The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

Hugo Grotius OF THE RIGHTS OF WAR and PEACE. BOOK III. (Book 3)

CHAP. I. Of certain General Rules, shewing what by the Law of Nature may be lawfull in War, wherein also he treats both of Fraud and Lies.

• I. The order and method of the Book following.
• II. The first Rule; whatsoever is necessary to the end is lawfull in War, explained.
• III. The second Rule; A Right in War may a∣rise as well from Causes subsequent, as from the beginning of the War.
• IV. The third Rule; that in War, some things may be done indirectly without injury, which if by themselves, and intentionally done, were unlawfull with a caution.
• V. What may lawfully be done to such as supply the enemy with things needful; this explained.
• VI. Whether in War Fraud be lawfull.
• VII. That Fraud in its negative act is not of it self unlawful.
• VIII. Fraud in its positive act is either by such outward acts, as admit of several constructi∣ons, or by such as signifie as it were by argu∣ments; fraud in the former sense lawfull.
• IX. Of that in the latter sense, the question is difficult.
• X. The use of words in another sense than that wherein we know they are understood, not al∣ways unlawfull.
• XI. The form of a Lye as it is unlawfull, con∣sists in the repugnancy it hath with anothers Right; this explained.
• XII. That it is lawfull to speak that which is false to Children and Madmen.
• XIII. So also when he is deceived to whom our speech is not directed, and whom without speech we may lawfully deceive.
• XIV. And when we are assured, that he to whom we speak is willing to be so deceived.
• XV. And when he that speaks exerciseth that Supereminent Power that he hath over his own Subjects:
• XVI. Or haply when the life of an innocent per∣son, or somewhat that is equal unto it, can∣not otherwise be preserved.
• XVII. That it is lawfull by false speaking to de∣ceive an enemy; by whom asserted.
• XVIII. This not to be extended to words, pro∣missory.
• XIX. Nor to that which we affirm upon Oath.
• XX. But it is more generous, and more agree∣able to our Christian simplicity to abstain from falsehood, even to our enemies.
• XXI. That it is not lawfull for us to compel an∣other to do that which is lawfull for us to do, but not for him.
• XXII. It may notwithstanding be lawfull for us to make use of his service, that freely offers it.

I. The order and method of this Book.

WHo may make War, and for what Causes, we have seen: It follows that we enquire what in War may be lawfull, how far forth, and by what means we may prosecute it: which we are to inspect either simply, or in reference to some antecedent promise or agreement. Simply in it self, and that first, according to what is justifiable by the Law of Nature, and then accord∣ing

to what is agreeable to the Law of Nations. And in the first place, let us see what is lawfull by the Law of Nature.

II. Things neces∣sary to the End, lawful in War.

First then, as we have often said before, in Morals, those things that conduce to the End, do receive their true intrinsick value from the End; wherefore whatsoever is neces∣sary to the End, that is to receive or recover his own Right, (taking the word Necessary not physically but morally,) that we are understood to have a Right unto. A Right, I say, strictly so called, as namely, it signifies a Power or Faculty of doing in the sole re∣spect of Society: wherefore if I cannot otherwise preserve my life, it is lawfull for me by what force soever to repell him that would take it away, though haply, he that at∣tempts it be without fault. Because this Right of defending mine own life doth not pro∣perly arise from another mans sin, but from the Right that Nature hath granted unto me to defend my self: whereby also I am empowered to take away from another that where∣by my life will otherwise be certainly endangered, without any respect at all had to his sin; and to possess my self of it, not as its right owner, for this is not indulged unto me for that end,* 1.1 but to keep it so long as is necessary for mine own security. So by the Law of Nature, I have a Right to take away from another that which he hath formerly taken from me; or if that cannot easily be done, yet to take that which is equivalent unto it; as also for the recovery of my just debt: and from hence will also ensue Propriety or Domi∣nion, because that breach that is made in Equality, cannot otherwise be repaired. So where a punishment is justly due, there all manner of Force and Violence is Lawful and Just, if that punishment cannot be had without it: And so whatsoever is a part of that punishment, as the destruction of Corn, Cattel, the firing of Houses, Towns, Cities, and the like, are also just, so long as they exceed not in measure, but keep proportion with the offence.

III. A Right in War may arise from some sub∣sequent Cause in its prosecu∣tion.

Secondly, we must know, that what is our Right is not to be adjudged by the first cause of the War only, but from other emergent causes which arise in the prosecution of it; so we have seen in our Courts of Justice, after a Cause hath been well argued, a new Right hath often arose to a Party which was not before thought on. Thus they that shall asso∣ciate with him that invades me, be they either Associates, or Subjects, do give me a Right to defend my self against them. So also they that shall joyn themselves with others in a War that is unjust, especially if they may or ought to know it to be so, do oblige them∣selves to repair the damage, and to pay the charges of the War, because they have cau∣sed it by their own default. So likewise they that rashly thrust themselves into a War undertaken without any probable Reason, deserve to be punished according to the inju∣stice of their actions: For so long doth Plato approve of the War, Donec hi qui sontes sunt cogantur insontibus male affectis, poenas dare; Ʋntil the guilty party be compelled to give satis∣faction to those who being innocent, have been injured by them.

IV. Some things may be gained without injury, indirectly, which pur∣posely was not lawfull.

We must observe also in the third place, that whilst we execute the Right that Nature give us, either to defend our selves, or to recover our own, many things do indirectly and beyond our purpose accrew unto us, whereunto we could otherwise have no Right at all. How this Rule holds in cases of our own necessary defence we have elsewhere shewn. So in the recovery of what is our own, if we cannot get just as much as was ours, we may take more, but on condition that we restore the surplusage to the Right Owner. So a Ship where∣in there are many Pyrats, or an House wherein are many Thieves, may be battered down or sunk, though it be to the endangering of many Infants, Women, and such like innocent persons that were accidentally mixt amongst them. But this must ever be observed, that Non semper omni ex parte licitum est, quod juri, strictè sumpto, congruit; We are not always to extend our Right to its extremity, for not every thing that is strictly due, is always and altoge∣ther lawfull. For sometimes our compassion towards the Innocent, and our Charity to∣wards our Neighbours, will not suffer us to exercise our full Right: wherefore in such cases we ought to be circumspect, and (as much as in us lies) to foresee, and to avoid all such contingencies, which may fall out beyond that, which we principally aim at, unless the Good that we aim at be far greater than the Evil that we fear; or unless where the Good and Evil being equal, our hopes of obtaining the Good be greater, than our fears of the Evil can be, whereof prudence is the best Judge; yet so, that whensoever the case shall happen to be doubtfull, we always incline to that part which provideth rather for ano∣thers safety than our own, as being much the safer, and if an errour, yet it falls on the right hand.* 1.2 Let the tares grow up with the wheat, (saith our best Master) lest while ye pluck up them, ye pull up the wheat also. Multos occidere & indiscretos incendii & ruinae poten∣tia est; To destroy whole multitudes, saith Seneca, without distinction, argues a power proper to the sudden irruption of fire, or the fall of some great building, rather than the rage of a man. And how much sorrow and penitence such a rash act cost the Emperour Theodosius, upon the admonition of S^t Ambrose, Histories will inform us. And although Almighty God doth so sometimes, yet ought that to be no example to us, because of that full and abso∣lute Right of Dominion that he hath over us, which he hath not granted unto us to have

one over another; and yet, even God himself, who is Lord Paramount over all Mankind, doth often spare a World of wicked and ungodly men for a very few that are good, there∣by manifesting his equity, as he is a Judge; as sufficiently appears by that sweet Colloquy between him and Abraham concerning Sodom: by which general rules, it is easily collected,* 1.3 how far our Right extends in War against our Enemies by the Law of Nature.

V. What we may do against them that supply our Enemies with what they want.

And here another Question is usually started, namely, what we may lawfully do to those who are not Enemies, or at least will not be so reputed, and yet do daily supply our Enemies with such things as they need: Great contests have antiently been, and now are about this matter; some stifly maintaining the rigour of the War, others as earnestly contending for the liberty of Trade and Traffick. But first we must distinguish of the things wherewith the Enemy is supplyed; for some things there are that are of no use but in War, as Arms and Ammunition; some things there are which are of no use at all in War,* 1.4 as things serving for pleasure only: And lastly, some things there are that are useful both in Peace and War; as money, Victuals, Apparel, Ships, and materials for Shipping. (At Athens it was prohibited to export Flax, Bottles, Timber, Wax, Pitch, and the like) Concerning things not useful but in War, it is true what Amalasuintha told the Emperour Justinian, He is to be esteemed as an Enemy, that supplies the Enemy with things necessary for War: as to the second sort of things there is no just cause of complaint. So Seneca thought, The favour of a Tyrant I may purchase, in case that which I give him, do neither increase his power to do mischief, nor confirm that which he already hath; for such things as these a man may give without encreasing the common cala∣mity. I will not, saith he, supply him with money whereby he may keep his Army in pay; but if he re∣quire Marble, Perfumes, or costly Apparel, these being but the fuel of his lust, can hurt no man but himself: Soldiers and Arms will I not furnish; but if he will accept of the best Artists I have, to make Scenes for Masks and Plays, I shall willingly part with them. (Thus did Hyram glad∣ly furnish King Solomon with Timber, and all kind of curious Artificers, that might en∣crease the delight he took in sumptuous buildings, thereby to divert him from pursuing with his vast Riches his Fathers conquests in Syria.) So also St. Ambrose,* 1.5 to contribute to him that conspires against his own Country, is no commendable liberality. As to the third sort of things which are of doubtful use, we must distinguish of the present state of the War. For if I cannot defend my self, unless I do intercept those things which are sent to mine Enemy, necessity will give me a good Right to them; yet upon this conditi∣on, that I make restitution, unless there be sufficient cause to the contrary. Again, if the supply that is sent in, do hinder the execution of my defence of the design, and he that sends it might have known that it would so do: As for example, If I have besieged a Town, and blocked up its Ports, so that I may justly expect the surrender of it, or a Peace; in this Case, he that shall knowingly send in relief, is bound to give me satisfaction for the loss I sustain thereby, no less than he that takes a Prisoner out of Custody that owes me a just Debt, or instructs him how to make his escape thereby to defraud me: and proportionably to that loss I sustain I may seize his goods, and posess them as mine own till I am satsfied; and if the damage be not already given, but intended only, then have I a Right by the detention of those supplies, to compel him that sent them to give security, either by pledg∣es, hostages, or the like, that he will not for the future send any more supplies to the be∣sieged. But in Case the wrongs done me by mine Enemy, be manifestly unjust, and that he by those supplies, do abet and encourage him in his unjust War; then he shall not only be bound to repair my loss civilly, but also criminally, as he that rescues a notorious ma∣lefactor, in the very presence of a Judge: and for this Cause it is lawful for me to do unto him agreeable to his offence, according to those rules which we have already set down for pu∣nishments. And so long as we contain our s••lves within these bounds, we may make War up∣on him; and for this Cause do they that make War usually, send out Declarations, and Re∣monstrances to other Nations, as well to insinuate unto them the equity of their Cause, as also what probable hopes they have to recover their Right. Now the reason why we refer this matter to the Law of Nature is, because we find nothing certainly determined in Hi∣stories by the voluntary Law of Nations, as to it. There is a Book written in Italian, In∣tituled, Liber consulatus Maris, concerning the Government of the Seas, wherein are re∣cited the Constitutions of the Emperours of Greece and Germany, the Kings of France, Spain, Syria, Cyprus, the Baleares, Venetians, and Genoese; wherein are handled two hundred seventy four Questions upon this Subject, where we shall find it adjudged, That if the Ship with its freight be both the Enemies, then there is no doubt but both are lawful prize: If the Ship belong to such as are at peace with us, and the goods to our Enemies, we may enforce them to put into any of our Allies or our Ports, there to unlade the goods; yet so, that we pay the Master of the Ship for the freight of them. But in Case the goods belong to our Friends, and the Ship to our Enemies, then is the Ship lawful prize, and to be agreed for; which if refused, they may be compelled into any Harbour of our Friends, and withal to pay us for the freight of those goods. In the Year 1438. There being War between the Hollanders and the City of Lubeck, with other Cities Confederate, situate

upon the Baltick Sea, and the River Albis, it was in Holland adjudged in full Senate, That the Goods found in an Enemies Ship, if it did appear that they belonged to others, were no lawfull prize, and this was there from thence established for a Law; and so pleaded by the Danish King in the year 1597. who thereupon sent his Embassadors into Holland to assert his Freedom to transport his Goods into Spain, notwithstanding the bloody War which the Hollanders then had with the Spaniards. The like hath always been permitted by the French to any Nation that were at Peace with them, and that so freely, that oftentimes the Enemies have in other mens names transported their Goods without damage; as appears by an Edict made 1543. Chapter the 42. and by another made 1584, wherein it is provided, that their Friends might freely traffick whither they plea∣sed, so as it were with their own Ships, Men and Goods, and that those Goods were not Belli Instrumenta, Arms, nor Ammunition for War, whereby their Enemies might be made stronger. But in case they did so, then it might be lawfull to seize them to their own use, paying a valuable price for them. Wherein two things are observable, first, That by these Laws, Ammunition for War was not held as lawfull prize, much less were other innocent Merchandizes obnoxious to this danger. I cannot deny but that these Northern Nations have sometimes usurped anothers Right, but not constantly, being urged there∣unto rather by present necessity, then by a perpetual equity. The English upon pretence of their War would not permit the Danes Freedom of Traffick, whence arose that War between those two Nations, whereby the English were compelled to pay a Tribute to the Danes, which was called the Dane penny, which though the Cause were changed, yet the name of it continued till the Reign of William the Conquerour, as Thuanus records it in the year 1589. Again, we find it recorded as well by Rh••danus in his History of Hol∣land in the year 1575, o•• by Master Cambden in his History of Queen Elizabeth in the year following, That that most Wise Queen sent her Embassadors, S^r William Winter and Se∣cretary Beale to Remonstrate, That the English could not endure that the Hollanders in the heat of their War then with Spain, should detain their Ships trading in the Spanish Ports. And when the English and the Hollanders being both at War with Spain, did di∣sturb the Cities of Germany in their traffick with the Spaniards, with what a disputable Right they did it, appears by the eager dissertations of both Nations, which are worthy our perusal for the deciding of this Controversie. And it is observable, that the English themselves do in their writings acknowledge no less, whereas they principally insist upon these two Arguments to defend their Cause; namely, That the Germans did furnish the Spaniards with Instruments of War: and secondly, that it had been mutually agreed in Ancient Treaties between both Nations, That it should not be lawfull for them so to do. The like agreement we find afterwards made between the Hollanders and their Associates, and the Lubeckers and theirs, in the year 1593. That neither the one nor the other should permit the Subjects of their Enemies to traffick within their Dominions, or should aid them with either Men, Money, Ships or Victuals. And afterwards, namely, in the year 1617. It was agreed between the Kings of Denmark and Sweden, That the Dane should obstruct all manner of Traffick with the City of Dantzick, being then at Enmity with the Swedes; and not only so, but that they should not suffer any Merchandizes to pass through the Sound, or the Baltick Sea to any of the Swedes Enemies; for which the King of Den∣mark was to receive other Priviledges and advantages from the King of Sweden. But these are particular Contracts, from whence no general Rule can be inferred. Neither did the Cities of Germany only blame the English for denying them freedom of Traffick with their Enemies: But the Polanders also complained against them in the year 1597, as Cambden relates, That the Law of Nations wa•• violated, because they were molested in their Commerce with Spain, because at that time the Spaniards had War with England: But the French having made Peace with Spain, being sollicited by Queen Elizabeth, (who was still at Enmity with the Spaniard) that it might be lawfull for the English to search their Ships for Arms and Ammunition, would not admit so much as this, alledging that it was but a pretence for rapine, and to disturb traffick. So in the League that the English made with the Hollanders and their Associates, it was agreed, That other Nations whom it concern'd to give check to the swelling Power of the Spanish Monarchy, should be sollici∣ted to forbi•• all Commerce with Spain, which if they did not voluntarily, then that they would permit their Ships to be searched, that no Arms or Instruments for War might be thither imported; but beyond this, neither were the Goods or Ships detained, nor any hurt done under that pretence to such as traffick'd peaceably. Nay, when in the same year several Hamburgers were taken laden mostly with Instruments of War, those only were challenged by the English as prize; but for the rest of the Commodities they paid the just value. But the French when their Ships were seized and confiscate by the English, because bound for Spain, did declare unto Queen Elizabeth that they would not suffer it. It is fit therefore, as I have said, That there should be Remonstrances and publick Declarations, forbidding Traffick with our Enemies, before we seize their Goods as Prize. So Queen

Elizabeth in favour to the King of France, against the Spaniard and those of the Holy League,* 1.6 sent out her Proclamation commanding that no man should carry Victuals or Provisions for War out of ••ngland, into any of the Ports of France possest by the Leaguers, or traffick with them u••on pain of High Treason. And afterwards the War waxing hot, it was pub∣lickly commanded upon the like pain, That no man should carry Corn, Munition, or Provi∣sion for Shipping into Spain, because he professed himself an Enemy to England, and refused to confirm the Ancient League betwixt their predecessors. Neither is it necessary, that any Na∣tion should be restrained from their freedom of Traffick by such Declarations; but it is left to every Nations choice to do as their own occasions and advantages shall prompt them to, there being nothing found in Histories,* 1.7 that may probably infer any certain determination of this controversie amongst Nations: wherefore such Declarations though published, have been sometimes observed, and sometimes not, accordingly as it stood with the respective advan∣tages of several Nations. And for this Cause we refer the decision of this Question to the Law of Nature. When the Hansetowns made sore complaints against Queen Elizabeth,* 1.8 upon Her taking of Sixty Hulks Trafficking to Spain, then in open War with England, as if their Ancient Priviledges had been broken: She answered, That she had forewarned them, that they should not carry any provision for War to the Enemies of the Realm of England; and that carrying them she had lawfully taken them, and could do no other unless she would wilfully draw destruction upon her self and People; That Priviledges were but Private Laws, which are not to be maintained against the Publick Safety, which is the highest Law: and this she asserts to be the Law of Nations.* 1.9 The Carthaginians we read some∣times took the Romans Prisoners, who had carried such Warlike Provisions to their Ene∣mies, but yet upon demand they set them at liberty. But Demetrius being possest of At∣tica, and having strictly begirt Athens both by Sea and Land, taking a Ship that was attem∣pting to relieve it (being now ready to yield) hanged the Master of the Ship together with the Pylot; whereby others being deterred from the like attempt, the City was yielded un∣to him, as Plutarch relates in the life of Demetrius. Not much unlike unto this, was that which the same Plutarch in his Mithridatick War testifies of Pompey, That he placed Guards upon the Bosphorus, so that if any Merchants sailed through it, they were if taken, put to death.

VI. Whether fraud in War be law∣ful.

As to the manner of prosecuting War, it is generally granted, That Force and Terrour are the most proper ways: The Question is, Whether deceit be lawful. Both Homer and Pin∣dar were of opinion, that an Enemy might be annoyed any way, by Fraud or Force, plainly or secretly, clamve, palamve: So Virgil,

Force or Deceit who in a Foe disputes.

No man was more famous for wisdom than Solon, yet he made use of both.* 1.10 So did Fabius Maximus, and is highly commended for it by Silius. For stratagems of War, none so ce∣lebrated as Ʋlysses amongst the Grecians; from whence Lucian makes this conclusion,* 1.11 that Deceit in War is praise-worthy. There is nothing so profitable in War as Fraud, saith Xe∣nophon. Bracidas in Thucydides gives the greatest Honour unto him that overcomes his Ene∣my by craft and subtilty. Hostes decipere & justum, & licitum; To over-reach an Enemy, saith Agesilaus in Plutarch, is both just and lawful. So Polybius, He that can circumvent his Enemy, by wiles and stratagems, deserves more Honour than he that overcomes him by plain force. And from him Silius brings in Corvinus speaking thus,

Bellandum est astu, levior laus in Duce dextra;

'Tis fraud, not force, commends a Captain most.

So also thought the severe Spartans, as Plutarch notes in the life of Marcellus; and there∣fore they offered more solemn Sacrifices to the Gods, for a Victory obtained by craft and po∣licy, than for that which was gained by mere force. And herein it was that the same Plu∣tarch commends Lysander, because he used more craft than courage in destroying his Enemies; with whom he compares Sylla, of whom this Character was given, That he pieced to the Lyons skin the Foxes tail. So likewise in that Encomium which he gives of Philopoemen, he inserts this, That being well instructed in the Cretensian Discipline, he did expedite that plain and generous way of fighting by wiles and stratagems. Thus Ammianus also, Nullo discri∣mine virtutis ac doli, prosperi omnes laudari debent bellorum eventus; Without any distinction at all between craft or courage, all prosperous successes in War deserve commendation. The Roman Lawyers accounted all fraud, whereby an Enemy was weakened, to be just and honest: And if a man could by any means delude the designs of his Enemy, whether it were by force or wit, he was to be encouraged. Neither amongst Divines doth S^t Augustine differ in opinion from these Historians, as appears by his tenth Question on Joshua,* 1.12 Cum justum bellum suscipi∣tur, vi aperta pugnet quis aut insidiis, nihil ad justitiam interest; In case the War be just, saith he, it matters not to the justice of its prosecution, whether it be by force or policy. Nay St. Chry∣sostome

seems to give greater honour to those Generals that overcame their Enemies by sub∣tilty, than to those who conquered them by pure valour. But there are opinions that seem to defend the contrary, some whereof we shall rehearse anon. The main hing•• whereupon the Controversie hangs, is this, Whether deceit be universally Evil, for the•• it will fol∣low, that we are not to do Evil that Good may come of it; or, Whether Deceit be to be ranked among such things as are not universally Evil in their own Nature, but that some∣times it may so happen that it may be Good.

VII. Fraud in its negative act not unlawfull.

Here therefore we are to observe, That some fraud consists in a negative act, and some in a positive. But in this question, I extend the word Fraud even unto those things which consist in the negative act, as Labeo did, who referr'd it unto that fraud which is not Evil, when a man by dissimulation preserves that which is either his own, or ano∣ther mans.* 1.13 Cicero doubtless was very short in his expression, when he laboured to explode simulation and dissimulation out of the world: For seeing that we are not bound to reveal unto others, all that we either know, or would have; it will follow, That it is lawfull for us to dissemble some things before some men, that is, to hide from them somewhat of what we know,* 1.14 or of what we desire. Licet occultare veritatem prudenter sub aliqua dis∣simulatione; The truth we may sometimes prudently conceal under some disguise, saith S^t Au∣gustine; which we may do without being justly charged with lying: For as the same Au∣thor elsewhere speaks, Aliud est mentiri, aliud verum occultare; It is one thing to lye, and another to conceal the truth. As Abraham when he affirmed Sarah to be his Sister, did not therein deny that she was his Wife, but only concealed it. So S^t Augustine, Veritatem vo∣luit celari,* 1.15 non mendacium dici; He was indeed willing that the truth should lie undiscovered, without telling a lye. Now if this be lawfull in others, surely it is necessary and unavoid∣able in Princes, as Cicero testifies in many places. A notable example whereof we have in the Prophet Jeremiah,* 1.16 where the Prophet being enquired of concerning the event of the siege, did at the Kings request prudently conceal it from the Nobles, alledging some other cause of their Conference, which notwithstanding was really true also. So Abra∣ham told Abimelech true, when he said of Sarah that she was his Sister, that is, according to the custom of that speech among the Hebrews, his near Kinswoman; dissembling for that time, that she was his Wife.

VIII. Fraud in its positive acts distinguished.

But fraud which consists in a positive act, if in things, is called simulation; if in words, a lye. Some place the difference between these two in this, That words do naturally sig∣nifie the conceptions of our minds, but things not so: But on the contrary, words, of their own nature, and set aside from that sense which men have agreed to give them, sig∣nifie nothing, unless it be such an inarticulate and confused noise as pain and grief cau∣seth us to make, which is more understood by the thing we suffer, than by the noise we utter. And if it be objected, that it is peculiar to the Nature of Man, above all other Creatures, That he is able to express the manifold conceptions of his mind unto others, to which end words and voices were invented, we do not deny it: Yet this also may be ad∣ded, That such indications are not made by words only, but by becks, nods, and other signs made by the eyes, head or hand, as among such as are born dumb. (Thus Pliny te∣stifies of the Aethiopians,* 1.17 Quibusdam pro sermone, nutus, motusque membrorum est; That some of them instead of words, express their minds by various motions of their other members.) Whe∣ther those becks, or other motions have naturally something common with the things sig∣nified, or whether they have a certain signification by agreement only. Consonant where∣unto are those Aegyptian Hieroglyphicks, which as Paulus the Lawyer saith, signifie not words but things: for saith he, It is not the figures of the letters, but the speech exprest by those letters that do oblige us so far forth as it is agreed on, That what is by any writing declared, shall be as binding, as what is exprest by word of mouth. Where you must note, that the word Placuit is very emphatical, as shewing that that which gives such force and vali∣dity to words is consent and agreement. And here again we must have recourse unto that distinction, which we made use of to take away all ambiguity concerning this word, the Law of Nations. For we then said, that the Law of Nations signified, either that which was admitted of by every Nation without mutual obligation, or that which all Na∣tions did mutually oblige themselves to observe. Now voices, nods, and such like indi∣cations of the mind, are admitted to signifie things by mutual obligation, which Ari∣stotle calls 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, according to agreement; whereof some are so universally a∣greed on to signifie such and such things, that all Nations are obliged so to understand them; which cannot be so generally understood of things. Whence it follows, that it is lawfull for me to do or use other acts, or things, though I do foresee that another man will conceive a false opinion of them: I speak of that which is intrinsick, and not of that which is accidental. And therefore we must give an instance, first of such a case where∣in no detriment at all ensues; such was that of Michal when she deceived her Father, with an Image laid in stead of David.* 1.18 Thus our blessed Saviour seemed to his two Disciples, as if he would have travelled beyond Emaus; and perhaps he intended so to do, unless they

did importune him to abide with them, as God himself is said to will many things supposi∣tively, which notwithstanding come not to pass, the condition being not fulfilled.* 1.19 And Christ himself made as though he would have passed by his Apostles as they were sailing on the Sea, that is, unless they should earnestly desire him to come up into their Ship. Another example may be given in S^t Paul, who doubtless when he circumcised Timothy,* 1.20 knew very well what construction the Jews would make of it, namely, That the Law of the Circumcision, though abolished by Christ, did still, even in the judgment of the Apostles, o∣blige the Children of Israel; whereas S^t Paul, dispensing with this errour, proposeth to himself another end, namely, That through that mistake he and Timothy might gain the advantage of a more free and friendly conversation with them. For the Ceremonial Law being abolished, neither did circumcision, by its first institution, any longer signifie a ne∣cessity of keeping that Law; neither was the evil of that errour, which from thence arose, and for a while continued, (though afterwards to be exploded) so great as was that good which Paul and Timothy then aimed at, which was a more facile insinuation of the Do∣ctrine of the Gospel. The Greek Fathers do usually express this kind of simulation by the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, signifying a dispensation. So Chrysostome,* 1.21 This was no deceit nor hypo∣crisie, but a compliance or dispensation. And again, upon that of S^t Paul, To the Jews I became a Jew, &c. he saith, That St. Paul, to the end he might convert those that were really superstitious, at first appeared unto them to be so too, making an outward shew, as though he had been otherwise than what he was; he did such things as they did, but not with the same purpose and intention as they did. And this is his meaning when he saith, I became all things to all men, that I might save some.* 1.22 Hither also we may refer that personated madness of King Da∣vid in the Court of Achish. There is is a notable Saying extant of Clemens Alexandrinus, who, describing the qualities of a good man, saith, That some things he will do for his Neigh∣bours sake, which otherwise he would not do. Such was that act of the Romans, who when their City was besieged, threw great quantities of Bread from the Capitol into their Enemies Camp, (when in truth they had but little to spare) to the end that their enemies, de∣spairing to take the City by Famine, might give over the Siege. Another example of such a simulation wherein the hurt or detriment that follows (setting aside the fraud) is lawful, we have in that feigned flight of Joshua before the Inhabitants of Aye, Josh. 8.* 1.23 which is very frequently practised by other Generals. For such a seeming flight is, questi∣onless, lawful, as signifying nothing by consent or agreement, but according to the con∣struction that the enemy will make of it, wherein, if they are deceived, they deceive themselves. And to this end also it is lawful for us to make use of our Enemies Armes, Colours, Garments, Sails, and the like, whereof we shall read in all Histories. For all these things every man hath liberty to make use of, though contrary to usual custom, at his own pleasure; because that very custome of using or wearing such or such a colour or fashi∣on is in every mans particular choice, and is not appropriated to this or that Nation by common consent, and therefore obligeth none.

IX. Whether to ly be lawful to an Enemy.

There is yet a more arduous Controversie concerning those notes or signs which men frequently use in their commerce one with another, of which sort the most proper and usual fraud is lying. Much may be found in Holy Writ against it, as Prov. 13.5. A good man hateth lying. So Prov. 30.8. Remove from me all falshood and lies. So the Psalmist, Thou shalt destroy all those that speak lies, Psal. 5.7. And it was the charge of the Apostle to the Colossians, Do not lye one to another, Col. 3.9. This opinion is very strenuously defend∣ed by S^t Augustine, and with him agree many, both Poets and Philosophers. Very well known is that of Homer,

Ille mihi invisus pariter cum faucibus Orci, Cujus mens aliud condit quam lingua profatur.

Equal to Hell it self hateful be he, Whose heart and tongue do always disagree.

And that of Sophocles,

Aliena vero proloqui nunquam decet: At vera certam si cui pestem ferant, Huic danda venia est, si facit quod non decet.

Untruth to speak is an indecent thing; Yet if to any, truth swift ruine bring, A lye to him is not imputed sin.

And that of Cleobulus,

Mendacium odit quisquis animitus sapit.

He that sincerely wise doth lies detest.

Aristotle is on this point somewhat modest, Simply, saith he, and in it self, lying is vile and reproachful, but truth fair and commendable. But this, he saith, by it self considered, with∣out any regard to circumstances. Yet doth not the contrary opinion want Advocates, and those of great authority. As first, In the Holy Scriptures, the examples of many good men, who though they did it upon very weighty occasions, yet are they not repro∣ved upon record for it. Concerning which Irenaeus, being so instructed by a certain Old Priest, gives us this Caution, De quibus Scripturae non increpant, sed simpliciter sunt positae, nos non debemus fieri Accusatores; We ought not to be their Accusers, whose words or deeds the Scri∣ptures do simply recite, but not blame. Secondly, The declared opinions of many ancient Christians, as Origen, Clemens, Tertullian, Lactantius, Chrysostome, Hierome, Cassianus; yea, and of almost all Christian Writers, as S^t Augustine himself confesseth, herein only dissenting from them, That he acknowledgeth it to be a very knotty question, full of intricacy, and by the learned variously disputed;* 1.24 all which are his own words. Among Philosophers, the plain Assertors of this opinion are Socrates, and his two Disciples Plato and Xenophon; as also Cicero; and if we give credit to Plutarch and Quintilian, the Stoicks, who reckon this among the qualifications of a wise man, To know where and when it is lawful to lye. Nei∣ther doth Aristotle himself seem to dissent from them in some places, witness that Clause of his beforementioned [〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉] of it self, that is, commonly the thing considered in it self, without respect to other circumstances. For as Andronicus Rhodius, giving an instance in a Physician lying unto his Patient, saith, He deceives indeed, but yet is no Deceiver; and gives this reason for it, Because his purpose and intention is not to deceive his Patient, but to preserve him. And Quintilian before-mentioned, defending this opinion, saith, That there are many things which are said to be either honest or dishonest, not simply from the fact, but from the Causes moving to that fact. So Diphilus,

If by a lye mans life preserv'd may be, What harm may thence ensue I cannot see.

When Neoptolemus in Sophocles asked Ʋlysses, Whether he were not ashamed to lye: Ʋlysses readily answered,

No, if our safety do thereon depend.

The like testimonies may be produced out of Lisander and Euripides. So in Quintilian also I read, Nam & mendacium dicere, etiam sapienti aliquando concessum est; For it is no disparage∣ment to a wise man sometimes to tell a lye. A wise man, saith Eustathius upon Homer, may upon a great occasion tell a lye. And for confirmation of what he there saith, he produceth te∣stimonies both out of Herodotus and Isocrates. There are some (saith Donatus upon Te∣rence) that writing concerning the Duties of a good man, & ipsum fallere in tempore, rectum putant, do esteem it a point of honesty sometimes to deceive. And indeed he that would do some men good, cannot do it, unless he circumvent them; wherefore Cicero in his Oration for Ligarius, approves of such a lye as honest and charitable.

X. To use such words as may be taken in a∣nother sense, not always un∣lawful.

These so different opinions may haply be in part reconciled by that common distincti∣on of lyes, taken in a stricter and in a larger sense. For we do not here take the word so largely as to comprehend all that falshood which sometimes is spoken through imprudence, as Gellius rightly distinguished between mentiri, & mendacium dicere; To lye, and to speak that which is not truth. But we take it here as it signifies an untruth, spoken knowingly, whereby we contradict the conceptions of our own minds, either in our understanding or our will. For whatsoever is first and immediately signified by either words or other notes, are the conceptions of our minds; wherefore he doth not lye, who though he do speak that which is false, yet conceives it (when he speaks it) to be true. But he that saith a thing is true, yet thinks it to be false, doth undoubtedly lye. For ream linguam non facit nisi rea mens;* 1.25 The tongue is not made guilty, but by a guilty mind. And as S^t Augustine speaks, Quantum in ipso est, non fallit, sed fallitur; He that speaks an untruth, but thinks it to be true, doth not deceive, but is deceived. And if so, then it will follow, That when any word or sentence will admit of divers significations, either by familiar use, or by the cu∣stome of art, or by any figurative expression that is intelligible; then if our inward mean∣ing agree with any of these significations, it is not to be esteemed as a lye, though he to whom we speak is believed to understand it in a different sense.* 1.26 Thus did Abraham com∣mune with his Servants subtilly, when he bad them to tarry there whilst he and his Son Isaac went a little further to sacrifice, promising that they would both return; which as then he in∣tended not. But these captious and equivocal expressions are not rashly to be allowed; yet may they upon some occasions be justified: as in case we are thereby to instruct such as are committed to our charge, or to decline some pernicious questions whereby we may be insnared.* 1.27 Of the former Christ gives us an example in himself, when he said, Our friend Lazarus sleepeth; which the Apostles understood of his taking rest in sleep. So when

he told the Jews, That they would destroy the Temple, and in three days he would raise it up;* 1.28 which he meant of his Body, but they of the material Temple. So again, when he pro∣mised his Apostles, That they should sit on twelve Thrones, judging the twelve Tribes of Israel;* 1.29 and that they should drink new wine with him in his Fathers Kingdom: He knew very well that they understood him as of a temporal Kingdom, whereof they were full of hopes, even unto the very Day of his ascension. And thus in another place he speaks to the people in Pa∣rables, lest hearing they should understand; that is, unless they should bring with them such reverence and attention as was requisite, in order to the right receiving of his pure Do∣ctrine. As to the latter use of these Amphibologies,* 1.30 amongst prophane Authours Tacitus will furnish us with the example of one Lucius Vitellius, who being urged by Narcissus to unriddle himself, and to speak the truth plainly, could never prevail; but still he gave ambiguous and doubtful Answers, such as might incline them to that whereunto he would have them led. So the same Tacitus in another place, speaking of Tiberius, saith,* 1.31 Ita com∣positus, ut ex eventu rerum adversa abnueret, vel prospera agnosceret; He did so artificially com∣pose his Answers, that expecting the event, he might either renounce the Plot if it succeeded not, or owne it if it prospered.* 1.32 There is a very no∣table Saying among the Hebrew Doctors, Si quis norit uti perplexilo∣quio, recte; sin minus, taceat: If a man being put to answer insidious questions, can either prevent or avoid them by Amphibologies, let him; if not, let him not answer at all. For as S^t Chrysostome observes, He is not to be reckoned as a Deceiver that useth Amphibologies to a good end, but he that useth them to a bad. But yet, in some Cases, to use them is not allowable, as namely, when either the honour of God, or our charity to our Neighbour, when our reverence to our Superi∣ours, or the nature of the thing it self whereof we treat, requires that we should clearly unmask our selves, and declare the truth; then to use these Amphibologies is not only indecent, but impious. So in Contracts, we have already said, Whatsoever the nature of the Contract requires to be understood, should be declared. So of Laws which should be the Guides of mens manners, it is required that they should be exprest in the plainest and most significant words that may be found. Now in the Case of Contracts may that of Cicero be fitly un∣derstood, That lies ought to be excluded out of all humane commerce; which he seems to have borrowed out of that old Attick Law, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; In a Market nothing ought to be spoken but truth. In which Cases the word mendacium is to be taken so largely as to comprehend all doubtful and ambiguous Phrases, which we speaking properly have hither∣to excluded from this Notion of lying.

XI. The form of a lye as it is unlawful, wherein it consists.

It is required therefore to the nature of a lye, commonly so taken, that what is either spoken or written, or by any other signs exprest, cannot otherwise be understood than in such a sense as is different from his mind that so declares it. But to a lye strictly taken, as it is naturally unlawful, there is necessarily required some peculiar difference, which if rightly understood, at least according to the common acception of Nations, can be no∣thing more than the violation of his existing and remaining right with whom we con∣verse. For certain it is that in respect of himself no man can lye, let him speak never so much falshood. Where by Right, I understand not every Right, and what is extrinsick to the thing; but that which merely relates unto the matter in hand, which is nothing else but his freedom with whom we discourse, to judge at the conceptions of our minds, which as by a silent Contract, we are presumed to owe unto him. For this, and no o∣ther, is that mutual obligation which men were willing to introduce so soon as language was invented, or those other notes or signs generally received as significant of our in∣ward thoughts; without which obligation that invention had been altogether fruitless. (And therefore amongst the Hebrews, he that deprived a man of the means of knowledg, was said cor furari,* 1.33 to steal away his heart, as Jacob is said to steal away the heart of Laban, in that he did not acquaint him with his purpose to depart from him, Gen. 31.20, 26, 27.* 1.34 Now it is also requisite that this right or liberty to judge by such words or signs at their inward conceptions, should remain intire at that time when we discourse. For possible it is that though there was such a freedome, yet it is then taken away, or may be by some other right that is supervenient. As a Debt that was, may cease to be so, by reason either of an Acquittance given, or a failing of the performance of some Condition. Again, it is re∣quired, That the right that is violated be his with whom we discourse, and not a By-standers, or any other mans. As in a Contract there ariseth no injustice, but by the violation of the right of one of the Contractors. Hence haply it is that after Simonides, Plato refers the speaking of truth to justice. And that S^t Augustin himself inserts into the definition of a lye, That it be spoken animo fallendi, with a purpose to deceive. And Cicero, Plato, and o∣others would have the speaking of truth to be referred to the fundamentals of Justice. And that that lying that is forbidden, the Scriptures do often describe by bearing false

witness against our Neighbour;* 1.35 whereunto Lactantius hath respect where he saith, That no untruth ought to be spoken at any time with an intent either to hurt or deceive our Neigh∣bour. But this right may be taken away (as I have said) as by express consent of him with whom we converse, when he declares before he speaks that he will speak false; and he to whom he declares it, doth permit it: So by a tacite consent, or on a presumption grounded upon just reason, or by the opposition of anothers right, which by the common judgment of all is most prevalent. From these premises rightly understood, many inferen∣ces may be drawn, in order to the reconciling of those different opinions formerly men∣tioned.

XII. It is lawful to speak untruth to Infants and Mad-men.

As first, In case we converse with either a Child or a Mad man, if what we say be false, it cannot be imputed as a lye; because (as Quintilian saith) it is universally permitted, as profitable, to instruct Infants by Tales and Fables. But the immediate reason is, Be∣cause not having a freedom of judgment, they cannot be injured about that liberty which they have not.

XIII. When he to whom we di∣rect our speech is not decei∣ved, but a By-stander.

Secondly, Whilst we discourse with one man who is not deceived, if another to whom we direct not our discourse be thereby deceived, we cannot be justly charged with a lye. For first, It is not a lye, in respect of him to whom it was spoken; because his judgment remains sound and uncorrupted, as his doth who hearing a Romance, under∣stands it to be so: So likewise doth his, who hearing a Parable or figurative speech, whe∣ther it be by way of Irony or Hyperbole, whereby we arrive, as Seneca speaks, at the knowledge of what is true by something that is not true,* 1.36 asserting things incredible to gain belief to things credible. Neither is it a lye in respect of him that overhears it; because he being not concerned in our discourse, we stand no ways obliged unto him: but if that man do conceive an erroneous opinion by reason of a discourse between others, he may justly blame himself if he be deceived,* 1.37 and not others. For to speak properly, Our speech one with another is no speech at all in respect of a By-stander, neither doth it signifie to him any thing.* 1.38 And therefore neither was Cato the Censor to be blamed for pro∣mising aids to his Confederates, though falsly; nor Flaccus in divulging unto others, That Emilius had taken his Enemies City by assault, though it were untrue, and his enemies thereby deceived. The like Plutarch records of Agesilaus. For nothing was therein said to the Enemy; and therefore the damage that was consequent thereunto was but extrin∣sick and adventitious, which to an enemy either to wish or procure was not unlawful. Unto this kind of false speaking S^t Chrysostome, Hierome, Cyril, and others, refer that speech of S^t Paul, reproving S^t Peter at Antioch for too much Judaizing, as believing that S^t Peter very well understood S^t Paul, namely, That he did it not seriously, and in good ear∣nest; but only to prevent a scandal that might thence arise to such as were weak amongst them.

XIV. When our speech is dire∣cted to him that is willing to be deceived.

The third Inference is this, When we are sure that he with whom we converse will not only not be offended, though his judgment be for the present deluded, but that he will also be thankful in regard of the profit that will thence arise to him. In this case a lye strict∣ly taken, that is, an injurious lye, cannot be imputed unto us, no more than that can be impu∣ted unto us as theft, when upon presumption that the Owner will not be offended, we spend somewhat that is his, thereby to procure him a much greater profit. For in cases of such certain profit, our presumptions are as authoritative as his express consent. And to him that is willing, is no injury done. Wherefore a Physician is not presumed to lye, when he cheers up his desponding Patient with the feigned hopes of recovery. Or when a General in a dangerous Battel cheers up the Spirits of his fainting Souldiers, with some comforta∣ble news, though false, whereby he procures both their safety and victory. We are alto∣gether to speak truth (saith Democritus) where it is advantageous: yet, as Xenophon observes, Deceive we may even our very friends, when it redounds to their good. The Physician (saith Maximus Tyrius) deceives his Patient, the General his Souldiers, and the Pilot his Mariners; yet neither of these can be said to injure them: whereof Proclus in Plato gives this reason, Because that which is good is to be preferred before that which is true.* 1.39 Histories are full of examples of this nature; as that in Xenophon, when to encourage his Souldiers, he caused it to be given out, That an Army of their Confederates were coming to assist them. And that of Agesilaus in Plutarch, who when he came into Boeotia, and there understood that Pysander, was there overthrown in a Naval Battel by Pharnabazus and Conon, caused the quite contrary to be published to the Army, which to confirm he came crowned into the Temple, causing solemn Sacrifices to be offered to the Gods for the Victory. And (that salubre mendaci∣um, as Historians call it) that wholesome lye of the Consul Quinctius, who to encourage the Right Wing, gave it out, That the Left Wing had routed their Enemies. Thus is that of Clemens Alexandrinus to be understood, who allows of a lye as the utmost refuge in the time of danger. Where we must observe, That the injury that is done unto the judgment in this kind, is so much the less as it is momentany; whereas the good that may ensue is great, general and lasting: for the victory being gained, the truth immediately appears.

XV. When he that speaketh, useth that soveraign power he hath over his Sub∣jects.

The Fourth, and that which comes nearest unto the former is this; so often as he, who hath a supereminent Right over all the Rights of another, makes use of that Right, ei∣ther for his own particular interest, or the publick good. And hereunto had Plato* 1.40 respect, when he indulged unto Princes that liberty to speak untruths. And yet the same Plato when he seems sometimes to grant, and sometimes to take away this licence to, or from Physicians, seems to put this only difference that in giving it, he intends it to such as are publickly Authorized unto that calling; and in taking it away, he intended it from such as over arrogantly assumed it unto thems••lves. And yet neither did Plato himself think it fit to admit of lying in God, notwithstanding that Soveraign Power that he hath over men; be∣cause it is an argument of much weakness and insufficiency, to have recourse to such shifts (which to attribute to God were Blasphemy.) An example of this innocent and unblamable falshood we have in Joseph to his Brethren, for which ••hilo so highly commends him, who as the Kings Vicegerent, doth with a becoming seve••ity charge his Brethren contrary to his knowledge; first, for being Spies, and afterwards, for being Thieves. Another we have in Solomon, who to discover the true Mother, commanded the Child to be divided, when he intended nothing less. So true is that of Quintilian, Aliquando exigit communis ••tilitas, ut etiam falsa defendantur; It is sometimes expedient for the common good, that some falshoods should be maintained.

XVI To preserve the life of an innocent per∣son.

We may add a fifth, namely, when the life of an innocent person, or some such like, cannot otherwise be preserved; or when the execution of some dishonest act cannot o∣therwise be prevented; such was the fact of Hypermnestra so much celebrated by Horace, As,

Splendide mendax,* 1.41 & in omne virgo Nobilis aev••m.

Deserving for her pious fraud Immortal praise.

Whereupon the Scholiast hath this note, Decenter: Pulchrum est enim pro justitia mentiri; Very decently: for to lye sometimes for justice and innocency is a lovely thing. There are saith S^t Aug.) two sorts of lyes not much to be blamed, though they are not altogether without blame; and these are either the ••ocul••r, or the charitabl•• ly: The jocular is not pernicious, because it de∣ceives no man; for he to whom it is spoken, knows, that what is so spoken is but in sport. The of∣ficio••s lye is so much the less dangerous, because i•• proceeds from charity. And therefore Tertul∣lian amongst those 〈◊〉〈◊〉 sins of infi••mity, whereunto we are subject, deprecates this, When in cases of 〈◊〉〈◊〉 we make ••yes our sa•••••••• 〈◊〉〈◊〉. St. Chrysostome, doth not only excuse Rahabs lye, but co••••••••••s it, O p••lci••••m m••n••••••i m! O laudabilem dolum, &c. O lovely lye! O com∣mendable fr••••••d, saith he, of one that betrayed not things Devine, but to preserve true Piety. So likewise doth St. Augustine of the Aegyp ian M••dwives, O magnum humanitati•• ingeni∣um! O pium pro salute mendacium! O rare device of humanity,* 1.42 O p ous lye framed only to pre∣serve life! For which St. Hierome doth not only comm••nd them, but believes that God also did reward them, even with eternal blessedness, as will appear to any that reads his exposition on the 17. of Ezech. and on the 56. of Esay.

XVII. Lawful to Ene∣mies.

Some wise men are of opinion, that to an Enemy we may use falshood in a larger sense. As* 1.43 Plato and† 1.44 Xenophon among the Grecians, Philo among the Hebrews, and amongst Christians St. Chrysostome; who to the rules they give for not lying, add thi•• exception, Unless it be to our Enemies. If we call to the test the brave exploits of our noblest Captain, saith St. Chrysostome, we shall find that they owe most of their triumphs to fraud, and that those Victories so gained, were always more renowned, than those gained by plain force* 1.45. And hither∣to haply we may refer that Message that the men of Jabesh Gilead, sent unto the Ammo¦nites, by whom they were besieged, 1 Sam. 11.10. And that of Elisha the Prophet, when he told those that were sent to apprehend him, from the King of Syria, That that was not the way, nor the City where Elisha was, 2 Kings 6.19.* 1.46 As also that of the same Elisha to Ha∣zael concerning Benhadad, Go and say to him, Thou mayest certainly recover, howbeit the Lord hath shewed me that he shall surely dye, 2 Kings 8.10.* 1.47 As that also of Valerius Levinus, when he boasted that he had slain Pyrrhus. To the third, fourth, and fifth of these infe∣rences above mentioned, we may refer that of Eustratius,* 1.48 It is not always necessary that he that gives good advice should speak true; for, haply he that rightly adviseth, may advise purposely how he may frame a lye, so that thereby, either his Enemy may be deluded, or his friends pre∣served. Examples of these kinds are very frequent in all Histories: To the same purpose is that of Quintilian, If a Thief enquiring after a Traveller, with an intent to kill him, may be misguided; or if an Enemy for the preservation of our Country, may lawfully be deluded: then that which in a servant is reproveable, is in a wise man commendable.* 1.49 The Schoolmen of this latter age will not I know admit of this, who out of all the Ancient Fathers, have cho∣sen

St. Augustine only as their guide in almost all things.* 1.50 But yet as scrupulous as they are and nice, in admitting of false speaking in any Case, they notwithstanding, make no scruple of admitting tacite interpretations, and mental reservations, which are whol∣ly to be rejected; insomuch, that it is hard to determine, whether it be not better to ad∣mit of speaking falsly to some persons, and in some cases (as those before-mentioned) than so indifferently to distinguish between falshood, and those secret interpretations, and si∣lent reservations, whereof they approve; which being admitted, no man can possibly know, when his Neighbour speaks truth, and when not: As when to a Question that is asked me, I answer, I know not, I mean, I know not so as to tell you that I know it; or when I say to a poor man, I have nothing, I mean, I have nothing to give you, &c. which in∣terpretations, even common sense is ashamed to own; and which being admitted, will ea∣sily introduce plain contrarieties: so that he that affirms any thing, may be understood to deny it; and he that denies any thing may be said to affirm it. For it is most true what Chrysippus in Gellius maintains, That there is scarce any voice that admits not of some ambi∣guity, because every word besides the signification, which is of its prime institution, hath also a∣nother of the second, and that divers according to the diversity of arts, yea, and others also, which it borrows from translations and from semblable figures. Besides as Seneca observes, There are infinite things without names; which we are forced to describe, by such names as we borrow from other things. Neither do I better approve of those, who as if they quarrelled more with the word, than the thing, call that jest or sport, which they utter, with a coun∣tenance and pronunciation very serious.

XVIII. This not to be extended to words promis∣sory.

We are likewise to observe, that what we have here set down concerning false speaking, is to be referred to that kind of speech which is assertory, and that also so far forth only as it damnifies none, unless it be a publick Enemy, but not at all to that which is promissory; for every promise confers a new and special Right to him, to whom that promise is made: And this is in force, even amongst Enemies, notwithstanding the greatest and most open hostility, and that, not only where the promise is express; but where it is presumed, as in the sounding of a party, whereof more anon, when we come to treat of publick Faith, which is to be preserved even amongst Enemies, between these two kind of speeches, I mean assertory, and promissory. Agesilaus in Plutarch clearly distinguisheth, where he saith, Foedera violare, Deos est contemnere; extra ea verbis hostem decipere, non justum modo est, sed & gloriam habet & cum lucro voluptatem; To violate Leagues, is to despise the Gods: But otherwise to deceive an Enemy, which words are not only just, but glorious, and with delight profitable.

XIX. Not to Oaths.

Neither is it to be extended to oaths, either assertory or promissory; for oaths have a power to exclude all exceptions, because therein we have to do not with men only, but with God, to whom by our oaths we stand obliged, although there arise no Right at all to men: for (as I have already said) it is not so in those speeches which are confirmed by oath, as it is in others; for in others it is sufficient to justifie us from lying, if the words spoken be true in any sense, not altogether unusual; but in that which is sworn, it is necessa∣ry that our words be plain and significant, and fitted to that sense, wherein he to whom we swear, is thought most probably to understand them, when we may discover the detesta∣ble impiety of those, who affirm that it is as lawful to deceive men with oaths, as Chil∣dren with dice and other toys.

XX. It is more ge∣nerous and Christian like to abstain from falshood and lies.

We know, that there are some kinds of fraud, which though naturally permitted, yet are by some people and some persons decryed; not so much for any thing in them that is unjust, as out of either magnanimity of spirit, or sometimes out of a presumption on our own strength. There is in Aelian an excellent saying recorded of Pythagoras, namely, That there are two things wherein men draw near unto God, in speaking truth always, and in doing good unto all men. For truth (as Jamblicus speaks) is the Captain or Guide to all vertues whether Moral or Divine. And Aristotle gives it as the truest Character of a magnanimous person,* 1.51 that he loves truth, and to speak his mind freely. Whereas on the contrary, It is, as Plutarch notes,* 1.52 the badge of a vile and servile spirit to lye. And therefore (as Arrianus speaks of King Ptolemy) It is worse in a King to lie than in any other. So the same Author speaks of Alexander,* 1.53 Nothing so well becomes a Prince, speaking to his Subjects, as truth. And Mamer∣time speaking of the Emperour Julian, saith, Admirable is the concord that there is between our Princes tongue and his heart, as knowing, that lying argues a base and abject spirit; and whereas it is fear and poverty only, that makes men lyars, he is ignorant of his own Majesty, who being a Prince disdains not to lye. It was Plutarchs observation of Aristides, That he was so great an admirer of truth, that he hated lying though but in jest. The like did Probus com∣mend in Epaminondas, Adeo veritatis diligens, ut ne joco quidem mentiretur; That he was so great a lover of truth, that he would not tell a lye, though but for sport. And as for such as are fallacious and deceitful, we usually account them (saith Philo) as base and sordid; truth therefore ought much more religiously to be observed by us Christians, by how much we are enjoined to be simple and innocent,* 1.54 and forbidden, not only falshood and wrongful

dealing, but all idle talk and vain babling; yea,* 1.55 and since we have him for our Copy to write after, in whose mouth was found no guile. Wherefore as Lactantius saith, That man that is truly honest, will not say with Lucilius, Homini amico ac familiari non est mentiri meam; When with my friend I talke, I do not lye: But rather will think it his duty not to lye, though he have to do with a stranger or an Enemy, and at no time to do that thing, that may occasion his tongue to speak what his heart thinks not. Such as Sophocles testifies, was Neoptolemus the Son of Achilles, who being urged by Ʋlysses, to piece the Foxes tail to the Lyons skin, made this answer:

Ego audiens quae doleo, Laerta sate, Implere factis oderim multo magis: Nam sic nec ego sum natus, ut fallacias Secter, nec olim genitor, ut perhibent meus: At sum paratus vi mora, non fraudibus Pertrahere raptum.

So likewise Horace concerning his Father Achilles,* 1.56

Ille non inclusus equo Minervae Sacra mentito, male feriatos Troas & laetam Priami choreis Fallerat aulam:— Sed palam captis gravis, &c.

Whereby he intimates, That Achilles though Father of Neoptolemus,* 1.57 was of that noble and generous spirit, that he disdained even victory it self, if not obtained by mere manhood.

Thus Euripides also,

Generosus animus hostibus furtim necem* 1.58 Inferre nescit.

—A gallant soul hath he That scorns by stealth to kill his Enemy.

The like we read of Alexander, who being advised to circumvent his Enemies by some wile: answered, Se nolle furari victoriam; That he scorned to steal a victory. The like Polybius testifies of the Achaians, That they hated to use fraud though against their Ene∣mies, esteeming that the surest victory, which by the confession of their Enemies was so. Such were the Ancient Romans until the second Punick War, insomuch that Aelian appropriates this honour unto the Romans above all Nations; that they overcame their Enemies, not by craft or subtilty, but by plain force, And when Perseus the Macedonian King, was deceived with the hopes of Peace; the old Senators disowned such Roman arts, denying that their Ancestors (who gloried more in valour than in fraud) did ever manage their Wars, with that wiliness which the Carthaginians, or with such deceit as the Grecians used, with whom it was ever held more honourable to circumvent their Enemies by stratagems, than to overcome them in plain Battel; adding withal, That sometimes wit might prevail a∣gainst valour for the present; but that his courage was for ever quelled who was convinced, that in a pious and a just War, he was not by fraud, nor by chance, but fighting hand to hand with his whole strength in plain Battel vanquished: Yea and in latter times, Tacitus testifies of them, That the Roman people sought revenge upon their Enemies, neither by craft nor treachery, but o∣penly and by force of Arms. Such also were the Tiberines, who always proclaimed as the time, so the place, when and where they would give battel to their Enemies. And such were the Achaians, as Polybius testifies. The like doth Mardonius in Herodotus record of the Grecians of his time. (When James the fourth of Scotland, invaded the North of England with a powerful Army, Thomas E. of Surrey sent an Herald to him to let him know, that on the Friday following he would give him Battel in case he would stay so long in England; And Thomas his Son, sent the King word, that he would spare none save the King himself; and that he might find him in the van of his Army.* 1.59) But this (as I said before) proceeds rather from magnanimity of spirit, and confidence in our own strength, than from the justice of the thing.

XXI We must not enforce a man to do that w^ch he cannot law∣fully do.

As to the manner, how the War should be prosecuted, this rule is pertinent, What is unlawful for a man to do, is also unlawful for another to compel or perswade him to do, whereof let these suffice for examples. It is unlawful for any subject to kill his Prince, or to deliver up a Town or Fort without the consent of a Council of War, or to plunder

his fellow Subjects. And therefore it is likewise unlawful for me being an Enemy, to perswade another Prince's Subjects remaining so to do it. For evermore, He that oc∣casioneth another man to sin, doth therein sin himself: Neither is it sufficient to say, That it is lawful for him that excites such a man to do such a villainous act, to do it himself; for it is true, that it may be lawful for him to kill him, but not to do it in that manner. For that of St. Augustine is very true, Nihil interest utrum ipse scelus committas, an alium prop∣ter te admittere velis; It matters not much, whether a man do commit wickedness himself, or cause another to do it for him.

XXII. Yet if he offer himself, we may make use of him.

But it is another rhing, if such a person shall freely offer himself, without any instiga∣tion from us; for it is not unlawful for us to make use of him, as an instrument to effect that, which it is lawful for us to do, as we have already proved by the example of God himself* 1.60. Transfugam jure belli recipimus, saith Celsus; that is, It is no way repugnant to the Law of Arms, to receive Renegadoes into protection, and to make use of them. Neither are such to be delivered up, unless it be so agreed by the Articles of Peace.

CHAP. II. How Subjects Goods become liable to their Princes Debts.

• I. Naturally no man is bound by the fact of a∣nother, but the heir only.
• II. Yet by the Law of Nations, the Goods and Acts of Subjects, are liable to the debts of the Prince.
• III. An example whereof in the taking of men Prisoners.
• IV. And in seizing their Goods.
• V. Which is lawful, when the Right is denied, and when that is; where is also shewed, that though the thing be adjudged, yet it neither gives nor takes away any mans Right.
• VI. That the lives of innocent Subjects are not liable to satisfie the Princes debt.
• VII. The difference herein between the Civil Law, and the Law of Nations.

I. Naturally none but the Heir obliged by the fact of another.

LET us now descend to those Rights, which the Law of Nations grants unto us; some whereof appertain to every War, others to some particular kinds of Wars only. Let us now begin with generals. By the bare Law of nature no man is bound by the fact of another, but he that succeeds to inherit his Goods; for as soon as Dominion was first introduced, it was likewise agreed on, That all debts should pass, to∣gether with the Goods to the next Occupant,* 1.61 according to that old Law-Maxime, Tran∣seat fructus cum onere; Let the Estate and the Charge go together. The Emperour Zeno was wont to say, That it was contrary to natural equity, that one man should be molested for another mans debt. Hence arise those titles in the Roman Laws, That the Wife shall not be sued for the Husband, nor the Husband for the Wife; the Son for the Father, nor the Father or Mother for the Son. Neither as Ʋlpian saith expresly, shall any particu∣lar person be liable to the debts of the Commonwealth; that is, if the common stock be able to discharge them; otherwise they shall, not as individual persons, but as they are a part of the whole.* 1.62 If any man shall lend his money to my Country, saith Seneca, I shall not acknowledge my self his debtor, yet shall I willingly advance my proportion, not as my own debt, but to disengage my Country. And again, Singuli debebunt non tanquam proprium, sed tanquam publici partem; What the Commonwealth owes, every particular Citizen owes, not as his own debt, but as his part of the publick. It was particularly provided by the Roman Laws, That no one of the Villagers should be obliged for another of the Villagers debts: and in another place, That no ones possessions should be destrained for the debts of another; no, not for the pub∣lick. And in Justinians Novels, Reprisals are expresly forbidden, and this reason added, Because it hath no face or colour of justice, that one man should be the debtor, another enforced to pay the debt, where also such exactions are called odious. Thus did Theodorick in Cassiodore account it, for one man to be kept as a Pledge or Hostage for another.

II. But by the Law of Nati∣ons Subjects are for their Prince.

Although these things be true, yet by the voluntary Law of Nations it may be, nay as it ap∣pears, it hath been, introduced, That what debts soever any Civil Society, or their Prince shall contract, either primarily by themselves, or be engaged for by not rendring unto o∣thers that which is their right; all the Goods both corporeal and incorporeal of those that are subject to that Society or the Prince thereof, shall be liable and stand bound to discharge. Now this seems to be inforced by a kind of necessity; for otherwise the Gap would be so wide as to let in all manner of injuries. For the goods of Princes are but few, and those not so easily taken as those of private mens which are many: wherefore it is reckon∣ed

by Justinian amongst those Laws which custome had found requisite to be constituted, for the relief of humane necessity. Neither will this be found so repugnant to nature, that it might not be introduced by custom and by the tacite consent of Nations, seeing that Sure∣ties do stand firmly bound for other mens debts, without any other cause than by their voluntary susception only. And very probable it is that the Members of any one Society may more easily be relieved one by another, than Strangers can, whose complaints, though never so just, are little regarded in many places. Besides, the benefit that ariseth from this obligation, being common to all Nations, they that find themselves aggrieved by it at one time, may be relieved by it some other. Nor is this custom in force only where there is a perfect and compleat War between Nation and Nation. (For what is lawful in such Wars appears by the very words of their denunciation, Against the ancient Latine People,* 1.63 and a∣gainst the men of Old Latium, I denounce and make war, saith the Roman Herauld in Livy. So likewise when the Heraulds demand the peoples consent, they say, Is it your will and pleasure that War be forthwith denounced against King Philip, and his Macedonians, and against all that are under his Government. So also in the Decree it self, The Roman people do proclaim War against the Hermundulian people, and against the men of Hermunduli: which is all one as what in another place he expresseth in these words, Hostis sit ille, quique intra praesidia ejus sunt; Let him be declared an enemy, and whosoever betakes himself to his protection.) But this cu∣stom is in force even where there is no perfect war absolutely denounced, but where not∣withstanding a certain violent prosecution of our right is necessary; which is, as it were an inchoate and imperfect War. It is worth our observation what Agesilaus answered to Phar∣nabazus, being a Subject to the Persian King, O Pharnabazus,* 1.64 when heretofore we were friends to the King of Persia, we dealt friendly with all that appertained unto him; so now being his enemies, we use all his as enemies: and therefore since thou art willing to depend upon his protection, we may lawfully weaken him by thee. The learned Damascene doth prudently distinguish between the taking of Prizes or Reprizals for the recovery of debts, or reparation of damages, and the making of War, which he illustrates by the example of King Herod, For whom,* 1.65 though it were not lawful to make war upon the Arabians, yet was it lawful for him, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, to take prizes throughout all Arabia for the five hundred Talents due unto him, if not paid by a certain day appointed; for so it was expresly covenanted between them: and therefore Herod did rightly deny that to be the making of War, which was but a just and lawful way to re∣cover his own right.

III. An example in taking of men Prisoners:

A branch of the execution of this right was that which the Athenians called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the making men Prisoners; concerning which the Attick Law was this, If any man had been by forcible assault killed by a Stranger, the next of kin had a right to take any three men Prisoners, but no more, and to detain them until the Murderer were either punished, or delivered up to be punished. Hence we may perceive, That there is a kind of incorporeal right of Subjects (that is, a liberty to live where, and to do what they please) engaged for the debts of every Society, which ought to punish such of their own Society as shall dare to injure those of another Society; so that any of the Members of that Society that shall neg∣glect or refuse to do it, if taken, may be held in bondage until that Society do what they ought; that is, until they either punish or deliver up the Offender. For although the Egyptians (as Diodorus testifies) did maintain, That it was not just to imprison a man for debt; yet is there nothing in it repugnant to nature. And the general practice not only of the Grecians, but of most other Nations, is sufficient to warrant the contrary. Ari∣stocrates, who was Contemporary with Demosthenes, demanded, That a Decree might pass, That whosoever should kill Charidemus, should be taken away from what place soever; and that whosoever should make resistance, should be held as an enemy. In which De∣cree Demosthenes observes these errours: First, that Aristocrates did not distinguish be∣tween the putting to death of Charidemus justly or unjustly, seeing that possible it was that he might deserve death; next that he did not require that judgment should first be de∣manded against him: And thirdly, that not they amongst whom he should be killed, but they that should receive the murtherer being escaped into protection should be prosecu∣ted as enemies. Demosthenes his words are to this purpose, If a murther be committed a∣mongst any people, and they refuse either to punish or to deliver up the murtherer, the Law al∣lows the apprehension of three men; but Aristocrates leaves these men untoucht, and not so much as mentions them; but would have those persecuted as enemies who have according to the Com∣mon Right of Nations concerning suppliants received him that hath escaped by flight, for so I put the case, into protection, unless they deliver him. The fourth thing that he reproves, is, that Aristocrates would instantly bring it to an absolute War; whereas the Law requires only the detention of three men. Of these four exceptions, that Demosthenes takes against Aristocrates his Decree, the first, the second, and the fourth are not altogether without reason; but for the third, unless restrained to the sole event of the murther done, either accidentally, or in the defence of himself, I cannot perceive why it should be mentioned, unless it were like an Orator for arguments sake, rather than truly or justly: for as we

said before,* 1.66 That Right which all men challenge of receiving and defending Suppliants, doth concern those only whom Fortune, and not their own crimes have made miserable; for otherwise there is the same Law for those amongst whom the crime is committed, as for those who resuse either to punish or deliver the guilty. And surely either the Law it self cited by Demosthenes hath through custom been thus interpreted, or against such cavils was afterwards more liquidly exprest; the truth of one of these, none will deny, that reads that of Julius Pollux,* 1.67 whose words are these, The taking of men prisoners is then law∣full, when a man having demanded Homicides, (who have fled for safety to others) cannot re∣ceive them: For the right of apprehending three men lies against those, who having received male∣factors into protection, refuse either to deliver them, or to punish them according to Law. The like we find in Harpocration, The Right of taking prisoners is a Right to snatch away some men from some other City: For it was an ancient custom against such Cities as received Male∣factors, and refused either to punish them, or to deliver them to be punished, to make use of this Right of Pignoration. The like may be done by any City whose Citizen hath been mani∣festly and injuriously taken away and detained from them. Thus we read, that at Car∣thage there were some that opposed the taking of Ariston the Tyrian prisoner upon this ground,* 1.68 That the like would be done against the Carthaginians, both at Tyre, and at o∣ther Mart Towns, where the Carthaginians used to traffick.

