we make not the act void Thus the old Pimp in Terence Leno sum fateor Pernities communis Adolescentûm Perjurus Pestis tamen tibi à me nulla est orta injuria A Bawd I am Youth 's Common Pest 't is known Perjur'd yet wrong by me Thou hast had none It was no ill Plea then that Nabis in Livy made when his tyranny was objected against him by Quintius Flaminius Concerning the name Tyrant I answer That whatsoever I am I am the very same I was when thou O Titus Quintius entredst in League with me And by and by These things whatsoever they are I did when ye contracted friendship with me Whereunto he presently adds Si quid ego mut âssem mihi inconstantiae meae cum vos mutetis vobis vestrae ratio reddenda est If I had changed I ought to have given the reason of my inconstancy but seeing it is you that change you ought to give the reason of yours Not much unlike unto this is the Answer that Pericles in Thucydides gives unto his Subjects Our Confederates we shall permit to enjoy their own freedom and to live by their own Laws if they did so when they first entred into League with us IV. Fear not to be objected if the Promiser were not himself affrighted Another Objection may be made which I have heretofore hinted * Lib. 2. c. 11. § 7. namely That he that by fear hath extorted a promise ought in Justice to release the Promiser as having by his injustice damnified him that is by such an act as is repugnant both to the nature of humane Liberty and to the nature of the act it self for all promises that bind ought to be free This though in some cases true yet is not to be extended to all promises that are made to Thieves for that the Promised be bound to free the Promiser it is requisite that he to whom the promise was made should have extorted the promise by an unjust fear But in case a man shall come and promise to pay the ransome of his Friend and thereby deliver him out of Bondage he is bound to perform it because there was no impression of fear upon this man who in the behalf of his Friend came voluntarily to make this Contract V. What if the promise were bound by Oath Whereunto we may add That he that is compelled even by an unjust fear to make a promise may be obliged to perform it if he confirm that promise with an Oath for thereby as we have shewed before he stands bound not unto men only but unto God against whom no exceptions can be admitted But true it is notwithstanding That by such a sole promise though confirmed by Oath the Heir of the Promiser stands not obliged for those things only descend to the Heir which by the original Right of Dominion may pass from man to man in ordinary Traffick But those things that are due unto God cannot as such be included amongst these Moreover here we must again repeat what we before delivered Lib. 3. c. 4. §. 10. That if a man do haply break his faith with a Thief whether sworn or unsworn he shall thereby incur no punishment amongst other Nations For generally all Nations in detestation of these men whom they account as common enemies to humane Society are pleased to connive at whatsoever is though unjustly done against them VI. This applied to Subjects that make War But what shall we say concerning the War that Subjects make against their King or against such as have the Supreme Authority Though they may haply have a cause not in it self altogether unjust yet that they can have no Right to act by force against their Prince we have elsewhere shewed * Lib. 1. c. 4. But yet it sometimes so happens That either their Cause is so notoriously unjust or their obstinacy in resisting so great that it may be severely punished But yet if they be treated with as Rebels or Traitors and therein any promise made unto them the punishment though justly due for their Treason ought not to be pleaded in Bar to the performance of that promise For such was the piety of the Ancients that they durst not break their faith no not with their very Slaves as may appear by the Lacedemonians Aelian 6 7. who were generally believed to have been justly punished for putting their Tenarensian Prisoners to death contrary to their Covenants And it is likewise observed by Diodorus Lib. 11. That the faith given to Slaves in the Temple of the Palici was never broken by any of their Lords Neither will any exceptions of fear be allowed of in this Case if the faith given be by Oath confirmed as we may collect from M. Pomponius the Tribune of the People Sen. de benef l. 3. c. 37. who being bound by Oath punctually performed what he had though compelled by fear promised to L. Manlius VII Of Promises made by Sovereign Princes unto their Subjects But a greater difficulty than any before mentioned may arise from the Legislative Power and from that supereminent Right of Dominion which every City hath over the things of their Citizens and which is exercised in its name by him who hath the Supreme Power therein Which supereminent Right if it extend it self to all that is the Subjects why should it not likewise unto that Right which ariseth from any promise made in War Which being granted then it should seem that all such Promises and Agreements may be null'd and so all hopes of concluding a War unless by Victory would be lost But on the contrary we must observe That this superlative Right is not fit to be put in execution promiscuously at all times but so far forth as it is commonly expedient to the preservation of the publick safety in a Government not Tyrannical but Civil yea even Regal But for the most part it is commonly expedient That all such Promises and Agreements should be fulfilled Very apposite to this purpose is that which we have already written concerning the defence of the present Government adding thereunto That where the publick safety requires that this Sovereign Right should be made use of satisfaction ought to be given out of the publick to such particular persons as shall be thereby damnified as shall be hereafter more fully explained VIII That such promises may be confirmed by the Oath of the City Moreover Agreements may be confirmed by Oath and that not by the King or Senate alone but by the whole Body Politick as Lycurgus bound the Lacedemonians and Solon the Athenians by Oath to observe the Laws they had given them And lest the change of Citizens should in time relax the binding power of this Oath and so at length it be forgotten or left arbitrary this Oath may be every Year renewed which if done the Citizens could by no means recede from their Engagements no though it were for their publick profit For a City hath
