very forceable as issuing from that which Nature her self doth if not command yet at least commend unto us as the more honest Of which kind there are many which afford abundance of matter for Laws both Divine and Humane And therefore the Hebrews do not precisely tye themselves to the degrees of the right line that are exprest in the Law but comprehend under them many degrees that are not there mentioned by a manifest parity of reason The names whereof with them are these The Mother of his Mother the Mother of his Mothers Father his Fathers Mother the Mother of his Fathers Father the Wife of his Fathers Father the Wife of his Mothers Father his Sons Wife the Wife of his Sons Son the Wife of his Daughters Son the Daughter of his Sons Daughter the Daughter of his Sons Son the Daughter of his Daughters Daughter the Daughter of his Daughters Son the Daughter of his Wives Sons Daughter the Daughter of his Wives Daughters Daughter the Mother of his Wives Fathers Mother the Mother of his Wives Mothers Father That is to say according to the Roman Dialect all Grand-mothers and Great Grand-mothers the Grand and Great Grand-mothers-in-law the Nephews and Neeces Daughters the Daughters of the Son-in-law the Nephews Wife and the Wives Mother and Grand-mothers because there is the same reason for the kindred on the Mothers side as for that on the Fathers And so under the first degree is comprehended the second and under the second the third Beyond which it is not likely that any Controversie should arise which might otherwise proceed in infinitum Now these Laws together with that which prohibits Brothers and Sisters to marry one another the Hebrews reckon among those which God gave unto Adam which were these The six Precepts given by God to Adam and Noah's Sons First That Enjoyning the worship of God Secondly That Commanding the ordaining of Magistrates and the administration of Justice Thirdly That Against the shedding of Innocent Blood Fourthly That Against Images or Idol-worship Fifthly That Against Rapine And Sixthly This against Incest Yet so that this last was not to be in force till the world was well replenished with mankind which in the beginning could not be avoided Neither do they think it to the purpose to say That Moses makes no relation of any such Laws given to Adam forbidding such Marriages For he thought it sufficient tacitely to couch it in the Law it self wherein he declares That the Nations were punished for these very sins Which they could not justly have been had there not been a Law given them that did forbid them There being many things recorded in the Law not in order of time but as occasion served to express them It will nothing avail then to say That these Incestuous Marriages were not sins because there was no Law against them before Moses for no more was there any Law then extant to punish Adultery with death Gen. 38.24 No Laws extant to punish Incest Rapes or Adultery yet we find these punished before Moses in the stories of Thaâ—ar Dinah and Reuben In the Jewish Law there is neither prius nor posterius yet we find Thamar sentenced to death for it by Judah So the punishment of the Sichemites by Simeon and Levi was just for ravishing their Sister Dinah though we read of no Law then published against it And the Incest of Reuben deserved his Fathers Curse though the Law forbidding it be not recorded For it was sufficiently condemned in this That the Nations were cast out by God for these things whereby it may probably be concluded That God had given such Laws to mankind before Moses his time though they are but obscurely glanced at by him And indeed the Jews have a notable wise saying which gives some light to those dark times namely that in their Law there is neither Prius nor Posterius First nor Last for many things are recited without order As touching the marriage of Brothers and Sisters the very words of Michael Ephesius are these For Brothers and Sisters to lye together was at the first indifferent but when there was a Law that forbad such Coition then whether that Law should be observed or not was not to be questioned And therefore Diodorus Siculus notes Lib. 1. that to abstain from such Commixtures was the common custom of all men the Egyptians only excepted though Dion Prusaeensis excepts also the Barbarians Seneca wrote thus We saith he joyn the Gods in marriage but with very little piety for we marry together Brothers and Sisters L. 8. de Leg. Plato calls such marriages prophane and abominable before God Whereby we may discern how mean an opinion other Nations as well as the Jews had of these Incestuous Marriages which they seldom mention without a Nefas to testifie their dislike of them All Brothers and Sisters as well on the Mothers side as on the Fathers side that is as well of the half as whole blood are comprised within this Law whether they are educated at home or abroad as is manifest by the Chaldee Paraphrast XIV Remote degrees seem not forbidden Now these marriages being expresly forbidden seem to justifie or at the least to tolerate those in more remote degrees For to marry an Aunt that is his Fathers Sister is expresly prohibited but yet to marry his Brothers Daughter which is equal in degree is not Such was Sarah to Abraham as Josephus thought †Hist l. 12. Jos Ant. Hist lib. 12. and lib. 76. Nay there are diverse Precedents for this among the Jews And after the Law given the same Josephus gives us examples in Herod who married his Brothers Daughter and gave his own Daughter to his Brother Pherotas There are certain marriages lately contracted saith Tacitus which to us are strange though not so with other Nations because forbidden by no Law Namely that a man should marry his Brothers Daughter this was held lawful among the Athenians as Isaeus and Plutarch in the Life of Lysias record whereof the Jews give this reason Because young men do daily frequent and are more usually brought up in their Grand-fathers and Grand-mothers houses amongst their Aunts than their Aunts are in their Brothers amongst their Nephews neither have they there so much Right Which if we do admit as it is indeed very agreeable to reason then we must acknowledge that the Law which Interdicts Marriages with Kindred in the right degree and with Sisters from whence sprung the whole race of mankind at first is now perpetual and obligeth all men being grounded upon natural honesty So that whatsoever is done against this Law may be made Null by reason of the Impediment that is lasting and permanent but what is done against other Laws is not so as being but cautionary against this which may be otherwise provided against Sure I am Marriage of two Sisters that by the Nineteenth Canon of those that are called the Apostles they that
principally rely For in Persia That Xerxes the Postnate Son was preferred before Artabazanes the Antenate was more by the power of Atossa his Mother than by true right as Herodotus observes For in the same Kingdom when the same Controversie afterwards arose between Artaxerxes Mnemon and Cyrus the Sons of Darius and Parisardis Artaxerxes the first-born though begotten by his Father in his private condition was notwithstanding saluted King Unless we take that as granted which Ammianus hath delivered unto us That the Succession to that Monarchy did much depend upon the suffrages of the people confined only within the Royal stock XXX Whether the Nephew by the elder Son be to be preferred before the younger Son It is no less disputed both by Wars and single Combats whether the elder brothers Son his Father being dead should succeed before the second Brother But this in a lineal descent will hardly admit of a dispute For herein are the dead reckoned as living in that they are able to transfer a Right to their Children therefore the Son of the deceased shall doubtless in such a Succession be preferred without any exception made to his age yea and where the Succession is cognatical the Daughter of the eldest Brother shall be preferred before the Uncle because in such Successions neither Sex nor Age should make us to decline the right line But in such Kingdoms as are hereditary yet divisible there shall each have a share unless it be where the Right of Representation is not as yet received as of old among many of the German Princes For it is but of late that Nephews have been admitted before their Uncles But where it once comes into debate surely the Nephews case is to be preferr'd as being most pleasing to humane Nature And where by the Civil Laws of any Nation representative Succession is once openly admitted there the Son of the deceased Brother shall succeed in the room of his Father though in that Law the word Proximus that is Next of kin be only mentioned The Reasons that are extracted out of the Roman Laws for this are but weak as is evident to such as inspect them But this is the best reason That in matters that are to be favourably understood the sense of words must be extended to all propriety not only vulgar but artificial So that under the name of Sons may be comprehended those of Adoption and under the word Dead may in included those that are dead in Law because the Laws do usually speak thus And thus he may deservedly be said to be Proximus whom the Laws present in the next degree But yet in Kingdoms that are hereditary and withal individual and where this Representative Succession is not excluded Neither is the Nephew always preferred to the Succession nor always the second Son but as amongst equals because by an effect of Right as to degrees that are adequate his case is best that is eldest Diod. l. 6. For as we have said before in hereditary Kingdoms Succession is guided by the priviledge of age Among the Corinthians the eldest Son of the deceased King did succeed in his Fathers Throne Procop. Vand. lib. 3. So among the Vandals it was provided That the next in Blood to the first King and the eldest should be declared Heir So that the second Son because of his maturity of years was preferred before the Son of the eldest Brother Vid. sup §. 