conduces both to our present matter and to many other things lest we strein the Authority of the Hebrew Law beyond its reach XIV That War is not against the Gospel-Law The first Argument OMitting Arguments of less value in our judgement our first and principal proof that the Right of VVar is not wholy taken away by the Law of Christ shall be that of Paul to Timothy I exhort therefore that first of all supplications prayers intercessions and giving of thanks be made for all men For Kings and for all that are in authority that we may lead a quiet and a peaceable life in all godliness and honesty For this is good and acceptable in the sight of God our Saviour who will have all men to be saved and to come unto the knowledge of the truth Here we are taught three things That it is pleasing to God Kings should become Christistians That being made Christians they should remain Kings Wee pray saith Justin Martyr that Kings and Princes together with their regal power may also attain unto a right understanding and in the Book entitled Clement's Constitutions the Church prays for Christian Magistrates Lastly that this is also pleasing to God that Christian Kings should procure for other Christians a quiet life How so The Apostle sheweth in another place He is the Minister of God to thee for good but if thou do that which is evill be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evill By the right of the sword is understood all coercive power as in the Lawyers sometimes yet so that the highest part of it which is the true use of the sword is not excluded For the illustration of this place much light may be had from the second Psalm which although it were verified of David yet more fully and perfectly pertains to Christ as we learn out of the Acts and the Epistle to the Hebrews Now this Psalm exhorts all Kings to receive the Son of God with reverence i. e. to do service to him as they are Kings as Augustin explains it well whose words are to this effect Herein do Kings as they are commanded serve God as Kings if in their Kingdom they command good things forbid evill things not only pertaining to humane society but also to divine Religion And elsewhere How then shall Kings serve the Lord in fear but by prohibiting with religious severity and punishing offences against the commands of the Lord For he serveth one way as a man another way as a King Again Herein therefore doe Kings serve the Lord as Kings when they do him that service which none can do but Kings XV. The second Argument A Second Argument is deliver'd us by St. Paul in the place cited already in some part out of the Epistle to the Romans where the highest power such as the regall is is said to be of God and is called the ordinance of God whence it is inferr'd that obedience and honour is to be given to it and that from the heart and he that resisteth it resisteth God If by Ordinance a thing were to be understood which God only will not hinder as in vicious acts then would there follow thence no obligation either of honour or obedience especially laid upon the conscience nor would the Apostle say any thing where he so much extols and commends this power which might not agree to robbing and stealing It follows therefore that this power be conceiv'd to be ordained by the will of God approoving it whence it further follows that seeing God wills not contraries this power is not repugnant to the will of God revealed by the Gospel and obâ—…iging all men Nor is this Argument avovded because the persons that were in power when Paul wrote are said to have been enemies to Christian piety For first that is not true of all Sergius Paulus Propraetor of Cyprus had given his name to Christ before this time to say nothing of the King of Edessa of whom there is an old tradition grounded as it seems on truth though perhaps a little mixed with fables Moreover the question is not of the persons whether they were impious but whether that function in them were impious we say the Apostle denys that when he saith the function even for that time was ordained of God and therefore to be honoured even within the recesses and secrets of the heart where God alone hath Empire Wherefore both Nero might and that King Agrippa too whom Paul so seriously invites to his Religion might subject himself to Christ and retain the one his regal the other his imperial power a power which without the right of the Sword and of Arms cannot be understood As then of old the Sacrifices according to the Law were pious although administred by impious Priests so Empire is a pious thing although it be in the hand of an impious Prince XVI The third Argument THe third Argument is from the words of John the Baptist who being seriously asked by the Jewish Souldiers many thousands of that Nation served the Romans in their Wars as Josephus and other writers cleerly tell us what they should do to avoid the wrath of God He answered not that they should forsake VVar as he must have answered if that be the will of God but abstain from violence and falshood and be content with their wages To these words of the Baptist containing an approbation of VVar plain enough many answer The Baptists prescripts are so different from the precepts of Christ that we may conceive their Doctrine not to be the same Which I cannot admit for these reasons John and Christ use the same beginning and declare the sum of their doctrine in the same words Amend your lives for the kingdom of Heaven is at hand Christ himself saith the Kingdom of Heaven i. e. the new Law for the Hebrews use to stile the Law by the name of Kingdom began to be invaded from the days of the Baptist. John is said to have preached the Baptism of repentance for the remission oâ—… sins just as the Apostles are said to have done in the name of Christ. Joâ—… requires fruits meet for repentance and threatens destruction to them that bring not forth such fruit He requires works of Love above the Law The Law is saiâ—… to have continued unto John as if 〈◊〉 more perfect doctrine had from him begun And the beginning of the Gospell is deduc'd from John John himself is therefore greater than the Prophets being seâ—… to give saving knowledge to the people and to Preach the Gospell Nor doth 〈◊〉 any where distinguish Jesus from himseâ—… by the difference of precepts only thâ—… things delivered by John more geneâ—…ly and confusedly and in the mannâ—… of rudiments are more plainly and fully declared by Christ the true light but
subject to the people The same may be said concerning other writers of the Politicks who conceive it more agreeable to their design to behold rather the external appearance and daily administration of affairs than to weigh the right itself of the highest power LIV. True examples of the supreme power divided MOre pertinent is that which Aristotle hath written Between 〈◊〉 full Kingdom and a Laconical which is a meer principality some other species are interjected An example hereof as I suppose may be found in the Hebrew Kings for of these that they ruled in most things by the highest right I think it is impiety to doubt for the people desired such a King as their neighbours had but the Nations of the East were subject to their Kings in the most humble way And above we have noted that the whole Hebrew people was under the King And Samuel describing the right of Kings sufficiently shews that the people have no power left in themselves against the Kings injuries Which the Fathers do rightly gather from that of the Psalm Against thee only have I sinned Upon which place Hierom Because he was a King and feared not another And Ambrose Being a King he was in danger of no Laws because Kings are free from such bonds neither do any Laws bind them over to punishment being secured by their Soveraign power against man therefore he sinned not to whose restraint he was not obnoxious I see there is consent among the Hebrews that stripes were inflicted on the King offending against those written Laws exstant about the Kings office but those stripes among them had no insamy and they were of his own accord received by the King in token of repentance and therefore he was not beaten by an Officer but by one whom he was pleased to make choice of and at his own pleasure he was eased As to coactive punishments the Kings were so free from them that even the Law of excalceation as having in it something ignominious was not of force upon them The Hebrew Barnachmon hath a sentence exstant amongst the sayings of the Rabbins in the title of Judges No creature judgeth the King but the blessed God These things being so neverthelels I think some causes were exempted from the Kings judgement and remained in the power of the Synedry of LXX instituted by Moses at Gods command and by perpetual succession continued to the times of Herod Therefore both Moses and David call Judges Gods and judgements are called the judgements of God and Judges are said to judge not in the place of man but of God 〈◊〉 the matters of God are plainly distinguisht from the matters of the King where by the matters of God the mosâ—… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉 Gods Law The King of the Jews 〈◊〉 deny not exercised by himself certain capital judgements in which particulae Matmonides prefers him before the King of Israel which also is evinced by examples not a few both in the sacred Scripture and in the writings of the Hebrews Yet certain kinds of causes seem noâ—… permitted to the Kings cognizance viz. of the Tribe of the high Priest of the Prophet And hereof there is an argument in the history of the Prophet Jeremy whom when the Princes required unto death the King answered Behold he is in your power for the King can do nothing against you to wit in this kind of matters Yea and the person that for any other cause was impeached before the Synedry could not by the King be exempted from their judgement Therefore Hircanus when by power he could not hinder their judgement concerning Horod eluded the same by Art In Macedonia they that descended from Calanus as Calisthones in Arrian saith bare rule over that people not by force but by Law The Macedonians saith Curtius are accustomed to the Regal government yet are in a greater shadow of liberty than other nations For even the judgment of life and death was not in the Kings hand Of Capital matters saith the same Curtius by the old custome of the Macedonians the Army did enquire in time of Peace the Commons the power of the Kings prevailed no further than their authority could move There is in another place of the same Author another token of this mixture The Macedonians decreed according to the custome of their nation that the King should not hunt on foot without the attendance of his elect Princes or courtiers Tacitus relates of the Gothones They are now in greater vassalage under their Kings than other Germans nor are they yet depriv'd of all liberty For he had afore describ'd the principality by the authority of perswading not by the power of Commanding and after he expresseth a full Royalty in these words One commandeth without all exceptions not by a precarious right of governing Eustathius upon the sixt of the Odysses where the Commonwealth of the Phaeaces is described saith it had a mixture of Power of the King and of the States Something like it I observe in the times of the Roman Kings for then all matters almost went through the Royal hand Romulus reigned over us as he pleased saith Tacitus It is manifest at the beginning of the City Kings had all power saith Pomponius yet Halicarnassensis will have something excepted by the people even at that time But if we give more credit to the Roman Authors in some causes there lay an appeal from the Kings to the people as Senocâ—… hath noted out of Cicero's books de Republica out of the Pontifical books also and Fenestella shortly after Servius Tullus advanced to the Throne not so much by right as by the favourable breath of the people yet more abated the regal power For as Tacitus speaketh he establisht Laws which even the Kings themselves were to obey The less cause have we to wonder at that which Livy saith The power of the first Consuls differd from the regal in little more than that 't was annual Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm and in the first times of the Consuls For in certain affairs and those of the greatest moment the will of the people was a law if the Fathers would go before them with their authority and as it were prepare the bill which authority afterward the peoples power encreased was onely for a shew when the Fathers as Livy and Dionysius note began with their voices but the Assembly did what they pleased For all this in after times there remained somewhat of a mixture whilst as the same Livy speaketh the Government was in the hand if the Patricians that is of the Senate but the Tribunes that is the Plebeians had a share to wit a right of forbidding or interceding And so Isocrates will have the Athenian Commonwealth in Solon's time to have been an
necessity requires it For laws are wont and so they ought to be made by men with sense of humane imbecillity Now the law of which we speak seemes to depend upon their will whâ—… first consociate themselves into civill society from whom thenceforth a right flowes and comes unto the Rulers And these if they were asked whether their will was to impose upon all this burden to dy rather than in any case to repell by force the force of their superiours I know not whether they would answer it was their will unless perhaps with this additament if resistance cannot be made without very great perturbation of the Commonwealth or the destruction of very many innocent persons For what in such a circumstance charity would commend may be also I doubt not deduced into a humane Law One may say that rigid obligation to dy rather than ever to repell any injury of superiours proceedeth not from humane law but from divine But we must note Men at first not by divine precept but drawn of their own accord upon experience of the infirmity of divided families to defend themselves against violence closed together in the bond of civill society whence civill power hath its spring which therefore Peter calls a humane ordinance though elsewhere too it is called a Divine ordinance because God approved this wholsome institution of man But God approving humane law is supposed to approve it as humane and in a humane manner Barclay the most stour defender of Regall Power descendeth yet so farr as to grant the people and an eminent part thereof a right of defending themselves against immane cruelty when yet the same Author acknowledgeth the whole people to be subject to the King I do easily conceive the more value that is of which is conserved the more equity it is which give us an exception against the words of of the Law nevertheless indistinctly to condemn either single persons or a leâ—… part of the people which heretofore hath used the last safeguard of necessity so as to have respect in the mean time to the common good I scarce dare For David who except a few acts hath testimony of a life exactly conformed to the laws had about him armed men first four hundred and then a greater number to what purpose but to keep off violence if it should be offered But withall this is to be noted David did not this till after he had found both by Jonathan's discovery and by very many other most certain arguments that Saul sought after his life And then neither invades he Cities nor takes occasions of fighting but retreats and hides himself sometimes in the wilderness sometimes amongst other people and hath a religious care never to hurt his own Country Parallel to this may seem the action of the Maccabees For that some defend their arms upon this title as if Antiochus had not been King but an Invader I think it vain when the Maccabees and their followers in all the history never call Antiochus by any other but the name of King and rightly when long before the Hebrewes had acknowledged the Macedonian Power into whose right Antiochus succeeded As for that prohibition to set an alien over the people that Law is to be understood of voluntary election not of what the people was compeld to do drawn by necessity of the times And for that which others say that the Maccabees used the right of a people who had liberty to live by their own laws it is not firm neither for the Jews subdued first to Nebuchodonosor by the law of war by the same law were subject to the successors of the Chaldaeans the Medes and Persians all whose Empire devolved to the Macedonians Hence are the Jewes call'd by Tacitus The most vile part of those that serve while the East was in the power of the Assyrians Medes and Persians Nor did they covenant for any thing with Alexander and his successors but without any condition came under their dominion as before they had been under Darius But if the Jews were sometimes permitted to have open exercise of their Rites and Laws this was a precarious right arising from the favour of the Kings not from any law or condition annexed to the Government There is nothing therefore that can clear the Maccabees besides extreme and most certain danger to wit so long as they conteind themselves within termes of selâ—… defense so as to retire into devious places after David's example to secure themselves and not to enter into battaâ—… but when they were assaulted LXIX The King's Person Sacred MEan while this caution is to be observed even in such a danger the person of the King must be spared which they that think David did not out of any necessity of duty but out of some higher design are much mistaken For David himself plainly said No man can lay hands upon the King and be innocent Well he knew 't was written in the law Thou shalt not revile the Gods that is the highest Judges nor curse the Ruler of thy people In which law the speciall mention made of the eminent powers evidently shewes something speciall to be commanded Wherefore Optatus speaking of this fact of David saith He was hindred by a full remembrance of the divine commands And he puts these words into Davids mouth I was willing to orecome my enemy but that I chose rather to keep the Command of my God Now for evill words that are false it is not lawfull to cast them at a private person against a King therefore we must not use them when they are true For as the Writer of the Problems which bear Aristotles name affirmeth He that reproacheth the Ruler is injurious to the City And if the Ruler must not be offended with the tongue much less certainly with the hand whence we also read that David's heart smote him for violating the garment of the King so much did he apprehend the sanctitude of his person And not without cause For sith the highest power cannot but ly open to the hatred of many the Rulers person was with a peculiar fense to be secur'd The Romans made a Constitution that the Tribunes of the common people should be inviolable The Essenes had a saying that Kings are to be accounted sacred It is in Curtius that the nations which are under Kings reverence their Kings as Gods And Artabanus the Persian saith Amongst our many good Laws this is the best that the King is to be reverenced and adored as the Image of God the Saviour of all LXX Of Christian subjection T Is a greater question whether so much as was lawfull for David and lawfull for the Maccabees be allowed unto Christians whose Master so often commanding his disciples to undertake the cross seems to require a patience more exact Certainly where Superiours threaten Christians with death for religion sake Christ gives them
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
of their own power Yet properly when a people is alienated the men themselves are not alienated but the perpetual right of governing them as they are a people So when the freed servant of a Patron is assigned to one of his children it is not the alienation of a freeman but he transcribes and makes away the right he had over another man Nor is that more firm which they say If a King hath gotten any people by War whereas he subdued them not without the bloud and sweat of his subjects they are rather to be taken for the acquest of the Subjects than of the King For haply the King maintain'd his Army out of his own private substance or out of the profits of that Patrimony which follows his principality for suppose a King hath but the usufruit of that very Patrimony as also of the right of governing the people which hath elected him yet are those fruits his own As it is declared in the civil Law that the fruits of an inheritance which is commanded to be restored are not restored because they arise not from the inheritance but from the Thing Wherefore it may come to pass that a King may have command over some people by a proper right so that he may also alienate them Strabo saith the Island Cythera lying over against Taenarus was by his own private right pertaining to Eurycles Prince of the Lacedemonians So King Salomon gave to Hirom King of the Phenicians twenty Cities not of the Cities of the Hebrews for Cabul which name is attributed to those Cities is seated without the Hebrew bounds Jos. 19. 27. but of those Cities which the conquered Nations enemies of the Hebrews had retained till that day and which partly the King of Egypt Salomon's father-in-Father-in-Law had overcome and given as a dowry to him partly Salomon himself had taken in for that they were not inhabited by the Israelites at that time is proved by this argument because after Hirom restored them then at last Salomon carried thither Colonies of the Hebrews So Hercules is read to have given to Tyndareus the Empire of Sparta taken in War upon these terms that if Hercules should leave any children it should be returned to them Amphipolis was given as a dowry to Acamas the Son of Theseus And in Homer Agamemnon promiseth to give Achilles seven Cities King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Justin saith of Darius He gave by Testament the Kingdom to Artaxerxes to Cyrus certain Cities whereof he was Governour So the successors of Alexander are to be thought every one for his part to have succeeded into that full right and propriety of ruling over the Nations which were subject to the Persians or else themselves to have acquired that power by the right of Victory Wherefore it is no marvell if they assumed to themselves a right of alienation So when King Attalus the Son of Eumenes had by his testament made the people of Rome heir of his Goods the people of Rome under the name of Goods comprehended his Kingdom too And after when Nicomedes King of Bithynia dying had made the Roman people Heir the Kingdom was reduced into the form of a Province XLIX Some highest Empires are not holden fully BUt in Kingdoms which are conferred by the will of the people I grant it is not to be presumed that it was the will of the people that an alienation of his Empire should be permitted to the King Wherefore what Crantzius notes in Unguinus as a new thing that he had bequeathed Norway by his testament we have no reason to disapprove if he respecteth the manners of the Germans among whom Kingdoms were not held with so full a right For wheras Charls the Great and Lewis the pious and others after them even among the Vandals and Hungarians have disposed of Kingdoms in their testaments that had rather the vertue of a commendation among the people than the force of a true alienation And of Charls Ado specifies the same that he desired his testament should be confirmed by the chiefest of France Whereunto that is like which we read in Livie that Philip King of Macedonia when he had a mind to keep Perscus from the Kingdom and in his place to advance Antigonus his Brothers Son visiteâ—… the Cities of Macedonia to commenâ—… Antigonus to the Princes Nor is 〈◊〉 material that the forementioned Lewâ—… is read to have rendred the City Rome to Pope Paschal seeing the Franks mighâ—… rightly render to the people of Rome that power over the City which they had received from the same people 〈◊〉 which people he did sustein as it Weâ—… the person who was Prince of the first order L. A further manifestation of the second caution THe truth of our foresaid note about distinguishing the height of power from the fulness of having it will appear in this that as many highest Empires are not so many not highest are held fully Whence it is that Marquessates and Earldoms are wont to be sold and disposed of by will more easily than Kingdoms Moreover the same distinction shews it self in the Protectorship whilst a King either by non-age or by disease is unable to manage his own power For in Kingdoms that are not Patrimonial the Protectorship belongs to them to whom the Publick Law or in defect thereof the consent of the people doth commend it in Patrimonial Kingdoms to them who are chosen by the Father or by the next of Kin. So we see in the Kingdom of the Epirots which arose from the peoples consent Aribas a Pupil-King had Tutors publikely appointed him and so had the posthume Son of Alexander the Great by the Macedonian Peers But in the lesser Asia gotten by War King Eumenes appointed his Brother to be Tutor to his Son Attalus So Hiero the Father reigning in Sicily ordained by his testament whom he pleased to be Tutors to his Son Hierom. Now whether a King be withall in his private right a Lord of Land as the King of Egypt was after the time of Joseph and the Indian Kings which Diodorus and Strabo speak of or be not this is extrinsecal to his Empire and perteins not to the nature of it wherefore it neither maketh another kind of Empire nor another manner of holding the same Empire LI. A third Observation LEt this be observed in the third place An Empire ceaseth not to be supreme although hee that is to rule promise certain things to the subjects or to God even suâ—… things as pertain to the way of ruling Nor do I now speak of keeping the natural and divine Law adde also that of Nations unto which all Kings are bound though they promised nothing but of certain rules to which without a promise they were not bound The truth of what I say appears by silimitude of a Father
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
