his gains but if the thing taken away do perish then the value of it not to the highest rate nor to the lowest but moderated Among these we may also rank such as defraud Princes of their lawful Customs and Contributions In like manner are they bound to reparation that have wronged others by either their unjust sentence or unjust accusation or by their false Testimony XVII In him that by fear or fraud causeth a Promise As also he that shall either by fraud force or unjust fear urge a Contract or a Promise from any man is bound to make reparation to the full For hereby he robs the man he deals with of a double Right First By the nature of Contracts he had this Right That he ought not to be deceived And then by the natural liberty that every man should have He ought not to be enforced or unjustly affrighted And among these we may likewise range those that will not perform what by their Office they are bound to do without Bribes XVIII What if the fear be naturally just But he that hath given just cause why he ought to be by force or fear compelled hath reason to blame himself For an involuntary act arising from a voluntary is naturally reckoned for a voluntary XIX What if the fear be held by the Law of Nations for just But as by the consent of Nations all Wars made and denounced by the Supream power on both sides are reputed just as to to the external effects whereof we shall speak more anon so is the fear of such a War so far reputed just That whatsoever is obtained thereby cannot be required back In which sense that distinction of Cicero's may be admitted which he makes between an Enemy with whom we enjoy by the consent of Nations many common Rights and a Thief or Pirate For if these extort any thing from us by fear we may require it back unless we are bound by Oath not to do it But so we cannot do from an Enemy Wherefore what Polybius writes concerning the Second Punick War namely that the Carthaginians had just cause to make it because the Romans by denouncing War against them whilst they were engaged in another War against their Seditious Mercenaries had enforced them from the Island of Sardinia and a great sum of money hath indeed some shew of Equity but is not agreeable with the Common Right of Nations as we shall elsewhere prove XX. How far the Civil power is bound by Damages done by their Subjects Kings and Magistrates are obliged to reparation if they do not make use of such remedies against Thieves and Pirates to suppress them as they may and ought to do For which neglect the Scyrians were condemned by the Amphictyones I remember that this case was once proposed amongst us when our Estates having granted Letters of Mart against our Enemies some of those to whom these Letters were granted abusing themselves and us had robbed our friends and leaving our Country betook themselves to the Seas and though recalled would not return whence arose this question Whether our States were bound to repair the damages by reason of Letters of Mart granted them either because they made use of such wicked instruments or because they did not require from them sufficient caution that they should not transgress their Commissions Whereunto I gave this answer That they were obliged to no more than to punish them being found or to deliver them up And besides to take care that reparation should be made out of the Goods of the Delinquents A judged case For that the States were not the causes of the depredations nor did they participate of them that they had forbidden them by severe Laws to wrong their friends but to require Caution from them they were not by any Law obliged seeing that they might empower all their Subjects without any Codicils to make what spoil they could of whatsoever was their Enemies as had been anciently done Neither was this permission the true cause of the wrongs done unto their friends seeing that private men might arm their Ships and put out to Sea even without permission Neither could they foresee that these men would prove wicked Nor could they altogether avoid the making use of wicked men for then it was not possible for them to raise an Army Neither if their Souldiers either by Sea or Land did injure their friends contrary to the Command of the Supream Magistrate were they obliged to reparation as might easily be proved by the Testimonies of France and England Yet in a League between Francis de Valois King of France and Henry the Eighth of England Herbert's Henry the 8. page 54. it was agreed the better to prevent Depredations by Sea that no Merchant of either Nation should depart out of their Ports without giving Caution to their respective Admirals that no wrong or molestation should be done by Sea to either of their Subjects But that any man should be bound to repair the Damages which his Servants shall without his fault and against his command do unto others belongs not to the Law of Nations by which this cause ought properly to be judged but to the Civil Law and yet not in the general but as it is introduced for some particular reasons against Mariners and some others And thus hath this case been determined by the Judges of the Supreme Assembly against certain Pomeranians and that according to Precedents of things of the like nature two ages before XXI The owner of a Ship or Beast that hurts his Neighbour not bound by the Law of Nature This also is worthy our observation that it proceeds from the Civil Law and not from the Law of Nature That we deliver up our Beast or Bond-slaves to punishment which have endamaged our Neighbour For the owner of them being innocent is naturally bound to nothing as neither is he whose Ship without his fault falls foul and hurts another though by the Law of diverse Nations as well as ours such Damages are usually divided between both because it is very difficult to be proved XXII The Damage against a mans honour how to be tepaired But the wounds we receive in our Honour or Fame as by Stripes Reproaches Curses and such like must have their proper cures And in these no less than in Theft and other Crimes the hainousness of the fact is discerned by the effect For as in those our reparation consists in the punishment of the Thief so in this The Damage we sustain is repaired by confession of the fault and by exhibiting all due Honour to him who is wronged and the publick Testimony given both of his innocency and our own repentance and such like means Although the offender in this kind may be punished in his purse if the injured person desire it because money is the Common Standard whereby all things tending to profit are measured CHAP. XVIII Of the Rights of Embassages I. There are some
Vejentine Embassadors That unless they departed the City they would shew them no more mercy Liv. l. 27. Id. l. 4. Lib. 10. than Tolumnius their King had shewed to the Roman Embassadors whom he commanded to be killed And as the Samnites declared to the Romans namely That if they entred into any Assembly in Samninus they should not depart in safety This Law therefore reacheth not unto those through whose Territories Embassadors presume to pass without Licence For if they are going to their Enemies or coming from them or do otherwise attempt any Act of Hostility they may be even killed Thus did the Athenians serve the Embassadors passing between the Persians and the Spartans So did the Illyrians Thucyd. l. 2. those that went between the Essians and the Romans Much more being taken may they be bound and kept in Prison as Xenophon past Judgement upon some and Alexander against those which were sent from Thebes and Lacedaemon unto Darius and the Romans against the Embassadors sent to Hannibal But if no such thing be and yet the Embassadors be evil treated the Law of Nations whereof we now speak is not thereby violated but the honour of those Princes either from whom they came or unto whom they were sent is thereby wounded and all friendship with them broken Thus writes Justine concerning Philip the latter King of Macedon Li◠29. That he sent his Embassador with Letters to contract Friendship with Hannibal who being taken and brought before the Roman Senate was dismist with safety Not in honour to the King but lest of a doubtful Friend they should thereby make him their certain Enemy But it is otherwise in case any Prince shall lay in wait to surprize the Embassador of another Prince without his own Territories for this is a violation of the Law of Nations as is plain by the Oration of the Thessalians against King Philip recorded by Livy VI. An Enemy is hereunto obliged if the Embassador be sent unto him But on the other side the Embassage being admitted the Law of Nations protects the person sent even among those Nations that are in Actual Arms one against another much more among such as are barely Enemies It is very true what Diodorus Siculus saith That Heralds enjoy Peace in the midst of War The Lacedaemonians who killed the Heralds sent from the Persians are said to break the Law of all Nations * Vide §. 1. If any man shall strike an Embassador coming from an Enemy he shall be judged saith Pomponius †L. ult D. de Legatis as one that hath violated the Common Right of all Nations because their persons are generally held as sacred And Tacitus calls this Right ‖ Ann. l. 1. Verrin 1. Lib. 5. c. 2. whereof we now treat the Right of Enemies the Sanctimony of Embassies and the Law of Nations approved by God himself So likewise Cicero Nonne Legati inter hostes incolumes esse debent Ought not Embassadors te be secured though among Troops of Armed Foes And Seneca in his Books of Anger He offered violence even to Embassadors thereby spurning at the Law of Nations A villainous Act a wicked Cause an impious Murder as Livy calls it in the Story of the Fidenates assassinating the Roman Embassadors And in another place when their Embassadors were brought into great danger he saith Ne belli quidem jura relicta sunt They had not left amongst them so much as the Rights of War Lib. 4. So Curtius He sent Embassadors to compel them to peace whom the Tyrians killed and threw headlong into the Sea contrary to the Law of Nations And deservedly For even in War many things fall out which cannot be transacted but by Embassadors and very hardly can Peace at any time be made without them VII Neither are Embassadors liable to the Law of Retaliation Another Question doth usually arise namely Whether a Prince may retaliate the wrongs done unto his own Embassadors upon the Embassadors of him who did that wrong And surely we may find in Histories many examples of revenges taken in this way And no marvel for Historians do usually record not only things that are justly and piously done but those also that are done unjustly in heat of anger rashly and impotently But the Law of Nations doth not only carefully provide for the honour of the Person sending but for the security of the Person sent So that there is as it were a silent Contract made between the Embassador sent and the Prince to whom he goes And therefore though there should be no injustice done in respect of the Prince that sends his Embassador as having justly deserved it for the affront given him in the wrongs done unto his Embassador yet to the person sent there would be done a manifest injustice because by vertue of that tacite agreement he might justly claim his Indemnity And therefore it was not only magnanimously but justly done by Scipio according to the Law of Nations who though the Roman Embassadors had been very hardly used at Carthage yet when the Romans brought the Carthaginian Embassadors unto him demanding what should be done with them made answer Nihil tale quale factum fuit à Carthaginensibus Nothing of that which the Carthaginians did unto the Romans Or according to what Livy adds Nihil se facturum institutis populi Romani indignum That he would do nothing unworthy of the Roman Discipline Whereunto Diodorus adds this Reason Lest what we blame in them we justifie in our selves And the Romans themselves though they were not ignorant of what the Carthaginians had done yet dismist their Embassadors in safety Thus did Constantius remit Titianus being sent unto him by Magnentius though his own Embassador Philip sent unto Magnentius had been hy him detained as Zosimon testifies And when long before the Roman Embassador Cornelius Asina was put in Chains by the Carthaginians and Hanno the Carthaginian Embassador being at that time in Rome was afraid of the like measure the Consuls stood up in the Senate and thus bespake him Isto te metu Hanno fides Civitatis nostra liberet Let the Faith of our City Hanno free thee from this fear VIII The priviledge of Embassadors extends to their Retinue Not only the Embassadour himself but his Followers and Goods are to partake of the same priviledge if he please And therefore the Ancient Form of words used by Embassadours and Heralds unto the Kings to whom they were sent were these O King dost thou admit of me as the Royal Messenger of the People of Rome together with my Goods and Followers And by the Julian Law not only they that offered violence to the persons of the Embassadours themselves but they that injured any of their Attendants were found guilty De vi publiea Of violence done by force and arms But this Sanctimony belongs unto them but as they are Attendants to the Embassadour and therefore no further due than he shall please
Hollanders then had with the Spaniards The like hath always been permitted by the French to any Nation that were at Peace with them and that so freely that oftentimes the Enemies have in other mens names transported their Goods without damage as appears by an Edict made 1543. Chapter the 42. and by another made 1584 wherein it is provided that their Friends might freely traffick whither they pleased so as it were with their own Ships Men and Goods and that those Goods were not Belli Instrumenta Arms nor Ammunition for War whereby their Enemies might be made stronger But in case they did so then it might be lawfull to seize them to their own use paying a valuable price for them Wherein two things are observable first That by these Laws Ammunition for War was not held as lawfull prize much less were other innocent Merchandizes obnoxious to this danger I cannot deny but that these Northern Nations have sometimes usurped anothers Right but not constantly being urged thereunto rather by present necessity then by a perpetual equity The English upon pretence of their War would not permit the Danes Freedom of Traffick whence arose that War between those two Nations whereby the English were compelled to pay a Tribute to the Danes which was called the Dane penny which though the Cause were changed yet the name of it continued till the Reign of William the Conquerour as Thuanus records it in the year 1589. Again we find it recorded as well by Rhâ—danus in his History of Holland in the year 1575 oâ— by Master Cambden in his History of Queen Elizabeth in the year following That that most Wise Queen sent her Embassadors Sr William Winter and Secretary Beale to Remonstrate That the English could not endure that the Hollanders in the heat of their War then with Spain should detain their Ships trading in the Spanish Ports And when the English and the Hollanders being both at War with Spain did disturb the Cities of Germany in their traffick with the Spaniards with what a disputable Right they did it appears by the eager dissertations of both Nations which are worthy our perusal for the deciding of this Controversie And it is observable that the English themselves do in their writings acknowledge no less whereas they principally insist upon these two Arguments to defend their Cause namely That the Germans did furnish the Spaniards with Instruments of War and secondly that it had been mutually agreed in Ancient Treaties between both Nations That it should not be lawfull for them so to do The like agreement we find afterwards made between the Hollanders and their Associates and the Lubeckers and theirs in the year 1593. That neither the one nor the other should permit the Subjects of their Enemies to traffick within their Dominions or should aid them with either Men Money Ships or Victuals And afterwards namely in the year 1617. It was agreed between the Kings of Denmark and Sweden That the Dane should obstruct all manner of Traffick with the City of Dantzick being then at Enmity with the Swedes and not only so but that they should not suffer any Merchandizes to pass through the Sound or the Baltick Sea to any of the Swedes Enemies for which the King of Denmark was to receive other Priviledges and advantages from the King of Sweden But these are particular Contracts from whence no general Rule can be inferred Neither did the Cities of Germany only blame the English for denying them freedom of Traffick with their Enemies But the Polanders also complained against them in the year 1597 as Cambden relates That the Law of Nations waâ— violated because they were molested in their Commerce with Spain because at that time the Spaniards had War with England But the French having made Peace with Spain being sollicited by Queen Elizabeth who was still at Enmity with the Spaniard that it might be lawfull for the English to search their Ships for Arms and Ammunition would not admit so much as this alledging that it was but a pretence for rapine and to disturb traffick So in the League that the English made with the Hollanders and their Associates it was agreed That other Nations whom it concern'd to give check to the swelling Power of the Spanish Monarchy should be sollicited to forbiâ— all Commerce with Spain which if they did not voluntarily then that they would permit their Ships to be searched that no Arms or Instruments for War might be thither imported but beyond this neither were the Goods or Ships detained nor any hurt done under that pretence to such as traffick'd peaceably Nay when in the same year several Hamburgers were taken laden mostly with Instruments of War those only were challenged by the English as prize but for the rest of the Commodities they paid the just value But the French when their Ships were seized and confiscate by the English because bound for Spain did declare unto Queen Elizabeth that they would not suffer it It is fit therefore as I have said That there should be Remonstrances and publick Declarations forbidding Traffick with our Enemies before we seize their Goods as Prize So Queen Elizabeth in favour to the King of France against the Spaniard and those of the Holy League See an example of a Declaration made by the English in Cambden about the years 1591. and 1598. sent out her Proclamation commanding that no man should carry Victuals or Provisions for War out of â—ngland into any of the Ports of France possest by the Leaguers or traffick with them uâ—on pain of High Treason And afterwards the War waxing hot it was publickly commanded upon the like pain That no man should carry Corn Munition or Provision for Shipping into Spain because he professed himself an Enemy to England and refused to confirm the Ancient League betwixt their predecessors Neither is it necessary that any Nation should be restrained from their freedom of Traffick by such Declarations but it is left to every Nations choice to do as their own occasions and advantages shall prompt them to there being nothing found in Histories Vid. Thuan. An. 1589. lib. 96. Cambd. An. 1589. 1595. that may probably infer any certain determination of this controversie amongst Nations wherefore such Declarations though published have been sometimes observed and sometimes not accordingly as it stood with the respective advantages of several Nations And for this Cause we refer the decision of this Question to the Law of Nature When the Hansetowns made sore complaints against Queen Elizabeth Cambd. An. 1595. upon Her taking of Sixty Hulks Trafficking to Spain then in open War with England as if their Ancient Priviledges had been broken She answered That she had forewarned them that they should not carry any provision for War to the Enemies of the Realm of England and that carrying them she had lawfully taken them and could do no other unless she would wilfully draw destruction upon her self and People That
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
imprisonment yea and even to death it self This then being agreeable to the Laws of Nature and Nations and being the end of all municipal Laws must needs be the Dictate of right reason and so the voice of God himself whereunto whosoever willingly conforms himself will certainly so moderate his desires that he will never covet what is not his own nor either by force or fraud impoverish others for his own private gain than which nothing can be more unnatural nothing more unreasonable nothing more destructive to humane Society Neither is it against the Nature of humane Society for a man to provide for himself so as he do not damnifie his Neighbour and by consequence that force which doth not violate another mans right is not unjust which the same Cicero thus expresseth Since there are but two sorts of decertations the one by arguments the other by plain force the former being proper to men the other to beasts we ought to make the latter our refuge when by the former we cannot prevail And in another place Quid est quod contra vim fieri sine vi posset Ep. Fam. l. 12. ep 3. What remedy can we have against force but by force So Vulpian To repel force with force is a right that Nature ordains for all creatures Arms against Arms all Nations do allow Ovid. II. This proved by Histories What I have already laid down namely that it is not every War that is repugnant to the Law of Nature may be farther justified out of the Sacred Story For God by his High-Priest Melchisedeck did approve of the War made by Abraham and his Confederates upon those four Kings that came to plunder Sodom Yea and Melchisedeck blesseth God for the Victory Blessed saith he be the most high God who hath delivered thine enemies into thine hand Gen. 14.20 And yet had Abraham no special Commission from God for it but was excited and perswaded thereunto by the mere Law of Nature being himself a man not only exceedingly holy but very wise according to the Testimony that Berosus and Orpheus give of him The War made by the Israelites upon the seven Nations whom God delivered up unto them I purposely omit because they had a special warrant from God to make War upon that people who had highly provoked him and therefore those Wars are in holy Writ called The Wars of the Lord being undertaken by Divine not humane authority More to our purpose was that War made by the Israelites under the conduct of Moses and Joshua against the Amalekites who had forceably opposed them in their passage towards Canaan which though it was not commanded to be done yet being done was approved of by God Exod. 17. Exod. 17.14 Nay farther God himself prescribed unto Moses certain general and lasting Rules and Ordinances how he should make War whereby he sufficiently testified That War might sometimes be just Deut. 20.10.15 though we have no special command from God to make this or that War for there Moses makes a manifest difference between the case of the seven Nations and the case of other people For these they might receive to mercy but not them And seeing he doth not prescribe for what particular causes they might make a just War it may reasonably be presumed that those causes may easily be discerned by the very light of Nature such was the cause of the War that Jephtha made against the Ammonites for the defence of their boundaries Judg. 11. And that which David was enforced upon against those who had violated the rights of his Ambassadors 2 Sam. 10. And it is worthy to be observed what the Author to the Hebrews records concerning those pious Heroes Gideon Baruck Sampson Jephtha David Samuel c. That by faith they subdued Kingdoms and put whole Armies of the aliens to flight Heb. 11.34 Where under the notion of faith Heb. 11.34 is included a full assurance they had that what they then did was acceptable to God And upon this presumtion also it was that David is said by a wise woman to fight the Lords battle and made a pious and just War 1 Sam. 25.28 which could not be if all manner of War had been utterly unlawful III. By examples To the authority of Sacred Story we may add for greater confirmation the universal consent of all or at least of the wisest of all Nations concerning that force whereby our lives are defended Cicero gives us the Testimony of Nature it self Est haec non scripta sed nata lex This saith he is no written Law but a Law that is born with us Pro Miloâ—e that if our lives be endangered either through force or Treachery all means we can use for our safety are just and honest And again This the learned are taught by reason the unlearned by necessity the Nations by custom and the very beasts themselves by natural instinct to repel by all means whatsoever all force and violence that shall be offered us whereby our bodies our members or our lives shall be endangered So Cajus the Lawyer Against all imminent dangers De Bello Jud. l. 3. c. 25. natural reason teacheth us to defend our selves And Florentinus Whatsoever any man doth in his own defence is just and lawful Josephus also informs us That to preserve life is a Law that Nature her self hath imprinted in all living Creatures And for this cause it is that they who endeavour to dispoil us of our lives are justly accounted our enemies Which indeed hath so much of natural equity that even amongst beasts who as I have said already have nothing of Justice or Law among them more than a faint shadow or resemblance of it we distinguish between that beast which of his own accord assaults us and that which assaults us in its own defence And Vlpian notwithstanding that he had said before That Beasts wanting the use of reason could not be said properly to do wrong yet he presently subjoyns that when Rams or Bulls fight and kill each other by the Law of Qu. Mutius they were to distinguish between them so that if he perished that was the aggressor the action was null but if he perished that was provoked the action was good The ground of which Law is set down by Pliny Because saith he there is no sensible Creature but what is impatient of an injury and being assaulted will assault again For as he well observes Lyons will not prey upon Lyons nor Serpents bite or sting Serpents yet if any violence be offered them there are none but will express somwhat that is like unto anger none so stupid but being hurt will to his utmost power defend himself so that in all contests that which is defensive is the most just because Natura potior est salus nostra quam adversarii pernities * Quintil. l. 7. c. 2. See Philo in the Prefâ—ce upon the fifth Commandment Our own preservation is more agreeable to
