicted upon such as partake not of the faults X. A distinction between that punishment that is inflicted directly and that which comes by consequence XI That which comes by occasion of a fault distinguish'd from that which is inflicted for the fault XII Properly no man can be justly punished for the fault of another XIII No not the Children for the sins of their Parents XIV Objections answered concerning Gods Dealings with the Children of guilty Parents XV. Much less should their punishments extend to their other Relations XVI Yet some things may be denied unto these which otherwise they might have with examples XVII Neither can Subjects be properly punished for the defaults of their Kings XVIII Nor the dissenting part for the crimes of the major part XIX The Heir is not liable to the punishment of his Ancestor as it is a punishment and why XX. Yet he shall if what was first inflicted as a punishment do pass under another kind of debt I. How by partaking of the sin of another man we may be liable to his punishment SO often as mention is made concerning the Communication of Punishments either it concerns those that are Partakers of the sin or some others They that partake of the sin are not so properly punished for other mens sins as their own And who they are that partake of other mens sins may easily be understood by what hath been already said above concerning the damage that is occasioned by an injury done For by the same ways almost whereby a man is made guilty of that damage by the same may a man be made guilty of another mans sin and yet not always where there is an obligation to satisfie for the damage there is the same to satisfie for the offence but there only where there is the concurrence of some notable malignity whereas oft-times any offence may suffice to oblige a man to satisfie for the damage given He therefore that commands a wicked act to be done as David did Joab concerning Vriah he that gives his consent being required as Saul is said to stone St Steven because he gave his consent unto it for by the Law Facientem consentientem par poena constringit The same punishment is due to him that commits a crime and to him that consents to the committing of it They that aid and assist in the act doing they that receive or conceal the matter or any other way participate of the crime so St Hierome Not only the Thief himself Sup. Parabolas but he that knowing the thing to be stoln and where it is conceals it or
us in Political Consultations 419 Of Rule or Dominion the desire with the consent of the People to be ruled no cause of War page 407 S. SAbacon converted capital punishments into servile works page 372 Sabbath the symbol of the Creation 387. its Law more indispensable than any other ibid. its breach why punished by Death ibid. driven away by the danger of life 59. made for the refreshment of Servants page 521 Sacred things in what sense publick 465. whether subject to the licence of War ibid. 466. rendered by their City cease to be sacred ibid. made prophane by the consent of the People ibid. in war to be spared page 515 Sacriledge in War not punishable page 465 It is Sacriledge to violate Temples and Altars page 515 Sacreligious persons to be cast out unburyed page 219 Safety of the Conquerour how provided for page 525 526 Safety of the whole consists in the preservation of its parts and so on the contrary page 57 Safe-conduct to such a place how understood 568. how far it extends to persons Goods or Attendants 544. what it implies page 560 The Saguntines case discust page 193 Sampsons Death page 219 Sanedrin called Gods page 47 Satisfaction to be demanded before War be denounced 367. to be tendred by him that hath offended 77. if refused justifies a War ibid. Saul whether he dyed impenitent page 219 Scarcity of money and provision shortens a War page 511 Schoolmen their singular modesty Pref. xix their opinion concerning Lying and Equivocation 444. the generality follow St. Augustine ibid. Scriptures what they barely recite and reprove not we ought not to condemn 449. to understand two main helps page 25 Sea taken either universally or in its parts whether occupyable 80. it cannot be possest because not bounded ibid. may be held in propriety and how 89. near the shore occupyable by the Law of Nature 90. filled up and let in to the Land by the Romans 90 91. serves for three uses Water Fishing and Navigation page 80 The Seas Empire over it parts how lost page 92 93 Sects all hold somewhat that 's true none infallible Pref. xvi Self-murder not valour but madness page 218 219 The Sentence doth not properly give a Right 448 449. sometimes divided sometimes conjoyned page 113 Sepultus and Humatus the difference page 214 Sepulchres subject to the Conquerour by the Law of Nature page 467 Sergius Paulus a Magistrate after his conversion page 20 Servus quasi servatus page 482 Servants may do what is unjust and yet be just 429. not punishable for what they do being commanded ibid. not Judges of their Masters commands but Executioners ibid. not examined by the Romans without torture 28. prohibited by the Canon to forsake their Masters how understood 116 117 483. whether they may resist their Master ibid. or take reward for their labour ibid. if good to be used as Brethren page 520 Servitude by way of punishment 117. its degrees ibid. not repugnant to Nature 115 116. perfect and imperfect page 115 The Severity of the Roman Laws towards the Conquered page 503 See Slaves Severity then seasonable when delinquents are few page 37 Severity extreme too near a Neighbour to Cruelty 456. of Lords justifies the Servants flight page 116 Sex preferred in Succession to Kingdoms before Age page 128 Signs testifying the consent of the will page 98 Significations though improper sometimes admitted page 193 Ships when said to be taken 470. of War with the Tackle and Ordnance taken the Kings 480. if they hurt any whether the Master stands obliged 204. where are many Innocents whether to be battered with Ordnance page 434 Shores how common and how held in propriety 90. forsaken by the River whose 138. are the Occupants Sheds for shelter may be built thereon page 85. Silence when taken for consent 98 99. if not free works nothing ibid. Simulation in War laudable to deceive an Enemy page 137 138 139 Simplicity of our first Parents wherein page 79 Single Combats from whence 368. in what cases lawful page 76 Sins re-acted aggravates the punishment 379 the most customary the more severe 382. differ with mens age and complexion 380. of humane infirmity not punishable by humane Laws 374. some unavoidable to some complexions 375. visited upon Parents and their Children what 402. against the second Table their degrees page 379 To Sin he that urgeth another sins himself page 445 446 Sisters two to marry Anciently lawful page 111 A Slave what 115 116. not to resist his Lord 483. too severely used may fly 116 117. taken in an unjust War and making an escape whether he may carry any thing with him 483. what ere is done unto him is unpunishable ibid. hath nothing of his own page 483 484 Of Slaves a multitude cannot constitute a City 486. some permitted to make their Will 523. in cases of Famine or Cruelty they may appeal to the Magistrate ibid. A Slave may merit from his Lord and raise himself a stock 522. not to be killed nor too rigorously punished nor oppressed with over hard labour 520 521 522. after very hard service rewarded with freedom and not to go away empty handed 523. to be used as an hireling 521. the Hebrews and Romans very merciful to them page 520 Where Slavery is not in use exchange of Prisoners and ransome succeeds page 523 Society the foundation of Law Pref. iv v. and reason mans best weapons ibid. A Society and a City how they differ page 50 Civil Society an human institution page 59 Society not to be kept by the Hebrews with whom page 184 Societies of ensurance against dangers page 164 Societies where work is set against Money ibid. In Societies the major part obligeth the whole 113. what Right they have over their members page 114 Societies with prophane what and how far dangerous and how they may be avoided page 186 Where divers Societies have unequal shares how the votes are to be reckoned page 114 Societies hold not where any one part have no hopes of gain page 163 164 Societies Naval page 164 Social War its division page 183 See Associates Sojourners in times of Peace may in War be made Captives page 472 To Solicite Subjects to betray their own Prince unlawful page 445 Soil lying waste may be given to Strangers page 85 Sold twice whose they are page 161 Solemn War cannot be but between Soveraign Princes 252. it hath its peculiar Rights page 456 480 A Son when he may accuse his own Father of Treason page 209 The Son born before the Father was King preferred before him that was born after page 131 Sons Adopted whether capable of Succession page 127 128 Sovereignty not lost by a promise of any thing that is not of natural or Divine Right 45. nor by misgovernment lost page 73 Souldiers to chuse their General dangerous 143 144. straggling from the Army and Plundering may be killed 374. of Fortune fight for Plunder and Pay 426. lives most miserable
may have 482 483. to make is due by the Law of Nature 120. they may be made by Strangers by the Right of Nature ibid. By Testaments Kingdoms Patrimonial may be bequeathed but others not but by the Peoples consent page 43 44 To hinder a man from making his Testament obligeth to satisfaction page 201 Thebaean Legion page 62 93 428 Theseus the Scourge of Wickedness page 384 Theft prohibited by the Law of Nature 5. in extreme necessity lawful with some Conditions 81 82. nocturnal and diurnal the different punishments and why 74 75. against it severe Laws sometimes mitigated through Charity page 75 76 It is Theft to require more or give less in measure weight or number than was contracted for page 160 Theft not punishable by death by the Mosaical Law 76. nor by the Civil Law is approved though tolerated ibid. A Thief nocturnal may be killed in what Case 32 75. to kill whether the Civil Laws do only tolerate or justifie page 76 Thieves live not without Laws Pref. ix and Pirates have no Right of Embassages page 206 No Theft to spend somewhat of anothers to procure him a greater profit page 442 Things thus standing how and when understood 151. stolen lose not their property 97. that have no Owner the Germans give their Prince 135. given as lost cease to be ours 98. taken from an Enemy are theirs that take them though first taken from friends 470 471. taken in a just War how far ours by the Law of Nature 468. moving and moveable taken by private acts in a just War are lawful prize 472 473. useless in War may be spared 514. sacred and religious received by Postliminy 492. not the Enemies not gained by War 470 c. to defend justifies interfection naturally 74. how far lawful by the Gospel 75. twice sold whose Right is best page 161 Things to restore taken for any satisfaction as things to take away understood for any injury 456. lose not their Dominion till within the Enemies Garrisons 492. of Enemies to spoil how far lawful page 411 Time out of mind what 99. long out of possession of what force to prove dereliction page 98 Time and place of Battel alway proclaimed page 445 Titles none to be set on foot after four ages 99 100. to Empires should be fixt 99. originally naught cannot by any Postact be made good how understood page 100 101 Tolls for importation of Goods in what cases lawful 84 85. for passing Rivers and Bridges ibid. by Sea may be lawfully taken page 93 To Traffick a Right common to all 86 it unites Countries remote ibid. to hinder it with such Nations unjust page 84 In Traffick by Companies how the gain is divided page 164 Traytors have no Right of Embassies 206. against such and publick Enemies every man is a Souldier 65 374. to kill not punishable by the Law of Nature page 462 463 Of Treason against our Country the danger not past a Son may accuse his own Father page 209 To Treason the next degree is to harbour Traitors page 396 Travellers may for a while reside in any place page 85 Treasures found whose it is 136. the publick not toucht by Mark Antony without the consent of the Senate page 59 Treachery against Robbers and Pyrates when and why not punishable 463. in a solemn War lawful unless by Poyson or private Assasinatinn page 462 Tree of Life what it signified and of knowledge of good and evil page 79 Tribunals wanting the Law of Nature takes place page 122 Tribunes how made inviolable page 539 Tributes and Taxes due to Kings 3. to maintain Souldiers page 20 Tributary Associates page 57 Trifles not worth contending for page 21 22 23 Truce what a Time of Peace or War 557. when it begins to oblige and when it ends 558 559 broken on one side or ending needs no indiction of War 558 560. continuing no place to be surprized nor received that would revolt 559. what may â—awfully be done within that time 559 560. it may be made by inferiour Commanders 565. being ended whether they that were forceably detained during it have a Right to return page 559 Truths some easily assented unto others not but by three or four consequences page 385 Truth the same spoken or sworn page 175 Truth only to be spoken in Markets page 441 Tyrants worse than Hangmen 426. their scourge Hercules 384 with them Faith to be kept if given as to such page 537 538 V. VAlentinian's answer to his Army page 40 Valor cannot prevail against Nature nor dwell with Famine page 119 The Valerian Law in Rome distinguisht from Solons in Athens page 65 The Value of things from whence page 161 The Vanquished to be treated gently 527. which may be done either 1. by mixing them with the Conquerours 525. 2. by taking nothing from them but what disturbs Peace 524. 3. by leaving them their own Empire 525. excepting some strong Garrisons 526. 4. permitting their own Laws Magistrates Religion with caution for the true Religion 527. 5. by imposing some tribute on them 526. or some part of their Government page 525 Variety of manners occasioned by the various mixture of the Elements page 375 Venome to use unlawful in War page 461 462. See Poyson Veracity a Guide to all Vertues page 444 Vertues some require moderation of affection others not Pref. xvii what the Law enjoins the Gospel requires in a larger measure page 10 Vices what not to be punished 374. of things contracted for to be made known and why page 159 Victor who 552. his duty towards them that yield page 554 Victory disdained unless got by Manhood 445 sometimes the gift of fortune and not always the reward of Valour 504. being assured to waste things is madness 513. gained by fraud more honourable than that gained by force page 437 438 Virgins Milesian page 218 Virgins not to chuse themselves Husbands page 107 Visible what is not hath no certain Right page 100 That Universals have a power to oblige singulars 113. their Debts how far they bind their Members page 545 Unborn the Right defended by Law lost by prescription page 187 Uninhabited places are the First Occupants page 85 Unjust that is which is repugnant to humane Society page 2 Unjustly what is denyed may justly by War be taken page 86 Unjust if the War be what ever is done in it is internally unjust page 495 Unjust Wars are no better than great Robberies page 70 To do Unjust things and to do Unjustly how distinguisht page 428 429 Unlawful things none to be urged unto page 446 Untruth whereby a By-stander is deceived no Lye page 441 Unwillingly what is done deserves pardon page 500 Votes in a society where divers claim unequal shares how to be reckoned page 114 Usurpation what 97. of no force between Kings of divers Nations ibid. Use common its Authority in expounding Laws page 25 The Use of things Natural page 78 79 The Use of a thing consisting in abuse
our Reason approves to be honest or at least are so Comparatively to those that are opposed unto them though they are not enjoyned us yet are said to be due by this Natural Law Moreover we must observe that this Natural Law doth not determine of such things only as have no dependence upon Mans will but of many things also which the Common consent of mankind hath already moulded as it were into a Law Thus was Dominion as now in use by Common consent introduced as by a Law But being introduced this very Law of Nature doth instruct us that to take away from any man that which is his own without his consent is Impious And from hence it is that Paulus the Lawyer concludes Theft to be prohibited by the Law of Nature and Vâ—pian that it is dishonest And Julian tells us That after that which concerns the Worship of God there is a Second Law in its own Nature holy Julian and of Divine Extraction that enjoyns us at all times and in all places to abstain from Theft and Rapine and that forbids us either in word in deed or in our most retired thoughts to mix or confound each others Properties .. De off l. 3. For as Cicero out of Chrysippus well observes For any man to gain to himself what is necessary for his own lively hood is not unjust but to take it away by force from any other is not Right Euripides also condemns this as hateful to God himself Námque odit ipse vim Deus Nec divites Nos esse rapto sed probe partis cupit Spernenda si non pure veniat Copia est Communis Aether hominibus Tellus quoque In qua Ampliare cuique sic fas est domum Vt ab alienis rebus ac vi temperet For God himself hates force nor would that we Grow rich by fraud but Goods got honestly Riches unjustly gain'd we should disdain The Earth the Air and eke the Ocean main Stand free to all each may his House maintain By these so that from Rapine he abstain The Law of Nature is so Immutable that God himself cannot alter it God himself cannot alter the Law of Nature for though the power of God be Immense yet may somethings be said whereunto this great power doth not extend it self because what are so said are said only but have no sense which can express the thing but they must contradict themselves As therefore that twice two should not be four God himself cannot effect so neither can he that what is intrinsecally evil should not be evil For as the being of things after they are and as they are depends not upon any other so do the proprieties that necessarily follow that being But such is the Malignity of some acts compared with Nature as it is guided by Right reason And therefore doth God himself suffer himself to be judged of according to this Rule as appears by that of Abraham to God Gen. 18.25 Shall not the Judge of all the world do Right Such a contradiction it is to say that he that is the judge of the whole Earth should not do Right that though it may be spoken yet do the words though spoken bear no sense but rather imply a manifest contradiction The like we may find in other places of the holy Scriptures Es 5.3 Ez. 18.25 â—er 2.19 Mich. 6.2 Rom. 2.6 3 6. it sometimes notwithwstanding so falls out that in these acts concerning which the Law of Nature hath determined something there is some shew or appearance of change which may easily deceive the unwary whereas indeed the change is not in that Law which as I have already said is immutable but in the things about which that Law is conversant As for example If he to whom I owe a just Debt shall freely discharge me of it I am not bound to pay it not that the Law of Nature doth cease to command me to pay what I owe but because that which I did owe ceaseth to be my Debt being so discharged For as Arrianus in Epictetus rightly argues To make a just Debt it is not enough that the money was lent but it is required that the Obligation remains uncancelled So when God commands any man to be put to death or his Goods to be taken from him Murther and Theft do not thereby become lawful for these very words do imply sin and no sin can be lawful But those acts will not amount to Murther or Theft which are done by the express command of him who is the Soveraign Lord both of our Lives and Fortunes Lastly there are somethings justifiable by the Law of Nature not simply but so long as the condition of affairs stand thus So till dominion was introduced the use of things was Naturally common so before Laws and Courts of Judicature were established by the Law of Nature it was Lawful to recover by force what was our own but not since XI Natural instinct That distinction which we may read of in the books of the Roman Laws is namely that this immutable Law is either that which is common to men with beasts which they call the Law of Nature in the stricter sense and that which is peculiar unto men only which they sometimes call the Law of Nations is of very little use For nothing is properly capable of a Law but that Nature that is capable of making use of General precepts which was well observed by Hesiod when he said To men hath God given Laws to be rul'd by But Fish and Beasts and Fowls that soar on high Having no Law do on each other prey But in good Laws doth all our safety lay We say not of Horses and Lyons Off. lib. 1. Vita Cat. M. saith Cicero that they are just neither as Plutarch observes do we by Nature make use of Law or justice against any other Creatures but man Among all other Creatures not endued with reason saith Lactantius Nature is permitted to be her own Carver Lib. 5. Nocent aliis ut sibi prosint They destroy others to preserve themselves And in so doing they are ignorant that they do amiss But man who hath a faculty to discern good from evil wisely abstains from hurting others though thereby he sometimes incommodate himself Lib. 6. Polybius having declared upon what grounds men at first entred into Society adds That when the rest saw some men abusing their own Parents and others behaving themselves injuriously towards their Benefactors they could not chuse but grieve at it whereof he gives this Reason For mankind saith he being endued with understanding and reason above all other Creatures it is not credible that they should behold acts so abhorrent from Nature without expressing some sign of discontent So likewise Chrysostom This we learn from Nature herself â—e statuis 13. that when we see one man abusing another we cannot but sympathize with the injured Person and swell with indignation against the
had intended to have introduced a new and never before heard of form of Government without doubt he would have declared it in such distinct terms and in such a plain dress of words as should have been liable to no misprision as Let no man hereafter adjudge Malefactors to death Let no man take Arms to defend himself or the like which we no where read that ever he did but whatsoever words are wrested from the Scriptures to this purpose are either very general or very obscure But equity it self and common reason will instruct us thus much That in publishing new Laws we are to restrain words too general and to explain terms too ambiguous and rather to decline a little from the common acception of the words than to admit of such a sense of them as may introduce so many mischiefs and inconveniences with it The Fifth Argument is this That it cannot be concluded by any probable argument Arg. 5 that the Judicial Law of Moses was ever abolished till their City Jerusalem was burnt and with it not the form only but the very hopes of a Commonwealth did utterly vanish For neither doth Moses prefix any term or period to this Law nor doth Christ or his Apostles any where declare the surceasing of it unless as it seems to be comprehended in the destruction of the Commonwealth yea rather on the contrary St. Paul saith That the High Priest was constituted that he might judge according to the Law of Moses Acts 24.3 And Christ in the Preface to his pecepts Mat. 5. saith Mat. 5.17 That he came to fulfil the Law and not to destroy it which words if we referr to the Ceremonial Law are not difficult to be understood for when the Picture is finished what need we the foul draught The Ceremonial Law was fulfilled in him it consisting in Types and shadows whereof the substance was Christ but how could Christ be said to fulfil the Judicial Law if as some hold he took it away And if the Jews were obliged by the Judicial Law till the dissolution of their Commonwealth it will follow That the Jews though Christianized in case they had been called to be Magistrates could neither have avoided it nor have judged otherwise than as Moses had prescribed I truly having throughly weighed all that can be said can find no ground at all why any pious man should expound those words of Christ in any other sense This I acknowledge that many things were tolerated among the Jews before the coming of Christ whether as to outward impunity or in respect of inward purity also I shall not now determine which Christ would not permit in his Disciples as for a man to put away his Wife for every offence and for a man injured to require revenge by way of Retaliation but yet between Christs precepts and Moses his permission there may be some difference but no repugnancy for under the Law if a man did retain his Wife or if he did remit revenge privately due he could not be said to break the Law but to do that which the Law did chiefly require of him But it is far otherwise in a Judge whom the Law doth not permit but enjoyn to punish a Murtherer with death which if he do not he himself shall be found guilty before God Now if Christ had commanded such a Judge that he should not adjudge any Malefactor to death this being contrary to Law he had dissolved and not fulfilled it The Sixth Argument is drawn from Cornelius the Centurion who received the Holy Ghost Arg. 6 an undeniable sign of Justification from Christ himself From the example of Cornelius and was baptized into the name of Christ by St. Peter yet do we no where read that he laid down his Commission or that he was admonished by St. Peter so to do But some may say That being instructed by St. Peter in the Christian Religion it may be presumed that at the same time he did resolve to desert his calling whereunto I answer That if it could be any where found amongst the precepts of Christ or infallibly proved that Christ did forbid to make War then what they say were to the purpose But seeing no such precept is extant certainly it is much more probable that in this case of Cornelius somewhat would have been said against it if it had been held unlawful that so in after ages men of that profession might not have pleaded ignorance of the danger incident to that function Neither is it likely that in case the Centurion had then renounced his Military profession St. Luke would have omitted the recording of it as usually he did in like cases as will appear by several places but especially Acts 19.19 Arg. 7 The Seventh Argument we deduce from Sergius Paulus of whom after his conversion there is not the least-mention made of his renouncing his Propraetorship And of Sergius Paulus or of any admonition given him by St. Paul to do it that which is not recorded being most expedient to have been so may be presumed not to have been done at all Arg. 8 The Eighth Argument is drawn from the practice of St. Paul who understanding that the Jews had laid wait to kill him And of St. Paâ—â— acquainted the chief Captain therewith who sent him a strong guard of Souldiers to secure his person which St. Paul did not refuse nor did he admonish either the chief Captain or the Souldiers that it was not acceptable to God to repel force with force which he had been apt enough to have done had he believed it to have been unlawful Arg. 9 The Ninth Argument is taken from St. Pauls precept for paying tribute for conscience sake From Tribute which was to have been paid Rom. 13.6 for of every thing that is honest and just its proper end must needs be so now the properend of paying of Tribute is to maintain the power of the Sword whereby the innocent are protected and the nocent corrected or cut off But that we render unto Princes their Tribute due is a precept of the new Law and bindeth the Conscience as St. Paul testifies to the Romans therefore it follows that by the precepts of Christianity the power of the Sword in the hands of the chief Magistrate is honest and just very pertinent to this purpose Hist l. 4. lib. 22. contra Faustum c. 74. is that of Tacitus There can be no peace amongst Nations without Arms no Arms without pay nor pay without taxes So St. Aug. For this cause pay we Tribute that Souldiers may have their wages to buy necessaries Arg. 10 The Tenth Argument is taken from St. Pauls speech Acts 25. Acts 25. If I have wronged any man or if I have done any thing worthy of death I refuse not to die So Act. 28.18 Act. 28.18 They found no cause of death in me Act. 28.18 saith St. Paul Whereupon Justine Martyr thus glosseth If there be any
amongst us that live not conformably to those precepts being only in name Christians that such should be punished and that by you is our desire as well as yours From whence we may collect that it was St. Pauls opinion even after the Gospel was published that there were some crimes which in common equity deserved death which very thing is granted by St. Peter also 1 Pet. 2.19 20. But if it had been Gods will that no Capital punishment should have been executed after Christs coming St. Paul might have purged himself but he thought it not convenient to instil such principles into the minds of his hearers as though it had not been as lawful then as formerly to punish Criminals with death wherefore he waveth this Plea and submits to the ancient Law If I have done any thing worthy of death I refuse not to die Now having thus proved that after the Christian Law was given it was lawful to punish obstinate Malefactors with death I take it to be sufficiently proved that it is Lawful for Princes to make War namely against such a multitude of offenders as shall by force of Arms infest a Nation who unless they be by force subdued will never acknowledge their own guilt For though the power of these offenders and their obstinate resolution may be a prudent consideration to perswade Princes sometimes not to execute it yet certainly it diminisheth nothing of their right so to punish Arg. 11 The last Argument may be this that the Christian Law did abrogate that Law of Moses only that did separate the Gentiles from the Jews Eph. 2.14 But those things which have the reputation of being honest either by the Law of Nature or by the unanimous consent of all Civilized Nations the Christian Law is so far from taking away that it comprehends them under that general precept of all honesty and vertue Phil. 4.8 1 Cor. 11.14 And as to the Capital punishments of Malefactors and the repelling of injuries by force these may be ranked among things laudable and may well be referred unto those two excellent vertues Justice and beneficence But here on the by we are not to omit the error of some who wholly attribute the lawfulness of the Jewish Wars against the seven Nations to the grant that God made unto them long before of the Land of Canaan whereas this indeed may be one but not the only cause For as well before as after the possession of that Land many pious and just men did make War by the guidance of mere natural reason upon several other occasions As King David did for the affronts offered unto his Ambassadors neither are those things which every man enjoys by the right of humane Laws less his own than that which is given him by God himself nor is that right either lessened or taken away by the Christian Law VIII The Arguments for the adverse opinion answered Esay 2.4 Orat. Christian esse Deum Euseb de praep lib. 1. c. 10. Now by poising these arguments with those brought on the adverse part the judicious may easily find whether of them are weightiest And in the first place they urge that of Esay And it shall come to pass that the people shall break their Swords into Plough-shares and their Spears into pruning hooks Nation shall not lift up Sword against Nation neither shall they learn War any more Which words of Esay St. Chrysostome applies unto that universal peace that the world enjoyed under the Roman Empire Neither was it foretold only saith he that this new Religion should be firm stable and unshaken but that therewith there should come peace to the whole earth But this Prophecy of Esay as I take it is to be understood either under some condition as many others are as that such should be the state of affairs in case all Nations should submit to the yoke of Christ and live according to his Law whereunto there shall nothing be defective on Gods part for most certain it is that if all were Christians or all that call themselves so would live after the rules of Christ there would be no occasion for Capital punishments and consequently no use at all of the Sword So Justin writes of the Christians in his time Non pug namus in hostes We saith he fight not against enemies and thus Philo testifies of the Esseni There is none among them that make either Javelins Arrows Swords Helmets or any other instruments of War So Chrysostome Si esset inter homines qualis oportet dilectio nullas fore poenas capitales If there were that perfect love among men that there should be there would be no need at all of Capital punishments Then also as Arnobius speaks would Iron and Steel be converted into more innocent and profitable instruments than for men therewith to kill and destroy each other Or this place of Esay is to be understood simply and purely as the words import and then it is apparent that this prophecy is not as yet accomplished but the fulfilling thereof as that of the general conversion of the Jews is yet to be hoped for but take it as we please in either sense nothing can be from thence concluded against the lawfulness of War so long as they that heartily endeavour to live in peace are not suffered to enjoy it Or as the Psalmist hath it whilst some are endeavouring after peace others are preparing themselves for battel Mat. 5. expounded Many arguments are usually drawn from the fifth of St. Matthew For the resolving whereof it is convenient that we should remember what a little before was said that had our great Law giver intended to have abolished all Capital punishments and this Right of making War he would certainly have done it in most plain and express terms the matter being so weighty and so new and the rather because none of the Jews could conceive or imagin but they were obliged to Moses his judicial Laws so long as their Commonwealth should stand This being thus premised let us orderly examine what plain and concluding power these places of Scripture have to evince the thing they are brought for Answered The Second place they urge is this Ye have heard it said an eye for an eye and a tooth for a tooth but I say unto you do not resist him that doth thee an injury but if any man strike thee on the one cheek turn to him the other also From hence some do infer That it is unlawful either to repel or to avenge an injury whether publickly or privately But this cannot be enforced from the words of Christ who doth not there address his discourse to the Magistrate but to the person injured neither doth he there speak of every injury but of such slight ones as a box on the eare and the like the precept following seems to restrain the words preceeding as if they were too general If any man will sue thee at the Law Lib. de
servants that had rather be beaten with stripes than to take a box on the Ear. So in another place A reproach saith he is much less than an injury which we rather complain of than revenge there being no punishment assigned unto it by the Law So he in Pacuvius Patior facile injuriam si absit contumelia An injury I can easily digest provided that it be without contumely To the same purpose also is that of Demosthenes The Tongue wounds deeper than the Sword and stripes though grievous yet are more easily born if not accompanied with reproaches And the same Seneca a little after tells us That grief arising from reproach is an affection or passion occasioned by the humbleness of a mind contracting it self by reason of some word or deed tending to our disparagement Against all these passions which seem to invade the tranquillity of the mind Christ fortifies his disciples only with patience so that in case the wrong offered us either in word or deed do not much hurt us it is more magnanimous to overcome them with sufferance and patience than to seek revenge either by force or Law And lest we should be discouraged by that vulgar saying Veterem ferendo injuriam invitas novam By over calmly bearing an old injury we do but invite a new Our blessed Saviour adds that even the second is rather to be endured than the first either repelled or revenged De Statuis 1. because such kind of injuries leave no evil Characters behind them besides what consists in our own foolish conceits For what St. Chrysostom observes is very true Contumelia non ab inferentis animo sed ex judicio eorum qui patiuntur aut sit aut perit A reproach doth either vex or vanish not according to his intention that inferred it but according to the apprehension of him that suffers it To offer the Cheek is an Hebrew phrase implying the bearing of a thing patiently as may be collected from Esay 30.6 and from Jeremy 3.3 Tacitus hist 3. whence the Latines borrowed it as appears by that Phrase so often used by Tacitus Terence and others Praebere os contumeliis is To bear reproaches patiently Ter. Adelph The third Objection is taken from the words following Ye have heard that it hath been Obj. 3 said Thou shalt love thy Neighbour and hate thine enemy But I say unto you Love your enemies bless them that curse you and pray for them that despitefully use you and persecute you Matth. 5.43 There are some that think that these duties of Dilection and Beneficence to our enemies are directly opposite to War and Capital punishments But this objection will easily vanish if we do but understand the very words of the Hebrew Law for the Jews were commanded to love their Neighbours that is Jews or Hebrews equal unto whom were Proselytes but those laws which forbad them to do hurt reached even unto those Strangers that lived among them being uncircumcised Whereof before ch 1. §. 16. as the Talmudists note for in this sence is the word Neighbour there taken as appears Levit. 19.17 being compared with the Verse there following And yet notwithstanding were the Magistrates commanded to inflict Capital punishments upon Homicides seducers of the people to Idolatry and other hainous and obstinate Malefactors So notwithstanding this precept of loving their Neighbours the 11 Tribes did justly make war against the Tribe of Benjamin for their more than barbarous inhumanity Judg. 21. so notwithstanding this Precept did David who is said to fight the Lords battels by force of Arms recover the Kingdom being promised to him from Ishbosheth But admit that the word Neighbour doth now extend it self to all mankind for as much as all are now fellow Denizens all received into the Covenant of Grace and no one people accursed from God yet what was heretofore lawful for the Israelites will be as lawful for us both being obliged to the same duties of Love and Beneficence But you may haply say That the Evangelical Law requires an higher degree of love than the Mosaical Law did Even this also I grant with this allowance that all are not equally to be beloved our Parents and our Children are certainly to be preferred before Strangers and our Neighboâ—â—s before our Enemies 'T is true Adv. Pelag. dialog 1. saith St. Hierom I am commanded to love mine enemies and to pray for my persecutors but yet is it just that I should love them equally as I do my Neighbours and kinsmen Is it equal that I should make no difference between my Friends and mine Adversaries There are degrees of Dilection Surely the Laws of a well ordered Affection do command me to prefer the Righteous before the wicked and the publick safety before the safety of any private person Now out of the very love we bear to the righteous do we put the wicked to death and out of our care to the publick peace do we make war upon those that disturb it If therefore our Saviours precepts do admit of degrees and if the greater obligation do tye us to the stricter duty then are we not bound to preserve the nocent when in so doing we endanger if not destroy the innocent That of Seneca is very well known Tam omnibus ignoscere crudelitas est quam nulli Lib. 1. de clem It is as great a cruelty to pardon all as to pardon none Chrysostom speaking of such humane punishments as are inflicted on the obstinate saith that they proceed not from cruelty but from goodness And St. Augustine affirms That as there is sometimes crudelitas parcens a cruelty in pardoning so there is sometimes misericordia puniens mercy in punishing Those protections therefore that ripen sin by giving too great encouragement to sinners are to be removed For as Totilas in Procopius speaks Peccare See Bo. 2. ch 2◠§. 2. prohibere poenas peccantium in pari pono He that commits a crime and he that hinders a Criminal from due punishment are alike faulty Besides we are commanded to love our Enemies by the example of God himself who causeth the Sun to shine and the Rain to fall as well on the Evil as on the Good And yet doth the same God put a manifest difference between them visiting the sins of such as are incorrigible with heavy judgments in this life and yet reserving much heavier for them to be inflicted in the life to come And thus are all those Objections drawn from those precepts enjoyning Christians to mercy lenity beneficence against war and Capital punishments easily answered For Almighty God though he pleased to make himself known unto us principally by these Attributes of Gentleness Long sufferance Gods patience doth not hinder his justice and Patience John 4.2 Exod. 34.6 yet do the holy Scriptures almost in every page set forth and declare his indignation and wrath against obstinate and contumacious sinners as Numb 14.18 Rom. 2.8
