conduces both to our present matter and to many other things lest we strein the Authority of the Hebrew Law beyond its reach XIV That War is not against the Gospel-Law The first Argument OMitting Arguments of less value in our judgement our first and principal proof that the Right of VVar is not wholy taken away by the Law of Christ shall be that of Paul to Timothy I exhort therefore that first of all supplications prayers intercessions and giving of thanks be made for all men For Kings and for all that are in authority that we may lead a quiet and a peaceable life in all godliness and honesty For this is good and acceptable in the sight of God our Saviour who will have all men to be saved and to come unto the knowledge of the truth Here we are taught three things That it is pleasing to God Kings should become Christistians That being made Christians they should remain Kings Wee pray saith Justin Martyr that Kings and Princes together with their regal power may also attain unto a right understanding and in the Book entitled Clement's Constitutions the Church prays for Christian Magistrates Lastly that this is also pleasing to God that Christian Kings should procure for other Christians a quiet life How so The Apostle sheweth in another place He is the Minister of God to thee for good but if thou do that which is evill be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evill By the right of the sword is understood all coercive power as in the Lawyers sometimes yet so that the highest part of it which is the true use of the sword is not excluded For the illustration of this place much light may be had from the second Psalm which although it were verified of David yet more fully and perfectly pertains to Christ as we learn out of the Acts and the Epistle to the Hebrews Now this Psalm exhorts all Kings to receive the Son of God with reverence i. e. to do service to him as they are Kings as Augustin explains it well whose words are to this effect Herein do Kings as they are commanded serve God as Kings if in their Kingdom they command good things forbid evill things not only pertaining to humane society but also to divine Religion And elsewhere How then shall Kings serve the Lord in fear but by prohibiting with religious severity and punishing offences against the commands of the Lord For he serveth one way as a man another way as a King Again Herein therefore doe Kings serve the Lord as Kings when they do him that service which none can do but Kings XV. The second Argument A Second Argument is deliver'd us by St. Paul in the place cited already in some part out of the Epistle to the Romans where the highest power such as the regall is is said to be of God and is called the ordinance of God whence it is inferr'd that obedience and honour is to be given to it and that from the heart and he that resisteth it resisteth God If by Ordinance a thing were to be understood which God only will not hinder as in vicious acts then would there follow thence no obligation either of honour or obedience especially laid upon the conscience nor would the Apostle say any thing where he so much extols and commends this power which might not agree to robbing and stealing It follows therefore that this power be conceiv'd to be ordained by the will of God approoving it whence it further follows that seeing God wills not contraries this power is not repugnant to the will of God revealed by the Gospel and obâ—…iging all men Nor is this Argument avovded because the persons that were in power when Paul wrote are said to have been enemies to Christian piety For first that is not true of all Sergius Paulus Propraetor of Cyprus had given his name to Christ before this time to say nothing of the King of Edessa of whom there is an old tradition grounded as it seems on truth though perhaps a little mixed with fables Moreover the question is not of the persons whether they were impious but whether that function in them were impious we say the Apostle denys that when he saith the function even for that time was ordained of God and therefore to be honoured even within the recesses and secrets of the heart where God alone hath Empire Wherefore both Nero might and that King Agrippa too whom Paul so seriously invites to his Religion might subject himself to Christ and retain the one his regal the other his imperial power a power which without the right of the Sword and of Arms cannot be understood As then of old the Sacrifices according to the Law were pious although administred by impious Priests so Empire is a pious thing although it be in the hand of an impious Prince XVI The third Argument THe third Argument is from the words of John the Baptist who being seriously asked by the Jewish Souldiers many thousands of that Nation served the Romans in their Wars as Josephus and other writers cleerly tell us what they should do to avoid the wrath of God He answered not that they should forsake VVar as he must have answered if that be the will of God but abstain from violence and falshood and be content with their wages To these words of the Baptist containing an approbation of VVar plain enough many answer The Baptists prescripts are so different from the precepts of Christ that we may conceive their Doctrine not to be the same Which I cannot admit for these reasons John and Christ use the same beginning and declare the sum of their doctrine in the same words Amend your lives for the kingdom of Heaven is at hand Christ himself saith the Kingdom of Heaven i. e. the new Law for the Hebrews use to stile the Law by the name of Kingdom began to be invaded from the days of the Baptist. John is said to have preached the Baptism of repentance for the remission oâ—… sins just as the Apostles are said to have done in the name of Christ. Joâ—… requires fruits meet for repentance and threatens destruction to them that bring not forth such fruit He requires works of Love above the Law The Law is saiâ—… to have continued unto John as if 〈◊〉 more perfect doctrine had from him begun And the beginning of the Gospell is deduc'd from John John himself is therefore greater than the Prophets being seâ—… to give saving knowledge to the people and to Preach the Gospell Nor doth 〈◊〉 any where distinguish Jesus from himseâ—… by the difference of precepts only thâ—… things delivered by John more geneâ—…ly and confusedly and in the mannâ—… of rudiments are more plainly and fully declared by Christ the true light but
