read 1 Sam. 9.16 and 1 Sam. 10 1. still it is super eos not under my people but over them not under them to serve them but over them to save defend and deliver them Thus David and Solomon are said to be anointed over the people over the Lords anointed and over Israel And David gives thanks 2 Sam. 5.2 1 Kings 4.1 Psal 144.2 that God had subdued his people under him Christ also declares as much where he saith The Kings of the Gentiles exercise dominion over you Luke 22.25 The Power of Kings o're Subjects is their own Horace But none can Kings command but God alone The three Forms of Government are by Seneca thus described Ep. 14. Sometimes the people are most to be feared sometimes if the Government be such those most in favour with the Senate and sometimes those particular persons upon whom the whole power of the people and over the people is devolved For such saith Plutarch have power to govern not only according to the Laws but even the Laws themselves for the publick good Flam. Thus Otanes in Herodotus describes a King That he may do even what he will without being accountable to any So doth Dion Prusaeensis That he may so rule as not to render an account to any Pausanias to the Messenians opposeth Kingly Government to that which is lyable to give an account of his Acts to others Aristotle affirms That there are some Kings who are invested with as much power as elsewhere a whole Nation hath over it self or whatsoever it hath So as soon as the Roman Generals began to assume unto themselves Regal power Uno minor Jove That Kings Inferiour to God alone is no less Christian than Ethnick Philosophy For in this and in nothing more are Kings like unto God that they depend upon none He whom God hath placed in his Throne is accountable to none but unto him who placed him there He is Solutus Legibus above the lash of humane Laws He judgeth all but is judged of none When Herod was accused to M. Anthony for the Murder of Aristobulus Anthony makes this Apology for him It was neither Just nor Equitable to require an account from Kings for what they do as Kings For if that were permitted they could be no longer Kings Kingly Power then must needs be the highest because there lyes no Appeal from him or against him but unto God And as it is subject to no other power so it is bounded by no humane Law as other powers are 'T is granted that Moses indeed seems to prescribe Laws unto Kings and tells them what they should do And good Princes will say with the Emperour Theodosius Tantum mihi licet quantum per Leges licet That only is lawful for me to do which the Laws account so But as Moses teacheth us what a King should do so Samuel tells us what a King may do Moses tells us his duty Samuel his power The Law consists of two distinct parts the one Direct the other Coercive the former points at the rationability of the Law the latter at the danger we run into if we break the Law Now Laws serve to direct Kings because they mind them of their duty But they have no power to force them to that duty much less to un-Un-King them if they do it not the people are said to confer upon them all their power and authority over themselves as Theophilus expounds it Hence is that excellent saying of M. Antoninus None but God himself is the Judge of Kings Dion Prusaensis speaking of such a King saith He is free and absolute in power both over himself and over the Laws what he will he doth and what he will not he doth not Such anciently in Greece was the Kingdom of the Inachidae at Argis whom Moses terms the Anakims Deut. 2.10 For the Argives in Aeschylus thus bespeak their King Our State and City is in thee The Lacedaemonians in the Story of the Macchabites claim to be of Kin to Abraham they had two Kings but Magis Nomine quam Imperio More in Name than Power as Cora Nepos testifies Thou need'st not fear Laws Tyranny Sacred as Altar is thy Throne For all are Rul'd by thee alone Much different from what Theseus himself though a King speaks in Euripides concerning the Common-wealth of Athens Athens being Free Enslav'd by any one disdains to be The People there are Kings who Annually The Government to this or that decree For Theseus as Plutarch informs us was not their King but their General in War and the Guardian of their Laws in peace in other matters he was but equal with the rest of the Citizens Hence it comes That those Kings that are accountable to the people Lib. 3. Vit. Cleom. Vit. Ages as those after Lycurgus but especially as the Ephori were to the Lacedaemonians are by Polybius Plutarch and others said to be Kings in Name only but not in Power which example of the Lacedaemonians notwithstanding most of the Graecian Cities followed Pausanius to the Corinthians thus testifies of the Argives Corinthiacis Kings in name only not in power That they were so far addicted to parity and liberty that at length they reduced the power of their Kings to almost nothing for to the Sons and Posterity of Cisus they left not any thing but the bare Name and Title of a Kingdom And therefore Aristotle denyes that such Kingdoms do constitute any special Form of Government allowing them but as parts either of Optimacy or Democracy Nay even among such people as were not perpetually governed by Kings Some have for awhile the power but not the name we may find some footsteps of a Temporary Monarchy not at all subject unto the People M. Livius Solinator in his Censorship disfranchised all the Tribes but one in Rome for their Ingratitude thereby shewing his power over the whole body of the people And such was the power of the Dictators in Rome from whom there was no Appeal no not unto the People whence it came to pass that as Livy informs us An Edict from the Dictator was as Authoritative as an Oracle from God Dictators in Rome temporary Kings 1. Arg. answered The Thing that constitutes not always greater than the thing constituted Neither was there any safety at all but in obedience For though Kings were banished yet was the Regal Power comprehended in the Dictatorship The Arguments produced for the contrary opinion are easily answered For in the first place Whereas they say the Thing that constitutes is greater than the Thing constituted and therefore the people that make the King must needs be greater than the King they have made I answer That it is true where the Authority of the thing constituted doth always depend on the will of the Constitutors but not where the Authority once freely given doth ever after fully remain in the person that received it As for example A
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 plâasure 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 qâae i. 1. Diog. Laâât 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 Sâas 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
their Kings inviolable whilest they lived and also deterred them from breaking their oaths and promises by the fear of a dishonourable Interrment being dead The Kings of Epirus were wont to make oath That they would rule according to the Laws And their Subjects likewise bound themselves by Oaths to defend both him and the Kingdom according to the same Laws as Plutarch informs us in the life of Pyrrhus Nay further suppose a King should accept of his Kingdom upon these terms That in case he should falsifie his promise he should lose his Kingdom yet were his power supreme only the manner of holding it would be so much impaired by such a condition as would make that Government not much better than that which is Temporary It was said by Agatharchides concerning a King of the Sabaeans That he was not liable to give any account of his Actions as King and yet if ever he were seen out of his own Palace he might be stoned to death justly Which Strabo also notes out of Artemidorus So that Land which is held upon condition of some Trust to be performed is held as sully during the performance of that Trust as that which is held absolutely But yet it is possible that it may be lost and such a conditional Law may be added not only in conferring of a Kingdom but in any other Contract For some Leagues with our Neighbour Princes we see entred into under such penalties As in case a King being at his admission sworn shall break his Articles of Agreement his Subjects shall not help him no nor obey him So Crommerus testifies in his Treatise concerning the affairs of Poland Ch. 19 21. XVII It may sometimes be divided The Fourth thing is this That though the Soveraign Power be but one and of it self indivisible consisting of those parts above mentioned adding thereunto Supremacy that is the being accountable to none Yet it may so fall out that sometime it may be divided either by Parts which they call Potential or by Parts which they term Subjective As though the Roman Empire were but one entire thing yet it so sell out sometimes that one held the Eastern and another the Western part of it or that three sometimes divided the whole between them So also it may fall out that the People electing a King may reserve some Acts to themselves and transfer others to their King to be held in full Right Which notwithstanding is not done as I shewed before whensoever the King shall oblige himself by some promise But then only when either the Partition is expressly made as in the time of the Emperour Probus when it was agreed That the Senate should confirm the Princes Laws Vid. Gail lib. 2. Obs 157. and that they might take cognizance of Appeals appoint Proconsuls and give Legates unto the Consuls Or when the people being as yet free shall require it from him whom they chuse to be their King by way of a permanent Law or Precept Or if some such thing be added whereby it may plainly be understood that their King may be compelled or punished if he refuse To command argues a superiour but not to compel For a Precept or Command is commonly from a Superiour at least in that which is commanded but to compel doth not always argue a superiour For naturally every man hath power to compel his Debtor to do him justice but it is repugnant to the nature of an Inferiour And therefore from Compulsion there must naturally follow at least a parity and consequently a division of the Soveraign Power Many Allegations are usually brought against this bipartite state But as we have already said In civilibus nihil est quod omni ex parte incommodis caret Jus non quod optimum est huic aut illi videtur sed ex voluntate ejus unde jus oritur metiendum est In Civil matters it is not possible to provide against all Inconvenience no one Law can exactly fit every mans case no more than any one Shooe can fit every mans Foot neither is any thing accounted Right by seeming so to this or that person but by the will of him who was the Law-maker An excellent example of this is brought by Plato in the third Book of his Laws For when the Heraclidae had built Argus Lacedaemon and Messena they obliged their Kings to govern them according to Laws prescribed them which whilest they did the people also were obliged to continue their Kingdoms unto them and to their posterity and not to suffer any man to take them from them And for the better assurance of this Agreement not only the Kings bound themselves by Oath to their Subjects and the Subjects to their King but the Kings bound themselves each to other and the people of their respective Kings one to another and the Kings gave their faith to their neighbouring people and those people to their neighbouring Kings each King and people promising their mutual aid and assistance in defence of the Government established amongst them Many examples of this kind may be collected out of the Histories of our Northern Nations as in Johannes Magnus his History of Sweden and in Crantzius of the Swedes and Pontanus of the Danes XVIII Which is ill collected from this That some Princes will have their Acts confirmed by the Senate True it is that some Kings will not permit that some Acts of theirs shall be of force until they are confirmed by the Senate or some other Commissioners Yet he that shall hence inferr That there is a Partition of power will be mistaken For whatsoever Acts are thus rescinded ought to be understood as though they were made void by the King himself who by this means provides that nothing fraudulently gained from him shall pass to his disadvantage This was the scope of that Rescript sent by Antiochus the Third to his Magistrates That in case he commanded them to do any thing contrary to Law they should not obey him And of that of Constantine to his That Widows and Orphans should not be compelled to come for Judgement to the Court of the Emperour although the Emperours own Letters should be produced for it This is very like unto those Testaments unto which this clause is added That no Testament hereafter to be made shall be of force For such a Clause would have it believed that the latter Testament proceeded not from the will of the Testator But as that clause in the Will so the first Act of a Prince may by any after-Act of his or by any special Indication of his later Will be easily rescinded XIX Some other examples hither ill drawn Neither am I at all swayed by the authority of Polybius who would fain have the Romans to be a mixt Common-wealth which if we regard not so much the Acts themselves as the Power whereby they were done was doubtless at that time meerly popular For as well the Authority of the Senate which
he refers to Optimacy as that of the Consuls which he refers to Monarchy were both of them subject to the power of the people Now the self same may be said in answer to all other the Opinions of those that write of Politicks who haply think it more agreeable to their purpose to gaze on the extern face and daily administration of the Soveraignty than unto the very Right of it it self XX. True examples Much more pertinent to the matter is that of Aristotle who saith That between a full and absolute Monarchy and that like unto the Laconian being but a meer Principality there are some of a Mixt kind whereof we have an example as I conceive in the Isâaelitish Kings who doubtless in most things governed by a full power Mixt Governments For such a King the people required as their Neighbour Nations had Supposing as Josephus testifies That if they were governed like unto their neighbours they should suffer no Inconveniencies not considering that all the Eastern Nations except themselves were under a Slavish Government So Atossa in Aeschylus speaking to the Persians of their King saith That he is not accountable to the City for what he did That of Virgil is well known Nor Aegypt nor vast Lydia Nor Medes nor Parthians thus their Kings obey Livy gives this Character of the Syrians and all the Asian people That they were a kind of men born to be Slaves Not much unlike is that of Apollonius in Philostratus The Assyrians and Medes do adore their Kings nor that of Aristotle Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy And to the same sense is that Civilis Batavus to the Gauls in Tacitus The Syrians and Asians might well serve Hist l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs Not but that there were even at that time Kings also both in Germany and France but as the same Tacitus there observes All the Asian Kings Absolute They were such as governed for the most part in a Precarious way or as I said before more by a Perswasive than by a Coercive Power We observ'd before that the whole body of the people of Israel was under their King And Samuel describing the Government of Kings sufficiently proves That against the Injuries done by them there remained no power at all in the people either to resist or revenge Which the Ancients did rightly gather from those words of King David Tibi soli peccavi Vnto thee only have I sinned because as St. Hierom upon that place glosseth David being a King stood in fear of none but God as having no other Judge but him So likewise St. Ambrose David was a King and so subject to no Laws For Kings are Free from those shackles wherewith their Subjects crimes do entangle them They Fear no punishments being secured by the power of the Empire To Man therefore he sinned not because to him he was not accountable for his Actions Apposite to this is that of Vitiges in Cassiodore Causa regiae potestatis supernis est applicanda judiciis quandoquidem illa coelo petita est ita soli coelo debet Innocentiam The cause of a King is to be referred to Gods Tribunal for from whence he derives his power to him only he owes his Innocence And in cases of such oppressions God himself prescribes the only Remedy that the people can have against their Kings namely Prayers and Tears And ye shall cry out in that day because of the King whom ye have chosen 1 Sam. 8.18 He doth not encourage them to Rebel nor doth he prescribe any Legal way of proceeding against them only they may cry unto the Lord and if he heard them not they must suffer with patience Nor doth Samuel insinuate this to the Jews as if it were nudum factum that is That Kings abusing their power would do so but as if it were Jus Regium a Right proper to Kingly Government to do so The Jews themselves grant that if their Kings did transgress those Laws which Moses prescribed unto them they were to be beaten with Rods. But this was no reproach unto them neither was it by compulsion but by a voluntary susception as a sign of their penitence Nor was it done by any publick Officer but as he imposed it upon himself freely so he chose whom he pleased to do it and prescribed both the manner and measure of his own punishment But from all Coercive punishment their Kings were so free that even that Law of Excalciation Deut. 25.9 because it was not without some reproach was not in force against them Yet notwithstanding all this there were some Cases whereof their Kings had no Right at all to judge but they were reserved to the Great Sanhedrim or Council of the 70. Elders which being Instituted by Moses at Gods special Command continued by a perpetual supply of Election until the dayes of Herod For which cause Deut. 1.17 Pâal 82.1 6. they are by Moses and David frequently called Gods and their Judgement Gods Judgement And those Judges are likewise said to judge not for man but for God 2 Chron. 19.6 8. Nay there is a plain distinction made between the things of God and the things of the King 2 Chron. 19.11 where by the matters of the Lord as the most Learned among the Jews do interpret it are meant the Administring of Judgement according to the Laws of God That the Kings of Judah did by themselves sometimes inflict Capital punishments I cannot deny wherein Maimonides prefers those Kings before the Kings of Israel which is sufficiently cleared by many examples both in Holy Writ and also in other Hebrew Authors But yet the Cognizance of some Causes was not permitted unto them as that of the Tribes that of the High Priests that of a Prophet For it cannot be saith our Saviour that a Prophet perish out of Jerusalem Luke 13.33 And this is evident by the story of Jeremy whom when the Princes demanded to death the King answered them Behold he is in your power for against you the King can do nothing Jer. 38.5 Jer. 38.5 Yea and in another place he that was condemned by the Sanhedrim could not be released by the King himself And therefore Hircanus Jos Ant. l. 14. c. 17. In Criminal Cases the King of Macedon's power availed nothing Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sentence against Herod advised him by Flight to secure himself In Macedonia they that derâved their Pedegree from Caranus as Calisthenes in Arianus reports obtained the Government not by Force but by Law Now the Macedonians though they were accustomed to Regal Government yet had a greater smack of liberty than other Nations For it was not in the power of the King himself to take away the life of any Citizen It was the Antient custome of the Macedonians in criminal
matters to be judged by the Army but in times of peace by the People The Kings power availed nothing farther than his Authority reached There is in another place of the same Author another sign of the same mixture mentioned namely this The Macedonians Curt. lib. 8. saith he ordained that according to the custome of their Nation Their King should never hunt on Foot but in the company of some of his select Friends or Princes The like doth Tacitus write of the Gothones That they were under a stricter Government than others of the German Nation yet not altogether without liberty For whereas he had before described a Principality thus That it governed rather by a Perswasive than Coercive Power He now describes a Kingdom in these words When saith he One person rules without any limitation or exception and that not by entreaty but by absolute command Eustathius upon the Sixth of Homer's Odysses describing the Common-wealth of Corcyra saith That it was a kind of mixt Government having something of Kingly and something of an Aristocratical Government Laonicus Chalcocondylas makes mention of the like Government in Hungary and in England in Arragon and in Navarr where the Magistrates are not created by the King nor are any Garrisons imposed on them against their will nor any thing commanded them by their King contrary to their Laws and Customs Not much different was the Government of the Romans in the time of their Kings For although almost all publick affairs were then transacted by the Regal Power Romulus saith Tacitus governed us as he pleased And it is plain That in the Infancy of their City all power was in the King saith Pomponius yet even at this very time were some few fragments of that power reserved in the people if we may give credit to Dionysius Halicarnassensis but if we had rather believe the Romans in some Cases Appeals might be made from the King unto the people Ep. 100 as Seneca collects out of Cicero's Books de Rep. as also out of some Pontifical Books and Fenestella By and by after Servius Tullius being advanced to the Empire not so much by Right as by popular Favour did much more impair the Majesty of the Kingdom For to gratifie the people for their kindness he ordained some Laws Taâit l. 3. whereunto the Kings themselves stood obliged No marvel then if Livy puts this only difference between the power of the first Consuls and of Kings that it was but Annual The like mixture of Popular and Aristocratical Power there was in Rome iâ the Vacancy of their Kings Viâ Camilli and in the times of their first Consuls For in some things and those of moment what ever the people commanded was established as a Law if the Fathers were made the Authors lib. 5. But as Plutarch observes The People had no Right either to make a Law or to command any other thing unless proposed by the Authority of the Senate The like Mixture of Government Chalcocondylas notes to have been in the Common-wealth of Genoua in his time But afterwards in Rome the power of the people increasing though the Fathers began and proposed as anciently they were wont to do yet as Livy and Dionysius observe the people would decree what they pleased But yet even after this there remained some of this Mixture whilst as the same Livy speaks the Soveraign Power was in the Patricians that is the Senate and the Auxiliary power in the Tribunes i. e. the Plebeians who had a Right to either forbid or intercede when they pleased And of this mixt Government between Democracy and Aristocracy Isocrates would have the Common-wealth of Athens to consist in the time of Solon Now these things being premised let us examine some doubtful Questions which do frequently arise about this matter XXI A Confederate on unequal terms may have the Supream Power The first thing that falls under dispute is this Whether that Nation can be said to have Supream Power that is in League with another Nation upon terms unequal Where by Unequal I do not mean where the Confederate Nations are of Unequal power as when the City Thebes made a League with the Persian Monarch in the time of Pelopidas or the Romans with the Massilians and afterwards with Massanissa Neither do I mean such a League as implyes some one transient Act that seems dishonourable as when an Enemy paying the Charges of the War or performing some such thing is reconciled and becomes a Confederate But where by the express Articles of the League there is some permanent and lasting Prelation given from one to the other As when one Nation is bound to maintain the honour of another as in that League between the Aetolians and the Romans whereby the Aetolians were bound to use their endeavours to preserve as well the dignity as the safety of the Roman Empire which dignity is sometimes called the Majesty and by Tacitus the Reverence of the Empire which he thus expresseth Though they are separate from us in place and live within their own bounds Liâ 4. yet in their minds and understanding they act with us So likewise Florus As for the rest of the Nations though free yet perceiving the vastness of their Empire they did highly reverence the people of Rome being Conquerors of so many Nations Whereunto we may also refer some Rights due to them that undertake the Patronage and defence of others And those Rights the Mother Cities have over smaller Cities and Colonies amongst the Graecians For such Colonies saith Thucydides enjoy the same Right of Liberty as their Mother Cities do Colonies But yet they owe a Reverence to their Mother City and ought to send her presents as an acknowledgement of the honour they have for her Livy concerning that ancient League of the Romans who had received all the Rights of Alba and of that which the Latines derived from Alba saith In that League the Roman State was superiour Andronious Rhodius following Aristotle did well observe that in contracting amity between Nations of equal power Nic. 9.18 The weaker should give the greater honour and the stronger the greater succours It was but reasoble that the weaker should give the greater honour and the stronger afford the greater succours Proculus in his Answer to this Question we very well know namely That that is a Free Nation which is not subject to the power of another although it be comprehended in the League that that Nation shall faithfully uphold the Majesty of the other If therefore a Nation bound by such a Covenant do yet remain free and not subject to the power of another It follows that that Nation doth yet retain its Soveraignty the like may be said of a King For of a free-people and of a King that is truly so there is the same reason Proculus adds further that such a Clause is added in the League to declare that one Nation is superiour to another
Supreme seem to introduce such a state of things as the Poets fansied to have been in Heaven before Majesty was thought on when the lesser Gods denyed the Prerogative of Jupiter But this order or Subordination of one to another is not only approved of by common experience as in every Family the Father is the head next unto him the Mother then the Children and after them the Servants and such as are under them So in every Kingdom Each power under higher powers are And All Governours are under Government To which purpose is that notable saying of St. Augustine Grat. c. 11. â 3. Qui resistit Observe saith he the degrees of all humane things if thy Tutor enjoyn thee any thing thou must do it yet not in case the Proconsul command the contrary Neither must thou obey the Consul if thy Prince command otherwise For in so doing thou canst not be said to contemn Authority but thou chusest to obey that which is highest Neither ought the lesser powers to be offended that the greater is preferred before them For God is the God of order And that also of the same Father concerning Pilate Ad Johan Because saith he God had Invested him with such a Power as was it self subordinate to that of Caesar ' s. But it is also approved of by Divine Authority 1 Ep. 2.1 For St. Peter enjoyns us to be subject unto Kings otherwise than unto Magistrates To Kings as Supreme that is absolutely without exceptions to any other commands than those directly from God who is so far from justifying our resistance that he commands our passive obedience But unto Magistrates as they are deputed by Kings and as they derive their Authority from them Rom. 13. And when St. Paul subjects every soul to the higher Powers doubtless he exempts not Inferiour Magistrates Neither do we find amongst the Hebrews where there were so many Kings utterly regardless of the Laws both of God and Men any Inferiour Magistrates among whom some without all question there were both Pious and Valiant that ever arrogated unto themselves this Right of resisting by force the Power of their Kings without an express command from God who alone hath an unlimited power and jurisdiction over them But on the contrary what duties Inferiour Magistrates owe unto their Kings though wicked Samuel will Instruct us by his own example who though he knew that Saul had corrupted himself 1 Sam. 15 3â and that God also had rejected him from being King yet before the people and before the Elders of Israel he gives him that reverence and respect that was due unto him And so likewise the state of Religion publickly profest did never depend upon any other humane Authority but on that of the King and Sanhedrim For in that after the King the Magistrates with the people engaged themselves to the true worship and service of God it ought to be understood so far forth as it should be in the power of every one of them Nay the very Images of their False Gods which were publickly erected and therefore could not but be scandalous to such as were truly Religious yet were they never demolished so far as we can read of but at the special command either of the people when the Government was Popular or of Kings when the Government was Kingly And if the Scriptures do make mention of any violence sometimes offered unto Kings it is not to justifie the fact but to shew the equity of the Divine Providence in permitting it And whereas they of the contrary perswasion do frequently urge that excellent saying of Trajan the Emperour who delivering a Sword to a Captain of the Praetorian Band said Hoc pro me utere si rectè impero si malè contra me Vse this Sword for me if I govern well but if otherwise against me We must know That Trajan as appears by Pliny's Panegyrick was not willing to assume unto himself Regal power but rather to behave himself as a good Prince who was willing to submit to the Judgement of the Senate and people whose decrees he would have that Captain to execute though it were against himself Whose example both Pertinax and Macrinus did afterwards follow whose excellent Speeches to this purpose are recorded by Herodian The like we read of M. Anthony who refused to touch the publick Treasure without the consent of the Roman Senate VII Of resistance in case of inevitable necessity But the Case will yet be more difficult whether this law of not resisting do oblige us when the dangers that threaten us be extreme and otherwise inevitable For some of the Laws of God himself though they sound absolutely yet seem to admit of some tacite exceptioâs in cases of extreme necessity For so it was by the wisest of the Jewish Doctors expresly determined concerning the Law of their Sabbath in the times of the Hasamonaeans Whence arose that famous saying among them Periculum animae impellit Sabbatum The danger of a mans life drives away the Sabbath When the Jew in Synesius was accused for the breach of the Sabbath he excuseth himself by another Law and that more forcible saying We were in manifest jeopardy of our lives When Bacchides had brought the Army of the Jews into a great strait on their Sabbath day placing his Army before them and behind them the River Jordan being on both sides Jonathan thus bespake his Souldiers Let us go up now and fight for our lives for it standeth not with us to day as in times past 1 Macc. 9.43 44 45. Which case of necessity is approved of even by Christ himself as well in this Law of the Sabbath as in that of not eating the Shew-bread And the Hebrew Doctors pretending the authority of an Ancient Tradition do rightly Interpret their Laws made against the eating of meats forbidden with this tacite exception Not that it was not just with God to have obliged us even unto death but that some Laws of his are conversant about such matters as it cannot easily be believed that they were intended to have been prosecuted with so much Rigour as to reduce us to such an extremity as to dye rather than to disobey them which in humane Laws doth yet further proceed I deny not but that some acts of vertue are so strictly enjoined that if we perform them not we may justly be put to death As for a Sentinel to forsake his station But neither is this to be rashly understood to be the Will of the Law-giver Nor do men assume so much Right over either themselves or others unless it be when and so far forth as extreme necessity requires it For all humane Laws are so constituted or so to be understood as that there should be some allowance for humane frailty The right understanding of this Law â of resisting or not resisting the highest Powers in cases of inevitable necessity seems much to depend upon the Intention of
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
conditione To some things men may have a Right though with some restraint and limitation To the same sense is that of Dion Prusaensis There are many ways and those very discrepant whereby things may be called ours for a right we may have to a thing although we can neither alienate it nor use it at our own pleasure The like I find in Strabo Dominus fuit dempto vendendi jure It was his by right yet had he no power to sell it now very opposite to what hath been here said De moribus Germ. is that which Tacitus records of the Germans Who consigned to such a number of people such a proportion of their fields to inhabit which they presently divided apportioning to every man according to the honour and esteem they had of him By which means seeing that every mans Estate depended on the publick if at any time it should fall out that any part of the whole wanted an owner it was not his that could next seize it but it escheated either to the people in general or to some Superiour Lord. And thus we read that in some places the goods of such as died without children were seized to the use of the people and that there were certain Magistrates appointed to administer them For so Eustathius interprets that of Homer Partiebanter opes rectores urbis The City Rulers did his wealth divide Some such Law as Histories inform us there was anciently in force in the Kingdom of Mexico and haply the Civil Law may have introduced such a kind of right in some other such like cases as we have now begun to observe CHAP. IV. Of a Presumed Dereliction and the following Occupancy And wherein it differs from Prescription and Usucapion Note Usucapion respects things moveable Prescription things immoveable The former must be three years possest the latter ten but if the party be absent twenty I. Why Vsucapion or Prescription strictly taken is of no force among diverse Nations or their Governours II. Yet among these are usually pleaded long Possessions III. The reason drawn from humane conjectures and those not from words only IV. But from deeds done V. And from some left undone VI. How Time joyned with non possession and a non-claim is sufficient to ground our conjectures of a Dereliction VII Ordinarily Time out of Mind sufficeth for such a conjecture and what that time is VIII An Objection answered IX That setting aside conjectures even by the Law of Nations Dominion may seem to be transferred by possession time out of mind X. Whether the Right of such as are unborn may be thus taken away XI That even the Right of Soveraign Power may be thus gained by either King or People XII Whether the Civil Laws concerning Vsucapion and Prescription do bind them that have the Supream Power explained by a distinction XIII What Rights do either separably or communicably adhere to the Supream Power may be either got or lost by Vsucapion or Prescription XIV That Subjects may at any time lawfully assert their own liberty refuted XV. Those Rights that are meerly in our own power no time can take away I. Long possession of no force among different Nations A Notable Question doth here arise concerning a long continued possession For seeing it is the Civil Law that gives life and being to this Right For Time in its own nature hath no effective power For nothing is done by time although there is nothing that is not done in time â Nihil fit à tempore quamvis nihil non fit in tempore it can be of no sorce as Vasquius observes between two free Nations or Kings nor between a King and a Free People no nor between a King and the Subject of another Prince nor yet between two private Subjects of two several Kings or people Thus were the English Commissioners answered demanding Calice upon the Prescription of Two Hundred and Thirty years That Prescription of Time took no place amongst Princes Camd. An. Reg. Eliz. 10. For as we read amongst the Laws of the Twelve Tables Aeterna Authoritas cum hoste isto Our claim against an Enemy i. e. a foreigner is everlasting So likewise in things stoln the right Owner never loseth his property For the word Authority in that place signifies the Right of Dominion which holds true unless it be when either the Thing or Act is held by the Laws of the Territory But yet in admitting this one main inconvenience would ensue namely that Titles to Kingdoms and Controversies concerning their bounds would never be at an end which would not only procure much trouble and perturbation of mind among many and occasion matter for War but is repugnant to the common sense of all Nations II. Yet it is sometimes pleaded by them For both Jephtha in the Sacred Story defends his Title against the Claim of the King of the Ammonites unto all that Land lying between Arnon and Jabock and from the Arabian Desarts unto Jordan by an uninterrupted possession for three hundred years and demands of him why in so long a time neither he nor his Ancestors did ever challenge those Lands And the Lacedaemonians also in Isocrates urge it as a thing most certain and granted by all Nations That publick possessions as well as private might by long continuance take so deep root and be so strongly confirmed that they could never be recovered By which Right they dismissed those that came to demand Massena And thus doth the same Isocrates urge it against King Philip That length of time had rendred the Title Indisputable And upon this very account it was that the latter Philip told Titus Quintius That as for those Cities which he had taken by the Sword he was willing to set them free but for those that he had received from his Ancestors by a just and hereditary right of possession he would not relinquish them Sulpitius pleading against Antiochus shews That because the Graecians had sometimes served in Asia therefore to endeavour by War after so many years past to reduce them again into bondage was very unjust Tac. Anr. l. 6. And nothing among Historians is reputed more vain and foolish ãâã ãâã ãâã ãâã ãâã De off l. 2. than to require things long out of possession To the like purpose is that of Cicero With what colour of Justice can we deprive him of those Lands whereof for so many years nay ages past he hath been quietly possest And that also of Florus Lib. 3. c. 13. Their Countrey notwithstanding which their Ancestors had left them they held as firmly by prescription as if it had descended unto them by an hereditary Right III. How things may be said to be forsaken What then shall we say The effects of Right that depend upon the mind cannot notwithstanding by the sole acts of the mind be obtained unless that act be declared by some overt signs For to attribute so much of efficacy to the bare acts of
to Dominion or Empire because there are few of them but some that are unborn may pretend a Title to If we say it may then will it seem as strong how silence can prejudice them that could never speak as having as yet no existence or how the fact of one man may damnifie another To resolve this we must know He that hath no visible being can have no right that he that hath no visible being can have no right as that which hath no existence can have no accidents wherefore if the people from whose will all right of Soveraignty did originally proceed may change their will surely they cannot be said to injure those that are as yet unborn seeing they have as yet no acquired right But as the people may change their will expresly so may they be believed to do it tacitely and therefore it being granted that the people have changed their will and that the right of those who are as yet unborn doth not exist but that the Parents of whom they may be born and who had a right in the mean time to have preserved it for them did relinquish it what should hinder but that what is thus deserted may be occupied by another Many examples we find in Histories of such Derelictions Many examples of Derelictions Mariana l. 13. c. 18. the most eminent is that of Lewis the Ninth of France whom we find renouncing for himself and his children all that right which by his Mother Blanch he might have claimed to the Kingdom of Castile And those renunciations which the Infanta's of Spain do usually make whensoever they marry to the Kings of France are of force to debar them and their Children from all pretensions to the Crown of Spain And thus much may suffice to be spoken of that right which is natural For by the Civil Law as many other Fictions so this also may be introduced that the Law may in the mean time sustain the persons of such as are unborn and may so provide that nothing shall be possest by any other to their prejudice as the Civil Law doth for the inheritances of Infants and Ideots But whether the Law will do it or not is not rashly to be presumed because what thus conduceth to the particular benefit of these may haply much endanger the Common-wealth There is no doubt but that such a right may be established by the Civil Law as cannot lawfully be alienated by any one act which notwithstanding for the avoiding of the uncertainty of Dominion may by the neglect of claim in some certain time be lost yet so that they that shall afterwards be born may have their personal Action against those by whose neglect they have lost their Right or against their heirs XI That the Title to Empires may be got or lost by Prescription By what hath been already said it is plain that a just Title may be gained by one King against another and by one free people against another not only by express consent but by dereliction and the occupancy following it creating as it were from thence a new Right or Title unto it For as to that general maxim Quae ab initio non valent ex post facto convalescere non possunt Those Titles which were originally naught cannot by any post fact be made good is to be understood with this exception unless some new cause do intervene which of it self is apt and able to form a new right And by this means that is by a manifest dereliction and a long possession he that is a true King may lose his Kingdom and become a Subject to the people and he that was really no King but a Prince may become an absolute King And that Soveraign Power which was once wholly in either King or People may at length come to be divided among them XII Whether Kings are obliged by those Civil Laws of Usucapion or Prescription But here it is not altogether unworthy our pains to enquire Whether the Law of Usucapion or Prescription having the stamp of the Soveraign Power may bind him also that made it or whether the very rights of Empires or their necessary parts which we have elsewhere explained are subject to this Law of Prescription and uninterrupted possession Some Civilians are of opinion that they are and those not a few especially of such as handle questions concerning Soveraign Empire according to the Civil Law of the Romans But we with some others are of another opinion Kings not always bound by their own Laws directly for that a man should be bound up by Laws it is required that in the Law Maker there should be both a power and a will at least strongly presumed so to do But no man can properly impose a Law upon himself as a Superior upon an Inferior for then the person commanding and the person commanded would be one and the same And from hence it is that he that hath power to make a Law hath also a power to change that Law and consequently not only to command according to Law but to command sometimes the Laws themselves for the general good And yet a King may stand obliged by his own Laws though not directly Though indirectly they may Vide infra Bo. 2. ch 20. §. 22. Sen. Epist 85. yet by reflection namely as he is a part of the Body Politick and so in natural equity ought to be conformable to the whole as Saul in the Infancy of his Reign is said to do 1 Sam. 14.40 So in a Ship the Captain sustains two persons one common with the rest being carried also along with them the other proper as he is Governor both of the Ship and those that are in it But here we look at the Law-giver not as apart but as one in whom the power of the whole is contracted For in this place we treat of Soveraign Power as such Neither is it easily to be believed that it was the will of the Law-maker to comprehend himself under the Law he makes unless it be where the matter and reason of the Law is universal as in the apprising of Commodities and the like For there is not the same reason that the Soveraign Power should be bounded and limited by the Law as other things are it being in dignity far above it for if we once admit it to be absolute and supreme we must also grant it some Priviledges and Prerogatives above and before others I never yet found any Civil Law that treated of Prescriptions that could with any probability be understood to include the highest powers Hence then we may conclude that neither the time limited by the Civil Law can suffice to acquire a Soveraign Empire or any of its necessary parts in case these natural Conjectures whereof we have here treated be wanting Nor is such a space of time required if within that time sufficient conjectures of Dereliction shall appear Nor lastly doth the Civil Law which forbids things
altogether discharged of the duty incumbent on him as a Father Nature it self will not admit of such an alienation but yet he may commit his Son to another man to be fed and educated by way of Substitution XXVII What power Lords have over their Slaves The most ignoble of all Subjections is that whereby a man gives himself up to perfect slavery Such were they among the Germans of whom Tacitus speaks That sold themselves for food and rayment And of such there were great numbers among the Graecians who as Dion Prusaeensis notes of Freemen became Slaves and performed their service according to Articles of Agreement Now that we call perfect Bondage which tyes a man during life to perform all manner of work for no other reward but food and cloathing which if it extend it self to whatsoever conduceth to the preservation of Nature is not much to be grieved at For our continual labour is indifferently well recompensed with a constant supply of things necessary for life which they that hire out themselves by the day only do often want This the Stoick Possidonius observed out of Histories that many in ancient times conscious of their own weakness to maintain themselves voluntarily submitted themselves to be commanded by others Constantly performing what they were able and receiving from their Lords whatsoever was necessary for them Like him in Plautus If I were free the charge were mine But being bound that charge is thine XXVIII Whether this power extend to life and death No Lord can have absolute power over the life and death of his Slave if we respect internal Justice For no man can take away the life of another and be guiltless unless it be for some capital crime committed and yet by the Laws of some Nations he that shall kill his Slave for what cause soever is indemnified as Kings are in all Nations by reason of their vast and unlimited power For as Seneca notes If a Servant dare not plead with his Master for fear of suffering the worst of torments De benef lib. 3. c. 22. no more dare Subjects with their Prince nor Soldiers with their General who have all of them equal Right though under unequal Titles No Master then hath a just power to injure his Slave but only as That is sometimes improperly called Just which being done is not punishable Such a Right did Solon give to Parents over their own Children and so did the ancient Roman Laws witness that of Sopater It was lawful for him being a Father to kill his own Children if they offended for the Law presuming upon the Fathers Integrity had permitted such a Right unto him The like power saith Dion we find permitted in many Nations famous for wise and wholesom Laws XXIX Of the Children of Slaves that are born and bred in their Masters family Vide infra Ch. 8. §. 18. Pliny l. 10. c. 34. de columbis Lex Visigothica The Sclavonian Law judgeth the Children by the Father The Laws uf England Littleton de Villanagio The Roman Laws What the Law of Nature is in this case If the Parents cannot maintain the Child but at the Lords charge the Child is a Slave But of the children of Captives which are born of Slaves in their Lords Family there is yet a more difficult question For by the Laws of the Romans and of other Nations concerning Captives as we shall elsewhere shew as of brute Beasts so of people of a servile condition it holds true that Partus sequitur Ventrem As is the Mother so is the Child But this notwithstanding is not altogether congruous to the Law of Nature especially where the Father of the Child may be sufficiently known For since even among dumb creatures as Pliny observes of Doves Amor utrique sobolis aequalis Both Parents are equally concerned for their own young thereby acknowledging their common interest in them So also had not the Civil Law otherwise determined the Child had followed the condition of the Father no less than that of the Mother For if the Son saith the Visigothick Law be born and created by both Parents why should he follow the condition of the Mother only who without the Father could not beget him Among the Sclavonians as also in some parts of Italy among the Lombards and Saxons the children are accounted either bond or free from their Father The Laws of England judge of the Child not by the Mother but by the Father for the Husband and Wife being but one person in our Law and the Wife marrying a Freeman by the common Law of England the Issue is free Which Laws though different from the Roman Civil Law yet as Aquinus notes doth not much deviate from the Law of Nature And why not since among the Romans by their Mensian Law if both the Parents were Aliens the Child born of them were so too as Vlpian tells us Now let us admit that both the Parents are Slaves it is worth our pains to know whether naturally the Child be so or not And certainly if the Parents have no other means to breed up the Child but in their Lords family or at his charge they have a power to deliver him up to the Lord for a Slave For although the Child were ingenuous and free-born yet in such a case they have power by the Law to sell him And in case the Parents were Servants to several Masters then by the Law of Nature the Children were to be divided between their respective Lords But if they had but one Child then of right it belonged to him whose Slave the Father was the Lord of the Mother being first satisfied for his half part and yet of the Children of him that was born in the house of his Lord two parts did accrew to his Lord and but one to the Lord of the Mother according to the Edict of Theodoric Otherwise not as Cassiodore records Now whereas I said before that the Parents if they had not any means to breed up their Children but at the charge of their Lord might deliver them up unto him as his Slaves it may seem that this Power doth naturally arise from their supplying them with food and other necessaries and therefore where there is no such necessity as where there are other means to breed them they have no right to sell them And so it was adjudged by Charles the Bald wherefore the Right that these Lords have in the Children of their bond-servants springs from the many years Alimony that is given them by the Lord before they could be serviceable to him which they are to recompense by their future labour And for this cause the Parents cannot dispose of them to any other man neither may the Servant flee from his Lord until full satisfaction be given unto that Lord for the charge of their education But if the Lord be too unmercifully cruel then that even they who have surrendred themselves as Slaves may provide for their
