Parents to love their Children than for Children their Parents And that also of Aristotle That which begets is always better affected to the thing begotten than that which is begotten can be to the begetter For that is properly said to be our own which derives its being from us Whence it comes That without the favour of the Civil Law the first Succession to the goods of the Parents is transmitted to their Children it being presumed That next after themselves they would that those born of them as being part of their own body should be plentifully supplied with all things not only necessary for life but for a more honest and comfortable livelihood Insomuch that were all humane Laws asleep yet as Paulus the Lawyer observes would natural Reason which is as it were a silent Law adjudge the Fathers Inheritance unto his Children and invest them in it as their due by an undoubted Succession But yet as Papinianus notes cannot Parents claim the estates of their Children by the same Right as Children do the Inheritance of their Parents For Parents are admitted to their Childrens goods meerly out of Commiseration but Children to the estate of their Parents by the common vote that is both of Nature and of their Parents Philo in his third Book of the life of Moses gives this Reason why Moses made no provision for Parents out of their Childrens Estate Because seeing that the Law of Nature did provide that Children should succeed their Parents in their Estates and not Parents their Children therefore did Moses pass over in silence what was contrary to the desires of all Parents and might prove unlucky Hence we may observe That the Inheritance of Parents descends upon their Children by a twofold Right partly as a meer debt of Nature and partly out of a Natural Conjecture That it is the Will of their Parents that their own Children should be best provided for Lib. 5. c. 9. Sanguini honorem relinquit saith Val. Max. of Quintus Hortensius His honour he bequeathed to his Blood For though he detested the wicked life of his Son yet dying Ne ordinem naturae confunderet non nepotes sed filium haeredem scripsit To preserve the order of Nature he made his Son and not his Nephews heir to his Estate Thinking it enâ—ugh that he had declared his dislike of his Sons ill manners whilest he lived And therefore dying Ib. he left him the honour due to his Blood The like he records of Fulvius who causing his own Son to be apprehended for conspiring his death did not only forbear to prosecute him whilest he lived but dying Dominum omnium esse voluit quem genuerat haeredem iâ—â—â—ituens non quem fuerat expertus Made him heir of all he had regarding his Birth and Blood and not his Crimes And to this purpose is that of St. Paul Children do not lay up for their Parents 2 Cor. 12.14 but Parents for their Children VI. Of Representative Succession Now because it is thus natural and ordinary for Parents to take care of their Childrens Education therefore whilest they live there lyes no obligation upon the Grand Parents to give them maintenance Yet in case the Father or the Mother dye or be otherwise disabled then it is a duty which in all equity the Parents of the deceased Son or Daughter are obliged unto to see their Nephews or Neeces virtuously brought up And by the same reason is the same duty incumbent on the Parents of more remote degrees if these fail And from hence ariseth the Right of the Nephew to inherit the Estate instead of a deceased Son as Vlpian speaks Which gave occasion to that Hebrew saying Filius etiam in Sepulchro succedit That the Son succeeds though in his Grave Because Filii filiorum sunt quasi filii The Sons of that dead Son are reputed Sons And as Modestinus speaks Shall fill up the vacant place of their dead Father Justinian thought nothing more unreasonable than this That the Nephew should succeed instead of the deceased Father in the Estate of his Grand-father in case he dyed Intestate And this kind of Vice-succession our Modern Civilians do affectedly call Representative when the Sons claim an Estate by representing the person of their Father being dead And that that manner of Right was approved of amongst the Hebrews the division of the Land of Canaan amongst the Children of Israel doth sufficiently demonstrate As our Sons and Daughters are nearest unto us in blood so are those who are born of either of them as Demosthenes observes in his Oration against Macartatus VII Abdication or exheredation What we have hitherto said concerning the Right of Succession arising from our Conjectures at the Will of the Intestate is of force if there appear no certain sign that he was otherwise minded Such in the first place was among the Grecians an Abdication or a manifest renouncing or casting off of the person claiming And among the Romans an open disinheriting of him yet so that if that person did not by his crime deserve to be put to death he was to be allowed sufficient to sustain Nature for the Reasons aforesaid VIII The Right of Bastards And here we may add another exception to this general Rule that is If it do not sufficiently appear that such a Son or Daughter was begotten by him But yet we know that of such matters of fact there can be no certain knowledge But of such acts as are publickly done before men there may be some certainty upon the Testimony of such as beheld them In which sense the Mother may be certain that the Child is hers by those who were present at its Birth and Education but thus certain cannot a Father be Which Homer first and after him Menander thus intimates Know directly no man can From what stock himself first sprang And so in another place he thus distinguisheth between the Parents Fathers do love their Children Mothers dote She knows them hers but this he takes by rote Therefore some way was thought fit to be found whereby it might probably appear who the Father of every Child was And this was Marriage taken in its Natural terms that is for such a cohabitation as placeth the woman under the custody or safeguard of the man But whether by this or some other way the true Father of the Child be known or that any man doth own the Child as his by the Law of Nature that Child as well as that born in Marriage shall inherit Neither is this strange seeing that we see meer strangers being adopted for Sons to succeed in the Jnheritance only by conjecture at the owners will And the Nephew instead of the Father as old Jacob adopted Ephraim and Manasses into the number of his Sons in the stead of their Father Joseph But our Natural Issue is differenced from our Legitimate by Law only So Euripides Bastards no less than those in Wedlock born Are ours although by Laws