that every 〈◊〉 would scape unpunished if it were sufficient in any manner to make profession of repentance God himself doth not always remit all punishment to the penitent as appears even by Davids example Wherefore as God might remit the penalty of the Law that is violent or otherwise immature death and yet inflict no small evils upon the offender so now also may he remit the punishment of eternal death and in the mean time either himself punish the sinner with immature death or be willing he should be so punished by the magistrat LXXXIX Another objection answerd about precision of repentance AGain others find fault that together with life space of repentance is also cut ost But these men are not ignorant that pious Magistrats have great care hereof and appoint not any one to to be executed without some time allowed wherein he may acknowledge his sins and seriously detest them Which kind of repentance though works intercluded by death follow not may be accepted by God as is proved by the example of the Thief crucified with Christ. If it be said a longer life might be profitable to a more serious repentance and amendment it may be answer'd Men are found sometimes such to whom that of Seneca may be spoken justly We will do you all the good that can now be done you 〈◊〉 put you to death And that also of thâ—… same Author There is but one way fâ—… them to cease to be evil that is to ceâ—… to be Likewise said Eusebius the Philosopher This then beside what hath been said in the beginning of our work be answer'd to them who would have either all or capital punishments without any exception forbidden Christians contrary to the Apostles doctrin who having included in the regall office the use of the sword as the exercise of Divine revenge in another place exhorteth to pray that Kings may be made Christians and as Kings be a protection to the innocent This cannot be obtain'd such is the improbity of a great part of men even after the propagation of the Gospel unless the boldness of some be repressed by the death of others and thus too among so many punishments and executions of the guilty innocency is hardly enough secured Nevertheless it is not amiss to propose to the imitation of Christian Rulers at least in some part the example of Sabacon King of Egypt for his piety very famous by whom Capital punishments with most happy success were commuted for tasks and malefactors condemned to work as Diodorus relates and Strabo saith there are some Nations neer Caucasus among whom the greatest offenders received not the sentence of death Nor is that of Quintilian to be despised No man will doubt but if wicked men may by any means be recalled unto a right mind as sometimes it is known they may it is better for the Commonwealth to save than to destroy them Balsamon notes that the Roman Laws which imposed penalty of death were most of them changed by the later Emperours being Christian into other punishments to the end a deeper impression of repentance might be made upon condemned persons and the continuance of the punishment might serve the more for example XC Three Inferences from the former Doctrine OUt of these things last spoken it may be collected how unsafe it is for a private Christian whether for his own or for the publick good to take punishment of any wicked man especially capital though we have said it is sometimes permitted by the Law of Nations Whence the manner of those people is to be commended amongst whom such as go to Sea have commission from the publick Power to pursue Pyrats if they find any that they may use the occasioâ—… given not as by their own adventure be publickly commanded Not unlike 〈◊〉 this is another custom receiv'd in many places that unto criminal accusations are admitted not all that please but certain men upon whom by publick authority that office is imposed that no man may do any thing at all tending to the shedding of anothers blood but by the necessity of his office Hither perteiâ—… the canon of the Eliberan Synod If any believer turn informer and by his accusation any be proscribed or put to deâ—…h Our decree is that he shall not no 〈◊〉 〈◊〉 the end receive Communion Lastly this also is understood by what hath been said that a man truly Christian is not well advised nor doth it become him to affect and thrust himself into publick Offices that have judgment of blood and think and profess it fit that power of life and death over his fellows should be committed to him as most excellent 〈◊〉 all and as it were a God among men For certainly what Christ admonisheth that it is dangerous to judge of others because such judgment as we give must we in like cases expect from God is not impertinent in this place XCI Whether human Laws that permit the killing of some men give the killers a true right before God or only impunity among men THis is a noble question and Covarruvias and Fortunius answer that such Laws give only impunity whose opinion is so displeasing to Ferdinandus Vasquius that he calls it an ungodly opinion No doubt as we have said elswhere the Law may do both in certain cases but whether it will or no is to be understood partly by the words partly by the matter of the Law For if the Law give indulgence to passion it takes away human punishment not the fault as in case a husband kill his Adulterous Wife or the Adulterer But if the Law respect the danger of future evill by delay of punishment it is to be conceived to grant right and publick power to a private man so that now he is not private Of this kind is that Law in Justinians Code under the rubric quando liceat unicuique c. Where every man hath licence given him to oppose force against plundering and pillaging Soldiers this reason being added For it is better to meet with them it time than to seek redress after the injury done We therefore permit you to defend avenge your selves and what is too late punished by judgment we suppress by edict that none spare a Soldier but use his weapon against him 〈◊〉 thief And the subsequent Law aboâ—… desertors saith Let ail men know thâ—… have power given them against publicâ—… robbers and desertors that run from thâ—… colours and all are ministers of publicâ—… revenge for the quiet of all To this purpose is that of Tertullian Against Trâ—…tors and publick enemies every man is a Soldier And herein differs the right 〈◊〉 killing exiles whom they call Banniâ—… from this kind of Laws because there precedes a special sentence here a general Edict the fact being evident obteiâ—… the force of a sentence pronounced XCII What acts are not punishable by men NOw let us see whether
