CHAP. I. What causes make warres iust or vniust, and what are the effectes of lawfull warres, and what solemnities or circumstances are to be considered in defiance of our enemies, and first attempts of warres.
IT is needelesse (as I suppose) to dispute, whether it be lawfull, either for Christian Princes to make warres, or for christians to serue in warres. Those that thinke it vnlaw∣full, as men deuoyd of iudgement in religion and state, are declared long since to be both heretical, and phrenetical persons. The law∣fulnes there of is apparent, for that most godly and religious princes, as Iosuah, Dauid, Iehosaphat, Iudas Macabeus were great warriers, & their warres so allowed, that the spirit of God calleth them the warres, or battels of the Lord, neither was the same altered by Christes comming, as the Anabaptists dreame. The holya Apostle sheweth, that the Magistrate carrieth not the sword in vaine. But he should carry it in vaine, if hee might not as lawfully repell publike force, as he may punish therewith priuate wrongs. Iohn Baptist when the souldiers came vnto him, he exhorted them not to giue ouer their manner of liuing, but to con∣tent themselues with their wages, & to do wrong to no mau,bCor∣nelius the Centurion notwithstanding his souldiers profession, hath a notable testimony of the holie Ghost, to be a man that feared God: and if he had not beene such; hee had not receiued the holie Ghost. The true seruants of God (sayth S.cAugustine) make warres, that the wicked may be restrained, and goodmen be relieued. Beside this, what state in this notable corruption, & malice of mens nature could endure any time, if warres against violent persons were vn∣lawfull? Page 2without warres who can warrant vs against spoyle and iniury? it is the law of nature, and nations that putteth weapons in our hands for our defence; without warres ciuill lawes against rebellious subiects cannot be executed; and so should remaine with∣out edge. S.aAmbrose saith, that it is the office and parte of iustice by warre to defend our country from the enemy, our confederates, and such as by reason of their weakenes neede our aide, from spoy∣lers, and oppressors. Wherefore taking this as granted, that some warres are lawfull: let vs proceede to examine, what those things are that giue vs iust cause of warres, which is a matter much to be regarded, vnlesse we will be accompted among those tyrants that rage and vexe men without cause.
If the cause of him that warreth be good, the issue cannot be e∣uill, saithbBernard. theccause, as it is good or euill, so either aba∣teth and breaketh, or whetteth the souldiors courage.dand good and iust causes make men hope ro receiue fauour of God in the is∣sue, and triall.ethe euent oftentimes is according to the iustice, and qualitie of the cause; andfseldome do they returne in safety, that go forth to draw their swordes in euill quarrels. Dionysius ofg Ha∣licarnassus sayth, that the Romanes therefore preuayled for the most part, for that they enterprised no warres without iust causes. contrariwise theh Gaules which accompted that iustly gotten, which they could winne with their sworde, though otherwise very valiant, receiued many great foiles. for this cause (as sayth Philip ofiCommines) Princes when they list to quarrel with their neighbors, pretend honest causes, although oft times vntrue. The French that with some colour they might receiue such as in Gas∣coigne, or Guienne rebelled against the kings of this realme, subor∣ned certaine Gascoignes, and Poicteuins to complaine of vniust ta∣xations made by the English in the dayes of Edward the third, and Richard the second. And Lewis the eleueuth of France instigated certaine rebelles to complaine ofkCharles duke of Burgundie, that vnder colour of doing iustice, he might with more reason inuade his territories. These pretenses & shewes make great disputes betwixt princes, and states, while euery man will seeme to make his cause good, and to do nothing without iust causes. Let vs therefore now consider, what causes are sufficient to iustifie the taking of armes, what are counterfeit, and insufficient.Page 3
First it is lawfull to vse •orce, and take armes in defence of our country, true religion, our goodes or liberty.aReason teacheth the learned, and custome instructeth all nations thus much, which euen the instinct of nature printeth in wilde and sauage beastes, that it is lawfull to repell force offered to our life, to our person, and the state with force, and by what other meanes wee can. Most iust cause therefore had the Romanes to make warres vpon the Gaules, vpon Annibal, vpon the Daues, and other barbarous nations, that came to take away their country from them; & like cause had the Greeks to withstand the Persians, & other barbarous people, that by armes would haue conquered them, and depriued them of their country and liberty. the same cause did the ancient Britons defend against the Romanes, Saxons, Danes, and Normans, though not with like successe. And seeing of late time the Spaniard came vpon our coast with fire and sword, menacing the English nation with all the cala∣mities that follow such inuasions, I thinke no man will deny, but we haue iust cause to put on armes in defence of our countrey, reli∣gion, liues, liberties, and lawes. in this case not onely our cause is iust, but the warre is of necessity to be vndertaken, which greatly hel∣peth the iustice of our cause. for as the captaine ofb Samnites said in like case, that warre is iust, whereto we are inforced, and with good cons••nce may we take armes, when there is no safety for vs, but in armes.