also those that succeed to them in a right line hold their Kingdoms by an Usufructuary right that is they hold them as to all the rights and profits but not to alienate them But others hold their Kingdoms by a full Right of Propriety as they that by a just War have conquered them Or he to whom any people to prevent greater mischiefs have yielded themselves Subjects for protection so as they reserve nothing unto themselves Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power because it was not perpetual For the Nature of all Moral things are best known by their operations Wherefore those powers that have the same effects are to be called by the same name But a Dictator during his time exerciseth all Rights that a King doth who holds his Kingdom by a full right Neither can any Act of his be made void by any other as may appear by the Case of Fabius Rutilianus whom when the people would have preserved they could deal with the Dictator by no other means but by Petition Whence we may conclude That he had the same supreme power Now the Duration or Continuation of a thing alters not the nature of it yet if question be made concerning the dignity which is usually called Majesty doubtless he that hath it perpetuated unto him hath the greater Majesty than he that hath it for a time limited only because the manner of holding it adds much to the Dignity of him that holds it Now what hath been said of Kings Protectors have absolute power during their time may also be said of such as are either during the Minority of Kings or during their Captivity or Lunacy appointed Protectors For neither are those subject unto the people nor is their power revocable before the time come appointed by the Laws But it is otherwise with those who have a Right which is at any time revocable Some Kingdoms held during the plâ—asure of the people Procop. Vand. lib. 1. As they who reign only during the pleasure of others such was the Kingdom of the Vandals in Africa and of the Goths in Spain who were as often deposed as they displeased the people And every act of theirs might be made void because they who gave them that power gave it under condition of Revocation And therefore not having the same effect they could not be said to have the same Right XII Some Soveraign powers are held fully with a right of alienation Against what I have before said That some Kingdoms are held in full right of propriety that is as Patrimonial There are very learned men that make this objection That Men being free are not to be traffickt away from one to another as things that are bought and sold But as the power of a Master is different from that of a King so is personal liberty from that which is Civil And the freedom of singular persons from the freedom of States The Stoicks themselves confess That there is a kind of servivitude in subjection Hottom Cont. illust qâ—ae i. 1. Diog. Laâ—â—t 1 Sam. 22.28 2 Sam. 10.2 1 King 9.22 Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants As personal liberty excludes the power of a Master so also doth civil liberty that of Empire and all manner of Soveraignty properly so called Livy thus opposeth them Before men had tasted the sweetness of liberty they desired a King And again What a shame is it for the people of Rome who when they served under Kings were never straitned by War nor besieged by an enemy Lib. 45. being now a free people to be besieg'd by the Hetruscans And in another place The people of Rome live not now under Kingly Government but in liberty And elsewhere he opposeth those Nations that were free unto those that lived under Kings So also Seneca the Father Sâ—as 1. We ought not to give our opinions in a Free state in the same manner as we did under Kings Yea and Cicero Either we did not well to expel Kings or we ought to restore the people to liberty De leg 3. Ann. l. 1. not in words only but in deeds After these comes Tacitus The City of Rome saith he was at first governed by Kings but it was L. Brutus that instituted Liberty and Consular Authority And to be short every where among the Roman Laws when they treat of War and recuperatory Judgements all Foreigners are distinguisht into Kings and Free people The question then here put respects not personal but civil subjection In which sense some Nations are said not to have power over themselves Hence is that in Livy Which Cities Fields and Men were sometimes under the power of the Aetolians And that also Are the people of Collatia a free people i. e. have they any power over themselves Nevertheless to speak properly when any people are said to be alienated When a Kingdom is alienated it is not the people but the right of governing them that is alienated it is not the men but the perpetual right of governing themselves as they are a people that is alienated As vain and frivolous is that Inference which concludes That because Kings conquer Nations by the blood and sweat of their Citizens therefore what is so conquered ought of right to belong rather to them than to him For possible it is That that King may pay his Army out of his own private estate as M. Anthony did in his Bohemian Wars who when the Roman Treasury was exhausted being unwilling to impose any more Taxes upon the people brought into Trajans Court and made sale of all his Vessels of Gold Silver Crystal and Myrrh together with his own and his wives Robes of Silk and Gold and all other their Ornaments and Jewels for the maintenance of the War Or he may pay his Army out of the rents and profits of that patrimony which attends the Principality And therefore Ferdinando claimed to himself all that part of the Kingdom of Granada which he had gained with the rents and profits he had raised out of Castile during the time of his Marriage as Mariana testifies Lib. 28. Hist Hispan For although a King have but the mean profits arising out of that Patrimony in the same manner as he hath the right of governing the people who have elected him yet are those profits properly his own As it is also in the Civil Law where though the Inheritance be judged to be restored yet the profits are not because they are perceived not from the inheritance but from the thing it self Possible therefore it is that a King may be so possest of the Government over some people in his own proper right that it is in his own power to alienate it As it was granted to Baldwin by those that accompanied him in his expedition to the Holy Land That the half of
all the Cities Provinces Tributes and Prizes that should be taken in that War should be his Strabo tells us Lib. 8. That the Isle Cythara lying against Tenarus did belong to Euryclis one of the Lacedaemonian Princes in his own Right So we read that Solomon gave Hiram of Tyre twenty Cities not of those that belonged to the Hebrews 1 Kings 19. For Cabul which was the name imposed on those Cities was seated without the Hebrew bounds Jos 19.27 But out of those which the people that were enemies to the Jews 1 King 9.6 12. had held till the days of Solomon and were partly conquered by the King of Egypt and given unto Solomon in dowry with his daughter and partly conquered by Solomon himself For that these Cities were not at that time possest by the Hebrews is evident from this 1 Chron. 8.14 That as soon as King Hiram had restored them to Solomon he then planted in them a Colony of the Jews Diod. l. 4. So we read that Hercules gave the Kingdom of Sparta which he had conquered by arms unto Tindareus on this condition That if Hercules should have any children of his own she should restore it to them And having conquered the Epirots he gave them to Apollo So we read that Aegimus King of Doris Serv. ad 4. Aenead Apollod having called to his assistance Hercules in his War against the Lapithae gave him a part of that Kingdom as his reward Cychreus King of Salamine having no children left his Kingdom by his Testament unto Teucrus Amphipolis was given in a Marriage dowry to Acamantes the Son of Theseus And in Homer Agamemnon promises to give unto Achilles seven Cities So King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Vid. Serv. ad 6. Eclog. So again in Homer we read that Jobates gave his daughter to Bellerophon with a part of his Kingdom in Dowry And Justin tells us Lib. 5. That Darius bequeathed by his Testament his Kingdom to Artaxerxes but the Cities whereof he was governour only to Cyrus And probable it is That the successors of Alexander every one for his part did succeed him in that full Right of Governing the Nations which were either formerly under the Persian Empire or which they afterwards gained by the right of their own Conquests And therefore it is not to be wondred at that they claimed unto themselves the Right of Alienation So when King Attalus the Son of Eumenes had by his Testament made the people of Rome heir to all his goods they under the name of goods possessed themselves of his Kingdom whereof L. Florus speaks thus The Word Heir implying an Inheritance Lib. 2. Epit. Liv. 58. the people of Rome held his Kingdom as a Province and not as gained by War or by force of Arms But by what was yet more righteous by a Testamentary Right So when afterwards Nicomedes the King of Bithynia dying made the Romans his heir They presently reduced his Kingdom into the form of a Province Orat. 2. In Rullum Whereof Cicero thus We have added to our Inheritance the Kingdom of Bithynia So that part of Libia wherein the Cities Berenice Ptolomais and Cyrene stood was by King Appio given by Testament to the same people And Tacitus makes mention of some Fields Epitom Livy l. 43. Ann. l. 41. which belonging formerly to King Appio were by him left together with his Kingdom to the people of Rome Procopius likewise tells us That King Arsaces by his Testament divided the Kingdom of Armenia leaving the greater Armenia to Arsaces and the lesser to Tigranes And hence it was That King Herod having obtained from Aug. Caesar a Power to leave his Kingdom to which of his Sons he pleased Josephus was so often observed to alter his Testament This custom also was much in use amongst the Goths and Vandals Procopius in those Kingdoms which they held by Conquest The same we may observe much practised among the Turks Sultan Aladine bequeathed by his Will many Cities to Osman Leunclavius lib. 2. Bajazet also gave diverse of the Cities of Servia to Stephanus in favour to his own Wife being Sister to Stephanus Sultan Mahomet bequeathed his Kingdom by his Testament to Sultan Morat Idem lib. 4. and Mahomet the Turk intended to have divided his Empire and to have left the Asian Empire to Mustapha and the European to Amurat. This also was frequently used in many other Nations To rehearse them all would be no less troublesome to me than it would be tedious to the Reader But these may suffice to prove That where Kingdoms are held by a full and absolute Right they may be alienated Yet so That though the Right of Empire may be transferred yet doth every singular person enjoy his own Liberty XIII Some are held not so fully But in those Kingdoms wherein the people have any power by way of Election or Confirmation I confess it cannot be presumed That it was ever their Mind to suffer the King to alienate his Kingdom Wherefore what Crantzius observed in Vnguinus as an Act without any Precedent That he had by his Testament given away Norway we ought not to disapprove For haply he regarded only the Customs of the Germans amongst whom there was no such Right permitted as to bequeath Kingdoms For as Vopisâ—us in Tacitus saith Empires cannot be bequeathed as goods and bond-slaves may Nor can a King as Salvian observes by his Testament bequeath the people whom he hath governed to the poor Now whereas Charles the Great Lewis the Good and others afterwards among the Vandals and Hungarians are said to dispose of Kingdoms by their Testaments These afforded rather matter of praise among the people than argued the force of a true Alienation And as to that of Charles Ado makes special mention that he desired his Testament might be confirmed by the Peers of France The like we find in Livy concerning Philip King of Macedon who endeavouring to expel Persis out of his Kingdom and settle Antigonus his own Brothers son in it went throughout the Cities of Macedon solliciting the Princes on his behalf Neither is it to the purpose to object That the same Lewis restored the City of Rome to Pope Paschal Considering that the French having before received the Soveraignty over that City from the people might very well restore it back again to the same people in the person of the Pope being their chief Citizen and a Prince of the first order XIV Some power not Supreme yet fully held What we have hitherto admonisht namely That we are carefully to distinguish between the supreme power it self and the manner of holding it is so true That as many Soveraign Empires are not held by a fast and absolute Right so there are many that are not supreme that are fully and compleatly held whereby it falls out that Marquisates and Earldoms are much more easily either
Chrysostom When the Empire of the Jews began to decline and they made Tributaries to the Romans They neither enjoyed that full liberty which they did formerly nor were they in that pure subjection as now they are But were indeed honoured with the Title of Associates yet they paid Tribute to their Kings and received Governors from them Moreover they had the free use of their own Laws so that if any of their Countrymen offended they themselves punished them by their own Laws And yet I deny not but even this very acknowledgment of their own weakness and insufficiency doth somewhat abate and detract from the Majesty of their Empire XXIII Of such as hold their dominions in Feud But that which seems to some to be more difficultly to be answered is when one Prince holds his Dominion from another as being Lord of the Fief which yet may be sufficiently answered by what hath been said before For in this Contract which is peculiar to the German Nation and no where found but where they have planted themselves two things are especially to be observed 1. The personal Obligation 2. The Right in the Thing so held The Personal Obligation is the same whether a man possesseth the very Right of Soveraignty or any thing else though lying elsewhere by vertue of the Fief but such an Obligation as it takes not from a private man the right of Personal Liberty so neither doth it diminish any thing in a King or State of the Soveraignty which is Civil Liberty which is easily to be understood by those Lands which are called Free-holds which consist in Personal Obligations only but gives no right in the thing so held for these are no other than a species of that unequal League whereof we have discoursed before wherein the one promiseth Fealty and the other safeguard or protection But admit they do swear Faith and Allegiance against all men yet would this detract nothing from the Right of Soveraignty over their own Subjects Not at all in this place to mention that there are ever reserved in these Oaths a tacite Condition that the War be just whereof we shall treat elsewhere But as to the Right in the thihg so held it may be such that the very Right of Governing if held in the right of the Fief or Fee may be lost and so return unto him that gave it as well in case the Family be extinct as also for some notorious crimes and yet notwithstanding in the mean time it ceaseth not to be the Supreme Power For as I said before the thing it self is one thing and the manner of holding it is another And by this Right I find many Kings constituted by the Romans so that the Royal Family failing the Empire did escheat unto themselves as Strabo observes of Paphligonia and some others Lib. 12. XXIV A mans right distinguisht from the exercise of that right Lastly We must also distinguish as in Private Dominion so in Empire between the Right it self and the exercise of that Right or between the first act and the second For as a King though an Infant hath a Right to govern but is not permitted to exercise that Right so he that is mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the good of that Empire that is remote from him Vide Bo. 3. ch 20. §. 3. For in all such cases they have their Lieutenants or Viceroys to act for them wherefore Demetrius living under restraint with Seleucus did forbid any credit to be given to his Letters or unto his Seal Plut. Demetr but commanded that all things should be so governed as if he were dead CHAP. IV. Of a War made by Subjects against their Superiors I. The Question stated II. War against Superiors as such ordinarily unlawful This proved by the Law of Nature III. By the Hebrew Law IV. By the Gospel Law proved by Scriptures V. By the Practice of the Primitive Christians VI. For Inferior Magistrates to make War against the Supreme unlawful Proved by Reasons and Scriptures VII What is to be done in a case of extreme and inevitable Necessity VIII That a free People may make War against their Prince if he be accountable unto them IX And against a King who hath renounc'd his Kingdom X. Or who is about to alienate it as to the delivery of it only XI Or if a King do manifestly carry himself as a professed enemy against the whole Body of his people XII Or shall forfeit his Kingdom by a wilful breach of that condition upon which he was admitted unto the Empire XIII Or if having but one part of the Supreme Power he shall invade the other XIV Or if any such liberty of resistance be in such a case reserved unto the people at his admission XV. How far forth Obedience is due to him that usurps another mans dominions XVI An Vsurper may be killed the War continuing If no Faith nor Agreement be given or made to the contrary XVII Or if Licence be given by an Antecedent Law XVIII Or by warrant from him who hath Right to the Empire XIX Why an Vsurper is not to be killed but in these cases XX. In a controverted Right Private men are not to be Judges I. The Question stated PRivate Men may without doubt make war against private men as the Traveller against the Thief or Robber so may Soveraign Princes and States against Soveraign Princes as David against the King of the Ammonites Private men may make war against Princes if not their own as Abraham against the King of Babylon and his Neighbours so may Soveraign Princes against Private Men whether they be their own Subjects as David against Ishbosheth and his party or Strangers as the Romans against Pyrates The only doubt is whether any person or persons publick or private can make a lawful war against those that are set over them whether as supreme or as subordinate unto them And in the first place It is on all hands granted That they that are commissionated by the highest powers may make war against their Inferiors as Nehemiah did against Tobia and Sanballat by the Authority of Artaxerxes But whether it be lawful for Subjects to make war against those who have the Supreme Power over them or against such as act by and according to their Authority is the thing in question It is also by all good men acknowledged That if the Commands of a Prince shall manifestly contradict either the Law of Nature or the Divine Precepts they are not to be obeyed for the Apostles when they urged that Maxim Deo magis quam hominibus obediendum That God is rather to be obeyed than man Act. 4. unto such as forbad them to Preach in the name of Jesus did but appeal to a Principle of right reason which Nature had insculpt in every mans breast and which Plato expresseth in almost
Ferenda sunt Renum Ingenia The humours of Kings must be endured saith Tacitus And in another place he tells us That good Emperours are to be wished for Ann. 16. Hist 6. but whatsoever they are they must be obeyed So also Livy As the rage of our Parents so the cruelty of our Countrey are no ways to be becalmed but by patience and sufferance For which Claudian highly extols the Persians who obeyed all their Kings equally though never so cruel V. The practice of the Primitive Christians Neither did the Practice of the Primitive Christians swerve from this Law of God which is an undeniable argument that they so understood it For though the Roman Emperours were sometimes the very worst of men and deadly enemies to the Christian Faith yea though there wanted not such under their Government who under the specious pretence of freeing the Common-wealth from Tyranny and Oppression took Arms against them yet could they never perswade the Christians to joyn with them In the Constitutions of Clemens we read Regiae potestati resistere nefas To resist the power of a King is Impious Tertullian in his Apology writes thus What was that Cassius that conspired against the life of Julius Caesar What was that Poscennius Niger that in love to his own Countrey took Arms in Syria as Clodius Albinus did in France and Britain against that bloody Emperour Septimius Severus Or what was that Plautianus who to set the Common wealth free from Tyranny attempted the life of the same Emperour in his own Pallace What was that Aelius Laetus who having first poysoned that Infamous Emperour Commodus fearing it should not take that effect which he desired did afterwards hire Narcissus a strong Wrestler to strangle him Or what was that Parthenius whose fact Tertullian doth so much detest who being Chamberlain to that execrable Tyrant Domitian yet killed him in his own Chamber What saith Tertullian were all these Surely not Christians but Romans Nay so abominated they were by Christians that Tertullian seems to glory in this That though Christians were every where reproached as Enemies nay Traytors to the Imperial Crown yet could they never find any of them either stained with that crime or so much as favouring those Treasonable practices of either Cassius Niger or Albinius When St. Ambrose was commanded by the Emperour Valentinus to give up his Church to be Garrison'd by Souldiers See Gratian c. 23. q. 8. though he took it to be an Injury done not only to himself and to his Congregation but even unto Christ himself yet would be not take any advantage of the commotions that it made among the people to make resistance If the Emperour saith he had commanded what was in my power to give were it mine House Land Goods Gold or Silver how readily should I obey whatsoever is mine I would willingly offer But the Temple of God I cannot give away nor can I yield it up to any man Cum ad custodiendum non ad tradendum illud acceperim Since it was committed unto me to defend and to keep but not to betray And whereas the people being enraged thereby did offer their assistance to repel the Souldiers he refused it saying Lib. 5. orat in Anxen Coactus repugnare non novi Though provoked and compelled thereunto yet withstand or resist I cannot Grieve and weep and mourn I can Against Arms Souldiers and Goths I have no other Weapons but Tears For these are the only Forts and Muniments of a Priest Aliter nec debeo nec possum resistere otherwise I neither ought nor can resist And presently after being commanded to appease the Tumult he replyed That not to excite them was in his power but being exasperated and enraged to appease them was in the sole power of him who when he pleased could still the ragings of the Seas and the madness of the people And in another place he writes thus Epist 33. Will ye hale me to prison or cast me into chains I am willing to suffer neither shall I guard my self with multitudes of people who offer themselves to defend me Neither would he make use of the Forces of Maximus when offered against the Emperour though an Arian and a grievous persecutor of the Church In imitation of whom Greg. l. 6. Ep. 1. Theodoret. Hist Eccl. lib. 5. c. 4. Naz. Orat. 1. in Julian Gregory the Great in one of his Epistles confesseth That if he would have engaged himself in the death of the Lumbards that Nation had at that day had neither King Dukes nor Earls but had been reduced into extreme confusion Nazianzen informs us That Julian the Apostate was diverted from some bloody designs he intended against the Church by the tears of Christians Adding withal That these are our best preservatives against Persecutions And because a great part of his Army were Christians therefore his cruelty towards them would have been not injurious to the Church of Christ only but would at that time have much endangered the Commonwealth Unto all which we may also add that of St. Augustine where expounding those places of St. Paul he saith Even for the preservation of our own lives Prop. 74. we ought to submit to the Supreme power and not to resist them in whatsoever they shall take away from us VI. Inferiour Magistrates ought not to resist the Supreme Some very learned men there are even in this age who accomodating themselves too servilely to the times and places wherein they live do perswade themselves first and then others That though this Licence of resisting the Supreme Power be inconsistent with the condition of private men yet it may agree with the Rights of Inferiour Magistrates nay further that they sin in case they do it not which opinion is to be exploded as Seditious For as in Logick there is a Genus which is called Subalterne which though it be comprehensive of all that is under it as a living creature comprehends both man and beast yet hath it a Genus above it in respect whereof it is but a species As a living creature is to a body which comprehends all sorts of bodies both animate and inanimate The like we may say of Magistrates some are Supreme who rule all and are ruled by none others are subordinate who in respect of private men are publick persons governing like Princes But in respect of the Supreme Magistrate are but private men and are commanded as Subjects For the power or faculty of Governing as it is derived from the supreme power so it is subject unto it and whatsoever is done by the Inferiour Magistrate contrary to the will of the Supreme is null and reputed but as a private act for want of the stamp of publick Authority All order say Philosophers doth necessarily relate to somewhat that is first and highest from whence it takes its rise or beginning Now they that are of this opinion that Inferiour Magistrates may resist the
