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WAR is the State of those that contend by Force, as they are such. Which gene∣rall Description com∣prehends all sorts of War that we shall speak of. For I ex∣clude not here the Private, which indeed hath priority, and without question hath the same nature with the Publique; and therfore may properly be denoted by the
same word. But if the name of War beat any time given only to the Publique, it is as many other generall words are, often applied particularly to that * 1.1 Species that is most excellent.
LAW, taken in the largest sense, is a Rule of Moral Actions, obliging to that which is Right. We say Ob∣liging; For Counsells and other Pre∣cepts, though right, yet not obliging, are not called Laws; and Permission properly is not the Action of Law, but the Nega∣tion of that Action, unless as it obligeth some other not to hinder him that is per∣mitted. We said, obliging to that which is Right, not simply to that which is just; because it pertains not to Justice only, but to other vertues * 1.2. The best division of Law is out of Aristotle, into Natural and Voluntary.
NAtural Law is the Dictate of right Reason * 1.3 shewing moral turpitude,
or moral necessity to be in some act, by its convenience or disconvenience with the Rational Nature: and consequently that it is forbidden or commanded by the Author of Nature, God. The Acts, con∣cerning which is •…•…ant •…•…uch a dictate, are due, or unlawfull of themselves, and therefore are conceived necessarily to be commanded of God, or forbidden. By which note, this Law differs not from hu∣mane only, but from the Divine vo un∣tary; which doth not command or forbid what is by it self and in its own nature, due or unlawfull; but by forbidding makes the thing unlawfull, and by commanding makes it due. For the better understand∣ing of Natural Law, we must observe, some things belong unto it not properly, but reduct vely, viz. the things whereto the Law Natural is not repugnant: So are things called just, which are without in justice. Sometimes also by abuse of the word, the things which Reason alloweth for honest and better than the opposite, although they be not due and necessary, are said to be of the Law Natural. Ob∣serve farther, this Law is not only con∣versant about things not subject to human pleasure, but about many things also which are consequent to the Acts of Mans Will. So the Will of Man introduc'd Dominion, such as is now in use: But, that being intro∣duc'd, the law of * 1.4 Nature tells me 'tis wick∣ednes for me to take away, without thy
consent, that which is under thy dominion. * 1.5 Moreover the Law of Nature is immuta∣ble: yet somtimes it comes to pass that in the Acts determined by that Law, a see∣ming mutation deceivs the unwary; when in truth the Law of Nature is the same, but the matter about which it is, is chan∣ged. For example, If my Creditor ac∣counts the debt I owe him as received, I am not bound to pay: The reason is not, because the Law of Nature is become more indu•…•…gent, & requires me not to pay what I owe; But because by the indulgence of my Creditor the debt is forgiven me. So if God command a person to be slain, or his Goods to be taken away, it will not follow that Man-slaughter or Theft is lawfull; which words include a Vice; but the act is not Manslaughter or Theft which is done at his command who is su∣preme Lord of our Lives and Goods. Last∣ly, there are some things that do not sim∣ply, but in such a state of affai•…•…s, belong to Natural Law: as the common use of things was natural before Dominion was introduced; and before positive Laws, eve∣ry man had right to get his own by force.
AS for that distinction extant in the Roman Law-Books, between the immutable Law, common to other Crea∣tures with men, (cal'd the Law of Na∣ture;) And that which is proper to men a∣lone, (usually called by them the Law of Nations,) it is of very little or no use. For no nature, that hath not the use of ge∣neral precepts, is properly capable of a Law * 1.6. If at any time * 1.7 Justice is at∣tributed to the brute creatures, it is im∣properly, for that there is in them some shadow and print of reason. Whether the act it self, determined by the Law of Nature, be common to us with other creatures, as the breeding up of our Is∣sue; or proper to us, as the worship of God, it is not in this respect mate∣rial.
A Thing is proved to be of Natural Law two ways, à priori, or à po∣steriori. That way of proof is more sub∣til, this more popular. The proof is à priori, if we shew the necessary conve∣nience
or disconvenience of any thing to the rational and social nature; à po∣steriori, if, though not with full certain∣ty, yet very probably, we conclude that to be a point of Natural Law, which is receiv'd for such amongst all, or at least the most civil Nations. For an univer∣sal effect hath an universal cause; and of so generall an opinion, there can hardly be any other cause, but sense it self which is called common * 1.8. But I said, with good reason, the * 1.9 more ci∣viil Nations; for as the Philosopher hath it, * 1.10 What is natural we must judge by those in whom nature is least corrupt, and not by the depraved. * 1.11
THe other kind of Law is Voluntary, which draws its original from the will. And this is either Divine, or Hu∣mane Law. We begin with Humane, be∣cause more known. And this is either Civil, or of larger extent, or of less ex∣tent than Civil. The Civil Law is that which proceeds from the Civil power. The Civil Power is that which rules the Common-wealth. And a Common-wealth
is a society of Freemen united for their common benefit. The Law of less extent, and that comes not from the Ci∣vil power, though subject to it, is vari∣ous, conteining the precepts of Fathers, Masters, and such like. That of larger extent is the Law of Nations, i. e. which by the will of all, or of * 1.12 many nations hath received force to oblige. I adde, of many, because there is scarce found any Law, besides the Natural, (which is al∣so called the Law of Nations) common unto all. Y•…•…a, oft-times in one part of the world, there is not the same Law of Nations as in another: as we shall shew hereafter. This Law of Nations is pro∣ved in the same manner with the un∣written Civill Law, by continual use and the testimony of skilfull men. And to this purpose Historians are of singular profit.
VOluntary Law Divine (as the words at first sound inform us) is that which hath its rise from the will of God; whereby it is distinguished from Natural Law, that may be also, as we have said, entituled Divine. Here hath place that indistinct * 1.13 saying: God wills it not, because 'tis just; but 'tis just, (i. e. due in Law) because God wills it. This Law was given either to mankind,
or to one people; thrice to mankind; presently after the creation, again in the restauration after the floud, lastly in that more sublime restauration by Christ. All these Laws doubtless oblige all men, after they have sufficient notice of them.
THe Hebrews were the only people in all the world, to whom God pe∣culiarly gave his Laws, as Moses, and the Psalmist tell them. And certainly * 1.14 those Jews are out (one is Trypho in his disputation with Justin) who think all strangers, if they will be saved, must take upon them the yoke of the Hebrew-Law. No Law binds them to whom it was not given; To whom this Law was gi∣ven, the Law it self speaketh, Hear O Israel! With them the Covenant is made; They are taken for a peculiar people of God, as Maimonides confesseth, and proves out of Deut. 33. 4. Amongst the Hebrews indeed there alwaies lived some strangers * 1.15 that feared God, such as Cor∣nelius, Acts 10. and the worshipping Greeks, Acts 17. These, as the Hebrew Masters say, were bound to observe the Laws given to Ad•…•…m, and to Noah, namely to abstain from Idols and from blood: but to the proper Laws of the
Israelites they were not bound. The Prophets when they Preacht unto the Gentiles never imposed on them a ne∣cessity to submit to Moses Law. And the Jews in * 1.16 Josephus said well, that God might be worshipt and his favour obteind without circumcision * 1.17. For, the reason why many strangers were circumcised, and by circumcision bound themselves to the Law (as Paul explains it) was to procure the Privileges of that Common-wealth (for such Proselytes * 1.18 had the same right with native Israe∣lites) and to partake of those promises which were not common to mankind, but peculiar to the Hebrew people. Ye•…•… I deny not, in after times it grew to an erronious opinion in some, as if without Judaisim were no salvation. That we are bound by no part of the Hebrew Law, as it is properly Law, we collect hence, because all obligation, except by the Law of nature, comes from the will of the Law-give•…•…: but, that it was the will of God, others besides the Israelites should be holden by that Law, we have not the lest intimation. Wherefore, as to us, there is no abrogation of that Law; for how could it be abrogated in respect of them whom it never obliged? From the Israelites indeed is the bond taken off, as to Rituals, presently after the first publication of the Gospell (which was revealed to Peter Acts 10.) and as to
other points, after that people by the o∣verthrow of their City and their utter desolation, without all hope of restitu∣tion, ceased to be a people. But, for us foreiners, we obteined not this by the comming of Christ, to be freed from Moses Law: but, we who before had only an obscure hope placed in the good∣ness of God, are now susteined with a perspicuous Covenant, and the Hebrews Law, the partition Wall between us, being taken away, we are incorporated with them into one Catholick Church.
NOw, seeing the Law given by Mo∣ses cannot induce upon us a direct obligation, as we have shewed; let us see what other use it may have, both in this of War, and other the like questions. To know this is very usefull to many purposes. First then, the Hebrew Law doth manifest, that which is commanded in that Law not to be against the Law of Nature. For, the Law of Nature, as we have said, being perpetual and immutable, it consi∣steth not with the justice of God to com∣mand any thing contrary unto it. More∣over, the Law of Moses is called pure and right by the Psalmist; and, by the A∣postle, * 1.19 holy, just and good. I mean the
precepts; for, of the permissions we must speak more distinctly. Legall permission (for that which is meerly of fact, and signifies removal of the impediment, is not pertinent here) either is plenary, which gives a right to do a thing law∣fully; or less than plenary, which on∣ly gives impunity among men, and a right that no other can lawfully hinder the doer, From the former permission, as from a pr•…•…cept, it follows, that the thing permitted is not against the Law of Nature: not, from the later. But this consequence seldom is of use: be∣cause, the permitting words being am∣biguous, we must rather, by the Law of Nature, interpret what kind of permis∣sion is meant, than from such a kind of permission prove it to be the Law of Nature. Our second observation is, That it is now lawfull for Christian Gover∣nours to make Laws of the same sense, with the Laws given by Moses: unless the whole substance of any Law con∣cern the time of Christ exspected, and of the Gospel not yet revealed; or, un∣less Christ himself, either in general or in special, hath ordained the contrary. For, no other reason can be ima∣gined, why any of Moses constitu∣tions can be now unlawfull. A third observation's this: Whatsoever pertai∣ning to the vertues Christ requires of his Disciples, is given in precept by Moses,
the same is now also, if not more, to be perform'd by Christians. The ground of this observation is, that the vertues re∣quir'd of Christians, as Humility, Pa∣tience, Love, are requir'd in a greater degree * 1.20 than they were in the State of the Hebrew Law. And justly, because al∣so the heavenly promises are much more clearly proposed in the Gospel. Hence, in comparison of the Gospel, is the old Law said to have been neither perfect nor faultless; and Christ is call'd the end of the Law; and the Law a School∣master to bring us unto Christ. So, that old Law of the Sabbath, and that other of Tithes * 1.21 do shew, that Christians are oblig'd to separate no less than a seventh part of their time for Gods service; nor less than a tenth of their fruits, for the maintenance of his Ministers, and the like pious uses.
WE said afore, when the question is about the Law of Nature, the * 1.22 meaning is, whether a thing may be done, not unjustly: and, that is un ust which hath a necessary repug∣nance to the rational and social Nature. Now, among the first principles of Na∣ture, there is nothing repugnant unto War; there is much in favour of it. For,
both the end of War, the conservation of life and members, and the keeping or acquiring of things usefull unto life, is most agreeable unto those principles: and, if need be, to use force to that purpose, is not disagreeable, since every living thing hath, by the gift of Nature, 〈◊〉〈◊〉 strength, to the end it may be able to help and defend it se•…•…f. Galen * 1.23 saith, that Man is by nature fitted for Peace and War; though comming into the world unarmed, yet he hath a hand fit * 1.24 to provide and to handle arms; which also Insants, we see, of their own ac∣cord without a teacher make use of for a weapon. So Aristotle * 1.25 saith, the hand is to man instead of a spear, of a sword, of any arms whatsoever; because it can * 1.26 take and hold all. Moreover, Right rea∣son and the nature of society inhibites not all force, but that which is repug∣nant to society, that is, which depriveth another of his right. For the end of so∣ciety is, that by mutual aid every one may enjoy his own. This were so, al∣though the Dominion and propriety of possessions had not been introduced; for life, members, liberty would yet be pro∣per to every one, and therefore could not without injury be invaded by any other. And, to make use of what is common, and spend as much as may suffice nature would be the right of the occupant. Which right none could
without injury take away. This is more plain, since by Law and use Dominion is established: which I will express 〈◊〉〈◊〉 Tullies words: If every member shoul•…•… * 1.27 think to gather more strength by draw∣ing to it self the strength of the member next it, the whole body must needs 〈◊〉〈◊〉 weakned and destroyed: So, if every one of us snatch unto himself the commodi∣ties of other men, and draw away from every one what he can to advantage himself, humane society cannot stand. Nature gives leave to every man, in the acquisition of things usefull, to supply himself before another; but by the spoili of another to encrease his own store, that nature doth not permit. It is not then against society to provide for one self, so that anothers right be not diminished: nor is that violence unjust, which doth not violate the right of another, as the same Author saith: Of the two kinds of contention, by debate, and by force, the one agreeing to men, the other more becom∣ing beasts, we must fly unto the later, when the former will not serve. And elsewhere: * 1.28 What is there that can be done against force, but by force? Ulpian saith: Cassius writes, that it is by nature lawfull to repell force by force; and arms by arms. * 1.29
THis is further proved out of the sa∣cred History. For when Abra∣ham having armed his servants and friends, pursued the four Kings that had spoiled Sodom, and returned with vi∣ctory, God by his Priest Melchizedeck approv'd his action. Blessed be the most high God, said Melchisedeck, who hath * 1.30 deliver'd thine enemies into thine hand. Abraham, as appears by the story, had taken Arms without any special com∣mission from God: therefore the Law of Nature was his warrant, whose wisdom was no less eminent than his sanctity, even by the report of aliens, namely of Berosus and Orpheus. The History of the seven Nations, whom God gave up to be destroyed by the hand of Israel, I shall not use: because there was a spe∣cial mandate to execute Gods judge∣ment upon people guilty of the greatest crimes; Whence, in the Scripture, these VVars are properly called the VVars of God, undertaken by his command not by humane Coun•…•…el. It is more perti∣nent, that the Hebrews, under the con∣duct of Moses and Joshua, when they were opposed by the Amalekites, re∣pulsed them by Armies. The Action was * 1.31
not set upon by Gods command, yet was it approved by him after it was done. Moreover, God hath prescribed to his people general and perpetual Laws of waging VVar, thereby shewing, VVar * 1.32 may be just even without his special mandate. For he doth plainly distinguish the cause of the seven Nations from the cause of other people: and prescribing nothing about the just causes of entring into VVar, thereby shews them to be manifest enough by the light of nature, as t•…•…e cause of defending the frontiers in the VVar of Jephtha against the Am∣monites; and the cause of Embassadors * 1.33 violated in the VVar of David against * 1.34 the same. It is also to be noted, which the divine writer to the Hebrews saith, that Gedeon, Baruc, Sampson, Jephtha, David, Samuel and others, by Faith o∣verthrew * 1.35 Kingdoms, prevailed in VVar, put to flight the Armies of Aliens. Where, in the name of Faith, as we learn by the series of that discourse, is included a persuasion whereby is belie∣ved that the thing done is pleasing un∣to God. So also the wise woman saith of David, that he fought the battails of God, that is, pious and just. * 1.36
THe greatest difficulty lies in this point, concerning the positive Di∣vine Law. Nor may any object, the Law of Nature is immutable, and there∣fore nothing could be constituted by God to the contrary; for this is true in things commanded or forbidden by the Law of Nature; not in things per∣mitted only: which things, being not properly of the Law of Nature but with∣out it, may be either forbidden or com∣manded. First then, against VVar is brought by some that Law given to No∣ah and his posterity: And surely (saith * 1.37 God) Your blood of your lives will I re∣quire: at the hand of every beast will I require it; and at the hand of man, at the hand of every mans Brother will I require the life of man. Who so sheddeth mans bloud, by man shall his blood be shed: for in the image of God made he man. Here do some most generally un∣derstand that which is said of requiring blood: and what is said of shedding blood for blood, they will have to be a commi∣nation, not an approbation. I can al∣low of neither; for the prohibition, not to shed blood, is not of larger extent than that in the Law, Thou shalt not kill:
and this, 'tis manifest, hath neither ta∣ken away capitall punishments nor VVars. VVherefore, both this Law and that doth not so much constitute any new thing, as declare and repeat the old naturall Law obliterated and depraved by evill custom. And the words are to be understood in a sense which includes a crime: as in the wor•…•… homicide, we understand not every kil∣ling of a man, but that which is on pur∣pose and of an innocent person. The which follows, of shedding blood for blood seems to me not to contain a naked act but a Right. I explain it thus. By na∣ture it is not unjust, that every one suf∣fer as much evill as he hath done; 〈◊〉〈◊〉 * 1.38 of a sense of this naturall equity, 〈◊〉〈◊〉 accus'd of paricide by his own con∣science said, Whosoever findeth me she flay me. But, God in those first times * 1.39 either by reason of the paucity of men or because there being yet but few offen∣ders, exemplary punishments were 〈◊〉〈◊〉 necessary, repressed by his edict th•…•… which seemed naturally lawfull, and ap∣pointed the manslayers company to be avoided, not his life taken away. The like was decreed by Plato in his Laws, and of old practized in Greece * 1.40. Per∣tinent is that of * 1.41 Thucydides: Antiently
great crimes had little punishments * 1.42: but in progress of time, those being con∣temned, death was inflicted. From one notable act a conjecture being made of the divine pleasure went into a Law: so that Lamech also, upon the like crime committed * 1.43, promised to himself impu∣nity from that example. Nevertheless, * 1.44 when before the floud, in the Gyants age, a promiscuous licence of shedding blood had prevailed, mankind being a∣gain restored after the floud, God, to re∣strain that licence, thought it meet to use more severity; and laying aside the lenity of the former times, permitted now what nature did before dictate not to be unjust, that he should be guiltless who slew the man-slayer * 1.45. This, af∣ter Courts of Justice were established, was upon very great reasons restrained to the Judges only: yet so that some Print of the former custom was seen, e∣ven after Moses Law, in his right, who was the next Kinsman to the person slain. We have no mean Author to countenance our interpretation. Abra∣ham, who being not ignorant of the Law given to Noah, took arms against the four Kings, not doubting but his enter∣prize was very reconcilable with that Law. And Moses too gave order that the Amalekites violence should be with∣stood by Arms, using the right of nature: for it appears not that God was consul∣ted * 1.46
with in this. Moreover, capitall pu∣nishments, it appears, were used not a∣gainst man-slayers only, but other Ma∣lefactors; * 1.47 and that as well among the holy people as other nations. By the aid of naturall reason, having some ground to make conjecture of the divine will, they proceeded from like to like, and collected, that the constitution a∣gainst the man-slayer, might extend al∣so to other notorious and great offen∣ders. For, some things there are e∣quall unto life, as reputation, virginall chastity, conjugall fidelity; or without which life cannot be secure, as reverence to authority, whereby society is preser∣ved: Offenders against these seem no better than man-slayers. Hither per∣tains an old tradition extant among the Hebrews, that more Laws were given unto Noah's Sons by God, but Moses did not relate them all, because it was sufficient for his purpose, that they were after comprehended in the peculiar Law of the Hebrews; so, against incestuous Marriage, there was extant an old Law, though not remembred by Moses in its place, as appears Levit. 18. And among the Laws God gave to Noah's children, this also they say was decreed, that not only homicides, but adulteries, incests and rapes should be punished with death; which is confirmed by the words of Job. Also, the Law given by Mo∣ses
* 1.48 addes unto the capitall sanctions, reasons, that are of no less value among others, then among the Hebrew people: peculiarly it is said of homicide, that the earth cannot be purged but by the blood-shed of the man-slayer * 1.49. Be∣sides, it is absurd to think, the Hebrew * 1.50 people were allowed to secure their Go∣vernment, and the publick and private safety, by capitall punishments, and to bear Arms for their own defence, but o∣ther Kings and Nations at the same time were not allowed to do so; and yet were never admonisht by the Prophets for using capital punishments and ma∣king VVar, as they were oft reprov'd for other sins. Yea on the contrary, who would not believe, seeing Moses Judicial Law is an express of the divine pleasure, other Nations who would take a Copy thence, did well and wisely: as it is probable the Greeks, especially the A∣thenians did? whence there is so great similitude in the old Attick Law, and the of-spring thereof, the Roman of the 12. Tables, with the Hebrew Laws. This is enough to shew, that the Law given to Noah is not of such a sense as they would have it, who impugn all VVars by that Argument.
THe objections against VVar taken out of the Gospel have a greater shew; in the examination whereof, I will not say with many, that in the Gos∣pel, beside the precepts of Faith and the Sacraments, nothing else is found but what is of Natural Law; for, as most understand this, it is not true. This I willingly acknowledge; in the Gospel nothing is commanded us, which hath not a natural honesty and comeliness; but, that we are not further obliged by the Laws of Christ, than we are by na∣tural Law, I cannot grant. It is mar∣vellous to see what pains they take, why are in the other opinion, to proove the things forbidden by the Law of Nature, which by the Gospel are made unlaw∣full, such as are concubinacy, divorce prolygamy * 1.51. Things indeed of such: nature, that to abstain from them, rea∣son it self tells us is more honest and be∣comming: Yet not such, as contain in them (set the divine Law aside) any apparent wickedness. And who can say, nature hath bound us to that which the Christian Law gives in precept, to * 1.52 lay down our lives for the brethren? It is a saying of Justin Martyr * 1.53, To live according to nature is his duty, wh•…•… hath not yet attained to the Faith of
Christ. Neither will I follow their conjecture, who suppose Christ in his Sermon on the Mount, was only an In∣terpreter of Moses Law. These words * 1.54 of his so oft repeated have another sound: Ye have heard, that it hath been said to them of old: but I say unto you. Which opposition, and the Syriack and other versions proove the truth of that reading, to them (not, by them) of old. Those of old, or the antients, were no other than they that liv'd in Moses time; for the commands rehearsed as spoken to the antients, are not the sayings of the Lawyers, but of Moses, either word for word, or at lest in sense. Thou shalt not kill. Whosoever shall kill shall be in * 1.55 danger of judgement. Thou shalt not * 1.56 commit adultry. Whosoever shall put a∣way * 1.57 his Wife, let him give her a wri∣ting of divorcement. Thou shalt not forswear thy self, but shalt perform unto * 1.58 the Lord thine oaths. An eye for an eye, * 1.59 and a tooth for a tooth (understand thou mayst require in the Court of judge∣ment.) Thou shalt love thy neighbour * 1.60 (i. e. the Israelite) and hate thine ene∣my (i. e. the seven Nations * 1.61, to whom they might not shew friendship nor pit∣ty: to these the Amalekits are to be added, against whom the Hebrews are commanded to have VVar for ever.) But, to understand the words of Christ we must note, that the Law given by
Moses may be taken two ways: ac∣cording to what it hath common with other Laws, made by men, restraining the greater offences with fear of open punishments, and hereby containing * 1.62 the Hebrew people in the state of civil society; in which sense it is called the Law of a carnal Commandement, and the * 1.63 Law of Works: Or, according to what is proper to the divine Law, as it requires also purity of mind, and some acts, which may be omitted without tem∣porall punishment; in which sense it is called a spiritual Law, re oycing the * 1.64 heart. Now the Lawyers and Pharisees, contenting themselves with the form•…•… part, neglected the second, which is the better part, nor did they inculcate it into the people. The truth of this ap∣pears not only in our Books, but in Jo∣sephus also and the Hebrew Masters Moreover, as to this second part, we must know, the vertues exacted at the hands of Christians, are either commen∣ded or commanded to the Hebrews also, but surely not commanded in the same degree and latitude * 1.65 as they are to Christians. In both senses Christ op∣poses his precepts to the old ones:
whence it is manifest, his words contain more than a naked Interpretation. The knowledge whereof conduces both to our present matter and to many other things, lest we strein the Authority of the Hebrew Law beyond its reach.
OMitting Arguments of less value in our judgement, our first and prin∣cipal proof, that the Right of VVar is not wholy taken away by the Law of Christ, shall be that of Paul, to Timo∣thy. I exhort therefore, that first of all, * 1.66 supplications, prayers, intercessions, and giving of thanks be made for all men: For Kings, and for all that are in autho∣rity, that we may lead a quiet and a * 1.67 peaceable life in all godliness and honesty. For this is good and acceptable in the sight of God our Saviour: who will have all men to be saved, and to come unto the knowledge of the truth. Here we are taught three things; That it is pleasing to God, Kings should become Christi∣stians: That being made Christians, they should remain Kings; Wee pray
(saith Justin Martyr) that Kings and Princes, together with their regal pow∣er, may also attain unto a right under∣standing; and in the Book entitled Cle∣ment's Constitutions, the Church prays * 1.68 for Christian Magistrates: Lastly, that this is also pleasing to God, that Chri∣stian Kings should procure for other Christians a quiet life. How so? The Apostle sheweth in another place: He is the Minister of God to thee for good, but if thou do that which is evill, be a∣fraid: for he beareth not the sword in vain: for he is the Minister of God, a revenger to execute wrath upon him that doth evill. By the right of the sword is understood all coercive power (as in the Lawyers sometimes) yet so, that the highest part of it, which is the true use of the sword, is not excluded. For the illustration of this place much light may be had from the second Psalm: which, although it were verified of David, yet more fully and perfectly pertains to Christ, as we learn out of the Acts and * 1.69 the Epistle to the Hebrews. Now this Psalm exhorts all Kings to receive the Son of God with reverence, i. e. to do service to him, as they are Kings, as Au∣gustin explains it well: whose words are to this effect, Herein do Kings, as * 1.70 they are commanded, serve God as Kings; if in their Kingdom they command good things, forbid evill things, not only per∣taining
to humane society, but also to di∣vine Religion. And elsewhere: How * 1.71 then shall Kings serve the Lord in fear, but by prohibiting with religious seve∣rity, and punishing offences against the commands of the Lord? For he serveth one way as a man, another way as a King. Again: Herein therefore doe Kings serve the Lord, as Kings, when they do him that service, which none can do but Kings.
A Second Argument is deliver'd us by St. Paul in the place cited al∣ready in some part, out of the Epistle to the Romans: where the highest power, * 1.72 such as the regall is, is said to be of God, and is called the ordinance of God: whence it is inferr'd, that obedience and honour is to be given to it, and that from the heart: and he that resisteth it, resisteth God. If by Ordinance a thing were to be understood, which God only will not hinder, as in vicious acts, then would there follow thence no obligation either of honour or obedience, especially laid upon the conscience: nor would the Apostle say any thing, where he so much extols and commends this power, which might not agree to robbing and stealing. It follows therefore, that this power be conceiv'd to be ordained by
the will of God approoving it: whence it further follows, that, seeing God wills not contraries, this power is not repug∣nant to the will of God revealed by the Gospel, and ob•…•…iging all men. Nor is this Argument avovded, because the persons that were in power when Paul wrote, are said to have been enemies to Christian piety: For first, that is not true of all. Sergius Paulus Propraetor * 1.73 of Cyprus had given his name to Christ before this time: to say nothing of the King of * 1.74 Edessa, of whom there is an old tradition, grounded (as it seems) on truth, though perhaps a little mixed with fables. Moreover, the question is not of the persons, whether they were impious; but whether that fun∣ction in them were impious: we say, the Apostle denys that, when he saith, the function, even for that time, was or∣dained of God, and therefore to be ho∣noured, even within the recesses and secrets of the heart where God alone hath Empire. Wherefore both Nero might, and that King Agrippa too, whom Paul so seriously invites to his * 1.75 Religion, might subject himself to Christ, and retain, the one his regal, the other his imperial power: a power, which without the right of the Sword and of Arms cannot be understood. As then of old, the Sacrifices according to the Law were pious, although administred by
impious Priests; so Empire is a pious thing * 1.76, although it be in the hand of an impious Prince.
THe third Argument is from the words of John the Baptist, who being seri∣ously asked by the Jewish Souldiers (many thousands of that Nation served the Romans in their Wars, as Josephus and other writers cleerly tell us:) what they should do, to avoid the wrath of God, He answered not, that they should for∣sake VVar (as he must have answered, if that be the will of God) but abstain from violence and falshood, and be con∣tent with their wages. To these words * 1.77 of the Baptist, containing an approba∣tion of VVar plain enough, many an∣swer, The Baptists prescripts are so dif∣ferent from the precepts of Christ, that we may conceive their Doctrine not to be the same. Which I cannot admit, for these reasons. John and Christ use the same beginning, and declare the sum of their doctrine in the same words, Amend your lives, for the kingdom of Hea∣ven is at hand. Christ himself saith, the * 1.78 Kingdom of Heaven (i. e. the new Law, for the Hebrews use to stile the Law by the name of Kingdom,) began to be invaded from the days of the Baptist. * 1.79 John is said to have preached the Bap∣tism
of repentance for the remission o•…•… * 1.80 sins: just as the Apostles are said to have done in the name of Christ. Jo•…•… requires fruits meet for repentance, and * 1.81 threatens destruction to them that bring not forth such fruit. He requires works * 1.82 of Love above the Law. The Law is sai•…•… to have continued unto John: as if, 〈◊〉〈◊〉 more perfect doctrine had from him be∣gun. * 1.83 And the beginning of the Gospell is * 1.84 deduc'd from John. John himself is there∣fore greater than the Prophets: being se•…•… to give saving knowledge to the people and to Preach the Gospell. Nor doth 〈◊〉〈◊〉 any where distinguish Jesus from himse•…•… by the difference of precepts (only th•…•… things delivered by John more gene•…•…∣ly, and confusedly, and in the mann•…•… of rudiments, are more plainly and ful∣ly declared by Christ, the true light: but by this, that Jesus was that prom•…•…∣sed Messias: the King of a heavenl•…•… * 1.85 Kingdom, who should give the powe•…•… of the Holy Spirit to them that believe on him.
THe fourth Argument seems to me 〈◊〉〈◊〉 no small weight. If the Right 〈◊〉〈◊〉 capital punishments, and of defendin•…•… the people by force of Arms again•…•… Robbers * 1.86 and Spoilers, be taken away. thence will follow licence of wickednes•…•…
and a deluge as it were, and floud of e∣vils: when as, although Justice be now executed, that stream is hardly kept within the banks. Wherefore, had it been the mind of Christ, to bring in such a state of things, as was never heard of, doubtless he would in most plain and express terms have commanded, that none should give sentence of death, that none should bear Arms: which com∣mand he hath no where promulged: for, the alleged places are very general, or very obscure. Now equity and common reason shews, not only general words must be restrained, and doubtfull words commodiously explained, but the pro∣priety and received use of words some∣what declined, that a very incommodi∣ous and incoherent sense may be avoy∣ded.
FIftly, it can be evinced by no Argu∣ment, that the Judicial Law of Mo∣ses, expired before the destruction of Je∣rus•…•…lem, wherewith fell both the form, and the hope of that Common-wealth; for, neither is any term prefixed to that Law in the Law itself, nor do Christ or his Apostles ever speak of the Cessation of it, but as it may seem comprehended in the destruction of the Common-wealth, as we have said: yea, on the
contrary, Paul saith, the High-Priest was set to give judgement according to the Law of Moses. Christ himself in the * 1.87 preface to his precepts saith, He ca•…•… not to dissolve the Law, but to fulfill it; the sense of which words, as to Ri•…•…uals, * 1.88 is not obscure: for the lineaments and shadowings are filled up and complea∣ted, when the perfect species of a thing is presented to our view; as to the judi∣cial Laws, how can it be true, if Christ, as some do think, hath by his comming taken them away? But if the obligatior of the Law remained, as long as th•…•… Common-wealth of the Hebrews stood it follows, that even the Jews converted unto Christ, if they were called un•…•… Magistracy, could not shun it, and th•…•… they ought to judge no otherwise tha•…•… Moses had prescribed. Methinks, whe•…•… I weigh all things, there is not the leaf•…•… motive for any pious man, that hear•…•… Christ at that time speaking, to under∣stand his words in any other sense; Thi•…•… I acknowledge, before the time of Christ some things were permitted, (whether in respect of outward impunity, or also of inward purity, I need not determine:) which Christ hath forbidden the Disci∣ples of his institution, as, to put away ones wife for every cause, to seek reveng from the judg upon the injurious person•…•… yet, between the precepts of Christ and those permissions, there is a certain di∣versity,
no repugnance. For he that keeps his wife, and remits the injury, doth nothing against the Law, yea he doth that which the Law wills most. 'Tis o∣therwise with the Judge, whom the Law not permits, but commands to put the Murderer to death, himself becomming guilty of blood before God, unless in this case he shed it. If Christ forbid him thus to punish the murderer; his precept is plainly contrary to the law, he dissolv∣eth the law.
THe sixth is from the example of Cor∣nelius the Centurion, who received from Christ the Holy Spirit, an undoubted sign of his justification, and was Bap∣tized in the name of Christ by the A∣postle Peter: but, that he left his Office of War, or was advised by Peter to leave it, we do not read. Some answer, whereas he had instruction from Peter concerning Christian Religion, it is to be supposed that he was also instructed to desert his place. This were something, if it were certain and undoubted that Christ among the rest of his precepts had forbidden War. But, when that is no where else expressed, here at least was a fit place to say somewhat of it, that the age to come might not be ignorant
of the rules of their duty. Nor is it the manner of Luke, where the quality of the persons required a special change 〈◊〉〈◊〉 life, to pass it over with silence; as 〈◊〉〈◊〉 may see elsewhere. The seventh Argu∣ment, * 1.89 like to this, is taken from th•…•… which we began afore to say of Sergi•…•… Paulus; for in the story of his conver∣sion, there is no intimation of his 〈◊〉〈◊〉 nouncing his office, nor of any adm•…•…∣nition given him to do so. Now, th•…•… which is not related, (as even now 〈◊〉〈◊〉 said) when it is of most concernment, a•…•… the place requires it, is to be conceive not at all to be done. The eighth m•…•… be this, that * 1.90 Paul the Apostle havi•…•… understood the Jews plot against him willed it to be revealed to the chief C•…•…∣tain: † 1.91 and when the chief Capta•…•… gave him a guard of Souldiers to sec•…•… his journy, he accepted of it, maki•…•… never a word to the Captain or 〈◊〉〈◊〉 Souldiers, that God was not pleas•…•… with resisting of force by force. And 〈◊〉〈◊〉 Paul was a man, who would himself 〈◊〉〈◊〉 mit, nor suffer others to omit, no occ•…•…∣sion of teaching men their duty * 1.92.
NInthly, The proper end of a thing just and lawfull, cannot but be just lawfull. It is not only lawfull, but we have a precept obliging the conscience, * 1.93 to pay tribute; And the end of Tribute is, that the publick powers may have wherewith to defray the charge upon them, for the defence of good men, and the coercion of the bad. Tacitus speaks * 1.94 to our purpose, The quiet of the world * 1.95 cannot be had without Arms, no Arms without Souldiers pay, nor pay without contribution. Tenthly, * 1.96 Paul speaks thus, If I be an offender, or have com∣mitted any thing worthy of death, I re∣fuse not to die † 1.97 Whence I collect, that in Paul's judgement, even since the pub∣lication of the Gospel, there are some crimes, which equity alloweth, yea and requireth, to be punished with death. Which also Peter sheweth in the first of his Epistles. Had the will of God been so now, that capital judgements should cease, Paul might indeed have made an Apology for himself, but he ought not to have left in the minds of his hearers such an opinion, as this, that it was no less lawfull now than heretofore, to put offenders to death.
Now, it being proved, that capital punishments are rightly used since the comming of Christ, it is withall proved, as I suppose, that some War may be law∣fully waged, to wit, against a multitude of armed offenders, who must be over∣come in battail, before they can be brought to judgement. For, the forces of offenders, and their boldness to re∣sist, as in a prudent deliberation it ha•…•… some moment, so it diminisheth nothing of the right it self. Lastly, the Law of Christ hath taken away the Law of Moses only, which was the partitio•…•… wall between the Gentiles and the H•…•… brews. * 1.98 Things by nature honest, and by the consent of civil nations, it is so far from taking away, that it hath com∣prehended them all under the gener•…•… precept of all honesty and virtue. But * 1.99 the punishment of crimes, and Arms to keep off injury are accounted laudable in their Nature, and are referred to the virtue of justice and beneficence. And here, on the by, we must note their er∣ror, who draw the Israelites right to War, from this alone, that God had gran∣ted to them the Canaanites Land. For this is not the only cause, though it be 〈◊〉〈◊〉 just one. Before those times, men of piety, conducted by their reason, waged Wars: and the Israelites themselves af∣terward upon other grounds, as David for the violation of his Embassadors.
Besides, what any one possesseth by hu∣mane right, is no less his own, than if God had made an immediate grant there∣of; which right is not taken away (but confirmed) by the Gospel.
LEt us now also see, by what Argu∣ments the opposite opinion under∣props it self, that the pious Reader may more easily judge, which of the two is more firm and weighty. The first is u∣sually brought out of Esay's prophe∣cy * 1.100, who saith, it shall come to pass, * 1.101 that the Nations shall beat their swords into plow-shares, and their spears into pruning-hooks: Nation shall not lift up sword against Nation, neither shall they learn War any more. But this prophecy, either is to be understood (as many o∣ther) conditionally: Such shall be the state of things, if all people undertake and fulfil the Law of Christ; to which purpose God will suffer nothing to be wanting on his part: Sure enough it is, if all be Christians, and live Christian∣ly,
there will be no Wars * 1.102: Or, it is to be understood simply and purely; and thus, experience tells us, this prophecy is not yet fulfill'd, but the impletion thereof, as also of the general conversi∣on of the Jews, is yet to be waited for. Which way soever you take it, nothing can be inferred hence against the justice of Wars, so long as there are who suffer not the lovers of peace to live at peace, but offer violence and use force against them.
OUt of the fift of Matthew sund•…•… Arguments are deduced; which we cannot rightly judge of, unless 〈◊〉〈◊〉 remember what was said afore: If Christ had purposed to take away all capital judgements, and the right of Wars, he would have done it in words most ex∣press and special, by reason of the great∣ness and newness of the matter: and the rather, because no Jew could think o∣therwise, but that the Laws of Moses, pertaining to judgements and the Com∣mon-wealth, ought to have their force upon the men of that Nation, so long
as their state endured. This being pre∣mised, let us weigh the places in their order. The second muniment of the ad∣verse party is from these words, Ye have * 1.103 heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not the in∣jurious person (so the Gr. turns the ori∣ginal word, Exod. 21 * 1.104.) But whosoever shall smite thee on the right cheek, turn to him the other also. Hence do some infer, that no injury is to be repelled or revenged; neither privately, nor pub∣likely. But this is not the meaning of the words; for Christ speaks not here to Magistrates, but to those that are in∣jured; nor doth he speak of every in∣jury, but of such as a blow on the cheek: the following words restrain the gene∣rality of the precedent. So likewise in the next immediate precept, If any man will sue thee at the Law, and take away thy coat, let him have thy cloak al∣so * 1.105: Not every sute before the judge or arbitrator is forbidden (let Paul be the Interpreter, who denies not all sutes, but prohibites the Christians to con∣tend in the Courts of Heathens; and that after the Jews example, whose common saying it was, Whosoever brings the affairs of Israel before the stranger,
pollutes the name of God:) but the will of Christ is, to exercise our patience, that we should not go to Law about things which may easily be repaired, as a Coat, or (if it so happen) the cloak also: but that, although our cause be good, wee should omit the prosecution of our right. Apollonius Tyaneus said, It was not * 1.106 the part of a Philosopher to contend a∣bout a little money. The Praetor (saith Ulpian) approoves his doing, who would * 1.107 content himself and sit down with the less of a thing, rather than be troubled with often sutes about it. For this mans dis∣position, that cannot endure contention, is in no wise to be dispraised. What Ulpian here saith is approved by the best, the same doth Christ command, choosing the matter of his precepts from among the things that are most honest and m•…•… approved. But, you may not colle•…•… hence, that it is unlawfull for a Paren•…•… or for a Tutor, to defend that before 〈◊〉〈◊〉 Judge, without which the Children without which the pupils cannot to maintained. For the coat and cloak is one thing, the Lively-hood another. In Clement's Constitutions it is said of a Christian man, if he hath a sute, let him * 1.108 endeavour to end it, though he bear some damage. As in matters of morality, so here we say, these things do not consist in a point, but have a certain latitude belonging to them. So in that which
follows, And whosoever shall compell thee to go a mile, go with him twain: Our Lord said not, a hundred mile, a journey that would take a man off too far from his own occasions; but one mile, or, if need be, twain: a walk, not very irksom. The sense therefore is, in these things which import no great in∣commodity, we must not stand upon our own right, but yield, even more than another would require, that our pati∣ence * 1.109 and our benignity may be known unto all men. It follows, Give † 1.110 to him that asketh thee: and from him that would borrow of thee, turn not thou away. If you carry it on infinitely, and without measure, nothing is more hard. He that provideth not for those of his own house is worse than an infidel, saith Paul. Let us then follow the same Paul, the best interpreter of his Master's Law, who stirring up the Corinthians to exer∣cise beneficence toward the poor of Jerusalem: Not, saith he, that other men be eased, and you burthened: but by an equality: that your abundince may be a supply * 1.111 for their want; which sense is also in Xenophon's Cyrus; What I shall see superfluous in my own estate will
serve the necessities of my friends. The like equity must we use for the interpre∣tation of that precept now in hand. The Hebrew Law, as it did indulge a liberty of divorce, to prevent the cruel∣ty of Husbands toward their Wives; so also, for the restraint of private revenge, whereto that Nation was very prone, allowed the offended party a right, to exact, not by his own hand, but by the sentence of the Judge, a retaliation: a Law imitated in the 12. Tables. But Christ, a Teacher of more patience, is so * 1.112 far from approving that ardent desire of revenge in the person wronged, that he would not have some kind of injuries to be repelled, either by force, or Law. What injuries? Such as are tolerable; not, that patience is not laudable in the more * 1.113 grievous, but he is content with a patience more limited. There∣fore he puts the case in a stroke on the cheek, which endangereth not the life, maimeth not the body, but only signi∣fies a certain contempt of us, which makes us nothing the worse. Seneca in his Book of a wise mans constancy di∣stinguishes between an injury and a disgrace, The former, saith he, is by nature the more grievous: this is ligh∣ter, and only grievous to the delicate, whereby they are not hurt, but offended. Again, Contumely is less than injury,
which we may rather complain of, than return: which the Laws also have thought worthy of no revenge. The same Seneca a little after saith, The grief a∣rising from disgrace, or an affront, is an affection comming from a meaness and lowness of the spirit, contracting it self for some word or deed against our repu∣tation. In such a case therefore, Christ commandeth patience: to turn the o∣ther cheek, is by an Hebraism, to bear patiently, as appears in * 1.114 other places: and lest any one object that common sentence, To suffer one injury is to in∣vite another, He addes, that we must rather bear * 1.115 a new injury, than repell the former: because there is no evill to us thence, but that which consists in a foolish † 1.116 persuasion.
THe third Objection is taken from the words that follow in the same place of Matthew * 1.117: Ye have heard, that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you; and pray for them which despitefully
use you and persecute you. Some there be that hold, this love and beneficence towards enemies and persecutors cannot consist with capital judgements or Wars. But they are easily refuted, if we do but consult with that saying of the Hebrew Law. It was commanded the Hebrews to love their Neighbour, that is, their fellow-Hebrew * 1.118: for so * 1.119 the word Neighbour is taken there. Nevertheless were the Magistrates com∣manded to put Murderers to death, and other capital offenders; nevertheless was the Tribe of Benjamin, for an abo∣minable transgression, prosecuted in a just War by all the other Tribes; never∣theless did David, who fought the Lord's battails, rightly recover the Kingdom promised him, from Isbosheth by Arms. Be it so then, that the signification of Neighbour is larger now, and conteins every man; for all are now received in∣to common grace, no people are by God devoted and given up to destru∣ction: yet will that be lawfull towards all, which was then lawfull towards the Israelites, who were commanded to be lov'd as well, as all men now. But, if you would have a greater degree of love to be commanded in the Evange∣lical Law, let this be granted also, so that this be agreed on too, that all are not * 1.120 equally to be loved, but a Father more than a foreiner. And so the good
of an innocent person is to be prefer'd before the good of a nocent, the com∣mon good above the private, by the Law of regular charity. Now, from the love and care of the innocent, * 1.121 both capi∣tal judgements and pious Wars have their original. Wherefore, the precepts of Christ, concerning love and charity to every one, ought so to be fulfill'd, unless a greater and more just and ne∣cessary point of charity will not suffer. That old saying is well known: To pardon all is cruelty, as much as to par∣don none * 1.122: Adde, that we are enjoyned to love our enemies after the example of God, who makes his Sun to shine upon the bad. Yet the same God exe∣cuteth punishment, even in this life, upon some bad ones, and hereafter will severely punish all. VVhereby is also an∣swered whatsoever is wont to be alleged here out of the precepts of Christian le∣nity. For God is called gentle, mer∣ciful, and long suffering: Yet do the Holy Scriptures set forth in sundry pla∣ces the anger of the same God against the obstinate * 1.123, and his will to punish the ungodly: And the Magistrate is
ordained the Minister of this wrath Moses is commended for his exceeding * 1.124 meekness: yet this same Moses puni∣shed the guilty, and that with death We are often bid to imitate the meekness and patience of Christ: yet Christ 〈◊〉〈◊〉 he, who did inflict most heavy judge∣ments, * 1.125 upon the rebellious Jews, an•…•… will at the day of judgement condem•…•… the wicked according to their desert•…•… Their Masters lenity was followed 〈◊〉〈◊〉 the Apostles, who did nevertheless ma•…•… use of the power * 1.126 given them from a∣bove for the chastisement of ungod•…•…∣men, as we read in severall * 1.127 places.
THe fourth place, which is objected is, Recompence to no man evill fo•…•… * 1.128 evill. Provide things honest in the sigh•…•… of all men. If it be possible, as much 〈◊〉〈◊〉 lyeth in you, live peaceably with all me•…•… Dearly beloved, avenge * 1.129 not your selves but rather give place unto wrath, for 〈◊〉〈◊〉 is written, Vengeance is mine, I will re∣pay, saith the Lord. Therefore if thi•…•… enemy hunger, feed him: if he thirs•…•…
give him drink; for in so doing thou shalt heap coals of fire on his head. Be * 1.130 not overcome of evil, but overcome evil with good. But here also the same An∣swer offers it self, which was given a∣bove. For at what time it was said by God, Vengeance is mine, I will repay, at the same time were capital judge∣ments exercised, and Laws written con∣cerning Wars. Moreover, benefits are commanded to be done (even then) to enemies, being their own Country-men. * 1.131 These things notwithstanding, there were, as we have said, both capi∣tal punishments, and just VVars upon the Israelites themselves. Wherefore, the same words or the like precepts, though of larger extent, are not now neither to be forced to such a sense: the less, because the division of Chapters is not from the Apostles, nor their age, but of much later time, for the more distinct reading, and easy allegation of the text. So, the beginning of the 13. to the Romans, Let every Soul be subject to the higher powers, and that which follows, was continued with those fore∣going precepts against revenge. Now, in this dissertation Paul saith, the pub∣like powers are Ministers of God, to execute wrath (i. e. punishment) upon them that do evil: therein most plainly distinguishing between vengeance for the publike good (which is administred
in behalf of God, and is to be referred to the vengeance reserved to God;) and that revenge for private satisfacti∣on, which he forbad in the former words. For, if you will have that ven∣geance also which is expected for the publike good, comprehended in that in∣interdict, what will be more absurd, than for the Apostle, when he had said we must abstain from capital judge∣ments, presently to adde, The publike powers are ordained of God for this end, to exact punishments in his stead?
THe fift place which some make use of is in the second Epistle to the Co∣rinthians: Though wee walk in the * 1.132 flesh, we do not War after the flesh: For the weapons of our warfare are 〈◊〉〈◊〉 * 1.133 carnal, but mighty through God 〈◊〉〈◊〉 the pulling down of strong-holds, &c. Bu•…•… this place makes nothing to the matter. For both the antecedents and conse∣quents do shew, that by the name of flesh, Paul understands here the weak constitution of body, which came un∣der their eyes, and in respect of which he was contemned. Hereunto Paul op∣poseth his weapons, that is, the power given him, as an Apostle, to subdue the refractory, such as he used upon Elymas,
upon the incestuous Corinthian, upon Hymeneus and Alexander. This pow∣er, he saith, is not carnal, that is, weak: yea on the contrary, he asserteth it to be most mighty. What is this to the right of capital punishments, or of War? Yea, on our side, because the Church at that time was destitute of ayd from the pub∣lick powers, Therfore had God raised up, for her defense, that prodigious power, which began afterward to fail about the time when Christian Emperours were gi∣ven the Church, even as Manna ceased, when the Hebrew people were come into the fruitful Land. That which is alleged, * 1.134 sixtly, out of the Epistle to the Ephesians, Put on the whole Armour of God, that yee may be able to stand against the wiles of the devil: for we wrestle not against flesh and bloud, (supply, only, after the He∣brew phrase) but against principalities, &c. This place, I say, speaks of the fight which belongs to Christians, as they are Christians, not, which they may have common with other men, upon certain occasions. The place of James which is urged, seventhly, From * 1.135 whence come Wars and fightings among you? come they not hence, even of your lusts that War in your members? &c. This conteins nothing universal: only it saith, the Wars and fights, whereby the disper∣sed Hebrews were at that time miserably dashed to pieces, and beaten one by
another (some part of which sad story is to be seen in * 1.136 Josephus) had their rise from causes not commendable: a thing which comes to pass in our dayes also, as we see with grief † 1.137. As for that which was spoken to Peter, They that take the sword shall perish by the sword, seeing it properly pertains not to War considered in common, but to private War (for even Christ himself gives this reason, why he forbad or neg∣lected the defence of himself, because his Kingdom was not of this world) it shall be more rightly handled in its own place.
WHen the question is about the sense of a writing, both the following practice, and the authority of wise men is wont to have much value. This is a good rule in the interpretation of ho∣ly Scripture. For it is not probable, that the Churches founded by the A∣postles,
did either suddainly, or all of them depart from those things, which the Apostles having briefly written, had explained more largely by word of mouth, or also introduced into the pra∣ctice and use of Christians. Now, our opponents that fight against Wars, u∣sually draw out unto their aid, some speeches of the antient Christians: to which I have three things to say. The first is this: No more can be collected out of those speeches, than the private opinion of the speakers, not the publick judgement of the Churches. It is more∣over to be noted, that the Authors of those sayings love to go single, for the most part, and to teach somewhat of a higher strain, than others; namely, Origen and Tertullian; who yet are not very constant to themselves. For the same Origen saith, God hath given us a lesson in the Bees, That just and orderly Wars may be waged amongst men, if necessity require. And the same Ter∣tullian saith, That it is good when Of∣fenders are punished no man denies † 1.138. And he is at a stand concerning Warfare; for in his De Idolatria, he proposech the question, Whether Christians may turn
Souldiers, and Souldiers Christians; Where he seems to incline to the opi∣nion against War. But in his De coro∣na militis, when he had disputed some things against warfare, presently he di∣stinguishes those that were Souldiers be∣fore their Baptism, from others that after Baptism enter into Arms. Plainly, saith he, their case is otherwise, whom Christian Religion found out after they were engag'd in the profession of Arms, as the Souldiers whom John admitted to his Baptism; as the most faithful Centurions, whom Christ commendeth, and whom Peter instructeth. Provided, that after their receiving of the faith * 1.139 and signing it, they forsake the War, as many have done; or else, by all means beware, they commit no offence against God. His opinion therefore was, that they continued Souldiers after Baptism: which certainly they would not have done, had they understood warfare to have been forbidden by Christ; no more than South-sayers, Magicians, and other professors of unlawfull † 1.140 Arts, were permitted after Baptism to remain in their Art formerly professed. In the same Book, praising a certain Souldier, and one that was a Christian, he spa∣reth not to exclame, and stile him, * 1.141 a Souldier glorious in God.
OUr second Observation is, That the Christians have either disallowed or avoided serving in the Wars, by rea∣son of circumstances and condition of the times, which would scarce permit Military orders to be executed without some acts repugnant to the Christian Law. In the Letters of Dolabella to the Ephesians, extant in Josephus, we see the Jews requested immunity from ex∣peditions of War; because in such a mixture with strangers, they were not able to keep their legal rites with due observance: and because they were constreined to carry Arms, and make long marches upon the Sabbath dayes. For which causes, they obteined a dis∣mission from L. Lentulus, as the same Josephus sheweth. He declares in ano∣ther place, that when the Jews were commanded to depart the City of Rome, some of them were listed, others puni∣shed for their refusal out of a reverence toward their own Country-Laws; for those reasons which we have mentioned: unto which sometimes a third was ad∣ded, because they had a necessity impo∣sed on them to fight against their own Country men. But, to take arms a∣gainst those of their own Nation was great impiety, to wit, when their Coun∣try
men were persecuted, for observing the Laws of their Fathers. Nevertheless as often as the Jews could eschew these incommodities, they bare arms, eve•…•… under foreign Kings; but, * 1.142 persisting in their Fathers Ordinances, and living according to their prescript: which they were wont to secure themselves of, by agreement aforehand, as the same Jo∣sephus testifieth. To these hazards 〈◊〉〈◊〉 those most like, which Tertullian obje∣cteth against serying in the Wars in his time: The ensign of Christ hath 〈◊〉〈◊〉 * 1.143 agreement with the ensign of the dev•…•… nor the oath of God with that of man for the Souldiers were made to swear by the Gods of the Gentiles, J•…•… Mars, and the rest. Again: shall a Chri∣stian * 1.144 keep watch for the Temples, whi•…•… he hath renounced, and eat there when the Apostle will not permit him? s•…•… he guard those evil spirits by night whom he hath exorcised by day? a lit∣tle after: How many other great off•…•…∣ces may be viewed in the Camp-Offices which must needs be interpreted trans∣gressions of our Law?
THirdly we note, that the Christians of the first times were enflam'd with so great ardour to undertake all things which were most excellent, that they
oft embraced divine Counsels for com∣mands. The Christians (saith Athena∣goras) do not go to law with them that by violence take away their goods. Sal∣vian saith, it is the will of Christ, that we let go the things ab ut which is any controversie, that we may be acquitted of the sute. But this, so generally ta∣ken, is perhaps a matter of Counsel, and of a more sublime and perfect way of life * 1.145, but not under any precise com∣mand. In like manner, very many of the antients disapprove all oaths, with∣out exception; yet Paul, in a matter of great consequence, used an oath. Tatian speaks of a certain Christian that refused the praetorship: and saith Tertullian, a Christian loves not to be made an Edile. So Lactantius will not let a just man (such he would have every Christian) go to War: neither would he have him go to Sea. And how many of the old Doctors dehort Chri∣stians from Marriage? All which par∣ticulars, suppose they be laudable, ex∣cellent, very acceptable to God, yet are they not required at our hands by the necessity of any Law. And this is sufficient for the solution of objecti∣ons.
NOw, that we may confirm our do∣ctrine; first there are not wanting to us VVriters, and those of the more antient sort, who think both capital pu∣nishments, and VVars which depend thereon, may lawfully be us'd by Chri∣stians. For Clemens of Alexandri•…•… saith, A Christian, if he be call'd to go∣vern, will be like Moses, a living La•…•… unto his subjects, and he will render 〈◊〉〈◊〉 the good rewards, to the evil punish∣ments. And elsewhere describing 〈◊〉〈◊〉 habit of a Christian, he saith, it becom•…•… him to go barefoot, unless perhaps he be a Souldier. In the * 1.146 Constituti∣ons * 1.147 which bear the name of Cleme•…•… Romanus, we read thus: All kill•…•… is not unlawful, but only of the innocent yet is that which is just reserved only 〈◊〉〈◊〉 the Magistrates. But, private autho∣rities being laid aside, let us come to the publick authority of the Church which ought to be of greatest weight I say then, that the Church never re∣jected, nor excommunicated any for serving in the Wars; Which yet oug•…•… to have been done, and would hav•…•… been done, if War had been repugnan•…•… to the new Testament. In the Con∣stitutions * 1.148 now cited, that writer spea∣king
of such as antiently were wont to be admitted to Baptism, or rejected from it, saith: Let a Souldier requi∣ring Baptism be taught to abstein from injuries and oppressions: to be content with his wages. If he observe these things, let him be admitted. Tertullian in his Apologetick speaking in the name of Christians; We go to Sea, and to War * 1.149 in your Company. A little before he had said: We are strangers, and yet we have filled all places, your Cities, Islands, Castles, Towns, Councils, yea your Camps also. In the same Book he had related, how by the prayers of the Christian Souldiers a shower of Rain was obtei∣ned from Heaven to refresh the Army of Marcus * 1.150 Aurelius Emperour. In his De corona he saith, That Souldier that threw away his Garland was more constant than his other Brethren; and sheweth, that he had many Christian fellow-Souldiers. Moreover, some Soul∣diers were not wanting, who having suffered torments for Christ, even to the death, received from the Church the same honour with the rest of Martyrs; Among whom are remembred the three Companions of Paul * 1.151; Cerialis under De∣cius, Marinus under Valerian, fifty under Aurelian; Victor, Maurus, and Valentinus the Master of the Souldiers under Maxi∣mianus; Marcellus the Centurion about the same time; Sevorian under Licinius.
Concerning Laurentinus and Ignatius Africans, these are the words of Cy∣prian, Being Souldiers in the secular warfare, but spiritual Souldiers too, whilst they get the victory over the De∣vil by the confession of Christ, they have obtained, by their passion, victorious palms and glorious Crowns of their Lord.
FRom the former testimonies it is evi∣dent, what opinion the community of Christians had of War, even before the Emperours were Christian. If, in those times, the Christians were not willingly present at capital punishments, it may not seem a wonder, when for the most part Christians were the per∣sons condemned. Adde hereunto, that in other matters also, the Roman Laws were harder than Christian lenity would suffer, as appears sufficiently, though we instance only in the * 1.152 Silenian De∣cree of Senate. But, after Constantine began both to approve and advance the Christian Religion, capital punish∣ments did not therefore cease. Yea Constantine himself, among other Laws, made one about sowing up paricides in a sack: which Law is extant in the Tode * 1.153: though otherwise in exacting punishments he was so gentle, that he
is accus'd of too much * 1.154 lenity by some Historians. Besides, He had in his Ar∣my very many Christians, as the Histo∣ries do teach us, and inscribed on his Ensign the name of Christ. And from that time was the military oath chan∣ged into that form, extant in Végetius: By God and Christ, and the Holy Spirit, and by the Majesty of the Emperour, next after God to be lov'd and honour'd by mankind. And at that time, among so many Bishops, of whom many had suffer'd very much for Religion, we do not read of any one, who deterred ei∣ther Constantine wholy from capital punishments, and from War, or the Chri∣stians from serving in the War, by threatning them with the wrath of God for the same: when yet there were very many most rigid keepers of Dis∣cipline, and such as would not dissem∣ble or pass by any thing that pertained either to the Office of the Emperours or of other men. Such a Prelate was Am∣brose in the time of Theodosius, whose words are these: It is no sin to be a * 1.155 Souldier; but, for a Souldier to fight for the spoil only, that's a sin. And in another place: Valour, which either in * 1.156 War defends our Country from Barbari∣ans, or at home defends the weak, or our friends from robbers, is full of justice. This Argument is to me of so much weight, that I require no more. Yet
am I not ignorant, that Bishops * 1.157 of∣ten, and the Christian people, by the•…•… intercessions averted punishments, es∣pecially the capital ones: and, that 〈◊〉〈◊〉 custom was introduced, that persons who had fled unto the Church † 1.158 and taken Sanctuary, were not rendred without promise given to save their lives: and, that at Easter * 1.159, they should be deliver'd out of prison, whom their crimes had •…•…aid there: But, whosoever, shall advisedly consider these, and such like things, will find, they are indeed signs o•…•… Christian goodness, taking all occasion of shewing mercy, not argu∣ments of a mind condemning all sen∣tences of death upon capital offenders: wherefore, those benefits, and inter∣cessions too, were tempered and limited by certain † 1.160 exceptions both of times and places.
SOme do here object against us the twelth Canon of the Nicene Council, which is to this effect: Such * 1.161 as have been call'd by grace, that have shewed their first love and faith in throwing off their belt, and have afterward like Dogs returned to their vomit; some giving
money and bribes to return into their place; let them lye among the penitents ten years, after they have been three years among the Hearers. But in them all must be observed the sincerity and measure of their repentance. For, they that by fear, and tears, and patience, and good works do shew their conversion to be without hyprocrisy, after they have fulfilled their appointed time of hearing, shall be admitted to the prayers of the Church, and afterward the Bishop may entertain some favourable thoughts con∣cerning them. But, they that have in∣differently and slightly taken their fall, and think it sufficient to their conversion, if they have but entred into the Church, shall without any dispensation fulfill the whole time appointed. The time it self of thirteen years is evidence enough, that no light or ambiguous fault, but some grievous and undoubted crime is here meant. And certainly 'tis no other than * 1.162 Idolatry. For the times of Lici∣nius mentioned asore in the eleventh Canon, ought to be understood in this: as it often happens, that the sense of the Canons subsequent depends upon the precedent; for example, see the e∣leventh Canon of the Eliberin Coun∣cil. Now Licinius, as Eusebius relates, cashier'd the Souldiers that would not sacrifice † 1.163 to his Gods: which also Ju∣lian after did: and therefore Victricius
with others are read to have cast off the Belts for Christ's sake. So, in for•…•… times, had one thousand one hundred and four likewise done in Armenia who are remembred in the Martyroso gies; and, in Egypt, Menna and H•…•…∣sychius. And so, in the times of Licinius many cast off their Belts, of whom were Arsacius, named among the Confessors and Auxentius, afterward made B•…•…∣shop of Mopsvestia. Wherefore they who touched in conscience had once left the Army, had no access unto 〈◊〉〈◊〉 again, under Licinius, but by denyall of the Christian Faith. Which denyall because it was so much the more grie∣vous, by how much their former a•…•… did testify their greater knowledge 〈◊〉〈◊〉 the divine Law, therefore are these Apo∣states more grievously punished th•…•… those mentioned in the former Canon who without peril either of life or for∣tunes had renounced Christianity. But to interpret the alleged Canon of VVar∣fare in general, is against all reason: for the History plainly shews, They, that had forsaken the Army under Li∣cinius, and returned not unto it during his reign, lest they should violate the Christian Faith, had their choice given them afterward by Constantine, whe∣ther they would be free from serving in the War, or else return again into their places: which, without question, many did.
SOme do also object an Epistle of Leo, which saith: It is contrary to the Ecclesiastical rules, after repentance, to return unto the secular warfare. But, we must know, in penitents, as well as in the Clerks and Monks, was requi∣red a Christian life, not of an ordina∣ry strein, but of a singular kind of pu∣rity; that they might be as great ex∣amples * 1.164 for correction of manners, as they had been afore of transgression. Likewise, in the most antient customs of the Church, commonly called the A∣postolical Canons, that by this sacred name they might be the more reverently received, in the 82. Canon it is enjoy∣ned: That no Bishop, Presbyter or Dea∣con follow the War, and retein at once a Roman office and a sacerdotal Function. For let Caesar have the things that are Cesar's, and God the things that are God's. Whereby it is manifest, VVar∣fare was not interdicted such Christi∣ans as did not aspire unto the honour of the Clergy. More than this, they al∣so were † 1.165 excluded from the Clergy, who after Baptism had medled either
with Magistracies, or Offices of War, 〈◊〉〈◊〉 may be seen in the Epistles of Syrici•…•… and Innocentius, and in the Council 〈◊〉〈◊〉 Toledo. The Clergy, we may be su•…•… were chosen, not out of ordinary Chri∣stians, but of those that had given te∣stimony of a most exact conversation. Adde, that the military, and some of the civil offices brought with them a perpe∣tual obligation; but, it was not fit th•…•… the persons devoted to the Holy Mini∣stry, should be diverted from it * 1.166 by any other daily care and labour. Wherefore the 6. Canon too ordains, That no Bi∣shop, Presbyter or Deacon, administ•…•… any secular charge: the 80. That 〈◊〉〈◊〉 intrude not himself into publick admi∣nistrations: and the 6. among the A∣frican Canons, That he undertake nor the procuration * 1.167 of other mens affairs, or the defence of causes: and Cypri∣an judgeth, it is unlawful such persons should be appointed † 1.168 Guardians.
BUt for our opinion we have the ex∣press judgement of the Church in the first Council of Arles, held under Constantine; the 3. Canon whereof determines thus: It seemeth good un∣to us to keep them from Communion, who throw down their Arms in peace:
that is, who forsake the War in the times when the Church is free from persecution; for the Christians under∣stood this by the name of peace * 1.169, as ap∣pears in Cyprian and others. Adde the example of the Souldiers under Julian, Christians of no mean proficiency, be∣ing ready to bear witness to Christ even to the death; of whom saith Ambrose, The Emperour Julian, though an Apo∣state, had Christian Souldiers under his command. When he gave them the word, Draw out for the defense of the Common-wealth, they obeyed him: but when the word of command was, Draw out against the Christians, then they acknowledged the Emperour of Hea∣ven. And of the same resolution was the Thebaean Legion long before, which in the time of the Emperour Diocletian had receiv'd the Christian Religion from the hand of Zabdas the thirtieth Bishop of Hierusalem, and shewed forth an example of Christian constan∣cy and patience memorable to all po∣sterity, which we shall relate hereafter. Here it may susfice to set down that speech of theirs, which with solid brevi∣ty expresseth the Duty of a Christian Souldier: We offer against any enemy in the world these our hands, which we
think impiety to embrue with the bloud of innocent men. These our hands are expert to fight against wicked men and enemies, they know not how to cut in pie∣ces pious men and those of our own Coun∣try. We have not forgotten that we took up Arms for our Countrymen, not against them. We have alwaies fought for ju∣stice, for piety, for the safety of the inno∣cent: these have been hitherto the price of our perils. We have fought for Faith; which, how shall we keep with yon (they speak to the Emperour) if we preserve it not with our God? Basil, of the more antient Christians, thus, The slaugh∣ters made in War, our Ancestors accoun∣ted not for slaughters, having them ex∣cused who draw the sword on behalf of piety and vertue.
THat some private War may be law∣fully * 1.170 waged, as to the Law of Na∣ture, appears sufficiently by what hath been said above, when we shewed, it is not repugnant to the Law of Nature to repel force by force, and defend ones self from injury. But haply some may think it now unlawful, since the consti∣tution of publick Courts of Justiee; for although these Courts be not from nature, but from humane Ordinance,
yet seeing it is much more honest and becomming, and more conducible to mans quietness, that the matter should be tryed before an indifferent Judge, than that the parties themselves inte∣ressed, who too often favour themselves overmuch, should execute what they think right, by force; equity and na∣tural reason dictate to us, that it is our duty to observe so laudable an Institu∣tion. Paulus the Lawyer saith: It is not to be granted to the parties to do that which may be done publickly by the Ma∣gistrate, * 1.171 lest it be an occasion of making a greater tumult. And the King Theodo∣ricus * 1.172: Hence it is, that the reverence of the Laws was found out, that nothing might be done by force, nothing by ones own impulse. For what difference be∣tween the clamness of Peace and the con∣fusion of War, if controversies be deter∣mined by force. The Laws call it force, as often as any man requireth that which * 1.173 he thinks due unto him, not by course of Law. Certainly, it must be confes∣sed, the licence permitted before the constitution of Courts of Justice, is much restrained since. And yet since, it some∣times taketh place, namely, where pub∣lick Justice is wanting: for the Law forbidding a man to seek his own other∣wise than by course of Law, ought com∣modiously to be understood with this clause, where Law and judgement may
be had. Now, this is wanting either at the instant, or for continuance: at the * 1.174 instant, as, where the Judge cannot be waited for, without certain peril and loss: for continuance, either by right, or by fact. By right, if one be in places unpossest, as on the Sea, in a desert, in void Islands, and if there be any other places wherein there is no Government: by fact, if the Subjects do not acknowledge the Judge, or the Judge openly hath rejected the tryal of such a cause. That we have said, all private War is not repugnant to natu∣ral right, even since the constitution of Courts of Justice, may also be made apparent from the Law given the Jews. where God speaks thus by Moses. If a thief be found breaking up, and be smit∣ten that he die, there shall no bloud be shed from him. If the Sun be risen upon * 1.175 him, there shall be bloud shed for him. Truly, this Law, so accurately distin∣guishing, seems, not only to induce im∣punity, but withall to explain natural right: nor seemeth it to be grounded in any peculiar divine mandate, but in common equity: Whence we see other Nations also have followed the same. That of the 12. Tables is notable, drawn no doubt, from the old * 1.176 Attic Law:
If a thief steal by night, and be killed, he is iustly killed. So, by the Laws of all Nations, whom we have known, is he judged guiltless, who hath by arms defended his life against a vio∣lent assault. This so manifest consent is testimony enough, that here is no∣thing contrary to natural right.
COncerning the more perfect, volun∣tary divine Law, that is, the Evan∣gelical, there is more difficulty. That God, who hath more right over our lives than we have our selves, might have required of us so much patience, as to lay down our lives, and, when we are brought in danger by the assault of a private person, rather choose to be killed than to kill, I do not doubt. But, the que∣stion is, whether it hath pleased him to oblige us so far, or no. On the affirmative part, are usually brought two places, which * 1.177 we alleged afore upon the general questi∣on. But I say unto you, resist not the inju∣rious person: and Revenge not your selves, dearly beloved. There is a third place in those words of Christ * 1.178 to Pe∣ter, Put up thy Sword into the sheath; for they that take the Sword, shall perish by the Sword. Some adde unto these, the example of Christ who dyed for his * 1.179
enemies. Nor are there wanting a∣mong the old Doctors, who although they disapproved not publick Wars, were nevertheless of opinion that pri∣vate defense was forbidden. We have above set down some places of Ambrose for VVar; and more of Austin, and more clear, known to all. Yet hath the same Ambrose said: And perhaps ther∣fore * 1.180 the Lord said to Peter, shewing two Swords, It is enough, intimating it was lawful until the Gospel came, which instructeth us in the truth, as the Law did in Justice. The same Father else∣where: A Christian if he fall upon 〈◊〉〈◊〉 armed thief, cannot strike him again * 1.181 that striketh; lest while he defends his safety, he offend against piety. And Augustin hath said: I do not indeed reprehend the Law which permitteth suc•…•… * 1.182 (thieves and other violent assaulters) to be slain, but how to defend those the slay them I do not find. And elsewhere: As to killing of men, lest one be killed, I do not like that course, unless perhaps one be a Souldier, or bound by publick Office, that he doth not this for himself but others, having received lawful power. And that Basil was of the same mind, appears sufficiently out of his se∣cond Epistle to Amphilochius * 1.183.
BUt the opposite opinion, as it is more common, so it seemeth unto us more true, that an obligation is not laid up∣on us to be so patient. For we are com∣manded in the Gospel to love our neighbour as our selves, not above our selves: yea where equal evil is immi∣nent, we are not forbidden to provide for our selves * 1.184 rather than for others, as we shewed above by the authority of Paul explaining that rule of benefi∣cence. Some perhaps urge against us thus: Although I may prefer my own good before my neighbour's, yet this hath not place in unequal goods: wher∣fore my temporal life is rather to be de∣serted than the invader permitted to fall into eternal damnation. But thus it may be answered: He that is inva∣ded hath oftentimes himself also need of time to repent, or hath some reason to think so; and that the assailant too may possibly find some space for repentance before his death. Besides, in a moral judgement, that peril seemeth not fit to be regarded, into which a man casts himself, and from which he may free himself, if he will. Certainly, some of the Apostles, even to the last times, Christ himself seeing and knowing it,
scem to have made their journys ar∣med with the sword: and that othe•…•… Galileans travelling out of their Coun∣try toward the City did the same, 〈◊〉〈◊〉 reason of danger on the way from Rob∣bers, we earn out of Josephus; VVh hath also deliver'd the same of the 〈◊〉〈◊〉 senes, men most innocent and harmele•…•… Hence it was, that when Christ said * 1.185 the time was at hand, when he th•…•… wanted a Sword should sell his gar∣ment and buy one, presently the A∣post•…•…es answer'd (for there were non•…•… but Apostles in that Company:) they had among them two Swords. More∣over, that which Christ said, although in truth it conteins not any precept, but is a proverb, signifying very grea•…•… dangers to be at hand, as appears plain∣ly * 1.186 by the opposition of the first 〈◊〉〈◊〉 which was safe and prosperous; yet 〈◊〉〈◊〉 it such, as is manifestly taken from the usual custom, and which the Apo∣stles esteemed lawful. And surely 〈◊〉〈◊〉 were not lawful to have Swords (they are the words of Cicero) if it be not law∣ful in any wise to make •…•…se of them.
THat precept of Christ, not to re∣sist him that doth injury, is not more universal, than that which follows, Give to every one that asketh: which yet ad∣mits
of an exception; So that our selves be not too much burthened: yea, to that precept of giving, no restriction is added, but it is restrained only by the sense of equity, whereas the precept of not resisting hath its explication adjoy∣ned by the example of a blow on the cheek; that we may understand our selves to be then precisely bound, in case the injury offer'd us be either a blow on the cheek, or equal to it; for other∣wise it had been fitter to say, Resist not the injurious, but rather lose your life, than use your arms. In the words to the Romans, Avenge not your selves: for so it is, (not Defend not your selves:) as the * 1.187 word is used in other places, and here the connexion manifestly shews: The words are these, Recom∣pense to no man evil for evil: a description of revenge, not of defense, this. And Paul supports his precept with a place of Deuteronomy, Vengeance is mine, I will repay: where the word in Hebrew, translated Vengeance, hath properly that signification, and the sense of the place will admit no other. That speech of Christ to Peter, contains indeed a pro∣hibition of using the Sword, but not in the case of defense: neither had he any need to defend himself: for Christ had spoken on behalf of his Disciples: Suffer these to go away: that his saying might be fulfilled; Of those whom thou * 1.188
hast given me, have I lost none: 〈◊〉〈◊〉 Christ; for he would not be defended. Therefore he addes in John, this cause of his prohibition, Shall I not drink 〈◊〉〈◊〉 * 1.189 the cup which my Father hath give•…•… me? and in Matthew he saith, How then should the Scriptures be fulfilled which say these things ought to be done? Wherefore, Peter a man of a hot Spi∣rit, was transported, itseems, with 〈◊〉〈◊〉 mind of revenging, not of defending his Master. Adde, that he took arms against those that came in the name 〈◊〉〈◊〉 the publick powers; Whom, whethe•…•… in any case it be lawful to resist, is a pe∣culiar question, to be handled by us hereafter. That which the Lord saith after, All they that take the sword, shall perish by the sword, either is a pro∣verb taken from vulgar use; whereby is signified, that bloud draweth bloud, and so the use of arms is never without peril: or, it declares * 1.190, that we have no reason to prevent God in taking revenge, which he in his time will duly exact: just as in the Apocalyps, He that killeth with the sword, must be killed with the sword: Here is the patience and the faith * 1.191 of the Saints. Wherewith agrees that of Tertullian: So bounteous a rewarder of patience is God; that if you commit * 1.192
your injury to him, he is a Revenger; if your grief, a Healer; if your death, a Reviver. How great is the power of pa∣tience, to have God himself a Debter to it? And withall, in these words of Christ, seems to be conteined a prophecy of the revenge, which was to be executed up∣on the bloudy Jews by the sword of the Romans. To the example of Christ, who is said to have dyed for his enemies, it may be answered, That it is true, all the actions of Christ are full of vertue, and such as (so far as may be) it is laudable to imitate, and 'twill not want a reward: yet are they not all of such a sort, that they either proceed from some Law, or impose a Law on us. For, that Christ dyed for his enemies and the wicked, was not determined by any Law, but by agreement as it were, and special Covenant made with his Father: who, upon that condition, promised him not only the highest glory, but a seed to endure for ever. Besides, Paul * 1.193 shews this to be a singular and unpa∣ralleld act of Christ: and Christ com∣mands * 1.194 us to expose our lives to dan∣ger, not for all sorts of men, but for those that are partakers of the same Discipline. As for the sayings produ∣ced out of Christian writers, they seem partly to contein Counsel rather and a commendation of a more excellent way, than any strict precept; and partly are
their own private opinions, not of th•…•… whole Church. For in the oldest Ca∣nons * 1.195, which are call'd the Apostles excommunication is not denounced 〈◊〉〈◊〉 against him, who in a fray at the 〈◊〉〈◊〉 stroke hath slain his enemy, * 1.196 for his too much heat and forwardness And Austin, whom we brought on the * 1.197 other side, seems to go into this opi∣nion, quaest. 84. in Exod.
PUblick VVar is either Solemn by the Law of Nations, or less Solemn. What I here call solemn is commonly called just, in the same sense as a just Testament is opposed to Codicils * 1.198: not that it is not lawful for him that pleaseth to make Codicils, but because a solemn Testament hath, by the Civil Law, some peculiar effects. This is worth our observation, seeing many misunderstanding the word just, conceive all VVars to be condemned as unjust and unlawful, whereunto this appella∣tion of just is not agreeable. That VVar, according to the Law of Nations, may be solemn, two things are requisite: first, that it be waged on both sides by
his authority who hath the highest pow∣er in the Common-wealth: Secondly, that certain rites be used, of which we shall speak in due place. One of these, because they are both required, without the other, doth not suffice. Publick War less solemn, may want those rites, and 〈◊〉〈◊〉 waged against private persons, and •…•…ave for the author any Magistrate. And truly, if the matter be considered without civil Laws, it seemeth that e∣very Magistrate hath right to wage War, as for defense of the people committed to his charge, so for the exercise of ju∣risdiction, if he be opposed by force. But because by War the whole Common-wealth is endangered, therefore by the Laws of all people almost, it is provi∣ded, that War be not undertaken with∣out the authority of him, whose power in the Common-wealth is highest. There is exstant such a Law of Plato's * 1.199; and in the Roman Law, it is called treason in him, who without the com∣mand of the Prince hath waged War, or listed Souldiers and raised an Army. In the Cornelian Law brought in by L. Cornelius Sylla it was, without the com∣mand of the people. In Justinians Code is exstant a Constitution of Valentinian and Valens: * 1.200 None have leave to take any arms without our knowledge and di∣rection.
Pertinent is that of Au∣stin * 1.201: Natural order for preserving peace among men requires this, that 〈◊〉〈◊〉 thority and counsel in undertaking 〈◊〉〈◊〉 should remain in the Princes. But, 〈◊〉〈◊〉 all sayings how universal soever 〈◊〉〈◊〉 be interpreted by equity, so must 〈◊〉〈◊〉 Law. For first, there is no doubt, 〈◊〉〈◊〉 that 'tis lawful for one having juri•…•…∣ction, by force of his Apparitors or 〈◊〉〈◊〉 jeants to constrain a few disobed•…•… persons, as oft as there is no need 〈◊〉〈◊〉 greater power to that purpose, and 〈◊〉〈◊〉 danger imminent to the Common-wealth. Again, if it be so present 〈◊〉〈◊〉 danger, that time will not admit of con∣sultation with him, who hath sup•…•… power, here also necessity affordeth 〈◊〉〈◊〉 exception. By this right L. Pin•…•… * 1.202 Governour of Enna a Garrison in 〈◊〉〈◊〉 cily, having certain information that 〈◊〉〈◊〉 Townsmen were falling off to the 〈◊〉〈◊〉 thaginians, making a slaughter of then kept the Town. Without such nece∣sity, to revenge the injuries which the King neglecteth to persue, a right of 〈◊〉〈◊〉 ring is allowed to the Citizens by the bolder pen of * 1.203 Franciscus Victoria but his opinion is by others justly re∣jected.
IN such cases, wherein the lower pow∣ers have right to make War, the In∣terpreters of Law do not agree, whe∣ther that War may be called publick. Some say, Yea * 1.204: some, No * 1.205. Certain∣•…•…y, such VVars are publick, if by pub∣•…•…ick we mean that which is made by the right of the Magistrate; and therefore, they that in such a case oppose them∣selves against the Magistrates fall into the punishments of persons contumaci∣ous against Superiours. But if publick be taken in the more excellent significa∣tion for that which is solemn (as it is without controversy oft taken) those Wars are not publick, because to the plenitude of that right, both the judge∣ment of the highest power, and other things are requisite. Nor am I mov'd with this, that in such contention also they are wont to take the spoil of the resisters and give it to the Souldier † 1.206: for this is not so proper to solemn War, but it may have place elsewhere * 1.207. And it may also happen, that in an Empire of larger extent, the inferiour powers may have power granted them to begin a War: in which case, the VVar is sup∣posed to be made by the highest Power; because, every one is judged author of
that which he giveth another Commis∣sion to do. That is more Controver•…•… whether a conjecture of the will of th•…•… highest, where there is no mandate, 〈◊〉〈◊〉 sufficient. To me it seemeth not. For 〈◊〉〈◊〉 sufficeth not to see, what would be the pleasure of him that hath the highe•…•… Power, if he were consulted with in this conjuncture of affairs; but this is ra∣ther to be considered, what he, wher•…•… the matter admits delay, or is of doubt∣ful deliberation, may desire should be done without consulting with him, if a Law were to be made about it. For, al∣though in some particular fact the par∣ticular reason ceaseth, which moves the will of the Soveraign, yet the univer∣sal reason holdeth, which requires dan∣gers to be withstood. VVhich cannot be, if every Magistrate draw unto him∣self the judgement thereof. Justly there∣fore * 1.208 was C. Manlius accused by his Legats * 1.209, because without command of the Roman people he had made VVa•…•… upon the Gallo-Grecians; for, albeit the Legions of the Galli had served in the Army of Antiochus, nevertheless after the peace agreed on with Antio∣chus, whether that injury were to be re∣venged upon the Gallo-Grecians, was not at the pleasure of C. Manlius but of the people of Rome. That C. Caesar for carrying VVar against the Germans, should be yielded up to the Germans,
was the sentence of Cato; not so much (as I conceive) regarding justice, as de∣siring to acquit the City from the fear of an Usurper; for the Germans had given aid to the Gauls, enemies of the Roman people, and therefore had no reason to complain of injury done them, if the Romans had just cause of warring against the Gauls. And yet Caesar ought to have been content with the expulsion of the Germans out of Gallia, the Province committed to him, and not to pursue the Germans with War within their own bounds, especially without any appearance of danger thence, unless he had advised first with the people of Rome. So then, the Germans had no right to require him to be given up into their hands, but the people of Rome had right to punish him: just as the Carthaginians answe∣red the Romans, Whether Saguntum wa•…•… assaulted by private or publick Coun∣sel, * 1.210 we conceive is not to be made the question; but this, whether it was as∣saulted justly, or unjustly: for to our selves is an account to be given by our Ci∣tizens, whether he did it of himself, or by Commission; With you this alone is dis∣putable, whether it vere a violation of the league or no. Cicero defends the action both of Octavius and Decimus Brutus, who on their own heads took Arms against Antonius. But, suppose
Antony dese•…•…ved hostile opposition, yet was the judgement of the Senate and people of Rome to be waited for, whe∣ther it were for the good of the Common∣wealth to dissemble what was done, 〈◊〉〈◊〉 to revenge it; to come to conditions of peace, or go forth to War. For no man is compell'd to use his own right, which is often conjoind with hazard. Again, suppose Antonius be declar'd an enemy, * 1.211 yet the deliberation was to be left to the Senate and people of Rome, by whose conduct especially they would p ease to make the War. Thus the Rhodians answer'd Cassius, when he demanded aid according to the league, that they would send him aid if the Senate wou'd command. Being admonisht by this example (and we may meet with more) let us remember not to approve of all things, though deliver'd by Authors of greatest name; for they often serve the times, or their affections, and bend the rule as occasion requires? wherefore 〈◊〉〈◊〉 must take some pains in matters of this nature to clear the eye of our judgement, and examine things thorowly, and no•…•… rashly draw into example what may rather be accounted capable of excuse, than worthy of our praise and imitation: Wherein some fall into pernicious er∣rours. Now whereas it hath been said, that publick War is not to be waged unless by his authority who hath the
highest power, to the understanding hereof, and of that question that is a∣bout solemn War, and so to many other purposes, it will be necessary to under∣stand what is that highest Power, and who have it: and so much the more necessary, because in our age learned men, every one having pursued that Argument rather according to the exi∣gence of present affairs, than according to the Truh, have rendred the matter much more difficult, which of it self is not very easy.
THe moral faculty of Governing a City * 1.212, which is stiled by the name of civil Power, is described in Dionysius Halicarnessensis by three especial notes, a right of creating Magistrates, a right of making and abolishing Laws, * 1.213 a right of decreeing War and Peace; else∣where he addes a fourth, Courts of ju∣stice; and elsewhere the care of Reli∣gion, and calling of assemblies. Others * 1.214 express themselves otherwise. But if one will make an exact partition, he shall easily find all that pertains hither, so that nothing may be wanting or su∣perfluous. For the Governour of a Ci∣ty governs it partly by himself, partly by others. By himself he is either con∣versant about universals, or about sin∣gulars.
About Universals, by making and abolishing Laws, as well about sa∣cred (so far as the care of them belongs unto the City) as about civil affairs. This art is call'd by Aristotle archi∣tectal. The singulars about which he is * 1.215 conversant, are either directly publick, or private, yet in order to the publick. Directly publick are Actions, as of Peace, War, Leagues; or Things, as Tributes and the like: Wherein is comprehen∣ded also that eminent Dominion, which the City hath over the Citizens and their estates for the publick use. The Art a∣bout these is exprest in Aristotle by the general name political or civil, and * 1.216 is also called the Art of consultation. Private things are such as are contro∣verted between party and party, which it concerns the publick quiet to be de∣termined by publick authority. And this Art is by Aristotle termed judicial. The things done by another, are dispat∣ched * 1.217 either by Magistrates, or by other procurators, to which number Embas∣sadors are to be referred. And in these particulars consisteth the civil power.
THat is call'd the Highest Power whose acts are not under the right of another, so as to be made void at the pleasure of another humane will. When
I say of another, I exclude him who en∣joyeth the highest Power (who may change his own will) as also his Suc∣cessor * 1.218, who enjoyeth the same right, and therefore hath the very same pow∣er. Let us now see, in what subject this highest power is. There is a com∣mon subject, and a proper subject: as the common subject of sight is the body, the proper is the eye; so the common subject of the highest Power is a City, that is, a perfect society. We exclude therefore people or Countries that have yielded up themselves, or fallen to the dominion of another people, such as were the Provinces of the Romans: for these are not by themselves a City, as now we take the word, but less wor∣thy members of some great City, as servants are members of the family. Again it comes to pass, that several Na∣tions or Countries have one and the same head, which do nevertheless every one make up a perfect society by them∣selves: for it is not in the moral body as in the natural; in the natural, one cannot be the head of several bodies; but in the moral, the same person, consi∣dered in a divers relation, may be the head of bodies many and distinct. Wher∣of this is a certain Argument, that the Royal Family being exstinct, the Em∣pire * 1.219 returns to every people severally. So also it may happen, that more Ci∣ties
may be confederated one with ano∣ther by a most close league, and make certain System, as Strabo uses to speak and yet, not any one of them ceases 〈◊〉〈◊〉 retain the State of a perfect City: which is noted both by others, and by Ari∣stotle in more places than one. 〈◊〉〈◊〉 then, let a City, so understood as we hav•…•… said, be the common subject of the high∣est Power: the proper subject is a per∣son, one or more, according to the 〈◊〉〈◊〉 and customs of every Nation * 1.220.
HEre is first to be rejected their opi∣nion, who will have the highest Power every where, and without ex∣ception, to be in the people, so 〈◊〉〈◊〉 they may restrain and punish Kings, as oft as they use their power amiss: which opinion, how many mischiefs 〈◊〉〈◊〉 hath occasion'd, and may yet produce, if it be throughly en•…•…rtain, every wise man sees. We oppose these Ar∣guments against it. It is lawful for 〈◊〉〈◊〉 every man to addict and yield himself into private servitude to whom he plea∣seth, as appears both out of the Hebrew * 1.221 Law and the Roman. Why then may not any people, being at their own dis∣pose, give up themselves to one or more, so as to transcribe the right of gover∣ning
them wholy to their Ruler, no part of that right retained or reserved to themselves? Nor may you say, that cannot be presumed: for we do not here enquire, what may be presumed in a doubtful case, but what may be done in * 1.222 point of right 〈◊〉〈◊〉 vain also are here al∣leged the incommodities that follow, or are possible; for what kind of Go∣vernment soever you shall frame in your mind, you will never exclude all incommodities or hazards. You must be content, in every way, to take the good and evill * 1.223 one among another. Now as there are many courses of life, one more excellent than another, and every man is at liberty among many to choose which he doth most affect; so may any people also make choice of what form of government they please: neither is the right to be measured by the excel∣lency of this or that form (for divers men have divers judgements hereof) but by their * 1.224 will. And indeed there may arise many causes, why the peo∣ple may abdicate from themselves the whole right of commanding, and give it to another, viz. because being brought into danger of their life, they can find no other way to preserve them∣selves; or because being opprest with
want, they can have no sustenance or•…•… other terms. For if the Campanians 〈◊〉〈◊〉 old, being subdued by necessity, subje∣cted themselves * 1.225 to the Roman people in this form: The people of Campania, and the City Capua, our Lands, the Temples of our Gods, all divine and hu∣mane things, we yield up into your hand, O ye Con'cript Fathers: and fund•…•… people when they desired to subj a themselves to the dominion of the Ro∣mans * 1.226 were not accepted, as 〈◊〉〈◊〉 saith: what hinders, but that a people after the same manner may yield up 〈◊〉〈◊〉 self into the hand of one propotent and over-mighty man * 1.227? Moreover, it 〈◊〉〈◊〉 happen, that some Father of a Fami∣ly, possessing a large estate of Lands may please to receive no inhabitant 〈◊〉〈◊〉 to his possession, but upon such cond∣tion: or, that some Master having 〈◊〉〈◊〉 great number of servants may manu•…•… and set them at liberty, on conditio•…•… that they be subject to his Government and pay him tribute. VVhich cases 〈◊〉〈◊〉 not without their examples. Tacit•…•… concerning the servants of the Ger∣mans, saith, Every one is Master of his own house and estate: The Lord impi•…•…∣seth and requireth of them (as his far∣mers) a rent of Corn, or Cattle, or cloths; and the servant so far is sub•…•…ect. Adde, that as Aristotle hath said, some 〈◊〉〈◊〉 are by nature servants, i. e. fit for ser∣vitude;
so also some Nations are of this disposition, that they know better how to be ruled, than how to rule: Which the Cappadocians seem to have thought of themselves, who preferred the life un∣der * 1.228 a King before the Liberty offer'd them by the Romans, and affirmed, they could not live without a King. So Phi∣lostratus, * 1.229 in the life of Apollonius, saith, It is a folly to bestow Liberty upon the Thracians, Mysians, Getes, which they would not gladly accept. And more∣over, some might be moved by the exam∣ples of those Nations, which for many ages lived happily enough under a Go∣vernment plainly regal * 1.230. The Cities † 1.231 under Eumenes, saith Livy, would not have changed their fortune with any free City whatsoever. L. 42. Some∣times also the State of the * 1.232 City is such, that it cannot be safe, unless under the free Empire of † 1.233 One: which conceipt many prudent men had of the Roman, as the case stood in the time of Caesar Augustus. For these causes therefore, and the like, it may not only possibly, but
doth usually come to pass, that men sub∣ject themselves to the Empire and pow∣er of another: which also Cicero notes in the second of his offices.
FUrther yet, by a just War (as we have said afore) as private dominion may be acquired, so also civil dominion, or the right of reigning without depen∣dence. Neither do I speak this only in behalf of the Empire of One, where that is receiv'd, I would not be so mi∣staken: but the same Arguments are of force for conserving the Empire of ma∣ny, where many nobles or states have this same right of supreme power, and govern the City, the Plebeians being excluded. What, that no Common-wealth hath ever been found so popu∣lar, wherein some, such as are very poor or foreigners, and also Women and Youth are not kept from publick Counsels? Besides, some † 1.234 States have other people under them, not less sub∣ject, than if they did obey Kings. Whence that question, Is the Collatin
people in their own power? and the Cam∣panians, when they had yielded up themselves to the Romans, are said to be under the power of others. Many are the examples to this purpose; and they are all of no value, if we once grant this, that the right of ruling is al∣waies subject to the judgement and will of them who are ruled. But on the con∣trary, it is evident both by sacred and prophane history, that there are Kings * 1.235 that are not inferiour to the people, though taken all together. If thou shalt say, saith God speaking to the people of Israel, I will set a King over me: and to Samuel, Shew unto them the right of the King that shall reign over them. Hence is a King called, the A∣nointed over the people, over the in∣heritance of the Lord, over Israel: Sa∣lomon King over all Israel. So David giveth thanks to God, for subduing his people under him. The Kings of the Nations, saith Christ, bear rule over them. And that of Horace * 1.236 is well known:
Commands of Kings their subjects move: And Kings are subject unto Jove.Seneca thus describes the three forms * 1.237 of Government: Sometimes the peo∣ple
are they whom we ought to fear; some∣times, if the Discipline of the Common-wealth be so, that most things be trans∣acted by the Senate, the gracious men therein are feared; sometimes single persons to whom the power of the people and over the people is given. Such are they who, as Plutarch saith, have a command not only according to the Laws, but over the Laws also; and, in Herodotus, Otanes thus describes a single Empire: to do what one pleaseth, so as not to be accomptable to any other; * 1.238 and Dio Prusaeensis defines a Kingdom; to have command without controul. Pausanias * 1.239 opposes a kingdom to such a power as must give account to a supe∣riour. Aristotle saith, there are some Kings with such a right, as else where the Nation itself hath over it self, and that which is its own. So, after that the Ro∣man Princes began to take upon them * 1.240 an Authority truly regal, the people is said to have conferred upon them all their Authority and power, and that o∣ver themselves, as Theophilus interprets. Hence is that saying of M. Antonius the Philosopher: None but God alone can be * 1.241 judge of the Prince. Dion. of such a Prince: He is free, having power over himself and the Laws, that he may * 1.242 do what him pleaseth, and what likes him not, leave undone. Such a king∣dom was of old that of the Inachidae a•…•…
Argos * 1.243; far different from the Atheni∣an Common-wealth, where Theseus † 1.244, as Plutarch tells us, acted only the part of a General, and Guardian of the Laws, in other respects not superiour * 1.245 to the rest. Wherefore, Kings subject to the people are but improperly cal∣led Kings: as after Lycurgus, and more, after the Ephori were established, the Kings of the Lacedemonians are said † 1.246 to have been Kings in name and title, not really and indeed. Which exam∣ple was also followed by other States in Greece. Pausanias Corinth. The Ar∣gives in love of equality and liberty have * 1.247 long since very much abated the regal power, so that they have left the Sons of Cisus, and his posterity, nothing beside the name of a Kingdom. Such Kingdoms Aristotle saith, do not make any proper kind of Government, because they only are a part in an Optimacy or Populacy. Moreover, in Nations that are not perpe∣tually subject unto Kings, we see exam∣ples as it were of a Kingdom tempo∣rary * 1.248, which is not subject to the peo∣ple. Such was the power of the Amy∣mones among the Cnidians, and of the Dictators among the Romans in the first
times, when there was no appeal 〈◊〉〈◊〉 the people: whence the Dictators E∣dict, as Livy saith, was observed as 〈◊〉〈◊〉 Oracle, and there was no help but 〈◊〉〈◊〉 their care of obeying it: and the force of the regal power, was besieged with the Dictatorship, as Cicero speaketh.
THe Arguments brought on the con∣trary part are not hard to be solved. For first, that they affirm the Constitu∣ent to be superiour to the Constitutel is true only in that constitution whose effect perpetually depends on the will of the Constituent; and not in that which at first proceeds from the will, but afterward hath the effect of necessi∣ty: even as a woman makes to her self a husband by consent, whom she must of necessity obey for ever. Valentinian the Emperour, to the Souldiers who had made him so, when they asked somewhat of him which he thought un∣reasonable, gave this answer * 1.249: To elect me to rule over you, was in your power, O my Souldiers, but since you have e∣lected me, the thing you ask is at my plea∣sure,
not yours. You as subjects ought to obey, I must consider what is fit to be done. Besides, the Assumption is not true, that all Kings are constituted by the people: which may be sufficiently understood by the examples of a Father of a family admitting Tenants on con∣dition of obedience, and of Nations o∣vercome in War, which above are men∣tioned. Another Argument they draw out of that sentence of Philosophers; All Government is for the benefit of them that are govern'd, not of them that do govern: Whence they think it follows from the Nobilitie of the end, that the Governed are superiour to the Gover∣nour. But, neither is that universally true, The good of the governed is the end of all Government: for some Go∣vernments are by themselves for the Ru∣lers sake, as that of a Master: for the servants profit is there extrinsecal and adventitious; even as the Physicians F•…•…e pertains nothing to the Medicine it self. Other Governments there are for mutual benefit, as the Husband's. So, certain Empires may have for their end the utility of the Kings; namely, such as are gotten by conquest, and are not therefore to be called Tyrannical, seeing Tyranny, as the word is now taken, in∣cludes injustice. Some also may respect as well his utility that rules, as his that is ruled; i. e. when an impotent people
set over themselves a potent King 〈◊〉〈◊〉 their defense. Yet do I not deny, that in many Empires is properly respe∣cted the profit of the subjects; nad true it is, which Cicero after Herodo∣tus, Herodotus after Hesiod hath de∣liver'd, That Kings were constituted to the end justice may be had. And yet, it doth not follow thence, what they infer, that the people are superiour to the King; for tutelage also was found out for the Pupils good, yet is tuition a right and power over the Pupil. Nor is the objection of any moment, if 〈◊〉〈◊〉 say, the Tutor may be put out of his charge upon mal-administration of the Pupils estate, and therefore the same must take place upon the King: for this holds in the Tutor, who hath a Supe∣rior; but in Empires, because a progress in infinitum is not granted, we must by all means make a stop in some per∣son or persons, whose faults, because they have no Superior Judge, God him∣self * 1.250 testifies that he takes into his pe∣culiar cognizance. And he either doth justice upon them, if he judgeth it to be needfull, or else forbeareth them for a punishment or tryal of the people. Excellently saith Tacitus: As drougth * 1.251 or excessive rain and other evils of nae∣ture,
so bear ye patiently the luxury or avarice of Rulers. Vices will continue as long as there are men: but, neither are they continual, and they are recom∣pensed by the intermixture of better things. And it was a good saying of M. Aurelius: Magistrates judge of private persons, Princes of Magistrates, God of Princes * 1.252. Notable is the place in Gregorius Turonensis, where that Bi∣shop thus addresses himself to the King of France: O King, if any one of us go beyond the bounds of justice, he may be corrected by you: but if you exceed, Who shall chastise you? For we speak unto you, and you hear us, if you will; but if you will not, who shall condemn you, but He who hath pronounced Him∣self to be JUSTICE? Among the doctrines of the Essens, † 1.253 Porphyry remem∣bers this: That Empire falleth not to any man without Gods * 1.254 especial care, Irenaeus very well: By whose appoint∣ment men are born, by his appoint∣ment also Kings are constituted, fit for the people, who in those times are go∣govern'd
by them. There is the same sense in the Constitutions which are call'd Clement's: Thou shalt fear the * 1.255 King, knowing that he is chosen by the Lord. Nor doth it overthrow these things which we have said, that we read the people punished sometimes for * 1.256 the sins of their Kings: for this cane not so to pass, because the people dd not punish nor restrain the King, but because they did, at least tacitely, con∣sent to his faults. Nevertheless it is certain too, without that, God might use his supreme dominion, which he hath over the life and death of every one, for to punish the King; whose punishment indeed it is, to be deprived of his Sub∣jects.
OThers there are, who feign un•…•… themselves a certain mutual sub∣jection, so that the whole people ought to obey the King governing well; and the King governing ill, ought to be sub∣ject to the people. These men, if they did say, Things manifestly unjust are not to be done at the Kings command, would speak a truth, which is acknow∣ledged among all honest men: but this includes no coaction, or right to com∣mand the King. And, had it been the purpose of any people to divide the
power with the King (of which we shall say somewhat hereafter) such bounds surely ought to have been as∣signed to either power, which might easily be distinguisht by the difference of places, persons, or affairs. But, the goodness or illness of act, especially in civil matters which oft have an obscure disceptation, are not fit to distinguish parts. Whence very great confusion cannot but follow, whilst under pre∣tence of a good or evill act, on the one side the King, on the other side the peo∣ple draw unto themselves, according to their right of power, the cognizance of the same matter. Such a perturbation of things, so far as I can remember, ne∣ver any people was so phantastick as to introduce.
FAlse opinions being removed, it re∣mains that we set down some cau∣tions, that may open a way to make a right judgement, to whom the right of supreme power in every Nation be∣longs. Our first caution is, that we be not deceived with the ambiguous sound of a name, or the shew of external things. For example, although among the La∣tins principality and Kingdom are wont to be opposed, as when Caesar saith, the
Father of Vercingetorix held the prin∣cipality of Gallia, but was slain for af∣fecting the Kingdom; and when Pisi in Tacitus calls Germanicus the Son of a Prince of Romans, not of a King of Parthians; and when Suetonius saith Caligula wanted but a little of turning the principality into a Kingdom; and when Maroboduus is said by Velleius to have embraced in his mind, not a prin∣cipality consisting in the will of those that obey, but a regal power: Never∣theless, we see these names are often times confounded; for, both the Lace∣daemonian Leaders of Hercules posteri∣ty, after they were subject to the Epho∣ri, were yet stiled Kings, as we have said afore; and the antient Germans had Kings, which, as Tacitus speaketh, were Soveraign by the authority of per∣swading, * 1.257 not by the power of comman∣ding. * 1.258 And Livy saith of King Evander, that he ruled by authority rather than command: and Aristotle and Poly∣bius call Suffetes King of the Cartha∣ginians, and Diodorus too, as also Han∣no * 1.259 is called King of the Carthaginians by Solinus. And of Scepsis in Troas * 1.260
Strabo relates, when having joyned to them the Milesians into one Common-wealth, they began to use a popular Government, the posterity of the old Kings retained the royal name & some∣what of the honour. On the contra∣ry, the Roman Emperors, after that o∣penly and without any dissimulation they held a most free regality, yet were stiled Princes. Moreover, Princes in some free Cities have the Ensigns and marks of royal Majesty given unto them. Now, the Assembly of the States * 1.261, that is, of them that represent the people distributed into classes, in some places indeed serve only to this purpose, that they may be a greater Council of the King, whereby the com∣plaints of the people, which are oft con∣cealed in the Privie Council, may come unto the Kings ear: in other places have a right to call in question the actions of the Prince, and also to prescribe Laws, whereby the Prince himself is bound. Many there are, who think, the difference of the highest Empire, or of that less than the highest, is to be taken from the conveyance of Empire by way of election or succession. Empires devolved this way, they affirm to be highest, not those that come the other way. But it is most certain, this is not universally true; for succession is not the title of Empire, which gives it form,
but a continuation of what was before The right begun from the election 〈◊〉〈◊〉 the Family is continued by succession wherefore, succession carries down 〈◊〉〈◊〉 so much, as the first election did confe•…•… Among the Lacedemonians, the King∣dom passed to the Heirs, even after 〈◊〉〈◊〉 Ephori were ordained. And of such Kingdom, that is, a principality, 〈◊〉〈◊〉 Aristotle * 1.262: some of them go by rige•…•… of bloud, some by election: and in the Heroical times most Kingdoms in Greece were such, as besides him, Thucydid•…•… * 1.263 notes. On the contrary, the Roma•…•… Empire, even after all the power boti•…•… of Senate and people was taken awa•…•… was bestowed by election.
LEt this be the second caution. 〈◊〉〈◊〉 one thing to enquire of the thing, •…•…nother * 1.264 of the manner of holding it: which is appliable not only to corporal things but incorporal also. For, as a Field is a thing possessed, so is a passage, an act, a way. But these things some hold by a full right of propriety, others by a righ•…•… usufructuary, other by a temporary right; So the Roman Dictator, by a tempo∣rary * 1.265 right, had the Highest power: and some Kings, both the first that are elected, and they that succeed them in a lawful order, by an usufructuary right;
but some Kings by a full right of pro∣priety, as they that by a just War have gotten their Empire, or into whose pow∣er some people, to avoid a greater evill, have so given up themselves, that they excepted nothing. Neither do I assent to them, who say the Dictator had not the highest power, because it was not perpetual; for the nature of moral things is known by the operations: wherefore such faculties as have the same effects are to be called by the same name. Now, the Dictator, within his time, exerciseth all acts by the same right * 1.266, as a King of the best right; nor can his act be ren∣dred void by any other. As for duration, that changeth not the nature of the thing: though if the question be of dig∣nity, which is wont to be stiled Ma∣jesty, this is greater, no doubt, in him to whom perpetual right is given, than to whom temporary right; because the manner of the Tenure is of moment in respect of dignity. And I would have the same understood of these, that be∣fore Kings come to age, or whilst they are hindred by loss of reason or their li∣berty, are appointed Curators of the Kingdom, so, that they be not subject to the people, nor, their power revo∣cable before the appointed time. Ano∣ther judgement is to be made concerning those that have received a right revoca∣ble at any time, that is, a precarious
right, such as of old was the Kingdom of the Vandals in Africa, and of the * 1.267 Goths in Spain * 1.268, when the people de∣posed them, as oft as they were displea∣sed † 1.269; for every act of such Kings may be rendred void by these that have given them a power revocably; and therefore, here is not the same effect, nor the same right, as in other cases.
THat which I have said, that some Empires are in full right of proprie∣ty, i. e. in the patrimony of the Ruler, is opposed by some learned men with this Argument, That free-men are 〈◊〉〈◊〉 * 1.270 in commerce. But, as power is either Lordly, or Regal; so also Liberty is ei∣ther personal, or civil; and again, either of single persons, or of all together: for the Stoicks too did say, there is a certain servitude consisting in * 1.271 subje∣ction; and in the holy Scriptures the Kings subjects are call'd his servants. As therefore personal liberty excludes Master-ship, so civil liberty opposes re∣gality, and any other dition properly so
called. So Livy opposeth them, saying, The people of Rome are not in a kingdom, * 1.272 but in liberty: and elsewhere he distin∣guisheth the people enjoying liberty * 1.273 from those that lived under Kings. Cicero † 1.274 said, Either the Kings should not have been expell'd, or liberty should have been given to the people really, and not in words. After these Tacitus, The City of Rome from the beginning was under Kings: L. Brutus brought in Li∣berty and the Consulship. Strabo saith of Amisus, it was sometime free, some∣time under Kings. And frequently in the Roman * 1.275 Laws, foreiners are di∣vided into Kings and free State:. Here then the question is not concerning the liberty of single men, but of a people. And further, as for private, so for this publick subjection some are said to be, not of their own right, not of their own power † 1.276. Yet properly, when a people is alienated, the men themselves are not alienated but the perpetual right of go∣verning them, as they are a people. So, when the freed servant of a Patron is assigned to one of his children, it is not the alienation of a freeman, but he trans∣cribes and makes away the right he had over another man. Nor is that more firm, which they say, If a King hath
gotten any people by War, whereas he subdued them not without the bloud and sweat of his subjects, they are rather to be taken for the acquest of the Sub∣jects than of the King. For haply, the King maintain'd his Army out of his own private * 1.277 substance, or out of the profits of that Patrimony † 1.278 which fol∣lows his principality; for suppose a King hath but the usufruit of that very Pa∣trimony, as also of the right of gover∣ning the people which hath elected him, yet are those fruits his own. (As it is declared in the † 1.279 civil Law, that the fruits of an inheritance, which is commanded to be restored, are not restored; because they arise not from the inheritance, but from the Thing.) Wherefore it may come to pass, that a King may have command over some people by a pro∣per right * 1.280, so that he may also alienate them. Strabo † 1.281 saith, the Island Cy∣thera lying over against Taenarus was by his own private right pertaining to Eurycles Prince of the Lacedemonians. So, King Salomon gave to Hirom * 1.282, King of the Phenicians, twenty Cities; not
of the Cities of the Hebrews: for Cabul (which name is attributed to those Ci∣ties) is seated without the Hebrew bounds, Jos. 19. 27. but of those Cities, which the conquered Nations, enemies * 1.283 of the Hebrews, had retained till that * 1.284 day; and which partly the King of E∣gypt, Salomon's Father-in-Law, had o∣vercome, and given as a dowry to him, partly Salomon himself had taken in; for that they were not inhabited by the Israelites, at that time, is proved by this argument, because after Hirom restored them, then at last Salomon carried thither Colonies of the Hebrews. So Hercules * 1.285 is read to have given to Tyndareus the Empire of Sparta taken in War, u∣pon * 1.286 these terms, that if Hercules should leave any children, it should be retur∣ned to them. Amphipolis was given as a dowry to Acamas the Son of Theseus; And in Homer Agamemnon promiseth to give Achilles seven Cities. King A∣naxagoras freely bestowed two parts of his Kingdom upon Melampus * 1.287. † 1.288 Ju∣stin saith of Darius, He gave by Testa∣ment the Kingdom to Artaxerxes, to
Cyrus certain Cities, whereof he was Governour. So the successors of A∣lexander are to be thought, every one for his part, to have succeeded into that full right and propriety of ruling over the Nations, which were subject to the * 1.289 Persians, or else themselves to have ac∣quired that power by the right of Vi∣ctory. Wherefore it is no marvell if they assumed to themselves a right of aliena∣tion. So when King † 1.290 Attalus the Son of Eumenes had by his testament made the people of Rome heir of his Goods, the people of Rome under the name of Goods comprehended his Kingdom too. And after when Nicomedes King of Bi∣thynia dying had made the Roman peo∣ple Heir, the Kingdom was reduced into the form of a * 1.291 Province.
BUt in Kingdoms which are conferred by the will of the people, I grant * 1.292 it is not to be presumed that it was the will of the people, that an alienation of his Empire should be permitted to the King. Wherefore, what Crantzius notes in Unguinus as a new thing, that he had bequeathed Norway by his testa∣ment, we have no reason to disapprove, if he respecteth the manners of the Ger∣mans, among whom Kingdoms were not held with so full a right. For, wher∣as Charls the Great and Lewis the pi∣ous and others after them even among the Vandals and Hungarians have dis∣posed of Kingdoms in their testaments, that had rather the vertue of a commen∣dation † 1.293 among the people, than the force of a true alienation. And of Charls, Ado specifies the same, that he desired his testament should be confirmed by the chiefest of France. Whereunto that is like which we read in Livie, that Philip King of Macedonia, when he had a mind to keep Perscus from the King∣dom, and in his place to advance
Antigonus, his Brothers Son, visite•…•… the Cities of Macedonia to commen•…•… † 1.294 Antigonus to the Princes. Nor is 〈◊〉〈◊〉 material, that the forementioned Lew•…•… is read to have rendred the City Rome to Pope Paschal, seeing the Franks migh•…•… rightly render to the people of Rome that power over the City, which they had received from the same people: 〈◊〉〈◊〉 which people he did sustein as it We•…•… the person, who was Prince of the first order.
THe truth of our foresaid note, about distinguishing the height of power from the fulness of having it, will ap∣pear in this, that as many highest Em∣pires are not, so many not highest are held fully. Whence it is that * 1.295 Mar∣quessates and Earldoms are wont to be sold and disposed of by will more easily than Kingdoms. Moreover the same di∣stinction shews it self in the Protector∣ship † 1.296, whilst a King, either by non-age or by disease, is unable to manage his own power. For, in Kingdoms that are not Patrimonial, the Protectorship be∣longs to them, to whom the Publick
Law, or in defect thereof the consent of the people * 1.297 doth commend it: in Patrimo∣nial Kingdoms, to them who are chosen by the Father † 1.298 or by the next of Kin. So we see in the Kingdom of the Epirots, which arose from the peoples consent, Aribas a Pupil-King had Tutors pub∣likely appointed him: and so had the post∣hume Son of Alexander the Great by the Macedonian Peers. But in the lesser Asia, gotten by War, King Eumenes appointed his Brother to be Tutor to his Son Attalus. So Hiero the Father reigning in Sicily ordained by his te∣stament whom he pleased to be Tutors to his Son Hierom. Now, whether a * 1.299 King be withall, in his private right, a Lord of Land, as the King of Egypt * 1.300 was after the time of Joseph, and the Indian Kings which Diodorus and Stra∣bo speak of; or be not, this is extrin∣secal to his Empire, and perteins not to the nature of it: wherefore, it neither maketh another kind of Empire, nor another manner of holding the same Em∣pire.
LEt this be observed in the third place, An Empire ceaseth not to be supreme, although hee that is to rule promise certain things
* 1.301 to the subjects or to God, even su•…•… things as pertain to the way of ruling. Nor do I now speak of keeping the na∣tural and divine Law, adde also that of Nations, unto which all Kings are bound, though they promised nothing; but of certain rules, to which without a promise they were not bound. The truth of what I say appears by silimi∣tude of a Father of a Family: who, 〈◊〉〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government, shall not thereby cease to have, so far as may be in a Family supreme right therein. Nor is the Hus∣band deprived of marital power, be∣cause of some promise to the Wise. I confess, by this means the Empire is in some sort streightned, whether the obligation ly upon the exercise of the act only, or also directly upon the faculty it self. In the first way, the act done against promise will be unjust: because, as we shew elsewhere, a true promise gives hima right, to whom 'tis made: and in the other way, it will be null by want of faculty. Nor yet doth it thence follow, that he that makes the promise hath any superiour: for, in this case, the act is rendred null, not by superiour force but in Law. Amongst the Persians, the King was Supreme and absolute * 1.302; adored as the Image of God: and as Justin † 1.303 saith, he was not chan∣ged
but by death. A King was he that to the Peers of Persia spake thus: I * 1.304 have called you together, that I might not seem to use only my own Counsel: but remember it is your duty rather to obey than perswade. Yet he took an oath at his entrance, as Xenophon and Diodorus Siculus have noted, and it was not lawful for him * 1.305 to change certain Laws made after a particular form. The same is related of the Ethiopian Kings by * 1.306 † 1.307 Diodorus Siculus. And by his relation the Egyptian Kings, who (no doubt) as well as other Kings of the East had Supreme power, were bound to the ob∣servation of many things: but, if they had done the contrary, could not be accused living; dead, their memory was accused * 1.308, and being condemned they wanted solemn burial: as also the bo∣dies of the Hebrew Kings † 1.309, who had reigned ill, were not buried in the roy∣al Sepulchers: an excellent tempera∣ment, whereby, both the highest pow∣er was kept sacred, and yet by fear of a future judgement, Kings were kept from breaking their trust. That the Kings al∣so of Epirus were wont to swear, they would reign according to the Laws, we
learn of Plutarch * 1.310 in the life of Pyr∣rhus. But suppose it be added, If the King breaks his trust, he shall be dep•…•…∣sed † 1.311? Yet will not the power hereby cease to be the highest, but the mann•…•… of holding it weakned by this conditi∣on, and the Empire will be as it were temporary. It is said of the King of Sabaeans, that he was absolute * 1.312 and of a most free power, but that he might be stoned if he went out of his Palace † 1.313. In like manner, an estate of Land, that is held in trust, is an estate, as well as if it were possessed in full dominion, but it is holden for a time or at the plea∣sure of another. And such a Commis∣sory Law or condition may be annexed not only in the bestowing of a King∣dom, but in other contracts; for some Leagues too with neighbours, we see, are entred with the like * 1.314 sanction.
FOurthly it must be noted, Although the highest power be one and undivi∣ded by it self, consisting of the parts a∣bove set down, supremacy * 1.315 being added; Yet may it sometimes happen to be divided * 1.316, either by parts, which they call potential, or by parts subjective.
So when the Roman Empire was one, it often came to pass, that one Ruler had the East, another the West, or that three divided the world between them. And so it may be, that a people choosing a King may reserve some acts to themselves, and may commit others to the King with full right. Yet is not that done, as we have shewed already, whensoever the King is bound up with certain promi∣ses, but then we must conceive it to be done, if either a partition be made ex∣presly † 1.317, of which we have spoken afore; or, if a people, yet free, lay upon their future Kings a charge by way of an abiding precept; or, if a clause be added to signifie that the King may be compeld or punisht. For a precept is from a superiour, superiour at least in that particular which is given in precept: and to compell is not alwaies the pro∣perty of a superiour (for also natural∣ly every one hath a right to compel his debtor) but is repugnant to the nature of an inferiour. Parity therefore at least follows from coaction, and so a division of the supremacy. Against such a State, as being double headed, many allege many incommodities: but (as we have also said above) in civil affairs there is nothing wholy without incommodities; and Right is to be measured, not by that which seems best to you or me, but by the will of him whence right ariseth.
An antient example is brought by Pla•…•… in his third de legibus: For when the House of Hercules had built Arg•…•… Messena and Lacedemon, the King were bound to keep their Governmen•…•… within the bound of prescribed Laws; an•…•… whilst they did so, the people were obli∣ged to leave the Kingdom to them and their posterity, and suffer none to take it from them. And to this, not only King and their own people have mutually 〈◊〉〈◊〉 venanted, but Kings with other Kings, * 1.318 and one people with another people, and Kings with neighbourig States, and States with neighbouring Kings, have entred into Covenant, and promis'd aid to 〈◊〉〈◊〉 other respectively.
YEt are they much deceived, who think the power of Kings divided, when they will have some of their acts not accounted firm unless they be ap∣proved by the Senate, or some such As∣sembly. For the acts voided for want of such approbation, must be understood to be cancelled by the Kings own com∣mand, who ordained this by way of caution, lest any thing fallaciously gai∣ned from him, should pass under the notion of his true and deliberate will.
King Antiochus the third sent such a * 1.319 •…•…escript to the Magistrates, that they •…•…hould not obey him, in case he should command any thing against Law: and Constantin published the like, that Or∣phans and Widows be not constreined to come to the Emperours Court for Justice, no not if the Emperours rescript •…•…e shewed. Wherefore this case is like to that of testaments, which have a clause, that no later testament shall be of force: for this clause also makes it be presumed, that the later testament proceeds not from the true will of the maker. Nevertheless, as this clause, so that other by the Kings express com∣mand and special signification of his later will may be annulled. Again, I do not here use the authority of Polybius neither, who refers the Roman Common∣wealth to a mixt kind of Government; which, at that time, if we respect not the doings themselves but the right of doing, was meerly popular. For, both the authority of the Senate, which he refers to an Optimacy, and of the Con∣suls, whom he will have to be like Kings, was subject to the people. The same may be said concerning other wri∣ters of the Politicks, who conceive it more agreeable to their design, to behold rather the external appearance and daily administration of affairs, than to weigh the right itself of the highest power.
MOre pertinent is that which Ari∣stotle hath written: Between 〈◊〉〈◊〉 full Kingdom * 1.320, and a Laconical † 1.321 which is a meer principality, some other species are interjected. An example hereof, as I suppose, may be found in the Hebrew Kings; for, of these, that they ruled, in most things, by the high∣est right, I think it is impiety to doubt; for the people desired such a King as their neighbours * 1.322 had: but the Nations of the East were subject to their Kings in the most humble way † 1.323. And above we have noted, that the whole Hebrew peo∣ple was under the King. And Samuel describing the right of Kings, sufficient∣ly shews that the people have no pow∣er left in themselves against the Kings injuries. Which the Fathers do rightly gather from that of the Psalm: Against thee only have I sinned. Upon which
place Hierom * 1.324: Because he was a King, and feared not another. And Ambrose: Being a King, he was in danger of no Laws, because Kings are free from such bonds; neither do any Laws bind them over to punishment, being secured by their Soveraign power † 1.325: against man there∣fore he sinned not, to whose restraint he was not obnoxious. I see there is consent among the Hebrews, that stripes were inflicted on the King offending against those written Laws exstant about the Kings office; but those stripes among them had no insamy, and they were of his own accord received by the King in token of repentance, and therefore he was not beaten by an Officer, but by one whom he was pleased to make choice of, and at his own pleasure he was eased. As to coactive punishments, the Kings were so free from them, that e∣ven the Law of excalceation, as having in it something ignominious, was not of force upon them. The Hebrew Barnach∣mon hath a sentence exstant amongst the sayings of the Rabbins, in the title of Judges: * 1.326 No creature judgeth the King, but the blessed God. These things being so, neverthelels I think some causes were exempted from the Kings judgement, and remained in the power of the Synedry of LXX. instituted by Moses at Gods command, and by perpetual succession continued to the times of Herod. There∣fore, both Moses and David call Judges
Gods, and judgements are called the judge∣ments of God, and Judges are said to judge not in the place of man but of God. 〈◊〉〈◊〉 the matters of God are plainly distin∣guisht from the matters of the King where, by the matters of God, the mos•…•… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉〈◊〉 Gods Law. The King of the Jews, 〈◊〉〈◊〉 deny not, exercised by himself certain capital judgements (in which particulae Matmonides prefers him before the King of Israel) which also is evinced by exam∣ples not a few, both in the sacred Scrip∣ture and in the writings of the Hebrews: Yet certain kinds of causes seem no•…•… permitted to the Kings cognizance, viz. of the Tribe, of the high Priest, of the * 1.327 Prophet. And hereof there is an argu∣ment in the history of the Prophet Jere∣my, whom when the Princes required unto death, the King answered: Behold, he is in your power, for the King can do nothing against you: to wit, in this kind of matters. Yea, and the person that for any other cause was impeached before the Synedry, could not by the King be exempted from their judgement. There∣fore * 1.328 Hircanus, when by power he could not hinder their judgement concerning Ho∣rod, eluded the same by Art. In Macedonia, they that descended from Calanus, as Ca∣listhones in Arrian saith, bare rule over that people not by force but by Law. The Macedonians, saith Curtius, are accustomed * 1.329
to the Regal government, yet are in a grea∣ter shadow of liberty than other nations: For even the judgment of life and death was not in the Kings hand. Of Capital matters, saith the same Curtius, by the * 1.330 old custome of the Macedonians, the Ar∣my did enquire, in time of Peace the Com∣mons; the power of the Kings prevailed no further than their authority could move. There is in another place of the same Au∣thor another token of this mixture: The Macedonians decreed according to the cu∣stome * 1.331 of their nation, that the King should not hunt on foot, without the attendance of his elect Princes or courtiers. Taci∣tus relates of the Gothones: They are now in greater vassalage under their Kings, than other Germans: nor are they yet depriv'd of all liberty. For he had afore describ'd the principality by the authori∣ty of perswading, not by the power of Commanding: and after he expresseth a full Royalty in these words: One com∣mandeth, without all exceptions, not by a precarious right of governing. Eustathius upon the sixt of the Odysses, where the Commonwealth of the Phaeaces is des∣cribed, saith it had a mixture of Power, of the King, and of the States † 1.332. Some∣thing like it I observe in the times of the
Roman Kings; for then all matters almost went through the Royal hand. Romulus reigned over us, as he pleased, saith Taci∣tus. It is manifest, at the beginning of the City Kings had all power, saith Pomponius: yet Halicarnassensis will have something excepted by the people even at that time. But if we give more credit to the Roman Authors, in some causes there lay an ap∣peal from the Kings to the people, as Se∣noc•…•… hath noted out of Cicero's books de * 1.333 Republica, out of the Pontifical books al∣so, and Fenestella; shortly after, Servius Tullus advanced to the Throne, not so much by right, as by the favourable breath of the people, yet more abated the regal power. For, as Tacitus speaketh, * 1.334 he establisht Laws, which even the Kings themselves were to obey. The less cause have we to wonder at that which Livy saith, The power of the first Consuls dif∣ferd from the regal in little more than that 'twas annual. Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm, and in the first times of the Consuls. For in
certain affairs, and those of the greatest moment, the will of the people was a law, if the Fathers would go before them with their authority * 1.335, and (as it were) pre∣pare the bill; which authority afterward, the peoples power encreased, was onely for a shew, when the Fathers, as Livy and Dionysius note, began with their voices, but the Assembly did what they pleased. For all this, in after times there remained somewhat of a mixture, whilst, as the same Livy speaketh, the Govern∣ment was in the hand if the Patricians, that is, of the Senate, but the Tribunes, that is, the Plebeians, had a share, to wit, a right of forbidding or interceding. And so Isocrates will have the Athenian Commonwealth, in Solon's time, to have been * 1.336 an Optimacy mixt with a Demo∣cracy.
