of Justice O Just peaceable King Crown your Majesty neerest to His as with all other happiness so with this also the procuring of a Just Universal Peace 1625. THE PREFACE OF THE AUTHOR THE Civil Law whether Roman or that which is proper to any other Countrey many Writers have attempted either to illustrate with Commentaries or in a more compendious way to propose unto their Readers But that Law which is between many Nations or their Rulers whether proceeding from Nature it self or constituted by divine precepts or introduced by customs and tacit agreement Few have touched None have hitherto handled universally and in a certain order when yet the Doing hereof is of much Concernment to Mankind For Cicero truly call'd this an excellent Science in Leagues Covenants and Agreements of several people Kings and forein Nations and in all Rights of War and Peace Euripides also prefers this science before the knowledge of divine and humane things 1. This Work is the more necessary because both in our age there are and in former times there have been some who so contemned this part of Right and Law as if it were onely an empty word and had no real existence That saying of Euphemus in Thucydides is almost in all mens mouths That nothing is unjust which is profitable to a King or Common-wealth having power Whereto that is like In the highest Fortune that is more right which is more prevalent And A Common-wealth cannot be govern'd without injury Adde hereunto that Controversies arising between Nations or Kings commonly have no arbitration but are determined by force Now this is not onely the opinion of the Vulgar that War is very far distant from all right and equity but even learned and prudent men do often let fall words favourable to that opinion For nothing is more frequent than Right and Arms opposed one to aother Old Antigonus derided one that presented to him a Commentary of Justice when he was assaulting Cities And Marius said He could not hear the Laws for the clashing of Armour That very Pompey of so bashfull a Countenance was bold to say What would you have me think on Laws now I am armed In Christian Writers many sayings of the like sense occur One of Tertullians may suffice instead of all Deceit rigour injustice are the proper businesses of wars All that are of this mind will no doubt object against us that in the Comedy These uncertain things if you seek to order by certain Reason you do but endeavour to be mad with Reason Wherefore seeing in vain is any Disputation of Right if there be no such thing it will pertain to the commendation and defence of our work that this very great Errour should briefly be refelled Now that we may not have to do with the Multitude let us allow them an Advocate and whom rather than Carneades who had attained to that which was the height of his Academy that he could put forth the strength of his Eloquence for Errour no less than Truth He therefore when he had undertaken to oppose Justice that especially of which we treat found no stronger Argument than this That Men had established for themselves various Laws with respect to their Utility according to their Customs and among the same Men often changed with the times That there is no natural Right or Law But that all Men and other living Creatures are carried by the guiaance of Nature to things profitable for them Wherefore there is no Justice or if there be any it is extreme Folly because it hurteth it self taking care for the benefit of others But what the Philosopher saith here and the Poet followeth That Nature cannot make any difference 'twixt right and wrong must not be admitted For Man indeed is an Animal but excelling all the rest and differing farther from them than they do from one another Which is confirmed by many Actions proper to Mankind And among these things that are proper to Man is the Appetite of Society that is of Community not of any sort but Quiet and according to the measure of his understanding Orderly with those of his own kind which the Stoicks call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What is objected then that every living Creature is by nature carried onely to its own profit so universally taken ought not to be granted For even some of the meer Animals in some sort restrain the desire of their own profit with a respect partly of their Issue partly of others of their own kind Which in them truly we think proceeds from some external intelligent principle because in other actions not more difficult than the former they do not discover such intelligence in themselves And the same is to be said of Infants in whom before all Discipline there shews it self a certain propension to do good to others prudently observ'd by Plutarch as also in that Age Compassion breaketh forth of its own accord But in a Man of perfect Age knowing to do like things in the like manner with an exceeding appetite of Society having Speech the peculiar instrument thereof as his priviledge above all other Creatures we must conceive there is an Ability of Understanding and Working according to general precepts and the things agreeable thereto belong not now to all living Creatures but are peculiar to humane nature Now this custody of Society which we have thus rudely expressed convenient to humane Understanding is the fountain of that Law which is properly called by such a name to which pertains Abstinence from that which is Anothers and if we have any thing of that sort or have gained by it Restitution Obligation to fulfill promises Reparation of Damage unjustly done and the Merit of Punishment amongst Men. From this signification of Law is derived another more large for because Man above other Animals hath not onely that social virtue which we mention'd but also judgement to discern what things delight or hurt not present onely but future and what things can lead to either it is convenient to humane nature according to the measure of humane understanding in these things also to follow a rectified judgement and neither to be corrupted with fear or the allurement of present pleasure nor to be transported with any impetuous rashness And that which is plainly repugnant to such a judgement is also conceiv'd to be against the Law of Nature to wit humane What we have now said would have some place though we should grant which cannot be granted without the highest sin That there is no God or That he hath no Care of humane Affairs the contrary whereof being implanted in us partly by Reason partly by perpetual Tradition and confirmed by many Arguments and Miracles testified in all Ages it follows that we must without exception obey God as our Maker to whom we owe our selves and all we have especially seeing he hath many waies declared his infinite