consent a man hath over his adopted Son XXVII Of the right that Lords have over their Servants XXVIII How far this right extends as to life and death XXIX What the Law of Nature determines as to those that are born unto Servants XXX Of Servitudes there are divers kinds XXXI What power by consent one Nation hath over another that freely subjects it self XXXII What right is acquired over persons for some crime committed I. The Right of Parents over their Children A Kind of Right may be gained over Persons as well as things and that either by Generation by Consent or by way of Punishment for some delinquency By Generation so both the Parents have equal right over their Children yet so that if they differ in their Commands the Father as being of the more noble Sex is to be obeyed before the Mother Of this mind was St. Chrysostom 1 Cor. 11.3 It is expedient saith he that the Wife should be subject unto her own Husband for equality in honour begets quarrels And St. Augustine also A Son born in lawful wedlock Ep. 191. is more at the command of his Father than of his Mother II. This right differs according to the age and discretion of their Children In Children we must distinguish their three different times The first is that of their Infancy whilst they are of unripe judgment not able to know good from evil not to distinguish truth from error The second is When they grow to ripe judgment but yet continue in their Fathers Family The third period is this When they are separate from their Fathers and have Families of their own During the first of these all the actions of the Child ought to be regulated by the Parents for it is but equal that he that cannot govern himself should be governed by another Vide supra c. 3. §. 6. and naturally there is none so fit to govern the Child as the Parents And yet by the Law of Nations the Child is then capable of inheriting an estate though he be justly restrained from managing of it by reason of his immature judgment This was Plutarch's observation where he saith De fort Alex. lib. 2. That Children have a Right 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the Inheritance but not to the use of it Neither is it from the Law of Nature that all that is the Childs should be disposed of by the Parents but from the Laws of some people which do in this case sometimes distinguish the Father from the Mother as they do also between their bond and free children and between the natural issue and legitimate of which distinction the Law of Nature takes no Cognizance except only of the priviledges of Sexes where both Parents contend who shall command the Child III. The Second Period Whilest the Child is a part of the Parents Family In the second period when the Childs Judgement is ripened with his years yet abiding in his Fathers house those actions of the child only are subject to the commands of his Parents that are of moment to the well ordering of the estate of his Father or of his mothers Family For it is but reasonable that every part should endeavour the welfare of the whole But in his other actions he hath a moral power to do whatsoever his own judgement shall guide him to provided that in all things he endeavour as far as in him lies to please his parents But because this is a debt arising not by vertue of that moral faculty as those above but from the duty of piety reverence and gratitude it cannot make void those actions of his that are otherwise done no more than it will suffice to avoid any grant or gift given by the right owner to say That it was against the Rules of Parsimony IV. Of Parents coercive power During both these spaces of time Parents have a Right not to govern only but to punish and to enforce obedience from their children so far forth as they ought to be either compelled to their duty or to reform what is amiss But as to greater punishments we shall discourse elsewhere V. Their power to sell them Although the Paternal Right be so inherent in the Fathers person as that it can no ways be either taken from him or transferr'd to another yet naturally if the Civil Laws do not restrain the Father hath power to pawn or if necessity so require to sell his son Hist Goth. if he have no other way or means to maintain him Thus the Goths as Jornandes records solicitous of their Childrens safety chuse rather to preserve their lives than their liberties and therefore in Compassion thought it better to sell them to be kept and nourished as slaves than to suffer them to dye in defence of their freedome Which Right other Nations seem to have borrowed from that old Theban Law recited by Aelian which also seems to be derived from the Phoenicians Lib. 2. and also from the Hebrews and by them to the Grecians as Apollonius observes in his Epistle to Domitian For Nature it self is presumed to give us a right to all that without which that which she commands cannot be obtained VI. Their power over them when separate from them In the Third space or period that is when the Children are grown to maturity and in another Family by themselves then they are free to do what pleaseth themselves always paying the duty of piety and reverence to them which is an obligation never to be cancelled whence it follows that the acts of Kings are not therefore null'd because their parents are living VII The Rights of Parents are either Natural or Civil What power Parents have over their children more or less than this they derive from the positive Laws of men which in all Nations are not the same So by that right that God gave unto the Hebrews the power of a Father to null the vows of his Sons and Daughters was not perpetual but only during their abode in their Fathers family As may appear Numb 30.2 3 4 5 verses For otherwise the Son being parted from his Father had power at thirteen years of age to bind himself without the consent of his parents The Roman Citizens being Fathers had a peculiar power over their Sons though they were heads of their own Families The Romans gave as much power over their Sons as over Slaves Pyrrhoniorum 3. before they were made free which power they themselves confess that other people had not over theirs So saith Sextus Empericus The Roman Law-givers gave as much power to parents over their children as over their slaves for the goods of the Children were not reputed theirs but their Parents until they were manumitted in the very same manner as their slaves were Which other Law-makers rejected as Tyrannical The like doth Philo record of them All manner of power over the Son was by the Romans given to the Father
