Indice in 12. 1640. 5 s. The History of the Civil Wars of France written in Italian by H. C. Davila Translated out of the Original Fol. 1647. 8 s. De Priscis Anglorum Legibus being the Antient Laws of England in Saxon and Lâ—…tin out of the Author Mr. Lamberis own Manuscript Copie 1645. 8 shillings Divine Essayes by the honourable Walter Mountague Esq 4. 1648. Reports or Cases in Chancery Collected by Sir George Cary one of the Masters of the Chancery The whole Office of a Countrey Justice of Peace with an Abridgment of all the Acts and ordinances which any ways concern a Justice of Peace by William Shepheard Esq 1650. 2 s. 9 d. The Compleat Lawyer A perfect abridgment of the Eleven Books of Reports of the Reverend and Learned Knight Sir Edward Coke sometime Chief Justice of the Upper-Bench written in French by Sir John Davis and now Eâ—…glished 1651. 1 s. 6 d. The History of the Life and Reign of Richard the third by George Buck Eâ—…que Fol. 1646. Learned Reports perused and approved by Justice Godbole 4. 1652. The Office and duty of Executors 4. 2 s. 4 d. The Grounds and Maxims of the Law of England by W. Noy Esquire both printed for W. L. D. P. and others 1 s. For the sacred Law of the Land a learned book written by John White Esq 8. 1653. A general Table to all the Reports of my Lord Coke in English 8. 1652. These Books following are to be sold by W. Lee and D. Pakeman at their Shops in Fleetstreet A Collection of all the Statutes frequent in use with Notes in the margent and references to the Book-Cases with an Abridgment of the Residue which be expired or repealed by Ferdinando Pulton of Lincolns-Inne in large Fol. 1640. 38 s. The first part of the Institutes of the Laws of England or a Commentary upon â—…ttleton 17 s. The second part of the Institutes containing the Exposition of many antient and other Statutes of Magna Charta 12 s. The third part of the Institutes concerning Pleas of the Crown and Criminal Causes 5 s. 9 d. The Fourth part of the Institutes concerning the Jurisdiction of Courts 7 s. 6 d. all written by Edward Coke Milite sometimes Chief Justice of the Upper Bench. Fol. 148. The Reports of that Reverend and Learned Judge Sir Henry Hobard Lord Chief Justice of the common-Common-Pleas being inlarged and perfected by his own Copie in Fol. 1650. 7 s. 6 d. The 1 2 3 4 6 7 and 11. Parts of the Reports of my L. Coke in Fol. The Abridgment of my L. Coks 11. Reports by Ed. Tratman 8. 4 s. 6 d. The year-Book of Edward the fourth also Long Quinto of Edward the 4. both Fol. The Register of Writs Fol. 1634. 17 s. Henric. De Bracton De Legibus Consuetudinibus Angliae 4. 1640. 12 s. Presidents the first and second part by W. West in large 4. 10 s. Crumptons Jurisdiction of Courts 4. The Elements of the Laws of England by Sir Francis Bacon sometime Lord Chancellor of England 4. 1639. 2 s. The Judges Arguments about Ship-money 4. 1 s. and 2. pence Natura Brevium by Fitz-Herbert The Office of Sheriffs by Wilkinson 8. 2 s. 2 d. Four Books of Law by Sir H. Finch 8. 3 s. Doctor and Student 8. 1 s. 6 d. A Book of Presidents 8. 1 s. 2 d. Littleton and Perkins together or single 16. The Compleat Copie-holder with the Reading of Copyholds the first by Sir E. Coke the second by C. Caltrop Elquire 4. 2 s. 6 d. The order of keeping of a Court-Leet and Court Baron 4. A little Trease of Bail and Mainprize by E. C. Knight A Declaration of Nusance concerning dwelling-Houses with the resolutions of the Judges of Assizes upon Questions touching Parishes Speciall and Selected Law Cases out of the Reports and year Books concerning the persons and estates of all men whatsoever 2 s. Analecta formerly called the Country Justice the sixth Edition carefully and truly corrected from the gross Errors of the former Impressions in 12 1648. 1 s. 6 d. Statuta Pacis containing all the Statutes in order of time as concern a Justice of Peace in 12. 1 s. 6 d. Kelaways Reports Fol. 8 s. The Laws Resolutions concerning Womens rights in 4 3 s. The English Lawyer by Judge Dodridge 4. Vicesimo primo Jacobt primo tertio Caroli Fol. An ancient learned Book of the Law called Britton FINIS †Sic enim Theoc'ymenem compellari facit Nam turpe id essct cum scias hominum ac Deûm Quod est eritque justa te haud cognoscere * Thucyd. l. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Likewise in the first Book the Athenians being at that time in their pride say thus to the Melians Humane reason judgeth those things just which are necessary and things possible to be done are done by the mighty and suffered by the weak †Ennius Non ex jure manu consertum sed magè ferro Rem repetunt Horatius de Achille Jura negat sibi nata nibil non arrogat armis Alius de alio Hic paceÌ„ temerataque jura relinguo †In Plutarch Lysander shewing his sword saith He that hath this in his hand best disâ—…utes of the bounds of his dominion And Caesar in the same Author Laws have no place in the time of war And Seneca saith Princes in war especially give with their eyes shut One man cannot satisfie so many armed usts nor can he at the same time act the good Man and the good General De ben lib. 4. c. 38. †Plutarch relates this saying of Pompey to the Momentines thus Will you never leave prating of the Laws to us that wear Swordâ—… Curtius lib. 9. So doth war overthrow even the Laws of Nature * Terent. Incerta haec sâ—…tu postules Ratione certa facere nihilo plus agas Quam si des operam ut cum ratione insanias * Nec natura potest justo secerâ—…re bonestum †Chrysostom on the Rom. Hom. 30. saith we men have by nature society with men What else 〈◊〉 when even the Beasts have so too See the same Father in the 1. Ch. to the Eph. where he shews that we have given unto us by nature the seeds of virtues Marc. Antoninus that Philosopher in the Throne It hath appeared that we are born for Society Is it not plain worser things are ordained for the Better and the better for one another * It is an old Proverb A Dog eats no Dogs-flesh Juven Tigris agit rabida cum Tigride pacem Parcit cognatis maculis sera Philo hath an excellent passage upon the fift Command Be you Men imitators of the mute Creatures They are taught to requite benefits c. See Porphyry de non esu animal 3. of the exceeding care of Doves about their young ones †Mar. Antonin l. 9. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And he saith One may more easily find a thing of an earthly nature
