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
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
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
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
altogether discharged of the duty incumbent on him as a Father Nature it self will not admit of such an alienation but yet he may commit his Son to another man to be fed and educated by way of Substitution XXVII What power Lords have over their Slaves The most ignoble of all Subjections is that whereby a man gives himself up to perfect slavery Such were they among the Germans of whom Tacitus speaks That sold themselves for food and rayment And of such there were great numbers among the Graecians who as Dion Prusaeensis notes of Freemen became Slaves and performed their service according to Articles of Agreement Now that we call perfect Bondage which tyes a man during life to perform all manner of work for no other reward but food and cloathing which if it extend it self to whatsoever conduceth to the preservation of Nature is not much to be grieved at For our continual labour is indifferently well recompensed with a constant supply of things necessary for life which they that hire out themselves by the day only do often want This the Stoick Possidonius observed out of Histories that many in ancient times conscious of their own weakness to maintain themselves voluntarily submitted themselves to be commanded by others Constantly performing what they were able and receiving from their Lords whatsoever was necessary for them Like him in Plautus If I were free the charge were mine But being bound that charge is thine XXVIII Whether this power extend to life and death No Lord can have absolute power over the life and death of his Slave if we respect internal Justice For no man can take away the life of another and be guiltless unless it be for some capital crime committed and yet by the Laws of some Nations he that shall kill his Slave for what cause soever is indemnified as Kings are in all Nations by reason of their vast and unlimited power For as Seneca notes If a Servant dare not plead with his Master for fear of suffering the worst of torments De benef lib. 3. c. 22. no more dare Subjects with their Prince nor Soldiers with their General who have all of them equal Right though under unequal Titles No Master then hath a just power to injure his Slave but only as That is sometimes improperly called Just which being done is not punishable Such a Right did Solon give to Parents over their own Children and so did the ancient Roman Laws witness that of Sopater It was lawful for him being a Father to kill his own Children if they offended for the Law presuming upon the Fathers Integrity had permitted such a Right unto him The like power saith Dion we find permitted in many Nations famous for wise and wholesom Laws XXIX Of the Children of Slaves that are born and bred in their Masters family Vide infra Ch. 8. §. 18. Pliny l. 10. c. 34. de columbis Lex Visigothica The Sclavonian Law judgeth the Children by the Father The Laws uf England Littleton de Villanagio The Roman Laws What the Law of Nature is in this case If the Parents cannot maintain the Child but at the Lords charge the Child is a Slave But of the children of Captives which are born of Slaves in their Lords Family there is yet a more difficult question For by the Laws of the Romans and of other Nations concerning Captives as we shall elsewhere shew as of brute Beasts so of people of a servile condition it holds true that Partus sequitur Ventrem As is the Mother so is the Child But this notwithstanding is not altogether congruous to the Law of Nature especially where the Father of the Child may be sufficiently known For since even among dumb creatures as Pliny observes of Doves Amor utrique sobolis aequalis Both Parents are equally concerned for their own young thereby acknowledging their common interest in them So also had not the Civil Law otherwise determined the Child had followed the condition of the Father no less than that of the Mother For if the Son saith the Visigothick Law be born and created by both Parents why should he follow the condition of the Mother only who without the Father could not beget him Among the Sclavonians as also in some parts of Italy among the Lombards and Saxons the children are accounted either bond or free from their Father The Laws of England judge of the Child not by the Mother but by the Father for the Husband and Wife being but one person in our Law and the Wife marrying a Freeman by the common Law of England the Issue is free Which Laws though different from the Roman Civil Law yet as Aquinus notes doth not much deviate from the Law of Nature And why not since among the Romans by their Mensian Law if both the Parents were Aliens the Child born of them were so too as Vlpian tells us Now let us admit that both the Parents are Slaves it is worth our pains to know whether naturally the Child be so or not And certainly if the Parents have no other means to breed up the Child but in their Lords family or at his charge they have a power to deliver him up to the Lord for a Slave For although the Child were ingenuous and free-born yet in such a case they have power by the Law to sell him And in case the Parents were Servants to several Masters then by the Law of Nature the Children were to be divided between their respective Lords But if they had but one Child then of right it belonged to him whose Slave the Father was the Lord of the Mother being first satisfied for his half part and yet of the Children of him that was born in the house of his Lord two parts did accrew to his Lord and but one to the Lord of the Mother according to the Edict of Theodoric Otherwise not as Cassiodore records Now whereas I said before that the Parents if they had not any means to breed up their Children but at the charge of their Lord might deliver them up unto him as his Slaves it may seem that this Power doth naturally arise from their supplying them with food and other necessaries and therefore where there is no such necessity as where there are other means to breed them they have no right to sell them And so it was adjudged by Charles the Bald wherefore the Right that these Lords have in the Children of their bond-servants springs from the many years Alimony that is given them by the Lord before they could be serviceable to him which they are to recompense by their future labour And for this cause the Parents cannot dispose of them to any other man neither may the Servant flee from his Lord until full satisfaction be given unto that Lord for the charge of their education But if the Lord be too unmercifully cruel then that even they who have surrendred themselves as Slaves may provide for their
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
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
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
Baronies that are held by Homage or Fealty to the chief Lord. This is the succession of the Kingdom of England As in the Counties of Artoise Champane Tolouse and Brittany This was the order of succession prescribed unto the Dutchy of Mantua by the Emperour Sigismund Anno 1432. and by Charles the Fifth Emperour and King of Spain to Philip the Second in his Kingdoms and Principalities But the proof of this Lineal Succession though there were no Law or Example to guide us may be taken from the order that is observed in Publick Assemblies For if in that order regard be had to lineal descents it will be a sign that the hopes conceived of the children of the deceased was by Law quickened into a Just Right so that it may well pass from the dead to the living This is that Lineal Cognatical succession wherein women and those that are born of them are not excluded but only post-pon'd in the same line So that recourse is had unto them in case the Males that are nearer or that those born from Males in an equal line should fail The ground whereof as it differs from an hereditary succession is the hopes which the people conceive of them who are nearest related to the Prince in possession and who have the justest hopes to succeed him that they have Educations answerable to their high birth and hopes such are the Children of those Parents who had they lived must have succeeded XXIII The lineal succession of the Males only Agnatical succession There is likewise another lineal succession of Males only which is called Agnatical which differs from the Cognatical in that it excludes Females and admits only of Males which from the Kingdom of France takes its rise and is therefore called the French succession Though the Kingdom of Israel seems to have been thus setled 2 Chron. 13.5 And the chief reason of this is to debar Strangers from the Crown by marrying the Kings Daughters In both these lineal successions all are admitted that are any wayes allyed though in degrees never so remote from the last possessor whilst they can derive themselves from the first King And in some places where the Agnatical Succession is deficient recourse is had to the Cognatical Nay and this latter is sometimes preferred before the former as in Aethiopia where the Kings Sisters Son did alwayes succeed him which Bede records also of the Picts where the kindred of the women were preferred to the succession The like we read of the Indians So Tacitus of the Germans That their Kings gave the greatest honour to their Sisters Son as being nearest in blood to them XXIV A succession that alwayes respects the proximity to the first King Livy lib. 29. Vand. l. 1. Other manner of successions may be introduced either by the people or at the pleasure of him who holds the Kingdom in a patrimonial right so that he may alienate it For he may so settle the succession that they that are next to himself at all times may be preferred before others as it was anciently among the Numidians where for the like cause the Unkle did succeed in the Kingdom before the Children of the last King This Custome was introduced in Africk by the Testament of Gizerick wherein amongst many other things he chargeth his Vandals That they should admit of him only into the Throne that should be at any time nâ—arest unto himself in a right Masculine line and of them still the eldest and then the next in order wherein he regarded not the present possessor but the first Acquisitor Which order whether Gizerick himself learnt from the Africans among whom it had been long observed or whether they learnt it from some of our Northern Nations is a question The like was of old in use among the happy Arabians as may be gathered out of Strabo And the later Historians report the same of Taurica Chersonesus Lib. 16. Neither is it so long since the Kings of Fesse and Morocco did the like Livy speaking of Massinissa saith That whilst he made War in Spain for the Carthaginians his Father dying the Kingdom fell according to the custome of the Numidians unto Desalces the deceased Kings Brother The same Custome is in force throughout all Mauritania as Mariana testifies and in the Kingdom of Mexico and Peru as the Histories of those parts record Now the same if in doubt is to be observed in things committed to trust if it be left to the Family And this agrees best with the Roman Laws though some Interpreters do wrest it otherwise These things premised it will be no hard matter to resolve all Controversies which do arise concerning the Right of Kingdoms which the different opinions of Lawyers have made so intricate XXV Whether the Son may be so exheredated that he shall not succeed in his Fathers Kingdom And in the first place this Question ariseth Whether a Father may exheredate his Son so that he shall not succeed in his Kingdom Where we must distinguish between Patrimonial Kingdoms which are Alienable and such as are not Alienable In the former there is no doubt but that exheredation is lawful for such Kingdoms differ nothing from other Goods and therefore in such places where by Law or Custome Exheredation is in force it is practicable even in the case of Kingdoms yea though there were no Law or Custome to warrant it yet naturally it is lawful for a Father to exclude his Son from all but bare Alimony yea and from that also if he have committed any Crime worthy of death He may if the Kingdom be Patrimonial or have been otherwise notoriously wicked and have of his own whereby otherwise to subsist Thus was Reuben punished by Jacob with the loss of his Birth-right and Adonija by David with the loss of his Kingdom For David's Kingdom was in a manner Patrimonial though not by the right of War yet by special donation from God himself Now where the Kingdom is Patrimonial the King may nominate which of his Sons he will to succeed him as the Kings of Mexico now do Nay if the eldest Son have provoked his Father by any hainous crime and there be no manifest sign that he hath forgiven him he shall be as one tacitely exheredated Otherwise in Kingdoms nor alienable But it is otherwise in Kingdoms not alienable though they be hereditary because the people are best pleased that the Kingdom shall descend in an hereditary way especially from an Intestate Much less shall it be in the power of a Father to exheredate his Son where the Kingdom is to pass in a lineal descent For there without any imitation of an Inheritance it was agreed in its first Institution That the Kingdom should by the peoples gift pass to every person of the Royal Family in such order as was then prescrib'd XXVI Whether a King may renounce his Kingdom In a Kingdom meerly hereditary he may but nâ— in a Lineal
prosecuted this rule is pertinent What is unlawful for a man to do is also unlawful for another to compel or perswade him to do whereof let these suffice for examples It is unlawful for any subject to kill his Prince or to deliver up a Town or Fort without the consent of a Council of War or to plunder his fellow Subjects And therefore it is likewise unlawful for me being an Enemy to perswade another Prince's Subjects remaining so to do it For evermore He that occasioneth another man to sin doth therein sin himself Neither is it sufficient to say That it is lawful for him that excites such a man to do such a villainous act to do it himself for it is true that it may be lawful for him to kill him but not to do it in that manner For that of St. Augustine is very true Nihil interest utrum ipse scelus committas an alium propter te admittere velis It matters not much whether a man do commit wickedness himself or cause another to do it for him XXII Yet if he offer himself we may make use of him But it is another rhing if such a person shall freely offer himself without any instigation from us for it is not unlawful for us to make use of him as an instrument to effect that which it is lawful for us to do as we have already proved by the example of God himself * Lib. 2. c. 26. §. 5. Transfugam jure belli recipimus saith Celsus that is It is no way repugnant to the Law of Arms to receive Renegadoes into protection and to make use of them Neither are such to be delivered up unless it be so agreed by the Articles of Peace CHAP. II. How Subjects Goods become liable to their Princes Debts I. Naturally no man is bound by the fact of another but the heir only II. Yet by the Law of Nations the Goods and Acts of Subjects are liable to the debts of the Prince III. An example whereof in the taking of men Prisoners IV. And in seizing their Goods V. Which is lawful when the Right is denied and when that is where is also shewed that though the thing be adjudged yet it neither gives nor takes away any mans Right VI. That the lives of innocent Subjects are not liable to satisfie the Princes debt VII The difference herein between the Civil Law and the Law of Nations I. Naturally none but the Heir obliged by the fact of another LET us now descend to those Rights which the Law of Nations grants unto us some whereof appertain to every War others to some particular kinds of Wars only Let us now begin with generals By the bare Law of nature no man is bound by the fact of another but he that succeeds to inherit his Goods for as soon as Dominion was first introduced it was likewise agreed on That all debts should pass together with the Goods to the next Occupant Videsupra B. 2. ch 21. § 19. according to that old Law-Maxime Transeat fructus cum onere Let the Estate and the Charge go together The Emperour Zeno was wont to say That it was contrary to natural equity that one man should be molested for another mans debt Hence arise those titles in the Roman Laws That the Wife shall not be sued for the Husband nor the Husband for the Wife the Son for the Father nor the Father or Mother for the Son Neither as Vlpian saith expresly shall any particular person be liable to the debts of the Commonwealth that is if the common stock be able to discharge them otherwise they shall not as individual persons but as they are a part of the whole De Benef. l 6. c. 20. If any man shall lend his money to my Country saith Seneca I shall not acknowledge my self his debtor yet shall I willingly advance my proportion not as my own debt but to disengage my Country And again Singuli debebunt non tanquam proprium sed tanquam publici partem What the Commonwealth owes every particular Citizen owes not as his own debt but as his part of the publick It was particularly provided by the Roman Laws That no one of the Villagers should be obliged for another of the Villagers debts and in another place That no ones possessions should be destrained for the debts of another no not for the publick And in Justinians Novels Reprisals are expresly forbidden and this reason added Because it hath no face or colour of justice that one man should be the debtor another enforced to pay the debt where also such exactions are called odious Thus did Theodorick in Cassiodore account it for one man to be kept as a Pledge or Hostage for another II. But by the Law of Nations Subjects are for their Prince Although these things be true yet by the voluntary Law of Nations it may be nay as it appears it hath been introduced That what debts soever any Civil Society or their Prince shall contract either primarily by themselves or be engaged for by not rendring unto others that which is their right all the Goods both corporeal and incorporeal of those that are subject to that Society or the Prince thereof shall be liable and stand bound to discharge Now this seems to be inforced by a kind of necessity for otherwise the Gap would be so wide as to let in all manner of injuries For the goods of Princes are but few and those not so easily taken as those of private mens which are many wherefore it is reckoned by Justinian amongst those Laws which custome had found requisite to be constituted for the relief of humane necessity Neither will this be found so repugnant to nature that it might not be introduced by custom and by the tacite consent of Nations seeing that Sureties do stand firmly bound for other mens debts without any other cause than by their voluntary susception only And very probable it is that the Members of any one Society may more easily be relieved one by another than Strangers can whose complaints though never so just are little regarded in many places Besides the benefit that ariseth from this obligation being common to all Nations they that find themselves aggrieved by it at one time may be relieved by it some other Nor is this custom in force only where there is a perfect and compleat War between Nation and Nation For what is lawful in such Wars appears by the very words of their denunciation Against the ancient Latine People Liv. lib. 1. and against the men of Old Latium I denounce and make war saith the Roman Herauld in Livy So likewise when the Heraulds demand the peoples consent they say Is it your will and pleasure that War be forthwith denounced against King Philip and his Macedonians and against all that are under his Government So also in the Decree it self The Roman people do proclaim War against the Hermundulian people and against the