have Society naturally and why not seeing that Beasts with Beasts have the same And in another place he tells us That Nature hath instill'd into our minds the very seeds of Vertue This also M. Antoninus that Emperour who was so highly famed for his Philosophy thus testifies That we were born for Communion was long since apparent For Is it not plain saith he That Nature frames all things in order when we see the worser things made for the better and the better things one for another That therefore which Carneades affirms That every Creature is by Natural Instinct led to such things as are to it self only profitable if universally taken is not to be granted for some of the rest are content to abate somewhat of their own profit partly to their young ones and partly to others of their own kind The Proverb intimates as much when it saith Canis Caninam non est One Dog will not eat another And the Poet confirms it Tygers though fierce at Peace with Tygers are Juveral And every Beast will its own Kindred spare It was therefore Philo's advice Let men saith he Upon the Fifth Commandment learn Gratitude from Dumb Beasts The Dog will defend his Masters house that feeds him and oft-times will expose himself even to death for him upon the approach of any Danger that threatens him Is it not then the greatest of all shames that a Dog should be more thankful than a Man And that a Creature naturally Fierce and Ravenous should in Gratitude excell the Mildest and Meekest of all Creatures But if we scorn to learn our duty from Creatures Terrestrial let us yet observe the Nature of Birds those Aereal Travellers The Stork being Feeble through Age and not able to fly abroad rests in her Nest whilst her young ones travelling o're Sea and Land seek for Food for their aged Parents who being worn and spent with Age and Travel deservedly enjoy ease plenty of necessaries nay of delicates whereas their young ones comfort themselves with this That they have conscientiously performed that duty which Piety exacted from them together with an expectation of the like to be paid unto them hereafter when they also shall grow old and through age feeble Thus do they in due time discharge a necessary debt by restoring that to their Parents in their old Age which in their Infancy they received from them Now from whence think ye do they learn this duty of fostering their young but from Nature being in the same manner fostered themselves when they are young And how can they hear this saith Philo and not hide their heads for shame that take no care of their aged Parents but wilfully neglect them whom either alone or before all others they ought to sustain Especially considering that in so doing they cannot be said properly to give but only to repay what they owe them For Children have nothing of their own but what they derive from their Parents who either gave it them out of what was theirs or by some means or other enabled them to get it Whence this proceeds Now in Beasts this care of their young proceeds as I conceive from some Extrinsick Intelligent Principle Because as to other Acts not more difficult than these the same Intelligence doth not appear in them The like may be said of Infants In whom as Plutarch well observes there is a Natural Propensity to do good unto others even before they are capable of Instruction and whom Nature it self teacheth to be Compassionate Man only hath the faculty of Speech But in a man of perfect Age when knowingly he doth the same in like cases having withal an exceeding great desire after Society whereof he alone of all other Creatures hath the proper Organ I mean Speech In him I say it is fit that we should admit a Faculty of knowing and doing things according to some General Rules And of knowledge by General Rules whereunto whatsoever is agreeable is not so to all living creatures but peculiarly to mankind only Homo ad id natus est Lib. 9. bene ut aliis faciat c. Man saith M. Antoninus was born for this end to do good unto others And again Sooner may we find Bodies Terrestrial not tending to the Earth than a sound and perfect man not affecting the society of men For as he speaks in another place Quod ratione utitur necessario Coetum appetit Whatsoever hath the Faculty of Reason must necessarily affect Society To the same purpose is that also of Nicetas Coniates Lib. 10. Nature her self hath insculpt and ingenerated in us See Aug. de Doctr. Christ lib. 3. c. 14. a mind easily consenting and agreeing with those of our own kind Neither can I here omit that excellent saying of Seneca That thou maist understand how desiderable a thing of it self it is to have a thankful mind and how odious a thing Ingratitude is Know that there is nothing sooner dissolves and disjoints Humane Society than this Vice of Unthankfulness For wherein otherwise consists our security if not in those mutual good offices that we do one to another by which Commerce and Exchange of Courtesies only our lives are strongly guarded and fortified against all violent Incursions whatsoever Take us singly and what are we but a prey to all other creatures and as so many sacrifices to appease the hunger or rage of ravenous beasts No Blood so vile none so easily purchased as ours All other creatures are sufficiently guarded against all violence Whatsoever is born wild and unsociable comes into the world armed only man comes naked and infirm having neither Hoofs Horns Claws nor Teeth to make him to appear terrible to the rest only two things Nature hath given him whereby both to offend others and to defend himself namely Reason and Society By these he that being single is weakest of all becomes Lord and Master of all It is Society that gives him the dominion over all other creatures it is Society that transfers Empire from one Nation to another extending it self over the Seas also it is this that mitigates the violence of Diseases it is this that yields Comfort to old age this asswageth grief and pain this makes us strong valiant nay invincible For as much as we may lawfully crave its assistance even against Fortune her self Take away this and you break asunder that Unity that there is between mankind whereby our lives are sustained And it is certainly taken away if Ingratitude be not in it self odious Thus far Seneca Now this very conservation of Society Concerning the great care that Doves have over their young see Porphyâ—y de non esu l. 3. Society the foundation of Law 1. Of Nature strictly taken as it is agreeable to humane understanding though but crudely here exprest is the foundation of that which is properly called Right From whence ariseth our abstinence from that which is anothers and our