Goodness and Power So that he is able to give unto those that obey him greatest Rewards and eternal being himself eternal and may be believed willing and much the more if he hath expresly promis'd it Which we Christians convinced by undoubted testimonies do believe This is now another fountain of Law beside that natural coming from the free will of God to which that we ought to be subject our own understanding doth irrefragably dictate to us Moreover that natural Law of which we have spoken whether it be the Social or that which is more largely so called though it proceedeth from principles internal to man yet it may deservedly be asscrib'd to God because it was his will that such principles should be in us in which sense Chrysippus and the Stoicks said The Original of Law came from no other Head but Jupiter Adde that God by Laws given hath made the said principles more conspicuous even to men of Weaker minds and those impetus and passions regarding our selves and others and drawing us several ways He hath forbid to wander regulating their vehemency and keeping them in compass And the sacred Historie besides that which consists in precepts doth not a little excite that social affection by shewing that all men are descended from the same first Parents so that in this sense may be rightly said what Florentinus said in another Nature hath made us all Kinsmen Whence it follows that 't is impiety for one man to be treacherous to another Among men Parents are as it were Gods to whom therefore not an infinite but a peculiar observance is due And further being it is a point of the Law of Nature to stand to Covenants for some way of binding themselves was necessary among men nor can any other natural way be imagined from this very fountain Civil Laws have flowed For they that had joyned themselves to any Assembly or subjected themselves to Man or Men had either expresly promis'd or by the nature of the business ought to be understood to have promis'd tacitly That they would follow what either the major part of the Assembly or Those to whom power was given had constituted Wherefore what Carneades and others say That Utility is even the Mother of Justice and Equity if we speak accurately is not true For the mother of Natural Law is humane nature it self which would carry us to a desire of mutual society though we wanted nothing but the mother of Civil Law is the very obligation by consent which having its vertue from the Natural Law Nature may be call'd the Grandmother of this Law also But to Natural Law Utility is added for the Author of Nature was pleased we should be weak singly and stand in need of many things usefull to our life that we might the more vigorously embrace Society To the Civil Law Utility gave occasion for that consociation or subjection aforesaid began to be ordained for some Utilities sake And they that prescribe Laws to others are wont or ought to respect some Utility therein But as the Laws of every Common wealth respect the interest and profit of the same so between Common-wealths either all or most some Laws may have arisen from Consent and it appears they have arisen which might respect the Interest not of several Societies but of the Whole And this is that which is call'd the Law of Nations as oft as that name is distinguisht from Natural Law Which kind of Law Carneades omitted distributing all Law into Natural Law and the Civil Law of single Nations when yet being to treat of that Law which is common to Nations one with another for he added a discourse of War and things got by War he ought by all means to have mentioned the same And it is another errour of Carneades to traduce Justice by the name of Folly For as by his own confession the Citizen is not a fool who follows the Civil Law in the Common-wealth though for his reverence unto it he must omit some things profitable to himself So neither is that people foolish that value not so much their own Interest as to neglect therefore the Common Law of Nations The reason is the same in both For as a Citizen who breaks the Civil Law for his present Commodity breaks that wherein his own and his posterities perpetual benefit is contain'd Even so a people violating the Laws of Nature and Nations destroy the muniments of their own Tranquillity for the future Again though no profit were expected out of the observation of Law yet were it a point of Wisdome not of Folly to be carried unto that to which we feel our selves directed and enclined by our nature Wherefore neither is that which one hath in Plato Laws were found out through fear of receiving injury and Men are forcibly drawn to advance justice universally true For that pertains onely to those Institutes and Laws which are invented for the more facile execution of Law as Many weak of themselves that they might not be opprest of the stronger conspir'd to institute and by united force to maintain Courts of Justice that all together might prevail against those they could not match single And in this sense may that Saying be well taken Law is that which pleaseth the Stronger conceiving Law to want its external end unless it have Force