24. So in Sicily Robert being the Second Son was advanced to the Throne before Martell his elder Brothers Son not properly for the reason fansied by Bartolus because Sicily was held in Fee as it were by a Superiour Lord but because that Kingdom was hereditary There is in Guntanus an ancient example of such a Succession in the Kingdom of the Francks but that proceeded rather from the peoples choice which at that time did not fully cease But since that Kingdom ceased to be Elective and that the line of Agnatical Succession was there established the matter admits of no dispute As anciently among the Spartans where as soon as the Kingdom came to the Heraclidae the same Agnatical Succession was introduced And therefore Areus the Son of the elder Brother Cleonymus was preferred to the Crown before his Uncle But even in a Lineal Cognatical Succession the Nephew hath been preferred As in England John the Nephew of King Edward by his eldest Son was preferred before Hemon and Thomas Which also is setled by Law in the Kingdom of Castile XXXI Whether the younger Brother living be to be preferred before the Kings elder Brothers Son By the same distinction we may resolve another doubt between the surviving Brother to the last King and the Son of the elder Brother But that we must know that in many places where among children the living may succeed in the room of the dead in the right line they are not permitted so to do in the transverse But where the Right is not clear and undoubted it is most rational to incline to that part which favours the Child in the Right of his Father because we are thereunto guided by natural equity namely in that Estate which descended from his Ancestors Neither is it any Impediment that Justinian calls the Right of Brothers Children Depredatory For this he doth in relation to the ancient Roman Laws but not to natural equity Let us now proceed to examine the other cases proposed by Emanuel Costa XXXII Whether the Son of the Brother be to be preferred before the Kings Uncle The Son of the deceased Brother or even his Daughter he saith is to be preferred before the Kings Uncle This is true not in a Lineal Succession only but even in an hereditary in such Kingdoms where Representative Succession takes place but not in such Kingdoms which in express terms do bind us up to the degrees that are Natural For there they are to be preferred which have the precedency of Sex and Age. XXXIII The Nephew by the Son preferred before the Daughter He further adds That the Nephew from the Son is to be preferr'd before the Daughter It is true By reason of his Sex yet with this exception Unless it be in such a Nation which even amongst Children respects only the Degree XXXIV The younger Nephew from the Son before the elder from the Daughter He farther adds That the younger Nephew from the Son is to be preferr'd before the elder from the Daughter which is likewise true where a Lineal Cognatical Succession is in use but not in an hereditary without the warrant of some Special Law Neither do we approve of the Reason alledged namely because the Father of the one was to be preferred before the Mother of the other For that was by reason of his dignity which was meerly personal and descended no farther And yet on the contrary we read that Ferdinando the Son of Berengaria the younger Sister of King Henry deceased was preferred to the Kingdom of Castile
before Blanch the elder Sister of the same King But this as Mariana notes was done in hatred to the house of France into which Blanch married â—XXV The Neece from the elder Son preferred before the younger Son That which he adds as seeming to him most probable namely That the Neece from the elder Son excludes the younger Son cannot hold in hereditary Kingdoms although Representative Succession be there in force For that gives only a capacity to succeed But of those that are capable regard is to be had to the priviledge of the Sex XXXVI The Sisters Son preferred before the Brothers Daughter And therefore in the Kingdom of Arragon the Sisters Son was preferr'd before the Brothers Daughter And as Mariana observes It is credible that in that Kingdom in times long since past The Kings Brother and not his Daughter had the Right of Succession But afterwards they were so well pleased with a Lineal Succession that they preferred the Sisters Son before those that in a more remote degree descended from the Brother And in another place speaking of Alphonsus he saith That unto the Inheritance of the Kingdom of Arragon after his Son Ferdinando he appointed his Nephews by his Sons and for want of such then the Nephews by his own Daughter were to be preferred before the Daughters of the said Ferdinando Whereunto he adds Sic saepe ad Arbitrium Regum jura regnandi commutantur They are Titles to Kingdoms oft-times fann'd about by the breath of Kings XXXVII Whether the Daughter of the elder Brother be to be preferred before the younger Brother After the same manner In Kingdoms that are hereditary the Daughter of the eldest Son shall give place to the Kings younger Brother CHAP. VIII Of Dominion vulgarly said to be acquired by the Law of Nations I. Many things are attributed to the Law of Nations which to speak properly are not thereby due II. Fish and Deer in Ponds and Parks are by the Law of Nature held in Propriety contrary to what the Roman Laws deliver unto us III. That Wild Beasts straying out of Inclosures cease not to be the first owners if they may be known IV. Whether the possession of them may be gained by Instruments as by Nets and how V. That such Wild Beasts should be the Kings is not contrary to the Law of Nations VI. How the possession of such things as have no owner may be gained VII Mony found whose it is naturally and of the diversity of Laws about this VIII That those things which by the Roman Laws are delivered unto us concerning Islands and Increments are neither Natural nor from the Law of Nations IX That Naturally Islands in Rivers and the Channel being dried up are theirs whose the River or that part of the River was that is the peoples X. That Naturally the Propriety of a ground is not lost by an Inundation XI That Increments if in doubt are the peoples XII But they seem to be granted unto those whose grounds have no other bounds but the River XIII The same may be presumed concerning whatsoever the stream leaves dry XIV What is to be accounted an Increment and what an Island XV. When the Increments belong unto Vassals XVI The Arguments whereby the Romans would prove their Law to be as it were Natural answered XVII That a way is naturally an Impediment to Increments XVIII That it is not Natural That the Child should follow the condition of the Mother only XIX That Naturally a thing may be made Common as well by giving a Form to another mans matter as by confusion XX. Yea though that matter be ill wrought XXI It is not Natural that the lesser part should yield to the greater by reason of its prevalence where also are observed other Errors of the Roman Lawyers XXII Naturally by planting sowing or building upon anothers ground there ariseth a community to both in the Fruits perceived XXIII He that sows anothers ground by mistake may require his Charges but not the Fruits XXIV Yea though he doth it knowingly XXV That Naturally Tradition is not necessary to transfer Dominion XXVI The use of what hath hitherto been said I. That many things are said to belong to the Law of Nature that properly do not NOw our Method leads us to treat of that Dominion which is vulgarly said to be acquired by the Law of Nations which being distinct from that gained by the Law of Nature we have therefore termed the voluntary Law of Nations Such is that Dominion which is got by the Right of War But of this we shall discourse better hereafter where the effects of War shall be explained The Roman Lawyers where they treat of the gaining of the Dominion of things do reckon up many ways whereby it may be acquired which they seem to justifie by the Law of Nations But to him that diligently examines them there is hardly any except that gained by War that will appear to be gained by that Law of Nations whereof we now speak But are either such as are to be referred to the Law of Nature not that which is meerly so yet to that which follows close upon it Dominion being first introduced and so antecedes all Civil Law or they are such as may be referred to the very Civil Law not that of the sole people of Rome but of many other Nations Which I rather believe because this Civil Law or Custome came originally from the Greeks whose Institutes as Dionysius Halicarnassensis observes with some others all Italy and some other adjoyning Nations followed But this is not the Law of Nations properly so called For it serves not to conglutinate all Nations mutually among themselves but rather to preserve peace and tranquillity between the Subjects of every Nation And was therefore alterable by any one people without consulting the rest so that it may also come to pass That in other places and in other ages a far different common custom and so another Law of Nations improperly so called may be introduced Which we have found really done as soon as the German Nation had invaded all Europe For as of old the Graecian Laws so then the Germans were almost every where received and do as yet flourish The first way of gaining Dominion by the Law of Nations as the Romans call it is by the primary seizure or occupancy of such things as have no owner which without doubt is natural in that sense which I have declared that is Dominion being first introduced and so long as no Law did otherwise determine For Dominion may also be gained by the Civil Law II. As Fish in Ponds Deer in Parks And hitherto in the first place we may refer the taking of Wild Beasts Birds and Fish But how all these may be said to belong to none will afford matter of debate Nerva the Son was of opinion That Fish if in a Pond were possest but not in a great Lake And that Wild Beasts if in a Park or
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 Vopisâ—us 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 mâ—rk whereby this distinction may be seen namely in the Tutâ—lage or Protection of Kiâ—â—â—oms when Kings and Princes are hindered or disabled either by some disease or thâ—â—â—gh old age or the like from performing their duty For where the Kingdom is not Pâ—trimonial 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 Inâ—ians were as Diodorus and Strabo testifie or whether they are not it makes no diffeâ—ence 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 hâ—re 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 sâ—id 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 wâ—nt of a Right or Faculty to do it And yet will it not necessarily follow that he thâ—â—â—â—us 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 carcâ—sses 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