It is one and the same God that sets up one and pulls down another and that transfers Crowns and Scepters from one Nation to another People and that rules the People by whom he pleaseth Now to such as judicially peruse the Writings of the Prophets they will appear most evident for they do not only foretel the Counsels of God but the very Kings and Princes by whom God intends to bring about his secret purposes are therein described yea and sometimes named long before they were born as Josias by name 1 Kin. 13.2 Cyrus by name Es 45.3 Which plainly argues that God doth not only foresee what will come to pass but pre-ordains such and such persons by whom he intends to effect his purposes yea and fits them with habits and graces accordingly he makes use of that supereminent power that he hath over the lives of every of his Creatures whereby to punish those Kings by taking away their Subjects it being the proper punishment of Kings to be thus weakned * The proper punishment of Kings is to be deprived of their Subjects IX Mutual Subjection refuted Others there are that seem to fansie to themselves mutual subjection as in case the King shall govern well then the whole body of people should obey but in case he govern ill then he ought to be subject unto the people Now if what they say do amount to no more than this That our obedience to Kings binds us not to do any thing that is manifestly wicked they say no more than what all sober men will grant Yet doth not this imply any compulsion or any right of Empire that is in the people But in case they had a purpose to divide the Government with the King whereof we shall have occasion hereafter to speak somewhat they ought to assign bounds and limits to the power of either party which may easily be done by making distinction of either Places Persons or Affairs But the well or ill management especially of Civil Affairs being apt to admit of great debates are not so sit to distinguish the parts for great confusions must necessarily arise where the right of power is to be judged of by the pretensions of good or evil acts some judging of these Acts in favour to the King others in savour to the people which confusion no people that I as yet know were ever so imprudent as to introduce X. Cautions in judging of the Supreme Power These errors being thus refuted It remains that we set down some Cautions which may guide us to give a right judgment to whom in every Nation the Supreme Power belongeth whereof the first is this That we suffer not our selves to be deceived by such names as are ambiguous in sence nor with the shew of outward things As for example Although amongst the Latins a Kingdom and a Principality are usually opposites as when Caesar said the Father of Vercingetorigis having got the principality of Gallia Kingdoms and Principalities promiscuously used was slain for his affecting the Kingdom And when Piso in Tacitus said that Germanicus was indeed the Son of a Prince of the Romans but not of the King of the Parthians And when Suetonius said that Caligula wanted but a little of changing his Principality into a Kingdom yet we find these Titles of times promiscuously used For both the Lacedaemonian Generals who derived themselves from Hercules Lib. 1. though afterwards they were subjected to the Ephori yet were still called Kings And some ancient Kings of Germany there were as Tacitus relates who Reigned magis suadendi quam jubendi potestate more by perswasions than by power And as Livy speaks of King Evander Lib. 15. that he governed rather as a prudent Magistrate than as a King Thus Solinus calls Hanno the King of the Carthaginians And he that wrote the Life of Hannibal saith That as the Romans chose every year two Consuls so the Carthaginians chose two Kings meaning their Suffetes or Judges Among these Kings improperly so called we may likewise reckon their Sons whom their Fathers were pleased to honour with the Title of Kings though they reserved unto themselves the Regal Power Such was that Darius whom his Father Artaxerxes commanded to be killed being first condemned for plotting his Fathers death as Plutarch relates the Story So on the contrary The Roman Emperors Plut. Aâ—taxâ— ad finâ—m after they had openly assumed unto themselves Regal Power contented themselves with the Names and titles of Generals or Princes Nay the Ensigns of Regal Power are in some Free Cities usually given to Princes But now the assembly of States that is of those that represent the whole body of the people digested as Gunther speaks into three orders namely Parliaments why called Prelates Nobles and the principal Burgesses of Cities do in some places indeed serve to this end only to be the Kings Greater Council whereby the grievances of the people which are oft-times concealed by his Privy Council may come to the Kings knowledge who have also power to determine them as it shall seem good unto them according to Custome But in other places they have power to call into question the Actions of the Prince and also to prescribe Laws which shall be binding even to the Prince himself There are many also that place the difference between the Supreme and the Lesser Powers in the translation of the Empire by Election or Succession Attributing the Supreme Power to this latter but not unto the former But this holds not universally true For Succession assigns not the Form of Government but the Continuation of a Form in the same Family For the right which began in the Election of such a Family is by Succession continued Among the Lacedaemonians the Kingdom even after the Ephori were constituted was hereditary And of such a Kingdom or Principality it is that Aristotle speaks where he saith That some pass by the right of Blood and some by Election And such in the time of the Ancient Heroes were most of the Kingdoms of Greece I mean successive as both Aristotle and Thucydides observed so doth Dionysius Halicarnassensis Whereas on the contrary the Roman Empire even after all power was taken as well from the Senate as people was always transferr'd by Election XI The Second Caution A Second Caution shall be this It is one thing to enquire concerning the thing and another to enquire concerning the manner of holding it which holds good not in things Corporeal only but in things Incorporeal For as a Field is a Thing so also is a Passage The thing it self distinguisht from the manner of holding it an Act or Way But these some may have by a full right of propriety others by a right usufructuary as a Farmer hath a right to his Farm and some others by a Temporary Right As the Roman Dictator the Soveraignty but by a Temporary Right So Kings as well those that are first Elected as
sold or bequeathed by Testaments than Kingdoms are XV. This appears by the assigning Tutors and Protectors in Kingdoms There is also another mâ—rk whereby this distinction may be seen namely in the Tutâ—lage or Protection of Kiâ—â—â—oms when Kings and Princes are hindered or disabled either by some disease or thâ—â—â—gh old age or the like from performing their duty For where the Kingdom is not Pâ—trimonial the Protectorship is theirs to whom the publick Laws or if they are silent the people shall consign it But if the Kingdom be Patrimonial then to them whom the Father or the nearest of kin shall chuse Thus did Ptolomy King of Aegypt appoint by his Testament the people of Rome as Guardians to his Son who to perform that trust sent M. Aemilius Lepidus who was their Chief Priest Val. Mar. lib. 6. Tit. 6. c. 1. and had been twice Consul unto Alexandria to take care of the Government and of the Childs Education By whose care not only the Kingdom was preserved but the Child in his youth so well disciplin'd that it was hard to judge whether he received more glory by his Fathers great fortunes or by the Majesty of his Guardian So we read that in the Kingdom of Epirus which first depended on the suffrages of the people Tutors were publickly assigned unto their young King Ariba The like was done by the Nobility of Macedon to the Posthumous son of the Great Alexander But in Asia the Lesser which was gained by the Sword King Eumenes dying appointed his Brother Protector to his young son Attalus So did Hiero King of Sicily by his Testament constitute unto his son Hieronymus what Tutors he pleased But whether the King be also in his own private right Lord of the soil as the Kings of Aegypt were after the times of Joseph or as the Kings of the Inâ—ians were as Diodorus and Strabo testifie or whether they are not it makes no diffeâ—ence For these are extrinsick to the Empire and therefore can neither constitute another kind of Government nor alter any thing as to the manner of holding it XVI Soveraignty not lost by any promise made of any things which belong not to either the Law of God or Nature The Third observation shall be this That an Empire ceaseth not to be supreme though he that is to govern do by promise oblige himself either to his Subjects or to God unto such things as do properly appertain unto his manner of Government I mean not hâ—re such things as appertain to the Laws of God Nature or Nations For unto these every Prince stands obliged though he promise not But I mean though he do promise to confine his own power within certain Laws and Rules whereunto nothing can bind him but his oath or promise The Emperour Trajan did solemnly imprecate vengeance on his own head and right hand in case he knowingly failed in what he had promised And the Emperour Adrian sware that ye would never punish a Senator without a decree of the Senate Anastasius bound himself by oath to observe the decrees of the Synod of Chalcedon And all the Greek Emperours did likewise oblige themselves to observe the Canons and Constitutions of the Church But by none of these Oaths or Promises doth the Power of an Emperour cease to be supreme This may clearly be illustrated by comparing the power of a King with that of a Master in his own Family For although a Master do promise to observe such orders as he conceives to be most conducing to the welfare of it yet doth he not thereby cease to be supreme in his own Family Nor doth a husband cease to have power over his wife though he have obliged himself to the contrary by some promises that he hath made to her yet I must acknowledge that where such Oaths and Promises are made the soveraignty is thereby somewhat straitened whether the obligation do only restrain the exercise of the Act as that of Adrian's above-mentioned or the very power it self If it restrain the exercise only then the act that is done contrary to promise is sâ—id to be unjust because as we shall shew anon every promise gives a right to him to whom it was made But if it restrain the faculty it self then the Act will be void for wâ—nt of a Right or Faculty to do it And yet will it not necessarily follow that he thâ—â—â—â—us promiseth hath any power superiour to himself for his Act is not made void by any power above him but by very right Among the Persians no man can say but that their Kings were supreme and absolute in power and not liable to give an account as Plutarch testifies Nay their Kings were adored as Gods own Image and as Justin tells us were never changed but by Death He was a King indeed that said to the Nobles of Persia Ne viderer meo tantummodo usus consilio vos contraxi caeterum mementote parendum vobis magis quam suadendum Val. Max. lib. 9. c. 5. Lest I should be thought to govern by mine own counsels only I have called you together but otherwise remember that it is your duty rather to obey than to perswade And yet did this very King at his Coronation swear not to alter the Laws of that Kingdom made after such a form as both Xenophon and Diodorus testifie and as the Histories of Daniel and Plutarch in the life of Themistocles inform us Ch. 6 8 13 15. Pers l. 1. So Josephus tells us That Vashti could not be reconciled to the King because the Royal Decree was gone out which could not be broken And long after them Procopius confirms as much where we may read a notable example to this purpose The very same doth Diodorus Siculus relate of the Kings of Aethiopia and Aegypt who without doubt as all other Eastern Kings had in their respective Kingdoms absolute Power and yet were they all at their admission obliged to many things by Oaths or Promises Which if they performed not though whilest they lived they could not be questioned yet being dead their memories might be accused and being condemned their carcâ—sses might be denyed solemn Funeral This Apion records Civiliam 3. Leges Tyrannorum Corpora insepulta extra fines projici jubent The Laws saith he command the bodies of Tyrants to be cast out of their Territories unburied In obedience to the like Law the Emperour Andronicus deprived his own Father Michael of Christian Burial Gregoras l. 6. because he followed the Faith of the Latin Churches And such another Law there seemed to be amongst the Hebrews who would not permit the dead bodies of their wicked Kings to be interr'd among their good Kings The like we may find in Josephus concerning the two Jorams 2 Chr. 24.25 Ch. 28. 27. Jos Art l. 8. c. 3.5 the one King of Juda the other King of Israel By which excellent temperament of reverence and justice they both preserved the Majesty of
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be
an Intestate to whom it naturally descends Dominion being once introduced that which naturally guides the Succession to the estate of a person dying intestate setting aside the Civil Law is our conjecture at the Will of the deceased For seeing that the force of Dominion is such that it may be transferred at the will of the right owner unto another Therefore in case a man dyes possest of an estate leaving nothing to testifie his mind after his death because it is not credible that he would leave it to him that could next catch it therefore shall it succeed to him to whom it is probable he would have left it had he lived to have declared it Defunctorum voluntatem intellexisse pro jure est saith Pliny Junior To have understood the Will of the deceased is sufficient to create a Right Now to the dead this favour is indulged That in cases that are doubtful it is presumed That every man would do that which is most just and honest whereof in the first place is the payment of his just debts and in the next that which though not due yet is most agreeable to our duty And therefore what is committed to a mans trust may be restored saith Paulus the person dying Intestate that trusted it to those that succeed him because it may be believed That his Will was freely to leave the lawful Inheritance unto them IV. Whether Parents do owe unto their Children any part of their goods It is much controverted by Lawyers Whether Parents may be said to owe their children Aliment Some of them hold it to be agreeable to Natural Reason but deny it to be a Debt But we think it fit here to distinguish of the word Debt which may be taken either strictly for that which by Commutative Justice we are obliged to do or largely for that which cannot with honour or honesty be left undone as being a duty arising from another spring but not from that of Justice First Reason Now Aliment is due to Children if Humane Laws do not otherwise determine of it in this looser sense In which I conceive that of Val. Maximus is to be understood Our Parents by nourishing us hâ—ve laid this obligation upon us to nourish our Children And that also of Plutarch in that most elegant Oration of his concerning the Love of Parents towards their Children Liberi haereditatem ut sibi debitam expectant Our Children look for our estates as due unto them after our death So great was the Equity of this Lib. 2. de vita cler ser 52. ad frat in eremo Gratian. c. 13. q. 2. c. 17. q. 4. in fine Pers l. 1. Second Reason That St. Augustine would not admit that the goods of such as had exheredated their own Children should be received by the Church And as Procopius in his Persian Wars observes Though Humane Laws do in other things extreamly differ one from another yet all Nations as well Romans as Barbarians in this agree That Children should succeed to their Parents as the right owners of what they leave Again Qui formam dat dat quae ad formam sunt necessaria He that gives the form gives things necessary to that form saith Aristotle Therefore he that gives man his existence ought as much as in him lies to provide for him all things necessary for a Natural and Social life for hereunto he was born There needs no Law to bind us to this duty for all other creatures even by Natures instinct do feed their young As Pliny observes of Swallows That with great equity they feed their little ones by turns Summa aequitate alternant cibum Hence it is that the Ancient Civilians do refer the Education of Children to the Law of Nature And Euripides comprehends all Creatures under one and the same Law Which saith he is common as well to men among themselves as to them with all other sensible Creatures For that which Natural Instinct commends to them the same doth Reason prescribe unto us Of such force is Natural affection that it easily perswades us to nourish our Children saith Justinian Nature is an Indulgent Mistress to all living creatures equally instructing them how to conserve not only themselves but those that are born of them that so by this successive Charity she may aspire to make her self immortal Quintilian brings in the Son claiming a Portion of his Fathers Estate by the Law of Nations Partem jure gentium pâ—to And Salust condemns that Testament as impious and unnatural by which the Son is excluded from his part of the Inheritance And because this is a debt that we owe to Nature therefore is the Mother bound to nourish the Child that hath no certain Father The Roman Laws made no provision for Bastards And though the Roman Laws made no provision for Children ex damnato legibus Concubitu that were illegitimate and that by Solons Laws it was provided That no man should leave any thing to his Natural Issue yet do the Canons of our Religion correct the severity of these Laws by teaching us That our Children however begotten by us should be a part of our care and that in case it be needful Beyond necessaries no man bound to provide for them we ought to leave them enough to preserve that life which we gave them but beyond necessaries is no man bound by the Law of Nature to provide for them Neither are we bound to nourish our Sons only but those also that proceed from them yea even to the third generation according to Justinian and that for humanity sake Neither should our Charity rest here but it should extend it self even unto those who issue out of our Loins and are born unto us by strange women if they cannot otherwise be maintained V. In Succession the Children of the deceased are to be preferred before their Parents and why Children ought also to nourish their Parents not only in obedience to many wholsome Laws but in common gratitude like the Storks who when their Parents are spent with age feed them and being faint receive them on their backs and carry them from place to place And therefore in fostering those who when we were Children fostered us we are Proverbially said To imitate the Stork †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Reverence to Parents and sustenance to Children Nic. 8. Solon is highly commended for setting a brand of infamy upon those that did it not Yet is not this so ordinary as that which we have said of Children Because Children when they are born bring nothing into the world with them whereby to live and have probably a longer time to live here than their Parents have And as honour and obedience is properly due to Parents and not to Children So is Sustentation due rather to Children than to Parents And thus is Lucian to be understood when he tells us That it is more agreeable to the dictates of Nature for