that as those Alienations so these Infeudations of Kingdoms which Kings have made without the peoples consent yea and the Remission of Homage too have by many people been made void Now the people are said to consent either when the whole body of them do meet to express it as the Germans and Gauls were wont or when the several Provinces do it by their Deputies being thereunto sufficiently authorised As in the German Empire the consent of the Princes Electors doth both by Custom and Covenants conclude all the orders thereof in any Alienation for Whatsoever we do by another is reputed our own act Id facimus quod per alium facimus So neither can any part of an Empire be morgaged without the like consent not only because it usually introduceth an Alienation but for that Kings are bound to their Subjects to exercise the Soveraign Power by themselves and so are the people in general to their respective parts to conserve the administration of the Empire entire this being the chief end of their Consociation X. Inferior Jurisdictions not alienable by the King But as to other lesser Civil Functions I see no reason why the people may not by an hereditary right grant them at their pleasure because they do not thereby diminish the intire body of the Empire yet cannot a King do it without the consent of the people if we consine our selves within the bounds of nature because the effects of a temporary power such as Elective and legally successive Kingdoms are can be but temporary yet may the people as well by their express consent as by their long continued silence give that Right to their Kings For so the Histories of the Medes and Persians do inform us that their Kings usurping this Right did anciently give away whole Towns and Provinces to be held by a perpetual right XI Not the peoples patrimony That part of the peoples Patrimony being amongst the ancient Grecians a part of the common Fields the fruits whereof were designed for the maintenance either of the publick charge of the Common-wealth or of the Royal dignity cannot either in the whole or in any the least part thereof be alienated by Kings without the consent of the three States that is the Clergy Nobles and Commons because they have no right to any thing more than to the present profits no not to the smallest part of it as I have said For Quod meum non est ejus nec exiguam partem alienare mihi jus est Of that which is not mine I cannot alienate the smallest part Yet the people may sooner be presumed to consent by their knowledge and silence in such small matters than in greater And the like may be presumed in cases of common profit or danger concerning the alienation of some parts of the Empire if it be not of any great moment for that Patrimony was at first instituted for the good of the Empire XII The patrimony to be distinguished from the mean profits But many are deceived in that they do not rightly distinguish between the things arising from the Patrimony as its fruits or profits and the Patrimony it self As for example the washing of the banks of a River is patrimonial but the increment which the Flood produceth is but the fruits and profits of it so the power and right of raising a Tax is patrimonial but the mony so raised is but the profits of that Right The right to confiscate is patrimonial but the Lands confiscated are but the profits of that right XIII How far forth that part of the peoples patrimony may be pawned by the King and why Those parts of the peoples patrimony which are so designed as aforesaid may upon just cause be pawned or morgaged by Kings that have full and absolute power that is that have power upon occasion to raise new Taxes upon their Subjects For as Subjects are bound to pay such Taxes so are they likewise bound to satisfie that for which any part of their patrimony is for the publick good pawned the redemption whereof is some kind of Tribute For the very patrimony of the people is a kind of pawn given to the King for the payment of the publick debts and any thing that is thus pawned to me I also have a right to pawn to another Yet what hath hitherto been said is of force unless it be where the Laws of the Land do either enlarge or contract the power either of the Prince or the people XIV Testaments a kind of Alienation This also must be observed That under this Title of Alienation we comprehend likewise Testaments For though Testaments as some other acts also are beholding to the Civil Law for their form yet is the matter of it nearly allyed to dominion and it being granted to the Law of Nature For a man may by Testament give away his Estate not only fully Arist Pol. l. 2. c. 7. but under certain conditions nor irrevocably only but with a power to revoke and yet he may still keep the possession of what he so gives with a full right of enjoying it For a Testament is an Alienation of a mans Estate at his death and revocable till then and yet reserving in himself the full possession and absolute fruition during life Quint. Pater Vide supra Bo. 1. ch 3. §. 12. And therefore Solon in permitting his Citizens to make their Testaments Made them absolute Lords and Proprietors of what they had Surely our Estates would be but burthensom unto us if the power we have in it during life should be taken away from us at our deaths Abraham in pursuance of this Right had he dyed childless had lest by his Testament all his Estate to Eliezer as we may collect from Gen. 15.2 And the making of Testaments was of frequent use among the Hebrews as may appear Deut. 21.16 Ecclus 33.25 But that in some places it is not permitted to Strangers to make their Wills is not to be attributed to the Law of Nations but to the municipal Laws of some Countries and if I mistake not enacted in such an Age when all Strangers were accounted enemies and therefore amongst the more civilized Nations hath long since been worn out of use CHAP. VII Of that Right that is acquired by Law and of Succession from an Intestate I. Of the Civil Laws some are unjust and therefore cannot transfer a Right as in things shipwrackt II. By the Law of Nature a Right may by gained in things taken from another for a just debt and when III. How Succession to an Intestates estate doth naturally arise IV. Whether by the Law of Nature any part of the Parents goods be due to their Children explained by distinction V. The Children of the deceased preferred to the Estate before their Parents and why VI. The Original of Representative Succession VII Of Abdication and Exheredation VIII Of the Right of Natural Issue IX Where are no Children nor Will nor certain Law extant
void Now these things do naturally attend any Oath whereby we may easily judge of the Oaths of Kings and of Foreigners one to the other when the Act is not subject to the Laws or Customs of the place XX. How far the Prince's power prevails over his Subjects Oaths Now let us see what power our Superiors namely Kings Princes Masters and Husbands have in things that concern them in their respective Rights over their several Relations And first we must know That the Acts of our Superiors cannot make an Oath that is truly obligatory void so that it ought not to be fulfilled For this would be repugnant both to Natural and Divine Right but because all our Actions are not fully in our own power but so as they have some dependance on our Superiors therefore we grant that our Superiors have a twofold power over us concerning that which is sworn the one directed upon the person swearing the other upon the person to whom he swears The act of our Superiours may restrain the person swearing either before he swears making such an Oath void so far as the Right of an Inferior is subject to the power of his Superior or after he hath sworn by forbidding the performance of it For an Inferior as such could not bind himself without the approbation of his Superiour beyond which he had no power And after this manner by the Jewish Law the Husband had power to null the Vow of his Wife so had the Father the Vow of his Children so long as they were under the power of his government Seneca starts this question What if there should be a Law enacted that no man should do that which I have promised my friend to do for him Which he thus resolves Eadem lex me defendit quae vetat The same Law defends me that forbids me There are also some mixt acts between both as when the Superior doth appoint that his Inferior shall bind himself by Oath in this or that case namely through fear or want of judgment but with this limitation that the Oath shall bind if his Superiour shall approve thereof And upon this foundation are built all dispensations and absolutions from Oaths which Princes in former times did exercise by themselves cap. 35. as Suetonius testifies in the Reign of Tiberius and Vasquius records to have been long used in Spain which power they now remit that it may be with more piety executed unto the Ecclesiastical jurisdiction The power to absolve from Oaths in whom anciently So the act of a Superiour may be directed against the person to whom it is sworn either by taking away that Right which by that Oath he hath gained or if as yet he hath no Right by forbidding him from claiming any Right by vertue of that Oath And this he may do two ways either by way of punishment or for a more publick good by vertue of his Soveraign power And from hence we may learn what power Princes have over their Subjects Oaths where he that swears and he to whom it is sworn are of several Nations But he that upon his Oath hath promised any thing to a Nocent person as to a Thief or to a Pirate as such cannot by way of punishment take away from him that Right he hath given him For then the words of his promise or of his Oath should have no effect at all which inconvenience is to be avoided For the like cause the Right of that which is promised cannot be compensated with the Right of that which was before controverted in case the agreement were made after that Controversie began Yet may an humane Law remove that impediment which it had put in acts of some certain kind in case an Oath either of what kind soever or in some certain form be added As the Roman Laws have done in such impediments as respect not the publick directly but the private benefit of him that swears which if it may be done the act sworn shall stand in force in the same manner as naturally it would if such an humane Law were not either in obliging hiâ faith only or in giving also a Right to another according to the diverse natures of acts which we have already elsewhere handled XXI What manner of Oath Christ forbad And here by the way we must observe that what is said in the Precepts of Christ and by St. James concerning our not swearing at all doth not properly belong to assertory Oaths whereof we have several examples in St. Paul but unto such as are promissory for a time to come James 5.12 Rom. 1.9.9.1 2 Cor. 1.23.11.31 Phil. 1.8 1 Thes 11.9 1 Tim. 11.7 which is uncertain And this is evident by the opposition in the very words of Christ Ye have heard it said to them of Old Thou shalt not forswear but thou shalt pay thy vows unto the Lord. But I say unto you swear not at all And by the reason that is added by St. James That ye be not found to be deceivers For so the word ãâã ãâã ãâã ãâã ãâã sounds among the Greeks as will appear by Job 34.30 and Mat. 24.57 The same may easily be evinced by our Saviours subsequent words Let your speech be Yea yea Nay nay which St. James thus expounds Let your yea be yea and your nay be nay which is a plain Figure which the Rhethoricians call ãâã ãâã ãâã ãâã ãâã The former yea signifying the promise made the latter yea the fulfilling of that promise For this word ãâã ãâã ãâã ãâã ãâã i. e. yea is an Adverb of yielding granting or promising and is exprest by Amen Apoc. 1.7 The Roman Lawyers exprest it by ãâã ãâã ãâã ãâã ãâã and Quidni which is an affirming or an assenting to that which is asked of us It is used for the fulfilling of a promise by St. Paul 2 Cor. 1.20 Where he saith that all the promises of God in Christ are yea and Amen Hence ariseth that old Heb. Adage An honest mans yea is yea and his no is no But on the contrary he whose words and deeds do not accord is by them said to be ãâã ãâã ãâã ãâã ãâã sometimes off and sometimes on as 2 Cor. 1.18 19. 2 Cor. 1.18 19. That is their ãâã ãâã ãâã ãâã ãâã and their ãâã ãâã ãâã ãâã ãâã their yea is no and their no is yea the meaning whereof is that they are inconstant unsetled always changing So St. Paul himself expounds it for when they charged him with levity he excuseth himself saying that his speech to them was not yea and no but as to himself it was always yea Festus among the various significations of the word Naucum writes thus Some there are that think that it is derived from the Greek ãâã ãâã ãâã ãâã ãâã and so signifies a wavering man Now if ãâã ãâã ãâã ãâã ãâã yea and no signifies lightness or inconstancy it will follow that yea yea and no no signifies stayedness or constancy So
on be such as by the Civil Law may be revoked although the Contracts be agreeable to honesty And that a King is not therefore bound because he hath sworn but as every man may be bound by such just covenants so far as it concerns the other Party But we as we have elsewhere distinguished so do we here between the acts of Kings which they do as Kings and the private acts of the same Kings For what they do as Kings in their politick Capacity is so esteemed as done by the consent of the whole Nation But over such acts as the Laws made by the whole body of the people could have no power because the Community cannot be superiour to it self so neither can the Prerogative Laws of a King null his own publick acts because a King cannot be Superiour to himself Wherefore restitution which receives its vigor from the Civil Law only is of no force against such Contracts Neither are those Contracts to be exempted which Kings make in their Minority II. To what Acts of Kings the Laws extend Without all question if the people elect a King yet not with full and absolute Right but restrain him with some Laws then what acts he shall do contrary to those Laws may by those Laws be made null either altogether or in part because the people did reserve that Right unto themselves But if the King do Reign in full Right i. e. not bounded by any Law yet holds not his Kingdom in propriety i. e. hath no power to alienate it or any part of it or of its Revenues all such acts of his that shall tend to such an alienation are by the Law of Nature void because what he so alienates is not his own But the private acts of a King are to be considered not as the acts of the Community but as the acts of a Part and are therefore made with a purpose that they may follow the common rule of the Laws Whence it is that even the Laws which make void some acts either simply or if the person damnified will shall take place even here also as if it had been contracted upon this condition So we have seen some Kings who have consulted the Laws for remedies against extortion Yet may a King if he please exempt from those Laws his own acts as well as other mens but whether he will so do or not must be gathered from Circumstances If he do then shall the mere Law of Nature determine the case yet with this Proviso That where the Laws do make void any private mans act not in favour to the person acting but as his punishment those Laws are of no force against the acts of Kings nor indeed any other Penal Laws nor any thing else that implies vim cogendi a power Coercive For to punish and to compel cannot proceed but from two different and distinct wills and so from distinct persons neither can the compeller and the compelled be any one person though under diverse respects III. When Kings are bound by their Oaths and when not A King may make void his own Oath as a private man antecedenter i. e. If by a former Oath he hath deprived himself of the power to oblige himself by Oath to any such thing but consequently he cannot for herein also is required a distinction of persons Besides to every such absolution it is requisite that in the very Oath before taken there should have been this limitation or exception either exprest or implied Nisi superior voluerit Vnless my Prince comand the contrary Which in the Oath of a King cannot be admitted because this were to make a King superior to himself or to make his Oath still to depend upon his own will which is contrary to the nature of an Oath And whereas an Oath though made may confer no Right to another by reason of some default in that person yet is he that sweareth bound before God to make good what he hath so promised as is before said And thus also are Kings bound by their Oaths which they make no less than private men though Bodinus thought otherwise IV. How far a King is bound by those Promises which he makes without cause We have likewise already shewed That full and absolute Promises being accepted of do naturally transfer our Right to another Now this holds as well in Kings as in private men Their opinion therefore is not to be admitted who say that Kings are not bound by their promises which they make without good cause which notwithstanding may in some sense be true as we shall shew anon V. Of what use that which hath been said of the power of the Law about the Contracts of Kings That the Civil Laws of a Kingdom have no power over the Covenants and Contracts of a King is well acknowledged by Vasquius But that which he would thence infer namely that what is by him bought or sold for no price certain or what is by him let or taken to hire without any Rent agreed on or what he shall give away in Fee without any Writing or Grant under his hand shall be of force we cannot admit For these acts are done by him not as a King but as any private person and over such acts as these not only the Civil Laws of that Nation but even the Municipal Laws of that City wherein the King resides have power because the King for some special reason placeth himself there as a Member of that Corporation unless it shall appear by good circumstances that it was his will that those acts of his should be exempted from the power of those Laws But that other example brought by the same Vasquius concerning a promise any way made doth very well agree and may be explained by what hath been before said VI. In what sense a King may be obliged to his Subjects by the Law of Nature only or by Civil Law That which Civilians do generally affirm that the Covenants which a King entreth into with his Subjects do oblige by the Law of Nature only and not by the Civil Law is somewhat obscure For that is sometimes corruptly said by the Law-givers naturally to oblige which is only agreeable to the rules of honesty but yet cannot properly be said to be due As for an Executor to pay the entire Legacies without Defalcation though he have not the fourth part of the Testators Estate left him or to pay a just Debt though the Creditor be made by the Law uncapable of receiving it or to requite a Courtesie received all which can no ways be recovered by any action at Law Sometimes again That is more properly said naturally to oblige which is indeed truly obligatory whether it be such as transfers a Right unto another as in Contracts or such as transfers none as in a full and firm Pollicitation Maimonides the Jew doth very aptly distinguish between these three Whatsoever cometh more than is due falls under the notion of mercy which
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word ãâã ãâã ãâã ãâã ãâã the Greeks do commonly understand Righteousness and by the word ãâã ãâã ãâã ãâã ãâã judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
notwithstanding is not he that negotiates the publick affairs to be strictly tyed up to this rule as some hold so that his act shall then only be held firm and ratified when the Common-wealth is meliorated by it For to reduce a Prince to such straits would be dangerous to the Commonwealth Neither is it likely that when the people transferr'd the Government upon him they intended so to retain him But what the Roman Emperors answered in the cause of their City That what was transferred by the Magistrate â should be of force in doubtful matters but not when that which is clearly due to the City is rashly given away or forgiven the same answer may and ought to be given to this question in the behalf of the whole body of the people observing a due proportion For as it is not every Law that obligeth Subjects for besides those which command things unlawful some Laws are evidently absurd and foolish as that Law of Cabades King of Persia recorded by Procopius and Agathias Neither is it congruous to reason as Peter Ambassador of Justine the Second told Cosroes King of Persia treating about some things which Justinian seemed long before to promise to the Saracens That a Common-wealth should forever be condemned for one simple Law or custome introduced or enacted by one man although an Emperor So also the Contracts of Princes do bind their Subjects if they have any probable reason to justifie them which in doubtful cases ought to be presumed in respect of the wisdom and authority of those that made them And it is much safer thus to distinguish of them than as some do by the greater or lesser damage that ariseth to the Commonwealth by them For we are not so much to regard the event of such Contracts as the reasons whereupon they were grounded which if probable the people shall be bound by them if by any accident they shall begin to a be free people and so shall they that are Successors as being for the time the heads of the people For if the people being free shall make any Contract or agreement their Kings that shall afterwards Reign shall thereby be bound although he receive the Kingdom in the fullest Right The Emperor Titus is highly commended for this That he would not endure to be sollicited to confirm any thing that his Predecessors had granted thinking it but reasonable That if he expected that his Successors should be bound by his acts he also should be obliged by the acts of their Predecessors Suet. c. 8. The Grants of good Princes shall bind their Successours Whereas Tiberius and they that succeeded him did never hold the Grants of his Predecessors to be good unless they themselves had granted the same to the same persons That excellent Emperor Nerva following the example of Titus in that Edict recorded by Pliny speaks thus Let not any man conceive That what he hath got from any of my Predecessors either privately or publickly shall by me be so far rescinded as that they shall be indebted to me though but to confirm it neither shall they need any mans Intercession to obtain it But when Tacitus had declared how Vitellius had torn the Empire in pieces without any regard had to Posterity the Common people flocking about him But not of prodigal Princes and courting him for his profuse gifts and some others hoping for a good purchase tempting him with ready money at length adds this Apud sapientes cassa habebantur qua neque dari neque accipi salva republica poterant That such gifts were always by wise men accounted void which could neither be given nor received without endangering the Commonwealth Which very saying of Tacitus is much commended by Mariana and applyed to the vast and unbounded Beneficence of Frederick King of Naples who gave away as Philip de Comines relates not his own Crown Lands only but other mens also according as his fancy led him The same may very fitly be applyed to the question in hand and therefore Galba made no scruple of revoking the Grants of Nero even from those that had purchased them leaving the Tenth part only unto them as Tacitus and Plutarch testifie So did Basilius the Macedonian Emperor recover all that the Emperor Michael had given away Whereof Zonaras thus That it was unanimously agreed that They that had received moneys without any probable cause should restore it some wholly and others one half The like did Charles the Eighth of France revoke all that Lewis the Eleventh had prodigally given not excepting his Donatives to the Church As Commineus testifies Comines lib. 9. This also may here be added if any such accident fall out wherein a Contract made by a King is discovered to be not only damagable but pernitious to the Commonwealth so that at the time when the said Contract was so made had it been applyed to that case it had been judged unlawful and unjust Then may that Contract be not so much revoked as declared to be no longer binding as if made with condition of being void in that case without which condition it could not have been justly made Thus did that wise Queen Elizabeth revoke some priviledges granted to the Hans-Towns See Camdens Elizab. Anno. 1595 1597. in Controversia Hansiatica by her Predecessors when they began to exact them as due by rigour of Law and not as granted them by the meer favour of the Prince Alledging that priviledges granted by Princes to their subjects much more to strangers might according to the times for the benefit of the Commonwealth and other causes be lawfully suspended yea revoked and made void And when the same Queen had drawn a dangerous War upon her self for assisting the Hollanders who refused to repay her those vast sums expended for their ten years defence upon pretence that by her Contract with them that money was not due till the War was ended and that till then she could not recede from her contract She prudently replyed That all Contracts between Princes were to be understood to admit of an interpretation of sincere fidelity Neither is any Prince bound by his Contracts when for just cause that Contract turneth to the publick Detriment That the peace is not broken though a Prince recede from his Contract when it is done by an accident of a new case or when it comes to a new case which had it been thought on had otherwise been provided against Lastly That a Prince is not bound by any Contract though solemnly made if it tend to the Detriment of the Commonwealth For that a Prince is more strongly bound to the Commonwealth Vide Camd. Eliz. 1595 1597. than to his own Promise as Mr. Camden records And what is here said of Contracts is true also in the Alienation of the peoples money and of any other things which the King hath by Law a power to alienate for the publick good For herein also is this
Treasury but the Money he had raised by the selling of the Captives But having Conquered the Hetrusci and made sale of the Captives out of the Money so raised he restored to some Roman Matrons the Gold they had contributed to maintain the War and laid up three Cups of Gold in the Capitol Fabricus having conquered the Lacanes the Brutii and the Samnites Liv. l. 5. L. 6. did very much enrich the Souldiery restored to every Citizen his Taxes and brought into the Treasury Four hundred Talents besides So did Fabius when he had taken Tarentum Liv. lib. 37. brought the Money raised by the sale of Prisoners into the Treasury but the rest of the spoil he disperst among his Souldiers Thus did Q. Fulvius and Appius Claudius when they had taken Hanno's Camp they sold the spoil and divided it rewarding every man that had done any signal service in that fight Scipio having taken Carthage Lib. 25. gave the spoil of the City to his Souldiers reserving only the Gold and Silver to gratifie his friends Acilius upon the taking of Lamia divided among the Souldiers one part of the spoil and sold the other Cn. Manlius having subdued the Gallogrecians Liv. l. 37. and according to the then Romish superstition burnt their Arms sold the rest of the Prey Id. l. 38. part whereof as his own he brought into the Treasury the rest he divided among his Souldiers with singular care as was most fit XXI Oft-times it was embezelled Whence we may collect That no less among the Romans than among other Nations the spoil did belong to the people of Rome though the disposition thereof was sometimes granted to their Generals yet so that they were to give account thereof to the people which we may learn amongst others by the example of L. Scipio Lib. 5. c. 3. who as Valerius Maximus relates it having conquered King Antiochus and added Asia to the Roman Empire Livy lib. 45. was afterwards as Livy reports condemned for enriching himself with the spoil that belonged to the Commonwealth for he had received Four hundred and eighty Talents of Silver from the Enemy more than he had brought into the Treasury Cato in his Oration concerning the spoil taken from the Enemy bitterly and resolutely complains of the licence and impunity granted unto their Generals in his time in imbezelling the spoils of the Enemy and so robbing the publick Treasury A fragment of which Oration is recorded by Aulus Gellius in these words L. 11. c. 18. Fures privatorum furtorum in nervo atque compedibus aetatem agunt Fures publici in auro atque purpura Private Thieves we usually load with bolts and fetters But they that rob the Commonwealth are clad in Gold and Purple and are indeed the only Gallants of our age So elsewhere the same Cato wonders That any man should dare to hang up in his own house those Ensignes that were taken in Wars as if they were a part of hiâ own houshold-stuff Neither are Generals only guilty of this crime but even private Souldiers in case what they so take from the enemy they do not forthwith produce in publick For they were all of them bound by Oath saith Polybius that they should not purloin or convey away any thing of the prey but that they should faithfully discharge their trust in regard of their Oaths Lib. 16. c. 4. The Form whereof we find recorded by Aulus Gellius whereby they were obliged not to take away any thing either within the Army or within ten miles of it that was more worth than a small piece of Silver or if they did then they were to bring it to the Consul or within three days to make open profession of what they had done which gives some light to that of Modestinus Is qui praedam ab hostibus surripuit Peculatus tenetur He that stealeth away any of the spoil and keeps it to himself is guilty of robbing the publick Treasury And this one thing is sufficient to admonish those that expound the Law not to believe that the spoils taken from the enemy are peculiar unto those that take them but unto the State that bears the charges of the War For there can be no robbing of the Commonwealth but in those things that are either publick sacred or religious The result of all this is to shew That setting aside the Civil Law and primarily whatsoever is in the publick acts of a Just War taken from the enemy belongs to the Prince or people who are at the charge of making the War XXII That somewhat may be changed of this common right by any Law or Act of the Will We add setting aside the Civil Law and primarily or directly The former because the Law whether made by the people as among the Romans or by the King as among the Hebrews and other places may dispose of these things that are not actually possest to the benefit of the Commonwealth And here under the word Law we understand also Custom if rightly introduced The latter I add that we may know that it is in the power of the people to grant the spoils of the enemy to others as well as they may dispose of other things And that not only after they are got but before so that immediately upon the taking of them Actions are commenced brevi manu as the Lawyers speak that is compendiously declining the dilatory Forms of Suits Which Grant may be made not only nominally but generally also as to Widows to the aged and impotent and to poor Orphans as part of the spoil was thus given in the times of the Maccabites 2 Mac. 8.28 30. or unto uncertain persons in imitation of those Sportulae which the Roman Consuls and other Princes cast among the people whereof every man had liberty to catch what he would Neither is the translation of this Right either by Law or Grant unto others always a mere donative For sometimes it is due by some former Covenant or Agreement sometimes in discharge of some Debt or as a recompence for some loss received or some extraordinary charge men have been at in the War either by purse or pains As when a man serves in the War without pay or for less than his pains deserves For in these cases it is usual we see to grant either all or some part of the spoil unto others XXIII Some of the spoil may be due to our Associates It is also observed by Civilians That Custom hath so far prevailed almost every where that whatsoever either our Associates or Subjects that serve without pay and at their own cost and peril shall take in the Wars is their own As to our Associates the reason is manifest because by the Law of Nature they that are associated in a War are bound to repair each others losses which shall be occasioned by reason of the War which is common and publick Besides there are very few that will
we make not the act void Thus the old Pimp in Terence Leno sum fateor Pernities communis Adolescentûm Perjurus Pestis tamen tibi à me nulla est orta injuria A Bawd I am Youth 's Common Pest 't is known Perjur'd yet wrong by me Thou hast had none It was no ill Plea then that Nabis in Livy made when his tyranny was objected against him by Quintius Flaminius Concerning the name Tyrant I answer That whatsoever I am I am the very same I was when thou O Titus Quintius entredst in League with me And by and by These things whatsoever they are I did when ye contracted friendship with me Whereunto he presently adds Si quid ego mut âssem mihi inconstantiae meae cum vos mutetis vobis vestrae ratio reddenda est If I had changed I ought to have given the reason of my inconstancy but seeing it is you that change you ought to give the reason of yours Not much unlike unto this is the Answer that Pericles in Thucydides gives unto his Subjects Our Confederates we shall permit to enjoy their own freedom and to live by their own Laws if they did so when they first entred into League with us IV. Fear not to be objected if the Promiser were not himself affrighted Another Objection may be made which I have heretofore hinted * Lib. 2. c. 11. § 7. namely That he that by fear hath extorted a promise ought in Justice to release the Promiser as having by his injustice damnified him that is by such an act as is repugnant both to the nature of humane Liberty and to the nature of the act it self for all promises that bind ought to be free This though in some cases true yet is not to be extended to all promises that are made to Thieves for that the Promised be bound to free the Promiser it is requisite that he to whom the promise was made should have extorted the promise by an unjust fear But in case a man shall come and promise to pay the ransome of his Friend and thereby deliver him out of Bondage he is bound to perform it because there was no impression of fear upon this man who in the behalf of his Friend came voluntarily to make this Contract V. What if the promise were bound by Oath Whereunto we may add That he that is compelled even by an unjust fear to make a promise may be obliged to perform it if he confirm that promise with an Oath for thereby as we have shewed before he stands bound not unto men only but unto God against whom no exceptions can be admitted But true it is notwithstanding That by such a sole promise though confirmed by Oath the Heir of the Promiser stands not obliged for those things only descend to the Heir which by the original Right of Dominion may pass from man to man in ordinary Traffick But those things that are due unto God cannot as such be included amongst these Moreover here we must again repeat what we before delivered Lib. 3. c. 4. §. 10. That if a man do haply break his faith with a Thief whether sworn or unsworn he shall thereby incur no punishment amongst other Nations For generally all Nations in detestation of these men whom they account as common enemies to humane Society are pleased to connive at whatsoever is though unjustly done against them VI. This applied to Subjects that make War But what shall we say concerning the War that Subjects make against their King or against such as have the Supreme Authority Though they may haply have a cause not in it self altogether unjust yet that they can have no Right to act by force against their Prince we have elsewhere shewed * Lib. 1. c. 4. But yet it sometimes so happens That either their Cause is so notoriously unjust or their obstinacy in resisting so great that it may be severely punished But yet if they be treated with as Rebels or Traitors and therein any promise made unto them the punishment though justly due for their Treason ought not to be pleaded in Bar to the performance of that promise For such was the piety of the Ancients that they durst not break their faith no not with their very Slaves as may appear by the Lacedemonians Aelian 6 7. who were generally believed to have been justly punished for putting their Tenarensian Prisoners to death contrary to their Covenants And it is likewise observed by Diodorus Lib. 11. That the faith given to Slaves in the Temple of the Palici was never broken by any of their Lords Neither will any exceptions of fear be allowed of in this Case if the faith given be by Oath confirmed as we may collect from M. Pomponius the Tribune of the People Sen. de benef l. 3. c. 37. who being bound by Oath punctually performed what he had though compelled by fear promised to L. Manlius VII Of Promises made by Sovereign Princes unto their Subjects But a greater difficulty than any before mentioned may arise from the Legislative Power and from that supereminent Right of Dominion which every City hath over the things of their Citizens and which is exercised in its name by him who hath the Supreme Power therein Which supereminent Right if it extend it self to all that is the Subjects why should it not likewise unto that Right which ariseth from any promise made in War Which being granted then it should seem that all such Promises and Agreements may be null'd and so all hopes of concluding a War unless by Victory would be lost But on the contrary we must observe That this superlative Right is not fit to be put in execution promiscuously at all times but so far forth as it is commonly expedient to the preservation of the publick safety in a Government not Tyrannical but Civil yea even Regal But for the most part it is commonly expedient That all such Promises and Agreements should be fulfilled Very apposite to this purpose is that which we have already written concerning the defence of the present Government adding thereunto That where the publick safety requires that this Sovereign Right should be made use of satisfaction ought to be given out of the publick to such particular persons as shall be thereby damnified as shall be hereafter more fully explained VIII That such promises may be confirmed by the Oath of the City Moreover Agreements may be confirmed by Oath and that not by the King or Senate alone but by the whole Body Politick as Lycurgus bound the Lacedemonians and Solon the Athenians by Oath to observe the Laws they had given them And lest the change of Citizens should in time relax the binding power of this Oath and so at length it be forgotten or left arbitrary this Oath may be every Year renewed which if done the Citizens could by no means recede from their Engagements no though it were for their publick profit For a City hath
Polybius notes rather carried himself like a Conquerour Lib. 16. than thought himself one Lib. 29.40 And as to those other things which as well Livy in several places as the Authours before recited do set down as signs of Victory as the taking of the spoil the granting leave to bury the dead and the offering Battel a second time These though they carry some shew of Victory yet of themselves prove nothing but as they are backt with other more demonstrative Aguments of the Enemies Flight Plutarch concerning Agesilaus writes thus Having given the Enemy leave to bury their dead and thereby gained to himself the honour of being Conquerour he went to Delphos So the same Plutarch in the life of Nicias proves both by Law and Custom That he who craves leave to bury his dead seems thereby to disclaim the Victory Neither had they that craved this leave any Right at all to erect Trophees But this as I have already said is no infallible sign of Victory and yet where the Victory is otherwise doubtful he that first departs the Field may more probably be thought to fly than he that keeps it But where there are no certain signs of Victory there every thing is to remain as before the Fight and so both Parties are either to prosecute the War or to draw to a new Agreement for Peace XLVI War sometimes determined by Arbitration Concerning Arbiters Proculus informs us That they are of two sorts whereof the one he makes so Authoritative that whether his award be just or unjust it must be obeyed which saith he is to he observed whensoever both Parties do engage themselves to stand to the determination of a third person The other he makes to be less binding as when both Parties are content to refer their Case to be moderated by some indifferent person An example whereof we have in that Answer of Celsus If the Servant being made free shall swear to perform such services as his Patron shall think fit to impose upon him the imposition of the Patron shall not be binding unless what he imposeth be equal But this interpretation of an Oath though haply it might be warranted by the Roman Laws yet can it not agree with the plain and genuine sense of the words simply taken But yet this is very true That the word Arbiter may be taken in both senses either for a Moderator only such as the Athenians were between the Rhodians and Demetrius or for an absolute Judge whose Sentence must be obeyed And in this sense we here take it as also we did elsewhere treating of the means how to prevent a War Lib. 2. c. 22. And yet even against such Arbiters to whose award both Parties have mutually promised to stand it may be provided by the Civil Law as in some places it is That Appeals shall be granted and Bills of complaint admitted But this cannot be between Kings or between Nations for here can be no superiour Power that can either hinder or dissolve the obliging power of the promise And therefore whether the Sentence be right or wrong we must be concluded by it So that what Pliny sometimes said may very fitly be applied hither Praef. Nat. Hist Summum quisque Causae suae Judicem facit quemcunque elegit Every man makes him to whom he refers himself the supreme Judge of his own Cause This also we must add That it is one thing to discourse concerning the Duty of an Arbiter what he ought to do and another thing to treat of their obligation that are content to refer their Cause to such an Arbitrement For as though there were a Law among the Cities of Italy That one Kinsman should not go to Law with another but that all differences should be determined by Arbiters chosen on purpose yet notwithstanding this Law there were some Cases wherein they might refuse such a reference So also there may be some Cases and some Reasons why Princes may refuse to put their differences to Arbitrement Amongst which this is not the least When no assurance can be given that the persons referring will stand to the award Quis alterutrum coget nostrum qui conventis stare noluerit saith Augustus to Mark Anthony Who shall compel him of us two that refuseth to be determined by the Sentence of our common Judge or Arbiter Private men may be compelled to stand to an Agreement by the publick Magistrate but who shall compel Princes that have no Superior Other Reasons also there may be Albericus Gentilis See pag. 335. as that of Philip King of Spain who refused the Pope to be Arbitrator between himself and other Competitors for the Kingdom of Portugal because the Pope claimed the decision of all such Controversies as his Right wherefore that prudent King was unwilling to add his own example to some ancient ones whereby the Pope might prove himself to be the sole Arbiter of Kingdoms XLVII Arbiters in Cases dubious tied up to Law That which is to be considered in an Arbiter is Whether he be chosen as a Judge or as a Moderator which was the proper Office of an Arbiter as Seneca thought where he tells us * Lib. 2. de benef c. 7. That a good Cause is better referred to a Judge than to an Arbiter Melior videtur conditio bonae Causae si ad Judicem quam si ad Arbitrum mittitur Because a Judg hath a constant Rule to walk by which he must not transgress whereas an Arbiter being freed from the Shackles of the Law hath liberty to judge according to equity and good conscience and therefore can either add or detract from the rigour of the Law and give Sentence not always as Justice shall exact but sometimes as pity and humanity shall direct Rhet. 1. c. 19. Aristotle reckons it as a Duty of an honest and a frugal man to refer his Cause to an indifferent Arbiter rather than to a severe Judge Arbiter id quod aequum est respicit Judex Legem For an Arbiter looks at that which is righteous but a Judge at that only which is legal And therefore is an Arbiter made choice of to the end he may rebate the edge of the Law or otherwise supply that wherein the Law is defective Equity what For equity in this place doth not signifie as elsewhere that part of Justice that expounds the general words of the Law nearest to the mind of the Law-maker for even this also is the Office of a Judge but every thing that is better done than not done although it be not according to the strict Rules of Justice properly so called But such Arbiters as they are very frequent among private men that are Fellow-Citizens or Subjects to the same State and are highly commended especially to us Christians by St Paul 1 Cor. 6. so in such Cases as are ambiguous we are not to allow them so much power as to determine of them For in these we are to
follow that sense that hath the least of doubt in it but especially when the dispute ariseth between two Sovereign Princes who having no common Judg between them may be presumed to restrain the power of Arbiters within those strict Rules of Justice which Judges are usually confined to XLVIII Arbiters not to judg of possessions Where this also is to be noted That such as are chosen Arbiters by a People or such as have the Sovereign Power over them ought to give Sentence on the principal matter but not to intermeddle with Possessions For the judgment of these belong to the Civil Law By the Law of Nations Dominion follows the Right of Possession and therefore till the Cause be tryed no innovation ought to be made as well to avoid prejudice as because the recovery of things out of possession is difficult Wherefore Livy in his Book of Pleas between the Carthaginians and Massinissa hath this Observation Legati jus possessionum non mutarunt Ambassadours do never alter the Right of Possessions XLIX What the power is of a pure Dedition There is also an assuming of an Arbiter but of another kind when a man yields himself up to the judgment of his very Enemy which is a pure and absolute surrender whereby he makes himself a Slave and gives his Enemy Sovereign Power over him Thus the Aetolians in Livy were demanded in the Senate Whether they would submit themselves to the Judgment of the Romans This was the advice of L. Cornelius Lentulus Lib. 37. as it is recorded by Appian about the end of the second Punick War Lib. 14. concerning the affairs of Carthage Let the Carthaginians saith he submit themselves to our censures as the Vanquished usually do and as many others have formerly done then we shall see how thankful they will be for what we shall give them Neither shall they call this a League for the difference between a League and this is great For if we enter into a League with them they will never want some plausible excuse to break it alledging That they had been first injured in some part of it for seeing that many words in that League will admit of a doubtful interpretation they can never want a pretence that have a mind to cavil But when we shall have disarmed them as Prisoners and made them our Slaves then at length they will perceive That they have nothing that is properly their own and then they will despond and whatsoever we shall afterwards give them they will thankfully accept of as of a mere gratuity But here also we must distinguish between what the Conquered ought to suffer what the Conquerour by the Right of his Conquest may do and lastly what most of all becomes him The Conquered Party having yielded themselves ought to suffer whatsoever the Conquerour will impose upon them for being perfectly inslaved if we respect that Right of War that is external they have nothing but what may be taken from them even their lives and personal liberty much more their Goods whether they be those that are publick or those that belong unto them as private men Lib. 37. The Aetolians saith Livy having yielded themselves to the will of their Enemies dreaded nothing more than corporal punishments Above Book 3. Chap. 8. Sect. 4. And as we have elsewhere said When all things are surrendred it rests in the choice of the Conquerour what he will take away and wherein and how far he will punish the Conquered Pertinent whereunto is that of Livy It was the ancient custom of the Romans when they had to do with a people or a King with whom they were not joined in friendship either by League or by equal Laws not to use their Sovereign Power over them as being at peace with them until they had first delivered up unto them all things both Divine and humane and until they had received their Hostages taken away their Armes and had placed Garrisons in their Cities Yea and sometimes they that thus surrendred themselves might be killed as we have elsewhere shewed * Above Book 3. Chap. 11. Sect. 18. L. The Duty of a Conqueror towards the Conquered But the Conquerour that he may do nothing unjustly ought in the first place to take care that no mans life be taken from him unless it be for some crime that deserves death As also that no mans Goods be taken from him unless it be by way of a just punishment For in the Conqueror there is nothing so honourable nor in some Cases so necessary as in this manner to extend his clemency and liberality to the Conquered so far forth as it may stand with his own security See Book 3. Chap. 15. in finem When Cyrus had subdued the Assyrians he comforted them by this assurance That their Condition should be the same that before it was their Houses Lands Wives and Children they should freely enjoy and in Case any personal injuries were offered them both he and his would readily defend them Admirable are the effects of those Wars that are concluded with a general pardon Thus did Nicholas the Syracusian plead in Diodorus in the behalf of those that had yielded to mercy They have saith he yielded themselves and given up their Armes relying wholly on the Conquerours clemency Quare indignum foret eos decipi spe nostrae humanitatis Wherefore it would be an everlasting dishonour to us to suffer them to be deceived in their confidence they have of our clemency And a little after Who amongst all the Grecians did ever inexorably condemn them to punishment who yielded themselves to the Conquerours mercy Appian brings in Octavius Caesar thus bespeaking L. Antonius when he came to surrender himself If the end of thy coming hither had been to purchase thy Peace only thou hadst found me not only a Conquerour but such a Conquerour as was throughly incensed by the wrongs thou hast done but since thou art come to yield thy self thy Friends and thine Armes to our discretion thou hast appeased mine anger and taken away from me that power I had to have enforced thee to have accepted of what Conditions I pleased For I am now to weigh not so much what thou deservest to suffer as what becomes me to grant wherefore I shall chuse rather to consult mine own honour by forgiving than to gratifie my passion by a just revenge We do often meet with these expressions in the Roman Stories namely That the Conquered do yield themselves sometimes to the faith sometimes to the mercy or clemency of the Conqueror As in Livy To those Ambassadours that were sent from the Neighbour Provinces to surrender their Cities to the faith of the Romans he gave a gracious Audience So in another place speaking of King Perseus he saith Paulus earnestly labouring that he might be permitted to surrender both himself and whatsoever was his to the faith and clemency of the People of Rome Whereby nothing else is to be