may suffer for the evil deed of their King or Governour We do not mean if the peoples consent be added or any deed of theirs by it self worthy of punishment but we speak of that contract which springeth from the nature of that Body whose Head is the King and members were the rest God indeed for David's sin destroyed the people with pestilence and truly as David thought being innocent but it was God who had most full and absolute right over their lives Mean while the punishment was not the peoples but David's for as a Christian writer saith It is the most bitter punishment to Kings that do amiss to see their people suffer This is all one saith the same Author as if he that hath done ill with the hand should be Beaten on the back So Plutarch in the like argument compares it to a physicians method in curing one part to open a vein in another Why men may not do so we have said afore The same is to be concluded of punishing particulars in things proper to them that have not consented for the offence of the Society And lastly the cause why an Heir being liable to other debts is not liable to the punishment of the deceased is for that the Heir bears the persâ—… of the deceased not in respect of meâ—… which are merely personal but of goods which are engaged Dion Prusaeensis What the Ancestors owed their posterity must pay for they have not refused the Inheritance CV OF UNJUST CAUSES Causes of War some are justifick others suasory POlybius who first noted the difference calls the former 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pretences because they are wont openly to be shewed Livy several times useth the word Title the later he stileth by the general name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Causes So in the war of Alexander against Darius the Pretence was Revenge of Injuries which the Persians had done the Grecians the Cause was desire of Glory Empire and Riches whereto was added great Hope of facility conceived from the expeditions of Xenophon and Agesilaus So the pretence of the second Punick war was the Controversy about Saguntum the cause was the indignation of the Carthaginians for the Agreements which the Romans in unequal times had extorted from them and their courage raised by the prosperity of their affairs in Spain noted by Polybius Likewise Thucydides judgeth the true cause of the Peloponnesian war to have been the Athenians growing Greatness which brought them into suspicion with the Lacedemonians but the pretence was the controversy of the Corcyreans Polideans and other things where yet be promiscuously useth the termes pretence and cause There is the same difference in the Oration of the Campanians to the Romans when they say they fought against the Samnites in word for the Sidicines in deed for themselves because they perceived when the Sidicines were consumed the fire would pass on to them And Livy relateth how Antiochus took arms against the Romans in shew for the death of Barcilla and some other matters is truth because he had great hope of success by reason of the decayed disciplin of the Romans So Plutarch observeth it was not truly objected to Antony by Cicero that He was the cause of the Civil war when Caesar resolved upon a war had only taken the pretext from Antony CVI. Wars without any cause are wild and brutish SOme upon neither of these causes are carried into wars greedy of dangers as Tacitus speaks for dangers sake The faults of these men exceed every human name and is by Aristotle termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serity Of these Seneca I may say it is not cruelty but ferity which takes pleasure in blood we may call it madness whereof there be sundry sorts and none more evident than that which runneth to the slaughter of men and cutting them to pieces To which sentence very like are those words of Aristotle Very cruel indeed is he to be accounted who makes his friends his enemies out of greediness to fight and shed blood Dion Prusaeensis Without cause to be carried into wars and fights is meer madness that seeks mischief to it self And the forecited Seneca saith No man is so inhuman as to wast human blood or very few CVII Against wars which have not justisick causes or not truly such BUt the greatest part of those that go to war have suasory causes and those either without justifick causes or with them Some care not at all for justisick causes of whom that may be said which is in the Roman Lawyers He is a Robber who being asked of the cause of possessing brings no other but that he doth possess Aristotle of those that perswade to war Men that oftentimes regard not at all whether it be just or no to subdue their harmless neighbours Such a one was Brennus who said Let the strongest take all Such a one was Annibal in Silius Whose right was his sword Such also was Attila and such are all that use these words No matter how the war begins If we can bring it to our ends To these men you may fitly apply that of Augustin To wage war against the neerest and thence march on to others and out of a desire of rule to conquer Nationâ—… that provoke you not what is it to be named but Great Robbery In Cicero we read The height of mind which is discoverd in dangers and labours if it want justice is so far from vertue that 't is rather immanity and an enemy to all humanity Andronicus Rhodius Who for to gain much receive whence they ought not these are call'd evil impious and unjust such as are tyrants and the Plunderers of Cities Others do allege causes as it were justifick which being weighed in the scale of right reason are found unjust and it appears as Livy speaks not a contention about right but an offer of violence Many Kings saith Plutarch use the two names of Peace and war not to that which is just but to that which is expedient CVIII Fear of an uncertain danger no just cause of war AMong the unjust causes of war is fear taken from neighboring power Which fear we have said above is not sufficient For that Defense may be just it ought to be necessary it is not so unless we be sure not only of the power of a neighbour but of his will sure by that certainty which hath place in matter of morality Wherefore their opinion is not to be allowd who make it a just cause of war if a neighbour hindred by no agreement build a Castle on his own ground or some other fortification which may sometime do us hurt For against such fears contrary fortifications in our land and the like remedies not warly forces are to be provided Unjust therefore were the wars of the Romans upon Philip of Macedonia of Lysimachus upon Dèmetrius unless