notwithstanding the children do naturally owe reverence could not by her descent make the Marriage void no nor the father of a Free-man And if the Father himself be under the power of his own Father then the consents of both Father and Grand-father are required to the Sons Marriage But to the Marriage of a Daughter the Grand-fathers consent alone sufficeth Which differences being altogether unknown to the Law of Nature doth evidently prove that they arise not from the Natural but from the Civil Laws We find in Sacred story That many holy men and much more Virgins not to chuse Husbands for themselves 1 Cor. 7.36 Lib. 1. de Abrah c. ult women who by reason of their modesty and bashfulness ought especially in this case to be governed by others have in contracting Marriages submitted themselves to the authority of their Parents Non est virginalis pudoris eligere maritum It becomes not a Virgins modesty saith Ambrose †Grat. c. 32. q. 2. to chuse an Husband for her self And yet was not Esau's Marriage declared null nor his Children held as Illegitimate because in his Marriage he had not the consent of his Parent It is true That as to Daughters the chief power of disposing them is in the Father So in Euripides Hermione My Nuptial I to Parents care alone Commit for free choice therein have I none But as to Sons If we respect strict and Natural Right that of Quintilian will be found true That if it be lawful for a Son at any time to do things otherwise unreprovable without yea against his Fathers will surely that liberty is never more justifiable than in Marriage For as Cassiodore truly observes Durum est libertatem liberam non habere in Matrimonio Lib. 7. c. 4. unde liberi procreantur To be debarr'd of our free choice in Matrimony from whence our Children should be born is hard Ter. Andr. Act. 1. sc 5. nothing is more plain than that a Son in his Marriage should please himself XI It is a void Marriage that is contracted with anothers Wife or Husband That Marriage that is contracted with another mans Wife is doubtless null by the Law of Nature unless her former Husband have dismist her For so long doth his power last over her which by the Evangelical Law is not dissolved but by death The latter Marriage therefore is null for want of a moral power in the woman to dispose of her self which being lost by her former Marriage doth vitiate all those subsequent effects that attend it because every Act is but the invading of anothers Right So likewise on the other side by the same Law a Marriage contracted with the Husband of another Woman is alike void by reason of that power that Christ gives a chaste Wife over the body of her Husband XII Of Marriages between kindred Concerning Marriages between such as are nearly allied or of the same blood many difficult questions arise which are often with much zeal and animosity agitated on both sides Because he that shall undertake to assign certain and natural reasons why these Marriages that are by Law or Custome thus forbidden are unlawful should experimentally find how hard nay how impossible it is to effect it That alledged by Plutarch in his Roman Questions by St. Augustine in his Book De Civitate Dei by Philo in his Special Laws and by St. Chrysostome on 1 Cor. 13.13 as the contracting of new Friends and the strengthning our selves with new Alliances savours more of Policy than true Piety Nor are they of that force and energy as to conclude the contrary Acts to be either unlawful or void Whereunto may be added That some cases there may be wherein such prohibited Marriages may be more profitable and politick than others The Marriage of kindred sometimes profitable and politick as may be collected not only from that which God himself in his Law given to the Jews excepts of raising Seed to a deceased Brother having no issue But from that also of a Virgin left by her Father as sole heir of all his estate who by the Grecian and Hebrew Laws was to be Married to the next of kin to preserve the name and Estate in their own Tribe and Family and from many such like cases which do or may occur But yet from this general rule Incestuous Marriages forbid by the Law of Nature and why we must except the Marriages of Parents with their Children in what degree soever the reason whereof is sufficiently evident For neither can the Husband who by the Law of Matrimony is the head of the Wife pay that respect and reverence that Nature binds him to give to his Mother nor the Daughter to her Father For though she be subordinate to her Husband by Matrimonial Right yet doth her Marriage allow her so great a Familiarity with her Husband as is altogether inconsistent with the duty of a Child Paulus the Lawyer was in the right when having saâ—d before That in contracting Marriages the Law of Nature and Modesty were chiefly to be regarded he added That it was against modesty for a man to take his own Daughter to be his Wife And Philo in his Special Laws condemns it as an execrable wickedness to pollute the bed of his deceased Father which as a thing Sacred ought not to be toucht and without regard to either the age or the reverence of a Mothers name to make himself both Son and Husband to the same Woman and to make her both Mother and Wife to the same Man Wherefore such Marriages are doubtless not illegal only but void by reason of something that is vicious which perpetually cleaves to the effects of it Neither is that Argument of Diogenes and Chrisippus which is drawn from the practice of Cocks and such like dumb creatures sufficient to prove that such commixtures are not repugnant to the Law of Nature That is unlawful which is repugnant to Humane Nature Lib. 2. Contr. Jâ—â—it For as I have already said it is enough to conclude any thing unlawful That it is repugnant though but to humane nature This is that Incest which the Lawyers Paulus and Papinian wrote to be by the Law of Nations committed between the degrees ascendent and descendent And this is that Law of Nature which as Xenophon notes is no less a Law because it was contemned by the Persians Medes Indians and Aethiopians for which they were punished with perpetual Wars Parricides Fratricides as Philo first and after him St. Hierome observed For as Michael Ephesius well interprets it That is Natural which is of common use amongst such Nations as are uncorrupted And that live most agreeable unto Nature And therefore Hippodamus the Pythagorean calls these incestuous commixtures inordinate and unnatural lusts unbridled passions and abominable pleasures Such were those of the Parthians whereof Lucan thus complains Epulis vesana meroque Regia non ullos exceptos legibus horret Concubitus With
the ancient Estate shall return from whence it descended and to their Children X. But that which was lately gained to the nearest in blood XI The Laws touching Succession are diverse XII How Succession takes place in Patrimonial Kingdoms XIII In Kingdoms Indivisible the first-born to be preferred XIV That Kingdom which by the peoples consent is hereditary if in doubt is presumed indivisible XV. The Succession not to last beyond the line of the first King XVI Natural Issue not at all concerned in it XVII The Male Issue preferr'd before the Female within the same degree XVIII Of the Males the eldest is to be preferred XIX Whether such a Kingdom be part of an Inheritance XX. It may be presumed that the Right of Succession to a Kingdom did agree with that of Succession to other things at that time when that Kingdom began whether Absolute XXI Or held of another in Fee XXII Of Lineal Suceession to the next in blood whether Males or Females and how the Right is thereby transmitted XXIII Of Lineal Succession to the Male Issue only called Agnatical Succession XXIV Of that Succession which always respects the nearest to the first King only XXV Whether a Son may be exheredated so as to bar his Succession to the Crown XXVI Whether a King may for himself and his Children renounce his Kingdom XXVII Concerning the Right of Succession the Judgement to speak properly is neither in the King nor People XXVIII A Son born before his Father was King shall be preferred before him that was postnate XXIX Vnless it be otherwise provided by some other Law XXX Whether the elder Brother deceased his Son be to be preferred before the younger Brother explained by distinction XXXI Also whether the younger Brother living be to be preferred before the Kings elder Brothers Son XXXII Whether the Kings Brothers Son be to be preferred before the Kings Vncle XXXIII Whether the Kings Son be to be preferred before the Kings Daughter XXXIV Whether the younger Son of a Kings Son be to be preferred before the eldest Son of a Daughter XXXV Whether the Daughter of the eldest Son be to be preferred before the younger Son XXXVI Whether the Son of a Sister be to be preferred before the Daughter of a Brother XXXVII Whether the Daughter of an elder Brother be to be preferred before the younger Brother I. Some of the Civil Laws unjust HAving thus shewed what Right may be derived from another by his Act now we are to treat of the Right that is derived from another by Law And this is either by the Law of Nature or by the voluntary Law of Nations or from the Civil Law It were endless to treat here of the Civil Law neither are the main Controversies concerning War thereby determined and therefore we shall purposely omit it Yet is it worth our Observation to know that some of the Civil Laws are apparently unjust as that which adjudgeth goods Shipwrackt unto the Kings Coffers For to take away anothers Right and Propriety without any preceeding cause that is probable is a manifest injury Thus pleads Helen in Euripides Helen Wreckt and a Stranger came I in Such to despoil is horrid sin For what Right saith Constantine can the misfortunes of another create to a King that he should be enriched by a calamity so much to be pitied Lib. 1. C. de Naâ—f l. 12. And therefore Dion Prusaeensis in an Oration of his concerning Shipwracks crys out Absit O Jupiter ut lucrum captemus tale ex hominum infortunio Far be it O Jupiter from me to take such advantages by other mens misfortunes And yet such a Right do the Laws of Nations very unjustly give as amongst the English the Sicilians And such an ancient Law Sopater mentions to be in force in Greece Christian King of Denmark upon the abrogating of this Law complained That he lost an hundred thousand Crowns yearly Nicetas speaking of this Law calls it a Custome so barbarous as is not to be named What then was Bodines meaning to defend this Law He namely who reprehended Papinian for chusing rather to dye than to act against his own Conscience II. A man may have a Right to that which he takes from another and when Propriety or Dominion being introduced it follows by the Law of Nature That things are alienable two ways First By commutation which consists in the making up of that Right which I want whereby the ballance of Justice may be made even or Secondly By Succession Now Alienation by way of Commutation or Expletion is when for something that is or ought to be mine which I cannot receive in kind I take from him that detains it or somewhat in lieu thereof that is some other thing of equal value Thus Irenaeus excuseth the Hebrews for robbing the Aegyptians of their goods See Book 3. ch 7. §. 6. Which saith he they might take and keep in compensation of their labour Now that Dominion may be thus transferred is easily proved from the end which in moral things is the best proof For how otherwise can I be said to receive my full Right unless I become the right owner of it Seeing that it is not the bare detention but the full power to use and dispose of it at my pleasure that makes the Scales of Justice even An ancient example of this we have in Diodorus where Hesionaeus in lieu of those things which being promised to his Daughter by Ixion but not given took away his Horses For Expletive Justice when it cannot recover what is the same endeavours to get the value of it which in a moral estimation is the same By the Civil Law no man we know can do himself Right Nay if any man shall with his own hands take away from another though but what is his due it shall be imputed unto him as Rapine and in some Countreys he shall lose his debt And although the Civil Law did not diectly forbid this yet from the very institution of publick Tribunals it may easily be concluded to be unlawful But where there are not publick Courts to appeal unto as on the Seas and in Desarts there the Law of Nature must be our guide So it should sometimes when the Laws cease but for the present that is if the debt can never be got otherwise As if the Debtor be ready to fly the Countrey before the Courts can be open in which case the Creditor may lawfully have recourse to the Law of Nature Yet so that the Judgement of the Court must afterwards be expected before the Right of Propriety can be assured as in the case of Reprizals as shall be said hereafter But yet if the Right be certain and it be also morally as certain That a man cannot by a Judge receive satisfaction for want of due proof the best opinion is That the Law concerning Judgements ceaseth and that a man may have recourse to the ancient Law of Nations III. The Estate of