UPon these premises, let us examin some questions, which are of frequent use in the argument we have in hand. The first is, whether He may have su∣preme power, who is comprehended in an unequal league. By an unequal League I understand here, not that which is made between parties unequal in their forces, as the Theban City in the time
of Pelopidas had a league with the King of Persians, and the Romans of old with the Massilians, and afterward with King * 1.337 Massanissa; nor that which hath a tran∣sient act, as when an enemy is receiv'd to friendship, on condition he pay the cost of the war, or perform somewhat else: but, that which in the very nature of the agreement gives a certain permanent pre∣lation to one side; that is, when the one is bound to conserve the Empire and Ma∣jesty of the other; as it was in the league of the Etolians with the Romans; that is, both to endeavour that the others Empire may be in safety, and that his dignity, which is signified by the name of Maje∣sty, may be inviolat † 1.338. Unto which kinde are to be referr certain Rights of them which are now calld Rights of Protecti∣on, Advocacy, Mundiburg: also the Right of mother-cities amongst the Gre∣cians over their Colonies. For the Colo∣nies wereas free, saith Thucydides, as the mother-Cities, but they ought to exhibit * 1.339 reverence to their Metropolu, and certain signes of honour. Livy saith of the old * 1.340 league between the Romans, who had re∣ceived all the right of Alba, and the La∣tins of the Alban race: In that league the Roman state was superiour. Rightly speaks Andronicus Rhodius after Ari∣stotle: It is the property of friendship 'twixt * 1.341 unequals, that the stronger have more ho∣nour, and the weaker have more help. We
know what Proculus answerd to this que∣stion, * 1.342 to wit, that the people is free which is sub ect to the power of no other, though it be contained in the league, that that people should fairly conserve the Maje∣sty of the other people. If then a people bound in such a league remain free, if they be not subject to anothers power, it followes that they retain the highest power. And the same is to be said of a King; For there is the same reason of a free people and of a King, who is truly so. Proculus addes, such a clause is in the league, to signify, the one people is su∣periour, not that the other is not free. Superiour here is meant, not in power (for before he had said, the one people is subject to the others power) but in au∣thority and dignity; which the follow∣ing words do express by a fit similitude: As we understand our Clients to be free, though they be not equal to us, neither in authority, nor in dignity, nor in every right: So also are they to be conceived free, whose duty it is to have a fair respect to the conservation of our Majesty. Clients are under the trust of their patrons, so are a people inferiour * 1.343 in the league under the trust of that people which in dignity is superiour. They are under patronage not under rule, as Sylla speaks in Appian † 1.344. Livy * 1.345 saith, in parte, non in ditione: and † 1.346 Cicero, describing those more honest times of the Romans, tells us, they had
patrocinium sociorum, non imperium. With whom agrees well that saying of Scipio * 1.347 Africanus the elder: The people of Rome had rather oblige men by favour than fear, and unite forein Nations to them by a faithfull association, than subdue them to a grievous servitude: and that which Stra∣bo relates of the Lacedemonians after the Romans came into Greece: They remained free, conferring nothing, beside a friendly aide. As private patronage taketh not a∣way personal liberty, so publique patro∣nage taketh not away Civil liberty, which without supremacy of power cannot be understood. Therefore we see these are opposed in Livy, To be under protection, and To be under command: And Augu∣stus, in Josephus, threatens the Arabian King Syllaeus, unless he would cease from doing his neighbours wrong, He would take order, that of a friend he should be made a subject: of which quality were the Kings of Armenia, who (as P•…•…tus wrote to Vologeses) were within the Ro∣man dominion; and therefore were Kings, rather in the sound of the name than re∣ally: such as were the Cyprian and other Kings of old under the Kings of Persia: * 1.348 Subjects, as Diodorus saith.
PRoculus addeth somewhat which seem∣eth opposite to that we have said: There
are accused before us some of the confederat Cities, & after sentence of condemnation we inflict upon them punishment. But, for the understanding hereof, we must know, that four kindes of Controversies may happen. First, if the subjects of a peo∣ple or King, that is under the protection of another, be said to have done against the league: Secondly, if the people or the King himself be accused: Thirdly, if the Fellowes, which are under protection of the same people or King, contend with one another: Fourthly, if the subjects complain of the injuries of their own Rulers. In the first kinde, if a fault ap∣pear, the King or people is bound, either to punish the offendor, or to give him up to the party injured: which holds, not only 'twixt unequals, but between those that are equally confederat, yea and a∣mong them that are not at all confede∣rate, as we shall shew elswhere. He is al∣so bound to endeavour that dammages may be repaired: which at Rome was the Office of the Recuperators * 1.349. But one of the Associats in the league hath no di∣rect right to apprehend or punish the subjects of his confederate. Wherefore Decius Magius, a Campanian, being put in bands by Annibal, and carried to Cy∣rene, and thence to Alexandria, shewed that he was bound by Annibal against the league, and so was freed. In the se∣cond way, the confederate hath a right
to compell his Confederate, to stand to the Articles of the league, and, if he will not, to punish him. But this also is not peculiar to the unequall league: it hath place too in that which is equall. For, that one may take revenge of him that hath offended, 'tis sufficient, that he be not subject to the offender (of which els∣where:) wherefore the same thing comes to pass between Kings, or people not con∣federate. In the third kinde, as in an equal league, controversies are wont to be brought before an Assembly * 1.350 of the Con∣federates, to wit, such as are not concer∣ned in the question; as we read the Gre∣cians, the ancient Latins, and the Ger∣mans of old have done; or else before Ar∣bitrators, or before the Prince of the As∣sociation as a common Arbitrarot: So in a league unequal, it is agreed for the most part, that the controversies be debated be∣fore him who is superiour in the league. This therefore doth not prove any power of command: for Kings also do usually try their causes before judges of their own constitution. In the last kinde, the con∣federates have no right of cognizance. Therefore when Herod voluntarily carried to Augustus certain accusations against his sons; You might, said they, punish * 1.351 us your self, both as a father, and as King. And Scipio * 1.352, when Annibal was accus'd at Rome by certain Carthaginians, said, the Conscript Fathers ought not to in∣terpose
in a business of the Carthaginian * 1.353 Commonwealth. And herein (as Ari∣stotle teacheth) a confederacy and a com∣monwealth do differ, that Confederates * 1.354 take care no common injury be done un∣to them; not that the Citizens of a Con∣federate Commonwealth do no injury one against another.
IT is objected also, that in histories he that is superior in the league is some∣times said to command; he that is inferi∣or, to obey. But, neither ought this to move us. For, either it is treated of things pertaining to the common good of the So∣ciety, or of his private utility who is su∣perior in the league. In common affairs, out of time of Assembly, even where the League is equal, the custome is for him who is chosen Chief of the league, to have command over his Confederates, as Aga∣memnon over the Graecian Kings, the La∣cedaemonians over the Graecians afterward, and after them the Athenians. In the Speech of the Corinthians in Thucydides we read: It becomes them that are Princes of the league, not to seek their own parti∣cular advantage, but content themselves with an eminency above the rest in taking care of the common Interest. Isocrates re∣lates, that the antient Athenians had the conduct of Greece, and the charge of all
their Fellowes, but so, that they left them all their liberty entire. * 1.355 This the Lati•…•… call, Imperare to command, the Greek more modestly 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 to order. The Athe∣nians, when the conduct of the war a∣gainst the Persians was committed to them, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, saith Thucidides, they or∣dered (so the Commissioners from Rome to Greece were said to be sent thither † 1.356 for ordering the state of the free Cities) wh•…•… towns should contribute money against the Barbarians, what should provide stips. Now, if he doth this, who is only chief in a league, no marvell he doth the same who is superior, in a league unequal. Wherefore Empire in this sense, that is, the * 1.357 conduct of affairs, takes not away the liberty of others † 1.358. But in those things that concern the proper utility of the Su∣perior, his Requests are usually call'd Commands, not by right, but by like∣ness of the effect, as the Desires of Kings are so called, and as Physicians are said to rule their patients. Livy * 1.359: Before this Consul (C. Posthumius) never was any one in any thing a charge or burthen to our Confederates: therefore the Magistrats were furnisht with Mules, tents, and all
other necessaries, that they might not com∣mand such things from our Fellows. Mean while tis true, it often comes to pass, that the Superior in a league, if he much excell in strength, by little & little, usurps an Empire properly so calld, especially if the league be perpetual, with a right of bring∣ing in Garrisons into towns, as the Athe∣nians did, when they sufferd an appeal to be made unto them from their Fellows; which the Lacedemonians never did. In which times Isocrates compares the Em∣pire of the Athenians over their Confede∣rates, to a Kingdom. So the Latins com∣plaind, they endured servitude * 1.360 under the shadow of a league with Rome: so the Etolians, of a vain shew and empty name of liberty; and the Achaians after∣ward, that a league in appearance was now become a precarious servitude. So in Tacitus † 1.361 Civilis the Batavian complai∣neth of the same Romans: We are not As∣sociats, as heretofore, but are esteemed as slavos: and in another place, A mise∣rable slavery is falsly named peace. Eume∣nes also in * 1.362 Livy saith, the Fellows of the Rhodians were Fellows in word, indeed subjects to their Empire, and obnoxious: And Magnetes, that in shew Demetrias was free, but indeed all things were done at pleasure * 1.363 of the Romans. So Polybius notes, the Thessalians had a seeming li∣berty, but really were under command of the Macedontans. When these things are
done, and so done, that patience passe•…•… into a right (of which elswhere) then ei∣ther they which were Fellows become Subjects, or at least there is a partition of the supreme power, such as we have declared above to be possible.
I See no cause to doubt, but they that * 1.364 pay a certain Tribute † 1.365 either for re∣deeming of injuries, or to gain safeguard (such as were the Hebrew * 1.366 Kings, and of the neighbouring nations after the time of Antonius) may have the highest pow∣er; although this confession of their weakness diminish somewhat of their dig∣nity.
TO many it seems a more difficult que∣stion concerning feudal obligation, but it may easily be solved out of that which hath been said. For in this contract,
(which is proper to the German Nati∣ons, nor is any where found but where the Germans have seated themselves) two things are to be considered, Personal obli∣gation, and Right over the thing. Per∣sonal obligation is the same, whether one by feudal right possess the right it self of Governing, or any other thing also placed else where. Now, such an Obligation, as it would not take away from a private man the right of personal liberty, so nei∣ther doth it take away from a King or people the right of the highest power, which is civil liberty. Which is most ap∣parently to be seen in the free feuds which they call Franca, which consist not in a∣ny right over the thing, but in personal obligation onely. For these are nothing but a kind of unequal league, (wher∣of we have spoken) wherein the one par∣ty promiseth aid and service, the other safeguard & protection. Suppose also that aid was promised against All, which Feud they now call Ligium (for that word was of larger signification) this detra∣cteth nothing from the right of the highest power over subjects: not to mention now that there is alwayes a tacit condi∣tion, while the war is just, of which els∣where. But, as to the right over the thing, truly it is such, that the right it self of go∣verning, if it be holden in Fee, may be lost, either the family being extinct, or also for some sort of crimes. Yet in the mean it ceaseth not to be highest: for we
must distinguish (as hath been said) be∣tween the thing it self, and the manner of having it. And by such a right I see many Kings constituted by the Romans, so, that the royal family exspiring, the Empire should return to themselves: which is noted by Strabo concerning * 1.367 Paphlagonia and some other.
MOreover, both in Empire and Do∣minion, we must distinguish the Right from the Use of right, or the first act from the second. For as an Infant King hath right, but cannot exercise his power; so also one of an alienated mind, and in captivity, and that lives in the territory of another, so that freedome of action about his distant Empire is not permitted him: for in all these cases Cura∣tors or Vicegerents are to be given. Ther∣fore * 1.368 Demetrius, when being in the power of Saleucus he was under some re∣straint, forbad any credit to be had, ei∣ther to his seal, or letters, but appointed all things to be administred, as if he had been dead.
WAr may be waged, both by pri∣vate men against private, as by a traveller against a robber; and by those that have the highest power against those that have it likewise, as by David against the King of the Ammonites; and by private men against those that have the highest power, but not over them, as by Abraham against the King of Ba∣bylon and his neighbors; and by those that have the highest power over private men, either subject to them, as by David upon the part of Isboseth; or not subject, as by the Romans against the pirats. Only the question is, whether it be law∣full for private or for publique persons to make war upon them, under whose power, whether supreme or subordinate, they are. And first, that is beyond all controversy, Armes may be taken against inferiors by those who are armed by authority of the Highest power: as Nehe∣mias was armed by the Edict of Arta∣xerxers against the neighboring Gover∣nours. So the Roman Emperors grant * 1.370 leave to the Lord of the soil to force away the Camp-measurers. But it is inquir'd, what is lawful against the Highest Power, or the Lower Powers doing what they
doe by authority of the Highest. That's without controversy amongst all good men; If they command any thing con∣trary to naturall right or to the divine precepts, what they command is not to be done. For the Apostles, when they said, we must obey God rather than men, appealed to a most certain rule, written in all mens minds, which you may finde almost in the same words in Plato: but if for any such cause, or otherwise because it is the pleasure of the Soveraign, injury be offerd us, it is to be sufferd with pa∣tience, rather than resisted by force.
ALl men indeed naturally (as we have said above) have right to keep off in∣jury from themselves. But, Civil society being ordained for the maintenance of tranquillity, thereupon ariseth presently to the Commonwealth a certain greater right over us and ours, so far as it is ne∣cessary to that end. The Commonwealth therefore may, for publicque peace and order, prohibite that promiscuous right of resisting: and no doubt is to be made of the will thereof, when without that the end cannot be attained. For if that pro∣miscuous right of resisting continue, it wil not be now a Commonwealth, but a dis∣solute
multitude, such as were the Cy∣clops, of whom Euripides saith, Every * 1.371 one gives lawes to his wife and children, and, A confused company, where every one commands and none obeyes † 1.372: And the Aborigines, who, as Salust relates, were a savage kind of people, without laws, with∣out rule, disorderly and dissolute: and the Getulians, of whom he speaketh in an∣other place, that they were not govern'd, neither by customes, nor by the Law or command of any Ruler. The manners of all Commonwealths are so, as I have said: It is a general agreement of hu∣man society, saith Augustin, to obey Kings. * 1.373 To the Prince, saith Tacitus, have the Gods given supreme power; to the subjects is left the glory of obedience. Hic quoque,
Indigna digna habenda sunt Rex quae facit. Aequum at{que} iniquum Regiiimperium feras. Seneca. * 1.374Add that which is in Salust * 1.375. To doe what he will without punishment, that is to be King. Hence it is, that every where the Majesty, that is the dignity, whether of a people, or of One that hath the highest power, is defended by so many Lawes, by so many punishments: which dignity cannot consist, if the licence of resisting do remain. A Soldier, who hath resisted his Captain willing to chastise him, if he hath laid hold on his rod, is cashierd; if he purposely break it, or laid violent hand upon his Captain, dyes.
And in Aristotle it is, If one that beareth office beateth any man, he must not lift up his hand against him.
IN the Hebrew Law, he is condemned * 1.376 to death, who is disobedient, either to the High Priest, or to him who is extra∣ordinarily appointed by God to be Ruler of the people. That which is in Samuel * 1.377 of the Kings right, plainly appeares to him that looks rightly on it, neither to be understood of true right, that is, of a faculty to do a thing honorably and just∣ly (for a far other manner of life is pre∣scrib'd the King in that part of the Law, which declares his office) nor to signify a naked fact: (for there would be nothing peculiar in it, sith also private men are wont to do injuries to private men:) but a fact which hath some effect of right, that is, an obligation of non∣resistence * 1.378. Wherefore it is added, that the people opprest with these injuries should cry to God for help; to wit, be∣cause no human remedies remained. So then is this called right, as the Pretor is said reddere jus, to do right, even when * 1.379 he determineth unrightly.
IN the new Covenant Christ comman∣ding to give to Caesar the things that are Caesars, would have the disciples of his in∣stitution understand, that no less, if not greater obedience, with patience (if need be) is due to the Highest Powers, than the Hebrews owed to the Hebrew Kings: which his best Interpreter Paul the A∣postle explaining more at large, and des∣cribing the duties of subjects, amongst other words hath these: Whosoever resi∣steth the power, resisteth the ordinance of * 1.380 God: and they that resist shall receive to themselves damnation. He addes: For he * 1.381 is the Minister of God to thee for good. And again: Wherefore ye must needs be subject, not onely for wrath, but also for * 1.382 conscience sake. In subjection he inclu∣deth a necessity of not resisting, nor that onely that springs from fear of a greater evill, but that flowes from the very sense of our duty, and obligeth us, not to men only, but to God. He addes two reasons: First, because God hath approved that order of ruling and obeying, both of old in the Hebrew Law, and now in the Go∣spell; wherefore the publique powers are to be so esteemed by us, as constituted by God himself. For we make those things ours, which we grace with our authori∣ty.
Second, because this order serves to our good. But, one may say, to suffer in∣juries is nothing profitable. Here do some, more truly I think than appositely to the meaning of the Apostles, say, these injuries are profitable to us; because the patience shall not go without reward. To me the Apostle seemeth to have conside∣red the universal end proposed to that or∣der, which is the publique tranquillity, * 1.383, wherein also is comprehended the peace of every one. And truly, 'tis not to be doubted, but that for the most part we attain unto this good by the publique powers: for no man wisheth ill unto himself: now, the Rulers fecilitie con∣sisteth in the felicitie of his subjects. * 1.384 Let there be, whom thou mayst rule, said One. The Hebrews have a proverb: If there were no Government, one man would devour another alive. Which sense is in Chrysostom too: Unless Cities had Rulers, we should lead a life more wilde than the wilde beasts, not biting only but eating us one the other † 1.385. But if at any time Rulers are transported by too much fear, or anger, or other affections diverting them from the way that leaderh to tranquiility, that is to be accounted among accidents less frequent, and which, as Tacitus saith, are
recompensed by the intervenience of bet∣ter things. Now, Lawes content them∣selves with bearing a respect to what fal∣leth out for the most part, as Theophra∣stus said; whereto is pertinent that of Cato, No Law is perfectly commodious; * 1.386 this onely is enquired, if it be profitable to the greater part and in the main. But the things that happen more rarely, are not∣withstanding to be bound up in common rules, because although the reason of the Law in this speciall fact especially hath not place, yet the reason abides in its ge∣nerality, whereunto the specials are to be subject. For that is better than to live without rule, or that the rule be left to every ones pleasure. Seneca to the pur∣pose: better it was, that even the just * 1.387 excuse of a few should not be accepted, than that all men should attempt to make some excuse. Here also hath place that speech of Pericles * 1.388, never enough re∣membred: Thus I conceive, that the Commonwealth which is well in the ge∣neral is better for particular men, than where private estates are flourishing, and the publique is sick. For he that hath his domestique fortunes wel settled, his coun∣try being overthrown, must needs fall with it. But he whose private estate is decayed in a prosperous Commonwealth, is thereby much more easily repaired. Wherefore, when the publique may sustain losses of particular men, But particular men can∣not make amends for the publique calami∣ties,
why should we not all joyn together in maintaining the common Interest, 〈◊〉〈◊〉 doing as you do, while you are astonis•…•… at your private dammage, betraying the Commonwealth. The sense whereof is in brief express'd by * 1.389 Livy thus: The Com∣monwealth being safe, secures the private estates easily; in vain shall you keep your own, if you betray the publique † 1.390. Non among things concerning the publique, the principal no doubt is that order, which we have said, of ruling and obeying: and that cannot consist with a private licence of resisting. I desire to explain this by a noble passage in Dio Cassius: Truly I think it not becoming, that the Ruler of a City should give place to his subjects, nor is there hope of safety if they will com∣mand, whose duty is to obey. For consider, what order will be in a family if the elder be despised by the yonger; What method in a school, if the learners care not for the teachers; how can the sick recover their health, if they will not in all things be obedient to their Physicians; how can Seamen escape danger, if the Saylors will not hearken to the commands of their Masters. For by nature it is necessary and safe for men, that some should govern, and some be subject.
TO Paul let us add Peter as a fit com∣panion: his words are these; Honour * 1.391 the King: Servants be subject to your Masters with all fear, not only to the good and gentle, but also to the froward. For this is thankworthy, if a man for conscience toward God endure grief suffering wrong∣fully. For what glory is it, if when ye be buffeted for your faults, ye shall take it pa∣tiently? but if when ye do well, and suf∣fer for it, ye take it patiently: this is ac∣ceptable * 1.392 with God. And when he con∣firmes this by the example of Christ. The same sense also is expressed in Clement's Constitutions in these words: Let a ser∣vant fearing God bear a good affection to his Master, though ungodly, though un∣just. Two things are to be noted here. First, that the subjection due to masters, even to the froward, is also to be referd to Kings: for that which followes, built on the same foundation, respects no less the office of subjects than of servants. Second, the subjection requir'd of us is such as carries with it patience of inju∣ries. So is it usually said of parents:
* 1.393 A gentle parent's dear: Yet the ungentle bear.And a youth that had long frequented Zeno's school being asked, What he had learned there, answerd, To bear my Fa∣thers
anger. Justin of Lysimachus: Wit•…•… a good coutage he receiv'd disgrace fro•…•… the King, as from his father. And it 〈◊〉〈◊〉 in Livy; As the hardness of parents, so i•…•… that of our Countrey to be mollified by pa∣tience and sufferance. It is said in taci∣tus, The natures of Kings must be end•…•…∣red: and again, We must pray that we may have good Emperors, and tolerate th•…•… bad * 1.394.
FRom this Law of our Lord, the pra∣ctice † 1.395 of the antient Christians, the best interpreter of the Law, departeth not. For although very ill men often pos∣sessed the Roman Empire, nor were there wanting who under colour of relieving the commonwealth oppos'd themselves a∣gainst them, yet the Christians never ad∣joyned themselves to their enterprizes. In Clements's Constitutions we read, It is unlawfull to resist the Royal power. Ter∣tullian in his Apologetique saith: Whence are those Cassii, Nigri and Albini? Whence are they that set upon Caesar between the two laurels? whence are they that sh•…•…w their palestric art in stopping his breath? whence are they that break into the palace armed, bolder than all those * 1.396 Sigerii (so the MS. plainly, in the library of the most worthy Puteans) and bolder than the Parthenit? They were of the Romans,
unless I am deceiv'd, i. e. of such as were not Christians. That which he saith of the palestrick art pertains to the death of Commodus, wrought by the hand of a palestrite at the command of the Prefect Aelius Laetus: than which Emperour yet, scarce any was more wicked. Par∣thenius, whose fact likewise is detested by Tertullian, was he that had slain the Emperour Domitian. To the•…•…e he com∣pares Plautianus the Praetorian Prefect, who designed to kill Septimius Severus, a very sanguinary Emperour, in his palace: Against the same Severus, took armes, as on behalf of the Commonwealth, in Sy∣ria Pescennius Niger, in Gallia and Bri∣tain Clodius Albinus: But their enter∣prize also displeased the Christians, which Tertullian likewise boasteth of to Scapu∣la: We are defamed concerning the Empe∣rours Majesty: yet could the Christians never be found, either Albinians, or Ni∣grians, or Cassians. Cassians were they that followed Avidius Cassius an emi∣nent man, who having taken up arms in Syria, pretended he would restore the Commonwealth, undone by the negli∣gence of M. Antonius. Ambrose, when he thought injury was done, not to him∣self alone, but to his flock, and to Christ, by Valentinus the son of Valentinian, would not use the commotion of the people ready enough to make resistence. * 1.397 Violence, saith he, † 1.398 being offerd, I have
not learned to resist: I can grieve, I can weep, I can sigh: against armes and sol∣diers, oven Goths, my arms are my tears. For such are the muniments of Priests. In any other sort, neither ought I, nor can I resist. After: It was required of me, that I should restrain the people: I answerd, it was in me, not to raise them; in Gods hand, to quiet them. The same Am∣brose would not use the forces of Maxi∣mus against the Emperour, being both an Arrian and a persecutour of the Church. So was Julian the Apostat, * 1.399 when he plotted the Churches ruine, re∣pressed by the tears of Christians, as Na∣zianzen saith, adding. This was the on∣ly * 1.400 remedy against a persecutor. And yet almost all his Army was made up of Christians. Adde hereunto, that, as the same Nazianzen observes, that persecu∣tion of Julian, was not onely injurious to the Christians, but had brought the Commonwealth also into extreme dan∣ger. We will close up this with a saying of Augustin, where he explaines the words of Paul to the Romans: It is ne∣cessary for this life we should be subject, * 1.401 not resisting, if they (the Governors) shall please to take any thing from us.
OUr age hath brought forth men, learned indeed, but too observant of times and places, who perswaded them∣selves first (for so I believe) and then o∣thers, that the things above spoken have place among private persons, not also a∣mong inferiour Magistrates † 1.402: who (as these men thinke) have a right to resist the injuries of the Soveraign; yea they sin, unless they do resist. This is not to be admitted. For as in Logick the inter∣mediate * 1.403 species, if you respect the genus, is species; if the species below it, is genus: so these Magistrates, in regard of their in∣feriours are publique persons, but in rela∣tion to their superiours are private. For all faculty of governing, which is in Ma∣gistrates, is so subjected to the highest Power, that whatsoever they do against the will of the soveraign, is destitute of that faculty, and therefore to be accoun∣ted for a private act. For, that saying of the Philosophers hath place here also, * 1.404 There can be no order without relation un∣to somewhat which is first. Who think otherwise, to me they seem to introduce such a state of things, as the Antients feign to have been in heaven before the the Rise of Majesty, when they say the
minor Gods yeelded not to Jove. But the Order (which I have mentioned) and † 1.405 subalternation is not onely known by common sense * 1.406, but proved also by di∣vine authority. For the † 1.407 Prince of the A∣postles would have us to be subject other∣wise to the King, otherwise to the Magistrates: to the King as supere∣minent, i. e. without any exception, beside those things which are directly commanded by God, who approves pa∣tience of injury, forbids it not: to the Ma∣gistrates, as sent by the King, i. e. deri∣ving their power from him. And when Paul requires every soul to be subject to the highest powers, he included also the inferiour Magistrates. If we look back upon the Hebrew people, where so many Kings were contemners of divine and hu∣man Law, we shal never finde that the in∣feriour Magistrates, amongst whom were very many men pious and valiant, took so much upon them, as to oppose any force against the Kings, unless they had re∣ceiv'd from God, who is King of Kings, a speciall mandate. But on the contrary, what is the duty of Peers, * 1.408 Samuel shews, when in the sight of the Peers, and peo∣ple, with accustomed veneration he at∣tended Saul now ruling perversly. More∣over, the state of publique Religion al∣wayes depended on the will of the King
and Sanedrin. For, that the Magistrates and people, after the King, promised their fidelity to God, this must be understood so far as it was in the power of every one. And more, the images of false Gods, pub∣likly exstant, we never read to have been thrown down, unless by command either of the people in the free State, or of the Kings if they ruled. Howbeit, if at any time any thing was done by force against the Kings, it is related for testimony of divine providence permitting it, not for approbation of humane fact. The Au∣thors of the contrary opinion are wont to object a saying of Trajan, when he gave a sword to the Praetorion Prefect; * 1.409 Use it for me, if I govern well; if ill, against me. But we must know that Trajan, as ap∣pears by Plinio's Panegyric, was very studious to shew nothing regal, but to act a † 1.410 true Prince, subject to the judg∣ment of Senate and people, whose de∣crees the Prefect's duty was to execute even upon the Prince himself. Like to this is that we read of M. Antoninus, who would not touch the publique mo∣ney without the advice of the Senate.
THis is a greater question, whether the Law of not resisting bind us in ex∣treme and most certain danger. For even
some Laws of God, although general∣ly exprest, have a tacit exception of ex∣treme necessitie: which in the time of the Hasmoneans was defined by wise men concerning the Law of the Sabbath Whence it is a common saying, Peril 〈◊〉〈◊〉 life drives away the Sabbath: and a Je•…•… in Synesius gives this reason of neglectin•…•… the Law of the Sabbath, We were brought * 1.411 into most certain danger of our life. Whi•…•… exception is approv'd by Christ himself as also in another Law of not eating th•…•… shew-bread. And the Hebrew masters out of the old tradition, adde the same exception to the laws of forbidden meats and to some other: And rightly; Not, that God may not bind us over to cer∣tain death, if he please; but, because certain laws are of such an argument, that it is not credible they were given out of 〈◊〉〈◊〉 rigid a will. Which holds more strongly in humane laws. I deny not, but even a humane law may command some act of vertue under certain peril of death, a•…•… the law of not deserting ones * 1.412 Station but we must not rashly conclude, that was the will of the Law, maker; nor d•…•… men seem to have taken so much right o∣ver themselves and others, but so far a•…•… extreme necessity requires it. For laws are wont (and so they ought) to be made by men with sense of humane im∣becillity. Now the law of which we speak, seemes to depend upon their will, wh•…•…
first consociate themselves into civill so∣ciety, from whom thenceforth a right flowes and comes unto the Rulers. And these, if they were asked, whether their will was to impose upon all this burden, to dy rather than in any case to repell by force the force of their superiours, I know not whether they would answer, it was their will, unless perhaps with this additament; if resistance cannot be made without very great perturbation of the Commonwealth, or the destructi∣on of very many innocent persons. For, what in such a circumstance charity would commend, may be also, I doubt not, deduced into a humane Law. One may say, that rigid obligation, to dy ra∣ther than ever to repell any injury of su∣periours, proceedeth not from humane law, but from divine. But we must note, Men at first, not by divine precept, but drawn of their own accord upon expe∣rience of the infirmity of divided families to defend themselves against violence, closed together in the bond of civill so∣ciety: whence civill power hath its spring, which therefore Peter calls a hu∣mane ordinance* 1.413, though elsewhere too, it is called a Divine ordinance, because God approved this wholsome institution of man. But God, approving humane law, is supposed to approve it as humane, and in a humane manner. Barclay, the most * 1.414 stour defender of Regall Power, descen∣deth
yet so farr, as to grant the people, and an * 1.415 eminent part thereof, a right of defending themselves against immane cruelty; when yet the same Author ac∣knowledgeth * 1.416 the whole people to be sub∣ject to the King. I do easily conceive, the more value that is of which is con∣served, the more equity it is, which give us an exception against the words of of the Law: nevertheless, indistinctly to condemn either single persons, or a le•…•… part of the people, which heretofore hath used the last safeguard of necessity, so, as to have respect in the mean time to the common good, * 1.417 I scarce dare. For David, who, except a few acts, hath testimony of a life exactly conformed to the laws, * 1.418 had about him armed men, first four hundred, and then a greater number; to what purpose, but to keep off violence, if it should be offered. But withall, this is to be noted, David did not this, till after he had found, both by Jonathan's disco∣very, and by very many other most cer∣tain arguments, that Saul sought after his life; And then, neither invades he Ci∣ties, nor takes occasions of fighting, but retreats and hides himself, sometimes in the wilderness, sometimes amongst other people, and hath a religious care never to hurt his own Country. Parallel to this may seem the action of the Maccabees. For, that some defend their arms upon this title, as if Antiochus had not been
King but an Invader, I think it vain; when the Maccabees and their follow∣ers, in all the history, never call Antio∣chus by any other but the name of King: and rightly, when long before the He∣brewes had acknowledged the Macedo∣nian Power, into whose right Antiochus succeeded. As for that prohibition to set an alien over the people, that Law is to be understood of voluntary election, not of what the people was compeld to do, drawn by necessity of the times. And for that which others say, that the Macca∣bees used the right of a people, who had liberty * 1.419 to live by their own laws, it is not firm neither: for the Jews, subdued first to Nebuchodonosor by the law of war, by the same law were subject to the successors of the Chaldaeans, the Medes and Persians: all whose Empire devolved to the † 1.420 Macedonians. Hence are the Jewes call'd by Tacitus. * 1.421 The most vile part of those that serve, while the East was in the power of the Assyrians, Medes and Persians. Nor did they covenant for any thing with Alexander and his suc∣cessors, but without any condition came under their dominion, as before they had been under Darius. But if the Jews were sometimes permitted to have open exer∣cise of their Rites and Laws, this was a precarious right, arising from the favour of the Kings, not from any law or con∣dition annexed to the Government. There
is nothing therefore that can clear the Maccabees, besides extreme and most cer∣tain danger: to wit, so long as they con∣teind themselves within termes of sel•…•… defense, so, as to retire into devious pla∣ces, after David's example, to secure themselves; and not to enter into batta•…•… but when they were assaulted.
MEan while, this caution is to be ob∣served, even in such a danger the person of the King must be spared: which they that think David did, not out of any necessity of duty, but out of some higher design, are much mistaken. For David himself plainly said, No man can lay * 1.422 hands upon the King, and be innocent. Well he knew, 'twas written in the law, Thou shalt not revile the Gods (that is, the highest Judges) nor curse the Ruler of thy people. In which law the speciall men∣tion made of the eminent powers, evi∣dently shewes something speciall to be commanded. (Wherefore Optatus speak∣ing of this fact of David saith, He was hindred by a full remembrance of the di∣vine commands. † 1.423 And he puts these words into Davids mouth, I was willing to ore∣come my enemy, but that I chose rather to keep the Command of my God.) Now, for evill words that are false, it is not lawfull to cast them at a private person:
against a King therefore we must not use them, when they are true. For, as the Writer of the Problems, which bear A∣ristotles * 1.424 name, affirmeth, He that re∣proacheth the Ruler is injurious to the City * 1.425. And if the Ruler must not be of∣fended with the tongue, much less cer∣tainly with the hand: whence we also read, that David's heart smote him for violating the garment of the King; so much did he apprehend the sanctitude of his person. And not without cause: For sith the highest power cannot but ly open to the hatred † 1.426 of many, the Rulers per∣son was with a peculiar fense to be se∣cur'd. The Romans made a Constitution that the Tribunes of the common people should be inviolable. The Essenes had a saying, that Kings are to be accounted sacred * 1.427. It is in Curtius, that the na∣tions which are under Kings, reverence their Kings as Gods. And Artabanus the Persian saith: * 1.428 Amongst our many good Laws, this is the best, that the King is to be reverenced and adored, as the Image of God the Saviour of all.
TIs a greater question, whether so much as was lawfull for David, and lawfull for the Maccabees, be allowed unto Christians; whose Master so often commanding his disciples to undertake the cross, seems to require a patience more exact. Certainly, where Superiours threa∣ten Christians with death for religion sake, Christ gives them leave to fly; them I mean whom necessary office binds not to any place: beside flight he permits nothing, And Peter saith, Christ, when he suffered, left us an example to follow; Who did no sin, neither was guile found * 1.429 in his mouth: Who when he was reviled, re∣viled not again; when he sufferd, he threat∣ned not; but committed himself to him that judgeth righteously. The same Apostle bids Christians give thanks to God, and * 1.430 rejoice, if they suffer as Christians. And surely, by this patience most of all, we finde Christian religion to have prevailed and spread it self. Wherefore, in my opi∣nion, the antient Christians, who, coming fresh from the disciplin of the Apostles and Apostolical men, did more perfect∣ly both understand and obey their pre∣scriptions, are very much injur'd by them, who think the reason why they defended not themselves in most certain perill of death, was, because they wanted
not will, but strength. Imprudent, no doubt, and impudent had Tertullian been, if, before the Emperours, who could not be ignorant of the truth, he had so confidently dared to tell a ly: If we were willing (saith he) to use open hosti∣lity, should we want numbers and forces? We have fill'd your Cities, Ilands, Castles, Towns, Camps, Palace, Senate, all your places, but your Temples. And were our forces unequal to yours, we might easily make war upon you, when we are so wil∣ling to be slain, if our Religion did as well allow us to kill, as to be killed. Here also * 1.431 Cyprian followes his master, and openly proclames; Hence it is, that none of us, when he is apprehended, resisteth: nor re∣vengeth himself against your unjust vio∣lence, albeit our people is exceeding nu∣merous. Our security of the future re∣venge makes us patient. The innocent yield unto the nocent † 1.432. And Lactantius * 1.433 We put confidence in his Majesty, who can as well revenge the contempt of himself, as the labours and injuries of his servants. And therefore when we suffer such hor∣rid things, we oppose not so much as a gainsaring word, but leave vengeance to God. Nor did Augustin look upon any thing else when he saith: Let not the just man especially have any other thoughts in these matters, but that he may undertake war to whom it is lawfull, for to all it is not lawfull. And this is his: As oft as
Emperours are in errour, they make L•…•… to maintain errour against the truth, 〈◊〉〈◊〉 which laws the righteous are exami•…•… and crowned. The same elswhere: Princ•…•… are so to be borne with by the Common•…•… * 1.434 and Masters by their servants, that by the exercise of patience temporall things m•…•… be endured, and eternall things assured Which in another place he explains by the example of the antient Christians thus. The City of Christ, though as ye•…•… * 1.435 travelling on earth, and having so gr•…•… multitudes against ungodly persecuton, did not fight for temporall safety; but, to obtain eternall, refused to fight. They were bound, they were imprisoned, they were beaten, they were tormented, they were burn'd, torn in peeces, cruelly slain, and still they were multiplyed. They could not fight for salvation, unless for salvati•…•… they did contemn their safety. And Cyrill•…•… words upon that of John, concerning the sword of Peter, are of like sense, and no lesse to the purpose.
THe Thebaean Legion, as the acts do shew us, consisted if six thousand six hundred sixty six Soldiers, all Christians, Who, when Maximianus Caesar at Octo∣durum compelld his Army to sacrifise to false Gods, marched away first to Agau∣num:
and, when the Emperour had sent some thither to command them to come to sacrifise, upon their refusall, Maxi∣mianus commanded every tenth man to be slain, by his Serjeants. The com∣mand was executed easily without resi∣stence of any one. Mauritius † 1.436 the chief of that legion, from whom Agaunum was afterward call'd Vicus Mauritii, at that time spake thus to his fellow soldiers, as Eucherius Bishop of Lions hath rela∣ted: How afraid was I, lest any one by way of defense (which is easy for armed men) should attempt by violence to save those blessed men from death? For the re∣straint wherof I was preparing the example of our Christ, who by the word of his own Command put up the drawn sword of his Apostle again into the sheath: shewing, that the vertue of Christian confidence is greater than all arms; that none should oppose the mortal work with mortal hands, but faithfully accomplish his undertaken duty with a persevering religion. After this decimation, when the Emperour gave the same command to the survivors, they all answer thus: Caesar, we are indeed thy soldiers, and have taken arms for defense of the Roman Commonwealth: nor have we ever been run-awayes or traytors; nor deserved any mark of dishonour for our cow∣ardise. And willingly should we obey these your commands, unless the laws of our Christianity did forbid us the worship of
Devils, and their altars alwaye's polluted with blood. We see, it was your will, ei∣ther to pollute Christians with sacrileges, or to terrify us by slaying every tenth man. You need not make any long search after us. Know that we are all Christians. You shall have all our bodies subject to your power: but our souls look up to Christ their Lord, and you shall not lay hold on them. Then Exuperius the Ensign-bearer of the Legion, is related to have spoken to them in this manner: My right valiant fellow∣soldiers, you perceive I carry the ensign of secular war: but I provoke you not to these arms; I call not your vertue and courage forth to these wars: Another kind of fight is to be chosen by you. You cannot, by these swords, attain unto the heaven∣ly Kingdom. Afterward, he desires these words should be reported to the Empe∣rour: O Emperour, desperation, which is most valorous in dangers, hath not armed us against thee. Behold, † 1.437 we have wea∣pons in our hands, yet do we not resist: be∣cause we had rather dy, than overcome; and perish innocent, than live rebell•…•…. And again; We throw down our arms: thy officer shall finde our hands without weapons; but our heart armed with the Catholique faith. After this follows the slaughter of them not resisting: in the nar∣ration whereof, these are the words of Eucherius * 1.438, The multitude availed not to free the just from punishment: albeit the
crime is wont to go unpunisht, when the multitude is the delinquent. In the old Martyrology the same thing is related on this wise. They were promiscuously slain with swords; without contradiction: yea, their arms being laid down, they offered their throats to the persecutors, or their uncovered body; neither provoked by their own multitude, nor by the motion of arms, to endeavour to assert the cause of righte∣ousness by the sword; but, mindfull of this alone, that they confessed him, who not re∣claming was led to the slaughter, and as a lamb opened not his mouth; They also, as a flock of the Lords sheep, sufferd them∣selves to be torn in peeces, as it were by wolves running on them. † 1.439 Valens im∣piously and cruelly raged against them, who according to the holy Scripture and the tradition of the Fathers professed * 1.440 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, who, although a very great num∣ber, never defended themselves by force. Certainly, where patience is prescribed us, we see the example of Christ is oft brought in, and even now we heard it alleged by the Thebaean soldiers, as an example to be imitated by us; the exam∣ple I say of Christ, whose patience ex∣tended it self even to the Death. And he * 1.441 that so loseth his life is truly pronoun∣ced by Christ to have sav'd it.
WE have said, Resistence is not lawfull against the highest pow∣ers. Now, lest the Reader think, they offend against this rule, who indeed offend not, we must adde some advertise∣ments. First then, Princes that are un∣der the people, whether from the begin∣ning they received such power, or after∣ward it was so agreed, as at Lacedaemon, † 1.442 if they offend against the Laws, and the Commonwealth, may not only be repel∣led by force, but, if need require, pu∣nished with death: which befell Pausa∣nias King of the Lacedemonians. And, sith the most antient Kingdoms through Italy were of this kinde, it is no wonder, if, after the relation of most cruell things done by Mezentius, Virgil addes: Then all Etruria flam'd with ajustire: † 1.443 And call for the Kings bloud to quench the fire. Secondly, if a King, or any other hath abdicated his Empire, or manifestly ac∣counts it as forsaken, after that time all things are lawfull against him, as against private man. Yet is not he to be judged to desert his estate, who manageth it somewhat negligently. Thirdly, 'tis the opinion of * 1.444 Barclay, if the King alienate his Kingdome, or sub∣ject it to another, he forfeits it. I stop
For such an act, if a Kingdom be con∣veyed by election or by successory law, is null: and therefore can have no effect of right. Whence also, concerning an Usufructuary, to whom we have com∣pared such a King, it seemes to me the truer opinion of Lawyers, that, if he * 1.445 yield his right to an extraneous person, his act is nothing. And, as to that, that the usufruit reverts to the Lord of the pro∣priety, it is to be understood, in due time. But, if a King really attempt even to de∣liver up, or subject his Kingdom, I doubt not, he may be herein resisted. For, as we have distinguished afore, the Empire is different from the manner of holding it: which manner, the people may hin∣der from being changed; for that is not comprehended under the Empire. Hither you may fitly apply that of Seneca in a * 1.446 case not unlike: Though a son must obey his father in all things, yet not in that, whereby he is made to be no father. Fourthly, the same Barclay saith, a King∣dome is lost, if the King be caried with a truly hostile minde to the destruction of the whole people † 1.447, which I grant. For, the will of ruling, and the will of destroying cannot consist together. Wher∣fore, he that professeth himself an enemy of all the people, thereby abdicates the Kingdom; but this seemeth scarce possible to happen in a King, that is himself, that rules over one people. It may happen,
if he rule over more than one, that in fa∣vour of one people, he may will the ruine of another, to make Colonies there. Fiftly, if a Kingdome be committed; whether by felony against him whose Fee it is, or by a clause put in the very grant of the Em∣pire, that, if the King † 1.448 do so or so, the subjects be loosed from all bond of obe∣dience; in this case also, the King falls back into a private person. Sixtly, if a King hath one part of the supreme power, the People or Senate the other part † 1.449, a∣gainst the King invading that part which is not his, a just force may be opposed, because so far he hath no power. Which, I think, hath place, notwithstanding it be said, the power of war is in the King. For that's to be understood of forein war: when otherwise, whosoever hath part of the supreme authority, cannot but have a right to defend that part. When this comes to pass, the King may also, by the Law of war, lose his part of the Em∣pire. Seventhly, if in the conveyance of the Empire it be conditioned, that in a certain case * 1.450 resistance may be made a∣gainst the King, although it cannot be supposed, part of the Empire is thereby reteined, yet is there reteined some natu∣rall liberty, and exempted from the Re∣gall power. And, he that alienateth his right, may abate of that right by cove∣nant.
WE have considered him which hath, * 1.451 or had the right of governing. It re∣maines that we speak of the Invader of Empire, not after by long possession or by covenant he hath gotten a right, but so long as there continues the cause of pos∣sessing it unjustly. And truly, whilst he is in possession, the acts of empire which he exerciseth, may have power to oblige, not out of his right, which is none, but from this, that it is most probable, He that hath the right of governing, whether people, King or Senate, had rather the Invaders commands should prevail and be of force, than utter confusion be brought in, the Laws and judgments taken away. Cicero condemnes Sylla's Laws of cruel∣ty to the sons of the proscribed, that they could not seek for honours: Nevertheless, he thought they were to be observ'd, af∣firming (as Quintilian tells us) the state of the City so to be contained in these * 1.452 Laws, that it could not stand if they were dissolv'd. Florus of the same Sylla's acts: Lepidus went about to rescind the acts of so great a man, deservedly, if yet he could without great damage to the Common∣wealth. And a little after: It was expe∣dient for the sick and wounded Common∣wealth to take some rest at any hand, lest
the sores should be opened and bleed t•…•… much in the cure. Howbeit, in things 〈◊〉〈◊〉 so necessary, and which pertain to the establishing of the Invader in his unju•…•… possession, if without great danger obe∣dience may be denied, it must not be gi∣ven.
TO this question we frame this answer. First, if the Invador, by unjust war, and such as hath not the requisits accor∣ding to the Law of Nations, hath seised on the government; nor hath there fol∣lowed any agreement, or faith given him, but his possession is kept onely by force; in this case. the right of war seemeth to remain, and therefore it is lawfull to act against him as against an enemy, that may lawfully be slain by any, even by a private man. Against Traitors, said Ter∣tullian, * 1.453 and publick enemies, every man's a souldier. So also, against desertors of the war that run from their colours, all persons, for the common quiet, have a right indulged to them to execute publick revenge. And I am of Plutarch's * 1.454 opi∣nion, that the same is lawfull, if, before the invasion, a publick Law were extant, giving power to every one to kill him, that shall adventure to do this or that,
which falls under sight; as, that being a private man shall get a guard about him, or shall invade the Fort; that shall slay a Citizen uncondemned, or not by law∣full judgment; that shall create magistrats without just suffrages. Many such Laws were extant in the Cities of Greece, in which therefore the killing of such Ty∣rants was to be esteemed Lawfull. Such was at Athens the Law of Solon revived af∣ter the return out of the Piraeeum, against the overthrowers of the popular State, and such as had born offices after the o∣verthrow of it. As also at Rome the Va∣lerian * 1.455 Law, if any one without the peoples will should take the authority of a Magistrate: and the Consular Law after the Decemvirate, that none should cre∣ate a Magistrate without appeal; whoso∣ever had done so, it should be lawfull to kill him. Moreover, it will be lawfull to kill the Invader, by the express authori∣ty of the rightfull Governour, whether King, Senate or People: As also, of the Protectors of Children that are Kings, such as Jo•…•…ada was to Joas, when he dethroned Athalia. Unless in these cases, I cannot yield it lawfull for a private person by force to evpell or kill an Inva∣der of the highest power. The reason is, because it may be, the rightfull Gover∣nour had rather the Invader should be left in possession, than occasion given to dangerous and bloody Commotions, that
do usually follow upon the violating or slaying of those men, who have a strong faction among the people, or forein con∣federates also. Surely it is uncertain, whe∣ther a King or people be willing the State should be so endangered: and, without know•…•…ege of their w•…•…l, the force cannot be just. Favonius said: Civil war is worse than unlan full and usurped Goverment. And Cicero: † 1.456 To me any peace with our Countrey-men seemeth more profitable than Civil war. Better it had been, said Titus Quintius, the Tyrant Nabis had been let alone at Lacedemon * 1.457, when he could not otherwise be thrown down, but with the grievous ruine of the Commonwealth, likely to perish in the vindication of her liberty. To the same purpose is that of Arist•…•…hanes, A Lyon is not to be bred in a City; but if he be brought up, he must be kept. Verily, seeing it is a most weighty deliberation, whether peace or liberty be to be preferd, as Taci∣tus speaks; and, in Cicero's opinion, it is a politick question of greatest difficul∣ty, Whether, when our Country is oppres∣sed by an Usurper, all endeavour is to be used against him, although the Common∣wealth be thereby extremely endangered; Single persons ought not to arrogate un∣to themselves that judgment which be∣longs to the people in common. Nor can that saying be approv'd.
So did Sylla answer, being asked why he troubled his Country with taking arms: * 1.460 That I may free it from tyrants. Better is the advice of Plato, * 1.461 in an E∣pistle of his to Perdicca; In the Common∣wealth, contend so far as thou canst ap∣prove thy doings to thy Citizens; it is not fit to offer violence, neither to thy parent, nor to thy country. The sense whereof is extant in Salust * 1.462 too: For to over-rule thy country or thy parents, although thou art able, and canst reform what is amiss, yet is it uncivill; especially, seeing all changes in affairs of state portend slaugh∣ter, flight, and other hostilities. Thomas * 1.463 saith, The destruction, though of a tyran∣nical Government, is sometimes sediti∣ous † 1.464. The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side: for the sacred Scripture plainly witnesseth, He was raised by God himself, and sent as an Avenger, to wit, by special command. And besides, it is not manifest, that this King of Moab had not some right of Government con∣ditionall. Against other Kings also God
executed his judgments by what hand he pleased, as by Jehu upon Joram. Lastly, * 1.465 it is to be noted, in a controverted case, a private man by no means ought to take upon himself to judge, but follow the possession. So did Christ command tribute to be paid to Caesar, because the Money * 1.466 bare his Image; that is, because he was in possession of the Empire.
AS in other things, so in voluntary a∣ctions there are wont to be three kinds of efficient causes, principal, adjuvant, and instrumental. In war, the principal is he, whose work is done; in private, a private person; in publick, the publick power, especially the highest. Whether, for those that stirr not themselves, war may be raised by another, we shall see elsewhere. Mean while, this we take for certain, naturally every one may vindi∣cate his own right. Therefore were our hands given us. But, to profit another in * 1.467 what we can, is not only lawfull but commendable. The writers of Offices tru∣ly say, Nothing is more serviceable to man, than another man. Now, there are divers bonds between men, which engage them to mutual aide. For kinsmen as∣semble to bring help, and neighbors are calld upon, and fellow-citizens * 1.468. Aristo∣tle said * 1.469, It behoveth every one, either to
take arms for himself, if he hath received injury, or for his kindred, or for his be∣nefactors, * 1.470 or to help his fellows, if they be wronged. And Solon taught, that the Commonwealths would be happy, where∣in every one would think anothers inju∣ries to be his † 1.471. But, suppose other obli∣gations be wanting, the communion of humane nature is sufficient. No man is unconcerned in that which is humane.
* 1.472 It is a saying of Democritus: Our duty is, to defend the opprest with in∣jury, and not ne∣glect them: for that is just and good. Which is thus explained by Lactan∣tius: * 1.473 God, who hath not given wisedom to other living creatures, hath secured them by natural muniments from assault and peril. But to man, because he formed him naked and frail, that he might ra∣ther furnish him with wisedom, he hath gi∣ven, beside other things, this pious affection, whereby one is inclined to defend, love, cherish another, and afford mutual aid against all dangers. When we speak of Instruments, we do not here understand * 1.474 arms, and such like things, but those per∣sons, who act so by their own will, that
their will depends upon another will. * 1.475 Such an instrument is the son to the fa∣ther, being naturally a part of him: such also is a servant, as it were a part legal∣ly. Democritus: Use servants as parts of the body, some for one thing, some for ano∣ther. Now, as a servant is in the fami∣ly, so is a subject in the Commonwealth; and therefore an instrument of the Ruler. And, no doubt, all subjects naturally may be used for war, but some are ex∣empted by special Law: as of old ser∣vants * 1.476 at Rome, now in most places Clerks † 1.477: which Law yet, as all of that kind, is to be understood with exception of extreme necessity. And so much be spoken generally concerning Adjutors and subjects: the specials shall be con∣sidered in their proper places.
the other, and both from the Beginnings * 1.480 of war, such as the Stagg in the war of Turnus and Aeneas. But although the difference 'twixt these is manifest, yet the words are wont to be confounded. For, the causes which we call justifick, * 1.481 Li•…•… in the Rhodians speech hath also called Beginnings: * 1.482 Certainly ye are the Ro∣mans, who pretend that your wars are therefore prosperous, because they are just; nor do ye so much glory in the event of them, that you overcome, as in the be∣ginnings, that you undertake them m•…•… without cause. * 1.483 Those justifick causes properly belong to our argument: where∣to is pertinent that of Coriolanus in Ha∣licarnass•…•…nsis: I suppose, it ought to be your first care, that you take a pious and just cause of war † 1.484. And this of Demo∣sthenes; As in houses, ships, and other buildings, the lowest parts ought to be most firm: so in actions, the causes and foundations * 1.485 must be true and •…•…ust. To the same purpose is that of Dio Cassius; † 1.486 We ought to have greatest regard of ju∣stice; if this be preseut, the war is hope∣full; if not, there is nothing certain to any one, though he have successe at first according to his minde. And that of Ci∣cero * 1.487;
Those wars are unjust, which are undertaken without cause: who elsewhere reprehends Crassus for passing o'r Eu∣phrates, when there was no † 1.488 cause of war. Which is no less true of publique, than of private wars. Hence is that com∣plaint of * Seneca: Do we restrain homi∣cides and single slaughters? Why doe we not restrain wars, and that glorious wic∣kedness of slaughtering Nations? Ava∣rice and cruelty know no bounds. By the Decrees of Senate and people outrages are done, and things piivately forbidden are † 1.489 publiquely commanded. Wars, I grant, undertaken by publick authority, have some effects of Law, as also Sentences: of which here after: but they are not there∣fore the less blamable, if there be no cause. So that Alexander, if without cause he warred upon the Persians and other nations, is, by the Scythians in Curtius, and by Seneca too, deservedly call'd a Robber † 1.490, by Lucan a Spoyler, and by the Indian wisemen unjust * 1.491, and by a certain pirate was drawn into the society of his crime. And likewise Justin relates, that two Kings of Thrace were spoyled of their Kingdom by his Father Philip, by the fraud and wickedness of a Robber. That of Augustin * 1.492 is to the
same purpose, Take away Justice, and what are Kingdomes but great Robberies? To such agrees that of Lanctantius: De∣ceived vith the shew of vain glory, they co∣lour their wickedness with the name of virtue † 1.493. Just cause of taking Arms can be no other, than injury. The iniquity of the adverse party brings in just wars, saith the same Augustin; where by iniquity * 1.494. he means injury * 1.495. So in the form of words used by the Roman He∣rald; I call you to witness, that people is * 1.496 unjust, and doth not performe what is right. * 1.497
THere are, according to most Authors, these three just causes of wars, De∣fense, Recovery, Revenge † 1.498. In which enumeration, unless the word Recovery be taken more largely, is omitted the prosecution of that which is due to us: which Plato * 1.499 omitted not, when he said, Wars are waged, not onely if one be opprest by force, or robbed, but also if one by deceived. With whom agrees that of Seneca * 1.500, It is a most equal word, and conformable to the Law of Nations, Render what thou owest. And in the He∣rald's formula it was: They have not gi∣ven, nor paid, nor done the things they should. And in Salust, By the law of Na∣tions * 1.501 I demand those things. Augustin,
when he said, Just wars * 1.502 are those, that * 1.503 revenge insuries, tooke the word revenge more generally for to take away: as the following words do shew, wherein is not an enumeration of parts, but an addition of examples: So is a nation or common∣wealth to be opposed, which hath either neglected to avenge what was done wic∣kedly by their men, or to render what was injuriously taken. Upon this naturall knowledge the Indian King, as Diodorus relates, accus'd Semiramis, that she be∣gan a war, having received no injury. And so do the Romans † 1.504 require of the Senones, not to fight against them, that had done them no wrong. Aristotle saith: (Men war upon such as have pro∣voked them by injury: and * 1.505 Curtius of certain Scythians, They were manifestly the most just of all the Barbarians: they took not armes, unless they were provoked † 1.506.
THe first cause of just war is Injury not yet done, but offer'd either against Bo∣dy or Goods. If the Body be assaulted by present force, with perill of life, not
otherwise avoidable * 1.507, in this case war is lawfull, even with the slaying of him that brings the danger; as we have said afore, when by this instance, as mo•…•… approved, we shewed that some private war may be just. Tis to be noted, this right of defense, by it self and primarily, springs from hence, that nature com∣mends every one unto himself, not from the injustice or sin of the other, from whom the danger is * 1.508. Wherefore although he be without fault, as one that war∣reth faithfully, or thinketh me other than I am, or is beside himself, or affrighted, as to some hath happened, hereby is not taken away the right of self-defense: it sufficeth, that I am not bound to suffer what he offereth, no more than if ano∣ther mans beast did threaten me with the danger. Whether also innocent persons, who being interposed hinder my defense or flight, without which death cannot be escaped, may be slain, is question'd. Some, even Divines, there are, that think it lawfull. And surely, if we respect na∣ture * 1.509 alone, with her the respect of socie∣ty is much less, than the care of proper safety. But the law of Charity, especially the Evangelicall, which equals another to our selves, plainly permits it not. That saying of Thomas, if it be rightly * 1.510 taken, is true: In a true defense a man is not slain on purpose: not that it is not lawfull sometimes, if there be no other
meanes of safety, to do that on purpose whence the death of the assailant wil fol∣low, but that in this case that death is not chosen as a thing primarily intended, as in judiciall punishment, but as the only thing remaining at that time; when he that is assaulted, even at that time, ought to desire rather to do somewhat whereby the other may be terrified or weakened, than destroyed. Present * 1.511 dan∣ger is here requir'd, and as it were in a point. I confess, if the assailant draw his sword, and so that it appears he doth it with a mind to kill, it is lawfull to pre∣vent him: For in morals, as in naturals, a point is not found without some lati∣tude. Nevertheless are they deceived and do deceive, who admit of any fear what∣soever, as a just occasion of such preven∣ting. For it is well observed by † 1.512 Cicero, Very many injuries proceed from fear, when he that thinks to hurt another feareth, unless he do it, himself shall re∣ceive hurt. Clearchus in Xenophon: Ma∣ny have I known, drawn either by calum∣ny or supicion, whilst they fear others, and had rather prevent than suffer, to have done much evill to those, that attempted not, nor so much as thovght any such thing against them. Cato in his Oration for the Rhodians: What, saith he, shall we first execute, that which we say they desig∣ned? Cicero * 1.513 again: Who ever made this
Statute, or to whom * 1.514 may it be granted without extreme hazard of all, that one might lawfully kill him first, of whom he saith we was afraid, left himself should afterward be killed? Pertinent is that of * 1.515 Thucydides: The future is yet uncertain: nor ought any one therefore to make a quarrell present and certain. The same Au∣thor, where he declareth the hurt of Se∣dition among the Grecian Cities, sets down this for one fault: He was praised, that first did, what another was about to commit † 1.516. To such agrees that saying of Vibius Crispus cited by Quintilian, * 1.517 Who permitted thee to be so fearfull? And Li∣via in Dio * 1.518 saith, They escape not in∣famy, that by way of prevention do the evill which they fear. Now, if any one offer not present force, but be found to have conspired or lyen in wait, if to pre∣pare poyson, if to plot a false accusation, to suborn witnesses, to corrupt judgment, such a one, I say, cannot be justly slain: if either the danger may be otherwise a∣voided; or it be not certain enough, it cannot be otherwise avoided. For, for the most part, the delay of time interpo∣sed affords many remedies, and many ac∣cidents for our rescue; according to the Proverb, † 1.519 Between the cup and the lip. Yet there are not wanting both Divines and Lawyers that extend their indulgence farther. But the other also, which is the better and safer way, wanteth not the con∣sent of Authors.
WHat shall we say of the danger of mutilation, and loss of some part of the body? Certainly, the loss of a mem∣ber, especially one very needfull, being very grievous, and as it were equipara∣ble to life; besides, it being hard to know, whether it draw not after it perill of death; if there be no other way to come off, I may suppose the author of such a perill forefeits his own life, and may be justly slain by the defendant. In defense of Chastity, it can scarce be doub∣ted but the same is lawfull: when both common estimation, and the divine law too, equals chastity to life † 1.520 Therefore Paulus the Lawyer said such a defense is right. We have an example in Cicero * 1.521 and Quintilian, of a Tribune of Marius slaine by a Soldier. Yea, and women have often slain the in vaders of their mo∣desty, as histories relate. Chariclea in He∣liodorus calls such an act, a just revenge on behalf of injur'd chastity.
WHat we have said afore, although it be lawfull to kill him that at∣tempts to kill, yet he doth more com∣mendably who had rather be killed than kill; some do grant, so, that they except a person profitable to many: But, to me it seemeth unsafe, to impose this Law con∣trary to Patience upon all, in whose life others are concernd. Wherefore I may conceive it is to be restrained to them whose office 'tis to keep off force from o∣thers; such as are the companions in a journey undertaken on those termes, and publick Rulers, to whom that of Lucan may be applyed:
* 1.522 Twas cruelty to yeeld himself to death, So many thousands living by his breath.ON the contrary it may happen, that, because the Invader's life is profitable to many, he cannot be slain without sin: nor that onely by force of Divine Law, whether old or new (of which afore, when we shewed the Kings person to be sacred) but by the very Law of Nature. For the Right of nature, as it signifies a Law, doth not onely respect those things which are dictated by that Justice that is calld Expletrix * 1.523, but con∣teineth in it self the acts of other vertues also, as of Temperance, Fortitude, Pru∣dence; as being, in certain circumstances, not onely honest, but due. Now, to that which we have spoken Charity obligeth us. Nor doth Vasquez remove me from * 1.524 this opinion, when he saith, a Prince who assaulteth an innocent person, ceaseth to be a Prince in that very act: than which, scarce any thing could be spoken, either less truly, or more dangerously. For, as dominions, so also Empires are not lost by delinquency, unless the Law ordain it. But, no where is found a Law ordaining this concerning Empires, that they should be lost by an offence against a private man; nor will ever such a Law be found, as I believe; for it would bring
in very great confusion of things. As to that foundation which Vasquez lays for this and many other Conclusions, That al Empires regard the utility of those that obey, not of those that governe; grant it were universally true, it would not serve the turne: for the thing doth not pre∣sently fail, whose utility in some part faileth. And whereas he adds, that the safety of the Commonwealth is desired by every one for his own sake, and there∣fore every one ought to prefer his own safety even before the whole; this doth not sufficiently cohere. Tis true indeed, for our own sake we would have the Commonwealth be safe: but not onely for our own sake; others are: also to be regarded. For, it is a false opinion, and rejected by the sounder Philosophers, to think that Friendship is born of indigence alone † 1.525, sith of our own accord and by nature we are carryed to it. Now, that I should prefer the good of a great many before my own proper good, Charity ad∣viseth often, sometimes commandeth. Here is pertinent that of Seneca * 1.526: Princes and Kings, and whosoever by any other name are Tutors of the publick State, no wonder They are beloved, even above all private Relations. For, if to men of sound judgment publick things are dearer than private, it followes, that he be dearer al∣so, on whom the publick affairs depend. Ambrose * 1.527: Every one thinks it better to
keep off destruction from his Country, than * 1.528 danger from himself. The foresaid Sene∣ca•…•…: Calistratus and Rutilius, the one at * 1.529 Athens, the other at Rome, would not be restored to their home, at peril of the Com∣monwealth: because it was better these two should endure one private loss, than all fuffer a common evill.
IF one be in danger to receive a blow on the cheek, or the like, * 1.530 some are of opinion, he also hath a right to defend it by the slaughter of his enemy. I dis∣sent not, if we respect onely expletory justice. For, although death and a blow are unequall, yet he which prepares to do me an injury, thereby gives me a right, i. e. a certain morall faculty † 1.531 a∣gainst himself in infinitum, in so much as
otherwise I cannot keep off that evill from me. Charity also, by it self, seems not to bind us here, in favour of the of∣fender. But the Evangelicall Law hath clearly made such a deed unlawfull. For, Christ commands a blow to be received rather than any hurt be done the adver∣sary; how much more forbids he him to be slain for to avoid a blow? By which example we are admonished to beware of that saying of Covarruvias, Humane * 1.532 understanding, not ignorant of naturall right, allows not any thing to be permit∣ted by naturall reason, which very thing is not also permitted by God, who is Na∣ture it self. For, God who is the Author of Nature, so, that he can also work freely above nature, hath a right of pre∣scribing us Laws even of those things, which by their own nature are free and indefinite: and much more, that a thing may be due, which is by nature honest, though not due. But it is strange, seeing the will of God appears so manifestly in the Gospel, that there are found Divines, and those Christian Divines, who do not * 1.533 only think slaughter to be rightly admit∣ted, that a blow may be avoided; but al∣so after a blow received, if he that gave it fly; for a reparation of honour, as they say. Which to me seemeth very contra∣ry to Reason and Religion. For, Honour is an opinion of excellency. But, he that beareth such an injury, shewes himself
excellently patient: and therefore hath encrease of honour rather than diminu∣tion. Nor is it materiall, if some men of a corrupt judgment traduce this vertue with names made for disgrace: for those perverse judgments neither change the thing, nor the estimation of it. Neither did the antient Christians onely see this, but the Philosophers too, who said, It is a token of a weak spirit not to be able to bear contumely, as we have shewed elsewhere. Hence also it is apparent, how unsound that is, which very many Au∣thors * 1.534 say, That Defense with slaughter is lawfull, to wit, by divine Law (for I contend not about the right of nature:) although one may fly without perill; be∣cause flight forsooth is dishonourable, es∣pecially for a Gentleman. But, here is indeed no dishonour; onely a certain false opinion of dishonour, to be despi∣sed by all the Followers of vertue and wisedome. Wherein, I rejoice that I have, among the Lawyers, Carolus Molinaeus * 1.535 of the same mind with me. What I have said of a blow and of flight, I desire should be understood of other things by which true honour and existimation is not lessened. And what if one should re∣port that of us, which being believed a∣mong good men would touch our Name? He also may be kili'd, say some † 1.536: very falsly, and against the Law, even of na∣ture too. For that is no fit way to defend our Reputation.
COme we now to the injuries where∣by our goods are invaded. If we respect expletory of Justice, I will not de∣ny, but for the conservation of our goods, the Invader, if need be, may be slain: For, the inequality between these things and life, is made up by favour to the in∣nocent, and by hatred to the injurious. Whence it follows, if we regard onely that right, that a Thief running away with stoln goods, if they cannot other∣wise be recover'd, may be overtaken with a Gun, or other weapon. Demosthe•…•…es * 1.537 said: It is very hard and unjust, and contrary both to the written Laws, and the common rules amongst men, not to be sufferd to use force against him, who in hostile manner hath taken away my Goods. Nor doth Charity hinder by way of pre∣cept, the Law divine and humane set a∣side, unless the thing be of very small va∣lue, and therefore contemptible: which exception some do rightly adde.
LEt us see what is the meaning of the Hebrew Law, where with agrees also
that old Law of Solon, which Demo∣sthenes * 1.538 mentioneth, and the Law of the XII. Tables * 1.539 taken thence, and Plato's decree in the ninth of his Laws. For all those Laws meet in this, that they distinguish a Theif by night from a Theif by day. About the reason of the Law, there is the question. Some † 1.540 think this is it, that by night he cannot be dis∣cerned who comes, whether he be a Thief or a Murderer: and therefore may be killed as a Murderer. Others * 1.541 con∣ceive the difference lyes here, that in the night, because the Theif is unknown, there is less possibility to recover the Goods. To me the Law-giver seems to have properly respected, neither this, nor that; but to have meant thus rather, that no man, for Goods, ought directly to be slain: (which would be done, if, for ex∣example, I should with a weapon knock him down as he runs away, that after he is slain I might recover my Goods:) but if my self be brought into danger of life, then it is lawful for me to avert the danger, even with the peril of another mans life. Nor is it against me, that I brought my self into that hazard, whilst I desire to keep or to recover my Goods, or to take the Theif: for herein no blame can be laid on me, who am about a law∣ful act, and do no injury to any one, but use my own right. The difference then 'twixt a Theif by day and by night lyes
here, that by night there is scarce at possibility of calling witnesses: and the•…•…∣fore if the Theif be found slain, more ea∣sy credit is given to him, who saith hee was necessitated in defense of his own life to kill the Theif, being armed with some weapon, wherewith he might do hurt. For, that is required in the He∣brew Law, speaking of a Theif found * 1.542 breaking up, as some translate; others perhaps better, * 1.543 with an instrument to break up, as the word is rendred elswhere by the most learned of the Hebrews. To this interpretation we are led by the Law of the XII. Tables, which fo•…•…bids a Theif by day to be slain, this exception added, unless he defend himself with a weapon. Therefore, against a Theif by night it is presumed, that with a weapon he defended himself. And, by a weapon is understood a sword, a club, a stone, as * 1.544 Caius noteth upon this very Law. B•…•…t Ulpian hath declared, that what is said of the Theif by night, If one kil him he shal go unpunished, is to be conceived to have place, if he could not spare his life without peril of his own, to wit, in saving of his goods. There is then, as I have said, a presumption on his side who hath slain a * 1.545 theif by night: but if haply witnesses were present, by whom it is evident, the slayer of the theif was not brought into danger of his life, then will that presumption cease, and so the slayer will be guilty of
Homicide. Add, that as well by day as by night the Law of the XII. Tables re∣quir'd, that he that found the theif should testify so much by an out-cry (as we learn * 1.546 out of Caius) to the end, if it might be, the officers or neighbours might run thi∣ther to bring help, and to bear witness. Now because such a concourse is more easily made by day than by night, (as Ulpian notes upon the forecited place of Demosthenes) therefore is more easy cre∣dit given to him, that affirms, he was in danger in the night time. In like manner, the Hebrew Law allowes a maid credit concerning a rape in the field † 1.547, and not in the town, because here she might and ought to have cryed out, and called aid. Moreover, although in other respects there were no difference, yet this is con∣siderable, that the things that happen in the night are more obscure, and cannot be so well known what and how great they are; and therefore are more terrible. The Law therefore, both Hebrew and Roman, gave in precept to the people, that which Charity perswades, that they kill no man for this reason onely because he stealeth goods, but in case he that de∣sires to save them, comes himself into danger. Moses Maimonides hath noted, that the killing of another is not permit∣ted to any man on other terms, than to preserve that which is irreparable, as life and Chastity.
ANd what shall we say now of the Evangelicall Law: that the same is permitted by it, which is permitted by the Law of Moses; or that, as in other things it is more perfect than the Law of Moses, so here also it requireth of us more? I doubt not, but it requireth more. For, if Christ commandeth to lose a coat or cloak, and Paul would have us suffer damage rather than go to law, which is a contention without bloud: how much more would he, that even things of grea∣ter moment be lost, rather than we should kill a man, the image of God, and of the same flesh and bloud with us? Wher∣fore if our things may be saved, so that there seem not to be any danger of ma∣king slaughter, well; otherwise, we must suffer losse, unless haply it be such a thing, upon which our life and of our family depends, and which cannot be recoverd in judgment, haply because the Theif is unknown, and there is some hope to car∣ry the matter without slaughter. And al∣though almost all, as well Lawyers as Divines, do now teach, that a man may * 1.548 be rightly slain by us, in defense of our goods, even beyond those bounds, where∣in * 1.549 the Law of Moses and the Roman
permit; as, if a thief having taken the thing fly; yet do not we doubt, but that which we have set down, was the judgment of the antient Christians: nor did Austin doubt, whose words are these, How are * 1.550 they free from sin before God, who, for these things which are contemptible, are pollu∣ted with human blood? No wonder if in this matter, as in many other, Discipline became looser † 1.551 with the time, and by degrees the Interpretation of the Evan∣gelical Law began to be accommodated to the manners of the Age. Of old, the form of the primitive Institution was wont to be retained among the Clergy; at length, to these also censure was remitted upon the same ground.
AQuestion is here propos'd by some, Whether the Law, at least the Ci∣vil, as having right of life and death, in what case it permitteth a thief to be killed by a private person, doth also exempt the person from all fault. I conceive that is not to be granted: For first, the Law hath not right of death over all the Citi∣zens
upon every transgression, but upon a transgression so grievous that it deferr•…•… death. And it is a very probable opinio•…•… of Scotus, that 'tis not just to condemn any one to death, unless it be for those transgressions, which were punished wi•…•… death † 1.552 by the Law given by Moses; th•…•…s onely added; or which are equal to those in a right estimation. And indeed, know∣ledge of divine will, which alone quieti the mind, seems not possible to be had elswhere in this business, but out of that law; which surely appointeth not pain of death for a thief. Moreover also, the Law neither ought, nor is wont to give a right, privately to kill, even those that have deserved death, except in crimes very hainous: otherwise, in vain were the Authority of Courts of judgment or∣dained. Wherefore, if at any time the law saith, a thief may be killd without danger of punishment, it is to be sup∣posed to take away the penalty, not to grant a right.
IT appears by what we have said, that two ways it may come to pass, that a single combat may be undertaken by pri∣vate persons without sin. First, if the In∣vader grant the other license to fight, and and will kill him unless he will fight: Se∣condly,
if a King or Magistrat oppose two, that have both deserved death, one a∣gainst the other: in which case, it will be lawful for them to lay hold on some hope of life; but he that appoints the Duel will seem to have not so well done his duty, sith it were better, if the punish∣ment of one seem to be sufficient, to choose by Lot the party that should dy.
WHat hath been said by us hither∣to concerning the right of defen∣ding ones self and his goods, perte•…•…eth most to privat War; yet so, that it may be applyed to publick * 1.553, regard being had to the diversity. For, in private war the right is as it were momentaneous, and ceaseth, so soon as the matter admits of an access unto the Judge: but publick, because it ariseth not, but where Courts of Justice either are not, or not exerci∣sed, hath a continued tract, and is per∣petually cherished by addition of new damages and injuries. Farther, in private war mere defence, for the most part, is considered: but publick powers, toge∣ther with defense, have also a right of re∣venging. Whence it is, that they may lawfully prevent force, that is not pre∣sent, but seems impending afar off; not directly, (that we have shewed above to be injust,) but indirectly, by revenging a
wrong begun already, but not consum∣mate: Of which elswhere.
THat is in no wise to be allowed, which some have deliver'd, that by the Law of Nations, arms may be right∣ly taken to abate a growing power, which being encreased might be able to do hurt. I confess, in consultation about war this is wont also to come in, not under the respect of just, but of profitable: that if the war be just upon some other ground, upon this it may be judged prudent∣ly undertaken. Nor do the Authors cited * 1.554 here say any more. But, that a possibili∣ty of suffering force should give a right of offring force, this is far from all equity. So is the life of man, that full security is never in our hand. Against uncertain fears, we must guard our selves by me∣ditation of divine providence, and by harmless caution, not by doing violence to our neighbours.
only so much revenge, as they have received injury. For, that fear of an un∣certain thing cannot give a right to use force: whence, neither hath a person ac∣cused of a crime, any right to resist by force the publick officers willing to apprehend him, for fear lest he may be punisht more than he deserves. But, he that hath offen∣ded another, ought first to offer the offen∣ded party satisfaction, according to the arbitration of an upright man: and then afterward his arms will be lawfull. So Ezechias, when he had not kept the * 1.557 league, which his Ancestors had made with the King of Assyria, being set upon by a war, confesseth the fault, and sub∣mits himself to a mulct at the Kings plea∣sure. Having done that, and being after that again provoked by war, encouraged by a good conscience he withstood the enemies force, and his cause was sup∣ported by the favour of God. Pontius Samnis, after restitution made to the Ro∣mans, and the Author of the breach yeel∣ded up; we have, saith he, expiated our fault, and pacified the wrath of heaven, that was against us for our violation of the league. I know full well, what Gods soever were pleasd we should be subdued to a necessity of restitution, the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach. A little after: * 1.558 What more do I owe to thee, O Roman! What to the league, what to
the Gods the Judges of the league? Whom shall I bring unto thee to be judge of thy anger, and of my punishment? I refuse to people, nor private man. So, when the Thebans had offerd all right to the Lace∣demonians, and they required more, the good cause passed over from these to them, saith * 1.559 Aristides † 1.560.
THere follows among the Causes of war, Injury done, and first against that which is ours. A thing is ours either by a common, or by a proper right. For the better understanding whereof we must know the Rise and beginning of propriety, which the Lawyers call domi∣nion. God bestowed on mankind in ge∣neral * 1.562 a right over the things of this infe∣riour nature presently after the creation, and again upon the reparation of the world after the floud. All things, as Justin * 1.563 speaks, were undivided & common * 1.564 to all, as if all had one patrimony. Hence it was, that presently every man might take un∣to his uses what he pleased, and spend what might be spent. Which use of the universal right was then instead of pro∣priety. For, what any one had so taken,
another could not, without injury, take away from him. This may be understood by that similitude which is in Cicero, A theater is common * 1.565, yet the place posses∣sed * 1.566 by any one, may be rightly call'd his own. Nor was it impossible for that state to have continued, if either men had per∣sisted in a certain great simplicity, or had liv'd together in a certain mutual excellent charity. One of these, to wit, Commu∣nion by reason of an exceeding simplici∣ty † 1.567, may be ob∣served in some peo∣ple of America; who, through many Ages, without any incommodity, have persisted in that cu∣stome: The other, to wit, communion of Charity, the Es∣sens * 1.568 practised of old, and then the Chri∣stians, who were first at Hierusalem, and now also not a few that lead an ascetick life. The simplicity, wherein the first pa∣rents † 1.569 of mandkind were created, was demonstrated by their nakedness. There
was in them rather an ignorance of vice, than the knowledge of vertue, as Trogus * 1.570 saith of the Scythians. The most antient of mortals, saith Tacitus, lived without a∣ny evill lust * 1.571, without dishonesty and wit∣kedness, and so without punishment and coercion. And in Macrobius * 1.572, First, there was amongst men simplicity, igno∣rant of evil, and as yet void of craft. This simplicity seemes to be called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 † 1.573 by the Hebrew wise man, by the Apostle Paul 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which he opposeth 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 to craf∣tiness. Their only busines was the worship of God, whereof the Symbole was the tree of life * 1.574, as the antient Hebrews do ex∣pound, and the Apocalyps assenteth † 1.575. And they lived easily of those things which the earth of her own accord brought forth without labour * 1.576. But in this simple and innocent way of life Men persisted not, but applyed their minds to various arts, whereof the Symbole was the tree of the knowledge of good and evill † 1.577, that is, of those things which may be used
both well and ill * 1.578 In regard of this Solomon * 1.579 saith, God created man right, that is, simple, but they have found out many inventions † 1.580 Dion. Prusaeensis, in his 6. Oration; To the posterity of the first men, their craf•…•…iness and various * 1.581 inven∣tions were not very conducible: for they used their wit, not so much for valour and justice, as for pleasure, The most antient Arts, Agriculture and Pasture, appeared in the first Brothers; not without some di∣stribution of estates; From the diversity of their courses arose emulation, and then slaughter: and at length, when the good were infected by the conversation of the bad, a gigantick * 1.582 kind of life, that is, violent, such as theirs whom the Greeks call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The world being washed by the floud, in stead of that fierce life, suc∣ceeded the desire of pleasure † 1.583; whereun∣to wine was subservient; and thence arose unlawfull loves * 1.584. But concord was chief∣ly broken by that more generous vice, Ambition; whose sign was the Tower of Babel: after which, men parted asunder, and severally possessed severall parts of the earth. Yet afterward also, there re∣mained among Neighbours a Communi∣on, not of cattell, but of pastures. Be∣cause, in the small number of men, so great was the latitude of the Land, that without any incommodity it might suf∣fice to the uses of many † 1.585: untill, the number, as of men, so of cattell, being
encreased, Lands every where began to be divided, not among nations as before * 1.586 but among families too. But Wells, * 1.587 a thing in a thirsty Country very necessary, & not sufficing many, every one made his own by seisure. These are the things, we are taught out of sacred history, agreeing well with what the Philosophers and Poets have said of the first state of things common, and the distribution of things which followed: whose testimonies are produced by us in another * 1.588 book. Hence we learn, what was the cause, for which men departed from the primitive commu∣nion of things, first of movables, and then of immovables also: to wit, because when, not content to feed upon that which grew of it self, to dwell in caves, to go naked, or clad with rindes of trees, or skins of beasts † 1.589, they had chosen a more exqui∣site kind of life, there was need of indu∣stry, which every one should use in every matter. And the reason, why fruits were not brought together for common use, was, because of the distance of places, whereby men were separated; and more∣over, the defect of Justice and love; whereby it came to pass, that neither in labour, nor in spending of the fruits, was observed due equality. Withall we learn, how things went into propriety: not on∣ly by act of the mind (for they could not know the thoughts of one another, what every one would have to be his own, that
they might abstain from it, and many might desire the same thing:) but by a certain covenant, either express, as by division; or tacit, as by occupation * 1.590. For so soon as communion did not please them, and division was not made, it ought to be supposed an agreement a∣mongst all, that every one should have proper to himself, what he seised on † 1.591. It is granted, saith Cicero, that every one may prefer himself before another, in get∣ting things usefull for his life, nature be∣ing not repugnant hereunto * 1.592. To which is to be added that of Quintilian * 1.593: On this condition, that what is come into a mans possession is his own, certainly what∣soever is possessed by right, is taken away by wrong. And the antients, when they called Ceres * 1.594 Legiferam, and her rites Thesmophoria, signified this, that by the division of lands came up the original of a certain new right † 1.595.
UPon these premises we say, that the Sea taken either in regard of the whole, or in regard of the principal parts, cannot go into proper right. Which, because some do grant it, of pri∣vate persons, not of dations, we prove, first by moral reason. For, the cause, for which men departed from communion, here ceaseth, the Sea being so great, that it can suffice all nations for every use, for watering, for fishing, for sailing. The same were to be spoken of the aire, if any use might be made thereof, to which the use of the earth were not necessary, as it is to Hawking * 1.596: whence it receiveth law from him, who hath command over the Land. In the same manner we judge of the 〈◊〉〈◊〉, where is nothing that can ad∣mit of culture, and the onely use of fetch∣ing sand thence can never be exhausted. There is also a natural reason, which for∣bids the Sea considered as we have said, to become proper: because occupation pro∣ceeds not, but in a thing * 1.597 terminated: and liquid things, because they have no * 1.598 bounds of their own, cannot be occu∣pied, but as they are containd in some o∣ther thing: as lakes and ponds, and rivers, because they are contain'd with banks.
Now the Sea is not contained by the earth, being equal to the earth or greater * 1.599; whence the antients say, the earth is con∣tained by the Sea † 1.600. Nor may we feign a division: for when first the earth was di∣vided, the Sea, most part, was unknown: and so no way can be imagined for nati∣ons so far distant to agree upon the divi∣sion. Wherefore the things which were common to all, and in the first division were not divided, they do not now pass into proper right by division, but by oc∣cupation; nor are they divided, unless after they have begun to be proper.
LEt us now come to things which may be made proper, but are not yet made so. Such are many incult places † 1.601, Ilands in the Sea * 1.602, wild beasts, fishes, birds. But two things are to be noted, First, there is a twofold occupation, one by the whole, another by the parts: the former usually by the people, or by their Ruler: the other afterward by several persons; yet rather by assignation, than free occupati∣tion. But if any thing, seised on in gene∣ral, be not divided among several Lords,
it is not therefore to be esteemed voi•…•… For it remains in the dominion of the f•…•… occupator, to wit, the people or K•…•… Such are wont to be rivers, lakes, pond•…•… woods, wild mountains. Next, concern∣ning * 1.603 wild beasts, fishes, birds, it is to be noted, that he who hath command over the lands and waters, may by his Law hinder others from catching and acqui∣ring the beasts, fishes, and birds: and by that Law are foreiners also bound. The * 1.604 Reason is, because to the goverment of a people it is morally necessary, that they who mingle with them but for a ti•…•…e (which is done by entring the territory) render themselves conformable to the In∣stitution of that people. Nor is that a∣gainst us, that we read often in the Ro∣man Law, saying, by the Law of nature, or nations, it is free to hunt and take such creatures. For, this is true, so long as no Civil Law intercedes; (as the Ro∣man Law left many things in that primi∣tive state, concerning which things other nations made other constitutions) But when the Civil Law ordaineth otherwise, the very Law of nature dictates, that it ought to be observed. For, the Civil Law, though it can command nothing which the Law of nature forbids, nor forbid what it commands, nevertheless may it circum∣scribe natural liberty, and prohibit what was naturally lawfull, and also by its force antevert that very dominion, which natu∣rally is to be acquired.
NOw let us see, what common right is competent to men over those things, which are made proper unto some. Which question, perhaps some may wonder at, se∣ing propriety may seem to have swallow∣ed up all that right, which arose from the common state of things. But it is not so. For, it must be considered, what was the mind of them, who first introduced singular dominions: which is to be be∣lieved such, as hath receded as little as might be from natural equity. For, if al∣so written Laws are to be drawn, as far as they may, into that sense; much more are Customs, that are not bound up in wri∣ting. First then, it follows hence, that, * 1.605 in extreme necessity, that old right of u∣sing things revives, as if the things had re∣mained common: because, in all human constitutions, and therefore in the Law of Dominion too, that extreme necessity seems excepted. Hence it is, that in na∣vigation, if at any time victuals faile, what every one hath ought to be brought forth for the common use. And so, in a fire, I may pull down my neighbours house to save mine: and cut in pieces the tackling or nets upon which my ship is
driven, if it cannot be disintangled † 1.606 by other means. All which are not introdu∣ced by the Civil Law, but expounded. For among Divines also, it is a received opi∣nion, in such necessity, if one take from another what is necessary to save his life, he doth not commit theft. Of which de termination this is not the cause, that some alleage, that the owners of the thing are bound by the rule of cha∣rity to give it to the necessitous; but, that all things seem divided amongst the owners, with a certain benign re∣ception of the primitive right. For, if the first dividers had been asked their o∣pinion thereof, they would have return'd our answer. Necessity, saith Seneca the father, the defense of human imbecillity, breaks every Law † 1.607, understand human, or made after the manner of human.
BUt Cautions are to be used, that this licence be not extravagant. First, * 1.608 By all means tryall must be made first, whether the necessity may be evaded some other way, as by an address unto the Ma∣gistrat, or by endeavouring to obtain the use of the thing from the Owner by in∣treaty. Plato permits one to fetch water out of his neighbours Well, so that he hath digged in his own ground, as far as the chalk, to find water: if he hath dig∣ged forty cubits deep, saith Solon: where Plutarch adds * 1.609, He thought necessity was was to be succoured, idleness not to be maintained. Xenophon * 1.610 in his answer to the Sin•…•…penses: Where we are not permit∣ted to buy, be it among Barbarians or Graecians, there do we take what we want, not out of wantonness, but necessity. Our second Caution is, This is not to be al∣lowed, if the Possessor be pressed with an equall necessity. For in a like case the * 1.611 Possessor hath the advantage. He is not a fool, saith Lactantius, who thrusteth not a shipwrackt man from his plank, nor a wounded man from his horse, to save him∣self: because he hath kept himself from do∣ing hurt, which is a sin; and to avoid this sin is wisdom. Cicero had said: Will not * 1.612 then a wise man, if himself be almost fa∣misht,
force another mans food from him, being a man whose life is worth nothing No sure. For my life is not more deer 〈◊〉〈◊〉 me, than that disposition of mind, to vis∣late no man that I may profit my self. We read in Curtius * 1.613: Better is the cause of him that delivers not up his own, than of him that requires what belongeth to ano∣ther. The third is this: Where it may be, restitution is to be made. Some think o∣therwise upon this ground, that he who hath used his own right is not bound to restitution. But it is more true, that the right here was not full, but restrained with a condition of restoring, when the necessity should be over. For such a right sufficeth to keep up natural equity against the rigour of dominion.
HEnce we may collect, how it may be lawful for him, that wageth a pious war, to seise upon a place situate in a peaceable Country; to wit, if there be, not an imaginary, but a certain danger, lest the enemy invade that place, and thence do irreparable damage: moreo∣ver, if nothing be taken, but what is necessary for caution, i. e. the bare custo∣dy of the place, the jurisdiction and pro∣fits being left to the Lord thereof: Lastly, if it be with a mind to restore the custody
so soon as the necessity is over. Enna, was reteined either by an evil, or by a necessa∣ry enterprize, saith Livy: because it is * 1.614 evil here, whatsoever is different, even in the least degree, from necessary. The Grecians that were with Xenophon, ha∣ving * 1.615 extreme need of ships, by the advice of Xenophon himself, took up such as pas∣sed by; yet so, that they kept the lading safe for the Merchants, and to the Mari∣ners gave both food and wages.
BEsides that right of necessity, there is another relique of old communion, namely, the right of harmeless utility. For why should not one, saith Cicero, when * 1.616 without his own detriment he may, com∣municate to another, in those things, which are profitable to the Receiver, and to the Giver not chargeable? Therefore Seneca saith, it cannot be call'd a benefit, * 1.617 to give leave to another to light his fire by yours. We read in Plutarch, It is not lawful to spoil our victuals, when we * 1.618 have more than enough; nor to stop or hide a fountain, when we have drank our fill; nor to abolish the way-marks either by Sea or Land, which have been useful for us. So a River, as a River, is
proper to that people, or that Prince, within whose dominion it runs, and they may make a mill on it, and take what * 1.619 fish the River yields: But the same Ri∣ver, as a running water, remained com∣mon, as to drinking or drawing of it. Ovid * 1.620 therefore calls the use of water common, and Virgil saith, it is open to all.
SO also Lands, and rivers, and if any part of the Sea be come into the pro∣priety of any people, it ought to be open to those that have need of passage for just causes: namely, because being expelld out of their own Country they seek void pla∣ces, or because they desire commerce with a remote Nation, or also because they contend for their own in a just war. The * 1.621 reason here is the same which hath been set down above, because dominion might be introduced, with a reception of such use † 1.622, which profits these, hurts not those: and therefore the Authors of Do∣minion are to be supposed willing rather to have it so. We have an eminent ex∣ample in the history of Moses: who, when he had to pass thorow the countryes of
other Princes, made this offer, first to the Edomite, then to the Amorite; that he would go in the High-way, and not di∣vert to private possessions: if he had need of any thing of theirs, he would pay them the just price. Which conditions when they were refused, he waged a just * 1.623 war, upon that score, against the Amo∣rite. For harmless passage was denyed, saith * 1.624 Austin, which by the most equal right of humane society should be open. The Graecians that were with Clearchus: We will go home, if no man trouble us: if any one do us wrong, by the Gods help we will endeavour to keep it off. Not much unlike is that saying of Agesilaus, when returning out of Asia he was come to Troas, he asked, whether they would have him pass as a friend, or as an ene∣my: And Lysander asked the Boeotions, whether they would have him pass with spears charged, or inclined. The Bata∣vians * 1.625 in † 1.626 Tacitus declare to the Bonnenses, If none opposed them, they would march quietly; if they met with force, they would cut their way with the sword. Ci∣mon going to aide the Lacedemonians, led his army through the territory of Corinth: being reprehended by the Corinthians for not asking leave of the City; for even he that knocks at anothers door, enters not without the permission of the Masters; answerd, But you did not knock at the doors of the Cleonaei and Megarenses, but
broke them open, thinking that all things ought to give place to the stronger. The truth is in the middle sentence, that pas∣sage is first to be requested † 1.627, and, if it be denyed, it may be forced. So Agesi∣laus * 1.628 returning out of Asia, when he had required passage of the Macedonia•…•… King, and he had answered, that he would consult: Let him consult, saith he, We i•…•… the mean time will march on. Nor may any rightly except, and say, he fears the multitude of those that pass. For my right is not taken away by thy fear: and so much the less, because there are ways of security; as, if the army pass in divided companies; if † 1.629 unarmed, (which they of Agrippina said to the Germans, and Strabo notes that custome antiently ob∣served in the Countrey of the Eleans:) if, at the charge of him that passeth, he that grants the pass, provide himself sufficient Guards; if Hostages * 1.630 be given, which Seleucus demanded of Demetrius, that he might suffer him to quarter within the bounds of his Empire. So also, fear of him, against whom, he that passeth makes a just war, is no sufficient reason to deny passage. Nor is it more to be admitted, if you say, he may passsome way els: for
any one may say as much, and by that means the right of passing world come to nothing: but it is enough, if, without de∣ceit, passage be demanded, where it is next and most commodious. Indeed, if he makes unjust war, who would pass; if he lead my enemies † 1.631 with him, I may de∣ny him passage: and more than so, I may meet him on his own ground and law∣fully hinder his expedition.
NOr is passage onely due to persons, but to Merchandise also; for no man hath right to obstruct the way of Com∣merce to any Nation with any other that is remote; because the permission of Trade is for the interest of human society, and is not discommodious to any one. For, al∣though some hoped gain, but not due, departs from any, that is not to be re∣puted as a loss. Philo * 1.632 speaks to our purpose: On the Sea, all Ships of burden safely pass, according to that right of Commerce † 1.633, which is between all Nations
arising from the desire of natural society; while they supply one another mutually, with that, which the one wanteth, and the other can spare. For envy hath never in∣vaded either the whole world, or the great parts thereof. Another testimony we have from Plutarch, speaking thus of the Sea: This element hath made our life sociable and perfect, that would otherwise be wild and without correspondence; it supplies our wants with mutuall aide, and by exchange of things needful procures fellowship and friendship. Wherewith agrees that of Li∣banius: God hath not granted all things to every land, but hath distributed his gifts to several Countrys, that men having need of one another might maintain society for their common good. Therefore hath he made the Merchant, to convey to all, what any place affords. Euripides * 1.634 also brings in Theseus, accounting Navigation among the Inventions, which human reason hath found out for the general benefit, thus:
But it is a question, whether Tribute may be imposd, by him that rules the Land, upon merchandise passing by Land, or by river, or by part of the Sea, which may be calld an accession of the Land. Certainly, whatsoever burdens have no relation to the merchandise, no equity suffers such to be imposed on the same. Neither can Head-money, put on the in∣habitants to sustein the charge of the Commonwealth, be exacted of passengers. Nevertheless, if either to secure the goods, or if, among other reasons, for this also, the publick be charged, some Taxe, by way of compensation, may be layd upon the Commodities, so that the measure of the cause be not exceeded. For upon this depends the justness of Tributes & Toll * 1.635. So, Strabo * 1.636 relates, that the Corinthians even from the most antient times, recei∣ved Tribute † 1.637 of the Commodities, which to avoid the compassing of Malea, were carried by land from Sea to Sea. So, the Romans received a price for the passage of the Rhene * 1.638: and the Lawyers † 1.639 books are ful of the like. But oft-times an equal measure is not kept; whereof the Arabi∣an Phylarchs are accus'd by † 1.640 Strabo, ad∣ding, It is a hard matter, amongst power∣ful and fieroe people, to compound upon termes not grievous to the Merchant.
TO stay sometime, for health sake, * 1.641 or for any other just cause, ought al∣so to be permitted passengers. For this too is among the innoxious utilities. Where∣fore Ilioneus in Virgil * 1.642, when the Tro∣jans were prohibited to stay on the shore of Afric, is bold to invoke the Gods as Judges: and the complaint of the Mega∣renses against the Athenians, who drave them from their havens † 1.643, against com∣mon right, was approv'd by the Greeks: so that the Lacedemonians esteemed no cause of war more just. Consequent here∣to is this, that is is lawfull to build a Cottage on the shore, to shelter them for a season, though we grant the shore to be possest by the Inhabitants. For, what Pomponius said, of having the Praetor's decree, that it may be lawfull to build on the common shore or in the Sea, perteins to buildings * 1.644 that are per∣manent. Moreover, per∣petuall habitation is not to be denied these foreiners, who being expulsed from their own seats, seek en∣tertainment abroad; on condition, they submit to the government in being, and to other things needfull for the avoiding of seditions. Which equity is well observed
by the divine Poet, when he brings in Aeneas yielding to Latinus the Militia, * 1.645 and soveraign power. And in Halicar∣nessensis, Latinus himself saith, the cause of Aeueas was just, if compelld by want of roome he came thither. It is the part of Barbarians to repell strangers, saith Strabo out of Era•…•…tosthenes: nor were the Spartans in this respect commended: and in the judgment of Ambrose also, they * 1.646 that prohibit strangers to dwell among them, are in no wise to be approved. The Eolians admitted the Colophonians, the * 1.647 Rhodians Phorbas and his Fellows, the the Carians the Melians, the Lacedemo∣nians the Minyans, the Cumeans others that came unto them. But, of the same Minyans, requiring a part of the Empire after they were admitted, Herodotus rightly saith, They were in urious, and * 1.648 did what was not lawfull to do. And Va∣lerius Maximus saith, They turned a be∣nefit into an injury. Lastly, if within the territory of a people, there be some de∣sert and barren ground, that also is to be granted to strangers upon their request, yea it is also rightly seised on by them; be∣cause, that ought not to be esteemed oc∣cupied, which is not cultivated, but only as to the Empire, which remains entire to the first people. To the Trojans were granted by the Latin Aborigines, seven hundred Acres of hard and rough Ground, as Servius noteth. In Dion Prusaeensis * 1.649
we read, They do no offence, who inhabi * 1.650 and manure a part of the land, that he neglected. The Ansibarians in Tacitus cry * 1.651 out: As the Heaven to the Gods, so is the Earth granted to mortals, and what is void is publick: looking up to the Sun and Stars, they did openly as it were enquire of them, whether they were pleased in beholding any ground empty and without inhabitants: They should rather call forth the sea, and overwhelm the spoilers of the Earth. But these men did ill apply these generall sayings to that particular busi∣ness. For those lands were not altoge∣ther void, but served to feed the cattell and heards belonging to the Army; which was a just cause for the Romans to deny them. And no less justly did the Romans of old ask of the Galli Senones, What right they had to require lands from * 1.652 the possessors, or to threaten them with War.
AMong all people, and from all time, about promises and contracts, ve∣ry great hath been the ver∣tue of an oath † 1.653 Our Ance∣stors, saith Cicero, esteemed no bond of faith stronger than this. Hence it hath been always be∣lieved,
that some heavy pu∣nishment hangs over the head of perjur'd persous * 1.654: So that posterity † 1.655 also paid for the sins of their forefa∣thers: (which was not be∣liev'd, but of most grievous crimes:) and even the will without the deed drew pu∣nishment upon it: both which Herodo∣tus confirms by the narration of Glaucus Epicydides, who only deliberated, whe∣ther * 1.656 he should break his oath concerning a thing commited to his trust.
And Juvenal rehearsing the same story * 1.657 so concludes:
—Such is the pain, The bare intent of perjury doth gain.Well said Cicero: An oath is a religious affirmation: and what you have firmly promised, as in the presence of God, is * 1.658 to be made good. But, that he adds; For now it belongs not to the wrath of the Gods, which is none, but to justice and fidelity; if by the name of wrath he un∣derstand a perturbation, it is not to be rejected; if any kind of affection or will to punish, it is not to be received, as La∣ctantius tightly proves.
LEt us now consider, whence ariseth the vertue of an oath, and how far it teacheth. First, what is said of pro∣mises and contracts hath place here al∣so: that a mind having use of reason, and deliberate is required. Wherefore, if any one, not conceiving that he swears, utter swearing words, as is related of Cydippe, that may be said, which Ovid ascribeth to her, taken out of Euripides, I ha•…•…e not sworn; because my mind went not with my tongue * 1.659. But if one, willing to swear, is not willing to oblige himself, he is ne∣ver the less obliged; because obligation is inseparable from an oath, and a ne∣cessary effect thereof † 1.660.
BUt, if one deliberately pronounce swearing words, yet without a minde of swearing, some say, he is not bound, yet sins in swearing rashly. More truly, he is bound to make good his words, whereto he hath called God a witness. For, that act, which by it self is obliga∣tory, proceeded from a deliberate minde. Consequent to this it is, that although that of Tully be true, What thou hast sworn according to thy minde, not to do is perjury † 1.661; Yet hath it this exception, un∣less he that swears know, or probably be∣lieve, the words are taken otherwise by him, with whom he dealeth. For calling God to witness his words, he ought to make the words true, as he thinks they are understood * 1.662. And this is that which the same Cicero saith: What is so sworn, as the minde of the giver of the oath con∣ceives it must be done, it must be kept. In
Tacitus we read, Trembling and changing the words of the Oath by various arts, cón∣scious * 1.663 of their own wickedness. Augustin: They are forsworn, who, the words being * 1.664 salved, have deceived their expectation to whom they have sworn. And Isidore: with whatsoever art of words one swears, God notwithstanding who is a witness of the conscience, takes it so as he doth to whom it is sworn. And this is that which is meant by the phrase Liquido jurare * 1.665. Therefore did Metellus rightly refuse to swear to the Apuleian Law, albeit there were some that said, the Law, by fault in the preferring of it, was void; and that the oath to the Law was so to be under∣stood, if the Law were rightly preferd and made. For, albeit in other promises is ea∣sily understood some tacit condition, which may exsolve the promiser, yet is not that to be admitted in an oath. Per∣tinent here is that noble place of the A∣postle to the Hebrews: God willing most abundantly to shew unto the heirs of pro∣mise the immutability of his counsell, con∣firmed it by an oath: That by two immu∣table things, in which it was impossible for God to * 1.666 deceive, we might have a strong
consolation. For the understanding of which words, we must know, the holy Writers often speak of God 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and rather according to that which seems to us, than that which is. For, God doth not truly change his D•…•…crees; yet is he * 1.667 said to change and to repent * 1.668, as oft as he doth otherwise than the words see∣med to found; to wit, by reason of a condition tacitly understood * 1.669, that cea∣seth, Jer. 18. 8. Examples are frequent to be * 1.670 seen. In which sense also God may improperly be said to deceive us: and the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that appears in the said place to the Hebrews, is wont to have the signification of an event frustrating hope, as we may see in sundry * 1.671 places. And this proceeds most easily in commi∣nations, because they do not confer a right on any; in promises sometimes, to wit, where a certain condition is secretly couched. Therefore doth the Apostle name two things, that note immutabili∣ty, the promise, because it gives a right; and the oath, because it repels tacit, and in some sort latent conditions; as we may see, † 1.672 Psal. 89. For, 'tis another thing if the very nature of the business openly de∣clare some conditions. Whereunto some refer that which is read, Numb, 14. 30. But it is more true, that the promised land is by oath appointed to them, not the persons, but the people, that is, to the po∣sterity of them, to whom God had sworn,
v. 23. And such a promise may be fulfild at any time, nor is limited to certain persons.
BY that which is said, may be under∣stood what is to be judg'd of an oath procured by deceit. For, if it be certain, that he who sweareth supposeth some∣thing done, which indeed is notso * 1.673; and * 1.674 that, unless he had believed it, he would not have sworn, the oath will not binde: But if it be doubtfull, whether he would not, even without that, have sworn the same, he must stand to his word, because the greatest simplicity, that can be, agrees unto an oath. And hither do I refer the oath, which Joshua and the Princes of the people of Israel sware to the Gibeo∣nites. * 1.675 They were indeed deceived by the Gibeonites, feigning that they came from a far Country. Yet did it not follow thence, that Joshua and the Princes, had they known their vicinity, would not have spar'd them. For, what they said to the Gibeonites, Peradventure ye dwell a∣mong us, and how shall we make a league with you? may have this sense, that the Gibeonites may be asked, what league they desire, whether Social, or of dedition: or also, that the Hebrews may shew, it was not lawfull for them, with certain
people, to enter into a social league: * 1.676 and not, that they may deny, life might be given to those that yield themselves. For, the divine Law, which devoted those nations to destruction, by comparison † 1.677 with another law, was so to be under∣stood, that it had place, except in them, that being summond were ready to obey. Which is proved, as by other arguments, so by the history of Rahab * 1.678, who was spared for her good deserts; and of Solo∣mon, who received the reliques of the Ca∣naanites under Empire and tribute. And to this purpose is that we read in the Book of Joshua * 1.679, That there was not one City of the seven Nations, which made their peace: for they were hardened, that mercy might not be shewed them. Where∣fore, sith it was credible, if the Gibeonites had told the plain truth, which for fear they did not, they should nevertheless have obtained their lives, and saved them∣selves on condition of obedience, the Oath was of force, in so much that af∣terward most grievous revenge was taken by the hand of God for the violation of it. Ambrose treating upon this story: Joshua (saith he) thought not sit to recall the peace which he had granted them, be∣cause it was confirmed by the Religion of an oath, lest while he condemned their fraud, he should lose his own credit. Not∣withstanding, the Gibeonites, being now by their dedition become subjects of the
Hebrews, susteined some punishment for their craft; For, they were put under a certain personal servitude † 1.680, when, if they had dealt openly, they might have been received into a tributary condition.
YEt is not the signification of an oath to be extended beyond the received cu∣stome of speech. Therefore they were not perjurd, who, when they had sworn they would not give their daughters in marri∣age to the Benjamites, permitted the ra∣vished to live with the raptors. For, 'tis one thing to give; another thing not to require that which is taken away † 1.681. Am∣brose, of this deed: Which indulgence seemeth to carry with it a congruous re∣venge upon their intemperance, when they were permitted only to enjoy whom they had ravished, without the solemnity of mar∣riage * 1.682. Whereto is not unlike, that the Achaians, when the Romans allowed not of some things done by them, and confirmed by oath, requested them to al∣ter what themselves pleased; and not bind the Achaians with religion to make the things void, which by oath they had established.
THat an oath may be of force, it is re∣quisite the obligation be * 1.683 lawfull. Wherefore a sworn promise of a thing un∣lawfull, either naturally, or by divine in∣terdict, or by human also (of which here∣after) will have no force at all. Well saith Philo the Jew * 1.684: Whosoever, for his oaths sake, goes about any injust action, let him know, he is not an observer, but an eversor of an oath; which is worthy of great care and religion, and where∣with honest and righteous things are wont to be confirmed. For he adds one fault to another; to an oath not rightly made, and from which it had been better to abstain, he adds an act unlawfull. Wherefore, ab∣staining from the unjust action, let him pray to God, whose property is to have mer∣cy, that he may obtain his pardon. For to choose a double evill, when one may be ea∣sed of the one half, is extreme folly and madness, An example hereof may be gi∣ven * 1.685 in David, who spared Nabal, whom he sware he would kill. Cicero mentions a like example in the vow of Agamem∣nom; Dionysius Halicarnessensis in the conjuration of the Decemviri about op∣pressing the Commonwealth. † 1.686 Ambrose * 1.687: It is sometimes against duty to perform a promise, to keep an oath. Augustin: If ones
faith be pawned to commit a sin, it is strange to call it faith. Basil saith the same, in his second to Amphilochius.
YEa, although what is promis'd be not unlawfull, but hinders a greater morall good † 1.688, in this case also the oath will not be of value. The reason is, be∣cause we owe to God proficiency in good, so that we may not take away from our selves the liberty thereof. Hither pertains a remarkable passage of the forecited Phi∣lo, worthy to be read here: Some are of so hard and unsociable a nature, either ha∣ters of mankind, or enslav'd by that cruel mistress anger, that they grow more obsti∣nate in their ferity of manners by swea∣ring, they will not admit such a one to their Table or within their doors, they will never do him any good, they will ne∣ver receive any thing from him till death. That he saith, some swar never to do good to such or such * 1.689, the Hebrews called this A vow concerning beneficence. The form whereof, as the Hebrew Masters have it, is agreeable to that Korban in the Gospel, of this sense: Be it a gift ded•…•…cated to God, whatsoever good thou mightest ever re∣ceive from me. The vow, the penalty of consecration being added, was judged very valid by the Hebrew Masters (the
worst interpreters in this part of divine Law) though 'twere made against one's parents: which, in that place, is refuted by Christ, in whose words to honour is to benefit, as appears by comparing the place * 1.690 in Mark, and 1 Tim. 5. 3, 17. and Numb. 23. 11. But against whomsoe∣ver it is conceived, we shall rightly pro∣nounce the oath not obligatory, because, as we have said, it is against proficiency.
WE need not speak of things alto∣gether * 1.691 impossible: for it is ma∣nifest enough that no man is o∣bliged unto such. But, for that which is impossible for the time, or upon supposi∣tion, the obligation is pendent, so that he who hath sworn upon a supposition, is bound to do his best endeavour, to render that possible which he hath sworn.
THe form of swearing differs in words, agrees in deed. For it ought to have this sense, that God may be invoked, to wit, in this manner, God be witness, or God be Avenger, which two are coinci∣dent. For, when a Superiour having right of punishing is call'd to witness,
there is withall asked of him a revenge of perfidiousness † 1.692: and he that knows all things is a revenger, because a wit∣nes. Plutarch * 1.693: Every oath ends in im∣precation, if one shall be perjurd. Hither pertein the old forms of leagus, wherein it was the custom to use sacrifices, as ap∣pears, Gen. 15. 9, &c. As that Roman form in Livy † 1.694: Thou O Jupiter so sm•…•…e him, as I do this Hogg. And elswhere; Praying the Gods they would so slay him, as he had slain the Lamb. And in Poly∣bius and Festus: If wit•…•…ingly I deceive, solet Die piter cast me away, as I cast a∣way this stone.
MOreover, it is an antient custom to •…•…wear by other things named, & by other persons; either because they wished those to be hurtfull to them, as the Sun, the earth, the heaven, the Prince; or be∣cause they desired to be punisht in the same, as in their head, in their children, in their Country, in their Prince. Nor was this the custom of prophane nations onely, but of the Jews, as Philo * 1.695 shew∣eth. For he saith, men that are about to swear, ought not for every matter present∣ly to have recourse to the maker and fa∣ther of all things, but to swear by their pa∣rents, by heaven, earth, the universe.
Wherewith agrees, what the Interpreters of Homer note, that those old Greeks were not wont hastily to swear by the Gods, but by other * 1.696 things present, as, by this Scepter: and that the same was constitu∣ted by the most righteous King Khada∣manthus, is deliverd by Porphyry and the Scholiast upon Aristophanes. So we read, that Joseph swore by the life of Pharaoh, according to the manner of the Aegypti∣ans, noted there by Abenesdras; Elisha, * 1.697 by the life of Elija. And truly Christ, in the 5. of Matthew, doth not, as some think, pronounce these oaths less law∣full, than the other made by the express name of God: but, whereas the Hebrews less regarded these, out of an opinion like to his who said, He did not think the scepter to be God, He shews that these al∣so are truly oaths. For Ulpian too hath * 1.698 very well said; He that swears by his life, seems to swear by God; for he swears with respect of the Deity. So saith Christ, He that sweareth by the Temple, sweareth by him that dwelleth therein: and, he that sweareth by heaven, sweareth by him that sitteth thereon. But the Hebrew Masters of those times were of opinion, that men were not bound by the oaths made by Creatures, except a penalty being added, as, if the thing of which the oath was made, were consecrated to God. For, this is the oath Korban, or of the gift, whereof, not only in the said place of Matthew,
but in the Laws also of the Tyrians, men∣tion was exstant, as we learn out of Jo∣sephus's disputation against Appion * 1.699. This errour therefore, in that place, Christ opposeth. Tertullian saith, the antient Christians sware by the life of the Prince more sacred than all Genii. In Vegetius there is a form, above mentioned, wherein the Christian soldier swear, not by God only, but also by the Majesty of the Em∣perour, which is next to God to be lov'd and honour'd.
ANd, if one swear by false Gods, he shall be bound † 1.700; because, though under false notes, yet in a generall noti∣on, he looks upon the Deity: where∣fore the true God, if one swear falsly, in∣terprets it to be done to his dishonour. And we see that holy men, though they never gave an oath under that form, much less did they ever swear so; which I won∣der is permitted by Duarenus; yet, if the persons with whom they dealt, could not be drawn to swear otherwise, they con∣tracted with them, themselves truly swea∣ring as they ought, but receiving from them such an oath as could be had. Wee have an example hereof in Jacob and Laban, Gen. 31. 53. This is that which * 1.701 Austin saith: Even he that swears by a stone, if he swear false, is † 1.702 perjur'd. Af∣ter:
The stone hears not thy words, but God punishes thy fraud.
THe principal effect of an oath, is to end controversies, as the divine writer to the Hebrews saith: and likewise Philo, An oath is Gods testimony of a thing in question: and Halicarnassensis, The last * 1.703 confirmation among men, both Greeks and Barbarians, which no time will abolish, is that which by oath calleth the Gods to be Sureties of their Covenants. So, to the E∣gyptians was an oath the greatest assu∣rance among men. Wherefore he that swears is under a double tye, first that the words agree unto his meaning, which Chry∣sippus calls 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, next that the deed a∣gree unto his words, which he calls 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. He that offends in the former, is said by the same Chrysippus * 1.704, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, in the later 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, very distinctly, though the terms are wont sometimes to be confounded.
ANd verily, if the matter be such, and the words so conceived, that they be referred not to God alone, but to man, a right doubtless will be acquir'd by man out of the oath, as out of a promise or con∣tract, which ought to be understood most
simply and plainly. But, if either the words do not respect man, by conferring upon him a right; or, if they do respect him, but there is somewhat which may be oppos'd against him; then, such will be the force of the oath, that indeed he can attain no right, yet nevertheless he that hath sworn is bound to God to stand to his oath. An example hereof is in him, who by unjust fear gave cause to a sworn promise † 1.705. For he attains no right, or such as he ought to render, upon this ground that he gave cause to the loss. So we see the Hebrew Kings, both reproved by the Prophets, and punished by God, because they kept not their faith sworn to the Babylonian Kings. Cicero commends the Tribune Pomponius, who performed what being compell'd by terrour he had sworn. So much, saith he, in those times did an oath prevail. Wherefore it was not only the duty of Regulus to return to prison, how unjust soe'r it was; but of those ten also, whom Cicero mentions, to * 1.706 return to Annibal: for they were obliged by their oath. * 1.707
NOr is it thus only among publick enemies, but among all: For, the person alone to whom we swear, is not respected; but He by whom we swear * 1.708,
God, who sufficeth to create an obligati∣on. Cicero therefore is to be rejected, when he saith, it is no perjury, if the price promised for life be not brought un∣to Robbers: because a Pirate is not a de∣terminate but a common enemy of all, with whom we ought to have no society either of faith or oath. Which is also said by him elsewhere of a tyrant; and by Brutus, in Appian, With a tyrant, the Ro∣mans * 1.709 have no faith, no Religion of an oath. But, as in the constituted Law of Nations it is true, and shall be shewed hereafter, that an enemy differs from a Pirate; so cannot that difference have place here, where, though the right of the person is deficient, God is concernd † 1.710: for which reason an oath is called by the name of a vow. Besides, it is not true which Cicero assumes, that there is no so∣ciety of right with a Robber. For 'twas well answerd by Tryphoninus, that a thing deposited is to restored to a thief * 1.711, by the very Law of Nations, if the owner thereof appear not. Wherefore I cannot allow that which is deliverd by some, that he who hath promised some thing to a Robber, may satisfy his conscience with a momentaneous payment, so that it may be lawfull for him to recover what he hath payd. For the words, in an oath, as to God, are to be understood most simply and with effect. And therefore he that returned secretly to the enemy, and a∣gain
departed, made not good his oath concerning his return, as it was rightly judged by the Roman Senate.
BUt that of Accius * 1.712, T. Thou hast brokeis thy faith. A. Which I neither gave, nor give to any one that is un∣faithfull, may be allowed of in this sense, * 1.713 if the sworn promise had openly respect unto another promise, which was as it were an implicit condition to it; not, if the promises be of divers kind, and without mutuall respect; For then must every one keep that which himself hath sworn. And upon this ground Regulus is praised by this compellation of the Poet:
Thy Memory is lasting, thy Fame grow'th: 'Cause to th' unfaithful thou hast kept thy oath. * 1.714
The Psalmist, where he enumerates the vertues of a good man, addes this: Ha∣ving sworn to his own hurt, he changeth not. * 1.715
HEre is to be noted, whensoever the person hath no right, by reason of some such defect which we have said, but
the obligation is to God, in this case the Heir of him that hath sworn is not bound. Because, as goods pass to the Heir, that is, such goods as are in the commerce of men, so do the burdens accompanying the goods pass with them; and not other things, which one oweth out of the duty of piety, favour, or faith. For these do not pertein to that which is strictly called right among men.
BUt also where the person hath a right, if yet the oath regard the utility of any one, and he refuseth † 1.716 it, he that hath sworn shall not be bound. Neither shall he be bound, if the quality * 1.717 ceaseth under which he hath sworn to any: as, if a Ma∣gistrate cease to be a magistrate. Curio in Caesar †, to those that had been the soldiers of Domitius, speaks thus: How could he hold you bound by oath, when having cast away his authority and left his command, being a private man and a captive, him∣self was come under the power of another? And after he saith, the oath was voided by * 1.718 the loss of his place. * 1.719
IT is a question, whether that which * 1.720 is done against ones oath be unlawfull only, or also void. Of which I think we must distinguish thus: that if ones faith be onely engag'd, the act done against oath is valid, namely a testament, or sale; not valid, if the oath be so conceiv'd, that withall it conteins a full abdication of power to that act.
THe acts of Superiours cannot so far * 1.721 prevail, that an oath, so far as it was truly obligatory, is not to be performed: for that is of naturall and divine right. But because our acts are not fully in our * 1.722 own power, but so that they depend up∣on our Superiours, therefore may there be a twofold act of Superiours about that which is sworn, the one directed upon the person of him that swears, the other upon the person to whom he swears. Upon the person of him that swears it may be directed, either before the oath is taken, by making such oath void, in as much as the right of the inferiour is conteind un∣der the power of the superiour; or after the oath is taken, by forbidding it to be ful∣fill'd.
For, an Inferiour, as Inferiour, could not bind himself, but so far as it should please his Superiour: for he had not more ample power. Thus, by the Hebrew Law, Husbands made void the Oaths of their Wives, Fathers of * 1.723 their Children, which were not yet in their own power. Seneca † 1.724 proposes this question: What if a Law be made, that none shall do, that which I have promised my Friend I will do? and answers, The same Law defends me, which forbids me. But, the act also may be mixt of both, as, if the Superiour ordain, what the In∣feriour shall swear in this or that case, namely, out of fear, or weakness of judgement, shall be of force, if it be ap∣proved by him. And upon this ground may be defended those absolutions of oaths, which of old * 1.725 were exercis'd by Princes, and are now, by the will of Princes, exercis'd by the Prelates of the Church, for the better securing of piety. Upon the person of him to whom one swears, the act may be directed by taking away from him the right which he hath gotten, or also, if he have no right, by forbidding his emolument out of such an oath; and that two ways, either for his punishment, or for the publick good, by vertue of supereminent dominion. Hence also may be understood, if the party swearing be not of the same country with him to whom the oath is made, what his
or the others Rulers may do concerning it. But, he that hath sworn and promised something to a nocent person as such, namely, to a pirate, cannot therefore take away from him, in the way of pu∣nishment, the right which he hath gotten by the promise: because then the words would have no effect, which by all means is to be avoided.
HEre it is observable by the way, that the words of Christ and of James against swearing, do not properly belong to an assertory oath, whereof are some ex∣amples in the Apostle Paul, but to the promissory of a future uncertain thing. This evidemtly appears by the opposition in the words of Christ: Ye have heard, it hath been said to them of old, Thou shalt not forswear thy self, but shalt render to God thy oath. But I say unto you, swear not at all; and the reason given by James is this, * 1.726 Lest ye be found deceitfull † 1.727: for that is the meaning there. The same is proved by the words of Christ; But let your Communication be yea, yea; nay, nay: which is exprest by S. James thus; But let your yea be yea; and your nay, nay † 1.728. Where the first yea, and nay, signifies the promise, the later its performance. For yea is a word of promising: whence it is
explain'd by Amen, Apoc. 1. 7. and of the same signification among the Roman Lawyers are the words 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 and quidni, in answer to a stipulation. For the imple∣tion of a promise, it is taken in that place of Paul, where he saith, All the promises * 1.729 of God in Christ are Yea and Amen. * 1.730 Hence the old saying of the Hebrews, A just mans yea is yea, and his nay is nay. On the contrary, whose deeds dis∣ser from their words, with them is said to be yea and nay: that is, their yea is nay, and their nay is yea. So the Apostle him∣self expounds it: for when he had denyed himself to have used lightness, he addeth, his speech was not yea and nay † 1.731. Now, if yea and nay signify lightness, it follows, that yea yea, nay nay, signify constancy. Christ therefore saith the same with Phi∣lo * 1.732, It is best and most pros•…•…able, and to the rational nature most convenient, to ab∣stein from swearing, and so to accustom ones self to veracity, that ones word may be taken for anoath † 1.733. Josephus of the Essens: Whatsoever they say is firmer than an oath: and to swear is accounted, among them, a thing supersluous. From the Es∣sens, or those Hebrews whom the Essens followed, this seems received † 1.734 by Pytha∣goras, whose sentence 'tis, Let no man swear by the Gods, but every one take care of his credit, that he may be believed
without an oath * 1.735. The Scythians say of themselves to Alexander, as Curtius re∣lateth, Think not that the Scythians con∣firm their friendship by oath: * 1.736 they swe•…•… by keeping their word. † 1.737 Cicero relates in his Oration for L. Cornelius Balbus, When one at Athens, who had lived amongst them in great repute for his gra∣vity and sanctity, had publickly given his testimony, and approched to the Altars to make his oath, all the Judges with one voyce reclamed, and would not let him swear; because they would not have it thought, that truth depended more upon the religion of an oath, than upon the word of an honest man. With the saying of Christ well agrees that of Hierocles upon the golden verses: He that in the beginning said, Reverence an oath, there∣in gave a precept to abstain from swearing about such things, which may be done and not done * 1.738, and are of an uncertain issue. For such things are little to be regarded,
and are mutable, and therefore neither are they worthy of an oath, nor is it safe. And Libanius accounts it among the praises of a Christian Emperour, He is so far from perjury, that he is even afraid to swear the truth † 1.739.