to back it as Solon did very great matters joyning Might and Right together as he said himself Yet doth not Law though destitute of Force want Effect altogether for Justice brings security to the Conscience Injustice torments and tearings such as Plato describes in the breasts of Tyrants Besides the consent of honest man approves of Justice condemns Injustice And which is the greatest of all this hath God for an Enemy that for a Friend who doth so reserve his judgements after this life that he often too represents the power of them even in this life as Histories do shew by many examples Now whereas Many require not that justice in a State or Governour which they exact of private Men the Cause of that errour is first in that they consider nothing in the Law but the Profit arising thence Which is evident in single Citizens unable to defend themselves but great Cities and States seeming to contain all things in themselves which are needfull for the well supporting of life seem not to have need of that virtue that looks abroad and is called Justice But not to repeat what was said that Law was not onely provided for profits sake there is no Common-wealth so strong that may not sometime stand in need of help from without either for commerce or also for repelling the Forces of many forein Nations united together against it Whence we see the most potent States and Kings have desired Leagues all virtue whereof is taken away by those that confine Law within the bounds of a City It is most true Take away Law
unjust that he should be guiltless who slew the man-slayer This after Courts of Justice were established was upon very great reasons restrained to the Judges only yet so that some Print of the former custom was seen even after Moses Law in his right who was the next Kinsman to the person slain We have no mean Author to countenance our interpretation Abraham who being not ignorant of the Law given to Noah took arms against the four Kings not doubting but his enterprize was very reconcilable with that Law And Moses too gave order that the Amalekites violence should be withstood by Arms using the right of nature for it appears not that God was consulted with in this Moreover capitall punishments it appears were used not against man-slayers only but other Malefactors and that as well among the holy people as other nations By the aid of naturall reason having some ground to make conjecture of the divine will they proceeded from like to like and collected that the constitution against the man-slayer might extend also to other notorious and great offenders For some things there are equall unto life as reputation virginall chastity conjugall fidelity or without which life cannot be secure as reverence to authority whereby society is preserved Offenders against these seem no better than man-slayers Hither pertains an old tradition extant among the Hebrews that more Laws were given unto Noah's Sons by God but Moses did not relate them all because it was sufficient for his purpose that they were after comprehended in the peculiar Law of the Hebrews so against incestuous Marriage there was extant an old Law though not remembred by Moses in its place as appears Levit. 18. And among the Laws God gave to Noah's children this also they say was decreed that not only homicides but adulteries incests and rapes should be punished with death which is confirmed by the words of Job Also the Law given by Moses addes unto the capitall sanctions reasons that are of no less value among others then among the Hebrew people peculiarly it is said of homicide that the earth cannot be purged but by the blood-shed of the man-slayer Besides it is absurd to think the Hebrew people were allowed to secure their Government and the publick and private safety by capitall punishments and to bear Arms for their own defence but other Kings and Nations at the same time were not allowed to do so and yet were never admonisht by the Prophets for using capital punishments and making VVar as they were oft reprov'd for other sins Yea on the contrary who would not believe seeing Moses Judicial Law is an express of the divine pleasure other Nations who would take a Copy thence did well and wisely as it is probable the Greeks especially the Athenians did whence there is so great similitude in the old Attick Law and the of-spring thereof the Roman of the 12. Tables with the Hebrew Laws This is enough to shew that the Law given to Noah is not of such a sense as they would have it who impugn all VVars by that Argument XIII Of the Gospel-Law THe objections against VVar taken out of the Gospel have a greater shew in the examination whereof I will not say with many that in the Gospel beside the precepts of Faith and the Sacraments nothing else is found but what is of Natural Law for as most understand this it is not true This I willingly acknowledge in the Gospel nothing is commanded us which hath not a natural honesty and comeliness but that we are not further obliged by the Laws of Christ than we are by natural Law I cannot grant It is marvellous to see what pains they take why are in the other opinion to proove the things forbidden by the Law of Nature which by the Gospel are made unlawfull such as are concubinacy divorce prolygamy Things indeed of such nature that to abstain from them reason it self tells us is more honest and becomming Yet not such as contain in them set the divine Law aside any apparent wickedness And who can say nature hath bound us to that which the Christian Law gives in precept to lay down our lives for the brethren It is a saying of Justin Martyr To live according to nature is his duty whâ—… hath not yet attained to the Faith of Christ. Neither will I follow their conjecture who suppose Christ in