bound for a debt yet therein is nothing contrary to nature and the custome not of the Greeks only but of other Nations prevailed on the other side In like manner to recover 〈◊〉 Citizen taken captive by manifest in juâ—…y are the Citizens of that City where the injury was done reteined Wherefore â—…ome at Carthage would not suffer Ariâ—…on the Tyrian to be taken For said they the same will befall the Carthaginians at Tyre and in other towns of Trade wherto they often resort Another specier of violent execution is Pignoration among divers Nations which the later Lawyers call the right of Reprizals the Saxtus and the English Withernam and the French even when it is obtained of the King Letters of Marc. And this haâ—… place say the Lawyers where right is denyed XVIII Of Reprizals after right denyed Life is not engaged RIght of Reprizals cometh not only if Judgment cannot within fit time be obtained against the guilty part 〈◊〉 Debtor but also if in a matter not doubtful for in a doubtful matter there is 〈◊〉 presumption for them who are elected 〈◊〉 publick judgments judgment be given plainly against right For the authority of the judge is not of the same valâ—… over foreiners as over subjects Even amongst subjects it taketh not away wâ—… was truly owed A true Debtor 〈◊〉 he be abslved yet by nature remains 〈◊〉 Debtor saith Paul the Lawyer Aâ—… when by the injury of the judge the Cuâ—…tor had taken away from the owner a thâ—… which was not the debtors as engage to him and the question was put wheâ—… the debt being paid the thing ought 〈◊〉 restored to the Debtor Scaevola prov'd it ought to be restored There is this difference that subjects cannot by force hinder the execution even of an unjust sentence nor lawfully pursue their right by force by reason of the efficacy of the power over them but foreiners have right to compell which yet they cannot use lawfully so long as they may obtein their own by judgment Upon such a ground then that either the bodyes or movables of his subjects who renders not right may be taken 't is not introduc'd indeed by nature but commonly received by custome The most antient example whereof is in Homer where Nestor is related for horses taken from his father to have driven away the Cattell of the Elidenses and in the same narrations All they were by proclamation call'd together to whom the Elidenses were any thing endebted to the end that every one might have his part But that the life of innocent subjects should be engaged for such a cause perhaps was believed amongst some people upon this principle that they believ'd every man had full right over his own life and that might be transferd on the Common-wealth which we have said elswhere is not probable nor consentaneous to sounder Theology Nevertheless it may fall out not by intention but by accident that they may be slain who by force will hinder the execution of right But if this be foreseen by the Law of charity we have shewed other where the prosecution of right is rather to be omitted seeing by that law the life of man ought to be more esteemed among Christâ—… especially than our Goods as we here demonstrated already XIX A distinction in this matter 'twixt the Law Civil and the Law of Nations BUt in this matter as well as in others we must beware that we confound not those things which are properly of the Law of Nations and those which are constituted by the Civil Law or the agreements of people By the Law of Nations are under pignoration all subjects doing injury who are such by a permanent cause whether they be natives 〈◊〉 strangers not they that are in any Countrey passing through it or staying a liâ—… while For pignorations are introduced after the example of burthens which are brought in for discharging of publick debts from which they are freed who only for a time are subject to the Laws of the place Yet from the number of subjects are exempted by the Law of Nations Embassadors not sent unto 〈◊〉 enemies and their Goods But by the Civil Law of States are usually excepted the persons of women and Infants and the Goods also of Scholars and Merchants By the Law of Nations every one hath the right of pignoration as also at Athens in the apprehension of men By the Civil Law of many Countries it is wont to be asked in some places of the Highest power in some of the Judges By the Law of Nations ipso facto the dominion of the things taken is acquired to the sum of the debt and costs so that the â—…sidue ought to be restor'd By the Civil Law they that are concernd are wont to be cited and the things are to be sold by publick authority or addicted to those that are concern'd But these and other points are to be learned of the Civil Lawyers and namely of Bartolus who hath written Of Reprizals Onely this I will â—…ere add because it belongs to the molliâ—…ying of this right rigid enough of it self That whosoever by not paying what they â—…wed or by not doing justice gave cause â—…o pignorations they are obliged by natural and Divine Law to repair their â—…osses who are dammaged thereby XX. Of just and solemn War by the Law of Nations Between whom this war is and that it must be denounced ABove we began to say that a just war in approved authors is often called so not from the cause whence it ariseth nor from the greatness of the actions but by reason of some effects of law What this war is is best understood by the definition of enemies in the Roman Lawyers Enemies are they who against us or against whom we do publickly decree war the rest are theeves or robbers saith Pomponius and so saith Ulpian too Where what they speak of the Roman people we must understand of every supreme power He is an enemy saith Cicero who hath a Commonwealth a Court a Treasury consent and concord of Citizens and some way if occasion be of peace and league Yet doth it not presently cease to be a Commonwealth or City if it commit some unjust act even in Common nor is a company of Pirats or Robbers a Commonwealth though perhaps they keep a kind of equality among themselves without which no company is able to consist For These associat themselves to do mischief They although sometimes they are not without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with every other Nation or according to customs So the Greeks at what time it was accounted lawful to take spoil at Sea absteined from slaughters and populations by night and from stealing Oxen that plowed