the second For as an Infant King hath right but cannot exercise his power so also one of an alienated mind and in captivity and that lives in the territory of another so that freedome of action about his distant Empire is not permitted him for in all these cases Curators or Vicegerents are to be given Therfore Demetrius when being in the power of Saleucus he was under some restraint forbad any credit to be had either to his seal or letters but appointed all things to be administred as if he had been dead LXI Of the war of Subjects against their Superiors The question stated WAr may be waged both by private men against private as by a traveller against a robber and by those that have the highest power against those that have it likewise as by David against the King of the Ammonites and by private men against those that have the highest power but not over them as by Abraham against the King of Babylon and his neighbors and by those that have the highest power over private men either subject to them as by David upon the part of Isboseth or not subject as by the Romans against the pirats Only the question is whether it be lawfull for private or for publique persons to make war upon them under whose power whether supreme or subordinate they are And first that is beyond all controversy Armes may be taken against inferiors by those who are armed by authority of the Highest power as Nehemias was armed by the Edict of Artaxerxers against the neighboring Governours So the Roman Emperors grant leave to the Lord of the soil to force away the Camp-measurers But it is inquir'd what is lawful against the Highest Power or the Lower Powers doing what they doe by authority of the Highest That 's without controversy amongst all good men If they command any thing contrary to naturall right or to the divine precepts what they command is not to be done For the Apostles when they said we must obey God rather than men appealed to a most certain rule written in all mens minds which you may finde almost in the same words in Plato but if for any such cause or otherwise because it is the pleasure of the Soveraign injury be offerd us it is to be sufferd with patience rather than resisted by force LXII By the law of Nature war upon Superiors as such is not ordinarily lawfull ALl men indeed naturally as we have said above have right to keep off injury from themselves But Civil society being ordained for the maintenance of tranquillity thereupon ariseth presently to the Commonwealth a certain greater right over us and ours so far as it is necessary to that end The Commonwealth therefore may for publicque peace and order prohibite that promiscuous right of resisting and no doubt is to be made of the will thereof when without that the end cannot be attained For if that promiscuous right of resisting continue it wil not be now a Commonwealth but a dissolute multitude such as were the Cyclops of whom Euripides saith Every one gives lawes to his wife and children and A confused company where every one commands and none obeyes And the Aborigines who as Salust relates were a savage kind of people without laws without rule disorderly and dissolute and the Getulians of whom he speaketh in another place that they were not govern'd neither by customes nor by the Law or command of any Ruler The manners of all Commonwealths are so as I have said It is a general agreement of human society saith Augustin to obey Kings To the Prince saith Tacitus have the Gods given supreme power to the subjects is left the glory of obedience Hic quoque Indigna digna habenda sunt Rex quae facit Aequum atque iniquum Regiiimperium feras Seneca Add that which is in Salust To doe what he will without punishment that is to be King Hence it is that every where the Majesty that is the dignity whether of a people or of One that hath the highest power is defended by so many Lawes by so many punishments which dignity cannot consist if the licence of resisting do remain A Soldier who hath resisted his Captain willing to chastise him if he hath laid hold on his rod is cashierd if he purposely break it or laid violent hand upon his Captain dyes And in Aristotle it is If one that beareth office beateth any man he must not lift up his hand against him LXIII Nor is it allowed by the Hebrew Law IN the Hebrew Law he is condemned to death who is disobedient either to the High Priest or to him who is extraordinarily appointed by God to be Ruler of the people That which is in Samuel of the Kings right plainly appeares to him that looks rightly on it neither to be understood of true right that is of a faculty to do a thing honorably and justly for a far other manner of life is prescrib'd the King in that part of the Law which declares his office nor to signify a naked fact for there would be nothing peculiar in it sith also private men are wont to do injuries to private men but a fact which hath some effect of right that is an obligation of non-resistence Wherefore it is added that the people opprest with these injuries should cry to God for help to wit because no human remedies remained So then is this called right as the Pretor is said reddere jus to do right even when he determineth unrightly LXIV Least of all by the Evangelical Law The first proof out of S. Paul IN the new Covenant Christ commanding to give to Caesar the things that are Caesars would have the disciples of his institution understand that no less if not greater obedience with patience if need be is due to the Highest Powers than the Hebrews owed to the Hebrew Kings which his best Interpreter Paul the Apostle explaining more at large and describing the duties of subjects amongst other words hath these Whosoever resisteth the power resisteth the ordinance of God and they that resist shall receive to themselves damnation He addes For he is the Minister of God to thee for good And again Wherefore ye must needs be subject not onely for wrath but also for conscience sake In subjection he includeth a necessity of not resisting nor that onely that springs from fear of a greater evill but that flowes from the very sense of our duty and obligeth us not to men only but to God He addes two reasons First because God hath approved that order of ruling and obeying both of old in the Hebrew Law and now in the Gospell wherefore the publique powers are to be so esteemed by us as constituted by God himself For we make those things ours which we grace with our authority Second because this order serves to our good But one may say to suffer injuries
behalf of the Commonwealth in Syria Pescennius Niger in Gallia and Britain Clodius Albinus But their enterprize also displeased the Christians which Tertullian likewise boasteth of to Scapula We are defamed concerning the Emperours Majesty yet could the Christians never be found either Albinians or Nigrians or Cassians Cassians were they that followed Avidius Cassius an eminent man who having taken up arms in Syria pretended he would restore the Commonwealth undone by the negligence of M. Antonius Ambrose when he thought injury was done not to himself alone but to his flock and to Christ by Valentinus the son of Valentinian would not use the commotion of the people ready enough to make resistence Violence saith he being offerd I have not learned to resist I can grieve I can weep I can sigh against armes and soldiers oven Goths my arms are my tears For such are the muniments of Priests In any other sort neither ought I nor can I resist After It was required of me that I should restrain the people I answerd it was in me not to raise them in Gods hand to quiet them The same Ambrose would not use the forces of Maximus against the Emperour being both an Arrian and a persecutour of the Church So was Julian the Apostat when he plotted the Churches ruine repressed by the tears of Christians as Nazianzen saith adding This was the only remedy against a persecutor And yet almost all his Army was made up of Christians Adde hereunto that as the same Nazianzen observes that persecution of Julian was not onely injurious to the Christians but had brought the Commonwealth also into extreme danger We will close up this with a saying of Augustin where he explaines the words of Paul to the Romans It is necessary for this life we should be subject not resisting if they the Governors shall please to take any thing from us LXVII It is not lawfull for inferiour Magistrates to make war upon the Highest OUr age hath brought forth men learned indeed but too observant of times and places who perswaded themselves first for so I believe and then others that the things above spoken have place among private persons not also among inferiour Magistrates who as these men thinke have a right to resist the injuries of the Soveraign yea they sin unless they do resist This is not to be admitted For as in Logick the intermediate species if you respect the genus is species if the species below it is genus so these Magistrates in regard of their inferiours are publique persons but in relation to their superiours are private For all faculty of governing which is in Magistrates is so subjected to the highest Power that whatsoever they do against the will of the soveraign is destitute of that faculty and therefore to be accounted for a private act For that saying of the Philosophers hath place here also There can be no order without relation unto somewhat which is first Who think otherwise to me they seem to introduce such a state of things as the Antients feign to have been in heaven before the the Rise of Majesty when they say the minor Gods yeelded not to Jove But the Order which I have mentioned and subalternation is not onely known by common sense but proved also by divine authority For the Prince of the Apostles would have us to be subject otherwise to the King otherwise to the Magistrates to the King as supereminent i. e. without any exception beside those things which are directly commanded by God who approves patience of injury forbids it not to the Magistrates as sent by the King i. e. deriving their power from him And when Paul requires every soul to be subject to the highest powers he included also the inferiour Magistrates If we look back upon the Hebrew people where so many Kings were contemners of divine and human Law we shal never finde that the inferiour Magistrates amongst whom were very many men pious and valiant took so much upon them as to oppose any force against the Kings unless they had receiv'd from God who is King of Kings a speciall mandate But on the contrary what is the duty of Peers Samuel shews when in the sight of the Peers and people with accustomed veneration he attended Saul now ruling perversly Moreover the state of publique Religion alwayes depended on the will of the King and Sanedrin For that the Magistrates and people after the King promised their fidelity to God this must be understood so far as it was in the power of every one And more the images of false Gods publikly exstant we never read to have been thrown down unless by command either of the people in the free State or of the Kings if they ruled Howbeit if at any time any thing was done by force against the Kings it is related for testimony of divine providence permitting it not for approbation of humane fact The Authors of the contrary opinion are wont to object a saying of Trajan when he gave a sword to the Praetorion Prefect Use it for me if I govern well if ill against me But we must know that Trajan as appears by Plinio's Panegyric was very studious to shew nothing regal but to act a true Prince subject to the judgment of Senate and people whose decrees the Prefect's duty was to execute even upon the Prince himself Like to this is that we read of M. Antoninus who would not touch the publique money without the advice of the Senate LXVIII In case of extreme and inevitable necessity what may be done THis is a greater question whether the Law of not resisting bind us in extreme and most certain danger For even some Laws of God although generally exprest have a tacit exception of extreme necessitie which in the time of the Hasmoneans was defined by wise men concerning the Law of the Sabbath Whence it is a common saying Peril 〈◊〉 life drives away the Sabbath and a Jeâ—… in Synesius gives this reason of neglectinâ—… the Law of the Sabbath We were brought into most certain danger of our life Whiâ—… exception is approv'd by Christ himself as also in another Law of not eating thâ—… shew-bread And the Hebrew masters out of the old tradition adde the same exception to the laws of forbidden meats and to some other And rightly Not that God may not bind us over to certain death if he please but because certain laws are of such an argument that it is not credible they were given out of 〈◊〉 rigid a will Which holds more strongly in humane laws I deny not but even a humane law may command some act of vertue under certain peril of death aâ—… the law of not deserting ones Station but we must not rashly conclude that was the will of the Law maker nor dâ—… men seem to have taken so much right over themselves and others but so far aâ—… extreme
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
err with a good mind not out of hatred but love of God believing that they honour and affect the Lord. Although they have not a right faith yet they esteem this to be perfect charity and how they are to be punisht for this error of their opinion at the day of Judgment none can know but the Judge In the mean therefore as I conceive God lends them patience because he sees them though not right believers yet erring through affection of a pious opinion Concerning the Mantchees let us hear him who stuck long in their mire Augustin Let them rage against you who know not with what labour Truth is found and how hard it is to avoid errors Let them rage against you who know not how rare and difficult it is to overcome carnal phantasms by serenity of a pious mind Let them rage against you who know not with what groanes and sighs it is effected that in any sort God may be understood Lastly let them rage against you who are deceived with no such error as they see you are deceived with For my part indeed I cannot rage against you with whom as once with my self I ought now to bear and treat you with as much patience as my friends shewed to me when I went astray in your opinion mad and blind Athanasius sharply inveighs against the Arian heresy because it first used the power of the Judges against Dissenters and endeavoured to draw unto it self by stripes and imprisonment whom iâ—… could not prevail with by perswasion and so saith he it manifesteth it self how far it is from piety and from the worship of God respecting as I take it that which is read Gal. 4. 29. Hilary hath a like passage in his Oration to Constantin In Gallia long since were condemned by the judgment of the Church the Bishops who took order that the Priscillianishs might be convicted with the sword and in the East the Synod was condemn'd which had consented to the burning of Bogomilas Wisely said Plato It is the fittest punishment for one in error to be made to learn CIV Justly are they punisht that are irreverent to the Gods they own MOre justly shall they be punished who are irreverent and irreligious toward those whom they think to be Gods And this was alleged among other causes of the Peloponnesian war between the Athenians and Lacedemonians and by Philip of Macedon against the Phocenses of whose sacrilege Justin thus It was athing that ought to be expiated by the forces of all the world Hierom on the sixt of Daniel So long as the vessels were in the Idol-temple of Babylon the Lord was not angry for they seemed to have consecrated the things of God to divine worship though by an erroneous opinion they mistook the Deity but after that they pollute the divine things by human uses presently punishment waits upon the sacrilege And truly Austin is of opinion that God advanced the Empire of the Romans because though in a false way they were so studious of religion and as Lactantius speaks performed the chiefest business of man though not in truth yet with a good intention And we have said above that perjuries even by false Gods are revenged by the true God He is punished said Seneca because he did it as to God his opinion makes him liable to punishment So alâ—… do I take that other saying of Seneca li divers places the violators of Religion on punisht diversly but every where they are punisht and that of Plato likewise where he condemnes them as capitall offenders CVI. Of Communication of punishment How it passeth to partakers of the fault WHen the question is about Communication of punishment either we mean partakers of the fault or others They that are partakers of the fault are punished not so much for anothers as for their own offense They then that command a vitious act that give consent required that aid or entertain or any other way partake in the crime that give counsel that praise and encourage that when by right properly so called they are bound to forbid do not forbid or when they are bound by like right to help the sufferer of injury do not help that do not disswade when they ought to disswade that conceal the fact which they were bound by some Law to make known all these may be punisht if there be found in them such malice as may suffice to the merit of punishment according to the rules set down afore CVI. The Community or Rulers are engaged by their subjects fault if they know and do not forbid it when they can and ought THis point will be more cleered by examples As another Community so also the Civil is not to answer for the fact of particular men without committing or omitting somewhat themselves S. Augustin saith well We must make a difference between the proper sin of every one and the common sin of the people which is committed by a multitude disposed to it with one heart and one will Hence it was in the form of leagues If there be a failing by publick Counsel The Locrians in Livy make remonstrance to the Roman Senate that the defection did not proceed from any publick determination In the same Author Zeno interceding for the Magnetes to T. Quintus and the Legats with him besought them with tears That the madness of one might not be imputed to the City but that the Doer might run the peril of his own actions And the Rhodians before the Senate separate the publick cause from the private saying There is no City which hath not sometimes wicked Citizens and a rude multitude alwayes So neither is a Father bound by the fault of his children nor the Master of his servants nor other Governours except somewhat that is vitious adhere to them Now among the wayes whereby Governouis of other men become guilty there are two of especiall use and require our diligent consideration Sufferance and Receipt Of sufferance we determine thus He that knows a fault to be done that is able and bound to forbid it and doth not is guilty Cicero against Piso Nor is the difference much especially in a Consul whether himself by pernicious Laws and wicked speeches vex the Commonwealth or suffer others to vex it Brutus to Cicero You will say then Do you make me guilty of anothers fault Yes truly if it were in you to hinder it So in the Army of the Grecians where Agamemnon himself and the rest were under the Common Council it is right that the Grecians were punisht for the offences of their Princes because it was in their power to compel Agamemnon to render the Priest his daughter It is in Livy The Kinsmen of King Tatius beat the Embassadors of the Laurentes and when the Laurentes pleaded the Law of Nations Affection to his friends prevailed more with Tatius
See you not Learning in his Lookes See it more Liuely in his Bookes Tho. Cross Sculpsit THE ILLUSTRIOUS HVGO GROTIUS OF THE LAW OF WARRE AND PEACE WITH ANNOTATIONS III. PARTS AND Memorials of the Author's Life and Death 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 M. Antonin Imp. l. 9. LONDON Printed by T. Warren for William Lee And are to be sold at his shop at the signe of the Turks-head in Fleet-street M. DC L V. TO THE ENGLISH GENTRY WITH ALL DUE HONOUR TO THEIR WISEDOM AND VALOUR THIS WORK IS HUMBLY DEDICATED BY THEIR SERVANT THE TRANSLATOR TO THE READER THat This Book may obtein General Acceptance I have somewhat to say to every sort of Readers The Divine shall here behold the Evangelical Law shining above all other in the perfect Glory of Charity and Meekness The Gentlemen of our Noble Innes of Court shal here read the most Common Law that of Nature and Nations The Civilian may here observe some footsteps of the Goodly Body of his Law To the Statesman and the Soldier 't will be enough to see the Title of War and Peace The Philosopher the Poet the Orator and Historian shall here meet with the choicest Flowers gathered out of their spatious Gardens by a most skilful hand the hand of Him that was excellent in all these kinds of good Learning the Incomparable HUGO GROTIUS This Great Name as well as the Usefulness of the Argument we hope will commend the Book to every Ingenuous Reader to whose candid Censure it is in all humility submitted by C. B. The Author's Dedication to the most Christian KING THis Book Most Eminent of Kings is bold to bear Your Royal Name in the Front in Considence not of It self not of the Author but of the Argument Because it is written for Justice Which Vertue is so properly Yours that by your own Merits and by the Suffrage of Mankind You have thence received a Title most worthy of so Great a King being known every where now no less by the Name of JUST than of LUDOVIC The Roman Commanders esteemed the Titles very specious which were deriv'd from Crete Numidia Afric Asia and other conquer'd Nations How much more Illustrious is Yours whereby you are declared both the Enemy every where and all ways the Conquerour of no people of no man but of that which is Unjust The Egyptian Kings thought it a great matter if One were called the Lover of his Father Another of his Mother a Third of his Brother How small parts are These of Your Name which comprehendeth not only those things but whatsoever can be imagined fair and honorable You are Just when by Imitation of Him you honour the Memory of your Father a King Great above all that can be said Just when you instruct your Brother every way but no way more than by your example Just when you grace your Sisters with Highest Matches Just when you revive the Laws almost buried and as much as you can oppose your self against the declining Age Just but withal Clement when you take away nothing from your subjects whom Ignorance of your goodness had transported beyond the limits of their Duty beside the licence to offend and offer no Violence to Souls of a different perswasion in matter of Religion Just and withall Merciful when by your Authority you relieve oppressed Nations afflicted Princes neither permit Fortune to be too insolent Which singular Beneficence of yours and as neer like to God as human Nature suffers compells me on my own behalf also to make this publick thankfull Acknowledgment For as the Heavenly Stars do not only communicate their Influence to the greater parts of the world but vouchsafe it to every living Creature So you being the most beneficent Star on earth not content to raise up Princes to ease people have been pleased to be a safeguard and a Comfort even to me ill used in my own Country Here is to be added to fill up the Orb of Justice after your publick Actions the Innocency and Purity of Your private life worthy to be admir'd not by Men alone but by the Angels too For how Few of the Inferiour sort yea of those that have secluded themselves from the Fellowship of the world keep themselves so untoucht by all faults as You being placed in such a Fortune which is surrounded with innumerable allurements to sin And how Admirable a Thing is This among Business in the Throng in the Court among so many Examples of Those that sin so many ways to attain unto that which solitude scarce yea often not at all affordeth others This is indeed to merit even in this life not only the name of JUST but of SAINT which was given by the consent of pious men to Charles the Great Ludovic your Ancestors after their Death that is to be not by a Gentilitious but by your own proper right Most Christian. Now as every part of Justice is Yours so is that which concerns the Matter of this Book about the Counsells of War and Peace yours peculiarly as you are a King and King of France This your Kingdom is great which stretcheth it self to both Seas through so many spaces of so happy Lands but it is a greater Kingdom than This that You do not covet other Kingdoms This is worthy of Your Piety worthy of that eminency not to Invade the Right of any Other by your Arms not to remove antient Bounds but to do the Business of Peace in the time of War neither to begin War but with this Desire to bring it to a speedy end And How Brave How Glorious is This How Joyful to Your conscience that when God shal call you up to His Kingdom which alone is better than yours you may confidently say This sword have I receiv'd from Thee for the safeguard of Justice This I render to Thee pure and unstained with the blood of any man rashly shed Thus it shall come to pass that the rules we now look for in books hereafter may be taken from Your actions as from a most perfect Exemplar It is a very great matter This Yet doth the world of Christians dare to exact something more at Your Hands Namely that the Flames of War being every where extinguished not only Empires but Churches may see their Peace returning to them by Your procurement and that Our Age may learn to submit to the Judgment of That Age which All Christians profess to have been truly sincerely Christian The minds of Good men weary of Discords are raised to this Hope by the Friendship newly made 'twixt you the King of Great Britain a most wise Prince exceedingly studious of that Holy Peace and confirmed by the most Auspicious Marriage of your Sister Difficult is the Business by reason of Partial Affections inflamed and exasperated more and more but Nothing is worthy of so excellent Kings but That which is Difficult but That which is Despaird of by all others The God of Peace the God
of Justice O Just peaceable King Crown your Majesty neerest to His as with all other happiness so with this also the procuring of a Just Universal Peace 1625. THE PREFACE OF THE AUTHOR THE Civil Law whether Roman or that which is proper to any other Countrey many Writers have attempted either to illustrate with Commentaries or in a more compendious way to propose unto their Readers But that Law which is between many Nations or their Rulers whether proceeding from Nature it self or constituted by divine precepts or introduced by customs and tacit agreement Few have touched None have hitherto handled universally and in a certain order when yet the Doing hereof is of much Concernment to Mankind For Cicero truly call'd this an excellent Science in Leagues Covenants and Agreements of several people Kings and forein Nations and in all Rights of War and Peace Euripides also prefers this science before the knowledge of divine and humane things 1. This Work is the more necessary because both in our age there are and in former times there have been some who so contemned this part of Right and Law as if it were onely an empty word and had no real existence That saying of Euphemus in Thucydides is almost in all mens mouths That nothing is unjust which is profitable to a King or Common-wealth having power Whereto that is like In the highest Fortune that is more right which is more prevalent And A Common-wealth cannot be govern'd without injury Adde hereunto that Controversies arising between Nations or Kings commonly have no arbitration but are determined by force Now this is not onely the opinion of the Vulgar that War is very far distant from all right and equity but even learned and prudent men do often let fall words favourable to that opinion For nothing is more frequent than Right and Arms opposed one to aother Old Antigonus derided one that presented to him a Commentary of Justice when he was assaulting Cities And Marius said He could not hear the Laws for the clashing of Armour That very Pompey of so bashfull a Countenance was bold to say What would you have me think on Laws now I am armed In Christian Writers many sayings of the like sense occur One of Tertullians may suffice instead of all Deceit rigour injustice are the proper businesses of wars All that are of this mind will no doubt object against us that in the Comedy These uncertain things if you seek to order by certain Reason you do but endeavour to be mad with Reason Wherefore seeing in vain is any Disputation of Right if there be no such thing it will pertain to the commendation and defence of our work that this very great Errour should briefly be refelled Now that we may not have to do with the Multitude let us allow them an Advocate and whom rather than Carneades who had attained to that which was the height of his Academy that he could put forth the strength of his Eloquence for Errour no less than Truth He therefore when he had undertaken to oppose Justice that especially of which we treat found no stronger Argument than this That Men had established for themselves various Laws with respect to their Utility according to their Customs and among the same Men often changed with the times That there is no natural Right or Law But that all Men and other living Creatures are carried by the guiaance of Nature to things profitable for them Wherefore there is no Justice or if there be any it is extreme Folly because it hurteth it self taking care for the benefit of others But what the Philosopher saith here and the Poet followeth That Nature cannot make any difference 'twixt right and wrong must not be admitted For Man indeed is an Animal but excelling all the rest and differing farther from them than they do from one another Which is confirmed by many Actions proper to Mankind And among these things that are proper to Man is the Appetite of Society that is of Community not of any sort but Quiet and according to the measure of his understanding Orderly with those of his own kind which the Stoicks call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What is objected then that every living Creature is by nature carried onely to its own profit so universally taken ought not to be granted For even some of the meer Animals in some sort restrain the desire of their own profit with a respect partly of their Issue partly of others of their own kind Which in them truly we think proceeds from some external intelligent principle because in other actions not more difficult than the former they do not discover such intelligence in themselves And the same is to be said of Infants in whom before all Discipline there shews it self a certain propension to do good to others prudently observ'd by Plutarch as also in that Age Compassion breaketh forth of its own accord But in a Man of perfect Age knowing to do like things in the like manner with an exceeding appetite of Society having Speech the peculiar instrument thereof as his priviledge above all other Creatures we must conceive there is an Ability of Understanding and Working according to general precepts and the things agreeable thereto belong not now to all living Creatures but are peculiar to humane nature Now this custody of Society which we have thus rudely expressed convenient to humane Understanding is the fountain of that Law which is properly called by such a name to which pertains Abstinence from that which is Anothers and if we have any thing of that sort or have gained by it Restitution Obligation to fulfill promises Reparation of Damage unjustly done and the Merit of Punishment amongst Men. From this signification of Law is derived another more large for because Man above other Animals hath not onely that social virtue which we mention'd but also judgement to discern what things delight or hurt not present onely but future and what things can lead to either it is convenient to humane nature according to the measure of humane understanding in these things also to follow a rectified judgement and neither to be corrupted with fear or the allurement of present pleasure nor to be transported with any impetuous rashness And that which is plainly repugnant to such a judgement is also conceiv'd to be against the Law of Nature to wit humane What we have now said would have some place though we should grant which cannot be granted without the highest sin That there is no God or That he hath no Care of humane Affairs the contrary whereof being implanted in us partly by Reason partly by perpetual Tradition and confirmed by many Arguments and Miracles testified in all Ages it follows that we must without exception obey God as our Maker to whom we owe our selves and all we have especially seeing he hath many waies declared his infinite