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
Succession Another Question is this Whether a King may so abdicate his Kingdom as to deprive his Son of his Right to succeed which is resolved by the same distinction For in Kingdoms meerly hereditary he that renounceth his Kingdom cannot transfer it to his Son But in lineal descents the Fathers act cannot null his Sons Right that is born For as soon as the children begin to exist the law makes provision for them yea and for those that are to be born so because that right which by the peoples consent is entailed upon them must in due time descend upon them Neither doth that which I have already said concerning transmission contradict this For that transmission is Necessary as to the Parents and not Voluntary But yet a difference there is between those Children that are born before the Renunciation and those born after For they that are already born have by the Law a full Right to the Kingdom though they that are not permitted to enjoy that Right during the life of their Parent but to those not born there cannot as yet be any Right acquired and therefore it may be taken away by the will of the people if the Parents also to whom it belongs to transfer that Right unto them be willing to release it And to this purpose is that we have already said concerning dereliction XXVII Whether the King or the People only have a Right to judge of the Succession Another Question doth sometimes arise namely who shall be judge of the Right of Succession to a Kingdom Whethet the King then reigning or the people by themselves or by such Judges as they shall appoint If the Question be put of such a Judgement as is Authoritative neither of them have any Right to judge For Jurisdiction there cannot be but in a superiour who should have respect not barely to the person but to the matter also which is to be poised with its due circumstances But the case of Succession is not properly under the jurisdiction of the present King because he cannot of himself by any Law bind his Successor For the Succession to the Empire lies not under the jurisdiction of the Empire but remains in the state of Nature wherein there was no jurisdiction at all But yet notwithstanding if the Right of Succession be controverted the pretenders unto it will do very piously and justly if they can agree between themselves upon some indifferent persons to whose arbitrement they can be contented to refer themselves whereof we shall discourse hereafter But the people have transferred all their Jurisdiction from themselves into the King and the Royal Family during which they cannot challenge to themselves any reliques of it This I mean of a true Kingdom and not of every Principality But yet if in the discussing of this Right any question do arise concerning the primary will and intention of the people at the first institution of the Kingdom it were not amiss to take the advice of the people in present that is of all the three States I mean of the Nobles Clergy and Commons in Parliament assembled as is usual in England and Scotland as Camden testifies in his History of Queen Elizabeth 1571 1572. For the people in present may be judged to be the same they anciently were Or by Delegates purposely chosen as in the Kingdom of Arragon unless it do sufficiently appear That the people then were clearly of another will and that thereupon the Right of Empire was obtained Plut. de fratrum amore Paus lib. 4. Justin lib. 2. Thus did King Euphaes suffer the Messenians diligently to enquire which of the Royal stock of the Aepytidae had most Right to the Kingdom But the contest between Xerxes and Artabazanes was determined by their Uncle Artaphernes to whom it was amicably referr'd as to a Domestick Judge XXVIII The Son born before his Father was King to be preferred before him that was postnate But let us proceed to other cases It hath been often controverted which of the two Sons hath the best Right to the Succession He that was born before the Father gained the Kingdom or he that was born after Whereunto the most Rational Answer is That he that was first born shall first succeed if the Kingdom be indivisible which holds true in every kind of Succession Yet did Henry the First youngest Brother to Rufus assume the Crown of England whilest his elder Brother Robert was in the Holy Land upon this pretence That he was born to his Father after he was Crowned King of England whereas his Brother Robert was born whilest his Father was Duke of Normandy only yet was Henry justly branded as an Usurper of his Brothers Right by Mat. Parisiensis But in case the Kingdom be divisible without doubt the latter shall have his share as well in this as in other goods concerning which it matters not when they were got Now if he that of a divisible Estate may have his share and in that which is indivisible is preferred by the priviledge of his birth Surely even the Inheritance must follow that Son which was born before his Fathers first Investiture But even in a Lineal Succession a Kingdom is no sooner got but the Children which are antenate do immediately conceive an hopes of Succession For admit that there are none born after surely no man will say That those before born are to be excluded But in this kind of Succession an hope once conceived begets a Right Neither doth it by any post fact determine unless it be in a Cognatical Succession where it may be for a while suspended by reason of the priviledge of Sex Thus was the case decided in Persia between Cyrus and Artaxerxes in Judaea between Antipater the Son of Herod the Great and his Brethren In Hungary when Geissa began his reign and in Germany though not without Blood between Otto the first Mariana l. 24. and Henry and in Turky between Bajazet the antenate and Gemes the postnate to the Empire And though haply it may be true that the choice of the Kings of Persia did much depend upon the suffrages of the people yet were those suffrages always limited to the Royal Family Lib. 23. For thus much doth Mariana testifie of the Arsacidae who being Parthians reigned in Persia And the like doth Zonaras in Justin of those Persians that succeeded those Parthians XXIX Unless otherwise provided by some Law But that it was otherwise in Sparta we attribute to the Laws proper to them only which gave the Sons that were postnate the Preheminence for their more Heroick Education The like may also happen by some peculiar Law made upon the first Investiture If a Soveraign Lord shall give unto his Vassal and to those that shall be born of him an Empire to be held of him in Fee upon the strength of which Argument Lewis in the contest that arose between him and his Brother Galeatius for the Dutchy of Millain did
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
suum cuique ita tribuit ut non distrahatur ab ullius personae justiore repetitione And this I approve of to be Justice which so gives to every man his own that it be not withheld from the juster claim of any other person that hath a right unto it Now his must needs be the juster title that claims by a right as ancient as propriety it self Whence it likewise follows That he that ignorantly accepts of that from another in trust which afterwards he knows to be his own cannot be bound to restore it And the case which the same Tryphoninus puts concerning Goods deposited by him whose whole Estate was before confiscate is better determined by this rule than by that which he there produceth concerning the profits gained by punishments For if we look strictly to the nature of the propriety it matters not whether it arise from the Law of Nations or from the Civil Law for either way it carries with it all things natural unto it self whereof this is one That every person being possest of another mans goods is bound to make restitution thereof to the right Owner And this is the meaning of Martianus where he tells us Res condici possunt ab iis qui non ex justa causa possident that Goods may by personal actions at Law be required from those who without any just cause are possest of them And from hence also springs that in Vlpian He that finds what is anothers is so strictly bound to restore it that he cannot so much as require a reward for the finding of it but he is to restore it with its fruits if any be saving only to himself his reasonable charges II. Of the profit of what belongs to another Of things not extant the Law of Nations runs thus That if another be enriched by what is mine I not enjoying mine own he stands obliged to restore to me so much as he is made the richer by what is mine Because as to that which he hath gained by what is mine he hath the more and I for want of what is mine own have the less by so much as he hath gained For dominion was therefore generally agreed on that every man according to his proportion should enjoy his own Contra naturam est Cicero Off. 3. ex hominis Incommodo suum augere Commodum For one man to enrich himself by that which is another mans loss is unnatural saith Cicero And in another place That we should build up our own Power Fortunes or Wealth upon the ruine of other mens nature it self will not permit There is so much of natural reason in this saying that the Lawyers are enforced to decline the prescript Rules of their Laws and to determine many Cases by this of equity as being the most convincing A Contract made by a Servant being a Factor shall bind his Master unless Proclamation be first made that no credit shall be given unto him But yet although such Proclamation be made if that Servant makes any profit thereby either to himself or puts it to his Masters account it shall be judged a Fraud Videtur enim dolum malum facere qui ex aliena jactura lucrum quaerat For he seems to deal deceitfully that makes himself rich by another mans loss Where the words Dolus malus signifie whatsoever is repugnant to natural right and equity If a Wife shall give unto her Husband money which by the Law she may require of him again the Wife shall have either a personal Action against her Husband or shall relieve her self by that which was bought with her money Because it cannot be denyed but that the Husband is made the richer by it and therefore enquiry shall be made what he possesseth that was bought with her money So again if thou hast spent or otherwise disposed of money which my Servant hath stoln from me conceiving it to be his I have a good Action against thee for this reason because my Goods came into thy possession without any just cause Pupils according to the Roman Laws are not bound to pay what they borrow yet if it appear that they are the richer by what they borrowed an Action shall lye against them So likewise if thou contractest with my debtor not as mine but supposing him to be another mans and borrowest my money of him Thou standest bound to pay me not because I trusted thee with my money which could not be without mutual Consent but because my money coming into thy possession it is both just and righteous that thou shouldst restore it to me as to the right Owner Our modern Lawyers do prudently judge of other the like Cases by these as namely that he whose Goods whilst he lay concealed had been sold when he might have had an exception should be admitted to receive the money that was raised by the sale of them And that he that accommodates the Father with money for his Sons maintenance if the Father be not able to discharge the debt should have his Action against the Son if he enjoy any Goods that were his Mothers These two Rules being throughly understood may guide us to give satisfaction in such Cases of Conscience as are usually by as well Lawyers as Divines proposed III. He that useth anothers thinking it his own not bound to restore if the thing perish For in the first place it hence appears That he that is possest of what is anothers yet thinks it to be his own is not bound to make any restitution if the thing it self so possest do perish because he hath neither the thing it self nor any gains by it But he that knowingly possesseth what is anothers is bound not only by reason of the thing it self but for his fact in detaining it IV. Yet is he bound to restore the fruits in being if any be Secondly He that through Ignorance possesseth anothers right is bound to restore not only the thing but the fruits of the thing that are extant The fruits I say of the thing but not the fruits of his own labours For though without the thing those fruits could not be perceived yet are they not due to the thing it self which without his labour could not have produced them Now the ground of this obligation ariseth from propriety for he that is the Owner of the thing is naturally the Owner of the Fruits arising from the thing V. Yea and those that are consumed unless otherwise he had not spent them Thirdly He that unknowingly possesseth another mans Goods is bound to make restitution both of the thing and of the fruits that are spent if it appear that he must otherwise have spent as much of what was his own because he is by that so much the richer This Suetonius highly commends in Caligula That those whom he restored to their Kingdoms he likewise restored to the Fruits and Profits of them for half the time they stood exiled VI. But not for those which he
extend the Obligation is not rashly to be admitted But with much more caution than in the case before mentioned where we admit of words in their largest signification though not much in use For here we raise our conjectures without regard had to the words promising which cannot introduce an obligation unless the Conjectures be very certain for here a parity of Reason is not sufficient unless it be the very same Neither is the same Reason at all times sufficient because as I said before Reason doth often so move us that to shew our own freedome our will is of it self a sufficient cause of our Promises without any other Reason Now to justifie such an extended conjecture beyond the words of the Promise it is necessary that it should plainly appear That the Reason under which that case which we would comprehend falls was the only and most efficacious cause which moved the Promiser and that that Reason was in its generality so considered by him because otherwise the Promise would prove either unjust or unprofitable As for Example An agreement that such a place should not be surrounded with walls being made at such a time when no other Fortifications were in use should doubtless extend to all Muniments though but of Earth in case it do appear that the only reason why Walls were prohibited was That that place should not be fortified Another Example is usually brought of a man who believing his Wife to be with Child disposeth his Estate to such a man in case that Child should dye which by all probable conjectures should be extended to this sense Or if such a Child should not be born For certain it is That the Will of the Testator was moved with this only consideration That then he should have no Child of his own to inherit it This case we shall find not among the Lawyers only Lib. 1 2. de Orat. Bruto pâ—o Caecina but in Cicero and in Valerius Maximus Cicero in his Oration for Caecina pleads this case thus What Is this sufficiently provided for in words No. What then was of force to do it The Will Which if it could be understood by silence we should have no need of Words But because that cannot be therefore were words invented but such as should not hinder the Will but declare it And a little after in the same Oration he adds Idem jus esse ubi perspicitur una atque eadem causa aequitatis Where there manifestly appeared but one and the same cause of Equity i. e. where there was the same solitary cause moving It may be presumed there is also one and the same Right Thus Philo in his Special Laws proves that it is Adultery to lye with a woman that is betrothed to another and he adds this reason Quia idem valent sponsalia quod Nuptiae Because saith he such Espousals are equal to Marriages Exod. 21 28 35. So likewise in the Mosaical Law under the name of Oxen are all gentle Beasts comprehended so is every Pool or Pond under the name of a Well So likewise an Injunction though it run in this form Vnde me vi dejeceris hominibus coactis armatisve Whence thou hast thrust me out by force and arms takes place also against all manner of force that threatens our life and limbs For that which is usually done by armed men if by any other counsels or means we are brought into the same danger the Law affords us the same Right and Remedy Quintilian the Father in one of his Declamations brings in this Example Murther doth usually signifie the effusion of humane blood by the Sword But if a man be killed by any other means we have recourse to the same Law For if a man shall fall among Thieves or if he be thrown into a River and there drowned or if he be tumbled headlong from an high Precipice his death shall be revenged by the same Law as if he had been killed by the Sword The like Argument we find used by Isaeus concerning the Inheritance of Pyrrhus where because by the Laws of Athens a Father having no Son could not make his Testament if his Daughter were unwilling he infers that neither had he without her consent the power of adopting one XXI Whether a Command given for one thing be fulfilled in doing another as profitable if not more And from hence that famous Question in Gellius may easily be answered concerning a Command given by our Superiour Whether it may be fulfilled though not by the same yet by another thing equally profitable or haply more than that which was commanded Servants saith Quintilian act some things more freely out of a good mind and even our Slaves bought with our Money do sometimes think it an Argument of their Fidelity to do otherwise than they are commanded Which may be done if it appear That what was so particularly described but only under some general consideration which might also be otherwise obtained But if that do not sufficiently appear Lib. 1. c. 13. then we are to follow Gellius his advice in that place For the Authority of a General would quickly be contemned if what he commands should be disputed and not obeyed XXII Or restrained and that either by reason of some defect in the Will That Interpretation that restraineth the sence from what the signification of the words wherein the Promise is contained will bear is derived either from an originary defect of the Will or from the repugnancy of some emergent case with the Will The originary defect of the Will is understood either from some absurdity which would otherwise evidently ensue or from failing of the main Reason which alone did fully and effectually move the Will or from a defect of matter The first whereof is grounded upon this That no man is to be believed to will things that are absurd XXIII Or when the main Reason ceaseth The Second is grounded on this That what is contained in the Promise whereunto such a Reason is added or where it is plainly understood is not considered barely or simply but as it falls under that Reason XXIV Or when there is a defect in the matter The Third is grounded on this That the matter so restrained is always observed to be in the mind of him that promiseth although the words of the Promiser do admit of a large signification XXV An observation concerning the last recited Conjectures But as concerning the Reason that moves the Will we must observe That under it are comprehended not only things actually existing but sometimes things that morally considered may be which when it takes place no restriction ought to be admitted As when it is in any League provided That no Army or Fleet shall be sent to such a place they ought not to be led thither though there be no intention thereby to do harm because in that agreement not so much the present damage as all future dangers whatsoever are regarded