It is likewise lawfull to represse pirats, and publique robbers by force of armes, if they will not yeeld themselues to be tried by order of common iustice. They are enemies of peace, & ciuil gouernment, and by the lawes defyed, and proclaimed as publike enemies of states. their bodies may be taken, and their goodes spoiled as in warres with other nations. The warres made by the Romanes a∣gainst Spartacus, who, assembling a mutinous route of rebelles and hindred al trade, was iust and necessary. in thisccase, because such do rise and assaile vs vpon a sodaine, the law of nature giueth war∣rant of defence without publike commandement or commission. neither is it onely lawful, to cleare the sea of pyrates, but also hono∣rable.dMinos made his name famous, for that he cleared the sea of pyrats, and opened the way for marchants. which fact also procured Page 4great commendation to Pompey the Great. Moreouer, if our coun∣try be wasted and spoiled, and our goods taken away by forreiners: it is lawful by force and armes to seeke for restitution, if otherwise it cannot be obtained. Tullya accompteth that warre iust, that is made after demand of things wrongfully taken, & vniustly deteined. these quarrels often fal out betwixt borderers, theb Romans for this cause made diuers roades vpon the Sabins, Volscians, Albans and others their neighbors. Tullus Hostilius had no other causes of his warres against the same people. This hath bene the beginning of many con∣tentions betwixt vs and the Scots. of the warres betwixt thec Ro∣mans and Sabins there was no other cause, but the spoile of the Ro∣man marchants. among other causes of the third warres of thed Ro∣manes against the Carthaginians, the taking of certaine shippes, and spoiling of certaine Marchants is alledged as principall. The Switzers beganne their braules with the Duke ofe Burgundy for a loade of skinnes taken away by the Countie of Romont. likewise it is, where at a sodaine roade our goodes are spoyled, or driuen a∣way, and deteined from vs. for which cause the Romanes warred vpon thefHetruscians & diuers of their neighbors. Iust cause there∣fore haue wee also in this respect to make warres vpon the Spani∣ard, that without destance of warre, stayed our shippes, and our marchants, and spoiled their goodes. were not mens minds ••oled, and almost frozen with feare and age, these iniuries would inflame them. howsoeuer it is, men ought not to stay vntill the flames of our country enflame them.
In this case those that first offend do giue iust cause of warres, not those that seeke restitution by armes; as is euidentgby the example of the Romanes, and Albans, where the first iniury being offered by the Albans, made inst the cause of the Romanes. Yet if things taken away be offered againe, and satisfaction be promised to bee made for wrongs done; it is not iustice nor reason, further to prosecute the quarrel begunne. it seemeth not reason (saiethhArchidamus) to prosecute him by force, that submitteth himselfe to order of lawe. and commonly those that refuse reason when it is offered, come af∣terward to wish they had taken it, when they can not haue it. The French disdaining and scorning the great offers made by the blacke Prince, were shamefully by him ouerthrowne at the fielde of Poytiers. Thei Romanes refusing the satisfaction made by the Page 5Samnites, receiued a notable disgrace being by composition disar∣med to saue their liues at the streites of Caudium: and Philip of Commines conceiueth, that Charles duke of Burgundy prospered neuer the better, for that he refused the humble submission, and satis∣faction of the Switzers, desiring peace at his hands.