they 're left forlorn And yet may those also be adopted Sons if the Laws forbid not as it was anciently permitted among the Romans by the Laws of Anastasius But afterwards in favour to lawful Marriage there was a more difficult way found to make Bastards equal to such as were Legitimate namely by the free offer of the Court when they say cause or by the subsequent Marriage of the Mother of the Child Thus did old Jacob adopt his Natural Son s making them equal to his Legitimate and giving them equal shares in his Inheritance But the contrary may sometimes happen not only by the prohibition of the Law but even by agreement when it is agreed on by both parties before That they that are to be born by that Wedlock shall receive only Aliment but no part of the Ancient Inheritance And such a Marriage the Hebrews call Concubinary although made with a Free-woman Such was that of Abraham with Keturah called therefore his Concubine Gen. 25.6 whose Children together with Ishmael the Son of Agar his Bond-maid are said to have received gifts that is Legacies but no part of the Ancient Inheritance So it was anciently among the Mexicans who gave all to the eldest son but nothing to the rest but sustenance only And not much better are second Marriages in Brabant where the Children by the second Venter have no Propriety in the Estate which the Father held at the death of his former Wife The like Law we find among the ancient Burgundians IX If a man dye Childless and Intestate to whom shall the Estate descend The Fathers Estate to his Relations the Mothers to hers The ancient Estate to be continued in the same Tribe If a man dye Childless and withal Intestate on whom the Succession should descend is not easily to be determined There being no one thing wherein the Laws do more differ All which differences may notwithstanding be reduced under two Heads whereof the one hath respect to the nearest of kin the other to the several Spring-heads from whence it descended That which came by the Father to his Relations and that which came by the Mother to hers But here we must distinguish between the ancient Inheritance and that lately purchased That of Plato must be understood of the former Ego Legum conditor c. I being a Law giver saith he do ordain That neither your Persons nor Patrimonial Estates are in your own power fully but your stock and lineage have a Right thereunto as well they that now are as they that are to come Whereby it seems that Plato would have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Ancient Inheritance preserved intire for that Tribe or Kindred by which it came Which I would not have so to be understood as though it were not naturally lawful to dispose of any goods that descend unto us from either Parents or Ancestors otherwise For sometimes to relieve the wants of a Friend who hath well deserved of us is not only commendable but necessary But that in a case ambiguous it may appear what we ought to believe the will of the Intestate was For we take it as granted That he that dies hath at his death a full Right to dispose of his Estate But since it is impossible for him to retain this Right being dead and that it may be presumed That he would not altogether lose that Right whereby he might gratifie his Friends It concerns us to enquire in what order this benefit should naturally descend Wherein that of Aristotle is most rational Potius est gratiam referri ei qui benefecit quam amico conferre beneficium That it is better to return thanks to our Benefactor than to oblige new Friends For as Cicero saith truly There is no duty so necessary as that of Gratitude Our Benefactors are first to be gratified and then our Friends obliged For since Liberality hath but two Branches whereof one is to do good the other to repay good the former we may do if we will but the latter we must do if we would be honest and can do it without injuring any So St. Ambrose It becomes every man to have a greater respect unto him from whom we have received a Courtesie than unto others And presently after What can be more against our duty than not to return what we have received Now our Gratitude is exprest either to the living or 〈◊〉 the dead as Lisias observes in his Funeral Oration It is shewed in doing good to their Children being naturally the surviving parts of them and unto whom their parents if living would have been most beneficent In me conferes quicquid in liberos meos contuleris saith the Fisher-man in Procopius Procop. Pers 1. who was about to adventure his life against a Dog-fish to gain a very great Pearl for the Emperour Cosroe That is the best Gratitude that is shewed to the dead For what O Emperour thou shalt confer on my Children if I perish thou bestowest upon me And according to this rule did they walk who framed the Justinian Laws in that question concerning whole and half Brothers and in that concerning Cousins in Blood and in some others Brothers saith Aristotle do love each other being born of the same Parents Ortus communis ipsos quasi eosdem facit One common blood whereof they are made makes them almost one and the same Whence frater is quasi fere alter A Brother is but almost another or as one cast in the same mould For as the highest bond of Love is deservedly that which Children owe their Parents Val. Max. lib. 5. c. 5. from whom they receive the most and the greatest benefits as their lives and livelihoods So the next is that of Brethren to each other as having received the same benefits together from the same Parents And therefore for Brethren dying Childless and Intestate to succeed one another is according to Justin the Common Right of Nations But in case he from whom the goods last descended be not to be found nor any of his Children it remains that the thanks be paid to them to whom though not so much yet next after him they are notwithstanding due namely to the Parents of the next degree above him and to his Children Especially seeing by this means it may be continued between the Kinsmen both of him whose inheritance it was and of him from whom the said goods first descended So the same Aristotle Cousin Germans and the rest of our Kinsfolks are linked together by their Parents as being born of one common stock yet so as some are more nearly allyed than others according to their respective birth Thus by the Law of Moses the Unkle succeeded after the Brothers as being nearer unto the first Owner than the Brothers Children Numb 27.10 11. X. An estate lately gained to the next of kin But as to that part of the estate that is but lately acquired because there lyes no obligation of thankfulness
to our Ancestors for them it remains that the succession should pass to him that was dearest to the person deceased which is presumed to be his nearest Kinsman who is as it were his own Flesh Prov. 11.17 or his Brother Deut. 15.11 For our love to our kindred should be proportionable to the nearness they are unto us in blood so that after our Parents they are best to be provided for who are by nature in the nearest relation unto them And therefore among the Grecians as Isaeus tells us The Goods of the deceased did alwayes descend unto the next of kin Whereunto he adds What can be more just than that the estate that was a kinsmans should descend unto a kinsman How well would this conserve Humane Society saith Cicero and promote the honour of private Families if the nearer any man were allyed unto us so much the more benign and bountiful we would be unto him Next unto our children the same Cicero placeth our loving kindred who as they are nearest so ought they to be dearest unto us and to provide for these especially is a debt that we owe them not by Commutative Justice but by Distributive as being most worthy for the honour that is due unto our own blood And therefore the same Cicero speaking elsewhere of that natural affection which every man bears to his own Relations tells us That from thence ariseth the Testaments and Legacies of dying men It being much more equitable to leave our estates to our own kindred than unto strangers This is the Charity that is most acceptable to God Esay 58.7 De Off. l. 1. c. 30. as Esay tells us To feed the hungry to clothe the naked and that we hide not our selves from our own flesh And St. Ambrose highly commends that liberality that is shewn to our brethren and kinsfolks as being next in blood to us Now that succession that thus descends from a person dying Intestate is but as it were a silent Testament which the Laws of Nature and Nations make Authentick by guessing at the will of the deceased Thus Quintilian also Next unto them who claim a Right by the Testators Testament are his kindred in case he dye Intestate and Childless not because the Goods of the deceased are in Justice due unto them but because being deserted and as it were left without any certain Owner none can pretend so much right to them as they being the next of kin And what hath been said of Goods newly purchased by the person dying Intestate That they naturally descend to his nearest Relation may as truly be said of such Goods as descend unto him from his Father or Grand-father in case neither they from whom they descended nor any of their children do survive to whom in point of Gratitude they should return XI Diversity of Laws as touching succession Now though what we have here said be most agreeable to Natural Conjectures yet are they not by the Law of Nature necessary wherefore