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
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
Parents to love their Children than for Children their Parents And that also of Aristotle That which begets is always better affected to the thing begotten than that which is begotten can be to the begetter For that is properly said to be our own which derives its being from us Whence it comes That without the favour of the Civil Law the first Succession to the goods of the Parents is transmitted to their Children it being presumed That next after themselves they would that those born of them as being part of their own body should be plentifully supplied with all things not only necessary for life but for a more honest and comfortable livelihood Insomuch that were all humane Laws asleep yet as Paulus the Lawyer observes would natural Reason which is as it were a silent Law adjudge the Fathers Inheritance unto his Children and invest them in it as their due by an undoubted Succession But yet as Papinianus notes cannot Parents claim the estates of their Children by the same Right as Children do the Inheritance of their Parents For Parents are admitted to their Childrens goods meerly out of Commiseration but Children to the estate of their Parents by the common vote that is both of Nature and of their Parents Philo in his third Book of the life of Moses gives this Reason why Moses made no provision for Parents out of their Childrens Estate Because seeing that the Law of Nature did provide that Children should succeed their Parents in their Estates and not Parents their Children therefore did Moses pass over in silence what was contrary to the desires of all Parents and might prove unlucky Hence we may observe That the Inheritance of Parents descends upon their Children by a twofold Right partly as a meer debt of Nature and partly out of a Natural Conjecture That it is the Will of their Parents that their own Children should be best provided for Lib. 5. c. 9. Sanguini honorem relinquit saith Val. Max. of Quintus Hortensius His honour he bequeathed to his Blood For though he detested the wicked life of his Son yet dying Ne ordinem naturae confunderet non nepotes sed filium haeredem scripsit To preserve the order of Nature he made his Son and not his Nephews heir to his Estate Thinking it enâ—ugh that he had declared his dislike of his Sons ill manners whilest he lived And therefore dying Ib. he left him the honour due to his Blood The like he records of Fulvius who causing his own Son to be apprehended for conspiring his death did not only forbear to prosecute him whilest he lived but dying Dominum omnium esse voluit quem genuerat haeredem iâ—â—â—ituens non quem fuerat expertus Made him heir of all he had regarding his Birth and Blood and not his Crimes And to this purpose is that of St. Paul Children do not lay up for their Parents 2 Cor. 12.14 but Parents for their Children VI. Of Representative Succession Now because it is thus natural and ordinary for Parents to take care of their Childrens Education therefore whilest they live there lyes no obligation upon the Grand Parents to give them maintenance Yet in case the Father or the Mother dye or be otherwise disabled then it is a duty which in all equity the Parents of the deceased Son or Daughter are obliged unto to see their Nephews or Neeces virtuously brought up And by the same reason is the same duty incumbent on the Parents of more remote degrees if these fail And from hence ariseth the Right of the Nephew to inherit the Estate instead of a deceased Son as Vlpian speaks Which gave occasion to that Hebrew saying Filius etiam in Sepulchro succedit That the Son succeeds though in his Grave Because Filii filiorum sunt quasi filii The Sons of that dead Son are reputed Sons And as Modestinus speaks Shall fill up the vacant place of their dead Father Justinian thought nothing more unreasonable than this That the Nephew should succeed instead of the deceased Father in the Estate of his Grand-father in case he dyed Intestate And this kind of Vice-succession our Modern Civilians do affectedly call Representative when the Sons claim an Estate by representing the person of their Father being dead And that that manner of Right was approved of amongst the Hebrews the division of the Land of Canaan amongst the Children of Israel doth sufficiently demonstrate As our Sons and Daughters are nearest unto us in blood so are those who are born of either of them as Demosthenes observes in his Oration against Macartatus VII Abdication or exheredation What we have hitherto said concerning the Right of Succession arising from our Conjectures at the Will of the Intestate is of force if there appear no certain sign that he was otherwise minded Such in the first place was among the Grecians an Abdication or a manifest renouncing or casting off of the person claiming And among the Romans an open disinheriting of him yet so that if that person did not by his crime deserve to be put to death he was to be allowed sufficient to sustain Nature for the Reasons aforesaid VIII The Right of Bastards And here we may add another exception to this general Rule that is If it do not sufficiently appear that such a Son or Daughter was begotten by him But yet we know that of such matters of fact there can be no certain knowledge But of such acts