his Sermon on the Mount was only an Interpreter of Moses Law These words of his so oft repeated have another sound Ye have heard that it hath been said to them of old but I say unto you Which opposition and the Syriack and other versions proove the truth of that reading to them not by them of old Those of old or the antients were no other than they that liv'd in Moses time for the commands rehearsed as spoken to the antients are not the sayings of the Lawyers but of Moses either word for word or at lest in sense Thou shalt not kill Whosoever shall kill shall be in danger of judgement Thou shalt not commit adultry Whosoever shall put away his Wife let him give her a writing of divorcement Thou shalt not forswear thy self but shalt perform unto the Lord thine oaths An eye for an eye and a tooth for a tooth understand thou mayst require in the Court of judgement Thou shalt love thy neighbour i. e. the Israelite and hate thine enemy i. e. the seven Nations to whom they might not shew friendship nor pitty to these the Amalekits are to be added against whom the Hebrews are commanded to have VVar for ever But to understand the words of Christ we must note that the Law given by Moses may be taken two ways according to what it hath common with other Laws made by men restraining the greater offences with fear of open punishments and hereby containing the Hebrew people in the state of civil society in which sense it is called the Law of a carnal Commandement and the Law of Works Or according to what is proper to the divine Law as it requires also purity of mind and some acts which may be omitted without temporall punishment in which sense it is called a spiritual Law re oycing the heart Now the Lawyers and Pharisees contenting themselves with the formâ—… part neglected the second which is the better part nor did they inculcate it into the people The truth of this appears not only in our Books but in Josephus also and the Hebrew Masters Moreover as to this second part we must know the vertues exacted at the hands of Christians are either commended or commanded to the Hebrews also but surely not commanded in the same degree and latitude as they are to Christians In both senses Christ opposes his precepts to the old ones whence it is manifest his words contain more than a naked Interpretation The knowledge whereof
Zabdas the thirtieth Bishop of Hierusalem and shewed forth an example of Christian constancy and patience memorable to all posterity which we shall relate hereafter Here it may susfice to set down that speech of theirs which with solid brevity expresseth the Duty of a Christian Souldier We offer against any enemy in the world these our hands which we think impiety to embrue with the bloud of innocent men These our hands are expert to fight against wicked men and enemies they know not how to cut in pieces pious men and those of our own Country We have not forgotten that we took up Arms for our Countrymen not against them We have alwaies fought for justice for piety for the safety of the innocent these have been hitherto the price of our perils We have fought for Faith which how shall we keep with yon they speak to the Emperour if we preserve it not with our God Basil of the more antient Christians thus The slaughters made in War our Ancestors accounted not for slaughters having them excused who draw the sword on behalf of piety and vertue XXXIV That all private War is not unlawful by natural Law THat some private War may be lawfully waged as to the Law of Nature appears sufficiently by what hath been said above when we shewed it is not repugnant to the Law of Nature to repel force by force and defend ones self from injury But haply some may think it now unlawful since the constitution of publick Courts of Justiee for although these Courts be not from nature but from humane Ordinance yet seeing it is much more honest and becomming and more conducible to mans quietness that the matter should be tryed before an indifferent Judge than that the parties themselves interessed who too often favour themselves overmuch should execute what they think right by force equity and natural reason dictate to us that it is our duty to observe so laudable an Institution Paulus the Lawyer saith It is not to be granted to the parties to do that which may be done publickly by the Magistrate lest it be an occasion of making a greater tumult And the King Theodoricus Hence it is that the reverence of the Laws was found out that nothing might be done by force nothing by ones own impulse For what difference between the clamness of Peace and the confusion of War if controversies be determined by force The Laws call it force as often as any man requireth that which he thinks due unto him not by course of Law Certainly it must be confessed the licence permitted before the constitution of Courts of Justice is much restrained since And yet since it sometimes taketh place namely where publick Justice is wanting for the Law forbidding a man to seek his own otherwise than by course of Law ought commodiously to be understood with this clause where Law and judgement may be had Now this is wanting either at the instant or for continuance at the instant as where the Judge cannot be waited for without certain peril and loss for continuance either by right or by fact By right if one be in places unpossest as on the Sea in a desert in void Islands and if there be any other places wherein there is no Government by fact if the Subjects do not acknowledge the Judge or the Judge openly hath rejected the tryal of such a cause That we have said all private War is not repugnant to natural right even since the constitution of Courts of Justice may also be made apparent from the Law given the Jews where God speaks