from divers causes moving mens wills successions do usually vary according to the diversity of Agreements Laws or Customs rationally grounded some whereof will admit of substitution in some degrees others not The Ancient Germans were altogether ignorant of that kind of succession which we call Representative even among their children as that the Eldest Brothers Son should succeed in the room of his deceased Father which Right first took place in France by an Edict of Childebert and was first introduced into those parts beyond the Rhine by Otho So the Ancient Scottish Right of succession went according to the sole proximity in blood Pontanus 7. Danicor and not by substitution it being so decreed by the King of England who was chosen as Arbiter to decide that difference In some places regard is had to the first Purchaser in others this is neglected There are some Countreys where the first-born carries away the greatest part of the estate as among the Hebrews but in some others all the Children share alike In some the kindred by the Fathers side only succeed in others those by the Mothers have an equal portion In some regard is had to the Sex in others none at all In some the kinsfolks in the next degree only are admitted in others they admit those in degrees more remote To trace all would be tedious neither is it my purpose so to do But this we must grant That where the deceased hath declared nothing of his Will it must be presumed that the Estate should pass as the Law or Custome of the place doth order it but not so much by the power of the Empire as by the force of this Conjecture which also takes place against those in whom the Supream Power resides For it is very probable that what they by their Laws command or by their Customs approve of in their Subjects the same in their own affairs they hold to be most Equitable so as no great damage ariseth to them by it XII How succession to Kingdoms patrimonial ought to be guided Daughters capable to succeed in Egypt and Britain As concerning the Succession to Kingdoms we must distinguish between those that are Patrimonial and in a full and absolute manner possest and those that are held in such a manner as pleaseth the People The former sort may be divided even between the Sons and Daughters as in the Kingdoms of Egypt as Lucan testifies Nullo discrimine Sexus Reginam scit ferre Pharos In Aegypts Throne Difference of Sexes there is none The like doth Tacitus record of the Brittish Empire In Asia after Semiramis Neque enim Sexum in Imperiis discernunt Tac. many Women were permitted to Reign saith Arrianus as Nitocris in Babylon Artimissa in Halicarnassus and Tomyris amongst the Scythians yea and such Kingdoms may be divided as in Asia all the Brothers Reign together though one only hath a principal Right to the Crown which Custome the Empress Irene would without any precedent have introduced into the Constantinopolitan Empire in the Reign of Andronicus Palaeologus as Gregoras notes That saith he which is most strange and to be admired was That she was not willing Lib. 7. that any one should obtain the whole according to the Ancient Custome of that Empire but according to the Examples of the Western Princes the Cities and Regions should be divided amongst her Sons that so each of them might hold his Kingdom as his Patrimony just as the estates of private men are divided among their children so that each part of the Empire should descend perpetually to each of her Sons and to their Heirs after them For being her self of a Western Extraction she indeavoured to introduce their Custom without example Neither are adopted Sons less capable of Succession by guessing as the Will of the Intestate than true Sons Thus did Hyllus the Son of Hercules succeed to Aepalius King of the Locrians by Adoption Strab. l. 9. as also did Molossus the Bastard in the
Cepheus had no Male Children Lib. 4. And Diodorus assigns the same reason why Teuthras left the Kingdom of Misia unto his Daughter Argiope Because as to Male Issue he was childless And Justin tells us That the Empire of the Medes did of right belong to the Daughter of Astyages because Astyages had no Son So doth Cyaxares in Xenophon declare his Daughter Heiress to the Median Empire For saith he I have no Son that is legitimate So Virgil concerning King Latinus He had no Son no Issue Male was left In prime of youth Both being of Life bereft And by one Daughter this vast State possest Homer discoursing of the Kingdom of Crete Iliad n. doth very wisely assign the reason why in successions the Elder is commonly preferred before the younger namely first for their priority of Age Lib. 2. and secondly for their greater knowledge and experience Zozimus also mentions a Persian Law which gave their Empire to their Kings eldest Son Thus did Periander succeed his Father in the Kingdom of Corinth by order of Birth as Damascene testifies Whence we are given to understand that although the Children of deceased Parents in some degrees from them may succeed in the room of their Parents yet is it to be understood with this Proviso That they are as capable as the rest which Bastards are not Provided also That of such as are capable regard be had first to their Sex and then to their Age for the qualities of Sex and Age as they are in this case by the people considered are so adherent to their persons that they cannot be pluckt asunder XIX Whether such a Kingdom be part of an Inheritance But here it may be demanded Whether a Kingdom thus conveyed be a part of an Inheritance whereunto the most probable Answer is That it is a kind of an Inheritance yet separate from that of other Goods And therefore Innocent the Third thought that the succession to such a Kingdom might be lost if he who was to succeed did not fulfill the last Will of the deceased Such peculiar and separate Inheritances we may see in some Fee-Farms and Copyholds Fee-Farms and Copy-holds why first given which were originally given for the meliorating of Lands barren and desart under some small Rent which were not to return back to the Donor The like may be seen in the Rights of Patronages and Royalties Whence it follows That a Kingdom may belong to him who if he will may be heir to the Goods yet so that if he will he may also enjoy the Kingdom and not inherit the Goods nor subject himself to the charge that attends them Now the reason hereof is because it is probable that the Kingdom by the peoples consent should be setled on the King Why the people would have their Kingdoms hereditary in the best manner of Right that could be Neither did they much regard whether he would accept of the Inheritance or not since it was not for this that they made choice of an hereditary order but that the Title to the Kingdom might be clear and that their Kings being extracted from a Royal Stem might attract the more reverence from the people who were apt from their High Birth and Princely Education to conceive the greater hopes of their Heroick Vertues and that the Prince in possession might receive the greater encouragement to be careful of the Kingdom and with the greater Courage and Magnanimity to defend it as knowing that he was to leave it to such as were either in gratitude or love most endeared unto him XX. The succession to Kingdoms is the same as that to other estates Whether absolute But where the custome of succession to Lands absolutely free and to Lands held from another is diverse if the Kingdom be not held of another or was not at first certainly held although it do appear that homage hath been since done for it yet shall the succession by the Law go in such manner as the succession of Free-hold Lands went at such time when that Kingdom was at the first Instituted XXI Or held from another But in such Kingdoms as were at first given to be held from another as being the chief Lord of it the manner of succession shall by the Law be such as the succession to Lands held in Fee-Farm within that Kingdom was at such time as the Investiture into that Kingdom was at first given and that not alwayes according to that Law of the Lumbards which we have prescribed For the Goths Vandals Almains French Burgundians English Saxons and all the German Nations which have by War possest themselves of the best parts of the Roman Empire have every one of them their own Laws and Customs concerning things held in Fee as well as the Lumbards XXII Of a Lineal Cognatical succession and what manner of transmission of right is therein But there is another kind of succession much used in some Kingdoms not hereditary but as they call it lineal wherein is observed not that Right which is called Representative but a Right to transmit the future succession as though it were already conveyed the Law namely out of an hope which naturally and of it self worketh nothing raising a certain true Right namely such a Right as ariseth from a Conditional Stipulation which at present gives only an hope that it will be due which very hope they transmit unto the Children springing from the Loins of the first King but in an order that is certain so that in the first place the Children of the last possessor of the first degree as well of those that live as of those that are dead are to be admitted with regard had as well among the living as the dead to the Sex first and then to the Age. But if this Right descend on the deceased then this Right shall pass to such as are descended from them amongst equals alwayes observing the like prerogative of Sex and then of Age and the transmitting of the Right of the dead upon the living and of the living upon the dead And in case their children fail it descends unto those who are Cognatical succession or if they lived should have been by the like transmission next unto him the same distinction of Sex and Age among equalls being alwayes observed in the first Line so that no transition by reason of Sex or Age should be made from one Line to another so long as any remain of the first Line of what Sex or Age soever And consequently the Daughter of a Son shall be preferred before the Son of a Daughter and the Daughter of a Brother See Argentraeus in his Brittish History l. 6. c. 4. before the Son of a Sister so the Son of an elder Brother before the younger Brother This is the order of succession in the Kingdom of Castile and of Norway as Pontanus testifies in his Danish History and such is the succession in many Dutchies Counties and