is that which governs any City Now a City is a compleat company of free-men associated for the defence of their own Rights and for their common profit That Law that is of lesser extent and ariseth not from the Civil Power though subject unto it is various comprehending under it that of a Father over his Children that of a Master over his Servants and the like That Law which is more extensive than that which is Civil is that of Nations which derives its authority from the joynt consent of all or at least of many Nations I say of many because there is hardly any Law besides that of Nature which also is usually called the Law of Nations that is common to all Nations yea oft-times that which is accounted the Law of Nations in one part of the world in another is not as we shall shew hereafter when we treat of Captivity and Postliminy Now the Law of Nations is proved in the same manner as the unwritten Civil Law is namely by continual use and the testimony of men skilful in the Laws and therefore Dio Chrysostome calls it the daughter of time and experience and to this purpose are the Annals of former ages of singular use XV. The Divine voluntary Law divided The divine voluntary Law is that which is warranted by the express will of God as may be understood by the very word it self whereby it is differenced from the naturall Law which in some sense may be termed Divine also And here that which was said by Anaxarchus in Plutarch though somewhat confusedly may take place namely That God doth not will things because they are just but things are therefore just that is rightly due because he wiâ—s them Now this Law was given by God either to all mankind or to one Nation to all mankind we find that God gave Laws thâ—iâ—e That this voluntary Divine Law was as obliging before the writing of it in â—ooks or Tables as it was or is since is clear for first if the obliging power were only from the time when it was written by Moses they that lived before Moses were no waies obliged by it because till then it was not written Secondly then the obligation must needs extend it self to all the parts of the Law so written and so to every circumstance of the Judaical Sabbath as well as to the acknowledgement of the only true God Neither is it sufficient to say it was written in the times of Adam and Noah it being uncertain unto us now whether there were so Ancient a Record or not much more * whether that which was written were as the Tables of the Law written by the finger of God * Dr. Hammond The Six Laws given by God to Adam and Noah as First that against strange and false worship Secondly that of blessing the name of God that is of adoring invocating and praising God Thirdly that of judgment that is of erecting of Magistrates and requiring administration of Justice Fourthly That of disclosing Nakedness i. e. setting bounds to lust and prohibiting Marriages within such degrees Fifthly That of shedding blood against Homicides And Sixthly That against Theft and Rapine and of doing to all as they would be done unto are no where recorded in holy Writ yet were they as obliging to the Jâ—ws that knew them as any of the written Laws of Moses we shall find them toucht at Act. 15.20 â—ut so surely that had it not been for those writings of the Jews that were never within their Canons nor in ours we of these times had never known to what that reference belonged And as all the Laws that were given to Adam Noah and the rest of the Patriarchs although not committed to writing nor traduced to us yet lost nothing of their obliging power to them to whom they were given so in the times of the new Law although Christ revealed much of his Fathers will in Sermons and other occasional discourses very few whereof are written and those that are were not so written until many years after his Resurrection yet will no man say that because they were not left written therefore they did not oblige his Auditors First Immediately after the Creation of man Secondly in the Restauration of mankind after the Floud and Thirdly in that more perfect reparation by Christ Tâ—ese three Laws do doubtless oblige all mankind as soon as and as far forth as men arrive at the knowledge of them XVI The Law given to the Jews did not oblige strangers Of all the Nations of the Earth there was but one to whom God vouchsafed to give Laws peculiar to themselves which was that of the Jews What Nation saith Moses so great to whom God hath given Statutes and judgements so righteous as this whole Law Deut. 4.7 So likwise Davia The Lord hath shewed his word unto Jacob his Statutes and ordinances unto Israel Non ita fecit genti ulli He hath not done so to any Nation neither have the Heathen knowledge of his Laws Psalm 147. Doubtless then those Jews and among them Tryphon himself in his disceptations against Justine do grosly err who hold That even Foreigners if they would be saved must submit to the yoke of the Mosaical Law For that Law binds none but those to whom it was given and who these are the Preface to the Law it self will plainly declare Audi Israel Hear O Israel saith the Text And every where we read that the Covenant was made with them and that they were chosen to be the peculiar people of God which Maimonides acknowledgeth to be true and proves it out of Deut. 33.4 But even amongst the Jews there always lived some Foreigners being holy men and such as feared God as the Syrophoenician Woman Mat. 15.22 Cornelius Acts 10.2 The Grecians mentioned Acts 18.4 whom they called the pious among the Gentiles such as are termed strangers Lev. 22.25 and a sojourner Lev. 25.47 whom the Chaldee Paraphrast calls an inhabitant that is uncircumcised whereof we may read Exod. 12.45 who was distinguished from a Proselyte who though a Foreigner yet was circumcised as appears bâ— comparing this place with that of Numb 9.14 These uncircumcised Sojourners Maimonides admits may be partakers of the blessings of the life to come St. Chrysostome upon the second to the Romans Rom. 2.9 10. where St Paul mentions the Jew and Gentile wrâ—tes thus What Jew and what Gentile doth St. Paul here mean surely those saith he that lived before Christ as Job the Ninevites Melchisedeck Cornelius c. And what Graecians doth he discourse of Surely not such as were Idolaters but such as worshipped God according to the Law of Nature who setting aside the Jewish Ceremonies religiously observed all things that appertained to an holy life And again The Graecian he calls not him that worshipped Idols but him that was pious and devout though be submitted not to the Jewish Rites And thus likewise doth he expound that of St. Paul To him