commendable wherefore they that blamed King Perseus for suffering himself to be deluded through hopes of Peace had not so great a regard to justice and fidelity Liv. l. 42. as to the generosity of a mind emulous of Martial Glory as may be sufficiently collected from what hath been already said concerning the deceits and stratagems usual in War Such was that stratagem wherewith Asdrubal preserved himself and his Army out of the Ausetane Forests And that also whereby Scipio African the Elder See Bo. 3. c. 1. §. 6. c. Livy l. 26. lib. 30. discovered the situation of Syphax his Camp both which we find recorded by Livy whose example L. Sulla also followed in the social War at Esernia as Frontinus informs us V. Of dumb Signs which by custom are significant There are also some dumb signs which through custome are significant as testifying the consent of the will as of old the branches of Olives and among the Macedonians the erection of Pikes among the Romans the covering of their heads with their Shields these were then the usual signs of submission and rendition So also was the folding of the hands behind them among the Persians and the turning of their Shields and Ensigns downwards among the Romans Lib. 18. Lib. 26. Lib. 22. as Ammianus testifies The Germans and from them some other Nations express their submission by the holding forth of Herbs or Grass as Pliny tells us And they that yield themselves to the Conquerour do usually cast away their Armes and beg mercy as Servius notes upon Virgil. But he that would signify his acception of a surrender whether he be bound to give quarter and how far forth we may inform our selves by what hath been said above In our days the hanging forth of a white Flagg is a tacite sign that a Treaty is demanded So among the Northern Nations is the kindling of a fire as Johannes Magnus relates Pliny l. 15. c. 30. The like doth Pliny write of the Laurel all which according to the customes of several Nations are no less significant and consequently as obligatory as if they were exprest by words and voices VI. Of a tacite approbation of something demanded A Sponsion made by a General how far forth it may be believed to be tacitely approved of by the Prince or People we have already declared * Bo. 3. ch 4. §. 15. Bo. 2. ch 15. §. 17. as namely when both the act is sufficiently known and thereupon some thing done or not done whereof no other reason can be given but what proceeded from their consent to that promise or agreement VII Punishments when tacitely remitted We cannot conclude that a punishment is remitted because it is for a time dissembled or connived at but some other act must necessarily intervene which either by it self may argue either a perfect reconciliation as when a League of friendship is made with such a man or at least that the person offended hath so great an opinion of the vertue or the valour of the person punishable that what he formerly did deserves to be pardoned whether this opinion be by words exprest or by such other means as are usually taken to signifie as much VIII Whether the actors being pardoned the instigators be also acquitted Another Question we find discust by Polybius namely Whether a punishment being remitted to them that did the mischief may be judged to be remitted to them that commanded it to be done which I conceive it ought not for Singulos tenent sua delicta Every Fox ought to pay his own skin to the fleaer and every offender bear his own punishment A TABLE put Alphabetically guiding to the PRINCIPAL MATTERS and WORDS contained in the TREATISE A. ABraham declaring Sarah to be his Sister did not deny her to be his Wife page 438 Abraham by the light of Nature made War upon the four Kings with Commission from God 13 15. and gave the Tenth of the Spoil unto God page 468 Abraham's Sons by Keturah had Legacies no Lands page 125 Abraham assists Infidels in a Social War page 185 The Absents Right devolves upon the Present page 114 The Absent sometimes partake of the Spoil page 476 Absolutions and Dispensations from Oaths from whence they arise 174. to whom they anciently belonged ibid. Abstinence from spoiling a Country at Peace page 431 432 Absurdities to avoid conjectural Interpretations admitted 197. or other improper or figurative page 192 193 What is Accepted in full of a Debt is a Discharge page 98 Acceptance to a Promise that transfer a Right requisite 154 155. whether it be necessarily to be made known to the Promiser page 155 Acceptance in the behalf of another of what force page 156 Accusations criminal by none but Persons Authorized page 374 Acquisitions by War peculiar to a solemn War 480. naturally just 405. original Acquisitions page 88 Acquisitions improperly said to belong to the Law of Nations page 134 To Actions two things excite the goodness of the end and the facility of obtaining it page 419 Acts some abhorred by humane Nature page 6 Acts contrary to Oaths sometimes sinful sometimes void page 173 Acts beneficent permutatory page 157 Acts diremptory commutatory mixt page 158 Acts generally permitted to all cannot justly be denied to any without some Cause page 86 Acts in War either publick or private what is taken by the former is the States maintaining the War what by the latter is theirs that take it page 472 In such Acts of a King as private men do the Civil Law binds him but not in such as he doth as a King page 177 Acts against Conscience unlawful page 411 Acts not liable to humane Laws page 450 Acts of Kings in which the Laws have power page 176 Acts internal of the mind insufficient for alienation page 41 Act involuntary arising from voluntary naturally accounted as voluntary page 203 Acts inevitable to humane Nature not subject to humane Laws 374. nor such âs are not directly or indirectly destructive to humane Society page 375 Acts some in a Just War not internally just page 498 Acts of prepensed maâââ are to be punished of humane frailty and are to be chastised of inevitable misfortune are to be pardoned page 500 Actors being forgiven whether the Instigator be acquitted page 370 ãâã ãâã ãâã ãâã ãâã page 136 Admonitions concerning things done in an unjust War page 494 Adopted Sons what Right a man hath over them page 115 Adultery Incest c. capitally punished before Moses page 16 Adultery to lye with a Woman betrothed to another page 196 Of Adultery he that puts away his Wife and he that marries her both guilty by the Gospel page 106 In Adultery taken if the Husband kill the Wife or the Wife her Husband the Magistrate may remit the punishment but not the sin page 374 An Adulterer and an Adulteress to what obliged page 202 Aetolians Souldiers of Fortune page 549 Age 30. years 3. Ages 100. years
236. under Alexander deny to carry Materials to the Temple of Belus 428. in what Cases not to associate with wicked Kings page 185 Ignorance excuses when page 237 Ignorants to be spared in a Just War page 500 Ignorantly and through Ignorance distinguished ibid. Islands and Increments by inundation whose 136. floating 137. how distinguished from Increments ibid. Images abhorred by the Persian Magi 466. to deface to him that believes to include a Deity impiety ibid. Imperare ãâã ãâã ãâã ãâã ãâã page 50 Impiety and open profaneness towards any that is acknowledged as God punishable page 392 Imprisonment unjust to what it obligeth page 201 Importation of some goods prohibited page 86 Of Inequality The Law of Nation takes no cognizance if consented unto page 165 Incestuous Marriages forbidden by the Law of Nature 107. two reasons given against such page 109 An Increment what is thereby meant 138. whether stopt by an Highway 139. it is his whos 's the River is oâ his whos 's the Grounds are that bound it 138. it is his to whom the Land is granted if the Land be arcifinious ibid. if in doubts is the peoples ibid. whether it may belong to the Princes Vassal ibid. Indians many Wives 106. no Tribunals but for murder and injuries done page 211 Induciae whence page 558 Infants capable of Dominion 89. but not to dispose thereof without a Guardian ibid. so is he to inherit but not to dispose of it page 103 Infeudations 119. made by Kings without the peoples consent void with consent how gained ibid. Ingratitude of the Romans punished by M. Levinus with disfranchizement page 39 To Inhabit any Country free for Exiles page 85 Injuries faults mischances distinguished 500 on the one side makes War just on the other 70. what oblige to restitution what not page 531 Injure others we ought not to benefit our selves page 82 Injuries done us by our Country Prince Parents to be patiently born page 58 Injuries intended only sometimes punished page 383 Innocents to be defended page 425 426 The Innocent not to be destroyed with the Nocent page 504 The Innocent falshood of Joseph to his Brethren page 443 Instruments of the Plough not to be taken in pawn page 514 To Insult over the Vanquished ignoble page 506 507 Intent sometimes equally punished with the fact 381. though ill obligeth not to restitution page 383 Invaders Command how far obliging 62. in what Case he may be killed by a private man page 65 For the Interpretation of Promises and Contracts some Rules page 193 What Interpretations given to contracts between Enemies 558. if odious in their full propriety if ambiguous in the largest sense page 193 Interpretation of Leagues 190 sometimes gathered from the Context 191 192. if in doubt ought to favour the weakest page 548 Intestates Estate to whom naturally it descends page 122 Invasion made by Confederates or their Subjects whether it break the Peace 548. by Subjects when attributed to the Prince ibid. By Inundation the Owner may lose his Right page 137 Inundations and Increments thereby gained page 136 137 Josephus in expounding the Hebrew Law flatters the Romans page 466 To Judge of the Cause of a War between Princes dangerous page 457 The Judges Office in criminal Causes dangerous page 373 A Judge should be tenderly affected as a Father 416 417. may be punished his Sentence being unjust but not the Executioner 429. said to be just though the Sentence be unjust page 55 In Judgment the matter not the Persons to be considered page 3 4 To Judge of a mans meaning by his speech how due page 441 Judgment of zeal what page 445 Judgment contemplative and practical page 429 Judging of the Supreme Power Caâtions page 41 The Judgment how steered in doubtful Cases page 411 Against Judgment though erroneous nothing to be done ibid. Judgments Capital why by Christ permitted 372 373. Christians may execute them but not affectedly ibid. Jus and Justice how distinguish'd page 494 Just in War what page 2 Just taken strictly what page 414 Justice derived from Jove Pref. vi Justice and Valour usually attended by Victory xii Justice Expletive and Attributive page 4 Just Cause procures Friends xii Just Cause adds courage to Souldiers ibid. Justice Commutative or Expletive page 3 Justice how described by Porphyry v. preferred to fortitude x. it begets courage 430. it so gives to every one his own that it detracts not from the just Right of another 198. it should extend it self to all Mankind x Where Justice is not required the longest Sword takes all page 435 K. KEturah's Son by Abraham received Gifts or Portions but no Inheritances page 125 He that Kills an Enemy in the War is guiltless page 357 To Kill a man for slight injuries is againast Charity 73. in defence of our Goods naturally not unlawful page 74 To Kill a private man is murder but thousands in an unjust War Valour and Vertue page 70 To Kill a Nocturnal Thief whether tolerated only by the Civil Law or approved 75 76. an incorrigible Malefactor not against the Law of Nature page 368 To Kill an Enemy after Battel against Charity page 506 To Kill an Enemy privately in his own Quarters whether lawful page 462 To be Killed none for his valour in defence of his own cause if good page 568 To Kill all that have offended brutish page 501 Who may be justly Killed in a just War according to Justice internal page 498 Kings Grants when revocable and when not 180. their Contracts do not always bind their Successors page 178 179 Kings how they serve God as Kings page 17 18 Kings whether bound by prescription see Prescription Kings that make Laws not subject to Laws 377. not all constituted by the People 40. not bound by their own Laws directly 101. in name some not in power 39. whether he may renounce his Kingdom so as his Son shall not inherit page 131 Kings raised by providence fit for the times and People 41. they have no superiour but God 40. their vices must be born with patience ibid. to revile them is wicked but to kill them though wicked horrid page 39 A Kings person to be spared in cases of absolute necessity page 66 Kings regard honour more than power yet doth not this abate of their Right 54. their private Acts subject to the Laws page 177 Against Kings the Law that makes void any private mans Acts by way of Punishment is void ibid. Kings Promises Contracts and Oaths page 176 A Kings word as firm as an Oath page 175 A King may null his own Oath as private men antecedenter not consequenter 177. whether he may revoke his own acts which he doth as a King page 176 Kings defended by severe Laws page 61 By the Contract of a King how the Heir may be bound page 178 How a King may be bound to his Subjects naturally and how civilly page 177 Kings bound by their own Laws as a member not as the body
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseât 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
sorts of Murtherers page 196 197 Laws guide to wisdom Pref. ix Laws may so far proceed against a King as to evidence the Right of the Creditor but not to compel him page 177 178 Contrary to Law things done not nulled unâess so exprest by the Law it self page 147 Laws bind not in cases of extreme necessity page 567 Laws made to avoid greater mischiefs only must not be so understood as to make that sinful which is otherwise lawful page 483 Laws without a coercive power externally weak Pref. ix Laws and Arms opposed Pref. ii The six Laws given to Adam what page 8 There is the same Law where is the same reason or equity page 196 Humane Laws to be interpreted with some allowance for humane frailty page 59 The Law in prohibiting doubles the offence 380. of Moses erroneously quoted for that of Nature Pref. xviii Without Laws no community can consist Pref. ix Laws humane depend upon the will of the maker for their institution and continuation page 21 22 Laws may bind as to humane judgment that bind not the Conscience 483. nor bind longer than the coercive power lasts ibid. severe in the defence of Kings page 61 Laws commanding stronger than those that permit and those that forbid stronger than those that command page 199 The reason of a Law particularly failing shall not exempt that case from the Law but it may be dispensed with page 35 Lawful taken either for that which is just and honest or for that which is not punishable page 456 The Law of Nations how beneficial Pref. ix it is like the Soul in the Body page 451 Humane Laws depend upon the will of the Lawmaker both for their institution and continuation page 377 A League what 181. when said to be renewed 187. void if by either broken ibid. Of Leagues the Ancienter to be prefer'd ibid. that made with a Free people real ibid. that with a King not always personal ibid. A League holds with a People or a lawful King though exil'd his Kingdom but not with an Vsurper page 195 League equal or unequal page 183 Leagues how they differ from Sponsions ibid. Leagues unequal 48 183 184. give no jurisdiction properly page 49 In unequal Leagues Kings or People may be equal in freedom though not in dignity ibid. In Leagues who are superiour page 49 50 Leagues some require exact natural Right only and why 182. its breach is a matter odious page 193 The Prince of the Leagues may be said in some things to command page 49 50 In Leaugues unequal the danger whence page 51 Leagues unequal contracted sometimes where no War is 184. whether to be made with men of different Religion ibid. this proved by experience 185 186. some cautions page 186 Leagues forbidden to be made with some Nations and why page 184 Of Leagues some favourable some odious some personal some real page 195 Leagues of Peace and society these either for Commerce or War page 182 183 Whether they that are unequally Leagued have the Right of Embassages page 206 Leagues divided page 182 A League for a set time not by silence renewed page 187 No League binds to an unjust War page 186 No breach of League to defend the injured Party if in other things the Peace be kept page 194 Leagues never made but between Soveraign Princes page 181 Leagues of Joshua with the Gibeonites 169 he might not make a League with the Canaanites and why page 184 In Leagues words of Art interpreted according to Art 191. the stronger gives the greater power the weaker the greater honour 49 50. this Article not to make War without consent is to be understood of an offensive War only page 194 A League made with a Free People is real and binds though they admit of Kings unless made with other Free Cities to defend their liberty page 195 The Lenity of the Ancient Fathers towards them that erred in things Divine page 391 Letter of Marque page 448 Liberty personal recovered by Postliminy 489. or Peace which to be prefer'd page 419 The Liberty of a People what it signifies 42 43 c. of making War not rashly to be believed to be renounced page 193 The Liberty of Subjects obliged by the fact of their Superiours page 447 Liberty natural is to live where we list page 115 Liberty the usual Cloak of Ambition page 65 Liberty lost to recover no just cause of War page 407 Liberty some left the Conquered may secure the Conquerour page 527 Life prefer'd before Liberty page 419 The Lesser number to yield to the greater not natural page 139 Long possession see Possession Lots sometimes end a War page 551 Love of Parents toward their Children more natural than that of Children towards Parents page 123 A Lye strictly taken what 440. forbidden 439. by some good Authors in some cases approved 440. a wholesome lye the jocular and charitable not much blamed page 442 443 The form of a Lye what 441. whether naturally unlawful ibid. To Lye and to tell a lye differenced by Gellius page 440 Lyes our refuge in danger Rahabs lye page 443 No Lye if by an untruth spoken by me a By-stander be deceived page 442 Of Lyes the Schoolmen admit not but they do of Equivocations page 443 444 A Lye to preserve life whether lawful page 443 To Lye to an Enemy lawful 439 443. to be understood of words assertory not promissory 443 444. yet not if bound by Oath ibid From Lying to abstain even to an Enemy magnanimous page 444 Lying to be excluded in all Contracts in a Market page 441 To Lye in time and place fitting the part of Stoical wisdom page 440 Lying ill becomes a Prince 444. fear and poverty make Lyars ibid. For Lying and Perjury the punishment the same page 175 It is no Lye if in an Amphibology our words agree with either sence though misunderstood page 440 M. MAccabees resistance what page 60 Macedonians put all that are of kin to Traitors to death page 403 Magistrates should punish Offenders as Parents do Children page 417 Magistrates killing men are innocent but private men doing the same are Murtherers 374. whether they may remit punishments 375. Inferiours must not resist the Supreme 58. why chosen 376. they must judge according to Law but Princes the Laws themselves page 377 No Magistrate chosen without an Appeal to the People of Rome page 65 Magistrates Inferiour may reduce Rebels in a Case of imminent danger page 35 Magistrates Christians in St. Paul's time page 18 Magistrates amongst the Jews did not resist their Kings though wicked 57. in what Cases obliged to reparation of damages 203. how far they may oblige Citizens page 564 Magistrates not taking caution from Privateers whether obliged for the wrongs they do to their friends page 203 The Magnanimity of the Romans in respect of the Greeks page 445 Mahometans hold a necessity of restitution page 495 Majesty taken for the Dignity of the Person governing 49. what that
be understood as he understands to whom they are made 167. called Vows and why 172. the end of all controversies 172. bind not to things unlawful 169. of Joshua to the Gibeonites binding page 168 169 The Oath of the Roman Souldiers to the Carthaginians binding page 167 168 An Oath not to be too far wrested 169. not to do good not binding 170. nor that which hinders a greater good ibid. cannot bind to impossibilities ibid. by false Gods binding 171. by the Creatures obligeth ibid. by fraud or fear extorted must be fulfilled for the Oaths sake 172. made to Pyrates or Tyrants obligeth ibid. In Oaths two things requisite truth in words and fidelity in Actions ibid. Over Subjects Oaths what power Superiours have page 173 By a false Oath to deceive an Enemy Perjury page 172 Of Oaths some are assertory and some promissory 174. the latter forbidden by James and Christ ibid. Oaths should except necessity and coaction page 123 From Oaths Absolutions from whence originally page 174 By Oaths promises made in what Cases oblige not page 173 An honest mans word as good as his Oath page 175 An Oath to perform Kings bound before God page 177 Oaths from Subjects should have this restriction Vnless my King command the contrary ibid. Philip of Macedon regardless of Oaths page 537 The form of Oath Military page 28 To Obey more natural to some Nations than to command page 38 Obedience in what cases necessary 55 56 429. sometimes unlawful 427. especially in things forbidden by God or Nature 53. to commands unjust not due 429. readily yielded by him that understands the reason of the Law page 430 Obedience to Parents and sustentation to Children due 123. yet it cannot justify our disobedience to God page 427 Obligation restraining the faculty or the exercise of such an Act only the difference page 47 48 Obligation feudal see Feudal Obligations arising from Dominion page 146 Obligation internal gives no Right to another page 151 Obligations all require deliberation page 551 552 Obligations by Officers with our default from what Law it proceeds page 203 204 Kings may be obliged either naturally or civilly page 177 Obliged we may be by another page 154 Oblige we may whatsoever we have absolute power in or over page 400 401 Obliged we may be to a Pirate or Robber being not terrâfyed by fear page 538 Obliged a man may be by some Delinquency page 200 Obliged none can be to an unjust War page 187 Of Obligations without compulsion examples page 211 Obstinacy to defend our own Party no just cause to kill an Enemy page 508 By the Occasion of anothers sin a man may suffer though that sin be not the cause of his suffering page 401 Occupancy its Rights where things are in common page 78 By Occupancy what every one had was the first rise of propriety page 79 Of Occupancy after the communion was lost page 80 Occupancy presumeth things bounded 81. as Lands by Mannors or Farms ibid. of Empire and of Dominion as distinguished from Empire 88. it was the original way to gain Dominion by the Law of Nations page 135 What if it be of a place pre Occupied by men irrational page 407 The Occupant in doubtful Cases hath the best Title page 414 To the ancient Occupants Lands restored by the Emperour Honorius after three hundred Years page 492 Odious Promises which 192. how to be interpreted ibid. Leagues and Promises if in doubt are personal page 194 Offenders being demanded when to be delivered page 395 396 ãâã ãâã ãâã ãâã ãâã 439. ãâã ãâã ãâã ãâã ãâã page 407 Old men in War to be spared page 505 None the same Old as young page 141 Opinions concerning God being not easily demonstrable no cause of War page 389 Our Opinions especially concerning Religion hardly parted from page 391 Oppression notorious a just cause of War if without danger to our selves page 424 Oppression of Subjects where greater than the miseries of War War may be made against Tyrants page 421 Ordinance of God in what sense Kingly Power is said page 18 Order what among Equals or Associates page 114 The Order of such as have equal shares in things ibid. In what Order they are bound to restore who have occasioned damages page 201 202 The Order of Christian Kings sitting in Council page 114 Original acquisition page 88 Owner right not known none bound to restore page 149 The right Owner transferring his Interest is a sure Title page 151 Oxen forbidden to be eaten to be spared in War page 514 P. PApinianus put to death for not defending Parricide page 428 Parents to be nourished 123. though severe to be obeyed 57. to be reverenced as Gods Pref. vii honour and obedience due to them 123. differing in their Commands whether to obey 103. their Right to sell or pawn their Children what 104. their Right over their Children different according to their several Ages and Conditions 103 104 their Estates due to their Children by a twofold right 124. whether they owe any part of their goods to their Children by the Law of Nature 122. their love to their Children more natural than their Childrens to them 123. their power to punish as well as to govern their Children 104. never exheredate their Children until they prove incorrigible 416 417. Their Marriage with their Children unnatural page 107 Parliaments to what end called page 42 A Parly demanded and accepted renders both sides secure 569. during each may promote his own interest so that he hurt not the other ibid. under pretence of a Parly Bituitus was treacherously taken Captive by the Romans ibid. Parricides page 28 Particulars if they consent not not punishable for the whole page 399 Partition just where the Title is dubious and neither possest page 414 Passage denied may be by Armes forced page 83 Passage by Land or Sea common to all ibid. how Armies may pass safely without danger page 84 Passionate acts more pardonable than deliberate page 380 Pater Patratus what page 546 Patience commended by Christ's example 63. preferred before revenge 33. in bearing reproaches 21 22 23. in a Governour or in a State punishable page 393 Patrimony distinguisht from the profit of it page 120 Paul refused not a Guard of Souldiers page 20 Parents that receiveth to what bound page 160 Peace profitable to the Victor Vanquished and those of equal Power 572. once obtained to be religiously kept 571. its Articles how to be understood 546 547. all of them to be equally observed 549 572. when said to be broken 548. to be embraced though with loss 572. not to be patcht up but firmly made 547. being made all publick injuries though then unknown presumed to be remitted 547. to purchase from an Enemy too Potent no dishonour page 418 For Peace whether the Goods of the Crown be alienable 544. or the Goods of Subjects 545. the Empire or any part thereof ibid. Peace by whom it may be made 544. being made by
Plutarch reciting that Saying of King Pyrrhus That he would leave his Kingdom to that Son who had the sharpest Sword saith That it was so said only to excite them to enrich his House with Blood and Rapine Whereupon he breaks out into this exclamation Adeo insociabile ferinumque est propositum plus suo habendi So wild and unsociable a thing is Covetousness Aristotle seems exceedingly to blame them who though they are not willing to admit of any King or Governor over themselves but him that hath the true Right yet regard neither Right nor Wrong in the Government of Foreigners The Lacedaemonians saith Plutarch place the greatest part of Honesty in their Country's profit Jus aliud nec norunt Plut. Agâs nec discunt quam unde Spartam putant posse augeri They will neither know or learn any other Law than how to enlarge their Territories The like Character do the Athenians give of them in Thucydides That among themselves and to their own Civil Laws The Lacedaemonians prefer publick profit before honesty they were very just but as to Strangers they esteemed exery thing honest that was pleasant and every thing just that was profitable But yet when one of the Spartan Kings pronounced that Common-wealth happy Which Pompey reproves which was bounded by the Sword and the Spear Pompey correcting him said Yea rather that Common-wealth is truly happy that is on every side bounded with Justice For which he might also have produced the Authority of another Spartan King who preferred Justice even before Military Prowess Upon this very ground because all Martial Power ought to be regulated by Justice for in case all men were just there would be no need of valour Justice preferred before fortitude Even Fortitude it self is by the Stoicks thus defined to be Valour contending for Justice When Agesilaus in Plutarch heard the Persian King stiled Great He demanded Quomodo me major nisi sit justior How is he greater than my self unless he be more just Themistius in his Oration that he made to the Emperor Valens elegantly discoursing how Kings should be qualified And to be extended to all Nations if Wisdom were to chuse them saith Not such as should think themselves entrusted with the care of one single Nation only but of all mankind neither should he profess himself to be a Friend to the Macedonians only or to the Romans but to all Men and all Nations whatsoever As M. Antoninus sometimes said of himself Civitas Patria mihi est ut Antonino Roma ut Homini Mundus As I am Antoninus De non esu Animal l. 3. Rome is my Country as I am a Man the World So also Porphyry He that is guided by reason carries himself inoffensively towards his own Subjects yea and towards Strangers yea and towards all men See Cyril against Julian l. 6. Quanto ratione praestans tanto Divinior The more he partakes of Reason the more he partakes of the Divine Nature The very Name of Minos was odious to Posterity for no other reason but because he extended his Justice no farther than his Dominions Each Country groaned under Minos Yoke That even in War some Laws are in force Now what some have fansied namely That Inter Arma cessant Leges In War all Laws lye asleep is so far from truth that no War ought to be undertaken but for the prosecution of a mans Right nor any that is undertaken managed beyond the bounds of Justice and Faithfulness It was very well said of Demosthenes That War might justly be made against those who cannot be compelled to do us right in a judicial way Now against such as are sensible of their own weakness Judgments are forceable enough and so no need of War But against such as are or think themselves of equal strength if they will not do right War may be justly undertaken which also that they may be altogether righteous must be managed with as much Conscience as judgments are usually passed Admit then that Laws may sleep in the midst of Wars yet they must be those only that are Civil and Judicial But such only as are Civil and Judiciaâ such I mean as are proper to peace but not such as are perpetual and fitted unto all times It was very well said therefore by Dion Prusaeensis That written Laws are of no force amongst Enemies but such as are unwritten That is Such as Nature her self dictates or the consent of Nations constitutes are in force even in the midst of Arms. There are Laws in the midst of Arms. When one asked King Alphonsus Whether he thought himself most indebted to Books or Arms he readily answered That he was beholding to his Books both for the knowledg of his Arms and also for his knowledge of the Laws of Arms. So also Plutarch Sunt apud bonos viros quaedam belli jura Amongst good men there are some Laws to be observed even in War Neither are we so to prosecute Victory as to enrich our selves by base and dishonest gain Eas res puro pioque duello quaerendas censeo This appears by that ancient form of the Romans These things I judge ought to be acquired by a just and pious War These very ancient Romans as Varro notes were very slow in making War and not very licentious when they did make it because they approved of no War but what was pious Camillus was wont to say That War was to be waged with no less Justice than Valour The like Testimony doth Scipio the African give of the People of Rome in his time namely that they always began and finished their Wars justly And another Author tells us That there are Laws for War as well as for Peace A third admires Fabritius for a gallant Soldier but principally for that which in War was very rarely found namely his Innocence as believing that some things usually done against an Enemy were impious What great power and efficacy the justness of a Cause hath Historians do every where declare The goodness of a Cause is of great efficacy in war Proverbial Sayings whilst they ofttimes ascribe the Victory to this as to its principal cause From whence arise these Proverbial Sayings The Courage of Soldiers do either rise or fall according to the equity of their Cause He seldom returns in safety that willingly engageth himself in an unjust War A good Cause is never unattended with hopes Thus Pompey in Appian cheers up the Spirits of his Soldiers We saith he must place all our confidence in the Gods and in the goodness of our Cause as having entred into this War upon honest and just grounds for the defence of the Common-wealth Thus likewise doth Cassius encourage his Soldiers by telling them That the greatest hopes were always where there was the best Cause The like we may read in Josephus Antiq. hist lib. 15. Abs quo stat Jus ab eo
Deus Where the Right is not God is not Many such like sayings we find in Procopius As that of Belisarius upon his expedition into Africk where he tells his Army That Valour never gets the Victory unless accompanied with Justice And in another Speech of his before the Battel fought near Carthage We appeal saith he to God for witness the smallest Atome of whose Power is able to over-ballance all humane strength He as we believe weighing Justly the Causes of the War will give successes to this Battel that are due to both Parties The truth of which saying the Admirable Event of that Fight did presently after undoubtedly prove Thus likewise Totilas bespeaks his Goths It cannot be saith he it cannot possibly be I say that they that use Violence and Injustice should gain Honour in Battel Sed prout vita cuique est Lib. 2. ita ei obtingit belli fortuna But according to every mans Life so is his fortune in the War It was therefore well advised by Agathias Injustice and the Contempt of God is at all times to be abhorred as dangerous but then most when the Fortune of the War is to be determined by a Battel The good success of wicked designs should not discourage us Neither should any man be discouraged by reason of the prosperous successes of some wicked designs For it suffices That the righteousness of the Cause hath a very great efficacy to excite Valour and stir up to Action although that Power as it often falls out in humane affairs be sometimes hindered and frustrated in its effects by the intervention or opposition of some other Causes Besides the Opinion that men have that the War is neither rashly begun nor unjustly managed is very prevalent to contract Friendship whereby as private men so Nations and Kingdoms reap infinite advantages For no man will willingly associate himself with those The Justice of our Cause sometimes begets friends who have no regard to Justice to Piety to Fidelity Now upon the Reasons above recited concluding with my self that there was a certain Law common among Nations guiding them as well to as in the Wars The Authors motives to undertake this work I had many and those very weighty motives that induced me to compile this Treatise of it For I very well saw throughout the Christian World so great a licence of making War and of running into Arms upon every light cause and sometimes upon none at all that even the Barbarians would have been ashamed to have owned it 1. A general licence in making War And also that Arms being once taken up there was no reverence at all had to Laws either Divine or Humane but just as if some Fury had been sent out to kill and destroy and in managing it without restraint so War being begun a general licence was granted to work all manner of Mischief whatsoever The consideration of which barbarous Cruelty gave occasion to many men not evil to teach That it is not lawful for a Christian whose Religion principally consists in promoting Love and Charity amongst all men to take Arms With whom Ferus and our Countrey-man Erasmus seem sometimes to accord both of them being great Lovers of Peace Erasmus Jo. Ferus Ecclesiastical and Civil But as I suppose with that intent only as we usually have when we bend a stick in it self crooked so far to the other side as may probably upon its return make it straight But this very design of too much contradiction is so far from doing good that it doth much hurt because that we may easily perceive that their urging of these things too far doth detract from their Authority in other things though haply true We ought therefore to moderate between these two as well that all things may not be admitted to be lawful in War as that nothing Moreover another design I had namely 2. Motive To promote learning especially in the Laws that being unworthily banished mine own Countrey which with so many of my Labours I have honour'd I might promote now by my private Studies the knowledge of the Laws which heretofore I practised in publick Offices with as much Integrity as I possibly could Many have endeavoured heretofore to reduce this into the form of an Art but none as yet have done it Neither indeed can it be done unless what no man hath yet taken sufficient care of those Laws which are established by Humane Authority be rightly separated from those that are Natural For the Laws of Nature being alwayes the same may easily be collected into an Art But those that arise by Constitution seeing that they are both often changed and are also diverse in diverse Nations are put without Art as the Collections of such things as are singular But if the Doctors of true Justice would but undertake to treat of the parts of Natural and Perpetual Jurisprudence setting aside what hath its rise from the Freedom of the Will so that one would treat of Laws another of Tributes another of the Office of a Judge another of the Conjecture of Wills and another of the proofs of Matters of Fact Then by a Collection of all these parts a Body may be composed But what Method we thought fit to use The Author's Method we have shewed rather in deeds than words in this Treatise which contains that part of Jurisprudence which is by far the most Noble For in the first Book The Subject of the First Book having discovered the Original of Right we have handled this General Question Whether there be any War that is Lawful And next to the end that the difference between a publick and private War may be the more easily discovered we thought fit to explain the Just Rights of the Supream Power what People may have it and what Kings and which of these have it either fully or in part only And again which of them may have it with a Power of Alienation and which otherwise And then we were to speak of the Duty of Subjects towards their Lawful Prince or to their Superiours Our second Book Of the Second undertaking to expound all the Causes from whence a War may arise shews at large what things are common and what private what Right persons may have over persons what obligation ariseth from Dominion by what Rule Kingly succession is guided what Right ariseth from Covenants and Contracts what Interpretation is to be made of Leagues what Force and what Interpretation is to be made of Oaths both publick and private what may be due for damages done what Sanctimony is due to Embassadors what Right to bury the dead and what the nature of punishments are and the like Our third Book treating of that which is in War lawful Of the Third and having distinguished between that which is not punishable or that which among foreign Nations is defended as lawful and between that which is altogether blameless descends
Ver. 5 6 The blood of your lives will I require p 14 Gen. Ch. 14 Ver. 16 Brought back all those things p 529 Gen. Ver. 20 Tithes of all ibid. Gen. Ver. 21 Give me the persons and take the goods ibid. Gen. Ch. 18 Ver. 23 Destroy the righteous with the wicked p 435 Gen. Ch. 20 Ver. 12 Abraham of Sara she is my Sister p 438 Gen. Ch. 25 Ver. 6 Children by Concubines what portion p 125 Gen. Ch. 31 Ver. 20 26 27 Steal away the Heart p 441 Gen. Ch. 34 Ver. 30 Ye have made to stink p 468 Gen. Ch. 38 Ver. 24 Bring her forth and let her be burnt p 15 Gen. Ver. 20 Sent her the Kid which he had promised p 154 Gen. Ch. 48 Ver. 22 Which I took with my Sword p 468 Gen. Ch. 49 Ver. 6 In their anger they slew a man ibid. Exodus Exod. Ch. 7 Ver. 5 Idols to be abolished and why p 466 Exod. Ch. 12 Ver. 23 City set up strange Gods p 389 Exod. Ch. 13 Ver. 16 A Prince or Prophet seduce others ibid. Exod. Ch. 17 Ver. 14 God approves Abrahams War with Ameleck p 13 Exod. Ch. 20 Ver. 2 The four first Commandments explained p 387 Exod. Ver. 17 Thou shalt not Covet p 383 Exod. Ch. 21 Ver. 14 Sanctuary for the unfortunate p 397 Exod. Ver. 26 Liberty due for an Eye or a Tooth p 521 Exod. Ch. 22 Ver. 1 9 Sheep or Oxen stolen restore five-fold or double p 381 Exod. Ver. 2 The Night Thief may be killed p 32 Exod. Ver. 28 Nor curse the ruler of thy people p 60 Exod. Ch. 23 Ver. 3 Regard the poor in Judgement p 4 Leviticus Levit. Ch. 18 The degrees of affinity p 109 Levit. Ch. 19 Ver. 18 Love thy Neighbour as thy self p 17 Levit. Ver. 15 Regard the poor in Judgement p 4 Levit. Ch. 21 Ver. 7 Priests not marry a divorced woman p 105 Levit. Ch. 24 Ver. 20 Eye for Eye Tooth for Tooth p 370 371 Numbers Numb Ch. 14 Ver. 30 Gods Oath to Joshua p 168 Numb Ch. 20 Ver. 21 Innocent passage denyed p 83 Numb Ch. 25 Ver. 4 Hanged on a Tree p 217 Deuteronomy Deut. Ch. 8 Ver. 21. The Right of Kings p 54 Deut. Ch. 15 Ver. 13 Thou shalt not let him go empty handed p 523 Deut. Ch. 17 Ver. 7 The hands of the witnesses shall be first p 431 Deut. Ch. 19 Ver. 19 Do unto him as he thought to have done unto his brother p 381 Deut. Ch. 20 Ver. 10 Comest to a City proclaim Peace p 13 Deut. Ver. 19 Thou shalt not destroy the Trees p 460 Deut. Ch. 22 Ver. 1 Thou shalt not see thy Brothers Ox go astray p 184 Deut. Ver. 26 The Ravisher shall dye but not the Damsel p 501 Deut. Ch. 23 Ver. 6 Thou shall not seek their Peace p 185 Joshua Joshua Ch. 8 Ver. 15 His feigned flight p 439 Joshua Ch. 9 Ver. 15 His Oath to the Gibeonites p 168 Judges Judges Ch. 3 Ver. 15 Ehud's Fact p 66 1 Samuel 1 Sam. Ch. 8 Ver. 2 The Right of Kings p 54 1 Sam. Ch. 10 Ver. 5 10 Priests to be spared p 506 1 Sam. Ch. 11 Ver. 10 To morrow we will come out to you p 443 1 Sam. Ch. 15 Ver. 30 The duty of the Peers to a wicked King p 59 1 Sam. Ch. 19 Ver. 16 Michal's Image p 438 1 Sam. Ch. 22 Ver. 2 David's Guards p 60 1 Sam. Ver. 17 Saul's Servants would not fall upon the Priests p 431 1 Sam. Ch. 25 Ver. 33 David spareth Nabal whom he sware to kill p 170 1 Sam. Ch. 26 Ver. 9 None innocent that stretch out their hand against p 60 1 Sam. Ch. 31 Ver. 4 Saul's Death and Repentance p 219 2 Samuel 2 Sam. Ch. 24 Ver. 17 The people punished for their King p 41 2 Kings 2 King Ch. 3 Ver. 19 Fell every good Tree p 513 2 King Ch. 6 Ver. 19 Elisha's Lye p 443 2 King Ver. 22 Captives to be spared p 507 2 King Ch. 8 Ver. 10 Thou mayst recover but shalt surely dye p 443 2 King Ch. 16 Ver. 12 Asa reproved for his League and why p 185 2 King Ch. 18 Rabshekah though an Embassadour not admitted and why p 207 2 King Ver. 7 14 His satisfaction for breaking his League p 77 1 Chronicles 1 Chron. Ch. 26 Ver. 32 Judges in the affairs of God and the King p 47 2 Chronicles 2 Chron. Ch. 16 Ver. 27 Ahaziah forsook God p 185 2 Chron. Ch. 19 Ver. 2 Jehoshaphat's League with Ahab p 185 2 Chron. Ver. 6 8 Judge not for man but God p 47 2 Chron. Ch. 25 Ver. 7 Let not the Army of Israel go with thee p 185 Job Job Ch. 31 Ver. 26 27 Worship the Sun and Moon p 389 Psalms Psal Ch. 2 Ver. 10 11 Be wise O Kings serve the Lord with fear p 17 Psal Ch. 15 Ver. 4 Having sworn to his own hurt p 173 Psal Ch. 19 Ver. 8 The Law is holy and just p 10 Psal Ch. 51 Ver. 4 Against thee only have I sinned p 47 Proverbs Prov. Ch. 1 Ver. 26 God punisheth in Revenge p 364 Prov. Ch. 16 Ver. 4 The wicked for himself ibid. Eclesiasticus Eccles Ch. 12 Ver. 7 Dust to Earth p 214 Isaiah Isaiah Ch. 1 Ver. 24 Ah I will ease me p 364 Isaiah Ch. 2 Ver. 4 Swords into Plough-shares p 20 Isaiah Ch. 58 Ver. 5 6 Restitution p 495 Jeremiah Jer. Ch. 25 Ver. 12 God judgeth Kings p 40 Jer. Ch. 38 Ver. 5 He is in your power p 48 Jer. Ver. 26 The truth concealed p 4â8 Ezechiel Ezech. Ch. 17 Ver. 12 13 14 Kings of Israel reproved for not keeping their faith with the King of Babylon Matthew Mat. Ch. 3 Ver. 2 Repent for the Kingdom p 18 Mat. Ch. 4 Ver. 17 The Kingdom of Heaven ibid. Mat. Ch. 5 Ver. 17 Destroy the Law but p 19 Mat. Ver. 21 Ye have heard it said to them p 16 Mat. Ver. 34 Swear not at all p 174 Mat. Ver. 38 Eye for Eye p 21 Mat. Ver. 39 Resist not evil p 21 32 33 Mat. Ver. 40 Sue thee ibid. Mat. Ver. 41 Go a mile ibid. Mat. Ver. 44 Do good to all p 370 Mat. Ver. 45 Causeth the Sun to shine p 186 Mat. Ch. 6 Ver. 14 15 Forgive all men p 371 Mat. Ver. 33 Seek ye first the Kingdom p 186 Mat. Ch. 7 Ver. 1 Judge not p 373 Mat. Ch. 10 Ver. 39 Loseth his life p 63 Mat. Ch. 11 Ver. 12 13 Kingdom suffers violence the Law continues till John p 18 Mat. Ch. 13 Ver. 29 Suffer the Tares p 434 Mat. Ch. 15 Ver. 5 Corban p 170 171 Mat. Ch. 22 Ver. 20 Tribute to Caesar p 66 214 215 Mat. Ch. 23 Ver. 21 Sweareth by the Temple p 170 Mat. Ch. 26 Ver. 52 Put up thy Sword p 32 Mat. They that take the Sword shall perish by the p 34 Mat. Ch. 24 Ver. 51 Hypocrites p 174 Mat. Ch. 26 Ver. 25 Twelve Thrones p 441
his time and those sayings that are there rehearsed as spoken to them of old were meant as spoken by Moses himself not by the Lawyers either in the same words Exod. 20.13 Lâvit 20.21 Exod. 20.14 Deut. 24.1 Exod. 20. â Lev. 24.20.19.18 Exod. 34.2 Deut. 7.1 Exod. 27.19 or to that sense as Thou shalt not kill whosoever killeth shall be in danger of judgment Thou shalt not commit adultery whosoever shall put away his Wife let him give her a Writing of Divorcement Thou shalt not forswear thy self thou shalt perform unto the Lord thine oaths An eye for an eye and a tooth for a tooth that is thou mayst exact this in judgment so thou shalt love thy Neighbour that is an Israelite and hate thine enemy that is those seven Nations with whom they were forbidden to contract friendship or to whom they ought to shew no mercy unto whom we may add the Amalekites with whom they were bound to have a perpetual war Deut. 25.19 Now the better to understand the words of Christ we must necessarily understand that the Law given by Moses will admit of a twofold construction either in such a sense A twofold sence of Moses his Law Carnal as is common with all humane Laws namely as it restrains men from gross sins by the fear of publick punishments Heb. 2.2 And so it was given by Moses to restrain the Hebrews in the state of a Civil Government Heb. 7.16 Where it is called the Law of a carnal Commandment as it is also in another place called the Law of Works Rom. 3.27 Rom. 3.27 Or it is taken in a sense more proper to a Divine Law namely as it requires also the purity of the mind and such duties the omission whereof no humane Laws do punish In which sense it is called a spiritual Law Rom. 7.14 Spiritual Comforting the soul Psal 19.9 which the Latins make the 18th The Pharisees and Lawyers contenting themselves with the Carnal part of the Law wholly neglected the spiritual as superfluous and therefore never instructed the people therein as not our own writers only but Josephus and many of their own Doctors do testifie against them But as to the spiritual part also we must know That those vertues which are required from us Christians were either commanded or commended unto the Hebrews also although not in that degree and Latitude as they are unto us which we have already proved For a more perfect and exact obedience is now required from us Supra ch â §. ult than was formerly from the Jews because the coming of Christ doth heighten our hopes by far more precious promises And the graces of his spirit which descended unto them but as a little dew upon the Herbs falls on us as showers on the Grass Chrysost de virg c. 44. Vnder the Law God did not bind us up to so great a measure of vertue as hââow doth under the Gospel then it was permitted to take some revenge for injuries done as to revile them that reviled us we might exact an eye for an eye a tooth for a tooth it was then permitted unto us to swear though not to for swear and to hate our enemies It was not as yet forbidden to be angry to put away a Wife that offended us or to marry another nay nor to have diverse at the same time Great was the Indulgence of the Old Law in these and the like cases But since the coming of Christ the way to heaven is made much straiter and narrower than before both by the addition of many new precepts not given in the old Law and also by straining up those that were so given to a much higher Key Christ therefore opposeth his own doctrine to the doctrine of the ancients in both these senses first because his own took not hold of the outward man only to restrain it by pure negatives as other Laws did but restrained the inward man also obliging to positive duties whose omission was not punishable by Moses his Law But also in the second place because it enjoyned spiritual duties in that heighth of degree that neither Moses nor any other Law-giver did ever reach whence it is plain that what Christ delivered was not a bare interpretation of Moses his Law as some would have it But yet that these things should be known is not only pertinent to the matter in hand but to many other purposes lest we should attribute greater authority to Moses his Law than indeed is fit or due unto it VII That it is not repugnant to the Gospel to make War Omitting such arguments as are less convincing the first and principal Testimony whereby it may easily be proved that all right of making War is not fully taken away by the Evangelical Law is that of St. Paul to Timothy I exhort you saith St. Paul that above all things Prayers and suplications Intercessions and giving of thanks be made for all men for Kings and such as are in authority 1 Tim. 2.1 2 3. that we may lead a quiet and peaceable life in all Godliness and honesty for this is good and acceptable in the sight of God our Saviour who would have all men to be saved and to come to the knowledge of the truth From whence these three things are to be learned first that it is acceptable unto God that Kings be made Christians Arg. 1 Secondly that being made so yet they cease not to be Kings Which Justin Martyr thus expresseth We pray saith he that Kings and Princes may together with their Regal Power retain a sound and perfect mind And this also in the third place we may learn that Christian Kings should use their utmost endeavours That other Christians may lead under them godly and Christian lives But you will happily say How Surely the same Apostle explains himself elsewhere thus He is the Minister of God for thy good and if thou do ill then fear The right of the Sword Non enim frustra gladium gerit For he beareth not the sword in vain for he is Gods Minister an avenger to execute wrath upon them that do evil Under the right of the Sword is comprehended all manner of restraining or coercive authority and so it is also sometimes understood by Lawyers yet so that the chief and principal part that is the true and proper use of the Sword is not excluded Psalm 2. The Second Psalm doth very much conduce to the understanding of this power which Psalm though verified of David yet was much fuller and clearer understood of Christ as we may collect out of Acts 4.25 and Acts 13.33 and out of Heb. 5.5 Now that Psalm exhorts all Kings to kiss the Son of God with reverence How Kings serve God as Kings that is to express themselves his servants as they are Kings for so St. Aug. rightly expounds that place whose very words as being pertinent to our purpose sound thus Herein saith he do
Kings serve God according to his command as Kings when they encourage vertue and depress vice not only in things appertaining to humane Society but in things appertaining also to the worship of God And so in another place How saith he do Kings serve the Lord in fear Ad Bonif. Ep. 50. unless it be in prohibiting and by a Religious austerity punishing all manner of impiety For to serve God as a man is one thing but to serve him as a King is another And a little after Herein do Kings serve God as Kings when in zeal to his service they do those things which none can do but Kings Arg. 2 The second Argument whereby we prove that all Wars are not unlawful is drawn from that place of St Paul before cited in the 13th to the Romans Rom. 13. where it is said That the highest powers and such are those of Kings are ordained of God and that power is therefore called Gods ordinance Kingly Government asserted by St. Paul From whence we inferr the necessity of our subjection together with that honour and reverence we owe unto them and that not so much out of fear regarding the power they have to hurt and punish as out of Conscience as it is Gods ordinance and out of a strong perswasion that in resisting it we resist God himself Now if the thing understood by the word Ordinance were only that which God permits and will not hinder as all actions that are vitious then would there follow no obligation of honour or obedience especially that extended to the Conscience and therefore the Apostles whole Argument would instantly fall to nothing whose main scope was to extol this Regal power which if wicked he could never do but by the same Argument he might as well have commended Theft and Robbery It must necessarily follow then that by this ordained power we understand such a power as God doth especially approve ãâã and then we may safely inferr That seeing that God cannot will things contrary to ââmself that this power is no ways repugnant to that will of God which is revealed in the Gospel and which obligeth all men to honour and obedience neither doth it at all weaken the force of this Argument That at that time when St. Paul wrote all Kings and Princes were strangers to the Christian Faith For in the first place this is not Universally true for even at that time Sergius Paulus being Propraetor of Cyprus had given up his name to Christ long before Acts. 13.12 Act. 13.12 Besides this dispute is not concerning persons whether pious or impious but concerning the Kingly function whether it be ordained of God or usurped by men which St. Paul seems here to determine plainly asserting That ordinance to be from God and thereupon concludes That it ought to be honoured and obeyed and that not outwardly only for fear but even in the inmost recesses of the mind where God alone doth properly reign Christianity then doth not abolish Soveraignty Nero and Agrippa though they had received this faith yet had still remained the one an Emperor the other a King which necessarily inferrs the power of the Sword For as under the Law the Sacrifices were reputed holy See Chrysost in locum supra citatum though offered by Hophni and Phineas Priests unholy so Pia res est imperium quamvis ab impio teneatur The Function is Sacreâ ãâã though the person be never so wicked Saul was anointed King as well as David Arg. 3 A Third Argument is drawn from the words of St. John the Baptist who being demanded by the Jewish Souldiers what they should do to flee from the Wrath to come did not command them presently to lay down their Arms and desert their calling though they fought then under the Roman Banners as in all probability they would have done had it been contrary to the Christian Law to make War but allowing their calling he only labours to reform the abuses of it exhorting them to abstain from acts of unlawful violence and from false accusing and to rest content with their wages Luk. 3.14 Luke 3.14 But here some object That there was so great a difference between the precepts of Christ and the prescriptions of the Baptist that the Baptist seems to preach one Doctrine and Christ another but this we cannot admit first because both of them declare the sum and substance of the Doctrine they intended to preach in the same words Repent for the Kingdom of Heaven is at hand so begins the Baptist Mat. 3.2 And so Christ Mat. 4.17 And Christ himself saith The Kingdom of Heaven that is the new Law for it is the manner of the Hebrews The Jews call their Law Kingdom to call their Law by the name of Kingdom began to suffer violence from the daies of John the Baptist Mat. 11.12 John is said to preach repentance for the remission of sins Mark 1.4 So did the Apostles in the name of Christ Acts 2.38 John required fruits worthy of repentance and threatens destruction to those that do not produce them Matth. 3.8 10. He requires also works of Charity beyond the Law Luke 3.11 The Law also is said to continue till the days of John that is until the new and more perfect Law should with him begin Mat. 11.13 And for this cause it is that John is said to be Prophetis major Greater than the Prophets Mat. 11.9 Luk. 7.26 and that he was sent to give knowledge of Salvation unto the people Luk. 2.77 and to preach the Gospel Acts 19.4 Joh. 1.29 Mat. 3.11 Mat. 1.8 Luk. 3.16 Luk. 2.18 Neither did John ever distinguish Jesus from himself by any difference that there was in their Doctrines but only thus that what John declared generally and confusedly was more distinctly delivered by Christ who was the true light but by this That Jesus was the Messias that was promised the King of an heavenly Kingdom who should give the power of the holy Ghost to those who should believe on him The Fourth Argument and which seems to me of no small force is this That if by the Arg. 4 Gospel alâ power were taken away from the Magistrate to execute capital punishments An Aâgument ââââr ââom ãâã conââouââ ãâã tâât âou â follâw together with that of the Sword to defend their Subjects from Thieves and Robbers how soon would the Christian world be over-run with Rapin and violence and what a Deluge of wickedness of all sorts would break in upon us That this must needs be the consequence we shall easily grant if we either remember what sad effeâts this remisness brought upon the old world or if we do but observe how hardly these sins of Rapin Cruelty and the like are restrained now even by capital punishments For the suppressing whereof Tribunals Laws and so many kinds and degrees of punishments are invented saith Chrysost in serm ad Patrem fidelem Wherefore if Christ
