regarding the worthiness of the persons but the bare Right of him that ought to receive it This young Cyrus learnt of his Tutor in this case There were two boyes that had two Coats Aulus Gill. both of different Dimensions the bigger Boy had the lesser Coat and the lesser Boy had the bigger Coat which the bigger Boy took from him being fit for himself leaving him the lesser Coat which also was fit for him whereof Cyrus being made Judge Cyrus his mistake and regarding more what was fit and convenient than what was just and Right adjudged the greater Coat to the bigger Boy and the little Coat to the lesser Boy But his Tutor told him That he had done amiss For had he been to judge what was fittest he had done well But being to judge whose each Coat was he was to regard who had the best right to it he that by force took the great Coat away or be that made it Exod. 23.3 Levit. 19.15 or bought it This is it that Moses in his Law forbids saying Thou shalt not regard the Poor in judgment but shalt judge thy Neighbour with Righteousness Which cannot be done unless we do as Philo adviseth A personis litig antibus res abstrahere Consider the matter without regarding the parties contending IX Right as taken for a rule or Law defined There is also a Third signification of the word Jus or Right whch makes it Equivalent to the word Lex that is Law when taken in its largest sense that is to say as it is a rule to Moral Actions obliging us to do that which is right In which sense it was that Horace took it where he saith For fear of wrong strict Laws invented were So in another place Jura neget sibi data He may deny that Laws for him were made Which the Scholiast thus expounds He was a man that despised all Laws In which Definition we say first that it must oblige and herein it differs from Counsels and other prescriptions which though honest yet fall not under this Notion of Law And as for permission to speak properly it is not the Action of Law but the denyal or Restriction of that Action unless it be as it obligeth another not to give him to whom such permission is granted any lett or impediment Besides it must oblige us to that which is Right and not simply to what is just because Right in this sence doth not belong to Justice alone such I mean as we have heretofore explained but unto the matter of other Vertues For many things may be just according to the letter of the Law which notwithstanding are not Right Neither is it possible that any Lawgiver should foresee all the defects of his own Law So that that which being a greeable to the Law strictly taken may sâ—em just is not so safe a Rule to walk by as that which is just in this larger sense that is Righteous and honest An example whereof we have in that Law made by Zeleucus who ordained a punishment to be inflicted upon him who contrary to the advice of his Physician presumed to drink Wine And therefore that Right which this Rule guides us unto must needs be of a larger signification than that which is simply just Of this Right so taken the best partition is that of Aristotle's into that which is Natural and that which is Voluntary or as he there calls it Legitimate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the word Law being taken in the stricter sense which difference is acknowledged both by the Hebrews and the Grecians who when they would speak properly distinguish them by their proper names X. This Law of nature defined distinguisht from that which is not properly so That which we call natural Right or the Law of Nature is the dictate of Right reason shewing the Moral Malignity or the Moral Necessity that there is in any Act by either the Repugnancy or Congruity it hath to Rational Nature it self and consequently that such an Act is either commanded or forbidden by God who is the very Author of Nature Or as †Tit. omnem virum bonum esse liberum Philo describes it Right reason is a Law that cannot lie it is not Mortal nor given by any thing that is Mortal it is not liveless nor written in Paper or insculpt on Pillars that are liveless but it is an immutable and immortal Law being engraven by an immortal hand on a mind that is immortal Cicero as * Lib. 6. c. 8. Lactantius quotes him gives this excellent description of it Right reason is a perfect Law that will not lie it is most agreeable to humane Nature and Vniversally diffused throughout all mankind It is incorruptible immortal which summons us to our duty by commanding it and drives us from all fraud by forbidding it neither are its Injunctions or prohibitions in vain to the Righteous though with the wicked they prevail not To this Law nothing must be added nor any part thereof detracted and wholly to abrogate it is impossible It is not in the power either of the Senate or the people to absolve us from our obedience to this Law neither need we to seek after any other Expositor than the Law it self Neither is it one Law at Athens and another at Rome one now and another hereafter But this one Law being both Eternal and Immutable shall bind all Nations and in all Ages As there will ever be one Common Lord and Governour of all which is God He is the sole inventour judge and giver of this Law which he that refuseth to obey must fly from and so unman himself and although he may fly from and haply avoid all other which are thought punishments yet for the wilful contempt of this only he shall be severely punished Now the Acts whereupon Right reason gives her Dictates are such as are either good or evil lawful or unlawful simply and of themselves and therefore must necessarily be understood to be either commanded or forbidden by God himself And herein the Law of Nature is different not from humane Laws only but from the Voluntary Divine for they do not command or forbid such things as are of themselves and in their own Nature either due or unlawful But by commanding them they make them the one and by forbidding them the other But for our better understanding of this Law of Nature we must observe That some things are said to belong unto the Law of Nature not properly or immediately but as the Schoolmen love to speak by way of reduction that is Some things belong to the Law of Nature by way of Reduction for as much as the Law of Nature doth not prohibit them As some things are said to be just because they have nothing in them of injustice And somethings are said to be lawful which the Laws do neither prohibit nor punish And sometimes by the abuse of the word those things which
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