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
Grat. in causam 23. q. 3. St Augustine brings in Maximinianus Bishop of Vagia craving aid of the Christian Emperours against the Churches Enemies Non tam sui ulciscendi causa quam tuendae Ecclesiae sibi creditae Not to revenge his own wrongs but to defend the Church of Christ that was committed unto his care And indeed such a War should be undertaken more for the defence of the Innocent than to punish the Nocent L. But not against such as erre in the interpretation of the Divine Law But they that eagerly persecute those that profess the Christian Law only because they either doubt or haply erre in some particulars which either are not exprest in our Law or at least not so clearly but that it will admit of some ambiguity and which have been otherwise understood by the Primitive Christians are unjust as may appear partly by what we already said and partly by the example of the Ancient Jews whose Religion though strongly guarded with corporal punishments yet did never permit them to punish the Sadducees for rejecting the Doctrine of the Resurrection because though most true it was as yet but obscurely glanced at in their Law and not at all taught but covertly under types and figures But what if the Errors be such as amongst equall Judges may easily be confuted both by the authority of the Scriptures and by the common Testimony of the Fathers Yet even herein we must consider how great the strength is of an over-grown Opinion and how much a mans endeavour to defend his own Sect doth diminish the strength and liberty of his own judgment which as Galen saith is malum omni scabie insanabilius a disease more incurable than any Leprosie A man will sooner part with any thing than with his Opinion saith Origen So St Chrysostome In 1 ad Cor. c. 2. An Opinion that hath taken deep root through Custom is hardly to be removed for there is nothing that we alter with more unwillingness than our Customs in Religion Again how great the fault of him is that differs from us in Opinion must be judged by the manner and measure of his illumination and by other dispositions of his mind which is not possible for man to know St Chrysostome makes Ambition the mother of Heresie Ad Gal. 5. and St Augustine defines an Heretick to be one that either for Gain Vain-glory or Ambition doth either set up Lib. de utilitate credendi or at least follow false and New Opinions where he makes a great difference between him that is an Heretick and him that believes and follows an Heretick This is most apparent Grat. c. 24. q. 3. Ep. 162. Scrip. Respons ad Orthodoxos qu. 4. that all Heresies proceed from either the Ambition or Emulation of their first Inventers saith he that wrote the Answers to the Orthodox And therefore St Augustine calls it The frenzy of a mind obstinately bent or the heighth of madness And yet see with what sweetness and calmness of spirit the Fathers of the Primitive Church treated the Hereticks of their times Salvian speaks thus of the Arrians Hereticks they are but not knowingly to us they are Hereticks but to themselves they are not nay so confident they are that they are in the right That they brand us with that infamous name of Hereticks who are Catholicks What they are to us the same are we to them We are most assured that they dishonour the Son by making him inferiour to the Father and they as far condemn us for dishonouring the Father in making the Son equall unto him The Truth is on our side yet they presume it is with them both pretend to honour God to us they appear uncivil but that to them seems to be the chiefest Duty of their Religion to us they appear impious but this they esteem to be true piety they erre indeed in their faith but they do it in perfect love and charity to God and how far punishable this Errour of theirs now is or in the day of judgment will be none can tell but the Judge himself In the mean time God I believe doth therefore forbear them because he sees that though they do erre in their faith yet this errour proceeds from no other root but from the affection to a pious Opinion And indeed such are not to be judged Hereticks by us who do bono animo errare erre through an ignorant zeal Miseratione quà m odio digniores they deserve rather our pity than our hatred as Agathias speaks of the superstitious Almans For they do not go astray nor stumble willingly and knowingly they have without doubt pious intentions but being deceived in their judgments whatsoever they rashly apprehend for truth they hold obstinately Now in what measure saith Chrysostome Hom. contr Anathematizantes such errours are to be punished he only can without danger judge who is the Judge of Ages or the Eternal Judge who alone knows both the true measure of knowledge and the proportion of Faith Concerning the Manichees let us hear what St Augustine saith who was himself once one of them Let them rage against you saith he who are ignorant with what labour and sweat a man finds out the truth which is but one and how difficult it is to decline errours which are infinite Let them rage against you who know not how rare and hard a matter it is to overcome all carnal conceits by the serenity of a pure mind Let them rage against you that apprehend not with what difficulty the eye of our inward man is so strengthned as to be able to behold the beauty and splendor of its own Sun Let them rage against you who have not experimentally learned how many sighs and groans it will cost before a man can attain to the knowledge of God in the least degree Lastly let them rage against you who can presume that they are without errours themselves As for me I neither can nor dare for I ought to bear with you now as others did formerly with me and to treat you with as much patience meekness and gentleness as they did me when I was blindly carried away with your errours Athanasius bitterly inveighs against the Arrian Hereticks because they were the first that called in the Civil Power to their assistance against their Antagonist and that endeavoured by force stripes and imprisonments to draw such unto themselves whom they could not win by the strength of arguments Thereby plainly declaring how little of piety and true devotion there was amongst the Professors of that Doctrine alluding haply to that of St Paul Gal. 4.29 where it is said That as then he that was born of the flesh persecuted him that was born of the spirit even so now Nova inaudita est ista praedicatio quae verberibus exigit fidem Grat. c. 23. q. 4. qui secund It is a new and unheard of manner of preaching to enforce Faith by
Samians after three ages Injuries done should not be revenged but on those that did them From all which we may conclude That the memory of injuries done us ought not to outlive the persons that did them neither will those arguments brought by Plutarch in defence of the revenge taken by God upon Posterity for the sins of their Ancestors serve to justify the like in men because there is not the same right between man and man as there is between God and man neither will it necessarily follow that because our Children do receive honours and rewards for the vertuous acts of their forefathers therefore they may be justly punished for their faults because such is the nature of a courtesie or benefit that it may be conferred upon any man without injury but the nature of a punishment is not so IX Whether a man may partake of the punishment tho' not of the crime Thus having shewed by what means a man may partake of the punishment by being made accessary to the sin of another now we intend to shew how a man may be involved in the punishment though he be no ways accessary to his sin And here to avoid mistake and that we may not confound things in their own nature distinct because they are alike in name we must walk cautiously as to some particulars X. That which comes directly distinguisht from that which comes by consequence As in the first place we must distinguish between that damage that is purposely and directly done and that which comes by consequence that I account a wrong directly done when that is taken away whereunto a man hath a peculiar right And that I call a wrong done by consequence when a man is deprived of that which otherwise he might have had that condition ceasing without which he could have no right or title An example whereof Vlpian gives us thus If by digging a Well in my own ground I cut off or intercept the spring that feeds my neighbours Well the damage he sustaineth is not occasioned directly by any illegal act of mine but by the lawful use of that wherein I had a proper and peculiar right as being mine own And in another place There is a great difference between the doing of an injury and the prohibiting a man to make the profit which he hath hitherto been permitted to make And it is very preposterous saith Paulus the Lawyer to account our selves rich before we have acquired those riches As when a Father runneth into a praemunire by doing that for which his estate is justly confiscate his Children may feel the loss 't is true but the loss is not properly their punishment because the goods could not properly be accounted theirs unless they had continued to have been their Fathers to the hour of his death which was well observed by Alphenus when he said The Children indeed do suffer through the default of their Father but that they do not inherit that which should otherwise have descended unto them is not properly the Childrens punishment but their Parents But those goods which accrew unto them not from their Parents but either from nature custom or education do notwithstanding their Fathers fault remain perfectly theirs Cicero writes that Themistocles his Children suffered want nor did he think it unjust that Lepidus his Children should do the like and this he affirms to be an ancient custom and observed in all Cities which notwithstanding the later Roman Laws have somewhat moderated So when through the default of the major part which as we have said before represents and hath the power of the whole the whole offends and upon that account loseth their civil liberty i. e. their Walls Ports and other Commodities those particular persons who were innocent do indeed bear an equal share in the loss but yet in those things only which appertained not unto them but as they were a part of the whole XI What befals us by the occasion of a crime distinguisht from that which befals us because of the crime Besides it is to be noted that sometimes some evil is to be imposed on a man or some good taken from him by the occasion of anothers sin yet so that that sin is not the immediate cause of that action as to the very Right of doing it as he that passeth his word for the debt of another suffers not by reason of the debt but by reason of his ingagement according to our Proverb A Surety is a sure tye For as he that passeth his word for a buyer is not bound by the purchase but by his own free promise So he that undertakes for a delinquent may suffer Sponde noxa praesto est not for his delinquency but by reason of his vadimony or susception which as it was in his own free power to do or not to do so being done it shall no less oblige him than the offence did the delinquent Now the ground of this is the power and freedom that every man hath to oblige himself and therefore the measure of his sufferings is not to be taken from the hainousness of anothers fault but from the power he hath to oblige himself The consequence whereof is That no man can justly be put to death by being a surety for another whose crime may happily deserve death because no man can justly oblige himself beyond what is in his power but this power over a mans life either to take it away from himself or to oblige another to take it away from him no man hath and therefore no man can justly be put to death by reason of such a vademony And this I hold to be the truer opinion though it seems that not the ancient Romans only but the Grecians and Hebrews also were of another mind who believed that even the sureties also might justly be adjudged to death as appears by that ancient story of Damon and Pythias And by those words of Reuben to his Father Jacob Jos Ant. lib. 2. cap. 3. Slay my two sons if I bring him not back unto thee * Gen. 42.37 whereunto St Augustine †Ep. 54. ad Macedonium See lib. 3. c. 4. §. 14. alludes where he saith That he that is the cause of anothers death is sometimes a greater sinner than he that kills him As when a malefactor leaves his surety to suffer that lawful punishment which himself should undergo as it falls out frequently with hostages as we shall shew anon Neither doth this power of obliging a mans self extend to mutilation for no man hath such a power over his bodily members as to cut them off unless it be for the conservation of the whole body But whatsoever any man hath a full and absolute power over he may engage for another and if he suffer thereby it is not by way of punishment but by way of equity which requires that what is promised should be performed Thus a man may forfeit his estate his liberty his goods
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
not so much to consider whether we have been justly provoked or no as whether the injuries we have sustained be such as will counterballance the expence of so much blood and treasure as will be expended in the prosecution of a War for satisfaction II. Especially when undertaken for punishment only There are many arguments whereby we may be disswaded from exacting punishments For first we see how many failings Parents are willing to wink at in their Children A Father saith Seneca * Sen. de clem l. 1. c. 14. unless highly provoked by many and those hainous offences so that his fears swell higher than his just anger will not proceed against his Son with the utmost rigour and severity Augustus sitting in Council with a Father concerning a punishment to be inflicted on his Son being found guilty of an intended Parricide would not adjudge him to the Sack the Serpent or to Prison but to banishment only whither his Father pleased respecting not so much the person offending as the person offended as knowing that gentle punishments would best appease the wrath of a Father towards his own son Pro peccato magno paullulum supplicii satis est patri Few stripes for great faults Parents will appease Fathers saith Philo do sometimes pass that sentence of exheredation on their own sons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby cutting them off from their own families and kindred but never untill they grow shamelesly and incorrigibly wicked and that their hatred of their Childrens Vices have quite overcome that great and unparallell'd Love which Nature had at first imprinted in them Not much different is that of Phinehas in Diodorus No Father doth willingly punish his Sons Lib. 5. unless the measure of their wickedness do very much exceed the measure of his natural affection Nor that of Andronicus Rhodius No Father can be so unnatural as to cast of his Son if he be not extremely wicked Now whosoever undertakes to punish another assumes unto himself in a manner the person and office of a Governour that is of a Father whereunto St. Augustine alludes when he thus bespake Marcellinus Perform O thou Christian Judge the office of a pious Father who always prefers pardon before punishment Ep. 87. A merciful man saith Seneca is as unwilling to spill another mans blood as he is to spill his own knowing that nature in every man is equally solicitous to preserve its being And therefore It befits men Diod Sic. in fragm who are linkt together by the bands of Consanguinity to be as sparing of other mens lives as of their own for not every man that offends is to be punished but they only that persist in their sins without repentance Let all men that are strangers to our faith saith Chrysostome know that the reverence which we bear unto Christ is so great that it restrains all earthly powers Servants are taught to honour their Masters and Masters to forgive their fellow Servants De Statâ—is l. â— that so our Great Lord and Master may be propitious unto us in that Great Day of Judgment It is usual in Scripture where mention is made of sins and punishments to allay one word with another and to a word that is likely to heighten our anger to add another that may serve to qualifie it If a man shall commit a trespass against his neighbour saith Moses which two words saith St. Augustine a man and a sinner are not conjoined without a Mystery but for this end Aug. citat à Gratian. causa 23. q. 4. Quia peccatur corripe quia homo miserere that if the sinner do exasperate us the word man should presently becalm us for as he is a sinner he deserves punishment but as he is a man he deserves to be pittied So in the new Law thou beholdest a mote in thy Brothers eye Matt. 7.13 A mote that offends us no less than it doth our Brother and our zeal is quickly inflamed to pull it out but when we consider that it is in the eye Vide supra c. 20. §. 