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
Nature erroneously no doubt for many things in that proceed from the free will and pleasure of God which yet never is contrary to the true Law of Nature and so far is an argument rightly drawn thence while we distinguish accurately the Right of God which God sometimes executes by Men and the Right of Men among themselves We have therefore to our power avoyded both this errour and another opposite to it that thinks there is no use of the Old Covenant since the times of the New Our judgement is otherwise both upon that ground now mentioned and because such is the nature of the New Covenant that the things pertaining to virtue and good manners commanded in the Old ' the same or greater are commanded in the New And we see the Antient Christian Writers have used the testimonies of the old Covenant in thé same way But to understand the meaning of the Books belonging to the Old Covenant no little light may be borrowed from the Hebrew Writers those especially who throughly knew the Languages and the Manners of their own Countrey The New Covenant I use to this end that I may teach what cannot be learned elswhere what is lawfull for Christians which yet contrary to the opinion of many men I have distinguisht from the Law of Nature being assured greater Sanctimony is commanded us in that most Holy Law than the Law of Nature exacteth by it self alone Yet have I not forgotten to observe what is rather commended to us than commanded that we may know 't is impious and penal to decline from the precepts to aspire unto the highest perfection is the part of a generous mind and shall not go without reward Synodical Canons which are right are Collections out of the general sentences of the Law Divine fitted unto the present Occurrences These also either shew what the Divine Law commandeth or exhort to that which God perswades And this is the office of the true Christian Church to deliver those things which are delivered to Her from God and after the same manner wherein they are deliver'd Moreover the Customs among those old Christians who filled up the measure of so great a name either received or praised justly have the force of Canons Next to these is their Authority who flourished among the Christians in several Ages Men renowned for their Piety and Learning and noted for no grievous Errour For what these men say with great asseveration as certain ought to have no small moment for interpretation of things that seem obscure in Holy Scriptures and the more by how much greater is their Consent and nearer access to the times of the first purity when neither domination as yet nor any Faction could adulterate the Primitive Truth The School-men that succeeded the Fathers often shew what good Wits they had but they fell into unhappy times and ignorant of good Arts the less cause we have to wonder if among many things to be praised they have some things to be pardoned Yet when they agree in matter of morality they seldome erre having very clear eyes to perceive what was awry in the Sayings of other men Nevertheless in this contentious study they give us a commendable pattern of Modesty opposing one another with Reasons not which is a fashion of late times risen up to the disgrace of Learning with reproaches the unhansome issue of an impotent and unruly mind The Roman Lawyers are of three sorts First are they whose labours appear in the Pandect the Codes of Theodosius and Justinian and in the Novel Constitutions The second rank are they that succeeded Irnrius viz. Accursius Bartolus and a number of names more that a long time reigned in the Court. In the third place we have those who joyned polite Learning with the study of Law To the first I owe much for they do both often afford excellent reasons to demonstrate that which is of the Law of Nature and often yield testimony to the same Law and no less to the Law of Nations But thus that they as well as others often confound these names yea and call that the Law of Nations which is onely of some people and that not as on Agreement but which some have receiv'd by imitation of others or by chance Besides they often handle what is truly of the Law of Nations promiscuously and indistinctly with those things which are of the Roman Law as appears by the Title De Captivis postliminio That these things therefore might be discerned we have taken some pains The second sort incurious of Divine Law and of antient Historie was pleased to define all the Controversies of Kings and Nations out of the Roman Laws assuming now and then the Canons But these men also by the infelicity of their times were hindred from a right insight into those Laws being otherwise subtil enough to search into the nature of Right and Good whence it comes that they are often very good Authors of Law to be made even when they are bad Interpreters of Law made before But then chiefly are they to be heard when they bear witness to such a Custom that makes the Law of Nations of our times The Masters of the third order who confine themselves to the Roman Laws and expatiate either never or very lightly into that which is Common have scarce any use in our Argument Two Spaniards Covarruvias and Vasquius the latter with great liberty the other more modestly and not without exact judgement have joyned Scholastical subtilty with their skill in the Laws and Canons not abstaining from the Controversies of Nations and of Kings The French have been more studious to insert Histories in the same profession of the Laws amongst whom Bodin and Hottoman are of great name the former in a continued Work the latter in scatter'd Questions whose determinations and reasons will often furnish us with matter to examine In the whole Work I have proposed to my self three things to make the reasons of defining most evident to dispose in a certain order the matters to be handled and to distinguish perspicuously the things which seemed to be the same and were not I have abstained from things that are not of this Treatise as those that shew what is usefull to be done because they have their special consideration in the Politicks which Aristotle handles so judiciously and distinctly as to mingle nothing that is impertinent otherwise than Bodin hath done in whom this Art is confounded with the Art of our Law Notwithstanding in some places I have mention'd what is profitable but on the by and that I might distinguish it more plainly from the question of just He will do me injury that thinks I had an eye upon any Controversies of our Age either already up or like to rise For I profess sincerely as Mathematicians consider Figures abstract from Bodies so have I in treating of Right elevated my Meditations above all particular Actions As to the stile and manner
had not been introduced for life members liberty would yet be proper to every one and therefore could not without injury be invaded by any other And to make use of what is common and spend as much as may suffice nature would be the right of the occupant Which right none could without injury take away This is more plain since by Law and use Dominion is established which I will express 〈◊〉 Tullies words If every member shoulâ—… think to gather more strength by drawing to it self the strength of the member next it the whole body must needs 〈◊〉 weakned and destroyed So if every one of us snatch unto himself the commodities of other men and draw away from every one what he can to advantage himself humane society cannot stand Nature gives leave to every man in the acquisition of things usefull to supply himself before another but by the spoili of another to encrease his own store that nature doth not permit It is not then against society to provide for one self so that anothers right be not diminished nor is that violence unjust which doth not violate the right of another as the same Author saith Of the two kinds of contention by debate and by force the one agreeing to men the other more becoming beasts we must fly unto the later when the former will not serve And elsewhere What is there that can be done against force but by force Ulpian saith Cassius writes that it is by nature lawfull to repell force by force and arms by arms XI Further proof out of the sacred History that all War is not against the Law of Nature THis is further proved out of the sacred History For when Abraham having armed his servants and friends pursued the four Kings that had spoiled Sodom and returned with victory God by his Priest Melchizedeck approv'd his action Blessed be the most high God said Melchisedeck who hath deliver'd thine enemies into thine hand Abraham as appears by the story had taken Arms without any special commission from God therefore the Law of Nature was his warrant whose wisdom was no less eminent than his sanctity even by the report of aliens namely of Berosus and Orpheus The History of the seven Nations whom God gave up to be destroyed by the hand of Israel I shall not use because there was a special mandate to execute Gods judgement upon people guilty of the greatest crimes Whence in the Scripture these VVars are properly called the VVars of God undertaken by his command not by humane Counâ—…el It is more pertinent that the Hebrews under the conduct of Moses and Joshua when they were opposed by the Amalekites repulsed them by Armies The Action was not set upon by Gods command yet was it approved by him after it was done Moreover God hath prescribed to his people general and perpetual Laws of waging VVar thereby shewing VVar may be just even without his special mandate For he doth plainly distinguish the cause of the seven Nations from the cause of other people and prescribing nothing about the just causes of entring into VVar thereby shews them to be manifest enough by the light of nature as tâ—…e cause of defending the frontiers in the VVar of Jephtha against the Ammonites and the cause of Embassadors violated in the VVar of David against the same It is also to be noted which the divine writer to the Hebrews saith that Gedeon Baruc Sampson Jephtha David Samuel and others by Faith overthrew Kingdoms prevailed in VVar put to flight the Armies of Aliens Where in the name of Faith as we learn by the series of that discourse is included a persuasion whereby is believed that the thing done is pleasing unto God So also the wise woman saith of David that he fought the battails of God that is pious and just XII That War is not contrary to the voluntary Divine Law before the time of the Gospell THe greatest difficulty lies in this point concerning the positive Divine Law Nor may any object the Law of Nature is immutable and therefore nothing could be constituted by God to the contrary for this is true in things commanded or forbidden by the Law of Nature not in things permitted only which things being not properly of the Law of Nature but without it may be either forbidden or commanded First then against VVar is brought by some that Law given to Noah and his posterity And surely saith God Your blood of your lives will I require at the hand of every beast will I require it and at the hand of man at the hand of every mans Brother will I require the life of man Who so sheddeth mans bloud by man shall his blood be shed for in the image of God made he man Here do some most generally understand that which is said of requiring blood and what is said of shedding blood for blood they will have to be a commination not an approbation I can allow of neither for the prohibition not to shed blood is not of larger extent than that in the Law Thou shalt not kill and this 't is manifest hath neither taken away capitall punishments nor VVars VVherefore both this Law and that doth not so much constitute any new thing as declare and repeat the old naturall Law obliterated and depraved by evill custom And the words are to be understood in a sense which includes a crime as in the worâ—… homicide we understand not every killing of a man but that which is on purpose and of an innocent person The which follows of shedding blood for blood seems to me not to contain a naked act but a Right I explain it thus By nature it is not unjust that every one suffer as much evill as he hath done 〈◊〉 of a sense of this naturall equity 〈◊〉 accus'd of paricide by his own conscience said Whosoever findeth me she flay me But God in those first times either by reason of the paucity of men or because there being yet but few offenders exemplary punishments were 〈◊〉 necessary repressed by his edict thâ—… which seemed naturally lawfull and appointed the manslayers company to be avoided not his life taken away The like was decreed by Plato in his Laws and of old practized in Greece Pertinent is that of Thucydides Antiently great crimes had little punishments but in progress of time those being contemned death was inflicted From one notable act a conjecture being made of the divine pleasure went into a Law so that Lamech also upon the like crime committed promised to himself impunity from that example Nevertheless when before the floud in the Gyants age a promiscuous licence of shedding blood had prevailed mankind being again restored after the floud God to restrain that licence thought it meet to use more severity and laying aside the lenity of the former times permitted now what nature did before dictate not to be
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
although among the Latins principality and Kingdom are wont to be opposed as when Caesar saith the Father of Vercingetorix held the principality of Gallia but was slain for affecting the Kingdom and when Pisi in Tacitus calls Germanicus the Son of a Prince of Romans not of a King of Parthians and when Suetonius saith Caligula wanted but a little of turning the principality into a Kingdom and when Maroboduus is said by Velleius to have embraced in his mind not a principality consisting in the will of those that obey but a regal power Nevertheless we see these names are often times confounded for both the Lacedaemonian Leaders of Hercules posterity after they were subject to the Ephori were yet stiled Kings as we have said afore and the antient Germans had Kings which as Tacitus speaketh were Soveraign by the authority of perswading not by the power of commanding And Livy saith of King Evander that he ruled by authority rather than command and Aristotle and Polybius call Suffetes King of the Carthaginians and Diodorus too as also Hanno is called King of the Carthaginians by Solinus And of Scepsis in Troas Strabo relates when having joyned to them the Milesians into one Common-wealth they began to use a popular Government the posterity of the old Kings retained the royal name somewhat of the honour On the contrary the Roman Emperors after that openly and without any dissimulation they held a most free regality yet were stiled Princes Moreover Princes in some free Cities have the Ensigns and marks of royal Majesty given unto them Now the Assembly of the States that is of them that represent the people distributed into classes in some places indeed serve only to this purpose that they may be a greater Council of the King whereby the complaints of the people which are oft concealed in the Privie Council may come unto the Kings ear in other places have a right to call in question the actions of the Prince and also to prescribe Laws whereby the Prince himself is bound Many there are who think the difference of the highest Empire or of that less than the highest is to be taken from the conveyance of Empire by way of election or succession Empires devolved this way they affirm to be highest not those that come the other way But it is most certain this is not universally true for succession is not the title of Empire which gives it form but a continuation of what was before The right begun from the election 〈◊〉 the Family is continued by succession wherefore succession carries down 〈◊〉 so much as the first election did confeâ—… Among the Lacedemonians the Kingdom passed to the Heirs even after 〈◊〉 Ephori were ordained And of such Kingdom that is a principality 〈◊〉 Aristotle some of them go by rigeâ—… of bloud some by election and in the Heroical times most Kingdoms in Greece were such as besides him Thucydidâ—… notes On the contrary the Romaâ—… Empire even after all the power botiâ—… of Senate and people was taken awaâ—… was bestowed by election XLVII The second Caution LEt this be the second caution 〈◊〉 one thing to enquire of the thing â—…nother of the manner of holding it which is appliable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an act a way But these things some hold by a full right of propriety others by a righâ—… usufructuary other by a temporary right So the Roman Dictator by a temporary right had the Highest power and some Kings both the first that are elected and they that succeed them in a lawful order by an usufructuary right but some Kings by a full right of propriety as they that by a just War have gotten their Empire or into whose power some people to avoid a greater evill have so given up themselves that they excepted nothing Neither do I assent to them who say the Dictator had not the highest power because it was not perpetual for the nature of moral things is known by the operations wherefore such faculties as have the same effects are to be called by the same name Now the Dictator within his time exerciseth all acts by the same right as a King of the best right nor can his act be rendred void by any other As for duration that changeth not the nature of the thing though if the question be of dignity which is wont to be stiled Majesty this is greater no doubt in him to whom perpetual right is given than to whom temporary right because the manner of the Tenure is of moment in respect of dignity And I would have the same understood of these that before Kings come to age or whilst they are hindred by loss of reason or their liberty are appointed Curators of the Kingdom so that they be not subject to the people nor their power revocable before the appointed time Another judgement is to be made concerning those that have received a right revocable at any time that is a precarious right such as of old was the Kingdom of the Vandals in Africa and of the Goths in Spain when the people deposed them as oft as they were displeased for every act of such Kings may be rendred void by these that have given them a power revocably and therefore here is not the same effect nor the same right as in other cases XLVIII That some highest Empires are holden fully i. e. alienably THat which I have said that some Empires are in full right of propriety i. e. in the patrimony of the Ruler is opposed by some learned men with this Argument That free-men are 〈◊〉 in commerce But as power is either Lordly or Regal so also Liberty is either personal or civil and again either of single persons or of all together for the Stoicks too did say there is a certain servitude consisting in subjection and in the holy Scriptures the Kings subjects are call'd his servants As therefore personal liberty excludes Master-ship so civil liberty opposes regality and any other dition properly so called So Livy opposeth them saying The people of Rome are not in a kingdom but in liberty and elsewhere he distinguisheth the people enjoying liberty from those that lived under Kings Cicero said Either the Kings should not have been expell'd or liberty should have been given to the people really and not in words After these Tacitus The City of Rome from the beginning was under Kings L. Brutus brought in Liberty and the Consulship Strabo saith of Amisus it was sometime free sometime under Kings And frequently in the Roman Laws foreiners are divided into Kings and free State Here then the question is not concerning the liberty of single men but of a people And further as for private so for this publick subjection some are said to be not of their own right not
is nothing profitable Here do some more truly I think than appositely to the meaning of the Apostles say these injuries are profitable to us because the patience shall not go without reward To me the Apostle seemeth to have considered the universal end proposed to that order which is the publique tranquillity wherein also is comprehended the peace of every one And truly 't is not to be doubted but that for the most part we attain unto this good by the publique powers for no man wisheth ill unto himself now the Rulers fecilitie consisteth in the felicitie of his subjects Let there be whom thou mayst rule said One. The Hebrews have a proverb If there were no Government one man would devour another alive Which sense is in Chrysostom too Unless Cities had Rulers we should lead a life more wilde than the wilde beasts not biting only but eating us one the other But if at any time Rulers are transported by too much fear or anger or other affections diverting them from the way that leaderh to tranquiility that is to be accounted among accidents less frequent and which as Tacitus saith are recompensed by the intervenience of better things Now Lawes content themselves with bearing a respect to what falleth out for the most part as Theophrastus said whereto is pertinent that of Cato No Law is perfectly commodious this onely is enquired if it be profitable to the greater part and in the main But the things that happen more rarely are notwithstanding to be bound up in common rules because although the reason of the Law in this speciall fact especially hath not place yet the reason abides in its generality whereunto the specials are to be subject For that is better than to live without rule or that the rule be left to every ones pleasure Seneca to the purpose better it was that even the just excuse of a few should not be accepted than that all men should attempt to make some excuse Here also hath place that speech of Pericles never enough remembred Thus I conceive that the Commonwealth which is well in the general is better for particular men than where private estates are flourishing and the publique is sick For he that hath his domestique fortunes wel settled his country being overthrown must needs fall with it But he whose private estate is decayed in a prosperous Commonwealth is thereby much more easily repaired Wherefore when the publique may sustain losses of particular men But particular men cannot make amends for the publique calamities why should we not all joyn together in maintaining the common Interest 〈◊〉 doing as you do while you are astonisâ—… at your private dammage betraying the Commonwealth The sense whereof is in brief express'd by Livy thus The Commonwealth being safe secures the private estates easily in vain shall you keep your own if you betray the publique Non among things concerning the publique the principal no doubt is that order which we have said of ruling and obeying and that cannot consist with a private licence of resisting I desire to explain this by a noble passage in Dio Cassius Truly I think it not becoming that the Ruler of a City should give place to his subjects nor is there hope of safety if they will command whose duty is to obey For consider what order will be in a family if the elder be despised by the yonger What method in a school if the learners care not for the teachers how can the sick recover their health if they will not in all things be obedient to their Physicians how can Seamen escape danger if the Saylors will not hearken to the commands of their Masters For by nature it is necessary and safe for men that some should govern and some be subject LXV The second proof out of S. Peter TO Paul let us add Peter as a fit companion his words are these Honour the King Servants be subject to your Masters with all fear not only to the good and gentle but also to the froward For this is thankworthy if a man for conscience toward God endure grief suffering wrongfully For what glory is it if when ye be buffeted for your faults ye shall take it patiently but if when ye do well and suffer for it ye take it patiently this is acceptable with God And when he confirmes this by the example of Christ. The same sense also is expressed in Clement's Constitutions in these words Let a servant fearing God bear a good affection to his Master though ungodly though unjust Two things are to be noted here First that the subjection due to masters even to the froward is also to be referd to Kings for that which followes built on the same foundation respects no less the office of subjects than of servants Second the subjection requir'd of us is such as carries with it patience of injuries So is it usually said of parents A gentle parent's dear Yet the ungentle bear And a youth that had long frequented Zeno's school being asked What he had learned there answerd To bear my Fathers anger Justin of Lysimachus Witâ—… a good coutage he receiv'd disgrace froâ—… the King as from his father And it 〈◊〉 in Livy As the hardness of parents so iâ—… that of our Countrey to be mollified by patience and sufferance It is said in tacitus The natures of Kings must be endâ—…red and again We must pray that we may have good Emperors and tolerate thâ—… bad LXVI Further proof from the examples of the antient Christians FRom this Law of our Lord the practice of the antient Christians the best interpreter of the Law departeth not For although very ill men often possessed the Roman Empire nor were there wanting who under colour of relieving the commonwealth oppos'd themselves against them yet the Christians never adjoyned themselves to their enterprizes In Clements's Constitutions we read It is unlawfull to resist the Royal power Tertullian in his Apologetique saith Whence are those Cassii Nigri and Albini Whence are they that set upon Caesar between the two laurels whence are they that shâ—…w their palestric art in stopping his breath whence are they that break into the palace armed bolder than all those Sigerii so the MS. plainly in the library of the most worthy Puteans and bolder than the Parthenit They were of the Romans unless I am deceiv'd i. e. of such as were not Christians That which he saith of the palestrick art pertains to the death of Commodus wrought by the hand of a palestrite at the command of the Prefect Aelius Laetus than which Emperour yet scarce any was more wicked Parthenius whose fact likewise is detested by Tertullian was he that had slain the Emperour Domitian To theâ—…e he compares Plautianus the Praetorian Prefect who designed to kill Septimius Severus a very sanguinary Emperour in his palace Against the same Severus took armes as on