notwithstanding the children do naturally owe reverence could not by her descent make the Marriage void no nor the father of a Free-man And if the Father himself be under the power of his own Father then the consents of both Father and Grand-father are required to the Sons Marriage But to the Marriage of a Daughter the Grand-fathers consent alone sufficeth Which differences being altogether unknown to the Law of Nature doth evidently prove that they arise not from the Natural but from the Civil Laws We find in Sacred story That many holy men and much more Virgins not to chuse Husbands for themselves 1 Cor. 7.36 Lib. 1. de Abrah c. ult women who by reason of their modesty and bashfulness ought especially in this case to be governed by others have in contracting Marriages submitted themselves to the authority of their Parents Non est virginalis pudoris eligere maritum It becomes not a Virgins modesty saith Ambrose †Grat. c. 32. q. 2. to chuse an Husband for her self And yet was not Esau's Marriage declared null nor his Children held as Illegitimate because in his Marriage he had not the consent of his Parent It is true That as to Daughters the chief power of disposing them is in the Father So in Euripides Hermione My Nuptial I to Parents care alone Commit for free choice therein have I none But as to Sons If we respect strict and Natural Right that of Quintilian will be found true That if it be lawful for a Son at any time to do things otherwise unreprovable without yea against his Fathers will surely that liberty is never more justifiable than in Marriage For as Cassiodore truly observes Durum est libertatem liberam non habere in Matrimonio Lib. 7. c. 4. unde liberi procreantur To be debarr'd of our free choice in Matrimony from whence our Children should be born is hard Ter. Andr. Act. 1. sc 5. nothing is more plain than that a Son in his Marriage should please himself XI It is a void Marriage that is contracted with anothers Wife or Husband That Marriage that is contracted with another mans Wife is doubtless null by the Law of Nature unless her former Husband have dismist her For so long doth his power last over her which by the Evangelical Law is not dissolved but by death The latter Marriage therefore is null for want of a moral power in the woman to dispose of her self which being lost by her former Marriage doth vitiate all those subsequent effects that attend it because every Act is but the invading of anothers Right So likewise on the other side by the same Law a Marriage contracted with the Husband of another Woman is alike void by reason of that power that Christ gives a chaste Wife over the body of her Husband XII Of Marriages between kindred Concerning Marriages between such as are nearly allied or of the same blood many difficult questions arise which are often with much zeal and animosity agitated on both sides Because he that shall undertake to assign certain and natural reasons why these Marriages that are by Law or Custome thus forbidden are unlawful should experimentally find how hard nay how impossible it is to effect it That alledged by Plutarch in his Roman Questions by St. Augustine in his Book De Civitate Dei by Philo in his Special Laws and by St. Chrysostome on 1 Cor. 13.13 as the contracting of new Friends and the strengthning our selves with new Alliances savours more of Policy than true Piety Nor are they of that force and energy as to conclude the contrary Acts to be either unlawful or void Whereunto may be added That some cases there may be wherein such prohibited Marriages may be more profitable and politick than others The Marriage of kindred sometimes profitable and politick as may be collected not only from that which God himself in his Law given to the Jews excepts of raising Seed to a deceased Brother having no issue But from that also of a Virgin left by her Father as sole heir of all his estate who by the Grecian and Hebrew Laws was to be Married to the next of kin to preserve the name and Estate in their own Tribe and Family and from many such like cases which do or may occur But yet from this general rule Incestuous Marriages forbid by the Law of Nature and why we must except the Marriages of Parents with their Children in what degree soever the reason whereof is sufficiently evident For neither can the Husband who by the Law of Matrimony is the head of the Wife pay that respect and reverence that Nature binds him to give to his Mother nor the Daughter to her Father For though she be subordinate to her Husband by Matrimonial Right yet doth her Marriage allow her so great a Familiarity with her Husband as is altogether inconsistent with the duty of a Child Paulus the Lawyer was in the right when having saâ—d before That in contracting Marriages the Law of Nature and Modesty were chiefly to be regarded he added That it was against modesty for a man to take his own Daughter to be his Wife And Philo in his Special Laws condemns it as an execrable wickedness to pollute the bed of his deceased Father which as a thing Sacred ought not to be toucht and without regard to either the age or the reverence of a Mothers name to make himself both Son and Husband to the same Woman and to make her both Mother and Wife to the same Man Wherefore such Marriages are doubtless not illegal only but void by reason of something that is vicious which perpetually cleaves to the effects of it Neither is that Argument of Diogenes and Chrisippus which is drawn from the practice of Cocks and such like dumb creatures sufficient to prove that such commixtures are not repugnant to the Law of Nature That is unlawful which is repugnant to Humane Nature Lib. 2. Contr. Jâ—â—it For as I have already said it is enough to conclude any thing unlawful That it is repugnant though but to humane nature This is that Incest which the Lawyers Paulus and Papinian wrote to be by the Law of Nations committed between the degrees ascendent and descendent And this is that Law of Nature which as Xenophon notes is no less a Law because it was contemned by the Persians Medes Indians and Aethiopians for which they were punished with perpetual Wars Parricides Fratricides as Philo first and after him St. Hierome observed For as Michael Ephesius well interprets it That is Natural which is of common use amongst such Nations as are uncorrupted And that live most agreeable unto Nature And therefore Hippodamus the Pythagorean calls these incestuous commixtures inordinate and unnatural lusts unbridled passions and abominable pleasures Such were those of the Parthians whereof Lucan thus complains Epulis vesana meroque Regia non ullos exceptos legibus horret Concubitus With
is ibid. Malefactors to be either punished delivered or banished page 398 Major part hath the power of the whole page 40 Man made to do good Pref. iv greedy of Society iii. eminently just a Magistrate born 369. only capable of knowledge by general Rules iv born naked others armed v. all of one Stock page vii Men use men as Instruments page 471 Merchants and Artificers to be spared in War page 506 In Markets nothing to be spoken but truth page 441 Marriages what lawful 106. the consent of Parents not necessary ibid. of Cousen Germans Pref. iii. by the Law of Nature what 105. with anothers Wife void 107. dissolved by Captivity nor to be restored by Postliminy 490. under the Law not undissolvable page 105 In Marriage the obligation is mutable ibid. Marriages though forbidden to be made yet being made are not thereby null'd page 111 112 Matrimony wherein different from Wedlock ibid. to contract a common Right 86. to deny to Strangers injurious to humane nature ibid. yet being denied no just ground of War page 179 In reference to Marriage things given alter not the property if it succeed not page 192 The end of Marriage is to know whose the Child is page 124 Marriages what justifiable by the Law of Nature 106. why and by what Law or custom forbidden between Kindred is difficult to prove 107. by the Hebrew and Grecian Laws in some Cases enjoined ibid. In Marriages more remote degrees seem not forbidden but amongst Christians they are and why page 111 Marriages incestuous forbidden by God to Noah or Adam page 109 In Marriage a Son should be left to his own choice page 107 Marriage Concubinary what 125. some amount to true Marriages and when