12 26 36 and which is more in our Brothers eye then we go warily about it lest whilst we endeavour to pull out the mote we put out our Brothers eye So in another place If thy Brother offend thee Luk. 17.3 the offence provokes us presently to passion but when we consider that he who gives it is Frater our Brother that is quasi fere alter One cast in the same mold with us and scarcely divided from our selves this should instantly appease our swelling passion so that though angry we may be yet revenge we must not The Emperour Julian applauded that saying of Pittacus which prefered pardon before punishments Orat pro Antioch But whosoever will imitate his heavenly Father saith Libanius must glory more in forgiving than in punishing for in nothing do we draw nearer to the Divine Nature saith Cicero than in giving life to them who have deserved death Again such cases there may happen wherein to abstain from claiming our Right is not so much a courtesie as a debt in regard of that love which we owe unto all men though Enemies whether considered in it self or in obedience to the Law of Christ yea and some persons there are whose safety though they should persecute us we are bound to prefer even before our own lives because we know that their welfare is either very necessary or very profitable to the Commonwealth And if Christ did enjoin us to part with our Coat rather than to contend for our Cloak certainly he would have us to neglect much greater losses rather than go to War because there is no contest so destructive as War Sometime again the remedy brings more danger than the disease De off l. 2. c. 2. And as St. Ambrose observes to forego something of our just right is not only liberal but for the most part gainful Aristides exhorting the Grecian Cities to peace perswades them rather to yield than to quarrel for small matters In imitation of good men who had rather sit down with loss than go to Law for trifles And Xenophon will inform us That it is the part of a wise man not to embroil himself in War though for matters of great importance The like advice Apollonius gives unto Princes Graec. Hist l. 6. Not to engage in War though for great matters III. Especially by a King that is injured As concerning punishments our principal duty if not as men yet as Christians is willingly and readily to remit them as God in Christ doth unto us Eph. 4.32 Seneca concerning a good Prince saith That he is more ready to forgive injuries done against himself than those done against others for as a magnanimous person scorns to be bountiful of another mans purse but had rather detract from himself what he gives unto others so he only deserves the title of being merciful who bears his own injuries patiently and
it is a thing in it self so horrid Quest Nat. lib. 5. c. 18. Grat. c. 33. q. 1. that nothing but pure necessity or perfect charity can denominate it just or honest So St. Augustine Militare non est delictum sed propter praedam militare peccatum est Simply to make War is not sinful but to make War for plunder and pay only must needs be wicked X. Especially they that make War for spoil Nay to make War for pay or hire is likewise a sin if that be the only or principal thing we aim at though otherwise to receive pay for our pains when we are lawfully called to fight is altogether lawful For who saith St. Paul goeth to War at any time upon his own charge CHAP. XXVI How War may be justly waged by such as are Subjects to anothers Command I. Who they are that are under the dominion of another II. What they ought to do being admitted to debate or being left to their free choice III. If they think the cause unjust though commanded they ought not to make war IV. What they ought to do in case they doubt the justice of the Cause V. If they cannot be satisfied their persons are to be spared but their Taxes heightened VI. In what case Subjects may justly take Arms in an unjust War I. Who are said to be under anothers Dominion HItherto we have treated of such as are free and have power to dispose of their own actions There are others that are under a more servile condition and such are the Sons of a Family Servants Subjects and each particular Citizen compared with the whole Body of the City whereof they are II. What they are to do being left to their own choice But these men if either admitted to advise or left to their own choice whether they will either take up Armes or be quiet ought to be guided by the same Rules which are already set down for those who being free have power to make war either for themselves or others III. What if they think the cause unjust But if commanded thereunto as usually they are then if it be evident unto them that the Cause is unjust they ought altogether to forbear for that God is rather to be obeyed than man was not only the judgment of the Apostle but even of Socrates also as Plato testifies in his Apology So also thought the Hebrew Doctors namely That Kings if they command any thing contrary to Gods Laws were not at all to be obeyed For this Josephus records of his Country-men who being convicted before Herod for pulling down the Roman Eagle which he had caused to be erected over the Great Gate of the Temple at Jerusalem and demanded how they durst do it returned this Answer Ant. lib. 17. c. 8. What we have done we did in vindication of God's honour and of that Divine Law whereof we profess our selves to be the Disciples neither hast thou cause to wonder if we hold the Laws which Moses delivered unto us from God himself to be more sacred and indispensable than thy Decrees Neither do we refuse to suffer death or any other punishment thou shalt think fit to inflict upon us as knowing that we shall not suffer as Malefactors but as Martyrs in a good Cause That excellent Saying of Polycarpus now ready to expire lives still upon Record namely To Princes and Potentates we owe all due honour and obedience yet not so as thereby to endanger our eternal salvation It was the advice of St Paul Children obey your Parents in the Lord Eph. 6.1 for this is right upon which words St Hierome thus glosseth For Children not to 〈◊〉 their Parents is a sin but because Parents may haply command that which is unlawful therefore he addes In the Lord. And St Chrysostome thus expounds them Children obey your Parents in the Lord that is in all things wherein you shall not disobey God Ad Patrem Infidelem And in another place he saith For it is no small reward that God proposeth to us for our obedience to Parents and Magistrates For we are commanded to esteem them as our Lords and both in words and deeds to yield them all due observance yet so as the works of true piety and devotion are not thereby hindred But if thine obedience unto God call thee forwards then that of St Hierome holds true which he speaks declamatorily out of Seneca Per calcatum perge Patrem Thou must go on though thou tramplest on thine own Parents For our obedience unto our Parents cannot justifie our disobedience unto God For as the same Apostle saith Every man shall receive from God according to his own works whether bond or free The like advice doth St Hierome give unto Servants where he addes In Eph. 6.1 But when our carnal Lords shall command any thing contrary to the will of him who is the God of the Spirits of all Flesh then they are not to be obeyed Again in another place In those things only are men subject unto their Lords and Masters which are not contrary to the Commands of God So likewise Chrysostome Servants also have their bounds and limits prescribed them by God In 1 Cor. 7.24 and how far they may go in their obedience is also commanded beyond which they must not proceed If the Lord command us nothing that is by God forbidden he is to be followed and obeyed but not beyond The like advice gives Clemens Alexandrinus concerning a Wife Let her saith he obey her Husband in all things and do nothing against his will but what she believes may very much conduce to vertue and her own salvation So likewise Tertullian We are sufficiently instructed saith he by the Apostles Precept to be subject to Magistrates Princes and Powers in all obedience Sed intra limites Disciplinae So far as they transgress not the Rules of Christian Discipline The like we read of Silvanus the Martyr We therefore despise the Roman Laws lest we should thereby transgress the Divine Laws And Musonius If a Son a Servant or a Subject In Martyrologio shall refuse to yield obedience unto either a Father a Master or a Prince in such Commands as are impious and ungodly they shall not be accounted as disobedient injurious or wicked Now as the obedience of Servants is bounded by the Divine Laws so is that of Children to Parents Lib. 2. c. 7. Aulus Gellius approves not of this opinion That a Father is in all things to be obeyed For saith he what if he command his Son to betray his Countrey to kill his own Mother c. Therefore the middle way is best and safest in some things we must in other some we must not obey So Seneca the Father Non omnibus Imperiis parendum est All Commands oblige us not unto obedience So Quintilian There is no necessity that Children should execute all their Parents Commands for there may be many things which though
commanded may not lawfully be done As if a Father command his Son to give his suffrage or to pass a sentence contrary to his own judgment or to bear witness to that whereof he is ignorant If my Father command me to burn the Capitol to possess my self of such a Fort or Castle I may lawfully answer These things I must not do So in another place We are not to execute all our Parents Commands for otherwise nothing would be more destructive than benefits received if they oblige us unto all manner of servitude To the same purpose is that of Seneca Neither can we command all things nor can our servants be compelled to obey us in all our Commands Contra Rempublicam Imperata non facient They will not obey us if we command them any thing against the Common-wealth they will not though commanded put their hands to any wickedness Of the same opinion was Sopater A Father saith he is indeed to be obeyed if his Commands be according to Law it is true but if otherwise it is not convenient To justifie Subjects for refusing to execute the wicked Commands of their Princes we have divers examples in the Sacred Stories Saul commanded his Guards to fall upon the Priests at Nob but they would not put forth their hands to fall upon the Priests of the Lord 1 Sam. 22.17 Ahab at the instigation of Jezebel persecuted the Lords Prophets to death but good Obadiah preserved a hundred of them and fed them by fifty in a Cave 1 Kings 18.4 Ahaziah commands a Captain and his Fifty to apprehend Elijah only for pronouncing that Sentence which God passed against him Elijah not only refuseth to come down but to vindicate his Commission commands fire from Heaven to consume the Messengers 2 Kings 1.10 In our Christian Stories we find Manuel and Georgius highly commended for refusing to be instrumental in the murder of Augusta And in Prophane we have likewise two notable Examples of such who have refused to obey their Princes in their unlawful Commands the one of Papinianus that great Lawyer who being commanded by Caracalla to justifie as well to the Senate as the people the Paracide he had committed upon his own Brother Geta Spartianus Lib. 21. readily answered That it was not so soon justified as done and for his refusal suffered death The other of Helpodius both recorded by Ammianus Marcellinus whereunto we may adde that of Severus who would have no man exempted from punishment that should dare to take away the life of a Senator extrajudicially as I suppose though at the Emperors Command Stratocles was worthily derided among the Athenians for but offering at a Law Vid. Xiphilinum whereby whatsoever should please King Demetrius should be reputed as pious â—â—wards God and just amongst men Pliny in his Epistle to Minutius labours to make it appear Lib. 3. That the very ministry or execution of unlawful commands is sinful For as Tertullian speaks Plus caeditur qui jubet quando nec obsequitur qui excusatur Surely he that commands things unjust is severely punishable when he that but executes them cannot be excused Those Civil Laws which do easily pardon venial sins are also very favourable to those who are inforced either to sin or to disobey and yet they are not favourable to all alike For where the crimes are foul and such as Nature by a secret instinct seems to abhor they shew no favour at all But where the offence appears not to be heinous by any natural interpretation but by Logical inferences may be proved to be so there they wisely vouchsafe pardon Josephus relates That the Jews that served under Alexander the Great could neither by stripes nor any reproachful words be inforced to carry Earth or other materials as the rest of the Souldiers did towards the repair of the Temple of Belus which was in Babylon But examples more pertinent to our purpose are the Thebean Legion whereof we have already spoken and the Souldiers that served under Julian Christian Souldiers under Julian the Apostate whereof St Ambrose speaks thus Though the Emperour Julian were an Apostate yet had he many Christians that served under him to whom if had said Draw out for the defence of the Commonwealth they would instantly have obeyed but if he should have said March out against the Christians tunc agnoscebant Imperatorem Coeli then they would have acknowledged no King but the King of Heaven The like we read of those Executioners who being converted to Christianity chose rather to dye themselves than to execute the Sentence of death pronounced against Christians Now the Case is the very same whensoever any man is perswaded that the thing commanded is unjust for to such a man it is so long unjust until he can be convinced that it is otherwise IV. But what if he doubteth But what if he be in doubt whether it be lawful or not is he to suspend or to obey The most received opinion is That he must obey Neither should he be startled at that notable Saying Qâ—od dubitas ne feceris forbear if thou doubtest For he that contemplatively doubteth may as to his practical judgment not doubt at all because he may be confident that in doubtful Cases he is bound to obey his Superiours And indeed that this distinction of a twofold judgment is of necessary use in many actions it cannot be denyed The Civil Laws not only of the Romans but of other Nations do not only indemnifie obedience in such a Case but will admit of no civil action against them that do it in obedience Many Magistrates saith St. Chrysostome we have heard of who being accused of unjust murthers have been punished But no man ever questioned the Executioner or made inquisition after him for the necessity of obeying his Superiour makes his fact excusable Is damnum dat qui jubet dare He say the Lawyers gives the damage that commands it And again Ejus vero nulla culpa est cui parere necesse est Neither can the fault be properly his who being commanded must obey And again Necessitas potestatis excusat That which is inforced on us by a power above us is pardonable Aristotle himself Nicom 5. Injustum facere sed non injustè among those who do unjust things but not unjustly reckons the Servant of a wicked Master For he is said to do unjustly from whom the action doth originally proceed Now because in a Servant there is no full deliberative power therefore the Servant though he do that which is unjust yet in doing that only which he is commanded he doth not unjustly According to that Proverbial Saying Dimidia virtute caret servire coactus He wants one half of goodness that must serve And that also One half of humane reason God withdraws From those who live under anothers Laws And that which Philo makes use of If serve thou dost what 's reason unto thee Vlpian out of Celsus