IV. Reprizals law∣ful.

Another kind of forcible execution of this Right, is the taking of Goods between the People of divers Nations, which our Modern Lawyers call Reprizals, or a violent sei∣zing and detention of each others Goods, which the English and the Saxons call Wither∣nam, and the French, (even where it is wont to be obtained from the King) Letters of Marque: which also are frequently granted, and are of force, as Lawyers say, where Right is denied.

V. Our right be∣ing first deny∣ed, and when that is.

And this may be presumed, not only when they cannot in any reasonable time obtain judgment against a delinquent or a debtor: But when in a Case that will hardly admit of any doubt, sentence shall pass plainly against Right; for Cases that are ambiguous, the definitive power is supposed to be in the Delegates, as persons publickly chosen to do Justice,* 1.69 whose Authority notwithstanding is not of the same force to oblige strangers, as their own Subjects; nay, even between their own Subjects, it makes not a debt void that was justly due: For as Paulus the Lawyer observes, Verus debitor, licet absolutus sit, Natura tamen debitor permanet; He that owes a real debt, though he be discharged by the sen∣tence of the Judge, yet by the Law of Nature stands still obliged. And when by the injury of the Judge, a Creditor had taken away from the right Owner something that had not been the Debtors, as if engaged unto him: the question being put, Whether the debt being paid, that thing were to be restored to the debtor; Scaevola proved that it ought to be restored. But between a Subject and a Stranger, there is this difference, Subjects are bound up by the Sentence of the Judge, though it be unjust, so as they can neither resist the execution of it lawfully; nor by Force recover their own Right against a Sentence unjustly given, by reason of the efficacy of that power they live under: But Strangers have a coercive power, though it be not lawfull for them to use it so long as they may recover their Right in a Judicial way: wherefore in such a Case, that both the Persons, and the moveable Goods of his Subjects that refuse to restore what is violently taken away, may be by the like violence taken, is not introduced by Nature, but by Custom generally received in all Nations. The most ancient Example of this we may read of in Homers Iliads, where Nestor is said to drive away the Cattle of the Elidenses; because they had before plundered his Fathers Horses: whereupon as the story goes on, Proclamation was made, That every man to whom the Elidenses did owe any thing, should come and partake of the spoil, in such a manner, as that every man might have his just proportion. Another Example we have of this in the Roman History, where Aristodemus Tarquin's heir, seizeth the Roman Ships lying in Harbor at Cumae, which he detained for the Goods of the Tarquines detained in Rome. And in Aristotle we find a Decree against the Carthaginians to seize all foreign ships, if any man had a Right so to do.

VI. This Right reacheth not to the life of him that is ta∣ken.

It hath haply been believed among some people, that the lives of innocent Subjects do stand engaged upon the like account, and that haply upon this presumption, that every man hath an Absolute Power over his own life, which Power may be transferred unto the Common-wealth, which is very imbrobable; and as we have already said, not consistent with sound Divinity: yet it may fall out, that such Subjects may be killed, though not in∣tentionally,* 1.70 yet accidentally, namely, when they shall attempt by force to impede the execution of this Right. But yet if such a mischief may be foreseen, we are obliged by the Law of Charity to forbear the prosecution of our Right, as we have elsewhere shew∣ed; since by that Law, we that are Christians especially ought to set a greater value upon the life of a Man, than upon our Goods, as we have elsewhere proved.

VII. The distincti∣on that is here∣in made be∣tween the Law of Nations, and the Civil Law.

Moreover as well in this, as in several other Cases, we must take heed, That we di∣stinguish between those things that are properly due by the Law of Nations, and those

that are due by the Civil Law, or by a mutual agreement between some people. By the Law of Nations, all Subjects that are injurious unto the Subjects of another Prince are liable to this Law of Reprizals, especially if they have occasion to reside there, whether they be Natives or Strangers; but not if they be only Travellers, or sojourn there but for a little time. For these Pignorations are of the same nature with Taxes, which being raised for the discharge of publick debts, are imposed on such as are constant Inhabitants, and not on such as are Sojourners, and so subject to the Laws of the place for a while only. Neither are the Persons or the Goods of Embassadors, being not sent to our Enemies, any wayes liable to this right of Pignorations by the Law of Nations; as also in many places the persons of Women and Children are by the Civil Law often exempted: But even the Goods of such as addict themselves to Learning or to Merchandizing, may by the Law of Nations be taken by any, as their persons also were at Athens. But by the Civil Law of many places, this Right of seizing Goods or Persons, must first be demanded from the Supreme Power, but in other places from the Judges. By the Laws of Nations the Pro∣priety of things taken passeth immediately to him that takes them to the value of his principal debt, together with his charges, so as the remainder ought to be restored. Thus did the Venetians to the Genoese, as Gregoras relates; Whose ships, saith he, being taken at Galata, laden with Wheat, Barly, and Salt for Fish, whereof the Lakes of Copais,* 1.71 and Maeo∣tis, and the River Tanais affords great plenty, they did not diminish the least part of the Goods, but took great care to preserve them, until having received their just debts, they restored all they had taken entirely. By the Civil Law they that have any share in the Prizes taken are usu∣ally cited, and being adjudged lawfull, they are by publick Authority sold and divided among such as are concerned in them. But to be better informed in these and the like Cases we must consult such as have treated of the Civil Law, especially Bartolus, who hath written much concerning the matter of Reprizals. One thing I shall here add, because it serves somewhat to allay and qualifie the severity of this Law, in it self too rigid, name∣ly, That they who either by the non-payment of what they owe, or not doing that which is Right to such as they have wronged, do occasion the seizing of their fellow-subjects Goods, are bound by the Laws both of God and of Nature to make satisfaction for those losses, which other men through their faults have sustained.* 1.72 Thus Plutarch of the Sy∣rians, Many of them, saith he, would not contribute money, but commanded those that had either received or taken away other mens Goods to repair their loss.

CHAP. III. Of a Just or Solemn War, according to the Law of Nations; and of its Denunciation.

• I. That a Solemn War by the Law of Nations ought to be between divers people.
• II. A distinction between a Nation, though do∣ing unjustly, and a company of Thieves and Pyrats.
• III. Yet sometimes there happens to be a change.
• IV. It is requisite to a Solemn War, That he that makes it should have Soveraign Power; and how this is to be understood.
• V. And that the War be solemnly denounced.
• VI. Whereunto what by the Law of Nature, and what properly by the Law of Nations is required, is handled distinctly.
• VII. The denunciation of War is sometimes con∣ditional, sometimes simple and absolute.
• VIII. In denunciations, what belongs to the Civil Law, and not to the Law of Nati∣ons.
• IX. War being denounced against a Prince, is denounced also against his Subjects and Asso∣ciates, so far forth as they follow him.
• X. But not as by themselves considered; this illustrated by examples.
• XI. The reason why denunciation is requisite to some effects of War.
• XII. That these effects are not to be found in other Wars.
• XIII. Whether a War may be made as soon as it is denounced.
• XIV. Whether against him that hath violated the Rights of Embassadors a War may be made, though not denounced.

I. A Solemn War ought to be between two diverse Nations.

WE have already said* 1.73, That according to the Opinion of the best Authors, a War is oft-times said to be Just, not from the Cause that excites it, nor from those Heroick Actions that are done in it, but from some peculiar effects of Right which one War hath more than another. But what manner of War this is, is best understood by the definition which the Romans give of an enemy, Hostes sunt qui nobis, aut quibus nos publicè bellum decernimus; They are Enemies, saith Pomponius, against whom we publickly denounce War, or who do the like against us; the rest are but Pyrats and Robbers: to the very same purpose speaks Ʋlpian: Wherefore as he there adds, He that is taken by Robbers, is not a slave to those that take him, neither need he recover his freedom by the Right of Postliminy,* 1.74 as one that returns out of Captivity doth. A Piratis aut latronibus captus, liber permanet, saith Paulus the Lawyer; He that is taken prisoner by a Robber or a Pyrat loseth not thereby the priviledge of a Citizen, as he doth, that is taken pri∣soner in War by the Germans, or by the Parthians. Whereunto we may add that of Ʋl∣pian, In Civil Dissentions, although the Common-Wealth be dangerously wounded, yet doth not the Contest extend to the ruine of the State; they that betake themselves to ei∣ther part are not such mortal Enemies, as they are to whom the Right of captivating men, and of Postliminy belong: And therefore though they be taken and sold, yet whensoever they shall recover their liberty, they shall not need to petition their Prince to restore them to their Freedom, because they never lost it by a just Captivity. This only is to be ob∣served, That under the Example of the People of Rome, whosoever in any City or Com∣mon-wealth hath the Supreme Power, hath a Right to make a Just War; according to that of Cicero,* 1.75 Ille hostis est, qui habet Rempublicam, Curiam, Aerarium, &c. He is account∣ed an Enemy who enjoys a Common-Wealth, a Court, a Treasury, the Consent and Con∣cord of Citizens, with some regard had, if the matter require it to Peace and Leagues: The word Hostis, signifies properly an Equal, which Pyrats and Robbers cannot be to So∣veraign Princes; and therefore they cannot be said to make a Just War.

II. A distinction between a Na∣tion doing things unjust∣ly, and Pyrats, and Robbers.

Neither doth a Common-wealth cease to be a Common-wealth, because some Acts of Injustice are publickly and generally committed by them; nor are Robbers or Pyrats to be deemed a Civil Society, because haply they do observe some kind of equality between themselves, without which no Society can possibly long subsist: For these latter are not (as Procopius speaks* 1.76) Turba hominum, Lege congregata, sed injustitiae causa, in unum coacta; A company of men associated under a Law, but forced to unite, to defend themselves against the Law: whereas the former, though guilty sometimes of some injustice, and so not without some faults, yet do they associate for the defence of their own Right, and do Right unto Foreigners, though haply not in all things according to the Law of Nature, which in many places is almost obliterated; yet certainly according to those Covenants and Agreements which they have made with every Nation, or according to the Customs by them used.* 1.77 This the Scholiast upon Thucydides observes, That whilst the Grecians preached Pyracy as a lawfull Calling, they at the same time abstained from Murther, from

robbing by night, and from driving away the Oxen that ploughed the earth.* 1.78 And Strabo records it of divers other Nations, who though they lived by Piracy; yet as soon as they returned home, would send to the right Owners, that if they would they might redeem their Goods at indifferent prizes. And hitherto we may also refer that of Homer:

Ipsi etiam rapti avidi, qui aliena pererrant Littora, concessu Superûm si praeda reperta est, Navibus impletis abeunt, & vela retorquent: Quippe Deos metuunt, memores fandi atque nefandi.

Greedy of Gain to foreign Coasts they stray; If by their starry Guides they find a prey, With sails retort they go, their Ships full fraught, Fearing the Gods, minding what's good, what's nought.

The Ancient Normans accounted Piracy an honourable Trade to live by. And Plutarch notes of the Scipii, that they were extremely corrupt (yet a Commonwealth) although they robbed even such Merchants, as came in a friendly way to traffick with them; but in Morals the principal part gives form to the whole: And as Cicero well observed,* 1.79 Be∣cause it contains the most parts, and spreads farthest, therefore it gives denomination to the whole. To the same sense is that also of Galen, In temperaments the denomination is always taken from that which is the greatest portion. Wherefore Cicero is very crude in his expression in saying, That when the King is unjust, the Nobles unjust, and the generality of the People so, it is not so properly a corrupt Commonwealth, as none at all: which sentence of Cicero's, St. Augustine thus corrects, Neither can I therefore say truly, that that people are no people,* 1.80 or that Commonwealth no Commonwealth, so long as there remains any society of a rational multitude, unanimously congregated for the mutual defence of such things as they love. A Body though dis∣eased yet remains a Body; and a City is still a City so long as it hath Laws, and executes judgments, and hath other means necessary for both natives and strangers, to preserve or re∣cover their just Rights. That which Dion Chrysostome observes, comes much nearer to truth, who tells us, That the Law (especially that of Nations) is in a City, as the Soul in an humane Body; which being taken away, it remains no longer a City.* 1.81 So likewise Cicero in another place, There were neither Laws nor judgments, nor any sign to shew that there was a Commonwealth. Aristides in his perswasive Oration to the Rhodians for Peace, proves that many good Laws may very well consist even with Tiranny. And Aristotle informs us,* 1.82 That he that strains the power, either of the Nobles or of the People, to too high a key, marrs the Harmony of good Government; and first corrupts the Commonwealth, and then destroys it. Let us illustrate this by examples: That they who are taken by Robbers, are not made slaves, was (as we have said) the opinion of Ʋlpian. But if a Roman Citizen was taken by the Germans or Parthians, he lost his freedom; and yet among the Germans,* 1.83 the Roberies that were done without the bounds of the City were blameless, which are Caesars own words. Tacitus records it of the Garamantes, that they were, Gens Latroci∣niis foecunda, sed Gens tamen; A Nation wholly addicted to Roberies, but yet a Nation though. The Illirians spoiled all they met at Sea without regard; but yet to him that subdued them, was a triumph granted; which was denied to Pompey who had purged the Sea of Pi∣rates. So great is the difference between a Nation though corrupt, and a company of men combined only to do mischief.

III. Yet there often happens a change.

Yet a change doth sometimes happen, not in particular persons only; as in Jephtha, Ar∣saces, Variatus, who of Captains over Thieves and Robbers, became lawful Commanders; but in Societies also: As when a company of Robbers or Pirates shall forsake that wicked kind of life, and unanimously betake themselves to a Civil Government, an example whereof we have in the Mamertines. St. Augustine concerning Robberies speaks thus, When this mischief by the concourse of men of desperate fortunes, grows so great, that they betake themselves to some certain place to inhabit, and there build Cities, raise Forts, and thereby are able to subdue Nations; then it assumes the title of a Kingdom or free State: Not, as St. Augustine goes on,* 1.84 that they cease to be what before they were; but because what they formerly did through fear, and therefore secretly, they now do with boldness and confidence. It was a bold answer, that Diome∣des the Pirate made to Alexander the Great, when he demanded of him the reason why he so troubled the Seas; For the same (saith he) that thou dost the World: But because I rob with one single Ship, I am called a Pirate; whereas thou, because with a great Fleet, art therefore stiled an Em∣perour. But that which makes this change according to what is here intended, is not so much their impunity as their repentance. For this St. Augustine requires, that deserting their wicked courses, they live together under some wholsom Laws, according unto which, justice may be administred, as well to strangers, as natives.

IV. A solemn War ought to be be∣tween such as have Sovereign Power.

Who they are that have soveraign Power we have already shewed, from whence we may also collect, That he that hath that power but for a part, may for that part make a just War; much more, they who are not Subjects but Confederates, though on Articles very unequal. Thus were all the Wars between the Romans and their Confederates, the Vol∣scians, Latines, Spaniards, and Carthaginians, just; though their Confederacies were made on very unequal terms, as we may collect out of Histories.

V. A solemn War must be de∣nounced.

Neither is it sufficient to denominate a War, in this sense just, that it is made between such as have soveraign Power: But as we have heard before, it must be publickly declared; yea so publickly, that both parties may have equal knowledge thereof, which Ennius calls the proclaiming of War, Bellum inferre non ante denuntiatum, injustum est; To make War before it be denounced is unjust:* 1.85 to exercise Hostility without denouncing War or requiring satisfaction, is not done like a Christian, nor allowable by the Law of Nations; as the English Ambassador told the Emperour of Russia. And therefore as Cicero well observes, To determine of the equity of a War,* 1.86 was a Right proper to the Colledge of Heralds which was a∣mongst the Romans held very sacred; thereby giving us to understand, that no War could be just, but that which was made, either for the recovery of things unjustly taken away, or publickly de∣creed and solemnly proclaimed. Not so clear is that of an Ancient Writer, quoted by Isi∣dore, That War is just which is made by publick Edict, either for the recovery of our own, or for repelling an invading enemy. Livy describes a just War thus, That War which is openly decreed by publick Edict, and solemnly denounced, is just; that is, if it be so done by such per∣sons as have the supreme Authority. And the same Authour having first declared, That the Epirots had wasted the Territories of Athens, saith, That the Athenians were first high∣ly incensed against the Epirots, and afterwards by the Decrees of their Cities, first voluntarily denounced, and then waged against them a just War.

VI. Wherein what is required by the Law of Na∣ture, and what by the Law of Nations.

For the clearer understanding of this and the like places, which concern the denuntia∣tion of War, we must accurately distinguish what things are due by the strict Law of Na∣ture; and what things are honest and commendable, though not by nature due; Third∣ly, What things are by the Law of Nations required to the obtaining of the proper effects of the right of Nations; and lastly, What things do arise from the peculiar Laws and Cu∣stoms of some people. By the Law of Nature, where force cannot be repelled but by force, and where punishment cannot be demanded but of him who is the Offender; there the de∣nouncing of War is needless.* 1.87 Sthenelaidas in Thucydides pleads thus† 1.88, Non est quod verbis & judciis disceptemus ultra verba laesi; 'Tis vain to contest with words and arguments, when the wrongs which we manifestly sustain, are more than verbal. Thus likewise do the Plateans in the same Authour plead* 1.89, By that Law that is received by all Nations, it is lawful to repel him by force that shall invade us like an enemy. So Flaminius in Diodorus† 1.90, calls all, both Gods and men, to witness, That according to this Law, the King, and not himself, was the Aggressor. And if so, then as Latinus in Halicarnassensis notes, Every man that is by a War damnified, may right himself upon him that began it. And as Aelian out of Plato, Quod ad propulsandam vim sus∣cipitur Bellum,* 1.91 non à Caduceatore, sed à natura indicitur; That war that is made against an In∣vader, needs no other Herald to proclaim it than nature it self. And herein is that of Dion Chrysostome verified, That many wars are made, which were never denounced. Neither is there any thing else that Livy blames in Menippus King Antiochus's General, but that he had slain certain Romans before any war was denounced, or any hostile act had proceeded so far as either to the drawing of a weapon, or the effusion of bloud in any place; intimating thereby, That i•• ••ither of these cases that fact of Menippus had been justifiable. Neither doth the Law of ••ature necessarily require,* 1.92 That the right Owner being to apprehend what is his own, should first denounce war, or declare his intention before he do it. But so often as one thing is to be taken in lieu of another, or the Goods of a Debtor attached for a Debt; there a predemand is necessary: much more is it necessary when the Goods of Subjects are to be seized for the Debt of their Prince, that thereby it may appear, That we had no other means or way left, but by war to recover either our own, or what is due unto us. For the right that we have in the things so seized, is no primary, but a surrogated right, as we have elsewhere declared. The like may be said of him who hath the supreme Authority, who cannot justly be invaded for either the debts or the faults of his Subjects, until satisfaction hath been demanded; which if denied, renders the Prince also culpa∣ble, either by participating with them in the wrong done, or at least by omitting what he ought to do,* 1.93 according to those Rules which we have elsewhere given. Nay farther, even where the Law of Nature doth not require any such demand to be made, yet may it be done both honestly and honourably, to the end that men may be more careful to ab∣stain from giving offence; and that those already given, may be expiated by confession and satisfaction: according to those Rules which I have already prescribed for the preven∣tion of those mischiefs which do usually accompany War, whereunto even that also ap∣pertains:

Extrema primo nemo tentavit loco. No man at first unto extremes will flye.

When all Israel were ready to fall on the Gibeonites to revenge the outrage done to the Levites Wife, the Elders restrained them, urging,* 1.94 That it was not fit that they (who were for∣bidden by the Law, rash••y to make war upon Strangers, though justly provoked, till by their Am∣bassadours they had sought all means to induce them to do them justice) should unadvisedly fall upon their Brethren, until they had first heard their grievances and denied satisfaction. And as to that Command which God gave unto the Israelites, Deut. 20.2. namely, That be∣fore they fought against any City, they should offer them peace. It was peculiarly given to that Nation, and therefore not at all to be confounded with the Law of Nations. Nor was that peace which was so offered an absolute peace, but on this Condition, That they would submit and pay tribute. When Cyrus had march'd with his Army into Armenia,* 1.95 he forbore all hostile acts till he had sent Ambassadours to the King to require of him the Tribute and Succours by the League due; esteeming it (as Xenophon speaks) more friendly thus to proceed, than to act farther, until he had declared the ground of the War. Ne∣vertheless by the Law of Nations, as to those peculiar effects of a just War, a publick de∣nunciation is in all cases requisite, if not on both sides, yet on one.

VII. War denoun∣ced sometimes conditionally, and sometimes absolutely.

This denunciation of War is sometimes conditional, and sometimes absolute. Condi∣tional, when restitution or satisfaction is demanded at the same time when the War is de∣nounced. Now the Fecial Law (whereby the Heralds are guided) do under the Notion of things demanded, comprehend not only a vindication of what is due by the right of domini∣on, but the persecution also of whatsoever is due, either upon any civil account, or by reason of any crime committed, as Servius rightly expounds it. Hence it is, that in all such Condi∣tional Denunciations we read either of some things to be restored, of some damages to be repaired, or some Offenders to be delivered up; unless they from whom such Offenders are demanded, shall chuse rather to punish them themselves, as we have elsewhere said. And that this solemn Demand of things was called Clarigationem, or a proclaiming of War, Pliny testifies in these words, Et Legati cùm ad Hostes clarigatum mitterentur, id est,* 1.96 res raptas clare repetitum, unus utique Verbenarius vocabatur; And Ambassadours, when sent to their enemies to demand with a loud voice restitution of things taken away by force, one of them was called Verbenarius, an Herald, because he was always crowned with Vervin. And in another place, speaking of Vervin, he saith, That it is that Herb which Ambassadours and Heralds do usually carry with them to their enemies, as we have elsewhere shewed.* 1.97 One example of this conditional denouncing of War we have in Livy, in these words, Which injuries,* 1.98 unless redressed by those that occasione•• them, they are resolved with all their power to revenge. Another we have in Ta∣citus, Ni supplicium in malos praesumant, usurum promiscua Caede; Ʋnless punishment be inflicted on the Malefactors, they will seek their revenge by War. And of this kind of proclaiming War we have an ancient Precedent in Euripides, where Theseus gives this Charge to his Ambas∣sadours:

Vicina Theseus qui tenet Regni sola Humare poscit mortuos; quod si datur, Sit amica faciet Gens Erechtidûm tibi. Haec si probantur, tam refer retro pedem; Sin nemo paret, verba sint haec altera: Jam mox ut Arma pubis expectent meae.

All which Papinius, rehearsing the same Story, abreviates in this Verse,

Graves for the slain, or War 'gainst Thebes proclaim.

A pure or absolute denunciation is that which is especially called an Indiction or Proclama∣tion,* 1.99 which is either when the other Party hath already begun the War (which is that which in Isidore is called a War to repel the force of an invading Enemy;) or when he him∣self hath committed that which deserves to be punished. Sometimes after a denunciation that is conditional, there follows another that is pure and absolute, though not necessari∣ly, yet redundantly. Hence ariseth that usual Form, Testor hunc Populum injustum esse, neque jus reddere; I declare this Nation to be unjust, neither will they do right. And this other Form, Concerning which matters, differences and causes, Remonstrance hath been given by the Chief Herald at Arms of the People of Rome, to the Chief Herald at Arms of the Ancient La∣tines, and of the People of the Ancient Latines; but yet neither have they paid, given or done any of those things which they should have paid, given or done: wherefore I do judge, agree and ordain, That satisfaction be sought by an open and a just War. Whereunto we may add a

third Form, which follows, Because the people of the Ancient Latines have injured the people of Rome, and failed in what they ought to have done, and because the people of Rome have decreed to make war against the Ancient Latines; therefore I and the people of Rome do de∣nounce and make war against the Ancient Latines.* 1.100 But yet that the denouncing of War is not in this case (as I have said) precisely necessary, is plain by this, That it is sufficient if it be proclaimed but at the next Garrison. For thus it was adjudged by the Heralds, as well in the case of Philip of Macedon, as afterwards in the case of Antiochus; Since he is first to de∣nounce the War that seeks satisfaction by the War. Nay, the War that the Romans made against Pyrrhus was denounced but to one of his Souldiers, and that in the Flaminian Cirque only. Besides, this also gives an occasion to another needless Observation, That War is sometimes solemnly denounced on both sides; as that Peloponesian War, which was made between the Corcyrians and the Corinthians; whereas had it been proclaimed but on one side only, it had been sufficient.

VIII. 3. In denoun∣cing War what is required by the Civil, and what by the law of Nations.

That Heralds were usually sent to denounce War among the Graecians, clad with party-coloured Coats, and armed with a bloody Javelin by the Aequicoli first, and afterwards in imitation of them by the Romans. That there should be a solemn renunciation of all former friendship and alliance, (if any such there were) after thirty dayes demand of re∣paration for damages received; And that the King of the Heralds should again thrust his Spear into the enemies ground, as Servius upon the ninth of Virgils Aeneads records, and the like,* 1.101 are not dictates of the Law of Nations, but are Ceremonies arising from the Customs and Institutes of some particular Nation, many of which Arnobius confes∣seth, were antiquated in his time, and some of them grown out of use even in Varro's. The third Punick War was as soon made as denounced, and it was the Opinion of Me∣coenas in Dion, that some of those Ceremonies were peculiar to popular States only.

IX. War denoun∣ced against a Prince, is de∣nounced a∣gainst all that adhere unto him.

War being denounced against him that hath the Supreme Power in any Nation is pre∣sumed to be denounced also against not only all his Subjects, and against all that shall af∣terwards adhere unto him, as being his Associates. And this is the meaning of our Mo∣dern Lawyers, when they say, Diffidato Principe, diffidati sunt omnes adhaerentes; War Pro∣claimed against a Prince, is proclaimed also against all that shall side with him: For Diffi∣dare with them is to proclaim War, which is to be understood of that very War which is made upon him against whom it is denounced: As when the Romans denounced War a∣gainst Antiochus, they thought it needless to denounce it against the Aetolians also sepe∣rately,* 1.102 who had publickly espoused Antiochus his quarrel; for say the Heralds, The Aetolians have spared us that labour, by denouncing War against themselves.

X. But not by themselves considered.

But that War being ended, If any other either Prince or People are to be invaded for Succours sent unto our Enemies during that War, we ought to denounce that War a∣new, if we expect the effects proper unto a Just War by the Law of Nations: For such a Prince or State are not then to be looked at as Accessaries, but as Principals. Neither is it the prosecution of the old War, but the beginning of a new: Whereunto, as the Law of Nations requires a solemn indiction, so by the Civil Law of the Romans was it not to be undertaken, untill it had the Warrant of a new Decree from the People. Wherefore the War that Manlitis made against the Gallo Graecians, and that which Caesar made against Ariovistus were not justifiable by the Law of Nations. And whereas when the consent of the People of Rome was asked to make War against King Antiochus, the question was put in this form,* 1.103 Is it your Will and Pleasure, that War be made against King Antiochus, and against all that shall side with him? (Which was also the form used in the Decree against King Perseus.) It ought to be understood with this limitation, namely, so long as that War shall continue with those two Kings, and with those who are truly and really engaged in it with them.

XI. 4. Why de∣nunciation is necessary to some effects of War, in a So∣lemn War.

Now the reason why a Solemn Denunciation is so necessarily required unto such a War as by the Law of Nations is Just, is not (as some think) to prevent deceit and treachery; for this is better referred to Magnanimity than to Justice. Thus have we read of some Nations so confident of their own strength, that they have appointed the time and place long before, when and where they would give their Enemies battle: As Plutarch tells us, that the Romans did to King Porsenna† 1.104. Thus Thomas Earl of Surrey sent an Herald to James the fourth King of Scotland, to let him know, that on the Friday following he would give him Battle, if he would stay so long in England; and Thomas his Son, then Lord Admiral sent the King word, that he might find him in the Van of his Army; as Herbert Records it in his History of Henry the Eighth,* 1.105 pag. 43. But the true reason is to remonstrate unto all Nations, That the War is made not rashly or upon any private ends, but with the Consent and Approbation of both Nations, or at least of those who have the Supreme Power on both sides. For from hence ariseth those effects proper to a Just War, which in a War made with Pyrats and Robbers, or in a War made by a Prince against his own Subjects will not be allowed. And therefore Seneca did well distinguish between a War denounced against Foreigners, and that made against Subjects or Citizens.

XII. Which are not in other Wars.

Now where some note, and by examples teach, that even in such Wars as these, what∣soever is taken away immediately becomes his that takes it: I answer, That this is true but on one side only, and that likewise by the Law of Nature, but not by the voluntary Law of Nations, which makes provision for the safety of Nations only,* 1.106 and not of those who are either no Nation, or but a corrupt part of one. They likewise are in an errour, who conceive, that in a War undertaken for the defence either of our own persons or our Goods, there needs no Denunciation; for even in such a War Denunciation is altoge∣ther necessary, though not simply, yet to the obtaining the effects proper to a Just War, as we have already hinted, and shall hereafter more fully explain.

XIII. Whether a War may be as soon made as denounced.

Neither are they in the right who hold, That War cannot justly be as soon made as it is denounced, which Cyrus did against the Armenians, and the Romans against the Car∣thaginians, as I said before. For the Law of Nations requires not that any time should be allowed, the War being denounced; yet notwithstanding the nature and quality of the business may haply require that some time be given, as in case Restitution be demanded, or punishment against an Offender, but not as yet denied: For in these Cases convenient time is to be granted for the doing of it.

XIV. Whether it be to be denoun∣ced, in case the Right of Em∣bassadors be vi∣olated.

Nay, though the Rights of Embassadors should be violated, yet it will not thence fol∣low, That to the attaining those Effects, which are proper to a just War, Denunciation is not necessary; for it is sufficient if it be done either by Citation, Declaration, Proclama∣tion, or any other safe way or means, as is customarily done in such places, whereunto we cannot without danger approach.

CHAP. IV. That in a solemn War, the Right of killing Enemies is by the Law of Nations granted.

• I. The effects of a solemn War generally ex∣plained.
• II. The word Lawful distinguisht, into what may be done without blame, though it may be more commendably otherwise; and what is done is unpunishable.
• III. That the effects of a solemn War generally considered, are therefore lawful because un∣punishable,
• IV. Why such effects were introduced.
• V. Divers testimonies concer••ing those effects.
• VI. In this sense it is lawful to kill, or any o∣ther ways to distress all that reside in an Ene∣mies Territories.
• VII. What if they came thither before the War.
• VIII. That the Subjects of an Enemy may in any place be assaulted, unless protected by the Laws of a foreign Prince.
• IX. That this licence extends to Women and In∣fants:
• X. Yea, and to Captives, and that at all times:
• XI. Yea, even unto such as are willing to yield themselves, if not accepted of:
• XII. Also unto such as surrender themselves without condition.
• XIII. That this Right ought not to be refered to any other cause, as to Retaliation, Obstina∣cy, &c.
• XIV. That this licence may be extended even to Hostages.
• XV. By the Law of Nations it is forbidden to kill by Poyson.
• XVI. Or to Impoison either Waters or Wea∣pons.
• XVII. But not any other ways to corrupt their Waters.
• XVIII. Whether the Law of Nations will ad∣mit the killing of an Enemy by a private Mur∣therer, explained.
• XIX. Whether the ravishing of women be per∣mitted by the Law of Nations.

I. The Right of killing Ene∣mies in a so∣lemn War.

SERVIƲS upon this Verse of Virgils,

Tum certare odiis, tum res rapuisse licebit.

Then lawful 'twas to fight, to kill and spoil.

deriving the fecial Laws from Ancus Martius, and so upwards from the Aequicolae, tells us, That when any great injuries were done unto the Romans by any other Nation, the Pater patra∣tus, or President of the Colledge, with some other of the Heralds, whose office it was to con∣tract Leagues, and denounce War, went to the borders of that Nation, and there with a loud voice proclaimed the cause of the War; and if they did not restore the things taken, or deliver up the

offender within thirty days, then he cast a Javelin into their Territories, which was the begin∣ing of the War; that done, it was lawful for them to kill and spoil. He had before said, That the Ancients under Res rapere, comprehended all manner of injuries; and under Res reddere, the restoring things, all manner of satisfaction, though there were nothing at all of rapine in the case: Whence we learn that a War solemnly denounced between two Nations, or their chief Magistrates hath some peculiar effects;* 1.107 which War in its own nature cannot challenge, all which are very agreeable to what we have already quoted from the Roman Lawyers.

II. The word law∣ful distin∣guisht.

Which words of Virgil that we may the better understand, we must note, That the word Lawful is taken in a twofold sense; for in the first place, that is said to be lawful which is altogether just and honest, though haply some other thing may be more com∣mendably done; in which sense S^t Paul speaking of things in themselves indifferent, saith, All things are lawful for me,* 1.108 but all things are not expedient: As for example, to marry is lawful,* 1.109 but to contain if it be with a pious intention is more laudable. For as Tertullian well observes, Continence would lose her best evidence, if to marry were unlawful. Virgins, saith St. Hierome,* 1.110 deserve the greater honour, because what they may do without sin, they voluntarily dis∣dain.* 1.111 And again, All those supereminent vertues that lead to perfection, are left as Arbitrary to our Auditors: Nulla tibi imponitur necessitas, ut voluntas praemium consequatur; No necessity is imposed on thee, that what thou dost truly, may receive the greater reward. St. Chrysostome speaking of Matrimony shews, That although it be lawful, yet it is better to abstain; and yet in his exposition on the seventh to the Romans,* 1.112 he saith, That to them that do not what they are commanded, Hell is denounced; thereby shewing, that things absolutely commanded, are not of the same nature with those that are left to their own free choice: As Virginity and the renoun∣cing of our possessions, because those that are commanded must of necessity be done. And there∣fore in his second Oration concerning Fasting, He placeth Virginity without the lists; and a∣bove that which we are commanded to strive for; unto which, as he that can attain, shews his Christian magnanimity; so he that shall fall short of, easily obtains pardon. And in this sense also are second Marriages lawful, although to have been contented with one only were much better,* 1.113 as Clemens Alexandrinus rightly states the Question; where speaking of a man that had contracted a second Marriage, he saith, That although therein he sinned not, be∣cause there was no Law that forbad it; yet could he never attain unto that perfection of holi∣ness, that the Gospel seemed to commend unto us. So for a believing Husband to put away his unbelieving Wife is lawful, as St. Augustine affirms, (which with what circumstances is to be verified, it is not to our purpose in this place to discuss) but yet he may, and that haply more laudably retain her: Wherefore he adds, Both are equally lawful, according to the rules of Divine Justice; for neither of them are prohibited by God, but yet both are not e∣qually expedient. Ʋlpian concerning him that having sold his Wine, and covenanted with the buyer, that if he fetcht it not by such a day, it should be lawful for him to pour it out, saith, That although he may do it, yet if he do it not, he is the more to be commended. Se∣condly, this word Lawful may be taken for that which is not punishable by humane Laws, although it consist not with Piety, or the rules of Morality; thus in many Countries for∣nication is lawful, that is, not punishable. Amongst the Lacedemonions and Aegyptians theft was lawful. And in Quintilian we read, That there are some things, which though not in their own nature commendable, yet that are by the Laws tolerated; as by the Laws of the twelve Tables, The body of the Debter might de divided among the Creditors; all which, though in themselves unfit and unseemly, yet are by some Lawgivers permitted to avoid greater inconveniencies: Licentia plerumque est tentatio Disciplinae; Licence, saith Tertullian, is for the most part but the touchstone of Discipline. All things, saith S. Paul, are lawful, but all things edify not. Now this acception of the word Lawful is somewhat improper, as Ci∣cero testifies in his Tusculans,* 1.114 where speaking of Cinna, who had been four times Consul, and had caused divers of the chiefest of the Roman Nobility to be slain, saith thus, Shall we esteem this man happy; nay, on the contrary, I think him miserable, not because he committed these things, but because he so governed the Commonwealth, that he might lawfully commit them: not that it is lawful for any man to sin (Sed sermonis errore labimur, dum id licere dicimus, quod cuique conceditur;) But we are misled through the common errour of speech, whilst we pronounce that lawful which is only permitted.* 1.115 Whence Columella concludes, That we ought not to prosecute our revenge to the utmost of what we may, for extreme severity is too near a Neighbour to extreme cruelty: Yet notwithstanding, though this acception of the word Lawful, be not so proper, yet is it among the Romans very frequent, as will appear by the same Cicero, who thus bespeaks the Judges,* 1.116 Quid deceat vos, non quantum liceat vobis, spectare debetis; Ye that are Judges ought to consider, not so much what in strictness of Law ye may do, but what in every case is most fit and convenient to be done; for if you regard your own power only, ye may put to death even whom you will. In the same sense, as it is usually said of Kings, That they may do even what they please, because they are exempted from the lash of humane Laws; yet is that advice which Claudian gives unto his Prince, much more worthily to be by all Princes received:

Nec tibi quid liceat, sed quid fecisse decebit, Occurrat.—

—Resolve to do, Not what you may, but what becometh you.

Musonius highly blames those Princes who study more their own Prerogatives,* 1.117 than the Good of their Subjects, and that say, thus and thus I can do, rather than thus and thus I ought to do. Hence it is, that we find these two words, Licet and Oportet, it is lawfull, and it behoves, placed sometimes in opposition one to the other:* 1.118 As in Ammianus Marcel∣linus, Sunt aliqua quae fieri non oportet, etiam si licet; Some things there are which are not fit to be done, though lawfully we may do them. So in Pliny's Epistles, Things that are dishonest we must avoid, not as they are unlawfull, but as they are shamefull. And as Cicero himself affirms the same, Est enim aliquid, quod non oporteat, etiamsi licet,* 1.119 Somethings are not fit to be done, though lawfull. And in his Oration for the defence of Milo, he distinguisheth be∣tween fas and licet, attributing to the former, that which is agreeable to the Law of Na∣ture, and to the latter, that which was agreeable to the Laws of particular Countries. So Quintilian the Father in one of his Declamations tells us,* 1.120 That It is one thing to look strictly to what is a mans Right, (i. e.) to what a man may do; and another thing to respect that which is just: Aliud est spectare jura, aliud justitiam.

III. In War the ef∣fects are law∣full generally, that is, not pu∣nishable.

In this sense therefore it is lawfull for one Enemy to hurt another, both in his Person, or in his Estate; It is lawfull, I say, not only for him that makes War upon a Just ground, and that in the prosecution of that War contains himself within those bounds, which by the Law of Nature are prescribed him, as we have already said, but for both parties, and that without distinction. So that he that doth thus injure his Enemy, though he be ap∣prehended in another Princes Dominion, yet can he not be proceeded against as an Ho∣micide, or as a Thief; neither can any other Prince for this only Cause make War upon him, and in this sense is that of Salust true: By the Law of Arms all things are lawfull to the Conquerour.

IV. Why such ef∣fects were in∣troduced.

Now the Reason of this so great a licence granted by all Nations, is this, because when two Nations are at War, for any other Nation to judge, where the Right is, had been dan∣gerous; for by that means, that Nation may quickly be intangled in the others War, as the Marseillians pleaded in the Cause of Caesar and Pompey: And therefore they confest, That they had neither Wisdom nor Power sufficient to determine, whether of them had the Juster Cause. Besides even where the War is manifestly Just, it is a very nice thing by any outward token to judge which is the Just Rule or Measure, either of defending our selves, of recovering our own Right, or of exacting punishments: So that it is agreed, that it is much better to leave it to the Honesty and Conscience of the Princes engaged to determine of these things among themselves, than to refer it to the arbitrement of others. Thus did the Achaians demand of the Roman Senate, How it came to pass, that what had formerly been acted by the Right of War, should now fall into debate? Now besides this of li∣cence and impunity, there is another effect of a Just and Solemn War, namely Dominion, whereof we shall treat hereafter.

V. Testimonies of these effects.

But the licence that a Just War gives to one Enemy against another, extends either to his person, or his Estate: And first to the person of an Enemy, and hereof we have many testimonies recorded in the most approved Authors: The Greek Proverb acquitteth the Souldier for what he doth against the person of an Enemy in the time of War, in that it saith,

He guiltless is that doth his Enemy kill.* 1.121

The custom of the ancient Grecians was not to wash nor to eat with an Homicide, much less to joyn with him in any Duties that were holy, and yet with him that in the War had killed an Enemy it was lawfull. And in all Authors we read, That to kill was Jus Belli, the Right of War. Marcellus in Livy justifies himself by this Right,* 1.122 Quicquid in ho∣stibus feci, jus belli defendit; Whatever I did among mine Enemies, the Law of Arms doth defend me in. And so doth Alcon justifie himself and his Soldiers to the Saguntines, Suf∣fer your Wives and your Children to be dragged about and ravished before your faces, accord∣ing to the licence given in Wars, for better it is with patience to endure those out-rages, than that they should put you all to the sword. And the same Livy having declared, the general Massacre of the Astapenses adds, That it was done by the Right of War. Cicero likewise in his Oration for King Dejotarus pleads thus, And why, O Caesar, should he be suspected as thine enemy, who could not forget, that whereas thou mightest have adjudged him even to death by the Law of Arms, thou madest both him and his Sons also Kings? And in another place he confesseth, That whereas Caesar,* 1.123 by the Right of a Conquerour might have sentenced them all to

death,* 1.124 he out of his Princely Clemency had preserved them. Caesar in his Commentaries ac∣quainted the State of the Hedui, That he saved their people, whom by the Law of Arms he might have slain. Josephus also in his Jewish War, accounts it an honourable death to dye in the War; but he means to die by the Law of Arms, or at the Will and Pleasure of the Conque∣rour: Of the same mind was Papinius,

Non querimur caesos; haec bellica jura, vicesque Armorum.—

—Nor for our slain we grieved are; This is the Law of Arms, the chance of War.

Yet we must observe, That when these Authors seem to justifie such acts of cruelty by the Right of War, they do not altogether free them from sin, but from being punishable as sins,* 1.125 as will appear by other places in the same Authors. It was well said of Tacitus, In pace, causas & merita spectari, ubi bellum ingruat innocentes ac noxios juxta cadere; Peace doth usually distinguish of Causes and Merits, (and accordingly dispenseth rewards and punish∣ments) but in War the nocent and innocent do fall alike. And in another place, speaking of a Common Trooper, who demanded of his Captains a Reward for killing his own Brother in the head of his Enemies Troops, he saith, Nec illis aut honorare eam caedem jus hominum, nec ulcisci, ratio belli permittebat; Neither would the Laws of humanity suffer them to reward so unnatural a murther, nor the Law of Arms permit them to punish it. For that which Se∣neca observes is very true;

* 1.126Quodcunque libuit facere, victori licet.

What e're he will, that may a Victor do.

And what he notes in his Epistles,* 1.127 Quae commissa capite luerent, tum quia paludati fuerunt, laudamus; What in another we punish with death, that in a Souldier under command we commend: wherewith accords that of S^t Cyprian,* 1.128 Homicidium cum admittunt singuli, crimen est, virtus vocatur cum publicè geritur; That which in a time of peace is a capital crime, in the time of War is accounted valour; but it is not the nature of their fact, but the exorbitancy of their cruelty, that renders Souldiers unpunishable: And a little after he adds, Consensere jura pecca∣tis, & coepit esse licitum quod publicum est; The Laws do connive at sin, which is therefore sometimes reputed innocence because licensed by publick authority. And in this sense it is true what Lactantius saith of the Romans,* 1.129 that they did Legitimè injurias inferre; Infest others lawfully: As that also of Lucan, Jusque datum sceleri, which we may translate in the words of David, Wickedness is practised as by a Law.

VI. All that are found among enemies are li∣able to the ef∣fects of War.

But this Right of licence or impunity in War extends it self very far, for it reacheth not only to such as are actually in Arms, nor unto such only as are Subjects to these Princes against whom the War is made, but unto all such as reside within their Terri∣tories or Dominions; as may appear by that form so often used in Livy, Hostis sit ille, quique intra praesidia sunt ejus; Let him, and all that live under his protection be held as ene∣mies.* 1.130 And no marvel, seeing that by all such we may be damnified, which in a War that is lasting and universal, is sufficient to justifie the licence here spoken of; otherwise than in Reprizals or Pignorations, which, as I have said, was at the first introduced after the manner of Taxes for the payment of publick debts. Wherefore it is not to be wonder∣ed at, if, as Baldus notes, This licence in War, be much greater than that in Pignorations: Nor is there any question, but that Strangers coming into the Enemies Territories after the War is proclaimed and began, may be persecuted as Enemies.

VII. Though they come before the War be∣gan.

But as for those that went thither before the War was proclaimed, it is thought fit by the Law of Nations, that they should have some time allowed them to depart thence with their Goods; for so we read of the Corcyraeans, That before they laid close siege to Epidamnum,* 1.131 they gave warning to all strangers to depart, or to be held as Enemies.

VIII. But natural Subjects every where, unless protected by another Prince.

But such as are true and natural Subjects, if we have respect only to their persons, they may in all places whatsoever be persecuted, because, as we have already shewed, when War is decreed and denounced, it is declared to be against a Prince or Nation, and the People thereof: So the Romans in their Decree against King Philip, did Will and Command that War should be proclaimed against him and the Macedonians under his Dominions. Now he that is an Enemy may by the Law of Nations be every where persecuted, according to that of Euripides;

Ʋbicunque prensum jura laedi hostem sinunt.

A Foe where ever found destroy'd may be.

And that of Marcianus, Renegadoes where ever they are met, may be killed as Enemies: And therefore, whether it be in their own Country, or in the Enemies, in a desart that belongs to none, or on the Sea, where ever it be, if found, they may lawfully be killed. But yet, that it is not lawful to kill them, or to spoil them in a Country that is in peace, this ariseth not from any Right that belongs properly to their persons, but from the Right of that Prince under whose Power and Protection they are. For all Civil Societies have a Right to Ordain, That no force or violence be offered against any in their Dominions, unless the differences be first examined in a judicial way; as we have already proved out of Euripides:

Si crimen istis aliquod hospitibus struis, Jus impetrabis: vi quidem hinc non abstrahes.

If charge thou can'st these Guests with great offence, Thou may'st have Right, but shalt not force them hence.

Where Laws flourish, and Courts of Justice are open, there every man is punished ac∣cording to his deserts; and then this promiscuous licence of injuring each other ceaseth, which was only granted amongst Enemies in times of War only. Whilst the War raged between the Romans and the Carthaginians, it hapned that seven of the Carthaginian Gallies rode in a Port belonging to Syphax, who at that time was in League with both Nations: At which time Scipio with two of the Roman Gallies was by storm driven into the same Harbour before the Carthaginians could weigh anchor. It had been law∣full for the Carthaginians to have taken or sunk them before they had entred the Port: But being entred into the Kings Chambers, they durst not assault them lest thereby they should have violated the League with Syphax. The like we read of the Venetians, who would not suffer the Grecians to injure the Turks in any Port belonging unto them.

IX. This Right ex∣tends to Wo∣men and In∣fants.

But to return to what we have in hand, how far this licence of Murther, Spoil, and Rapine, extends it self in the time of War will appear, in that Women and Infants are subject thereunto. I shall not hitherto refer the slaughter that the Israelites made of the Women and Children at Heshbon, Deut. 11.34. Nor that which they were commanded to do against the Canaanites, and their Associates, the Amalakites; whereof Josephus (speak¦ing of the Acts of Saul) writes thus, He proceeded even to the slaughter of Women and Chil∣dren, accounting nothing therein too cruel or inhumane: First, because they were Enemies; and Secondly, because it was done at the special command of God, whose Right over men is far greater and more unquestionable, than that which men claim to have over beasts, as we have elsewhere said. No, rather, that which comes nearer to testify the manners and customes of the Nations as to this, is that of the Psalmist,* 1.132 Blessed is he that taketh thy chil∣dren and casteth them against the stones: Agreeable to that of Homer,

—Illisa corpora terrae Infantum, saevus dum concutit omnia Mavors.

When dreadful War, whole Nations doth lay wast, Then Infants bodies 'gainst the Earth are dasht.

And that also which Severus out of the same Homer applied to the Britains,

—Nec qui latet abditus intra Viscera Matris adhuc, fugiet crudelia fata.

—Nor can the Babes unborn, Escape Wars rage, being from their Mothers torn.

The Thracians of old having taken the City Mycalessus put all to the Sword, both Wo∣men and Children, as Thucydides relates. So did the Macedonians when they took Thebes, as Arianus tells us. Thus did the Romans also when they had taken the City Ilurgis in Spain, destroy all without distinction of Age or Sex, as Appianus testifies. The like did Scipio when he took Numantia. The Emperour Julian having taken by storm the City Majo∣zamaltha, destroyed all, making no distinction of Age or Sex: Quicquid impetus reperit, po∣testas iratorum absumpsit; Whatsoever force found, was sacrificed by the Swords of the enraged. Germanicus Caesar is said in Tacitus to depopulate all the Villages of the Marsi, a people of Germany, with Fire and Sword, so that neither Sex nor Age could find pity. And the Emperour Titus when he conquered the Jews, exposed their Women and Children to be devoured by Beasts in their publick shews; and yet were neither of these two Princes e∣steemed

to be of a fierce and cruel nature, but were only carried away with the customes of those times: No marvel then, if old men did sometimes undergo the same fate, as Priamus did who was killed by Pyrrhus.

X. And to Cap∣tives.

Neither were Captives exempted from the rage of the Conquerours: when Elisha the Prophet had led the Syrians blindfold to the Gates of Samaria, as Josephus relates the sto∣ry, King Joram demanded of the Prophet whether he should kill them; but the Prophet answered, that it was not lawful for the King so to do, Solus enim Bello superatos hostes oc∣cidi fas est; For those Enemies only may be lawfully killed that are taken in War. Pyrrhus in Seneca according to the custome of the Nations then in use, pleads thus,

* 1.133Lex nulla capto parcit aut poenam impedit.

No Law from punishment doth slaves protect.

Neither doth this licence extend to Men only, but even to Women if taken in War, ac∣cording to that of Scylla, concerning a Woman taken Prisoner:

At Belli saltem captivam lege necâsses.

By th' Law of Arms, thy slave thou mightst have kill'd.

To the same purpose is that of Seneca before quoted to be understood; for it was spoken of Polyxena, who being taken Captive might have been slain: yet is the advice of Horace to be preferred,

Vendere cum possis captivum, occidere noli.

Kill not thy slave, in case thou canst him sell.

Wherein he takes it as granted, that kill him he might, though to sell him were better; hence it is,* 1.134 that they are called servants, because they are saved alive, whereas by the Law of Arms they might have been killed: thus were all the Captives taken in Epidamnum put to death by the Corcyraeans, as Thucydides relates; and seventy thousand Slavonians we read of that were put to the Sword by the Emperour Otto, and of five thousand Cap∣tives that were at once put to death by Hannibal.* 1.135 And Hirtius in his African War, brings in a Caesarean Captain giving thanks unto Scipio for sparing his life in these words, Tibi gratias ago, quod mihi vitam incolumitatemque belli jure capto polliceris; I thank thee noble Sci∣pio, for that being thy slave, thou art pleased to engage thy word for my life and safety. Nei∣ther is this licence of killing our Captives confined to any space of time, although by Mu∣nicipal Laws it be restrained in some places more, in some less.

XI. Yea, and to Suppliants.

No nor Suppliants as we are instructed by many examples in all Histories; as namely, by the example of Achilles in Homer, of Mago and Turnus in Virgil; which do therefore stand yet upon record, to justifie the like practice hereafter by the Right of War: For St. Augustine himself commending the Goths for sparing Suppliants,* 1.136 and such as fled unto Temples for protection, yet saith, That which by the Right of War they might do, they thought unlawful for them to do: Neither are they always received to mercy that beg it, witness the Grecians that sided with the Persians against Alexander, at that great Battel fought at the River Granicum.* 1.137 And the Uspenses in Tacitus, Who craving leave but to de∣part their City with their Bodies free, were rejected by the Conquerours, because it would have been thought cruelty to have killed them in cold blood after they had yielded themselves, and hard to keep a Guard upon so great a multitude, therefore they chose rather to let them perish by the Sword according to the Law of Arms. Observe here also the Right of War.

XII. Yea, and to such as yield without con∣ditions.

Neither do they always find mercy that surrender themselves without any condition at all, but even these are sometimes put to death, as the Princes of Pomeria were by the Ro∣mans, the Samnits by Sylla, the Numidians, yea, and Vercingentoriges himself by Caesar: Nay, it was almost the perpetual practice of the Roman Generals upon the dayes of their Triumph,* 1.138 to put to death all the Captains and other Commanders (whether they were taken Prisoners during the War, or had yielded themselves) as Cicero in forms us in his fifth Oration against Verres; which, both Livy and Tacitus confirm: Nay, the same Tacitus re∣cords it of Galba, That he caused the tenth Man to be killed of those, whom upon sub∣mission he had received to mercy. And Caecina upon the surrender of Aventicum, caused Julius Alpinus to be put to death, as being the principal instigator of the War; but the rest of the Citizens he left to, either the mercy, or the severity of Vitellius.

XIII. This right not to be referred to other causes.

It is the usual custome of Historians to ascribe the cause of this cruelty and outrage a∣gainst Captives, or Suppliants; either to the like cruelty done by them unto others, or to their obstinacy in resisting them: But these are rather pretences than just causes; for Re∣taliation (properly so called) is not to be executed, but upon the same persons that of∣fended (as hath been already said, where we discourst concerning the Communication of Punishments.) But contrariwise in War, this Right of Retaliation is often exercised on those, who were in no measure guilty of the crime, for which they are said to be punish∣ed. This custome is thus described by Diodorus Siculus, The chance of War being on both sides equal, neither party can be ignorant of this; that in case they be vanquished, what they in∣tended to do against their Enemies had they been Victors, that they must be contented to suffer from them. Thus did Philomelus the Phocensian General perswade his Enemies to refrain from a proud and insolent revenge, by threatning to exact the like in case the Victory fell on his side. But as to the other pretence which is usually pleaded, namely, an obstinate endeavour to defend their own party;* 1.139 it is so far from being punishable as a crime (as the Neapolitans alledged to Belisarius in Procopius) that according to the Ancient Roman Discipline, it was ever ac∣counted a capital crime to do otherwise, especially if we were engaged therein, either by some natural obligation, or by an honest and deliberate choice; for in these cases they seldome admitted of any excuse, were the fear or danger never so great,* 1.140 Praesidio decedere apud Romanos capitale est; To desert a Garrison, saith Livy, was ever accounted among the Ro∣mans a capital crime. Every man therefore may make use of this rigour and severity, so far as he sees it may conduce to his own advantage, and is therein justified before men, by that common right and licence of Nations, whereof we here treat.

XIV. It extends also to Hostages.

This right or licence doth sometimes extend it self to hostages; and that not only to those who voluntarily give themselves as Pledges for the performance of Articles agreed upon, but unto those also who are delivered up by others. Thus we read of two hundred and fifty hostages slain by the Thessalians, and of three hundred slain by the Romans;* 1.141 where also by the way we may observe, That sometimes Children are admitted as Hostages, as by the example of Simon the Maccabite we may learn; and sometimes Women, as by the Romans in the time of Porsenna, and by the Germans in Tacitus.

XV. To kill by poy∣son, unlawful.

As there are many things tolerated by the Law of Nations in this sense that we now speak of, which by the Law of Nature are prohibited; so are there many things forbidden by the former, which by the latter are tolerated. For if we respect the Law of Nature only, if a man have deserved to be put to death, it matters not much whether it be by the Sword or by Poyson: by the Law of Nature, I say, though otherwise it be far more noble so to in∣vade another mans life, as to give him an equal power to defend himself. But this is not due unto every man that hath deserved to dye. But by the Law of Nations, (if not of all, yet of the greater and better part of them) it is not lawful to take away the life, no not of an Enemy, by poyson; which Custom was introduced for a general good, lest dangers, which are too rife and frequent in War, should be beyond all measure multiplied. And very probable it is that this Law was first enacted by Kings and Emperours, whose lives, as they are principally guarded by Arms, so are they most easily endangered by poyson, were it not for the severity of the Laws, and the sear of infamy.* 1.142 This Livy calls a clande∣stine villany, speaking of Pyrrhus. And Claudian, concerning the design of Pyrrhus's Physician, who offered Fabritius to poyson him, calls it a detestable act,* 1.143 not fit to be spo∣ken; so doth Cicero, glancing at the same Story: which offer of the Physician, the Con∣suls not only rejected, but discovered unto Pyrrhus; not so much for his sake, as to prevent the reproach and scan••al that might ensue to themselves, lest it should be said of them, That whom they could not conquer by true valour, they had by treachery destroyed.* 1.144 Or as Aulus Gellius recites the Epistle of the Consuls out of Claudius Quadrigarius, Communis ex∣empli & fidei ergo, visum est; We think it not fit for common examples, and our own honour's sake, to admit of so great a wickedness. For as Valerius Maximus well observes, Armis Bella,* 1.145 non Venenis geri debent; Wars should be waged by Arms, and not by Poyson. Insomuch that when the Prince of the Catti made offer to poyson Arminius, Tiberius rejected it, therein equal∣ling himself in honour to the old Roman Emperours. They therefore that hold it lawful to destroy an Enemy by poyson, as Baldus by the authority of Vegetius did, do regard the mere Law of Nature, but overlook that Law which is established by the voluntary consent of Nations.

XVI. As also by im∣poysoning Wa∣ters or Wea∣pons.

Somewhat different from this manner of poysoning (because it hath something of force in it) is the anointing the Heads of Spears with poyson, thereby to enforce death upon a double account; which, as Ovid records, was much in use among the Getae. The like testimony doth Pliny give of the Scythians, For they anointed their Arrows, saith he, with poison, compounded of the putrified Gore of Vipers, and humane bloud: immedicabile id scelus;* 1.146 a mischief incurable, because it made every slight hurt mortal. Lucan testifies the same of the

Parthians; so doth Silius of some of the Africans; and Claudian particularly of the Ethiopi∣ans. It was observed, that in India Alexander's Soldiers being wounded by these impoysoned Arrows dyed immediately. Yet was this also contrary to the Law of Nations; though not of all,* 1.147 yet of these of Europe, and of such others as are civilized like them; amongst whom the use of poyson was never by any Law allowed, although among Pagans and Infidels it hath sometimes been usurped. Therefore in Silius's account this was but ferrum infamare veneno, the shame and reproach of valour. And therefore Ilus Mermerides in Homer denied poyson to Ʋlysses's Spears, for fear of a revenge from the Gods Immortal. So also the impoyson∣ing of Springs, Florus reckons to be unlawful, being repugnant not only to the Constitu∣tions of men, but to the Laws of God. Where we may note, (as we have already else∣where) That prophane Authours do usually ascribe the Laws of Nations unto the Gods. Nor will it seem strange that there should be such a tacite agreement amongst Nations, for the lessening of the dangers that attend the Wars, when we find it anciently covenanted between the Chalcidenses and the Eretrienses,* 1.148 That during the War between them, it should not be lawful to cast or to dart any thing.

XVII. But not other∣wise to corrupt Waters.

But it is otherwise where waters are (without poyson) so corrupted, that they can∣not be drunk; as by throwing Carrion into them, and dead Bodies, or asbestus, which Belisarius made use of in the Siege of Auximum; or Lime, which the Turks did at Dibibras, or such like.* 1.149 For this was approved of by Solon, the Amphictyones, and others, against the Barbarians; and as Oppianus records, was usually done in his Age: it being no more than if the Current of a River, or the Veins of Water that feed a Well, should be cut off or turned some other way, which by the Law of Nature and the general consent of Nations are held lawful.

XVIII. Whether it be against the Law of Nations to use Murthe∣rers.

But whether the Law of Nations do justifie the killing of an Enemy privately, that is, by sending one purposely to kill him in his own Quarters, is often questioned. For the re∣solving of which doubt, we must distinguish of the persons sent: for in case he be such a one as hath any ways given his faith, either expresly or tacitely, unto him whose life he attempts; as if he be a Subject that shall be hired to kill his Sovereign, a Vassal his Lord, or a Souldier his General, or if he be received by him in protection as a Suppliant, a Stran∣ger, or a Renegado; yea if the person sent owe any faith to him whom he is sent to kill; then the Law of Nations doth not only condemn the person that is the instrument for his treachery and perfidiousness, but those also that make use of him. For although in other matters he that makes use of wicked instruments, though against an enemy, may be found guilty before God; yet is he not so before man. For he is not thereby said to violate the Law of Nations, because in this Case, Mores Leges perduxerunt in potestatem suam; Cu∣stom hath prevailed above the Laws. Et decipere, pro moribus temporum, prudentia est: And to deceive (as Pliny saith) if it accord with the manners and customs of the Age we live in,* 1.150 is not a crime, but a Vertue; no knavery, but commendable policy. Yet doth not this cu∣stom extend it self so far as to the killing of an enemy: For he that shall make use of ano∣ther mans treachery in such a case, doth not only sin against the Law of Nature, but of Nations.* 1.151 This is plain by what Alexander wrote to Darius, Impia Bella suscipitis, & cum habeatis Arma, licitamini hostium capita; It is an impious War that ye wage against me; for having Weapons to fight, ye chuse rather to purchase with money the lives of your enemies. And presently after he complains,* 1.152 That they did not observe the Law of Armes. And in a∣nother place, I ought to persecute him even unto death, not as an open Enemy, but as a secret Murtherer.* 1.153 Hither we may refer that of Livy concerning Perseus, of whom he com∣plains, That he waged not a just and open war with a mind becoming a Prince, but that he used all manner of base and clandestine ways to destroy his Enemies, like a Thief or a Poysoner. All which,* 1.154 how odious they are to the Gods themselves, would at length be seen by the event of his Fortunes. Agreeable hereunto is that of Valerius Maximus concerning the murder of Viriatus,* 1.155 which gave occasion to a double accusation of perfidiousness, the one by his friends, by whose hands he was killed; the other in Quintus Servitius Caepio the Consul, who by encouraging them to do it by his promise of impunity, became himself the Authour of the fact, and did there∣fore justly lose the glory of the Victory. For Victoriam non meruit, sed emit; He deserves not the honour of a Triumph that buys the Victory. Wherefore when the Murtherers demanded the reward promised them by the Consul Caepio, it was answered, That it was never thought a meritorious act by the Romans for Souldiers to kill their General, as Eutropius testifies. Now the reason why the Law of Nations,* 1.156 that allows us to make use of the treachery of others in all other cases, doth not allow of it in this case, is the very same that was before given in the case of poyson; namely, To restrain the dangers that attended Kings and Princes. When one told Eumenes,* 1.157 That his Enemies had hired one to kill him, He would not believe that any General or inferior Captain would give so ill an example against himself. And in another place the same Justine declares,* 1.158 That when Bessus had killed King Darius, it was not to be endured for examples sake; because it was the common cause of all Kings. For as Seneca well observes,

Regi tuenda est maxime Regum salus.

A Kings chief care is the defence of Kings.

In a solemn War, and amongst those who have a right to denounce a solemn War, it is not lawful by the Law of Nations privately to kill an Enemy; but where there is no solemn War, it is by the same Law of Nations accounted lawful, that is, unpunishable.* 1.159 Tacitus denies peremptorily, That the Plot that was laid against the life of Gannascus, was at all,* 1.160 degenerous; because he was a Traitor. And Curtius was of opinion, That the guilt of Bessus in killing Darius, did make the treachery of Spitamenes appear the less odious; for that nothing could be thought wicked that was done against a Regicide. So likewise Ammianus concerning Florentius and Barchalba, who had surprized Procopius the Traitor, Si Princi∣pem legitimum prodidissent, vel ipsa Justitia jure caesos pronunciaret; si rebellem & oppugnato∣rem internae quietis, ut ferebatur, amplas ei memorabilis facti opportuerat deferri mercedes: If it had been their lawful Sovereign that they had betrayed, the Laws had justly sentenced them to death; but if he were a Rebel, or a Disturber of the peace of his own Country, (as was said) ye ought to give him a reward worthy of so memorable a fact. Thus is Artabanes highly com∣mended in Procopius for killing Gontharides, as we may read at the latter end of the second of his Vandal History. So perfidiousness or treachery against Thieves and Pyrates, though it be not altogether blameless; yet is it not by the Law of Nations punishable, because com∣mitted against such as are Enemies to humane Society.