that is They that lay aside their Arms when there is no persecution that threatens them for by the word Peace the Primitive Christians understood only a vacancy from persecution as appears by Cyprian and others Nostrae paci quod est bellum quam persecutio As to the peace of the Church What greater War can there be than persecution Tertul. So St. Cyprian Cyprian when God began to give peace unto his Church That is when he freed it from Persecution Next we have the example of Julians Souldiers who were no mean proficients in the School of Christianity for they were ready to testifie their faith in Christ by the effusion of their blood of whom St. Ambrose speaks thus The Emperor Julian though an Apostate yet had many Christians that fought under his Banner to whom when command was given to march against the enemy in defence of their Country they readily obeyed But being commanded to march against the Christians then they acknowledged no Emperor but the King of Heaven Such also were long before them the Thebaean Legion which in the Reign of the Emperor Dioclesian was converted to the Christian Faith by Zabda the Thirtieth Bishop of Jerusalem which Legion did afterwards leave behind them a singular pattern to all future Generations of Christian patience and constancy whereof I shall have occasion to speak more at large hereafter It shall suffice in this place to rehearse that excellent speech they made to the Emperor which doth both solidly and summarily represent unto us the Duty of a Christian Souldier Against any Foreign Power we freely offer our hands which yet we dare not embrew in the blood of Innocents Our Arms which have been long practised in suppressing vice and in vanquishing Foes never yet knew how to oppress the Righteous or to cut the Throats of our Neighbours and fellow-Citizens When first we engaged in War we remember it was to protect and not to destroy them we have hitherto fought for Justice for Piety for the defence of Innocence For these prizes we have slighted all dangers we have fought for the defence of our faith which should we have broke with God How canst thou O Emperor expect that we should keep with thee Basil also gives this Testimony of thâ Primitive Christians That their Ancestors never accounted that execution that was done in War as Murther but alwaies held them excused that fought for the defence of Chastity and of Piety CHAP. III. War divided into Publick and private The Supream Power explained I. War divided into Publick and Private II. That by the Law of Nature even after Tribunals were erected all Private War was not unlawful proved III. No nor by the Evangelical Law The Objections answered IV. Publick War divided into that which is solemn and that which is less than solemn V. Whether a War made by the Authority of a Magistrate not having Supream Power be Publick and when VI. Wherein the Civil Power consists VII What Power is Supream VIII The opinion that the Supream Power is ever in the people refuted and the Arguments answered IX As also that the subjection between King and people is mutual X. Cautions for the right understanding of this Question whereof the first is to distinguish between the likeness of words in things that are unlike XI The second is to distinguish between the Right and the manner of holding that Right XII That some Empires are held fully that is with a Power to alienate them XIII That others are held not so fully XIV That some though not Supream yet are held fully that is with a Power to alienate them XV. The said distinction appears by the differences in assigning Protectors in Kingdoms XVI That the Power ceaseth not to be Supream by a promise even of that which is not due by the Laws of either Natural or Divine XVII The Soveraign power is sometimes divided into parts subjective and potential XVIII Yet it cannot be well concluded that the power is not Supream because Kings will not have their Acts to be firm unless approved of by some Assembly XIX Some other examples not to be drawn hither XX. True examples of the Supream Power divided XXI He that is tyed up by a League on terms unequal may yet retain the Supream Power XXII So may he that pays Tribute XXIII So may he that holds it from another in Fief XXIV A mans right may be distinguished from the exercise of that Right with several examples I. War divided THE first and most necessary division of War is this That some are Publick and some Private and some mixt Publick is that which is made by publick Authority and Private is that when the Authority is so and mixt when it is in part Publick and in part Private and First Let us treat of that which is Private as being most ancient That by the Law of Nature some Private War may lawfully be waged is as I suppose sufficiently proved by what hath been already said where it was shewed That to repel force with force was no ways repugnant to Natural equity But the Question will be Whethersince the erection of Courts of Justice it be now lawful to repel force with force Whereunto I answer That although Courts of Judicature were not instituted by Nature but by humane Authority yet doth natural reason and Common equity instruct us That it is more agreeable to common Honesty and to the conservation of peace and tranquillity amongst men that all differences should be publickly scanned and determined by persons that are unconcerned rather than by them who being blinded with self-love do oft-times mistake right for wrong and will do that only which seems good in their own eyes Non est singulis concedendum quod per magistratum publice possit fieri Paulus Juris cons ne occasio sit majoris tumultus faciendi That is not to be granted to every private man that may be done publickly by a Magistrate lest for every petty injury men run into Tumults And hence it is Cassiod l 4 Var. Ep. 4. saith King Theodorick That so great a reverence is due to the Law that no man ought to revenge himself with his own hand or by the suggestion of his own passions For if all differences may be determined by plan force wherein would a calm peace differ from the tumults of War And therefore the Laws call that Force When any man takes that which is his due with his own hands without the determination of a Judge II. That Tribunals being erected all war is not unlawful Most certain it is That the Licence which before Tribunals were established publickly was permitted is since much restrained And yet in some places the same Licence still remaineth namely where Judgment cannot be had against offenders For the Law in prohibiting a man to take his own unless it be judicially doth tacitely imply that it be in such a place and at such a time where an
or broken The second is The choice of fit Persons for Magistrates And the third is A power to determine all Controversies Dionysius Halicarnassensis makes the Civil Power to consist in these three things 1. The Creation of Magistrates 2. The Legislative Power And 3. The power of concluding either Peace or War And elsewhere he adds this fourth namely A power to determine all differences by passing definitive Sentences and by and by he adds The care of setling Religion and the power of calling Assemblies But he that would rightly divide this power so that nothing be either defective or redundant may do it thus He that rules in any Common-wealth doth it partly by himself and partly by others What he doth by himself concerns either Universals or Particulars what concerns Universals are the making of Laws or the abrogating of them and these are either sacred so far forth as concerns the Civil State or prophane This Aristotle calls the Art of building up a City Those singulars about which this power is conversant are either things directly Publick or Private yet such as are in order to Publick Those that are directly Publick are either Actions as Peace War Leagues or Things as Taxes Customs Tributes and such like Wherein also is comprehended that eminent Dominion that every Common-wealth hath over the Persons and Goods of its own Subjects so far as concerns the publick safety And this Art Aristotle terms by its general name Political that is Civil or the Art of Counselling and well Advising Or as I said they are things private namely things controverted between singular persons the determination whereof doth much conduce to publick peace and safety and this Art Aristotle terms judicial But those things which he dispatcheth by another he doth either by Magistrates or by Procurators among whom we are to place Embassadors and Envoyes And in these things do principally consist the Civil Power VII Power Supreme what it is That we call the Supreme Power whose Acts are not subject to the power of another nor can by any Humane Authority be made void when I say by another I exclude him who hath this Supreme Power in whose power it is to change his own Will so also I exclude his Successor who hath the same right and so the same power and no other This therefore is that which we call the Supreme Power In whom it is Now let us see in whom it rests the Subject wherein this Soveraign Power remains is either common or proper As the common Subject wherein Sight rests is the Body the proper Subject is the Eye so of this Supreme Power the common Subject is the City or Common-wealth which as I said before is a perfect company or society of men Hence then we exclude those who have given themselves up to the power of another people as those Nations that were conquered by the Romans were no longer called Kingdoms but Roman Provinces For such a people cannot be called a City in that sence wherein we now take the word but the unworthy Members of that City that conquered them as Servants are the meanest Members of a Family Again It sometimes happens that of divers people there is but one and the same head and yet every one of these people do constitute one perfect Society for it is not so in the Moral as it is in the Natural Body where it is not possible that one Head should govern two Bodies For in the Moral one and the same person diversly considered may be the head of divers and distinct Bodies whereof this is a most infallible sign for whensoever the Regal Family of him in whom the Soveraign power over divers Nations was united shall be extinct the power it self separates and each reverts to its own people So it may fall out that many Cities may be linkt in so strait a confederacy that as Strabo speaks they may constitute but one well governed Body and yet doth each of them still retain the state of a perfect City as is well observed both by others and also by Aristotle in divers places so then the common Subject wherein this power resides is a City so understood as I have already exprest But the proper Subject of this power is either one person or many according to the several Laws Customs and Manners of every Nation VIII Not in the people And here first we must disclaim their opinion who affirm the Supreme Power to be every where and without any exception in the People and that so fully that it is in their power either to inforce or to punish their King if he govern amiss What great mischiefs this opinion being once fixed in the minds of the Rabble already hath and hereafter may introduce there is no wise man but may easily discover This proved For confutation of which opinion we offer these Arguments to the more ingenious Reader By all the Laws both of the Hebrews and Romans it will appear Exod. 21.6 Gell. l. 21. c. 7. that it is lawful for every man that hath power over himself to bind himself as a Servant or an Apprentice to whom he pleaseth And why then should it not be as lawful for any people naturally free to give themselves up to any one person or Society to be governed wholly by them without retaining any part of their liberty to themselves Neither will it suffice to say this is not to be presumed for the question is not what in a doubtful case is to be presumed but what by Right may be done and it is as vain and frivolous to urge the inconveniences that may arise from hence No form of Government without some Inconvenience For there is no form of Government whatsoever be it never so well fansied and framed in the Brain but upon the exercise of it will produce some inconveniences and some dangers with it so that we must do what we can resolve to take the advice of the Comedian Aut haec cum illis sunt habenda aut illa cum his mittenda sunt either to accept of the inconveniences with the conveniences or to renounce both and so live like Beasts without Government which is the greatest inconvenience of all As there are several kinds of Trades or Callings for men to live by some better some worse and every man is permitted to chuse which he pleaseth so there being several sorts of Government it is in the peoples choice which of them they will be governed by Neither is the right to Govern to be measured by the excellency of the Form whereof divers men judge diversly but by the freedom of their own will What Cato sometimes said of Laws may as well be said of Governments There are none so perfect but have some defects But what the same Cato observed is very true It is sufficient to commend any Government that it produceth good effects in the general and profiteth the greater part of mankind Now as
Cicero speaks De leg 3. To reckon up all the inconveniences only in any Government and to pass over with silence all the conveniences is unjust because the good that we seek for we cannot obtain without the evil which we would avoid But of these several kinds of Government our choice being made and the right thereby transferred to another to reassume it at our pleasure upon what pretence soever is unjust Many causes there may be for which a people may be induced to renounce and yield up unto others all right of Government As namely Many reasons there may be why a people may yield up themselves to be Governed by another when they shall be reduced into so great danger of their Lives that no other way can be found whereby to defend themselves or when they shall be opprest with so much want as that they cannot otherwise sustain themselves Thus the Israelites being distrest by the Ammonites sent for Jephtha and rather then be opprest by a Foreign enemy they transferred the Government upon him whom before they had banished Judges 11. This also was the condition of the Campanes when they surrendred themselves unto the Romans in this Form We say their Embassadors in the name of all the people of Campania do freely surrender and give up our selves our City Capua our Fields Temples together with all that we have both divine and humane into your power O Conscript Fathers And some people we may read of who have offered themselves to the Romans upon condition of protection only and have been rejected App. Liv. lib. 5. lib. 8. as the Falisci and the Samnites And if so what then should hinder but that some people may in like manner surrender all power and right over themselves to some one man by whose wisdom and power they expect protection Also it may so happen that a man having vast possessions will not admit of any to inhabit his Countrey but under condition to submit to his Jurisdiction or It is possible that a man having large Territories and a multitude of servants may manumit them giving to each a proportion of Land on condition that they yield him their subjection with some kind of Tribute Precedents of this nature we want not Tacitus speaking of the Germans saith That every servant hath his several house and peculiar estate and governs his own Family his Lord imposing upon him what proportion of Corn Cattle and Garments he pleaseth which he readily payes and as a servant hitherto obeys Add hereunto what Aristotle observed That some men are naturally servants Some people naturally servile that is so apt for servitude as if Nature had made them for no other use and so are some people too of so servile a disposition that they know better how to obey than how to govern such were the Cappadocians who told the Romans plainly Strab. lib. 12. when they offered them Freedom that they could not live without a King Just l. 38. So Philostratus in the Life of Apollonius It is but solly to set at liberty the Thracians Mysians and Getes for they value it not Besides there were not a few people who have been perswaded to admit of Kingly Government by the example of other Nations who for many Ages have been observed to live very happily under it Seneca speaking of Brutus saith Though he were in other matters a gallant man yet in this he seemed to me to err Lib. 2. de Benef Not to have behaved himself like a Stoick That he was either affrighted at the Name of a King when the best Form of Government is that which is under a good King Or hoped for Liberty there where the rewards due to Empire and Subjection were so great Or that he could believe it possible to recall the Primitive Government The best Government is under a good King unless he could restore the Citizens to their ancient Manners or that he could reduce them to an equality of Civil Rights and put in force their ancient Laws when he saw so many thousands of men to fight Non utrum servirent sed utri Not whether they should obey or not but whom they should obey Some Cities saith Livy were so well pleased with the Government of Eumenes that they would not have changed their condition with the Freest Cities in the world The like is recorded by Isocrates That many deserted the Free Cities of Greece to live in Salamina a City in Cyprus under the Mild Government of Evagoras Again such may be the condition of a City that there remains no probable hopes of safety unless they put themselves under the Dominion of one single person Such was the state of the City of Rome which most wise men thought could not have been preserved had not Augustus Caesar assumed to himself the sole Government of the whole Empire Such cases I say not only may but do usually happen as Cicero observes in the second of his Offices But as hath been already said like as private Dominion may by a Just War be lawfully acquired so also may Civil Dominion or the right of Empire if it depend not upon some other Nor would I be thought to speak this of Monarchical Government only where that is received but the same Arguments will hold for the acquiring of an Oligarchical Government where the Nobles have excluded the Commons and assumed the Government upon themselves What that there is any Common-wealth so popular wherein some as the poor the stranger women and youths are not excluded from publick Counsels Even now there are some people also that have others truckling under them and who are no less subject unto them than they could be unto Kings Liv. lib. 1. Whence ariseth that Question in Livy Are the Collatine people under their own Jurisdiction or have they any power that is their own And the Campanes when they surrendred themselves unto the Romans Lib. 7. are said to be under the Jurisdiction of the Romans Acarnania as also Amphilochia are said to be subject to the Aetolians so are Peraea and Caunus to the Dominion of the Rhodians The Emperour Otho gave all the Cities of the Moors to the Province of Granado in Spain as Tacitus testifies So did Philip the City Pydna to the Olynthians Some Kings are so absolute that they are not subject to the whole body of the people Many other examples are here produced all which were absolutely Null if it be granted That the Right of Government be at the disposal of them that are governed Again some Kings there are that are not subject to the whole body of the people as Histories both Sacred and Prophane do testifie If thou shalt say saith God to the Israelites I will set a King supra me above me Deut. 17.14 Deut. 17.14 And unto Samuel saith God Shew them the right or manner of the King that shall reign over them 1 Sam. 8.4 The like we may
woman being free may chuse whom she will for her Husband but having once chosen the woman is perpetually bound to obedience So he that resolves to put himself as an Apprentice hath a freedom to chuse his own Master but having chosen cannot free himself when he pleaseth The wise Answer of Valântinian It was well said of Valentinian who being first chosen Emperor by the Army and afterwards denying them a request which seemed unto him unreasonable told them That it was indeed in their power to have chosen or not to have chosen him Theodoret lib. 4. c. 5. but being chosen what ye demand is in my power to grant but not in yours to exact It is your duty to obey and mine being your Emperor to consider what conduceth to the General Safety Neither is it altogether true what they seem to take as granted that all Kings are constituted by the people as may easily be proved as well by some Fathers of Families who admit of Strangers under the condition of Subjection as of some Nations conquered by the Sword 2. Arg. Another Argument they draw from that maxim of Philosophers That all Government is granted for the benefit of the people and not of the Governors and therefore the end being more noble than the means they for whose good Rulers are constituted are above the Rulers themselves But neither is this universally true That Government is for the good of the persons governed for some are for the sole use of the Governors as that of a Master over his Servant is chiefly and principally for the good of the Master but the good of the Servant is but extrinsecal and adventitious as the Physicians gain is but accidental to the Physick he gives There are also some Governments that are for the mutual benefit of both parties as that of an Husband over his Wife So of Empires some are gained by the Sword and those doubtless are for the benefit of the Conqueror neither is it therefore to be accounted tyrannical which word as now taken implyes somewhat of injustice And some Empires are for the mutual good both of him that governs as of them that are governed as when Jephtha was made King to defend the oppressed Gileadites Yet notwithstanding I cannot deny but that in most Empires what was long since said by Hesiod Herodotus and Cicero is very true That Kings are constituted to administer Justice to their people But to infer from thence that the people are above their King will be no good consequence for the Guardian is appointed for the good of his Pupil and yet hath he a right and a power over him But you will farther say That in case a Guardian perform not his duty he may be removed and why then may not a King Whereunto I answer That the case is not the same for a Guardian hath a power above him by whom he may be judged but so hath not a King for that there may be certain bounds set to all humane power it is necessary that we admit of one to be Supreme and That one must be either a single Person or an Assembly unto whom are referred the last Appeals whose faults because they have no Superior upon earth Jer. 25.12 God himself is said to punish And if he do not yet is that very toleration intended either as a punishment or as a Tryal of the People It was excellent advice that Tacitus gives in this case The extravagancies of Princes are to be born with patience The Luxury and Covetousness of Princes are to be endured with the self same necessary patience as we do storms and tempests at Sea or drought and scarcity by Land or the like natural inconveniences which are not to be avoided For vices there will be as long as there be men but this is our comfort that as they are not perpetual so they are sometimes recompenced with great advantages It was well said of M. Aurelius That if private persons offended the Magistrate is to judge If the Magistrate offend the Prince But of Princes God alone is the proper Judge Thus doth Vitigis being himself a King plead in Cassiodore in the behalf of Kings Causa Regiae potestatis supernis est applicanda Judiciis quandoquidem illa è coelo petita est soli coelo debet innocentiam The miscarriages of Princes are to be referred to Gods Tribunal for receiving their power from Heaven to Heaven alone they owe their innocence And presently after he subjoyns Neither can we be accountable to any other because upon Earth we have no Judge nor within our Dominions any Peers Another notable place we have in Gregory Turonensis where he being a Bishop thus bespeaks the King of France If any Subject deal unjustly with us it is in thy power O King to punish him But if thou oppress us who shall judge thee We may complain unto thee and if thou wilt thou mayst hear us but if not who shall condemn thee but he only that is Justice it self Among other opinions of the Essenes Porphyry commemorates this Lib. 5. That Empires fall not to any man by chance but by the special Providence of God Cujus jussu homines nascuntur hujus jussi reges constituuntur apti iis qui in illis temporibus ab ipsis regnantur Look saith Ireneus Ireneaus It is Gods providence that fits Kings to such times and to such a people by whose providence it is that men are born by the same it is that Kings are ordained Not by chance or peradventure but by Gods special appointment as being fitted for such times in which and for such persons over whom they are to rule according as it doth best advance those great designs of Gods Wisdom and Counsels whose instruments they are Thus is he said to raise up Pharaoh to manifest his power in him Exod. 9.16 Rom. 9.17 These were the sober thoughts of the Egyptians themselves as Diodorus observed Existimant non sine divina providentia pervenisse Reges ad summam omnium potestatem They are perswaded that it is not without a divine providence that Kings ascend to the highest power De Civit. Dei lib. 5. c. 21. So St. Augustine He that gave the Roman Empire to Augustus gave it afterwards to that monster of men Nero He that setled the same Empire in Vespasian and his Son Titus did afterwards transfer it on Domitian That Constitution of Clement is very pertinent to this purpose Lib. 7. c. 17. Regem timebis gnarus à domino electum Thou shalt fear the King knowing that his choice is from God Neither will it avail to say 1 Kin. 4.16 2 Kin. 10.17 2 Sam. 24.17 that we read of some people who have been punished for the sins of their Kings for this happens not because the people do not restrain and punish their Kings but because they tacitely consent to their vices Or haply without regard to this
It is one and the same God that sets up one and pulls down another and that transfers Crowns and Scepters from one Nation to another People and that rules the People by whom he pleaseth Now to such as judicially peruse the Writings of the Prophets they will appear most evident for they do not only foretel the Counsels of God but the very Kings and Princes by whom God intends to bring about his secret purposes are therein described yea and sometimes named long before they were born as Josias by name 1 Kin. 13.2 Cyrus by name Es 45.3 Which plainly argues that God doth not only foresee what will come to pass but pre-ordains such and such persons by whom he intends to effect his purposes yea and fits them with habits and graces accordingly he makes use of that supereminent power that he hath over the lives of every of his Creatures whereby to punish those Kings by taking away their Subjects it being the proper punishment of Kings to be thus weakned * The proper punishment of Kings is to be deprived of their Subjects IX Mutual Subjection refuted Others there are that seem to fansie to themselves mutual subjection as in case the King shall govern well then the whole body of people should obey but in case he govern ill then he ought to be subject unto the people Now if what they say do amount to no more than this That our obedience to Kings binds us not to do any thing that is manifestly wicked they say no more than what all sober men will grant Yet doth not this imply any compulsion or any right of Empire that is in the people But in case they had a purpose to divide the Government with the King whereof we shall have occasion hereafter to speak somewhat they ought to assign bounds and limits to the power of either party which may easily be done by making distinction of either Places Persons or Affairs But the well or ill management especially of Civil Affairs being apt to admit of great debates are not so sit to distinguish the parts for great confusions must necessarily arise where the right of power is to be judged of by the pretensions of good or evil acts some judging of these Acts in favour to the King others in savour to the people which confusion no people that I as yet know were ever so imprudent as to introduce X. Cautions in judging of the Supreme Power These errors being thus refuted It remains that we set down some Cautions which may guide us to give a right judgment to whom in every Nation the Supreme Power belongeth whereof the first is this That we suffer not our selves to be deceived by such names as are ambiguous in sence nor with the shew of outward things As for example Although amongst the Latins a Kingdom and a Principality are usually opposites as when Caesar said the Father of Vercingetorigis having got the principality of Gallia Kingdoms and Principalities promiscuously used was slain for his affecting the Kingdom And when Piso in Tacitus said that Germanicus was indeed the Son of a Prince of the Romans but not of the King of the Parthians And when Suetonius said that Caligula wanted but a little of changing his Principality into a Kingdom yet we find these Titles of times promiscuously used For both the Lacedaemonian Generals who derived themselves from Hercules Lib. 1. though afterwards they were subjected to the Ephori yet were still called Kings And some ancient Kings of Germany there were as Tacitus relates who Reigned magis suadendi quam jubendi potestate more by perswasions than by power And as Livy speaks of King Evander Lib. 15. that he governed rather as a prudent Magistrate than as a King Thus Solinus calls Hanno the King of the Carthaginians And he that wrote the Life of Hannibal saith That as the Romans chose every year two Consuls so the Carthaginians chose two Kings meaning their Suffetes or Judges Among these Kings improperly so called we may likewise reckon their Sons whom their Fathers were pleased to honour with the Title of Kings though they reserved unto themselves the Regal Power Such was that Darius whom his Father Artaxerxes commanded to be killed being first condemned for plotting his Fathers death as Plutarch relates the Story So on the contrary The Roman Emperors Plut. Aâtaxâ ad finâm after they had openly assumed unto themselves Regal Power contented themselves with the Names and titles of Generals or Princes Nay the Ensigns of Regal Power are in some Free Cities usually given to Princes But now the assembly of States that is of those that represent the whole body of the people digested as Gunther speaks into three orders namely Parliaments why called Prelates Nobles and the principal Burgesses of Cities do in some places indeed serve to this end only to be the Kings Greater Council whereby the grievances of the people which are oft-times concealed by his Privy Council may come to the Kings knowledge who have also power to determine them as it shall seem good unto them according to Custome But in other places they have power to call into question the Actions of the Prince and also to prescribe Laws which shall be binding even to the Prince himself There are many also that place the difference between the Supreme and the Lesser Powers in the translation of the Empire by Election or Succession Attributing the Supreme Power to this latter but not unto the former But this holds not universally true For Succession assigns not the Form of Government but the Continuation of a Form in the same Family For the right which began in the Election of such a Family is by Succession continued Among the Lacedaemonians the Kingdom even after the Ephori were constituted was hereditary And of such a Kingdom or Principality it is that Aristotle speaks where he saith That some pass by the right of Blood and some by Election And such in the time of the Ancient Heroes were most of the Kingdoms of Greece I mean successive as both Aristotle and Thucydides observed so doth Dionysius Halicarnassensis Whereas on the contrary the Roman Empire even after all power was taken as well from the Senate as people was always transferr'd by Election XI The Second Caution A Second Caution shall be this It is one thing to enquire concerning the thing and another to enquire concerning the manner of holding it which holds good not in things Corporeal only but in things Incorporeal For as a Field is a Thing so also is a Passage The thing it self distinguisht from the manner of holding it an Act or Way But these some may have by a full right of propriety others by a right usufructuary as a Farmer hath a right to his Farm and some others by a Temporary Right As the Roman Dictator the Soveraignty but by a Temporary Right So Kings as well those that are first Elected as
all the Cities Provinces Tributes and Prizes that should be taken in that War should be his Strabo tells us Lib. 8. That the Isle Cythara lying against Tenarus did belong to Euryclis one of the Lacedaemonian Princes in his own Right So we read that Solomon gave Hiram of Tyre twenty Cities not of those that belonged to the Hebrews 1 Kings 19. For Cabul which was the name imposed on those Cities was seated without the Hebrew bounds Jos 19.27 But out of those which the people that were enemies to the Jews 1 King 9.6 12. had held till the days of Solomon and were partly conquered by the King of Egypt and given unto Solomon in dowry with his daughter and partly conquered by Solomon himself For that these Cities were not at that time possest by the Hebrews is evident from this 1 Chron. 8.14 That as soon as King Hiram had restored them to Solomon he then planted in them a Colony of the Jews Diod. l. 4. So we read that Hercules gave the Kingdom of Sparta which he had conquered by arms unto Tindareus on this condition That if Hercules should have any children of his own she should restore it to them And having conquered the Epirots he gave them to Apollo So we read that Aegimus King of Doris Serv. ad 4. Aenead Apollod having called to his assistance Hercules in his War against the Lapithae gave him a part of that Kingdom as his reward Cychreus King of Salamine having no children left his Kingdom by his Testament unto Teucrus Amphipolis was given in a Marriage dowry to Acamantes the Son of Theseus And in Homer Agamemnon promises to give unto Achilles seven Cities So King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus Vid. Serv. ad 6. Eclog. So again in Homer we read that Jobates gave his daughter to Bellerophon with a part of his Kingdom in Dowry And Justin tells us Lib. 5. That Darius bequeathed by his Testament his Kingdom to Artaxerxes but the Cities whereof he was governour only to Cyrus And probable it is That the successors of Alexander every one for his part did succeed him in that full Right of Governing the Nations which were either formerly under the Persian Empire or which they afterwards gained by the right of their own Conquests And therefore it is not to be wondred at that they claimed unto themselves the Right of Alienation So when King Attalus the Son of Eumenes had by his Testament made the people of Rome heir to all his goods they under the name of goods possessed themselves of his Kingdom whereof L. Florus speaks thus The Word Heir implying an Inheritance Lib. 2. Epit. Liv. 58. the people of Rome held his Kingdom as a Province and not as gained by War or by force of Arms But by what was yet more righteous by a Testamentary Right So when afterwards Nicomedes the King of Bithynia dying made the Romans his heir They presently reduced his Kingdom into the form of a Province Orat. 2. In Rullum Whereof Cicero thus We have added to our Inheritance the Kingdom of Bithynia So that part of Libia wherein the Cities Berenice Ptolomais and Cyrene stood was by King Appio given by Testament to the same people And Tacitus makes mention of some Fields Epitom Livy l. 43. Ann. l. 41. which belonging formerly to King Appio were by him left together with his Kingdom to the people of Rome Procopius likewise tells us That King Arsaces by his Testament divided the Kingdom of Armenia leaving the greater Armenia to Arsaces and the lesser to Tigranes And hence it was That King Herod having obtained from Aug. Caesar a Power to leave his Kingdom to which of his Sons he pleased Josephus was so often observed to alter his Testament This custom also was much in use amongst the Goths and Vandals Procopius in those Kingdoms which they held by Conquest The same we may observe much practised among the Turks Sultan Aladine bequeathed by his Will many Cities to Osman Leunclavius lib. 2. Bajazet also gave diverse of the Cities of Servia to Stephanus in favour to his own Wife being Sister to Stephanus Sultan Mahomet bequeathed his Kingdom by his Testament to Sultan Morat Idem lib. 4. and Mahomet the Turk intended to have divided his Empire and to have left the Asian Empire to Mustapha and the European to Amurat. This also was frequently used in many other Nations To rehearse them all would be no less troublesome to me than it would be tedious to the Reader But these may suffice to prove That where Kingdoms are held by a full and absolute Right they may be alienated Yet so That though the Right of Empire may be transferred yet doth every singular person enjoy his own Liberty XIII Some are held not so fully But in those Kingdoms wherein the people have any power by way of Election or Confirmation I confess it cannot be presumed That it was ever their Mind to suffer the King to alienate his Kingdom Wherefore what Crantzius observed in Vnguinus as an Act without any Precedent That he had by his Testament given away Norway we ought not to disapprove For haply he regarded only the Customs of the Germans amongst whom there was no such Right permitted as to bequeath Kingdoms For as Vopisâus in Tacitus saith Empires cannot be bequeathed as goods and bond-slaves may Nor can a King as Salvian observes by his Testament bequeath the people whom he hath governed to the poor Now whereas Charles the Great Lewis the Good and others afterwards among the Vandals and Hungarians are said to dispose of Kingdoms by their Testaments These afforded rather matter of praise among the people than argued the force of a true Alienation And as to that of Charles Ado makes special mention that he desired his Testament might be confirmed by the Peers of France The like we find in Livy concerning Philip King of Macedon who endeavouring to expel Persis out of his Kingdom and settle Antigonus his own Brothers son in it went throughout the Cities of Macedon solliciting the Princes on his behalf Neither is it to the purpose to object That the same Lewis restored the City of Rome to Pope Paschal Considering that the French having before received the Soveraignty over that City from the people might very well restore it back again to the same people in the person of the Pope being their chief Citizen and a Prince of the first order XIV Some power not Supreme yet fully held What we have hitherto admonisht namely That we are carefully to distinguish between the supreme power it self and the manner of holding it is so true That as many Soveraign Empires are not held by a fast and absolute Right so there are many that are not supreme that are fully and compleatly held whereby it falls out that Marquisates and Earldoms are much more easily either
sold or bequeathed by Testaments than Kingdoms are XV. This appears by the assigning Tutors and Protectors in Kingdoms There is also another mârk whereby this distinction may be seen namely in the Tutâlage or Protection of Kiâââoms when Kings and Princes are hindered or disabled either by some disease or thâââgh old age or the like from performing their duty For where the Kingdom is not Pâtrimonial the Protectorship is theirs to whom the publick Laws or if they are silent the people shall consign it But if the Kingdom be Patrimonial then to them whom the Father or the nearest of kin shall chuse Thus did Ptolomy King of Aegypt appoint by his Testament the people of Rome as Guardians to his Son who to perform that trust sent M. Aemilius Lepidus who was their Chief Priest Val. Mar. lib. 6. Tit. 6. c. 1. and had been twice Consul unto Alexandria to take care of the Government and of the Childs Education By whose care not only the Kingdom was preserved but the Child in his youth so well disciplin'd that it was hard to judge whether he received more glory by his Fathers great fortunes or by the Majesty of his Guardian So we read that in the Kingdom of Epirus which first depended on the suffrages of the people Tutors were publickly assigned unto their young King Ariba The like was done by the Nobility of Macedon to the Posthumous son of the Great Alexander But in Asia the Lesser which was gained by the Sword King Eumenes dying appointed his Brother Protector to his young son Attalus So did Hiero King of Sicily by his Testament constitute unto his son Hieronymus what Tutors he pleased But whether the King be also in his own private right Lord of the soil as the Kings of Aegypt were after the times of Joseph or as the Kings of the Inâians were as Diodorus and Strabo testifie or whether they are not it makes no diffeâence For these are extrinsick to the Empire and therefore can neither constitute another kind of Government nor alter any thing as to the manner of holding it XVI Soveraignty not lost by any promise made of any things which belong not to either the Law of God or Nature The Third observation shall be this That an Empire ceaseth not to be supreme though he that is to govern do by promise oblige himself either to his Subjects or to God unto such things as do properly appertain unto his manner of Government I mean not hâre such things as appertain to the Laws of God Nature or Nations For unto these every Prince stands obliged though he promise not But I mean though he do promise to confine his own power within certain Laws and Rules whereunto nothing can bind him but his oath or promise The Emperour Trajan did solemnly imprecate vengeance on his own head and right hand in case he knowingly failed in what he had promised And the Emperour Adrian sware that ye would never punish a Senator without a decree of the Senate Anastasius bound himself by oath to observe the decrees of the Synod of Chalcedon And all the Greek Emperours did likewise oblige themselves to observe the Canons and Constitutions of the Church But by none of these Oaths or Promises doth the Power of an Emperour cease to be supreme This may clearly be illustrated by comparing the power of a King with that of a Master in his own Family For although a Master do promise to observe such orders as he conceives to be most conducing to the welfare of it yet doth he not thereby cease to be supreme in his own Family Nor doth a husband cease to have power over his wife though he have obliged himself to the contrary by some promises that he hath made to her yet I must acknowledge that where such Oaths and Promises are made the soveraignty is thereby somewhat straitened whether the obligation do only restrain the exercise of the Act as that of Adrian's above-mentioned or the very power it self If it restrain the exercise only then the act that is done contrary to promise is sâid to be unjust because as we shall shew anon every promise gives a right to him to whom it was made But if it restrain the faculty it self then the Act will be void for wânt of a Right or Faculty to do it And yet will it not necessarily follow that he thââââus promiseth hath any power superiour to himself for his Act is not made void by any power above him but by very right Among the Persians no man can say but that their Kings were supreme and absolute in power and not liable to give an account as Plutarch testifies Nay their Kings were adored as Gods own Image and as Justin tells us were never changed but by Death He was a King indeed that said to the Nobles of Persia Ne viderer meo tantummodo usus consilio vos contraxi caeterum mementote parendum vobis magis quam suadendum Val. Max. lib. 9. c. 5. Lest I should be thought to govern by mine own counsels only I have called you together but otherwise remember that it is your duty rather to obey than to perswade And yet did this very King at his Coronation swear not to alter the Laws of that Kingdom made after such a form as both Xenophon and Diodorus testifie and as the Histories of Daniel and Plutarch in the life of Themistocles inform us Ch. 6 8 13 15. Pers l. 1. So Josephus tells us That Vashti could not be reconciled to the King because the Royal Decree was gone out which could not be broken And long after them Procopius confirms as much where we may read a notable example to this purpose The very same doth Diodorus Siculus relate of the Kings of Aethiopia and Aegypt who without doubt as all other Eastern Kings had in their respective Kingdoms absolute Power and yet were they all at their admission obliged to many things by Oaths or Promises Which if they performed not though whilest they lived they could not be questioned yet being dead their memories might be accused and being condemned their carcâsses might be denyed solemn Funeral This Apion records Civiliam 3. Leges Tyrannorum Corpora insepulta extra fines projici jubent The Laws saith he command the bodies of Tyrants to be cast out of their Territories unburied In obedience to the like Law the Emperour Andronicus deprived his own Father Michael of Christian Burial Gregoras l. 6. because he followed the Faith of the Latin Churches And such another Law there seemed to be amongst the Hebrews who would not permit the dead bodies of their wicked Kings to be interr'd among their good Kings The like we may find in Josephus concerning the two Jorams 2 Chr. 24.25 Ch. 28. 27. Jos Art l. 8. c. 3.5 the one King of Juda the other King of Israel By which excellent temperament of reverence and justice they both preserved the Majesty of
and not to declare that the other is not free By superiour we understand not in power for he had said before that a free Nation should not be subject to the power of another but in Authority and Dignity which the words following by a very fit Simile do clearly illustrate Some Nations are equal in liberty though not in dignity with others For as we know our Clients to be free though neither in Dignity nor in Authority nor in all Right our equals so they that are obliged faithfully to uphold our Majesty are notwithstanding to be understood our equals in liberty Clients are free though under the defence of their Patrons or Advocates so is an Inferiour people free though in League with a people superiour unto them in dignity For they may be under their protection though not under their jurisdiction as Sylla speaks in Appian An example we have in the Dilimnites Ap. Mithridat who as Agathias tells us were ãâã ãâã ãâã ãâã ãâã Free to live by their own Lawâ though they served the Persian in his Wars This was the design of the Empress Irene so to divide the Empire among the Sons of her Husband that the younger Sons should be Inferiour to the Eldest in dignity but otherwise they should be Independent and Absolute in Power De Off. l. 2. Cicero speaking of that Golden Age of the Roman Empire saith Patrocinium Sociorum penes eos esse non Imperium The Romans gave protection to their Friends and Allies but claimed no dominion over them Liv. l. 26. With whom agrees that of Scipio Africanus The People of Rome had rather oblige their Neighbours unto them by Courtesies than by Fear and to win foreign Nations unto them by Faith and Friendship than to subject them to an ungrateful bondage And what Strabo reports of the Lacedaemonians after the arrival of the Romans in Greece saying They enjoyed their own Freedom contributing nothing unto the Romans but the mutual offices of love and friendship As private Protection takes not away personal Liberty Protection so neither doth publick take away Civil which without Soveraign Power cannot consist And therefore Livy wisely opposeth to be under protection unto to be under Jurisdiction Augustus Caesar as Josephus relates threatned Syllaeus King of Arabia that if he abstained not from injuring his neighbours he would quickly make him of a Friend a Subject which was the condition of the Kings of Armenia who being under the Roman âurisdiction retained only the Title of Kings but not the Power As did also the Kings of Cyprus and some others though in name Kings yet were they Subjects to the Persian Monarchy as Diodorus calls them But here it may be objected what Proculus adds Lib. 16. Four kinds of differences usually arise between Confederates But some who belong to our Confederate Cities are with us found guilty whom being condemned we may punish But that we may understand these words we must know that there are four kinds of differences that usually arise among Confederates As in the first place If the Subjects of the King or State under protection are said to have done any thing against the League Secondly If the King or States themselves are accused Thirdly If the Associates that are under the protection of the same King do quarrel one with another Lastly If Subjects complain of Injuries done them by those under whose Jurisdiction they are If the Controversies be of the first kind the King or State are obliged either to punish or to deliver up the Offender to the person injured And this ought to be done not only between unequal Confederates but between equals even between such as are not linked together by any League as shall be shewed anon Nay farther He is obliged to endeavour that satisfaction be made to the injured person which in Rome was called the Recuperators office For the Law saith Aelius Gallus in Festus doth determine between King and People Nations and Foreign Cities how things by the Recuperator may be restored and how they may be received and how private mens cases may be prosecuted in each Nation For one of the Confederates can have no right directly to apprehend or to punish the Subjects of the other Confederate and therefore Decius Magius a Campane being apprehended and bound by Hannibal and so conveyed to Cyrene and from thence sent to Alexandria pleaded that he was bound by Hannibal contrary to the Articles of the League whereupon he was presently set at liberty As to the second kind of Controversies One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League and in case of refusal to punish him but neither is this peculiar to a League that is unequal but may be done in one that is equal For it is enough to justifie any man for seeking a revenge against him that hath wronged him that he is not subject unto him as shall be proved anon wherefore this is also in force even among such people as are not confederated The third sort of Controversies are amongst such as are equally confederated and these are usually referred to a Dyet or Convention of the States associated yet not therein concerned For so the Greeks the Latins and the Germans were wont to do or otherwise referred to Arbiters or even to the Prince of the League as to a common Arbiter So in an unequal League it is usually agreed that the things in controversie shall be discust in that Nation which is superior in the League wherefore neither doth this argue a superiority in power for even Kings themselves refuse not to have their own causes sometimes tryed before such Judges as even themselves have constituted But of the last kind of Controversies Associates have no right at all to judge and therefore when Herod did vehemently accuse his two Sons before Augustus Caesar for conspiring against his life they took it as a favour he had done them Jos Ant. lib. 16. c. 7 8. Poteras de nobis Supplicium sumere tuo jure tum qua pater turn qua Rex Thou mightest have inflicted what punishment upon us thou wouldst by thine own Right both as a Father and as a King And when Hannibal was accused at Rome by some Carthaginians for stirring up Sedition amongst the Citizens Val. Max. lib. 4. c. 1. Pol. lib. 1. c. 9. Scipio told the Senate That it did not become them to intermeddle with that which properly belonged to the City of Carthage And herein it is that Aristotle puts a difference between a Society and a City for it concerns confederate Societies to take care that no injuries be committed against them but not that the Citizens of any one of the Confederates do not injure one another But here again it may be objected That in unequal Leagues he that is superior in the League is sometimes said to command and he that is inferior to obey