The iniurie that is done to the subiects redoundeth to the Prince, and reproches and contumelies done to ambassadours, and messen∣gers returne vpon those that send them. both these things minister lawfull cause for Princes, & states to take armes in hand. The Ro∣manes with sharpe wars prosecutedaMithridates, for that by one generall proclamation he had caused diuers of their people to be massacred in Asia. the same cause armed them against the Latines and Volscians. The Volscians againe inuaded the Romans, for that reprochfully their people were commaunded out of the Citie at the time of theirbpublike games. The Heduans rebelled against Caesar vponcconceit of some wrong offred to their people in ye campe of the Romanes. And among al causes of warres betwixt Princes, this is commonly inserted for one, that either their subiects are slaine, or wronged: as appeareth both in the beginnings of the Romane warres against the kings of Macedonia, and also against the people of Carthage: and the same was ye common pretense of thed French, to inuade vs when we held Gascoigne, Guienne, and Normandy.
Yet more neere doth it touch a Prince when his ambassadours are violated, forasmuch as that iniurie is thought to be offered to his owne person. Therefore did Dauid warre vpon the children of Am∣mon for the villeny they offered his ambassadors. The shamefull re∣proche which the Corinthians offered the Romane ambassadours, was the cause of the warre betwixt the Romanes and them, and of the sacke of Corinth. Friderick Barbarosse for a scorne offered him by them of Milan, besieged and tooke their Citie. the first quarrell betweene thee Romanes, and Veians grewe vpon a proud answere which the Veian Senate made. And deare it cost the Rhodians, that taking part with Perseus, they abused the Romanes in their inso∣lent termes. The slaughter of the Romane ambassadours, was the first cause that moued them to warre vpon Gentius-king of Illyrium, and aggrauated the wrath of the Romanes against the Veians: and caused Caesar to sacke diuers cities of thefArmoricans.
The rebellion of subiects against their lawfull Princes, is also a Page 6sufficient cause to arme the prince against them. he carieth not the sword for other purpose, but to represse the wicked and rebellious. king Dauid prosecuted not onely the rebell Ziba, but also his owne sonne Absalo• that rose against him. the Romanes suppressed the se∣ditious Gracchi, Saturninus and Catiline. and iust cause had our Prin∣ces to subdue by armes the seditious route, that vnder the leading of Iacke Cade, Iacke Strawe, Kette, and other rebels rose against their liege and soueraigne Princes. for although rebels and pyrats, and robbers are not accompted among the number of lawfull enemies, which the Romans called hostes legitimos, nor did enioy thearight, nor were to be vsed as enemies in lawfull warres; yet is the force vsed against them most lawfull.