ordinary course of Justice may be had Now Judgment ceaseth either for a while only or for continuance For a while when the Judge cannot be so long waited for without certain danger and damage Servius upon these words of Virgil Injicere manum parcae The Fates have snatcht him hence tells us That the Poet makes use of a Phrase borrowed from the Law for it is called Injectio manus the snatching away of a thing as it were by force when without attending the warrant of Authority we suddenly seize upon something that is our due which is usually done when the Laws do for a while cease And sometimes there is a total and continued cessation of Judgment and that either by Right or in Fact By Right as in places that are desert and unoccupied on the Seas and in Islands not inhabited and in any other such places wherein are not civil Societies In Fact as when Subjects do not regard the Sentence of the Judge or the Judge publickly refuses to examine the case Now what we said before namely that since publick Judicatories were established all Private Wars are not repugnant to the Law of Nature is clearly evinced by the Law given to the Jews Exod. 22.2 where God gives this charge by Moses If a Thief be found breaking up i. e. by night and be smitten that he dye there shall be no blood shed for him but if the Sun be risen upon him there shall be blood shed for him Certainly this Law so accurately distinguishing of the time when the offence was committed seems not only to induce an impunity but serves to explain even the Law of Nature being not so much grounded on any one particular Divine Precept as indeed upon common equity which guided other Nations also to do the like Solon's Law The old Attick Law was this If any man shall steal in the day time to above the value of fifty Drachmaes let him be tryed by eleven men But if a man shall steal to the smallest value in the night he may lawfully be killed This ancient Law of Solon doubtless occasioned that of the twelve Tables among the Romans Si nox furtum faxit Vide infra Bo. 2. ch 12. si furem aliquis occisit jure caesus esto If any man shall kill a Thief robbing in the night he shall be held innocent So by the Laws of all Nations that as yet we have known He that by Arms shall defend himself against him that attempts to take away his life is accounted guiltless which so plain a consent doth evidently assure us that there is nothing in it repugnant to the Law of Nature III. Neither is it repugnant to the Evangelical Law But whether this private war be justifiable by the more perfect Law of the Gospel is somewhat more doubtful I dare not but grant that Almighty God who hath a much greater power over lives than we have might have imposed upon us such an unlimited patience that even privately in a case of imminent danger we ought rather to be killed than to kill But whether it be his pleasure thus strictly to tye us up is the thing in question There are two places of Scripture that seem to favour the Affirmative which we quoted above when we handled the general question The former was that in the fifth of Mat. v. 39. Mat. 5.39 Resist not him that doth thee an injury And the latter that in the twelfth to the Rom. v. 19. Dearly Beloved Avenge not your selves which the Latin Translation renders Defend not your selves But a third may be added namely that of Christ to Peter Mat. 26.52 Put up thy Sword into the Sheath for they that take the Sword shall perish by the Sword Some there are likewise that urge the example of Christ himself who dyed for his enemies Rom. 5.8 10. Neither are there wanting among the Ancients some who although they do not disallow of publick War yet believed that all private even that which is defensive was forbidden Some places out of St. Ambrose for war we alledged above but many more and much clearer and more generally known may be produced out of St. Augustine In Luc. 10. But yet the same Ambrose in another place saith That haply therefore Christ said unto Peter when he shewed him two Swords It is enough As if till the Gospel came it had been lawful that so there might be as in the Law the doctrine of Equity so in the Gospel the doctrine of Verity De off l. 3. c. 3. And in another place he tells us That a Christian though assaulted by Robbers ought not to strike again Ne dum salutem defendit pietatem contaminet Lest whilst he seeks to preserve his own safety Lib. 1. de lib. Arb. 15. he sin against piety And St. Augustin himself speaking of Thieves and Robbers saith Legem quidem non reprehendo qua tales permittit interfici sed quomodo istos qui intersiciunt defendam non invenio The Law that adjudgeth these men to death Ep. 154. ad Publ. Cap. 43. 55. I disallow not but how to justifie the Executioners I find not And in another place But as to them that give advice that some men are to be put to death lest others by them should be destroyed I cannot subscribe unless he that kills him be either a Soldier or a publick Executioner who doth it not by his own but by publick Authority And of the same opinion was Basil as appears in his second Epistle to Amphilochius whereunto we may add the last Canon of the Council of Orleans C. 13. q. 2. cited by Gratian. But the opposite opinion as it is more Catholick so it seems to be more agreeable to truth namely That Christians are not obliged to such an height of patience We are indeed commanded by the Christian Law to love our Neighbours as our selves but not above our selves so that when we are both of us involved in the same or in equal danger we are no where forbid to preser our own safety before anothers as we have already proved by the Rules St. Paul gives to Christian Beneficence and which Cassiodore in the duties or offices of Friendship likewise confirms There is saith he neither Law nor Reason Cass de Anicitia that can oblige us to redeem another mans soul with the loss of our own or to procure the preservation of his body setting aside our hopes of eternal salvation with the certainty of our own ruine But if any man should object that we are bound to prefer our selves before others in dangers that are equal but not in such as are unequal and therefore I ought rather to give up mine own life than to suffer him that invades me to fall into eternal damnation To this we answer That it is probable that he that is assaulted may stand in as much need of time to repent in and that the Aggressor may also have
the very same words But yet if either for this or for any other cause any injury be offered unto us because it so please him that hath the Soveraign Power it ought rather to be patiently tolerated than by force resisted For although we do not owe an active obedience to such Commands of Princes yet we do owe a passive though we ought not to violate the laws of God or of Nature to fulfil the will of the greatest Monarch yet ought we rather patiently to submit to whatsoever he shall inflict upon us for not obeying than by resistance to violate our Countries peace The best and safest course we can steer in such a case is either by Flight to preserve our selves or resolvedly to undergo whatsoever shall be imposed on us II. War against Superiors as such unlawful And naturally all men have a right to repel Injuries from themselves by resisting them as we have already said But Civil Societies being once instituted for the preservation of Peace there presently succeeded unto that Common-wealth a certain greater Right over us and ours so far forth as was necessary for that end And therefore that promiscuous Right that Nature gave us to resist the Common-wealth for the maintaining of good order and the publick peace hath a right to prohibit which without all doubt it doth seeing that otherwise it cannot obtain the end it proposeth to it self For in case that promiscuous Right of forceable resistance should be tolerated it would be no longer a Common-wealth that is a Sanctuary against Oppression but a confused Rabble such as that of the Cyclops whereof the Poet thus Where every Ass May on his Wife and Children Judgment pass A dissolute Company where all are speakers and no hearers Like unto that which Valerius records of the Bebricii Who all Leagues and Laws disdain And Justice which mens minds in peace retain Salust makes mention of a wild and savage people living like Beasts in Woods and Mountains without Laws and without Government whom he calls Aborigines And in another place of the Getuli who had neither Laws good Customs nor any Princes to govern them But Cities cannot subsist without these Generale pactum est societatis humanae regibus obedire All humane Societies saith St. Augustine unanimously agree in this to obey Kings So Aeschylus Kings live by their own Laws subject to none And Sophocles They Princes are obey we must what not To the same Tune sings Euripides Folly in Kings must be with patience born Whereunto agrees that of Tacitus Principi summum rerum arbitrium Dii dederunt c. Subditis obsequii gloria relicta est God hath invested a Prince with Soveraign Power leaving nothing to Subjects but the glory of Obedience And here also Sen. Things base seem Noble when by Princes done What they Impose bear thou be 't right or wrong Wherewith agrees that of Salust Impunè quid vis facere hoc est Regem esse To do anything without fear of punishment is peculiar to Kings for as Mark Anthony urged in Herod's case If he were accountable for what he hath done as a King he could not be a King Hence it is that the Majesty of such as have Soveraign Power whether in one or more is senced with so many and so severe Laws and the licentiousness of Subjects restrained with such sharp and exquisite torments which were unreasonable if to resist them were lawful If a Souldier resist his Captain that strikes him An Officer striking must not be struck again and but lay hold on his Partisan he shall be cashiered but if he either break it or offer to strike again he shall be put to death for as Aristotle observes If he that is an Officer strike he shall not be struck again III. The unlawfulness of making war against our Superiors proved by the Jewish Law By the Hebrew Law He that behaved himself contumaciously against either the High-Priest or against him who was extraordinarily by God ordained to govern his people was to be put to death and that which in the eighth Chapter of the first Book of Samuel is spoken of the right of Kings to him that throughly inspects it is neither to be understood of their true and just rights that is of what they may do justly and honestly for the duty of Kings is much otherwise described Deut. 8.11 nor is it to be understood barely of what he will do for then it had signified nothing that was singular or extraordinary Jos 1.18 1 Sam. 8.11 Deut. 17.14 for private men do the same to private men But it is to be understood of such a fact as usurps or carries with it the priviledge of what is right that is that it must not be resisted although it be not right for Kings have a Right peculiar to themselves and what in others is punishable in them is not That old Saying Summum jus summa injuria Extreme right is extreme wrong is best fitted to the case of Kings whose absolute power makâ—s that seem right which strictly taken is not so There is a main difference between Right in this sence taken Right differenced from Just and Just for in the former sence it comprehends whatsoever may be done without fear of punishment but Just respects only things lawful and honest And though some Kings there be who are what Servius in Cicero's Philippicks is commanded to be magis Justitiae quam Juris Consulti More regardful of their honour and duty than of their power and prerogatives Yet this doth not diminish their Soveraign Right because if they will they may do otherwise without the danger of being resisted And therefore it is added in that place of Samuel before cited That when the people should at any time be thus oppressed by their Kings as if there were no remedy to be expected from men they should invoke his help who is the Supream Judge of the whole Earth So that whatsoever a King doth though the same done by an inferiour person would be an Injury yet being done by him is Right As a Judge is said Jus reddere to do right though the sentence he gives be unrighteous IV. By the Gospel Law When Christ in the New Testament commanded to give Caesar his due doubtless he intended that his Disciples should yield as great if not a greater obedience as well active as passive unto the higher Power than what was due from the Jews to their Kings which St. Paul who was best able to Interpret his Masters words expounding Rom. 13. doth at large describe the duty of Subjects Rom. 13.2 charging those that resist the power of Kings with no less Crime than Rebellion against Gods Ordinance and with a Judgement as great as their sin For saith he They that do so resist shall receive unto themselves damnation And a little after he urgeth the necessity of our subjection Not altogether for fear but for Conscience as knowing that He
Supreme seem to introduce such a state of things as the Poets fansied to have been in Heaven before Majesty was thought on when the lesser Gods denyed the Prerogative of Jupiter But this order or Subordination of one to another is not only approved of by common experience as in every Family the Father is the head next unto him the Mother then the Children and after them the Servants and such as are under them So in every Kingdom Each power under higher powers are And All Governours are under Government To which purpose is that notable saying of St. Augustine Grat. c. 11. â— 3. Qui resistit Observe saith he the degrees of all humane things if thy Tutor enjoyn thee any thing thou must do it yet not in case the Proconsul command the contrary Neither must thou obey the Consul if thy Prince command otherwise For in so doing thou canst not be said to contemn Authority but thou chusest to obey that which is highest Neither ought the lesser powers to be offended that the greater is preferred before them For God is the God of order And that also of the same Father concerning Pilate Ad Johan Because saith he God had Invested him with such a Power as was it self subordinate to that of Caesar ' s. But it is also approved of by Divine Authority 1 Ep. 2.1 For St. Peter enjoyns us to be subject unto Kings otherwise than unto Magistrates To Kings as Supreme that is absolutely without exceptions to any other commands than those directly from God who is so far from justifying our resistance that he commands our passive obedience But unto Magistrates as they are deputed by Kings and as they derive their Authority from them Rom. 13. And when St. Paul subjects every soul to the higher Powers doubtless he exempts not Inferiour Magistrates Neither do we find amongst the Hebrews where there were so many Kings utterly regardless of the Laws both of God and Men any Inferiour Magistrates among whom some without all question there were both Pious and Valiant that ever arrogated unto themselves this Right of resisting by force the Power of their Kings without an express command from God who alone hath an unlimited power and jurisdiction over them But on the contrary what duties Inferiour Magistrates owe unto their Kings though wicked Samuel will Instruct us by his own example who though he knew that Saul had corrupted himself 1 Sam. 15 3â— and that God also had rejected him from being King yet before the people and before the Elders of Israel he gives him that reverence and respect that was due unto him And so likewise the state of Religion publickly profest did never depend upon any other humane Authority but on that of the King and Sanhedrim For in that after the King the Magistrates with the people engaged themselves to the true worship and service of God it ought to be understood so far forth as it should be in the power of every one of them Nay the very Images of their False Gods which were publickly erected and therefore could not but be scandalous to such as were truly Religious yet were they never demolished so far as we can read of but at the special command either of the people when the Government was Popular or of Kings when the Government was Kingly And if the Scriptures do make mention of any violence sometimes offered unto Kings it is not to justifie the fact but to shew the equity of the Divine Providence in permitting it And whereas they of the contrary perswasion do frequently urge that excellent saying of Trajan the Emperour who delivering a Sword to a Captain of the Praetorian Band said Hoc pro me utere si rectè impero si malè contra me Vse this Sword for me if I govern well but if otherwise against me We must know That Trajan as appears by Pliny's Panegyrick was not willing to assume unto himself Regal power but rather to behave himself as a good Prince who was willing to submit to the Judgement of the Senate and people whose decrees he would have that Captain to execute though it were against himself Whose example both Pertinax and Macrinus did afterwards follow whose excellent Speeches to this purpose are recorded by Herodian The like we read of M. Anthony who refused to touch the publick Treasure without the consent of the Roman Senate VII Of resistance in case of inevitable necessity But the Case will yet be more difficult whether this law of not resisting do oblige us when the dangers that threaten us be extreme and otherwise inevitable For some of the Laws of God himself though they sound absolutely yet seem to admit of some tacite exceptioâ—s in cases of extreme necessity For so it was by the wisest of the Jewish Doctors expresly determined concerning the Law of their Sabbath in the times of the Hasamonaeans Whence arose that famous saying among them Periculum animae impellit Sabbatum The danger of a mans life drives away the Sabbath When the Jew in Synesius was accused for the breach of the Sabbath he excuseth himself by another Law and that more forcible saying We were in manifest jeopardy of our lives When Bacchides had brought the Army of the Jews into a great strait on their Sabbath day placing his Army before them and behind them the River Jordan being on both sides Jonathan thus bespake his Souldiers Let us go up now and fight for our lives for it standeth not with us to day as in times past 1 Macc. 9.43 44 45. Which case of necessity is approved of even by Christ himself as well in this Law of the Sabbath as in that of not eating the Shew-bread And the Hebrew Doctors pretending the authority of an Ancient Tradition do rightly Interpret their Laws made against the eating of meats forbidden with this tacite exception Not that it was not just with God to have obliged us even unto death but that some Laws of his are conversant about such matters as it cannot easily be believed that they were intended to have been prosecuted with so much Rigour as to reduce us to such an extremity as to dye rather than to disobey them which in humane Laws doth yet further proceed I deny not but that some acts of vertue are so strictly enjoined that if we perform them not we may justly be put to death As for a Sentinel to forsake his station But neither is this to be rashly understood to be the Will of the Law-giver Nor do men assume so much Right over either themselves or others unless it be when and so far forth as extreme necessity requires it For all humane Laws are so constituted or so to be understood as that there should be some allowance for humane frailty The right understanding of this Law ☜ of resisting or not resisting the highest Powers in cases of inevitable necessity seems much to depend upon the Intention of
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
presently make Laws to legitimate their errors and by those very Laws they judge the Innocent who are at length Crowned with Martyrdom Ep. 166. And in another place Tyrants are so to be endured by their Subjects and hard Masters by their Servants that both their temporal lives if possible may be preserved and yet their eternal safety carefully provided for Which he illustrates by the examples of the Primitive Christians Who though they then sojourned upon earth as Pilgrims and had infinite numbers of Nations to assist them yet chose rather patiently to suffer all manner of torments than forcibly to resist their Persecutors Neither would they fight â—o preserve their temporal lives but chose rather not to fight that so they might ensure unto themselves an eternal For they endured Bonds Stripes Imprisonment the Rack the Fire the Cross they were flea'd alive killed and quartered and yet they multiplied they esteemed this life not worth the fighting for so that with the loss of it they might purchase what so eagerly they panted after a better Of the same opinion was Cyril as may appear by many notable sayings of his upon that place of St. John where he treats of Peter's Sword The Thebean Legion The Thebean Legion we read consisted of six thousand six hundred sixty six Soldiers and all Christians who when the Emperor Maximianus would have compelled the whole Army to sacrifice to Idols first removed their Station to Agaunus and when upon fresh orders sent after them they refused to come Maximianus commanded his Officers to put every tenth man to death which was easily done no man offering to resist At which time Mauritius who had the chief command in that Legion and from whom the Town Agaunus in Switzerland was afterwards called St. Mauritz as Eucherius Bishop of Lyons records thus bespake his Fellow Soldiers How fearful was I lest any of you under the pretence of defending your selves as was easie for men armed as ye are to have done should have attempted by force to have rescued from death those blessed Martyrs Which had you done I was sufficiently instructed by Christs own example to have forbidden it who expresly remanded that Sword into its sheath that was but drawn in his own defence thereby teaching us that our Christian Faith is much more prevalent than all other Arms. This Tragick Act being past the Emperor commanding the same thing to the Survivors as he had done before to the whole Legion they unanimously returned this answer Tui quidam Caesar Milites sumus c. We are thy Soldiers O Caesar we took Arms for the defence of the Roman Empire we never yet deserted the War nor betrayed the trust reposed in us we were never yet branded with fear or cowardise but have always observed thy commands until being otherwise instructed by our Christian Laws we refuse to worship the Devil or to approach those Altars that are always polluted with blood We find by thy Commands that thou resolvest either to draw us into Idolatry or to affright us by putting every tenth man of us to death Make no farther search after those that are willing to lye concealed but know that we are all of us Christians all our Bodies thou hast indeed under thy power but our Souls are subject only to Christ our Redeemer Then Exuperius being the Standard-bearer to that Legion thus bespake them Hitherto Fellow Soldiers I have carried the Standard before you in this secular War but it is not unto these Arms that I now invite you it is not unto these Wars that I am now to excite your valour for now we are to practise another kind of warfare for with these weapons ye can never inforce your way into the Kingdom of Heaven And by and by he sends this message to the Emperor Against thee O Caesar Desparation it self which usually makes even Cowards valiant cannot prevail with us to take Arms. Behold we have our weapons fixt yet will we not resist because we chuse rather to be killed by thee than to overcome thee and to dye innocents than to live Rebels to either God or thee And a little after he adds Tela projicimus c. We abandon our Arms O Emperor and will meet thy Messengers of Death with naked breasts yet with hearts strongly munited with Christian Faith And presently after followed that General Massacre of the Thebean Band whereof Eutherius gives this Narrative It was neither their Innocence nor their Numbers that could exempt them from death whereas in other more dangerous tumults a multitude though offending are rarely punished The same story in the old Martyrology we find thus recorded They were every where wounded with Swords yet they cryed not out but disdaining the use of their Arms they exposed their Breasts naked to their persecutors It was neither their numbers nor their experience in War that could perswade them to assert the Equity of their cause by their Swords but placing his example always before them who was led to the slaughter dumb and liâ—e a Lamb to be Sacrificed opened not his mouth they also in imitation of him like the Innocent Flock of Christ suffered themselves to be worried and torn in pieces by an herd of Persecuting Wolves Thus also do the Jews of Alexandria testifie their Innocency before Haccus We are as then seest unarmed and yet we are accused unto thee as publick enemies to the State These hands which nature hath given us for our defence we have caused to be pinnacled behind us where they are of little use and our breasts we expose naked to every man that hath a mind to kill us And when the Emperour Valens cruelly Persecuted those Christians which according to the Holy Scriptures and the Traditions of the Ancient Fathers profest Christ to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Co essential with the Father though there were every where great multitudes of them yet did they never attempt by Arms to secure themselves Surely 1 Pet. 2.21 wheresoever patience in times of persecution is commended unto us there we find Christs own example held out unto us as we read it was to the Thebean Legion for our Imitation Mat. 10.39 As therefore his Patience so ours should have no bounds nor limits but death it self Luk. 12.33 And he that thus loseth his life is truly said by Christ himself to find it Thus having sufficiently proved That he that is invested with the Supreme Power ought not to be resisted Now I must admonish our Reader of some things wherein he may mistake by judging that those men do dash their Feet against this stone who indeed do not VIII That a free people may make War against their Prince In the first place therefore Those Princes that are under the body of a people whether they originally retained such a power or by some after contract or agreement made with them as in Lacedaemon if they do violate the Laws or wrong the
justly objected against me that I brought my self into that danger because I proposed nothing to my self but either to defend or recover what was mine own or to take the Thief which to me is lawful nor do I injure any in the use of lawful means to a lawful end But the difference between a Nocturnal and a Diurnal Thief consists in this That in the Night there can hardly be found witnesses sufficient to testifie the matter of Fact Therefore in case a Thief be found slain we do easily give credit to him In the Night Witnesses cannot prove the Theft who shall confess that he slew him in his own defence especially if the slain Thief be found with any offensive weapon by him For this is by the Hebrew Law required That the Nocturnal Thief was found digging through an house as some have translated the Hebrew word or as others better with a digging Instrument about him as the most Learned of them have expounded that place of Jer. 2.34 I am the more easily guided to this Exposition by the Law of the Twelve Tables A Nocturnal Thief may be killed if he have any Weapons about him whereby it is forbidden to kill a Thief that robs by day with this exception Unless he shall defend himself with some weapon Now it is to be presumed that a Thief that robs by Night hath weapons about him to defend himself By Weapons the Lawyer Cajus understands either Iron a Club or a Stone on the contrary it is the opinion of Vlpian That whereas it is provided by the Law that he that kills a Thief by Night shall be indempnified it ought to be understood in case that in defending his Goods he could not otherwise free himsâ—lf from danger There is therefore as I said a strong presumption for him that kills a Nocturnal Thief But if there were sufficient witnesses to prove that he that killed such a Thief was in no such danger then the presumption would instantly cease and he that should kill the said Thief should be held guilty of Homicide It is likewise provided by the Law of the Twelve Tables That he that apprehends a Thief whether by Day or Night should publish it with an Out-cry as Cajus instructs us that so A Noâ—turnal Thief must be assaulted with an Out-cry if it might be both the Magistrate and the people may be called in to assist and give testimony to the matter of Fact But because such a Concourse cannot so easily be procured in the Night as in the Day therefore is more credit given unto him that shall affirm that he killed the Nocturnal Thief in his own defence Not unlike is that Hebrew Law in the case of Ravishment which if committed in the Field the person ravished was to have been believed but not so if in the City Because there she both might and ought by her clamour to have called in the Neighbours to her assistance Not that the Case of Ravishment is alwayes to be determined by this Rule as Philo well expounds this place A Rape committed in the Field and in the City differenced For possible it is that such a fact may be committed in a City without clamour by stopping the mouth and that in the Field it may be done with Consent as in his Book of Special Laws he affirms But that this Rule is to guide us in ordinary cases of Ravishment moreover admitting the dangers to be equal yet in the Night because we cannot so well descry what the dangers are either for Quality or Quantity therefore though the dangers may be less yet the terror must needs be more Let this also be observed that both the Hebrew and Roman Laws though they appear severe yet are they usually addulced by Charity For they would not willingly punish Theft with death there being so great a disproportion between Life and Goods unless the Injured person in striving to recover his Goods shall be brought in jeopardy of his Life And Moses Maimonides hath left this Charitable Rule for our Guide whilst he gives no private man power to take away the life of another unless it be in the defence of that which being lost is irreparable such as are Life and Chastity XIII How far forth Lawful by the Evangelical Law But the Question is Whether the Evangelical Law being more Sublime and Spiritual than either the Jewish or Roman Laws do not require a more strict and perfect obedience than those Laws do And clearly it doth For if our Blessed Saviour do enjoyn us to part with our Coat and our Cloaks and if St. Paul admonish us to suffer our selves to be dispoiled of our Goods rather than contend in Law for them which is a kind of unbloody strife How much more doth that Law expect that we should rather forbear and forego things though of a greater value than embrew our hands in our Neighbours blood he being Gods own Image and of the same nature with our selves Wherefore if our Goods being stoln may be recovered or defended without the danger of bloodshed we do well so to do But if not we ought rather willingly to lose them than to stain our hands with the blood of him that robs us unless the things stoln be such as are necessary for the sustentation of our selves or our families and which cannot by any Courts of Justice be recovered because haply the Thief is not known and that there is some fear Forte quia fur sit ignotus Spes siâ— aliqâ—a sine caede rem abituram that without bloodshed the thing will be gone And although almost all both Divines and Lawyers do at this day maintain That to kill him that shall attempt to rob us of our Goods is lawful even beyond those limited bounds wherein the Jewish and Roman Laws permitted it as namely in case the Thief being possest of our Goods do fly yet that this was the sense of the Holy Scriptures in the Primitive Times I cannot doubt De lib. Arb. l. 1. Neither did St. Augustin think otherwise as may appear by these his own words Quomodo apud divinam providentiam à peccato liberi sunt qui pro his rebus quas contemni oportet humana caede polluti sunt How can they appear Innocent before Gods Tribunal who for things not worthy a Christians care can pollute themselves with humane blood But doubtless in this as in many other things of the like nature Cum tempore laxata est disciplina The ancient discipline of the Church is through age grown feeble and by little and little instead of fitting our lives to the strict Rules of the Gospel we expound those Evangelical Precepts in favour to the Corruptions of the Age we live in This ancient discipline although almost forgotten among the Laity ☞ yet was wont heretofore to be strictly observed by the Clergy but now it is almost if not altogether laid aside by these also Thus St. Jerom
complains in the Life of Malchus †4 Vid. c. sâ—scepimus de hoâ—icid voluntario Canon de his Dist 1. After the Church of Christ began to be governed by Christian Princes she grew outwardly indeed more Splendid but inwardly less vertuous XIV Whether the Civil Law doth permit only or approve of this kind of Intersection It is questioned by some Whether the Law at least the Civil Law as it hath power of life and death in such cases wherein it suffers a private person to kill a Thief doth so far legitimate the Fact as to make it altogether blameless But this I cannot grant For in the first place The Law it self hath not the power of death over all its subjects for every offence but for such Crimes only as deserve death And very probable is the opinion of Scotus That it is not lawful to adjudge any man to death unless it be for such Crimes as the Mosaical Law punished with death with this addition only or for such Crimes as may be equally emballanced with them Neither doth the knowledge of the will of God which alone can satisfie the mind concerning this so great and weighty a matter so plainly elsewhere appear as it doth in that Law of Moses whereby the Thief is not adjudged unto death Besides the Law neither ought nor usually doth give unto any man a Right to put a Malefactor to death privately though he deserve it unless it be for some great and horrible Crime Otherwise the Authority of Magistrates and Courts of Judicature would soon dwindle to nothing Wherefore when the Law licentiates a man to kill a Thief it is to be understood that it rather tolerates than approves of the Fact and that it acquits him only of the punishment but not that it gives him a Right to do it XV. Single Combats when lawful From what hath been already said we may collect that in two cases single Combats may be undertaken by private men without sin In the first place If the Challenger shall grant his adversary a licence to sight and otherwise threatens to kill him immediately in case he refuse In the next place when a King or a Magistrate shall give licence to two Malefactors equally deserving death to try it out by Combat whether of them shall live And he that doth so doth not so rightly perform his duty as he might For it were much better if he intended to satisfie himself with the death of one only to determine which of them shall dye by Lot XVI Of Defence in a publick War What we have hitherto said concerning the Right we have to defend our Persons and Goods belongs principally to private War yet so as it ought also to be applyed to a publick some respect being had to the difference that is between them So saith Ammianus To all that are Invaded by a Foreign Power Lib. 23. Lib. 5. there is but one Law and that perpetual namely by all possible means to defend their own safety notwithstanding the force of any Custom For as Alâ—xâ—nder in Herodotus told his Souldiers He that is the Aggressor hath no colourable excuse for his Injustice But he that defends himself only gathers Courage from a good Conscience and fortifies his hopes in this that he doth not infer an injury but repel one Now in a private War this Right of killing another is but momentany and determines as soon as the matter may be brought before a Judge But in a publick War which beginneth not till Justice and Judgement cease there this Right lasts long being fomented and perpetuated by such accidents damages and wrongs as are every day renewed in the prosecution of the War Besides in a private War we have scarce any other end than our own defence But the Supream Powers have a Right not only to defend themselves but to be avenged on others whence it is likewise lawful for them not only to resist certain and present dangers but to prevent such as seem to threaten afar off Not directly for that as I have already said were Injustice but indirectly by revenging such wrongs as are already begun although not â—uâ—ly â—â—nsâ—mmaâ—e concerning which we shall have cause to speak anon XVII When only to curb the power of a Neighbour Prince unlawful Neither can we approve of that which some Authors do affirm for truth namely That by the Law of Nations it is a sufficient ground of a Just War to suppress the over-swelling Power of some ambitious Prince who if let alone may exceedingly annoy us That in our ordinary Councils of War Alb. Gent. lib. 1. c. 14. this usually comes in debate I grant But not so much under this Notion because it is Just but as it is profitable So that in case the War for other causes be Just for this cause it may prudentially be undertaken And this is all that the Authors before cited do in effect say But from a meer possibility that we may hereafter suffer wrong to conclude a present Right or a necessity of doing wrong will prove no good Inference in a Court of Equity Bal. lib. 3. de rer divis For all humane affairs are obnoxius to so many contingencies that no security can be expected in this life Against all uncertain and Ignote dangers our safety consists not in our Arms but in our Innoxious prudence co operating with the Divine Providence XVIII Defence in such as have given just cause of War unlawful Nor less unsatisfied am I with their Reasons who affirm That their Defence is Just who have given an occasion of a Just War Because say they There are very few that will be contented with such a measure of revenge as is proportionable to the Injuries they have received For this very Fear of what is to come being uncertain cannot justifie us in the defence of Injuries already done For so the malefactor may justifie his resistance of the publick Ministers of Justice by his fear that they will inflict a greater punishment upon him than his Crime deserves But he that gives just cause of offence ought in the first place to tender such satisfaction as in the judgement of unbyassed men is equivalent to the wrong done which if refused then is his defence Just 2 Kings 18.7 14. c. 19. Thus did Hezekiah who for breaking the League which his Ancestors had made with the Kings of Assyria being threatned with War confest his fault and promised to pay whatsoever the said King should impose upon him which being done when notwithstanding he was afterwards Invaded with a powerful Army trusting to the Justice of his Cause he made his defence and had the Most High God for his Protector Pontius Samnis after he had made restitution to the Romans of their Goods and delivered up the Authors of the War pleads thus with them We have I hope appeased the just wrath of Heaven against us for our breach of the League and am
