IX. But not to dis∣pose of Men, Empires or Lands.
On the other side, to dispose of Men, Empires or Lands is not in the power of Gene∣rals; and therefore was Tigranes dispossest of Syria by the Senate, although it had been gi∣ven him by Lucullus* 1.1. Neither was it in the power of Massinissa to release Sophonisba, whom he had taken in War; because (as Scipio pleaded) She was under the power, and at the discretion of the people of Rome† 1.2. But over the rest of the spoil the General hath some kind of Right, yet not so much by virtue of his Authority as by the custom of Nati∣ons, whereof we have discoursed sufficiently before. But as to such things as are not actu∣ally possessed, they are wholly in the Generals power to forgive; because it is frequently seen, that both Men and Cities are willing to surrender themselves upon condition of their lives or their liberties, or sometimes that their Goods may be preserved; con∣cerning which, the present state of things will not permit so much delay, as to expect the Prince or the Peoples pleasure. And by a parity of reason, the same power may be grant∣ed to an inferiour Commander concerning such things as are particularly committed to his Conduct. There were some Roman Souldiers that had escaped out of the Battel at Thra∣symenes, to whom Maharbal in Hannibal's absence had granted leave to depart, not with life only, but, laying down their Armes, unstript; whom notwithstanding Hannibal de∣tained, pretending, That Maharbal had no power to grant such a Pass without his know∣ledge. Upon which fact of Hannibal Livy gives his censure thus, Punica Religione servata Fides, That he kept his Faith like a Carthaginian: Wherefore we must consider Cicero ra∣ther as an Orator than a Judge, who pleading before the Senate for Rabirius, endeavoured to perswade them, That Saturninus was lawfully killed by him, notwithstanding that Ma∣rius the then Consul had drawn him out of the Capitol with the promise of life. For, saith he, without a Decree of the Senate, who could give indemnity? as if the Faith gi∣ven by Marius did oblige himself only. Not considering that Marius by his Commission was empowred to use all lawful means, whereby as well the Majesty as the Empire of the Romans might be preserved. Neither can it reasonably be denyed, That the Right of par∣doning Offenders, if by that means the Commonwealth may be secured, must needs be comprehended under the Consular Power, which among the Romans was ever accounted the greatest; as Salust testifies in the Wars of Catiline.