servants that had rather be beaten with stripes than to take a box on the Ear. So in another place A reproach saith he is much less than an injury which we rather complain of than revenge there being no punishment assigned unto it by the Law So he in Pacuvius Patior facile injuriam si absit contumelia An injury I can easily digest provided that it be without contumely To the same purpose also is that of Demosthenes The Tongue wounds deeper than the Sword and stripes though grievous yet are more easily born if not accompanied with reproaches And the same Seneca a little after tells us That grief arising from reproach is an affection or passion occasioned by the humbleness of a mind contracting it self by reason of some word or deed tending to our disparagement Against all these passions which seem to invade the tranquillity of the mind Christ fortifies his disciples only with patience so that in case the wrong offered us either in word or deed do not much hurt us it is more magnanimous to overcome them with sufferance and patience than to seek revenge either by force or Law And lest we should be discouraged by that vulgar saying Veterem ferendo injuriam invitas novam By over calmly bearing an old injury we do but invite a new Our blessed Saviour adds that even the second is rather to be endured than the first either repelled or revenged De Statuis 1. because such kind of injuries leave no evil Characters behind them besides what consists in our own foolish conceits For what St. Chrysostom observes is very true Contumelia non ab inferentis animo sed ex judicio eorum qui patiuntur aut sit aut perit A reproach doth either vex or vanish not according to his intention that inferred it but according to the apprehension of him that suffers it To offer the Cheek is an Hebrew phrase implying the bearing of a thing patiently as may be collected from Esay 30.6 and from Jeremy 3.3 Tacitus hist 3. whence the Latines borrowed it as appears by that Phrase so often used by Tacitus Terence and others Praebere os contumeliis is To bear reproaches patiently Ter. Adelph The third Objection is taken from the words following Ye have heard that it hath been Obj. 3 said Thou shalt love thy Neighbour and hate thine enemy But I say unto you Love your enemies bless them that curse you and pray for them that despitefully use you and persecute you Matth. 5.43 There are some that think that these duties of Dilection and Beneficence to our enemies are directly opposite to War and Capital punishments But this objection will easily vanish if we do but understand the very words of the Hebrew Law for the Jews were commanded to love their Neighbours that is Jews or Hebrews equal unto whom were Proselytes but those laws which forbad them to do hurt reached even unto those Strangers that lived among them being uncircumcised Whereof before ch 1. §. 16. as the Talmudists note for in this sence is the word Neighbour there taken as appears Levit. 19.17 being compared with the Verse there following And yet notwithstanding were the Magistrates commanded to inflict Capital punishments upon Homicides seducers of the people to Idolatry and other hainous and obstinate Malefactors So notwithstanding this precept of loving their Neighbours the 11 Tribes did justly make war against the Tribe of Benjamin for their more than barbarous inhumanity Judg. 21. so notwithstanding this Precept did David who is said to fight the Lords battels by force of Arms recover the Kingdom being promised to him from Ishbosheth But admit that the word Neighbour doth now extend it self to all mankind for as much as all are now fellow Denizens all received into the Covenant of Grace and no one people accursed from God yet what was heretofore lawful for the Israelites will be as lawful for us both being obliged to the same duties of Love and Beneficence But you may haply say That the Evangelical Law requires an higher degree of love than the Mosaical Law did Even this also I grant with this allowance that all are not equally to be beloved our Parents and our Children are certainly to be preferred before Strangers and our Neighboâ—â—s before our Enemies 'T is true Adv. Pelag. dialog 1. saith St. Hierom I am commanded to love mine enemies and to pray for my persecutors but yet is it just that I should love them equally as I do my Neighbours and kinsmen Is it equal that I should make no difference between my Friends and mine Adversaries There are degrees of Dilection Surely the Laws of a well ordered Affection do command me to prefer the Righteous before the wicked and the publick safety before the safety of any private person Now out of the very love we bear to the righteous do we put the wicked to death and out of our care to the publick peace do we make war upon those that disturb it If therefore our Saviours precepts do admit of degrees and if the greater obligation do tye us to the stricter duty then are we not bound to preserve the nocent when in so doing we endanger if not destroy the innocent That of Seneca is very well known Tam omnibus ignoscere crudelitas est quam nulli Lib. 1. de clem It is as great a cruelty to pardon all as to pardon none Chrysostom speaking of such humane punishments as are inflicted on the obstinate saith that they proceed not from cruelty but from goodness And St. Augustine affirms That as there is sometimes crudelitas parcens a cruelty in pardoning so there is sometimes misericordia puniens mercy in punishing Those protections therefore that ripen sin by giving too great encouragement to sinners are to be removed For as Totilas in Procopius speaks Peccare See Bo. 2. ch 2◠§. 2. prohibere poenas peccantium in pari pono He that commits a crime and he that hinders a Criminal from due punishment are alike faulty Besides we are commanded to love our Enemies by the example of God himself who causeth the Sun to shine and the Rain to fall as well on the Evil as on the Good And yet doth the same God put a manifest difference between them visiting the sins of such as are incorrigible with heavy judgments in this life and yet reserving much heavier for them to be inflicted in the life to come And thus are all those Objections drawn from those precepts enjoyning Christians to mercy lenity beneficence against war and Capital punishments easily answered For Almighty God though he pleased to make himself known unto us principally by these Attributes of Gentleness Long sufferance Gods patience doth not hinder his justice and Patience John 4.2 Exod. 34.6 yet do the holy Scriptures almost in every page set forth and declare his indignation and wrath against obstinate and contumacious sinners as Numb 14.18 Rom. 2.8