as are publickly done before men there may be some certainty upon the Testimony of such as beheld them In which sense the Mother may be certain that the Child is hers by those who were present at its Birth and Education but thus certain cannot a Father be Which Homer first and after him Menander thus intimates Know directly no man can From what stock himself first sprang And so in another place he thus distinguisheth between the Parents Fathers do love their Children Mothers dote She knows them hers but this he takes by rote Therefore some way was thought fit to be found whereby it might probably appear who the Father of every Child was And this was Marriage taken in its Natural terms that is for such a cohabitation as placeth the woman under the custody or safeguard of the man But whether by this or some other way the true Father of the Child be known or that any man doth own the Child as his by the Law of Nature that Child as well as that born in Marriage shall inherit Neither is this strange seeing that we see meer strangers being adopted for Sons to succeed in the Jnheritance only by conjecture at the owners will And the Nephew instead of the Father as old Jacob adopted Ephraim and Manasses into the number of his Sons in the stead of their Father Joseph But our Natural Issue is differenced from our Legitimate by Law only So Euripides Bastards no less than those in Wedlock born Are ours although by Laws
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
consent a man hath over his adopted Son XXVII Of the right that Lords have over their Servants XXVIII How far this right extends as to life and death XXIX What the Law of Nature determines as to those that are born unto Servants XXX Of Servitudes there are divers kinds XXXI What power by consent one Nation hath over another that freely subjects it self XXXII What right is acquired over persons for some crime committed I. The Right of Parents over their Children A Kind of Right may be gained over Persons as well as things and that either by Generation by Consent or by way of Punishment for some delinquency By Generation so both the Parents have equal right over their Children yet so that if they differ in their Commands the Father as being of the more noble Sex is to be obeyed before the Mother Of this mind was St. Chrysostom 1 Cor. 11.3 It is expedient saith he that the Wife should be subject unto her own Husband for equality in honour begets quarrels And St. Augustine also A Son born in lawful wedlock Ep. 191. is more at the command of his Father than of his Mother II. This right differs according to the age and discretion of their Children In Children we must distinguish their three different times The first is that of their Infancy whilst they are of unripe judgment not able to know good from evil not to distinguish truth from error The second is When they grow to ripe judgment but yet continue in their Fathers Family The third period is this When they are separate from their Fathers and have Families of their own During the first of these all the actions of the Child ought to be regulated by the Parents for it is but equal that he that cannot govern himself should be governed by another Vide supra c. 3. §. 6. and naturally there is none so fit to govern the Child as the Parents And yet by the Law of Nations the Child is then capable of inheriting an estate though he be justly restrained from managing of it by reason of his immature judgment This was Plutarch's observation where he saith De fort Alex. lib. 2. That Children have a Right 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the Inheritance but not to the use of it Neither is it from the Law of Nature that all that is the Childs should be disposed of by the Parents but from the Laws of some people which do in this case sometimes distinguish the Father from the Mother as they do also between their bond and free children and between the natural issue and legitimate of which distinction the Law of Nature takes no Cognizance except only of the priviledges of Sexes where both Parents contend who shall command the Child III. The Second Period Whilest the Child is a part of the Parents Family In the second period when the Childs Judgement is ripened with his years yet abiding in his Fathers house those actions of the child only are subject to the commands of his Parents that are of moment to the well ordering of the estate of his Father or of his mothers Family For it is but reasonable that every part should endeavour the welfare of the whole But in his other actions he hath a moral power to do whatsoever his own judgement shall guide him to provided that in all things he endeavour as far as in him lies to please his parents But because this is a debt arising not by vertue of that moral faculty as those above but from the duty of piety reverence and gratitude it cannot make void those actions of his that are otherwise done no more than it will suffice to avoid any grant or gift given by the right owner to say That it was against the Rules of Parsimony IV. Of Parents coercive power During both these spaces of time Parents have a Right not to govern only but to punish and to enforce obedience from their children so far forth as they ought to be either compelled to their duty or to reform what is amiss But as to greater punishments we shall