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
a Globe thereby intimating That both the Earth and the Sea were subject unto him And Constantinus Monomachus is said in History to be Terrae Marisque Imperator Dominus Emperour and Lord both of Land and Sea Goth. 3. Of the right of the Venetians to the Soveraignty of the Sea See Paruta How it is claimed Camden 1602. Thus was the Aegean Sea made a part of the Roman Empire And yet Procopius gives the Dominion of the Sea at and about Marselles to the French The like do other Historians give to the Venetians in the Adriatique Sea Now the Dominion in any part of the Sea may in the same manner be obtained as other Empires are namely as is above said either by the numbers of men as when their Fleet which is nothing else but Exercitus Maritinus a Sea Army doth usually ride in such a part of the Sea Or by reason of their Territory when from the Land they can command those parts of the Seas adjoyning as fully as if it were all dry Land XIV Of the lawfulness of taking Tolls by Sea Wherefore it cannot be thought repugnant either to the Laws of Nature or Nations for such Princes as shall undergo the Charge of maintaining Fleets to secure Passengers from Pyrates or of Sea-Marks or Land-Lights to guide Merchants through dangerous places Plin. l. 19. c. 4. Strabo l. 17. to impose equal and indifferent Tolls upon such as shall receive benefit by them Such was that which the Romans imposed on all Merchants that sailed by the Red Sea to compensate the Charge they were at in sending out every year a Fleet with certain Bands of Archers to secure them from Pyrates that infested those Seas And that Toll which the Byzantines required from those that passed through their Seas whereof Herodian makes mention in the Life of the Emperour Severus And that also which the Athenians did anciently exact when they held Chrysopolis in the same Sea as Polybius testifies and that which the same Athenians required from those that passed the Hellespont when they had taken Byzantium as Demosthenes records The like doth Procopius mention in his Secret History of the Romans in his time The Rhodians also exacted Toll from the Islanders for securing the Seas from Pyrates yea and from Pharo at Alexandria as we read in Ammianus The like doth Caesar testifie of the Venetians whose Seas being Tempestuous and having but few Ports which they themselves held they made all that traffickt in those Seas pay Toll So likewise Florus concerning the Romans That having lost the Soveraignty of the Sea and the Islands being taken from them they were ashamed to pay that Tribute which they themselves were wont to command The same Procopius above mentioned as well in his Publick as Secret Histories speaks of an ancient Tribute paid in the Hellespont as also of a new Imposition exacted in the Streights of the Euxine and Byzantine Seas the one paid at Blackhern the other at Abydos which was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the tenth of the Fraight which was afterwards lessened by the Empress Irene and lastly by the Emperour Immanuel Comnenus granted unto certain Monasteries as Balsamo informs us upon the Fourth Canon of the Council of Chalcedon and upon the Twelfth Canon of the Seventh Synod The Danes in Queen Elizabeth's Reign required a Rose Noble of every Ship and one piece of Money in the hundred Camden Eliz. Anno 1582. 1602. and lastage for securing the English Sailers through their Seas to Muscovy Neither would they permit the English to fish in those Seas without leave or an yearly Toll XV. Some people by agreement forbidden to sail beyond such bounds Some precedents also we find of Leagues whereby one Nation is bound to another that they will not sail beyond such bounds So it was of old Articled between the Kings bordering on the Red Sea and the Egyptians that the Egyptians should not come into that Sea with any long Ship or with above one Ship of Burden Philost de vit Apol. l. 3. c. 11. Plut. Cymo Diod. l. 11. So it was agreed between the Athenians and the Persians in the time of Cymon That no Median Ship armed should sail between the Cyanea and the Promontories of the Mountain Taurus This was that most honourable Peace mentioned by Plutarch wherein it was also agreed That the Persians should not approach nearer unto the Sea than the length of an Horse Race that is than forty Furlongs And in those Annual Truces of the Peloponesian War it was Articled That the Lacedaemonians should not sail with long Ships but with other Vessels which should not carry above the weight of Five Hundred Talents Thucyd. l. 4. And in the first League which the Romans immediately after the expulsion of their Kings made with the Carthaginians Polyb. it was agreed That neither the Romans nor their Associates should sail beyond the Promontory called Pulchrum but if at any time they should either by distress of Weather or by their Enemies be driven beyond it they should carry nothing from thence but necessaries and should also depart within five dayes Whereupon Servius upon that of Virgil Littora Littoribus contraria observes that in that League it was provided that neither the Romans should approach the Carthaginian Shoar nor the Carthaginians the Roman Shoar Such another League there was made between the Romans and the Tarentines whereby it was provided that the Romans should not sail beyond the Promontory Lacinium So in the second League that was made between the Romans and the Carthaginians it was agreed that the Romans should neither traffick nor take any Prizes beyond the said Promontories Pulchrum Massia or Tarseium as also that the Romans should not touch upon the Coasts either of Africa or Sardinia unless it were to receive safe Conduct Liv. l. 48. c. 59. or to repair their Ships And after the Third Punick War we find the Carthaginian Senate blamed for that contrary to their League they had raised an Army and were making Naval Provisions The like we may read of the Sultan of Egypt that by a League made with the Graecians he had obtained liberty to send two Ships every year through the Streights of Bosphorus But yet were not all these sufficient to prove that either the Seas or the Right of Navigating them may be held in Propriety by any one or more people For Nations as well as persons may by contract and agreement among themselves relinquish not only what is properly their own but what belongs unto them in common with all other Nations in favour to those who may reap benefit by it And yet in this case we say not that the Seas could lose their freedom but that the people contracting and their successor are obliged to perform their contract and agreement that so the Law of buying and selling may be preserved And therefore both the present Occupants and they that should
as they are a Nation and all Kings as they are Kings should sympathize with their Neighbour Nations and Kings that are oppressed Neither is every person more bound to defend his own members than Princes are in obedience to Christ to defend each other with that power which he hath given them But this duty neither Kings nor People can well perform whilst Christendom is invaded by the Enemies of Christ unless they do mutually assist each other which can never be done successfully unless they strongly confederate together for that end And such a General League between Christian Princes hath heretofore been made whereof the Roman Emperor was by general consent chosen General whereby all Christians were obliged to contribute either Men or Mony according to their power as to the defence of Religion which is or ought to be the common cause for the neglect whereof I cannot see how any people can plead excuse unless it be such as are engaged in an inevitable War or afflicted with some other general calamity at home XIII If our Confederates are ingaged in several Wars which we ought to assist Another Question doth often arise namely in case two Nations are engaged in War one against the other and both are our Confederates whether of them we are bound to help Where in the first place we must remember what we have already said that ad Bella injusta nulla est obligatio No League can bind us to a War that is unjust He therefore is to be preferred that hath the juster cause if the War be against a stranger Prince yea if it be against another Confederate The words of him that swears Fealty to another are these Si scivero velle te aliquem juste offendere inde generaliter aut specialiter fuero requisitus meum tibi sicut potero praestabo auxilium If I shall understand See Book 3. chap. 25. §. 4. that thou wilt make an offensive War against any man upon a just ground and that I am either generally or specially required to give thee mine assistance I shall do it to my utmost power Thus Demosthenes in his Oration concerning Megalopolis The Athenians are bound by their League to aid the Messenians their Confederates against the Lacedaemonians their Confederates if the Lacedaemonians were the first Aggressors which holds true unless in our Articles it shall be expresly forbidden to send out any aid against such a Confederate Polyb. l. 6. In that Agreement which Hannibal made with the Macedonians there is this Clause Hostes erimus hostium exceptis Regibus Civitatibus c. Quibuscum foedus nobis amicitia est Enemies we shall be to thine Enemies except only such as are in League and Amity with us If two Nations be at War and both our Confederates and neither of them have a just cause which may so happen we are to stand Neuters and to assist neither So Aristides If either of our Confederates had required our aid against strangers it had been readily granted but if against one another we desire to stand Neuters Leuctrica If both our Confederates be engaged in a just War against strangers and both send for Aid if we are able we must send to both either Men or Money But if a Prince shall be required by both to aid them in his own person having so promised then because his person cannot be divided it is but reasonable that he should prefer him with whom he hath contracted the ancienter League As the Epirots answered the Lacedaemonians in Polybius The like answer was given to the Campanes by the Roman Consuls In contracting friends it is fit that we take care that the new do not supplant the old The Ancienter the Leagues are the more Inviolable Thus Ptolomy answered the Athenians in the like case Amicis ferenda Auxilia contra hostes non contra amicos We are to aid our Friends against Enemies but not against our Friends Which also will admit of this exception unless the latter League do bind us farther than our bare promise for it may include a translation of the Government and imply somewhat of subjection And thus we say that in selling of Goods the first sale is the best unless the latter shall also transfer the property and dominion So Livy of the Nepesines That the faith given upon their surrender bound them faster Deditionis quam societatis fides sanctior than that given by former Leagues as to their Associates Some there are that do more nicely distinguish between these But what I have said I take to draw nearest as to simplicity so also to truth XIV When renewed A League for a certain time prefixt is not easily presumed to be renewed through silence unless such acts intervene which cannot otherwise be understood for a new obligation is not easily to be presumed XV. The League is void if either party break it If either party violate the League the other party is freed because each Article of the League hath the force and vertue of a Condition Thus Thucydides determines it They saith he are not the first breakers of the League who being deserted seek for aid to others but they that perform not by their deeds what they have promised to do upon their Oaths And in another place Si vel tantillum ex dictis pars alterutra transgrederetur rupta sunt pacta If either party shall transgress the Articles they have sworn unto never so little the League is broken This also is true unless it be otherwise provided by the League as it usually is lest what is seriously debated and solemnly sworn should be adjudged to be broken upon every rash offence XVI How far Generals engaging are bound if the Prince refuse Sponsions are such promises or undertakings as Generals make without the consent of their Soveraign for the performance whereof they engage themselves or give hostages till it be confirmed by their Prince or Senate The subject matters whereof are as diverse as of Leagues They differ from Leagues in the dignity of those that make them Concerning these Engagements two Doubts usually arise The first is If the matter engaged for be refused by the King or State how far forth are the parties engaged bound Whether to make up what the King or State shall not think fit to grant or to restore all things to the same state and condition as they were in before such agreement was made or to deliver up their own bodies and the hostages to the Will of the Enemy The first whereof is most agreeable to the Civil Law of the Romans The second to Equity and Reason which we find urged by the Tribunes of the people in the Caudine Controversie The third is most approved of by Use and Custome as appears by the examples of the two notable Sponsions made at Caudis and Numantia But by no means may we admit The Sponsions made at Caudis and Numantia that either the King or
Wherefore in case any hainous crime be committed by them they are required to be delivered up by the Embassadour to punishment but they are by no means to be taken from him by force Which when once done by the Achaians who seized upon some Lacedaemonians who attended upon the Roman Embassadours the Romans presently cryed out That they had violated the Law of Nations Whereunto also we may refer the judgement of Salust concerning Bomilcar which we have formerly quoted But if the Embassadour shall refuse to deliver him then we are to proceed in the same manner as is before prescribed against the Embassadour himself But whether the Embassadour have jurisdiction over his own Family or whether his House be a Sanctuary for all such as shall flye unto it for refuge depends upon the pleasure of him to whom he is sent for this belongs not at all to the Law of Nations IX And to their movable Goods The movable Goods also of an Embassadour and whatsoever else shall appertain to his person are not to be received in pawn or attached for any debt neither by any ordinary course of Law nor by the hands of the King himself which some hold as the truer opinion For no force or compulsion must be by any means used against him or his that so he may enjoy an absolute and perfect security And if he shall have contracted any debt and have no real Estate as it usually falls out he must only be fairly intreated to discharge them which if he refuse then is he that sent him to be likewise intreated to pay them But if neither will do it then in the last place we must flee to such Remedies as are provided against such Debtors as do reside in Foreign Countries Yet is it no breach of their priviledge that their Coffers be searched at their first entrance in case it be according to the custom of the Country whereunto they are sent As it happened to Sir Thomas Chaloner in Spain who complaining thereof to Queen Elizabeth and desiring to be recalled Cambden Eliz. Anno 1561. was prudently answered by that most wise Queen That an Embassadour should take all things in good part so as his Prince's Honour was not directly violated X. Examples where there are Obligations but no power to compel Neither is there any cause to fear as some may imagine that if the case be thus with Embassadours no man will trust them or make any Contract with them For the King himself though he cannot be compelled to any thing yet never wants Creditors if they give good prices And among some Nations as Damascen informs us it is customable That as to such debts as are contracted upon trust there is no remedy provided by Law no more than there is against men that are ungrateful So that men in those parts are compelled either to pay readily for what they buy and on both sides to fulfil alike all their agreements or to content themselves with the bare faith and credit of the Debtor Seneca seems to envy the happiness of those Countries by wishing the same custom in all places De benef lib. 3. c. 15. I would to God saith he that we could perswade all people that Moneys lent upon credit should be recovered only from those men who were willing to pay and that no stipulation should bind the Buyer to the Seller and that no written Contracts or Covenants under Hand and Seal should be preserved but rather that the performance of them should be left to the Faith and Honesty of the Debtor Appian relates of the Persians That they hated the borrowing of mony as being an inlet to Fraud Falshood and Perjury Lib. 4. Lib. 15. And Aelian reports the very same of the Indians with whom agrees Strabo in these words Judicia non esse nisi de caede injuria c. There are no Judicatories unless it be for Murders and Injuries done because it is not in the power of any man to avoid these But as to Contracts and Agreements it is in the choice of every man to make them or to refuse them and therefore if any man break his Faith with us we are to bear it patiently and to learn rather to be wise in taking heed before hand whom we trust than by our folly to fill the City we live in with Law-suits It was also wisely enacted by Charonda That no man should have his Action at Law against that man whose Faith he thought fit to take for the price of what he sold him which Plato likewise approves of L. 8. de Leg. Mor. Nic. 8. 15. This was also observed by Aristotle In some Countries saith he there is no recovering of such Debts by Law-suits for they conceive that men ought to acquiesce and to be contented with the faith of that man whom they thought worthy to be trusted Mor. l. 9. c. 1. So in another place Some Countries there are where the Laws do forbid a man to recover by Law that which he hath trusted upon the Faith of another as if he with whom we have made any Contract and on whose faith we have taken were privately only to be dealt with Those Arguments which from the Roman Laws are brought against this opinion are to be referred not unto our Embassadours but unto such as are sent from Provinces or from particular Cities XI Prophane Histories are full of the Examples of Wars undertaken for the affronts offered to Embassadors And in the Sacred Story we read of a War made by King David against the Ammonites upon that ground Neither can there be any cause more just as Cicero pleads against King Mithridates CHAP. XIX Of the Right of Burial I. From the same Law of Nations ariseth the Right of burying the Dead II. Whence this springs III. It is due even to Enemies IV. Whether to such as are notoriously wicked V. Whether to such as kill themselves VI. What other things are by the Law of Nations due I. From the Law of Nations ariseth the right of Burial FRom the same Law of Nations which is voluntary ariseth the Right of burying the bodies of the Dead Dion Chrysostome amongst those Customes which he opposeth to written Laws placeth this of Burial next to the Rights due to Embassadors And Seneca the Father among those Laws that are unwritten which yet are more firm and binding than those that are written inserts this of the Interment of the dead The Hebrew Historiographers Philo and Josephus term this the Right of Nature And Isidore Pelusiota One of the Laws of Nature as it is very usual with them to comprehend all such Customes as are common amongst all Nations and agreeable to Natural Reason under the Notion of the Law of Nature as I have elsewhere shewed And no marvel Epist ult edit 491. Lib. 12. Lib. 13. Hist 8. 19. seeing that as Aelian speaks The burial of the dead is a thing commanded even by Nature
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
they broke out into Arms. So Coriolanus in Dionysius Halicarnassensis If a man saith he without coveting anothers do but demand his own and being thereof denied shall make War that War by the consent of all Nations is most just For as King Tullus saith in the same Author Quae verbis componi nequeunt ea armis decernenda sunt Those differences which cannot by reasons be composed must be determined by blows And yet as Vologeses in Tacitus declares I had rather keep what mine Ancestors have left me by Equity than by the expence of blood by mine own Just Title than by a doubtfull War For as King Theodorick wisely observed Then only is War profitable when our Enemies will not otherwise do us Justice VIII 2. By Arbitration The second way to prevent War between those who have no Common Judge between them is to put the matter in question to Arbitration This though much scorned by such Princes as are too confident in their own strength yet is worthily to be prest and insisted on by all that love Peace and Equity To persecute him as an enemy that is willing to put his Case to an indifferent Arbiter is impious and unjust saith Thucydides So concerning thâ— Kingdom of the Argives Adrastus and Amphiraus were both content to refer themsâ—â—ves to the judgment of Eriphyla as Diodorus testifies The like did the Athenians and the Megarenses to three Lacedemonians concerning the Island Salamis Lib. 5. The same Thucydides records this to be one of the Articles agreed on in the League between the Lacedemonians and the Argives That in case any Controversie should at any time arise between their Cities the matter in difference should amicably be referred to a third City which should be indifferent to both according to the ancient custome of their fore-fathers Thus the Corcyreans declare their readiness to refer their difference with the Corinthians to any of the Peloponnesian Cities that they should agree upon Many Great Princes and States to save the effusion of blood have been contented to put their grievances to Arbitration Aristides commends Pericles that to avoid a doubtfull War he was willing to commit his Cause to indifferent Judges So also doth Isocrates in his Oration against Ctesiphon highly extol King Philip of Macedon for his readiness to refer all those Controversies which he had with the Athenians to some other City that stood indifferently affected to either party Thus do the Samnites as to the differences between themselves and the Romans offer to stand to the award of those States that were at Peace with both of them Xen. Cyro lib. 2. Cyrus makes the Indian King Judge between himself and the Assyrian So do the Carthaginians to avoid a War put the Cause of their Quarrel with Masinissa to the Judgment oâ— others Yea and the Romans themselves do refer their differences with the Samnites Livy lib. 8. to be compromised by their common Associates We for our parts are ready say the Gepidae to the Lombards in Procopius to refer our selves to any indifferent Arbiters Goth lib. 3. Queen Elizabeth offered to refer the differences between her and the Dane unto Commissioners on both sides Camden Anno 1600. or unto the Elector of Brandenburgh the King of Denmark's Father in Law and to the Duke of Mechlenburgh and the Duke of Brunswick as Arbitrators Now they that refuse this way of disceptation by Reasons Arguments or Arbitrements running rashly into War when it may be avoided decline all Justice Humanity and the common practice of the best and wisest Princes Yet that Philip King of Spain would not admit of the Pope to be Judge between him and other Competitors for the Kingdom of Portugal I do not wonder Aberic Gentilis because the Pope claimed the decision of all such Controversies as his proper Right wherefore that wise King was unwilling to add his own Example to some ancient ones whereby the Pope might hereafter prove himself to be the sole Arbiter and Disposer of Kingdoms Many other Examples may be produced but in a Case so clear these may suffice Plutarch tells us That it was the principal duty of the Colledge of Heraulds among the Romans to take care Nè sinerent prius ad bellum veniri quam spes omnis judicii obtinendi periisset That no War should be attempted but where all hopes of receiving satisfaction for injuries done them by any other means were frustrate And Strabo testifies of the Druides in Gallia Lib. 4. That anciently they were the Arbitrators between publick enemies and that by their mediation Peace was often made even when the Armies were preparing for battel Which Office did of old in Spain appertain to their Priests as the same Author records But much more doth it concern Christian Kings and States to prevent the effusion of blood by this means Lib. 11. For if both Jews and Christians have thought fit to appoint Arbitrators among themselves to determine all Controversies to the intent Vict. de Jure Belli n. 28. That Brother should not go to Law with Brother before unbelievers as St Paul hath also commanded how much more reason is there that such Arbitrators or Judges should be chosen by us to prevent mischiefs far greater than going to Law namely spoil rapine murther yea and sometimes desolation which are the unhappy concomitants of cruel War From whence Tertullian concludes That a Christian ought not to wage War seeing that it is not lawfull for him to go to Law which notwithstanding is to be understood in a qualified sense Gregor lib. 10. And indeed it is very unfit for Princes who profess themselves to be followers of Christ to rush into arms one against the other with so much bitterness seeing that there are other means found out to compromise their Quarrels and to make better use of their Arms and Valour against the Common Enemy And for this as well as for many other reasons it would be very convenient nay necessary that constant Diets and Conventions of Christian Princes should be held where by the prudence and moderation of such as are not interessed all Controversies may be composed yea and that some expedient may be found out to enforce both Parties to accept of Peace upon equal and indifferent terms whereof we may find Examples in Cassiodore * Cassiod lib. 3. 1 2 3 4. Gailius †Gail de pace publ lib. 2. cap. 18. n. 12. and others which anciently was committed to the care of the Druides in France to whom the Bishops did afterwards by a better Right succeed So we read of the French Kings that in the division of the Kingdom they have referred themselves to the judgment of their Peers IX 3. By Lot The third way to prevent War is to decide Controversies by Lots which Dion Chrysostome much commends and long before him Solomon Prov. 18.18 whereof see St Augustine in his first Book 28. Chap. of