Goodness and Power So that he is able to give unto those that obey him greatest Rewards and eternal being himself eternal and may be believed willing and much the more if he hath expresly promis'd it Which we Christians convinced by undoubted testimonies do believe This is now another fountain of Law beside that natural coming from the free will of God to which that we ought to be subject our own understanding doth irrefragably dictate to us Moreover that natural Law of which we have spoken whether it be the Social or that which is more largely so called though it proceedeth from principles internal to man yet it may deservedly be asscrib'd to God because it was his will that such principles should be in us in which sense Chrysippus and the Stoicks said The Original of Law came from no other Head but Jupiter Adde that God by Laws given hath made the said principles more conspicuous even to men of Weaker minds and those impetus and passions regarding our selves and others and drawing us several ways He hath forbid to wander regulating their vehemency and keeping them in compass And the sacred Historie besides that which consists in precepts doth not a little excite that social affection by shewing that all men are descended from the same first Parents so that in this sense may be rightly said what Florentinus said in another Nature hath made us all Kinsmen Whence it follows that 't is impiety for one man to be treacherous to another Among men Parents are as it were Gods to whom therefore not an infinite but a peculiar observance is due And further being it is a point of the Law of Nature to stand to Covenants for some way of binding themselves was necessary among men nor can any other natural way be imagined from this very fountain Civil Laws have flowed For they that had joyned themselves to any Assembly or subjected themselves to Man or Men had either expresly promis'd or by the nature of the business ought to be understood to have promis'd tacitly That they would follow what either the major part of the Assembly or Those to whom power was given had constituted Wherefore what Carneades and others say That Utility is even the Mother of Justice and Equity if we speak accurately is not true For the mother of Natural Law is humane nature it self which would carry us to a desire of mutual society though we wanted nothing but the mother of Civil Law is the very obligation by consent which having its vertue from the Natural Law Nature may be call'd the Grandmother of this Law also But to Natural Law Utility is added for the Author of Nature was pleased we should be weak singly and stand in need of many things usefull to our life that we might the more vigorously embrace Society To the Civil Law Utility gave occasion for that consociation or subjection aforesaid began to be ordained for some Utilities sake And they that prescribe Laws to others are wont or ought to respect some Utility therein But as the Laws of every Common wealth respect the interest and profit of the same so between Common-wealths either all or most some Laws may have arisen from Consent and it appears they have arisen which might respect the Interest not of several Societies but of the Whole And this is that which is call'd the Law of Nations as oft as that name is distinguisht from Natural Law Which kind of Law Carneades omitted distributing all Law into Natural Law and the Civil Law of single Nations when yet being to treat of that Law which is common to Nations one with another for he added a discourse of War and things got by War he ought by all means to have mentioned the same And it is another errour of Carneades to traduce Justice by the name of Folly For as by his own confession the Citizen is not a fool who follows the Civil Law in the Common-wealth though for his reverence unto it he must omit some things profitable to himself So neither is that people foolish that value not so much their own Interest as to neglect therefore the Common Law of Nations The reason is the same in both For as a Citizen who breaks the Civil Law for his present Commodity breaks that wherein his own and his posterities perpetual benefit is contain'd Even so a people violating the Laws of Nature and Nations destroy the muniments of their own Tranquillity for the future Again though no profit were expected out of the observation of Law yet were it a point of Wisdome not of Folly to be carried unto that to which we feel our selves directed and enclined by our nature Wherefore neither is that which one hath in Plato Laws were found out through fear of receiving injury and Men are forcibly drawn to advance justice universally true For that pertains onely to those Institutes and Laws which are invented for the more facile execution of Law as Many weak of themselves that they might not be opprest of the stronger conspir'd to institute and by united force to maintain Courts of Justice that all together might prevail against those they could not match single And in this sense may that Saying be well taken Law is that which pleaseth the Stronger conceiving Law to want its external end unless it have Force to back it as Solon did very great matters joyning Might and Right together as he said himself Yet doth not Law though destitute of Force want Effect altogether for Justice brings security to the Conscience Injustice torments and tearings such as Plato describes in the breasts of Tyrants Besides the consent of honest man approves of Justice condemns Injustice And which is the greatest of all this hath God for an Enemy that for a Friend who doth so reserve his judgements after this life that he often too represents the power of them even in this life as Histories do shew by many examples Now whereas Many require not that justice in a State or Governour which they exact of private Men the Cause of that errour is first in that they consider nothing in the Law but the Profit arising thence Which is evident in single Citizens unable to defend themselves but great Cities and States seeming to contain all things in themselves which are needfull for the well supporting of life seem not to have need of that virtue that looks abroad and is called Justice But not to repeat what was said that Law was not onely provided for profits sake there is no Common-wealth so strong that may not sometime stand in need of help from without either for commerce or also for repelling the Forces of many forein Nations united together against it Whence we see the most potent States and Kings have desired Leagues all virtue whereof is taken away by those that confine Law within the bounds of a City It is most true Take away Law
of speech I was not willing by adding a multitude of words to the multitude of matter to cloy my Reader whose Good I intended I have therefore followed as near as I could a concise and plain way of expression convenient to a Teacher that such as have a hand in publick Affairs may here behold as in one view both what Controversies are usually incident and what are the Principles whereby they may be judged which being known it will not be difficult to accommodate that which is said to the subject matter and to extend it as much as you will I have sometimes alleged the very words of antient Writers where they were such that they might seem spoken with authority or with a singular grace which I have done in the Greek too now and then but especially where either the sentence was short or whose Elegancy I could not hope to equal by my translation To conclude the Liberty I have taken to my self in judging the Sentences and Writing of other men let All I humbly intreat them into whose hands this Book shall come take the same to themselves upon me They shall not more readily admonish me of any errour than I will obey their admonition And at this instant if here be any thing spoken by me diffentaneous to piety or good manners or holy Scripture if any thing against the Consent of the Christian Church or against any Truth with all my heart I wish it never