but neither should this move us for this is when the things in controversie concern either the common good of both parties confederate or the private profit of him that is superior in that League As to the things of common concernment Dan. 11.22 the Assembly not sitting He that was the Prince of the League though it were an equal League did usually command his Associates as Agamemnon in the Trojan Expedition did the Graecian Princes and as afterwards the Lacedemonians did the Graecians and after them the Athenians Thucydides in that Oration made by the Corinthians saith It very well becomes the Prince of the League in private matters to deal equally but in publick to be more than ordinarily sollicitous Isocrates commending that excellent conduct of the ancient Athenians in the managing of their social Wars saith That they took care for all without intrenching upon the liberty of any And in another place he allows them to Command but not to Domineer It is well worth our observation that what the Latins express by the word Imperare to command the Greeks more modestly express by the word ãâã ãâã ãâã ãâã ãâã to dispose or set in order The Athenians to whom the conduct of the War against the Persians was committed ãâã ãâã ãâã ãâã ãâã saith Thucydides did order which City should contribute Money and which Ships And they that were sent from Rome into Greece Plinii ep lib. 8. c. 24. are said to be sent to give orders for the well governing of the free Cities Now if he that is the principal party in an equal League do thus it is not to be wondred at if he that in an unequal League is superior in honour and dignity do the same For the word Imperium that is Empire taken in this sence as it signifies only an Ordinance and Appointment equally conducing to the common good doth not at all imply the loss of the others liberty Livy l. 37. The Rhodians in their Oration to the Roman Senate thus bespake them The Gracians were wont to defend their Empire with their own forces But their Empire where now it is they wish that it may remain for ever They are now well contented to defend their liberties with your Arms Lib. 15. being no longer able to do it with their own So Diodorus tells us that after the taking of the Cadmean Fort by the Thebans many of the Graecian Cities met and agreed among themselves That every City in Greece should enjoy its own freedom yet the conduct of the War should be given to the Athenians And yet Dion Prusaeensis speaking of those very Athenians in the times of Philip of Macedon saith That having at that time lost their command in the War they retained only their own liberty So those people which Caesar reckoned to be under the command of the Suevians he by and by calls his Confederates But in such things as appertain to his own particular profit the request of him that is Superior in the League are usually taken for Commands not that they are so indeed but that they are in respect of their usual effects equivalent to Commands for he needs no force who knows himself to be feared Armatae sunt Regum praeces The Requests of Kings have the same power as Commands And a denyal how just soever shall be by them as ill digested as an injury It was never heard of saith Livy before Caius Posthumius that any Consul was either chargeable or burdensome to our Associates in any thing and therefore were our Magistrates supplyed abundantly with Mules Pavilions and all other Instruments of War that so they might not require them from our Associates In the mean time it sometimes so falls out The weaker Associates sometimes reduced unto subjection That if he that is superior in the League be much more potent than the rest of the Confederates he may by degrees at length usurp the Soveraignty over them especially if the League be perpetual and that he hath thereby a right to place Garrisons in any of their strong Towns as the Athenians sometimes did when they suffered themselves to be appealed unto from their Associates Hal. l. 6. Livy l. 34. which by the Lacedemonians was never done wherefore Isocrates equals the Government that the Athenians exercised in those days over their Associates with that of Kings and absolute Princes So the Latines in Livy complain against the Romans that under the specious Title of being Associates in War they were reduced into a mere Subjection which Society in Arms Plutarch in the Life of Aratus calls a Gentle Slavery Hist 4. So Festus Rufus in Tacitus concerning the Rhodians At first they lived in great freedom till afterwards the Romans gently urging them they were brought by little and little into an habit of Subjection So the Aetolians likewise complained That they had nothing left them but the bare shadow and empty name of Liberty So likewise afterwards the Achaians complain That they had indeed a League in appearance but were at length brought into a Precarious Servitude The like complaint Civilis Batavus in Tacitus makes against the same Romans That they used them not as formerly like Companions but usurped and insulted over them as mere Slaves And in another place they falsely called that peace which was indeed but a miserable Slavery Thus Eumenes also in Livy concerning the Confederates of the Rhodians that they were their Associates in Name but their Vassals indeed Thus also Magnetes in Polybius saith That Demetrias was in shew free but in effect all things were done there at the will of the Romans The Thessalians likewise were in appearance free but indeed under the dominion of the Macedonians as the same Polybius testifies Now when these things are done and so done as by patient endurance they may by mistake be said to be rightly done whereof we shall elsewhere discourse more fully then either of Companions they are made Subjects or certainly there must be a partition of the Supremacy which as I have said before may sometimes happen XXII Of such as pay Tribute They that pay any thing either in satisfaction of wrongs past or to be protected against injuries to come are by Thucydides called tributary Associates such were the Kings of the Hebrews and of their Neighbour Nations after the time of M. Anthony free though under a certain tribute Nor do I see any cause to doubt but that they that Reigned so had Supreme Power within their respective Dominions and had a full right to punish delinquents according to their own Laws Thus M. Anthony defends King Herod being accused for murthering Aristobulus That it was neither just nor right to call a King to an account for what he doth as a King for if so he could not be a King For common equity requires that they that gave him that honour should permit him the free use of that Soveraign Power which was appendent unto it So
Chrysostom When the Empire of the Jews began to decline and they made Tributaries to the Romans They neither enjoyed that full liberty which they did formerly nor were they in that pure subjection as now they are But were indeed honoured with the Title of Associates yet they paid Tribute to their Kings and received Governors from them Moreover they had the free use of their own Laws so that if any of their Countrymen offended they themselves punished them by their own Laws And yet I deny not but even this very acknowledgment of their own weakness and insufficiency doth somewhat abate and detract from the Majesty of their Empire XXIII Of such as hold their dominions in Feud But that which seems to some to be more difficultly to be answered is when one Prince holds his Dominion from another as being Lord of the Fief which yet may be sufficiently answered by what hath been said before For in this Contract which is peculiar to the German Nation and no where found but where they have planted themselves two things are especially to be observed 1. The personal Obligation 2. The Right in the Thing so held The Personal Obligation is the same whether a man possesseth the very Right of Soveraignty or any thing else though lying elsewhere by vertue of the Fief but such an Obligation as it takes not from a private man the right of Personal Liberty so neither doth it diminish any thing in a King or State of the Soveraignty which is Civil Liberty which is easily to be understood by those Lands which are called Free-holds which consist in Personal Obligations only but gives no right in the thing so held for these are no other than a species of that unequal League whereof we have discoursed before wherein the one promiseth Fealty and the other safeguard or protection But admit they do swear Faith and Allegiance against all men yet would this detract nothing from the Right of Soveraignty over their own Subjects Not at all in this place to mention that there are ever reserved in these Oaths a tacite Condition that the War be just whereof we shall treat elsewhere But as to the Right in the thihg so held it may be such that the very Right of Governing if held in the right of the Fief or Fee may be lost and so return unto him that gave it as well in case the Family be extinct as also for some notorious crimes and yet notwithstanding in the mean time it ceaseth not to be the Supreme Power For as I said before the thing it self is one thing and the manner of holding it is another And by this Right I find many Kings constituted by the Romans so that the Royal Family failing the Empire did escheat unto themselves as Strabo observes of Paphligonia and some others Lib. 12. XXIV A mans right distinguisht from the exercise of that right Lastly We must also distinguish as in Private Dominion so in Empire between the Right it self and the exercise of that Right or between the first act and the second For as a King though an Infant hath a Right to govern but is not permitted to exercise that Right so he that is mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the good of that Empire that is remote from him Vide Bo. 3. ch 20. §. 3. For in all such cases they have their Lieutenants or Viceroys to act for them wherefore Demetrius living under restraint with Seleucus did forbid any credit to be given to his Letters or unto his Seal Plut. Demetr but commanded that all things should be so governed as if he were dead CHAP. IV. Of a War made by Subjects against their Superiors I. The Question stated II. War against Superiors as such ordinarily unlawful This proved by the Law of Nature III. By the Hebrew Law IV. By the Gospel Law proved by Scriptures V. By the Practice of the Primitive Christians VI. For Inferior Magistrates to make War against the Supreme unlawful Proved by Reasons and Scriptures VII What is to be done in a case of extreme and inevitable Necessity VIII That a free People may make War against their Prince if he be accountable unto them IX And against a King who hath renounc'd his Kingdom X. Or who is about to alienate it as to the delivery of it only XI Or if a King do manifestly carry himself as a professed enemy against the whole Body of his people XII Or shall forfeit his Kingdom by a wilful breach of that condition upon which he was admitted unto the Empire XIII Or if having but one part of the Supreme Power he shall invade the other XIV Or if any such liberty of resistance be in such a case reserved unto the people at his admission XV. How far forth Obedience is due to him that usurps another mans dominions XVI An Vsurper may be killed the War continuing If no Faith nor Agreement be given or made to the contrary XVII Or if Licence be given by an Antecedent Law XVIII Or by warrant from him who hath Right to the Empire XIX Why an Vsurper is not to be killed but in these cases XX. In a controverted Right Private men are not to be Judges I. The Question stated PRivate Men may without doubt make war against private men as the Traveller against the Thief or Robber so may Soveraign Princes and States against Soveraign Princes as David against the King of the Ammonites Private men may make war against Princes if not their own as Abraham against the King of Babylon and his Neighbours so may Soveraign Princes against Private Men whether they be their own Subjects as David against Ishbosheth and his party or Strangers as the Romans against Pyrates The only doubt is whether any person or persons publick or private can make a lawful war against those that are set over them whether as supreme or as subordinate unto them And in the first place It is on all hands granted That they that are commissionated by the highest powers may make war against their Inferiors as Nehemiah did against Tobia and Sanballat by the Authority of Artaxerxes But whether it be lawful for Subjects to make war against those who have the Supreme Power over them or against such as act by and according to their Authority is the thing in question It is also by all good men acknowledged That if the Commands of a Prince shall manifestly contradict either the Law of Nature or the Divine Precepts they are not to be obeyed for the Apostles when they urged that Maxim Deo magis quam hominibus obediendum That God is rather to be obeyed than man Act. 4. unto such as forbad them to Preach in the name of Jesus did but appeal to a Principle of right reason which Nature had insculpt in every mans breast and which Plato expresseth in almost
the very same words But yet if either for this or for any other cause any injury be offered unto us because it so please him that hath the Soveraign Power it ought rather to be patiently tolerated than by force resisted For although we do not owe an active obedience to such Commands of Princes yet we do owe a passive though we ought not to violate the laws of God or of Nature to fulfil the will of the greatest Monarch yet ought we rather patiently to submit to whatsoever he shall inflict upon us for not obeying than by resistance to violate our Countries peace The best and safest course we can steer in such a case is either by Flight to preserve our selves or resolvedly to undergo whatsoever shall be imposed on us II. War against Superiors as such unlawful And naturally all men have a right to repel Injuries from themselves by resisting them as we have already said But Civil Societies being once instituted for the preservation of Peace there presently succeeded unto that Common-wealth a certain greater Right over us and ours so far forth as was necessary for that end And therefore that promiscuous Right that Nature gave us to resist the Common-wealth for the maintaining of good order and the publick peace hath a right to prohibit which without all doubt it doth seeing that otherwise it cannot obtain the end it proposeth to it self For in case that promiscuous Right of forceable resistance should be tolerated it would be no longer a Common-wealth that is a Sanctuary against Oppression but a confused Rabble such as that of the Cyclops whereof the Poet thus Where every Ass May on his Wife and Children Judgment pass A dissolute Company where all are speakers and no hearers Like unto that which Valerius records of the Bebricii Who all Leagues and Laws disdain And Justice which mens minds in peace retain Salust makes mention of a wild and savage people living like Beasts in Woods and Mountains without Laws and without Government whom he calls Aborigines And in another place of the Getuli who had neither Laws good Customs nor any Princes to govern them But Cities cannot subsist without these Generale pactum est societatis humanae regibus obedire All humane Societies saith St. Augustine unanimously agree in this to obey Kings So Aeschylus Kings live by their own Laws subject to none And Sophocles They Princes are obey we must what not To the same Tune sings Euripides Folly in Kings must be with patience born Whereunto agrees that of Tacitus Principi summum rerum arbitrium Dii dederunt c. Subditis obsequii gloria relicta est God hath invested a Prince with Soveraign Power leaving nothing to Subjects but the glory of Obedience And here also Sen. Things base seem Noble when by Princes done What they Impose bear thou be 't right or wrong Wherewith agrees that of Salust Impunè quid vis facere hoc est Regem esse To do anything without fear of punishment is peculiar to Kings for as Mark Anthony urged in Herod's case If he were accountable for what he hath done as a King he could not be a King Hence it is that the Majesty of such as have Soveraign Power whether in one or more is senced with so many and so severe Laws and the licentiousness of Subjects restrained with such sharp and exquisite torments which were unreasonable if to resist them were lawful If a Souldier resist his Captain that strikes him An Officer striking must not be struck again and but lay hold on his Partisan he shall be cashiered but if he either break it or offer to strike again he shall be put to death for as Aristotle observes If he that is an Officer strike he shall not be struck again III. The unlawfulness of making war against our Superiors proved by the Jewish Law By the Hebrew Law He that behaved himself contumaciously against either the High-Priest or against him who was extraordinarily by God ordained to govern his people was to be put to death and that which in the eighth Chapter of the first Book of Samuel is spoken of the right of Kings to him that throughly inspects it is neither to be understood of their true and just rights that is of what they may do justly and honestly for the duty of Kings is much otherwise described Deut. 8.11 nor is it to be understood barely of what he will do for then it had signified nothing that was singular or extraordinary Jos 1.18 1 Sam. 8.11 Deut. 17.14 for private men do the same to private men But it is to be understood of such a fact as usurps or carries with it the priviledge of what is right that is that it must not be resisted although it be not right for Kings have a Right peculiar to themselves and what in others is punishable in them is not That old Saying Summum jus summa injuria Extreme right is extreme wrong is best fitted to the case of Kings whose absolute power makâs that seem right which strictly taken is not so There is a main difference between Right in this sence taken Right differenced from Just and Just for in the former sence it comprehends whatsoever may be done without fear of punishment but Just respects only things lawful and honest And though some Kings there be who are what Servius in Cicero's Philippicks is commanded to be magis Justitiae quam Juris Consulti More regardful of their honour and duty than of their power and prerogatives Yet this doth not diminish their Soveraign Right because if they will they may do otherwise without the danger of being resisted And therefore it is added in that place of Samuel before cited That when the people should at any time be thus oppressed by their Kings as if there were no remedy to be expected from men they should invoke his help who is the Supream Judge of the whole Earth So that whatsoever a King doth though the same done by an inferiour person would be an Injury yet being done by him is Right As a Judge is said Jus reddere to do right though the sentence he gives be unrighteous IV. By the Gospel Law When Christ in the New Testament commanded to give Caesar his due doubtless he intended that his Disciples should yield as great if not a greater obedience as well active as passive unto the higher Power than what was due from the Jews to their Kings which St. Paul who was best able to Interpret his Masters words expounding Rom. 13. doth at large describe the duty of Subjects Rom. 13.2 charging those that resist the power of Kings with no less Crime than Rebellion against Gods Ordinance and with a Judgement as great as their sin For saith he They that do so resist shall receive unto themselves damnation And a little after he urgeth the necessity of our subjection Not altogether for fear but for Conscience as knowing that He
is the Minister of God for our good Now if there be a necessity of our subjection then there is the same necessity for our not resisting because he that resists is not subject Neither did the Apostle mean such a necessity of subjection as ariseth from an apprehension of some worse inconvenience that might follow upon our resistance But such as proceeds from the sense of some benefit that we receive by it whereby we stand obliged in duty not unto man only but unto God so that he that resists the power of the Supream Magistrate incurs a double punishment saith Plato First From God for breaking that good order which he hath constituted amongst men and Secondly From the Common-wealth whose righteous Laws made for the preservation of the publick peace are by resistance weakned and the Common-wealth thereby endangered For canst thou believe saith Plato that any City or Kingdom can long stand when the publick Decrees of the Senate shall be wilfully broken and trampled upon by the over-swelling power of some private men who in strugling against the execution of the Laws do as much as in them lyes dissolve the Common-wealth and consequently bring all into confusion The Apostle therefore fortifies this necessity of publick subjection to Princes with two main Reasons First Because God had constituted and approved of this Order of Commanding and Obeying and that not only under the Jewish but under the Christian Law wherefore the Powers that are set over us are to be observed not servilely superstitiously or out of fear but with free rational and generous Spirits tanquam à Diis datae as being given by the Gods saith Plato or as St. Paul tanquam à Deo ordinatae as if ordained by God himself Which order as it is originally Gods so by giving it a Civil Sanction it becomes ours also for thereby we add as much authority unto it as we can give The other reason is drawn ab utili from profit Because this order is constituted for our good and therefore in Conscience is to be obeyed and not resisted But here some men may say That to bear Injuries is not at all profitable unto us whereunto some men haply more truly than appositely to the meaning of the Apostle give this answer That patiently to bear Injuries conduceth much to our benefit because it entitles us to a reward far transcending our sufferings as St. Paul testifies But though this also be true yet is it not as I conceive the proper and genuine sense of the Apostles words which doubtless have respect to that universal Good whereunto this order was at first instituted as to its proper end which was the publick Peace wherein every particular man is as much concerned if not much more than in his private For what protection can good Laws give if Subjects may refuse to yield their obedience to them whereas by the constant observance of good Laws all estates both publick and private do grow up and flourish together Plato And certainly these are the good Fruits that we receive from the Supream Powers for which in Conscience we owe them obedience For no man did ever yet wish ill to himself But he that resists the power of the Magistrate and wilfully violates the Laws established doth in effect as far as in him is dissolve his Countreys peace Plato and will in the end bury himself also in the ruines of it Besides the Glory of Kings consists in the prosperity of their Subjects When Sylla had by his Cruelty almost depopulated Plut. Florus Aug. de Civ Dei lib. 3. c. 28. not Rome only but all Italy one seasonably admonisht him Sinendos esse aliquos vivere ut essent quibus imperet That some should be permitted to live over whom he might rule as a King It was a common Proverb among the Hebrews Nisi potestas publica esset alter alterum vivum deglutiret Were it not for the Soveraign Powers every Kingdom would be like a great Pond wherein the greater Fish would alwayes devour the lesser Agreeable whereunto is that of Chrysostome Vnless there were a power over us to restrain our Inordinate Lusts men would be more fierce and cruel than Lyons and Tygers not only biting but eating and devouring one another Take away Tribunals of Justice and you take away all Right Property and Dominion No man can say this is mine House this my Land these my Goods or my Servants Chrys de Statuis 6. Ad Eph. 5. but Omnia erunt fortiorum the longest Sword would take all The mighty man could be no longer secure of his Estate than until a mightier than he came to dispossess him the weaker must alwayes give place to the stronger and where the strength was equal the loss would be so too And this would at length introduce a general Ataxy which would be far more perilous than a perfect Slavery Wherefore seeing that God hath established and humane reason upon tryal approved of Soveraign Empire as the best preservative of humane Societies that every man should yield obedience thereunto is most rational For without Subjection there can be no Protection But here it will be objected That the Commands of Princes do not alwayes tend to the publick good Object and therefore when they decline from that end for which they were ordained they ought not to be obeyed To which I answer That though the Supream Magistrate doth sometimes either through Fear Anger Lust Covetousness or such like inordinate passions baulk the ordinary path of Justice and Equity yet are these happening but seldome to be passed over as personal blemishes which as Tacitus rightly observes are abundantly recompensed by the more frequent example of better Princes Besides the Lives of Princes are to be considered with some grains of allowance in respect of those many provocations and opportunities they have to offend which private men have not All men have their Failings we our selves have ours and in case we will admit of none in Kings we must not rank them amongst men Kings to be censured with some favour but Gods The Moon hath her spots Venus her Mole and if we can find nothing under the Sun without blemish Why should we expect perfection in Kings He is very uncharitable that judges of Rulers by some few of their Evil deeds passing over many of their Good ones Seeing therefore that there is in all mens lives as in our best Coin an Intermixture of Good and Evil it is sufficient to denominate a Prince Good if his Virtues excel his Errors Besides to charge the Vices of Princes upon the Government as they usually do who affect Innovation is but a cheat For what is this but to condemn the Law for the Corruption of some Lawyers Or Agriculture because some Husbandmen do curse God for a Storm Si mentiar ego mentior non negotium If I do lye saith the Merchant in St. Augustine it is I that am to be blamed not
Common-wealth may not only be by force resisted but if it be necessary may be punished with death As it befel Pausanias King of the Lacedaemonians of whom Plutarch thus The Spartans taking to heart the death of Lysander sentenced their King to death Plut. vit Lysand because leaving Lysander out of Cowardise whom he was sent to relieve he had fled for safety to Tegra The like he records in the life of Sylla The Spartans saith he deposed some of their Kings as being unfit for Government because they were of low and abject Spirits Yea and of Agis he reports That being their King yet was condemned though unjustly Now seeing that there were in Italy diverse such Kingdoms it is no marvel that Virgil having first recorded those many wicked Acts done by Mezentius adds Th' Hetrur'ans therefore all in a just rage To bring their Kings to Judgement do engage Of whom an old Hetrurian South-sayer spake thus Whom their just Woe Arms as against a Foe IX Or against King that hath renounced his Kingdom Secondly If a King or any other shall renounce his Empire or manifestly forsake it against such a Prince or King after that time any thing is lawful that may be done to a private man But this then we must observe That he that is careless and negligent only in his Government cannot thereby only be judged to have forsaken it X. Or against a King that would alienate his Kingdom Thirdly It was the opinion of Barkley That if a King would alienate his Kingdom or subject it to another he lost it But here I make a stand For if the Kingdom be Elective or descend by succession such an Act of Alienation is in it self null And whatsoever is in it self null can have no effects of a just Right Wherefore as also of that Kingdom that is barely usufructuary whereunto I have likened such a King the opinion of the Civilians is to me more probable That in yielding up his Kingdom to a stranger he confers nothing And whereas it is said that the fruits and profits revert to the Lord of the propriety It is to be understood after such a time as is prefixed by the Law Yet notwithstanding if a King shall really endeavour to deliver up or subject his Kingdom to another I doubt not but that in this case he may be resisted For Empire is one thing and the manner of holding that Empire another The alteration whereof the people may hinder for that is not comprehended under the notion of Empire Whereunto may that of Seneca be not unfitly applyed Although our Father be in all things to be obeyed yet not in those things wherein he ceaseth to be a Father XI Or a King that Invades the whole body of the people in an hostile way Fourthly as the same Barkley observes If a King shall endeavour with a mind truly hostile the destruction of the whole body of the Nation over which he is set to govern he loseth his Kingdom and may be resisted Which I grant For the end of all Government being for mutual conservation he that wilfully resolves to destroy can have no right to Govern Wherefore he that openly either in word or deed professeth himself an enemy to the whole Nation is in that very act presumed to abjure and renounce the Government of it When Scylla had depopulated not Rome only but almost all Italy one seriously advised him that it was fit to spare some that he might have some to govern Vt essent quibus Imperassent But this case can hardly be found in any King that is of sound mind and that governs one only Nation But in case he govern more than one it may so happen that in favour to one he may endeavour to destroy the other that so he may plant it with new Colonies Plut. vit lib. Grac. Gracchus his Arguments are very Ingenious whereby he proves that a Tribune of the people being therefore accounted sacred and Inviolable because he is consecrated by the people to defend them in case he shall endeavour to oppress them to diminish their power and to take from them their rights of suffrage doth thereby actually degrade himself in not performing that for which that honour was conferr'd on him For to admit saith Gracchus that the Tribunes of the people may in some cases imprison their Consul and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it even against those from whom he received it seeing that both the Consul and the Tribune were by the people created would be very absurd The like we find asserted by Johannes Major namely That a people cannot abdicate their power of deserting their Prince in such cases as tend to their manifest destruction Both which may be very well expounded by what hath been herein already delivered XII And against him who breaks the condition upon which he was admitted Fifthly In case a Kingdom be confiscate either by Felony committed against him whose the Fief is or by any clause or condition expresly made and agreed on at his admission to the Kingdom As in case the King shall do this or that his Subjects shall then stand absolv'd from all obligation of duty and obedience unto him â Vid. Marian. de regno Arragon In this case also a King may recede into the condition of a private person XIII And against him who havlng but one part of the Soveraign power Invades the other Sixthly If a King having but one part of the Soveraign power and the Senate or people the other if such a King shall Invade that part which is not his own he may justly be by force resisted because in that part he hath not the Soveraign power Which I believe may take place although it be said That the power of making War is in the King For this is to be understood of a Foreign War since otherwise whosoever hath any part of the Supreme power cannot be denyed a Right to defend his own even by force which when it happens even the King himself may justly by the Right of War lose even his own part of the said Empire XIV And against him who grants such a Licence in certain cases Seventhly If in the Translation of the Empire it be expresly said That upon some certain events that may happen it may be lawful to make resistance For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained yet certainly it may be conceived that some kind of natural Liberty was thereby understood to have been reserved to the people and exempted from the power of the King * Thuan. l. 131. in anno 1604. Id. l. 133. an 1605. de Hângaria For possible it is for him that alienates his own Right to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements whereof we may find
to be acquired No Prescription without strong conjectures of Dereliction can lye against a King as such â within such a certain time at all appertain to the things belonging to the Supreme Power Yet might the people in the first Creation of the Empire have exprest their will by what means and in what space of time the Government by not using it should be lost which Will so exprest ought without doubt to have been followed Nor could it then have been infringed by the King himself though invested with Supreme Power because it appertains not to the Empire it self but to the manner of holding it as we have elsewhere explained it XIII What is not inseparable from Soveraignty may be got or lost by Prescription But what things soever are not essential to the Soveraign Power nor belongs unto it as its natural proprieties but may naturally be either separated from it or at least communicated with others are also subject to the Civil Laws of every people which are in force concerning Usucapion and Prescription So we read of some Subjects who have gained by Prescription that it cannot be appealed from them yet so that always some appeal may be made from namely by Petition or some such like way For that there should be no Appeal at all from any is not consistent with the condition of a Subject and therefore must needs appertain to Soveraignty or to some essential part of it nor can it otherwise be obtained than according to the Law of Nature to which the highest powers themselves are subject XIV That Subjects may at all times assert their own Liberty refuted Vasquius refuted Hence it is easie to discern how far forth we may admit of that which Vasquius and others maintain namely that Subjects may at all times endeavour if they can to recover that liberty which belongs to a free people because what was by force got may by force be regained And of that which at first proceeded from the will it is lawful to repent and to change the will for both that Empire that was at first gained by force may in time by the tacite consent of the people yielding thereunto a willing obedience receive a firm and established Right As also that will either at the first establishment of the Empire or by a postnate fact might be such as should give such a Right as should not afterwards depend upon that will It was an excellent Speech that Josephus records of King Agrippa to those Jews who from their preposterous endeavours to recover their lost liberty were called Zealots Intempestivum est nunc libertatem concupiscere olim ne ea amitteretur certatum oportuit To contend now for your liberty is unseasonable this ye should have done before ye had lost it To be enslaved to another is grievous the miseries of War are to be preferred before it But if being by the fortune of the War reduced into bondage ye attempt to free your selves Non amantes libertatis dicendi estis sed servi contumaces Ye will not be thought to affect liberty but rebellion So Josephus himself to the same Jews Honestum est pro patria pugnare c. To fight in defence of our Liberty whilst we have it is honest nay honourable but having long since lost it now to endeavour by Arms to recover it is to make our condition which was before tolerable De Cyri Inst lib. 3. now desperate Thus did Cyrus in Xenophon answer King Armenius who would fain have excused his defection by his earnest desire of his lost liberty yet notwithstanding I make no question but that a long continued patience in a King as I have above described may be sufficient for the people to recover their liberty upon a presumption of a Dereliction XV. Things merely in our power are not lost by Prescription Neither are those Rights lost by Prescription that are not exercised frequently but may be once at a time convenient as the right of redemption of things morgaged or given in pledge As also those Rights of our free liberty to do such other acts whereunto that act already executed is not directly contrary but is rather comprehended in it as a part is in its whole As in case a man hath entred into an Association with one of his Neighbours only and continued the same for an hundred years whereas he was at liberty to have done the like with others also within that time those rights of his liberty I say are not by Prescription lost until being prohibited to exercise it or compelled to forego it he obeys it and sufficiently signifie his consent thereunto which being congruous not only to the Civil Law but to natural reason may also be in force even amongst men of the highest fortunes CHAP. V. How a Right over Persons was originally gained Where also the Rights of Parents over their Children of Matrimony of Colledges or Societies of Kings over Subjects and of Masters over Servants are discust I. What Right Parents have over their Children II. This Right varyes with their Age Of Infants and what right they have over their Estates III. Of their Right over their Children being past their Infancy whilst they are in their Family IV. What coercive power Parents have over them V. What right they have to sell them VI. What right they have over them when out of their Infancy and Family VII Their power distinguisht into Natural and Civil VIII Of the Right of an Husband over his Wife IX Whether the tying up of one man to one woman inseparably be necessary to marriage by the Law of Nature or of the Gospel only X. By the sole Law of Nature the want of the consent of Parents nulls not a marriage XI By the Evangelical Law the marriage of anothers Wife or Husband is ipso facto void XII By the Law of Nature the marriage of Parents with their Children is void XIII So are marriages of Brothers and Sisters of the Mother-in-Law with the Son-in-Law c. by the Divine Voluntary Law XIV But of Kindred more remote it doth not appear that by that Law they are unlawful XV. Some of those Contracts which the Law calls concubinary may amount to marriages and be lawful XVI Some marriages though unlawful to have been done yet being done are lawful XVII Of the right of the major part of a Society XVIII Where the Votes are equal which part carries the Sentence XIX What Sentences are to be divided and what conjoyned XX. The rights of the Absent are devolved on those that are present XXI What order is used among persons equal even among Kings XXII Where diverse Societies claim unequal shares in the same thing their Votes shall be reckoned according to their respective parts in the thing XXIII Of the power that Cities have over their Citizens XXIV Whether Citizens may desert their City explained by distinction XXV No City hath power over her banished Citizens XXVI What power by
consent a man hath over his adopted Son XXVII Of the right that Lords have over their Servants XXVIII How far this right extends as to life and death XXIX What the Law of Nature determines as to those that are born unto Servants XXX Of Servitudes there are divers kinds XXXI What power by consent one Nation hath over another that freely subjects it self XXXII What right is acquired over persons for some crime committed I. The Right of Parents over their Children A Kind of Right may be gained over Persons as well as things and that either by Generation by Consent or by way of Punishment for some delinquency By Generation so both the Parents have equal right over their Children yet so that if they differ in their Commands the Father as being of the more noble Sex is to be obeyed before the Mother Of this mind was St. Chrysostom 1 Cor. 11.3 It is expedient saith he that the Wife should be subject unto her own Husband for equality in honour begets quarrels And St. Augustine also A Son born in lawful wedlock Ep. 191. is more at the command of his Father than of his Mother II. This right differs according to the age and discretion of their Children In Children we must distinguish their three different times The first is that of their Infancy whilst they are of unripe judgment not able to know good from evil not to distinguish truth from error The second is When they grow to ripe judgment but yet continue in their Fathers Family The third period is this When they are separate from their Fathers and have Families of their own During the first of these all the actions of the Child ought to be regulated by the Parents for it is but equal that he that cannot govern himself should be governed by another Vide supra c. 3. §. 6. and naturally there is none so fit to govern the Child as the Parents And yet by the Law of Nations the Child is then capable of inheriting an estate though he be justly restrained from managing of it by reason of his immature judgment This was Plutarch's observation where he saith De fort Alex. lib. 2. That Children have a Right ãâã ãâã ãâã ãâã ãâã but not ãâã ãâã ãâã ãâã ãâã to the Inheritance but not to the use of it Neither is it from the Law of Nature that all that is the Childs should be disposed of by the Parents but from the Laws of some people which do in this case sometimes distinguish the Father from the Mother as they do also between their bond and free children and between the natural issue and legitimate of which distinction the Law of Nature takes no Cognizance except only of the priviledges of Sexes where both Parents contend who shall command the Child III. The Second Period Whilest the Child is a part of the Parents Family In the second period when the Childs Judgement is ripened with his years yet abiding in his Fathers house those actions of the child only are subject to the commands of his Parents that are of moment to the well ordering of the estate of his Father or of his mothers Family For it is but reasonable that every part should endeavour the welfare of the whole But in his other actions he hath a moral power to do whatsoever his own judgement shall guide him to provided that in all things he endeavour as far as in him lies to please his parents But because this is a debt arising not by vertue of that moral faculty as those above but from the duty of piety reverence and gratitude it cannot make void those actions of his that are otherwise done no more than it will suffice to avoid any grant or gift given by the right owner to say That it was against the Rules of Parsimony IV. Of Parents coercive power During both these spaces of time Parents have a Right not to govern only but to punish and to enforce obedience from their children so far forth as they ought to be either compelled to their duty or to reform what is amiss But as to greater punishments we shall discourse elsewhere V. Their power to sell them Although the Paternal Right be so inherent in the Fathers person as that it can no ways be either taken from him or transferr'd to another yet naturally if the Civil Laws do not restrain the Father hath power to pawn or if necessity so require to sell his son Hist Goth. if he have no other way or means to maintain him Thus the Goths as Jornandes records solicitous of their Childrens safety chuse rather to preserve their lives than their liberties and therefore in Compassion thought it better to sell them to be kept and nourished as slaves than to suffer them to dye in defence of their freedome Which Right other Nations seem to have borrowed from that old Theban Law recited by Aelian which also seems to be derived from the Phoenicians Lib. 2. and also from the Hebrews and by them to the Grecians as Apollonius observes in his Epistle to Domitian For Nature it self is presumed to give us a right to all that without which that which she commands cannot be obtained VI. Their power over them when separate from them In the Third space or period that is when the Children are grown to maturity and in another Family by themselves then they are free to do what pleaseth themselves always paying the duty of piety and reverence to them which is an obligation never to be cancelled whence it follows that the acts of Kings are not therefore null'd because their parents are living VII The Rights of Parents are either Natural or Civil What power Parents have over their children more or less than this they derive from the positive Laws of men which in all Nations are not the same So by that right that God gave unto the Hebrews the power of a Father to null the vows of his Sons and Daughters was not perpetual but only during their abode in their Fathers family As may appear Numb 30.2 3 4 5 verses For otherwise the Son being parted from his Father had power at thirteen years of age to bind himself without the consent of his parents The Roman Citizens being Fathers had a peculiar power over their Sons though they were heads of their own Families The Romans gave as much power over their Sons as over Slaves Pyrrhoniorum 3. before they were made free which power they themselves confess that other people had not over theirs So saith Sextus Empericus The Roman Law-givers gave as much power to parents over their children as over their slaves for the goods of the Children were not reputed theirs but their Parents until they were manumitted in the very same manner as their slaves were Which other Law-makers rejected as Tyrannical The like doth Philo record of them All manner of power over the Son was by the Romans given to the Father
his willingness to accept of it by some outward signs which though it be usually subsequent to the tender of the giver yet may it also precede it As when a man requires that such a thing should be given him in this case it is presumed that he is willing to receive it unless it do appear that he hath altered his mind as to other things requisite as well to the transferring as to the acception of a Right in things and how both may be safely done we shall shew more fully when we treat of promises for concerning both these Nature hath prescribed the same Rules III. Empires whether alienable As other things so are Empires alienable by him in whose dominion they truly are that is as we have said before by a King whose Kingdom is Patrimonial But otherwise by the people yet not without the Kngs consent because he hath a kind of Right in it though but to the present revenue which cannot without his own act be taken from him Thus it stands with a whole Soveraign Empire IV. That the whole cannot alienate the parts that consent not to the Alienation But as to the Alienation of any one part of the whole it is further requisite that that part that is to be alienated consent thereunto For they that first entred into that society did as may be presumed contract a firm and immortal League among themselves for the defence of all those parts which are called Integrants Whence it follows that these parts are not so under their own body as the members of a natural body which cannot live without the life of the body and are therefore for the preservation of the body sometimes justly cut off But this body whereof we now speak is constituted after another manner namely by mutual consent and agreement and therefore its power over its parts depends wholly upon the will and intention of them who first instituted that society who without doubt would never have granted such a power to the whole as to abscind from it self any of its parts and to give them up into the power of another V. Nor any part over themselves but in cases of necessity Neither is it on the other side in the power of any part to recede from the whole unless it be evident that it cannot otherwise subsist For as we have said already In omnibus quae sunt humani instituti excepta videtur necessitas summa quae rem reducit ad merum jus naturae All humane constitutions give place to the Law of Nature in casâs of unavoidable necessity Almost all Nations saith St. Augustin are taught by the very voice of Nature to submit to the will of the Conqueror rather than to hazard an utter devastation And therefore as Herodotus notes In that Oath wherewith the Grecians bound themselves to be faithful to the Persians as to the Conquerour this Salvo was added Vide infra c. 24. §. 6. Nisi planè coacti Vnless they were manifestly forced to the contrary Thus we read that Anaxilaus was deservedly acquitted by the Spartans for delivering up the City Byzantium being distressed more by famine within than by the Sword without And Xenophon tells us that the Emperour Anastasius returned thanks to his Commanders for their timely surrender of the City Martyropolis thereby preventing the unnecessary effusion of blood since it was impossible to be defended Cum fame habitare virtus recusat Valour will not cohabit with famine saith Procopius neither can we expect that Nature should act vigorously Goth. l. 4. when she wants nourishment So Cephalas in his Epistle to the Emperor Alexius being straitly besieged in Larissa Yielding to necessity we must deliver up the Town to those who not only besiege us An. Commen lib. 6. but maninifestly starve us for what can valour do against the force of Nature VI. The causes of this different power Now the reason why in cases of absolute necessity every part of the society hath more right to defend it self than the body of that society can have over its parts is because that part that is so necessitated may use that Right which Nature gave it before that society was instituted which the whole society cannot Neither let any man say that the Right of Empire is in the whole society as in its subject and therefore may be alienated by it as things held in propriety may for the Government is indeed in the whole body as in its adequate Subject but not divisibly in many bodies as the Soul is in perfect Bodies But that necessity that enforceth us to flee back to the Original Right of Nature for defence cannot here have place For under that Right the free use of Nature is comprehended as eating and detaining what is ours which are natural but so is not the Right of Alienation which receiving its authority from humane institution is from it to receive its bounds VII That the Empire over some place may be alienated But as to the Empire over such a place being a part of the Territory that lies uninhabited and desart I cannot discern any reason at all why it may not be alienated either by a free people or by a King with his peoples consent For as every part of the people have equally freedom of Will so have they equally a Right to gainsay whatsoever any other would have but the Territory it self whether wholly or in its part considered is the peoples Common undivided and therefore wholly at their dispose but as to the soveraignty over any part of the people if as I have said it cannot be alienated by the whole body of the people much less can it be done by a King who though he have the full power yet he hath it not fully VIII No part alienable either for profit or necessity by a King alone And here I must crave leave to dissent from those Civilians who hold that no part of an Empire can be alienated by a King unless it be for publick profit or out of necessity unless they understand it in this sence that where the profit doth equally aâcrew both to the whole Nation and to that part which is to be alienated the consent of both may easily be collected from their silence though of no long time which may much more easily be presumed if there appear likewise a necessity for it But if either part do manifestly declare against it there can be no Right to alienate unless the part be evidently enforced either to separate from the whole or suffer themselves inevitably to be destroyed IX Infeudations and Morgages of the parts of the Empire unlawful Under Alienation is deservedly comprised even Infeudations under penalty of confiscation for breach of Faith given to the Lord of the Feoff or when the Family is extinct * Sub onere commâssaeâ feloâia aut deficiente familia Vide l. 1. c. 4. §. 12. For even this is a conditional Alienation wherefore we often see