necessity Nisi malint fame perire Vnless they had rather perish by famine For as Anaxilaus in Xenophon apoligizeth for his surrender of Byzantium being thereunto constrained for want of Bread Pugnandum est hominibus in homines non in rerum naturam Men ought to fight against men but not against nature neither do men commend a voluntary death so long as their hopes are above their fears That sentence which Diodorus Siculus past against the Thebans which lived in the time of Alexander the Great stands yet upon record namely That they were the authors of their own ruine for as much as they had with more courage than prudence provoked Alexander to their own destruction And in another place the same Author examining the ground of that War which the Thracians undertook against Alexanders Army after his death saith That in the opinion of the wisest men they had consulted well for their own glory but not so well for their own profit by thrusting themselves over-hastily into so dangerous an enterprise being no ways urged thereunto by any necessity but especially being forewarned by the destruction of the Thebans The like censure doth Plutarch pass upon Cato and Scipio Whom for refusing to submit to Caesar after his victory in Pharsalia he condemns as being the cause that so many and so gallant men did unnecessarily perish in Africa Now what I have here said concerning liberty may likewise be said concerning other things that are desiderable when they cannot be obtained without if not a more just yet at least an equal expectation of some greater mischief For as Aristides saith To preserve the ship with the loss of the goods is usual but not with the loss of the passengers VII War seldom made for punishments by Princes of equal power This also is chiefly to be observed That Wars are seldom or never made for exacting punishments only by such Princes or States as are of equal power for as the civil Magistrate so he that undertakes to punish injuries by Arms must always be presumed to be of power sufficient to enforce it Neither is it prudence only or the love we bear to our Subjects that should disswade us from a doubtful War but sometimes even justice that I mean which is essential to Government which requires as obedience from inferiours so protection and preservation from superiours And consequently as some Divines have rightly observed If a King for any small or trifing cause as for the exacting of punishments which are unnecessary In what case a Prince is bound to repair his Subjects losses engage his Subjects in a dangerous War he is bound to repair the losses they shall thereby sustain for although to his Enemy haply he doth no wrong who hath justly provoked him yet doth he thereby wrong to his Subjects by involving them in a dangerous War for such slight causes as might better have been dissembled and is therefore bound to repair their damages in which sense that of Livy holds true Justum est bellum quod necessarium est pia arma quibus nulla nisi in armis relinquitur spes That War is just that is necessary and Arms are there necessary when there is no hopes of safety but by Arms. This was Ovids wish Ovid. Fast 1. Sola gerat miles quibus arma coerceat arma May then the Souldier armed be When he repels his Enemy VIII War not to be undertaken but in a case of necessity There is then one rare cause when War either cannot or ought not to be omitted as namely when as Flora speaks Jura sunt armis saeviora Laws are more cruel than War it self that is when the oppressions of Tyrants are more greivious than the miseries of War He saith Seneca needs not to fear the miseries of War that suffers the like if not greater living in Peace So Aristides When it is manifest that our condition will be worse in sitting still then we may adventure upon the dangers of War Neither is that opinion of Tacitus much to be condemned where he saith That a miserable Peace may well be exchanged for a doubtful War that is as the same Author saith When if we conquer we enjoy our freedom or being conquered our condition can be no worse Or when as Livy speaks Peace is more grievous to those that serve than War is to those that are free But not as Cicero puts the case if it appear that being Conquered we shall be proscrib'd i. e. our estates shall be sold and our persons banished but being Conquerours we change only our oppressors but are not eased of our oppressions IX Or without great cause and great advantages Another time when War is to be preferred before Peace peace is when upon a rational debate we find that we have the best Right and which is of greatest moment power sufficient to defend it that is as Augustus in Suetonius sometimes said * Sueton. c. 24. When there is more hopes of gain than fear of loss Or as Scipio Africanus and L. Aemilius Paulus were wont to say of the Battel * Aul Gel. l. 13. c. 3. Val. Max. l. 7. c. 2. We ought not to run the hazard of a Battel but upon some unavoidable necessity or upon great and manifest advantage wherewith accords that of Plutarch * Gracchis before-recited To use Iron and Steel without very great necessity neither becomes a good Physician nor a prudent States man The like Zonaras records of Marcianus Kings when they may lawfully enjoy Peace ought not to make War Whereunto we may add that of St. Augustine Pacem habere voluntatis est Bellum autem necessitatis esse debet ut liberet nos Deus à necessitate conservet in pace Peace we should make voluntarily War out of necessity That so God may relieve us in our necessities and preserve us in Peace But then most especially may we make War when we have good cause to hope that our Enemies through fear or by the fame of our Victories will be ready to yield without any or very little danger on our part and this is as Pliny calls it the most glorious of all Victories X. The miseries of War War indeed is as Plutarch speaks * Vit. Eamilli a very savage thing and never comes unaccompanied with a torrent of mischiefs and insolencies Which saith St. Aug. * De Civit Dei l. 19. c. 7. should I undertake to describe when and where would my discourse end But they may say a wise man will sometimes make War as if when he considers himself to be a man he doth not much more grieve to find himself enforced thereunto though that War be just for unless it were just there could be no necessity to make it because it is the iniquity of the adverse part that thrusts a wise man into a just and necessary War which very iniquity as proceeding from men though no necessity of a War should thence arise is
of St Ambrose Histories will inform us And although Almighty God doth so sometimes yet ought that to be no example to us because of that full and absolute Right of Dominion that he hath over us which he hath not granted unto us to have one over another and yet even God himself who is Lord Paramount over all Mankind doth often spare a World of wicked and ungodly men for a very few that are good thereby manifesting his equity as he is a Judge as sufficiently appears by that sweet Colloquy between him and Abraham concerning Sodom by which general rules it is easily collected Gen. 18.23 c. how far our Right extends in War against our Enemies by the Law of Nature V. What we may do against them that supply our Enemies with what they want And here another Question is usually started namely what we may lawfully do to those who are not Enemies or at least will not be so reputed and yet do daily supply our Enemies with such things as they need Great contests have antiently been and now are about this matter some stifly maintaining the rigour of the War others as earnestly contending for the liberty of Trade and Traffick But first we must distinguish of the things wherewith the Enemy is supplyed for some things there are that are of no use but in War as Arms and Ammunition some things there are which are of no use at all in War Procop. Goth l. 1. as things serving for pleasure only And lastly some things there are that are useful both in Peace and War as money Victuals Apparel Ships and materials for Shipping At Athens it was prohibited to export Flax Bottles Timber Wax Pitch and the like Concerning things not useful but in War it is true what Amalasuintha told the Emperour Justinian He is to be esteemed as an Enemy that supplies the Enemy with things necessary for War as to the second sort of things there is no just cause of complaint So Seneca thought The favour of a Tyrant I may purchase in case that which I give him do neither increase his power to do mischief nor confirm that which he already hath for such things as these a man may give without encreasing the common calamity I will not saith he supply him with money whereby he may keep his Army in pay but if he require Marble Perfumes or costly Apparel these being but the fuel of his lust can hurt no man but himself Soldiers and Arms will I not furnish but if he will accept of the best Artists I have to make Scenes for Masks and Plays I shall willingly part with them Thus did Hyram gladly furnish King Solomon with Timber and all kind of curious Artificers that might encrease the delight he took in sumptuous buildings thereby to divert him from pursuing with his vast Riches his Fathers conquests in Syria So also St. Ambrose De Off. lib. 1. c. 30. to contribute to him that conspires against his own Country is no commendable liberality As to the third sort of things which are of doubtful use we must distinguish of the present state of the War For if I cannot defend my self unless I do intercept those things which are sent to mine Enemy necessity will give me a good Right to them yet upon this condition that I make restitution unless there be sufficient cause to the contrary Again if the supply that is sent in do hinder the execution of my defence of the design and he that sends it might have known that it would so do As for example If I have besieged a Town and blocked up its Ports so that I may justly expect the surrender of it or a Peace in this Case he that shall knowingly send in relief is bound to give me satisfaction for the loss I sustain thereby no less than he that takes a Prisoner out of Custody that owes me a just Debt or instructs him how to make his escape thereby to defraud me and proportionably to that loss I sustain I may seize his goods and posess them as mine own till I am satsfied and if the damage be not already given but intended only then have I a Right by the detention of those supplies to compel him that sent them to give security either by pledges hostages or the like that he will not for the future send any more supplies to the besieged But in Case the wrongs done me by mine Enemy be manifestly unjust and that he by those supplies do abet and encourage him in his unjust War then he shall not only be bound to repair my loss civilly but also criminally as he that rescues a notorious malefactor in the very presence of a Judge and for this Cause it is lawful for me to do unto him agreeable to his offence according to those rules which we have already set down for punishments And so long as we contain our sâ—lves within these bounds we may make War upon him and for this Cause do they that make War usually send out Declarations and Remonstrances to other Nations as well to insinuate unto them the equity of their Cause as also what probable hopes they have to recover their Right Now the reason why we refer this matter to the Law of Nature is because we find nothing certainly determined in Histories by the voluntary Law of Nations as to it There is a Book written in Italian Intituled Liber consulatus Maris concerning the Government of the Seas wherein are recited the Constitutions of the Emperours of Greece and Germany the Kings of France Spain Syria Cyprus the Baleares Venetians and Genoese wherein are handled two hundred seventy four Questions upon this Subject where we shall find it adjudged That if the Ship with its freight be both the Enemies then there is no doubt but both are lawful prize If the Ship belong to such as are at peace with us and the goods to our Enemies we may enforce them to put into any of our Allies or our Ports there to unlade the goods yet so that we pay the Master of the Ship for the freight of them But in Case the goods belong to our Friends and the Ship to our Enemies then is the Ship lawful prize and to be agreed for which if refused they may be compelled into any Harbour of our Friends and withal to pay us for the freight of those goods In the Year 1438. There being War between the Hollanders and the City of Lubeck with other Cities Confederate situate upon the Baltick Sea and the River Albis it was in Holland adjudged in full Senate That the Goods found in an Enemies Ship if it did appear that they belonged to others were no lawfull prize and this was there from thence established for a Law and so pleaded by the Danish King in the year 1597. who thereupon sent his Embassadors into Holland to assert his Freedom to transport his Goods into Spain notwithstanding the bloody War which the
men of Hermunduli which is all one as what in another place he expresseth in these words Hostis sit ille quique intra praesidia ejus sunt Let him be declared an enemy and whosoever betakes himself to his protection But this custom is in force even where there is no perfect war absolutely denounced but where notwithstanding a certain violent prosecution of our right is necessary which is as it were an inchoate and imperfect War It is worth our observation what Agesilaus answered to Pharnabazus being a Subject to the Persian King O Pharnabazus Plut. Ages Xenoph. Hist Graec. 4. when heretofore we were friends to the King of Persia we dealt friendly with all that appertained unto him so now being his enemies we use all his as enemies and therefore since thou art willing to depend upon his protection we may lawfully weaken him by thee The learned Damascene doth prudently distinguish between the taking of Prizes or Reprizals for the recovery of debts or reparation of damages and the making of War which he illustrates by the example of King Herod For whom Jos Antiq. 6. though it were not lawful to make war upon the Arabians yet was it lawful for him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to take prizes throughout all Arabia for the five hundred Talents due unto him if not paid by a certain day appointed for so it was expresly covenanted between them and therefore Herod did rightly deny that to be the making of War which was but a just and lawful way to recover his own right III. An example in taking of men Prisoners A branch of the execution of this right was that which the Athenians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the making men Prisoners concerning which the Attick Law was this If any man had been by forcible assault killed by a Stranger the next of kin had a right to take any three men Prisoners but no more and to detain them until the Murderer were either punished or delivered up to be punished Hence we may perceive That there is a kind of incorporeal right of Subjects that is a liberty to live where and to do what they please engaged for the debts of every Society which ought to punish such of their own Society as shall dare to injure those of another Society so that any of the Members of that Society that shall negglect or refuse to do it if taken may be held in bondage until that Society do what they ought that is until they either punish or deliver up the Offender For although the Egyptians as Diodorus testifies did maintain That it was not just to imprison a man for debt yet is there nothing in it repugnant to nature And the general practice not only of the Grecians but of most other Nations is sufficient to warrant the contrary Aristocrates who was Contemporary with Demosthenes demanded That a Decree might pass That whosoever should kill Charidemus should be taken away from what place soever and that whosoever should make resistance should be held as an enemy In which Decree Demosthenes observes these errours First that Aristocrates did not distinguish between the putting to death of Charidemus justly or unjustly seeing that possible it was that he might deserve death next that he did not require that judgment should first be demanded against him And thirdly that not they amongst whom he should be killed but they that should receive the murtherer being escaped into protection should be prosecuted as enemies Demosthenes his words are to this purpose If a murther be committed amongst any people and they refuse either to punish or to deliver up the murtherer the Law allows the apprehension of three men but Aristocrates leaves these men untoucht and not so much as mentions them but would have those persecuted as enemies who have according to the Common Right of Nations concerning suppliants received him that hath escaped by flight for so I put the case into protection unless they deliver him The fourth thing that he reproves is that Aristocrates would instantly bring it to an absolute War whereas the Law requires only the detention of three men Of these four exceptions that Demosthenes takes against Aristocrates his Decree the first the second and the fourth are not altogether without reason but for the third unless restrained to the sole event of the murther done either accidentally or in the defence of himself I cannot perceive why it should be mentioned unless it were like an Orator for arguments sake rather than truly or justly for as we said before Vid. lib. 2. cap. 21. Sect. 7. That Right which all men challenge of receiving and defending Suppliants doth concern those only whom Fortune and not their own crimes have made miserable for otherwise there is the same Law for those amongst whom the crime is committed as for those who resuse either to punish or deliver the guilty And surely either the Law it self cited by Demosthenes hath through custom been thus interpreted or against such cavils was afterwards more liquidly exprest the truth of one of these none will deny that reads that of Julius Pollux Lib. 8. c. 6. whose words are these The taking of men prisoners is then lawfull when a man having demanded Homicides who have fled for safety to others cannot receive them For the right of apprehending three men lies against those who having received malefactors into protection refuse either to deliver them or to punish them according to Law The like we find in Harpocration The Right of taking prisoners is a Right to snatch away some men from some other City For it was an ancient custom against such Cities as received Malefactors and refused either to punish them or to deliver them to be punished to make use of this Right of Pignoration The like may be done by any City whose Citizen hath been manifestly and injuriously taken away and detained from them Thus we read that at Carthage there were some that opposed the taking of Ariston the Tyrian prisoner upon this ground Liv. l. 34. That the like would be done against the Carthaginians both at Tyre and at other Mart Towns where the Carthaginians used to traffick IV. Reprizals lawful Another kind of forcible execution of this Right is the taking of Goods between the People of divers Nations which our Modern Lawyers call Reprizals or a violent seizing and detention of each others Goods which the English and the Saxons call Withernam and the French even where it is wont to be obtained from the King Letters of Marque which also are frequently granted and are of force as Lawyers say where Right is denied V. Our right being first denyed and when that is And this may be presumed not only when they cannot in any reasonable time obtain judgment against a delinquent or a debtor But when in a Case that will hardly admit of any doubt sentence shall pass plainly against Right for Cases that are ambiguous the definitive
right And this other Form Concerning which matters differences and causes Remonstrance hath been given by the Chief Herald at Arms of the People of Rome to the Chief Herald at Arms of the Ancient Latines and of the People of the Ancient Latines but yet neither have they paid given or done any of those things which they should have paid given or done wherefore I do judge agree and ordain That satisfaction be sought by an open and a just War Whereunto we may add a third Form which follows Because the people of the Ancient Latines have injured the people of Rome and failed in what they ought to have done and because the people of Rome have decreed to make war against the Ancient Latines therefore I and the people of Rome do denounce and make war against the Ancient Latines Livy lib. 31.36 But yet that the denouncing of War is not in this case as I have said precisely necessary is plain by this That it is sufficient if it be proclaimed but at the next Garrison For thus it was adjudged by the Heralds as well in the case of Philip of Macedon as afterwards in the case of Antiochus Since he is first to denounce the War that seeks satisfaction by the War Nay the War that the Romans made against Pyrrhus was denounced but to one of his Souldiers and that in the Flaminian Cirque only Besides this also gives an occasion to another needless Observation That War is sometimes solemnly denounced on both sides as that Peloponesian War which was made between the Corcyrians and the Corinthians whereas had it been proclaimed but on one side only it had been sufficient VIII 3. In denouncing War what is required by the Civil and what by the law of Nations That Heralds were usually sent to denounce War among the Graecians clad with party-coloured Coats and armed with a bloody Javelin by the Aequicoli first and afterwards in imitation of them by the Romans That there should be a solemn renunciation of all former friendship and alliance if any such there were after thirty dayes demand of reparation for damages received And that the King of the Heralds should again thrust his Spear into the enemies ground as Servius upon the ninth of Virgils Aeneads records and the like Caducaeus whence derived see Plinys Nat. Hist l. 29. c. 3. and Servius upon the 4th and 8th of Virg. Aeneads are not dictates of the Law of Nations but are Ceremonies arising from the Customs and Institutes of some particular Nation many of which Arnobius confesseth were antiquated in his time and some of them grown out of use even in Varro's The third Punick War was as soon made as denounced and it was the Opinion of Mecoenas in Dion that some of those Ceremonies were peculiar to popular States only IX War denounced against a Prince is denounced against all that adhere unto him War being denounced against him that hath the Supreme Power in any Nation is presumed to be denounced also against not only all his Subjects and against all that shall afterwards adhere unto him as being his Associates And this is the meaning of our Modern Lawyers when they say Diffidato Principe diffidati sunt omnes adhaerentes War Proclaimed against a Prince is proclaimed also against all that shall side with him For Diffidare with them is to proclaim War which is to be understood of that very War which is made upon him against whom it is denounced As when the Romans denounced War against Antiochus they thought it needless to denounce it against the Aetolians also seperately Livy lib. 36. who had publickly espoused Antiochus his quarrel for say the Heralds The Aetolians have spared us that labour by denouncing War against themselves X. But not by themselves considered But that War being ended If any other either Prince or People are to be invaded for Succours sent unto our Enemies during that War we ought to denounce that War anew if we expect the effects proper unto a Just War by the Law of Nations For such a Prince or State are not then to be looked at as Accessaries but as Principals Neither is it the prosecution of the old War but the beginning of a new Whereunto as the Law of Nations requires a solemn indiction so by the Civil Law of the Romans was it not to be undertaken untill it had the Warrant of a new Decree from the People Wherefore the War that Manlitis made against the Gallo Graecians and that which Caesar made against Ariovistus were not justifiable by the Law of Nations And whereas when the consent of the People of Rome was asked to make War against King Antiochus the question was put in this form Livy lib. 36. cap. 42. Is it your Will and Pleasure that War be made against King Antiochus and against all that shall side with him Which was also the form used in the Decree against King Perseus It ought to be understood with this limitation namely so long as that War shall continue with those two Kings and with those who are truly and really engaged in it with them XI 4. Why denunciation is necessary to some effects of War in a Solemn War Now the reason why a Solemn Denunciation is so necessarily required unto such a War as by the Law of Nations is Just is not as some think to prevent deceit and treachery for this is better referred to Magnanimity than to Justice Thus have we read of some Nations so confident of their own strength that they have appointed the time and place long before when and where they would give their Enemies battle As Plutarch tells us that the Romans did to King Porsenna †Alb. Gent. lib. 1. cap. 2. Thus Thomas Earl of Surrey sent an Herald to James the fourth King of Scotland to let him know that on the Friday following he would give him Battle if he would stay so long in England and Thomas his Son then Lord Admiral sent the King word that he might find him in the Van of his Army as Herbert Records it in his History of Henry the Eighth The Turks two dayes before Battle make many great fires Chalcoc lib. 7. Lib. 3. de Ira. cap. 2. pag. 43. But the true reason is to remonstrate unto all Nations That the War is made not rashly or upon any private ends but with the Consent and Approbation of both Nations or at least of those who have the Supreme Power on both sides For from hence ariseth those effects proper to a Just War which in a War made with Pyrats and Robbers or in a War made by a Prince against his own Subjects will not be allowed And therefore Seneca did well distinguish between a War denounced against Foreigners and that made against Subjects or Citizens XII Which are not in other Wars Now where some note and by examples teach that even in such Wars as these whatsoever is taken away immediately becomes his that
