other way to preserve themselves or because being opprest with want they can have no sustenance orâ—… other terms For if the Campanians 〈◊〉 old being subdued by necessity subjected themselves to the Roman people in this form The people of Campania and the City Capua our Lands the Temples of our Gods all divine and humane things we yield up into your hand O ye Con'cript Fathers and fundâ—… people when they desired to subj a themselves to the dominion of the Romans were not accepted as 〈◊〉 saith what hinders but that a people after the same manner may yield up 〈◊〉 self into the hand of one propotent and over-mighty man Moreover it 〈◊〉 happen that some Father of a Family possessing a large estate of Lands may please to receive no inhabitant 〈◊〉 to his possession but upon such condtion or that some Master having 〈◊〉 great number of servants may manuâ—… and set them at liberty on conditioâ—… that they be subject to his Government and pay him tribute VVhich cases 〈◊〉 not without their examples Tacitâ—… concerning the servants of the Germans saith Every one is Master of his own house and estate The Lord impiâ—…seth and requireth of them as his farmers a rent of Corn or Cattle or cloths and the servant so far is subâ—…ect Adde that as Aristotle hath said some 〈◊〉 are by nature servants i. e. fit for servitude so also some Nations are of this disposition that they know better how to be ruled than how to rule Which the Cappadocians seem to have thought of themselves who preferred the life under a King before the Liberty offer'd them by the Romans and affirmed they could not live without a King So Philostratus in the life of Apollonius saith It is a folly to bestow Liberty upon the Thracians Mysians Getes which they would not gladly accept And moreover some might be moved by the examples of those Nations which for many ages lived happily enough under a Government plainly regal The Cities under Eumenes saith Livy would not have changed their fortune with any free City whatsoever L. 42. Sometimes also the State of the City is such that it cannot be safe unless under the free Empire of One which conceipt many prudent men had of the Roman as the case stood in the time of Caesar Augustus For these causes therefore and the like it may not only possibly but doth usually come to pass that men subject themselves to the Empire and power of another which also Cicero notes in the second of his offices XLIII The same further proved FUrther yet by a just War as we have said afore as private dominion may be acquired so also civil dominion or the right of reigning without dependence Neither do I speak this only in behalf of the Empire of One where that is receiv'd I would not be so mistaken but the same Arguments are of force for conserving the Empire of many where many nobles or states have this same right of supreme power and govern the City the Plebeians being excluded What that no Common-wealth hath ever been found so popular wherein some such as are very poor or foreigners and also Women and Youth are not kept from publick Counsels Besides some States have other people under them not less subject than if they did obey Kings Whence that question Is the Collatin people in their own power and the Campanians when they had yielded up themselves to the Romans are said to be under the power of others Many are the examples to this purpose and they are all of no value if we once grant this that the right of ruling is alwaies subject to the judgement and will of them who are ruled But on the contrary it is evident both by sacred and prophane history that there are Kings that are not inferiour to the people though taken all together If thou shalt say saith God speaking to the people of Israel I will set a King over me and to Samuel Shew unto them the right of the King that shall reign over them Hence is a King called the Anointed over the people over the inheritance of the Lord over Israel Salomon King over all Israel So David giveth thanks to God for subduing his people under him The Kings of the Nations saith Christ bear rule over them And that of Horace is well known Commands of Kings their subjects move And Kings are subject unto Jove Seneca thus describes the three forms of Government Sometimes the people are they whom we ought to fear sometimes if the Discipline of the Common-wealth be so that most things be transacted by the Senate the gracious men therein are feared sometimes single persons to whom the power of the people and over the people is given Such are they who as Plutarch saith have a command not only according to the Laws but over the Laws also and in Herodotus Otanes thus describes a single Empire to do what one pleaseth so as not to be accomptable to any other and Dio Prusaeensis defines a Kingdom to have command without controul Pausanias opposes a kingdom to such a power as must give account to a superiour Aristotle saith there are some Kings with such a right as else where the Nation itself hath over it self and that which is its own So after that the Roman Princes began to take upon them an Authority truly regal the people is said to have conferred upon them all their Authority and power and that over themselves as Theophilus interprets Hence is that saying of M. Antonius the Philosopher None but God alone can be judge of the Prince Dion of such a Prince He is free having power over himself and the Laws that he may do what him pleaseth and what likes him not leave undone Such a kingdom was of old that of the Inachidae aâ—… Argos far different from the Athenian Common-wealth where Theseus as Plutarch tells us acted only the part of a General and Guardian of the Laws in other respects not superiour to the rest Wherefore Kings subject to the people are but improperly called Kings as after Lycurgus and more after the Ephori were established the Kings of the Lacedemonians are said to have been Kings in name and title not really and indeed Which example was also followed by other States in Greece Pausanias Corinth The Argives in love of equality and liberty have long since very much abated the regal power so that they have left the Sons of Cisus and his posterity nothing beside the name of a Kingdom Such Kingdoms Aristotle saith do not make any proper kind of Government because they only are a part in an Optimacy or Populacy Moreover in Nations that are not perpetually subject unto Kings we see examples as it were of a Kingdom temporary which is not subject to the people Such was the power of the