But what if they, that are sent to kill an enemy privately, do owe him no faith,* 1.161 nor are any ways obliged unto him? Surely then by the Law of Nations it is lawful for them to kill him if they can, even in his own Quarters. Thus Pipin, Father to Charles the Great of France, attended with one only of his Guard, passed the Rhine, and killed his enemy e∣ven in his own Chamber. The like was attempted by one Theodotus an Etolian upon Pto∣lomy King of Egypt, which Polybius commends as no unmanly attempt. Such also was that Heroick enterprize of Q. Mutius Scaevola, who was in Plutarch's esteem. A man accom∣plished with all vertuous endowments, which attempt he thus defends, Hostes hostem occidere volui; I being an Enemy would have killed an Enemy.* 1.162 Porsenna himself acknowledged this to be an act of true valour. Valerius Maximus commends it for a brave and gallant resolution. So doth Cicero in his Oration for Publius Sextus; because to kill an Enemy wheresoever we find him, is lawful both by the Laws of Nature and Nations; neither doth it make any difference, how many they are that either thus act or suffer. Six hundred Lacedemonians we read of that with Leonides their King, marched directly through the Camp of five hundred thousand of their Enemies, even unto the Kings Pavilion;* 1.163 the same may be done by fewer. A reward was promised by the Emperour Valens to him that should bring in the head of any Scythian, whereupon a Peace immediately ensued. They were not many that circumvented Marcellus and his fellow Consul and slew them,* 1.164 and that had likely to have killed Petilius Cerealis even in his Bed. Ambrose highly commends Eleazer, who seeing a mighty Elephant higher than all the rest, assaulted him, supposing that he that sate upon him had been the King. Not much unlike was that attempt that Theodosius made upon Eugenius, recorded by Zozimus. Nor that of the ten Persians against the Emperour Julian attested by Ammianus. Neither are they only that make these attempts excusable by the Law of Nations, but they also that imploy them. Those Roman Senators that were so re∣nowned for their Wars,* 1.165 were reputed the Authors of that gallant attempt made by Scae∣vola. Neither is it to the purpose to object, that such men being taken are put to exqui∣site torments; for this happens, not for that they violate the Law of Nations, but be∣cause by the Law of Nations, every thing is lawful that is done against an Enemy; and all Conquerours are more or less severe, according as it shall conduce to their future ad∣vantage, for thus are spies dealt withal; yet notwithstanding, it is held lawful by the general consent of Nations, to send out such, as Moses did Joshua into the land of Caanan. It is the custom of all Nations to kill spies, saith Appian, and that justly sometimes by such as have apparently a just Cause to make War; but by others, it is only lawful by that licence which the Law of Arms sometimes gives: But if there be any that will not make use of such instruments, though offered, this proceeds rather from the Magnanimity, and the confidence of him that makes the War in his own strength, than from an opinion he hath that by the Law of Nations it is unjust.

XIX. Whether ra∣vishment be in such a War lawful.

The ravishing of Women is by the Law of Nations sometimes permitted in War, and sometimes forbidden. They that permit it do respect only the injury done to the body of an Enemy, which by the Law of Arms they think ought to be subject to the Will of the Conquerour: But others much better, look not unto the sole injury done unto the body of an Enemy, but to the very unbridled act of Lust, which conduceth nothing ei∣ther to the security of the Conquerour, or to the punishment of the Enemy; and there∣fore

should be no more unpunishable in War, than in Peace, and this is the Law if not of all Nations, yet at least of the better and more civilized amongst them. Marcellus be∣fore he took Syracuse took special care of the preservation of the Chastity,* 1.166 even of his Enemies. And Scipio (as Livy testifies) told his Souldiers, That it much concerned his own honour,* 1.167 and the honour of the people of Rome, That nothing that was any where, (that is a∣mong such Nations as were civilized) reputed sacred, should be by them profaned or violated. Diodorus Siculus complains against Agathocles his Souldiers, That they abstained not from that foul sin of ravishment. The like doth Appian in his Mithridatick War, concerning the Captives taken in Chius, That both Women and Children were barbarously ravished by those that led them away prisoners. Aelian speaking of the insolencies of the Sicyonians, being Conquerours in ravishing the Pellenaean Virgins, and Matrons crys out thus, These by the Gods of Greece are such acts of cruelty and inhumanity, as were never to my remem∣brance, allowed of by the very Barbarians. And surely it is but reasonable, that this should be generally observed among the Christians, not only as a part of our Military Discipline, but as a part of the Law of Nations: namely, That he that shall forcibly abuse a Woman, though in the War, shall every where be punishable. Belisarius always observed this Rule: So did Totilas when he had taken Cumae,* 1.168 and at Rome also, as Procopius leaves it upon Re∣cord. Neither did the Hebrew Law suffer this wickedness to go unpunished, as may be collected from that part of it, which so provides for a Virgin taken Captive, That he that takes her might marry her, and if afterwards he liked her not, he might dismiss her, but not sell her: Thou shalt not take money for her, because thou hast humbled her, saith the Law,* 1.169 Deut. 21.12. Upon which words one of the Hebrew Doctors thus glos∣seth, God would have the Camp of Israel to be holy, and not like the Camp of the Gentiles, polluted with Whoredom,* 1.170 and such like abominations. Josephus likewise highly extolls the Jewish Law for its care of prisoners taken in the War, to preserve them from shame and reproach, especially of women. Arrianus highly commends that fact of Alexander, who being taken with Roxana's beauty, refused to abuse her as his Captive, but did her the honour to marry her: So doth Plutarch also, He disdained to force her as a Conquerour, but wedded her as a Philosopher. The same Plutarch relates it of one Torquatus, That he was banished by the Romans into the Isle of Corsica, for forcing a Virgin whom he had taken Captive: But Cosroes King of Persia was more severe, for he caused one that had ravished a young Maid to be Crucified; as Procopius informs us in the second of his Persian Wars.

CHAP. V. Of Spoil and Rapine committed in War.

• I. That the Goods of an Enemy may be spoiled or taken away.
• II. Even those that are sacred, which how to be understood.
• III. Yea, and those that are Religious, where some caution is added.
• IV. How far forth fraud may be used in this case.

I. That the Ene∣mies Goods may be wasted and taken a∣way.

CIcero in the third of his Offices gives this Rule, Non est contra naturam spoliare eum, quem honestum est necare; It is no whit repugnant to the Law of Nature, to spoil and plunder him, whom it is lawfull to kill. It is not then to be wondered at, That the Law of Nations permits the spoil and devastation of an Enemies Land and Goods, seeing that it permits him to be killed. Polybius tells us* 1.171, That by the Right of War, It is lawfull either to take away or to destroy the Forts, Ports, Cities, Subjects, Ships, Corn, Cattle, and such like things of an Enemy. And in Livy we read, That there are certain Rights in War, which as we may safely do unto an Enemy, so we must with patience suffer from them; such are the burning of our Corn, the pulling down of our Houses, the taking away of our Men and Beasts. He that is vers't in Histories, will find almost every page filled with these dreadfull effects of War, the demolishing of Cities, the razing and throwing down their Walls, the spoiling and laying wast of the Enemies Countrey with Fire and Sword; yea, and we may observe, That all these are lawfull to be done, though the Enemy do voluntarily surrender themselves. The Townsmen, saith Tacitus, set open their Gates of their own accord, and submitted themselves, and all they had to the Romans, whereby they saved themselves: But the Romans burnt the City Artaxata and laid it level with the ground, be∣cause they could neither keep it with safety, nor leave it with honour.

II. Though Con∣secrated.

Neither are things sacred, that is, consecrated to any one or more Gods, exempted from these Out-rages of War, meerly by the Law of Nations, setting aside the consideration of other Duties: for, Cum loca capta sunt ab hostibus, omnia desinunt esse sacra; As soon as any place is taken from the Enemy, every thing in it ceaseth to be sacred, saith Pomponius. And so saith Cicero, Sacra Syracusarum victoria profana fecerat, The victory made all the sacred things in Syracuse profane. Tertullian in his Apologeticks confesseth, That War and Victory cannot consist without the subversion of Cities; which also cannot happen without some injury done to their tutelar Gods. For Temples undergo the same fate that their Cities do, and their Priests have an equal share in publick Calamities as other Citizens; neither do their consecrated vessels escape better than their profane. Tot Sacrilegia Romanorum, quot Tro∣phaea; tot de diis, quot de gentibus triumphi: Look how many Victories the Romans had, so many Sacriledges they committed; and as often as they conquered their Enemies, they spoil∣ed and rifled their Gods. The cause whereof is this, because those things which are said to be sacred, are not in truth exempted from humane uses, but are made publick, as Marsilius Patavinus observes in his Defence of Peace: But they are called Sacred,* 1.172 from the end whereunto they are destin'd, which appears by this, That when any Peo∣ple give themselves up to another People, or to any King, they deliver up that also which is called Sacred; as is manifest by the usual form in Livy, We the People of Cam∣pania, do deliver up into your Power and Possession, O Fathers Conscript, our City Capua, our Fields, the Temples of our Gods, together with all that we have whether Humane or Divine: (the like we read in Plautus his Amphitryo.) And therefore as Ʋlpian concludes, There is a publick Right even in things that are sacred. And Pansanias tells us, That it was a Custom common as well with the Grecians as Barbarians, that things Sacred should be disposed of, at the Will and Pleasure of the Conquerour. So when Troy was taken, the Image of Jupiter Hercaeus was given to Sthenelus, and many other Examples he there brings. And Thucydides confirms this, saying, That it was a Law among the Graecians,* 1.173 That look whose the Empire was of any City or Countrey, whether great or small, theirs also were the Temples: Wherewith accords that of Tacitus, where he saith,* 1.174 That all the Ceremonies, Temples and Images, that were in any of the Cities of Italy, were at the dis∣pose, and under the Jurisdiction of the Romans. Wherefore it is plain, That the Peo∣ple themselves changing their minds, may make any thing profane that was holy; and this is not obscurely proved by those great Lawyers Paulus and Venulejus. We may also observe, That in times of War, and in cases of necessity, those things which have been consecrated, have by those that consecrated them been converted to uses of War; as was done by the Syracusians in the time of Timoleon, as Plutarch testifies. So the Chii raised the tribute imposed on them by Mithridates by the sale of the consecrated

Vessels of the Temple,* 1.175 as Appian testifies. Pliny speaking of Portius Cato tells us, That he suffered the consecrated Trees and Groves to be cut down, having first offered sacrifices. Sulla in his War against Mithridates robb'd the Temple at Delphos of those rich Presents, sent thither by Olympia and Epidaurus, as it is storied in Plutarch; the just price whereof he afterwards restored, as Diodorus informs us. Augustus we read borrowed all the Treasures of the Temple in a time of necessity, as Appian writes. And Agapetus pawn∣ed all the Consecrated Vessels, as Cassiodore relates. The Emperour Heraclius in his great necessity, turned all the Vessels of the Church into Money, the price whereof he after∣wards restored, as Theophanes writes. The like was done by Pericles, but with a promise of restitution; by Mago in Spain, by the Romans in their War against Mithridates, by Sul∣la, Pompey, Caesar, and many others. There is nothing so Sacred, so Holy, as those things that are Consecrated to the Worship of the Gods, saith Tiberius Gracchus in Plutarch: And yet there is none that can hinder the people from using them, or removing them as they please. Our Churches,* 1.176 saith Seneca, are sometimes spoiled for the defence of the pubiick, and what was given to the Gods, we often take to pay our Souldiers. Whence Servius upon Virgil tells us, That whatsoever is given to the Gods is so long holy, as it continues unprofaned. And therefore Trebatius the Lawyer in Caesars time saith, That is said to be profane, which is taken from an Holy and Religious use, and converted to the use of private men. Thus Germanicus ha∣ving conquered the Marsians destroyed all things both Sacred and Profane, levelling with the ground that Temple so famous among those Nations called Tanfanae,* 1.177 as Ta∣citus relates it. It is acknowledged by Pausanias, That whatsoever was Consecrated to the Gods,* 1.178 was lawful prize to the Conquerour. And Cicero speaking of Publius Ser∣vilius saith, That the Images, and other Ornaments of the Enemies Cities, which by force and valour he had conquered, He by the Law of Arms, and by the Right of Conquest took and carried away. So Plutarch speaking of Fabius, saith, That the Image of Hercules which he took at Tarentum, he sent to be placed in the Capitol at Rome, leaving the rest of their Gods as enraged against the Tarentines. So also Livy concerning the Ornaments taken out of the Temples at Syracuse by Marcellus, and brought to Rome, saith, That they were Parta Jure Belli, Got by the Right of War. Thus Fulvius also in his Oration, calls the spoilings of Temples, the Rights of War. The like we read in Salust of Cato, who recounting the miseries that usually befall the Conquered, brings in this amongst others, the robbing of their Churches. But yet in case it be believed, That there is any thing of a Deity in this or that Image, then to break it, to spoil or deface it, is in them that are of that perswasion, great impiety. And upon this presumption, that both Parties agree in this belief, it is, That they that commit such robberies, are so of∣ten branded with impiety, and accused for violating the Law of Nations. But in case the Enemy be of another perswasion, then it is otherwise. As to the Jews it was not only permitted but commanded,* 1.179 That they should utterly abolish the Idols of the Gen∣tiles, but that they should not assume them to themselves: the reason was, to instill in∣to them the greater detestation of their superstitions, by begetting this conceit in them, That the very touching of them was not without pollution; and not that what was con∣secrated to strange Gods was to be spared,* 1.180 as Josephus seems to expound it, therein doubtless flattering the Romans no less, than in the Exposition of another Precept, namely, of not naming the Gods of the Gentiles, which he so interprets, as if it were therefore prohibited to name them lest they should reproach them: whereas their Law did expresly forbid to name them with any Honour or Reverence, nay, without some shew of detestation. For the Hebrews most assuredly knew, that in those Images there was nothing sacred, neither Angel, nor Spirit, nor any virtue of the Stars, as the Gen∣tiles dreamed, unless they were such Evil Spirits as are usually destructive to Mankind. And therefore as Tacitus rightly observed, in his description of the Manners and Insti∣tutes of the Jews, Profana illis omnia, quae apud nos sacra; All things that are holy to us, are unto them profane. It is no wonder then, that we read of so many Idol Temples burnt by the Macchabees,* 1.181 1 Mac. 5. and 10.

Xerxes when he demolish'd all the Idols of the Grecians, did nothing contrary to the Law of Nations, though all their Historians did bitterly inveigh against him. For the Persians could not believe, that there was any Divinity in them, because they adore the Sun only as God, and the fire as a spark or ray of the Deity; and therefore as Diogenes Laertius tells us, did their Magi abhor Images. By the Hebrew Law, None must en∣ter into the Temple but the Priests only;* 1.182 yet Pompey the Great entred into it by the Right

of a Conquerour, as Tacitus thought: Or, as S^t Augustine relates it,* 1.183 Non devotione sup∣plicis, sed jure Victoris; Not as a Suppliant, but as a Victor. He did well to spare the Temple, and to restrain his Souldiers from the pillage of it, though, as Cicero wisely conjectured, it was more out of shame, and to avoid scandal, than out of any true pie∣ty; but he did ill in entring thereinto in contempt of the True God, for which the Pro∣phets did so bitterly inveigh against the Chaldeans,* 1.184 and for which cause it was so or∣dered by the Divine Providence, That Pompey should afterward be killed at Cassium a Promontory in Aegypt, as it were, in the sight of those Jews, whose Temple he had so profaned. But yet, if we regard the Opinion of the Romans, there was nothing done by Pompey that was contrary to the Law of Nations. So when Josephus had decla∣red the destruction of the same Temple by Titus, he likewise adds, That it was done by the Right of War.

III. Yea, and things that are Religious.

What hath been said of things Sacred, may also be said of things Religious. For these are not such as belong to the dead, but to the living, whether of some People, or of some Families: Wherefore as Pomponius well observes, as places being taken by the Enemy, though holy; so whatsoever is Religious in those places ceaseth to be so after the victory. Sepulchra hostium religiosa nobis non sunt, ideoque lapides inde sublatos in quem∣libet usum convertere possumus; The Sepulchres of our Enemies are not unto us Religious, saith Paulus the Lawyer; and therefore we may take away the stones, and convert them to what use we please: Which notwithstanding must be understood so,* 1.185 that no violence be offered to the bodies of the dead, which by custom is admitted among the Laws of Nations.

IV. And that not only by force but by fraud.

This also we must here repeat, That the Goods of our Enemies may be taken away from them, not only by plain force, but even by fraud also, so it be without perfidi∣ousness; nay, we may by the Law of Nations be permitted to excite the treachery of others; (that is to say) the said Law of Nations begins so to connive at such petty and or∣dinary slips, as the Civil Law doth at whoredom, and griping usury.

CHAP. VI. Of the Right to things taken in War

• I. What the Law of Nature is, concerning things gained by War.
• II. What the Law of Nations ordains.
• III. When things moveable are said to be taken by the Law of Nations.
• IV. When Lands are said to be acquired.
• V. Things being not the Enemies, are not acqui∣red by War.
• VI. What the Law of Nations determines concerning goods taken in an Enemies Ship:
• VII. By that Law what we get from Enemies, though by them taken from others, is law∣ful prize.
• VIII. That it is not altogether true, that things taken from an Enemy, are theirs that take them.
• IX. That naturally, both possession and domi∣nion may be acquired by another.
• X. The distinction of publick and private acts done in War.
• XI. That Land may be gained, either to the people, or to him that maintains the War.
• XII. That things moving themselves or move∣able, being taken by a private act, become any mans that takes them:
• XIII. Ʋnless the Civil Law do otherwise de∣termine.
• XIV. That things taken by a publick act, are either the peoples, or his who maintains the War.
• XV. Yet in such things somewhat is usually left to the Will of the General:
• XVI. Who either adjudgeth them to the publick treasury:
• XVII. Or divides it among the Souldiers; and how:
• XVIII. Or suffers it to be pillaged by the Soul∣diers:
• XIX. Or gives it unto others:
• XX. Or dividing the spoil into parts, disposeth of some, one way, and some another, and how.
• XXI. Sometimes the State is defrauded of the spoil.
• XXII. That somewhat of this common Right may be altered, either by some Law, or some act of the will.
• XXIII. So some part of it may be given to our Associates:
• XXIV. Sometimes also to subjects; this illu∣strated by examples.
• XXV. What use may be made of what hath been here said.
• XXVI. Whether things taken without the Ter∣ritories of both parties engaged in War, be by the Right of War lawfully acquired.
• XXVII. This Right, whereof we have spoken, how proper to a solemn War.

I. What the Law of nature de∣crees concern∣ing things gain∣ed by War.

BEsides the licence that a just War gives to commit such acts against men, whereof we have treated hitherto; there is also another effect, which by the Law of Na∣tions is proper to a solemn War. And indeed, even by the Law of Nature, those things may be acquired by a just War, which are, either equivalent to that* 1.186, which though due, cannot otherwise be obtained; or which causes them to suffer who have done wrong, so as it exceeds not the bounds of a just punishment. By vertue of this Right of acquiring things by a just War, Abraham offered unto God the tenth of the spoil he got from the five Kings† 1.187, as the Author to the Hebrews seems to expound the story* 1.188. So also did the Grecians, the Carthaginians, and the Romans unto their Gods; as to Apollo, to Hercules, to Jupiter Feretrius, and others. The Patriarch Jacob leaving to Joseph an e∣special Legacy above his Brethren,* 1.189 saith, Lo I give thee one part above thy Brothers, which I took from the Amorites with my Sword and with my Bow: where the word, cepi, I took, seems to be Prophetically spoken for, certo capiam, I shall surely take, (for so the Chaldee Paraphrast expounds it, as if it had already been done by Jacobs Prayers to God, who by his special favour preserved Sichem for Jacob and his Posterity:) Where note also, that that is attributed unto Jacob which was done afterwards by his Posterity, who were called by his name, as if he and they were but one and the same person; which place is better thus expounded, than to wrest it (as the Hebrews do) to the spoil taken from the Siche∣mites, which was long before done by the Sons of Jacob. For that, as being somewhat per∣fidiously done, the old Patriarch did conscienciously disclaim, as may be yet seen upon re∣cord, Gen. 34.30. and Gen. 49.6. Now that this Right, which Abraham and others had unto the spoils taken in a just War, was approved of by God, so long as it was limited within the natural bounds prescribed, will appear, not by this only, but by other the like places of the Scripture. God in the Law which he gives, Deut. 20.14. concerning that City that should refuse to surrender, but was afterwards taken by the Sword, or∣ders thus, Thou shalt take the spoil of it to thy self, and thou shalt enjoy the prey of thine Ene∣mies which the Lord hath given thee.* 1.190 Again, The Rubenites, the Gadites, and a part of the Tribe of Manasses, are said to have conquered the Itureans, and their Neighbours, and to have taken much spoil from them; this being given as the reason, because in the fight they called

upon God, and he was propitious unto them. The like is said of that good King Asa, who be∣ing provoked by an unjust War made against him by the Aethiopians, and calling upon God, obtained the Victory, and by it much spoil, 2 Chron. 14.13. Which is the more notable, be∣cause that War was not undertaken by any special command from God, but only out of common Right. Joshua also pursuing the same Rubenites, Gadites, and part of the Ma∣nassites in their prosperous successes, saith, Divide the spoil of your Enemies with your Bre∣thren, Josh. 22.8. And when David sent to the Elders of Israel the spoil taken from the Amalekites, he gave this honourable Character of it,* 1.191 That it was a present sent them out of the spoil of the Enemies of the Lord. And no marvel; for, as Seneca observes, To enrich any man with the spoils of an Enemy is honourable. There are also certain Divine Laws extant concerning the dividing of such spoils, as Numb. 31.27. And Philo the Jew reckons it among the Cur∣ses of the Law, That their fields should be reaped by their Enemies, whereby must necessarily ensue, Famine to themselves and Plenty to their Enemies: Whereunto we may add, That God gave the spoil of Tyre to Nebuchadnezor for the pay of his Army, Ezech. 29.19, 20. be∣cause that by him God punished the Pride of the Tyrians for insulting over Jerusalem, Ezech. 26.2.

II. What the Law of Nations.

Moreover by the Law of Nations, not only he that makes War for a just cause, but eve∣ry man in a solemn War, is without either end or measure owner of whatsoever he can take from an Enemy; namely, in that sense, that both he, and whosoever claims from him are to be defended in their possessions of the things so gained by all Nations: which, ac∣cording to the external effects thereof may be called Dominion. This, saith Xenophon, is an everlasting Law with all men, that a City being taken by force, all the goods and riches are the Conquerours. Plato likewise was of the same opinion, All that was the Conquereds,* 1.192 become after the Victory, the Conquerours. And elswhere amongst divers kinds of natural ac∣quisitions, he placeth this also which he calls sometimes Polemical, sometimes Predatory, and sometimes Certatory: Therein agreeing with Xenophon, who brings in Socrates by divers interrogations drawing Euthydemus to this confession, That it was not at all times unjust to spoil and to destroy; as for example, when done against an Enemy. Aristotle in the first of his Politicks, saith, That the Law of Nations, as by an universal agreement had or∣dained, that whatsoever is conquered from an Enemy by War becomes immediately the Conque∣rours. To the like purpose is that of Antiphanes, We ought to wish our Enemies abundance of riches without valour; for so those riches will quickly find other Masters, not those that possess them, but those that can conquer them. For as Plutarch observes in the life of Alexander, What was the vanquisheds, both is, amd ought to be accounted the Conquerours.* 1.193 And elsewhere the same Plutarch, The goods of those that are by War overcome, are proposed as the reward of the victory; which are the very words of Xenophon. What is gained by Arms, saith Diodorus, or got by the right of War, ought not easily to be lost. Thus Philip in his Epistle to the A∣thenians, saith, All of us possess Cities, which were either left us by our Ancestors, or being subdued became ours by the right of War. Thus Aeschines also, If by making War against us, thou hadst subdued our City, thou mightest lawfully have possest it by the Law of Arms. Mar∣cellus in Livy justifies himself in taking the spoil of Syracuse by the Right of conquest. And the Goths in Agathias, do by the same Law, justifie King Theudorick who had first conquered Odoazer, saying, Quae ejus fuerant omnia tenuit jure belli; Whatsoever Odoazer had, Theudorick possest by the right of War. Thus the Roman Embassadors told Philip con∣cerning the City of Thrace and some others, That if he had taken those Cities by War, they had been his by the Law of Arms, as being the reward of his victory. And thus Massanissa pleads, saying, The land that his Father conquered by War from the Cartha∣ginians, he held by the Law of Nations. So also Mithridates in Justine saith,* 1.194 That to please the Romans he had withdrawn his Son out of Cappadocia, which as a Conquerour he was rightly possest of by the Law of Nations.* 1.195 Cicero tells us that the City Mitylene became the Romans by the Right of War and by Conquest. And in another place he tells us, That propriety in some things may be gained either by preoccupancy, or by War, as in those things that are gained by Victory. Of the same mind was Dion Cassius, All that was the Conquered's immediately becomes the Conquerours: Quae ex hostibus capiuntur jure genti∣nus statim capientium fiunt; Whatsoever, saith Cajus the Lawyer, is taken from an Enemy by the Law of Nations, immediately is made his that takes it. And this kind of acquisition The∣ophilus calls a natural possession. So likewise Aristotle,* 1.196 because it hath respect to no other cause than the bare fact it self; from whence ariseth a kind of natural Right, as the Dominion of all things at first began by Preoccupancy: an impression whereof, we have yet remaining in such Creatures as are naturally wild, whether they live on the Earth, in the Sea, or in the Air, which for the most part are theirs that first take them. As those things also which are taken in War: Besides those things are presumed to be taken from an Enemy, that are taken from the Subjects of an Enemy:* 1.197 As Dercyllides in Xenophon argues, since Pharnabazus was an Enemy to the Lacedemonians, and Mania subject to Pharnabazus, therefore were the goods of Mania lawful prize by the Law of Nations.

III. When movea∣ble Goods are said to be ta∣ken.

Moreover, by the Law of Nations things are then said to be taken in War, when they are so detained from us that we are deprived of any probable hopes to recover them, and are no longer able to pursue them; as Pomponius determines the like Question. And this, in things moveable, is to be presumed as soon as they are carried into the Enemies Garri∣sons. A thing may be said to be lost in the same manner as it is said to return after it hath been lost; but may be said to return as soon as it comes within the Bounds of the Empire from whence it was taken, that is, as soon as it comes within our Garrisons. Nay, Paulus the Lawyer doth plainly averr that man to be taken that is carried out of our Bounds. And Pom∣ponius declares that man to be taken in War whom our Enemy, having apprehended from out of our Garrisons, had led into their own. For until he be secured within their Garrisons, he remains a Citizen or Subject of ours. Now by this Law of Nations there is the same reason for Goods as there is for Persons, whereby we way easily conclude, That in some places things taken in War are presently said to be his, or theirs, that take them, that is, up∣on this condition, That they continue in their possession for such a time. Whence it seems to follow, That at Sea, Ships and other Goods are then said to be taken when they are car∣ried into our Enemies Harbours, or to such a place where their whole Navy rides; for then their remains no hopes of recovery. But by a later Law of Nations, especially of these of Europe, it is thus judged, namely, If the things taken continue in the possession of the Enemy twenty four hours, then are they accounted for lost.

IV. When Lands.

But it is not so with Lands. For they are not said to be taken as soon as the enemy sets down upon them. For though it be true that that part of the Land which an enemy with a strong Army encamps upon, is by them for the present possest, as Celsus observes; yet is it not every possession that is sufficient to alienate the Title of Land, but such a one as is firm and lasting. The Romans were so far from thinking that part of their Land lost whereon Hannibal encamped, that at that very time they sold it for as much as it would have given before. But that Land only is said to be lost that is so immured or secured with Walls, Forts, Rampires, and such like Muniments; that unless the enemy that holds them can be driven away, there can be no possible access unto it by the former Owners. And this derivation of the word Territory, which Siculus Flaccus gives, namely, A terren∣dis hostibus, From deterring the enemy from approaching unto it, seems to be as probable as either that assigned by Varro, à terendo, from wearing; or that of Frontinus, From the soil or earth; or that of Pomponius the Lawyer, From the power that the Magistrate of the place hath to af∣fright all persons within those bounds by removing or driving them out of it. Thus Xenophon in his Book concerning Contribution saith, That the possession of Lands is held in the time of war by Muniments, which he there calls Walls and Frontier Garrisons.

V. Things not the Enemies can∣not be acqui∣red by War.

Whence this also may be gathered, That before the War can transfer a Right unto us in any thing so taken, it is requisite by the Law of Nations, that that Right should first be in our enemies. For things deposited or laid up within our Enemies Towns or Garrisons, whose right Owners are neither Subjects to our Enemies, nor have any hostile mind to∣wards us; cannot by War be made lawful prize, though we do conquer the place; as is suf∣ficiently proved, among many others, by that of Aeschines, where he shews, That Amphi∣polis, being a City belonging to the Athenians, could not be lawful prize to King Philip by that War which he made with the Amphipolitans. First, because no reason could be given why the Athenians should lose their right, being no Enemies at that time to King Philip; and then, Because this Right of changing properties by mere force would prove a matter of so dangerous a consequence, that it ought not to be largely interpreted.

VI. Concerning Goods found in an Enemies Ship.

Wherefore that which is commonly said, That Goods found in the Ships of our Enemies are adjudged to be the Enemies Goods, and consequently are lawful prize, is not so to be understood as though it were a certain Law made by the Right of Nations, but because it gives occasion to a very great presumption that they are so, which notwithstanding by preg∣nant and evident proofs to the contrary may be dash'd. And so it was long since adjudged in Holland in a full Senate during the War with the Hans-towns in the Year 1338. and from thence hath since past into a Law. Neither are the Ships of our Confederates forfeit∣ed, though the Goods in them be an Enemies, unless it be so agreed with the consent of the Masters of the Ship. And so are the Laws of France, as I suppose, to be understood, which adjudge the Goods lawful prize, if the Ship be so; and the Ship lawful prize, if the Goods be so. But otherwise the Goods only are prize, but not the Ship. So in the War between the Venetians and the Genoese, the Ships of the Grecians being searched, those Enemies that lay hid in them were taken and made Prisoners.* 1.198

VII. Things taken from our ene∣mies are ours by the Law of Nations, tho' they took them from others.

This also is most certain, That if we look no farther than the Law of Nations, whatsoever is taken by War from our Enemies, cannot justly be claimed by those from whom those Enemies won it, by the Right of War; because, The Law of Nations first made our Ene∣mies Lords of it, (as to an external Right) and afterwards the same Law made it ours. Thus Jephtha pleads his Title against the Ammonites, because the Land in question, as also another part of the Land of the Moabites were, by the right of Conquest first won from

the Ammonites and so, invested in the Amorites; and from the Amorites,* 1.199 by the same Right of War, was transferred unto the Israelites, Judg. 11.23, 24, 27. Thus did David claim and divide as his own, the Lands that he took from the Amalekites, notwithstanding that the Amalekites had before taken it from the Philistines. Titus Largius (as Dionysius Halicarnassensis records the Story) did thus adjudge this Case in the Roman Senate,* 1.200 when the Volscians laid claim to some of those Lands which the Romans had then lately won by the Right of War, because anciently they had been Lords thereof, saying, We Romans do account the possession of those Lands which we have won by the Sword to be most just and honest; neither can we be so easily perswaded to erase the Monuments of our Ancestors valour, by resto∣ring that back unto those, who when they had them were not able to keep them. Nay those Lands that we thus gain, we conceive our selves bound not only to communicate to those Citizens that are now living, but to leave to those who shall hereafter succeed us. So far are we from adjudging that against our selves (by a voluntary surrender of what we have gained by the Sword) which is usually adjudged against Enemies.* 1.201 This Plutarch relates to be the ground of the War between the Romans and the Vejans, who demanded of the Romans the City Fidonae, as anciently belonging unto them; which demand was not thought by the Romans to be unjust only, but ridiculous; to wit, that they who would not aid and assist the Fidenates whilst they were contending against the Ro∣mans, and in great danger; but suffered the Citizens thereof to be destroyed, should now lay claim to their Houses and Lands when the were possest by the Romans by the Right of Conquest. This also is plain by that Answer which the Romans gave unto the Arunci, We Romans do conceive that whatsoever any man wins by his valour from his Enemies, he may bequeath to his Posterity, as being by the best of titles his own. So in another place they return this in answer to the Volsci, We account that which we conquer from our Enemies to be the best Estate we have,* 1.202 seeing that this is not only adjudged ours by our own Laws, but by a title derived more truly from the gods than from men, and approved of by the constant practice of all Nations, both Greeks and Bar∣barians; we shall not therefore yield up any thing cowardly of that which we have gotten by va∣lour, nor calmly forego what by the Sword we have gained. Maximum hoc probrum foret,* 1.203 quae virtute ac fortitudine quaesita sunt, ea per formidinem aut stupotem amittere; For this would be the greatest dishonour unto us, if either through fear or stupidity we should lose that which by virtue and mere manhood we have acquired. And this is also confest in that Answer of the Samnites, We have gained this by Conquest, which Law is of all acquisitions the justest. By this Right the Romans held Syria, as Appianus notes,* 1.204 without restoring it to Antiochus Pius, from whom Tigranes, that great enemy to the Romans, had formerly taken it; ad∣judging it more equal that Syria should be governed by the Romans, who had expelled Tigra∣nes; than by the Seleucidae, who had been ejected by Tigranes. Yea, and Antiochus himself was of opinion, That that was the most just and lasting possession that was got by the sword.* 1.205 Justine brings in Pompey answering the same Antiochus (who, after the recession of Tigranes into Ar∣menia, demanded the Kingdom of Syria, out of which he had been by the same Tigranes dri∣ven, and into which after eighteen years he had been restored by Lucullus) in these words,* 1.206 That he would neither with nor without the consent of the Syrians set such a King over them as could be content to hide himself in a corner of Cilicia all the while that Tigranes held Syria.* 1.207 And now the same Tigranes being vanquished by the Romans, would demand the reward due to other mens labours. And therefore as he had not taken the Kingdom from him, so that Kingdom which himself had left unto Tigranes he refused to give him, because he knew not how to defend it. So also those parts of Gallia which the Cimbri took from the Gauls, the Romans afterwards taking, held as their own. Nor did the French restore to the Romans that part of Italy which they took from the Goths.

VIII. That things ta∣ken from the Enemies are not always theirs that take them.

But here a more knotty Question ariseth, concerning the persons to whom the spoils taken from the enemy in a solemn War belong, whether to the State, or to every person of, or among the people. The Modern Lawyers do vary exceedingly in their opinions concerning this Point; for most of them finding it in their Civil Law, That capta sunt ca∣pientium; Things thus taken, are theirs that take them. And in the Body of the Canon Law, That the spoil is to be distributed by publick Authority, do one from another (as is usual) deliver their opinions thus, That primarily, and by original Right, he that first appre∣hends them hath the best title to them; but notwithstanding that they are all to be brought to the General, who may distribute them amongst his Souldiers. But this opinion is not more common than false; and therefore that we may hereby learn how unsafe it is in such doubtful cases to be biassed by so weak an Authority, I shall the more accurately confute this opinion. We cannot indeed deny but that by the consent of Nations this Question may be determined either way, namely, That the Spoil may belong either to the people, or to him that bears the charge of the War, or to those particular persons that with the hazard of their lives do first lay hands on it. But the Question here is, Not what they may determine in this Point, but what they have or do determine of it; whereunto I an∣swer, That the things of an enemy, by the consent of Nations, are no otherwise their enemies that take them, than as they belong to none; as we have already explained it from that Saying of Nerva the Son.

IX. That possession and dominion may be gained for us by ano∣ther.

But the things that are no Bodies, are indeed theirs that first take them. But they may be said to take them that employ others to take them, as well as they who take them for and by themselves. So they that are employed by others to catch Fish, Fowl, Deer, or Pearls, whether they be Children, Servants or Freemen, do not appropriate them unto themselves, but take them for those that employ them. It was well said of Modestinus the Lawyer,* 1.208 Whatsoever is naturally gained, as possession is, may be gained by any man whom∣soever we will appoint to do it for us. So likewise Paulus the Lawyer, Possession is gained by the mind, and by the body, but then the mind must be our own; but the body may be either our own or anothers. And in another place, Possession may be taken for us by either a Proctor, an At∣torney or Guardian; that is, if it be done by them with that mind and purpose as to make it ours. Thus it was among the Grecians, they that overcame in the Olympian Games, obtained indeed the prize; but not for themselves, but for those that sent them. And the reason is, because naturally one man may make use of another as his Instrument, if both are willing. Wherefore the difference that is said to be between persons bond and free, as con∣cerning acquisitions, respects only the Civil Law, and appertains properly to civil acquisi∣tions; as appears by that place of Modestinus before cited. And yet the Emperour Seve∣rus drew these nearer to the pattern of natural acquisitions, not only for profit, as out of Jurisprudence, as he himself acknowledgeth. Setting then aside the Civil Law, that say∣ing will hold good, That what a man may do for himself by himself, that he may also do by another; and it is the same thing to do it by another, as to do it by himself.

X. A distinction of Acts done in War into publick and private.

Here then we must distinguish between those acts which in a War are truly publick, and those private acts that are done by the occasion of a publick War. By these private acts the Goods of an Enemy may primarily and directly belong to the private Souldier; but what∣soever is gained from an Enemy by such acts as are publick, is due to the people, or to him that maintains the War. Upon this Right of Nations Scipio grounds his Plea against Mas∣sanissa in Livy,* 1.209 Syphax, by the good conduct of the Roman people, is conquered and taken; and therefore He, his Wife, his Kingdom, Lands, Towns, with their Inhabitants, yea and in a word, whatsoever Syphax had, is thereby become lawful prize to the people of Rome. And in the same manner doth Antiochus the Great argue, That Coelosyria did of right belong to Se∣leucus, and not to Ptolomy; because it was Seleucus that maintained the War, to whom Ptolomy was but an Auxiliary,* 1.210 as Polybius relates.

XI. The Land that is taken is his that maintains the War.

The Soil, and whatsoever is fixed thereon, are not usually taken but by some publick Acts, as by the introducing of an Army, by placing of Garrisons in Strong Holds, Towns and Castles; and therefore, as Pomponius saith, Publicatur Ager qui ex Hostibus captus est; Lands taken from an Enemy fall to the State, that is, (as he expounds himself) praedae non cedit, is no part of the prey or booty strictly taken, (which is sometimes granted to the com∣mon Souldiers.* 1.211) So Salomo in Procopius, That Prisoners and some other Moveables should be given as a prey to the Souldiers, is not without some reason, (so as it be done by publick Grant, as we shall anon explain it;) but that the Lands should altogether belong to the Prince, or to the Ro∣man Empire that defrays the charge of the War,* 1.212 is but just; though the Emperor Severus gave the very Lands conquered from his Enemies unto the Captains and Souldiers of his Frontier Garrisons. Among the Hebrews and Lacedemonians the Land taken by War was divided by Lots amongst the Tribes; yet so, that amongst the Hebrews the Kings Lot was equal to that of each single Tribe. Among the Romans, the Lands taken in War were either kept to be let out, some small portion thereof being sometimes left for honours sake to the for∣mer Owners; or alienated and sold, or assigned over to Husbandmen to be ploughed or made tributary, whereof we have divers testimonies in their Histories, Laws and Com∣mentaries. The Romans, (as Appian tells us) when they subdued Italy, took away part of their Fields by way of punishment. And elsewhere he tells us, That the Romans having conquered their Enemies did not take away all their Lands, but a part only. Cicero also in that Oration that he made to the Chief Priests for his own house, notes, That their Emperours having subdued an Enemies Country, did sometimes consecrate their Fields, but it was always by the Decree of the people.

XII. Things moving themselves and moveable, be∣ing taken by private Acts, are theirs that take them.

But as to things moving themselves or moveable, they are taken either in publick ser∣vice, or out of it. If they are such as are not taken upon publick Duty, they are theirs that take them. And hither we may referr that of Celsus, Quae res hostiles apud nos sunt, non publicae, sed occupantium fiunt; Whatsoever is found amongst us that was the enemies, belongs not to the Commonwealth, but to them that apprehend them; that is, the War being begun. For the very same was observed even of Men and Women at such time as they in this case were equally valued with Goods. We have a notable Saying in Tryphonius to this purpose, But they who in times of peace come to sojourn in anothers dominions (as friends) the War suddenly breaking out, were made Slaves with them amongst whom they were by their own hard fate apprehended as enemies. Where we may note, That the Lawyer a∣scribes this unto Fate, because they were brought into bondage without any merit of their own; for all such were anciently ascribed to Fate. So Servius upon that of Virgil, Acti

fatis, observes, That the Poet endeavours to attribute nothing to the merits of the Trojans, but all to Fate. So Naevius concerning the Metelli, Fato fiunt Romae Metelli consules; The Metelli were made Consuls at Rome (as it were) by Fate, that is, without any merit of their own. In like manner it is, when Souldiers take any thing from their enemies whilst they are not upon Duty, nor executing the Commands of their Captain, but by per∣mission of their Commanders, or by a promiscuous licence that Souldiers do usually take on each side one against another; what, I say, is so taken is lawful prize to him that takes it; because it is not taken in order to any Command, but voluntarily, and is therefore gi∣ven them as the reward of their valour. As when in pickeering a Souldier overcomes, disarms or kills his Enemy, the spoil of that enemy is due unto him in recompence of his Virtue; so when a Party shall make an excursion freely without Command into an enemies Country, so as it be beyond ten miles from the Camp, according to the Roman Discipline (as we shall see anon) whatsoever they shall so take is theirs that take it.

XIII. Unless the Ci∣vil Law do o∣therwise or∣dain.

And whereas we say, That by the Law of Nations whatsoever is thus acquired becomes directly his that takes it, we are so to understand it, that this was the Law of Nations before any thing in this Case was decreed by the Civil Law. For every State or people may a∣mong themselves otherwise determine of it, and prevent the right and dominion of him that takes it, as we may perceive it done in many places where Fowl and Deer are ta∣ken. So also the Civil Law may ordain, That whatsoever is found amongst us of or be∣longing to our enemies, the War being begun, shall be confiscate to the use of the Com∣monwealth.

XIV. What is taken by a publick act is his that maintains the War.

But as yet as to those things that any man takes by any publick Act of a solemn War, there is another reason why those things should not be theirs that take them. For herein every private Souldier represents the Body of the Commonwealth, and what is done by a∣ny one is taken to be done by the publick State that employs him; and therefore whatso∣ever, whether possession or dominion, any of them do thus take, (unless the Civil Law do otherwise determine) the people may be said to acquire; and therefore they may transfer their right thereunto to whom they please, and to what uses they please. But be∣cause this seems to be repugnant to the common opinion, therefore I shall endeavour to confirm it with more than ordinary proofs, which I shall draw from the examples of the noblest Nations. I shall begin with the Grecians, whose custom, in this case, Homer in se∣veral places describes.

Omnia jam divisa, quibus spoliavimus Ʋrbes.

Their Cities sack'd, the spoils divided are.

Achilles in the same Poet, speaking of the Cities which he himself had stormed, saith,

Omnibus his ingens pretio numeróque suppellex Nostra rapta manu: Regi sed Victor Atridae Cuncta tuli, celeres residens qui pone carinas, Divideret cum pauca aliis, sibi multa tenebat.

From which Cities Achilles brought to Agamemnon all the rich plunder which he divided, distributing some few things for others, but reserving the greatest part to himself. For here we look at Agamemnon, partly, as he was at that time Prince of all Greece, and so re∣presenting the whole Body of the people; by which right he divided the spoil, but with the advice and consent of his Council: and partly as a General, and so out of that which was publick he claimed a greater share than others to himself; and therefore Achilles thus bespeaks Agamemnon,

Nam neque me tecum praedae pars aequa sequetur, Si Danaûm virtus Trojanum everterit Ʋrbem.

My part of th' prey with thine must not compare, Though by our valour Troy subverted were.

And so in another place Agamemnon by the advice of his Council offers unto Achilles a Ship laden with Brass and Gold, with twenty Women, which he might take first out of the Spoil. Troy being taken, Virgil, speaking of King Priamus's Palace, saith,

Custodes Lecti Phoenix & dirus Ʋlysses Praedam asservabant: huc undique Troïa gaza. Incensis erepta adytis, Mensaeque Deorum, Craterésque Auro solidi, captiváque vestis Congeritur.

* 1.213There Phoenix and Ʋlysses guard the Spoil, And from all parts Troy's precious things do pile, Snatcht from burnt Temples, and from Altars rare, Goblets of Gold, and sacred Vestments are.

Thus we read,* 1.214 That in after Ages Aristides preserved the Spoil at Marathon intire. And after the Battel at Plataeae it was severely forbidden that any man should presume to take to himself any part of the spoil; afterwards the spoil was preserved and distributed among the people, according to each mans deserts. After this, when Athens was conquered, Lysander caused the spoil of the City to be brought into the open Market. And the Lacede∣monians had publick Officers who were appointed to make Portsale of all their prizes taken in the War.* 1.215 If we look into Asia, Virgil will inform us, That the Trojans were wont to divide the spoil by lot, as is usual; where things held in common are to be divided a∣mongst many,* 1.216 In other places the spoil was divided by the General, by which right He∣ctor at the special instance of Dodonis promised to give him Achilles's Horses, whereby we may understand, That this Right of gaining propriety was not always in the bare taking of the thing.* 1.217 So the spoil taken in Asia was brought to Cyrus the Conqueror, and not distri∣buted but by his order, whose whole care was to chuse out such things to offer unto the Gods as the Magi thought most acceptable to them. If we look into Africa, we shall find the same custom there.* 1.218 So whatsoever was taken at Agrigentum, or in the Fight at Cannae, or in other places, was sent unto Carthage. Among the ancient Francks, whatsoe∣ver was taken in War was divided by lot; neither had the King himself any other share than what fell to him. Captivi & Praedae inter Victores sorte dividebantur; The Conquerours divided by lot both the Captives and the Spoil, saith Servius upon Virgil. But look how much more excellent the Romans were than other Nations in Military Discipline, so much the more worthy they are of our imitation. Dionysius Halicarnassensis, a most exact Observer of their Manners and Customs, thus instructs us in this Case, Whatsoever is taken from the E∣nemy by valour in War, is decreed by the Law to be publick: so that not only the private Souldier was forbid to claim any propriety in it, but even the General himself could claim no interest there∣in; but the Quaestor received it, and in an open Market exposed it to sale. These are the very words of those that undertook to accuse Coriolanus to the people of Rome; which words, though true, yet smelt too rankly of envy and distraction.

XV. Yet was some power herein always grant∣ed to the Ge∣neral.

For that the people were the right Owners of the Spoil, was most true (as Simler testi∣fies in his History of the Switzers:) and yet it is as true, that the power of disposing there∣of was allowed in every free State to the General, yet so that he was to render an account thereof unto the people. Polybius concerning L. Aemilius Paulus testifies thus, Being possest of the whole Kingdom, and having it thereby in his own power to dispose of all things at his pleasure, he yet coveted nothing.* 1.219 So doth Livy concerning the same Aemilius, It is in the power of the General to destroy those Cities that are taken by the sword, but not those that are surrendred; yet even in these also the disposition of the spoil is in his power, and not in the Souldiers. But not∣withstanding this power that custom hath given to Generals, some of them to the end that they might free themselves from all manner of suspicion, have wisely transferred it back to the Senate,* 1.220 as Camillus did. And they that have claimed it, have been observed to have disposed of the spoil to several uses, according to their several designs, to the promo∣ting of either Religion, Honour, or Ambition.

XVI. Who have ei∣ther brought into the pub∣lick Treasury,

But those amongst them who desired to be, or to appear, most holy, would not at all en∣rich themselves with the spoils of the enemy; but whether it were in money, the Quaestor of the people was commanded to receive it; or in other Goods, he was commanded to make Portsale of them: and the money for which they were sold, went under the name of Manubiae,* 1.221 as Favorinus in Gellius notes, and was by the Quaestor brought into the Trea∣sury. But in case there were matter for a triumph, then it was first ostentously shewed to the people. Manius Curius called the Gods to witness, That he had not so much as touched any of the spoil, but only one poor Beechen Cup, wherewith to sacrifice to the Gods. But that of Aemilius Paulus,* 1.222 which Plutarch records, is admirable, and for which all men did extol him for his magnanimity, namely, That when he had collected from the enemy an infinite mass of Gold and Silver, nec inspicere voluisset, he would not be tempted with the sight of it. But de∣livered it to the Quaestor for the publick use.* 1.223 The like did Pompey, of whom Vellejus writes thus, The money that he took from Tigranes, he caused to be delivered to the Quaestor, as his custom was,* 1.224 and to be publickly registred. So also Marcus Tullius in his Epistle to Salust, gives this testimony of his own integrity, De praeda mea praeter Quaestores Ʋrbanos, Teruntium nec attigit, nec tacturus est quisquam; Besides the Quaestors of the City, no man hath or shall touch the least part of the spoil that I have got from the enemy. And this indeed was the general pra∣ctice of the Romans in their most ancient and best days; whereunto Plautus alluding, saith,

Nunc hanc praedam omnem jam ad Quaestorem deferam.

Now all this spoil I'll to the Questor bring.

The like he saith of Prisoners taken,

Whom from the Questors of the spoil I bought.

But others of the Roman Generals, did without the Questors make Portsale of the spoil taken from the Enemie by themselves, as may be gathered from the ensuing words of Ha∣licarnassenses. Thus we read that the Sabines being vanquished by King Tarquin, he sent the Prisoners together with the spoil unto Rome.* 1.225 So likewise Romulius and Veturius being Consuls, the spoil was sold to supply the publick Treasury, which was then almost ex∣hausted, the whole Army repining at it. But in a case so clear and so beaten,* 1.226 what need we any more testimonies? But yet this is worthy to be observed, That the spoil,* 1.227 or part thereof at least, was sometimes given to the Gods, sometimes to the Souldiers, and sometimes to others; to the Gods were given, either the spoils themselves, as those which Romulus was said to hang up in the Temple of Jupiter Feretrius; or being reduced into Money, that Money was imployed to religious uses:* 1.228 Thus was the Temple of Jupiter built on the Hill Tarpeius, with the Money raised out of the Pometine spoils by Tarquin the Proud.

XVII. Or divided it to the Souldi∣ers, and how.

To give the spoil to the Souldiers, was by the Ancient Romans accounted as proceed∣ing from Ambition. So Sextus the Son of Tarquin the Proud, but driven unto the Ga∣bians, is said to distribute the prey amongst the Souldiers, that thereby he might render himself the more powerful. Appius Claudius in the open Senate condemned such kind of largesses to Souldiers, as savouring too much of novelty, rashness, and prodigality:* 1.229 The spoil given to the Souldiers, was either divided amongst them, or taken, as when each man had what he could catch; when it was divided, either it was in lieu of their pay, in case it could not conveniently be reduced to money, and so brought into the publick Treasury, and this was never opposed by Appius Claudius;* 1.230 or else it was divided accord∣ing to every mans merits for services then done. The order and method of this distribu∣tion is excellently described by Polybius, namely,* 1.231 the lesser part of the Army was sent out daily to fetch in the spoil, who were commanded to bring whatsoever they found into the Camp, where the Tribunes were equally to divide it. They that had the charge of the Camp, which from the practice of King David grew into a Law;* 1.232 and they that through sickness, or by reason of some publick employment were absent, had equal shares with those that were present: sometimes the spoil was reduced into money,* 1.233 which in lieu thereof was distributed among them; which in Triumphs was usually done. The pro∣portions I find to be thus divided, sometimes to a Foot Souldier a single share, to a Cap∣tain of Foot a double, to an Horse-man a treble; and sometimes to a Foot-man a single, and to an Horse-man a double proportion; elswhere, a single to a Foot Souldier, a double to the Captain: but to a Tribune, and to a Horse-man (or rather to a Captain of Horse, as Appianus relates) a quadruple share. There was also sometimes a respect had to the merits of Souldiers. Thus was Cajus Marcius, who had behaved himself gallantly, at the taking of Corioli highly rewarded for his valour out of the spoil of that City, before it was distributed among the Souldiers; but which way soever the spoil was to be divided, it was lawful for the General to take of the principal part of it, what he pleased unto himself, that is, as much as was sit: which also hath sometimes been granted unto others, as the reward, or an encouragement to valour. As Euripides speaking of the Trojan La∣dies saith,

—Quae principibus eximiae datae Erant Achivis.

—They that were most fair Unto the Grecian Princes given were.

And of Andromacha he tells us, That Pyrrhus the Son of Achilles chose her to himself.* 1.234 Fa∣bricius in his Oration to Pyrrhus, challengeth to himself this priviledge, saying, That of the things taken in War, it was lawful for him as General, to take what and as much as he pleased; whose example Julian proposeth both to himself and his Army, as Ammianus testi∣fies. Whereunto Isidore hath respect, where treating of the Right of War, He divides the spoil into that part which was equally to be distributed among the Souldiers, with regard had to the quality of their persons and to their hard service, and into that which was the Princes or Generals portion. Tarquin the Proud, as Livy testifies,* 1.235 would both enrich himself with the

best, and pacifie the minds of the people with the rest of the spoil. Servilius in his Oration to Lucius Paulus, saith, That it was in his power to have made himself rich in the divisi∣on of the spoil. And there are some of opinion, that it is that part only that falls to the General,* 1.236 which is signified by the word Manubiae, amongst whom we find Asconius Pedianus. But much more commendable are those Generals, who can be content to for∣goe their Right in this case, and assume nothing of the spoil unto themselves, but the Honour of the Conquest; among whom was that Fabricius before named, who preferred his own honour before riches though justly got, which he confesseth he did in imitation of Valerius Publicola and some few others;* 1.237 whose example M. Porcius Cato also followed in his Spanish Victory, denying that he kept any thing to himself of the spoil he had ta∣ken from the Enemy, besides what he had eaten and drank: yet adding withal, that he did not thereby blame those Generals that had, or hereafter should enrich themselves by the spoil of their Enemies; but that he chose rather to emulate the best of men in their vertues, than the wealthiest in their riches. Next unto these are to be commended those Generals, who took somewhat of the spoil to themselves, but very sparingly. Such was Pompey whom Cato in Lucan commends, for that he brought into the publick treasury much more than he kept himself. In the division of the spoil, regard was sometimes had to such as were absent from the fight, as it was ordained by Fabius Ambustus at the taking of Anxur; and some∣times no regard at all was had of some, though present: As when Cicinnatus was Dictator, no respect was had in the division of the spoil to that part of the Army, that was command∣ed by Minutius. But look what Right the Emperours had in the Ancient Commonwealth, the same was translated when the Commonwealth was setled to the Generals of the Ar∣mies,* 1.238 as appears by Justinians Code; where from an insinuation of acts done, all dona∣tions of thing moving themselves and moveable were discharged, which their Generals gave unto the Souldiers out of the spoil of the Enemies, whether they were then occupied in the War,* 1.239 or in what places soever they were known to abide. But this division gave frequent occasion of calumny, as if those Captains did by that means purchase favour to themselves only, which was the crime charged upon Servilius, Corolianus, and Camillus, as if they obliged their friends and clients by their liberality out of the publick stock; where∣unto they plead that they had done it for the publick good,* 1.240 namely, That they that were present at the work done, receiving the fruits of their own labours, might thereby be encouraged the more willingly to adventure themselves in other expeditions, which are the very words of Halicarnassenses.

XVIII. Or by plunder.

* 1.241Thus much for Division, now we come to Direption, when every private Souldier held what he could catch; which licence was granted unto the Souldiers, either in wasting the Enemies Country, or after a set Battel, or at the storming of a City that had been long besieged: for then commonly upon a sign given, every man ran in and took what he could get; this licence was very rarely give•• ••nciently, yet doth it not want some precedents. For Tarquin we read gave the spoil of the City Suessa to his Souldiers. So did Q. Servi∣lius the Dictator,* 1.242 the rifling of the Camp of the Aequi. The like did Q. Fabius, having defeated the Volsci, and taken the City Ecetra, and afterwards some others did the same ve∣ry often. Perseus being put to flight, Paulus the Consul gave the spoil of those that were slain or maimed upon the spot to his Foot Souldiers;* 1.243 but to the Horse, the spoil of the Coun∣try adjoining. So also by the decree of the Senate, did he give the spoil of the Cities of Epirus to the Souldiers. The like did Sulla the City of Athens. Lucullus having vanquished Tigranes, did for a while restrain his Souldiers from gathering the spoil; but at length being assured of the Victory, he suffered them to take it: He gave also the plunder of Tigranocerta, as Plutarch records, to the Souldiers. The like did the Emperour Severus the spoil of Ctesi∣phon to his; yea, and commanded his Tribunes, Captains, and common Souldiers to plun∣der all the Villages about it. Mahomet the second to encourage his Army, promised them all the spoil and Captives they could find in Constantinople. That which some men do ob∣ject against this is, That it oftens comes to pass, through this licence given to every Soul∣dier to catch what he can, that they that are greedy of plunder, do deprive those that are truly valiant, of the reward of their valour. For it is frequently seen, that they that are most backwards to fight, are most forwards to plunder; whereas they that have magnani∣mously exposed themselves to the greatest labour and danger, have reason to expect the best part of the prey, which are the very words of Appius in Livy. Whereunto not very imperti∣nent is that of Cyrus in Xenophon,* 1.244 In this way of partition, I mean by plunder, I very well know that the worst Souldiers get most: But unto this, it is commonly answered, That what any man takes from his Enemy with his own hands, is ever more acceptable unto him, than that which is assigned him by others, though in value it be much less. Sometimes a∣gain it is permitted Souldiers to plunder, because indeed it cannot easily be prevented. So it was in the winning of Cortuosa a Town of the Hetruscians, The Tribunes ordered the spoil to be sold: but Imperium quàm consilium segnius fuit; The command came too late; for

the Souldiers had already got it, which could not without envy be retrieved.

XIX. Or grant it to others.

Now whereas I said, that the spoil, or the mony raised out of it, was sometimes di∣vided among such as were no Souldiers; this often happens, when to the maintenance of the War, some men have liberally contributed, unto whom restitution hath been promised to be made after the Victory to the full value: yea, and sometimes Plays and Interludes have been ordained out of the money raised by the spoil of the Enemy.

XX. Or being di∣vided it is di∣versly disposed of.

Neither is the spoil thus diversly disposed of only where the Wars are divers, but the same prey in one and the same War, is often set apart for divers uses, distinguishing it either by its parts, or by its kinds. So Abraham gave the Tenth of the spoil to Melchi∣sedeck. The like did Camillus to Apollo Pythius in imitation of the Greeks, who also learned it from the Hebrews; at which time under the vow of decimating the spoil,* 1.245 the Chief Priests did adjudge, That not only things moveable, as Money, Jewels, Cattel, and the like; but Towns, and Fields, and the like immoveable things were also comprehend∣ed. The same Camillus having conquered the Falisci, allotted the greatest part of the spoil to the Questor, yet reserved some small part of it to to the Souldiers.* 1.246 So did Lu∣cius Manlius also sell part of the spoil which he reduced into the publick treasury;* 1.247 and yet took great care that part thereof should be divided among his Souldiers, as it was most just. The spoil of the Enemy may also be divided by its several kinds, which are these; either they are Captives, Droves, or Herds of Cattel (which the Grecians when they speak pro∣perly, call, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the prey) Money, things moveable, and these either common and or∣dinary, or such as are more rare and precious. Q. Fabius when he had overcome the Vol∣sci, commanded the prey and spoil to be sold; but for the Silver,* 1.248 he reserved that for himself. And when he had subdued the Volsci and Aequi,* 1.249 the Prisoners he led beyond the Territories of Tusculum, and distributed them to the Souldiers; but the common people, and the Cattel, he left in the fields of Ecetra for pillage and plunder.* 1.250 Lucius Cornelius when he had taken Antium, brought all the Money, whether Gold, Silver, or Brass, into the pub∣lick Treasury, caused the Prisoners and spoil to be sold, reserving for the Souldiers such things only as sufficed for food and clothing. Neither was that of Cincinnatus much un∣like, who having taken Corbio, a Town belonging to the Aequi,* 1.251 sent the most precious part of the spoil to Rome, the rest he divided among the Souldiers by their Centuries. Camillus having taken Veji, brought nothing to the publick Treasury, but the Money he had raised by the selling of the Captives: But having Conquered the Hetrusci, and made sale of the Captives; out of the Money so raised, he restored to some Roman Matrons the Gold they had contributed to maintain the War, and laid up three Cups of Gold in the Capitol. Fabricus having conquered the Lacanes, the Brutii, and the Samnites,* 1.252 did ve∣ry much enrich the Souldiery, restored to every Citizen his Taxes, and brought into the Treasury Four hundred Talents besides. So did Fabius, when he had taken Tarentum,* 1.253 brought the Money raised by the sale of Prisoners into the Treasury; but the rest of the spoil he disperst among his Souldiers. Thus did Q. Fulvius, and Appius Claudius, when they had taken Hanno's Camp, they sold the spoil and divided it, rewarding every man that had done any signal service in that fight. Scipio having taken Carthage,* 1.254 gave the spoil of the City to his Souldiers, reserving only the Gold and Silver to gratifie his friends. Acilius upon the taking of Lamia, divided among the Souldiers one part of the spoil, and sold the other. Cn. Manlius having subdued the Gallogrecians,* 1.255 and according to the then Romish superstition, burnt their Arms, sold the rest of the Prey;* 1.256 part where∣of as his own he brought into the Treasury, the rest he divided among his Souldiers with singular care as was most fit.

XXI. Oft-times it was embezelled.

Whence we may collect, That no less among the Romans, than among other Nations, the spoil did belong to the people of Rome, though the disposition thereof was sometimes granted to their Generals; yet so, that they were to give account thereof to the people: which we may learn amongst others, by the example of L. Scipio,* 1.257 who as Valerius Max∣imus relates it, having conquered King Antiochus, and added Asia to the Roman Empire,* 1.258 was afterwards (as Livy reports) condemned for enriching himself with the spoil that belonged to the Commonwealth, for he had received Four hundred and eighty Talents of Silver from the Enemy, more than he had brought into the Treasury. Cato in his O∣ration concerning the spoil taken from the Enemy, bitterly and resolutely complains of the licence and impunity granted unto their Generals in his time, in imbezelling the spoils of the Enemy, and so robbing the publick Treasury: A fragment of which Oration is re∣corded by Aulus Gellius in these words,* 1.259 Fures privatorum furtorum in nervo atque compedibus aetatem agunt: Fures publici in auro atque purpura. Private Thieves we usually load with bolts and fetters: But they that rob the Commonwealth, are clad in Gold and Purple (and are indeed the only Gallants of our age.) So elsewhere the same Cato wonders, That any man should dare to hang up in his own house those Ensignes that were taken in Wars, as if they were a part of hi•• own houshold-stuff. Neither are Generals only guilty of this crime, but even private

Souldiers, in case what they so take from the enemy, they do not forthwith produce in publick. For they were all of them bound by Oath, saith Polybius, that they should not purloin or convey away any thing of the prey, but that they should faithfully discharge their trust in regard of their Oaths.* 1.260 The Form whereof we find recorded by Aulus Gellius, whereby they were obli∣ged not to take away any thing, either within the Army, or within ten miles of it, that was more worth than a small piece of Silver: or if they did, then they were to bring it to the Consul, or within three days to make open profession of what they had done: which gives some light to that of Modestinus, Is qui praedam ab hostibus surripuit Peculatus tenetur; He that stealeth away any of the spoil and keeps it to himself, is guilty of robbing the publick Treasury. And this one thing is sufficient to admonish those that expound the Law not to believe that the spoils taken from the enemy are peculiar unto those that take them; but unto the State that bears the charges of the War. For there can be no robbing of the Commonwealth but in those things that are either publick, sacred or religious. The result of all this is to shew, That, setting aside the Civil Law, and primarily, whatsoever is, in the publick acts of a Just War, taken from the enemy, belongs to the Prince or people who are at the charge of making the War.

XXII. That some∣what may be changed of this common right by any Law or Act of the Will.

We add setting aside the Civil Law, and primarily or directly. The former, because the Law, whether made by the people, as among the Romans, or by the King, as among the He∣brews and other places, may dispose of these things that are not actually possest to the bene∣fit of the Commonwealth. And here under the word Law we understand also Custom, if rightly introduced. The latter I add, that we may know that it is in the power of the people to grant the spoils of the enemy to others, as well as they may dispose of other things. And that not only after they are got, but before; so that immediately upon the taking of them, Actions are commenced, brevi manu, as the Lawyers speak, that is, compendious∣ly, declining the dilatory Forms of Suits. Which Grant may be made not only nomi∣nally, but generally also, as to Widows, to the aged and impotent, and to poor Orphans; as part of the spoil was thus given in the times of the Maccabites:* 1.261 or unto uncertain per∣sons, in imitation of those Sportulae which the Roman Consuls and other Princes cast a∣mong the people, whereof every man had liberty to catch what he would. Neither is the translation of this Right, either by Law or Grant, unto others always a mere donative. For sometimes it is due by some former Covenant or Agreement, sometimes in discharge of some Debt, or as a recompence for some loss received, or some extraordinary charge men have been at in the War either by purse or pains. As when a man serves in the War without pay, or for less than his pains deserves. For in these cases it is usual, we see, to grant either all, or some part of the spoil unto others.