is not chosen as a thing primarily intended as in judiciall punishment but as the only thing remaining at that time when he that is assaulted even at that time ought to desire rather to do somewhat whereby the other may be terrified or weakened than destroyed Present danger is here requir'd and as it were in a point I confess if the assailant draw his sword and so that it appears he doth it with a mind to kill it is lawfull to prevent him For in morals as in naturals a point is not found without some latitude Nevertheless are they deceived and do deceive who admit of any fear whatsoever as a just occasion of such preventing For it is well observed by Cicero Very many injuries proceed from fear when he that thinks to hurt another feareth unless he do it himself shall receive hurt Clearchus in Xenophon Many have I known drawn either by calumny or supicion whilst they fear others and had rather prevent than suffer to have done much evill to those that attempted not nor so much as thovght any such thing against them Cato in his Oration for the Rhodians What saith he shall we first execute that which we say they designed Cicero again Who ever made this Statute or to whom may it be granted without extreme hazard of all that one might lawfully kill him first of whom he saith we was afraid left himself should afterward be killed Pertinent is that of Thucydides The future is yet uncertain nor ought any one therefore to make a quarrell present and certain The same Author where he declareth the hurt of Sedition among the Grecian Cities sets down this for one fault He was praised that first did what another was about to commit To such agrees that saying of Vibius Crispus cited by Quintilian Who permitted thee to be so fearfull And Livia in Dio saith They escape not infamy that by way of prevention do the evill which they fear Now if any one offer not present force but be found to have conspired or lyen in wait if to prepare poyson if to plot a false accusation to suborn witnesses to corrupt judgment such a one I say cannot be justly slain if either the danger may be otherwise avoided or it be not certain enough it cannot be otherwise avoided For for the most part the delay of time interposed affords many remedies and many accidents for our rescue according to the Proverb Between the cup and the lip Yet there are not wanting both Divines and Lawyers that extend their indulgence farther But the other also which is the better and safer way wanteth not the consent of Authors IV. Of the loss of a member and the defense of chastity WHat shall we say of the danger of mutilation and loss of some part of the body Certainly the loss of a member especially one very needfull being very grievous and as it were equiparable to life besides it being hard to know whether it draw not after it perill of death if there be no other way to come off I may suppose the author of such a perill forefeits his own life and may be justly slain by the defendant In defense of Chastity it can scarce be doubted but the same is lawfull when both common estimation and the divine law too equals chastity to life Therefore Paulus the Lawyer said such a defense is right We have an example in Cicero and Quintilian of a Tribune of Marius slaine by a Soldier Yea and women have often slain the in vaders of their modesty as histories relate Chariclea in Heliodorus calls such an act a just revenge on behalf of injur'd chastity V. Defense may lawfully be omitted WHat we have said afore although it be lawfull to kill him that attempts to kill yet he doth more commendably who had rather be killed than kill some do grant so that they except a person profitable to many But to me it seemeth unsafe to impose this Law contrary to Patience upon all in whose life others are concernd Wherefore I may conceive it is to be restrained to them whose office 't is to keep off force from others such as are the companions in a journey undertaken on those termes and publick Rulers to whom that of Lucan may be applyed T was cruelty to yeeld himself to death So many thousands living by his breath VI. Defense is unlawfull sometimes against a person very profitable to the Publick ON the contrary it may happen that because the Invader's life is profitable to many he cannot be slain without sin nor that onely by force of Divine Law whether old or new of which afore when we shewed the Kings person to be sacred but by the very Law of Nature For the Right of nature as it signifies a Law doth not onely respect those things which are dictated by that Justice that is calld Expletrix but conteineth in it self the acts of other vertues also as of Temperance Fortitude Prudence as being in certain circumstances not onely honest but due Now to that which we have spoken Charity obligeth us Nor doth Vasquez remove me from this opinion when he saith a Prince who assaulteth an innocent person ceaseth to be a Prince in that very act than which scarce any thing could be spoken either less truly or more dangerously For as dominions so also Empires are not lost by delinquency unless the Law ordain it But no where is found a Law ordaining this concerning Empires that they should be lost by an offence against a private man nor will ever such a Law be found as I believe for it would bring in very great confusion of things As to that foundation which Vasquez lays for this and many other Conclusions That al Empires regard the utility of those that obey not of those that governe grant it were universally true it would not serve the turne for the thing doth not presently fail whose utility in some part faileth And whereas he adds that the safety of the Commonwealth is desired by every one for his own sake and therefore every one ought to prefer his own safety even before the whole this doth not sufficiently cohere T is true indeed for our own sake we would have the Commonwealth be safe but not onely for our own sake others are also to be regarded For it is a false opinion and rejected by the sounder Philosophers to think that Friendship is born of indigence alone sith of our own accord and by nature we are carryed to it Now that I should prefer the good of a great many before my own proper good Charity adviseth often sometimes commandeth Here is pertinent that of Seneca Princes and Kings and whosoever by any other name are Tutors of the publick State no wonder They are beloved even above all private Relations For if to men of sound judgment publick things are dearer than private it followes that he
and that two ways either for his punishment or for the publick good by vertue of supereminent dominion Hence also may be understood if the party swearing be not of the same country with him to whom the oath is made what his or the others Rulers may do concerning it But he that hath sworn and promised something to a nocent person as such namely to a pirate cannot therefore take away from him in the way of punishment the right which he hath gotten by the promise because then the words would have no effect which by all means is to be avoided XLV What oaths are properly meant in the charge of Christ against swearing HEre it is observable by the way that the words of Christ and of James against swearing do not properly belong to an assertory oath whereof are some examples in the Apostle Paul but to the promissory of a future uncertain thing This evidemtly appears by the opposition in the words of Christ Ye have heard it hath been said to them of old Thou shalt not forswear thy self but shalt render to God thy oath But I say unto you swear not at all and the reason given by James is this Lest ye be found deceitfull for that is the meaning there The same is proved by the words of Christ But let your Communication be yea yea nay nay which is exprest by S. James thus But let your yea be yea and your nay nay Where the first yea and nay signifies the promise the later its performance For yea is a word of promising whence it is explain'd by Amen Apoc. 1. 7. and of the same signification among the Roman Lawyers are the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and quidni in answer to a stipulation For the impletion of a promise it is taken in that place of Paul where he saith All the promises of God in Christ are Yea and Amen Hence the old saying of the Hebrews A just mans yea is yea and his nay is nay On the contrary whose deeds disser from their words with them is said to be yea and nay that is their yea is nay and their nay is yea So the Apostle himself expounds it for when he had denyed himself to have used lightness he addeth his speech was not yea and nay Now if yea and nay signify lightness it follows that yea yea nay nay signify constancy Christ therefore saith the same with Philo It is best and most prosâ—…able and to the rational nature most convenient to abstein from swearing and so to accustom ones self to veracity that ones word may be taken for anoath Josephus of the Essens Whatsoever they say is firmer than an oath and to swear is accounted among them a thing supersluous From the Essens or those Hebrews whom the Essens followed this seems received by Pythagoras whose sentence 't is Let no man swear by the Gods but every one take care of his credit that he may be believed without an oath The Scythians say of themselves to Alexander as Curtius relateth Think not that the Scythians confirm their friendship by oath they sweâ—… by keeping their word Cicero relates in his Oration for L. Cornelius Balbus When one at Athens who had lived amongst them in great repute for his gravity and sanctity had publickly given his testimony and approched to the Altars to make his oath all the Judges with one voyce reclamed and would not let him swear because they would not have it thought that truth depended more upon the religion of an oath than upon the word of an honest man With the saying of Christ well agrees that of Hierocles upon the golden verses He that in the beginning said Reverence an oath therein gave a precept to abstain from swearing about such things which may be done and not done and are of an uncertain issue For such things are little to be regarded and are mutable and therefore neither are they worthy of an oath nor is it safe And Libanius accounts it among the praises of a Christian Emperour He is so far from perjury that he is even afraid to swear the truth XLVI Of faith given without an Oath THerefore in many places in stead of swearing it was invented that faith should be bound by giving the right hand which was the firmest bond of faith among the Persians or by some other sign which was of that force that if the promise were not fulsilled the promiser was accounted no less detestable than if he had forsworn himself Principally of Kings and Princes it is a most usual saying Their word is as strong as an Oath For they ought to be such that they may say with Augustus Bonae sides sum My credit 's good and with Eumenes I will lose my life sooner than my credit Caesars right hand is praised by Cicero for firmness in keeping promises no less than valour in wars and battails and in the Heroical times the Scepter lifted up went for the Oath of Kings as Aristotle hath noted 3. Polit 14. XLVII OF LEAGUES They are lawfull with aliens from true Religion by the Law of Nature LEagues are Covenants or Agreements made by command of the highest powers wherein the parties are bound over to the divine wrath in case they break their faith It is a famous question Whether they may be enterd into with those that are aliens from true Religion which in the Law of Nature hath no doubt or difficulty for that Law is so coÌ„mon to all men that it admitteth not any difference of Religion But the question is about the Law Divine out of which it is discussed not by Divines only but by some Lawyers too and amongst them by Oldradus and Decianus XLVIII They are not universally forbidden by the Hebrew Law FIrst let us consider of the old Divine Law and after of the new It was lawful before the Law of Moses to contract a League with aliens from Religion for an offensive and harmless behaviour We have an example in the League of Jacob with Laban to say nothing now of Abimelech seeing it is not certain he was an Idolater Nor did the Law given by Moses make any change The Egyptians may be an example who were then no doubt Idolaters yet are the Hebrews forbidden to be averse from them The seven Nations are to be excepted condemnd by divine sentence whereof the Israelites were delegated to be the executioners For these persisting in their Idolatry and refusing to submit might not be spared to whom by divine decree were added the Amalekites Leagues of commerce also and such like perteining to the utility of both or of either party are by the Law permitted with the prophane for nothing is found to hinder them And we have the examples of Leagues which David and Solomon made with Hiram King of Tyrians and it is observable that in the sacred history
out of the City they should give what Lars Tolumnius gave and to the Romans by the Samnites if they did come to any Council in Samnium they should not go away inviolate Wherefore this Law doth not pertain to them through whose bounds Embassadors pass without leave for if they go to their enemies or come from their enemies or otherwise make any hostile attempt they may even be slain which the Athenians did to the Embassadors between the Persians and Spartans the Illyrians to the Embassadors between the Essians and Romans and much more may they be bound which Xenophon orderd against some Alexander against them that were sent to Darius from Thebes and Lacedemon the Romans against the Embassadors of Philip to Anmbal and the Latins against the Embassadors of the Volsci If there be no such provocation and Embassadors be ill used not that law of Nations whereof we treat but the friendship and the Honour either of him that sent or of him to whom they go will be judged violate Justin of the latter Philip King of Macedon Afterward he sent his Embassador with letters to Annibal to join in league with him The Embassador being taken and brought to the Roman Senate was sent away safe not in honour to the King but lest he should be made a certain enemy that hitherto was dubious LXIX An enemy to whom an Embassador is sent is bound BUt an Embassy admitted even with enemies in Arms much more with enemyes not in actuall hostility hath the safeguard of the Law of Nations Diodorus Siculus said Heralds have peace in the time of War The Lacedemonians who had slain the Heralds of the Persians are said thereby to have confounded the rights of all men Livy saith Embassadors being brought into danger there was not left so much as the Law of War Curtius He sent Messengers to compell them unto peace whom the Tyrians against the Law of Nations killed and threw into the Sea Justly is it said for in war also many things fall out which cannot be transacted but by Embassadors and peace it self can hardly be made and differences reconciled but by their Mediation LXX Embassadors may not be wronged by way of retaliation THis is a question too Whether by the right of rendring like for like an Embassador may be slain or ill used coming from him that hath done so And truly there are in Histories examples enough of such revenge but histories we know relate not only things done justly but those things also that are done unjustly angrily impotently The Law of Nations provides not only for the dignity of him that sends but for the security of him that is sent Wherefore there is a tacit contract with him also and wrong is done to him though none is done to his Master Wherefore Scipio did not only magnanimously but according to the Law of Nations who after the Embassadors of the Romans were ill entreated by Carthaginians the Embassadors of the Carthaginians being brought unto him and being asked what ought to be done answered not as the Carthaginians have done Livy addes he said He would do nothing unworthy of the manners of the Roman people Valerius Maximus puts the like words but more antient into the mouth of the Roman Consuls on a like occasion Hanno the integrity of our City quits thee of that fear For then too against the right of Legation Cornelius Asina was cast into chaines by the Carthaginians LXXI The companions also of Embassadors and their Goods are inviolable THe Companions also and the Goods of Embassadors have in their proportion a kind of sanctimony Whence it was in the old form of the Heralds O King do you make me a Royal messenger of the Roman people do you privilege my companions and my Goods And by the Julian Law de vi publica they are pronounced guilty not only that have wronged Embassadors but their attendants too But these are sacred accessorily and so far as it seems good to the Embassador Wherfore if his Attendants have greatly offended they may be demanded of him that he may yield them For they are not to be drawn from him by force When this was done by the Achaians against some Lacedemonians that were with the Roman Embassadors the Romans cryed out the Law of Nations was broken Whither may be also referred the judgment of Sallust concerning Bomilcar which we made use of above But if the Embassador will not yield them the same course is to be taken which before we said about the Embassadors own offense Now whether an Embassador hath jurisdiction over his own family and whether his house be a sanctuary for all that fly unto it depends upon the concession of him with whom he resides For this belongs not to the Law of Nations That the movable Goods also of the Embassador which are accounted an accession to his person cannot be seised on neither as a pledge nor for payment of a debt nor by order of judgment nor which some allow by the Kings hand is the truer opinion For all coaction ought to be far from an Embassador as well that which toucheth his necessaries as his person that he may have full security If therefore he hath contracted any debt and as it is possess no immovables in that place He is to be calld upon kindly and if he refuse his Master so that at last that course may be taken with him which is usual against debters in another territory Nor is it to be feared which some think lest if this be so none will be found to contract or deal with an Embassador For even Kings who cannot be compell'd want not creditors and among some Nations it was a custome saith Nicolaus Damascenus that contracts which were gone into trust should bear no action no more than ingratitude so that men were constrained either to fulfill the contract presently or be content with the naked faith of the debter And Seneca wisheth all the world were in this condition Would we could perswade men to receive mony lent only from those that pay it willingly would no stipulation did bind the buyer to the seller nor sealed bonds and indentures were laid up Faith should rather keep those agreements and a mind studious of right Appian also saith it displeased the Persians to owe money being a thing obnoxious to deceit and lying Aelian saith the same of the Indians With whom Strabo agrees in these words They have no judgments but about slaughter and injury because a man cannot help it but he may fall into these But contracts are in every ones power wherefore one must bear with it if a man break his word and consider afore hand whom one trusts and not fill the Common-wealth with Law-suits And it was a constitution of Charondas that none should commence an action who had trusted another with the price of his commodity which also pleased Plato
in force and the publick Laws ordained for the protection of men that none may take the liberty to revenge himself King Theodoricus Hence was the sacred reverence of Laws found out that nothing might be done by violent hands nothing by the impulse of a private spirit Howbe it the old natural liberty remains first 〈◊〉 places where are no judgments as on the Sea Whither perhaps may be referrd that act of C. Caesar who being yet a private man pursued the Pirats by whom he had been taken with such a navy as he could provide in hast and partly chased partly sunke their ships and when the Proconsul neglected to do justice upon the captives himself returning to Sea hanged them up The same will have place in deserts or where they live like the Nomades So among the Umbrici Nicolaus Dâ—…mascenus relates every one was his own Avenger which also is done done at this day among the Moscht some time after an address to the judge Nor had Duels and single Combats any other original which before Christianity were used by the German Nations and in some places are not yet enough disused Therefore the Germans in Velleius Paterculus wonder when they beheld the form of the Roman Jurisdiction that they ended injuries by justice that things wont to be decided by arms were determined by Law The Hebrew Law permits the Kinsman of one slain to kill the manslayer without the places of refuge and the Hebrew interpreters do rightly note that such a recompence for the dead may be required by force for one self as in a wound not unless by the judge because moderation is more difficult where a man 's own pain is urgent A like custom of privately revenging slaughter was among the most antient Greeks as appears by Theoclymenes words in Homer But most frequent are the examples hereof amongst them that have not any common judge Hence are just wars desined to be those that revenge injuries as Austin saith and Plato approves of force of arms until they that are in fault be compelled to give satisfaction to the innocent and wronged party LXXXVI The end of punishment is also the profit of All. THe utility of all sorts which was the third end hath the same parts with that which perteins to the wronged person For either this is the intent that he who hath wronged one may not wrong others which is brought to pass by destroying him or by weakning him or by binding him so that he may not be able to hurt or by amending him or lest others encouraged by his impunity be troublesome to any other persons which end is obtained by conspicuous punishments which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Latins exempla which are therefore used that the punishment of one may be the fear of many that by the kind of punishment others may be deterred as the Lawes speak that others may beware and fear as Demosthenes The power also of this Law is in every mans hand naturally Sâ—… Plutarch saith a good man is by nature designd a Magistrate and that perpetuall For by the very Law of Nature he is Prince that doth just things So Tully proves by the example of Nasica that a wise man never is a private man and Horace calls Lollius Consul not of one year Which sayings are nevertheless to be understood in a Commonwealth so far as the Laws thereof do bear Of this natural right Democritus He that 〈◊〉 a Theef or a Robber any way either by his own strength or by command or by suffrage is innocent And †Seneca When I shall command a malefactors head to be cut off I will be of the same mind and countenance as when I smite Serpents and venemous creatures But whereas both the inquisition of the fact often requires great diligence and the estimation of the penalty much of wisedom and equity lest while every one presumed too much of himself others not giving place contentions should arise therefore it pleased the just communities of men to make choice of the best and wisest such as they esteemed so or hoped would prove so The same Democritus The Laws would not have hindred every one to live after his own pleasure unless one had gone about to offend another For envy lays a ground for sedition But as above we said of revenge so in this exemplary punishment some footsteps and reliques of the old right do yet remain in those places and among those persons which are not under certain Jurisdictions and moreover in some excepted cases So by the custems of the Hebrews an Hebrew falling away from God and his Law or misleading any to false worship might presently be slain by any man The Hebrews call it the judgment of zeal which they say was exercised first by Phineas and thence grew into a custom Lo Mattathias killed a certain Jew polluting himself with Greekish rites So three hundred other Jews were slain by their Countrey-men as is related in the book commonly call'd the third of the Maccabees Nor was Stephen stoned upon other pretence or conspiracy made against Paul and many other examples of like sort are extant both in Philo and in Josephus Moreover among many people both to Masters over their servants and Parents over their children remained a full right of punishing them even to death So at Sparta the Ephori might put a Citizen to death without judgment Thus by what we have said may be understood what the right of Nature is touching punishments and how far it hath remained LXXXVII What the Evangelical Law hath constituted about this matter NOw must we consider whether the Evangelical Law hath more narrowly circumscribed that Liberty Surely as we have elswhere spoken it is no wonder that some things which by nature and the Civil Laws are Lawful are forbidden by Divine Law and that most perfect and promising a reward above human nature to the attaining whereof not undeservedly are requir'd vertues that exceed the meer precepts of Nature Castigations which do leave neither infamy nor permanent loss and are necessary in respect of age or other quality if they come from those hands which are permitted by human Laws to inflict them namely Parents Tutors Masters and Teachers have nothing repugnant to the Evangelical Precepts as we may sufficiently conceive by the nature of the thing it self For these are remedies for the mind not less innocent than medicines ungrateful to the sense Of revenge we must have another opinion For as it only exsatiats the mind of the offended person it is so far from agreement with the Gospel that as we have shew'd afore it is even naturally unlawfull But the Hebrew Law not only forbids hatred to be kept against the neighbour that is one of the same nation but also commands certain common benefits to be conferrd upon such enemies Wherefore the name of