notwithstanding the children do naturally owe reverence could not by her descent make the Marriage void no nor the father of a Free-man And if the Father himself be under the power of his own Father then the consents of both Father and Grand-father are required to the Sons Marriage But to the Marriage of a Daughter the Grand-fathers consent alone sufficeth Which differences being altogether unknown to the Law of Nature doth evidently prove that they arise not from the Natural but from the Civil Laws We find in Sacred story That many holy men and much more Virgins not to chuse Husbands for themselves 1 Cor. 7.36 Lib. 1. de Abrah c. ult women who by reason of their modesty and bashfulness ought especially in this case to be governed by others have in contracting Marriages submitted themselves to the authority of their Parents Non est virginalis pudoris eligere maritum It becomes not a Virgins modesty saith Ambrose †Grat. c. 32. q. 2. to chuse an Husband for her self And yet was not Esau's Marriage declared null nor his Children held as Illegitimate because in his Marriage he had not the consent of his Parent It is true That as to Daughters the chief power of disposing them is in the Father So in Euripides Hermione My Nuptial I to Parents care alone Commit for free choice therein have I none But as to Sons If we respect strict and Natural Right that of Quintilian will be found true That if it be lawful for a Son at any time to do things otherwise unreprovable without yea against his Fathers will surely that liberty is never more justifiable than in Marriage For as Cassiodore truly observes Durum est libertatem liberam non habere in Matrimonio Lib. 7. c. 4. unde liberi procreantur To be debarr'd of our free choice in Matrimony from whence our Children should be born is hard Ter. Andr. Act. 1. sc 5. nothing is more plain than that a Son in his Marriage should please himself XI It is a void Marriage that is contracted with anothers Wife or Husband That Marriage that is contracted with another mans Wife is doubtless null by the Law of Nature unless her former Husband have dismist her For so long doth his power last over her which by the Evangelical Law is not dissolved but by death The latter Marriage therefore is null for want of a moral power in the woman to dispose of her self which being lost by her former Marriage doth vitiate all those subsequent effects that attend it because every Act is but the invading of anothers Right So likewise on the other side by the same Law a Marriage contracted with the Husband of another Woman is alike void by reason of that power that Christ gives a chaste Wife over the body of her Husband XII Of Marriages between kindred Concerning Marriages between such as are nearly allied or of the same blood many difficult questions arise which are often with much zeal and animosity agitated on both sides Because he that shall undertake to assign certain and natural reasons why these Marriages that are by Law or Custome thus forbidden are unlawful should experimentally find how hard nay how impossible it is to effect it That alledged by Plutarch in his Roman Questions by St. Augustine in his Book De Civitate Dei by Philo in his Special Laws and by St. Chrysostome on 1 Cor. 13.13 as the contracting of new Friends and the strengthning our selves with new Alliances savours more of Policy than true Piety Nor are they of that force and energy as to conclude the contrary Acts to be either unlawful or void Whereunto may be added That some cases there may be wherein such prohibited Marriages may be more profitable and politick than others The Marriage of kindred sometimes profitable and politick as may be collected not only from that which God himself in his Law given to the Jews excepts of raising Seed to a deceased Brother having no issue But from that also of a Virgin left by her Father as sole heir of all his estate who by the Grecian and Hebrew Laws was to be Married to the next of kin to preserve the name and Estate in their own Tribe and Family and from many such like cases which do or may occur But yet from this general rule Incestuous Marriages forbid by the Law of Nature and why we must except the Marriages of Parents with their Children in what degree soever the reason whereof is sufficiently evident For neither can the Husband who by the Law of Matrimony is the head of the Wife pay that respect and reverence that Nature binds him to give to his Mother nor the Daughter to her Father For though she be subordinate to her Husband by Matrimonial Right yet doth her Marriage allow her so great a Familiarity with her Husband as is altogether inconsistent with the duty of a Child Paulus the Lawyer was in the right when having saâ—d before That in contracting Marriages the Law of Nature and Modesty were chiefly to be regarded he added That it was against modesty for a man to take his own Daughter to be his Wife And Philo in his Special Laws condemns it as an execrable wickedness to pollute the bed of his deceased Father which as a thing Sacred ought not to be toucht and without regard to either the age or the reverence of a Mothers name to make himself both Son and Husband to the same Woman and to make her both Mother and Wife to the same Man Wherefore such Marriages are doubtless not illegal only but void by reason of something that is vicious which perpetually cleaves to the effects of it Neither is that Argument of Diogenes and Chrisippus which is drawn from the practice of Cocks and such like dumb creatures sufficient to prove that such commixtures are not repugnant to the Law of Nature That is unlawful which is repugnant to Humane Nature Lib. 2. Contr. Jâ—â—it For as I have already said it is enough to conclude any thing unlawful That it is repugnant though but to humane nature This is that Incest which the Lawyers Paulus and Papinian wrote to be by the Law of Nations committed between the degrees ascendent and descendent And this is that Law of Nature which as Xenophon notes is no less a Law because it was contemned by the Persians Medes Indians and Aethiopians for which they were punished with perpetual Wars Parricides Fratricides as Philo first and after him St. Hierome observed For as Michael Ephesius well interprets it That is Natural which is of common use amongst such Nations as are uncorrupted And that live most agreeable unto Nature And therefore Hippodamus the Pythagorean calls these incestuous commixtures inordinate and unnatural lusts unbridled passions and abominable pleasures Such were those of the Parthians whereof Lucan thus complains Epulis vesana meroque Regia non ullos exceptos legibus horret Concubitus With
very forceable as issuing from that which Nature her self doth if not command yet at least commend unto us as the more honest Of which kind there are many which afford abundance of matter for Laws both Divine and Humane And therefore the Hebrews do not precisely tye themselves to the degrees of the right line that are exprest in the Law but comprehend under them many degrees that are not there mentioned by a manifest parity of reason The names whereof with them are these The Mother of his Mother the Mother of his Mothers Father his Fathers Mother the Mother of his Fathers Father the Wife of his Fathers Father the Wife of his Mothers Father his Sons Wife the Wife of his Sons Son the Wife of his Daughters Son the Daughter of his Sons Daughter the Daughter of his Sons Son the Daughter of his Daughters Daughter the Daughter of his Daughters Son the Daughter of his Wives Sons Daughter the Daughter of his Wives Daughters Daughter the Mother of his Wives Fathers Mother the Mother of his Wives Mothers Father That is to say according to the Roman Dialect all Grand-mothers and Great Grand-mothers the Grand and Great Grand-mothers-in-law the Nephews and Neeces Daughters the Daughters of the Son-in-law the Nephews Wife and the Wives Mother and Grand-mothers because there is the same reason for the kindred on the Mothers side as for that on the Fathers And so under the first degree is comprehended the second and under the second the third Beyond which it is not likely that any Controversie should arise which might otherwise proceed in infinitum Now these Laws together with that which prohibits Brothers and Sisters to marry one another the Hebrews reckon among those which God gave unto Adam which were these The six Precepts given by God to Adam and Noah's Sons First That Enjoyning the worship of God Secondly That Commanding the ordaining of Magistrates and the administration of Justice Thirdly That Against the shedding of Innocent Blood Fourthly That Against Images or Idol-worship Fifthly That Against Rapine And Sixthly This against Incest Yet so that this last was not to be in force till the world was well replenished with mankind which in the beginning could not be avoided Neither do they think it to the purpose to say That Moses makes no relation of any such Laws given to Adam forbidding such Marriages For he thought it sufficient tacitely to couch it in the Law it self wherein he declares That the Nations were punished for these very sins Which they could not justly have been had there not been a Law given them that did forbid them There being many things recorded in the Law not in order of time but as occasion served to express them It will nothing avail then to say That these Incestuous Marriages were not sins because there was no Law against them before Moses for no more was there any Law then extant to punish Adultery with death Gen. 38.24 No Laws extant to punish Incest Rapes or Adultery yet we find these punished before Moses in the stories of Thaâ—ar Dinah and Reuben In the Jewish Law there is neither prius nor posterius yet we find Thamar sentenced to death for it by Judah So the punishment of the Sichemites by Simeon and Levi was just for ravishing their Sister Dinah though we read of no Law then published against it And the Incest of Reuben deserved his Fathers Curse though the Law forbidding it be not recorded For it was sufficiently condemned in this That the Nations were cast out by God for these things whereby it may probably be concluded That God had given such Laws to mankind before Moses his time though they are but obscurely glanced at by him And indeed the Jews have a notable wise saying which gives some light to those dark times namely that in their Law there is neither Prius nor Posterius First nor Last for many things are recited without order As touching the marriage of Brothers and Sisters the very words of Michael Ephesius are these For Brothers and Sisters to lye together was at the first indifferent but when there was a Law that forbad such Coition then whether that Law should be observed or not was not to be questioned And therefore Diodorus Siculus notes Lib. 1. that to abstain from such Commixtures was the common custom of all men the Egyptians only excepted though Dion Prusaeensis excepts also the Barbarians Seneca wrote thus We saith he joyn the Gods in marriage but with very little piety for we marry together Brothers and Sisters L. 8. de Leg. Plato calls such marriages prophane and abominable before God Whereby we may discern how mean an opinion other Nations as well as the Jews had of these Incestuous Marriages which they seldom mention without a Nefas to testifie their dislike of them All Brothers and Sisters as well on the Mothers side as on the Fathers side that is as well of the half as whole blood are comprised within this Law whether they are educated at home or abroad as is manifest by the Chaldee Paraphrast XIV Remote degrees seem not forbidden Now these marriages being expresly forbidden seem to justifie or at the least to tolerate those in more remote degrees For to marry an Aunt that is his Fathers Sister is expresly prohibited but yet to marry his Brothers Daughter which is equal in degree is not Such was Sarah to Abraham as Josephus thought †Hist l. 12. Jos Ant. Hist lib. 12. and lib. 76. Nay there are diverse Precedents for this among the Jews And after the Law given the same Josephus gives us examples in Herod who married his Brothers Daughter and gave his own Daughter to his Brother Pherotas There are certain marriages lately contracted saith Tacitus which to us are strange though not so with other Nations because forbidden by no Law Namely that a man should marry his Brothers Daughter this was held lawful among the Athenians as Isaeus and Plutarch in the Life of Lysias record whereof the Jews give this reason Because young men do daily frequent and are more usually brought up in their Grand-fathers and Grand-mothers houses amongst their Aunts than their Aunts are in their Brothers amongst their Nephews neither have they there so much Right Which if we do admit as it is indeed very agreeable to reason then we must acknowledge that the Law which Interdicts Marriages with Kindred in the right degree and with Sisters from whence sprung the whole race of mankind at first is now perpetual and obligeth all men being grounded upon natural honesty So that whatsoever is done against this Law may be made Null by reason of the Impediment that is lasting and permanent but what is done against other Laws is not so as being but cautionary against this which may be otherwise provided against Sure I am Marriage of two Sisters that by the Nineteenth Canon of those that are called the Apostles they that
an Intestate to whom it naturally descends Dominion being once introduced that which naturally guides the Succession to the estate of a person dying intestate setting aside the Civil Law is our conjecture at the Will of the deceased For seeing that the force of Dominion is such that it may be transferred at the will of the right owner unto another Therefore in case a man dyes possest of an estate leaving nothing to testifie his mind after his death because it is not credible that he would leave it to him that could next catch it therefore shall it succeed to him to whom it is probable he would have left it had he lived to have declared it Defunctorum voluntatem intellexisse pro jure est saith Pliny Junior To have understood the Will of the deceased is sufficient to create a Right Now to the dead this favour is indulged That in cases that are doubtful it is presumed That every man would do that which is most just and honest whereof in the first place is the payment of his just debts and in the next that which though not due yet is most agreeable to our duty And therefore what is committed to a mans trust may be restored saith Paulus the person dying Intestate that trusted it to those that succeed him because it may be believed That his Will was freely to leave the lawful Inheritance unto them IV. Whether Parents do owe unto their Children any part of their goods It is much controverted by Lawyers Whether Parents may be said to owe their children Aliment Some of them hold it to be agreeable to Natural Reason but deny it to be a Debt But we think it fit here to distinguish of the word Debt which may be taken either strictly for that which by Commutative Justice we are obliged to do or largely for that which cannot with honour or honesty be left undone as being a duty arising from another spring but not from that of Justice First Reason Now Aliment is due to Children if Humane Laws do not otherwise determine of it in this looser sense In which I conceive that of Val. Maximus is to be understood Our Parents by nourishing us hâ—ve laid this obligation upon us to nourish our Children And that also of Plutarch in that most elegant Oration of his concerning the Love of Parents towards their Children Liberi haereditatem ut sibi debitam expectant Our Children look for our estates as due unto them after our death So great was the Equity of this Lib. 2. de vita cler ser 52. ad frat in eremo Gratian. c. 13. q. 2. c. 17. q. 4. in fine Pers l. 1. Second Reason That St. Augustine would not admit that the goods of such as had exheredated their own Children should be received by the Church And as Procopius in his Persian Wars observes Though Humane Laws do in other things extreamly differ one from another yet all Nations as well Romans as Barbarians in this agree That Children should succeed to their Parents as the right owners of what they leave Again Qui formam dat dat quae ad formam sunt necessaria He that gives the form gives things necessary to that form saith Aristotle Therefore he that gives man his existence ought as much as in him lies to provide for him all things necessary for a Natural and Social life for hereunto he was born There needs no Law to bind us to this duty for all other creatures even by Natures instinct do feed their young As Pliny observes of Swallows That with great equity they feed their little ones by turns Summa aequitate alternant cibum Hence it is that the Ancient Civilians do refer the Education of Children to the Law of Nature And Euripides comprehends all Creatures under one and the same Law Which saith he is common as well to men among themselves as to them with all other sensible Creatures For that which Natural Instinct commends to them the same doth Reason prescribe unto us Of such force is Natural affection that it easily perswades us to nourish our Children saith Justinian Nature is an Indulgent Mistress to all living creatures equally instructing them how to conserve not only themselves but those that are born of them that so by this successive Charity she may aspire to make her self immortal Quintilian brings in the Son claiming a Portion of his Fathers Estate by the Law of Nations Partem jure gentium pâ—to And Salust condemns that Testament as impious and unnatural by which the Son is excluded from his part of the Inheritance And because this is a debt that we owe to Nature therefore is the Mother bound to nourish the Child that hath no certain Father The Roman Laws made no provision for Bastards And though the Roman Laws made no provision for Children ex damnato legibus Concubitu that were illegitimate and that by Solons Laws it was provided That no man should leave any thing to his Natural Issue yet do the Canons of our Religion correct the severity of these Laws by teaching us That our Children however begotten by us should be a part of our care and that in case it be needful Beyond necessaries no man bound to provide for them we ought to leave them enough to preserve that life which we gave them but beyond necessaries is no man bound by the Law of Nature to provide for them Neither are we bound to nourish our Sons only but those also that proceed from them yea even to the third generation according to Justinian and that for humanity sake Neither should our Charity rest here but it should extend it self even unto those who issue out of our Loins and are born unto us by strange women if they cannot otherwise be maintained V. In Succession the Children of the deceased are to be preferred before their Parents and why Children ought also to nourish their Parents not only in obedience to many wholsome Laws but in common gratitude like the Storks who when their Parents are spent with age feed them and being faint receive them on their backs and carry them from place to place And therefore in fostering those who when we were Children fostered us we are Proverbially said To imitate the Stork †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Reverence to Parents and sustenance to Children Nic. 8. Solon is highly commended for setting a brand of infamy upon those that did it not Yet is not this so ordinary as that which we have said of Children Because Children when they are born bring nothing into the world with them whereby to live and have probably a longer time to live here than their Parents have And as honour and obedience is properly due to Parents and not to Children So is Sustentation due rather to Children than to Parents And thus is Lucian to be understood when he tells us That it is more agreeable to the dictates of Nature for
Baronies that are held by Homage or Fealty to the chief Lord. This is the succession of the Kingdom of England As in the Counties of Artoise Champane Tolouse and Brittany This was the order of succession prescribed unto the Dutchy of Mantua by the Emperour Sigismund Anno 1432. and by Charles the Fifth Emperour and King of Spain to Philip the Second in his Kingdoms and Principalities But the proof of this Lineal Succession though there were no Law or Example to guide us may be taken from the order that is observed in Publick Assemblies For if in that order regard be had to lineal descents it will be a sign that the hopes conceived of the children of the deceased was by Law quickened into a Just Right so that it may well pass from the dead to the living This is that Lineal Cognatical succession wherein women and those that are born of them are not excluded but only post-pon'd in the same line So that recourse is had unto them in case the Males that are nearer or that those born from Males in an equal line should fail The ground whereof as it differs from an hereditary succession is the hopes which the people conceive of them who are nearest related to the Prince in possession and who have the justest hopes to succeed him that they have Educations answerable to their high birth and hopes such are the Children of those Parents who had they lived must have succeeded XXIII The lineal succession of the Males only Agnatical succession There is likewise another lineal succession of Males only which is called Agnatical which differs from the Cognatical in that it excludes Females and admits only of Males which from the Kingdom of France takes its rise and is therefore called the French succession Though the Kingdom of Israel seems to have been thus setled 2 Chron. 13.5 And the chief reason of this is to debar Strangers from the Crown by marrying the Kings Daughters In both these lineal successions all are admitted that are any wayes allyed though in degrees never so remote from the last possessor whilst they can derive themselves from the first King And in some places where the Agnatical Succession is deficient recourse is had to the Cognatical Nay and this latter is sometimes preferred before the former as in Aethiopia where the Kings Sisters Son did alwayes succeed him which Bede records also of the Picts where the kindred of the women were preferred to the succession The like we read of the Indians So Tacitus of the Germans That their Kings gave the greatest honour to their Sisters Son as being nearest in blood to them XXIV A succession that alwayes respects the proximity to the first King Livy lib. 29. Vand. l. 1. Other manner of successions may be introduced either by the people or at the pleasure of him who holds the Kingdom in a patrimonial right so that he may alienate it For he may so settle the succession that they that are next to himself at all times may be preferred before others as it was anciently among the Numidians where for the like cause the Unkle did succeed in the Kingdom before the Children of the last King This Custome was introduced in Africk by the Testament of Gizerick wherein amongst many other things he chargeth his Vandals That they should admit of him only into the Throne that should be at any time nâ—arest unto himself in a right Masculine line and of them still the eldest and then the next in order wherein he regarded not the present possessor but the first Acquisitor Which order whether Gizerick himself learnt from the Africans among whom it had been long observed or whether they learnt it from some of our Northern Nations is a question The like was of old in use among the happy Arabians as may be gathered out of Strabo And the later Historians report the same of Taurica Chersonesus Lib. 16. Neither is it so long since the Kings of Fesse and Morocco did the like Livy speaking of Massinissa saith That whilst he made War in Spain for the Carthaginians his Father dying the Kingdom fell according to the custome of the Numidians unto Desalces the deceased Kings Brother The same Custome is in force throughout all Mauritania as Mariana testifies and in the Kingdom of Mexico and Peru as the Histories of those parts record Now the same if in doubt is to be observed in things committed to trust if it be left to the Family And this agrees best with the Roman Laws though some Interpreters do wrest it otherwise These things premised it will be no hard matter to resolve all Controversies which do arise concerning the Right of Kingdoms which the different opinions of Lawyers have made so intricate XXV Whether the Son may be so exheredated that he shall not succeed in his Fathers Kingdom And in the first place this Question ariseth Whether a Father may exheredate his Son so that he shall not succeed in his Kingdom Where we must distinguish between Patrimonial Kingdoms which are Alienable and such as are not Alienable In the former there is no doubt but that exheredation is lawful for such Kingdoms differ nothing from other Goods and therefore in such places where by Law or Custome Exheredation is in force it is practicable even in the case of Kingdoms yea though there were no Law or Custome to warrant it yet naturally it is lawful for a Father to exclude his Son from all but bare Alimony yea and from that also if he have committed any Crime worthy of death He may if the Kingdom be Patrimonial or have been otherwise notoriously wicked and have of his own whereby otherwise to subsist Thus was Reuben punished by Jacob with the loss of his Birth-right and Adonija by David with the loss of his Kingdom For David's Kingdom was in a manner Patrimonial though not by the right of War yet by special donation from God himself Now where the Kingdom is Patrimonial the King may nominate which of his Sons he will to succeed him as the Kings of Mexico now do Nay if the eldest Son have provoked his Father by any hainous crime and there be no manifest sign that he hath forgiven him he shall be as one tacitely exheredated Otherwise in Kingdoms nor alienable But it is otherwise in Kingdoms not alienable though they be hereditary because the people are best pleased that the Kingdom shall descend in an hereditary way especially from an Intestate Much less shall it be in the power of a Father to exheredate his Son where the Kingdom is to pass in a lineal descent For there without any imitation of an Inheritance it was agreed in its first Institution That the Kingdom should by the peoples gift pass to every person of the Royal Family in such order as was then prescrib'd XXVI Whether a King may renounce his Kingdom In a Kingdom meerly hereditary he may but nâ— in a Lineal
such a limited time as mostly some of these are inserted It will from hence sufficiently appear that the League is real Such was the League made between the Romans and Philip King of Macedon which when his Son Perseus denyed to bind him was the cause of the War ensuing There are also other words that may serve to prove a League to be real yea and sometimes the matter it self may administer ground for probable conjectures And where the conjectures are equally probable there we may conclude That those Leagues which are favourable and equal shall be accounted real those that are grievous and hateful Personal Leagues made for the preservation of mutual Peace or Commerce are favourable those that are made for War are not always odious as some hold but if they are made for mutual defence they draw near to such as are favourable But those that are for a Social War do too nearly approach to those that are burthensome Besides in those that are made for any War great respect is to be had to the Prudence and Justice of those with whom we contract That they be such as will not engage us in a War either unjustly or too rashly when it may be avoided And as to that saying That Societies are dissolved by Death I alledge it not here for this appertaineth to Private Societies and is determinable by the Civil Law And therefore whether the Fidenates Latines Etrusians and Sabines did right or wrong in departing from their League upon the death of Romulus Tullus Ancus Priscus and Servius cannot rightly be determined by us because the words of the League it self are not extant The Queen of Scots being deposed by the Estates of the Realm and imprisoned in England and her Son an Infant solemnly Crowned The French refused to own any but the deposed Queen saying That the ancient League between her and the French King was to be observed Whereunto the English replyed That she being deposed and her young Son inaugurate the French King ought by that League to defend him for that ancient League was not contracted betwixt the persons but betwixt the Kingdoms of France and Scotland Which was plain by the very words of that League Camden Eliz. anno 1572. wherein it was provided That if the Crown of Scotland should be at any time controverted the French King should defend him to whom the Estates of Scotland should adjudge it Whereunto not much different is that controversie in Justin Whether the Cities of the Medes which had been Tributary did change their condition with the change of their Empire For it is to be considered Whether in that Convention they had committed themselves to the protection of the Medes And here we must note that Bodine's Argument is by no means to be admitted That the Leagues of Princes bind not their Successors because the obligatory power of an Oath dyes with him that takes it For an Oath sometimes binds the person only and yet may the Promise made and confirmed by that Oath bind the Heir Neither is it altogether true that all Leagues are grounded upon Oaths for usually there is power enough in the very Promise to bind though for the more reverence those Promises are confirmed by Oaths Publius Valerius being Consul the people of Rome bound themselves by Oath to assemble at the Summons of the Consul he dying and Lucius Quintus Cincinnatus succeeding him the Tribunes of the people began to cavil alledging that Valerius being dead the people were freed from that Oath Whereupon Livy gives his Judgement thus That general contempt of the Gods that now rageth had not then corrupted that age Neither were men then so audacious as to give unto their Oaths what Interpretation they pleased and thereunto to adapt their Laws But they chuse rather to compose their manners unto that whereunto they had so religiously sworn XVII A League holds with a King though expelled his Kingdom Surely a League made with a King is valid though that King or his Successor be expelled his Kingdom by his own Subjects For though he hath lost his possession yet doubtless the Right and Title to the Kingdom remains in him according to that of Lucian concerning the Roman Senate Non unquam perdidit Ordo Mutata sua jura loco Though the Imperial Seat be changed quite Yet must the Empire still retain its right XVIII But not so with an Usurper But on the other side in case a War be made against him that usurps the Kingdom with the consent of the true King or if it be made against him that oppresseth a free people before he hath been established by their general and free consent it shall not be interpreted as a breach of any former league Because these men though they have got possession yet they have no Right to what they hold And therefore the Emperour Justinian denyed that he had broken the League made between him and Gizerich by making War against Gelimer who had at once deprived the lawful King Ilderichus both of his Liberty and his Kingdom Thus doth Titus Quintius also plead against Nabis on the behalf of the Romans We made no League or Confederacy with thee but with Pelops the just and lawful King of Sparta Now in Leagues these qualities of a King a Successor and the like are favourably to be interpreted as being properly their Right whereas the cause of an Usurper is odious XIX A Promise made to him that shall perform such an act if more do it together to whom is the Promise due Another Question we find handled of old by Chrysippus namely Whether a Reward promised to him that shall first arrive at such a place is to be given to both if both arrive together or else to neither Where we must observe that the word First is ambiguous For either it signifies one that preceeds all the rest or one before whom none But because the Rewards due to vertue are to be construed with favour both of them that shall arrive together shall share the Reward between them Although the Liberality of Scipio Caesar Julian and others was more honourable who to each of them that first scaled the Walls if more than one did it together gave the entire Reward promised And let these suffice to be said concerning the proper and improper signification of words XX. A conjecture offering it self either extends the signification and when There is also another way of interpreting by conjectures beyond the signification of the words wherein the Promise is contained And this also is two-fold either by extending them farther than the words signifie or by restraining them But that Interpretation which restrains the signification of words is easie but that which enlargeth them more difficult For as in all humane things the want of any one cause is enough to make all the rest ineffectual But to produce an effect all the causes must concur so also in this case of obligation that conjecture that shall
extend the Obligation is not rashly to be admitted But with much more caution than in the case before mentioned where we admit of words in their largest signification though not much in use For here we raise our conjectures without regard had to the words promising which cannot introduce an obligation unless the Conjectures be very certain for here a parity of Reason is not sufficient unless it be the very same Neither is the same Reason at all times sufficient because as I said before Reason doth often so move us that to shew our own freedome our will is of it self a sufficient cause of our Promises without any other Reason Now to justifie such an extended conjecture beyond the words of the Promise it is necessary that it should plainly appear That the Reason under which that case which we would comprehend falls was the only and most efficacious cause which moved the Promiser and that that Reason was in its generality so considered by him because otherwise the Promise would prove either unjust or unprofitable As for Example An agreement that such a place should not be surrounded with walls being made at such a time when no other Fortifications were in use should doubtless extend to all Muniments though but of Earth in case it do appear that the only reason why Walls were prohibited was That that place should not be fortified Another Example is usually brought of a man who believing his Wife to be with Child disposeth his Estate to such a man in case that Child should dye which by all probable conjectures should be extended to this sense Or if such a Child should not be born For certain it is That the Will of the Testator was moved with this only consideration That then he should have no Child of his own to inherit it This case we shall find not among the Lawyers only Lib. 1 2. de Orat. Bruto pâ—o Caecina but in Cicero and in Valerius Maximus Cicero in his Oration for Caecina pleads this case thus What Is this sufficiently provided for in words No. What then was of force to do it The Will Which if it could be understood by silence we should have no need of Words But because that cannot be therefore were words invented but such as should not hinder the Will but declare it And a little after in the same Oration he adds Idem jus esse ubi perspicitur una atque eadem causa aequitatis Where there manifestly appeared but one and the same cause of Equity i. e. where there was the same solitary cause moving It may be presumed there is also one and the same Right Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another and he adds this reason Quia idem valent sponsalia quod Nuptiae Because saith he such Espousals are equal to Marriages Exod. 21 28 35. So likewise in the Mosaical Law under the name of Oxen are all gentle Beasts comprehended so is every Pool or Pond under the name of a Well So likewise an Injunction though it run in this form Vnde me vi dejeceris hominibus coactis armatisve Whence thou hast thrust me out by force and arms takes place also against all manner of force that threatens our life and limbs For that which is usually done by armed men if by any other counsels or means we are brought into the same danger the Law affords us the same Right and Remedy Quintilian the Father in one of his Declamations brings in this Example Murther doth usually signifie the effusion of humane blood by the Sword But if a man be killed by any other means we have recourse to the same Law For if a man shall fall among Thieves or if he be thrown into a River and there drowned or if he be tumbled headlong from an high Precipice his death shall be revenged by the same Law as if he had been killed by the Sword The like Argument we find used by Isaeus concerning the Inheritance of Pyrrhus where because by the Laws of Athens a Father having no Son could not make his Testament if his Daughter were unwilling he infers that neither had he without her consent the power of adopting one XXI Whether a Command given for one thing be fulfilled in doing another as profitable if not more And from hence that famous Question in Gellius may easily be answered concerning a Command given by our Superiour Whether it may be fulfilled though not by the same yet by another thing equally profitable or haply more than that which was commanded Servants saith Quintilian act some things more freely out of a good mind and even our Slaves bought with our Money do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded Which may be done if it appear That what was so particularly described but only under some general consideration which might also be otherwise obtained But if that do not sufficiently appear Lib. 1. c. 13. then we are to follow Gellius his advice in that place For the Authority of a General would quickly be contemned if what he commands should be disputed and not obeyed XXII Or restrained and that either by reason of some defect in the Will That Interpretation that restraineth the sence from what the signification of the words wherein the Promise is contained will bear is derived either from an originary defect of the Will or from the repugnancy of some emergent case with the Will The originary defect of the Will is understood either from some absurdity which would otherwise evidently ensue or from failing of the main Reason which alone did fully and effectually move the Will or from a defect of matter The first whereof is grounded upon this That no man is to be believed to will things that are absurd XXIII Or when the main Reason ceaseth The Second is grounded on this That what is contained in the Promise whereunto such a Reason is added or where it is plainly understood is not considered barely or simply but as it falls under that Reason XXIV Or when there is a defect in the matter The Third is grounded on this That the matter so restrained is always observed to be in the mind of him that promiseth although the words of the Promiser do admit of a large signification XXV An observation concerning the last recited Conjectures But as concerning the Reason that moves the Will we must observe That under it are comprehended not only things actually existing but sometimes things that morally considered may be which when it takes place no restriction ought to be admitted As when it is in any League provided That no Army or Fleet shall be sent to such a place they ought not to be led thither though there be no intention thereby to do harm because in that agreement not so much the present damage as all future dangers whatsoever are regarded