thus by Moses If a thief be found breaking up and be smitten that he die there shall no bloud be shed from him If the Sun be risen upon him there shall be bloud shed for him Truly this Law so accurately distinguishing seems not only to induce impunity but withall to explain natural right nor seemeth it to be grounded in any peculiar divine mandate but in common equity Whence we see other Nations also have followed the same That of the 12. Tables is notable drawn no doubt from the old Attic Law If a thief steal by night and be killed he is iustly killed So by the Laws of all Nations whom we have known is he judged guiltless who hath by arms defended his life against a violent assault This so manifest consent is testimony enough that here is nothing contrary to natural right XXXV Nor by the Law Evangelical Objections proposed COncerning the more perfect voluntary divine Law that is the Evangelical there is more difficulty That God who hath more right over our lives than we have our selves might have required of us so much patience as to lay down our lives and when we are brought in danger by the assault of a private person rather choose to be killed than to kill I do not doubt But the question is whether it hath pleased him to oblige us so far or no. On the affirmative part are usually brought two places which we alleged afore upon the general question But I say unto you resist not the injurious person and Revenge not your selves dearly beloved There is a third place in those words of Christ to Peter Put up thy Sword into the sheath for they that take the Sword shall perish by the Sword Some adde unto these the example of Christ who dyed for his enemies Nor are there wanting among the old Doctors who although they disapproved not publick Wars were nevertheless of opinion that private defense was forbidden We have above set down some places of Ambrose for VVar and more of Austin and more clear known to all Yet hath the same Ambrose said And perhaps therfore the Lord said to Peter shewing two Swords It is enough intimating it was lawful until the Gospel came which instructeth us in the truth as the Law did in Justice The same Father elsewhere A Christian if he fall upon 〈◊〉 armed thief cannot strike him again that striketh lest while he defends his safety he offend against piety And Augustin hath said I do not indeed reprehend the Law which permitteth sucâ—… thieves and other violent assaulters to be slain but how to defend those the slay them I do not find And elsewhere As to killing of men lest one be killed I do not like that course unless perhaps one be a Souldier or bound by publick Office that he doth not this for himself but others having received lawful power And that Basil was of the same mind appears sufficiently out of his second Epistle to Amphilochius XXXV The lawfulness of private defense confirmed BUt the opposite opinion as it is more common so it seemeth unto us more true that an obligation is not laid upon us to be so patient For we are commanded in the Gospel to love our neighbour as our selves not above our selves yea where equal evil is imminent we are not forbidden
would p ease to make the War Thus the Rhodians answer'd Cassius when he demanded aid according to the league that they would send him aid if the Senate wou'd command Being admonisht by this example and we may meet with more let us remember not to approve of all things though deliver'd by Authors of greatest name for they often serve the times or their affections and bend the rule as occasion requires wherefore 〈◊〉 must take some pains in matters of this nature to clear the eye of our judgement and examine things thorowly and noâ—… rashly draw into example what may rather be accounted capable of excuse than worthy of our praise and imitation Wherein some fall into pernicious errours Now whereas it hath been said that publick War is not to be waged unless by his authority who hath the highest power to the understanding hereof and of that question that is about solemn War and so to many other purposes it will be necessary to understand what is that highest Power and who have it and so much the more necessary because in our age learned men every one having pursued that Argument rather according to the exigence of present affairs than according to the Truh have rendred the matter much more difficult which of it self is not very easy XL. Wherein consisteth civil Power THe moral faculty of Governing a City which is stiled by the name of civil Power is described in Dionysius Halicarnessensis by three especial notes a right of creating Magistrates a right of making and abolishing Laws a right of decreeing War and Peace elsewhere he addes a fourth Courts of justice and elsewhere the care of Religion and calling of assemblies Others express themselves otherwise But if one will make an exact partition he shall easily find all that pertains hither so that nothing may be wanting or superfluous For the Governour of a City governs it partly by himself partly by others By himself he is either conversant about universals or about singulars About Universals by making and abolishing Laws as well about sacred so far as the care of them belongs unto the City as about civil affairs This art is call'd by Aristotle architectal The singulars about which he is conversant are either directly publick or private yet in order to the publick Directly publick are Actions as of Peace War Leagues or Things as Tributes and the like Wherein is comprehended also that eminent Dominion which the City hath over the Citizens and their estates for the publick use The Art about these is exprest in Aristotle by the general name political or civil and is also called the Art of consultation Private things are such as are controverted