posterity of Transgressors were accursed by the Athenian sanction added to Solon's Laws concerning God's Law addeth This doth not like that punish the children and posterity of offenders but every one is the author of his own calamity Pertinent is the Proverb Noxa caput sequitur and that saying of the Christian Emperors Punishment must remain there where the fault is and Let sins light only upon their authors and the fear go no farther than the offense Philo saith It is just that the punishments should rest where the sins do reprehending the custom of some Nations that put to death the innocent Children of Tyrants or Traytors Which custom Dionysius Halicarnassensis reprehendeth also and shews the iniquity of the reason pretended viz. That children will be like their parents for that is uncertain and an uncertain fear ought not to be sufficient for the death of any There was one so bold as to dictate this to Arcadius a Christian Emperor that the children in whom the examples of their Fathers crime are feared should be involved in the fathers punishment and Ammianus relates how the Issue was slain being but very young lest it should grow up after the parents pattern Neither is fear of revenge * a more just cause Nothing is more uniust saith Seneca than that one should inherit his fathers hatred Pausanias the Generall of the Greeks touched not the children of Attaginus author of the Thebans desection to the Medes These saith he had no finger in the plot M. Antonius in a letter to the senate Ye shall pardon the son in law and wife of Avidius Cassius he had conspir'd against him And why do I say pardon when they have done nothing God indeed in the Law given to the Hebrews threatens he will punish the iniquity of the fathers upon the children But He hath a most full right of dominion as over our goods 〈◊〉 over our lives too being his gift which without any cause and at any time he can take away from any one at his pleasure Wherefore if by an immature and violent death he cut off the children of Achan Saul Jeroboam Ahab upon them he uses the right of dominion not of punishment and by the same act punisheth the parents in a more grievous manner For whether they survive which the Divine Law had very much respect unto and therefore extendeth not those threats beyond the children of the third and fourth Generation Exod. 20. because a mans Age may be lengthenâ—… to a sight of them and it is certain the parents are punisht with such a spectaâ—… yea it is more grievous to them thâ—… what they bear in their own persons 〈◊〉 whether they do not live so long yet 〈◊〉 die in that fear is no small punishmâ—… The hardness of the people saith Teâ—…lian brought in a necessity of such reâ—…dies that in contemplation of their postâ—…ty they might frame themselves 〈◊〉 bedience But withall we must note Gâ—… doth not use this more heavy vengeance except against offences committed pâ—…perly to his own dishonour as false 〈◊〉 ships perjurie sacrilege Nor did 〈◊〉 Greeks think otherwise For the crimes which were supposed to make their posterity obnoxious which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are all of that sort upon which argument Plutarch discourseth eloquently in his book of the late Revenge of God Aelian hath an Oracle of Delphi to this effect Inevitable Vengeance from above Falls on the wicked though ally'd to Jove Stil imminent it is o'r them and theirs Successively entail'd upon their Heirs It is spoken there of sacrilege and it â—…s confirmed by the history of the Tholoâ—…ane gold in Strabo and Gellius Like senâ—…ences we had afore of perjury But to proceed though God hath threatned â—…hus yet doth he not always use that â—…ight especially if some eminent vertue â—…hine forth in the Children as we may â—…e Ezech. 18. and is proved by some â—…xamples in the now-cited place of Pluâ—…arch And sith in the new Covenant â—…ore openly than in the old are declaâ—…ed the punishments which remain for â—…e wicked after this life therefore in that Covenant is there no commination exâ—…ant exceeding the persons of the Transâ—…ressors to which purpose though less â—…lainly is that foresaid passage of Ezeâ—…iel Now for Men they may not imitate that vengeance of God nor is the reason alike because as we have said God without intuition of the fault hath right over the life men have not but upsome great crime and such as is the persons own Wherefore that same Divine Law as it forbids parents to be put to death for their children so forbids children to be put to death for the deeds of their parents Which Law pious Kings as we read have foâ—…lowed even in the case of Treason and the same Law is very much praysed by Josephus and Philo as a like Egyptian Law by Isocrates and a Roman Law by Dionysius Halicarnassensis Plato hath a saying which Callistratus the Lawyer expresseth in this sense The crime or punishment of the father can instict no blot upon the son He addes the cause For every one bears that lot which his own doings have drawn for him nor is he made successor of another's crime Cicero saith Would any Commonwealth endure that Law-giver by whose Ordinance the son or grandchild is condemned if the Father or Grandfather be a Delinquent Hence it is that to pâ—… to death a woman with child was accounted a wicked thing in the Laws 〈◊〉 the Egyptians Greeks and Romans Moreover if those human Laws be unjust which do slay the children for tâ—… parents offenses more unjust surely 〈◊〉 the Law of the Persians and Macedorans devoting also and destroying the lives of kinsmen to the end the offenders against the King might fall the more sadly as Curtius speaks a Law saith Ammianus Macellinus that excelled all the Laws in the world in cruelty Notwithstanding all this it is to be noted if children of traitors have any thing or can expect any thing to which they have no proper right but the right is in the people or King that may be taken from them by a certain right of dominion the use whereof yet may redound to the punishment of those that have offended Hither is to be referd that of Plutarch touching the Children of Antiphanes a traitor that they were kept back from honours as at Rome the children of those that were proscrib'd by Sulla So in the foresaid Law of Arcadius that is tolerable for the children Let them not be advanced to any honour nor to any offices What we have said of punishing children for their parents faults may be applyed also to a people truly subject for a people not subject through their own fault that is for their negligence may be punisht as we have said if it be enquir'd whether that people
it was meet that the matter should be ended on this wise 'twixt him and Turnus Certainly among other customs of the ancient Franks this is at large commended by Agathâ—… in his first book whose words are worthy to be added If any Contraversies happen to arise between the Kings they all muster their force's as it were to determine the matter by battell and they march forth into the field But so soon as the Armies have faced each other they lay aside anger and embrace concord perswading their Kings to put their differences to triall of Law or if they will not do that to enter into single combat and bring the matter to an end only with their own danger Because it is neither agreeable to equity nor the orders of their Countrey that they for their proper hatreds should weaken or overthrow the common good Wherefore presently they disband and the causes of their quarels being taken away peace is reestablished and muital security assured So great care of Justice and love of their Country is in the Subjects so gentle and yielding a disposition is in the Kings Now although in a doubtfull case both parts are bound to seek condition whereby war may be avoided yet is he more bound who requireth than he who possesseth For that in an equal case the condition of the possessor is the better is a point not only of the Civil but of the Natural Law And here is further to be noted that War cannot lawfully be undertaken by him who knoweth he hath a just cause but hath not sufficient proofs whereby he may convince the possessor of the injustice of his possession The reason is because he had no right to compell the other to depaâ—… out of his possession And lastly when both the right is ambiguous and neither possesseth or Both equally there he is to be thought unjust who rejecteth the offered division of the thing in conâ—…versy CXIX Whether war may be just on both sides OUt of the premises may be determined that Question agitated by many whether War respect being had of them that are the principal Movers of it may on both sides be just For the various acceptions of the word just are to be distinguished A thing is called just either from the cause or according to the effects From the cause again either in a special acception of justice or in that general use of the word as all rectitude is so called The special acception is agaiâ—… divided into that which perteineth to the work and that which perteineth to the worker For the worker himself sometime may be said to do justly as oft as he doth not unjustly though that which he doth be not just So Aristotle rightly distinguisheth to do unjustly and to do the which is unjust War cannot be on both sides just in the acception special and related to the thing it self as a sute in Law neither because a moral facultie to contraries to wit both to act and to hinder is not granted by nature But that neither of the parties warring may do unjustly is possible for no man doth unjustly but he that also knows he doth an unjust thing and many are ignorant of that So may a sute be followed justly that is with an honest mind on both sides For many things both in point of right and fact whence right ariseth are wont to escape men In a general acception just is wont to be called that which is without all fault of the Doer And many things without right are done without fault through ignorance inevitable An example whereof is in them who observe not the Law which without their fault they are ignorant of after the law it self is promulged and time sufficient by it self for knowledge hath passed So also in Law-sutes it may happen that both parties may be free from injustice and all other blame especially where both parties or either goeth to law not in his own but anothers name to wit by the office of a Tutor or Guardian whose duty is not to desert any right though uncertain So Aristotle saith in contentions of controverted right neither is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wicked With whom Quintilian agrees when he saith it may come to pass that an Orator that is a Good man may plead on both sides Yea Aristotle also saith a Judgâ—… may be said to judge justly two wayes â—…ther when he judgeth plainly as he ougâ—… or when he judgeth according to 〈◊〉 judgment conscience And in anotheâ—… place If one hath judged through igâ—…rance he hath not done unjustly Nevertheless in war it can hardly fall out be there will be at least some temerity and defect of love by reason of the weight of this business which in very deed is sâ—… great that not content with probabâ—… causes it requireth grounds most evidenâ—… But if we take just according to some effects of right it is certain war on bâ—… sides may be just in this sense as will appear by what we shall say of publick â—…lemn war in the next part And in like manner a Sentence not given according to right and Possession without right have some effects of right CXX ADMONITIONS For the eschewing of War Right is often to be remitted THough it seemeth not properly a paâ—… of our work our Title being of thâ—… Right of war to declare what other vertues give in charge concerning it neveâ—…theless on the By we must meet 〈◊〉 this errour of such as think where 〈◊〉 Right is manifest enough war presenâ—…y either must or alwayes may lawfully be undertaken For the contrary is true that for the most part it is more pious and honest to depart from ones right That we may honestly forsake the care even of our own life that we may provide as much as lies in us for the eternal life and salvation of another hath been shewed afore Which is especially the duty of Christians therein imitating the most perfect example of Christ who dyed for us while we were his enemies This doth much more excite us not to pursue our worldly interests with so much hurt of other men as Wars do carry with them That for every such cause war is not to be waged even Aristotle and Polybius do advise Nor was Hercules commended by the Antiens for commencing war against Laomedon and Augias because they paid him not for his labour Dion Prusaeensis in that Oration which is of War and Peace saith it is not only enquir'd whether They against whom we intend war have done us injury but whether the injury be of such moment that it may deserve a war CXXI Punitive right especially is to be remitted TO omit punishments many things do exhort us Consider how many faults Fathers connive at in their Children Whereof Cicero hath a dissertation in Dion Cassius A Father saith Seâ—…ca except many and great offenses have overcome his patience except he hath more to
place where Subjects do truly offend or where the case is doubtfull For to this purpose was ordained that distribution of Empires Notwithstanding where the injury is manifest where any Busiris Phalaris Thracian Diomedes executeth such things upon his Subjects that no good man can allow of there the right of human society is not praecluded So Constantin against Maxentius and against Licinius other Roman Emperors against the Persians took arms or threatned to take them unless they would abstein from persecuting the Christians for their Religion Yea supposing arms cannot no not in extreme necessity be taken rightly by Subjects whereof we have seen those to doubt whose purpose was to defend the regal power nevertheless will it not therefore follow that arms may not be taken by others on their behalf For as oft as a personal not real impediment is put against any action so oft may that be lawfull for one for anothers good which was not lawfull for that other if the matter be of such a nature wherein one may procure the good of another So for a Pupil whose person is uncapable of judgment the Tutor goes to Law or some other for one absent even without a mandate his Defendor Now the Impediment which prohibites a subject to resist comes not from a cause which is the same in a subiect and no-subject but from the quality of his person which passeth not into others So Seneca thinks I may war upon him who being divided from my Countrey troubleth his own as we have said when we spake of exacting punishment which thing is often joined with defense of the innocent We are not ignorant by reading of histories old and new that Avarice and Ambition hideth it self under these pretences but it doth noth not therefore presently cease to be a Right which is abused by evil men Pirates also go to Sea and Robbers use the sword CXXXIII Concerning Soldiers of Fortune MOreover as warly Societies enterd into with such a mind that aids are promised in every war without any difference of the cause are unlawfull so is no kind of life more wicked than theirs who without respect unto the cause are hired to kill men thinking There is most right where is most pay Which Plato proves out of Tyrtaeus This is that which the Aetolians were upbraided with by Philip and the Arcadians by Dionysius Milesius in these words Mercats are made of War and the calamities of Greece are a gainto the Arcadians and without regard of the causes arms are carried to and fro A miserable thing indeed as Antiphanes speaks That men should get their living by exposing themselves to death What is more necessary to us saith Dion Prusaeensis or what is more worth than life and yet many men are prodigal of this while they are greedy of money But this is a small matter to sell their own blood unless they did also sell the blood of other men that are oft-times innocent So much worse than the Hangman by how much worse 't is to kill without cause than with cause As Antisthenes said Hangmen are better than Tyrants because they execute the guilty these the guiltless Philip of Macedon the Elder said These men that get their living by making a trade of war esteem war to be their Peace and Peace their war War is not to be turned into an Art or profession being a thing so horrid that nothing can make it honest but the highest necessity or true charity as may be understood by what we have said afore It is not indeed in it self a sin saith S. Augustin to go to war but to go to war for the spoil is a sin Yea and for the stipend or pay if that alone be regarded or that chiefly when as otherwise it is very lawfull to receive pay for who goeth to war at his 〈◊〉 charge saith S. Paul the Apostle CXXXIV Of just Causes that wit may be waged by those that are under others command Who they are and what they should do where they are left free WE have done with them that are is their own power there are others in a condition of obeying as sons of families servants subjects and single Citizens if they be compar'd with the Body of their Commonwealth And these iâ—… they be called to debate or a free choice be given them to go to the war or to stay at home ought to follow the same rule with them that at their own pleasure undertake wars for themselves or others CXXXV What they should do when they are commanded to war and believe the cause of the war to be unjust BUt if it be commanded them to bear arms as it usually comes to pass What then Why truly if it be manifest to them that the cause of the war is unjust they ought by all means to abstein That we must obey God rather than men is not only a sentence of the Apostles but of Socrates too and the Hebrew-Masters have a saying That the King must not be obeyed when he commands any thing contrary to the Law of God Polycarpus said just before his death We have learned to give meet honour to the Empires and powers ordained of God so far as may consist with our salvation And S. Paul the Apostle Children be obedient to your Parents in the Lord for this is right Upon which place Hierom It is a sin for children not to obey their parents yet because parents might perhaps command somewhat amiss he added In the Lord. And he annexed this of servants When the Lord of the flesh â—…neth a thing divers from the Lord of the Spirit Obedience is not due And elswhere In those things only ought men to be subject to their Masters and Parents which are not against the Commands of God For the same Apostle also saith Every man shall receive a reward of his own worke whether he be bond or free Seneca Neither can we command all things nor 〈◊〉 servants perform They must not obey â—…s against the Commonwealth They must not lend their hand to any wickedness Sopater Obey thy Father If according to right well if otherwise not so Stratâ—…cles was irrided of old who propounded a Law at Athens that whatsoever pleased King Demetrius might be accounted pious toward God and just toward 〈◊〉 Pliny saith he laboured somewhere to make it evident That it is a crime to serve another in doing evil The Civil Law themselves which do easily give pardon to excusable faults favour those that must needs obey but not in all things for they except things which have atrocity which are heinous and wicked in their own nature as Tully speaks and not by the interpretation of Lawyers Josephus relates out of Hecataeus that the Jews which served under Alexander the Great could not be compell'd either by words nor blows to carry earth with the other soldiers to the repairing of
deceits to the Carthaginians and Greeks who accounted it more glorious to ensnare the enemy than to beat him And then they added At present perhaps Deceit may be more profitable than valour but a perpetual victory is obteined over his mind who is forc'd to a confession that he is overcome neither by art nor chance but by plain battell in a just and pious war And in after-times we read in Tacitus That the Romans were wont to revenge themselves of their enemies not by fraud not secretly but openly and in arms Such also were the Tibarens who did agree with the enemy about the place and time of battell And Mardonius in Herodotus saith the same of the Grecians in his time XV. It is not lawful to make a traitor it is to use him LAstly to the manner of acting this is pertinent Whatsoever is not lawful for any one to do to impell or solâ—…cite him to do it is not lawful neither For example It is not lawfull for a subject to kill his King nor to yield up Towns without publick Counsell nor to spoil the Citizens To these things therefore it is not lawfull to tempt a subject that remaineth such For always he that gives cause of sinning to another sins also himself Nor may any reply that to Him who impelleth such a man to a wicked act that act namely the killing of his enemy is lawfull He may indeed lawfully do it but not in that manneer Augustin well It is all one whether your self commit a sin or set another to do it for you It is another thing if to effect a matter lawful for him one use the offerd service of a man sinning without any other impulse but his own That this is not unjust we have proved elswhere by the example of God himself We receive a fugitive by the Law of War saith Celsus that is It is not against the Law of War to admit him who having deserted the enemies part electeth ours XVI Goods of Subjects bound for the Rulers debt Naturally none is bound by anothers deed but the Heir LEt us come to those things which descend from the Law of Nations They belong partly to every war partly to a certain kind of war Let us begin with generals By the meer Law of nature no man is bound by anothers act but the successor of his goods for that Goods should pass with their burthens was introduced together with the dominion of things The Emperor Zeno saith It is contrary to natural equity that any should be molested for other mens debts Hence the Titles in the Roman Law That neither the wife be sued for the Husband nor the husband for the Wife nor the Son for the Father nor the Father or Mother for the Son Nor do particular men owe that which the Community owes as Ulpian hath it plainly to wit if the Community hath any Goods for otherwise particulars are bound as they are a part of the whole Seneca If one lend my Country mony I will not call my self his debtor yet will I pay my share He had said afore Being one of the people I will 〈◊〉 pay as for my self but contribute as for 〈◊〉 Country And Every one will owe not 〈◊〉 a proper debt but as a part of the publick Hence it was specially constituted by the Roman Law that none of the Villagers should be tyed for the other debts of Villagers and elswhere no possession of any man is charged with the debts of others no not with the publick debts and in the Novell of Justinian Pignorations for others are prohibited the cause being added that it is against reason for one to be charged with anothers debt where also such exactions are called odions And King Theodoricus in Cassiodore calls this Pignoration of one for another a wicked licence XVII By the Law of Nations Subjects are tied for the debts of the Ruler ALthough these things be true yet by the voluntary Law of Nations it might by induced and it appears to have been induced that for that which any Civil Society or the head thereof ought to make good either by it self primarily or because in anothers debt it hath also made it self lyable by not doing right for that I say are tyed and bound all corporal and incorporal Goods of them that are subject to the same society or head And it was a certain necessity that effected this because without this great licence would be given to the doing of injuries seeing the Goods of Rulers oftentimes cannot so easily come to hand as of private men who are more This then is among those Laws which Justinian saith were constituted by the Nations upon the urgency of human needs Howbeit this is not so repugnant to nature that it could not be induced by custome and tacit consent when even without any cause sureties are bound by consent alone And there was hope that the members of the same society might more easily obtain mutual right and provide for their own indemnity than foreiners who in many places are very little regarded Besides the benefit of this obligation was common to all Nations so that they which were one time grieved with it another time might be eased by the same Moreover that this custome was received appears not only out of full wars which Nations wage against Nations for in these what is observed may be seen in the forms of denuntiation and in the proposal and the decree it self but also where matters are not come to that fulness of war yet there is need of a certain violent execution of right that is imperfect war we see the same to be used Agesilaus of old said to Pharâ—…bazus a subject of the King of Persia We O Pharnabazus when we were the Kings friends carried our selves like friends towards all his and now being become his enemies we carry our selves like enemies Wherefore seeing you will be out of the things that are His we do justly oppose him in you XVII An example hereof in the Apprehension of men and of goods ONe species of that execution which I speak of was that which the Athenians called Apprehension of men of which the Attick Law thus If one have force offerd him and dy his Kinsman and friends may apprehend men till either the Man-slayers be duly punisht or yielded but it is lawful to apprehend only three men and no more Here we see for the debt of the City which is bound to punish her subjects that have hurt others â—…s tyed a certain incorporal right of the subjects that is the liberty of staying where they please and doing what they will so that they may be in servitude until the City do what she is bound to do that is punish the Guilty For though the Epygtians as we learn out of Diodorus Siculus argued that the body or liberty ought not to be