XXIII. Some of the spoil may be due to our As∣sociates.

It is also observed by Civilians, That Custom hath so far prevailed almost every where, that whatsoever either our Associates or Subjects that serve without pay, and at their own cost and peril, shall take in the Wars, is their own. As to our Associates, the reason is manifest, because by the Law of Nature, they that are associated in a War, are bound to repair each others losses, which shall be occasioned by reason of the War which is common and publick. Besides, there are very few that will expose themselves to labour and dan∣ger for nothing;* 1.262 for this reason (saith Seneca) we usually reward Physicians, though they cure us not, Quod à rebus suis avocati nobis vacant; Because we call them from their own affairs to serve ours. And the same reason likewise serves for Lawyers, as Quintilian notes, Because they tear out their time, and employ their whole study to defend other mens E∣states, thereby neglecting all other means to improve their own. The very same is given by Tacitus,* 1.263 Omittit res familiares, ut quis se alienis negotiis intendat; That he casts off all care of his own domestick affairs, that he may the better intend the good of others. It is therefore very credible (unless there shall appear some other cause, as namely, mere kindness, or some former Contract) that it was the bare hope of gain by the spoil of the enemy, which they expected as a compensation for their loss of time and of their labour,* 1.264 that made them to expose themselves to so great dangers.

XXIV. And often to Subjects.

But as to Subjects, the reason is not so evident; because Subjects and Citizens owe their help and assistance to the Country or City whereof they are. But yet seeing that all Citi∣zens either cannot or will not expose themselves to those hazards and hardships that attend War; therefore it is but reasonable that retribution be made by the whole Body of the people, unto such as shall sustain the toil or the charges of it, but much more the damage that shall be thereby occasioned; in full recompence whereof, the hopes of the whole prey, or of an uncertain part thereof, is by the people easily (and that not without reason) granted unto them. So thought the Poet,

* 1.265Praeda sit haec illis quorum meruere labores.

Theirs be the prey whose pains deserv'd it have.

As to our Associates, an example we have in the League that was made between the Ro∣mans and the Latines, wherein it was agreed,* 1.266 That in all the Wars wherein the Romans should engage them, the spoil taken from the Enemy should be equally divided between them. So in the Wars wherein the Aetolians engaged the Romans, it was agreed,* 1.267 That the Cities and Territories should be the Aetolians, but the Prisoners and all Moveables should be granted to the Romans. To the ancient Latines the Romans gave a third part of the spoil, as Pliny testifies. And proportionable to the succours sent, the free Towns of the Switzers received their share of the spoil, as Simler relates.* 1.268 In a War against the Turks, the Pope, the Emperor and the Venetians, divided the spoil according to their respe∣ctive charges that they had been at in making the War. And Pomponius gratified Deiotarus King of Galatia with the lesser Armenia, because he had been his Companion in the War a∣gainst Mithridates. S^t Ambrose, upon the Story of Abraham,* 1.269 demonstrates the equity of this custom, Abraham, saith he, perhaps thought it but just, that they that came up to his assist∣ance in that War, should likewise partake with him of the spoils, as being the reward of their la∣bour. But as to Subjects, an example we have in the Nations of the Jews,* 1.270 where God commands Moses to divide the spoil of the Midianites into two parts, that is, between them that undertook the War and went out to Battel, and between all the Congregation. And in ver. 47. he subdivides that part which belonged to the Congregation, and gave the fiftieth part thereof to the Levites, that had the charge of the Tabernacle. Thus David divided the spoil taken from the Amalekites equally, between them that went down to Battel, and them that guarded the Stuff. Sometimes the Jews would divide the spoil,* 1.271 and grant half to the Souldiers; and as to the other part, they admitted the maimed, the Widows and the Orphans to have share with them. So we read of Alexander's Souldiers,* 1.272 that they al∣ways challenged the spoil taken from private men unto themselves, only the most precious things they reserved and presented to the King. Wherefore we find them accused for rob∣bing the publick Treasury, who had conspired to assume all the prey taken at Arbela to them∣selves, so as to bring nothing to the Treasury. But yet those publick things that belonged to the enemy, or to the King against whom they fought, were exempted from this Licence. Thus it was with the Macedonians when they brake into Darius's Camp, they carried away an infinite Mass of Treasure, leaving no place unrifled, but the Kings Pavilion only; it being a custom received amongst them (as Curtius notes) as well as amongst most Nations, to receive the Con∣querour in the Pavilion of the conquered. The custom of the Hebrews was not much unlike this of the Macedonians;* 1.273 For they always set the Crown of the vanquished King upon the head of the Conqueror, assigning all the Furniture of the Kings Palace or Pavilion unto him, as his share of the spoil. And amongst the Acts of Charles the Great we find that having conquered the Hungarians, Whatsoever was taken from private men, he gave to the Souldiers; but what was the vanquisht Kings, was brought into the Emperour's Treasury. The Grecians distinguished them by their several names, calling the publick 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, but the private 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; as also they did those taken in the Battel 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; but those taken after Battel, be∣ing publick, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; which distinction was afterwards approved of by other Nations. But it is plain, by what hath been already said, That the Romans during their ancient Com∣monwealth did not allow to their Souldiers so much; yet they began to be more indulgent to them in their Civil Wars. Thus you may read Aequilanum given to the Souldiers for pil∣lage by Sulla. And Caesar after the Battle of Pharsalia, gave Pompey's Camp to be pillaged by the Souldiers, with this Complement,

—superest pro sanguine merces, Quam monstrare meum est, nec enim donare vocabo Quod sibi quisque dabit.

For loss of bloud, a recompence I'll make, Not what I'll give, but what each man shall take.

And in another Civil War, the Flavians being led against Cremona,* 1.274 made all the haste they could the Night approaching, to storm the City, lest the pillage thereof should fall unto their Commanders and Legates; having, it seems, been sufficiently instructed by Tacitus,* 1.275 Expugnatae Ʋrbis praedam ad militem, deditae ad Ducem pertinere; That the Plunder of a Town, if stormed, belonged to the Souldiers; but if surrendred, unto the General.* 1.276 But afterwards as the Discipline grew more remiss, so this Licence of pillage was more willingly granted to the Souldiers upon this ground, lest whilst the Victory was yet doubtful, the greediness of the Souldiers should make them neglect their Enemies, and over-hastily fall upon the prey, which hath often proved fatal to the Conquerour. When the Castle Volandum in Armenia was taken by Corbulo, Tacitus tells us, That the common people were sold, but the rest of the spoil was the Conquerours, The same Tacitus brings in Suetonius encouraging his Souldiers to pursue their Enemies, and not at all to mind the pillage, assuring them that the Victory being ascertained, the spoil should be their own.* 1.277 So in Procopius we read that

all the pillage taken at Picenum was brought to Belisarius, that he might divide to every man according to his merits; the cause whereof is added, For, saith he, it is most unreaso∣nable, that whilst some with much toil and valour are killing the Drones, others without any la∣bour or peril should devour the honey.* 1.278 And in another place he tells us, That the Souldiers were much incensed against Salomon when he warred against the Levatae, because he detain∣ed from them the prey, who excused himself, in that he did it for no other reason than that at the end of the War he might therewith reward every man according to his deserts. There are some things of so small value, that they are not worth the publication, or expo∣sing to sale, these are usually granted to those that take them: such in the old Roman Commonwealth were a Spear, a Javelin, Fodder, Fuel, a Bottle, a Pair of Bellows, a Torch,* 1.279 and any thing else of less value than a small Piece of Silver. For all these are ex∣presly excepted in the Military Oath given to the Souldiers, as we may read in Gellius. Not much unlike is that which is allowed to Sea-men and Mariners, although they are un∣der pay.* 1.280 The French call this the spoil or pillage, wherein are comprehended Apparel, Bedding, Fuel, Gold also and Silver, under ten Scutes, sometimes the fifth part, some∣times the third,* 1.281 sometimes half the prize, belongs to the King, as it doth in Spain; and the seventh, and sometimes the tenth to the General of the Army; the rest belongs to them that take it, except Men of War with all their Tackle, which are always the Kings, and so are all Engines of War amongst the Swedes.* 1.282 In some places again, regard is also had to the labour, peril and charge that any man hath been at, and allowance is made in the partition of the spoil accordingly. In Italy, a third part of the Ship taken in Fight is the Masters of the Ship that took it, and as much belongs to them whose Goods the conque∣ring Ship is laden withal, and another third is theirs that fought and took her. And sometimes it falls out, that they who at their own charge and peril maintain the fight, do not carry away the prize; but some part thereof is due to the State, or to him, at least, that derives it from the State. As in Spain, they that set out the Ship upon their own charge,* 1.283 yield a part of the spoil taken to the King, and a part to the Admiral of the Seas. In France the Admiral claims the tenth part; so also in Holland: But there the State first takes the fifth part to themselves. Thus it is at Sea, but at Land in the sacking of Towns, and in Battels, every man usurps that which he takes to himself. And in excursions into the Enemies Country by Parties, whatsoever is so taken is divided among them that take it, according to every mans merit and dignity.

XXV. To what use these serve.

What hitherto hath been said, serves to this end, That if in any Nation, not embroiled with War, any Suit or Controversie arise concerning any thing taken in War, the things shall be adjudged unto him to whom the Laws and Customs of that people from whose parts they were taken, shall determine. But if nothing can be thereby proved, then by the common right of Nations the thing so taken shall be adjudged to the State or people themselves, if at least it were taken in the act of War. For by what we have already said it is plain,* 1.284 that what Quintilian sometimes said in the behalf of the Thebans doth not always prove true. As to what may be brought under the tryal of the Law, the right of War avails nothing; neither is it a good Plea to say, It was gained by Arms, unless by Arms we can retain it.

XXVI. Whether things taken without the Territories of either Party, be lawful prize.

But whatsoever is not the enemies, though it be found with the enemy, shall not be ad∣judged to them that take it. For this, as I have already said, is neither agreeable to the Law of Nature, nor was introduced by the Law of Nations. So the Romans in Livy an∣swer Prusias, If the Lands in question were not King Antiochus's, neither could it by Conquest be∣long to the Romans. But if the Enemy had any right or interest in those things which were an∣nexed to the possession, as if it were taken by him as a Pledge for some Debt, or if it were retained by him for the performance of some Covenants, for service or the like, that was for the advantage of the Enemy.* 1.285 In all or any of these Cases, I see no reason but that whatsoever was the Enemies is transferred unto the Conquerour. This also is some∣times controverted, Whether persons or Goods taken without the Territories of either of those Princes or people that are at War against each other, be theirs that take them. Whereunto it is answered, That if we respect the Law of Nations only, no place can give an Enemy protection: for as we have already said, Every where an enemy being found, may be killed. But yet he that hath the supreme power in that place, may at his pleasure prohibit the prosecution of an Enemy within his own Dominions; and in case of disobedi∣ence, may require satisfaction as for an injury done against himself. The like may be said concerning Deer taken in another mans Ground, That they are his that takes them; but it is lawful for him whose Ground it is, to prohibit his access unto them.

XXVII. This Right, how proper to a solemn War.

But this external Right of gaining things taken in War, is by the Law of Nations so pe∣culiar to a Solemn War, that in other Wars it can take no place. For in other Wars a∣mongst Foreigners the Right to a thing is not gained by force of the War, but only in compensation of some Debt, which cannot otherwise be recovered. But in Civil Wars, whether they be great or small, there is no change of Dominion, but by the Authority of a Judge.

CHAP. VII. Of the Right over Captives taken in War.

• I. That Captives taken in a solemn War, are by the Law of Nations, slaves.
• II. Yea, and their posterity.
• III. That whatsoever is done unto them is un∣punishable.
• IV. Even the incorporeal things that belong to Captives may be acquired by War.
• V. The cause why this was ordained.
• VI. Whether Captives may make their escape▪
• VII. Or resist their Lords.
• VIII. That this Right is not allowed in all Nations.
• IX. Nor now amongst Christians, and what succeeds in its room.

I. Captives in a solemn War na∣turally slaves.

THERE is no man by nature servant to another, that is, no man in his primi∣tive state or condition considered, without any fact done by himself, whereby his natural liberty is impeached, as I have elsewhere shewed* 1.286; in which sense our Lawyers may be understood, when they say, that to be another mans slave is against nature: But that this kind of slavery might at first be introduced by some fact done; name∣ly, by some voluntary agreement, or for some crime committed, is not repugnant to natu∣ral justice, as we have elsewhere also shewed. But by that Law of Nations,* 1.287 whereof we now treat, the word Servitude is of a larger extent, both as to persons, and as to its ef∣fects; for as to the persons, not only they that surrender themselves to the will of the Conquerour, or that oblige themselves by promise so to do, but all persons whatsoever that are taken in a solemn War, as soon as they shall be brought within our Garrisons, are altogether accounted Captives or Slaves, as Pomponius hath well observed. Neither is it to any purpose to plead, that they never bare Arms against us, nor declared themselves Ene∣mies by any Hostile Act, seeing that in this case, Par est omnium fortuna; Every mans conditi∣on is alike: yea, even the condition of those, who by mere fate happen to be found in the Enemies Territories, at such time as the War unexspectedly brake forth.* 1.288 Polybius speak∣ing of Captives taken in actual Arms, puts the Question thus, Quid patiendum est his ut justa supplicia pendant? What must these men suffer that their punishment may be just? If any man say they may be sold with their Wives and Children, he answers, At haec belli lege etiam illis ferenda sunt, qui nihil impii commiserunt; But so, saith he, may they be by the Law of Arms, who never did us hurt. Philo notes the very same where he saith, That ma∣ny good men lose their natural liberty, by occasions that are involuntary, and merely accidental. Dion Prusaeenses recounting the several ways whereby a man may get Dominion, assigns this as the third, When a man hath taken a Prisoner in time of War, that never did any act of hostility, and by that means makes him his slave:* 1.289 So Children being taken in War may be led away and made slaves. Servius upon the first of Virgils Aeneads speaking of Hesione the Daughter of Laomedon, whom Hercules slew as he was going out of Troy, saith, That she was taken Prisoner by the Law of Arms, and given to Telemon, Hercules his companion. And in another place he tells us, That the Grecians refused to deliver her back to the Trojans, saying, she was a Prisoner of War.

II. Yea and there posterity.

Neither are the persons of Men and Women only, thus taken made slaves, but their posterity for ever; for whosoever is born of a Woman after her Captivity, is a slave born; for, Partus sequetur ventrem; The Child will follow the condition of the Mother. Martia∣nus accounts all those for slaves by the Law of Nations, who are born of Bond-women. And Tacitus speaking of the Wife of Arminius a German Prince, who had been taken Prisoner by Germanicus, saith, That she had Ʋtrum servitio subjectum; meaning, that what∣soever Children were born of her were bond-slaves.

III. Whatsoever is done unto such is unpunish∣able.

The effects and consequences of this Right are infinite so that there is nothing so un∣lawful but the Lord may do it to his slave, as Seneca the Father notes* 1.290, there are no Torments but what may with impunity be imposed on them, nothing to be done but what they may be forced to do by all manner of rigour and severity; so that all kinds of cruelty may by the Law of Nations, without controul or appeal be exercised upon Captives, were it not that this licence is somewhat restrained by the Civil Law. It is universally indulged by all Nations, to the Lord to have power of life and death over his slave, saith Cajus the Lawyer; but he tells us withal, That the Roman Laws did limit other∣wise unbridled power within their own Territories. Quid non iustum Domino in servum? What may not the Lord do unto his slaves, saith Donatus upon Terence? yea,* 1.291 not only the person, but all that is taken with him are lawful prize, Ipse servus qui in potestate alte∣rius est, nihil suum potest habere; He that is a slave, saith Justinian,* 1.292 and under the pow∣er of another, can have right to nothing that was his before. So likewise Philo, He that is a

Captive loseth his right to all other things, no less than the power over himself.

IV. Even the things incor∣poreal of the slave are trans∣ferred to the Lord.

Hence then, their Opinion may be confuted, or at least restrained, who hold that things incorporeal cannot by the Law of Arms be acquired.* 1.293 Val. Maximus records it of Scipio Nasica, That whereas being Consul he was taken prisoner by the Carthaginians at Li∣para, and so by the Right of War had lost all; yet fortune afterwards smiling upon him, he recovered all, and was again created Consul. It is true, that primarily, and by it self, things incorporeal cannot by War be gained, but they may be lost as to the person whose they formerly were. But yet we must here except all things that do proceed from some sin∣gular propriety in the person taken, which by no means can be alienated, as the right of a Father to his Son, for such Rights, if they do not remain with the person are altogether extinct.

V. The reason why this Insti∣tuted.

Now all this unlimited Power is by the Law of Nations granted for no other Cause than that the Conquerour being allured by so many advantages might be willing to forbear that utmost cruelty which they may lawfully use by killing their Captives, either in the heat of fight, or afterwards in cold blood. The name of servant, as Pomponius tells us, did at first arise from the custom of Generals who sold their Captives, and thereby preserved them from being slain; (Servi quasi servati:) That they may be the more willing to for∣bear, I say, for it is no bargain or agreement, whereby they stand obliged to save them, if we respect the Law of Nations; but a perswasive argument drawn from profit, it be∣ing far more beneficial to the Conquerour to sell his Prisoner then to kill him. And therefore he hath the same power to transfer his Right in his Captive to another, as he hath to assign over unto others the Right and property he hath in any of his own Goods or Chattels. This Power is also extended to the Children that are born after Captivity, because if the Conquerour had used his power to the utmost, they had not been born. From whence it follows, That the Child that is born before that Captivity, in case he be not taken Prisoner, remains free. Therefore by the Law of Nations, the Children born of such Captives follow the Mothers condition, because their Chastity is not provided for by any Law, nor is there any strait guard kept upon them; and therefore no pre∣sumption how great soever is sufficient to prove who is the Father. And thus is that of Ʋlpian to be understood, Lex Naturae haec est, ut qui nascitur, sine legitimo matrimonio ma∣trem sequatur; The Law of Nature is this, That he that is born without lawfull marriage, should follow the condition of the Mother: that is, General custom grounded on some Natu∣ral Reason hath moulded this into a Law (* 1.294abusively sometimes so taken, as we have al∣ready elsewhere shewn) they that are born out of wedlock should retain the name and quality of the Mother, and not of the Father, because of the certainty of the one, and the uncertainty of the other. But that this unlimited Power over Captives was not in∣troduced by the general consent of Nations in vain, we may collect from the usual pra∣ctice of Civil Wars, wherein all Prisoners are commonly put to the sword, because they cannot be sold for slaves,* 1.295 which was well observed by Plutarch in the life of Otho; and by Tacitus, who speaking of the Captives taken at Cremona, saith, Irritam praedam militibus fecerat consensus Italiae; That it was agreed throughout all Italy, that no quarter should be given: whereby no booty came to the Souldiers by the sale of Prisoners. Moreover, whe∣ther the Prisoners taken should belong to the people, or to them that take them, must, by what hath been said of the spoil, be determined. For the Law of Nations hath in this case equalled the condition of men with goods: So Cajus the Lawyer, Those things that are taken from the Enemy are by the Law of Nations theirs that take them; so that even such as were free men are by this Law reduced into bondage.

VI. Whether such as are taken may fly.

Neither can I concur in Opinion with those Divines who hold, That Captives taken in an unjust War, or such as are born of them, are obliged in conscience not to make their escape, unless it be to their own Garrisons, for herein I believe they err; surely in this lies the difference, if they can fly and make it good to their own Garrisons, whilst the War lasts,* 1.296 by the Right of Postliminy they recover their liberty, and all things conse∣quent to it. Of M. Sergius Pliny reports, that being twice taken by Hanibal, he both times made his escape out of his chains. But in case they make their escape to others, or unto their own Country after the Peace made, being re-demanded they are to be deliver∣ed. But yet from hence it follows not, that the Captives themselves are bound in con∣science to return; for there are many Laws which bind only as to the outward judgement, which do not at all restrain the conscience; and such are these of War whereof we now discourse: neither is it much to the purpose to say, that the very nature of Dominion doth of it self induce such an obligation; because there being many kinds of Dominion, possible it is, that such there are as are of force only in humane judgement, and so long only as the coercive Power lasts, which is frequently seen in other kinds of Right. Such in some sort also is that Law that makes void some Testaments, because, forsooth, they want some formalities which the Civil Law requires; whereas the more probable Opini∣on is, that what is bequeathed by such a Testament, may with a good conscience be re∣tained,

so long (at least) as nothing appears to contradict it. And not much different is his Right, who hath according to the Civil Laws unfaithfully prescribed to anothers Estate; for by the judgment of those Laws, even this mans Title shall be defended, untill it be made void by another sentence of the same Law. And thus is that riddle of Ari∣stotles resolved, Is it not just (saith he) that every man should enjoy his own,* 1.297 but whatsoever the Judge hath according to his understanding decreed, is by Law confirmed (though in it self it be fa••se) therefore will the same thing be both just and unjust. But in this question of ours, there is no cause imaginable why the Nations should respect any other Right than that which is external, and meerly humane. For the Right of laying claim to a Captive, of forcing him, of binding him, and possessing what he hath, or can do, is of it self motive sufficient to perswade the Conquerours, that it is a greater advantage to them to keep them alive than to kill them. But in case this cannot move the Conquerours, surely, no obliga∣tion that can be laid upon the conscience can do it, which notwithstanding he may im∣pose, by requiring either his verbal or sacramental engagement, if he think it necessa∣ry: Yet if the Captive can make an escape, and carry with him some Goods,* 1.298 his Conscience can∣not be charged with theft, so as he carry away nothing but what was before his own. In such Laws as arise not out of natural equity, but are purposely made to avoid a greater mis∣chief, we must not rashly admit of such an interpretation, as makes that act to be sinfull, which is otherwise lawfull. Nihil interest quomodo captivus reversus est, utrum dimissus,* 1.299 an vi, aut fallacia potestatem hostium evaserit; It matters not much (saith Florentinus) which way a Captive gets loose from his enemy, whether he be freely dismist, or make his escape either by force or fallacy. Because the right of holding a man Captive is so a Right, that in an∣other sense, it is for the most part an injury; for which reason Paulus the Lawyer calls it, a Right as to some certain effects; but an injury as to the intrinsick nature of the thing it self. From whence this also appears, That a man being taken in an unjust War, and brought within the Power of the Enemy, cannot in his conscience be guilty of theft, though he do, as I said before, carry away with him somewhat that was his own; or though not his own, yet that is due unto him as the reward of his labour: If at least he have reserved any thing besides his sustenance, provided that he himself owe nothing un∣to either his Lord, or him from whom his Lord claims his Right unto him. Pertinent hereunto are those Testimonies of Irenaeus and Tertullian, concerning the departure of the Israelites out of Aegypt, and their carrying away their Goods with them;* 1.300 which fact Irenaeus seems to defend by the Law of Nature, as being but the recompence of so many years hard labour: for saith he, The Aegyptians were indebted unto the Hebrews, not only for their Goods, but for their lives. Tertullian also handling the same subject speakes thus, The Aegyptians demand of the Hebrews their vessels of Gold and Silver;* 1.301 the Hebrews on the other side alledge, That the Aegyptians owed them much more as due unto them for their long and hard service. Thus also Philo pleads for his own Countrey men,* 1.302 That they spoiled not the Aegyptians out of Covetousness, but first as the reward of their long labour, and then as a gentle mulct or punishment, far inferiour to their great oppression. Neither is it much to the purpose to say, that such an escape and taking away of Goods is usually severely punished, if the Prisoner be apprehended; because such, and far greater acts of injustice are usually done by men of Power against their Inferiours, Non quia aequa sunt, sed quia ipsis expedit; Not because they are just and equitable, but because they are for themselves ex∣pedient. Now whereas some Canons do prohibit any man from perswading any servant to forsake his Masters service: I answer,* 1.303 That in case such prohibition be referred to such Servants, as are deservedly punished with the loss of their Liberty, or have by some voluntary covenant or bargain made themselves servants, then it is just: but in case it be referred to such as are made slaves by the misfortune of an unjust War, or to such as are born of them; it only argues, that Christians ought to perswade Christians to Pati∣ence and Sufferance, rather than to such courses, which though lawfull, yet may give of∣fence unto others. In like manner, are those admonitions of the Apostles to Servants to be understood, unless we had rather say, that those admonitions seem only to perswade Servants to strict obedience whilst they do serve; which indeed is but consonant to Natu∣ral Equity, for their labour is but equivalent to their sustenance.

VII. Whether they may resist their Lords.

But whereas the same Divines hold, That a Captive ought not to resist his Lord in the execution of that external Power that he hath over him without injustice; therein I agree with them. But yet between those things which before I denied, and this that I here as∣sert, there is this manifest difference, That external Right which a Lord hath over his Slave, which consists not in a bare licence of doing what he pleaseth to him, but in the protection of the Laws for doing it, were altogether vain; if on the other side it were lawfull to resist it. For if it were lawfull for a Servant by force to resist his Lord or Ma∣ster, it would be lawfull for the same Servant to resist the Magistrate that defends his Ma∣ster, seeing that it is from the Law of Nations that that Magistrate ought to defend the Lord in that Right, and in the exercise of it. This Right therefore is like unto that

which we nave elsewhere granted unto the Supreme Magistrate in every City, whom forceably to resist is unlawfull, nay, impious. And therefore S^t Augustine unites these two Powers, saying, That Subjects should so bear with their Princes, and Servants with their Masters, that in the exercise of their patience they may preserve their temporal estates, and hope after eternal.

VIII. This not in force in all Na∣tions.

But this also we must observe, That even this Law of Nations as to Captives hath not at all times, nor amongst all Nations been received; though the Roman Lawyers are pleased so to understand it, taking perhaps the Customs of those Countries which were then most known to them, for the Universal Custom of all Nations. Among the Hebrews (who did at little mix their Customs with those of other Nations, as they did themselves in Mar∣riages) there were places of refuge for Slaves,* 1.304 namely, for such as became such by fate or misfortune, rather than by any fault of their own; whereupon seems to be grounded that priviledge which among the Francks is given unto Slaves, to proclaim themselves at Liberty,* 1.305 which is also now indulged, not only to such as are taken in the War, but to all other Slaves whatsoever.

IX. Nor now a∣mongst Chri∣stians, and what is intro∣duced in its stead.

But even among Christians it is universally agreed, That being at War amongst them∣selves, they that are taken Prisoners are not made Slaves so as to sell them, or to enforce them to servile offices, or to impose upon them such things as they usually do on Slaves: And there is good reason for it, for they either are, or at least should be better instructed in the Principles of Christian Charity, than not to abstain from the shedding the blood of those whom misfortune only hath made miserable, unless it be granted them, that they may be permitted to use a little less cruelty. It is a Custom generally received among Nations of the same Religion, That what Goods or Chattels soever are taken in War, are lawful prize; And for men taken in War, they neither make them Slaves, nor kill them in cold blood, as Gre∣goras testifies.* 1.306 Boërius also makes mention of this Custom, whereunto he adds, That it is observed in France, in England, and in Spain, That in case a Duke, a Baron, or an Earl be taken in War, they are not their Prisoners that take them, but the Prince's that main∣tains the War. And this at least (though but a small matter) hath Christian Religion brought to perfection,* 1.307 which Socrates attempted to have done among the Grecians but could not. The same Custom which Christians observe among themselves, do the Ma∣humetans likewise observe among themselves; yet notwithstanding even among Chri∣stians this custom still remains entire, That such as are taken in the Wars are kept in safe custody till their ransom be paid, which commonly is set as the Conquerour pleaseth, unless otherwise agreed before hand: which Right of keeping Prisoners is usually grant∣ed to those that take them, unless they be persons of honour, who are always kept and maintained at the charge of the Common-wealth, or of the Supreme Magistrate, accord∣ing to the Custom of Nations.

CHAP. VIII. Of Empire over the Vanquished in War.

• I. That a Civil Empire, whether in a King or a people, may be acquired by War, and what the effects are of such an acquisition.
• II. Such an Empire may be gained over a people as is merely despotical, and then they cease to be a City.
• III. Sometimes a mixt Government is acquired.
• IV. Sometimes even the incorporeal things of the people may be acquired by War, where al∣so is handled the Bond given by the Thessa∣lians to the Thebans, forgiven by Alexan∣der.

I. That the Civil Empire, as well in a King as people, may be gained by War.

IT is no marvel that he who can bring into subjection every particular person, can also subdue the Body Politick, whether it be a City, or part of a City, and whether that subjection be merely civil, or merely despotical, or mixt. This Argument we shall find used by Seneca in that Controversie which is de Olynthio, where he brings in one pleading thus, He is my Slave whom I bought by the right of War; and very expedient it is for you, O ye Athenians, not only to acknowledge my Title to be just, but to defend it; otherwise not∣withstanding all your great Conquests, your Empire also must be confined within your ancient Ter∣ritories. Wherefore Tertullian acknowledgeth, That Empires are gained by Armes, but enlarged by Conquests. So likewise Quintilian, Kingdoms, Nations, and the Bounds of Cities and Countries, are determined by the Rights of War. Alexander in Curtius claims by this Right, saying, That Laws are usually given by the Conquerour, and received by the Conquered. Thus Minio in his Oration to the Romans,* 1.308 Why do ye Romans send every year your Praetor with the Ensigns of your Empire, the Rods and Axes into Syracuse, and other the Grecian Cities in Sicily; for which ye can give no other reason but this, That having con∣quered them by your Armes, you impose upon them what Laws you please.* 1.309 Ariovistus in Caesar's Commentaries saith, That by the Law of Armes, the Conquerour may govern the Conquered in what manner he pleaseth; and that the custom of the Romans was to govern those Cities which they had by their Armes subdued, not after other mens prescriptions, but according to their own will and pleasure. Justine likewise out of Trogus tells us, That before Ninus,* 1.310 Princes that made War, sought not Empire but Glory; and therefore were contented with the honour of the Victory, but sought not to enlarge their Kingdoms: and that this Ninus was the first that ever incroached upon another mans dominions, and from him it became a custom. Bocchus in Salust pleads, That he took up Arms only to defend himself; for that part of Numidia, from whence he had driven Jugurtha, was made his by the Law of Armes. But a Right may be gained by a Conquerour, either so far only as it was in the King or some o∣ther Governour; and then he succeeds in his Right only, and no farther. So Alexander after the Battel at Gaugamela was saluted King of Asia. And the Romans also claimed unto themselves all that was Syphax's by the Right of War. But when the Huns plead∣ed to the Romans, That the Country of the Gepidae was theirs, because they had taken their King Prisoner: the Romans denied it, because the Gepidae were governed by a Prince rather than by a King; for that the Kingdom was not Patrimonial. And therefore they con∣clude, That he could not lose more than what was his own. Or it may also be gained, as it is in the people; and then the Conquerour hath as much power to alienate it as the people had; and thus do some Kingdoms become Patrimonial, as I have elsewhere said.* 1.311 Thus the Persians in Menander plead for the Territories of the City Daras, For, say they, since the City Daras it self is by the Right of War subdued by us, it is but reasonable that what belonged to that City should likewise be ours.* 1.312 So Belisarius having conquered the Vandals, would have had Lilybaeum in Sicily yielded up to the Romans; because, as they pre∣tended, the Goths had before given it to the Vandals, which the Goths denied.

II. Such an Em∣pire may be gained over the people as is merely de∣spotical.

Or an Empire may be yet more absolutely gained. For such a Government may by War be gained, as that which was before a City, may cease to be any more a City, but be rather reduced (as it were) into a Family; which may be done either by adding it unto ano∣ther City, as Kingdoms were by the Romans annexed to their Empire as Provinces; or by annexing it to no other City, (but by destroying its Charter, and nulling the Govern∣ment thereof:) As for example, When a King maintaining the War at his own proper charge, doth so enslave the people, that in his Government over them he minds his own private gain and interest only, but neither their profit nor safety; which kind of Govern∣ment is Despotical, and not Civil. Aristotle thus distinguished them, Of Empire,* 1.313 saith he, some are altogether fitted to the profit of the Prince, others for the profit and safety of the Subjects; this is proper to Monarchy, that to Tyranny. Now the people that are held un∣der this kind of Government, are no longer Citizens, but a multitude of Servants in a great Family. It was well said of Anaxandrida,

—Servorum nulla est usquam Civitas.

A multitude of Slaves can never constitute a City. Which distinction is allowed of by Taci∣tus,* 1.314 He did not carry himself, saith he, in his Government as a Lord over his Slaves, but as be∣ing chief among his Fellow Citizens. So Xenophon of Agesilaus, What Cities soever he reduced under his obedie••ce, he made free by exempting them from the slavery which Captives pay unto their Lord, and by contenting himself with that obedience that a free people do willingly yield unto their natural Prince.

III. A mixt Go∣vernment is sometimes got by War.

Whence we may understand the nature of a mixt Monarchy, that is, between that which is Despotical, and that which is Civil; as namely, when our servitude is mixt with some kind of personal liberty. Thus we read, that to some people the use of Armes are forbidden by the Conquerour, and that no Iron shall be wrought into any thing, but such Instruments only as are necessary for ploughing the Earth, and such like. So some people being conquered, are enforced to change their language, others to alter the whole course of their lives, and the like.

IV. That even the incorporeal things of the people, may be by a War gain∣ed.

Now as whatsoever any particular Prisoner had when he was taken, was by the Law of Arms his or theirs that took him; so whatsoever belongs to the people in general is his or theirs that subdue them, if they will take it. For what Livy saith of such as surrender them∣selves, namely, All are given up to the Conquerour; so that what he will take to himself, and wherein and how far forth he will punish the Conquered, is wholly in his own power. The very same in a Solemn War may be said of those that are conquered. Thus Polybius, They that yield themselves up to the Romans,* 1.315 do yield up in the first place their Country, and what Towns and Cities soever are therein, together with all their Men and Women that are in them; then all their Rivers and Ports, and generally all things sacred and religious: so that the Romans are Lords of all, and they that thus surrender themselves have nothing left. And the self same Right hath the Conquerour over those that are actually conquered in a solemn War. For dedition doth but voluntarily yield up that which otherwise would be taken away by force. Hannibal encourageth his Souldiers, being ready for Battel, with this Argument, Whatsoever the Romans have by so many Conquests got and heaped up, shall together with themselves be ours af∣ter the Victory. Thus all that Mithridates had by force of Armes added to his own, Pom∣pey by subduing him annexed to the Roman Empire; wherefore even those incorporeal Right which formerly belonged to the whole Body of the people, are now by the Law of Armes the Conquerours, so far forth as he pleaseth. Thus Alba being subdued, what Rights soever the Albans enjoyed were claimed by the Romans. Whence it follows, That the Thessalians stood fully discharged of the hundred Talents for which they stood bound to the Thebans, when Alexander the Great conquering the Thebans, had by the Right of Conquest forgiven the Debt. Neither is that altogether true that Quintilian urgeth in the defence of the Thebans, namely, That that only is the Conquerours which he can lay hold on. But that Right which is incorporeal cannot be apprehended by any mans hand; and again, That the condition of an Heir is one thing, and that of a Conquerour is another; because to the Heir may pass the Right, but to the Conquerour the thing: For he that is Master of the persons, is also Master of the Estate, and of all the rights belonging to the persons. He that is himself possest as a Slave, cannot be said to possess any thing to himself; neither can he have any thing in his power to dispose of, who hath no power to dispose of himself: yea, though the Conquerour do grant unto the conquered Jus Civitatis, The Right of being a City; yet may he take away and reserve to himself whatsoever he pleaseth out of what was the Cities. It is in his own power to prescribe what bounds he will to his own bounty. Thus Caesar, in imitation of that Fact of Alexander's to the Thessalians, forgave a very great Debt to the Dyrrhachines, which they owed to another City of the adverse part. But here it might have been objected, That that War of Caesar's was not of the same kind with that concerning which this Law of Nations was instituted. So also we read that Mark Anthony commanded the Tyrians to restore unto the Jews what belonged unto them, as not being granted unto them by the Roman Senate, and whereof they were possest before the War made with Cassius; as Josephus relates it.

CHAP. IX. Of the Right of those that return out of Captivity.

• I. The original of the word Postliminium.
• II. In what places this Right takes place.
• III. By this Right of Postliminy, some things are said to return, and some things to be re∣ceived.
• IV. This Right appertains both to War and Peace, and what, if in the articles of Peace nothing be said.
• V. When a freeman during the War, may re∣turn and be admitted by this Right.
• VI. What Rights he may receive, and what he may not.
• VII. All Rights are recoverable from him.
• VIII. Why they that yield themselves are not admitted to this Right of Postliminy.
• IX. When a people may obtain this Right.
• X. In those that return by Postliminy, what things are required by the Civil Law.
• XI. How servants are received by Postliminy, how fugitives; and how they are received that are ••edeemed.
• XII. Whether a people formerly subjected, may recover their freedom by Postliminy.
• XIII. That Lands may be received by Post∣liminy.
• XIV. What difference was anciently made be∣tween things moveable.
• XV. What the Law now determines concern∣ing things moveable.
• XVI. What things may be received, that need not this Right of Post••iminy.
• XVII. That the Civil Law may change some∣things among their own subjects.
• XVIII. How Postliminy was observed between those that were not Enemies.
• XIX. When this Right may be now in force.

I. Postliminium what it is.

THERE are none of our modern Lawyers, who have written any thing solidly, either concerning things taken from the Enemy, or concerning the Rights due unto them, who having been taken Prisoners, yet have either by favour, force, or fraud, escaped and got home again. The Ancient Romans have handled this Questi∣on somewhat more accurately, but yet oft-times so confusedly, that the Reader cannot di∣stinguish between what is due by the Roman Civil Law, and what is due by the Law of Nations. Concerning the word Postliminium, that opinion of Servius is to be exploded, who held, that the latter part of the word signified nothing. That of Scaevola pleaseth better, who makes it a compound word, of post which signifies a return, or coming from be∣yond, and Limen, or Limes, which s••gnifies properly the threshold of an House, or the utmost bounds or frontiers of a Country: for Limen and Limes, though they differ no less in flection, than in termination, as Materia and Materies; yet are they both deri∣ved from that old Verb Limo, which signifies transverse or overthwart,* 1.316 as Servius upon Virgil, and Donatus upon Terence observe; from whence Limes oculis aliquem intueri, is, to look a squint upon a man: Though by the latter use of the word, Limen be referred to things private, and Limes to things publick, as to the bounds or borders of Kingdoms. For, as Isidore notes, all oblique or cross-ways, the Ancients called Lima: from whence, the thresholds of doors over which we go in and out, are called Limina ostiorum. So the An∣cients when they banished any man, were said eliminare, to thrust him beyond their marches; and banishment they called Eliminium, a thrusting out of their bounds and Territories.

II.

Postliminy therefore is a Right that ariseth unto a man that was a Captive upon his return from Captivity; that is, upon his entring within the Frontiers of his own Coun∣try. So Pomponius, He is said to be returned out of Captivity that begins to be with∣in our own Garrisons; or as Paulus saith, that enters within the bounds of our Territories. But by a parity of reason, it is by the general consent of Nations grant∣ed, That the Right of Postliminy takes place, as soon as the person that was a Cap∣tive, or any other thing that is capable of this Right, shall come within the Guards or Garrisons of our friends and Associates, as Pomponius speaks; or as Paulus expounds it by way of example, as soon as he shall enter into any Garrison that belongs unto such a King or State, as are our friends and companions in the same War. For so indeed are these words (Friends and Associates) here to be understood, not of any Nation or King with whom we are at peace, but of such only as are so Confederate with us that they are par∣ties in the same War, into whose Garrisons whosoever enters out of Captivity, shall en∣joy his former Rights, and be defended upon the publick account. It matters not much whether they that so return are men or things, or whether they come into our Garrisons, or the Garrisons of our Associates: But in case they that are taken Captives, shall fly in∣to the Dominions of our Neighbour King, who though at Peace with us, is not associated with us in the same War, they shall not change their condition of being Prisoners; unless it were before so expresly agreed, as it was between the Romans and the Carthaginians in their second League, That if any of the friends of the Romans, being taken by the Car∣thaginians,

could escape out of any peoples Territories that were friends to the Romans, into any of their Ports or Cities that were Subjects to the Romans, they might enjoy their liberty;* 1.317 the like provision being made for the friends of the Carthaginians. And there∣fore when some of the Romans, being taken in the second Punick War, were sold by way of Traffick into Greece; they were not admitted to enjoy this Right of Postliminy, because the Grecians in that War stood Neuters: and therefore it was necessary that they should be first ransomed before they could be set at liberty; yea, and although Flaminius, having conquered King Philip, had set all the Cities of Greece at liberty, yet would he not take away from their Masters by force those Roman Captives, which had been for∣merly sold by the Carthaginians unto the Grecians; but the Achaians to gratifie him for their liberty, bought Twelve hundred of them who were dispersed though Greece, and presented them to Flaminius, who received them as a Present of great value. So did the Rhodians buy the Athenian Captives,* 1.318 taken in the War that King Philip made in Greece, and frankly restored them to the Athenians. And in Homer we read of divers persons taken in War, that were sold into such Countries that were in Peace.

III. Some things return, and some are re∣ceived by the Right of Post∣liminy.

The Ancient Romans did always account those that were received out of Captivity as freemen. Gallus Aelius in his first Book of the significations of Law Terms, saith, That he who being free of one City did voluntarily depart to another, and afterwards did return back into that City, whereof he was at the first made free, was said to be Postliminio recep∣tus; that is, admitted to his old freedom by that Law, which provides for such as return out of Captivity. As also in case a servant being taken from us, and carried Captive into our Enemies Garrison, should afterwards return unto us, he may by this Law of Postliminy place himself under his old Master. So Horses, Mules, and Ships, by a parity of reason, had the same right of reception as servants. And look what kind of things do teturn unto us by this right, the very same may return from us to our Enemies. But the Ancient Roman Lawyers have more discreetly admitted but of two sorts of Postliminy; as namely, when we ei∣ther return, or receive something that is returned.

IV. It is of use as well in Peace as War.

Neither may we altogether reject that of Trophonius; namely that this Right of re∣turning out of Captivity into Freedom, may be of use as well in Peace as War, though in a little different sense than as Pomponius expresseth it. This Right of Postliminy in Peace, appertains unto those who were not conquered in War by force of Arms; but were through misfortune surprised within the Enemies Territories, when the War unex∣pectedly brake forth. But to other Captives there belongs no such Right in times of Peace, unless it be otherwise agreed on by both parties at the making of the Peace, as it was at the conclusion of the War between Jonathan and Bacchides recorded by Josephus.* 1.319 Polybius among other Articles of the Peace concluded and agreed on between King Philip and Antiochus, recites this, That all Prisoners taken on either side (the Aetolians only ex∣cepted) should be set at liberty. Thus we read that Probus made Peace with the Van∣dals and Burgundians, upon this condition, That all the prey they had taken, together with the Prisoners should be restored. Nay sometimes it is agreed, That not only those Prisoners that belong to private men, but those that belong to the Commonwealth are to be dis∣charged, as Thucydides testifies. Now this is plainly evinced, as well by the subsequent reason, as by its opposite member, The Peace was concluded, and the Prisoners released, for, saith Zonaras, so it was agreed. It was then by vertue of the agreement, and not simply by their making of Peace, that their Captives were dismist. So Pomponius, If the Captive concerning whom it was agreed in the Articles of the Peace, that he might return home, shall notwithstanding chuse to remain with the Enemy, he shall not afterwards claim this right of Postliminy. So also Paulus, If a Prisoner taken in War when the Peace is made, shall fly away and come home, he shall be made to return back to him, who in the War took him Prisoner; because in the Articles of Peace it was not mentioned, that the Prisoners should be released.* 1.320 Now the reason why the Romans seemed so to neglect their Prisoners, is because they would have them to place all their hopes of returning back in their valour, rather than in a Peace. For thus doth Livy testifie of them, That Rome was a City, that of old was in Captivos minime indulgens, very regardless of their Captives. But this reason being pro∣per only to the Romans, could not of it self constitute the Law of Nations; it might notwithstanding serve as one cause amongst others, for which the Romans did the more willingly embrace that Law which was before introduced by other Nations. But a tru∣er reason may be this, because all Princes and States making War would willingly be believed that there Cause was just; and on the contrary, that they that took Arms against them did the wrong. Now whilst both parties are thus perswaded, it would not be safe for any other Prince or State that would live in peace to judge between them; therefore they conclude it better to sit still, and to esteem whatsoever should be done in that War to be just, and so the Prisoners on either side taken in actual Armes to be lawfully taken. But now against those Prisoners, that have been by misfortune surprized through the suddain eruption of the War, no such thing can be alledged; for they have neither advised nor

attempted any ••urt to us. Nevertheless to weaken the power of the enemy, because pos∣sible it is that they might be inticed to injure us, it hath been thought not unjust to detain them during the War; but the War being ended, there can be nothing alledged why they should not be released: and therefore it is generally consented unto by all Nations, That such Prisoners, when the Peace is made, should be enlarged, as being confest by both par∣ties innocent. But as to other Prisoners, every man that usurps a Right over them, is wil∣ling that he should be believed that he hath justly gained them, unless by some preceding Agreements he be limited. And for this Cause neither Captives nor any thing else taken in War, is to be restored in Peace, unless it be so exprest in the Articles of Peace, because the Conquerour would be thought to have a just Title to them, which to contradict, were to renew the War: and therefore Totilas in Procopius charges Pelagius, who was sent unto him from the Romans, that he should not mention the releasing of the Sicilian Captives; urging that it was not equitable that the Romans should redeliver their Fellow-Souldiers to their old Masters. Wherefore the Agreement brought by Quintilian in the behalf of the Th••bans, is rather witty than solid, namely, That Prisoners it they can make their escape into their own Country, the War being ended, are to be reckoned as Freemen; because what is gotten by force, is no longer ours than we can keep it by force. Concerning those that make their escapes after the Peace is concluded, we have hitherto treated: now in the time of War they are said to return by Postliminy to their former freedom, who were free before they were taken Captives in the War; but they are said to be received, who before were not free, as Servants and other things.

V. The War last∣ing, when a Freeman may be said to re∣turn.

He that was a Free-man returns so by this Right, in case he return to this purpose, That he may follow the Fortune of that City whereunto he returns, as Trophoninus delivers it; because, as the Servant that is to be made free, ought first to be sui juris, of and for him∣self, that so his act may be voluntary: so he that would be admitted as a Citizen after ca∣ptivity, must resolve to incorporate himself with that City, and become one with it, or as a Member of it. Moreover, Whether the Captive be retaken by force of Armes, or whe∣ther he have made his escape by fraud, it is all one, as Florentinus observes; and the Case is the same if he be freely dismiss'd by the Enemy. But what if he be sold by way of Con∣tract to another, and that he thence escape into his own Country? This Question is hand∣led by Seneca in his Controversie concerning the Olynthians, whom Parrhasius bought. For when the Decree was past by the Athenians, whereby it was ordained, That the Olyn∣thians should be free, he made this doubt, Whether by that Decree it was meant that they might be made free; or that they were adjudged thereby to be free: which latter opinion was the truest. Thus Childubius in Procopius pleaded, That being returned into his own Coun∣try, he was by the Law thenceforth a free man.

VI. What Rights he may receive, and what not.

But a Freeman being returned home, doth not only recover his own freedom, but all things else that were his in any Nation that is at peace, whether they are things corporeal or incorporeal; because, though people that are at peace, as they do not enquire into the justness of the War, but take every thing that is done to the Captive to be just: so when they see the Captive to be at liberty, they dispute not the manner how, but take it as granted that he was released justly, whereby they shew themselves indifferent to both par∣ties. Wherefore he that by the Law of Arms is possest of a Captive, hath not an abso∣lute and indubitable Right unto all things that belong to him. For it is possible that his right may surcease without or against his will, that if the Prisoner can make his escape, and return into his own Country; for then just so as he loseth his right to the Man, doth he lose his title to those Goods which were his. But what if those Goods be alienated, Whe∣ther shall he that derived his title to them from him who at that time was by the right of War the Owner of them, be defended by the Law of Nations, or shall the same thing so alie∣nated be recovered? Those Goods, I mean, that are extant among such people as stand Neu∣ters in the War. Here then we are to distinguish between such things as may return by Postliminy, and such as are uncapable of this right; the difference whereof we shall pre∣sently explain, That the former may appear to be alienated during their Cause only, and under this Condition, That the person be still held in custody: these latter, simply and ab∣solutely. By things alienated, I understand even those things that are given or recei∣ved.

VII. All Rights a∣gainst him are restored.

As he that returns home hath a Right unto all things by the Law, that were his before he was taken; so are the Laws in force against him as fully as if he had never been under the power of the Enemy.

VIII. Why they that yield them∣selves are not capable of 〈◊〉〈◊〉 Right.

But unto this Rule, as it concerns such as are Freemen, Paulus allows of this exception, Postliminio carent, qui Armis victi hostibus se dederant; They that being conquered by Arms had yielded themselves up to the will of their enemies, have no benefit by their return home. The rea∣son whereof is, Because all agreements with enemies are, by the Law of Nations, to be observed, as we shall shew anon. Neither is this Right of Postliminy to be admitted a∣gainst those agreements; and therefore those Romans in Gellius,* 1.321 who being taken by the

Carthaginians, and sent back to Rome to procure exchanges, did acknowledge, That the Right of Postliminy was not due unto them, because they were bound by Oath to return. From wh••nce also it is rightly observed by Paulus, That during the time of a truce there is no Right claimed by Postliminy; yet Modestinus is of opinion, That if they that delivered themselves up to their enemies were bound by no Covenant or Promise made, they might be admitted to their freedom by Postliminy.

IX. How a people may obtain this Right.

That which hath been said of particular persons, may also be said of Cities and people, That if they were free they may recover their freedom. If the power of their Friends and Associates be able by fo••ce of A••ms to release them from the power of their enemies. But if the very Body of the people that constituted that City be dissolved, I believe that they that succeed are not to be accounted the same people; neither are those things that formerly belonged to that City to be restored unto them by this Right of Postliminy, accor∣ding to the Right of Nations; because a Nation, like a Ship, by the dissolution of its parts, doth absolutely perish: for that its whole Nature consists in the perpetual Conjunction of all its M••mbers. Wherefore it was not the same City of Saguntum, though the place where it formerly stood were restored unto the ancient Inhabitants eight years after its dis∣solution. Neither was Thebes the same City after that Alexander had sold the Citizens for Slaves: whence it follows, That what the Thessalians owed unto the Thebans before such dissolution, could not justly be claimed by those Thebans by Postliminy; and that for a double reason, First, Because they were then a new people; secondly, Because Alexander whilst he was Lord over them, had a power to alienate that Right, and accordingly had done it: and lastly, A Debt is not to be reckoned among those things which return by Post∣liminy. Not much unlike to what we have said concerning Cities, is that which the anci∣ent Roman Laws concluded of Marriages, namely, That they were by captivity dissolved, neither could they be restored by postliminy, but must be redintigrated by the first consent of both parties. But it is otherwise among Christians, witness that of Pope Leo unto Ni∣cetas, Bishop of Aquileia concerning such Marriages, namely, That as in Slaves or Fields, or even in Houses and Possessions, the right and title of them is preserved for those that are Captives, in case they shall return out of captivity; so also in Wedlock, if either party be married to another, let them be reformed. See what Hincmar hath written to this purpose in his Tract concerning the Divorce of Lotharius and Terberga, to the thirteenth Interrogatory; and the An∣swer of Pope Stephen, in the second Tome and nineteenth Chapter of the Councils of France.

X. To those that return, what Rights arise from the Ci∣vil Law.

By what hath been already said, it is no hard matter to understand what manner of right by the Law of Nations, Postliminy gives to free men. Moreover, this very same right may by the Civil Law, so far as it belongs to things agitated within the City, be both restrain∣ed by adding some exceptions or conditions, and also enlarged unto other profits and ad∣vantages, as occasion serves. As by the Roman Civil Law Fugitives are exempted out of the number of those that were capable of this right; so were also the Sons of a Family, over whom the Father was conceived not to have lost that Paternal power and authority which was peculiar to the Romans; and that for this reason, as Paulus observes, Because to Roman Parents their Military Discipline was ever dearer than their own Children; whereunto agrees that which Cicero records of Manlius, That he strictly upheld the Disci∣pline of the Roman Empire, though to his own grief, that so he might the better provide for the safety of the City, wherein was also bound up his own; which made him prefer the Sovereign Right of Majesty, which was then in himself, before the bonds of Nature, or the tenderness of a Fa∣ther towards his own Son. Again, some diminution of this Right of Postliminy, is that which was ordained, first, by the Athenians, and afterwards by the Romans, namely, Ʋt qui redemptus est ab hostibus, Redemptori serviat donec pretium reddiderit; That he that was re∣deemed, should serve his Redeemer until he should have repaid his ransome. But this was made in favour to the poor Captives, lest if there should be no provision made for the recovery of the money so paid, many Prisoners should have been left in perpetual slavery among their enemies. But yet even this very slavery was many ways mitigated by the Roman Laws, and at length by the last Law of Justinian, it was limited to five years service; neither could the money paid for his redemption be recoverable after the death of the party re∣deemed. So also by any Contract of Marriage between the person redeemed, and the person redeeming, it was adjudged to be forgiven. So if it were a Woman that was re∣deemed, if the Redeemer did prostitute her Body, the ransome was lost. There were many other Laws made among the Romans in favour to those that would redeem Prisoners, and to punish their Kinsmen for neglecting them. Again, this Right of Postliminy was by the Civil Law much enlarged, in that not only those Rights in Postliminy which are al∣lowed of by the Law of Nations, are granted unto him that so returns; but generally all things and all Rights are as intirely his, as if he had never been within the power of the enemy. And this was also the Attick Law: for as we read in Dion Prusaeensis, A certain man pretending to be the Son of Callias, who had been taken Prisoner in the Slaughter at

Acanthus, and, as he said, been kept as a Prisoner in Thrace, when he had made his escape to Athens, claimed by Postliminy his inheritance from those that then had the possession thereof after his Father; we do not read that any thing was pleaded against his Right, only it came in issue, Whether he were the Son of Callias, or not. The same Authour likewise relates, That the Messenians after long captivity, at length returning, received both their liberty and Country. Yea, and those things which either by usucapion or re∣demption seemed to be taken away out of the Goods, or through disuse, to be deserted, are all of them recovered by a Rescissory Action. For under the Edict of making restitu∣tion to Ancestors, he also who is under the power of Enemies, is comprehended. Nay farther; the Cornelian Law provides for the Heirs of such as dye in captivity, and con∣serves all their Goods as lawfully as if he that returned not, were at that very time when he was taken, dead. Now were it not for these Civil Laws, without doubt as soon as any man were taken Prisoner by the enemy, his Goods would presently be theirs that had them in possession; because, Qui apud hostes est, pro nullo habetur; He that is under the ene∣mies power is held for none. And then, if he that was taken should return, he should receive nothing but such things as by the Law of Nations were due unto him by Postliminy. But that the Goods of a Captive were confiscate and brought into the Treasury, in case he had no Heir, was a Law peculiar to the Romans only. Hitherto we have treated of things that return, now we shall speak of such things as are received by Postliminy.

XI. How Servants are received by Postliminy, how Fugitives, and how they that are redee∣med.

Amongst which, in the first place, are Bondmen and Bondwomen, yea even such oft∣times as have been alienated, and such as have been set at liberty by the enemy; because (as it is very well noted by Tryphoninus) it is not just that his former Master being our Citi¦zen, should be damnified by the Right of an Enemy. By an Edict of King Theuderick it was ordained, That Servants and Tenants being taken by the enemy, and returning home, should be restored to their own Lords, if they were not before bought by some other from the enemy by way of traffick. But by the wise Gothick Law, a Servant recovered by War was restored to his Master, he paying unto him that took him the third part of his just price. But in case the Servant were sold by the Enemy, then was the Lord to pay the full price for which he was sold with some advantage. Therefore that a Servant may be capable of reception, it is necessary that his old Master should be either actually possest of him, or at least that the Servant be where he may easily have him, if he so pleaseth. And therefore whereas in other things it may suffice, That they are brought within the Bounds of our own Terri∣tories, this is not sufficient in a Servant to receive the right of Postliminy, unless it be also made known to his Master that he is there. For as Paulus saith, If he lye sculking in Rome, and will not be seen nor known to be there, he is not yet received by this Law. And as herein Servants differ from things inanimate, so do they from the case of a Freeman in this, That it is not required in them to make them capable of being received, that they should return with an intent to follow the fortune of the City whereunto they return; for this is required from him only that is to receive his own freedom, and not of him that is to be received by another.* 1.322 For every man hath a free power to make himself a Member of what City he pleaseth, but not of the Right of Dominion. Neither do the Roman Laws exempt Fu∣gitive* 1.323 Servants from this right of reception: for even in these may their old Masters claim their Right, as Paulus notes; lest if we should admit the contrary, it should prove injuri∣ous not to the Servant, who nevertheless is still to remain a Servant, but to the Master who would want his service. But generally, concerning such Captives as are redeemed by the valour of Souldiers, that may be truly said by their Generals, which some would so wrest, as if it were meant of all things, Receptos eos non captos judicare debemus, & Militem nostrum defensorem eorum decet esse non dominum; We are to esteem of these not as taken, but re∣ceived, whom we ought rather to defend and protect, than insult over. Those Captives that are ransomed from the enemy, are by the Roman Laws theirs that redeem them; but the Summ paid being tendered, they are understood to be by Postliminy received. But by the more recent Laws some things have been changed; and that Servants being taken may be encouraged to return, they now propose present liberty to such as have been maimed in their service, and to the rest after five years, as appears by their Military Laws, collected by Rufus.

XII. Whether a people, being subjected by a∣nother, may be received by Postliminy.

But unto us (that are Dutch-men) this Question is more pertinent, Whether those peo∣ple that were once subjected to the power of another Prince, may return back to their for∣mer state and condition; which will admit of a Dispute, in case not he whose the Empire had been, but some other of their Associates, had recovered them from the enemy, where∣unto the same Answer, I conceive, may serve that was before given concerning Servants, unless by some Social League it be otherwise agreed.

X••••I. Whether lands may be said to be received.

Among things that are received by this Right of Postliminy, the first that offer them∣selves are Lands; whereof Pomponius speaks thus, Expulsis Hostibus ex Agris quos ceperint, Dominia eorum ad priores Dominos redeunt; The Enemy being driven out, the Lands re∣turn to their former Owners. Now the Enemy is then said to be driven out, when it

appears plainly that they are not able to recover it again. Thus the Island Aegina which the Lacedemonians took from the Athenians, they restored to their Associates who were the Ancient Lords thereof.* 1.324 And the Goths and Vandals being expelled; Justinian, and the Emperours succeeding, restored the Lands unto the Heirs of those who anciently possest it, notwithstanding those prescriptions which in other cases the Roman Laws did admit of against them. The very same was confirmed by a Law made by Honorius, who though Spain had been in the possession of the Vandals for Three hundred Years,* 1.325 yet would not permit that any prescription should be pleaded in Barr against the Ancient occupants,* 1.326 as Procopius testifies; which Law we find also recited in the Council of Sivil, where this is added as the reason, Non enim erit objicienda praescriptio temporis, ubi necessi∣tas interest hostilitatis; For no prescription of time is to be pleaded which is enforced by open hostility. Now look what Right they have to the Lands, the same also they have to every thing that is affixt to the soil; for even those places, which had been formerly held as Sacred or Religious, being taken by Enemies if they do escape that calamity; they al∣so as if returned by a kind of Postliminy, shall be restored to their former condition, as Pomponius notes. Wherewith agrees that of Cicero concerning Diana in Segesta, P. A∣fricani virtute Religonem simul cum loco recuperavit; By the valour of Scipio Africanus, Di∣ana recovered both her Temple and worship: wherefore the fruits and profits of the ground thus received, are likewise to be restored, according to what Pomponius writes concern∣ing Lands first drowned, and afterwards recovered. So in Spain it is provided by a Law, that as well the honour and dignity, as all the hereditary jurisdictions thereunto belong∣ing, may return by Postliminy; the greater at any time, the lesser if claim be laid un∣to them within four Years after their reception, unless it be some strong fort, which if lost and recovered again is the Kings.

XIV. What diffe∣rence was an∣ciently made between things moveable.

Concerning moveables the general rule is quite contrary; for they do not return by Postliminy, but are utterly lost, as being lawful prize, and may therefore be bought and sold; wheresoever they are found, they are adjudged his that bought them: nei∣ther hath the first owner any Right at all to them, though he find them either abroad a∣mong Neuters, or at home in his own Country. But from this general rule we find, that in Ancient times, such things as were of use in War, were excepted; which seems to be agreed unto by the Nations for this reason, that the hopes of recovering such things to themselves, might render them the more cheerful and industrious in regaining them. For the Laws of most Cities in those times were made for the encouragement of valour, and in favour to military affairs, wherefore their consent was easily gained. What things were accounted useful in War we have already summed up out of Gallus Aelius, but we find them more accurately set down, as well by Cicero in his Topicks, as by Modestinus: As, namely, Ships that are long and fit for burden, but not such as are made for plea∣sure; Mules, but such as are accustomed to the Pack-Saddle; Horses and Mares, but such as will abide the Bit, and are fit for service: Armes also and Apparel are of necessary use in War, but these do not return by Postliminy; because they were thought to merit no favour at all, who would suffer their Weapons and Garments to be taken from them: nay, it was accounted as a crime that deserved punishment, as may eve∣ry where appear in Histories. And herein we may observe the difference they made between Horses and Armes; the one being capable of reception, the other not; because possible it was that an Horse may break loose of himself, and so fall within the Enemies power, without any default of his Rider, but so could not Arms. And this difference between moveables seems to have continued in use from the Goths until Boëtius li∣ved, who expounding Cicero's Topicks, seems to speak of this Right, as if it were in force at that Day.

XV. What at this Day.

But in these latter times, if not before, this difference is taken away; for now no moveables do return by Postliminy, as hath been observed by those who are most ex∣pert in the Customs of Nations; and the same Custome is for Ships, as we may perceive in many places.

XVI. What things are received that need no Postliminy.

But those things, which though taken by the Enemy, yet were never within their Gar∣risons, have no need of Postliminy; because by the Law of Nations, the owner never lost his property in them: The like may be said of such things as are taken by Thieves and Pyrates; Because (as Ʋlpian and Javelinus answer) the Law of Nations never granted unto them a power to alter the property of what they got: upon which ground it was, that the Athenians were willing to accept of the Island Halonesus, which some Pyrates had taken from them, as King Philip did from those Pirates, as of a thing restored by Philip; but not as of a thing given them, as will appear by the very Epistle of King Phi∣lip recorded by Demosthenes. And therefore things so taken, wheresoever they are found may be claimed, only (what out of equity we have already concluded to be just) so much ought to be allowed him, who at his own charge hath possest himself of them, as may be conceived, it would have cost the first owners themselves to have recovered them.

XVII. Some alterati∣ons may be made by the Civil Law, as to their own Subjects.

Now though it be thus by the Law of Nations, yet may the Civil Law otherwise de∣termine it, as in Spain, the Ships that are taken from Pyrates are theirs that take them; so also they are among the Venetians. Neither is it unreasonable that a private thing should give way to publick profit, especially where the recovery of them must necessarily be accompanied with so much difficulty. But yet this Law can be no Plea against Strangers, who may notwithstanding challenge their own things.

XVIII. How Postlimi∣ny is observed among such as are not Ene∣mies, but Stran∣gers.

But that which is more to be admired, is that which the Roman Laws do testifie, name∣ly, That this Right of Postliminy took place, not only between enemies, but even be∣tween the Romans and Strangers. But surely this, as I said elsewhere* 1.327, was but a Relique of that barbarous Age, wherein the general corruption of mens manners had ta∣ken away all sense of that natural Society that should be between all Mankind: and there∣fore among Nations that had no publick War one against another, there was practised a∣mong private men a certain licence of War, which their different language and manners seemed to denounce; which licence, that it might not swell so high as to kill each other, it pleased the Nations to limit, and to agree, That they that were taken on either side, be∣ing Strangers, should be held as Slaves; and consequently they introduced the Law of Postliminy, which puts a difference between Strangers and Robbers or Pyrates; because Strangers do usually agree upon equal Conditions, which Pyrates and Robbers disdain. It seems that of old it hath been a Case much controverted, Whether if the Subjects of a Confederate Nation, being Slaves here, should escape from us and get home, They may be said to return by Postliminy. This Question we find proposed by Cicero, concerning which Gallus Aelius delivers his opinion thus, We, saith he,* 1.328 observe the same Right of Postlimi∣ny with a free people, with Confederates and with Kings, as we do with Enemies. But Proculus's opinion was quite contrary, I doubt not, saith he, but that both our Confederates, and they that are a free Nation, are all Strangers unto us; between them and us there is no Postliminy. We are therefore to distinguish of Leagues; for if any Leagues be made on purpose only to put an end, or to prevent open War, those Leagues do not for the time to come hinder either the taking of Prisoners, or the Right of Postliminy. But if in the Articles of the League it be exprest, That the Subjects of either Nation may upon the publick Faith safely travel or sojourn in the others Dominions, then it is not lawful to take Prisoners on either side, and so there is no place for Postliminy. And this I take to be the meaning of Pomponius, where he saith, If there be a Nation with whom we have neither friendship nor hospitality, nor League made for friendships sake; these indeed are not enemies: But yet whatsoever of ours comes to them is theirs; and a man that is free with us, being taken by them, is made their Slave: and it is the same if any thing come from them to us, and therefore in this case Postliminy is granted. In mentioning a League made upon the account of friendship, he shews that there may be Leagues that have no Right either of friendship or hospitality. And Proculus sufficiently declares, That by a people confederated, he understood such a people as had pro∣mised friendship and safe hospitality, where he subjoined these words, For what need is there of Postliminy between us and them, when they may equally retain as well their own liberty as property in their own things with us, as they do among themselves; and we may enjoy the same liberty and dominion with them as with our selves. Wherefore that which follows in Gallus Aelius, namely, With those Nations that are under our jurisdiction, there is no Postliminy is to be understood with this supplement: nor with those with whom we have contracted any League of friendship.