THerefore in many places, in stead of swearing, it was invented, that faith should be bound by giving the right hand (which was * 1.740 the firmest bond of faith among the Persians) or by some other sign: which was of that force, that if the promise were not fulsil∣led, the promiser was accounted no less * 1.741 detestable, than if he had forsworn him∣self. Principally of Kings and Princes it is a most usual saying, Their word is as strong as an Oath. For, they ought to be such, that they may say with Augustus, Bonae sides sum, My credit's good; and with Eumenes, I will lose my life sooner than my credit † 1.742. Caesars right hand is prai∣sed by Cicero for firmness in keeping pro∣mises,
no less than valour in wars and battails: and in the Heroical times the Scepter lifted up went for the Oath of Kings, as Aristotle hath noted, 3. Po∣lit. 14.
LEagues are Covenants or Agreements made by command of the highest pow∣ers: wherein the parties are bound over to the divine wrath, in case they break their faith. It is a famous question, Whe∣ther they may be enterd into with those that are aliens from true Religion: which in the Law of Nature hath no doubt or difficulty; for that Law is so cōmon to all men that it admitteth not any difference of Religion. But the question is about the Law Divine: out of which it is discussed, not by * 1.743 Divines only, but by some Law∣yers too, and amongst them by Oldradus and Decianus.
FIrst let us consider of the old Divine Law, and after of the new. It was lawful, before the Law of Moses, to con∣tract a League with aliens from Religion,
for an offensive and harmless behaviour. We have an example in the League of Ja∣cob * 1.744 with Laban: to say nothing now of Abimelech, seeing it is not certain he was an Idolater. Nor did the Law gi∣ven by Moses make any change. The Egyptians may be an example: who were then (no doubt) Idolaters; yet are the * 1.745 Hebrews forbidden to be averse from them. The seven Nations are to be ex∣cepted, condemnd by divine sentence, whereof the Israelites were delegated to be the executioners. For these persisting in their Idolatry, and refusing to submit, might not be spared; to whom, by divine decree, were added the Amalekites. * 1.746 Leagues of commerce also, and such like perteining to the utility of both or of ei∣ther * 1.747 party, are by the Law permitted with the prophane: for nothing is found to hinder them. And we have the ex∣amples of Leagues which David and Solo∣mon made with Hiram King of Tyrians: and it is observable, that in the sacred history the league made by Solomon is said to be made according to the wisedom which God had given him. Indeed, the Law of Moses specially commands, to do good unto their Countrymen; Moreover, * 1.748 the peculiar diet and course of life, pre∣scribed to the Jews, did scarce admit any familiar conversation with other people. Yet doth it not follow hence, either that it was not lawfull to do good to fo∣reiners,
or that it was not also laudable, which the ill Interpretation of later Ma∣sters, not rightly, hath collected thenee. And therefore Juvenal saith of the Jews, That they would not shew the way to any differing from them in Religion. Where, by the example of shewing the way, are signified easy courtesies and benefits that may be done without any trouble or charge; such as Cicero and Seneca say are * 1.749 to be done to strangers, whom we never saw before. To the same purpose is that of Tacitus of the same Jews; Among * 1.750 themselves they are of obstinate faith, and very mercifull; to all others they bear an hostile hatred. So, in the New Testa∣ment we often read, that the Jews have no dealing with other Nations; and A∣pollonius Mola objected to them, that they admitted not those, that had diffe∣rent opinions of God, nor had any thing to do with men of another institution † 1.751. But, that this is not the sense of the Law, Christ hath taught us by his own exam∣ple, when, being every where most ob∣servant of the Law, he refused not water from the Samaritan woman. And David long before sought for refuge among ir∣religious
people, no where reprehended * 1.752 for it. Solomon in Josephus, dedicating the Temple, and praying, that God in that place would hear also the prayers of strangers, saith, We are not of an inhuman disposition, nor ill affected to those that are not of our own Nation. From this rule are to be excepted not only the Nations before mentiond, but the Ammonites too, and Moabites; of whom it is written, Thou shalt not seek their prosperity (so we turn it rather than their peace) nor their good all thy days. In which words bene∣ficent leagues with them are forbidden, and not a right of War allowed; or to be sure (which is the judgment of some He∣brews) peace is forbidden to be asked of them not, to be accepted when tis offerd. Certainly, a right of War upon the Am∣monites is denyed the Hebrews, Deut. 2. 19. Nor did Jephtha carry arms against them, but after he had tryed the ways of an equal Peace; nor David, till he was provoked by cruel injuries. It remains, that we enquire about society in War. That this also, before the Law, was not unlawfull with prophane Nations, ap∣pears by the example of Abraham * 1.753, aiding the wicked Sodomites with his arms. Nor do we find any thing in this matter generally changed by the Law of Moses. And this we see to have been the opinion of the Asmonaeans † 1.754, being both skilful of the Law and very reverent, as
tis evident by their Religious observati∣on of the Sabbath, no other use of arms being permitted, but only for self-defense. And these yet made a league with the Lacedemonians and Romans, by the assent of the Priests and people: yea and pub∣lickly offerd Sacrifice for their safety. In∣stances to the contrary have peculiar causes. For if beside those that were ex∣pressed in the Law, God had signified by his Prophets, any Kings or Nations to be odious to him, and condemned to an overthrow; to undertake the defense of them, or to joyn forces with them, was, without doubt, impiety. Hither perteins that of the Prophet to Jehosaphat touch∣ing the King of Israel: shouldest thou * 1.755 help the ungodly, and love them that hate † 1.756 the Lord? therefore is wrath upon thee from before the Lord. For Michaia the Prophet had already foretold an unhap∣py issue of the War. And that of another Prophet to Amaziah, O King, let not the Army of Israel go with thee: for the Lord is not with Israel, to wit, with any of the Children of Ephraim. Now, that this comes not from the nature of the League, but from some peculiar quality of the person, is evinc'd even hence; because Jehosaphat was heavily rebuked, a curse also being added, for this, that for com∣merce sake he had joyned himself with * 1.757 Ahaziah King of Israel, and had en∣tred into such a society, as David and
Solomon had made with Hiram: whom we have said to have been, for that rea∣son, partly not reprehended, partly com∣mended. For, what is added, that Aha∣ziah * 1.758 did wickedly, ought to be referred to his whole life: for which God was of∣fended * 1.759 with him, and with all his enter∣prizes, as this history is explained in the book entitled Clement's Constitutions. * 1.760 Moreover, this is to be noted, that their cause, who being sprung from Jacob had forsaken God well known unto them, was worse than the cause of strangers. For against those Revolters the rest of their Countrymen were armed * 1.761 by a Law ex∣tant. * 1.762 Sometimes also Leagues are blamed for some vice of the mind wrence they did proceed: so was As•…•… reprehended by the Prophet, for betaking himself to the so∣ciety of the Syrian, upon distrust of God; which he had shewed in sending to the Syrian things consecrated. But the same King was reproved too, because he had * 1.763 plac'd his hope, not in God, but in Phy∣sicians. Wherefore, it doth not, from this history, more follow that it is evil, by it self, or generally, to contract society with such as the Syrians were, than to con∣sult with Physicians. For, many things not unlawfull are vitiated by the mind, as David's muster, and Ezechia's shewing * 1.764 of his treasure. So elswhere, confidence put in Egypt is reprehended, when it was * 1.765 lawful nevertheless for Solomon to con∣tract
affinity with the Egyptian. To all which, this is to be added, that the He∣brews, under the state of the old Law, had express promises of victory, if they kept the Law; the less need had they to have * 1.766 recourse unto human aids. Lastly, there are indeed extant in Solomons Proverbs, * 1.767 Sentences not a few, of shunning the so∣ciety of wicked men: But these are the Advisos of prudence, not Precepts of Law; and those very Admonitions, as most moral sayings, are capable of very many exceptions.
NOw, the Law of the Gospel hath * 1.768 changed nothing in this business; yea, it hath a more favorable aspect upon leagues, whereby aliens from Religion, on just cause, are relieved; because, it hath not left beneficence to all sorts of men, upon occasion given, only free and lau∣dable, but hath put it under precept. For, by Gods example, who maketh his Sun to arise upon the good and evil, and sen∣deth rain to refresh them both, we are commanded to exclude no kind of men from our benefits. Tertullian said well: * 1.769 So long as Israel only was his people, God did justly command mercy toward their brethren alone: But after that he gave unto Christ the Nations for his inheri∣tance,
and the ends of the earth for his pos∣session, and that began to be paid which was promised in Hoseah, They that were not my people shall be my people, and the Na∣tion that had not obtained mercy shall ob∣tain mercy; from that time Christ hath extended unto all the Law of fraternal benignity, excluding none from our com∣passion, no more than from his vocation. Which words are to be understood, with differenee of degree, that we must be good to all, but especially to the professors of the same Religion. In Clement's Con∣stitutions we read, It is our duty to com∣municate of our goods to all; yet so, that we have a speciall eye to the poor Saints † 1.770. Familiar conversation also with aliens from Religion is not prohibited: no not with them whose cause is worse, and who fall away from the rule of Christian Dis∣ciplin, is all commerce interdicted, but familiar without necessity, not also that which affords any hope for their amend∣ment. And that which is in Paul, Be yee not unequally yoked together with unbe∣lievers: for what fellowship hath righte∣ousness with unrighteousness? and what communion hath light with darkness? And what concord hath Christ with Be∣lial? or what part hath he that believeth with an Infidel? pertains to those that fea∣sted in the Idol-Temples, and so either committed Idolatry, or at least made a shew thereof. This is manifest by the
following words, What agreement hath the Temple of God with Idols? parallel to the words in the former Epistle to the same, Ye cannot be partakers of the Table * 1.771 of the Lord, and the table of the Devills. Nor will the argument proceed rightly from this, that of our own accord we are not to submit to the Government of the prophane, nor contract mariage with them: For in both these cases appears greater hazard, or certainly greater diffi∣culty, to the use of true Religion. Add, that these bonds are more lasting, and in ma∣trimony there is a free choice; when leagues are to be made according to the exigence of times and places. And as it is no evill to do good to the prophane, so neither is it unlawfull to implore their help, as Paul invoked the aid of Caesar and the Chief Captain.
HEre then is no intrinsecal or univer∣sal * 1.772 pravity, but to be esteemed by the circumstances † 1.773. For, heed must be taken, lest too much commixture bring contagion to the infirm: to which end it will be profitable, their seats should be distinct, as the Israelits dwelt asunder
from the Egyp∣tians * 1.774. Hither pertains, what we have else∣where alleged, concerning the Religion of Jews and Christians in their fellow-soldiership with the Pagans. A∣gain, if by such society the prophane State be like to receive great encrease, there will be no joyning with them, ex∣cept in point of extreme necessity. Where∣in hath place, what Thucydides said in a like matter: They that are treacherously * 1.775 assaulted, as we are by the Athenians are not to be blamed, if they seek for safety, and secure themselves, by the aid, not of Greeks only, but Barbarians. For it is not every right, that is sufficient for the do∣ing of that, which may be esteemed in∣directly, if not directly, hurtfull to Reli∣gion. Because, in the first place we must * 1.776 seek the Kingdom of Heaven, that is, the propagation of the Gospel. It were to be wisht, that many Princes and peo∣ple at this day would take into their con∣sideration that free and pious speech of Fulco Archbishop once of Rhemes, ad∣monishing Charles the simple thus: Who may not be afraid, seeing you covet amity with the enemies of God † 1.777, and to the o∣verthrow and ruine of the Christian name take unto you Pagan arms, and enter into leagues detestable? For there is little dif∣ference
between associating with Pagans, and worshipping of Idols, God being deny'd. In Arrianus is extant a saying of Ale∣xander: They are great Offendors, who serve the Barbarians against the Greeks, contrary to the Laws of Graecia.
HEre is to be added, sith all Christi∣ans * 1.778 are members of one body, and are commanded to be sensible of one ano∣thers pain, as this pertains to single per∣sons, so doth it also concern Common∣wealths as they are Commonwealths, and Kings as they are Kings. Nor ought every one, in his own particular only, but according to the power committed to him, to do service unto Christ. Now Kings and Commonwealths are not able to do thus, while an impious enemy overruns all with arms, except they mutually aid and assist each other † 1.779, which cannot commodiously be effected without entring a League to that purpose. Which League hath been long since entred, and the Ro∣man Emperour, by common consent, chosen Prince thereof; Wherefore it is the duty of all Christians, according to their power, to contribute men or moneys to this common cause: and I do not see how any can be excused for not doing so, unless
they be engaged at home, and deteined by some inevitable war, or other the like unhappy hindrances.
THis question also is often incident, If divers wage war, to which of them he ought to give assistance, who is con∣sederate to Both. Here first we must re∣member, that there is no obligation to unjust wars. He then is to be preferr'd who hath a just † 1.780 cause of war, if he hath to do with one without; yea, if with one within the league. So * 1.781 Demo∣sthenes shews, the Athenians ought to assist their fellows the Messenians, against their other fellows the Lacedaemonians, if the injury begin from these. But this is true, so, unless it were agreed, that no aid should be sent against such a confede∣rate. In the agreement of Hannibal with the Macedonians, it was an article, † 1.782 We will be enemies to your enemies, except the Kings, and Cities, and havens, where∣with we have league and friendship. More∣over, if the confederates quarrel upon causes unjust on both sides (which may happen) neither part is to be taken. So it is said in Aristides: Did they crave aid * 1.783 against aliens, 'twere easy to answer: but, when one confederate opposes another, they would not mix in the business. But if
confederates make war upon others, each upon just ground, if aids can be sent to both, viz. men or money, they are to be sent, as it is done about personall credi∣tors: but, if his presence, who hath pro∣mised, be requir'd; seeing he cannot be present with both, reason determines him to prefer that side, where with his League is more * 1.784 antient: which the Acarnans tell the Spartans in P•…•…lybius: and to the same effect is the answer of the Roman Consul to the Campanians, It is meet, our relations should so be orderd, that no elder friendship and society be violated † 1.785. Yet is this exception to be added: unless the yonger league have, beyond the pro∣mise, some thing that conteins in it, as it were, a translation of dominion * 1.786, that is, something of subjection. For so also, in vendition † 1.787, we say the former is to be preferr'd, except the later hath translated a dominion. So the Nepesins in Livy * 1.788 held the faith of dedition more sacred than that of society. Some distinguish of these things more subtilly, but what I have said, as it is more simple and plain, so I suppose it is more true.
THe time being expir'd, the League is * 1.789 not to be conceiv'd tacitly renew'd, unless by such acts, which do admit no o∣ther
interpretation; For a new obli∣gation is not easily presumed. If one * 1.790 part hath violated the league, the other may depart from it. For the several heads of the League have every one the force of a condition. For example may be that in * 1.791 Thucydides: They bear the blame of brea∣king the League, not, who being deserted betake themselves to others; but they, who perform not really that assistance which they had promised upon oath. Elswhere in the same Historian: If either part trans∣gress their Articles never so little, the A∣greement's broken. But this is thus true, except it were otherwise condition'd; which is wont sometimes to be, that for every offense it may not be lawfull to de∣part from the League.
IF we look upon him alone, who hath promised, he is bound of his own ac∣cord to perform that to which he meant to bind himself. In a promise must be * 1.792 considered, what you thought, not what you said, as Cicero hath it. But, because internal acts are not visible by them∣selves, and somewhat certain must be de∣termined, lest there be no obligation at all, if every one might free himself by af∣fixing on his own words what sense he please; by the dictate of natural reason, he to whom any thing is promisd, hath
a right to compell the promiser to that, which right interpretation suggesteth. Fo•…•… otherwise the matter would have no end, which in morals is accounted for impos∣sible. In this sense, it may be, Isocrates, when he had discoursed of Covenants in the prescription against Callimachus (as the most eminently learned Petrus Faber hath rightly amended the place) saith, This Common Law we men perpetually use among our selves; nor Grecians only, but Barbarians too, as he had said a little a∣fore. Pertinent is that in the old form of Leagues in Livy, Without evil deceit, as those words here are most rightly † 1.793 un∣derstood * 1.794 at this day. The measure of right interpretation is, a collection of the meaning out of signes most probable. If there be no conjecture drawing another way, the words are to be understood ac∣cording to their propriety, not Gramma∣tical, which is from their original, but from popular * 1.795 use. Wherefore the Lo∣crians used a foolish refuge for their per∣fidiousness, when, having promised they would stand to their agreement, so long as they stood upon the earth, and caried heads upon their shoulders, they cast out the earth put into their shoos, and threw away the heads of other men pla∣ced on their shoulders, as if by that means
they could acquit themselves; The histo∣ry is extant in Polybius † 1.796; and some o∣ther examples of like falsness in Polyae∣nus, which need not be transcribed, be∣cause they have no controversy. By such frauds, Cicero * 1.797 said honestly, perjury is bound faster, not dissolved.
TO Words of Art * 1.798, which the people hardly understand, is to be applyed the definition of men skilful in every Art: as, what is Ma•…•…esty, what is Paricide: which the Masters of Oratory refer ad statum finitivum. For Cicero * 1.799 said truly, Logicians have no vulgar terms, they use their own: and so do almost all other arts. So, if in an Agreement an Army be spoken of, we shall define an Army to be such a number of Soldiers, which openly dares invade the territories of an enemy. For Historians usually do oppose that which is dome privily, or after the manner of robbers, and that which is done by a just Army. Wherefore in proportion to the enemies strength, it is to be judged of what forces an Army doth consist. Ci∣cero * 1.800 makes it to consist of six legions and the Auxiliaries. Polybius saith, the
Roman Army for the most part did con∣tain sixteen thousand of Romans, twen•…•… of aids. But a less number also may 〈◊〉〈◊〉 up the greatness of that name. For Ul•…•…∣na saith, he is leader of an Army, wh•…•… * 1.801 commands but one Legion with the aids: that is, as Vegetius expounds it, ten thou∣sand foot, two thousand horse. And L•…•…y sets down a kind of just army of eight thousand. In like sort must we judge of a Navy. So, a Fort † 1.802 is a place which can keep off the hostile forces for a time.
COnjectures are usually taken from the matter, and the effect. From the * 1.803 matter: as the word day, if thirty days truce be agreed on, ought not to be un∣derstood of natural days, but of Civil: for that is congruous to the matter. So the word donare, to give, is taken for to transact, according to the quality of the business. So the word arms, which some∣times signifies instruments of war, some∣times armed Soldiers, with respect to the matter, is to be interpreted for this, or that. So he that hath promised to render men, ought to render them alive, not dead; contrary to the cavill of the Platae∣ans. And they that are commanded fer∣rum deponere, satisfy the command in putting off their swords, though not their
steel buttons; upon which Pericles je∣sted. And to march away freely out of Town, must be understood so, that the way also may be secured: contrary to what was done by Alexander. And half the ships in the division, must be understood of whole ships, not cut a sunder: contrary to what the Romans did to Antiochus. Of the like matters we may make the same judgment. From the effect we make con∣jecture, * 1.804 if the word taken in the more re∣ceived use draw after it any thing against reason. For, in an ambiguous word, that * 1.805 interpretation is rather to be received, which hath no hurt in't. Wherefore that cavillation of Brasidas is not to be admit∣ted: * 1.806 who having promised he would de∣part out of the Boeotian fields, denyed the fields he possessed with his Army, to be∣long to the Boeotians: as if the word were meant, not of their ancient bounds, but of warly possession: in which sense 'twere a vain agreement.
MAny words have several significa∣tions, one more strict, another more large: which proceeds from many reasons; either because the gene∣ral name adheres to one of the species, as in words of cognation and adoption; al∣so in Nouns masculin, which are taken
for the common too, where common are wanting; or because the use of ar•…•…is wi∣der than popular use; as deatb, * 1.807 in the Civil Law is enlarged to signify deporta∣tion, when among the people it signifies otherwise. Moreover, we must note, that things promised, some are favorable, some odious, some mixt, or of a middle nature. Favorable are those which have in them∣selves equality, and which regard com∣mon utility; the greater this is, and more extended, so much greater is the favour of the promise; as of things which make for peace, than of those which make for War; and of War Defensive, than upon other causes. Odious are such as burden one part only, or one more than the o∣ther, and such as contein in them punish∣ment, and make acts void, and bring in a change of what was before. That which is mixt, as bringing a change, but for peace sake, proportionally to the good, or the change will be esteemed sometime favou∣rable, sometime odious, yet, so that caete∣ris paribus favour is to be preferred. Upon * 1.808 these grounds these Rules are to be kept. In things not odius, the words are to be taken according to the full propriety of popular use, and if there be more signifi∣cations, the largest is best; viz. the Mas∣culin is to be taken for the Common Gen∣der, and an indefinit speech for an u∣niversal. So these words, unde quis de∣jectus est, whence one is dispossest, will
pertain also to the restoring of him, who by force is prohibited to come into his own. For the word taken more largely bears that signification, as Cicero disputes * 1.809 for A. Caecina. In the more favorable, if the speaker understand the Law, or use the Counsel of Lawyers, the words are to be taken more largely, that they may also include the signification of Art, or which the Law hath given. But we must not recur † 1.810 to significations plainly im∣proper, unless otherwise some absurdity or inutility of the Agreement would follow. * 1.811 On the other side, words are to be taken, even more strictly, than propriety suffers, if it be necessary for the avoiding of ini∣quity or absurdity: but, if there be not such necessity, but manifest equity or uti∣lity in the restriction, we must stay within the narrowest bounds of propriety, unless the circumstances disswade. But in odious things, even a figurative speech is admit∣ted, whereby the odium or burthen may be shunned. Therefore in donation and remission of ones right, words, though general, are wont to be restrained unto those things which were probably thought upon. And in this kind of things, that will be sometime understood to be occupied, which, it is hoped, may be reteined. So, aids promised from one part only, will be * 1.812 understood to be due at the charges of him who shal require them.
IT is an illustrious question, Whether in name of the Confederates are meant only those that were so in the time of making the league, or also those that be∣come so afterward: as in the league made between the people of Rome and Car∣thage after the war about Sicily; The * 1.813 Confederates of either people shall be secu∣red from them both. Hence the Romans inferred, although the Agreement made with Asdrubal, of not passing the river Iberus, profited them nothing, because the Carthaginians had not confirmed it; yet, if the Carthaginians did approve the fact of Annibal setting upon the Sagun∣tines, whom the Romans, after the league, had taken to them as Confederates, that then war might be proclam'd against them, as Violators of the League. Livy thus declares the Reasons: The Sagun∣tines * 1.814 were sufficiently provided for, the Confederates of both parties being excep∣ted: For it was not added, Confederates that then were, nor that none afterward should * 1.815 be assumed. Now, sith it was lawfull to assume new Confederates, who would think it equity; either that any should be receiv'd into friendship upon no desert, or being receiv'd should not be defen∣ded:
Only it was provided, that the fel∣lows of the Carthaginians should neither be tempted to revolt, nor be entertained revolting of their own accord. Which words are almost all translated out of Po∣lybius. What shall we say in this case? * 1.816 It cannot be denyed, but the word Con∣federates, without any violence, may re∣ceive both the strict signification of them who were so in the time of the League, and the other more large which includes the future too. Wherefore we must see, by the former rules, which interpretation is to be preferr'd: according to which rules we say, the future are not comprehended; because the question is about rupture of the league, which is an odious matter; and about depriving the Carthaginians of their Liberty, to use force of arms against such as were believed to have done them injury: which liberty is natural, nor is it suppos'd easily quitted † 1.817. Was it not lawfull then, for the Romans to take the Saguntines into society, or to defend them being admitted? Surely it was, not by vertue of the League, but by natural right, which by the League was not re∣nounced: so that the Saguntines were, in respect of Both, in the same condition, as if nothing had been agreed concerning
their Confederates. In which case, neith•…•… were the Carthaginians violators of the League, if they did war upon the Sagun∣tines, when they judged it to be just; no•…•… the Romans, if they did defend them. Plainly, as in the time Pyrrhus, it was agreed 'twixt the Carthaginian and the * 1.818 Roman, that if either of them entred League with Pyrrhus, he should so do it, saving the right of sending aids to him, whom Pyrrhus should invade. I do not say, that war could have been just on both sides; but I say this perteined not to the violation of the League † 1.819. So doth Polybius, in the question touching aid sent by the Romans to the Mamertins, distinguish the Querees, Whether it were just, and, Whether it were lawfull by the League.
THe former example was in an equal League, we will set down another in an unequal: if it were agreed, that one should not wage war without consent of the other Confederate. This was an ar∣ticle in the League of the Romans and Car∣thaginians, * 1.820 after the second Punic war:
and likewise in that of the Macedonians, with the Romans, before the reign of Per∣seus. Whereas the word Warring, may both signify all war, and peculiarly that which is offensive; here we shal take the narrower signification, that liberty may not be too much restrained. Of the same kind it is, that the Romans promised, That Carthage shall be free † 1.821: Which, although, by the nature of the act, it could not be under∣stood of the fullest power (for they had afore let go the right of undertaking war and some other things) yet did it leave them some liberty, and at least so much, that they were not bound, at anothers command, to change the seat of their Ci∣ty. In vain therefore did the Romans urge the word Carthage, saying the mul∣titude of Citizens, not the City, were thereby signified (which, though impro∣per, may be granted, by reason of the at∣tribute, which is more meet for the Citi∣zens than the City:) For, in the word, free (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Appian speaks) there was a manifest fallacy.
IT is also a frequent question, pertinent here, concerning Agreements perso∣nal and real. And truly, if the Treaty was with a free people, no doubt but what was, is promised them, is in its own na∣ture
real, because the subject is a perma∣nent matter. Yea, though the state of a Commonwealth be chang'd into a King∣dom, the League will remain, because the body remains the same, though the head being chang'd: and, as we have said a∣bove, the Empire which is exercis'd by a King, ceaseth not to be the empire of the people. An exception it will be, if the cause appear to have been proper to that state, as, if free Cities contract a League to maintain their liberty. But, if it be contracted with a King, the League will not presently be esteemed personal: for, as it is rightly said by Pedius and Ulpianus, * 1.822 the person is for the most part inserted in∣to the Agreement, not that the Agree∣ment may be personal, but to shew with whom 'tis made. But if it be added to the League, that it shall be perpetual, or that it is made for the good of the King∣dom, or with himself and his successors (such an addition 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 is usual, saith Libanius in his Oration for Demo∣sthenes:) or for a time defined, now it appears plainly to be real. Such, it seems, was the league of the Romans with Phi∣lip * 1.823 King of Maccdon, which when Per∣seus his son denyed to concern him, a war followed upon that ground. Moreover, other words, and the matter it self some∣times, will afford a conjecture not im∣probable. But if the conjectures be equal on both sides, it will remain, that the fa∣vourable
be accounted real, the odious personal. Leagues made for peace, or for commerce are favourable: those made for war, are not all odious, as some think; but the * 1.824 defensive have more of favour, the * 1.825 offensive of burthen. Add hereunto, that in a league for any war, it is presumed, that regard is had to the prudence and piety of him who is treated with, as one who seemed not likely to undertake a war, neither unjustly, nor yet rashly. As to that saying, Societies are * 1.826 broken off by death, I do not allege it here: for it perteins to private societies, and to the Civil Law. Therefore, whether by right or wrong, the Fidenates * 1.827, La∣tins † 1.828, Etruscians, Sabins departed from their league upon the death of Romulus, Tullus, Ancus, Priscus, Servius, can∣not be rightly judged by us, because the words of the League are not extant. Wher∣unto that controversy in Justin is not unlike, Whether Cities which were tri∣butary to the Medes, the Empire being changed, had changed their condition. For, it is to be considered, whether in the agreement they had committed them∣selves
to the trust of the Medes. But 〈◊〉〈◊〉 Bodin's * 1.829 argument is in no wise to be al∣lowed, that leagues do not pass to the successors of Kings, because the vertue of an oath goes not beyond the person. For, the obligation of an oath may bind the person only, and yet the promise it self may oblige the heir. Neither is it true, which he assumes, that leagues depend upon the oath as their firmament, when for the most part there is efficacy enough in the promise it self, to which, for Reli∣gion sake, the oath is added. The com∣mons of Rome, in the Consulship of P. Valerius, had sworn, they would come together at command of the Consul. L. Quintius Cincinnatus succeeds him being dead; Some Tribunes cavill, as if the people were not bound by their oath. Li∣vie's Judgment follows: That neglect of the Gods, which this age is guilty of, was * 1.830 not yet: nor did every one, by interpre∣ting for himself, make his oath and the Laws comply with his affections, but ra∣ther accommodated his own manners un∣to them.
CErtainly, a League made with a King remains, although the same King, or
his succor, be driven out of his Kingdom by his Subjects. For, the right of the Kingdom remains with him, however he hath lost the possession † 1.831. On the contra∣ry, if the Invader of anothers Kingdom, the rightfull King being willing; or the Oppressor of a Free people, before he hath gotten sufficient consent of the peo∣ple, be assalted by war; nothing will there∣by be done against the league: because those have possession, they have not right * 1.832. And this is that which T. Quin∣tius said to Nabis: We have made no friendship nor society with thee, but with † 1.833 Pelops the just and lawfull King of the Lacedemonians. These qualities of King, successor, and the like, in leagues, do properly signify a right; and the Inva∣ders cause is odious.
CHrysippus, of old, had handled this question, whether the reward pro∣mised to him, who came first to the mark, be due to both, if they came together, or to neither of them. And truly, the word first is ambiguous * 1.834, for it signifies, either
him who goes before all, or him whom no man goes before. But because the rewards of vertues are favourable, it is the 〈◊〉〈◊〉 answer, that Both concur to the reward: though * 1.835 Scipio, Caesar, Julian, dealt more liberally, and gave full rewards to them that ascended the walls together.
KIngs and Magistrats are responsible for their neglect, who do not use the remedies, which they can and ought, for the restraint of robbery and piracy: upon which score the Scyrians were an∣tiently * 1.836 condemnd by the Amphyctiones. I remember a question was propos'd upon the fact, when the Rulers of our Coun∣try had, by their letters, given very many power of taking prizes from the enemy at Sea, and some of them had spoyled our friends, and their countrey being forsaken wandred about, and would not return when they were recalled; whether the Rulers were faulty upon that account, either because they used the service of naughty men, or because they had not re∣quired of them caution. I gave my opini∣on, that they were bound no farther, than to punish, or yield the offenders if they could be found; and to take care, that legal reparation might be made out of the goods of the Robbers. For, they were not
the cause of the unjust spoil that was made, nor were partakers of it in any wise: yea, they forbad, by their Laws, any hurt to be done their friends. That they should require caution, they were obliged by no Law, seeing they might, even without letters, give all their sublects power to spoil the enemy: which was also done of old. Nor was such a permis∣sion any cause, why damage was done to their friends, when even private men might without such permission send forth ships of war. Moreover, it could not be foreseen, whether they would prove evill men: and besides, it cannot be avoided, but we must imploy such, otherwise no Army can be raised. Neither are Kings to be accused, if their soldiers, either by land or sea, wrong their confederates contrary to their command, as appears by the te∣stimonies * 1.837 of France and England. Now, that any one, without any fault of his own, should be engaged by the fact of his Ministers, is not a point of the Law of Nations (by which this controversy is to be judged) but of the Civil Law, nor this general, but introduc'd upon pecu∣liar reasons against seafaring men and some others. And on this side, sentence was given, by the Judges of the supreme Auditory, against certain Pomeranians, and that after the example of things iud∣ged, in a case not unlike, two Ages be∣fore.
AMong the Obligations which that Law of Nations, which we call vo∣luntary, hath by it self introduced, a prin∣cipal head is of the right of Embassages. For we frequently read of the sacred pri∣vileges of Embassages, the sanctimony of Embassadors, the right of Nations, right divine and human due unto them, and many such like expressions. † 1.838 Cicero de Haruspicum responsis: My judgment is, that the right of Embassadors is secured both by the safeguard of men, and also by the protection of Law divine. Therefore to violate this, is not only unjust, but im∣pious too, by the confession of all, saith Philip in his epistle to the Athenians.
HEre we must know, whatever this right of Nations be, it pertains to those Legats, which are sent from supreme Rulers, by one to another. For, besides them, Provincial Legats, and Municipal,
and others are directed, not by the Law of Nations, which is between one Nation and another, but by the Civil Law. An Embassador in Livy calls himself the pub∣like messenger of the Roman people. In * 1.839 the same Livy elswhere the Roman Senat * 1.840 saith, The right of Legation was provided for a foreiner, not a Citizen. And Cicero, that he may shew, Legats are not to be sent to Antonius, saith, For we have not to do with Annibal an enemy of the Com∣monwealth, but with one of our own Coun∣try. Who are to be accounted foreiners Virgil hath so expressed, that none of the Lawyers can more clearly:
That I suppose a forein Land, Which is not under our Command.They then that are joind in an unequal * 1.841 league, because they cease not to be in their own power, have a right of Legation: and these also, who are partly subject, part∣ly not, for that part wherein they are not subject. But Kings, conquerd in a solemn war, and deprived of their Kingdom, with other Royalties, have loft also the right of Legation. Therefore did P. Aemilius detein the Heralds of Perseus whom he had conquer'd. Yet, in Civil wars, ne∣cessity sometimes, maketh place for this right, beside the rule; as, when the peo∣ple is so divided * 1.842 into equal parts, that it is doubtfull on which side the right of
Empyre lyeth: or, when the right being much controverted, two contend about succession into the Throne. For in this case, one Nation is for the time reckoned as two. So, Tacitus † 1.843 charged the Fla∣vians, that, in the Civil rage, they had violated, in respect of the Vitellians, that right of Legats, which is sacred even a∣mongst forein Nations. Pirats and Rob∣bers, that make not a Society, cannot have any succour from the Law of Nati∣ons. Tiberius, when Tacfarinas had sene Legats to him, was displeas'd that a trai∣tour and plunderer us'd the manner of an enemy, as * 1.844 Tacitus hath it. Nevertheless sometimes such men, faith being given them, obtain the right of Legation, as once the Fugitives in the Pyrenean Fo∣rest.
TWo things there are concerning Em∣bassadors, which we see commonly re∣ferrd to the Law of Nations: first, that they be admitted † 1.845; next, that they be not violated. Of the former is a place in Livy, where Hanno a Carthaginian Se∣nator inveighs against Annibal thus: Em∣bassadors coming from our Confederates, and on their behalf, our good General ad∣mitted not into his camp: but took away the right of Nations. Which yet is not to
be understood too crudely: for the Law of Nations commandeth not * 1.846 that all be admitted, but forbiddeth them to be reje∣cted without cause. There may be cause from him that sendeth, from him that is sent, from that for which he is sent. Mele∣sippus * 1.847 Embassador of the Lacedemonians, by the Counsel of Pericles, was dismist out of the bounds of Attica, because he came from an armed enemy. So the Ro∣man Senate † 1.848 said they could not admit * 1.849 the Embassage of the Carthaginians whose Army was in Italy. The Achaians ad∣mitted not the Embassadors of Perseus raising war against the Romans. So Justi∣nian rejected the Embassy of Totilas, and the Goths at Urbin the Orators of Belisa∣rius, And Polybius relates how the mes∣sengers * 1.850 of the Cynethenses being a wicked people were every where repulsed. An example of the second we have in Theo∣dorus call'd the Atheist, to whom, when he was sent unto him from Ptolomaeus, Lisimachus would not give audience: and the like hath befallen others, because of some peculiar hatred. The third hath place where the cause of sending, either is suspected * 1.851, as that of Rabshake the Assy∣rian to disturb the people was justly suspe∣cted by Hezekia; or not honourable, or unseasonable. So the Etolians were war∣ned by the Romans, that they should send no Embassy without permission of the General: Perseus, that he should not
send to Rome, but to Licinius: and the * 1.852 Messenges of Iugurtha were commanded to depart Italy † 1.853 within ten days, except their comming were to deliver up the Kingdom, and the King. As for those assiduous Legations which are now it use, they may with very good right be reje∣cted; for the no-cessity of them appears by the ancient custom, whereto they are unknown.
OF not violating * 1.854 Embassadors, is a more difficult question, and va∣riously handled by the most excellent wits of this Age. And first we must consider of the persons of Embassadors, then of their Train and their Goods. Of their persons some think thus, that, by the Law of Nations, onely unjust force is kept from the bodyes of Embassadors; for they con∣ceive priviledges are to be understood by Common right. Others think, force may not be offerd to an Embassador, for every cause, but on this ground, if the Law of Nations be broken by him; which is a very large ground: for, in the Law of Na∣tions the Law of Nature is included, so that the Embassador may now be punisht for all faults, except those which arise meerly out of the Civil Law. Others, restrain this to those Crimes which are
done against the State of the Common∣wealth, or his Dignity, to whom the Em∣bassador is sent. Which also some hold perillous, and would have complaint made to him that sent him, and the Em∣bassador left to his Master's judgment. There are some too that say, the Kings or Nations unconcerned are to be consulted with: which indeed may be a point of prudence, cannot be of right. The rea∣sons which every one brings for his opi∣nion conclude nothing definitely: because this right, not, like natural right, certain∣ly ariseth out of certain reason, but is de∣termined by the will of Nations. Now, it was in the power of Nations, either ab∣solutely to provide for the safety of Em∣bassadors, or with certain exceptions; for on this side may be alleged the utility of punishing great offenders, and on the o∣ther side the utility of Embassages, the fa∣cility whereof is best promoted by secu∣ring them as much as may be. We must therefore see, how far Nations have con∣sented; which cannot be evinced by ex∣amples only; for many are extant on both sides. Wherefore we must have re∣course both unto the judgments of wise men, and unto conjectures. Two judg∣ments I have most illustrious; one of Li∣vy, another of Sallust. Livy, if the Em∣bassadors * 1.855 of Tarquin, who had raised trea∣son at Rome, saith: Although they see∣med to have committed that, for which
they ought to be in the place of enemies, yet the right of Nations prevailed. We see here the right of nations extended even to them that do hostility. The saying of Sallust pertains to the Embassadors train, of whom we shall speak anon, not to the Embassadors themselves: but the Argument will proceed rightly à majori ad minus, that is, from a thing less cre∣dible to that which is more. He saith: Bo∣milcar the Companion of him, who came to * 1.856 Rome on the publick faith, is made guilty rather according to rules of equity, than by the Law of Nations. Equity, that is, the meer Law of Nature suffers punish∣ment to be exacted, where is found a de∣linquent; but the Law of Nations excep∣teth Embassadors and such like, who come upon publick faith. Wherefore, that Embassadors be made guilty, is against the Law of Nations, whereby many things are wont to be prohibited, which, by the Law of Nature, are permitted, Conjecture also goes on this side; for it is more true, that privileges should be so understood, that they may give somewhat beyond Common right. Now, if Embas∣sadors be only secur'd from unjust vio∣lence, therein were no great matter, no∣thing of preeminence. Add, that the se∣curity of Embassadors outweighs the uti∣lity arising from punishment. For pu∣nishment may be taken by him, that sent the Embassador, being willing: and if
he be unwilling, it may by man be exa∣cted of him, as an approver of the crime. Some object, better one be punisht than many involv'd in war. But, if he that sent the Embassador approve his deed, the Embassadors punishment will not free us from the war. Now on the other side, the safety of Embassadors is in a slippry place, if they ought to render a reason of their actions to any other, but him by whom they are sent. For, when the Counsells of them that send and receive Embassa∣dors are for the most part divers, often contrary, it can scarce happen but al∣ways somewhat may be said against an Embassador, that may bear a shew of a crime. And though some are so manifest, that they have no doubt, yet is a gene∣ral danger sufficient for the equity and utility of a general Law. Wherefore my opinion clearly is, that it pleas'd the Nations, that the Common custom, which subjecteth every one being in a strange land to the Law of that land, should ad∣mit an exception in Embassadors, 1. That, as they are accounted, by a certain ficti∣on, for the persons of their Masters (He brought with him a face of the Senate, the authority of the Commonwealth, saith Tul∣ly of an Embassador:) so also, by the * 1.857 like fiction, they should be set as it were without the compass of the land: where∣upon, they are not bound by the Civil Law of that people amongst whom they
live. Wherefore if the offense be such one as may seem possible to be contem∣ned, it is either to be dissembled, or else the Embassador is to be commanded to depart † 1.858 the Country. Which, Polybius saith, was done to him, who had given cause to the Hostages at Rome to escape away, And hence, on the by, we may learn the reason, why, at another time, the Embassador of the Tarentines, for the same offense, was beaten with rods; name∣ly, because the Tarentines being conquerd begun to be under * 1.859 the Romans. If the crime be cruel, and publickly mischie∣vous, the Embassador must be sent † 1.860 to his Master, with a request, that he would punish him, or give him up, as we read, the Galls required, the Fabii should be deliverd to them. But, that which we have said afore, that all human Laws are so temperd, that they bind not in extreme necessity, hath place also here, about the Precept of the sanctimony of Embassa∣dors. Indeed, that hight of necessity is not in the taking of punishment, which also in other cases is taken away by the Law of Nations, as we shall shew here∣after: much less in the place, time and manner of taking punishment, but in the precaution of a great mischief, especially publick. Wherefore that an imminent danger may be withstood, if there be no other remedy, Embassadors may be both apprehended and examined. So the Ro∣man
Consuls apprehended * 1.861 the Embas∣sadors of Tarquin: especiall care being had of their † 1.862 letters, as Livy speaks, that they might not be lost. But, if an Embassador use force of Arms, he may be slain, no doubt: not by way of punishment, but by way of Naturall defense. So might the Galls kill the Fabii, whom Livy stiles vio∣laters of human Law. Therefore in Euri∣pides, Demophon, when the Herald sent by Euristheus endeavour'd to cary away the suppliants by force, apposeth him by force, and when he said,
Dare you strike me a Herald sent? Answers, Yes, if you be violent.
His name was * 1.863 Copreus, and because he proceeded † 1.864 violently and used force, he was slain by the Athenians, as Philostra∣stratus relates in the life of Herod. By a distinction not unlike to this, Cicero re∣solves that question, Whether the son ought to accuse the father being a traytor to his Countrey. For he will have it to be his duty * 1.865, to avert an imminent danger, but not for punishment of the fact, when the danger is past.
THat Law, which I have mentiond, of not offring force to Embassadors, is to be conceiv'd obligatory to him, unto whom the Embassy is sent; and so too, if he hath admitted it: there being after that time, as it were, a tacit Covenant between them. Nevertheless, it may, and is wont to be denounced, that Embassa∣dors be not sent; if they be, they shall be taken for enemies: as it was denounced to the Etolians by the Romans, and of * 1.866 old by the Romans to the Veientes it was proclamed, unless they would get them out of the City they should give what Lars Tolumnius gave: and to the Ro∣mans * 1.867 by the Samnites, if they did come to any Council in Samnium, they should not go away inviolate. Wherefore this Law doth not pertain to them through whose bounds Embassadors pass without leave; for, if they go to their enemies * 1.868, or come from their enemies, or otherwise make any hostile attempt, they may even
be slain: which the Athenians did to the Embassadors between the Persians and Spartans; the Illyrians to the Embas∣sadors between the Essians and Romans † 1.869; and much more may they be bound, which Xenophon * 1.870 orderd against some, Alexan∣der against them that were sent to Darius from Thebes and Lacedemon, the Ro∣mans against the Embassadors of Philip † 1.871 to Anmbal, and the Latins, against the Embassadors of the Volsci. If there be no such provocation, and Embassadors be ill used, not that law of Nations † 1.872, whereof we treat, but the friendship, and the Ho∣nour, either of him that sent, or of him to whom they go, will be judged violate. Justin of the latter Philip King of Ma∣cedon: Afterward he sent his Embassador with letters to Annibal, to join in league with him: The Embassador being taken and brought to the (Roman) Senate was sent away safe, not in honour to the King, but lest he should be made a certain enemy, that hitherto was dubious.
BUt an Embassy admitted, even with enemies † 1.873 in Arms, much more with enemyes not in actuall hostility, hath the safeguard of the Law of Nations. Diodo∣rus Siculus said, Heralds have peace in the time of War. The Lacedemonians, who had slain the Heralds of the Persians, are said thereby to have confounded the rights of all men. Livy saith, Embassa∣dors being brought into danger, there was not left so much as the Law of War. Cur∣tius: He sent Messengers to compell them unto peace, whom the Tyrians, against the Law of Nations, killed, and threw into the Sea. Justly is it said: for in war also many things fall out, which cannot be transacted but by Embassadors, and peace it self can hardly be made, and differences reconciled, but by their Mediation.
THis is a question too, Whether by the right of rendring like for like an Em∣bassador may be slain, or ill used, coming from him that hath done so. And truly there are in Histories examples enough of such revenge; but histories, we know, relate not only things done justly, but those things also that are done unjustly, angrily, impotently. The Law of Nati∣ons provides not only for the dignity of him that sends, but for the security of him that is sent: Wherefore there is a tacit contract with him also; and wrong is done to him, though none is done to his Master. Wherefore Scipio did not only magnanimously, but according to the Law of Nations, who, after the Embassa∣dors of the Romans were ill entreated by Carthaginians, the Embassadors of the Carthaginians being brought unto him, and being asked what ought to be done, answered, not as the Carthaginians have done † 1.874. Livy * 1.875 addes, he said, He would do
nothing unworthy of the manners of the Ro∣man people. Valerius Maximus puts the like words, but more antient, into the mouth of the Roman Consuls on a like occasion: Hanno, the integrity of our City quits thee of that fear; For then too, against the right of Legation, Cornelius Asina was cast into chaines by the Car∣thaginians.
THe Companions also and the Goods of Embassadors have in their proportion a kind of sanctimony. Whence it was in the old form of the Heralds, O King, * 1.876 do you make me a Royal messenger of the Roman people? do you privilege my com∣panions and my Goods? And by the Ju∣lian Law de vi publica they are pronoun∣ced guilty, not only that have wronged Embassadors, but their attendants too. But these are sacred accessorily, and so far * 1.877 as it seems good to the Embassador. Wher∣fore if his Attendants have greatly offen∣ded, they may be demanded of him, that he may yield them: For they are not to * 1.878 be drawn from him by force. When this was done by the Achaians against some Lacedemonians, that were with the Ro∣man Embassadors, the Romans cryed out, the Law of Nations was broken. Whither
may be also referred the judgment of Sal∣lust concerning Bomilcar, which we made use of above. But if the Embassador will not yield them, the same course is to be taken, which before we said about the Embassadors own offense. Now, whether an Embassador hath jurisdiction over his own family, and whether his house be a sanctuary * 1.879 for all that fly unto it, de∣pends upon the concession of him with whom he resides. For this belongs not to the Law of Nations. That the movable Goods also of the Embassador, which are accounted an accession to his person, can∣not be seised on, neither as a pledge, nor for payment of a debt, nor by order of judgment, nor (which some allow) by the Kings hand, is the truer opinion. For all coaction ought to be far from an Em∣bassador, as well that which toucheth his necessaries, as his person, that he may have full security. If therefore he hath contracted any debt, and (as it is) pos∣sess no immovables in that place, He is to be calld upon kindly, and if he refuse, his Master; so that at last that course may be taken with him, which is usual against debters in another territory. Nor is it to be feared, which some think, lest, if this be so, none will be found to contract or deal with an Embassador: For even Kings, who cannot be compell'd, want not creditors; and among some Nations it was a custome, saith Nicolaus Damas∣cenus,
that contracts which were gone into trust should bear no action, no more than ingratitude: so that men were con∣strained either to fulfill the contract pre∣sently, or be content with the naked faith of the debter. And Seneca wi∣sheth all the world were in this conditi∣on: Would we could perswade men to re∣ceive * 1.880 mony lent, only from those that pay it willingly; would no stipulation did bind the buyer to the seller, nor sealed bonds and indentures were laid up. Faith should rather keep those agreements, and a mind studious of right. Appian also saith, it * 1.881 displeased the Persians, to owe money, be∣ing a thing obnoxious to deceit and lying. Aelian † 1.882 saith the same of the Indians. With whom Strabo * 1.883 agrees in these words: They have no judgments but a∣bout slaughter and injury; because a man cannot help it, but he may fall into these: But contracts are in every ones power; wherefore one must bear with it, if a man break his word, and consider afore hand whom one trusts, and not fill the Common∣wealth with Law-suits. And it was a con∣stitution * 1.884 of Charondas, that none should commence an action, who had tru∣sted another with the price of his commo∣dity: which also pleased Plato. And it is noted by Aristotle, that some have no * 1.885 tryalls about these matter: for they think men ought to be content with the faith * 1.886 which they have taken. And elsewhere, In
some places the Laws permit no action for what is trusted, as if he were onely to be dealt with privately, with whom one hath contracted, and taken his word. The ob∣jections brought against this opinion out of the Roman Law, concern not our Em∣bassadors, but those that are provincial or municipal.
PRophane Histories † 1.887 are full of wars undertaken because of wrong done to Embassadors. And in the sacred * 1.888 story is exstant the memory of the war which David upon that ground waged against the Ammonites. Nor doth Cicero esteem any cause more just against Mithridates.
BY the Law of Nations, which hath its rise from their will, sepulture is also due to the bodies of the dead. Dion Chrysostom, amongst manners or customs, which he opposeth to written Law, after the rights of Embassadors, mentions, not to forbid
dead men to be buried. And Seneca the father, among unwritten Laws, but mo•…•… certain than all written ones, sets down this, to bestow earth upon the dead. The Hebrews, Phila and Josephus, call this the Law of nature † 1.889; as it is usual, un∣der the Name of Nature, to comprehend common customes agreeable to natural reason. He that hinders burial, puts off man, saith Claudian; gives an affront to nature, saith Leo the Emperor; is an ene∣my to piety, saith Isidore Pelusiot. And because these rights common to Civil men, that they might seem the more sa∣cred, were by the Antients referd unto the Gods, we see this right as well as that of Legation frequently ascribed to them. Therfore you shal find it in Sophocles cal∣led 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a Law of the Gods. Iso∣crates * 1.890 speaking of the war of Theseus a∣gainst Creon, saith, Who knows not what all success Adnastus had before Thebes, where attempting to restore the son of Oedipus, his son-in-Law, he lost very many Argives, and saw their leaders slain: And himself surviving with dishonour, when he could not obtain leave to bury the slain, went to Athens with a petition to Theseus the King, that he would not suffer such men to lye unburied, nor the old custome to be despised, and the right of all men violated, being established not so much by human nature as by divine power: Theseus hear∣ing this, decrces to send to Thebes without
delay? A little after the same Author re∣prehends the Thebans * 1.891, that they pre∣ferred the Statutes of their own City be∣fore Lawes Divine: and he mentions the same history in other places † 1.892. So do others. And frequently in good Authors we see eminent titles of vertue ascribed to this office. For Cicero and Lactantius call it humanity, Ualerius Maximus huma∣nity and mildness, Quintilian mercy and and Religion, Seneca mercy and humani∣ty, Philo compassion of human nature, Ulpian mercy and piety, Modestinus the memory of human frailty, Capitolinus Clemency, Euripides and Lactantius ju∣stice, Prudentius a gracious work. On the contrary, the Donatists, who forbad the bodies of the Catholicks to be buried, are accus'd of impiety by Optatus: Spartia∣nus saith, such are without reverence of humanity; Livius calls it cruelty beyond belief of human anger; and Lactantius saith, it is wicked wit in them that made sepulture to be a vain and superfluous thing † 1.893.
WHat was the first cause of this cu∣stome of interring bodies, whe∣ther enbalmed before, as among the E∣gyptians, or burnt, as among most of the Grecians, or so as they are, which Cicero notes to be most the antient way, and after him Pliny * 1.894, of this all have not the same opinion. For Moschion thinks the occasion was given from the gigantick fe∣rity in eating men, the abolition whereof is signified by Sepulture † 1.895.
Others think, men did in this manner, as it were of their own accord, pay the debt, which otherwise nature requireth of them even against their will. For, that the body of man made of earth is due to the earth † 1.896, not only God declared to
Adam, but also the Greeks & Latins fre∣quently acknowledge. Cicero out of Euri∣pides: Earth is to be rendred to the earth. And the same Euripides hath elswhere more fully exprest what we read in Solo∣mon * 1.897, The body returns to the earth, from whence it came, and the soul to God that gave it. Pliny hath also written, that the earth entertains us at our birth, feeds us being born, and all along our life su∣steins us, and last of all, when we are abdicated by the rest of nature, she like a gentle mother em∣braces us in her lap and covers us. There are some that hold, the hope of resurrection, as it were by this monument, was consignd to poste∣rity by the first parents of mankind. For, that Democritus also taught, Bodies are to be conserved because of a promise of re∣turning to life, Pliny witnesseth. And Christians oft refer the rite of decent bu∣rial to this hope, Prudentius * 1.898.
Why do Marbles cover dust, And Monuments our bodies keep? Because the thing they have in trust, Is not dead, but laid to sleep.
The more plain and simple opinion is, whereas man excells other living crea∣tures, it seemed an unworthy thing, that other animals should be fed with his bo∣dy, for the preventing whereof, as much as might be, sepulture was invented. By the pity of men bodies are kept from the invasion of souls and wild beasts † 1.899, said Quintilian. And Cicero, Vexed by wild boasts, he wanted the common honour in his death.
God in the Prophets, threatneth the Kings he hates, that they should have the burial of an Asse, that dogs should lick their blood. Nor doth Lactantius consider any thing els in burial, when he saith, We will not suffer the Image and work of God to ly a prey for beasts and birds; And Ambrose his words are these, You can do no better office for him, who is now past requiting of you: save him from the fouls of the air, save from the beasts a partaker of the same nature. But, though such injuries were not, yet for the body of man to be trod under foot, and broken, seems very unbecoming the dignity of his kind. That in Sopater's controversies is to our purpose: It is a comely thing to bury the dead, and by nature it self appoin∣ted unto bodies, lest they be vilified after death if they putrify naked. All the Gods are pleased to indulge this honour to bodies deprived of life. For, because it is unrea∣sonable, the secrets of human nature should be exposed after death to the sight of all, we have received a custome of old, to Inter human bodies, that being laid up in their sepulchers they may conceal their rotteness. To the same purpose is that of Gregory Nyssen, That the Sun may not see what is shamefull † 1.900 to human nature. Hence it is,
that the office of burying is said to be per∣formed, not so much to the person, as the na∣ture, [Non tam homini, quam humanitati:] whence Seneca and Quintilian called it publick humanity, Petronius tralatitious. Whereunto this is Consequent, that Bu∣rial must not be envyed, neither to our own, nor our Countreyes enemies. Of private enemies, excellent is that disserta∣tion of Ulysses in Sophocles for the burial of Ajax, where we have this among the rest to Menelaus:
After so many wise words said, Beware you do not wrong the dead.Euripides † 1.901 gives the reason in his An∣tigone,
Mens quarels dy with their last breath: For what revenge is after death?And Optatus Milevitanus renders the same cause: If you had any difference li∣ving, let the other's death kill your hatred. He is now silent, with whom you quar∣rell'd.
WHerefore also to publick enemies, all men think Burial to be due † 1.902. Enemies do not envy burial, saith Tacitus: and Dio Chrysostomus having said, this is a Law observ'd among enemies in war, addeth, although their hate hath procee∣ded to the highest degree. Sopater above cited: What war hath deprived mankind of this last honour? What enmity hath so far extended the memory of evil deeds, as to dare violate this Law? Dio Chrysostom cited a little afore, in his Oration of Law: By this, no man judgeth dead men ene∣mies, nor is anger and disgrace extended to their bodyes. And examples are every where * 1.903 extant. So Hercules sought his enemies, Alexander those slain at Issus, Hannibal sought C. Flaminius, P. Aemi∣lius, Tib. Gracchus, Marcellus † 1.904, Romans, to bury them. The same was done by the Romans for Hanno, for Mithridates by Pompey, by Demetrius for many, for King Archelaus by Antonius. It was in the oath of the Greeks warring against the Persians: I will bury all my fellows, being victorious, I will bury the Barba∣rians
too: and frequently in histories you may read of leave obtained to carry off the dead. We have an example in Pau∣sanias: The Athenians say, they had bu∣ried * 1.905 the Medes, because it was their Re∣ligion to Interr all the dead, whatsoever they were. Wherefore, by the interpre∣tation of the antient Hebrews, the High Priest, when otherwise he was forbidden to be present at any funeral, was com∣manded nevertheless to put into the earth * 1.906 a man found unburied. But Christians so much esteemed sepulture, that for this, as well as to feed the poor, or to redeem captives, they thought even the consecra∣ted Vessels of the Church might be lawful∣ly coined or sold. There are indeed exam∣ples also to the contrary, but condemned by common judgment † 1.907.
COncerning these, I see there are causes of doubting. The divino Law given to the Hebrews, the mistress, as of every vertue, so of humanity too, commands
that they which were hanged on a tree (which was esteemed very * 1.908 ignomi∣nious) should be buried the same day. Hence Josephus saith, The Jews have such care of sepulture, that they take down the bodies condemned to publick execution, before Sun-set, and commit them to the earth: and other Hebrew interpreters adde, This reverence was gi∣ven to the divine image, after which man was made. Aegisthus, who had secon∣ded his adultery with the murder of the King, was buried by Orestes the son of the murdered King, as Homer relates. * 1.909 And among the Romans, Ulpian saith, the bodies of them that are condemnd to dy are not to be denyed their kindred: yea Paulus his opinion is, they are to be granted to any, whoever they be, that ask them. And Dioclesian and Maxi∣mian Emperours answered thus: We do not * 1.910 sorbid, that offenders, after execution wor∣thy of their crimes, be deliverd to the grave. Indeed, we read in histories ex∣amples of them that have been cast out * 1.911 unburied, more frequent in Civil than Forein wars: and at this day we see the bodies of some condemned persons to be left a long time in publick view: which manner yet, whether it be commendable, is disputed not by Politicks only, but Di∣vines. On the contrary, we find, they are praysed, who gave burial to the bo∣dies of such as had not permitted the
same to others, namely Pausantas King of the Lacedemonians, who being provoked by the Aeginetae to revenge the deed of the Persians upon Leonides, with the like deed, rejected the advice as unworthy of the Graecian name † 1.912. And the Pharisees buried Alexander Jannaeus, who had been very contumelious against his dead Countreymen * 1.913. But if God sometimes hath punished some with the loss of bu∣rial, he hath done this above the constitu∣ted Laws; and, that David kept the head of Goliah to be shewed, was done against an Alien, a Contemner of God, and under that Law, which extended the name of Neighbour to the Hebrews only.
IT is here worthy to be noted, concer∣ning burial of the dead, that the rule a∣mong the Hebrews themselves had an ex∣ception of them that had layd violent * 1.914 hands upom themselues, as Josephus tells us: Nor is it any wonder, when no other punishment can be appointed them that esteem not death for a punishment. So the Milesian maids were frighted from volun∣tary death, and likewise the † 1.915 Plebs of
Rome sometime, though Pliny * 1.916 approve it not. So the body of Cleomenes, who had slain himself, Ptolomy commanded to be hang'd up. And saith Aristotle, it * 1.917 is commonly receiv'd † 1.918, that some dis∣grace be done to them, who have been the Authors of their own death: which Andronicus Rhodius expounding saith, their bodyes were forbidden to be buried. And this among other Decrees of Demo∣nassa Queen of Cyprus is commended by Dion Chrysostomus. Nor is that any great objection against this custome, that Ho∣mer, Aeschylus, Sophocles, Moschio and others say, That the dead feel nothing: and therefore can neither be affected with loss nor shame. For it is sufficient, that that which is inflicted on the dead be feared by the living, and they by this means be deterd from sin. Excellently do the Platonists maintain against the Stoicks, and whoever els admit the avoiding of ser∣vitude and diseases, yea and the hope of glory, for a just cause of voluntary death, That the soul is to be retained in the cu∣stody of the body, and that we must not depart out of this life without his com∣mand who gave it to us. To which point, much may be seen in Plotinus, Olympio∣dorus,
and Macrobius upon Scipio's dream. Brutus was at first of this judg∣ment, and condemned † 1.919 the fact of Ca∣to, which afterward he imitated: For he thought it neither pious nor manly to yield to fortune, and fly away from imminent adversities, which are couragiously to be undergone. And Megasthenes noted the fact of Calanus to be reprehended by the Indian wise-men, whose doctrines did not suite with such an end of men impa∣tient of life. The Persians * 1.920, it seems, were of the same opinion: whose King Dartus saith in the Historian * 1.921, I had rather dy by anothers crime, than by my own. Upon this ground, the Hebrews said to dy was to be * 1.922 dismist: as we may see, not only Lu. 20. 29. but also in the Greek version, Gen. 25. 2. & Numb. 20. in fine. A phrase us'd by the Grecians too. Themistius, de anima, They say, a man that dyes is dismist, and death they cal a departure or dismission. In Plutarch's consolation the word is used in the same sense: Until God himself dismiss us. Yet some † 1.923 of the Hebrews, concerning the Law of not Killing himself, except one case, as an honorable exit, if one see he is like
to live to the reproch of God himself. For, because they hold, not we our selves but God hath power over our life (as Jose∣phus rightly instructed his soldiers:) they think, a presumtion of the will of God is that alone, which may perfect the reso∣lution of anticipating death. And to this they refer Samson's example, who saw true Religion exposed to contempt in the sport made with him; and Saul's, who fell upon his sword, that he might not be mocked by God's and his enemies. For they suppose he repented, after Samuel's * 1.924 ghost foretold him of his death; which, though he knew would come to pass, if he did fight, he nevertheless declined not the battail for his Country and the Law of God, and thence got eternal honour, even by David's Elogy: who also gave to them that honorably buried Saul's bo∣dy, a testimony of their wel-doing. There * 1.925 is a third example of Razes a Jerusalem Senator in the history of the Mac∣cabees. Moreover, in the Christian hi∣story, we read like examples, of them * 1.926 that dyed by their own hands, lest by the force of torments they should be compeld to forswear the Christian Re∣ligion; and of Virgins, who that they might not lose their virginity,
† 1.927 cast themselves into the river; whom also the Church hath listed in the noble Army of Martyrs. But yet, of these, it is worth our paines to see what Austins * 1.928 opinion is. Another exception also, I see, obtained among the Greeks, opposed by the Locri to the Phocenses: † 1.929 That it is a common custom among all the Greeks, to cast away sacrilegious persons unburied: And so Dion Prusaeensis saith, the impious and prophane are denyed burial. The
same, at Athens, was constituted against Traitors, as Plutarch relates † 1.930. But, to * 1.931 return to my purpose, for sepulture de∣nyed, the antients with great consent have judged, war may justly be undertaken, as appears by the foremention'd history of Theseus, handled by Euripides in his supplices, and by Isocrates in the place alleged.
FActs, which are the causes of war, are considerd two ways; as they are to be repair'd, or as they are to be punish'd. This later part, which is of punishments, is the more diligently to be handled by us, because the original and nature thereof not well understood hath given occasion to many errors. Punishment, in general, is the evil of passion, which is inflicted for the evil of action. For, though cer∣tain works are wont to be imposed upon some by way of punishment, yet those works are to be consider'd only as trouble∣some, and therefore are to be referrd to passions. And the incommodities sufferd by some by reason of a contagious disease,
or a maimed body, or other impurities, such as are many in the Hebraw Law, to wit, to be kept from assemblies or functi∣ons, are not properly punishments, al∣though for a certain similitude, and abu∣sively, * 1.932 they are called so. Now, among the things which nature it self dictates to be lawful and not unjust, this is one, that he who hath done evil should suffer evil: which the Philosophers call a most ancient and Rhadamanthean Law. Per∣tinent is that saying of Plutarch, Justice accompanieth God, to punish them that transgress the Law Divine: which all we men by n•…•…ture use against all men as fel∣lows. Plato said, Neither God nor man will say, that an offender ought not be pu∣nisht. And Hierax, by this as the noblest part, defined Justice, an exacting † 1.933 of punishment from offenders. What we have said, that punishment properly so named, must be renderd to some offense, this is al∣so noted by Augustin; All punishment, saith he, if it be just, is the punishment of sin. Which is to be understood of those punishments too, that God inflicteth, though in them sometimes, by reason of human ignorance, as the same Father speaketh † 1.934, the sin is secret, where the pu∣nishment is not secret.
REason dictates, that an evil-doer * 1.935 may be punished, not who should pu∣nish him: but that nature sufficiently sheweth, it is most convenient to be done by him that is superior: yet doth it not demonstrate this to be necessary, except superior be taken in that sense, that the evil-doer be thought to have made him∣self thereby inferior to any other, and to have as it were degraded himself from the order of men into the number of beasts subject to man, as some Divines have de∣termined. * 1.936 Democritus: By nature it is ordaind, that the better command the worse. And Aristotle saith, the worse are provided for the use of the better, as well in naturals as artificials. It follows hence, that at least a guilty person ought not to be punisht by another equally guilty: to which purpose is that sentence of Christ, Whosoever of you is without sin * 1.937 (such a sin) let him throw the first stone. Which he therefore spake, because in that age the manners of the Jews were most corrupt, so that they who would seem most pure were in the mire of Adultery and such like crimes, as we may perceive Ro. 2. 22. The same that Christ had said, the Apostle said also: Therefore thou art inexcusable, O man, whosoever thou art
that judgest: for, wherein thou judge•…•… another, thou condemnest thy self: for th•…•… that judgest dost the same things. Th•…•… of Seneca is pertinent; The sentence 〈◊〉〈◊〉 have no authority, where he that jud∣geth is to be condemned. And elswhere, The respect of our selves will make us more moderate, if we consult our selves, whether we also have not committed the like † 1.938. Ambrose in the Apology of Da∣vid: Whosoever will judge of another, in him judge of himself first; neither let him condemn lesser faults in another, when himself hath committed greater.
NOcent persons are not injurd if they are punished: yet doth it not thence follow that always they must be pu∣nished. Nor is it true. For, both God and and men forgive many things to ma∣ny nocent ones, and are praised for it. Famous is that saying of Plato, which Seneca turnes, to this effect: No wise * 1.939 man inflicteth punishment, because a fault is done but that it may be done no more. For things past cannot be revoked: the future are prohibited. Again, We will not hurt a man, because he hath offended, but that he may not offend; nor shal punish∣ment ever be referred to what is past, but what is to come: for it is not anger but
caution. Diodotus in Thucydides speaking of the Mitileneans to the Athenians, saith, Although I grant them to have dealt very unjustly, yet I will not yield they should be slain, except it be expedi∣ent. This is true of men punishing: for one man is so bound unto another by consanguinity, that he ought not hurt him, without it be for the obtaining of some good † 1.940. In God 'tis otherwise, to whom Plato * 1.941 ill extends his sayings. For the actions of God may be grounded on the right of his supreme dominion, espe∣cially where the special merit of man is also found, though they propose unto themselves no end beside themselves: and so some Hebrews expound that apposite place of Salomon, in this sense, God hath * 1.942 made all things for themselves, even the wicked for the evil day: that is, even then when he punisheth the wicked, he doth it for no other end, but that he may pu∣nish. Yet, if we follow the more received interpretation, 'twill be all one: that God may be said to have made all things for himself: that is, by the right of his soveraignty and perfection seeking or res∣pecting nothing beside himself: as God is said to be of himself, because he is not * 1.943 of any. Certainly, that the punishments of some very wretched persons are exa∣cted by God, not for any thing els, the holy writ testifies, where we read, that * 1.944 he taketh pleasure in their calamity, that
he laugheth and mocketh at wicked men. And moreover, the last Judgment, after which no Amendment is expected, and also some secret punishments in this life, as obduration, evince it to be true, that we say against Plato. Never•…•… man, when he punisheth man, tha•…•… by na∣ture equal to him, ought to 〈◊〉〈◊〉 some∣what * 1.945 to himself. And this is that which the Schoolmen say, the mind of the pu∣nisher ought not acquiesce in the evil of any one. Yea, before them Plato in his Gorgias saith, They that punish any one with death, or exile, or mulct, do will it, not simply, but for some good end. And Seneca: We must come to vengeance, * 1.946 not as if it were sweet to revenge, but pre∣fitable. And Aristotle saith, Some things are honest simply, some upon necessity, and gives an example of the later in the exa∣ction of punishment.
in man, as Eustathius rightly defines it, a fervour † 1.949 of the bloud about the heart from an appetite of revenge: which appe∣tite is of it self so void of reason, that it is often carried against those things that did no hurt, as, against the yong ones of the beast thath hath offended, or, against things senseless * 1.950, as against a stone thrown at a dog. But such an appetite considered in it self agrees not to the ra∣tional part, whose office 'tis to command the affections † 1.951: and therefore not to the Law of Nature, because that is the dictate of the rational and social Nature, as such. Now, reason dictates, man must do no∣thing to hurt another man, unless it have some good end. And in the pain of the enemy alone, so nakedly consider'd, there is no good but false and imaginary: as in superfluous riches, and many other things of like sort. In this sense, not only Chri∣stian Doctors, but Philosophers too * 1.952, condemn revenge in men. Seneca † 1.953: Re∣venge is an inhuman word, received in∣deed for just, but differs from contumely in order only: He that returneth pain, of∣fends, only he hath some excuse. Yea, if we believe Maximus Tyrius, He is more unjust, who revengeth himself, than he, who gave the first hurt. Musonius saith, To devise how one may bite him that bites, and hurt him that hurts, is the part of a beast, non of a man. In Plutarch Dion, he that turned Plato's wisedom to
civil acts: Revenge, by the judgment of Law, is esteemed more just than the of∣ferd injury: but if Nature judge, it springs out of the same disease of minde. Wherefore it is repugnant to the nature of man, dealing with man, to be satiated with anothers pain, as it is pain. And by consequence, the less rational any man is, the more revengeful. Juvenal. Sat. 13.
Revenge than life it self's a greater good. * 1.954 Thus fools † 1.955 at no cause, or at toyes, take fire; The least occasion serves to blow up ire. Chrysippus his opinion was not such, Mild natur'd Thales would not say thus much; The good old man, that did a neighbour live To sweet Hymettus, would not fetter'd, give Part of that hemlock in his cup infus'd, Even to the slave by whom he was ac∣cus'd. Happy Philosophy! that by degrees Kills vices first, then souls from errour frees. For to rejoice, when those we hate do smart, Argues a feeble and a narrow heart: Which instantly you may from hence col∣lect, That women * 1.956 most of all Revenge affect.In the same sense Lactantius: Unlearned and unwise men, if at any time they re∣ceive injury, are drawn by à blind and un∣reasonable fury, and labour to repay the like to those that offend them. It is plain then, that man is not rightly punisht by man, only for the punishment sake. What utilities make the punishment right, let us now see.
HEre is pertinent that partition of pu∣nishments, which Plato hath in his Gorgias, and Taurus the Philosopher up∣on that place, whose words are rehearsed by Gellius. For those partitions are taken from the end, but that, when Plato had set down two ends Amendment and Ex∣ample, Taurus adds a third 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 * 1.957, which Clemens of Alexandria defines, a retribution of evil, which is referred to the profit of the exactor. Aristotle * 1.958, who omitting exemplary punishments, puts down this species † 1.959 only, with amend∣ment, saith it is used, for the exactors sake, that he may be satisfyed. And this is properly that which the same Aristotle referrs to the justice, which he calls Com∣mutative. But these things are to be exa∣mined more narrowly. We will therefore say, that in punishments is respected ei∣ther the utility of him that hath offended,
or of him against whose interest the of∣fense was, or of any other indistinctly. To the first of these ends belongs the pu∣nishment called by Philosophers, some∣time 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, sometime 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, sometime 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: Paulus the Lawyer calls it punish∣ment for emendation, Plato to make one wise, Plutarch a medicine of the mind, having this effect to make one better by way of Physick, which works by Con∣traries. For because all action, expecial∣ly deliberate and frequent, bege•…•…s a cer∣tain proclivity to the like, which after growth is call'd a habit; therefore with all speed vices are to be deprived of their allurement: and this cannot be better done, than by embittering their sweetness with some pain * 1.960 following. The Plato∣nists in Apuleius: It is worse than any punishment, if the guilty scape unpunished: and in Tacitus we read, The corrupted and corrupting minde, sick and instam'd, is to be restrained and cooled with remedies as vehement, as the lusts wherewith it burneth.
PUnishment for this end is by nature lawful for any one that is of good judgment and not obnoxious to the same or equal vices, as appears by that castigation which is by words † 1.961. but in
stripes and other punishments that con∣tein somewhat of coaction, the difference between persons that may, or may not, * 1.962 is not made by nature (nor could it be made, only reason peculiarly commends to parents the use of that right over their Children by the neerness of affection) but by Laws, which for the avoiding of contention, have restrained that common propinquity of mankind to the next Re∣lations, as may be seen, both elswhere, and in Justinians Code (tit. de emenda∣tione propinquorum.) Whither perteins also that of Xenophon to his Soldiers: If I have beaten any one for his good, I confess I owe such a punishment, as parents do to their Children, Masters to their Scho∣lars; And Physicians too, for their patients recovery, sear and cut. Lactantius lib. 6. Jubet Deus &c. God commands us al∣ways to have our hand over our infe∣riours, to chastise them daily for their of∣fences, lest by our unprofitable love and too much indulgence, they be ill bred and nou∣rished for vice. But this kind of punish∣ment cannot extend unto death, except re∣ductively, as negations are reduc'd to the opposite things. For as Christ said, it had been better for some, that is, not so bad, if * 1.963 they had never been, so to incurable na∣tures it is better, that is, less evil, to die than to live, when it is certain, they will become worse by living. Seneca speaks of * 1.964 such, when he saith, To perish is some∣time
for the good of those that perish * 1.965 Such a one Plutarch saith, is hurtful in∣deed to others, but most of all to himself. And Galen, when he had said men are punished with death, first that living they may not hurt, next that others by fear of punishment may be deterred, adds, And thirdly, it is expedient for themselves to dye, being so sick and corrupted in their mind, that they cannot be restored to health. Some think, these are they whom John the Apostle saith do sin to death: but * 1.966 because the arguments hereof are falla∣cious, we are taught by charity to have no man for deplored, and past hope; so that punishment for this end can have place but very seldome.
THe * 1.967 utility of him, against whose in∣terest the fault was made, is herein placed, that he suffer the like no more, neither from the same nor others. Gellius out of Taurus describes it thus: When the dignity or authority of him that is wron∣ged is to be maintaind, lest pretermission of the penalty breed contempt of him, and diminish his respect. What is here said of authority wronged, is to be understood of every ones liberty or other right, wherein
he is injured. In Tacitus we read, He should provide for his security by a just re∣venge. That the injur'd party may not suffer wrong from the same hand, three ways may be taken: first, by destroying the person that hath offended; secondly, by weaking his force that he may not be able to do hurt; and lastly, if he be taught by his own evil to do so no more, which is the same with emendation, whereof we spake even now. That the injur'd party may not be hurt by others, is effected, not by every punishment, but that which is open, conspicuous and exemplary. If then, to these ends, and within the bounds of equity, vindication be directed, though private, if we respect the bare Law of Nature, abstract from Laws Divine and Human, and from all not necessary acci∣dents to the thing, it is not unlawfull; whether it be made by him that is wron∣ged, or by another, seeing it is consenta∣neous to nature that man should receive aid from man. And in this sense may be admitted, that Cicero, having said, the Law of Nature is that which comes not from * 1.968 opinion but innate vertue, among the examples of it placeth Vindication, which he opposerh to Favour: and that none might doubt how much he would have to be understood by that name, he defines Vindication, Whereby by defending or re∣venging we keep off force and contumely from us, and ours, who ought to be dear un∣to
us; and whereby we punish offences † 1.969. By this natural right Samson defending himself against the Philistins, saith, He should be guiltless, if he did return evil for evil to them; and after a slaug•…•…ter made, He defends his doing by the same reason, saying, he had served them, as they would have served him. The Pla•…•…∣ans in Thucydides; Justly have we taken revenge upon them, by the Law received among all men, allowing recompence to enemies. It is a common Law among men, saith * 1.970 Demosthenes, that we may be reveng'd of him that takes our goods by violence. And Iugurtha in Sallust, when he had said, Adherb•…•… lay in wait against his life, adds, the people of Rome would do tha•…•… which is n•…•… good nor right, if they hindred him from the right of Na∣tions, that is, from re•…•…nge. † 1.971 Aristides the Orator sait•…•… 〈◊〉〈◊〉, and Authors of Lawes, and Proverbs and Orators, and all men 〈◊〉〈◊〉 approve 〈◊〉〈◊〉 this; That revenge sho•…•…a be 〈◊〉〈◊〉 of 〈◊〉〈◊〉 that have offerdin∣jury. The Maccabees are prais'd by * 1.972 Am∣brose for rev•…•…ging the death of their in∣nocent brethren, even on the Sabbath. The same Father disputing against the Jews making grievous complaint that their Church was fir'd by the Christians, saith, should I plead the Law of Nations,
I might shew how many Churches the Jews set on fire in the time of Julian's Em∣pire; where he calls it the Law of Nati∣ons, to render like for like † 1.973. But because in our and our friends affairs we are cor∣rupted by affection, therefore many fa∣milies came together into one place, judges were appointed, and power was given to these alone to avenge the injurd, the liberty which nature had indulged being taken a∣way from o∣thers * 1.974. De∣mosthenes: It was decrecd, •…•…ustice should be done, in all these in•…•…uries, according to the Laws, and not according to every ones lust † 1.975 and pleasure. Quintilian: The compen∣sation of injury is not only against Law, but peace. For there is the Law, the Court, the judge, unless one be ashamed to seek a remedy by Law. The Emperours Honorius and Theodosius: Therefore are judgments in force, and the publick Laws ordained for the protection of men, that none may take the liberty to revenge himself. King Theodoricus: Hence was the sacred re∣verence of Laws found out, that nothing might be done by violent hands, nothing
by the impulse of a private spirit. Howbe it, the old natural liberty remains, first 〈◊〉〈◊〉 places where are no judgments, as on the Sea. Whither perhaps may be referrd that * 1.976 act of C. Caesar: who being yet a private man pursued the Pirats, by whom he had been taken, with such a navy as he could provide in hast, and partly chased, partly sunke their ships: and, when the Procon∣sul neglected to do justice upon the cap∣tives, himself returning to Sea hanged them up. The same will have place in de∣serts, or where they live like the Nomades. So among the Umbrici † 1.977, * 1.978 Nicolaus D•…•…∣mascenus relates, every one was his own Avenger: which also is done done at this day among the Moscht, some time after an address to the judge. Nor had Duels and single Combats any other original, which before Christianity were used by the Ger∣man Nations * 1.979, and in some places are not yet enough disused. Therefore the Germans, in Velleius Paterculus, won∣der, when they beheld the form of the Ro∣man Jurisdiction that they ended injuries by justice, that things wont to be decided by arms were determined by Law. The Hebrew Law permits the Kinsman of one slain to kill the manslayer without the places of refuge: and the Hebrew inter∣preters do rightly note, that such a re∣compence, for the dead, may be required by force; for one self, as in a wound, not unless by the judge; because, moderati∣on
is more difficult where a mans own pain is urgent. A like custom of privately revenging slaughter was among the most antient Greeks, as appears by Theoclyme∣nes * 1.980 words in Homer. But most frequent are the examples hereof amongst them that have not any common judge. Hence are just wars desined to be those that re∣venge * 1.981 injuries, as Austin saith; and Plato approves of force of arms, until they * 1.982 that are in fault be compelled to give sa∣tisfaction to the innocent and wronged party.
THe utility of all sorts, which was the third end, hath the same parts with that which perteins to the wronged person. For, either this is the intent, that he who hath wron∣ged one, may not wrong others (which is brought to pass by destroying him, or by weakning him, or by binding him so that he may not be able to hurt, or by a∣mending him:) or, lest others encou∣raged by his impunity be troublesome † 1.983 to any other persons, which end is obtained * 1.984 by conspicuous punishments; which the Greeks call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the Latins exem∣pla: which are therefore used, that the punishment of one may be the fear of many: that by the kind of punishment
others may be deterred, as the * 1.985 Lawes speak: that others may beware and fear, as Demosthenes. The power also of this Law is in every mans hand naturally. S•…•… Plutarch † 1.986 saith, a good man is by na∣ture designd a Magistrate, and that perpe∣tuall: For by the very Law of Nature he is Prince that doth just things. So Tully proves by the example of Nasica, that a wise man never is a private man; and Horace calls Lollius Consul not of one year; Which sayings are nevertheless to be understood in a Commonwealth, so far as the Laws thereof do bear. Of this natural right Democritus; He that 〈◊〉〈◊〉 a Theef or a Robber any way, either by his own strength, or by command, or by suf∣frage, is innocent. And † Seneca: When I shall command a malefactors head to be cut off, I will be of the same mind and countenance, as when I smite Serpents * 1.987
and venemous creatures † 1.988. But, whereas both the inquisition of the fact often re∣quires great diligence, and the estima∣tion of the penalty, much of wisedom and equity, lest, while every one presumed too much of himself, others not giving place, contentions should arise, therefore it plea∣sed the just communities of men to make choice of the best and wisest; such as they esteemed so, or hoped would prove so. The same Democritus: The Laws would not have hindred every one to live after his own pleasure, unless one had gone about to offend another. For envy lays a ground for sedition. But, as above we said of revenge, so in this exemplary punishment, some footsteps and reliques of the old right do yet remain, in those places, and among those persons, which are not under cer∣tain Jurisdictions; and moreover in some excepted cases. So, by the custems of the Hebrews, an Hebrew falling away from * 1.989 God and his Law, or misleading any to false worship, might presently be slain by any man. The Hebrews call it the judg∣ment of zeal, which, they say, was exer∣cised first by Phineas † 1.990, and thence grew into a custom. Lo Mattathias killed a certain Jew, polluting himself with Gree∣kish rites. So three hundred other Jews were slain by their Countrey-men, as is related in the book commonly call'd the third of the Maccabees. Nor was Stephen * 1.991 stoned upon other pretence, or conspira∣cy
made against Paul: and many other examples of like sort are extant both in Philo † 1.992, and in Josephus. Moreover a∣mong many people, both to Masters over their servants, and Parents over their chil∣dren, remained a full right of punishing them, even to death. So at Sparta, the Ephori might put a Citizen to death with∣out judgment. Thus by what we have said, may be understood what the right of Nature is touching punishments, and how far it hath remained.
NOw must we consider, whether the Evangelical Law hath more nar∣rowly circumscribed that Liberty. Surely, as we have elswhere spoken, it is no won∣der, that some things, which by nature and the Civil Laws are Lawful, are forbid∣den by Divine Law, and that most per∣fect, and promising a reward above hu∣man nature; to the attaining whereof, not undeservedly are requir'd vertues that ex∣ceed the meer precepts of Nature. Casti∣gations * 1.993, which do leave neither infamy nor permanent loss, and are necessary in
respect of age or other quality, if they come from those hands, which are per∣mitted by human Laws to inflict them, (namely, Parents, Tutors, Masters and Teachers) have nothing repugnant to the Evangelical Precepts, as we may suf∣ficiently conceive by the nature of the thing it self. For these are remedies for the mind, not less innocent than medi∣cines ungrateful to the sense. Of revenge we must have another opinion. For, as it only exsatiats the mind of the offended person, it is so far from agreement with the Gospel, that, as we have shew'd a∣fore, it is even naturally unlawfull. But the Hebrew Law not only forbids hatred to be kept against the neighbour, that is, * 1.994 one of the same nation, but also com∣mands certain common benefits to be * 1.995 conferrd upon such enemies. Wherefore, the name of neighbour being extended by the Gospel to all men, it is manifest here is required of us, not onely that we hurt not our enemies, but that we do them good: which is also plainly commanded Matth. 5. 44. Yet the Law permitted the Hebrews to revenge greater injuries, not with the hand, but by address unto the Judge. But Christ doth not permit the same to us, as appears by that opposition, Ye have heard it hath been said, An eye for an eye: and after: But I say unto you. For although the words that follow, pro∣perly speak of repelling in jury, (and re∣strain
this licence too, at least in some measure) yet are they to be conceived much more to disallow of revenge, be∣cause they reject the old permission as a∣greeing to a more * 1.996 imperfect time; n•…•…, that just revenge is unlawfull, but because patience is preferd before it, as it is in the Constitutions of Clement. l. 7. c. 23. Whereof Tertullian † 1.997 saith, Christ plainly teacheth a new kind of patience, forbid∣ding even that recompence of injury, which was permitted by the Creator, requiring an eye for an eye, and a tooth for a tooth: 〈◊〉〈◊〉 the contrary He will have the other check also to be offerd, and the cloak to be yielded after the coat. Plainly hath Christ added these as meet supplements to the disciplin of the Creator, &c. Tertullian was of o∣pinion, that retaliation of injuries was forbidden, not Christians only, but that even to the Hebrews it was not permit∣ted, as a thing without fault, but for the avoiding of a greater evil. Which is true, no doubt, of such a retaliation that pro∣ceeds from hatred, as appears by our for∣mer discourse. For, that this is disallow'd even by them who among the Hebrews excell'd in wisedom, and regarded not the words only but the purpose of the Law, is manifest out of Philo; in whom the Alexandrian Jews, upon the calamity of Flaccus, the Jews oppressor, speak thus: We are not delighted, Sir, with the revenge upon our enemy; for we have lear∣ned
out of our holy Laws * 1.998 to take pity on men. And hither it perteins, that Christ exacteth of us indistinctly, to forgive all that have trespassed against us; that is, * 1.999 neither to procure nor to wish evil to them upon sense of our evil; for, to speak with Claudian,
Who rights himself doth wrong, in that he * 1.1000 draws Unto himself the office of the Laws.For which reason Lactantius mentio∣ning that saying of Cicero; It is the first * 1.1001 part of Justice to hurt none, except pro∣voked by injury, saith, A good sentence is spoil'd by adding two words: and Am∣brose saith, the same sentence of Cicero is without the authority of the Gospel. But what shall we say of revenge, not as it re∣specteth the time past, but as it provideth for the future? Surely this also Christ would have to be remitted: first, if lie * 1.1002 that hath trespassed against us give pro∣bable testimonies of a penitent mind † 1.1003. In which places a certain more plenary re∣mission is spoken of, such as restores the offender to the right of former friendship: whence it follows, that nothing ought to be exacted of him in the name of a pu∣nishment. Moreover, though signs of such repentance be wanting, that a da∣mage, not too grievous, is to be sleigh∣ted, Christ hath taught by the Precept of
letting go the coat. Yea and Plato said, evil is not to be returned, Alb•…•…it so•…•… greater evil be imminent, and must be suf∣ferd; and Maximus Tyrius hath word•…•… of the like sense. Musonius said, He would not have an action against any one for contumely received (such as Christ signifies by a blow on the cheek) no•…•… would he perswade any other to concerd about it: for such things are much bett•…•… passed by, and forgiven. But if the pu•…•…∣ting it up draws much danger with it, we ought to be content with that caution which hath least incommodity. For, as Josephus and other Hebrew Doctors note, the Hebrews themselves had not com∣mon use of retaliation, but the offended party, beside his charges, of which a di∣stinct Law is extant Exod. 21. 19. (this is simple * 1.1004 restitution conteining nothing penal) was wont to receive, for retalia∣tion, a pecuniary * 1.1005 mulct: which was also done at Rome, as Favorinus notes in Gellius. So Joseph the foster-father of our Lord Jesus, when he believed his wife had been unchast, chose rather to free him∣self by * 1.1006 divorce, than to make her an example: and he is said to have done it, because he was a just man, that is, honest and gentle. Upon which place Ambrose saith, the person of a just man is not on∣ly abhorrent from the atrocity of revenge, but a verse also from the severity † 1.1007 of ac∣cusation. So Lactantius had said before:
Neither may a just man accuse any one of a capital crime. Justin, of the accusers * 1.1008 of Christians, saith; We would not have them punished, who cast calumnies upon us. Sufficient to them is their own wic∣kedness, and their ignorance of good things. There remain those punishments which provide not for private but publick good; partly by taking out of the way or restrai∣ning the nocent person, that he may not hurt; partly by deterring others with the severity of the example: That such pu∣nishments are not taken away by Christ we have proved elswhere by a most cer∣tain argument: because, when he gave his precepts, he testified that he destroyed not any tittle of the Law. Now, the Law of Moses, which ought to stand in these things, as long as the Commonwealth, rigidly commanded magistrats, to punish * 1.1009 homicides and certain other crimes. But, if Christ's Precepts might consist with the Law of Moses, as it did inflict even ca∣pital † 1.1010 punishments, they may also con∣sist with human Laws * 1.1011, which, in this part, do imitate the Divine?
SOme, to defend the contrary opinion allege the very great lenity of God•…•… the new Covenant, which is therefore: be imitated by men, even Magistrats 〈◊〉〈◊〉 as the Vicars of God. This we yield 〈◊〉〈◊〉 some sort true, but not so far as they would extend it. For, the great mercy of God manifested in the new Covenant especially regardeth sins against the Pri∣mitive * 1.1012 Law, or also committed against the Law of Moses, before the knowledge 〈◊〉〈◊〉 the Gospel was received. For, the 〈◊〉〈◊〉 committed after, especially if accompa∣nied with contumacy, have a comminat•…•… of judgment far more severe † 1.1013, than th•…•… which was ordained by Moses. Nor only * 1.1014 in the life to come, but in this life too doth God often shew his wrath agai•…•… such offences, 1 Cor. 11. 30. And p•…•… don of these crimes is not usually obtain•…•… unless man himself do as it were ex•…•… punishment of himself † 1.1015, 1 Cor. 11. 3. 〈◊〉〈◊〉 a certain grievous sorrow and afflicting 〈◊〉〈◊〉 his soul, 2 Cor. 2. 27. The same obje∣ctors urge, that at least to the penitents to be granted impunity. But, to omit that men can hardly be certain when 〈◊〉〈◊〉 pentance is sincere; and, that every 〈◊〉〈◊〉 would scape unpunished, if it were suffi∣cient
in any manner to make profession of repentance; God himself doth not al∣ways remit all punishment to the peni∣tent, as appears even by Davids example. Wherefore, as God might remit the pe∣nalty of the Law, that is, violent or other∣wise immature death, and yet inflict no small evils upon the offender: so now al∣so * 1.1016 may he remit the punishment of eter∣nal death, and in the mean time, either himself punish the sinner with immature death, or be willing he should be so pu∣nished by the magistrat.
AGain, others find fault, that toge∣ther with life, space of repentance is also cut ost. But these men are not ig∣norant, that pious Magistrats have great care hereof, and appoint not any one to to be executed, without some time al∣lowed, wherein he may acknowledge his sins, and seriously detest them. Which kind of repentance * 1.1017, though works, inter∣cluded by death, follow not, may be ac∣cepted by God, as is proved by the exam∣ple of the Thief crucified with Christ. If it be said, a longer life might be profitable to a more serious repentance and amend∣ment; it may be answer'd, Men are found sometimes such, to whom that of Sene∣ca
† 1.1018 may be spoken justly: We will do you all the good that can now be done you, 〈◊〉〈◊〉 put you to death * 1.1019. And that also of th•…•… same Author; There is but one way f•…•… them to cease to be evil, that is, to ce•…•… to be. Likewise said Eusebius the Philo∣sopher. This then, beside what hath been said in the beginning of our work, be ans∣wer'd to them, who would have either all, or capital punishments, without any ex∣ception, forbidden Christians: contrary to the Apostles doctrin, who having in∣cluded in the regall office the use of the sword, as the exercise of Divine revenge, in another place exhorteth to pray, that Kings may be made Christians, and, as Kings, be a protection to the innocent. This cannot be obtain'd (such is the im∣probity of a great part of men, even after the propagation of the Gospel;) unless the boldness of some be repressed by the death of others: and thus too, among so many punishments and executions of the guilty, innocency is hardly enough secu∣red. Nevertheless, it is not amiss, to pro∣pose to the imitation of Christian Rulers, at least in some part, the example of Sa∣bacon † 1.1020 King of Egypt, for his piety very famous, by whom Capital punishments, with most happy success, were commu∣ted for tasks, and malefactors condem∣ned to work, as Diodorus relates: and Strabo saith, there are some Nations neer Caucasus, among whom the greatest offen∣ders
received not the sentence of death. * 1.1021 Nor is that of Quintilian to be despised, No man will doubt, but if wicked men may by any means be recalled unto a right mind, as sometimes it is known they may, it is better for the Commonwealth to save, than to destroy them. Balsamon notes, that the Roman Laws, which imposed penalty of death, were most of them chan∣ged, by the later Emperours being Chri∣stian † 1.1022, into other punishments * 1.1023; to the end, a deeper impression of repentance might be made upon condemned persons, and the continuance of the punishment might serve the more for example.
OUt of these things last spoken, it may be collected how unsafe it is for a private Christian, whether for his own, or for the publick good, to take punishment of any wicked man, especial∣ly capital, though we have said it is some∣times permitted by the Law of Nations. Whence the manner of those people is to be commended, amongst whom such as go to Sea have commission from the pub∣lick
Power, to pursue Pyrats, if they find any; that they may use the occasio•…•… given, not as by their own adventure, be publickly commanded. Not unlike 〈◊〉〈◊〉 this, is another custom receiv'd in many places, that unto criminal accusations † 1.1024 are admitted, not all that please, but cer∣tain men, upon whom, by publick au∣thority, that office is imposed: that no man may do any thing at all tending to the shedding of anothers blood, but by the necessity of his office. Hither pertei•…•… the canon of the Eliberan Synod: If any believer turn informer, and by his accu∣sation any be proscribed or put to de•…•…h, Our decree is, that he shall not, no 〈◊◊〉〈◊◊〉 the end, receive Communion. Lastly, this also is understood by what hath been said, that a man truly Christian is not well advised, nor doth it become him, to affect and thrust himself into publick Of∣fices † 1.1025 that have judgment of blood, and think and profess it fit, that power of life and death over his fellows should be committed to him, as most excellent 〈◊〉〈◊〉 all, and as it were a God among men. For certainly, what Christ admonisheth, that it is dangerous to judge of others, be∣cause such judgment as we give, must we * 1.1026 in like cases expect from God, is not im∣pertinent in this place.
THis is a noble question, and Covarru∣vias * 1.1027 and Fortunius answer, that such Laws give only impunity: whose opinion is so displeasing to Ferdinandus Vasquius, that he calls it an ungodly opinion. No doubt, as we have said elswhere, the Law may do both, in certain cases; but, whether it will or no, is to be understood partly by the words, partly by the matter of the Law. For, if the Law give indulgence to passion, it takes away human punishment, not the fault, as in case a husband kill his Adulte∣rous Wife, or the Adulterer * 1.1028. But if the Law respect the danger of future evill by delay of punishment, it is to be conceived to grant right and publick power to a pri∣vate man, so that now he is not private. Of this kind is that Law in Justinians Code, under the rubric, quando liceat unicui{que} &c. Where every man hath li∣cence given him to oppose force against plundering and pillaging Soldiers, this reason being added: For it is better to meet with them it time, than to seek re∣dress after the injury done. We therefore permit you to defend & avenge your selves,
and what is too late punished by judgment we suppress by edict, that none spare a Sol∣dier, but use his weapon against him 〈◊〉〈◊〉 thief. And the subsequent Law, abo•…•… desertors, saith, Let ail men know, th•…•… have power given them against public•…•… robbers, and desertors, that run from th•…•… colours, and all are ministers of public•…•… revenge for the quiet of all. To this pur∣pose is that of Tertullian: Against Tr•…•…∣tors and publick enemies every man is a Soldier † 1.1029 And herein differs the right 〈◊〉〈◊〉 killing exiles, whom they call Banni•…•…, from this kind of Laws, because there pre∣cedes a special sentence, here a general Edict, the fact being evident, * 1.1030, obtei•…•… the force of a sentence pronounced.
NOw let us see, whether all vicious acts are such, that they may be pu∣nished by men. Certainly, all are no•…•… such. For first, acts meerly internal, though by some chance, to wit, by con∣fession afterward, they may come 〈◊〉〈◊〉 knowledge of others, cannot by men be punisht; because, as elswhere we have
said, it is not agreeable to human nature, that from acts meerly internal, any right among men or obligation should arise. And in this sense is to be taken, that in the Roman Laws: No man is punishable for his thought. Neverthe∣less * 1.1031, internal acts, as they have in∣fluence into external * 1.1032, come under estimation, not of themselves proper∣ly, but of the acts external, which do thence receive the quality of their merit. Secondly, men cannot punish acts inevi∣table to human nature. For, although it cannot be sin, which is not done free∣ly; yet, from all sin, altogether, and al∣ways, to abstain, is above human condi∣tion. Whence, among the Philosophers, Sopater, Hierocles, Seneca; among the Jews, Philo † 1.1033; among the Historians, Thucydides; many among the Christians have delivered, That it is natural to man, to sin. If he must be punished, saith Se∣neca * 1.1034, whosoever is of an evil and male∣ficent nature, every one must be punished. And Sopater; If one punish men, as those that may be void of all sin, be exceeds the measure of that correction which is accor∣ding to nature: which Diodorus Siculus † 1.1035
saith, is to be injurious to the common im∣becillity of mankind: elsewhere, to be un∣mindful of human infirmity. The fore∣mentiond Sopater saith, Smal faulti, and of daily incursion, are to be dissembled. Yea, it may be doubted, whether these may rightly and properly be called sins, when the liberty which in sp•…•…cie they seem to have, considerd in their genera∣lity they have not. Plutarch in his Se∣lon; A Law must be fram•…•…d according to that which is possible if one will punish a few profitably, not many to no purpose. Some things also are inevitable, not to human nature simply, but to this person at this time, by reason of the body's tem∣per † 1.1036 passing into the mind, or of an old custom, which yet is wont to be punisht, not so much for it self, as for a precedent fault * 1.1037 because either remedies were ne∣glected, or diseases in the mind volunta∣rily contracted. Thirdly, sins are no•…•… to be punish•…•…, which do neither directly nor indirectly respect human society, or ano∣ther man. The reason is, because there is no reason why these sins should not be left to be punished by God, who is most wise to know them, and most righteous to weigh them, and most powerfull to a∣venge them. Wherefore such punishment would be executed by men without any utility, and so not rightly. Here are to be excepted punishments emendatory, which have this for their cause, that the offender
may be bettered, though haply it concern not other men. Moreover, punishable are not, acts opposed to vertues, whose nature refuseth all coaction; in which kind are mercy, liberality, gratitude. Se∣neca * 1.1038 handles this question, Whether the vice of an ungrateful man ought to be un∣punished: and brings many things to the purpose, but this especially, which may be extended to other like qualities; When as it is a most commendable thing, to make requital of a benefit, it ceaseth to be com∣mendable, if it be necessary; that is, it loseth that excellent degree of praise, as the following words do shew; for one will not more praise a gratefull man, than him that restores a thing committed to his trust, or payes what he owed without a sute. A little after; Tis no glory to be gratefull, were it not safe † 1.1039 to have been ungratefull. That of Seneca the father, in his controversies, may be applyed to vices of this kind; I desire not the ac∣cused person should be praised, but absol∣ved † 1.1040.
IT follows that we consider, whether sometimes it be lawfull to grant a par∣don. For the Stoicks † 1.1041 deny, but upon a light ground: Pardon, say they, is a re∣mission of due punishment: but a wiseman gives every one his due. Here the fallacy lyes in the word due. For, if you under∣stand punishment to be due to him who hath done a fault, so that he may be pu∣nished without injury, it will not hence follow, if one punish him not, he doth wrong. But, if you conceive punish∣ment so to be due from a wise man, that it is his duty to exact it, we say, that is not always so, and therefore in this sense, punishment may be, not due, but onely lawfull. And that may be true, both be∣fore the constitution of a penal Law, and after. Before a penal Law ordained, there is yet no doubt but punishment may have place: because naturally he that is a de∣linquent is in that state, that he may law∣fully be punished: but it doth not there∣fore follow, that the punishment ought † 1.1042 to be exacted; because this depends upon the connexion of the ends, for which pu∣nishment was ordained, with the punish∣ment it self. Wherefore if those ends by themselves, in a moral estimation, be not
necessary; or, if other ends, on the op∣posit part, occur, not less profitable or necessary; or, if the ends proposed to the punishment may be attained another way; now it appears, there is nothing which precisely obligeth to the exacting of the punishment. An example of the first may be in a sin known to very few: the publick traduction whereof may ther∣fore not be necessary, yea it may be hurt∣full; to which that of Cicero is pertinent, concerning one Xerxes: It was not fit * 1.1043 perhaps to dismiss him being brought to judgment; but that he should be enquired after and brought to judgment, was not necessary. An example of the second, in him, who opposeth to the fault either his own or his parents good deeds worthy of recompence; for, saith Seneca, a benefit superventent suffers not the injury to ap∣pear. Of the third, in him, who is amen∣ded with words, or with words hath satis∣fi'd the wronged party, so that there is now no need of punishment to those ends. And this is one part of clemency freeing from punishment; which the He∣brew wise man respecting saith; It beco∣meth * 1.1044 a just man to be mercifull. For, be∣cause all punishment, expecially the more grievous, hath somewhat, which by it self considered, is repugnant, not indeed to Justice, but to Charity, Reason easily permits to abstein from it, unless greater and juster Charity do as it were irrefra∣gably
hinder. Sopater hath a place appo∣site to this matter, where he saith, Th•…•… part of justice, which reduceth contract to equality, wholly refuseth all kind of fa∣vour; but that part which is conversant a∣bout offences doth not disdain the kind and amiable countenance of the Graces † 1.1045. Now these three things may occur, either that punishment is by all means to be exacted, as in wickednesses of the worst example † 1.1046; or, that it is by no mea•…•…s to be exacted, as: when the publick good requires it to be omitted; or, that it is lawfull either to omit to exact it; whi∣ther pertains that of Seneca, Clemency hath free choice, A wise man then, say the Stoicks, parcit non ignoscit; spareth, doth not pardon. As if forsooth it were not lawfull for us, with the common peo∣ple the masters of speech, to call that to pardon, which they call to spare. Truly, both here and elswhere, as Cicero, Galen, and others have noted, a great part of Stoical disputations is spent about words; which a Philosopher should principally take heed of * 1.1047. After, a penal Law, the difficulty seems greater; because the au∣thor of a Law is in some sort bound by his own Laws; but this is true, so far as the Author of a Law is considered as a part
of the Commonwealth, not as he susteins the person and authority thereof. For in this later respect, he may take away eve•…•… a whole Law; because the nature of a human Law is, to depend upon the will of man, not in its original only, but also in duration. Howbeit, the Author of the Law ought not to take away a Law, ex∣cept upon some approvable cause: other∣wise, he will transgress the rules of just Goverment. Now, as he may totally take away a Law, so may he unty the bond thereof, as to a person or singular fact, the Law remaining firm in other re∣spects; and this after the example of God himself, who as Lactantius saith, when he gave the Law, deprived not himself of all power, but hath reserved a liberty to par∣don. And Austin saith, The Emperour may revoke his sentence † 1.1048, and absolve a man guilty of death, and pardon him: he expresseth a reason for it: because He is not subject to the Laws, who hath it in his power to make Laws. Seneca would have Nero think this: No man at all can put any one to death against Law; and no man, beside my self, can save any. But this also is not to be done, unless there be good reason for it. And what are good reasons, though it cannot be precisely defined, yet this is certain, they ought to be greater after the Law, than those that were con∣siderd before the Law: because the autho∣rity of the Law, which to be kept is
profitable, is now added to the causes of punishing.
THe Causes of freeing one from pu∣nishment of Law are wont to be ei∣ther intrinsecal, or extrinsecal. Intrinse∣cal, when the punishment, if not unjust, yet is hard, being compared with the fact. Extrinsecal, from some merit or other thing commending the person; or also, from good hope of him for the future; which kind of cause will be then most sufficient, if the reason of a Law, at least particularly, cease in the present fact. For although, to sustein the efficacy of the Law, the universal reason be enough, where no contrary reason is; yet, even the particular reason ceasing, the Law may more easily and with less diminution of authority be disperised with † 1.1049. This is most usual in those offences, which are committed through ignorance, though not without all fault, or vincible; but by reason of the minds infirmity, not ea∣sily vincible. Upon which offences a Chri∣stian Ruler of men ought to look with a gentle eye, in imitation of God, who in the old Covenant indeed required many such to be expiated with certain Sacri∣fices * 1.1050: but in the new, by words and by examples hath testified, that he is ready * 1.1051
to grant pardon of such to those that re∣pent. And truly, that Theodosius * 1.1052 was * 1.1053 induc'd by those words of Christ, Fa∣ther forgive them, they know not what they do, to forgive the Antiochians, is noted by Joannes Chrysostomus. And hence appears how ill Ferdinandus Vas∣quius * 1.1054 said, a just cause of dispensing, that is, of loosing one from the Law, is only that of which the Author of the Law be∣ing consulted would have said, it was be∣side his meaning, that it should be obser∣ved. For he distinguisheth not between the equitable * 1.1055 interpretation of the Law, and the relaxation of it. Whence in ano∣ther place he reprehendeth Thomas and * 1.1056 Sotus for saying, The Law bindeth, al∣though the cause particularly ceaseth: as if they had thought the Law to be the let∣ter alone; which never came into their minde. All Relaxation of the Law, which may oft be given and omitted freely, is so far from equity properly so call'd; that neither that relaxation which is due either out of charity or justice, can be referred thither. For to take away the Law ei∣ther on probable or urgent cause, is one thing; another, to declare the fact not to have been comprehended in the mind of the Law from the beginning.
IT is manifest, that wars are not to be undertaken for every offence: for, nei∣ther do the Laws bestow that their re∣venge, which is safe and hurts only the nocent, upon all faults. Rightly saith the forecited Sopater, That less and com∣mon transgressions are to be winked at, not revenged. Now, that which Cato said * 1.1057 in his Oration for the Rhodians, that it is not equal any one should be punisht for an intent of doing evil, was indeed well set in that case; because no decree of the Rhodians could be alleged, but only conjectures of their fluctuating minde: yet is not this to be received universally. For, an intent or will, that hath procee∣ded to external acts (for the internal are not punished by men, as we have said a∣fore) is wont to be lyable to punishment † 1.1058. So the Romans decree a war against Perseus, unless he give satisfaction for
holding consultation; and preparing war against the Roman people: for indeed he had provided arms, soldiers, ships. And this is well noted in the orations of the Rhodians, which Livy hath recorded; It agrees neither with the customs nor Laws of any Commonwealth, that if one desire the destruction of his enemy, and have done nothing to effect it, he should lose his life. Neither doth all ill will, though declared by some deed, make room for punishment. For, if sins finished are not all avenged, much less are they that are purposed and begun. In many, that saying of Cicero may take place: Per∣haps it may suffice, that the offender re∣pent of his injury. The Law given to the Hebrews, against very many sins inchoa∣ted against piety, or even against a man's life except judgment, constituteth no∣thing special: because, both in things di∣vine, as being hard to be discerned by us, it is easy to erre; and the violence of anger is capable of pardon. But, when so many wives were easy to be had, to injure anothers bed; or, when possessions were so equally divided, by fraud to en∣rich himself with anothers loss, was not to be endured. For that, Thou shalt not covet, which is in the Decalogue, though, if you consider the scope of the Law (that is the spirituality) it be of larger extent (for the Law would have all to be most pure † 1.1059 in minde also:) yet, as to the ex∣ternal
precept, (or carnal command•…•…nt) it pertaineth to the motions of the minde that are discovered by some fact: which plainly appears by S. Mark the Evange∣list, who hath expressed that command thus, Defraud not: when he had set * 1.1060 down a little before, Do not steal. And in that sense the Hebrew word and the Greek answering it are found, Mich. 2. 2. and elsewhere. Wherefore offences in∣choate are not to be avenged with arms; unless both the matter be of great con∣cernment, and it be gone so far, that ei∣ther some certain mischief (though not yet that which was intended) hath alrea∣dy followed from such an act, or at least some great danger: so that the revenge either may be joined with caution of fu∣ture harm (of which above, when we spake of defense) or maintain injur'd ho∣nour, or withstand a pernicious example.
MOreover, we must know, that Kings, and such as have equal power with Kings, have a right to require punish∣ment not only for injuries committed a∣gainst themselves or their subjects, but for them also that do not peculiarly touch themselves, whatsoever the persons are that do immanely violate the Law of Na∣ture or Nations. For the liberty, by pu∣nishments,
to provide for human society, which at first, as we have said, was in the hand of every man; after Common∣wealths and Courts of justice were or∣dained, resided in the hand of the highest Powers: not properly as they are over o∣thers, but as they are under none. For, subjection to others hath taken away that right. Yea, so much more honest is it to vindicate other mens injuries than ones own, by how much more it is to be feared, that a man in his own, by too deep a re∣sentment, may either exceed a measure, or atleast infect his mind. And upon this score, Hercules was praised by the an∣tients, for setting Countryes at liberty from Antaeus, Busyris, Diomedes, and the like tyrants: travelling o'r the world, as Seneca speaks of him, not to please his humor, but execute justice: being the Au∣thor of very much good to mankind, as Lysias declares, by punishing the unjust † 1.1061. Theseus is likewise praised for cutting off those Robbers, Sciron, Sinis and Procrustes: whom Euripides in his Supplices brings in speaking thus of himself:
So we doubt not, but wars are just up∣on them, that are impious toward their parents (as the Sogdians were, before Alexander * 1.1063 beat them out of this bar∣barity:) upon them that eat † 1.1064 mans flesh (from which custom Hercules * 1.1065 compelld the old Galls to desist, as Diodorus re∣lates:) upon them, that exercise piracy † 1.1066. For, of such barbarians, and wild beasts rather than men, it may be rightly spoken, which Aristides said perversly of the Per∣sians, who were nothing worse than the Grecians; War upon them is natural: and, which Isocrates in his Panathenaick said, The most just war is against the wild beasts, the next against men like unto those beasts.
And so far we follow the opinion of In∣nocentius * 1.1067 and others, who hold that war may be made against them that offend a∣gainst nature * 1.1068: contrary to the opinion of Victoria, Vasquius and others; who seem to require to the justice of war, that the undertaker be harmed in himself or his republick, or els that he have jurisdi∣ction over the other party that is assai∣led. For their position is, that the power * 1.1069 of punishing is a proper effect of Civil Jurisdiction, when we judge it may pro∣ceed even from natural right. And truly, if their opinion, from whom we dissent, be admitted, no enemy now shall have the power of punishment against another enemy; no not after war undertaken, from a cause not punitive: which right nevertheless very many grant, and the use of all Nations confirmeth; not only after the war is done, but even while it endures; not out of any Civil Jurisdicti∣on, but out of that natural right, which was before the institution of Common∣wealths, and now also prevaileth, where men live distributed into families and not into Cities.
BUt here are to be used some Cautions: First, that civil customs, though re∣ceived among many people not without reason, be not taken for the Law of Na∣ture: such as those were, whereby the Graecians were distinguisht from the Per∣sians: whereunto you may rightly refer that of Plutarch * 1.1070; To reduce the barba∣rous nations to more civility of manners, is a pretence to colour an unlawful desire of that which is anothers. Second, that we do not rashly account among things for∣bidden by nature, those things which are not manifestly so, and which are forbid∣den rather by Divine Law: in which rank haply you may put copulations without marriage † 1.1071, and some reputed in∣cests, and usury. Third, that we dili∣gently distinguish between general prin∣ciples, viz. We must live honestly, i. e. according to reason, and some next to these, but so manifest, that they admit no doubt; viz. We must not take from ano∣ther that which is his; and between il∣lations, whereof some are easily known, as, Matrimony being supposed, we must not commit Adultery; others more hard∣ly, as, that revenge which delighteth in the pain of another is vitious. It is here almost as in the Mathematicks, where
some are first notions, or next unto the first; some demonstrations, which are presently both understood, and assen∣ted to; some, true indeed, but not manifest to all. Wherefore, as about Ci∣vil Laws we excuse them that have not had notice or understanding of the Laws; so about the Laws of nature also it is fit they should be excused, whom either the imbecillity of their reason, or evil educa∣tion keeps in ignorance † 1.1072. For, ignorance of the Law, as, when it is inevitable, it takes away the sin; so, even when it is joynd with some negligence, doth lessen the offense. And therefore Aristotle com∣pares barbarians, that are ill bred, and of∣fend in such matters, to them, who have their palats corrupted by some disease. Plutarch saith, There are diseases of the mind, which cast men down from their na∣tural state. Lastly, that is to be added, which I set down once for all, Wars un∣dertaken for the exacting of punishment, are suspected of injustice, unless the acts be most heinous and most manifest, or else some other cause withall concur. That saying of Mithridates, concerning the * 1.1073 Romans, was not perhaps beside the truth; They do not punish the offenses of Kings, but seek to abate their power and majesty.
NExt we come to those offenses which are committed against God: for it is enquired, whether, for the vindica∣ting of them, war may be undertaken: which is largely handled by Covarruvias. * 1.1074 But he, following others, thinks there is no punitive power without jurisdiction properly so called: which opinion we have before rejected. Whence it follows, as in Church-affairs Bishops are said in some sort, * 1.1075 to have received the charge of the universal Church; so also Kings, be∣side the peculiar care of their own states, have lying upon them the care of human society. The chief reason for the negative opinion, that such wars are not just, is this: Because God is sufficient to revenge offenses done against himself; whence it is said, The Gods take care of their own injuries; and, Tis enough that perjun hath God for an Avenger. But, we must know, that the same may be said of other offenses too. For, God, no doubt, is suf∣ficient for the punishing of them also; and yet are they rightly punished by men, no man, contradicting. Some will
reply and say, other offenses are punished by men, as other men are thereby har∣med or endangered. But on the other side we must note, not only those offenses are punished by men, which directly hurt other men, but those also that do so by consequence, as killing one self, bestiali∣ty, and some others. Now, though Reli∣gion by it self prevailes singularly to pro∣cure God's favour, yet hath it also, in hu∣man society, very great effects. And it is not without good reason, that Plato calls religion the fortress of power, and the bond of Laws and vertuous disciplin † 1.1076. Ir∣religion, on the contrary is the cause of all iniquity * 1.1077 Jamblichus hath a saying of Pythagoras: To know God is vertue, and wisedom; and perfect happiness. Hence Chrysippus said, The Law is the Queen of Divine and human things; and Aristotle accounts, among publick cares, that about things divine † 1.1078 to be the chiefest * 1.1079: and the Romans defined skil in Law to be the knowledge of things divine and human; And Philo * 1.1080 describes the art of govern∣ment, the ordering of things private, pub∣lick
and sacred. All which things are not to be considerd only in some one State, (as when Cyrus in Xenophon saith, his subjects would be so much more obedi∣ent * 1.1081 to him, by how much more they feared God:) but also in the common society of mankind. Take away Piety, saith * 1.1082 Cicero, and you take away faith also, and fellowship of mankind, and that most excellent of all vertues, Justice. And here∣of we have an evident argument in Epi∣curus; who, when he had taken away Divine providence, left nothing of justice neither, but an empty name † 1.1083, saying, It had its birth from agreement alone, and endured no longer than common utility lasted, and that we must abstein from things hurtfull to another, only for fear of punishment. His own words to this purpose very notable are extant in Dioge∣nes Laertius. Aristotle * 1.1084 also saw this connexion, who speaks thus of a King; The people will the less fear any unjust u∣sage from their Prince, whom they believe to be religious. And Galen, where he had said, many questions are made about the wor'd and the Divine Nature, without any benefit to mens manners; acknow∣ledgeth the question concerning Provi∣dence to be of very great use both for pri∣vate
and publick vertues. Homer also * 1.1085 saw this, who opposeth to men fierce and unjust, those that are of a religious mind. So Justin out of Trogus praiseth the antient Jews for their Justice mixt with Religion * 1.1086; and Strabo commen∣deth them for being really just and pi∣ous † 1.1087. Furthermore, Religion hath grea∣ter use in that greater society, than in the Civil: because in the Civil State part of it is supplyed by Laws, and an easy execution of the Laws; when, on the contrary, in that great Community, the execution of Law is most difficult, not to be done without arms, and the Laws are very few: and these too have their sancti∣mony chiefly from the fear of a divine power; whence offenders against the Law of Nations are usually said to violate the Divine. Rightly therefore have the Em∣perors said, that the pollution of Reli∣gion perteined to all mens injury, as that wherein all mankind is concerned.
THat we may take a more perfect view of the whole matter, we must note, True Religion, which is common to all Ages, depends especially upon four prin∣ciples. 1. There is a God, and He is One. 2. God is not any of the things vi∣sible, but of a nature more sublime. 3. All human affairs are under Gods providence, and governed by his most righteous Judg∣ment. 4. The same God is Maker of all things without Himself. These four are expressed in so many Precepts of the De∣calogue. For in the first is plainly deli∣verd the Unity of God: in the second, His invisible Nature: therefore to make an Image of him is forbidden, Deut. 4. 12. As Antisthenes † 1.1088 also said: He is not seen with eyes, he is not like to any thing, neither can be known by an Image•…•… and Philo * 1.1089, It is profane to exhibite an Image, by picture or sculpture, of Him that is invisible; † 1.1090 and Plutarch renders this cause, why Numa * 1.1091 took away
Images from the Temples, Because God cannot be conceiv'd but by the mind alone. In the third precept is understood the knowledge and care of human actions, and thoughts too: for this is the founda∣tion of an oath. For, God is call'd a wit∣ness, even of the heart, and, if one de∣ceive; arevenger too: whereby both the Justice of God is signified, and his power. In the fourth is acknowledged the begin∣ning of the world by God's Creation: for the remembrance whereof, the Sabbath † 1.1092 was instituted of old, and that with a singular kind of sanctimony above other rites. For, if one had sinned against other rites, the punishment of the Law was ar∣bitrary, as about forbidden meats; if a∣gainst this, 'twas capital: because the violation of the Sabbath, by the institu∣tion, conteined a denyal of the world's Creation by God. And the world's being created by God tacitly declares his good∣ness, and wisedom, and eternity, and power. Now, from these contemplative notions follow the active, viz. That God is to be honour'd, lov'd, worshipped and obeyed. Wherefore Aristotle said, he that denyeth, God is to be honour'd, or * 1.1093 Parents to be loved, is not to be refuted with arguments, but with stripes. And elswhere. That it is the duty of an honest * 1.1094 man, every where to honour God. More∣over, the verity of these notions, which we call contemplative, doubtless may be
demonstrated, even by arguments * 1.1095 fetch•…•… from the nature of things: amongst which, that is of most force, that sense assures us some things were made; and the things made plainly lead us to something that was not made. But because this reason, and other the like, are not apprehen∣ded by all men, it is sufficient, that, from the beginning to this present, in all parts of the world, all men (a•…•… very few excepted) both of the simpler sort that would not deceive, and of the wiser sort that would not be deceived, have con∣sented to these notions: which consent; in so great variety both of Laws and o∣ther opinions, evidently shews the tradi∣tion propagated from the first men to us, and never solidly refuted; and this alone is enough to procure belief. What we have set down afore, concerning God, agrees with Dion Prusaeensis, where he saith, our perswasion of God is either con∣nate to us and drawn from arguments, c•…•… els acquired by tradition. Plutarch calls it, An antient perswasion, than which no ar∣gument can be more sure, being the com∣mon foundation, upon which is built all pit∣ty.
Aristotle * 1.1096, All men have à perswa∣sion concerning the Gods: and Plato * 1.1097 speaketh also to the same purpose.