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
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
and all things are uncertain If there be no Community that can be conserved without Law which Aristotle proved by a memorable example of Thieves certainly that which binds Mankind and many Nations together hath need of Law as he perceiv'd who said Unhonest things are not to be done no not for ones Countrey Greatly doth Aristotle accuse them who when they would have no man govern among themselves but he that hath right have no regard of right or wrong toward Foreiners That same Pompey whom we named afore on the other part corrected this Speech of a Spartan King That Common-wealth is most happy whose bounds are terminated by the Spear and Sword saying That 's truly blessed which hath Justice for its bounds to which purpose he might have used the authority of another Spartan King who preferred Justice before Military Valour upon this ground because Valour must be govern'd by Justice but if all men were just there would be need of Valour Valour it self is defined by the Stoicks to be a virtue fighting for equity Themistius elegantly shews that Kings such as the rule of Wisdome requires have not a tender eye onely to one Nation committed to their trust but to all mankind being as he speaks not or Lovers of Romans but Lovers of Men Minos his name was hated among Posterity because he restrained equity to the bounds of his Empire But so far is it from Truth which some imagine that all Laws cease in War War ought neither to be undertaken but for the obtaining of right nor to be waged being undertaken but within the limits of Justice and Faith Well said Demosthenes War is against them who cannot be ruled by Judgements for Judgements prevail upon them who feel themselves weaker but against them who make or think themselves equal Arms are taken up which truly that they may be right are to be exercised with no less religion than Judgements are wont to be exercised Let the Laws then be silent among Arms that is those Civil Judiciary Laws which are proper to peace not those other Laws that are perpetual and accommodate to all times For it was excellently said by Dion Prusaeensis Written Laws indeed that is the Civil prevail not among Enemies but the not-written Laws prevail that is those that are dictated by Nature and established by the Consent of Nations This appears by that old Formula of the Romans I judge those things are to be requir'd by a pure and pious War The same antient Romans as Varro noted undertook Wars slowly not licentiously because they thought none but a pious War was to be waged Camillus said Wars are to be waged justly as well as valiantly Africanus That the People of Rome did both undertake Wars and finish them with Justice In another you may read There are Laws of War also as of Peace Another admires Fabricius a brave man and which is a rare thing innocent in War and one that believ'd an Enemy might be wrong'd What power the Conscience of Justice hath in Wars Historians frequently demonstrate often ascribing Victory to this cause especially Thence those common Sentences The Hearts of Souldiers rise or fall at consideration of the Cause He seldome returns in safety that fights unjustly Hope waits upon a good Cause and the like Nor ought any to be moved at the prosperous Successes of just Attempts For 't is sufficient that the Equity of the Cause hath a certain peculiar and that a great influence upon the Action though that influence as it happens in humane affairs is oft hindred in its efficacy by the intervention and opposition of other causes Also for the procuring of Friends which as particular persons so States have need of to many purposes much avails an Opinion and Fame of War not unwisely nor unjustly undertaken and piously managed For no man is desirous to joyn himself to such whom he supposeth to hold justice piety and faith in vile esteem When upon the grounds and reasons aforesaid I saw most clearly that there is among Nations a Common Law which availeth both to Wars and in Wars I had many and weighty causes to write thereof I saw through the Christian world such licence of going to War as even barbarous Nations may be ashamed of that men take Arms greedily for light causes or none at all which being once put on all reverence of divine and humane Right is put off even as if the Furies had commission given them to work all kind of mischief In contemplation of which immanity many good Men have gone so far as to deny all Arms to a Christian whose Religion consisteth chiefly in Charity toward all the world in which opinion seems to be sometimes both Johannes Ferus and my Country-man Erasmus great Lovers of Peace both Ecclesiastical and Civil but with that intent as I suppose wherewith we are wont to bend what is crooked to the other side that it may return into straitness Yet indeed this endeavour of too much contradiction is often times so far from being profitable that it hurts because it is easily found that excess in some sayings takes away authority for other even when they stand within the limits of truth Wherefore both Parties had need of a Moderator that it might appear Neither nothing nor every thing is lawfull