Kingdom of Epirus by the Judgement of his Father Pyrrhus having no lawful Issue Paus l. 1. The Tartars make no difference between Bastards and them that are Legitimate So Herodotus of the Persians Mos est illis ut Nothus regnet dum legitimus aliquis reperitur Who admit of Bastards till one that is legitimate may be found And we read in Justine of a Treaty between King Atheas and Philip concerning the Adopting of Philip to succeed him in the Kingdom of Scythia Jugurtha though a Bastard Salust bell Jugurth yet succeeded in the Kingdom of Numidia by Adoption The like we read of those Kingdoms which the Goths and Lombards conquered that the succession often passed by Adoption Nay Paul Diac. l. 6. de gest Longob the succession to the Kingdom shall pass to the nearest of kin to him that last possest it though he were nothing of kin to the first King If any such succession be in force in those places Thus did Mithridates in Justine plead That Paphlagonia became his Fathers Inheritance by the death of all its domestick Kings XIII In Kingdoms that are Indivisible the eldest succeeds But in case express caution be given that the Kingdom shall not be divided and yet it be not exprest who shall succeed then the Eldest whether Son or Daughter shall enjoy the Kingdom So saith Nicetas Coniates Nature indeed observing her own order gives the greatest honour to the first-born But God hath a Prerogative above Nature and acts not alwayes by her order And speaking of Isaacius he saith That by his birth-right the succession to the Kingdom was his The like is said of Hircanus in Josephus In the Talmud under the Title of Kings we read That he that hath the best title to an estate of inheritance hath also the best title to the possession of a Kingdom and therefore the eldest Son is alwayes preferred before the younger Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne And in another place he terms it the Law of Kingdoms Livy makes mention of two Brethren Allobrogi contending for a Kingdom whereof the younger had the worst Title but the greatest Power Of all Darius his Sons Artabazanes being the first-born claimed the Kingdom as his birth-right Quod Jus ordo nascendi Natura ipsa gentibus dedit Which Right saith Justine both the order of birth Lib. 2. and Nature it self hath given to Nations which in another place he calls the Law of Nations Lib. 40. As Livy also saith It is a priviledge due by the order both of Age and Nature yet must this be understood with this restriction unless the Father by his Testament do otherwise dispose of the succession as Ptolomy in Justin did his Kingdom to his youngest Son But yet he that shall thus succeed is bound to gratifie his Brethren for their shares with all respect and honour if and as far forth as he shall be able to do it XIV A Kingdom by the peoples consent hereditary if in doubt is presumed to be indivisible But those Kingdoms that by the Peoples free consent are made hereditary may by guessing at the will of the people be transferred Now because it may easily be presumed that the people will give their consent to that which is most expedient therefore in the first place it will follow That unless some Law or Custome do otherwise determine as in many it hath and may do the Kingdom should stand entire and undivided because whilest so it will be the better able both to defend it self and to conserve the people in peace and unity Lib. 21. A Kingdom united is stronger than when divided Of this opinion was Justin Firmius futurum esse regnum si penes unum remansisset quam si portionibus inter filios divideretur arbitrabantur They judged that the Empire would be more firm being intirely possest by one than it could possibly be if divided amongst many Sons XV. The succession not to last beyond the line of the first King Again It being granted that the peoples consent is easily gained to what shall be most expedient it will in the next place follow That the succession should descend from the first King in a right line Because that Family was then electeed as being thought the most Noble which Family being extinct the Kingdom doth return back to the people Thus Curtius adviseth * Lib. 8. That the Soveraign Power be strongly fixt to one Royal Family which ought to claim by an hereditary Right For the people being so accustomed will not only reverence his person but will have the very name of their King in great esteem And therefore no man ought to usurp that dignity but he that was born unto it XVI Natural Issue not concerned in it Thirdly It will thence likewise follow That none should be admitted to succeed in the Royal Throne but he that is born Legitimate Not the Natural Sons because they are subject to be reproacht to whose Mother the Father did never vouchsafe the honour of marriage And therefore of such there can be no certainty who was the Father But in the succession to Crowns the people ought to have the greatest assurance that in such a case can be given to avoid Controversies For which cause it was that the Macedonians preferred Demetrius the younger Son to the Throne rather than Perseus the elder because he was born in lawful Wedlock Not Sons by Adoption because the people are apt to conceive greater hopes and to have their Kings in greater esteem and veneration when they know them to be descended from a Royal Stock Est in Juvencis est in equis patrum Virtus In Horse and Oxe we may descry The Syre's Generosity XVII Males preferred before Females in the same degree Fourthly That of those that have equal Title to the Inheritance either as being in the same degree or as succeeding to their Parents who were in the same degree the Male Issue be preferred before the Female because Men are fitter for War and to administer other Regal duties than Women can be XVIII The elder before the younger Fifthly That of Sons or of Daughters if there be no Sons the elder be preferred before the younger because it may easily be believed that as he is of more years so he either then is or may sooner arrive to be of sounder Judgement than the younger So Cyrus in Xenophon Imperium relinquo majori Natu I bequeath my Kingdom to my Eldest Son as being of most experience and consequently best knowing how to govern And because our green years will sooner ripen than our Sex change therefore the prerogative of our Sex is much to be preferred before the priviledge of our Age. Wherefore Herodotus where he tells us Lib. 7. that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom gives this as the reason Because
Oligarchical or Democratical that is of King Nobles or People The Romans were but the same people whether under Kings Consuls or Emperors yea though the Government be never so absolute yet are the people the same they were as when they were free so long as he that governs governs as the Head of that people and not as the Head of another For that Soveraign Power which resides in the King as Head rests in the people as in the whole body whereof the King is the Head so that if the King being elected should dye or if the Royal Family be extinct the Right of Government recedes back to the people or to whom they grant it Neither is that of Aristotle to be objected against me who denyes that to be the same City the form of whose Government is changed As the Harmony cannot be said to be the same that is changed from the Dorick to the Phrygian way For we ought to know that of any one artificial thing there may be several forms As of a Legion or Regiment there is one form whereby the Souldiers are governed and another wherein they fight So there is one form consisting in a Consociation of Right and Empire and another in relation to the parts between themselves as those that are governed and of those that govern This latter the Politician respects as the Lawyer doth the former Pol. l. 2. c. 3. Neither was Aristotle himself ignorant hereof who presently adds But whether the Form of Government being changed all debts and reckonings be discharged or not is a question belonging to another Art which Aristotle would not confound with his Politicks lest what he blamed in others he should practise himself making a transition from one kind of Treatise to another Surely a debt contracted by a free people ceaseth not to be a debt because they have admitted of a King for the people are the same and do still retain the Right and Dominion of those things that formerly were theirs yea and the Empire too A King newly admitted shall take that place in General Councils that the Nation when free formerly enjoyed though now it be not exercised by the body but the head whence we may easily determine that Controversie which is sometimes started concerning his place in General Councils who is newly made a King over a Nation formerly free namely that he is to be admitted into that very place which that Nation enjoyed whilst it was free as Philip of Macedon in the Great Council of Amphictyon took that place that was due to the Phocenses so on the other side That place which formerly belonged to the King the people shall succeed in being made free IX But if two people or Kingdoms be united the Rights shall not be lost but câmmunicated as the rights of the Sabines first and afterwards of the Albanes were transferred into the Romans and so were made one Common-wealth as Livy records The same may be said of Kingdoms being conjoyned not in League nor as having but one King but being perfectly made one X. Or one be divided But if a Nation or Kingdom be divided either by mutual agreement or by the Sword as the Persian Kingdom was by Alexander's Successors then of one entire Empire there shall be made two or more and each shall enjoy its peculiar right over its particular parts Or if any thing shall be held in common it shall be either ratably divided between them or else be administred in common Hither we may refer those who are sent out to plant Colonies For this is usually the rise of a new free people Coionies usually the Rise of a free State Vid. sup B. 1. C. 3. §. 1. L. 4. For we do not as Thucydides notes send them out as our servants but as those who have equal right with our selves And thus did King Tullius in Dionysius Halicarnassensis judge this case That the Mother Cities should govern their Plantations abroad absolutely as if by the Law of Nature we conceive to be neither true nor righteous yet ought they to reverence them as the Carthaginians did the Tyrians their first Founders as Curtius testifies XI Where the old Roman Empire now resides It is also a famous Question much controverted both by Historians and Civilians To whom the rights belonging formerly to the Roman Empire do now appertain Some say to the German Emperor which by I know not what deputation they place in the room of it But it is sufficiently known That the Great Germany namely that which lyes beyond the Rhine was but a little while within the pale of the Roman Empire And to translate the rights of Kingdoms from one to another without certain and evident proofs seems to me to be too great a presumption Wherefore I am of opinion that the Roman people are now the same they were of old though somewhat mixt by the access of Foreigners and that the Empire doth still remain with them as in a Body Politick wherein it was and should live For whatsoever the people of Rome had of old a right to do before they had Emperors that they had the same right to do in their Interregna or vacancy of their Emperors Yea and the very Choice of their Emperors was their right who were often made either by the people by themselves or by the Senate yea From a Fleeting power no Right can be certain It is of dangerous consequence for Soldiers to elect their Generals and those Elections which were made by the Roman Legions as such there were sometimes by these and anon by others were not firm nor stable by any right that those Legions had for from a Fleeting power no right can be certain but by the approbation of the people When the two Roman Generals Publ. and Cn. Scipio were both slain and the Army had chosen L. Martius a valiant young Gentleman their Captain General though he had vanquished two several Armies of the Carthaginians and forced their Camps yet notwithstanding when in his Letters to Rome he had assumed that Honourable Title of Pro-Praetor the Senate considering that his Command was neither granted by the people nor allowed of by themselves were much offended at his presumption in usurping it fore-seeing well that it was a matter of dangerous consequence for Soldiers abroad to make choice of such as should command Armies and Provinces And that the solemnity of Elections so devoutly begun in the name of their Gods should now be transferr'd into Camps far from Laws and Magistrates But yet we have many examples of Elections made by their Armies but so as they were afterwards approved of and confirmed by the Senate as were those of Adrian Pertinax Julian Severus Macrinus Maximinus Baldinus Aurelian and others Capitolinus records an Epistle of Albinus concerning the right of the Senate in the Election of their Emperour and another of the Senate concerning the Gardiani Macrinus in an Oration thus bespeaks the Senate concerning
some Contracts which have some resemblance of Usury and are vulgarly so accounted which yet are of another kind As when the lender requires somewhat to repair the damage he hath sustained either by reason of the long detention of his money lent or being frustrated of the hopes of gain that he might have made by it deducting notwithstanding somewhat in respect of the incertainty of those hopes and also for the labour and hazard he must have run for it So likewise to defray the charges of him that lends money to many and to that purpose keeps his money ready with his Books of Account and for the danger he runs of losing the Principal where it is not sufficiently secured If any thing in these Cases be required it is not to be reputed Usury And if we would know what opinion the Roman Lawyers had of it we shall find that as they hated the word Foenus so they would easily admit of Vsura Vsura non propter lucrum petentium sed propter moram solventium Not that the lender desired to make again by the wants of the borrower but because his money is not paid at the time agreed on The difference being only this Foenus and Usura how distinguisht Foenus is that which we contract for more than the principal meerly out of a desire of gain But Vsura is that which is given more than the principal lest the lender should be damnified by the detention of the principal But since this word Vsura being abused by some hath gotten an ill report therefore hath this latter Age substituted in its room the word Interest Demosthenes in his Oration against Pantaenetus denyes peremptorily that he deserves to be branded with the name of an Usurer that lends what he hath got either by merchandizing or by his honest labour sub modico lucello for some moderate gain partly that he may keep what he hath so got and partly that thereby he may gratifie another It is recorded of Germanus Kinsman to Justinian That he lent money to every man that needed it to be imployed Goth. l. 3. but never took any thing that deserved the name of Usury True it is that the Scriptures the Fathers the Canon Law and the Decretals do all declaim against Usury so do the Civilians Baldus calls it a profitable Theft or Piracy Bartolus condemns all Usury so do the Roman Emperours and most Common-wealths yet are they contented to tolerate it being restrained and moderated The Hebrew word Nishech signifies a biting or grinding Usury such a lending of money as under the pretence of Charity devours the poor borrower The matter that binds the Conscience is the Debtors gaining nothing by the money lent and not the taking of much or little Interest It is a more biting Usury to take 2 or 3 per Cent. of him that gets nothing than to receive 6 or 8 of him that makes thereof a greater gain which was the cause that among the Romans he that took Usury of the poor was more punished than he that robbed the rich No man is by the Law bound or so much as admonished to lend to those who have no need And in case another man gain by what is mine Natural equity requires that I should be a gainer by so much as he by my means is made the richer Again If to a man that stands in present want I lend freely until such a time prefixt if he fail then of payment and I thereby incur any damage it is reason that he should satisfie the damage and so Interest may be due ex damno habito for the loss I sustain Also if a Tradesman lend his money which he can spare till such a Mart to be then paid and the borrower fail in his payment whereby he is disabled to drive on his Trade for the next year then shall he be bound to satisfie the damage the lender sustaineth propter lucrum cessans by reason that our hope of gain ceaseth Again four men are Partners in one Shop two being Aged supply Money the other two being young and active do take pains to improve it if they by their labour and care gain 20 or 30 per Cent. and pay the other two being past their labour 6 or 8 per Cent. for their Maintenance Can this be called Biting Usury If it be objected That the two lenders take no pains nor run any hazard I answer Yes they did doubtless take pains when they were able and they do now run an hazard by lending their money to them that are painful but have nothing It is recorded by Procopius to the honour of Germanus Proc. Got. l. 3. a Kinsman of Justinian's That he lent great sums of money to be imployed by such as needed it but never took any thing that deserved the name of Usury Our King Edgar forbad Usury and Edward the First sent away all the Bankers whom Gregory the Tenth had sent out of Italy into England and placed in Lumbard-street Henry the Eighth allowed 10 per Cent. for one year which Edward the Sixth repealed Queen Elizabeth tolerated 10 per Cent. so did King James which Charles the First reduced to 6 per Cent. which yet continues XXII What power the Civil Laws have determined in the case But these humane Laws that tolerate a moderate gain for the use of money or any other thing as in Holland they permit 8 per Cent. to some and 12 per Cent. to Merchants for a year as a reasonable compensation for that loss which the lender doth or may sustain by the forbearance of his money are no way repugnant to the Laws either Natural or Divine But if they exceed this rate those Laws may afford Impunity but no just Right XXIII How Contracts concerning ensurances are to be valued A Contract for the ensuring of Goods from Casualties either by Sea or Land is altogether void if either of the Contractors do know that the Goods are already safely arrived at the Port or place whither they were bound or that they are perished by the way not only in respect of that parity or equality of knowledge that there should be between such Contractors but in respect of the subject matter of such a Contract which is a loss but uncertain which in respect of both parties may or may not be But at what rate these Goods are to be secured depends upon common estimation XXIV How in Societies with their several kinds In social Negotiations where traffick is maintained by the joint Stock of a Company if every member contribute an equal proportion in money their gain or loss shall also be equal but if their proportions be unequal every member shall be rated according to his proportion The like is to be observed where the traffick is to be maintained by joint service accordingly as the service is by agreement either equally or unequally to be performed But yet in such Negotiations services may be set against money
that our Saviours words signifie no more than what Philo's the Jew did It is an excellent thing saith he and most agreeable to Rational men De Decal so to accustom themselves to speak truth That their bare words may carry as much authority as other mens Oaths And in another place he saith That a good mans word is as firm immutable and void of deceit as if he had confirmed it with an Oath So likewife Josephus testifies of the Esseni That whatsoever they affirmed upon their words was as true as if they had affirmed it upon their Oaths And therefore to swear was unto them superfluous And from these Esseni or from those Jews that followed them Pythagoras seems to have learnt it where he saith We must not swear by the Gods but every man sbould be so careful of his word and credit that he may be believed without an Oath It was the advice of Chrysostome If thou dost believe that he with whom thou hast to deal De stat 15. is honest and faithful urge him not to swear but if thou suspect him for a lyar urge him not to forswear The Scythians in Curtius told Alexander That it was not the custom of the Scythians Gratiam jurando sancire to purchase his favour or establish their own peace by Oaths For saith Curtius Colendo Fidem Scythae jurant The Scythians are so great admirers of truth and Fidelity that their bare words do oblige them as firmly as and their deeds confirm their promises more than their Oaths Cicero in his Oration for Roscius Comoedus tells us that look what punishments the Gods awarded to a perjured person the same they awarded to a Lyer For it was not the form of words wherein the Oath was comprehended that provoked the Gods unto vengeance but the malice and perfidiousness of the heart wherein all Treacheries and forgeries are minted It is excellent Counsel that Solon gives us That we should have so great a regard to our own honesty that our words may be as Authoritative and convincing as our Oaths Thus Clemens Alexandrinus describes a just man to be one that evidenceth the truth of his promises by the sincerity and constant stability of his words and actions Cicero records it of a certain Citizen of Athens that being known to be of a Religious and upright conversation Orat. pro Baldo and being to give his publick testimony upon Oath was not permitted so to do but as he approached near the Altar to that purpose all the Judges with one voice cryed out That he should not swear being unwilling to give more credit to his Oath than to his word Very pertinent to the meaning of our Saviour where he saith Swear not at all is that saying of Hierocles He that in the beginning said Thou shalt reverence an Oath did therein enjoyn us to abstain from swearing concering such thing as are contingent and of uncertain events For such things are so mutable and of so small an account that they are not worth an Oath neither is it safe to swear about them And Libanius inserts this amongst many other Vertues for which he highly extols a Christian Emperor That he was so far from Perjury that he feared to swear to what he knew to be truth A perjurio tantum abest ut etiam vera jurare vereatur XXII Faith may be given without an Oath Therefore in some Nations instead of Oaths they give unto each other their right hands which among the Persians is the strongest assurance of Faith that can be given And amongst other people they oblige themselves by other signs and that so strongly that unless he that shall so oblige himself do fulfill his promise he is held as execrable as if perjured But especially of Kings and Princes it is usually said that their faith given is as good as an Oath For such they should be that they may say with Augustus Bonae fidei sum I have a clear Reputation And with Eumenes I had rather lose my life than break my Faith Whereunto Gunther alludes where he saith No Oath more Sacred than the word of Kings Whereunto we may add that of Alexis Comicus If I but nod 't is firm as though I sware This testimony Isocrates gives of King Evagrius That he kept his word as Religiously as he did his Oath Cicero in his Oration for King Dejotarus highly commends Cajus Caesar for this That if he gave to any man his right hand it was sufficient to confirm any Promise that he made whether in Peace or War And in those Heroick times The elevation of the Royal Scepter was equivalent to the Oath of a King as Aristotle notes CHAP. XIV Of the Promises Contracts and Oaths of Soveraign Princes and States I. The opinion of some who hold that Restitutions to the full arising from the Civil Law appertain to the acts of Kings as such refuted as also this that Kings are not bound by their own Oaths II. To what Acts of Kings the Laws extend explained by distinction III. When a King is bound by his Oath and when not IV. How far forth a King is bound to what he hath promised without cause V. The use of what hath been said concerning the force of the Laws about the Contracts of Kings VI. In what sense a King may be said to be obliged to his Subjects by the Law of Nature only or even by the Civil Law VII A Right gained to Subjects how it may lawfully be taken away VIII The distinction of Things gained by the Law of Nature and by the Civil Law rejected IX The Contracts of Kings whether they be Laws and when X. How by the Contracts of Kings they that inherit all his Goods stand bound XI How by those Contracts they that succeed in the Kingdom may stand bound XII And how far XIII The free Grants of Kings when revocable and when not XIV Whether the true Kings be bound by the Contracts of them that invade or usurp the Kingdom I. Whether Kings may rescind their own Acts. THe Promises Contracts and Oaths of Kings and of such others as have the like Soveraign power have some questions peculiar to themselves as well concerning what power they have over their own Acts as concerning what they have over their Subjects as that which they have over their Successors As to the first of these it is questioned Whether the King himself hath the same power to restore himself to the full or to make void his own Contracts or to absolve himself from his Oath as he hath his Subjects Bodine was of opinion that a King being circumvented by another mans fraud by fear or error may for the same causes be restored to his own Rights as well in things appertaining to the lessening of his Prerogative as a King or in things appertaining to his private Estate as his Subjects may Whereunto he addes That a King is not bound by his Oath if the Contract agreed
distinction to be observed where there is any probable reason for giving or otherwise alienating what is the peoples But in case the King shall by any Contract go about to alienate any part of his Kingdom or of the Royal Patrimony beyond what is permitted unto him such a Contract shall be of no force as being made of that which was not his to dispose of As much may be said of such Kingdoms as are limited and restrained if the people have exempted any either matter or kind of acts from the power of their King For to make such acts valid the consent of the people or their Representatives is necessarily required as we have already shewed when we discourst of alienations Now these distinctions being observed it is no difficult matter to judge Whether the exceptions of Kings who refuse to pay their Predecessors Debts whose Heirs they are not be just or unjust whereof we may read many examples in Bodine XIII Of the Grants of Kings which are revocable and which not Neither is that which some affirm to be admitted without a distinction namely that the benefits of Princes which are freely and liberally granted may at any time be revoked For some benefits a King may give out of what is his own and which were it not for this clause at the prayer or request of the Grant might well pass for a perfect Donative Now these cannot be revoked unless from Subjects by way of punishment or for publick good for which also satisfaction must be given out of the publick stock if possible But other benefits there are which only take away the binding power of the Law without any Contract and these are revocable For as a Law universally taken away may always be universally restored so also being particularly taken away it may be particularly restored For no Right is here acquired against the Law-maker XIV Whether the right King be bound by Contracts of an Usurper But by such Contracts as are made by Usurpers or such as without any just title invade a Kingdom neither the people nor their lawful Prince are obliged For such have no right at all to bind them Yet even these also shall be bound by those Contracts so far as they are enriched by those Contracts CHAP. XV. Of Leagues and Sponsions I. Publick Agreements what they are II. Divided into Leagues Sponsions and other Conventions III. How these differ and how far Sponsions oblige IV. Menippus his division of Leagues rejected V. Leagues divided into such as oblige unto things agreeable to the Law of Nature and from whence this ariseth VI. And unto things thereunto added which are either equal VII Or such as are unequal which again are divided VIII Leagues made between those of a different Religion by the Law of Nature are lawful IX Nor are they universally forbidden by the Hebrew Law X. Nor by the Christian Law XI Cautions concerning such Leagues XII All Christians are obliged to enter into a League against such as are enemies to Christianity XIII If diverse of our Confederates are at War which we ought to assist explained by a distinction XIV Whether a League may be understood to be renewed tacitely XV. Whether the breach by one Party do free the other from being obliged XVI How far the Sponsors stand obliged in case what they undertake for be refused XVII Whether a Sponsion being known but not refused do oblige by silence This explained by a distinction I. Publick Conventions what they are ALL agreements are by Vlpian divided into such as are publick or private The publick he expounds not as some think by a Definition but by Examples The First whereof is that whereupon a Peace is concluded The Second is that whereon the Generals on both sides do agree among themselves about some things touching the War By Publick Agreements he understands those which cannot be made but by such as have the Right of Empire either Greater or Lesser whereby it is distinguished not only from the Contracts of private persons but from the Contracts which Kings make in their private affairs although even from these private Contracts a War is sometimes occasioned but oftner from the publick Wherefore since we have sufficiently treated of Conventions in general we will add thereunto some things concerning this kind which of all others is the most excellent II. How divided Now these publick Conventions which the Greeks call ãâã ãâã ãâã ãâã ãâã we may divide into Leagues Sponsions and other Pactions III. The difference between them The difference between Leagues and Sponsions we may learn out of the ninth Book of Livy where he tells us That Leagues are such agreements as are made by the Command of the Supreme power and whereby the whole Nation is made liable to the wrath of God if they infringe it And this among the Romans was wont to be performed by Heraulds in the presence of the King of the Heraulds But a Sponsion is where the Generals having no order from the Supreme Power to conclude any thing about such a matter do yet promise and undertake something concerning it In Salust we read thus The Senate as it is very fit have decreed That without their and the peoples Command no League shall be made Lib. 24. Hieronymus King of Syracuse as Livy relates contracted friendship with Hannibal but he sent afterwards to Carthage to make of that Alliance a perfect League Wherefore that of Seneca the Father where he saith Cont. l. 4. c. 29. In that the Emperour struck up a League the Roman people may be said to strike it up and to be concluded by it must be referred to those ancient Consuls or Generals who had received special Order from the Senate and People of Rome so to do But in Monarchical Estates See Book 3. ch 20. §. 2. the sole power of making Leagues is in the King According to that of Euripides Adrastum hunc opus Jurare Namque is jus habet regni potens Vt civitatem foedere obstringat suo This Adrastus ought to swear I say Who being their Soveraign the whole City may Oblige this League for ever to obey Now as Inferiour Magistrates cannot oblige the people so neither can the minor part of the people oblige the whole But let us here enquire how far forth they are bound who not having the peoples Right shall yet undertake that which the people only have a Right to do Some may think that if the Sponsors use their utmost endeavour to effect that which they have undertaken they have preserved their Faith according to what we have already said Vid. sup ch 11. §. 22. of Promises made for the fact of a third person But the nature of the business concerning which this Contract is made requires a stricter obligation For no man in Contracts will either give or promise any thing of his own but expects that something shall be performed unto him in lieu thereof Whence it is that by
as they are a Nation and all Kings as they are Kings should sympathize with their Neighbour Nations and Kings that are oppressed Neither is every person more bound to defend his own members than Princes are in obedience to Christ to defend each other with that power which he hath given them But this duty neither Kings nor People can well perform whilst Christendom is invaded by the Enemies of Christ unless they do mutually assist each other which can never be done successfully unless they strongly confederate together for that end And such a General League between Christian Princes hath heretofore been made whereof the Roman Emperor was by general consent chosen General whereby all Christians were obliged to contribute either Men or Mony according to their power as to the defence of Religion which is or ought to be the common cause for the neglect whereof I cannot see how any people can plead excuse unless it be such as are engaged in an inevitable War or afflicted with some other general calamity at home XIII If our Confederates are ingaged in several Wars which we ought to assist Another Question doth often arise namely in case two Nations are engaged in War one against the other and both are our Confederates whether of them we are bound to help Where in the first place we must remember what we have already said that ad Bella injusta nulla est obligatio No League can bind us to a War that is unjust He therefore is to be preferred that hath the juster cause if the War be against a stranger Prince yea if it be against another Confederate The words of him that swears Fealty to another are these Si scivero velle te aliquem juste offendere inde generaliter aut specialiter fuero requisitus meum tibi sicut potero praestabo auxilium If I shall understand See Book 3. chap. 25. §. 4. that thou wilt make an offensive War against any man upon a just ground and that I am either generally or specially required to give thee mine assistance I shall do it to my utmost power Thus Demosthenes in his Oration concerning Megalopolis The Athenians are bound by their League to aid the Messenians their Confederates against the Lacedaemonians their Confederates if the Lacedaemonians were the first Aggressors which holds true unless in our Articles it shall be expresly forbidden to send out any aid against such a Confederate Polyb. l. 6. In that Agreement which Hannibal made with the Macedonians there is this Clause Hostes erimus hostium exceptis Regibus Civitatibus c. Quibuscum foedus nobis amicitia est Enemies we shall be to thine Enemies except only such as are in League and Amity with us If two Nations be at War and both our Confederates and neither of them have a just cause which may so happen we are to stand Neuters and to assist neither So Aristides If either of our Confederates had required our aid against strangers it had been readily granted but if against one another we desire to stand Neuters Leuctrica If both our Confederates be engaged in a just War against strangers and both send for Aid if we are able we must send to both either Men or Money But if a Prince shall be required by both to aid them in his own person having so promised then because his person cannot be divided it is but reasonable that he should prefer him with whom he hath contracted the ancienter League As the Epirots answered the Lacedaemonians in Polybius The like answer was given to the Campanes by the Roman Consuls In contracting friends it is fit that we take care that the new do not supplant the old The Ancienter the Leagues are the more Inviolable Thus Ptolomy answered the Athenians in the like case Amicis ferenda Auxilia contra hostes non contra amicos We are to aid our Friends against Enemies but not against our Friends Which also will admit of this exception unless the latter League do bind us farther than our bare promise for it may include a translation of the Government and imply somewhat of subjection And thus we say that in selling of Goods the first sale is the best unless the latter shall also transfer the property and dominion So Livy of the Nepesines That the faith given upon their surrender bound them faster Deditionis quam societatis fides sanctior than that given by former Leagues as to their Associates Some there are that do more nicely distinguish between these But what I have said I take to draw nearest as to simplicity so also to truth XIV When renewed A League for a certain time prefixt is not easily presumed to be renewed through silence unless such acts intervene which cannot otherwise be understood for a new obligation is not easily to be presumed XV. The League is void if either party break it If either party violate the League the other party is freed because each Article of the League hath the force and vertue of a Condition Thus Thucydides determines it They saith he are not the first breakers of the League who being deserted seek for aid to others but they that perform not by their deeds what they have promised to do upon their Oaths And in another place Si vel tantillum ex dictis pars alterutra transgrederetur rupta sunt pacta If either party shall transgress the Articles they have sworn unto never so little the League is broken This also is true unless it be otherwise provided by the League as it usually is lest what is seriously debated and solemnly sworn should be adjudged to be broken upon every rash offence XVI How far Generals engaging are bound if the Prince refuse Sponsions are such promises or undertakings as Generals make without the consent of their Soveraign for the performance whereof they engage themselves or give hostages till it be confirmed by their Prince or Senate The subject matters whereof are as diverse as of Leagues They differ from Leagues in the dignity of those that make them Concerning these Engagements two Doubts usually arise The first is If the matter engaged for be refused by the King or State how far forth are the parties engaged bound Whether to make up what the King or State shall not think fit to grant or to restore all things to the same state and condition as they were in before such agreement was made or to deliver up their own bodies and the hostages to the Will of the Enemy The first whereof is most agreeable to the Civil Law of the Romans The second to Equity and Reason which we find urged by the Tribunes of the people in the Caudine Controversie The third is most approved of by Use and Custome as appears by the examples of the two notable Sponsions made at Caudis and Numantia But by no means may we admit The Sponsions made at Caudis and Numantia that either the King or
Embassador admittance and he may command him to depart his Kingdom if he behave himself seditiously but that none should be without cause denyed Now causes there may be First from him that sends Secondly from him that is sent and Thirdly from the matter of Embassage As to the first we read that Pericles dismist Melesippus the Lacedaemonian Embassador beyond the Territories of Athens because he came from an Armed Enemy And the Roman Senate denyed admission to the Carthaginian Embassador Vid. Camden An. 1571. Quaest 4. Livy l. 41. Zonaras because they had an Army in the heart of Italy So did the Achaians to the Embassadors of Perseus because he attempted a War against the Romans The like did Justinian to the Embassadors of Totilas and the Goths in Vrbin to the messengers of Belisarius And the Embassadors of the Scythians because they were a people notoriously wicked were in all places repulsed as Polybius testifies As concerning the second cause i. e. from the person sent an example we have in Theodorus the Atheist to whom Lysimachus refused to give Audience though he came as an Embassador from King Ptolomy The like hath been done to others for no other cause but personal hatred The third is when the ground or reason of him that sends is suspected to move Sedition as was that of Rabshakeh rejected by Hezekiah Rabshakeh's Case 2 Kings 18. and the like Or when the matter or form is not well suited to the digniây of the person with whom we treat or not so well timed So the Romans forbad the Aetolians to send out any Embassadors without their Generals permission And Perseus was forbidden from sending any Embassadors to Rome but only to Licinius so they commanded the Embassadors of Jugurtha to depart out of Italy within ten dayes unless they came to deliver their King and Kingdom into the power of the Romans So the Emperour Charles the Fifth commanded the Embassadors sent to denounce War against him from France Venice and Florence to be conducted to a place thirty miles distant from his Court as Guicciardine records it Lib. 18. And thus may those Ordinary Embassadors which are constantly resident in most Courts be worthily rejected as unnecessary and a new upstart custome whereof former Ages were wholly ignorant IV. Against such Embassadors as raise Sedition our defence is lawful but not their punishment Concerning the latter priviledge of Embassadors namely That they should not be molested the question is more arduous and knotty and by the best Wits of this Age variously handled In the stating whereof they have respect First To the persons Secondly To their Attendants Thirdly To their Goods As to their Persons some think that they are to be protected against all unjust force only esteeming their priviledges to be understood of Common Right Others are of opinion that the persons of Emperours are not for every cause to be molested but only when they themselves do violate the Law of Nations which opens a door so wide that all delinquencies are punishable in Emperours except such as are committed against the Civil Law For in those committed against the Law of Nations are contained even those that are committed against the Law of Nature Others do yet restrain this force to those who shall be found to act any thing against the State of the Common-wealth or against the honour and dignity of the person to whom they are sent which some think to be of dangerous consequence and therefore would have complaint made to him that sent them and the Embassadors sent home to be by him punished Others there are who think it fit in this case to appeal to other Kings and Free States that are not concerned desiring their advice therein which indeed may stand with prudence but not to be imposed upon us as a Law The Arguments which every one of these do bring to strengthen their several opinions do conclude nothing certainly Because this Right is not grounded upon reasons that are certain as the Law of Nature is but it receives its bounds from the consent of Nations Now the Nations may either altogether provide for the safety of Embassadors or with some certain exceptions For advantages may by either of these arise to the Common-wealth By this latter the punishment inflicted upon such as notoriously offend deters others and secures the peace of that Nation By the former the profit ariseth to the State by Embassies which are the more easily and willingly undertaken when the persons sent are encouraged thereunto as knowing that the greatest care that can be is taken for their security we are therefore to observe how far forth the Nations did agree in this point which cannot be evinced by examples alone For of these we have enough extant on either side we must therefore have recourse herein as well to the Judgement of the Wisest Men as to our own most probable conjectures For the Judgement of the Wisest Men are guided by two notable precedents one out of Livy the other out of Salust That out of Livy by the Embassadors of Tarquine who pretended only to treat with the Senate about some of Tarquine's Goods but were found conspiring with the Citizens to betray the City And when it was moved in the Senate What should be done with them It was at length resolved on That though they deserved to be proceeded against as enemies yet valuit Jus Gentium The Law of Nations must be preserved Whence we may conclude That by the Law of Nations Protection is due unto Embassadors though they should be found plotting against the State they are sent unto That in Salust doth more immediately respect the Concomitants of Embassadors than Embassadors themselves and yet by an Argument drawn from that which is less credible to that which is more may serve to prove what the Law of Nations allows to Embassadors in the case aforesaid Salust speaking of Bomilcar who came to Rome as an Assistant in the Embassage but was found stirring up the Citizens to Rebellion saith thus Fit reus magis ex aequo bonoque quam ex jure Gentium He was made Guilty rather by the Rules of Equity than by the Law of Nations Where by aequum bonum is meant the meer Law of Nature which requires that he that doth evil should suffer for it being found But the Law of Nations excepts from this General Rule Embassadors and such as like them come upon the security of the Publick Faith Wherefore it is contrary to the Interest of the Law of Nations that Embassadors should be held guilty as many other things are which are permitted by the Law of Nature Our conjectures also may be thus guided Most probable it is that the priviledges granted to Embassadors are somewhat more than what is due unto others by common right But in case they are no longer to be secured than whilst they live regularly what have they more than others Besides the benefit that
accrews unto the Common-wealth by securing their persons doth by much preponderate that which we may hope for in their punishment For his punishment may be required of him that sent him if he be willing which if refused then we can but make War upon him as being accessary to the crime by his approving it But some will object That it is better that one should be punished than a multitude engaged in a War But if he that sent the Embassador do approve of his Fact the punishment of the Embassador cannot free us from the Danger Now whether it be safest for the Common-wealth to connive and dissemble the fact or to run the hazard of a War will be the question On the other side the safety of Embassadors would be but slenderly provided for if they were to give an account to any but unto him that sent them For since the designs of them that send Embassadors and of those to whom they are sent are for the most part diverse if not contrary it cannot possibly be but that some of their Actions will seem to be criminous And although some are so manifest as not to admit of any doubt yet is the universal danger sufficient for the equity and benefit of an universal Law Wherefore mine opinion is That by the Consent of Nations that Common Custome which requires that every man that resides in a Foreign Countrey should conform himself to the Laws and Customes of that Countrey should except Embassadors who as they are imagined to be the persons of them that send them for so speaks Cicero of a certain Embassador Senatus Faciem secum attulerat He brought with him the Majesty of a Senate the Authority of a Common-wealth So may they be imagined to live in their own Countrey and therefore not bound by the Civil Laws of the place they are really in Wherefore if the offence be such as may safely be slighted it is either to be dissembled or the Embassador commanded to depart the Kingdom which as Polybius tells us was done unto him who procured the Flight of the Hostages from Rome The like was done by Stephen King of Poland to the Muscovite Embassadour and by Queen Elizabeth to the Scottish and Spanish Embassadors For when Mendoza the Spanish Embassador was found practising with Throckmorton and others to bring in a Foreign Power into England and to depose the Queen he being a man of a Turbulent Spirit and abusing the priviledges of an Embassador was commanded to depart the Realm But when the Bishop of Rosse delegated Embassador from the imprisoned Queen of Scots was found designing means both within the Kingdom of England and without to raise Rebellion and to procure a Foreign Invasion It being demanded of the most Learned Civilians of that Age Whether an Embassador raising Rebellion against the Prince to whom he was sent might enjoy the priviledges of an Embassador it was answered That he had thereby lost his priviledge and might be punished as Camden records it Anno 1571. and 1584. And we may also remember that at another time the Romans caused the Tarentine Embassadors to be whipt with Rods for conveying their hostages out of Rome but this was done because the Tarentines being conquered began then to be under the Jurisdiction of the Romans So we read of Charles the Fifth that he commanded the Embassador of the Duke of Millain as being his Subject that he should not depart his Court without leave as Guicciardine relates it But in case the Crime be heinous and menacing present danger to the State then is the Embassador to be sent back to his Master with demand That he either punish him or deliver him up to be punished as we read of the Gaules that they demanded the Fabii to be delivered up unto them But as I have often said before All humane Laws are so made that they oblige not in extream necessity the same may also be said of these Rights of Embassadors Wherefore that we may prevent some imminent danger especially to the Common-wealth if no fitter means can be thought on we may both apprehend and examine him as the Roman Consuls did the Embassadors of Tarquin All intercourse by Letters being in the first place prevented as Livy directs â Literarumim-primus habita cura ne interciderent Plut. Vit. Pet. Off. l. 3. Pelopidas was imprisoned by Alexander Pheraeus for that being an Embassador he stirred up the Thessalians to liberty But in case an Embassador shall attempt to assault another man by force of Arms surely he may be killed not by way of punishment but by way of Natural Defence So the Gaules might have killed the Fabii whom Livy brands as being the Infringers of humane Right Wherefore when the Herald in Euripides attempted by force to rescue the Suppliants he was by force resisted and when the Herald demanded of him Dur'st thou an Herald hither sent to smite He was answered Yes if that Herald first begin so fight And because that Herald did act by Force and Violence he was slain by the people of Athens as Philostratus records in the Life of Herod By the like distinction Offic. l. 3. doth Cicero resolve this Question Whether a Son ought to accuse his own Father being a Traytor to his Countrey Namely if the Danger be great and imminent he ought by way of prevention but in case the danger be past he ought not by way of punishment for the Fact The very Name of an Embassador saith Theodatus the Goth to the Emperour Justinian's Embassador is with all men held as sacred and honourable which honour they may justly claim whilest they uphold their dignity by their modesty For most men are of opinion that it is lawful to kill an Embassador if he be injurious to the person of him to whom he is sent or shall defile himself by violating the Rights of Marriage And when some Embassadors did alledge that they were so far from the suspicion of committing Adultery that they could not stir abroad without a Guard they prudently added That if an Embassador did deliver no other Message Camdân anno 1571. than what he received from his Master though it were never so unpleasant he was not faulty but he that sent him For there was nothing committed unto him but that he should faithfully discharge the Commands that were given him V. He is not bound to these Laws of Embassages to whom the Embassador is not sent This Law of securing Embassadors from Force or Violence obligeth him to whom they are sent at least when they are admitted as if from that time there had passed between them a Tacit Covenant But before they are received they can claim no such priviledge because he to whom they are sent may haply declare that they shall not be received And if so then they shall be accounted as enemies As the Romans premonished the Aetolians and as the same Romans long since by an Edict signified to the
it self And in another place The Earth and Graves are to all men common and alike due Eusebius also reckons it among the Laws of Nature And Euripides The Laws of Mortals Aristides calls it ãâã ãâã ãâã ãâã ãâã A Law common to all men Papinius The Law of the whole Earth and the general League of the World Tacitus The great Commerce of humane condition And Lysias the Orator The common hope of all He that hinders the burning of the bodies of dead men is said in Claudian to divest himself of all humanity and by the Emperour Leo to reproach Nature her self and by Isidore to profane that which is holy And because the Ancients observed that what Rights soever being common to all Civilized Nations to the end that they might be reputed the more sacred were attributed to the Gods as their Authors As they did the Rights of Embassadors So we find that they every where ascribe unto them this Right also In one of the Tragedies of Euripides and in one also of Sophocles you may find it called ãâã ãâã ãâã ãâã ãâã Supplic Ajace A Divine Law and in another Antigone you may find it reckoned among the Laws of the Gods And Isocrates discoursing of the Ground of the War which Theseus made against Creon brings in Adrastus having lost his Army before Thebes and by Creon denyed leave to bury the Dead supplicating Theseus then King of Athens That he would commiserate those brave men that lay unburied before Thebes and that he would not suffer the Ancient Custome to be despised nor that Common Right violated which all mankind might lay claim to as being instituted not by an humane but by a divine power which when Theseus heard he immediately sent his Embassadors to Thebes The same Author exceedingly blaming the Thebans for preferring their own Decrees before the Laws of the Gods And not only Isocrates in this place but Herodotus in his Calliope Diodorus Siculus in the fourth of his Histories Xenophon in the sixth of his Grecian History and many other Historians do unanimously assert That this War of Theseus was undertaken for the Common Cause of all Mankind And every where in all Authors of the best account we read this office of burying the dead commended unto us under the most specious names of the best Vertues Orat. pro Quintio Lib. 6. c. 11 22. Lib. 5. c. 1. Cicero and Lactantius commend it as an Act of Humanity Valerius Maximus as an Act of Humanity and Courtesie Quintilian as an Act of Humanity and Religion Seneca as an Act of Compassion and Humanity Philo attributes it to Pity and Commiseration of Common Nature Tacitus calls it the Commerce of Humane Condition And Vlpian ascribes it to Mercy and Piety Euripides and Lactantius term it an Act of Justice and of Piety Lib. 6. c. 12. Vltimum illud maximum pietatis officium est Peregrinorum pauperum Sepultura To bury the Stranger and the Poor is the last and greatest duty of Piety saith Lactantius As on the contrary to deny Burial to the Dead as the Donatists did the bodies of the Catholicks Optatus Milevitanus condemns as Impiety And in Papinus we read Bello cogendus Armis In mores hominemque Creon By War and Arms must Creon be Enforc't to Customes and Humanity Spartianus brands such men with Infamy Vita Cara callae as if they had no respect or reverence at all to Humanity And Livy calls it A brutish Cruelty beyond the belief of Humane Anger Homer brings in Jupiter and the rest of the Gods as being offended at Achilles for abusing the body of Hector And Lactantius condemns their wisdom as savouring too much of Impiety who esteem all Care in burying the Dead superfluous II. Whence this custome ariseth Upon what ground this Custome of burying the bodies of the Dead was at first introduced whether embalmed according to the Custome of the Egyptians or burnt according to the manner of the Grecians or interred as we now use which Cicero approves as the most Ancient Nat. Hist l. 7. c. 54. and after him Pliny who makes this difference between Sepultus and Humatus as if he were understood to be Sepultus whose body was by any means kept and preserved but he only to be Humatus that was covered with Earth it is not agreed upon on all sides Moschion attributes it to the savage Cruelty of the Gyants who were wont to devour the dead bodies of men Cujus abolitae signum est sepultura The abolishing of which Brutish Custome is signified by Sepulture Others are of Opinion that by this means men seem voluntarily to pay that debt which Nature will exact from us though we were otherwise unwilling For that all humane bodies being extracted from the Earth should return to the Earth was not said by God only unto Adam but all both Greeks and Latines do every where acknowledge Cicero quotes this out of Euripides that Reddenda terrae terra Earth must to Earth return Which also are the very words of Solomon Eccles 12.7 Eccles 12.7 Then shall the Dust return to the Earth as it was and the Spirit shall return unto God that gave it Now on this subject what said Solomon more than Euripides who in the person of Theseus saith thus Jam sinite terrae Mortuos gremio tegi Res unde quaeque sumpserat primordium Eo recipitur Spiritus Coelo redit Corpusque terrae Jure nec enim Mancupî Sed brevis ad aevi tempus utendum datur Mox terra repetit ipsa quod nutriverat Now let the Dead be unto Earth bequeath'd And each return from whence it once receiv'd Its being then will the Spirit soon retire to Heav'n The flesh to dust from whence it came not giv'n But for a short time lent that past and gone The Earth what it so lent soon seizeth on Lucretius speaking of the Earth saith She is of All the Womb and common Tomb. Pliny likewise tells us That the Earth receives us as soon as we are born and being born she nourisheth us and being brought up she alwayes sustains us and at last being forsaken by all the world she like a tender Mother receives us into her own Bowels again and there hides us See Job 10.9 In Flaccum Nature saith Philo hath ordained the Earth as Mans proper place not only whilest they live but being dead also Ut eadem quae primos suscepit Natales suscipiat ex hac vita Exitum That she that receives us from the womb may when dead afford us a Tomb. And yet as there is nothing that is laudably done in man but what God hath imprinted some footsteps thereof in some Beasts so also it falls out in this very thing Lib. 11. 30. Pliny reports of the Pismires That they only of all other living creatures besides men do bury one another And yet he himself speaking of the Dolphins saith Lib. 9. c. 8. That