But here it is also sometimes questioned Whether Promises are to be understood with this tacite condition That things remain so as they were when the Promise was made Which we deny unless it do manifestly appear That that present condition of things was included in that only Reason which we have said And we read of nothing more frequently in Histories than of Ambassadours who understanding so great an alteration made in the State as would render the whole matter and cause of the Embassie frustrate have returned home without attempting any thing XXVI Or from the repugnancy of some emergent case with the Will Which is taken either from something that is unlawful Courts of Equity necessary The Repugnancy of some emergent case with the Will is of two sorts For the Will is guessed at either by Natural Reason or by some other sign of the Will The proper office to judge at the Will by Right Reason Aristotle assigns to Prudence in the understanding and in the Will to Equity which he very fitly defines to be the Correction or Moderation of that wherein the Law by Reason of its generality is deficient Which ought to take place as well in Testaments as in Contracts respectively For seeing that all emergent cases could neither be foreseen by the Law-giver nor excepted in the Law therefore there is a necessity that some liberty should be granted for the exempting of such cases as he that made the Law would have exempted had he been present or could he have foreseen it And yet is not this rashly to be admitted for that were to make himself Lord over another mans act but then only when we have sufficient signs to justifie our Conjectures Whereof none can be more just than this when they would binds us to things repugnant to the Laws either of God or Nature For such Laws having no power to oblige are necessarily to be exempted Quaedam etiamsi nulla significatione Legis comprehensa sint natura tamen excipiuntur There are some things saith Quintilian that naturally are exempted although they are not comprehended by any signification of the Law As he that hath promised to restore a Sword to him who entrusted him with it if the man to whom the Promise was made be mad he ought not to deliver it lest he thereby create danger to himself or to some others that are innocent So neither are we to restore a thing to him that deposited it with us if the right owner demand it This I approve of saith Triphonius to be Justice that so gives to every man his own that he detracts not from the juster claim of another The Reason whereof is because such is the force of Propriety being once introduced that not to return a thing to the right owner when known is altogether unjust XXVII Or when some too great a charge ariseth to the Promiser in comparison of that act The Second sign shall be this When strictly to follow the words of the Promise or Contract is not of it self and altogether unlawful But when it binds to such things as to a prudent and well-balanced Judgement are too grievous and intollerable And that whether we respect humanity it self absolutely or by comparing the person promising and the thing promised with the end for which such a Promise or Contract was made So he that lends a thing for such a time may require it before that time if he stand in great want of it Because it is presumed that no man would willingly do his Friend a courtesie in that wherein he should do himself a manifest injury So he that shall promise succours to his Allies shall be excused in case he be engaged in War at home so far forth as he shall stand in need of those Forces In like manner he that promiseth immunity from Tributes and Taxes means only from ordinary and annual Taxes not from those that may be imposed in times of greatest danger for the defence of the Common-wealth Wherefore it was too loosely said of Cicero That those Promises were not to be performed which were unprofitable to him to whom they were made nor those which did more endamage the Promiser than benefit him to whom they were made For the person promising is no competent Judge whether the thing promised will be profitable to him to whom it is promised unless it be in such a case as is before instanced of apparent madness Neither is every damage sufficient to absolve the Promiser from the performance of his Promise but the damage must be such as even from the very nature of the act it may be believed That could it have been foreseen it would have been exempted So he that is engaged to do so many days service for another is acquitted from his engagement if either his Father or his Son be affected with some dangerous sickness This was Cicero's opinion in this case If being retained to plead the cause of thy Client thy Son should in the mean time fall desperately sick Non est contra officium Off. l. 1. non facere quod dixeris Thou art not in duty bound to attend that Cause And in this sense is that of Seneca to be understood Then do I break my word then may I be justly charged with levity De Benef. l. 4. c. 35. when all things remaining in the state they were in when the Promise was made I do not perform what I promised But in case there fall out any unexpected change concerning that whereupon the Promise was made it gives me liberty to consult anew and yet I preserve my Faith I am haply retained in a cause wherein I do afterwards conceive that my Father may be damnified I have promised to take a Journey into the Countrey with such a Companion but I understand since that the way is infested with Robbers I have engaged my word to be present and to assist in such a business but am with held by the unexpected sickness of my Son or by my Wives falling into labour Omnia esse debent eadem quae fucrunt cum promitterem ut promittentis fidem teneas All things ought to be in the same condition as they were when I promised to oblige me to do what I did promise Where by All things we must understand all things relating to the nature of that Act which is in question See Camd. anno 1595. The English did frequently make use of these politick Maxims both with the Hollanders and with the Hans-towns as Camden records For when Queen Elizabeth by assisting the States of Holland had drawn down the whole power of Spain against herself and therefore for her necessary defence demanded those vast summs lent them to prosecute their War They urging That that Money was not due by their Contract till the end of the War and that until then she was obliged in Honour to assist them She Answered That a Prince was not bound by his Contract when for just causes
nourishment And by and by he addes What we have written of Foxes and other noxious Serpents the same we suppose may be said of men Whereunto he presently subjoins Furem Latronem qui quocunque modo occiderit sive manu sive jussu sive suffragio innocens est He that kills a Thief or a Murtherer whether it be with his hand or by his command or suffrage is to be accounted innocent And to these places of Democritus I suppose Seneca had some respect in saying Sen. de ira l. 1. When I command an obstinate Malefactor to be put to death I do it with the same mind and intent as when I command a noisom and venemous Beast to be killed Nay if I see a Viper or a Scorpion saith Philo though he attempt not to bite or to wound me yet will I kill him if I can lest he should endanger me or some others by that malignity that is in him We would not kill Foxes Wolves and the like ravenous Beasts could we but make them tame and serviceable and not be endangered by them so Ne homini quidem nocebimus quia peccavit sed ne peccet Neither would we hurt and destroy men because they have offended but because they should not offend again But since as well the strict enquiry into the nature and quality of every Fact doth often require great diligence as also the fitting of each crime with its just punishment much prudence and equity lest whilst every man presuming on his own sufficiency should arrogate more unto himself than others would be content to grant him and thereby much strife and contention should arise therefore it was unanimously agreed upon That in all just Societies of Men such should be made choice of as they esteemed to be the best and most pâ—udent amongst them or at least whom they hoped might in time prove to be so whom thâ—y called Magistrates upon whom by common consent they transferred all that right which by the Law of Nature every one of them had to punish Malefactors So the same Democritus The Laws would never restrain us from living as we please but that it was evident that men went about to wrong one another For envy is the mother of sedition But yet what is said before of private revenge the same may be here also said of publick and exemplary Judgments namely That there doth yet remain some footsteps of that ancient Right in such places and among such persons as are not subject to publick Judicatories yea and among such also as are so subject in some particular Cases As among the Jews it was lawful for any man to kill him immediately who forsook God and his Law Deut. 13.9 Numb 25. 1 Macc. 2.24 26. or that seduced his Brother to Idolatry which the Jews called the judgment of zeal which was first exercised by Phineas and from him was drawn into a custome Thus Mattathias and his five Sons fell upon a certain Jew who in obedience to the Kings Command was sacrificing unto the Heathenish Gods on the Altar at Modin and slew him as Josephus informs us Ant. l. 12. c. 4. 1 Macc. 2.24 So we read of three hundred Jews which were killed by their own Country-men in that Book which is vulgarly called the third Book of the Maccabees This was the sole pretence that the Jews made for their stoning of St Steven Acts 7.57 And for their conspiracy against St Paul Acts 23. many other examples we may find in Josephus and in Philo who in his Book of Sacrificers to Idols saith That such a man as shall so sacrifice Ch. 20. Sect. 9. should be punished as a publick enemy to all men be he never so nearly related unto us And his Motives and Arguments whereby he would perswade us to a defection from the true worship of God are to be published unto all that love true piety that all men may immediately run from all places to take revenge upon that impious Wretch being fully perswaded that the desire to kill such a man is an holy thing Yea and in many Nations this Right doth yet remain in Masters over their Servants and in Parents over their Children to punish them even with death So it was lawful for the Ephori of Sparta to put to death any of their Citizens without judgment Now from what hath here been said we may clearly understand what the Law of Nature was concerning punishments and how long it continued X. What the Evangelical Law requires as to this Let us now enquire whether this liberty of punishing or revenging an injury be restrained by the Gospel And surely it is no wonder as we have elsewhere said that many things that are consonant to the Law of Nature and to the Civil Laws are notwithstanding forbidden by the Divine Law seeing that that Law is the most perfect of all Laws and proposeth a reward far greater than humane nature or than can possibly be given by any other Law-maker for the obtaining whereof there are deservedly required such Vertues as exceed those commanded by the sole Law of Nature Vide Lactant. de ira Dei c. 18. Those Chastisements that leave behind them no brand of infamy nor lasting damage and are necessary for certain Ages and Conditions Servorum Filiorúmque peccata non coercere peccatum est as for Children and Servants are no whit repugnant to the Divine Evangelical Law especially if done by such as by humane Laws have a permission so to do as by Parents Tutors Masters c. which may easily be collected from the very nature of the thing it self For these are the Souls Physick altogether as harmless as well-tempered Potions though to the sense as unwelcome But as to revenge it is otherwise For as it only satisfies the mind that is sensible of the wrong it suffers it is naturally unlawful much less is it agreeable to this Evangelical Law as we have already shewed But the Hebrew Law did not only forbid to hate or bear any grudge against their Brethren Revenge as it proceeds from a delight in the Revenger naturally unlawful that is against their own Country-men Lev. 19.17 but it commanded them to confer on them some common courtesies though they were their enemies Exod. 23.4 5. Now our Saviour embowelling this Law and shewing That under the name of Neighbour all mankind was to be understood doth hereby convince us That we are not only restrained from hurting our enemies but that we are also commanded to do them good Matth. 