spoken I. Of the Lawfulness of War II. Of the Causes of War III. Of what is lawfull to be done in War THE CONTENTS I. PART I. WHat is War pag. 1. II. What is Law 2 III. Of Natural Law 2 IV. Of the Law of Nature and Nations 5 V. The proof of Natural Law 5 VI. Of Voluntary humane Law 6 VII Voluntary Divine Law 7 VIII That the Law given to the Hebrews obligeth not other Nations 8 IX What Arguments Christians may deduce from Moses Law and How 10 X. That War is not against the Law of Nature 12 XI Further proof out of the Sacred Historie 15 XII That War is not contrary to the Voluntary Divine Law before the time of the Gospel 17 XIII Of the Gospel-Law 22 XIV That War is not against the Gospel-Law The first Argument 25 XV. The second Argument 27 XVI The third Argument 29 XVII The fourth Argument 30 XVIII The fist Argument 31 XIX The sixt seventh and eighth Arguments 33 XX. The ninth tenth and eleventh Arguments 35 XXI Objections answered The first 37 XXII The second Objection answered 38 XXIII The third Objection answered 43 XXIV The fourth Objection answered 46 XXV The fift sixt and seventh Objections answered 48 XXVI Of the opinion of the Antient Fathers The first Observation 50 XXVII The second Observation 53 XXVIII The third Observation 54 XXIX A Confirmation of the Lawfulness of War out of the Antients 56 XXX Further proof out of Ecclesiastical Historie 58 XXXI The twelfth Canon of the Nicene Council objected and answered 60 XXXII Leo's Epistle objected and answer'd 63 XXXIII The last proofs out of Church-story 64 XXXIV That all private War is not unlawfull by Natural Law 66 XXXV Nor by the Law Evangelical Objections proposed 69 XXXVI The lawfulness of Private Defence confirmed 71 XXXVII The Objections answer'd 72 XXXVIII Publick War solemn or less solemn 76 XXXIX Of War waged by inferiour Magistrates 79 XL. Wherein consisteth Civil Power 83 XLI What Power is Highest 84 XLII That the Highest Power is nâ—… alwaies in the People 86 XLIII The same further proved 90 XLIV Arguments to the contrary answered 9â—… XLV Of mutual Subjection 9â—… XLVI Cautions for the understanding of the true opinion The first 9â—… XLVII The second Caution 10â—… XLVIII That some highest Empires are holden fully that is alienably 10â—… XLIX Some highest Empires are not holden fully 109 L. A further manifestation of the second Caution 110 LI. A third Observation 111 LII The fourth Observation 114 LIII A further explication of the last note about division of Power and mixture 116 LIV. True Examples of the Supreme Power divided 118 LV. Whether he can have Supreme Power that is comprehended in an unequal League 123 LVI An Objection answered 126 LVII Another Objection answered 129 LVIII That the Highest Power may consist with paying of Tribute 132 LIX That the Highest Power may be holden in Fee ibid. LX. The Right and Exercise of it distinguished 134 LXI Of the War of Subjects against their Superiours The question stated 135 LXII By the Law of Nature War upon Superiours as such is not ordinarily lawfull 136 LXIII Nor is it allowed by the Hebrew Law 138 LXIV Least of all by the Evangelical Law The first proof out of St. Paul 139 LXV The second proof out of St. Peter 143 LXVI Further proof from the Examples of the antient Christians 144 LXVII It is not lawfull for the Inferiour Magistrates to make Waâ—… upon the Highest 147 LXVIII In case of extreme and in evitable Necessity what may bâ—… done 149 LXIX The King's Person sacred 154 LXX of Christian Subjection 156 LXXI The famous example of the Thebaean Legion 158 LXXII In what cases Force is lawfull against a Prince 16â—… LXXIII How far we must obey aâ—… Invader of anothers Empire 16â—… LXXIV Whether it be lawfull to kill an Invader or expell him by force and in what cases 166 LXXV Who may lawfully wagâ—… War 170 II. PART I. WHat are called the Justifiek Causes of War 173 II. Three just Causes of Wars 176 III. War is lawfull in defence of life onely against an Assailant and in present certain danger 177 IV. Of the loss of a member and defence of Chastity 181 V. Defence may lawfully be omitted 182 VI. Defence is unlawfull sometimes against a Person very profitable to the Publick 183 VII It is not lawfull to kill another for to avoyd a box on the ear or the like disgrace 185 VIII In defence of Goods to kill a man is not unlawfull by the right of Nature 188 IX How far the same is permitted by the Law of Moses ibid. X. Whether and how far it is permitted by the Evangelical Law 192 XI Whether the Civil Law permitting one to kill another in his own defence give a right or onely impunity 193 XII When a single Combat may be lawfull 194 XIII Of Defence in Publick War 195 XIV It is not lawfull to take Arms to diminish a Neighbours power 196 XV. Defensive War also is unjus on his part who gave just cause oâ—… War ibid XVI The Rise and Progress of Propriety 198 XVII Some things cannot be madâ—… proper as the Sea taken for the whole or principal parts and why 204 XVIII Of things that may be made proper 205 XIX Over things made proper men have a right to use them iâ—… time of necessity and whence iâ—… comes 20â—… XX. Three Cautions to be applyed to this case of necessity 209 XXI An example of this right in Wars 210
XXII Another right of men over things proper without damage to the Owner 211 XXIII The right of Passages explained by Land and Water 212 XXIV Of passage for merchandise and of impost 215 XXV The right of staying for a time of inhabiting and having desert places 218 XXVI Of Oaths How great their virtue is even in the opinion of Pagans 220 XXVII In an oath is required a deliberate mind 222 XXVIII In what sense the words of an Oath bind 223 XXIX An Oath deceitfully procured when binding Of Josua's oath 226 XXX The words of an Oath not to be extended too far 228 XXXI An Oath binds not being made of unlawfull Matter 229 XXXII Or which hinders a greater moral Good 230 XXXIII Of Oaths about things impossible 231 XXXIV In Oaths God is named and in what sense ibid. XXXV In Oaths also other things are named with respect to God 232 XXXVI Of swearing by false Gods 234 XXXVII The Effect of an Oath 235 XXXVIII When an Oath gives 〈◊〉 right to God and Man when 〈◊〉 God alone ibid. XXXIX Of an Oath to a Pyrat oâ—… to a Tyrant 236 XL. Of an Oath to one that is perfidious 238 XLI Of the Heir's obligation ibid. XLII Two cases wherein the Obligation ceaseth 239 XLIII Of that which is done againâ—… ones Oath 240 XLIV What Superiours can do about the Oaths of their Subjects ibid. XLV What Oaths are properly meanâ—… in the charge of Christ against swearing 242 XLVI Of Faith given without an Oath 245 XLVII Of Leagues They are lawfull with Aliens from true Religion by the Law of Nature 246 XLVIII They are not universally forbidden by the Hebrew Law ibid. XLIX Nor are they forbidden by the Evangelical Law 252 L. Cautions about such Leagues 255 LI. All Christians are obliged to joyn in League against the Enemies of Christianism 256 LII If divers Confederates wage war which is to be aided 257 LIII Of the Dissolution of a League 258 LIV. Of Interpretation 259 LV. How words of art are to be interpreted 261 LVI Interpretation by Conjecture 262 LVII Some Distinctions and Rules for interpretation 263 LVIII Whether in the name of Confederates are contained those that shall be so 266 LIX One shall not wage war without leave of the other How understood And That Carthage shall be