qualemcunque Mortuum terra condi fas sit Because it was always thought an Act of Piety to inter all dead Bodies whosesoever they were Wherefore according to the exposition of the Hebrew Doctors The High Priest though otherwise forbidden to be present at any Funeral yet notwithstanding if a man were found dead and unburied he was even himself commanded to bury him The very same was enjoined by the Pontificial Law among the Romans as Servius notes Christians have so high an esteem of this duty that for this cause as well as for the relief of the Poor and the redemption of Captives they have thought it lawful to melt down their Consecrated Plate and to sell it There are also Examples that may be brought for the contrary opinion but such as are by the Judgement of the most and best men condemned Hunc oro defende Furorem saith Virgil Which Servius thus expounds O keep me from this rage I pray i. e. from that Malice which rageth even after Death The like we may read of in Claudian Hominemque cruentus Exuit teneum caesis invidit arenam Bloody are they wanting humanity Who to the slain a little dust deny Wherewith agrees that of Diodorus Siculus Ferinum est bellum quod cum mortuis qui ejusdem sunt Naturae geritur To wage War with the Dead who were lately of the same Nature with our selves is bruitish Cruelty IV. Whether to such as are notoriously wicked But yet as concerning such notorious Malefactors as have deserved Death and according unto Law have suffered there were some cause to doubt But that the Divine Law given to the Hebrews which as it was our guide and directrix to all other Vertues so is it to this of Humanity also did command That such as were hanged on the Gallows which was a Death very ignominious among them as appears Numb 25.4 and Deut. 21.23 should be Buried the same day Whence Josephus affirms 2 Sam. 21.26 That so great was the care that the Jews took of burials that they took down the Bodies even of those that were publickly Executed before the Sun went down and bequeathed them to the Earth And as others of the Jewish Interpreters add This they did in reverence only to the Image of God whereunto Man was created Homer records That Aegysthus who to the Sin of Adultery had accumulated another Sin Odyss 3. even that of the Kings Murther being himself afterwards slain was notwithstanding by Orestes the slain Kings Son buried Yea and among the Romans Vlpian will inform us That the Bodies of such as were put to Death as Malefactors could not be denyed their Kinsmen if they required them yea they were to be given to any body else that would ask them as Paulus understood it Neither did those cruel Emperours Dioclesian and Maximilian forbid Burial to any though guilty of the greatest crimes and accordingly punished Hos Sepulturae tradi non vetamus was the answer of both of them We do not forbid these to be buried The like Custome there was among the Romans as Philo testifies against Flaccus Yet Examples we have also of some who have been cast out unburied But this is more frequently done in Civil than in Foreign Wars And though it be a Custome among us to hang notoriours offenders in Chains to deter others yet whether this be commendable or not The hanging men in chains whether commendable is much disputed not only by Politicians but Divines On the contrary we find them highly commended who have themselves caused those Bodies to be buried which they would not permit others to bury As Pausanias King of the Lacedaemonians who being provoked by the Aegeneti to retaliate what the Persians had before done against Leonides rejected their Counsel as unworthy of him or indeed the name of a Grecian Papinius brings in Theseus bespeaking Creon thus Vade atra daturus Supplicia extremique tamen secure Sepulchri Torments extreme go and endure Yet of a Sepulchre be thou secure Josephus records it of the Pharisees Ant. l. 13. c. 24. That they gave a most sumptuous Funeral to their King Alexander Jannaeus notwithstanding his barbarous cruelty exercised over the Bodies of his dead Countrey-men And though God hath sometimes punished some persons with the loss of Burial as he did Jehoiakim and Jezebel Jer. 22.19 yet this he did by his own most Sovereign Power which is not bound up by any Law but that only of his own Will And whereas David kept the head of Goliah 1 King 21.23 to shew as a Monument of his Victory it was done upon a Stranger a contemner of the true God And under that Law where by the word Neighbour none were included but the Hebrews only V. Whether to those that killed themselves There remains yet one thing worthy our observation concerning the Burial of the dead namely That the Jews as zealous as they were for this duty yet would not vouchsafe this Honour to those who killed themselves And no marvel as Josephus well observes †Ant. lih 3. c. 25. since no other punishment can possibly be inflicted upon those who esteem Death it self to be none The Milesian Virgins as Plutarch reports were all at once surprized with a violent fit of Melancholy and in an humour would needs dye * A. Gell. l. 15. c. 10. Plut. de Mul. virt no man knowing the cause why Many of them notwithstanding all perswasions and care taken of them did strangle themselves and others daily attempting to do the like were prevented At length by the advice of a grave Senator The Milesian Virgins it was enacted That all that were found so hanged should be stript naked and with the same cord being first dragg'd through the streets hanged in the Market place and exposed to publick view The fear of shame was stronger than the fear of death After this Law made none was ever found so regardless of her Honour as to attempt such an Act. Servius upon the twelfth of Virgil's Aeneads tells us That it was provided by the Roman Laws Vt qui laqueo vitam finisset insepultus abjiceretur That whosoever hanged himself should be cast out unburied And very frequent it is among most Nations Nic. 55. to inflict some brand of Infamy upon such as kill themselves as Aristotle notes Which place Andronicus Rhodius expounding saith That they were prohibited Burial Which Law Dion Chrysostome highly commends among many others enacted by Demonassa Queen of Cyprus Aesch in Clesephontem At Athens in the times of Aeschines he that killed himself had his Hand buried apart from his Body Neither is it to the purpose to object with Homer Aeschylu◠and others that the Dead feel nothing either of pain or shame For no malefactor is put to death simply because he hath sinned but in regard that his death strikes a terrour into others Quod mortuis accidit à vivis metuitur What happens to the
dead affrights the living and consequently restrains them from sinning in the same kind which is enough to justifie the punishment Yet is it worthy to be observed That though Plato were somewhat favourable in his Sentence on such as killed themselves yet doth he not think fit to leave them altogether unpunished What expiation saith he or what manner of Interment they should have that kill themselves God knows But then he goes on and gives his own opinion thus Let them be buried saith he in some solitary and desart place where none was ever buried but themselves and let there be no Statue Monument or Inscription set over them that their Bodies Names and Memories may rot together The Platonists do excellently dispute against the Stoicks and against all such as hold That a man may for the avoiding either of some present slavery or the violent assault of some dolorous and incurable disease or out of hopes of glory for a good cause undergo a voluntary death by maintaining that the Soul is to be kept in the safe custody of the Body until it be unavoidably required from us by him that gave it Much to this purpose may be read in Plotinus Olympiodorus and Macrobius upon the Dream of Scipio Aristotle accounted such as killed themselves to be weak and effeminate Fortis viri est mala perpeti It is the part of a valiant man to suffer as well as to act couragiously Seneca Non est virile terga Fortunae dare It is but a weak and lazy refuge by a voluntary death to avoid pain or shame according to that of the Poet Rebus in adversis facile est contemnere vitam Fortiter ille facit qui miser esse potest Each Coward whilest distrest can life disdain He valiant is who dares encounter pain Brutus condemned the fact of Cato though afterwards he wrote after the same Copy It is neither pious nor indeed manly saith he to turn our backs upon Fortune and to fly away from those imminent calamities which we should magnanimously bear Expectandus est vitae exitus quem natura decrevit What manner of death Nature hath decreed for us we must with patience expect Epist 70. Mart. saith Seneca It is no part of Valour or Fortitude to destroy our selves but a madness rather Nonne furor est nè moriare mori Strabo l. 15. It was well observed by Megasthenes That the fact of Calanus was by the wisest among the Indians condemned it being contrary to their Laws for any man through impatience to kill himself Neither did the Persians approve of it Witness that of King Darius in Curtius Lib. 5. Alieno scelere quam meo mori malo I had rather perish by another mans crime than by mine own No nor the Arabians as may be collected from that of Job Who wait for death but it cometh not Job 3.21 and dig for it more than for hid Treasures And therefore the Hebrews do render this word mori To dye by the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To be let go or To be dismist as may appear not only by Luke 2.29 Lord now lettest thou thy Servant depart in peace but by the Greek Version of that place in Gen. 15.2 and that in Numb 20. towards the latter end Which manner of Speech is familiar among the Greeks also as Themistius testifies of them in his Book De Anima They say of the Soul of him that dyeth saith he it is dismist and death it self they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A dismission Plutarch also in his Book of Consolation hath the same expression Donec Deus ipse nos dimittat Vntil God himself dismiss us It seems that the Jews did somewhat vary in their opinions concerning this matter as appears by Josephus where he records and seems to commend the Generosity of Phasacles Ant. l. 14. c. 25. who knowing that he was adjudged to death which he feared not scorning to fall at the command of an Enemy seeing that he could not kill himself with his own Sword being bound dasht his Head with all the force he had against a Stone and so perished Thus the Jews plead to Petronius as Philo records We say they mix our own Bloods by voluntary deaths for fear lest whilest we strive at two things i. e. to reverence our Emperour and yet to observe our Divine Law we should incur the displeasure of God Which danger we may avoid if by contemning this miserable Life we embrace a voluntary Death Some of these Jews would admit of one only case wherein it was lawful for a man to kill himself namely rather than live to be a perpetual reproach and scorn to the Enemies of God For seeing the Power over our lives is not in our selves but in God as Josephus rightly instructs his Countrey-men They presume that it is the will of God that they should put an end to that reproach by a voluntary death And hither they refer the Examples of Sampson who seeing the True Religion in and through him to be held in contempt chose rather to dye than that God by him should be dishonoured And that also of Saul who fell on his own Sword that so he might not be insulted over by such as were Gods and his Enemies For the Jews held 1 Sam. 31.4 That immediately after the Ghost of Samuel had foretold his Death he repented Umbra Samuelis and that although he knew he should dye in case he did fight yet rather than he would betray his Countrey and the Law of God into the hands of his Enemies he refused not to fight Therein meriting eternal praise by the Testimony of David And hence it was that he so highly commends the men of Jabesh Gilead for their Piety in bestowing an Honourable Interment upon Saul A third Example we have in Razes a Senator of Jerusalem in the History of the Maccabees 2 Mac. 14.37 Infinite Examples we may find in our Ecclesiastical Histories of such who lest they should be enforced by Torments to abjure their Religion have killed themselves and of Virgins who to preserve their Chastity have cast themselves into Rivers whom notwithstanding the Church hath honoured with the Crown of Martyrdom St. Ambrose doth highly extol them for it and St. Hierome on the first of Jonas makes an exception of this only case from that general Rule For no Persecution can justifie the killing of our selves saith he but where our Chastity is endangered But St. Augustine seems to be of another mind For though he will not derogate from the Authority of the Church De Civit. Dei lib. 1. c. 26. Epist 61. ad Dulc. which haply might be led thereunto by some Divine Tradition or those Virgins guided by some Divine Instinct yet would he not have any Christian draw this into a Precedent For saith he no man must presume to offer up his own Son in Sacrifice because Abraham did it in obedience
doth even the Ballance and which he there calls commutative But these require yet a more strict disquisition I say then that every punishment respects the good either of the person punished or of the person injured or of every man indistinctly The first of these aims at the reformation of the person punished and is called by Philosophers sometimes reformation sometimes satisfaction and sometimes admonition Paulus the Lawyer calls it a punishment ordained for reformation and Plato to teach us prudence Plutarch the Souls Emperick whereby she is amended and made better as by Physick which works by contraries For because all humane acts especially if they be frequent and deliberate do beget a proneness in nature unto the same which at length turns into a habit therefore if such an act be vicious we must as soon as we can take away all allurements and provocations thereunto which cannot by any means more properly be done than by allaying the sweetness of the sin by the sharpness of the punishment The Platonists as Apuleius testifies hold That there is no punishment so severe as to go unpunished Ann. 3. And Tacitus will instruct us That the Corrupter and the corrupted the sick and the distempered mind is to be restrained with no gentler medicines than are those very lusts that inflame them And therefore as a tender Mother imbitters the Nipple when she weans her Infant Sen. de ira lib. 2. or as a skilful Chirurgion lanceth burns and scarifies his Patient whom he intends to cure so it is the duty of a prudent Magistrate corrigendo mederi to reclaim and reform a Malefactor by sharp but seasonable punishments VII 1. To the offender Now the punishment that serves to this end may lawfully be inflicted by any man that is prudent and judicious and not guilty of the same or of the like fault especially if it be verbal only as will appear by that in Plautus Amicum castigare ob meritam noxiam Immune est facinus verum in aetate utile A Friend to chide for what unjust appears Is blameless sure but most in men of years But if it be by stripes or any other forceable means then is it not equally lawful for every man yet doth not this difference between persons lawfully or unlawfully punishing arise from the Law of nature neither indeed could it but that reason peculiarly commends the free exercise of this right to parents over their children because they are so dearly affected toward them but from the positive Laws of men which to preserve love among neighbours and to prevent strife and discord do restrain this common duty and confine it to the nearest of kinn as appears as well by the Codes of Justinian under this title de emendatione propinquorum as elsewhere Apposite hereunto is that of Xenophon to his Soldiers If I shall strike any man for his good I confess I thereby deserve a punishment but no other than parents do from their children or masters from their schollars for even Physicians sometimes lance cup and scarify their Patients when otherwise they cannot cure them God himself saith Lactantius commands us to keep a strict hand over our children that is to chastise them as often as they transgress lest by overmuch fondness and indulgence they prove ill nurtured and contract unto themselves vitious habits But this kind of punishment never reacheth unto death because death takes away all hopes of reformation unless it be by way of reduction whereby negatives are reduced to their opposite positives Mark 14.21 as in that speech of our Saviours It had been better for some that they had never been born that is it had been less evil for them the like may be said of incorrigible sinners it were better for them that is less evil for them to dye than to live De Ira. c. 5. interesse pereuntium ut pereant Jamblichus And of such it is that Seneca meant when he said that sometimes it is good for them that dye that they do dye As when a tumour or impostume is grown to suppuration better it is to burn an hole thereby to discharge part of that impostumated matter than longer to imprison it so for a man that is past hopes and desperately wicked it is better for him to dye than to live for as Plutarch speaks of such they are noxious to others but most to themselves so Galen when he had said that some men ought to be punished by death first to prevent the mischiefs they would do were they suffered to live next that by their death others may be forewarned adds in the last place that it is expedient even for themselves to dye being so wholly corrupted in mind and mannâ—rs that it is not possible to reclaim them Some there are who think that St. John spake of such men when he said that there was a sin unto death 1 John 5.16 1 John 5.16 And St. Chrysostome speaking of such saith that they are like men irrecoverably sick so Julian of Constantius seeing that there are two kinds of offences some that are corrigible as not despising the means of their cure others of men desperately wicked and incorrigible for these the Laws have found out a remedy by death to put an end to their wickedness not so much for their own as for the benefit of others But because no arguments can be brought to prove this but what are fallacious therefore in very charity we are not rashly to judge any mans case to be desperate and therefore this kind of punishment I mean by death is seldome inflicted to this end namely for emendation VIII To him against whom the offence is committed Some resemblance of this there is in some Beasts Pliny records it of the Lyon that in poenam Adulterae consurgit he riseth up to revenge himself of his Adulteress Nat. Hist. 8. 16. Three ways to provide for ones safety against him that hath injur'd us The benefit that accrues by punishment unto him against whom the offence is committed consists in this that it prevents the like mischief either by the same person or by others Gellius out of Taurus describes this kind of punishment thus when the authority or dignity of the person against whom the offence is committed is to be upheld and maintained then is the punishment necessary lest if it go unpunished that authority be held in contempt and the honour lost Now what is there said concerning authority is also to be understood of liberty or of any thing else wherein we may claim a just right for he that suffers one injury to go unpunished doth but invite another wherefore Tacitus concerning one of the Roman Emperours said well consuleret securitati justâ ultione he might have better provided for his own safety by a just revenge Now to the end that a man may secure himself against him that hath formerly injured him there are three means First By putting him to death that
did the wrong Secondly By taking away from him the power to do wrong Or Thirdly By deterring him from doing any further wrong by the sharpness of his punishment which is conjoyned with reformation whereof we have just now already discourst But to be secured from others by the punishment of him who hath offended it is necessary that the said punishment be publick and conspicuous which appertains to exemplary punishments whereof more anon Now if our desire of revenge though private be directed to these ends only and can be impaled within the bounds of equity if we look at the bare Law of nature first abstracted from divine and humane Laws and from those other occurrents which do not necessarily happen to the thing it is not unlawful whether it be done by the person injured or by another seeing it is natural for one man to help another De Invent. lib. 2. In which sense may that of Cicero be admitted where he defines the Law of nature to be that which consists not in opinion or custom but in that which nature it self suggests unto us where also amongst other examples he places this of vindication which he there opposeth to grace or pardon And lest any man should question the extent of the word he defines it to be that whereby we defend both our selves and those who ought to be dear unto us from force and calumny by a just revenge or whereby we punish offences Mithridates in that Oration which Justin extracts out of Trogus speaks thus Against Thieves all men ought to draw their swords if not for their safety yet for their revenge which Plutarch in the life of Aratus calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law of revenge By this natural Law Sampson justifies himself against the Philistines Judg. 15.3.7.11 when they had provoked him by taking away his wife and giving her to another Now saith he shall I be more blameless than they though I do them a displeasure for he concluded it to be just for him to injure them who had first provoked him by so great an injury and according to this rule he pleads his own cause and defends himself for being demanded by the men of Judah what he had done against the Philistines to provoke them he answered as they have done to me so have I done to them v. 11. Plut. Rom. ad finem When the Laurentines delivered up those that killed Tatius to Romulus to be punished he set them at liberty saying that blood was to be expiated with blood intimating that because Tatius had before slain their Embassadors or at least connived at it it was but just that blood should have blood for as Belisarius in Procopius notes it is but natural to account him as mine enemy who hath by an assault wounded me Thus likewise the Plateans in Thucydides plead for themselves in the like case we have deservedly punished them say they for by that Law that is in force amongst all men it is lawful to be revenged on those that first make war upon us Vand. 1. Demosthenes in his Oration against Aristocrates saith that this Law is common amongst all men to inforce satisfaction from them that have forceably taken away our goods from us and Jugurtha in Salust having shewed how Asdrubal had laid in wait for his life adds that the people of Rome did that which was neither just nor right in forbidding him that rigbt which the Law of Nations allowed him that is a just revenge and Aristides the Orator proves it by the authorities both of Poets Lawyers Proverbs and Orators that a revenge may be lawfully taken upon such as have first injured us St. Ambrose commends the Maccabees for revenging the blood of their innocent Brethren though it were on the Sabboth and against the Jews who bitterly complained against the Christians for burning their Churches he pleads thus if I should argue according to the Law of Nations I should recount how many Christian Churches the Jews burnt in the time of the Emperour Julian thereby concluding that to requite like for like was agreeable to the law of Nations thus did Jonathan and his associates revenge the death of their Brother John upon the Nabathits as they were celebrating some great Nuptials upon whom he unexpectedly fell and slew both men women and children as Josephus informs us But because men are too partial Judges in their own causes Ant. l. 13. c. 1. therefore that liberty which nature did at first indulge unto every man in vindicating his own quarrel is justly taken away and Judges appointed to determine all controversies between man and man and to help those to right who suffer wrong Thus Demosthenes pleads against Conon As for these injuries it was thought fit by our Ancestors that they should receive their punishment from the Laws and not from the rage and violence of every mans will So doth Quintillian the compensating of an injury is not only repugnant to the Law Laws and Magistrates ordained to punish offenders and why but unto peace for there are Laws Judges and Courts whereunto any man may appeal unless there be any that are ashamed to be vindicated by the Law So likewise the Emperours Honorius and Theodosius for this very cause are Tribunals erected and the defence of the publick Laws instituted lest any man should arrogate to himself the liberty to revenge his own quarrels So King Theodorick from hence do the Laws challenge from us a sacred reverence that no revenge may be taken by our own hand nor any thing done against our enemies by the suddain impulse of our own passions For how inconvenient this would be is evident by that plea of Tindarus against Orestes This if thou sufferest Menelau ' I ask If th' angry wife her husband's blood should spill And in revenge the son his Mother kill And if her blood cannot be washt away Without fresh blood where would these mischiefs stay Which words of Euripides being full of Prudence do abundantly supply both Philosophers and Orators with matter of Argument Maximus Tyrius in his dissertation concerning the retaliating of injuries speaks thus A good man will neither do an injury nor suffer one not do one I mean willingly nor suffer one because he magnanimously slights all that are done unto him If to infer an injury be wicked surely to return one is somewhat like it for although he that wrongs another in that he gives the first offence commits the greater fault yet he that requites that injury because he was pleased with revenge is alike wicked for if he that doth his neighbour wrong do evil surely he that returns that evil is not the less evil because he doth it in revenge And a little after quis erit unquam injuriarum finis c. if it be granted saith he that a good man having received an injury may revenge it then may he that suffers that revenge as justly return it for on both
been already said we may collect how unsafe it is for a Christian being a private man to take revenge upon any wicked man especially by death either for his own or for the publick good although it be sometimes permitted by the Law of Nations as we have already declared * See Book 1. Chap. 3. Sect. 3. and this Ch. Sect. 8. And therefore it is a laudable custom among some people for such as have the supreme power to grant Commissions to such as put out to Sea to persecute Pirates wheresoever they find them whereof they may make use as occasions serve to shew if need be that they did it not upon any private malice but in obedience to their Princes Commands XV. Or to accuse any voluntarily Not much unlike unto this is another custom which I find in some Countries where every man that will is not permitted to prefer a Criminal Accusation against another but some particular men are chosen and thereunto commissionated by publick Authority so that no private man can attempt any thing that tends to the effusion of humane blood but such only as are bound to do it by virtue of their Office And to this hath that Canon of the Eliberine Council respect which denies the Communion to any man that shall by his private suggestion or accusation occasion the death or proscription of another XVI Or to affect the Office of a Judge in capital matters And from what hath been already said we may collect also how unsafe and indecent it is for a man truly Christian rashly to thrust himself into such publick Offices as to have it in their power to sentence men to death or to conceit and to publish himself to be fit that such a right of life and death should be committed unto him as to the most excellent of all others and as unto a God amongst men For surely our Blessed Saviours advice namely To take heed as in a case of danger how we pass sentence upon others because look Matth. 7.1 what measure we mete unto others we must expect from God in like cases doth chiefly appertain unto this kind of Judgment XVII Whether those Humane Laws that permit the killing of some men do give them a true right before God or only an impunity amongst men Another notable Question doth sometimes arise namely Whether those humane Laws which permit the killing of some men do justifie it before God or whether they grant only an impunity amongst men This latter opinion was much savoured by Covarruvia and Fortunius but on the contrary so distasted by Vasquius that he calls it abominable Without doubt the Laws may do both in some Cases but whether they will do so or not may be gathered partly from the words of the Law and partly from the matter For if the Laws have regard to the grief and sorrow of the Offender it remits the punishment but not the sin as in the Case of an Husband that kills his adulterous Wife or of the Wife her adulterous Husband A Wife taken in Adultery might by the Law of the Lombards be killed by her own Husband Grat. Can. 33. Q. 2. inter haec Lib. de Civit. Dei Grat. c. 23. q. 8. quicunque but not so by the Roman Laws yet if he did kill his adulterous Wife being so taken he was excused and pardoned non à culpa vel à peccato licet à poena civili not altogether from the sin though from the punishment due by the Civil Law For as St Augustin observes If he that killeth or woundeth a Malefactor be a Magistrate he is God's Minister and not to be blamed for it but if he be a private person he shall be judged as an Homicide because he presumes to usurp that authority which is not given him by God But if the Law respect some ensuing mischief that is likely to happen by the delaying of the punishment then it is supposed to transferr publick Authority to every private man who therein is reputed a Magistrate And of this kind is that Law in the Codes of Justinian under this Title Quando liceat unicuique sine Judice c. When it is lawful for any private man to revenge himself or the publick worship without a Judge In which Law licence is given unto every man by severe punishments to repress Souldiers when they are found straggling from the Army and plundering the Country And the reason of the Law is there added Melius est occurrere in tempore quà m exitum vindicare Better it is to â—revent mischiefs in their beginning than to revenge them when done We therefore saith the Emperour grant you licence to avenge your own wrongs and what is now too late judicially to punish we shall endeavour to suppress by our Proclamation That no man shall hereafter spare a Souldier so plundering but shall resist and assault him with weapons as if he were a common Thief And of the same kind also is the subsequent Law concerning Souldiers deserting their Colours Let all men know saith he That against Robbers and Souldiers that fly from the Army power is hereby given to every man for the preservation of the common safety to execute publick revenge And thus is that of Tertullian to be understood In reos Majestatis publicos Hostes omnis homo Miles est Against Traitors and publick Enemies every man is a Souldier There is not only in Great Commanders and other Potentates Agathicas lib. 4. an innate and constant purpose of doing well to the Publick but it is both lawful and honest for every man that will to be troubled at the calamities that befal the Common-wealth he lives in and to promote as far as he is able the publick safety and prosperity thereof But the right of killing Exiles whom they also call Bannites differs herein from those mentioned in the said Laws For as to the former it is necessary that they should be particularly sentenced unto death before they be killed But as to these latter a general Edict together with the evidence of the Fact is as authoritative as a Sentence particularly denounced So thought Quintilian There are some crimes so evidently committed against the Commonwealth Dect 206. that the very sight of them is enough to justifie our revenge XVIII What acts are punishable by men The internal acts of the mind Now let us see whether all acts are such as ought to be punished by humane Laws And certainly they are not For in the first place the internal acts of the mind although they afterwards come to be known unto others as by confession or by some other accident cannot be liable to the punishment of men because it is not agreeable to humane nature that any right or obligation should arise from acts merely internal And in this sense are the Roman Laws to be understood when they say Cogitationis poenam neminem mereri which we render thus Thought is free yet
even these internal acts as they have their influence upon the external acts of the Body have their estimation not properly of their own but as those external acts deserve more or less punishment according to these internal ones of the mind XIX Such as are inevitable to humane nature Those acts that are inevitable to humane nature are not to be punished by humane Laws For though nothing be imputed to us as a sin but what hath the concurrence of the will and is done freely yet to abstain altogether and at all times from sin and over all temptations still to emerge Conquerours is above the strength and condition of humane Nature whence it is that all sorts and Sects of men have esteemed it natural for man to sin As among Philosophers Sopater Hierocles Seneca amongst Jews Philo amongst Historians Thucydides and amongst Christians very many have left us their testimony upon Record Sen. de ira c. 14. There is no man to be found that can in all things justifie himself saith Seneca A little before he had said c. 9. Amongst others the calamities that attend Mortals this is one namely The darknest of the understanding which betrays us not only to a necessity of erring but to the love of errours c. 17. And presently after Quis ille est qui se profitetur omnibus Legibus innocentem who is he that can plead his innocency to all the Laws and in another place De Clem. l. 1. c. 8. peccavimus omnes c. we have all sinned some more some less some intentionally others haply by the perswasion of others or violently carried away by the lewdness of another some of us through levity not adhereing to good counsel and some upon the suddain approach of dangers lose our innocency though unwillingly and not without some reluctancy neither do we sin only for the present but we will continue sinning to our death and although a man do purge his conscience never so well so that nothing doth either disturb or deceive him yet is it but by sinning that we arrive at this innocency Thus likewise Belisarius in Procopius not at all to sin falls not under the power of humane nature neither can our weakness bear it Si puniendus est Goth. 3. cuique pravum maleficumque ingenium est poena neminem excipiet if saith Seneca every man that is of a depraved nature were to be necessarily punisht no man would go unpunished To the same purpose is that of Sopater He that will so punish as if he would have men altogether without fault must needs exceed the natural bounds of correction Of the same mind was Diodorus Siculus Strictly to observe whatever is done amiss and severely to punish every offence is a wrong done to humane frailty and to forget the weakness that is common to all mankind For as the same Sopater saith wisely Our lesser and as it were daily slips of infirmity are rather to be connived at than punished And indeed it may well be doubted whether such as these may properly be called sins because though we have freedom as to this or that sin to do it or not to do it yet not at all to sin in respect of our natural frailty is impossible Every Law then as Plutarch in Solon saith should command things possible if it intends to punish a few profitably and not a multitude unprofitably Some sins there are that are inevitable not simply to mankind in general but to this or that particular person or to this or that particular time or age by reason of such or such a temperament of the body strongly inclining the mind as Seneca observes Morum varietates mixtura elementorum facit the variety that there is in mens manners is occasioned by the various mixture of the elements or by some overgrown customs which notwithstanding are usually punished not so much for themselves as for some former errours as either for neglecting the remedies whereby they might have been prevented or because those diseases of the mind were voluntarily contracted Lot's daughters made him drunk and then lay with him Grat. Can. 15. Q. 1. c. inebriaverunt but he knew it not whereupon St. Aug. passeth this sentence on him That he deserved to be punished not for his incest but for his drunkenness XX. Nor those that are neither directly nor indirectly destructive to humane Society Thirdly Neither are those sins to be punished by humane Laws which are neither directly nor indirectly against humane Society or against any other man because there can be no reason assigned why such offences should not be referred to the supreme Tribunal of God himself who is most wise to understand most righteous to perpend and weigh and most mighty to revenge and punish them wherefore all humane punishments as to such sins are plainly unprofitable and therefore vain Hence notwithstanding we are to except such punishments as tend only to reformation although haply it may no way concern others neither are those sins to be punished by humane Laws which are opposite to such vertues as the Laws do not compel but perswade only and exhort us unto as those of mercy liberality gratitude c. Seneca discussing this question whether the sin of ingratitude be punishable resolves it thus Cum res honestissima sit referre gratiam De Benef. lib. 3. c. 6 7. desinit honesta esse si necessaria sit since to be thankful is a thing eminently honest it would cease to be so were it necessary which he thus explains in the subsequent words For saith he if to be unthankful were punishable no man would more commend a thankful man than he doth that man that restores what was deposited with him in trust or that man that pays his just debts neither whereof can with honesty be detained and therefore are not courtesies but debts which whoso willingly pays we do not so properly commend as discharge him Non erat res gloriosa gratum esse Lib. 4. Cont. 23. nisi ingratum fuisse tutum fit it were not so lovely so grateful a thing to be thankful if to be unthankful were not safe He that provides alimony for his wife and children or that feeds and pays his servants for their labour deserves not thereby the honour of being reputed liberal or charitable because haply he doth it for fear of the Laws which have power to force him to do it But him that relieves the Poor cloaths the naked redeems the captive we commonly magnifie and extol for his charity Contr. l. 4. Contr. 23. Controv. 24. because these acts depend wholly upon the freedom of the will and if he did them not no Law can punish him So Seneca the father Thou wilt say unto me we are no where commanded to do this whereunto he answereth Hujus rei aestimatio immensa est itaque nulla vindicta est because the esteem of a grateful man is so precious for as
are about words only which a Philosopher should principally avoid For as he that wrote to Herennius truly notes Vitiosum est Controversiam intendere propter nominum mutationem Lib. 2. To heighten Controversies about the change of names is vitious And as St Augustine argues against the Academicks Turpe est disputationibus in verborum quaestione immorari cùm certamen nullum de rebus remanserit It is absurd to contest about words only when there remains no difference at all about things XXIV Yea and after the penal Law But the pardoning of offences after the penal Law is past seems to be more inconsistent with the integrity of a Prince because he that is the Authour of the Law is in some measure bound up by his own Laws which is true as the Law-maker is a Member of the City and as so only considered but not as he sustains the authority Vid. sup C. 4. Sect. 12. and is as it were the Body of the Commonwealth For as such he may take away even the whole Law for the nature of an humane Law is such that it depends upon the will of the Law-maker not in respect of its institution only but of its continuation Humane Laws alterable by him that made them But in case he do subvert or take away any Law without some probable reason or cause he sins against the Rule of Polity But as he may take away the whole Law so also may he take away the condemning power of the Law as to this or that person or to this or that particular Fact the same Law remaining in force as to others by the example of God himself who as Lactantius observes when he instituted Laws for men did not intend to deprive himself of the power of pardoning such as should offend against those Laws It is lawful for a Prince to revoke the sentence of death and to absolve a person though condemned to dye saith St Augustine whereof he adds this as the reason Quia non est subjectus Legibus qui habet in potestate Leges ferre Because he is not subject unto Laws in whose power it is to make Laws For the condition of a Magistrate is one and the condition of a Prince is another the Magistrate is corrupt if his Sentence be more remiss than the Law but to mitigate the rigour of a severe Law is sometimes the Glory of a Prince Seneca speaking in the Person of Nero saith Occidere contra Legem nemo potest Symmachus lib. 3. Ep. 63. servare nemo praeter me Kill contrary to Law no man can and save none can besides my self But this also must be understood so that it ought not to be done without probable cause but what these probable causes are though it cannot be particularly defined yet must we grant that they ought to be greater after the Law is past than those that were looked at before because unto the other causes for which punishments are required there is superadded the authority of the Law which is fit should be maintained XXV Causes freeing from punishment 1. Intrinsick But the Causes exempting any man from the penalty of the Law are usually either intrinsecal or extrinsecal Intrinsecal as when the punishment compared with the Fact is severe if not unjust XXVI Or extrinsecal Extrinsecal When a mans former merits or some other thing commending the person offending pleads strongly for his pardon Or when we discern some extraordinary hopes of future good in the Delinquent but especially if the reason of the Law do at least particularly cease in that Fact for which the punishment is to be inflicted For although the general reason of a Law where it is not counterballanced with a contrary reason is sufficient to uphold the vigour of the Law yet the failing even of that which is the particular reason of the Law doth so far operate that the Law may more easily and with less detriment to Authority be dispensed with as Gratian proves by many instances C. 1. q. 7. And this usually falls out in such sins as are committed through ignorance though not altogether blameless or through infirmity of mind which haply might though not without much difficulty be overcome Whereunto a Christian Prince ought to have some regard in imitation of God himself who in the Jewish Law did mercifully provide that most sins of this nature should by some kind of Sacrifices be expiated as we may read in the fourth and fifth Chapters of Leviticus And as in the New Testament we may find confirmed both by words and examples wherein he declares how willing he is to pardon such sins to those that repent as Luke 23.34 Heb. 4.15 1 Tim. 1.13 And by those very words of Christ Father forgive them for they know not what they do By which words Theodosius the Emperour was so wrought upon that he freely forgave the Antiochians whom he had purposed to destroy as St Chrysostome records XXVII Yea though no such exemption be tacitely included in the Law Hence then we may discern the errour of Ferdinandus Vasquius who taught that the Laws were in no cases to be dispensed with but only to such wherein the Law-maker had he been consulted with would have confess'd That it was not his intent that in that Case his Law should be observed For Vasquius there doth not well distinguish between the equitable interpretation of the Law and the relaxation of it whence it is that in another place he reproves Thomas and Scotus for saying That the Law was binding though the reason of that Law did particularly cease as if they took the Law to consist in the bare letter which they never thought But every relaxation of the Law which may be and often is either granted or omitted freely at the pleasure of the Prince is so far from being referred to equity properly so called that even that relaxation which is due either out of charity or polity is not to be referred thither For it is one thing to take away the efficacy of the Law upon some probable cause or upon some urgent occasion and another thing to declare that that Fact was not at the Law-making so much as thought upon by the Maker of it But let this suffice concerning the taking away the punishments Now let us see what may be said concerning their infliction XXVIII All punishments are awarded according to mens merits By what hath been already said it appears That in punishments two things are considerable First The merit of the Crime secondly The profit that redounds by the punishment As to the former Nemo puniendus est ultra meritum No man ought to be punished beyond the merit of his offence for as I said before There ought to be an equality between the sin and the punishment according to that of Horace Epist 15. adsit Regula peccatis quae poenas irroget aequas Let sins have Rules which equal pains require And not plague