WHerefore they are not without fault, who, though they be of duller wit than either to find out or to comprehend certain arguments for these notions, do reject them, seeing they guide to vertue, and the contrary opinion hath no arguments to support it. But, because we treat of punishments, and those hu∣man, a difference is here to be made 'twixt the notions themselves, and 'twixt the manner of departing from them. These notions, That there is a God (one or more, I say not:) and, That he hath care of human affairs, are most univer∣sal, and absolutely necessary to the con∣stitution of Religion, whether true or salse. He that cometh unto God, (that is * 1.1098, He that hath any Religion: for Religion is call'd by the Hebrews an access unto God:) must believe that God is, and that he is a Rewarder of them that seek him † 1.1099. Epictetus: This is the principal
part of Religion to have a right opinion of the Gods, both that they are, and that they do justly order all things. Aelian saith, none of the Barbarians fell to Atheism, but all affirmed, there is a God, and such a one as careth for us * 1.1100. Plutarch in his book of common Notions saith, the no∣tion of God is none, if you deny a Pro∣vidence: For God must be conceived, 〈◊〉〈◊〉 only immortal and blessed, but a lover of men, one that takes care of them 〈◊〉〈◊〉 doth them good. Neither can any ho•…•… (saith Lactantius) be due to God, if he sa∣vour not the godly, nor fear, if he be not an∣gry with the ungodly. And truly, to deny the Being of God, and to deny his Pro∣vidence, if we respect the moral conse∣quence, is all one. Wherefore, upon ne∣cessity, these two notions, through so ma∣ny Ages, have been preserved, even a∣mongst all Nations whom we have known. Hence religion toward God is ascribed by Pompo•…•…ius to the Law of na∣tions * 1.1101: and Socrates in Xenophon saith, To worship God is a Law, which hath force amongst all men. Which also Cicero * 1.1102 af∣firms. Xenophon, in his Convivium, a∣verreth, that both Greeks and Barbari•…•… think all things, present and future, to be known unto the Gods † 1.1103 These notions
therefore, whosoever first begin to take away, as they are wont to be restrain'd in well governd Cities (as Diagoras Me∣lius * 1.1104 was, and the Epicures, who were ejected out of good towns:) so, my judg∣ment is, they may be restrain'd † 1.1105 in the name of human society, which without probable cause they violate. Himerius the Sophister in his action against Epicu∣rus: Do you then punish me for an opini∣on? No, but for impiety. It is permitted to deliver opinions; not, to oppose piety too. The other notions are not so evident: viz. That there are not more Gods than one: That none of the things we see, is God: not the world, not the heaven, not the earth, not the air: That the world is not from all eternity no nor the matter of it, but was made by God. Wherefore, we find the knowledge of these, in process of time, obliterated among many people, and as it were extinct: and so much the more easily, for that the Laws took less care of this part; without which also some religion might after a sort subsist. The Law of God it self (given to that people, whom the Prophets, and prodigies, partly
seen with their eyes, partly deliverd to them by undoubted fame, had instructed with knowledge of these things, neither obscure, nor uncertain) though it most detesteth the worship of false Gods, yet doth it not punish with death all that are convicted of that crime; but them a∣lone, whose facts are aggravated by some * 1.1106 singular circumstance: as, him, who hath first seduced others; the City, which hath begun to worship Gods formerly unknown; him that worshippeth the stars, that he may forsake the whole Law, and withall the service of the true Gods (which is, in S. Paul's phrase, to serve the creature, not the Creator * 1.1107; for 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 there and elswhere often hath an exclusive sig∣nification:) which thing, even amongst Esau's posterity some time was liable to punishment, as we may see, Job 31. 26, 27. him also, who offerd his children to Moloch, that is, to Saturn, Levit. 20. 2. But, the Cananites and the neigh∣boring Nations, that had aforetime fal∣len to evil superstitions, God did not presently judge fit to be punished, but then at last when they had filled up the measure of their iniquities, Genes. 15. 16. So also in other Nations he winked at the times of ignorance about the worshipping of false Gods, Act. 17. 38. Philo indeed hath rightly said, Every mans own Religion seems best to himself, as that which for the most part is not
judged of by reason, but affection: where∣with agrees that of Cicero, No man ap∣proves * 1.1108 any course of Philosophy, but that which himself followeth. He addes, Most men are engaged to a sect, before they are able to judge which is best. Now, as they are excusable, and at least not to be pu∣nisht by men, who having receiv'd no Law delivered from God, worship either the vertues of the starrs, or of other natu∣ral things, or spirits, whether in images, or in living creatures, or somewhat else; or also the souls of such as have excelled in vertue and benefits done to mankind, or certain incorporeal intelligences; especial∣ly if they neither have devised such wor∣ships themselves, nor do therfore forsake the worship of the most High God † 1.1109; So are they to be numbred among the injurious rather than erroneous, who either to Caco∣demons, whom they know to be such, or to the names of vices, or to men whose life hath been very vitious, do appoint and exhibite divine honours. And so are they, who worship the Gods with the blood of innocent men; from which cu∣stom, that he compeld the Carthaginians to abstein, is the praise of * 1.1110 Darius the Persian King, and of Gelo the Syracusian Tyrant. Plutarch also relates, that certain Barbarians, that worshipped their Gods with human sacrifices, were about to be punished by the Romans: but when they excused themselves by antiquity of the
custom, they sufferd nothing, but only were forbidden to do so any more.
WHat shall we say of those Arms which are carried against any people for this cause, that they will not entertain Christian Religion proposed to them? I will not now enquire, whether it be proposed in such a quality, and in such a manner, as it ought. Suppose it be: two things we say are to be noted. The first is this; that the truth of Chri∣stian Religion (to wit, so far as it super∣addes to natural and primitive Religion things not a few) cannot be perswaded by arguments meerly natural, but depends upon the history both of Christ's Resur∣rection, and of the miracles wrought by himself and his Apostles: which is a mat∣ter of fact, of old indeed confirmed by ir∣refragable testimonies; but, of old; so that this is a question of fact, and that now very antient. Whence it happens, that this doctrin cannot throughly sink in into the minds of such as, now first, hear it, un∣less it be seconded by the secret assistances of God; and these, as they are not given to them that have them for a reward of any, work, so if they be denyed to any or
any, or granted more sparingly, this comes to pass for causes, not unjust indeed, but for the most part unknown to us and therefore by human judgment not punishable. Per∣tinent here is the Canon of the Toletan Council: The precept of the Holy Synod * 1.1111 is, that henceforth none be * 1.1112 compelled to believe. For God will have mercy on whom he will, and whom he will he hardeneth. For it is the manner of Scripture, when the causes of things are secret to us, to as∣sign the will of God for the cause of them † 1.1113. The next thing to be noted is, that Christ the Author of the new law his will and pleasure is, that no man should be drawn to receive his Law by the pu∣nishments of this life, or fear of them * 1.1114; in which sense that of Tertullian is most true, The new law doth not vindicate it self by the revenging sword. In that an∣tient book, entitled the Constitutions of Clement, it is said of Christ: He hath left unto men the freedom of their own choice, not punishing them with temporal death, but calling them to account in the world to come. Athanasius * 1.1115; The Lord
not compelling, but permitting to the will its own liberty, said unto all, If any one will come after me; and to the Apostles, Will ye also go away † 1.1116? Chrysostom on the same place of John: He asketh, whether they also will go away: which are the words of one laying aside all force and ne∣cessity. Nor is that in the Parable of the Marriage any objection, that the servants are commanded to compel some to come in, Lu. 14. 23. For as in the parable it self that word compel signifies the in∣stance † 1.1117 of the Messenger, so also in the moral of it: in which sense a word of the same signification is taken Lu. 24. 29. and no otherwise Matth. 14. 22. Mark. 6. 45. Gal. 2. 14. Procopius in the secret part of his history saith, Justinian's * 1.1118 or∣der was blam'd by wise men, that he com∣pell'd the Samari•…•…ans by force and threats to profess the Christian Religion: he addes also the incommodities ensuing thence, which may be read in the Autho: himself.
BUt they that subject to punishments, the Teachers or Professors of Christianism for that cause, certainly do that which is contrary to reason it self. For, there is nothing in the Christian disciplin (I con∣sider it here by it self, not as it is mixt with any corruption) which is hurtfull to hu∣man society, yea, there is nothing which is not profitable to it. The matter is ap∣parent, and the Aliens are constreined to acknowledge this truth. Pliny saith, the Christians bound themselves by Sacra∣ment, not to commit theft, nor robbery, nor break their trust. Ammianus † 1.1119 saith, nothing is taught in that Religion, but what is just and gentle. And it was a By-word among the people, Caius Seius is a good man, but that he is a Chri∣stian * 1.1120. Nor is this excuse to be admit∣ted, All innovations are to be feared, es∣pecially
Assemblies: for, neither are do∣ctrins to be feared, though new, if they lead to all honesty, and to obedience to∣ward superiors; nor ought Assemblies of honest men to be suspected, and of such who seek not hiding places, unless they be compell'd. Rightly may be applied here, what Philo † 1.1121 relares Augustus said of the Jewish Synagogues: They are not Bacchanals, or Conventicles to aisturb the peace, but schools of vertue. They that rage against such, are themselves in such a condition, that they may be justly pu∣nished: which is also the opinion of A∣quinas. And for that cause did Constar∣tin * 1.1122 war against Licinius, other Empe∣rors against the Persians * 1.1123; though these wars pertein rather to the Defense of the Innocent, of which hereafter, than to the exaction of punishment. * 1.1124
AS to them that embrace the Law of Christ for true, but doubt or mistake in some things, which either are beside the Law, or in the Law seem to have an am∣biguous sense, and have been expounded by the antient Christians not after one manner, they that persecute such do very unjustly: as appears both by what we have said afore, and by the old example of the Jews. For these having a Law esta∣blished by punishments of this life, did yet never punish the Sadduces, who re∣jected the article of the resurrection, a point indeed most true, but in that Law not deliverd but obscurely, and under a veil of words or things. And what if it be a more grievous error, and such as be∣fore equal Judges may easily be revinced by authority of Scripture or consent of Fathers? Here also is to be considered, how great is the force of a settled opini∣on, and how much every man's judgment is darkned by Affection to his own Sect, an evil, as Galen saith, incurable. Ori∣gen speaketh appositely: More easy 'tis for a man to put off any other customs, how much soever he is affixed to them, than to lay aside his accustomed opinion † 1.1125. Adde, that the estimation of this fault depends upon the measure of illumination, and
other dispositions of the mind, which are not in the compass of mans knowledge. He at last is an Heretick in Austins * 1.1126 iudg∣ment, who, for some temporal profit, and especially for glory and principality, ei∣ther is the Father, or the follower of new doctrius † 1.1127. Let us hear Salvian discour∣sing of the Artans: They are Hereticks, but know it not: Hereticks in our judg∣ment, not in their own; for they do so much think them selves to be Catholicks, that they asperse us with the stain of heresy. Wherefore we are the same to them, that they are to us. We are sure they do injury to the divine generation, because they make the Son less than the Father. They think us injurious to the Father; because we believe them to be equal. The truth it with us, but they presume it is with them. The honor of God is with us, but they suppose what they believe is for the honour of the Deity. They are inofficious, but this is to them the chiefest office of Religion. They are impious, but this they think to be true piety. They err then, but they err with a good mind * 1.1128, not out of hatred but love of God, believing that they honour and af∣fect the Lord. Although they have not a right faith, yet they esteem this to be
perfect charity: and how they are to be punisht, for this error of their opinion, at the day of Judgment, none can know but the Judge † 1.1129. In the mean therefore, as I conceive, God lends them patience, because he sees them, though not right believers, yet erring through affection of a pious opi∣nion. Concerning the Mantchees, let us hear him who stuck long in their mire, Augustin; Let them rage against you, who know not with what labour Truth is found, and how hard it is to avoid errors. Let them rage against you, who know not how rare and difficult it is to overcome carnal phantasms by serenity of a pious mind. Let them rage against you, who know not with what groanes and sighs it is effected, that in any sort God may be un∣derstood. Lastly, let them rage against you, who are deceived with no such error, as they see you are deceived with. For my part, indeed I cannot rage against you, with whom, as once with my self, I ought now to bear, and treat you with as much patience, as my friends shewed to me, when I went astray in your opinion, mad and blind. Athanasius * 1.1130 sharply inveighs a∣gainst the Arian heresy † 1.1131, because it first
used the power of the Judges against Dis∣senters, and endeavoured to draw unto it self by stripes and imprisonment, whom i•…•… could not prevail with by perswasion: and so, saith he, it manifesteth it self, how far it is from piety, and from the wor∣ship of God, respecting, as I take it, that which is read, Gal. 4. 29. * 1.1132 Hilary hath a like passage in his Oration to Constan∣tin. In Gallia long since, were condem∣ned by the judgment of the Church, the Bishops, who took order, that the Pris∣cillianishs might be convicted with the sword: and in the East the Synod was condemn'd, which had consented to the burning of Bogomilas, Wisely said Plato; It is the fittest punishment for one in error, * 1.1133. to be made to learn † 1.1134.
MOre justly shall they be punished, who are irreverent and irreligious to∣ward those whom they think to be Gods † 1.1135 And this was alleged among other cau∣ses of the Peloponnesian war * 1.1136 between the Athenians and Lacedemonians, and by Philip of Macedon * 1.1137 against the Phocen∣ses; of whose sacrilege Justin * 1.1138 thus; It was athing that ought to be expiated by the forces of all the world. Hierom on the sixt of Daniel: So long as the vessels were in the Idol-temple of Babylon, the Lord was not angry (for they seemed to have consecrated the things of God to divine worship, though by an erroneous opinion they mistook the Deity:) but after that they pollute the divine things by human uses, presently punishment waits upon the sacrilege. And truly Austin is of opi∣nion, that God advanced the Empire of the Romans, because, though in a false way, they were so studious of religion; and, as Lactantius speaks, performed the chiefest business of man, though not in truth, yet with a good intention. And we have said above, that perjuries, even by false Gods, are revenged by the true God. He is punished, said Seneca, be∣cause * 1.1139 he did it as to God: his opinion
makes him liable to punishment. So al•…•… do I take that other saying of Seneca: li divers places the violators of Religion on * 1.1140 punisht diversly; but every where they are punisht: and that of Plato like∣wise, * 1.1141 where he condemnes them as ca∣pitall offenders.
WHen the question is about Commu∣nication of punishment, either we mean partakers † 1.1142 of the fault, or others. They that are partakers of the fault, are punished not so much for anothers as for their own offense. They then, that com∣mand a vitious act, that give consent re∣quired * 1.1143, that aid † 1.1144, or entertain * 1.1145, or any other way partake in the crime: that give counsel † 1.1146, that praise and encourage † 1.1147; that when by right properly so called they are bound to forbid, do not forbid * 1.1148; or,
when they are bound by like right to help the sufferer of injury, do not help; that do not disswade, when they ought to dis∣swade; that conceal the fact, which they were bound by some Law to make known: all these may be punisht, if there be found in them such malice as may suffice to the merit of punishment, accor∣ding to the rules set down afore.
THis point will be more cleered by examples. As another Community so also the Civil is not to answer for the fact of particular men without committing or omitting somewhat them∣selves. S. Augustin saith well; We must make a difference between the pro∣per sin of every one, and the common sin of the people, which is committed by a multitude disposed to it with one heart, and one will. Hence it was in the form of leagues; If there be a failing by publick Counsel † 1.1149. The Locrians in Livy make remonstrance to the Roman Senate, that
the defection did not proceed from any publick determination. In the same Au∣thor Zeno interceding for the Magnetes to T. Quintus and the Legats with him, besought them with tears, That the mad∣ness of one might not be imputed to the City, but that the Doer might run the peril of his own actions. And the Rhodians before the Senate separate the publick cause from the private, saying, There is no City which hath not sometimes wicked Ci∣tizens, and a rude multitude alwayes. So, neither is a Father bound by the fault of his children, nor the Master of his ser∣vants, nor other Governours, except some∣what that is vitious adhere to them. Now, among the wayes whereby Governouis of other men become guilty, there are two of especiall use, and require our diligent consideration: Sufferance and Receipt. Of sufferance we determine thus; He that knows a fault to be done, that is able and bound to forbid it and doth not, is guilty. Cicero against Piso: Nor is the difference much, especially in a Consul, whether himself by pernicious Laws and wicked speeches vex the Commonwealth, or suffer others to vex it. Brutus to Cicero: You will say then, Do you make me guilty of anothers fault? Yes truly, if it were in you to hinder it † 1.1150. So, in the Army of
the Grecians, where Agamemnon him∣self and the rest were under the Common Council, it is right, that the Grecians were punisht for the offences of their Princes; because it was in their power to compel * 1.1151 Agamemnon to render the Priest his daughter. It is in Livy, The Kinsmen of King Tatius beat the Embassadors of the Laurentes: and when the Laurentes plea∣ded the Law of Nations, Affection to his friends prevailed more with Tatius: thus he drew upon himself the punishment due to them. Here is proper that of * 1.1152 Salvian concerning Kings. The Highest power which can restrain the highest sin, doth seem to approve it, if knowingly it be per∣mitted. † 1.1153 The Veientes and Latins excuse themselves in Livy, that their subjects helped the enemies of Rome without their knowledge. But the excuse of Teuca Queen of the Illyrians is not accepted, saying, Piracy was not exercised by her∣self, but by her subjects; For she did not forbid them. So, of old, were the Scyri∣ans condemned by the Amphictyones * 1.1154 for suffering some of their men to exer∣cise Piracy. Now, tis easily presumed, the things are known, which are conspi∣cuous, which are frequent. That which is
done by many, can be unknown to none, saith Dion Prusiensis. The Aetolians are grave∣ly * 1.1155 reprehended by Polybius, that, when they pretended to be the friends of Phi∣lip, they did nevertheless suffer their men openly to act hostility, and preferred un∣to honours the principal actors of it.
NExt, let us consider of Receipt. Pu∣nishments, as we have said, may be required naturally by any one, to whom no like offense can be objected. Com∣monwealths being instituted, it was a∣greed, that the faults of particulars, which do properly belong to their own society, should be left to themselves and their Ru∣lers, to be punisht or dissembled at their pleasure. Howbeit, so full a right they have not, in offenses which in some sort belong to the Society of mankind; which other Commonwealths and their Rulers have a right to prosecute; just as in every Commonwealth, any one in some cases, may commence an action: much less have they that full power in those offenses, whereby another state, or the Governour of it is peculiarly wronged; and for which therefore He or She, for their dignity of security, have right to require punishment,
according to what we have said above. This right then, the Commonwealth in which the delinquent lives, nor the Ru∣ler thereof, can justly hinder. But, see∣ing Commonwealths are not wont to per∣mit another State to come armed within their bounds to exact punishment, nor is that expedient, it follows, that the Com∣monwealth, wherein he lives that is found † 1.1156 guilty, ought to do one of the two, either punish him according to his desert, being called upon; or leave him to the judgment of the offended State. For, this is that which is meant by * 1.1157 delivering up, so often mentioned in histories † 1.1158. So the other Israelites require of the Benja∣mits to deliver up the wicked men, Jud. 20. The Philistins of the Hebrews to deliver up Samson to them as an Evil∣doer, Jud. 15. So the Lacedemonians waged war against the Messenians, be∣cause they deliverd not up a certain man that had slain some Lacedemonians: and at another time for not delivering them that had ravished the Virgins sent to of∣fer sacrifice. So Cato gave his vote, that Caesar should be deliverd to the Germans, for warring against them without just cause. So the Galls required the Fabii should be deliverd to them * 1.1159, for fighting against them. The Romans demanded of the Hernici the spoilers of their fields, and of the Carthaginians, Aniilcar, not that Noble Captain, but another that stirred
sip the Galls: and afterward they deman∣ded Annibal: and Ingurtha of Bocchus, in these words in Sallust; So shalt thou 〈◊〉〈◊〉 once free us from the sad necessity of pro∣secuting thee for thy error, and him for his villany. By the Romans themselves were given up those that had done violence to the Carthaginian Embassadors, and those that had done the like to the Embassa∣dors of the Apolloniatae. The Achaians required of the Lacedaemonians, that they should be yielded, who had assalted Lan∣vic, adding, except they were yielded, the League seemed to be violate. So the Athe∣nians * 1.1160 by their Herald proclamed, if any one had lyen in wait for Philip, and had fled to Athens, he was to be yielded up. The Boeotions exacted of the Hippotenses, that they should be yielded up that had killed Phocus. All which examples yet, are so to be understood, that the people or King be not strictly bound to deliver up the party, but, as we have said, either to deliver him up, or to punish him. For so we read the Eleans to have waged 〈◊〉〈◊〉 upon the Lacedaemonians, because they did nothing to them that had done the Eleans injury: that is, they did neither punish, nor deliver up the guilty persone for, it is a disjunctive obligation. Some times, choice † 1.1161 is left to them, for the
better satisfaction, that demand the of∣fenders.
P. Mutius Scaevola's opinion was for * 1.1162 the negative: because, whom the peo∣ple had given up, they seemed to have ex∣pell'd him out of their City, as when they interdicted him fire and water. Brutus is for the affirmative, and Cicero after him: which opinion is the truer, yet not pro∣perly for that Argument which Cicero * 1.1163 brings, because, as donation, so dedition cannot be understood without acception. For, the act of donation hath not perfe∣ction, but by consent of two parties: but to deliver up, of which we speak here, is nothing els but to permit a Citizen to be under the power of another people, to do with him what they please. Now, this permission, neither gives, nor takes away any right; it only takes away the impe∣diment of execution. Wherefore, if the other people use not the right granted, He who is given up will be in that condition that he may be punisht by his own peo∣ple (which was done upon Clodius yiel∣ded * 1.1164
to the Corsi; and not received by them;) or not punisht, as there are ma∣ny faults, wherein either way may, be ta∣ken. The right of the City (as also other rights and goods) is not lost, by the fact it self, but by some decree or judgment, un∣less some Law will have the fact esteemed for a judged thing; which cannot here be said. (And after this manner goods also, if they be deliver'd up and not accepted, will remain whose they were.) But if the dedition be accepted, and afterward, by some chance the party return, he will not be a Citizen, except by a new favour: in which sense, true is the answer of Me∣destinus. * 1.1165
WHat we have said of punishing, a giving up guilty persons, pertains not only to those that have always been the subjects of him with whom they are found; but to them also who after the crime committed have fled any Whither Nor do those so much-spoken-of rights of suppliants, or examples of places of re∣fuge * 1.1166 hinder. For these profit such as a•…•… oppress'd with causeless hatred, not suc•…•… as have committed that which is injuri∣ous to human society, or to other men
Gylyppus the Laconian in Diodorus Sicu∣lus, * 1.1167 speaking of that right of suppliants, saith, They that introduced these rights at first, meant the unfortunate should expect marcy; the injurious, punishment. After: These men, if by the unjust desire of that which is anothers, they have fallen into these evils, must not accuse fortune, nor impose on themselves the name of suppli∣ants. For that, by right, belongs to them that have an innocent minde, & adverse for tune † 1.1168. But the life of those men ful of wicked acts, shuts up * 1.1169 against them all places of refuge, and leaves no room for compassion. Cicero hath a saying out of Demosthenes: We must shew compassion to those, whom fortune, not their * 1.1170 own evil deeds have made miserable. So, in the most wise Law, when any one had been stain by an Axe slipping out of ano∣thers hand, the Cities of refuge were open; but the most holy Altar it self was no pro∣tection for them that had stain an inno∣cent
man deliberately, or had troubled the Common wealth. Which Law Philo ex∣plaining saith: Unholy men have no enter∣tainment * 1.1171 in the Holy place. And no other∣wise the more antient Greeks. It is rela∣ted, that the Chalcidenses refus'd † 1.1172 to * 1.1173 yield Nauplius to the Achivi: but the cause is added; for he had cleared him∣self from their objections. There was a∣mong the Athenians an Altar of mercy, mentioned by Cicero and others; but for whom? Only for the miserable and di∣stressed. Aristides saith, it was the pro∣per praise * 1.1174 of the Athenians, that they were a refuge and comfort to all afflicted men every where † 1.1175 Lycurgus * 1.1176 the Ora∣tor relates, that one Callistratus, who had done a capital fault, advising with the Oracle received answer, that if he went to Athens, he should have right, and that, in hope of impunity, he fled to the most holy Altar there; and notwithstanding, was put to death by the City, most obser∣vant of her Religion; and so the Oracle was fulfill'd. Tacitus * 1.1177 disallows the cu∣stom in his time received through the
Grecian Cities, to protect the wickedness of men, in reverence to the Gods. Princes indeed (saith the same Author) are like Gods: but neither do the Gods hear the prayers of suppliants, except they be just * 1.1178. Such then are ei∣ther to be punisht, or yielded, or re∣moved at least. So the Cymaei in * 1.1179 Herodotus † 1.1180, when they nei∣ther would deli∣ver Pactyes the Persian, nor durst retein him, permitted him to depart to Mitylene. Demetrius Pharius, who being conquerd in war had fled to Philip King of Macedon, was requir'd of that King by the Romans. Perseus King of * 1.1181 Macedon, in his defense to Martius, spea∣king of those that were said to have con∣spired against Eumenes: So soon as, being admonisht by you, I found the men in Ma∣cedonia, I commanded them away, and charged them never to return into my do∣minion † 1.1182. The Samothracians declare to Evander, who had lyen in wait for Eu∣menes, that he should quit the Temple. But this right of requiring to punishment, them that had fled their Countrey, in these last ages, in most parts of Europe, is used only in those crimes which do touch the publick State, or are of a very hainous
nature. Lesser faults are wont to be past by with mutuall dissimulation, unless † 1.1183 in the conditions of the League it were otherwise provided, and a more close a∣greement made. This is also to be known, that Robbers and Pirats, who are grown so strong that they have made themselves formidable, are rightly received and de∣fended, as to punishment; because it concerns mankind, that, if they can∣not otherwise, they may be recalled from their evil course by being assur'd of impu∣nity; and any people or Governour of people may, if they be able, effect so good a work. This is to be noted too, that sup∣pliants are defended till their cause be tryed * 1.1184; and if that whereof they are ac∣cused be not forbidden by the Law of Na∣ture or Nations, the cause must be judged out of the Civil Law of the people whence they come.
WE have seen how the fault pas∣seth upon the Rulers from the Subjects, either antient or new∣ly come: the fault will like wise pass upon
the subjects from the highest Power, if the subjects consent to the crime, or do any thing by the command or perswasion of the highest power, which they cannot do without transgression; of which we shall more fitly speak below, where we shall examin the duty of subjects. More∣over, between the whole and the parts, the Community and single persons, the fault is communicated; because, as S. Augustin saith, The Community and the particulars go together, that being made of these; and the whole being nothing else but the parts, in one. Howbeit, the fault perteins to the severals that have consen∣ted, not to them that were overcome by the votes of others. For, the punishments of the whole, and of the parts, are di∣stinct. As the punishment of particular men sometime is death, so it is the death of a Commonwealth to be overthrown: which is, when the Civil body is dissol∣ved. Single persons are by way of pu∣nishment brought under slavery (as the Thebans by Alexander the Great, those excepted, who contradicted the decree of deserting his society;) So also a City un∣dergoes Civil slavery, being reduced in∣to a province. Single persons lose their goods by consiscation; so, from a City are taken away things common, as walls, shipping, ammunition and the like. But, that particular men for the offence of the Community, without their consent,
should lose the things that are proper to them, is injust, as Libanius rightly shews in his Oration concerning the sedition of Antioch. The same Authour approves the doing of Theodosius † 1.1185, who had punished a common fault by the interdiction of the Theater, Baths, and title of Metropolitan.
HEre occurres an eminent question, Whether punishment for the fault of a Community may always be exacted. So long as the Community lasteth, it seems it may: because the same body remains, the parts succeeding one another. But, on the other side, is to be noted, that some things are attributed to a Community first and by it self, as, to have a treasury, Laws, and the like: some things, by deri∣vation from the particulars. For so we call a Community learned, and valiant, which hath most such. Of this sort is Me∣rit or Desert; for, primarily it agrees to * 1.1186 the particulars, as having understanding, which the Community by it self hath not. Those then being extinct, by whom Me∣rit was derived to the Community, the
Merit it self also is extinguished, and therefore the debt of punishment, which we have said cannot consist without Me∣rit. It seemeth to me, saith Libanius, * 1.1187 you may account it a sufficient punishment, that none of the offenders are now alive. And the judgment of Arrian's good, con∣demning Alexander's † 1.1188 revenge upon the Persians, those being long since dead, who had offended Greece. Concerning the destruction of the Branchidae by the same Alexander, this is the judgment of Curtius: Had these things been done a∣gainst the Authors of the treason, it would not seem cruelty, but a just revenge: Now, the Children pay for the fault of their fore∣fathers, when as they were so far from be∣traying Miletum to Xerxes, that they ne∣ver saw the place. Like unto this is the judgment of Arrian in another place a∣bout the burning of Persepolis in revenge of what the Persians had done at Athens: To me Alexander seemeth to have done unwisely: for this was no true revenge upon those Persians, who were dead be∣fore. That of Agathocles is ridiculous to every man, who answererd the Ithacenses complaining of their damages, and told them, that the Sicilians had once sufferd more from Ulysses. And Plutarch in his book against Herodotus saith, it is not probable, the Corinthians would revenge the injury received from the Samians, af∣ter three generations. Nor is it a sufficient
defense of such deeds, which we read in Plutarch, of the late revenge of God. For the right of God is one thing, and the right of men another, as we shall shew presently. Neither, if it be just that chil∣dren should receive honours and rewards for their Fathers good deeds, is it therefore just that they should be punisht for their evil. For, such is the matter of a benefit, that it may be without injury conferr'd on any; not so, of punishment.
WE have spoken of the ways whereby community of punish∣ment happens from community of fault. It remains that we see, whether, the fault being not communicated, the punishment may. For the right under∣standing whereof, and that things really distinct may not be confounded by like∣ness of words, we must note, first, that the loss directly given, and by consequence, are to be distinguished. Directly given I call that, whereby somewhat is taken a∣way from one, to which he hath a proper right; By consequence, that, whereby it comes to pass that one hath not, what o∣therwise he should have had: to wit, the condition ceasing without which he had
not right. An example is in Ulpian: If I * 1.1189 have opened a Well in my grouod, whereby it hath happened that the veins coming to you are cut off: He saith, my work hath not done damage to you, in that wherein I have used my own right. And elswhere he saith, there is much difference 'twixt bearing damage, and being depriv'd of the gain which hitherto one hath recei∣ved. And Paulus the Lawyer saith * 1.1190: It is preposterous to be said masters of ri∣ches, before we have gotten them. So, the parents goods being confiscate, the chil∣dren truly feel the incommodity, but it is not properly punishment; because those goods were not to be theirs, unless pre∣served by the parents to their last breath. Which is rightly noted by Alphenus, when he saith, By the Fathers punish∣ment, the children lose that which should descend from him to them; but those things remain entire, which were given, not By the Father, but by nature, or some other way. So Cicero writeth, * 1.1191 that the children of Themistocles were in want, nor thinks he it unjust, that the children of Lepidus should bear the same calamity. And that, he saith, is old, and of all Cities. To which custom yet, the later Roman Laws added much tempera∣ment. * 1.1192 So, when by the fault of the ma∣jor part, which, as we have said, su∣steins the person of the whole, the whole is in the fault, and for the same loseth
Civil liberty, walls, and other things, the particulars who are innocent do also bear the loss; but in that thing, which per∣teined not to them but by the whole. Se∣condly, we must note, some evil is some∣times imposd upon one, or some good is taken away, by occasion indeed of some fault, yet not so that the fault is the im∣mediate cause of that action, as to the right of doing. So he, who by occasion of anothers debt hath engaged himself, suffers evil * 1.1193; but the immediate cause of his obligation is his promise. For, as he who is become surety for a Buyer, is not properly bound by the bargain, but by his promise: so also he who is bound for a delinquent, is not held by the delinquen∣cy, but by his engagement. And hence it is, that the evil to be born by him re∣ceives its measure, not from the fault of the other, but from the power which himself had in promising. Consequent whereunto is this, that (according to the opinion which we believe to be the truer) no man can, by his becoming surety, lose his life: because we determine, No man hath such right over his own life, that he can take it from himself, or engage it to be taken away by another: though the an∣tient Romans and Greeks were of another mind in this matter: and therefore thought sureties were bound * 1.1194 over to capital judg∣ment,
(as it is in a verse of Ausonius, and appears by the famous history of Damon and Pythias;) and also often put Hostages to death, as we will relate elswhere. What we have said of life, ought to be under∣stood of members too; for, a man hath not right over them, but for preservation of the body. Now, if exile, if loss of mo∣ney were in the promise, and by the o∣thers fault the forfeiture was made, the surety shall bear the loss, which yet in him, to speak exactly, will not be a pu∣nishment. The like is also in that right which one hath depending upon the will of another, as the right of that which is precarious, respect being had to the do∣minion of the things; and the right of pri∣vate men, respect being had to the emi∣nent dominion, which the Common-wealth hath for the publick good. For, if some such be taken from one by occasion of anothers fault, punishment is not pro∣perly therein, but execution of an ante∣cedent right in the Taker. So, because Beasts are not properly guilty of a fault, when a beast is put to death (as in the Law * 1.1195 of Moses, for copulation with man) that is not truly punishment, but the use of mans dominion over the beast.
THese distinctions premis'd, we shall say, None free from the fault can be punisht for the fault of another. The true reason whereof is not, that alleged by Paulus the Lawyer, that punishments are constituted for the amendment of men (for, it seems, an example may be given, without the person of the offender, yet in that person that is neer him, as shall be said presently;) but because obligation to punishment ariseth from merit; and merit is personal, having its origi∣nal from the will, than which no∣thing is more ours, whence it is called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Hierom saith, Neither are the vir∣tues, * 1.1196 nor the vices of parents imputed to their children. Augustin: God himself should be unjust, if he should condemn any * 1.1197 one guiltless. Dion Chrysostom, when he had said, the posterity of Transgressors were accursed by the Athenian sanction added to Solon's Laws, concerning God's Law addeth; This doth not, like that, punish the children and posterity of of∣fenders: but every one is the author of his own calamity. Pertinent is the Pro∣verb, Noxa caput sequitur: and that say∣ing of the Christian Emperors, Punish∣ment must remain there, where the fault is; and, Let sins light only upon their * 1.1198
authors, and the fear go no farther than the offense, Philo * 1.1199 saith, It is just, that the pu∣nishments should rest; where the sins do, reprehending the custom of some Nations, that put to death the innocent Children of Tyrants or Traytors † 1.1200. Which custom Dionysius Halicarnassensis reprehendeth also, and shews the iniquity of the reason pretended, viz. That children will be like their parents: for that is uncertain, and an uncertain fear ought not to be suffici∣ent for the death of any. There was one so bold as to dictate this to Arcadius a Christian Emperor, that the children, in whom the examples of their Fathers crime are feared, should be involved in the fa∣thers punishment; and * 1.1201 Ammianus re∣lates how the Issue was slain, being but very young, lest it should grow up after the parents pattern. Neither is fear of re∣venge * a more just cause. Nothing is more uniust, saith Seneca † 1.1202, than that one should inherit his fathers hatred. Pau∣sanias, the Generall of the Greeks, touched not the children of Attaginus * 1.1203, author of the Thebans desection to the Medes; These, saith he, had no finger in the plot. M. Antonius in a letter to the senate: Ye shall pardon the son in law and wife of * 1.1204 Avidius Cassius (he had conspir'd against him:) And why do I say pardon, when they have done nothing? God indeed, in
the Law given to the Hebrews, threatens, he will punish the iniquity of the fathers upon the children; But He hath a most full right of dominion, as over our goods, 〈◊〉〈◊〉 over our lives too, being his gift, which without any cause, and at any time, he can take away from any one at his plea∣sure. Wherefore if, by an immature and violent death, he cut off the children of Achan, Saul, Jeroboam, Ahab; upon * 1.1205 them he uses the right of dominion, not of punishment * 1.1206; and, by the same act, pu∣nisheth the parents in a more grievous manner. For, whether they survive (which the Divine Law had very much respect unto, and therefore extendeth not those threats beyond the children of the third and fourth Generation, Exod. 20. because a mans Age may be lengthen•…•… to a sight of them; and it is certain, the parents are punisht with such a specta•…•…, yea, it is more grievous to them, * 1.1207 th•…•… what they bear in their own persons:) 〈◊〉〈◊〉 whether they do not live so long, yet 〈◊〉〈◊〉 die in that fear is no small punishm•…•… The hardness of the people, saith Te•…•…∣lian, brought in a necessity of such re•…•…∣dies, that in contemplation of their post•…•…∣ty † 1.1208 they might frame themselves 〈◊〉〈◊〉 bedience. But withall we must note, G•…•… doth not use this more heavy vengeance except against offences committed p•…•…∣perly to his own dishonour, as false 〈◊〉〈◊〉 ships, perjurie, sacrilege. Nor did 〈◊〉〈◊〉
Greeks think otherwise; For, the crimes which were supposed to make their poste∣rity obnoxious (which they call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 * 1.1209) are all of that sort; upon which argument, Plutarch discourseth eloquently, in his book of the late Revenge of God. Ae∣lian * 1.1210 hath an Oracle of Delphi to this effect:
Inevitable Vengeance from above Falls on the wicked, though ally'd to Jove; Stil imminent it is o'r them and theirs, Successively entail'd upon their Heirs.It is spoken there of sacrilege † 1.1211; and it •…•…s confirmed by the history of the Tholo∣•…•…ane gold in Strabo and Gellius. Like sen∣•…•…ences we had afore of perjury. But to proceed, though God hath threatned •…•…hus, yet doth he not always use that •…•…ight, especially if some eminent vertue * 1.1212 •…•…hine forth in the Children, as we may •…•…e, Ezech. 18. and is proved by some •…•…xamples in the now-cited place of Plu∣•…•…arch. And, sith in the new Covenant •…•…ore openly than in the old, are decla∣•…•…ed the punishments, which remain for •…•…e wicked after this life; therefore in that Covenant is there no commination † 1.1213 ex∣•…•…ant exceeding the persons of the Trans∣•…•…ressors; to which purpose, though less •…•…lainly, is that foresaid passage of Eze∣•…•…iel. Now for Men, they may not imi∣tate
that vengeance of God: nor is the reason alike: because, as we have said, God, without intuition of the fault hath right over the life; men have not, but up∣some great crime, and such as is the per∣sons own. Wherefore, that same Divine * 1.1214 Law, as it forbids parents to be put to death for their children, so forbids chil∣dren to be put to death for the deeds of their parents. Which Law pious * 1.1215 Kings, as we read, have fo•…•…lowed, even in the case of Treason; and the same Law is very much praysed by Josephus and Philo, as a like Egyptian Law by Isocrates, and a Roman Law by Dionysius Halicarnas∣sensis † 1.1216. Plato hath a saying, which Calli∣stratus the Lawyer expresseth in this sense, † 1.1217 The crime or punishment of the father can instict no blot upon the son. He addes the cause. For every one bears that lot, which his own doings have drawn for him; nor is he made successor of another's crime. Cicero saith * 1.1218; Would any Com∣monwealth endure that Law-giver, by whose Ordinance the son or grandchild is condemned, if the Father or Grandfather be a Delinquent? Hence it is, that, to p•…•… to death a woman with child, was ac∣counted a wicked thing, in the Laws 〈◊〉〈◊〉 the Egyptians, Greeks, and Romans † 1.1219 Moreover, if those human Laws be un∣just, which do slay the children for t•…•… parents offenses, more unjust surely 〈◊〉〈◊〉 the Law of the Persians and Macedor∣ans,
devoting also and destroying the lives of kinsmen * 1.1220, to the end the offen∣ders against the King might fall the more sadly, as Curtius speaks: a Law, saith Ammianus Macellinus * 1.1221, that excelled all the Laws in the world, in cruelty. Notwithstanding all this, it is to be no∣ted, if children of traitors have any thing, or can expect any thing, to which they have no proper right, but the right is in the people or King, that may be taken from them by a certain right of dominion, the use whereof, yet, may redound to the punishment of those that have offended. Hither is to be referd that of Plutarch, touching the Children of Antiphanes a traitor, that they were kept back from ho∣nours * 1.1222, as at Rome the children of those that were proscrib'd by Sulla. So, in the foresaid Law of Arcadius, that is tole∣rable for the children; Let them not be advanced to any honour, nor to any offices. What we have said of punishing children for their parents faults, may be applyed al∣so to a people truly subject (for a people not subject, through their own fault, that is, for their negligence may be punisht, as we have said:) if it be enquir'd, whe∣ther that people may suffer for the evil deed of their King, or Governour. We do not mean, if the peoples consent be ad∣ded † 1.1223, or any deed of theirs by it self wor∣thy
of punishment, but we speak of that contract, which springeth from the nature of that Body, whose Head is the King, and members were the rest. God indeed, for David's sin, destroyed the people with pestilence, and truly (as David thought) being innocent; but, it was God, who had most full and absolute right over their lives. Mean while, the punishment was not the peoples, but Da∣vid's; for, as a Christian writer saith, It is the most bitter punishment to Kings * 1.1224 that do amiss, to see their people suffer. This is all one, saith the same Author, as if he, that hath done ill with the hand, should be Beaten on the back. So Plu∣tarch, in the like argument, compares it to a physicians method, in curing one part, to open a vein in another. Why men may not do so, we have said afore. The same is to be concluded of punishing particulars (in things proper to them) that have not consented, for the offence of the Society. And lastly, the cause why an Heir being liable to other debts, is not liable to the punishment † 1.1225 of the decea∣sed, is, for that the Heir bears the pers•…•… of the deceased, not in respect of me•…•… which are merely personal, but of goods * 1.1226
which are engaged. Dion Prusaeensis: What the Ancestors owed, their posterity must pay: for they have not refused the Inheritance.
POlybius, who first noted the diffe∣rence, * 1.1227 calls the former 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Pre∣tences, because they are wont open∣ly to be shewed (Livy several times useth the word Title;) the later he stileth by the general name 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Causes † 1.1228 So, in the war of Alexander against Darius, the Pretence was Revenge of Injuries which the Persians had done the Greci∣ans, the Cause was desire of Glory, Em∣pire, and Riches: whereto was added great Hope of facility conceived from the ex∣peditions of Xenophon and Agesilaus. So,
the pretence of the second Punick war was * 1.1229 the Controversy about Saguntum, the cause was the indignation of the Carthaginians for the Agreements, which the Romans in unequal times had extorted from them, and their courage raised by the prosperity of their affairs in Spain, noted by Polybius, Likewise, Thucydides judgeth the true cause of the Peloponnesian war to have been the Athenians growing Greatness, which brought them into suspicion with the Lacedemonians; but the pretence was the controversy of the Corcyreans, Poli∣deans and other things: where yet, be promiscuously useth the termes, * 1.1230 pretence and cause. There is the same difference in the Oration of the Campanians to the Ro∣mans, when they say they fought against the Samnites, in word for the Sidicines, in deed for themselves; because they per∣ceived, when the Sidicines were consu∣med, the fire would pass on to them. And Livy relateth, how Antiochus took arms against the Romans, in shew, for the death of Barcilla, and some other matters; is truth, because he had great hope of suc∣cess by reason of the decayed disciplin of the Romans. So Plutarch observeth, it was not truly objected to Antony by Cicero, that He was the cause of the Civil war, when Caesar, resolved upon a war, had on∣ly taken the pretext from Antony † 1.1231
SOme, upon neither of these causes, are carried into wars, greedy of dangers, as Tacitus speaks, for dangers sake. The faults of these men exceed every hu∣man * 1.1232 name, and is by Aristotle termed 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, serity. Of these, Seneca: I may say, it is not cruelty but ferity, which takes pleasure in blood: we may call it madness; whereof there be sundry sorts, and none more evident than that which runneth to the slaughter of men, and cut∣ting them to pieces. To which sentence, very like are those words of * 1.1233 Aristotle: Very cruel indeed is he to be accounted, who * 1.1234 makes his friends his enemies, out of gree∣diness to fight and shed blood. Dion Pru∣saeensis: Without cause to be carried into wars and fights, is meer madness, that seeks mischief to it self. And the forecited Seneca saith, No man is so inhuman, as to wast human blood, or very few.
BUt the greatest part of those that go to war have suasory causes, and those, ei∣ther without justifick causes, or with them. Some care not at all for justisick
causes: of whom that may be said, which is in the Roman Lawyers, He is a Rob∣ber * 1.1235, who being asked of the cause of pos∣sessing, brings no other, but that he doth possess. Aristotle, of those that perswade to war: Men, that oftentimes regard not at all, whether it be just or no, to subdue their harmless neighbours. Such a one † 1.1236 was Brennus, who said, Let the strongest * 1.1237 take all. Such a one was Annibal in Si∣lius, Whose right was his sword. Such also was Attila; and such are all, that use these words:
No matter how the war begins, If we can bring it to our ends.To these men, you may fitly apply that of Augustin: To wage war against the neerest, and thence march on to others, and out of a desire of rule to conquer Nation•…•… that provoke you not, what is it to be na∣med, but Great Robbery? In Cicero * 1.1238 we read: The height of mind, which is disco∣verd in dangers and labours, if it want ju∣stice, is so far from vertue, that 'tis ra∣ther immanity † 1.1239, and an enemy to all hu∣manity. Andronicus Rhodius; Who, for to gain much, receive whence they ought not, these are call'd evil, impious and unjust;
such as are tyrants * 1.1240, and the Plunderers of Cities. Others do allege causes, as it were, justifick; which being weighed in the scale of right reason are found unjust: and it appears, as Livy speaks, not a con∣tention about right, but an offer of vio∣lence. Many Kings, saith * 1.1241 Plutarch, use the two names of Peace and war, not to that which is just, but to that which is expedient.
AMong the unjust causes of war is fear taken from neighboring power. Which fear, we have said above, is not suffici∣ent. For, that Defense may be just, it ought to be necessary: it is not so, unless we be sure, not only of the power of a neighbour, but of his will: sure, by that certainty, which hath place in matter of morality. Wherefore, their opinion is not to be allowd, who make it a just cause of war, if a neighbour, hindred by no agree∣ment, build a Castle on his own ground, or some other fortification, which may
sometime do us hurt. For, against such fears contrary fortifications in our land, and the like remedies, not warly forces, are to be provided. Unjust therefore were the wars of the Romans upon Philip of Ma∣cedonia, * 1.1242 of Lysimachus upon Dèmetrius, unless there were some other cause. I am very much pleased with that in Tacitus, of the Cauchi: A people among the Ger∣mans most noble, who maintain their Greatness by their Justice; without covt∣tousness, without impotency; quiet and se∣cret: They never provoke their neighbors to war, never make inrodes upon others, •…•…r depopulations: And this is a principal argument of their valour and might, that they attain not their superiority by being injurious: yet are they all ready for war, and if need be, they have an Army pre∣sent: Great store of Foot and Horse: and famous, even in times of peace † 1.1243
NEither doth Utility make equal right with necessity. So, where other wives enow are to be had, the denyall of some Match cannot give cause of war; which yet Hercules took against Euritus, Da∣rius against the Scythians † 1.1244 Nor is the Desire of a people to change their seat, a just cause of war, that leaving moorish & desert Land, they may possesse a more fruit∣full soil: which was the case of the old Germans, as Tacitus relates. No less un∣just it is, to challenge by the title of a new found Land, what is held by ano∣ther; though he that holds it be wicked, think amiss of God, or be of a dull wit. For, Invention is of those things that be∣long * 1.1245 to none; neither is moral virtue, or religious, or perfection of understanding required to dominion. This indeed see∣meth probable, if there be any people altogether destitute of the use of reason, such have no dominion, but out of chari∣ty only is due unto them what is necessa∣ry for life. For, what is said of the sup∣port * 1.1246 of Dominion in behalf of infants and mad-men by the Law of Nations, per∣tains to those nations, with whom there is commerce of Covenants. Such are not they that are wholly mad, if there be any such, of which I do justly doubt. Unjust∣ly therefore did the Grecians call the
Barbarians enemies to themselves, as it were naturally, by reason of their diver∣sity of manners, and haply because they seem'd inferiour in wit. Yet, for some grievous sins, and such as oppugn naturè and human society, we deny not but do∣minion may be taken away. Moreover, Liberty * 1.1247, whether of single persons, or of Commonwealths, as if it did natural∣ly and always agree to all, cannot yield a right to war † 1.1248. For, when liberty is said to agree by nature to a man or people, that is to be understood of the right of Nature preceding all human fact, in this sense * 1.1249, that one is not a servant by na∣ture, not that he hath a right never to be∣come a servant; for in this sense no man is free. Here is pertinent that of Albutius: No man is born free, no man is born a ser∣vant: these names were impos'd after∣ward upon every one by fortune. And that of * 1.1250 Aristotle: It is the effect of Law, that one is free, another serve•…•…. Wherefore they that upon lawful cause are come into ser∣vitude, whether personal or civil, ought to be content with their condition, as al∣so Paul the Apostle teacheth, Art thou
call'd to servitude? Let it not vex thee. * 1.1251 Farther, it is unjust, to subdue by arms any, as if they were worthy to serve, whom Philosophers sometimes call natu∣rally servants. For, suppose a thing be profitable for one, it doth not therefore presently follow, that 'tis lawfull for me to force it on him. For, they that have the use of reason, ought to have a free ele∣ction of things profitable and unprofi∣table, unless another have gotten some right over them. The case of Infants is quite otherwise, whose government, seeing they have not power * 1.1252 to moderate their own actions, nature committeth to the occupant, or some fit person.
I Would scarce adde, that it is an unwise title which some attribute to the Roman Emperour, as if he had a right of com∣manding over nations most remote and hitherto unknown; unless Bartolus, long accounted the Prince of Lawyers, had ventured to pronounce him an heretick that denyes it; forsooth, because the Emperour sometime stiles himself Lord of the world † 1.1253; and because, in Scripture, that Empire, which later Writers call Ro∣mania * 1.1254, is call'd by name of the word, † 1.1255 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. So is that of the Poet, The Ro∣man Conquerour held all the world, and
many like sayings, spoken by way of ex∣cess or excellence. And in the same Holy Scripture, Judaea alone comes oft under the title of the world * 1.1256: in which sense is to be taken that old saying of the Jews, that the City of Jerusalem is seated in the midst of the earth, i. e. of † 1.1257 Judea: as in the midst of Graecia Delphi, likewise call'd the navil of the world. Nor ought any one be mov'd with Dante's argu∣ments whereby he endeavours to prove, the Emperour hath such a right, because it is expedient for mankind. For the com∣modities hereof are equalld with incom∣modities. And as a ship may be made of such a greatness which cannot be governd; so may the number of men and distance of places be so great, that it cannot admit the government of one. But, grant it is * 1.1258 expedient, there follows not a right of Empire, which ariseth not but but either from consent, or punishment. Nay, the Roman Emperour now hath not right over all that of old perteined to the people of Rome. For, many things, as gotten by war, so were lost by war; some by cove∣nant, and some by dereliction passed into the right of other nations or Kings † 1.1259 Again, some Cities fully subdued once, afterward became subject only in part, of only confederate unequally. All these ways, either of losing or changing right, are or force, no less against the Roman Emperour, than any other.
THere have been also, who would as∣sert, * 1.1260 the Church hath right over the Nations of the hitherto unknown part of the earth: when yet the Apostle Paul himself hath openly pronounced, He had * 1.1261 no power to judge those that are with∣out. And whatsoever right of judging be∣longed to the Apostles, though it pertai∣ned also, in its way, to earthly things, yet was it of a heavenly (that I may so speak) not of an earthly quality; to be exerci∣sed, not by the sword and scourge, but by the Word of God generally proposed, and applied to peculiar circumstances, by the exhibition of the seals of divine grace, or the denyal of them, as it was for the good of every one: and lastly by vengeance, not natural, but above nature, and ther∣fore proceeding from God; such as ap∣peared in Ananias, Elymas, Hymenaeus •…•…nd others. Christ himself, the spring of •…•…ll Ecclesiastical power, and whose life is •…•…he exemplar proposed to the Church, as •…•…uch, said, his Kingdom was not of this world, that is, not of such a nature as o∣•…•…her * 1.1262 Kingdomes: adding, otherwise after the manner of other Kings he would use the service of soldiers. But now, although he had desired Legions, he would have •…•…alled for, not those of men, but of An∣gels.
And whatsoever he did by right of his power, he did it not by human but divine vertue, even then when he cast the buyers and sellers out of the Temple. For, the scourge was not an instrument, but a sign of divine anger; as at other time spittle and oil a sign healing * 1.1263, not a me∣dicine. Augustin upon that place of John: Hearken yee Jews and Gentiles, Circumcision and uncircumcision; Herkin all ye Kingdoms of the earth: I hinder not your domination in this world † 1.1264. My Kingdomn is not of this world: Do not ye fear most vainly, as Herod the Great fea∣red, when he heard of the birth of Christ, and slew so many Infants, hoping to destroy him, being more cruel in his fear than in his anger. My Kingdom, saith he, is not of this world. What would you more? Come unto the Kingdom, which is not of this world. Come by believing, and do not rage by fearing. Paul, among other things, forbids a Bishop to be a striker. To rule by a necessity imposed, i. e. which proceeded from human force, is the part of Kings n•…•… of Bishops, said Chrysostom † 1.1265. And 〈◊〉〈◊〉 * 1.1266
where, We have not power granted us to restrain men from offences by authority of our sentence: i. e. such as conteins in it a powerful execution by a ruling or mili∣tary hand, or a deprivation of any human right whatsover * 1.1267. Hence it sufficient ap∣pears, that Bishops, as such, have no right to reign over men after a human way. Hierom † 1.1268, comparing a King and Bishop together, saith, The one rules the unwilling, the other the willing. But, whether Kings themselves may wage war, in the way of punishment, against those that reject Christian Religion, is above inquired.
THis also I will add (not in vain, bu•…•… because comparing new occurrences with old, I foresee much mischief, except care be taken:) that war is not justly grounded upon a hope conceiv'd out of some exposition of Divine Prophecies † 1.1269, For, beside that Oracles not yet fulfill'd can hardly be interpreted with any cer∣tainty without a prophetical spirit * 1.1270, the times even of things certain may be hid from us. And moreover, a prediction, without express command of God, giveth no right: for, by wicked men, or unjust actions, God doth oft-times permit the things he hath foretold to come to pass.
ANd this is also to be known, if one owe a thing, not by proper justice, but by another vertue, as liberality, favour, mercy, charity; that, as it cannot be re∣quired in the Court, so neither can it be demanded by arms. For to both of these ways it is not sufficient, that the thing re∣quired ought to be done by some moral reason, but moreover it is needfull there be in us a certain right unto it: which right sometimes divine and human Laws do give also about the dues of other ver∣tues, and then a new kind of debt ariseth perteining unto Justice. But when that is wanting, war upon this cause is unjust; as, that of the Romans upon the King of Cyprus for his ingratitude. For, he that hath given a benefit, hath no right to exact a recompence; otherwise, it were not a benefit, but a contract.
ONe thing more is to be noted, It often * 1.1271 falls out, that a war may have a just cause, and yet the action receive some stain from the minde of the doer: either for that some other thing, not unlawful
by it self, doth more the mind than the right; (to wit, desire of honour * 1.1272, or some profit, whether private or publick, which is expected from the war considerd apart from its justifick cause:) or else, for that an affection plainly unlawfull is with him, as the joy of one pleasing himself in anothers evil without respect of good. So Aristides in his second De so∣cietate saith, the Phocenses perished de∣servedly, but Philip did not well when he destroyed them, not being studious of re∣ligion which he pretended, but ambi∣tious to enlarge his Empire. Profound am∣bition and avarice, as Sallust speaks, is one cause of war, and that an old one. And Tacitus saith, Gold and Power are the prin∣cipal causes of wars * 1.1273. Whither you may also refer that of S. Augustin † 1.1274; Desire of hurting, Cruelty of revenging, an un∣peaceable and unplacable mind, fierceness of rebelling, lust of domineering, and the like, these are the things that in wars are justly blamed. But these, where a just cause is not wanting, do indeed argue a crime, * 1.1275 yet do they not make the war properly unjust; whereupon, neither is restitution due for the same.
IT is most true, which Aristotle hath * 1.1276 written, that there is not so much certi∣tude in moralls, as in the Mathematicks: because, the Mathematicks separate forms from all matters, and the forms, most part, are such, that they have nothing * 1.1277 interposed, as between straight and croo∣ked there is no medium; But in moralls, even the least circumstances varie the matter, and the forms here are wont to have something † 1.1278 between them, with such latitude, that the access is neerer sometimes to this extreme, sometimes to that. For so, twixt that which ought to be done, and that which ought not to be done, is interposed that which may be done, but is neerer, now to this, now to the other part: whence ambiguity ariseth often, as in the dusk air, or in warm wa∣ter. And this is that which Aristotle saith, Oftentimes it is hard to judge, which is to * 1.1279 be preferd. Andronicus Rhodius saith; It is to discern that which is truly just, from that which seemeth so.
THis is principally to be observed; that, although a thing be just in it self, b•…•… done by one, who having weighed all, thinks it unjust, the act in vitious, For, this is that which the Apostle S. Pa•…•… saith, * 1.1280 Whatsoever is not of faith is for. Where faith signifies the mindes judg∣ment about any matter. For, God ha•…•… given unto men a judging faculty, as a guide unto their actions, by contemp•…•… whereof the minde becomes brutish. Now, it often comes to pass, that the Judgment shews no certainty, but sticks; and 〈◊〉〈◊〉 this hesitation cannot be cleared by at∣tent consideration, that if Cicero must be followed: Their precept is good, that ser∣bid to do any thing, which you doubt * 1.1281, whether it be right or wrong. The He∣brew Masters say, Abstein from a doubt∣full matter. But this cannot have place where one must do one thing of the two and it is doubted of both, whether it b•…•… right; for then a man may chuse the which seemeth to him the least evil. Fo•…•… that always, where the choice is ine•…•…∣table, puts on the appearance of good, O•…•…
evils take the least, saith Aristotle: and * 1.1282 Cicero likewise: and Quintilian, The ligh∣ter evil obteins the place of good, when se∣veral evils are compar'd together.
BUt, for the most part, in doubtfull mat∣ters after some examination the mind sticks not in the midst, but is drawn this way, or that, by Arguments * 1.1283 taken from the matter it self, or from the opinion a man hath of other men pronouncing sentence about it. For, here also is true that of Hesiod, It is most excellent to be able to direct oneself: next, to follow the good direction of another † 1.1284. Arguments from the matter are deduced from the causes, effects, and other adjuncts. But to the right discerning of these, there is need of * 1.1285 some experience and skill; they that have not this, to conform their active judg∣ment rightly, must hear the Counsils of wise men. For, those things, saith Ari∣stotle, are probable, which seem so to all, or to most, or at least to wise men: and to these again, either all, or most, or the more excellent. And this way of judging is most used by Kings, who have not lei∣sure
themselves to enter into the depth of learning;
* 1.1286 The company of wise men brings Learning and Wisedom unto Kings.Aristides saith, As in questions of fact that is accounted for truth, which is sup∣ported by most and most sufficient wit∣nesses; so those sentences are to be fol∣lowed, which are grounded upon most and most worthy authorities. Thus the old Ro∣mans entred into war, not without con∣sulting the College of the Feciales insti∣tuted for that end; nor the Christian Em∣perours, scarce ever, without advising with the Bishops, that if any thing did hinder in point of Religion, they might be admonisht of it.
NOw, it may fall out in many Contro∣versies, that on either side probable arguments may shew themselves, whe∣ther intrinsecal to the matter, or from au∣thority. In this case, if the matter be of smal moment, the choice, which way so∣ever it be, seemeth to be free from fault But, if it be a weighty question, as con∣cerning the life and death of a man, here because of the great difference between
the things to be chosen, the safer way is to be preferred * 1.1287. Therefore, it is better to acquit the guilty than condemn the in∣nocent. The writer of the problems that bear the name of Aristotle saith so * 1.1288, and addes the reason which we have al∣ready given: For, where one doubts, he must chuse that part, wherein the offense is less. War is a thing of the greatest conse∣quence, from which very many evils are wont to follow even upon the innocent: wherefore, when judgments differ, we must incline to † 1.1289 peace. And, three ways there be to keep Controversies from brea∣king forth into war. The first is Confe∣rence. Being there are two kinds of discip∣ation, saith Cicero, one by conference, the other by force; and that is proper to man, this to beasts: we must fly to the later, if we cannot use the former * 1.1290. Phaneas in Li∣vy saith; To avoid a necessity of war, men do willingly remit many things, which can∣not be forced from them by arms † 1.1291. Mar∣donius
in Herodot us blames the Grecians in this respect: Who being of one language should have determined their Controver∣sies by Commissioners, and not by battell Coriolanus in Halicarnessensis: If one de∣sire not anothers, but seek his own, and upon denial make war, all men confess it to be just. In the same Halicarnessensis King Tullus: Arms must decide, what words are not able to compose. Vologeses in Tacitus: I had rather preserve my Ance∣stors possessions, by equity than blood, by a fair tryall than by force. And King Theo∣doricus: * 1.1292 Then only is it profitable to go to war, when Justice can find no place among our Adversaries. Another way to avoid war, among them that have no common Judge, is Compromise. It is not lawful, saith Thucydides, to invade him as injurious, who is ready to submit to an Arbitrator. So, concerning the Kingdom of Argos, Adrastus and Amphiaraus made Eriphyles their Judge, as Diodorus relates. Con∣cerning Salamis, three Lacedaemonians were chosen judges between the Athe∣nians and Megareans. In the now-cited Thucydides, the Corcyreans signify to the Corinthians their readiness to debate their quarels before the cities of Peloponnesus, which they should agree upon. And Pe∣ricles is commended by Aristides, for his willingness to have differences arbitrated that war might be avoided. And Philip of * 1.1293 Macedon is praised by Isocrates, for that
he was ready to permit the Controversies he had with the Athenians to the arbi∣tration of any impartial City. Plutarch saith, this was the principal office of the Feciales among the Romans, not to suffer things to come to a war, till all hope of ob∣teining a quiet end was lost. Strabo of the Druids of Gallia: They were, of old, arbi∣trators between enemies, and often pacified them when they were entring into battell. The Priests in Iberia performed the same * 1.1294 office, as the same Author testifies. Now, Christian Kings and Commonwealths † 1.1295 are most of all bound to take this course to avoid war: for, if to avoid the sen∣tences of Judges that were aliens from true Religion, certain Arbitrators were con∣stituted both by Jews and Christians; and that is given in precept by Paul; how much more is the same to be done, that war, which is a far greater incommodity, may be avoided? So Tertullian some∣where argues, that a Christian must not follow the wars, to whom it is not lawful, so much as to go to Law. Which yet must be understood, (according to what we have said elswhere) with some tempera∣ment. And, both for this and for other causes, it were profitable, yea in some sort necesary to be done, that some Assem∣blies of Christian powers were held, where the controversies of others might be deter∣mined by Judges that are unconcerned; yea, and a course taken to compell the
parties * 1.1296 to entertain peace upon equal termes; which use also was made of the Druids † 1.1297 among the Galls, as Diodor•…•… and Strabo have delivered. And we read, the French Kings, about division of the Realm, permitted the judgment to their peers. The third way is by Lot * 1.1298; which is to this purpose, commended by Du•…•… Chrysostom in his second Oration against Fortune, and long before him by Salomen Prov. 18. 18. Somewhat neer to Lot is Single Combat; the use whereof seems not altogether to be refused, if two, whose Controversies otherwise would involve whole multitudes in very great mischiefs, † 1.1299 be ready to sight one with the other. For, it seems, if not rightly to be done by them, nevertheless acceptable to the peo∣ple on both sides, as a less evil. Meti•…•… in Livy speaks to Tullus after this man∣ner; Let us take some way, whereby, with∣out much slaughter and blood of bo•…•…h parts, it may be determined, which peo∣ple shal be superiour. Strabo † 1.1300 saith, this was the old custom of the Grecians; and Aeneas in Virgil * 1.1301 saith, it was meet, that the matter should be ended on this wise 'twixt him and Turnus. Certainly, a∣mong other customs of the ancient Franks * 1.1302 this is at large commended by Agath•…•…
in his first book: whose words are wor∣thy to be added; If any Contraversies happen to arise between the Kings, they all muster their force's, as it were to deter∣mine the matter by battell, and they march forth into the field. But, so soon as the Armies have faced each other, they lay a∣side anger and embrace concord, perswa∣ding their Kings, to put their differences to triall of Law; or, if they will not do that, to enter into single combat, and bring the matter to an end, only with their own danger. Because, it is neither agree∣able to equity, nor the orders of their Countrey, that they, for their proper ha∣treds, should weaken or overthrow the com∣mon good. Wherefore presently they dis∣band, and the causes of their quarels be∣ing taken away peace is reestablished, and muital security assured. So great care of Justice and love of their Country is in the Subjects: so gentle and yielding a disposi∣tion is in the Kings. Now, although, in a doubtfull case, both parts are bound to seek condition, whereby war may be a∣voided, yet is he more bound, who re∣quireth * 1.1303, than he who possesseth. For, that in an equal case, the condition of the possessor is the better, is a point not only of the Civil but of the Natural Law. And here is further to be noted, that War can∣not lawfully be undertaken by him, who knoweth he hath a just cause, but hath not sufficient proofs, whereby he may con∣vince
the possessor of the injustice of his possession: The reason is, because he had no right to compell the other to depa•…•… out of his possession. And lastly, when both the right is ambiguous, and neither possesseth, or Both equally, there he is to be thought unjust, who rejecteth the offered division of the thing in con•…•…∣versy.
OUt of the premises may be determi∣ned that Question agitated by ma∣ny, whether War, respect being had of them that are the principal Movers of it, may on both sides be just. For, the va∣rious acceptions of the word just are to be distinguished † 1.1304 A thing is called just, either from the cause, or according to the effects. From the cause again, either in a special acception of justice, or in that ge∣neral use of the word, as all rectitude is so called. The special acception is agai•…•… divided into that which perteineth to the work, and that which perteineth to the worker. For the worker himself sometime may be said to do justly, as oft as he doth not unjustly, though that which he doth * 1.1305 be not just: So Aristotle rightly distin∣guisheth to do unjustly, and to do the which is unjust. War cannot be on both sides just, in the acception special and re∣lated
to the thing it self, as a sute in Law neither; because a moral facultie to con∣traries, to wit, both to act and to hinder, is not granted by nature. But, that nei∣ther of the parties warring may do unjust∣ly, is possible; for no man doth unjust∣ly, but he that also knows he doth an unjust thing: and many are ignorant of that. So may a sute be followed justly, that is, with an honest mind, on both sides. For, many things, both in point of right and fact, whence right ariseth, are wont to escape men. In a general acception, just is wont to be called that which is without all fault of the Doer. And many things without right are done without fault through ignorance inevi∣table. An example whereof is in them, who observe not the Law, which without their fault they are ignorant of, after the law it self is promulged, and time suffi∣cient by it self for knowledge hath pas∣sed. So also in Law-sutes it may happen, that both parties may be free from inju∣stice and all other blame, especially where both parties, or either, goeth to law not in his own but anothers name, to wit, by the office of a Tutor or Guardian, whose duty is not to desert any right though un∣certain. So Aristotle saith, in contentions * 1.1306 of controverted right, neither is 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, wic∣ked. With whom Quintilian agrees, when * 1.1307 he saith it may come to pass, that an Ora∣tor, that is, a Good man may plead on
both sides. Yea, Aristotle also saith, a Judg•…•… may be said to judge justly two wayes, •…•…∣ther * 1.1308 when he judgeth plainly as he oug•…•… or, when he judgeth according to 〈◊〉〈◊〉 judgment & conscience. And in anothe•…•… place: If one hath judged through ig•…•…∣rance, * 1.1309 he hath not done unjustly. Never∣theless, in war, it can hardly fall out, be there will be at least some temerity and defect of love, by reason of the weight of this business, which in very deed is s•…•… great, that, not content with probab•…•… causes, it requireth grounds most eviden•…•…. But, if we take just according to some ef∣fects of right, it is certain, war on b•…•… sides may be just in this sense, as will ap∣pear by what we shall say of publick •…•…∣lemn war in the next part. And in like manner a Sentence not given according to right, and Possession without right, have some effects of right.
THough it seemeth not properly a pa•…•… of our work, our Title being of th•…•… Right of war, to declare what other ver∣tues give in charge concerning it, neve•…•…∣theless, on the By, we must meet 〈◊〉〈◊〉 this errour of such as think, where 〈◊〉〈◊〉 Right is manifest enough, war presen•…•…y
either must, or alwayes may lawfully be undertaken. For, the contrary is true, that for the most part it is more pious and * 1.1310 honest to depart from ones right. That we may honestly forsake the care even of our own life, that we may provide, as much as lies in us, for the eternal life and salvation of another, hath been shewed afore. Which is especially the du∣ty of Christians, therein imitating the most perfect example of Christ, who dyed * 1.1311 for us, while we were his enemies. This doth much more excite us, not to pursue our worldly interests with so much hurt of other men, as Wars do carry with them. That for every such cause war is not to be waged, even Aristotle and Polybius do * 1.1312 advise. Nor was Hercules commended by the Antiens for commencing war against * 1.1313 Laomedon and Augias, because they paid him not for his labour. Dion Prusaeensis in that Oration which is of War and Peace, saith, it is not only enquir'd, whether They, against whom we intend war, have done us injury, but whether the injury be of such moment that it may deserve a war † 1.1314.
TO omit punishments, many things do exhort us. Consider how many faults Fathers connive at in their Chil∣dren. Whereof Cicero hath a dissertation in Dion Cassius. A Father, saith Se•…•…∣ca * 1.1315, except many and great offenses have overcome his patience, except he hath more to fear than to condemn, will not pre∣ceed to extreme severity. Not much dif∣ferent is that saying of Phineus in Di•…•…∣dorus Siculus; No Father willingly takes revenge of his sons, unless the greatness of their wickedness exceed the natural affe∣ction of parents toward their children: And that of Andronicus Rhodius: No Father casteth off his son, that is not be∣yond measure wicked. Now, whosoever will punish another, takes upon himself as it were the person of a Governor, that is, of a Father. † 1.1316 In this respect Au∣stin saith to Marcellinus: Fulfill the of∣fice
of a pious Father, You that are a Christian Judge. Julian the Emperour commendeth the saying of Pittacus, Who preferred pardon before punishment. Liba∣nius in his oration of the sedition at An∣tioch saith, He that will be like unto God, must not so much rejoice in punishment, as in pardon. Sometimes such are the circum∣stances of things, that it is not only lau∣dable to abstain from ones right, but due, in respect of that dilection which we owe even to our enemies, whether considered in it self, or as the most holy Gospel-Law requires it. So, we have said, there are some for whose safety, though they assalt us, we ought to desire death, in as much •…•…s we know them either necessary or very profitable for the common good of men. If Christ will have some things neglected, that sutes may be avoided, much more may we believe he would have greater things neglected, for the avoiding of war, by •…•…ow much more hurtfull war is than a •…•…ute at Law. It is not only liberal, saith S. Ambrose, * 1.1317 but for the most part commo∣dious
for a good man to remit somewh•…•… of his right. Aristides perswades the Cities to a concession in things of less mo∣ment. He addes the reason: For it is lau∣dable, you know, even in private men, to be of a facile nature, and bear some less rather than contend. Xenophon in the s•…•…t of his Greek history; It is the part of wise men, not to go to war, no not for Causes of great importance. And Apollonius in P•…•…∣lostratus is of the same mind.
COncerning Punishments, it is our Du∣ty, if not as Men, surely as Chri∣stians † 1.1318, easily and willingly to forgive trespass•…•…s done against us, as God forgives us in Christ, Ephes. 4. 32. Not to be an∣gry, saith Josephus * 1.1319, for the mortal of∣fenses of the guilty, approacheth neer to the divine nature. Seneca of a Prince * 1.1320; Let him be far more exorable in his own th•…•… other mens wrongs. For as he is not of a noble mind, who is bountiful out of an•…•…∣thers stock, but he that out of his o•…•… store giveth to another: so will I call hi•…•… Gratious, not, that is gentle in anothers injury, but, who being spurred to reveng•…•… his own wrongs, restraineth himself; w•…•… thinks it Nobleness to suffer injuries, being in the highest power, and that nothing i•…•… more glorious than a Prince pardoning his
Offender † 1.1321. Quintilian: We will perswade a Prince to desire more the praise of Hu∣manity, than the pleasure of Revenge. Cicero sets it as the fairest flower in Cae∣sar's Garland, that he used to forget no∣thing but injuries. Livia in a speech to Augustus in Dio: Most are of opinion, that Rulers ought to punish offenses against the Common weal, but d•…•…ssemble and con∣nive at those against themselves. Amo∣ninus the Philosopher in his Oration to the Senate * 1.1322, Revenge of his own wrong is never pleasing in an Emperor, which, though very just, seemeth very sharp. Ambrose in his Epistle to Theodosius: You have forgiven the Antiochians the wrong they did your Majestie. And The∣mistius in the praises of the same Theodo∣sius to the Senate; It is the part of a good Prince, to overcome the injurious, not by revenge, but beneficence. The magnani∣mous man, according to Aristotle, is not 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, mindfull of injuries. Which is thus in Cicero: Nothing is more worthy of a Brave man, than placability and clemen∣cy. Eminent examples of this excellent ver∣tue are proposed to us in the Holy Scrip∣ture, Moses, Num. 11. 12. and David, 2 Sam. 16. 7. And this hath place, then especially, when either we also are consci∣ous to our selves of some offense, or that which is done against us proceedeth from some human and excusable infirmity, or it sufficiently appears, that he is penitent
who hath done amiss. There is a mean (saith Cicero) to be observed in revenge and punishment: and I cannot tell, whe∣ther it be not enough, that he repent of his fault who hath provoked us † 1.1323. A wise man (saith Seneca) will remit many things: many delinquents, unsound, yet not uncurable, he will peserve.
WE have shewed cause to abstein from war out of that love and pi∣ty which we either owe to our very enemies, or rightly bestow upon them: We are now to consider what rea∣son there is from that care we owe to our selves and ours † 1.1324. Plutarch in the life of Numa saith, After the Feciales had de∣termined, that the war might be under∣taken justly, it was consulted by the Se∣nate, whether it were for their good. In a certain Parable of Christ's it is said, If one King intendeth war against another, he will first sit down (which is the posture of those that seriously advise about a mat∣ter)
and consider with himself whether he with his ten thousand be able to enter battell with his enemy that leadeth twen∣ty thousand. And, if he find himself too weak, before the enemy enter his territo∣ries, he will send Messengers of Peace. So did the Tusculans * 1.1325, by enduring all things, and refusing nothing, obtain their peace of the Romans. In Tacitus we read, In vain did they seck a cause of war against the Aeduans: Being commanded, to bring money and arms, they also brought provision freely. So Q. Amalasuntha * 1.1326 pro∣tested to the Embassadors of Justinian, she would by no means make war. A temperament also, or mid-way may be used, as Strabo relates was done by Syr∣mus King of the Triballians, who denyed Alexander the Macedonian entrance in∣to the Iland Peuce, and withall honou∣red him with Gifts: that he might shew his denyall to proceed from a just fear, and not from hatred or contempt of his Greatness. What Euripides said of the Grecian Cities may be sitly applyed to any other. When they give their votes for war, no man thinks how imminent death is to himself; but every one destines ruine to another. But if, in the Council, Their own Funerals had been presented to their eys, Grecia had not been so mad to de∣stroy it selfe with war †. It is in Livy:
Propose to thy * 1.1327 meditation, and consider thy own strength, and the power of fortune, and the various * 1.1328 chances of war. And in Thucy∣dides; The un∣expected Acci∣dents in war must be thought upon, before thou dost engage.
THey that deliberate, deliberate pardy about the ends, not the last but the intermediate, partly about those things which lead thither. The end is ever s•…•…e Good, or at least the Avoidance of some evil, which may be in the stead of good. The things that lead to the one or other, are not desired by themselves, but as they lead thither. Wherefore in Debates, are to be compared, both the ends among them∣selves, and the effective faculty of those things that lead to the end, to produce the same. (For, as Aristotle hath rightly * 1.1329 noted, 〈◊〉〈◊〉 which bring forth action are of two sorts, from that which is good, and from that which is possible.) Which comparison hath three Rules. The first is, If the thing under debate, seemeth to have,
in a moral estimation, equal efficacy to Good and to Evil, it is so to be chosen, if the Good hath somewhat more of good, than the Evil hath of evil. Whence An∣dronicus Rhodius, where he describes the magnanimous man, saith, He will under∣go dangers, not for every cause, but for the greatest. Another Rule is, If the Good and Evil seem equal, which may proceed from the thing in question, that thing is eligible, if the efficacy to Good be greater than to evil. The third, If both the Good and the Evil seem to be une∣qual, and the efficacy of the things no less unequal, that thing will be eligible, so that the efficacy to good be greater, be∣ing compar'd which the efficacy to evil, than the Evil it self is, being compar'd to the Good * 1.1330. This have we set down af∣ter a more exact manner. But Cicero dis∣courseth to the same purpose in a plainer way, when he saith, We must take heed we do not offer our selves to perils without cause, than which nothing can be more foolish: wherefore in running hazards, the custome of Physicians is worthy of our imitation: They apply gentle reme∣dies to light diseases, but in the more grie∣vous are compelld to use more perillous and doubtful Medicines: Wherefore, he saith, it is a wise mans part to take the * 1.1331 opportunity, and the rather, if he may obtain more good by success of the mat∣ter, than he can fear evil upon the mis∣carriage.
In another place, Where no * 1.1332 great emolument is possible, and a little mischance will be hurtfull, what need is there to run the hazard. Dion Prusaeen∣sis: Be it unjust and unworthy, which is * 1.1333 sufferd, Yet must we not therefore, in a contentious humour, expose our selves to greater incommodities. And again: We seek to rid our selves of burthens that do sorely pinch us; but if they be portable, and we fear we shall change them for heavier loads, we compose our selves to patience. Aristides also, Where our fear is greater * 1.1334 than our hope, have we not great reason to be cautious?
LEt us take an example from that which Tacitus saith was of old con∣sulted of among the Cities of Gallia, Whe∣ther they should prefer Liberty or Peace: understand Civil Liberty, that is, a right of governing the Commonwealth by them∣selves; Which right is full in a popular state, tempered in an optimacy, especial∣ly such wherein none of the Citizens is excluded from honours: Understand also such a peace, whereby is avoided a destru∣ctive war; that is, as Cicero expresses it, wherein all is in danger to be lost: or, * 1.1335 where a right estimation of the future
seemeth to portend nothing els, but even the destruction of the whole people: Which was the case of the people of Je∣rusalem besieged by Titus. No man is ignorant, what Cato would say here, who chose rather to dy than to submit to One: to which purpose is that sentence, It is none of the hardest vertues to embrace * 1.1336 death, to avoid slavery; and many the like. But right reason dictates otherwise, to wit, That life, which is the founda∣tion of all good things temporal and eter∣nal, is of more worth than Liberty; whe∣ther you take both in one man, or in a whole people. Wherfore God himself im∣putes * 1.1337 it as a benefit, that he doth not de∣stroy men, but deliver them up to servi∣tude. And elswhere he perswadeth the Hebrews by the Prophet, to give up * 1.1338 themselves to serve the Babylonians, that they may not perish by famin and pesti∣lence. That then, which was praised by the Antients, that Saguntum did being * 1.1339 besieg'd by the Carthaginian, is not to be praised, nor the things that lead thi∣ther. For the internecion of a people in this kind of things, is to be ac∣counted as the greatest Evil. Cicero in his second De Inventione, setteth down this example of necessity; It was necessary the Casilinians shou'd yield themselves to Annibal: though that necessity had this adjunct, Except they would rather perish with hunger. Of the Thebans, who lived
in the times of Alexander the Macedo∣nian, is extant this opinion of Diodorus: Siculus: Being more valiant than wi•…•…e * 1.1340 they brought ruine upon their Country. Of that foresaid Cato and Scipio, who after the Pharsalick Victory would not sub∣mit to Caesar, Plutarch passeth his judg∣ment thus: They are to be blamed, as they that lost many and gallant men in Africa, to no purpose. † 1.1341 That which I have said of liberty, I mean of other things desi∣rable, if there be a more just or an equal expectation of a greater evil opposite. For, as Aristides saith well, It is the manner to save the ship, by casting fo•…•… the lading, not the passengers.
MOreover, in the exacting of punish∣ments, it is most observable, that war should never be entred into, upon that ground, against him who hath equal forces. For as a Civil Judge must, so he that will avenge wicked acts by war, must be much stronger than the offender. Nor doth prudence only, or Love of his peo∣ple require, that One abstein from a pe∣rillous war, but Justice too, that is, go∣verning Justice, which by the very nature of government obligeth the superiour no less to care for inferiours, than the infe∣riours to obedience. Whereto is conse∣quent, what is rightly delivered by Di∣vines, * 1.1342 that a King, who for light causes, or for to exact punishments not necessa∣ry, and drawing after them great danger, undertaketh a war, is bound to his sub∣jects to repair the damages arising thence. For, though not to the enemies, yet to his own people, injury is done by him, who upon such causes involves them in so great an evil. Livy saith, War is just, to whom * 1.1343 it is necessary: and their arms are pious, who have no hope left them but in arms. Ovid, thus:
Let not the soldier armed be, But to disarm the Enemie. * 1.1344THere is then seldom * 1.1345 cause of taking arms, which either cannot, or ought not to be omitted: to wit, when Laws are (as Florus speaks) worse than war. Se∣neca bids us venture upon dangers, when we fear no less dangers if we sit still; or greater: so Aristides, when it appears, our estate will be worse if we be quiet, th•…•… we ought to hazard our selves. Tacit•…•… saith, A miserable peace is well exchang'd for war: that is, when (as the same Author saith) either being victorious you shall be free; or being conquer'd, as you were: or where (as Livy * 1.1346 speaks) peace is more grievous to those that serve this war is to the free. Not if (as 'tis in Ci∣cero * 1.1347) this appears to be the event; 〈◊〉〈◊〉 you be conquer'd, you shall be proscrib'd•…•… if you conquer, you shall be neverthe∣less a slave. It will be also a time to 〈◊〉〈◊〉 arms, if, in a true judgment, where mo•…•… Right is, and that of greatest moment, there is most strength. This is that which Augustus † 1.1348 said, War is not to be •…•…∣dertaken, except there be greater hope 〈◊〉〈◊〉 benefit, than fear of loss. And, what S•…•…∣pio * 1.1349 Africanus, and L. Aemilius Paul•…•… were wont to say of injoyning battell, 〈◊〉〈◊〉
fitly be applied here, Fight not, without great necessity * 1.1350, or great opportunity. This will then chiefly have place, when it is hoped the business may be done, by ter∣rour † 1.1351 and fame, with none or very little danger: such was Dion's counsell for de∣•…•…ivering Syracuse † 1.1352. Pliny in one of his Epistles hath an expression to our purpose: He subdued the enemy (which is the fai∣rest kind of victory) by the terrour of his •…•…ame.
WAr is a cruell thing, saith Plu∣tarch, * 1.1353 and draws with it a train •…•…f injuries and insolence: And S. Augu∣•…•…in wisely: Should I go about to declare •…•…e manifold Calamit•…•…es, and extreme ne∣•…•…essities, which attend upon war, (which 〈◊〉〈◊〉 am not able sufficiently to express) when •…•…ould I make an end? But they say, a •…•…ise man will wage war. Rather, if he •…•…member himself to be a man, he will be •…•…rry to find a necessity thereof * 1.1354. It is the •…•…iquity of the adverse part, which enforces 〈◊〉〈◊〉 wise man to take arms, which iniquity of •…•…en, though war did not follow, were to be •…•…mented. Wherefore the mischiefs of war,
whosoever affectionately confiders, 〈◊〉〈◊〉 needs acknowledge it a misery; and if a∣ny one can pass them over without grief he is the more miserable, in that he 〈◊〉〈◊〉 lost all sense of his misery. The same Fa∣ther in another place; It seems a fe•…•… * 1.1355 to evil men, to wage war, to good men, ne∣cessity. And Maximus Tyrius: Although you take out of war injustice, the very ne∣cessity is it self miserable. The same: 〈◊〉〈◊〉 is plain, that just men take arms only up∣on necessity; the unjust, of their own ac∣cord. Whereto may be added that of Se∣neca: Man must not use man prodig•…•… Philiscus admonisht Alexander to feel * 1.1356 for glory, but on those terms, that be might not make himself a plague to the world: meaning the slaughter of people, and desolation of Cities, to be the effect of a plague: and that nothing is more Kingly, than to take care of all 〈◊〉〈◊〉 safety, which depends on Peace. If, 〈◊〉〈◊〉 the Hebrew law, even he that had 〈◊〉〈◊〉 a man against his will, was to fly for re∣fuge: If God denyed David, who 〈◊〉〈◊〉 the Lord's own battells, the honour 〈◊〉〈◊〉 building his Temple, because he had 〈◊〉〈◊〉 much blood † 1.1357: If, among the old Greeks they had need of expiation, who ever
without fault had steined their hand with blood: Who seeth not, especially if he be a Christian, how unhappy a thing War is, and of an ill omen, and with how great endeavour it is to be avoided, though not unjust? Surely, among the Greeks that professed Christianity, that Canon was long observed, whereby they were kept for a time * 1.1358 from the sacred mysteries, who had killed an enemy in any war whatsoever.
WE have said afore, that Every man naturally may execute, not only his own, but anothers Right. Wher∣fore the same causes, that are just for him whose business is in hand, are also just for them that bring aid unto others. Now, the first and most necessary care is for subjects † 1.1359, whether in the family, or in the Commonwealth; For they are as it were a part of the Governour, as there we have said. So, for the Gibeonites, who had subjected themselves to the Hebrew
people, that people took up arms under * 1.1360 the command of Joshua. Our Ancestors (saith Cicero) have often waged war for * 1.1361 injuries done to our Merchants and Sea∣men. Elswhere: How many wars h•…•… our Ancestors undertaken, because our Ci∣tizens * 1.1362 were said to be injur'd, our Saylors retein'd, our Merchants spoiled? The same Romans thought it necessary to take arms for the same people being become their subjects, for whom being consede∣rates they would not stir. The Campanians to the Romans; Seeing you will not, by just force, defend our estate against vio∣lence and injury, you will certainly 〈◊〉〈◊〉 your own. Florus saith, the Campanians made the league they had before, mo•…•… holy, by the dedition of all they had: It concern'd the Faith of the Romans, is Li∣vy * 1.1363 speaks, that a people which had yielded themselves, should not be deserted. How∣beit, not always are Governors bound to take arms for the just cause of a subject, but so, if, without incommodity of all or most of the subjects, it may be done. For, the Governors office is rather conversant about the whole than about the parts and * 1.1364 the greater the part is, the neerer it ap∣procheth to the nature of the whole. Wherefore, if one Citizen, though inno∣cent, be demanded by the enemy, he may (no doubt) be deserted † 1.1365, if it appear that the Commonwealth is far inferior to the enemies power. Against this opi∣nion
disputes Fordinandus * 1.1366 Vasquins: but if we mark his meaning rather than his words, he seemeth to contend, that such a Citizen be not rashly forsaken, when there is a possibility and hope of defense. For he brings also an example of the Ita∣lian Foot who forsook Pompey, before all was lost, being assur'd of quarter by Casar; which act he deservedly repro∣veth. But, whether an innocent Citizen may be given into the hands of the ene∣my, for the avoiding of destruction other∣wise imminent to the Commonwealth, Learned men dispute: And it was of old disputed, as, when Demosthenes produced that renowned Fable of the Doggs, whom the Wolves, treating with the Sheep about a peace, demanded of them. Not onely Vasquius denies it to be law∣full, but He, whose opinion is accus'd by Vasquius as perfidious, Sotus. Yet Sotus •…•…firms, such a Citizen is bound to deli∣ver up himself to the enemies: and this 〈◊〉〈◊〉 Vasquius denies, because the nature 〈◊〉〈◊〉 Civill society, which every one hath enterd into for his own benefit, doth not •…•…nquire it. But hence it follows only, that the Citizen is not bound to this by right properly so called; it doth not follow, that in Charity he is not bound to do it. •…•…or, there be many offices, not of pro∣per justice, but of Love, which are not only performed with praise (which Vas∣quius grants) but also cannot be omitted
without blame. And such in very de•…•… seemeth this to be, that one prefer the life of a great innocent multitude before his own † 1.1367. And therefore Phocion exhorted * 1.1368 Demosthenes and others, after the exam∣ple of the daughters of Leus and the * 1.1369 Hyacinthides, rather to undergo death themselves, than suffer an irreparable mis∣chief to de done to their Country. Cicero for P. Sextius: If this had happened to me sailing with my friends in some ship, that Pirates surrounding us should threaten to sink us all, except they would deliver me; I would rather have cast my self into the Sea, to preserve the rest, than bring 〈◊〉〈◊〉 friends either to certain death or into great danger of their life. The same in his third de Fimbus: A good man, wise and obi∣dient to the Laws, and not ignorant of Ci∣vil duties, careth more for the interest of all, than of any one, or his own. In Livy * 1.1370 we read it spoken of certain M•…•… Often have I heard of men that dyed for their Country; but these men are the fir•…•… that thought it fit, their Country 〈◊〉〈◊〉 perish them. But, this being granted, a doubt remains, whether the innocent Citizen may be compell'd to do that which he is bound to do. Satus denyes this, using the example of a rich man, who is bound 〈◊〉〈◊〉 the precept of Mercy to give Almes to the poor, yet cannot be compell'd to 〈◊〉〈◊〉 But, we must note, tis one thing when the parts are compared among themselvs,
another when Superiours are compared to their subjects. For, an equal cannot compell his equal, but unto that which is due by right strictly taken: yet may a Superiour compell his inferiour to other things also, which any vertue commands † 1.1371, because this is comprehended in the pro∣per right of a superiour, as he is superiour. † 1.1372 So, in great scarcity of corn, subjects may be forc'd to bring out what they have laid up. And therefore, in our con∣troversy, it seemeth more true that the Citizen may be compeld to do that which Charity requires. So that Phocion whom whom we have mentioned, pointing at his most dear friend Nicocles, said, Things were come to that extremity, that if A∣lexander should demand him, he should think he were to be delivered.
NExt to subjects (yea qual in this, that they ought to be defended) are Confederates in whose Agreement this was comprehended: that is, whether they have yielded up themselves to the safe∣guard and trust of others, or have cove∣•…•…nanted for mutuall succours. He that re∣•…•…elleth not injury from his Fellow, if he be able, is in fault, as he that offers it, saith Ambrose. As for Agreements to war, when * 1.1373
when there is no just cause † 1.1374, they hol•…•… not, as we have said above. And this is the reason, why the Lacedemonians, be∣fore they enterd into the war against the Athenians, permitted all their Confede∣rates to judge of the justice of the cause: and the Romans permitted the Greeks to judge of the war against * 1.1375 Nabis. Nay fur∣ther we adde, the Fellow is not then bound to aid, if there be no hope of a good issue. For, Society is contracted for good and not for evil. Moreover, a Con∣federate is to be defended, even against another Confederate, unless in the for∣mer league there was some more special agreement. So the Athenians might de∣fend the Corcyreans, if their cause were just, even against the Corinthians their more antient Confederates. Another cause there is, on behalf of friends, to whom though no promise of aid was made, yet in respect of friendship it is due, if it may be given easily and without incommodity. So Abraham took arms for his Kinsman Lot: The Romans charged the Anti•…•… not to use Piracy upon the Grecians be∣ing the Cousins of the Italians: The same Romans oft undertook, (or threatned) wars, not for their Confederates only, as they were obliged by Covenants, but for their friends † 1.1376. The last an•…•… largest relation of men to 〈◊〉〈◊〉 another is, as they are men. Which alone sufficeth to 〈◊〉〈◊〉
for help. Men were born to help one ano∣ther, * 1.1377 saith Senoca * 1.1378. And again, A wise man will, as oft as he can, relieve the un∣fortunate † 1.1379. Fortitude which defends in∣firmity, saith S. Ambrose * 1.1380, is full of Justice. Of this above.
HEre it is a question, whether any obligation lyes upon one man, or one people to defend another from inju∣ry. Plato's judgment is, that he deserves * 1.1381 punishment, who doth not keep off force offerd to another: which also was provi∣ded for in the Laws of the Egyptians. But first, if there be manifest danger, it is cer∣tain he is not bound; for, he may pre∣ferr his own life and goods before another man's. And in this sense I understand that of Tully: He that defends not, nor resists injurie, if he can, is in no less sault, than if he forsake his parents, or Country, or Companions. If he can: that is, Without his own hurt. For the same Author saith in another place: Men may perhaps be left undefended without any blame. It is in Sallust's Histories: All that in their prosperity are intreated to so∣ciety
of war, ought to consider, whether they may be permitted then to live is peace: and, whether that which is reque∣sted be pious, safe, glorious, or dishonourae∣able. This of Seneca † 1.1382 too is not to be de∣spised: I will succour one that is about to perish, but so, that I my self may not pe∣rish; unless I shall redeem some great per∣son, or great matter. But then neither, he will not be bound, if the oppressed an no other way be freed, but by the death of the oppressor. For, if he that is inva∣ded may preferr the life of the Invades before his own (as we have said els∣where) he will not sin who believes or desires that the oppressed should be of that mind: especially when, on the part of the oppressor or invader, the danger of an irreparable and eternal loss is greater.
THis is also in Controversy, whether it be a just cause of War, for the Sub∣jects of Another, that they may be deli∣verd from the injury of their Ruler. Veri∣ly, since civil Societies were instituted, it is certain the Rulers of every one have attained a special right over their own Subjects. And Thucydides, among the signes of Soveraignty hath put the supreme
power of Judgments * 1.1383, no less than a right of making Laws and Magistrates. Ambrose gives the reason; Lest one usur∣ping * 1.1384 the charge of another they should raise * 1.1385 war among themselves. The Corinthians, in the same Thucydides, think it Equity, that every one should himself punish those that belong unto him † 1.1386. And Perseus, in his oration to Martius, saith, he would not excuse what he had done to the Do∣lepes: I have done it (saith he) by my own right, seeing they were of my Kingdom, under my dominion. But, all this hath place, where Subjects do truly offend, or where the case is doubtfull. For, to this purpose was ordained that distribution of Empires. Notwithstanding, where the in∣jury is manifest, where any Busiris, Pha∣laris, Thracian Diomedes executeth such things upon his Subjects, that no good man can allow of, there the right of hu∣man society is not praecluded. So Constan∣tin against Maxentius and against Lici∣nius, other Roman Emperors against the Persians * 1.1387; took arms, or threatned to take them, unless they would abstein from per∣secuting
the Christians for their Religion. Yea, supposing arms cannot, no not in extreme necessity, be taken rightly by Subjects (whereof we have seen those to doubt whose purpose was to defend the regal power:) nevertheless will it not therefore follow, that arms may not be taken by others on their behalf. For, as oft as a personal, not real, impediment is put against any action, so oft may that be lawfull for one for anothers good, which was not lawfull for that other; if the mat∣ter be of such a nature, wherein one may procure the good of another. So, for a Pupil, whose person is uncapable of judg∣ment, the Tutor goes to Law or some o∣ther; for one absent, even without a mandate, his Defendor. Now, the Im∣pediment, which prohibites a subject to resist, comes not from a cause which is the same in a subiect and no-subject, but from the quality of his person which pas∣seth not into others. So Seneca thinks, I may war upon him, who being divided from my Countrey troubleth his own; (as we have said when we spake of exacting punishment;) which thing is often joined with defense of the innocent. We are not ignorant, by reading of histories old and new, that Avarice and Ambition hideth it self under these pretences; but it doth noth not therefore presently cease to be a Right, which is abused by evil men. Pi∣rates also go to Sea; and Robbers use the sword.
MOreover, as warly Societies enterd into with such a mind, that aids are promised in every war * 1.1388 without any diffe∣rence of the cause, are unlawfull; so is no kind of life more wicked than theirs, who without respect unto the cause are hired to kill men, thinking * 1.1389, There is most right, where is most pay. Which Plato proves out of Tyrtaeus. This is that which the Aetolians were upbraided with by Philip, and the Arcadians by † 1.1390 Dionysius Mile∣sius, in these words; Mercats are made of War, and the calamities of Greece are a gainto the Arcadians, and without re∣gard of the causes arms are carried to and fro. A miserable thing indeed, as Anti∣phanes speaks, That men should get their living, by exposing themselves to death * 1.1391. What is more necessary to us (saith Dion Prusaeensis) or what is more worth than life? and yet many men are prodigal of this, while they are greedy of money. But, this is a small matter, * 1.1392 to sell their own blood, unless they did also sell the blood of other men that are oft-times innocent; So much worse than the Hangman, by how much worse 'tis to kill without cause † 1.1393, than with cause: As Antisthenes
said, Hangmen are better than Tyrants, because they execute the guilty, these the guiltless. Philip of Macedon the Elder said * 1.1394, These men that get their living by making a trade of war, esteem war to be their Peace, and Peace their war. War is not to be turned into an Art or profession, being a thing so horrid, that nothing can make it honest, but the highest necessity, or true charity: as may be understood by what we have said afore. It is not indeed in it self a sin (saith S. Augustin) to go to * 1.1395 war, but to go to war for the spoil is a sin, Yea, and for the stipend or pay, if that alone be regarded, or that chiefly: when as otherwise it is very lawfull to receive pay; for, who goeth to war at his 〈◊〉〈◊〉 charge? saith S. Paul the Apostle. * 1.1396
WE have done with them that are is their own power: there are others in a condition of obeying, as sons of fa∣milies, servants, subjects, and single Citi∣zens if they be compar'd with the Body of their Commonwealth. And these, i•…•… * 1.1398 they be called to debate, or a free choice be given them to go to the war, or to stay at home, ought to follow the same rule
with them that at their own pleasure un∣dertake wars for themselves or others.
BUt, if it be commanded them to bear * 1.1399 arms, (as it usually comes to pass;) What then? Why, truly if it be manifest to them that the cause of the war is un∣just, they ought by all means to abstein. That we must obey God rather than men, is not only a sentence of the Apo∣stles, * 1.1400 but of Socrates too † 1.1401; and the Hebrew-Masters have a saying * 1.1402, That the King must not be obeyed, when he commands any thing contrary to the Law of God. Polycarpus said just before his death, We have learned to give meet ho∣nour to the Empires and powers ordained of God, so far as may consist with our salvati∣on. And S. Paul the Apostle; Children be obedient to your Parents in the Lord * 1.1403; for
this is right. Upon which place Hierom: It is a sin for children not to obey their pa∣rents; yet because parents might perhaps command somewhat amiss, he added, In the Lord. And he annexed this of ser∣vants, When the Lord of the flesh •…•…∣neth a thing divers from the Lord of the Spirit, Obedience is not due. And elswhere, In those things only ought men to be sub∣ject to their Masters and Parents, which are not against the Commands of God. For the same Apostle also saith, Every man shall receive a reward of his own worke, whether he be bond or free. Seneca * 1.1404; Nei∣ther can we command all things, nor 〈◊〉〈◊〉 servants perform. They must not obey •…•…s against the Commonwealth: They must not lend their hand to any wickedness. So∣pater: Obey thy Father. If according to right, well: if otherwise, not so. Strat•…•…∣cles was irrided, of old, who propounded a Law at Athens, that whatsoever plea∣sed King Demetrius, might be accounted pious toward God, and just toward 〈◊〉〈◊〉. Pliny * 1.1405 saith he laboured somewhere to make it evident, That it is a crime to serve another † 1.1406 in doing evil. The Civil Law
themselves, which do easily give pardon to excusable faults, favour those that must needs obey, but not in all things: for they except things which have atrocity, which are heinous and wicked in their own na∣ture, as Tully speaks, and not by the in∣terpretation of Lawyers. Josephus relates out of Hecataeus, that the Jews which ser∣ved under Alexander the Great, could not be compell'd, either by words nor blows, to carry earth, with the other sol∣diers, to the repairing of Belus's Temple •…•…t Babylon. But we have a more proper example in the Thebaean Legion (of which •…•…bove) and in Julian's soldiers, of whom Ambrose thus: Julian * 1.1407 the Emperour, though an Apostate, had under him Chri∣stian soldiers: whom when he Commanded •…•…o Draw out in defense of the Common∣wealth, they obeyed him. But, when he said, Use your arms † 1.1408 against the Chri∣stians,
then did they acknowledge the Emperour of Heaven. So we read of cer∣tain Spearmen converted unto Christ, that they chose rather to dy, than to execute the Edicts & judgments against the Chri∣stians. 'T will be all one * 1.1409, if a man be perswaded, it is unjust which is comman∣ded. For, that thing is to him unlawfull, so long as he cannot put off that opinion: as appeares by what we have said already.
BUt, if a man doubt, whether the thing be lawfull or no, must he then obey, or not? Most Authors are of opinion, that he must obey: nor doth that hinder, D•…•… not, what you doubt of: because (say they) * 1.1410 he that doubts contemplatively, may in his active judgment be out of doubt; For he may believe, that in a doubtfull matter he ought to obey his superiour. And tru∣ly it cannot be denyed, but this disse∣ction of a twofold judgment hath place in many actions. The Civil Laws, not of * 1.1411 the Romans only but of other Nations, i•…•… such a circumstance, do not only gra•…•…
Impurity † 1.1412 to those that obey, but also de∣ny any Civil action against them. He doth the damage, say they, who commands it to be done: and he, who must needs obey, is in no fault. Necessity of the power ex∣cuseth, & the like. Aristotle himself in the fist his Ethicks, among those that do some∣thing unjust, but not unjustly, annume∣rates the servant of a Master comman∣ding; and he saith, He doth unjustly, from whom the action takes beginning; upon this ground, because the faculty de∣liberative is not full, according to that verse * 1.1413;
Those men enjoy but one half of their soul, Whom their imp r ous Masters words controul.
And that of Tacitus: The Gods have given the Prince supreme judgment of * 1.1414 things: to sub ects is left the glory of obe∣dience. Piso's son (in the same writer) was by Tiberius absolv'd from the crime of the Civil war; Because the son was not able to reject the commands of the Father.
Seneca: A servant is not a Censurer, but a minister of his Masters will. And spe∣cially * 1.1415 in this question of warfare Auga∣stin thought so; for so he speaketh: A just man, if perhaps he serveth under a se∣crilegious * 1.1416 King, may rightly fight at his command, if keeping civil order, he be either sure what is commanded him is not against the Command of God, or be 〈◊〉〈◊〉 sure that it is: so that perhaps the King may be guilty of iniquity in his command, but the soldier innocent in his obedient. The like he saith * 1.1417 in other places. And hence it is a common received opinion, that, as to subjects, a war may be on both sides just, that is, without injustice † 1.1418, Yet this is not without its difficulty. And our Countryman Adrian * 1.1419, who waste last Bishop of Rome of the Cisalpins, de∣fends the contrary opinion: which may be confirmed, not by that reason precisely that he brings, but by this which is 〈◊〉〈◊〉 urgent: Because he that doubts contem∣platively, ought by his active judgmenta chuse the safer part: And it is the 〈◊〉〈◊〉 part to abstein from war. The Essens 〈◊〉〈◊〉 commended, for swearing, among other things, That they would never do any er•…•… harm, no not if they were commanded And their Imitators the Pythagoreans who as Jamblicus testifies, absteined from * 1.1420 war, adding this for the reason, because is so bloody. Nor is it any material obje∣ction, that on the other side there is d•…•…
ger of inobedience. For, when Both are uncertain (for if the war is unjust, then in avoiding thereof is no inobedience) that is faultless, which of the two is less. Now, inobedience, in such matters, is of * 1.1421 its own nature less evill than homicide and slaughter, especially of many Inno∣cents. The Antients tell how Mercury, * 1.1422 being accus'd for killing Argus at the command of Jupiter, defended himself, and yet the Gods durst not absolve him † 1.1423. Nor is it of great weight, which some bring on the con∣trary; That it will come to pass, if that be admitted, that the Commonwealth will be oft undone; be∣cause it is not expedient (for the most part) the reasons of Counsel's should be published and made known to the people. For, grant this to be t•…•…ue concerning the suasory causes of war, it is not true of the justifick; which must be clear and evident, and therefore such as may and ought to be openly declared † 1.1424. And thus do some learned men inter∣that in Genesis 14. 14. to this sense, that Abrahams servants, before the battell, were fully instructed by him concerning
the Justice of his arms * 1.1425 Certainly, de∣nuntiations, as we shall shew hereafter, were wont to be made openly, and the cause exprest, that all mankind, as i•…•… were, might examin and know the justice of it. Prudence indeed is a vertue (as it seemed to Aristotle) proper to Gover∣nors; but Justice to man, as he is man. Now, in my judgment, that opinion of Adrian is clearly to be followed, if the subject not only be in doubt, but is in∣duc'd by probable Arguments, and incli∣ned rather to believe that the war is un∣just: especially, if it be not defensive, but offensive. And so it is probable, that the Executioner of a man condemned, either by his presence at the Tryall, or by the confession of the party, ought so far to understand the case, that he may be afraid he hath deserved death † 1.1426: which, in 〈◊〉〈◊〉 paces, is the custome: and the Hebrew Law * 1.1427 looks this way, when, in the st•…•…∣ning of one condemned, it requires the witnesses to go before the people.
MOreover, if the mindes of the Sub∣jects * 1.1428 cannot be satisfyed by Decla∣ration of the cause, it will certainly be the office of a good Magistrat, rather to im∣pose upon them double Contribution, than military service; especially when there are not wanting enow Voluntiers to serve. Whose will, not only good, but evil too, a just King may use, as God doth use the ready service of the Devil and wicked men: and as he is without fault, who be∣ing in need of money takes it up at hard rates from an oppressing Usurer. Yea fur∣ther, if there can be no doubt made about the Cause of the war, never∣theless it seemeth to be much against equi∣ty, that Christians against their wills should be compell'd and prest Souldiers, seeing, to abstein from war, even when it is lawfull to wage it, is a point of greater sanctity; which was exacted both of Clergy-men and Penitents, and to all other persons many wayes commended. Origen to Celsus objecting against the Christians, that they declined war, shapes this Answer: To Infidels, who would * 1.1429 have us go to war for the Commonwealth, and kill men, we will answer thus, They that are Priests of your Idols, and Fla∣mens
of your reputed Gods, keep this hands pure for sacrifices, that they may offer them to your supposed Gods, with hands unbloody, and defiled with no slaugh∣ter: nor are your Priests listed soldiers in any war. Now, if that be not without rea∣son, how much more than other soldiers, are our men in their way to be accounted militant, as the Priests and worshippers of the true God, who indeed keep their hands pure, but strive with Godly prayers, on behalf of those that fight in just Commander?, and of him that is the just Commando? In which place he stileth all Christiars Priests, after the example of the holy writers, Apoc. 1. 6. 1 Pet. 2. 5.
ANd I am of opinion, it is possible, that, in a war not only doubtf•…•… but manifestly unjust, there may be some defense just on the subjects part. For seeing an Enemy, through waging a j•…•… war, hath not true and internal right (except for necessary defense, or bycon∣sequence and beyond his purpose) to kill subjects innocent, and far remote from all blame of the war; (and such are not ob∣noxious to punishment;) it followeth, that, if it certainly appear, the enemy comes with such a mind, that he will 〈◊〉〈◊〉
no wise (though he be able) spare the life of his enemies subjects; it followeth, I say, that these subjects may stand in their own defense by the right of Nature, whereof they are not deprived by the law of Nations. Neither shall we say (upon this) that the war is just on both sides: for our question now is not concerning the War, but concerning a particular and determinate action; which action, though of one otherwise having right to war, is unjust, and therefore is justly repelled.
Who may wage war, and for what causes, we have seen. It fol∣lows that we weigh what and how much † 1.1430 is lawful in war, and in what man∣ner. Which is either nakedly considered,
or upon promise antecedent. Nakedly; First, by the Law of Nature Se∣condly by that of Nations. What is by nature lawfull let us consider thus. First, as we have said afore, the things that lead to any end in moral matter receive 〈◊〉〈◊〉 intrinsic estimation from the end it 〈◊〉〈◊〉 * 1.1431; wherefore we are understood to have a right to those things, which are necessa∣ry to the end of Right to be attained; ne∣cessary I mean, by a necessity taken n•…•… according to Physical subtilty, but mo•…•…∣ly: and right I mean, that which is strict∣ly so called, and signifies a faculty of D•…•…∣ing in sole respect of Society. Where•…•…, if I cannot otherwise save my life, it is lawful for me, by any kind of force, to keep off him that assalts it, though hap∣ly he may be without fault, as we have noted elswhere: because this right ariseth not properly from anothers sin, but from the right which nature granteth me in my own Defense. And further, I may invade * 1.1432 that which is another man's, without consideration of any fault of his, if any certain danger be imminent to me from that thing: Yet may I not become Lord thereof; (for this is not accommodate to that end;) but keep it until I may be se∣cured; which hath been also said * 1.1433 above. So, I have naturally a right to take away
from another that thing of mine which he •…•…eceineth: and, if I cannot the same, something equivalent; as also, to obtain 〈◊〉〈◊〉 debt. Upon which causes Dominion * 1.1434 •…•…ollows too, because equality impair'd •…•…annot be repair'd otherwise. So, where •…•…unition is just, just also is all force, without which it cannot be exercised; and •…•…ust is every thing which is a part of pu∣nishment, as the wast made by fire or o∣ther way, being within fit measure, and such as is answerable to the fault.
SEcondly, we must know, that our right is not to be consider'd onely by the be∣ginning of the war, but by causes arising after; as also in Trials of Law, after the sute commenced, a new right oft ariseth to a party. So, they that gather to my Assailant, whether Associats or Sub•…•…ects, yield me a right of defending my self a∣gainst them also. So, they that mixe them∣selves in a war which is unjust, especial∣ly if they may and ought to know it to be unjust, oblige themselves to repair the charge and damage, because by their fault they do it. So, whosoever engage in a war undertaken without probable ground, do also make themselves obnoxious to pu∣nishment,
by reason of the iujustice 〈◊〉〈◊〉 herent in their act. And thus Plato 〈◊〉〈◊〉 proves of war, until they that are 〈◊〉〈◊〉 be compeld to make satisfaction to the •…•…∣nocent, whom they have wronged.
THirdly, we must observe, Many things follow upon the righr of Doing, in∣directly, and without the purpose of the Doer † 1.1435, to which there was no right dire∣ctly and by itself. How this hath place in self-defence we have explained elswhere. In like manner, that we may recover 〈◊〉〈◊〉 own, if just so much cannot be taken, we have a right to take more; yet under this obligation, of restoring the price of that which redounds. So may a ship fill'd with Pirats, or a house with Theeves be b•…•…∣tered with guns, though in the same ship or house are a few Infants, women or o∣ther innocent persons thereby endange∣red † 1.1436. But, as we have noted often, that is not perfectly lawful always, which a∣greeth with right strictly taken. For, o•…•…∣times Charity to our neighbour will not permit us to use strict and extreme right. Wherefore, those things which happen beside our purpose, and are fore∣seen that they may happen, must also be
within our Caution, unless the good to which our action tendeth, be much grea∣ter than the evil which is feared: or, un∣•…•…ess, when the good and evil are equal, •…•…he hope of good be much greater than the fear of evil; which is left to be determi∣ned by Prudence: yet so, that always in 〈◊〉〈◊〉 doubful case we must incline to that •…•…art as the safer, which provides for Ano∣ther more than for our selves. Suffer the * 1.1437 •…•…ares to grow, saith the best Master, lest while you would pluck them up, you pluck •…•…p the wheat too. And Seneca saith, It * 1.1438 〈◊〉〈◊〉 the power of Fire and Ruine to kill ma∣•…•…y without making difference. Histories teach us, with what serious repentance Theodosius, by Ambrose's direction, ex∣piated such immodesty of revenge. Nei∣ther is it to be drawn by us into example, •…•…f God at any time doth such a thing, by •…•…eason of that most full right of Domi∣nion he hath over us, which right he hath not granted us to have one over another, as we have before noted. Notwithstan∣ding, the same God, Lord of men by his own right, for the sake of a very few good men, is wont to spare, even a great mul∣titude of the bad; and thereby testifies his equity, as he is a Judge, as the Conference of Abraham with God concerning Sodom * 1.1439 clearly shews us. And by these general rules it may be known, how much is law∣ful against an enemy Naturally.
IT is also enquir'd, what is law•…•… against them, who are not enemies, or would not so be called, but furnish the enemies with some things. For, both of old and of late, we know there hath been sharp contention about it, some defen∣ding the rigour of war, others the Free∣dome of Trade. First, we must distinguish of the things themselves. For some things there are that have use onely in war, as arms; some, that have no use in war, as those that serve for pleasure; some, th•…•… have use, both in war, and out of war, as mony, victuals, ships and things belon∣ging thereto * 1.1440. In the first kind, true 〈◊〉〈◊〉 that saying of Amalasuintha to Jus•…•…∣nian * 1.1441, They are on the enemies party that supply the enemy with Nece•…•… for the war. The second kind hath 〈◊〉〈◊〉 cause of complaint. So Seneca saith, b•…•… will make requital to a Tyrant, if th•…•… benefit will neither give any new streng•…•… unto him to do publick mischief, nor •…•…∣fim the strength he hath. That is, which may be rendred him without the hurt 〈◊〉〈◊〉 the Commonwealth: for explicati•…•… whereof he addeth, I will not help him 〈◊〉〈◊〉 Mony to pay his Guard; but if he shal 〈◊〉〈◊〉 sire Marbles and Robes, such thin•…•…
hurt not others, only they minister to his Luxury; Soldiers and arms I will not sup∣ply him with; if he shall seek for Players and Recreations to soften his fierceness, I will gladly offer them. Ships of war I would not send him, but such as are for pleasure and ostentation of Princes spor∣ting in the Sea I will not deny. And in the judgment of S. Ambrose, to give to one * 1.1442 that conspires against his Country, is a liberality not to be allowed. In that third kind of doubtful use, the state of the war is to be distinguished. For, if I can∣not * 1.1443 defend my self, unless I intercept the things sent, Necessicy then, as we have elswhere said, will give a right, but with the burthen of restitution, except some o∣ther cause accede. But, if the apporta∣tion of those things hinder the execution of my right, and he could know so much who brought them; as, if I had streitned 〈◊〉〈◊〉 town with siedge, or shut up havens, and were now in expectation of their yiel∣ding or compounding; He shal be liable for the damage by his fault done me, like •…•…ne that hath taken my debtor out of pri∣son, or hath helped him to escape, where∣by I am injur'd; And according to the * 1.1444 •…•…easure of my loss, his Goods also may •…•…e seised, and brought under my com∣mand, to the end I may obtain my Due. •…•…f he hath not yet done any damage, but hath been willing to do it, there will be a •…•…ight, by retention of the things, to com∣pell
him to give Caution for the future, by hostages, pledges, or some other way. But, if moreover my enemie's injustice toward me be most evident, and He con∣firm him in that most unjust war, in this case He will not only Civilly be liable, but Criminally, as one that rescues a per∣son manifestly guilty from the Judge at hand; and, for that cause, it 〈◊〉〈◊〉 be lawful to determine against him that which is meet for his offense, according to what we have said of punishments: wherefore within that measure He may also be spoiled. And, for these reasons, They that wage war, are accustomed to give publick notice † 1.1445 thereof to other na∣tions, to the end that both the right of their Cause, and the probable hope they have to execute the same, may appear to all. Now, for this question: we have therefore referr'd it to the right of nature, because out of Histories we could find nothing constituted thereof † 1.1446 by the vo∣luntary Law of Nations. The * 1.1447 Romans, who had brought victuals to the enemi•…•… of Carthage, were taken by the Cartho∣ginians, and again rendred upon reque•…•…
Dematrius * 1.1448, when he possessed Attica with his Army, and had taken the neigh∣boring Towns Eleusis and Rhamnus, in∣tending to famish Athens, hanged up both the Master and Governour † 1.1449 of a ship about to bring in corn, and by that means deterring others got the City.
AS to the manner of acting, force and terrour is most proper to wars: whe∣ther it be lawful also to use guile, is a question. For Homer, and Pindar, and Virgil, do all concur in this sentence † 1.1450:
Your Enemy, you lawfully may spoile, Whether by open force, or secret guile.And Solon, so famous for his wisedom, followed this Rule, and Fabius Maxi∣mus in Silius * 1.1451 helpeth his valour with cunning. Ulysses, in Homer, the exem∣plar of wisedom, is every where full of subtle devices against the enemy: whence
Lucian concludes, They are worthy of * 1.1452 praise that deceive him. Xenophon said, Nothing is more profitable in War than * 1.1453 Deceits; and Brasidas in Thucydides holds it to be a singular commendation to over-reach * 1.1454 the enemy; and Agesilaus in Plutarch thinks it very just and law∣full. Polybius is of opinion, that things done by strength in war are inferiour to those done by wit: and out of him Silius brings in Corvinus speaking thus * 1.1455;
—Less praise I gain By my strong hand: I war by a strezg brain.And Plutarch notes, that those severe Laconians were of the same judgment, and that He offered a greater sacrifice, who had effected his work by strategem, than by plain battell. The same Author mag∣nifies Lysander † 1.1456 for his various fleights of war, and reckons it amongst the praises of Philopemen, that being instituted in the Crotian disciplin, he had allayed tha•…•… blunt and hardy manner of warring 〈◊〉〈◊〉 deceits and stealths. Ammianus saith, All prosperous events of war are to be praised, without making difference be∣tween Valour and Craft. The Roman Law∣yers call it an honest craft, if one devised i•…•… against an enemy, and say, it matters no•…•… whether one escape the enemies power 〈◊〉〈◊〉 force or fraud. Among Divines, Augu∣stin: When a just war is undertaken,
is no difference in point of right, whether one fight with open force, or ly in wait. * 1.1457 And Chrysostom; Generals are most prais∣worthy, that have got the victory by stra∣tagem. Howbeit, there are not wanting Opinions that seem to perswade the con∣trary: some of which we will allege a∣non. The determination of this Question depends on that, whether Guilt or De∣ceit in general be of the number of Evils, concerning which it is said, Evil is not to be done, that Good may come of it; or of such as are not evil universally, and in their own nature, but may haply and in some cases be good.
IT is therefore to be noted, that Guile either consists in a negative act, or in a positive. I extend the word to those things * 1.1458 that consist in a negative act, upon the authority of Labeo, who refers it to Guile, but not evil, when one doth defend his own or another man's by dissimulation. Doubtless, it was too crudely spoken by * 1.1459 Cicero: Our whole Conversation ought to be free from simulation and dissimulation * 1.1460 altogether. For, when as you are not bound to discover unto others all things that you know, or intend, it follows, that •…•…o dissemble certain things before certain * 1.1461 persons, that is, to hide and conceal them
is very lawful. It is lawful, saith S. Au∣stin * 1.1462, to cast the veil of dissimulation sometimes over the face of Truth. And Cicero himself, in more places † 1.1463 than one confesseth it to be necessary and inevita∣ble * 1.1464, especially to men of place in the Commonwealth. A notable example to this purpose, we have in the history á Jeremy, ch. 38. For, that Prophet being questiond by the King about the event of the Siedge, upon the Kings request prudently conceals the same before the Princes, alleging another cause of thee Conference, and that a true one too. Hi∣ther * 1.1465 also may be referrd, that Abraham * 1.1466 calls Sara his Sister, that is, according to the manner of speech used then, his 〈◊〉〈◊〉 kinswoman, not revealing his mar∣riage.
GUile which consists in a positive act, if in things, is called Simula∣tion; if in words, a ly. Some do thus di∣stinguish between these two, saying, Wo•…•… are naturally signes of the mind, things * 1.1467 not so. But on the contrary 'tis true, tha•…•… Words, by nature it self and without th•…•… will of men, do signify nothing, unle•…•… perhaps it be a confused voice and ina•…•…∣culate, as in grief, which yet comes •…•…∣ther under the appellation of a thing, th•…•… of a word or speech. Now, if this be 〈◊〉〈◊〉
that this is the peculiar nature of man a∣bove other creatures, that he can express * 1.1468 unto others the conceptions of his mind, and that words were found out to that end, they do indeed say what's true; but 'tis to be added, that such an expression is not made by words alone, but also by nods † 1.1469 and signes, as to mutes, whether those nods have by nature some what com∣mon with the thing signifyed, or els do signify only by institution. To which are like those Notes, which do signify, not words figured by the tongue, (as Paul * 1.1470 the Lawyer speaks) but things them∣selves, either by some convenience and agreement with them, as hieroglyphicks, or by meer will, as among the people of China. Wherefore, another distinction must be here given, such as is used to take away the ambiguity in the Word, Law of Nations. For this law is either that which hath pleased every nation without mu∣tual tye, or that which doth mutually o∣blige. Thus, Words, and nods, and notes, which we have said, were found out to signify with mutual obligation * 1.1471: other things not so. Hence it comes to pass that * 1.1472 it is lawful to use other things, though we foresee, that Another may thereupon con∣ceive a false opinion † 1.1473. I speak of that which is intrinsecal, not of that which is accidental. Therefore an Example is to be pu•…•…, where no nocument * 1.1474 follows thence, or where the nocument it self, the
consideration of the guile set aside, is law∣ful. An example of the former is in Christ, who to his companions going to Emma•…•…, made as though he would have gone far∣ther; unless we had rather understand, he * 1.1475 had really an intent to go farther, Except they constrained him to stay; as God a•…•… is said to will many things which are not done, and elswhere Christ himself is said * 1.1476 to have been willing to pass by the Apo∣stles rowing, to wit, except he were e•…•…∣nestly entreated to come up into the 〈◊〉〈◊〉. Another example may be given in Paul, who circumcised Timothy, when he 〈◊〉〈◊〉 * 1.1477 knew the Jews would take it so, as if the precept of Circumcision, which was in∣deed abolished, did still oblige the Isrea∣lites, and as if Paul and Timothy were 〈◊〉〈◊〉 that opinion: when yet Paul meant not this, but only to procure unto himself and Timothy a more familiar way of Conver∣sation with the Jews. Nor did Circum∣cision any more, the Law Divine takes away, purposely signify such necessity nor was the consequent Evill of the pre∣sent errour, after to be corrected, of 〈◊〉〈◊〉 great value, as that good which Paul ha•…•… his eye upon, namely, the insinuation of Evangelical Truth. This simulation th•…•… Greek Fathers often call 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 † 1.1478. 〈◊〉〈◊〉 which is extant an excellent sentenc•…•…
of Clemens Alexandrinus speaking of a good man thus: For the good of his * 1.1479 Neighbour he will do some things, which otherwise of his own accord, and by a pri∣mary intention he would not do. Of this sort is that in the war of the Romans, who threw loaves from the Capitol into the guards of the enemies, to possess them with a belief, that they were not streitned with hunger. An example of the later is in a feigned flight, such as Joshua gave in * 1.1480 command to his men, that they might conquer Ai; and other Captains often. For here, the nocument that follows we * 1.1481 prove to be lawfull from the justice of war; and the flight it self, by appoint∣ment, signifies nothing although the e∣nemy take it as a sign of fear, which mi∣stake the other is not bound to acquit him of, using his liberty to go hither or thither, and with more or less speed, and in this or that posture or habit. Hither also is to be referred their act who are frequent∣ly read to have used the arms, ensigns, ap∣parel, sails of their enemies. For all these things are of that kind, that they may be used of any at his pleasure, even contrary to custom; because the custom it self is in∣troduced at pleasure of every one, not as by common consent, and such a custome obligeth no man.
IT is a harder question concerning those notes, which, as I may say, are cover∣sunt in the commerce of men, of which sort properly is a ly. For, there are ma∣ny places in Scripture against lying. A righteous (i. e. a good) man hateth ly∣ing. * 1.1482 Remove far from me vanitie and lies. Thou shalt destroy them that speak lyes. Ly not one to another. And this part is rigid∣ly maintaind by Augustin: and there are among the Philosophers and Poets † 1.1483, that have the same opinion. That of Homer is famous;
Whose mind thinks one thing, and his Tongue doth tell Another, I hate like the pit of Hell:
Aristotle said, A ly is of it self soul and vituperable, Truth fair and laudable. Yet, on the other side is not wanting Au∣thority neither; first, Scripture-examples * 1.1484 of men approved without any note of re∣prehension; next, the sayings of the an∣tient Christians, Origen, Clement, Ter∣tullian, Lactantius, S. Chrysostom, S. Hierom, Cassian, yea almost all, a•…•… S. Augustin himself confesseth, so dis∣senting, that he doth nevertheless ac∣knowledg
it to be a great question, dark, and subject to various disputation of lear∣ned men. Among the Philosophers, plain∣ly stand on this side, Socrates and his Scholars, Plato, Xenophon, and Cicero * 1.1485 somewhere; and, if we believe Plutarch and Quintilian, the Stoicks: who, among the gifts of a wise man, mention a dex∣terity to ly, when, and as one ought. Nor doth Aristotle seem to dissent in some places: whose 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, by it self, in the saying afore, may be expounded com∣monly, or the thing being considerd with∣out circumstances. And his Interpreter Andronicus Rhodius saith of a Physician * 1.1486 lying to his Patient, He deceives indeed, yet is he not a Deceiver: He addes the reason: For his purpose is not to deceive, but to preserve the diseased. Quintilian pleading on this side, saith, There are very many things, which are honest or dishonest, not so much in the doing, as in the causes of them. † 1.1487 And in the same Orator I read, It is sometimes granted to a wise man to tell a ly. Eustathius Me∣tropolitan of Thessalonica, upon the se∣cond of the Odysses: A wise man will ly,
upon urgent occasion † 1.1488: Where he also al∣legeth testimonies out of Heredotus and Isocrates.