Moreouer it is a lawfull, and iust cause for a prince or nation to arme their people in defence of their associates, or such as flie vnto them for succour being vniustly oppressed. Deliuer those (sayth the wise man) that are drawne to death. those that are wronged (saythb Aristotle) not onely may, but ought for their honors sake, to arme in defence of themselues, their allyes, and friends, and to helpe their associates being oppressed. Cicero in his bookes de rep. alloweth those warres to be lawfull that are made aut pro fide, aut pro salute. that is, eyther for our owne defence, or for defence of our friendes, whome wee are bound by promise to helpe. and as well doeth heccharge them with iniustice, that repell not iniurie, when they are able; as those that doe wrong themselues. And if we giue credit to Saintd Ambrose, valiant men, that defend their countrey from barbarous people, and protect the weake, and shielde their associ∣ates from such as would spoyle them, doe the office of true iustice. for defence of theireconfederates, the Romanes receiued this re∣ward, that they became the lordes of the world. the Romanes had no other cause to enterprise the warre against thefSamnites, but for the defence of the Campanians, which were vniustly vexed, & had yeelded themselues into their protection. The first Cartha∣ginian warres had no other originall, but for the defence of the Ma∣mertines. for the same cause likewise did they send defiance to Philipg king of Macedonia, for that he vexed, and iniuried their confede∣rates in Greece. Iosua protected the Gibeonites requiring his ayde, from the conspiracie of the kings of the Cananites. the forsaking of our associates & friends,hSthenelaidas the Spartian calleth treason, Page 7and disuadeth the Spartans from committing any such offence. the Romanes wereaaccused of treason, for that they abandoned their confederates the Saguntines being besieged by Annibal. for which fault they endured the penance of sixteene yeeres warres in Italy. neither was any thing more infamous in Charles of Bur∣gundy his actions, then his colde defence of his associat the duke of Britaine. Philip of Commines accuseth Lewes the 11. for abando∣ning his confederats of Liege. Caesar,bleast all his associates in France should forsake him, was driuen with great hazard to suc∣cour his friends besieged in Gergouia. the duke of Normandy, yon∣ger brother to Lewes the 11. ouerthrewe his owne estate departing from the association of Charles duke of Burgundy. wherefore we haue not onely iust cause to warrant our proceedings against the Spaniard in defence of our confederates of France, and the lowe Countries; but also necessarie reasons to moue vs to prosecute mat∣ters more forcibly, vnlesse we meane to engage our honour, and neg∣lect our owne estate. what wisdome or honour it was to refuse them, that yeelded themselues before the surrender of Antwerpe vnto the duke of Parma, I report me to those that know those mysteries. sure nowe that we haue begunne to assist them of Holland and Zeland; it is neither honour, nor safetie so to mince at the matter, or to go backe. whatsoeuer we call our doings, it wilbe as the king of Spaine will take it, if euer be haue power to be iudge. the onely meanes to marre and crosse his sentence, is with great forces to withstand so mightie a Prince, and not longer to dally.
Breach of couenants likewise is numbred among the iust causes of warres. we put on armes (saithc one) eyther being deceiued by our enemies, that performe not promise, or being constreyned. the Romanes began their warres with Perseus king ofd Macedonia, vpon occasion of breach of the articles of peace made before, be∣twixt his father, and them: and for the like cause also renewed their warres with them of Carthage. and for the same cause warres haue bene opened betwixt vs, and the Scots, as at Muscleborough fielde vpon the deniall of the Scottish Queene promised to king Edward; and betweene the French, and vs.
Many wise princes haue an eye to their neighbours greatnesse, and perceiuing how preiudiciall their encrochments may proue vn∣to thē, haue iust cause to withstand them. Lewis the 11. sent ayde to Page 8the Switzers, & Duke of Lorreine against Charles Duke of Bur∣gundy hauing no other cause, then the suspicion and feare of his greatnes. The trueacause of the Peloponesian warre against them of Athens was the suspicion and feare, that their neighbours had of their power and greatnes. And yet that cause was not once menti∣oned. The Princes and States of Italy of long time haue had a se∣cret league amongst them to moderate the excessiue power of the king of Spaine in that coūtrey, if at any time he should go about to encroche vpon any one of them. Herein consisted the speciallbcom∣mendation of the great wisedome of Laurence Medici the elder, that during his time, he kept all the states of Italy, as it were in equall ballance, not suffering any to passe their ancient limits. And I doubt not but our gouernours in the defence of the lowe Coun∣tries haue a speciall regard, that the king of Spaine settle not him∣selfe in the quiet possession of Holland, Zeland, and the rest: least that enioying so many commodious portes, ships, mariners, and commo∣dities, he might percase afterward make that a steppe to stride ouer, or at least to looke ouer into England. Asceuery nation is neere to those that are subdued, so will the fire once enflamed embrace it, and so passe ouer to the rest, as Antiochus said to Prusias, perswa∣ding him in time to withstand the Romanes. The Romanes percei∣uing that the Samnites, after they had subdued thedSidicins, in∣tended to warre vpon their next neighbours the Campanians; they delayed the matter no longer, nor suffered them to proceede further. time it is therefore for Christian Princes to awake, and iust cause they haue to withstand the encrochments of the king of Spaine, that vnder pretence of the Romish religion eniambeth vpon al his neigh∣bours, vnlesse they will be swallowed vp in the vnsatiable gulfe of the ambitions tyrannie of the Spanish nation.