the Law of Nations but that it may shew a presumtion which yet by strong proofs to the contrary may be overthrown So in our Holland long since Anno 1338. in the heat of War I have found it was judged in full Senate and upon that judgment passed into a Law XXXIX By the Law of Nations the things are made ours which our enemies took from others by war ANd this is without Controversy if we respect the Law of Nations Things taken by us from the enemies cannot be challenged by them that had possessed them before our enemies and had lost them by war because the Law of Nations made the enemies first masters by external dominion and then us By which right among other arguments Jephtha defends himself against the Ammonites because that Land which the Ammonites challenged by the Law of war had passed from the Ammonites to the Hebrews as also another part from the Moabites to the Amorites and from the Amorites to the same Hebrews So David accounteth that for his own and divides it which he had taken from the Amalekites the Amalekites formerly from the Philistins Titus Largius in Dionysius Halicarnassensis when the Volscians requested to have their old possessions again gave his opinion in the Roman Senate thus We Romans believe those possessions to be most honourable and just which we have taken by the Law of War nor can we be induced by a foolish facility to part with the monuments of our valour and restore them to those that were not able to keep them Nor do we judge such possessions to be communicated only to our Countrymen now living but to be left to our posterity So far are we from relinquishing what we have got and dealing with our selves as if we were our own enemies And in the answer of the Romans given to the Aurunci We Romans are of this Judgment what one hath gotten of his enemies by valour he may transmit to his posterity by right Livy after his narration how the land neer Luca was divided by the Romans notes That Land was taken from the Ligures and had been formerly the Ethruscians By this right was Syria reteined by the Romans as Appian notes and not restored to Antiochus Pius from whom Tigranes the Romans enemy had forced it and Justin out of Trogus makes Pompey answer the same Antiochus in this manner As he did not deprive him of his Kingdom when he had it so would he not restore him to the Kingdom he had lost to Tigranes and knew not how to keep And likewise those parts of Gallia which the Cimbrians had taken from the Galls the Romans took for their own XL. Of the Right over Captives Their Condition and the reason of it IN the Primitive state of Nature no men are servants yet is it not repugnant to Natural Justice that by the fact of man that is by Covenant or transgression servitude should come in But by that Law of Nations of which we now speak servitude is of larger extent both as to persons and as to effects For if we consider Persons not only they that give up themselves or promise servitude are accounted for servants but all indeed that are taken in publick solemn War after they are brought within the guards as Pomponius saith Nor is Transgression necessary but the lot of all is equal even of them who by their ill fortune after war is on the suddain begun are deprehended within the bounds of the enemies Nor are they servants only themselves but also their posterity for ever to wit they that are born of a mother being a servant after servitude Now the effects of this right are infinite so that as Seneca the Father said there is nothing which is not lawful to a Master over his servant No suffering which may not freely be imposed on him no work which may not every way be commanded or extorted from him so that even the cruelty of Masters toward servile persons is unpunished unless so far as the Civil Law sets a measure and a penalty for cruelty We may observe saith Caius that Masters among all Nations equally have had power of life and death over their servants Then he addeth that limits were appointed to this power by the Roman Law to wit on Roman ground Moreover all things which are taken with the persons are acquir'd to the Master The servant himself who is in the power of another saith Justinian can have nothing as his own Whence is refelled or at least restrained their opinion who say incorporal things are not acquired by the Law of War For it is true they are not primarily and by themselves acquired but by means of the person whose they were Yet here are to be excepted those things which flow from a singular propriety or the person and therefore are unalienable as the right paternal For these if they can remain remain in the person if not they are extinguished Now all these things were introduc'd by the Law of Nations for no other cause but that the Takers tempted by so many commodities might willingly abstein from that extreme rigour whereby they might kill those they had taken both at the instant and afterward as we have said afore The appellarion of servants saith Pomponius is derived hence that Commanders are accustomed to sell Captives and so preserve and not kill them I said that they might willingly abstein for here is nothing like a Covenant whereby they may be Compeld to abstain if you look upon this Law of Nations but a manner of perswading from consideration of that which is more profitable And for the same cause this right is also transcribed to others just as the dominion of things The reason why this dominion was extended to the Children is because otherwise if the Takers should use their highest right they would not be born Whereto is Consequent that the Children born before that calamity unless they be taken too become not servants And the reason why it pleasd the Nations that the Children should be of their Mothers condition is because servile copulations were neither regulated by Law nor by certain custody so that no sufficient presumption could shew the Father So is that of Ulpian to be understood The Law of Nature is this that he which is born without lawfull Matrimony should follow the Mother That is The Law of general custom drawn from some natural reason as we have elswhere shewed that the word Natural Law is taken Now that these rights were not in vain introduced by the Nations may be understood by example of Civil Wars wherein for̄ the most part we see those that are taken slain because they could not be brought under servitude which Plutarch also hath noted in the life of Otho and Tacitus in the second of his Histories XLI This right over Captives prevailed not among all Nations nor doth it prevail