petty faults with Rods of Wire Whereunto we may add that of Cicero to Brutus See to this purpose the speech of the Melanois in Guicc Lib. 17. Vid. sup Sect. 11. lib. 3. c. 11. sect 1. There is saith he a moderation to be used as well in punishing as in other things And therefore Papinianus calls punishment the valuation of a crime And †Leuct 2. Aristides saith That it is agreeable to humane nature that there should be bounds prescribed beyond which revenge should never stray in imitation of God himself who when he proceeds to Judgment is said to lay Judgment to the Rule and Righteousness to the Ballance as if he would retale it as it were by weight and measure But Demosthenes in his Epistle for Lycurgus's Children doth not approve of such an equality as is barely in weights and measures but with respect had to the purpose and intent of the Delinquent and then he concludes That within the Bounds of Merit all sins may be punished more or less so far forth as the punishment shall be thought profitable XXIX The impulsive Causes of sin are to be respected and compared together In the merit of the crime three things are to be examined First The cause that did provoke Secondly The cause which ought to have restrained and Thirdly The fitness and capacity of the person to either As to the first of these there is doubtless some cause that moveth every man to evil There is hardly any man wicked but for some end or if there be any man that loves wickedness for wickedness sake only surely he is not so properly a. man as a Devil The greatest part of Mankind are led unto sin by their affections Jam 1.15 So saith St. James Lust conceiveth and bringeth forth sin Where under this Notion Lust or Appetite I comprehend also that vehement desire of declining every thing that may hurt us which of all others is the most natural and so the most innocent Oft-times a man is almost inforced upon a sin to avoid some present danger as when to avoid death imprisonment torment or extreme poverty he doth some act of violence or injustice and then the fear of the evil that pursues him seems to render his sin the more excusable Whereupon Demosthenes inferrs That if a rich man be unjust he deserves doubly to be punished in respect of what he suffers for the like sin who is oppressed with poverty For before such Judges as have any sentiments of humanity the poor mans necessity pleads strongly for pardon whereas they who surfeiting with abundance sin merely out of wantonness can have no excuse at all for their wickedness Thus doth Polybius excuse the Acarnanae that to avoid that imminent danger that threatned them were enforced to break the Articles of their League with the Grecians against the Aetolians The more vehement the temptation is the more pardonable is the crime A Woman of Smyrna as Gellius tells the Story Gell. l. 12. c. 17. was convented before Cn. Dolabella the Proconsul of Asia for poysoning her Husband and his Son at the same time The Fact She confess'd alledging That She had good cause so to do because her Husband and his Son had betrayed and murthered her own Son by a former Husband being a young man innocent and of singular hopes which Fact was so clear that it could not be denied Dolabella calls a Council but none durst pass Sentence in so doubtful a Case for the Womans Fact being confest they thought ought not to go unpunished and yet the revenge She took for the murder of her Son appeared to be but just In conclusion Dolabella sent her to Athens to be judged by the Areopagites as being the most knowing and experienced Judges of that Age who upon a full hearing of the Cause adjourned the determination of it for a hundred years by which means they neither acquitted the Woman of her crime against the Laws nor condemned her though guilty because the violence of the temptation pleaded for pardon The less of provocation a man hath to do evil the greater is his sin Whence Aristotle inferrs That the sin of incontinence is greater than that committed through fear because it is more voluntary for what a man doth out of fear is to preserve himself from destruction and in such a Case there is a force upon the will See Prov. 6.30 31 32. But lust is conceived within us and therefore hath the more of evil because it hath a larger share of the will With whom accords Philo upon the Decalogue All other vehement perturbations of the mind are occasioned by the assault of some outward temptations which seem to happen against our will only our lusts because they are conceived within us can be imputed to none but our selves All sins saith Chrysostome merit not the same punishment but those deserve the greatest which might easiest be resisted Hence it is that in another place he inferrs That the Slanderer is a greater sinner than a Fornicator a Thief or an Homicide because these may have vehement temptations but the Slanderer none but his own Will Men do not despise a Thief if he steal to satisfie his own soul when he is hungry but he that committeth Adultery with a Woman lacketh understanding He that doth it destroyeth his own soul Prov. 6.30 32. All other appetites do tend to some good either real or imaginary those things that are really good besides virtues and their actions which cannot entice unto sin being alwayes at peace among themselves are either delectable as pleasures or such as are desirable in order to things that are delectable which we call things profitable as abundance of all outward enjoyments Those that are imaginary only and not really good are either the excellency that we think we have above others as it is separated from virtue and profit or revenge both which the more devious from Nature they are the worse they are Naturalia desideria finita sunt ex falsa opinione nascentia ubi desinant non habent Our natural wants saith Seneca are easily summed up but those that are grounded upon a false opinion are infinite St John collects all the provocations to sin under these three heads 1 Joh. 2.16 the lusts of the flesh the lust of the eyes or the pride of life the first whereof comprehends the desires of pleasure the second of profit the third of vain-glory and anger And Philo in his Exposition of the Decalogue derives all that is Evil from the desires either of Riches Honour or Pleasure Lib. 6. And Lactantius describes the office of Virtue to consist in the suppression of our anger in bridling of our lusts and in the moderating of our desires of riches For saith he almost all our unjust and wicked actions do arise from one of these affections which elsewhere he repeats XXX The Causes restraining from sin The general cause that should restrain us from
unless a greater and juster love of many perswade us otherwise for some cause that is external which sometimes is some extreme danger that may arise from him who hath offended but very often the necessity of an example But this most usually ariseth when the encouragements to any sin are general and cannot be represt without sharp and speedy remedies Now the principal encouragements to sin are these two namely Custom and Facility XXXV Custom facility how they add or detract from the punishment of sin Which two being so dangerous ought to be provided against by sharp and severe Laws The Hebrew Law did punish a Thief more severely for stealing Sheep or Oxen out of the field than out of the house Exod. 22.1.9 For he that stole out of the field was to restore four and fivefold but he that stole out of the house but double The reason whereof was because Cattle in the field are more easily driven away and therefore had need to be secured by the severer Laws Orat. pro Roscio Those crimes saith Cicero are to be fitted with the severest punishments Ea maximè animadvertenda peccata quae difficilimè praecaventur which cannot be prevented without great difficulty So Justin speaking of the Scythians saith There was no crime so heinous as Theft because to them who had neither houses nor inclosures to secure their herds of Cattle or their flocks of Sheep in what safety could there be if it were permitted unto them to rob and steal Much like unto that in Aristotle's Problems where speaking of such Thieves as frequented Baths he saith That the Law-giver considering that the owners could not in those places look after their things wisely committed them to the safegard of severe Laws And accordingly we find that these Balneary Thieves were in Athens punished with death if what they there stole were above the value of ten Drachmaes as Demosthenes testifies against Timocrates The Custom of a fact although it detract somewhat from the crime for as Pliny speaks in such a case he gave him his pardon and that not without reason for though the fact were forbidden by the Law yet was it commonly committed and not punished yet did it require in some sort to have been severely punished Because as Saturninus speaks Nimium multis grassantibus opus exemplo est when a sin begins to spread and Malefactors grow numerous then some exemplary punishment seems necessary for as an hot-headed Horse hath need of a strong rein so the more publick and customary a sin grows the sharper should be the punishments to suppress it But the former that is clemency in acquitting offenders is more to be followed in giving sentence and should be our guide in passing Judgments but the Laws themselves ought to be severe and impartial yet with due regard had to the time when those Laws or Judgments were made and published because the benefit that ariseth by punishments hath respect to the universality as all Laws also have but offences do vary and are not the same in every offender for in some they are greater and in some less XXXVI Clemency in the mitigation of punishments But where there are no great or urgent causes to exact the severity of the Laws there we should incline to mitigate punishments For herein consists one part of clemency the other part consisting in their total remission Because it is a difficult thing to find out an equal temperament between the sin and the punishment saith Seneca therefore let the inequality be always on the gentler side De Clem. l. 1. c. 1. And in another place Poenam si quis tutò poterit condonet sin minus temperet If it may safely be done the best way is to forgive if that cannot be the next is to lessen the punishment In Diodorus Siculus we find one of the Kings of Egypt highly commended for inflicting punishments less than the sin deserved So Justin in his Epistle to the Huns The manner of the Romans is not to exact punishments equal to the merits of the Offenders And indeed as I have before observed there is a great deal of mercy even in the mitigation of punishments the lesser lose much of their name and nature where the sin deserves greater It is said of Marcus Antoninus That his custom was always to award punishments somewhat lesser than the crimes deserved or the Laws required And Isaeus the Orator was wont to say That the Laws ought to be severe but the punishments always milder than the Laws The like by way of advice we find in Isocrates To make the punishments always less rigorous than the sin was heinous This was it which was intended by the Emperour Henry under the Symbol of a Pomegranet-Tree with this word Subacre Very sharp And Cassiodore reports it of a King Lib. 11. 40. who was often heard to say Where there is danger we are severe but where we are safe we always pardon When some Donatists were apprehended and brought before Marcellinus for whipping a Catholick Priest putting out one of his eyes and cutting off one of his fingers Ep. 159. Grat. c. 23. q. 5. Circumcelliones St Augustine fearing that he should have proceeded against them by way of retaliation humbly besought Marcellinus That he would not do so nor suffer any such thing to be done for nothing saith he more becomes a Prince than clemency And as Macedonius tells St Augustine It is the duty of a Priest to intercede for the guilty XXXVII To these are referred whatsoever the Romans or Hebrews have written concerning punishments Thus have we I hope omitted nothing that may conduce to the clearing of this Argument of it self difficult and obscure enough For those four things which as Maimonides saith ought principally to be regarded in punishments namely The greatness of the sin that is the damage given the frequency of such Sinners the vehemency of the temptation and the facility of committing it we have referred to their proper places no less than those seven mentioned by Saturninus though confusedly enough For first As to the person offending he is considered principally in his aptitude to judge of the Causes exciting to or restraining from sin whereof we have treated before The person suffering by that sin doth sometimes guide us to judge of the greatness of the sin Sect. 31. The place where it was committed doth either peculiarly aggravate it or appertains likewise to the facility of sinning Sect. 30. For it is not the same thing saith Philo to offer violence to a Stranger as to ones own Father Nor is it the same thing to speak evil of a private man as of a Magistrate or to commit an unlawful thing in a common or prophane place as in a sacred or on an holy day as on another day in a private house as in a publick assembly for as Vlpian observes There is great difference between an injury committed in the view of
the Roman people and the same committed in a solitary place The time also is to be considered whether long in contriving and if so then was the will the freer in her choice or short and sudden and if so then was it done more out of rashness than out of premeditated malice Fifthly The quality which may be referred partly to the several kinds of appetites and partly to the Causes which ought to restrain us from sin the greatness of the sin is likewise referred to the appetite so must the event to the causes restâ—aining XXXVIII Of War for punishment That War is sometimes undertaken for the neglect of punishing offences we have already shewed and Histories do every where teach us whereunto is usually added the reparation of the loss sustained when the same Fact is not only in it self vicious but unto others damageable From which two qualities there ariseth a double obligation as first That the person who hath done the wrong be punished according to his merits secondly That the damage by him caused be repaired That we are not to fly into Arms upon every provocation is evident enough For even the Laws do not avenge themselves upon every one that breaks them though they may safely do it because they hurt none but such as hurt others But small and common injuries saith Sopater are better connived at and dissembled than punished XXXIX Whether War for injuries begun only or intended be just Another Question doth sometimes arise Whether the purpose or intent only of doing wrong be a sufficient ground for a just War The Rhodians sent their Ambassadours to the Romans to urge them by threatnings to make peace with Perseus King of Macedon The Senate taking this as an Argument of their evil affections towards them though it proceeded no further than bare words yet thought it worthy their consultation Gell. l. 7. c. 3. whether this were sufficient ground for a just War But because the Rhodians did not break out into any hostile acts nor had made any publick Decree against them therefore by the advice of Portius Cato they were neither admitted as Friends nor declared against as Enemies But yet this Precedent is not always to be followed because in some Cases the will which hath proceeded to express it self by some Overt Acts though the internal acts of the mind be exempted from humane Laws doth contract a kind of guilt and so is obnoxious to punishment Scelera quoque quamvis citra exitum súbsederunt puniuntur Sen. in Controversiis Excerpt 4. 7. Sen. de ira l. 3. de Benef. l. 5. c. 14. De Leg. special The very first attempts only of wickedness though they fail of success are punishable saith Seneca the Father and he who purposeth and is about to do us wrong hath already done it saith the other Seneca So in another place A Thief is a Thief before he defiles his hands neither is it the last act of killing only that denominates a murtherer it sufficeth that he goes out armed with a purpose to kill and to spoil to make him in some degree guilty Of the same opinion was Philo They only are not to be accounted Murtherers who take away the lives of men but they also that attempt all ways both secret and open to kill any man although they have not as yet effected it Thus Valerius Maximus speaks of Sergius Silo That is was not his Fact that was then called in question but his Purpose Plusque voluisse peccare nocuit quà m non peccasse profuit And that he would have sinned was more damageable than that he did not sin was profitable So Cicero pleads in the behalf of Milo Non exitus rerum sed Concilia Legibus vindicantur Not the event of things only but their very purposes and intentions are by the Laws punishable To the same purpose is that of Periander in Plutarch Not they only that have wronged us Liv. lib. 42. but they that go about to wrong us deserve to be punished The Romans thought they had just occasion to make war upon Perseus unless he gave them good satisfaction why he made such warlike preparations both by Sea and Land and had consulted about making war upon them though they had not as then committed any hostile act against him And yet it is well observed by Livy in that Speech which the Rhodians made to the Roman Senate That it did not consist with the Laws and Customs of any City in the World to condemn a man to death only for wishing his enemy dead unless he had also acted something in relation thereunto But neither is every intention of the will though it have proceeded to some declarative act ground sufficient for a just punishment For if all injuries though perpetrated are not to be revenged much less ought all that are only purposed or begun For in many as Cicero saith doubtingly I know not whether it be sufficient for him that provokes another to have repented of the injury he did him For neither doth the Law of Moses award any special punishment for such sins as were inchoated against piety nor committed against the life of a man without judgment first pass on him because in these as also in Divine matters which are not clear nor conspicuous mistakes are easie and the passion of anger being sudden and violent makes its effect the more pardonable Moreover where there are such a multitude of women whereof every man hath liberty to chuse a Wife for any man to attempt anothers and in so equal a distribution of Goods so far forth as nature requires for her necessary support to endeavour to inrich himself with the spoil of others is no ways tolerable For that Commandment Thou shalt not covet Exod. 20.17 although if we look to the scope of the Law that is the spiritual sense of it it extends it self farther requiring the purity of the mind yet if we look to the literal and carnal Precepts it refers to such acts of the mind only as are declared by some outward deeds as plainly appears by comparing that of our Saviour Mark 10.19 Matth. 10.19 where he explains that very Precept by these words Do not defraud which in the very same verse he had before express'd in these Thou shalt not steal The very same words we find Mich. 2.2 both in the Hebrew and Greek in the same sense Injuries begun only are not to be vindicated by Armes unless the matter be both very weighty and that it hath already proceeded so far that from what is already done either a certain mischief though not yet what was intended hath already befaln or some extraordinary dangers do thereby threaten so that the vindication be either conjoined with some caution against future damage whereof we have treated above in the Chapter of Defence or the maintenance of our honour that seems by that act to be wounded or to prevent it from being a pernicious example
some Gods Neither is it possible De Benef. lib. 4. c. 4. saith he in another place that all the World should be intoxicated with so universal a madness as to invoke Surda numina Deos in efficaces such idle Gods as can neither hear our prayers Vid Plat. Protagora de legibus l. 10. nor do us good Nay Jamblicus makes it as proper for a man to acknowledge a God as for an horse to whinny Hence it is that Pomponius places Religion among the Laws of Nations and that Socrates in Xenophon saith That to worship the Gods is a Law universal being in force amongst all people with whom agrees Cicero as we may read in his first Book of the Nature of the Gods and in his second of Invention And Dion Prusiensis calls it a perswasion both natural and necessary to all creatures that have the use of reason Xenophon likewise affirms That all Nations as well Greeks as Barbarians have agreed in this That all things are known to the Gods whether they be present past or to come Now whosoever first begins to erase these general notions of the Divine Pâ—ovidence out of mens minds as they have in all well governed Cities been deservedly punished as we read it happened to Diagoras Melius and the Epicureans who were banished out of every well-governed Common-wealtâ— so I believe they may also be now by foâ—ce restrained in the name and behalf of humane society which by this means without any probable reason they endeavour to dissolve And therefore Moxus the Lydian Lydus as Damascen relates the story having taken the City Crambuz drowned all the Inhabitants thereof because they neither acknowledged nor worshipped any Gods And Himeriuâ— the Sophister pleads thus against the Epicures Dost thou suffer punishment for thine opinion no but for thine impiety It is permitted to every man to deliver his opinion but to none to destroy Religion XLVII But not others proved by the Heb. Law As for the other general notions as That there are not more Gods than one That none of these things we see is God not the World not the Heavens nor the Sun nor the Air That the World was not from Eternity nor the matter whereof it is composed but rather created by God these cannot be so easily demonstrated nor are they so universally received as the former And therefore the knowledge of these through the corruption of mens manners and the loosness of the Laws which did the less regard them because even without these there might remain some shew of Religion have been in many places almost totally expunged Neither did the Law of God given to the Hebrews though it were confirmed by prophecies and miracles and though it utterly detested and abhorred the worship of false Gods adjudge every man to death that was convicted of such worship but such only as by reason of some circumstances were of dangerous consequence as him who being a Prince or a Prophet should begin to seduce others Deut. 13.16 Or as that City that should begin to set up strange Gods as we read Deut. 12.23 Those that worshipped the Sun the Moon the Stars thereby destroying the whole Law and forsaking the worship of the true God Deut. 17.2 which St. Paul expounds to be the worshipping of the creature not the Creator for the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as well here as elswhere hath an exclusive faculty which was a crime punishable even among the Sons of Esau as appears Job 31.26 27. So he that offered his Children to Molock that is to Saturn Lev. 20.2 Neither did God himself adjudge the Cananites and their neighbouring Nations to destruction as soon as they fell to Idolatry but suspended the Execution of his wrath till they had contracted a vast heap of sins besides their Idolatry Gen. 15.16 So it is said of other Gentiles concerning their worship of false Gods That God winked at the time of their ignorance Act. 17.30 It was truly said of Philo That every mans own Religion seems to him the best because he judgeth of it not by reason but by affection like those Philosophers of whom Cicero spake who liked no Discipline but their own So we take our Religion not by choice but by chance being engaged to that of the Clime wherein we are born before our judgments are awakened to discern truth from falshood as they then are rather to be pitied than by humane Laws punished who having received no Laws from God nor having any knowledge of him shall worship either the powers of Heaven by whose grateful heat light and influence all things are produced both for delight and nourishment or the powers of any other natural causes or of spirits whether in Images or in living Creatures or in any other things The souls of good men who have been eminent and exemplary for vertue or such like especially if they did not themselves set up that worship but received it by tradition from others and therâ—fore could not properly be said to have forsaken the worship of the true God for we read of Sacrifices sent to the Temple at Jerusalem from the Kings of Aegypt from Augustus and Tiberius to be offered to the true God and though these Kings were Idolaters yet did the Jews admit of them as Josephus and Philo testify So they on the other side are not to be reckoned among such as are purely ignorant and erroneous but rather among those that are impious and obstinately wicked who worship Devils as knowing them to be such or the names of mens vices or that attribute Divine Honour unto men as wicked and vicious as themselves or that honour their false Gods with humane Sacrifices which barbarous custom we read was practised by the Carthaginians until they were compelled to leave it by Darius the Father of Xerxes King of Persia and by Gelo the Syracusian Tyrant who stand highly commâ—nded for it Plutarch also gives us an account of some barbarous people that were to have been punished by the Romans for offering humane Sacrifices but when they pleaded for themselvâ—s the Antiquity of those Rites they were dismist without punishment and only forbidden it for the future XLVIII Nor against those who will not embrace Christianity But what shall we say of that War which is undertaken against some people for no other Cause but because they would not embrace Christianity when proposed unto them I do not here question whether the Religion so proposed were such as ought to have been proposed or in such a manner as it ought to have been We are willing to gâ—ant both But two things are here to be considered first That the truth of Chrisâ—ian Râ—ligion Two things observable in those Points which are superadded to that Primitive Religion which is grounded upon the Law of Nature cannot be demonstrated unto any man by Arguments merely natural because they are grounded upon matters of fact namely upon Christs resurrection and upon those
Miracles that were wrought by him and his Apostles which thing being matter of fact though of old confirmed to have been done by most irrefragable Testimonies yet of old so that this is a question of Fact and that now of great Antiquity Much more may this be questioned by such as now live so many Ages distant from that Age wherein they were done as well as the truth of their Histories which are as ancient as that is especially by those who never heard of them before nor have any of those helps either inward or outward which are necessary to beget Faith And therefore we say That Faith is not by Nature but by Grace and that as when God gives it it is not as the reward of any pleading merits so when he denies it or gives it more sparingly it is for Causes not indeed unjust though unto us for the most part unknown and so not at all punishable by humane Laws To this purpose was that Canon of the Toletane Council made whereby it was decreed That no man should be inforced thenceforth to Christianity Rom. 9. For it is said He will have mercy on whom he will have mercy and whom he will he hardenenh So Josephus Every man ought to worship God willingly and freely and not by compulsion It is the custom of the Holy Scriptures to attribute that to the will of God whereof no probable cause can be assigned by men Wherefore since it is not in the power of man to give a reason why some men do believe and others not though both have the same outward helps and means hence it is that we resolve all such doubts in Gods will saying He will have mercy on whom he will have mercy and whom he will he hardeneth Neither is this the manner of the Holy Scriptures only but it is usual with prophane Authours who when in doubtful Cases they find not reason sufficient to inform their judgments supply that defect with a sic visum Thus it seems to be The second thing observable is That Christ the Authour of the New Law did never intend that any man should be compelled to receive it by temporal punishments or driven thereunto by the fear of them We have not received saith St Paul the Spirit of bondage to fear Jo. 6.67 Luke 9.54 Matth. 13.24 Rom. 8.15 So Heb. 2.15 In which sense it is very true what Tertullian saith Nova Lex non se vindicat ultore Gladio The Gospel doth not call for the Sword to avenge its injuries Isidore speaking of Sisebutus King of Spain saith That in the beginning of his Reign being inflamed with a zeal for Gods Glory though not according to knowledge he compelled the Jews to Christianity by the power of the Sword whom he ought to have won to the Faith by meek and gentle perswasions And for this very Cause were the latter Kings of Spain highly blamed by Osorius and Mariana In the Constitutions of Clement it is said of Christ That he left to every man the free power of his own will not punishing the breach of his Law with temporal death but calling them to an account for it in the life to come So our Blessed Lord leaving every man to his own will makes Proclamation openly to all If any man will come after me Vid. Cypr. Ep. 55. de Idolor vanitate c. And to his Apostles Will ye also forsake me as leaving it to their own choice without laying any inforcement upon their wills And whereas in the Parable of the Great Supper it is said That some were compelled to come in it is answered Luke 14.23 That as in that Parable the word compel argues nothing else but a vehement sollicitation so also is it to be understood in the Moral of that Parable in which sense the same word is taken Luke 24.29 and not otherwise Matth. 14.22 Mark 6.45 Gal. 2.14 Procopius in his secret History tells us That Justinian the Emperour was by many very wise men taxed for compelling the Samarites by force and menaces to Christianity adding thereunto the inconveniencies that was likely to arise thereupon XLIX That war may justly be made against them that persecute Christians as such But they that persecute others for no other cause but because they either teach or profess the Christian Religion are most unreasonable For certainly our Christian Doctrine considered in its sincerity without any commixture contains nothing prejudicial to Humane Society nay that doth not rather advance it it shall speak for it self and its Enemies shall confess no less Pliny reports of the Christians of his time That they had obliged themselves by oath to abstain from thefts and robberies and not to break their faith with any man Ammianus speaking of our Religion saith That it teacheth nothing but what is just and merciful So doth Arnobius treating of Christian Assemblies Wherein saith he nothing is heard but what exhorts to humanity meekness bashfulness modesty chastity and communicating of their goods to all men as if they were all link'd together by brotherly love And it is the usual Character that the very Heathen give of it That it is Secta nemini molesta A Sect of Religion offensive to none Zozimus though a Pagan gives this testimony of the Christian Faith That it is a promise and engagement to be free from all crimes and from all impiety Apolog. 2. So likewise Tertullian We saith he are Coadjutors and Fellow-labourers with you in establishing the peace of the Empire instructing our Auditors that it is impossible for any man to conceal himself from God whether he be an evil Doer a Thief a Traitor or a just Person as also that every man shall be adjudged to eternal either life or death according to the merit of his deeds Tertullian also observes that it was a common by-word in his time Bonus vir Cajus Sejus tantum quod Christianus He is an honest man only he is a Christian And if it be objected That all innovations are to be feared especially Conventicles and private Assemblies I answer That those Doctrines though new are least to be feared that teach all things that are just and honest but principally those that exact due obedience to Magistrates neither should the private Assemblies of Just and Innocent men be either envied or suspected especially of such as desire not to abscond themselves unless they are persecuted And here I might justly apply unto these Christian Assemblies what Philo records that Augustus said of the Jewish Conventions In Legatione Non eos Bacchanalia esse aut coetus turbandae paci sed virtutum scholas That such meetings were not for revelling or for sedition but mere Academies for Virtue They therefore that persecute such men Aquin. secunda secundae q. 108. and that for this only cause may themselves justly be persecuted Upon this ground it was That Constantine made War against Licinius and other Emperours against the Persians
blame-worthy as he that injures him Yet are not such Covenants to be so far extended as to engage us in a War if there be no just Cause Amb. de Off. l. 1. c. 36. Wherefore the Lacedemonians before they had made War against the Athenians referred the justice of their Cause to the judgment of all their Confederates Liv. l. 34. So did the Romans before they began their War against Nabis make the Grecian Cities Judges in their case So Simler Simler concerning the Commonwealth of the Switzers If the Lord shall make War against any man and it be known that his cause be just or if it be doubted whether it be so the Vassal shall be bound to assist his Lord but if it be manifest that the War is unreasonable then is the Vassal bound only to defend his Lord but not to offend another Whereunto we may add That though the case of our Confederates be just yet if his case be desperate A Confederate not to be assisted in case his condition be desperate and why and that though we should assist him with what forces we can there are no hopes of a good end we are not then bound to aid him because all alliances were at first made for preservation but not for destruction yea and we may defend one of our Confederates against another of our Confederates unless we are by any Article in a former League particularly forbidden it Thus the Athenians might have defended the Corcyreans if their Cause had been just against the Corinthians their more ancient Associates V. For our Friends Next to our Confederates our friends are to be assisted to whose aid though we stand not engaged by any League or promise yet upon the score of common friendship we ought to contribute towards their assistance if we may do it with ease and without any inconvenience to our selves Thus Abraham too up Arms in defence of his Kinsman Lot And thus the Romans farbad the Pirates of Antium to rob the Grecians their Friends and Kinsmen And thus we often read it of the same Romans that they frequenly either made War or at least threatned so to do not in the behalf of their Associates only to whom they stood obliged but for their Friends and Neighbours also upon no other account but that of Love and Friendship There is an old Oracle that serves to guide us in this case Non ope juvisti praesens in morte sodalem Effabor tibi nil nisi Templi finibus exi VI. For any man Lastly we owe our assistance to all mankind by reason of that near conjunction that there is between us which alone were sufficient to excite us to aid and to succour each other Homo in adjutorium mutuum generatus est Men saith Seneca are born to help each other And again Cic. de Fin. l. 3. de Off. l. 2. Sen de Ira. l. 1. c. 7. de Clem. 2. 5. A wise man will as oft as be can prevent misfortunes According to that of Euripedes What Beasts from Rocks Servants from Altars have Cities distrest the like from Cities crave And indeed That fortitude that defends the cause of the weak and innocent is full of justice saith St Ambrose but of this we have treated above VII Yet it may be omitted if either it endanger our selves or take away the invaders life Here also it may be questioned whether for one man to defend another or for one People or Nation to protect another from violence and wrong be a debt whereunto we stand bound Plato in the fourth of his Laws affirms That he that doth not repel violence offered to another if he can do it deserves to be punished The like provision was made both by the Hebrew and Aegyptian Laws * Diodor. l. 1. but this general will admit of some exceptions for in case we cannot do this without incurring some manifest danger unto our selves it is most agreeable to nature that we abstain from attempting it for every man may prefer his own before the welfare of another And in this sense doth that of Cicero hold true He that doth not defend another nor resist an injury when he can is as much to blame as he that deserts his Parents his Country or his Friends if he can that is with safety to himself For he himself in another place admits That some haply may he left unprotected without blame Salust in his History gives this wholesome advice Let them saith he who being in prosperity are about to engage themselves in a social War seriously consider First Whether they may then live in peace Next Whether the War they engage in be just safe honourable or otherwise inconvenient De benef l. 2. c. 15. Succuram perituro sed ut ipse non peream I will defend him saith Seneca that is ready to perish but so that I thereby perish not my self unless it be to rescue from death some person of great honour or to purchase some very great advantage unto either my self or my relations De benef lib. 1. c. 10. See Book 2. ch 1. §. 8. Bonum etiam impendio sanguinis mei tuebor A good man saith he though with the hazard of my life I shall defend and if I can rescue a bad man from Thieves by my clamour and outcry I shall willingly strain my voice to do him good But yet if that good man be so oppressed that he cannot be relieved without the death of the oppressor I am not bound to do it for if what I have said above be granted namely That the case may so happen that the person invaded may chuse rather to dye himself than to be the death of the invader He that doth believe the invaded doth wish or would chuse rather so to do doth not sin if he do not rescue him especially when the damage that is likely to befal the invading party is in all probability likely to be both irreparable and everlasting VIII Whether a War may be made upon another King for oppressing his own Subjects Another Question is sometimes started Whether that War be just which is undertaken to free anothers Subjects from the oppression of their own Prince without doubt as soon as civil societies were at first instituted every Governour had some peculiar Rights over his own Subjects according to that of Euripides Nos quotquot hujus colimus urbis moenia Sufficimus ipsi nostra judicia exequi We that within these walls reside suffice Our selves to punish our Delinquencies To the same purpose also is that Spartam tibi quae contigit orna Nobis fuerint cura Mycenae Let Sparta's care be thine Mycena's shall be mine Thucydides amongst other marks of Soveraignty reckons this namely A Power in it self to execute judgments and this he holds to be as necessary as the Power either of ordaining Laws or creating Magistrates and to this we may refer that of Neptune concerning Aeolus Virgil Aen.