between party and party which it concerns the publick quiet to be determined by publick authority And this Art is by Aristotle termed judicial The things done by another are dispatched either by Magistrates or by other procurators to which number Embassadors are to be referred And in these particulars consisteth the civil power XLI What Power is Highest THat is call'd the Highest Power whose acts are not under the right of another so as to be made void at the pleasure of another humane will When I say of another I exclude him who enjoyeth the highest Power who may change his own will as also his Successor who enjoyeth the same right and therefore hath the very same power Let us now see in what subject this highest power is There is a common subject and a proper subject as the common subject of sight is the body the proper is the eye so the common subject of the highest Power is a City that is a perfect society We exclude therefore people or Countries that have yielded up themselves or fallen to the dominion of another people such as were the Provinces of the Romans for these are not by themselves a City as now we take the word but less worthy members of some great City as servants are members of the family Again it comes to pass that several Nations or Countries have one and the same head which do nevertheless every one make up a perfect society by themselves for it is not in the moral body as in the natural in the natural one cannot be the head of several bodies but in the moral the same person considered in a divers relation may be the head of bodies many and distinct Wherof this is a certain Argument that the Royal Family being exstinct the Empire returns to every people severally So also it may happen that more Cities may be confederated one with another by a most close league and make certain System as Strabo uses to speak and yet not any one of them ceases 〈◊〉 retain the State of a perfect City which is noted both by others and by Aristotle in more places than one 〈◊〉 then let a City so understood as we havâ—… said be the common subject of the highest Power the proper subject is a person one or more according to the 〈◊〉 and customs of every Nation XLII That the highest Power is 〈◊〉 alwaies in the people HEre is first to be rejected their opinion who will have the highest Power every where and without exception to be in the people so 〈◊〉 they may restrain and punish Kings as oft as they use their power amiss which opinion how many mischiefs 〈◊〉 hath occasion'd and may yet produce if it be throughly enâ—…rtain every wise man sees We oppose these Arguments against it It is lawful for 〈◊〉 every man to addict and yield himself into private servitude to whom he pleaseth as appears both out of the Hebrew Law and the Roman Why then may not any people being at their own dispose give up themselves to one or more so as to transcribe the right of governing them wholy to their Ruler no part of that right retained or reserved to themselves Nor may you say that cannot be presumed for we do not here enquire what may be presumed in a doubtful case but what may be done in point of right 〈◊〉 vain also are here alleged the incommodities that follow or are possible for what kind of Government soever you shall frame in your mind you will never exclude all incommodities or hazards You must be content in every way to take the good and evill one among another Now as there are many courses of life one more excellent than another and every man is at liberty among many to choose which he doth most affect so may any people also make choice of what form of government they please neither is the right to be measured by the excellency of this or that form for divers men have divers judgements hereof but by their will And indeed there may arise many causes why the people may abdicate from themselves the whole right of commanding and give it to another viz. because being brought into danger of their life they can find no
of a Family who 〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government shall not thereby cease to have so far as may be in a Family supreme right therein Nor is the Husband deprived of marital power because of some promise to the Wise. I confess by this means the Empire is in some sort streightned whether the obligation ly upon the exercise of the act only or also directly upon the faculty it self In the first way the act done against promise will be unjust because as we shew elsewhere a true promise gives hima right to whom 't is made and in the other way it will be null by want of faculty Nor yet doth it thence follow that he that makes the promise hath any superiour for in this case the act is rendred null not by superiour force but in Law Amongst the Persians the King was Supreme and absolute adored as the Image of God and as Justin saith he was not changed but by death A King was he that to the Peers of Persia spake thus I have called you together that I might not seem to use only my own Counsel but remember it is your duty rather to obey than perswade Yet he took an oath at his entrance as Xenophon and Diodorus Siculus have noted and it was not lawful for him to change certain Laws made after a particular form The same is related of the Ethiopian Kings by Diodorus Siculus And by his relation the Egyptian Kings who no doubt as well as other Kings of the East had Supreme power were bound to the observation of many things but if they had done the contrary could not be accused living dead their memory was accused and being condemned they wanted solemn burial as also the bodies of the Hebrew Kings who had reigned ill were not buried in the royal Sepulchers an excellent temperament whereby both the highest power was kept sacred and yet by fear of a future