XIX. How the same may now take place.

But in our days, not only amongst Christians, but even amongst Mahometans, this Right of Captivity without the time of War, as also that of postliminy, are worn out of use. The necessity of both being taken away by virtue of that cognation or affinity wherein Na∣ture hath linked us, which is now re-acknowledged to be between all Mankind. Yet may that ancient Right of Nations be now in force, in case we have to do with any Nation so barbarous as to conceive it lawful for them to invade in an hostile manner the persons and properties of all Strangers without any provocation or denouncing of War. And even whilst I am writing this, thus it is adjudged in the High Court of Paris, Nicholaus Verduni∣us being President, That the Goods which have been the Subjects of France, but were af∣terwards taken by the Pyrates of Argier, who live upon the spoil of all that traffick by Sea, were by the Right of War justly alienated; and therefore being recovered by others, were theirs that recovered them. And in the same Court this also was adjudged, which I said even now, That Ships are not to be at this day reckoned among the number of those things that are received by Postliminy.

CHAP. X. Admonitions concerning things done in an unjust War.

• I. In what sense modesty may be said to forbid what Law permits
• II. Thi•• applied to such things as are permitted by the Law of Nations.
• III. In an unjust War, what the Law of Arms permits are internally unjust.
• IV. Who are hereby obliged to make restitution, and how far.
• V. Whether things taken in such a War, are to be restored by him that took them;
• VI. Or by him that knowingly does detain them.

I. Modesty for∣bids what the Law permits.

I AM now to look back, and to take away from those that make War almost all those Rights which I may be thought to have granted them, though indeed I have not. For when I began to explain this part of the Law of Nations, I also declared, That many things were said to be right and lawful, because they were not punishable by Law, partly because they derive their authority from Military Councils, which notwithstanding either swell beyond the Bounds of honesty, whether we confine it to Right strictly taken, or place it in the Precepts of other Vertues; or else they are such as may more religiously, and amongst good men, more commendably be left undone. Seneca brings in Pyrrhus pleading thus,

Lex nulla capto parcit, aut poenam impedit.

No Law spares Slaves, nor them from stripes defends.

To whom Agamemnon replies,

Quod non vetat Lex, hoc vetat fieri pudor.

What Law forbids not, Modesty commends.

For the word Pudor in this place respects not so much a mans same and reputation, as what is in it self right and honest; or at least what is better and more laudable than that which the Law permits. Thus we read in Justinian's Institutions, Things are said to be com∣mitted to a mans trust, when they have no tye of the Law to secure them, but the honesty and integrity of the person entrusted: So in Quintilian the Father, The Creditor cannot with any honesty or conscience require his Debt of the Surety,* 1.329 unless it be when he cannot get it from the Principal; and in this sense we find that Pudor and Justitia, Equity and Ju∣stice, are very often conjoined.

Nondum Justitiam facinus mortale fugârat. Ʋltima de Superis illa reliquit humum. Próque metu populum sine vi pudor ipse regebat.

Justice as yet did amongst Mortals dwell, She was the last that bid the Earth farewel. 'Twas shame, not force, that then the people aw'd.

Plato calls Justice the Companion of modesty; and in another place he tells us, That God fearing the destruction of mankind, had sent Equity and Justice amongst men, as Orna∣ments to Cities, and as Bonds to contract love and friendship between them. Plutarch al∣so in the life of Theseus terms Justice an Inmate or Cohabitant with Righteousness. And in another place he joins them together as Companions. But Cicero assigns them their distinct Bounds,* 1.330 saying, It is the Duty of Justice not to hurt our Neighbour, but of Modesty not to of∣fend him; Justitiae est non violare homines, Verecundiae non offendere. With that Verse above quoted of Seneca agrees that of the same Seneca in his Philosophy, Quam augusta est in∣nocentia ad Legem bonum esse; How scant is that innocency that is measured by the Law only? Ju∣stice and faithfulness require such things of us as no Law can oblige us unto. Where we may observe that he puts a difference between Jus and Justitia, attributing to the former that which the Law enjoins, but unto the latter that which right reason and conscience dictates. Of how much larger extent are the Bounds of our Duty one to another, than what is contained within the Hedg of the Law; How many things do piety, humanity, liberality, justice and fidelity require

of us, which fall not under the Commands of the publick Laws: Which the same Seneca doth in another place excellently illustrate, by the Right of a Lord over his Slave,* 1.331 As to our Bondser∣vants, saith he, we should consider, not what we may impose upon them with impunity to our selves, but what we ought in right reason and equity to do unto them, which commands us to shew mercy even to our Slaves, and to those whom we have bought with our money. And again, Cum in servum om∣nia liceant, est aliquid quod in hominem licere commune Jus animantium vetat; Whereas all things are by the Law tolerated that are done to a Slave, there are notwithstanding some things that the common Right of living Creatures forbids us to do unto him, as he is a man. Where also we may observe the twofold acception of the word licet, the one being referred to the judgment of the Law, the other to the dictates of right reason. There are many things, saith Seneca,* 1.332 that are not enjoined us by any Law, neither will the omission of them bear an Action, notwithstand∣ing we are led into by the mere custom of our lives, which is far more forcible than any humane Law. Quintilian tells us, That there are some things, which though granted by the Law,* 1.333 yet in their own nature are not very commendable; as by the Law of the twelve Tables, it was lawful for the Creditors to divide the Body of the Debtors (if insolvent) between themselves, which Law common custom did abhor. So likewise Cicero in the third of his Offices, Aliter Leges,* 1.334 aliter Philosophi tollunt Astutias; Leges, quatenus manu tenere possunt; Philosophi. quatenus ratione & intelligentia: The Laws take away fraud one way, Philosophy another; the former by pinnacling the hands, the latter by clearing the understanding, and informing the judgment.

II. This applied to what the Laws permit.

To the same pu••pose is that of Marcellus in his Oration to the Roman Senate, That which comes here to be discust, saith he, is not what I have done against the Syrac••sians; for what ever I have done against them as enemies, the Law of Armes will justifie me in; but what those men, being overcome, ought in reason and equity to suffer. Aristotle discussing this Question, Whether Captivity arising from War be just, seems to owne this distinction,* 1.335 Some (saith he) looking only at that which the Law permits (for the Law it self also is something that is just) do hold, That Captivity in War is just; but yet they deny it to be so absolutely, because pos∣sible it is that the cause of that War may be unjust. Others there are, saith Seneca, that create unto themselves a Right by Arms in anothers Territories: where these two words [a Right, and in anothers Territories] do seem no less to clash than the Arms whereby that Right was got. But that is there called Right which the Law of Nations permits only. Consonant where∣unto is that of Thucydides in that Oration which the Thebans made to the Roman Senate, As for those, saith he, that were slain during the Conflict, we complain not; for this was in some sort just. Nay, the very Roman Lawyers themselves do often call That the Right of Ca∣ptivity, which in another place they term an injury, and place it in oposition to natural equi∣ty. And Seneca, respecting that which often falls out (namely, when the War is unjust) accounts the very name of Slave as a badge of injustice. The Italians in Livy,* 1.336 detaining from the Syracusians that which they had gained by War, are said to be obstinate in the detention of that which they had gained unjustly. And Dion Prusaeensis, having declared such Captives free as could make their escape home, addes this, As being unjustly brought under bondage. So Lactantius observes, That the Philosophers in all their Discourses concerning Military Affairs, always fitted their Orations rather to the publick customs of the Age they lived in, than to justice and true valour. And S^t Augustine in an Epistle of his to Marcellinus, tells him,* 1.337 That if in this World the Precepts ef Christianity were duly kept, no War could be made without some mercy. And in another place, Among the true Worshippers of God, even their very Wars are peace∣able.

III. What is done in an unjust War, an un∣just, as to in∣ternal Justice.

We conclude therefore in the first place, That the ground of the War being unjust, al∣though it be solemnly undertaken as to the manner, yet are all those acts that are done in it unjust, if we understand injustice, not as it is repugnant to the Law of Arms; but ac∣cording to its natural acception, as it is repugnant to right reason, equity and conscience. So they that shall knowingly either commit such acts, or assist in the doing of them, are included in the number of those,* 1.338 who without repentance cannot enter into the Kingdom of Hea∣ven: for repentance, if true, necessarily requires from such as have time and estates suffici∣ent, That he that hath done wrong, either by killing men, spoiling Goods, driving away Cattel, or the like, should make satisfaction.* 1.339 And therefore did God himself renounce the solemn Feasts of the hypocritical Jews,* 1.340 because they did not suffer their Captives unjustly ta∣ken to go free. And the King of Niniveh proclaimed a Fast throughout the City,* 1.341 and com∣manded all his Subjects to turn every one from his evil way, and to empty their hands from all things got by rapine and violence; as being by the very dictates of natural reason taught to acknowledge, That without restitution all their humiliations were but vain and fictiti∣ous. Non differtur ultionis sententia, si non redduntur universa;* 1.342 Vengeance will not be long de∣layed, unless restitution be made to the full, saith Hierome: with whom agrees S^t Augustine, If that wherein we have sinned be not restored, being in our power, we do not repent, but dissem∣ble. Neither is this the judgment of Jews and Christians only,* 1.343 but of the Mahometans al∣so, as Leunclavius informs us.

IV. Who and how far forth they are obiged to restitution.

Now they that are obliged to make restitution, according to what we have elsewhere de∣livered in general, are in the first place the Authours of the War, whether as having the supreme power, or as counselling and perswading thereunto; and these are bound to make satisfaction as well for all damages that are usually done in War; as also for all those unusually done, if they were done by their either order or perswasion, or by their permission, in case it were in their power to have hindred it. Thus also are Captains bound to make restitution for those things that are either spoiled, or taken away by any under their Command; yea, and the whole Army in general, that shall run headlong to any one common outrage, as to fire a Town, or the like; and for particular acts, every particular Souldier shall satisfie for that loss whereof he was the Authour, either solitary, or concurrent with others.

V. Whether things taken in an unjust War are to be resto∣red by him that took them.

Neither may we herein admit of that exception which by some is brought of such as are only Auxiliaries, if they be any ways guilty of the crime; To oblige any man to restitu∣tion without guilt, the bare crime sufficeth. Some also are of opinion that though the War be never so unjust, yet the things taken in it are not to be restored; because, both Parties, when the War began, were pr••sumed to agree to this, That their Goods should be theirs that could take them. But on the contrary, it cannot easily be granted that any man will rashly give away his Right; and the nature of War is much different from that of Con∣tracts. But to the end that Nations being once at peace, should rest so, and not involve themselves in endless War against their will; it was thought sufficient to introduce this ex∣ternal Right of Dominion,* 1.344 whereof we have already spoken, which notwithstanding may very well consist with that internal obligation to restitution. Nay, these very Authours seem to assert as much in their Discourses concerning the Right of taking Prisoners; wherefore the Samnites in Livy declare,* 1.345 That the spoil which they had taken from their Ene∣mies, and which by the Law of Armes seemed to be theirs, they had restored: Which, he saith, seemed to be theirs, because the very Samnites themselves had before acknowledged that War to have been unjust. Not much unlike is that power which the Law of Nations gives in a Contract made without fraud, wherein there is some inequality to compel the Con∣tractor to fulfil his Contract; yet nevertheless he that receives more in value than what he gives,* 1.346 is bound, though not by Law yet, in honesty and conscience, to even the ballance by reducing the Contract to an equality.

VI. Or whether by him that de∣tains it.

Yea farther, as though the damage be not done by our selves, or if it be yet without any fault of ours; yet if the thing taken away in an unjust War by another, be in our possessi∣on, we are bound to restore it; because there can be no reason given naturally just, why the right Owner should be deprived of it: for he never consented to its alienation, nor was their any crime committed by him, nor did he receive any recompence for it; apposite whereunto is that of Valerius Maximus,* 1.347 The people of Rome, saith he, when Clau∣dius had publickly sold some Camerine Prisoners taken in the War, although they saw their Treasu∣ries thereby filled, and their Empire enlarged; yet being convinced, That their General had not dealt very faithfully in their Conquest, they with great diligence sought out those Captives, and redeeming them, restored them unto their Lands. So also is that which Josephus records of Mark Anthony,* 1.348 who commanded the Tyrians to restore to the Jews those Parts of Ju∣daea which they withheld from them, to release their Prisoners, and to return the spoil to the right Owners. Thus we may read of the Phocians, That by the Decree of the Ro∣man Senate, even their publick liberty, together with their Lands formerly taken from them, were restored. So likewise were the Lygurians sold by M. Pompilius, but redeemed by the Romans, and, together with their Goods, set at liberty. The self same Decree past for the Abderites, the reason being added, Because the War made against them was unjust. Thus Macrinus released all the Parthian Prisoners, and restored all the spoil, Because the Romans had unjustly broken the peace. And Mahomet the Turk dismist upon this account, all the Captives taken at Sancta Maria in Achaia. Yet may the present Possessor of such Goods or Persons deduct so much for his either charge or labour, as in probability it would have cost the right Owner to have recovered them: but if he who without any default was thus possest of any thing so taken, hath either consumed or alienated it; he is not bound to make any farther satisfaction, than he shall be thought to have been made the richer thereby.

CHAP. XI. Moderation to be used in killing of men in a Just War.

• I. That some acts in a just War are not in∣ternally just: explained.
• II. According to internal justice who may be killed.
• III. That no man can be justly slain for his misfortunes, as they that are forced to either party.
• IV. Nor for faults intermediate between mis∣chances and mischiefs: this explained.
• V. The principal Authors of a War, distin∣guished from those that are drawn into it.
• VI. In the Authors we are to distinguish of the Causes, whether probable or improbable.
• VII. Even to those who have deserved death, the punishment may sometimes be justly re∣mitted.
• VIII. Care should be taken of the innocent, that they be not unadvisedly killed.
• IX. Infants to be spared, and Women if not highly criminous, and old Men.
• X. Priests to be spared, and such as addict themselves wholly to learning.
• XI. As also Husbandmen.
• XII. Yea, and Merchants, and such like.
• XIII. And slaves.
• XIV. And such as surrender upon equal con∣ditions.
• XV. They also that deliver themselves up with∣out conditions.
• XVI. All these may be admitted to mercy, unless they be very criminous, which how to be taken.
• XVII. A multitude of offenders may well be spared.
• XVIII. Hostages, unless in themselves faul∣ty, are not to be slain.
• XIX. That all unprofitable Combats are to be avoided.

I. In a just War some acts are not internally just.

NEITHER is that generally true that is commonly said,

He hazards all, who what is just denies.

That of Cicero is much better, There are some good offices to be performed,* 1.349 even to those who have injured us; there is also some moderation to be used even in revenge and punishments. And e∣ven in the sharpest War, there ought to be some grains of mildness and clemency, if it be regulated according to Christian Discipline.* 1.350 Nay the very Philosopher hath alrea∣dy pronounc'd them cruel, who though they have cause, yet know no measure in punishing. Ci∣cero commends that golden age of the Roman Empire,* 1.351 the end of whose Wars were mild and gentle, and never otherwise but upon necessity. Aristotle notes, That the punish∣ment taken on the Thebans and Heracleans, savoured more of cruelty than equity. And Thu∣cydides speaks of some, that suffered punishments greater than what were fit.* 1.352 So Tacitus taxeth Pompey, for exacting punishments far greater than the crimes deserved. And in the same Book he blames Aug. Caesar, that in punishing Adulteries he was more cruel than any of his Ancestors; yea, oft-times than his own Laws. Although as Juvenal speaks in this Case:

—Exegit autem Interdum ille dolor plus quam lex ulla dolori Concessit.—

This Grief sometimes far greater licence pleads, Than any Law to other grief concedes.

So Quintilian, A punishment beyond what is humane, is not to be exacted from any, unless it be from the very worst of Parricides.* 1.353 And therefore M. Antoninus the Emperour did well when he wrote to the Senate, To be careful that their proscriptions were not too severe, nor their punishments too cruel. Whereof Ammianus likewise complains, Their rage a∣gainst many was much greater, than either their errours or crimes deserved. It is possible, saith Aristides, that they who take revenge for an injury done to themselves, may be unjust, if they shall exceed in measure; for he that in this case, proceeds beyond his just bounds, is the Author of a new quarrel. And he that punisheth a Malefactor beyond what he hath deserved, deserves himself to be punished. This was Ovids opinion of a King:

—Caede nocentum Si nimis ulciscens extitit ipse nocens.

He that for Blood too great revenge doth take, Doth (sure) himself the greatest Murtherer make.

The Plataeans in Isocrates demand, Whether it be fit or reasonable, to require for so small faults, so great and grievous punishments. And in his second Oration for Peace, the same Aristides gives this wholesom advice, Look not so much at the crimes, as at the persons to be punished; and at your own frailty and propensity to fall, that are about to punish: and lastly, at the measure how far you may with equity punish. Minos in Propertius is highly commended in that,

* 1.354Victor erat quam diu aequus in hoste fuit.

Though Victor he even to his foes was just.

So he in Ovid, who,

In giving Laws to's Captives was most just.

II. According to internal justice who may be killed.

But when we may justly kill our Enemies in a just War, according to that which we call internal justice, and when we may not, may easily be understood by what we have alrea∣dy said in the first Chapter of this Book. One man may be said to kill another, either ac∣cidentally or purposely; no man may justly be killed purposely, unless it be for some crime that deserves Death, or because we cannot otherwise defend our own lives or for∣tunes: And although to take away the life of a man, for things of small value, do not swerve from the rules of justice strictly taken; yet it doth from the rules of Charity. Now that the punishment may be just, it is necessary that he that is killed should offend, and that in so high a measure, as that by the sentence of an upright Judge, he may be condemned to Death; whereof we shall now speak the less, because we have already sufficiently done it in the Chapter of Punishments.

III. No man may justly be killed for being un∣fortunate.

Heretofore when we treated of Suppliants (for such there are as well in War as Peace) we distinguisht between misfortune and injustice. Gylippus the Lacedemonian, discoursing about the Right of Suppliants, states the Case thus; they who at the first introduced that Right, did certainly intend mercy and compassion to those whom for∣tune had made miserable; but as to such as were fallen into misery, through their own deceitful dealings, or out of a desire to usurp another mans Right, these have no rea∣son to blame fortune, nor ought to assume unto themselves the name of Suppliants. Whence we may observe, That whereas there are two sorts of men, that usually cry for protection, they that are unfortunate, and they that are malefactors: Gylippus places the Athenians amongst these latter, because unprovoked by any injury, they made War upon the Syracusians; whereupon he infers, that since they voluntarily began the War, it was but just that they should feel the evil consequences that attended the War. Examples of such as are unfortunately miserable, are those who being no Enemies, are notwithstanding unhapily found, and thereby blocked up amongst Enemies, although they bear no malice against us: Such were the Athenians, when Aristion their Tyrant forced them to side with Mithridates against the Romans; of whom Paterculus writes thus,* 1.355 If any man shall impute that to the Athenians as an act of Rebellion, when being close besieged by Sulla, they were enforced by Aristion their Governour, to defend themselves and their City against him in favour to Mithridates, he will find himself mistaken, as well in the truth, as in the Ancient Histories; for the Athenians were so fast friends to the Romans, that at all times, and upon all occasions, whatsoever was faithfully performed, the Romans would usu∣ally say was done (side Attica) with as much fidelity, as if done by the Athenians. Never∣theless being miserably opprest by the forces of Mithridates within, who held their City in de∣spiet of them, and straitly besieged by the Romans, their friends without, whilst their hearts were without their walls,* 1.356 they were compelled to keep their bodies within. The latter part of which sentence seems to have been borrowed from Livy, who speaking of Indibilis, saith, That with his Body he served the Carthaginians, but with his mind the Romans. For as Cicero rightly observes,* 1.357 They who hold their lives at the mercy of others, do more consider their power what they may do, than their justice what they ought to do. So the same Cicero elsewhere,* 1.358 The third time was, saith he, when after the coming of Varus into Africk, he remained therewith, if it were a crime: Necessitatis non voluntatis fuit; It was rather in∣evitable than voluntary. And this very course took Julian in the case of the Aquileians, as Ammianus testifies;* 1.359 who when he had described the punishment of some few, adds, The residue he dismist without any hurt done them: Quos in certaminum rabiem necessitas e∣gerat, non voluntas; Who, saith he, fought more through compulsion, than by choice or e∣lection. Thus did this merciful Prince upon very equitable considerations. Thus also

did Cleon in Thucydides freely forgive them who being enforced by the enemy, did serve against him. So Pertinax speaking of Laetus and others,* 1.360 whom Commodus compelled to serve under him; They, saith he, obey Commodus with an unwilling mind; but whensoe∣ver they have a power and opportunity to serve us, they never wanted a will to do it. Neces∣sity is a strong and violent thing, not to be resisted; wherefore Cassius Clemens in Xiphili∣nus, treating concerning the affairs of the Emperour Severus, pleads thus, For my part, saith he, I never knew thee, nor yet Niger; but being unfortunately left in that part which he had obtained, I did what necessity urged me unto, and obeyed the present Power; not that I was willing to make War against thee, but that I was desirous to repel Julian for mine own safe∣ty. Thus also Aurelianus, when he made his entry into Antioch, set out a very gracious Proclamation, referring all that was done rather to an impulsive necessity, being over∣awed by Zenobia, than to any enmity they bare unto him. And Belisarius in Procopius thus excuseth the Africans, That what they did was against their wills,* 1.361 being then under the power of the Vandals. So likewise Totilas told the Neapolitans,* 1.362 That he knew them to be under the Command of their Enemies unwillingly. An ancient Commentator upon that part of Thucydides, where he discourseth concerning the selling of the Corcyraean Ca∣ptives, thus glosseth, He shewed therein a Princely clemency,* 1.363 every way agreeable to the ho∣nour of the Grecians; for to kill men in cold bloud is barbarous, especially Servants, who fight not upon their own choice, but at the command of their Masters. The Plataeans in Isocra∣tes do thus plead for themselves, We did not serve the Lacedemonians voluntarily, but by com∣pulsion; for we durst not do otherwise. The same Plea doth he make for the other Greci∣ans, Illorum partes Corpore sequi cogebantur, animo vero nobiscum erant; They were compel∣led with their Bodies to serve the Lacedemonians, but their hearts were with us. So likewise of the Phocians Herodotus, That they followed the Medes, but by compulsion, not willingly. Upon which account Alexander forgave the Zeldi, as Arrianus testifies, Because they were enforced to take part against him with the Barbarians. And Diodorus brings in Ni∣colaus the Syracusian thus pleading for the Captives, They that are Confederates with our Enemies, are by force driven to make War upon us; therefore as it is but just that they that studiously and industriously make War against us, be severely punished; so to pardon those who unwillingly offend us, is alike conscientious. So Antigonus alledged,* 1.364 That he made War indeed against Cleomenes, but not against the Spartans, as Justine re∣ports it.

IV. Nor for an in∣termediate fault between fraud and mis∣fortune.

This also is to be observed, That between a plain and manifest injury, and an injury done by a mere mischance, there intercedes sometimes something of a middle nature, as if participating somewhat of either; so as the action is neither merely or altogether vo∣luntary, nor yet done merely through ignorance or against our will. Aristotle calls these acts 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, slips or failings, as the Latines do trespasses or offences. Of actions, saith he, that are spontaneous, some are done deliberately, others rashly,* 1.365 and without conside∣ration. Now whereas in humane Society injuries may be done three several ways; those done merely through ignorance are called mischances, as when a mischief lights upon a man against whom no hurt was ever intended, (as for example, if a Son by forcing open a Door should acci∣dentally wound his own Father, whom he could not suspect to be behind;) or if a greater hurt or damage befal a man than what was intended, (as if a Fencer, for the tryal of skill, and only intending to draw bloud, should kill his Adversary,) it might be called a mischance, but not a mischief. For whatsoever happens besides what a man proposeth to himself, is to be at∣tributed to misfortune: for haply vellicare voluit non vulnerare, He intended to beat him, not to wound him; or if he did intend to wound, yet haply not this man, but another; or it may be not in that manner, or in so great a measure, as it fell out: if therefore any such hurt or damage do arise, besides what was intended, or might probably be expected, it shall be esteemed as a mischance, not a mischief. But secondly, If the wrong done might have been foreseen and prevented, though it were not done improbo animo, with a wicked intention, it shall be accounted as a fault (〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Aristotle terms it) for culpae affinis est qui in se habet agendi principium; qui vero extra, infoelix: He must needs be accessary to the sin or fault committed, that acts by a principle within him; but he that is passive and over-ruled by something without him, is unhappy. But when a man doth what he doth knowingly, though not deliberately, it is confest that an injury is done; as he that in a Forest shoots at a Deer, but kills a man whom he saw not, is unfortunate: but he that discharges a Musquet in a populous Street, though with no mischievous intention, yet if he kill a man, he sins; because he did it freely and voluntarily (though not considerately:) As also they that through anger, or any other perturba∣tion of the mind, either natural or necessary, shall hurt a man, cannot be faultless; and yet we can∣not account them wicked or malicious. But yet if a man should knowingly and premeditatedly do the same thing, he may justly be accounted wicked. Wherefore whatsoever is done, through anger suddenly, may very well be said to be unadvisedly done;* 1.366 for it is not he that doth the wrong through anger that begins the fray, but he that first provokes that anger: Hence it is that before judgment in such Cases can be given, the Query is not so much after the fact as

after the occasion, namely, Who gave it, and how great the provocation was. For anger usu∣ally ariseth from hence, when a man thinks himself to be injured; and therefore in such diffe∣rences as do arise about wrongs done through anger, the Question is not as in ordinary Con∣tracts, An hoc factum sit, Whether done or not; for therein, unless excused by forgetfulness, one of the Parties must of necessity be unjust; as namely, He that fulfils not the Contract. But the Question should be, Whether the wrong done were justly done, considering the provocation. For he that first gave the occasion, did it knowingly; it is no marvel then if the one Party may think himself to be injured; and the other not, it may notwithstanding so happen, That he that through anger doth the wrong may be unjust; if, namely, the revenge swell higher than the provocation; or the wrong we do, bear not a just proportion with what we before suffer∣ed. For justus est qui deliberatò justè agit, He is a just man who knowingly and deliberate∣ly doth justly; for possible it is that a man may do justly knowingly, but not deliberately. Moreover, of such wrongs as are spontaneous, some deserve pardons, others not. Those inju∣ries are pardonable which are done not only by such as know not but that they may lawfully do them. But these also that are done through ignoranee, that is, when their ignorance is the cause of the offence. But if injuries be committed by ignorant persons, but not through their ignorance, but with such an affection of mind as exceeds the common bounds of humanity, such Offenders deserve no pardon. Thus far Aristotle, whose very words, because the matter is of great use, I have therefore, saith Grotius, intirely turned into Latine, be∣cause usually being but ill translated, they are not easily understood, Quod sponte non fit, om∣ne dignum venia; Whatsoever is unwillingly done, saith Dionysius Halicarnassensis, is par∣donable. So likewise Procopius, They who have wronged others, if through ignorance, that is, when their ignorance is the cause of the wrong, ought in equity to be forgiven by those whom they have wronged.* 1.367 Michael Ephesius interpreting that place of Aristotle, where he speaks of an injury that may be done beyond the expectation of him that did it, places that which I have before-recited as an instance in a Son, who forcing open a Door wounds his own Father. And of that which might have been foreseen, he puts that of a man that without any malice shoots an Arrow at random in an High-Way; and of that done by necessity, he instanceth in him who being opprest with hunger or famine is constrained to be injurious to others to preserve himself; an example of faults committed out of natu∣ral perturbations, he puts in love, grief, fear. That is said to be done through igno∣rance when the fact is unknown, as when Abimilech would have taken Sarah, not know∣ing that She was Abraham's Wife. An injury is said to be done by a person ignorant, but not through ignorance, where the Law is unknown. And this very ignorance of the Law is sometimes excusable, and sometimes inexcusable. All which do very well agree with what our Civilians tell us. Not unlike unto this is another place of the same Ari∣stotle,* 1.368 It is equity, saith he, that distinguisheth as well between manifest injuries and trespas∣ses, as also between these trespasses and mischances. Whatever hurt is done without an ill inten∣tion, and that could not be foreseen and prevented, is merely a mischance; that which might have been foreseen, yet is done without any prepensed malice, is a fault or oversight: But what is done purposely, and with a wicked intent, is a manifest mischief, or an open injury, which deserves no pardon. The Ancients digested all wrongs done into these three Forms, as proceeding from either ignorance, improvidence, or wilfulness. And Ho∣mer in the last of his Iliads, speaking of Achilles, saith,

〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,

i. e. That he was neither ignorant, inconsiderate, nor mischievous. The like distinction also we find in Marcian, Delinquitur, aut proposito, aut casu, aut impetu; We commonly of∣fend either purposely, or casually, or rashly: Purposely, as Thieves, whose Trade it is to rob and kill men for what they have; casually, as when a man in hunting shoots at a Deer, and kills a man; rashly, when men, being drunk with wine or anger, do usually fall out from words to blows.* 1.369 The first and last of these Cicero thus distinguisheth, In all acts of injustice, saith he, it is very considerable whether they be done by a too hasty eruption of passion, which usually lasts not long, and then ends in repentance; or by judgment and premeditation. For what proceeds from the former are like Mushrooms, hasty in their birth, and sudden in their fall; and are there∣fore much more pardonable than those that grow up leisurely by premeditation. A wise man will ea∣sily remit injuries,* 1.370 saith Seneca, if he understand that they proceed not from a deep rooted hatred, but from some sudden puff of passion. And a little after, Sometimes he sooner remits greater injuries, than he doth lesser; that is, if the former be committed through rashness, and not cru∣elty; and the latter proceed from a long lingring and inveterate malice. Neither will he punish the same sin in two several persons in one and the same manner, if what the one did unadvisedly, the other did wilfully. Thus also Philo in his Exposition of some certain Laws, Dimidiatum est facinus ubi non antecessit longa animi deliberatio; That injury abates one half of its punishment that is unpremeditated: of which kind are those that we are provoked unto by pure necessity,

which if it do not altogether justifie, yet it extenuates the fault.* 1.371 Thus the Samians in Thu∣cydides told Alcidas the Lacedemonian, when he would have put the Captives taken at Chios to death, That it was not probable that he came to set Greece at liberty, as he pretend∣ed, who killed men no ways obnoxious unto him; but only as they were associated with the Atheni∣ans, whereunto also they were compelled by necessity. So also S^t Chrysostome, Strangers can for∣give Strangers, and one Enemy another, if the wrongs done by them, though never so great, were involuntary, and done by mere compulsive. For as Demosthenes pleads against Aristocrates, So strong and impulsion an Orator is necessity, that it robs us of our freedom in judging what is and what is not to be done in any thing that lies before us; wherefore such Cases are not to be too nicely sifted in a Court of Equity. Concerning which Point, the same Demosthenes doth much enlarge himself in his Oration concerning false witnessing, against Stephanus. To the like purpose is that of Thucydides also, It is very probable, saith he,* 1.372 that God himself is ready to forgive whatsoever is involuntarily committed, either in War, or in such other like cases of neces∣sity. For the Altars of the Gods have ever been as so many Sanctuaries for such to fly unto as have offended against their will; for they only are to be persecuted as Malefactors, who are wil∣lingly and professedly so; but not they whom extreme necessity hath enforced to transgress.* 1.373 Thus it is by the Hebrew Laws, as we may collect from that place, wherein it is provided, That he that had ravished a Damosel in the Field was to be put to death, but in the Damosel there was found nothing worthy death; because there was a force upon her.* 1.374 The Caerites in Livy humbly besought the Romans, That they would not call that an act of counsel, which was an act of pure necessity. And Justine, speaking of that execrable act of Sacriledge com∣mitted by the Phocians, saith, That the scandal thereof did more properly belong to the The∣bans, by whom they were reduced to that extreme necessity, than to the Phocians. It was the o∣pinion of Isocrates, That he that was enforced to steal or else to starve, had an excellent Advo∣cate to plead his Paodon, meaning necessity. Of the same opinion was Aristides in the like Case, Difficilia tempora excusationem aliquam dant desciscentibus,* 1.375 The difficulty of the times is some excuse for those that fly away; as the dangers of a close Siege, a Famine, or Plague, are the best Pleas for Fugitives. Philostratus excuseth the Messenians for not entertaining those that were banished Athens upon this ground, That they durst not do it for fear of Alexander, whom they and all Greece at that time stood in awe of. The like doth he in Aristotle, who being compelled through necessity to do some unjust act, confesseth himself that he was 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, half wicked; but neither altogether unjust, nor at all malicious. Thus Cleon in Thucydides aggra∣vates the crime of the Mityleneans, The injuries they have done us were not casual nor com∣pulsory, but voluntary, nay malicious; but those injuries only are pardonable that are done unwil∣lingly. Philo therefore instructs his Prince thus, That whensoever he was provoked to revenge or to punish, he should learn how to distinguish between such as were notoriously and professedly wicked, and those who were only evertaken with a sin, or overborn by some violent temptations; for to kill all that have in the least degree offended, is brutish and savage. Themistius in his Panegyrick upon the Emperour Valens, thus applieth these distinctions to our purpose, Thou, saith he, hast wisely distinguished, O Emperour, between acts of prepensed malice, acts of humane frailty, and acts of inevitable misfortune. And although thou hast not at all conver∣sed with Plato, nor read Aristotle; yet hath thy practice been much according to their Precepts, whereby thou hast justified their Sayings. Thou hast not inflicted the same punishment upon all sorts of Offenders, upon those who were the first Authours of the War, and upon those who in process of time were enravelled in it, and upon those who have since yielded themselves, as unto the Conquerour; but illos damnâsti, hos castigâsti, & postremos miseratus es; The first thou hast condemned, the next thou hast chastised, and on these last thou hast had compassion. And the same Authour in another place thus instructs a young Emperour, Observe, saith he, what a vast difference there is between an act done through misfortune, an act done through impru∣dence, and an act done out of obstinate malice: Now accordingly it becomes a Prince to pardon the first, correct the second, but to persecute these last, even unto death. Thus did the Empe∣rour Titus, as Josephus records it, punish the Leaders of the people severely and exemplarily, but for the multitude he only rebuked them with sharp and menacing words. Those injuries that are done by misfortune only, and that could not be avoided, neither deserve to be pu∣nished, nor are liable to restitution. Those that are wilful and malicious do both deserve punishment, and are liable to restitution. But those of a middle nature that are done through rashness or imprudence, do engage us to restitution; yet are not always punisha∣ble: but if they be, yet not unto death. What Themistius said of the Emperour Valens, Xiphilinus testifies of that most excellent Emperour Trajan, That though he were not capable of much bookish Learning, yet what concerned himself, and matters of Government, he both knew and practised. The like Testimony Herodian gives of Marcus Aurelius, That he was the only Prince whose wisdom consisted not in Discourst or in speculative knowledge; but in a grave, constant and sober habit both of life and manners. The like Character doth Xiphilinus give of the Emperour Macrinus, Leges non tam norat exactè, quàm fideliter exequabatur; He was not so skilful in the Laws, as he was exact and faithful in the execution of them. God grant such Princes unto us in our days.

V. The Authours of the War to be distinguish∣ed from them that follow them.

Every History will furnish us with Examples of the different punishments inflicted on the principal Authors of a War, and those who have been seduced into it. Herodotus tells us, That the Grecians did severely punish the chief Authors of the Revolt of the Thebans, to the Medes. So doth Livy, That the chief Citizens of Ardea were beheaded. And when Agrigentum was taken, he tells us, That Valerius Levinus took the principal Leaders of the people, whom having first whipped with Rods, he afterwards beheaded; but the rest, together with the spoil of the City,* 1.376 he sold. And in another place he tells us, That Atella and Calasia being taken by surrender, the Leaders of the people were put to death. And elsewhere he thus bespeaks the Roman Senate,* 1.377 Seeing that the principal Authors of this Rebellion are de∣servedly punished by the Immortal Gods, and by you, O Fathers Conscript, what doth it please you shall be done with the innocent people? Whereupon it was at lengeh decreed, That they should not only be pardoned, but that their City should be restored unto them, that so, as he there speaks, Ʋnde orta culpa esset, ibi poena consisteret; Where the crime began, the punishment should cease. Euripides highly commends Eteocles the Argive, for that,

Culpam ferebat semper illo Judice Reus ipse; non Ʋrbs Patria, quae passim mali Rectoris ergo sustinet calumniam.

Whilst he was Judge, the guilty person still Bare his own punishment; nor was't his will That Princes crimes their Subjects bloud should spill.

And the Athenians,* 1.378 as Thucydides tells us, repented of that Decree which they had past against the Mitylenians, whereby the whole City, rather than the principal Authors only of their destruction, should be put to the sword. And when Demetrius took Thebes, he put ten of the Leaders of the people to the sword, and spared the rest; as Diodorus testifies.

VI. And in them the Causes, whether pro∣bable or impro∣bable.

But even in the Authors of the War distinguish we must of the Causes; for some cau∣ses there may be, which though not just, yet are such as may easily delude men not other∣wise wicked. The Author to Herennius sets done this as a most equitable Plea for Par∣don, when to those injuries we have done, we have been provoked, not by any hatred to the adverse part, nor by our own cruelty, but by the Bonds of love and faithfulness to o∣thers.* 1.379 Seneca's Wise-man will sometimes dismiss his enemies with safety, yea and sometimes com∣mend them too for their fidelity, when he is convinced that their engagement in that War was upon just and honest grounds; as to express their loyalty towards their Prince, to assert their own liber∣ties,* 1.380 or to keep faith with their Friends and Confederates, whereunto they stood obliged. The Cae∣rites in Livy beg pardon of the Romans, for assisting their Kinsmen the Phocians and o∣thers, who according to the League which, with the good leave of the Romans, they had entred into,* 1.381 had helped Antiochus. Aristides, concerning the Thebans, who had under the Conduct of the Lacedemonians made War upon the Athenians, saith, That they were engaged in an unjust action, but not without a plausible excuse, being thereunto induced by their fidelity to the Prince of their League.* 1.382 Cicero also concludes them to be pardonable, who neither begin the War through hatred, nor prosecute it with cruelty: Besides, that War which is undertaken merely for Glory and Empire, is not to be prosecuted with too much severity: which King Ptolomy seems to insinuate to Demetrius, when he tells him, That he did not make War for Plunder and Spoil,* 1.383 but for Glory and Empire only. So Severus in Herodian confesseth, That when he first entred into a War with Niger, he had no very plausi∣ble pretence to quarrel with him; but the Empire lying at stake, and the Title as then dubious, each of them endeavoured to gain it to himself. What Cicero observed in the War between Pom∣pey and Caesar,* 1.384 doth very often fall out, That the thing in question was very obscure, the Contest a∣mong Commanders very great: insomuch that many of us know not which Cause is best. But in his Oration for Marcellus he thus pleads, We may perhaps be guilty of some failings, being as men subject to errour; but we are certainly clear from all wickedness. Thus also doth the same Cicero excuse Deiotarus to Caesar, for that he followed Pompey, not out of any hatred to Caesar; but being misled by vulgar errour. So likewise Salust in his History, The residue of the multitude, led more by popular reports than by their own judgment, do one follow another, e∣very one thinking his Leader wiser than himself. What Brutus sometime said of Civil War, may also be said of all other Wars, namely, That they should be more discreetly managed, than to suffer the common Souldiers to satiate their anger with the bloud of the Conquered.

VII. Even Enemies deserving death, may be sometimes par∣doned.

Yea though in strictness of justice they have deserved death; yet oft-times it is more agreeable to the Goodness, Modesty, and Magnanimity of a Conquerour to forgive than to revenge. Of this mind was King Theuderick in Cassiodore, Those Wars have al∣ways succeeded well to me, saith he, which have ended moderately; for he can never want the victory, that knows how to use it with temperance and clemency. Salust ascribes the prospe∣rity of the Romans and the greatness of their Empire,* 1.385 to nothing more than to their

promptness to forgive. And it was the advice of Tacitus, Quanta pervicacia in hostem,* 1.386 tanta benificentia adversus supplices; To shew as much love and kindness to poor suppliants, as courage and resolution towards Enemies. Yea and Seneca tells us, That the most generous of Beasts did disdain to tear and prey upon things vile and abject; Elephants and Lyons scorn things that are prostrate, and pass by what they have overcome.* 1.387 The Author to Herennius hath an excellent saying to this purpose, Our Ancestors, saith he, did very wisely observe this custome, never to put any King to death whom they had taken in War; but why? because, saith he, it would seem unreasonable to use that power which fortune hath now given us, to destroy them whom the same fortune not long before had so eminently favoured: And why should I now punish them? because they have led their Armies against me? This having now got the victory, I am willing to forget, Quia viri fortis est, qui de victoria contendant eos for∣tes putare; qui victi sunt, eos homines judicare, ut possit Bellum fortitudo minuere, Pa∣cem humanitatis augere: Because it is the part of a valiant Commander, to esteem men as Enemies whilst they are able to contend for victory; but being overcome, then to pity them as men; that so valour may end the War, and humanity confirm the Peace. But you will haply say, what if he had overcome you, would he have done so? wherefore then should you spare him? I answer, Quia talem stultitiam contemnere, non imitari consuevi; Because it is my custome to contemn, and not to imitate such folly. Now if this Author did mean this of the Romans (which is very uncertain, because he intermixes many strange, and indeed Ro∣mantick stories, with some true ones) it manifestly contradicts that which we read in the Panegyrick of Constantine the Son of Constantius, He acts the part of a prudent man, who having conquered Rebels can bind them to himself by a free pardon; but he, of a valiant man, who having vext them, can trample upon them. Thou hast revived, O Emperour, that ancient confidence of the Roman Empire, who triumphed in the death of those great Commanders whom they had taken in the War; for in those days their Captive Kings, after they had graced their triumphs, by attending the Conquerours Chariot from the Ports to the most publick place of the City, as soon as he turned his Chariot towards the Capitol, were hurried away to Execution. Only Perseus upon the intercession of Paulus Aemilius, to whom he had yielded himself, escaped the severity of this custome; but the rest having their eyes put out, remained for ever after in Chains: teaching thereby other Kings rather to preserve their faith and friendship with the people of Rome, than to exasperate their justice. But these things are written some∣what too loosely. Josephus in his History concerning the death of Simon Bar-jorae, testifies the same severity of the Romans; but he speaks it of such Captains and Commanders only as was Pontius Samnis, but not of such as carried the titles of Kings, whose words sound thus, The conclusion of the triumph was after that the triumphant Chariot was come to the Capitol; for there by the Ancient custome the Conquerour was to stay till tidings were brought of the death of that great Commander, whom he led in triumph; who having an halter cast a∣bout him, was presently drawn into the Market-place, his Keepers whipping him forward: for in that place by the custome of the Romans, such as were condemned for Capital crimes, were put to death, and there executed. So soon then as it was declared unto the Emperour, that his Enemy was dead, they immediately proceeded to perform all other the Rites that were in those cases provided very joyfully.* 1.388 The very same ceremonies doth Cicero also recite in his O∣ration concerning Punishments. Concerning great Commanders thus Executed, Histo∣ries afford us examples enough, and some few of Kings also, as of Aristonicus, Jugurth, Artabasdus; I should be loth to revive this obsolete custome,* 1.389 yet we read that Joshua put to death those Kings that he took Captives. And Dion relates of Sossius, That he whipt Antigonus with rods after be had fastned him to his Cross. But withal the same Historian wisely adds, Which no King ever suffered by any of the Roman Conquerours. The same History we may also read in Josephus.* 1.390 Eutropius likewise records it of Maximianus Herculius, that having slain the Francks and Almains, and taken their Kings Captives, He exposed them to be devoured by wild Beasts. So doth Ammianus concerning a King of the Almains, who being taken Captive was crucified. Yet even among the Romans there were divers Kings besides Perseus, that escaped the severity of that custome, as Syphax, Gentius, Juba, and in the time of the Caesars, Caractius, and others: Whence it may appear that the Romans (though as Cicero and others blame them for being too se∣vere in this case) had always some respect both to the causes of the War, and also to the manner of its prosecution, when they thus punish'd them: And therefore it was no ill advice that M. Aemilius Paulus gave to the Roman Senate in the case of Perseus, Si nihil humani metuerent, at divinam vindictam timerent iis imminentem qui victoriâ insolen∣tius utuntur; Though they stood not in awe of any humane power, yet they should do well to fear the anger of the Gods, who never failed to avenge themselves on those who abused their fa∣vours, with too much pride and insolency. Plutarch in the life of Agis observes, that in the Grecian Wars such reverence was born unto the office and dignity of a King, that their very Enemies durst not offer violence to the Lacedemonian Kings. An Enemy therefore that considereth not what humane Laws permit to be done, but what in equity he

ought to do, or what Religion and Piety requires to be done, forbears the shedding of the blood even of his Enemies; neither will he sentence any man to death, unless it be to preserve life or livelyhood to himself, or for such personal crimes as by the Laws of God or Man deserve death; yea, and though some of them do deserve it, yet in consideration of humane frailty, and of the instability of fortune or some such probable reasons, he either altogether omits, or at least contents himself with such a punishment as is not capital. It is an excellent observation that Diodorus makes, That whosoever succeeds prosperously in War, whether it were the expugnation of Cities or victory in Battel, Saepe fortunae magis quam virtuti debentur; are for the most part rather the gift of fortune, than the necessary effect of true valour. But to shew mercy unto such as they have conquered, is the work of Providence only. Thus Alexander in Curtius, Though he was highly in∣censed against the Authors of the War, yet he thought it prudent to forgive them all.

VIII. The innocent not to suffer for the nocent.

Concerning such as may occasionally or accidentally, but not intentionally be killed, mine opinion is (as I have already said) that if not for justice sake, yet for pity, we ought not to attempt any such design, wherein the safety of so many innocents may be con∣cerned, unless it be for some very great cause, or for the necessary preservation of a multitude.* 1.391 Of the same mind was Polybius, It is a good mans duty not to prosecute a mor∣tal War, though against such as are not just, any longer than till they have given satisfaction for the wrong done, and reformed what is amiss, but not to involve the innocent with the nocent in the same punishment, but rather to spare the nocents for the innocents sake.

IX. Children and Women to be spared.

These things being granted, it will be no hard matter to determine those things that are more special; for (as Seneca in those Books, wherein he seems to be angry with himself, observes,* 1.392) Puerum aetas excusat, Foeminam sexus; Children by their non-age, and Women by their sex are to be excused. God himself in the Wars of the Hebrews, even after the Peace was offered and refused, took special care for the preservation of Wo∣men and Infants;* 1.393 some few Nations only being by a particular Law excepted, against whom the War that was made, was not in the behalf of man but of God; and there∣fore it was called the War of the Lord.* 1.394 And when he commanded the Midianitish Wo∣men to be slain for crimes properly their own, he excepts those who were pure Virgins; yea, and when he threatned imminent destruction to the Ninivites for their crying sins, he suffered himself to be moved, to retract that sentence by the compassion he took on so many thousands of Infants,* 1.395 who knew not good from evil. Very like whereunto is that of Seneca, Num quis irascitur pueris, quorum aetas nondum novit rerum discrimina; Will any man be angry with an Infant, whose age is not yet capable of understanding the difference of things. So also is that of Lucan,

Crimine quo parvi caedem potuere mereri.

For what crimes may poor Infants slaughtered be.

If God then, who without any cause at all, may without violation of his justice, destroy any of what Sex or Age soever, as being Lord and giver of life; do thus, not only spare Women and Children himself, but command us also so to do: How doth it befit men, to whom God hath given no such Right over the lives of others, but what is necessary for the conservation of humane safety and society, to destroy in our rage so many innocent persons, who can neither resist nor deserve our an∣ger. Let us therefore in the first place observe, what the judgment of those people and of those times was concerning Infants, wherein Religion and Piety were in greatest esteem.* 1.396 We, saith Camillus in Livy, come not armed against Women and Children, for though we destroy their City, yet we spare them; but our Arms we use against such only as are armed. And Plutarch handling the same Subject, tells us, That good men observe some Laws even in War: Where we must note that he saith, among good men, that so we may distinguish between this moderation, and that licence which is supported only by custome and impunity.* 1.397 And Livy speaking elsewhere of Children saith, A qua aetate etiam hostes irati abstinerent; Whom in respect of their age an Enemy though enraged would spare. And in another place, describing the more than humane cruelty committed in War, he saith, Ʋsque ad infantem caedem ira crudelis pervenit; Their cruelty was such that they spared neither infants nor sucklings.* 1.398 Pliny in his natural History discoursing of the Lyon, saith, That when he roameth about he preys upon Men rather than Women, but never upon Infants unless extremely opprest with hunger. Horace passionately complains of the brutish cruelty of Achilles, who was so merciless, that he spared not Infants, no not in the Womb.

Nescios fari pueros Achivûm Ʋreret flammis etiam latentes Matris in alvo.

The Trojan Babes but lately born, And those that from the Womb were torn, In fire be burnt.

Philo also in his Special Laws tells us, That there may be a thousand specious pretences for men to quarrel with men; but for men to quarrel with infants and sucklings, Ne calumina quidam quod dicat, habet; Even malice it self can have no pretence, they are so very in∣nocent. Josephus likewise speaking of Manaemus, saith, That he that in War destroys, leaves nothing undone that cruelty can do. And ••e records it of Judas the Maccabite, that upon the taking of Bosra and Emphrone, He destroyed all the Males amongst them, and whomso∣ever he found in them able to fight. And in another place, he calls that punishment which Al∣exander surnamed Thracidas inflicted upon the Jewish Women and Children, A revenge more than humane. Agathias also concerning this Subject writes thus, Forasmuch as pie∣ty forbids us to exercise our rage upon infants newly born, who must needs be ignorant of their Fathers crimes, therefore shall this sin be surely and severely visited upon you. Nicetas also, or whosoever else continued that story unto the times of King Henry, writing of the Scy∣thians, who took Athira, saith, Neither were their Babes as yet sucking at their Mothers breasts, exempted from their outrage; but were either mowed down by the sword like grass, or suffered to pine and wither like blossomes for want of nourishment. A most barbarous act of men void of humanity, and having no sense of the wrong done unto nature herself, nor of the breach they made of the Laws both of God and Man, by extending their cruelty beyond what was necessary in subduing their Enemies. Whereunto we may add those Pious Mandates given by Queen Elizabeth, recorded by Mr. Cambden in the Year 1596.* 1.399 who when she sent out her Fleet against the Spaniard, gave charge that if they took any Towns, they should spare the Female Sex, and those of feeble Age; and offer violence to none but to such as resisted. Now that compassion which seems to have been in all Ages taken of Infants, and such as have not yet attained to the use of reason, is for the most part shewed unto Women, that is, if they have done nothing in their own persons that may particularly deserve punishment; or if they have not personally performed such service, as properly, belongs to Souldiers only. For as Statius notes, It is Sexus rudis insciusque ferri; A sex that is ignorant and unfit for War. As the Captain in Seneca's Tragedies demanded of Nero, who had termed Octavia an Enemy, Foemina hoc nomen capit? Can a Woman be so called? For which Cause Tucca and Varus, thought it fit to expunge those two Verses in the second of Virgils Aeneads, where Aeneas consults about the putting of Helen to Death. It was a magnanimous speech of the great Alexander in Curtius, It is not my custome to make War against Captives and Women, Armatus sit oportet quem oderim; He must be armed whom I look at as an Enemy. So Grypus in Justine denies, that either he or a∣ny of his Ancestors, in all their Wars foreign or civil, did ever after the Victory obtained, exercise their cruelty upon Women, whom their very sex did sufficiently guard, as well from the perils of War, as from the rage of the Conquerour. And so doth he in Tacitus profess of himself, That he never made War against Women, nor against any others, but such as he found armed to resist him. Valerius Maximus relating the barbarous outrage,* 1.400 which Munatius Flaccus exercised on Women and Children, calls it Ffferatam crudelitatem, & auditu etiam intolerabilem; A savage cruelty and not with any patience to be heard. The Carthaginians, as Diodorus testifies, at Salinae destroyed not the Women and Infants only,* 1.401 without the least sense of humanity; but their very Beasts also, which he elswhere calls, an act of cru∣elty. Now what Latinus Pacatus said of Women, that they were, Sexus cui Bella par∣cunt; A sex alway favoured in War. The like doth Papinus say of old men, that they are,

Nullis violabilis armis Turba, senes.

A sort of People that no Arms can hurt.

X. Priests and Students to be spared.

What we have said of Women and Children, may also be said of all men generally, whose manner of life is altogether abhorrent from deeds of Arms, Jure Belli in armatos repugnantesque caedes; By that Right of War which is most agreeable to the Law of nature, they only are to perish by the sword, who have actually taken up the sword.* 1.402 Where there is no power to resist, there can be no cause of revenge. So Josephus, It is but just and equal that they that take up arms, should be punished by Arms, but the innocent should always be indemnified. Thus Camillus in Livy when he had taken Veji,* 1.403 commanded his Souldiers to spare every man whom they found unarmed. And among these, they are in the first place to be spared, who are conversant about things sacred and holy: for anciently, it

was the general custom of all Nations to exempt such from bearing Armes; and for that cause were they also priviledged from the Force of Armes.* 1.404 For seeing they could do no violence, therefore was no violence done unto them. Though the Philistines were mor∣tal Enemies to the Jews, yet did they forbear to use any violence to the College of the Pro∣phets at Gaba. So we read of David, that he fled with Samuel to another place, where there was such another Colledge of Prophets, as to a place of refuge against all hostile vio∣lence, 1 Sam. 19.18. Hircanus, when he besieged Hierusalem, sent Sacrifices to the Tem∣ple; as the Jews testifie. And the Goths are commended by Procopius for sparing the Priests that belonged to the Church of S^t Peter and S^t Paul, being situate without the Walls of Rome.* 1.405 Plutarch records it of the Cretians, That though they were embroiled in Civil Wars, yet did all Parties carry themselves inoffensively towards their Priests, and to∣wards those that had the charge of burning the Dead.* 1.406 It is observed by Strabo, That when all Greece was harassed with Intestine Wars, the Aeleans being consecrated to Jupiter, together with those that came to sojourn with them, lived in great peace and security. And Servi∣us upon the seventh of Virgil's Aeneads, speaking of a Reverend Old Priest, saith, Eum de∣fendebat à Bello, si non Aetas, saltem Religio Sacerdotis; That he was priviledged from all vi∣olence,* 1.407 if not by his Age, yet in respect of his Priesthood. In like manner also they that went up to try their Fortunes at the Olympian, Pythian, Nemaean and Isthmian Games, though it were in the time of War,* 1.408 were on all sides protected. The like Priviledges and Im∣munities from the calamities of War were due unto such as, though no Priests yet, do voluntarilily sequester themselves from worldly Affairs, giving themselves up wholly to piety and devotion. For whom the Ecclesiastical Canons (grounded upon natural equity) do make the same provision as they do for Priests. To these also we may add those who spend their time in either the invention or perfection of such arts as are useful or necessa∣ry for humane Society. Wherefore Protogenes being demanded by Demetrius, How he durst trust himself without the Walls of Rhodes? Answered, That he knew Demetrius warred against the Rhodians, not against Arts.

XI 〈◊〉〈◊〉 Husband∣••

Next unto these are Husbandmen, who are also provided for by the Canons. Diodorus Siculus records this in honour of the Indians, That in their Wars they that are Souldiers do kill an•• destroy one another without mercy; but such as were employed in Husbandry they never mo∣lested,* 1.409 as being Benefactors in common to all Parties. The like doth Plutarch testifie of the ancient Corinthians and Megarenses, Nemo Agricolas ullo afficiebat malo; Not one of them would wrong an Husbandman.* 1.410 Thus favourable was Cyrus in Xenophon, as appears by the M ssage he sent to the King of Assyria, wherein he tells him, That he was very willing that Husbandmen should follow their Callings without any disturbance. And it is a very honourable te••timony that Suidas gives of Belisarius, and worthy of all mens imitation, That he was so great a friend to Husbandmen, and took such care for their indemnity, that whilst he com∣manded the Army,* 1.411 no Souldier durst ever injure them. The like Testimony doth Procopius give of him.

XII. And Merchants and the like.

Next unto Husbandmen, the Canon provides for Merchants, and not only for such as are Factors and Sojourners in the Enemies Country for a while, but for such as are perpetual Subjects; because the course of these mens lives are altogether averse from War: where also we must note, That under this general name of Merchant are comprehended all kinds of Tradesmen and Artificers, who for their gain do usually prefer Peace before War.

XIII. And Captives.

Let us now proceed to such as have born Armes: That of Pyrrhus in Seneca we have al∣ready quoted, namely, That though the Law permits us to do what we please to Captives; yet equity and conscience forbid us to take away their lives. Of the like opinion was Alexander, who (as we have said) places Captives in the same condition with Women: whereunto we may add that of S^t Augustine to Boniface,* 1.412 Hostem pugnantem necessitas pe∣rimat, non voluntas; It is not cruelty, but necessity, that makes us destroy a fighting Enemy. As force and violence is properly used against those that are armed against us; so to those whom the chance of War hath left naked and unarmed, mercy and compassion is peculiarly due; especially to those who can no ways endanger the publick peace. Xenophon writes of Agesilaus, That he gave command to his Souldiers not to destroy their Prisoners as Malefactors, but rather to preserve them for humanity sake. And Diodorus testifies of the Greeks, That they always fought va∣liantly where they found resistance: But to those that were subjected they were very merciful. Sa∣lust in his Jugurthine History, speaking of some young men, who having yielded themselves, were put to death, saith, That it was done contrary to the Law of Armes, that is, contrary to equity and the custom of civilized Nations.* 1.413 Lactantius of the times he lived in, saith, Par∣citur victis & est locus inter Arma clementiae; We spare those whom we have conquered, and there is clemency to be used,* 1.414 even in Armes. Tacitus commended Primus Antonius and Varus, two Flavian Commanders; for that they never committed any act of cruelty, beyond the place where the Battel was fought.* 1.415 So likewise Aristides, It is the custom of our Age by force of Armes to subdue those that resist us, but to deal mercifully with those that submit unto us. Con∣cerning such as were taken Prisoners in the War, the Prophet Elisha puts this Question to

the King of Samaeria,* 1.416 Wouldst thou kill those whom thou hast taken Captive with thy Sword and with thy Bow? When one in Euripides demanded, Whether the Grecian Laws did forbid the kil∣ling of an enemy, he as readily answered, Quem Mars reliquit Praelio superstitem; That they did, if that Enemy survived the Fight. And therefore Eurystheus, being taken Prisoner, com∣forts himself in this,

He that kills me guiltless shall never be.

Plutarch comparing Marcellus with Pelopidas, seems to condemn Marcellus for his cruelty in shedding bloud unnecessarily after the Victory, whereas neither Pelopidas nor Epaminon∣das did ever put any to the Sword whom they had overcome, neither did they take away the liberty of any City that they took; neither would the Thebans (as it was believed) have exercised that cruelty upon the Orchomenians, had either of these Commanders been present. Besides, when Scipio would have put all the Inhabitants of Ʋtica to the Sword,* 1.417 wit••out regard of Age or Sex; because they had taken part with Caesar, Cato would not suffer him: But protesting against it as an act of inhumanity, and calling the Gods to witness in open Council, with great difficulty he saved them from so great a sla••ghter. Procopius in the first of his Persian Wars, which he also repeats in his second, saith, That to use cruelty to the Conquered, is repugnant to the Rules of Piety; so that when Cabadas King of Persia, after he had taken the City A••mada by storm, had made great slaughter among the Inhabitants, a certain old Priest told him, That to kill so many Captives, was not King y.* 1.418 And the same Procopius elsewhere records an excel∣lent Speech of Belisarius to his Souldiers, upon the taking of Naples, disswading them from the unnecessary effu on of bloud; Do not (saith he) extend your hatred of your enemies be∣yond measure: No Conquerours continue to hate the Conquered: If you kill them now, you do not abate the number of your Foes, but of your Subjects. Do not therefore prosecute your revenge too far; but consider, that having subdued them, to become now Slaves to your own passions, is igno∣ble.* 1.419 When Alexius the Emperour was perswaded by one of his Council to kill his Scythi∣an Captives, he made this noble Answer, Though they be Scythians, yet are they men; though they be enemies, yet do they deserve pity: It is the chance of War only that puts the difference be∣tween us and them. It is a most excellent Observation that we read in Gregoras.* 1.420 Whatsoever is done in the heat of Fight is pardonable, because the faculties of Discourse and Ratiocination is (as it were) block'd up; so that the hands, being as it were drunk with anger and revenge, and wanting the guidance and manuduction of Reason, do even they know not what. But when by our strength and courage our dangers are over,* 1.421 and our Reason enjoys her liberty to examine and judge of what we are about, and to issue out her Mandates to the hands for execution; then if a∣ny things be done unjustly or unseemly it plainly shews the perverseness of the mind. Julian in his second Panegyrick on Constantius, under whose Person he describes a vertuous Prince, saith, That having conquered his enemy by force of Arms, he makes no farther use of the Sword, esteeming it impious to kill him who is no longer able to defend himself. And therefore Diodorus Siculus condemneth the Byzantines and Chalcedonians of notorious cruelty, for killing a multitude of Captives taken in War. And in another place he tells us, That it was a Law generally observed to spare Captives, and that he that violates this Law doth, doubtl••ss, sin against God and man. And hence it is, that in all Stories we find those Commanders high∣ly commended, who having taken a multitude of Captives, whom they could not without danger and charge keep, have chose rather freely to dismiss them, than to kill them.

XIV. They are to be spared that surrender on equal Condi∣tions.

Wherefore they that in a Battel shall cry for Quarter, or in a Siege shall offer to yield upon Conditions to save their lives, are neither of them to be rejected. The Romans (as Procopius testifies* 1.422) thus bespeaks the Persians whom they held closely besieged in the Fort of Petra, We, say they, do extremely commiserate your hard condition, and would gladly spare you, though ye wish to dye; and that life which ye so nicely disdain, we would save, as it becomes Christians and Citizens of the Roman Empire. And therefore Arrianus speaking in that Slaughter, which the Thebans made of their Captives that had yielded to mercy, saith,* 1.423 That it was not according to the custom of the Grecians. The like we read of Thucydides, Ye did accept of us, who willingly and with lifted up hands begged to be received to mercy, and it is not the custom of the Grecians to kill such. The Syracusian Senators in Diodorus tell us, That to spare a Suppliant is the sign of a truly noble and magnanimous spirit. And Sopater confesseth, That it was the custom of the Grecians to save such as begged for life in the Wars. In Towns that were besieged this custom was generally observed by the Romans, That if they yielded before the Battering Ram toucht the Walls, the lives of the Citi∣zens were saved. Caesar signifies to the Advatici, That he was willing to preserve their City, in case they would surrender before his Ramms approached their Walls: Which custom is yet observed, with this difference, In places meanly fortified before the Cannons begin to batter; but in places of great strength, before a breach be made in their Works. Howbeit, Cicero respecting not so much what may lawfully be done, as what in equity ought to be done, gives his opinion in this Case thus, Seeing that we ought to provide for

the safety of those whom we conquer, it is fit that we receive them into protection, who shall sur∣render themselves, though our Ramms have battered their Walls. The Jewish Interpreters note, That it was a custom among their Ancestors, when they had laid close Siege against any Town, not to incircle it with a Ditch quite round, but to leave one part thereof open for such to fly, as would save themselves by flight; whereby the Town might be taken with the least effusion of bloud. Thus Scipio Aemilianus being commanded to destroy Carthage, made Proclamation, That they that would provide for their own safety by flight, might do it freely; as Polybius testifies.

XV. They also that surrender without condi∣tion.

The same equality bids us to spare those who are willing to surrender themselves to the will of the Conquerour, without any Conditions at all. Trucidare deditos saevum, To kill those who are at our mercy is cruelty, saith Tacitus† 1.424. So also Salust, rehearsing that bloudy fact of Marius in putting to death those young men among the Campsans that had deli∣vered themselves to mercy, saith, That it was facinus contra Jus Belli, A cruelty scarce ju∣stifiable by the natural Right of War. And in another place he complains of the like cruelty, saying, That he was so far transported with rage, that he put to the Sword not only men armed, and such as were in Battel, which he might do by the Law of Armes; but even Suppliants also that begged for mercy. So also Livy, Qui deditis contra Jus, ac fas Bellum intulisset; He made War even against those that yielded themselves, contrary to the Laws of God and good men. Nay, the principal design of a General should be rather to force his enemy through fear to surrender, than to kill them. And herein is Brutus to be commended, who would seldom fall on his enemy by assault, but chose rather to encompass them with his Horse, commanding his Souldiers to spare them, who e're long would be his own.