Last of all, whosoeuer adhereth to our enemies, and aideth them with men, munitions, and victuals against vs, they are also our ene∣mies, and giue vs iust cause of warre against them. this cause moued the Romanes to defie thee Latines, that ayded their enemies; and the same is reckened among the causes of their warres against Phi∣lip kingf of Macedonia. for he did not only aide the Carthaginians with men, but also ioyned with Annibal in league against the Ro∣manes. No iust cause therefore haue our neighbours to complaine, that we haue stayed their shippes, that caried victuals, munitions, Page 9and other commodities to the Spaniard. There is no fault but one, that as we haue stayed some, so we haue dismissed others, and haue not made prise of al by Publike authoritie, and that those of the lowe Countries do commonly trade into Spaine, for whose sake the quar∣rell is vndertaken with Spaine. The Romanes as in the treatise of peace they comprised their owne confederates; so in denouncing of warres they defied their enemies, and their associates. as is eui∣dent in that forme of defiance, which they published againstaAntio∣chus. Which ye Greekes also obserued in the Peloponnesian warres made not onely against the principals, but also all their adherents. And it is thebcommon forme of defiances vsed at this day.
As for warres vndertaken throughcambition, and anger, and such like affections, they are vniust, and the causes vnlawfull. nei∣ther are they to be excused, that forced by strong hand out of their owne countrey, doe seeke by violence to possesse that, which belon∣geth to others. For this cause ye Romanes resisted with such force the Gaules, Germanes, Danes, Gothes, and others that came to dwell in Italy. And although such wanderers haue had good successe in diuers countreys by reason of the sinnes of the inhabitants, as the Saxons, Picts, Danes, and Normans in this land, the Franks, Bur∣guignions, and Normans in Gaule, the Lombards, & Gothes, in I∣taly, and Spaine: yet was not the cause of their warres iust. for euery one is to holde him to his owne lot, vnlesse the countrey be waste, and dispeopled; which countrey God giueth to these that can possesse it. and therefore did the Sueuians iniuriously forbid any to dwell in their waste borders: and the Spaniards haue no reason by force and lawe to keepe other nations out of the Indies, which not∣withstanding themselues are not able to people.
Yet to make iustd warres, it is not sufficient only, that the cause be iust; but that they be enterprised first, by those that haue soue∣raigne authoritie; secondly, that they be not begun especially by those that inuade others, without demaund of restitution or satisfaction, or denunciation; and last of all, that they be not prosecuted with barba∣rous crueltie. The first point is expresly set downe in termes in the Romane lawes, & allowed by consent of all nations. Thee Canons doe also confirme the same. And if it were in others power, great in∣conueniences would ensue. It is a speciall marke of soueraintie to haue power of warre & peace. In Liuy these formes are very vsuall: Page 10Praenestinis ex S.C. populi iussu bellū indictum est. And againe, ex aucto∣ritate patrum populus Palaepolitanis bellum fieri iussit. The wars of the Romans against theaCarthaginians, Philip, Antiochus, Perseus, and others, were not enterprised but by auctoritie of the people, which in that state had soueraigne commandement in those times. Him that beganne any braules, or made peace with forreine nations of his owne priuate head,bPlato in his common wealth adiudgeth wor∣thie of death. And therefore did Hanno giue counsell to the Cartha∣ginians, that they should deliuer vp Annibal to the Romanes, for that he had begunne the warres against them without publike au∣thoritie. Those that offended in this case, by theclawes of the Ro∣manes were in case of treason. Marcellus vpon that ground buil∣ding his reasons, would haue perswaded the Senate to deliuerdCaesar to the Gaules. And so scrupulous haue some men beene in this Realme in stirring without commission, that they doubted, whe∣ther without commaundement they might leuy forces to represse re∣bels. This percase might seeme too scrupulous, but they thought it better to be too slowe, then too forward. For theyeare onely to be accompted publike enemies in warre, who by those that haue su∣preme auctoritie, are declared enemies. If any vpon priuate moti∣on fall on spoyling, they are but theeues and robbers, sayth Vlpian. And this (saithfAugustine) is the order of nature best agreeing with the peace of states, that the councill and auctoritie to make warres should rest in Princes. That warres are to be denounced on the assaylants side, diuers reasons perswade vs.gThere is a iustice in warres to be obserued, sayth Tully, which iustice requireth, that