HAply some Reconciliation of so dis∣agreeing sentences may be found out from the larger or stricter acception of a ly, Neither do we here take a ly, as it falls from a man unwittingly * 1.1489; as, to ly, and to tell a ly, are distinguisht in Gel∣lius † 1.1490: but we speak of that, which is knowingly uttered with a signification that agrees not with the conception of the mind, whether in understanding, or in willing. For, that which is first and im∣mediatly shewed by words and the like notes, are the conceptions of the mind: Therefore, he doth not ly, who spea∣keth a false thing, that he thinketh to be true; but, who speaketh a thing true in∣deed, which yet he thinketh false, He ly∣eth. It is then the falsity of signification, which we require to the common nature of a ly. Whence it follows, when any word or sentence is equivocal and admit∣teth more significations than one, (whe∣ther from vulgar use, or custom of art, or
some intelligible figure) then, if the minds Conception agreeth to one of those signi∣cations, a ly is not made though it may be thought the hearer will take it another way † 1.1491. True indeed it is, such a speech rashly used is not to be approv'd; but it may be honested by the causes annexed to it; viz. If it pertein to the instruction of him that is committed to our care, or to the avoyding an injurious question. Christ himself hath given us an example of the former sort, when he said, Our friend Lazarus sleepeth, which the Apostles received as if 'twere spoken of taking his rest in sleep. And, what he had said about * 1.1492 restoring the Temple, meaning it of his Bo∣dy, * 1.1493 he knew the Jews understood of the Temple properly called so. So, when he * 1.1494 pronised to the Apostles twelve seats of honour and next unto the King, after the manner of the Princes of Tribes among the Hebrews (and elswhere, the drinking * 1.1495 of new wine in his Fathers Kingdom) he seems to have known well enough, that this would not otherwise be taken by them, than of some Kingdom of this life; * 1.1496 with hope whereof they were full, to the very moment of Christ's Ascension into Heaven. The same our Lord, by the Am∣bages of Parables speaks unto the people, that hearing they might not understand him; that is, unless they did bring such attention and docility, as was meet. An example of the later sort may be given out * 1.1497
of profane history in L. Vitellius, with 〈◊〉〈◊〉 Narcissus was instant, that he should speak openly, and tell him the plain truth yet he did not so prevail, but that he gav•…•… answers doubtfull, and inclining whither they were drawn † 1.1498. The saying of the Hebrews * 1.1499 is pertinent here: If one knows to use the perplexed speech, well; if no•…•…, let him hold his peace. On the contrary, it may happen, that to use such a kind of spea∣king may be not only illaudable, but wic∣ked, as, when the honour of God † 1.1500 or Love due to our Neighbour * 1.1501, or reverence to our Superiour, or the nature of the thing in hand, exact, that the thoughts of the heart be made apparent clearly in the words, as in contracts we have said, that is to be ope∣ned, which the nature of the contract is conceived to require; in which sense that of Cicero may be fitly taken: All lying is to be banished out of contracts and bar∣gains; taken from an old Attick Law † 1.1502. Where the word, Lying, seems to be un∣derstood so large, that it includes also as obscure speech. But, speaking properly we have now excluded it from the notion of a ly.
IT is then requir'd to the common no∣tion of a Ly, that what is said, written, noted, intimated, cannot otherwise be un∣derstood, than in that sense, which is dif∣ferent from the mind of the Author. And to this larger notion, the stricter significa∣tion of a ly, as it is naturally unlawful, must needs add some proper difference: which, if the matter be rightly examined, at least according to the common estima∣tion of Nations, no other seems possible to be given beside the repugnance with the existing and remaining right of him to whom the speech or note is directed. For, that no man lyes to himself, how false so∣ever he speaketh, is plain enough. Right I understand here, not of every sort, and extrinseeal to the thing, but, which is proper and connate to this business. And this is nothing els but the liberty of judging † 1.1503, which Men speaking together are, as 't were by a certain tacit agreement, understood to owe unto them whom they speak. For this and no other is that mu∣tual obligation, which men had consented to introduce, so soon as they instituted the use of words and the like notes: with∣out which obligation, such an Invention had been in vain. And we require, that,
at the time of speaking, that right sub•…•… and remain: for, it may fall out, that the right that was may be taken away by another right supervenient; as a debt, by acceptilation, or cessation of the condi∣tion. It is required further, that the right which is impaired be his with whom we speak, not anothers; as also in contracts, injustice is not, but from the impaired right of the contractors. Hither perchance you may not amiss refer, that Plato after Simonides reduces Truth of speech to Ju∣stice * 1.1504; and, that the holy Scriptures often∣times describe that forbidden ly, by a te∣stimony or speech against ones neighbour; and, that S. Augustin himself, in consti∣tuting the nature of a ly, puts the intent of deceiving † 1.1505. And Cicero will have the question of speaking truth referred to the fundamentals of Justice. Now, the right of which we have spoken, it seems, may be taken away, as by the express consent of him with whom we deal (as, if one hat•…•… foretold, he will speak false, and the o∣ther hath given leave:) so also by his ta∣cit consent, or presumed upon good rea∣son, or by opposition of another right, which, by the Common judgment of all men, is of much more value. Three things being well understood, will furnish u•…•… with many illations, conducing much 〈◊〉〈◊〉 reconcile the different opinions abov•…•… mention'd.
FIrst, although something be spoken to an Infant, or one beside himself, that hath a false signification, therein is not the crime of a ly. For it seems to be permitted by the common sense of all men, that the simple age of Children be pleas'd * 1.1506 with fictions. And Quintilian speaking of Children, saith, We feign many things for their benefit. The next reason is, seeing Infants and mad men have not liberty of judgment, there can be no injury done them, as to that liberty. Secondly, as oft as the speech is directed to him who is not deceived, though a Third draw from thence a false perswasion, it is no ly: Not •…•…n respect of him, to whom the speech is; because his liberty remains entire even as theirs to whom a Tale is told which they understand to be a Tale; or to whom is uttered a figurative speech, ironicall or hyperbolicall (which figure, as Seneca * 1.1507 •…•…aith, by a ly arrives at truth, and is cal∣led by Quintilian a lying superjection:) Nor in respect of him who hears it on the by; because the speaker hath nothing to do with him, and so to him there is no •…•…bligation. Yea, if himself create to him∣self an opinion of that which is not said •…•…o him, but to another, he hath somewhat •…•…o impute, not to another, but to himself.
For, if we will judge rightly, in respect of him, the speech is no speech, but a thing of an uncertain signification. Wherefore, neither was Cato Censorius in any fault, who falsly promis'd aid to the Confede∣rates; nor Flaccus, who told others, that the enemies City was taken by Aemilius, though the enemies were deceived there∣by; * 1.1508 the like whereof Plutarch relates of Agesilaus. For, nothing was here spo∣ken to the enemies; and the nocument that followed thence, is a thing extrinse∣cal, and by it self not unlawful to be wi∣shed or procured. To this kind Chryso∣stom & Hierom * 1.1509 have referred the speech of Paul, wherewith he reprehended Pe∣ter, as too much Judaizing, at Antic•…•…; For they think Peter understood well e∣nough, it was not serious; and in the mean, care was had for the infirmity of the By-standers. Thirdly, as oft as it is certain, He, to whom the speech is, wi•…•… not take in evill part the impairing of his liberty in judging, yea will give thanks for the same, by reason of some commod•…•…∣ty he attains thereby; then also, a ly stri∣ctiy called so, that is, injurious, is not made: as, He would not commit These who, upon presumption of the Masters will, should spend some small matter o•…•… his, to the end he might thence gain hi•…•… great profit. For, in these things whic•…•… are so certain, the will presumed is a•…•… counted for the express. And to a willi•…•…
man, 'tis certain, injury is not done. So then, he seemeth not to sin, who either com•…•…ortech a sick friend with a perswasion not true, as Arria comforted Paetus, his son being dead; which History is in Pli∣nie's * 1.1510 Epistles: or addeth courage to one ready to lose the battell, by a false re∣port; that revived by it, he may get victo∣ry and safety to himself, and being so de∣ceived may not be taken * 1.1511, as Lucretius speaks. Democritus: We must by all means speak the truth, where it is better. * 1.1512 Xenophon; We may deceive our friends for their good. And Clemens Alexandri∣nus grants, We may use a ly for a remedy. Maximus Tyrius: The Physician deceives his Patient, the General his Soldiers, and the Master of the ship the Saylers: nor is there any hurt in this. Proclus on Plato gives the reason: For that which is good, is better than the truth. Such is that in Xenophon, That the Confederates are at hand: and that of Tullus Hostilius, That * 1.1513 by his command the Albans wheel'd about: and that wholsomely, as Histories call it, of the Consul Quinctius, That the ene∣mies fled in the other wing: and the like * 1.1514 every-where in the Historians † 1.1515. And in this kind, it is to be noted, the hurt of
the judgment is so much less, because most part it is momentany, and within a little while the Truth is manifest. A Fourth Instance and neer to the former is, as oft as He that hath a right supere∣minent * 1.1516 over all the rights of Another, useth that right for his good, whether pro∣per or publick. And this especially Plato seemeth to have regarded, who grants to those that have command, to speak false. When he seemeth to grant the same some∣times to Physicians * 1.1517, and sometime to deny it, we may perhaps recon∣cile him to himself by this distinction, making him understand in the first place Physicians publickly called to this office, in the Later them that privately assume it to themselves. Yet God, though he hath supreme power over men, cannot ly, as the same Plato rightly acknowledges, be∣cause it is a mark of infirmity to have such a refuge. An example of unblamable false speaking may perhaps be given in Joseph † 1.1518 (Philo approving it) who being Vice-Rey of Egypt feignedly accuseth his brethren, first as spies, then as theeves, not having such an opinion of them: And in Sal•…•…∣mon, who gave a Specimen of the wise∣dom given him by God, when, before the women contending about the Child, he pronounced those words, which signified a will of dividing the Child, and yet meant nothing less, but intended to render her Child to the true Mother. It is a saying
of Quintilian, Sometimes common utility * 1.1519 exacteth of us, to defend also what is false. A Fift may be, as oft as the life of an innocent person, or something equal to it, cannot otherwise be saved; and Another cannot otherwise be averted from perfe∣cting some wicked enterprize † 1.1520. Such was the fact of Hypermemnestra * 1.1521, who is wont to be praised upon this score.
A Larger license, than this we have * 1.1522 speken of, is given by many wise wr•…•…ers, that determine it to be lawful to use false speech to enemies. So, to the Rule of not lying, this exception, unless to enemies, is added by Plato, Xenophon, Philo among the Jews; among the Chri∣stians Chrysostom * 1.1523. Whither perhaps you may not amiss refer, that extent in holy Scripture, the ly of the Jabusues * 1.1524 in the siedge, and something like it of the Prophet Elisha * 1.1525; and of Valerius Leu•…•…, who boasted he had slain Pyrrhus. To the third, fourth and fift of those observati∣ons newly set down, perteins a place of Eustratius Metropolitan of Nicaa upon the sixt of the Ethicks: Who rightly c•…•…∣sulteth is not one who necessarily speitk•…•… truth; for it may be that one rightly c•…•…∣sulting may consult how he may ly on pur∣pose, either to his enemy, to deceive him o•…•… to his friend, to rescue him from 〈◊〉〈◊〉 examples whereof Histories are full of And Quintilian, If a Robber is to be aver∣ted from killing a man, or an enemy to be deceived for the safety of our Coun∣try, saith, that which otherwise is to 〈◊〉〈◊〉 reprehended in servants, will be co•…•…∣mendable in a wise man. Those saying do not please the Schools of later Age•…•…
who have chosen S. Augustin † 1.1526 of all the Antients, to be followed by them almost in all things. But the same Schools do admit tacit interpretations, so abnorrent from all use, that it may be doubted, whe∣ther it is not better to admit false spea∣king against some, in the cases mention'd, or in some of them, (for I take not upon me here to define any thing) than so in∣discreetly to exempt from false speaking these sayings: as when they say, I know not, it may be understood, to tell thee: And, I have not, it may be under∣stood, to give thec: and the like, which common sense, rejecteth and which if they be admitted will effect, that one af∣firming may be said to deny the same thing, and denying to affirm. For, it is most true, that there is no word but may receive a doubtful interpretation * 1.1527, seeing all, beside the significat of the first notion, as they call it, have another of the se∣cond † 1.1528, and that various, according to va∣rious arts, and other senses too by Meta∣phor or the like figures. Neither do I more allow of their Device, who, as if they did abhor the word not the thing call them jests, which are utterd with a coun∣tenance and pronuntiation most serious.
MOreover, we must know, what we have said of false speaking is to be referd to asserting speech, and such as hurteth none but a publick enemy, not to promising † 1.1529. For, upon promise, as afore we began to say, a special and new right is confer'd to him, to whom the promise is made: and that hath place even amongst enemies, without any exception of hosti∣lity now being; nor only in express pro∣mises, but also in tacit, as in calling see parly; as we shall declare, when we come to that part, which is of keeping faith in war. And further, that is to be repeated out of our former Dissertation of Oaths, whether an oath be asser•…•… or 〈◊〉〈◊〉, it hath the vertue to exclude all exceptions, which might be derived from the person of him with whom we deal: because we have to do, not with man only, but with God, to whom we are bound by our Oath, although no right ari•…•…e to man. In the same place we have also said, that it is not in an Oath as in other words; wherein, that we may be excused from a ly, are admitted any In∣terpretations not altogether unusual; 〈◊〉〈◊〉 truth is exactly requir'd in that sense, which the man that hears it, is supposed
verily to understand. So that, their im∣piety is very much to be detested, who doubted not to assert, that as Childern with toys, so men are to be deceived with Oaths.
WE know also, that some kinds of frauds, which we have said to be allowed naturally, were refused by some Nations or men: but that was, not out of an opinion of injustice, but by reason of a certain magnamity, and sometime con∣fidence * 1.1530 of their own strength. In Aelian is extant a saying of Pythagoras, That man comes neerest unto God in two things: in speaking truth always, and in doing good to others: and in Jambli∣chus, * 1.1531 Veracity is said to be the Guide to all good both Divine and human. Ari∣stotle's Magnanimous man loves to speak truth, and boldly. Plutarch saith, It is a servile thing, to ly. Arrianus * 1.1532 of Pro∣lome: To him, being ae King, it was more dishonourable to ly, than to any other. Alexander * 1.1533 in the same historian; It is unworthy of a King, to speak any thing to his Subjects, but the Truth. Mamerti∣nus of Julian: Admirable in our Prince,
is the concord of his mind and tongue; He knows a ly is a sin, not only of a low and little mind, but servile too: and seeing that poverty indeed, or fear, make men ly∣ars, the Emperour that lyes understands not the greatness of his fortune. Plutarcó commends Aristides, for his constant nature, holding fast that which is just, and abhorring to ly, though in sport. Pre∣bus of Epaminondas: He was so stud•…•… of truth, that he would not ly, 〈◊〉〈◊〉 not 〈◊〉〈◊〉. Which indeed is the more to be observed by Christians, because simplicity is not * 1.1534 only commanded them, but vain speech forbidden, and He is proposed for an ex∣ample, in whose mouth was found•…•… guile. Lactantius; That true and just Traveller saith not that of Lucilius, It is not my property to ly to my friend and fa∣miliar: but also to an enemy and stran∣ger, he will think he must not ly: nor will he commit at any time, that his tongue the interpreter of his mind should disagree with his meaning. Such a one is Neopte∣lemus in Sophocles * 1.1535, excelling in a gene∣rous simplicity, as Dion Prusaeensis hath well noted. So, Alexander said he would not steal the victory. And Polybius saith, the Achaians abhorred from all fiaud a∣gainst the enemies, because they esteemed that only to be a true victory, which drew a confession of it from the enemies them∣selves. Such were the Romans till the end of the second Punick war.
Aelian: Valour is proper to the Romans, not victory gotten by fraud and cunning. Whence, when Perseus King of Mace∣don was deceived by hope of Peace, the old Senators said, Those were none of the Roman arts; Their Ancestors never wa∣ged war to shew their wit but their va∣lour; They left such deceits to the Car∣thaginians and Greeks, who accounted it more glorious to ensnare the enemy than to beat him. And then they added: At present perhaps Deceit may be more profitable than valour, but a perpetual vi∣ctory is obteined over his mind, who is forc'd to a confession, that he is overcome, neither by art nor chance, but by plain battell in a just and pious war. And in af∣ter-times, we read in Tacitus, That the * 1.1536 Romans were wont to revenge themselves of their enemies, not by fraud, not secret∣ly,
but openly and in arms. Such also were the Tibarens, who did agree with the * 1.1537 enemy about the place and time of bat∣tell. And Mardonius in Herodotus saith the same of the Grecians in his time.
LAstly, to the manner of acting this is pertinent: Whatsoever is not law∣ful for any one to do, to impell or sol•…•…cite him to do it is not lawful nei∣ther. For example; It is not lawfull for a subject to kill his King, nor to yield up Towns without publick Counsell, nor to spoil the Citizens. To these things there∣fore, it is not lawfull to tempt a subject, that remaineth such. For always, he that gives cause of sinning to another, sins also himself. Nor may any reply, that to Him, who impelleth such a man to a wicked act, that act, namely the killing of his enemy, is lawfull. He may indeed law∣fully do it, but not in that manneer. Augustin well: It is all one, whether your self commit a sin, or set another to do it for you. It is another thing, if, to effect a matter lawful for him, one use the offerd service of a man sinning with∣out any other impulse but his own: That this is not unjust we have proved elswhere by the example of God himself. We re∣ceive a fugitive by the Law of War,
saith Celsus † 1.1538; that is, It is not against the Law of War, to admit him, who ha∣ving deserted the enemies part, electeth ours * 1.1539.
LEt us come to those things, which des∣cend from the Law of Nations. They belong partly to every war, partly to a certain kind of war. Let us begin with generals. By the meer Law of nature, no man is bound by anothers act, but the successor of his goods: for, that Goods should pass with their burthens, was in∣troduced together with the dominion of things. The Emperor Zeno saith, It is contrary to natural equity, that any * 1.1541 should be molested for other mens debts. Hence the Titles in the Roman Law, That neither the wife be sued for the Husband, nor the husband for the Wife; nor the Son for the Father, nor the Father or Mo∣ther * 1.1542 for the Son. Nor do particular men owe that which the Community owes, as Ulpian hath it plainly: to wit, if the Com∣munity hath any Goods: for otherwise, particulars are bound as they are a part of
the whole. Seneca; If one lend my Coun∣try * 1.1543 mony, I will not call my self his debtor: yet will I pay my share. He had said a∣fore, Being one of the people, I will 〈◊〉〈◊〉 * 1.1544 pay as for my self, but contribute as for 〈◊〉〈◊〉 Country. And, Every one will owe, not 〈◊〉〈◊〉 a proper debt, but as a part of the publick. Hence it was specially constituted by the * 1.1545 Roman Law, that none of the Villagers should be tyed for the other debts of Vil∣lagers: and elswhere, no possession of a∣ny man is charged with the debts of o∣thers, no not with the publick debts: and * 1.1546 in the Novell of Justinian, Pignorations † 1.1547 for others are prohibited, the cause being added, that it is against reason for one to be charged with anothers debt: where al∣so such exactions are called odions. And King Theodoricus in Cassiodore * 1.1548 calls this Pignoration of one for another a wicked licence.
ALthough these things be true, yet by the voluntary Law of Nations it might by induced, and it appears to have been induced, that, for that which any Civil Society, or the head thereof, ought to make good, either by it self pri∣marily, or because in anothers debt it hath also made it self lyable by not doing right; for that, I say, are tyed and bound all corporal and incorporal Goods of them that are subject to the same society or head. And it was a certain necessity that effected this; because without this, great licence would be given to the doing of injuries, seeing the Goods of Rulers of∣tentimes cannot so easily come to hand, as of private men who are more. This then * 1.1549 is among those Laws, which Justinian saith were constituted by the Nations * 1.1550, upon the urgency of human needs. How∣beit, this is not so repugnant to nature, that it could not be induced by custome and tacit consent, when even without any cause sureties are bound by consent alone. And there was hope, that the members of the same society might more easily obtain mutual right, and provide for their own indemnity, than foreiners, who in many places are very little regar∣ded.
Besides, the benefit of this obligation was common to all Nations, so that they which were one time grieved with it, another time might be eased by the same. Moreover, that this custome was received, appears not only out of full wars, which Nations wage against Nations (for in these, what is observed may be seen in the forms of denuntiation * 1.1551, and in the proposal * 1.1552, and the decree * 1.1553 it self;) but also, where matters are not come to that fulness of war, yet there is need of a cer∣tain violent execution of right, that is, imperfect war, we see the same to be used † 1.1554. Agesilaus of old, said to Phar•…•…∣bazus, a subject of the King of Persia * 1.1555, We, O Pharnabazus, when we were the Kings friends carried our selves like friends towards all his, and now being be∣come his enemies we carry our selves like enemies. Wherefore, seeing you will be out of the things that are His, we do justly op∣pose him in you.
ONe species of that execution which I speak of, was that which the A∣thenians called * 1.1556 Apprehension of men: of which the Attick Law thus, If one have force offerd him, and dy, his Kins∣man and friends may apprehend men, till either the Man-slayers be duly punisht, or yielded: but it is lawful to apprehend only three men, and no more. Here we see, for the debt of the City, which is bound to punish her subjects that have hurt others, •…•…s tyed a certain incorporal right of the subjects, that is, the liberty of staying where they please, and doing what they will; so that they may be in servitude, until the City do what she is bound to do, that is, punish the Guilty. For, though the Epygtians, as we learn out of Diodorus Siculus, argued, that the body or liberty ought not to be bound for a debt, yet therein is nothing contrary to nature; and the custome, not of the Greeks only, but of other Nations prevailed on the other side. In like manner, to recover 〈◊〉〈◊〉 Citizen taken captive by manifest in ju∣•…•…y, are the Citizens of that City where the injury was done, reteined. Wherefore •…•…ome at Carthage would not suffer Ari∣•…•…on the Tyrian to be taken, For, said
they, the same will befall the Carthagi∣nians * 1.1557 at Tyre and in other towns of Trade, wherto they often resort. Another specier of violent execution is * 1.1558 Pignoration among divers Nations; which the later Lawyers * 1.1559 call the right of Reprizals; the Saxtus and the English, Withernam; and the French, even when it is obtained of the King, Letters of Marc. And this ha•…•… place, say the Lawyers, where right is denyed.
RIght of Reprizals cometh, not only if Judgment cannot, within fit time be obtained against the guilty part, 〈◊〉〈◊〉 Debtor; but also if in a matter not doubt∣ful (for in a doubtful matter there is 〈◊〉〈◊〉 presumption for them who are elected 〈◊〉〈◊〉 publick judgments:) judgment be given plainly against right. For, the authori∣ty of the judge is not of the same val•…•… over foreiners, as over subjects. Even a∣mongst subjects, it taketh not away w•…•… was truly owed: A true Debtor, 〈◊〉〈◊〉 he be abslved, yet by nature * 1.1560 remains 〈◊〉〈◊〉 Debtor, saith Paul * 1.1561 the Lawyer: A•…•… when, by the injury of the judge, the Cu•…•…∣tor had taken away from the owner a th•…•… which was not the debtors, as engage to him, and the question was put, whe•…•… the debt being paid, the thing ought 〈◊〉〈◊〉
restored to the Debtor, Scaevola prov'd it ought to be restored. There is this diffe∣rence, that subjects cannot by force hinder the execution, even of an unjust sentence; nor lawfully pursue their right by force by reason of the efficacy of the power over them: but foreiners have right to com∣pell, which yet they cannot use lawfully, so long as they may obtein their own by judgment. Upon such a ground then, that either the bodyes or movables of his sub∣jects, who renders not right, may be taken, 'tis not introduc'd indeed by nature, but commonly received by custome. The most antient example whereof is in Homer, * 1.1562 where Nestor is related, for horses taken from his father, to have driven away the Cattell of the Elidenses: and in the same narrations, All they were by proclama∣tion call'd together, to whom the Eliden∣ses were any thing endebted; to the end, that every one might have his part. But, that the life of innocent subjects should be engaged for such a cause, perhaps was believed amongst some people, upon this principle, that they believ'd every man had full right over his own life, and that might be transferd on the Common∣wealth: which, we have said elswhere, is not probable, nor consentaneous to sounder Theology. Nevertheless it may fall out, not by intention, but by acci∣dent, that they may be slain, who by force will hinder the execution of right.
But if this be foreseen, by the Law of cha∣rity (we have shewed other where) the prosecution of right is rather to be omitted seeing, by that law, the life of man ought to be more esteemed (among Christ•…•… especially) than our Goods, as we here demonstrated already * 1.1563.
BUt, in this matter as well as in others, * 1.1564 we must beware, that we confound not those things which are properly of the Law of Nations, and those which are constituted by the Civil Law or the a∣greements of people. By the Law of Na∣tions are under pignoration all subjects doing injury, who are such by a perma∣nent cause, whether they be natives, 〈◊〉〈◊〉 strangers; not they, that are in any Coun∣trey, passing through it, or staying a li•…•… while. For, pignorations are introdu∣ced after the example of burthens, which are brought in for discharging of publick debts: from which they are freed, who only for a time are subject to the Laws of the place. Yet, from the number of sub∣jects, are exempted, by the Law of Na∣tions, Embassadors, not sent unto 〈◊〉〈◊〉 enemies, and their Goods. But by the Ci∣vil Law of States are usually excepted the
persons of women and Infants; and the Goods also of Scholars, and Merchants. By the Law of Nations, every one hath the right of pignoration, as also at A∣thens * 1.1565 in the apprehension of men. By the Civil Law of many Countries it is wont to be asked, in some places of the Highest power, in some of the Judges. By the Law of Nations, ipso facto, the do∣minion of the things taken is acquired, to the sum of the debt and costs, so that the •…•…sidue ought to be restor'd † 1.1566 By the Ci∣vil Law, they that are concernd, are wont to be cited; and the things are to be sold by publick authority, or addicted to those that are concern'd. But, these and other points are to be learned of the Civil Law∣yers, and namely of Bartolus, who hath written Of Reprizals. Onely this I will •…•…ere add, because it belongs to the molli∣•…•…ying of this right, rigid enough of it self, That whosoever, by not paying what they •…•…wed, or by not doing justice, gave cause •…•…o pignorations, they are obliged, by na∣tural and Divine Law, to repair their •…•…osses * 1.1567 who are dammaged thereby.
ABove * 1.1569 we began to say, that a just war, in approved authors, is often called so, not from the cause whence it a∣riseth, nor from the greatness of the acti∣ons, but by reason of some effects of law. What this war is, is best understood by the definition of enemies in the Roman Lawyers. Enemies are they, who against * 1.1570 us, or against whom we do publickly decree war: the rest are theeves or robbers, saith * 1.1571 Pomponius: and so saith Ulpian too. Where, what they speak of the Roman people, we must understand of every supreme power He is an enemy, saith Cicero, who hath a Commonwealth, a Court, a * 1.1572 Treasury, consent and concord of Citizens, and some way, if occasion be, of peace and league. Yet doth it not presently cease to be a Commonwealth or City, if it com∣mit some unjust act, even in Common; nor is a company of Pirats or Robbers a Commonwealth, though perhaps they keep a kind of equality among them∣selves, without which no company is able to consist. For, These associat them∣selves to do mischief * 1.1573: They, although sometimes they are not without fault, yet hold society to maintain right, and they
do right to others, if not in all things ac∣cording to the Law of Nature (which, a∣mong many people, is in part oblitera∣ted:) at least according to agreements made with every other Nation, or ac∣cording to customs. So the Greeks, at what time it was accounted lawful to take spoil at Sea, absteined from slaugh∣ters and populations by night, and from stealing Oxen that plowed, as the Scho∣liast * 1.1574 upon Thucydides observes. And o∣ther Nations living also upon the spoil, when they were come home from Sea, sent unto the owners to * 1.1575 redeem (if they pleased) at an equal rate, what they were robbed of, as Strabo saith. Now the principal, in moral matters, is in∣stead of the form; and, as it is rightly said by Cicero, and Galen, The denomi∣nation * 1.1576 is given from the greater part. Wherefore the same Cicero speaketh too crudely, saying in his third De Republi∣câ, where is an unjust King, or unjust Senators, or an unjust people, there is not now a vitious, but no Common∣wealth. * 1.1577 Which sentence S. Augustiu cor∣recting saith, Yet I shal not therefore con∣clude it to be no people, nor Common∣wealth, * 1.1578 so long as there remaineth a ra∣tional multitude joyned together in a so∣ciable Communion of things which they love * 1.1579. A diseased body is nevertheless a
body: and a City, though very sick, is a City, as long as Laws remain, Courts of Justice remain, and other things necessa∣ry, that foreiners may there obtain right, as well as private men among themselves. Better spake Dion Chrysostom, who said, the Law (that especially which makes the right of Nations) is in a Common∣wealth, as the soul in the body of man: which being taken away, 'tis no longer a † 1.1580 Commonwealth. And Aristides in that Oration wherein he exhorts the Rho∣dians to concord, shews that many good Laws may consist, even with Tyranny. Now, although there be so great a diffe∣rence between a people how wicked soe∣ver, and them that being not a people come together for wickedness, yet may a change happen, not only in single per∣sons (as Jephtha, Arsaces, Viriatus, of Captains of Robbers became just Cap∣tains) but in companies also, as, they that were only Robbers, embracing another kind of life may become a Common∣wealth * 1.1581, Moreover, who they are that have the Highest power, we have said a∣bove; whence it may also be understood, If any have it in part, for that part they may wage a just war: and much more they, who are not subjects, but unequal∣ly confederate † 1.1582, as, between the Romans
and their Fellows, though inferiour in League, the Volscians, Latins, Spaniards, Carthagenians, all things of a just War * 1.1583 were exercised, as the Histories inform us. But, that war may be just in this sense, it sufficeth not, that it be waged between Highest powers on both sides: but it is requisite, as we have heard, that it be publickly decreed, and truly so decreed publickly, that the signification thereof be made by the one party to the other † 1.1584: whence Ennius calls them promulgata pralia, promulged battells. It is a just war which is waged by edict, (saith an antient writer in * 1.1585 Isidore) things being re∣quir'd, or for resistance of Enemies: and Livy put it in the description of a just war, that it be commenced with an Edict, and in an open manner † 1.1586
FOr the understanding of the places last cited, and other like, about the promulgation of war, we must accurately distinguish, what things are due by the Law of Nature, what by nature are not due, but honest; what things by the Law of Nations are requir'd to the proper ef∣fects of the same Law, and what proceed from the peculiar institutes of some Na∣tions. By Natural Law, where either force offerd is repelled, or punishment exacted of one that hath offended, no de∣nuntiation is required there. And this is * 1.1587 that which Stenelaidas the Ephor saith in Thucydides: We must not stand debating with words and arguments; being iniur'd beyond words. And Latinus in Halicar∣nassensis: He that is assaulted with 〈◊〉〈◊〉 is wont to repell his enemy. And Aelin out of Plato saith, War undertaken to re∣sist violence is indicted, not by an Herall, but by nature. Hence Dion Chrysolm affirms * 1.1588, Most wars are made without proclamation. And for no other cause Livy objects to Menippus prefect of Antioch, that he had slain certain Romans, wa•…•… being neither proclam'd, nor so begun, that they had heard of swords or any
blood as yet drawn: thereby shewing, ei∣ther of these two might suffice for a de∣fense of his deed. Neither is Indiction more necessary by the Law of Nature, if a Lord will lay hands upon his own goods. But, as oft as one thing is inva∣ded for another, or the debtor's goods for the debt; and much more, if one will seise upon the goods of them that are sub∣ject to the debtor, Interpellation is re∣quired, whereby it may appear, we had no other way to come to our own, or that which is due unto us. For, that right is not primary, but secondary and surrogate. So also, before the Supreme Governour may be invaded by war for the debt or the offense of the subject, there ought to intercede an Interpellation, that may con∣stitute him in a fault, whereby he may be esteemed to do a dammage, or to be delinquent; according to what we have discoursed above. Yet further, where the Law of Nature commandeth not such an interpellation to be made, it is honestly and commendably * 1.1589 interposed, to wit, that the adverse party may abstein from offending any more, or the offense given may be expiated by repentance and satis∣faction; according to what we have said of using means to avoid war * 1.1590. Pertinent here is that Precept * 1.1591 which God gave unto the Hebrews, that they should make offer of Peace to the City that was to be assaulted: which precept, being specially
given to that people, is, by some, ill con∣founded with the Law of Nations. Nor indeed was that any other peace but 〈◊〉〈◊〉 condition of subjection and Tribute. Cy∣rus, when he had marched into the Ar∣menians Country, before he did hurt any man, sent Messengers to the King to de∣mand Tribute due upon the League, and soldiers: Supposing that to be more friend∣ly and courteous, than to lead on farther, and s•…•…r nothing; As Xenophon speaks in that History. But, by the Law of Nati∣ons, to those peculiar effects in all cases is requir'd denuntiation, not on both, but on the one party. This denuntiation is either Conditionate, or Pure. Conditio∣nate, where it is join'd with Remanding of Things. And, in the name of Res re∣peritae the * 1.1592 Heralds Law comprehended, not only vindication by right of dominion, but also the prosecution of that which is due upon a Civil or Criminal cause, as Servius explains it rightly. Thence was * 1.1593 that in the forms, To be rendred, To be satisfyed, To be yielded: Where, To be yielded, as we have said elswhere, is to be understood, unless they that are call'd up∣on, will rather punish the guilty them∣selves. This requiring of Things, Plixy testifies, was named Clarigation. That de∣nuntiation * 1.1594 in Livy is conditionate: That they will with all their power depell that injury, except it be remedied by those that did it: And in Tacitus: Unless they spec∣dily
bring the offenders to punishment, He will make promiscuous slaughter * 1.1595. Pure denuntiation is that which is specially Indiction, or Edict, where either the other hath already begun the war (this is that which in Isidore is called war to beat off men) or himself hath committed such faults as deserve † 1.1596 punishment. But some∣time the Pure follows the Conditionate, though that be not necessary, but ex abun∣danti. Hence is that form: I testify, that people is unjust, and will not do right * 1.1597. This also is an argument of supervacuous observation, that war hath oft been pro∣clamed on both sides, as the Peloponnesian by the Corcyraeans and Corinthians, when it is sufficient that it be indicted and pro∣clamed by either. Furthermore, from the custom & institutes of some Countries, not from the Law of Nations are the White Rod * 1.1598 among the Greeks, the Turfs and bloody spear, among the Aequicolae first, and by their example among the Romans; the renouncing of friendship and society, if there had been any; thirty solemn days after demaund made; the throwing of the spear, again † 1.1599 and other things of like kind, which ought not to be confounded with those that properly belong to the Law of Nations. For a great part of these
ceased to be used, saith Arnobius, in 〈◊〉〈◊〉 * 1.1600 time; yea, in Varro's time, some of them were omitted. The third Punick War 〈◊〉〈◊〉 at once indicted and begun. Maecen•…•… Dion will have some of them to be pro∣per to a popular State.
MOreover, War indicted against him, who hath the highest power over the people, is witha l suppos'd to be in∣dicted against all His, not only subjects, but those too who will join themselves unto him, as being an accession to his party: and this is that which the later Lawyers say, The Pri•…•…ce being diff•…•…ed, his * 1.1601 Adherents also are diff•…•…ed. For, to indict war, they call To diff•…•…. Which is to be understood of that same war, which is waged against him to whom it is indicted: As, when war was denounced against Antiochus, They were not pleased to denounce it against the Aetolians apart, because they had openly join'd themselves with Antiochus: The Heralds answerd, The Aetolians have declared war of their * 1.1602 own accord against thomselves. But, th•…•… war being ended, if another People 〈◊〉〈◊〉 King, for supply of aids, is to be wa•…•… against, that the effects of the Law of Na∣tions
may follow, there will be need of a new Indiction. For now, he is not •…•…ookt upon as Accessory, but Principal. Wherefore it is rightly said, that, by the Law of Nations, neither the war of Man∣lius upon the Gallo-Greeks, nor of Cae∣sar upon Ariovistus, was * 1.1603 Lawfull: for they were not assalted now, as an ac∣cession of a Neighbours War, but prin∣cipally: to which purpose, as by the Law of Nations Indiction, so by the Roman Law a new command of the Ro∣man people was necessary. For, what was said in the proposal against Antio∣chus: Was it their will and pleasure, that * 1.1604 War should be enterd with King Antio∣chus, and those that followed his party: (which was observed too in the Decree against King Perseus:) seemes truly un∣derstood, * 1.1605 so long as the War continued with Antiochus or Perseus, and of those that really immixed themselves in that War.
NOw, the cause why Nations requir'd Denuntiation to that war, which we have said to be just by the Law of Na∣tions, was not that which some allege; * 1.1606
that they might do nothing privily or 〈◊〉〈◊〉 deceit; for that perteins rather to the 〈◊〉〈◊〉 cellence of their valour, than to righ•…•… some Nations are read to have appointed their enemies the day and the place of battell * 1.1607; but, that it might certainly ap∣pear, the War was not waged by a prin•…•… undertaking, but by the will of either people, or their Heads. For, thence are sprung those peculiar effects, which have place, neither in war against Rob∣bers, nor in that which a King wageth against his Subjects. Therefore Seneca spake distinctly; Wars were indicted a∣gainst Neighbours, or waged against Ci∣tizens. As to that, which is noted by some, and shew'd by examples, That ever in such wars the things taken become theirs that take them; it is true, but on the one part onely, and that by natural rig•…•… not by the voluntary right of Nations as that, which provides for Nations only not for those which are no Nation, or part of a Nation. Besides, they erre 〈◊〉〈◊〉 * 1.1608 this, that they think, War undertaken for defense of ones self or ones Goods needs no indiction; for it doth need, not simply, but in regard of those eff•…•… which we have begun to speak of, and 〈◊〉〈◊〉 explain anon.
NEither is that true, that War may not be waged presently as soon as it •…•…s indicted, which Cyrus did against the Armenians, the Romans against the Car∣thaginians, as we said even now. For, In∣•…•…iction, by the Law of Nations, requi∣•…•…eth no time after it. Yet may it come to •…•…ass, that, by natural right, some time may be required according to the quality of the business; to wit, when things are demanded, or punishment requir'd upon the guilty, and that is not denyed. For •…•…en, such time is to be allowed, where∣•…•… that which is requir'd may commodi∣•…•…ully be done. And, if the right of Em∣•…•…assages be violated, it will not there∣fore be unnecessary to denounce War; but 〈◊〉〈◊〉 will suffice to do it as it may be done •…•…afety, that is, by Letters: as also cita∣•…•…ons and other denuntiations are usual∣ly made in places not safe.
TO that of Virgil * 1.1610, Then it will be lawful to hate, and fight, and 〈◊〉〈◊〉 spoil: Servius Honoratus, when he had deduced the Original of the Heralds law from Ancus Martius, and farther from the Aequicolae, saith thus: If at any time men or beasts were by any nation taken away from the people of Rome, the Pater pa•…•… tus went with the Heralds, that is, Pr•…•… who have authority in making of Leag•…•… and standing before the bounds, 〈◊〉〈◊〉 loud voice, pronounced the cause of the War; and, if they would not restore the things taken; or deliver up the Author of the injury, he threw a spear, which 〈◊〉〈◊〉 the beginning of fight; and thence forbid was lawful, after the manner of War, 〈◊〉〈◊〉 take the spoil † 1.1611. Whereby we learn, 〈◊〉〈◊〉 there are certain proper effects * 1.1612 of We indicted between two Nations or th•…•… heads, which effects do not follow 〈◊〉〈◊〉 as it is considered in its own nature. Th•…•… agrees very well with what we noted 〈◊〉〈◊〉 fore out of the Roman Lawyers.
BUt Virgil's Licebit, it will be law∣ful, Let us consider what importance it hath. For, sometime that is said to be lawful which is right and pious intirely, though perhaps another thing may be done more laudably; as in that saying of S. Paul the Apostle, All things are law∣ful * 1.1613 for me, but all things are not expedi∣ent (All things: that is, all of that kind, of which he had begun to speak, and would speak more.) So, it is lawful † 1.1614 to contract matrimony, but more laudable is single Chastity proceeding from a pious design, as S. Augustin discourses to Pol∣•…•…ntius out of the same Apostle. It is al∣so lawful to marry again; but it is more •…•…awdable to be content with one mar∣riage, as Clemens Alexandrinus † 1.1615 right∣ly explains this question. A Christian husband lawfully may leave his Pagan
wife, as S. Augustin * 1.1616 thought: (with what circumstances this is true, is t•…•… proper to determine here;) but he may also keep her lawfully. Ulpian * 1.1617, of 〈◊〉〈◊〉 Seller, to whom 'tis lawful, after appoin∣ted day to pour forth the wine: If 〈◊〉〈◊〉, saith he, when he may pour it forth, 〈◊〉〈◊〉 doth it not•…•…, he is the more to be prac•…•…. But sometime a thing is called lawful, not which may be done without viola∣ting the rules of piety and duty, but which among men is not subject unto punish∣ment † 1.1618. So, among many people, it is lawfull to commit fornication: among the Lacede∣monians and Egyptians it was also lawf•…•…l to steal•…•… In Quintilian we read * 1.1619: There are some things not laudable by nature, but granted by Law, as in the XII. Tables, The Creditors might divide the De•…•… body among them. But this signification of the word, lawfull, is less proper (〈◊〉〈◊〉 Cicero observeth well in the fist of his T•…•…s∣culans, speaking of Cinna: To me, ent•…•… c•…•…ntrary, he seemeth miserable, not 〈◊〉〈◊〉 in that he did such things, but in that 〈◊〉〈◊〉 so behaved himself that it might be law∣ful for him to do them: though indee•…•… is lawful for none to do amiss, but wea•…•… in our language, calling that lawful, which is permitted to any one:) neve•…•…∣theless it is received, as when the sa•…•… Cicero for Rabirius Posthumus thus 〈◊〉〈◊〉 speaks the Judges; Ye ought to consider what becomes you, not how much is law∣ful
for you: for if ye seek only what is law∣ful; you may take away out of the City whom you please. So, all things are said to be lawful for Kings, because they are * 1.1620 exempt from human punishments, as we have said elswherere. But Claudian informing a King or Emperour rightly saith:
— * 1.1621 Have in your thought, Not what you may effect, but what you ought.And Musonius * 1.1622 reproveth Kings, who •…•…se to say, This is lawful for me; not, This becomes me. And in the same sense we often see opp•…•…ed, What is lawful, and What ought to be done, as by Seneca the Father * 1.1623 in his controversies more than once † 1.1624.
IN this sense then, it is lawful for an Enemy to hurt his Enemy, both in his person, and in his Goods: that is, not only for him who upon a just cause ven∣geth war; and who hurteth within th•…•… measure, which we have said to be natu∣rally granted, in the beginning of its book; but lawful on both sides and wi•…•…∣out distinction: So that, for that cause, he can neither be punisht, being per•…•…hance deprehended in another territory, as 〈◊〉〈◊〉 homicide, or theef; not can War be made against him by another, upon that ac∣count. Thus we read in Sallust: To 〈◊〉〈◊〉 * 1.1625 all things in victory were lawful by the Law of War. The cause, why it pleased the Nations to have it so, was this; 〈◊〉〈◊〉 had been dangerous for other Nations 〈◊〉〈◊〉 take upon them to pronounce and deter∣mine about the Right of War between two Nations: for, by that means, they would be engaged in the War of others; 〈◊〉〈◊〉 the Massilians said in the cause of 〈◊〉〈◊〉 and Pompey, That it was above th•…•… Judgment, and above their power, to •…•…∣cern whether side had the juster ca•…•…
Moreover, even in a just War, it can •…•…ardly be known by external marks, what is the just measure of self-defense, of re∣covering ones own, or of exacting pu∣nishments; so that, it is much better, to •…•…eave these things to be examined by the Conscience of those that War, than to re∣duce them under the judgment of others † 1.1626. Beside •…•…this this effect of licence, that is, of •…•…mpunity, there is another also, to wit, of dominion, concerning which we shall speak hereafter. As to that licence of hur∣ting, which we have now begun to han∣dle, it extendeth first to Persons: of which •…•…icence many Testimonies are extant in good Authors. It is a Greek proverb out of * 1.1627 a Tragedy of Euripedes, That the blood of an enemy leaves no stain. Therefore, by the old custom of the Greeks, it was not lawfull to bathe, to drink, to sacrifice much less, in their company, who had slain a man out of the time of war; but in theirs that had done so in war, it was lawfull. And commonly, to kill, is calld the right of War. Marcellus in Livy; Whatsoever ex∣ecution * 1.1628 I have done upon the enemy, the right of War defends. In the same histo∣rian * 1.1629 Alcon saith to the Saguntines, I think it better for you to suffer these things, than your bodies to be slain, your wives and children to be dragd and ravisht before your eyes, by the right of War. The same elswhere, when he had related how the Ast•…•…penses were put to the sword, * 1.1630
addeth, It was done jure belli, by the right of War. Cicero for Deiotarus: Why should he be an enemy to you, by whom be might have been killed by the Law of W•…•… by whom he remembred he was made King, and his sons. And for M. Marcel∣lus: When, by the condition and right of Victory we were all dead men, we were preserved by the judgment of your Clemen∣cy. Caesar to the Haeduans signifies, They * 1.1631 were saved by his favour, when the Law of War gave him leave to destroy them. Josephus, in the war of the Jews; It is honourable to fall in War; but, by the Law of War, and by the hand of the Conque∣rour † 1.1632. Now, whē these writers speak of the Law or right of War, it appears by o∣ther places, they must be understood, not of that which frees the act from all fault, but of the impunity before mentioned. Tacitus said, Causes and merits are considerd in peace; in War, the innocent and the guilty fall together. The same, in ano∣ther place: Neither did the right of men suffer them to honour that slaughter; nor the course of War, to revenge it. Nor is the right of War to be taken otherwise when Livy tells, how the Greeks spared Aeneas and Antenor, be∣cause they had always perswaded unto
Peace † 1.1633. Cyprian * 1.1634; Monslaughter, when private men commit it, is a crimo: when it is publickly done, 'tis call'd a vertue. Not respect of innocence, but greatness of the cruelty gives impunity to wicked Acti∣•…•…. So Lactantius saith, The Romans did Legitimate their injuries by their power. And Lucan's Jus{que} datum sceleri, is of the same sense, † 1.1635 Law was given to wickedness.
THis Law of Licence is of large extent: for first, it comprehends not only them that actually bear arms, or are subjects to him that maketh war, but also all that are within the enemies Country: which is manifest by the very form in Livy, Let * 1.1636 him be our Enemy, and they that are within his guards. For, danger may be feard from them too, which, in a conti∣nued and universal war, sufficeth to make way for that right of which we speak: otherwise than in pignorations, which, as we have said, after the example of bur∣thens imposed, were introduced for the discharge of publick debts: wherefore it is no wonder, if, as Baldus notes, much * 1.1637 more licence be in war than in the right of pignoration. And this which I have said,
hath no doubt indeed, as to strangers, who after the beginning and notice of the War, come into the enemies quarters. But, they that went thither before, seem by the Law of Nations to be accounted for enemies after some small time * 1.1638, wherein they might have departed. For so the Corcyraeans about to besiege Epidamnum, first allowed strangers liberty to go away, denouncing otherwise they should be ta∣ken for enemies.
BUt, they that are truly subjects of the enemies, to wit, upon a permanent cause, may be offended every where, by this right of Nations, if we respect their own persons. For, when War is procla∣med against any one, it is withall pro∣clamed against all his men, as we sheud above in the form of indiction: and so in * 1.1639 the decree; Was it their will and pleasure, war should be denounced against King Philip and the Macedonians which are under his Government * 1.1640. Now, he that is an enemy, may every where accor∣ding
to the Law or Nations be assal∣ted † 1.1641. Enemies therefore may be slain on their own ground, on the enemies ground, on that that belongs to none, on the Sea. But, that it is not lawful to kill or violate them in a peaceable territorie, proceeds not from their own person, but from his right who hath Empire there * 1.1642. For, civil societies might constitute, that nothing should violently be done against men in such a Country, unless according to process of Law † 1.1643. And, where the Law is open, there are weighed the me∣rits of persons, and that promiscuous right of hurting ceaseth, which we have said was introduc'd a∣mong enemies. Li∣vy relates, that seaven Ships of the Carthaginians were in a Haven under the Syphax's * 1.1644 dominion, who had peace at that time both with the Carthaginians and Romans; that Scipio arrived there with two ships, and before he entred the Haven they might easily have been opprest by the Cartha∣ginians, but being born in with a strong winde before the Carthaginians could weigh anchor, they durst not fight with them in the Kings Haven. But to retutn, how far that licence reacheth, is hence understood, that the slaughter of Infants too, and women goes unpunished, and is comprehended in this right of war. I will
not allege here, that the Hebrews slew * 1.1645 the women and children of Heshbon, and that the same is commanded to be done upon the Canaanites, and upon them whose cause was connexed † 1.1646 with the Ca∣naanites; These are the works of God, whose right over men is greater than that of men over beasts, as we have said other where. That comes neerer to sh•…•…w the common custom of Nations, that in the Psalm he is called blessed who shall dash the Infants of Babylon against the stones * 1.1647. The Thracians of old, as Thucy∣dides relates, having taken Micalessus, put the women also and children to the sword. Arrian tells the same of the Ma∣c•…•…donians, when they had taken Thebes The Romans † 1.1648 did the like at I•…•…rgis a town of Spain, as Appian saith. Ger∣manicus Caefar is said by Tacitus to have laid wast with sword and fire the Vi loges of the Marsi, a people in Ger∣many, and it is added, Neither 〈◊〉〈◊〉, 〈◊〉〈◊〉 age mov'd compassion. Titus proposed al∣so the women and children•…•… of the Jews for a spectacle, to be torn by wild-beasts. And yet these two are supposed to have been of no cruel disposition. So customa∣ry was that cruelty becom. The less mar∣vel 'tis to hear of old men slain, as of
Priam by Pyrrhus. Nor were Captives † 1.1649 exempted from this licence. Pyrrhus in Seneca according to the custom then re∣ceiv'd: No Law spares a captive, or hin∣ders his punishment † 1.1650. So the Corcyraeans slew the captives out of Epidamnum * 1.1651; and five thousand captives were slain by Annibal * 1.1652. A Centurion of Caesar's thus addresses himself to Scipio in Hirtius of the African war, I give you thanks that you promise me life, being your Ca∣ptive by the Law of War. Nor at any time is excluded the power of killing such as are taken in War, as to the Law of na∣tions; though by the Lawes of Cities it is restrained, in some places more, in some less. Moreover, there are frequent exam∣ples of suppliants also slain, as by Achil∣les in Homer, in Virgil of Mago and Tur∣nus: which we see are so related, that they are withall defended by that right of war which we have said. For † 1.1653, S. Augustin also praising the Gotths, who had spared suppli∣ants and such as fled to sanctuaries, saith, What had been lawful to be done by the Law of War, they judged unlawful for them to do. Nor are they always receiv'd thar yield themselves; as, in the battel at Gra∣nicum, the Greeks that serv'd the Persian; the Uspenses in Tacitus, as yet free, beg∣ging Mercy: but the Victors would not hear, saith he, and so they fell by the Law of War. Note here again, the Law of War. So also, you may read, they that yielded
and were received without any condition, were slain † 1.1654; as the Princes of Pometia by the Romans, the Samnites by Sulla, the Numidians by Caesar, and Vercinge∣torix: yea this was almost the perpetuall custom of the Romans upon the Com∣manders of the enemies, whether taken or yielded, to kill them on the day of tri∣umph * 1.1655, as Cicero * 1.1656, Livy * 1.1657, Tacitus * 1.1658 and many others teach us. In the same Taci∣tus, Galba commanded them to be deci∣mated, every tenth man slain, to whom he had given quarter. And Caecina ha∣ving accepted Aventic yielding to him, put to death Julius Alpinus one of the Princes, as the raiser of the War, the rest he reserved for the mercy, or the cruelty of Vitellius.
HIstorians * 1.1659 are wont sometimes to refer the cause of killing enemies, captives especially or suppliants, either to talion, or to pertinacy in resisting: but these causes, as we have elswhere distin∣guished, are rather suasory than justifick. For a just talion † 1.1660 and properly so called
is to be exercised upon the same person that offendeth, as may be understood by what we have said above, of communi∣cation of Punishment. But on the con∣trary, from war, for the most part, that which is called talion, redounds to the evil of those, who had no hand in that which is accused. And as to a pertina∣cious affection to one side, no man judges that worthy of punishment, as the Nea∣politans in Procopius * 1.1661 answer Belisarius: which is then most true, when that side is either assigned by nature, or chosen upon good ground. Yea, so far is this from be∣ing a crime, that it is a crime to quit a Gar∣rilon, especially by the old military Ro∣man * 1.1662 Law, which here admitted not light∣ly any excuse of fear or danger. To depart * 1.1663 from a Garrison, saith Livy, is capital. Wherefore every one as he pleaseth, makes use of that highest rigour for his own In∣terest; and that rigour is defended among men by that right of Nations, of which we now speak. The same right hath been * 1.1664 also used against Hostages, nor against them only who had obliged themselves, as by agreement, but against them too, that were deliverd by others. Two hun∣dred and fifty were once slain by the Thessalians, by the Romans three hun∣dred of the Volsci. We must note, that Children also were wont to be given for * 1.1665 Hostages, as by the Parthians; which we read was also done by Simon one of the
Maccabees; and women, as by the Ro∣mans in the time of Porsena, and by the * 1.1666 Germans, as Tacitus relateth.
NOw, as the Law of Nations permit∣teth many things, by that way of permission afore explained, which are pro∣hibited by the Law of Nature; so it pro∣hibiteth some things, which by the Law of Nature are permitted. For to kill 〈◊〉〈◊〉 man, whom it is lawful to kill, whether with the sword or with poyson is no mat∣ter, if you respect the Law of Nature: I say, the Law of Nature: for indeed it is more generous to kill so, that he who is killed may have leave to defend himself: but this is not due to any one, who hath deserv'd to dy. But the Law of Nations, if not of all, yet of the best, is of old, that an enemy may not be kill'd with poyson; which consent hath its rise from a regard of common advantage; that dan∣gers of war, which began to be many, might not be too much hightned. And it is credible, that this proceeded from Kings, whose life above others is defended from arms, but is less secured from poyson th•…•… the life of other men, unless it be defended by some reverence of Law and fear of infamy† 1.1667.
Livy calls it Clandestin wicked∣ness, speaking of Perseus: Claudian, a heinous act, speaking of the treachery a∣gainst Pyrrhus rejected by Frabricius; and Cicero, wickedness, touching the same history. For common examples sake no such thing is to be admitted, say the Ro∣man Consuls in their letter to Pyrrhus * 1.1668 with arms not with poyson are wars to be waged, is in Valerius Maximus: and, as Tacitus relates, when a prince of the Catti promised the death of Arminius by poyson, Tiberius rejected him, equalling himself in that glory with the old Gene∣rals. Wherefore, they that hold it law∣ful to kill an enemy by poyson * 1.1669, as Bal∣dus out of Vegetius, respect the meer Law of Nature, but oversee that which derives it self from the will of Nations. It is a little distant from such poysoning and comes neerer to force, to infect darts with poyson, and double the causes of death; which Ovid hath deliverd of the Getes † 1.1670, Lucan of the Parthians, Silius of some Africans, and namely of the Ethiopians Claudian. But this too is against the Law of Nations * 1.1671, not the universal, but of the Europaeans, and of such as conform to the Civility of better Europe. This is well observ'd by Salisberiensis, in these words: Although I see it used sometimes by Infi∣dels, yet I do not find the licence of poyson by any law ever indulged to us. Therefore Silius's phrase is, To infame steel by poy∣son:
for, to poyson fountains also (and this too is not kept secret, or not long) Florus saith, is not only contra morem majorum, against the manner of the An∣tients, * 1.1672 but against the right of the Gods, that is, against the Laws of Nations, which were wont to be ascribed to the Gods as Authors. Nor ought this to seem strange, if to lessen dangers there be some such tacit agreements of Warriours, when of old the Chalcidians and Eretrians, du∣ring * 1.1673 the War, consented together to make no use of darts. But, the same is not to be determined of corrupting waters with∣out poyson † 1.1674, so that they may not be potable, which Solon and the Amphi∣ctyones are read to have thought just a∣gainst Barbarians, and Oppian relates as usual in his time. For that is estee∣med all one, as if the stream be aver∣ted, or the Veins of the Spring inter∣cepted * 1.1675, which both by Nature and Consent is lawfull.
WHether it be lawful by the Law of Nations, to kill an enemy, a * 1.1676, Murtherer being sent against him, is wont to be enquired. To be sure we must make a difference between Murtherers, who violate their faith, either express or tacit, as Subjects toward a King, vassalls to∣ward their Senior, Soldiers toward him whom they serve, men received as sup∣pliants, or strangers, or fugitives toward their Receivers; and between those that are not bound with any faith; as Pipin * 1.1677 father of Charles the Great attended with one Soldier, passing the Rhene, is related to have slain his Enemy in his Chamber; which Polybius saith was in like manner attempted against Prolemy King of Egypt by Theodotus an Etolian, and he calls it a manly boldness. Such also was that en∣terprize * 1.1678 of Q. Mutius Scaevola * 1.1679 com∣mended by Historians, which himself thus defends: Being an enemy, I purpo∣sed to kill an Enemy. Porsena himself, in this act, acknowledges nothing but va∣lour. Valerius Maximus calls it a pious * 1.1680 and valiant design, and Cicero praiseth it in his Oration for P. Sextius. It is indeed lawful to kill ones Enemy every where, not only by the Law of Nature but of Na∣tions too, as we have said above: nor is
it material, what the number is of those * 1.1681 that do, or suffer. Six hundred Laconians with Leonides entring the Enemies camp, go on straight to the Kings tent. Fewer might lawfully have done so † 1.1682. Few were they, that killed the Consul Marcellus being secretly circumvented * 1.1683; and that were very neer stabbing Petilius Cerialis in his bed * 1.1684 Ambrose commends Elea∣zar † 1.1685 for setting upon an Elephant big∣ger than the rest, supposing the King sate thereon. Nor onely they that do these things, but they that appoint others to do them, are accounted without fault by the Law of Nations. Scavola's boldness * was authoriz'd by those old Roman Sena∣tors, so religious in their Wars. Nor ought any one to be mov'd with this, that such being taken are wont to be extremely pu∣nisht: for that proceeds not from their having offended against the Law of Na∣tions, but from this, that by the same Law every thing is lawful against an enemy: and every one, as it is for his own profit, determineth, either more rigourously, or more gently. For so also Spies, who doubtless by the Law of Nations may be sent, such as Moses sent, such as Jo•…•…a himself was, being deprehended, were used very ill (The custom is to put spies to death, as Appian saith:) justly sometimes, by these that manifestly have a just caus•…•… of Warring; by others, by that licence which the Law of war granteth. As 〈◊〉〈◊〉
those that have refused such offerd service, their refusal is to be referd to their noble∣ness of mind, and their confidence in their known strength, not to any opinion of just or unjust. But, concerning those Murtherers, whose act hath perfidiousness in it, we must make another •…•…udgment. Nor do they themselves only act against the Law of Nations, but they also that use their service. For, though in other things, who use the service of wicked men against an Enemy, are judged to sin be∣fore God, not before Men (i. e. against the Law of Nations:) because in that point, customes have overpowred Laws, * 1.1686 and to deceive after the manner of the times (as Pliny speaks) is Prudence: Nevertheless, that custome hath stayed beneath the right of killing. For here, who useth anothers treachery is believ'd to have violated the Law, not of Nature only, but of Nations. This is signified by those words of Alexander to Darius: Ye undertake i•…•…pious wars; and though * 1.1687 ye have arms, ye bid mony for the heads of your enemies. And a little after, Ye have not kept the Laws of War with me. Elswhere, He is to be pursued by me to his utter ruine, not as a just Enemy but as a Murtherer and Poysoner. That of Vale∣rius Maximus is pertinent * 1.1688: The death
of Viriatus hath a double charge of perfi∣diousness; one against his friends, because he was stain by their hands; another against: Q. Servillus Coepio the Consul, be∣causo the was the Author of this wicked∣ness, having promised impunity: and so deso•…•…ed not the victory, but bought it † 1.1689 The cause why it was determined so in this case, and not in others, is the same we set down before, concerning poyson; viz. lest dangers should be too much heightend, especially theirs who are most high. Eu∣menes said * 1.1690, he did not believe any Com∣mander would be willing to overcome so, as to give a very bad precedent against himself. And in the same Historian, when Bessus had laid hands upon Darius, it is said a matter of example and the common cause of all Kings † 1.1691. This therefore is not lawful in a solemn war, or among them who have right to proclame a solemn War: but without that, it is accounted lawful by the same Law of Nations. So Tacitus saith, the treachery against Gan∣nascus a revolter was not degenerous. Curtius saith, the perfidiousness of Spita∣menes might be the less odious, because nothing seemed impious against Bessus the Murtherer of his King. So also, to be per∣fidious to Theeves and Pirats, though not
without fault, is unpunisht among the Nations, because such rogues are ha∣ted.
RAvishing of Women you shall often read in war, both permitted and not permitted. They that have permitted it considered only the injury offerd to ano∣thers body; to which, they judged it meet for the Law of arms, whatever is the enemies, should be subject. Better minded were others, who considered here not the injury alone, but the very act of inordinate wild lust, and that it perteins neither to security nor to punishment; and there∣fore, it ought not to be unpunisht, no more in war than in peace. This latter is the Law, not of all Nations, but of the best. So, Marcellus * 1.1692 before he took Sy∣racuse, is related to have taken care of preserving chastity even in the enemy. Scipio saith in Livy, If concern'd him and the people of Rome, that nothing which is any where sacred should be violated by them: any where; i. e. among the more vertuous and Civil Nations. Diodorus Si∣culus, of the Soldiers of Agathocles: They did not abstain, no not from dishonou∣ring and forcing Women † 1.1693. Aelian, when he had told how the Sicyonian conque∣rors had prostituted the Pellenaean women
and virgins, exclames, Cruel acts, Oye Gods of Greece, and so far as I can re∣member, dishonest even in the sight of Bar∣barians! And it is fit to be observed a∣mong Christians * 1.1694, not only as a part of military disciplin, but also as a part of the Law of Nations, that whosoever hath violently injur'd Chastity, though in War, should every where be obnoxious unto punishment. For, neither by the Hebrew Law should any such offender have escaped, as may be understood by that part of it * 1.1695, constituted about marry∣ing a Captive, and not selling her after∣ward. Upon which place Bacchai the He∣brew Master: It was Gods will, that the Camp of the Israelites should be holy, not polluted with whoredomes and other abomi∣nations, like the campes of the Gentiles. Arrian, when he had related, how Ale∣xander, taken with the love of Roxane, would not abuse her as a captive through lust, but vouchsafed her the honour of Mar∣riage, addes a commendation of the deed. Plutarch, of the same deed; He did not lustfully abuse her, but, as became a Philosopher, took her for his wife. And one Torquatus, because he had offerd vio∣lence to a Virgin of the enemies, was car∣ried away into Corsica * 1.1696 by decree of the Romans, as the same Plutarch has it.
CIcero said, It is not against nature * 1.1698 to spoil him, whom it is lawful to kill. No wonder then, that the Law of Na∣tions permitted the goods of enemies to be spoiled, when it had permitted them∣selves to be slain. Polybius in the fift of his Histories saith, it is comprehended in the Law of war, that the fortifications, Havens, Towns, Men, Ships, Fruits of the Enemies, and all things like, may ei∣ther be carryed away or destroyed. And in Livy we read, There are certain Laws of War, which are right to be done or sufferd; namely, for fields to be burnt, houses ruin'd, spoiles of men and cattell to be brought a∣way. You may find in Historians, almost in every page, whole Cities overthrown, or walls levelled with the ground, popu∣lations and burnings of the Countrey. And we must note, such things are law∣ful also upon those that yield. The Towns∣men, saith Tacitus, opening their gates * 1.1699 submitted themselves, and all they had, to the Romans: Themselves were spared, the Town was fired.
NOr doth the meer Law of Nation•…•… (the consideration of other duties laid aside, of which we shall speak be∣low) except sacred things, i. e. Such as are dedicated to God, or to the Gods. When places are taken by the enemies, all cease to be sacred * 1.1700, saith Pomponius the Lawyer † 1.1701, The sacred things of the Syra∣cusians, Victory made profane, saith Cice∣ro * 1.1702. The reason whereof is this, because the things which are called sacred, a•…•…e not indeed exempted from human uses, but are publick * 1.1703; and they are named sacred from the end to which they are appointed. A sign of this which I say, is, that when any people yield themselves to another people or King, then also they yield those things which are call'd divine, as appears by the formula, which we have cited afore * 1.1704 out of Livy: and there∣fore Ulpian saith, publick Right con∣sisteth also in sacred things † 1.1705. Pausa∣nias † 1.1706
saith, It was a custom common to Greeks and Barbarians, that sacred things should be in their power, that had taken Cities. And the same Author notes, that the consecrated Gifts were wont to be taken by the Conquerours: and Cicero calls it the Law of War. So, Livy saith, the ornaments of the Temples which Marcellus brought from Syracuse to Rome were gotten by the Law of War. And Ca∣to in his Oration in Salust, relating what things are wont to happen to the conque∣red, puts among them the spoiling of Temples * 1.1707. Notwithstanding, this is true, if any divine power be believ'd to be in a∣ny Image, to violate that, is high impie∣ty in them, that agree in such perswasion; and in this sense of impiety, or of the Law of Nations broken, are they sometimes accused, who have committed such things; viz. on supposition of such perswasion. 'Tis otherwise, if the enemies are of ano∣ther opinion; as, the Jews were not only permitted, but commanded to abolish the Idols of the Nations: for, that they are forbidden to take them to themselves, is * 1.1708 upon this ground, that the Hebrews might the more detest the superstitions of the Heathens, being admonisht of their impu∣rity by the interdict of a touch; not, as if
the sacred things of Aliens were spared, as * 1.1709 Josephus expounds it, in favour of the Romans, no doubt; as also, in the expo∣sition of another precept, of not naming the Gods of the Nations; which he so explains, as if they were forbidden to speak against them; when in truth the Law suf∣ferd them not to mention them for ho∣nours sake, or without abomination. For, the Hebrews knew, by the in∣fallible Word of God, that in those Images neither dwelt the Spirit of God, nor good Angels, nor the vertue of Stars, as the deluded Nations thought, but wicked De∣vils, enemies of Mankind; so that Taci∣tus * 1.1710 rightly said, in describing the Jewish Institutions, All things are there profane, * 1.1711 which with us are sacred. No wonder then, if we read more than once, that Temples of profane worship were burnt by the Maccabees. And Xerxes too, when he destroyed the images of the Grecians, * 1.1712 did nothing against the Law of Nations (though the Greek writers much exagge∣rate the fact to bring it into hatred.) For, the Persians † 1.1713 believed not any Deities to be in Images, but that the Sun was God, and the Fire some portion of him. By the Hebrew Law, as the forecited Tacitus rightly, All were kept from en∣tring into the Temple, beside the Priests. But Pompey, as he saith, entred the Temple by the right of victory; or, as Au∣gustin, * 1.1714 not with the devotion of a sup∣pliant,
but by the right of a Conquerour. Well did he, that he spared the Temple, and the Things of the Temple, though (as * 1.1715 Cicero plainly) for shame and fear of ob∣uectators, not for Religion; he did ill, that he entred, as in contempt of the true God, wherewith also the Prophets do up∣braid the Chaldaeans; for which cause too, * 1.1716 some think it came to pass by the singular providence of God, that the same Pom∣pey was slain even in the view of Judaa, at Cassium a Promontory of Egypt. How∣beit, if you look upon the Romans opi∣nion, Nothing was therein done contra∣ry to the Law of Nations. So Josephus relates, how the same Temple was given up to destruction by Titus, and addeth, It was done by the Law of War * 1.1717 What we have said of sacred things ought to be understood also of religious. For these too are not in the possession of the dead, but of the living, whether a people, or fami∣ly. Wherefore, as sacred places taken by the enemies, so religious likewise cease to be such, as Pomponius hath written in the place afore, and Paulus the Lawyer * 1.1718; The Sepulchers of the enemies are not re∣ligious to us, and therefore the stones taken thence we may convert into any use. Which yet is so to be understood, that the bodies of the dead be not treated ill, because that is against the right of buriall, which was introduced by the Law of Nations, as we have demonstrated above * 1.1719.
BEside the impunity of some acts a∣gainst men, of which we have spo∣ken, there is also another effect in solemn War, properly arising out of the Law of Nations. And truly by the Law of Na∣ture, in a just War, those things are ac∣quir'd to us, which either are equal to that, which being due unto us we can∣not otherwise obtain; or also, which do infer damage to the guilty part, within fit measure of punishment, as hath been said above. By this right Abraham, of the spoyles he had taken from the five Kings, gave the Tithe to God * 1.1721, as the Divine Writer to the Hebrews explains the Hi∣story extant in Genesis. After the same manner, the Greeks too, the Carthagini∣ans, and Romans, consecrated the Tenth of the spoyle to their Gods, as to Apollo, Hercules, Jupiter, Feretrius. And Jacob bequeathing a Legacy to Joseph above * 1.1722 his brethren, saith, Moreover I give to thee one portion above thy brethren, which I took out of the hand of the Amerite with my sword, and with my bow. In which place * 1.1723, I took, seemeth by a Prophetick way of speaking, to mean, I will certainly take; and here is attributed to Jacob that
which his posterity called by his name should do afterward; as if the person of the progenitor and his children were the same. For, this is righter, than with the Hebrews to draw these words to that spoyle of the Sichemites, which was made before by the sons of Ja∣cob: which being joyned with perfidi∣ousness * 1.1724 was condemned by the piety of Jacob, as we may see in the Story. Now, that the right of taking spoyle was ap∣proved of God, within those natural bounds which I have mentiond, is mani∣fest also in other places. God in his Law * 1.1725 speaking of a City conquerd after the re∣fusal of peace, saith thus: All the spoil thereof shalt thou take unto thy self, and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee. The Reubenites, Gadites, and part of the Manassites are said to have conquerd the Ituraeans and their neighbours, and to have taken from them much spoil, this reason being added; because they called * 1.1726 upon God in the war and God had heard them graciously: As also that pious King Asa is said, after prayer to God, to have gotten both victory and spoil of the E∣thiopians, that provoked him by unjust war: which is the more to be observed, because those arms were taken, not by special mandate, but by common right. And Joshua encouraging the said Reube∣nites, Gadites, and Manassites, saith, Be * 1.1727
ye partakers of the spoil of the enemies to∣gether with your brethren. And David, when he sent of the spoils gotten from the Amalikites to the Elders of the Hebrews, * 1.1728 addeth in commendation of his present, Behold, this is a Gift for you of the spoil of the Lord's enemies. For verily, as Se∣neca saith, it is the glory of military men * 1.1729 to enrich one with the enemie's spoils. And there are extant divine Laws about dividing the spoil, Numb. 31. 27. And * 1.1730 Philo saith, it is among the Threats of the Law, that the field should be reaped by their enemies, whence would follow their own famine, and their enemies plenty. But, by the Law of Nations, not only he that wageth war on a just cause, but eve∣ry one, in solemn War, and without end and measure, is made Master of all he takes from the enemy, in that sense, that by all Nations both himself, and they that have Title from him, are to be main∣tained in the possession of such things; Which, as to external effects, we may call Dominion. Cyrus in Xenophon: It * 1.1731 is an everlasting Law among men, that, the enemies City being taken, their goods and money should be the Conquerors. Pla∣to said, The Conquerors get all that the Conquer'd had; who in another place, a∣mong the kinds of acquisition, that are as 'twere natural, puts the Polemical for one, having therein the assent of the fore∣cited Xenophon; in whom Socrates by in∣terrogations * 1.1732
brings Euthydemus to a con∣session, that 'tis not always unjust to spoil, namely, an enemy. Aristotle also saith, * 1.1733 The Law is as a common agreement, wher∣by the things taken in War become the Takers † 1.1734. Philip in his Epistle to the Athemans: We all do hold Towns left us by our Ancestors, or gotten by the Law of War. Aeschines: If in War made against us you have taken the City, by the Law of War you possess it rightly. Marcellus in Livy saith, what he took from the Syra∣cusians, he took away by the same Law. Things taken from the enemies presently become theirs that take them, by the Law of Nations, saith Caius the Lawyer. Theo∣philus in the Greek Institutions calls this acquisition Natural: for, not any cause but the naked fact is considered, and thence a right springeth: as also Nerva the son (the Lawyer Paulus reporting it) said, the dominion of things began from natural possession, and some print thereof remains in the things taken in the Land, the Sea, & the Air; and in things taken in War; all which instantly become theirs, who first laid hold on the possession. From the enemy are judged to be taken away, those things also, which are taken away from the subjects of the enemy. So Der∣cyllides argueth in Xenophon, when Phar∣nabazus was the enemy of the Lacede∣monians, * 1.1735 and Mania subject to Pharna∣bazus, the Goods of Mania were in such
a case, that they might be rightly seized on by the Law of War.
MOreover, in this question of War it hath pleased the Nations, that he may be understood to have taken a thing, who so deteins it, that the other hath lost all probable hope of recovery, that the * 1.1736 thing hath escaped pursuance, as Pompo∣nius speaketh in a like question. And this so proceeds in movable goods, that they are said Taken, when they are brought within the bounds, that is, the guards of the enemy. For in the same manner a thing is lost, as it returns by Postliminium. It returns, when it comes within the bounds of Empire, i. e. within the guards. And Paulus saith plainly of a man, that he is lost, when he is gone beyond our bounds: and Pomponius interprets him Taken in War, whom the enemies have taken out of ours, and brought within their own guards; for before he is brought into their guards he remains a Citizen. Now, in this Law of Nations, there was the same reason of a man and of a thing. Whence it is easy to be conceived, that elswhere things taken are said presently to become the Takers, ought to be un∣derstood with some condition, to wit, of
continuing the possession so far; whence * 1.1737 it seemeth to follow, that on the Sea, ships and other things may then be thought taken, when they are carried away into the Haven, or the place where the Navy lies: For then, the recovery seems to be∣gin to be past hope. But, by the newer Law of Nations among the people of Eu∣rope we see 'tis introduc'd, that such things are supposed taken, when they have been in the enemies power for the space of four and twenty hours * 1.1738. As for Lands or Fields, they are not conceiv'd presently to be taken, so soon as they are sate upon. For, though it be true, that that part of the field, which an Army hath entred with great force, is for the time possessed by it, as Celsus hath noted; Yet, as to that effect which we speak of, every possession is not sufficient, but a firm possession is requir'd. Wherefore the Ro∣mans were so far from judging the field which Annibal encamped in without the Gate, to be lost, that at the very same time it was valued at the same price it was sold before. That field then will be sup∣posed taken, which is so included with la∣sting fortifications, that without over∣coming them the other party can have no access. Whence it is a very probable deri∣vation * 1.1739 of the word Territory, from ter∣rifying the enemies. So Xenophon saith, the possession of land in the time of War is reteined by Forts or muniments.
ANd this is manifest, that a thing may be made ours by the Law of war, 'tis requir'd, that it have been the enemies; For, things that are with the enemies, that is, in their Towns, or with∣in their guards, but whose Owners are neither the enemies subjects, nor of an hostile mind, those things cannot be ac∣quir'd by war, as appears, among other arguments, by that saying of Aeschines † 1.1740 that Amphipolis, a City of the Athenians, by the war of Philip against the Amphi∣politans could not become his. For, both Reason faileth, and this Right of chan∣ging Dominion by force is so odious, that it is not fit to be produced. Wherefore, what is wont to be said, * 1.1741 that the Goods are the enemies, which are found in the Enemies ships † 1.1742, ought not to be so un∣derstood, as if it were a certain Rule of the Law of Nations, but that it may shew
a presumtion, which yet by strong proofs to the contrary may be overthrown. So, in our Holland, long since, Anno 1338. in the heat of War, I have found it was judged in full Senate, and upon that judgment passed into a Law.
ANd this is without Controversy if we respect the Law of Nations, Things taken by us from the enemies cannot be challenged by them that had possessed them before our enemies, and had lost them by war: because the Law of Nations made the enemies first masters by external dominion, and then us. By which right, among other arguments, Jephtha defends himself against the Am∣monites, because that Land which the * 1.1743 Ammonites challenged, by the Law of war had passed from the Ammonites to the Hebrews; as also another part, from the Moabites to the Amorites, and from the Amorites to the same Hebrews. So David accounteth that for his own, and divides it, which he had taken from the Amalekites, the Amalekites formerly from the Philistins † 1.1744. Titus Largius in Dionysius Halicarnassensis, when the Volscians requested to have their old posses∣sions
again, gave his opinion, in the Ro∣man Senate, thus: We Romans believe * 1.1745 those possessions to be most honourable and just, which we have taken by the Law of War, nor can we be induced, by a foolish facility to part with the monuments of our valour, and restore them to those that were not able to keep them. Nor do we judge such possessions to be communicated only to our Countrymen now living, but to be left to our posterity. So far are we from relinquishing what we have got, and dea∣ling with our selves as if we were our own enemies. And in the answer of the Romans given to the Aurunci: We Romans are of * 1.1746 this Judgment, what one hath gotten of his enemies by valour, he may transmit to his posterity by right. Livy, after his nar∣ration how the land neer Luca was di∣vided by the Romans, notes, That Land * 1.1747 was taken from the Ligures, and had been formerly the Ethruscians. By this right was Syria reteined by the Romans, as Appian notes, and not restored to Antio∣chus Pius, from whom Tigranes the Ro∣mans enemy had forced it: and Justin out of Trogus makes Pompey answer the same Antiochus in this manner: As he * 1.1748 did not deprive him of his Kingdom when he had it, so would he not restore him to the Kingdom he had lost to Tigranes, and knew not how to keep. And likewise those parts of Gallia which the Cimbrians had taken from the Galls, the Romans took for their own.
IN the Primitive state of Nature, no men * 1.1750 are servants: yet is it not repugnant to Natural Justice that by the fact of man, that is, by Covenant or transgression, ser∣vitude should come in. But, by that Law of Nations, of which we now speak, ser∣vitude is of larger extent, both as to per∣sons, and as to effects. For, if we consi∣der Persons, not only they that give up themselves or promise servitude are ac∣counted for servants, but all indeed that are taken in publick solemn War, after they are brought within the guards, as Pomponius saith. Nor is Transgression * 1.1751 necessary, but the lot of all is equal, even of them, who by their ill fortune * 1.1752, after war is on the suddain begun, are depre∣hended within the bounds of the ene∣mies. Nor are they servants only them∣selves, but also their posterity for ever: to wit they that are born of a mother being a servant after servitude † 1.1753. Now, the ef∣fects of this right are infinite, so that, as Seneca the Father said, there is nothing which is not lawful to a Master over his servant. No suffering, which may not freely be imposed on him; no work which may not every way be commanded or ex∣torted from him: so that even the cruelty
of Masters toward servile persons is unpu∣nished, unless so far as the Civil Law sets a measure and a penalty for cruelty, We may observe, saith Caius, that Masters, * 1.1754 among all Nations equally, have had pow∣er of life and death over their servants. Then he addeth, that limits were appoin∣ted * 1.1755 to this power by the Roman Law, to wit, on Roman ground. Moreover, all things which are taken with the persons are acquir'd to the Master. The servant himself, who is in the power of another, * 1.1756 saith Justinian, can have nothing as his own. Whence is refelled, or at least re∣strained, their opinion, who say incor∣poral things are not acquired by the Law of War. For, it is true, they are not pri∣marily and by themselves acquired, but by means of the person whose they were. Yet here are to be excepted those things which flow from a singular propriety or the person, and therefore are unalienable, as the right paternal. For these, if they can remain, remain in the person; if not, they are extinguished. Now, all these things were introduc'd by the Law of Na∣tions, for no other cause, but that the Takers tempted by so many commodities might willingly abstein from that extreme rigour, whereby they might kill those they * 1.1757 had taken, both at the instant, and after∣ward, as we have said afore. The appella∣rion of servants, saith Pomponius, is de∣rived hence, that Commanders are accu∣stomed
to sell Captives, and so preserve and not kill them. I said, that they might willingly abstein: for here is nothing like a Covenant whereby they may be Com∣peld to abstain, if you look upon this Law of Nations, but a manner of perswading from consideration of that which is more profitable. And for the same cause, this right is also transcribed to others, just as the dominion of things. The reason why this dominion was extended to the Chil∣dren, is, because otherwise, if the Takers should use their highest right, they would not be born. Whereto is Consequent, that the Children born before that cala∣mity, unless they be taken too, become not servants. And, the reason why it pleasd the Nations, that the Children should be of their Mothers condition, is, because servile copulations were neither regulated by Law nor by certain custo∣dy, so that no sufficient presumption could shew the Father. So is that of Ul∣pian to be understood, The Law of Na∣ture * 1.1758 is this, that he which is born without lawfull Matrimony, should follow the * 1.1759 Mother. That is, The Law of general custom drawn from some natural reason, as we have elswhere shewed that the word Natural Law is taken. Now, that these rights were not in vain introduced by the Nations, may be understood by example of Civil Wars; wherein, for̄ the most part, we see those that are taken
slain, because they could not be brought under servitude: which Plutarch also hath noted in the life of Otho, and Tacitus in the second of his Histories.
NOtwithstanding, we must know, this Law of Nations concerning Captives hath not been always receiv'd, nor among all Nations; though the Roman Lawyers speak universally, styling the more no∣table part by the name of the whole. So, * 1.1760 among the Hebrews, who were segregated by special Ordinances from the commu∣nity of other people, refuge was granted unto servants, namely those (as Interpre∣ters righly observe) who fell into that calamity by no fault of their own. And Christians † 1.1761 have generally agreed, that * 1.1762 such as are taken in War between them should not become servants, to be sold, to be forced to work, and suffer the like servile things. Very justly; be∣cause they had, or ought to have, learned better of the Commendator of all Chari∣ty, than not to be kept from the killing of miserable men, except by concession of a less cruelty. And that this hath passed heretofore from the Ancestors to their po∣sterity, among professors of the same Re∣ligion,
Gregoras † 1.1763 hath written; nor, was it proper to the Subjects of the Roman Empire, but common with the Thessalians, Illyrians, Triballians and Bulgarians. Thus hath the reverence of the Christian Law effected this at least, though it be but small, which Socrates of old, when he would have perswaded the Greeks to ob∣serve toward one another, could not ob∣tein * 1.1764. The same do the Mah•…•…metans al∣so observe among themselves in this point * 1.1765, which the Christians do. Yet, even among the Christians, hath remai∣ned a custom to keep the Captives, un∣til a ransom be paid, whose valuation is at the pleasure of the Conquerour; un∣less a certainty were agreed on. And this right of keeping the Captives is usually granted all that have taken them, except the persons of eminent place and digni∣ty; for, over these, the manners of most * 1.1766 Nations give a right to the Common∣wealth, or to the head thereof.
HE that can subject unto himself par∣ticular men by personal servitude, no wonder if he can subject unto himself a community, whether it be a Common∣wealth, or part thereof, by a subjection either meerly Civil, or meerly herile, or mixt. Therefore Tertullian said, Empires * 1.1768 are got by arms, and propagated by vi∣ctories. Alexander in Curtius; Laws are given by Conquerors, receiv'd by the Con∣quered † 1.1769. Ariovistus in Caesar * 1.1770 saith, It is the Law of War, that they who have overcome should govern those whom they have overcom, as they please. Justin * 1.1771 out of Trogus relates, that the Warriors before Ninus sought not Rule for them∣selves but Glory, and being content with honour absteined from dominion; but Ninus was the first that enlarged the bounds of his empire, and subdued other Nations; whereupon, it went into a Cu∣stom. Bocchus in Sallust, saith, He took arms to defend his Kingdom; for, part of Numidia, whence he had expelld Jugur∣tha, was become His by the Law of War. Now, Empire may be acquired to the Conqueror, either only as 'tis in a King † 1.1772
or other Governour, and then He suc∣ceeds only into his right, and no far∣ther; or also as 'tis in the people; in which case, the Conqueror hath Empire so, that he may also alienate it, as the people might. And so it came to pass, that some Kingdoms were in patrimony, as we have said afore † 1.1773. Farther, it may be, that the Commonwealth that was, may cease to be a Commonwealth; either so, that it may be an accession of another Com∣monwealth, as the Roman Provinces; or, that it may adhere to no Common∣wealth, as, if a King waging War at his own charge, so subject a people to him∣self, that he will have it governd, not for the profit of the people chiefly, but of * 1.1774 the Governour; which is a property of Heril Empire, not of Civil. Government, saith Aristotle, is either for the utility of the Governour, or for the utility of the Governed; this hath place among free men, that among Masters and servants. The people then, that is kept under such command, will be for the future, not a Commonwealth, but a great Family * 1.1775. And hence may be understood, what kind of empire is that which is mixt of Civil & Heril, to wit, where servitude is mingled with some personal liberty. So we read, people have been deprived of arms, and
commanded to have no iron, but for a∣griculture; and others have been compell to change their language and course of life. Moreover, as things which did be∣long to particular men, are acquir'd by the right of war to them, who subject those men to themselves; so also the things of a Community become theirs who sub∣ject to themselves the Community, if they please. Annibal in his Oration to his Soldiers: Whatsoever the Komans do * 1.1776 possess, being gotten and heaped up with so many triumphs, All that together with the masters will be ours. So Pompey, what * 1.1777 Mithridates had taken and added to his Empire, subdued to the Roman people. Wherefore also incorporal rights of a com∣munity will become the Conqueror's, so far as he pleaseth. So, Alba being con∣quer'd, * 1.1778 the Romans challenged to them∣selves the rights of the Albans. Whence it follows, that the Thessalians were whol∣ly freed from the obligation of the hun∣dred talents; which sum, due from them to the Thebans, Alexander the Great, having conquerd Thebes, forgave them by the right of victory. Nor is that true which in Quintilian is alleged on behalf of the Thebans, that that only is the con∣queror's which he holds himself: and, in∣corporal right cannot be holden; and that the condition of an heir and of a conque∣ror is different, because the right passeth to the former, the thing to the later. For,
•…•…he that is Master of the Persons, is also Master of the things, and of all right which belongs to the Persons. He that is * 1.1779 possessed, doth not possess for himself; nor hath he any thing in his power, who hath not himself. Yea, if one leave the right of a Commonwealth to a conquerd people, he may take to himself some things which were the Commonwealths; for, it is at his pleasure, to appoint what measure he will to his own favour. The fact of Alexander was imitated by Cesar, when he forgave those of Dyrrachium the debt which they owed to some one of the adverse party. But here might be obje∣cted, * 1.1780 that the War of Caesar was not of that kind of which this Law of Nations was established † 1.1781.
I Must now return, and take away from those that wage War almost all that I have seemed to give them, and yet have not given. For I said at first, when I be∣gan to explain this part of the Law of Nations, that many things are lawfull or of right, in that they are done impunè, without punishment, and partly because coactive judgments do lend them their
authority; which things yet, either are exorbitant from the rule of right; whe∣ther that rule be placed in right strictly so call'd, or in the precept of other ver∣tues; or els at least may be omitted bet∣ter and with more commendation among good men. In Seneca's Troades, when Pyrrhus saith, No law spares a captive, or hinders his punishment, Agammenon re∣plies, What Law forbiddeth not, Pudor for∣bids to be done. Where Pudor (or, Mode∣sty) signifies not so much respect of men and reputation, as of Right and Good, or at least, of that which is righter and better. And in that sense you may often see Justice joyn'd with Pudor, Plato; Ju∣stice is call'd the companion of Pudor, and * 1.1783 that deservedly. And in another place; God fearing the destruction of mankind, * 1.1784 gave unto men Justice and Pudor, the or∣naments of Cities, and bonds of friendship. Cicero so distinguisheth between Justice * 1.1785 and Modesty, that he makes it the part of Justice, not to violate men; of modesty, not to offend them. With that which we brought out of Seneca well agrees a say∣ing * 1.1786 of the same Author in his Philosophic writings; How narrow is that Innocence, to be good according to Law * 1.1787? How much larger is the rule of duties than of Law? How many things doth piety, humanity, liberality, justice, faith require? all which are without the Statute-book. Where you see Law is distinguished from Justice;
because Law conteins that which is of force in externall judgments. The same difference Aristotle intimates, disputing * 1.1788 whether the servitude be to be called just, which ariseth from War. Some respecting one kind of just (for the Law is a certain just thing) say, servitude arising from war is just: yet not perfectly; because it may happen, that the cause of Warring was un∣just. So also the Roman Lawyers, what * 1.1789 oftentimes they call the right of captivity, they elswhere call injury, and oppose it to natural equity; and Seneca saith, the * 1.1790 name of servant came from injury, respe∣cting that which oft happens. And the * 1.1791 Italians in Livy, retaining the things they had taken from the Syracusians in War, are called pertinacious to confirm their in∣jury. Dion Prusaeensis, when he had said, * 1.1792 Captives in war, if they returned to their own, receiv'd their liberty, addes, as men that were injuriously kept in servi∣tude. Lactantius * 1.1793 speaking of the Phi∣losophers; When they discourse of offices perteining to war, they accommodate their words neither to justice nor to true vertue, but to this life and the custom of Com∣monwealths. And a little after he saith, the Romans did injury by Law. First, then we say, If the cause of war be unjust, al∣though war be undertaken after a solemn manner, all acts that have their rise thence, are unjust by internal injustice: so that they, who knowingly do such acts, or do
cooperate to them, are to be reckoned i•…•… their number, who, without Repentance, cannot enter into the Kingdom of hea∣ven. * 1.1794 And, true Repentance, if time and abi∣lity be not wanting, by all means re∣quires, that he who hath given the da∣mage, * 1.1795 whether by killing, or by spoiling things, or by taking the prey, repair the same * 1.1796. Therefore God saith, he hates the fasts of those that detein the priso∣ners not justly taken * 1.1797; and to the Ni•…•…i∣vites their King proclames, that they turn every one from the violence that is in their hands, seeing this by natures light, that without such restitution repentance would be feign'd and fruitless. And thus we find not only Jews † 1.1798 and Christians to have judged, but the Mahumetans too † 1.1799. Now, to restitution are the Au∣thors of war (whether by right of power, or by counsil) bound, concerning all the things that usually follow war; yea such things as are not usual, if they have com∣manded any such, or perswaded, or when they could hinder, have not hindred. So al∣so Leaders are bound concerning the things done by their Command; and all soldiers fully, who have concurred to any common act, as namely the burning of a town; in divided acts, every one for the damage whereof himself is the only cause, or at least one of the causes. Nor can I * 1.1800 think, that exception is to be admitted, which is added by some, concerning them
that do service unto others, if in them be any part of the fault. For the fault suffi∣ceth to restitution without deceit. Some there are, who seem to be of opinion, that things taken in war, though the cause of war was not just, are not to be restored; because Warriors, when they enter into war against each other, are understood to have allowed those things to the Takers. But, no man is easily presumed vainly to expose his own, and war of it self is far distant from the nature of Contracts. And, that peaceable people might have somewhat certain which they might fol∣low, and not be entangled in war against their will, it sufficed to introduce that ex∣ternal dominion of which we have spo∣ken. Which also the said Authors seem to determine in the Law of the captivity of persons. Therefore the Samnites in Li∣vy, We have sent back, say they, the * 1.1801 things of our enemies taken in prey, which seemed ours by the right of War. They say, seemed, because that war was un∣just, * 1.1802 as the Sammites had before acknow∣ledged. Not unlike is this, that from a contract entred without deceit, wherein is inequality, by the Law of Nations there springs a certain faculty of compel∣ling him who hath contracted, to fulfil his Convenants; and yet notwithstanding is he bound by the office of an honest and good man, who hath covenanted for more than is right, to reduce the matter to equa∣lity.
Moreover, He that hath not him∣self given the damage, or hath given it without all fault, but hath in his hand a thing taken by another in unjust war, is bound to restore it; because, why the o∣ther should go without it, there is no cause naturally just, not his consent, not his i•…•…l desert, not compensation. There is an hi∣story pertinent to this in Valerius Maxi∣mus: The people of Rome, saith he, when * 1.1803 P. Claudius had conquer'd the Camerini by his fortunate conduct, and had sold them under the spear, though they saw the trea∣sury encreas'd with money, and the bounds of their fields enlarged, nevertheless, be∣cause the action seemed not to be done by their General upon a clear account, with very great care they sought them out, and redeemed them, and restored their lands * 1.1804. Likewise to the Phocenses, by decree of the Romans, was also that publick liber∣ty rendred, and the fields that had been taken away. And afterward the Ligures, who had been sold by M. Pompilius, the price being repaid to the buyers, were re∣stor'd to liberty, and ca•…•…e had for the re∣stitution of their goods. The same was decreed by the Senate concerning the Abderites, the reason being added, be∣cause * 1.1805 an unjust War is waged against them. Howbeit, if he that keepeth the thing hath laid out any cost or pains, he may deduct as much as was worth to the master to attain a possession despair'd of;
but if he that had the thing, being with∣out fault, hath consumed or alienated it, he will not be bound, but for so much as he may be esteemed richer for it.
BUt, neither in a just War is that to be admitted which is said, He gives * 1.1807 all, that denyes me right. Better said Ci∣cero: There are some offices to be done even to them, from whom you have re∣ceived injury; For revenge and punish∣ment must have a measure † 1.1808. The same * 1.1809 Author praiseth the old times of the Ro∣mans, when the Issues of Wars were, either mild, or necessary. Cruel they are, * 1.1810 saith Seneca, which have cause of punish∣ment, but have no measure. They may, saith Aristides, they may also, who revenge * 1.1811 themselves be unjust, if they exceed the mean. For, he that in punishing goes far∣ther than is meet, is the second author of injury † 1.1812. Now, when killing is just in a just war, according to internal justice, when it is not, may be understood by what we have said in the beginning of this Book. For it happens, that one is shin, * 1.1813 on purpose, or without purpose.
On purpose no man can be slain justly, unless either for just punishment, or as without it we cannot defend our life and our goods; though this, to kill a man for perishing things, however it be not con∣trary to justice strictly so called, depar∣teth from the Law of Charity. That pu∣nishment may be just, it is necessary that he who is slain have offended; and that so much, as may be ayenged with the pu∣nishment of death in the sentence of an equall Judge. Whereof we shall say the less now, because we have said so much afore about punishments. And afore, when we spake of suppliants (for there are suppliants as well in War as in Peace) we distinguished 'twixt misfortune and injury. Gylippus in that place of Die∣dorus * 1.1814 enquires, in which ranck the A∣thenians ought to be placed, whether of the unfortunate, or of the unjust; and saith, They cannot be accounted unfor∣tunate, who of their own accord, provo∣ked by no injury, had begun a war up∣pon the Syracusians: whence he infers, Being they had of themselves undertaken the war, they must also be content to bear the evils thereof. An example of the un∣fortunate are They, who are with the enemies, without an hostile mind; such as the Athenians were in the times of Mithridates, of whom Velleius thus; 〈◊〉〈◊〉 * 1.1815 any one impute to the Athenians this time of rebellion, wherein Athens was be∣sieged
by Sulla, he is too ignorant of truth and antiquity. For, So sure was the A∣thenians fidelity toward the Romans, that always and in all things, whatever was done sincerely, the Romans said was done fide Attica, with Attick faith. But, at that time the Athenians were in a mise∣rable condition, opprest by the force of Mi∣thridates: They were possest by their ene∣mies, and be sieged by their friends: They had their minds without the walls, and their bodies within, yielding to necessity. Which last clause seems taken out of Li∣vy, in whom Indibilis the Spanyard saith, his body only was with the Carthagi∣nians, * 1.1816 his Soul with the Romans. Verily, as Cicero speaketh, all men having their * 1.1817 life in anothers hand, more often think, what he can do, in whose power they are, than what he ought to do. The same for Ligarius; The third time is, when after the coming of Varus he stayd in Africa: which, if it be a crime, is a crime of ne∣cessity, not of will. And Julian considered this in the cause of the Aquileians, as Ammianus testifies, who, when he had * 1.1818 related the punishment of a few, addeth, The residue, all, went off free; whom ne∣cessity, not their will, had engaged in the tumult * 1.1819. The old Commentator upon the place of Thucydides about the Corcy∣reans Captives sold; He shews the cle∣mency worthy of Grecian Natures: for tis hard tok ill Captives after fight, servants
especially, who do not war of their own ac∣cord. Moreover we must note, between full injury and meer misfortune often in∣tercedes some Mean, which is as 'twere compos'd of both: so that it can neither be call'd the act of one knowing and willing, nor meerly the act of one ignorant or un∣willing. Aristotle put the name 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 * 1.1820 upon this kind; we may call it some fault. The same Aristotle; Equity com∣mands, * 1.1821 that we equal not in•…•…uries and faults, nor faults and misfortunes; mis∣fortunes are they, which could not be fore∣scen, nor are admitted with a wicked mind; faults, which might be foreseen, yet are not done with a wicked mind; in∣juries, which are done with a wicked mind and purposely † 1.1822. This distinction, by Themistius in the praise of the Emperor Valens, is applyed to our argument, thus: You have made a difference 'twixt an in∣jury, a fault, and a misfortune. Although you neither study Plato, nor read Aristotle, yet you put their doctrin into practice. For, you have not thought them worthy of e∣qual punishment, who from the beginning perswaded the War, and who afterward were carried with the stream, and who at last
submitted to him that now seemed to have the highest power. But, the first you con∣condemned, the next you chastised, the last you pityed * 1.1823. So, in Josephus, (lib. 5. belli Jud.) Titus inflicts 〈◊〉〈◊〉 Punishment up∣on the Leader in the Crime, verbal upon the following multitude. M•…•…er misfor∣tunes, neither deserve punishment, nor oblige to the restitution of the damage, unjust actions, to both; A m•…•…an fault, as it is liable to restitution, so it often de∣serves not punishment, especially capi∣tal. What Themistius notes, that the Au∣thors of war are to be distinguisht * 1.1824 from the Followers, is frequently Exemplified in Histories. Herodotus * 1.1825 relates, how the Grecians took revenge of those, who were Authors to the Thebans of a defection to the Medes. So were the Princes of Ar∣dea beheaded, as Livy * 1.1826 tells us; And in the same Author * 1.1827, Val. Laevinus, Agri∣gentum being taken, beat with rods and beheaded those that were Chief in the bu∣siness; the rest, with the spoil, he sold. The Athenians, in Thucydides * 1.1828, repen∣ted of their decree against the Mityle∣naeans, to put to the sword the whole City, and not the Authors of the desection on∣ly. And Diodorus saith, Demetrius ha∣ving taken Thebes, put to death only ten
of the principal offendors. Again, in the Authors of War, causes are to be distin∣guished: * 1.1829 for some, though not just, you are such, that they may impose upon men not wicked. The Writer to Heren∣nius puts this as a most favourable cause of deprecation, if one hath offended, not out of hatred or cruelty, but out of duty and right affection. Seneca's wise man, will dismiss his Enemies safe, and some∣times * 1.1830 commended, if they took Arms for honest causes, for faith, for league, for li∣berty. In Livy, the Caerites ask pardon * 1.1831 for their errour, that they aided their Kins∣men the Phocenses. The Chalcidians and others, that helped Antiochus according to their league, had pardon granted them by the Romans. Cicero saith, they are to * 1.1832 be saved, who were not cruel and barba∣rous in the War: And, that Wars made for the glory of Empire, are to be waged with less bitterness. That hath place of∣ten, which is in Cicero, concerning the war of Caesar and Pompey: It was a dark War: a Contention 'twixt most famous leaders: many doubted what was best. And, what he saith elswhere: Though we were in some fault of human error, yet certain∣ly we are free from wickedness * 1.1833. Just as in Thucydides things are said worthy of par∣don, which are done, not out of malice, but rather by mistake. What Brutus wrote of Civil, I think may be well re∣ferd to most wars, They are more sharply
to be forbidden, than prosecuted. And where Justice doth not exact this, yet 'tis agreeable to Goodness, agreeable to Mo∣desty † 1.1834, agreeable to Magnanimity. By pardoning was increased the Greatness of the Roman People, saith Sallust: Tacitus: No less Gentleness is to be used toward suppliants, than stifness toward an enemy. It is a memorable passage in the fourth Book to Herennius: Well did our Ance∣sters observe this, to deprive no King of life, whom they had taken in War. Why so? Because it was not meet to use the power fortune had given in the punishment of them, whom the same fortune so lately had placed in the higest dignity. But did he not lead an Army against us? I will not remember that. Why so? Because it is the part of a valiant man to take them for enemies, that contend for victory; and to look upon the conquered, as men: that va∣lour may diminish the danger of War, and Courtesy may encrease the honour of Peace. But would he have done so, had he over∣com? Why then do you spare him? Because I use to contemn such folly, not to imitate it † 1.1835 Perseus, Syphax, Gentius, Juba, and in the time of the Cesars, Caractacus and others, escaped capital Punishment; so that it may appear, both the causes of
war and the manner of waging it were considerd by the Romans: whom yet Ci∣cero and others do confess to have been somewhat too sharp in the use of Victo∣ry. VVherefore M. Aemilius Paulus, in Diodorus Siculus, not amiss admonisheth the Roman Senators, in the Cause of Per∣seus: If they feared nothing human, yet they should fear divine revenge, imminent over them that use their victory with too much pride and insolence. And Plutarch notes, in the wars among the Greeks, the * 1.1836 very enemies held their hands from the Lacedemonian Kings, in reverence of their dignity. An enemy therefore, that will regard, not that which human Laws permit, but that which is his duty, that which is good and pious, will spare even an Enemies blood: and will put none to death, but to avoid death himself, or some∣what like death, or els for sins proper to the person, which amount to capital of∣fences. And yet, to some that deserve death, he will forgive, either all punish∣ment, or that of death; either for huma∣nity sake, or for other probable causes. Excellently saith the now-cited Diodorus * 1.1837 Siculus: Expugnations of Cities, prospe∣rous fights, and whatsoever is in War suc∣cessfull, more often proceed from fortune than from valour: but, in the highest power, to bestow mercy upon the Conque∣red, is the work of Providence alone * 1.1838. Now, concerning the slaughter of them,
who are killed by chance, not on purpose, we must remember, it is a part of mercy, if not of Justice, not without great causes and such as conduce to the safety of ma∣ny, to enterprize •…•…uch a thing, whence destruction may come upon the innocent. Polybius is of this mind, saying: It is the part of good men, not to wage a de∣structive * 1.1839 War, no not with the bad; but so far, that offences may be repaird and amen∣ded: not, to involve the innocent with the guilty in the same ruine; but for the inno∣cent, to spare the guilty also.
UPon those premises, 'twil not be hard to determine of the specials that fol∣low. Let age excuse a child, sex a wo∣man, * 1.1840 saith Seneca in the Books where he is angry with Anger. God himself, in the * 1.1841 wars of the Hebrews, even after peace offerd and refus'd, will have women and infants spared; besides a few Nations ex∣cepted by special command; against which the war that was, was not of men, but of God; and so 'twas called. And when he ordered the Madianitish womē to be slain, for a proper crime of theirs, he excepted Virgins that were untoucht. Yea, when he had very severely threatned the Ni∣nivites with destruction for their most hei∣nous
sins, he suffered himself to be re∣streined by compassion upon many thou∣sands of that age, that knew not good from evil. Like whereunto is that sen∣tence of Seneca: Is any one angry with * 1.1842 children, whose age † 1.1843 doth not yet discern the differences of things? If God hath done and determined thus, who may without injustice slay any men of what sex or age soever without any cause, being the giver and Lord of life * 1.1844; what is fitting for men to do, to whom he hath given no right o∣ver men, but what was necessary to hu∣man safety and the conservation of socie∣ty? Add here, concerning children, the judgment of those Nations and times wherein equity most prevailed. We have Arms (saith Camillus in Livy) not a∣gainst that age, which even in taking of Cities is spared, but against armed men. And this is among the Laws of War: he means the Natural Laws. † 1.1845 Plutarch spea∣king of the same thing: There are (saith he) among good men, certain Laws of War too. VVhere note that, among good men, that you may descriminate this Law from that which is customary and con∣sisteth in impunity. So Florus saith, * 1.1846 It could not otherwise be, without violation
of integrity. In another place of Livy: An age, from which Soldiers in their an∣ger * 1.1847 would abstein. And elsewhere: Their cruel wrath went on, even to the slaughte∣ring of infants. Now, that which hath place in children always, that have not attained the use of reason, for the most part prevails in women; that is, unless they have committed something peculiar∣ly to be avenged, or do usurp manly Of∣fices. For it is a sex, as Statius speaks, that hath nothing to do with the sword † 1.1848. Alexander in Curtius * 1.1849; I am not used to wage war with Captives and Women: he must be armed, to whom I am an enemy. Grypus in Justin * 1.1850. None of his Ance∣stors, among so many domestick and ex∣ternal wars, did ever after victory shew cruelty to women, whom the softness of their sex exempteth from perils of War, and the rough handling of the Conquerors. Another in Tacitus: He carried arms a∣gainst armed men, not against women. Valerius Maximus * 1.1851 calls it barbarous and intolerable cruelty which Munatius Flaccus shewed to Infants and Women. Latinus Pacatus saith, Women are a sex which wars do spare. Papinius hath the same of old men: They are a company vio∣lable * 1.1852 by no arms. The same is to be de∣termined universally of males, whose course of life abhorres from war. By the Law of War, they that are armed and re∣sist are stain, as Livy speaketh: that is, * 1.1853
by that Law which agrees with Nature So Josephus saith; It is meet, that 〈◊〉〈◊〉 * 1.1854 fight they be punisht that use weapons, no hurt must be done the guiltless. Camillus at the taking of Veiae proclamed, that the * 1.1855 unarmed should not be touched. In this rank are first to be placed; Ministers of Sacred things: for these by the antient custom of all Nations abstein from arms, and therfore no force was offerd them. So the Philistins, enemies of the Jews, did no harm to the College of the Prophets * 1.1856 that was at Gaba, as we may see, 1 Sam, 10. 5, 10. And so, to another place, where was the like College, as secluded from all injury of arms, David fled with Samuel, 1 Sam. 19. 18. The Cretians, † 1.1857 Plat•…•…ch tells us, when they were embroiled in Civil War, saved the Priests * 1.1858 from all harm, and those whom they called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, men that had the care of but als, Strabo † 1.1859 notes, when all Grecce in old time was enflam 〈◊〉〈◊〉 with war, the Eltans, as being sacred to Jupiter, and their guests, lived in secure peace. With Priests are justly equald in this respect, they that have chosen a like kind of life, as Monks and Penitents; whom therefore, as well as Priests, the Canons following na∣turall equity, will have spared * 1.1860. To these you may deservedly add those, who
give themselves to the studies of good lear∣ning, and sciences useful to mankind. After these, Husbandmen; whom the Canons also adscribe. Diodorus Siculus * 1.1861 reports of the Indians to their praise: In •…•…itells the Enemies kill one another, but they meddle not with Husbandmen, as •…•…en that are profitable to the publick. Of the antient Corinthians and Megareans, Plutarch: None of them did Husband∣nen any haerm. And Cyrus sent a message to the King of Assyrians, That he was * 1.1862 ready to save those that tild the ground, from all indemnity. Suidas, of Belisarius: He was so tender of the Countrymen, and took so much care of them, that, whilst be commanded, none of them ever had any violence offerd him. The Canon addes Merchants; which is not only to be un∣derstood of them that stay for a time in the enemies quarters, but of perpetual subjects: For their life hath nothing to do with Arms. And under this name are conteind also other Workmen and Arti∣ficers, whose gain loves not War, but Peace.
THat we may come to them that have born arms, we have afore related the saying of Pyrrh•…•…s in Seneca, that we are forbidden by Pudor, i. e. by respect of equity, to take away a Captives life; a like sentence of Alexander we had, * 1.1863 wherein Captives are joind with women. Let that of S. Augustin be added: Let 〈◊〉〈◊〉 Will, but Necessity † 1.1864 slay a fighting Ene∣my. As violence is rendred to him that warreth and resisteth, so to one conquerd
or taken, mercy is now due, especially to one not likely to trouble our Peace. Xenophon of Agesilaus: He charged his Soldiers, that they should not punish Captives., as guilty, but keep them, as men. Diodorus Siculus: All (the Greeks) oppose them∣selves * 1.1865 to such as resist; and spare such as submit. In the judgment of the same Author, The Macedonians under Ale∣xander * 1.1866 dealt more extremely with the Thebans, than the Law of War would permit. Sallust, in his Jugurthin Histo∣ry, having related the slaughter of the yong men after they had yielded, saith, It was done against the Law of War: which is, against the nature of Equity, and the manner of milder persons † 1.1867. Ta∣citus * 1.1868 commends Primus Antonius and Varus, Flavian Commanders, because they never shewed cruelty after battell † 1.1869. The Prophet Elisha speaks about Cap∣tives to the King of Samaria, thus * 1.1870: Wouldst thou smite those whom thou hast taken captive with thy sword, and with thy bow † 1.1871? The Byzantians and Chalce∣donians, because they had killed a good number of Captives, are marked with this Elogy in Diodorus Siculus * 1.1872: They did acts of exceeding great Cruelty. The same Author elswhere calls it Common-right, to spare Captives † 1.1873: whosoever do other∣wise,
without controversy (saith he) they do amiss. To spare Captives, is a command of Goodness and Equity, saith Seneca * 1.1874; and in Histories we find them every where commended, who, when too great a number of Captives might be bur∣densome or dangerous, chose rather to let them all go, than to slay them. For the same causes, they that yield up themselves, covenanting for the saving of their lives, whether in battell or in a siege, are not to be rejected † 1.1875. Therefore Arrian saith, the slaughter made by the Thebans upon those that yielded, was not according to the manner of the Grecians. Likewise in Thucydides * 1.1876: Ye receiv'd us willing, and stretching forth our hands: and the Gu∣cians use not to kill such. The Syracusian Senators in Diodorus Siculus; It is wor∣thy of a Noble mind, to spare a suppliant. Sopater: To save suppliants, is a custem in-Wars. In towns besieged, 'twas obser∣ved by the Romans, before the Ram had simitten the wall. Caesar * 1.1877 denounceth to the Advatici, He would save their City, if; before the Ram had touched the wall, they yielded. Which is still in use, in weak places, before the Great Guns are fired: in stronger places, before an As∣salt is made upon the walls. But 〈◊〉〈◊〉 * 1.1878 not so much respecting what is done, 〈◊〉〈◊〉
what ought to be done, delivers his judg∣ment thus; As you must consult for the good of those whom you have subdued by force, so are they to be receiv'd into pro∣tection (though the Ram hath smitten the wall) who lay down their arms, and fly to the mercy of the Generals. The Hebrew Interpreters observe, That their Ance∣stors had a custom, when they besieged a City, not to engirt it round, but to leave one part open for those that would fly † 1.1879 to the end the less blood might be shed at Taking of it. The same Equity commands, that They be spared, who without condi∣tions submit themselves to the Conque∣ror, or become suppliants. To kill them that call for mercy, is cruel, saith Taci∣tus. * 1.1880 Sallust * 1.1881 also, of the Campsanians, who yielded themselves to Marius, when he had related the slaughter of the yong men, addes, It was done against the Law of War, that is, the Natural Law. The same elswhere * 1.1882, Not men armed, nor in battell according to the Law of war, but suppliants were slain † 1.1883, Yea, This is also to be endevoured, that they may rather be constrained through fear to yield, than be slain. This is prais'd in Brutus; who sufferd not his men to do execution upon his Adversaries, but surrounded them with his Horse, commanding them to be spared, as those that would presently be His.
AGainst these Precepts of equity and Natural Law, are wont to be brought exceptions very unjust: to wit, if talion be exacted, if there be need of error, if there was an obstinate resistance. But, that these things are not sufficient to ju∣stify slaughter, he will easily conceive, who remembreth what we have set down a fore about the just causes of killing. From Captives, and those that yield or desire to * 1.1884 yield, there is no danger: that therefore they may be justly killed, there must be some antecedent Crime, and that such a one, as an equal judge would think worthy of death. And so we see sometimes great severity shewed to Captives, and those that have yielded; or, their yiel∣ding on condition of life not accepted; if, after they were convinced of the injustice of the War, they had nevertheless persi∣sted in arms; if they had blotted their enemies name with unsufferable disgraces; if they had violated their faith, or any right of Nations, as of Embassadors; if they were fugitives. But, Nature admits not talion, except against the same per∣sons that have offended; nor doth it suf∣fice, that the enemies are by a fiction con∣ceived to be as it were one body, as may be understood by what is said above * 1.1885, of the Communication of punishments. W•…•…
read in Aristides, Is it not absurd to imi∣tate, * 1.1886 what you do condemn? Plutarch for this accuseth the Syracusians, that they * 1.1887 slew the wives and children of Hicetas, only for this reason, because Hicetas had slain the wife, sister, and son of Dion. Moreover, the benefit which is hoped from terror for the future, perteins not to the giving of a right to kill; but, if there is a right, it may be among the causes for which that right is not remitted. And, For a more obstmate affection to ones own side, if the cause maintained is not at all dishonourable, that deserves not punishment, as the Neapolitans discourse * 1.1888 in Procopius? or, if there is any punish∣ment thereof, it ought not amount to death; for an equal Judge would not so determine. Alexander, at a certain town, when he had commanded all the youth to be slain; because they made so sharp resi∣stence, seemed to the Indians to wage war * 1.1889 after the manner of Robbers: and the King fearing such a blemish of his Name began to use his victory more mildly. It was better done by the same King, to spare the Milesians: because he saw they were gallant men, and faithful to their own party: which are the words of Ar∣rian. Phyto Governor of Regin, when, for defending the town so stoutly, he was by command of Dionysius drawn to tor∣ture and death, cryed out, He was pu∣nisht, because he would not break his
trust and betray the place, but God would suddenly revenge it: Diodorus Siculus sty∣leth these 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, unlawfull punish∣ments. I am very much pleas'd with that vote in Lucan † 1.1890.
May he be Conqueror, who means to spare His Fellow-Citizens, that adverse are:Provided, by the Name of Fellow-Citizens we understand, not those of this or that Nation, but of that common Countrey of all Mankind. Least of all is Slaughter justifyed by grief and anger for some overthrow receiv'd, as we read A∣chilles, Aeneas, Alexander, sacrificed to their friends the blood of Captives and such as yielded † 1.1891. Wherfore Homer just∣ly saith of Achilles on this occasion: He resolved on a wicked act.
MOreover, where offenses are of that nature, that they may seem wor∣thy of death, it will be a point of Mercy, because of the Multitude of them, to remit somewhat of extreme right. Of which cle∣mency we have God himself for Author, who was pleased, that Peace should be offerd to the Cananites and their neigh∣boring Nations, offenders in the highest degree; such a Peace, as allowed them life on condition of being tributaries. Per∣tinent here is that of Seneca: The Seve∣rity * 1.1892 of a General shews it self against par∣ticulars: but pardon is necessary, where the whole Army is revolting. What takes away Anger from a wise man? The Mul∣titude of Transgressors † 1.1893. And that of Lucan * 1.1894:
Casting of Lots was ordained, saith Cicero, that too many might not be pu∣nished. Sallust to Cesar: No man exhor∣teth you to cruel punishments, or bitter sentences, whereby a City is rather wasted than reformed. As to Hostages, what is to be determined out of the Law of Nature may be seen above. Of old, when it was commonly believed, that every one had as much power over his own life as over other things within his propriety; and that that power, by consent either tacit or express, was devolved from every particular per∣son upon the Commonwealth; it is the less to be admir'd, if we read, Hostages (though in themselves innoxious) were put to death for the offense of the Com∣monwealth, either as by their own pecu∣liar, or as by the publick consent, where∣in their own was included also. But after that the more true and perfect Wisedom hath taught us, that Dominion over life * 1.1895 is excepted by God, it follows, that by consent alone no man can give to any, power and right over the life either of himself, or of his Citizen. And therefore it seem'd atrocity to Narses a good Ge∣neral, to take punishment of innoxious Hostages, as Agathias tells us: (and o∣ther * 1.1896
Authors say the like of others:) even by Scipio's example, who said he would not shew his displeasure upon harmless Hostages † 1.1897, but upon those that had re∣volted: and, that he would not take re∣venge of the unarmed, but of the armed enemy. Now, that among the later Lawyers some of great name, say such a∣greements are of force, if they be con∣firm'd * 1.1898 by custom, I admit it, if by right they mean impunity only, which in this argument often comes under that appel∣lation: But, if they suppose them free from sin, who by ag•…•…eement alone take away any ones life, I fear they are de∣ceiv'd themselves and by their per•…•…lous authority deceive others. Clearly, if he that comes an Hostage, be, or were be∣fore, in the number of grievous dclin∣quents; or, if afterward he hath broke his faith given by him in a great matter; pos∣bly, the punishment may be free from in∣jury. But Clodia, who came not an Ho∣stage of her own accord * 1.1899, but by Order of the City, when she had passed 〈◊〉〈◊〉 and escaped, was not only safe, but prai∣sed for her Vertue by the Etruscian King, as Livy * 1.1900 speaks in this History. We must here add this, all combates which are of no use to obtem right, or end the War, but have meer ostentation of strength pro∣posed to them * 1.1901, are contrary, both to the office of a Christian man, and to Huma∣nity it self. Therefore Rulers ought seri∣ously
to forbid them, being to render in account for blood unprofitably shed, to Him in whose stead they bear the sword. Surely, Sallust also hath commended Ge∣nerals, that bought their victories at the least expence of blood; And Tacitut saith of the Catti, a people of approved va∣lour: Their excursions and 〈◊〉〈◊〉 fights were seldom † 1.1902.
THat one may destroy the Goods of another, one of these three things is a necessary antecedent: either such a ne∣cessity which ought to be understood ex∣cepted in the first institution of dominion, as, if one to avoid his danger, throw away down the river a third man's sword, which a mad man is about to use; in which very case yet, it is the truer opinion, th•…•… there remains an obligation of repairing the loss: or, some debt proceeding 〈◊〉〈◊〉 inequality, to wit, that the thing wasted or lost may be reckoned for that debt, as receiv'd; for otherwise there were 〈◊〉〈◊〉 right: or, some evil desert, whereto 〈◊〉〈◊〉 a punishment is meet, or whose mea•…•… the punishment doth not exceed; for, 〈◊〉〈◊〉
a Divine of sound judgment rightly notes, that for cartel driven a way, or some houses * 1.1904 〈◊〉〈◊〉, a whole Kingdom should be laid wast, is no equity; which also Polybius saw, who will have punishment in war not run on in infinitum, but so far, that Offenses may be in fit manner expia∣ted. And these causes truly, (and only within these bounds,) bring it to pass, that there is no injury. Notwithstanding, un∣less the cause of Profit perswade, it's folly to hurt another without Good to himself. Wise men therefore use to be mov'd by their own Interests. The chief is that, observed by Onesander; Let him * 1.1905 be sure to wast the Enemies Countrey, to burn and populate; for scarcity of money and fruits minishes war * 1.1906 as much as plenty encreases it. Wherewith agrees that of Proclus., 'Tis the part of a good General to cut off the enemies provisions on every side. Curtius, of Danius: He supposed, by want to overcome his enemy, having nothing but what he got by rapine. And that population truly is to be born with, which doth in short time humble the enemy to a petition for Peace; which kind of war Halyattes used upon the Mi∣lesians, the Thracians upon the Byzan∣tians, the Romans upon the Campanians Carpenates, Spaniards, Ligures, Ner∣vians, Menapians; But, if you rightly weigh the matter, you shall find such things done more often out of hatred,
than prudence. For, most commonly 〈◊〉〈◊〉 happens, that either those moving causes cease, or other causes move the other way more strongly. First, 〈◊〉〈◊〉 his will come to pass, if we our selves so possess a fruitful thing, that it cannot bring any fruit to the enemies. Whereunto properly that Law Divine hath respect, which will have wild Trees bestowed upon works of war, but the fruitful kept for food, the cause being added, that Trees cannot, as Men do, rise against us in a battell. Which, by similitude of reason, Philo enlarged al∣so to fruitful fields † 1.1907. And Josephus upon the same place saith, Trees, if they had a voice, would cry out that they do un∣justly bear the punishments of war, being not the causes of war. Nor hath that of Pythagoras (if I mistake not) any other rise, in Jamblichus: Do not hurt, nor cut up any mild and fruit-bearing Tree. And Por∣phyry describing the manners of the Jews, extends this Law * 1.1908 (custom as It hink in terpreting it) even to beasts serving for Countrey-work. For these also must be spared in war, as Moses hath commanded.