page 106 107 Marriages second in Brabant page 125 Marriage Rites among Christians page 105 Marriage not to be contracted with prophane Persons page 186 In some Marriages the Children shall not inherit page 124 125 Marriage with divers Women of old lawful 106. between Brother and Sister by what Law forbidden and whence unlawful page 108 Marriage to contract to whom and how far forth a liberty due page 86 The Measure whereby things are naturally valued is their want page 161 Members to preserve it is lawful to kill page 72 Memory of wrongs done not to outlive them that did them page 400 Mercy in punishing and cruelty in sparing 3 mitigating punishments as well as in their remission page 372 Mercy Judgment and Righteousness how distinguished by the Hebrews page 177 To be Merciful brings great advantage to a Conquerour page 516 Might with Right doth wonders Pref. ix Mildness of the Fathers towards Hereticks page 391 392 Military Discipline dearer to the Romans than their Children page 491 Military Oaths page 28 Military Acts and Orders some repugnant to Christianity page 26 Minors whether bound by their Promises page 152 Minor Part not guilty if over-voted by the Major page 399 Minos why hated Pref. x Mischances mischiefs faults how distinguished page 500 Mixt Government gained by War page 486 Modesty sometimes forbids what Law permits page 494 Moderation as to the acquisition of Empire 524 525. in killing men 497 498. in spoiling things useless in War page 516 The Moderation of Scipio the African 481. of Antiochus page 100 Monogamy whether commanded by the Law of Nature or by the Evangelical Law only 105. commended in the Creation but Polygamy not condemned page 106 Monopolies not all condemned by the Law of Nature page 161 To Monopolize all the Fruits of a Nation which are not elsewhere to be found whether lawful page 87 Money whence it receives its value page 162 Moral Duties more strictly required by Christ than Moses page 10 Moses's Laws Patterns for Christians unless in some Cases ibid. Mothers bound to nourish their Children that have no certain Father page 123 Moveables not capable of reception by Postliminy page 492 Mountains dug through to let in the Sea page 90 Multitudes to be spared page 509 Murderers to be made use of against Enemies whether lawful 463. see Homicides Mutius Scaevola commended ibid. Mutual Subjection of King and People refuted page 41 N. NAbides his controversy with the Romans page 196 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what 174. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what ibid. Naucum what ibid. Names of Countries how to be understood page 547 Nations may be equal in liberty though not in Dignity page 49 Natures first Principles and what are consequent to them what page 11 12 Nature sometimes taken for custom page 163 164 Nature indulgeth many things which the consent of Nations approveth not page 90 91 Natural instinct common to Men with Beasts makes no distinct Law page 7 The Nature of any thing is known by that which is sound and perfect not from that which is corrupted page 108 Natural issue differenced from that which is Legitimate 124 125. they may succeed their Father unless some Law hinder it ibid. they may be adopted ibid. not capable of that Empire that is derived from the People page 125 Natural some things may be not simply but during such a condition as they were first in as Deer Fish page 135 Not every thing that is by the Law of Nature lawful is so by Gods Laws page 74 Navigation a great help to humane Society 84. in some parts of the Sea prohibited 94. but this being by consent takes not away the freedom of the Seas as to Navigation ibid. Naval Societies page 163 164 Necessaries to buy a common Right unless they from whom such things are required do stand in need of them page 86 Necessity knows no Law but that of Nature 81 82 119. it makes what is properly ours common 81. yet under the condition of restoring if able 82. yet if that necessity be avoidable it justifies not ibid. or if there be a like necessity in the right owner ibid. if it justify not yet it extenuates page 501 Necessaries to a lawful end are lawful page 434 Necessity what Right it gives to Neuters page 531 Through Necessity what is done breaks not the Peace page 550 Neglect of punishing punishable page 393 Neighbour who by the Hebrew Law and who by the Gospel page 23 Neighbours power to diminish no cause of War page 76 77 Nephew from the first Son prefer'd before the second Son page 132 Whether the younger Nephew from the Son be to be preferred before the elder from the Daughter page 133 To Nephews is due aliment page 122 123 Neuters in War their duty 533. nothing to be taken from them without full satisfaction page 531 Ninus the first that made War to enlarge Empire page 485 524 Nocents some to be spared for many Innocents 434 504. to be punished by the Innocent page 363 Nocent he is not that punisheth Nocents page 362 O. OAths sacred among Heathens 166. may differ in form not in substance 171. require great deliberation 167. and great reverence 175. so to
Representative Succession admitted by the Hebrews 124. when in doubt to be allowed of ibid. but lately admitted among the Germans ibid. Reprizals what 448. the Sea-Laws concerning them 435 436. their Right reacheth not to the Lives of such as are innocent 448. they may be taken when no War is denounced page 447 When the Right of Reprizals passeth to them that take them page 449 Concerning Reprizal their difference of the Civil Law and the Law of Nations and what persons and Goods are exempted page 450 Things taken without the Territories of either Party whether lawful Prize page 480 Res rapere Res reddere what page 456 Request of a Superiour in a League equivalent to a Command page 51 To Require things what it signifies page 453 Required what is before War be denounced page 452 Resistance of the supreme Power whether in extreme necessity lawful 54 55. disallowed by the Primitive Christians even to persecuting Emperours 57 58. unlawful by the Gospel 55. the opinion of Barklay concerning it 63. in what Cases lawful 59 60 justifiable by inevitable necessity by the example of David and the Maccabees 60. naturally lawful civilly not 53. and why page 54 Obstinate Resistance justifies not the killing of men internally page 508 Resistance in some Cases may be reserved in the translation of Kingdoms page 60 To Restitution who are obliged either by doing or not doing page 201 Restitution ariseth from Dominion page 146 No Restitution of things which are anothers if in Case they perish if in Case we use them thinking them our own 148. yet are we bound restore the profits if any be ibid. Restitution must be made of the things and profits 147. necessary to repentance 495. it must be made to the right Owner 147. not due in some Cases page 149 Restitution intended justifies not Rapine unless in a Case of absolute necessity page 149 Things bought or deposited may be restored to their Right Owner page 149 Restitution of things taken in an unjust War 528. what may be deducted 529. it must be to the full page 496 No Restitution of places or persons freely surrendred unless so exprest page 546 Of Restoring things after War some Cautions page 547 No Restitution in a just War sometimes by reason of the evil intention in its prosecution page 331 Restitution where the Câ—â—se of War is doubtful how to be moderated page 530 Restitution