as the Scholiast upon Thucydides observes And other Nations living also upon the spoil when they were come home from Sea sent unto the owners to redeem if they pleased at an equal rate what they were robbed of as Strabo saith Now the principal in moral matters is instead of the form and as it is rightly said by Cicero and Galen The denomination is given from the greater part Wherefore the same Cicero speaketh too crudely saying in his third De Republicâ where is an unjust King or unjust Senators or an unjust people there is not now a vitious but no Common-wealth Which sentence S. Augustiu correcting saith Yet I shal not therefore conclude it to be no people nor Common-wealth so long as there remaineth a rational multitude joyned together in a sociable Communion of things which they love A diseased body is nevertheless a body and a City though very sick is a City as long as Laws remain Courts of Justice remain and other things necessary that foreiners may there obtain right as well as private men among themselves Better spake Dion Chrysostom who said the Law that especially which makes the right of Nations is in a Common-wealth as the soul in the body of man which being taken away 't is no longer a Commonwealth And Aristides in that Oration wherein he exhorts the Rhodians to concord shews that many good Laws may consist even with Tyranny Now although there be so great a difference between a people how wicked soever and them that being not a people come together for wickedness yet may a change happen not only in single persons as Jephtha Arsaces Viriatus of Captains of Robbers became just Captains but in companies also as they that were only Robbers embracing another kind of life may become a Common-wealth Moreover who they are that have the Highest power we have said above whence it may also be understood If any have it in part for that part they may wage a just war and much more they who are not subjects but unequally confederate as between the Romans and their Fellows though inferiour in League the Volscians Latins Spaniards Carthagenians all things of a just War were exercised as the Histories inform us But that war may be just in this sense it sufficeth not that it be waged between Highest powers on both sides but it is requisite as we have heard that it be publickly decreed and truly so decreed publickly that the signification thereof be made by the one party to the other whence Ennius calls them promulgata pralia promulged battells It is a just war which is waged by edict saith an antient writer in Isidore things being requir'd or for resistance of Enemies and Livy put it in the description of a just war that it be commenced with an Edict and in an open manner XXI In denouncing war what is of the Law of Nature what proper to the Law of Nations FOr the understanding of the places last cited and other like about the promulgation of war we must accurately distinguish what things are due by the Law of Nature what by nature are not due but honest what things by the Law of Nations are requir'd to the proper effects of the same Law and what proceed from the peculiar institutes of some Nations By Natural Law where either force offerd is repelled or punishment exacted of one that hath offended no denuntiation is required there And this is that which Stenelaidas the Ephor saith in Thucydides We must not stand debating with words and arguments being iniur'd beyond words And Latinus in Halicarnassensis He that is assaulted with 〈◊〉 is wont to repell his enemy And Aelin out of Plato saith War undertaken to resist violence is indicted not by an Herall but by nature Hence Dion Chrysolm affirms Most wars are made without proclamation And for no other cause Livy objects to Menippus prefect of Antioch that he had slain certain Romans waâ—… being neither proclam'd nor so begun that they had heard of swords or any blood as yet drawn thereby shewing either of these two might suffice for a defense of his deed Neither is Indiction more necessary by the Law of Nature if a Lord will lay hands upon his own goods But as oft as one thing is invaded for another or the debtor's goods for the debt and much more if one will seise upon the goods of them that are subject to the debtor Interpellation is required whereby it may appear we had no other way to come to our own or that which is due unto us For that right is not primary but secondary and surrogate So also before the Supreme Governour may be invaded by war for the debt or the offense of the subject there ought to intercede an Interpellation that may constitute him in a fault whereby he may be esteemed to do a dammage or to be delinquent according to what we have discoursed above Yet further where the Law of Nature commandeth not such an interpellation to be made it is honestly and commendably interposed to wit that the adverse party may abstein from offending any more or the offense given may be expiated by repentance and satisfaction according to what we have said of using means to avoid war Pertinent here is that Precept which God gave unto the Hebrews that they should make offer of Peace to the City that was to be assaulted which precept being specially given to that people is by some ill confounded with the Law of Nations Nor indeed was that any other peace but 〈◊〉 condition of subjection and Tribute Cyrus when he had marched into the Armenians Country before he did hurt any man sent Messengers to the King to demand Tribute due upon the League and soldiers Supposing that to be more friendly and courteous than to lead on farther and sâ—…r nothing As Xenophon speaks in that History But by the Law of Nations to those peculiar effects in all cases is requir'd denuntiation not on both but on the one party This denuntiation is either Conditionate or Pure Conditionate where it is join'd with Remanding of Things And in the name of Res reperitae the Heralds Law comprehended not only vindication by right of dominion but also the prosecution of that which is due upon a Civil or Criminal cause as Servius explains it rightly Thence was that in the forms To be rendred To be satisfyed To be yielded Where To be yielded as we have said elswhere is to be understood unless they that are call'd upon will rather punish the guilty themselves This requiring of Things Plixy testifies was named Clarigation That denuntiation in Livy is conditionate That they will with all their power depell that injury except it be remedied by those that did it And in Tacitus Unless they specdily bring the offenders to punishment He will make promiscuous slaughter Pure denuntiation
is that which is specially Indiction or Edict where either the other hath already begun the war this is that which in Isidore is called war to beat off men or himself hath committed such faults as deserve punishment But sometime the Pure follows the Conditionate though that be not necessary but ex abundanti Hence is that form I testify that people is unjust and will not do right This also is an argument of supervacuous observation that war hath oft been proclamed on both sides as the Peloponnesian by the Corcyraeans and Corinthians when it is sufficient that it be indicted and proclamed by either Furthermore from the custom institutes of some Countries not from the Law of Nations are the White Rod among the Greeks the Turfs and bloody spear among the Aequicolae first and by their example among the Romans the renouncing of friendship and society if there had been any thirty solemn days after demaund made the throwing of the spear again and other things of like kind which ought not to be confounded with those that properly belong to the Law of Nations For a great part of these ceased to be used saith Arnobius in 〈◊〉 time yea in Varro's time some of them were omitted The third Punick War 〈◊〉 at once indicted and begun Maecenâ—… Dion will have some of them to be proper to a popular State XXII War proclamed against any one includes his Subjects and Adherents But not as considerd by Themselvet MOreover War indicted against him who hath the highest power over the people is witha l suppos'd to be indicted against all His not only subjects but those too who will join themselves unto him as being an accession to his party and this is that which the later Lawyers say The Priâ—…ce being diffâ—…ed his Adherents also are diffâ—…ed For to indict war they call To diffâ—… Which is to be understood of that same war which is waged against him to whom it is indicted As when war was denounced against Antiochus They were not pleased to denounce it against the Aetolians apart because they had openly join'd themselves with Antiochus The Heralds answerd The Aetolians have declared war of their own accord against thomselves But thâ—… war being ended if another People 〈◊〉 King for supply of aids is to be waâ—… against that the effects of the Law of Nations may follow there will be need of a new Indiction For now he is not â—…ookt upon as Accessory but Principal Wherefore it is rightly said that by the Law of Nations neither the war of Manlius upon the Gallo-Greeks nor of Caesar upon Ariovistus was Lawfull for they were not assalted now as an accession of a Neighbours War but principally to which purpose as by the Law of Nations Indiction so by the Roman Law a new command of the Roman people was necessary For what was said in the proposal against Antiochus Was it their will and pleasure that War should be enterd with King Antiochus and those that followed his party which was observed too in the Decree against King Perseus seemes truly understood so long as the War continued with Antiochus or Perseus and of those that really immixed themselves in that War XXIII The Cause why Denuntiation is requisite to some effects which are not found in other Wars NOw the cause why Nations requir'd Denuntiation to that war which we have said to be just by the Law of Nations was not that which some allege that they might do nothing privily or 〈◊〉 deceit for that perteins rather to the 〈◊〉 cellence of their valour than to righâ—… some Nations are read to have appointed their enemies the day and the place of battell but that it might certainly appear the War was not waged by a prinâ—… undertaking but by the will of either people or their Heads For thence are sprung those peculiar effects which have place neither in war against Robbers nor in that which a King wageth against his Subjects Therefore Seneca spake distinctly Wars were indicted against Neighbours or waged against Citizens As to that which is noted by some and shew'd by examples That ever in such wars the things taken become theirs that take them it is true but on the one part onely and that by natural rigâ—… not by the voluntary right of Nations as that which provides for Nations only not for those which are no Nation or part of a Nation Besides they erre 〈◊〉 this that they think War undertaken for defense of ones self or ones Goods needs no indiction for it doth need not simply but in regard of those effâ—… which we have begun to speak of and 〈◊〉 explain anon XXIV War may be indicted and waged together War indicted for violation of Embassadors NEither is that true that War may not be waged presently as soon as it â—…s indicted which Cyrus did against the Armenians the Romans against the Carthaginians as we said even now For Inâ—…iction by the Law of Nations requiâ—…eth no time after it Yet may it come to â—…ass that by natural right some time may be required according to the quality of the business to wit when things are demanded or punishment requir'd upon the guilty and that is not denyed For â—…en such time is to be allowed whereâ—… that which is requir'd may commodiâ—…ully be done And if the right of Emâ—…assages be violated it will not therefore be unnecessary to denounce War but 〈◊〉 will suffice to do it as it may be done â—…afety that is by Letters as also citaâ—…ons and other denuntiations are usually made in places not safe XXV The right of killing enemies in a solemn War The effects of that War in generall TO that of Virgil Then it will be lawful to hate and fight and 〈◊〉 spoil Servius Honoratus when he had deduced the Original of the Heralds law from Ancus Martius and farther from the Aequicolae saith thus If at any time men or beasts were by any nation taken away from the people of Rome the Pater paâ—… tus went with the Heralds that is Prâ—… who have authority in making of Leagâ—… and standing before the bounds 〈◊〉 loud voice pronounced the cause of the War and if they would not restore the things taken or deliver up the Author of the injury he threw a spear which 〈◊〉 the beginning of fight and thence forbid was lawful after the manner of War 〈◊〉 take the spoil Whereby we learn 〈◊〉 there are certain proper effects of We indicted between two Nations or thâ—… heads which effects do not follow 〈◊〉 as it is considered in its own nature Thâ—… agrees very well with what we noted 〈◊〉 fore out of the Roman Lawyers XXVI Lawful is distinguisht into that which is done without punishment and that which is done without fault BUt Virgil's Licebit it will be lawful Let us consider what importance it hath For sometime that is said to be
lawful which is right and pious intirely though perhaps another thing may be done more laudably as in that saying of S. Paul the Apostle All things are lawful for me but all things are not expedient All things that is all of that kind of which he had begun to speak and would speak more So it is lawful to contract matrimony but more laudable is single Chastity proceeding from a pious design as S. Augustin discourses to Polâ—…ntius out of the same Apostle It is also lawful to marry again but it is more â—…awdable to be content with one marriage as Clemens Alexandrinus rightly explains this question A Christian husband lawfully may leave his Pagan wife as S. Augustin thought with what circumstances this is true is tâ—… proper to determine here but he may also keep her lawfully Ulpian of 〈◊〉 Seller to whom 't is lawful after appointed day to pour forth the wine If 〈◊〉 saith he when he may pour it forth 〈◊〉 doth it notâ—… he is the more to be pracâ—… But sometime a thing is called lawful not which may be done without violating the rules of piety and duty but which among men is not subject unto punishment So among many people it is lawfull to commit fornication among the Lacedemonians and Egyptians it was also lawfâ—…l to stealâ—… In Quintilian we read There are some things not laudable by nature but granted by Law as in the XII Tables The Creditors might divide the Deâ—… body among them But this signification of the word lawfull is less proper 〈◊〉 Cicero observeth well in the fist of his Tâ—…sculans speaking of Cinna To me entâ—… câ—…ntrary he seemeth miserable not 〈◊〉 in that he did such things but in that 〈◊〉 so behaved himself that it might be lawful for him to do them though indeeâ—… is lawful for none to do amiss but weaâ—… in our language calling that lawful which is permitted to any one neveâ—…theless it is received as when the saâ—… Cicero for Rabirius Posthumus thus 〈◊〉 speaks the Judges Ye ought to consider what becomes you not how much is lawful for you for if ye seek only what is lawful you may take away out of the City whom you please So all things are said to be lawful for Kings because they are exempt from human punishments as we have said elswherere But Claudian informing a King or Emperour rightly saith Have in your thought Not what you may effect but what you ought And Musonius reproveth Kings who â—…se to say This is lawful for me not This becomes me And in the same sense we often see oppâ—…ed What is lawful and What ought to be done as by Seneca the Father in his controversies more than once XXVII The effects of solemn War generally consider'd are referrd to the later sense of lawful in respect of impunity And why such effects were introduced Testimonies IN this sense then it is lawful for an Enemy to hurt his Enemy both in his person and in his Goods that is not only for him who upon a just cause vengeth war and who hurteth within thâ—… measure which we have said to be naturally granted in the beginning of its book but lawful on both sides and wiâ—…out distinction So that for that cause he can neither be punisht being perâ—…hance deprehended in another territory as 〈◊〉 homicide or theef not can War be made against him by another upon that account Thus we read in Sallust To 〈◊〉 all things in victory were lawful by the Law of War The cause why it pleased the Nations to have it so was this 〈◊〉 had been dangerous for other Nations 〈◊〉 take upon them to pronounce and determine about the Right of War between two Nations for by that means they would be engaged in the War of others 〈◊〉 the Massilians said in the cause of 〈◊〉 and Pompey That it was above thâ—… Judgment and above their power to â—…cern whether side had the juster caâ—… Moreover even in a just War it can â—…ardly be known by external marks what is the just measure of self-defense of recovering ones own or of exacting punishments so that it is much better to â—…eave these things to be examined by the Conscience of those that War than to reduce them under the judgment of others Beside â—…this this effect of licence that is of â—…mpunity there is another also to wit of dominion concerning which we shall speak hereafter As to that licence of hurting which we have now begun to handle it extendeth first to Persons of which â—…icence many Testimonies are extant in good Authors It is a Greek proverb out of a Tragedy of Euripedes That the blood of an enemy leaves no stain Therefore by the old custom of the Greeks it was not lawfull to bathe to drink to sacrifice much less in their company who had slain a man out of the time of war but in theirs that had done so in war it was lawfull And commonly to kill is calld the right of War Marcellus in Livy Whatsoever execution I have done upon the enemy the right of War defends In the same historian Alcon saith to the Saguntines I think it better for you to suffer these things than your bodies to be slain your wives and children to be dragd and ravisht before your eyes by the right of War The same elswhere when he had related how the Astâ—…penses were put to the sword addeth It was done jure belli by the right of War Cicero for Deiotarus Why should he be an enemy to you by whom be might have been killed by the Law of Wâ—… by whom he remembred he was made King and his sons And for M. Marcellus When by the condition and right of Victory we were all dead men we were preserved by the judgment of your Clemency Caesar to the Haeduans signifies They were saved by his favour when the Law of War gave him leave to destroy them Josephus in the war of the Jews It is honourable to fall in War but by the Law of War and by the hand of the Conquerour Now wheÌ„ these writers speak of the Law or right of War it appears by other places they must be understood not of that which frees the act from all fault but of the impunity before mentioned Tacitus said Causes and merits are considerd in peace in War the innocent and the guilty fall together The same in another place Neither did the right of men suffer them to honour that slaughter nor the course of War to revenge it Nor is the right of War to be taken otherwise when Livy tells how the Greeks spared Aeneas and Antenor because they had always perswaded unto Peace Cyprian Monslaughter when private men commit it is a crimo when it is publickly done 't is call'd a vertue Not respect of innocence but greatness of the cruelty gives impunity to wicked Actiâ—… So
Lactantius saith The Romans did Legitimate their injuries by their power And Lucan's Jusque datum sceleri is of the same sense Law was given to wickedness XXVIII Of Strangers found in an Enemies Country THis Law of Licence is of large extent for first it comprehends not only them that actually bear arms or are subjects to him that maketh war but also all that are within the enemies Country which is manifest by the very form in Livy Let him be our Enemy and they that are within his guards For danger may be feard from them too which in a continued and universal war sufficeth to make way for that right of which we speak otherwise than in pignorations which as we have said after the example of burthens imposed were introduced for the discharge of publick debts wherefore it is no wonder if as Baldus notes much more licence be in war than in the right of pignoration And this which I have said hath no doubt indeed as to strangers who after the beginning and notice of the War come into the enemies quarters But they that went thither before seem by the Law of Nations to be accounted for enemies after some small time wherein they might have departed For so the Corcyraeans about to besiege Epidamnum first allowed strangers liberty to go away denouncing otherwise they should be taken for enemies XXIX The enemies subjects may every where be offended This right extends to Infants and Women to Captives and such as yield themselves without conditions BUt they that are truly subjects of the enemies to wit upon a permanent cause may be offended every where by this right of Nations if we respect their own persons For when War is proclamed against any one it is withall proclamed against all his men as we sheud above in the form of indiction and so in the decree Was it their will and pleasure war should be denounced against King Philip and the Macedonians which are under his Government Now he that is an enemy may every where according to the Law or Nations be assalted Enemies therefore may be slain on their own ground on the enemies ground on that that belongs to none on the Sea But that it is not lawful to kill or violate them in a peaceable territorie proceeds not from their own person but from his right who hath Empire there For civil societies might constitute that nothing should violently be done against men in such a Country unless according to process of Law And where the Law is open there are weighed the merits of persons and that promiscuous right of hurting ceaseth which we have said was introduc'd among enemies Livy relates that seaven Ships of the Carthaginians were in a Haven under the Syphax's dominion who had peace at that time both with the Carthaginians and Romans that Scipio arrived there with two ships and before he entred the Haven they might easily have been opprest by the Carthaginians but being born in with a strong winde before the Carthaginians could weigh anchor they durst not fight with them in the Kings Haven But to retutn how far that licence reacheth is hence understood that the slaughter of Infants too and women goes unpunished and is comprehended in this right of war I will not allege here that the Hebrews slew the women and children of Heshbon and that the same is commanded to be done upon the Canaanites and upon them whose cause was connexed with the Canaanites These are the works of God whose right over men is greater than that of men over beasts as we have said other where That comes neerer to shâ—…w the common custom of Nations that in the Psalm he is called blessed who shall dash the Infants of Babylon against the stones The Thracians of old as Thucydides relates having taken Micalessus put the women also and children to the sword Arrian tells the same of the Macâ—…donians when they had taken Thebes The Romans did the like at Iâ—…rgis a town of Spain as Appian saith Germanicus Caefar is said by Tacitus to have laid wast with sword and fire the Vi loges of the Marsi a people in Germany and it is added Neither 〈◊〉 〈◊〉 age mov'd compassion Titus proposed also the women and childrenâ—… of the Jews for a spectacle to be torn by wild-beasts And yet these two are supposed to have been of no cruel disposition So customary was that cruelty becom The less marvel 't is to hear of old men slain as of Priam by Pyrrhus Nor were Captives exempted from this licence Pyrrhus in Seneca according to the custom then receiv'd No Law spares a captive or hinders his punishment So the Corcyraeans slew the captives out of Epidamnum and five thousand captives were slain by Annibal A Centurion of Caesar's thus addresses himself to Scipio in Hirtius of the African war I give you thanks that you promise me life being your Captive by the Law of War Nor at any time is excluded the power of killing such as are taken in War as to the Law of nations though by the Lawes of Cities it is restrained in some places more in some less Moreover there are frequent examples of suppliants also slain as by Achilles in Homer in Virgil of Mago and Turnus which we see are so related that they are withall defended by that right of war which we have said For S. Augustin also praising the Gotths who had spared suppliants and such as fled to sanctuaries saith What had been lawful to be done by the Law of War they judged unlawful for them to do Nor are they always receiv'd thar yield themselves as in the battel at Granicum the Greeks that serv'd the Persian the Uspenses in Tacitus as yet free begging Mercy but the Victors would not hear saith he and so they fell by the Law of War Note here again the Law of War So also you may read they that yielded and were received without any condition were slain as the Princes of Pometia by the Romans the Samnites by Sulla the Numidians by Caesar and Vercingetorix yea this was almost the perpetuall custom of the Romans upon the Commanders of the enemies whether taken or yielded to kill them on the day of triumph as Cicero Livy Tacitus and many others teach us In the same Tacitus Galba commanded them to be decimated every tenth man slain to whom he had given quarter And Caecina having accepted Aventic yielding to him put to death Julius Alpinus one of the Princes as the raiser of the War the rest he reserved for the mercy or the cruelty of Vitellius XXX That right ill referd to other causes It reacheth also to hostages HIstorians are wont sometimes to refer the cause of killing enemies captives especially or suppliants either to talion or to pertinacy in resisting but these causes as we have elswhere distinguished are rather suasory
than justifick For a just talion and properly so called is to be exercised upon the same person that offendeth as may be understood by what we have said above of communication of Punishment But on the contrary from war for the most part that which is called talion redounds to the evil of those who had no hand in that which is accused And as to a pertinacious affection to one side no man judges that worthy of punishment as the Neapolitans in Procopius answer Belisarius which is then most true when that side is either assigned by nature or chosen upon good ground Yea so far is this from being a crime that it is a crime to quit a Garrilon especially by the old military Roman Law which here admitted not lightly any excuse of fear or danger To depart from a Garrison saith Livy is capital Wherefore every one as he pleaseth makes use of that highest rigour for his own Interest and that rigour is defended among men by that right of Nations of which we now speak The same right hath been also used against Hostages nor against them only who had obliged themselves as by agreement but against them too that were deliverd by others Two hundred and fifty were once slain by the Thessalians by the Romans three hundred of the Volsci We must note that Children also were wont to be given for Hostages as by the Parthians which we read was also done by Simon one of the Maccabees and women as by the Romans in the time of Porsena and by the Germans as Tacitus relateth XXXI By the Law of Nations it is forbidden to kill with Poyson Of poysoning weapons and waters NOw as the Law of Nations permitteth many things by that way of permission afore explained which are prohibited by the Law of Nature so it prohibiteth some things which by the Law of Nature are permitted For to kill 〈◊〉 man whom it is lawful to kill whether with the sword or with poyson is no matter if you respect the Law of Nature I say the Law of Nature for indeed it is more generous to kill so that he who is killed may have leave to defend himself but this is not due to any one who hath deserv'd to dy But the Law of Nations if not of all yet of the best is of old that an enemy may not be kill'd with poyson which consent hath its rise from a regard of common advantage that dangers of war which began to be many might not be too much hightned And it is credible that this proceeded from Kings whose life above others is defended from arms but is less secured from poyson thâ—… the life of other men unless it be defended by some reverence of Law and fear of infamy Livy calls it Clandestin wickedness speaking of Perseus Claudian a heinous act speaking of the treachery against Pyrrhus rejected by Frabricius and Cicero wickedness touching the same history For common examples sake no such thing is to be admitted say the Roman Consuls in their letter to Pyrrhus with arms not with poyson are wars to be waged is in Valerius Maximus and as Tacitus relates when a prince of the Catti promised the death of Arminius by poyson Tiberius rejected him equalling himself in that glory with the old Generals Wherefore they that hold it lawful to kill an enemy by poyson as Baldus out of Vegetius respect the meer Law of Nature but oversee that which derives it self from the will of Nations It is a little distant from such poysoning and comes neerer to force to infect darts with poyson and double the causes of death which Ovid hath deliverd of the Getes Lucan of the Parthians Silius of some Africans and namely of the Ethiopians Claudian But this too is against the Law of Nations not the universal but of the Europaeans and of such as conform to the Civility of better Europe This is well observ'd by Salisberiensis in these words Although I see it used sometimes by Infidels yet I do not find the licence of poyson by any law ever indulged to us Therefore Silius's phrase is To infame steel by poyson for to poyson fountains also and this too is not kept secret or not long Florus saith is not only contra morem majorum against the manner of the Antients but against the right of the Gods that is against the Laws of Nations which were wont to be ascribed to the Gods as Authors Nor ought this to seem strange if to lessen dangers there be some such tacit agreements of Warriours when of old the Chalcidians and Eretrians during the War consented together to make no use of darts But the same is not to be determined of corrupting waters without poyson so that they may not be potable which Solon and the Amphictyones are read to have thought just against Barbarians and Oppian relates as usual in his time For that is esteemed all one as if the stream be averted or the Veins of the Spring intercepted which both by Nature and Consent is lawfull XXXII Whether it be against the Law of Nations to use Murtherers WHether it be lawful by the Law of Nations to kill an enemy a Murtherer being sent against him is wont to be enquired To be sure we must make a difference between Murtherers who violate their faith either express or tacit as Subjects toward a King vassalls toward their Senior Soldiers toward him whom they serve men received as suppliants or strangers or fugitives toward their Receivers and between those that are not bound with any faith as Pipin father of Charles the Great attended with one Soldier passing the Rhene is related to have slain his Enemy in his Chamber which Polybius saith was in like manner attempted against Prolemy King of Egypt by Theodotus an Etolian and he calls it a manly boldness Such also was that enterprize of Q. Mutius Scaevola commended by Historians which himself thus defends Being an enemy I purposed to kill an Enemy Porsena himself in this act acknowledges nothing but valour Valerius Maximus calls it a pious and valiant design and Cicero praiseth it in his Oration for P. Sextius It is indeed lawful to kill ones Enemy every where not only by the Law of Nature but of Nations too as we have said above nor is it material what the number is of those that do or suffer Six hundred Laconians with Leonides entring the Enemies camp go on straight to the Kings tent Fewer might lawfully have done so Few were they that killed the Consul Marcellus being secretly circumvented and that were very neer stabbing Petilius Cerialis in his bed Ambrose commends Eleazar for setting upon an Elephant bigger than the rest supposing the King sate thereon Nor onely they that do these things but they that appoint others to do them are accounted without fault by the Law of Nations