appertains to the Person though it be sometimes but in relation to the thing he holds as services for Land held of a chief Lord and these are called real Rights comparatively to those that are merely personal not because even these belong not to the person but because they belong to no other but to him that enjoyes the thing whereunto that service is annexed This moral Quality if perfect we call Faculty If imperfect an Aptitude or fitness only Answerable whereunto in things Natural are to That an Act done to This a Power to do it V. Faculty divided into Power Dominion and Credit Which Faculty Civilians call that Right which a man hath of his own but we henceforth call it Right properly and strictly taken Under which are comprehended First a Power over our selves which we call Liberty Then a Power over others such as Fathers have over their Children Lords over their slaves Secondly Dominion and that either full and Absolute or Limited As that which a Tenant hath in the profits of his Farm for his Rent the Right that a man hath to a thing Pawned And Credits to which are opposed Debts VI. This Right is twofold either Common or Eminent Now this Faculty is also twofold that is to say either vulgar as that which every man hath over his Goods to dispose of them as he pleaseth or that which is more eminent being superiour to that which is vulgar as that which every Society hath over the persons and Estates of all its members so far as conduceth to the preservation of the whole Thus doth Regal Power comprehend as well that of a Father as that of a Master so that a King as he is a King hath a greater Right in the Goods of his Subjects so far as is necessary for the publick safety than any private Subject hath in his own Of this opinion was Philo the Jew Surely both the Silver and the Gold This is grounded on the Law of Nature which makes that to be just which is necessary for the preservation of Humane Society which our blessed Saviour takes as granted and therefore speaking of Taxes he saith not Offer or give as of a thing Arbitrary which was in our Power either to do or not to do But render as of a thing that we owe or are trusted with for the benefit of another which we are bound to restore whensoever we are thereunto required And such indeed is that portion of every mans Goods which is necessary for the defence of the Common-wealth not ours but Caesars St. Paul calls these Debts which being joyned with the word Render makes it as clear as the Sun that our Taxes are not Donatives but just Debts Nay they are the Greatest of Debts due upon the strictest account and therefore justly to be preferred before all other Debts and in the first place to be discharged And good reason for the Non-payment of this Debt may occasion the loss of the whole Estate not private only but publick and whatsoever else is held dear and precious to Subjects are more in the Power of those that govern than of those that possess them Of the same mind also was Pliny as appears by his Panegyrick where speaking of a King he saith Cujus est quicquid est omnium what all men have is his And again Is there any thing that Caesar can see that is not his that is whensoever the Commonwealth doth necessarily require it VII Aptness what it is That which before I called Aptitude or Fitness Aristotle expresseth by the word Worthiness Michael Ephesius by another word implying Fitness or convenience As for example If a Question should be put To whom in duty we stand most obliged The Answer De offic l. 1. saith Cicero should be to our Prince to our Country to our Parents Because from them we receive the greatest Blessings we enjoy next to those we stand engaged to our Children to whole Families whose dependence is upon us alone Then to our nearest relations who for the most part do claim a share in our fortunes Wherefore all these we are bound to relieve with all things necessary for life but especially those above named But to Eat to Drink See Book 2. ch 7. s 9 10. Sen. de Ira lib. 4. c. 2. to Converse with to exhort to advise to comfort and sometimes to reprove these are the proper Offices of Friendship So being to make our will we consider who hath best deserved of us Quaerimus dignissimos quibus nostra tradamus we seek out such as are most worthy to whom to bequeath our Estates VIII Of Expletive and Attributive Justice Expletive Justice which hath now gotten the name of Justice strictly taken hath a respect to that which is our own which Justice Aristotle by too narrow and pincht a word calls Commutative Justice For that he that is possest of what is mine should restore it to me is not by Commutation and yet it belongs to this Branch of Justice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And therefore in another place he finds out a more apt and pertinent word to express it by calling it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Justice that makes the ballance even or that repairs and restores to the full Attributive Justice which is called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Distributive Justice hath a respect to aptness worthiness or convenience and is usually the Concomitant of such Vertues as are beneficial to others as mercy liberality and State Providence But whereas the same Aristotle saith that Expletive or Commutative Justice hath respect unto a simple and Arithmetical proportion but Atributive to a Comparative which he calls a Geometrical proportion as being the only proportion owned by Mathematicians and which Cassiodore calls the comparing of mens habits or dispositions and not unfitly by Homer described in this verse Things best to best he gave mean things to mean This may hold in some cases but not in all neither doth Expletive Justice of it self differ from Attributive in such use of Proportions but in the matter whereabout it is Conversant as is before shewed Therefore as in all Elections made by Societies if there be several Competitors the Choice is made by a Comparative Proportion for Datur digniori the worthiest is chosen so if there be no Competitor and one only be found worthy of such a publick office it is Attributed to him by a simple proportion Neither is that more true which some affirm that Attributive Justice is Conversant only about things Common but Expletive about things private that is appertaining to particular men For on the contrary If a man shall go about to bequeath his Estate by Will he doth it by Attributive Justice dispensing it according to the worthiness of the persons that are to receive it And a City which renders out of that which is Common what some of her Citiziens have bestowed in publick doth it by the Rule of Expletive Justice not