discourse elsewhere V. Their power to sell them Although the Paternal Right be so inherent in the Fathers person as that it can no ways be either taken from him or transferr'd to another yet naturally if the Civil Laws do not restrain the Father hath power to pawn or if necessity so require to sell his son Hist Goth. if he have no other way or means to maintain him Thus the Goths as Jornandes records solicitous of their Childrens safety chuse rather to preserve their lives than their liberties and therefore in Compassion thought it better to sell them to be kept and nourished as slaves than to suffer them to dye in defence of their freedome Which Right other Nations seem to have borrowed from that old Theban Law recited by Aelian which also seems to be derived from the Phoenicians Lib. 2. and also from the Hebrews and by them to the Grecians as Apollonius observes in his Epistle to Domitian For Nature it self is presumed to give us a right to all that without which that which she commands cannot be obtained VI. Their power over them when separate from them In the Third space or period that is when the Children are grown to maturity and in another Family by themselves then they are free to do what pleaseth themselves always paying the duty of piety and reverence to them which is an obligation never to be cancelled whence it follows that the acts of Kings are not therefore null'd because their parents are living VII The Rights of Parents are either Natural or Civil What power Parents have over their children more or less than this they derive from the positive Laws of men which in all Nations are not the same So by that right that God gave unto the Hebrews the power of a Father to null the vows of his Sons and Daughters was not perpetual but only during their abode in their Fathers family As may appear Numb 30.2 3 4 5 verses For otherwise the Son being parted from his Father had power at thirteen years of age to bind himself without the consent of his parents The Roman Citizens being Fathers had a peculiar power over their Sons though they were heads of their own Families The Romans gave as much power over their Sons as over Slaves Pyrrhoniorum 3. before they were made free which power they themselves confess that other people had not over theirs So saith Sextus Empericus The Roman Law-givers gave as much power to parents over their children as over their slaves for the goods of the Children were not reputed theirs but their Parents until they were manumitted in the very same manner as their slaves were Which other Law-makers rejected as Tyrannical The like doth Philo record of them All manner of power over the Son was by the Romans given to the Father
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
Kingdom of Epirus by the Judgement of his Father Pyrrhus having no lawful Issue Paus l. 1. The Tartars make no difference between Bastards and them that are Legitimate So Herodotus of the Persians Mos est illis ut Nothus regnet dum legitimus aliquis reperitur Who admit of Bastards till one that is legitimate may be found And we read in Justine of a Treaty between King Atheas and Philip concerning the Adopting of Philip to succeed him in the Kingdom of Scythia Jugurtha though a Bastard Salust bell Jugurth yet succeeded in the Kingdom of Numidia by Adoption The like we read of those Kingdoms which the Goths and Lombards conquered that the succession often passed by Adoption Nay Paul Diac. l. 6. de gest Longob the succession to the Kingdom shall pass to the nearest of kin to him that last possest it though he were nothing of kin to the first King If any such succession be in force in those places Thus did Mithridates in Justine plead That Paphlagonia became his Fathers Inheritance by the death of all its domestick Kings XIII In Kingdoms that are Indivisible the eldest succeeds But in case express caution be given that the Kingdom shall not be divided and yet it be not exprest who shall succeed then the Eldest whether Son or Daughter shall enjoy the Kingdom So saith Nicetas Coniates Nature indeed observing her own order gives the greatest honour to the first-born But God hath a Prerogative above Nature and acts not alwayes by her order And speaking of Isaacius he saith That by his birth-right the succession to the Kingdom was his The like is said of Hircanus in Josephus In the Talmud under the Title of Kings we read That he that hath the best title to an estate of inheritance hath also the best title to the possession of a Kingdom and therefore the eldest Son is alwayes preferred before the younger Herodotus makes it the custome of all Nations for the eldest Son to succeed in his Fathers Throne And in another place he terms it the Law of Kingdoms Livy makes mention of two Brethren Allobrogi contending for a Kingdom whereof the younger had the worst Title but the greatest Power Of all Darius his Sons Artabazanes being the first-born claimed the Kingdom as his birth-right Quod Jus ordo nascendi Natura ipsa gentibus dedit Which Right saith Justine both the order of birth Lib. 2. and Nature it self hath given to Nations which in another place he calls the Law of Nations Lib. 40. As Livy also saith It is a priviledge due by the order both of Age and Nature yet must this be understood with this restriction unless the Father by his Testament do otherwise dispose of the