void Now these things do naturally attend any Oath whereby we may easily judge of the Oaths of Kings and of Foreigners one to the other when the Act is not subject to the Laws or Customs of the place XX. How far the Prince's power prevails over his Subjects Oaths Now let us see what power our Superiors namely Kings Princes Masters and Husbands have in things that concern them in their respective Rights over their several Relations And first we must know That the Acts of our Superiors cannot make an Oath that is truly obligatory void so that it ought not to be fulfilled For this would be repugnant both to Natural and Divine Right but because all our Actions are not fully in our own power but so as they have some dependance on our Superiors therefore we grant that our Superiors have a twofold power over us concerning that which is sworn the one directed upon the person swearing the other upon the person to whom he swears The act of our Superiours may restrain the person swearing either before he swears making such an Oath void so far as the Right of an Inferior is subject to the power of his Superior or after he hath sworn by forbidding the performance of it For an Inferior as such could not bind himself without the approbation of his Superiour beyond which he had no power And after this manner by the Jewish Law the Husband had power to null the Vow of his Wife so had the Father the Vow of his Children so long as they were under the power of his government Seneca starts this question What if there should be a Law enacted that no man should do that which I have promised my friend to do for him Which he thus resolves Eadem lex me defendit quae vetat The same Law defends me that forbids me There are also some mixt acts between both as when the Superior doth appoint that his Inferior shall bind himself by Oath in this or that case namely through fear or want of judgment but with this limitation that the Oath shall bind if his Superiour shall approve thereof And upon this foundation are built all dispensations and absolutions from Oaths which Princes in former times did exercise by themselves cap. 35. as Suetonius testifies in the Reign of Tiberius and Vasquius records to have been long used in Spain which power they now remit that it may be with more piety executed unto the Ecclesiastical jurisdiction The power to absolve from Oaths in whom anciently So the act of a Superiour may be directed against the person to whom it is sworn either by taking away that Right which by that Oath he hath gained or if as yet he hath no Right by forbidding him from claiming any Right by vertue of that Oath And this he may do two ways either by way of punishment or for a more publick good by vertue of his Soveraign power And from hence we may learn what power Princes have over their Subjects Oaths where he that swears and he to whom it is sworn are of several Nations But he that upon his Oath hath promised any thing to a Nocent person as to a Thief or to a Pirate as such cannot by way of punishment take away from him that Right he hath given him For then the words of his promise or of his Oath should have no effect at all which inconvenience is to be avoided For the like cause the Right of that which is promised cannot be compensated with the Right of that which was before controverted in case the agreement were made after that Controversie began Yet may an humane Law remove that impediment which it had put in acts of some certain kind in case an Oath either of what kind soever or in some certain form be added As the Roman Laws have done in such impediments as respect not the publick directly but the private benefit of him that swears which if it may be done the act sworn shall stand in force in the same manner as naturally it would if such an humane Law were not either in obliging hi◠faith only or in giving also a Right to another according to the diverse natures of acts which we have already elsewhere handled XXI What manner of Oath Christ forbad And here by the way we must observe that what is said in the Precepts of Christ and by St. James concerning our not swearing at all doth not properly belong to assertory Oaths whereof we have several examples in St. Paul but unto such as are promissory for a time to come James 5.12 Rom. 1.9.9.1 2 Cor. 1.23.11.31 Phil. 1.8 1 Thes 11.9 1 Tim. 11.7 which is uncertain And this is evident by the opposition in the very words of Christ Ye have heard it said to them of Old Thou shalt not forswear but thou shalt pay thy vows unto the Lord. But I say unto you swear not at all And by the reason that is added by St. James That ye be not found to be deceivers For so the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sounds among the Greeks as will appear by Job 34.30 and Mat. 24.57 The same may easily be evinced by our Saviours subsequent words Let your speech be Yea yea Nay nay which St. James thus expounds Let your yea be yea and your nay be nay which is a plain Figure which the Rhethoricians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The former yea signifying the promise made the latter yea the fulfilling of that promise For this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. yea is an Adverb of yielding granting or promising and is exprest by Amen Apoc. 1.7 The Roman Lawyers exprest it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Quidni which is an affirming or an assenting to that which is asked of us It is used for the fulfilling of a promise by St. Paul 2 Cor. 1.20 Where he saith that all the promises of God in Christ are yea and Amen Hence ariseth that old Heb. Adage An honest mans yea is yea and his no is no But on the contrary he whose words and deeds do not accord is by them said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes off and sometimes on as 2 Cor. 1.18 19. 2 Cor. 1.18 19. That is their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 their yea is no and their no is yea the meaning whereof is that they are inconstant unsetled always changing So St. Paul himself expounds it for when they charged him with levity he excuseth himself saying that his speech to them was not yea and no but as to himself it was always yea Festus among the various significations of the word Naucum writes thus Some there are that think that it is derived from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and so signifies a wavering man Now if 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yea and no signifies lightness or inconstancy it will follow that yea yea and no no signifies stayedness or constancy So