XVI. Unless some very great crime do hin∣der.

Against these Rules of natural Right and Equity, are usually brought these specious Exceptions, which notwithstanding have little of solidity in them: as namely, What if such acts of cruelty be done by way of retaliation? what if they be done by way of ex∣ample, to deter others? or what if it be done against such as have been notoriously obsti∣nate? None of these are sufficient to justifie an unnecessary or an unjust Slaughter, as is ea∣sily to be collected by what we have already written concerning the just causes of kil∣ling Enemies. For from Captives and such as actually deliver themselves or desire so to do, there can be no danger. That therefore they may justly be put to death, there ought to precede some such crime, as to an impartial Judge should deserve death. And thus we may haply read of cruelty sometimes used unto such as have either been taken Prisoners, or yielded without Conditions of life, if being convicted of the injustice of the War, they have still persisted in Armes, or if they have reproached or defamed the Conquerour with bitter invectives, or have broken their faith, or somewhat of the Law of Nations, as the priviledges of Ambassadours, or have been Traitors, Renegadoes, or the like. But as to the Objection of retaliation, Nature doth not admit thereof, unless it be against those numerical persons, who have done the wrong. Neither will it suffice to say, That the Enemies do all of them make but one Body by their combination against us, as may easily be gathered by what hath been already said, when we treated concerning the com∣munication of punishments. For, as we read in Aristides, Is it not a shame to imitate that as just, which we condemn in others as unjust. Upon which account it was that Plutarch blames the Syracusians for putting to death the Wives of Hicetas,* 1.425 and his Chil∣dren; for no other cause, but because Hicetas had before put Dion's Wife, his Sister and little Son to Death. But as to the profit which may hereafter be expected by putting a ter∣rour into others,* 1.426 this gives no positive Right to put any man to death that yields himself Prisoner. But if there be just cause of death before given, this may be one cause a∣mongst others why the punishment due may not be remitted. Again, an obstinate endea∣vour to maintain our own Party, if our cause be not altogether unjust or dishonest, doth not at all deserve punishment,* 1.427 as the Neapolitans argue in Procopius; or if it do, surely that punishment cannot amount to death, if equity may be the Judge. When Alexan∣der had commanded all the Youth in a certain Town to be put to death, because they de∣fended it so resolutely against him,* 1.428 the Indians told him, That he made War like a Thief or a Murderer; Latronum more bellare Indis visus est, saith the Authour: whereupon to pre∣serve his own honour he ever after used his Victories with more clemency. Much more for his honour it was, that he would have spared some Milesians, because he perceived them to be very generous and faithful to their own Party; as Arrianus records. When Phyto the Praetor of Rhegium was dragged out to tortures and death, because he had resolutely de∣fended his City against Dionysius, as they dragged him along he cried out, That the Ty∣rant had thus punished him, for no other reason than because he would not betray the City to him. For which cause the Gods would certainly revenge his death upon the Tyrant within a short time. Such punishments as these Diodorus calls unjust. For mine own part, I am highly pleased with that wish of Lucan's,

—Vincat quicunque necesse Non putat in victos saevum distringere ferrum, Quique suos Cives, quod signa adversa tulerunt, Non credit fecisse nefas—

His be the Day, who can contented be To conquer, but not kill his Enemy; That can believe his Neighbour honest, though He march against him as an Armed Foe,

So that we understand the word Cives, not for Neighbours inhabiting the same Town or Country, but Citizens of the same Universe. Much less can the griefs we conceive for the like loss we have sustained in War, make the unnecessary shedding of bloud to be just and lawful, as we may read of Achilles, Aeneas, and Alexander, who were wont to cele∣brate the Funeral of their friends whom they had lost in the War (thinking thereby to make an atonement for them) with the bloud of their Prisoners, and such as had yielded themselves to the mercy of the Conquerour; which Homer deservedly condemns as an un∣just act; and which after Ages adjudged as cruelty, as Servius notes upon Virgil.* 1.429

XVII. A multitude offending may be justly par∣doned.

Yea, and where their crimes are such as to deserve death, yet is it the property of mercy to abate somewhat of the extremity of our Right, by reason of the multitude of Offenders; an example whereof we have even in God himself, who commanded the Hebrews to tender Peace to the Canaanites, and other bordering Nations, though exceedingly wicked, that so paying an Annual Tribute to the Conquerour they might enjoy Peace. Pertinent to this purpose is that of Seneca, When some particular Souldiers in an Army mutiny, the seve∣rity of a General is necessary; but if the whole Army threaten a revolt, then is a General Par∣don seasonable. And again, Quid tollit iram sapientis? Turba peccantium;* 1.430 What is it that sooner appeaseth the wrath of a Wise-man, than the multitude of Offenders? Quicquid multis peccatur inultum est, When the people generally offend, there revenge is not so proper as pardon. For as Livia in Xiphilinus observes out of Dion, He that will punish all Offenders according to the utmost rigour of the Law, will be enforced to destroy the greatest part of Mankind. That of S^t Augustine is very seasonable advice in this Case, He that would reform the errours of a multitude, must do it magis monendo quam minando, more by perswasion than by threatnings. For severity is then seasonable when the number of Delinquents are but few. But when they are numerous, then that of Lucan holds true:

Tot simul infesto juvenes occumbere Letho, Saepè Fames, Pelagique furor, subitaeque ruinae, Aut Coeli Terraeque Lues, aut Bellica clades, Nunquam poena fuit.

Sadly at once so many Youths to slay, Sometimes a Famine, or a Sea-breach may, A sudden Fall of Buildings, or a Plague From Heaven and Earth, or Wars unbridled rage; (But in cold bloud to shew such ire and teen) By way of punishment was never seen.

And therefore to avoid the effusion of much bloud was the invention of Lots, or casting of Dice, (as Cicero testifies) whereof Salust gives this reason, where speaking of such bloudy and inhumane punishments, he saith, Quibus vastatur Civitas magis quàm corrigitur,* 1.431 Whereby a City is rather wasted and depopulated, than reformed.

XVIII. Hostages to be spared, unless in themselves criminous.

By what hath been already said, it may easily be gathered what the Law of Nature doth determine concerning Hostages. In Ancient times when it was generally believed, that every man had as much right over his own life, as he had in any other thing where∣in he claimed a propriety; and that this right, was either by explicite or implicite con∣sent transferred into that Commonwealth or City wherein he lived, it was not to be wondred at; if, as we may read, those hostages, though in themselves innocent, were sometimes put to death for the offences of those Cities whereunto they belonged, whe∣ther they were delivered by their own peculiar consent, or by the publick, wherein theirs also was included: But since a purer light hath discovered unto us, that the sove∣raign power over mens lives is reserved in God alone; it follows, that no man can by his own consent only, give unto another this power, either over his own life, or over the life of his fellow Citizen. Wherefore that noble Captain Narses (as Agathias re∣lates) did abominate it as an act of cruelty, to put to death such hostages, as were no

ways guilty of those crimes that were committed against him. So also have others done in like cases, even by the example of Scipio (perhaps) who was wont to say, That he scorned to take revenge on the innocent hostages, but he would severely punish the Delinquents them∣selves, Nec ab inermi sed ab armato hoste poenas expetiturum; Disdaining (it seems) that revenge that was taken upon an unarmed foe. The very same answer do we read of, given upon the like occasion by the Emperour Julian, as Eunapius testifies. That which our modern Lawyers, and those no mean ones hold forth, namely, That such conventions and agree∣ments are valid, in case they are confirmed by ordinary and general practice; I also condescend unto, in case they will understand by right, that which is not punishable; for so, in this argument it is usually taken: but in case they imagine, that they that shall take away the life of any, by vertue of such a pact or agreement only, do not sin, I fear that they are both deceived themselves, and by their perilous examples deceive others. But plainly, if he that comes as an hostage be at that time, or at any time before hath been a notorious offender, or hath afterwards in any matters of moment satisfied his faith given in any of these cases, his punishment may be without injury. But the flight of Clelia over Tiber, when she made her escape to King Ethruseus, was not only safe, but to use Livys own words, an honourable attempt; because she came as an hostage, not by any voluntary act or consent of her own, but by the command of the City she was sent from.

XIX. All needless and unprofi∣table comba∣tings are to be avoided.

This one thing is yet to be added, that all Duels and Tryals by Combitants, seeing that they are of no use, either to the decision of right, or the ending of a War, but merely for ostentation of strength, are not only repugnant to our Christian profession, but to the Laws of humane society. And therefore all Commanders in all Armies should carefully provide against such unprofitable effusion of Blood, as being lyable to render an account the••••of to those whose Vicegerents they are; because, as Salust observes, it is the honour of a General, Incruento exercitu victoriam deportare; To conquer with the least effusion of blood that may be. Tacitus writing of the Catti, a Nation at that time eminent for their Valour and good Conduct, saith, Rari excursus, & fortuitae pugnae; They made but very few excursions, and fought as few Battels but upon advantage. Up∣on which account it was that Plutarch deservedly censured Demetrius, Who rashly expo∣sed his Army to unnecessary dangers, rather out of vain ostentation, than hopes of gain.

CHAP. XII. Moderation in the spoiling of an Enemies Country.

• I. What wast is just, and how far forth it is so.
• II. Things profitable unto us, and out of the Enemies power not to be wasted.
• III. Nor in case there be great hopes of a speedy victory.
• IV. Nor if the Enemy may sustain them∣selves without them from other parts.
• V. If the things to be destroyed are of no use to the maintenance of the War.
• VI. As those things that are sacred or there∣unto belonging.
• VII. So likewise those that are Religious.
• VIII. The benefit that attends such a mode∣ration observed.

I. What spoil is just and how far forth.

THAT one man may destroy the things of another without injustice, it is necessa∣ry that one of these three things should proceed: Either such a necessity as may be presumed to have been excepted in the institution of primary Right or Dominion, as when a man merely to avoid some imminent danger to himself, shall cast the Sword of a madman into a River; yet even in such a case, there remains an obligation to make restitution to the full value, according to the opinion of the best Authors, as we have elsewhere declared: Or secondly, there proceeds some debt,* 1.432 which arose from some inequality; and then that which is wasted is so understood, as if it had been taken in satisfaction of that debt, for otherwise it would not be just: Or thirdly, there must proceed some crime or wrong done that may deserve such a punish∣ment; or which, such a punishment doth not in proportion exceed. For as it is well observed by a Judicious Divine, It cannot stand with equity or right reason,* 1.433 that a whole Kingdom should be wasted, because some herds of Cattel have been driven away, or some hou∣ses or villages burnt: which also is acknowledged by Polybius, who would not have pu∣nishments by War multiplied without end or measure; but rather that all injuries should be expiated by punishments proportionable. And for these causes, and within these bounds and limits, an Enemies Country may be spoiled and wasted without injustice; but otherwise, unless it be for some great advantage to do another man hurt, and to gain thereby nothing, is but mere folly.* 1.434 Therefore wise men are usually swayed by matters of profit, whereof the principal is that noted by Onesander, Where he adviseth a Prince to destroy, burn, and lay wast his Enemies Country, because, saith he, a scarcity of money and victuals will soon shorten the War, as plenty will prolong it.* 1.435 Consonant where∣unto is that of Proclus, It is the duty of a good General to cut off forage from his Enemy, and provisions from every side. So thought Curtius of Darius, That having nothing to feed himself and his Army with, but what he must get by rapine and spoil, he must needs at length be overcome by want and famine. Now, that spoil and devastation may easily be di∣spensed withal, which soonest enforceth an Enemy to sue for Peace. Philo the Jew in his Book of a contemplative life, saith, They that are in Arms do ••sually destroy and lay wast their Enemies Country, Ut hostes eo facilius se dedant rerum necessarium penuria; That so being punished by famine, they may without the hazard of a Battel be compelled to yield themselves to the Conquerour. After this manner did the Halyattes make War upon the Milesians, the Thracians against the Byzantines, the Romans against the Campanes, Capenates, Spaniards, Legurians, Nervians, and others. But if we would diligently observe how our modern Wars are managed, we shall find that such devastations are now a days made more out of hatred, than any prudent council: for it so falls out oft-times, that either those reasons which would perswade us thereunto do cease; or those that disswade us from it, are more forceable.

II. No wasting of things profita∣ble to us, and without the reach of the Enemy.

And this in the first place happens, when that part of the Country which yields profit is so in our possession, that the Enemy can reap no benefit by it. And hereunto doth the Divine Law properly look, when it permits wild and unfruitful trees to be cut down to make engines for War, but commands such as are fruitful to be preserved for food* 1.436; adding this reason, because trees cannot rise up in Arms against us as men may: which precept, Philo by a parity of reason enlargeth to fields and other lands that are fruitful, affixing these words thereunto, Quid rebus inanimis quae & mites sunt, & mites fructus ferunt, irasceris? Why art thou angry with things inanimate, especially with such as are in themselves gentle, and that yield sweet and delectable fruit unto others? Do they like men express any menacing signs of hostility against thee, for which they deserve to be eradicated? Are they not much more profitable to the Conquerour whilst they live and bear fruit, than when they shall be torn up? Do they not yield thee plenty of things, not only for necessity, but for delight and pleasure? For trees and fields as well as men, do in their respective seasons pay tribute to

the Conquerour, yea and much better, being so necessary, that we can no ways live without them. And in another place, he commends the equity of Moses, in restraining the licence of Souldiers, from destroying Trees bearing Fruit or Corn before it be ripe, adjudging it very unjust, Iram in homines conceptam erogari in ea quae causa mali nullius sunt; That our indig∣nation against men should be exercised upon things that do no ways hurt us; besides, seeing that all sublunary things are mutable, and that nothing long continues in the same state wherein now it is, some provision ought in prudence to be made for the future. Possible it is, that they that are now most bitterly enraged against us, may upon debate and conference had, become our Friends and Allies. And then we will easily confess, That Amicos necessariis fraudare, durum est; To defraud our Friends of necessaries, is very hard. It is very true what from our Ancestors we have received, We ought so to trust our friends, as if at some times or other they may be our Enemies; that is, that every man ought to reserve something within his own breast of what near∣est concerns himself, whereby to provide for his own safety; and not so wholly to discover himself by his words or actions, as that he may one day repent himself by reason of the vehemency of either passion, and blame his own rashness when it is too late to help it. This in all Cities is observed as an Oracle, That in times of Peace they ever provide for War; and in times of War they lay the foundations of a firm and lasting Peace: we should neither place too much confidence in our friends, because they may prove our enemies; neither should we appear too diffident of our enemies, because they may hereafter prove our friends. But if the hopes of our enemies conversion cannot prevail with us to do them civil offices, yet let us remember, That there is no hostility at all against us in those things which an enemies Country produceth. For all things there are ser∣viceable, all things profitable, all things pleasureable, or very necessary to our selves. All its fruits affording unto us, either nourishment, or somewhat that is equivalent unto it. Again, Non opportet Bellum inferre Belli nesciis; We ought not to make War upon those things that are so amicable, so innocent, that they know not what War means. To burn, cut down, and utterly to extirpate those things which Nature by heat from above and moisture from beneath, hath so tenderly brought up and nourished, to no other end but to pay their yearly Tribute unto men, as unto Kings, savours of too much inhumanity. Thus far Philo; wherewith agrees that of Josephus, If Trees, saith he, could speak, they would certainly upbraid us with injustice, for inflicting upon them the plagues and miseries of War, who are in no wise guilty of the causes thereof. Neither hath that Saying of Pythagoras any other ground than this, where he tells us, That to cut down or to hurt tender Plants or Trees that bear Fruit, is a sin against Nature, and not justifiable before God.* 1.437 Porphyry likewise describing the manners of the Jews, taking (as I suppose) their Customs to be the best Interpreters of their Laws, extends this Custom or Law to all Beasts that are serviceable for Tillage. Their Talmuds and their Interpreters do yet stretch out this Law somewhat farther, even to all things that may causelesly perish, as the firing of Hou∣ses, the poysoning of Springs, or the spoiling of any thing that may afford nourishment to Mankind, unless it be such Trees or Houses, as being near unto the Walls may thereby hin∣der Souldiers in the performance of their Military Duties. Agreeable with this Law was that prudent moderation of the Athenian General,* 1.438 Timotheus, Who would not suffer his Souldiers to destroy any House or Village, nor cut down any Plant that bare Fruit. There is the like Law extant in Plato, prohibiting the laying of any Lands waste, or the demolishing of any Houses. And if we may not waste the Country of an Enemy, much less when by Con∣quest we have made it our own.* 1.439 Cicero did not approve of the demolishing of Corinth, though the Citizens had unhandsomly treated the Roman Ambassadours. And in another place he calls that War an ugly,* 1.440 horrid and malicious War, that was made against Houses, Walls, Pillars, and Posts. Livy highly commends the lenity of the Romans, for that having taken Capua,* 1.441 they did not pull down the Walls, nor set on fire the innocent Houses. There is a most excellent Epistle upon this Argument extant in Procopius, which Belisarius writes to Totilas, It hath been, saith he, reputed in former Ages the Glory of wise men to raise fair and magnificent Structures, to preserve their Names and Memories; but to rase and demolish them being built was ever esteemed the badge of folly and madness, as not blushing to transmit to Posterity the Monuments of their own vileness. It is confest by all men, That Rome is the most magnificent and beautiful City of all that the Sun beholds: Neither did it arise to this height of splendour by the bounty or industry of any one man, or in few years; but many Kings and Emperours, and a vast se∣ries or succession of Noble-men, many Ages, and a stupendious Mass of Treasure, have drawn hither, as other things, so the most expert Artificers in the World, whereby having by little and little brought this City to that perfection, wherein we now see it, they have bequeathed it to future Ages, as an everlasting Monument of their Vertue and Magnanimity; wherefore to rase this City, were to be injurious to Mankind in all Ages; to our Ancestors, in sacrilegiously burying in its Ruines the memory of their noble Acts; to our Posterity, enviously depriving them of the very sight of those noble Structures, whereby they may be excited to the imitation of their Vertues. And if it be thus, then consider that one of these two must necessarily fall out, either the Emperour must vanquish, or you: If you be Conquerour, then in destroying this City you destroy not what is your Enemies, but your own; and in preserving it, you enjoy the richest and most beautiful place

on the Earth. But in case thou be worsted, thy clemency in preserving this great City shall plead strongly to the Emperour for mercy; but in destroying it, all hopes of favour lye buried in the ruines of it: and thou shalt not only lose whatever thou canst gain by the Spoil, but an eternal brand of shame and infamy shall cleave unto thy Name throughout all Ages, according to thy dealings herein. For fame is equally ready to report either good or evil of us. Potentum quales sunt a∣ctiones, talis existimatio; According to the lives and actions of Grandees, so is their fame to the Worlds end. Thus far Procopius. It is true,* 1.442 that God himself in the sacred Scriptures did not only command, that some Cities should be destroyed by fire, but also that the Trees of the Moabites, contrary to this General Rule, should be cut down. But this was not done out of an hostile malice, but out of a pure detestation of their sins, which were ei∣ther publickly known to deserve such a punishment, or at least were so reputed in Gods account.

III. If there be great hopes of Victory.

Secondly, We should forbear to waste an enemies Country, where the possession of it is in question, especially if there be any probable hopes of a speedy Victory, whereby both the Land and the profits thereof are likely to become the reward of the Conqueror. So A∣lexander the Great (as Justine tells us) prohibited his Souldiers from depopulating Asia, telling them, That they ought rather carefully to preserve their own, and not to destroy that which they came to possess. Thus Gelimer with his Vandals besieging the City Carthage,* 1.443 made no spoil, nor took any pillage; but secured the Country to himself as his own. The like Speech I find in Helmoldus, Nonne Terra quam devastamus nostra est?* 1.444 Is not the Land that we waste, ours? and the people whom we destroy, our Subjects? Wherefore then are we become Enemies to our s••lves? wherefore do we drive away those who should serve us with food, and pay us Contributions? So Quintius, when Philip over-ran Thessaly, wasting all before him, perswaded his Souldiers so to march, as if the whole Country were now their own. Thus likewise Croesus perswades Cyrus, not to give Lydia to be spoiled by his Souldiers, by this very Argument, Non Ʋrbem meam, non res meas diripies; nihil enim ad me ista pertinent: Tua sunt: Tua isti perdent. No sober man will voluntarily destroy his own. This Country, these 〈◊〉〈◊〉 these Goods, are no longer mine, but thine; The fortune of the War hath left me nothing: 〈◊〉〈◊〉 thine by the Right of Conquest: Whatsoever then the Souldiers thus waste and consume, is not 〈◊〉〈◊〉 but thine. And to those who after the Conquest shall so waste and spoil what they have conquered, may that of Jocasta to Polynices be not unfitly applied,

Petendo Patriam perdis:* 1.445 ut fiat tua Vis esse nullam: quin tuae Cansae nocet Ipsum hoc, quod Armis vertis infestis solum, Seget ósque adultas sternis, & totas fugam Edis per Agros. Nemo sic vastat sua. Quae corripi Igne, quae meti Gladio jubes, Aliena credis.

Whilst thou seekest to regain thy Country, thou destroyest it; by endeavouring to make it thine, thou makest it none. It is a good Argument against thy Title, that thou labourest to destroy it. No man doth so to his own; that which we wilfully consume by Fire and Sword, we confess to be not ours, but our enemies. To the same sense are those words of Curtius,* 1.446 Quicquid cor∣rupissent hostium esse confessi; Whatsoever they had wasted they confess to have been their Ene∣mies.* 1.447 Nor very discrepant are those Arguments which Cicero in his Epistle to Atticus u∣seth against that Counsel that Pompey gave, namely, To destroy his own Country by Fa∣mine.

IV. If the Enemy may be else∣where suppli∣ed.

Thirdly, We ought to forbear the wasting of an Enemies Country, if we see that they may be otherwise supplied with necessaries, either by Sea or Land. Archidamus in Thucy∣dides, in that Oration wherein he disswades the Lacedemonians from making War against Athens, enquires what hopes they had to subdue the Athenians; If by wasting and de∣stroying their Country, they might do well to remember, That the Athenians had other Lands and Countries under their Dominion, which confined not on their Cities (as Thrace and Ionia) and that they wanted neither Ships nor Ports, whereby they might be supplied with necessaries from any other Coasts. In which Case it was best to cherish and protect the Husbandman, even to the Enemies Quarters; that upon payment of their Contributions to either Party, they might enjoy Peace in the midst of War: which we have seen done, not only in our own late Civil Wars in England, but (not long since) in the Wars of the Ne∣therlands; which also is very agreeable to the practice of the Indians, among whom, as Diodorus writes, Their Husbandmen enjoy the very same Priviledges and Immunities, as do their Priests; insomuch that they follow the Plough without danger, even in the midst of their Troops, and to the very Skirts of their Camp. And a little after he adds, There is no enemy that will willingly wrong Husbandmen, but will rather preserve them from all injuries, as being the common Benefactors to both Parties. Wherefore it was agreed and concluded in the War

between Cyrus and the Assyrian, as Xenophon records it, That, Cum agricolis pax esset, cum armatis bellum; Though the souldiers might fight, yet the Husbandmen should live in peace. Nei∣ther do the Indians, as Diodorus testifies, either burn their Enemies Corn, or cut down their Trees. Polyaenus reports the same of Timotheus, namely, that he set the fruitfullest part of the Country to Farmers and Husbandmen;* 1.448 yea, and as Aristotle adds, sold the Corn even to his Enemies, and with that money paid his Souldiers. So did Viriatus in Spain, as we read in Appian.* 1.449 And Totilas, Whilst he besieged Rome, gave no disturbance to the Husbandmen throughout all Italy, but commanded them to follow their business without fear, so as they sent their annual contributions unto him. This is the Glory of a Conquerour to defend what he hath won, and not to destroy it. And this we have seen in our days to be practised by the Hollanders, who ordinarily sold their Corn and other provisions even to their Enemies, and with the money so raised paid their own Army, with as much equity as profit, even to the admiration of foreign Nations. These manners and customs do our Canons commend to our Christian imitation; because as we profess to be more civilized, so ought we to express more humanity in our Wars, than was practised among the Heathens; whereof they enjoin us not to spare not the husbandmen only, but the Oxen and Horses wherewith they plow, and the seed which they carry out to sow their ground. For the self same reason doth the Civil Law forbid to take in pawn any of those instruments that belong to the plough. The Cy∣prians and Phrygians of old,* 1.450 and since them, the Athenians and Romans did condemn it as an heinous Act, to kill an Oxe that plowed up the Earth, because the Oxe was Mans companion and fellow labourer in tilling of the Ground; it was therefore forbidden by the Laws of Athens,* 1.451 that the Oxe should be offered in Sacrifice. And Sue∣tonius in the life of Domitian testifies, That in the beginning of his Raign, he so far abhorred murther, that in his Fathers absence, remembring that Verse in Virgil,

An imp'ous people wh' on slain bullocks feast.

He forbad by an Edict the killing of Oxen.* 1.452 And Aratus in his Phaenomena assures us, that it was not lawful to eat of an Oxe that plowed the ground, until the Brazen Age of the World began, nor that their Gods in their bloody Sacrifices should be worshipt by them.

V. Nor if the things be of no use in War.

Fourthly, there are some things of so innocent a Nature, that they neither cause a War, nor prolong it; which things, though the War continue, yet common reason should perswade us to spare. Thus do the Rhodians plead with Demetrius, who in mere envy had besieged their City, and threatned to burn it for that exquisite piece of Art, the Picture of Jalysus drawn by Protogenes,* 1.453 as it is recited by Aulus Gellius, whose words sound to this sense, What reason (say they) canst thou give for destroying so famous a Pi∣cture, by firing the house wherein it is? If thou canst conquer us, the whole City, together with that Picture safe and unblemished, will by thine own; but if thou fail in that design, con∣sider what a dishonour it will be to thee, when it shall be said, that although thou couldst not conquer the Rhodians,* 1.454 yet thou hadst made War against Protogenes a dead Painter. Poly∣bius thought it an Act of the highest madness to seek to destroy those things, which being destroyed weakned not the Enemy, nor brought any advantage to those that de∣stroyed them;* 1.455 such as are Churches, Statues, Schools, and Religious Houses. Cicero highly extols Marcellus for the care he took to preserve all the fair Buildings in Syracuse, both publick and private, Quasi ad ea defendenda cum exercitu non expugnanda venisset; As if he had been sent with his Army to defend the City and not to take it. And a little after he gives this reason, Our Ancestors did ever leave unto the Conquered such things as to them were pleasant, but to the Conquerours of no great use or benefit.

VI. Especially things sacred or thereunto be∣longing.

And although this also may be pleaded in the behalf of other publick ornaments, yet a more special reason may be added; for those things that are dedicated to sacred uses, although these also are in some sort publick, and so not exempted from the out∣rages of War; yet if there be no great danger that may justly be feared by them, the very reverence that we owe to those holy places, and to the things thereunto appertaining, should plead strongly for their preservation, especially with those that agree in the wor∣ship of one and the same God, though they do differ in opinion concerning some outward rites and ceremonies. It was observed as a Law among the Grecians in the time of Thucydides, that when they invaded one another as Enemies, they should al∣ways forbear to use violence to holy places. And Livy tells us, that when the Ro∣mans had sackt and destroyed Alba, they spared the Temples of their Gods. And when Capua was taken, the Poet Silius writes thus of the Romans:

Ecce repens tacito percurrit pectora sensu Relligio, & saevas componit numine mentes, Ne flammam taedasque velint, ne templa sub uno In cinerem sedisse rogo.

Livy tells us, that it was objected against Qu. Fulvius the Censor,* 1.456 That by the spoil and ruine of Churches, he had made the people of Rome guilty of Sacriledge, as if the immortal Gods were not in every place the same, but that the Gods of one place delighted in the spoil of the Gods of another. But Marcius Philippus coming to encampe about Dium,* 1.457 under the Temple, gave special command that no violence should be offered to that Holy place. Strabo relates it of one Tectosages, That having (with some others) robbed the Temple at Delphos of some treasure, thought he had sufficiently appeased the Gods by consecra∣ting that Money, with some addition, to the Gods at home (supposing it to be no sa∣criledge, to despoile the Temple at Delphos to adorn his own Temple, both haply being consecrated to one and the same God.) But let us descend to such as were Christians. Agathias tells us, That the Francks spared the Temples in Greece,* 1.458 as being of the same Religion with them: Nay it was usual not only amongst the Heathens (whereof Historians give us many examples, and do therefore call it the common custom of the Grecians) but amongst Christians also, to spare the persons of such as fly for sanctuary to the Temples, even for the reverence they bear unto the places;* 1.459 which St. Augustin highly commends in the Goths, having taken Rome: who (as he there tells us) had so great a regard to the Temples dedicated to the memory of the Apostles and Holy Martyrs; that in that miserable devastation all that fled thither found protection, whether natives or strangers: Hitherto (saith he) might the fury of the Enemy rage without restraint: But here as by a divine power, it was suddenly checkt: Hither do the commiserating Souldiers bring their distressed Captives, left they should be destroyed by their fellow Souldiers that had no remorse: And they, who elsewhere were inexorably bloudy, no sooner approached to these places, where the licence which the right of War gave them was interdicted, but instantly all manner of Cruelty and all desires of revenge wholly vanished. We give such reverence to holy places, saith Appian, That we use no manner of hostility against them amongst our Enemies, though Foreigners. For as Polybius observes,* 1.460 It is the greatest folly and mad∣ness in the world to behave our selves impiously towards God, because we are enraged against our Enemies who are but men: For much better it is, that God should in those places, after any manner be worshipped, than that they should be made tippling-houses. It is written of Agesilaus, That not in Greece only, but amongst the Barbarians,* 1.461 he spared with holy reve∣rence whatsoever was consecrated unto the Gods; as well their Altars and Images, as their Churches, Mirarique se praedicabat eos non sacrilegorum numero haberi, qui supplicibus eorum nocuissent; Admiring how they could be excused from Sacriledge that had violated the pri∣viledges of those places, by oppressing them who fled thither for protection. The very same testimony doth Plutarch give of him.* 1.462 The like he doth also of diverse Roman Gene∣rals, who in their Conquests, as well in Greece as in Macedonia, did not only spare the Temples of their Gods, but honoured them with presents, and enlarged both their immunities and priviledges. Procopius records it of one Cabao a Moor,* 1.463 who (though no Christian) yet commanded, That all honour and reverence should be given to Chri∣stian Temples: The neglect whereof by the Vandals themselves, he hoped that the God of the Christians (who ever he was) would severely revenge on them. And in the Second Book of his Persian Wars he testifieth the same of Cosroes the Persian King, who, though no Christian, yet took special care to preserve the Christians Church at Antioch. Neither durst the Emperour Justinian keep the spoils of the Temple at Je∣rusalem, which Vespasian brought to Rome; but they being found at Rome, were tran∣sported by Gizerich into Africa; as the same Procopius testifies in the Second Book of his Vandal Wars. Nor can I here omit that memorable fact of King Alarick,* 1.464 who having ignorantly received some vessels, which his Souldiers had taken out of a Temple de∣dicated to St. Peter, and being afterwards informed thereof, commanded the same vessels to be restored by the same persons, adding others of a very great value unto them, to expiate the crime.

VII. Yea and things that are Reli∣gious.

What hath been already said of things Sacred, may likewise be said of things that are Religious; even of such as are erected as Monuments for the Dead. For though the Law of Nations do expose these also to the will of the Conquerour, yet ought they for huma∣nities sake to be spared. Our Lawyers do assert, That to be the best and highest Reason which advanceth Religion. There is an excellent saying in Euripides which makes as well for Religious things, as for things Sacred.

Homo quisquis urbes vastat & dis Manibus Sedes sacratas, templaque, haud recte sapit: Nam similis ipsum pestis excidii manet.

Who conquered Cities rashly do erace, And Temples with their Monuments deface, Do not foresee the like may be their case.

Apollonius Tyanaeus doth thus interpret that Fable of the Giants fighting against Heaven, When audacious men presume to violate the Temples and Images of the Gods. It is said of Scipio, That having taken Carthage he inricht all his Souldiers with the spoil, excepting only those who had before invaded the Temple of Apollo; neither durst Caesar himself (as Dio relates) demolish the Trophies of Mithridates, being consecrated to the Gods of War. Cicero speaking of Marcus Marcellus,* 1.465 thus testifies of him, Quae victoria profana fecerat, religione impeditus, non attigit; What the victory had made common and profane, that his Con∣science would not permit him to touch. Adding withal, That there were some Enemies who voluntarily observed the Rights of Religion and of Customs, even in the midst of War. And in another place, he declaims against the War made by Brennus against the Temple of Apollo as wicked and impious. So doth Livy against that act of Pyrrhus in Plundering the Treasury of Proserpine, which he calles Foedum, & in deos superbum facinus; An act of high insolency against the Gods. The same Livy bitterly inveighs against the War which Philip made as being wicked, and as if it had been made against all the Gods: Ʋltra enim jus victoriae in Templa, in Aras, in Sepulchra saeviit; For that he spared neither their Temples, nor their Altars, no nor the S••pulchres of the dead: Whereat Polybius also glancing, adds his own judgment in these words, Wilfully to destroy those things which can be of no use unto us in War, nor doth much incommodate our Enemies, especially Temples, Images and such like orna∣ments, who can deny to be an act of brainsick madness? Neither doth he herein admit of that common excuse of retaliation.

VIII. The advan∣tages that ac∣crue by this moderation.

Although to speak properly it was not our intention in this place to enquire what is now most in use, but to reduce that loose and inordinate licence in making War, to that which is most agreeable to natural equity, or to that which among things lawful is best; yet will vertue her self, being but little valued in our age, plead mine excuse: If seeing her by her self so despised, I endeavour to set a much greater price upon her, by proposing what great profits and advantages may by her be reaped. In the first place therefore this mode∣ration which spares such things as do not protract the War, doth so far weaken the Ene∣my, as it disarms him of one of the most forceable engines he hath to destroy us, which is desperation.* 1.466 Archidamus in Thucydides would needs perswade his Souldiers, That the Enemies Country whereof they were possest, was no other than an hostage or pawn, which the bet∣ter it was stockt with Corn and Cattle, was the richer and so the better: great reason therefore we have to spare it, ne desperatio hostes redderet invictiores; Lest desperation should make them to redouble their valour. The same Counsel did Agesilaus in Plutarch follow, when contrary to the opinion of the Acarnanians, he gave the Achaians a free liberty to sow their Corn; say∣ing, That the more they sowed, the sooner they would harken to Peace. This is the meaning of the Satyrist, when he tells us, That spoliatis arma supersunt; They are compelled to live by force and arms, that have nothing else to live by. This was the usual practice of the Gaules, as Livy notes, who when they had taken a City, would not burn all their houses, that so they might pacifie the minds of their Enemies by giving them some things, when it was in their pow∣er to have destroyed all. Whereunto we may add, That our preserving the Enemies Coun∣try during the War, begets in the Souldiers a great assurance of the victory. For what a man intends, and can make his own, he will not be easily perswaded to destroy. A∣gain, Clemency is in it self apt to soften the resolutions and animosities of Enemies, and to draw them to a submission. Hannibal spares all the fields and territories of the Tarentines, but not (saith Livy) out out of modesty or conscience; but rather that thereby he might the sooner gain them to a voluntary surrender. (For to a Conquerour, vtilis est clementiae fama; Nothing is more advantageous than the fame of being merciful, especially if the Enemy be any ways dif∣fident of his own strength.) Thus did Augustus Caesar abstain from all Plunder and Rapine in Pannonia,* 1.467 Because (as Dio gives the reason) he hoped to conquer them without the least effu∣sion of bloud.* 1.468 The like doth Polybius testifie of Timotheus, That by taking care to spare the Country wherein he marched, He got much love and the good opinion of his Enemies. Thus Plutarch commemorating the same care in Quintius Flaminius when he made war in Greece, adds this as the effect of it, Not long after (saith he) did Quintius reap the fruits of his mo∣deration and clemency; for as soon as he came out of Thessaly, the Cities yielded unto him: And the Grecians that dwelt in Thermopilae did earnestly long for his coming: yea and the Achai∣ans renouncing their Confederacy with King Philip, entered into League with the Romans a∣gainst

him. We read in Frontinus, that a City of the Lingones,* 1.469 having unexpectedly es∣caped a general devastation in a War made by Domitian the Emperour, under the con∣duct of Cerealis against Civilis the Batavian; because they had contrary to their fears lost nothing, being reduced to obedience, supplyed him voluntarily with an Army of seventy thousand Men, well armed. Whereunto also we may add, That from the contrary Counsels have usually arose clean contrary effects: An example whereof Livy gives in Hannibal, who was, as he describes him, exceeding prone to covetousness and cruelty,* 1.470 insomuch that what Cities or Towns he could not keep, he would totally spoil and burn; which Livy there calls wicked counsel, as well in respect of the cause as of the success of it. For he did not only thereby alienate the hearts of those who were the immediate Sufferers, but he deterred others; and so enforced them the more to strengthen themselves against him; because, Ad plures exemplum quam calamitas pertinebat, More were frighted by the example than felt the calamity it self. And therefore what some Divines have observed and taught, I must needs assent unto, That it is the Duty of such Commanders as would be thought Christians, (as far as in them lies) to intercede for and hinder the sacking and pillaging of Towns and Cities, especially of such things in them as add but little to the Conquest, being taken away; and yet whereby many innocent persons are or may be damnified: so that such acts as these Christian clemen∣cy doth always almost, and Justice it self also doth for the most part abhor. Surely there is a greater tye and obligation among Christians, than there ever was anciently amongst the Grecians; yet we find a Decree made by the Amphictiones, Ne qua Ʋrbs Graeca Bello exscinderetur, That none of the Cities of Greece should ever be burnt down by War. And it stands yet recorded by some ancient Writers, That Alexander the Great never repented any thing more, than he did the destroying of Thebes.

CHAP. XIII. Moderation concerning things taken in War.

• I. The Goods even of our Enemies Subjects being taken in War are to be detained only after the manner of some just Debt.
• II. But not for the punishment of another mans crime.
• III. By Debts here, all the charges and da∣mages occasioned by a just War, are also included.
• VI. Not to exact the utmost of our Right, is an Argument of humanity.

I. Subjects Goods taken in War, detained in the manner of a just Debt.

THE taking of our Enemies Goods in a Just War is neither altogether blameless, nor is it exempted from all Obligations of restitution. For if we respect that which is done rightly, we can neither take nor detain more from our Enemies than what is justly due from him, unless it be such things as (beyond what is due) we are en∣forced to detain for our necessary safety, which are likewise to be restored (the danger be∣ing past) either in kind, or to their full value, (as we have already declared.* 1.471) For what is lawful for us to do to the Goods of such as are at peace with us, is much more lawful to the Goods of those that are our Enemies. But in the times of Peace, what is necessary for our preservation, may be taken so as it be with a purpose to restore it, as is already proved; this necessity creating a kind of Right to take that wherein we have otherwise no propriety at all.* 1.472 But whereas Debts may arise either by reason of some inequality that there is in things, or by reason of some punishment due for some acts of injustice done un∣to us, we may in either of those cases possess our selves, if we can, of the Goods of our E∣nemies; but yet with this difference, namely, In the former of these cases: The Goods, not of the principal Debter only, but those of his Subjects also, by the Law of Nations (as it were by way of Suretiship) stand obliged. Which Right of Nations we conceive to be of another kind than that which consists either in a bare impunity, or by virtue of ex∣ternal Judgments. For as by our own private consent or agreement, he that deals with us for what is ours, seeks to have not only an external or judicial Right, but an internal and equitable also, in that which he deals for; so is it by a kind of common consent or agree∣ment, wherein is virtually contained every particular mans. In which sense the Law is called the common Pact or Agreement of the whole City. Now it is so much the more credi∣ble that it pleased the Nations that such a Right should be thus acquired, because this Law of Nations was at first introduced, not only for the prevention of greater mischiefs, but also as a way whereby every State and Nation might recover their own.

II. But not for the punishment of anothers crime.

But if the Debt wherein a Foreign Prince stands obliged unto us be penal only, I do not perceive that by the consent of Nations such a Right is given to detain his Subjects Goods barely for his neglect. For such a tye upon another mans Goods would be odious, and therefore should not extend it self farther than the person offending. Neither is there the like profit arising from these latter Debts, as from the former; for the former Debts re∣quire some reparation for the loss of Goods, but so do not these latter: and therefore the prosecution of them may without damage be omitted. Neither doth that which we have already said concerning the Attick Law,* 1.473 contradict this. For there men stood obliged, not for that properly, because the City might have been punished; but only to compel the City to do what it ought to do, that is, to inflict punishments upon Offenders; the neglect whereof is referred to the former, and not unto these latter sort of Debts. For to owe a Duty in punishing Offenders is one thing, and to lye obnoxious to punishment for the non-performance of that Duty is another. The omission of that doth usually induce this, yet so that the former is the cause and the latter the effect. And therefore the Goods of an Enemies Subjects cannot lawfully be possest by way of punishment. For this were to punish the innocent for the nocent; but such things only are liable to this Debt, that belong to the persons who are Delinquents, amongst whom are the Magistrates themselves, whose Duty it was to punish, but did it not.

III. By Debt is un∣derstood the subsequent charges also.

Besides, the things belonging to our Enemies Subjects may be taken and kept, not only to reimburse our selves of our original Debt, which was the ground of the War; but to repair our losses and expences in the War, according to what hath been already said in the beginning of this Book. And thus must we u••derstand that which some Divines have written, namely, That things taken in War are not to be equalled with the principal Debt, that is, un∣til satisfaction be made, according to sound judgment, for the damage done in the War it self. Thus the Romans, in their Treaty with Antiochus, adjudged it equitable, That the King should bear the charges of the War, through whose default it was that the War began. So Justine, Impensas Belli Lege Justa suscepturus, qui Belli Author est; He that is the Author of the War, ought by the Law of Arms to bear the charges of it. The like we find in Thucydides, where the Samians are condemned to defray the charges of the War. Now whatsoever is justly imposed on the vanquished, may by the Conquerour be exacted by force of Armes.

IV. For humanities sake we ought not to exact our utmost due.

Moreover, this also must be remembred, which I have elsewhere delivered, That the Rules of Charity are of larger extent than those of Justice. That man hath but little of mercy in him, who, being opulent, useth the extremest rigour of the Law to inforce from his poor Creditor the utmost Farthing of what the Law permits, especially if that Debt were contracted by his kindness to his friend only, in being Surety for him. Very lamen∣table were the condition of such a Surety, saith Quintilian the Father. But yet such a Credi∣tor doth nothing herein but what he may do by Right, strictly taken; whereunto he adds, Salvo pudore, ad Sponsorem non aliter Creditorem venire, quàm si recipere à Debitore non possit; The Creditor cannot for shame sue the Surety, unless the Principal be insolvent. Wherefore it behoves us for humanities sake, to spare their things, who have no ways offended, either as Authors or as Promoters of the War; nor are any other ways concerned than as by way of Suretiship, and who can worse endure the loss of them than we can. But especially if it do sufficiently appear unto us, That they shall receive no reparation for what we shall so take away from that Prince or City whereof they area part. King Ptolomy having over∣come Demetrius the Son of Antigonus, and taken his Camp, sent back his Money and his Apparel,* 1.474 with this Message, That the Contest between them was for honour and Empire only, and not for private gain. Thus doth Cyrus bespeak his Souldiers when they had taken Baby∣lon and plundered it, What ye have got from your Enemies, ye may without any injustice pos∣sess; but if you will leave them some things, it will testifie your humanity. This also is to be no∣ted, That since this Right of seizing the Goods of innocent Subjects for their Princes Debt, is but subsidiary, or by way of Suretiship, in case there be any hopes of recove∣ring our Debts from the original Debtors, or from them who by not doing us Right, have voluntarily made themselves Debtors, then to fall upon them who are no ways accessary to the injury done us, though it may stand with the Rules of Justice strictly taken, yet it can∣not stand with the Rules of humanity.* 1.475 The Ancient Romans having conquered their enemies, never made sale of all their Lands, but left them some part thereof to till for their sustenance. So did the Vandals in Africa, and the Goths in Italy, as Procopius informs us. Histories do plentifully supply us with such like examples of humanity; as when the Romans having overcome their Enemies, granted them their Fields back, upon Condition, That they should be from thenceforth held of the City they had conquered, or when some small portion of those Lands were for honour's sake left unto the ancient Occupants. Thus Romulus punish∣ed the Vejentes with the loss of a part of their Territories. So Alexander restored the

Lands he had conquered to the Ʋxii, under a certain Tribute. The like we read in several Histories of Cities taken, but restored, and not destroyed; and of not the persons only of Husbandmen, but their Goods laudably restored, at least under a certain Tribute: as also under the like Tribute, immunity from War we may read of usually granted to Merchan∣dises.

CHAP. XIV. Moderation concerning Captives.

• I. How far forth it is lawful to make men Slaves by internal Justice.
• II. What may justly be done to them by right Reason, Equity or Conscience.
• III. That it is not lawful to kill an Innocent;
• IV. Nor to punish him unmercifully;
• V. Nor to impose upon him excessive labour.
• VI. The Stock of a Slave, how far his own, and how far his Lords.
• VII. Whether Captives may fly from their Lords.
• VIII. Whether the Children of Slaves are bound to their Masters, and how far forth.
• IX. What may be done where the service of Ca∣ptives is not in use.

I. How far forth men may be enslaved by in∣ternal Justice.

IN such places where this Right is yet in force, of taking men Prisoners, and making them Slaves, if we respect internal Justice, it is to be restrained in the same manner as the Right of taking things is; that is to say, It is so far lawful, until we are satisfied our original Debt, together with the subsequent Charges thereof, unless the persons so ta∣ken shall be found guilty of such particular crimes as in common equity deserve to be pu∣nished with the loss of liberty. Hitherto therefore, but no farther, hath he that wageth a just War a Right in the Captives taken from his Enemy, and a power to transfer that Right firmly unto others. But here also the same equity and humanity should perswade us to put the like difference as before we observed, when we discoursed concerning the killing of our enemies. Demosthenes, in that Oration which he wrote concerning Licurgus's Chil∣dren, extols the clemency of Philip of Macedon, for that he made not all that were found amongst his Enemies, Slaves; but weighing, as in a just Ballance, all circumstances, he pro∣ceeded rather as a Judge than as a Conquerour. Thus likewise did Alexander his Son,* 1.476 who having taken Thebes, set at liberty both their Priests, and such of their Citizens as had not assented to the Decree that the City past against him.

II. What may be justly done un∣to Captives in equity.

But here it is in the first place to be observed, That this Right of making men Slaves, which ariseth as by Suretiship for that City, whereof they were Members, doth not ex∣tend it self so far as that which ariseth directly from personal delinquency, and are there∣fore made Slaves by way of just punishment. And therefore a resolute Spartan being commanded to do some slavish Office, pleaded, That he was indeed a Captive, but no Slave.* 1.477 Philo observes, That sometimes Parents are taken and made Slaves for their Childrens faults, and sometimes Children for their Parents crimes; as when they are taken either by Pirates or in the Wars, whom notwithstanding the Law of Nature, much more vigorous than any humane Law, sets free. And indeed, if we look directly into that general Right which a just War gives over Captives, it is much like unto that which a Lord hath over such Servants, as being reduced to poverty have sold themselves unto him; only herein lyes the difference, That the condition of those taken in War is the more to be pitied, because this calamity befel them, not through any crime which was properly their own; but through the default of their Governours. To be made a Slave by the Right of War, is (as Isocrates accounts it) a bitter thing. For this kind of bondage is a perpetual Obligation to all kinds of labour and hardship, for a perpetual supply of Food and Rayment. Chrysippus's definition doth very well agree with such kind of Slaves, who saith, That a Slave is a perpetual Hireling. And thus doth the Mosaick Law esteem of him whom poverty hath compelled to sell his liberty, as we read Levit. 25.18, 40, 53. And his Redemption shall be paid by his work, as the Fruits of Lands sold or mortgaged, shall redeem it to them that sold it, Lev. 25.50. There is therefore a main difference between that which by the Law of Nations may be done unto a Slave without punishment, and that which natural reason and equity doth allow to be done unto him. So saith Seneca, in the place before cited,* 1.478 Cum in servum omnia liceant, est aliquid quod in hominem licere, commune jus animantium vetat; Although whatsoever is done to a Slave be lawful, yet are there some things which the very Law of Nature prohibits to be done unto him, as he is a man. For whosoever is born a man, though he be a Slave,* 1.479 yet doth he not thereby cease to be a man. So Seneca, Are they Servants? yet are they men;* 1.480 Are they Servants? yea, and our Companions? Are they Servants? yea, and our humble Friends;

Are thy Servants? yea, and our fellow Servants, if we do but consider what power fortune hath over either of us. And a little after in the same Epistle, Consider that he whom thou callest thy Servant, is born of the same nature, equally to enjoy the same common air, e∣qually to breathe, live and dye as thy self; and if it had so pleased fortune, might as well have seen thee a Slave, as he now sees thee a Freeman. And what we may read in Macrobius, is but the same advice that St. Paul commends unto us,* 1.481 Masters do unto your Servants that which is just and honest, as knowing that ye also have a Master in Heaven. And in ano∣ther place he admonisheth us, not to terrifie them with menaces and threatnings; which he presseth upon us by the same argument, because we also have a Master in Heaven, who regards not such distinction of qualities.* 1.482 In the constitutions of Clemens Romanus we have this advice, Govern not thy man nor thy maid-servant with too much austerity: The reason where∣of is given by Barnabas in his Epistle, Lest thereby thou testifie against thy self, that thou fearest not him who is the supreme Lord both of them and thee. Clemens Alexandrinus also exhorts us to use our Servants as our second selves, Seeing that they are men as well as we, imitating therein that wise Hebrew, If thou hast a Servant use him as a Brother, for he is such a one as thy self.

III. That it is not lawful to kill an innocent.

Let us now admit that the Lord hath over his Slaves the power of life and death to uphold his Domestick Discipline; but then, let that jurisdiction be used with that re∣ligious moderation, as the Magistrate useth in the publick. This was the advice of Se∣neca,* 1.483 In thy Bondman thou art to consider, not what thou maist inflict on him without the re∣straint of the Law, but what in equity and good conscience thou oughtest to do unto him, which requires sometimes to favour even thy Captive and thy Slave, whom thou hast bought with thy money.* 1.484 And in another place comparing Subjects with Servants, he saith, Though they have different titles, yet is the licence over both, the same; which certainly holds true in this particular, in taking away the life of either, Majores nostri domum nostram pusillam Rempublicam esse voluerunt; Our Ancestors, saith Seneca, did reckon every family as a little Commonwealth.* 1.485 So also Pliny, Every mans house as to Servants is as a City. Insomuch that Cato the Censor, as Plutarch informs us, would not punish any of his Servants for never so great a fault, Nisi postquam damnatus esset etiam conservorum judicio; Ʋntil he had been found guilty by his fellow Servants.* 1.486 Whereunto we may add that of Job, If I did despise the cause of my man-servant or of my maid-servant, when they contended with me, what then shall I do when God riseth up and when he visiteth, what shall I answer him? Did not he that made him make me, and did not one fashion us both?

IV. Nor unmerci∣fully to punish him.

Yea, and to lesser punishments, as stripes and blows, &c. much of equity and fa∣vour is to be shewed to Captives and Bondmen, Thou shalt not oppress him or rule over him with rigour, saith the Divine Law concerning the Hebrew Servant; which since the coming of our Saviour,* 1.487 by reason of that affinity that there is between all mankind, ought to extend to all Servants: upon which Law Philo thus glosseth, Servants in respect of the goods of fortune are our inferiours, but in respect of our common nature our equals. But the rule of Divine justice, saith he, is not that which is agreeable to fortune but to nature. Masters therefore are not to behave themselves towards their Servants insolently, nor to abuse that power which the Law permits them, thereby to grow cruel. For these are signs not of a meek and calm, but rather of a froward and intemperate mind, domineering over their Ser∣vants in a tyrannical way.* 1.488 Priscus comparing the Romans with other barbarous Nations, tells us, That they treated Captives with much more mildness than others did, performing un∣to them rather the offices of Fathers and Tutors than of Conquerours: For as they studiously withdrew them from those things, which in respect of their own customes were unlawful; so if they did offend, they only corrected them as sons; but to kill them (as the Scythians did) they esteemed utterly unlawful. There are divers kinds of liberty indulged unto them by their Lords, and that not only whilst they lived, but at their deaths: for whatsoever dying, they ordain or ap∣point to be done, with that which is their own, hath the power and force of a Law. Philo in his second Book of Special Laws, as also St. Cyprian in his Epistle to Demetrian, high∣ly blames this severity towards Servants, If thou art not readily obeyed in all things (say they) if thy will be not executed as a Law, thou growest presently imperious and cruel; thou tormentest thy slave with whips and scourges, thou afflictest him with hunger, thirst, nakedness, and oft-times woundest him and throwest him into Prison; and yet, wretched man that thou art, whilst thou thus abusest thy power towards thy captivated slave, thou forgettest thy duty to, and thy fear of the Lord thy God. Now what can be more foolish and absurd, saith Se∣neca,* 1.489 than to make the condition of a Servant worse than that of a Beast: He that would skil∣fully manage an Horse, will not provoke and exasperate him with many stripes; for unless he be gently handled at the first, he grows fearful and headstrong. And again, What can be more unseemly (saith the same Seneca) than to exercise that cruelty upon a man though our Slave, which we would be ashamed to exercise over Doggs or Oxen. To restrain which brutish cruelty, it was wisely provided by the Hebrew Law, That if a Master did strike out the eye or tooth of his Servant injuriously, he was for that eye or tooths sake, to let him go

free, Exod. 21.26, 27. Whereby it falls out, saith Philo, that the Master undergoes for his cruelty a double punishment in the loss of his Servants, both labour and ransome: whereunto we may add a third more grievous than both the former, namely, That thereby he is compelled by the Law against his will to do good in a matter of the greatest concernment to a person whom he hates, and whom he wisheth it were in his power everlastingly to vex and torment; whereas the Servant for the wrong he hath suffered, receives this double comfort, first that he enjoys what of all things he most desires, to wit, his liberty, and then that he is for ever freed from the commands of so cruel and severe a Master.

V. Nor to impose too hard la∣bour upon him.

Neither are we to impose upon them too hard labour, without regard had to their strength and health. To this end with some others was the Sabbath by the Mosaical Law instituted, namely, That Servants as well as Beasts might enjoy some refreshment from their labours. Do ye not observe, saith Seneca* 1.490, how careful our fore-fathers were, as well to prevent all occasions of envy to Masters, as of reproach to Servants, when they stiled the Lord,* 1.491 Pater Familias, The Father of the Family; And his Servants, Familiares, His familiar Friends. So in another place he bitterly inveighs against the too strict exaction of Servants labours; where speaking of such, he saith,* 1.492 Nos non tanquam hominibus sed tanquam jumen∣tis abutimur; Whom we abuse not as Men but as Beasts. And Dion Prusaeensis describing a good King, saith, That he is so far from usurping the title of Lord over his Subjects, be∣ing Freemen, That he will hardly admit of it over his Servants. Ʋlysses in Homer professeth,* 1.493 That those of his Servants whom he found faithful were as dear unto him as his own Son Telemachus, Gratius est nomen pictatis, quam potestatis;* 1.494 Much more graceful is that name which imports Piety than Power; and better it is to be called the Father than the Lord of a Family. Neither is there any other reason, saith Lactantius,* 1.495 why we call each other Bre∣thren, but because we believe that we are all by nature equal. For since we esteem all humane things, not from or by their Bodies but their Spirits, though the condition of the bodies be di∣verse, yet are they not unto us Servants; but we both esteem of them, and call them in spirit Brethren, but in Religion our fellow-servants.* 1.496 Thus also S^t Augustin concerning the customs of the Catholick Church, Thou (i. e. the Church) teachest Servants to adhere to their Ma∣sters, not as prest thereunto by necessity, but out of delight they should take in doing their duty. Thou teachest Masters in imitation of God, who is the supreme Lord and Master of all, to be gentle and merciful to their Servants, and to be always more propense to exhort and admonish them than by force to compel them to do their duty: And in case they transgress, rather to correct them as Sons, than to rage and tyranize over them as Slaves. The like advice doth S^t Hierome, or Paulinus, give unto Celantia concerning Servants, So order and govern thine House, as though thou wert rather a Mother than a Master in it: And invite thy Servants to reverence thee, not by thy sharpness, but by thy meekness and benignity.* 1.497 And S^t Aug••stin observed, That in antient times good Parents governed their Families in this order: As to temporal things the condition of their Children was much better than that of their Servants; but as to Religious duties they made no distinction, but Servants as well as Children were with the same affection instructed in the true worship of God: From whence every Master was called Pa∣ter Familias, which in time grew so common, That even they that lorded it over their Servants with the greatest severity, would not willingly be called Lords. And for the very same rea∣son were Servants called Children, as Servius notes upon that of Virgil, Claudite jam ri∣vos pueri, &c. Tacitus commends the Germans, That they made the same account of their Servants as they did of their Farmers or Tenants. And Theano in an Epistle of his, prescribes a just measure for Servants, namely, That they should neither be tired with over much labour, nor weakned through want or poverty.

VI. The Stock of the Servants, how far the Lords, and how far his own.

To Servants for their Labour we owe Aliment; So saith that wise Son of Syrach, Bread, correction and work are due to a Servant. Of the same opinion was Aristotle* 1.498, The reward of a Servants work is Aliment. Neither are they much out who command us to use our Ser∣vants as we do Mercenaries, Operam exigendo, justa praebendo; By exacting their work, and withal paying what is their due. So provide for thy family, saith Cato, that they be not pined through hunger, nor starved through cold. There is somewhat, saith Seneca† 1.499, that a Master owes unto his Servant, that is, Food and Rayment. And in another place* 1.500, Familia vestia∣rium petit victumque; A Family requires Food and Rayment. For this it is that the Ro∣man Captives plead unto Bessus† 1.501, Give us, say they, at the least Food, as we are thy Slaves, not as much as sufficeth, though our necessities require it, yet so much as may keep us alive. S^t Chrysostome gives this advice to the Master of a Family* 1.502, If thy Servant perform his dayly labour for thee, do thou feed him; and besides his food, provide that he be well clad and well shod: and this is some kind of service that we owe unto our Servants; for unless thou do this office for him, neither will he do his duty to thee, but will remain free, Neque ulla eum lex constringit si non alatur, operas praestare; For there is no law to enforce him to perform his duty, if thou neglect to perform thine. The proportion allowed to every Captive a∣mongst the Romans, was four Roman Bushels of Corn for every Month,* 1.503 (every such Bu∣shel containing of our measure about three Pints and ten Ounces above our Peck) as Do∣natus

upon Terence informs us. Thus also Martianus the Lawyer, Some things there are which of necessity the Lord must do for his Servant, namely, to provide for him meat and cloathing.* 1.504 The Sicilians stand condemned by all Historians for their cruelty in famishing the Athenian Captives. So also doth Isaacus Angelus, for the like cruelty to the Sicilian Captives, as Nicetas records: who also recites an Epistle sent by the King of Sicily to the Grecian Emperour concerning this matter. Besides, Seneca in the place be∣fore quoted proves, That Servants are in some sort free, and in some things able to ob∣lige their Masters by some courtesies; as when they do more than is imposed on them, or when they do some profitable acts, being not commanded, but voluntarily and freely and beyond their duty; wherein, though servants, they perform the office of Friends. As also when a Servant or Slave shall out of his dimensum or allowance pinch his own carkass to save somewhat every day, or by improving his spare time gain something to himself: This is in a manner his peculium, which is (as Theophilus defines it) his natural Patrimony; as if thou shouldst call the Marriage of a Bond-man with a Bond-woman a natural Mar∣riage. Which stock Ʋlpian calls, Pusillum Patrimonium; A small Patrimony. Such was that which Ʋlysses proposeth to Eumaeus and Philaetus.

Vestrum utrique thori socias dabo, largiar & rem Vicinasque domos nostrae.

Wives for you both, and Goods will I provide, And Houses where, near us, you may reside.

Thus also Varro speaking of Servants saith, That by treating them liberally, as by enlarging their proportion in dyet and cloathing, by remitting somewhat of their hard labour, or by granting them some little stock of their own to be kept with those of their Masters, they may be made more se∣dulous, careful and industrious than they would be. Neither will it be much to the pur∣pose to say,* 1.505 That such a little stock may at the will of the Lord be either taken away or diminished at pleasure: For in case he doth so without just cause, he deals very un∣righteously with them. But a just cause there may be, not only when it is done by way of punishment, but when it is done to supply the necessity of his Lord; for the Servants profits are more subject to the necessities of his Lord, than the goods of Citizens to the Ci∣ty they inhabit.* 1.506 Very pertinent hereunto is that of Seneca, It will not follow that a Ser∣vant hath nothing, because his Lord may chuse whether he shall have any thing. And again in the same place, Who can doubt but that the Servant, together with his stock, is the Lords; yet may the Servant present his Lord with a gift. And hence it is that the Lord cannot re-demand that debt which being due unto his Servant in the time of his servitude, he pays him after his manumission. For as Trophoninus testifies, Debiti, vel non debiti ratio, in condidictione naturaliter intelligitur; In personal actions, the consideration of what is due or not due is to be understood naturally. But possible it is, That the Lord may be indebted to his Slave naturally: As therefore Clients may confer something to the use of Patrons, and Subjects to the use of Kings; so we may read of some Servants who have out of their own small stock contributed something to the use of their Lords:* 1.507 As in case he be to raise a Portion for the marrying of his Daughter, or to redeem a Son out of Captivity, or upon such like accidents. Pliny indulged this favour to his Slaves, That they might make their Wills, and give or bequeath what they had got unto any, so they were of his own Family. Among some Nations we read, That a fuller right of acquiring things was granted unto them according to the several degrees of servitude; as we have else∣where described.* 1.508 And many nations have corrected their Laws, reducing their external right of Lords over their Servants unto that internal justice, which we have heretofore expounded: For even among the Grecians it was lawful for Slaves, being too rigorously treated, to demand, That they might be sold. And even at Rome they might ad Statuas confugere; Fly to the Statues, or implore the assistance of the Magistrates in cases of Famine, Cruelty, or any such unsufferable injuries done them. And this also is now allowed, though not in the strictness of right, yet as proceeding from the goodness and humanity, and sometimes such as may be in equity due; as, That after long and very hard service, they have rewarded that service with liberty. So saith Ʋlpian, After that Captivity by the Law of Nations came to be in force, manumission became a courtesie. An example whereof Terence gives us:

Thou wast my Slave, till I enfranchiz'd thee, Because thou didst thy duty cheerfully.

In some places it is customary to set a Slave at liberty if he can procure eight times as much as he was bought for.* 1.509 Salvianus observes, that in his time it was of frequent use,

That Servants, though not of the best, yet at least not of the worst kinds of servitude, were rewarded with liberty. And as he adds, Were permitted to carry away with them whatsoever they had got in the time of their service. Whereof we have many examples yet extant in our Martyrologies. And here I cannot but commend the generosity of the Hebrew Law, which commanded, That the Servant having served out his time prefixt,* 1.510 should be altogether free, and that he should not go away empty handed: That is, as their customs expound it, That his Gifts should not be less worth than thirty Sicles, (which in our Mo∣ney amounts to about three pounds ten shillings.) Against the contempt of this Law, the Prophets do bitterly complain. The like doth Plutarch of Cato Major, for selling his Cap∣tives, who had faithfully served him until they were almost worn out with Age, forgetting the common condition of mankind.

VII. Whether Ca∣ptives may fly.

But here falls in another Question, namely, Whether a Captive taken in a just War may lawfully make his escape? I do not speak of him that for some particular fault of his own had deserved to be deprived of his liberty; but of him who in the publick discharge of his duty falls into this calamity: Whereunto the best Answer is, That he ought not; because as I have said, by the general content of all Nations, upon the account of the Ci∣ty he owes his labour. Which notwithstanding is so to be understood, unless to avoid some intollerable cruelty he be enforced so to do.

VIII. Whether they that are born of Slaves are o∣bliged to the Lord, and how far.

We have elsewhere started another Question, Whether or no, and how far forth, the Children that are born of such Captives are by an internal Right bound to him whose Bond-men the Parents are? Which Question in regard of the persons so taken in War, cannot be well omitted. For if their Parents did for their own crimes deserve to be put to death; Children that were expected to be born of them are bound to serve for giving them their lives, which otherwise they had never had. For otherwise also even for want of Food and Rayment their Parents had power to have sold them for Slaves, as we have elsewhere shewed. Such a Right it was that God himself gave unto the Hebrews,* 1.511 over the Children of the Cannanites. So for the publick Debts of a City, Children already born,* 1.512 as being a part of that City, may stand no less obliged than their Parents. But for those that are unborn, this reason sufficeth not, but some others are requisite: As the express consent of Parents, together with the necessity of nourishing them, and that even for ever; or for af∣fording them aliment, and that so long only until their labour shall fully satisfie the charge of their maintenance. If any Right beyond this be given to a Lord over such Children, it proceeds from the too great indulgence of the Civil Law to the Lords themselves.

IX. What may be done where Bond-slavery is not in use.

But in such places where this Right of making Men Slaves is not in use, there the best way is to exchange Prisoners: And next to this is to release them paying their ransoms, which likewise should not be over great but moderate; Neither can any man set down a certain rate; but common humanity instructs us that it should not be so excessive as that the Prisoner being released should thereby want necessaries: which are allowed by the Civil Law, even unto such as through their own peculiar fact are fallen into debt. In other places the ransome of Prisoners is prefixt, either by mutual covenants, or by the customs of the Countries. Amongst the Graecians of old, the ransome of a common Souldier was Mina, a Pound, that is of our Coin about three pounds two shillings and six pence. We now a days require for every Souldier a Months pay. In the War be∣tween France and Spain in Italy, the ransome of every Horse-man was the fourth part of a Years pay, unless he were a Captain or some other eminent Commander, or that he was taken in a just Fight, or at the storming of a Town, as Mariana testifies.* 1.513 Plutarch re∣cords it of the Corinthians and the Megarenses, [Quest.] * 1.514 That the War between them was prosecuted mildly, and as it became Neighbours and Kinsmen. If any man were taken Prisoner, he that took him entertained him as his guest, and taking his word for his ransom dismist him friendly: whence arose the name 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, for one that by the courteous usage of his Ene∣my taken in the War, makes him his friend. But much more magnanimous was that of Pyrrhus, so highly extolled by Cicero:

No wealth I ask, nor ransome will I take, 'Tis Steel, not Gold that must the Victor make: Yet, whoso after Fight shall chance to live, To him his liberty I'll freely give.