But the Talmud-writings and the He∣brew Interpreters add, that this Law is to be stretched * 1.1909 to every thing, which may perish without cause, as, if buildings be burnt, things to be eaten and drank be corrupted. Agreeable to this Law is the prudent moderation of Timotheus the Athenian Captain, who, as Polyaenus relates, sufferd no house to be pull'd down, nor fruit-tree to be cut up. There is a Law of Plato in his fift De repub. That no ground be wasted, no house fired. Much more will this have place after complete victory. Cicero * 1.1910 approves not the over∣throw of Corinth, though the Embassa∣dors of the Romans were shamefully trea∣ted there: and the same Cicero in another place, saith, it is a horrible, nefa∣rious, odious War, that is made with walls, roofs, pillars, posts. Livy praiseth the lenity of the Romans, because ha∣ving taken Capua, they were not furious † 1.1911 in firing and ruining the innocent walls and building. Agamemnon in Seneca saith, He was willing Troy should be con∣querd, not levell'd. In∣deed, the sacred Histo∣ry * 1.1912 tells us that some Ci∣ties were by God con∣demned to destruction: and, that against the former general Law the trees of the Moabites were comman∣ded * 1.1913 to be cut up. But, that was not done by hostile hatred, but in just detestation
of their Iniquities, which were either publickly known, or sentenc'd to such pu∣nishment by the Judgment of God him∣self. Secondly, That which we have said will also come to pass, in a doubtful pos∣session of a Countrey, if there be great hope of a speedy victory, whose reward will be both the Countrey and the fruit. So the Great Alexander, as Justin * 1.1914 re∣lates, kept his soldiers from the population of Asia, Bidding them spare their own † 1.1915, and not spoil what they came to take pos∣session of. So Quintius, when Philip spoi∣led Thessaly with a running Army, exhor∣ted his soldiers, as † 1.1916 Plutareh saith, to march as through a Country granted them, and now becom their own. * 1.1917 Craesus perswading Cyrus, not to give up Ly∣dia to be pillaged by his men, tells him, You will not spoil my City; not my Goods: For they are not mine now. They are yours, and the plundering soldiers prey upon you * 1.1918. Thirdly, it will be so, if the enemy can have elswhere where∣with to support himself: to wit, if the Sea, or another Country be open to him. Ar∣chidamus in Thucydides in his oration wherein he dehorteth his Laecedemonius from a war upon the Athonians, asketh what hopes they have. Do you hope easily to lay wast the Attick fields by your 〈◊〉〈◊〉
Army? Suppose you do: Yet have they, both other Lands under their com∣mand (Thracia & Ionia) and the Sea brings them in all things necessary. Wher∣fore in such a case it is best, that agricul∣ture also in the very frontiers be secured. Which we have lately seen was long done in the Low Countrey Wars, on condition of paying Contribution to both sides. And that is consentaneous to the old custom of the Indians, among whom, as Diodorus Siculus saith, The Husbandmen are un∣toucht, * 1.1919 and as it were sacred; yea, nigh to the Camps and Troops, they do their work without danger. He addes, They neither burn the Enemies fields, nor cut up the trees. After: No Soldier doth any wrong to any Husbandman; but that kind of men, labouring for the common good, is protected from all injuries. And, between Cyrus and the Assyrian was an Agree∣ment, saith Xenophon, That they should have Peace with the Plough-man, war with the Soldier. So Timotheus † 1.1920 let out to Husbandmen the most fruitful part of the land, as Polyaenus saith: Yea, as A∣ristotle addes, he sold the fruits themselves to the enemy, and paid his soldiers with the money. Which Appian testifies was done in Spain by Viriatus. And the very
same, in the Belgic war now mention'd, we have seen done with very great reason and advantage, to the admiration of stran∣gers. These manners, the Canons * 1.1921 be∣ing teachers of humanity do propose to the imitation of all Christians, as those that owe and profess more humanity than other men: and therefore will have not husbandmen only, but also the plowing catell and the seed which they carry to the field, plac'd without the danger of war: upon such like ground, as the Ci∣vil Laws * 1.1922 forbid the instruments of hus∣bandry to be taken for a pledge; and a∣mong the Phrygians and Cyprians of old, afterward among the Atticks and Ro∣mans * 1.1923, to kill the plowing Oxe was a heinous matter. Fourthly, it happens that some things be of that nature, that they have no moment to make or con∣tinue war: which things reason will have spared, even while the war lasts. 〈◊〉〈◊〉 belongs that speech of the Rhodians to Demetrius * 1.1924 the Town-taker, for the pi∣cture of Jalysus, exprest by Gellius afte•…•… this manner: † 1.1925 What madness is it for 〈◊〉〈◊〉 to destroy that image by firing of the houses? for if you overcome us and take the town, the Image also safe and 〈◊〉〈◊〉 will be the reward of your victory: but •…•…f you besiege us in vain, pray consider 〈◊〉〈◊〉 dishonourable it will be for you, because you cannot conquer the Rhodians, to 〈◊〉〈◊〉 your spight against a * 1.1926 dead Painter. •…•…∣lybius
saith, it is the part of a raving mind to spoil things, which diminish not the enemies strength when they are spoild, nor add any emolument to the spoiler, such as are Temples, Galleries, Statues, and the like. Marcellus spared all the Houses of the Syracusians both publick & private, sacred and profane, as if he had come thither with an Army not to con∣quer, but to defend them. Cicero speaks it * 1.1927 to his praise; and the same Cicero, after: Our Ancestors left unto the Conquered, what seemed pleasing to them, light to us.
NOw, as this hath place in other or∣naments for the reason above men∣tiond, so a special reason is added in things dedicate to holy uses. For, although these things also, as hath been said, are after their manner publick, and therefore by the Law of Nations are impunely viola∣ted; yet, if no danger may come thence, the reverence of things Divine requires * 1.1928, that
such buildings and the things perteining to them be conserved; specially among them, who worship the same God ac∣cording to the same Law, though per∣chance in some opinions and ritos they differ * 1.1929. Thucydides saith, it was the Law among the Greeks of his time, that the Invaders of their Enemies should ab∣stein from holy places. Alba being over∣thrown by the Romans, Livy saith, they spared the Temples of the Gods † 1.1930. Against Q. Fulvins the Censor, Livy * 1.1931 re∣lates, it was * said: He enga ged the peo∣ple of Rome in sacrilege by the ruins of Temples, as if the immortal Gods one not the same every where, but some one to be worshipped and adorned with the spoils of others. But Marcius Philippus * 1.1932 when he came to Dium to encampe unde the walls of the Temple, gave comm•…•… that nothing should be violated in the •…•…∣ly
place. Strabo * 1.1933 relates, that the Te∣ctosages, who with others had taken a∣way the Delphic treasure, to paecify the God at home dedicated the same with an addicament. That we may come to Chri∣stians, Agathias commemorates, that * 1.1934 the Franks, being of the same Religion with the Greeks, spared their Temples. Yea, and men were usually spared for the Temples sake: which (not to allege the many examples of profane Nations, this being the common custom * 1.1935 among the Greeks) S. Augustin thus commends in the Gotths † 1.1936 that took Rome: Witness the places of the Martyrs, and the Royal structures of the Apostles, which in that Vastation entertain'd the Conquered, their own and altens, flying to them. 〈◊〉〈◊〉 did the bloody enemy rage: here his juri∣ous slaughter was bounded: 〈◊〉〈◊〉 were led by the compassionat enemies, they that had been spared other where, that they might not fall into their hands that had not the like compassion. Who yet, though elswhere cruelly raging, after they came to these places * 1.1937, where that was forbidden which had been permitted elswhere by the Law of War, all the immanity of their rage was refrained, and their desire of taking Captives cooled. What I have said of Sa∣cred places, is likewise to be understood of Religious, even of those that are built for the honour of the dead. For also these, though the Law of Nations indulgeth im∣punity
to anger exercised therein, cannot be violated without contempt of Humani∣ty. Greatest is that reason, say the Law∣yers, * 1.1938 which makes for Religion. Euripides hath a pious sentence, as well for Reli∣gious as sacred places:
Who Cities, Sepulchers and Temples wast, Are Fools, and ruinate themselves at last.Apollonius Tyanaeus did thus interp•…•… the Fable of the Giants oppugning hea∣ven: They offerd force to the Temples and seats of the Gods. Statius accuseth Anni∣bal of sacrilege, who set fire on the Altars of the Gods. Scipio having taken Carthage rewarded his Soldiers with gifts, These excepted, who had injur'd the Temple of Apollo * 1.1939. Caesar, as Dion * 1.1940 saith, durst not take away the Trophy raised by Mi∣thridates, being sacred to the Gods of War. His Religion would not suffer Marcus Marcellus to touch the things that vi∣ctory had profan'd, saith Cicero: and be * 1.1941 addes, There are some enemies, who i•…•… war retein the rights of Religion and of customs. The same elswhere saith, the 〈◊〉〈◊〉 of Brennus against Apollo's Temple wa•…•… nefarious. The deed of Pyrrhus, who had robbed the Treasury of Proserpine, Livy calls a foul deed and done in c•…•…∣tempt of the Gods. Such another acti
Hamilco is call'd impiety and sin against the Gods, by Diodorus. The war of Philip the now cited Livy calls nefarious * 1.1942 too, as waged against the Gods both a∣bove and below; wickedness also, and madness. Florus of the same: Philip, be∣yond the right of victory, spar'd neither Temples, Altars, nor Sepulchers * 1.1943. Poly∣bius touching the s me story, addes his judgment thus: To spoil things which will neither be profitable to us for war, nor hurtful to our enemies, Temples especially, and Images, and the like ornaments in them, is undeniably the work of a mind mischievous and madded with anger. And in the same place he admits not the ex∣cuse of Talion, or rendring like for like.
ALthough it be not properly a part of our design here to inquire what is useful, but to restrain the loosness of war∣ring to that which is lawful by Nature, or among things lawful is better; yet will Vertue herself, vile in this evil Age, be pleasd to excuse me, if, seeing she is con∣temned by herself, I add esteem to her from the Consideration of profit. First then, that Moderation in preserving things which do not retard the war, deprives the Enemy of a mighty weapon, desperation. It is Archidanius's saying in Thucydides, Think the Enemies Country no other than
a hostage, and so much the better, as it is more fertile; wherefore also spare it as much as is possible, lest despair make them more hard to be conquerd. The same was * 1.1944 the Counsil of Agesilaus, when, against the opinion of the Achaians, he left the Acarnans a free seeding time, saying, the more they sowed, the more desirous would they be of Peace. The Satyrist to our purpose * 1.1945:
—After such harms, And losses suffer'd, what remains but Arms?Livy speaking of the City taken by the Galls: It pleased (saith he) the Chief of the Galls, that all the houses should not be fired: that the remainder of the City might be a means to soften and bow the heart of the enemy. Add, that this Moderation, while the war continues, maketh shew of great confidence of the victory: and that clemency is apt of it self to move and win the mind. Annibal in Livy makes no spoil in the fields of Tarentum: It appea∣red * 1.1946 (saith he) 'twas not done out of the modesty either of the Soldiers or of the Captain, but to gain the affections of the Tarentines. For like cause Augustus C•…•…∣sar in Pannonta absteind from rapine. Dion tells us, why: He had hope by 〈◊〉〈◊〉 * 1.1947 means to win them without violence. To motheus, by that care of his aforem•…•…∣tion'd,
beside other things, armed at the good will of his Enemies; as Polybius ob∣serveth. * 1.1948 Of Quintius, and the Romans with him, Plutarch, when he had rela∣ted * 1.1949 what we have said of him above, ad∣deth; They had the fruit of this Modera∣tion a little after; For they were no sooner come into Thessaly, but the Cities yielded to him: and the Greeks inhabiting between Thermopilae wished for him with ardent de∣sires: but the Achaians renouncing the friendship of Philip associated themselves to the Romans against him. Of the City of the Lingones, which in the war waged against Civilis the Batavian and his fel∣lows, by the conduct of Cerealis, under the Authority of Domitian, had escaped a feared spoil, Frontinus saith: Because, * 1.1950 beyond expectation, it was inviolate and lost nothing, being reduced to obedience it gave him seventy thousand armed men. Contrary Counsels have also contrary events. Livy gives us an example in * 1.1951 Annibal: His mind Precipitous to ava∣rice and cruelty, carryed him to the spoil of what he could not keep himself, that the enemy might not enjoy it. That policy was dishonorable and disprofitable to him, both at the beginning and the end; For, not only the minds of them that sufferd unworthy things were alienated from him, but of others too; for the example reached * 1.1952 •…•…nto more than the calamity did. Surely, it is most true, which is noted by
some Divines, that it is the office both of the Highest powers, and of Captains, who will be accounted Christians, both in the judgment of God and men, to supersede the violent direptions and spoiling of Ci∣ties, and all like violences, as those that cannot pass without the calamity of ma∣ny Innocent persons, and oft-times little avail to the main of the War: So that Christian Goodness almost always, •…•…ven Justice it self for the most pare abhors them. Greater certainly is the bond of Christians to one another, than that of the Grecians was: by whose wars, that no City of Greece should be destroy'd, was provided by a Decree of the Amphi∣ctyons. And the Antients deliver, that Alexander of Macedonia never did re∣pent him more of any thing he had done, than of the overthow and ruine of Thebes.
NEither ought the Capture of hostile Goods in a just War be judged with∣out sin, or free from the charge of restitu∣tion. For, if you look upon what is done rightly * 1.1954, it is not lawful to take or have farther than the enemy is indebted: ex∣cept, that also for necessary security things may be detein'd; but, to be restored in themselves or the price, after the hazard
is past. Now, the Goods of subjects may be taken, not only for the obteining of the primary debt, whence the war began, but of a debt arising after it, according to what we said in the beginning of this part. And so is it to be understood, which some Divines write; Things taken in war * 1.1955 are not equalled with the Principal debt: that is, there must be also satisfaction made, according to a true Judgment, for that damage that was done in the war it self. So, in the disceptation with An∣tiochus, the Romans, as Livy * 1.1956 relates, judged it equal, that the King, by whose fault the war was raised, should pay all the cost † 1.1957. Tis in Justin * 1.1958, To bear the charge of the war, by a just Law. In Thu∣cydides the Samians are condemned to pay the expences of War. And elswhere often. Now, that which is justly imposed upon the Conquered, is also by a war extorted from them justly. But yet we must know, as we have mention'd afore, the rules of Charity are of larger compass than the rules of Law: He that has a flourishing estate will be guilty, if he thrust his needy deb∣tor out of all he hath, that himself may be paid to the utmost farthing; and much more, if that same debtor came into that debt through his own goodness, as, if he hath been Surety for his friend, and him∣self hath converted none of the mony to his own use. For, as Quintilian's Fa∣ther * 1.1959 saith, a Sureties danger is to com∣miserated.
And yet, so hard a Creditor doth nothing against right strictly taken. Wherefore Humanity requires, that to those who are without fault of the war, and who are bound no otherwise than as sureties, such things be left, as we can want more easily than they: especially, if it be evident, that they shall not reco∣ver * 1.1960 from their Commonwealth, what they have in that manner lost * 1.1961. Hither perteins that saying of Cyrus to his Soldiers, after he had taken Babylon: It will not be un∣just for you to possess what you have gotten, but it will be your Humanity to leave something to the enemyes. This is also to be noted, seeing this right over the goods of innocent Subjects is introduced for re∣lief, so long as there is hope we shall get our own easily enough from the princi∣pal debtors, or from them who, by not doing right, do of their own accord make themselves debtors, that while, to come unto them who are without Fault (though it be granted not repugnant to strict right) doth depart from the rule of hu∣manity. Examples of this humanity are frequent in history, especially in the Ro∣man; as, when Lands were given to the Conquered on condition they should come into the Commonwealth: or, when a small part of the Lands for honor sake was left to the old Possessor * 1.1962. So, Livy
saith, the Veientes were mulcted a part of their lands by Romulus: So Alexander the Macedonian † 1.1963 gave the Uxians the Lands they had been masters of, for Tri∣bute: So you shal often read of Cities de∣liverd up and not spoiled: and above we have said, not the persons only but the goods of the Inhabitants, are com∣mendably and according to the pious pre∣script of the Canons, spared, at least un∣der tribute; and under the like tribute, is wont also to be granted unto wares, im∣munity from war.
WHere Captivity of men, and Ser∣vitude * 1.1965 is in use, if we respect in∣ternal justice, 'tis to be limited first after the likeness of things, viz. that such ac∣quist may be lawful so far as the quanti∣tity of the debt, either primary or secon∣dary, doth admit: except perhaps in men themselves be some peculiar fault, which equity will bear to be punisht with the loss of liberty. Hitherto then, and no far∣ther, He that wageth a just war hath a right over his enemies subjects being taken, and doth validly transfer it upon others. But, it will be the part of equity and goodness here also to apply those dif∣ferences, which were noted above, when we spake of killing. Demosthenes in his
Epistle for the Children of Lycurgus praiseth Philip of Macedon, that he ha•…•… not made all that had been among his enemies, to be servants † 1.1966. For, saith he, he did not think it meet to deal with 〈◊〉〈◊〉 alike, but judged of every one according to his merit. But first we must note, the right which springs as 'twere from suretyship for a City, is not so large as that, which springs from a fault, against them who are made servants by way of punishment. Whence a Spartan said, He was a Cap∣tive, not a Servant * 1.1967. For, if we look rightly into the matter this general right over Captives in a just war, is like to that right, which Masters have over them, who, being compeld by poverty, have sold themselves into servitude: except, that their calamity, is the more to be pityed, who come not into that condition by any special fact of their own, but by the fault of Governours. 'Tis a most sad thing, saith Isocrates, to be made a prisoner of War. This servitude then, is a perpetual obliga∣tion to work for maintenance likewise perpetual. Chrysippus his definition is ve∣ry fit for this kind of servants: * 1.1968 A ser∣vant is a perpetual mercenary. And him, who hath sold himself being compeld by poverty, the Hebrew Law plainly com∣pares to a mercenary: and in his redemp∣tion, it will have his work so profit him,
as fruits received of a field sold should pro∣fac the old possessor. Much difference ther∣fore there is 'twixt what is done impune∣ly against a servant by the Law of Na∣tions, and what natural reason suffers to be done. That of Philemon tendeth to this.
He that is born a man, although He serve, is stil a man, I trow.Seneca: They are servants, yea Men: * 1.1969 they are servants, yea our Compauions: they are servants, yea our friends: they are ser∣vants, yea our fellow-servants. Which al∣so you may read in Macrobius, agreeing in sense with that of S. Paul; Masters, * 1.1970 give unto your servants that which is just and equal, knowing that ye also have a Master in Heaven. And in another place, he would have Masters forbear threat∣ning, upon the same argument, knowing * 1.1971 that their Master also is in heaven, who regardeth not such differences of qualities. In the Constitutions ascribed * 1.1972 to Clemens Romanus we read, Thou shalt not be imperious over thy man-servant or thy maid-servant in bitterness of mind * 1.1973. Clemens Alexandrinus † 1.1974 would have us use our servants as our other selves, seeing they are men as well as we; following the sentence of the Hebrew wise-man, If thou hast a servant, use him as a brother, for he is such a one as thy self. The right therefore which is called of life and death
over a servant gives the Master a dome∣stick Jurisdiction, but such as must be exer∣cised with the same religious care, as the publick is exercised. This was Seneca's * 1.1975 meaning when he said, In a bondman is to be considered, not how much may be in∣flicted on him impunely, but how much e∣quity permits, which commands us to spare even Caprives and those whom •…•…e have bought with money. And again, * 1.1976 What matter is it, under what command one is, if it be the highest? Where he compares a subject to a servant, and saith, under a divers title the same is lawful over them: which in respect of taking a∣way the life and of what is pertaining to it, is most true. Our Ancestors, saith the same Seneca, judged our House to be a * 1.1977 little Commonwealth: and Pliny, The house is unto servants a certain Common∣wealth, and as it were a City. Cato Cen∣sorius, as Plutarch relates, if any servant seemed to have committed a capital crime, did not punish him, till after he was con∣demned by the judgment also of his fel∣low-servants. Wherewith may be com∣par'd the words of Job, 31. 13. &c. A∣bout the lesser punishments too, namely stripes and beating of servants, equity, yea and clemency is to be used. Thou shalt not * 1.1978 oppress him, thou shalt not rule hardly over him, saith the Divine Law of an He∣brew servant, which, the force of neigh∣bourhood being now enlarged, ought 〈◊〉〈◊〉
be extended to all servants: Deut. 15. 17, 45, 53. Upon which place Philo: Ser∣vants * 1.1979 are indeed inferior in fortune, but in •…•…ature equal to their Masters: now, to the Divine Law that is the rule of justice, •…•…ot which agrees to fortune but to nature. Therefore it becomes not Masters to use their power over servants frowardly, nor to make it matter for their pride and insolence and cruelty. For these are signes of an ill disposed and tyrannical mind. Seneca: what is more foolish than to be furious against men, and yet use dogs and horses gently? Hence in the Hebrew Law, to a servant * 1.1980 man or maid, not for an eye only, but a tooth injuriously struck out, liberty was due * 1.1981, Moreover, work is to be exacted of them moderately * 1.1982, and a human respect is to be had to the health of servants. Which very thing, beside other, the He∣brew Law provides for, in the institution of the Sabbath: viz. that some brea∣thing space might be allowed Labourers. Seneca observes in the word, Paterfami∣lias, the humanity of the antients. Do you not see, how our Elders have taken off all envy from Masters, all contumely from servants? They named the Master the Father of the family, the servant fa∣miliars * 1.1983. The like piety hath Ser∣vius
† 1.1984 noted in they word pueri, Children, by which they signified servants. For th•…•… work, as we have said, maintenance i•…•… due to servants. Cato: Provide well for the family; cloaths against cold, food ag•…•… hunger. There is somewhat, saith S•…•…ae∣ca † 1.1985, which a Master ought to afford his servant, as food and apparoll * 1.1986. The cruel∣ty of the Sicilians † 1.1987, who famished the Athenian Captives, is condemn'd by the historians. Farther, Seneca in the same place proves, a servant is free in some respect, and has wherewith to do a be∣nefit, if he hath done, what exceeds the measure of servile duty, what is done not upon command but voluntarily, where service is turn'd into the affection of a friend, which he explains at large. Where∣to agrees, if a servant (as it is in Tere•…•…ce) * 1.1988 defrauding his Genius hath saved any thing, or by his diligence at spare tim•…•… hath gotten any thing, that in some sc•…•… is his own * 1.1989. Nor is it material, that the Master may, at his pleasure, take away or diminish his servants stock; for, he w•…•… not do what is right, if he do it with•…•… cause; by Cause I understand not only punishment, but the necessity of the Ma∣ster; for the profit of the servant is subor∣dinate to the profit or interest of the Ma∣ster; yea, more than the wealth of a Ci∣tizen to the City. Therefore, as we read that Clients have contributed to the user their Patrons, and subjects of their Kin•…•…
so have servants to the uses of their Ma∣sters * 1.1990; if a daughter be to be preferred, if a Captive son to be redeemed, or if any like occasion had fallen out. Pliny, as him∣self saith in his Epistles, granted leave to his servants to make certain testaments as it were, that is, to divide, to give, to be∣queath within the family. Among some Nations a fuller right of getting an estate was granted unto servants, as there were several degrees of servitude. To this inter∣nal justice which we expound, the Laws, among many Nations, have also reduced that external right of Masters. For among the Greeks, it was lawful for servants ill used * 1.1991, to demand that they might be sold; and at Rome, to fly unto the statues, and implore help of the Governors against ri∣gour, or hunger, or intolerable injury. But, 'twill proceed not from strict right, but from humanity and beneficence (yet * 1.1992 such as is due sometimes) that after long service and very great, Liberty be given to a servant. After that by the Law of Na∣tions servitude came in, there followed the benefit of manumission, saith Ulpianus. An example whereof, we have in that of Terence:
Thou wast my servant: and I made thee free, Because thou didst thy service * 1.1993 Li∣berally.Salvian * 1.1994 saith, it is a thing of daily use, that servants, though not of the best, yet
of honest diligence, be set at liberty; He addes: and be not for bidden to carry with them out of their masters house, what they gained in their service. Of which benig∣nity there are many examples in the Mar∣tyrologies. And here also is to be praised * 1.1995 the benignity of the Hebrew Law, that commands an Hebrew servant, after a cer∣tain time fulfill'd, to be manumitted; and, not without gifts * 1.1996; of the contempt of which Law, the Prophets make a heavy complaint. Plutarch reprehends Ca•…•…o ma∣jor, because, when his servants were aged, he sold them, unmindful of that common nature of mankind. A question here is in∣cident, * 1.1997 whether it be lawful for him to fly, who is taken Captive in a just war. (We speak not of him, who by his own proper fault hath deserv'd that punish∣ment, but of one that by publick action is fallen into this fortune.) It is the truer answer, that it is not lawful: because, by the common agreement of Nations, he owes his service in the Name of the Com∣monwealth. Which yet is so to be under∣stood, unless intolerable cruel usage im∣pose upon him this necessity. Another doubt is, whether, and how far, they that are born of servants are under Domi∣nion by internal right: a doubt, which * 1.1998 may not be omitted here, by reason of the special consideration of Captires in war. If the parents by any crime 〈◊〉〈◊〉 theirs had deeserv'd the punishment 〈◊〉〈◊〉
death, their Children which they hoped for, might, to save their lives, be bound over to servitude: because otherwise they would never be born. (For, even for mainte∣nance, which they would otherwise want, parents may sell their Children.) Such is the right, which God alloweth the He∣brews over the posterity of the Canaa∣nites. * 1.1999 But, for the debt of the Common∣wealth, they which were already born, as a part of the Commonwealth, might be bound, no less than the Parents them∣selves. Howbeit, as to them who are not yet born, this cause seemeth not suffi∣cient, but another is required: either from Parents express consent together with a necessity of maintenance, and that for ever; or from the allowance of mainte∣nance, and that only till the work hath paid for all that was layd out. If any fur∣ther right is given the Master over these, •…•…t seemeth to proceed out of the Civil Law, favouring Masters more than is enough. Among the Nations, with whom that Law of servitude by war is not in use, it will be best, that Captives should be exchanged; next, that they should be dismissed at a reasonable rate. What this •…•…s, cannot precisely be determined; but Humanity teacheth, it ought not be so heightned, but that the residue of the Captives estate may supply him with all Necessaries. In some places, this is defi∣ned by Covenants and Customs; as, a∣mong
the Greeks of old Mina * 1.2000, now among Soldiers a months pay goes for a ransome. Plutarch relates, that hereto∣fore wars were waged between the Corin∣thians and Megareans mildly, and so as became men of the same blood. If anyone were taken, he was entertained by the Taker, as a Guest, and sent home upon promise of a price for his deliverance. That of Pyrrhus † 1.2001 commended by C•…•…ro, argues a more noble mind:
Nec mî aurum posco, nec mî pretium dederitis: Ferro non auro vitam cernamus utr•…•…∣que. Quorum fortuna belli fortuna pep•…•…r∣cit, Eorundam libertati me parcere cert•…•… est.Apud Ciceronem de Offic.
No gold for me, no price do I re∣quire: To fight it out with steel is my de∣sire. The valiant men, to whom good for∣tune gave Their life, by my gift Liberty shall have.Pyrrhus, no doubt, believed his 〈◊〉〈◊〉 just: nevertheless, he thought fit to sp•…•… their liberty, who on probal•…•… •…•…ause 〈◊〉〈◊〉
engag'd against him. The like act of Cyrus * 1.2002 •…•…s celebrated by Xenophon, of Philip the Macedonian after his victory in Chaeronea by Polybius, of Alexander toward the * 1.2003 Scythians by Curtius, of Ptolomy the King and of Demetrius, contending with one another not more in war than in be∣nignity toward Captives, by Plutarch. And Dromichaetes King of the Getes, having taken Lysimachus * 1.2004 in war, made him his guest, and prevalid on him so far, that having experience both of the Getick poverty and courtesy, he chose rather to have such men for his friends than ene∣mies.
THat Equity which is requir'd, or that * 1.2006 Humanity which is commended, to∣ward particular persons, is so much more requir'd or commended toward Nations or the parts of Nations, by how much more signal is the injury and the bene∣nefit done to many. By a just war, as other things may be acquired, so also the right of a Ruler over people, and the right which the people themselves have in the empire: but (to be sure) so far as the measure either of the punishment ari∣sing from the fault, or the measure of some other debt will bear. To which is to be added the cause of avoiding extreme dan∣ger.
But this cause for the most part is mixed with other, which yet is it self most considerable, both in constituting peace, and in using victory. For the rest happly may be remitted out of compassion: but in publick danger, to be secure beyond measure is unmercifulness. Isocrates writes to Philip: The Barbarians are so far to be subdued, as it shall be sufficient to secure your own Countrey. Crispus Sallustins, of * 1.2007 the old Romans: Our Ancestors, being most religious men, took nothing from the Conquerd, but the licence to do injury. A sentence worthy to be spoken by a Christian: wherewith agrees that of the same Author, Wise men wage war for the sake of Peace, and sustein labour in h•…•…e of ease. Aristotle said more than once, * 1.2008 War is ordaind for peace, and business f•…•… rest. Cicero's meaning is the same, whose most pious saying 'tis: War must be u•…•…∣dertaken, that nothing else but peace be * 1.2009 aimed at. And another like it; For the * 1.2010 cause are wars to be waged, that we m•…•… without injury live in peace. Nothing de∣ferent are these fron what the Doctors ci true Religion teach us, That the end 〈◊〉〈◊〉 war is to remove things that trouble 〈◊〉〈◊〉 Peace. Before the times of Ninus, as we have noted out of Trogus, it was the man∣ner to defend * 1.2011 the bounds of Empire, rather than to enlarge them; Every King was contented to reign in his own Cour∣trey; they did not so much seek their ow•…•…
power, as their peoples glory: being sa∣tisfied with victory, they refused Empire. To which moderation S. Augustin ear∣nestly * 1.2012 recalls us, when he saith, Let them consider, lest perhaps it be not the part of good men, to rejoice † 1.2013 in their Empires latitude. He addeth: Tis greater felicity to have a good neighbour for ones friend, than to subdue an evil neighbour that is an enemy. And the Prophet Amos, in the Ammonites themselves, severely re∣prehends this desire of extending domi∣nion by War. To this exemplar of an∣tient innocence, the prudent modesty of the Romans made the neerest approach. What were our Empire at this day, saith Seneca, unless wholsom providence had mixed the conquerd with the Conquerours? * 1.2014 Our Founder Romulus (they are Claudius's words in Tacitus) was of so prevailing * 1.2015 wisedom, that he made many people Citi∣zens, the same day, they had been his ene∣mies: He adds, that nothing else undid the Lademonians & Athenians, but their kee∣ping off the conquered, as Aliens. Livy saith, the State of Rome was advanced by receiving their enemies into the City. In histories are extant, examples of the Sabins, Albans, Latins, and the rest of Italy: till at last, Caesartriumph'd over the Galls, and enfranchiz'd them. Cerialis in Tacitus, in his Oration to the Galls: Ye your selves for the most part command our Legions; ye govern these and other Pro∣vinces;
Nothing is separate and shut from you. And then; Wherefore, Love and embrace that Peace and life, which yo•…•… the conquerd and we the Conquerours en∣joy with equal right. At length, which is * 1.2016 most to be admir'd, They that are in the Roman world, by the constitution of the Emperour Marcus Antonius, are made Roman Citizens; which are the words of Ulpian. After that time, as Modestinu•…•… saith, Rome is the Common Countrey, Claudian * 1.2017;
We all owe this to his pacifick mind: One Nation hath united all Mankind.Another kind of moderate victory, is, to leave unto the Conquerd, either Kings or People, the Empire which they had, So Hercules dealt with Priamus * 1.2018; and having overcome Neleus he committed the Kingdom † 1.2019 to his son Nestor. So the Persian Kings left the Kingdom to the Kings they had conquerd † 1.2020. So Cyrus to the Armenian. So Alexander to Porus * 1.2021, Seneca commends it: To take nothing from the Conquerd King, but Glory. And Poly∣bius celebrates the goodness of Antigonus, who having Sparta in his power, left them the Commonwealth and liberty of their Ancestors, Whereby he obteined great praises thorough Greece, as it is there rela∣ted. * 1.2022
So the Cappadocians were permitted by the Romans, to use what form of Com∣monwealth they would; and many States, after war, have been left free. Carthage is free and enjoyes her own Laws, say the * 1.2023 Rhodians to the Romans, after the second Punick War. Pompey, saith Appian, left some of the subdued Nations free * 1.2024. And * 1.2025 to the Aetolians, saying, there could be no firm peace, unless Philip the Macedo∣nian were driven out his Kingdom, Quin∣tius answerd, That they had given their opinion, unmindful of the Romans custom to spare the Conquerd, adding: The Grea∣ter the Conqueror is, the more gentle mind * 1.2026 he beareth toward the conquerd. Some∣time, together with the concession of Em∣pire, provision is made for the conquerors security. So 'twas decreed by Quintius * 1.2027, that Corinth should be rendred to the Athaians, and a Garrison be put in the Fort; that Chalcis and Demetrias should be deteind, till they were quitted of the care of Antiochus. Imposition of Tri∣bute also perteineth oft, not so much to the restitution of charges, as to the security both of the Conquerour and Conquered. Cicero, of the Greeks: Al∣so, * 1.2028 let Asia consider, she had no way to a∣void the calamity, both of forein war, and discord at home, but by adhering to this Empire: and seeing this Empire can∣not be maintaind without Tribute, Let her be content to buy a firm and lasting peace
with some part of her revenues. Petili•…•… * 1.2029 Cerialis in Tacitus, speaks for the Romans to the Lingones and other Galls, after this manner: We, though so often provok'd, by the right of Victory, have only laid this up∣on you, that was necessary to preserve peace. For, neither can the quiet of Na∣tions be procured without arms, nor arms without stipends, nor stipends without tri∣butes. Pertinent here are other things al∣so, which we have said afore, when we spake of an unequal league; to deliver up arms * 1.2030, ships, not to have any weapons, not to have an Army. But, that their Empire may be left unto the Conquered, is not only a point of humanity, but of∣tentimes of Counsil. Among the institutes of Numa, this is praised, that he sacrific'd * 1.2031 to Terminus without blood, signifying, there is nothing more profitable to a safe peace, than to keep within ones own bounds. Florus excellently: It is more hard to keep, than to make Provinces; they are got by force, they are kept by Ju∣stice * 1.2032. The Embassadors of Darius to Alexander: A forein Empire is ful of dan∣ger: 'tis difficult to keep that which is too great: 'tis more easy to conquer some coun∣tries, than to hold them: much more rea∣dily do our hands receive, than retein. Appian observes, that many people who desir'd to put themselves under the Roman power, were refus'd by them: and others had Kings by their appointment. In the
jugment of Scipio Africanus, in his time, Rome possessed so much, that 'twas greedi∣ness to desire more, being abundantly hap∣py, if she lost nothing of what she had already. Wherefore, that form of prayer, whereby the Gods were entreated to ad∣vance the State of Rome, he amended * 1.2033, praying that they would be pleased, but to preserve it, as it was. The Lacedemonians, and (at first) the Athenians, challenged to themselves no Empire over the Cities they had taken: only, they required them to use a form of Government accommo∣date to theirs, the Lacedemonians under the power of the Chief, the Athenians at pleasure of the people; as Thucydides, Isocrates, Demosthenes declare: and Ari∣stotle too, in his fourth De repub. The like was done, as Tacitus relates, by Arta∣banus * 1.2034 at Sel•…•…ucia: He committed the common people to the Chief men, accor∣ding to his own use: for a popular Govern∣ment is free, the domination of a few more neer to royalty. But, whether such Changes make for the Conquerors security, is not of our inspection. If it be less safe to ab∣stein from all Empire over the Conque∣red, the matter may be temper'd so, that some part of the government may be left to them or their Kings. Tacitus calls it a custom of the Roman people, to have * 1.2035 Kings also for instruments of servitude † 1.2036.
So, among the Jews, the Scepter rem•…•…∣ned in the Sanedrin, also after the cons•…•…∣cation of Archelaus. Evagor as King of Cyprus, as 'tis in Diodorus, said He would give obedience to the Persian, but as a King to a King. And Alexander se∣veral times offerd to Darius † 1.2037 b•…•…g overcome, this condition; that he should rule over others, and be subject unto Alexander. We have spoken of mixed Empire elswhere * 1.2038. To some, one part of the Kingdom hath been left, as a part of their Lands to the old Possessors. A∣gain, when all Empire is taken from the Conquerd, there may be left them, about private affairs, and publick to of less moment, their own Laws * 1.2039 and cu∣stoms, and their own Magistrats. So, in Bithynia, a proconsular Province, the City Apamaea had the privilege to ad∣minister the Commonwealth their own way † 1.2040, as Pliny tells us in his Episttes; and in other places the Bithynian; had their own Magistrats, their own Senate. And so in Pontus, the Amisen's City used their own Laws, by the favour of Lu∣cullus. The Gobths also left to the Ro∣mans the Roman Laws. A part of this indulgence is, not to deprive the Con∣querd, against their perswasion, of the use of their old Religion * 1.2041. Which as ve∣ry grateful to the Conquerd, so to the
Conqueror it is not hurtful, as Agrippa proves in his Oration to Caius, related by Philo in his Embassy. And in Jose∣phus, both Josophus himself, and Titus the Emperor object to the rebells of Je∣rusalem, that by the indulgence of the Romans, they had so much privilege in their own Religion, as to keep out A∣liens from the Temple, even at the peril of their lives. But, if the Conquer'd have a false Religion, it will belong to the Conquerors care, that the True be not opprest: which was the care of Con∣stantin, when he had broken the party of Licinius, and after him of the French and other Kings. The last Caution is, that even in the fullest and (as 'twere) herile Empire, the Conquered be us'd with Clemency, and so that their Inte∣rest be taken in with the Interest of the Conquerour. Cyrus bade the overcom * 1.2042 Assyrians be of good cheer: They should be in as good case as they had been, their King only changed; They should have their Houses, Lands, Wives and Chil∣dren, as in times past: and if any one should injure them, He and His would right them. In Sallust we read; The peo∣ple of Rome conceived it better to get friends, than servants; and they thought it safer to rule over willing men, than for∣ced. The Britains, in the times of Taci∣tus * 1.2043 did cheerfully come to the musters, and pay tribute, and perform offices in∣join'd
them, if they were not injur'd: Injuries they could not endure, being sub∣dued into obedience, not yet to servitude. That man of Privern, being asked in the * 1.2044 Roman Senat, what peace the Romans could expect from them, answerd: If you grant us a good Peace, faithful and firm: if an evil Peace, not lasting. He adds a reason: Believe it, no people, no man will abide, longer than he must needs, in that condition that is not pleasing. So Camillus * 1.2045 said; It is the firmest Empire, wherewith the subjects are best contented. Hermo∣crates in Diodorus: It is not so honorable * 1.2046 to overcome, as to use the victory with gentleness and moderation † 1.2047.
THings gotten by unjust War are to be restored, as we have said above; and not onely by those that took them, but also by others to whom the things by any means are come. For, no man can transfer upon another more right than he had himself, say the Authors of * 1.2048 the Roman Law; which Seneca briefly explains, No man can give what he hath 〈◊〉〈◊〉. He had not dominion internal, who was first Taker: wherefore, neither will he have it, who derives his title from him; the second then, or the third Pos∣sessor, hath received that dominion, which we call external; that is, this benefit, that every where he is by judi∣ciary authority and power to be main∣tained as the Owner: which yet, if he use against him, from whom the things were by injustice taken away, he will do dishonestly. Such things therefore are to be rendred to those from whom they were taken away: which, we see, hath been oft times done. Livy, when he had * 1.2049 related how the Volsci and Aequi were conquer'd by L. Lucretius Tricipitinus, saith, the spoyl was expos'd in Campus Martius, that every one for the space of three daies might know and receive his
own. The same Historian, when he ha•…•… shewed, that the Volsci were overthrow•…•… by Posthumius the Dictator, Part of 〈◊〉〈◊〉 spoyl (saith he) was restored to the La∣tins and Hernicians, knowing their 〈◊〉〈◊〉 goods; part the Dictator sold sub has•…•…, Elswhere: Two daies were given the Owners to find out their Goods. Polybi•…•… * 1.2050 saith of L. Aemilius, Conquerour of the Galls: He rendred the prey to those from whom 'twas taken. That Scipto did the * 1.2051 same, Plutarch and Appian testifie, when, having taken Carthage, he had found ma∣ny Donatives there, which the Cartha∣ginians had brought thither out of Cities of Sicily and other places. This act of Sci∣pio's is expressed at large by Cicero. The * 1.2052 Rhodians restored to the A•…•…henians for Ships of theirs, which they had recovered from the Macedonians. Goods also, i•…•… former times consecrated at Ephes•…•…, * 1.2053 which the Kings had appropriated, the Romans reduced into their antient sla•…•… But, what if such a thing hath passed 〈◊〉〈◊〉 any one in the way of Commerce, 〈◊〉〈◊〉 he charge the first owner with the pri•…•… he paid for't? It seems he may, so far 〈◊〉〈◊〉 the recovery of his desperate possessi•…•… was valuable to him, who had lost the thing. And if such cost may be requir'd why may not also the estimation of la∣bour and hazard, just as if one by di•…•… had brought up something of anot•…•… man's lost in the Sea? Apposite to 〈◊〉〈◊〉
question, methinks, is the historie of Abraham, when being Conquerour of the five Kings, he return'd to Sodom, He * 1.2054 brought back (saith Moses) all the goods, viz: which the Kings had taken: appo∣site is the condition which the King of Sodom offers to Abraham, Give me the * 1.2055 persons, and take the goods to thy self, viz. for his pains and danger. But A∣braham, a man not onely of a pious, but a noble mind * 1.2056, would take nothing for himself, save onely of the goods (for of them is this narration) as by his own right, he gave a tenth to God, he detract∣ed necessary charges, and was pleased some portion should be alotted to his partners in the action. Now, as Goods are to be rendred to the Owner, so also people † 1.2057 and their parts, are to be re∣stored to those who had right of Govern∣ment; or to themselves, if they were in their own power before the unjust force. So, we learn out of Livy * 1.2058, that Sutri∣um was regained and restored in the time of Camillus. The Aeginetes and Meli∣ans had their Towns restored to them by the Lacedemonians; the Grecian Cities, invaded by the Macedonians, were freed •…•…y, Flaminius. The same Flaminius also.
in a Conference with the Embassa∣dours of Antiochus, thought it fit, the Cities of Asia, which were of the Gre∣cian name (which Seleucus the Ancestor of Antiochus had taken by war, Antio∣chus had recover'd being lost) should be freed: For, said he, the Colonies 〈◊〉〈◊〉 not sent into Aeolis and Ionia, to be i•…•… servitude under the King; but to the end their Race might be increased, and the most antient Nation propag•…•…d through the world. There is also a que∣stion made of the space of time, wherein the internal obligation of restoring a thing may be extinguished. But this que∣stion, between Citizens of the same Em∣pire, is to be determined out of their Laws (if they grant an internal right, and do not consist onely in the external; which is to be gathered out of the words and purpose of the Laws by prudent in∣spection:) and, among them that are foreiners to each other, by sole conjecture of dereliction, of which elswhere. Lastly, * 1.2059 if the right of War be very ambiguous, 'twill be best to follow the counsel of A∣ratus Steyonius * 1.2060, who partly perswaded the new Possessors to accept of money rather, and yield the Possessions; par•…•… perswaded the former Owners to th•…•… it more commodious to have a just pr•…•… for it, than to recover what they h•…•… lost.
IT might seem superfluous to speak of them, who have nothing to do with War, seeing it is manifest there is no right of War over these: Yet because by oc∣casion of the VVar, many things are wont to be done against these, borderers especially, on pretence of necessity, we must here repeat what we have said a∣fore, * 1.2062 that Necessity ought to be extreme, that it may give a right over what be∣longs to another man: 'tis requir'd moreover, that the Owner himself be not in equal necessity: and, where the ne∣cessity is manifest, no more is to be taken than the necessity exacteth; that is, if the custody suffices, the use of the thing is not to be taken; if the use, not the a∣buse: if the abuse be necessary, yet is the price of the thing to be restored. Moses, when the highest necessity ur∣ged him and the people, to pass through the Land of the Idumaeans, first he saith, he would pass along the high way, and not divert into their Corn-fields or Vine∣yards: if he had need but of their water, he would pay a price for it. The worthy Captains, both Greek and Roman, have done the like. In Xenophon, the Greeks with Clearchus promise the Persians to
march away without any damage to the Countrey; and if they might have ne∣cessaries for money, they would take no∣thing by force. Dereyllides in the same Xenophan, led his Army through peace∣able places without any detriment to 〈◊〉〈◊〉 friends. Livy of King Perseus: Through Phthiotis, Achaia, and Thessalia, with•…•… doing any harm in the fields through which he passed, he returned into his Kingdome. Plutarch of the Army of Agis the Spartan: They were a spectacle to the Cities, marching through Pelo∣ponnesus fairly, and without hurt, 〈◊〉〈◊〉 almost without noyse * 1.2063. Velleius reports the like of Sulla: Cicero of Pompey † 1.2064 Frontinus of Domitian: Lampridius of the Parthick Expedition of Alexander Severus. Concerning the Gotths * 1.2065, Hunnes, Alans, that served Theodosius, the Panegyrist: No tumult, no co•…•…∣on, no pillaging, as Barbarians use: b•…•…t if at any time he had scarsity, he patienth endured want, and by parsimony enlarged the provision, which was streighten'd by number. Claudian † 1.2066 gives the same praise to Stil•…•…, and Said•…•… to Belisari∣us * 1.2067. This was effected by the ex•…•…
care to provide † 1.2068 Necessaries, and by good Pay, and strict Discipline, which Ammian tels us of, That none should tread upon the Lands of quiet men. And Vopiscus * 1.2069: Let no Souldier steal a Click, touch a Sheep, pluck a Grape, exact Oil, Salt, Wood. And Cassiodore: Let them live in the Province, in a civil manner: nor let their Arms make them over-bold, because the Shields of our Army ought to save the Romans from all trouble. Adde to these that of Xenephon * 1.2070: A friendly City's not to be compell'd to give any thing against their will. Out of these Sayings you may best interpret that Advice of the great Prophet, yea one greater than a * 1.2071 Prophet: Do violence to no man, neither accuse any man falsly, but be content with your wages * 1.2072. Parallel is that of Aurelian, in Vopiscus now c•…•…ted: Let the Souldier be content with his provision: let him live of the spoyl of the Enemy, not of the tears of the Province. Nor has any one reason to think these things are well
spoken, but cannot be performed, For, neither would that divine man have gi∣ven such a charge, nor wise Law-givers have requir'd it, if it had been in their conceit impossible. Besides, we must ne∣cessarily grant it may be done, which we see has been done † 1.2073. Therefore have we brought examples: whereunto this emi∣nent one is worthy to be added, which Frontinus * 1.2074 mentions out of Sca•…•…: That a Fruit-bearing Tree, enclosed within the bounds of the Camp, the next day after the Armies removal was found ungather'd. Livy, when he had related the ill deportment of the Roman Soul∣diers in the Camp at Sucron, and that some of them went abroad by night pil∣laging the quiet people of the Countrey, addeth, All this was done by the lust and licence of the Souldier, nothing by Mi∣litary Discipline. In one of Cicero's Ora∣tions * 1.2075 against Verres: Thy care hath bee•…•… to pillage and vex the Towns of our peace∣able friends. I cannot here omit the opi∣nion of Divines, which I think most true: That a King, who pays not his Souldiers * 1.2076 duely, is not onely bound to the Soul∣diers for the losses following thence, but also to his Subjects and Neighbours, whom the needy Souldiers have plun∣dered and abused. On the other side, it is the duty of those that abstain fro•…•… VVar, to do nothing for the strengthen∣ing of him who maintains a bad Cause;
or, whereby the motions of him, that wageth a just VVar, may be retarded. And in a doubtfull case, they ought to shew themselves equal * 1.2077 to both, in per∣mitting passage, in affording provision for the Legions, in not relieving the be∣sieged. The Corcyreans in Thucydides say, It is the duty of the Athenians, if they would not side with any party, ei∣ther to prohibite the Corinthians from raising Souldiers out of Attica, or permit them to do the same. It was objected by the Romans against Philip King of the Macedonians, that the League was vio∣lated by him two waies, both because he did injuries to the fellows of the Roman people, and because he assisted the Ene∣my with aids and money. The same things are urged by Titus Quintius in his Conference with Nabis: Yet, thou sayst, I have not properly violated you, and your friendship and society. How often shall I prove the contrary? In short, Wherein is friendship violated? By these two things especially: If thou hast my friends for enemies: if thou art a friend to my enemies. In Agathias we read, He is an * 1.2078 enemy, who doth what pleaseth an ene∣my. And in Procopius, He is reckoned * 1.2079 in the Enemies Army, who supplyeth them with what is properly usefull for the VVar * 1.2080. L. Aemilius Praetor * 1.2081 ac∣cused
the Teians for victualling the Ene∣mies Navy, and promising them Wine; adding, unless they would do the like for the Navy of the Romans, he would ac∣count them for his Enemies. Augustus * 1.2082 said: The City that receives my Enemy, is become my Enemy. It will be also pro∣fitable to mingle League with both sides waging war, so that, with the good will of both, it may be lawfull to abstain from war, and exhibit the common offi∣ces of humanity to both. 'Tis in Livy: Let them, as becomes neutral friends, * 1.2083 desire peace, not interpose themselves in the war. Archidamus King of Sparta, when the Eleans seemed to encline to the Arcadians party, wrote an Epistle to them containing onely this: * 1.2084 It is good to be quiet.
WHat we have hitherto said, most part, concerns them, who either have command in chief, or execute pub∣lick orders. We must also see, what is lawfull privately in War, by the Law of Nature, of God, or of Nations. Cicero * 1.2086 relates, that the Son of Cato Censorius served in the Army of General Pom∣pilius, and when, after the dismission of that Legion wherein he served, the Young Man, in love with war, had re∣mained
in the Army, Cato wrote unto Pompilius, that if he would have him stay, he should give him an oath the se∣cond time; adding this reason, because being dis-engaged from the first, he could not justly fight with the Enemy. Cicero setteth down the very words of Cato to his Son, whereby he admonisheth him, not to enter into Battel; for it is not lawfull, saith he, for one to fight the Enemy, that is no Souldier. So also we read the praise of Chrysantas, one of * 1.2087 Cyrus's Souldiers, who being upon his Enemy, withdrew his Sword, hearing a retreat sounded. Seneca saith: He is call'd an unprofitable Souldier, who hears * 1.2088 not the sign given for a retreat. But they are deceiv'd, who think this comes from the external Law of Nations: for if you regard that, as it is lawfull for every man to seize upon the Enemies goods, so also to kill the Enemy; for by that Law the Enemies are of no account. Wherefore, that which Cato advised, comes from the Military Discipline of the Romans: wherein it was a Law, noted by Mo∣destinus, * 1.2089 that whosoever obeyed not his Orders, should be punisht with death, though the matter succeeded well. Now, he also was suppos'd not to have obey∣ed, who out of order, without the com∣mand of the General, entred into any fight, as the Manlian commands do * 1.2090
teach us. For truly, if that were lawfull, either stations would be deserted, or (li∣cense proceeding) the Army, or part thereof, would be engaged in unadvised Battels * 1.2091, which by all means is to be avoyded. Therefore Sallust, when he describes the Roman Discipline, saith, In war they have been often punished, who against Authority had fought against the Enemy, and who being recall'd made 〈◊〉〈◊〉 hast out of the Battel. A certain Laco∣nian, when, being upon his Enemy, and hearing the sign of retreat, he had re∣pressed the blow, gave the reason thus: It is better to obey my Commander, than to kill my Enemy. And Plutarch saith, They that are disbanded cannot kill the Enemy, because they are not bound by Military Laws, wherewith they ought to be bound that are to fight. And Epi∣ctetus in Arrian relating the now∣mention'd * 1.2092 fact of Chrysant as, addeth, So much did he prefer the execution of his Commanders will before his own. Nevertheless, if we respect natural and internal right, it seems granted to every man, in a just War, to do those things, which he is confident will, within the just measure of warring, be advantageous to the innocent party: not also to ap∣propriate to himself things taken, for no∣thing is owing to him; unless perchance he exact punishment by the common
right of men. Which last, how it is re∣strain'd by the Gospel-law, may be un∣derstood by what we have said afore. * 1.2093 Now, a mandate may be either general, or special. General, as in a tumult a∣mong the Romans, the Consul said, Whosoever would have the Common-wealth * 1.2094 safe, fallow me. Yea, and to all particular Subjects is sometimes granted a right of killing, besides in the way of self-defence, when 'tis publickly expedi∣ent. Special mandate, not onely they may have that receive Pay, but they * 1.2095 also that go to war at their own charge, and that (which is more) administer at their charge a part of the VVar: as they that provide Ships, and maintain them by their own expences; to whom, in∣stead of Pay, is wont to be granted leave to keep what they can take. And how far that may go, without viola∣tion of internal justice and charity, is not without cause enquir'd. Justice ei∣ther respects the Enemy, or the Com∣mon-wealth it self wherewith one has contracted, From the Enemy, we have said, may be taken away the possession of all things which may feed the VVar; and this, for security sake, on condition to restore it: and the dominion too may be taken away, so far as to the com∣pensation of that, which, either from the beginning of the war, or by what
fell out after, is owing to him that •…•…∣geth a just war; whether the things be∣long to the hostile Common-wealth, or to particular men, and those in them∣selves innocent: but the goods of the no∣cent, even by way of punishment, may be taken away and possessed by the Takers. So then, hostile goods will become theirs, who administer part of the war at their own charge, so far (as to the Enemies) that the measure I have expressed be not exceeded; and this is to be determin'd by an equal judgement. But, as to the Common-wealth, the same will be just by internal justice, if there be equality in the contract; that is, if the charges and the dangers be as great, as the pro∣bability of the prey. For, if this hope be of much more value, the overplus must be rendred to the Common-wealth; just as if one had, at too cheap a rate, bought a Cast, uncertain indeed, but easy, and of great hope. Yet further, when Justice strictly so call'd is not of∣fended, there may be a transgression from that office which consisteth in the love 〈◊〉〈◊〉 others, especially such as the Christian Law prescribeth: as, if it appear that such predation will chiefly hurt; not the generality of the Enemies, nor the King, nor those that are in themselves nocent, but the innocent; and that so much, that it will cast them into very
great calamities; into which, to cast even them that are privately indebted to us, were unmercifulness. But, if more∣over that depredation be not of much * 1.2096 moment, neither to end the war, nor to weaken the Enemy; in such a case, an honest man, especially a Christian, ought to think it an unworthy gain, which is made onely of the infelicity of the times † 1.2097. Sometimes also it happens, that, by occasion of publick war, private war ariseth, viz. if one chance to fall among ones Enemies, and come into hazard of life or goods: in which case, the same things are to be observ'd, which we have elswhere said of the law∣full manner of self-defence. There is wont also to be joyn'd with private utility, publick authority: viz. if one, * 1.2098 upon great damage receiv'd from the Ene∣my obtain a right to recompence his losses out of the Enemies goods: which right is to be defined by what we have said above, of Reprizals. But, if any Soul∣dier or other, even in a just war, hath fir'd the Enemies houses, wasted their fields, and done other damages of the like sort, without command, and when their was no necessity, nor just cause; it is rightly deliver'd by Divines, that he * 1.2099 is bound to repair the damages. Justly have I added, what they omitted, with∣out cause: for, if there be cause, he will
be bound perhaps to the Common-wealth, whose Laws he hath trans∣gressed, not to the Enemy, whom he hath not wronged. Not impertinent is that which a Carthaginian gave in an∣swer to the Romans, when they requir'd Annibal to be yielded to them: Whether Saguntum was set upon by private or publick counsel, is not the question: but, whether justly or unjustly. For, we have this controversy with our Citi∣zen, By what authority he did it; our onely question with you, is, Whether it was against the League or no.
AS when I treated of undertaking War, I annexed some Admonitions about declining War, as much as is pos∣sible: So will I now also, before I dismiss the Reader, adde a few Advisoes, which are useful both in war and after war, •…•…on∣ding to the care of Faith and Peace; and first of Faith, both for other reasons, and for this especially, that the hope of Peace may not be lost. For, by Faith, not only every Commonwealth is conserved, as Cicero saith, but also that greater society of * 1.2100 Nations. This being taken away as Ari∣stotle * 1.2101 truly, Commerce is taken away from among men. Therefore the same Cicero saith, It is a wicked thing, to break ones Faith, without which there is no life. It is (as Seneca speaks) the most sacred thing * 1.2102 that is seated in the breast of Man. And this Faith is so much more religiously to be kept by the supreme Rulers of the world, by how much more they are exemp∣ted from the punishment of their sins here, than other men. Take away Faith, * 1.2103 they will be like unto wild beasts, whose violence all are afraid of. And Justice tru∣ly, in its other parts, hath oft-times somewhat of obscurity: but the bond of Faith is manifest by it self, yea is therfore
used that all obscurities may be cleared. The more are Kings to embrace it; First, for Conscience sake, and then for their Credit sake and Reputation, upon which depends the Authority of their govern∣ment. Wherefore, let them be assured, that such as instill into them the arts of deceiving, do that very thing which they teach. That doctrin cannot long be pro∣fitable, which maketh man insociable with man; add also, odious to God. Next, in the whole administration of War, the mind cannot be kept serene and confident in God, unless it always make a prospect toward Peace. For it is most truly said by * 1.2104 Sallust: Wise men make war, to obt•…•…in Peace. Wherewith agrees that sentence of S. Augustin: Peace is not sought, th•…•… * 1.2105 war may be exercis'd; but War is waged, that Peace may be acquir'd. Aristotle * 1.2106 himself, more than once, accuses the Na∣tions, that proposed to themselves actions of War, as their ultimate end. Force is a thing that belongs to wild beasts: an•…•… this, in War, is most eminent: the m•…•… diligent care must be us'd, to temper 〈◊〉〈◊〉 with humanity, lest by too neer imi•…•…∣tion of those beasts, we forget that 〈◊〉〈◊〉 are men, and lose the softness of our na∣ture † 1.2107. If then a safe Peace may be had
it is well worth the forgiveness of injuries, and losses, and charges: especially among Christians, to whom their Master hath bequeath'd his Peace. Whose best Inter∣preter * 1.2108 will have us, as far as is possible, and as much as in us syeth, live peaceably with all men. It is the property of a good man, as we read in Sallust, to begin war with an unwilling mind, and to prosecute it no farther than he needs must. This one consideration may be enough, but for the most part also mens Interest and pro∣fit carryes them to this end: first them, who are inferiour in strength; because long strife with one more mighty is full of dan∣ger; And, as on shipboard, a greater calamity is to be redeemed with some loss; leaving off anger and hope, deceitful coun∣sellers, as Livy rightly call'd them. This sense is thus exprest by Aristotle: Better it is, to yield some of our goods to those that are more potent, than to contend with them and lose all * 1.2109. And as to the more potent, Peace is for their Interest too: because, while their affairs are prosperous (as the now-cited Livy saith no less tru∣ly) Peace is honorable to those that give it; and better and safer than the victory hoped for. For the Common Chances of
War must be considered. So saith Ari∣stotle, We must think how many and 〈◊〉〈◊〉 unexpected alterations do happen in war. And in Diodorus, in a certain Oration for Peace, they are censur'd, who glory in the greatness of their actions, as if it were not Fortunes custom, to dispense her fa∣vours, and successes, by turnes. And be∣sides, there is one thing more, which may be feared most, the Boldness of desperate men, like unto the fiercest biting of dying beasts † 1.2110. But, if both Parties seem to themselves equal, that indeed, in Casa•…•… judgment, is the best time to treat 〈◊〉〈◊〉 peace. 〈◊〉〈◊〉 est they have Both some con∣fidence in their own strength. And, whe•…•… Peace is made, on whatsoever terms, it is by all means to be preserved by reason 〈◊〉〈◊〉 that sanctimony of Faith aforesaid: and with all care must be avoided, not only perfidiousness, but also whatever exasp•…•… rates the mind. For, what Cicero said 〈◊〉〈◊〉 private, you may apply as well to the•…•… publick friendships, As they are all to 〈◊〉〈◊〉 maintained with exact fidelity and Re•…•…∣gion, so those especially which after c•…•…∣mities are made up again and restored.
GOd (who alone can do it) inscribe these things in their hearts, who have the Affairs of Chri∣stendom in their hands; and grant them a Mind intelligent of Divine and Human Right, and ever remembring that she is ele∣cted by God to govern man, a creature most dear unto himself † 1.2111.
Philo. 2. de leg. special. Hestes non soli existimantur qui 〈◊〉〈◊〉 Navdi aut T•…•…rrestri praelio decertant, sed pro ta∣libus habendi et qui machinas admovent portubus aut manibus, eti∣•…•…st nondum pugnam incipiunt Se•…•…v. ad illud primae Ae 〈◊〉〈◊〉 Nec bello major et armis. Bellum et Consilium habet: arma tantum in actu ipsi sunt.
For exam∣ple, Zaleucus made a law inflicting pu∣nishment up∣on him, that against his Physicians Precept, drank Wine.
Philo. Lex mentiri nescia est •…•…ecta ratio, quae lex, non ab hoc aut illo mortali morta∣lis, non in Char∣tis aut 〈◊〉〈◊〉 exanimis oxa•…•…ima, sed cocumpt nescia, quipye ab im∣mortali natura insculptain im∣mortali intel∣lectu. Tertul. Quaeres igitur Legim Dei, ha∣bens communim illam in publico mundi, in natu∣ralibus rabulis. Vid. Chiysost. 12. et 13. de star. Thom. se∣cund 57. 2. & Sco•…•…. 3. 37.
Furtum natura turpe Ulpian. Nam∣que odit iose vim Deus: nec
divites nos esse rapto, sed pro∣be partu cupit. Eurip. H•…•….
In equis, in leonibus jusli•…•…i∣am non di•…•…imus. C c Offic. 1.
Pliny notes a likeness of Ju∣stice in Ele∣phants. 〈◊〉〈◊〉 8. and he speaks of an Asp that kild her own young one, because that young one had kild the mans son that enter∣tained her. l. 10. c. 74. Sen. Muta animalia, ai•…•…, humanis aff•…•…cti-bus carent: habent autem similes illis quosdam imp•…•….
Argumentum veritatis est ali∣quid omnibus videri. Sen.
Non 〈◊〉〈◊〉 penitus est vana est senten•…•…a, multi quam po∣puli celebrant. Hesiod. Tertul. Quod apud multos unum invenitur, non est erratum sed traditum.
Justin coll cum Tryph. Exceptis illis qui ab impuris spiritibus abrenti & per malam educationem, instituta prava & le•…•…es iniquas corrupti naturales notiones perdiderunt.
* A∣rist•…•…t. Polit. 1. 5.
Iasqu. 2. controv. 54. 4.
Anaxarchi apud Plut. in Alex.
Deut. 4. 7. Ps. 147.
These pious men of the Gentiles, as Maimonides often faith, shall be par∣takers of fu∣ture happi∣ness.
Antiqu. 22. 2.
Tryphon Justino sic air. Si in illa Philo∣sophandi ratio∣ne mansisses erat tibi reliqua spes aliqua status 〈◊〉〈◊〉. Gal. 5. 3.
Justin. coll. cum Tryph. 〈◊〉〈◊〉 qui circum•…•… po∣pulo se aggrega∣vit par est in∣digenae.
P•…•…. 19. Rom. 7.
Chrysost. de Virgin. 94. Major 〈◊〉〈◊〉 vi•…•…tus ostenden da est, qu•…•…a multa nuno spiritus essusa est gratia, & ingens donum est Christi ad∣ventus. & v. Iren. l. 4. c. 26. Heb. 7. 19. 8. 7. Rom. 10 5. Gal. 3. 25.
V Iren. l. 4. c. 34. & Chrys. ad Eph. 11. 10.
Ex. l. 1. c. 2.
Dente lupus, cornu taurus petit; unde nist intu•…•… monstra∣tum? Hor.
* De usu part 1.
De part. a∣nim. 4. 10.
* Cassiodor. de anima. Et quoniam neque cornu, neque dente, neque fuga (sicut alia animalia) cor∣poris humani formase praeva∣let vindicare, robustus illi thorax, brachi∣aque concessa sunt: ut illa∣tam insurtam mann defende∣ret, & objectu corporis quasi quodam clipeo vindicare•…•….
De offic. 3.
Epist. Fam. 12. 3. L. 1. Sect. Vim vi. D de vi & vi arma•…•….
Armaque in armatos sumere jura sinunt. Ovid. Caius Juriscons. Adversus periculum natura•…•… ratio permittit se defendere.
Gen. 14. 〈◊〉〈◊〉.
Exod. 17.
Deut. 20. 10. 15.
Jud. 11.
2 Sam. 10.
Heb. 11. 33. 14.
1 Sam. 25. 28.
Gen. 9. 5, 6.
Quae fecit st quisque ferat, jus fiet & aequum.
Gen. 4. 14.
Euripides. Quam bene parenium pro∣vida aetas statuerat: ut cogeretur de vita decedere Hominumque vi∣su caede patrata nocens, Fuga{que} lueret triste non letho seelus.
Histd. 3.
Servius ad 1 Ae•…•…. Luetts, 〈◊〉〈◊〉, Et hic sermo 〈◊〉〈◊〉 pe∣cunia descen∣dit; antiquo 〈◊〉〈◊〉 enim 〈◊〉〈◊〉 om∣nes pecuniariae fuerunt.
O•…•… rather [if he had committed the like: for the words bear this sense.
Adhuc enim vi∣debatur nesas, quamvis malos, lamen homines, 〈◊〉〈◊〉 capi∣•…•… affi 〈◊〉〈◊〉. La∣ctant. l 2. Gen 4. 24.
Josephus. Edico ut à cae∣de humana pu∣rae habeaniur manus; quod si quis eadem com∣miserit, poena•…•… scrat.
Exod. 17. 9.
Gen. 38. 24.
Chap. 31. 2.
As Levit. 18. 24, &c. Psal 104. 5. Prov. 20. 8.
Num. 25. 31, 33.
Spectat huc illud Hicrony∣mi: Aliae sunt leges Caesarts, aliae Christi; a∣liud Papinianus, aliud Paulus noster praecipit.
1 John 3. 16.
ocus est, ad Zenam 〈◊〉〈◊〉 idem∣que sensus apud Originem in ex∣cerptis illis quae Philocatia di∣cuntur.
Mat. 5, &c.
Ex. 20. 13. Lev. 21. 21.
Ex 20. 14.
Deut. 24. 1.
Ex. 20. 7.
Lev. 24. 20.
Lev. 19. 18.
In hos odium lege permitti ait illustrissimus Aba' baniel ad Deut. 23. 21. Ex. 34 11. Deut. 7 1. Ex. 27. 19.
Heb. 2. 2.
Heb. 7. 16. Rom. 3. 27.
Rom. 7. 14. Ps. 19.
Egregius im∣primis Chry∣sostom. locus de Virgin. cap. 44. Olim tanta nobis in∣juncta non eral virtutis mensura, sed & vindictam sumere de inju∣riam inferente, &c. At post Christi adventum multo arctior facta 〈◊〉〈◊〉 via. E d. l. 3. c 83. Non eadem virtutis mensura à nobis & ab illis exigitur. Idem in orat. filium Patri esse aequalem, ait, in Evan∣gelio esse, P•…•…aeceptorum & intensionem & adjectionem.
1 Tim. 2. 1, 2, 3.
Sen. Ep. 73. Philosophiae fideliter dedi∣to•…•…, falso ait contemtores magist atuum ac •…•…gum exi∣stimari. E con∣trario ait, nul∣li adversus il∣los gratiores sunt: nec immerito; nullis enim plus praestant, quam, quibus s•…•…ui tranquillo otio licet. D'gna est, quae legitur, Epistola, ubi & hoc: Hujus pacis beneficium, ad omnes 〈◊〉〈◊〉, al•…•…us ad eos p•…•…venit qui illa b•…•…ne utuntur.
Nisi hic in∣terpretari ma∣lis, Christianum vitae exitum. Gr. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Rom. 13. 4.
Acts 4. 25. 13. 33. Heb. 5. 5.
Cont. Cres∣con. Gram. l. 3
Ad Bonifac. Epist. 50.
Rom. 13.
Acts 13. 2.
Est Edessa in Osroene No∣men Abea•…•…i fre∣quens illis locis. App•…•…et ex nummis, Taci∣to, Appiano. Dione, tum in pridem editis, tum in novis Excerptis, Ca∣pitolino.
Acts 26.
Bene hoc ex∣sequitur ad hunc locum E∣pist. ad Rom. Chrysostomus.
Luke 3. 14.
Mat. 3. 2. 4. 17.
Mat. 11. 12.
Mar. 1. 4. Acts 2. 38.
Mat. 3. 8. 10.
Luke 3. 2.
Mat. 11. 13.
Mar. 10. 1. Luke 1. 77. Mat 11. 9. Luke 7. 26. Luke 2. 77. Luke 3. 18.
Acts 19. 4. John 1. 29. Mat. 3 2. Mar. 1. 8. Luke 3. 16.
Chrysost. in Serm. ad pat. sidelem. Propter hos sunt judicia & leges & supplicia totque poenarum modi.
Acts 24. 3.
Mat. 5. 17.
Acts 19. 19.
Utitur hujus loci autorita∣te Concil. A∣fric. Quorum contra furorem possumu•…•… non insolita nec à scripturis aliena impetrare praesi∣dia, quando Apostolus Pau∣lus, sicut in A∣postolorum Act. fidelibus notum est, factiosorum conspirationem militari etiam submovit auxilio. Augustin. Epist. 154. ad Pub•…•… Neque si in illa arma scelerati homines incidissent, Paulus in 〈◊〉〈◊〉 sanguinis suum crimen agnosceret.
Acts 23.
2. Tim. 4. 2.
Rom. 13.
Hist. 4.
Augustin. con∣tra Faust. l. 22. c. 74. Ad hoc tributa praesta∣mus, ut propter necessaria militi stipendium prae beatur.
Acts 2. 5. 11. So also Acts 28. 18. For there was no cause of death in me. C. 2. 19. 20.
Justin Apol. 2. Ut autem puniantur, qui non convenien∣ter praeceptis il∣lis vivunt, & nomine solo sunt Christiani, & quidem à vo∣bis, & nos op∣ta•…•….
Eph. 2. 14.
Phil. 4. 8. 1 Cor. 11. 13, 14.
Id de pace quae orbi con∣tigit beneficio Romani Im∣perii interpre∣tatur Chrylost. oratione Chri∣stum esse De∣um: Neque vero praedictum tantum est, sta∣bilem fore, im∣motam, atque inconcussam banc religionem, sed cum ea ad∣venturam orbi pacem, desituras illas in singulis civitatibus plurium potentias, regnaque ipsa, & unum fore super omnes imperium, ac cjus pleraque pacem habitura, contra quam ante fiebat, &c. & vid. Euseb. 〈◊〉〈◊〉 praepar. l. 1. c. 10.
Es. 2. 4.
Lactant: Quid fiet, si omnes in con∣cordiam consen serint? Quod certe fieri pote∣rit, si pernicioso & impio furo∣re projecto inno∣centes as justi esse velint. Justin. de Christianis. Non pugnamus in hostes. Pla∣nè ut de Esse∣nis Philo in Orat. Omnem bonum effe liberum: Nullum inter 〈◊〉〈◊〉 reperias qui aut sacula, aut sagittas, aut gladium, aut galeam, out 〈◊〉〈◊〉 cam, aut scutum fabricet; Nullum qui aut arma conficiat aut 〈◊〉〈◊〉 nas. Simile est quod Chrysostomus ait ad 1 Cor. 13. 3. Si•…•… inter bomines qualis oportet dilectio, nullas fore poenas capitales.
Mat. 5. 38, 39.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ut & Lucas in Stephani oratio∣ne: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Id ita ex∣ponit Cypri∣anus de pati∣entia: Ut tuae oblata non re∣petas. Irenaeus l. 4. c. 27. Tol∣lenti tibi tuni∣cam, remitte ei & pallium, sed non quasi nolen∣tes fraudari contristemur; sed quasi volen∣tes donaveri∣mus, gaudea∣mus. Et si quis te, inquit, an∣gariaverit mille passus, vade cum eo alia duo, ut non quasi servus sequaris, sed quasi liber plaecedas. Etiam Libanius, qui Evangelia legerat, laudat non litigantes de chlamyde & tunica, in orat. de custodia reorum.
Philostrat. 2. 15.
L. Item. si S. 1. & D. de al. en. jud. mut. cau∣sa facta.
L. 1. c. 45.
Justi•…•…us A∣p•…•…get. 2. Quae dicit, huc pertinent, ut ad∣versus ownes s•…•…nus pttieates, 〈◊〉〈◊〉, mini∣me tracundi.
Just. Apol. eod. De com∣m•…•…icandi ve∣•…•…ò facultatib. nostris eam e∣gentibus, & ne∣quid ad gl•…•…iam aucupandam saciamus, hoe & dixit: Omni pe enti date, &c. Alioi, Com∣munico•…•… •…•…∣stra omni •…•…genli. 1 Tim 5. 8. 2 Cor. 8. 13.
Sen. de be∣nefic. 2. Dabo egenti, sed ut ipse non egoam. Chrysost. in loc. Deus pro sacultote poscit, quatenus habet quis, non quatenus non habet. Q100 ut secte intelligatur accedant sequentia: Laudat quidem quod facultates exsuperat (nempe in Thessalonicensibus:) sed hos (Achaeos sc.) non cogit idem facere.
Si membrum vupit, talio esto.
Vid. Chry∣sostomum di∣cto jam loco.
Es. 30. 6. Jer. 3. 3. Praebere o•…•… contumelios. Taci•…•…. & Te∣rentius.
Chrys 7. ad Rom. Haec e∣gregia victoria, plus illi largiri quam velit, & fines improbae in illo lubidinis liberalitate propriae patientiae transcen∣dere.
Idem de statuis 1. Contumelia non ab inferentis animo, sed ex judicio eorum qui patiuntur aut fit aut perit.
Mat. 5. 43. 44.
Cui par pro∣selytus.
Levit. 19. 17, 18.
Tertul. adv. Mareion. 4. Secundus gra∣dus bo ita•…•… est in extraneos: in proximos pri∣mus. Hiero∣nym. adv. Pe∣lag. dialo∣go 1. Praecep∣tum est mihi ut diligam inimi∣cos, & orem pro persecutori∣bus. Nunquid iustum est ut itae diligam, quast p•…•…oximos & consanguineus; ut inter aemu∣lum & necessa∣rium nulla di∣stinctio sit.
Vid. Prov. 24. 11.
Sen. de Clem. 1. Tam omnibus ignos∣cere, crudelitas est, quam nulli: Chrys. 1. ad Cor. 3. 12. &c. de paenis hum. agens: Non ex saevitia, sed, ex bonitate ta∣lia faciunt ho∣mines. Augu∣stin: sicut est aliquando mi∣sericordia pu∣nicns, ita & crudelitas parcens. Valentinianus, Theodosius & Arcadius, in lege tertia, Cod. Theod de defensorib. Civit. Removeantur patrocinia, quae favorē reis & auxiliū sacinovosis impertinendo, matura∣ri scelera faciunt. Totilas apud Procop. Got. 2. Peccare & prohibere poenas peccantium in pari pono. Joh. 4. 2. Exod. 34 6. Num. 14. 18. Rom. 2. 8.
Vide hac de re Cyrillum lib. 5. cont. Julian.
Rom. 13. 4.
Mat. 21. 44. 22. 7. Luke 19. 12, 14, 27. Chrysost. ad Rom. 14. nar∣ratis malis ierosoly mo rum Christū esse qui haec secerit, audi ipsum prae∣ci•…•…entem, tum per parabolas, tum apertè & exsertè.
Chryso•…•… 1 Cor. 4. 21. Interficiam, mutilabo? Est enim ut lenitatis, 〈◊〉〈◊〉 severitaus spiritus. Vide & Augustin. de serm. Dom. in mo•…•… lib. 1. & alios quoscitat Gratian. 23. 8.
1 Cor. 4. 21. 1 Cor. 5. 〈◊〉〈◊〉 1 Tim. 1. 20.
Rom. 12. 17, 18. &c.
Tertul. de pat. Quid mi∣bi cum ultione, cujus modum regere non pos∣sum per impa∣tientiā dol•…•…ris?
August. Epist. 154. Hinc au∣tem dictum est, non resistamu•…•… malo, ne nos vindicta dele∣ctet, quae alieno malo •…•…aimum pascit.
Exod. 23. 4. 〈◊〉〈◊〉.
2 Cor. 10. 3, 〈◊〉〈◊〉.
Chrysosto∣mus hoc loco intelligit, opes, gloriam, poten∣tiam, eloquen∣tiam, solertiā, •…•…sationes, as∣•…•…tationes, sal∣lacias.
Eph. 6. 11.
Iam. 4. 1.
Antiq. l. 18. cap. 12. & lib. seq.
Divitis hoc •…•…tium est auri. nec bello suc•…•…, Fagious asta bat•…•… •…•…phus ante dapes. T•…•…bul. Lucan 〈◊〉〈◊〉 O prodigia 〈◊◊〉〈◊◊〉, nun∣quam 〈◊〉〈◊〉 con•…•… pa•…•… tu. &c. Cic. de fi•…•… 1. Ex ca∣pioitalibus odia, dissilia, discordiae, seditiones, bella nascuntur. Mar•…•…, Tyr us. Nunc omnia bellis plena: ubique enim oberrant cupiditat•…•…, & per omnes terras excitant appetitum rerum alienarum. Dioge•…•… dictum huc pertinet: Non enim ex his qui polentam edunt, 〈◊〉〈◊〉 sures existunt, aut bellorum auctores. Hicronymus adversus Jo∣vinianum 2. Diogenes tyrannos & sub•…•…rsores urbium bellaqut 〈◊〉〈◊〉 hostilia, vel civilia, non pro simplici victu olerum pomorunique, 〈◊〉〈◊〉 pro carn um & •…•…pularum deliciis asserit oxcitari. Polybius: 〈◊〉〈◊〉 mus necessariis contentus, also ad saptendum Magistro non eget.
Idem Ter∣tul. de anima. Quis non prae∣serat saeculi •…•…u∣stitiam, quam & Apostolus non seustra gla∣dio accinctum accinctum, que pro homine saeviendo religiosa est? Et ad Procons. Scapula: Non te terremus, qui nec time•…•…us. Sed velim ut omnes salvos sacere pos∣simus, monendo 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Potes & officio jurisdictionis tue fan∣gi, & humanitatis meminisse, vel quia & vos sub gladio estis.
Distinctio∣nem quam hic de militia af∣fert, alibi ad nuptias appli∣cat, tum lib. de Monoga∣mia, tum ex∣hortatione ca∣stitatis.
Tertul. de idolatria. Ad ecclesiam non admittun∣tur, qui artes exercent, quas Dei disciplina non recipit. Aug. de fid. & op. Meretrices & histriones & quilibet alii publica turpi∣tudinis professo∣res, nisi solutus aut diruptis ta∣tibus vinculis, ad Christi sacramenta non permittuntur accedere. De histrione exem∣plum vide apud Cyprianum Ep. 65.
O militem in Deo gloriosam!
Joseph. 11. Historiae ant quae.
Lib. de Idol.
Lib. de cor. mi∣luis.
Concil. Carth. 4. E∣piscopus nec provocatus de rebus tran•…•… litiget. Ad•…•… A bros l. 2. Off. c. 21. & Grego•…•…. M. l. 2. Ind. 11. E∣pist. 58.
Vid•…•…tur scrip•…•…usis li∣ber fin ente sae•…•…ulo secun∣do.
L. 7. c. 3.
L. 8. C. 22.
C. 42. C. 37.
Vide & Xi∣philinum de hac historia.
Adde mili∣tem quendam à Cornelio Baptizatum, cujus apud A∣donē mentito.
Cujus aspe∣rita••em miti∣gavit Adrianus Imp. ut apud Spart••anum est. Asperis Romanorum legibus addi possunt quae servum nisi tortum testi∣monium dice∣re vetant.
Tit. de iis qui par. vel lib. occide∣runt.
Zonaras: Clementem se os•…•…ndebat iis qui pravam vi∣t•…•…m deseruerant, quod diceret ab∣scindendum membrum agro∣tans ac putri∣dum, ne sana contagio cor∣rumpat, non id quod aut sana∣tum jam sit, tue 〈◊〉〈◊〉. Vide & Eusebium. S. cut de nimia Constantini Christianos, ita de 〈◊〉〈◊〉 aldi regis questos Dan•…•…s a pud Saxonem Hi∣storicum in∣venias.
Serm. 7.
De Offic. l. 1. c. 27.
Augustin. Officium sacer∣dotis est inter∣venire pro reis. In ejus Epi∣stolis multa sunt hujus bo∣nitatis speci∣mina.
Vide Chry∣sostomum 16. de Statuis. Concil. Au∣relian. c. 3. le∣gem Wisigo∣thorum l. 6. tit. 5. 16. 9. tit. 2. 3.
L. Nemo, C. de Episc. audientia.
Quas vide apud Cassia∣dorum. 11. 40. &c. inter alia de immunitate Ecclesiastica in Decreto.
Simeon Ma∣gister in ejus Canonis epito∣me: Qui vi adhibita vis•…•… sunt restit isse, sed ab impietate victi sunt, & militiam resum∣sere, decem per annos abstine∣antur. Eundem hujus Canonis sensum expri∣munt Balsamo & Zonaras & Russinus l. 10. c. 6.
Quod princi∣pale crimen, summus saeculi reatus dicitur Tertulliano de Idolatria: Gravissimum & extremum de∣lictum Cypriane, Ep. 12.
Sulpitius Se∣verus: Sane tum Licinius qui adversus Constantinum de Imperio certa∣vit, milites suos litare praecepe∣rat: abeuntes militia rejicie∣bat. Ob hanc causam Valen∣tinianus, quia Imperator postea sactus est, & sub Juliano ab∣secit cingulum. Non dissimile est quod Victor is icensis narrat, mullos sub Ha∣nericho R. mi∣litiam tempora∣lem abjicisse quia cum Aria∣nismo connexa.
Leo Epist. 9. ad Rust. Illici∣torum v•…•…niam potistantem o∣portet etiā •…•…ul∣tis licitis absti∣nere. In Episto∣la Episcoporum ad Ludovicum Regem legimus 〈◊〉〈◊〉 Quilibet tanto à se licita de∣bet abscindere, quanto se memi∣nit & illioita perpetrasse. In Capit. Calvi: Tanto quisque masora quaerat bonorum operum lucra, quanto graviora sibi in∣tulit damna per culpam:
Eusebius de∣monstrationum l. 1. duplicem describit Christianerum vitam, aliam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, aliam inferiorem, qui in hac sunt eos inter alia iis qui jusle militant agendo indicare.
Vide Canone•…•… Concilii Mogun∣tini apud Gra∣tianum, titulo, Ne clerici vel monachi.
Vide Epist. Hieronymi ad Nepotianum.
In Epistola ad Presbyteros diaconos & ple∣bem Furnis con∣sistentem. Adde l. Generaliter, c. de Episc. & Clericis.
Tertullianus idolat•…•…ia: Imo quomodo etiam in pa•…•… milita∣b 〈◊〉〈◊〉 Idem de fu∣ga persecutio∣num: Nostrae: •…•…ci quod est bellum quàm persicu•…•…? Cy∣prianus Episte∣la 10. Quando ipsa ante 〈◊〉〈◊〉 aler nostra Ecclesia pacem de mise∣ricordia Domini prior sumscrit. Epist. 22. Cum Dominus coepe∣•…•…it ipsi Ecclesiae pacem dare. E∣pist. 31. Eccle∣siae pacem su∣st. nendam, i. e. exspectandam. De lapsis, Dis∣ciplinam pax longa corrupe∣rat. Sulpitius Severus: Anto∣nino Pio impe∣rante pax Eccle∣siis fuit. Mox Interfectus dein∣de a inis 38 pax christianis suit. E•…•…n Constan∣tini aetate: Exinde tranquillis rebus paceperfruimur. Et initio historiae. Vexalio∣nesque pop. Christiani & mox pacis tempora.
Ex. l. c. c. 3.
L. non est de R. 1 Cass. l. 4. Var. Epist. 4.
Eundem vide in Edicto c. 10. & 124.
L. Exstat. D. quod metus.
Serv. ad 11. Aeneid. Injecere manum parcae. T•…•…axe∣runt debitum sibi. Et sermone usus est iuris, nam manus in∣jectio dicitur, quoties nulla iudicis autori∣tate, rem nobis debitum vindi∣camus.
Ex. 22. 2. 3. Molin. disp. 100. sect. du∣bium vero.
Solonis ver∣ba: Si quis de die quod plus quinquaginta drachmu vale∣leat, suretur, eum jus sit ad undecim viros deduci; quod si quis noc•…•… vel minimum quid suretur, etiam liceat vel occidere.
Mat. 5. 39. Rom. 12. 19. Ubi Latina versio habet, Non vos de∣fendentes.
Mat. 26. 52.
Rom. 5. 8, 10.
Lib. 10. in Luc.
De offic. 3. 3.
Lib. 1. de Lib. arb. c. 5. Epist. 154. ad Publicolum. Cap. 43. & 55.
Adde Conc'l. Aurelianensis canonem citat. à Gratiano c. ult. caus. 13. q. 2.
Cassiodorus de Amic. Sane nullus aliquo praecepto, vel aliqua ratione tenetur, salutem animae proximi perditione ani∣mae suae; aut corporis ejus li∣berationem, ci∣tra spem perpe∣tuae salutis, pro∣prii Corporis in∣teritu procurare.
Luke 22. 36.
Vers. 35.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. 1 Judith 2. & 2. 1. Luke 18. 7, 8. 21. 22. 2 Thes. 1. 8. 1 Pet. 2. 14. Rom. 13. 4. 1 Thes. 4. 6.
Jo. 18. 8, 9.
Vet. 11.
Quae Orige∣nis, Theophyla∣cti, Titi & Eu thymii sententia est.
Apocal. 13. 10.
Adeo satis ido∣neus patientiae sequester Deus: si injuriam deposuer is penes eum ultor est; si dolorem, medicus; si mor∣tem, resuscitator est: quantum patientiae licet, ut Deum habent debi∣torem. Tertul.
Es. 43. 10. Rom. 5. 7.
1 Jo. 3. 16.
Can. 45. c. si vero: &c. signif.
Ob nimium calorem.
Ambros. l. 10. in Luc. O do∣mine, cur me e∣mere subes gla∣dium, qui fe∣rire me prohibes? Cur haberi praecipis, quem vetas promi? nist 〈◊〉〈◊〉 ut sit parata defenslo, non ultio necessa•…•….
Ita inter cives erant quaedam matrimonia non justa, non justi liberi. Paul. sent. l. 2. t. 19. Sic & libertas quaedam non justa. Sen. de vit. bea. c. 24.
Ult. de leg. L. 3. D. adl. Jul. maj.
Nulli pror∣sue nobis insciis atque inconsul∣tis quorumlibet armorum movendorum copia tribuatur.
Citat Gratian. c. 23. qu. 1. ex Lib. 22. c. 74. cont. Faust. Apud Heb•…•…aeos bellum omne quod speciali Dei sussu sus∣cipitur, vocatur Bellum pote∣statum.
Liv. l. 39.
Vict. deju. belli, n. 9. Molin. disp. 100 sect. idem Vict.
Ajala deju. bel. l. 1. c. 2.
Innoc. c. olim de rest. spol. n. 8.
Livius D. loco.
Vct. n. 29. Cajet. 2. 2. qu. 40. art. 1.
Liv. l. 48.
Or, Lieute∣nants.
Liv. l. 31.
App. c. 4.
Or, Com∣mon wealth.
Servius ad 1. Aen. Omni di∣tione. Rectius omni quam omnis: ut signi∣ficet omni pote∣state, pace, le gibus, bello. Lib. 4. Lib. 7. Lib. 2.
Thucydides civitatem, quae vere civitas est, vooat, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Cacheran Decis. pedem. 139. num. 6.
Vict. de ju. belli, n. 7.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 apud Galenum lib. 6. de pla∣cit. Hip. & Plat.
Ex. 21. 6. In∣stit. de jure per∣son. sect. Servi aut. Gell. l. 2. c. 7.
Gall. de Ar∣rest. 1. 6. 22. & seq.
Aut haec cum illis sunt haben∣da, aut illa cum cumhls mit∣tenda sunt. Com. Est ini∣qua in omni re accusanda prae∣termisses boni•…•… malorum enu∣meratie. Ci∣cero.
At the same time the City Augusta peti∣tioned Charls the Emperour, that the De∣crees of their Senate might not be of force without the consent of the Masters of the Curiae; when Norimberga desi∣red the plain contrary thing.
〈◊〉〈◊〉 Falisei apud Liv. l. 5. Samuites, l. 8. Ste Epida•…•… à Coreyr•…•… de∣serti Corini•…•…is se •…•…runt, ut protegerentur. Thucyd. l. 〈◊〉〈◊〉. Popusum Cam∣panum, urbem que Capuae, a∣grns, delu•…•… a Deû•…•…, divina 〈◊〉〈◊〉 aque om∣nia, in vestram P. C. dutonem dedtmas.
Et Veneto∣rum. Bembus lib. 6
Apud Virgi∣lium legimus, Nec cumse sub leges pacis int∣qua Tradiderit regno.
Strabo. 12. Justin. 38.
Lib. 6.
Sen. de be∣nef. l. 2. c. 20. de Bruto lo∣cutus: Mthi, cum vir mag∣nu•…•… fuerit in ali∣is, in bac re vi∣detur vehemen∣ter 〈◊〉〈◊〉, nec ex institutione Stoica segestsse: qui aut Regis nomen extemu∣it, cum optimus civitatis status sub Rege iusto sit; aut ibi spe∣ravit libertatem futuram, ubi tam magnum praemium erat & imperandi & serviendi; aut exillimavit civitatem in priorem sormam posse revocari, amissis pri∣flinis moribus; futur amque ibi aequalitatem civilis juris, & staturas suo loco leges, ubi vide at tot millia hominum pugnantia, non an ser∣virent, sed utri. Vide & Bizarrum hist, Genuensi. l. 14. p. 329.
Sic multos ex liberis Graeciae Civitatibus in Salamma Cypri, quod Evagorae regnum erat, venisle narrat Isoc ates.
Or, Common-wealth.
Dion apud Philostrat. 5. 11. Met•…•… ne Ro∣mani longis dominatibus edomiti nullam jam ferre passint mutationem.
Sie Samii •…•…lta in conti∣nents oppida tenuere, ut S•…•…abo docet lib. 14. Sex op∣pida Halicar∣nasso attributa per Alexan∣drum magnum, memoral Pli∣nius Histor. nat. l. 5. c. 29. Idem lib. 33. cap. 4 Lindum insula•…•… ait esse Rhodiorum. Tantundem de Caun•…•… habes, lib. 35. Testatur idem Cicero Epist. ad 〈◊〉〈◊〉. Rhodiis iisdem, quod Romanos contra Antiochum ju∣vissent, complures urbes dono datu•…•… ait Eutropius lib. 3. nempe Ca∣rum & Lycio•…•…um, quae rursus eis ablatae à senatu. Utrumque est in exceptu Polybii.
Deut. 17. 14. 1 Sam. 8. 4. 1 Sam 9. 16. 10. 1. 15. 1. 2 Sam. 5. 2. 1 Reg. 4. 1. Ps. 144. 2. Luke 22. 25.
Regum timen∣dorum in pro∣prios greges; Reges in ipsos imperium est Jovis.
Ep st. 14. In∣terdum populus est quem timere debeamus; interdum, si ea civitatis disciplina est, ut plurima per sena∣tum tran•…•…gantur, grati•…•…si in ea timentur viri; interdum singuli quibus potestas populi & in populum data est.
3. Pol. 14.
Messenicis.
Institut. de jure nat. sect. sed & quod.
Xiph. vita M. Ant. l. 4.
Lib. 53.
In Argiva Trag. Suppli∣cibus, sic •…•…op∣regen. regen 〈◊◊◊〉〈◊◊◊〉 Aes•…•…hy∣lum: Tu res populi, tuque 〈◊〉〈◊〉 tota es, Non judictu subditus 〈◊〉〈◊〉, Regni 〈◊〉〈◊〉 sul∣tus ut ara, Vno∣que regent cun∣cta arbitrio.
Rex ipse Theseus apud Euripid.
Thesei filius Demophon a∣pud eund. Nec enim potestas barbarum in morem mihi, Sed justa refera obsequia, dum juste impero.
Polyb. l. 4. Plut. in Cle∣om. Cornel. Nep. Verba ipsius aut quisquis is est qui vitas illustres scripsit, in Agesilao: Vt duos haberent Reges nomine magis quam imperio. Alibi: Lacedaemoniorum autem Agesilaus nomine non potestate suit Rex, sicut caeteri Spartani.
—Haec juris sui Parere domi∣no civitas uni negat: Rex ipse populus annuas mandat vices Honoris huic illive.—
Livius Salinator in censura omnes tribus except â unâ ararias fecit, ac sic ostendit jus sibi esse in populum •…•…neur.
Sozom. hist. Eccl. lib. 16. Verba ejus sic refert Theo∣doretus l. 4. c. 5 Vestrum sun, milites, cum Imperator nullus esset, mihi tradere Imperii hujus hab•…•…∣nas, eas ex quo adeptus sum; de catero non vestrum sed meum dispi•…•… quid reip. expediat.
Jer. 25. 12.
Tacitus: Que∣modo sterilita∣tem aut nimios imbres, & cae∣tera naturae mala, ita luxum vel avaritiam dominantium tolerate. Vitia erunt donec homines; sed neque haec continua, & 〈◊〉〈◊〉 Interventu pensantur.
Xiphilin: Desummo prin∣cipatu Deus so∣lus potest judi∣care. Vitigis rex apud Cas∣siodorum Cau∣sa regiae pote∣statis supernis est applicanda judiciis, quan∣doquidem illa è coe•…•…o petita est, & soli coelo de∣bet innocentiam. A pud eundent Cassiodorum rex: Alteri subdi non pos∣sumus, quia judices non ha∣bemus.
Lib 5.
Homerus: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Ab Jove summus honos. D•…•…odorus Sic. l. r. de Aegyptiis. Existimant enim non sine divina quadam providentia pervemsse Reges ad summam de omnibus potestatem. Augustin. l. 5 de Cl. D. Qui Vespasiana vel patri vel silio, suavissimis Impp. ipse & Domitiano crude•…•…ssimo; & ne per singulos ire necesse sit, qui Constantino, ipse Apostatae Julia∣no: nempe, majestatem dedit, quod 〈◊〉〈◊〉. Vit •…•…is apud Cassiodorum: Omnis provectus, maxime Regius, ad divinitatis •…•…nera reserendus est. Titi Imperatoris erat dictum, Potestates fato dari.
〈◊〉〈◊〉. b. 7. c. 17.
2 Sam. 24. 17.
Lib. 1.
Lib. 15. Cap. 7.
Lib. 13.
Sic qui vitam scripsit Anni∣balis: Vt enim Rome consules, sic Carthagine quotannis annui bini Reges creaban∣tur. To these improperly stiled Kings may be added the Sons of Kings, to whom that royal name was given by their Fathers, retaining the power in themselves. Such was that Darius, whom his Father Artaxerxes caused to be judged and put to death. Plutarch. Artax.
Pralati, nyoce∣res, missisque potentibus ur∣bes, ut Gun∣therus loqui∣tur.
Pol. 3. 14.
Lib. 〈◊〉〈◊〉 Notatum id & Dionys. Hali∣carnass. l. 2. & 5.
Vide cui va∣cat Car. Moli∣naeum ad con∣suesud. Pa•…•…s. Tit. 1. sect. 2. gl. 4. num. 16.
You have an example of an Emperour made for a time, in Gre∣goras, lib. 4. initio.
So that the people, when they would save Fab. Ru∣tilian, made Petition to the Dictator.
Procopius. Vandal. 1. Aimol. 2. 20. & 4. 35.
Moris an•…•…iqui vestigium in B•…•…hetriis, vide Marianam l. 16.
•…•…oc de Heru∣lis etiam prodi∣dit Procepius Gol. 2. de Longobardis Paulus Warnasredi l. 4. & 6. de Burgundis Ammianus lib. 28. de Moldavis Laonicus Chalco•…•…∣las, de rege Agalis apud Af•…•…os Joannes Leo lib. 7. de Norwagis at Guil. Neubrigensis regem ibi factum quisquis regem occidisset. 〈◊〉〈◊〉 Q•…•…adis & Jazygibus similia habes in excerptis Dionis.
Hotem. cont. ill. qu. 1.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Dog. Laert. 1 Sam. 22. 28. 2 Sam. 10. 2. 1 Reg 9. 22.
Lib. 45.
Thucydides: Pars Thracum libera. Seneca pater suasoria. Non eadem mo∣do in libera ci∣vitate dicen∣dam esse senten∣ciam, quo apud Reges. Josephus antiq. hist. l. 13. ad Reges p•…•…losque li∣beros. Cicero Epist. 15. 4. Populorum li∣berorum, regum∣que saciorum auxilia. Plini∣us l. 6. c. 20. de Indis: Jam hi montium qui perpetuo tractu Oceani oram te∣nent, liberi & regum expertes.
Lib. 3. de legib. Annal. 1. Lib. 12.
De bello & de judiciis re∣cuperatoris.
Hinc illa: Quae urbes, qui agri, qui homi∣nes Aetolorum juris aliquondo fuerunt. Et, Estne pop. Collatinus in sua potestate? Liv. lib. 38. & lib. 5.
M. Antoni nus ad be lum Marcomonni∣cum cum 〈◊〉〈◊〉 a∣rio exhausto in∣dicere populo nihil vellet, fa∣cto in foro Tra∣jani sectione, distraxit vasa aurea, pocu•…•… Chrystallina & murrina, uxori•…•… & suam sericam & auream ve∣stem, multa or∣namenta gem∣marum.
Ideo Ferdi∣nandus Grana tensts Regni partem alteram, ut stante matri∣monio ex Castel∣lae proventibus quaesitam, sibi vindicavit. Docet Moriana lib. 28. Hist. Hispan.
L. in fidei •…•…missaria sect. plane. D. ad S. C. Trebell•…•…anum.
Balduino con∣cessere. qui cum ipso in orientem belli causa venerant, ut urbium, pro∣vinciarum, vectigalium, rerum bello captarum dimidium ipsi cede∣ret.
Lib. 8.
Ita enim eum Graece vocat Philo Biblius qui Sanchu∣niatonis historiam vertit. 1 Reg. 12.
1 Reg. 9. 6. ibid. 12.
1 Paralip. 8. 14.
Idem Hercules Dryopes, qui juxta Paruas∣sum habitabant, à se victos do∣navit Apollini. 〈◊〉〈◊〉 vius ad 4. Ae•…•…eid. Her∣culem adversus Lapithas belli socium sibi sum∣sit Doriensium Rex, parte Reg∣ni in mercedem societatis data. Cychreus Salaminis Rex prole carens regnum testa∣mento reliquit Teucro. Peleus ab Eurylione Phthiae Rege tertiam Reg∣ni partem accepit in doten•…•…; quae hobet Apollodorus. Apud Livium est libro 1. Proca Numitori regnum legat.
Diod. l. 4.
Lanassa nubens Pyrrho Epirolarum Regi in dotem ei attulit Corcyram urbem ab Aga∣thocle patre suo bello captam. Plutarchus Pyrrho.
Lib. 5.
Ammianus de Perside, non exacte tamen ad histo•…•…iae fi∣dem: Ex testa∣mento nationem omnem in suc∣cessoris unius jura translatam libro. 22.
Vale•…•…us Maximus: 〈◊〉〈◊〉 testa∣m•…•…nti aequitate grat•…•… Asiam pop. Romano le∣gavit. Florus de ea re: Addita igitur haereditate provinciam pop. Romanus, non quidem bello nec armis, sed quod est aequius, testamenti jure 〈◊〉〈◊〉. Flor. l. 2. Epit. Liv. 58.
Cic. secundum in Rullum: Haereditatem crevimus, regnum Bithyniae. Cic. de lege Agraria: Qui ignorat Regnum Aegypti testamento Regis Alexandrini, populi Romani esse factum? Ex Josepho discimus Herodem, Augusto si concedente ut Regnum cui è liberis vellet relingueret, testamentum aliqu ties mutasse. Antiq. hist. l. 15. & 16. Alfonsus Arragonius Neapoleos Regnum, ut armes partum, Ferdinando noto suo reliquit. In eodem Regno urbes quasdam Ferdinandus legavit nepoti. Maria∣na lib. 30.
Imperium non deb. re re∣linqui ut agros & servas dicit Vopiscus Ta∣cito. Salvia∣nus: Non •…•…∣terat populos quos regebat per testamentum egenis tradere.
Vide Capita∣lum 〈◊〉〈◊〉 con∣ventus ad Ca∣•…•…siacum sub Carolo Calvo. Huc refer testa∣mentum Pela∣gii quo Hilpa∣niam reliquit Alfanso & Os∣mifindae, & de Dania quaedam apud Saxonem. Neque mirum igitur, quaedam testamenta improbante populo fuisse irrita, ut Alfonsi Arrag•…•…i. Vide Marianam lib. 10. Et Alphonsi Legionensis, cum 〈◊〉〈◊〉 filias filio prae•…•…lisset. Idem Ma•…•…. l. 12.
Vide rem si∣milem apud Cassiodorum Lib. 8. Epist. 8. & seq. Ita pacta succes∣sionis mutuae inter Sancti∣um & Jaco∣bum Arr. go∣nenses à pro∣ceribus firma∣ta. Mariana lib. 12. & Hen∣rici Navarrae Regis qua Joannem instituit haeredem. Id. l. 13. & Isabellae Reginae Castellae. Id. lib. 28.
Vide de Vrge∣tii principatu Marianam lib. 12. c. 16.
Vide coth∣mannum Tomo 1. Cons. 41. num. 2.
Vide Marian. in Alphonso 5. Legionis R•…•…ge. At testamentum Regis Joannis de tutela & ad∣ministratione Regni à proce∣ribus improba∣tum. Mar. lib. 18.
Ptolomaeus Rex Aegypto Tutorem filio suo reliquit po∣pulum Romae∣num. Val.
Max. l. 6. c. 6. 1.
Justin. l. 13. Justin. l. 67. Plutarch. de am. frat. Lib. 2. Lib. 15.
Trasanus ca∣put suum, dex∣•…•… suam, st scienter setellis∣set, Deorum irae consecrabat. Plin. Paneg. Adrianus Imp. jaravit nun∣quam se sena∣torem nist ex se∣natus sententia 〈◊〉〈◊〉. A∣nasta fiu, Imp. juravit serva∣turum se decre∣ta Chalsedonensis Concilii. Me∣minere Zonaras, Cedrenus, alii. Seriores Impe∣ratores Graeci Ecclesiae jura∣bunt. Vide eun. dem Zonaram Michaele Rau∣gabe & alibi. Vide & in Got∣this Regibus exemplum apud Cassiodorum. 10, 16, 17.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Plutarchus.
Lib, 10.
Val. Max. lib. 9. c. 5.
Dan. 6. 8, 12. 15.
Plutarch. in Themistocle. Diodurtis Sicu∣lus lib. 17. & multo post tem∣pore Procopius Persici belli lib. 1. Vbi insignis ad banc rem hi∣storia exstat. Tamen idem de Lethe castello legem à Rege mutatam refert, sed non probat.
Lib. 3. Lib. 1.
Leges tyranno∣rum corpora in∣sepulta extra fines projici ju∣bent. Applanut Civilium ter∣tio. Androni∣dus Imp. Patrem suum Michaelem, quod fidem Latinans sequi coe∣pisset, mortuum sepultura privavit. Gregoras lib. 6.
Vide Josephum de Joramis duobus, altero Hierosolymorum, 〈◊〉〈◊〉 Isratlu Rege, lib. 8. cap. 3. & 5. Item de Joaso Hierosolymorum Rege.
Plutarchus: Solebant Reges in Cassarorum terra, quae Mo∣lottidos pars est, Jovi Areo sa∣crisisare ac ju∣ramenium prae∣stare Epirotis. Jurabant au∣t•…•…m Reges se im∣peraturos sicun dum leges. Epi∣rocae autem se imperium ejus∣dem conserva∣turos secundum easdem leges.
Vide exem∣plum apud Crantzium lib. 9. Suedicorum.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Agatharchides apud Photium.
Quod & Ar∣temidoro auctore Strabo annotavit. lib. 16.
Aut etiam ne subditi Regem pacta viol•…•… juvent: aut ne ei pareant. Vide Crommerum Polonicis 19. & 21. Est & exemplum apud Scasnaburgensem in rebus Henrician. 1074.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Vide Zazi∣um singularium responsorum lib. 2. c. 31.
Ita Probi tem∣pore Senatus firmabat prin∣cipum leges, de appellationibus cognoscebat, pro∣consules creabat, legatos consuli∣bus dabat. Vide & Gail. lib. 2. observ. c. 57. num. 7. & Card. Manti∣cam de tacitis & ambiguis conventionibus lib. 27. tit. 5. num. 4.
Exempla sunt cum plura in historia popu∣lor 〈◊〉〈◊〉 septentrio∣nalium. Vide Joannem Mag∣num historia Suedica lib. 15. & 29. Crant∣•…•… Suedicorum 5. Pontanum Danicorum 8.
Boer. ad c. 1. de const. in De∣cret. Plut. Apoph. L. unica. c. quando Impe∣rator. Addel. 1. c. de petitioni∣bus bonorum sublatis.
Quod 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocat; eadem est 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Soph•…•… Anti∣gene, Plutarcho 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, S•…•…abo∣ni 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Dionysius Halicarnassen∣sis de Laconi∣cis regibus: Neque enim La∣cedaemonii pleno jure Reges erant.
Putabat popu∣lu•…•… nihil esse ab∣surdi si cum vi∣ciniregnareatur, ipsi eandem im pe•…•…ii so•…•…mam ac∣ciperent. Jose∣phus.
Aeschylus Persis de Rege Persa•…•…um sic loquentem fa∣cit Atossam:—〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. No'um illud Maronis:—Re∣gem non sic Aegyptus, & ingens Lydia, nec po•…•…uli Parthorum aut Me∣dus Hydaspes Observant.—Apud Livum: Syri & Asiatici 〈◊〉〈◊〉 hominum servituti nata; à quo non discrepat illud Apollonii apud Philostratum: Assyri & Medi dominationem etiam adorant. Arist. 3. Polit. 14. Aesia•…•…ci dominatum aequo a•…•…imo serunt. Cicero de p•…•…or consularib. 〈◊〉〈◊〉 & Syris nationibus natis servituti. Sallust. de gentibus o•…•…lentis: Adeo illis •…•…genita est sanctitas Regii nomi•…•…. Apud Tacitum Civilis Batavis ad Gallos: Hist. 4. Servirent Sy∣ria Asiaque & suet•…•… Oriens. Nam & in Germania & in C•…•…llia tum Reges erant, sed ut idem Tacitus notat, precari•…•… 〈◊〉〈◊〉 regnandi, & autoritate suadendi, non jubendi potestate.
Idem Hiero∣nymus Epist. ad Rust. de paenitent•…•…a: Rex enim crat: alium non time∣bat, alium non habebat super se.
Paria habet ad •…•…dem Psalm•…•…m Ar∣nobius minor Vit'ges apud Cassiodorum: Causa Regiae po∣testatis supernis est applicanda judiciis, quan∣doquidem i'la à Coelo telita est, ita seli Coelo de∣bet innocentiam. Idem legere est apud Isidorum Pelusiot. Epist. postre•…•… edita∣•…•…um. 383.
Nulla crea∣tura judicat Re∣gem, sed Deus benedictus. Ex. 32. 8. Deut. 1. 17. Psal. 72. 1. 2 Chron. 19. 6. 8. 1 Chron. 26. 32. 2 Chron. 19. 11.
Non capit Propbetam pe∣rire extra Je∣rusalem. Luke 13. 33. Jer. 38. 5.
Joseph. An∣tiqu. 14. 17.
Lib. 14.
Lib. 6.
Lib. 8.
Laonicus Cha•…•…∣cocondylas taliae ait esse regna Pannonum & Anglorum, l. 2. Arragonum, l. 5. & Navarrae eo∣dem libro, ubi ait, nec magistra∣tus à Rege crea∣tos, nec praesidia imposita nisi vo∣lentibus, nec quicquam popu∣lo imperatum contra mores. Reges alios esse pleno cum jure, alios sub legibus, etiam Judaeus Levi Gersonides notavit ad 1 Sam. 8. 4. Mira quae de Taprobane scribit Plinius lib. 6. c. 22. Eligi regem à populo senecta clementia{que} liberos non habentem, & si postea gignat, abdicari, ne fiat haereditarium regnum. Rectores ei à po∣pulo xxx, dari, nec nisi plurium sententia quenquam capite damnari. Sic quo{que} appellationem esse ad populum, lxx. judice dari. Si liberent ii reum, non amplius xxx. (ita enim legi locus hic debet) iis nullam esse dignitatem, gravissimo probro. Regi cul∣tum liberi patris, caeteris Arabum. Regem si quid delinquat m•…•…rte mulctari, nullo interimente, sed aversantibus cunctis & commercia etiam sermonis negantibus. Servius ad illud 4. Aen. populum{que} patresque. Quidam hoc loco volunt tres partes politiae comprehenlas, populi, optimatum, regiae potestatis. Cato enim ait detribus istis partibus ordinatam fuisse Carthaginem.
Epist. 100.
3. Annal.
Plutarchus Coriolano: Populus jus non habebat aut le∣gem condendi aut aliud quid jubendi nisi Se∣natus praecessis∣set auctoritas. Similem mix∣turam in Ge∣nuatium rep. suis tempori∣bus observat Chalcocondy∣las l. 5. Liv. lib. 6.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉
Justin. l. 43. Vol. Max. l. 7. cap. 1.
Imperii re∣verentiam di∣xit Tacitus, & fic explicat: Scde fixibus{que} in sua ripa, mente auimo{que} nobis∣cum agunt. Lib. 4. Florus: Illi quo{que} reliqui, qui immunes imperii erant, sentiebant ta∣men matnitudi∣nem, & victo∣rem gentium populum∣Romanum reverebantur.
Lib. 1.
Lib. 1.
Nicom. l. 9. c. 18.
L. non dubito D. de cap.
Vide Cardina∣lem Tuscbum PP. concl. 935. exemplum habet in Dilimnitis, qui 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 sui{que} juris Per∣sis militabant apud Agathiam lib. 3. Sic Irene consilium fuit inter mariti li∣beros it a parti•…•… Imperium ut post natos faoe∣ret dignitate quidem mino∣res, caeterum sui juris ple∣naeque potesta∣tis. Vide Crant∣zium Saxonico∣rum 10. de ur∣bibus quaesein Austriacorum protectionem de∣dere. Herodian. l. 5. Osroë∣norum & Ar∣moriorum, quorum hi sub∣diti erant, illi amici & socii.
Appian. Mithr.
Liv. lib. 3•…•….
Cic. Offic. 2.
Liv. lib. 26.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. lib. 16.
Gallus Aeli∣us apud Fe∣stum: Recipe∣ratio est cum in∣ter populum & Reges nationes{que} ac civitates pe∣regrinas lex con∣venit, quomodo per reciperato∣rem reddantur res, reciperen∣tur{que} res{que} pre∣vatat inter se prosequantur. Liv. lib. 23.
Talae conven∣tus vocatur 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Joseph. l. 16. 6. 7, 8.
Vide Polyb. in legationum ex∣•…•…pto 105.
Val. Max. l. 4. c. 1.
Polit. 3. 9.
Isocrates ali∣bi: itae ut im∣perium habere belli, non domi∣nari se debcre censerent: Item: Socialiter non heriliter res co∣rum curantes.
Plinius epist. 8. 24.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Rhodii in o∣ratione apud Senatum Ro∣manum, quae apud Livium exstat l. 37. Graeci domesti∣cis quondam viribus etiam imperium am∣ptectebantur: nunc imperium ubi est, ibi ut sit perpetuum op∣tant: libertatem vestris tueri ar∣mis (atis habent, quoniam suis non possunt. Sic post Cadme∣am à Theba∣nis receptam narrat Diodorus lib. 15. multas civitates Graecas convenisse, Omnes ut liberae essent, sed Atheniensium ductu uterentur. De ipsis Atheniensibus Philippi Macedonis tempore Dion. Prusaeensis: quo tempore ductu belli omisso libertatem solam retinebant. Sic Cae∣sar, quos sub imperio Suevorum fuisse dicit, cosdem mox socios nominat.
Lib. 42.
Hal. l. 6. Liv. l. 34. Hist. 4.
Hoc ipsum est quod Arato Plu∣tarchus dicit 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Molle servitlum, vv∣cula apud Taci∣tum hist. 4. Fe∣stus Rufus de Rhodiis: Pri∣mum liberè a∣gebant, postea in consuetudi∣nem parendi, Romanis cle∣menter provo∣cant bus, per∣venerunt. Vide Agathiam lib. 1. ubi monentur Gotthi quid à Francis cum tempore exspe∣ctandum habe∣ant.
Lib. 35. Lib. 37.
Tales & Lazi Jusi•…•…niani tem∣poribus. Vide Procopium Pers. 2.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, ut est apud Thucydid.
Persae pecuni∣am annuam ab Jussiniano ac∣cipi•…•…bant, qua de•…•…e vide Proco∣copium Persico∣rum 2. & Got∣thicoium 4. Id molli vocabalo vocabalur sti∣pendium ad tu∣tandas portas Caspias. Turca Arabas monta∣nas pecunia placant.
Joseph. l. 15. Negabat An tonius rectum elie reg•…•…m vo∣cari ad rat o∣nes reudendas de iis quae ut Rex fec. 〈◊〉〈◊〉: •…•…ta enim ne regem quidem cum fore. Par esse ut qui hone∣rem ei dede∣rint, et•…•…am po∣testare quam liberr mè uti eum sinant. Chrysostomus 2. de Eleemosyna: Judaei, ex quo retro ferri res eorum coepere, Romano attributi imperio, ne{que} in plena, ut ante, erant li e•…•…: ne{que} tamen ita ut nunc omnino servi, sed sociorum vo∣cabulo honorabantur, regibus suis tributa a pendentes & ab iis ac∣cipientes praefectos. Caeterum in pleris{que} suis utebantur legi∣bus, ita ut & popularium delinquontes ipsi punirent secundum mores patrios.
Lib. 12.
Vide Plu∣tarch. Demetrio.
L. 1. c. 4.
L. votu mc. de Metatorib. l. 12.
Euripid. Cy∣clope.
De Bebricii similia pro•…•…i∣dit Valerius: Non soedera le∣gum Vlla col•…•…n placidas aut su ra tenentia me•…•…∣tes.
Rex est suo u∣tens jure nulli obnoxius. Aes∣chylus. Nam Principes sunt: obsequendum. quippeni? Soph.
Imperia haben∣tum perferenda inscitia est. Eu∣ripid.
Impune quid∣vis facere, id est Regem esse. Pertinent huc M. Antonii verba quae ex Josepho modo adduximus. L. Milites. §. irreverens. D. de re milit. Rufus legi. mi∣litaribus. cap. 15.
Deut. 17. 12. Jos. 1. 18.
1 Sam. 8. 11. Deut. 17. 14.
Philo in Flaccum: Quando enim defectionis sus∣pecti fuimus? quando non pa∣cis amantes ab omnibus sudica∣ti sumus? insti∣tuta vero, qui∣bus utimur quo∣tidie, nonne ex∣tra reprehensio∣nem sunt? nonne ad concordiam bonum{que} statum civitatis condu∣ount?
L. jus pluribus. D. de just. & jure.
Rom. 13. 2.
Vers. 4.
Vers. 5.
Bene Chriso∣stomus: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. princeps nimirum Evergelium praedicanti. De∣dolat ille quod tu descobtuas,
Sint quibus imperes. Dictam hoc Sullae aiunt Plutarchus, Florus & alii, unde •…•…sit August nus l. 3. c. 28. de Civ. Dci.
Est hoc de statuis lexto: sed & noc Tolletribunolia, & omnem de vita tranquilli∣tatem abstuler is. Deinde, N•…•… mibi illos. efer, qui mole usi sunt bonorivus, sed ipsius insti∣tuti vide pul∣chritudinem, & sapientiam ejus admirabilis qui primus ejus aucter suit. I∣dem ad Ro∣manos: Magistratus siabstuleris, perierint omnia, non urbes stabunt, non agri, non sorum, nec quicquam aluid. Evertentur omnia, & for∣tioris esea fiet quilibet infirmier. Idem sensus apud eundem ad E∣phes. 5.
L. 〈◊〉〈◊〉 D. de Legib. 〈◊〉〈◊〉. 3. in fint. D. de pet. h•…•…ered. Liv. lib. 34.
Sin. de ben. cap. 16.
Thucydid. lib. 2. q•…•…icum bene convenit illud Ambrofii lib. 3. dc Offic. Eadem singulo∣rum est utilitat quae universo∣ium. Et illud in jure: Semper non quod priva∣tim interest uni ex sociis serva∣ri debet, sed quod Communi societati expe∣dit. L. Actio∣nes. sect. La∣beo. D. pro Socio.
Lib. 26.
Plato dixerat legum 4. Quod commune est connectit civi∣tates, quod sin∣gulorum dissi∣pat; quare & publice & pri∣vatim utilius est, ut publica magis quam pri∣vata curentur. Xenophon ve∣ro: Qui in bel∣ls contra ducem seditiose se ge∣rit, facit hoc cum suae salutis periculo. Eodem & illa Jambli∣chi pertinent: Non disjuncta & privata uti∣litas à publica, i•…•…ò in bono communi singu∣lare etiam con∣tinetur: & ut in enimalibus cae∣tera{que} natura, it a in civitati∣bus, in totius salute salus est partium.
1 Epist. 2. 18, 19, 20.
Tertullian. de poenitentia. Timor hominis Dei honor est.
Ames paren∣tem, si aequ•…•… est: si non, ser as. Terentius Hec. Nam matris ferre injurias me, Parmeno, pletas jubet. Cic. pro Clu∣entio: Non mo∣do reticere homi∣nes parentum injurias, sed etiam aequo ani∣mo ferre oportet. Habet ad hoc praeceptum pulchra Chry∣sostomus tum 2. ad Timoth. cum libro 5. adversus Judae∣os. Pertinent huc & quae E∣pictetus & post eum Simplici∣us habent de duabus ansit.
•…•…pud persas, laudante Clau∣diano, Quam∣vis crudelibus aequè Paretur dominis.
Ad quam per∣tinet Canon 18. Concilii Chal∣cedonensis, repe∣titus Canone 4. Concilii in Trul∣lo: Concilium Tole•…•…num 4. Capitulum 2. Caroli Calvi in villa Colonia. Synodus Suessi∣onensis canone 5.
Xiphilinus Domitiano: Insidias autem ei communicato inter se consilio struxere Parthe∣nius praepositus cubiculariorum, & Sigerius, & ipse è cubicula∣riis. Martial. l. 4. Sigerios{que} mero•…•…, Parthe∣nios{que} sonas. Corruptum id nomen non modo hic in Tertulliano suerat, sed ad∣huc est in Suc∣tonio, ubi Sa∣turius, & in Vi∣ctore vulgari ubi Casperius legitur.
Idem Am∣bros. ep. 33. Vultis in vin∣cularapere? vo∣luntas est mihi. Non ego me val∣labo circumfu∣sione populorum. Imitatus est magnus Gre∣gorius lib. 6. epist. 1. Si in morte Longobar∣dorumme misce∣re voluissem, ho∣die Longobar do∣rum gens nec Regem, nec Du∣ces, nec Comites haberet, at{que} in summa confu∣sione esset divi∣sa.
Lib. 5. Orat. in Auxent. In∣seruit Gratia∣nus caus. 23. quaest. 8.
Theodoret. hist. Eccles. lib. 5. cap. 4.
Orat. 1. in Ju∣lian.
Prop. 74.
P. Martyr ad Judicum 3. Paraeus ad 13. cap. ad Rom. Jun. Brutus. Danaeus lib. 6. polit. & alii.
Genus spe∣ciale, Sen. epist. 58.
Averroes 5. Metaph. tom. 6. Ordinem non dari nisi cum relatione ad ali∣quid primum.
Sic in familia paterfamilias primus, inde materfamilias, inde filii, mox ordinarii servi, postremo servi vicarii. vide Chrysost. 1 Cor. 13. 3.
Unde illud, Omne sub reguo graviore regnum est: Et Papinii illud, Vice cun∣cta reguntur, Alternis{que} re∣gunt: Et Au∣gustini dictum celebre, Ipsos humanarum re∣rum gradus ad∣verte, si aliquid jusserit Curator, faciendum: non tamen si contra Proconsul jube∣at: aut si Con∣sul aliquid ju∣beat, & aliud Imperator. Non utique contem∣nis potestatem, sed eligis majori servire: n•…•… hine debet minor irasci, si major praelatus est. Et hoc ejusdem de Pilato, Talem quippe Deus dederat illi potestatem, ut esset etiam ipse sub Caesaris potestate.
1 Ep. 2.
1 Sam. 15. 30.
Hoc pro me utere, si recte impero; si male, contra me.
Quod postea imitati Pertinax & Macrinus, quorum oratio∣nes egregias a∣pud Herodia∣num vide. Dion. lib. 6.
Vide etians ver∣ba Jonathan. 1 Macc. c. 9. 44.
Vide fose phum ubi de cu∣stodibus Saulus agit. Polyb. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
1 Pet. 2. 13. Rom. 13.
Barclaius lib. 3. adv. Monar∣chom. cap. 8.
Insigni parti.
Lib. 6. c. 23. & 24.
Vix ausim.
1 Sam. 22. 2. & 23. 13.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Justin. lib. 36. Primus Xerxes Rex Per∣sarum Judaeos domuit, postea cum ipsis Persis in ditionem A∣lexandri magni venere, diu{que} in potestate Mace∣donici Imperii suere. A Deme∣tri•…•… cum desci∣vissent, amici∣tia Romanorum petita, primi omnium ex Ori∣entalibus liber∣tatem recepe∣runt, facile tunc Romanis de alieno largi∣entibus.
Vilissima pars servientium. Tac. Hist. 1. 5.
1 Sam. 26. 9. Exod. 22. 28. Optat. l. 2.
Josephus de Davide. sed statim paenitudi∣ne ductus, inju∣stum facinus esse dixit, De∣minum suum occidere. Et post: Horren∣dum, regem quamvis ma∣lum interficere, poenam enim id facienti immi∣nere ab eo qui regem dedit.
Problem. sect. 40.
Julianus Mi∣sopogone: Sunt enim leges severae pro prin∣cipibus, ita ut qui in principtm injuriosus fue∣rit, is ex animi libidine concul∣caverit leges.
Quintil. De∣clamat. 348. Hanc esse con∣ditionem omni∣um, qui admi∣nistrationem reipub. aggredi∣untur, ut ea quae maxime perti∣nent ad salutem commanem, cum quadam sui in∣vidia efficere cogantur. Vide ea de re Liviae verba ad Au∣gustum apud Xiphil. ex Dione.
Plutarch. Agide: Nec fas, nec licitum regis corpori manus inferre. Insigne illud apud Hometum:- Nam pro po∣puli pastore timebat, Ne quid ei accideret. Bene Chrysostomus 1 Tim. 1. Si quis ovem jugulet ab eo gregem immi•…•…ui: ut si quis pa∣storem de medio sustulerit ab eo totum gregem dissipari. Seneca lib. priore de Clem. c. 3. Somnum ejus •…•…octurnis excubiis muniunt: late∣ra objecti circumsusi{que} defendunt: incurrentibus periculis se apponunt. Non hic est sine ratione populis urbibus{que} consensus, &c.