Scavola's boldness * was authoriz'd by those old Roman Senators so religious in their Wars Nor ought any one to be mov'd with this that such being taken are wont to be extremely punisht for that proceeds not from their having offended against the Law of Nations but from this that by the same Law every thing is lawful against an enemy and every one as it is for his own profit determineth either more rigourously or more gently For so also Spies who doubtless by the Law of Nations may be sent such as Moses sent such as Joâ—…a himself was being deprehended were used very ill The custom is to put spies to death as Appian saith justly sometimes by these that manifestly have a just causâ—… of Warring by others by that licence which the Law of war granteth As 〈◊〉 those that have refused such offerd service their refusal is to be referd to their nobleness of mind and their confidence in their known strength not to any opinion of just or unjust But concerning those Murtherers whose act hath perfidiousness in it we must make another â—…udgment Nor do they themselves only act against the Law of Nations but they also that use their service For though in other things who use the service of wicked men against an Enemy are judged to sin before God not before Men i. e. against the Law of Nations because in that point customes have overpowred Laws and to deceive after the manner of the times as Pliny speaks is Prudence Nevertheless that custome hath stayed beneath the right of killing For here who useth anothers treachery is believ'd to have violated the Law not of Nature only but of Nations This is signified by those words of Alexander to Darius Ye undertake iâ—…pious wars and though ye have arms ye bid mony for the heads of your enemies And a little after Ye have not kept the Laws of War with me Elswhere He is to be pursued by me to his utter ruine not as a just Enemy but as a Murtherer and Poysoner That of Valerius Maximus is pertinent The death of Viriatus hath a double charge of perfidiousness one against his friends because he was stain by their hands another against Q. Servillus Coepio the Consul becauso the was the Author of this wickedness having promised impunity and so desoâ—…ed not the victory but bought it The cause why it was determined so in this case and not in others is the same we set down before concerning poyson viz. lest dangers should be too much heightend especially theirs who are most high Eumenes said he did not believe any Commander would be willing to overcome so as to give a very bad precedent against himself And in the same Historian when Bessus had laid hands upon Darius it is said a matter of example and the common cause of all Kings This therefore is not lawful in a solemn war or among them who have right to proclame a solemn War but without that it is accounted lawful by the same Law of Nations So Tacitus saith the treachery against Gannascus a revolter was not degenerous Curtius saith the perfidiousness of Spitamenes might be the less odious because nothing seemed impious against Bessus the Murtherer of his King So also to be perfidious to Theeves and Pirats though not without fault is unpunisht among the Nations because such rogues are hated XXXIII Of ravishing of Women in War RAvishing of Women you shall often read in war both permitted and not permitted They that have permitted it considered only the injury offerd to anothers body to which they judged it meet for the Law of arms whatever is the enemies should be subject Better minded were others who considered here not the injury alone but the very act of inordinate wild lust and that it perteins neither to security nor to punishment and therefore it ought not to be unpunisht no more in war than in peace This latter is the Law not of all Nations but of the best So Marcellus before he took Syracuse is related to have taken care of preserving chastity even in the enemy Scipio saith in Livy If concern'd him and the people of Rome that nothing which is any where sacred should be violated by them any where i. e. among the more vertuous and Civil Nations Diodorus Siculus of the Soldiers of Agathocles They did not abstain no not from dishonouring and forcing Women Aelian when he had told how the Sicyonian conquerors had prostituted the Pellenaean women and virgins exclames Cruel acts Oye Gods of Greece and so far as I can remember dishonest even in the sight of Barbarians And it is fit to be observed among Christians not only as a part of military disciplin but also as a part of the Law of Nations that whosoever hath violently injur'd Chastity though in War should every where be obnoxious unto punishment For neither by the Hebrew Law should any such offender have escaped as may be understood by that part of it constituted about marrying a Captive and not selling her afterward Upon which place Bacchai the Hebrew Master It was Gods will that the Camp of the Israelites should be holy not polluted with whoredomes and other abominations like the campes of the Gentiles Arrian when he had related how Alexander taken with the love of Roxane would not abuse her as a captive through lust but vouchsafed her the honour of Marriage addes a commendation of the deed Plutarch of the same deed He did not lustfully abuse her but as became a Philosopher took her for his wife And one Torquatus because he had offerd violence to a Virgin of the enemies was carried away into Corsica by decree of the Romans as the same Plutarch has it XXXIV Of Wast The Enemies things may be spoyled CIcero said It is not against nature to spoil him whom it is lawful to kill No wonder then that the Law of Nations permitted the goods of enemies to be spoiled when it had permitted themselves to be slain Polybius in the fift of his Histories saith it is comprehended in the Law of war that the fortifications Havens Towns Men Ships Fruits of the Enemies and all things like may either be carryed away or destroyed And in Livy we read There are certain Laws of War which are right to be done or sufferd namely for fields to be burnt houses ruin'd spoiles of men and cattell to be brought away You may find in Historians almost in every page whole Cities overthrown or walls levelled with the ground populations and burnings of the Countrey And we must note such things are lawful also upon those that yield The Townsmen saith Tacitus opening their gates submitted themselves and all they had to the Romans Themselves were spared the Town was fired XXXV Of spoiling things sacred and religious NOr doth the meer Law of Nationâ—… the consideration of other duties laid aside of which we shall speak below except sacred
for the glory of Empire are to be waged with less bitterness That hath place often which is in Cicero concerning the war of Caesar and Pompey It was a dark War a Contention 'twixt most famous leaders many doubted what was best And what he saith elswhere Though we were in some fault of human error yet certainly we are free from wickedness Just as in Thucydides things are said worthy of pardon which are done not out of malice but rather by mistake What Brutus wrote of Civil I think may be well referd to most wars They are more sharply to be forbidden than prosecuted And where Justice doth not exact this yet 't is agreeable to Goodness agreeable to Modesty agreeable to Magnanimity By pardoning was increased the Greatness of the Roman People saith Sallust Tacitus No less Gentleness is to be used toward suppliants than stifness toward an enemy It is a memorable passage in the fourth Book to Herennius Well did our Ancesters observe this to deprive no King of life whom they had taken in War Why so Because it was not meet to use the power fortune had given in the punishment of them whom the same fortune so lately had placed in the higest dignity But did he not lead an Army against us I will not remember that Why so Because it is the part of a valiant man to take them for enemies that contend for victory and to look upon the conquered as men that valour may diminish the danger of War and Courtesy may encrease the honour of Peace But would he have done so had he overcom Why then do you spare him Because I use to contemn such folly not to imitate it Perseus Syphax Gentius Juba and in the time of the Cesars Caractacus and others escaped capital Punishment so that it may appear both the causes of war and the manner of waging it were considerd by the Romans whom yet Cicero and others do confess to have been somewhat too sharp in the use of Victory VVherefore M. Aemilius Paulus in Diodorus Siculus not amiss admonisheth the Roman Senators in the Cause of Perseus If they feared nothing human yet they should fear divine revenge imminent over them that use their victory with too much pride and insolence And Plutarch notes in the wars among the Greeks the very enemies held their hands from the Lacedemonian Kings in reverence of their dignity An enemy therefore that will regard not that which human Laws permit but that which is his duty that which is good and pious will spare even an Enemies blood and will put none to death but to avoid death himself or somewhat like death or els for sins proper to the person which amount to capital offences And yet to some that deserve death he will forgive either all punishment or that of death either for humanity sake or for other probable causes Excellently saith the now-cited Diodorus Siculus Expugnations of Cities prosperous fights and whatsoever is in War successfull more often proceed from fortune than from valour but in the highest power to bestow mercy upon the Conquered is the work of Providence alone Now concerning the slaughter of them who are killed by chance not on purpose we must remember it is a part of mercy if not of Justice not without great causes and such as conduce to the safety of many to enterprize ◅uch a thing whence destruction may come upon the innocent Polybius is of this mind saying It is the part of good men not to wage a destructive War no not with the bad but so far that offences may be repaird and amended not to involve the innocent with the guilty in the same ruine but for the innocent to spare the guilty also XLV Children Women old Men Priests Scholars husbandmen are to be spared UPon those premises 't wil not be hard to determine of the specials that follow Let age excuse a child sex a woman saith Seneca in the Books where he is angry with Anger God himself in the wars of the Hebrews even after peace offerd and refus'd will have women and infants spared besides a few Nations excepted by special command against which the war that was was not of men but of God and so 't was called And when he ordered the Madianitish womē to be slain for a proper crime of theirs he excepted Virgins that were untoucht Yea when he had very severely threatned the Ninivites with destruction for their most heinous sins he suffered himself to be restreined by compassion upon many thousands of that age that knew not good from evil Like whereunto is that sentence of Seneca Is any one angry with children whose age doth not yet discern the differences of things If God hath done and determined thus who may without injustice slay any men of what sex or age soever without any cause being the giver and Lord of life what is fitting for men to do to whom he hath given no right over men but what was necessary to human safety and the conservation of society Add here concerning children the judgment of those Nations and times wherein equity most prevailed We have Arms saith Camillus in Livy not against that age which even in taking of Cities is spared but against armed men And this is among the Laws of War he means the Natural Laws Plutarch speaking of the same thing There are saith he among good men certain Laws of War too VVhere note that among good men that you may descriminate this Law from that which is customary and consisteth in impunity So Florus saith It could not otherwise be without violation of integrity In another place of Livy An age from which Soldiers in their anger would abstein And elsewhere Their cruel wrath went on even to the slaughtering of infants Now that which hath place in children always that have not attained the use of reason for the most part prevails in women that is unless they have committed something peculiarly to be avenged or do usurp manly Offices For it is a sex as Statius speaks that hath nothing to do with the sword Alexander in Curtius I am not used to wage war with Captives and Women he must be armed to whom I am an enemy Grypus in Justin None of his Ancestors among so many domestick and external wars did ever after victory shew cruelty to women whom the softness of their sex exempteth from perils of War and the rough handling of the Conquerors Another in Tacitus He carried arms against armed men not against women Valerius Maximus calls it barbarous and intolerable cruelty which Munatius Flaccus shewed to Infants and Women Latinus Pacatus saith Women are a sex which wars do spare Papinius hath the same of old men They are a company violable by no arms The same is to be determined universally of males whose course of life abhorres from war By the Law of War
Country no other than a hostage and so much the better as it is more fertile wherefore also spare it as much as is possible lest despair make them more hard to be conquerd The same was the Counsil of Agesilaus when against the opinion of the Achaians he left the Acarnans a free seeding time saying the more they sowed the more desirous would they be of Peace The Satyrist to our purpose After such harms And losses suffer'd what remains but Arms Livy speaking of the City taken by the Galls It pleased saith he the Chief of the Galls that all the houses should not be fired that the remainder of the City might be a means to soften and bow the heart of the enemy Add that this Moderation while the war continues maketh shew of great confidence of the victory and that clemency is apt of it self to move and win the mind Annibal in Livy makes no spoil in the fields of Tarentum It appeared saith he 't was not done out of the modesty either of the Soldiers or of the Captain but to gain the affections of the Tarentines For like cause Augustus Câ—…sar in Pannonta absteind from rapine Dion tells us why He had hope by 〈◊〉 means to win them without violence To motheus by that care of his aforemâ—…tion'd beside other things armed at the good will of his Enemies as Polybius observeth Of Quintius and the Romans with him Plutarch when he had related what we have said of him above addeth They had the fruit of this Moderation a little after For they were no sooner come into Thessaly but the Cities yielded to him and the Greeks inhabiting between Thermopilae wished for him with ardent desires but the Achaians renouncing the friendship of Philip associated themselves to the Romans against him Of the City of the Lingones which in the war waged against Civilis the Batavian and his fellows by the conduct of Cerealis under the Authority of Domitian had escaped a feared spoil Frontinus saith Because beyond expectation it was inviolate and lost nothing being reduced to obedience it gave him seventy thousand armed men Contrary Counsels have also contrary events Livy gives us an example in Annibal His mind Precipitous to avarice and cruelty carryed him to the spoil of what he could not keep himself that the enemy might not enjoy it That policy was dishonorable and disprofitable to him both at the beginning and the end For not only the minds of them that sufferd unworthy things were alienated from him but of others too for the example reached â—…nto more than the calamity did Surely it is most true which is noted by some Divines that it is the office both of the Highest powers and of Captains who will be accounted Christians both in the judgment of God and men to supersede the violent direptions and spoiling of Cities and all like violences as those that cannot pass without the calamity of many Innocent persons and oft-times little avail to the main of the War So that Christian Goodness almost always â—…ven Justice it self for the most pare abhors them Greater certainly is the bond of Christians to one another than that of the Grecians was by whose wars that no City of Greece should be destroy'd was provided by a Decree of the Amphictyons And the Antients deliver that Alexander of Macedonia never did repent him more of any thing he had done than of the overthow and ruine of Thebes LII A Temperament about things taken NEither ought the Capture of hostile Goods in a just War be judged without sin or free from the charge of restitution For if you look upon what is done rightly it is not lawful to take or have farther than the enemy is indebted except that also for necessary security things may be detein'd but to be restored in themselves or the price after the hazard is past Now the Goods of subjects may be taken not only for the obteining of the primary debt whence the war began but of a debt arising after it according to what we said in the beginning of this part And so is it to be understood which some Divines write Things taken in war are not equalled with the Principal debt that is there must be also satisfaction made according to a true Judgment for that damage that was done in the war it self So in the disceptation with Antiochus the Romans as Livy relates judged it equal that the King by whose fault the war was raised should pay all the cost T is in Justin To bear the charge of the war by a just Law In Thucydides the Samians are condemned to pay the expences of War And elswhere often Now that which is justly imposed upon the Conquered is also by a war extorted from them justly But yet we must know as we have mention'd afore the rules of Charity are of larger compass than the rules of Law He that has a flourishing estate will be guilty if he thrust his needy debtor out of all he hath that himself may be paid to the utmost farthing and much more if that same debtor came into that debt through his own goodness as if he hath been Surety for his friend and himself hath converted none of the mony to his own use For as Quintilian's Father saith a Sureties danger is to commiserated And yet so hard a Creditor doth nothing against right strictly taken Wherefore Humanity requires that to those who are without fault of the war and who are bound no otherwise than as sureties such things be left as we can want more easily than they especially if it be evident that they shall not recover from their Commonwealth what they have in that manner lost Hither perteins that saying of Cyrus to his Soldiers after he had taken Babylon It will not be unjust for you to possess what you have gotten but it will be your Humanity to leave something to the enemyes This is also to be noted seeing this right over the goods of innocent Subjects is introduced for relief so long as there is hope we shall get our own easily enough from the principal debtors or from them who by not doing right do of their own accord make themselves debtors that while to come unto them who are without Fault though it be granted not repugnant to strict right doth depart from the rule of humanity Examples of this humanity are frequent in history especially in the Roman as when Lands were given to the Conquered on condition they should come into the Commonwealth or when a small part of the Lands for honor sake was left to the old Possessor So Livy saith the Veientes were mulcted a part of their lands by Romulus So Alexander the Macedonian gave the Uxians the Lands they had been masters of for Tribute So you shal often read of Cities deliverd up and not spoiled and above we have said not
to Rostoch He diverts to Balemannia and sends for Dr. Stochman the Physician who observing the weakness of his body by reason of age shipwrack and the incommodities of the journey presageth the end of his life to be at hand The next day after his entrance into this City which in the old style was the XVIII of August about IX at night he requesteth me to visit him I came and found the Man approaching neer to the agony of death I saluted him and signifyed how happy I should have been to have had conference with him had he been in health His answer was Ita Deo visum fuit Thus it hath pleased God I go on and advise him to compose himself to a happy departure to acknowledge himself a sinner and repent of whatsoever he had done amiss and when as we discoursed I had mentioned the Publican confessing himself a sinner and praying God to be mercifull unto him He answers Ego ille sum Publicanus I am that Publican I proceed and remit him to Christ without whom there is no salvation He replyes In solo Christo omnis spes mea est reposita In Christ alone is placed all my Hope I rehearsed with a loud voice that German Prayer in the German tongue Horr Jesu wahrer Mensch und Gott c. He with closed hands and a low voice said after me When I had done I asked whether he had understood me He answers Probe intellexi I understand you well Afterward I repeated some passages out of the Word of God which dying men are wont to be put in minde of and I ask again whether he understood me I hear your voyce saith he but hardly understand what you say Then he became speechless and in a short time after gave up the Ghost just at twelve midnight Thus have you the Catastrophe of Grotius the last end of this excellent Man's Life His dead Body was committed to the Physicians His Bowells were put in a Vessel of Brass and that they might be laid up in the most honourable place of our principal Church dedicate to the Virgin Mary I easily obtained of the Governours Let him rest in Peace I have received from a good hand that our Author a little before his death declared his Affection to the Church of England and his Desire to end his dayes in the Communion of the same These Collections put together in some haste til One more Able arise to do honour to this Great Man's Memory be pleased Gentle Reader favorably to accept from the Translator Clement Barksdale THE END ERRATA PAg. 1. lin 1. * State p. 6. l. 3 are often l. 4. dele * pag. 94. l. 6. was included in p. 400. CXIII and so restore the following numbers p. 448. l. ult joyning SCRIPTURES EXPLANED Ps. 19. Rom. 7. LAw pure and holy 10 Gen. 14. 20. Blessed be the most high God 15 Deut. 20. 10. Laws of waging war 16 Gen. 9. 5 6. And surely your blood 1â— Gen. 4. 14. Whosoever findeth me 1â— Matth. 5. It hath been said to them of old 23 Lev. 19. 18. Thou shalt hate thine enemy 23. 329. Lev. 24. 20. An eye for an eye 23 Rom. 3. 27. Law of works 24 Rom. 7. 14. Spiritual Law 24 1 Tim. 2. 1. Prayers for Kings and for all 25 Rom. 13. 4. He is the Minister of God 26. 27. 47. Psal. 2. Kiss the son 26 Act. 26. King Agrippa 28 Lu. 3. 14. Be content with your wages 29 Mat. 4. 17. Kingdom of heaven 29 Mat. 11. 13. The Law continued unto John 30 Mat. 5. 17. Not to dissolve the Law 32 Act. 13. Sergius Paulus 34 Rom. 13. Tribute to whom tribute 35 Act. 25. 11. I refuse not to dy 35 Phil. 4. 8. Whatsoever things are honest 36 Eph. 2. 14. Partition wall 36 Esay 2. 4. Swords into Plowshares 37 Mat. 5. 38. Turn the other cheek 39 Mat. 5. 39. If any man will sue thee 39 Mat. 5. 44. Love your enemies 43 Rom. 12. 17. Recompence to no man evil 46. 73 2 Cor. 10. 4. Weapons of our warfare not carnal 48 Eph. 6. 21. We wrestle not against flesh and blood 49 Jam. 4. 1. From whence came Wars 49 Exod. 22. 2. If a thief be found 68 Mat. 26. 52. Put up thy sword 69. 74 Lu. 22. 36. Buy a sword 72 Joh. 18. 8. Suffer these to go away 73 Deut. 17. 14. I will set a King over me 91 Jer. 25. 12. God judgeth Kings 96 2 Sam. 24. 17. What have the people done 98 Dan. 6. 8. Laws unchangeable 113 Psal. 72. 1. Judges Gods 119 1 Sam. 8. 11. Kings right 138 Rom. 13. 2. Whosoever resisteth 139 1 Pet. 2. To the King as supreme 148 1 Sam. 15. 30. Duty of Peers 148 1 Pet. 2. 13. Human ordinance 151 1 Sam. 22. 2. Davids armed men 152 1 Sam. 26. 9. No man can lay hands 154 1 Pet. 4. 13. Suffer as Christians 156 Mat. 10. 39. He that loseth his life 161 2 Chron. 23. Athalia dethroned 167 Jud. 3. 15. The Fact of Ehud 169 2 King 9. Jehu's fact 170 Matt. 22. 20. Tribute to Caesar. 170 2 King 18. 7. Ezechia submits 197 Gen. 1. 29. Mans right 198 Gen. 13. 21. Wells proper 202 Heb. 6. 18. Impossible for God to deceive 224 Jona 4. 1. God repents 225 Josh. 9. Joshua's Oath 226 Matt. 15. 5. Korban â—…0 233 1 Tim. 5. 3. To honour to 〈◊〉 231 Gen. 42. 15. By the life of Pharaoh 233 Mat. 23. 21. He that sweareth by the Temple ibid. Ezech. 17. 12. Oath to the Babylonian 236 Psal. 15. Having sworn to his hurt 238 Mat. 5. 34. Swear not at all 242 2 Cor. 1. 20. Yea and Amen 243 Deut. 23. 7. League with Idolaters 247 Deut. 22. 1. The Jewes neighbour ibid. 2 Chro. 16. 2. Ahazia did wickedly 251 2 Sam. 24. Davids muster ibid. Mat. 5. 45. He maketh his sun 252 2 Cor. 6. 14. What concord hath Christ 253 1 Cor. 10. 21. Ye cannot be partakers 245 Mat. 6. 33. First seek the Kingdom 255 1 Cor. 12. 18. Members of one body 256 2 King 18. Rabshake's message 279 Num. 25. 4. Hanged on a tree 303 1 Sam. 31. 4. Saul's death 307 Joh. 8. 7. Whosoever of you is without sin 311 Proverb God made all things for himself 313 Mar. 14. 21. It had been better 319 1 Joh. 5. 16. Sin unto death 320 Numb 25. Phine as zeal 327 Mat. 5. 44. Do good to enemies 329 Mat. 6. 14. Forgive all 331 Heb. 2. 23. Sins against the Gospel 334 1 Cor. 11. 3. Self-punishment ibid. Matth. 7. 1. Judge not 338 Lu. 23. 34. Pather forgive them 349 Mar. 10. 19. Defraud not 352 Heb. 11. 6. He that cometh to God 365 Lu. 14. 23. Compel them to come in 372 Gal. 4. 29. Persecuted him 378 1 King 14. Children of Saul 402 Deut. 24. 16. Not put to death children 404 1 Cor. 5. 12. Those that are without 417 Rom. 5. 6. Christ dyed for enemies 435 Jer. 27.