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
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
nothing that was any where that is among such Nations as were civilized reputed sacred should be by them profaned or violated Diodorus Siculus complains against Agathocles his Souldiers That they abstained not from that foul sin of ravishment The like doth Appian in his Mithridatick War concerning the Captives taken in Chius That both Women and Children were barbarously ravished by those that led them away prisoners Aelian speaking of the insolencies of the Sicyonians being Conquerours in ravishing the Pellenaean Virgins and Matrons crys out thus These by the Gods of Greece are such acts of cruelty and inhumanity as were never to my remembrance allowed of by the very Barbarians And surely it is but reasonable that this should be generally observed among the Christians not only as a part of our Military Discipline but as a part of the Law of Nations namely That he that shall forcibly abuse a Woman though in the War shall every where be punishable Belisarius always observed this Rule So did Totilas when he had taken Cumae Goth. lib. 3. and at Rome also as Procopius leaves it upon Record Neither did the Hebrew Law suffer this wickedness to go unpunished as may be collected from that part of it which so provides for a Virgin taken Captive That he that takes her might marry her and if afterwards he liked her not he might dismiss her but not sell her Thou shalt not take money for her because thou hast humbled her saith the Law Bacchai Deut. 21.12 Upon which words one of the Hebrew Doctors thus glosseth God would have the Camp of Israel to be holy and not like the Camp of the Gentiles polluted with Whoredom Contra App. and such like abominations Josephus likewise highly extolls the Jewish Law for its care of prisoners taken in the War to preserve them from shame and reproach especially of women Arrianus highly commends that fact of Alexander who being taken with Roxana's beauty refused to abuse her as his Captive but did her the honour to marry her So doth Plutarch also He disdained to force her as a Conquerour but wedded her as a Philosopher The same Plutarch relates it of one Torquatus That he was banished by the Romans into the Isle of Corsica for forcing a Virgin whom he had taken Captive But Cosroes King of Persia was more severe for he caused one that had ravished a young Maid to be Crucified as Procopius informs us in the second of his Persian Wars CHAP. V. Of Spoil and Rapine committed in War I. That the Goods of an Enemy may be spoiled or taken away II. Even those that are sacred which how to be understood III. Yea and those that are Religious where some caution is added IV. How far forth fraud may be used in this case I. That the Enemies Goods may be wasted and taken away CIcero in the third of his Offices gives this Rule Non est contra naturam spoliare eum quem honestum est necare It is no whit repugnant to the Law of Nature to spoil and plunder him whom it is lawfull to kill It is not then to be wondered at That the Law of Nations permits the spoil and devastation of an Enemies Land and Goods seeing that it permits him to be killed Polybius tells us * Lib. 5. That by the Right of War It is lawfull either to take away or to destroy the Forts Ports Cities Subjects Ships Corn Cattle and such like things of an Enemy And in Livy we read That there are certain Rights in War which as we may safely do unto an Enemy so we must with patience suffer from them such are the burning of our Corn the pulling down of our Houses the taking away of our Men and Beasts He that is vers't in Histories will find almost every page filled with these dreadfull effects of War the demolishing of Cities the razing and throwing down their Walls the spoiling and laying wast of the Enemies Countrey with Fire and Sword yea and we may observe That all these are lawfull to be done though the Enemy do voluntarily surrender themselves The Townsmen saith Tacitus set open their Gates of their own accord and submitted themselves and all they had to the Romans whereby they saved themselves But the Romans burnt the City Artaxata and laid it level with the ground because they could neither keep it with safety nor leave it with honour II. Though Consecrated Neither are things sacred that is consecrated to any one or more Gods exempted from these Out-rages of War meerly by the Law of Nations setting aside the consideration of other Duties for Cum loca capta sunt ab hostibus omnia desinunt esse sacra As soon as any place is taken from the Enemy every thing in it ceaseth to be sacred saith Pomponius And so saith Cicero Sacra Syracusarum victoria profana fecerat The victory made all the sacred things in Syracuse profane Tertullian in his Apologeticks confesseth That War and Victory cannot consist without the subversion of Cities which also cannot happen without some injury done to their tutelar Gods For Temples undergo the same fate that their Cities do and their Priests have an equal share in publick Calamities as other Citizens neither do their consecrated vessels escape better than their profane Tot Sacrilegia Romanorum quot Trophaea tot de diis quot de gentibus triumphi Look how many Victories the Romans had so many Sacriledges they committed and as often as they conquered their Enemies they spoiled and rifled their Gods The cause whereof is this because those things which are said to be sacred are not in truth exempted from humane uses but are made publick as Marsilius Patavinus observes in his Defence of Peace But they are called Sacred Chap. 5. §. 2. from the end whereunto they are destin'd which appears by this That when any People give themselves up to another People or to any King they deliver up that also which is called Sacred as is manifest by the usual form in Livy We the People of Campania do deliver up into your Power and Possession O Fathers Conscript our City Capua our Fields the Temples of our Gods together with all that we have whether Humane or Divine the like we read in Plautus his Amphitryo And therefore as Vlpian concludes There is a publick Right even in things that are sacred And Pansanias tells us That it was a Custom common as well with the Grecians as Barbarians that things Sacred should be disposed of at the Will and Pleasure of the Conquerour So when Troy was taken the Image of Jupiter Hercaeus was given to Sthenelus and many other Examples he there brings And Thucydides confirms this saying That it was a Law among the Graecians Lib. 4. That look whose the Empire was of any City or Countrey whether great or small theirs also were the Temples Wherewith accords that of Tacitus where he saith Annal. l. 12. That all the
there is the same reason for Goods as there is for Persons whereby we way easily conclude That in some places things taken in War are presently said to be his or theirs that take them that is upon this condition That they continue in their possession for such a time Whence it seems to follow That at Sea Ships and other Goods are then said to be taken when they are carried into our Enemies Harbours or to such a place where their whole Navy rides for then their remains no hopes of recovery But by a later Law of Nations especially of these of Europe it is thus judged namely If the things taken continue in the possession of the Enemy twenty four hours then are they accounted for lost IV. When Lands But it is not so with Lands For they are not said to be taken as soon as the enemy sets down upon them For though it be true that that part of the Land which an enemy with a strong Army encamps upon is by them for the present possest as Celsus observes yet is it not every possession that is sufficient to alienate the Title of Land but such a one as is firm and lasting The Romans were so far from thinking that part of their Land lost whereon Hannibal encamped that at that very time they sold it for as much as it would have given before But that Land only is said to be lost that is so immured or secured with Walls Forts Rampires and such like Muniments that unless the enemy that holds them can be driven away there can be no possible access unto it by the former Owners And this derivation of the word Territory which Siculus Flaccus gives namely A terrendis hostibus From deterring the enemy from approaching unto it seems to be as probable as either that assigned by Varro à terendo from wearing or that of Frontinus From the soil or earth or that of Pomponius the Lawyer From the power that the Magistrate of the place hath to affright all persons within those bounds by removing or driving them out of it Thus Xenophon in his Book concerning Contribution saith That the possession of Lands is held in the time of war by Muniments which he there calls Walls and Frontier Garrisons V. Things not the Enemies cannot be acquired by War Whence this also may be gathered That before the War can transfer a Right unto us in any thing so taken it is requisite by the Law of Nations that that Right should first be in our enemies For things deposited or laid up within our Enemies Towns or Garrisons whose right Owners are neither Subjects to our Enemies nor have any hostile mind towards us cannot by War be made lawful prize though we do conquer the place as is sufficiently proved among many others by that of Aeschines where he shews That Amphipolis being a City belonging to the Athenians could not be lawful prize to King Philip by that War which he made with the Amphipolitans First because no reason could be given why the Athenians should lose their right being no Enemies at that time to King Philip and then Because this Right of changing properties by mere force would prove a matter of so dangerous a consequence that it ought not to be largely interpreted VI. Concerning Goods found in an Enemies Ship Wherefore that which is commonly said That Goods found in the Ships of our Enemies are adjudged to be the Enemies Goods and consequently are lawful prize is not so to be understood as though it were a certain Law made by the Right of Nations but because it gives occasion to a very great presumption that they are so which notwithstanding by pregnant and evident proofs to the contrary may be dash'd And so it was long since adjudged in Holland in a full Senate during the War with the Hans-towns in the Year 1338. and from thence hath since past into a Law Neither are the Ships of our Confederates forfeited though the Goods in them be an Enemies unless it be so agreed with the consent of the Masters of the Ship And so are the Laws of France as I suppose to be understood which adjudge the Goods lawful prize if the Ship be so and the Ship lawful prize if the Goods be so But otherwise the Goods only are prize but not the Ship So in the War between the Venetians and the Genoese the Ships of the Grecians being searched those Enemies that lay hid in them were taken and made Prisoners Greg. l. 9. VII Things taken from our enemies are ours by the Law of Nations tho' they took them from others This also is most certain That if we look no farther than the Law of Nations whatsoever is taken by War from our Enemies cannot justly be claimed by those from whom those Enemies won it by the Right of War because The Law of Nations first made our Enemies Lords of it as to an external Right and afterwards the same Law made it ours Thus Jephtha pleads his Title against the Ammonites because the Land in question as also another part of the Land of the Moabites were by the right of Conquest first won from the Ammonites and so invested in the Amorites and from the Amorites 1 Sam. 30.20 by the same Right of War was transferred unto the Israelites Judg. 11.23 24 27. Thus did David claim and divide as his own the Lands that he took from the Amalekites notwithstanding that the Amalekites had before taken it from the Philistines Titus Largius as Dionysius Halicarnassensis records the Story did thus adjudge this Case in the Roman Senate Lib. 6. when the Volscians laid claim to some of those Lands which the Romans had then lately won by the Right of War because anciently they had been Lords thereof saying We Romans do account the possession of those Lands which we have won by the Sword to be most just and honest neither can we be so easily perswaded to erase the Monuments of our Ancestors valour by restoring that back unto those who when they had them were not able to keep them Nay those Lands that we thus gain we conceive our selves bound not only to communicate to those Citizens that are now living but to leave to those who shall hereafter succeed us So far are we from adjudging that against our selves by a voluntary surrender of what we have gained by the Sword which is usually adjudged against Enemies Vit. Rom. This Plutarch relates to be the ground of the War between the Romans and the Vejans who demanded of the Romans the City Fidonae as anciently belonging unto them which demand was not thought by the Romans to be unjust only but ridiculous to wit that they who would not aid and assist the Fidenates whilst they were contending against the Romans and in great danger but suffered the Citizens thereof to be destroyed should now lay claim to their Houses and Lands when the were possest by the Romans by the Right of
Treasury but the Money he had raised by the selling of the Captives But having Conquered the Hetrusci and made sale of the Captives out of the Money so raised he restored to some Roman Matrons the Gold they had contributed to maintain the War and laid up three Cups of Gold in the Capitol Fabricus having conquered the Lacanes the Brutii and the Samnites Liv. l. 5. L. 6. did very much enrich the Souldiery restored to every Citizen his Taxes and brought into the Treasury Four hundred Talents besides So did Fabius when he had taken Tarentum Liv. lib. 37. brought the Money raised by the sale of Prisoners into the Treasury but the rest of the spoil he disperst among his Souldiers Thus did Q. Fulvius and Appius Claudius when they had taken Hanno's Camp they sold the spoil and divided it rewarding every man that had done any signal service in that fight Scipio having taken Carthage Lib. 25. gave the spoil of the City to his Souldiers reserving only the Gold and Silver to gratifie his friends Acilius upon the taking of Lamia divided among the Souldiers one part of the spoil and sold the other Cn. Manlius having subdued the Gallogrecians Liv. l. 37. and according to the then Romish superstition burnt their Arms sold the rest of the Prey Id. l. 38. part whereof as his own he brought into the Treasury the rest he divided among his Souldiers with singular care as was most fit XXI Oft-times it was embezelled Whence we may collect That no less among the Romans than among other Nations the spoil did belong to the people of Rome though the disposition thereof was sometimes granted to their Generals yet so that they were to give account thereof to the people which we may learn amongst others by the example of L. Scipio Lib. 5. c. 3. who as Valerius Maximus relates it having conquered King Antiochus and added Asia to the Roman Empire Livy lib. 45. was afterwards as Livy reports condemned for enriching himself with the spoil that belonged to the Commonwealth for he had received Four hundred and eighty Talents of Silver from the Enemy more than he had brought into the Treasury Cato in his Oration concerning the spoil taken from the Enemy bitterly and resolutely complains of the licence and impunity granted unto their Generals in his time in imbezelling the spoils of the Enemy and so robbing the publick Treasury A fragment of which Oration is recorded by Aulus Gellius in these words L. 11. c. 18. Fures privatorum furtorum in nervo atque compedibus aetatem agunt Fures publici in auro atque purpura Private Thieves we usually load with bolts and fetters But they that rob the Commonwealth are clad in Gold and Purple and are indeed the only Gallants of our age So elsewhere the same Cato wonders That any man should dare to hang up in his own house those Ensignes that were taken in Wars as if they were a part of hiâ— own houshold-stuff Neither are Generals only guilty of this crime but even private Souldiers in case what they so take from the enemy they do not forthwith produce in publick For they were all of them bound by Oath saith Polybius that they should not purloin or convey away any thing of the prey but that they should faithfully discharge their trust in regard of their Oaths Lib. 16. c. 4. The Form whereof we find recorded by Aulus Gellius whereby they were obliged not to take away any thing either within the Army or within ten miles of it that was more worth than a small piece of Silver or if they did then they were to bring it to the Consul or within three days to make open profession of what they had done which gives some light to that of Modestinus Is qui praedam ab hostibus surripuit Peculatus tenetur He that stealeth away any of the spoil and keeps it to himself is guilty of robbing the publick Treasury And this one thing is sufficient to admonish those that expound the Law not to believe that the spoils taken from the enemy are peculiar unto those that take them but unto the State that bears the charges of the War For there can be no robbing of the Commonwealth but in those things that are either publick sacred or religious The result of all this is to shew That setting aside the Civil Law and primarily whatsoever is in the publick acts of a Just War taken from the enemy belongs to the Prince or people who are at the charge of making the War XXII That somewhat may be changed of this common right by any Law or Act of the Will We add setting aside the Civil Law and primarily or directly The former because the Law whether made by the people as among the Romans or by the King as among the Hebrews and other places may dispose of these things that are not actually possest to the benefit of the Commonwealth And here under the word Law we understand also Custom if rightly introduced The latter I add that we may know that it is in the power of the people to grant the spoils of the enemy to others as well as they may dispose of other things And that not only after they are got but before so that immediately upon the taking of them Actions are commenced brevi manu as the Lawyers speak that is compendiously declining the dilatory Forms of Suits Which Grant may be made not only nominally but generally also as to Widows to the aged and impotent and to poor Orphans as part of the spoil was thus given in the times of the Maccabites 2 Mac. 8.28 30. or unto uncertain persons in imitation of those Sportulae which the Roman Consuls and other Princes cast among the people whereof every man had liberty to catch what he would Neither is the translation of this Right either by Law or Grant unto others always a mere donative For sometimes it is due by some former Covenant or Agreement sometimes in discharge of some Debt or as a recompence for some loss received or some extraordinary charge men have been at in the War either by purse or pains As when a man serves in the War without pay or for less than his pains deserves For in these cases it is usual we see to grant either all or some part of the spoil unto others XXIII Some of the spoil may be due to our Associates It is also observed by Civilians That Custom hath so far prevailed almost every where that whatsoever either our Associates or Subjects that serve without pay and at their own cost and peril shall take in the Wars is their own As to our Associates the reason is manifest because by the Law of Nature they that are associated in a War are bound to repair each others losses which shall be occasioned by reason of the War which is common and publick Besides there are very few that will