not so much to consider whether we have been justly provoked or no as whether the injuries we have sustained be such as will counterballance the expence of so much blood and treasure as will be expended in the prosecution of a War for satisfaction II. Especially when undertaken for punishment only There are many arguments whereby we may be disswaded from exacting punishments For first we see how many failings Parents are willing to wink at in their Children A Father saith Seneca * Sen. de clem l. 1. c. 14. unless highly provoked by many and those hainous offences so that his fears swell higher than his just anger will not proceed against his Son with the utmost rigour and severity Augustus sitting in Council with a Father concerning a punishment to be inflicted on his Son being found guilty of an intended Parricide would not adjudge him to the Sack the Serpent or to Prison but to banishment only whither his Father pleased respecting not so much the person offending as the person offended as knowing that gentle punishments would best appease the wrath of a Father towards his own son Pro peccato magno paullulum supplicii satis est patri Few stripes for great faults Parents will appease Fathers saith Philo do sometimes pass that sentence of exheredation on their own sons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby cutting them off from their own families and kindred but never untill they grow shamelesly and incorrigibly wicked and that their hatred of their Childrens Vices have quite overcome that great and unparallell'd Love which Nature had at first imprinted in them Not much different is that of Phinehas in Diodorus No Father doth willingly punish his Sons Lib. 5. unless the measure of their wickedness do very much exceed the measure of his natural affection Nor that of Andronicus Rhodius No Father can be so unnatural as to cast of his Son if he be not extremely wicked Now whosoever undertakes to punish another assumes unto himself in a manner the person and office of a Governour that is of a Father whereunto St. Augustine alludes when he thus bespake Marcellinus Perform O thou Christian Judge the office of a pious Father who always prefers pardon before punishment Ep. 87. A merciful man saith Seneca is as unwilling to spill another mans blood as he is to spill his own knowing that nature in every man is equally solicitous to preserve its being And therefore It befits men Diod Sic. in fragm who are linkt together by the bands of Consanguinity to be as sparing of other mens lives as of their own for not every man that offends is to be punished but they only that persist in their sins without repentance Let all men that are strangers to our faith saith Chrysostome know that the reverence which we bear unto Christ is so great that it restrains all earthly powers Servants are taught to honour their Masters and Masters to forgive their fellow Servants De Statâ—is l. â— that so our Great Lord and Master may be propitious unto us in that Great Day of Judgment It is usual in Scripture where mention is made of sins and punishments to allay one word with another and to a word that is likely to heighten our anger to add another that may serve to qualifie it If a man shall commit a trespass against his neighbour saith Moses which two words saith St. Augustine a man and a sinner are not conjoined without a Mystery but for this end Aug. citat à Gratian. causa 23. q. 4. Quia peccatur corripe quia homo miserere that if the sinner do exasperate us the word man should presently becalm us for as he is a sinner he deserves punishment but as he is a man he deserves to be pittied So in the new Law thou beholdest a mote in thy Brothers eye Matt. 7.13 A mote that offends us no less than it doth our Brother and our zeal is quickly inflamed to pull it out but when we consider that it is in the eye Vide supra c. 20. §. 12 26 36 and which is more in our Brothers eye then we go warily about it lest whilst we endeavour to pull out the mote we put out our Brothers eye So in another place If thy Brother offend thee Luk. 17.3 the offence provokes us presently to passion but when we consider that he who gives it is Frater our Brother that is quasi fere alter One cast in the same mold with us and scarcely divided from our selves this should instantly appease our swelling passion so that though angry we may be yet revenge we must not The Emperour Julian applauded that saying of Pittacus which prefered pardon before punishments Orat pro Antioch But whosoever will imitate his heavenly Father saith Libanius must glory more in forgiving than in punishing for in nothing do we draw nearer to the Divine Nature saith Cicero than in giving life to them who have deserved death Again such cases there may happen wherein to abstain from claiming our Right is not so much a courtesie as a debt in regard of that love which we owe unto all men though Enemies whether considered in it self or in obedience to the Law of Christ yea and some persons there are whose safety though they should persecute us we are bound to prefer even before our own lives because we know that their welfare is either very necessary or very profitable to the Commonwealth And if Christ did enjoin us to part with our Coat rather than to contend for our Cloak certainly he would have us to neglect much greater losses rather than go to War because there is no contest so destructive as War Sometime again the remedy brings more danger than the disease De off l. 2. c. 2. And as St. Ambrose observes to forego something of our just right is not only liberal but for the most part gainful Aristides exhorting the Grecian Cities to peace perswades them rather to yield than to quarrel for small matters In imitation of good men who had rather sit down with loss than go to Law for trifles And Xenophon will inform us That it is the part of a wise man not to embroil himself in War though for matters of great importance The like advice Apollonius gives unto Princes Graec. Hist l. 6. Not to engage in War though for great matters III. Especially by a King that is injured As concerning punishments our principal duty if not as men yet as Christians is willingly and readily to remit them as God in Christ doth unto us Eph. 4.32 Seneca concerning a good Prince saith That he is more ready to forgive injuries done against himself than those done against others for as a magnanimous person scorns to be bountiful of another mans purse but had rather detract from himself what he gives unto others so he only deserves the title of being merciful who bears his own injuries patiently and