And withall my Design was by my private study and diligence to advance the profession of the Laws which heretofore in publick Offices I had exercised with as much integrity as I could This comfort of my studies was left me after I was unworthily cast out of myown Countrey honour'd by so many Labours of mine Many before me have purposed to bring this into a form of Art but no man hath done it perfectly Nor is it possible unless which hitherto hath not been done with care enough the things which are by Constitution be rightly separated from Natural For Naturals because they are alwaies the same may easily be collected into Art but the things that come from Constitution because they are often changed and are divers in divers places are put without Art as other precepts of singular things Nevertheless if the Priests of true Justice would undertake to handle the parts of natural and perpetual Jurisprudence laying aside what hath its original from free will One of Laws another of Tributes another of the Judges Office another of the conjecture of Wills another of proving Facts thereupon might be composed a Body of all parts collected What course we thought fit to take we have shewed in deed rather than words this work containing that part of Juris-prudence which is by far most noble For in the first Book having first spoken of the Original of Right and Law we have examined that question Whether any War be just and lawfull After to know the difference 'twixt publick and private War we had to explain the nature of the Supreme Power what
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
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
Amymones among the Cnidians and of the Dictators among the Romans in the first times when there was no appeal 〈◊〉 the people whence the Dictators Edict as Livy saith was observed as 〈◊〉 Oracle and there was no help but 〈◊〉 their care of obeying it and the force of the regal power was besieged with the Dictatorship as Cicero speaketh XLIV Arguments to the contrary answered THe Arguments brought on the contrary part are not hard to be solved For first that they affirm the Constituent to be superiour to the Constitutel is true only in that constitution whose effect perpetually depends on the will of the Constituent and not in that which at first proceeds from the will but afterward hath the effect of necessity even as a woman makes to her self a husband by consent whom she must of necessity obey for ever Valentinian the Emperour to the Souldiers who had made him so when they asked somewhat of him which he thought unreasonable gave this answer To elect me to rule over you was in your power O my Souldiers but since you have elected me the thing you ask is at my pleasure not yours You as subjects ought to obey I must consider what is fit to be done Besides the Assumption is not true that all Kings are constituted by the people which may be sufficiently understood by the examples of a Father of a family admitting Tenants on condition of obedience and of Nations overcome in War which above are mentioned Another Argument they draw out of that sentence of Philosophers All Government is for the benefit of them that are govern'd not of them that do govern Whence they think it follows from the Nobilitie of the end that the Governed are superiour to the Governour But neither is that universally true The good of the governed is the end of all Government for some Governments are by themselves for the Rulers sake as that of a Master for the servants profit is there extrinsecal and adventitious even as the Physicians Fâ—…e pertains nothing to the Medicine it self Other Governments there are for mutual benefit as the Husband 's So certain Empires may have for their end the utility of the Kings namely such as are gotten by conquest and are not therefore to be called Tyrannical seeing Tyranny as the word is now taken includes injustice Some also may respect as well his utility that rules as his that is ruled i. e. when an impotent people set over themselves a potent King 〈◊〉 their defense Yet do I not deny that in many Empires is properly respected the profit of the subjects nad true it is which Cicero after Herodotus Herodotus after Hesiod hath deliver'd That Kings were constituted to the end justice may be had And yet it doth not follow thence what they infer that the people are superiour to the King for tutelage also was found out for the Pupils good yet is tuition a right and power over the Pupil Nor is the objection of any moment if 〈◊〉 say the Tutor may be put out of his charge upon mal-administration of the Pupils estate and therefore the same must take place upon the King for this holds in the Tutor who hath a Superior but in Empires because a progress in infinitum is not granted we must by all means make a stop in some person or persons whose faults because they have no Superior Judge God himself testifies that he takes into his peculiar cognizance And he either doth justice upon them if he judgeth it to be needfull or else forbeareth them for a punishment or tryal of the people Excellently saith Tacitus As drougth or excessive rain and other evils of naeture so bear ye patiently the luxury or avarice of Rulers Vices will continue as long as there are men but neither are they continual and they are recompensed by the intermixture of better things And it was a good saying of M. Aurelius Magistrates judge of private persons Princes of Magistrates God of Princes Notable is the place in Gregorius Turonensis where that Bishop thus addresses himself to the King of France O King if any one of us go beyond the bounds of justice he may be corrected by you but if you exceed Who shall chastise you For we speak unto you and you hear us if you will but if you will not who shall condemn you but He who hath pronounced Himself to be JUSTICE Among the doctrines