qualemcunque Mortuum terra condi fas sit Because it was always thought an Act of Piety to inter all dead Bodies whosesoever they were Wherefore according to the exposition of the Hebrew Doctors The High Priest though otherwise forbidden to be present at any Funeral yet notwithstanding if a man were found dead and unburied he was even himself commanded to bury him The very same was enjoined by the Pontificial Law among the Romans as Servius notes Christians have so high an esteem of this duty that for this cause as well as for the relief of the Poor and the redemption of Captives they have thought it lawful to melt down their Consecrated Plate and to sell it There are also Examples that may be brought for the contrary opinion but such as are by the Judgement of the most and best men condemned Hunc oro defende Furorem saith Virgil Which Servius thus expounds O keep me from this rage I pray i. e. from that Malice which rageth even after Death The like we may read of in Claudian Hominemque cruentus Exuit teneum caesis invidit arenam Bloody are they wanting humanity Who to the slain a little dust deny Wherewith agrees that of Diodorus Siculus Ferinum est bellum quod cum mortuis qui ejusdem sunt Naturae geritur To wage War with the Dead who were lately of the same Nature with our selves is bruitish Cruelty IV. Whether to such as are notoriously wicked But yet as concerning such notorious Malefactors as have deserved Death and according unto Law have suffered there were some cause to doubt But that the Divine Law given to the Hebrews which as it was our guide and directrix to all other Vertues so is it to this of Humanity also did command That such as were hanged on the Gallows which was a Death very ignominious among them as appears Numb 25.4 and Deut. 21.23 should be Buried the same day Whence Josephus affirms 2 Sam. 21.26 That so great was the care that the Jews took of burials that they took down the Bodies even of those that were publickly Executed before the Sun went down and bequeathed them to the Earth And as others of the Jewish Interpreters add This they did in reverence only to the Image of God whereunto Man was created Homer records That Aegysthus who to the Sin of Adultery had accumulated another Sin Odyss 3. even that of the Kings Murther being himself afterwards slain was notwithstanding by Orestes the slain Kings Son buried Yea and among the Romans Vlpian will inform us That the Bodies of such as were put to Death as Malefactors could not be denyed their Kinsmen if they required them yea they were to be given to any body else that would ask them as Paulus understood it Neither did those cruel Emperours Dioclesian and Maximilian forbid Burial to any though guilty of the greatest crimes and accordingly punished Hos Sepulturae tradi non vetamus was the answer of both of them We do not forbid these to be buried The like Custome there was among the Romans as Philo testifies against Flaccus Yet Examples we have also of some who have been cast out unburied But this is more frequently done in Civil than in Foreign Wars And though it be a Custome among us to hang notoriours offenders in Chains to deter others yet whether this be commendable or not The hanging men in chains whether commendable is much disputed not only by Politicians but Divines On the contrary we find them highly commended who have themselves caused those Bodies to be buried which they would not permit others to bury As Pausanias King of the Lacedaemonians who being provoked by the Aegeneti to retaliate what the Persians had before done against Leonides rejected their Counsel as unworthy of him or indeed the name of a Grecian Papinius brings in Theseus bespeaking Creon thus Vade atra daturus Supplicia extremique tamen secure Sepulchri Torments extreme go and endure Yet of a Sepulchre be thou secure Josephus records it of the Pharisees Ant. l. 13. c. 24. That they gave a most sumptuous Funeral to their King Alexander Jannaeus notwithstanding his barbarous cruelty exercised over the Bodies of his dead Countrey-men And though God hath sometimes punished some persons with the loss of Burial as he did Jehoiakim and Jezebel Jer. 22.19 yet this he did by his own most Sovereign Power which is not bound up by any Law but that only of his own Will And whereas David kept the head of Goliah 1 King 21.23 to shew as a Monument of his Victory it was done upon a Stranger a contemner of the true God And under that Law where by the word Neighbour none were included but the Hebrews only V. Whether to those that killed themselves There remains yet one thing worthy our observation concerning the Burial of the dead namely That the Jews as zealous as they were for this duty yet would not vouchsafe this Honour to those who killed themselves And no marvel as Josephus well observes â Ant. lih 3. c. 25. since no other punishment can possibly be inflicted upon those who esteem Death it self to be none The Milesian Virgins as Plutarch reports were all at once surprized with a violent fit of Melancholy and in an humour would needs dye * A. Gell. l. 15. c. 10. Plut. de Mul. virt no man knowing the cause why Many of them notwithstanding all perswasions and care taken of them did strangle themselves and others daily attempting to do the like were prevented At length by the advice of a grave Senator The Milesian Virgins it was enacted That all that were found so hanged should be stript naked and with the same cord being first dragg'd through the streets hanged in the Market place and exposed to publick view The fear of shame was stronger than the fear of death After this Law made none was ever found so regardless of her Honour as to attempt such an Act. Servius upon the twelfth of Virgil's Aeneads tells us That it was provided by the Roman Laws Vt qui laqueo vitam finisset insepultus abjiceretur That whosoever hanged himself should be cast out unburied And very frequent it is among most Nations Nic. 55. to inflict some brand of Infamy upon such as kill themselves as Aristotle notes Which place Andronicus Rhodius expounding saith That they were prohibited Burial Which Law Dion Chrysostome highly commends among many others enacted by Demonassa Queen of Cyprus Aesch in Clesephontem At Athens in the times of Aeschines he that killed himself had his Hand buried apart from his Body Neither is it to the purpose to object with Homer Aeschyluâ and others that the Dead feel nothing either of pain or shame For no malefactor is put to death simply because he hath sinned but in regard that his death strikes a terrour into others Quod mortuis accidit à vivis metuitur What happens to the
perfecting of this work of repentance in him I answer That God haply might as probably have received as much dishonour in his recidivation or falling back to his accustomed wicked courses and so that of Seneca might very fitly be applyed Quod unum bonum tibi superest representabimus Lib. 1. de Ira c. 16. c. 15. mortem that only good thing that thou art capable of we represent unto thee which is death And that also of the same Seneca Quo uno modo possunt desinant esse mali there being no way left for them to cease to sin but to cease to live whereunto we may add that which the same Author saith elswhere Talibus ingeniis vitae exitus remedium est optimumque est abire ei qui ad se nunquam reverturus est De Benef. l. 7. c. 10. death is to such the only remedy it being best for him to dye that lives without any hopes of being cured Let these therefore together with what we have said in the beginning of this work suffice for answer to those who hold that either all punishments or at least such as are capital are without any exceptions prohibited unto Christians the contrary whereunto we are taught by the Apostle who within the duty of a King includes the power of the Sword as being the Executioner of divine vengeance and in another place he tells us that we ought to pray that Kings may be made Christians and that as Kings they may protect the innocent which in this general corruption and depravity of mankind even since the times of the Gospel cannot be done unless by the death of some the impudence of others be repressed seeing that all the publick punishments that are every where inflicted upon the guilty are not as yet found sufficient to guard or protect the innocent Neither is it altogether impertinent to propose unto all Christian Magistrates the example of Sabacon King of Aegypt for their imitation a man highly famed for his Piety by whom all capital punishments were changed into some servile works that were profitable to the Common-wealth and that with good success Lib. 1. as Diodorus testifies Strabo relates the like of some Nations inhabiting about Mount Caucasus where saith he They put no man to death although they offend never so highly yea and among the Romans no Citizen was ever known to be put to death or punished with stripes after the Porcian Law was made unless for Treason or being first condemned by the people of Rome Neither is that of Quintilian to be slighted No man will doubt saith he but that if a Malefactor could be reclaimed and become a new man as some such there may sometimes be it were better for the Common-wealth that he should live than dye It is observed by Balsamon That those Roman-Laws which condemned men to death were most of them changed by the Christian Emperours into some smart punishment whereby both the condemned Party was more sharply urged to repentance and others more affrighted by their lasting punishment Nicetas records it See Chap. 24. Sect. 2. That during the Reign of Johannes Comnenus no Malefactor was at any time put to death And when some ranting Donatists had killed two Catholick Priests most barbarously putting out the eyes and cutting off the fingers of one of them Grat. l. 23. q. 5. Circumcelliones St Augustine besought Count Marcellinus not to punish them by that strict Rule of retaliation whereby they should suffer according to what they had done but that he would suffer them to live and to enjoy their limbs yet to restrain them from the like outrages by some hard yet profitable labour or to reclaim them from their madness by some smarting punishment For this also saith he is called a condemnation And who understands not this to be as well a benefit as a punishment whereby neither are the Reins let loose to licentious cruelty nor that wholesome Physick withheld that should work Malefactors to repentance An House of correction strikes more terrour to an idle Rogue than the Gallows and to be chained to an Oar than Death it self XIII The imperfect Divisions of punishments rejected By that Division which we have made of the ends for which punishments were ordained it seems that somewhat was omitted by the Philosopher Taurus out of whom Gellius saith thus Whensoever there shall appear in a Malefactor great hopes of reformation without punishment or no hopes at all of his amendment or that there is no necessary cause to fear the dignity of the Person against whom the offence is committed should be slighted or contemned or that the sin is not such as requires the impression of some necessary fear to preserve others from it then wherein soever it is that men offend it is not worth our study to inflict punishments For he seems thence to infer That punishments are needless if any one of these ends be wanting whereas on the contrary all these ends must cease that there be no need of punishments Besides he omits this end namely When an incorrigible Sinner ãâã taken away to the end that he may not commit more or greater sins And what he there said concerning the loss of the dignity of the person against whom the sin is committed was to be extended to other damages which we may have just occasion to fear De Clem. lib. 1. c. 21. Much better is that Partition which Seneca makes In revenging injuries saith he the Law looks at three things which every Magistrate ought likewise to pursue namely That either he whom we punish should amend his life Three ends of punishing or that by his punishment others should be meliorated or that incorrigible Malefactors being taken away they that are innocent should live more securely In Legatione The two former of these Philo commemorates Punishment oftimes corrects and amends a Malefactor but if this fail it doth certainly meliorate those that come to the knowledg thereof For many men are instructed by other mens harms and grow more watchful over themselves by fear of the like sufferings But in that Division of Seneca if by those that are innocent we understand as well those who may hereafter be injured as those who have already been injured we have a full and perfect Partition especially if to those two words taken away we adde or suppressed For both exile imprisonment and whatsoever else it is whereby a man is disabled to do wrong may be hither referred But that distribution which Seneca elsewhere makes is more imperfect where he saith That in punishments this Rule is to be observed That some are inflicted to reclaim those that are wicked others to take them away And yet that of Quintilian is yet more imperfect That every punishment appertains not so much to the sin as for example XIV Not lawful for private Christians to inflict capital punishments though by the Law of Nations they may From what hath
are so forbidden but are such rather as are interdicted by the Divine Law in which number we may haply place the sin of Fornication and some of those sins which we esteem to be Incest Usury c. Thus Asterius Bishop of Amasea They that yield obedience unto the Civil Laws of Princes only do leave Whoredom unpunished So likewise St Hierome to Oceanus Vide Hier. ad oceanum supra c. 5. sect 9. The Laws of Temporal Princes let loose the reins of unbridled lusts and condemning Adultery only suffer men to run every where to Stews and Brothel-houses without controul as if it were the dignity that made the crime and not the will But with us what is unlawful for women is likewise so for men the same yoke binds both to the same conditions XLIII In the Law of Nature we ought to distinguish between things that are clear and that are obscure The third Caution is That we diligently distinguish between those general maxims of Reason that are manifest of themselves as this That every man ought to live honestly that is according to the dictates of Natural Reason and others that are nearest unto these but so manifest that they can admit of no doubting such as this That we ought not to take away from another that which is his And between those maximes which are not of themselves so clear but must be collected from those before mentioned by consequences whereof some are easily drawn as this admitting Matrimony it follows That we ought not to commit Adultery which was so generally received that as Philo testifies in the life of Joseph It was every where punished and Lactantius tells us That to defile the Marriage-bed was condemned by the Common Law of Nations Others though as true yet are not so manifestly true because our assent unto them cannot be gained but by the mediation of three or four consequences as this That that revenge that doth acquiesce in another mans grief is vicious It is here almost as it is in the Mathematicks wherein some things are of the first Notion or next unto the first some are demonstrations which are immediately both understood and assented unto But some others though true yet are not so evident unto all Therefore as by the Civil Laws our ignorance of the Law or of the true meaning of the Law doth in part excuse us So concerning the Law of Nature there is the same Reason That our weakness to collect what was thereby forbidden by such consequences or what an ill education hath ingenerated in us should also excuse us For as St Hierome well observes Vnaquaeque Gens hoc Legem Naturae putat quod didicit Every Nation thinks that to be the Law of Nature which it first imbibes Now our ignorance of the Law as it takes away a sin if it be inevitable so also it diminisheth a sin though it be caused by some neglect And therefore those that are corrupted by some evil education Aristotle compares to such whose appetites are vitiated by some malignant distemper And Plutarch observes That there are some diseases of the mind that violently hurry a man from his natural constitution Lastly this also is to be noted which I say once but shall not often repeat That those wars which are undertaken for the exacting of punishments unless the injuries that are done are very great very manifest or backt with some other cause are alwayes suspected to be unjust For what Mithridates said of the Romans is oftentimes too true Non delicta Regum illos sed vires ac Majestatem insequi It was not the faults of Princes In such Cases then we ought not to be too severe chastisers of other mens infirmities but rather pity their ignorance and their ill education praying for them as St. Stephen did for his persecutors Father forgive them for they know not what they do but their Power and Majesty that they persecuted XLIV Whether War may be made for offences against God Our proposed method now guides us to Crimes committed against God and to enquire whether for the punishment of such a War may justly be undertaken Covarruvius handles this question at large But being swayed by the Authority of others he holds That this punitive Power cannot subsist but where there is a Jurisdiction properly so called which we have already rejected Whence it follows That as in the affairs of the Church the Bishops are in some measure said to take upon them the care of the Universal Church for so St Cyprian speaks It becomes us to watch over the whole body of the Church whose members are disperst into several Provinces And again There is but one Episcopacy whereof every one holds his part entirely So besides the charge of their particular Dominions Kings may be said to assume the general Care of all Humane Societies But a better Argument brought by such as deny such a War to be lawfull is this That God alone is sufficient to punish such sins as are committed against himself for Deorum injuriae Diis Curae perjurium satis habet Deum ultorem The affronts committed against God God takes care of and it sufficeth That God himself is the avenger of perjury But we must observe That so it may be said of any other sins God without doubt is sufficiently able to punish them and yet we see That the Laws are justly and duly exercised upon such offenders by Magistrates in all Nations none dissenting But against this some reply That those punishments are inflicted not so much for offences committed against God as because of the damage thereby done unto men But on the contrary It is to be observed That not only those offences which are committed against others directly are punished by Humane Laws but those also which may by consequence be prejudicial to others as Self-murder Sodomy and the like for though the principal end and scope of Religion be to purchase the Grace and Favour of God yet hath it also a very strong influence and works many notable effects upon Humane Society Plato calls it The fortress and bulwark of all Power and Jurisdiction and the very bond of good Discipline Plutarch calls it the cement of all Humane Society and the very foundation and ground-work of the Legislative Power Philo saith It is the most effectual charm to procure love and that the worship of one and the same God is the most indissoluble band of friendship Whereas on the contrary Heu primae scelerum causae mortalibus aegris Naturam nescire Dei All wickedness ' mongst Mortals hence doth flow That the most Righteous God we do not know Every false Opinion concerning Religion saith Plutarch is dangerous and if it be accompanied with perturbation of mind most pernicious But to have one and the same Opinion concerning the worship of God and to differ nothing in life and manners from each other doth produce the most perfect harmony and agreement amongst men as
Miracles that were wrought by him and his Apostles which thing being matter of fact though of old confirmed to have been done by most irrefragable Testimonies yet of old so that this is a question of Fact and that now of great Antiquity Much more may this be questioned by such as now live so many Ages distant from that Age wherein they were done as well as the truth of their Histories which are as ancient as that is especially by those who never heard of them before nor have any of those helps either inward or outward which are necessary to beget Faith And therefore we say That Faith is not by Nature but by Grace and that as when God gives it it is not as the reward of any pleading merits so when he denies it or gives it more sparingly it is for Causes not indeed unjust though unto us for the most part unknown and so not at all punishable by humane Laws To this purpose was that Canon of the Toletane Council made whereby it was decreed That no man should be inforced thenceforth to Christianity Rom. 9. For it is said He will have mercy on whom he will have mercy and whom he will he hardenenh So Josephus Every man ought to worship God willingly and freely and not by compulsion It is the custom of the Holy Scriptures to attribute that to the will of God whereof no probable cause can be assigned by men Wherefore since it is not in the power of man to give a reason why some men do believe and others not though both have the same outward helps and means hence it is that we resolve all such doubts in Gods will saying He will have mercy on whom he will have mercy and whom he will he hardeneth Neither is this the manner of the Holy Scriptures only but it is usual with prophane Authours who when in doubtful Cases they find not reason sufficient to inform their judgments supply that defect with a sic visum Thus it seems to be The second thing observable is That Christ the Authour of the New Law did never intend that any man should be compelled to receive it by temporal punishments or driven thereunto by the fear of them We have not received saith St Paul the Spirit of bondage to fear Jo. 6.67 Luke 9.54 Matth. 13.24 Rom. 8.15 So Heb. 2.15 In which sense it is very true what Tertullian saith Nova Lex non se vindicat ultore Gladio The Gospel doth not call for the Sword to avenge its injuries Isidore speaking of Sisebutus King of Spain saith That in the beginning of his Reign being inflamed with a zeal for Gods Glory though not according to knowledge he compelled the Jews to Christianity by the power of the Sword whom he ought to have won to the Faith by meek and gentle perswasions And for this very Cause were the latter Kings of Spain highly blamed by Osorius and Mariana In the Constitutions of Clement it is said of Christ That he left to every man the free power of his own will not punishing the breach of his Law with temporal death but calling them to an account for it in the life to come So our Blessed Lord leaving every man to his own will makes Proclamation openly to all If any man will come after me Vid. Cypr. Ep. 55. de Idolor vanitate c. And to his Apostles Will ye also forsake me as leaving it to their own choice without laying any inforcement upon their wills And whereas in the Parable of the Great Supper it is said That some were compelled to come in it is answered Luke 14.23 That as in that Parable the word compel argues nothing else but a vehement sollicitation so also is it to be understood in the Moral of that Parable in which sense the same word is taken Luke 24.29 and not otherwise Matth. 14.22 Mark 6.45 Gal. 2.14 Procopius in his secret History tells us That Justinian the Emperour was by many very wise men taxed for compelling the Samarites by force and menaces to Christianity adding thereunto the inconveniencies that was likely to arise thereupon XLIX That war may justly be made against them that persecute Christians as such But they that persecute others for no other cause but because they either teach or profess the Christian Religion are most unreasonable For certainly our Christian Doctrine considered in its sincerity without any commixture contains nothing prejudicial to Humane Society nay that doth not rather advance it it shall speak for it self and its Enemies shall confess no less Pliny reports of the Christians of his time That they had obliged themselves by oath to abstain from thefts and robberies and not to break their faith with any man Ammianus speaking of our Religion saith That it teacheth nothing but what is just and merciful So doth Arnobius treating of Christian Assemblies Wherein saith he nothing is heard but what exhorts to humanity meekness bashfulness modesty chastity and communicating of their goods to all men as if they were all link'd together by brotherly love And it is the usual Character that the very Heathen give of it That it is Secta nemini molesta A Sect of Religion offensive to none Zozimus though a Pagan gives this testimony of the Christian Faith That it is a promise and engagement to be free from all crimes and from all impiety Apolog. 2. So likewise Tertullian We saith he are Coadjutors and Fellow-labourers with you in establishing the peace of the Empire instructing our Auditors that it is impossible for any man to conceal himself from God whether he be an evil Doer a Thief a Traitor or a just Person as also that every man shall be adjudged to eternal either life or death according to the merit of his deeds Tertullian also observes that it was a common by-word in his time Bonus vir Cajus Sejus tantum quod Christianus He is an honest man only he is a Christian And if it be objected That all innovations are to be feared especially Conventicles and private Assemblies I answer That those Doctrines though new are least to be feared that teach all things that are just and honest but principally those that exact due obedience to Magistrates neither should the private Assemblies of Just and Innocent men be either envied or suspected especially of such as desire not to abscond themselves unless they are persecuted And here I might justly apply unto these Christian Assemblies what Philo records that Augustus said of the Jewish Conventions In Legatione Non eos Bacchanalia esse aut coetus turbandae paci sed virtutum scholas That such meetings were not for revelling or for sedition but mere Academies for Virtue They therefore that persecute such men Aquin. secunda secundae q. 108. and that for this only cause may themselves justly be persecuted Upon this ground it was That Constantine made War against Licinius and other Emperours against the Persians
should be left free to themselves unless some one hath already got the Dominion over them But as to Infants it is clear by another case for seeing that it is not permitted unto them freely to dispose of their own actions or to exercise that Right which belongs unto them by reason of the defect or immaturity of their judgments therefore they are committed to fit Guardians and Tutors XIII The Roman Empire not Universal And here I should hardly mention that absurd Title which some have given unto the Roman Emperour as if the Right of Empire over the remotest and as yet unknown parts of the World were already invested in him but that I find Bartolus who for a while was admired as the Prince of Civilians so daring as to pronounce that man an Heretick that should deny it namely because as well the Roman Emperours have sometimes stiled themselves Lords of the world as by the Council of Chalcedon it may appear as also because in the sacred story that Empire which later writers call Romania is by way of Eminency mentioned by the name ãâã ãâã ãâã ãâã ãâã of the world as indeed many such hyperbolical expressions we shall meet with not only amongst Poets as Orbem jam totum Victor Romanus habebat The conquering Romans held the World in awe and the like which Empire though it contained not the sixth part of the then known world yet because it was the greatest and most eminent Empire in the world at that time it was by way of excellency stiled the Empire of the world Thus Philo I speak saith he De Legat. of many and those the most profitable parts of the earth which a man may by way of eminence call the world as it is bounded between those two great Rivers that of Euphrates and this of the Rhine But even in the holy Scriptures as when Judea only is by the like way of eminency called the whole earth and Jerusalem said to be seated in the midst of the earth i. e. of Judea For as St Hierome well observes Nomen terrae etiam addita particula omnis restringi debet ad eam regionem de qua sermo est This word the Earth though this particle All be added unto it ought to be restrained to the Countrey whereof we discourst So all the world is said to be taxed Luk. 2.1 that is all that was at that time under the Roman Jurisdiction And in this sense Delphos because it was seated on the midst of Greece is said to be Totius orbis umbilicus as it were the navel or midst of the whole earth Neither will it be very argumentative to say with Dante That it would be expedient for all mankind that the Roman Emperour should have such a right of Soveraignty seeing that Commoda quae adfert suis compensantur incommodis The conveniencies that it promises to bring with it would be attended with many more inconveniencies that would follow it For as a ship may be made of that extraordinary bulk and burthen that it cannot be well steered so an Empire may consist of so vast a multitude of Men and of Regions so diverse and so far distant as that no one man can possibly govern it Yea and if we should grant that it were so universally expedient yet would it not thence necessarily follow that this should actually confer a Right to the Roman Emperours because such a Right cannot possibly arise but either by consent or by way of punishment Neither hath the Roman Emperour a Right to all those Countries now which once belonged to his Predecessors for as many of them were got by Conquest so have they long since been lost by Conquest as some also have been quitted by Agreement others being deserted have fallen under the Jurisdiction of other Nations and Kings And some Cities which heretofore were wholly Subjects became afterwards but in part only or admitted into a social League upon terms only unequall For by all or any of these ways the Roman Empire as well as any other might either lose or change whatsoever Right they could formerly have or pretend unto XIV Nor the Pope But some there were that would challenge to themselves the power of the whole Church also even over those people who dwell in those parts of the world which are as yet unknown whereas St Paul himself openly professeth That without the bounds of Christianity he had no right to judge What have I to do saith he to judge those that are without 1 Cor. 5.12 And although that power which the Apostle had did in its manner appertain unto earthly things yet was not that power of Earthly but of Divine Institution and to be exercised not by weapons or scourges but by the Word of God generally preached and applyed to some particular circumstances and by exhibiting or denying the seals of the remission of sins as it should conduce to the salvation of every man And in the last place by a revenge supernatural and therefore proceeding from God himself as in the cases of Ananias Elymas Hymenaeus and others it evidently appeared Yea and our blessed Saviour himself from whom all Ecclesiastical Power flows and whose life was a perfect Exemplar or Copy for the Church to imitate Joh. 18.36 denied his Kingdom to be of this world that is of the same nature with other Kingdom adding this For if it were then after the manner of other Kings should my servants fight And yet even now in case he would pray to his Father to send him an Army it should consist not of Men but of Angels Mat. 26.53 And whatsoever he did by the Right of his own Power he did it not by humane strength but by the virtue of his Divinity and that even then when he drove the buyers and sellers out of the Temple the whip he used was not the Instrument of Gods wrath but the sign or symbol only so was the spittle and the oyl as Abulensis observes In Mat. 9. not the salve but the sign of the cure St Augustine upon that place of John before-cited thus proclaims Hearken therefore O ye Jews and Gentiles circumcised and uncircumcised And hear O ye Kingdoms of the Earth your Empires here I impede not for my Kingdom is not of this world Be ye not moved with vain fears as Herod the Great was at the report of Christs birth who was so far transported with jealousie that he slew a multitude of innocent Babes thinking thereby to secure his own Kingdoms by the death of this new born King Timendo potius quam irascendo crudelior being more enraged through fear and jealousie than anger My Kingdom saith he is not of this world What could have been said more to dispel those fears Come and be partakers with me of that Kingdom which is not of this world Come unto me by faith and let not your fears provoke you to cruelty So likewise Hilary Bishop of Arles Christ came
not into the world to invade another mans Glory but to communicate his own not to usurp an earthly Kingdom but to confer an heavenly St Paul tells Timothy That a Bishop should be no striker 1 Tim. 3.2 Nor rule by constraint or compulsion for to dâive by force better becomes a King than a Bishop Princes may exercise their Power in punishing Offenders to deter them from doing evil De Sacerd. l. 2. But what we do saith Chrysostome must be not by coercion but by perswasion whereunto he adds this Reason For God crowns not our forced but our voluntary or as St Paul speaks our reasonable service Ad Eph. 1.4 So in another place It is our duty to instruct perswade exhort and reprove but not to command or to compel Consiliariorum locum obtinemus We serve as Councellors to advice and to give our Opinions but still we leave our Auditors to their free choice whether they will act accordingly or no We have no such power given us as to restrain men from sinning by severe punishments Whence it is evident that Bishops as such have no Right of Domination over men In Epitaphio Nepotiani as Kings and Princes have St Hierome distinguishing between a King and a Bishop concludes That the Power of a Bishop is much inferiour to that of a King for a King may enforce to an unwilling obedience but a Bishop hath no power but over such as are willing to obey him Episcopus docet ne Judex inveniat quod puniat The Bishop instructs and admonisheth that the Magistrate may find no cause to punish It was well said of Frederick the Emperour concerning the Pope Ecclesiam regat ille suam divinaque jura Temperet Imperium nobis fascesque relinquat Let him his own Church rule by Laws Divine But let the Sword and Scepter still be mine And when Suenno King of Denmark stood Excommunicate William Bishop of Rosâhil in opposing himself against him at his entrance into the Church with his pastoral staff and exposing his breast naked to the officers of the King who offered to draw upon him did therein perform the office of a good Bishop The like did St Ambrose to the Emperour Valentinus as we have declared above Bo. 1. ch 4. §. 5. but whether it be lawful for Kings themselves to make War upon such as have rejected Christianity by way of punishment we have already elsewhere discourst in the Chapter of Punishments as far as sufficeth to our purpose XV. The pretence of fulfilling of prophecies no cause of War And hereof also I shall give my advice and that not in vain but because I foresee by comparing these modern times with those long since past much mischiefs likely to ensue unless in time carefully prevented that the hopes we conceive that some things are due unto us by our own interpretation of some Divine Prophecies can be no cause of a just War Zozimus records it of Nicomedes the Son of Prusias that mis-appling a Prophecy of one of the Sibyls by the perswasion of Attalus made War against his own Father the like he and Ammianus relates of one Theodorus so doth Procopius of John of Cappadocia In the time of the Emperour Gratian. For besides that those Prophecies which are not fulfilled cannot certainly be understood without a Prophetick Spirit the very time of the accomplishment of such as are certain may be hidden from us And lastly the bare prediction unless it be backed with an express command from God gives no right to any man sâeing that God permits such things as he predicts to be sometimes brought to pass by wicked men and by wicked actions For the Books of the Prophets are shut and sealed up until a certain time so that they cannot be understood Dan. 12.4.8.9 The Vision that the Prophet Habbakkuk saw concerning the judgments to fall on the Chaldaeans was not immediately to be inflicted on them But it was to be fulfilled in its appointed time In the end whereof saith that vision it shall speak and not lye though it do tarry yet was the Prophet to wait for it for it shall surely come to pass and not stay Hab. 2.3 Time then is the best interpreter of Prophecies St Jerome upon that place of Daniel before-recited writes thus If the Prophet did hear and not understand what will they do who presuming on their own understanding have published this Book which is sealed up and until the time come for its accomplishment So Procopius concerning the Oracles of the Sibyls Which saith he I believe are beyond all humane power to unfold until the time come when they shall be fulfilled Let Divines therefore take heed how they undertake to unriddle Prophecies and let Politicians beware how they give credit to over-arrogating Divines though the things predicted were certainly to come to pass yet are the times and means when and whereby they are to be accomplished very uncertain and therefore it is no dishonour to profess our ignorance of them Eorum quae scire nec datur nec fas est docta est ignorantia scientiae appetus insaniae species Some kind of madness it is to desire to know those things which are therefore screened from us that we should not know them The secret things belong unto God but the things revealed unto us Deut. 29.29 XVI Nor a debt not strictly due but some other way Thus also is it to be observed that in case any thing be owing to a man not strictly out of justice but arising from some other vertue as from liberality favour mercy love or the like as it cannot be recovered by any course of Law so neither can it be required by War For to either of these it sufficeth not that what is required is for some moral reason to be done But besides that it is necessary that there should be in us some kind of Right unto that such a kind of Right as the Laws both Divine and Humane do sometimes give even unto such things as are due by other vertues which when it happens then it becomes a debt after a new way which now appertains to justice But this being wanting the War that is made for this cause is unjust as was that War made by the Romans against the King of Cyprus or ingratitude For he that doth a courtesie to another hath no Right to exact thanks otherwise it were not a courtesie but a contract or debt XVII Though the War be just yet the manner of prosecuting it may make it unjust It is also to be observed that though there be a just cause of War yet may this just cause be spoiled by the access of some vice that cleaves to the action from the mind of the Agent either that something else not by it self unlawful doth more efficaciously move us to the War than the Right it self as when we have a greater prospect unto Glory or when some kind of profit either publick or
freely remits where he hath power to revenge Nec quicquam gloriosius Principe impune laeso Neither is there any thing more glorious than an injured Prince that disdains to revenge his own wrongs And therefore Kings as Quintilian adviseth should be exhorted to make themselves rather famous for their humanity and clemency than formidable for their severity Amongst other the vertues that Ennobled C. Caesar this is recorded by Cicero as the chief That he never forgot any things but injuries Thus doth Livia plead with Augustus As it is the duty of Emperours severely to punish offenders against the Commonwealth so is it their honour to forgive their own personal injuries Dion It is very true what Antoninus the Philosopher told the Senate That there was nothing so unbecoming a Prince as to avenge his own wrongs for though the punishment be put just yet being Judge in his own cause it will seem cruelty And what Themistius said unto the Senate in the praise of Theodosius That a good Prince should excel those who had wronged him not in power to hurt them but in his readiness to do them good Aristotle denies that Prince to be magnanimous that is mindful of an injury which Cicero explains thus For saith he there is nothing more becoming a noble person than gentleness and clemency When one told Antisthenes that Plato spake ill of him he answered without passion Regium est benefacere male audire To do well and hear ill is commonly the fate of Kings The Holy Scriptures do furnish us with many excellent examples of clemency as in Moses who when the people began to mutinie against him for want of flesh instead of punishing them prays for them Numb 11.12 And when God himself branded Miriam with Leprosie for her seditious murmuring against him He instead of taking revenge intercedes for her healing her foul face with his devout tongue Numb 12.13 The like we find in David who being bitterly reviled by Shimei crying out against him Come up thou man of blood c. returned not reproaches for reproaches but being urged by some to a revenge answered meekly Let him alone let him curse for haply God hath bidden him 2 Sam. 16.7 10. Thus did St Stephen intercede for his persecutors saying Lord lay not this sin to their charge Acts 7.60 Now this doth in a more especial manner become those who are Soveraign Princes Chrysost in laude Clem. Vnto whom as all things are permitted so freely to restrain themselves and to make the Divine Law their guide in all their actions is the readiest way to purchase glory and immortality The advice therefore of St Augustine to Count Boniface was worthy to be by all Kings observed Remember speedily to forgive him who having injured thee begs for pardon And these are the principal motives which should disswade us from entring into a bloody War though haply justly provoked which are drawn from that affection which as men we either owe or may rightly shew even unto our enemies IV. And that sometimes for his own and his Subjects safety Sometimes it concerns us to abstain from War for our own and their sakes that are under us Procopius â Procop. Goth. lib. 2. brings in the Goths thus bespeaking Belisarius Since these things stand thus it is a duty incumbent upon the Governours of either Nation not to be too prodigal of the blood of their Subjects out of an ambitious desire of their own glory but to prefer those things that are both just and profitable not for themselves only but for their enemies Plutarch in the Life of Numa tells us That after the Colledge of Heraulds had judged that they might lawfully make War the Senate consulted whether it were fit and expedient for them so to do In the Parable of our Saviour it is said That before any King entred into War he first sate down and consulted about the charge and whether with ten thousand he was able to encounter him that came against him with twenty thousand and if not he instantly sent and made peace with him So Diodorus in Thucydides Although I should pronounce them guilty of great Crimes yet I shall not adjudge them to be slain unless I see it expedient So likewise Livy records of the Tusculans That by suffering all things and denying nothing they purchased their peace with the Romans Lib. 6. Plut. vit Camilli The very same was done by the King of Armenia in the times of the Emperour Severus as Herodotus testifies * Herod lib. 3. And Tacitus tells us That the Romans sought an occasion of War with the Aeduans in vain for being commanded to send money and arms to their Camp they sent both and not only those but victuals also and that frankly So Queen Amalasuntha professed to the Ambassadors of the Emperour Justinian That she would not contend with him in Arms. Sometimes an Enemy may be pacified in a moderate way Lib. 7. as Strabo informs us was done by Syrmus King of the Triballi who at once forbad Alexander the Macedonian entrance into the Island Peuce and at the same time honoured him with many rich presents thereby shewing that it was the fear of his power and not any hatred or contempt of his person that made him to do it And indeed what Euripides sometimes said of the Cities of Greece may fitly be applyed to other States De Marte quoties itur in suffragia Nemo imminere cogitat mortem sibi Sed quisque cladem destinamus alteri Quod si in comitiis funera ante oculos forent Furiata bello non perîsset Graecia When in full Senate Votes for War pass free No man his own destruction doth foresee But all fore-tell the others destinie When if its own sad fate each had foreseen Greece thus by War consum'd had never been When we wax proud and confident in our own strength saith Livy Let us then call to mind that great command that fortune hath over all sublunary things together with the sudden changes and uncertain events of War And as Thucydides adviseth Before we engage our selves too far let us consider how many sad mischances do usually happen in War which the most piercing eye of humane wisdom cannot foresee V. Prudent Rules about our choice of Good The things that usually fall under consultation are either about the intermediate ends which may probably conduce to the last end we fully resolve on or about those means whereby we may probably obtain those ends The end we propose to our selves is always either some good or doubtless the avoiding of some evil which also falls under the notion of good But those things that lead us hither or thither are not expetible for themselves but as they conduce to those ends wherefore in all our Consultations we are to compare both those ends between themselves and the effective power or faculty of those things which lead to the end to produce that end For
nothing that was any where that is among such Nations as were civilized reputed sacred should be by them profaned or violated Diodorus Siculus complains against Agathocles his Souldiers That they abstained not from that foul sin of ravishment The like doth Appian in his Mithridatick War concerning the Captives taken in Chius That both Women and Children were barbarously ravished by those that led them away prisoners Aelian speaking of the insolencies of the Sicyonians being Conquerours in ravishing the Pellenaean Virgins and Matrons crys out thus These by the Gods of Greece are such acts of cruelty and inhumanity as were never to my remembrance allowed of by the very Barbarians And surely it is but reasonable that this should be generally observed among the Christians not only as a part of our Military Discipline but as a part of the Law of Nations namely That he that shall forcibly abuse a Woman though in the War shall every where be punishable Belisarius always observed this Rule So did Totilas when he had taken Cumae Goth. lib. 3. and at Rome also as Procopius leaves it upon Record Neither did the Hebrew Law suffer this wickedness to go unpunished as may be collected from that part of it which so provides for a Virgin taken Captive That he that takes her might marry her and if afterwards he liked her not he might dismiss her but not sell her Thou shalt not take money for her because thou hast humbled her saith the Law Bacchai Deut. 21.12 Upon which words one of the Hebrew Doctors thus glosseth God would have the Camp of Israel to be holy and not like the Camp of the Gentiles polluted with Whoredom Contra App. and such like abominations Josephus likewise highly extolls the Jewish Law for its care of prisoners taken in the War to preserve them from shame and reproach especially of women Arrianus highly commends that fact of Alexander who being taken with Roxana's beauty refused to abuse her as his Captive but did her the honour to marry her So doth Plutarch also He disdained to force her as a Conquerour but wedded her as a Philosopher The same Plutarch relates it of one Torquatus That he was banished by the Romans into the Isle of Corsica for forcing a Virgin whom he had taken Captive But Cosroes King of Persia was more severe for he caused one that had ravished a young Maid to be Crucified as Procopius informs us in the second of his Persian Wars CHAP. V. Of Spoil and Rapine committed in War I. That the Goods of an Enemy may be spoiled or taken away II. Even those that are sacred which how to be understood III. Yea and those that are Religious where some caution is added IV. How far forth fraud may be used in this case I. That the Enemies Goods may be wasted and taken away CIcero in the third of his Offices gives this Rule Non est contra naturam spoliare eum quem honestum est necare It is no whit repugnant to the Law of Nature to spoil and plunder him whom it is lawfull to kill It is not then to be wondered at That the Law of Nations permits the spoil and devastation of an Enemies Land and Goods seeing that it permits him to be killed Polybius tells us * Lib. 5. That by the Right of War It is lawfull either to take away or to destroy the Forts Ports Cities Subjects Ships Corn Cattle and such like things of an Enemy And in Livy we read That there are certain Rights in War which as we may safely do unto an Enemy so we must with patience suffer from them such are the burning of our Corn the pulling down of our Houses the taking away of our Men and Beasts He that is vers't in Histories will find almost every page filled with these dreadfull effects of War the demolishing of Cities the razing and throwing down their Walls the spoiling and laying wast of the Enemies Countrey with Fire and Sword yea and we may observe That all these are lawfull to be done though the Enemy do voluntarily surrender themselves The Townsmen saith Tacitus set open their Gates of their own accord and submitted themselves and all they had to the Romans whereby they saved themselves But the Romans burnt the City Artaxata and laid it level with the ground because they could neither keep it with safety nor leave it with honour II. Though Consecrated Neither are things sacred that is consecrated to any one or more Gods exempted from these Out-rages of War meerly by the Law of Nations setting aside the consideration of other Duties for Cum loca capta sunt ab hostibus omnia desinunt esse sacra As soon as any place is taken from the Enemy every thing in it ceaseth to be sacred saith Pomponius And so saith Cicero Sacra Syracusarum victoria profana fecerat The victory made all the sacred things in Syracuse profane Tertullian in his Apologeticks confesseth That War and Victory cannot consist without the subversion of Cities which also cannot happen without some injury done to their tutelar Gods For Temples undergo the same fate that their Cities do and their Priests have an equal share in publick Calamities as other Citizens neither do their consecrated vessels escape better than their profane Tot Sacrilegia Romanorum quot Trophaea tot de diis quot de gentibus triumphi Look how many Victories the Romans had so many Sacriledges they committed and as often as they conquered their Enemies they spoiled and rifled their Gods The cause whereof is this because those things which are said to be sacred are not in truth exempted from humane uses but are made publick as Marsilius Patavinus observes in his Defence of Peace But they are called Sacred Chap. 5. §. 2. from the end whereunto they are destin'd which appears by this That when any People give themselves up to another People or to any King they deliver up that also which is called Sacred as is manifest by the usual form in Livy We the People of Campania do deliver up into your Power and Possession O Fathers Conscript our City Capua our Fields the Temples of our Gods together with all that we have whether Humane or Divine the like we read in Plautus his Amphitryo And therefore as Vlpian concludes There is a publick Right even in things that are sacred And Pansanias tells us That it was a Custom common as well with the Grecians as Barbarians that things Sacred should be disposed of at the Will and Pleasure of the Conquerour So when Troy was taken the Image of Jupiter Hercaeus was given to Sthenelus and many other Examples he there brings And Thucydides confirms this saying That it was a Law among the Graecians Lib. 4. That look whose the Empire was of any City or Countrey whether great or small theirs also were the Temples Wherewith accords that of Tacitus where he saith Annal. l. 12. That all the