it is a thing in it self so horrid Quest Nat. lib. 5. c. 18. Grat. c. 33. q. 1. that nothing but pure necessity or perfect charity can denominate it just or honest So St. Augustine Militare non est delictum sed propter praedam militare peccatum est Simply to make War is not sinful but to make War for plunder and pay only must needs be wicked X. Especially they that make War for spoil Nay to make War for pay or hire is likewise a sin if that be the only or principal thing we aim at though otherwise to receive pay for our pains when we are lawfully called to fight is altogether lawful For who saith St. Paul goeth to War at any time upon his own charge CHAP. XXVI How War may be justly waged by such as are Subjects to anothers Command I. Who they are that are under the dominion of another II. What they ought to do being admitted to debate or being left to their free choice III. If they think the cause unjust though commanded they ought not to make war IV. What they ought to do in case they doubt the justice of the Cause V. If they cannot be satisfied their persons are to be spared but their Taxes heightened VI. In what case Subjects may justly take Arms in an unjust War I. Who are said to be under anothers Dominion HItherto we have treated of such as are free and have power to dispose of their own actions There are others that are under a more servile condition and such are the Sons of a Family Servants Subjects and each particular Citizen compared with the whole Body of the City whereof they are II. What they are to do being left to their own choice But these men if either admitted to advise or left to their own choice whether they will either take up Armes or be quiet ought to be guided by the same Rules which are already set down for those who being free have power to make war either for themselves or others III. What if they think the cause unjust But if commanded thereunto as usually they are then if it be evident unto them that the Cause is unjust they ought altogether to forbear for that God is rather to be obeyed than man was not only the judgment of the Apostle but even of Socrates also as Plato testifies in his Apology So also thought the Hebrew Doctors namely That Kings if they command any thing contrary to Gods Laws were not at all to be obeyed For this Josephus records of his Country-men who being convicted before Herod for pulling down the Roman Eagle which he had caused to be erected over the Great Gate of the Temple at Jerusalem and demanded how they durst do it returned this Answer Ant. lib. 17. c. 8. What we have done we did in vindication of God's honour and of that Divine Law whereof we profess our selves to be the Disciples neither hast thou cause to wonder if we hold the Laws which Moses delivered unto us from God himself to be more sacred and indispensable than thy Decrees Neither do we refuse to suffer death or any other punishment thou shalt think fit to inflict upon us as knowing that we shall not suffer as Malefactors but as Martyrs in a good Cause That excellent Saying of Polycarpus now ready to expire lives still upon Record namely To Princes and Potentates we owe all due honour and obedience yet not so as thereby to endanger our eternal salvation It was the advice of St Paul Children obey your Parents in the Lord Eph. 6.1 for this is right upon which words St Hierome thus glosseth For Children not to 〈◊〉 their Parents is a sin but because Parents may haply command that which is unlawful therefore he addes In the Lord. And St Chrysostome thus expounds them Children obey your Parents in the Lord that is in all things wherein you shall not disobey God Ad Patrem Infidelem And in another place he saith For it is no small reward that God proposeth to us for our obedience to Parents and Magistrates For we are commanded to esteem them as our Lords and both in words and deeds to yield them all due observance yet so as the works of true piety and devotion are not thereby hindred But if thine obedience unto God call thee forwards then that of St Hierome holds true which he speaks declamatorily out of Seneca Per calcatum perge Patrem Thou must go on though thou tramplest on thine own Parents For our obedience unto our Parents cannot justifie our disobedience unto God For as the same Apostle saith Every man shall receive from God according to his own works whether bond or free The like advice doth St Hierome give unto Servants where he addes In Eph. 6.1 But when our carnal Lords shall command any thing contrary to the will of him who is the God of the Spirits of all Flesh then they are not to be obeyed Again in another place In those things only are men subject unto their Lords and Masters which are not contrary to the Commands of God So likewise Chrysostome Servants also have their bounds and limits prescribed them by God In 1 Cor. 7.24 and how far they may go in their obedience is also commanded beyond which they must not proceed If the Lord command us nothing that is by God forbidden he is to be followed and obeyed but not beyond The like advice gives Clemens Alexandrinus concerning a Wife Let her saith he obey her Husband in all things and do nothing against his will but what she believes may very much conduce to vertue and her own salvation So likewise Tertullian We are sufficiently instructed saith he by the Apostles Precept to be subject to Magistrates Princes and Powers in all obedience Sed intra limites Disciplinae So far as they transgress not the Rules of Christian Discipline The like we read of Silvanus the Martyr We therefore despise the Roman Laws lest we should thereby transgress the Divine Laws And Musonius If a Son a Servant or a Subject In Martyrologio shall refuse to yield obedience unto either a Father a Master or a Prince in such Commands as are impious and ungodly they shall not be accounted as disobedient injurious or wicked Now as the obedience of Servants is bounded by the Divine Laws so is that of Children to Parents Lib. 2. c. 7. Aulus Gellius approves not of this opinion That a Father is in all things to be obeyed For saith he what if he command his Son to betray his Countrey to kill his own Mother c. Therefore the middle way is best and safest in some things we must in other some we must not obey So Seneca the Father Non omnibus Imperiis parendum est All Commands oblige us not unto obedience So Quintilian There is no necessity that Children should execute all their Parents Commands for there may be many things which though