warres be eyther denounced, or made after deniall of things de∣maunded, that haue beene vniustly taken from vs. He speaketh of warres made by those, that inuade others. For to defend our selues without more wordes, is lawfull by the lawes both of nature, and na∣tions: and very ridiculous it were, to threaten those that haue begun to strike vs already. Those therefore that thinke we haue no warres with the Spaniard, because they haue not heard them proclaimed, are like to those that will not ward, or strike an enemie that commeth vpon them without saying, beware. Caesar minding to assayle Ario∣uistus, sent ahdefiance to him before hand. When Annibal came with an huge army into Italy, the Romanes defended themselues, without spending time about denouncing, or threatning of warres. Otherwise those that first begin warres, doe vse first to speake before Page 11they strike, which was not only ye course of antiquitie, but also of later times. Onely ye king of Spaine hath thought it lawfull vnder colour of treatie of peace, without any defiance to cut our throtes, if he could. It may be, he taketh ye Popes excōmunicatiō against yt Prince & peo∣ple of this land for a sufficient denuntiation, or warrant to inuade vs without other circumstance. This he learned of Alphonsus a Castro, that determineth warresaagainst heretikes to be lawfull, which he taketh to be defied by auctoritie of the Canon. And in his determi∣nationbBaltazar Aiala, a great man among ye Spaniards resteth: & no maruell, if they obserue no solemnities in warres against vs, whō they hold for heretikes, hauing already determined, that faithcand promise is not to be performed vnto heretikes. I neede not to de∣scribe ye forme & wordes vsed in defiances. He that will reade ye forme in time past vsed by ye Romanes, let him perusedAulus Gellius. Later formes are reported in later histories, & much talked of by Heralds, that claime yt to be part of their office. But litle seemeth it materiall to know yt formes of defiances, seeing in these times neither forme, nor substance is strictly in this behalfe obserued. Onely thus much Prin∣ces messengers yt goe vpon this arrand of defiance are to take heede: first, that they passe not ye words of their cōmission, secondly that they vse no words of reproch, or scorne. It is reported yt Frācis the 1. king of France, would not heare the Herald sent him from Charles the 5. with defiance, before he had caused a gibet to be erected to put him in mind what he should haue, if he kept not himselfe within compasse.
In executing of wars, this precept must diligently be had in remem∣brance, yt there be no crueltie vsed. There is moderation euen in the executiō of iustice, not onely in other actions of warre. And Caesar in his victory against Pompei, cōmanded his souldiers to spare the Ro∣manes. to delight in blood, is signe of a sauage nature.eThe desire of doing hurt, and crueltie in execution: a mind also implacable and sauage is iustly blamed in warres saith S. Augustine. those that yeeld themselues, are not to be slaine. Galba for that he slewe the Lusitani∣ans, after that he had taken them vpon composition, was iustly there∣fore accused by Cato. It is no victory to kil an enemie disarmed, nor iustice to kill our prisoners in colde blood. The execution done in the Generals chamber vpon the prisoners after the battel of Cognac, an. 1569. did greatly blemish his honor. Who doth not detest yef executi∣ons that haue bin done vpon men disarmed after cōpositiō at Mailè, Mucidan, & diuers other places during these late troubles of Frāce?Page 12yet may not prisoners vpon this libertie presume to abuse, or attempt any matter against those that haue taken them. for then they deserue no fauour. Caesars souldiers ataMunda in Spaine vnderstanding, that if the Townesmen sallyed out vpō them, their prisoners would charge them vpon their backes, were forced to massacre them. likewise were the English forced to kill their prisoners after the bat∣tell of Poytiers, fearing least they should vse some trechecie, when the enemie made shewe to assayle them.bWomen, children, and old folkes, by the orders of warre obserued nowe in the Spanish campe are exempted from the souldiers furie, in the sacke of Townes. The present French king deserueth great prayse, for suffering the poore, and impotent people of Paris to passe through his armie, although it were much to his preiudice, practice of armes required percase other rigour, as appeareth by the crueltie executed by Caesars souldiers at Auaricum, and the Sea townes of France on such kind of people, thereby to make the besieged eyther sooner to yeelde, or to spend their victuals: but this best beseemed a Christian king. The Turkes saue such for slaues. Christians therefore ought to doe that for conscience, which Turkes doe for gaine.