of things taken from the Enemy who held them unjustly page 451 452 To Restitution who are wholly and who in part bound page 202 Retaliation not to extend beyond the persons offending 461 539. agreeable to the Law of Nations 367. tolerated under the Law to avoid greater mischief 371. not to be exacted by Christians ibid. in what sense required by the Hebrews its use both amongst Hebrews and Romans ibid. Retreat sounding to kill an Enemy is homicide page 534 Return to the Enemy who may be said page 531 Revenge by retaliation naturally lawful page 366 367 Revenge whether agreeable to the Law of Nature 364. whether by the Law of Nature and Nations lawful 366. whether permitted to Christians how restrained 369 370 it differs not from injuries but in order only 364. taken with delight unnatural 370. in that it mitigates grief whence it proceeds page 364 To Revenge his own Quarrel every man hath a Right naturally 66. why now committed to Magistrates 370. not to go beyond the persons that injured us page 400 Reward for labour how encreased or diminished 162. to whom due if two at once fulfil the Condition page 196 The Reward promised to Thamar due by the Law of Nature not by the Civil Law page 154 A Reward demanded by a Souldier for killing his own Brother in the head of his Enemies Troops page 458 Right in War what 2. taken for a moral qualification of a person divided ibid. for aptitude or fitness 3. taken for a Rule or Law 4 divided into natural and voluntary ibid. Right reason a Rule infallible ibid. Right by the Law of Nations distinguisht from that which hath some effects of Right Pref. xv Right of Government distinguisht from the ill management of Civil Affairs page 41 Right distinguisht from Just 54. Right extreme sometimes extreme wrong ibid. What Right of Kings it is that Samuel describes page 54 What Right a Lord hath over his Slaves 115. whether it extend to death 116. over the Children of his Slave born in his house ibid. A Right a man may have to that taken from another page 122 Right acquired by Law 121. By the Civil Law none can right himself page 122 Right of a Father over his Children distinguisht into Natural and Civil 104. of an Husband over his Wife 104 105. of Societies over their Members page 114 By the Right of Nations many things claimed that are not thereby due page 134 The Right of Strangers not subject to the supereminent dominion of a King 178. nor of a Subject without Cause ibid. Right better lost than contended for sometimes 416 417. not to be extended to the full 434. when said to be denied 448. considered directly and indirectly page 434 A Right none can give that hath none 528. incorporeal gained by War page 486 The Right of War makes no distinction of Age or Sex page 459 The Right of the Sword in Histories sacred and prophane what page 17 Right distinguisht from its exercise page 52 The Right supereminent of Kings and States whether it can free them from the breach of Faith given to their Subjects page 539 Right external what 395. how differenced from internal page 453 The Right of Kings and States when by Peace said to be remitted page 547 The Right of Nations concerning inequality in Contracts page 164 Righteousness Judgment and Mercy how distinguish'd page 177 Rivers how held in propriety 89. the whole sometimes belongs to one Territory and none to another 95. as flowing streams common 82. but as the profit his that ownes the Banks ibid. changing their course whether they change the Bounds of the Territory page 94 A River in what sense said to be always the same page 141 c. Rome once the common City 525. regardless of Captives or Prisoners and why page 488 The Romans severe in their Victories 503. they anciently abstained from fraud in their Wars page 444 c. The Roman Empire in whom now 143. founded in the People of Rome page 144 The Romans claimed that to themselves which their Enemies took from others page 471 All the Roman Tribes disfranchized for ingratitude page 39 Roman Dictators absolute though temporary page 43 The Romans chuse their Emperour when residing at Constantinople page 144 The Roman Empire not universal though sometimes so called page 407 The Romans Right over their Children 104. their custom concerning Lands taken in War 472. concerning the spoil 474 475. Captives redeemed 491. those that return by Postliminy ibid. concerning things taken 518 519 concerning their Captive Kings page 503 Rules guiding
Nature than the destruction of an enemy IV. That War is not repugnant to the Law of Nations By the Law of Nature then which may likewise be called the Law of Nations it is evident that all War is not to be condemned nor yet by the voluntary Law of Nations as Histories will sufficiently instruct us wherein the Laws Customs and manners of all people are faithfully recorded Nay by the very Law of Nations were Wars introduced saith Hermogenianus so he that wrote the lives of men famous in their several ages in that of the life of Themistocles tells us That he acknowledged that it was by his advice that the Athenians surrounded their City with Walls which notwithstanding by the common right of all Nations they might do whereby to defend their publick and private Gods from the sury of their enemies Yet whereas I said before that by the Law of Nations War was at the first introduced the words will as I conceive admit of a better sense than what at the first view they seem to import as namely that there are some certain forms and Ceremonies introduced by the Law of Nations which by the consent of Nations do give such and such peculiar effects to such Wars as have them whence ariseth that distinction whereof we shall hereafter make use between a War that is solemn by the Law of Nations which also is said to be just that is full and absolute and a War that is not solemn yet ceaseth not therefore to be just that is congruous to Right for even other Wars so as the cause be good the Law of Nations doth neither approve of nor yet impugne as shall be shewed more at large hereafter It is ordained as a Law amongst all Nations Lib. 43. saith Livy that Arms may be repelled with Arms. With whom agrees Florentinus It is generally consented unto by all Nations that we may forceably drive away all violence and wrongs offered unto us whereby our lives are endangered Which justifies all Wars that are merely defensive for as much as Nature is much better pleased with its own preservation than with the destruction of enemies V. Nor to the Voluntary divine law before Christ But the main question is Whether it be agreeable to the divine voluntary Law to make War And here if any shall object that the Law of Nature being immutable nothing can be decreed by God himself contrary to it I answer that this is true in such things as the Law of Nature doth expresly either command or forbid But not in such things as by the Law of Nature are only lawful only that is tolerated for such as these because they belong not properly to the Law of Nature but are without its jurisdiction Obiections answered may be either commanded or forbidden The first objection that is brought out of the holy Scriptures against War is that Law given to Noah and his posterity Gen. 9.5 6. Gen. ◠5 6. Where God speaks thus Surely the blood of your lives will I require at the hands of every beast will I require it and at the hands of man at the hand of every mans brother will I require the life of man Whosoever shed