succession as Ptolomy in Justin did his Kingdom to his youngest Son But yet he that shall thus succeed is bound to gratifie his Brethren for their shares with all respect and honour if and as far forth as he shall be able to do it XIV A Kingdom by the peoples consent hereditary if in doubt is presumed to be indivisible But those Kingdoms that by the Peoples free consent are made hereditary may by guessing at the will of the people be transferred Now because it may easily be presumed that the people will give their consent to that which is most expedient therefore in the first place it will follow That unless some Law or Custome do otherwise determine as in many it hath and may do the Kingdom should stand entire and undivided because whilest so it will be the better able both to defend it self and to conserve the people in peace and unity Lib. 21. A Kingdom united is stronger than when divided Of this opinion was Justin Firmius futurum esse regnum si penes unum remansisset quam si portionibus inter filios divideretur arbitrabantur They judged that the Empire would be more firm being intirely possest by one than it could possibly be if divided amongst many Sons XV. The succession not to last beyond the line of the first King Again It being granted that the peoples consent is easily gained to what shall be most expedient it will in the next place follow That the succession should descend from the first King in a right line Because that Family was then electeed as being thought the most Noble which Family being extinct the Kingdom doth return back to the people Thus Curtius adviseth * Lib. 8. That the Soveraign Power be strongly fixt to one Royal Family which ought to claim by an hereditary Right For the people being so accustomed will not only reverence his person but will have the very name of their King in great esteem And therefore no man ought to usurp that dignity but he that was born unto it XVI Natural Issue not concerned in it Thirdly It will thence likewise follow That none should be admitted to succeed in the Royal Throne but he that is born Legitimate Not the Natural Sons because they are subject to be reproacht to whose Mother the Father did never vouchsafe the honour of marriage And therefore of such there can be no certainty who was the Father But in the succession to Crowns the people ought to have the greatest assurance that in such a case can be given to avoid Controversies For which cause it was that the Macedonians preferred Demetrius the younger Son to the Throne rather than Perseus the elder because he was born in lawful Wedlock Not Sons by Adoption because the people are apt to conceive greater hopes and to have their Kings in greater esteem and veneration when they know them to be descended from a Royal Stock Est in Juvencis est in equis patrum Virtus In Horse and Oxe we may descry The Syre's Generosity XVII Males preferred before Females in the same degree Fourthly That of those that have equal Title to the Inheritance either as being in the same degree or as succeeding to their Parents who were in the same degree the Male Issue be preferred before the Female because Men are fitter for War and to administer other Regal duties than Women can be XVIII The elder before the younger Fifthly That of Sons or of Daughters if there be no Sons the elder be preferred before the younger because it may easily be believed that as he is of more years so he either then is or may sooner arrive to be of sounder Judgement than the younger So Cyrus in Xenophon Imperium relinquo majori Natu I bequeath my Kingdom to my Eldest Son as being of most experience and consequently best knowing how to govern And because our green years will sooner ripen than our Sex change therefore the prerogative of our Sex is much to be preferred before the priviledge of our Age. Wherefore Herodotus where he tells us Lib. 7. that Persis the Son of Andromede the Sister of Cepheus did succeed Cepheus in his Kingdom gives this as the reason Because
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
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
them or when they do some profitable acts being not commanded but voluntarily and freely and beyond their duty wherein though servants they perform the office of Friends As also when a Servant or Slave shall out of his dimensum or allowance pinch his own carkass to save somewhat every day or by improving his spare time gain something to himself This is in a manner his peculium which is as Theophilus defines it his natural Patrimony as if thou shouldst call the Marriage of a Bond-man with a Bond-woman a natural Marriage Which stock Vlpian calls Pusillum Patrimonium A small Patrimony Such was that which Vlysses proposeth to Eumaeus and Philaetus Vestrum utrique thori socias dabo largiar rem Vicinasque domos nostrae Wives for you both and Goods will I provide And Houses where near us you may reside Thus also Varro speaking of Servants saith That by treating them liberally as by enlarging their proportion in dyet and cloathing by remitting somewhat of their hard labour or by granting them some little stock of their own to be kept with those of their Masters they may be made more sedulous careful and industrious than they would be Neither will it be much to the purpose to say Peculium That such a little stock may at the will of the Lord be