of the Essens Porphyry remembers this That Empire falleth not to any man without Gods especial care Irenaeus very well By whose appointment men are born by his appointment also Kings are constituted fit for the people who in those times are gogovern'd by them There is the same sense in the Constitutions which are call'd Clement's Thou shalt fear the King knowing that he is chosen by the Lord. Nor doth it overthrow these things which we have said that we read the people punished sometimes for the sins of their Kings for this cane not so to pass because the people dd not punish nor restrain the King but because they did at least tacitely consent to his faults Nevertheless it is certain too without that God might use his supreme dominion which he hath over the life and death of every one for to punish the King whose punishment indeed it is to be deprived of his Subjects XLV Of mutual Subjection OThers there are who feign unâ—… themselves a certain mutual subjection so that the whole people ought to obey the King governing well and the King governing ill ought to be subject to the people These men if they did say Things manifestly unjust are not to be done at the Kings command would speak a truth which is acknowledged among all honest men but this includes no coaction or right to command the King And had it been the purpose of any people to divide the power with the King of which we shall say somewhat hereafter such bounds surely ought to have been assigned to either power which might easily be distinguisht by the difference of places persons or affairs But the goodness or illness of act especially in civil matters which oft have an obscure disceptation are not fit to distinguish parts Whence very great confusion cannot but follow whilst under pretence of a good or evill act on the one side the King on the other side the people draw unto themselves according to their right of power the cognizance of the same matter Such a perturbation of things so far as I can remember never any people was so phantastick as to introduce XLVI Cautions for the understanding of the true Opinion The first FAlse opinions being removed it remains that we set down some cautions that may open a way to make a right judgement to whom the right of supreme power in every Nation belongs Our first caution is that we be not deceived with the ambiguous sound of a name or the shew of external things For example
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-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
their causes before judges of their own constitution In the last kinde the confederates have no right of cognizance Therefore when Herod voluntarily carried to Augustus certain accusations against his sons You might said they punish us your self both as a father and as King And Scipio when Annibal was accus'd at Rome by certain Carthaginians said the Conscript Fathers ought not to interpose in a business of the Carthaginian Commonwealth And herein as Aristotle teacheth a confederacy and a commonwealth do differ that Confederates take care no common injury be done unto them not that the Citizens of a Confederate Commonwealth do no injury one against another LVII Another Objection answered IT is objected also that in histories he that is superior in the league is sometimes said to command he that is inferior to obey But neither ought this to move us For either it is treated of things pertaining to the common good of the Society or of his private utility who is superior in the league In common affairs out of time of Assembly even where the League is equal the custome is for him who is chosen Chief of the league to have command over his Confederates as Agamemnon over the Graecian Kings the Lacedaemonians over the Graecians afterward and after them the Athenians In the Speech of the Corinthians in Thucydides we read It becomes them that are Princes of the league not to seek their own particular advantage but content themselves with an eminency above the rest in taking care of the common Interest Isocrates relates that the antient Athenians had the conduct of Greece and the charge of all their Fellowes but so that they left them all their liberty entire This the Latiâ—… call Imperare to command the Greek more modestly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to order The Athenians when the conduct of the war against the Persians was committed to them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith Thucidides they ordered so the Commissioners from Rome to Greece were said to be sent thither for ordering the state of the free Cities whâ—… towns should contribute money against the Barbarians what should provide stips Now if he doth this who is only chief in a league no marvell he doth the same who is superior in a league unequal Wherefore Empire in this sense that is the conduct of affairs takes not away the liberty of others But in those things that concern the proper utility of the Superior his Requests are usually call'd Commands not by right but by likeness of the effect as the Desires of Kings are so called and as Physicians are said to rule their patients Livy Before this Consul C. Posthumius never was any one in any thing a charge or burthen to our Confederates therefore the Magistrats were furnisht with Mules tents and all other necessaries that they might not command such things from our Fellows Mean while t is true it often comes to pass that the Superior in a league if he much excell in strength by little little usurps an Empire properly so calld especially if the league be perpetual with a right of bringing in Garrisons into towns as the Athenians did when they sufferd an appeal to be made unto them from their Fellows which the Lacedemonians never did In which times Isocrates compares the Empire of the Athenians over their Confederates to a Kingdom So the