and calling upon God obtained the Victory and by it much spoil 2 Chron. 14.13 Which is the more notable because that War was not undertaken by any special command from God but only out of common Right Joshua also pursuing the same Rubenites Gadites and part of the Manassites in their prosperous successes saith Divide the spoil of your Enemies with your Brethren Josh 22.8 And when David sent to the Elders of Israel the spoil taken from the Amalekites he gave this honourable Character of it 1 Sam. 30.26 De Benef. 37. That it was a present sent them out of the spoil of the Enemies of the Lord. And no marvel for as Seneca observes To enrich any man with the spoils of an Enemy is honourable There are also certain Divine Laws extant concerning the dividing of such spoils as Numb 31.27 And Philo the Jew reckons it among the Curses of the Law That their fields should be reaped by their Enemies whereby must necessarily ensue Famine to themselves and Plenty to their Enemies Whereunto we may add That God gave the spoil of Tyre to Nebuchadnezor for the pay of his Army Ezech. 29.19 20. because that by him God punished the Pride of the Tyrians for insulting over Jerusalem Ezech. 26.2 II. What the Law of Nations Moreover by the Law of Nations not only he that makes War for a just cause but every man in a solemn War is without either end or measure owner of whatsoever he can take from an Enemy namely in that sense that both he and whosoever claims from him are to be defended in their possessions of the things so gained by all Nations which according to the external effects thereof may be called Dominion This saith Xenophon is an everlasting Law with all men that a City being taken by force all the goods and riches are the Conquerours Plato likewise was of the same opinion All that was the Conquereds Bona quae victus habuit omnia victoris fiunt become after the Victory the Conquerours And elswhere amongst divers kinds of natural acquisitions he placeth this also which he calls sometimes Polemical sometimes Predatory and sometimes Certatory Therein agreeing with Xenophon who brings in Socrates by divers interrogations drawing Euthydemus to this confession That it was not at all times unjust to spoil and to destroy as for example when done against an Enemy Aristotle in the first of his Politicks saith That the Law of Nations as by an universal agreement had ordained that whatsoever is conquered from an Enemy by War becomes immediately the Conquerours To the like purpose is that of Antiphanes We ought to wish our Enemies abundance of riches without valour for so those riches will quickly find other Masters not those that possess them but those that can conquer them For as Plutarch observes in the life of Alexander What was the vanquisheds both is amd ought to be accounted the Conquerours Instit Cyri. l. 2. And elsewhere the same Plutarch The goods of those that are by War overcome are proposed as the reward of the victory which are the very words of Xenophon What is gained by Arms saith Diodorus or got by the right of War ought not easily to be lost Thus Philip in his Epistle to the Athenians saith All of us possess Cities which were either left us by our Ancestors or being subdued became ours by the right of War Thus Aeschines also If by making War against us thou hadst subdued our City thou mightest lawfully have possest it by the Law of Arms. Marcellus in Livy justifies himself in taking the spoil of Syracuse by the Right of conquest And the Goths in Agathias do by the same Law justifie King Theudorick who had first conquered Odoazer saying Quae ejus fuerant omnia tenuit jure belli Whatsoever Odoazer had Theudorick possest by the right of War Thus the Roman Embassadors told Philip concerning the City of Thrace and some others That if he had taken those Cities by War they had been his by the Law of Arms as being the reward of his victory And thus Massanissa pleads saying The land that his Father conquered by War from the Carthaginians he held by the Law of Nations So also Mithridates in Justine saith Lib. 38. That to please the Romans he had withdrawn his Son out of Cappadocia which as a Conquerour he was rightly possest of by the Law of Nations Or. 2. contra Rullum Offic. 1. Cicero tells us that the City Mitylene became the Romans by the Right of War and by Conquest And in another place he tells us That propriety in some things may be gained either by preoccupancy or by War as in those things that are gained by Victory Of the same mind was Dion Cassius All that was the Conquered's immediately becomes the Conquerours Quae ex hostibus capiuntur jure gentinus statim capientium fiunt Whatsoever saith Cajus the Lawyer is taken from an Enemy by the Law of Nations immediately is made his that takes it And this kind of acquisition Theophilus calls a natural possession So likewise Aristotle Arist l. 1. de rep c. 8. because it hath respect to no other cause than the bare fact it self from whence ariseth a kind of natural Right as the Dominion of all things at first began by Preoccupancy an impression whereof we have yet remaining in such Creatures as are naturally wild whether they live on the Earth in the Sea or in the Air which for the most part are theirs that first take them As those things also which are taken in War Besides those things are presumed to be taken from an Enemy that are taken from the Subjects of an Enemy Hist Gâ— l. 3. As Dercyllides in Xenophon argues since Pharnabazus was an Enemy to the Lacedemonians and Mania subject to Pharnabazus therefore were the goods of Mania lawful prize by the Law of Nations III. When moveable Goods are said to be taken Moreover by the Law of Nations things are then said to be taken in War when they are so detained from us that we are deprived of any probable hopes to recover them and are no longer able to pursue them as Pomponius determines the like Question And this in things moveable is to be presumed as soon as they are carried into the Enemies Garrisons A thing may be said to be lost in the same manner as it is said to return after it hath been lost but may be said to return as soon as it comes within the Bounds of the Empire from whence it was taken that is as soon as it comes within our Garrisons Nay Paulus the Lawyer doth plainly averr that man to be taken that is carried out of our Bounds And Pomponius declares that man to be taken in War whom our Enemy having apprehended from out of our Garrisons had led into their own For until he be secured within their Garrisons he remains a Citizen or Subject of ours Now by this Law of Nations
great or small there is no change of Dominion but by the Authority of a Judge CHAP. VII Of the Right over Captives taken in War I. That Captives taken in a solemn War are by the Law of Nations slaves II. Yea and their posterity III. That whatsoever is done unto them is unpunishable IV. Even the incorporeal things that belong to Captives may be acquired by War V. The cause why this was ordained VI. Whether Captives may make their escape VII Or resist their Lords VIII That this Right is not allowed in all Nations IX Nor now amongst Christians and what succeeds in its room I. Captives in a solemn War naturally slaves THERE is no man by nature servant to another that is no man in his primitive state or condition considered without any fact done by himself whereby his natural liberty is impeached as I have elsewhere shewed * Videlib 2. ch 22. §. 11. in which sense our Lawyers may be understood when they say that to be another mans slave is against nature But that this kind of slavery might at first be introduced by some fact done namely by some voluntary agreement or for some crime committed is not repugnant to natural justice as we have elsewhere also shewed But by that Law of Nations Book 2. ch 5. §. 27. whereof we now treat the word Servitude is of a larger extent both as to persons and as to its effects for as to the persons not only they that surrender themselves to the will of the Conquerour or that oblige themselves by promise so to do but all persons whatsoever that are taken in a solemn War as soon as they shall be brought within our Garrisons are altogether accounted Captives or Slaves as Pomponius hath well observed Neither is it to any purpose to plead that they never bare Arms against us nor declared themselves Enemies by any Hostile Act seeing that in this case Par est omnium fortuna Every mans condition is alike yea even the condition of those who by mere fate happen to be found in the Enemies Territories at such time as the War unexspectedly brake forth Lib. 2. Polybius speaking of Captives taken in actual Arms puts the Question thus Quid patiendum est his ut justa supplicia pendant What must these men suffer that their punishment may be just If any man say they may be sold with their Wives and Children he answers At haec belli lege etiam illis ferenda sunt qui nihil impii commiserunt But so saith he may they be by the Law of Arms who never did us hurt Philo notes the very same where he saith That many good men lose their natural liberty by occasions that are involuntary and merely accidental Dion Prusaeenses recounting the several ways whereby a man may get Dominion assigns this as the third When a man hath taken a Prisoner in time of War that never did any act of hostility and by that means makes him his slave Oppianus de piscatu l. 2. So Children being taken in War may be led away and made slaves Servius upon the first of Virgils Aeneads speaking of Hesione the Daughter of Laomedon whom Hercules slew as he was going out of Troy saith That she was taken Prisoner by the Law of Arms and given to Telemon Hercules his companion And in another place he tells us That the Grecians refused to deliver her back to the Trojans saying she was a Prisoner of War II. Yea and there posterity Neither are the persons of Men and Women only thus taken made slaves but their posterity for ever for whosoever is born of a Woman after her Captivity is a slave born for Partus sequetur ventrem The Child will follow the condition of the Mother Martianus accounts all those for slaves by the Law of Nations who are born of Bond-women And Tacitus speaking of the Wife of Arminius a German Prince who had been taken Prisoner by Germanicus saith That she had Vtrum servitio subjectum meaning that whatsoever Children were born of her were bond-slaves III. Whatsoever is done unto such is unpunishable The effects and consequences of this Right are infinite so that there is nothing so unlawful but the Lord may do it to his slave as Seneca the Father notes * 1. Controv. 5. there are no Torments but what may with impunity be imposed on them nothing to be done but what they may be forced to do by all manner of rigour and severity so that all kinds of cruelty may by the Law of Nations without controul or appeal be exercised upon Captives were it not that this licence is somewhat restrained by the Civil Law It is universally indulged by all Nations to the Lord to have power of life and death over his slave saith Cajus the Lawyer but he tells us withal That the Roman Laws did limit otherwise unbridled power within their own Territories Quid non iustum Domino in servum What may not the Lord do unto his slaves saith Donatus upon Terence yea Andr. Act 1. Scen. 1. not only the person but all that is taken with him are lawful prize Ipse servus qui in potestate alterius est nihil suum potest habere He that is a slave saith Justinian Libro omnem virum bonum liberum esse and under the power of another can have right to nothing that was his before So likewise Philo He that is a Captive loseth his right to all other things no less than the power over himself IV. Even the things incorporeal of the slave are transferred to the Lord. Hence then their Opinion may be confuted or at least restrained who hold that things incorporeal cannot by the Law of Arms be acquired * Lib. 6. cap. 9. 2. Val. Maximus records it of Scipio Nasica That whereas being Consul he was taken prisoner by the Carthaginians at Lipara and so by the Right of War had lost all yet fortune afterwards smiling upon him he recovered all and was again created Consul It is true that primarily and by it self things incorporeal cannot by War be gained but they may be lost as to the person whose they formerly were But yet we must here except all things that do proceed from some singular propriety in the person taken which by no means can be alienated as the right of a Father to his Son for such Rights if they do not remain with the person are altogether extinct V. The reason why this Instituted Now all this unlimited Power is by the Law of Nations granted for no other Cause than that the Conquerour being allured by so many advantages might be willing to forbear that utmost cruelty which they may lawfully use by killing their Captives either in the heat of fight or afterwards in cold blood The name of servant as Pomponius tells us did at first arise from the custom of Generals who sold their Captives and thereby preserved them from being slain Servi quasi servati
said of particular persons may also be said of Cities and people That if they were free they may recover their freedom If the power of their Friends and Associates be able by foâ—ce of Aâ—ms to release them from the power of their enemies But if the very Body of the people that constituted that City be dissolved I believe that they that succeed are not to be accounted the same people neither are those things that formerly belonged to that City to be restored unto them by this Right of Postliminy according to the Right of Nations because a Nation like a Ship by the dissolution of its parts doth absolutely perish for that its whole Nature consists in the perpetual Conjunction of all its Mâ—mbers Wherefore it was not the same City of Saguntum though the place where it formerly stood were restored unto the ancient Inhabitants eight years after its dissolution Neither was Thebes the same City after that Alexander had sold the Citizens for Slaves whence it follows That what the Thessalians owed unto the Thebans before such dissolution could not justly be claimed by those Thebans by Postliminy and that for a double reason First Because they were then a new people secondly Because Alexander whilst he was Lord over them had a power to alienate that Right and accordingly had done it and lastly A Debt is not to be reckoned among those things which return by Postliminy Not much unlike to what we have said concerning Cities is that which the ancient Roman Laws concluded of Marriages namely That they were by captivity dissolved neither could they be restored by postliminy but must be redintigrated by the first consent of both parties But it is otherwise among Christians witness that of Pope Leo unto Nicetas Bishop of Aquileia concerning such Marriages namely That as in Slaves or Fields or even in Houses and Possessions the right and title of them is preserved for those that are Captives in case they shall return out of captivity so also in Wedlock if either party be married to another let them be reformed See what Hincmar hath written to this purpose in his Tract concerning the Divorce of Lotharius and Terberga to the thirteenth Interrogatory and the Answer of Pope Stephen in the second Tome and nineteenth Chapter of the Councils of France X. To those that return what Rights arise from the Civil Law By what hath been already said it is no hard matter to understand what manner of right by the Law of Nations Postliminy gives to free men Moreover this very same right may by the Civil Law so far as it belongs to things agitated within the City be both restrained by adding some exceptions or conditions and also enlarged unto other profits and advantages as occasion serves As by the Roman Civil Law Fugitives are exempted out of the number of those that were capable of this right so were also the Sons of a Family over whom the Father was conceived not to have lost that Paternal power and authority which was peculiar to the Romans and that for this reason as Paulus observes Because to Roman Parents their Military Discipline was ever dearer than their own Children whereunto agrees that which Cicero records of Manlius That he strictly upheld the Discipline of the Roman Empire though to his own grief that so he might the better provide for the safety of the City wherein was also bound up his own which made him prefer the Sovereign Right of Majesty which was then in himself before the bonds of Nature or the tenderness of a Father towards his own Son Again some diminution of this Right of Postliminy is that which was ordained first by the Athenians and afterwards by the Romans namely Vt qui redemptus est ab hostibus Redemptori serviat donec pretium reddiderit That he that was redeemed should serve his Redeemer until he should have repaid his ransome But this was made in favour to the poor Captives lest if there should be no provision made for the recovery of the money so paid many Prisoners should have been left in perpetual slavery among their enemies But yet even this very slavery was many ways mitigated by the Roman Laws and at length by the last Law of Justinian it was limited to five years service neither could the money paid for his redemption be recoverable after the death of the party redeemed So also by any Contract of Marriage between the person redeemed and the person redeeming it was adjudged to be forgiven So if it were a Woman that was redeemed if the Redeemer did prostitute her Body the ransome was lost There were many other Laws made among the Romans in favour to those that would redeem Prisoners and to punish their Kinsmen for neglecting them Again this Right of Postliminy was by the Civil Law much enlarged in that not only those Rights in Postliminy which are allowed of by the Law of Nations are granted unto him that so returns but generally all things and all Rights are as intirely his as if he had never been within the power of the enemy And this was also the Attick Law for as we read in Dion Prusaeensis A certain man pretending to be the Son of Callias who had been taken Prisoner in the Slaughter at Acanthus and as he said been kept as a Prisoner in Thrace when he had made his escape to Athens claimed by Postliminy his inheritance from those that then had the possession thereof after his Father we do not read that any thing was pleaded against his Right only it came in issue Whether he were the Son of Callias or not The same Authour likewise relates That the Messenians after long captivity at length returning received both their liberty and Country Yea and those things which either by usucapion or redemption seemed to be taken away out of the Goods or through disuse to be deserted are all of them recovered by a Rescissory Action For under the Edict of making restitution to Ancestors he also who is under the power of Enemies is comprehended Nay farther the Cornelian Law provides for the Heirs of such as dye in captivity and conserves all their Goods as lawfully as if he that returned not were at that very time when he was taken dead Now were it not for these Civil Laws without doubt as soon as any man were taken Prisoner by the enemy his Goods would presently be theirs that had them in possession because Qui apud hostes est pro nullo habetur He that is under the enemies power is held for none And then if he that was taken should return he should receive nothing but such things as by the Law of Nations were due unto him by Postliminy But that the Goods of a Captive were confiscate and brought into the Treasury in case he had no Heir was a Law peculiar to the Romans only Hitherto we have treated of things that return now we shall speak of such things as are received by