it is a thing in it self so horrid Quest Nat. lib. 5. c. 18. Grat. c. 33. q. 1. that nothing but pure necessity or perfect charity can denominate it just or honest So St. Augustine Militare non est delictum sed propter praedam militare peccatum est Simply to make War is not sinful but to make War for plunder and pay only must needs be wicked X. Especially they that make War for spoil Nay to make War for pay or hire is likewise a sin if that be the only or principal thing we aim at though otherwise to receive pay for our pains when we are lawfully called to fight is altogether lawful For who saith St. Paul goeth to War at any time upon his own charge CHAP. XXVI How War may be justly waged by such as are Subjects to anothers Command I. Who they are that are under the dominion of another II. What they ought to do being admitted to debate or being left to their free choice III. If they think the cause unjust though commanded they ought not to make war IV. What they ought to do in case they doubt the justice of the Cause V. If they cannot be satisfied their persons are to be spared but their Taxes heightened VI. In what case Subjects may justly take Arms in an unjust War I. Who are said to be under anothers Dominion HItherto we have treated of such as are free and have power to dispose of their own actions There are others that are under a more servile condition and such are the Sons of a Family Servants Subjects and each particular Citizen compared with the whole Body of the City whereof they are II. What they are to do being left to their own choice But these men if either admitted to advise or left to their own choice whether they will either take up Armes or be quiet ought to be guided by the same Rules which are already set down for those who being free have power to make war either for themselves or others III. What if they think the cause unjust But if commanded thereunto as usually they are then if it be evident unto them that the Cause is unjust they ought altogether to forbear for that God is rather to be obeyed than man was not only the judgment of the Apostle but even of Socrates also as Plato testifies in his Apology So also thought the Hebrew Doctors namely That Kings if they command any thing contrary to Gods Laws were not at all to be obeyed For this Josephus records of his Country-men who being convicted before Herod for pulling down the Roman Eagle which he had caused to be erected over the Great Gate of the Temple at Jerusalem and demanded how they durst do it returned this Answer Ant. lib. 17. c. 8. What we have done we did in vindication of God's honour and of that Divine Law whereof we profess our selves to be the Disciples neither hast thou cause to wonder if we hold the Laws which Moses delivered unto us from God himself to be more sacred and indispensable than thy Decrees Neither do we refuse to suffer death or any other punishment thou shalt think fit to inflict upon us as knowing that we shall not suffer as Malefactors but as Martyrs in a good Cause That excellent Saying of Polycarpus now ready to expire lives still upon Record namely To Princes and Potentates we owe all due honour and obedience yet not so as thereby to endanger our eternal salvation It was the advice of St Paul Children obey your Parents in the Lord Eph. 6.1 for this is right upon which words St Hierome thus glosseth For Children not to 〈◊〉 their Parents is a sin but because Parents may haply command that which is unlawful therefore he addes In the Lord. And St Chrysostome thus expounds them Children obey your Parents in the Lord that is in all things wherein you shall not disobey God Ad Patrem Infidelem And in another place he saith For it is no small reward that God proposeth to us for our obedience to Parents and Magistrates For we are commanded to esteem them as our Lords and both in words and deeds to yield them all due observance yet so as the works of true piety and devotion are not thereby hindred But if thine obedience unto God call thee forwards then that of St Hierome holds true which he speaks declamatorily out of Seneca Per calcatum perge Patrem Thou must go on though thou tramplest on thine own Parents For our obedience unto our Parents cannot justifie our disobedience unto God For as the same Apostle saith Every man shall receive from God according to his own works whether bond or free The like advice doth St Hierome give unto Servants where he addes In Eph. 6.1 But when our carnal Lords shall command any thing contrary to the will of him who is the God of the Spirits of all Flesh then they are not to be obeyed Again in another place In those things only are men subject unto their Lords and Masters which are not contrary to the Commands of God So likewise Chrysostome Servants also have their bounds and limits prescribed them by God In 1 Cor. 7.24 and how far they may go in their obedience is also commanded beyond which they must not proceed If the Lord command us nothing that is by God forbidden he is to be followed and obeyed but not beyond The like advice gives Clemens Alexandrinus concerning a Wife Let her saith he obey her Husband in all things and do nothing against his will but what she believes may very much conduce to vertue and her own salvation So likewise Tertullian We are sufficiently instructed saith he by the Apostles Precept to be subject to Magistrates Princes and Powers in all obedience Sed intra limites Disciplinae So far as they transgress not the Rules of Christian Discipline The like we read of Silvanus the Martyr We therefore despise the Roman Laws lest we should thereby transgress the Divine Laws And Musonius If a Son a Servant or a Subject In Martyrologio shall refuse to yield obedience unto either a Father a Master or a Prince in such Commands as are impious and ungodly they shall not be accounted as disobedient injurious or wicked Now as the obedience of Servants is bounded by the Divine Laws so is that of Children to Parents Lib. 2. c. 7. Aulus Gellius approves not of this opinion That a Father is in all things to be obeyed For saith he what if he command his Son to betray his Countrey to kill his own Mother c. Therefore the middle way is best and safest in some things we must in other some we must not obey So Seneca the Father Non omnibus Imperiis parendum est All Commands oblige us not unto obedience So Quintilian There is no necessity that Children should execute all their Parents Commands for there may be many things which though
of it Prudence indeed as Aristotle notes is a Vertue proper to Princes but Justice belongs to men as they are men And therefore the reasons of their counsels as Princes are not to be communicated but the reasons of their actions as men may be proclaimed These things considered we conclude with Pope Adrian That where the Subject doth not only doubt the lawfulness of the War but by very probable Arguments is induced to believe that it is unjust especially if that War be offensive and not defensive he is bound to abstain Nay very probable it is That the Executioner whose Office it is to execute the penalty of the Law upon a condemned Malefactor should be throughly informed in the merits of his Cause either by being present at the whole Tryal or by hearing the confession of the person condemned that so he may be convinced that he whom he puts to death hath by the Law deserved it which in some places is observed Neither can there any more probable reason be assigned for that Hebrew Law whereby it was provided That when a Malefactor was to be stoned Deut. 17.7 1 Sam. 22.17 the Witnesses should go before the people and cast the first stone at him And for this Cause it was that the Kings Guards refused to fall upon the Priests of Nob at Saul's command being throughly convinced both of the sanctity of their Order and of the equity of their Cause And for this very reason it was that the third Captain 2 Kings 1.17 being sent by Ahaziah unto Elijah would not lay violent hands upon him And for the same reason it was that many publick Executioners amongst the Jews being converted to Christianity renounced their Offices as being very dangerous if we may give credit to the Martyrology Lib. 1. c. 7. and to venerable Bede V. Extraordinary Taxes to be exacted instead of obedience in this Case But in case the Subjects minds are not satisfied concerning the equity of the Cause by their Princes Declaration then 't is the Office of a good Magistrate rather to impose some extraordinary Taxes upon them than to compel them to serve him in his Wars unsatisfied especially when he may be supplied with men otherwise Now whether these Souldiers do serve him with a good or evil intention is no matter for a good Prince may make use of both as God himself doth of Satan and his Disciples as Instruments to bring about his own most Sovereign purpose or as a poor man may and doth make use of Jews and Extortioners to supply his present wants and that without sin Nay though there be no doubt of the lawfulness of the War yet it is not fit that Christians should be compelled to fight against their wills seeing that to abstain from War even then when it is in it self lawful hath always been required of Church-men and Penitentials to preserve them in the greater sanctity and is in all others many ways commendable When Celsus upbraided the Christians for refusing to go to war Origen apologized for them thus To those who being Vnbelievers would inforce us to fight for the Commonwealth and to destroy men we shall give this Answer That even their own Idol-Priests and those that attend upon the service of their reputed Gods do keep themselves unstained with humane blood that so they may offer up their Sacrifices for the whole Nation with clean and unpolluted hands Neither in case there should arise a War are these men to be listed in their Armies And if this be not done without reason how much more may they be said after their manner to fight who being Priests to the Most High God endeavour to preserve themselves free from bloud and rapine that so whilst others are polluted with spoil and slaughter they may wrestle with God himself by constant and incessant prayers for the welfare of them that make war justly and for the safety of them that govern righteously Apoc. 1.6 Wherefore Origen calls all Christians Priests by the example of the Holy Scriptures 1 Pet. 2.5 VI. When Subjects may justly engage in an unjust War But yet I believe that a Case may so fall out that in a War not only doubtful but manifestly unjust it may be just for Subjects in some measure to defend themselves For seeing that no enemy though prosecuting a just War can have any true and internal right to kill such Subjects as are innocent and no ways accessary to the War unless it be either for necessary defence or by consequence and not intentionally for such Subjects are not liable to punishment it follows That if it evidently appears that the enemy comes with a full purpose not to spare the lives of such hostile Subjects when with safety to himself he may then those Subjects may by the Law of Nature defend themselves which right neither doth the Law of Nations take from them neither will we say That such a War is on both sides lawful for we dispute not here concerning the legality of the War but of a certain and determinate action in the War which action though it proceed from one that otherwise hath a sufficient right to make war yet is unjust and may therefore be justly repelled The End of the Second Book Hugo Grotius OF THE RIGHTS OF WAR and PEACE BOOK III. CHAP. I. Of certain General Rules shewing what by the Law of Nature may be lawfull in War wherein also he treats both of Fraud and Lies I. The order and method of the Book following II. The first Rule whatsoever is necessary to the end is lawfull in War explained III. The second Rule A Right in War may arise as well from Causes subsequent as from the beginning of the War IV. The third Rule that in War some things may be done indirectly without injury which if by themselves and intentionally done were unlawfull with a caution V. What may lawfully be done to such as supply the enemy with things needful this explained VI. Whether in War Fraud be lawfull VII That Fraud in its negative act is not of it self unlawful VIII Fraud in its positive act is either by such outward acts as admit of several constructions or by such as signifie as it were by arguments fraud in the former sense lawfull IX Of that in the latter sense the question is difficult X. The use of words in another sense than that wherein we know they are understood not always unlawfull XI The form of a Lye as it is unlawfull consists in the repugnancy it hath with anothers Right this explained XII That it is lawfull to speak that which is false to Children and Madmen XIII So also when he is deceived to whom our speech is not directed and whom without speech we may lawfully deceive XIV And when we are assured that he to whom we speak is willing to be so deceived XV. And when he that speaks exerciseth that Supereminent Power that he hath over his own
that forbad it yet could he never attain unto that perfection of holiness that the Gospel seemed to commend unto us So for a believing Husband to put away his unbelieving Wife is lawful as St. Augustine affirms which with what circumstances is to be verified it is not to our purpose in this place to discuss but yet he may and that haply more laudably retain her Wherefore he adds Both are equally lawful according to the rules of Divine Justice for neither of them are prohibited by God but yet both are not equally expedient Vlpian concerning him that having sold his Wine and covenanted with the buyer that if he fetcht it not by such a day it should be lawful for him to pour it out saith That although he may do it yet if he do it not he is the more to be commended Secondly this word Lawful may be taken for that which is not punishable by humane Laws although it consist not with Piety or the rules of Morality thus in many Countries fornication is lawful that is not punishable Amongst the Lacedemonions and Aegyptians theft was lawful And in Quintilian we read That there are some things which though not in their own nature commendable yet that are by the Laws tolerated as by the Laws of the twelve Tables The body of the Debter might de divided among the Creditors all which though in themselves unfit and unseemly yet are by some Lawgivers permitted to avoid greater inconveniencies Licentia plerumque est tentatio Disciplinae Licence saith Tertullian is for the most part but the touchstone of Discipline All things saith S. Paul are lawful but all things edify not Now this acception of the word Lawful is somewhat improper as Cicero testifies in his Tusculans Lib. 5. where speaking of Cinna who had been four times Consul and had caused divers of the chiefest of the Roman Nobility to be slain saith thus Shall we esteem this man happy nay on the contrary I think him miserable not because he committed these things but because he so governed the Commonwealth that he might lawfully commit them not that it is lawful for any man to sin Sed sermonis errore labimur dum id licere dicimus quod cuique conceditur But we are misled through the common errour of speech whilst we pronounce that lawful which is only permitted Summum jus summa injuria Whence Columella concludes That we ought not to prosecute our revenge to the utmost of what we may for extreme severity is too near a Neighbour to extreme cruelty Yet notwithstanding though this acception of the word Lawful be not so proper yet is it among the Romans very frequent as will appear by the same Cicero who thus bespeaks the Judges Orat. pro Rabirio Posthumo Quid deceat vos non quantum liceat vobis spectare debetis Ye that are Judges ought to consider not so much what in strictness of Law ye may do but what in every case is most fit and convenient to be done for if you regard your own power only ye may put to death even whom you will In the same sense as it is usually said of Kings That they may do even what they please because they are exempted from the lash of humane Laws yet is that advice which Claudian gives unto his Prince much more worthily to be by all Princes received Nec tibi quid liceat sed quid fecisse decebit Occurrat Resolve to do Not what you may but what becometh you Musonius highly blames those Princes who study more their own Prerogatives Declam lib. 3. cap. 5. than the Good of their Subjects and that say thus and thus I can do rather than thus and thus I ought to do Hence it is that we find these two words Licet and Oportet it is lawfull and it behoves placed sometimes in opposition one to the other Lib. 30. As in Ammianus Marcellinus Sunt aliqua quae fieri non oportet etiam si licet Some things there are which are not fit to be done though lawfully we may do them So in Pliny's Epistles Things that are dishonest we must avoid not as they are unlawfull but as they are shamefull And as Cicero himself affirms the same Est enim aliquid quod non oporteat etiamsi licet Orat. pro Balbo Something 's are not fit to be done though lawfull And in his Oration for the defence of Milo he distinguisheth between fas and licet attributing to the former that which is agreeable to the Law of Nature and to the latter that which was agreeable to the Laws of particular Countries So Quintilian the Father in one of his Declamations tells us Orat. 251. That It is one thing to look strictly to what is a mans Right i. e. to what a man may do and another thing to respect that which is just Aliud est spectare jura aliud justitiam III. In War the effects are lawfull generally that is not punishable In this sense therefore it is lawfull for one Enemy to hurt another both in his Person or in his Estate It is lawfull I say not only for him that makes War upon a Just ground and that in the prosecution of that War contains himself within those bounds which by the Law of Nature are prescribed him as we have already said but for both parties and that without distinction So that he that doth thus injure his Enemy though he be apprehended in another Princes Dominion yet can he not be proceeded against as an Homicide or as a Thief neither can any other Prince for this only Cause make War upon him and in this sense is that of Salust true By the Law of Arms all things are lawfull to the Conquerour IV. Why such effects were introduced Now the Reason of this so great a licence granted by all Nations is this because when two Nations are at War for any other Nation to judge where the Right is had been dangerous for by that means that Nation may quickly be intangled in the others War as the Marseillians pleaded in the Cause of Caesar and Pompey And therefore they confest That they had neither Wisdom nor Power sufficient to determine whether of them had the Juster Cause Besides even where the War is manifestly Just it is a very nice thing by any outward token to judge which is the Just Rule or Measure either of defending our selves of recovering our own Right or of exacting punishments So that it is agreed that it is much better to leave it to the Honesty and Conscience of the Princes engaged to determine of these things among themselves than to refer it to the arbitrement of others Thus did the Achaians demand of the Roman Senate How it came to pass that what had formerly been acted by the Right of War should now fall into debate Now besides this of licence and impunity there is another effect of a Just and Solemn War namely
Dominion whereof we shall treat hereafter V. Testimonies of these effects But the licence that a Just War gives to one Enemy against another extends either to his person or his Estate And first to the person of an Enemy and hereof we have many testimonies recorded in the most approved Authors The Greek Proverb acquitteth the Souldier for what he doth against the person of an Enemy in the time of War in that it saith He guiltless is that doth his Enemy kill Euripides The custom of the ancient Grecians was not to wash nor to eat with an Homicide much less to joyn with him in any Duties that were holy and yet with him that in the War had killed an Enemy it was lawfull And in all Authors we read That to kill was Jus Belli the Right of War Marcellus in Livy justifies himself by this Right Livy 26. Id. 21. Lib. 28. Quicquid in hostibus feci jus belli defendit Whatever I did among mine Enemies the Law of Arms doth defend me in And so doth Alcon justifie himself and his Soldiers to the Saguntines Suffer your Wives and your Children to be dragged about and ravished before your faces according to the licence given in Wars for better it is with patience to endure those out-rages than that they should put you all to the sword And the same Livy having declared the general Massacre of the Astapenses adds That it was done by the Right of War Cicero likewise in his Oration for King Dejotarus pleads thus And why O Caesar should he be suspected as thine enemy who could not forget that whereas thou mightest have adjudged him even to death by the Law of Arms thou madest both him and his Sons also Kings And in another place he confesseth That whereas Caesar Pro M. Marcel by the Right of a Conquerour might have sentenced them all to death Lib. 7. he out of his Princely Clemency had preserved them Caesar in his Commentaries acquainted the State of the Hedui That he saved their people whom by the Law of Arms he might have slain Josephus also in his Jewish War accounts it an honourable death to dye in the War but he means to die by the Law of Arms or at the Will and Pleasure of the Conquerour Of the same mind was Papinius Non querimur caesos haec bellica jura vicesque Armorum Nor for our slain we grieved are This is the Law of Arms the chance of War Yet we must observe That when these Authors seem to justifie such acts of cruelty by the Right of War they do not altogether free them from sin but from being punishable as sins Annal. lib. 1. as will appear by other places in the same Authors It was well said of Tacitus In pace causas merita spectari ubi bellum ingruat innocentes ac noxios juxta cadere Peace doth usually distinguish of Causes and Merits and accordingly dispenseth rewards and punishments but in War the nocent and innocent do fall alike And in another place speaking of a Common Trooper who demanded of his Captains a Reward for killing his own Brother in the head of his Enemies Troops he saith Nec illis aut honorare eam caedem jus hominum nec ulcisci ratio belli permittebat Neither would the Laws of humanity suffer them to reward so unnatural a murther nor the Law of Arms permit them to punish it For that which Seneca observes is very true Troad See the second Book chap. 1. sect 1. Quodcunque libuit facere victori licet What e're he will that may a Victor do And what he notes in his Epistles Epist. 96. Quae commissa capite luerent tum quia paludati fuerunt laudamus What in another we punish with death that in a Souldier under command we commend wherewith accords that of St Cyprian Epist. 2. Homicidium cum admittunt singuli crimen est virtus vocatur cum publicè geritur That which in a time of peace is a capital crime in the time of War is accounted valour but it is not the nature of their fact but the exorbitancy of their cruelty that renders Souldiers unpunishable And a little after he adds Consensere jura peccatis coepit esse licitum quod publicum est The Laws do connive at sin which is therefore sometimes reputed innocence because licensed by publick authority And in this sense it is true what Lactantius saith of the Romans Institut 4. c. 9. Pharsal that they did Legitimè injurias inferre Infest others lawfully As that also of Lucan Jusque datum sceleri which we may translate in the words of David Wickedness is practised as by a Law VI. All that are found among enemies are liable to the effects of War But this Right of licence or impunity in War extends it self very far for it reacheth not only to such as are actually in Arms nor unto such only as are Subjects to these Princes against whom the War is made but unto all such as reside within their Territories or Dominions as may appear by that form so often used in Livy Hostis sit ille quique intra praesidia sunt ejus Let him and all that live under his protection be held as enemies Livy lib. 37. And no marvel seeing that by all such we may be damnified which in a War that is lasting and universal is sufficient to justifie the licence here spoken of otherwise than in Reprizals or Pignorations which as I have said was at the first introduced after the manner of Taxes for the payment of publick debts Wherefore it is not to be wondered at if as Baldus notes This licence in War be much greater than that in Pignorations Nor is there any question but that Strangers coming into the Enemies Territories after the War is proclaimed and began may be persecuted as Enemies VII Though they come before the War began But as for those that went thither before the War was proclaimed it is thought fit by the Law of Nations that they should have some time allowed them to depart thence with their Goods for so we read of the Corcyraeans That before they laid close siege to Epidamnum Liv. l. 25. Thucyd. lib. 1. they gave warning to all strangers to depart or to be held as Enemies VIII But natural Subjects every where unless protected by another Prince But such as are true and natural Subjects if we have respect only to their persons they may in all places whatsoever be persecuted because as we have already shewed when War is decreed and denounced it is declared to be against a Prince or Nation and the People thereof So the Romans in their Decree against King Philip did Will and Command that War should be proclaimed against him and the Macedonians under his Dominions Now he that is an Enemy may by the Law of Nations be every where persecuted according to that of Euripides Vbicunque prensum jura laedi hostem sinunt
A Foe where ever found destroy'd may be And that of Marcianus Renegadoes where ever they are met may be killed as Enemies And therefore whether it be in their own Country or in the Enemies in a desart that belongs to none or on the Sea where ever it be if found they may lawfully be killed But yet that it is not lawful to kill them or to spoil them in a Country that is in peace this ariseth not from any Right that belongs properly to their persons but from the Right of that Prince under whose Power and Protection they are For all Civil Societies have a Right to Ordain That no force or violence be offered against any in their Dominions unless the differences be first examined in a judicial way as we have already proved out of Euripides Si crimen istis aliquod hospitibus struis Jus impetrabis vi quidem hinc non abstrahes If charge thou can'st these Guests with great offence Thou may'st have Right but shalt not force them hence Where Laws flourish and Courts of Justice are open there every man is punished according to his deserts and then this promiscuous licence of injuring each other ceaseth which was only granted amongst Enemies in times of War only Whilst the War raged between the Romans and the Carthaginians it hapned that seven of the Carthaginian Gallies rode in a Port belonging to Syphax who at that time was in League with both Nations At which time Scipio with two of the Roman Gallies was by storm driven into the same Harbour before the Carthaginians could weigh anchor It had been lawfull for the Carthaginians to have taken or sunk them before they had entred the Port But being entred into the Kings Chambers they durst not assault them lest thereby they should have violated the League with Syphax The like we read of the Venetians who would not suffer the Grecians to injure the Turks in any Port belonging unto them IX This Right extends to Women and Infants But to return to what we have in hand how far this licence of Murther Spoil and Rapine extends it self in the time of War will appear in that Women and Infants are subject thereunto I shall not hitherto refer the slaughter that the Israelites made of the Women and Children at Heshbon Deut. 11.34 Nor that which they were commanded to do against the Canaanites and their Associates the Amalakites whereof Josephus speaking of the Acts of Saul writes thus He proceeded even to the slaughter of Women and Children accounting nothing therein too cruel or inhumane First because they were Enemies and Secondly because it was done at the special command of God whose Right over men is far greater and more unquestionable than that which men claim to have over beasts as we have elsewhere said No rather that which comes nearer to testify the manners and customes of the Nations as to this is that of the Psalmist Psal 136. Blessed is he that taketh thy children and casteth them against the stones Agreeable to that of Homer Illisa corpora terrae Infantum saevus dum concutit omnia Mavors When dreadful War whole Nations doth lay wast Then Infants bodies ' gainst the Earth are dasht And that also which Severus out of the same Homer applied to the Britains Nec qui latet abditus intra Viscera Matris adhuc fugiet crudelia fata Nor can the Babes unborn Escape Wars rage being from their Mothers torn The Thracians of old having taken the City Mycalessus put all to the Sword both Women and Children as Thucydides relates So did the Macedonians when they took Thebes as Arianus tells us Thus did the Romans also when they had taken the City Ilurgis in Spain destroy all without distinction of Age or Sex as Appianus testifies The like did Scipio when he took Numantia The Emperour Julian having taken by storm the City Majozamaltha destroyed all making no distinction of Age or Sex Quicquid impetus reperit potestas iratorum absumpsit Whatsoever force found was sacrificed by the Swords of the enraged Germanicus Caesar is said in Tacitus to depopulate all the Villages of the Marsi a people of Germany with Fire and Sword so that neither Sex nor Age could find pity And the Emperour Titus when he conquered the Jews exposed their Women and Children to be devoured by Beasts in their publick shews and yet were neither of these two Princes esteemed to be of a fierce and cruel nature but were only carried away with the customes of those times No marvel then if old men did sometimes undergo the same fate as Priamus did who was killed by Pyrrhus X. And to Captives Neither were Captives exempted from the rage of the Conquerours when Elisha the Prophet had led the Syrians blindfold to the Gates of Samaria as Josephus relates the story King Joram demanded of the Prophet whether he should kill them but the Prophet answered that it was not lawful for the King so to do Solus enim Bello superatos hostes occidi fas est For those Enemies only may be lawfully killed that are taken in War Pyrrhus in Seneca according to the custome of the Nations then in use pleads thus Troad Lex nulla capto parcit aut poenam impedit No Law from punishment doth slaves protect Neither doth this licence extend to Men only but even to Women if taken in War according to that of Scylla concerning a Woman taken Prisoner At Belli saltem captivam lege necâsses By th' Law of Arms thy slave thou mightst have kill'd To the same purpose is that of Seneca before quoted to be understood for it was spoken of Polyxena who being taken Captive might have been slain yet is the advice of Horace to be preferred Vendere cum possis captivum occidere noli Kill not thy slave in case thou canst him sell Wherein he takes it as granted that kill him he might though to sell him were better hence it is Terence Adelph Act. 2. Scen. 1. that they are called servants because they are saved alive whereas by the Law of Arms they might have been killed thus were all the Captives taken in Epidamnum put to death by the Corcyraeans as Thucydides relates and seventy thousand Slavonians we read of that were put to the Sword by the Emperour Otto and of five thousand Captives that were at once put to death by Hannibal Dion 47. And Hirtius in his African War brings in a Caesarean Captain giving thanks unto Scipio for sparing his life in these words Tibi gratias ago quod mihi vitam incolumitatemque belli jure capto polliceris I thank thee noble Scipio for that being thy slave thou art pleased to engage thy word for my life and safety Neither is this licence of killing our Captives confined to any space of time although by Municipal Laws it be restrained in some places more in some less XI Yea and to Suppliants No nor Suppliants as we are instructed by many