expose themselves to labour and danger for nothing De benefic 4. c. 15. for this reason saith Seneca we usually reward Physicians though they cure us not Quod à rebus suis avocati nobis vacant Because we call them from their own affairs to serve ours And the same reason likewise serves for Lawyers as Quintilian notes Because they tear out their time and employ their whole study to defend other mens Estates thereby neglecting all other means to improve their own The very same is given by Tacitus Ann. l. 9. Omittit res familiares ut quis se alienis negotiis intendat That he casts off all care of his own domestick affairs that he may the better intend the good of others It is therefore very credible unless there shall appear some other cause as namely mere kindness or some former Contract that it was the bare hope of gain by the spoil of the enemy which they expected as a compensation for their loss of time and of their labour Vid. Plut. Marcell that made them to expose themselves to so great dangers XXIV And often to Subjects But as to Subjects the reason is not so evident because Subjects and Citizens owe their help and assistance to the Country or City whereof they are But yet seeing that all Citizens either cannot or will not expose themselves to those hazards and hardships that attend War therefore it is but reasonable that retribution be made by the whole Body of the people unto such as shall sustain the toil or the charges of it but much more the damage that shall be thereby occasioned in full recompence whereof the hopes of the whole prey or of an uncertain part thereof is by the people easily and that not without reason granted unto them So thought the Poet Propert. Praeda sit haec illis quorum meruere labores Theirs be the prey whose pains deserv'd it have As to our Associates an example we have in the League that was made between the Romans and the Latines wherein it was agreed Liv. l. 4. c. 24. That in all the Wars wherein the Romans should engage them the spoil taken from the Enemy should be equally divided between them So in the Wars wherein the Aetolians engaged the Romans it was agreed Dionys l. 6. Polyb. l. 6. That the Cities and Territories should be the Aetolians but the Prisoners and all Moveables should be granted to the Romans To the ancient Latines the Romans gave a third part of the spoil as Pliny testifies And proportionable to the succours sent the free Towns of the Switzers received their share of the spoil as Simler relates Paruta l. 8. In a War against the Turks the Pope the Emperor and the Venetians divided the spoil according to their respective charges that they had been at in making the War And Pomponius gratified Deiotarus King of Galatia with the lesser Armenia because he had been his Companion in the War against Mithridates St Ambrose upon the Story of Abraham Lib. 1. de Abra demonstrates the equity of this custom Abraham saith he perhaps thought it but just that they that came up to his assistance in that War should likewise partake with him of the spoils as being the reward of their labour But as to Subjects an example we have in the Nations of the Jews Numb 31.27 where God commands Moses to divide the spoil of the Midianites into two parts that is between them that undertook the War and went out to Battel and between all the Congregation And in ver 47. he subdivides that part which belonged to the Congregation and gave the fiftieth part thereof to the Levites that had the charge of the Tabernacle Thus David divided the spoil taken from the Amalekites equally between them that went down to Battel and them that guarded the Stuff Sometimes the Jews would divide the spoil 1 Sam. 30.24 and grant half to the Souldiers and as to the other part they admitted the maimed the Widows and the Orphans to have share with them So we read of Alexander's Souldiers 2 Mac. 28.30 that they always challenged the spoil taken from private men unto themselves only the most precious things they reserved and presented to the King Wherefore we find them accused for robbing the publick Treasury who had conspired to assume all the prey taken at Arbela to themselves so as to bring nothing to the Treasury But yet those publick things that belonged to the enemy or to the King against whom they fought were exempted from this Licence Thus it was with the Macedonians when they brake into Darius's Camp they carried away an infinite Mass of Treasure leaving no place unrifled but the Kings Pavilion only it being a custom received amongst them as Curtius notes as well as amongst most Nations to receive the Conquerour in the Pavilion of the conquered The custom of the Hebrews was not much unlike this of the Macedonians 2 Sam. 12.30 For they always set the Crown of the vanquished King upon the head of the Conqueror assigning all the Furniture of the Kings Palace or Pavilion unto him as his share of the spoil And amongst the Acts of Charles the Great we find that having conquered the Hungarians Whatsoever was taken from private men he gave to the Souldiers but what was the vanquisht Kings was brought into the Emperour's Treasury The Grecians distinguished them by their several names calling the publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the private 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as also they did those taken in the Battel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but those taken after Battel being publick 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which distinction was afterwards approved of by other Nations But it is plain by what hath been already said That the Romans during their ancient Commonwealth did not allow to their Souldiers so much yet they began to be more indulgent to them in their Civil Wars Thus you may read Aequilanum given to the Souldiers for pillage by Sulla And Caesar after the Battle of Pharsalia gave Pompey's Camp to be pillaged by the Souldiers with this Complement superest pro sanguine merces Quam monstrare meum est nec enim donare vocabo Quod sibi quisque dabit For loss of bloud a recompence I 'll make Not what I 'll give but what each man shall take And in another Civil War the Flavians being led against Cremona App. Civil 1. made all the haste they could the Night approaching to storm the City lest the pillage thereof should fall unto their Commanders and Legates having it seems been sufficiently instructed by Tacitus Tacit. Hist 3. Expugnatae Vrbis praedam ad militem deditae ad Ducem pertinere That the Plunder of a Town if stormed belonged to the Souldiers but if surrendred unto the General Ne manente periculo omissis hostibus praeda manus impediret quòd plurimas saepe Victorias corrupit Sub Corona But
afterwards as the Discipline grew more remiss so this Licence of pillage was more willingly granted to the Souldiers upon this ground lest whilst the Victory was yet doubtful the greediness of the Souldiers should make them neglect their Enemies and over-hastily fall upon the prey which hath often proved fatal to the Conquerour When the Castle Volandum in Armenia was taken by Corbulo Tacitus tells us That the common people were sold but the rest of the spoil was the Conquerours The same Tacitus brings in Suetonius encouraging his Souldiers to pursue their Enemies and not at all to mind the pillage assuring them that the Victory being ascertained the spoil should be their own Goth. 2. So in Procopius we read that all the pillage taken at Picenum was brought to Belisarius that he might divide to every man according to his merits the cause whereof is added For saith he it is most unreasonable that whilst some with much toil and valour are killing the Drones others without any labour or peril should devour the honey Vand. l. 2. And in another place he tells us That the Souldiers were much incensed against Salomon when he warred against the Levatae because he detained from them the prey who excused himself in that he did it for no other reason than that at the end of the War he might therewith reward every man according to his deserts There are some things of so small value that they are not worth the publication or exposing to sale these are usually granted to those that take them such in the old Roman Commonwealth were a Spear a Javelin Fodder Fuel a Bottle a Pair of Bellows a Torch Lib. 16. c. 14. and any thing else of less value than a small Piece of Silver For all these are expresly excepted in the Military Oath given to the Souldiers as we may read in Gellius Not much unlike is that which is allowed to Sea-men and Mariners although they are under pay Gall. Constitut lib. 20. tit 13. The French call this the spoil or pillage wherein are comprehended Apparel Bedding Fuel Gold also and Silver under ten Scutes sometimes the fifth part sometimes the third Leges Hisp sometimes half the prize belongs to the King as it doth in Spain and the seventh and sometimes the tenth to the General of the Army the rest belongs to them that take it except Men of War with all their Tackle which are always the Kings and so are all Engines of War amongst the Swedes Jo. Magn. in his Sweed Hist Consulatus Maris Cap. 285. In some places again regard is also had to the labour peril and charge that any man hath been at and allowance is made in the partition of the spoil accordingly In Italy a third part of the Ship taken in Fight is the Masters of the Ship that took it and as much belongs to them whose Goods the conquering Ship is laden withal and another third is theirs that fought and took her And sometimes it falls out that they who at their own charge and peril maintain the fight do not carry away the prize but some part thereof is due to the State or to him at least that derives it from the State As in Spain they that set out the Ship upon their own charge Leg. Hisp yield a part of the spoil taken to the King and a part to the Admiral of the Seas In France the Admiral claims the tenth part so also in Holland But there the State first takes the fifth part to themselves Thus it is at Sea but at Land in the sacking of Towns and in Battels every man usurps that which he takes to himself And in excursions into the Enemies Country by Parties whatsoever is so taken is divided among them that take it according to every mans merit and dignity XXV To what use these serve What hitherto hath been said serves to this end That if in any Nation not embroiled with War any Suit or Controversie arise concerning any thing taken in War the things shall be adjudged unto him to whom the Laws and Customs of that people from whose parts they were taken shall determine But if nothing can be thereby proved then by the common right of Nations the thing so taken shall be adjudged to the State or people themselves if at least it were taken in the act of War For by what we have already said it is plain Lib. 5. c. 8. that what Quintilian sometimes said in the behalf of the Thebans doth not always prove true As to what may be brought under the tryal of the Law the right of War avails nothing neither is it a good Plea to say It was gained by Arms unless by Arms we can retain it XXVI Whether things taken without the Territories of either Party be lawful prize But whatsoever is not the enemies though it be found with the enemy shall not be adjudged to them that take it For this as I have already said is neither agreeable to the Law of Nature nor was introduced by the Law of Nations So the Romans in Livy answer Prusias If the Lands in question were not King Antiochus 's neither could it by Conquest belong to the Romans But if the Enemy had any right or interest in those things which were annexed to the possession as if it were taken by him as a Pledge for some Debt or if it were retained by him for the performance of some Covenants for service or the like that was for the advantage of the Enemy See above Ch. 4. Sect. 7. and this Ch. Sect 5. Livy lib. 55. In all or any of these Cases I see no reason but that whatsoever was the Enemies is transferred unto the Conquerour This also is sometimes controverted Whether persons or Goods taken without the Territories of either of those Princes or people that are at War against each other be theirs that take them Whereunto it is answered That if we respect the Law of Nations only no place can give an Enemy protection for as we have already said Every where an enemy being found may be killed But yet he that hath the supreme power in that place may at his pleasure prohibit the prosecution of an Enemy within his own Dominions and in case of disobedience may require satisfaction as for an injury done against himself The like may be said concerning Deer taken in another mans Ground That they are his that takes them but it is lawful for him whose Ground it is to prohibit his access unto them XXVII This Right how proper to a solemn War But this external Right of gaining things taken in War is by the Law of Nations so peculiar to a Solemn War that in other Wars it can take no place For in other Wars amongst Foreigners the Right to a thing is not gained by force of the War but only in compensation of some Debt which cannot otherwise be recovered But in Civil Wars whether they be
Postliminy XI How Servants are received by Postliminy how Fugitives and how they that are redeemed Amongst which in the first place are Bondmen and Bondwomen yea even such oft-times as have been alienated and such as have been set at liberty by the enemy because as it is very well noted by Tryphoninus it is not just that his former Master being our Citizen should be damnified by the Right of an Enemy By an Edict of King Theuderick it was ordained That Servants and Tenants being taken by the enemy and returning home should be restored to their own Lords if they were not before bought by some other from the enemy by way of traffick But by the wise Gothick Law a Servant recovered by War was restored to his Master he paying unto him that took him the third part of his just price But in case the Servant were sold by the Enemy then was the Lord to pay the full price for which he was sold with some advantage Therefore that a Servant may be capable of reception it is necessary that his old Master should be either actually possest of him or at least that the Servant be where he may easily have him if he so pleaseth And therefore whereas in other things it may suffice That they are brought within the Bounds of our own Territories this is not sufficient in a Servant to receive the right of Postliminy unless it be also made known to his Master that he is there For as Paulus saith If he lye sculking in Rome and will not be seen nor known to be there he is not yet received by this Law And as herein Servants differ from things inanimate so do they from the case of a Freeman in this That it is not required in them to make them capable of being received that they should return with an intent to follow the fortune of the City whereunto they return for this is required from him only that is to receive his own freedom and not of him that is to be received by another Sabinus For every man hath a free power to make himself a Member of what City he pleaseth but not of the Right of Dominion Neither do the Roman Laws exempt Fugitive Fugitives Servants from this right of reception for even in these may their old Masters claim their Right as Paulus notes lest if we should admit the contrary it should prove injurious not to the Servant who nevertheless is still to remain a Servant but to the Master who would want his service But generally concerning such Captives as are redeemed by the valour of Souldiers that may be truly said by their Generals which some would so wrest as if it were meant of all things Receptos eos non captos judicare debemus Militem nostrum defensorem eorum decet esse non dominum We are to esteem of these not as taken but received whom we ought rather to defend and protect than insult over Those Captives that are ransomed from the enemy are by the Roman Laws theirs that redeem them but the Summ paid being tendered they are understood to be by Postliminy received But by the more recent Laws some things have been changed and that Servants being taken may be encouraged to return they now propose present liberty to such as have been maimed in their service and to the rest after five years as appears by their Military Laws collected by Rufus XII Whether a people being subjected by another may be received by Postliminy But unto us that are Dutch-men this Question is more pertinent Whether those people that were once subjected to the power of another Prince may return back to their former state and condition which will admit of a Dispute in case not he whose the Empire had been but some other of their Associates had recovered them from the enemy whereunto the same Answer I conceive may serve that was before given concerning Servants unless by some Social League it be otherwise agreed Xâ—â—I Whether lands may be said to be received Among things that are received by this Right of Postliminy the first that offer themselves are Lands whereof Pomponius speaks thus Expulsis Hostibus ex Agris quos ceperint Dominia eorum ad priores Dominos redeunt The Enemy being driven out the Lands return to their former Owners Now the Enemy is then said to be driven out when it appears plainly that they are not able to recover it again Thus the Island Aegina which the Lacedemonians took from the Athenians they restored to their Associates who were the Ancient Lords thereof Compare this with what was said above ch 6. §. 7. And the Goths and Vandals being expelled Justinian and the Emperours succeeding restored the Lands unto the Heirs of those who anciently possest it notwithstanding those prescriptions which in other cases the Roman Laws did admit of against them The very same was confirmed by a Law made by Honorius who though Spain had been in the possession of the Vandals for Three hundred Years Vand. l. 1. yet would not permit that any prescription should be pleaded in Barr against the Ancient occupants Concil His pal 2. as Procopius testifies which Law we find also recited in the Council of Sivil where this is added as the reason Non enim erit objicienda praescriptio temporis ubi necessitas interest hostilitatis For no prescription of time is to be pleaded which is enforced by open hostility Now look what Right they have to the Lands the same also they have to every thing that is affixt to the soil for even those places which had been formerly held as Sacred or Religious being taken by Enemies if they do escape that calamity they also as if returned by a kind of Postliminy shall be restored to their former condition as Pomponius notes Wherewith agrees that of Cicero concerning Diana in Segesta P. Africani virtute Religonem simul cum loco recuperavit By the valour of Scipio Africanus Diana recovered both her Temple and worship wherefore the fruits and profits of the ground thus received are likewise to be restored according to what Pomponius writes concerning Lands first drowned and afterwards recovered So in Spain it is provided by a Law that as well the honour and dignity as all the hereditary jurisdictions thereunto belonging may return by Postliminy the greater at any time the lesser if claim be laid unto them within four Years after their reception unless it be some strong fort which if lost and recovered again is the Kings XIV What difference was anciently made between things moveable Concerning moveables the general rule is quite contrary for they do not return by Postliminy but are utterly lost as being lawful prize and may therefore be bought and sold wheresoever they are found they are adjudged his that bought them neither hath the first owner any Right at all to them though he find them either abroad among Neuters or at home in his own Country But
from this general rule we find that in Ancient times such things as were of use in War were excepted which seems to be agreed unto by the Nations for this reason that the hopes of recovering such things to themselves might render them the more cheerful and industrious in regaining them For the Laws of most Cities in those times were made for the encouragement of valour and in favour to military affairs wherefore their consent was easily gained What things were accounted useful in War we have already summed up out of Gallus Aelius but we find them more accurately set down as well by Cicero in his Topicks as by Modestinus As namely Ships that are long and fit for burden but not such as are made for pleasure Mules but such as are accustomed to the Pack-Saddle Horses and Mares but such as will abide the Bit and are fit for service Armes also and Apparel are of necessary use in War but these do not return by Postliminy because they were thought to merit no favour at all who would suffer their Weapons and Garments to be taken from them nay it was accounted as a crime that deserved punishment as may every where appear in Histories And herein we may observe the difference they made between Horses and Armes the one being capable of reception the other not because possible it was that an Horse may break loose of himself and so fall within the Enemies power without any default of his Rider but so could not Arms. And this difference between moveables seems to have continued in use from the Goths until Boëtius lived who expounding Cicero's Topicks seems to speak of this Right as if it were in force at that Day XV. What at this Day But in these latter times if not before this difference is taken away for now no moveables do return by Postliminy as hath been observed by those who are most expert in the Customs of Nations and the same Custome is for Ships as we may perceive in many places XVI What things are received that need no Postliminy But those things which though taken by the Enemy yet were never within their Garrisons have no need of Postliminy because by the Law of Nations the owner never lost his property in them The like may be said of such things as are taken by Thieves and Pyrates Because as Vlpian and Javelinus answer the Law of Nations never granted unto them a power to alter the property of what they got upon which ground it was that the Athenians were willing to accept of the Island Halonesus which some Pyrates had taken from them as King Philip did from those Pirates as of a thing restored by Philip but not as of a thing given them as will appear by the very Epistle of King Philip recorded by Demosthenes And therefore things so taken wheresoever they are found may be claimed only what out of equity we have already concluded to be just so much ought to be allowed him who at his own charge hath possest himself of them as may be conceived it would have cost the first owners themselves to have recovered them XVII Some alterations may be made by the Civil Law as to their own Subjects Now though it be thus by the Law of Nations yet may the Civil Law otherwise determine it as in Spain the Ships that are taken from Pyrates are theirs that take them so also they are among the Venetians Neither is it unreasonable that a private thing should give way to publick profit especially where the recovery of them must necessarily be accompanied with so much difficulty But yet this Law can be no Plea against Strangers who may notwithstanding challenge their own things XVIII How Postliminy is observed among such as are not Enemies but Strangers But that which is more to be admired is that which the Roman Laws do testifie namely That this Right of Postliminy took place not only between enemies but even between the Romans and Strangers But surely this as I said elsewhere * See second Book ch 15. §. 5. was but a Relique of that barbarous Age wherein the general corruption of mens manners had taken away all sense of that natural Society that should be between all Mankind and therefore among Nations that had no publick War one against another there was practised among private men a certain licence of War which their different language and manners seemed to denounce which licence that it might not swell so high as to kill each other it pleased the Nations to limit and to agree That they that were taken on either side being Strangers should be held as Slaves and consequently they introduced the Law of Postliminy which puts a difference between Strangers and Robbers or Pyrates because Strangers do usually agree upon equal Conditions which Pyrates and Robbers disdain It seems that of old it hath been a Case much controverted Whether if the Subjects of a Confederate Nation being Slaves here should escape from us and get home They may be said to return by Postliminy This Question we find proposed by Cicero concerning which Gallus Aelius delivers his opinion thus We saith he Lib. 1. de Orat observe the same Right of Postliminy with a free people with Confederates and with Kings as we do with Enemies But Proculus's opinion was quite contrary I doubt not saith he but that both our Confederates and they that are a free Nation are all Strangers unto us between them and us there is no Postliminy We are therefore to distinguish of Leagues for if any Leagues be made on purpose only to put an end or to prevent open War those Leagues do not for the time to come hinder either the taking of Prisoners or the Right of Postliminy But if in the Articles of the League it be exprest That the Subjects of either Nation may upon the publick Faith safely travel or sojourn in the others Dominions then it is not lawful to take Prisoners on either side and so there is no place for Postliminy And this I take to be the meaning of Pomponius where he saith If there be a Nation with whom we have neither friendship nor hospitality nor League made for friendships sake these indeed are not enemies But yet whatsoever of ours comes to them is theirs and a man that is free with us being taken by them is made their Slave and it is the same if any thing come from them to us and therefore in this case Postliminy is granted In mentioning a League made upon the account of friendship he shews that there may be Leagues that have no Right either of friendship or hospitality And Proculus sufficiently declares That by a people confederated he understood such a people as had promised friendship and safe hospitality where he subjoined these words For what need is there of Postliminy between us and them when they may equally retain as well their own liberty as property in their own things with us as
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