right And this other Form Concerning which matters differences and causes Remonstrance hath been given by the Chief Herald at Arms of the People of Rome to the Chief Herald at Arms of the Ancient Latines and of the People of the Ancient Latines but yet neither have they paid given or done any of those things which they should have paid given or done wherefore I do judge agree and ordain That satisfaction be sought by an open and a just War Whereunto we may add a third Form which follows Because the people of the Ancient Latines have injured the people of Rome and failed in what they ought to have done and because the people of Rome have decreed to make war against the Ancient Latines therefore I and the people of Rome do denounce and make war against the Ancient Latines Livy lib. 31.36 But yet that the denouncing of War is not in this case as I have said precisely necessary is plain by this That it is sufficient if it be proclaimed but at the next Garrison For thus it was adjudged by the Heralds as well in the case of Philip of Macedon as afterwards in the case of Antiochus Since he is first to denounce the War that seeks satisfaction by the War Nay the War that the Romans made against Pyrrhus was denounced but to one of his Souldiers and that in the Flaminian Cirque only Besides this also gives an occasion to another needless Observation That War is sometimes solemnly denounced on both sides as that Peloponesian War which was made between the Corcyrians and the Corinthians whereas had it been proclaimed but on one side only it had been sufficient VIII 3. In denouncing War what is required by the Civil and what by the law of Nations That Heralds were usually sent to denounce War among the Graecians clad with party-coloured Coats and armed with a bloody Javelin by the Aequicoli first and afterwards in imitation of them by the Romans That there should be a solemn renunciation of all former friendship and alliance if any such there were after thirty dayes demand of reparation for damages received And that the King of the Heralds should again thrust his Spear into the enemies ground as Servius upon the ninth of Virgils Aeneads records and the like Caducaeus whence derived see Plinys Nat. Hist l. 29. c. 3. and Servius upon the 4th and 8th of Virg. Aeneads are not dictates of the Law of Nations but are Ceremonies arising from the Customs and Institutes of some particular Nation many of which Arnobius confesseth were antiquated in his time and some of them grown out of use even in Varro's The third Punick War was as soon made as denounced and it was the Opinion of Mecoenas in Dion that some of those Ceremonies were peculiar to popular States only IX War denounced against a Prince is denounced against all that adhere unto him War being denounced against him that hath the Supreme Power in any Nation is presumed to be denounced also against not only all his Subjects and against all that shall afterwards adhere unto him as being his Associates And this is the meaning of our Modern Lawyers when they say Diffidato Principe diffidati sunt omnes adhaerentes War Proclaimed against a Prince is proclaimed also against all that shall side with him For Diffidare with them is to proclaim War which is to be understood of that very War which is made upon him against whom it is denounced As when the Romans denounced War against Antiochus they thought it needless to denounce it against the Aetolians also seperately Livy lib. 36. who had publickly espoused Antiochus his quarrel for say the Heralds The Aetolians have spared us that labour by denouncing War against themselves X. But not by themselves considered But that War being ended If any other either Prince or People are to be invaded for Succours sent unto our Enemies during that War we ought to denounce that War anew if we expect the effects proper unto a Just War by the Law of Nations For such a Prince or State are not then to be looked at as Accessaries but as Principals Neither is it the prosecution of the old War but the beginning of a new Whereunto as the Law of Nations requires a solemn indiction so by the Civil Law of the Romans was it not to be undertaken untill it had the Warrant of a new Decree from the People Wherefore the War that Manlitis made against the Gallo Graecians and that which Caesar made against Ariovistus were not justifiable by the Law of Nations And whereas when the consent of the People of Rome was asked to make War against King Antiochus the question was put in this form Livy lib. 36. cap. 42. Is it your Will and Pleasure that War be made against King Antiochus and against all that shall side with him Which was also the form used in the Decree against King Perseus It ought to be understood with this limitation namely so long as that War shall continue with those two Kings and with those who are truly and really engaged in it with them XI 4. Why denunciation is necessary to some effects of War in a Solemn War Now the reason why a Solemn Denunciation is so necessarily required unto such a War as by the Law of Nations is Just is not as some think to prevent deceit and treachery for this is better referred to Magnanimity than to Justice Thus have we read of some Nations so confident of their own strength that they have appointed the time and place long before when and where they would give their Enemies battle As Plutarch tells us that the Romans did to King Porsenna †Alb. Gent. lib. 1. cap. 2. Thus Thomas Earl of Surrey sent an Herald to James the fourth King of Scotland to let him know that on the Friday following he would give him Battle if he would stay so long in England and Thomas his Son then Lord Admiral sent the King word that he might find him in the Van of his Army as Herbert Records it in his History of Henry the Eighth The Turks two dayes before Battle make many great fires Chalcoc lib. 7. Lib. 3. de Ira. cap. 2. pag. 43. But the true reason is to remonstrate unto all Nations That the War is made not rashly or upon any private ends but with the Consent and Approbation of both Nations or at least of those who have the Supreme Power on both sides For from hence ariseth those effects proper to a Just War which in a War made with Pyrats and Robbers or in a War made by a Prince against his own Subjects will not be allowed And therefore Seneca did well distinguish between a War denounced against Foreigners and that made against Subjects or Citizens XII Which are not in other Wars Now where some note and by examples teach that even in such Wars as these whatsoever is taken away immediately becomes his that