either taken away or diminished at pleasure For in case he doth so without just cause he deals very unrighteously with them But a just cause there may be not only when it is done by way of punishment but when it is done to supply the necessity of his Lord for the Servants profits are more subject to the necessities of his Lord than the goods of Citizens to the City they inhabit Lib. 7. de Ben. Very pertinent hereunto is that of Seneca It will not follow that a Servant hath nothing because his Lord may chuse whether he shall have any thing And again in the same place Who can doubt but that the Servant together with his stock is the Lords yet may the Servant present his Lord with a gift And hence it is that the Lord cannot re-demand that debt which being due unto his Servant in the time of his servitude he pays him after his manumission For as Trophoninus testifies Debiti vel non debiti ratio in condidictione naturaliter intelligitur In personal actions the consideration of what is due or not due is to be understood naturally But possible it is That the Lord may be indebted to his Slave naturally As therefore Clients may confer something to the use of Patrons and Subjects to the use of Kings so we may read of some Servants who have out of their own small stock contributed something to the use of their Lords Dionys lib. 1. Lib. 8. Ep. 16. As in case he be to raise a Portion for the marrying of his Daughter or to redeem a Son out of Captivity or upon such like accidents Pliny indulged this favour to his Slaves That they might make their Wills and give or bequeath what they had got unto any so they were of his own Family Among some Nations we read That a fuller right of acquiring things was granted unto them according to the several degrees of servitude as we have elsewhere described Lib. 2. c. 3. And many nations have corrected their Laws reducing their external right of Lords over their Servants unto that internal justice which we have heretofore expounded For even among the Grecians it was lawful for Slaves being too rigorously treated to demand That they might be sold And even at Rome they might ad Statuas confugere Fly to the Statues or implore the assistance of the Magistrates in cases of Famine Cruelty or any such unsufferable injuries done them And this also is now allowed though not in the strictness of right yet as proceeding from the goodness and humanity and sometimes such as may be in equity due as That after long and very hard service they have rewarded that service with liberty So saith Vlpian After that Captivity by the Law of Nations came to be in force manumission became a courtesie An example whereof Terence gives us Thou wast my Slave till I enfranchiz'd thee Because thou didst thy duty cheerfully In some places it is customary to set a Slave at liberty if he can procure eight times as much as he was bought for Lib. 3. Salvianus observes that in his time it was of frequent use That Servants though not of the best yet at least not of the worst kinds of servitude were rewarded with liberty And as he adds Were permitted to carry away with them whatsoever they had got in the time of their service Whereof we have many examples yet extant in our Martyrologies And here I cannot but commend the generosity of the Hebrew Law which commanded That the Servant having served out his time prefixt Deut. 15.13 should be altogether free and that he should not go away empty handed That is as their customs expound it That his Gifts should not be less worth than thirty Sicles which in our Money amounts to about three pounds ten shillings Against the contempt of this Law the Prophets do bitterly complain The like doth Plutarch of Cato Major for selling his Captives who had faithfully served him until they were almost worn out with Age forgetting the common condition of mankind VII Whether Captives may fly But here falls in another Question namely Whether a Captive taken in a just War may lawfully make his escape I do not speak of him that for some particular fault of his own had deserved to be deprived of his liberty but of him who in the publick discharge of his duty falls into this calamity Whereunto the best Answer is That he ought not because as I have said by the general content of all Nations upon the account of the City he owes his labour Which notwithstanding is so to be understood unless to avoid some intollerable cruelty he be enforced so to do VIII Whether they that are born of Slaves are obliged to the Lord and how far We have elsewhere started another Question Whether or no and how far forth the Children that are born of such Captives are by an internal Right bound to him whose Bond-men the Parents are Which Question in regard of the persons so taken in War cannot be well omitted For if their Parents did for their own crimes deserve to be put to death Children that were expected to be born of them are bound to serve for giving them their lives which otherwise they had never had For otherwise also even for want of Food and Rayment their Parents had power to have sold them for Slaves as we have elsewhere shewed Such a Right it was that God himself gave unto the Hebrews Lib. 2. c. 5. over the Children of the Cannanites So for the publick Debts of a City Children already born Deut. 15.13 as being a part of
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