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
my Calling And if some Princes do prevaricate in some things they and not their Function are to be blamed But as to Laws though they cannot be so made as to fit every mans Case yet it sufficeth to denominate them good if they obviate such disorders as are frequently practised and so do good to the generality of the people But as to such cases which because they rarely happen cannot so easily be provided against by particular Laws even these also are understood to be restrained by general Rules For though the reason of the Law being particularly applyed to that special Case hold not yet in the general under which special cases may lawfully be comprehended it may And much better is it so to do than to live without Law or to permit every man to be a Law to himself Lib. 7. de beneâ— cap. 16. Very apposite to this purpose is that of Seneca Better it is not to admit of some excuses though just from a Few than that All should be permitted to make whatsoever they please Memorable is that of Pericles in Thucydides Better it is for Private men that the Common-wealth flourish Lib. 2. though they thrive not in it than that they should abound and grow rich in their own private estates and the Common-wealth pine and wither For if the whole be ruined In the general safety each particular is included every private mans Fortunes must needs be ruined with it But if the Common-wealth flourish every private mans estate though in it self weak may in time be repaired Wherefore since the State if well ordered can easily support any private mans fortunes but a private mans estate though never so well ordered cannot repair the loss of the Publick State Why do ye not rather Contribute your utmost care to advance the Publick than as ye now do seek to build your own private Fortunes upon the publick Ruines Wherewith agrees that of Ambrose Eadem est singulorum utilitas De Off. lib. 3. quae universorum The Profit which the Common-wealth receives redounds to every private man And that also in the Law Semper non quod privatim interest uni ex sociis sed quod communi societati expedit servari debet Evermore not that which particularly availeth any one party but that which conduceth to the benefit of the Common society is to be observed When the common people in Rome began to Mutinee by reason of some Taxes extraordinarily imposed on them Liv. l. 26. Laevinus the Consul exhorted the Senate to encourage the people by their own example And to that very end advised every Senator to bring into the Senate-house all the Gold Silver and Brass money he had that it might be delivered to the Triumviri for the publick service adding this Reason If our City overcome no man needs to fear his own estate but if it fall let no man think to preserve his own For as Plato rightly observes What is common strengthens a City but what enricheth Private Families only weakens and dissolves it And therefore it concerns both Princes and Subjects to prefer the affairs of the Common-wealth before their own private either pleasure or profit It is a very true Observation of Xenophon's He that in an Army behaves himself seditiously against his General sins against his own life And no less true is that of Jamblicus No man should think himself a Loser by what the Common-wealth gains for every private mans loss is sufficiently recompensed in the Publick Profit For as in the Natural body so doubtless in the Civil In totius Salute Salus est partium The well being of every part consists in the safety of the whole But without doubt among those things that are publick The General safety consists chiefly in well commanding and well obeying the chief and principal is that aforesaid Order of well Commanding and well Obeying which cannot consist where private Subjects assume that Licence of resisting the publick Magistrate which is excellently described by Dion Cassius whose words sound much to this sense I cannot conceive it seemly for a Prince to submit to his Subjects for there can be no safety where the Feet are advanced above the Head or where they undertake to govern whose duty it is to be governed What a dismal confusion would it introduce in a Family if Children should be permitted to despise their Parents or Servants to dispute the commands of their Masters In what a desperate condition is that patient that will not be ruled in all things by his Physician And what hopes can there be of that Ship where the Marriners refuse to obey their Pilot Surely God hath ordained and humane reason upon tryal hath found it necessary that for the preservation of humane Society some should Command and some Obey To the Testimony of St. Paul we shall add that of St. Peter whose words are these 1 Pet. 2.17 18 19. Honour the King Servants be ye subject to your Masters with all Fear and not only to the good and gentle but also to the froward For this is Thank-worthy if a man for Conscience towards God endure grief suffering wrongfully For what glory is it if when ye be buffetted for your faults ye take it patiently But if when ye do well and suffer for it ye take it patiently this is acceptable with God And this he by and by confirms by Christs own example Which Clemens also in his Constitutions thus expresseth The servant that feareth God saith he will serve his Master also with all faithfulness yea though he be impious and unjust Whence we may observe two things First That under the subjection that servants are in even to hard Masters is also couched that of Subjects unto Kings though Tyrannical And therefore as a little before he commanded subjection to every humane ordinance that is to the Laws and Constitutions of Princes without distinction for when that Epistle was written there were very few Princes that were not Idolaters yet submit we must saith St. Peter for all that and that Propter Dominum For the Lords sake So what follows in the same Chapter being built upon the same Foundation respects the duty as well of Subjects as of Servants And so requires the same Obedience as well Passive as Active Such as we usually pay to our Parents according to that of the Poet Thy Parents Love if Good If Bad yet bear And that also of Terence To bear with Parents Piety commands And that likewise of Cicero in his Oration for Cluentius Men ought not only to conceal the Injuries done unto them by their Parents but to bear them with patience A young man of Eretria that had been long educated under Zeno being demanded What he had learned Answered Meekly to bear his Fathers wrath So Justin relates of Lysimachus Lib. 15. Lib. 27. That he endured the reproaches of the King with the same calmness of Spirit as if he had been his Father