mans blood by man shall his blood be shed for in the image of God made he man Some there are that would have the former words of requiring blood understood in the largest sence and the latter words of shedding blood they would have to be a commination and not an approbation but I like neither For the prohibition to shed blood is of no larger extent than that in the Moral Law Thou shalt not kill which doth neither prohibit a Magistrate from putting to death an obstinate Malefactor nor doth it forbid a lawful war Neither doth the one or the other so much enjoyn any new thing as revive and proclaim that old Law of Nature which through evil custom had been almost defaced where by killing and shedding of blood we are to understand such a manner of putting a man to death as implies some vice As by the word Homicide or Murther we understand not every putting a man to death but the wilful destroying of an innocent person But that which follows concerning the shedding of blood for blood is to be understood as I conceive not so much of the bare fact as of the right to do it which I thus explain That every man should suffer as much evil from others as he hath done unto others is not naturally unjust according to that old Rhadamanthaean Law To suffer as we do is just and right That Phalaris should be tormented in his own Bull That he that intended mischief to another should suffer the same mischief from another is justissima patiendi norma as Seneca speaks The most equal rule of sufferance that can be ordained Out of a deep sence of this natural Equity it was that Cain his hands yet reeking in his brothers blood past this sentence upon himself And it shall come to pass that whosoever finds me shall kill me Gen. 4.14 But God in the infancy of the world either by reason of the scarcity of men or because this sin was rarely practised and so the less need of exemplary punishments to deter them did by an Edict repress that which seemed naturally to have been lawful and adjudged the Homicide to wander as a vagabond forbidding all men to have any commerce or to make any contract with him yet would he not have his life taken from him Thus also did Plato ordain among his Laws and that this punishment was much used among the ancient Greeks Euripides testifies in these words How wisely did our Ancestors decree That he that guilty was of blood should flee Far from Commerce or sight of men that he Punish'd by flight rather than death might be To the same purpose is that of Thucydides It is very probable that anciently small punishments were awarded to great crimes but at length those being slighted they proceeded to death Servius upon the first book of Virgil descanting upon these two words Solvetis Luetis saith That these words were derived from the payment of money Antiquorum enim poenae omnes pecuniariae fuêre For among the Ancients all punishments were pecuniary The like we find in Lactantius Hitherto it was accounted impious to put men to death though never so wicked grounding their conjecture upon that one notable example of Cain That it was not the will of God that Homicides should be so punished whereupon it grew at length into a Law so that Lamech not long after having committed the like sin or rather if he did commit the like for Moses his words will bear this sence yet by this one example promised to himself the same impunity Gen. 4.24 Nevertheless though before the Flood in the age of the Giants through the remisness of punishments men grew savage and outragious killing each other like beasts yet when after the flood the earth
also those that succeed to them in a right line hold their Kingdoms by an Usufructuary right that is they hold them as to all the rights and profits but not to alienate them But others hold their Kingdoms by a full Right of Propriety as they that by a just War have conquered them Or he to whom any people to prevent greater mischiefs have yielded themselves Subjects for protection so as they reserve nothing unto themselves Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power because it was not perpetual For the Nature of all Moral things are best known by their operations Wherefore those powers that have the same effects are to be called by the same name But a Dictator during his time exerciseth all Rights that a King doth who holds his Kingdom by a full right Neither can any Act of his be made void by any other as may appear by the Case of Fabius Rutilianus whom when the people would have preserved they could deal with the Dictator by no other means but by Petition Whence we may conclude That he had the same supreme power Now the Duration or Continuation of a thing alters not the nature of it yet if question be made concerning the dignity which is usually called Majesty doubtless he that hath it perpetuated unto him hath the greater Majesty than he that hath it for a time limited only because the manner of holding it adds much to the Dignity of him that holds it Now what hath been said of Kings Protectors have absolute power during their time may also be said of such as are either during the Minority of Kings or during their Captivity or Lunacy appointed Protectors For neither are those subject unto the people nor is their power revocable before the time come appointed by the Laws But it is otherwise with those who have a Right which is at any time revocable Some Kingdoms held during the plâ—asure of the people Procop. Vand. lib. 1. As they who reign only during the pleasure of others such was the Kingdom of the Vandals in Africa and of the Goths in Spain who were as often deposed as they displeased the people And every act of theirs might be made void because they who gave them that power gave it under condition of Revocation And therefore not having the same effect they could not be said to have the same Right XII Some Soveraign powers are held fully with a right of alienation Against what I have before said That some Kingdoms are held in full right of propriety that is as Patrimonial There are very learned men that make this objection That Men being free are not to be traffickt away from one to another as things that are bought and sold But as the power of a Master is different from that of a King so is personal liberty from that which is Civil And the freedom of singular persons from the freedom of States The Stoicks themselves confess That there is a kind of servivitude in subjection Hottom Cont. illust qâ—ae i. 1. Diog. Laâ—â—t 1 Sam. 22.28 2 Sam. 10.2 1 King 9.22 Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants As personal liberty excludes the power of a Master so also doth civil liberty that of Empire and all manner of Soveraignty properly so called Livy thus opposeth them Before men had tasted the sweetness of liberty they desired a King And again What a shame is it for the people of Rome who when they served under Kings were never straitned by War nor besieged by an enemy Lib. 45. being now a free people to be besieg'd by the Hetruscans And in another place The people of Rome live not now under Kingly Government but in liberty And elsewhere he opposeth those Nations that were free unto those that lived under Kings So also Seneca the Father Sâ—as 1. We ought not to give our opinions in a Free state in the same manner as we did under Kings Yea and Cicero Either we did not well to expel Kings or we ought to restore the people to liberty De leg 3. Ann. l. 1. not in words