Apud Plu∣tarch Theraistocle.
1 Pet. 2. 22, 23.
1. Pet. 4. 13. &c.
Ad Deme∣trianum.
Ejudem haec libri primi epistola 1. In∣tellexit (ad∣versarius) Chri∣sti milites vigi∣lare, jam sobrios & armatos ad praelium stare, vinci non pesse, mori posse; & hoc ipso invictos esse, quia nec mori timent, nec repugnare con∣tra impugnan∣tes, cum occide∣re innocentibus nec nocentem li∣ceat, sed promp∣te & animas & sanguinem tra∣dere.
Lib. 5. Lib. 6. qu. 10. in Jos.
Epist. 166.
De Civit. Dei. l. 22.
De hujus Martyris ho∣no•…•…ibus apud Helvetios vide Guillemanum in veteri scrip∣to de transla∣tione sancti Justini in no∣vam Cor∣beiam: Unde juxta fidem Chronicorum sub atrocissima & incompara∣bili illa decima post Neronem persecutione pas∣sum eum colli∣gimus: quae & prioribus perse∣cutionibus im∣manior, dum venerabilem multitudinem Martyrum coelis mitteret, inter quos etiam prae∣cipuum S. Mau∣ritii Collegium, & innocentiae speculum. De Thebaeis mar∣tyribus Bruns∣vicum transla∣tis vide Crant∣z•…•…um Saxoni∣corum. 7. 16.
Similia sunt illa Judaeorum Alexandrino∣rum ad Flac∣cum: Inermes sumus, ut vides. Et tamen sunt qui nos tan∣quam hostes publicos hic cri∣minantur. Etiam tas quas ad no∣stri tutelam par∣tes dedit natura retro vertimus, ubi nibil habent quod agant. Cor∣pora praebemus nuda ac patien∣tia ad impetum earum qui nos volent occidere.
Ne justi pu∣nirentur mul∣titudo non ob∣tinuit: cum multum (ma∣le editur, mul∣rotum) esse soleat quod multitudo de∣liuquit.
Vide excerpta ex Joanne An∣tiocheno, ex MS. lib. viri aeterna memoria dignis∣simi Nicolai Peiresii.
The identity of nature of the Father and Son. 1 Pet. 2. 21.
Mat. 10. 39. Lu. 9. 34.
Plutarchus Lysandro: Spartiatae regem ad capitis judi∣cium vocarunt, quod ille decli∣nans fugit Te∣geam. Idem Sulla: Quibus∣dam regibus Spartiatae reg∣num ademerunt, ut ineptis regno, quippe abjectis nihili{que} homini∣bus. De Agide injuste, sed damnato ta∣men, vide cun∣dem Plutar∣chum. Mosy∣naeciregem media punie∣bant. Mela lib. 2.
Et aruspex Etruscus in Mezentium insurgent bus:—Quos justus in hostem Fert d•…•…r.
Lib. 4. c. 16.
Instit. de usus. §. fruitur. L. Usufr. D. de jure dotium.
Lib. 2. contr. 9.
Paricausa tri∣bunus plebis qui sit, ipso jure de∣sinere esse talem, ingeniose desen∣dit Gracchus, cujus verba dig∣na lectu apud Platarchum.
Vide de regno Arragoniae Ma∣rianam l. 8.
Exemplum ha∣bes in Genuat. repub. apud Be∣zarum lib. 18. in Bohemia tem∣pore Wences•…•…i historiae lib. 10. Adde Azorium instit. moral. l. 10. c. 8. & Lambertum Scasnaburgen∣sem de Henr. 4.
Exempla vide apud Thuanum hist. 131. in nar∣ratione anni 1604. & l. 133. in anno 1605. utrum{que} de Hungaria: apud Meierum narra∣tione anni 1359. in Brahamia & Flandria. narra∣tione anni 1468. in foedere inter Regem Galliae & Carolum Bur∣gundum. Adde de Polonia quae hobet Chytraeus Saxonicorum 24. & de Hun∣garia Bonsinius Decadis 4. libro 9.
Vict. de potest. Civ. n. 23. Suarez de Le∣gib. lib. 3. c. 10. num. 9. Lessius de just. & jurel. 2. c. 29. aub. 5. n. 73.
Lib. 2. c. 1.
Apolog. 9. c. quando liceat. lib. 2. In reos Majistatis & publicos hostes omnis homo mi∣les.
Qui ita sentit ib. de sato ad Pisonem.
Plutarchus Publicola. Vt injudicatum occidere eum li∣ceret qui domi∣natum concu∣pisceret. Mox addit: Solon ei qui domina∣tum invadit de∣prehenso diem dici vult. at Publicola etiam ante judicium talem permittit interfici. 2 Chron. 2•…•….
Mihi pax om∣ni cum civibus bello civili uti∣lior videtur. C•…•…c. Liv. l. 34
Quod P•…•…tar∣chus in T. Quintii vita sic expl cat: Cum vide•…•…t ct si∣ne gram alto∣rum Laconum malo con posse tyrannum de∣sicui. Non alie∣num est ab hac re quod Plu∣tarchus refert, Laconem quendam cum legisset, Hos, dum Marte pa∣rant dominatum extinguere, sae∣vus Ante Seli∣nunti •…•…oenia Mars rap•…•…it: Respond sse. Mento viri illi pe•…•…re. Exspe∣ctare enim de∣buerant ut ipse per se domina sus conflagraret.
Detrahimus Dominos urbi servire•…•… paratae.
Plutaich Ca∣tone Maj de Antiocho Magno. Bello praetextum su∣mebat, liberare Graecbs l•…•…berta∣tis non egentes.
Appian. civ. 1.
Cujus verba Lati e sic po∣suit Cic. ep. fam. l. 1. Tantum conten∣dire in rep. quan∣tum probare tu•…•… civibus possis: vim ne{que} paren∣ti, ne{que} patriae •…•…fferri o•…•…ortere.
Bell. Jugurth.
2. 2. Qu. 42. art. 2.
Huc & Am∣brosii illud non male refe∣ras: Adjuvat hoc quo{que} ad prosectum bonae existimationis si de potentis manibus eripias inopem, de morte damnatum eruas, quantum sine confusione fieri potest; ne videamur jactantiae magis facere causa, quàm misericordiae; & graviora inferre vulnera, dum minoribus mederi desideromus. De offic. 2. c. 2. Non longe abit illud Stallii apud Plutarchum in vita Bruti: Aequum non esse ut vir prudens ac sapiens improborum & desipientium causa in pericula & turbas se conjiciat. Jud. 3. 15. Nehem. 9. 27.
2. Reg. 9.
Mat. 22. 20.
L. servus. D. de serv. export. Cic. l. 2. Offic. ex Panetio. DD. ad leg. si quis in ser∣vitutem. D. de su•…•…. l. prohib. c. de jure fisci.
Unde illud, Porro Quiri∣tes, & quiritari.
Rhet. ad Alex. e. 3.
Bart. in l. Ut vim. D. de justi••. & jure n. 7. & 8. Jason ibid. n. 29 Panor. n. 18. Sylvest. in ver. Bellum. q. 8.
Plutarchus refert: Civ ta∣tum illa felicis∣si••è colitur, in qua qui injuriam non sensere, & qui sensere se oppo∣nunt, & injuriam caeptantes puniunt.
M••nandri di∣ctum est: Injuriarum si improbis auctoribus Reponeremus ultionem singuli, Nobis putantes fieri quod fit alteri, Inter nos juncti conspiratis viribus; Non praevaleret innocentia impetus Audax malorum, qui custoditi undi{que} Jussi{que} paenas quas merentur pendero, Aut nulli penitus essent, aut pauci admodum?
Lib. 6.
L. cum Cumus. C. de agricolis, lib. 11.
Arist. l. 5. de mo∣ribus. cap. 10. L. Gracch. cap. de adul. Sen. 1. cont. 4. Thom. 2. 2. 40. art. 2. Sylvest. de bello p. 3.
Servius ad 9. Aen.
Ac Levitae o∣lim extra belli munia, ut nota∣tum Josepho. De Clericis vide Nicetam Chro∣••iatem lib. 6. Caroli Calvi ca∣pitulum in Spar∣naco 37. in Gratiano c. cle∣ricum. dist. 5. & causa 23. qu. 8. Et Canones qui∣dem sic habent: sed quanto illi servati à Grae∣cis quam à Latinis diligentiùs, vide Annam Comnenam.
Ex l. 2. c. 1.
3. Hist.
Exordit pu∣guae, dixit Vir∣gilius.
Lib. 45.
Certè vix ul∣la gens tam diu constans mansit in spe∣ct •…•…dis belli causis. Poly∣bius apud Sui∣dam, voce 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Rom •…•…∣ni summopere id curarunt, ne priores ipsi fini∣timis inferrent violentas ma∣nus. Sed ut sem∣per crederentur in hostem ire ad arrendas injuri∣as. Ostendit id Dion egregia comparatione Romanorum cum Philippo Macedone & Antiocho in excerptis Pei∣resianis. In quibns est, Valde id stu∣dent Romani justa ut bella sus•…•…iant, nihil{que} tale decernant sine causa ac temere.
Eodem sensu 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 dixit Aelianus: & Didorus Siculus, l. 14. easdem vocat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 dixit Procopius Gotth. 3. Dion. Halic. l. 8. Olynth. 2.
Lib. 12.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Sic & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 belli dixit Julianus 2. de laudibus Constantii
Lib. 12.
De Repub. l. 3.
Appianus ei∣dem Crasso à Tribunis de∣nunciatum di∣clt; ne bellum Parthis inferrec nulla injuria cognitis. Plu∣tarchus de co∣dem: Coiba•…•… multi indignan∣tes esse aliquem qui bellatum iret in homines non modo nul∣lius injuriae compertos, sed & pace defens•…•…. Epist. 96.
Idem Seneca de ira 2. c. 8. Progloria habi∣ta, quae, quan∣din opprimi pos∣sunt, sceler•…•… sunt.
Locus est de Benef. 1. c. 13. Non male Just. Ma•…•…tyr Apo∣log. 2. Tantum possunt Princi∣pes qui opinio∣nes vero praese∣runt, quantum in solitudine la∣trones. Philo: Qui magna furta committunt, qui honesto principatus nomine obum∣brant ea quae reipsa nihil nisi latrocinia sunt.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Arrian. lib. 7.
De Civ. Dei. l. 4. c. 4. Remota justitiâ, quid sunt regnani∣si magna latrocinia.
Lib. 1. de sal∣sa relig. De Civit. 4.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Sylv. de bel. c. 1. n. 2.
Ego Vos testor, populum illum injustum esse, ne{que} jus persol∣vere.
Camillus ad Gallos, Liv. l. 5. Omniae quae defendi, repeti{que} & ulcisci fas sit.
Alcibi•…•…de.
Lib. 3. de be∣nes. c. 14.
Liv. lib. 1. In Historiis.
Servius ad 9. Aen. de Ro∣manis: cum volebant bellum indicere, Pater patratus, h. c. Princeps Fecia∣lium, proficisce∣batur ad hosti∣um fines, & praefatus anaedam so∣lemnia, clara vo•…•… dicebat, se bellum indicere propter certas causas: aut quia socios lae∣serant, aut quia nec abrepta ani∣malia, nec ob∣noxios redde∣rent.
Lib. 6. q. 10. super Josue.
Liv. l. 5. Apodict. 2. c. 2.
Lib. 12.
Plutarchus Nicia: Herculem etiam cuncta sub•…•…gisse, dum lacessitus se defendit. Josep•…•…us 17. antiquae hist. Quin id veniunt ut in nihil bestile cogitan•…•…es violentas inserant manus, hi sunt, qui invitos cogunt ad arma semet tutatura confugere.
Sylv. in verbo Bellu•…•…, p. 1. n. 3. & p. 2. P. 1. n. 36.
Bartol. ad leg. ut vim. D. de just. & jure. Bal. in rep. l. 1. c. unde vi.
Cajet. 2. 2. art. 6 7. q. 2.
2. 2. q. 64. art. 1.
Hujus distin∣ctioni, usum egregum vide apud Agathi∣um lib. 4. Apud Thucyd. 8. Phrynichus: Cariturum in∣vidia si ipse jam in vitae per ipsos adductus peri∣culum, & hoc & aliud quid∣vis aggrediatur potius, quam ab hominibus ini∣micissimis perdi se sinat.
Offic. 1.
Citat Quin∣til. lib. 5. Insignis est il∣la apud Gelli∣um sententia: Gladia'ori com∣posito ad pug∣nandum, pugnae haec proposita sors est, aut oc∣cidere si occupa∣verit, aut oc∣cumbere si ussa, verit. Hominum autem vita non tam inequis ne{que} tam indomitis necessitatib•…•… circumscripta est, ut ideirco prior injuriam facere debeas, quam nis•…•…seceris, pati passis. Locum hic habe illud Euripidis.
Te si, ut ais, interficere vir voluit tuus, Voluisse sat erat & tibi, ubi tempus solet.
Lib. 1. Lib. 3.
Livius lib. 3. Cavendo ue me∣tuant homines, metuendos ultro se efficiunt, & injuriam à nobis repulsam, tan∣quam aut facere aut pati necesse sit, injungimus aliis. As Caesav, who when he seised on the Common. wealth, said he was forc'd to 〈◊〉〈◊〉 by fear of his adversa∣ries. 〈◊〉〈◊〉 an ex∣cellent passage in Appian, ci∣vil•…•… 3.
Quis tibi sic timere permisit?
Lib. 55.
Inter os & os∣sam. Bann. q. 〈◊〉〈◊〉. art. 7. dub. 4. Bald. in l. mul•…•…. C. de lib. cius. Less. lib. 2. c. 9. dub. 8. Covarruv. p. 3. s. 1. n. 2.
Seneca de benef. 1. c. 11. Proxima ab his sunt sine quibus possumus quidem vivere, sed ut mors po•…•…ior sit, tanquam liber∣tas & pudicitia & mens bona. Paulus senten∣tiarum 5. t. 23. Qui latronem caedem sibi inse∣rentem, vel a∣lium quemlibet stuprum inferen∣tem occiderit, puniri non pla∣cuit. Alius enim vitam, alius pudorem publi∣co facinore de∣fendit. Augu∣stin. l. 1. de lib. arbit. Lex dat potestatem vel viatori ut latronem, ne ab eo ipse occidatur, occidat; vel cui•…•…iam viro aut faeminae, ut violenter sibi stupratorem irruentem, aut post illatum stuprum, si possit, inte•…•…i∣met.
Vide & Plutarchum Mario. Mars quo{que} deorum judicio absolutus dicitur interfecto eo qui filiae ipsius stuprum infere∣bat. Testis Apollodorus biblioth. 3. Adde insignem historiam a∣pud Greg. Turonensem lib. 9.
Cum tot ab hac anima populorum vita salus{que} Pendeat, & tantus caput hoc sibi fecerit orb's, Saevitia est voluiste mori.—— Curtius lib. 10. Sed cum tam avidè manifestis periculis offeras cor∣pus, oblitus tot civium animas trabere te in casum.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Aristot•…•…li, nimis acclo vocabulo: ita{que} 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 idem seli∣ciùs dixil.
Lib. 1. controv. illust. 18.
Resutat per∣nitiosam haue opinionem Se∣neca lib. 1. de Clem. c. 1. & lib. 4. c. 16.
Lib. 1. de Clem. c. 1.
De Offic. l. 3. cap. 3.
Lib. 6. de Be∣nef. c. 37.
† Plutarchus Pelop•…•…dae ini∣t'o: Primum virtutis opus servare servan∣tem caetera. Cassiodorus de Amicitia: Si manus oculo∣rum obsequio vibratum in aliud membrum senserit gladium imminen∣tem, ipsa suum minimè discrimen attendens, plus alii quam sibi tim•…•…s, gladium excipit. Post: Proinde qui morte propria dominos suos à mor∣te redimunt, rectè quidem hoc faciunt, si potius salutem animae suae quam liberationem alieni corporis in causa constituunt. Cum enim eis conscientia dictet, quod sidem dominis suis debeant exhibere, videtur etiam consonum rationi; quod suae vitae corporali vitam dominorum de∣beant anteferre. Deinde rursus: Dilectione ita{que}, & maximè pro salute multorum, potest quis salubriter morti suum corpus exponcre.
Navar. c. 15. n. 3. Soto lib. 5. q. 1. Sylvest. in ver∣bo homicidium 1. qu. 5.
Apollodorus lib. 2. de Lino agens: Ad The∣bas cum venis∣set, civis{que} The∣banus factus es∣set, ibi interim ab Hercule per∣cuss•…•…s cithara. Nam cum Linus feriisset Herculem, tratus Hercules mortem ei intulit, reus{que} à nonnullis factus patratae caedis, le∣git in judicio legem Rhadamanthi, qua insens pronuntiatur, si quis no∣cuerit ci qui vtm prior intulerit.
Covar. p. 3. sect. 1. de Homicid.
Navar. cap. 15. 4. Henr. de ir∣•…•…gul. c. 11. Victor de jure belli n. 5.
Dd. in l. ut vim. D. de just. & jure Sylv. in verbo Bellum, p. 2. n. 4.
In addit ad Alex. cons. 119.
Petr. Navar. l. 2. c. 3. n. 376.
Oratione in Aristocratem.
Adversus Ti∣mocratem.
Addi potest lex wisigottho∣rum l. 7. t. 1. c. 15. Et Capitu∣lare Caroli M. l. 5. c. 191. Lege Longobarda, qui noctu alienam cortem ingredi∣tur, nisi ligan∣dum se praebeat, eccidi potest.
Lessius dub. 11. num. 68.
Covarruv. d. loco.
Exod. 22. 2.
Cum perfos∣sorio instru∣mento.
L. si pignore Sect. surem. D. de furtis.
L. furtum. D. ad legem Corn. de sicar.
L. Itaque. D. ad legem Aqui∣liam.
Philo ex∣plains it well: that the place is set for more fre∣quent example sake, not that thereby always the controversy may be determi∣ned. For it may come to pass, as he discourses in his book of spe∣cial Laws, that a maid may be ravished in a Ci∣ty, her mouth being stopt, and in the field one may consent to the act.
Soto d. avt. 8. Less. dub. 11. 4. 74.
Sylv. in verbo Bellum, 2. n. 3.
Lib. 1. de lib. arb.
Hieronymus in vita Malchi: Postquam Eccle∣sia coepit habera Christianos Ma∣gistratus facta est quidem opi∣bus major, sed virtutibus mi∣not. Vide c. suscepimus, de homicidio voluntario, &c. de his, distinct. 1. Pan. c. 2. de Homicid, Less. d. loco.
Contra leges quae venantes rusticos morte puniunt, vide Gregorium Turonensem libro 10. c. 10. Joan. Sarisbur. policratici 1. cap. 4. Pet. Ble∣sensem epist. 129.
Ammianus lib. 23. Cùm i•…•…ruentibus ar∣mis externis lex una sit & perpe∣petua salutem omni ratione de∣fendere, nihil •…•…enitente vi mo∣ris. Alexauder Imp. oratione ad milites apud Herodian. 5. Injurias qui pri∣or insert nihil habet probabilis coloris: at qui libi molestos ar∣cet ex bona con∣scien•…•…ia sumit fiduciam, bo∣na{que} ei syes adest, inae quod injuriam non inserat, sed auserat.
Bald. lib. 3. de rer. divis.
Alb. Gent. l. 1. c. 13.
Cost. lib. 5. de Justit.
2 Reg. 18. 7. &c. 19.
Quid ultra tibi Romane, quid foederi, quid Diis arbi∣tris foederis de∣beo? Quem tibi tuarum irarum, quem meoru•…•… suppliciorum judicem feram? Neminem ne{que} populum, ne{que} privatum sugio.
Leuctricâ primâ.
De Principe Chalepi, qui pacem & resi∣dua tributo∣rum obtulerat Romano Ar∣gyropolo Im∣peratori, vide Zonaram: si∣mile de Cruciferis in Cromero lib. 17. De Helvetiis qui Caroh Burgundo, de curru ovium pellibus onusto, adempto{que} mercato∣ribus, satisfactionem obtulerant, vide Philippum Comminaeum, lib. 7.
Cap. 2.
Gen. 1. 29. 30. & 9. 2.
Lib. 43.
Ejus vestigi∣um mansit in Saturnalibus.
Seneca de Benef. 7. 12. Equestria om∣nium Equitum Romanorum sunt: in illis ta∣men locus meus sit proprius, quem occupavi.
De finibus, 3.
Horatius: Campestres melius Scythae, Quorum plaustra vagos rite trahunt domos, Vivunt, & rigidi Getae; Immetata quibus jugera liberas Fruges & Cererem ferunt; Nec cultur a placet longior annua, Defunctum{que} laboribus Aequali recreat sorte vicarius.
Et ab his or∣ti Pythagori∣stae. Vide Por∣ph•…•…yium, Dio∣genem Laerti∣um, Gellium, 1. 9.
Adam typus humani gene∣ris. Vide Ori∣ginem contra Celsum: ne{que} nihil huc pertinet quod Tertullia∣nus dixit libro de anima. Naturale enim rationale credendum est, quod anim•…•… à primordio sit ingenitum, à rationali videlicet auctore. Quid enim non rationale quod Deus jussae quo{que} ediderit, nedum id quod proprie afflatu suo emiserit? Irrationale autem posterius intellige idum est, ut quod acciderit ex serpentis instinctu, ipsum illud transgressionis admissum, at{que} exinde inoleverit, & coadoleverit in anima ad instar jam naturalitatis, quia statim in primordio naturae accidit.
Just. l. 2.
Seneca de iis∣dem epist. 90. Ignorantia re∣rum innocentes erant. Deinde locutus de ju∣stitia, ptuden∣tia, temperan∣tia, fort tudi∣ne, addit: Om∣nibus his virtu∣tibus habebat similia quaedam rudis vita. Jo∣sephus: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
2. Ad Somn. Scip. Sap. 3. 24.
Sic & Paulus Eph. 6. 24. qui & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 dixit, T•…•…. 2. 17.
Sanctitas su∣perior, Rabbi∣nis. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Arethae ad A∣poc. De paradiso vide Eccl. 40. 17. Et de fluminibus paradisi eundem librum 24. 35. & seq.
Prov. 3. 18. Philo de mundi creat Apocalyps. 22. 2.
Vide egregium hac de re locum lib. 2. Var∣ronis de Re rustica, ex D•…•…caearcho: & confer quae ex eodem Di∣caearcho habet Porphyrius de non esu animal um libro 4.
Jose∣phu•…•…: Quae acbor crat sol•…•…rtiae & intelligentiae. Telemachus apud Ho∣merum.—Omnia novt Quae bona, quae mala sunt, nec sum jam p•…•…vus ut ante Zeno•…•… Cittiensi prudentia, scientia bonorum & malorunt & medi rum. Est id apud Diogenem Laertium. Plutarchus de Communibus notitiis: Quid nocebit, si ablatis malis nulla erit pru∣dentia, pro eo autem aliam habeamus virtutem, quae non bonorum ae malorum, sed solorum bonorum sit scientiâ?
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 voca•…•…, Philo.
Ecclel. 8. 30.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, ut dicto loco Philo lo∣quitur.
Late hoc ex∣plicat Seneca epist. 90. quem lege: & Dicae∣a•…•…chum apud dictos jam scriptores.
Seneca natu∣ral um 3. in fine: Extinctis pariter feris in quarum homines ingenia t•…•…ansic∣rant.
Seneca dicto loco: Illis quo{que} innocentia non d•…•…bit, nisi dum novi sunt.
Praemium{que} summum ebrie∣tatis libido por∣tentosa ac ju∣cundum nefas. Seneca ib dem. Gen. 10. 11.
Ne signare qui∣dem aut par•…•…i limite campum, Fas erat. Virg. Georg. 1.
Gen. 13. & 21.
De pureis ad Oasim inter multos com∣munibus, vide Olympiodo∣rum apud Pho∣tium.
Marilibero, c. 15.
Qualem vi∣tam Scritefin∣norum nobis accurate de∣scribit Proco∣pius Gotthico∣rum 2. Adde Plinium 12. 1. Vitruvium 2. 1.
Vide quae hac de re ex Ge∣mara & Alco∣rano nobispro∣tulit honos Bri∣tanniae Selde∣nus in Thalas∣socratico.
Cicero: Ex quo, quia suum cujus{que} fit eo∣rum quae natu∣ra suerunt com∣munia, quod cui{que} obtigit id quis{que} teneat. Quod similitu∣tudine illustrat à Chrysippo reperta de sta∣d•…•…o, ub•…•… cur∣rendo l•…•…cet vincere adver∣sarium, non cum detruden∣do. Scholiastes ad Artem poet. Horatii: Quemadmodum domus aut ager sine domino communis est, occupatus vero jane proprius fit. Varro in Age modo: Terra culturae causa at∣tributa olim particulatim, ut Etruria Thuscis, Samnium Sabellis.
Cicero Offic. 3. Solon. Divitias ha•…•…uisse velim, sed non bene par∣tas non cupiam. Cicero Offic. 1. Nec vero rei amplifieatio nemini nocens vituperanda est, sed sugienda semper injuria.
Declam. 13.
Macrob. Saturn. lib. 3. c. 12.
Postquam ex agrorum discretione nata sunt jura. Ita Servius ad illud 4. Aen. Legiserae Cereri.
Et ad habi∣tandi jus. Tam soli quam coeli mensura faci∣enda est ait Pomponius, l. si opus. D. quod vi •…•…ur clam.
Ideo iugera •…•…uae possesso∣rem non ha∣bent immetata dixit Horatius.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Inquit Aristo∣teles, De Ge∣ner. l. 2. c. 2.
Ita d•…•… Ocea∣no sensit Jar∣chas apud Phi∣lostratum, 3. 11.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Apollonii ver∣ba apud Phi∣lostrat. Sulpi∣tius Apollina∣ris apud Gelt. Quid potest dici circa Oceanum esse, cum undi{que} Oceanus cir∣cumscribat om∣nes terras, & ambiat? Marcus Acilius apud Livium: Oceano, in∣quit, qui orbem terrarum amplexu finit. In Senecae Suasoriis dici∣tur Oceanus totius orbis vinculum terrarum{que} custodia: Lucano, Unda mundum coercens.
Vide Bem∣bum, Historiae 6.
Ut Echinades, quas occupando suas secit Alci∣naeon. Thucyd. lib. 2. in fine.
Covarr. c. pec∣catun•…•…. par. 2. Sect. 8.
Dd. in l. cunctos populos. l. de sum. Trin. Covar. d. loco.
L. 2. Sect. cum in eadem. D. ad l. Rhodiam. l. quo •…•…aufragium. S. quod ait. D. de incend. L. Quemadmodū. Sect. Item. D. ad L. Aquiliam. Thom. 2. 2. 66. 7. Covarr. c. peccat. 2. sect. 1. Soto l. 5. q. 3. art, 4.
Talia non procedunt nisi ex magna & satis necessaria causa. Ulp. l. Si alius. D. quod vi aut clam. Ubi sequitur exem∣plum illud de aedibus inter∣cisis a•…•…cendi incendii causa.
Quicquid co∣egit defendit. l. 4. controv. 27. Exemplis idem Seneca illustrat in ex∣cerptis contro∣versiae 4. Neces∣sitas est, quae navigia jactu exonerat: neces∣sitas est, quae ruinis intendia opprimit: necessitas est lex temporis. Cicero Philippi∣ca 11. Cassius in sy•…•…iam profectus est, alienam provinciam, si homi•…•…es legibus scriptis uterentur: his vero oppr•…•…ssis, suam lege naturae. Apud Curtium est: In communi calamitate, suam quem{que} habere for•…•…. Theodorus Priscianus vetus medicus: Expedit praegnantibus in vitae discrimine constitutis sub unius partis saepe •…•…actura salutem merc•…•… certissimans; sicut arboribus crescentium ramorum accommodatur salu∣taris abscissio, & naves pressae onere, cum gravi tempestate jactantur, solum habent ex damno remedium. Prima illa verba ad 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 pertinent, cujus instrumenti descriptio apud Galenum & Cel∣sum: ac proinde eadem vix restituenda apud Tertul. de anima.
Less. lib. 2. cap. 12. dub. 12. num. 70.
Subveniendum necessitati non instruendam pi∣gritiam.
Expedit. Cy∣ri, 5.
Possidentis melior est con∣ditio. L. 5. c. 16.
Offic. 3.
Metior est cau∣sa 〈◊〉〈◊〉 non eradentis, quam po•…•…centis •…•…ie∣num. Q. Cur∣tius. Adrian. quod. lib. 1. art. 2. c. 3. Covarr. d. loco.
Lib. 24.
De exped. Cyri. 5.
De Offic. 1.
De benef. 4.
Sympos. 7.
L. Quaedam. D. de rerum di∣vis.
Qnis v•…•…tet apposito lumen de lumine sumi; At{que} cavum vastas in mare servet aquas? Ovidius: apud quem & Lycios Latona sic alloquitur, Quid prohibetis aquas? Usus communis aquarum est?
Bald. 3. cons. 293.
Serv. ad 7. Aen. Littusq: roga∣mus innocuum. Cujus vindica∣tio, ait, nulli possit nocere. Numb. 20. & 21.
Justa bella ge∣rebantur à filils Israel contra A∣morraeos, ait Augustinus. Sic Amyntorem Orchomeni regem obnega∣tum transitum interfecit Her∣cules, notante id Apollodo∣ro. Adde le∣gem Longo∣bardicam lib. 2. tit. 54. c. 2.
Lib. q. 4. su∣per Num. ad ca. 20.
Plut. Apoph. & in vita Agesilai. Plutarch in Ly∣sand.
Hist. 4. Plutarch. in Cim.
Veneti & Ger∣manis & Gal∣lis de Marano certantibus iter praebuere. Paru∣ta II. Iidem Germanis con∣querentibus de transuu hostibus dato, ostendunt id nisi armis im∣pediri non 〈◊〉〈◊〉: quibus uti non mos sibi, nisi in hostes mani∣fes•…•…s. eod. lib. Sic & poutifex se excusat, lib. 12.
Plutarch. in vita ejus.
E•…•…emplum in exce•…•…o lega tianum 12. a∣pud Bembum 7. Hist. Ital. Vide & notabi∣lia pacta de transitu inter Fredericum Barba•…•…ossam & Isacium Ange∣lum apud Ni∣cetam l. 2. de vita ejusdem Isacii aliquot locis. In s•…•…pe rio Germanic transitum postulans de damno resorciendo cavet. Vide & Cran•…•…ziu 〈◊〉〈◊〉 Saxon c. 10. & Mendosam in Belgicis. Caesar Helve∣tiis iter •…•…r pr•…•…vinciam noluit concedere, quod homine iniquo animo exi∣stimabat non temperaturos ah injuriis & maleficio. De bello Gallko lib, 1.
Exemplum hab•…•…s Procopii Persicorum. 2.
Hoc dicebant Franci, qui in Venetia erant, Narseti Longo∣bardos secum ducenti, Got∣thicorum 4. Alia negati itineris exempla habes apud Bembum lib. 7. Italicorum. apud Parutam. l. hist. Venet. 5. & 6.
In legat. ad Caium.
Apud F•…•…orum est. l. 3. Subla∣tis Comm•…•… cus, ruoto foedere ge∣neris hamani. Servius ad Geotgic. 1. signisicat neces∣sitate q•…•…aeren∣darum rerum homines navi∣gandi peritiam ac studium repe∣risse. commune bonum erat pa∣tere Commercium maris. Ambrosius in opere de Creatione: Bonum mare tanquam hospitium fluviorum, invectio Commeatuum, quo sibi diftantes populi copulantur; quae ex Basilio sumta Hexemeri 4. Ma∣re forum mundi, insulas stationes in mari, eleganter dixit de Provid. 2. Theodoret. Adjungam his Chrysostomi ad Stebechi∣um verba: Quomodo autem satis digne quis explicet facilitatem ad mutua commercia nobis datam? Ne enim itineris longitudo impedi•…•…∣tum aliorum ad alios commeatibus adferret, breviorem viam, 〈◊〉〈◊〉 scilicet, ubi{que} terrarum disposuit Deus, ut mundum tanquam 〈◊〉〈◊〉 domum communiter inhabitantes, crebro nos invicem viserimus; & a∣pud se nata quis{que} alteri Communicans vicissita, commode accipere•…•… apud illum abundantes; ac sic exiguam tenens terrae partem, ita tanqu•…•… si teneret universam, frueretur ejus quae ubivis sunt bonis. Licet it•…•… nunc, tanquam in communi mensa convivarum, unicui{que} ea quae sibi apposita dare alteri longius accumbenti, ac contra quae apud ipsum s•…•… accipere manu tantum extenta.
Supplicib.
Vide legem Longobardicam tit. 31. c. 33. & epistolam Episcoporum ad Ludovicum Re∣gem quae inter capitula legitur Caroli Calvi, c. 14.
Libro octavo.
De thure Plinius, 12. 14. Ev••hi non po∣test, nisi per Ge∣banitas: ita{que} & horum regi penditur vect••••gal.
Etiam in pon∣tibus pro tranfi∣tu datur, inquit Seneca.
Pereg. l. 1. de jure Fisci cap. 1. num. 22. Aug. cons. 199. Zabar. cons. 38.
Lib. 16.
Vict. de Ind. rel. 2. n. 1.
Servius ad eum loc. Occupantis e∣nim est possessio littor•…•…. unde ostenduntur cru∣deles, qui etiam à communibus prohibeant. Loomedon ab Hercule occi∣sus, quod eum Trojae portu pelleret, Ser∣vio ibidem nartance.
Pl•…•…ch. Peri∣cle. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Diod. l. 12. Thucyd. 1.
Quo & illud Poctae: Contracta pisces aequora sen•…•…iunt, Factis in altum molibus.
Virgil: Socer arma Latinus habeto, Impe∣rium solemne Socer. Lib. 1. Lib. 17.
De Offic. l. 3. c. 7.
Herod. l. 1. & 4. Paus. l. 7. Oros. 7. Diod. l. 5.
Lib. 4. cap. 6.
Ad 11. An.
Orat. 〈◊〉〈◊〉.
Tac. Annal. 13.
Liv. lib. 5.
Sophocles 〈◊〉〈◊〉: M•…•…ns excitari jurejurande s•…•…let, U•…•…na diligenter evitet mala, Culpari amicis, & Deos offendere.
Ut Hesiodus dixit de Jura∣mento: —Clades Mortalib. unde Adveniunt, quoties fallaci pectore jurant.
Vide Servium in excerptis Fuldensibus ad 1. Aeneid.
Lib. 2. ubi hoc carmen Pythiae adfert idem Herodo∣tus: Ad juramento quaedam est sine nomine proles, Trunca manus, & trunca pedes: tamen impete magno Advenit, at{que} omnem vastat stirpem{que} domum{que}
U. Zachar. 5. 1, 2, 3. & inter∣pret. ejus loci Chrysostomum de Statuis 15.
Offic. 3. Est Jusiuran∣dum affirmatio religiosa: quod autem affirmate quasi Deo teste promiseris, id tenendum est. Lib. de ira Dei.
Ovid epist. Quae jurat mens est; nil conjuravimus illa. Eurip. H•…•…ppol. Jurata lingua est: mente juravi nihil. quia de re honesta •…•…acenda, nutr•…•…cis verba intellexent Hippolitus, non de adulterio & incestu. Ovid. ibidem: Consilium prudens{que} animi sententia jurat, Et nisi judicii vincula null tenent. mox: Sed si nil dedimus praeter sine pectore vocem, Verba suis frustra viribus orba tenes. Non ego juravi; legi jurantia verba: &c.
Soto lib. 8. qu. 1. art. 7. Covarr. ad c. quamvis. p. 1. 〈◊〉〈◊〉. 5.
Tullius: Quod ex animi tui sententia ju∣rasti, id non fa∣cere perjurum est. Quo & il∣lud pertinet quod apud Ho∣merum jurans Ulyssi C•…•…lypso ai•…•…: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Augustinus epist. 224. de illo locotus qui è Punicis ca∣stris egressus in castra redi∣erat, inde Ro∣mam venerat: Ita non attenderunt qui illum Senatu moverunt, quid ipse j•…•…ndo co∣gitasset, sed quid ab illo quibus juraverat exspectarent. Vide & se∣quentia. Vide ad hanc •…•…em pulcre dicta 〈◊〉〈◊〉 Trosl•…•…iano Tom. 3. Concil editionis Sirmondianae, & apu•…•… Hi•…•…cmarum in opusculo de divoitio Lothar•…•…i & Tethbergae ad interrogatio∣nem 6. ubi in hanc lententiam recte de Deo dicitur: Qui non ut juras, sed ut is jurasse putavit cui juras, audi•…•… Sic es utri{que} •…•…eus. In professione jurata Hebraeorum per Hispaniam: Si non ea inten∣tione persec•…•…ris, sicut à nobis me prositente audita at{que} intellecta sunt.
Histor. 4.
Epist. 224. Lib. 2. de sum. bono. cap. 31. 1. citatur causa 22. quaest. 5. c. quacun{que}.
Donatus ad illud in An∣dria: Quia si forte opus ad •…•…erum jureju∣randum mi•…•…i, Non opposuisse, ut liquido possim. Liquido, pure, & manifeste. Nicetas in A∣lexio fraudem Andronici. Comneni cul∣pans: Oportuit non quaesita locutione verba adulterare, sed ut concepta ea fuerant, cloqui. qui & alibi de Alexio contra sensum verba captante: ita verbis illis insi∣debat, ut musca vibici. Gravi∣ter in hanc regulam peccavit aula Arcadiana, quae effecit ut Chalcedone occideretur, is qui Constantinopolim, salute ipsi per jusjurandum promissa, venerat. Zozomen. lib. 5. Appian. de bello civili lib. 1. Pan. in c. clericus de jurejur. Sil. in verbo jurament. 4. 〈◊〉〈◊〉. 23. 6. 17. ibi. Thom. Heb. 6. 17, 18.
Ita recte verti puto illud 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, sicut aperta locutio vocatur veritas, Dan. 7. 16. & 8. 16. & 10. 1.
Jona. 4. 1.
Concil. To∣let. 8. c. 2. Ju∣rare nam{que} Dei est à seipso ordi∣nata nullatenus Convellere: paenitere verò, eadem o•…•…dinata, cū voluetit, con∣vellere. Retulit Gratianus in causam 22. q•…•… 4. explicata vero ut in tex∣tu nostro.
Senec. vide Nat. Quaest. 2. 37.
Gen. 20. 3. Exod. 32. 14. 1 Reg. 21. 29. 2 Reg. 20. 1. Es. 38. 1. Jonae 3. 5, 11.
Levit. 6. 2. Jos. 24. 27. Es. 58. 2. Ose. 1. 2. Abac. 3. 17. Job 41. 6. Ose. 9. 2.
Psal. 89. 30, 31, 32, 33, 34, 35, 36.
Ut Hippoly∣tus, de quo modo diximus.
Navar. c. 12. n. 13.
Josh. 9.
Deut. 20. 10.
Imo & ex causa Legi do internecione addita, Ex. 24. 33. Deut. 7. 4. cessat enim ea causa in illis qui praecepta fillorum Noae suscipiunt, & tributa pen∣dunt. Ita Mal∣monides, & Samson Mico∣si, & Moses de Kotzi in prae∣cepto jubente 15, & 108.
Et Gazere habitantium, Jos. 16. 10. Gergesaeos ad Christi us{que} tempora su∣perstites fuisse ex Evangelio apparet, Matt. 8. 28. nam hi ab initio se de∣diderant; Ideo omittuntur in hostium e∣numeratione. Deut. 20. 17. Jos. 9. 1.
Jos. 11. 19, 20. 2 Sam. 21. 6. De Officiis l. 3. c. 10.
Ut Brutiani olim à Romanis, Gellius 10. 3. Festus verbo Brutiani.
Nec hortaban∣tur Israelitae, nec prohibebant, ait in hac hi∣storia Jose∣phus. Seneca excerptorum 6. 2. Lex eum tenet, qui juvat exulem, non qui patiatur juvari.
De Officiis lib. 2. c. 14. Livius lib. 39.
Tractat hoc bene Ambrosius de offic. 1. & alii relati in causae 22. quae∣stionem 4. Perti∣net huc Canon 7. Concil. Hiler∣densis relati in Tom. 3. Conci∣liorum Galliae, & in Hincmari opusculis non pauca.
Philo de spe∣cial. Leg.
1 Sam. 25. Lib. 2.
Seneca: Prae∣stare fateor posse me tacitam fi∣dem, si scelere careat: interim scelus est fides. Ubi interim va∣let interdum.
Offic. 1. c. ult.
Quale Hono∣rii de pace nun∣quam facienda cum Alarico, Zozimo Harr an∣te. Vide Concil. Hilerd. d. loco. Hincmarum quo{que} dicto opusculo ad interrogatio∣nem 14.
Vide Baba Kama c. 9. sect. 10. & ib•…•… nota∣ta à doctissimo. Conslantino. Levit. 5. 6. Mat. 15. 5.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉
Ad impossibil•…•… neminem ob∣ligari.
Ambrosius ad Valentinia∣num •…•…mp. Quid est jurare, nisi ejus quem testa∣re fidei tuae prae∣sulem divinam potentiam consi∣teri? Vide for∣mulam insig∣nem Chagani Avarorum apud Menan∣drum exce•…•…p∣tis Legatio∣num.
Quaest. Ro∣man.
〈◊〉〈◊〉 Iupiter ita illum •…•…ito, ut ego hunc porcū. Liv. lib. 1. Lib. 21. Deos precatus ita se macta∣rent, ut ipse agnum mact as∣set. Sisciens fal∣lo ita me D•…•…espi∣ter ejiciat, ut ego hunc lapi∣dem.
De special. Legitus.
De Socrate Apollonius apu•…•… Philo∣stratum 6. Jurabat per ista, non ut per Deos, sed ne per Deos juraret.
Gen. 42. 15. 2 Reg. 2. 2. Adde 2 Reg. 4. 30. Cant. 2. 7.
L. Qui per D. de jurejur. Ita & Grat. causa. 22. quaest. 1. Matth. 23. 21.
Nec aliunde arbitre•…•… Orientis papulos dictos Graecis 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, quae vox apud Aeschylum & Euripidem exstat. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, apud eundem Aeschy∣lum.
Liber Sap. c. 14. ut vertit Latinus: Non enim juratorum virtus, sed pec∣cantium poena perambulat sem∣per injustorum praevaricatio∣nem. Aug. epist. ad Pub. 154.
Se•…•…m. 28. de verb. Apostoli. citatur c. ecce dico, causa 22. qu. 5.
Et qui per la∣pidem jurat, si falsum jurat, perjurus est. Non te audit lapis loquentem, sed punit Deus fallentem. Au∣gustin.
Procopius Persicor. 2. Jusjur andum quod ab homini∣bus habetur om∣nibus ultimu•…•… at{que} firmissi∣mum & fidei mutuae & ve∣racitatis pig∣nus. Diod. 'Sic. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Hoc 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vetatur Exod. 20. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Levit. 19. ut Hebraei volunt praecepto jubente 240.
Austin teach∣eth, that an oath extorted by force is also to be kept for the reverence of God. Epist. 124, 125. Ezech. 17. 12. 13. 15. Jerem. 29. 7. Tantum tempo∣ribus illis jura∣mentum valebat. Cic. Offic. 3. Tolet. l. 4. c. 22.
Offic. 3.
Tho. 2. 2. 89: art. 7. & ibi Cajet. Alex. Imol. in c. ve∣rum de jurejur. Solo lib. 8. q. 1. art. 7.
Gregoras: Perjurium Deo culpam impingit negligentiae.
Civil. 2.
Plutarchus Lysandro: Qui juramento hostem circum∣venit, is ostendit à se hostem me∣tui, Deum con∣temni.
Et ei qui regnum sine jure invasit: quomodo Oro∣ferni deposi∣tum redditum à Prienensi∣bus. Polybius & Diodorus Siculus in ex∣cerptis Peiresia∣nis.
—T. Fregisti sidem. (piam. A. Quam ne{que} dedi, ne{que} do infidels cui-
L. sicut in fine. de jurejurando c. pervenit quod est 3. de jurejur. Adde L. Lege sun. in fine D. de lege Commiss.
Silius.
Psal. 15.
Plautus Ru∣dente: Juris∣jurandi rogo gratiam facias.
Similia vide in L. si duat. Sect. Gentium. D. de excus. tut. & apud Gailium 2. ob∣serv. 144. num. 8. & de Arrest. 10. 9. & apud Azor. Instit. mo•…•…. 5. 22. q. 6. p. 1.
Lib. 2. de bello civ.
* Capitis dimi∣nutione.
C. dilecto. de praeben. Covar. in d. c. quamvis p. 2. sect. 2. n. 10.
August. epist. 240, 241.
Tho. 2. 1. qu. 89. art. 9.
C. Venientes dejurejur. c. 1. de prohibit. feud. alien. per Fed.
Lib. 4. de Bo∣nefi••. 35.
Sueton. Tib. 35. sic & in Hispania diu usurpatum notat Ferdinand. Vas∣quez de success. creat. l. 2. sect. 18. L. ult. ad mun. Molin disp. 149. c. si vero: dejurejur.
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Eum sensum vox 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 apud Hellenistas habet, ut appa∣ret I•…•…h 34. 30. Ma•…•…. 24. 51. & alibi.
ubi manifeste est figura quam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Rhetores vocant, ut in il∣lo, ex illo Cory∣don Corydon est tempore nobis. Et in al∣tero simili: Ad illum diem Memmius erat Memmius.
2 Cor. 1. 20.
2 Cor. 1. 18, 19.
Festus varias, referens senten∣tias de signifi∣catione vocis naucum, sic scribit: Qui∣dam aiunt ex Graeco 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. levem homi∣nem significa∣ri. Recte in hoc Fes•…•… loco scrip∣s•…•… is, ut saepe apud Homerum: td enim ad v•…•…∣cem nauci pro∣pius accedit.
De Decalogo.
Idem Philo de special. leg. Viri boni oratio pro juramento sit firmo, immu∣tabili, sallere nescio,
Nam & Her∣mippus Pytha∣goricus Pytha∣gorae Philoso∣phiam ab He∣braeis ductam dicebat, teste Origene contra Celsum. Idem & Josephus Heb•…•…aeus prodidit, & Ja•…•…blichus Pythagoricus.
Philo: I am •…•…nim is à quo jusjurandum exigitur, perfi∣diae est sulpe∣ctus. Sophoclis Oedipode Co∣loneae dixerat Oedipus: Nolo te adigere jure∣jurando ut ma∣lum. Respondet Theseus: Nec plus haberes in∣de quam vocis sonum. Marcus Antoninus in viri boni des∣criptione: Nec opus ha∣bens jurejuran∣do. Chrysost. de statuis 15. Si •…•…edis veracem esse eum quicum tibi negotium est, noli ei jure∣jurandi impo∣nere necessita∣tem; quod si scis fore ut mentiatur, ne coge eum & pejerare.
Colendo fidem jur•…•….
Cicero pro Roscio Comoedo: Quae poena à Diis immortalibus p•…•…∣juro, haec cadem mendaci constituta est: Non enim ex pactione verborum quibus jusjurandum comprehenditur, sed ex perfidia & malitia per quam 〈◊〉〈◊〉 tenduntur alicui, Dii immortales hominibus irasci & suc∣censere consuerunt. Solonis dictum celebratur: Ea esto probitate, u•…•… ei magis quam juramento credatu•…•…. Clemens quo{que} Alexandrinut dixit viri boni esse, Fidem promissi ostendere in Verborum ac vit•…•… stabilitate & constantia. Alexis Comicus: Mutus mei pro Jureju∣rando v•…•…lent.
Bene hoc animadvertit Chrysostomus de statuis 12. Periculosum est de suo actu jurare, multa enim nobis eripit ipsa rerum natura, subjecta casibus.
Eustachius ad illud Odys∣seae 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, sic ait: In rebus incertia non ad asseverationem Juramentum adhibendum, sed preces pro bono exitu.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Diod. lib. 16.
Pan. in c. ad Aurel. De his quae vi vel me∣tus causa. Jas. in lib. 3. 〈◊〉〈◊〉. su∣rari. D. de jure∣jur. Myns. obs. 17. Cent. 1.
Guntherus Ligurinus: N•…•…∣do jus & r•…•…ve∣rentia ve•…•…bo Re∣gis inesse solet, quovis juramine major. De Evagora Salaminis rege Isocrates: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Symmach. 10. 19. Nunquam major spes, quam in bonorum Principum sponsioue. Nicetas de Alexio Isaci fratre lib. 3. Regibus jurisjuran∣di fides ante omnia alia ponenda est.
Antoninus, Cajet. Tolet. Molina, Val∣desius, Malde∣rus. Tho. 2. 2. qu. 10. art. 10. Oldr. cons. 71. De∣cian. 3. cons. 20.
Gen. 31. 44.
Deut. 23. 7.
Deut. 7. 1.
Deut. 25: 17.
Levit. 19. 8. Deut. 22. 1. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Offic. 1. De benes. 6. 9.
Histor. 5.
Amici An∣tio•…•…i apud Diodorum Ju∣daeos accusant, Solos ex omni∣bus populis in∣sociabiles esse ex 〈◊〉〈◊〉, it a ut cae•…•…os pro ho∣stibus ducant. Sequitur de iisdem: cum nulla gente alia mensam habere communem, ne{que} bene eos aliis velle. Mox eis tribuitur, odium humani generis. Et apud Philostratum Tyanenfis de Judaeis, vitae genus adeo secretum ab humano commercis repererunt, ut ne mensam quidem cum aliis communem habeunt. Sicut & passi•…•…n Judaeis apud Josephum objicitur, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Antiq. 8. 2. Deut. 23. 6. Jud. 11. 16. 2 Sam. 10.
Idem cum Escole & Ane∣ro foedus fecit. Sic & David cum Achi & Na•…•…so: Solo∣mon cum Ae∣gyptiis: Asa cum Benada∣do.
Laus eorum est in Thargu∣me Chaldaico, in libris Mac∣cabaicis, in e∣pistola ad Hae∣braeos. Horum exemplum se∣cuti Impp. & Reges Chri∣stia•…•… foedera aut cum non Christianis, aut cum non sanè Christia∣nis f•…•…cere, Constantinus cum Gotthis & Vandalis, Justinianus cū Longobardis, &c. Adi Johan. de Carthag. l. 3. De jure Belli Rom. Pontificis, c. 1. Julius 2. Pontisex Turcis usus.
2 Paralip. 19. 2.
Gratianus Valenti patruo contra Scy∣thas opem pe∣tenti scripsit, Fas non esse so∣cialia arma jungere cum eo qui Dei sit ho∣stis. Zon tras. 2 Paralip. 25. 7.
2 Paralip. 20. 37.
2 Paralip. 16. 2, 7.
Es. 8. 6.
Lib. 6. cap. 18.
Adde exem∣plum Josue cap. 22.
Deut. 13. 13.
1 Paralip. 16. 12. Ambros. ad Roman. c. 3. Auct. imperf. ad Matth. c. 16.
2 Sam. 24.
2 Reg. 20. 13. Esa. 31. 1. 1 Reg. 3. 1.
Deut. 28. 〈◊〉〈◊〉.
Prov. 1. 15. 13. 20. 22. 24. 24. 1.
Vict. de Indis rel•…•…ct. 1. n, 15. & 17. Fra. Arius de bello n. 192. Cajet. 2. 2. qu. 40. art. 1. M•…•…lin. tract. 2. disp. 112. Matth. 5. 45. Gal. 6. 10.
Lib. 7. c. 3.
Perfecta libe∣ralitas, inquit Ambrosius of∣fic. 1. 3. fide, causa, loco, tempore com∣mendatur, ut primum oper•…•… ci•…•…ca domestic•…•…s fidei. Simile est illud Aristote∣lis; Ne{que} enim par est aequalem curam subiri pro externis & pro amicis. Nic. 2 Thess. 3. 15. 2 Cor. 6. 14, 15.
1 Cor. 10. 21.
Sylv. verbo bel∣lum. 1. 9. 3. Pan. in cap. quod super de voto.
Vide Orati∣on. Phartazae ad Lazos apud Agathiam 3. Saxo lib. 9. in verbis Ludo∣vici Regis Francor. ad Heraldum: Nullam posse animorum inter∣venirc concordiam dissona sacra complexis. Quamobrem petitorem 〈◊〉〈◊〉 primum religion i•…•… contubernio opus habere, ne{que} magnorum operum con∣s•…•…tes existere posse, quos super•…•… venerationis formula disparasset.
Ne{que} enim ratione •…•…aret illud Alex∣andridae: Ego esse vester non queam commilito, Quando nec Leges, nec mores consentiunt, Sed multis inter se intervallis discrepant.
Lib. 1.
Matth. 6. 33. Fred. lib. 4, hist. Remens. cap. 6.
Exemplum i•…•… Ma•…•…afa apud Nicetam reb•…•… Isaaci Angeli l. 2. Welfare the piety of Ema∣nuel Duke of Savoy, who when he was able to take Cyprus by the aid of the Turk, refus'd it.
1 Cor. 12. 18, 26.
Ad hanc rem vide Maria∣nam lib. 30. Parutam l. 4. Bezarum 7, & 12.
In fidelitate Feudali dici∣tur: Et si sci∣vero velle te a∣liquem juste os∣fendere, & in∣de generaliter vel specialiter fuero requisitus, meum tibi, sicut Potero, praesta•…•… auxilium.
Orat. de Mega∣lopo'i.
Polyb. l. 6.
Leuctricâ 5.
Vide de Feu∣dis lib. 4. c. 31. Libro 9.
Amicis auxi∣lia fer•…•…nda con∣tra hostes, non contra amicos, dicit Ptolo∣maeus Atheni∣sibus apud Ap∣pianum in Le∣gationum ex∣cerptis. Sylvest. in verb. bellum, 1. 7.
Vide Radevi∣cum 2. 7.
Edicto Theo∣dorici c. 138.
Lib. 6.
Dec. Cons. 407.
Dec. Cons. 260.
Lib. 1.
In fide quid senseris non quid dixer is co∣gitandum. De off. 1.
Vota inter∣pretanda ut communiter sumuntur, notant Hebraei ad Num. 30.
Liv. lib. 1. Sine dolo malo, uti{que} ea hic ho∣die rectissime in∣tellecta sunt.
Quem penes arbitrium est, & jus & norma loqueudi. Bene Proco∣pius Vandali∣corum 1. ubi de voce agit Faederatorum. Lo•…•…ga di•…•…s non solet serva•…•… voces in quibus prim•…•… datae sunt; sensu vertuntur enim res ipsae quae volunt homines, vocabula illa primitus imposita rebus nihil curantes.
Polyb. 12. Simile quod Boeoti urbem polliciti red∣dere, non stan∣tem, sed ever∣sam reddidere. Thucyd. 5. Et quod Mahu∣me•…•…s Sultana•…•…, Euboea Capta, eum dissecuit, cui caput incolume fore prom serat.
De Offic. l. 3.
Augustin. in Rhetor. ut multa nova tam à technicis & Mathematicis quàm à Philo∣phis cognomi∣nantur, accipere debemus, non tam pro solito usu consuctudi∣nis, quam pro conditione prae∣cepti.
Acad. 1.
Paradox 6.
L. 2. D. de hu qui not. insa∣mia. Lib. 3. c. 1.
Servius ad i. Aen. Arces di∣ctae ab eo quod est arceo: quod inde hostes ar∣centur, hoc est, prohibentur.
L. si uno. D. loc. conduct. Ever. in loco à subjecta materia.
Everh. in loco ab absurdo.
L. in ambig. D. de Legib.
Thucyd. 4.
Vide Guice. l. 16. ubi de pactis Car. 5. ad Mediola∣nensem Duca∣tum pertinen∣tibus sermo. Alc. 5. resp. 17.
Gl. in 〈◊〉〈◊〉 von possunt. D. de Legibus.
Bart. in lib. si is qui proemptore. D. de usuc.
Vide exem∣plum in l. cum virum c. de fi∣dei com.
Covar. 3. Var. c. 3. n. 5. Tiraq. in leg. connub. Gl. 5. n. 115.
Barb. 4. cons. 62.
Utrius{que} populi so•…•… ab utroque populo tuti sun∣to.
Lib. 21.
Which was added in the Peloponnesian peace between the Laccdaemo∣nians and Athe∣nians. Thucyd. lib. 5.
Histor. lib. 3.
Romani Sam∣nitibus, Sidi∣cinos bello pe∣tere volenti∣bus, petenti∣bus{que} ut id per Romanos fieri liceret, respon∣derunt: Nihil intercedi, quo minus Samniti populo pacis bel∣li{que} liberum arbitrium sit. Liv. lib. 8. In Antiochi soedere est: Si qui sociorum popull Romani ultro bellum inferrent Antiocho, vim ei ar∣cendi jue esto: dum ne quam urbem aut belli jure tenea•…•… aut in amicitiam recipiat. Liv. 38. Polybius in excerptis Legationum, 35.
Polyb. Hist. 3.
Pr•…•…cop. Per∣sic. 2. Dicebat Alamundarus Rex Saraccno∣rum, non viola∣ri à se quae inter Persas Roma∣nos{que} convene∣rant, quandoquidem ipse à neutra parte conventis inscriptus esset.
Liv. lib. 42.
Diodorus Si∣culus sic refert excerpto lega∣tionum 27, mansura illis Leges, regio∣nem, sacra, se∣pulcra, liberta∣tem.
L. jure gentium sect. pactum. D. de pactis.
Livius lib. 42. vide Parut. lib. 5., & 7.
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Societates: morte finiri. Dec. l. 1. cons. 22.
Vide Dionys. Hal. lib. 3.
De Appulis & Latinis idem eod. lib. De Turno & Hor∣deanio & La∣tinis idem lib. 4. Ammianus lib. 26. Persarum Rex manus Armeniis injectabat, eos ad suam diti•…•…. nem ex integro vocari vi nimia properans, sed injuste; causando quod post Joviani excessum, cum quo foedus firmaverat & pacem, nibil obstare debeat, quominus ea recupera∣ret, qua ante ad majores suos pertinu•…•…sse monstrabat. Similia de Justi∣niani pactis cum Saracenis vide apud Menundrum Protectorem. Adde quae Helvetii causantur post mortem Henrici 3. apud Thu∣anum l. 97. in an 89. Vide & insignem locum apud Camdenum in an. 72. ubi de foedere antiquo Gallorum cum Scotis.
Lib. 5. c. ult.
Lib. 3.
Lucanus de Senatu Roma∣no: Non un∣quam perdidit Ordo Mutato sua jura loco.
So Valens received not the excuse of the King of the Goths: who said, he had sent aid to Pro∣copius an In∣vader. Ammia∣nus saith, it was a most vain excuse, l. 27. There is the same hi∣story in the Greek wri∣ters, but under the name of Scythians. For so they called the Goths. So Justinian said, he would not break the League made with Gizerichus, if he warred against Gelimer, who had taken away both his Kingdom and liberty from Ilderichus the lawful King. Vide Cardinalem Tuschum PP. verbo Tyrannus, concl. 309. num. 6. Cacheranum decis. 79. n. 35.
Liv. lib. 34.
Vi∣de Albericum de Rosalo de Statutis q. 106. & 107.
At the ta∣king of New Carthage in Spain.
Plut.
Const. Galliae Tom. 3. tit. 3. constitutione anni 1583. cap. 44. vide etiam tomo constit. 3. tit. 2. constit. •…•…∣ni 1543. cap. 44.
Sanctum po∣pul•…•… per secula nomen: Papi∣nius. Sancti habentur Lega∣ti: Pompon. l. si quis D. de Legationib. Ita{que} eum qui Legatum pul∣sasset, dedi ho∣stibus quorum erant Legati, Q. Mucius respondit. ib. Sancta sunt corpora Legato∣rum: Var. l. 3. de l. l. Tuti{que} regressus Legato: Papin. Totilas apud Procopium Got. 3. Barbaris omnibus mos, Legatos venerari. Aimo∣nius: Exuit hostem, qui Legatione sungitur. Vide & Radevicumin Append. De Polonis vide Cromerum l. 20. De Turcis Leunclavium l. 8. & l. 17. De Mauris Marianam lib. 12.
Lib. 1.
Lib. 〈◊〉〈◊〉.
Cromerus 30.
Vide de Lega∣tis Civitatis To∣leti ad Regem Jo. Marianam l. 22. 8. de Flandris Crant∣zium Saxoni•…•… 12. 33.
Hist. 3. & Magnentium Zosimus lib. 2. Magnentius a∣yud animum suum volvebat deberetne Phi∣lippum irritum dimittere, an a∣pud se retinere calcato jure Le∣gationum. Is Philippus à Constantio venerat.
Annal. 3. Caesar. l. 3. de bello Civili.
Donat. ad prol. Hecyra: Oratorem audi∣re oportere j•…•… •…•…tium est.
Vide Camde∣num An. 1571. quaestionum ibi propositarum 4.
Thucyd. lib. 〈◊〉〈◊〉.
De hoc Roma∣norum more vi∣de Servium ad 7. Aeueidos. Liv. l. 41. Procop. l. 2. & 3.
Zonaras.
Lib. 4.
Sic And. Bur∣gu•…•… Caesaris Le∣gatus in Hispa∣niam non ad∣missus. Mar. l. 24. 2 Reg. 18. Liv. l. 27. Lib. 32.
Sallust.
Carolus Quin∣tus Imp. Lega∣gatos Galliae, Venetorum & Florentinorum ad bellum sibi indicendum missos deduci jussit in locum, qui à Comita∣tu suo abesset triginta milla∣ria. Guicc. l. 18. Bellaius lib. 3.
Menander Protector de Justino 2. Imp. Ille Avarorum Legatos contra j•…•…s Legationum in vinculis ha∣buit. vide Ern. Cothmannum resp. 32. n. 29. & seq. vol. 5.
Quanquam vi∣si sunt commi∣sisse ut hostium loco essent, ju•…•… tamen gentium valuit. Liv.
Fit reus mag•…•… ex aquo bono{que} quam ex jure gentium, Bomil∣car Comes ejus qui Romam side publica venerat. Sal. Jug.
Senatus facie•…•… secum attule∣rat, auctorita∣tem Reipub. Tull. Phillp. 7.
Fecit id. Steph. Poloniae Rex Moscis. Thuan. l. 73. An. 1581. Elizabetha Sco∣to & Hispano Camd Anno 71. & 84.
Sic Carolus 5. Legato Ducis Mediolanensis ut subditi sui, imperavit ne à Comitatu suo abscederet. Guicciard. in∣dicat. jam loc.
Dion. Ex∣cerpt. Lega∣tionum: Cum juvenes quidam Legati à Car∣thagine Romam venissent ibi{que} contumeliose quaedam fecis∣sent, missi sunt Carthaginem, traditi{que} Car∣thaginiensibus: ab his verò ni∣hil illis nocitum est, sed dimissi sunt incolumes.
Pelopidas in vincula conje∣ctus ab Alexan∣dro Phere••, quod Legatus cum es∣set Thessalos ad libertatem conci∣taret. Plutarch. & lat. Scriptor vitae Pelopidae.
Vide Serra∣num in Henri∣co. 4.
Vide Iliados O.
Sic interpre∣tandum quod Theodahatus Gotthus, Ju∣stiniani Lega∣tis dicit apud Procopium Gotthicorum, 1. Sanctum apud homines Legato∣rum nomen, ple∣num{que} honoris. Sed hoc jus Le∣gati sibi inter∣dum servant, quandiu sua mo∣destia Legatio∣nis dignitatem tuentur. Ita enim existimant homines fas esse vel interficere Legatum, si is in Principem ad quem mittitur, sit injuriosus, aut alienum matrimonium violet. Legati ve∣rò, cum ostendissent longissime se abesse ab adulterii suspicione, quorum ne exitus quidem sine custode essent, addunt prudenter: Si Legatus ea dixerit, quae audivit à Principe qui ipsum misit, ea si non sunt commoda, praestare non ipse debet culpam, sed qui eum misit: Ipsi quippe nihil aliud concessum est, quam Ministerio mandato fungi. Vide 〈◊〉〈◊〉 Camdenum indicato jam loco an. 1571.
Offic. 3.
Liv. l. 27. Idem l. 4.
Lib. 10.
Siculi Athe∣niensium socii Legatos Syra∣cusan•…•…um mis∣sos ad Civitates alias cepere. Thucyd. lib. 7. De Gallorum ad Turcam Legatis quos in Pado Hispani cepere & occiderunt, vide judicis Perutae lib. 11. Bezari l. 21. De Flandriae Civitatum Legatis ad Gal∣•…•…um cap•…•…is à Maximiliano, Crantzium Saxonic. 12. Laudatur Belisa∣rii Clementia, quod Gelimeris Legatis in Hispaniam missis, & ab Hispa∣nia reversis Carhaginem, quae jam facta erat Romanorum, pepercerit. Pro∣cop. Vandal. 1.
Thucyd. l. 2. Appian. de bello Illyrico.
Xenoph. lib. 4. de exped. Cyri. Arrian. lib. 2. Liv. lib. 23.
Vide Appian. in excerptis. Legationum n. 19.
Aliud sit 〈◊〉〈◊〉 quis extra fines suos insidias p•…•…∣nat 〈◊〉〈◊〉 ali•…•…∣nu, 〈◊〉〈◊〉 enim jus gentium viola∣retur. Et hoc continetur in Thessalorum o∣ratione contra Philippum apud Livium. Justin. lib. 29.
Pomponius l. ult. D. de Legatis. Si q•…•…s Legatum hostium pulsas∣set, contra jus gentium id co∣missum esse exi∣stimatur, quia sancti habentur legati. Et Ta∣cit. hoc jus vo∣cat. Hostium jus & sacra le∣gationis & fas gentium. An. 1. Cic. 1. Verri∣na: Noune Le∣gati inter hostes incolumes esse debent? Sen. de Ira. Violavit lega∣tiones rupto gentium jure. Livio, caedes ruptura jus gentium, 〈◊〉〈◊〉 causa nesanda, cades impia dicitur, in historia Legatorum quos Fi∣denates occiderunt. Donatus ad illud Eunuchi: convenire & col∣loqui. Sic pronunciandum est, ut quasi dicat, liceat per te, miles, quod •…•…iam inter hostes & in bello licet. vide loca producta LXV.
Diodorus Sic. in excerp∣tis Peiresia∣nis: Dixit Sci∣pio non esse id faciendum quod ipsi in Carthagi∣niensibus accu∣sarent. Et Ro∣mani ipsi Legatos jam comperto Carthaginiensium facto, dimise∣runt. Vide Appian. Constantius Titianum à Magnentio ad se mis∣sum remisit, quanquam Philippum à Constantio missum ad se re∣tinebat Magnentius. Zosim. l. 2. Vide & historias apud Crome∣rum lib. 19. & 21. & Parutam de Legatis Venetis in itinere in Galliā retentis l. 7.
Appian de bello Pun. Liv. l. 30. Val. M. l. 6. c. 7.
Rex, facisne me tu regium nun∣tium populi Ro∣mani Quiritiū? vasa comites{que} mcos?
Vide Fraxini Oanaei Episto∣las p. 75. & •…•…79.
〈◊〉〈◊〉 Henri∣co 4.
Distingui fermè hac in re solent crimina. Vide Parutam lib. 10. ubi Rex Gallioe hanc ob causam iratus pacatur. Vide eund. lib. 11.
De benef. 3. 15.
Civil. 1. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 pro eodem di∣xit Herodotus Clio.
Lib. 4.
Lib. 15.
Stob. de Le∣gibus.
De Lepib. 8. Mor. Nic. 8. 15.
Mor. 9. lib. 1.
Romani ob id bellum suscepe∣re in Senonas. Appianus ex∣cerpto Legatio∣num 4. & 10. in Illyrios & Ligures: Poly∣bius excerpto Legationum 125. & 134. in Issios: Dion. exc. leg. 2. in Corinthios: Livius lib. 2. in Tarentinos: Dionys. Hal. exc. Leg. 4. Francorum & Germanorum exempla habes apud Aimonium lib. 3. c. 61. & 88. & Withikindum l. 3.
2 Sam. 10. Vide Chrysost. ad Stagirium lib. 3.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Isidorus Pelu∣siota. Apud Aelianum est, Cum mortuum condi ipsa impe∣ret communis natura. Idem alibi vocat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, terram & sepulturam, hominibus cun∣ctis communia & ex aequo de∣bita. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, dixit Euri∣pides, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Aristides, Lucanus homi∣num ritus, 〈◊〉〈◊〉 Leges & mundi soedera Papinius, sortis humanae com∣mercium Taci∣tus, spem com∣munem Orator Lysias. Sophocles Aja∣ce. idem 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 dixit in An∣tigone.
Panathenaico.
Pacto non praelio obten∣tum à Theba∣nis jus sepeli∣endi vult Plu∣tatch. Theseo; at praelio, Pau∣sanias Atticis.
Panegeryco, He∣•…•…nae e•…•…comio, Plataica oratio∣ne: Herodotus quo{que} Calliope. Diodorus Siculus bistoriarum 4. Xenophon hist. Graecae 6. & Lysias ea quae est in honorem sepultorum: po∣stremo Aristides in Panathenaico, qui bellum hoc susceptum a•…•…∣pro communi natura homi∣num.
Apud Papi∣nium,—bello cogendus & ar∣mis, In mores hominem{que} Crcon. Homerus dixerat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Idem Iliados 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Jovem & Deos Achilli iratos fuisse dicit ob malè tra∣ctatum corpus Hectoris. Eandum ob causam impius Eteocles, Pa∣pinio.
Plin. Histor. natur. 7. 54. ubi & hoc: Se∣pultus intelligi∣tur quoquo modo conditus: huma∣tus vero, bumo contectus.
Tunc morte raptos Imperatum Legibus Mandare terrae, pulverem{que} insparg•…•…re Nocdum s•…•…, ne darentur conspici Abominanda signa pastus pristini.
Job 10. 9. Philo in Flac∣cum: Proprium bominibus lo∣cum natura ter∣ram tribuit, nec vivis tantum, sed & mortuu, ut eadem quae primos suscepit natales, suscipiat & ex hac vita exitum. Attamen, fi∣cut nullum est in homine factum laudabile, cujus non vestigium in alio aliquo animantium genere Deus posuerit, ita & in hac re evenit. De formicis Plinius lib. 11. 30. Sepeliuntur inter se viven∣tium solae, praeter hominem. At ipse de Delphinis l. 9. 8. Conspecti{que} jam defunctum portantes, ne laceraretur à belluis. Et de apibus Virg. Tum corpora luce carentum Exportant tectis & tristia funera ducun•…•…. Servius: cum exsequiali scilicet pompa.
Eccles. 12. 7. Euripides ex persona Thes•…•… in supplicibus. I am sinite terrae •…•…uos 〈◊◊〉〈◊◊〉 Res unde quae{que} sumserat primordium Eo recipitur: spiritus coelo redit Corpus{que} terrae: jure nec enim mancupi, Sed brevis ad aevi tempus utendum datur: Mox terra repetit ipsa quod nutriverat. Lucretius similiter de terra: Omniparent eadem rerum est commune se∣pulcrum. Cicero de Legibus 2. ex Xenophonte: Redditur terrae corpus, & 〈◊〉〈◊〉 locatum ac situm, quasi operimento matris obducitur.
Quidnam sibi saxa cavata, Quid pulcra volunt monumēta? Nisi quod res creditur illis, Non mortua, sed data somno.
Vide Vatici∣nium de Jero∣boami postori∣rate impoenam peccatorum ejus. 1 Reg. 14. 11. & Tertul∣lianum de resurrectione. De Aegistho Homerus Odyss. Ergo nec leviter Gleham 〈◊◊〉〈◊◊〉, Illius volucres lacer•…•…ent ossa cones{que}. De Aegistho loquitur, quem, ut adulterum & regni invasorem, Argivi infepultum ab∣jecerant; cujus tamen reliquias humanior terrae dedit Orestes, ut mox dicetur. Menelaus de Ajace in Sophocle: Sed ille arenis jactus in pallentibus, Gratum marinis pabulum alitibus dabit. Sed hoe quo{que} ibi prohibet Ulysses, prudentiae exemplar. Sophocles Antigone in ipsius Antigones laudem: Illa obsitum 〈◊〉〈◊〉 germanum suum, Non insepultum sivit, alitibus feris Canibus{que} fieri pabulum mordacibus. Appianus Civilium primo, de interfectis jussu Marii: Nec cuiquam licebat quenquam interfectorum sepelire, sed viros tam egreglos lace a∣bant aves & canes. Ammianus Marcell. l. 17. de Juliano: Sollici∣tus{que} ne dirae volucres consumerent corpora peremptorum sine discretio•…•… 〈◊〉〈◊〉 humari mandavit. Apud Virgilium legimus: —Non te optima mater Condet humo, patriove onerabit membra sepulcro; Alitibus linquere seris.—
Simili modo Agathias d•…•… moris esse, Ob∣tegere puerperit pudorem. It a quam nihil natura simus, apparet in ortu & interitu. Quod ut significarent sapientes Hebraei, vetuere ne Plebeiae aut summae fortunae qui essent, aliusmodi fasciis involverentur, aut modo na∣ti aut mortui.
Idem Sup∣plicib. Pecere vobis si quid Ar∣givi malè, Ce∣cidere: in hostes ista vindicta est satis. Et Virg. Nullum cum victis certamen & aethere cassis. Quam senten∣tentiam citans scriptor ad Herennium addit: Nam quod malorum est extremum acciditittis jam. Papinius, ——bellavimus: esto: Sed cecidere odia & tristes mors obruit iras.
Belli hoc jus 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocat Appianus: Belli Commercia Philo. Idem in Flaccum: Etiam qui in bello occubue∣runt, eos homi∣nes solent ad sepulturam da∣re, illi quidem quibus benitatis & humanitatis plus est, suopte impendio: alit vero, qui edia & in mortuos extendunt, sub pactis dantes corpora, ne ca∣reant eorum quae mos imperat ho∣nore ultimo. De eadem re a∣gens Lucanus hominum ri∣tus in hoste servandos di∣xit.
Josephus in leg b. Sepeliantur & hostes. Agamemnon Trojanos sepelit Iliad. n. Antigonus Pyrrhum apud Plutarchum. Vide eundem in vita Thesei.
Plutarchus Marcello. Credas, inquit Silius Italicus, Si∣donium cecedisse ducem.
Atticis.
Idem ex jure Pontificio Ro∣mano Servius notat.
Hune oro de∣fende furorem, est apud Vir∣gilium. Interpretatur Servius, Inimicorum iram & post fala sae∣vire cupientem. Apud Claudianum:—bominem{que} cruentus Exit, & tenuem caesis i•…•…vidit arenam. Diodorus Siculus: Ferinum est bellum gerere cum morluis, qui ejus∣dem naturae suerint.
Numb. 25. 4: Deut. 21. 23. 2 Sam. 21. 26.
Odyss. 3. L. 1. de cap. pu∣nit.
L. 2. c. de Relig. Hujus Roma∣norum moris mentio est a∣pud Philonem contra Flac∣cum.
Id 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 di∣xit Josephus in morte Ju∣daeorum Regis Alexandri. Adde Quintil•…•… declam. 4.
Apud Papin. Theseus Cre∣ontem sic allo∣quitur:—Vade atradaturus Supplicia, ex∣tremi{que} tamen secure Sepul∣chri.
Jos. Antiq. l 13. c. 13. & Gorion.
Lib. 3. de Bel. Jud. cap. 25. Heges. l. 3. c. 17. Gell. l. 15. c. 10.
Servius ad 12. Aen. Sane sciendum quod cautum fuerat in Pontificali∣bus libris, ut qui laqueo vitam finiisset insepultus abjiceretur. •…•…de •…•…∣rito ait informis Lethi, quasi mortis infamissimae. Ergo cum ni∣nihil sit bac morte desormius, poetam etiam pro Reginae dignitate dixisse accipiamus. Cassius autem Hemina ait Tarquinium Superbum, cum cloacas facere populum coegisset, & ob hanc injuriam multi se suspendio necarent, jussisse corpora eorum cruci affigi. Tunc primum turpe habi∣tumest, mortem sibi consciscere.
Plin. lib. 36. cap. 15.
Nic. 5. 5.
Athenis Aes∣chinis tempo∣re ejus qui se interfecisset manus scorsim à corpore se∣peliebatur. Aeschin. in Ctesiph. Adde Hegesip∣pum lib. 3. cap. 17. Orat. 65. Vide Stob. •…•…it. 126. & So∣phoc. Ajace.
Et Philoso∣phorum non pauci extra Stoicos. Sene∣ca Epistola 70. Invenies etiam professos sapientiam, qui vim asferendam vitae suae ne∣gent, & nefas judicent ipsum interemptorem sui sieri. Expe∣ctandum esse exitum quem natura decrevit. Procopius Gotthicorum 4. Violentus vi∣tae exitus res inutilis & plena insipientis impe∣tus, & illa in mortem ferens audacia, consilio cum careat, pru∣dentibus judi∣catur immerito sibi sortitudinis nomen usurpare. Tum vero & il∣lud cogitandum, ne in Deum si∣tis ingrati.
Idem Arabibus visu•…•… non minus quam Indis & Persis, è Jobo discas c. 3. 21.
Cult. l. 5.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Variasse Hebraeorum super hac quaestione sententias cognoscas ex Josepho, ubi de morte Pha∣saelis & de deliberatione Herodis agitur. Judaei ad Petronium, Philone recitante: Miscebimus inter nos sanguinem, morte sponte sum∣ta; tum mortuis ista imperentur. Ne Deus quidem nos culpet in duo in∣tentos, ut & Imperatorem revereamur, & sacratas Leges custodiamus. Id autem ita demum efficere dabitur, si abeamus hinc contemta vita mi∣nime vitali.
1 Sam. 31. 4.
2 Macc. 14. 37.
Vide Euseh.
Narrat Ci∣cero nobilissi∣mas Virgines se in puteos abjecisse, & morte volun∣taria nefariam tu picudinem depulisse, Ora∣tione de Pro vinciis Consu∣laribus. Ta le est & quod de Milesiis virginibus memorat Hieronymus adver∣sus Jovinianum; & epigramma vetus Anthologiae l. 3. Tit. de •…•…∣venibus incipiens 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Narrant & Judaei faeminam in navi ad stuprum expetitam, cum à marito quaesiisset, an & ma∣ri mersa corpora essent resurrectura, is{que} id affirmasset, jecisse se in mare. Christianarum autem mulierum plurima sanè habemus exempla. Feminarum Antiochenarum sub Dicclesiano; Sophro∣niae sub Maxentio, in martyro ogiis, Zonaca, Sexto Aurelio. A∣lias Antiochenas sub Chosroe addit Procopius Persicorum 〈◊〉〈◊〉. Laudat Virgines, quae morte pudorem servarant, Ambro•…•…. Hieronymus in Commentariis ad finem capitis primi Jonae: Vnde & in persecutionibus non licet mihi propria perire manu, abs{que} 〈◊〉〈◊〉 castitas periclitatur.
Lib. de Civit. Dei c. 26. epist. 61. ad Dul•…•…. & lib. 2. c. 13. contra 2. Gaudent. epist. Cui addere licet Chrysostomum, Gal. 1. 4. & Concilium Aurelianense 3. Oblationes desunctorum qui 〈◊〉〈◊〉 aliquo crimine fuerint interempti, recipi debere censemus, si 〈◊〉〈◊〉 ipsi sibi mortem probentur propriis manibus intulisse. Et tamen is ipse August. l. 1. de Civit. Dei cap. 16. Ac per hoc & quae se occiderant, ne quicquam hujusmodi paterentur, quis humanus affectus eis ig∣nosc•…•…? Capitulare autem Franc•…•…c. lib. 6. 70. De eo qui se•…•…∣sum occidit, aut laqueo se suspendit, consideratum est, ut si quis co•…•…∣tiens v•…•… elecmosynam dare, tribuat, & orationes in Psalmodiis faciat: Oblationibus tamen & Missis ipsi careant; quia incomprehensibilia s•…•… judicia Dei & profunditatem Consilii ejus nemo potest investigart.
Diod. lib. 16. Rhodiaca.
At Nicetas l. 3. vitae Ale∣xii fratris I∣saaci, cum nar∣rasset mortem Joannis Com∣neni Crassi, qui per seditio∣nem impe∣rium affecta∣verat, sic lo∣quitur: Post corpus inde ablatum, canibus & avibus esca ponitur: quod ab humanitate alienum ac paenè ferinum omnibus videbatur.
Antiphonte.
Lib. de exilio
Et Hierocles 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Lactantii di∣ctum est, de ira Dei c. 17. Non exiguo falluntur errore, qui cen∣suram sive hu∣manam sive di∣vinam acerbi∣tatis & malitiae nomine infa∣mant, putantes nocentem dici oportere, qui nocentes afficit poena. Conve∣n•…•…t huc & il∣lud Belisarii apud Proco∣plum Vandal. 1. Primum ju∣stitiae documen∣tum erit poena exacta de inju∣stis intersectori∣bus. Adde A∣gath. l. 5. ubi de Anatolio.
Augustin: La∣tet culpa, ubi non latet poena.
August. Si non reddit fa∣ciendo quod de∣bet, reddet pa∣tiendo quod debet. Philo: Peccare dum fe∣stinatis, ad poe∣nas ferendas fe∣stinatis.
Tho. 2. 2. qu. 64. art. 1. & lb. Cajet. Sic & Moses Mai∣mon ad Deut. 33. 7. Pol. 14.
Jo. 8. 7.
Pertinet huc & Ambrosi lo∣cus serm. 20. in Psal. Beali immac. item Cassiodori 6. 21.
Plato de Leg. Sen. de clem.
Cassiodor. de Amicit. Quod si manus una casu aliquo for∣te laedat alte∣ram, illa quae laesa est non re∣percutit, nec se erigit in vindi∣ctam.
Gorgia.
Moses Maim. in directore du∣bitantium l. 2. c. 13. & Rab. Iram. ad Prov. 16. 4.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Deut. 28. 63. Es. 1. 24. Prov. 1. 26.
Th. 2. 2. q. 108. Silv. in verb. vindicta.
Sen. lib. 2. de ira. c. 32. Idem, c. 22. Exsequar quia oportet, non quia dolet. Arist. 7. de repub. c. 13.
Mimus: Laeso doloris reme∣dium inimici dolor. Cicero 〈◊〉〈◊〉 a•…•… poe∣na mitigari. Idem dicit Plutarchu•…•… ex Simonide.
Inde ista Homcrica: —illum sera prenderat ira item: Esserat ipse animum magnum sibi pectore in allo.
Inde 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 bilem ex∣tinguere,
Sen. de ira l. 2. c. 26. His irasci quam stultum est, quae iram nostram nec meruerunt, nec sentiunt. Brasiliani, feri homines, de ferro, ita ut de homine, se vindicant.
Vide quae in hanc rem Sene∣ca de ira l. 1. cap. 5.
Plato Gorgia. vide de eo Theo∣doretum lib. 20. curationis.
Lib. 2. de ira. cap. 32.
Sir R. S.
Seneca de ira l. 1. 3. Atqui iracundissimi infantes senes{que} & agri sunt, & invalidum omne natura queru∣lum est.
Terent. Hecyra. Pueri inter sese quam pro levibus noxiis iras gerunt. Quapropter? quia enim qui eos gubernat animus infirmum gerunt. Itidem mulieres sunt ferme ut pueri, levi sententia.
Tria haec 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, emen∣dationem, sa∣tisfactionem, exemplum, e∣tiam Chrysoft. ponit in 1. ad Cor. 11.
Rhet. 1. c. 10.
Plutarchus quo{que} eam non omisit, cum dixit: Quae facinus statim subse∣quuntur poenae non modo in po∣sterum inhibene delinquendi au∣daciam, sed & injuria affectos maximè conso∣lantur.
Sen. de ira l. 5. Quemadmo∣dum quaedam hostilia detorta, ut corrigamus, adurimus, & adactis cuneis, non ut franga∣mus, sed ut ex∣plicemus elidi∣mus: sic ingen∣tia vitia prava, dolore corporis animi{que} corrigi∣mus. Annal. 3.
Plautus Trin. Amicum casti∣gare ob meritam noxiam, Immu∣ne est facinus, verum in aetate utile.
Vide August. Enchlr. c. 72.
Mar. 14. 21.
De ira.
Jambl. Quo∣modo suppurat•…•… melius est uri quam sic mane∣re, ita improbo mori quam vi∣vere.
1 John 5. 16.
Etiam hujus rei in feris imago quae∣dam. Leo in a∣dulterae poenam co•…•…surgit. Plin. Hist. nac. 8. 16.
De Invent. 2.
Mithridates apud Justinum lib. 38 Adver∣sus latronem, st nequeant pro sa∣lute, pro ultione tamen sua, om∣nes ferrum strin∣gere. Hoc ip∣sum 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocat in vita Arati Plu∣tarchus. Apud eundem Ro∣mulus de Ta∣tio occiso á Laurencibus: Caedem caede pensatam. Idem Plut. de Man∣tinensibus ma∣le tractatis ab Achaeis: Et haec quidem ul∣tionis •…•…quitatem in 〈◊〉〈◊〉 hahebant. Belisarius a∣pud Procopi∣um Vandalic. 1. Natu•…•…alis e∣nim est laesi ho∣minis in eum qui vim intulit inimicitia.
Orat. cont. Ari∣stocrat.
Orat. pro qua∣tuor.
De offic. l. 1. c. 40. Epist. 29. Eundem vide orat. contra Symmachum. Vide Joseph. An∣tiqu. 13. 1. de vindicata Johannis morte.
Sic & Liv. lib. 1. Cum Laurentes jure gentium agerent. Nec aliter a∣pud Tacitum Civilis: Egre∣gium pretium laboris cepi ne∣cem sratris & vincula mea, & saevissimas hujus exercitus voces, quibus ad supplicium petitus jure gentium poe•…•…as reposco. Hist. 4.
Lucretius: Acrius ex ira quod enim se quis{que} parabat ulcisci, quam nunc conc•…•…ssum est legibus aequis, Hanc ob rem est homines pertaesum vi colere aequum.
Tindareus adversus O∣rest. apud Eu∣rip. Irata si uxor conjugem occi∣det suum, Hanc ultor ipse filius tradet neci, Et rursus illo geni∣tus hanc caedem nova Caede ex∣piabit, sine quo stabunt mala? Aristid. orat. de pace. Quis enim Graecorum erit reliquus si propter eos qui jamperiere, su∣perstites alli per∣petuo idem malorum serent. L. nulli C. de Jud. Cassiod. ep. 1. l. 4.
Vell. Pat. lib. 2. & Plut. in Caes.
An umbros in Italia signi∣ficatos volunt? Apud Afrorum multos idem moris fuisse te∣stis Leo Afer lib. 2.
Apud Stob. de Legibus.
Gotthos suos corrigens Rex Theodericus apud Cassio∣dorum 3. 23. Remove consue∣tudiues abomi∣nanter inolitas, verbis ibi potius non armis res iractetur. & 24. Car ad mono∣machiam recur∣ritis? quid opus est homini lin∣gua, si causam manus agit ar∣mata? Tracho∣ni•…•…is in O∣riente: Mos omnibus modis ultionem sumere de propinquo∣rum homicldis. Sen. 1. de Cle∣mentia. 203.
Odiss. 6.
L. 2. q. 10. super Joh.
L. de rep. 12.
Plin. l. 8. c. 16.
Polybius Leones ob hominum ap∣petitum crucisi∣xos vidit, quia coeteri metu poe∣nae similis ab∣sterrcrentur ea∣dem noxa.
Quoniam C. ad L. Flaviam. l. 1. C. ad L. Jul. rep.
Praec. pol. Idem Pelopi∣da; Prima ea∣dem{que} antiquis∣sima lex eum qui servare po∣test ei qui salute opus habet na∣turaliter magi∣stratum desig∣nat. Et Philo∣pomene: Sus∣cepit cives suos, qui ne{que} legum ne{que} suffragio∣runt tempus ex∣pectaverant: sed ipsum sequeban∣tur naturae lege, quae semper po tiorem vult im∣perare deteriori∣bus. Similia a∣pud cum habes sine vitae F. Flaminii. Scriptor de causis corrupti eloqu. de oratoribus agens: Hi ne privati quietem sine potestate 〈◊〉〈◊〉 cum & populum & Scnalum consilio & auctoritate regerent. Chrysost 2. ad Cor. 7. 13 de Mose: Etiam antequam manu populum edu•…•…, dux erat ipsis sactis. Valde igitur stul è Hebraeus ille ei dixit, Q•…•… constituit nobis principem ac judicem? quid dicis? Facta vides, & 〈◊〉〈◊〉 nomine sacis controversiam? velut si quis medicum videat optimè suo•…•… tem ac sic opitulantem aegro corporis membro, deinde ei dicat, Quia 〈◊〉〈◊〉 constituit medicum, quis sacare praecepit? Ars, mi bone vir, & 〈◊〉〈◊〉 tuus: sic & Mosem sua peritia talem fecit. Nam & imperare non dig∣nitas tantum est, sed & ars, & quidem omnium artium sublim 〈◊〉〈◊〉. Tractat idem scriptor hoc ipsum argumentum ad Eph. 3. in fine Tua, inquit, injustitia, tuaseritas me constituit Principem & Judi∣cem. Euripides Iphigenia in Aulide: Mente qui prudente pollit, 〈◊〉〈◊〉 magistratum gerit.
Lib. 2. de ira.
Cl. Neap. a pud Porphy∣rium l. 1. de non esu anim. Serpentem & Scorpium, etiam si ipsi ab iis non impetamur, oc∣cidimus, ne cui noceant alii, & vindictam hanc praestamus hu∣mano generi. Py∣thagoras apud Ovidium Me∣tam. 15.—No∣strum{que} petentia lethum corpora Missa neci sale va pietate fate∣mur.
Deut. 13. 9. Adde locum Joseph. 12. 8. Mosem Maim. au 13. artic. & dirctoris lib. 3. c. 41.
Numb. 25. vid. 1. Macc. 2. 24, 26. Macc. 2.
Act. 6. 57. Act. 23. 13.
Cujus & hoc in libro de sa∣crificantibus: Puniendus talis ut host is publi∣cus omnium, spreta qualio cun{que} cum eo necessitudine, ejus{que} suasiones vulgandae omni∣bus pietatem a∣mantibus, ut si∣ne mora accur∣rant undi{que} ad expetendum de viro improbo supplicium, firmè crede•…•… sanctam esse rem ejusmodi hominis intersiciendi appetitum. Et alter lo∣cus non minus insignis circa finem de Monarchia.
Servrum fi∣liorum{que} pecca∣ta non coercere, peccatum est. Lactant. de ira Dei cap. 18. ubi plura ad hane rem.
Levit. 19. 17.
Exod. 23. 4, 5.
Oculum pro oculo, quae, si dici potest, in∣justorum justitia est. Au∣gustin. in ex∣pos. Psal. 108. citatus C. sed differentiae 23. quaest. 3.
Advers. Mar∣cion. 4. Idem lib. de patient. Christus gra∣tiam legi super∣ducens ampli∣andae adimplen∣dàe{que} legi adju∣tricem suam pa∣tientiam praese∣cit, quod ea sola ad justitiae do∣ctrinam retro defuisset.
Vide Orige∣nem adversus Celsum.
Matth. 6. 14, 15.
Claud.—ferus est, Legum{que} videtur Vindi∣ctam praestare sibi.
Cicero de of∣fic. Justitiae primum munus est, ne cui noceat, nisi lacessitus injuria.
Vide Mosem Maim. citatum ab erudissimo Constantino lib. de damno dato, cap. 3. s. 7.
Eph. 4. 12. Col. 3. 13. Lu. 17. 3.
Lex Wisi∣gotth. 6. 13.
Vide Con∣stantinum d. c. 8. s. 1. Lib. 20. c. 1.
Aug. l. 2. de adulterinis conjug. Si au∣tem (quod ve∣rius dicitur) non licet homini Christiano adul∣teram conjugem occidere, sed tantum dimit∣te•…•…e.
Gail. de pa∣ce pub. 8. 3. Lib. 6. c. 10.
Justinus, Nolu∣mus, ait, eos puniri qui in nos calumniantur. Sufficit illis sua pravitas, & re∣rum bonarum ignorantia. Ejusdem est: Ne minimum quidem ulcisci quemquam vo∣lentes, ut novus legis canditor praecipit.
Exod. 21. 14. Num. 33. 14, 37. Deut. 29. 13.
Pharisaeorum circa poenas 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 prae∣dicat Josephus. Hinc tot Le∣gum ad publl∣cas paenas pertinentium exceptiones, & illud, ut ubi omnino mors inferenda est, infetatur quam levissimè; quod est in Talmude titulo Ketuboth.
Augustinus quast. Evangel. lib. 1. qu. 10.
Act. 17. 36. Rom. 2. 25. Act. 13. 38.
Heb. 2. 23. 4. 10. 29. Matth. 5. 21, 22, 28.
Chrysostomus idem dicit tum in ora•…•…ione ad Patrem fide∣lem, tum se∣cunda de jeju∣nio.
Peccator ante veniam d•…•…stere se debet. Ter∣tull. de p•…•…nit. Ambr in Psal. 37. Chrysost. in 1. Cor. hom. 28. Adde 2. Cor. 7. 9, & 10.
Hieronym. in c. 1. in Naum. Ag•…•…th. l. 5. ex Platone. Synes. ep. 44.
Hieronym. ad Damas. cit. in c. importuna De paenit. Dist. 1.
Cujus & hoc est de Benef. 7. 10. Ingeniu ta∣libus vitae exi∣tus remedium est; optimum{que} est abire ei, qui ad se nunquam rediturus est.
Lib. 1. de ira c. 16. c. 15.
Yea, and of the Romans, great part, of whom no man, after the Por∣cian Law, could be put to death or bea∣ten, except a Traitor, or one condem∣ned by the people.
Lib. 1 Lib. 11. Lib. 12. 1.
Vide apud Nicaetum lib. 1. juramentum Isaaci Angeli Idem Joannis Comneni Im∣perium sine morte cujusquam fuisse ait. Vide de Zenone Malchum; & Augu∣gustini epist. 158. & 159. ad Marcellinum Comitem. Et Chry∣sost. 5. adv. Judaeos, ubi de Caini paena.
Ad opera maxime. Augustin. epist. 160. Alicui utili operi integra eorum membra inser∣viant. Vide & Nectarii epist. ad Augustin. quae est 201.
Chrysost. de Paenitentia 8. Optimum ita{que}, ut dixi, etiam privatas lites antervertere be∣nignis transa∣ctionibus, ut a∣micum dirigas ad id quod lites sibi propos•…•…tum habent: publi∣corum autem judiciorum ac∣cusationes, non dicam transi∣gendo abrumpe∣re, sed nunquam tas incipere.
An sapienti capessenda sit respublica, vi∣de Senecam de otio Sa∣pientis.
Matth. 7. 1. 〈◊〉〈◊〉
Covar. 4. decr. 12. c. 7. n. 8. F•…•…rt. tract. de ust. fine legum, illat 11. Vasq. lib. 4. contr. illust. cap. 8.
Vide August. de Civitate Dei citatum C. qui∣cun{que}, causa 23. quaest. 8.
Agathias I. 4. Non solis duci∣bus alus{que} po∣tentibus innasci solet at{que} immo∣rari bene agendi propositum, sed cui{que} volen'i & licet & honc∣stum est ejus in qua vivit Reipublicae malis Commoveri, & public•…•… utilitates pro suis viribus promovere. vide suprà LXXXVII.
Quaedam sunt reipab. laesae ad quorum pronuntiatronem oculi •…•…∣cium. Quintil. declamat. 260.
Cogitationis pae∣nam neminem mereri.
Ita Sayrus I. 3. Thelaur. c. 16.
De Mose lib. 3. addi potest Aben. Esdras ad Jobum 5. 7. & Rabbinus Israel c. 8.
De ira l. 2. c. 31. Bjusdem est eodem de ira l. c. 14. Ne∣mo invenitur, qui se possit ab∣solvere. cap. 9. dixerat; Inter caetera mortali∣tatis incommoda, & haec est caligo mentium, nec tantum necessitors cr∣randi, sed errorum amor. Lib. 3. & 20. Omnes mali sumus. De clem. 1. 8. Peccavimus omnes: aliigravia, alii leviora, &c. Procopius Gotth. 3. in orat. Belisarii; Nihil plane del nquere ne{que} hominis est, ne{que} id rerum fert natura. Adde Basilium Imp. c. 50.
L. 11. Idem in fragmentis, Nonoportet per calumnias traducere infirmitatem huma∣ne naturae.
Seneca de ira l. 2. c. 18. Morum varie∣tates, mixtura elementorum fa∣•…•…it, & proinde in aliguos magis incumbunt in genia, prout ali∣cujus elemen•…•…i major vis abun∣davit. Ahbi haec ea vocat, quae attri•…•…uit co•…•…ditio •…•…as∣cendi & cor∣poris tempera∣tura. epist. 1•…•….
Vide c. ine∣briaverunt, cau∣sa 15. qu. 1.
Lib. 3. de be∣nef. c. 6. & 7.
Idem Sen. d•…•… ben. l. 1. c. 1. Ita demum tur∣pe est non redde∣re (beneficia nempe) si & licet. Pater Sen. contr. 5. 34. Dicis mihi: Hoc sacere non oportet. Huic rei aestimatio immensa est; ita{que} nulla vindicta est. August. l. 2. c. 83. cont. Petll. Sic igitur quod adversus vos Le∣ges consti•…•… sunt, non eis benefacere cogimini, sed male facere probibe∣mini.
Est hoc 4. Contr. simile eodem libro contr. 24. Non spera∣mus ut probet, sed ut dimittat. Et in Excerptis, 6. 8. Multum interest objurges an punias. Sunt enim quaedam, ut Cimone ait Plutarchus; deliquia magi•…•… virtutis alicujus, quam ex vitio crimina.
Ut videre est in fragmento a pud Stobaeum titulo de Ma∣gistratu, in o∣ratione Tullii pro Mutaena, & in fine libro∣rum Sen. de Clementia. Contra eos bene Diodorus Sic. in fragmentis, Venia m•…•…lior paenae exactione. Pro Christia∣nis sententiam dicet Cypr. ep. 52. Alia est Philosophorum & Stoicorum ratio, qui di∣cunt omnia pec∣cata paria esse, & virum gra∣vem non facile flect•…•… oportere. Inter Christianos autem & Philo∣sophos Pluri∣mum distat.
Julian. de Eusebia: Non enim si qui sunt meriti male tra∣ctari, puniri{que}, 〈◊〉〈◊〉 perire utique necesse est.
Ad Quintum frat. 1. 21.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. 12. 19.
Cujus sensus partem prio∣rem sic expres∣sit Cicero, ad Q. fr. 1. 2. Via juris ejus∣modi est qui∣busdam in rebus ut nihil sit loci gratiae: Poste∣riorem sie Dion Prusaeen∣sis o•…•…atione ad Alexandri∣nos; Boni prae∣sidis est, ignos∣cere. Favorino ea quae dicitur Clementia apud homines est tem∣pestiva relaxa∣tio de summo sure.
Joseph: Par∣ricidium & na∣turam & vitam •…•…manam vio∣lat, it a ut qui id non puni•…•…t & ipse in naturam peccat. Clementiam liberum habere arbitrium. Sen.
Verissime dixit scrip∣tor ad Herennium; Vitiosum est controversiam intendere propter •…•…∣minum mutationem. L. 2. quod Aristoteles dixerat: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Top. 24.
Symmachus lib. 3. epist. 63. Alia enim est cō∣ditio magistra∣tuum, quorum corruplae viden∣tur esse senten∣tia, si sint legi∣bus mitiores; alia divorum Principum po∣testas, quos de∣cet acrimoniam severi juris in∣fl•…•…ctere. Idem discrimen in∣ter Regem & Judicem est apud Themi∣stium o•…•…at. 5.
Multa ad hanc rem uti∣lla congessit Gratian. cau∣sa. 1. qu. 7.
Levit. 4. & 5.
Luc. 23. 34. Heb. 4. 15. 5. 2.
Historiam vide apud Zo∣naram.
1 Tim. 1. 13.
Lib. 1. c. 46.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Lib. 1. c. 26. & cap. 46.
Gell. l. 7. c. 3.
Seneca pater in Controver∣siis: Scelera quo{que}, quamvis citra exitum subsederunt, puniuntur. Injuriam qui facturus est, jan facit, ait alter Seneca. Non exitus rerum sed consilia Legibus v•…•…∣dicari, Cice•…•…o dixit pro Milone Periandri dictum erat; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Val. Max. de Cn. Sergio Silo damnato: Non sactum tunc, sed animus in quaestionem deductus est: plus{que} voluisse peccare nocuit, quam non peccasse pro∣suit. Sen. de benef. l. 5. c. 14. Latroest etiam antequam manus in∣quinet: quia ad occidendum jam armatus est, & habet spoliandi at{que} intersiciendi voluntatem. Liv. lib. 42.
Chrysosto∣mus ad Rom. 3. 13. & ad c. 7. multa habet in hanc rem.
Mar. 10. 19:
Diodorus Si∣cul. de eo sic loquitur: Ho∣mines injuslos & Reges inso∣lentes tollendo beat as reddebat •…•…ivitates. Alibi dixit: Orbem obiit paenas de iniquis expetens. Dio P•…•…usaeensis de eodem: Homines malos puniebat, & superborum reg∣na destruebat, aut in alios transferebat. Aristides in Panathenaico ait •…•…um suscepta communi humani gener is cura meruisse in Deosref•…•…rri. Philo de Legatione: Hercules purgavit terras & maria, certamin•…•… subiens bominibus omnibus partim necessaria, partim perutilia, ut tol∣leret hominum animantium{que} aliorum ea quae exitia•…•…ia aut noxia essent.
Ibidem di∣centi Feciali: Ten'ergo sevit omnibus genitor parem? Respon∣det Theseus: Injuriosis. Nam bonos non tangi∣mus. Valer. Max. de co∣dem: Quic∣quid ubi{que} mon∣stri aut sceleris fuit, virtute ani∣mi ac robore dextrae commi∣nuit. Lib. 5. cap. 3. Plu∣tarch. in ejus vitae: Pessimis tyrannis Graeciam liberavit. Item: •…•…il ipse passus injuriae, pro aliis in homines malos impetum sumebat.
Plu∣tarch. de fortuna Alex.
Hoc quo{que} Scythas Alexander dedocuit.
Vide Dionys. Hal. narrantem ut Hercules hunc morem alit{que} multa abstulerit, in beneficiis suis Graecos à barbaris non distin∣guens. Romanorum non minora in genus humanum merita prae∣d cat Plinius, 30. 1. Non satis aestimari potest, quantum Romans debeatur, qui sustulere monstra; in quibus hominem occidere religiosis∣simum erat, mandi vero etiam saluberrimum. Sic Justinianus prin∣cipibus Abasgorum edixit ne subditorum pueros castrarent. Pro∣copius meminit Gotthicorum 4. & Zonaras, Leone Isauro. Et Inchae in Peruana Reges v•…•…cinos populos, qui moniti non pare∣rent, vi coegere absistere ab incestis, à marium cum maribus concubitu, à comistione hominum, aliis{que} id genus facinoribus: at{que} eo modo imperium sibi pararunt omnium quae usquam legi∣mus, excepta religione, justissimum,
Seneca 7. de Benef. Si non p•…•…ion meam impugnat, sed suae; gravis est, & sepositus à mea genie suam exagitat, abscidit nihilominus illum tanta pravitas animi. Augustinus l. 5. de Civitate Dei; Opinantur scelera facienda de∣ce•…•…i, qualia si aliqua terrae Civitas decerneret, decrevisselve, genere 〈◊◊〉〈◊◊〉 fuerat eve•…•…enda.
Innocent. c. quod super his. de voto Arch. Flor. 3. p. tit. 22. sect. 5.
Vide Jose∣phum Acostam de procuranda Indorum salu∣te l. 2. c. 4.
Sylv. in verbo Papa. sect. 7. Vict. Rel. 1. de Indis n. 40. Vasq. contr. ill. lib. 1. cap. 25.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Plutarch.
Asterius A∣maseae Episco∣pus: Qui hu∣jus tantum se∣culi leges con∣dentibus obtem∣perant, impuni∣tam relinquunt meretricii. licentium. Ad∣de locum Hie∣ronymi ad O∣ceanum. L. si Adulte∣rium. sect. fra∣tres. D. ad L. Jul. de adult.
〈◊〉〈◊〉; gens hoc legem naturae putat, quod didicit. Hieron. 2. adv. Jovin. Matth. 10 15. Luc. 12. 47, 48. Nicom. 7.
Justin. 38. Non de•…•…cta regum illos, sed vires ac majestatem insequi.
C. peccatum. p. 2. sect. 10.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Est id in constit. praeferentibus nomen Cle∣mentis. Cypri∣anus epist. 30. Omnes enim nos decet pro corpo∣re totius Eccle∣si•…•…, cujus per varias quas{que} provincias, membra digesta sunt, excubare. Et de Unitate Ecclesiae: Epis∣copatus unus est, cujus à singulis in solidum pars tenetur. Exem∣pla hujus curae universalis passim apud Cyprianum. Illustre imprimis epist. 67. Adde Chrysostom. in laudibus S. Eustachii.
Plutarchus similiter, coa∣gulum omnis socieratis, & fundamentum legislationis. Philoni quo{que} est, Efficacissi∣mum amato∣rium & vincu∣lum indissolu∣bile benevolae a∣micitiae, unius Dei cultus. Idem de forti∣tudine: Summa ac maxima con∣cordiae causa, de uno Deo sensus: ex quo velut sonte procedit insolubilis & animos inter se vinciens amicilia. Josephus autem contra Appio∣nem libro: Eandem de Deo habere sententiam, nihil{que} vita & institu∣tis inter se discrepare pulcherrimam in animis hominum concordiam ex∣citat.
Silius Italicus: Heu primae scelerum causae mortalibus aegris, Naturam nescire Dei.—So Josephus against Appian rendring the reasons why many Commonwealths were ill established, saith, It was because their Founders did not at first see the true nature of God, and through ignorance of him, and of true Religion, were not able to settle good Orders in the State.
To the knowledge whereof Justin Martyr inviting the Emperours, saith, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, This will be a work truly royal. Adde quae ba•…•… Covar•…•…. in c. possessor. sect. 10.
Arist. pol. 7.
Philo de creat. Ma∣gistr.
Cyri instit. Lib. 8.
Cic. lib. 1. de natura Deo∣rum. Idem de finib. 4. Justi∣tiam adfert, cum cognitum ha∣beas quod sit summi rectoris & Domini nu∣men, quod con∣silium, quae vo∣luntas.
Seneca epist. 97. Illic dissen tiamus cum E∣picuro, ubi d cit nihil justum esse natura, & cri∣mina vitanda esse, quia vita∣ri metus non pos∣fit.
Arist. 5. de repub. cap. 11. L. 9. de placitis Hipp. & Plat.
Odyss. 6. & 9.
Philo v'ta Abrahami: Ejusdem est na∣turae Religiosum esse & hominum amantem: apud eundem spectan∣tur pietas in Deum, & in ho∣mines justitia.
Lactantius: Si ergo pietas est cognoscere Deum, cujus cognitionis haec suma est ut cum col•…•…s, ignorat uti{que} justitiam, qui religionem Dei non tenet. Quomodo enim potest eam nosse, qui unde oritur ignorat? Inst. lib. 5. Idem, De ira Dei. Religioni est pro•…•…ria Justitia. Lib. 4. C. de Haereticu.
Laudatus Clementi Ale∣xandrino. Ex illo videtur hoc promsisse Seneca l. 7. c. 30. nat. qu. Ipse qui ea tractat, qui condidit, quitos tum hoc fundavit, dedit{que} circase, major{que} est pars operis sui ac me∣lior, effugit oculos, cogitatione visendus est.
Dicit haec apud Phi∣lonem Rex Agrippa.
Diodorus Siculus de Mose: Simulacrun non constituit, eo quod Deum non crederet humana forma esse. Tacitus: Judaeimente sola unum{que} numen intelligunt: profanos qui Deûm Imi∣gines mortalibus mate•…•…s in speciem hominum es•…•…gunt.
De hoc Nu∣mae instituto vide & Dionys. Halicarn.
Scriptor res∣pons. ad Or∣thodoxos, ad quaest. 69. Ut ergo memoria mundi conditi inter homines servaretur, ideo voluit Deus sep∣tenarium nume∣rum in sacris li∣teris eminere cae∣teris honoratio∣rem. Vide & quae praece∣dunt.
Topic. 1. 9.
Topic. 2. 4.
Tertull. adv. Marc. Anima à primordio, conscientia Dei, dos est. Pittas naturalis, Dio∣doro Siculo in Fragmentis. Philo deUnius Imperio: Nihil artem praese∣rens casu oritur. Maximam au∣tem artem mun∣dua praesert, te∣•…•…atur{que} à sum∣me perito sum∣me{que} pe•…•…cto se fabricatum. No∣titia, qua Deum esse credimus, hinc ortum ha∣bet. Tertull. adv. Marcion. 1. Nos defendimus Deum primum nat•…•… cognoscendum, deinde doctrina recognoscendum: Natura ex operibus: doctrina ex 〈◊〉〈◊〉. Cyprian. de Idol. van. Haec est sum•…•… delicti, nolle agnoscere quem ignor are non possis. Julianus ad Heraeli∣tum: Omnes aute doctrinam numen aliquod esse persuasi sumus: cor•…•…s∣piciendum, ad eum p•…•…operandum: credo{que} sic animos nostros se habere ad Deum, ut visu praedita ad Lucem.
Decaelo l. 3.
Delegib. 10.
Heb. 11. 6.
Similiter Cicero, de nat. deorum. l. 1. Sunt Philosophi, & fuerunt, qui nullam habere ceuserent humanarum 〈◊〉〈◊〉 procurationem deos. Quorum si vera sententia est, quae potest esse pietas, quae sanctitas, quae religio? Haec enim omnia pure & caste tri∣bu•…•…da Deorum it a numini sunt, si animadvertuntur ab his, & si est aliquid à Diis immortalibus humane geueri tributum.
Seneca epist. 95. Primus est Deorum cultus, Deos credere: deinde reddere illis majestatem suam, reddere bonitatem, sine qua nulla ma∣jestas est.
L. veluti. de •…•…stic. & jure.
De •…•…at. Deor. lib. 1. & 2. de Invent.
Dion Pru∣saeensis orat. 41. vocat, per∣suasionem quae misit hominibus communiter omnibus, non minus B•…•…∣ber is quam Graecis necessariam, ac naturalem cunctis ratione •…•…∣tibus. Et paulo post: Persuasionem valde robustam ac semp•…•…, apud omnes gentes & coeptam & permanentem. Seneca epist. 〈◊〉〈◊〉 Tanqu•…•… Deos esse inter alia sic colligimus, quod omnibus de Diis opi∣nis 〈◊〉〈◊〉: nec ulla gens usquam est adeo contra leges mores{que} proje∣cta, ut non aliquos Deos credat. Idem de Benef. 4. 4. Nec in hunc furorem omnes mortales consensissent alloquendi surda numina & ineffi∣cace•…•… Deos. Adde Platonem Protagora, & 10. de leg. & pulchra quae habet Jamblichus post principium de mysteriis Aegyptio∣rum, ubi Deum nosse it a homini ait proprium, ut hinnitum equo.
Aelian. lib. 9.
Moxus Lydus Crambi urbis inhabitatoyes obsidione captos mersit, omnes 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, ut qui Deum nul∣lum nossent co∣lerentve. Nico∣laus Damas∣cenus in ex∣cerptis Peire∣sianis.
Deut. 13. 16. Deut. 13. 23. Deut. 17. 2.
Philo ad De∣calogum de ta∣libus: Su•…•…t au∣tem alii quorum ulterius impie∣tas procedis, qui ne paria quidem Deo & operibus ejus tribuunt, sed quicquid ho∣no•…•…s excogitari potest his exhi∣bent, illud com∣munissimum bo∣num null•…•… me∣moratione d•…•…g∣nantes, id prae∣tereunt quod so∣lū meminisse de∣buerant, sponte miseri sibi accer∣sentes quaesi am oblivionem. Sic locum Deute∣ronomii inter∣pretatur Mai∣monides Di∣rectore 3. 41. Legat. ad Caium.
Academ. 4.
Sacrifices sent by the Kings of E∣gypt, •…•…y Au∣gustus, by Ti∣ber us, were admitted into their Temple by the Jews: as Josephus and Philo tell us.
The son of Hystaspes, fa∣ther of Xerxes. Justin. lib. 19. Plutarch. A∣pophth. & de sera uum. vind. Idem quaest. Roman. 12.
Cap. de Juda•…•… dist. 45.
Josephus ira cense•…•…: Debere quem{que} libero a∣nimi propo•…•…to Deum colere, non vi coactum.
Servius ad initium 3. Aen. Quo•…•…iescum{que} ratio vel judi∣cium non appa∣ret, sic visum interponitur. Sic & Donatus ad act. 5. sc. 2. Eun. at{que} in eum sensum poni Hebraeum 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 notat Abarbaniel.
Rom. 8. 15. Heb. 2. 15. Jo. 6. 67. Lu. 9. 54. Matth. 13. 24. Tractat hoc Gregorius Naz. orat. Cum assumtus est à patre; & Beda lib. 26. Isidorus de Sisebuto Rege; Qui in initio regni sui Judaeos ad fidem Christianam permo∣vens, amulationem quidem Dei habuit, sed non secundum sci•…•…iam; potestate enim compulit, quos provocare oportuit fidei ratione. Tran∣scripsit hoc in historiam Rodericus 2. 13. Posteriores in Hispania Reges eodem nomine culpant Osorius & Mariana, quem vide 26, 14. 27, 5.
Epist. ad solitarios.
Cyprianus epist. 55. Conversus ad Apostolos suos dixit, Nunquid & vos vultis ire? servans sc. Legem, qua ho∣mo libertati suae relictus & in arbitrio proprio constitutus, sibi∣met ipse vel mor∣tem appetit, vel salutem.
Cyprianus de idolorum vanitate hunc locum respi∣ciens: Per or∣bem vero disci∣puli, magistro & Deo monente diffusi, precepta Dei in salutem darent, ab erro∣re tenebrarum ad viam lucis adducerent, caecos & ignaros ad 〈◊〉〈◊〉 nem veritatis ocularent. Ac, ne esset probatio minus solida & de 〈◊〉〈◊〉 delicata confessio, per tormenta, per cruces, per multa poenarum 〈◊〉〈◊〉 tentantur.
Ad eundem Justinianum Epistolam Theodaliadi 〈◊〉〈◊〉 in Cassiodoro 10. 26.
The same Author truly calls Christian Religion abso∣lute & simple. And Zozimus a Pagan too saith, the de∣sign of it is to free men from all wickedness and impiety. And frequently it was acknowledged by the Infidels to be a Sect injurious 〈◊〉〈◊〉 offensive to none. Tertull. Scorpiaco. Justin. Apol. 2. We do you much service, and help you to keep your Empire quier, teaching, that no man can conceal himself from God, whether he do good or evil; and that according to his deeds every man shall enter into life or death eternal. 〈◊〉〈◊〉 lib. 2. speaking of the Christian Assemblies, saith, nothing was heard in them, but what may make men meek and modest, and charitable to all their Bre∣thren.
Bonus vir Caius Seius, tantum quod Christianus. Tertull. A∣pol. cap. 3. & 1. adv. Nat. cap. 4.
In legatione. Similiter & li∣bro de Sacrifi∣ca•…•…tibus facun∣de ostendit quan∣tum synagogae distent à Paga∣•…•… mysteriis. Locus uter{que} dignus inspici. Simile habet li∣bro altero centra Appionem Jo∣sephus.
Vide Zona∣ram. Sim le il∣lud apud Augustinum epist. 50. Maximianus Episcopus Vagi•…•… auxilium petiit ab Imperatore Christiano contra hostes Ecclesiae, non tam sui ulciscendi causa, quam tuendae Ecclesiae sibi creditae. Rela∣tum est in causam 23. qu. 3.
Vide Menandrum protecto∣rem.
Tho. 2. 2. 108.
Sequitur hoc Chrysostom. in 1 Cor. 2. ubi vero consuetudo in dogmate in∣ciderit, multo fit immobilior. Nihil enim est quod non faci∣lius homo mutet quam ea quae religionis sunt.
Lib. de util. credendi. Locus refertur in caus. 24 qu. 3. Au∣stin adds, that he that believs heretick, see∣meth not to him the same thing with an heretick. He∣resy is the madness of a more obstinate mind. Vide eundem epist. 162.
Scriptor re∣sponsorum ad orthodoxos quaest. 4. Aper∣tum est ex cu∣piditate gloria aut ex amulatu qui primos re∣pertores agita∣verit, 〈◊〉〈◊〉 omnes existendi originem cepisse. Chrysostom ad Gal. 45. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 The desire of dominion is the mother of heresy.
Agathias in the first of his histories, where he had spoken of the absurd su∣perstirious of the Almens, addeth They are more worthy of plry than hatred, for their errors. For they do not stumble and wan∣der willingly, but being desirous of good & deceived in judging, what they have approved thy hold fast, whatsoever it is.
Chrysostom in his Homily against Ana∣thematizers: That which is secret let him alone securely judge, who is Judge of the whole world; to whom alone is known the measure of mens know∣ledge, and the quantity of their faith. For tel me, whence can we know, with what words a man will accuse or excuse himself in that day, when God shall judge the secrets of men? His Judgments are inscrutable and his ways past finding out.
Epist. ad solit.
Deservedly do we hate the Authors of so ill an example among Christians. See their crueltics in Eusebius of the life of Constantin, lib. 1. 5, 38. Socrates lib. 4. 29. Proco∣pius Vandal. 1. & Gotth. 1. and Victor Uticensis. Epiphanius of the Semi-arians; They vex the Teachers of truth, and confute them not with words but swords, and have destroyed, not one, but many Towns and Countries. Of such Gregory Bishop of Rome to the Bishop of Constantinople; It is a new and •…•…∣heard of way of preaching, which beats men into belief.
Ad quem lo∣cum vide Hie∣nymum citatum c. qui secundum causa 23. quaest. 4.
Errantis paenam esse doceri.
Seneca in Tragoedia: Quis nomen unquam sceteris errori dedit? Et de ira, 14. Non est prudentis errantes odisse; alioquin ipse sibi •…•…∣dio erit. M. Anton us l 9. Si potes, meliora doce: si non potis, me∣mento in hoc tibi lenitatem datam. Ipsi dii lenes suut talibus. Chry∣sost. ad Eph. 4. 17. Eum qui ignorat ne{que} malo affici, de{que} accus•…•… cportet; sed aequum est, ut discat quae ignorat. Valentinianus, laudance Ammiano Marcellino l. 30. Nec quenquam inquietavit, ne{que} ut 〈◊〉〈◊〉 coleretur imperavit, aut illud: nec interdictis minacibus subjectorun cervicem ad id quod ipse coluit inclinabat, sed intemeratas reliquit b•…•… partes, ut reperit.
Vide de hac re Egregia apud Cyrillum libro contra Julia∣num 5. & 6. Solon, as Plu∣tarch in his life relates, prevailed with the Amphi∣ctyones to make war up∣on the Cyr∣rhaeans, be∣cause they had robbed the Temple of Delphi. And so are they rightly punisht who falsly take upon them the name of Pro∣phets. Consule Agathiam l. 5.
Thucic l. 1.
Diodo•…•…. l. 16.
Justin. l. 8.
7. de benef. 7.
3. De Benef. 6.
De Leg. 10.
Tertull. de resurr. carnis; Dicent enim mi∣nistors & socios babere arbitrium ministrandi at{que} sociandi, & po∣testatum suae vo∣luntatis in u∣trum{que}, homines sc. & ipsos, ic∣eirco cum aucto∣ribus merita communicare, quibus operam Sponce accom∣modant.
Saulus manibus omnium lapidabat. Aug serm. 5. de san∣ctis cap. 4. similia, form. 1. & 14.
Institut. de furt. sect. in∣terdum. Edicto Theuderici, c. 120.
Hieronym. super parah. Non fur solum, sed ille reus tenetur, qui surti conscius, quae ente posses∣sore, non indicat. Chrysost. de statuis 14. Non enim persuri, sed & qui conscii cum sint, caelant perjuria, criminis tenentur.
Vide Instit, & edict. Theud. d. 1. Androcides ex lege Artica, Qui cons•…•… dedit eum non minus voena teneri, quam qui manu rem effec•…•…. Ne•…•… enim sine consiliores facta fuisset, ait Arist. de Poet. c. 17.
Chry∣sost. 1. ad Rom. circa fin. Pejor peccante qui peccantem Laudat. Qui facinorosum adstans hortatur, pro faciente habetur lege Longo∣gobardica l. 1. c. 9. sect. 25.
Chrysost. 1. adversus Judaeos: Sic non li modo qui furtum fecere, sed & qui prohibere cum possent non pro∣hi•…•…, puniuntur, & quidem pari uter{que} poena. Sic cum qui sanari agrorum prohibet, teneri quasi vulnerasset, ait idem Chrysosto∣mus, ad Cor. cap. 7.
Chrysost. de stat. 3. Non commune fuisse delictum Civi∣tatis, sed extra∣neorum & adve∣narum, qui cuncta tomeri∣tateac legum ignorantia quàm ratione facerent. Ne{que} vero aequum, ut ob paucorum im∣peritiam tanta urbs ever •…•…etur, & poenam ser∣rent culpae exor∣tes. Ammian. l. 30. de Quadis: Nihil ex com∣muni mente pro∣cerum gentis de∣lictum asseve∣rantes in nostros.
Par est delin∣quere, & delin∣quentes non pro∣hibere, ait Agapetus ad Justinian. Quisquis patitur peccare peccantem, is vires subministrat audaciae, air Arnobius. Qui desinit obviare cum potest, consentit: Augustinus. Egregie Proclus ad illud Hesiodi, sape luit populus paenas unius iniqui: ait, 〈◊〉〈◊〉 qui cum prohibere possit, non prohibet unius malitiam.
So is this ex∣plained by Cy∣ril in his 5. book against Julian. Chry∣sostom in his first homily to the Antiochi∣ans involves them all in the crime: The act, saith he, was done by a few, the guilt is laid upon all. We are all in fear and ex∣pect punish∣ment for their offense: which if we had pre∣vented, and driven them out of the Ci∣ty, we had been now in safety. Liv. lib. 1.