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be
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
they 're left forlorn And yet may those also be adopted Sons if the Laws forbid not as it was anciently permitted among the Romans by the Laws of Anastasius But afterwards in favour to lawful Marriage there was a more difficult way found to make Bastards equal to such as were Legitimate namely by the free offer of the Court when they say cause or by the subsequent Marriage of the Mother of the Child Thus did old Jacob adopt his Natural Son s making them equal to his Legitimate and giving them equal shares in his Inheritance But the contrary may sometimes happen not only by the prohibition of the Law but even by agreement when it is agreed on by both parties before That they that are to be born by that Wedlock shall receive only Aliment but no part of the Ancient Inheritance And such a Marriage the Hebrews call Concubinary although made with a Free-woman Such was that of Abraham with Keturah called therefore his Concubine Gen. 25.6 whose Children together with Ishmael the Son of Agar his Bond-maid are said to have received gifts that is Legacies but no part of the Ancient Inheritance So it was anciently among the Mexicans who gave all to the eldest son but nothing to the rest but sustenance only And not much better are second Marriages in Brabant where the Children by the second Venter have no Propriety in the Estate which the Father held at the death of his former Wife The like Law we find among the ancient Burgundians IX If a man dye Childless and Intestate to whom shall the Estate descend The Fathers Estate to his Relations the Mothers to hers The ancient Estate to be continued in the same Tribe If a man dye Childless and withal Intestate on whom the Succession should descend is not easily to be determined There being no one thing wherein the Laws do more differ All which differences may notwithstanding be reduced under two Heads whereof the one hath respect to the nearest of kin the other to the several Spring-heads from whence it descended That which came by the Father to his Relations and that which came by the Mother to hers But here we must distinguish between the ancient Inheritance and that lately purchased That of Plato must be understood of the former Ego Legum conditor c. I being a Law giver saith he do ordain That neither your Persons nor Patrimonial Estates are in your own power fully but your stock and lineage have a Right thereunto as well they that now are as they that are to come Whereby it seems that Plato would have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Ancient Inheritance preserved intire for that Tribe or Kindred by which it came Which I would not have so to be understood as though it were not naturally lawful to dispose of any goods that descend unto us from either Parents or Ancestors otherwise For sometimes to relieve the wants of a Friend who hath well deserved of us is not only commendable but necessary But that in a case ambiguous it may appear what we ought to believe the will of the Intestate was For we take it as granted That he that dies hath at his death a full Right to dispose of his Estate But since it is impossible for him to retain this Right being dead and that it may be presumed That he would not altogether lose that Right whereby he might gratifie his Friends It concerns us to enquire in what order this benefit should naturally descend Wherein that of Aristotle is most rational Potius est gratiam referri ei qui benefecit quam amico conferre beneficium That it is better to return thanks to our Benefactor than to oblige new Friends For as Cicero saith truly There is no duty so necessary as that of Gratitude Our Benefactors are first to be gratified and then our Friends obliged For since Liberality hath but two Branches whereof one is to do good the other to repay good the former we may do if we will but the latter we must do if we would be honest and can do it without injuring any So St. Ambrose It becomes every man to have a greater respect unto him from whom we have received a Courtesie than unto others And presently after What can be more against our duty than not to return what we have received Now our Gratitude is exprest either to the living or 〈◊〉 the dead as Lisias observes in his Funeral Oration It is shewed in doing good to their Children being naturally the surviving parts of them and unto whom their parents if living would have been most beneficent In me conferes quicquid in liberos meos contuleris saith the Fisher-man in Procopius Procop. Pers 1. who was about to adventure his life against a Dog-fish to gain a very great Pearl for the Emperour Cosroe That is the best Gratitude that is shewed to the dead For what O Emperour thou shalt confer on my Children if I perish thou bestowest upon me And according to this rule did they walk who framed the Justinian Laws in that question concerning whole and half Brothers and in that concerning Cousins in Blood and in some others Brothers saith Aristotle do love each other being born of the same Parents Ortus communis ipsos quasi eosdem facit One common blood whereof they are made makes them almost one and the same Whence frater is quasi fere alter A Brother is but almost another or as one cast in the same mould For as the highest bond of Love is deservedly that which Children owe their Parents Val. Max. lib. 5. c. 5. from whom they receive the most and the greatest benefits as their lives and livelihoods So the next is that of Brethren to each other as having received the same benefits together from the same Parents And therefore for Brethren dying Childless and Intestate to succeed one another is according to Justin the Common Right of Nations But in case he from whom the goods last descended be not to be found nor any of his Children it remains that the thanks be paid to them to whom though not so much yet next after him they are notwithstanding due namely to the Parents of the next degree above him and to his Children Especially seeing by this means it may be continued between the Kinsmen both of him whose inheritance it was and of him from whom the said goods first descended So the same Aristotle Cousin Germans and the rest of our Kinsfolks are linked together by their Parents as being born of one common stock yet so as some are more nearly allyed than others according to their respective birth Thus by the Law of Moses the Unkle succeeded after the Brothers as being nearer unto the first Owner than the Brothers Children Numb 27.10 11. X. An estate lately gained to the next of kin But as to that part of the estate that is but lately acquired because there lyes no obligation of thankfulness