Pyrrhus thought no doubt that his cause was good; but yet he was content to restore them to liberty, whom some probable reason had induced to fight against him. The like fact of Cyrus, Xenophon highly commends: As Polybius doth that of King Philip:* 1.515 And Curtius that of Alexander: Plutarch also records the same of King Ptolomy,* 1.516 and of Deme∣trius,

that they strove whether of them should excel, not so much in Arms, as in cle∣mency and benignity towards the vanquished.* 1.517 And Dromichaetes King of the Getes, ha∣ving taken Lysimachus Prisoner in War, entertained him friendly as his Guest; and un∣derstanding by the King how poorly, and yet how obligingly the Getick Nations lived, he chose ever after rather to make them his Friends than his Enemies.

CHAP. XV. Moderation in the acquiring of Empire.

• I. How far internal justice permits the ac∣quiring of Empire.
• II. That by this Right to spare the Conquered is laudable:
• III. Either hy mixing the Conquered amongst the Conquerours:
• IV. Or by leaving them under their Govern∣ment, who before had it.
• V. Yet sometimes placing Garrisons amongst them.
• VI. Or by imposing on them tributes and such like charges.
• VII. The benefit that ariseth from such mo∣deration.
• VIII. Examples, and of the change of Govern∣ment over such as are conquered.
• IX. The Empire though gained, yet some part thereof ought to be left to the vanquish∣ed:
• X. Or at least some kind of liberty:
• XI. Especially in matters that concern Reli∣gion.
• XII. At least the vanquished are to be trea∣ted with much clemency: and why.

I. How far Em∣pire may be gained by in∣ternal justice.

WHAT in equity is requisite, or in humanity commendable, being done to single persons, is so much more being done to a Nation or any parts of it; by how much the good or evil that is done to a multitude, is more notorious than the same done to particular men. Surely by a just War, as other things, so also the Right of soveraignty over the people, and the very Right that the people have in the Go∣vernment may be lawfully acquired; that is to say, so far as the greatness either of the punishment due to their crime, or of some other debt doth warrant it. Where∣unto we may add so far as is necessary to secure the Conquerour from some great and im∣minent danger that otherwise may befall him. But this Cause is for the most part mixed with others, which notwithstanding as well in making of peace, as in prosecuting the Vi∣ctory is principally aimed at. For in the other cases that the Conquerour remits the pu∣nishment or debt, it is from his mercy. But that security which in publick dangers exceeds moderation is cruelty. Thus doth Isocrates advise Philip, It will suffice thee so far to subdue the Barbarians, that thou mayest secure the Peace of thine own Country.

II. To abstain from it, com∣mendable.

That which Salust records of the Ancient Romans is worthy of our imitation, name∣ly, that they were so Religious, That they they took nothing away from the conquered, but the licence they took to do them wrong. And in another place he tells us, That wise men make War for Peace sake, and sustain labour in hopes of rest; Sapientes pacis causa Bellum gerunt,* 1.518 & laborem spe otii sustentant. Not much discrepant is that of Aristotle, The end of War is Peace, as the End of Motion is rest. To the same purpose is that notable saying of Cicero, Bellum ita suscipiatur, ut nihil aliud nisi Pax quaesita videatur; War should be so made, as if nothing else were thereby intended but Peace. And in another place, War should be undertaken for this cause only, that we may live in Peace and not be injured. Nor is this much different from what our Christian Divines teach us, The end, say they, of War is to remove those things that disturb Peace. Before Ninus his Raign, Kings were studious to preserve the bounds of their own Empires, but not to enlarge them. Thus Alexander wrote to Artaxerxes the Persian, Manendum cuique intra fines suos nihil novan∣do; Every King ought to confine himself within his own Dominions, and not encroach upon anothers; neither should any man, out of an uncertain hope invade the right of another, but rest contented with his own. All Kingdoms were at first limited with their own bounds, neither were Kings so Ambitious of Empire to themselves, as of glory to their Peo∣ple; and if they did make War it was not for Dominion, but for the honour of the Conquest. Now unto this Ancient Custome it is, that St. Aug. laboured as much as in him lay to reduce us,* 1.519 Let Princes (saith he) consider, that it belongs not to good Kings to take pride in the enlargeing their Dominions; for as he there adds, Major est foelicitas vicinum habere concordem, quam malum subjugare bellantem; It is greater happiness to have a good Neighbour that is peaceable,* 1.520 than to subdue a bad one that is troublesome. Upon which account it was that St. Cyril commends the Hebrew Kings who always contented them∣selves

with their own bounds, without encroaching on their Neighbours; which was the very sin for which the Prophet Amos did so severely reprove the Ammonites.

III. Which may be done either by intermixing the Conque∣rors with the Conquered;

Nearest unto this original draught of innocence, comes that prudent moderation used by the old Romans: What, saith Seneca* 1.521, had our Empire been, had not a wholesome pro∣vidence taught us to intermix the Conquered with the Conquerours? Our great founder Ro∣mulus, as Claudius in Tacitus tells us† 1.522, did so prevail by his wisdom, that many people, whom the rising Sun saw his Enemies, the setting Sun saw his Subjects and Citizens. Neither was there any thing that did more ruine the Lacedemonians and the Athenians than this, That they always drove away the vanquished as Strangers. Livy informs us that the Commonwealth of Rome was much augmented by the reception of the Conquered into their City, whereof Histories afford us plenty of examples: As of the Sabines, the Al∣banes, the Latines, and so of the rest of the Italian Nation; till at length Caesar first led the Gaules in triumph, and afterwards admitted them to be of his Court and Coun∣cil. Cerialis in Tacitus thus bespeaks the Gauls, Ye your selves are usually admitted to command our Legions; Ye are they that govern not this only, but others of our Provinces, there are no places of trust from which ye are excluded; wherefore (as he there infers) ye ought in all reason to endeavour all you can to preserve that life and Peace; which ye, though vanquished, do equally enjoy with us the Victors. Nay, which is yet more admirable by the decree of the Emperour Antoninus, all that lived within the Circle of the Roman Empire were made Citizens of Rome, which are the very words of Ʋlpian: whereupon Rome was then accounted, as Modestinus affirms, Communis Patria; The common City, or every mans Country. Whereof Claudius thus,

Hujus pacificis debemus moribus omnes, Quod cuncti gens una sumus.

To th' honour of this Prince it may be said, That of the World he but one Nation made.

IV. Or by leaving the Govern∣ment to the vanquished.

Another kind of moderation used in Victory, is when the Government is left in the same hands, either of King or People who hold it before the Conquest. Thus Hercu∣les bespeaks King Priamus,

Hostis parvi victus lacrymis,* 1.523 Suscipe dixit, rector habenas, Patrioque sede celsus solio: Sed sceptra fide meliore tene.

By a weak Enemies tears ore'tane, Take, saith he, thy Crown again, Ascend thy Fathers Throne on high: But henceforth rule more moderately.

So also the same Hercules, having conquered Neleus, gave his Kingdom to Nestor his Son. Thus the Persian Kings were wont to leave their Kingdoms to the Kings whom they had conquered, contenting themselves with the bare Victory. Thus did Cyrus to Armenius, Alexander to Porus.* 1.524 And this is it that Seneca highly commends in a Conquerour, Nihil ex rege victo praeter gloriam sumere; To take nothing from the Con∣quered besides the honour of the Conquest. This is triumph over Victory it self; and to de∣clare that there was nothing to be found among the Conquered worthy of the Conquerours ac∣ceptance, but the Conquest it self. Thus Pompey having overcome Tigranes, left him a part of his Kingdom to govern, as Eutropius informs us. And herein is Antigonus ex∣told by Polybius, That having brought Sparta under his absolute power,* 1.525 he gave the Citizens the free use of both their Ancient Laws and Liberties; for which Act his praises were highly celebrated throughout all Greece. Thus did the Romans give unto the Cappadocians whom they had conquered, a power to use what form of Government they pleased; and many Nations we may read of, which being Conquered, were not∣withstanding left free. Thus was Carthage left at liberty to live under their own Laws, as the Rhodians pleaded to the Romans after the second Punick War.* 1.526 And when the Aetolians told Quintius, that there could be no firm Peace until Philip of Macedon were driven out of his Kingdom: He answered, That they were too severe in their censures, as being unmindful of the common custome of the Romans; who for the most part spared those whom they had in their power, adding this withal, Adversus victos mitissi∣mum quemque maximum animum habere; That he who was mildest towards the Conquered was ever held most magnanimous.

V. Sometimes by keeping of Ga∣risons.

Sometimes though the Empire be restored, yet the Conquerours security is also provided for. Thus it was ordained by Quintius, That the City of Corinth should be restored to the Achaians; but withal; That there should be left a Garison in Acrocorinth, which also was afterwards withdrawn; and that Chalcides and Demetriades should be detained, until all fear concerning Antiochus should cease.

IV. Sometimes by imposing Tri∣bute.

The imposition of Tribute is oft-times, not only for the defraying the charges of a War but, for the mutual security of both the Conquerour and the Conquered for the time to come. Cicero, in his Epistle to his Brother Quintus concerning the Grecians* 1.527, writes thus, Let Asia also consider, That unless She be secured by the Roman Power, She can never be without a Foreign War or Domestick, Broils: And since this Power that secures her cannot possibly sub∣sist without Tribute, good reason it is that She should be contented, with sopme part of her wealth, to purchase to herself perpetual Peace. Thus doth Petilius Cerealis in Tacitus plead for the Ro∣mans,* 1.528 with the Langres and other Gauls, We, say they, though often provoked, yet by the Right of Conquest do offer unto you one only Condition of Peace, namely, That ye pay your Tri∣bute. For Peace among Nations cannot be defended without Armes, nor Armes without Pay, nor can we pay our Souldiers without Contributions. Hereunto likewise we may refer those other things mentioned before,* 1.529 where we discoursed concerning unequal Laws, as the Delivery of Armes, of Fleets, of Elephants, the prohibiting the use of Weapons, the raising of Armies, and such like, whereby the Conquerour may be secured.

VII. What profit a∣riseth from this Moderation.

But that the Conquerour should leave the Conquered possest of his own Kingdom, stands not with humanity only, but sometimes with policy. Among Numa's Laws this is com∣mended for one, That in those Sacred Rites wherewith they worshipped their God Termi∣nus,* 1.530 he would have no bloud spilt; thereby intimating, That nothing could more conduce to a lasting Peace between Neighbour Princes, than to content to live themselves within their own Bounds. It was very well said of Florus, Difficilius est Provincias obtinere, quam face∣re; viribus parantur, jure retinentur: It is much more difficult to keep Provinces, than to make them; for they may be gained by force, but they must be kept by justice. Not much unlike is that of Livy,* 1.531 Facilius parari singula quàm teneri universa; Particulars are more easily gained than Ʋniversals kept. Nor that of Augustus in Plutarch, It is better to govern our own well, than to be possest of a greater Empire. Whereunto we may add that Saying of Darius's Ambassa∣dour to Alexander, A foreign Empire is full of danger: Thou wilt find it very difficult to hold what thou canst not grasp: Some things may be easily gained, yet not so easily kept. How ready are our hands to catch at that, which when they have, they cannot hold? Which Calanus the In∣dian,* 1.532 and before him Oebarus, Cyrus's Friend, did very well emblem out by a dryed Oxe's Hide, which being prest down with our feet on the one side, riseth instantly on the other. And Titus Quintius in Livy by a Tortoise,* 1.533 who whilst he gathers himself up within his Shell is safe, but as soon as he thrusts out any one part he is exposed to danger. Plutarch thus relates, That when the Achaians consulted about the taking of the Island Zant, he disswading from it, told them, That it was a dangerous attempt, if like the Tortoise they thrust their head beyond Peloponnesus. And herein is that of old Hesiod verified, which Plato likewise thus applies,* 1.534 Dimidium plus toto, That sometimes it is better to take up with the one half, than to covet the whole. When some Nations, as Appian notes, would willingly have annexed themselves to the Roman Empire, they were refused: And over other Nations they thought it fitter to appoint Kings, than to unite themselves as Provinces. And in the judgment of Scipio Africanus, the Roman Empire was in his time of so large an extent, that as to effect more might well be thought greediness; so if they could but keep what they had, they might be abundantly happy. Wherefore that Prayer, whereby in their solemn purgations they invoked the Gods to prosper and enlarge their Empire, he so changed, that he prayed only, That they would preserve it in perpetual peace and safety: which the Emperour Augustus thought worthy his imitation; and is therefore com∣mended by Dion, for that he did never attempt any new Conquest, esteeming that which he had already got to be sufficient.

VIII. Examples of the change of Government among the Conquered.

The Lacedemonians, yea and the Athenians also, in their Golden Age, never challen∣ged the Sovereign Power over any City that they took by War; only they required that they should mould their Government according to their own Form. For the Lacedemoni∣ans used an Aristocratical Government, wherein a few of the best governed the rest. But the Athenians used a Democratical, whereby the Government was wholly setled in the People;* 1.535 as Thucydides, Isocrates, and Demosthenes teach us. Nay Aristotle himself confirms as much in several places. Tacitus records the like done by Artabanus at Seleucia* 1.536, Who as∣signed the Government of the Common People to the Noble-men, according to his own use and cu∣stom: For he judged it the next way to Liberty to leave it in the People, as to leave it in a few was the next way to Tyranny. But whether these alterations in Government do conduce any thing to the security of the Conquerour, is not our purpose in this place to deter∣mine.

IX. If the Empire be assumed, to leave some part thereof to the Conquered;

But in case it be not thought safe for the Conquerour to leave the Conquered altogether free, yet may the matter be so moderated, that some part of the Government may be left to them, or their King, with a reservation of some other part to the Conquerour. Taci∣tus tells us, That it was the manner of the Romans to make use of Kings themselves as In∣struments of subjection. Antiochus is said to be, Romanis inservientium Regum ditissimus, The richest of all the Kings that were subject to the Romans. The like we read in the Commenta∣ries upon Musonius, namely, Of some Kings that were subject to the Romans. So in Lucan,

Atque omnis Latio quae servit purpura Ferro.

And every King whom Rome's vast Power commands.

Thus did the Scepter continue amongst the Jews in the Sanhedrim after Archelaus's confisca∣tion. And Evagoras King of Cyrus (as Diodorus testifies) told the King of Persia,* 1.537 That he would obey him, but as one King obeyed another. And when Darius was overcome, Alexan∣der was willing to restore him to his Kingdom, but upon this Condition,* 1.538 That he might command others, but obey him only. Such Kings there were also antiently in Italy, who though they ruled others, yet were themselves subject to other Kings. So in Aeschylus we read, That among the Persians, there were, Reges, Regis magni subices; Petty Kings,* 1.539 that were subject to the Great Kings: As there are now also among the Turks. Now as concerning the manner how an Empire may be mixt, we have already treated; but sometimes a part of a Kingdom being taken away, the rest is left to the Conquered, as is usual after the Conquest to take away some part of the Fields, and to leave another part to the ancient Occupants.

X. Or at least some liberty;

Yet when the Conquered are altogether deprived of their Empire, may there be left un∣to them power over their private Estates, and some smaller things that are publick; as their own Laws, Customs and Magistrates. Thus Philo in his Embassy to Caius saith, That Augustus was no less careful to preserve the Laws peculiar to every Nation, than to preserve the Laws proper to the Romans. So we read also in Pliny, That in Bithynia,* 1.540 being a Proconsu∣lary Province, the City Apimaea retained this priviledge, That they governed their Com∣monwealth at their own pleasure. And in another place he tells us, That it was granted them that they might chuse their own Magistrates, and their own Senate. The City Sinope, though under the Persian Monarchy, was yet permitted to live under a popular Government; as Appianus testifies. Such another shadow of liberty the Grecians enjoyed under the Romans. And Cicero confesseth, That though the Romans had conquered Cy∣prus, yet it was not lawful for the Romans to call the Cypriots out of their own Island. So likewise in Pontus, The City of Amisenes, by the favour of Lucullus, retained the use of their own Laws. And the Goths, though they had conquered the Romans yet they, chan∣ged not the Roman Laws.

XI. Especially in Religion:

Another favour may also without danger be granted to the vanquished, namely, The free exercise of their Religion, and not at all to withdraw them from it; unless it may be done by perswasion: which, as Agrippa in his Oration to the Emperour Caius proves, is both grateful to the Conquered, and no ways prejudicial to the Conquerour. And this was it that, as well Josephus himself as, the Emperour Titus objected against the rebelli∣ous Jews at Hierusalem, That through the Indulgence of the Romans they might exercise their own Religion with so great a right and freedom, that they might drive Strangers out of their Temple, even with the peril of their lives. But in case the Religion of the Conquered be false, yet may the Conquerour make it his care that the true Religion be not oppressed. As the Emperour Constantine did, by weakening Licinius's Party; and as the Francks and other Kings did after him. And although we cannot perswade them to the worship of the true God, yet must we not drive them from the worship of their own. For, to use the words of Severus, Melius est ibi aliquem coli Deum, quàm nullum; Better it is that any God be there worshipped, than none at all. Thus the Goths in Procopius profess, That they would not compel any man to embrace their Religion, but leave them to their own.

XII. At least to use the Conquered gently, and why.

The last Premonition is this, That where the Empire is fully and absolutely got, the Vanquished should be treated with much kindness and clemency, and so as may stand with the mutual good both of the Conquerour and Conquered. Cyrus in Xenophon bids the Assyrians, whom he had overcome, to be of good cheer, for their condition should be the same as before; for they should only change their King, but their Houses, Fields, Wives, Children, &c. should as fully remain theirs, as they were before. And if any man should wrong either them or theirs, he and his would revenge their injuries. We read in Salust, That the Romans always sought to ingage men as their friends, rather than as their Slaves; thinking themselves more safe in a free than in a compulsory obedience. Thus we

read of the Lacedemonians in Thucydides, We, say they, are of opinion, That our worst Ene∣mies may thus be made our best Friends, not if the one Party thirsting only for revenge, and abu∣sing his good fortune, shall endeavour to bind the other Party by Oaths, to Conditions manifestly unequal; but if (though he may so do) he shew no less equity in conquering his own passions, than he did courage and conduct in conquering his Enemies; using his Victory with as much moderation as may stand with his own security.* 1.541 The Britains in Tacitus's days did readily make their Levies, pay their Tributes, and perform all Duties enjoined them by the Romans, so long as they were not provoked by manifest injuries; but such they bare very impatiently, Jam domiti ut parerent, nondum ut servirent; Being already so far conquered as to be Subjects, but not so far as yet,* 1.542 as to be Slaves. That Pincernas in Livy, who was asked in the Roman Se∣nate, What manner of Peace it was that the Romans might expect from him? answered readily, Si bonam dederitis, & fidam & perpetuam; si malam, haud diturnam: If on reason∣able Conditions, that which was firm and lasting; if otherwise, not very durable. Adding this Reason. No Nation, and indeed no man, will remain longer in such a Condition whereof he re∣pents that he is fallen into, than necessity shall inforce him. So Camillus was wont to say, That was the most lasting Empire under which the Subjects rejoyced.* 1.543 Thus the Scythians answered Alexander, Between the Lord and his Slave there can be no true friendship; for though they live in peace, yet there still remains some Rights of War. Thus likewise Hermocrates in Diodorus, To overcome is not so glorious as to use the Victory with clemency and moderation.* 1.544 Whereunto we may refer that excellent Saying in Tacitus, Bellorum egregii fines, quoties ignoscendo transigitur; The effects of those Wars are notable which are shut up with a General Pardon. For as Caesar ob∣serves, Haec nova sit vincendi ratio, ut misericordia & liberalitate nos muniamus; This is a new way of conquering, when we secure our selves by our acts of mercy and liberality.

CHAP. XVI. Moderation concerning such things as by the Law of Nations want the benefit of Postliminy.

• I. That what is taken away by an enemy in an unjust War, ought in equity to be restored.
• II. Examples.
• III. Whether any thing may be deducted.
• IV. That even a people being subjected, or any part of them, if by an unjust War, are to be restored to them whose they formerly were.
• V. In what space of time this obligation to re∣stitution ceaseth.
• VI. What is to be done if the Case be dubious.

I. Things taken in an unjust War ought to be restored.

HOW far forth in a Just War things taken away may be his that takes them, hath been already declared; from which are to be deducted such things as are received by the Right of Postliminy: for these are as if they had not been taken. But the things taken in an unjust War (as we have said before) are to be restored, not on∣ly by those that took them, but by others also unto whomsoever they shall by any means come. Nemo plus Juris ad alium transferre potest, quam ipse habuit; No man can transfer more Right to another than he hath himself; say the first Founders of the Roman Laws, which Seneca thus briefly explains,* 1.545 Nemo potest dare quod non habet, No man can give what he hath not. But he that first took them had no internal Right or Property in them; wherefore neither shall he have any that hath no Title to them, but what he derives from him. Now that Dominion which the second or the third Occupant hath gained, we call exter∣nal; that is, such an advantage that he is every where to be defended in it, by all judicia∣ry Power and Authority, as if he were the first Owner. But yet, if he plead this Right against him, from whom the thing was at first unjustly taken, he deals not honestly. For look what Answer some eminent Lawyers have given concerning a Servant,* 1.546 who being first taken by Robbers did afterwards escape unto the Enemy, namely, That it was true that he was taken away,* 1.547 neither was his having been amongst Enemies, nor that he did return back by Postliminy, any impediment unto him as to that thing. The very same Answer from the Law of Nature may serve concerning him who being taken in an unjust War, and afterwards either in a just War, or by some other means, comes under the power of another. For, as to that which we here call internal Right, there is no difference be∣tween an unjust War,* 1.548 and Piracy or Robbery. And according to this opinion did Grego∣rius Neocaesariensis frame his Answer, being consulted with concerning the Goods of some of his Citizens, which after they had been taken away by the Barbarians, were received by some of the Inhabitants of Pontus.

II. Examples.

Wherefore things so taken ought in honesty and conscience to be restored to their first Owners, as being unjustly taken away, which we see frequently done. Livy having declared how the Volsci and Aequi had been conquered by Lucius Lucretius Tricipitinus, saith,* 1.549 That the spoil was brought and exposed to publick view in the Field of Mars, that every man might within the space of three days find out his own, and take it away.* 1.550 The same Livy in another place, having related the Victory got over the Volsci by the Dictator Posthumius, tells us, That he restored a part of the spoil to such as knew their own, of another part where∣of he made Portsale: And elsewhere he tells us, That two days were allowed for every man to come in, and to lay claim to his own Goods. And in another place, Having recited the joyful Victory which the Samnites got over the Campanes, wherein there were taken seven thousand four hundred of them Prisoners, and a very great Booty from their Associates. He likewise tells us, That the right Owners were summoned by Proclamation to come in by a certain day, to find out and receive back their own Goods. The like fact he records of the Romans; For the Samnites, endeavouring to possess themselves of Interamna, a Colony of the Romans, but not a∣ble to keep it, having plundered the City and depopulated the Country, and driving away before them an infinite number of Men, Cattel, and other things; fell unexpectedly into the hands of the Roman Consul in his return from Luceria, who recovering the spoil, and pursuing the Samnites with great Slaughter, at last exposed all he had got to open view, sending out his Edict, That e∣very man might come in and receive his own. The same Authour speaking of the Prey taken by Cornelius Scipio at Ilippa, a City in Portugal, saith, All which being exposed to view before the City, every man had leave granted to search out and take away what was his own; the rest was delivered to the Questor to make sale of; which was presently done, and the money divided a∣mong the Souldiers. So again, after the Battel fought by Titus Gracchus at Beneventum,* 1.551 The whole Prey, except the Prisoners, was divided among the Souldiers; but the Cattel were pre∣served, which the right Owners had liberty given them within thirty days to find out and to reco∣ver. The like doth Polybius record of L. Aemilius, Who having conquered the Gauls,* 1.552 resto∣red all the spoil to them from whom it had been taken. The very same doth Plutarch,* 1.553 Appian and Diodorus testifie of Scipio the African, who having taken Carthage, ••••funded their many rich Presents which the Carthaginians had taken from the Cities of Sicily, and elsewhere, and brought thither: With whom agrees Valerius •• ••aximus concerning the same Scipio,* 1.554 Whose humanity, saith he, was such, that having taken Ca thage he sent Letters to all the Ci¦ties of Sicily,* 1.555 That they might by their Ambassadours receive back all the Ornaments of their se∣veral Churches, which the Carthaginians had taken from them; which he desired them to take care of, and to set them up in their former stations. The like testimony doth Cicero give of him, The Carthaginians, saith he, did formerly possess themselves of Himera, one of the beautifullest and best adorned Towns in Sicily; Scipio esteeming it an act worthy of the Roman People, took care that, the War being ended, and Carthage taken, all the ancient Ornaments taken at any time from the Sicilians should be restored unto them.* 1.556 Thus did the Rhodians restore four Ships to the Athenians, which they had recovered from the Macedonians, who had formerly unjustly taken them from the Athenians. So likewise Peneas the Aetolian,* 1.557 as Livy re∣cords it, thought it sit that all that before the War began had been the Aetolians, should be restored unto them: which Titus Quintius did not deny,* 1.558 had the demand been only of Cities taken in War, and had not the Aetolians first broken the Laws of friendship. Nay even those Goods that were at first consecrated to the Temple at Ephesus,* 1.559 which afterwards their Kings made their own, the Romans caused to be restored to their former condi∣tion.

III. Whether any thing may be deducted.

But what if such Goods so taken shall come unto us by way of Commerce, may we not charge him from whom they were taken with so much as they cost us? We may, as we have already said* 1.560, so far forth as the recovery of the possession of things so desperately lost, would probably have cost him from whom they were taken. And if the charges may be required of him, why may not our labour and peril also be valued, as if a man should recover some precious Jewel of another mans out of the Sea, by diving unto the bottom? Very pertinent unto this is the Story of Abraham's return from the Conquest of the five Kings, Reduxit omnes illas res, He brought back all those things,* 1.561 saith Moses (i. e.) which the Kings had taken away. Neither can we refer that Offer which the King of So∣dome made unto Abraham, of restoring the men, and detaining the Goods to himself, to any other cause than this, That those Goods should be the reward of his pains and peril. But that Abraham refused to take any thing to himself of the Prey, was an Argument of his, no less piety than, magnanimity; which was very well observed by Jacchiades on the fifth Chapter of Daniel. Nevertheless, of the things so recovered,* 1.562 he gave the tenth to God, as being due to himself by the reason of his necessary charges, and some portion thereof he was willing should be given to his Companions. S^t Ambrose, speaking of this generous fact of Abraham, saith, The reward which he refused from men he received from God. And Sulpitius speaking of the rest of the spoil, saith. That Abraham restored it to those from whom it was taken. Not much inferior to this of Abraham's was that Heroick Act of

Pittacus the Mytilenean,* 1.563 recorded by Valerius Maximus, Who being offered by the general consent of his Country-men the one half of the Land taken from the Athenians for his good con∣duct, utterly refused it; accounting it a dishonour to sully the Glory of his Victory, by receiving so large a part of the spoil.

IV. The people or any part of them, to be restored, if un∣justly possest.

As things taken in an unjust War are to be restored to their right Owners, so a people or any part of a people ought to be restored to him or them who had the Right of Go∣vernment over them, or even to themselves, if before any unjust force was used against them, they were a free people. Thus we read of the exiled Saguntines, That after six Years they were restored by the Romans* 1.564. So Anthony in the War of Cassius set at liberty all those that were made Bondmen, and commanded their Goods to be restored unto them. Thus also was Calatravia restored by the King of Castile and others to the Souldiers, from whom the Moors had before taken it† 1.565. And so also was Sutrium taken and restored in Ca∣millus's time, as Livy testifies* 1.566. The Aeginetae and Melii were likewise restored to their Ci∣ties by the Lacedemoniaes. The Cities of Greece, which had been subdued by the Mace∣donians, were set at liberty by Flaminius; who in the Treaty he had with Antiochus's Am∣bassadour, insisted on this as a Point of Equity, That the Asian Cities, which were called by Greek Names, should be restored to their liberty; which Seleucus, the Great Grand∣father of Antiochus, had taken by force, and which afterwards, being lost, were re-taken by the same Antiochus: For, saith he, those Grecian Colonies were not sent into Aeolia and Io∣nia to be enslaved by the King; but for the encrease of the Greek Race, and to propagate that ancient Nation throughout the World.

V. In what time the obligation to restitution ceaseth.

It is sometimes questioned, How long a time is required before this Obligation to resti∣tution ceaseth? But this Question, if it happen to arise between Subjects of the same Em∣pire, is best determined by their own Laws; that is, in case those Laws will admit of this Internal Right, and not of that only which is External: which by a prudent inspection in∣to the words and purpose of those Laws may be collected. But in case it be between such as are Strangers to each other, then it must be determined by a sole conjecture of the former Owners dereliction,* 1.567 whereof we have sufficiently spoken as far as is fit for our pur∣pose.

VI. What if the Right of War be dubious.

But if the Right of War be very ambiguous, it is best to follow the Advice of Aratus the Sicyonian (as King Ferdinando did* 1.568) who in part perswaded the new Occupants to ac∣cept of present money, and to yield up their possessions; and in part perswaded the an∣cient Lords to accept of the value of their Lands, rather than to hazard the recovery of them.

CHAP. XVII. Of Neuters in War.

• I. From Neuters nothing is to be taken away, but in extreme necessity; nor then without restoring the full value.
• II. Examples and Precepts of such abstinence.
• III. What the Duty of Neuters are to such as are at War.

I. From Neuters nothing must be taken but upon pure ne∣cessity.

THough it may seem impertinent here to treat of such as are not concerned in War, because against these it is plain, That War hath no Right at all; yet seeing that many outrages are committed, and many injuries done against such, if Borderers, (by reason of the War) upon pretence of necessity; it will not be much amiss briefly to repeat here what hath elsewhere been delivered more at large* 1.569. In the first place therefore we must remember, That it is required that that necessity that gives us a kind of Right to that which is properly anothers, must be extreme; Secondly, That there be not a like ne∣cessity in the right Owner of the thing; Thirdly, If there be such an extreme necessity, it is plain that we ought to take no more than what our present necessity requires. As for example, If the bare custody be sufficient, we ought to forbear the use; if the use be neces∣sary, we ought to forbear the abuse; if the abuse be necessary, we ought to give the full value of it to the right Owners.

II. Examples of abstinence, and some Precepts.

Moses being necessitated to pass with his Israelites through Idumaea, promises first to pass only through their High-ways, and not to hurt either their Fields or Vineyards; and in case they should want water, they would pay for it. Those famous Generals, both of the Greeks and Romans, did the same. The Greeks in Xenophon* 1.570 under Clearchus promise the Persians, That in passing through their Country they would offend no man. And if they might be supplied with necessaries for their money, they would not forceably take ei∣ther Meat o•• Drink from any man. Thus did Dercyllides pass with his Army through Countries that were quiet, without offence given to the Provincials. Livy testifies the same of King Per∣seus, That he passed into his own Dominions through Phthiotis, Achaia and Thessaly, without any damage or injury done to the Country through which he past. The self same doth Plutarch testi∣fie concerning the passage of the Army led by Agis the Spartan into Peloponnesus, It was a pleasant Spectacle, saith he, to all the Cities of Greece to see how civilly and inoffensively they marched, and almost without noise. The like Testimony doth he give to Titus Quintius Fla∣minius. Thus Vellejus writes of Sulla, That he led his Army through Calabria and Apulia into Campania, so orderly, and with such singular care of their Fruits, Fields, Cities and People,* 1.571 as if he had come into Italy, not as one meditating revenge, but as a Peace-maker.* 1.572 Tully speaking of the Great Pompey, saith thus, Whose Legions came into Asia so inoffensively, that neither the hands of so great a multitude, nor the print of their feet,* 1.573 were observed to hurt any that lived peaceably. And understanding that some of his Souldiers had misbehaved themselves in their March, Sigillum Gladiis eorum imposuit, quod qui non custodisset, is puniebatur; He sealed up their Swords in their Scabbards, which Seal whosoever brake was severely punished.* 1.574 Fronti∣nus thus testifies of Domitian, That being about to raise new Forts and Castles upon the Fron∣tiers of the Ubii, he caused all the Fruits growing within the places which he intended to intrench, to be first apprized and paid for, and thereby got himself so great a fame for his Justice, that eve∣ry man was willing to trust him. So likewise Lampridius concerning the Parthian Expedition of Alexander Severus, tells us, That his Army was so well disciplined, and bore so great a reve∣rence to his Person, that they seemed rather Senators than Souldiers. For the Tribunes were so ready, the Captains so modest, and the Souldiers themselves so friendly, that the Country-people wheresoever he came, for those many and great benefits they received from him, honoured him as a God. The Panegyrist, speaking of the Goths, Vandals and Alanes that served under the Emperour Theodosius, saith. That in that Army there were no such tumults, nor such confu∣sions, nor such robberies committed, as were among the Barbarians; but if at any time there hap∣pened to be a scarcity of provision, they sustained it patiently, lessening every mans dimensum or proportion, as either their numbers encreased, or their Stores decreased; which very praise Clau∣dian gives unto Stilico:

Tanta quies, tantúsque metus, Servator honesti, Te moderante fuit, nullis ut Vinea furtis Aut seges erepta fraudaret Messe Colonum.

The Army thou in so much awe didst leave, That no mans Vineyard was of Fruits bereav'd, Nor Farmer of his Harvest hopes deceived.

Concerning the singular modesty of the Goths in their Wars, we find many rare testi∣monies in Cassiodore,* 1.575 but especially in the twenty fifth Epistle of the eleventh Book, where he brings in the Emperour giving his charge to his Souldiers, Ye shall destroy neither the Corn nor the Meadows in your march towards us; but ye shall hasten hither without giving offence to any, that so your access unto us may be acceptable, who for this very reason do freely undergo the whole charge of the War, that so you may preserve the reputation ye have gained by your civility, unblemished. The like testimony doth Suidas give of Belisa∣rius, whose admirable Discipline is so celebrated by Procopius* 1.576 (as being both his Com∣panion in Arms, and a witness and strict observer of all his Actions) whose excellent speech to his Souldiers, as they were marching into Africk, is worthily recorded by Procopius in the first of his Vandal Wars.* 1.577 But that which he records of him in the third of his Gothicks, deserves to be here inserted, whose words sound to this sence, So great was his care of Husbandmen, that no violence was at any time offered unto them, whilst Belisarius was their General; but on the contrary, the Provincials grew rich whither∣soever he came with his Legions; for they sold them necessaries at their own rates, and when the Corn grew ripe, his care was doubled, that the Horse-men should not spoil it, nor were any of his Souldiers permitted to pluck so much as an apple from the trees. The like Discipline Gregoras extols among the Venetians,* 1.578 Where justice and magnanimity seemed to contend for mastery, no man being permitted to straggle from the Army, or to take away any thing but what he bought with his money: which might easily be done where there was plenty of Provision,* 1.579 the Army well paid, and a strict Discipline constantly observed, whose principal Law is, That the Countries with whom we have Peace should not be wasted. Where∣fore, saith Pliny* 1.580, did the Roman Generals make it their greatest care in their Wars that there should be freedom of commerce? Whereunto Cassiodore gives this answer† 1.581, Ʋt habeat miles quod emat, ne cogatur cogitare quod auferat; That what the Souldier wants he may buy, which otherwise he should be enforced to steal. Vopiscus brings in the Emperour Aurelian giving this charge to his Souldiers* 1.582, Nemo pullum alienum rapiat; Let none of you presume to take away a Chicken or a Sheep of another mans; let none of you presume to trample down the Corn, to pluck a Grape, or forceably to require from any man either Oyl, Salt, or Wood, &c. So likewise in Cassiodore, Vivant cum Provincialibus, jure civili; nec insolescat ani∣mus qui se sentit armatum: Let the Souldiers live with the Provincials according to the rules of the Civil Law; neither let them grow insolent because they know themselves to be armed, for the shields of our Army ought to protect our friends in Peace. Apposite whereunto is that of Xenophon,* 1.583 No City that is at Peace can be compelled to give us any thing against their will. By all which wise precepts, we may the better understand those cautions which the great Prophet gave unto the Souldiers, who demanded of him what they should do, Luke 3.14.* 1.584 namely, Offer violence to no man, accuse no man falsly, and be content with your wages. Where, by the way we may observe, that the words here translated accuse no man, may as well be translated (as it is elsewhere) Oppress no man, or, Defraud no man, as will appear by the Greek Version of the same word, Job 35.9. and other places. And by the vulgar Latine, Luke 19.8. Agreeable whereunto is that of Aurelian in Vopiscus, Let the Souldier be content with his allowance, and let him chuse rather to enrich him∣self with the spoil of his Enemies, than with the tears of Strangers. There are many excel∣lent Penal Laws in Gregory Turonensis to this purpose. That of Frederick the first, Gun∣ther thus translates,

Si quis pacificae plebis villasve domosve Ʋsserit, abrasis signabitur ora capillis, Et pulsus castris, post verbera multa recedet.

Who peaceful Countries waste or Houses burn, B'ing branded in the front with Hair all shorn, And smartly whipt, shall from the Camp be turn'd.

Neither is there any reason that any man should think that these things thus generously spoken cannot be done; for neither would so holy a man as St John was, advise, nor so many wise Law makers command that which they believed to be impossible. Besides, what we have seen done, we must needs grant may be done; but that it hath been done we have already proved by many examples. Whereunto we may add that nota∣ble one of Frontinus (recited out of Scaurus) Of an Appletree hung full with fruit,* 1.585 which

happening to stand within the compass of ground whereon the Camp was that day pitcht, was the next day, the whole Army being gone, left with all her fruits untoucht. And that exemplary punishment taken by Niger on a Souldier of his, for but taking away of a Dunghil Cock, as it is related by Spartianus.* 1.586 Livy having declared how dissolutely the Roman Souldiers lived in their Camp at Sucro, when straggling from the Camp by Night, they robbed and pillaged the Countries round about that lived at Peace: Adds this as the Cause, That all things were done loosly and licentiously, without or∣der or military discipline. Another notable place we find in Livy to this purpose, where description is made of Philips march through the Territories of the Denthelatae,* 1.587 These (saith Livy) had been Philips Associates, but yet the Macedonians pressed by want, wast∣ed their Country as if it had been the frontiers of their Enemies, robbing and pillaging every where as they went, first great Houses and small Villages, afterwards laying waste some Towns, to the no little shame of the King, who from all parts heard his friends and confederates implo∣ring in vain the Gods and him for redress.* 1.588 Pelignus we find branded by Tacitus with in∣famy, for that he did more hurt to his Friends than to his Enemies. And the Vitel∣lian Souldiers were notorious throughout all Italy for their sloth and Thievery, and for this cause were only terrible to those that entertained them. And here I cannot but insert the opinion of some Divines which I conceive to be very right, namely,* 1.589 That the King who pays not his Army, stands obliged not to the Souldiers only, but to his Subjects and Neighbours for the injuries they sustain by them, who without pay cannot live, but by rapine and plunder.

III. The duty of those that are at Peace.

On the other side, it is the duty of those that are not concerned in the War, to do nothing whereby he that foments an ill cause may be strengthened, or whereby he that moves in the defence of a good cause may be hindered, according to what hath been already said: But where the cause is doubtful,* 1.590 to shew themselves equally civil to both parties, whether it be by suffering them to go through their Country to pass and repass with their Legions, or by not relieving either, being closely besieged. The Corcyrenses in Thucydides tell the Athenians, That it concerned them if they would be thought Neuters, neither to suffer the Corinthians their Enemies, nor themselves to raise forces in Attica. For this, the Romans objected against Philip, that he had doubly violated his League with them; first, in wronging their Friends, and again, in assisting their Enemies with Men and Money. The very same objections T. Quintius makes in his Treaty with Nabis, Thou say'st (saith Quintius) that thou hast not directly violated thy league with us: How often shall I convince thee that thou hast? I shall not use more arguments, but shall draw to this issue; By what means thinkest thou may friendship be bro∣ken? certainly by these two chiefly; if thou persecutest our Associates as thine Enemies, or joinest thy self with our Enemies against us. Agathias tells us,* 1.591 that he is an Enemy who doth that which pleaseth an Enemy. And Procopius reckons him to be in the Enemies Army, who supplies the Army of an Enemy with things properly appertaining to War. Queen Elizabeth tells the Hansetowns, complaining that their priviledges were broken by her seizing of some hulks carrying warlike provisions into Spain, who had then o∣pen War with England, That the right of neutrality is in such sort to be used,* 1.592 that whilst we help the one we hurt not the other. And so on the contrary, as Amalasuntha in Her Epistle to Justinian pleads, He is a friend and companion, who though he stand not in a readiness to fight, yet readily and openly supplies us with all things requisite for War. Of the same opinion was Demosthenes of old, Qui ea facit aut machinatur quibus ego capi possim, eti∣amsi nec feriat, nec jaculum emittat, hostis mihi est; He that makes or contriveth such things whereby I may be taken, though he neither strikes me, nor throws a dart at me, is mine Ene∣my. M. Acilius tells the Epirots,* 1.593 who though they sent no supplies of Souldiers to Antiochus, yet were accused for supplying him with money, that he knew not whether he should rank them among Neuters or Enemies.* 1.594 And L. Aemilius the Praetor re∣proves the Teji, for that they had victualled the Enemies Fleet, and promised them wine; adding withal, that unless they did the like for them, they should be held as Enemies. We shall conclude with that of Augustus Caesar recorded by Plutarch,* 1.595 Pacis jus amittit Civitas, quae hostem recipit; That City hath lost its right to Peace, that receives and protects an Enemy. It would be very commodious for us therefore, if such a League could be made with both parties engaged in War, that with their consents we might sit still as wellwishers to both; and yet, that it may be lawful for us to perform the common duties of humanity to either of them. So Livy, Pacem,* 1.596 quod medios decet ami∣cos, optent; Bello se non interponant: It behoves those that are friends to both parties, to en∣deavour to make Peace, but not to engage themselves in War on either side. Archidamus King of Sparta perceiving the Elians inclining to take part with the Arcadians, wrote an Epistle unto them, wherein were contained these words only, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, It is good to be quiet.

CHAP. XVIII. Concerning things privately done in a publick War

• I. Whether it be lawful to hurt a publick E∣nemy privately, explained by a distinction.
• II. What they may lawfully do against an Ene∣my by internal justice, that make War at their own private charge (i. e.) as Privateers; first in respect of the Enemy:
• III. Secondly in respect of the State or City under whom they fight.
• IV. What the Laws of Christian Charity re∣quire of them.
• V. How a private War may be mixt with a publick.
• VI. Ʋnto what he stands obliged, who without order damnifies an Enemy, explained with a distinction.

I. Whether to hurt a publick Enemy pri∣vately, be law∣ful.

WHAT we have hitherto said doth mostly appertain unto such as have the supreme Authority in an Army, or unto such as are to execute publick commands. Now we are to see what in a publick War may privately be done, whether we respect the Law of Nature, Nations, or the Divine Law. Cicero in the first of his Offices relates, that when Marcus the Son of Cato the Censor, had listed himself in the Army under Pompilius the General, that Legion in which he served being disbanded; yet he for the delight he took in Arms, continuing still in the Army, Cato wrote to Pompilius, desiring him in case his Son would continue there, to give him a se∣cond Oath; adding this reason, because the former Oath being with that Legion dis∣charged, it was not lawful otherwise for his Son to fight the Enemy. Whereunto the same Cicero adds the very words of Cato recited out of his Epistle to his Son, wherein he adviseth him, To take heed how he engaged in Battel, for that it was not lawful for him to kill an Enemy being then no Souldier. So we read in Plutarch of one Chrysantas a Souldier under Cyrus,* 1.597 who having his Sword lifted up to kill his Enemy, and hearing the Trumpet sound a Retreat, withdrew his hand and would not hurt him (as if it were only the necessity of obeying his General, that could justifie a Souldier in killing his Enemy, without which it would be no better than Homicide.) Seneca tells us, That that Souldier is useless that neglects the sound of a Retreat.* 1.598 Now they that conceive this to proceed only from the external Right of Nations are mistaken. For if we respect that Right only,* 1.599 it is lawful for any man as to possess himself of his Enemies Goods (as hath been said) so to take away his life also; for by that Right, Hostes pro nullis habentur; Enemies are not reckoned as men. This therefore that Cato adviseth, proceeds from the Roman Military Discipline, which provided, That he who being a Souldier observed not the word of Command, though the success were good, should notwithstanding be put to Death (as Modestinus observes:) But he that without order or command should engage in fight with an Enemy, was so understood as if he wilfully disobeyed his Ge∣nerals command;* 1.600 as we are taught, as well by the severity of Manlius to his own Son, as by the like proceedings of Epaminondas against his. Because in case such things may rashly be done, it may happen that Souldiers may sometimes desert their own stations; which licence encreasing, the whole Army or some part thereof, may happen to be unex∣pectedly engaged on terms very unequal, which by all means is to be avoided: which is the reason why Acidius Cassius past the sentence of Death in the like case, Evenire potuit ut essent infidiae; It might have so happened, saith he, that ambushes had been laid to the destruction of the Army. And therefore Salust in his description of the Roman Di∣scipline, tells us, That in War, as well they who contrary to command had fought the Enemy, as they who being called back made not their return in time, were frequently pu∣nished. A certain Spartan being just about to kill his Enemy whom he had in his Power, hearing the Trumpet sounding a Retreat, suddenly staid his hand, giving this reason for it, Praefectis parêre satius est quàm hostem occidere; Better it is to obey our Commanders than to kill our Enemy. And Plutarch gives this as the reason, why he that is dismist the Army, hath no Right to kill an Enemy, because he is not bound by any Military Laws, which they that are to fight the Enemy are obliged to observe.* 1.601 Epictetus in Arrian, reciting the fact before-mentioned of Chrysantas, adds, Tanto illi potius videbatur Ducis quam suam voluntatem exequi; That he thought it much better to execute the commands of his Captain than to humour his own passion. But if we respect that Right which is inter∣nal and natural, it seems lawful in a just War for any man to do those things where∣by the innocent party may receive benefit, so as he exceed not the just measure of ma∣king War: not that it is lawful for him to make any thing that he takes from the E∣nemy his own; for to him there is not any thing owing, unless haply it be in the na∣ture

of a punishment, which he exacts by that Right which is common to all man∣kind, which in what measure it is by the Evangelical Law restrained, may easily be understood by what we have said above.* 1.602 Now a command in War may be either General, or Special: General as when in a tumult among the Romans, the Consul cryed out, Qui Rempublicam salvam volunt, me sequantur; Let them that wish the safety of the Commonwealth follow me. Nay,* 1.603 sometimes this power of killing is granted to every Subject, beyond what is done in our own defence, if it be expedient for the publick safety,

II. What Refor∣madoes and Privateers may do by internal Right against an Enemy.

A special charge or command to kill an Enemy may be given, not only to them who receive pay, but to those who go to War on their own charge; or (which is yet more) who administer upon their own charge a part of the War, as they that build, set out, and maintain men of War at their own private charge, who instead of pay, gain to themselves whatsoever they can take from the Enemy, as is elsewhere decla∣red† 1.604: which how far it is agreeable to that which we call internal justice, is worthily dis∣puted. This justice hath respect, either to the Enemy, or to the City, with which we make our Contract. From an Enemy, the possession of all things that may conduce to the maintenance of the War, may for our own security be taken away, but this must be under a condition of restitution; but the Dominion or property in those things must be no farther retained, than will serve to compensate the costs and damages which that City that maintains the War hath been at, either from the beginning, or in the prosecution of the War; whether the things so taken, belong to the Commonwealth that is at enmity with us, or some private Citizens thereof, though haply of themselves they are innocent: but the goods of such of their Subjects as are nocent, or in actual Arms against us, may be taken and detained by way of just punishment. Things there∣fore taken from the Enemy may be theirs, who at their own charge maintain part of the War in respect of the Enemy, so far forth as to ballance their damages and ex∣pences, with some allowance for the peril they undergo, which also ought to be valu∣ed by equal Arbitrators.

III. What in re∣spect of their own City.

But as to the City with whom we contract, the same will be internally just, if at least there be an equality in the Contract, that is, in case the charge and peril we undergo, be but equivalent to the Body we take or may hope to gain. But if the Booty hoped for, do in value surmount the charge and danger, the overplus ought to be restored to the City; just as he that buying at a low prize, the cast of a Net, which though uncertain, yet is easily made, and yet of great hopes (if it answer his expectation, is bound to give to him with whom he did contract, so much as to make the ballance even.)

IV. What Christi∣an charity re∣quires.

But suppose that what we do thus take, be no more than what in strictness of justice we may keep, yet may we thereby break the bonds of charity, wherein, as Christians we stand obliged; as in case it appear, that the Booty so taken, doth not impoverish the Commonwealth or the King that maintains the War, or those particular persons that are in actual Arms against us; but rather such particular persons as are innocent, who likewise are thereby reduced into so miserable a condition, that in case we should cast those who are privately indebted unto us into the like, we should be thought unmercifully cruel. Whereunto if we likewise add, that the spoil we take from these, contributes little or nothing, either to the finishing of the War, or to the enfeebling of the Enemies strength, it will easily convince us that it would ill become an honest man, much less a Christian, to make an advantage to himself by the sole infelicity of the times. For which very thing it was that Plutarch so highly blamed Crassus, saying, Pleraque horum ex igne belloque rapuit, nihil magis lucro habens quam communes calamitates; The greatest part of whose riches he gained by Fire and by War, raising his private fortunes by nothing more than by publick calamity.

V. How a private War may be mixt with a publick.

But it sometimes happens, that by the occasion of a publick War there ariseth a pri∣vate; as if a Man fall by accident amongst his Enemies, and is thereby in danger of his life or Goods, in which case, such means as we have already granted* 1.605, may lawfully be used in defence of our lives and fortunes. We read that sometimes in War, private profit is warranted by publick Authority; as when a man having sustained some extra∣ordinary damage by the Enemy, obtains of his Prince a Commission to repair, his losses by what he can get from the Enemy, which also is to be limited in the same manner,* 1.606 as pledges, and such like things are that are left in gage.

VI. How far he stands obliged, who without command hurts an Enemy.

But in case any Souldier or others, shall in a just War set fire to an Enemies House, or destroy his Fields, or commit such and such like Acts, whereby the Enemy is dam∣nified without special order or command from his Superiours, whereunto we must add, unless it be in case of necessity, or for some other just cause, That man according to the opinion of our best Divines, stands obliged to make satisfaction. I have here added what they have omitted, unless it be for some other just cause; because if there be a∣ny such cause, he may haply be bound to answer for it to his own Prince or State,

whose Laws he hath transgrest; but not to his Enemy, to whom he hath done no wrong. Not much unlike was that Answer which a certain Carthaginian made to the Romans, who demanded, That Hannibal should be delivered to them: We, saith he, are not to dispute with you, Whether Saguntum were besieged by the private command of Hannibal, or by the publick Decree of the Carthaginian Senate; but whether it were justly or unjustly done, for it belongs unto us only to call him to an account, being our Subject, whether he did it by his own Authority, or by ours. This only concerns you to enquire, Whether it were lawful to be done by that League which we have made with you.

CHAP. XIX. Concerning Faith to be kept between Enemies.

• I. That faith is to be kept with all sorts of E∣nemies.
• II. The Opinion, That faith is not to be kept with Thieves and Tyrants, refuted.
• III. This Argument, That such deserve punish∣ment, answered; being not considerable when we treat with them as such.
• IV. Nor will it avail to urge, That the promise was extorted through fear, if he that made the promise was not himself affrighted;
• V. Or if the promise were confirmed by Oath, though with men such a violation is not punish∣able.
• VI. This fitted to rebellious Subjects in Armes.
• VII. A notable difficulty handled, concerning promises made to Subjects in respect of the Sovereign Power. Where it is shewed,
• VIII. That such promises may be confirmed by the Oath of the City:
• IX. Or it may be made to a third Person on the behalf of such Subjects.
• X. How the Government of a State may be changed.
• XI. That by the Law of Nations the exceptions of fear appertain not to a solemn War:
• XII. This to be understood of such a fear as is acknowledged by the Law of Nations.
• XIII. That faith is to be kept, even with such as are perfidious:
• XIV. But not if the Conditions are not fulfil∣led; Or if either Party refuse to stand to any part of the Agreement:
• XV. Nor if the thing promised be counterbal∣lanced by a just Debt:
• XVI. Though that Debt be due upon another account;
• XVII. Nor if the Promiser be otherwise damni∣fied to the like value:
• XVIII. Or if the value of the thing promised be due by way of punishment.
• XIX. How these take place in War.

I. That faith is to be kept w^th Enemies of all sorts.

WE have already shewed, What and how much may lawfully be done in War, simply and in it self considered. We are now to consider what and how much may be done, as considered in relation to some foregoing promise, namely, Concerning the faith which Enemies ought to keep one with another. It was no∣tably said by Silius, an Italian Poet, concerning a Roman Consul:

—Optimus ille Militiae, cui postremum primúmque tueri Inter Bella fidem.

He amongst Generals the best praise deserves, Who first and last in Wars his faith preserves.

Xenophon in his Oration concerning Agesilaus, from his Example concludes thus, So great and excellent a thing it is for every man, but especially Generals, to be just, and to be so accounted in the performance of their Oaths and Promises.* 1.607 So Aristides, In the preservation of Peace and of all other publick Agreements, they are ever most to be regarded that are most just. There is no man, as Cicero well observes, but approves of and commends that affection of mind by which no profit is sought after, but rather faith is preserved against profit. It is the publick faith only, as Quintilian the Father rightly observes, that makes Truces even a∣mong armed Troops, and that conserves the Right of surrendred Cities. Faith, saith the same Quintilian,* 1.608 is the strongest and most indissoluble Bond of humane Society. Sacra laus fidei inter Hostes, Its reputation is great, even amongst Enemies. Fides sanctissimum humani pe∣ctoris bonum; Faith, saith Seneca, is the most precious Ornament of the rational soul, the best gift that God bestows upon Men, the strongest support of humane Society. It is the Cement that

binds up all Traffick and Commerce between man and man,

Qua sine non Tellus Pacem, non Aequo••a norunt, Justitiae Consors, tacitúmque in pectore Numen.

—without her No Peace is firm either by Land or Sea, She's Justice's Mate, an inward Deitie.

The Romans placed her in their Capitol next to Jupiter himself; and deservedly, for a great cause of their prosperity may be attributed to their faith, which they religiously kept both with their Friends and Enemies. Though all other Laws sleep in War, yet must Faith and Ju∣stice be strictly observed, saith Ambrose. Of the same mind was S^t Augustine,* 1.609 Fides quando promittitur etiam hosti servanda est, contra quem Bellum geritur; When our word is past, it must be kept, though with an Enemy, against whom we wage War. Foedera jurastis, dexteras dedistis, quae etiam inter Hostes valent; Ye have sworn Leagues with us,* 1.610 saith Archelaus the Philosopher in Appian, Ye have plighted unto us your Faith, all which are in force even amongst Enemies. For in being Enemies they cease not to be rational men, but by being men endowed with reason they are capable of a Right by virtue of a promise. Camillus in Livy professeth, That there was between him and the Falisci such a Society as was common with all Mankind; but even from this common Society of discourse and reason, there naturally ariseth that ob∣ligation from a promise, whereof we now speak. Neither must we think that because (as many Authours hold) it is lawful, or at least blameless, to deceive an Enemy by falsehood; therefore by a parity of reason the same may be done, though we have given our faith. For the obligation of speaking truth proceeds from a cause long preceding any War, and which may haply be in some measure relaxed by War; but a promise doth of it self confer a new Right: which difference was clearly discerned by Aristotle, who treating of veracity thus distinguisheth, I speak not of him who speaketh truth in ordinary Contracts and A∣greements, and in those which appertain unto Justice and Injustice; which are indeed Branches of another Vertue. Pausanias, speaking of Philip of Macedon, gives of him this Character, No man, saith he, can well style him a good Emperour, as being (indeed) always regardless of his Oaths, though made by the Immortal Gods, and upon every slight advantage faithless in his promises; so that, though a King, no man was less to be believed, either upon his Word or Oath, than himself. The like testimony doth Valerius Maximus give of Hannibal, namely, That as profest an Enemy as he was to the people of Rome and all the Italians, yet was he a much greater Enemy to faith and sincerity, rejoycing always in falshood and lies, as if they had been com∣mendable Vertues; whereby it came to pass, That whereas he had otherwise bequeathed unto the World an honourable memory of himself, he hereby left it disputable, Whether his Vices did not exceed his Vertues. Thus the Trojans in Homer, being prick'd in conscience by reason of their perfi∣diousness, condemn themselves:

—rumpentes Foedera sacra, Juratamque fidem, pugnamus; non quibus fas est.

Breaking our sacred Leagues, and Faith, though sworn, We fight 'gainst those who such false Dealings scorn.

II. Faith to be kept with Thieves and Tyrants.

Neither, as we have already said* 1.611, may we admit of that of Cicero, Nulla nobis Societas cum Tyrannis, That no Society is to be held with Tyrants. No, nor of the same Cicero, Pirata non est perduellium numero, cum hoc nec fides esse debet, nec jusjurandum commune; A Pyrate is not to be reckoned as any mans particular Enemy, with whom neither faith nor common Oath is to be kept. Nor that of Seneca, who speaking of a Tyrant, saith† 1.612, All Obligations to him are cancelled, if he cut off from that which is the common Right of all Mankind. From which impure Fountain proceeded that errour of Michael Ephesus* 1.613, who taught, That it was not Adultery that was committed with the Wife of a Tyrant. Non putans Adulterium Ʋxorem Tyranni polluere; sicut nec homicidium, Tyranvum occidere: Supposing it, saith Seneca† 1.614, no Adultery to pollute the Wife of a Tyrant, nor Murder to kill him. Thus Julius Clarus* 1.615 con∣ceived that a Woman who stood out-lawed might be lain withal, without being punished as an Adulterer. And thus did some of the Jewish Doctors maintain the like errour concerning Strangers* 1.616, whose Marriages they reckoned as none at all. But Pompey finished a great part of that Naval War which he made against Pyrates, by covenanting to preserve their lives, and to assign them a Country wherein they might live without rapine. And of Didius we read, That he was condemned as perfidious, for breaking faith with the Cel∣tibrians, who lived by robbery. Caesar also in the third of his Civil Wars, writes of a composition made by the Roman Captains, with the Tories and Renegadoes, who lay lurking in the Pirenaean Mountains. Now who can say, That such a composition being

made is not binding? 'Tis true indeed that such Agreements do not produce so friendly a Communion, as that which the Law of Nations hath introduced between Enemies engaged in a Solemn and Just War: But yet, being men, it may induce such a Communion as natural Right affords them; as Porphyry rightly argues, which is sufficient to prove that such Con∣tracts are to be performed. Thus did Lucullus keep his faith given to Apollonius, who was Captain of the Renegadoes; as Diodorus records. And thus did Augustus pay the ran∣some imposed on him by Crocata the Thief, being by him apprehended, rather than he would satisfie his word; as Dio testifies.

III. This Objecti∣on. That such deserve punish∣ment, answer∣ed.

But let us now see what more probable Argument than those brought by Cicero may be produced. The first whereof is this, That such as are notoriously wicked, and are no part of a Civil Society, may by the Law of Nature be by any man punished, as we have else∣where shewed. But they that may lawfully be punished, even with death, may also be lawfully dispoiled of their Goods, and dispossest of their other Rights: as the same Cicero well observes,* 1.617 Non est contra Naturam spoliare eum si possis, quem honestum est necare; It is no violation of the Law of Nature to despoil him of his Goods if we can, whom it is lawful to kill. But among those things wherein he claims a Right, even those which accrew unto him by virtue of any promise that is made to him, may be included; and therefore even those, by way of punishment, may lawfully be taken from him. Whereunto I answer, That all this may be very true, if we did not knowingly treat with him as such: But in case we treat with a Thief, as such, we are so to be understood as if we were contented to remit the punishment due, as to that offence; because, as we have elsewhere said, promises are al∣ways to be taken in such a sense, as that we make not the act void. Thus the old Pimp in Terence,

Leno sum, fateor; Pernities communis Adolescentûm; Perjurus, Pestis; tamen tibi à me nulla est orta injuria.

A Bawd I am; Youth's Common Pest, 'tis known; Perjur'd; yet wrong by me Thou hast had none.

It was no ill Plea then that Nabis (in Livy) made, when his tyranny was objected against him by Quintius Flaminius, Concerning the name Tyrant, I answer, That whatsoever I am, I am the very same I was when thou, O Titus Quintius, entredst in League with me. And by and by, These things, whatsoever they are, I did when ye contracted friendship with me. Whereunto he presently adds, Si quid ego mut âssem, mihi inconstantiae meae; cum vos mutetis, vobis vestrae ratio reddenda est: If I had changed, I ought to have given the reason of my incon∣stancy; but seeing it is you that change, you ought to give the reason of yours. Not much unlike unto this is the Answer that Pericles in Thucydides gives unto his Subjects, Our Confederates we shall permit to enjoy their own freedom, and to live by their own Laws, if they did so when they first entred into League with us.

IV. Fear not to be objected, if the Promiser were not himself af∣frighted.

Another Objection may be made, which I have heretofore hinted* 1.618, namely, That he that by fear hath extorted a promise, ought in Justice to release the Promiser; as having by his injustice damnified him, that is, by such an act as is repugnant both to the nature of humane Liberty, and to the nature of the act it self; for all promises that bind ought to be free. This, though in some cases true yet, is not to be extended to all promises that are made to Thieves; for that the Promised be bound to free the Promiser, it is requisite that he to whom the promise was made should have extorted the promise by an unjust fear: But in case a man shall come and promise to pay the ransome of his Friend, and thereby deliver him out of Bondage, he is bound to perform it; because there was no impression of fear upon this man, who in the behalf of his Friend came voluntarily to make this Contract.

V. What if the promise were bound by Oath.

Whereunto we may add, That he that is compelled, even by an unjust fear, to make a promise, may be obliged to perform it, if he confirm that promise with an Oath; for thereby (as we have shewed before) he stands bound, not unto men only, but unto God, against whom no exceptions can be admitted. But true it is notwithstanding, That by such a sole promise, though confirmed by Oath, the Heir of the Promiser stands not obli∣ged; for those things only descend to the Heir which by the original Right of Domini∣on may pass from man to man in ordinary Traffick. But those things that are due unto God, cannot, as such, be included amongst these. Moreover, here we must again re∣peat what we before delivered,* 1.619 That if a man do haply break his faith with a Thief, whe∣ther sworn or unsworn, he shall thereby incur no punishment amongst other Nations: For generally all Nations, in detestation of these men, whom they account as common ene∣mies to humane Society, are pleased to connive at whatsoever is (though unjustly) done a∣gainst them.

VI. This applied to Subjects that make War.

But what shall we say concerning the War that Subjects make against their King, or a∣gainst such as have the Supreme Authority? Though they may haply have a cause not in it self altogether unjust, yet that they can have no Right to act by force against their Prince, we have elsewhere shewed* 1.620. But yet it sometimes so happens, That either their Cause is so noto∣riously unjust, or their obstinacy in resisting so great, that it may be severely punished. But yet, if they be treated with as Rebels or Traitors, and therein any promise made unto them, the punishment though justly due for their Treason ought not to be pleaded in Bar to the performance of that promise. For such was the piety of the Ancients, that they durst not break their faith, no not with their very Slaves; as may appear by the Lacedemonians,* 1.621 who were generally believed to have been justly punished for putting their Tenarensian Pri∣soners to death, contrary to their Covenants. And it is likewise observed by Diodorus,* 1.622 That the faith given to Slaves in the Temple of the Palici was never broken by any of their Lords. Neither will any exceptions of fear be allowed of in this Case, if the faith given be by Oath confirmed: as we may collect from M. Pomponius, the Tribune of the People,* 1.623 who being bound by Oath, punctually performed what he had, though compelled by fear, promised to L. Manlius.

VII. Of Promises made by So∣vereign Prin∣ces unto their Subjects.

But a greater difficulty than any before mentioned may arise from the Legislative Power, and from that supereminent Right of Dominion which every City hath over the things of their Citizens, and which is exercised in its name by him who hath the Supreme Power therein: Which supereminent Right, if it extend it self to all that is the Subjects, why should it not likewise unto that Right which ariseth from any promise made in War? Which being granted, then it should seem that all such Promises and Agreements may be null'd, and so all hopes of concluding a War, unless by Victory, would be lost. But on the contrary, we must observe, That this superlative Right is not fit to be put in execution promiscuously, at all times; but so far forth as it is commonly expedient to the preservati∣on of the publick safety in a Government not Tyrannical, but Civil, yea even Regal. But for the most part it is commonly expedient, That all such Promises and Agreements should be fulfilled. Very apposite to this purpose is that which we have already written concern∣ing the defence of the present Government; adding thereunto, That where the publick safety requires that this Sovereign Right should be made use of, satisfaction ought to be given out of the publick to such particular persons as shall be thereby damnified, as shall be hereafter more fully explained.