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
work is not done without injury of the Gods The walls of Cities and Temples of the Gods parâ—…ake in the sâ—…me ruine the Citizens and Priests equally slaughtered nor is the rapine of sacred riches and profane unlike So many therefore are the sacrileges of the Romans as their trophies So many are their triumphs over Gods as Nations c. †Poâ—… l. cum loca D. de religiosis * Cic. Verrina 4. * Marsil Pataâ—… in defensore pacis c. 5. p. 2. Nicol. Boerius Decis 69. num 1. Bâ—…ssius in crim de foâ—…o competente num 101. Cothman cons. 100. num 30. * Part. 1. 〈◊〉 42. pag. 88. Cui convenit illud in Amphiâ—…uone Plauti urbem agrum aras socos seque 〈◊〉 dedevent Deinde Dedeâ—… se divina humanaque omniâ—… †In the necessity of times sacred things were converted to uses of war by Pericles under promise of making restitution Augustus borrowed money out of the Treasury of Temples Appian Civil 5. Heraclius in extreme need turned the Church-plate into coyn but afterward restored the price as Theophanes relates See the Oration of Laurent in Bemb l. 6. †Pausan. Areadicis * Vide Cromerum lib. 17. Procop Persic 2. Deut. 7. 5. Antiquae hist. 4. 〈◊〉 libro contra Ap. altero Tacit. hist. 5. 1. Macc. 5. 10. Ascon pad in Verr. 3. †Diogenes Laertius in his beginning saith Images are condemned by the Magi. De Civil Deil. 18. cap. 45. Pro Flacea Dan. 5. 〈◊〉 * Bell. Iud. l. 6. c. 24. 34. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * L. Sepulchra D. de sepulc violato * Part. a. n. 73. Cap. 6. * And food to his servants and part of the spoyl to his companions vide Josephum in hac historia Hebr. 7. 4. Gea 14. Gen. 48. 22. * The Chaldee interprets it done by Prayers to God who by a singular favour preserved Sichem for Jacob and his posterlty Gen. 34. 30. 49. 6. Deut. 20. 14. 1. Par. 5. 20 21 22. 2. Par. 14. 13. Jos. 22. 8. 〈◊〉 Sam. 30. 26. De benef 3. 37. Philo de diris Xen. 5. de instit Cyri. Sophist Com. 4. 1. Polit. †Apud Plutarch in vita Alex. Ea quae victi fuerant esse appellari debent Victoris Ibidem Vincentes etiam ca quae hostium sunt sibi acquirere Diodorus Siculus excerptis Peiresian n. 467. Quae armis quaesita essent parta belli jure non diâ—…tenda Etiam Clemens Alexand. ait res hostium rapi acquiri belli jure Strom. 1. Liv. lib. 39. L. naturalem §. ult D. de acq rerum dom tit de rer dio Hist. Gr. 3. L. Pomponius D. de acq rer dom L. postlim ¶ postliminio D. de capt l. ult Ib. l. postlim ¶ in bello d. tit Inst. de rer divis ¶ item ea Inst. d. loco l. naturalem ¶ item de acq rer dom Consulatn maris c. 283. 287. Constit. Gallicae lib. 20. tit 13. art 24. Corn. de Lap. in Gen. c. 14. Molin disp 118. L. quod meo D. de acq vel amit poss * By land also the same is observed as you may learn out of Thuanus l. 113. in an 1595. Vid. Alb. Gent. Hispan Adv. l. 3. * Territorium à terrendis hostibus Sic. Flac. à terendo Var. à terra Frontin à terrendi â—…ure Pomp. Xea lib. de Vectigal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 †De malè obita legatione * Consul maris c. 273. †Neither are the ships of friends to be made a prey because of the enemies goods unless it be by consent of the Masters of the ship L. Cotem D. de Publicanis Rodericus Zuarius li. de usu maris Consil. 2. 〈◊〉 6. And so I think the Laws of France are to be understood which subject ships and goods to the prey for one another Otherwise the things alone become a prey Meurs Danic lib. 2. So in the War of the Venetians with the Genuans the Greek ships were seaâ—…ched and the enemies hidden there drawn forth Gregoras lib. 9. vide Crantzium Saxon. 2. Albericum Gentilem Advâ—… Hispan lib. 20. Jud. 11. 23 24 27. 1 Sam. 30. 20. †So Resin King of Syria gave a City which was the ldumaeans not to them but to the Syrians to be inhabited as the Masorets read 2 Reg. 16. 6. Halicarnass l. 6. De Veiis idem in Romulo narrat Plutarchus Halic l. 8. Lib. 41. Mithrid Civil 1 Lib. 40. Cap. 7. L. Libertus §. 1. D. de statu hom L. postlim ¶ 1. D. de captiv L. in bello D. de captivis * Philo Multi viri boni variis casibus nativam libertatem amiserunt Pueros bello captos abducere 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocat Oppian †L. servorum ¶ 1. D. de statu hominum 1 Cor. 5. L. X. D. de his qui sui sunt juris Instit. de his qui sui Donat. ad Ter. And. A. 1. S. 1. Quid non justum domino in servum Instit. per quas person ¶ item vob L. Pupillus D. de V. S. vide Servium ad 5. Aen. ubi originem vocis saltem explicat L. Lex Naturae D. de statu hom Caius JC. lib. 2. rerum quotidian Item quae ex hostib capiuneur jure gentium statiâ—… capientium flunt adeo quidem ut liberi homines in servitutem deducantur Deut. 23. 15. Vide praeceptorum vetantium 180. †The Essenes also from whom the first Chrâ—…stians took beginning See Josephus Bart. in l. hostes D. de capt Covaâ—… in c. peccatum p. 2. 〈◊〉 11. n. 6. †Greporas lib. 4. Mos hic est ab antiquo deductus ad posteros propter fidei consortium ut res quidem in praedam vertere liceat homines autem nec captivos facere nec interficere exâ—…ra praeliâ—… tempus * Plato 5. de Repub. * Chalcocondyl lib. 3. Leunclav lib. 3 17. Busbequius epist. exoticatum 3. Bart. in l. nam serv. D. de Reg. gestis Bâ—…ër decis 178. Const. Reg. Hisp. lib. 8. tit 26. pag. 2. Cap. 8. Apologet. †Minio in orat ad Romanos apud Liv. l. 35. Cur Syracusas aâ—…que in alias Siciliae Graecas urbes Praetorem quotannis cum Impâ—…rio virgis securibus 〈◊〉 Nihil a'iud prosecto dicatis quam armis super at is vos iis has leges imposuisse * De De bell Gall. * Lib. 1. †Alexander after the Battell at Gaugamel was saluted King of Asia The Romans said what Syphax had was theirs by the Law of War Ap pian But when the Hunni said the Gepidae were theirs because they had taken their King the Romans denyed that because the Gepidae had rather a Prince than a King nor were they in his Patrimony Menander Protector †Part. 1. n. 47. Lib. 7. de rep * Alexandrides 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tacitus non dominationem servos sed rectorem cives cogitaret Xenophon saith of Agesilaus that when
The like goodness of Tiberius a Christian Emperor toward the Persians is commended by Menander Protector of Sisebutus by Mariana and of Sanctius King of Castile Lib. 11. 2. Cyropaed Vita Dem. Strab. l. 7. * Diod. Sic. in excerpt Cap. 15. Vict. de jure belli n. 38. 59. Jugurth Derepub l. 7. c. 14. 15. Nic. 10. c. 7. De ossic 1. Tho. 1. 2. q. 40. art 1. ad 3. * Alexand. Imp. Artaxerxi Persae Manendum cuique intra suos sines nibil novando neque debere quenquam incerta spe sublatuns bella incipere sed suo esse contâ—…ntum De Ciâ—…t Dei liâ—… 4. 15. †Cyril in his 5. against Julian commends the Hebrew Kings for this that they were content with their own bounds Am. 1. 13. Lib. 2. de Ira. cap. 34. Annal. 5. L. in orbe D. de flat hom L. Roma D. ad munic Claudian Hujus pâ—…ficis debonius moribus omnes Quod câ—…ncti gens una sumus * Seneca Troad Hostis parvi 〈◊〉 lacry 〈◊〉 Suscipe diâ—…u rector hâ—…enas Patrioque sede cel sus 〈◊〉 Sed sceptra fide meliore cene †Ael l 4. 5. †Herod lib. 7. * Pipiuus to A. stolphus Longobard * De clem 1. 21. The whole place is worth reading where he also calleth it a triumph after victory Pompey left Tigranes a part of his Kingdom Eutrop. l. 6. Liv. lib. 32. * Vid. Polybium exc Legat. n. 6. Mithridat Apud Tacitum est Zo sini victo nihil ereplum Annal. 12. * Yet was that remitted afterwards Plut. Flaminio Lib. 1. ad Q. fr. epist. 1. Hist. 4. * Vide de Persis Agathiam lib. 4. Plutarch qu. Rom. 15. * Livius facilius parari singula quam teuevi universa Augusti dictum apud Plutarchum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * Augustus is prais'd in Dion that he was not ambitious of more but to keep whaâ—… he had Thuc. 1. Isoc Pan. Demosth. orat de cheâ—…s Annal. 6. Hist. 2. †Eidem Antiochus inservientium regum ditissimus Strabo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lucanus Atque omnis Latio quae servit purpura ferro Vid. Panegyr Mariâ—… dict †Such Kings were of old in Italy under the Empire of other Kings Serv. ad 10. Aen. So among the Turks Leuncl lib. 18. * Part. 1. * Philo in his Embasly to Caius saith Augustus had as much care to keep the Laws proper to every Natâ—…on as the Roman †Vid. ep 93. Plin. sâ—…q Tâ—…aj lib. 10. Cic. l. 6. ad Aâ—…tic epist. 5. 21. * Melius est ibi aliquem coli Deum quam nullum Severus So the Gotths in Procop. Gott 2. 〈◊〉 they forced none to their Religion Xenoph. Cyrop lib. 4. Vit. Agric. Liv. lib. 8. Liv. lib. 8. Diod. lib. 13. †Scythae Alexandro Inter Dominum servum nulla amicitia etiam in pace belli tamen jura servâ—… Curt. lib. 7. Salubri Taciti Sententia Bellorum egregii fines quoties ignoscendo â—…ransigitur In Caesatis Dictatoris epistola est Hac Nova sit ratio vincendi ut misericordia liberalitate nos muniaâ—… The Lacedemonians in Thucydides lib. 5. We are of opinion quarels are turned in firm concord thus not if one in revenge and taking advantage by his success impose upon others a necessity of sweating to unequal articles but if when he is able to do so he use as much equity now as valour before and compose matters with as much moderation as may be L. traditio D. de acq dom Lib. 5. de benef cap. 12. Liv. lib. 3. Polyb. hist. l. 3. Plut. Apoph App. Pun. Adde Valer. Max. l. 1. c. 1. n. 6. Verrina de signis Strabo l. 13. Gen. 14. 16. Gen. 14. 21. * Benè hoc notavit Jacchides ad Daniel 5. 17. Sulpitius de Abrahamo Reliqua his quibus erepta erant reddidit Ambros. lib. 1. de Patriarchis Ideo quoniam sibi mircedem ab homine non quaesivit à Deo accepit Non multum hinc distant facta Pittaci Timolcontis Pittacus Milyâ—…enaeus 〈◊〉 recuperatâ—… agriaâ—…midia pars conâ—…su omnium offerretur avertit animum ab eo inâ—…re deforme sudi-â—… virtutis gloriam magnitudine praedae minuere Val. Max. l. 〈◊〉 c. 5. n. 1. De Timoleonte Plutarch vid. †The Exiles of Saâ—…um after six years were restored by the Romans Antonius 〈◊〉 liberty those who were brought into servitude in the War of Cassius and restor'd their Goods to the Owners * Liv. l. 2. 〈◊〉 1. 72. Xenoph. Hist. Gr. 3. Liv. lib. 34. Ciecro Offiâ—… 2. * Quod secie rex Ferdinandus memorante Mariana l. 29. c. 14. Cap. 17. Part. 2. * The like testimony Plutarch gives to Tâ—…tus Q. Flaminius †And Plutarch saith when he heard of his Souldiers license he sâ—…a ed up 〈◊〉 words and punishâ—… every one that brake the Seal 9 2. * Cassiodor 5. 10. 2. 13 25. †Claudian Tanta quies tantusque metus servator honesti Te moderante suit nullis ut vinea surtis Aut seges erepta fraudaret messe colonum * Th's virtue is oft commended in Belisarius by Procopius his Companies and witness of his actions See to this purpose his excellent speech to his Souldiers near Sicily when he marched into Africk and the narration of his march through Africk Vandal 1. The like praise of the Almains in their expedition to the Holy Sepulcher see in Nicetas Manuele Comneuo Gregoras l. 9. commends the same in the Venetians †Plin. Hist. Nat. 26. 4. Cúrve Romani duces pâ—…imam semper in bellis commerciorum curam hâ—…buêre Cassiod 4. 13. Habeat quod emat ne cogatúr cogitare quod auferat Similia habet 5. 10 13. * L. 18. Vide Ammianum lib. 21. * Vop Aurel. * Xenoph. Expedit lib. 6. Luk. 3. 14. * Ambros. ad hunc Lucae locum Iccirco stipendia constituta militiae ne dum sumtus quaeritur praedo grassetur Sunt egregiae ad bane rem Constitutiones apud Greg. Turon lib. 2. 27. Frederici primilegom sic resert Guntherus Si quis pacificae plebis villasve domosve Vsserit ab rasis signabitur or a capillis Et pulsus castris post vulnera multarecedet †Sic Guicciard disserit lib. 16. * Lib. 4. c. 1. See Spartian of Niger's severity for a stoln Cock De Praet Vrb. Aegid Regius de act supera disp 31. dub 7. n. 95. * Exemplum nobile vide apud Parutam lib. 8. Lib. 1. Lib. 3. Gotth 1. * Demostâ—…enes Qui ea facit machinatur quibus ego capi possim etiamsi nec seriat nec jaculum emittat hostis mihi est * Liv. lib. 37. Plut. Bruto Liv. lib. 35. * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cap. 18. Offic. 1. Xenoph. Cyrop Plut. Quaest. Rom. 39. Marcello De ira c. 9. L. descrtorem D. de re milâ—…t Liv. l. 7. Manliana Imperia * Ita Avidius Cassius causam sententiae suae reddebat Eveniâ—…e potuisse ut essent insidiae Volcatius
the league made by Solomon is said to be made according to the wisedom which God had given him Indeed the Law of Moses specially commands to do good unto their Countrymen Moreover the peculiar diet and course of life prescribed to the Jews did scarce admit any familiar conversation with other people Yet doth it not follow hence either that it was not lawfull to do good to foreiners or that it was not also laudable which the ill Interpretation of later Masters not rightly hath collected thenee And therefore Juvenal saith of the Jews That they would not shew the way to any differing from them in Religion Where by the example of shewing the way are signified easy courtesies and benefits that may be done without any trouble or charge such as Cicero and Seneca say are to be done to strangers whom we never saw before To the same purpose is that of Tacitus of the same Jews Among themselves they are of obstinate faith and very mercifull to all others they bear an hostile hatred So in the New Testament we often read that the Jews have no dealing with other Nations and Apollonius Mola objected to them that they admitted not those that had different opinions of God nor had any thing to do with men of another institution But that this is not the sense of the Law Christ hath taught us by his own example when being every where most observant of the Law he refused not water from the Samaritan woman And David long before sought for refuge among irreligious people no where reprehended for it Solomon in Josephus dedicating the Temple and praying that God in that place would hear also the prayers of strangers saith We are not of an inhuman disposition nor ill affected to those that are not of our own Nation From this rule are to be excepted not only the Nations before mentiond but the Ammonites too and Moabites of whom it is written Thou shalt not seek their prosperity so we turn it rather than their peace nor their good all thy days In which words beneficent leagues with them are forbidden and not a right of War allowed or to be sure which is the judgment of some Hebrews peace is forbidden to be asked of them not to be accepted when t is offerd Certainly a right of War upon the Ammonites is denyed the Hebrews Deut. 2. 19. Nor did Jephtha carry arms against them but after he had tryed the ways of an equal Peace nor David till he was provoked by cruel injuries It remains that we enquire about society in War That this also before the Law was not unlawfull with prophane Nations appears by the example of Abraham aiding the wicked Sodomites with his arms Nor do we find any thing in this matter generally changed by the Law of Moses And this we see to have been the opinion of the Asmonaeans being both skilful of the Law and very reverent as t is evident by their Religious observation of the Sabbath no other use of arms being permitted but only for self-defense And these yet made a league with the Lacedemonians and Romans by the assent of the Priests and people yea and publickly offerd Sacrifice for their safety Instances to the contrary have peculiar causes For if beside those that were expressed in the Law God had signified by his Prophets any Kings or Nations to be odious to him and condemned to an overthrow to undertake the defense of them or to joyn forces with them was without doubt impiety Hither perteins that of the Prophet to Jehosaphat touching the King of Israel shouldest thou help the ungodly and love them that hate the Lord therefore is wrath upon thee from before the Lord. For Michaia the Prophet had already foretold an unhappy issue of the War And that of another Prophet to Amaziah O King let not the Army of Israel go with thee for the Lord is not with Israel to wit with any of the Children of Ephraim Now that this comes not from the nature of the League but from some peculiar quality of the person is evinc'd even hence because Jehosaphat was heavily rebuked a curse also being added for this that for commerce sake he had joyned himself with Ahaziah King of Israel and had entred into such a society as David and Solomon had made with Hiram whom we have said to have been for that reason partly not reprehended partly commended For what is added that Ahaziah did wickedly ought to be referred to his whole life for which God was offended with him and with all his enterprizes as this history is explained in the book entitled Clement's Constitutions Moreover this is to be noted that their cause who being sprung from Jacob had forsaken God well known unto them was worse than the cause of strangers For against those Revolters the rest of their Countrymen were armed by a Law extant Sometimes also Leagues are blamed for some vice of the mind wrence they did proceed so was Asâ—… reprehended by the Prophet for betaking himself to the society of the Syrian upon distrust of God which he had shewed in sending to the Syrian things consecrated But the same King was reproved too because he had plac'd his hope not in God but in Physicians Wherefore it doth not from this history more follow that it is evil by it self or generally to contract society with such as the Syrians were than to consult with Physicians For many things not unlawfull are vitiated by the mind as David's muster and Ezechia's shewing of his treasure So elswhere confidence put in Egypt is reprehended when it was lawful nevertheless for Solomon to contract affinity with the Egyptian To all which this is to be added that the Hebrews under the state of the old Law had express promises of victory if they kept the Law the less need had they to have recourse unto human aids Lastly there are indeed extant in Solomons Proverbs Sentences not a few of shunning the society of wicked men But these are the Advisos of prudence not Precepts of Law and those very Admonitions as most moral sayings are capable of very many exceptions XLIX Nor are they forbidden by the Evangelical Law NOw the Law of the Gospel hath changed nothing in this business yea it hath a more favorable aspect upon leagues whereby aliens from Religion on just cause are relieved because it hath not left beneficence to all sorts of men upon occasion given only free and laudable but hath put it under precept For by Gods example who maketh his Sun to arise upon the good and evil and sendeth rain to refresh them both we are commanded to exclude no kind of men from our benefits Tertullian said well So long as Israel only was his people God did justly command mercy toward their brethren alone But after that he gave unto Christ the Nations for his inheritance and