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
the Sabbath was instituted whereon he imprinted such an indelible Character of Holiness That it is more indispensable than any other Right whatsoever For if a man did eat of meats forbidden or transgressed in any other case his punishment was left as arbitrary to the Judges but he that violated this Right was peremptorily to die the death because he seemed thereby to renounce his belief of the Worlds Creation Abnegationem Mundi à Deo creati continebat Sabbathi violatio For as he that wrote the Answers to the Orthodox very well observes God did therefore give a greater honour to the seventh number than to the rest Ad Quaest 69. that so the memory of the Worlds Creation might be preserved Now the Creation of the World doth tacitly declare both the Goodness of God his Wisdom his Eternity and his Omnipotency from which contemplative Notions these practical Duties will easily follow That God is to be Honoured Loved Worshipped and Obeyed wherefore Aristotle concludes Top. 1.9 That he that denies that God is to be honoured or Parents reverenced That there is a Creator prov'd by the nature of the Creatures is not to be convinced by arguments but by punishments To demonstrate the truth of these contemplative Notions of God we may draw arguments from the Nature of the Things Created amongst which the most forcible is this That some things are made is manifest to our sense but these things that are made if we will trace them up in their direct series will certainly at length bring us to something that was not made which must needs be Eternal and that is God but for those that are not able to comprehend the strength of this argument it may suffice to know That these contemplative notions of God have been assented unto in all ages and in all places some few only excepted and by all persons as well gentle as simple as well by those who have been too simple and ignorant to deceive others as by those who have been too wise to be deceived by others which universal consent Universal consent among such variety of other Laws and opinions doth evidently witness That this truth was delivered unto us from our first parents and was never yet solidly confuted and even this alone had we no other ground to ascertain our perswasion was enough Philo argues this case thus De unius imperio Nothing made by art can come by chance but the worlds composure is done with exquisite art therefore it must needs be made by one that is the most perfect of all Artists and that is God And hereby ariseth this first perswasion That there is a God Thus likewise Tertullian argues against Marcion The first knowledge of God we derive from nature the next by doctrine that from nature we learn by his works that by doctrine from preaching whereupon Cyprian in his Book concerning the vanity of Idols concludes thus Haec est summa delicti nolle agnoscere quod ignorare non possis This is the heighth of wickedness that thou wilt not acknowledge him as God whom thou canst not deny to be so We are all of us though untaught naturally perswaded that there is a God saith Julian to Heraclitus unto whom we look unto whom we run and towards whom I believe our souls do as naturally turn as our eyes to the light or as the needle to the North. Thus doth Dion Prusiensis ground his belief that there is a God first upon natural reason and then upon universal tradition De coelo l. 3. De leg 10. And Plutarch calls it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 An ancient perswasion than which nothing can be more certain For as Aristotle saith All men have naturally some perswasion that there is a God Of the same opinion was Plato Now to detract from the authority of so many and so great witnesses is not simply ignorance but a pertinacious madness XLVI They that contradict these may be punished Wherefore they are not without sin who because they are not so quick-witted as either to assert these notions by arguments of their own or to understand those framed by others do wilfully reject them since they do both guide us unto that which is honest and the different opinion is not built but upon a very sandy foundation But because we are now treating of Punishments and those only humane we must here distinguish between these notions themselves and the manner of dissenting from them These notions that there is a God one or more I here dispute not and that he takes care of humane affairs as they are most generally received so are they to the establishment of Religion whether true or false Heb. 11.6 most necessary He that cometh to God saith the Authour to the Hebrews that is He that is religious for Religion amongst them is called an access unto God must believe that God is and that he dispenseth rewards to those that serve him There hath ever been and now are saith Cicero some Philosophers who hold that God hath no regard to the affairs of men which if true Quae potest esse pietas quae sanctitas quae religio saith he What piety can there be what holiness what religion This saith Epictetus is the principal office of piety to have a reverent esteem of the Gods as namely that they are and that they dispose of all things with justice and righteousness Lib. 2. c. 31. Aelian professeth that he never found any Nation no not amongst the Barbarians which did wholly Apostatize unto Atheism but that all of them did acknowledge some Divine Power that took care of them The first part of Divine worship Ep. 95. saith Seneca is to believe that there are Gods and then to ascribe unto them all majesty and acknowledge their goodness without which there can be no majesty Plutarch in his vulgar conceptions saith That if we take away providence we darken that small light that we have of God For saith he we are to conceive of God not only as he is immortal and in himself most blessed but as he is most affectionate to mankind ever watching over us to do us good For otherwise if he will do us neither good nor hurt saith Lactantius to what end do we worship him And indeed if we look only at the influence which these notions should have upon mens manners it is all one to deny that there is a God and to deny that he hath any respect to humane affairs wherefore that in almost all Nations that are to us known and throughout all ages these two notions should be thus maintained is not arbitrary but purely necessary Seneca in his 117 Epistle Sen. Epist 117. pleads thus That there are Gods amongst other things we may hence conclude that nature herself seems to have insculpt this opinion in every man neither is there any Nation in the World so desperately wicked as not to believe that there are