from War where also we must note That under this general name of Merchant are comprehended all kinds of Tradesmen and Artificers who for their gain do usually prefer Peace before War XIII And Captives Let us now proceed to such as have born Armes That of Pyrrhus in Seneca we have already quoted namely That though the Law permits us to do what we please to Captives yet equity and conscience forbid us to take away their lives Of the like opinion was Alexander who as we have said places Captives in the same condition with Women whereunto we may add that of St Augustine to Boniface Epist 1. Hostem pugnantem necessitas perimat non voluntas It is not cruelty but necessity that makes us destroy a fighting Enemy As force and violence is properly used against those that are armed against us so to those whom the chance of War hath left naked and unarmed mercy and compassion is peculiarly due especially to those who can no ways endanger the publick peace Xenophon writes of Agesilaus That he gave command to his Souldiers not to destroy their Prisoners as Malefactors but rather to preserve them for humanity sake And Diodorus testifies of the Greeks That they always fought valiantly where they found resistance But to those that were subjected they were very merciful Salust in his Jugurthine History speaking of some young men who having yielded themselves were put to death saith That it was done contrary to the Law of Armes that is contrary to equity and the custom of civilized Nations Lib. 5. Lactantius of the times he lived in saith Parcitur victis est locus inter Arma clementiae We spare those whom we have conquered and there is clemency to be used Hist l. 4. even in Armes Tacitus commended Primus Antonius and Varus two Flavian Commanders for that they never committed any act of cruelty beyond the place where the Battel was fought De pace secunda So likewise Aristides It is the custom of our Age by force of Armes to subdue those that resist us but to deal mercifully with those that submit unto us Concerning such as were taken Prisoners in the War the Prophet Elisha puts this Question to the King of Samaeria 2 Kings 6.22 Wouldst thou kill those whom thou hast taken Captive with thy Sword and with thy Bow When one in Euripides demanded Whether the Grecian Laws did forbid the killing of an enemy he as readily answered Quem Mars reliquit Praelio superstitem That they did if that Enemy survived the Fight And therefore Eurystheus being taken Prisoner comforts himself in this He that kills me guiltless shall never be Plutarch comparing Marcellus with Pelopidas seems to condemn Marcellus for his cruelty in shedding bloud unnecessarily after the Victory whereas neither Pelopidas nor Epaminondas did ever put any to the Sword whom they had overcome neither did they take away the liberty of any City that they took neither would the Thebans as it was believed have exercised that cruelty upon the Orchomenians had either of these Commanders been present Besides when Scipio would have put all the Inhabitants of Vtica to the Sword Plut. in Caâ— Vticensi witâ—out regard of Age or Sex because they had taken part with Caesar Cato would not suffer him But protesting against it as an act of inhumanity and calling the Gods to witness in open Council with great difficulty he saved them from so great a slaâ—ghter Procopius in the first of his Persian Wars which he also repeats in his second saith That to use cruelty to the Conquered is repugnant to the Rules of Piety so that when Cabadas King of Persia after he had taken the City Aâ—mada by storm had made great slaughter among the Inhabitants a certain old Priest told him That to kill so many Captives was not King y. Goth. l. 1. c. ib. And the same Procopius elsewhere records an excellent Speech of Belisarius to his Souldiers upon the taking of Naples disswading them from the unnecessary effu on of bloud Do not saith he extend your hatred of your enemies beyond measure No Conquerours continue to hate the Conquered If you kill them now you do not abate the number of your Foes but of your Subjects Do not therefore prosecute your revenge too far but consider that having subdued them to become now Slaves to your own passions is ignoble Ann. Comnâ—nat When Alexius the Emperour was perswaded by one of his Council to kill his Scythian Captives he made this noble Answer Though they be Scythians yet are they men though they be enemies yet do they deserve pity It is the chance of War only that puts the difference between us and them It is a most excellent Observation that we read in Gregoras Lib. 4. Whatsoever is done in the heat of Fight is pardonable because the faculties of Discourse and Ratiocination is as it were block'd up so that the hands being as it were drunk with anger and revenge and wanting the guidance and manuduction of Reason do even they know not what But when by our strength and courage our dangers are over See Chap. 7. towards the end and our Reason enjoys her liberty to examine and judge of what we are about and to issue out her Mandates to the hands for execution then if any things be done unjustly or unseemly it plainly shews the perverseness of the mind Julian in his second Panegyrick on Constantius under whose Person he describes a vertuous Prince saith That having conquered his enemy by force of Arms he makes no farther use of the Sword esteeming it impious to kill him who is no longer able to defend himself And therefore Diodorus Siculus condemneth the Byzantines and Chalcedonians of notorious cruelty for killing a multitude of Captives taken in War And in another place he tells us That it was a Law generally observed to spare Captives and that he that violates this Law doth doubtlâ—ss sin against God and man And hence it is that in all Stories we find those Commanders highly commended who having taken a multitude of Captives whom they could not without danger and charge keep have chose rather freely to dismiss them than to kill them XIV They are to be spared that surrender on equal Conditions Wherefore they that in a Battel shall cry for Quarter or in a Siege shall offer to yield upon Conditions to save their lives are neither of them to be rejected The Romans as Procopius testifies * Goth. 4. thus bespeaks the Persians whom they held closely besieged in the Fort of Petra We say they do extremely commiserate your hard condition and would gladly spare you though ye wish to dye and that life which ye so nicely disdain we would save as it becomes Christians and Citizens of the Roman Empire And therefore Arrianus speaking in that Slaughter which the Thebans made of their Captives that had yielded to mercy saith Lib. 3. That it
that City may stand no less obliged than their Parents But for those that are unborn this reason sufficeth not but some others are requisite As the express consent of Parents together with the necessity of nourishing them and that even for ever or for affording them aliment and that so long only until their labour shall fully satisfie the charge of their maintenance If any Right beyond this be given to a Lord over such Children it proceeds from the too great indulgence of the Civil Law to the Lords themselves IX What may be done where Bond-slavery is not in use But in such places where this Right of making Men Slaves is not in use there the best way is to exchange Prisoners And next to this is to release them paying their ransoms which likewise should not be over great but moderate Neither can any man set down a certain rate but common humanity instructs us that it should not be so excessive as that the Prisoner being released should thereby want necessaries which are allowed by the Civil Law even unto such as through their own peculiar fact are fallen into debt In other places the ransome of Prisoners is prefixt either by mutual covenants or by the customs of the Countries Amongst the Graecians of old the ransome of a common Souldier was Mina a Pound that is of our Coin about three pounds two shillings and six pence We now a days require for every Souldier a Months pay In the War between France and Spain in Italy the ransome of every Horse-man was the fourth part of a Years pay unless he were a Captain or some other eminent Commander or that he was taken in a just Fight or at the storming of a Town as Mariana testifies Lib. 27. c. 18. Plutarch records it of the Corinthians and the Megarenses Quest Graec. That the War between them was prosecuted mildly and as it became Neighbours and Kinsmen If any man were taken Prisoner he that took him entertained him as his guest and taking his word for his ransom dismist him friendly whence arose the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one that by the courteous usage of his Enemy taken in the War makes him his friend But much more magnanimous was that of Pyrrhus so highly extolled by Cicero No wealth I ask nor ransome will I take 'T is Steel not Gold that must the Victor make Yet whoso after Fight shall chance to live To him his liberty I 'll freely give Pyrrhus thought no doubt that his cause was good but yet he was content to restore them to liberty whom some probable reason had induced to fight against him The like fact of Cyrus Xenophon highly commends As Polybius doth that of King Philip Cyropast l. 2. And Curtius that of Alexander Plutarch also records the same of King Ptolomy Vit. Demet. and of Demetrius that they strove whether of them should excel not so much in Arms as in clemency and benignity towards the vanquished Strabo l. 7. And Dromichaetes King of the Getes having taken Lysimachus Prisoner in War entertained him friendly as his Guest and understanding by the King how poorly and yet how obligingly the Getick Nations lived he chose ever after rather to make them his Friends than his Enemies CHAP. XV. Moderation in the acquiring of Empire I. How far internal justice permits the acquiring of Empire II. That by this Right to spare the Conquered is laudable III. Either hy mixing the Conquered amongst the Conquerours IV. Or by leaving them under their Government who before had it V. Yet sometimes placing Garrisons amongst them VI. Or by imposing on them tributes and such like charges VII The benefit that ariseth from such moderation VIII Examples and of the change of Government over such as are conquered IX The Empire though gained yet some part thereof ought to be left to the vanquished X. Or at least some kind of liberty XI Especially in matters that concern Religion XII At least the vanquished are to be treated with much clemency and why I. How far Empire may be gained by internal justice WHAT in equity is requisite or in humanity commendable being done to single persons is so much more being done to a Nation or any parts of it by how much the good or evil that is done to a multitude is more notorious than the same done to particular men Surely by a just War as other things so also the Right of soveraignty over the people and the very Right that the people have in the Government may be lawfully acquired that is to say so far as the greatness either of the punishment due to their crime or of some other debt doth warrant it Whereunto we may add so far as is necessary to secure the Conquerour from some great and imminent danger that otherwise may befall him But this Cause is for the most part mixed with others which notwithstanding as well in making of peace as in prosecuting the Victory is principally aimed at For in the other cases that the Conquerour remits the punishment or debt it is from his mercy But that security which in publick dangers exceeds moderation is cruelty Thus doth Isocrates advise Philip It will suffice thee so far to subdue the Barbarians that thou mayest secure the Peace of thine own Country II. To abstain from it commendable That which Salust records of the Ancient Romans is worthy of our imitation namely that they were so Religious That they they took nothing away from the conquered but the licence they took to do them wrong And in another place he tells us That wise men make War for Peace sake and sustain labour in hopes of rest Sapientes pacis causa Bellum gerunt Jugurth De Rep. l. 7. c. 14 15. c. 10. De Off. l. 1. laborem spe otii sustentant Not much discrepant is that of Aristotle The end of War is Peace as the End of Motion is rest To the same purpose is that notable saying of Cicero Bellum ita suscipiatur ut nihil aliud nisi Pax quaesita videatur War should be so made as if nothing else were thereby intended but Peace And in another place War should be undertaken for this cause only that we may live in Peace and not be injured Nor is this much different from what our Christian Divines teach us The end say they of War is to remove those things that disturb Peace Before Ninus his Raign Kings were studious to preserve the bounds of their own Empires but not to enlarge them Thus Alexander wrote to Artaxerxes the Persian Manendum cuique intra fines suos nihil novando Every King ought to confine himself within his own Dominions and not encroach upon anothers neither should any man out of an uncertain hope invade the right of another but rest contented with his own All Kingdoms were at first limited with their own bounds neither were Kings so Ambitious of Empire to themselves as of glory
to their People and if they did make War it was not for Dominion but for the honour of the Conquest Now unto this Ancient Custome it is that St. Aug. laboured as much as in him lay to reduce us De Civit. Dei l. 4. c. 15. Let Princes saith he consider that it belongs not to good Kings to take pride in the enlargeing their Dominions for as he there adds Major est foelicitas vicinum habere concordem quam malum subjugare bellantem It is greater happiness to have a good Neighbour that is peaceable Lib. 5. cont Julian than to subdue a bad one that is troublesome Upon which account it was that St. Cyril commends the Hebrew Kings who always contented themselves with their own bounds without encroaching on their Neighbours which was the very sin for which the Prophet Amos did so severely reprove the Ammonites III. Which may be done either by intermixing the Conquerors with the Conquered Nearest unto this original draught of innocence comes that prudent moderation used by the old Romans What saith Seneca * Lib. de Ira c. 34. had our Empire been had not a wholesome providence taught us to intermix the Conquered with the Conquerours Our great founder Romulus as Claudius in Tacitus tells us †Annal. l. 5. Lib. 1. did so prevail by his wisdom that many people whom the rising Sun saw his Enemies the setting Sun saw his Subjects and Citizens Neither was there any thing that did more ruine the Lacedemonians and the Athenians than this That they always drove away the vanquished as Strangers Livy informs us that the Commonwealth of Rome was much augmented by the reception of the Conquered into their City whereof Histories afford us plenty of examples As of the Sabines the Albanes the Latines and so of the rest of the Italian Nation till at length Caesar first led the Gaules in triumph and afterwards admitted them to be of his Court and Council Cerialis in Tacitus thus bespeaks the Gauls Ye your selves are usually admitted to command our Legions Ye are they that govern not this only but others of our Provinces there are no places of trust from which ye are excluded wherefore as he there infers ye ought in all reason to endeavour all you can to preserve that life and Peace which ye though vanquished do equally enjoy with us the Victors Nay which is yet more admirable by the decree of the Emperour Antoninus all that lived within the Circle of the Roman Empire were made Citizens of Rome which are the very words of Vlpian whereupon Rome was then accounted as Modestinus affirms Communis Patria The common City or every mans Country Whereof Claudius thus Hujus pacificis debemus moribus omnes Quod cuncti gens una sumus To th' honour of this Prince it may be said That of the World he but one Nation made IV. Or by leaving the Government to the vanquished Another kind of moderation used in Victory is when the Government is left in the same hands either of King or People who hold it before the Conquest Thus Hercules bespeaks King Priamus Hostis parvi victus lacrymis Sen. Troad Suscipe dixit rector habenas Patrioque sede celsus solio Sed sceptra fide meliore tene By a weak Enemies tears ore'tane Take saith he thy Crown again Ascend thy Fathers Throne on high But henceforth rule more moderately So also the same Hercules having conquered Neleus gave his Kingdom to Nestor his Son Thus the Persian Kings were wont to leave their Kingdoms to the Kings whom they had conquered contenting themselves with the bare Victory Thus did Cyrus to Armenius Alexander to Porus. De Clem. lib. 1. c. 21. And this is it that Seneca highly commends in a Conquerour Nihil ex rege victo praeter gloriam sumere To take nothing from the Conquered besides the honour of the Conquest This is triumph over Victory it self and to declare that there was nothing to be found among the Conquered worthy of the Conquerours acceptance but the Conquest it self Thus Pompey having overcome Tigranes left him a part of his Kingdom to govern as Eutropius informs us And herein is Antigonus extold by Polybius That having brought Sparta under his absolute power Lib. 6. he gave the Citizens the free use of both their Ancient Laws and Liberties for which Act his praises were highly celebrated throughout all Greece Thus did the Romans give unto the Cappadocians whom they had conquered a power to use what form of Government they pleased and many Nations we may read of which being Conquered were notwithstanding left free Thus was Carthage left at liberty to live under their own Laws as the Rhodians pleaded to the Romans after the second Punick War Livy lib 32. And when the Aetolians told Quintius that there could be no firm Peace until Philip of Macedon were driven out of his Kingdom He answered That they were too severe in their censures as being unmindful of the common custome of the Romans who for the most part spared those whom they had in their power adding this withal Adversus victos mitissimum quemque maximum animum habere That he who was mildest towards the Conquered was ever held most magnanimous V. Sometimes by keeping of Garisons Sometimes though the Empire be restored yet the Conquerours security is also provided for Thus it was ordained by Quintius That the City of Corinth should be restored to the Achaians but withal That there should be left a Garison in Acrocorinth which also was afterwards withdrawn and that Chalcides and Demetriades should be detained until all fear concerning Antiochus should cease IV. Sometimes by imposing Tribute The imposition of Tribute is oft-times not only for the defraying the charges of a War but for the mutual security of both the Conquerour and the Conquered for the time to come Cicero in his Epistle to his Brother Quintus concerning the Grecians * Lib. 1. ad Quintum Fratrem Epist 1. writes thus Let Asia also consider That unless She be secured by the Roman Power She can never be without a Foreign War or Domestick Broils And since this Power that secures her cannot possibly subsist without Tribute good reason it is that She should be contented with sopme part of her wealth to purchase to herself perpetual Peace Thus doth Petilius Cerealis in Tacitus plead for the Romans Hist l. 4. with the Langres and other Gauls We say they though often provoked yet by the Right of Conquest do offer unto you one only Condition of Peace namely That ye pay your Tribute For Peace among Nations cannot be defended without Armes nor Armes without Pay nor can we pay our Souldiers without Contributions Hereunto likewise we may refer those other things mentioned before Lib. 2. c. 15. § 7. where we discoursed concerning unequal Laws as the Delivery of Armes of Fleets of Elephants the prohibiting the use of Weapons the raising of
Roman Souldiers lived in their Camp at Sucro when straggling from the Camp by Night they robbed and pillaged the Countries round about that lived at Peace Adds this as the Cause That all things were done loosly and licentiously without order or military discipline Another notable place we find in Livy to this purpose where description is made of Philips march through the Territories of the Denthelatae Lib. 40. These saith Livy had been Philips Associates but yet the Macedonians pressed by want wasted their Country as if it had been the frontiers of their Enemies robbing and pillaging every where as they went first great Houses and small Villages afterwards laying waste some Towns to the no little shame of the King who from all parts heard his friends and confederates imploring in vain the Gods and him for redress Ann. 12. Pelignus we find branded by Tacitus with infamy for that he did more hurt to his Friends than to his Enemies And the Vitellian Souldiers were notorious throughout all Italy for their sloth and Thievery and for this cause were only terrible to those that entertained them And here I cannot but insert the opinion of some Divines which I conceive to be very right namely Aegid Regius de act supernat disp 31. dub 7. n. 95. That the King who pays not his Army stands obliged not to the Souldiers only but to his Subjects and Neighbours for the injuries they sustain by them who without pay cannot live but by rapine and plunder III. The duty of those that are at Peace On the other side it is the duty of those that are not concerned in the War to do nothing whereby he that foments an ill cause may be strengthened or whereby he that moves in the defence of a good cause may be hindered according to what hath been already said But where the cause is doubtful Lib. 3. c. 1. to shew themselves equally civil to both parties whether it be by suffering them to go through their Country to pass and repass with their Legions or by not relieving either being closely besieged The Corcyrenses in Thucydides tell the Athenians That it concerned them if they would be thought Neuters neither to suffer the Corinthians their Enemies nor themselves to raise forces in Attica For this the Romans objected against Philip that he had doubly violated his League with them first in wronging their Friends and again in assisting their Enemies with Men and Money The very same objections T. Quintius makes in his Treaty with Nabis Thou say'st saith Quintius that thou hast not directly violated thy league with us How often shall I convince thee that thou hast I shall not use more arguments but shall draw to this issue By what means thinkest thou may friendship be broken certainly by these two chiefly if thou persecutest our Associates as thine Enemies or joinest thy self with our Enemies against us Agathias tells us Lib. 3. Goth lib. 1. that he is an Enemy who doth that which pleaseth an Enemy And Procopius reckons him to be in the Enemies Army who supplies the Army of an Enemy with things properly appertaining to War Queen Elizabeth tells the Hansetowns complaining that their priviledges were broken by her seizing of some hulks carrying warlike provisions into Spain who had then open War with England That the right of neutrality is in such sort to be used Camden Ann. 1589. that whilst we help the one we hurt not the other And so on the contrary as Amalasuntha in Her Epistle to Justinian pleads He is a friend and companion who though he stand not in a readiness to fight yet readily and openly supplies us with all things requisite for War Of the same opinion was Demosthenes of old Qui ea facit aut machinatur quibus ego capi possim etiamsi nec feriat nec jaculum emittat hostis mihi est He that makes or contriveth such things whereby I may be taken though he neither strikes me nor throws a dart at me is mine Enemy M. Acilius tells the Epirots Livy lib. 36. who though they sent no supplies of Souldiers to Antiochus yet were accused for supplying him with money that he knew not whether he should rank them among Neuters or Enemies Lib. 37. And L. Aemilius the Praetor reproves the Teji for that they had victualled the Enemies Fleet and promised them wine adding withal that unless they did the like for them they should be held as Enemies We shall conclude with that of Augustus Caesar recorded by Plutarch Plut. Brute Pacis jus amittit Civitas quae hostem recipit That City hath lost its right to Peace that receives and protects an Enemy It would be very commodious for us therefore if such a League could be made with both parties engaged in War that with their consents we might sit still as wellwishers to both and yet that it may be lawful for us to perform the common duties of humanity to either of them So Livy Pacem Lib. 35. quod medios decet amicos optent Bello se non interponant It behoves those that are friends to both parties to endeavour to make Peace but not to engage themselves in War on either side Archidamus King of Sparta perceiving the Elians inclining to take part with the Arcadians wrote an Epistle unto them wherein were contained these words only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is good to be quiet CHAP. XVIII Concerning things privately done in a publick War I. Whether it be lawful to hurt a publick Enemy privately explained by a distinction II. What they may lawfully do against an Enemy by internal justice that make War at their own private charge i. e. as Privateers first in respect of the Enemy III. Secondly in respect of the State or City under whom they fight IV. What the Laws of Christian Charity require of them V. How a private War may be mixt with a publick VI. Vnto what he stands obliged who without order damnifies an Enemy explained with a distinction I. Whether to hurt a publick Enemy privately be lawful WHAT we have hitherto said doth mostly appertain unto such as have the supreme Authority in an Army or unto such as are to execute publick commands Now we are to see what in a publick War may privately be done whether we respect the Law of Nature Nations or the Divine Law Cicero in the first of his Offices relates that when Marcus the Son of Cato the Censor had listed himself in the Army under Pompilius the General that Legion in which he served being disbanded yet he for the delight he took in Arms continuing still in the Army Cato wrote to Pompilius desiring him in case his Son would continue there to give him a second Oath adding this reason because the former Oath being with that Legion discharged it was not lawful otherwise for his Son to fight the Enemy Whereunto the same Cicero adds the very words of Cato recited out
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