free 268 LX. Of Agreements Personal and real 269 LXI A League made with a King is extended to him being expelled not to the Invader 272 LXII To whom a promise made to the First is due when more have performed a thing together 273 LXIII How far States are accountable for damages done by their Subjects 274 LXIV Of the right of Embassages 276 LXV Among whom the right of Embassages hath place ibid. LXVI Whether an Embassage be alwaies to be admitted 278 LXVII Of not violating Embassadours 280 LXVIII The Law in favour of Embassadours binds not him to whom he is not sent 286 LXIX An Enemy to whom an Embassadour is sent is bound 288 LXX Embassadours may not be wronged by way of retaliation 289 LXXI The Companions also of Embassadours and their Goods are inviolable 290 LXXII The Right of Embassadours vindicated by War 293 LXXIII Of the right of Burial It springs from the same Law of Nations 293 LXXIV What was the first Cause of this Custom 296 LXXV Burial is also due to publick Enemies 301 LXXVI Whether burial be due to notorious Malefactors 302 LXXVII Whether it be due to those that have kill'd themselves to the sacrilegious and traiterous 304 LXVIII Of Punishments The definition of punishment and the Original 309 LXXIX Who should punish an evil-doer 311 LXXX Of the End of punishment 312 LXXXI In what sense Revenge is naturally unlawfull 314 LXXXII The Utility of Punishment is three fold 317 LXXXIII Of punishing a Delinquent for his own benefit 318 LXXXIV Of Punishment for his profit who is offended and of Revenge by the Law of Nations 320 LXXXVI The End of Punishment is also the profit of all 325 LXXXVII What the Evangelical Law hath constituted about this matter 328 LXXXVIII An Objection taken from Gods mercy in the Gospel answered 334 LXXXIX Another Objection answered about precision of Repentance 335 XC Three Inferences from the former Doctrine 337 XC Whether humane Laws that permit the killing of some men give the killers a true right before God or only impunity among men 339 XCII What acts are not punishable by men 340 XCIII That it is lawfull to pardon both before and after the penal Law 344 XCIV Causes of freeing one from punishment of Law 348 XCV Of war for punishment and whether war be just for Offences begun 350 XCVI War for violation of Natures Law 352 XCVII Three Cautions to be observed 356 XCVIII Whether war may be undertaken for Offences against God 358 XCIX Four most common principles of Religion 362 C. The first violators of these may be punished 365 CI. Wars are not justly made against them that will not embrace Christian Religion 370 CII Justly against them that deal cruelly with Christians onely for Religions sake 373 CIII Not against them who are mistaken in the sense of Scripture 375 CIV Justly are they punisht that are irreverent to the Gods they own 379 CV Of Communication of Punishment How it passeth to partakers of the fault 380 CVI. The Community or Rulers are engaged by their subjects fault if they know and do not forbid it when they ought 381 CVII Likewise if they receive them that have offended elswhere unless they punish them or yield them up 384 CVIII Whether the persons yielded up and not receiv'd remain Citizens 387 CIX That the rights of Suppliants belong to the miserable not to the guilty with the exceptions 388 CX How Subjects are partakers of the faults of their Rulers or parts of the whole and how their punishments differ 392 CXI How long the right of punishment lasts against a Community 394 CXII Whether the punishment may pass without communication of the fault Two distinctions here needfull 396 CXII None is justly punished in propriety of speech for anothers fault 400 CXV Of unjust Causes Causes of War some are justifiable others suasory 407 CXVI Wars without any cause are wild and brutish 409 CXVII Against wars which have not justifick causes or not truly such 409 CXVIII Fear of an uncertain danger no just cause of War 411 CXIX Of some other unjust causes 413 CXX Of the title of universal Emperour 415 CXXI Of the Empire of the Church 417 CXXII Of a desire to fulfill prophecies 420 CXXIII Of that which is due not by strict justice but otherwise 421 CXXIV A distinction of War unjust in respect of the cause or of some accident ibid. CXXV Of doubtfull cases Whence doubts do arise in moral matters 423 CXXVI Nothing is to be done against ones own judgement though crring 424 CXXVII How the judgement is drawn either way 425 CXXVIII In doubtful cases the safer way is to be taken Three waies to
Rule of Moral Actions obliging to that which is Right We say Obliging For Counsells and other Precepts though right yet not obliging are not called Laws and Permission properly is not the Action of Law but the Negation of that Action unless as it obligeth some other not to hinder him that is permitted We said obliging to that which is Right not simply to that which is just because it pertains not to Justice only but to other vertues The best division of Law is out of Aristotle into Natural and Voluntary III. Of Naturall Law NAtural Law is the Dictate of right Reason shewing moral turpitude or moral necessity to be in some act by its convenience or disconvenience with the Rational Nature and consequently that it is forbidden or commanded by the Author of Nature God The Acts concerning which is â—…ant â—…uch a dictate are due or unlawfull of themselves and therefore are conceived necessarily to be commanded of God or forbidden By which note this Law differs not from humane only but from the Divine vo untary which doth not command or forbid what is by it self and in its own nature due or unlawfull but by forbidding makes the thing unlawfull and by commanding makes it due For the better understanding of Natural Law we must observe some things belong unto it not properly but reduct vely viz. the things whereto the Law Natural is not repugnant So are things called just which are without in justice Sometimes also by abuse of the word the things which Reason alloweth for honest and better than the opposite although they be not due and necessary are said to be of the Law Natural Observe farther this Law is not only conversant about things not subject to human pleasure but about many things also which are consequent to the Acts of Mans Will So the Will of Man introduc'd Dominion such as is now in use But that being introduc'd the law of Nature tells me 't is wickednes for me to take away without thy consent that which is under thy dominion Moreover the Law of Nature is immutable yet somtimes it comes to pass that in the Acts determined by that Law a seeming mutation deceivs the unwary when in truth the Law of Nature is the same but the matter about which it is is changed For example If my Creditor accounts the debt I owe him as received I am not bound to pay The reason is not because the Law of Nature is become more induâ—…gent requires me not to pay what I owe But because by the indulgence of my Creditor the debt is forgiven me So if God command a person to be slain or his Goods to be taken away it will not follow that Man-slaughter or Theft is lawfull which words include a Vice but the act is not Manslaughter or Theft which is done at his command who is supreme Lord of our Lives and Goods Lastly there are some things that do not simply but in such a state of affaiâ—…s belong to Natural Law as the common use of things was natural before Dominion