Supreme Magistrate according to the Custom of Nations CHAP. VIII Of Empire over the Vanquished in War I. That a Civil Empire whether in a King or a people may be acquired by War and what the effects are of such an acquisition II. Such an Empire may be gained over a people as is merely despotical and then they cease to be a City III. Sometimes a mixt Government is acquired IV. Sometimes even the incorporeal things of the people may be acquired by War where also is handled the Bond given by the Thessalians to the Thebans forgiven by Alexander I. That the Civil Empire as well in a King as people may be gained by War IT is no marvel that he who can bring into subjection every particular person can also subdue the Body Politick whether it be a City or part of a City and whether that subjection be merely civil or merely despotical or mixt This Argument we shall find used by Seneca in that Controversie which is de Olynthio where he brings in one pleading thus He is my Slave whom I bought by the right of War and very expedient it is for you O ye Athenians not only to acknowledge my Title to be just but to defend it otherwise notwithstanding all your great Conquests your Empire also must be confined within your ancient Territories Wherefore Tertullian acknowledgeth That Empires are gained by Armes but enlarged by Conquests So likewise Quintilian Kingdoms Nations and the Bounds of Cities and Countries are determined by the Rights of War Alexander in Curtius claims by this Right saying That Laws are usually given by the Conquerour and received by the Conquered Thus Minio in his Oration to the Romans Liv. l. 35. Why do ye Romans send every year your Praetor with the Ensigns of your Empire the Rods and Axes into Syracuse and other the Grecian Cities in Sicily for which ye can give no other reason but this That having conquered them by your Armes you impose upon them what Laws you please De Bello Gallic Ariovistus in Caesar's Commentaries saith That by the Law of Armes the Conquerour may govern the Conquered in what manner he pleaseth and that the custom of the Romans was to govern those Cities which they had by their Armes subdued not after other mens prescriptions but according to their own will and pleasure Justine likewise out of Trogus tells us That before Ninus Lib. 1. Princes that made War sought not Empire but Glory and therefore were contented with the honour of the Victory but sought not to enlarge their Kingdoms and that this Ninus was the first that ever incroached upon another mans dominions and from him it became a custom Bocchus in Salust pleads That he took up Arms only to defend himself for that part of Numidia from whence he had driven Jugurtha was made his by the Law of Armes But a Right may be gained by a Conquerour either so far only as it was in the King or some other Governour and then he succeeds in his Right only and no farther So Alexander after the Battel at Gaugamela was saluted King of Asia And the Romans also claimed unto themselves all that was Syphax's by the Right of War But when the Huns pleaded to the Romans That the Country of the Gepidae was theirs because they had taken their King Prisoner the Romans denied it because the Gepidae were governed by a Prince rather than by a King for that the Kingdom was not Patrimonial And therefore they conclude That he could not lose more than what was his own Or it may also be gained as it is in the people and then the Conquerour hath as much power to alienate it as the people had and thus do some Kingdoms become Patrimonial as I have elsewhere said Book 1. Ch. 3 Sect. 2. Thus the Persians in Menander plead for the Territories of the City Daras For say they since the City Daras it self is by the Right of War subdued by us it is but reasonable that what belonged to that City should likewise be ours Procop. Vand. 2. So Belisarius having conquered the Vandals would have had Lilybaeum in Sicily yielded up to the Romans because as they pretended the Goths had before given it to the Vandals which the Goths denied II. Such an Empire may be gained over the people as is merely despotical Or an Empire may be yet more absolutely gained For such a Government may by War be gained as that which was before a City may cease to be any more a City but be rather reduced as it were into a Family which may be done either by adding it unto another City as Kingdoms were by the Romans annexed to their Empire as Provinces or by annexing it to no other City but by destroying its Charter and nulling the Government thereof As for example When a King maintaining the War at his own proper charge doth so enslave the people that in his Government over them he minds his own private gain and interest only but neither their profit nor safety which kind of Government is Despotical and not Civil Aristotle thus distinguished them Of Empire De Repub. lib. 7. saith he some are altogether fitted to the profit of the Prince others for the profit and safety of the Subjects this is proper to Monarchy that to Tyranny Now the people that are held under this kind of Government are no longer Citizens but a multitude of Servants in a great Family It was well said of Anaxandrida Servorum nulla est usquam Civitas A multitude of Slaves can never constitute a City Which distinction is allowed of by Tacitus Annal. lib. 12. He did not carry himself saith he in his Government as a Lord over his Slaves but as being chief among his Fellow Citizens So Xenophon of Agesilaus What Cities soever he reduced under his obedieâce he made free by exempting them from the slavery which Captives pay unto their Lord and by contenting himself with that obedience that a free people do willingly yield unto their natural Prince III. A mixt Government is sometimes got by War Whence we may understand the nature of a mixt Monarchy that is between that which is Despotical and that which is Civil as namely when our servitude is mixt with some kind of personal liberty Thus we read that to some people the use of Armes are forbidden by the Conquerour and that no Iron shall be wrought into any thing but such Instruments only as are necessary for ploughing the Earth and such like So some people being conquered are enforced to change their language others to alter the whole course of their lives and the like IV. That even the incorporeal things of the people may be by a War gained Now as whatsoever any particular Prisoner had when he was taken was by the Law of Arms his or theirs that took him so whatsoever belongs to the people in general is his or theirs that subdue them if they will take
Souldiers to satiate their anger with the bloud of the Conquered VII Even Enemies deserving death may be sometimes pardoned Yea though in strictness of justice they have deserved death yet oft-times it is more agreeable to the Goodness Modesty and Magnanimity of a Conquerour to forgive than to revenge Of this mind was King Theuderick in Cassiodore Those Wars have always succeeded well to me saith he which have ended moderately for he can never want the victory that knows how to use it with temperance and clemency Salust ascribes the prosperity of the Romans and the greatness of their Empire âib 2. c. 41. to nothing more than to their promptness to forgive And it was the advice of Tacitus Quanta pervicacia in hostem Annal. l. 12. tanta benificentia adversus supplices To shew as much love and kindness to poor suppliants as courage and resolution towards Enemies Yea and Seneca tells us That the most generous of Beasts did disdain to tear and prey upon things vile and abject Elephants and Lyons scorn things that are prostrate and pass by what they have overcome Lib. 4. The Author to Herennius hath an excellent saying to this purpose Our Ancestors saith he did very wisely observe this custome never to put any King to death whom they had taken in War but why because saith he it would seem unreasonable to use that power which fortune hath now given us to destroy them whom the same fortune not long before had so eminently favoured And why should I now punish them because they have led their Armies against me This having now got the victory I am willing to forget Quia viri fortis est qui de victoria contendant eos fortes putare qui victi sunt eos homines judicare ut possit Bellum fortitudo minuere Pacem humanitatis augere Because it is the part of a valiant Commander to esteem men as Enemies whilst they are able to contend for victory but being overcome then to pity them as men that so valour may end the War and humanity confirm the Peace But you will haply say what if he had overcome you would he have done so wherefore then should you spare him I answer Quia talem stultitiam contemnere non imitari consuevi Because it is my custome to contemn and not to imitate such folly Now if this Author did mean this of the Romans which is very uncertain because he intermixes many strange and indeed Romantick stories with some true ones it manifestly contradicts that which we read in the Panegyrick of Constantine the Son of Constantius He acts the part of a prudent man who having conquered Rebels can bind them to himself by a free pardon but he of a valiant man who having vext them can trample upon them Thou hast revived O Emperour that ancient confidence of the Roman Empire who triumphed in the death of those great Commanders whom they had taken in the War for in those days their Captive Kings after they had graced their triumphs by attending the Conquerours Chariot from the Ports to the most publick place of the City as soon as he turned his Chariot towards the Capitol were hurried away to Execution Only Perseus upon the intercession of Paulus Aemilius to whom he had yielded himself escaped the severity of this custome but the rest having their eyes put out remained for ever after in Chains teaching thereby other Kings rather to preserve their faith and friendship with the people of Rome than to exasperate their justice But these things are written somewhat too loosely Josephus in his History concerning the death of Simon Bar-jorae testifies the same severity of the Romans but he speaks it of such Captains and Commanders only as was Pontius Samnis but not of such as carried the titles of Kings whose words sound thus The conclusion of the triumph was after that the triumphant Chariot was come to the Capitol for there by the Ancient custome the Conquerour was to stay till tidings were brought of the death of that great Commander whom he led in triumph who having an halter cast about him was presently drawn into the Market-place his Keepers whipping him forward for in that place by the custome of the Romans such as were condemned for Capital crimes were put to death and there executed So soon then as it was declared unto the Emperour that his Enemy was dead they immediately proceeded to perform all other the Rites that were in those cases provided very joyfully Orat. in Ver. The very same ceremonies doth Cicero also recite in his Oration concerning Punishments Concerning great Commanders thus Executed Histories afford us examples enough and some few of Kings also as of Aristonicus Jugurth Artabasdus I should be loth to revive this obsolete custome Jos Ant. l. 5. c. 1. Dion yet we read that Joshua put to death those Kings that he took Captives And Dion relates of Sossius That he whipt Antigonus with rods after be had fastned him to his Cross But withal the same Historian wisely adds Which no King ever suffered by any of the Roman Conquerours The same History we may also read in Josephus Ant. l. 15. Eutropius likewise records it of Maximianus Herculius that having slain the Francks and Almains and taken their Kings Captives He exposed them to be devoured by wild Beasts So doth Ammianus concerning a King of the Almains who being taken Captive was crucified Yet even among the Romans there were divers Kings besides Perseus that escaped the severity of that custome as Syphax Gentius Juba and in the time of the Caesars Caractius and others Whence it may appear that the Romans though as Cicero and others blame them for being too severe in this case had always some respect both to the causes of the War and also to the manner of its prosecution when they thus punish'd them And therefore it was no ill advice that M. Aemilius Paulus gave to the Roman Senate in the case of Perseus Si nihil humani metuerent at divinam vindictam timerent iis imminentem qui victoriâ insolentius utuntur Though they stood not in awe of any humane power yet they should do well to fear the anger of the Gods who never failed to avenge themselves on those who abused their favours with too much pride and insolency Plutarch in the life of Agis observes that in the Grecian Wars such reverence was born unto the office and dignity of a King that their very Enemies durst not offer violence to the Lacedemonian Kings An Enemy therefore that considereth not what humane Laws permit to be done but what in equity he ought to do or what Religion and Piety requires to be done forbears the shedding of the blood even of his Enemies neither will he sentence any man to death unless it be to preserve life or livelyhood to himself or for such personal crimes as by the Laws of God or Man deserve death yea and though some
Armies and such like whereby the Conquerour may be secured VII What profit ariseth from this Moderation But that the Conquerour should leave the Conquered possest of his own Kingdom stands not with humanity only but sometimes with policy Among Numa's Laws this is commended for one That in those Sacred Rites wherewith they worshipped their God Terminus Plut. Quaest Rom. qu. 15. he would have no bloud spilt thereby intimating That nothing could more conduce to a lasting Peace between Neighbour Princes than to content to live themselves within their own Bounds It was very well said of Florus Difficilius est Provincias obtinere quam facere viribus parantur jure retinentur It is much more difficult to keep Provinces than to make them for they may be gained by force but they must be kept by justice Not much unlike is that of Livy Lib. 37. Facilius parari singula quà m teneri universa Particulars are more easily gained than Vniversals kept Nor that of Augustus in Plutarch It is better to govern our own well than to be possest of a greater Empire Whereunto we may add that Saying of Darius's Ambassadour to Alexander A foreign Empire is full of danger Thou wilt find it very difficult to hold what thou canst not grasp Some things may be easily gained yet not so easily kept How ready are our hands to catch at that which when they have they cannot hold Which Calanus the Indian Plut. vit Alex. and before him Oebarus Cyrus's Friend did very well emblem out by a dryed Oxe's Hide which being prest down with our feet on the one side riseth instantly on the other And Titus Quintius in Livy by a Tortoise Lib. 27. Val. Max. 4. 1. who whilst he gathers himself up within his Shell is safe but as soon as he thrusts out any one part he is exposed to danger Plutarch thus relates That when the Achaians consulted about the taking of the Island Zant he disswading from it told them That it was a dangerous attempt if like the Tortoise they thrust their head beyond Peloponnesus And herein is that of old Hesiod verified which Plato likewise thus applies Plato de Leg. 3. Dimidium plus toto That sometimes it is better to take up with the one half than to covet the whole When some Nations as Appian notes would willingly have annexed themselves to the Roman Empire they were refused And over other Nations they thought it fitter to appoint Kings than to unite themselves as Provinces And in the judgment of Scipio Africanus the Roman Empire was in his time of so large an extent that as to effect more might well be thought greediness so if they could but keep what they had they might be abundantly happy Wherefore that Prayer whereby in their solemn purgations they invoked the Gods to prosper and enlarge their Empire he so changed that he prayed only That they would preserve it in perpetual peace and safety which the Emperour Augustus thought worthy his imitation and is therefore commended by Dion for that he did never attempt any new Conquest esteeming that which he had already got to be sufficient VIII Examples of the change of Government among the Conquered The Lacedemonians yea and the Athenians also in their Golden Age never challenged the Sovereign Power over any City that they took by War only they required that they should mould their Government according to their own Form For the Lacedemonians used an Aristocratical Government wherein a few of the best governed the rest But the Athenians used a Democratical whereby the Government was wholly setled in the People Lib. 4. de Rep. cap. 11. lib. 5. cap. 7. as Thucydides Isocrates and Demosthenes teach us Nay Aristotle himself confirms as much in several places Tacitus records the like done by Artabanus at Seleucia * Ann. 6. Who assigned the Government of the Common People to the Noble-men according to his own use and custom For he judged it the next way to Liberty to leave it in the People as to leave it in a few was the next way to Tyranny But whether these alterations in Government do conduce any thing to the security of the Conquerour is not our purpose in this place to determine IX If the Empire be assumed to leave some part thereof to the Conquered But in case it be not thought safe for the Conquerour to leave the Conquered altogether free yet may the matter be so moderated that some part of the Government may be left to them or their King with a reservation of some other part to the Conquerour Tacitus tells us That it was the manner of the Romans to make use of Kings themselves as Instruments of subjection Antiochus is said to be Romanis inservientium Regum ditissimus The richest of all the Kings that were subject to the Romans The like we read in the Commentaries upon Musonius namely Of some Kings that were subject to the Romans So in Lucan Atque omnis Latio quae servit purpura Ferro And every King whom Rome's vast Power commands Thus did the Scepter continue amongst the Jews in the Sanhedrim after Archelaus's confiscation And Evagoras King of Cyrus as Diodorus testifies told the King of Persia Lib. 15. That he would obey him but as one King obeyed another And when Darius was overcome Alexander was willing to restore him to his Kingdom but upon this Condition Lib. 17. That he might command others but obey him only Such Kings there were also antiently in Italy who though they ruled others yet were themselves subject to other Kings So in Aeschylus we read That among the Persians there were Reges Regis magni subices Petty Kings Leunclav lib. 18. Lib. 1. c. 3. § 17. Lib. 3. c. 8. § 3. that were subject to the Great Kings As there are now also among the Turks Now as concerning the manner how an Empire may be mixt we have already treated but sometimes a part of a Kingdom being taken away the rest is left to the Conquered as is usual after the Conquest to take away some part of the Fields and to leave another part to the ancient Occupants X. Or at least some liberty Yet when the Conquered are altogether deprived of their Empire may there be left unto them power over their private Estates and some smaller things that are publick as their own Laws Customs and Magistrates Thus Philo in his Embassy to Caius saith That Augustus was no less careful to preserve the Laws peculiar to every Nation than to preserve the Laws proper to the Romans So we read also in Pliny That in Bithynia Lib. 10. Ep. 56. 14. Lib. 3. Ep. 113. being a Proconsulary Province the City Apimaea retained this priviledge That they governed their Commonwealth at their own pleasure And in another place he tells us That it was granted them that they might chuse their own Magistrates and their own Senate The City Sinope though
us that our faith was altogether to be kept For better it was not to admit of some excuses though just from a few than to encourage all to make what excuses they would for the breach of their faith But what things are those which may countervail that which is promised Surely in the first place Whatsoever by any other Contract made since the War is owing unto us by him to whom our promise was made or whatsoever damages we have sustained by him in the times of Truces or in case the Persons or Rights of Ambassadors have been by him violated or in brief if he have done any other thing which between Enemies is not justifiable by the Law of Nations where this also is to be understood That the satisfaction be made between the same persons and that the Right of no third person be thereby injured but yet with this allowance That the Goods of Citizens may stand obliged for the Debts of their own City as those of Subjects may for the Debt of their Prince as we have already shewed Whereunto we may add Lib. 2. c. 2. That it is the sign of a generous Soul strictly to observe his faith in Leagues given notwithstanding all provocations to the contrary by injuries received Upon which account it was that that wise Indian Jarchas so highly commended that King who being much injured by his Confederates yet would never break his faith given saying Philost l. 3. c. 6. Tam sancte se jurâsse ut alteri ne post acceptam injuriam nociturus esset That the Oath he had taken was so sacred that he durst not injure him to whom he had given his faith though he were sufficiently provoked Now look what other Questions usually arise concerning our faith given to Enemies may almost all of them be resolved by applying them to those Rules heretofore prescribed concerning the Obligatory Power as of Promises in general so of those special promises made by Oaths Leagues Sponsions Lib. 2. c. 11. seq and of the Right and Obligation of Kings and concerning the interpretation of such promises as are ambiguous But yet notwithstanding for the better use of what hath been already said and for the clearing of any other doubts which may happen to arise it shall not at all be troublesome to me briefly to unfold such of these special Cases as are most notable and as do most frequently occur CHAP. XX. Concerning the publick Faith Treaties Lots set Combats Arbitrements Surrenders Hostages Pledges I. The division of Faith among Enemies in order to that which follows II. In Monarchies it is in the Kings power to make Peace III. What if the King be an Infant Mad a Prisoner or an Exile IV. In other Governments this power is in the major part V. How an Empire or a part of it or the goods of a Kingdom may be firmly alienated to obtain Peace VI. How far by a Peace made with a King his People and Successors may stand bound VII That what is the Subjects may in Peace be granted away for the publick good but with condition of repairing damages VIII What may be said of things already lost by War IX No distinction here between things got by the Civil Law and things got by the Law of Nations X. With Foreigners what a King doth is held to be for the publick good XI A general rule whereby to interpret Articles of Peace XII In doubtful cases it is credible that it is agreed that things should remain in the state they are at present how this is to be understood XIII What if it be agreed that all things shall be restored to the condition they were in before the War began XIV Then they who being before free and had voluntariy enslaved themselves were not to be made free XV. That damages occasioned in War if left dubious are presumed to be forgiven XVI But not those which before the War were due to private men XVII Punishments also before the War publickly due if left doubtful are believed to be remitted XVIII What is to be said concerning the Right that private men have to require punishment XIX That Right which before the War though publickly claimed was controverted is easily believed to be forgiven XX. Things taken after Peace made to be restored XXI Of agreements whereby things taken in War are to be restored some certain rules XXII Together with the things the fruits and profits are to be restored XXIII Concerning the names of Countries XXIV Concerning the relation that is had to some precedent agreements XXV Of delay XXVI Where the words are doubtful the interpretation must be made against him that gives Laws XXVII Distinction must be made between the giving of a new cause of War and the breaking of Peace XXVIII How a Peace may be broke by doing contrary to that which is presumed to be in every Peace XXIX What if we be invaded by Associates XXX What if by Subjects and how their fact may be judged as approved XXXI What if Subjects engage under another Prince XXXII What if Subjects be invaded explained by distinction XXXIII What if Associates who are likewise distinguished XXXIV How a Peace may be broken by doing contrary to that which was said in the Peace XXXV Whether any distinction is to be made between the Articles of Peace XXXVI What if to the breach of the Articles there be some punishments added XXXVII What if we are hindred by an unavoidable necessity XXXVIII The Peace shall stand firm if he that is injured be willing thereunto XXXIX How a Peace may be broken by doing that which is contrary to the special nature of every Peace XL. What under the name of friendship may be comprehended XLI Whether it be enough to break friendship to receive Subjects and Exiles XLII How War may be ended by lots XLIII How by a set combate and whether lawful XLIV Whether the fact of the King do in this case oblige the People XLV Who is to be judged the Conquerour XLVI How War may be ended by Arbitrement and how it must be understood if it admits of no appeal XLVII Arbitrators in cases doubtful must be so understood as bound to do Right XLVIII That Arbitrators are not to determine of possessions XLIX How far forth the force of a pure dedition extends L. What a Conquerour ought to do as to such as surrender LI. Of a surrender upon conditions LII Who may and ought to be given in Hostage LIII What Right is given against Hostages LIV. Whether an Hostage may awfully escape by flight LV. Whether an Hostage may be lawfully detained upon any other account LVI Vpon the death of him for whom an Hostage is given the Hostage is to go free LVII The King dying who sent the Hostage whether the Hostage may lawfully be detained LVIII Hostages may sometimes be principally obliged and that one of them is not bound for the fact of another LIX What obligation lies upon
pledges LX. When the Right of redemption of things engaged is to be judged as lost I. The Division of Faith in order to what follows ALL agreements between Enemies depend upon Faith either exprest or understood Faith exprest is either publick or private Publick is either that given by supreme or that given by subordinate power That given by the supreme power either puts an end to the War or is of some force the War continuing Among those things that conclude a War some things are looked at as Principals and some Accessaries The principals are those very things that finish it either by their own act as the Articles of agreement or by consent on both sides that it shall be determined by some other thing or by Lots by the event of some Combats the award of Arbitrators whereof that by Lots is altogether fortuitous the other two moderate the case by the strength of the mind or of the body or by the discerning faculty II. The power to make Peace is in the King if the Government be Kingly They that have power to begin a War have also a power by Articles of agreement to to end it * See Bo. 2. ch 15. §. 3. for every man is the best moderator of his own affairs whence it follows that in a War on both sides publick the power of making Peace belongs to them who are entrusted with the Supreme Authority as in a Government truly Monarchical to the King so as he be no ways disabled to exercise that Authority III. What if the King be an Infant For in case a King be not at Years of discretion which in some Kingdoms is determinable by Law * Bo. 1. ch 3. §. 24. Francis King of France being Prisoner to Charles the Fifth Emperour and King of Spain his case about the Dutchy of Burgundy See Lord Herberts Hist of H. the 8th pag. 193. but in others by probable conjectures or if he be not of sound mind he is not capable of making Peace The like may be said of a King that is in Captivity in case that Kingdom had its first rise from the suffrages of the People it being incredible that the People should ever consent to entrust their Government into such hands as were not at liberty to exercise it wherefore in this case also though not the full power yet the exercise of that power and as it were the Guardianship of it is in the people or those whom the people shall surrogate in their stead Thus when Rodolfus the Palatine fled through fear into England and when the Bishop of Mentz was driven out of his Territories by the Bishop of Tryers neither the one nor the other lost their Electorship But yet as to those things that are privately his own a King though a Captive may make any Contract good after the example of those things that we shall say concerning private agreements But what if the King be an exile as Camillus was when he lived amongst the Vejans of whom Lucan writes thus Vejos habitante Camillo Illic Roma fuit is it in his power to make Peace yea surely if it appear that he lives free obnoxious to none for otherwise the condition of an exiled King is not much different from that of another Captive a banished man being but a Prisoner at large Thus Cicero speaks concerning Regulus that he refused to give his opinion in the Senate alledging that so long as he stood bound to his Enemies by Oath he was uncapable of voting as a Senator IV. In other States it lies in the major part But where the Supreme Authority is seated either in the Nobles or in the People it is in the power of the major part of them to make Peace The Decrees either of the publick Senate in the former or of the Citizens in the latter being to be pronounced by such as by use and custome have a Right thereunto according to what we have elsewhere delivered Bo. 2. ch 5. §. 17. And therefore what is thus agreed upon shall oblige the whole yea even those that dissented from them Thus Livy * Lib. 32. Whatsoever is once upon a full debate decreed is to be defended by all even by those who had been before against it Wherewith accords that of Dionysius Halicarnassensis Parendum est his quae pars major decreverit Whatever the major part thinks fit must by all be obeyed So likewise Appian Omnes decreto obsequi tenentur nulla admissa excusatione What is so decreed is by all men to be observed no excuse being admitted of to the contrary With whom agrees Pliny Quod pluribus placuisset cunctis tenendum What pleaseth the greater part obligeth all But those whom Peace obligeth it also profiteth Iisdem volentibus prodest V. How an Empire or any part thereof may be alienated for Peace Now let us see what manner of things they are that are subject to such agreements most Kings now a days because they hold not their whole Kingdoms nor any part of them in propriety but in respect of their fruits and profits only cannot by any Contract or Agreement alienate them * See above Bo. 2. ch 6. §. 3. and what follows Yea and before they receive that great charge of the Empire upon them during which time the People are as yet above them all such acts of alienating the Kingdom or any part thereof may by a publick Law for the future be made absolutely void so that as to what concerns That they shall not be binding at all And credible it is that the People were generally thus minded Ne alioqui si ad id quod interest salva esset actio contrahenti subditorum bona pro debito regis caperentur Lest otherwise if as to that which is so provided against the action should hold good to the person contracting the goods of the Subjects might be taken for the Debt of the King And consequently this caution of not alienating the Kingdom would be in vain But that the whole Empire may be firmly alienated the whole body of the People must yield their consents which may quickly be done by their Representatives which are the three Orders or States of a Commonwealth namely the Clergy Peers and the Commons But that any part of the Empire may be firmly alienated a twofold consent is requisite first of the whole but more especially of that power which is to be alienated which cannot be severed from the body whereunto it grew against its will This was the French Kings Plea why he would not deliver Burgundy as he had upon his Oath agreed and promised But yet in a case of extreme necessity and otherwise unavoidable That very part may firmly conveigh away the Government over themselves unto any other without the consent of the People because credible it is that when that society was instituted this power was reserved But in Kingdoms that are Patrimonial what should hinder a King from alienating
his Kingdom I know not but yet such the case may be that such a King hath no power to alienate any part thereof as if he received the whole as his propriety upon this condition that he should not divide it But as concerning those things which are called the goods of the Kingdom these may also become the Kings Patrimony two ways either as separable from the Kingdom or as inseparably united unto it if this latter way they may be transcribed See Bo. 2. ch 15. but not unless with the Kingdom if the former they may be alienated without it But such Kings whosâ Kingdoms are not patrimonial can hardly be permitted to alienate the Goods of the Kingdom unless it evidently appear by some Primitive Law or by a continued and uninterrupted custome that they may do it VI. How far the people and successors are obliged by a Peace made by the King But how far forth the promise of a King shall bind his Subjects and Successors hath already been declared * See Bo. 2. ch 3. §. 10 c. namely so far as the power obligatory is comprehended in that Government which should be neither infinite nor impaled within in too narrow bounds but to extend so far only as in probable reason it shall be found convenient But in case the King be absolute Lord * See Bo. 3. ch 8. §. 2. over his People as having at his own charge conquered him and so holds them under a Government merely Despotical and not Civil or if he have gained the Dominion not over their persons but over their things as Pharaoh bought all that the Aegyptians had for Corn or as they that admitted of Strangers into their Houses to whom they prescribe what Laws they please if I say the Government be thus absolute then it is another thing For in this case besides that Right which is regal there is an access of another Right which makes that justifyable which a bare regal power could not VII What power a King hath over his Subjects goods to the making of Peace But here there usually ariseth another Question namely What Right Kings have over the Estates of private men in order to the establishing of Peace as having no other Right to that which particularly belongs to his Subjects than what he hath as a King That the things belonging to Subjects are under the supereminent power of the Commonwealth whereof they are a part we have already proved so that that Common-wealth or he that exercises the supreme power in it hath a Right to make use thereof either by even destroying them or by alienating them and that not only in a case of extreme necessity which is even between private men justifyable but when it extends even to the good of the publick which is always to be preferred before any private mans by the general consent of those who first entred into civil society Which notwithstanding is so to be understood that the whole Commonwealth is obliged to repair the damages that shall befal any of her Subjects or Citizens by reason of any such spoil or alienation out of their publick stock or by a publick contribution whereunto even he who hath sustained the loss shall if need be pay his proportion Neither shall that City or Commonwealth stand discharged from this obligation although at present it be not able to satisfie it for whensoever that City shall be enabled this sleeping obligation may rise up against it VIII But what if the things be already lost by War Neither can I here generally admit of the opinion of Vasquius namely that the City is not obliged to repair the damages of her Citizens sustained by the War because such damages are by the licence of War permitted For this Right of War hath only respect to the People of several Nations as we have elsewhere explained it * Bo. 3. ch 6. §. 2. and partly to such as were in open hostility amongst themselves but not to Citizens amongst themselves who being mutually associated and equally engaged in the defence of their City should in equity esteem every mans to be the common loss But yet doubtless it may by the Civil Law be so ordained that no Action shall lye against such a City for any damages sustained by the War to the end that every man may be the more watchful and resolute to defend his own IX No difference between things got by the Civil Law and things got by the Law of Nations Some there are that place a vast difference between those things which belong to Subjects acco ding to the Law of Nations and those things which are theirs by the Civil Law gra ting a larger Right to the King in taking away these without either cause or recompence but not so in the former but erroneously For a Right of Dominion however lawfully gained hath always by the Law of Nature its proper effects that is to say that it cannot be taken away unless it be for such causes as are naturally inherent in Dominion it self or such as arise from some fact done by him that is the right owner X. What is done by a King is taken by Foreigners to be done for a publick good Now this care and inspection that the things of private persons be not alienated unless it be for a publick benefit appertains to the King and to the Subjects as that of repairing of damages doth to the City and each particular Citizen For the bare fact of the King is sufficient to Strangers that contract with him not only in respect of the presumption which the Dignity of his person brings with it but also in respect of the Law of Nations which permits the Goods of Subjects to stand obliged by the fact of the King XI A general rule for the interpreting of Articles of Peace But as to the right understanding of the Articles of Peace what we have said before must here also be observed * See Bo. 2. c. 16. §. 12. The more of grace and favour any Article contains the more extensively it should be taken and the more of rigour it hath the more restrictively it should be understood If we look at the bare Law of Nature the greatest favour that can be granted seems to be this That every man should enjoy his own wherefore where the Articles are ambiguous such an interpretation should be admitted as may lead us to this sence That he that undertakes a just War should receive what he fights for together with his costs and damages but not that he should get any thing more by way of punishment for this savours of rigour which ought to be restrained But because a bare acknowledgment of wrongs done seldome procures a lasting Peace therefore in Articles of Peace such an interpretation should be admitted as may according to the justice of War make the ballance on both sides even which may be done two ways either by an equal composure of
concerning such as have been by the chance of War made Slaves but as concerning the dedition of such who are not banished Lib. 2. c. 21. §. 3. seq but do fly to avoid condigne punishment we have elsewhere treated XLII War sometimes ended by lot To determine a War by lots is not always lawful but then only when we have an absolute propriety in the thing contended for for Cities are to be defended for the preservation of the Lives Goods Chastities and such like of their Citizens And Kings are more strictly bound to defend the general safety of their Kingdoms than to omit those means which for their own and others defence are most natural but yet in case he that is unjustly invaded shall upon due examination find himself too weak to âake any considerable resistance it may seem lawful for him to refer the quarrel to the chance of a lot that so by exposing himself to a danger that is uncertain he may avoid one that is certain of which two evils the lesser is to be chosen XLIII Whether it may be determined by the event of a set number of Combatants But here follows a case very much disputed namely Whether it be lawful to determine a War by the success of a Battel fought by an appointed number of Combatants as between on each side one as that between Turnus and Aeneas Menelaus and Paris or between on each side two as between the Aetolians and the Aelians or between on each side three as that between the Roman Horatii and the Aâban Curatii or between on each side three hundred as that between the Lacedemonians and the Argives Whereunto I answer That if we look no farther than unto the Law of Nations which is external without doubt such a decision is lawful for by that Law every man may destroy his Enemy any way But if according to the opinion of the Ancient Grecians Romans and other Nations every man hath an absolute power over his own life then surely there is nothing therein repugnant to internal justice But this opinion as we have often said is contrary not only to right reason but to Gods precepts for to kill a man for his detaining of such things as we may well spare Lib. 2. c. 7. §. 12. lib. 2. c. 19. §. 5. c. 21. §. 1. is as we have already proved to transgress the rules of Charity Whereunto let us now add That if he to whom God hath given life as a blessing shall set so meanly by it as to cast it away for a trifle he sins both against God and his own Soul If the thing contended for be worthy of a War as if it be undertaken to preserve the lives of many innocent persons as Charles the fifth Emperour pretended when he challenged Francis the first King of France to a single Combat in this case we ought with all our power to endeavour it but to make use of a set Combat Aq. 2.2 c. 95. Aât 8. ibi Cajetan either as a tryal of the goodness of our Cause or as an instrument of Divine judgment is vain and abhorrent from true Piety There is but one only case which renders such a Combate just and innocent and that too but on one side only which is when nothing can reasonably be expected but that he who maintains an unjust cause will otherwise be certainly the Victor and will prosecute his Victory to the destruction of a multitude of Innocents Now he that shall in this case adventure his life by any means whereby he conceives any probable hopes to prevail must needs be innocent or at least so reputed But yet we cannot deny but that many things though not exactly done yet may be by others if not well approved of yet permitted for the prevention of greater mischiefs which could not otherwise be avoided Like as in many places griping Usury and publick Stews are at this Day tolerated Wherefore in that case formerly put of two persons pretending with equal titles to one Kingdom which cannot be divided if they shall offer to try their fortunes in such a Combate the people may safely permit them for the prevention of a more general calamity which must otherwise necessarily ensue The like may be said where such a Combate may put an end to any bloody War Thus did Cyrus challenge the King of Assyria and Metius in Dionysius Halicarnassensis thus concludes That seeing that the contest did not concern the power or dignity of the Nation but of their Princes only it was but reasonable that they only who were concerned should decide the quarrel by Armes between themselves Thus did the Adrianopolitans answer Mahomet when he and Musa Zilebes contested for the Ottoman Empire And so we read of sundry challenges made by several Pretenders to one and the same Kingdom as of that which Charles the Fifth sent to Francis the first King of France and of many Duels fought in such Cases as that of Heraclius the Emperour with Cosroe Son to the King of Persia XLIV Whether the fact of a King do oblige the people Where also we must note That they that cast their Fortunes upon the Tryal of such Combates may haply lose their own Right if any they had to the thing contended for But they cannot transfer any Right to another unless the Kingdom contended for be Patrimonial And therefore for the confirmation of such Agreements the consent not only of the people but of such as have any Right to the Succession if there be any then born would be necessary And so it is the consent of the chief Lord in those Estates that are not free XLV Who is to be adjudged the Conqueror It is likewise frequently disputed where such Combats are permitted which is the conquering Party seeing that neither of them can be said to be absolutely conquered unless all the Combatants on one side be either killed or put to flight As in Livy * Lib. 3. Guic. lib. 1. he that forsaking his ground shall retreat either within his own Bounds or unto places of strength is said to be conquered Amongst those three famous Historians Herodotus Thucydides and Polybius we read of three Questions proposed concerning Victory the first whereof concerns this of set Combats But he that judiciously weighs it shall find that both Parties departed the Field without any true Victory Herod lib. 1. For the Argives were not put to flight by Othryades but marched away by Night stedfastly believing and as confidently proclaiming themselves Conquerours to their own Country-men Thucyd. lib. 1. Neither were the Corinthians routed by the Corcyreans but having fought it out gallantly and perceiving a strong Fleet of the Athenians near them without endangering their Forces with the Athenians they made a safe retreat But Philip King of Macedon having taken a single ship of Attalus forsaken by her Mariners though he were far enough from destroying his whole Fleet yet thereupon as
just War it may be lawfully acquired 524. distinguisht from the manner of holding 42. over some part of the Sea without any other propriety may be possest and how page 91 92 93 Empire and Dominion when they cease 141 142 143. not changed with the imperial seat page 144 Empire may be acquired either so far as it was in the conquered King or absolutely and so despotical page 485 The Empress Irene's design to divide the Empire between her Sons page 127 Enemies to be buried page 216 Enemies are they that denounce War the rest are Thieves and Robbers and Pyrates page 450 An Enemies Country with and how far it may be wasted page 511 c. To Engross the Fruits of one Nation how far lawful page 87 To Enrich our selves with other mens losses unnatural page 147 Ensigns of Sovereignty granted to a Prince of a free People page 41 42 Ensurances void either Party knowing the Goods either to be safe or lost page 164 Epicurus taking away Religion left nothing to Justice but an empty name page 386 Equal Rates set upon things to be exchanged ibid. Equality in Contracts what page 159 Equality what takes place in Acts merely or in part beneficent page 160 Equity takes place where the Obligation is in the literal sense grievous and intolerable page 197 198 Equitable Courts necessary 197. in what Cases especially ibid. Equity the Corrector in such Cases wherein the Land by reason of its generality is deficient ibid. Equity what page 553 Equivocal expressions not admitted but upon great occasions 440. especially in Leagues page 191 Errour whether it makes void an Act 151. in some Points of Religion whether punishable page 391 392 An Errour or mistake unknown to either of the Contractors at the Contract-making must be rectified page 160 Of Errour the punishment is to be taught page 392 An Escape made by a Captive he recovers all he lost by Postliminy page 488 ãâã ãâã ãâã ãâã ãâã page 534 Esseni swear not 220. they wholly abstain from War page 430 Evangelical Precepts whether comprehended in the Law of Nature page 16 Evidences no part of the substance of Contracts page 199 Of Evil the least to be chosen 411. hath the appearance of good page 488 Excursions above ten miles from the Camp makes what is taken theirs that take it page 473 Executioner to be satisfied in the Malefactors crime page 430 431 Exheredation 124. a Son exhederated whether any thing be due unto him ibid. whether a King may exheredate his Son page 130 Exiles their City hath no power over them 115 to inhabit any other Country lawful page 85 Extremity of our Right not to be exacted by War page 518 F. BY the Fact of another none naturally obliged but the Heir page 446 Factors and Masters of Ships how far bound page 154 Faithfulness the foundation of Justice page 151 Faith given to Subjects or Slaves though Rebels as such must be kept page 539 Faith sometimes taken for a full perswasion of the mind page 411 Of Faith whatever is not is sin ibid. Faith to be kept with the faithless 173. with Pyrates and Thieves upon Oath ibid. Faith given by Signs equivalent to Oaths 175. its breach though by Oath not punishable by humane Laws and why 538. sometimes given by silence 569. to be kept with Enemies of all sorts 536. even with Pyrates and Tyrants and when 537. Objections answered page 538 Faith not broken by a generous man though provoked 542. to be kept with the perfidious 540. and when not page 541 Whether private men may be compelled to keep their Faith with an Enemy page 557 558 Faith given in War by private men to be kept even to Pyrates Robbers and Tyrants though given but by Minors page 538 Fides Attica page 498 To preserve Faith an Exhortation to Kings page 571 False speaking to some Persons better admitted than equivocations c. page 444 False speaking to Infants and Mad-men no Lye page 442 Falshood of Joseph and the simulation of Solomon no frauds page 443 Falshood may be sometimes expedient for the common safety ibid. False Prophets page 392 Fate how understood in the Roman Laws page 472 473 Father of a Family what it signifies page 521 Fathers have as much power over their Children as over Slaves page 104 The Fathers the more Ancient the more Authoritative Pref. xix in them three things observable page 25 26 c. A Father when he hath power to sell his Son 104. forfeiting his Estate his Children may be said to suffer but not to be punished page 400 Fear uncertain no ground of War page 71 406 Where the Fear of loss is greater than the hopes of gain none will adventure page 419 By the Fear of War what is gained cannot be recalled yet from a Thief it may if not bound by Oath ibid. Fee-farms and Copy-hold why first granted 129. this done first by the Germans page 38 Ferus and Erasmus great Lovers of Peace Pref. xii their Opinion concerning War refuted ibid. Feuds 51. Empires may be so held from another it implies Obligations personal or real but takes away no Right of Empire or Dominion page 52 To Fight for Pay only unlawful but to receive Pay being lawfully called to fight lawful page 426 No Fighting against Famine page 420 Firing of Houses in War lawful page 434 Fish in Ponds Deer in Parks held in propriety page 135 Fish and Fowl though naturally common yet may the Owner of the Land or Water forbid their taking page 81 Flight from Persecution in what Case lawful page 61 By Flight they that would save themselves in a Siege by the Hebrew Laws might page 508 Force to repel with force naturally lawful 14. not all unjust 12 13. Force for punishment lawful page 434 By Force and Armes to be thrust out of possession what it signifies page 196 The Form of a Commonwealth how changed 540. of denouncing of War page 70 71 Foreigner compared with a Proselyte how they differ page 8 Forts of Friends weakly guarded may to prevent danger to our selves be surprized by us page 82 Frailty humane and Fortunes instability great Motives to clemency page 504 Frater quasi fere alter page 417 Fraud consists in acts negative or positive 438. whether in War lawful 337. in its positive Acts distinguisht if by acts into simulation if in word into a lye page 338 A Free-pass how to be interpreted 560. it extends to Persons Goods and Attendants page 561 Freedom is either Personal or Civil page 42 A Free-pass dyes with him that gave it 561. if during pleasure only how to be understood ibid A Free-State if power over its Subjects page 201 A Free Nation is not subject to another page 49 French Kingdom anciently Elective 144. their custom to avoid Civil War 414. distinct from the Romans 144. divided into Eastern and Western ibid. their Succession Agnatical 130. their custom concerning Captives page 484 Friends to be assisted if with