5.44 But yet it was permitted to the Hebrews to revenge some great injuries done them though not by themselves yet by their Judges But the Evangelical Law takes away this licence also as is evident by that opposition that he puts between the Law and the Gospel Ye have heard that it hath been said An eye for an eye and a tooth for a tooth saith Christ but I say unto you c. And
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
Truce is granted in favour to one side only it ought not to be made use of to the detriment of the other Sometimes it is agreed That during the Truce it shall not be lawful to come and go at pleasure Sometimes again safety to our persons is granted but not to our things in which Case if any mans person shall be hurt in the defence of his Goods nothing shall be judged done contrary to the Truce For since it is lawful for us to defend our Goods personal safety is here to be referred to that which is principal and not to that which comes by consequence only XI A Truce broken on one side may discharge the other If the Truce be broken on one side there is no doubt but the injured Party may take Armes without any other solemn Denunciation for every Article implies a Condition as we have elsewhere said * Book 3. Ch. 19. Sect. 19. Ch. 20.36 Some examples we may find in Histories where the breach of a Truce hath been connived at even to the end of it but we may likewise read of the War made against the Hetrusci and others for doing things contrary to the Truce agreed on From both which different examples we may collect That the injured Party may lawfully take Armes But whether he will make use of this Right or not lyes in his own choice XII What if a punishment be added But this is evident That if the punishment agreed upon being required be accordingly inflicted on him that breaks the Truce then the Party injured hath no Right to make war upon that account For to this end is the Offender punished That all others may be secured so on the contrary If the injured person shall chuse rather to make war then is the Offender acquitted of punishment XIII When private acts break the Peace But yet what is done by a private person breaks not a Truce without the access of some publick Act that is of command or approbation But if he that doth it be neither punished nor delivered nor restitution made it shall be reputed as done by the publick Order of the State XIV Free Passage without a Truce how to be understood A freedom to pass to and fro when no Truce is agreed on is a kind of priviledge and will therefore admit of such an interpretation as is already declared * Book 2. Ch. 16. Sect. 12. where we treated of priviledges Now this priviledge being neither prejudicial to any third person nor grievous to him that granted it is not to be understood in the strictest sense but with some allowance of favour yet so that the propriety of the words will bear it but especially if it were freely offered and not granted at the request of him that hath it But much more when besides that which is private there is any publick advantage to be gained thereby We are therefore to forbear rigorously to interpret any such Passes though the words may perhaps warrant it unless otherwise some great absurdity will ensue or that we are thereunto led by very probable conjectures That it was so intended by him that gave them On the contrary A favourable construction even beyond the proper signification of the words shall take place rather than any such like absurdity shall be admitted especially if we shall be thereunto induced by any such probable conjectures XV. Who may be admitted under the name of Souldiers From whence we may collect That a safe Pass given unto Souldiers comprehends not inferiour Captains only but even chief Commanders because the propriety of the word will admit of such a construction Although also it may admit of another more strict so under the name of a Clerk may be understood a Bishop as under that of Souldiers Mariners employed in a Ship may be comprized and all such as in that War are engaged by a Military Oath XVI Leave given to come implies leave given to return Leave given to come shall be understood as if it were also given to return yet not through the force of the word but to avoid somewhat that would otherwise be absurd For that which is intended as a courtesie should not by any construction be rendred unprofitable wherefore it implies also a safe return so far until we shall arrive thither where we may be in safety Diod. Sic. lib. 17. It was therefore but treachery in Alexander to cause those persons to be killed in their journey homewards to whom he had indulged the favour to depart Concerning which fact Plutarch gives his censure thus Haec velut macula adhaesit bellicis actionibus regis caetera in Bello agere juste regaliter soliti This was a great blemish to the actions of a King otherwise just and magnanimous But on the other side if licence be given to depart it shall not be so understood as if it were also given to return neither doth that which is given us to come give us a Right to send for these are two divers and distinct things neither is there any reason why we should seek after a sense beyond that which is natural to the words but yet an errour herein committed though it confer no right yet certainly it mitigates somewhat of the punishment if any such be added But even he to whom leave is given to come may come once but not again unless the time limited in the Pass be such as may induce us to believe otherwise XVII How far it extends to persons The Son shall not be permitted to follow his Father nor the Wife her Husband unless it be with a purpose to cohabit with him for it is usual to dwell but not to travel with our Families a Servant or two though not exprest yet may be presumed to be allowed to such as cannot well travel without them for he that grants the principal may well be thought to grant the necessary consequents which yet is to be morally understood XVIII How far to Goods Where licence is granted to persons Their goods are also comprehended though haply not all yet such as are useful for travellers to carry with them XIX To Attendants Under the word Companions we are not to understand such whose condition is more hateful than his to whom the licence of Safe-coming is granted as Pyrates Robbers Fugitives and Rebels if the Nation from whence they come be in the Pass-port exprest it evidently excludes all Foreigners from protection XX. A Pass dyes not with him that gave it Licence to pass freely being granted by vertue of the supreme power is not in a case that is dubious made void by the death of him that granted it according to what hath been already said * Lib. 2. ch 13. concerning the grants of Kings and Soveraign Princes XXI During pleasure how to be understood It is likewise frequently questioned what is meant by this clause in a Pass during my pleasure whereunto the best answer is that this priviledge shall
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 â—s 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 maâ—â—â— 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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
ibid. common worse than Hangmen ibid. most backward to fight most forward to plunder 476. bound by Oath not to embezel the spoil 478. how they march inoffensively in a Country at peace 531. their Swords sealed in their Scabbards ibid. Souldiers straggling and plundering to be assaulted as Thieves page 374 Specification page 88 139 Speech proper to man Pref. iv Spies to send allowed by the Law of Nations 463. yea and to kill them being discovered ibid. Spoil taken from an Enemy whose 471. disposed of by the General 474. sold by the Questor and the Money brought into the Treasury without diminution 474 475. sometimes divided amongst the Souldiers 475. sometimes parted by Plunder 476. whereof the General might take what he pleased 475. sometimes to them that had contributed extraordinarily to the maintenance of the War 477. sometimes between the Souldiers and the State 478 479. sometimes to the maimed and to Widows and Orphans 479. sometimes imparted to our Associates in War 478. and to Reformadoes 479. may by an antecedent Law be decreed to publick uses 478. sometimes embezeled and the Commonwealth robbed ibid. taken by publick Acts the Commonwealths but by private theirs that take them ibid. of a Town if stormed the Souldiers if surrendred the Commanders page 479 Sponsions what 187. how far a General bound if the King refuse 188. at Caudis and Numantia obliged the Army not the People of Rome ibid. made by Generals Leagues by Kings page 179 Sponsors in War how far bound 180. their Estates may be sold their Persons enslaved but their Prince not obliged page 188 So Steal away the heart what it means page 441 Stipulation is the sign of a deliberate mind page 152 The Stock of a Slave may be taken from him in what cases 522. how far his Lords and how far his page 521 The Stoicks dispute much about words 376 377. they account it wisdom to know when and where to lye page 440 To Strangers to deny marriage unlawful 86. their Goods not subject to the supereminent power of Kings 178. they must observe the Laws and Customs of those they live with 81. to rob them anciently an honourable Trade 182. how they should judge of things taken in War 480. how a Right may arise by the Civil Law 141 their Goods may be detained for our or our Subjects Debts page 448 Subjection mutual between King and People refuted 41. publick what 117. sometimes requires protection page 422 Subjects sometimes called Servants 42. when they may safely engage