only but in deeds After these comes Tacitus The City of Rome saith he was at first governed by Kings but it was L. Brutus that instituted Liberty and Consular Authority And to be short every where among the Roman Laws when they treat of War and recuperatory Judgements all Foreigners are distinguisht into Kings and Free people The question then here put respects not personal but civil subjection In which sense some Nations are said not to have power over themselves Hence is that in Livy Which Cities Fields and Men were sometimes under the power of the Aetolians And that also Are the people of Collatia a free people i. e. have they any power over themselves Nevertheless to speak properly when any people are said to be alienated When a Kingdom is alienated it is not the people but the right of governing them that is alienated it is not the men but the perpetual right of governing themselves as they are a people that is alienated As vain and frivolous is that Inference which concludes That because Kings conquer Nations by the blood and sweat of their Citizens therefore what is so conquered ought of right to belong rather to them than to him For possible it is That that King may pay his Army out of his own private estate as M. Anthony did in his Bohemian Wars who when the Roman Treasury was exhausted being unwilling to impose any more Taxes upon the people brought into Trajans Court and made sale of all his Vessels of Gold Silver Crystal and Myrrh together with his own and his wives Robes of Silk and Gold and all other their Ornaments and Jewels for the maintenance of the War Or he may pay his Army out of the rents and profits of that patrimony which attends the Principality And therefore Ferdinando claimed to himself all that part of the Kingdom of Granada which he had gained with the rents and profits he had raised out of Castile during the time of his Marriage as Mariana testifies Lib. 28. Hist Hispan For although a King have but the mean profits arising out of that Patrimony in the same manner as he hath the right of governing the people who have elected him yet are those profits properly his own As it is also in the Civil Law where though the Inheritance be judged to be restored yet the profits are not because they are perceived not from the inheritance but from the thing it self Possible therefore it is that a King may be so possest of the Government over some people in his own proper right that it is in his own power to alienate it As it was granted to Baldwin by those that accompanied him in his expedition to the Holy Land That the half of
Christian Doctrine X. Single Combats permitted Near of kin unto this are single combats between Competitors the use whereof is not altogether to be rejected for where two persons standing in competition for one thing which cannot be divided are ready to embroil a whole Nation in blood It were much better and more just that one should perish for all than that all should perish for one only In which Case that of Jocasta in Seneca is good advice Plut. Otho Theb. Rex sit è vobis uter Manente regno quaerite Try which of you shall reign But let the Kingdom still remain And this if not justifiable in the competitors themselves yet may it well be accepted of by the people if offered as being of two evils by much the lesser Thus Metius in Livy bespeaks Tullus Lib. 5. Let us agree about some way whereby it may be determined whether of us two shall reign over the other without the effusion of so much blood or the slaughter of either of our people Strabo set it down as an ancient custom among the Grecians And Aeneas in Virgil accounted it a very just thing that the quarrel between Turnus and him should have been thus decided Aen. 11. Fitter 't had been for Turnus thus t' have died And for this cause it was that M. Anthony challenged Caesar to a single combate as Plutarch records Vit. Ant. Sure it is that amongst other customs of the Ancient Francks Agathias highly commends this whose words being worthy of Eternal Memory are to this purpose No sooner did any quarrel arise between their Kings but immediately they betake themselves to their Arms they raise Armies and march against each other so furiously as if nothing but an absolute conquest could end the controversie but yet as soon as the Armies met and faced they presently laid aside all animosity and made peace thereby enforceing as it were their Kings to dispute their grievances rather by Law than Arms or if that pleased them not then to end their quarrels with the peril of their own lives only as judging it neither just nor reasonable nor indeed agreeable to their national customs for their Kings to sacrifice the Commonwealth to their private hatred wherefore they instantly disband their Armies reconcile their Princes and make Peace Tanta in subditis cura justitiae patriae amor in regibus animus placidus suis obsequens So great in the subjects was their esteem of justice and love to their Country and in their Kings their moderation of spirit and their compliance with the people in order to their common safety XI In cases equally dubious the present occupant hath the best right Although where the equity of the cause is doubtful both Parties are obliged to seek after conditions of peace to prevent the miseries of War yet doth it more concern him that demands than him that enjoys what the other requires as in the like equal cause Melior est possidentis conditio The title of the present occupant is presumed to be best as being most agreeable not only to civil but to natural Right the reason whereof we have already given elswhere out of Aristotle's Problems whereunto we must here add That War cannot be lawfully made by him who though he know his title to what he claims to be good yet cannot produce evidence sufficient to convince the present occupant of the illegality of his possession because he hath not a Right to compel his Adversary to leave his possession XII If neither be possest then a partition is just Where the Right is equally ambiguous and neither party in possession or both equally then he is to be reputed unjust that shall refuse an equal partition of the thing controverted being offered unto him XIII Whether a war may be on both sides just explained by many distinctions By what hath been herein said it will be no hard matter to resolve that question which is so frequently controverted Whether a War in respect of the principal promoters of it can be on both sides just where we must first distinguish between the various acception of the word Just * So Gratian distinguisheth justice into that which respects the cause the order and the mind c. 11. q. 5. post C. Episcopus For a thing may be said to be just in respect of the cause or according to the effects Again a thing a may be just in respect of the cause either according to the special and strict acception of justice or according to its more general acception as it comprehends whatsoever in equity or honesty ought to be done Again the word Just taken in its special signification may be subdivided into that which respects the work done or into that which respects the mind of him that doth it for the agent may sometimes be said to do justly whilst he doth not unjustly though that which he doth be not just As Aristotle * Eth. l. 5. c. 10 11. Greg. rightly distinguisheth between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to do unjustly and to do that which