Latins complaind they endured servitude under the shadow of a league with Rome so the Etolians of a vain shew and empty name of liberty and the Achaians afterward that a league in appearance was now become a precarious servitude So in Tacitus Civilis the Batavian complaineth of the same Romans We are not Associats as heretofore but are esteemed as slavos and in another place A miserable slavery is falsly named peace Eumenes also in Livy saith the Fellows of the Rhodians were Fellows in word indeed subjects to their Empire and obnoxious And Magnetes that in shew Demetrias was free but indeed all things were done at pleasure of the Romans So Polybius notes the Thessalians had a seeming liberty but really were under command of the Macedontans When these things are done and so done that patience passeâ—… into a right of which elswhere then either they which were Fellows become Subjects or at least there is a partition of the supreme power such as we have declared above to be possible LVIII That the highest power may consist with paying of Tribute I See no cause to doubt but they that pay a certain Tribute either for redeeming of injuries or to gain safeguard such as were the Hebrew Kings and of the neighbouring nations after the time of Antonius may have the highest power although this confession of their weakness diminish somewhat of their dignity LIX That the highest power may be holden in Fee TO many it seems a more difficult question concerning feudal obligation but it may easily be solved out of that which hath been said For in this contract which is proper to the German Nations nor is any where found but where the Germans have seated themselves two things are to be considered Personal obligation and Right over the thing Personal obligation is the same whether one by feudal right possess the right it self of Governing or any other thing also placed else where Now such an Obligation as it would not take away from a private man the right of personal liberty so neither doth it take away from a King or people the right of the highest power which is civil liberty Which is most apparently to be seen in the free feuds which they call Franca which consist not in any right over the thing but in personal obligation onely For these are nothing but a kind of unequal league wherof we have spoken wherein the one party promiseth aid and service the other safeguard protection Suppose also that aid was promised against All which Feud they now call Ligium for that word was of larger signification this detracteth nothing from the right of the highest power over subjects not to mention now that there is alwayes a tacit condition while the war is just of which elswhere But as to the right over the thing truly it is such that the right it self of governing if it be holden in Fee may be lost either the family being extinct or also for some sort of crimes Yet in the mean it ceaseth not to be highest for we must distinguish as hath been said between the thing it self and the manner of having it And by such a right I see many Kings constituted by the Romans so that the royal family exspiring the Empire should return to themselves which is noted by Strabo concerning Paphlagonia and some other LX. The Right and the Exercise of it distinguished MOreover both in Empire and Dominion we must distinguish the Right from the Use of right or the first act from
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
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
to him that sent him and the Embassador left to his Master's judgment There are some too that say the Kings or Nations unconcerned are to be consulted with which indeed may be a point of prudence cannot be of right The reasons which every one brings for his opinion conclude nothing definitely because this right not like natural right certainly ariseth out of certain reason but is determined by the will of Nations Now it was in the power of Nations either absolutely to provide for the safety of Embassadors or with certain exceptions for on this side may be alleged the utility of punishing great offenders and on the other side the utility of Embassages the facility whereof is best promoted by securing them as much as may be We must therefore see how far Nations have consented which cannot be evinced by examples only for many are extant on both sides Wherefore we must have recourse both unto the judgments of wise men and unto conjectures Two judgments I have most illustrious one of Livy another of Sallust Livy if the Embassadors of Tarquin who had raised treason at Rome saith Although they seemed to have committed that for which they ought to be in the place of enemies yet the right of Nations prevailed We see here the right of nations extended even to them that do hostility The saying of Sallust pertains to the Embassadors train of whom we shall speak anon not to the Embassadors themselves but the Argument will proceed rightly à majori ad minus that is from a thing less credible to that which is more He saith Bomilcar the Companion of him who came to Rome on the publick faith is made guilty rather according to rules of equity than by the Law of Nations Equity that is the meer Law of Nature suffers punishment to be exacted where is found a delinquent but the Law of Nations excepteth Embassadors and such like who come upon publick faith Wherefore that Embassadors be made guilty is against the Law of Nations whereby many things are wont to be prohibited which by the Law of Nature are permitted Conjecture also goes on this side for it is more true that privileges should be so understood that they may give somewhat beyond Common right Now if Embassadors be only secur'd from unjust violence therein were no great matter nothing of preeminence Add that the security of Embassadors outweighs the utility arising from punishment For punishment may be