was introduced and before positive Laws every man had right to get his own by force IV. Of the Law of Nature and Nations AS for that distinction extant in the Roman Law-Books between the immutable Law common to other Creatures with men cal'd the Law of Nature And that which is proper to men alone usually called by them the Law of Nations it is of very little or no use For no nature that hath not the use of general precepts is properly capable of a Law If at any time Justice is attributed to the brute creatures it is improperly for that there is in them some shadow and print of reason Whether the act it self determined by the Law of Nature be common to us with other creatures as the breeding up of our Issue or proper to us as the worship of God it is not in this respect material V. The proof of Natural Law A Thing is proved to be of Natural Law two ways à priori or à posteriori That way of proof is more subtil this more popular The proof is à priori if we shew the necessary convenience or disconvenience of any thing to the rational and social nature à posteriori if though not with full certainty yet very probably we conclude that to be a point of Natural Law which is receiv'd for such amongst all or at least the most civil Nations For an universal effect hath an universal cause and of so generall an opinion there can hardly be any other cause but sense it self which is called common But I said with good reason the more civiil Nations for as the Philosopher hath it What is natural we must judge by those in whom nature is least corrupt and not by the depraved VI. Of Voluntary Humane Law THe other kind of Law is Voluntary which draws its original from the will And this is either Divine or Humane Law We begin with Humane because more known And this is either Civil or of larger extent or of less extent than Civil The Civil Law is that which proceeds from the Civil power The Civil Power is that which rules the Common-wealth And a Common-wealth is a society of Freemen united for their common benefit The Law of less extent and that comes not from the Civil power though subject to it is various conteining the precepts of Fathers Masters and such like That of larger extent is the Law of Nations i. e. which by the will of all or of many nations hath received force to oblige I adde of many because there is scarce found any Law besides the Natural which is also called the Law of Nations common unto all Yâ—…a oft-times in one part of the world there is not the same Law of Nations as in another as we shall shew hereafter This Law of Nations is proved in the same manner with the unwritten Civill Law by continual use and the testimony of skilfull men And to this purpose Historians are of singular profit VII Voluntary Divine Law VOluntary Law Divine as the words at first sound inform us is that which hath its rise from the will of God whereby it is distinguished from Natural Law that may be also as we have said entituled Divine Here hath place that indistinct saying God wills it not because 't is just but 't is just i. e. due in Law because God wills it This Law was given either to mankind or to one people thrice to mankind presently after the creation again in the restauration after the floud lastly in that more sublime restauration by Christ. All these Laws doubtless oblige all men after they have sufficient notice of them VIII That the Law given to the Hebrews obliged not other Nations THe Hebrews were the only people in all the world to whom God peculiarly gave his Laws as Moses and the Psalmist tell them And certainly
had not been introduced for life members liberty would yet be proper to every one and therefore could not without injury be invaded by any other And to make use of what is common and spend as much as may suffice nature would be the right of the occupant Which right none could without injury take away This is more plain since by Law and use Dominion is established which I will express 〈◊〉 Tullies words If every member shoulâ—… think to gather more strength by drawing to it self the strength of the member next it the whole body must needs 〈◊〉 weakned and destroyed So if every one of us snatch unto himself the commodities of other men and draw away from every one what he can to advantage himself humane society cannot stand Nature gives leave to every man in the acquisition of things usefull to supply himself before another but by the spoili of another to encrease his own store that nature doth not permit It is not then against society to provide for one self so that anothers right be not diminished nor is that violence unjust which doth not violate the right of another as the same Author saith Of the two kinds of contention by debate and by force the one agreeing to men the other more becoming beasts we must fly unto the later when the former will not serve And elsewhere What is there that can be done against force but by force Ulpian saith Cassius writes that it is by nature lawfull to repell force by force and arms by arms XI Further proof out of the sacred History that all War is not against the Law of Nature THis is further proved out of the sacred History For when Abraham having armed his servants and friends pursued the four Kings that had spoiled Sodom and returned with victory God by his Priest Melchizedeck approv'd his action Blessed be the most high God said Melchisedeck who hath deliver'd thine enemies into thine hand Abraham as appears by the story had taken Arms without any special commission from God therefore the Law of Nature was his warrant whose wisdom was no less eminent than his sanctity even by the report of aliens namely of Berosus and Orpheus The History of the seven Nations whom God gave up to be destroyed by the hand of Israel I shall not use because there was a special mandate to execute Gods judgement upon people guilty of the greatest crimes Whence in the Scripture these VVars are properly called the VVars of God undertaken by his command not by humane Counâ—…el It is more pertinent that the Hebrews under the conduct of Moses and Joshua when they were opposed by the Amalekites repulsed them by Armies The Action was not set upon by Gods command yet was it approved by him after it was done Moreover God hath prescribed to his people general and perpetual Laws of waging VVar thereby shewing VVar may be just even without his special mandate For he doth plainly distinguish the cause of the seven Nations from the cause of other people and prescribing nothing about the just causes of entring into VVar thereby shews them to be manifest enough by the light of nature as tâ—…e cause of defending the frontiers in the VVar of Jephtha against the Ammonites and the cause of Embassadors violated in the VVar of David against the same It is also to be noted which the divine writer to the Hebrews saith that Gedeon Baruc Sampson Jephtha David Samuel and others by Faith overthrew Kingdoms prevailed in VVar put to flight the Armies of Aliens Where in the name of Faith as we learn by the series of that discourse is included a persuasion whereby is believed that the thing done is pleasing unto God So also the wise woman saith of David that he fought the battails of God that is pious and just XII That War is not contrary to the voluntary Divine Law before the time of the Gospell THe greatest difficulty lies in this point concerning the positive Divine