liceant est aliquid quod in hominem licere commune jus animantium vetat Although whatsoever is done to a Slave be lawful yet are there some things which the very Law of Nature prohibits to be done unto him as he is a man For whosoever is born a man though he be a Slave Phelim yet doth he not thereby cease to be a man So Seneca Are they Servants yet are they men Epist 47. Are they Servants yea and our Companions Are they Servants yea and our humble Friends Are thy Servants yea and our fellow Servants if we do but consider what power fortune hath over either of us And a little after in the same Epistle Consider that he whom thou callest thy Servant is born of the same nature equally to enjoy the same common air equally to breathe live and dye as thy self and if it had so pleased fortune might as well have seen thee a Slave as he now sees thee a Freeman And what we may read in Macrobius is but the same advice that St. Paul commends unto us Coll. 4.1 Masters do unto your Servants that which is just and honest as knowing that ye also have a Master in Heaven And in another place he admonisheth us not to terrifie them with menaces and threatnings which he presseth upon us by the same argument because we also have a Master in Heaven who regards not such distinction of qualities Lib. 7. c. 14. In the constitutions of Clemens Romanus we have this advice Govern not thy man nor thy maid-servant with too much austerity The reason whereof is given by Barnabas in his Epistle Lest thereby thou testifie against thy self that thou fearest not him who is the supreme Lord both of them and thee Clemens Alexandrinus also exhorts us to use our Servants as our second selves Seeing that they are men as well as we imitating therein that wise Hebrew If thou hast a Servant use him as a Brother for he is such a one as thy self III. That it is not lawful to kill an innocent Let us now admit that the Lord hath over his Slaves the power of life and death to uphold his Domestick Discipline but then let that jurisdiction be used with that religious moderation as the Magistrate useth in the publick This was the advice of Seneca De Clem. lib. 1. cap. 18. Ep. 47. In thy Bondman thou art to consider not what thou maist inflict on him without the restraint of the Law but what in equity and good conscience thou oughtest to do unto him which requires sometimes to favour even thy Captive and thy Slave whom thou hast bought with thy money De. Benes lib. 3. c. 18. And in another place comparing Subjects with Servants he saith Though they have different titles yet is the licence over both the same which certainly holds true in this particular in taking away the life of either Majores nostri domum nostram pusillam Rempublicam esse voluerunt Our Ancestors saith Seneca did reckon every family as a little Commonwealth Ep. 43. So also Pliny Every mans house as to Servants is as a City Insomuch that Cato the Censor as Plutarch informs us would not punish any of his Servants for never so great a fault Nisi postquam damnatus esset etiam conservorum judicio Vntil he had been found guilty by his fellow Servants Job 31.13 14 15. Whereunto we may add that of Job If I did despise the cause of my man-servant or of my maid-servant when they contended with me what then shall I do when God riseth up and when he visiteth what shall I answer him Did not he that made him make me and did not one fashion us both IV. Nor unmercifully to punish him Yea and to lesser punishments as stripes and blows c. much of equity and favour is to be shewed to Captives and Bondmen Thou shalt not oppress him or rule over him with rigour saith the Divine Law concerning the Hebrew Servant which since the coming of our Saviour Levit. 25. by reason of that affinity that there is between all mankind ought to extend to all Servants upon which Law Philo thus glosseth Servants in respect of the goods of fortune are our inferiours but in respect of our common nature our equals But the rule of Divine justice saith he is not that which is agreeable to fortune but to nature Masters therefore are not to behave themselves towards their Servants insolently nor to abuse that power which the Law permits them thereby to grow cruel For these are signs not of a meek and calm but rather of a froward and intemperate mind domineering over their Servants in a tyrannical way In excerp Legationum Priscus comparing the Romans with other barbarous Nations tells us That they treated Captives with much more mildness than others did performing unto them rather the offices of Fathers and Tutors than of Conquerours For as they studiously withdrew them from those things which in respect of their own customes were unlawful so if they did offend they only corrected them as sons but to kill them as the Scythians did they esteemed utterly unlawful There are divers kinds of liberty indulged unto them by their Lords and that not only whilst they lived but at their deaths for whatsoever dying they ordain or appoint to be done with that which is their own hath the power and force of a Law Philo in his second Book of Special Laws as also St. Cyprian in his Epistle to Demetrian highly blames this severity towards Servants If thou art not readily obeyed in all things say they if thy will be not executed as a Law thou growest presently imperious and cruel thou tormentest thy slave with whips and scourges thou afflictest him with hunger thirst nakedness and oft-times woundest him and throwest him into Prison and yet wretched man that thou art whilst thou thus abusest thy power towards thy captivated slave thou forgettest thy duty to and thy fear of the Lord thy God Now what can be more foolish and absurd saith Seneca Seneca than to make the condition of a Servant worse than that of a Beast He that would skilfully manage an Horse will not provoke and exasperate him with many stripes for unless he be gently handled at the first he grows fearful and headstrong And again What can be more unseemly saith the same Seneca than to exercise that cruelty upon a man though our Slave which we would be ashamed to exercise over Doggs or Oxen. To restrain which brutish cruelty it was wisely provided by the Hebrew Law That if a Master did strike out the eye or tooth of his Servant injuriously he was for that eye or tooths sake to let him go free Exod. 21.26 27. Whereby it falls out saith Philo that the Master undergoes for his cruelty a double punishment in the loss of his Servants both labour and ransome whereunto we may add a third more grievous
to their People and if they did make War it was not for Dominion but for the honour of the Conquest Now unto this Ancient Custome it is that St. Aug. laboured as much as in him lay to reduce us De Civit. Dei l. 4. c. 15. Let Princes saith he consider that it belongs not to good Kings to take pride in the enlargeing their Dominions for as he there adds Major est foelicitas vicinum habere concordem quam malum subjugare bellantem It is greater happiness to have a good Neighbour that is peaceable Lib. 5. cont Julian than to subdue a bad one that is troublesome Upon which account it was that St. Cyril commends the Hebrew Kings who always contented themselves with their own bounds without encroaching on their Neighbours which was the very sin for which the Prophet Amos did so severely reprove the Ammonites III. Which may be done either by intermixing the Conquerors with the Conquered Nearest unto this original draught of innocence comes that prudent moderation used by the old Romans What saith Seneca * Lib. de Ira c. 34. had our Empire been had not a wholesome providence taught us to intermix the Conquered with the Conquerours Our great founder Romulus as Claudius in Tacitus tells us †Annal. l. 5. Lib. 1. did so prevail by his wisdom that many people whom the rising Sun saw his Enemies the setting Sun saw his Subjects and Citizens Neither was there any thing that did more ruine the Lacedemonians and the Athenians than this That they always drove away the vanquished as Strangers Livy informs us that the Commonwealth of Rome was much augmented by the reception of the Conquered into their City whereof Histories afford us plenty of examples As of the Sabines the Albanes the Latines and so of the rest of the Italian Nation till at length Caesar first led the Gaules in triumph and afterwards admitted them to be of his Court and Council Cerialis in Tacitus thus bespeaks the Gauls Ye your selves are usually admitted to command our Legions Ye are they that govern not this only but others of our Provinces there are no places of trust from which ye are excluded wherefore as he there infers ye ought in all reason to endeavour all you can to preserve that life and Peace which ye though vanquished do equally enjoy with us the Victors Nay which is yet more admirable by the decree of the Emperour Antoninus all that lived within the Circle of the Roman Empire were made Citizens of Rome which are the very words of Vlpian whereupon Rome was then accounted as Modestinus affirms Communis Patria The common City or every mans Country Whereof Claudius thus Hujus pacificis debemus moribus omnes Quod cuncti gens una sumus To th' honour of this Prince it may be said That of the World he but one Nation made IV. Or by leaving the Government to the vanquished Another kind of moderation used in Victory is when the Government is left in the same hands either of King or People who hold it before the Conquest Thus Hercules bespeaks King Priamus Hostis parvi victus lacrymis Sen. Troad Suscipe dixit rector habenas Patrioque sede celsus solio Sed sceptra fide meliore tene By a weak Enemies tears ore'tane Take saith he thy Crown again Ascend thy Fathers Throne on high But henceforth rule more moderately So also the same Hercules having conquered Neleus gave his Kingdom to Nestor his Son Thus the Persian Kings were wont to leave their Kingdoms to the Kings whom they had conquered contenting themselves with the bare Victory Thus did Cyrus to Armenius Alexander to Porus. De Clem. lib. 1. c. 21. And this is it that Seneca highly commends in a Conquerour Nihil ex rege victo praeter gloriam sumere To take nothing from the Conquered besides the honour of the Conquest This is triumph over Victory it self and to declare that there was nothing to be found among the Conquered worthy of the Conquerours acceptance but the Conquest it self Thus Pompey having overcome Tigranes left him a part of his Kingdom to govern as Eutropius informs us And herein is Antigonus extold by Polybius That having brought Sparta under his absolute power Lib. 6. he gave the Citizens the free use of both their Ancient Laws and Liberties for which Act his praises were highly celebrated throughout all Greece Thus did the Romans give unto the Cappadocians whom they had conquered a power to use what form of Government they pleased and many Nations we may read of which being Conquered were notwithstanding left free Thus was Carthage left at liberty to live under their own Laws as the Rhodians pleaded to the Romans after the second Punick War Livy lib 32. And when the Aetolians told Quintius that there could be no firm Peace until Philip of Macedon were driven out of his Kingdom He answered That they were too severe in their censures as being unmindful of the common custome of the Romans who for the most part spared those whom they had in their power adding this withal Adversus victos mitissimum quemque maximum animum habere That he who was mildest towards the Conquered was ever held most magnanimous V. Sometimes by keeping of Garisons Sometimes though the Empire be restored yet the Conquerours security is also provided for Thus it was ordained by Quintius That the City of Corinth should be restored to the Achaians but withal That there should be left a Garison in Acrocorinth which also was afterwards withdrawn and that Chalcides and Demetriades should be detained until all fear concerning Antiochus should cease IV. Sometimes by imposing Tribute The imposition of Tribute is oft-times not only for the defraying the charges of a War but for the mutual security of both the Conquerour and the Conquered for the time to come Cicero in his Epistle to his Brother Quintus concerning the Grecians * Lib. 1. ad Quintum Fratrem Epist 1. writes thus Let Asia also consider That unless She be secured by the Roman Power She can never be without a Foreign War or Domestick Broils And since this Power that secures her cannot possibly subsist without Tribute good reason it is that She should be contented with sopme part of her wealth to purchase to herself perpetual Peace Thus doth Petilius Cerealis in Tacitus plead for the Romans Hist l. 4. with the Langres and other Gauls We say they though often provoked yet by the Right of Conquest do offer unto you one only Condition of Peace namely That ye pay your Tribute For Peace among Nations cannot be defended without Armes nor Armes without Pay nor can we pay our Souldiers without Contributions Hereunto likewise we may refer those other things mentioned before Lib. 2. c. 15. § 7. where we discoursed concerning unequal Laws as the Delivery of Armes of Fleets of Elephants the prohibiting the use of Weapons the raising of
just War it may be lawfully acquired 524. distinguisht from the manner of holding 42. over some part of the Sea without any other propriety may be possest and how page 91 92 93 Empire and Dominion when they cease 141 142 143. not changed with the imperial seat page 144 Empire may be acquired either so far as it was in the conquered King or absolutely and so despotical page 485 The Empress Irene's design to divide the Empire between her Sons page 127 Enemies to be buried page 216 Enemies are they that denounce War the rest are Thieves and Robbers and Pyrates page 450 An Enemies Country with and how far it may be wasted page 511 c. To Engross the Fruits of one Nation how far lawful page 87 To Enrich our selves with other mens losses unnatural page 147 Ensigns of Sovereignty granted to a Prince of a free People page 41 42 Ensurances void either Party knowing the Goods either to be safe or lost page 164 Epicurus taking away Religion left nothing to Justice but an empty name page 386 Equal Rates set upon things to be exchanged ibid. Equality in Contracts what page 159 Equality what takes place in Acts merely or in part beneficent page 160 Equity takes place where the Obligation is in the literal sense grievous and intolerable page 197 198 Equitable Courts necessary 197. in what Cases especially ibid. Equity the Corrector in such Cases wherein the Land by reason of its generality is deficient ibid. Equity what page 553 Equivocal expressions not admitted but upon great occasions 440. especially in Leagues page 191 Errour whether it makes void an Act 151. in some Points of Religion whether punishable page 391 392 An Errour or mistake unknown to either of the Contractors at the Contract-making must be rectified page 160 Of Errour the punishment is to be taught page 392 An Escape made by a Captive he recovers all he lost by Postliminy page 488 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 534 Esseni swear not 220. they wholly abstain from War page 430 Evangelical Precepts whether comprehended in the Law of Nature page 16 Evidences no part of the substance of Contracts page 199 Of Evil the least to be chosen 411. hath the appearance of good page 488 Excursions above ten miles from the Camp makes what is taken theirs that take it page 473 Executioner to be satisfied in the Malefactors crime page 430 431 Exheredation 124. a Son exhederated whether any thing be due unto him ibid. whether a King may exheredate his Son page 130 Exiles their City hath no power over them 115 to inhabit any other Country lawful page 85 Extremity of our Right not to be exacted by War page 518 F. BY the Fact of another none naturally obliged but the Heir page 446 Factors and Masters of Ships how far bound page 154 Faithfulness the foundation of Justice page 151 Faith given to Subjects or Slaves though Rebels as such must be kept page 539 Faith sometimes taken for a full perswasion of the mind page 411 Of Faith whatever is not is sin ibid. Faith to be kept with the faithless 173. with Pyrates and Thieves upon Oath ibid. Faith given by Signs equivalent to Oaths 175. its breach though by Oath not punishable by humane Laws and why 538. sometimes given by silence 569. to be kept with Enemies of all sorts 536. even with Pyrates and Tyrants and when 537. Objections answered page 538 Faith not broken by a generous man though provoked 542. to be kept with the perfidious 540. and when not page 541 Whether private men may be compelled to keep their Faith with an Enemy page 557 558 Faith given in War by private men to be kept even to Pyrates Robbers and Tyrants though given but by Minors page 538 Fides Attica page 498 To preserve Faith an Exhortation to Kings page 571 False speaking to some Persons better admitted than equivocations c. page 444 False speaking to Infants and Mad-men no Lye page 442 Falshood of Joseph and the simulation of Solomon no frauds page 443 Falshood may be sometimes expedient for the common safety ibid. False Prophets page 392 Fate how understood in the Roman Laws page 472 473 Father of a Family what it signifies page 521 Fathers have as much power over their Children as over Slaves page 104 The Fathers the more Ancient the more Authoritative Pref. xix in them three things observable page 25 26 c. A Father when he hath power to sell his Son 104. forfeiting his Estate his Children may be said to suffer but not to be punished page 400 Fear uncertain no ground of War page 71 406 Where the Fear of loss is greater than the hopes of gain none will adventure page 419 By the Fear of War what is gained cannot be recalled yet from a Thief it may if not bound by Oath ibid. Fee-farms and Copy-hold why first granted 129. this done first by the Germans page 38 Ferus and Erasmus great Lovers of Peace Pref. xii their Opinion concerning War refuted ibid. Feuds 51. Empires may be so held from another it implies Obligations personal or real but takes away no Right of Empire or Dominion page 52 To Fight for Pay only unlawful but to receive Pay being lawfully called to fight lawful page 426 No Fighting against Famine page 420 Firing of Houses in War lawful page 434 Fish in Ponds Deer in Parks held in propriety page 135 Fish and Fowl though naturally common yet may the Owner of the Land or Water forbid their taking page 81 Flight from Persecution in what Case lawful page 61 By Flight they that would save themselves in a Siege by the Hebrew Laws might page 508 Force to repel with force naturally lawful 14. not all unjust 12 13. Force for punishment lawful page 434 By Force and Armes to be thrust out of possession what it signifies page 196 The Form of a Commonwealth how changed 540. of denouncing of War page 70 71 Foreigner compared with a Proselyte how they differ page 8 Forts of Friends weakly guarded may to prevent danger to our selves be surprized by us page 82 Frailty humane and Fortunes instability great Motives to clemency page 504 Frater quasi fere alter page 417 Fraud consists in acts negative or positive 438. whether in War lawful 337. in its positive Acts distinguisht if by acts into simulation if in word into a lye page 338 A Free-pass how to be interpreted 560. it extends to Persons Goods and Attendants page 561 Freedom is either Personal or Civil page 42 A Free-pass dyes with him that gave it 561. if during pleasure only how to be understood ibid A Free-State if power over its Subjects page 201 A Free Nation is not subject to another page 49 French Kingdom anciently Elective 144. their custom to avoid Civil War 414. distinct from the Romans 144. divided into Eastern and Western ibid. their Succession Agnatical 130. their custom concerning Captives page 484 Friends to be assisted if with