is unjust Bonis male utuntur qui temporali lucro juste judicant They make ill use of things in themselves good who do justice for rewards sake because it is the hopes of gain and not the love of justice that excites them to defend the truth Now in this special acception of the word Just and as it relates to the thing it self no War can be on both sides just as neither can any other contest be Quia facultas moralis ad contraria non datur per rei ipsius naturam Because the very nature so the thing about which the dispute was will not admit of a moral power to things that are contrary as namely to do a thing and yet to oppose the doing of it But yet it may very well be That neither of the Parties warring against each other doth unjustly because no man can be said to do unjustly but he that knows that which he doth to be unjust But many men do not know that they do amiss though that which they do be in it self unjust so when men go to Law they may justly that is with a good mind and intention do it on both sides because they do both conceive that they are in the right To some things the Right is not discernable whose it is and then whilst each endeavours to take that from another which he thinks belongs to himself who can condemn either of injustice for of many things as well in point of Right as in matters of fact whence Right ariseth men are ignorant Now in the general acception of the word Just that is said to be just in the doing whereof the Agent is altogether innocent for the act may be unjust and yet the Agent blameless by reason of his insuperable ignorance An example whereof we have in such as being through no default of theirs ignorant
contrary if being at at liberty he shall dye the ransome shall be recovered because he enjoyed that for which the ransome was promised yet I confess the Contract may be so made that the ransome shall be due simply and immediately from the time of the Contract and then the person taken shall not from thenceforth be held as a Prisoner of War but as one that doth freely engage himself as a Surety for the payment thereof So on the contrary the Contract may be so made that the ransome shall not be due unless the Prisoner live and be at liberty upon a Day prefixt but these things being less natural shall not be presumed to be done unless evidently proved XXX Whether he that is freed to free another ought to return the other being dead It may likewise be questioned whether he that is released on condition that he shall release another if that other dye before he be released is bound to return into Captivity I have elswhere * Bo. 2. ch 11. §. 22. 15. and in this Book ch 20. §. 58. proved that a promise freely made for the Fact of a third is sufficiently performed if nothing be omitted by the Promiser in order to its accomplishment but if a promise be made upon a valuable consideration the Promiser stands obliged to the full value of what he promised Just so it is in this case for he that is released is not bound to return into Captivity because it was not so agreed upon nor will that indulgence that is given to liberty admit it so to be tacitly understood neither ought any man to make a gain of another mans liberty but yet he that is so dismist out of Prison ought to pay the value of that which he could not perform For this cause was Balionius much blamed by Mariana who being released upon his promise to release Carvailius Carvailius dying before he could be released refused to pay the value of his ransome This answer I conceive to be more agreeable to the naked and simple truth than that which is delivered unto us by the Interpreters of the Roman Laws CHAP. XXII Concerning Faith given by inferiour Commanders in War I. Of the several kinds of Commanders II. How far an agreement by them made binds the supreme power III. Or gives occasion to such an obligation IV. What if any thing be done contrary to commands this explained by distinctions V. Whether in such a case the contrary party be obliged VI. What the Commanders in War or the Magistrates may do concerning their inferiours or for them VII It is not in the power of a General to make Peace VIII Whether hâ— may grant a Truce this cleared by a distinction IX What security of persons and what of things may be granted by them X. Such Agreements are to be strictly understood and why XI A surrender accepted by a General how to be understood XII The addition of this caution if the King or the People shall think fit secures the General XIII How the promise of delivering up a Town is to be interpreted I. The several kinds of Commanders AMONGST publick agreements this is reckoned by Vlpian as one when the Generals of each Army do agree about some things between themselves We declared before that when we had sufficiently discourst of Faith given by the supreme Powers we would likewise say somewhat of Faith given by subordinate Powers and that either between themselves or unto others whether those powers were next immediately to the supreme As that of Generals to whose Conduct the Army is committed whereunto we may fitly refer that of Livy Nec Ducem novimus Lib. 4. nisi cujus auspicio Bellum geritur We acknowledge no other Captain but him to whom the management of the whole War is committed Or whether they are such as are Commanders under them between whom Caesar in his Commentaries distinguisheth thus Lib. 3. The office of a private Captain is one thing and the office of a General is another the former doth but execute particular orders but this latter ought freely to consult and provide for the safety of the whole II. How far agreements by them made bind their Soveraigns As concerning these mens engagements there ought to be a twofold inspection first Whether the supreme powers are thereby engaged and secondly Whether they themselves are bound by them The former of these may be determined by what we have already said namely That Princes may be obliged by such as they depute to declare their wills whether particularly exprest or collected from the nature of their office for he that grants a power grants as much as in him is all things necessary to that power which in moral things is morally to be understood whence we may collect That subordinate Commanders may oblige their Soveraigns two several ways first by doing that which in all probability belongs to their place or office secondly by doing that which belongs not to their office yet which they have a special Commission to do in case that Commission be either publickly known or at least unto those with whom they have to do III. Or give occasion to such an obligation There are also other ways whereby a Soveraign Prince may be bound by the facts of his Officers yet so that that fact is not the proper and immediate cause of that obligation but the occasion only which may be done two ways either by conâ—â—â—ting unto it when done or by the thing it self Their consent will appear by their approbation which may be given not only expresly but tacitly that is when the supreme power had knowledge thereof and yet permitted them to be done which cannot with any probability be referred to any other cause and how this may proceed we have elsewhere shewed By the thing it self he may be so far obliged Bo. 2. ch 4. §. 5. ch 15. §. 17. as not to enrich himself by anothers loss as if by an agreement made by his Ministers a Prince receives any benefit he is thereby bound to perform that part of the said agreement which concerns himself to perform or if he refuse to do it then he is bound to forego the benefit which he either hath or may receive by that agreement for this is that equity which as we have often elsewhere said evens the scales of justice And hitherto and no farther is that saying true Si quid utiliter gestum sit valet Whatsoever contract brings profit binds the Contracter And therefore we cannot but condemn them of injustice who refusing to fulfil the agreement yet are resolved to detain that which but by that agreement they could never have had as the Romans did when they refused either to confirm the agreement made by Cnaeus Domitius or to set at liberty King Bituitus whom Domitius had first invited as his Guest and then perfidiously taken and sent bound to Rome which fact as Valerius Maximus testifies Senatus nec