Law Nor may any object the Law of Nature is immutable and therefore nothing could be constituted by God to the contrary for this is true in things commanded or forbidden by the Law of Nature not in things permitted only which things being not properly of the Law of Nature but without it may be either forbidden or commanded First then against VVar is brought by some that Law given to Noah and his posterity And surely saith God Your blood of your lives will I require at the hand of every beast will I require it and at the hand of man at the hand of every mans Brother will I require the life of man Who so sheddeth mans bloud by man shall his blood be shed for in the image of God made he man Here do some most generally understand that which is said of requiring blood and what is said of shedding blood for blood they will have to be a commination not an approbation I can allow of neither for the prohibition not to shed blood is not of larger extent than that in the Law Thou shalt not kill and this 't is manifest hath neither taken away capitall punishments nor VVars VVherefore both this Law and that doth not so much constitute any new thing as declare and repeat the old naturall Law obliterated and depraved by evill custom And the words are to be understood in a sense which includes a crime as in the worâ—… homicide we understand not every killing of a man but that which is on purpose and of an innocent person The which follows of shedding blood for blood seems to me not to contain a naked act but a Right I explain it thus By nature it is not unjust that every one suffer as much evill as he hath done 〈◊〉 of a sense of this naturall equity 〈◊〉 accus'd of paricide by his own conscience said Whosoever findeth me she flay me But God in those first times either by reason of the paucity of men or because there being yet but few offenders exemplary punishments were 〈◊〉 necessary repressed by his edict thâ—… which seemed naturally lawfull and appointed the manslayers company to be avoided not his life taken away The like was decreed by Plato in his Laws and of old practized in Greece Pertinent is that of Thucydides Antiently great crimes had little punishments but in progress of time those being contemned death was inflicted From one notable act a conjecture being made of the divine pleasure went into a Law so that Lamech also upon the like crime committed promised to himself impunity from that example Nevertheless when before the floud in the Gyants age a promiscuous licence of shedding blood had prevailed mankind being again restored after the floud God to restrain that licence thought it meet to use more severity and laying aside the lenity of the former times permitted now what nature did before dictate not to be
them to execute publick revenge And I am of Plutarch's opinion that the same is lawfull if before the invasion a publick Law were extant giving power to every one to kill him that shall adventure to do this or that which falls under sight as that being a private man shall get a guard about him or shall invade the Fort that shall slay a Citizen uncondemned or not by lawfull judgment that shall create magistrats without just suffrages Many such Laws were extant in the Cities of Greece in which therefore the killing of such Tyrants was to be esteemed Lawfull Such was at Athens the Law of Solon revived after the return out of the Piraeeum against the overthrowers of the popular State and such as had born offices after the overthrow of it As also at Rome the Valerian Law if any one without the peoples will should take the authority of a Magistrate and the Consular Law after the Decemvirate that none should create a Magistrate without appeal whosoever had done so it should be lawfull to kill him Moreover it will be lawfull to kill the Invader by the express authority of the rightfull Governour whether King Senate or People As also of the Protectors of Children that are Kings such as Joâ—…ada was to Joas when he dethroned Athalia Unless in these cases I cannot yield it lawfull for a private person by force to evpell or kill an Invader of the highest power The reason is because it may be the rightfull Governour had rather the Invader should be left in possession than occasion given to dangerous and bloody Commotions that do usually follow upon the violating or slaying of those men who have a strong faction among the people or forein confederates also Surely it is uncertain whether a King or people be willing the State should be so endangered and without knowâ—…ege of their wâ—…l the force cannot be just Favonius said Civil war is worse than unlan full and usurped Goverment And Cicero To me any peace with our Countrey-men seemeth more profitable than Civil war Better it had been said Titus Quintius the Tyrant Nabis had been let alone at Lacedemon when he could not otherwise be thrown down but with the grievous ruine of the Commonwealth likely to perish in the vindication of her liberty To the same purpose is that of Aristâ—…hanes A Lyon is not to be bred in a City but if he be brought up he must be kept Verily seeing it is a most weighty deliberation whether peace or liberty be to be preferd as Tacitus speaks and in Cicero's opinion it is a politick question of greatest difficulty Whether when our Country is oppressed by an Usurper all endeavour is to be used against him although the Common-wealth be thereby extremely endangered Single persons ought not to arrogate unto themselves that judgment which belongs to the people in common Nor can that saying be approv'd Wee pull the proud Usurpers down That Lord it o'r the willing Town So did Sylla answer being asked why he troubled his Country with taking arms That I may free it from tyrants Better is the advice of Plato in an Epistle of his to Perdicca In the Common-wealth contend so far as thou canst approve thy doings to thy Citizens it is not fit to offer violence neither to thy parent nor to thy country The sense whereof is extant in Salust too For to over-rule thy country or thy parents although thou art able and canst reform what is amiss yet is it uncivill especially seeing all changes in affairs of state portend slaughter flight and other hostilities Thomas saith The destruction though of a tyrannical Government is sometimes seditious The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side for the sacred Scripture plainly witnesseth He was raised by God himself and sent as an Avenger to wit by special command And besides it is not manifest that this King of Moab had not some right of Government conditionall Against other Kings also God executed his judgments by what hand he pleased as by Jehu upon Joram Lastly it is to be noted in a controverted case a private man by no means ought to take upon himself to judge but follow the possession So did Christ command tribute to be paid to Caesar because the Money bare his Image that is because he was in possession of the Empire LXXV Who may lawfully wage war AS in other things so in voluntary actions there are wont to be three kinds of efficient causes principal adjuvant and instrumental In war the principal is he whose work is done in private a private person in publick the publick power especially the highest Whether for those that stirr not themselves war may be raised by another we shall see elsewhere Mean while this we take for certain naturally every one