pledges LX. When the Right of redemption of things engaged is to be judged as lost I. The Division of Faith in order to what follows ALL agreements between Enemies depend upon Faith either exprest or understood Faith exprest is either publick or private Publick is either that given by supreme or that given by subordinate power That given by the supreme power either puts an end to the War or is of some force the War continuing Among those things that conclude a War some things are looked at as Principals and some Accessaries The principals are those very things that finish it either by their own act as the Articles of agreement or by consent on both sides that it shall be determined by some other thing or by Lots by the event of some Combats the award of Arbitrators whereof that by Lots is altogether fortuitous the other two moderate the case by the strength of the mind or of the body or by the discerning faculty II. The power to make Peace is in the King if the Government be Kingly They that have power to begin a War have also a power by Articles of agreement to to end it * See Bo. 2. ch 15. §. 3. for every man is the best moderator of his own affairs whence it follows that in a War on both sides publick the power of making Peace belongs to them who are entrusted with the Supreme Authority as in a Government truly Monarchical to the King so as he be no ways disabled to exercise that Authority III. What if the King be an Infant For in case a King be not at Years of discretion which in some Kingdoms is determinable by Law * Bo. 1. ch 3. §. 24. Francis King of France being Prisoner to Charles the Fifth Emperour and King of Spain his case about the Dutchy of Burgundy See Lord Herberts Hist of H. the 8th pag. 193. but in others by probable conjectures or if he be not of sound mind he is not capable of making Peace The like may be said of a King that is in Captivity in case that Kingdom had its first rise from the suffrages of the People it being incredible that the People should ever consent to entrust their Government into such hands as were not at liberty to exercise it wherefore in this case also though not the full power yet the exercise of that power and as it were the Guardianship of it is in the people or those whom the people shall surrogate in their stead Thus when Rodolfus the Palatine fled through fear into England and when the Bishop of Mentz was driven out of his Territories by the Bishop of Tryers neither the one nor the other lost their Electorship But yet as to those things that are privately his own a King though a Captive may make any Contract good after the example of those things that we shall say concerning private agreements But what if the King be an exile as Camillus was when he lived amongst the Vejans of whom Lucan writes thus Vejos habitante Camillo Illic Roma fuit is it in his power to make Peace yea surely if it appear that he lives free obnoxious to none for otherwise the condition of an exiled King is not much different from that of another Captive a banished man being but a Prisoner at large Thus Cicero speaks concerning Regulus that he refused to give his opinion in the Senate alledging that so long as he stood bound to his Enemies by Oath he was uncapable of voting as a Senator IV. In other States it lies in the major part But where the Supreme Authority is seated either in the Nobles or in the People it is in the power of the major part of them to make Peace The Decrees either of the publick Senate in the former or of the Citizens in the latter being to be pronounced by such as by use and custome have a Right thereunto according to what we have elsewhere delivered Bo. 2. ch 5. §. 17. And therefore what is thus agreed upon shall oblige the whole yea even those that dissented from them Thus Livy * Lib. 32. Whatsoever is once upon a full debate decreed is to be defended by all even by those who had been before against it Wherewith accords that of Dionysius Halicarnassensis Parendum est his quae pars major decreverit Whatever the major part thinks fit must by all be obeyed So likewise Appian Omnes decreto obsequi tenentur nulla admissa excusatione What is so decreed is by all men to be observed no excuse being admitted of to the contrary With whom agrees Pliny Quod pluribus placuisset cunctis tenendum What pleaseth the greater part obligeth all But those whom Peace obligeth it also profiteth Iisdem volentibus prodest V. How an Empire or any part thereof may be alienated for Peace Now let us see what manner of things they are that are subject to such agreements most Kings now a days because they hold not their whole Kingdoms nor any part of them in propriety but in respect of their fruits and profits only cannot by any Contract or Agreement alienate them * See above Bo. 2. ch 6. §. 3. and what follows Yea and before they receive that great charge of the Empire upon them during which time the People are as yet above them all such acts of alienating the Kingdom or any part thereof may by a publick Law for the future be made absolutely void so that as to what concerns That they shall not be binding at all And credible it is that the People were generally thus minded Ne alioqui si ad id quod interest salva esset actio contrahenti subditorum bona pro debito regis caperentur Lest otherwise if as to that which is so provided against the action should hold good to the person contracting the goods of the Subjects might be taken for the Debt of the King And consequently this caution of not alienating the Kingdom would be in vain But that the whole Empire may be firmly alienated the whole body of the People must yield their consents which may quickly be done by their Representatives which are the three Orders or States of a Commonwealth namely the Clergy Peers and the Commons But that any part of the Empire may be firmly alienated a twofold consent is requisite first of the whole but more especially of that power which is to be alienated which cannot be severed from the body whereunto it grew against its will This was the French Kings Plea why he would not deliver Burgundy as he had upon his Oath agreed and promised But yet in a case of extreme necessity and otherwise unavoidable That very part may firmly conveigh away the Government over themselves unto any other without the consent of the People because credible it is that when that society was instituted this power was reserved But in Kingdoms that are Patrimonial what should hinder a King from alienating
just War it may be lawfully acquired 524. distinguisht from the manner of holding 42. over some part of the Sea without any other propriety may be possest and how page 91 92 93 Empire and Dominion when they cease 141 142 143. not changed with the imperial seat page 144 Empire may be acquired either so far as it was in the conquered King or absolutely and so despotical page 485 The Empress Irene's design to divide the Empire between her Sons page 127 Enemies to be buried page 216 Enemies are they that denounce War the rest are Thieves and Robbers and Pyrates page 450 An Enemies Country with and how far it may be wasted page 511 c. To Engross the Fruits of one Nation how far lawful page 87 To Enrich our selves with other mens losses unnatural page 147 Ensigns of Sovereignty granted to a Prince of a free People page 41 42 Ensurances void either Party knowing the Goods either to be safe or lost page 164 Epicurus taking away Religion left nothing to Justice but an empty name page 386 Equal Rates set upon things to be exchanged ibid. Equality in Contracts what page 159 Equality what takes place in Acts merely or in part beneficent page 160 Equity takes place where the Obligation is in the literal sense grievous and intolerable page 197 198 Equitable Courts necessary 197. in what Cases especially ibid. Equity the Corrector in such Cases wherein the Land by reason of its generality is deficient ibid. Equity what page 553 Equivocal expressions not admitted but upon great occasions 440. especially in Leagues page 191 Errour whether it makes void an Act 151. in some Points of Religion whether punishable page 391 392 An Errour or mistake unknown to either of the Contractors at the Contract-making must be rectified page 160 Of Errour the punishment is to be taught page 392 An Escape made by a Captive he recovers all he lost by Postliminy page 488 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 534 Esseni swear not 220. they wholly abstain from War page 430 Evangelical Precepts whether comprehended in the Law of Nature page 16 Evidences no part of the substance of Contracts page 199 Of Evil the least to be chosen 411. hath the appearance of good page 488 Excursions above ten miles from the Camp makes what is taken theirs that take it page 473 Executioner to be satisfied in the Malefactors crime page 430 431 Exheredation 124. a Son exhederated whether any thing be due unto him ibid. whether a King may exheredate his Son page 130 Exiles their City hath no power over them 115 to inhabit any other Country lawful page 85 Extremity of our Right not to be exacted by War page 518 F. BY the Fact of another none naturally obliged but the Heir page 446 Factors and Masters of Ships how far bound page 154 Faithfulness the foundation of Justice page 151 Faith given to Subjects or Slaves though Rebels as such must be kept page 539 Faith sometimes taken for a full perswasion of the mind page 411 Of Faith whatever is not is sin ibid. Faith to be kept with the faithless 173. with Pyrates and Thieves upon Oath ibid. Faith given by Signs equivalent to Oaths 175. its breach though by Oath not punishable by humane Laws and why 538. sometimes given by silence 569. to be kept with Enemies of all sorts 536. even with Pyrates and Tyrants and when 537. Objections answered page 538 Faith not broken by a generous man though provoked 542. to be kept with the perfidious 540. and when not page 541 Whether private men may be compelled to keep their Faith with an Enemy page 557 558 Faith given in War by private men to be kept even to Pyrates Robbers and Tyrants though given but by Minors page 538 Fides Attica page 498 To preserve Faith an Exhortation to Kings page 571 False speaking to some Persons better admitted than equivocations c. page 444 False speaking to Infants and Mad-men no Lye page 442 Falshood of Joseph and the simulation of Solomon no frauds page 443 Falshood may be sometimes expedient for the common safety ibid. False Prophets page 392 Fate how understood in the Roman Laws page 472 473 Father of a Family what it signifies page 521 Fathers have as much power over their Children as over Slaves page 104 The Fathers the more Ancient the more Authoritative Pref. xix in them three things observable page 25 26 c. A Father when he hath power to sell his Son 104. forfeiting his Estate his Children may be said to suffer but not to be punished page 400 Fear uncertain no ground of War page 71 406 Where the Fear of loss is greater than the hopes of gain none will adventure page 419 By the Fear of War what is gained cannot be recalled yet from a Thief it may if not bound by Oath ibid. Fee-farms and Copy-hold why first granted 129. this done first by the Germans page 38 Ferus and Erasmus great Lovers of Peace Pref. xii their Opinion concerning War refuted ibid. Feuds 51. Empires may be so held from another it implies Obligations personal or real but takes away no Right of Empire or Dominion page 52 To Fight for Pay only unlawful but to receive Pay being lawfully called to fight lawful page 426 No Fighting against Famine page 420 Firing of Houses in War lawful page 434 Fish in Ponds Deer in Parks held in propriety page 135 Fish and Fowl though naturally common yet may the Owner of the Land or Water forbid their taking page 81 Flight from Persecution in what Case lawful page 61 By Flight they that would save themselves in a Siege by the Hebrew Laws might page 508 Force to repel with force naturally lawful 14. not all unjust 12 13. Force for punishment lawful page 434 By Force and Armes to be thrust out of possession what it signifies page 196 The Form of a Commonwealth how changed 540. of denouncing of War page 70 71 Foreigner compared with a Proselyte how they differ page 8 Forts of Friends weakly guarded may to prevent danger to our selves be surprized by us page 82 Frailty humane and Fortunes instability great Motives to clemency page 504 Frater quasi fere alter page 417 Fraud consists in acts negative or positive 438. whether in War lawful 337. in its positive Acts distinguisht if by acts into simulation if in word into a lye page 338 A Free-pass how to be interpreted 560. it extends to Persons Goods and Attendants page 561 Freedom is either Personal or Civil page 42 A Free-pass dyes with him that gave it 561. if during pleasure only how to be understood ibid A Free-State if power over its Subjects page 201 A Free Nation is not subject to another page 49 French Kingdom anciently Elective 144. their custom to avoid Civil War 414. distinct from the Romans 144. divided into Eastern and Western ibid. their Succession Agnatical 130. their custom concerning Captives page 484 Friends to be assisted if with
is to be esteemed beyond the thing page 162 163 To Use a mans help being offered is lawful though to him that offers it it be unlawful page 446 Usurper who page 405 An Usurper not to be killed but obliged by private men by whom he may 64 65 66. his act binds not a lawful King 180. but in some Cases his Subjects page 64 65 Usura Foenus how distinguisht by the Roman Laws page 163 Usury by what Law forbidden 162. under it what gain falls ibid. concerning it what the Civil Law hath determined 164. what the Law of Holland ibid. W. WAR and Arms distinguisht Pref. vi when justly made Pref. xi to be justly managed ibid. War defined 2. proved lawful by the first principles of Nature 11. by the Law of Nature 11 12. by right reason and by the nature of human Society 12. by sacred story 13. by the consent of the wisest in all Nations 14. not repugnant to the Law of Nations not to the Divine Law ibid. avoided by the Primitive Christians to prevent some Acts which their Religion allowed not page 26 War some lawful proved out of the Fathers 26. publick private and mixt 31. private permitted by Moses 32. after tribunals erected sometimes lawful 31 32. private in our own defence lawful 33 34. solemn and less solemn ibid. sometimes made by inferiour Officers and whether such a War be solemn or publick 35. whether made by inferiour Commanders by guessing at the Will of their Prince ibid. War to make without Commission from the Prince Treason ibid. solemn cannot be but between Soveraign Princes page 35 36 452. The War of Manlius against the Galatae Caius Caesar in Germany Octavius and Decimus Cassius whether just page 35 36 War against Superiours unlawful 54. without Cause unjust 70. Civil worse than Tyranny page 65 War should be just if we would have it prosper 70. it hath three efficient Causes Principal Auxiliary Instrumental 66. it begins where Justice ends 69. its pretences always just though its Causes sometimes unjust page 70 War caused for wrongs done or in our own defence just 70. made for others naturally lawful 66. to repair damages or to exact punishment lawful 383. for punishment only seldome just 385 386. made to lessen the power of a Neighbour Prince only unlawful 76 77. for sins against God whether lawful 386. without cause suspected to be predatory 405. the most natural is that against wild Beasts next is that against men as brutish as Beasts page 384 385 By War some things gained are the Kings page 43 44 War between Christians not to be made for the Scriptures misunderstood 391. then profitaable when our Enemies will not otherwise do us Justice 412. when unlawful though the Cause be good 409. whether it may be on both sides just 414 415. undertaken for Religion or Liberiy whether lawful page 416 War made for a single Subject not always convenient for the whole 422. for the defence of Subjects lawful ibid. for punishment seldom made by Princes of equal power page 420 The Condition of War miserable page 421 In War many changes and chances happen which cannot be foreseen page 418 War may prudently be undertaken where there is great cause and great advantage 420 421. may be in respect of Subjects on both sides just 415. denounced against Princes and against all that are under his Government 447. whether it may be made as soon as denounced and in what Cases 455. made by Pirates or Subjects have no effect of a solemn War ibid. That War is just that is made for the recovery of things taken away that is publickly decreed and solemnly denounced page 452 In War the effects are lawful i. e. not punishable 457. its licence extends to all that are found among Enemies even Strangers 458. the Innocent and Nocent fare alike ibid. its rage 459. not to be waged but with some clemency 497 498. especially amongst Christians 495. made against Walls Pillars Houses malicious page 512 In an unjust War as things so a People taken should be restored to Liberty 530. what is taken should be restored page 496 A War may be mixt in part publick in part private 435. may be made by Souldiers though wicked 431. may be made against such as sin against the Law of Nature 384. made to compel to Christianity unlawful page 389 War to be sometimes avoided by Princes for their Subjects sake 418. made to establish Peace 524 571. for revenge not to exceed a just measure page 497 498 Vnto an unâ—ust War none to be compelled page 187 War may lawfâ—lly be made for Friends and Associates 424. c. for the Subjects of another Prince 425. for any men page 424 War then just when necessary it shou'd be our last remedy page 452 Wedlock how it differs from Matrimony page 112 Of Weight or measure to exact more or less than is contracted for is Theft page 160 A Wife may rocover from her Husband what she lent him if thereby he be enriched 147. she may claim the Estate if bought with her money ibid. she hath power over her Husbands Body by the Gospel Law page 109 Wives many to have at once lawful of old ibid. whether it be lawful to forsake them ibid. in favour to them Divorce permitted to the Hebrews ibid. Wild Beasts how possest 135. by the Germans given to their Prince as all other things that had no owner ibid. in private Woods inclosed are possest ibid. whether the Dominion be lost with the possession ibid. and Fish whose they are 81. that they should be the Kings is not against the Law of Nature page 135 Will what hath no known Cause we refer to Gods will page 390 The Will in some case punishable 374. naturally mutable 379 380. of the Dead a Law page 122 The more of the Will the greater the sin ibid. The Will is moved by things really or imaginably good page 379 To have understood the Will of the Deceased creates a Right page 122 The Will exprest by some outward sign creates a guilt and makes us lyable to punishment page 383 The Will to shew her own freedom acts sometimes without any other reason page 419 420 Wise men make War by constraint Fools for delight page 421 Wisdoms chiefest part is to direct our selves in doubtful cases the next is to be directed by others of greatest learning and experience page 411 412 Wolves Peace with Sheep upon the delivery of the Dogs page 423 Women Captives how favoured by the Hebrew Laws 464. they have no guard for their Chastity 482. their Children Slaves born ibid. Women succeed in Kingdomes that are Patrimonial 127. how they are obnoxious to the licence of War 504. their Empire unknown to the Romans page 144 Women and Children to be spared in War page 504 Words signify by consent but things and acts not so 438. in Leagues taken as vulgarily understood page 190 191 Wrecks that they should be the Kings or Peoples unjust page 121 Writings are but lasting monuments of the contracts but no part of the substance page 199 In a Writing if two clauses clash and cannot be reconciled to which we should incline ibid. if its parts cannot be reconciled the latter derogates from the former page 191 Wrongs on the one side make War on the other side just page 70 X. XEnophon's institution of Cyrus page 4 Xerxes his contest with Artabazanes for the Kingdom page 132 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what page 183 Y. YEA Yea Nay Nay what it signifies page 174 Z. OF Zeal the judgment page 369 In Zealand the Vassals pay Tribute for their common fields to the State whereunto every man contributes his proportion page 138 Zeleucus his Law concerning such as drank Wine contrary to the prescription of their Physicians page 4 Zopyrus another Sinon betrayed Babylon to Darius perfidiously page 569 The End of the TABLE
the people are thereby obliged Posthumius therefore was in the right when he told the Romans That they stood not engaged to the enemy for any thing neither had they commanded any of their Citizens to undertake for them And therefore saith he to the Senate ye have nothing to do with us to whom ye gave no such command nor with the Samnites with whom ye contracted nothing And again I utterly deny that any Contract can bind the people that is made without their approbation And therefore neither are they engaged to make good that wherein they and the Samnites do differ nor to put the Army into the same condition it was in before the Contract made by the Sponsors But if the Samnites would have engaged the people of Rome they should have kept the Army within the Streights of Caudis until they had sent to the Senate and people to treat with them concerning a League and a Peace that they might have judged how much the safety of the Army did concern them And then in case they had not stood to their Agreement they might justly have said what Velleius reports both they and the Numantines did alledge That the violation of the Publick Faith ought not to be expiated with the blood of one single person Whereas now they may with more equity plead that the whole Army is bound by that Agreement For so the Numantines understood it namely that if the Sponsion was not approved of by the people of Rome the whole Army which was thereupon set at liberty should have been delivered unto them The two Consuls the two Questors four Praefects 12 Tribunes all which were delivered up upon the Caudine Engagement but upon the Numantine the Consul only the rest were spared for Tib. Gracchus his sake as Plutarch in the Life of Tib. Gracchus records With us the Sponsors Estates to satisfie the damage and their persons to be made Slaves which certainly had been most just had that Agreement been made by the Sponsors in their Name and at their Command As we read that was which Hannibal made with the Macedonians But if the Samnites were satisfied in the Faith of the persons engaging being the two Consuls and six hundred hostages whom they had in custody they might take their satisfaction from them and blame themselves for accepting them But from the Senate and people of Rome they could expect nothing being no way obliged unto them But yet in case the Sponsors here had pretended to have received power from the people of Rome to contract on their behalf then had they been bound to have made restitution and satisfaction for the damage which by their fraud the Samnites had received But if that appear not then were they obliged to make good that which was in difference by force of the Negotiation And in this case not their bodies only had been obliged but all that their estates would have amounted unto unless some other penalty had been in that agreement exprest in lieu of that wherein the Samnites and the people of Rome did differ For as to the hostages it was expresly agreed that if the peace should not be confirmed as it was promised they should be put to death But whether the same punishment were to have been inflicted upon the Sponsors is very doubtful But the stipulation of a punishment after such a manner made hath this effect that in case that fact engaged for may not be performed nothing else can be exacted by that Obligation for of that which is in difference between them something that is certain is agreed on in lieu of something that is uncertain It was the common opinion of those times that their Lives were also engaged but amongst us it is thought more agreeable to Reason that to satisfie for that which the people did not think fit to grant the Estates of the Sponsors should in the first place be sold And if that were not enough their persons were to be delivered up as Slaves It is recorded by Plutarch of Fabius Maximus Val. Max. l. 4. c. 8. That when the Senate refused to confirm an agreement made by him with their enemies he sold his own Land to preserve his Faith But the Samnites delivered up Brutulus Papius to the Enemy together with all he had for breaking a Truce with the Romans XVII Whether the Articles of agreement being made known to the Prince do bind him in case of Silence There is yet another Question to be resolved namely Whether after notice given to the Supream Power of an agreement so made silence may suffice to prove a consent And here we are in the first place to distinguish whether the Sponsion were purely and simply made or whether it were upon condition that it be ratified by the Supream Power for if it were conditional that condition being fulfilled the Sponsion is of no force like as that of Luctatius which he made with the Carthaginians which the people of Rome denyed to have been made by their Authority And therefore another League was by common consent agreed upon In the next place requisite it is to know whether any thing were by the Decree of the people acted which might probably argue their acceptance of the agreement so made For silence of it self is not sufficient to prove a consent without some other thing or deed which in all probability would not have been had not that engagement been approved of as hath been already declared when we treated of the relinquishing of our propriety But if any such thing or deed happpen which cannot probably be referred to any other cause then it may justly argue a Consent and Confirmation as Cicero well observes in the case of the Gaditans Orat. pro Balhâ— The Romans pleaded Silence against the Carthaginians when they understood the Agreement made by Asdrubal but because that agreement was made in Negative terms namely That no Carthaginian should pass the River Iber it would hardly be admitted that a bare silence should be sufficient to ratifie the fact of another because no Act properly theirs could suffice to prove the ratification of that agreement until some Carthaginian did attempt to pass the said River but being prohibited by the Romans the Carthaginians did obey the Order For such an act hath the force of a positive act and is not to be ranked among those which are barely Abnutive Now if that Accord made by Luctatius had consisted of many parts and if it had constantly appeared that the Romans had observed the rest of the parts which did abridge them of their Common Right this had been sufficient to justifie that that Agreement in all probability was firmly ratified It remained now that we should speak of such agreements as Captains and Soldiers make among themselves not concerning those things which belong to the Supream Power but to their own private concerns and which are permitted unto them to do one to another But we shall have a