for the glory of Empire are to be waged with less bitterness That hath place often which is in Cicero concerning the war of Caesar and Pompey It was a dark War a Contention 'twixt most famous leaders many doubted what was best And what he saith elswhere Though we were in some fault of human error yet certainly we are free from wickedness Just as in Thucydides things are said worthy of pardon which are done not out of malice but rather by mistake What Brutus wrote of Civil I think may be well referd to most wars They are more sharply to be forbidden than prosecuted And where Justice doth not exact this yet 't is agreeable to Goodness agreeable to Modesty agreeable to Magnanimity By pardoning was increased the Greatness of the Roman People saith Sallust Tacitus No less Gentleness is to be used toward suppliants than stifness toward an enemy It is a memorable passage in the fourth Book to Herennius Well did our Ancesters observe this to deprive no King of life whom they had taken in War Why so Because it was not meet to use the power fortune had given in the punishment of them whom the same fortune so lately had placed in the higest dignity But did he not lead an Army against us I will not remember that Why so Because it is the part of a valiant man to take them for enemies that contend for victory and to look upon the conquered as men that valour may diminish the danger of War and Courtesy may encrease the honour of Peace But would he have done so had he overcom Why then do you spare him Because I use to contemn such folly not to imitate it Perseus Syphax Gentius Juba and in the time of the Cesars Caractacus and others escaped capital Punishment so that it may appear both the causes of war and the manner of waging it were considerd by the Romans whom yet Cicero and others do confess to have been somewhat too sharp in the use of Victory VVherefore M. Aemilius Paulus in Diodorus Siculus not amiss admonisheth the Roman Senators in the Cause of Perseus If they feared nothing human yet they should fear divine revenge imminent over them that use their victory with too much pride and insolence And Plutarch notes in the wars among the Greeks the very enemies held their hands from the Lacedemonian Kings in reverence of their dignity An enemy therefore that will regard not that which human Laws permit but that which is his duty that which is good and pious will spare even an Enemies blood and will put none to death but to avoid death himself or somewhat like death or els for sins proper to the person which amount to capital offences And yet to some that deserve death he will forgive either all punishment or that of death either for humanity sake or for other probable causes Excellently saith the now-cited Diodorus Siculus Expugnations of Cities prosperous fights and whatsoever is in War successfull more often proceed from fortune than from valour but in the highest power to bestow mercy upon the Conquered is the work of Providence alone Now concerning the slaughter of them who are killed by chance not on purpose we must remember it is a part of mercy if not of Justice not without great causes and such as conduce to the safety of many to enterprize ◅uch a thing whence destruction may come upon the innocent Polybius is of this mind saying It is the part of good men not to wage a destructive War no not with the bad but so far that offences may be repaird and amended not to involve the innocent with the guilty in the same ruine but for the innocent to spare the guilty also XLV Children Women old Men Priests Scholars husbandmen are to be spared UPon those premises 't wil not be hard to determine of the specials that follow Let age excuse a child sex a woman saith Seneca in the Books where he is angry with Anger God himself in the wars of the Hebrews even after peace offerd and refus'd will have women and infants spared besides a few Nations excepted by special command against which the war that was was not of men but of God and so 't was called And when he ordered the Madianitish womē to be slain for a proper crime of theirs he excepted Virgins that were untoucht Yea when he had very severely threatned the Ninivites with destruction for their most heinous sins he suffered himself to be restreined by compassion upon many thousands of that age that knew not good from evil Like whereunto is that sentence of Seneca Is any one angry with children whose age doth not yet discern the differences of things If God hath done and determined thus who may without injustice slay any men of what sex or age soever without any cause being the giver and Lord of life what is fitting for men to do to whom he hath given no right over men but what was necessary to human safety and the conservation of society Add here concerning children the judgment of those Nations and times wherein equity most prevailed We have Arms saith Camillus in Livy not against that age which even in taking of Cities is spared but against armed men And this is among the Laws of War he means the Natural Laws Plutarch speaking of the same thing There are saith he among good men certain Laws of War too VVhere note that among good men that you may descriminate this Law from that which is customary and consisteth in impunity So Florus saith It could not otherwise be without violation of integrity In another place of Livy An age from which Soldiers in their anger would abstein And elsewhere Their cruel wrath went on even to the slaughtering of infants Now that which hath place in children always that have not attained the use of reason for the most part prevails in women that is unless they have committed something peculiarly to be avenged or do usurp manly Offices For it is a sex as Statius speaks that hath nothing to do with the sword Alexander in Curtius I am not used to wage war with Captives and Women he must be armed to whom I am an enemy Grypus in Justin None of his Ancestors among so many domestick and external wars did ever after victory shew cruelty to women whom the softness of their sex exempteth from perils of War and the rough handling of the Conquerors Another in Tacitus He carried arms against armed men not against women Valerius Maximus calls it barbarous and intolerable cruelty which Munatius Flaccus shewed to Infants and Women Latinus Pacatus saith Women are a sex which wars do spare Papinius hath the same of old men They are a company violable by no arms The same is to be determined universally of males whose course of life abhorres from war By the Law of War