judgement Kings were kept from breaking their trust That the Kings also of Epirus were wont to swear they would reign according to the Laws we learn of Plutarch in the life of Pyrrhus But suppose it be added If the King breaks his trust he shall be depâ—…sed Yet will not the power hereby cease to be the highest but the mannâ—… of holding it weakned by this condition and the Empire will be as it were temporary It is said of the King of Sabaeans that he was absolute and of a most free power but that he might be stoned if he went out of his Palace In like manner an estate of Land that is held in trust is an estate as well as if it were possessed in full dominion but it is holden for a time or at the pleasure of another And such a Commissory Law or condition may be annexed not only in the bestowing of a Kingdom but in other contracts for some Leagues too with neighbours we see are entred with the like sanction LII The fourth Observation FOurthly it must be noted Although the highest power be one and undivided by it self consisting of the parts above set down supremacy being added Yet may it sometimes happen to be divided either by parts which they call potential or by parts subjective So when the Roman Empire was one it often came to pass that one Ruler had the East another the West or that three divided the world between them And so it may be that a people choosing a King may reserve some acts to themselves and may commit others to the King with full right Yet is not that done as we have shewed already whensoever the King is bound up with certain promises but then we must conceive it to be done if either a partition be made expresly of which we have spoken afore or if a people yet free lay upon their future Kings a charge by way of an abiding precept or if a clause be added to signifie that the King may be compeld or punisht For a precept is from a superiour superiour at least in that particular which is given in precept and to compell is not alwaies the property of a superiour for also naturally every one hath a right to compel his debtor but is repugnant to the nature of an inferiour Parity therefore at least follows from coaction and so a division of the supremacy Against such a State as being double headed many allege many incommodities but as we have also said above in civil affairs there is nothing wholy without incommodities and Right is to be measured not by that which seems best to you or me but by the will of him whence right ariseth An antient example is brought by Plaâ—… in his third de legibus For when the House of Hercules had built Argâ—… Messena and Lacedemon the King were bound to keep their Governmenâ—… within the bound of prescribed Laws anâ—… whilst they did so the people were obliged to leave the Kingdom to them and their posterity and suffer none to take it from them And to this not only King and their own people have mutually 〈◊〉 venanted but Kings with other Kings and one people with another people and Kings with neighbourig States and States with neighbouring Kings have entred into Covenant and promis'd aid to 〈◊〉 other respectively LIII A further explication of the last note about division of power and mixture YEt are they much deceived who think the power of Kings divided when they will have some of their acts not accounted firm unless they be approved by the Senate or some such Assembly For the acts voided for want of such approbation must be understood to be cancelled by the Kings own command who ordained this by way of caution lest any thing fallaciously gained from him should pass under the notion of his true and deliberate will King Antiochus the third sent such a â—…escript to the Magistrates that they â—…hould not obey him in case he should command any thing against Law and Constantin published the like that Orphans and Widows be not constreined to come to the Emperours Court for Justice no not if the Emperours rescript â—…e shewed Wherefore this case is like to that of testaments which have a clause that no later testament shall be of force for this clause also makes it be presumed that the later testament proceeds not from the true will of the maker Nevertheless as this clause so that other by the Kings express command and special signification of his later will may be annulled Again I do not here use the authority of Polybius neither who refers the Roman Common-wealth to a mixt kind of Government which at that time if we respect not the doings themselves but the right of doing was meerly popular For both the authority of the Senate which he refers to an Optimacy and of the Consuls whom he will have to be like Kings was
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
13. Serve the Babylonians 445 1 Cor. 9. 7. Who goeth to war 462 Act. 5. 9. Obey God rather 463 Deut. 17. The witnesses stone 470 Matt. 13. 29. Suffer the tares 479 Lu. 24. 28. He made as though 488 Act. 16. 3. Paul circumcised Timothy ibid. Jos. 8. Feigned flight 489 Col. 3. 9. Ly not one to another 490 Mat. 12. 36. Vain speech forbidden 504 Deut. 2. 24. Children and women slain 540 Deut. 7. 5. Abolish Idols 555 Deut. 20. 14. Spoil of enemies 559 Deut. 23. 15. Refuge for servants 570 Esay 58. 5. Restitution 578 Deut. 20. 14. Children and women spared 589 2 King 6. 22. Wouldst thou smite 595 2 King 3. 19. Trees of the Moabites cut up 607 Coll. 4. 1. Masters give unto your servants that which is just 623 Ephes. 6. To forbear threatning ibid. Exod. 21. 26. 27. Liberty due to a servant for a tooth injuriously struck-out 625 Exod. 23. 12. Work to be exacted of servants moderatly ibid. Deut. 15. 13. Servants after a certain time to be manumitted and not without gifts 628 Gen. 14. 16. He brought back all the goods 643 Gen. 14. 21. Give me the Persons and take the goods to thy self ibid. Luke 3. 