examples in all Histories as namely by the example of Achilles in Homer of Mago and Turnus in Virgil which do therefore stand yet upon record to justifie the like practice hereafter by the Right of War For St. Augustine himself commending the Goths for sparing Suppliants De Civit. Dei c. 2. and such as fled unto Temples for protection yet saith That which by the Right of War they might do they thought unlawful for them to do Neither are they always received to mercy that beg it witness the Grecians that sided with the Persians against Alexander at that great Battel fought at the River Granicum Ann. 12. And the Uspenses in Tacitus Who craving leave but to depart their City with their Bodies free were rejected by the Conquerours because it would have been thought cruelty to have killed them in cold blood after they had yielded themselves and hard to keep a Guard upon so great a multitude therefore they chose rather to let them perish by the Sword according to the Law of Arms. Observe here also the Right of War XII Yea and to such as yield without conditions Neither do they always find mercy that surrender themselves without any condition at all but even these are sometimes put to death as the Princes of Pomeria were by the Romans the Samnits by Sylla the Numidians yea and Vercingentoriges himself by Caesar Nay it was almost the perpetual practice of the Roman Generals upon the dayes of their Triumph Dion 45. Livy 2. Cicero in Ver. 5. Livy lib. 28. Annal. 1. to put to death all the Captains and other Commanders whether they were taken Prisoners during the War or had yielded themselves as Cicero in forms us in his fifth Oration against Verres which both Livy and Tacitus confirm Nay the same Tacitus records it of Galba That he caused the tenth Man to be killed of those whom upon submission he had received to mercy And Caecina upon the surrender of Aventicum caused Julius Alpinus to be put to death as being the principal instigator of the War but the rest of the Citizens he left to either the mercy or the severity of Vitellius XIII This right not to be referred to other causes It is the usual custome of Historians to ascribe the cause of this cruelty and outrage against Captives or Suppliants either to the like cruelty done by them unto others or to their obstinacy in resisting them But these are rather pretences than just causes for Retaliation properly so called is not to be executed but upon the same persons that offended as hath been already said where we discourst concerning the Communication of Punishments But contrariwise in War this Right of Retaliation is often exercised on those who were in no measure guilty of the crime for which they are said to be punished This custome is thus described by Diodorus Siculus The chance of War being on both sides equal neither party can be ignorant of this that in case they be vanquished what they intended to do against their Enemies had they been Victors that they must be contented to suffer from them Thus did Philomelus the Phocensian General perswade his Enemies to refrain from a proud and insolent revenge by threatning to exact the like in case the Victory fell on his side But as to the other pretence which is usually pleaded namely an obstinate endeavour to defend their own party Goth. l. 1. it is so far from being punishable as a crime as the Neapolitans alledged to Belisarius in Procopius that according to the Ancient Roman Discipline it was ever accounted a capital crime to do otherwise especially if we were engaged therein either by some natural obligation or by an honest and deliberate choice for in these cases they seldome admitted of any excuse were the fear or danger never so great Polyb. l. 1. 5. Liv. lib. 24. Praesidio decedere apud Romanos capitale est To desert a Garrison saith Livy was ever accounted among the Romans a capital crime Every man therefore may make use of this rigour and severity so far as he sees it may conduce to his own advantage and is therein justified before men by that common right and licence of Nations whereof we here treat XIV It extends also to Hostages This right or licence doth sometimes extend it self to hostages and that not only to those who voluntarily give themselves as Pledges for the performance of Articles agreed upon but unto those also who are delivered up by others Thus we read of two hundred and fifty hostages slain by the Thessalians and of three hundred slain by the Romans Plut. de claris Mulierib Dionys 16. Tac. An. 12. 1 Mac. 13.17 Hist 4. where also by the way we may observe That sometimes Children are admitted as Hostages as by the example of Simon the Maccabite we may learn and sometimes Women as by the Romans in the time of Porsenna and by the Germans in Tacitus XV. To kill by poyson unlawful As there are many things tolerated by the Law of Nations in this sense that we now speak of which by the Law of Nature are prohibited so are there many things forbidden by the former which by the latter are tolerated For if we respect the Law of Nature only if a man have deserved to be put to death it matters not much whether it be by the Sword or by Poyson by the Law of Nature I say though otherwise it be far more noble so to invade another mans life as to give him an equal power to defend himself But this is not due unto every man that hath deserved to dye But by the Law of Nations if not of all yet of the greater and better part of them it is not lawful to take away the life no not of an Enemy by poyson which Custom was introduced for a general good lest dangers which are too rife and frequent in War should be beyond all measure multiplied And very probable it is that this Law was first enacted by Kings and Emperours whose lives as they are principally guarded by Arms so are they most easily endangered by poyson were it not for the severity of the Laws and the sear of infamy Lib. 42. This Livy calls a clandestine villany speaking of Pyrrhus And Claudian concerning the design of Pyrrhus's Physician who offered Fabritius to poyson him calls it a detestable act Offic. l. 3. not fit to be spoken so doth Cicero glancing at the same Story which offer of the Physician the Consuls not only rejected but discovered unto Pyrrhus not so much for his sake as to prevent the reproach and scanâ—al that might ensue to themselves lest it should be said of them That whom they could not conquer by true valour they had by treachery destroyed Plut. vit Pyrrhi Or as Aulus Gellius recites the Epistle of the Consuls out of Claudius Quadrigarius Communis exempli fidei ergo visum est We think it
not fit for common examples and our own honour's sake to admit of so great a wickedness For as Valerius Maximus well observes Armis Bella Lib. 3. c. 8. Lib. 5. c. 5. Annal 3. non Venenis geri debent Wars should be waged by Arms and not by Poyson Insomuch that when the Prince of the Catti made offer to poyson Arminius Tiberius rejected it therein equalling himself in honour to the old Roman Emperours They therefore that hold it lawful to destroy an Enemy by poyson as Baldus by the authority of Vegetius did do regard the mere Law of Nature but overlook that Law which is established by the voluntary consent of Nations XVI As also by impoysoning Waters or Weapons Somewhat different from this manner of poysoning because it hath something of force in it is the anointing the Heads of Spears with poyson thereby to enforce death upon a double account which as Ovid records was much in use among the Getae The like testimony doth Pliny give of the Scythians For they anointed their Arrows saith he with poison compounded of the putrified Gore of Vipers and humane bloud immedicabile id scelus How this waâ— prepared we may learn our of Rhodoginus c. 10. 23. See Lyps Ann. upon Plin. l. 11. c. 53. a mischief incurable because it made every slight hurt mortal Lucan testifies the same of the Parthians so doth Silius of some of the Africans and Claudian particularly of the Ethiopians It was observed that in India Alexander's Soldiers being wounded by these impoysoned Arrows dyed immediately Yet was this also contrary to the Law of Nations though not of all Salisburiensis lib. 8. c. 20. yet of these of Europe and of such others as are civilized like them amongst whom the use of poyson was never by any Law allowed although among Pagans and Infidels it hath sometimes been usurped Therefore in Silius's account this was but ferrum infamare veneno the shame and reproach of valour And therefore Ilus Mermerides in Homer denied poyson to Vlysses's Spears for fear of a revenge from the Gods Immortal So also the impoysoning of Springs Florus reckons to be unlawful being repugnant not only to the Constitutions of men but to the Laws of God Where we may note as we have already elsewhere That prophane Authours do usually ascribe the Laws of Nations unto the Gods Nor will it seem strange that there should be such a tacite agreement amongst Nations for the lessening of the dangers that attend the Wars when we find it anciently covenanted between the Chalcidenses and the Eretrienses Strab. l. 10. That during the War between them it should not be lawful to cast or to dart any thing XVII But not otherwise to corrupt Waters But it is otherwise where waters are without poyson so corrupted that they cannot be drunk as by throwing Carrion into them and dead Bodies or asbestus which Belisarius made use of in the Siege of Auximum or Lime which the Turks did at Dibibras or such like Proc. Goth. l. 2. De Piscatu l. 4. For this was approved of by Solon the Amphictyones and others against the Barbarians and as Oppianus records was usually done in his Age it being no more than if the Current of a River or the Veins of Water that feed a Well should be cut off or turned some other way which by the Law of Nature and the general consent of Nations are held lawful XVIII Whether it be against the Law of Nations to use Murtherers But whether the Law of Nations do justifie the killing of an Enemy privately that is by sending one purposely to kill him in his own Quarters is often questioned For the resolving of which doubt we must distinguish of the persons sent for in case he be such a one as hath any ways given his faith either expresly or tacitely unto him whose life he attempts as if he be a Subject that shall be hired to kill his Sovereign a Vassal his Lord or a Souldier his General or if he be received by him in protection as a Suppliant a Stranger or a Renegado yea if the person sent owe any faith to him whom he is sent to kill then the Law of Nations doth not only condemn the person that is the instrument for his treachery and perfidiousness but those also that make use of him For although in other matters he that makes use of wicked instruments though against an enemy may be found guilty before God yet is he not so before man For he is not thereby said to violate the Law of Nations because in this Case Mores Leges perduxerunt in potestatem suam Custom hath prevailed above the Laws Et decipere pro moribus temporum prudentia est And to deceive as Pliny saith if it accord with the manners and customs of the Age we live in Lib. 8. Epist ad Rufinum is not a crime but a Vertue no knavery but commendable policy Yet doth not this custom extend it self so far as to the killing of an enemy For he that shall make use of another mans treachery in such a case doth not only sin against the Law of Nature but of Nations Curtius l. 4. This is plain by what Alexander wrote to Darius Impia Bella suscipitis cum habeatis Arma licitamini hostium capita It is an impious War that ye wage against me for having Weapons to fight ye chuse rather to purchase with money the lives of your enemies And presently after he complains Lib. 14. That they did not observe the Law of Armes And in another place I ought to persecute him even unto death not as an open Enemy but as a secret Murtherer Liv. l. 42. Hither we may refer that of Livy concerning Perseus of whom he complains That he waged not a just and open war with a mind becoming a Prince but that he used all manner of base and clandestine ways to destroy his Enemies like a Thief or a Poysoner All which Marcius Philipus Liv. l. 44. how odious they are to the Gods themselves would at length be seen by the event of his Fortunes Agreeable hereunto is that of Valerius Maximus concerning the murder of Viriatus Lib. 9. c. 7. which gave occasion to a double accusation of perfidiousness the one by his friends by whose hands he was killed the other in Quintus Servitius Caepio the Consul who by encouraging them to do it by his promise of impunity became himself the Authour of the fact and did therefore justly lose the glory of the Victory For Victoriam non meruit sed emit He deserves not the honour of a Triumph that buys the Victory Wherefore when the Murtherers demanded the reward promised them by the Consul Caepio it was answered That it was never thought a meritorious act by the Romans for Souldiers to kill their General as Eutropius testifies Now the reason why the Law of Nations Eutropius that allows us to
make use of the treachery of others in all other cases doth not allow of it in this case is the very same that was before given in the case of poyson namely To restrain the dangers that attended Kings and Princes When one told Eumenes Just lib. 14. That his Enemies had hired one to kill him He would not believe that any General or inferior Captain would give so ill an example against himself And in another place the same Justine declares Just Lib. 12. That when Bessus had killed King Darius it was not to be endured for examples sake because it was the common cause of all Kings For as Seneca well observes Regi tuenda est maxime Regum salus A Kings chief care is the defence of Kings In a solemn War and amongst those who have a right to denounce a solemn War it is not lawful by the Law of Nations privately to kill an Enemy but where there is no solemn War it is by the same Law of Nations accounted lawful that is unpunishable Annal. l. 11. Tacitus denies peremptorily That the Plot that was laid against the life of Gannascus was at all Lib. 7. degenerous because he was a Traitor And Curtius was of opinion That the guilt of Bessus in killing Darius did make the treachery of Spitamenes appear the less odious for that nothing could be thought wicked that was done against a Regicide So likewise Ammianus concerning Florentius and Barchalba who had surprized Procopius the Traitor Si Principem legitimum prodidissent vel ipsa Justitia jure caesos pronunciaret si rebellem oppugnatorem internae quietis ut ferebatur amplas ei memorabilis facti opportuerat deferri mercedes If it had been their lawful Sovereign that they had betrayed the Laws had justly sentenced them to death but if he were a Rebel or a Disturber of the peace of his own Country as was said ye ought to give him a reward worthy of so memorable a fact Thus is Artabanes highly commended in Procopius for killing Gontharides as we may read at the latter end of the second of his Vandal History So perfidiousness or treachery against Thieves and Pyrates though it be not altogether blameless yet is it not by the Law of Nations punishable because committed against such as are Enemies to humane Society But what if they that are sent to kill an enemy privately do owe him no faith But not if he owe him no faith But not if the person sent owe no faith to him whom he is sent to kill nor are any ways obliged unto him Surely then by the Law of Nations it is lawful for them to kill him if they can even in his own Quarters Thus Pipin Father to Charles the Great of France attended with one only of his Guard passed the Rhine and killed his enemy even in his own Chamber The like was attempted by one Theodotus an Etolian upon Ptolomy King of Egypt which Polybius commends as no unmanly attempt Such also was that Heroick enterprize of Q. Mutius Scaevola who was in Plutarch's esteem A man accomplished with all vertuous endowments which attempt he thus defends Hostes hostem occidere volui I being an Enemy would have killed an Enemy Livy l. 2. Lib. 3. c. 3. Porsenna himself acknowledged this to be an act of true valour Valerius Maximus commends it for a brave and gallant resolution So doth Cicero in his Oration for Publius Sextus because to kill an Enemy wheresoever we find him is lawful both by the Laws of Nature and Nations neither doth it make any difference how many they are that either thus act or suffer Six hundred Lacedemonians we read of that with Leonides their King marched directly through the Camp of five hundred thousand of their Enemies even unto the Kings Pavilion Just l. 2. Zozimus l. 4. the same may be done by fewer A reward was promised by the Emperour Valens to him that should bring in the head of any Scythian whereupon a Peace immediately ensued They were not many that circumvented Marcellus and his fellow Consul and slew them Livy 27. Tacit. Hist l. 5. De Off. l. 1. c. 40. Jos Anc. 15. Lib. 4. Lib. 24. and that had likely to have killed Petilius Cerealis even in his Bed Ambrose highly commends Eleazer who seeing a mighty Elephant higher than all the rest assaulted him supposing that he that sate upon him had been the King Not much unlike was that attempt that Theodosius made upon Eugenius recorded by Zozimus Nor that of the ten Persians against the Emperour Julian attested by Ammianus Neither are they only that make these attempts excusable by the Law of Nations but they also that imploy them Those Roman Senators that were so renowned for their Wars Livy l. 2. were reputed the Authors of that gallant attempt made by Scaevola Neither is it to the purpose to object that such men being taken are put to exquisite torments for this happens not for that they violate the Law of Nations but because by the Law of Nations every thing is lawful that is done against an Enemy and all Conquerours are more or less severe according as it shall conduce to their future advantage for thus are spies dealt withal yet notwithstanding it is held lawful by the general consent of Nations to send out such as Moses did Joshua into the land of Caanan It is the custom of all Nations to kill spies saith Appian and that justly sometimes by such as have apparently a just Cause to make War but by others it is only lawful by that licence which the Law of Arms sometimes gives But if there be any that will not make use of such instruments though offered this proceeds rather from the Magnanimity and the confidence of him that makes the War in his own strength than from an opinion he hath that by the Law of Nations it is unjust XIX Whether ravishment be in such a War lawful The ravishing of Women is by the Law of Nations sometimes permitted in War and sometimes forbidden They that permit it do respect only the injury done to the body of an Enemy which by the Law of Arms they think ought to be subject to the Will of the Conquerour But others much better look not unto the sole injury done unto the body of an Enemy but to the very unbridled act of Lust which conduceth nothing either to the security of the Conquerour or to the punishment of the Enemy and therefore should be no more unpunishable in War than in Peace and this is the Law if not of all Nations yet at least of the better and more civilized amongst them Marcellus before he took Syracuse took special care of the preservation of the Chastity Aug. de Civit. Dei lib. 2. even of his Enemies And Scipio as Livy testifies told his Souldiers That it much concerned his own honour Lib. 26. and the honour of the people of Rome That
great or small there is no change of Dominion but by the Authority of a Judge CHAP. VII Of the Right over Captives taken in War I. That Captives taken in a solemn War are by the Law of Nations slaves II. Yea and their posterity III. That whatsoever is done unto them is unpunishable IV. Even the incorporeal things that belong to Captives may be acquired by War V. The cause why this was ordained VI. Whether Captives may make their escape VII Or resist their Lords VIII That this Right is not allowed in all Nations IX Nor now amongst Christians and what succeeds in its room I. Captives in a solemn War naturally slaves THERE is no man by nature servant to another that is no man in his primitive state or condition considered without any fact done by himself whereby his natural liberty is impeached as I have elsewhere shewed * Videlib 2. ch 22. §. 11. in which sense our Lawyers may be understood when they say that to be another mans slave is against nature But that this kind of slavery might at first be introduced by some fact done namely by some voluntary agreement or for some crime committed is not repugnant to natural justice as we have elsewhere also shewed But by that Law of Nations Book 2. ch 5. §. 27. whereof we now treat the word Servitude is of a larger extent both as to persons and as to its effects for as to the persons not only they that surrender themselves to the will of the Conquerour or that oblige themselves by promise so to do but all persons whatsoever that are taken in a solemn War as soon as they shall be brought within our Garrisons are altogether accounted Captives or Slaves as Pomponius hath well observed Neither is it to any purpose to plead that they never bare Arms against us nor declared themselves Enemies by any Hostile Act seeing that in this case Par est omnium fortuna Every mans condition is alike yea even the condition of those who by mere fate happen to be found in the Enemies Territories at such time as the War unexspectedly brake forth Lib. 2. Polybius speaking of Captives taken in actual Arms puts the Question thus Quid patiendum est his ut justa supplicia pendant What must these men suffer that their punishment may be just If any man say they may be sold with their Wives and Children he answers At haec belli lege etiam illis ferenda sunt qui nihil impii commiserunt But so saith he may they be by the Law of Arms who never did us hurt Philo notes the very same where he saith That many good men lose their natural liberty by occasions that are involuntary and merely accidental Dion Prusaeenses recounting the several ways whereby a man may get Dominion assigns this as the third When a man hath taken a Prisoner in time of War that never did any act of hostility and by that means makes him his slave Oppianus de piscatu l. 2. So Children being taken in War may be led away and made slaves Servius upon the first of Virgils Aeneads speaking of Hesione the Daughter of Laomedon whom Hercules slew as he was going out of Troy saith That she was taken Prisoner by the Law of Arms and given to Telemon Hercules his companion And in another place he tells us That the Grecians refused to deliver her back to the Trojans saying she was a Prisoner of War II. Yea and there posterity Neither are the persons of Men and Women only thus taken made slaves but their posterity for ever for whosoever is born of a Woman after her Captivity is a slave born for Partus sequetur ventrem The Child will follow the condition of the Mother Martianus accounts all those for slaves by the Law of Nations who are born of Bond-women And Tacitus speaking of the Wife of Arminius a German Prince who had been taken Prisoner by Germanicus saith That she had Vtrum servitio subjectum meaning that whatsoever Children were born of her were bond-slaves III. Whatsoever is done unto such is unpunishable The effects and consequences of this Right are infinite so that there is nothing so unlawful but the Lord may do it to his slave as Seneca the Father notes * 1. Controv. 5. there are no Torments but what may with impunity be imposed on them nothing to be done but what they may be forced to do by all manner of rigour and severity so that all kinds of cruelty may by the Law of Nations without controul or appeal be exercised upon Captives were it not that this licence is somewhat restrained by the Civil Law It is universally indulged by all Nations to the Lord to have power of life and death over his slave saith Cajus the Lawyer but he tells us withal That the Roman Laws did limit otherwise unbridled power within their own Territories Quid non iustum Domino in servum What may not the Lord do unto his slaves saith Donatus upon Terence yea Andr. Act 1. Scen. 1. not only the person but all that is taken with him are lawful prize Ipse servus qui in potestate alterius est nihil suum potest habere He that is a slave saith Justinian Libro omnem virum bonum liberum esse and under the power of another can have right to nothing that was his before So likewise Philo He that is a Captive loseth his right to all other things no less than the power over himself IV. Even the things incorporeal of the slave are transferred to the Lord. Hence then their Opinion may be confuted or at least restrained who hold that things incorporeal cannot by the Law of Arms be acquired * Lib. 6. cap. 9. 2. Val. Maximus records it of Scipio Nasica That whereas being Consul he was taken prisoner by the Carthaginians at Lipara and so by the Right of War had lost all yet fortune afterwards smiling upon him he recovered all and was again created Consul It is true that primarily and by it self things incorporeal cannot by War be gained but they may be lost as to the person whose they formerly were But yet we must here except all things that do proceed from some singular propriety in the person taken which by no means can be alienated as the right of a Father to his Son for such Rights if they do not remain with the person are altogether extinct V. The reason why this Instituted Now all this unlimited Power is by the Law of Nations granted for no other Cause than that the Conquerour being allured by so many advantages might be willing to forbear that utmost cruelty which they may lawfully use by killing their Captives either in the heat of fight or afterwards in cold blood The name of servant as Pomponius tells us did at first arise from the custom of Generals who sold their Captives and thereby preserved them from being slain Servi quasi servati
said of particular persons may also be said of Cities and people That if they were free they may recover their freedom If the power of their Friends and Associates be able by foâ—ce of Aâ—ms to release them from the power of their enemies But if the very Body of the people that constituted that City be dissolved I believe that they that succeed are not to be accounted the same people neither are those things that formerly belonged to that City to be restored unto them by this Right of Postliminy according to the Right of Nations because a Nation like a Ship by the dissolution of its parts doth absolutely perish for that its whole Nature consists in the perpetual Conjunction of all its Mâ—mbers Wherefore it was not the same City of Saguntum though the place where it formerly stood were restored unto the ancient Inhabitants eight years after its dissolution Neither was Thebes the same City after that Alexander had sold the Citizens for Slaves whence it follows That what the Thessalians owed unto the Thebans before such dissolution could not justly be claimed by those Thebans by Postliminy and that for a double reason First Because they were then a new people secondly Because Alexander whilst he was Lord over them had a power to alienate that Right and accordingly had done it and lastly A Debt is not to be reckoned among those things which return by Postliminy Not much unlike to what we have said concerning Cities is that which the ancient Roman Laws concluded of Marriages namely That they were by captivity dissolved neither could they be restored by postliminy but must be redintigrated by the first consent of both parties But it is otherwise among Christians witness that of Pope Leo unto Nicetas Bishop of Aquileia concerning such Marriages namely That as in Slaves or Fields or even in Houses and Possessions the right and title of them is preserved for those that are Captives in case they shall return out of captivity so also in Wedlock if either party be married to another let them be reformed See what Hincmar hath written to this purpose in his Tract concerning the Divorce of Lotharius and Terberga to the thirteenth Interrogatory and the Answer of Pope Stephen in the second Tome and nineteenth Chapter of the Councils of France X. To those that return what Rights arise from the Civil Law By what hath been already said it is no hard matter to understand what manner of right by the Law of Nations Postliminy gives to free men Moreover this very same right may by the Civil Law so far as it belongs to things agitated within the City be both restrained by adding some exceptions or conditions and also enlarged unto other profits and advantages as occasion serves As by the Roman Civil Law Fugitives are exempted out of the number of those that were capable of this right so were also the Sons of a Family over whom the Father was conceived not to have lost that Paternal power and authority which was peculiar to the Romans and that for this reason as Paulus observes Because to Roman Parents their Military Discipline was ever dearer than their own Children whereunto agrees that which Cicero records of Manlius That he strictly upheld the Discipline of the Roman Empire though to his own grief that so he might the better provide for the safety of the City wherein was also bound up his own which made him prefer the Sovereign Right of Majesty which was then in himself before the bonds of Nature or the tenderness of a Father towards his own Son Again some diminution of this Right of Postliminy is that which was ordained first by the Athenians and afterwards by the Romans namely Vt qui redemptus est ab hostibus Redemptori serviat donec pretium reddiderit That he that was redeemed should serve his Redeemer until he should have repaid his ransome But this was made in favour to the poor Captives lest if there should be no provision made for the recovery of the money so paid many Prisoners should have been left in perpetual slavery among their enemies But yet even this very slavery was many ways mitigated by the Roman Laws and at length by the last Law of Justinian it was limited to five years service neither could the money paid for his redemption be recoverable after the death of the party redeemed So also by any Contract of Marriage between the person redeemed and the person redeeming it was adjudged to be forgiven So if it were a Woman that was redeemed if the Redeemer did prostitute her Body the ransome was lost There were many other Laws made among the Romans in favour to those that would redeem Prisoners and to punish their Kinsmen for neglecting them Again this Right of Postliminy was by the Civil Law much enlarged in that not only those Rights in Postliminy which are allowed of by the Law of Nations are granted unto him that so returns but generally all things and all Rights are as intirely his as if he had never been within the power of the enemy And this was also the Attick Law for as we read in Dion Prusaeensis A certain man pretending to be the Son of Callias who had been taken Prisoner in the Slaughter at Acanthus and as he said been kept as a Prisoner in Thrace when he had made his escape to Athens claimed by Postliminy his inheritance from those that then had the possession thereof after his Father we do not read that any thing was pleaded against his Right only it came in issue Whether he were the Son of Callias or not The same Authour likewise relates That the Messenians after long captivity at length returning received both their liberty and Country Yea and those things which either by usucapion or redemption seemed to be taken away out of the Goods or through disuse to be deserted are all of them recovered by a Rescissory Action For under the Edict of making restitution to Ancestors he also who is under the power of Enemies is comprehended Nay farther the Cornelian Law provides for the Heirs of such as dye in captivity and conserves all their Goods as lawfully as if he that returned not were at that very time when he was taken dead Now were it not for these Civil Laws without doubt as soon as any man were taken Prisoner by the enemy his Goods would presently be theirs that had them in possession because Qui apud hostes est pro nullo habetur He that is under the enemies power is held for none And then if he that was taken should return he should receive nothing but such things as by the Law of Nations were due unto him by Postliminy But that the Goods of a Captive were confiscate and brought into the Treasury in case he had no Heir was a Law peculiar to the Romans only Hitherto we have treated of things that return now we shall speak of such things as are received by
ignorance of the Law is sometimes excusable and sometimes inexcusable All which do very well agree with what our Civilians tell us Not unlike unto this is another place of the same Aristotle De Arte Oratoria It is equity saith he that distinguisheth as well between manifest injuries and trespasses as also between these trespasses and mischances Whatever hurt is done without an ill intention and that could not be foreseen and prevented is merely a mischance that which might have been foreseen yet is done without any prepensed malice is a fault or oversight But what is done purposely and with a wicked intent is a manifest mischief or an open injury which deserves no pardon The Ancients digested all wrongs done into these three Forms as proceeding from either ignorance improvidence or wilfulness And Homer in the last of his Iliads speaking of Achilles saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. That he was neither ignorant inconsiderate nor mischievous The like distinction also we find in Marcian Delinquitur aut proposito aut casu aut impetu We commonly offend either purposely or casually or rashly Purposely as Thieves whose Trade it is to rob and kill men for what they have casually as when a man in hunting shoots at a Deer and kills a man rashly when men being drunk with wine or anger do usually fall out from words to blows De Offic. l. 1. The first and last of these Cicero thus distinguisheth In all acts of injustice saith he it is very considerable whether they be done by a too hasty eruption of passion which usually lasts not long and then ends in repentance or by judgment and premeditation For what proceeds from the former are like Mushrooms hasty in their birth and sudden in their fall and are therefore much more pardonable than those that grow up leisurely by premeditation A wise man will easily remit injuries De ira l. 1. c. 16. saith Seneca if he understand that they proceed not from a deep rooted hatred but from some sudden puff of passion And a little after Sometimes he sooner remits greater injuries than he doth lesser that is if the former be committed through rashness and not cruelty and the latter proceed from a long lingring and inveterate malice Neither will he punish the same sin in two several persons in one and the same manner if what the one did unadvisedly the other did wilfully Thus also Philo in his Exposition of some certain Laws Dimidiatum est facinus ubi non antecessit longa animi deliberatio That injury abates one half of its punishment that is unpremeditated of which kind are those that we are provoked unto by pure necessity which if it do not altogether justifie yet it extenuates the fault See Book 2. Chap. 20. Sect. 29. and Sect. 3. in this Chapter Lib. 5. de Prov. Thus the Samians in Thucydides told Alcidas the Lacedemonian when he would have put the Captives taken at Chios to death That it was not probable that he came to set Greece at liberty as he pretended who killed men no ways obnoxious unto him but only as they were associated with the Athenians whereunto also they were compelled by necessity So also St Chrysostome Strangers can forgive Strangers and one Enemy another if the wrongs done by them though never so great were involuntary and done by mere compulsive For as Demosthenes pleads against Aristocrates So strong and impulsion an Orator is necessity that it robs us of our freedom in judging what is and what is not to be done in any thing that lies before us wherefore such Cases are not to be too nicely sifted in a Court of Equity Concerning which Point the same Demosthenes doth much enlarge himself in his Oration concerning false witnessing against Stephanus To the like purpose is that of Thucydides also It is very probable saith he Lib. 4. that God himself is ready to forgive whatsoever is involuntarily committed either in War or in such other like cases of necessity For the Altars of the Gods have ever been as so many Sanctuaries for such to fly unto as have offended against their will for they only are to be persecuted as Malefactors who are willingly and professedly so but not they whom extreme necessity hath enforced to transgress Deut. 22.26 Thus it is by the Hebrew Laws as we may collect from that place wherein it is provided That he that had ravished a Damosel in the Field was to be put to death but in the Damosel there was found nothing worthy death because there was a force upon her Lib. 7. The Caerites in Livy humbly besought the Romans That they would not call that an act of counsel which was an act of pure necessity And Justine speaking of that execrable act of Sacriledge committed by the Phocians saith That the scandal thereof did more properly belong to the Thebans by whom they were reduced to that extreme necessity than to the Phocians It was the opinion of Isocrates That he that was enforced to steal or else to starve had an excellent Advocate to plead his Paodon meaning necessity Of the same opinion was Aristides in the like Case Difficilia tempora excusationem aliquam dant desciscentibus Leuct ◠The difficulty of the times is some excuse for those that fly away as the dangers of a close Siege a Famine or Plague are the best Pleas for Fugitives Philostratus excuseth the Messenians for not entertaining those that were banished Athens upon this ground That they durst not do it for fear of Alexander whom they and all Greece at that time stood in awe of The like doth he in Aristotle who being compelled through necessity to do some unjust act confesseth himself that he was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 half wicked but neither altogether unjust nor at all malicious Thus Cleon in Thucydides aggravates the crime of the Mityleneans The injuries they have done us were not casual nor compulsory but voluntary nay malicious but those injuries only are pardonable that are done unwillingly Philo therefore instructs his Prince thus That whensoever he was provoked to revenge or to punish he should learn how to distinguish between such as were notoriously and professedly wicked and those who were only evertaken with a sin or overborn by some violent temptations for to kill all that have in the least degree offended is brutish and savage Themistius in his Panegyrick upon the Emperour Valens thus applieth these distinctions to our purpose Thou saith he hast wisely distinguished O Emperour between acts of prepensed malice acts of humane frailty and acts of inevitable misfortune And although thou hast not at all conversed with Plato nor read Aristotle yet hath thy practice been much according to their Precepts whereby thou hast justified their Sayings Thou hast not inflicted the same punishment upon all sorts of Offenders upon those who were the first Authours of the War and upon those who in process of time were