what she had already Wherefore that form of prayer whereby the Gods were entreated to advance the State of Rome he amended praying that they would be pleased but to preserve it as it was The Lacedemonians and at first the Athenians challenged to themselves no Empire over the Cities they had taken only they required them to use a form of Government accommodate to theirs the Lacedemonians under the power of the Chief the Athenians at pleasure of the people as Thucydides Isocrates Demosthenes declare and Aristotle too in his fourth De repub The like was done as Tacitus relates by Artabanus at Selâ—…ucia He committed the common people to the Chief men according to his own use for a popular Government is free the domination of a few more neer to royalty But whether such Changes make for the Conquerors security is not of our inspection If it be less safe to abstein from all Empire over the Conquered the matter may be temper'd so that some part of the government may be left to them or their Kings Tacitus calls it a custom of the Roman people to have Kings also for instruments of servitude So among the Jews the Scepter remâ—…ned in the Sanedrin also after the consâ—…cation of Archelaus Evagor as King of Cyprus as 't is in Diodorus said He would give obedience to the Persian but as a King to a King And Alexander several times offerd to Darius bâ—…g overcome this condition that he should rule over others and be subject unto Alexander We have spoken of mixed Empire elswhere To some one part of the Kingdom hath been left as a part of their Lands to the old Possessors Again when all Empire is taken from the Conquerd there may be left them about private affairs and publick to of less moment their own Laws and customs and their own Magistrats So in Bithynia a proconsular Province the City Apamaea had the privilege to administer the Commonwealth their own way as Pliny tells us in his Episttes and in other places the Bithynian had their own Magistrats their own Senate And so in Pontus the Amisen's City used their own Laws by the favour of Lucullus The Gobths also left to the Romans the Roman Laws A part of this indulgence is not to deprive the Conquerd against their perswasion of the use of their old Religion Which as very grateful to the Conquerd so to the Conqueror it is not hurtful as Agrippa proves in his Oration to Caius related by Philo in his Embassy And in Josephus both Josophus himself and Titus the Emperor object to the rebells of Jerusalem that by the indulgence of the Romans they had so much privilege in their own Religion as to keep out Aliens from the Temple even at the peril of their lives But if the Conquer'd have a false Religion it will belong to the Conquerors care that the True be not opprest which was the care of Constantin when he had broken the party of Licinius and after him of the French and other Kings The last Caution is that even in the fullest and as 't were herile Empire the Conquered be us'd with Clemency and so that their Interest be taken in with the Interest of the Conquerour Cyrus bade the overcom Assyrians be of good cheer They should be in as good case as they had been their King only changed They should have their Houses Lands Wives and Children as in times past and if any one should injure them He and His would right them In Sallust we read The people of Rome conceived it better to get friends than servants and they thought it safer to rule over willing men than forced The Britains in the times of Tacitus did cheerfully come to the musters and pay tribute and perform offices injoin'd them if they were not injur'd Injuries they could not endure being subdued into obedience not yet to servitude That man of Privern being asked in the Roman Senat what peace the Romans could expect from them answerd If you grant us a good Peace faithful and firm if an evil Peace not lasting He adds a reason Believe it no people no man will abide longer than he must needs in that condition that is not pleasing So Camillus said It is the firmest Empire wherewith the subjects are best contented Hermocrates in Diodorus It is not so honorable to overcome as to use the victory with gentleness and moderation LV. Restitution of things unjustly taken away Objections answer'd THings gotten by unjust War are to be restored as we have said above and not onely by those that took them but also by others to whom the things by any means are come For no man can transfer upon another more right than he had himself say the Authors of the Roman Law which Seneca briefly explains No man can give what he hath 〈◊〉 He had not dominion internal who was first Taker wherefore neither will he have it who derives his title from him the second then or the third Possessor hath received that dominion which we call external that is this benefit that every where he is by judiciary authority and power to be maintained as the Owner which yet if he use against him from whom the things were by injustice taken away he will do dishonestly Such things therefore are to be rendred to those from whom they were taken away which we see hath been oft times done Livy when he had related how the Volsci and Aequi were conquer'd by L. Lucretius Tricipitinus saith the spoyl was expos'd in Campus Martius that every one for the space of three daies might know and receive his own The same Historian when he haâ—… shewed that the Volsci were overthrowâ—… by Posthumius the Dictator Part of 〈◊〉 spoyl saith he was restored to the Latins and Hernicians knowing their 〈◊〉 goods part the Dictator sold sub hasâ—… Elswhere Two daies were given the Owners to find out their Goods Polybiâ—… saith of L. Aemilius Conquerour of the Galls He rendred the prey to those from whom 't was taken That Scipto did the same Plutarch and Appian testifie when having taken Carthage he had found many Donatives there which the Carthaginians had brought thither out of Cities of Sicily and other places This act of Scipio's is expressed at large by Cicero The Rhodians restored to the Aâ—…henians for Ships of theirs which they had recovered from the Macedonians Goods also iâ—… former times consecrated at Ephesâ—… which the Kings had appropriated the Romans reduced into their antient slaâ—… But what if such a thing hath passed 〈◊〉 any one in the way of Commerce 〈◊〉 he charge the first owner with the priâ—… he paid for 't It seems he may so far 〈◊〉 the recovery of his desperate possessiâ—… was valuable to him who had lost the thing And if such cost may be requir'd why may not also the estimation of labour and hazard just