taken by him that sent the Embassador being willing and if he be unwilling it may by man be exacted of him as an approver of the crime Some object better one be punisht than many involv'd in war But if he that sent the Embassador approve his deed the Embassadors punishment will not free us from the war Now on the other side the safety of Embassadors is in a slippry place if they ought to render a reason of their actions to any other but him by whom they are sent For when the Counsells of them that send and receive Embassadors are for the most part divers often contrary it can scarce happen but always somewhat may be said against an Embassador that may bear a shew of a crime And though some are so manifest that they have no doubt yet is a general danger sufficient for the equity and utility of a general Law Wherefore my opinion clearly is that it pleas'd the Nations that the Common custom which subjecteth every one being in a strange land to the Law of that land should admit an exception in Embassadors 1. That as they are accounted by a certain fiction for the persons of their Masters He brought with him a face of the Senate the authority of the Commonwealth saith Tully of an Embassador so also by the like fiction they should be set as it were without the compass of the land whereupon they are not bound by the Civil Law of that people amongst whom they live Wherefore if the offense be such one as may seem possible to be contemned it is either to be dissembled or else the Embassador is to be commanded to depart the Country Which Polybius saith was done to him who had given cause to the Hostages at Rome to escape away And hence on the by we may learn the reason why at another time the Embassador of the Tarentines for the same offense was beaten with rods namely because the Tarentines being conquerd begun to be under the Romans If the crime be cruel and publickly mischievous the Embassador must be sent to his Master with a request that he would punish him or give him up as we read the Galls required the Fabii should be deliverd to them But that which we have said afore that all human Laws are so temperd that they bind not in extreme necessity hath place also here about the Precept of the sanctimony of Embassadors Indeed that hight of necessity is not in the taking of punishment which also in other cases is taken away by the Law of Nations as we shall shew hereafter much less in the place time and manner of taking punishment but in the precaution of a great mischief especially publick Wherefore that an imminent danger may be withstood if there be no other remedy Embassadors may be both apprehended and examined So the Roman Consuls apprehended the Embassadors of Tarquin especiall care being had of their letters as Livy speaks that they might not be lost But if an Embassador use force of Arms he may be slain no doubt not by way of punishment but by way of Naturall defense So might the Galls kill the Fabii whom Livy stiles violaters of human Law Therefore in Euripides Demophon when the Herald sent by Euristheus endeavour'd to cary away the suppliants by force apposeth him by force and when he said Dare you strike me a Herald sent Answers Yes if you be violent His name was Copreus and because he proceeded violently and used force he was slain by the Athenians as Philostrastratus relates in the life of Herod By a distinction not unlike to this Cicero resolves that question Whether the son ought to accuse the father being a traytor to his Countrey For he will have it to be his duty to avert an imminent danger but not for punishment of the fact when the danger is past LXVIII The Law in favour of Embassadors binds not him to whom he is not sent THat Law which I have mentiond of not offring force to Embassadors is to be conceiv'd obligatory to him unto whom the Embassy is sent and so too if he hath admitted it there being after that time as it were a tacit Covenant between them Nevertheless it may and is wont to be denounced that Embassadors be not sent if they be they shall be taken for enemies as it was denounced to the Etolians by the Romans and of old by the Romans to the Veientes it was proclamed unless they would get them
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
that every 〈◊〉 would scape unpunished if it were sufficient in any manner to make profession of repentance God himself doth not always remit all punishment to the penitent as appears even by Davids example Wherefore as God might remit the penalty of the Law that is violent or otherwise immature death and yet inflict no small evils upon the offender so now also may he remit the punishment of eternal death and in the mean time either himself punish the sinner with immature death or be willing he should be so punished by the magistrat LXXXIX Another objection answerd about precision of repentance AGain others find fault that together with life space of repentance is also cut ost But these men are not ignorant that pious Magistrats have great care hereof and appoint not any one to to be executed without some time allowed wherein he may acknowledge his sins and seriously detest them Which kind of repentance though works intercluded by death follow not may be accepted by God as is proved by the example of the Thief crucified with Christ. If it be said a longer life might be profitable to a more serious repentance and amendment it may be answer'd Men are found sometimes such to whom that of Seneca may be spoken justly We will do you all the good that can now be done you 〈◊〉 put you to death And that also of thâ—… same Author There is but one way fâ—… them to cease to be evil that is to ceâ—… to be Likewise said Eusebius the Philosopher This then beside what hath been said in the beginning of our work be answer'd to them who would have either all or capital punishments without any exception forbidden