the major part it shall bind the minor ibid. whether it may be made with a Minor Captived Exiled King ibid. being made with a King whether the People and his Successors are bound 545. broken on one side may be kept by the other 550. whether to be preferred before liberty 65. firmly made is the end of War 571. caused by fear unjustly occasioned not to be broken 533. made free Cities surrendering to be set at liberty page 546 By Peace the Primitive Christians understood a vacancy from persecution page 29 Peculium what 522. how far the Lords and how far the Slaves ibid. Perfidiousness with Rebels Pirates Thieves connived at by the Law of Nations 462 what perfidious men to imploy is against the Law of Nations ibid. The People may alienate the whole Government from themselves page 37 The People of Rome chuse always their own Emperour 144. are the same they anciently were page 143 The People changing their Government stand obliged to those Debts contracted before such change page 143 A free People held the same place the King held before ibid. The People are the same under any Government ibid. yea though they change their seat 142. when they cease to be the same 141 142. whether punishable for their King 403. their consent how gained 119 120. how far obliged by the act of their King in making Peace 545. why punished for the fact of their King 41. their Patrimony or any part how far and in what cases engaged by their King 120. not alienable without the consent of the three States ibid. No Part of the People can be alienatd from the whole without consent but in extreme necessity page 119 Perjury always attended with curses 166. for it Glaucus how punished 166 167. and lying have the same punishment 175. it reaches the whole Posterity 166. its very intention punished 166 167. to Pirates and Robbers not punished and why page 538 Permission twofold perfect and imperfect 10. what 4. of crimes by him who ought and can hinder it punishable page 394 395. Permitted many things are which are not agreeable to reason or equity page 494 495 Persians have many Wives 106. their opinion concerning God 466. the custom in judging of Criminals 379. their severity in punishing the Children and Kindred for their traiterous Parents 403. the Right over their Children page 104 Perseus his Controversie with the Romans page 195 Peter forbid to use his Sword why page 133 Physicians rewarded though they cure not and why page 478 Picture of Jalysus by Protagenes at Rhodes page 218 Pignorations forbidden by the Civil Law page 446 447 Pillage what page 480 Pipin the Father of Charles the great attended with one only Souldier killed his Enemy in his Tent page 463 Pirates being subdued no triumph granted 451. against them every Prince makes War 384. they are not capable of making a solemn War 378. what they take alters not the property 492. though they use some equality amongst themselves yet they make not a civil society 450 451. which they may do if leaving their Piracy they settle under wholsome Laws page 451 What Right is given to Pirates and Robbers as such cannot by way of punishment be taken away 202 203 they cannot claim the right of Embassies page 205 206 207 The Pirate Diomedes his answer to Alexander page 414 By a Pirate or Robber what is taken may be recovered page 203 Pirates or Thieves how different for a Nation doing some unjust things 450. some Nations live by Piracy 451. War with Pirates and Subjects no just War page 454 Pyrrhus in danger to be poysoned by his Physician was forewarned by the Romans page 461 Places unoccupyed are the first Occupants 81. and persons freely surrendered not to be restored unless so agreed page 545 546 To Plant in another soyl no ground of War page 406 Plants whether theirs whose the spoil is page 139 Pledges he that takes to what bound 160. an agreement about them how understood 556. how engaged the Right of redemption how lost ibid. To Penitents whether all Punishments be remitted page 372 Poison not allowed against a Prince though an Enemy page 462 To Poyson Springs Weapons against the Law of Nations but not to corrupt Waters otherwise page 461 462 Polygamy not forbidden the Patriarchs nor under the Law 16 17 105. allowed by most Nations page 106 Pompey enters the Temple at Jerusalem by the Right of a Conquerour page 466 467 The Pope not universal Bishop 408. nor hath he any jurisdiction in temporal things much less over Kingdoms ibid. delivers the ornaments of the Empire to the Emperour by what Right 145. and Crowns him as a King of the Romans page 144 145 Possession may be acquired by another 472 of creatures wild got by instruments and not by wounding but by taking them page 135 Possession long confirms a private Right but is of no force against different Nations though sometimes pleaded 97. immemorial and uninterrupted transfers Dominion by the Law of Nations page 100 The Right of Possessing thing moveable may by Law be anticipated page 89 Possession unjustly gained and a sentence unjustly past have some effects of a just Right 415. after three hundred Years restored by the Emperour Honorius to the Ancient Occupants page 492 Things long out of Possession to require vain page 98 Possession long much favoured in Empires and why page 99 100 The Present Possessors Right is best if in doubt page 82 414 Of things twice sold his title is best that first got Possession page 161 The Posterity of Slaves are Slaves page 481 Postliminy what its original 487. by it some things return and some received 488. if they escape to Friends or Associates ibid. in force as well in Peace as War ibid. in Peace it belongs to such as are unfortunately found among Enemies ibid. by it Freemen are said to return but Horses Mules Ships to be received 489. by it a Freeman returns free when ibid. so may a People or Nation 490. but not they that surrender themselves 489. by it how Servants are received and how Fugitives page 491 Of Postliminy moveable Goods what not capable 492. Lands whether capable ibid. Postliminy in force not amongst Enemies only but Strangers ibid. how this may now take place ibid. by it who may return in Peace and who not page 488 Power what 3. the Civil wherein it consists 36. the supreme what 37. the Subject in whom it is ibid not always in the People ibid. Supreme some but temporary 39 40. Civil called by Peter an humane and by Paul a Divine Ordinance in what sense page 60 The Power of Fathers over their Sons with the Romans page 104 Power supreme may be obliged by the facts of their inferiour Officers and how 563 564 565. must have some Prerogatives page 101 All Power is given to the Lord over his Slave and why page 482. Power over his own life no man hath page 380 The Power that common
us in Political Consultations 419 Of Rule or Dominion the desire with the consent of the People to be ruled no cause of War page 407 S. SAbacon converted capital punishments into servile works page 372 Sabbath the symbol of the Creation 387. its Law more indispensable than any other ibid. its breach why punished by Death ibid. driven away by the danger of life 59. made for the refreshment of Servants page 521 Sacred things in what sense publick 465. whether subject to the licence of War ibid. 466. rendered by their City cease to be sacred ibid. made prophane by the consent of the People ibid. in war to be spared page 515 Sacriledge in War not punishable page 465 It is Sacriledge to violate Temples and Altars page 515 Sacreligious persons to be cast out unburyed page 219 Safety of the Conquerour how provided for page 525 526 Safety of the whole consists in the preservation of its parts and so on the contrary page 57 Safe-conduct to such a place how understood 568. how far it extends to persons Goods or Attendants 544. what it implies page 560 The Saguntines case discust page 193 Sampsons Death page 219 Sanedrin called Gods page 47 Satisfaction to be demanded before War be denounced 367. to be tendred by him that hath offended 77. if refused justifies a War ibid. Saul whether he dyed impenitent page 219 Scarcity of money and provision shortens a War page 511 Schoolmen their singular modesty Pref. xix their opinion concerning Lying and Equivocation 444. the generality follow St. Augustine ibid. Scriptures what they barely recite and reprove not we ought not to condemn 449. to understand two main helps page 25 Sea taken either universally or in its parts whether occupyable 80. it cannot be possest because not bounded ibid. may be held in propriety and how 89. near the shore occupyable by the Law of Nature 90. filled up and let in to the Land by the Romans 90 91. serves for three uses Water Fishing and Navigation page 80 The Seas Empire over it parts how lost page 92 93 Sects all hold somewhat that 's true none infallible Pref. xvi Self-murder not valour but madness page 218 219 The Sentence doth not properly give a Right 448 449. sometimes divided sometimes conjoyned page 113 Sepultus and Humatus the difference page 214 Sepulchres subject to the Conquerour by the Law of Nature page 467 Sergius Paulus a Magistrate after his conversion page 20 Servus quasi servatus page 482 Servants may do what is unjust and yet be just 429. not punishable for what they do being commanded ibid. not Judges of their Masters commands but Executioners ibid. not examined by the Romans without torture 28. prohibited by the Canon to forsake their Masters how understood 116 117 483. whether they may resist their Master ibid. or take reward for their labour ibid. if good to be used as Brethren page 520 Servitude by way of punishment 117. its degrees ibid. not repugnant to Nature 115 116. perfect and imperfect page 115 The Severity of the Roman Laws towards the Conquered page 503 See Slaves Severity then seasonable when delinquents are few page 37 Severity extreme too near a Neighbour to Cruelty 456. of Lords justifies the Servants flight page 116 Sex preferred in Succession to Kingdoms before Age page 128 Signs testifying the consent of the will page 98 Significations though improper sometimes admitted page 193 Ships when said to be taken 470. of War with the Tackle and Ordnance taken the Kings 480. if they hurt any whether the Master stands obliged 204. where are many Innocents whether to be battered with Ordnance page 434 Shores how common and how held in propriety 90. forsaken by the River whose 138. are the Occupants Sheds for shelter may be built thereon page 85. Silence when taken for consent 98 99. if not free works nothing ibid. Simulation in War laudable to deceive an Enemy page 137 138 139 Simplicity of our first Parents wherein page 79 Single Combats from whence 368. in what cases lawful page 76 Sins re-acted aggravates the punishment 379 the most customary the more severe 382. differ with mens age and complexion 380. of humane infirmity not punishable by humane Laws 374. some unavoidable to some complexions 375. visited upon Parents and their Children what 402. against the second Table their degrees page 379 To Sin he that urgeth another sins himself page 445 446 Sisters two to marry Anciently lawful page 111 A Slave what 115 116. not to resist his Lord 483. too severely used may fly 116 117. taken in an unjust War and making an escape whether he may carry any thing with him 483. what ere is done unto him is unpunishable ibid. hath nothing of his own page 483 484 Of Slaves a multitude cannot constitute a City 486. some permitted to make their Will 523. in cases of Famine or Cruelty they may appeal to the Magistrate ibid. A Slave may merit from his Lord and raise himself a stock 522. not to be killed nor too rigorously punished nor oppressed with over hard labour 520 521 522. after very hard service rewarded with freedom and not to go away empty handed 523. to be used as an hireling 521. the Hebrews and Romans very merciful to them page 520 Where Slavery is not in use exchange of Prisoners and ransome succeeds page 523 Society the foundation of Law Pref. iv v. and reason mans best weapons ibid. A Society and a City how they differ page 50 Civil Society an human institution page 59 Society not to be kept by the Hebrews with whom page 184 Societies of ensurance against dangers page 164 Societies where work is set against Money ibid. In Societies the major part obligeth the whole 113. what Right they have over their members page 114 Societies with prophane what and how far dangerous and how they may be avoided page 186 Where divers Societies have unequal shares how the votes are to be reckoned page 114 Societies hold not where any one part have no hopes of gain page 163 164 Societies Naval page 164 Social War its division page 183 See Associates Sojourners in times of Peace may in War be made Captives page 472 To Solicite Subjects to betray their own Prince unlawful page 445 Soil lying waste may be given to Strangers page 85 Sold twice whose they are page 161 Solemn War cannot be but between Soveraign Princes 252. it hath its peculiar Rights page 456 480 A Son when he may accuse his own Father of Treason page 209 The Son born before the Father was King preferred before him that was born after page 131 Sons Adopted whether capable of Succession page 127 128 Sovereignty not lost by a promise of any thing that is not of natural or Divine Right 45. nor by misgovernment lost page 73 Souldiers to chuse their General dangerous 143 144. straggling from the Army and Plundering may be killed 374. of Fortune fight for Plunder and Pay 426. lives most miserable
ibid. common worse than Hangmen ibid. most backward to fight most forward to plunder 476. bound by Oath not to embezel the spoil 478. how they march inoffensively in a Country at peace 531. their Swords sealed in their Scabbards ibid. Souldiers straggling and plundering to be assaulted as Thieves page 374 Specification page 88 139 Speech proper to man Pref. iv Spies to send allowed by the Law of Nations 463. yea and to kill them being discovered ibid. Spoil taken from an Enemy whose 471. disposed of by the General 474. sold by the Questor and the Money brought into the Treasury without diminution 474 475. sometimes divided amongst the Souldiers 475. sometimes parted by Plunder 476. whereof the General might take what he pleased 475. sometimes to them that had contributed extraordinarily to the maintenance of the War 477. sometimes between the Souldiers and the State 478 479. sometimes to the maimed and to Widows and Orphans 479. sometimes imparted to our Associates in War 478. and to Reformadoes 479. may by an antecedent Law be decreed to publick uses 478. sometimes embezeled and the Commonwealth robbed ibid. taken by publick Acts the Commonwealths but by private theirs that take them ibid. of a Town if stormed the Souldiers if surrendred the Commanders page 479 Sponsions what 187. how far a General bound if the King refuse 188. at Caudis and Numantia obliged the Army not the People of Rome ibid. made by Generals Leagues by Kings page 179 Sponsors in War how far bound 180. their Estates may be sold their Persons enslaved but their Prince not obliged page 188 So Steal away the heart what it means page 441 Stipulation is the sign of a deliberate mind page 152 The Stock of a Slave may be taken from him in what cases 522. how far his Lords and how far his page 521 The Stoicks dispute much about words 376 377. they account it wisdom to know when and where to lye page 440 To Strangers to deny marriage unlawful 86. their Goods not subject to the supereminent power of Kings 178. they must observe the Laws and Customs of those they live with 81. to rob them anciently an honourable Trade 182. how they should judge of things taken in War 480. how a Right may arise by the Civil Law 141 their Goods may be detained for our or our Subjects Debts page 448 Subjection mutual between King and People refuted 41. publick what 117. sometimes requires protection page 422 Subjects sometimes called Servants 42. when they may safely engage in a just War 43. their Goods may be seized for the Debts of their society 448. how their Right may lawfully be taken from them 178. but not without just cause 179. may justly make War 427. what they may do if the cause be unjust ibid. or if they doubt not to execute the wicked commands of their Prince 428. not punishable for their Princes sin properly 411. of an Enemy may every where be presented unless protected by another Prince page 458 A Subject not to be sollicited to kill his Prince nor a Souldier his General 462. bound by the sentence of a Judge but so are not Strangers 448. being invaded the Peace is broke 549. not if Pirates ibid. fight under an Enemy whether it breaks the peace ibid. whether they may be compelled to be Hostages 555. and how ibid. of another Prince whether they may be defended page 425 Subjects not to resist the supreme Power proved by the nature of humane Society and Gospel 54 55. their liberty liable to the fact of their Prince 447. as to them a War may be on both sides just 429 430. taken in an unjust War to be delivered to their Prince 529. may make War against their Magistrates being authorized by the Supreme Power page 53 Subjection by way of punishment 117. Civil 485. Despotical ibid. mixt 486. perfect and imperfect page 116 117 Success good of bad designs no encouragement Pref. xii Succession is the continuation of an old Title in the same Family 42. makes men and Kingdoms Immortal 117. Males preferred before Females and the Eldest before the Youngest 128. to Kingdoms not to last beyond the time of the first King ibid. the Laws are divers concerning it 126. to an Intestate 122. what if childless 127. to an Estate newly gained 126. in Kingdoms Patrimonial how guided 127. Representative what 124. not known to the Germans till lately 126. Lineal Agnatical 130. Cognatical 129. that always respects the proximity to the first King 130. in Kingdoms indivisible to the Eldest 127. wherein the elder Brothers Son is preferred before the younger Brother 132. the Sisters Son before the Kings own Son 130. who shall be Judge of it if in doubt 131. of the Nephew before the Vncle is but of late page 132. Succession to Kingdoms the same as to other Estates when that Kingdom was first established 129. wherein the Antenate is preferred before the Postnate if the Kingdom be indivisible 131. why descendent rather than ascendent page 123 124 The Successor bound by the Contracts of a King 178. and how far page 179 Suffer a man may by occasion of anothers sin and yet not for it page 400 401 Suffrages how to be reckoned where divers Societies claim by unequal shares page 114 Superiours how they may lye to their Subjects 443. what they may do about the Oaths of their Inferiours 173 174. may compel their Inferiours not only to that which is justly due by Justice but by any other Vertue page 423 Suppliants liable to the licence of War 461. their Right to whom due 396 397. to be protected until the equity of their Cause be known 399. to be spared 508. unless guilty of some crimes deserving death ibid. Supplies sent to an Enemy by Neuters page 435 See Relief Supreme Power what and in whom 37. not in the People 37 38. it may be divided into Parts subjective and potential 46. not lessened by consenting that their acts shall be confirmed by the Authority of the Senate ibid. A Surety suffers not for the Debt but for his Engagement 400 401. not to be troubled unless the Principal be insolvent page 518 To Surrender unless succours come how to be understood page 531 Swallows feed their Young by turns page 123 T. TAlio not to extend beyond the person page 508 See Retaliation Talio bought off by the Jews page 371 Taxes that maintained the War restored by Fabritius page 477 The Temple at Jerusalem entred into by Pompey and burnt by Titus 466 467. its religious sanctity page 466 The Temples of the Gentiles burnt by the Jews ibid. Temples in War to be spared 514. to violate them Sacriledge page 515 Temptation vehement excuseth in part page 378 Terminus would have no bloud shed in his Sacrifices page 526 Territory whence 470. with what is fixt therein being taken in War is the Kings page 472 Terrour alone gives no internal Right to kill page 508 Testament wanting some formality what effect it
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
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