Of this discourse, this is the summe, that thosecwarres are iust and lawfull, which are made by the soueraigne Magistrate, for law∣full and iust causes, being both orderly denounced in cas• requi∣site, & moderatly prosecuted, to the end that iustice may be done, and an assured peace obteined. In which case it is lawfull for any man with good conscience to serue in warres: but if the warres be notoriously vniust, let euery man take heede howe hee embrewe his handes in innocent blood. The Christian souldiers that serued Iulian the Apostat, would not drawe their swordes against Christians, al∣though they willingly serued him against all others. Yet doe I not make priuate men iudges of Princes factes. but what neede any iudgment where the facte is euident? and who shall answere for men that execute Princes wicked commaundements, before Christes tri∣bunall seate? if the iniustice of warres be not notorious, the subiect is bound to pay and serue, and the guilt shall be laide to his charge that commaundeth him to serue. A good man may serue (saythd Saint Augustine) vnder a sacrilegious Prince, where the iniustice of the commandement shall bind the Prince, as the duetie of obedience doth make the souldier innocent.Page 13
Iust warres hath these effectes. whatsoeuerawe take or winne from the enemie, that is iustly ours, and the same by the lawes of nations is accompted lawfull purchase.bnothing is proper by na∣ture, but either by ancient possession, and seisine, or victorie, sayth Tully. Whatsoeuer Citie therfore, or Territorie is by vs taken in iust warres, the same is ours: likewise whatsoeuer moueable goods commeth to our handes. Yet is there great difference in this case be∣twixt landes and goodes. the landes come to the Prince, or State that beareth the charge, to dispose at their pleasures, eyther amongcthose souldiers by whose blood they were wonne, or els after they be rewarded, among others for the benefite of the State. Alexan∣derdSeuerus the Emperour diuided the Countrey bordering on the enemie on the souldiers that best deserued, and their children also, so long as they should continue in seruice there. The spoiles of the enemie are sometime giuen to the souldiers, certeine things one∣ly excepted.eValerius Coruinus making a roade into Samnium, gaue all the praye to his souldiers; likewise did C. Iunius at the ta∣king of Bouian. The whole Senate of Rome gaue the sacke of Veij to the souldiers. The Spanish souldiers vse seldome to march to an assalt, but they will couenant to haue the spoyle. But if it might be obteined, the best course is, that all the spoyle brought to one place, the Generall should deuide it all, or most part among his souldiers, hauing regard to the most valiant, and hurt men which cannot be par∣takers of the spoyle, which they procured with their blood, and this was the most common practise of the Romanes. And if there should be any other course taken, these inconueniences would fall out: the Generall should haue no meanes to reward those that best deserue. for howe can he, the spoyle being not in his power to dispose: the hurt should be depriued of their part; for that they are not able to runne about to spoyle: nay the most valiant shoulde haue least part. for commonlyfthe most valiant souldier is the last that putteth vp his sword to goe to spoile. and contrariwise the most cowardly and disorderly companion, may percase light vpon the greatest and ri∣chest spoyles: for winning whereof he scarse drewe out his sworde. furthermore by greedinesse of spoyle, many braue occasions are let slippe out of our handes, and many disorders fall out. Alexamenes hauing slainegNabis, and being entred Sparta, while he minded nothing but spoyle, suffered the enemies to gather head, and waxe Page 14so strong, that they cut him and his companie in pieces. Last of all, diuers contentions and braules fall out about the diuision of spoiles, especially where there are diuers nations in one armie. All this cannot be remedied, vnlesse there be some better order then vsuall in preseruing the spoyle.