Christians contrary to the Apostles doctrin who having included in the regall office the use of the sword as the exercise of Divine revenge in another place exhorteth to pray that Kings may be made Christians and as Kings be a protection to the innocent This cannot be obtain'd such is the improbity of a great part of men even after the propagation of the Gospel unless the boldness of some be repressed by the death of others and thus too among so many punishments and executions of the guilty innocency is hardly enough secured Nevertheless it is not amiss to propose to the imitation of Christian Rulers at least in some part the example of Sabacon King of Egypt for his piety very famous by whom Capital punishments with most happy success were commuted for tasks and malefactors condemned to work as Diodorus relates and Strabo saith there are some Nations neer Caucasus among whom the greatest offenders received not the sentence of death Nor is that of Quintilian to be despised No man will doubt but if wicked men may by any means be recalled unto a right mind as sometimes it is known they may it is better for the Commonwealth to save than to destroy them Balsamon notes that the Roman Laws which imposed penalty of death were most of them changed by the later Emperours being Christian into other punishments to the end a deeper impression of repentance might be made upon condemned persons and the continuance of the punishment might serve the more for example XC Three Inferences from the former Doctrine OUt of these things last spoken it may be collected how unsafe it is for a private Christian whether for his own or for the publick good to take punishment of any wicked man especially capital though we have said it is sometimes permitted by the Law of Nations Whence the manner of those people is to be commended amongst whom such as go to Sea have commission from the publick Power to pursue Pyrats if they find any that they may use the occasioâ—… given not as by their own adventure be publickly commanded Not unlike 〈◊〉 this is another custom receiv'd in many places that unto criminal accusations are admitted not all that please but certain men upon whom by publick authority that office is imposed that no man may do any thing at all tending to the shedding of anothers blood but by the necessity of his office Hither perteiâ—… the canon of the Eliberan Synod If any believer turn informer and by his accusation any be proscribed or put to deâ—…h Our decree is that he shall not no 〈◊〉 〈◊〉 the end receive Communion Lastly this also is understood by what hath been said that a man truly Christian is not well advised nor doth it become him to affect and thrust himself into publick Offices that have judgment of blood and think and profess it fit that power of life and death over his fellows should be committed to him as most excellent 〈◊〉 all and as it were a God among men For certainly what Christ admonisheth that it is dangerous to judge of others because such judgment as we give must we in like cases expect from God is not impertinent in this place XCI Whether human Laws that permit the killing of some men give the killers a true right before God or only impunity among men THis is a noble question and Covarruvias and Fortunius answer that such Laws give only impunity whose opinion is so displeasing to Ferdinandus Vasquius that he calls it an ungodly opinion No doubt as we have said elswhere the Law may do both in certain cases but whether it will or no is to be understood partly by the words partly by the matter of the Law For if the Law give indulgence to passion it takes away human punishment not the fault as in case a husband kill his Adulterous Wife or the Adulterer But if the Law respect the danger of future evill by delay of punishment it is to be conceived to grant right and publick power to a private man so that now he is not private Of this kind is that Law in Justinians Code under the rubric quando liceat unicuique c. Where every man hath licence given him to oppose force against plundering and pillaging Soldiers this reason being added For it is better to meet with them it time than to seek redress after the injury done We therefore permit you to defend avenge your selves and what is too late punished by judgment we suppress by edict that none spare a Soldier but use his weapon against him 〈◊〉 thief And the subsequent Law aboâ—… desertors saith Let ail men know thâ—… have power given them against publicâ—… robbers and desertors that run from thâ—… colours and all are ministers of publicâ—… revenge for the quiet of all To this purpose is that of Tertullian Against Trâ—…tors and publick enemies every man is a Soldier And herein differs the right 〈◊〉 killing exiles whom they call Banniâ—… from this kind of Laws because there precedes a special sentence here a general Edict the fact being evident obteiâ—… the force of a sentence pronounced XCII What acts are not punishable by men NOw let us see whether
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
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
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