may vindicate his own right Therefore were our hands given us But to profit another in what we can is not only lawfull but commendable The writers of Offices truly say Nothing is more serviceable to man than another man Now there are divers bonds between men which engage them to mutual aide For kinsmen assemble to bring help and neighbors are calld upon and fellow-citizens Aristotle said It behoveth every one either to take arms for himself if he hath received injury or for his kindred or for his benefactors or to help his fellows if they be wronged And Solon taught that the Commonwealths would be happy wherein every one would think anothers injuries to be his But suppose other obligations be wanting the communion of humane nature is sufficient No man is unconcerned in that which is humane It is a saying of Democritus Our duty is to defend the opprest with injury and not neglect them for that is just and good Which is thus explained by Lactantius God who hath not given wisedom to other living creatures hath secured them by natural muniments from assault and peril But to man because he formed him naked and frail that he might rather furnish him with wisedom he hath given beside other things this pious affection whereby one is inclined to defend love cherish another and afford mutual aid against all dangers When we speak of Instruments we do not here understand arms and such like things but those persons who act so by their own will that their will depends upon another will Such an instrument is the son to the father being naturally a part of him such also is a servant as it were a part legally Democritus Use servants as parts of the body some for one thing some for another Now as a servant is in the family so is a subject in the Commonwealth and therefore an instrument of the Ruler And no doubt all subjects naturally may be used for war but some are exempted by special Law as of
be dearer also on whom the publick affairs depend Ambrose Every one thinks it better to keep off destruction from his Country than danger from himself The foresaid Senecaâ—… Calistratus and Rutilius the one at Athens the other at Rome would not be restored to their home at peril of the Commonwealth because it was better these two should endure one private loss than all fuffer a common evill VII It is not lawfull to kill another for to avoid a box on the car or the like disgrace IF one be in danger to receive a blow on the cheek or the like some are of opinion he also hath a right to defend it by the slaughter of his enemy I dissent not if we respect onely expletory justice For although death and a blow are unequall yet he which prepares to do me an injury thereby gives me a right i. e. a certain morall faculty against himself in infinitum in so much as otherwise I cannot keep off that evill from me Charity also by it self seems not to bind us here in favour of the offender But the Evangelicall Law hath clearly made such a deed unlawfull For Christ commands a blow to be received rather than any hurt be done the adversary how much more forbids he him to be slain for to avoid a blow By which example we are admonished to beware of that saying of Covarruvias Humane understanding not ignorant of naturall right allows not any thing to be permitted by naturall reason which very thing is not also permitted by God who is Nature it self For God who is the Author of Nature so that he can also work freely above nature hath a right of prescribing us Laws even of those things which by their own nature are free and indefinite and much more that a thing may be due which is by nature honest though not due But it is strange seeing the will of God appears so manifestly in the Gospel that there are found Divines and those Christian Divines who do not only think slaughter to be rightly admitted that a blow may be avoided but also after a blow received if he that gave it fly for a reparation of honour as they say Which to me seemeth very contrary to Reason and Religion For Honour is an opinion of excellency But he that beareth such an injury shewes himself excellently patient and therefore hath encrease of honour rather than diminution Nor is it materiall if some men of a corrupt judgment traduce this vertue with names made for disgrace for those perverse judgments neither change the thing nor the estimation of it Neither did the antient Christians onely see this but the Philosophers too who said It is a token of a weak spirit not to be able to bear contumely as we have shewed elsewhere Hence also it is apparent how unsound that is which very many Authors say That Defense with slaughter is lawfull to wit by divine Law for I contend not about the right of nature although one may fly without perill because flight forsooth is dishonourable especially for a Gentleman But here is indeed no dishonour onely a certain false opinion of dishonour to be despised by all the Followers of vertue and wisedome Wherein I rejoice that I have among the Lawyers Carolus Molinaeus of the same mind with me What I have said of a blow and of flight I desire should be understood of other things by which true honour and existimation is not lessened And what if one should report that of us which being believed among good men would touch our Name He also may be kili'd say some very falsly and against the Law even of nature too For that is no fit way to defend our Reputation VIII In defense of Goods to kill a man is not unlawfull by the Right of nature COme we now to the injuries whereby our goods are invaded If we respect expletory of Justice I will not deny but for the conservation of our goods the Invader if need be may be slain For the inequality between these things and life is made up by favour to the innocent and by hatred to the injurious Whence it follows if we regard onely that right that a Thief running away with stoln goods if they cannot otherwise be recover'd may be overtaken with a Gun or other weapon Demostheâ—…es said It is very hard and unjust and contrary both to the written Laws and the common rules amongst men not to be sufferd to use force against him who in hostile manner hath taken away my Goods Nor doth Charity hinder by way of precept the Law divine and humane set aside unless the thing be of very small value and therefore contemptible which exception some do rightly adde IX How far the same is permitted by the Law of Moses LEt us see what is the meaning of the Hebrew Law where with agrees also that old Law of Solon which Demosthenes mentioneth and the Law of the XII Tables taken thence and Plato's decree in the ninth of his Laws For all those Laws meet in this that they distinguish a Theif by night from a Theif by day About the reason of the Law there is the question Some think this is it that by night he cannot be discerned who comes whether he be a Thief or a Murderer and therefore may be killed as a Murderer Others conceive the difference lyes here that in the night because the Theif is unknown there is less possibility to recover the Goods To me the Law-giver seems to have properly respected neither this nor that but to have meant thus rather that no man for Goods ought directly to be slain which would be done if for ex-example I should with a weapon knock him down as he runs away that after he is slain I might recover my Goods but if my self be brought into danger of life then it is lawful for me to avert the danger even with the peril of another mans life Nor is it against me that I brought my self into that hazard whilst I desire to keep or to recover my Goods or to take the Theif for herein no blame can be laid on me who am about a lawful act and do no injury to any one but use my own right The difference then 'twixt a Theif by day and by night lyes here that by night there is scarce at possibility of calling witnesses and theâ—…fore if the Theif be found slain more easy credit is given to him who saith hee was necessitated in defense of his own life to kill the Theif being armed with some weapon wherewith he might do hurt For that is required in the Hebrew Law speaking of a Theif found breaking up as some translate others perhaps better with an instrument to break up as the word is rendred elswhere by the most learned of the Hebrews To this interpretation we are led by the Law of the XII Tables