than both the former namely That thereby he is compelled by the Law against his will to do good in a matter of the greatest concernment to a person whom he hates and whom he wisheth it were in his power everlastingly to vex and torment whereas the Servant for the wrong he hath suffered receives this double comfort first that he enjoys what of all things he most desires to wit his liberty and then that he is for ever freed from the commands of so cruel and severe a Master V. Nor to impose too hard labour upon him Neither are we to impose upon them too hard labour without regard had to their strength and health To this end with some others was the Sabbath by the Mosaical Law instituted namely That Servants as well as Beasts might enjoy some refreshment from their labours Do ye not observe saith Seneca * Ep. 47. how careful our fore-fathers were as well to prevent all occasions of envy to Masters as of reproach to Servants when they stiled the Lord Exod. 20.10.23.14 Deut. 10.14 Pater Familias The Father of the Family And his Servants Familiares His familiar Friends So in another place he bitterly inveighs against the too strict exaction of Servants labours where speaking of such he saith Ep. 107. Nos non tanquam hominibus sed tanquam jumentis abutimur Whom we abuse not as Men but as Beasts And Dion Prusaeensis describing a good King saith That he is so far from usurping the title of Lord over his Subjects being Freemen That he will hardly admit of it over his Servants Vlysses in Homer professeth Od. 1. That those of his Servants whom he found faithful were as dear unto him as his own Son Telemachus Gratius est nomen pictatis quam potestatis Tertul. Much more graceful is that name which imports Piety than Power and better it is to be called the Father than the Lord of a Family Neither is there any other reason saith Lactantius Lib. 5. c. 15. why we call each other Brethren but because we believe that we are all by nature equal For since we esteem all humane things not from or by their Bodies but their Spirits though the condition of the bodies be diverse yet are they not unto us Servants but we both esteem of them and call them in spirit Brethren but in Religion our fellow-servants De moribus Eccl. Thus also St Augustin concerning the customs of the Catholick Church Thou i. e. the Church teachest Servants to adhere to their Masters not as prest thereunto by necessity but out of delight they should take in doing their duty Thou teachest Masters in imitation of God who is the supreme Lord and Master of all to be gentle and merciful to their Servants and to be always more propense to exhort and admonish them than by force to compel them to do their duty And in case they transgress rather to correct them as Sons than to rage and tyranize over them as Slaves The like advice doth St Hierome or Paulinus give unto Celantia concerning Servants So order and govern thine House as though thou wert rather a Mother than a Master in it And invite thy Servants to reverence thee not by thy sharpness but by thy meekness and benignity De Civit. Dei l. 19. c. 16. And St Augâ—stin observed That in antient times good Parents governed their Families in this order As to temporal things the condition of their Children was much better than that of their Servants but as to Religious duties they made no distinction but Servants as well as Children were with the same affection instructed in the true worship of God From whence every Master was called Pater Familias which in time grew so common That even they that lorded it over their Servants with the greatest severity would not willingly be called Lords And for the very same reason were Servants called Children as Servius notes upon that of Virgil Claudite jam rivos pueri c. Tacitus commends the Germans That they made the same account of their Servants as they did of their Farmers or Tenants And Theano in an Epistle of his prescribes a just measure for Servants namely That they should neither be tired with over much labour nor weakned through want or poverty VI. The Stock of the Servants how far the Lords and how far his own To Servants for their Labour we owe Aliment So saith that wise Son of Syrach Bread correction and work are due to a Servant Of the same opinion was Aristotle * Oecon. l. 5. The reward of a Servants work is Aliment Neither are they much out who command us to use our Servants as we do Mercenaries Operam exigendo justa praebendo By exacting their work and withal paying what is their due So provide for thy family saith Cato that they be not pined through hunger nor starved through cold There is somewhat saith Seneca †De benef l. 2. that a Master owes unto his Servant that is Food and Rayment And in another place * Idem de tranquilitate Familia vestiarium petit victumque A Family requires Food and Rayment For this it is that the Roman Captives plead unto Bessus †Procop. Goth. 3. Give us say they at the least Food as we are thy Slaves not as much as sufficeth though our necessities require it yet so much as may keep us alive St Chrysostome gives this advice to the Master of a Family * In Eph. 5.2 If thy Servant perform his dayly labour for thee do thou feed him and besides his food provide that he be well clad and well shod and this is some kind of service that we owe unto our Servants for unless thou do this office for him neither will he do his duty to thee but will remain free Neque ulla eum lex constringit si non alatur operas praestare For there is no law to enforce him to perform his duty if thou neglect to perform thine The proportion allowed to every Captive amongst the Romans was four Roman Bushels of Corn for every Month Phorm Act. 1. scen 1. every such Bushel containing of our measure about three Pints and ten Ounces above our Peck as Donatus upon Terence informs us Thus also Martianus the Lawyer Some things there are which of necessity the Lord must do for his Servant namely to provide for him meat and cloathing 〈…〉 7. 〈…〉 11.1 Lib. 1. The Sicilians stand condemned by all Historians for their cruelty in famishing the Athenian Captives So also doth Isaacus Angelus for the like cruelty to the Sicilian Captives as Nicetas records who also recites an Epistle sent by the King of Sicily to the Grecian Emperour concerning this matter Besides Seneca in the place before quoted proves That Servants are in some sort free and in some things able to oblige their Masters by some courtesies as when they do more than is imposed on