Lib. 1.
Thucyd. l. 1. & 6. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Dion saith in the life of Galba, It is sufficient for private men not to offend, but Rulers must take care that no other do transgress.
Plu∣tarch. Cimone.
Rhodiacà. Polyb. lib. 2.
For the knowledge of the cause ought to pre∣cede the dedi∣tion. It is not meet to give up men un∣try'd, saith Plutarch in his Romulus. The King of Scotland in Camden An. 85. saith to Q. Elizabeth, that he would transmit Fer∣nihust and the Chancellor too, if they were convi∣cted by a fair tryal.
Dedere.
Lucullus re∣quir'd Mithri∣dates of Ti∣granes, and for denyal made war upon him. Appian & Plut.
Plutarchus Camillo. Livius lib. 28.
Diodor. l. 16. Val. Max. l. 6. c. 6.
Vide foedus inder reges Angliae & Da∣niae, memoratum Pontano de Mari. Caerites apud Livium 〈◊〉〈◊〉 manis significant lib. 7. Transeuntes agmine infesto per agrum s•…•… Tarquinienses cum praeter viam nihil petiissent, quosdam traxisse 〈◊◊〉〈◊◊〉 ejus quae fibi crimini detur•…•… Comites: Eos, seu dedi placeat, dedere•…•… paratos esse, seu supplicio affici, datures poenas. Quintil. de∣clam •…•…55. Proximos existimo eos transsugis, à quibus transfugae re∣cipi•…•….
L. ult. D. de Legat.
L. 1. & 2. de Orat. Top. & pro A. Caecin∣na.
Val. l. 6. c. 3.
L. cos qui D. de captiv.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Polybio & Malcho in excerpt. Leg.
L. 13. biblioth.
Oraculum vetus: Carum occidists, dum vis succ•…•…ere: nullum Crimen habes; manus est tibi parior, ac suit ante.
Duo illa fortunam & injuriam Menander optime distinxit: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Philo de Judice: Misericordia infortuniis debetur: at qui deliberata scientia male agit, won infelix est, sed injusties. Sic M. Antonious mentem vult inspici ut noris ignorantia in aliquo an consilium sue∣rit. Sic 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, quae ex ignorantia aut oblivione veniunt; & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 quae ex consulto fiunt, distinguit Totilas apud p o∣cop. Got. 3.
Deut. 19. 1. 23. 15. Exod. 21. 14. 1 Reg. 2. 29. 2 Reg. 11. 13.
De spec. leg.
Pipin recei∣ved and would not deliver those that sled to him out of Newstria op∣prest by tyran∣ny. Fredegarius in reb. Pipini 1188. And Lu∣dov. cus Pius the Emperor received those that fled to him from the Roman Church, as appears by his Decree, Anno 817.
Plutarch. qu. Gr. 32.
Which Ma∣riana ascribes to the Arragonians. l. 20. 13. The Gep dae in Procopius had rather all perish than give up Ildigisales to the Romans. Got. 4.
Aristid. Panathen. Idem alibi. His qui•…•… locorum infelices sun', communis eis una est felicit as, bonitas civi∣tatis Atheniensis, per quam salutis compotes fiunt. Apud Xenopho•…•… rent Patrocles Phliasius in orat. quam Athenis habuit: Laudab•…•… banc urbem quod omnes aut injuria affectos, aut sibi praemetu•…•…s, 〈◊◊〉〈◊◊〉 fugiss•…•…nt, auxilii compotes fieri intellexeram. Idem sensus est à Epistola Démosthenis pro Lycu gi liberis. Et vide Sophoc. 〈◊〉〈◊〉 di•…•…. Col.
Advers. Leocr.
Annal. 3.
Sophocles Ione;—Non enim tangi decet, Manu nocente numina; at justum fuit Piis patere Templa contra injurias.
In Lusitania Ferdinand Lord Chamber∣lain, was taken by force out of the Church, and burnt, for forcing a noble Virgin. Ma∣riana lib. 21. Vide & de Asylis librum Viri inagni Pauli Veneti, Societatis servorum quae dicitur.
Herod. lib. 1.
Livius lib. 22 lib. 37.
So Rudol∣phus 2. Empe∣rour remov'd from him Christopher Sbovius. Thuan. A. 1585. Q. Elizabeth answers the Scots, that she would either render Both∣well, or send him out of England. Cam∣den. A. 1593.
As Simler relates in the League of the Helvetii with the Mediola∣nenses. The Leagues of the English with the French, ap∣pointed re∣bells and fugi∣tives to be yiel∣ded; with the Burgundians, to be expel∣led. Camden Anno 1600.
Sic Demo∣phon ad Le∣gatum Euris∣theos apud Sophoclem; Si crimen istis aliquot hospitibus struis, Jus impetrabis: vi quidem binc non 〈◊〉〈◊〉.
Eadem dicit & Chrysosto∣mus de hac re, in 17. de sta∣tuis. In eos∣dem Antioche∣nos paria olim constituerat M. Antoninus Philosophus ut testis est Capitolinus: & in Byzantinos Severus, demto Thea∣tro, thermis, honore, ornamentis{que} omnibus; sed & ipsa urbs Perinthiis data; vide Herodian. 2.
Aristot. 7. pol. cap. 13.
Orat. de sedi∣tione Antioch.
Wherefore Julian in the praise of Con∣stantius attri∣butes to him another cause of war, and saith, No war, accounted just, was ever waged for such cause, not by the Grecians against the Trojans, nor by the Mace∣donians a∣gainst the Per∣sians. For they pursued not old crimes with late pu∣nishment of the children; but set upon those that in∣jured the po∣sterity of men wel-deserving, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
L. Flumina sect. ult. de dam. inf.
Praeposterum esse, ante nos locupletes dici, quàm acquis••••∣rimus. L. pre∣tia D. ad l. Falc.
Lib. 2. epist. 11. & 19.
L. cum ratio. D. de bonis dam.
Sponde, nox∣a praesto est.
This is plain by the words of Ruben to Jacob, Gen. 42. 37. and in Josephus 2. Antiq. c. 3. Hos va••••s 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 anima vicarios vocat E••ropius Caligulâ. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, 〈◊〉〈◊〉 sponsores Diodorus Siculus in excerp. Peir••sianis. Chrysost. a•• Gal. ••. Sicut homine aliquo ad mortem damnato, innocens alter pro ill•• se morti devovens illum supplicio liberat. Augustin. epist. 54. ad Macedonium: Et aliquando qui causa fuit mortis potius in culpa est, quam ille qui occidit. Velut fi quispiam decipiat fide••ussorem suum, at{que} ille pro isto legitimum supplicium luat.
De qua vide Maimonidem directore dubi∣tantium 3. 40.
Epist. 3. in morte Nepot.
Epist. 105.
L. Sancimus. c. de poenis.
Lib. 2. de leg. special. Idem lib. de piet. Haud scio an possit ullum pe∣jus induci insti∣tutum, quam si nic malos è bo∣nis genitos se∣quetur poena, nec honos hahe∣bitur bonis qui ex malis paren∣tibus nati sunt. Aliter lex quae de suis actioni∣bus quem{que} ju∣dicat, non ex cognatorum vir∣tutibus laudat, aut ex cor•…•…dem vitiis punit.
Josephus cals such a fact of Alexander King of the Jews, exaction of punishment more than be∣longs to man. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Lib. 2. 8. Victoria de jure bel. n. 38. Graet. Prov. He's a fool that kils the father, and spares the •…•…hild.
Sen. lib. 9. de ira. c. 4.
Herod. Call.
L. quisquis. c: ad t. Jul. Ma∣jest.
2 Sam. 21. 1 Reg. 14. 2 Reg. 8.
So Rabbi Si∣meon Barse∣ma, very truly.
So Chryso∣stom obseves, and with him consentech Plutarch, say∣ing. There is no sorer pu∣nishment, than to see those, which had their beeing from us, to be miserable by our fault.
Alexander apud Curtium. 〈◊〉〈◊〉 7. Non opor∣tebat vos scire quid de his sta∣tuissem, quo tri∣stiores periretis.
Vide Plutar∣chum Pericle.
Lib. 3. 43.
As libanius also saith, some of them had been punisht, others not yet, but they shall not escape, neither them∣selves, nor their children. He saith the like in another Oration set forth by Go∣thofred.
And a pub∣lick detestati∣on of the fa∣thers crime, like that of Andronicus Palaeologus the Emperour, in Gregoras, lib. 5. c 81.
Tertull. de Men: Desivit uva acerba à patribus man∣ducata dentes filiorum obstu∣pefacere: unus∣quis{que} enim in suo delicto mo∣rietur.
Deut. 24. 16.
Amaziah for example. Joseph. lib. 2. Philo de leg. sp. lib. 2. •…•…soc. Busir. Dionys. lib. 8.
Who saith, that custom was proper to the Romans, to free the children from al punishment, whose parents were delin∣quents. The same is in a Law of the Wisigoths l. 6. tit. 1. c. 8.
L. Crimen. D. de poenis.
Lib. 4. de nat. Deorum.
Philo com∣mends these Laws in his book of Hu∣manity. L. Im∣perator Adria∣nus. D. de s•…•…atu hominum. L. praegnantis. D. de poenis.
Philo said, it was the man∣ner of tyrants, together with the condem∣ned, to de∣stroy five fami∣milies of nee∣re•…•… relation. See Herodian. lib. 3. and the example at Milain, when Galeatius was slain, in Be∣zarus, lib. 14.
He calls it an abominable Law. Vide & Concil. Tolet. 4.
Simile reperies in C. in quibus∣dam de poenis.
Philo of the subjects of the King of Egypt in Abrahams time, saith, All his family were partakers of the pain, because none was displeasd at the unjust act, but all by approbation were partakers of it. Josephus, where he re∣lates the prophecy uttered against seroboam, addeth, The peo∣ple shall be punisht too, and be expeld out of that happy land, and exiled beyond Euphrates, for accompanying the King in his impiety.
Quaest. ad orth. 133.
Paul. IC. L. si poena. D. de poenis. Si poena alicui irrogatur, receptum est commentitio ju∣re, ne ad haere∣des transeat.
Cic. 2. de legib. Nulla est persona quae ad vicem ejus qui è vita emigrav•…•… p•…•… pius accedat quam haeres.
Cap. 22. Lib. 2. cap. 1. Vide supra num. I. hujus part.
Sic & Plutar∣chus distinguit in Galba, & Dion in rebus Caesaris & Pompeii: & Polybius, ubi de Romanorum bel∣lo in Illyrios a∣git, excerpto le∣gationum 126. Cum Suetonio, recte illas prae∣textum, has causas dixeris. Ita enim ille de Julio Caesare: Et prae∣textum quidem illi civilium armo. um hoc fuit: causas autem alias fuisse opinantur. Thucydides alihi distinguit 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ut in A•…•…heniensium motu adversus Siciliam, praetextum fuit opitulari Ege∣stanis, res ipsa cupiditas Siciliae sibi acquirendae. Hermocrates in oratio∣ne, de Atheniensibus loquens, illud 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 praetextum vocat, hoc 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 propositum. utrum{que} est in libro Thucydidis 6. Appianus etiam 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocem usur pat in Mithridatico. Idem Civilium 5. ubi de rupta pace inter Octavium & Sextum? ompeium agit, dicit 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 causas alia•…•… in•…•…us fuisse, alias quae praeserebantur. Agathias libro 5. id quod alii 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, vocat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, figmentum & obtentum, cui oppo•…•…it 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in historia Hunui Zanurganis. Procopins Persic. 2. dicit ftultum esse non libere loqui, ubi dux est justitia, comes 〈◊〉〈◊〉.
Lib. 1.
Sic & libro 5. de Argivis con∣tra Epidaurios agens, quam prius vocaverat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 mox vocat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Quomodo & Graecum, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Latinum Prin∣cipiorum vo∣cem, alias{que} ejus generis, esse sen∣sus ambigui no∣tavimus. Scrip tores Constanti∣nopolitani Im∣perii id quod alii 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, sae pe 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vo∣can, nimi•…•…um ex Achillis histo∣ria, qui ad resu∣menda arma ex Patroclo sumsit materiam. Livius lib. 7. Lib. 36.
Haec quidem praetexto opus habent; spe∣c•…•…em aliquam & deco•…•…um ti∣tulum bellan∣di dedere Ver∣ba sunt in hac historia Plutar∣chi. Lucans au∣tem:—Cunctas{que} Pudoris Rumpunt fat a moras. Justos Fortuna laborat Esse ducis motus, & causas invenit armis.
Tacit. Pericu∣lorum, prop∣ter ipsa avidi. De Alanis Am∣mianus, lib. 31. Ut hominibus quietis & pla∣cidis otium est voluptabile, ita illos peri∣cula juvant & bella.
Ultimo Nicbo. mach. Orat. 37. Epist. 4.
Lib. 2. de Clem. cap. 7. Idem l. 2. de Irac. 5. de Apollodero locu∣tus & Phalari∣de: Haec non est ira, feri∣tas est.
L. pro haerede. sect. ult. & seq. leg. D. de haered petit Ta∣lis Herulorum in Longobardos, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, bellum sine praetexiu.
Talis Silio Annibal, cui—pro faedere, pro{que} Justitia est ensis. Talis Attila, & qui∣bus illud in ore est, Quaeritur belli exitus, Non causa. Et: Haec acies vi∣ctum factura nocentem est. Et: In sumnia fo tuna, id ae∣quius quod va∣lidius.
Galli apud Livium 5. in armis •…•…e jus ferre, & omnia fortiu•…•… viro∣rum est. Lib. 4. de Civi•…•…. Dei c. 6 De •…•…alib. bellis Velleius: Bella non causis ini∣ta, sed prour eorum me ces suit.
Offic. 1.
Agathias lib. 2. Qui vero aut lu∣cri causa aut caeco odio, nullam habentes justam querelam, alienas terras inva •…•…unt, innoxiis noxii, hi homines sunt & superbi & improbi. Exemplum nobis dat illustre Menander Protector: Baja∣nus Avarorum Chaganus, nulla occasione aut obtentu, ne cona∣tu•…•… quidem causam vel falsam contra Romanos Comminisci, in∣verecunde plane{que} barbarum in morem exuit pacta.
Bene Philo ad Decalo∣gum: Qui ve∣ro furum vires nacti sunt, hi to∣tas praedantur urbes, paenarum securi, quod su∣pra leges emi∣nere videantur. Tales sunt homines ingenio minime civili, dominatuum & potentatus avidi, magna surta committentes, qui puleris nominibus magistratuum & imperiorum id obtegunt quod verius latrocinium ap∣pelletur.
Pyrrho.
Zonaras Pau∣san. lib. 1.
Tac'tus de Cauchis: Po∣pulus inter Ger∣manos nobilissimus, qui{que} magnitudinem suam malit justitia •…•…ol, s•…•… cupiditate, siue impotentia: quieti, secreti{que} nulla provocant bell•…•…; 〈◊〉〈◊〉 raptibus aut latrociniis populantur: id{que} praecipuum virtutis ac 〈◊〉〈◊〉 argumentum est, quod, ut superiores agant, non per injurias assequ•…•…∣tur; promta tamen omnibus arma, ac, sires poscat, exercitus; pl•…•…i∣mum viro •…•…m equcrum{que}, & quiescentibus eadem fama.
Et Antonius Caracalla in Attabanum Parthorum Regem. Vide Xiphilinum. Hist. 4.
Vict. de Ind. rel. 1. n. 31.
Vict. de bello. n. 5, 6, 7, 8. Idem. l. 2. n. 18. Plato de re∣pub. l. 2. c. 3. Euripid. Hecuba. Liv. l. 31. Isocrat. Panath.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Vide Concil. 4. Toletanum. Agrippa rex apud Josephum in oratione ad Judaeos, qui ex praepostero re∣petitae liberta∣tis sludio Ze∣lotae dicti sunt, sie ait: Intempestivum est nunc liberta∣tem concupisce∣re. Olim ne ea amitteretur cer∣tatum oportuit. Nam servitutis periculum facere durum est, & ne id subeatur ho∣nesta certatio. At qui semel subactus deficit, non libertatis a∣mans dicendus est, sed servus contumax. At{que} ipse Josephus ad eos∣dem: Honestum quidem est pugnare pro libertate, sed id olim factum oportuit. At qui victi semel sunt, & longo tempore pa•…•…uerint, si jugum excutiant, saciunt quod desperatorum hominum est, non quod liberta∣tem amantium. Eadem ferme verba reperies in oratione Comit•…•… Blanderatensis ad Mediolanenses apud Radevicum 1. cap. 40.
Intelligendum de libertate 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, non de ea quae est 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Seneca, 3. Contr. 21.
1 Polit.
1 Cor. 7. 21.
Jus exercen∣dae 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Vict. de Ind. n. 24. Ayala de ju. btlli. lib. 1. Covar. c. pec∣catum p. 2. sect. 9. n. 5. &c. Ad leg. Hostes D. de capt. l. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. adl. Rhod.
ut in conc. Chalcedon. Act. 11. & 12.
Ut & Atha∣sius ad Solita∣rios. Id vix sexta pars erat mundi tunc cogniti.
Philo de le∣gatione; De pluribus utilissi∣mis{que} orbus par∣tibus loquor, quas & emi∣nenter aliquis orbem appellet, definitum amni∣bus duobus Eu∣phrate & Rhe∣no,
Hieronym. Nomen terrae etiam cum ad∣ditur particula omnis, restringi debit ad eam regionem de qua sermo est.
Discas hoc ex Jos. lib. 3. de bello Jud. Luc. 2. 1. Arist. 7. Polit. 4.
Silv. verbo Bellum. p. 1. n. 21. Covar. loco citato n. 9.
Exemplum su∣me in Hispania, de qua vide Go∣merium in sect. fuerat num. 5. de actioni•…•….
Vict. de Ind. rel. 21. & seq. Ayala l. 1. n. 29.
1 Cor. 5. 12.
Jo. 18. 36. Matth. 26. 53. Vid. Petr. Dam. l. 4. epist. 9. & Bern. ep. 221.
Abulensis on Matth. 9. well explains this.
Hilarius Are∣latensis. For Christ came not to invade anothers glo∣ry, but to im∣part his own: not to take an earthly King∣dom, but to bestow an hea∣venly. 1. Tim. 3. 2.
Act. Apost. hom. 3. epist. ad Tit. hom. 1. ep. 1. ad Thess. hom. 4.
† De sacerdot. lib. 2. Christians are not permited to chastise, by force, the faults of the guilty. Secular Judges, awing evil-doers by the•…•… Laws, exercise power over them, and constrain them to obe∣d•…•…ence even against their will: But we must endeavour to ref•…•… men, not by compulsion but perswasion. Neither do the Laws 〈◊〉〈◊〉 low us power of coercion; and if they did, how should we use 〈◊〉〈◊〉 seeing God doth not crown those that abstein from evil necess•…•…∣ly, but willingly? Wherefore, we must take pains to pers•…•… sick soules to yield them selves of their own accord to be •…•…ured 〈◊〉〈◊〉 us. A little after. He that erreth, from the faith, cannot be drawn unto it by force, nor compeld by fear. And upon Ephes. 4. We are appointed to teach men, not to command, not to exer∣cise a coercive power. We are like Counselers, who advise the hearer, not force him, but leave him his free choice. Ambros. l. 2. de Cain, & Abel. 4. Sacerdos quidem officium suum exhibet, at nul∣lius potestatis jura exercet. Citatur c. verbum. de poenit. dist. 1.
Ad reges enim, non ad Eccle∣siam pertinet ju∣dicare de feudis, c. novit. de ju∣diciis: de seudis: de possessionibus, c. causam quae inter. qui filii sint legitime. Reges enim su∣periorem in tem∣poralibus mini∣me recognoscunt, c. per venerabilem. eod. tit. Christus voluit ut Chri∣stiani Impp. pro vita aeterna pontificib. indigerent, & Pontifices pro cursu temporalium rerum Imperialibus legibus uterentur; quatenus spiritalis actio à carnalibus distaret incursibus, & Deo m•…•…litans minime secularibus negoti•…•… se implicaret. C. quoniam di∣stinct 10. &c.
Hieron. in epitaph. Nepotiani. Minus licet Episcopo quam Regi. Ille enim nolentibus praeast, hic volentibus. Ille terrori subjicit, hic ser∣vi•…•…utl donatur. Cassiod. lib. 11. in epist. ad Episcopos: Episco∣pus doceat, ne Judex possit invenire quod puniat. Fredericus primus apud Guntherum Ligurino de pontifice: Ecclesiam regat ille suam, divina{que} jura Temperet: imperium nobis fasces{que} relinquat. Suennonem Daniae regem excommunicatum cum Roschildensis Episcopus Wilhelmus ab ingressu Ecclesiae oppositu baculi pa∣storalis arceret, & regii capulis admoverent manum, fecit quad Episcopicrat, & cervicem porrexit.
Vide de Theo∣doro quodam Gratiani tempo∣re Zozimum & Ammianum Marcellinum: de Joanne Ca∣padoce Proco∣pium Persico∣rum 2. & Leunclavium Hist. Turc. l. 18.
For the Pro∣phetical books are shut and sealed up til the appointed time, so that they cannot be understood, Dan. 12. 4, 8, 9. Hierom 〈◊〉〈◊〉 Daniel; If a Prophet heard and did not understand, what 〈◊〉〈◊〉 they do, who, by presumption of mind, interpretet a book sei'd and very obscure until the •…•…ime of consummation. Procopius 〈◊〉〈◊〉 the 2. of his Gotthicks; I think it impossible for man to find 〈◊〉〈◊〉 the sense of the Sibylline Oracles before they are fulfilled. G•…•… ras in his 5. book; As other predictions are most hard to be inter∣preted, because they have many perplexicies, and aomit serv•…•… ral explications: so also this Oracle deceived all, even the Em∣peror himself, as long as he liv'd. But after his death, the Or•…•… explaned it self. Take heed to your selves, yee over-bold D∣vines: Take liced of overbold divines, yee Statesmen. Word is that place to be seen in Thuanus. lib. 79. in An. 1583. con∣cerning Jacobus Brocardus.
Vict. de jure belli n. 2.
Which vice especially flat∣ters us with a shew of vertue; but S. Augu∣stin well advi∣seth, saying, It is better un∣dergo the shame of any cowardise, than seek the glory of such arms: Lib. 3. de Civit. Dei c. 14.
Rupere soedus impius lucri fu∣ror, Et ira prae∣ceps. Sen. Hip∣pol.
Contra Faust. l. 22. c. 74.
Tho. 2. 2. 74. 66. 8.
1 Eth. N c. 1.
In his mutatio sil 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, in aliis 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Vide Chrysosto∣mum ad 4. eph. 2. Morali.
3. N•…•…com.
Rom. 14. 23. To the same purpose are these words in the same ch. Let every one be fully per∣swaded in his own mind. And, Happy is he who con∣demneth not himself in that which he al∣loweth. Am∣brose saith, Tis sin to do otherwise than ones judgment leadeth: and so Augustin: both cited by Gra∣tian c. 28. q. 1. That of Plu∣tarch in his Timolcon is of like sense: It is requir'd, saith he, not only that the thing done be honest and just, but that it be done with a 〈◊〉〈◊〉 per swasion, and with judgment. De Offic. lib. 1.
Plin. lib. 1•…•… epist 19 Quod dubitas, non feceris. Covar. tom. 1. de Matrim. 〈◊〉〈◊〉 2. c. 7. sect. 2. n. 9.
Nicom. 2. c. 9. Cic. Offic. 3. De malis minima.
Augustin in his third de Or∣dine, saith, There are two ways, which lead us through the dark, when things are ob∣scure, the one of reason, the other of autho∣rity.
Minutius in Livy lib. 22. borrowed this of Hesiod, say∣ing, He is the first man, who can give Coun∣sil, and shew what is good; next is he, that obeys the good Counsil of an∣other; He that can do neither is a man of an extreme bad tem∣per. Cicero hath words of the same meaning in his Oration for A, Cluentius, Victor. de Ind. rel. 1. n. 12. & de jure bell. 21. & 24. Arist. 1. Top. c. 1.
Vasquez disput. 62. c. 3. n. 10.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
In istam par∣tem potius pec∣cato tamen. Ammianus: Lenitas acerbi∣tati anteponen∣da. lib. 28.
Prob. sect. 29. ubi pro 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, vulgo legitur 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, & contra. Anti-phon. Si e•…•…ran∣dum est, sine jure absolvere, quam per inju∣riam condem∣nare est san∣ctius. Nam in illo error est, in damnatione insontis faci∣nus.
Laudator Silio Ital co Fabius: —Cauta speculator mente futuri, Nec laetus dubiis parvis{que} sacessare Martem.
De Offic. 1. Victor. de jure bel. n. 28. Terentius: Omnia prius experiri quam armis sapientem decet: Qui scis, an quae subeam sine vi faciat? Euripides. Verbi id impetrabo; sui nequeo, manu. Dionys. Halicarn. in excerptis legationum; Non ante ad res ve∣niendum est, quam tentata sit verborum via. Menelaus apud Liba∣nium: Homini convenientius, prius verborum experimentum saccre, quàm statim ad arma prosilive.
Donatus ad Eunuchum: Pervul∣gatum est enim, quod summa •…•…i defenderis quum extorquetur, hoc idem postmodum remitti remittentis.
Cass. 3. Var. 17.
Orat. advers. Ctesiphont.
Victor. de jure bell num. 28.
Gregor as lib. 10. de Alex. Bulgaro: It is uncomely for Christians to make such bit∣ter wars a∣gainst one an∣other, when they may find a way of peace, and turn their arms against the Infidels. Molin. disput. 103. sect. quan∣do inter.
Vide exem∣plum apud Cas∣siodorum 3. 1, 2, 3, 4. & Gai∣lium de pace pnb. 2. c. 18. n. 12.
To the Dru∣ids, in this res∣pect, and with better right, have succee∣ded Bishops: See the epistle of the Bishops to King Lewis. In capitulis Ca∣roli Calvi. vide & Roderic. To∣let. 7. 3.
Vide August. de doct. Christ. lib. 1. c. 28.
Scriptor Tra∣goediae The∣baid•…•…s: Rex sit è v•…•…bis uter, Manen•…•…e regno quae, ite. Dion Othone: Mol∣to enim satius justi is{que} est unum pro omni∣bus, quam mul∣tos •…•…us causa perire.
Libro 5.
Ae 1. 11. Ae∣quius huic Turno fuerat se opponere morti. Upon like cause Anton•…•… challenged Octavius to a Duell. Plutarch. Antonia.
Vide Cert•…•… Calvi Capitulum apud S. Arnulphum, & pactionem Aquisgrant•…•… Ae 〈◊〉〈◊〉 as ead•…•…m apud Langobaidus, vid. Paul, Warnasred. l. 1. c. 1•…•…. 4 c. 17. 5. c. 40.
Vide Herre∣ram tom. 2.
Sic Gratianus causa 11. a. 3. post C. Episc. distinguit justi∣tiam causae, or∣dinis, animi.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Lib. 5. Eth. c. 10. & 11. Rhet. 1. 13. August. lib. 15. de C. D. c. 5. Covarr. &c.
3. Rhetor. c. 17.
Lib. 2. 8.
Top. 1. 13.
Nic. 5. 12.
Victor. de ju. bel. n. 14. & 33.
Rom. 5. 6.
Arist. Polit. 4. Rhet. ad Alex. cap. 3.
Pausan. lib. 5.
Senec. Sua∣sor. 5. Gallio said, war is to be undertaken, for liberty, for cur wives, for our children: but for things that may be spared, and of small damage, it is not to be undertaken. Apollonius said somewhat more to the King of Babylon, in Philostrat. lib. 23. You ought not dispute with the R•…•…mans about Villages, which are less than private mens possessions: nor make war, no not for great causes. Josephus in his 2. against Appian saith of his Coun∣trymen: That they shew not their valaur, to get riches, but to preserve their Laws: Other losses they bear patiently; but when they are forced to depart from their Laws, then they fight, even beyond their strength, and endure all extremities of war.
De clementia 1. c. 14. Augustus said to a certain Father consul∣ting what he should do to his son guilty of paric•…•…de; He must be sent away whi∣ther his father would. He de∣creed not pri∣son or tor∣ment: mind∣ful of him to whom he gave advise, and saying, that a Father should be content with the sof•…•…est kind of punishment. Seneca eod. lib. c. 15. Terene, Andria: Pro peccato magno paululum supplicii satis est patri. Ph•…•…lo: Patres abdicationis tristia verba pronunciant, silios{que} à domo sua 〈◊〉〈◊〉 omni cognatione abrumpunt, ita demum, ubi amorem illum, quem i•…•…∣gentem ac supra omnia eximium natura parentibus indidit, fili•…•… improbitas vicit. Cicero pro Ligario: Ignoscite, Judices, erra•…•…. Lapsus est: non putavit: si unquam postbac; ad parentem sic agi•…•….
Seneca epist. 87. Clementia alieno sanguini tanquam suo parcit, 〈◊〉〈◊〉 scit homini non esse homine prodigè utendum. Diodorus Siculus in fragmentis: Non omnes omnino qui deliquere puniendi sunt, sedii quos malesectorum nihil poenitet. Chrysost. de statuis 6. Discant omnes qui à fide nostra sunt extranei reverentiam quae Christo exhibetur tan∣tam esse, ut cuilibet potestati injiciat fiaenos. Honora Dominum tuum: condona peccata conservis tuis, ut & ipse multo magis te honoret, ut in •…•…llo judicii die vultum tibi ostendat serenum at{que} clementem, hujus tuae •…•…enitatis memor. Citat Gratianus caus. 23. qu. 4. ex Augustino: Duo ista nomina cum dicimus, homo & peccator, non uti{que} frustra di∣cuntur: quia peccator est, corripe: quia homo, miserere. Vide & quae sequuntur.
Ambr. Offic. l. 2. c. 2. vide Molin. tr. 2. de Just. disp. 103. Lorca dis. 153. n. 11.
Theodosius was moved to pardon the crime of the Antiochians by those words of Christ pres∣s•…•…d by the Bi∣shop 〈◊〉〈◊〉 a∣nus: Father Forgive them: for they know not what they do. Chrysost: 10. de sta•…•…s.
Jos. antiq. hist. 2. 3.
Sen. de Clem. lib. 1. c. 20.
Chrysostom saith, Clemen∣cy is an orna∣ment to all men, most of all to a Ruler. For, to rule himself, and obey the Di∣vine Law, is most honou∣rable to the highest Go∣vernour. In laude Clemen∣tiae.
Apud Vulca∣tium Gallica∣num vita Avi∣dii Cassidii. August. in epist. 104. ad Bonifac. Comitem: Re∣member to give a speedy pardon, if one hath trespas∣sed against thee, and cry∣eth mercy. De Offic. 1. Nihil magno & praeclaro viro dignius placabi∣litate & Cle∣mentia.
Procopius Vandat. 2. The Offenders timely Repen∣tance is wont to prevail with the offended party, and obtain his pardon.
Procopius in his second book of the Gotth•…•…cs, saith the Goths spoke thus to Belisarius; It concerns the Commanders of both Na∣tions, not to purchase their own glo∣ry at so great a price as the undoing of their people, but to prefer and chuse things just and sase, as well for themselves as for their enemies. Diodotus in Thucydides saith, Although they are very guilty, yet would I not have them slain, except it be expedient for us. lib. 3.
Vide Plu∣tarch. Camill. So did the King of Arme∣n•…•…a in the time of Severus. Herodian. l. 3.
Vide Procop. Vandal 2. & Gotthic. 1. Liv. lib. 6. Lib. 7.
† De Marte quoties itur in suffragia, Nemo imminere cogitat mortem sibi; Sed quis{que} cladem destinamus alteri. Quod si in Comitiis funera ante oculos forent, Furiata bello non perisset Graecia.
† Of their own danger most men are, Unmindfull, when they vote for war; They think not, death hangs o'r their head, But wish that other men were dead. The undone Grecians had not been So mad, if this they had fore-seen.
Arist. de ani∣mal. mot.
Narses in Procopius makes a pru∣dent use of this rule. Got∣thic. 2.
De Offic. 2.
Epist. ad Att. l. 13. 27.
Tarsensi alte∣râ.
Siculâ 2.
Lib. 9. epist. ad Attic. epist. 112.
—Quam not sit ardua virtus Servitium fu∣gisse manu.
2. Paral. 12. 78.
Jer. 27. 13.
Aug. de Civit: Dei. l. 22. c. 6.
Lib. 18.
Gu•…•…do Blan∣dratensis ad Mediolanen∣ses apud Gun∣therum: Omnia securi pro libertate feremus: Sed libertatem contemta nemo salute Sanus amat; ne{que} enim certae susceptio cladis Quam vitare queas, nisi cum ratione salutis, Libertatis amor, sed gloria vana putanda est. Anaxilaus, whom the Famine constreined to yield Bizantius, made this defense, saying, Men were to fight against men, or against the nature of things. So Xenophon. Procopius Go•…•… saith, Men do not praise voluntary death, so long as any h•…•… prevailes over the danger. Diodorus Siculus having opened 〈◊〉〈◊〉 Counsells of the war undertaken by the Sithonians after Ale•…•… anders death, saith, In the judgment of wiser men, they •…•…∣tempted a thing rather glorious than profitable, making ha•…•… i•…•… to danger unnecessary, and not taking warning from the no•…•… overthrow of Thebes.
Cajet. 2. 2. q. 95. art. 8. Mo∣lina tract. 1. de just. cap. 102.
Lib. 10.
Ovid. Fast. 1. Sola gerat mi∣les, quibus ar∣ma coërceat, arma.
Servius ad il∣lud in 10. Aen. Iram miserantur inanem Ambo∣rum, & tantos mortalibus esse labores. Quia nulla causa tam justa est, ut propterea bellum geri debeat.
Liv. l. 10.
Cic. ad Att. 7. 7.
Sueton. c. 14.
Gel. 13 c. 3. Val. Max. l. 7. 2.
Plutarch. Gracchis: Ex∣trae summam necessitatem fer∣rum inferre, nec boni medici est, nec boni praesi∣dis. Marciani dictum apud Zonaram: Non debere Regem arma movere, quamdiu pace frui liceat. Aug. 50. epist. ad Bonifacium, Pacem habere voluntatis est: Bel∣•…•…m autem debet esse necessitatis, ut liberet Deus à necessitate, & con∣•…•… in pace.
The Lion despising weapons-good while defen∣•…•…th himself by terrour alone, and sheweth that he is compelld. •…•…lin. Hist. Nat. 8. 16.
Diod. l. 16.
De Civit. Dei lib. 19. c. 7.
The Lacede∣monians in Diodo•…•…us Si∣culus l. 13. Se∣ing the many enm•…•…es and s•…•…d effects of war, we think it our duty to testify before God and man, that we are not the causes of them. See a notable place it Guic∣ciard. lib. 16.
Lib. 4. de Ci∣vicate Dei. c. 15. Belligerare malu videtur felicit as, bonis necessitas.
Aelian. lib. 14. 11.
Non permisit templum struere ei qui multa be∣la bellasset, pol∣lutus{que} esset, hostili quidem, attamen sanguine. Joseph. lib. 〈◊〉〈◊〉 cap. 4. ubi & plura in hanc sententiam. Plinius lib. 7. 〈◊〉〈◊〉 25. After he had related the battells of Caesar the Dictator Truly (saith he) I will not account it Glory, to have 〈◊〉〈◊〉 much hurt to mankind, however urged. Philo de vita M•…•… Quamuis enim legibus permissae sunt hostium occidiones, 〈◊◊◊◊〉〈◊◊◊◊〉 interfecerit, qua nvis justè, quamvis ad sui tutelam, quamvis coactus, aliquid labis contraxisse creditur, propter illam communem à summa causa venientem cognationem. Quatropter & pur•…•… 〈◊〉〈◊〉 quadam opus habebant tales intersectorès, ad eluéndum quod com∣miss•…•… vid batur piaculum.
For three years. Zonaras. Basil. ad Am∣phil. 10. 13.
Procopius Pers. 2. saith, He is not just who doth no man wrong, except he de∣fend from wrong those that are com∣mitted to him. Navar. 24. 18.
Jos. 10. 6.
Ad Quirites.
Vertin. 2.
Lib. 7. Fides agi visa, deditos non prodi.
Soto de just. & jure. lib. 5. q. 1. art 7.
Satius judice∣mus esse, paucos aliquos mala ferre, quam im∣mensam multi∣iudinem, Zona∣ras.
Lib. 1. cont. ill. c. 13.
Praxithea a∣pud Euripi∣dem. Si nam{que} numeros, quid{que} sit plus aut mi nus 'erctpimus animo, non malo unius domus Commune vinci, sed nec aequari potest. Philo: Iniquum est to∣tum sieri acces∣sionem partis. V. l. 2. de vit. Mos.
Diodor. l. 17.
Vide Apol∣lod. in biblio∣theca.
Lib. 45.
So, among the Lucanians, a punishment was appointed for the p odi∣gal: among the Macedo∣nians, for the ungratefull: for the idle, among the same Luca∣nians, and the Athenians.
Less. lib. 2. c. 9. dub. 7. Plutarch. Phoc.
Offic. 1. 36.
Vide Simle∣rum de repub. Helveciorum. The Lord ma∣king war a∣gainst any, if it be known, that he doth it just∣ly, or if it be a doubful case, the Vassall is bound to aid him. But when it is unanifest, that He doth unreasonably, Let him help to defend him, not to offend another. lib. 2. de Feud. c. 28. Hic sinitur.
Liv. lib. 34. Vict. de Ind. p. 2. n. 17. Cajet. 2. 2. q. 4 art. 1.
Oraculum vetus: Non ope juvisti praesens in morte 〈◊〉〈◊〉; Effa•…•…or tibi nils, 〈◊〉〈◊〉 nisi Templi sinibus 〈◊〉〈◊〉;
Cic. de fin. 3. de Offic. 2. L. ut vim. D. de just. & jure.
De ira. l. 1. c. 7. de clem. 2. 5.
Euripides in supplicibus: —Praebent saxa perfugium feris, Area{que} famulis: urbibus pressis malo Tutamen urbes.—
Offic. 1. 5.
De legib. 4. E•…•… Hebraei ita cen∣sent. Moses de Kotzi praecept•…•… jubente 77, 80. Diodor. l. 1.
De ben: 2. 15. And elswhere he saith, I will defend a wor∣thy man at the cost of my own blood, and par∣take in his danger: And if I can deliver an unworthy man from theeves by raising a cry, I will not re∣fuse to spend my voice to save a man. De benef. lib. 1. c. 10. Less. Lib. 3. c. 4. dub. 15.
Euripides Herachdis: Nos quotquot bujus colimus urbis mania, Sufficimus ipsi nostra judicia exsequi. Nec alio illud pertinet; Spartam tibi quae contigit orna: Nobis fuerit cura Mycaenae: Et huic non dissimile illud Poeticum: Rescindere nunquam Diis licet acta D•…•…ûm. Ov•…•…d. Met. 14. Et Virgil. Aen. 1. Non illi Imperium pelagi saevum{que} tridenteus, Sed mihi sorte datum.—
Amb. l. 1. de Offic.
Thucy. lib. 5.
Au ustin in his second de lib. arbin. saith, Although it be a part of goodness to do good to stran∣gers, yet is it no point of Ju∣stice to punish then. Procop. Vand. 1. It is good for eve∣ry one to go∣vern well his own charge, and to appro∣priate to him∣self the cares of other men. Vict, de Ind. rel. n. 15. Vict. de Ind. rel. p. 2. n. 13.
Exemplum simile habes in rebus Pipini a∣pud Fredega∣tium in fine.
Iterum Simle∣rum vide de hac ve. Soto in verb. bellum p. 1. §. 10. circa fin.
Ibi fas ubi plurina merces.
Livy l. 32.
Suam qui au∣ro vitam ven∣ditant. Plaut. Bacch. Gun∣therus: Ae e dato conducta cohors, & belli∣ca miles Dona sequens, pretio{que} suum mutare favorem Suetus, & accepto pari∣ter cum munere bello Hunc ha∣buisse, dator pre∣tii quem jusse∣rit, hostem.
Bellinus de re mil. 2. p. t. 2. n. 4.
Seneca nat. 5. 18. Who can stile it other than madness, to carry dan∣ger about with him and to run upon men unknown, angry without injury, wasting all in his way, and making slaughter (like wild beasts) of men that one hateth nor.
Diod. lib. 18.
De verb. Dom.
1 Cor. 9. 7.
Cap. 26.
Aegid. reg. de act. supern. disp. 31. n. 80.
Victor. de jure bel. n. 22.
Act. 5. 9.
Plato tells us so in his Apo∣logy. And A∣pollonius op∣posed against the edict of Nero that of Sophocles, Ju∣piter hath gi∣ven me other Order.
Which also Josephus ascri∣beth to them, Antiq. 17. No wonder, if we more observe those we have received of God by Moses, than your Commands. Adde Rab. Tanchumam citante Drusio ad lucum Actorum.
i. e. In quibus Deum offensurus non es. Ita Chrysostomus. S•…•…c accipe illud Hiero∣nymi, Per calcatum perge patrem, declamatoriè dictum, sum um{que} à Lurone declamatore apud Senecam. Subditos esse oportet, sed intra limitos disciplinae. Tertull. Jecirco Romanas leges contemnimus, ut jussa divina servemus. Silvanus Martyr. Apiid Euripidem dicenti Creonti: Nonne exsequi mandata sas ipsum jubet? Respondet Antigone: Non imperata jure nec jus exsequi. Musonius ita ait; Si qua•…•… aut patri, aut magistratui, aut Domino turpia aut iniqua se•…•… impe∣ranti non paret, is nec inobediens est, nec injuriam facit, nec peccat, Stob. tt. lib. parent. honorand.
De benefic. lib. 3. 20.
Lib. 3. epist. ad Minut.
Examples il∣lustrious both of punishment and praise, See 1 Sam. 22. 18, 19. 1 Reg. 18. 4. 13. 2 Reg. 〈◊〉〈◊〉 10, 12, 14. Among the Christians Manuel and Georgius ref•…•… the service of killing the Empress. Nicetas. Among the Pag•…•… are two noble examples of those that would not obey the unjust commands of Princes, that of Papinian so famous, and another of Helpidius in Ammianus lib. 21. Severus would not have them scape unpunished, who obeyed an Emperour in killing a Sena∣tor. Vide Xiphilin. Tertull. de Anima: Plus caeditur qui jubet, quando nec qui obsequitur excusatur. Vide Gail. de pace pub. lib. 1. cap. 4. num. 14.
Augustin: epist. 50. ad Bonifac. Ju∣lianus exstitit infidelis Impe∣rator. Nonne ex∣stitit Apostata iniquus & Ido∣lolatra? Mili∣•…•…es Christiani servierunt Imp. infideli: ubi veniebant ad causam Chri∣ti, non egnoscebant nisi illum qui in coelo erat: quando volebat ut idola •…•…lerent & thurificarent, praeponebant illi Deum.
For Julian abstei∣•…•…ed not from all violence against the Christians, then especially •…•…hen he had gotten any colour for it, as he thought. Jerom to Nepotian calls him, The Cut throat of the Christian Army. •…•…ug. de Civit. Dei l. 1. c. 52. tells of a persecution begun at An∣tioch in his reign, and a certain yong man tormented. In the Martyrologies is celebrated the memory of S. Eliphius a sect and his fellows, whom Julian caus'd to be beheaded, Vide & Joan. Anti•…•… bonum in excerptis ex MS. Peiresiano.
Victor de jure bell. n. 23.
Quod dubitas, ne seceris.
L. damnum. de R. J. L. Liber bomo. D. ad L. Aquil. L. non videtur. §. qui jussit de R. I. Paul. l. 5. sen. tit. 22. §. 1. Leges Long. tit. 96. de 〈◊〉〈◊〉 effoss. Leges Wistgot. l. 2. tit. 2. c. 2. L. 8, tit. 1. c. 1.
Chrysostom. de providentia, 3. Many magi∣strates accus'd for unjust slaughter have been punisht oft: but never was any Exe∣cutioner call'd in question, for they are ex∣cus'd by the necessity layd upon them, proceeding from the d g∣nity of the Commander, and the fear of the O∣beyer. Ulplan out of Celsus saith, a ser∣vant hath not offended, who hath obeyed his Masters command. Mi∣thridates dismist the servants of Attilius, being conscicus of the plot against his life, u punished; and the children likewise of one that had revolted from him: Appian. Tiber'us Gracchus was acquitted from the fault of the Numantin league, because he had offended at the command of another. In v lente necessitas non est. Seneca.
Et illud quo Philo utitur: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Anual. 3. The∣m stius in his 9. oration, saith, Princes are like to rea∣son, soldiers to wrath.
Controv. 3. 9.
Lib. 22. c. 74. cont. Faustum.
De Civit. Dei, lib. 1. c. 26. & de lib. arbit. l. 1.
Sil. in verb. bell. 1. n. 9. concl. 4. Cast. in l. 5. D. de In∣stit. Soto l. 5. q. 1. art. 7. Covar. in c. pece. p. 2. §. 10. Quis ju∣stius induat ar∣ma, Scire ne∣fas.
Adr. quaest. quod. l. 2. See an example of those that fol∣lowed this opi∣nion in Scaf∣naburgensis.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Jamb.
Baldus 2. Cons. 385. Sotus de Det. secr. memb. 3. q. 2. in resp. ad 1.
Vict. de jure bell. u. 25.
Nec Pothi∣num Prolomaei satellitem Martialis, cum ait: Antoni tamen est pejor, quam causa Pothini; Hic sacinus domino praestitit, ille sibi.
Tertull. Caeterum suspecta lex est, quae pro∣bari se non vult: improba autem, si non probata dominetur. Achilles apud Papinium Ulyssi:—Quae Danais tanti primordia belli, Ede: libet justas binc sumere protinus irat. Apud eundem Theseus: Ite alacres, tantae{que} precor considite causae. Propert. dixerat. Frangit & attollit vires in milite causa: Quae nisi justa subest, excutit arma pudor. Cui par illud panegyristae: Tantum inter •…•…ma bona conscientia sibi vindicat, ut jam caeperit non virtutis magis quam integritatis esse victoria.
Herod in Jo sephus tells the Jews after an overthrow in Arabia: I am willing to shew you, how just∣ly we under∣took this war, being com∣peld by the affronrs of our enemies. For by the know∣ledge hereof, you will be greatly stirred up to shew your courage. Aegid. Regius de act. supern. disp. 31. dub. 5. n. 85. Bannes 2. 2. 9. 40. art. 1. Molina tract. 2. disp. 113.
Wherefore the servants of Saul, more ho∣nest than Doeg, would not slay the Priests of Nob, their cause being unheard, 1 Sam 22. 17. And Ahabs third Captain of fifty would not hurt Elij ab 2 Reg. 1. 13. And some Executioners, converted to Christ, af∣terward used not this office, as unsafe. Vide Martyrol. & 〈◊〉〈◊〉 l. 1. c. 7.
Deut. 17.
Silv. in verb. Bellum. p. 101. 7. circa fin.
Origen. cont. Celsum.
Aug. epist. 70. ad Bonisac. com. That you may be faithful in wars (if you must needs be engaged in them) seck peace. Epist. 205. Even in war be peaceable. Belisarius in Procoplus Vand. 1. hath an excellent speech to his Soldiers, of Justice in waging War. Orosius saith of Theodosius, that 〈◊〉〈◊〉 war was begun by a pious necessity, ended by a divine feli•…•… and neither his fights bloody, nor his victory insolent and 〈◊〉〈◊〉 vengefull.
Vict. de ju. bell. n. 15.
Vict. de jur. bell. n. 18. & 39. & 55.
2. Part. 21.
Syl. in v. hell. p. 1. n. 10. v. pr.
Vide Th. 1. 2. 9. 73. art. 8. Molinam tr. 2. disput. 121.
Nec reus est mortis alienae, inquit Augu∣stinus, qui suae possessioni muro∣rum ambitum circumduxit, si aliquis ex ipso∣rum usu percus∣sus intereat, Ad Pabl. epist. 154.
Matth. 13. 29. Th. 2. 2. q. 64. art. 2.
Sen. in fine l. 2. de Clem.
Gen. 18. 23 & seq.
Athenis 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. evehi vetita, lina, u∣tres, lignum, ce∣ra, pix. Scho∣liastes ad Ari∣stophanis Nu∣bes & Equires.
Procopius Goth. 1. Vide Parutam lib. 7.
Lib. 1. c. 30. De Offic.
Can. in c. I•…•…a quorund. ad li∣berand. de Ju∣daeis.
Silv. in verb. Restitutio. p. 3. §. 12.
See an ex∣ample hereof in Camden, 1591. 1598. Yet were not such significa∣tions always regarded, but with diffe∣rence of times, causes, places. The Hollan∣ders in the heat of the war between Suedia and the King of Polonia ne∣ver sufferd themselves to be interdicted the Commerce with either 〈◊〉〈◊〉 The same, having war with Spain, intercepted the French sh•…•… passing to or from Spain, but restored them. The same Hol•…•… ders having a Navy before Dunke•…•…k, suffer'd not the Engli•…•… Merchants to enter there.
Many things perteining to 〈◊〉〈◊〉 question are in the Danish History of the learned Meursius 〈◊〉〈◊〉 & 2. Camdenum vide an. 1589. 1595.
Polyb. 1.
Plutarch. Demetrio.
Not much unlike is that which Plu∣tarch relates of Pompey, in the history of the Mithridatic war: He set a guard on Bosphorus, to observe if any Merchants sailed in thither. Whosoever were taken were put to death.
Homer: five dolo, seu vi manifesta, clam∣ve palamve. Pindatus: Quidvis agendo scilicet hostica Delenda vis est. Virgil: Dolus an virtus quis in hoste requirat? Sequitur ipse Ripheus justissimus unus Qui fuit in Teucris & servantissimus aequi.
Silius: Exin vi•…•… placult dolus.
Lucian. Phil.
Xenoph. de Cyri Justit. lib. 1. Thucvd. lib. 5.
Belli surta vocantur & a∣pud Virgilium Aen. 11. Plutarch. A∣poph. Polyb. lib. 9.
Sil. l. 5. Bellandum est astu: Levior laus in duce dextra Mu∣hammedis di∣ctum simile: Elharbu hadia∣tum. i. e. Pugnae fraudem requi∣runt. Apud Vir∣gilium in Co∣mita u Martis, Irae Insidiae{que}. Ubi servius: Non tantum virtute, sed in∣sidiis comitatum se ostendit.
Plutarch compares with him, Sylla, who had in him, as Carbo said, as much of the Fox as the Lion. D. lib. 1. de dolo L. nihil. de capt. Eustach. ad Iliad. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Quast. 10. super 〈◊〉〈◊〉
1. De Sacer∣dot.
L. 1. §. Do'um malum. D. de dolo malo.
De offic. 1.
Lib. contra mend. cap. 10. Tho. 2. 2. q. 40. art. 3. in resp & q. 71. art. 7.
Silv. in v. bell. p. 1. n. 9.
Idem in 〈◊〉〈◊〉. Psal. It is one thing to ly, an∣other thing to conceal the Truth.
Pro Milone. & l. 7. epist. 9. & pre Cn. Planc.
Vide Chrysost. 1. de Sacerdotio.
Gen. 20.
Veritatem vo∣luit celari, non mendacium •…•…i∣ci. Aug. qu. 20. in Genes.
Th•…•… 1. 2. q. 110. a. 3. in resp.
L. Labeo. §. ult. D. de sup. Lega∣ta.
Pllnius de Aethiopum gente lib. 6. 30. Quibusdam pro sermone nu∣tus, motus{que} membrorian est. V. c. tuae fra∣tern. de spon∣sal.
Non figura, inquit, litera∣rum, sed oratio∣ne quam expri∣munt literae obli∣gamur, quatenus placuit non mi∣nus valere quod scriptura quàm quod vocibus lingua figuratis significaretur. Valde Philo∣sophice dixit placuit, ut o∣stenderet haec valere 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Aristot. de In∣terp. c. 4.
L. non figura. D. de obl. & act.
Vide Aug. de doct. Christ. lib. 2. c. 24.
As in the fact of Michol, 1 Sam. 19. 16.
Luk. 24. 28.
Mar. 6. 48.
Act. 16. 3.
So it is to be called, not 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, frauds, saith Ch•…•…ysostom in his first De Sacerdotio. The same in his up•…•… 1 Cor. 4. 6. This was not fraud, but a kind of compliance and c•…•…∣pensation. Hither may be referred David's counter feit mad•…•…
Liv. l. 5.
Jos. 8.
Silv in verbo bell. p. 1. n. 9.
Prov. 13. 5. Prov. 30. 8. Psal. 5. 7. Col. 3. 9.
Aliena vero prol•…•…qui nun∣quam decet So∣phocles. Men∣dacium odit quisquis animi∣tus sapit. Cleo∣bulus.
Irenaeus lear∣ned of an old Priest, and taught, Things, of which the Scripture passes no cen∣sure, but set∣teth them down simply, are not to be condemned by us. l. 4. c. 50.
Plato 1. & 2. & 5. de repub. Xenoph. 4. So∣crat. Plut. de Stoic. comract. Quintil. 12. 1.
Nic. 7. 3. 4. Nic. 8. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Diphilus: Quod pro salute dicitur mendacium Me judice habere nil potest incommodi Quaerenti apud Sophoclem Neoptolemo, Non tibi videtur turpe falsiloquentia? Respondet Ulysses, Non, si salus nascatur ex mendacio. Cui similia ex Pisandro & Euripide adseruntur.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, In tempore, ut Donatus loqui∣tur ad Adelphos 4. 3. Et ipsum fallere in tempore, quidam de Officiis scribentes rectum putac••. Cicero pro Q. Ligario, aliquod mendacium honestum & miserico•• vocat.
The Tongue is not made guilty, but by a guilty mind. And, No man is to be cen∣sur'd for lying, who speaketh false, which he thinketh t••ue; because, as for his part, he de∣ceiveth not, but is decei∣ved. August. de verb. A ost. Serm. 28. & Enchir. c. 22.
Gellius l. 11. c. 11. Mentiri & Mendacium dicere.
So Abraham spoke capti∣ously with his servants, as Ambrose takes it and ap∣proves it: whom Grati∣an follows, post. c. si quaeli∣bet. causa 22. q. 2.
Jo. 11. 11.
Jo. 2. 20, 21.
Luc. 22. 30.
Matth. 26. 25.
Act. 1. 6.
Tacit. Annal. 6.
Idem Taci∣tus Histor. 3. Incerta disseru∣it, tracturus in∣terpretationem, prout conduxis∣set.
Quorum & hoc est: Licet perplexè loqui boni causa. Ci∣tat doctissimus Manasses Ben Israel in suo Coaciliatore quaest. 37.
Philo de vi∣ta Mosis: De factis loquor, quae ad Dei bo∣norem pertinent, in quibus solis veracem esse oportuit, eliamsi quis coeterùm ing•…•…nip esset mendace. Veri∣tas enim Dei Comes.
Aeschylus Prometheo: Dicam diserte quicquid audire expetis, Sermone nudo, non per implicitos modos, Quo more amicos al loqui verum ac bonum est.
Lex Attica, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Demosth. in Leptinem.
Hence the Hebrews say, He steals away the heart, who takes away the means of knowing, Gen. 31. 20, 26, 27. and Onkelos and the LXX. there. Robbi David lib. radi∣cum. & Rab. Salomo in Com∣ment. & Aben∣esd.
Lib. 1. de Re∣pub.
Lactant. in∣stit. 6. 18. ut non mentiatur unquam deci∣piendi aut no∣cendi causa.
Lucret.
7. De benef. 21. Senea ibid. Incredibilia af∣firmat, ut ad credibilia per ve∣niat.
Liv. lib. 34. Appian. Hisp.
Adde Cyrillum adversus Ju∣lianum lib. 9. circa finem. nec multo aliter Tertull. 1. & 3. cont. Marcio∣nem.
Plin. epist. 3. 16.
Ac sic deceptus non capiatur.
Lucret.
Xenoph. 4. Socr.
Livius lib. 34.
Agcsilaus be∣ing come into Boeotia, ha∣ving under∣stood that Pisander was overthrown at sea by Pharnabazus and Conon, commanded a contrary report to be dispersed among his Soldiers, and putting on a Crown offered Sacrifice for the Victo∣ry, Plutarch, Agesil. [See the History of the famous Montross, in the battell of Aldern. Lat. p. 112.]
Iliad. 2. A∣gamemnon Graecorum Imp. Ante ta∣men Danaos verbis tentabo (sinit fas) ut{que} cite sugiant aerata classe mo∣nebo. Plato 3. de rep.
Examples of Physicians are alleged by Chrysostom, l. 1. de Sacerdo∣tio.
Cum s•…•…atribus dispensatoria severitate cri∣men exploratio∣nis inureret, ait Cassiod. de amicitia.
Lib. 2. 18.
Aug. in 5. ps. relatus à Gra∣tiano in cau∣sam 22. quaest. 2. c. ne quis. Duo vero sunt genera mendaciorum in quibus non est mogna culpa, sed tamen non sunt sine culpa, cum aut jocamur, aut proximo consulendo mentimur. Illud autem primum in jocando ideo non est pernitiosum, quia no•…•…fallit; novit enim ille cui dicitur, causa jocandi fuisse dictum. S•…•…∣cundum autem ideo minus est, quia retinct nonnullam benevolentiam. Tertullian in his De pud citia, among the sins of daily incursion, to which we are all exposed, putteth, to ly upon necessity.
Splendide mendax, & in omne virgo Nobilis aevum. Horat. 3. Carm. 2. Ubi scholiastes, Decenter: pulchrum est enim pro justilia mentiri. Chrysostom of Ra∣hab: O bravely, O laudable deceit, of one not betraying Di∣vine things, but preserving true piety. Augustin of the Egyptian Midwives: O the great wit of Humanity, O piously for to save life! Hierom commendeth the same Midwives, and believes, re∣wards, and those eternal, were given them: upon Ezech. 17. and Es. 56. Augustin is doubtful, upon Exod. lib. 2. So is Aquinas 2. 2. q. 110. a. 54. and Cajetan there. To status saith, They did not sin. See the learned Masius on Josua, 2. 5.
Lib. 2. de repub. Lib. 2. de Cari inst. & 5 So∣crat. Philo de migr. Ab.
〈◊〉〈◊〉 1. de Sacerd. Where he saith, I•…•… you cal the Actions of the most noble Cap∣tains to the test, you shall find most of their trophies to be rais'd by fraud; and that such have more praise than Conque∣rours by open force.
1 Sam. 11.
2 Reg. 6. 18. & 8. to. as the Masorets and the vulgar La∣•…•… read it. Tho. 2. 2. q 110. art. 1. & 3. Co var. in c. quam v. de pa∣ctis in 6. p. 1 §. 5. n. 15. Soto de justitia 5. q. 6. art. 2. Tolet lib. 4. c. 21. l. 5. c. 58. Less l. 2. de justit. c. 42. dub. 9.
Against whose after∣sentence in this matter, wrote Ruper∣tus Abbas.
Id. Chrysip. pus defendit apud Gellium l. 9. c. 12. Et Seneca de Be∣nef. 2. c. 34. Ingens est copia rerum sine no∣mine, quas non propriis appella∣tionib. not amus, sed alienis com∣modatis{que}.
Augustinus de Magistro: Nullum nos signum comperis∣se, quod non in∣ter caetera quae significat, se quo{que} significet.
Agesilaus and with him Plu∣tarch distin∣guish so. To violate leagues is to contemn the Gods. O∣therwise to deceive the e∣nemy with words, is not only just, but glorious, pro∣fitable and de lightful.
Arist. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Nic. 4. 1. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Plutarch. Philo in his book, That every honest man is a free man, saith, They are wont to call deceit∣full & double∣dealers, men of an illiberal and servile mind.
Lib. 1.
Lib. 8.
Mat. 10. 16. Mat. 12. 36.
In Philocte∣te Sophoclis, Neoptolemus Ulyssi ad dolos hortanti sic re∣spondet:
Annal. lib. 〈◊〉〈◊〉.
Scholiastes ad 2. Apollon.
L. Transfu∣gam. D. de acq. rerum dom.
Nor are such to be rendred, except it shall be agreed in the peace, as in the peace with Philip, the Aetoli∣ans, Antiochus. Polyb. in excerp. Legat. 9. 28. 34. Menander pro∣tector idem nos docet.
Cap. 2.
L. unica. c. ut null. ex vicanis c. ne uxor pro mar. & ue fil. pro patre, tot is titulis.
L. sicut. §. 1. D. quod cujus{que} univers. nom.
Lib. 6. de Benes. c. 20. &c. 19.
Vide Leges Si∣culas in sine l. 1.
D. L. unica. c. ut null. ex vi∣cun. l. 11. l. nullam. c. de execut. & exact. lib. 12.
Novel. 52. & 134.
C. unico de injuriis in sex∣to: Pignoratio∣nes, quas vul∣garis elocutio re∣pressalias nomi∣nat. Rectius scribas ut libri quidam, repren∣salias. Id enim voci Saxonicae Withernamii ad amussim respondet, sed usus alterum recept.
Lib. 4. Var. epist.
Justinian. de jure nat.
Tho. 2. 2. q. 40. art. 1. Molin. disp. 120. & 121. Valentia disp. 3. qu. 16. n. 3. Navar. c. 27. n. 136.
Populis pris∣corum Latino∣rum, homini∣bus{que} priscis Latinis bellum indico facio. l;. Liv. l. 1.
Vellent, sube∣rent Philippo Regi Macedoni∣bus{que} qui sub regno ejus essent bellum indici. lib. 31.
Populus Ro∣manus cum po∣pulo Hermundu∣lo, hominibus{que} Hermundulis bellum jussit: Gell. l. 16. c. 4. quod ex Cincio est in re militari: & alibi: Hostis sit ille, quique intra praesidia ejus sunt. Liv. lib. 38. & alibi
A prudent man Nicolaus Damascenus distinguisheth wars from these pignorations, where he shews, that Herod, to whom it was not lawful to make war against the Arabians, might lawfully 〈◊〉〈◊〉 pignoration for the Debts due unto him by contract. Joseph. 6. ant. bist. ubi haec verba. Cum narrasset quingenta Herodi talenta •…•…ti∣ta, cautionem{que} de iis expositam id continere ubi dies praestituta trans•…•…s∣set, posse ipsum ex omni Arabum terra pignora capere, hanc expeditio∣nem ex peditionem non esse dicebat, sed justam debiti exactionem.
Plu∣tarch. Agesil, & Xenoph. hist. Gr. 4.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Liv. lib. 34.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Justin. novell. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 id dicit Demosth. in orat. pro corona, & Arist. 〈◊〉〈◊〉. 2.
Bald. 3. cons. 58. Bart. de re∣press. q. 5. ad 3. n. 9.
Spectant huc quae habet Gail. de pace pub. l. 2. c. 8. n. 7.
L. Julianita D. de cond. in∣deb. L. rescri∣ptum. §. 1. V. de distr. pign.
Iliad. 〈◊〉〈◊〉
Part. 2. 10.
Dec. cons. 352. Bal. l. 3 de offic. assess.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
The Vene∣tians used this equity, having taken the ships of Genua, as Gregoras re∣lates in his 9. Book, saying, They did not spoil any of the lading, which was corn and fish, but preserved all very care∣fully, till, the debt being re∣ceived, they re∣stored what they had ta∣ken, entirely.
Plutarch in his Cymon concerning the Scyri∣•…•…ns: very many of them would not contribute monies, but bade them that either received or had taken away other mens goods repair the loss. Vide Aegid. Regium de actib. supernat. disp. 13. 〈◊〉〈◊〉. 7. 〈◊〉〈◊〉. 117.
Cap. 3.
Part. 1. 38.
L. hostes de verb. signif.
L. hostes. D. de 〈◊〉〈◊〉.
Philip 4.
Turba homi∣num non lege congregata, sed injustitiae causa in unum coacta. Procopius 2. Vandalicor.
Lib. 1.
Tales & illi quorum Saxo meminit, libro 14. Lib. 11.
Cic. de finib. 5. Ex eo quod maximas partes continet, latissi∣me{que} funditur, res tota appella∣tur.
Galenus talia vocat 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
De Civit. Dei l. 19. c. 24.
Aristotle saith, if one too far stretch the power of a Few, or of the people, the Commonwealth at first becomes vi∣tious, afterward none. 5. de rep. c. 9.
Cicero l. 10. epist. 1. Nec liges sunt, 〈◊〉〈◊〉 judicia, nec om∣nino simulacrum aliquod aut ve∣stigium Civita∣tis.
Exemplum in Mamertinis. Diodorus Sicu∣lus in Fragmen∣tis. Augustin. de latrocinio locutus: Hoc malum si in tan∣tum perditorum hominum acces∣sibus crescit, ut & loca teneat, sedes constituat, civitates occup•…•…, 〈◊〉〈◊〉 pulos subjuget, regni nomen assumit.
Ut Dux Lotharingiae, ap•••• Cran: z'um Saxonicis, 12, 13.
Cajet. 2. 2. q. 40. art. 1.
Cic. Offic. 2. At belli quidem aequitas sanctis∣sime seciali po∣puli R. jure per∣scripta est; ex quo intelligi da∣tur, nullum bel∣lum esse justum, nisi quod aut re∣bus repetitis geratur, aut de∣n•…•…ntiatum ante sit & indictum. Jos. Antiqu. lib. 15. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Vide Crantzium Saxonic. 11. Nicet. l. 3. & 4.
Lib. 1.
Liv. lib. 31. Idem cum narraslet Acarnanas agrum A•…•…ticum esse populatos: Irritatio animorum ea 〈◊〉〈◊〉 fuit: postea justum bel∣lum decr•…•…is civitatum ultro indicendo sactum.
Lib. 1. Idem lib. 3 in Pla aeensium ora•…•…. Pas est ar∣•…•…e cum à quo hostililt•…•… •…•…pe∣timur. Flami∣nius apud Di•…•…∣dorum Sicu∣lum in excerp∣tis 〈◊〉〈◊〉 is: Onnes Deo ho∣mines{que} est tha tur, in•…•… à Rege bellum.
Orat. ad Ni comedienses. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Vide Maria∣nam 27. 13.
Part 2.
Et illud: Ex∣trema primo ne∣mo tentavit lo∣co.
Jus feciale.
Ad 10. Aneid.
Lib. 8.
Simile est a∣pud Papinium: Aut Danass edi∣ce rogos, aut praelia Thebit. Polybius hoc vocat, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: Ro∣mani veteres, Condicere.
Exemplum vide apud •…•…∣bum lib. 7.
Et altera: Quarum re∣rum, litium, causarum con∣dixit Pater pa∣tratus populi Romani Quin∣tium Patri pa∣trato populi Priscorum Lati∣norum, homini∣bus{que} priscis Latinis, quas res nec solverunt, nec dederunt, nec fecerunt, quas tes dari, fieri, solvi opor∣tuit, puro pio{que} duello quaeren∣das censeo, con∣sentio, con∣scisco{que}.
Caducaeus. Unde ejus orgo disces ex Plinio, 29. 3. & Servio ad 4. & 8. Aeneidos.
Vide Servium ad 9. Aen. Ammianum 19. & quae ad eum no∣tara à doctissimo Lindenbrogio.
Arnob. l. 2. cont. Gentes. Vario. l. 4. de L. L.
Diffidato princi∣pe, diffidati sunt ejus adhaerentes. Bald. ad l. 2. c. de serv. n. 70.
Liv. lib. 36.
Idem dici po∣test de bello so∣ciorum ulysses in Ciconas Pria•…•… quondam aux•…•…∣liatos, de quib. Hom. Odyss. 1. & ibi Didymus.
Livius lib. 36.
Lib. 42.
Alb. Gent. l. 1. c. 2.
As the Ro∣mans to Por∣sena, saith Plu∣tarch in Publi∣cola. The Turks, two days before battell, make very many Fires, saith Chalcochond. 7. Lib. 3. de ira. c. 2. Ayala. l. 1. c. 5. Capta fieri capientium.
Alb. Gent. d. l. 2. c. 2.
Cap. 4.
Tum certare •…•…diis, tum res rapuisse licebit.
Ante dixerat: Veteres laedere, res rapere dice∣bant, etiamsi ra∣pinae nullum cri∣men existeret: similiter satisfa∣cere res reddere dicebant.
Crantzius Sa∣xonicorum, 11. 〈◊〉〈◊〉.
1 Cor. 6 17.
Tertullianus adv. Marcion. 1. Vacat absti∣nentiae testimo∣nium, si 〈◊〉〈◊〉 eripitur. Vide de hac re, & de f•…•…ga in perse∣cutione eund. l. 1. ad ux. Hie∣ronym. ad Hel. vid: Virgoma∣•…•… est meriti, dum id contemnit, quod si fecerit, non delinquit. Ad •…•…ammach, Semper grandia in audientium ponuntur artitrio. Non tibi 〈◊〉〈◊〉 ponitur necessitas, ut voluntas praemium consequatur. Chrysost. ad 〈◊〉〈◊〉 Cor. 7. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
In the fourth of his •…•…tromatca: where among other things he saith of one that mar∣ries again, He doth not indeed offend against the Law, for there is no Law to forbid it, but he falls short of that most ex∣cellent perfection of the Evangelical life.
August. lib. 1. de adulterinis conjug. ad Pol∣lentium cap. 13. & 18.
L. 1. §. licet. D. de peric. & com. rei vend.
Tertull. in exhort. ad castitatem: Li∣centia plerum{que} tentatio est dis∣ciplinae. Ibid. Omnia licent, sed non Omnia pro salute. Chrysost. de poenit. 8. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Columella praef. l. 8. Nec sane est vindi∣candum nobis quicquid licet: Nam summum jus antiqui pu∣tabant summam crucem. Hiero∣nym. ad Jovi∣nian. Et 〈◊〉〈◊〉 vere jus summum, summa malitia.
Lib. 3. c. 8.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Claud: Nec tibi quid liceat, sed quid fecisse decebit, Oc∣currat.
Ded. lib. 3. & 5.
Contr. l. 4. 〈◊〉〈◊〉 4.
Ammian. Marcell. Sunt 〈◊〉〈◊〉 quae fieri non oporter, etiamsi licet. lib. 30. Plin. in epist. Opor∣•…•… quae sunt inhonestae, non quasi illic ta, sed quasi puden•…•…a vitare. lib. Cicero ipse orat. pro Balbo: Est enim aliquid quod non oporteat, •…•…licet. Idem pro Milone, fas esse ad naturam, licere ad •…•…ges refert. Et in declamatione Patris, Quintiliani est, Aliud 〈◊◊〉〈◊◊〉 spectare, aliud jus•…•…iam, Declam. 251.
Sallust: Cui 〈◊〉〈◊〉 victo∣ria lege belli li∣cuerunt.
Achaei in o∣rat. ad Sena∣tum apud Li∣vium, lib. 39. Quonam modo ea quae jure belli acta sunt, in disceptationem veniunt?
Eurip. Ione. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Lib. 26.
Lib. 21.
Lib. 28.
Comment. l. 7.
Papinius: Nec querimur caesos: baec bellica jura vices{que} Atmorum. Servius in excerptis Fuldens. ad 2. Aen. Jure belli Politen Pyrrhus occide∣rat: sed cur ante oculos patris? Spartianus Severo: praeter eos quos jus belli absumpsit.
Senec. Troad. Quodeun{que} li∣buit facere, vi∣ctori licet. Et in epist. 96. Quae commissa capite luerent, tum quia paludati fecerunt lauda∣mus.
Cypr. epist. 2. Consensere jura peccatis, & coepii esse li∣citum quod publicum est. Ibidem.
Pharsal. 1.
Liv. l. 37. & alibi passim. Hostis sit ille, & qui intea praesi∣dia ejus sunt.
Ad L. 1. de ju∣stitia.
Bem•…•…. 7. hist. Cicero uses that defense in his oration for Ligarius. You have an example in Li∣vy l. 25. of the Citizens of Campania. Other examples in Thucyd. lib. 1. & 5.
Liv. l. 31.
Vellent jube∣rent? Philippo re∣gi Mocedani∣bus{que} qui sub ejus regno essent bellum indici.
Eurip. •…•…bi∣cun{que} prensum jura laedi hostem finunt. Marci∣an. IC. Trans∣fugas licet uhi∣cun{que} inventi suerint, quasi hostes interficere. l. 3. in fine D. ad l. Corn. de sicar.
Vid. Alberic. Gentil. Hispan. Advocat. l. 1. 6. W•…•…chner. in cons. Franconico 92.
Apud Eu∣ripidem est: Si crimen istu aliquod hospitibus struis, Jus impelrabisivi quidem hinc 〈◊〉〈◊〉 abstrabes.
Liv. lib. 28. See the like deed of the Venetiant bindring the Greeks from hurting the Turks in a Ha∣ven under the Venetian Go∣vernment, in Chalcocondyl. l. 9 Of the Ve∣netians and Turks at Tu∣nis, See Bemb. lib. 4.
D•…•…ut. 2. 34. 20. 16.
As the Ama∣lekites, of whom Jose∣phus in the life of Saul, l. 6. 8. He proceeded to the slaugh∣•…•…er of women and children, thinking he did nothing cruel or ad∣verse to hu∣man nature; first, because they were ene∣mies against whom it was done, &c. Psal. 137.
Parallel whereto is that of Homer, —illisa{que} corporaterrae Infon•…•…um, sav•…•… dum conculit omnia Mavois. Out of the same Homer Severus used these words a∣gainst the Bri∣tains. Nec qui l'atet abditus in∣t•…•…a Viseer a ma∣tris adhu•…•… fugic•…•… •…•…lia fata.
Scip•…•…o also at the taking of Numantia; Ju∣lians soldiers against the women left at Dacir. Zozim. 3. The same Julian at the taking of Majozamaltha, without difference of sex or age furiously destroyed all. Ammian. l. 14. Annal. l. 1.
Elizaeus in Josephus said it was just to kill captives, by the Law of War. There∣fore Virgil brings in a ca∣ptive supplica∣ting per patrios mancs, per spes surgentis Iuli. Withikind. l. 2 tells of seventy thousand Sla∣vonians taken and slain by Otto.
Troad. In Ciri Virgil: At belli saltem cap∣tivam lege ne∣casses. Hotat: Vendere cum possis captivum, occiderenoli; Po∣nit licere. Et Donatus, ser∣vos dictos qui servatl essent, quum eos occidi oporteret jure belli: ubi illud oporteret, im∣proprie pro liceret, positum videtur. A∣delph. act. 2. sc. 〈◊〉〈◊〉
Thucyd. lib. 〈◊〉〈◊〉.
Ap. Annib.
1. De Civi∣tate Dei. 2. Annal. 12.
Vide Thua∣num l. 70. in an. 1580. in re∣bus Hibern.
Simile apud Reginonem, in an. 905.
Cic. 5. Verrin.
Liv. lib. 28.
Tacit. Annal. 12.
Chalcocondy∣las lib. 8.
Diodor. Sic. Ne{que} enim igno∣rabant ipsis re∣bus edocti, cum bellantium par sit fortuna, alterutris, si male 〈◊〉〈◊〉 gessissent id expectandum quod ipsi in victis statuissent. Apud cundem Philomelus Dux Phocensium: Pari poena exacta effecit ut hostes 〈◊〉〈◊〉 superbo & insolenti supplicio temperarent. Vide cundem Diod. de Spendio & Amilc. In exc. Peires.
Procop. 1. Gotth.
Polyb. l. 1. & 6.
Lib. 24.
Plutarch. de claris mul.
Diouys. 16. Tacit. An. 1. 1 Maccah. 13. 17.
4. Histor.
The Sena∣tors to Pyr∣rhus: That we may not get infamy, if any thing befal you. Liv. lib. 42. Cic. Offic. 3.
Gellius ex cl. Quadrigario, l. 3. c. 8. Val. Max. 5. 5: Tac. An. 3.
Vide de Vene∣tis Bembum sine libri 3. Bold 2. Cons. 188.
De Scythis Plin. l. 11. 53. Scythae sagittas tingunt viperina sanie, & huma∣no sanguine, irre∣mediabile id sce∣lus mortem il∣lico adsert Levi tactu. De Servius v. supp. Helmoldi cap. 4.
Ideo Ilus Mermerides in Odyss. d. Ulyssi negat ven••num ad spicula, Veritus vim Divum mo•…•…e ca•…•…entum, Salish. 8. 20.
Lib. 2.
Strab. lib. 10.
Cadaveribus, asbesto, quibus usus in obsi∣dione Auximi Belisarius. Procop. Got. 2. calce, ut Turcae ad Di∣bibram. Nicet. lib. 1. De piscatu 4.
Vide Priscum in excerptis legationum.
Immisso per∣cussore.
Vide Paulum Warnafredi l. 6.
Liv. lib. 2.
Qui Plutar∣cho 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Lib. 3. c. 3.
Justin. lib. 2.
Valens pro∣mised money to him that would bring the head of a certain Scy∣thian, and so obtained peace. Zozi. 4.'L•…•…v l•…•…b. 27.
Tacit. hist. 5.
Liv. lib. 2. Lib. 3. 〈◊〉〈◊〉. ult. ad l. corn. de Sicariis pun. Vid•…•… Cromerum p. 113.
Et Joseph antiq. 15. 14. Factum non dissimile Theodosii in Eugenium est apud Zosimum l. 4. Gallorum in regem Per∣sarum apud A∣gathiam: Per∣sarum decem in Julianum a∣pud Ammia∣num 24. & Zosimum 3. Alexii Com∣neni in Toru∣sen apud Ni∣cetam Chro∣•…•…aten lib. 4. de Manuele. Bulgarorum in Nicepho∣rum Imp. apud Zonarum.
Lib. 8. epist. ad Ruf.
Curt. lib. 4. & lib. 14. Apud Livium est de Perseo: Non justum appara∣re bellum regio animo, sed per omnia clonde∣stina grossari scelera lotroci∣niorum & ve∣ne•…•…um. lib. 42. Marcius Philippus de •…•…dem factis Persei agens lib. 44. Ea omnia quam Diis quo{que} invisa essent, sensurum in exit•…•…s re•…•…um suarum.
Lib. 9. c. 7.
Scriptur de viris illust: Quae victoria, quta emta erat, à Senatu non probata. Eutro∣pius: Cum in∣terfectores ejus praemium à Cae∣pione Consule pe∣terent, respon∣sum est, Nun∣quam Romanis placuisse Impe∣ratorem à 〈◊〉〈◊〉 militibus intersi∣ci. Ubi forte legendum, à Coepione Consule promissum. Sic quod in 〈◊〉〈◊〉 rium admissum est, damnat Marcellinus. lib. 30.
Justin. l. 14. lib. 12.
Soneca: Regi tuenda est ma∣xime Regum sa∣lus. Consules Rom, in epist. ad Pyrrhum: Communis exe•…•… & fidei visum est, ut te salvum velimus: Tao. Lib 11. Curt. lib. 7. Sic laudatur Artabanes occiso Gontharide apud Procopium, fine Vandalic. 2.
And Lucul∣lus, as Xiphi∣lin relates. See the edict in Procop. Vand. 1. Aug. de Civit. Dei lib. 2. Liv. lib. 26.
Appian. Mi∣thrid. de Chiis captis: Mulic∣res & pueri bar∣barum in mo∣rem ab iis qui ducebant stu∣prati. Lib. 6. Va•…•…. hist.
Belisarius observ'd it e∣very where, and Totilas when he took Comes and Rome. Precop. Gott. 3. Deut. 21. 10.
Which Philo eloquently ex∣pounds in his book of Hu∣manity. Jose∣phus, in his se∣cond against Appian, saith, The Law took care for cap∣tives in war, that they should not be put to shame, specially wo∣men.
But the Per∣sian King Chosroes af∣fixt him to the Cross who had ravished an Apamean maid. Procop. Persic. 2.
Cap. 5.
Offic. 3. Sueton. Nero∣ne 40. tanquam occa∣sione nata spoli∣andarum jure belli opulentissi∣marum provin∣ciarum. Cypr. de Mortalit. Sic cum irrup∣tione hostili Ci∣vit as aligua possessa est, om∣nes simul capti∣vitas vastat. Lib. 31.
Annal. 13.
Tertullian in his Apologe∣tick: Wars and victories, most part, con∣sist in taking and over∣throwing Ci∣ties. Which work is not done without injury of the Gods. The walls of Ci∣ties, and Tem∣ples of the Gods par•…•…ake in the s•…•…me ruine: the Ci∣tizens and Priests equal∣ly slaughtered: nor is the rapine of sacred riches and profane unlike. So many therefore are the sacrileges of the Romans, as their trophies; So many are their triumphs over Gods, as Nations, &c.
Po•…•…. l. cum loca. D. de religiosis.
Cic. Verrina 4.
Marsil. Pata•…•… in defensore pacis c. 5. p. 2. Nicol. Boerius Decis. 69. num. 1. B•…•…ssius in crim. de fo•…•…o competente num. 101. Cothman. cons. 100. num. 30.
Part. 1. 〈◊〉〈◊〉. 42. pag. 88. Cui convenit illud in Amphi•…•…uone Plau∣ti: urbem, agrum, aras, socos, se{que} 〈◊〉〈◊〉 dedevent. Deinde: Dede•…•…, se, divina humana{que} omni•…•….
In the necessity of times sacred things were converted to uses of war, by Pericles, under promise of ma∣king restitution. Augustus borrowed money out of the Treasury of Temples. Appian Civil. 5. Heraclius in extreme need turned the Church-plate into coyn: but afterward restored the price, as Theophanes relates. See the Oration of Laurent. in Bemb. l. 6.
Pausan. Area∣dicis.
Vide Crome∣rum lib. 17. Pro∣cop. Persic. 2.
Deut. 7. 5.
Antiquae hist. 4. 〈◊〉〈◊〉. & libro con∣tra Ap. altero.
Tacit. hist. 5.
1. Macc. 5. & 10.
Ascon. pad. in Verr. 3.
Diogenes Laertius in his beginning, saith, Images are condem∣ned by the Magi.
De Civil. Deil. 18. cap. 45.
Pro Flacea.
Dan. 5. 〈◊〉〈◊〉.
Bell. Iud. l. 6. c. 24. & 34. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
L. Sepulchra. D. de sepulc. violato.
Part. a. n. 73.
Cap. 6.
And food to his servants, and part of the spoyl to his companions. vide Josephum in hac historia. Hebr. 7. 4. Gea. 14.
Gen. 48. 22.
The Chal∣dee interprets it done by Prayers to God, who by a singular fa∣vour preserved Sichem for Ja∣cob and his posterlty.
Gen. 34. 30. 49. 6.
Deut. 20. 14.
1. Par. 5. 20, 21, 22. 2. Par. 14. 13.
Jos. 22. 8.
〈◊〉〈◊〉 Sam. 30. 26.
De benef. 3. 37.
Philo de diris.
Xen. 5. de in∣stit. Cyri.
Sophist. Com. 4.
1. Polit.
Apud Plu∣tarch. in vita Alex. Ea quae victi fuerant, & esse & appel∣lari debent Vi∣ctoris. Ibidem. Vincentes etiam ca quae hostium sunt, sibi acqui∣rere. Diodorus Siculus excer∣ptis Peiresian. n. 467. Quae armis quaesita essent & parta belli jure, non di•…•…tenda. Etiam Cle∣mens Alexand. ait, res hostium rapi & acquiri belli jure. Strom. 1. Liv. lib. 39. L. naturalem. §. ult. D. de acq. rerum dom. tit. de rer. dio.
Hist. Gr. 3.
L. Pomponius. D. de acq. rer. dom. L. postlim. ¶. postliminio. D. de capt. l. ult. Ib. l. postlim. ¶. in bello. d. tit. Inst. de rer. di∣vis. ¶. item ea. Inst. d. loco. l. naturalem. ¶. item de acq. rer. dom.
Consulatn maris c. 283. & 287. Constit. Gallicae lib. 20. tit. 13. art. 24. Corn. de Lap. in Gen. c. 14. Molin. disp. 118. L. quod meo. D. de acq. vel amit. poss.
By land also the same is ob∣served, as you may learn out of Thuanus l. 113. in an. 1595. Vid. & Alb. Gent. His∣pan. Adv. l. 3.
Territorium à terrendis hosti∣bus. Sic. Flac. à terendo. Var. à terra. Fron∣tin. à terrendi •…•…ure. Pomp. Xea. lib. de Ve∣ctigal. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
De malè obita legatione.
Consul. maris c. 273.
Neither are the ships of friends to be made a prey because of the enemies goods, unless it be by con∣sent of the Masters of the ship. L. Cotem. D. de Publicanis. Rodericus Zuarius li. de usu maris, Consil. 2. 〈◊〉〈◊〉. 6. And so I think the Laws of France are to be understood, which subject ships and goods to the prey for one another. Other∣wise the things alone become a prey. Meurs. Danic. lib. 2. So in the War of the Venetians with the Genuans, the Greek ships were sea•…•…ched, and the enemies hidden there drawn forth. Gregoras lib. 9. vide & Crantzium Saxon. 2. & Albericum Gentilem Adv•…•…. Hispan. lib. 20.
Jud. 11. 23, 24, 27. 1 Sam. 30. 20.
So Resin King of Syria gave a City which was the ldumaeans not to them, but to the Syrians to be inhabi∣ted, as the Ma∣sorets read, 2 Reg. 16. 6. Halicarnass. l. 6.
De Veiis idem in Romulo narrat Plutar∣chus.
Halic. l. 8.
Lib. 41.
Mithrid. Civil. 1: Lib. 40.
Cap. 7.
L. Libertus §. 1. D. de statu hom.
L. postlim. ¶. 1. D. de captiv. L. in bello D. de captivis.
Philo: Mul∣ti viri boni va∣riis casibus na∣tivam liberta∣tem amiserunt. Pueros bello captos abduce∣re 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vocat Op∣pian.
L. & servo∣rum ¶. 1. D. de statu hominum. 1 Cor. 5.
L. X. D. de his qui sui sunt ju∣ris. Instit. de his qui sui.
Donat. ad Ter. And. A. 1. S. 1. Quid non ju∣stum domino in servum?
Instit. per quas person. ¶. item vob.
L. Pupillus. D. de V. S. vide & Servium ad 5. Aen. ubi origi∣nem vocis sal∣tem explicat.
L. Lex Naturae. D. de statu hom.
Caius JC. lib. 2. rerum quo∣tidian. Item quae ex hostib. capiuneur jure gentium stati•…•… capientium flunt adeo quidem ut liberi homines in servitutem de∣ducantur.
Deut. 23. 15. Vide praecepto∣rum vetantium 180.
The Essenes also, from whom the first Chr•…•…stians took begin∣ning. See Jose∣phus.
Bart. in l. hostes. D. de capt. Cova•…•…. in c. peccatum. p. 2. 〈◊〉〈◊〉. 11. n. 6.
Greporas lib. 4. Mos hic est ab antiquo dedu∣ctus, ad poste∣ros, propter fidei consortium, ut res quidem in praedam ver∣tere liceat, ho∣mines autem nec captivos fa∣cere, nec inter∣ficere ex•…•…ra praeli•…•… tempus.
Plato 5. de Repub.
Chalcocon∣dyl. lib. 3. Leunclav. lib. 3 & 17. Bus∣bequius epist. exoticatum. 3.
Bart. in l. nam. & serv. D. de Reg. gestis. B•…•…ër. decis. 178. Const. Reg. Hisp. lib. 8. tit. 26. pag. 2.
Cap. 8.
Apologet.
Minio in o∣rat. ad Roma∣nos, apud Liv. l. 35. Cur Sy∣racusas a•…•…{que} in alias Siciliae Graecas urbes Praetorem quo∣tannis cum Im∣p•…•…rio & virgis & securibus 〈◊〉〈◊〉? Nihil a'iud prosecto dicatis, quam armis super at is vos iis has leges imposuisse.
De De bell. Gall.
Lib. 1.
Alexander after the Battell at Gaugamel was saluted King of Asia. The Ro∣mans said, what Syphax had was theirs by the Law of War. Ap pian. But, when the Hunni said, the Gepidae were theirs, because they had taken their King, the Romans denyed that, because the Gepidae had rather a Prince than a King, nor were they in his Pa∣trimony. Menander Protector.
Part. 1. n. 47.
Lib. 7. de rep.
Alexandrides 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Tacitus; non dominationem & servos sed rectorem & ci∣ves cogitaret. Xenophon saith of Agesi∣laus, that when he conquerd Cities, he go∣vernd them as free, and did not enslave them.
Liv. lib. 43.
Strabo lib. 12.
Dionys. 3.
L. qui in servi∣t•…•…te est. de reg∣juris. L. sic eve∣niet. D. ad leg. Jud. de adult.
Cic. ep. ad Brut. 6.
Antonius commanded the Tyrians to restore what they possessed of the Jews, not gran∣ted to them by the Senate, and possessed before the War of Cas∣sius. Josephus. vide & Beza•…•…um Genuen•…•… histor. lib. 20.
Cap. 10.
Lib. 12. de leg.
Ad ineruditum praesidem.
Offic. 1.
Lib. 1. de ira. cap. 27.
Cic. de Offic. 3. Aliter leges, aliter Philosophi tollunt astutias. Leges quatenus manu tenere res possunt; Philo∣sophi quatenus ratione & intel∣ligentia.
Arist. pol. 1. c. 6.
L. postlim. in pr. D. de cap.
Epist. 32.
Lib. 28.
Orat. 15.
Austin in his 4. Epistle, which is to Maicellmus, saith, If this earthly com∣monwealth would keep Christs pre∣cepts, even wars would not be waged without kind∣ness. Apud ve∣ros Dei cultores etiam ipsa b••lla pacata sunt. Idem.
1 Cor. 6. 10.
Num. 5. 6.
Hieron. ad Rust. Nec dif∣•…•…ertur ultionis sententia, si non reddantur uni∣versa. August. in epist. ad Maced. quae est 54. Si res alie∣na propter quam peccatum est, reddi possit & non redditur, poenitentia non agitur sed simu∣latur.
Es. 58. 5, 6, 7.
Vide Cano∣nes paenitentia∣les Maimoni∣dae cap. 2. §. 2.
Vide Leun∣clav. Tu. cic. 5. & 17. Loss. l. 2. c. 13. dub. 4.
Vasquez. lib. 1. controv. ill. c. 9. n. 17. Mo∣lin. disp. 118. §. ut vero.
Lib. 9.
Lib. 8.
Lib. 6. c. 5.
Mahumet the Turk com∣manded them to be freed, that were in the town of S. Mary in A∣c•…•…aia. Chal∣cocond. l. 9. Liv. lib. 28. Liv. lib. 42.
Lib. 63.
Cap. 11.
Omnia dat, qui justa negat. Lucan. Offic. 1.
Tacit. 3. An∣nal. Pompeius gravior remediis quam delicta erant. Auso∣nius; Vindi∣cta{que} major Crimine visa suo est.
Offic. 2.
2. De Clem. c. 4.
Leuctrica 1.
Laudatur Propertio Minos; Victor erat quamvis, aequus in ho∣ste suit. Sed & Ovidio: Leges captis justissimus auctor Host•…•… imposuit.
Vict. de jure belli. num. 36. & 45.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Vell. Pat. l. 2.
Lib. 26.
Pro Quintio.
Lib. 21.
Halicarnass. l. 1. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Moral. 5.
De arte Orat. lib. 1.
Tria haee no∣tarunt vete es, & 〈◊〉〈◊〉 illo Ho∣merl versu de Achille, •…•…ia∣dos postremo; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Ph•…•…lo, autem in leg. spec explica∣tion 〈◊〉〈◊〉 ait: Demidiatum esse facinus, ubi non accessit 〈◊〉〈◊〉 animi deliberatio. Thucydides lib. 4. credibile est a∣pud Deum quo{que} paratam esse veniam his qui bello aut qua simili ne∣cessitate tracti liquid a•…•…mittunt. Cae i•…•…es anud Livium l. 7. Ne ap∣pellarent consilium, quae uts ac necessitas appellanda esset. Aristides Leuctr. 2. Difficilia tempora excusationem aliquam dant desciscer∣tibus.
Idem The∣mistiu, alibi adolescentem Impe •…•…orem vule discere, quid distet 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, est quomodo re∣gem deceat istius •…•…ereri, hoc corrigere, post•…•…mum vero solum ultione prose∣qui. Such was Tra∣jan, eminent a∣mong the Ro∣man Princes, not exactly learned in words, but one •…•…hat knew wh•…•… to do, and did it. Xiphil. M. 〈◊〉〈◊〉, a singular Prince, shewing wise∣dom, not in worde and opi∣nions, but in temperance and gravity of manners. Herod. Macrinus did not know the Laws so exa∣ctly, as he executed them faithfully. Xiphil. O God I Give us but such Princes in our times 〈◊〉〈◊〉
Vide Gail. l. 2. de pace pub. n. 18.
He∣rod. Cal.
Liv. lib. 4.
Liv. lib. 26.
Thucyd. lib. 3.
Vict. de jure belli. n. 59. l. 2.
Lib. 2. de clem. cap. 7.
Lib. 7.
De offic. 1.
De Deiotaro ille Cicero: Non ill•…•… odio tui progressus, sed 〈◊〉〈◊〉 communi 〈◊〉〈◊〉. Sal∣lust in Hist. Caetera m•…•…lt tu∣do, V•…•…lgi more magis quam ju∣dicio, post alius alium quasi pru∣dentiorem se∣cu•…•…i.
King Theu∣derichus in Cassiodor 2. 41. saith, Those wars succeeded best with him, which were ac∣companied with most mo∣deration: for He is a perpe∣tual Conque∣ror, who is temperate in all things.
In panegyri∣co tamen qui dictus est Con∣stantino Con∣stantii filio:—caete•…•…i in via∣tu•…•… luce privati aliis regibus dedere documentum, ut mallent amici∣tion colere Romanorum quam exasperare justitiam. Nolim reduci hunc morem; tamen & Josua reges captos interfecit. Nimi•…•…m haec documenta sunt regibus ad modestiam.
Agide.
Lib. 27.
Curtius; A∣lexander, quam∣quam belli au∣ctoribus poterat irasci, tamen omnibus venia data.
Lib. 5.
Lib. 3. 24.
Deut. 20. 14.
De ira 2. 9. Lucan. Crimine quo parvi cae∣dem potuere me∣reri.
Pliny in his natural history 8. 16. saith: A Lyon, when he rageth, rageth upon men soo∣ner than wo∣men, and not upon infants, unless provo∣ked by great hunger. Philo of special laws 2. Many pre∣tences may be found out a∣gainst men of mature age, but against in∣fants calumny it self can find nothing to say, as being clear∣ly innocents. Josephus notes it in Manaem, as extreme cruelty, or ra∣ther barbarity, that he spared not Infants. Add that •…•…hich Bed•…•… hath l. 2. c. 20. of the fer ty of Caraevolla: and a good Law of the Helvetians in Simler, and the pious commands of Q. Elizabeth in Camden in anno 1596.
Vict. de sure be•…•…, n. 36.
Vita Camilli.
Lib. 1.
Lib. 24.
Sexus rudis inscius{que} ferri. Statius. Neroni ho∣stem vocanti Octaviam in Trag. reponit praefectus, Fae∣mina hoc nomen capit. Ideo Tucca & Va∣rus delendos censuere in z. Aen. versus, ubi deliberat Ae∣neas, an He∣lenam occidat.
Lib. 5.
Lib. 38.
Lib. 9. c. 1.
Papin: Nullis violabilis armis Turba sines. Vict. d. loco.
Lib. 28.
Antiq. 12. 3.
Liv. lib. 5.
Hircanus be∣sieging Jerusa∣lem sent Sacri∣fices to the Temple, as the Hebrews re∣late. So the Goths are praised by Procopius, who spared the Priests of Pe∣ter and Paul without Rome. Gotth. 2. vide Legem Longo∣bard. l. 1. t. 11. 14.
Quaest. Gr.
Serv. ad 7. Aen. Nam eum defendebat à bello, si non aelas, saltem re∣ligio Sacerdotis.
Et Polyb. l. 4. & Diod. Sicu∣lus in exc. Pei∣res. Likewise they that went to the Olvmpian, Pvthian, Ne∣mean, Isthmian Games, in the time of War, had sa•…•… guard 〈◊〉〈◊〉 security. Thucyd. l. 5. & 8. Plutarch. Arato.
C. de treug. & 〈◊〉〈◊〉
Lib. 2. Bibl.
Xenoph. de Cyri. inst. 5.
Ad Bonifac. epist. 1.
Plutarchus Marcello: Epa∣minond is and Pelopidas, nei∣ther killed any after victory, nor brought Cities into •…•…irude; and the Thebans, it is believ'd, would not have done what they did against the Orchomenians, if they had been present. Marcellu followed their example, having taken Syracuse, as Plutarch there saith. See the same Plutarch in his Cato Uticensis. Procopius Persic. 1. When Ca•…•…ad King of Persia had taken Amida by force, and much slaughter was made, an old Priest told him, It was not royal to kil those whom he had taken. Idem Persic. 2. To rage against captives is contrary to piety. In the same Author is an excellent oration of 〈◊〉〈◊〉 to his Soldiers, Gott. 2. The Emperor Asexius in Annas Com∣nenas saith to one, perswading him to kill the Scythian Capti•…•…: Though Scythians, yet they are Men; though enemies, yet are they worthy of compassion. Gregoras lib. 6. What is done in the heat of battell is capable of pardon, whatever it be, because at that time the hand is not governd by reason; but when the d•…•…n∣ger is past, and there is time to examin and judge, to let the h•…•…nd be 〈◊〉〈◊〉, and do things undecent, is a token of an evil mind. See Chalcocondylas, of the landable custom of the Polo∣nians. Julian in his second Laudation of Constantin, under whose person he describes a good Prince: Being Conquero•…•… in battell, he eased the sword of any further work, thinking it great imp•…•… to take away life from one that ceaseth to defend himself.
Lib. 13.
Lib. 17.
Lactantius l. 5. Parcitur Vi∣ctis, & est locus inter arma Cle∣mentiae.
Histor. 4.
Aristides de Pace, 2. Hominum est nostri ingenii re∣sistentes armis 〈◊〉〈◊〉, prostra∣tos tractare le∣niter.
2 Reg. 6. 22.
Apud Euri∣pidem in Ha∣faclidis quae renti nuntio, Hostem perimere vestra, Lex ergo verat? Respondet Chorus, Quem Mars reliquit praelio superstitem. Ibidem Euristheus Captivus: Que me necabunt, non erunt purae mauus.
Lib. 12.
Capitol. M. Antonio. Aequitatem etiam 〈◊〉〈◊〉 hostes •…•…stodivit.
De benef. 5. c. 18.
The Romans to the Persians in the fort of Petra, Gotth. 4. We take pity on you, while you strive with your yoke, and we would spare you though you desire death, and save you against your wills, as be∣comes Chri∣stians and Ci∣tizens of the Roman Em∣pire. Vide Serranum in robus Franc. 1. & Henrici 2.
Thucyd. lib. 3.
Caes. l. 2. de bello Gallico.
Cic. Offic. 1.
So Scipio Aemilianus at the overthrow∣ing of Car∣thage, procla∣med. They should fly that would. Pelybius.
Annal. 12.
Bello Jug.
L. 1. de ord. Rep.
Livio; jure belli in armatos repugnautes{que} caedes. & alibi; qui dedit•…•… con∣tra jus ac sas bellum intulisset lib. 45.
Vide Vict. de jure belli, n. 49. & 60.
P. 2. n. 112.
De pace 2.
Plut. Timon. & Dione.
Lib. 1. Gotth.
Polyan. lib. 4.
Lucan. ———Vincat quicun{que} necesse Non putat in victos saevum distringere ferrum, Qui{que} suos cives, quod signa adversa tulerunt, Non credit fecisse nefas.———
This seemed cruel to after∣ages, as Ser∣vius notes up on the 10. of the Aeneis.
2. Deira. cap. 10.
Quicquid multis peccatur, inultum est. Scholiastes Inv. ex Luca∣no. August. epist. 64. Ma∣gis monendo, quàm minando: Sic enim agendum est cum multitudine peccantium: •…•…ritas autem exercenda est in peccata paucorum.
Tot simul infesto juvenes occumbere letho, Saepe fames, pelagi{que} furor, subitae{que} ruinae, Aut coeli terrae{que} lues, aut bellica clades, Nunquam 〈◊〉〈◊〉 fuit. Lucan.
Vict. de jure belli. n. 43.
Lib. 1.
Livius, lib. 28. The same sa th Julian, in Nicetas. l. 2.
Menoch. arb. q. 7.
Compare the story of Hostages re∣fusing that burthen, and punishe for it, in Nicetas, l. 2.
Liv. lib. 2.
Id est, 〈◊〉〈◊〉 Grae∣ciloquuntur, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Arr. 1.
Plutarch re∣prehends De∣metriu for ex∣posing his sol∣diers to dangers, and thrusting them into battells, 〈◊◊〉〈◊◊〉 of a desire of glory, than for any Advantage.
Cap. 12.
Vict. de jure belli, n. 52. & 56. Polyb. lib. 5.
Strat. c. 6.
Philo de vi∣ta contempla∣tiva: Solent ho∣stes vastare & arboribus nuda∣re terram hosti∣stilem, ut hostes eo facilius se dedant, rerum necessariarum penurid. Idem de diris: Du∣plex sibi matum acquirunt, ino∣piam amic is, co∣piam hostibus. Herod. l. 1. Pol. l. 4. Front. strat. 3. cap. 4. Liv. l. 5. 3. 34. 40. Caes. de bel, Gal. lib. 6.
Philo de creat: ubi legi haec verba af fingit: Quid rebus manimis quae & mites sunt & mites fruct•…•… ferunt irasceris? An vero in morem hominum qui hostes sunt, ini∣micitiae signifi∣cationem arbores produnt, ut pro his quae saciunt aut facere mi∣nantur stirpitus evellendae sint? Quin prosunt victoribus 〈◊〉〈◊〉; •…•…∣piam rerum quas necessitas exigit, imo, & voluptatem. Non soli •…•…∣mines tributa ferunt, sed meliora arbores statis temportbus, ac tali•…•… fine iis vivere non detur. Alter ejusdem locus de Humanitate: Ae∣quitatem suam etiam largius 〈◊〉〈◊〉 Moses 〈◊〉〈◊〉 ea ubertim ac •…•…∣beraliter utitur, discedens à ratione utgntibus ad muta animantia, ab 〈◊〉〈◊〉 verò ad ea quae è terra nascuntur, &c.
Porphyr: Parci etiam 〈◊〉〈◊〉 lex, in terra quamvis hostili, animantibus operum sociis, ita ut ea occi•…•… non liceat.
Yet with this exception, un∣less trees in suburbs hin∣der the shoo∣ters.
De Offic. 1. Prodomo sua ad ad Pont.
Excellent to this purpose is the letter of Belisarius to Totilas, wher∣in he saith, It was thought a part of wise and civil men, to erect fair buildings; to demolish them was the part of those that blush not to leave to poste∣sterity marks of their foolish cruelty, &c. Vi∣de Procop. Gotth. 3.
Equidem fatebor (pace dixisse hoc 〈◊〉〈◊〉 Argiva tellus liceat) affligi Phrygae Vinci{que} voll•…•…; ruere & aequari solo Etiam argtassem. Se•…•…eca Troad.
Jos. 6. 2 Reg. 3. 19.
Justin. l. 5.
Gelimer and the Vandals besieging Car∣thag•…•…, neither took the prey, nor wasted the land, but were as careful of it, as of their own: Procop. Vandalic. 2. Apud Helmol∣dum lego, l. 1. c. 66. Nonus terra quam de∣vastamus terra nostra est, & populus quem expugnamus po∣pulus noster est? Quare ergo in∣venimur hostes nostrimet, & dissipatores •…•…∣ctigalium no∣strorum? Vide Bembum. l. 9. Parutam hist. 6.
Vit. Flamin.
Herod. lib. 1.
Sen. Theb. Nemo sic. vastat 〈◊〉〈◊〉 Quae corripi igne, quae meti gladio jubes, Aliena credis.
Lib. 2.
Plutarch in his Greek qu•…•…stions hath the same of the Mega∣reans: Proco∣plus in the third of his Gotth. of To∣tilas when he besieged Rome, saith He did no hurt to the Husband-men through all Italy, but com∣manded them, as they were wont, to till the earth with safety, so that they brought him tribute. This saith Cassiodor, is the grea∣test praise. 12. 15.
C. 2. de treug. & pace. Nic. Damasc. Aeli∣an. 5. 14. Dion. Chry. orat. 64.
L. execut. C. quae res pign.
Etiam in Pe∣loponneso. Varr. 2. de re rust. Columel. princip. lib. 6. Plin 8. 45. Aelian. de hist. anim. 2. cap. ult. Porphyr. 2. de abstinen. Ve∣get. 3. de arte veterin.
Vide Plin. Hist. Natur. 8. 38. & 35. 10. & Plutar∣chum Demetrio.
Gell. l. 15. 31.
Protogenes. Polyb. l. 5.
Verrin. 2.
Polybius in excerp. Peires. When thou art angry with men, to be im∣pious therefore against the gods is a sign of the greatest folly. Better it is, said Severus, that God should be any way worshipt there, than it should be turnd into a stable. Lampr. Ann•…•…bal, for religion sake, spared the temple of Diana at Saguntum. Plin. 〈◊〉〈◊〉. 〈◊〉〈◊〉. 16. 2. We do not take away their Temples from ene∣mies and foreiners. Appian. Of the Religion of Agesilaus, See the Latin writer of his life, and Plutarch; Who communicateth this praise to many Romans, in Sulla. Vid. Brodaeum 5. Miscel. 〈◊〉〈◊〉 the Moor, being no Christian himself, honoured the Churches of Christians, which the Vandals had profaned, against whom he hoped the Christians God, who ere he was, would show his displeasure. Procop. Vand. 1. Chosioes the Persian, no Chri∣stian, spared the Christians Church at Antioch. Pers. 2. Just 〈◊〉〈◊〉 also durst not retein the things Vespasian had brought to Ro•…•… out of the Temple at Hierusalem, and being found at Rome G∣zerichus had carried into Africa. Vandal. 2. How the •…•…∣tans sav'd the holiness of that place, where the bones of 〈◊〉〈◊〉 and Daniels three fellows were buried, is testified by 〈◊〉〈◊〉 the Jew in his Itinerary.
Silv. de bello. p. 3. n. 5.
De Romanis Capua capta sic Sillus lib. 13. Ecce •…•…epens tacito percurrit pectora sensu Religio, & saevas componit numine mentes, Ne st immam taedas{que} velmt, ne temola sub uno In cinerem sedisse rogo.
Liv. 42.
Lib. 44.
Stra. l. 4.
Lib. 1.
Diod. lib. 19. L. 1. de C. D.
Under Alari∣chus of whom Cassi dore re∣late this me∣morable act, 12. 20. That when the Ves∣sels of S. Peter were brought to him by his men, he sent them back by the same hands, that they might blot out their sacrilege by their devotion.
Not only Christians but Barbarians have been al∣lowed the be∣nefit of San∣ctuary. Vid. Zosim. l. 4. de Tomit. barb.
L. sunt perso∣nae. D. de re∣ligios. Eurip. Troad.
Appian. Pun.
Lib. 42.
Vertina 4.
Lib. 14.
The like sact of Prusias is detested by Polybius, whose words Suidas hath preserved, in vocab. Prus.
Xen. hist. Gr. 4. & Plutarch. A∣gesilao.
Spoliatis ar∣ma supersunt.
Lib. 34.
Lib. 49.
Lib. 3.
Titus Quintius Flaminius.
Lib. 5. 3.
Lib. 26.
Aegid Regius de act. supernat. disp. 31. dub. 7. 〈◊〉〈◊〉. 127.
Cap. 13.
Vide quod ju∣dicavit Inno∣cemius Ponti∣fex apud R•…•…m∣bum, 1. Victor. de jure bellin. 55, 56.
Silv. verb bell. n. 10. Vict. n. 51.
Lib. 27.
The King of Polonia al∣leges this cu∣stom for him∣self in Thua∣nus, l. 73. an. 1581. Sic apud Hom. Il. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 vo∣cein 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Scho∣liastes interpre∣tatur 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Lib. 33.
He addeth, that a Credi∣tor cannot come with any modesty to the surety, except he cannot re∣cover of the debtor. Vide C c. ad Att. 16. 15.
Aegid. Regius de act. supern∣disp. 31. dub. 7. n. 117.
Ptolomy re∣mitted to De∣mettius the son of Anti∣gonus his tent and all perti∣nents to the care of his bo∣dy, with his money, too, saying, Their quarel was not for every thing, but for Empire and honour. Plut. in Demet.
Appian. Ci∣vil. 2. The old Romans did not take away all from the conquer'd, but divided their Lands with them. So did the Vandals in Afric, and the Goths in Italy, as History shews.
Arrian. l. 3.
Cap. 14.
Vict. de jure belli. n. 41. Dec. l. 2. c. 5. dub. 4. Covar. c. peccatum. p. 2. ¶. 1.
His son A∣lexander, Thebes being taken, ex: mp∣ted from servi∣vitude, both the Priests, and those who had not assented to the Decrees made against him. Plutarch.
Philo saith, Fathers for their children, and children for their Fa∣thers have of∣ten paid a ran∣some, when they were ei∣ther taken a∣way by rob∣bers, or made prisoners of war: whom truly, the Laws of Nature, stronger than these Laws made on earth, write free men. He∣lena saith in Theodectes; Who dare call me a servant, that am on both sides descended from the Gods?
Sen. de benef. 3. c. 22.
Sen. Epist. 47.
Coloss, 4. 1.
Eph. 6. 9.
Lib. 7. c. 14.
Sic & in ep. Barnabae est: Noli acerbè im∣perare servo aut ancillae lliae in Christum spe∣rantibus, ne eo ipso oflend as non timere te com∣munem tibi & ipsis dominum.
Paed. ult.
1. De Clem. 18. Epist. 47.
L. 3. de benef. cap. 18.
Epist. 43.
Vide Mosem de Kotzi praecept. jubent. 147. 175. 178. & collat. leg. Mo∣sis & Roman. tit. 3.
Philo de spe∣cial. legib. 2. Cyprian. ad Demetr. Non agnoscu miser dominum Deum tuum, cum sic exerc•…•…as ipse in hominem domi∣natum.
Exod. 21. 26, 27.
Vide Philo∣nem dicto lo∣co. Exod. 20. 10. 23. 12. Deut. 10. 14.
Sen. epist. 47. Non tan∣quam homini∣bus, sed tan∣quam jumentis abutimur. Of the Athe∣nians lenity to their servants, See Xenoph. de repub. Athen. Epist. 47.
Epicurus, friends. Sen. epist. 107. Dion Prus. optimum regem describens; Domini nomen ad•…•… in bomines liberos non usurpat, ut & in servos eo abstineat. Teitul∣lian: Gratius est nomen piet at is quam potestatis. Hieronym. ad Co∣lantiam: Benignitate potius quam severitate exige reverentiam.
Servius ad illud Maronis: Claudite jam nivos, pueri.
Sen. l. 3. de beuef.
Ciceró: opera exigenda, iusta praebenda. Atist. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 1. Oecon. 5 Sirach. 33. 25. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
El Isaaci An∣geli in Siculos captivos memo∣ran•…•…e Niceta lib. 1.
Phorm. act. 1. sc. 1.
Varro de ser∣vis; Studiosio res ad opus fieri liberalius tra∣ctando, aut ci∣bariis aut vesti∣tu largiore, aut remissione operis, concessione{que} ut peculiare ali∣quid in fundo pascere licent.
Seneca: Nun∣quid dubium est, quin servus cum peculio da∣mini sit? Dat tamen domino suo munus.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Instit. de his qui sui vel al. L. manumiss. D. de just. & ju.
Andr. act. 1 1. Servibas li∣beraliter. Ita MS. recte.
Lib. 3.
Deut. 15. 13.
Consuetude id interpretata, ne minus 30. Siclis delur. vide prac. jubente 84.
Silv. verbo ser∣vitus, S. 3. Fortunius in l. manumiss. D. de just. & ju.
Less. l. 2. c. 5. dub. 5.
Deut. 15. 13.
In the war of the French with the Spa∣niard in Italy, a horsman was rede•…•…n'd for the fourth of his yeerly pay, See Mariana l. 27 18. Qu. Gr•…•…c.
The like goodness of Tiberius a Christian Em∣peror toward the Persians is commended by Menander Protector: of Sisebutus by Mariana, and of Sanctius King of Ca∣stile, Lib. 11.
2. Cyropaed.
Vita Dem. Strab. l. 7.
Diod. Sic. in excerpt.
Cap. 15.
Vict. de jure belli. n. 38. & 59.
Jugurth.
Derepub. l. 7. c. 14. & 15. Nic. 10. c. 7.
De ossic, 1.
Tho. 1. 2. q. 40. art. 1. ad 3.
Alexand. Imp. Arta∣xerxi Persae: Manendum cui{que} intra suos sines nibil no∣vando, ne{que} de∣bere quenquam incerta spe sublatuns bella incipere, sed suo esse cont•…•…ntum.
De Ci•…•…t. Dei li•…•…. 4. 15.
Cyril in his 5. against Ju∣lian commends the Hebrew Kings for this, that they were content with their own bounds. Am. 1. 13.
Lib. 2. de Ira. cap. 34.
Annal. 5.
L. in orbe. D. de flat. hom, L. Roma. D. ad munic.
Claudian: Hu∣jus p•…•…ficis de∣bonius moribus omnes, Quod c•…•…ncti gens una sumus.
Seneca Troad Hostis parvi 〈◊〉〈◊〉 lacry 〈◊〉〈◊〉, Susci∣pe di•…•…u rector h•…•…enas, Pa∣trio{que} sede cel sus 〈◊〉〈◊〉: Sed sceptra fide me∣liore cene.
Ael. l 4. 5.
Herod. lib. 7.
Pipiuus to A. stolphus Longobard.
* De clem. 1. 21. The whole place is worth reading, where he also calleth it a triumph after victory. Pompey left Tigranes a part of his King∣dom. Eutrop. l. 6.
Liv. lib. 32.
Vid. Poly∣bium, exc. Legat. n. 6.
Mithridat.
Apud Tacitum est: Zo sini victo nihil ere∣plum. Annal. 12.
Yet was that remitted after∣wards. Plut. Flaminio.
Lib. 1. ad Q. fr. epist. 1.
Hist. 4.
Vide de Per∣sis Agathiam lib. 4.
Plutarch. qu. Rom. 15.
Livius; faci∣lius parari sin∣gula quam teue∣vi universa. Au∣gusti dictum apud Plutar∣chum: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Augustus is prais'd in Dion, that he was not ambi∣tious of more, but to keep wha•…•… he had. Thuc. 1. Isoc. Pan. Demosth. orat. de che•…•…s.
Annal. 6.
Hist. 2.
Eidem An∣tiochus inser∣vientium regum ditissimus. Strabo 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Lucanus At{que} omnis Latio quae servit purpura ferro. Vid. Panegyr, Ma∣ri•…•…. dict.
Such Kings were of old in Italy, under the Empire of other Kings. Serv. ad 10. Aen. So among the Turks. Leuncl. lib. 18.
Part. 1.
Philo in his Embasly to Caius, saith, Augustus had as much care to keep the Laws proper to every Na∣t•…•…on, as the Roman.
Vid. ep. 93. Plin. & s•…•…q. T•…•…aj. lib. 10. Cic. l. 6. ad A•…•…tic. epist. & 5. 21.
Melius est ibi aliquem coli Deum, quam nullum. Severus. So the Gotths in Procop. Gott. 2. 〈◊〉〈◊〉 they forced none to their Religion.
Xenoph. Cyrop. lib. 4.
Vit. Agric.
Liv. lib. 8.
Liv. lib. 8.
Diod. lib. 13.
Scythae A∣lexandro: Inter Dominum & servum nulla amicitia; etiam in pace, belli tamen jura serv•…•…. Curt. lib. 7. Salubri Taciti Sententia: Bellorum egregii fines, quo∣ties ignoscendo •…•…ransigitur. In Caesatis Dictatoris epistola est: Hac Nova sit ratio vincendi, ut misericordia & liberalitate nos munia•…•…. The Lacedemonians in Thucydides lib. 5. We are of opinion, quarels are turned in firm concord thus; not if one; in revenge and taking advantage by his, success, impose upon others a neces∣sity of sweating to unequal articles: but if, when he is able to do so, he use as much equity now, as valour before, and compose matters with as much moderation as may be.
L. traditio D. de acq. dom. Lib. 5. de benef. cap. 12.
Liv. lib. 3.
Polyb. hist. l. 3.
Plut. Apoph. App. Pun. Adde Valer. Max. l. 1. c. 1. n. 6.
Verrina de signis.
Strabo, l. 13.
Gen. 14. 16.
Gen. 14. 21.
Benè hoc no∣tavit Jacchi∣des ad Daniel. 5. 17. Sulpiti∣us de Abraha∣mo: Reliqua his quibus e∣repta erant red∣didit. Ambros. lib. 1. de Pa∣triarchis: Ideo, quoniam sibi mircedem ab homine non quaesivit, à Deo accepit. Non multum hinc distant facta. Pittaci & Ti∣molcontis: Pittacus Mily∣•…•…enaeus 〈◊〉〈◊〉 re∣cuperat•…•… agria•…•…∣midia pars con∣•…•…su omnium offerretur, avertit animum ab eo in•…•…re, deforme sudi-•…•… virtutis gloriam magnitudine praedae minuere. Val. Max. l. 〈◊〉〈◊〉. c. 5. n. 1. De Timoleonte Plutarch. vid.
The Exiles of Sa∣•…•…um, after six years, were restored by the Romans. Antonius 〈◊〉〈◊〉 liberty those who were brought into servitude in the War of Cassius, and restor'd their Goods to the Owners.
Liv. l. 2. 〈◊〉〈◊〉. 1. 72. Xenoph. Hist. Gr. 3. Liv. lib. 34.
Ciecro Offi•…•…. 2.
Quod secie rex Ferdinandus memorante Mariana, l. 29. c. 14.
Cap. 17.
Part. 2.
The like te∣stimony Plu∣tarch gives to T•…•…tus Q. Fla∣minius.
And Plu∣tarch saith, when he heard of his Soul∣diers license, he s•…•…a ed up 〈◊〉〈◊〉 words, and punish•…•… e∣very one that brake the Seal. & 9 2.
Cassiodor. 5. 10. & 2. 13, 25.
Claudian: Tanta quies, tantus{que} metus servator honesti Te moderante suit, nullis ut vinea surtis Aut seges erepta fraudaret messe colonum.
Th's virtue is oft commended in Belisarius by Procopius, his Companies, and witness of his actions. See to this purpose his excellent speech to his Souldiers near Sicily, when he marched into Africk, and the narration of his march through Africk, Vandal. 1. The like praise of the Almains in their expedition to the Holy Se∣pulcher, see in Nicetas, Manuele Comneuo. Gregoras, l. 9. com∣mends the same in the Venetians.
Plin. Hist. Nat. 26. 4. Cúrve Romani duces p•…•…imam semper in bellis commerciorum curam h•…•…buêre? Cassiod. 4. 13. Habeat quod emat, ne cogatúr cogitare quod auferat. Simi∣lia habet, 5. 10, & 13.
L. 18. Vide & Ammianum lib. 21.
Vop. Aurel.
* Xenoph. Ex∣pedit. lib. 6. Luk. 3. 14.
Ambros. ad hunc Lucae locum: Iccirco stipendia con∣stituta militiae, ne dum sum∣tus quaeritur, praedo grassetur. Sunt egregiae ad bane rem Constitutiones apud Greg. Turon. lib. 2. 27. Frederici primilegom sic resert Guntherus: Si quis pacificae plebis villasve domosve Vsserit, ab rasis signabitur or a capillis, Et pulsus castris post vulnera multarecedet.
Sic & Guic∣ciard. disserit, lib. 16.
Lib. 4. c. 1. See Spartian of Niger's se∣verity for a stoln Cock.
De Praet. Vrb.
Aegid. Regius de act. supera. disp. 31. dub. 7. n. 95.
Exemplum nobile vide a∣pud Parutam, lib. 8. Lib. 1.
Lib. 3.
Gotth. 1.
Demost•…•…e∣nes: Qui ea facit & machinatur, quibus ego capi possim, etiamsi nec seriat, nec jaculum emittat, hostis mihi est.
Liv. lib. 37.
Plut. Bruto.
Liv. lib. 35.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
Cap. 18.
Offic. 1.
Xenoph. Cyrop. Plut. Quaest. Rom. 39. & Marcello.
De ira, c. 9.
L. descrtorem. D. de re mil•…•…t.
Liv. l. 7. Manliana Imperia.
Ita Avidius Cassius cau∣sam sententiae suae reddebat: Eveni•…•…e potuisse ut essent insi∣diae. Volcati∣us.
Arrian. 2. 6.
Part. 2.
Serv. ad. 8. Aen.
C. quando li∣ceat unicui{que}. l. 1, & 2.
Silv. in verbo bellum, n. 8. vers. 5.
Plutarch blames Crassu•…•… for this, that he got his wealth out of the fire and war, turning the common calamities in∣to private gain.
Part. 2.
Silv. in verbo bellum, p. 1.
Cicero Offic. 3.
Aristoteles Rhetor ad Theodect. 1. 15.
Seneca epist. 88.
Cic. pro Q. Rosc.
Sallust. Orat. ad Caes.
Augustin. epist. ad Bonifac.
Arist. 7. pol. 2. & 14.
The Embas∣sadors of Justi∣nian in Proco∣pius (Persic. 2.) address their speech to Chosroes after this manner: Did we not see you 〈◊〉〈◊〉 with our own eyes, and pronounce these words in your ears, 〈◊〉〈◊〉 should never have believed that Chosroes the son of Caba•…•… would bring his Army, and enter forcibly into the Roman 〈◊〉〈◊〉 •…•…ontrary to his Oath; the firmest bond of Truth among men; contrary to his League, the only hope left to those that are af∣flicted with war: For what is this, but to change the life of men into the life of wild beasts. Take away Leagues, there will be e∣ternal Wars. And Wars without end have this effect, to put men beside themselves, and devest them of their nature.
Rom. 12. 18.
Philo de con∣stitutione principis: Pax, quamvis cum magno detri∣mento, bello uti∣lior. Communis Mars.
Quippe timen∣da etiam me riem•…•…s lustra Leonis.
Chrysost. serm. de Elec∣mosyna; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.