liberty in a moderate way without commotions of the people divers expedients were proposed But whilest this was under debate the Adversaries of mutual peace in some places invaded the Temples cast out their Dissenting brethren and moreover stood against that Right which the Magistrates in Holland as well as among their neighbours had exercised of old and did exercise to that time viz. Of having their voices in the election of Pastors There were some also who by their bitter Declamations and libells defaming the Rulers expos'd them to the hatred of the people and also used violence against them Maurice Prince of Aurange having long kept himself quiet in these Controversies by the secret arts of some men is exasperated more and more against Oldenbarneveld Assessor or Advocate of Holland a man of most flourishing Authority in the Assembly from whom long since at the making of the Truce he had dissented Withall he is possest with such things concerning the form of the Common wealth which he had not been very much conversant in hitherto being taken up with military affairs which were neither agreeable to the Laws nor Customs He then at length begins to disallow the Decrees made by the States of Holland for toleration of diversity of opinions to forsake the publick Churches and associate himself to the separating Congregations And further without the knowledge of the States of Holland he gave Command to the ordinary Soldiers not to stir in any businesses arising from those Controversies when as the States of Holland were of another Judgment viz. That obedience from the Soldier was due to their Decrees and safeguard to the Rulers of Towns and to publick places against all force and sedition whatsoever Upon this motive some Magistrates of Towns that had either no Garrisons at all or such as were for the said causes suspected by the Rulers by the Decree of the States of Holland encreased and ordered the Guards of their Town which right also they had heretofore often used without contradiction of the States confederate or the Governour who is the Commander of the ordinary Soldiers The same was done by the Trajectin Rulers and as well these as the other professed they would entertain these Soldiers at at their own charge over and above the common burdens of the War About the same time the two Benches of Judges to whom lyes an Appeal from the Towns begin to decree against the Decrees of the States of Holland in those writs whereby they call'd whom they pleas'd into question That the States of Holland pronounce to be unjustly done and the limits of their judiciary power to be exceeded as it was often before these times Some Nations are impelled by Prince Maurice and others to call a common Synod which we have said was stiled National in the name of the Assembly of the Confederates and to disband the military guards of the Towns Both the Hollandian and Trajectin Rulers oppose themselves against this attempt testifying that 't was not Lawful for the Consederates themselves interceding to constitute any thing in those matters by the vote of the major part They go on to call the Synod inviting also the Divines of other Nations but no other than they knew would joyn in those opinions to which the victory was destin'd The proposals of the Hollanders and others for a fair accommodation of the matter were rejected And in the mean time Prince Maurice with some Legates or Deputies of the Assembly of Confederates goes to Trajectum and against the will of the Rulers there disarms the Guard though the Deputies from Holland did what they could but all in vain to hinder it for they were commanded by their Superiours to affect the Trajectin Rulers to their utmost and if need were to admonish the ordinary Soldiers in their service that they should attempt nothing against the will of the said Rulers by force in the things pertaining to the internall government of that Nation and to the security thereof being such as every Nation by it self had reserved in their own power The King of France having receiv'd intelligence of the Differences of his friends dispatcheth Bossizius to them who in consequence to the things treated on already by Maurerius the same King's Leiger might pursue all means of reconciliation In hope whereof the Rulers of the Hollandian Towns dismissed their Guards This was no sooner done but eight men in the name of the Confederate States from whom they had no such Commission commanded Oldenbarnveld whom the States of Holland a little before had taken into their protection and Hogerbet and Me to be apprehended Against this the States of Holland and the Rulers of our Towns make their complaints When we were long detein'd in prison and oft examin'd Judges at last in the name of the Confederate States are given us Nor did it avail us to shew out of our Country Laws and Customs that the Confederate States have no Jurisdiction over them and that the Judges themselves for many reasons were suspected They go on in their Design and give us not leave neither to revise what things we written in our examination nor to lay open the justice of our cause nor to prove matters of fact pert eining to our defense nor to refute the witnesses nor to use Counsil Sentence of death is pronounc'd upon Oldenbarneveld of perpetual imprisonment upon Us of publication of Goods upon all Three A year after without hearing us followed an Interpretation of the sentence whereby we are pronounced Traitors I can truly profess in the sentence against Me many things were set down beside the truth many things expresly denyed by Me some things whereof I was wholly ignorant some things of which I was not so much as examiâ—… so far was I from being allowed a fair Tryal This and much more would be very evident if my Answers to every Interrogatory in my examination might come to light intire and sincere as I do earnestly intreat Before we were apprehended at Trajectum the Noble men and Rulers of the City whilst we were kept prisoners all over Holland the Decurions Consuls Oppidan Judges are removed before their time others being put in against the most sacred Laws established of old by the Oaths of the Earles of Holland and religiously observed many Ages Before the Synod which they call'd National and in the time of it many Pastors who taught praedestination conditionate whom they call'd Remonstrants are put out of office Others of them being summoned to the Synod are requir'd to plead their cause before their Adversaries who had before condemned them by their secession by their declamation in the Church by the Synod and by their writings neither yet is it granted them to defend their own and to oppugn the contrary opinion otherwise than it seemed good unto the Synod that is unto their Adversaries They are cast out of the Synod and condemned There follow cruel Decrees against the Congregations of the condemned opinion