ibid. common worse than Hangmen ibid. most backward to fight most forward to plunder 476. bound by Oath not to embezel the spoil 478. how they march inoffensively in a Country at peace 531. their Swords sealed in their Scabbards ibid. Souldiers straggling and plundering to be assaulted as Thieves page 374 Specification page 88 139 Speech proper to man Pref. iv Spies to send allowed by the Law of Nations 463. yea and to kill them being discovered ibid. Spoil taken from an Enemy whose 471. disposed of by the General 474. sold by the Questor and the Money brought into the Treasury without diminution 474 475. sometimes divided amongst the Souldiers 475. sometimes parted by Plunder 476. whereof the General might take what he pleased 475. sometimes to them that had contributed extraordinarily to the maintenance of the War 477. sometimes between the Souldiers and the State 478 479. sometimes to the maimed and to Widows and Orphans 479. sometimes imparted to our Associates in War 478. and to Reformadoes 479. may by an antecedent Law be decreed to publick uses 478. sometimes embezeled and the Commonwealth robbed ibid. taken by publick Acts the Commonwealths but by private theirs that take them ibid. of a Town if stormed the Souldiers if surrendred the Commanders page 479 Sponsions what 187. how far a General bound if the King refuse 188. at Caudis and Numantia obliged the Army not the People of Rome ibid. made by Generals Leagues by Kings page 179 Sponsors in War how far bound 180. their Estates may be sold their Persons enslaved but their Prince not obliged page 188 So Steal away the heart what it means page 441 Stipulation is the sign of a deliberate mind page 152 The Stock of a Slave may be taken from him in what cases 522. how far his Lords and how far his page 521 The Stoicks dispute much about words 376 377. they account it wisdom to know when and where to lye page 440 To Strangers to deny marriage unlawful 86. their Goods not subject to the supereminent power of Kings 178. they must observe the Laws and Customs of those they live with 81. to rob them anciently an honourable Trade 182. how they should judge of things taken in War 480. how a Right may arise by the Civil Law 141 their Goods may be detained for our or our Subjects Debts page 448 Subjection mutual between King and People refuted 41. publick what 117. sometimes requires protection page 422 Subjects sometimes called Servants 42. when they may safely engage in a just War 43. their Goods may be seized for the Debts of their society 448. how their Right may lawfully be taken from them 178. but not without just cause 179. may justly make War 427. what they may do if the cause be unjust ibid. or if they doubt not to execute the wicked commands of their Prince 428. not punishable for their Princes sin properly 411. of an Enemy may every where be presented unless protected by another Prince page 458 A Subject not to be sollicited to kill his Prince nor a Souldier his General 462. bound by the sentence of a Judge but so are not Strangers 448. being invaded the Peace is broke 549. not if Pirates ibid. fight under an Enemy whether it breaks the peace ibid. whether they may be compelled to be Hostages 555. and how ibid. of another Prince whether they may be defended page 425 Subjects not to resist the supreme Power proved by the nature of humane Society and Gospel 54 55. their liberty liable to the fact of their Prince 447. as to them a War may be on both sides just 429 430. taken in an unjust War to be delivered to their Prince 529. may make War against their Magistrates being authorized by the Supreme Power page 53 Subjection by way of punishment 117. Civil 485. Despotical ibid. mixt 486. perfect and imperfect page 116 117 Success good of bad designs no encouragement Pref. xii Succession is the continuation of an old Title in the same Family 42. makes men and Kingdoms Immortal 117. Males preferred before Females and the Eldest before the Youngest 128. to Kingdoms not to last beyond the time of the first King ibid. the Laws are divers concerning it 126. to an Intestate 122. what if childless 127. to an Estate newly gained 126. in Kingdoms Patrimonial how guided 127. Representative what 124. not known to the Germans till lately 126. Lineal Agnatical 130. Cognatical 129. that always respects the proximity to the first King 130. in Kingdoms indivisible to the Eldest 127. wherein the elder Brothers Son is preferred before the younger Brother 132. the Sisters Son before the Kings own Son 130. who shall be Judge of it if in doubt 131. of the Nephew before the Vncle is but of late page 132. Succession to Kingdoms the same as to other Estates when that Kingdom was first established 129. wherein the Antenate is preferred before the Postnate if the Kingdom be indivisible 131. why descendent rather than ascendent page 123 124 The Successor bound by the Contracts of a King 178. and how far page 179 Suffer a man may by occasion of anothers sin and yet not for it page 400 401 Suffrages how to be reckoned where divers Societies claim by unequal shares page 114 Superiours how they may lye to their Subjects 443. what they may do about the Oaths of their Inferiours 173 174. may compel their Inferiours not only to that which is justly due by Justice but by any other Vertue page 423 Suppliants liable to the licence of War 461. their Right to whom due 396 397. to be protected until the equity of their Cause be known 399. to be spared 508. unless guilty of some crimes deserving death ibid. Supplies sent to an Enemy by Neuters page 435 See Relief Supreme Power what and in whom 37. not in the People 37 38. it may be divided into Parts subjective and potential 46. not lessened by consenting that their acts shall be confirmed by the Authority of the Senate ibid. A Surety suffers not for the Debt but for his Engagement 400 401. not to be troubled unless the Principal be insolvent page 518 To Surrender unless succours come how to be understood page 531 Swallows feed their Young by turns page 123 T. TAlio not to extend beyond the person page 508 See Retaliation Talio bought off by the Jews page 371 Taxes that maintained the War restored by Fabritius page 477 The Temple at Jerusalem entred into by Pompey and burnt by Titus 466 467. its religious sanctity page 466 The Temples of the Gentiles burnt by the Jews ibid. Temples in War to be spared 514. to violate them Sacriledge page 515 Temptation vehement excuseth in part page 378 Terminus would have no bloud shed in his Sacrifices page 526 Territory whence 470. with what is fixt therein being taken in War is the Kings page 472 Terrour alone gives no internal Right to kill page 508 Testament wanting some formality what effect it