14. Do violence to no man 645 Rom. 12. 18. As far as is possible and as much as in us lieth we must have peace with all men 659 An Alphabetical Table of the principal Matters A ABsolute Kings 113 Absolution 241 Accusations 338 Acquisition 558 Accidents of War 442 Acts internal 340 Admonitions 434. 575 Adherents 526 Adjutors 170 Agreements 269 Agrippa 28 Aid 257 Alienation 105. 109 Aliens 246 Amalekites 23 Ambition 422 Antiens 56 Antonius 82 Appâ—…ehension 513 Apostolical Canons 63 Apostates 62 Arguments from Moses Law 10 Army 106 Arms. 171 Arms of Subject 472 Arians 377 Arbitrators 429 Assignation 205 Associates 131 Authority 77. 92 Authors 82 B BArclaius 151 Barbarians 255. 356. 414 Benefit 421 Benignity 41 Bishops 60 Brasidas 263 Burial 293 C CAuses of War 173. 407 Cauchi commended 412 Carolus Molinaeus 187 Cain 18 Capital punishments 30 Caius Caesar. 80 Carthage 269 Campanians 88 Captives 541. 567. 594 Charity 453. 478 Christ. 46 Christ's actions 75 Christ's Precepts 24 Christ against swearing 242 Christ's Kingdom 418 Christian goodness 60 Christian Religion 370 Christian Soldier 65 Church-Empire 417 Chief of a league 129 Children 404. 589 Chastity 181 Civil power 83 Cities given 107 Civil War 277 Clients 125 Clemency 346. 438 Clergy 63 Commonwealth 141 Communion 199 Compromise 428 Community 394 Communication 396 Conversion of the Jews 38 Contumely 42 Constantine 58 Conjecture 262 Contracts 292 Controversies 127 Confederates 127. 257 455 Conference 427 Cornelius 33 Courts of justice 67 Covarruvias 186 Crimes 35 Cunning. 484 D DAnger 80. 210 David 152 Damages 274 Defense private 70 Defensive Arms. 152. 177 196 Desert places 218 Dead 300 Delinquent 318 Desertors 340 Deceit 491 Debts 511 Denouncing of War 527 Divorce 41 Dictators 93 Division of supreme power 115 Disgrace 185 Distinctions 263 Dissimulation 485 Dominion 198 Doubts 423 Duty 65 Duell 195 Due 421 E EAster 60 Edessa 28 Effects 534 Efficients 170 Election 101 Empire 29 Empire of One. 89 Empire over the Conquered 572 Embassadors 280 Embassages 276 Emperor universal 415 Ends of punishment 312 Enemies 301. 480 Equity 78 Errors in Religion 375 Evangelical Law 44. 192 252. 328. Evils of War 449 Examples of antient Christians 144 F FAthers 50 False Gods 234 Faith 245 Fals-speaking 497 Feudal obligation 132 Fear 196. 411 Fights needless 601 Force 67. 162 Form of Government 87 Foreiners 277 Fraud 505 Friends 455 Fruit-trees 606 Fugitive 508 Fulness of Power 109 G GArrison 543 Giving 73 God 45. 362 Gods mercy 334 Gods right 69. 479 Goods defended 188 Goods taken 562 Goods of Subjects 509 Gospel-Law 22 Government 95. 140 Guile 483 484 Guardian 40. 96 H HAbitation 218 Hebrew Common wealth 32 Hebrew-Law 8. 10. 246 Hebrew Kings 118 Heir 238 Herald 285 Hercules 353 Hereticks 375 History Ecclesiastical 58 Highest Powers 77. 85 Hostages 542. 601 Human infirmity 342 Husbandmen spared 589 I IEst 501 Iews 153 Iewish soldiers 29 Ignorance 357 Impunity 193. 339. 535 Impost 215 Injury 39. 177 Inferiour powers 79. 147 Invader 165 Instruments 171 Infidels 253 Interpretation 259 Informer 338 Ingratitude 343 Innocent person 451 Infants 538 John Baptist. 29 Joshua's Oath 226 Joseph 500 Irreligion punished 367. 379 Justice 31. 174. 576 Judicial Law 31 Julianus Imp. 65 Judge 67. 338 Judgments 323 Judgment 424 Just on both sides 432 K KIlling 74. 166. 185 430. 581 King 89. 91 Kings subject to God 96. 119 Kings person sacred 154 Kings right 138 King expelled 272 Kingdoms given 109 L LAw 2. 141 Law natural 2. 214 352 Law of Nations 5. 320 516. 562 Law Evangelical 328 Law Mosaical 8. 333 Law human 6 Law divine 7 Law Civil 193. 206. 516 Law of war 561 Lawful 531 Lamech 19 Lands taken 562 Land new found 413 Leagues 246 247 Life 69. 71 Liberty 444 Liberty personal civil 104 Love of enemies 43 Lots 430 Lye 486 487 M MAgistrate 77. 79 Majesty 103 Maccabees 152 Matrimony 245 Malefactors 302 Maâ—…chees 377 Member 181 Merchandise 215 Messias 30 Military orders 53 Military Oath 59 Mixt government 117. 121 Moderation 581. 604 Moses 20 Monuments 296 Mutual subjection 98 Murtherers 547 Multitude spared 601 N NAvigation 217 Necessity 78. 149 207. 448. 476 Neighbour 44 Neighbour's power 197 Nicene Council 60 Notions 363 O OAth of Kings 113 Oaths 220. 504 Obedience 143. 157. 467 Obligation 32. 239 Obstinate resistance 599 Occupation 205 Offenses 350 Offenses against God 358 Offenders yielded up 385 Old men spared 589 Opinion 379 Ordinance 27 P PAul 34 Patience 40. 156 Pardon 45. 344 436 Parents 143 Passage 212 Pay 261 Partakers 380. 392 Permissions 32 Penitents 63 Peace 444. 448 Peace of the Church 65 Peril 71 Peter 74. 498 People 86. 93. 98 Perfidious 238 Penal Law 344 Persecution 373 Piety 368 Pity 331 Powers 47 Possession 170 Poyson 544. 545 Progress in infinitum 96 Principality 100 Princes 101 Propriety 102. 198 Precarious right 103 Protectorship 110 Protection 126 Promise of Rulers 112 Promising words 504 Principles of religion 362 Providence 365 Prophecies 420 Prest-soldiers 463. 471 Proclaming of war 522 Prey 560 Publick person 183 Punishment 309. 400 Pyrate 236 Q QUarrel 180 R RAvishing 551 Revenge 39. 69. 73. 314 Retaliation 42. 289. 598 Resistance 73. 139. 162 Recuperators 127 Religion 157. 360 Restitution 197. 210 Reward 273 Reprizals 414 Repentance 331. 335 Relaxation of Law 349 Receivers 384 Remission of punishment 438 Rituals 32 Right 134. 477 River 211 Right remitted 434 Royal family 85 Robbers 274 Romans 357 Ruler 142. 155 Rules of interpretation 264 Rules of prudence 442 S SAnctuary 60 Saguntines 81. 266 Sanedrin 119 Sacrilege 304. 403 Satisfaction 325 Sacred things 554 Scripture 375 Scythians 244 Sergius Paulus 28. 34 Scholars spared 589 Servants 88 Self defense 17. 182. 195 Sea common 204 Sense of an