Souldiers to satiate their anger with the bloud of the Conquered VII Even Enemies deserving death may be sometimes pardoned Yea though in strictness of justice they have deserved death yet oft-times it is more agreeable to the Goodness Modesty and Magnanimity of a Conquerour to forgive than to revenge Of this mind was King Theuderick in Cassiodore Those Wars have always succeeded well to me saith he which have ended moderately for he can never want the victory that knows how to use it with temperance and clemency Salust ascribes the prosperity of the Romans and the greatness of their Empire â—ib 2. c. 41. to nothing more than to their promptness to forgive And it was the advice of Tacitus Quanta pervicacia in hostem Annal. l. 12. tanta benificentia adversus supplices To shew as much love and kindness to poor suppliants as courage and resolution towards Enemies Yea and Seneca tells us That the most generous of Beasts did disdain to tear and prey upon things vile and abject Elephants and Lyons scorn things that are prostrate and pass by what they have overcome Lib. 4. The Author to Herennius hath an excellent saying to this purpose Our Ancestors saith he did very wisely observe this custome never to put any King to death whom they had taken in War but why because saith he it would seem unreasonable to use that power which fortune hath now given us to destroy them whom the same fortune not long before had so eminently favoured And why should I now punish them because they have led their Armies against me This having now got the victory I am willing to forget Quia viri fortis est qui de victoria contendant eos fortes putare qui victi sunt eos homines judicare ut possit Bellum fortitudo minuere Pacem humanitatis augere Because it is the part of a valiant Commander to esteem men as Enemies whilst they are able to contend for victory but being overcome then to pity them as men that so valour may end the War and humanity confirm the Peace But you will haply say what if he had overcome you would he have done so wherefore then should you spare him I answer Quia talem stultitiam contemnere non imitari consuevi Because it is my custome to contemn and not to imitate such folly Now if this Author did mean this of the Romans which is very uncertain because he intermixes many strange and indeed Romantick stories with some true ones it manifestly contradicts that which we read in the Panegyrick of Constantine the Son of Constantius He acts the part of a prudent man who having conquered Rebels can bind them to himself by a free pardon but he of a valiant man who having vext them can trample upon them Thou hast revived O Emperour that ancient confidence of the Roman Empire who triumphed in the death of those great Commanders whom they had taken in the War for in those days their Captive Kings after they had graced their triumphs by attending the Conquerours Chariot from the Ports to the most publick place of the City as soon as he turned his Chariot towards the Capitol were hurried away to Execution Only Perseus upon the intercession of Paulus Aemilius to whom he had yielded himself escaped the severity of this custome but the rest having their eyes put out remained for ever after in Chains teaching thereby other Kings rather to preserve their faith and friendship with the people of Rome than to exasperate their justice But these things are written somewhat too loosely Josephus in his History concerning the death of Simon Bar-jorae testifies the same severity of the Romans but he speaks it of such Captains and Commanders only as was Pontius Samnis but not of such as carried the titles of Kings whose words sound thus The conclusion of the triumph was after that the triumphant Chariot was come to the Capitol for there by the Ancient custome the Conquerour was to stay till tidings were brought of the death of that great Commander whom he led in triumph who having an halter cast about him was presently drawn into the Market-place his Keepers whipping him forward for in that place by the custome of the Romans such as were condemned for Capital crimes were put to death and there executed So soon then as it was declared unto the Emperour that his Enemy was dead they immediately proceeded to perform all other the Rites that were in those cases provided very joyfully Orat. in Ver. The very same ceremonies doth Cicero also recite in his Oration concerning Punishments Concerning great Commanders thus Executed Histories afford us examples enough and some few of Kings also as of Aristonicus Jugurth Artabasdus I should be loth to revive this obsolete custome Jos Ant. l. 5. c. 1. Dion yet we read that Joshua put to death those Kings that he took Captives And Dion relates of Sossius That he whipt Antigonus with rods after be had fastned him to his Cross But withal the same Historian wisely adds Which no King ever suffered by any of the Roman Conquerours The same History we may also read in Josephus Ant. l. 15. Eutropius likewise records it of Maximianus Herculius that having slain the Francks and Almains and taken their Kings Captives He exposed them to be devoured by wild Beasts So doth Ammianus concerning a King of the Almains who being taken Captive was crucified Yet even among the Romans there were divers Kings besides Perseus that escaped the severity of that custome as Syphax Gentius Juba and in the time of the Caesars Caractius and others Whence it may appear that the Romans though as Cicero and others blame them for being too severe in this case had always some respect both to the causes of the War and also to the manner of its prosecution when they thus punish'd them And therefore it was no ill advice that M. Aemilius Paulus gave to the Roman Senate in the case of Perseus Si nihil humani metuerent at divinam vindictam timerent iis imminentem qui victoriâ insolentius utuntur Though they stood not in awe of any humane power yet they should do well to fear the anger of the Gods who never failed to avenge themselves on those who abused their favours with too much pride and insolency Plutarch in the life of Agis observes that in the Grecian Wars such reverence was born unto the office and dignity of a King that their very Enemies durst not offer violence to the Lacedemonian Kings An Enemy therefore that considereth not what humane Laws permit to be done but what in equity he ought to do or what Religion and Piety requires to be done forbears the shedding of the blood even of his Enemies neither will he sentence any man to death unless it be to preserve life or livelyhood to himself or for such personal crimes as by the Laws of God or Man deserve death yea and though some
Jupiter himself and deservedly for a great cause of their prosperity may be attributed to their faith which they religiously kept both with their Friends and Enemies Though all other Laws sleep in War yet must Faith and Justice be strictly observed saith Ambrose Of the same mind was St Augustine Ep. 205. ad Bonif. Fides quando promittitur etiam hosti servanda est contra quem Bellum geritur When our word is past it must be kept though with an Enemy against whom we wage War Foedera jurastis dexteras dedistis quae etiam inter Hostes valent Ye have sworn Leagues with us Appian Civil 4. saith Archelaus the Philosopher in Appian Ye have plighted unto us your Faith all which are in force even amongst Enemies For in being Enemies they cease not to be rational men but by being men endowed with reason they are capable of a Right by virtue of a promise Camillus in Livy professeth That there was between him and the Falisci such a Society as was common with all Mankind but even from this common Society of discourse and reason there naturally ariseth that obligation from a promise whereof we now speak Neither must we think that because as many Authours hold it is lawful or at least blameless to deceive an Enemy by falsehood therefore by a parity of reason the same may be done though we have given our faith For the obligation of speaking truth proceeds from a cause long preceding any War and which may haply be in some measure relaxed by War but a promise doth of it self confer a new Right which difference was clearly discerned by Aristotle who treating of veracity thus distinguisheth I speak not of him who speaketh truth in ordinary Contracts and Agreements and in those which appertain unto Justice and Injustice which are indeed Branches of another Vertue Pausanias speaking of Philip of Macedon gives of him this Character No man saith he can well style him a good Emperour as being indeed always regardless of his Oaths though made by the Immortal Gods and upon every slight advantage faithless in his promises so that though a King no man was less to be believed either upon his Word or Oath than himself The like testimony doth Valerius Maximus give of Hannibal namely That as profest an Enemy as he was to the people of Rome and all the Italians yet was he a much greater Enemy to faith and sincerity rejoycing always in falshood and lies as if they had been commendable Vertues whereby it came to pass That whereas he had otherwise bequeathed unto the World an honourable memory of himself he hereby left it disputable Whether his Vices did not exceed his Vertues Thus the Trojans in Homer being prick'd in conscience by reason of their perfidiousness condemn themselves rumpentes Foedera sacra Juratamque fidem pugnamus non quibus fas est Breaking our sacred Leagues and Faith though sworn We fight ' gainst those who such false Dealings scorn II. Faith to be kept with Thieves and Tyrants Neither as we have already said * Lib. 2. c. 13. Sect. 5. may we admit of that of Cicero Nulla nobis Societas cum Tyrannis That no Society is to be held with Tyrants No nor of the same Cicero Pirata non est perduellium numero cum hoc nec fides esse debet nec jusjurandum commune A Pyrate is not to be reckoned as any mans particular Enemy with whom neither faith nor common Oath is to be kept Nor that of Seneca who speaking of a Tyrant saith †Lib. 7. de Benef All Obligations to him are cancelled if he cut off from that which is the common Right of all Mankind From which impure Fountain proceeded that errour of Michael Ephesus * Ad 5. Nicom who taught That it was not Adultery that was committed with the Wife of a Tyrant Non putans Adulterium Vxorem Tyranni polluere sicut nec homicidium Tyranvum occidere Supposing it saith Seneca †Sen. in excerp 4. 7. no Adultery to pollute the Wife of a Tyrant nor Murder to kill him Thus Julius Clarus * In Sect. Homicid n. 56. conceived that a Woman who stood out-lawed might be lain withal without being punished as an Adulterer And thus did some of the Jewish Doctors maintain the like errour concerning Strangers * R. Levi Ben. Gerson in Levit 20.10 whose Marriages they reckoned as none at all But Pompey finished a great part of that Naval War which he made against Pyrates by covenanting to preserve their lives and to assign them a Country wherein they might live without rapine And of Didius we read That he was condemned as perfidious for breaking faith with the Celtibrians who lived by robbery Caesar also in the third of his Civil Wars writes of a composition made by the Roman Captains with the Tories and Renegadoes who lay lurking in the Pirenaean Mountains Now who can say That such a composition being made is not binding 'T is true indeed that such Agreements do not produce so friendly a Communion as that which the Law of Nations hath introduced between Enemies engaged in a Solemn and Just War But yet being men it may induce such a Communion as natural Right affords them as Porphyry rightly argues which is sufficient to prove that such Contracts are to be performed Thus did Lucullus keep his faith given to Apollonius who was Captain of the Renegadoes as Diodorus records And thus did Augustus pay the ransome imposed on him by Crocata the Thief being by him apprehended rather than he would satisfie his word as Dio testifies III. This Objection That such deserve punishment answered But let us now see what more probable Argument than those brought by Cicero may be produced The first whereof is this That such as are notoriously wicked and are no part of a Civil Society may by the Law of Nature be by any man punished as we have elsewhere shewed But they that may lawfully be punished even with death may also be lawfully dispoiled of their Goods and dispossest of their other Rights as the same Cicero well observes Offic. lib. 3. Non est contra Naturam spoliare eum si possis quem honestum est necare It is no violation of the Law of Nature to despoil him of his Goods if we can whom it is lawful to kill But among those things wherein he claims a Right even those which accrew unto him by virtue of any promise that is made to him may be included and therefore even those by way of punishment may lawfully be taken from him Whereunto I answer That all this may be very true if we did not knowingly treat with him as such But in case we treat with a Thief as such we are so to be understood as if we were contented to remit the punishment due as to that offence because as we have elsewhere said promises are always to be taken in such a sense as that
demands his reward page 458 Buggerers may lawfully be killed page 72 Burial due to Enemies 216. whether due to the notoriously wicked 217. an emblem of the Resurrection 215. observed by Pismires and Dolphins and Bees page 214 215 To Bury him that was found dead the High-Priest commanded though not otherwise to be present at a Funeral page 216. Burial whether justly denied to self-murtherers page 218 Burial denied a just cause of War page 213 214 Burial its right whence ibid. A Bushel Roman how much of ours page 521 C. Celare what not every thing hid that is not revealed page 159 Caesar in his War destroyed 1192000 men page 421 Caesar forewarned of the Ides of March page 559 Calistratus misunderstanding the Oracle instead of protection at Athens found his Death page 398 Canaan not promised to any person but to the People page 168 Canaanites capable of mercy if they yielded page 169 Canibals and Sacrificers of mankind destroyed page 384 Canons Ecclesiastical of what use Preface xviii The twelfth Canon of Nice against War was occasioned by Licinius his cruelty page 28 29 Canons concerning the wasting of an Enemies Country page 514 Canons concerning Slaves how understood page 483 484 Captives whether they may be at any time killed page 460 Against Captives redemption Laws unjust page 561 A Captives promise to return binds him page 567 Captives lose not their things if not found and taken 562. when they may be put to death page 508 Captives and things not restored unless so agreed 489. their Children Slaves page 481 To Captives taken in War what in equity may be done page 520 A Captive released for exchange ought to return or pay his ransome his exchange being dead page 562 A Captive Woman if her redeemer either marry her or prostitute her Body her ransome is lost page 490 Captives to take in War dow far lawful page 519 Captives to redeem Vessels consecrate may be sold page 216 217 Captives whether they may make their escape page 523 A Captive who takes hath a Right to all he hath so long as he keeps him page 489 A Captive redeemed to serve his redeemer how long page 490 A Captive may owe his ransome to divers 562. his ransome agreed shall bind though he be richer than was believed ibid. A Captive is a perpetual hireling whose ransome is paid by his work page 519 Captivity better than death or desolation page 420 Captives in a solemn War Slaves though they never acted hostility against us page 483 Captives taken in a publick War distinguisht from such as are Slaves for personal crimes page 519 520 Captives how long in equity they may be detained page 519 A Captives allowance among the Romans how much it contains of ours page 521 Captives not exempted from the licence of War 460. yet to be spared page 506 507 Captives redeemed by the valour of Souldiers not taken but received page 491 Captivity arising from an unjust War unjust page 495 Captivity into what now changed page 484 See Slaves Capua dissolved page 142 Carneades holding all lawful that was profitable confuted Pref. iii vii his Arguments against Justice answered ibid. Carthage to be free how understood 194. the Captive promising to return and failing sent back by the Romans page 167 The Cauchi a People of Germany well disciplined yet always at Peace page 406 Cavils concerning interpretation of Articles page 191 194 Causes of a just War Defence Recovery Punishment page 70 71 Without Cause to make War not cruelty but madness page 405 Cause may be good but the manner of its prosecution unlawful page 401 Causes of a War unjust page 404 Causes of a just War three page 70 Causes and pretences distinguish'd page 404 Cautions to limit the Law of necessity page 82 Certainty there cannot be the same in Morals as in Mathematicks page 410 Change of Counsels is not evil if not from better to worse page 151 To Change a Mans will is natural ibid. Change of Seat no loss of Empire 142. no more is the Change of Government page 143 The Charges of the War may be required from the Authors of it page 518 Charity sometimes forbids what Law permits 434. its Rules extend farther than those of Justice page 518 Charity mitigates punishments unless hindred by a greater Charity page 381 Charity should be extended by Christians as Christ extends his Grace to all men page 186 Children born of Captives how far Slaves 523. not to be punished for their Parents 401. in this Case God no Precedent for us and why 399 400 402. how long they owe Obedience to Parents 104. grown to discretion have a moral power over their own actions and how ibid. even of Traitors spared by good Princes 402 403. to succeed their Parents dying intestate 123. to nourish their Parents like the Stork ibld. The Child to follow the Condition of the Mother only not natural 133. why threatned to be visited for their Parents page 402 Choice of the Empire not in the Citizens of Constantinople but of Rome page 144 Christs actions not all imitable by us page 34 Christ not Moses's Interpreter only page 16 17 Christians whether they may join with Infidels in a Social War page 185 Christian Religion inoffensive by the testimony of Heathens 390. being grounded on matter of fact none to be thereunto compelled page 389 390 Christians to persecute as such a just Cause of War 390. not to be imprest to serve in War against their will 431. should confederate against the Enemies of Christ 186 187. swear by the Creatures in reference to God 171. not to fight against Christians under Heathens 29 30. make not Christians Slaves nor Turks Turks 414. to inflict capital punishment how not safe for them 373. should not resist persecuting Emperours 57 58. ought to assist Christians persecuted for Religion 186 187. whether they may enrich themselves by the Spoil of Enemies 535. whether they may resist in Cases of extreme necessity page 60 61 Christians even unarmed make War page 431 Churches and things consecrate to be spared page 414 515 516 Circumcision to whom it belonged 9. why Strangers were circumcised ibid. not necessary to salvation the Jews confess ibid. A City what 8. in what sense said to be free 407. their Right over their Citizens page 114 A City hath no power over her Banished 115. revolting to receive is against the Law of friendship page 510 Cities and Rivers immortal 141. being by War conquered whether it ceases to be a City page 485 A Citizen not to depart till his part of the publick Debts be paid 115. nor in a Siege till he hath substituted another ibid. being delivered up but not received may return and remain a Citizen 396. whether they may forsake their City page 115 A Citizen though innocent whether to be compelled to deliver himself up to preserve his City page 423 424 Cities not to be punished if the Criminal appear in Judgment 396.
though unjust ceaseth not to be Cities page 451 A Citizen taken by Pyrates loseth not his freedom 456. and a Servant how they differ 486. of Rome all that live within the Pale of the Empire page 450 The Citizens Right over their Magistrates page 201 A City how distinguished from a Company of Pyrates 451 452. War worse than Tyranny page 65 Civil Power wherein it consists 37. Empire gained by War and its Rights 485. Law may bind or restrain from that which Nature leaves free 81. Laws some unjust page 127 Claim from a Foreigner everlasting 182 183. whose best his that gives the matter or form page 139 Clergy-men exempted from War page 67 Clemency most becoming a Prince 382 383. to be used to the Conquered the Conquerour secured 527 528. seen in the mitigation as well as in the remission of punishment 382. of the Pharisees in punishing 371. Motives thereunto 417 418. Emperors famous for Clemency 501. a great Ornament to Princes where their injuries are done against themselves page 417 418 554 c. Colledges spared by the Philistines page 506 Colonies have the same Right their Mother Cities have 143. not governed absolutely by their Mother Cities 49. yet by the same Laws and Magistrates 142 143. usually the rise of Free States page 143 144 A Command given for one thing whether fulfilled by another more profitably 197. without it he that kills an Enemy to what obliged page 535 536 Commanders inferiour in some Cases may make War 35. how far they may bind their Souldiers page 564 Command in War may be either general or special page 535 Commands of a General must not be disputed but obeyed page 197 Commands distinguish'd from Counsels Pref. xviii Of Commerce the most ancient way is by exchange 157. the liberty and for it Tolls due page 84 85. A Commonwealth is such though corrupt page 451 The Common safety sometimes preferred before our own page 73 Community their Rights over their Members page 3 A Community may arise by giving a new Form to the matter of another 139. or through commixture according to the proportion of either ibid. Communication of crimes between Kings and Subjects page 398 399 Communication of things useful to others and not damageable to our selves charitable page 82 To Compel stands not with the nature of an Inferior 46. being compelled they that war against us to be spared page 498 499 Compensation due to Subjects whose Goods are alienated for publick Peace page 545 546 Concubinary Marriages see Marriages Concubinate a kind of natural Marriage page 112 A Concubine who and how allowed page 113 Conditions who offers or who accepts which makes the Contract page 199 Conditions hard imposed on the weaker Party or the Conquered page 183 This Condition things standing as they do when tacitely understood page 197 Conditions not fulfilled on the one side dischargeth the Promiser page 541 Conditions when severe seldom lasting page 529 A Confederate on unequal Conditions may obtain the Supreme Power page 48 Confederates their differences how determined page 49 50 Confederates engaged in several Wars and both demanding War which we should assist page 187 Confederates one may be assisted against the other unless expresly forbid by former agreement 424. in their behalf War lawful in a just cause ibid. the ancienter to be preferred caeteris paribus unless in one case page 412 413 Confederates not to be assisted in cases desperate and why page 424 Conjectures useful when words admit of divers senses page 191 Conjectures restraining promises how guided page 193 Conjectures from the matter effects things conjoyned page 191 192 The Conquerour may give the Conquered what he pleaseth 486. as some part of the Government or some liberty or freedom in Religion page 527 The Conquerour may be secured by imposing Garrisons or Tribute on the Conquered page 526 That the Conquerour may live securely is the end of War and how this may be done without cruelty page 524 525 Who is Conquerour in single Combats page 552 To the Conquerour to submit better than desolation page 119 The Conquerour may impose what Laws he pleaseth 485. crowned in the pavilion of the Conquered 479. more safe in a free than compulsory obedience page 527 Conscience not bound by some Laws page 482 483 Consecrated Plate sold for what uses page 216 217 Consent gives signification to words not things page 438 Constantine page 28 A Contract made with a Servant binds his Master 147. binds according to Laws of the City wherein it is made but not if made on the Sea or in a Desart page 152 Contracts permutatory that separate the parts have three heads Do ut des c. 157. mixt principally or by accession and such as introduce Communion page 158 159 In Contracts a just proportion is to be observed 160. all errors and mistakes are to be rectified ibid. The Contracter with another for what is his own releaseth his Right page 98 The Contracts of Kings and Free States not always interpreted according to the Roman Laws page 199 Of a Contract the writing is but a lasting Monument and no part ibid. A Contract in doubt is perfect before the delivery of the writing when otherwise it must be so exprest ibid. Controversies in War not determinable by the Civil Law 122. concerning things taken in War shall be judged in any Nation at Peace where they were taken according to their customs page 488 Corn and other things useful in War may be sold to the Enemy to pay Souldiers to destroy them were madness page 513 514 Of Corn sown on anothers Lands by mistake whose the Fruits are page 139 Conventions publick how and when divided page 180 In Councils General a King newly made shall have the same place as the People being free had before page 143 Counsel of wise men how prevailing page 25 The thoughts of Counter-passion restrains from wrong doing page 371 Counter-passion hath no equality if the nocent and innocent suffer alike page 381 Crassus how he gained his great wealth page 535 Creatures naturally wild are for the most part theirs that take them page 469 Cruelty arising from vain fear page 72 Cruelty of the Roman Generals in their triumphs page 461 Custome and opportunity two great incentives to sin unless curb'd by severe Laws page 381 Customes Civil sometimes mistaken for the Law of Nature page 385 Cyrus his judgment concerning the two coats page 4 D. IN Dearth Strangers forbid Corn yet Sojourners not then to be expelled page 86. Death voluntary in defence of Chastity commended 219. in some cases allowed by the Jews as the Death of Sampson Saul c. ibid. termed a dismission ibid. the only good thing to an incorrigible offender page 272 273 Day until such in a Truce whether exclusively or inclusively to be understood 562. in a League how understood page 191 Damage à demendo i. e. from taking away a mans Right 200. which may be either in the things or profits
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseâ—t 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
Common-wealth may not only be by force resisted but if it be necessary may be punished with death As it befel Pausanias King of the Lacedaemonians of whom Plutarch thus The Spartans taking to heart the death of Lysander sentenced their King to death Plut. vit Lysand because leaving Lysander out of Cowardise whom he was sent to relieve he had fled for safety to Tegra The like he records in the life of Sylla The Spartans saith he deposed some of their Kings as being unfit for Government because they were of low and abject Spirits Yea and of Agis he reports That being their King yet was condemned though unjustly Now seeing that there were in Italy diverse such Kingdoms it is no marvel that Virgil having first recorded those many wicked Acts done by Mezentius adds Th' Hetrur'ans therefore all in a just rage To bring their Kings to Judgement do engage Of whom an old Hetrurian South-sayer spake thus Whom their just Woe Arms as against a Foe IX Or against King that hath renounced his Kingdom Secondly If a King or any other shall renounce his Empire or manifestly forsake it against such a Prince or King after that time any thing is lawful that may be done to a private man But this then we must observe That he that is careless and negligent only in his Government cannot thereby only be judged to have forsaken it X. Or against a King that would alienate his Kingdom Thirdly It was the opinion of Barkley That if a King would alienate his Kingdom or subject it to another he lost it But here I make a stand For if the Kingdom be Elective or descend by succession such an Act of Alienation is in it self null And whatsoever is in it self null can have no effects of a just Right Wherefore as also of that Kingdom that is barely usufructuary whereunto I have likened such a King the opinion of the Civilians is to me more probable That in yielding up his Kingdom to a stranger he confers nothing And whereas it is said that the fruits and profits revert to the Lord of the propriety It is to be understood after such a time as is prefixed by the Law Yet notwithstanding if a King shall really endeavour to deliver up or subject his Kingdom to another I doubt not but that in this case he may be resisted For Empire is one thing and the manner of holding that Empire another The alteration whereof the people may hinder for that is not comprehended under the notion of Empire Whereunto may that of Seneca be not unfitly applyed Although our Father be in all things to be obeyed yet not in those things wherein he ceaseth to be a Father XI Or a King that Invades the whole body of the people in an hostile way Fourthly as the same Barkley observes If a King shall endeavour with a mind truly hostile the destruction of the whole body of the Nation over which he is set to govern he loseth his Kingdom and may be resisted Which I grant For the end of all Government being for mutual conservation he that wilfully resolves to destroy can have no right to Govern Wherefore he that openly either in word or deed professeth himself an enemy to the whole Nation is in that very act presumed to abjure and renounce the Government of it When Scylla had depopulated not Rome only but almost all Italy one seriously advised him that it was fit to spare some that he might have some to govern Vt essent quibus Imperassent But this case can hardly be found in any King that is of sound mind and that governs one only Nation But in case he govern more than one it may so happen that in favour to one he may endeavour to destroy the other that so he may plant it with new Colonies Plut. vit lib. Grac. Gracchus his Arguments are very Ingenious whereby he proves that a Tribune of the people being therefore accounted sacred and Inviolable because he is consecrated by the people to defend them in case he shall endeavour to oppress them to diminish their power and to take from them their rights of suffrage doth thereby actually degrade himself in not performing that for which that honour was conferr'd on him For to admit saith Gracchus that the Tribunes of the people may in some cases imprison their Consul and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it even against those from whom he received it seeing that both the Consul and the Tribune were by the people created would be very absurd The like we find asserted by Johannes Major namely That a people cannot abdicate their power of deserting their Prince in such cases as tend to their manifest destruction Both which may be very well expounded by what hath been herein already delivered XII And against him who breaks the condition upon which he was admitted Fifthly In case a Kingdom be confiscate either by Felony committed against him whose the Fief is or by any clause or condition expresly made and agreed on at his admission to the Kingdom As in case the King shall do this or that his Subjects shall then stand absolv'd from all obligation of duty and obedience unto him †Vid. Marian. de regno Arragon In this case also a King may recede into the condition of a private person XIII And against him who havlng but one part of the Soveraign power Invades the other Sixthly If a King having but one part of the Soveraign power and the Senate or people the other if such a King shall Invade that part which is not his own he may justly be by force resisted because in that part he hath not the Soveraign power Which I believe may take place although it be said That the power of making War is in the King For this is to be understood of a Foreign War since otherwise whosoever hath any part of the Supreme power cannot be denyed a Right to defend his own even by force which when it happens even the King himself may justly by the Right of War lose even his own part of the said Empire XIV And against him who grants such a Licence in certain cases Seventhly If in the Translation of the Empire it be expresly said That upon some certain events that may happen it may be lawful to make resistance For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained yet certainly it may be conceived that some kind of natural Liberty was thereby understood to have been reserved to the people and exempted from the power of the King * Thuan. l. 131. in anno 1604. Id. l. 133. an 1605. de Hâ—ngaria For possible it is for him that alienates his own Right to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements whereof we may find