as if one by diâ—… had brought up something of anotâ—… man 's lost in the Sea Apposite to 〈◊〉 question methinks is the historie of Abraham when being Conquerour of the five Kings he return'd to Sodom He brought back saith Moses all the goods viz which the Kings had taken apposite is the condition which the King of Sodom offers to Abraham Give me the persons and take the goods to thy self viz. for his pains and danger But Abraham a man not onely of a pious but a noble mind would take nothing for himself save onely of the goods for of them is this narration as by his own right he gave a tenth to God he detracted necessary charges and was pleased some portion should be alotted to his partners in the action Now as Goods are to be rendred to the Owner so also people and their parts are to be restored to those who had right of Government or to themselves if they were in their own power before the unjust force So we learn out of Livy that Sutrium was regained and restored in the time of Camillus The Aeginetes and Melians had their Towns restored to them by the Lacedemonians the Grecian Cities invaded by the Macedonians were freed â—…y Flaminius The same Flaminius also in a Conference with the Embassadours of Antiochus thought it fit the Cities of Asia which were of the Grecian name which Seleucus the Ancestor of Antiochus had taken by war Antiochus had recover'd being lost should be freed For said he the Colonies 〈◊〉 not sent into Aeolis and Ionia to be iâ—… servitude under the King but to the end their Race might be increased and the most antient Nation propagâ—…d through the world There is also a question made of the space of time wherein the internal obligation of restoring a thing may be extinguished But this question between Citizens of the same Empire is to be determined out of their Laws if they grant an internal right and do not consist onely in the external which is to be gathered out of the words and purpose of the Laws by prudent inspection and among them that are foreiners to each other by sole conjecture of dereliction of which elswhere Lastly if the right of War be very ambiguous 't will be best to follow the counsel of Aratus Steyonius who partly perswaded the new Possessors to accept of money rather and yield the Possessions parâ—… perswaded the former Owners to thâ—… it more commodious to have a just prâ—… for it than to recover what they hâ—… lost LVI Of Neuters in War How they are to be used and how to behave themselves IT might seem superfluous to speak of them who have nothing to do with War seeing it is manifest there is no right of War over these Yet because by occasion of the VVar many things are wont to be done against these borderers especially on pretence of necessity we must here repeat what we have said afore that Necessity ought to be extreme that it may give a right over what belongs to another man 't is requir'd moreover that the Owner himself be not in equal necessity and where the necessity is manifest no more is to be taken than the necessity exacteth that is if the custody suffices the use of the thing is not to be taken if the use not the abuse if the abuse be necessary yet is the price of the thing to be restored Moses when the highest necessity urged him and the people to pass through the Land of the Idumaeans first he saith he would pass along the high way and not divert into their Corn-fields or Vineyards if he had need but of their water he would pay a price for it The worthy Captains both Greek and Roman have done the like In Xenophon the Greeks with Clearchus promise the Persians to march away without any damage to the Countrey and if they might have necessaries for money they would take nothing by force Dereyllides in the same Xenophan led his Army through peaceable places without any detriment to 〈◊〉 friends Livy of King Perseus Through Phthiotis Achaia and Thessalia withâ—… doing any harm in the fields through which he passed he returned into his Kingdome Plutarch of the Army of Agis the Spartan They were a spectacle to the Cities marching through Peloponnesus fairly and without hurt 〈◊〉 almost without noyse Velleius reports the like of Sulla Cicero of Pompey Frontinus of Domitian Lampridius of the Parthick Expedition of Alexander Severus Concerning the Gotths Hunnes Alans that served Theodosius the Panegyrist No tumult no coâ—…on no pillaging as Barbarians use bâ—…t if at any time he had scarsity he patienth endured want and by parsimony enlarged the provision which was streighten'd by number Claudian gives the same praise to Stilâ—… and Saidâ—… to Belisarius This was effected by the exâ—… care to provide Necessaries and by good Pay and strict Discipline which Ammian tels us of That none should tread upon the Lands of quiet men And Vopiscus Let no Souldier steal a Click touch a Sheep pluck a Grape exact Oil Salt Wood. And Cassiodore Let them live in the Province in a civil manner nor let their Arms make them over-bold because the Shields of our Army ought to save the Romans from all trouble Adde to these that of Xenephon A friendly City 's not to be compell'd to give any thing against their will Out of these Sayings you may best interpret that Advice of the great Prophet yea one greater than a Prophet Do violence to no man neither accuse any man falsly but be content with your wages Parallel is that of Aurelian in Vopiscus now câ—…ted Let the Souldier be content with his provision let him live of the spoyl of the Enemy not of the tears of the Province Nor has any one reason to think these things are well spoken but cannot be performed For neither would that divine man have given such a charge nor wise Law-givers have requir'd it if it had been in their conceit impossible Besides we must necessarily grant it may be done which we see has been done Therefore have we brought examples whereunto this eminent one is worthy to be added which Frontinus mentions out of Scaâ—… That a Fruit-bearing Tree enclosed within the bounds of the Camp the next day after the Armies removal was found ungather'd Livy when he had related the ill deportment of the Roman Souldiers in the Camp at Sucron and that some of them went abroad by night pillaging the quiet people of the Countrey addeth All this was done by the lust and licence of the Souldier nothing by Military Discipline In one of Cicero's Orations against Verres Thy care hath beeâ—… to pillage and vex the Towns of our peaceable friends I cannot here omit the opinion of Divines which I think most true That a King who pays not his Souldiers duely is
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