in a just War 43. their Goods may be seized for the Debts of their society 448. how their Right may lawfully be taken from them 178. but not without just cause 179. may justly make War 427. what they may do if the cause be unjust ibid. or if they doubt not to execute the wicked commands of their Prince 428. not punishable for their Princes sin properly 411. of an Enemy may every where be presented unless protected by another Prince page 458 A Subject not to be sollicited to kill his Prince nor a Souldier his General 462. bound by the sentence of a Judge but so are not Strangers 448. being invaded the Peace is broke 549. not if Pirates ibid. fight under an Enemy whether it breaks the peace ibid. whether they may be compelled to be Hostages 555. and how ibid. of another Prince whether they may be defended page 425 Subjects not to resist the supreme Power proved by the nature of humane Society and Gospel 54 55. their liberty liable to the fact of their Prince 447. as to them a War may be on both sides just 429 430. taken in an unjust War to be delivered to their Prince 529. may make War against their Magistrates being authorized by the Supreme Power page 53 Subjection by way of punishment 117. Civil 485. Despotical ibid. mixt 486. perfect and imperfect page 116 117 Success good of bad designs no encouragement Pref. xii Succession is the continuation of an old Title in the same Family 42. makes men and Kingdoms Immortal 117. Males preferred before Females and the Eldest before the Youngest 128. to Kingdoms not to last beyond the time of the first King ibid. the Laws are divers concerning it 126. to an Intestate 122. what if childless 127. to an Estate newly gained 126. in Kingdoms Patrimonial how guided 127. Representative what 124. not known to the Germans till lately 126. Lineal Agnatical 130. Cognatical 129. that always respects the proximity to the first King 130. in Kingdoms indivisible to the Eldest 127. wherein the elder Brothers Son is preferred before the younger Brother 132. the Sisters Son before the Kings own Son 130. who shall be Judge of it if in doubt 131. of the Nephew before the Vncle is but of late page 132. Succession to Kingdoms the same as to other Estates when that Kingdom was first established 129. wherein the Antenate is preferred before the Postnate if the Kingdom be indivisible 131. why descendent rather than ascendent page 123 124 The Successor bound by the Contracts of a King 178. and how far page 179 Suffer a man may by occasion of anothers sin and yet not for it page 400 401 Suffrages how to be reckoned where divers Societies claim by unequal shares page 114 Superiours how they may lye to their Subjects 443. what they may do about the Oaths of their Inferiours 173 174. may compel their Inferiours not only to that which is justly due by Justice but by any other Vertue page 423 Suppliants liable to the licence of War 461. their Right to whom due 396 397. to be protected until the equity of their Cause be known 399. to be spared 508. unless guilty of some crimes deserving death ibid. Supplies sent to an Enemy by Neuters page 435 See Relief Supreme Power what and in whom 37. not in the People 37 38. it may be divided into Parts subjective and potential 46. not lessened by consenting that their acts shall be confirmed by the Authority of the Senate ibid. A Surety suffers not for the Debt but for his Engagement 400 401. not to be troubled unless the Principal be insolvent page 518 To Surrender unless succours come how to be understood page 531 Swallows feed their Young by turns page 123 T. TAlio not to extend beyond the person page 508 See Retaliation Talio bought off by the Jews page 371 Taxes that maintained the War restored by Fabritius page 477 The Temple at Jerusalem entred into by Pompey and burnt by Titus 466 467. its religious sanctity page 466 The Temples of the Gentiles burnt by the Jews ibid. Temples in War to be spared 514. to violate them Sacriledge page 515 Temptation vehement excuseth in part page 378 Terminus would have no bloud shed in his Sacrifices page 526 Territory whence 470. with what is fixt therein being taken in War is the Kings page 472 Terrour alone gives no internal Right to kill page 508 Testament wanting some formality what effect it
Succession Another Question is this Whether a King may so abdicate his Kingdom as to deprive his Son of his Right to succeed which is resolved by the same distinction For in Kingdoms meerly hereditary he that renounceth his Kingdom cannot transfer it to his Son But in lineal descents the Fathers act cannot null his Sons Right that is born For as soon as the children begin to exist the law makes provision for them yea and for those that are to be born so because that right which by the peoples consent is entailed upon them must in due time descend upon them Neither doth that which I have already said concerning transmission contradict this For that transmission is Necessary as to the Parents and not Voluntary But yet a difference there is between those Children that are born before the Renunciation and those born after For they that are already born have by the Law a full Right to the Kingdom though they that are not permitted to enjoy that Right during the life of their Parent but to those not born there cannot as yet be any Right acquired and therefore it may be taken away by the will of the people if the Parents also to whom it belongs to transfer that Right unto them be willing to release it And to this purpose is that we have already said concerning dereliction XXVII Whether the King or the People only have a Right to judge of the Succession Another Question doth sometimes arise namely who shall be judge of the Right of Succession to a Kingdom Whethet the King then reigning or the people by themselves or by such Judges as they shall appoint If the Question be put of such a Judgement as is Authoritative neither of them have any Right to judge For Jurisdiction there cannot be but in a superiour who should have respect not barely to the person but to the matter also which is to be poised with its due circumstances But the case of Succession is not properly under the jurisdiction of the present King because he cannot of himself by any Law bind his Successor For the Succession to the Empire lies not under the jurisdiction of the Empire but remains in the state of Nature wherein there was no jurisdiction at all But yet notwithstanding if the Right of Succession be controverted the pretenders unto it will do very piously and justly if they can agree between themselves upon some indifferent persons to whose arbitrement they can be contented to refer themselves whereof we shall discourse hereafter But the people have transferred all their Jurisdiction from themselves into the King and the Royal Family during which they cannot challenge to themselves any reliques of it This I mean of a true Kingdom and not of every Principality But yet if in the discussing of this Right any question do arise concerning the primary will and intention of the people at the first institution of the Kingdom it were not amiss to take the advice of the people in present that is of all the three States I mean of the Nobles Clergy and Commons in Parliament assembled as is usual in England and Scotland as Camden testifies in his History of Queen Elizabeth 1571 1572. For the people in present may be judged to be the same they anciently were Or by Delegates purposely chosen as in the Kingdom of Arragon unless it do sufficiently appear That the people then were clearly of another will and that thereupon the Right of Empire was obtained Plut. de fratrum amore Paus lib. 4. Justin lib. 2. Thus did King Euphaes suffer the Messenians diligently to enquire which of the Royal stock of the Aepytidae had most Right to the Kingdom But the contest between Xerxes and Artabazanes was determined by their Uncle Artaphernes to whom it was amicably referr'd as to a Domestick Judge XXVIII The Son born before his Father was King to be preferred before him that was postnate But let us proceed to other cases It hath been often controverted which of the two Sons hath the best Right to the Succession He that was born before the Father gained the Kingdom or he that was born after Whereunto the most Rational Answer is That he that was first born shall first succeed if the Kingdom be indivisible which holds true in every kind of Succession Yet did Henry the First youngest Brother to Rufus assume the Crown of England whilest his elder Brother Robert was in the Holy Land upon this pretence That he was born to his Father after he was Crowned King of England whereas his Brother Robert was born whilest his Father was Duke of Normandy only yet was Henry justly branded as an Usurper of his Brothers Right by Mat. Parisiensis But in case the Kingdom be divisible without doubt the latter shall have his share as well in this as in other goods concerning which it matters not when they were got Now if he that of a divisible Estate may have his share and in that which is indivisible is preferred by the priviledge of his birth Surely even the Inheritance must follow that Son which was born before his Fathers first Investiture But even in a Lineal Succession a Kingdom is no sooner got but the Children which are antenate do immediately conceive an hopes of Succession For admit that there are none born after surely no man will say That those before born are to be excluded But in this kind of Succession an hope once conceived begets a Right Neither doth it by any post fact determine unless it be in a Cognatical Succession where it may be for a while suspended by reason of the priviledge of Sex Thus was the case decided in Persia between Cyrus and Artaxerxes in Judaea between Antipater the Son of Herod the Great and his Brethren In Hungary when Geissa began his reign and in Germany though not without Blood between Otto the first Mariana l. 24. and Henry and in Turky between Bajazet the antenate and Gemes the postnate to the Empire And though haply it may be true that the choice of the Kings of Persia did much depend upon the suffrages of the people yet were those suffrages always limited to the Royal Family Lib. 23. For thus much doth Mariana testifie of the Arsacidae who being Parthians reigned in Persia And the like doth Zonaras in Justin of those Persians that succeeded those Parthians XXIX Unless otherwise provided by some Law But that it was otherwise in Sparta we attribute to the Laws proper to them only which gave the Sons that were postnate the Preheminence for their more Heroick Education The like may also happen by some peculiar Law made upon the first Investiture If a Soveraign Lord shall give unto his Vassal and to those that shall be born of him an Empire to be held of him in Fee upon the strength of which Argument Lewis in the contest that arose between him and his Brother Galeatius for the Dutchy of Millain did