In time past the Romanes disposed of their prisoners, as of the rest of the spoile, and he that was taken in lawfull warres, was slaue to him that tooke him. But nowe that captiuitie is abolished among Christians, ransomes succeede in lieu of slaues, so that a prisoner taken in warres, is not made a slaue, but is ransommed according to that reasonable agreement which is made betwixt the prisoner, and his taker. The lawes of Spaine and France doe yet more particularly diuide the spoyle takē in wars. Not only the countrey, but also ships of warre taken from the enemie, belong to the Prince by theacu∣stomes of Spaine. By the samebcustomes the King hath the fifth, the captaine the seuenth part, the souldiers the rest. Sancho de Lond. compriseth their orders in certaine rimes:
The summe of his long rimes is this: that by the customes of France and Castile, the Prince ought to haue the Kingdome, Pro∣uince, Seignorie, or Citie, and the King likewise that is taken in warres. Other prisoners belong to them that take them, except the Generall, and men of marke and qualitie. which being taken by o∣thers, are notwithstanding to be vsed to the benefite of the Prince. prouided alwayes, that he that taketh them, be honourably rewar∣ded. All the ensignes, great artillerie, munitions of warre, and trea∣sure, are likewise the Generals due. small pieces without wheeles, and pieces of small bollet belong to the master of the Ordinance. all broken pieces fall to the Gunners share. the rest of the spoyle is giuen to euery one that taketh it. This is the vse when a battell is ioyned, or a Citie is wonne. but in a roade they that loose their hor∣ses in seruice, are first to be mounted eyther on horses taken, or on the common charge. the rest is to be diuided among the souldiers; yet so, that consideration be alwayes had of those that deserue best.
If our goods be taken away by the enemie, and presently reco∣uered Page 15againe, then they returne to the owners propertie. TheaVol∣scians being forced to yeeld, so soone as their campe was taken, so much of the spoyles as belonged to the Latines, or Hernicans, was restored to them againe by the Romanes.
bCamillus hauing recouered Sutrium out of the handes of the Hetruscians the same day that it was taken, restored the same a∣gaine to the Citizens. Thecgoods belonging to their confederats, the Romanes did commonly except out of the spoyle. The Ro∣manes after diuers yeres recouering the Territorie ofdSaguntum, restored the same to the ancient possessors thereof. AndeScipio re∣stored diuers things to the Sicilians, which he found in the sacke of Carthage, and had beene taken from them. This right by which things lost returne to their owners, the Romanes called ius postli∣minij. which belonged tofprisoners in warre, ships, mules, carriage horses, or mares. Slauesgreturning or recouered, are to be restored to their olde masters. Allhcaptiues returning from the enemie, re∣couer their auncient libertie and right.iPaulus the lawyer sayth, that when a Territory is recouered from the enemie, the landes re∣turne to their proper owners: and so the Romanes practised in the restoring of Verrugo, Sutrium, and diuers other Townes to the La∣tines, Sabines, Campanians and others, hauing recouered them out of the enemies hands. Yet lands lost by cowardise, or trecherie of the owners, and recouered againe without their helpe and charge, are without this case, vnlesse the Prince restore them of fauour. Those that runne to thek enemie, and traytors, were seldome receiued to mercie among the Romanes. Armes and horses of seruice lost in warres by cowardise, returne not to the owner.
These rules although by couenants and some circumstances they receiue alteration; yet for the most part they are obserued: which men of iudgement can easily discerne. And therefore leauing of further to discourse of the causes, let vs nowe discende to discourse what things are to be prouided, before warres be opened, that in our ne∣cessitie, we be not to seeke for things needefull.