that Good may come of it or of such as are not evil universally and in their own nature but may haply and in some cases be good VI. Guile in the negative act is not unlawfull IT is therefore to be noted that Guile either consists in a negative act or in a positive I extend the word to those things that consist in a negative act upon the authority of Labeo who refers it to Guile but not evil when one doth defend his own or another man 's by dissimulation Doubtless it was too crudely spoken by Cicero Our whole Conversation ought to be free from simulation and dissimulation altogether For when as you are not bound to discover unto others all things that you know or intend it follows that â—…o dissemble certain things before certain persons that is to hide and conceal them is very lawful It is lawful saith S. Austin to cast the veil of dissimulation sometimes over the face of Truth And Cicero himself in more places than one confesseth it to be necessary and inevitable especially to men of place in the Commonwealth A notable example to this purpose we have in the history á Jeremy ch 38. For that Prophet being questiond by the King about the event of the Siedge upon the Kings request prudently conceals the same before the Princes alleging another cause of thee Conference and that a true one too Hither also may be referrd that Abraham calls Sara his Sister that is according to the manner of speech used then his 〈◊〉 kinswoman not revealing his marriage VII Guile in the Positive act when lawfull GUile which consists in a positive act if in things is called Simulation if in words a ly Some do thus distinguish between these two saying Woâ—… are naturally signes of the mind things not so But on the contrary 't is true thaâ—… Words by nature it self and without thâ—… will of men do signify nothing unleâ—… perhaps it be a confused voice and inaâ—…culate as in grief which yet comes â—…ther under the appellation of a thing thâ—… of a word or speech Now if this be 〈◊〉 that this is the peculiar nature of man above other creatures that he can express unto others the conceptions of his mind and that words were found out to that end they do indeed say what 's true but 't is to be added that such an expression is not made by words alone but also by nods and signes as to mutes whether those nods have by nature some what common with the thing signifyed or els do signify only by institution To which are like those Notes which do signify not words figured by the tongue as Paul the Lawyer speaks but things themselves either by some convenience and agreement with them as hieroglyphicks or by meer will as among the people of China Wherefore another distinction must be here given such as is used to take away the ambiguity in the Word Law of Nations For this law is either that which hath pleased every nation without mutual tye or that which doth mutually oblige Thus Words and nods and notes which we have said were found out to signify with mutual obligation other things not so Hence it comes to pass that it is lawful to use other things though we foresee that Another may thereupon conceive a false opinion I speak of that which is intrinsecal not of that which is accidental Therefore an Example is to be puâ—… where no nocument follows thence or where the nocument it self the consideration of the guile set aside is lawful An example of the former is in Christ who to his companions going to Emmaâ—… made as though he would have gone farther unless we had rather understand he had really an intent to go farther Except they constrained him to stay as God aâ—… is said to will many things which are not done and elswhere Christ himself is said to have been willing to pass by the Apostles rowing to wit except he were eâ—…nestly entreated to come up into the 〈◊〉 Another example may be given in Paul who circumcised Timothy when he 〈◊〉 knew the Jews would take it so as if the precept of Circumcision which was indeed abolished did still oblige the Isrealites and as if Paul and Timothy were 〈◊〉 that opinion when yet Paul meant not this but only to procure unto himself and Timothy a more familiar way of Conversation with the Jews Nor did Circumcision any more the Law Divine takes away purposely signify such necessity nor was the consequent Evill of the present errour after to be corrected of 〈◊〉 great value as that good which Paul haâ—… his eye upon namely the insinuation of Evangelical Truth This simulation thâ—… Greek Fathers often call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is extant an excellent sentencâ—… of Clemens Alexandrinus speaking of a good man thus For the good of his Neighbour he will do some things which otherwise of his own accord and by a primary intention he would not do Of this sort is that in the war of the Romans who threw loaves from the Capitol into the guards of the enemies to possess them with a belief that they were not streitned with hunger An example of the later is in a feigned flight such as Joshua gave in command to his men that they might conquer Ai and other Captains often For here the nocument that follows we prove to be lawfull from the justice of war and the flight it self by appointment signifies nothing although the enemy take it as a sign of fear which mistake the other is not bound to acquit him of using his liberty to go hither or thither and with more or less speed and in this or that posture or habit Hither also is to be referred their act who are frequently read to have used the arms ensigns apparel sails of their enemies For all these things are of that kind that they may be used of any at his pleasure even contrary to custom because the custom it self is introduced at pleasure of every one not as by common consent and such a custome obligeth no man VIII Whether Guile by acts signifying by agreement be lawful The difficulty of the question IT is a harder question concerning those notes which as I may say are coversunt in the commerce of men of which sort properly is a ly For there are many places in Scripture against lying A righteous i. e. a good man hateth lying Remove far from me vanitie and lies Thou shalt destroy them that speak lyes Ly not one to another And this part is rigidly maintaind by Augustin and there are among the Philosophers and Poets that have the same opinion That of Homer is famous Whose mind thinks one thing and his Tongue doth tell Another I hate like the pit of Hell Aristotle said A ly is of it self soul and vituperable