imprisonment yea and even to death it self This then being agreeable to the Laws of Nature and Nations and being the end of all municipal Laws must needs be the Dictate of right reason and so the voice of God himself whereunto whosoever willingly conforms himself will certainly so moderate his desires that he will never covet what is not his own nor either by force or fraud impoverish others for his own private gain than which nothing can be more unnatural nothing more unreasonable nothing more destructive to humane Society Neither is it against the Nature of humane Society for a man to provide for himself so as he do not damnifie his Neighbour and by consequence that force which doth not violate another mans right is not unjust which the same Cicero thus expresseth Since there are but two sorts of decertations the one by arguments the other by plain force the former being proper to men the other to beasts we ought to make the latter our refuge when by the former we cannot prevail And in another place Quid est quod contra vim fieri sine vi posset Ep. Fam. l. 12. ep 3. What remedy can we have against force but by force So Vulpian To repel force with force is a right that Nature ordains for all creatures Arms against Arms all Nations do allow Ovid. II. This proved by Histories What I have already laid down namely that it is not every War that is repugnant to the Law of Nature may be farther justified out of the Sacred Story For God by his High-Priest Melchisedeck did approve of the War made by Abraham and his Confederates upon those four Kings that came to plunder Sodom Yea and Melchisedeck blesseth God for the Victory Blessed saith he be the most high God who hath delivered thine enemies into thine hand Gen. 14.20 And yet had Abraham no special Commission from God for it but was excited and perswaded thereunto by the mere Law of Nature being himself a man not only exceedingly holy but very wise according to the Testimony that Berosus and Orpheus give of him The War made by the Israelites upon the seven Nations whom God delivered up unto them I purposely omit because they had a special warrant from God to make War upon that people who had highly provoked him and therefore those Wars are in holy Writ called The Wars of the Lord being undertaken by Divine not humane authority More to our purpose was that War made by the Israelites under the conduct of Moses and Joshua against the Amalekites who had forceably opposed them in their passage towards Canaan which though it was not commanded to be done yet being done was approved of by God Exod. 17. Exod. 17.14 Nay farther God himself prescribed unto Moses certain general and lasting Rules and Ordinances how he should make War whereby he sufficiently testified That War might sometimes be just Deut. 20.10.15 though we have no special command from God to make this or that War for there Moses makes a manifest difference between the case of the seven Nations and the case of other people For these they might receive to mercy but not them And seeing he doth not prescribe for what particular causes they might make a just War it may reasonably be presumed that those causes may easily be discerned by the very light of Nature such was the cause of the War that Jephtha made against the Ammonites for the defence of their boundaries Judg. 11. And that which David was enforced upon against those who had violated the rights of his Ambassadors 2 Sam. 10. And it is worthy to be observed what the Author to the Hebrews records concerning those pious Heroes Gideon Baruck Sampson Jephtha David Samuel c. That by faith they subdued Kingdoms and put whole Armies of the aliens to flight Heb. 11.34 Where under the notion of faith Heb. 11.34 is included a full assurance they had that what they then did was acceptable to God And upon this presumtion also it was that David is said by a wise woman to fight the Lords battle and made a pious and just War 1 Sam. 25.28 which could not be if all manner of War had been utterly unlawful III. By examples To the authority of Sacred Story we may add for greater confirmation the universal consent of all or at least of the wisest of all Nations concerning that force whereby our lives are defended Cicero gives us the Testimony of Nature it self Est haec non scripta sed nata lex This saith he is no written Law but a Law that is born with us Pro Miloâ—e that if our lives be endangered either through force or Treachery all means we can use for our safety are just and honest And again This the learned are taught by reason the unlearned by necessity the Nations by custom and the very beasts themselves by natural instinct to repel by all means whatsoever all force and violence that shall be offered us whereby our bodies our members or our lives shall be endangered So Cajus the Lawyer Against all imminent dangers De Bello Jud. l. 3. c. 25. natural reason teacheth us to defend our selves And Florentinus Whatsoever any man doth in his own defence is just and lawful Josephus also informs us That to preserve life is a Law that Nature her self hath imprinted in all living Creatures And for this cause it is that they who endeavour to dispoil us of our lives are justly accounted our enemies Which indeed hath so much of natural equity that even amongst beasts who as I have said already have nothing of Justice or Law among them more than a faint shadow or resemblance of it we distinguish between that beast which of his own accord assaults us and that which assaults us in its own defence And Vlpian notwithstanding that he had said before That Beasts wanting the use of reason could not be said properly to do wrong yet he presently subjoyns that when Rams or Bulls fight and kill each other by the Law of Qu. Mutius they were to distinguish between them so that if he perished that was the aggressor the action was null but if he perished that was provoked the action was good The ground of which Law is set down by Pliny Because saith he there is no sensible Creature but what is impatient of an injury and being assaulted will assault again For as he well observes Lyons will not prey upon Lyons nor Serpents bite or sting Serpents yet if any violence be offered them there are none but will express somwhat that is like unto anger none so stupid but being hurt will to his utmost power defend himself so that in all contests that which is defensive is the most just because Natura potior est salus nostra quam adversarii pernities * Quintil. l. 7. c. 2. See Philo in the Prefâ—ce upon the fifth Commandment Our own preservation is more agreeable to