VIII. That such pro∣mises may be confirmed by the Oath of the City.

Moreover, Agreements may be confirmed by Oath, and that not by the King or Senate alone, but by the whole Body Politick; as Lycurgus bound the Lacedemonians, and Solon the Athenians, by Oath to observe the Laws they had given them. And lest the change of Citizens should in time relax the binding power of this Oath, (and so at length it be forgotten, or left arbitrary) this Oath may be every Year renewed; which if done, the Citizens could by no means recede from their Engagements, no though it were for their publick profit. For a City hath power to grant away even what is her own. Now the words of the Oath may be so clear and so full as not to admit of any exceptions, Lege Legem, quae te jurejurando obstrictum tenet; Read over your own Law,* 1.624 saith Valerius Maximus to the City of Athens, whereunto ye stand bound by your Oath. And such Laws the Romans held as sacred, because the people of Rome were obliged by Oath to keep them, as Cicero testifies. We find in Livy a very pertinent Discourse as to this matter,* 1.625 though of it self more obscure, where (as the opinion of the best Expositors of the Laws) he asserts, That the Tribunes of the people were sacrosanct, that is, so holy, that they could not be injured without perjury. But so were neither the Aediles, Judges, nor Decemviri; and yet to injure either of these was punishable by the Laws. The ground of which difference was this, Be∣cause these latter were thought sufficiently defended by the severity of the Laws alone. But that which was in the last place enacted by the people was most inviolable, yet whilst the Law remained in force, no man could pretend to a Right to act contrary to the Laws. But that which defended the Tribunes, besides the Law, was the publick Religion of the Romans; for they were all bound by a solemn Oath not to offer violence unto them, which they that took, could not break without giving a publick scandal to their Religion. This light we receive from a place in Dionysius Halicarnassensis, where it is thus recorded, Brutus calling the Assembly together, proposed it to the People of Rome, That the Tribunes of the People might thenceforth be rendred inviolable, not by the Laws only, but by a publick Oath, whereunto all the People gave consent. And hence it was that this Law was called sacred.* 1.626 And therefore that fact of Tiberius Gracchas in deposing Octavius from the Tribuneship, (alledging that the Tribunitial Power had its sanctimony from the people, but not to be exercised against them) was much condemned by all honest men. And therefore, as I have said, as well a City as a King may be bound up by Oath in such Agreements as they make with their own Citizens or Subjects.

IX. Or if the pro∣mise be made to a third per∣son, for the Subjects—

But yet farther, A Promise or Agreement made by Princes or States to their own Sub∣jects shall be valid, being made to a third person, who hath given no cause of fear. But wherein and how far forth that third person may stand interessed in that promise, being one of the niceties of the Roman Law, we shall not here search into. For naturally it concerned all men to provide (as much as in them lyes) for the safety of others. Thus we read, That King Philip having made his Peace with the Romans, bound himself by promise, Not to revenge himself on those Fugitives, who during the War had sided with the Romans.

X. How the pub∣lick State may be changed.

But yet possible it is, as we have elsewhere proved, that a State may sometimes become mixt; and as from an Absolute Monarchy it may pass into an Absolute A∣ristocracy or Democracy, so also it may by Covenants and Agreements be trans∣ferred from any one of these simple, into one mixt, of any two, or of all. So as they which before were Subjects, may begin to settle the Government in themselves, or at least some part thereof, even with a liberty to defend and protect their own Party by Force of Armes.

XI. That fear in a Solemn War, by the Law of Nations, is no Just Excepti∣on.

But a Solemn War, that is, such a War as is on both sides publick and denounced, a∣mong many other things which (by that Right which we call external) it peculiarly enjoys, hath this also, That all promises made in that War, or that conduce to the concluding of it, are so firm and valid, that though they were caused through a fear unjustly brought, yet can they not be null'd or made void without the consent of him to whom they were made; because, as many other things, though in themselves not altogether just, yet are by the Law of Nations reputed so, so fear, though it be in either side unjustly caused, yet shall it in such a War by the same Law be accounted just: Which unless granted, it would follow that such solemn Wars, which are indeed but too frequent, could be neither moderated nor ended; both which are very expedient for the conservation of Mankind. And this we have reason to believe is that Right in War which Cicero tells us is to be kept even with Enemies,* 1.627 to whom also it was elsewhere said, That there were some Rights which an Enemy might retain, though in War, namely, Not such only as are allowed of by the Law of Nature, but some such also as are introduced by the consent of Nations. Neither doth it hence follow, That he who in an unjust War hath extorted any such thing may without the breach of piety or honesty retain what he hath thereby got, or compel another to perform such a promise sworn or unsworn. For internally, and in the very nature of the thing it still remains unjust. Neither can this internal injustice of the act be otherwise removed than by the new and absolutely free consent of the Pro∣miser. Again,

XII. This to be understood of such a fear as is allowed by the Law of Na∣tions.

Whereas that fear is said here to be just which is caused in a Solemn War, it is to be understood of such a fear as the Law of Nations doth not disallow: As for example, A promise wrested from an Ambassadour that is taken Prisoner, shall not yield the least advantage to him that extorts it; as Mariana testifies. So in case any thing be extorted through the fear of Ravishment, or through any other the like terrour or affrightment, contrary to our faith given; this ought to be judged by the Law of Nature, because the Law of Nations takes no cognizance of any such fear. Again,

XIII. That faith is to be kept with the perfidious:

That faith ought to be kept with such as are notoriously perfidious, we have in a more general Treatise already proved: Which also we may learn from S^t Ambrose, which with∣out doubt reacheth even unto such enemies as are altogether faithless. Such as the Cartha∣ginians were unto the Romans, who notwithstanding kept their faith inviolably with them. For,* 1.628 as Valerius Maximus well observes, The Roman Senate regarded not what the Cartha∣ginians deserved, but what in honour became the People of Rome; which is the Testimony that Salust gives of them, In all the Wars, saith he, between Rome and Carthage, though the Carthaginians, as well in times of Peace as during their Truces, committed many outrages, yet would not the Romans upon any provocation permit that the like should be done unto them. And concerning that fact of Sergius Galba, who, in revenge upon the Portuguese for so often breaking their League with him, first deceived them with a new League, and then slew eight thousand of them; Appian gives this Answer, Perfidiâ perfidiam ultus, contra Roma∣nam Dignitatem, Barbaros imitabatur; In revenging one treachery with another, he wounded the Majesty of the people of Rome, imitating therein the Barbarians. For which he was af∣terwards worthily accused by Labo, a Tribune of the People, whereof Valerius Maxi∣mus gives his opinion thus, Is was not equity, but compassion, that pleaded in that Cause: For that absolution which his own innocency could not challenge, was given to his innocent Babes: which also is confirmed by Cato, He had certainly died for his treachery, had not his own tears, and the innocency of his Children, procured his pardon.

XIV. But not if the Condition be not perform∣ed, or if either Party stand not to the Agree∣ment:

But this also we may observe, That there are two ways whereby a man, though he perform not that which he promised, yet may avoid perfidiousness, as namely, If the Condition be not performed whereupon that promise was grounded, or if some other com∣pensation be made for it; for want of the Condition the Promiser is not really discharged: But it will appear by the event, That there had been no obligation but what was contract∣ed upon Condition; therefore that Condition being not performed, there needed no dis∣charge. Whereunto we may refer another Case, namely, If the other do not perform that which he was first bound on his part to fulfil. For the particular Heads of one and the same Agreement seem to be complicated each with other in the manner of a Condition, as if it had been thus exprest. Thus will I do, if you do so or so, which he hath promised. Wherefore Tullus in his Answer to the Albans, calls the Gods to witness, Whether of the two Nations were the first Aggressors; praying earnestly, That all the miseries of the War might befal that Nation. For as Ʋlpian notes, He breaks not the League, who there∣fore renounceth his Associates, because they do not perform some Articles, whereupon the League was at the first made. For which Cause, where it is otherwise intended, it is usually thus exprest, That if either Party shall transgress in this or that Article, yet shall the rest re∣main firm and inviolable.

XV. Nor when there is other∣wise a just compensation made:

The original of compensation or recompence we have elsewhere declared* 1.629, namely, When we cannot otherwise recover either what is our own, or what is justly owing unto us, we may take away from him that either detains it or owes it the full value, thereof in any thing else; whence it follows, That whatsoever is actually in our possession, whe∣ther it be Corporeal or Incorporeal, we may much more lawfully detain and keep. Whatsoever ther••fore it is that we have promised, it is in our power not to perform; if it be of no greater value than that which being once ours, he to whom the promise was made injuriously keeps from us. Comparatio nulli invidiosa est,* 1.630 ubi aut Gratiae aut Injuriae communis est ratio; That comparison is to no man odious, wherein a common regard is had to either courtesie or injury. Thus in a wager at Law, saith Seneca,* 1.631 the Debtor doth sometimes cast the Creditor, when he hath upon some other account got more from him than his Debt a∣mounted unto. For between the Creditor and the Debtor only the Judge sits as an equal Arbitra∣tor, who may say to the Creditor, It was thy money that thou lentest, how camest thou then by the Land which thou possessest, but never boughtest? wherefore upon a just valuation, Thou that camest in a Creditor, Depart hence a Debtor.

XVI. Although due by another Contract:

The Case is the same if he with whom we have to do owes me as much upon any o∣ther Contract, which I cannot otherwise recover but by detaining that which I have promised to him. In Courts of Justice there are, saith Seneca* 1.632, some separate Actions, neither is the form confounded. But those Precedents, as it is there said, are con∣tained within certain Laws, which are necessarily to be followed. One Law is not mix∣ed with another. We must walk as every Law doth lead us. But the Law of Na∣tions admits of no such distinctions, namely, Where there is no other hopes of re∣covering what is our own.

XVII. Or some da∣mage done.

The like may be said where he that exacts a promise hath damnified the Promiser to the value of the thing promised. Thus the same Seneca* 1.633, The Farmer is not bound to his Landlord, though his Lease be not cancelled, in case he wilfully trample down his Corn, and cut down his Fruit-trees; not because he hath received what he agreed for, but because he hath hindred his Tenant from receiving the Fruits of his Grounds, whereby he should have paid his Rent. Where also he subjoins another Example, Pecus abegisti, Ser∣vum occidisti; Thou hast haply driven away his Cattel, or slain his Servant. And a little after, It is lawful for me to compare the good that any man doth me, with the hart that he doth me; and thereby to pronounce my self his Debtor, or him mine.

XVIII. Or for some punishment justly due.

Lastly, Whatsoever also is due to the Promiser by way of punishment, may be em∣ballanced with what he hath promised; which Seneca in the same place thus clearly illustrates, Beneficio Gratia debetur, injuriae ultio; Thanks is due for a courtesie, revenge for an injury: If therefore I pay him no thanks, nor require that punishment from him that I lawfully might; there is nothing at all due to either, for the one acquits the other. And anon, By comparing the good turns I receive with the wrongs I receive,* 1.634 I shall easily discern whether I am indebted unto him, or he to me.

XIX. How these take place in War.

But as whatsoever is contended for by a wager at Law cannot whilst the Suit de∣pends be counterballanced against that which is promised, whether it be the thing sued for, or the costs and damages sustained in the Suit; so neither can the injuries that first occasioned the War, nor any of the losses or expences which are usually through the licence in War caused, be recompenced as long as the War lasts. For the very nature of this business, lest nothing at all be done, shews that set∣ting a part on either side the controversies of the War, they are agreed. For other∣wise there can be no Agreement so firmly made, that may not be avoided. Where∣unto may that of Seneca not unfitly be applyed,* 1.635 Our Ancestors would admit of no excu∣ses

at all for the breach of promises, that so they might teach us that our faith was altoge∣ther to be kept: For better it was not to admit of some excuses, though just, from a few, than to encourage all to make what excuses they would for the breach of their faith. But what things are those which may countervail that which is promised? Surely in the first place, Whatsoever by any other Contract made since the War is owing unto us by him to whom our promise was made, or whatsoever damages we have sustained by him in the times of Truces, or in case the Persons or Rights of Ambassadors have been by him violated, or, in brief, if he have done any other thing which between E∣nemies is not justifiable by the Law of Nations, where this also is to be understood, That the satisfaction be made between the same persons, and that the Right of no third person be thereby injured; but yet with this allowance, That the Goods of Citizens may stand obliged for the Debts of their own City, as those of Subjects may for the Debt of their Prince; as we have already shewed. Whereunto we may add,* 1.636 That it is the sign of a generous Soul strictly to observe his faith in Leagues given, notwithstanding all provocations to the contrary by injuries received: Upon which account it was that that wise Indian Jarchas so highly commended that King, who being much injured by his Confederates, yet would never break his faith given, saying,* 1.637 Tam sancte se jurâsse, ut alteri ne post acceptam injuriam nociturus esset; That the Oath he had taken was so sacred, that he durst not injure him to whom he had given his faith, though he were sufficiently provoked. Now look what other Questions usually arise concerning our faith given to Enemies, may almost all of them be resolved by applying them to those Rules heretofore prescribed, concerning the Obligatory Power, as of Promises in general, so of those special promises made by Oaths, Leagues, Spon∣sions,* 1.638 and of the Right and Obligation of Kings, and concerning the interpretation of such promises as are ambiguous. But yet notwithstanding for the better use of what hath been already said, and for the clearing of any other doubts which may happen to a∣rise, it shall not at all be troublesome to me briefly to unfold such of these special Cases as are most notable, and as do most frequently occur.

CHAP. XX. Concerning the publick Faith, Treaties, Lots, set Combats, Arbitrements, Surrenders, Hostages, Pledges.

• I. The division of Faith among Enemies in or∣der to that which follows.
• II. In Monarchies, it is in the Kings power to make Peace.
• III. What if the King be an Infant, Mad, a Prisoner, or an Exile.
• IV. In other Governments this power is in the major part.
• V. How an Empire, or a part of it, or the goods of a Kingdom, may be firmly alie∣nated to obtain Peace.
• VI. How far by a Peace made with a King, his People and Successors may stand bound.
• VII. That what is the Subjects, may in Peace be granted away for the publick good, but with condition of repairing damages.
• VIII. What may be said of things already lost by War.
• IX. No distinction here between things got by the Civil Law, and things got by the Law of Nations.
• X. With Foreigners, what a King doth, is held to be for the publick good.
• XI. A general rule whereby to interpret Ar∣ticles of Peace.
• XII. In doubtful cases it is credible, that it is agreed, that things should remain in the state they are at present: how this is to be understood.
• XIII. What if it be agreed, that all things shall be restored to the condition they were in before the War began.
• XIV. Then they who being before free, and had voluntariy enslaved themselves, were not to be made free.
• XV. That damages occasioned in War, if left dubious, are presumed to be forgiven.
• XVI. But not those, which before the War were due to private men.
• XVII. Punishments also before the War pub∣lickly due, if left doubtful, are believed to be remitted.
• XVIII. What is to be said concerning the Right that private men have to require punishment.
• XIX. That Right which before the War, though publickly claimed, was controverted, is easily believed to be forgiven.
• XX. Things taken after Peace made, to be restored.
• XXI. Of agreements, whereby things taken in War are to be restored: some certain rules.
• XXII. Together with the things, the fruits and profits are to be restored.
• XXIII. Concerning the names of Countries.
• XXIV. Concerning the relation that is had to some precedent agreements.
• XXV. Of delay.
• XXVI. Where the words are doubtful, the interpretation must be made against him that gives Laws.
• XXVII. Distinction must be made between the giving of a new cause of War, and the breaking of Peace.
• XXVIII. How a Peace may be broke, by do∣ing contrary to that which is presumed to be in every Peace.
• XXIX. What if we be invaded by Associates.
• XXX. What if by Subjects? and how their fact may be judged as approved.
• XXXI. What if Subjects engage under another Prince.
• XXXII. What if Subjects be invaded? ex∣plained by distinction.
• XXXIII. What if Associates? who are like∣wise distinguished.
• XXXIV. How a Peace may be broken by do∣ing contrary to that which was said in the Peace.
• XXXV. Whether any distinction is to be made between the Articles of Peace.
• XXXVI. What if to the breach of the Ar∣ticles there be some punishments added.
• XXXVII. What if we are hindred by an un∣avoidable necessity.
• XXXVIII. The Peace shall stand firm, if he that is injured be willing thereunto.
• XXXIX. How a Peace may be broken, by do∣ing that which is contrary to the special na∣ture of every Peace.
• XL. What under the name of friendship may be comprehended.
• XLI. Whether it be enough to break friend∣ship, to receive Subjects and Exiles.
• XLII. How War may be ended by lots.
• XLIII. How by a set combate, and whether lawful.
• XLIV. Whether the fact of the King do in this case oblige the People.
• XLV. Who is to be judged the Conquerour.
• XLVI. How War may be ended by Arbitre∣ment, and how it must be understood, if it admits of no appeal.
• XLVII. Arbitrators in cases doubtful, must be so understood as bound to do Right.
• XLVIII. That Arbitrators are not to deter∣mine of possessions.
• XLIX. How far forth the force of a pure de∣dition extends.
• L. What a Conquerour ought to do as to such as surrender.
• LI. Of a surrender upon conditions.
• LII. Who may and ought to be given in Hostage.
• LIII. What Right is given against Hostages.
• LIV. Whether an Hostage may awfully e∣scape

• by flight.
• LV. Whether an Hostage may be lawfully detained upon any other account.
• LVI. Ʋpon the death of him, for whom an Hostage is given, the Hostage is to go free.
• LVII. The King dying who sent the Hostage, whether the Hostage may lawfully be de∣tained.
• LVIII. Hostages may sometimes be principally obliged, and that one of them is not bound for the fact of another.
• LIX. What obligation lies upon pledges.
• LX. When the Right of redemption of things engaged, is to be judged as lost.

I. The Division of Faith in or∣der to what follows.

ALL agreements between Enemies depend upon Faith, either exprest or under∣stood. Faith exprest is either publick or private. Publick, is either that gi∣ven by supreme, or that given by subordinate power. That given by the su∣preme power, either puts an end to the War, or is of some force, the War continuing. Among those things that conclude a War, some things are looked at as Principals, and some Accessaries. The principals are those very things that finish it, either by their own act, as the Articles of agreement; or by consent on both sides, that it shall be deter∣mined by some other thing; or by Lots, by the event of some Combats, the award of Arbitrators: whereof that by Lots is altogether fortuitous, the other two moderate the case by the strength of the mind, or of the body, or by the discerning faculty.

II. The power to make Peace is in the King if the Govern∣ment be Kingly.

They that have power to begin a War, have also a power by Articles of agreement to to end it* 1.639, for every man is the best moderator of his own affairs; whence it follows, that in a War on both sides publick, the power of making Peace belongs to them who are entrusted with the Supreme Authority, as in a Government truly Monarchical to the King, so as he be no ways disabled to exercise that Authority.

III. What if the King be an In∣fant.

For in case a King be not at Years of discretion (which in some Kingdoms is deter∣minable by Law* 1.640, but in others by probable conjectures) or if he be not of sound mind, he is not capable of making Peace. The like may be said of a King that is in Captivity; in case that Kingdom had its first rise from the suffrages of the People, it being incredible that the People should ever consent to entrust their Government into such hands, as were not at liberty to exercise it; wherefore in this case also, though not the full power, yet the exercise of that power, and as it were the Guar∣dianship of it is in the people, or those whom the people shall surrogate in their stead. Thus when Rodolfus the Palatine fled through fear into England, and when the Bishop of Mentz was driven out of his Territories, by the Bishop of Tryers; neither the one nor the other lost their Electorship. But yet as to those things that are privately his own, a King though a Captive may make any Contract good, after the example of those things that we shall say concerning private agreements. But what if the King be an exile (as Camillus was when he lived amongst the Vejans of whom Lucan writes thus,

Vejos habitante Camillo, Illic Roma fuit.)

is it in his power to make Peace? yea surely, if it appear that he lives free, obnoxious to none; for otherwise the condition of an exiled King is not much different from that of another Captive, a banished man being but a Prisoner at large. Thus Cicero speaks con∣cerning Regulus, that he refused to give his opinion in the Senate; alledging, that so long as he stood bound to his Enemies by Oath, he was uncapable of voting as a Senator.

IV. In other States it lies in the major part.

But where the Supreme Authority is seated, either in the Nobles or in the People, it is in the power of the major part of them to make Peace: The Decrees either of the publick Senate in the former, or of the Citizens in the latter, being to be pro∣nounced by such as by use and custome have a Right thereunto, according to what we have elsewhere delivered.* 1.641 And therefore what is thus agreed upon shall oblige the whole, yea, even those that dissented from them. Thus Livy* 1.642, Whatsoever is once upon a full debate decreed, is to be defended by all, even by those who had been before against it. Wherewith accords that of Dionysius Halicarnassensis, Parendum est his quae pars major de∣creverit; Whatever the major part thinks fit, must by all be obeyed. So likewise Appian, Omnes decreto obsequi tenentur, nulla admissa excusatione; What is so decreed is by all men to be observed, no excuse being admitted of to the contrary. With whom agrees Pliny, Quod pluribus placuisset, cunctis tenendum; What pleaseth the greater part obligeth all: But those whom Peace obligeth, it also profiteth; Iisdem & volentibus prodest.

V. How an Em∣pire or any part thereof may be aliena∣ted for Peace.

Now let us see what manner of things they are that are subject to such agreements; most Kings now a days, because they hold not their whole Kingdoms, nor any part of them in propriety, but in respect of their fruits and profits only, cannot by any Contract or Agreement alienate them* 1.643. Yea, and before they receive that great charge of the Empire upon them (during which time the People are as yet above them) all such acts of alienating the Kingdom or any part thereof, may by a publick Law for the future be made absolutely void, so that as to what concerns That, they shall not be

binding at all. And credible it is that the People were generally thus minded, Ne alio∣qui si ad id quod interest salva esset actio contrahenti, subditorum bona pro debito regis caperentur; Lest otherwise if as to that which is so provided against the action should hold good to the per∣son contracting, the goods of the Subjects might be taken for the Debt of the King: And con∣sequently this caution of not alienating the Kingdom would be in vain. But that the whole Empire may be firmly alienated, the whole body of the People must yield their consents, which may quickly be done by their Representatives, which are the three Or∣ders or States of a Commonwealth; namely the Clergy, Peers, and the Commons: But that any part of the Empire may be firmly alienated, a twofold consent is requi∣site; first of the whole, but more especially of that power which is to be alienated, which cannot be severed from the body whereunto it grew against its will. This was the French Kings Plea why he would not deliver Burgundy as he had upon his Oath a∣greed and promised. But yet in a case of extreme necessity, and otherwise unavoid∣able, That very part may firmly conveigh away the Government over themselves unto any other without the consent of the People; because credible it is, that when that so∣ciety was instituted, this power was reserved. But in Kingdoms that are Patrimonial, what should hinder a King from alienating his Kingdom I know not; but yet such the case may be, that such a King hath no power to alienate any part thereof, as if he received the whole as his propriety upon this condition that he should not divide it. But as concerning those things which are called the goods of the Kingdom, these may also become the Kings Patrimony two ways, either as separable from the Kingdom, or as inseparably united unto it: if this latter way, they may be transcribed,* 1.644 but not un∣less with the Kingdom; if the former, they may be alienated without it. But such Kings, whos•• Kingdoms are not patrimonial, can hardly be permitted to alienate the Goods of the Kingdom, unless it evidently appear by some Primitive Law, or by a continued and uninterrupted custome that they may do it.

VI. How far the people and successors are obliged by a Peace made by the King.

But how far forth the promise of a King shall bind his Subjects and Successors, hath already been declared* 1.645, namely, so far as the power obligatory is comprehended in that Government, which should be neither infinite nor impaled within in too narrow bounds, but to extend so far only as in probable reason it shall be found convenient. But in case the King be absolute Lord* 1.646 over his People, as having at his own charge con∣quered him, and so holds them under a Government merely Despotical and not Civil; or if he have gained the Dominion, not over their persons but over their things, as Pharaoh bought all that the Aegyptians had, for Corn; or as they that admitted of Stran∣gers into their Houses, to whom they prescribe what Laws they please: if, I say, the Government be thus absolute, then it is another thing. For in this case, besides that Right which is regal, there is an access of another Right which makes that justifyable, which a bare regal power could not.

VII. What power a King hath over his Subjects goods to the making of Peace.

But here there usually ariseth another Question, namely, What Right Kings have o∣ver the Estates of private men in order to the establishing of Peace, as having no other Right to that which particularly belongs to his Subjects, than what he hath as a King. That the things belonging to Subjects are under the supereminent power of the Com∣monwealth, whereof they are a part we have already proved, so that that Common∣wealth, or he that exercises the supreme power in it, hath a Right to make use there∣of, either by even destroying them, or by alienating them, and that not only in a case of extreme necessity, which is even between private men justifyable; but when it ex∣tends even to the good of the publick, which is always to be preferred before any pri∣vate mans, by the general consent of those who first entred into civil society: Which not∣withstanding is so to be understood, that the whole Commonwealth is obliged to repair the damages, that shall befal any of her Subjects or Citizens, by reason of any such spoil or alienation, out of their publick stock, or by a publick contribution; whereunto even he who hath sustained the loss, shall (if need be) pay his proportion. Neither shall that City or Commonwealth stand discharged from this obligation, although at present it be not able to satisfie it; for whensoever that City shall be enabled, this sleeping ob∣ligation may rise up against it.

VIII. But what if the things be al∣ready lost by War.

Neither can I here generally admit of the opinion of Vasquius, namely, that the City is not obliged to repair the damages of her Citizens sustained by the War, because such damages are by the licence of War permitted. For this Right of War hath only respect to the People of several Nations as we have elsewhere explained it* 1.647; and part∣ly to such as were in open hostility amongst themselves, but not to Citizens amongst themselves, who being mutually associated, and equally engaged in the defence of their City, should in equity esteem every mans to be the common loss. But yet doubtless, it may by the Civil Law be so ordained, that no Action shall lye against such a City for any damages sustained by the War, to the end that every man may be the more watchful and resolute to defend his own.

IX. No difference between things got by the Ci∣vil Law, and things got by the Law of Na∣tions.

Some there are that place a vast difference between those things which belong to Sub∣jects acco ding to the Law of Nations, and those things which are theirs by the Civil Law, gra ting a larger Right to the King in taking away these, without either cause or recompence; but not so in the former, but erroneously. For a Right of Dominion, however lawfully gained, hath always by the Law of Nature its proper effects; that is to say, that it cannot be taken away, unless it be for such causes as are naturally inhe∣rent in Dominion it self, or such as arise from some fact done by him that is the right owner.

X. What is done by a King, is taken by Fo∣reigners to be done for a pub∣lick good.

Now this care and inspection that the things of private persons be not alienated, unless it be for a publick benefit, appertains to the King and to the Subjects, as that of re∣pairing of damages doth to the City, and each particular Citizen: For the bare fact of the King, is sufficient to Strangers that contract with him, not only in respect of the presumption, which the Dignity of his person brings with it; but also in respect of the Law of Nations, which permits the Goods of Subjects to stand obliged by the fact of the King.

XI. A general rule for the inter∣preting of Ar∣ticles of Peace.

But as to the right understanding of the Articles of Peace, what we have said be∣fore, must here also be observed* 1.648, The more of grace and favour any Article contains, the more extensively it should be taken, and the more of rigour it hath, the more restrictively it should be understood. If we look at the bare Law of Nature, the greatest favour that can be granted, seems to be this, That every man should enjoy his own: wherefore where the Articles are ambiguous, such an interpretation should be admitted as may lead us to this sence, That he that undertakes a just War should receive what he fights for, together with his costs and damages; but not that he should get any thing more by way of punishment, for this savours of rigour which ought to be restrained. But because a bare acknowledgment of wrongs done, seldome procures a lasting Peace, therefore in Articles of Peace, such an interpretation should be admitted, as may according to the justice of War make the ballance on both sides even, which may be done two ways; either by an equal composure of all such things, as the Sword hath not as yet deter∣mined,* 1.649 according to the form of Ancient Right (which are the very words of Me∣nippus in his Oration, wherein he discourseth of the several sorts of Leagues) or o∣therwise, as the Greeks say, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, That every man should keep what he hath.

XII. In dubious ca∣ses it is to be believed that things should remain as they are.

Of which two ways of pacification, the latter, if the case be doubtful, is the rather to be believed; because as it is more facile, so it requires no alteration. Upon which that of Triphoninus seems to be grounded, where he saith, That in Peace such Cap∣tives only are to return by Postliminy, as are comprehended in the Articles of agree∣ment; as also where he saith, That Fugitives are not to be restored, unless it be so expresly agreed on, as we have already proved by irrefragable arguments. For by the Law of Arms we may receive such,* 1.650 and muster them among our own Troops: All o∣ther things by such an agreement remaining his that at present holds them; where the word [Hold] is meant of a natural not of a civil possession; for in War a possession in fact only is sufficient, neither is any other required. Fields (as we have already said) are then sopposed to be possest, when they are strongly secured by fortifications; for such as are for a while only encampt upon (as in Leaguers or Sieges) are not here to be re∣garded.* 1.651 Demosthenes in his Oration for Ctesiphon, saith, That Philip made hast to get into his possession what places he possibly could, as knowing that the Peace being con∣cluded,* 1.652 whatsoever he could get, he should keep; but things incorporeal cannot be kept, unless either by the things whereunto they adhere (as the services of Tenants that are annexed to Mannors) or by detaining the persons whose they are, that whilst in a Coun∣try that is their Enemies, they shall not be exercised.

XIII. Of the resto∣ring all things as before the War.

In that other kind of pacification, whereby the possession of things not yet determined by War are to be r••stor••d, we are to understand, That restitution is to be made to those who held the possession thereof last before the War began; yet so, that those pri∣vate men that were cast out, might lawfully appeal to the Judge for either injunction or vindication.

XIV. This reacheth not unto such as have volun∣tarily yielded themselves.

But if any free People do voluntarily subject themselves to either Party that were in Arms, this Article of restitution shall not extend unto them, because it was intended only to such things as were done either by force, fear, or otherwise by such kind of fraud as is not lawfully used but against Enemies. Thus the Peace being concluded among the Grecians, the Thebans detained Plataea, alledging, That they were possest there∣of neither by force nor treachery,* 1.653 but by the voluntary surrender of the Citizens. And in another place the same Author urgeth, That Plataea ought not to be restored because it submitted it self to the Thebans of its own accord.* 1.654 By the same Law Nisaea was detain∣ed by the Athenians. And the same distinction is used by Titus Quintius against the Ae∣tolians, who urging that the Cities of Thessaly might be set at liberty, was answered, That as to the Cities taken by force,* 1.655 that indeed was the Law; but the Cities of Thessaly did freely submit themselves to the Roman jurisdiction.

XV. Damages by War, if in doubt, are be∣lieved to be remitted:

If nothing else be agreed on, yet this in every Peace ought to be presumed, that no Action shall be commenced for damages done in War, which is also to be understood of such damages as are received by private persons; for these also are the effects of War. For where the cause of the War is doubtful, neither party will be willing so to a∣gree as to condemn themselves of injustice.

XVI. But not those done by pri∣vate persons, before the War began.

Yet must not those Debts, which were due to private men when the War began, be ac∣counted as pardoned: For these were not contracted by the Right of War, but forbidden to be exacted during the War; and therefore the War (which only hindred the exacting of them) being ended, the Debts remain in force as before. For although it ought not easily to be believed, That that which was a man's Right before the War should be taken away, (for for this cause chiefly, as Cicero observes,* 1.656 were Commonwealths and Cities at first instituted, That every particular man might be defended in what was his Right) yet ought this to be understood of that Right only, which ariseth from the inequality of things.

XVII. Punishments, if in doubt, though pub∣lickly due be∣fore the War, are presumed to be remitted.

But as to punishments, it is not so; for this Right of exacting punishments, so far as it concerns those very people or Kings that have contracted Peace, is therefore presumed to be remitted, lest if any old grudge should remain unforgiven, there could be no firm or lasting Peace. Wherefore even those injuries which are as yet unknown to the Party injured, are usually comprehended in general words; as that fact of the Carthaginians in drown∣ing some Roman Merchants was remitted by the Romans, before it was made known un∣to them; as Appian tells us. Optimae conciliationes quae iram & offensarum memoriam delent, Those are the best reconcilements that pacifie all anger,* 1.657 and leave nothing in the memory unremit∣ted. For as Isocrates very discreetly, In Pace non decet ante peccata exequi; After Peace is ratified, to revenge former injuries is unseemly.

XVIII. Not so as to punishments due to private men.

But there is not the same reason that this Right of exacting punishment should also be remitted by private men, because these may without War be judicially required; yet for∣asmuch as this Right is not so properly ours, as that which proceeds from inequality, and that the very exacting of punishments argues somewhat of hatred; therefore any flight in∣terpretation of words will suffice to ground our conjectures, that this also was intended to be remitted.

XIX. That Right w^ch though pub∣lickly claimed before the War, but con∣troverted, is presumed to be remitted.

Now whereas we said, That the Right which we had, before the War ought not easily to be believed to be remitted, this holds very true as to that Right which belongs to private men. But as to that which belongs to Kings and Nations, it will be more easily granted, if the words will but afford us whereupon to raise any probable conjectures to that purpose; especially if it were not a clear, but a controverted Right that was in Debate. For to be∣lieve that to be done whereby all occasions of a new War may be prevented, is generous; because, as the same Dionys. Halicarnessensis excellently observes* 1.658, Non tam cogitandum est de sarcienda in praesens amicitia, quam id curandum ne Bello iterum implicemur; neque enim ad diffe∣renda, sed ad auferenda mala convenimus: We are not so much to consider how to piece up a broken friendship for the present, as how to provide that we be not again intangled in the same War hereafter. For our main design in this Treaty is not to put off the miseries of War, but to take them quite away. Which last words are borrowed from Isocrates.* 1.659

XX. Things taken after the Peace is made, are to be restored.

The Peace being once concluded and ratified, it is expedient that whatsoever is taken away afterwards must be restored; for from thenceforth all licence of War is taken a∣way.

XXI. Some cautions concerning the restoring of things taken in War.

But among those Articles that concern the restitution of things taken in War, those in the first place will admit of a larger interpretation that are mutual, than those that con∣cern one Party only; and next, those that respect Prisoners are to be construed with more allowance of favour than those that respect things: And among those that respect things, those that have relation to Lands ought to be more favourably understood than those that relate to Moveables; and even among these, such as are in the possession of the Common wealth than those in the possession of private men.* 1.660 And among those Articles that com∣mand the restitution of things in the possession of private men, those are to be taken in the larger sense that are possest under a gainful than those under a chargeable title, as things bought with our money, and things held in Dowry by Marriage.

XXII. The profits re∣stored with the things.

To whomsoever any thing is granted by Articles of Peace, to him also is granted all the fruits and profits thereof, from the time of that concession, but not before; which Augustus justly defends against Sextus Pompeius, who having Peloponnesus granted unto him, claimed all the Tributes that were in Arrears for some years past, before the time of that Grant.

XXIII. The names of Countries.

The names of Countries are to be taken, as they are at present used, not so much by the common people, as by such as are learned; for by such only are these Affairs ne∣gotiated.

XXIV. Reference to some former Agreements.

The aforesaid Rules are of frequent use, as often as reference is had to some precedent or ancient Agreement, for so often the Qualities and Conditions, exprest in that Agree∣ment,

are supposed to be rep••a••••••.* 1.661 And he shall be deemed to have performed his Agree∣ment, who was willing to have performed it, had he not been hindred by another, in whose power it was to obstruct the performance of it.

XXV. Of delay.

But whereas some are of opinion, That excuses may be admitted for some short delay in the performance of an Agreement, this holds not true, unless that delay be occasioned by an unexpected and unavoidable necessity. That some of our Canons do seem to favour suth purg••tions, is no wonder; seeing that it is their design to perswade Christians to such things as promote mutual Charity. But in this Question that concerns the interpreta∣tion of Agre••ments, we enquire, not what is best, no nor what either piety or Religion require of us but, what we may lawfully be compelled unto. All which is to be deter∣mined by that Justic•• 〈◊〉〈◊〉 w•• call external.

XXVI. The interpre∣tation of words doubtful ought to favour the weaker.

But where the words w••••l b••a•• a double sense, that interpretation is most to be favour∣ed which makes against him t••at imposeth Laws; because he is usually the most potent Party. (The power, saith Hannibal, is in him that gives, not in him that demands Condi∣tions of Peace.) As in other Contracts that are doubtful, the interpretation ought to favour the Buyer; for the Seller may blame himself that he did not fully express himself. But the other, receiving Conditions in words that will admit of divers sences, hath a Right to accept of what is offered in that sense which is most favourable to himself. Tua merx,* 1.662 tua judicatio est, saith Plautus; It is in him to set the price that ownes the Goods. In War, he prescribes first that is most powerful; but in demanding Conditions, he first speaks that is the weaker. So Sulla in Plutarch, Eorum est prius loqui qui opus habent Pace; Victori satis est tacere: Let them speak first that stand in need of Peace; it is enough for the Conquerour to be silent.

XXVII. Great diffe∣rence between giving cause of a new War, and breaking the Peace.

It it also frequently disputed when a Peace may be said to be broken; for it is not one and the same thing to give a cause of War, and to break a Peace. But between these two the difference is great, as well to require punishment from the Delinquent, as to vindicate the Faith of him against whom the offence was committed in other matters. Now a Peace may be broken three several ways, first, By doing that which is contrary to all Peace; se∣condly, In doing contrary to that which is plainly and expresly said in that Peace; thirdly,* 1.663 In doing contrary to that which from the nature of every Peace ought to be understood.

XXVIII. The first way of breaking Peace.

First, The Peace is broken when that is done which is contrary to all Peace; as when we are invaded by Force of Armes, there being no new cause of War; which if with any probability it may be alledged, better it were so to understand it as if the War were sim∣ply unjust, than that it should be both unjust, and also treacherous: Pacem rumpunt non qui vim vi arcent,* 1.664 sed qui priores vim inferunt; They break not the Peace who repel force with force,* 1.665 but they who first offer violence. Therefore Ammianus, speaking of the Romans, saith, That they purposely gave back, because they would not be thought the first Aggressors; yet after∣wards,* 1.666 being urged thereunto by necessity, they gave Battel willingly. So likewise Procopius, in that Oration which Armenius makes to Cosroes, They, saith he, are not always to be accounted the Peace-breakers that are first in Armes, but they who during the League, are found treache∣rous to their Confederates.* 1.667 Thus also do the Moors in Procopius, They break not their League, who being first injured, and publickly complaining thereof (in vain) fly for succour unto others; but they who first wrong those whom they owne as their Associates: Neither do they make God their Enemy, who taking nothing with them but their own, fly unto others for protection; but they who invading other mens Rights do inforce them into War to defend their own. This being granted, let us now examine by whom and upon whom, an invasion being made, the Peace is dis∣solved.

XXIX. What if we are invaded by the Associates of those that are at Peace with us.

There are some of opinion, That if they that shall forceably invade us were but their Associates, with whom we have made Peace, that Peace is broken. I deny not but that such a League there may be made, not properly, That one man should be punished for the fact of another; but because that Peace seemed not to be fully and absolutely made, but ra∣ther under some Condition, partly potestative, and partly casual. And yet that such a Peace should be made, unless it evidently so appear, is scarce credible; because it is irregular, and inconsistent with the common design of those that make Peace. Wherefore they that do actually invade, being no ways assisted therein by others, they only, and not their As∣sociates, shall be judged the Peace-breakers; and against these it shall be lawful to make War.* 1.668 Contrary unto which, the Thebans did sometimes plead against the Associates of the Lacedemonians.

XXX. What if by their Subjects, and when it may be impu∣ted unto their Prince.

But what if they be Subjects that make such an invasion without publick Warrant or Au∣thority? Then we ought to consider whether such a fact of private men be publickly ap∣proved of. For the better understanding whereof, three things are requisite (as elsewhere we have declared* 1.669) First, The knowledge of the fact; secondly, A power to punish; thirdly, A neglect in them that could and ought to have done it. Their knowledge may easily be evinced, if the fact be publick and declared. A power to restrain or punish it is

to be presumed, unless it appears that they are Rebels. The neglect will appear by the space of time which Cities usually take to punish Malefactors; and such a neglect is e∣quivalent to a publick Command. Neither is that of Agrippa in Josephus otherwise to be understood, in saying, That the Parthian King had broken the Peace, for suffering his Subjects to march armed against the Romans.

XXXI. What if those Subjects fight under the command of another Prince.

Another Question is here usually started, Whether the Case be the same if Subjects take Armes, not by themselves but, under the Command of others. Surely the Cerites in Livy do thus excuse themselves† 1.670, That their Subjects took Armes without any publick Warrant or Commission from them. The like defence do the Rhodians make for them∣selves* 1.671. But that opinion which savours more of truth is, That neither should this be per∣mitted, unless it appear by very probable Arguments that it hath been otherwise customa∣rily done, as it is sometimes used now amongst us, in imitation of the ancient Aetolians, amongst whom it was accounted lawful, Ex omni Praeda Praedam sumere; To take Armes on either side. Which custom, saith Polybius, was of that force,* 1.672 That although they were not at War themselves, but their Friends or Associates only; yet it was lawful for the Aetolians without any pub••ick Decree of their Senate to list themselves on either side, and consequently to pillage both Parties. This is likewise the Testimony that Livy gives of them, They suffer their Youths without any publick Order to serve in the Wars, with their Associates, or against them: so that oft-times in two contrary Armies, the Aetolians serve as Auxiliaries on both sides. Thus the Aetrurians of old, although they denyed aid to the Vcjentes,* 1.673 yet if any of their Youths would serve them voluntarily, they would not hinder them.

XXXII. What if our Subjects be in∣vaded.

Again, the Peace is broken, not only when the whole Body of a State or Kingdom, but if any of its Subjects shall by force of Armes be invaded, unless there be some new Cause of War given. For for this Cause is every Peace made, That the Subjects on both sides might live secure; it being an act of the City or Commonwealth, in behalf of the whole, and of every of its parts; yea and although there were a new cause of War, yet by Peace it shall be lawful for every man to defend both himself, and whatsoever is his. By Armes to defend our selves against Armes, saith Cassius, is that Right which Nature hath given us: Which Right cannot easily be presumed to be renounced amongst Equals. But to revenge our own private Quarrels, or to recover by force what hath been taken away, is not lawful, unless judgment be first denied us: for this will admit of delay, but that of none. But if Subjects make it their continual trade of life to rob and pillage, contra∣ry to the Law of Nature, so that it be apparent that what they do is contrary to the will of their Governours, and that no Court of Judicature can reach to punish them, such as are Pyrates, Robbers, or the like; from these, as if they were surrendred up unto us, we may both recover our damages, and revenge our selves of them by force of Armes. But to do the like to those that are innocent for that cause, is to break the Peace.

XXXIII. If our Associ∣ates be inva∣ded, the Peace is broken.

Although we are not as yet invaded, yet if our Associates be, the Peace is broken; that is, if they be such as are comprehended in the Peace, as hath been already proved in the Case of the Saguntines† 1.674. This the Greeks in Xenophon alledge* 1.675, Omnes nos omnibus vobis ju∣ravimus; We have all of us sworn this Peace to all of you. Yea, though those Associates do not contract for themselves, but others do in their behalf, it is all one, in case it do suf∣ficiently appear that they have ratified it. But so long as this is uncertain, they are to be held as Enemies. But for the rest of Associates, that are not expresly comprehended in the Peace, and for our Kinsmen and Allies, that are neither Subjects nor nominated, the Case is otherwise. Neither can an invasion of them amount to the breach of Peace. But yet it will not hence follow, as we have elsewhere said, That it is unlawful for us in this Case to make War, but that the War so undertaken is not grounded upon the breach of Peace, but upon a new cause given.

XXXIV. The second way of break∣ing a Peace.

The Peace is also broken, as we have said before, by doing contrary to that which is expressed in the Peace: Where, under the word [doing] we are to comprehend the not doing of what we ought to do, and when we ought to do it.

XXXV. All the Articles of Peace are alike to be ob∣served.

Neither may we here admit of any distinction between the Articles of Peace, as if some were of greater concernment than others. For what is thought worthy to be inserted, is also thought worthy to be observed. Yet should goodness and common humanity prevail with all men, but especially Christians; to pass by small faults, but chiefly if repented of: For as the Poet speaks,

Quem poenitet peccâsse, pene est innocens.

He's almost guiltless who is penitent.

But yet to the end that the Peace may be the better preserved,* 1.676 to these of smaller concern∣ment, this Clause ought be added, That in case any of them should be broken, it should not amount so high as to the breach of the peace: But that such things should be first put

to reference, before it should be lawful to take Arms, which we find added to the Peloponnesian League recorded by Thucydides.

XXXVI. Or some pu∣nishment for them inflicted.

And I am clear of opinion that the same may be done in case some special punishment be inserted in those Articles; not that I am ignorant that such an agreement there may be, That it shall be in the choice of the Party injured, either to accept of some punish∣ment, or to null the Peace: But that the nature of the offence may be such, as re∣quires rather that,* 1.677 than this. Besides, what I have formerly said and proved by the Au∣thority of History is evident, That he that fulfils not his promise, being first failed, breaks not the Peace, for he is not bound but under condition.

XXXVII. What if hin∣dered by ne∣cessity.

But if the nonperformance of what is agreed unto be occasioned through necessity, as if the thing promised be taken away or perished; or if what was agreed to have been done, be by any chance or casualty rendred impossible, the Peace shall not be deemed as broken: For (as we have said before) Peace doth not usually depend on such conditi∣ons as are casual. But the other Party shall be at his choice, whether he had rather ex∣pect the performance of that promise hereafter, if there remain any hopes that it may be done though late; or receive to the value of the thing promised; or lastly, whe∣ther he had rather be discharged from some other thing mutually promised, and answe∣rable to that in this Article, and that is thought equivalent to it.

XXXVIII. Yet if the in∣nocent party will, the Peace is not broken.

It is certainly an argument of great integrity in the innocent party to preserve the Peace, even with those who have often broken their Faith as Scipio did with the Car∣thaginians, notwithstanding their many perfidious dealings with them; because no man can possibly cancel his obligation by doing contrary unto it: For although it be exprest that by such a contrary fact, the Peace shall be broken; yet is this so to be understood, that it shall ly in the choice of the innocent person, whether he will make such an ad∣vantage thereof or not.

XXXIX. The third way of breaking Peace.

Lastly we said, That the Peace may be broken by doing that which is contrary to the special nature of every Peace.

XL. What falls un∣der the notion of Friendship.

Thus those things that are done contrary to Friendship, do break that Peace that was contracted under condition of Friendship; for look what the duty of friendship may require from others, ought also to be performed by the Right of this agreement. And to this, though not to every Peace (for some there are that are not tyed up to this condi∣tion,* 1.678 as Pomponius observes) may we refer many of those dissertations, which Civilians handle concerning such injuries and contumelies as are committed without force of Armes, and particularly that of Tully, If after Peace made any thing be committed, it shall not be accounted as a bare neglect, but as a wilful breach; neither shall it be imputed to impudence, but unto perfidiousness. And even here also (as much as in us lies) we are to take care that we judge not of the fact invidiously; if therefore an injury be done against either our Allies, or Subjects, it shall not be imputed to him with whom we have made Peace, unless it be evident that it was done by his instigation. According to which natural e∣quity, do the Roman Laws proceed concerning such acts of cruelty as are done against Servants; as Adultery and Ravishment are imputed rather to acts of unbridled lust than of hatred; and so the invading of another mans Right is adjudged as an act of Cove∣tousness, rather than of Treachery. Cruel threatnings whether by words or signs, un∣less it be upon some new cause given, cannot consist with friendship, no more than can the erecting of new Forts and Bulwarks upon the Frontiers, when it is manifest that they are not so much for defence as offence; so also, the more than ordinary preparations for War, either by Sea or Land, if he with whom the Peace is made have ground enough to believe that they are made against none, but against himself.

XLI. To receive Ex∣iles whether contrary to friendship.

The reception of such particular persons as are willing to transplant themselves from one Princes Dominions to another, is no breach of Friendship, for this freedom is not only natural but benign; whereunto we may likewise add the receiving of Exiles: for as I have elsewhere proved out of Euripides* 1.679, over such the City or Prince that banish∣ed them, can have no power. What advantage is it, saith Perseus in Livy† 1.680, that every man hath power to banish himself, if there be no place left him to fly unto? And this Ari∣stides calls a right common to all mankind to receive persons banished* 1.681. Solon would not ad∣mit that any Strangers should be enrolled among his Citizens, but such as had been for ever ba∣nished their own Country, or such as came with their whole Families to Athens, there to exercise some Craft or Manufacture. Perseus in Appian pleads thus with the Romans, concerning his receiving of some fugitives, What I did, saith he, was justifiable by the common right

of all mankind, which you your selves also do sometimes: which likewise is usually confirm∣ed by mutual Covenants, as may appear by that Peace made between the Romans and the Persians. The like doth Strabo testifie of the Aradii, who whilst the Kings of Syria were at War among themselves, obtained this liberty, That they might receive what Fugitives they pleased, but send away none. But as to walled Towns, or any great Multitudes, that did constitute any one entire part of a City, that it is not lawful for any Prince to receive these, we have already proved. This was the cause of the War between the Persians and the Romans,* 1.682 because King Lazus at the sollicitation of the Consul had revolted to the Romans. Neither is it lawful to receive such as are bound, either by Oath, or otherwise to perform duty or service to another Prince. The like hath sometimes been introduced by the Law of Nations among some peo∣ple concerning such as have been by the chance of War made Slaves; but as concern∣ing the dedition of such, who are not banished,* 1.683 but do fly to avoid condigne punish∣ment, we have elsewhere treated.

XLII. War some∣times ended by lot.

To determine a War by lots is not always lawful, but then only when we have an absolute propriety in the thing contended for; for Cities are to be defended for the preservation of the Lives, Goods, Chastities, and such like of their Citizens. And Kings are more strictly bound to defend the general safety of their Kingdoms, than to omit those means which for their own and others defence are most natural; but yet in case, he that is unjustly invaded, shall upon due examination find himself too weak to ••ake any considerable resistance, it may seem lawful for him to refer the quar∣rel to the chance of a lot, that so by exposing himself to a danger that is uncertain, he may avoid one that is certain, of which two evils the lesser is to be chosen.

XLIII. Whether it may be deter∣mined by the event of a set number of Combatants.

But here follows a case very much disputed, namely, Whether it be lawful to de∣termine a War by the success of a Battel fought by an appointed number of Comba∣tants, as between on each side one, as that between Turnus and Aeneas, Menelaus and Paris; or between on each side two, as between the Aetolians and the Aelians; or be∣tween on each side three, as that between the Roman Horatii and the A••ban Curatii; or between on each side three hundred, as that between the Lacedemonians and the Argives: Whereunto I answer, That if we look no farther than unto the Law of Na∣tions, which is external, without doubt, such a decision is lawful; for by that Law e∣very man may destroy his Enemy any way: But if according to the opinion of the Ancient Grecians, Romans, and other Nations, every man hath an absolute power o∣ver his own life, then surely there is nothing therein repugnant to internal justice. But this opinion (as we have often said) is contrary not only to right reason but to Gods precepts; for to kill a man for his detaining of such things as we may well spare,* 1.684 is as we have already proved, to transgress the rules of Charity. Whereunto let us now add, That if he to whom God hath given life as a blessing, shall set so meanly by it, as to cast it away for a trifle, he sins both against God and his own Soul. If the thing contended for be worthy of a War, as if it be undertaken to preserve the lives of ma∣ny innocent persons (as Charles the fifth Emperour pretended when he challenged Fran∣cis the first King of France to a single Combat) in this case we ought with all our pow∣er to endeavour it; but to make use of a set Combat,* 1.685 either as a tryal of the goodness of our Cause, or as an instrument of Divine judgment, is vain and abhorrent from true Piety. There is but one only case which renders such a Combate just and innocent, and that too but on one side only, which is when nothing can reasonably be expected, but that he who maintains an unjust cause, will otherwise be certainly the Victor, and will prosecute his Victory to the destruction of a multitude of Innocents. Now he that shall in this case adventure his life by any means, whereby he conceives any pro∣bable hopes to prevail, must needs be innocent, or at least so reputed. But yet we cannot deny, but that many things, though not exactly done, yet may be by others, if not well approved of, yet permitted for the prevention of greater mischiefs, which could not otherwise be avoided. Like as in many places, griping Usury and publick Stews are at this Day tolerated. Wherefore in that case formerly put, of two persons pretending with equal titles to one Kingdom which cannot be divided, if they shall offer to try their fortunes in such a Combate, the people may safely permit them for the prevention of a more general calamity, which must otherwise necessarily ensue. The like may be said where such a Combate may put an end to any bloody War. Thus did Cyrus challenge the King of Assyria; and Metius in Dionysius Halicarnassensis thus con∣cludes, That seeing that the contest did not concern the power or dignity of the Nation but of their Princes only, it was but reasonable that they only who were concerned should decide the quarrel by Armes between themselves. Thus did the Adrianopoli∣tans answer Mahomet, when he and Musa Zilebes contested for the Ottoman Empire.

And so we read of sundry challenges made by several Pretenders to one and the same Kingdom, as of that which Charles the Fifth sent to Francis the first King of France; and of many Duels fought in such Cases, as that of Heraclius the Emperour with Cosroe Son to the King of Persia.

XLIV. Whether the fact of a King do oblige the people.

Where also we must note, That they that cast their Fortunes upon the Tryal of such Combates, may haply lose their own Right, if any they had, to the thing contended for. But they cannot transfer any Right to another, unless the Kingdom contended for be Pa∣trimonial. And therefore, for the confirmation of such Agreements, the consent, not only of the people but, of such as have any Right to the Succession, if there be any then born, would be necessary. And so it is the consent of the chief Lord in those Estates that are not free.

XLV. Who is to be adjudged the Conqueror.

It is likewise frequently disputed (where such Combats are permitted) which is the con∣quering Party, seeing that neither of them can be said to be absolutely conquered, unless all the Combatants on one side be either killed or put to flight. As in Livy* 1.686, he that forsa∣king his ground shall retreat either within his own Bounds, or unto places of strength, is said to be conquered. Amongst those three famous Historians, Herodotus, Thucydides, and Polybius, we read of three Questions proposed concerning Victory; the first whereof con∣cerns this of set Combats. But he that judiciously weighs it, shall find that both Parties departed the Field without any true Victory.* 1.687 For the Argives were not put to flight by Othryades, but marched away by Night, stedfastly believing, and as confidently proclaim∣ing themselves Conquerours to their own Country-men.* 1.688 Neither were the Corinthians routed by the Corcyreans, but having fought it out gallantly, and perceiving a strong Fleet of the Athenians near them, without endangering their Forces with the Athenians; they made a safe retreat. But Philip King of Macedon having taken a single ship of Atta∣lus, forsaken by her Mariners, though he were far enough from destroying his whole Fleet; yet thereupon (as Polybius notes) rather carried himself like a Conquerour,* 1.689 than thought himself one.* 1.690 And as to those other things which, as well Livy in several places as, the Authours before recited, do set down as signs of Victory; as the taking of the spoil, the granting leave to bury the dead, and the offering Battel a second time: These though they carry some shew of Victory, yet of themselves prove nothing; but as they are backt with other more demonstrative Aguments of the Enemies Flight. Plutarch, con∣cerning Agesilaus, writes thus, Having given the Enemy leave to bury their dead, and thereby gained to himself the honour of being Conquerour, he went to Delphos. So the same Plutarch in the life of Nicias proves both by Law and Custom, That he who craves leave to bury his dead, seems thereby to disclaim the Victory. Neither had they that craved this leave any Right at all to erect Trophees. But this (as I have already said) is no infallible sign of Victory; and yet where the Victory is otherwise doubtful, he that first departs the Field may more probably be thought to fly, than he that keeps it. But where there are no certain signs of Victory, there every thing is to remain as before the Fight; and so both Parties are ei∣ther to prosecute the War, or to draw to a new Agreement for Peace.

XLVI. War some∣times determi∣ned by Arbi∣tration.

Concerning Arbiters, Proculus informs us, That they are of two sorts, whereof the one he makes so Authoritative; that whether his award be just or unjust it must be obeyed: which (saith he) is to he observed whensoever both Parties do engage themselves to stand to the determination of a third person. The other he makes to be less binding; as when both Parties are content to refer their Case to be moderated by some indifferent person: An example whereof we have in that Answer of Celsus, If the Servant, being made free, shall swear to perform such services as his Patron shall think fit to impose upon him, the imposition of the Patron shall not be binding, unless what he imposeth be equal. But this interpretation of an Oath, though haply it might be warranted by the Roman Laws, yet can it not agree with the plain and genuine sense of the words simply taken. But yet this is very true, That the word [Arbiter] may be taken in both senses, either for a Moderator only, such as the A∣thenians were between the Rhodians and Demetrius; or for an absolute Judge, whose Sen∣tence must be obeyed. And in this sense we here take it, as also we did elsewhere, treat∣ing of the means how to prevent a War.* 1.691 And yet even against such Arbiters, to whose award both Parties have mutually promised to stand, it may be provided by the Civil Law, as in some places it is, That Appeals shall be granted and Bills of complaint admit∣ted. But this cannot be between Kings or between Nations, for here can be no superiour Power that can either hinder or dissolve the obliging power of the promise. And there∣fore whether the Sentence be right or wrong, we must be concluded by it. So that what Pliny sometimes said may very fitly be applied hither,* 1.692 Summum quisque Causae suae Judicem facit, quemcunque elegit; Every man makes him to whom he refers himself, the supreme Judge of his own Cause. This also we must add, That it is one thing to discourse concerning the Duty of an Arbiter, what he ought to do; and another thing to treat of their obliga∣tion that are content to refer their Cause to such an Arbitrement. For as though there were a Law among the Cities of Italy, That one Kinsman should not go to Law with ano∣ther,

but that all differences should be determined by Arbiters chosen on purpose; yet not∣withstanding this Law, there were some Cases wherein they might refuse such a reference. So also there may be some Cases and some Reasons why Princes may refuse to put their diffe∣rences to Arbitrement. Amongst which, this is not the least, When no assurance can be gi∣ven that the persons referring will stand to the award, Quis alterutrum coget nostrum, qui con∣ventis stare noluerit? saith Augustus to Mark Anthony; Who shall compel him (of us two) that refuseth to be determined by the Sentence of our common Judge or Arbiter? Private men may be compelled to stand to an Agreement by the publick Magistrate, but who shall compel Princes that have no Superior? Other Reasons also there may be;* 1.693 as that of Philip King of Spain, who refused the Pope to be Arbitrator between himself and other Com∣petitors, for the Kingdom of Portugal; because the Pope claimed the decision of all such Controversies as his Right: wherefore that prudent King was unwilling to add his own ex∣ample to some ancient ones, whereby the Pope might prove himself to be the sole Arbi∣ter of Kingdoms.

XLVII. Arbiters in Ca∣ses dubious, ti∣ed up to Law.

That which is to be considered in an Arbiter is, Whether he be chosen as a Judge or as a Moderator, which was the proper Office of an Arbiter, as Seneca thought where he tells us* 1.694, That a good Cause is better referred to a Judge than to an Arbiter: Melior videtur conditio bonae Causae si ad Judicem, quam si ad Arbitrum mittitur; Because a Judg hath a constant Rule to walk by which he must not transgress; whereas an Arbiter being freed from the Shackles of the Law, hath liberty to judge according to equity and good conscience; and therefore can either add or detract from the rigour of the Law, and give Sentence, not always as Justice shall exact, but some∣times as pity and humanity shall direct.* 1.695Aristotle reckons it as a Duty of an honest and a frugal man to refer his Cause to an indifferent Arbiter, rather than to a severe Judge, Ar∣biter id quod aequum est respicit, Judex Legem; For an Arbiter looks at that which is righteous, but a Judge at that only which is legal. And therefore is an Arbiter made choice of, to the end he may rebate the edge of the Law, or otherwise supply that wherein the Law is defe∣ctive.* 1.696 For equity in this place doth not signifie (as elsewhere) that part of Justice that expounds the general words of the Law, nearest to the mind of the Law-maker; for e∣ven this also is the Office of a Judge; but every thing that is better done than not done, although it be not according to the strict Rules of Justice properly so called. But such Arbiters as they are very frequent among private men, that are Fellow-Citizens or Subjects to the same State, and are highly commended, especially to us Christians, by S^t Paul, 1 Cor. 6. so in such Cases as are ambiguous, we are not to allow them so much power as to determine of them. For in these we are to follow that sense that hath the least of doubt in it; but especially when the dispute ariseth between two Sovereign Princes, who having no common Judg between them, may be presumed to restrain the power of Arbiters within those strict Rules of Justice which Judges are usually confined to.

XLVIII. Arbiters, not to judg of pos∣sessions.

Where this also is to be noted, That such as are chosen Arbiters by a People, or such as have the Sovereign Power over them, ought to give Sentence on the principal matter, but not to intermeddle with Possessions; For the judgment of these belong to the Civil Law. By the Law of Nations, Dominion follows the Right of Possession; and therefore till the Cause be tryed, no innovation ought to be made, as well to avoid prejudice, as because the recovery of things out of possession is difficult: Wherefore Livy in his Book of Pleas be∣tween the Carthaginians and Massinissa, hath this Observation, Legati jus possessionum non mutarunt, Ambassadours do never alter the Right of Possessions.

XLIX. What the power is of a pure Dedition.

There is also an assuming of an Arbiter, but of another kind; when a man yields him∣self up to the judgment of his very Enemy, which is a pure and absolute surrender, where∣by he makes himself a Slave, and gives his Enemy Sovereign Power over him. Thus the Aetolians in Livy were demanded in the Senate, Whether they would submit themselves to the Judgment of the Romans. This was the advice of L. Cornelius Lentulus,* 1.697 as it is recorded by Appian about the end of the second Punick War,* 1.698 concerning the affairs of Car∣thage, Let the Carthaginians, saith he, submit themselves to our censures, as the Vanquished u∣sually do, and as many others have formerly done; then we shall see how thankful they will be for what we shall give them. Neither shall they call this a League, for the difference between a League and this is great. For if we enter into a League with them, they will never want some plausible excuse to break it, alledging, That they had been first injured in some part of it; for seeing that many words in that League will admit of a doubtful interpretation, they can never want a pretence that have a mind to cavil. But when we shall have disarmed them as Prisoners, and made them our Slaves, then at length they will perceive, That they have nothing that is proper∣ly their own; and then they will despond, and whatsoever we shall afterwards give them they will thankfully accept of, as of a mere gratuity. But here also we must distinguish between what the Conquered ought to suffer, what the Conquerour by the Right of his Conquest may do, and lastly, what most of all becomes him. The Conquered Party having yielded themselves, ought to suffer whatsoever the Conquerour will impose upon them; for being perfectly inslaved, if we respect that Right of War that is external, they have nothing

but what may be taken from them, even their lives and personal liberty, much more their Goods, whether they be those that are publick, or those that belong unto them, as private men.* 1.699 The Aetolians, saith Livy, having yielded themselves to the will of their Enemies, dreaded nothing more than corporal punishments.* 1.700 And, as we have elsewhere said, When all things are surrendred, it rests in the choice of the Conquerour what he will take away, and where∣in and how far he will punish the Conquered. Pertinent whereunto is that of Livy, It was the ancient custom of the Romans, when they had to do with a people or a King with whom they were not joined in friendship, either by League, or by equal Laws, not to use their Sovereign Power over them, as being at peace with them, until they had first delivered up unto them all things both Di∣vine and humane, and until they had received their Hostages, taken away their Armes, and had placed Garrisons in their Cities. Yea, and sometimes they that thus surrendred themselves might be killed, as we have elsewhere shewed* 1.701.

L. The Duty of a Conqueror to∣wards the Con∣quered.

But the Conquerour, that he may do nothing unjustly, ought in the first place to take care that no mans life be taken from him, unless it be for some crime that deserves death. As also that no mans Goods be taken from him, unless it be by way of a just punishment. For in the Conqueror there is nothing so honourable, nor in some Cases so necessary, as in this manner to extend his clemency and liberality to the Conquered, so far forth as it may stand with his own security.* 1.702 When Cyrus had subdued the Assyrians, he comforted them by this assurance, That their Condition should be the same that before it was, their Houses, Lands, Wives and Children, they should freely enjoy; and in Case any personal injuries were of∣fered them, both he and his would readily defend them. Admirable are the effects of those Wars that are concluded with a general pardon. Thus did Nicholas the Syracusian plead in Diodorus in the behalf of those that had yielded to mercy, They have, saith he, yielded them∣selves, and given up their Armes, relying wholly on the Conquerours clemency: Quare indignum foret, eos decipi spe nostrae humanitatis; Wherefore it would be an everlasting dishonour to us to suffer them to be deceived in their confidence they have of our clemency. And a little after, Who amongst all the Grecians did ever inexorably condemn them to punishment, who yielded themselves to the Conquerours mercy. Appian brings in Octavius Caesar thus bespeaking L. Antonius, when he came to surrender himself, If the end of thy coming hither had been to purchase thy Peace only, thou hadst found me, not only a Conquerour, but such a Con∣querour as was throughly incensed by the wrongs thou hast done; but since thou art come to yield thy self, thy Friends, and thine Armes to our discretion, thou hast appeased mine anger, and taken away from me that power I had to have enforced thee to have accepted of what Conditions I pleased. For I am now to weigh, not so much what thou deservest to suffer, as what becomes me to grant; wherefore I shall chuse rather to consult mine own honour by for∣giving, than to gratifie my passion by a just revenge. We do often meet with these ex∣pressions in the Roman Stories, namely, That the Conquered do yield themselves sometimes to the faith, sometimes to the mercy or clemency, of the Conqueror. As in Livy, To those Ambassadours that were sent from the Neighbour Provinces to surrender their Cities to the faith of the Romans, he gave a gracious Audience. So in another place, speaking of King Perseus, he saith, Paulus earnestly labouring that he might be permitted to surrender both himself and whatsoever was his, to the faith and clemency of the People of Rome: Whereby nothing else is to be understood but an absolute rendition. For the word [Faith] in this and the like places, signifies nothing but the bare honesty and good∣ness of the Victor, unto which the Vanquished submits himself. There is a notable Story extant both in Livy and Polybius, concerning one Phanea an Aetolian Ambassa∣dour, who in his Speech to the Consul Manius let fall these words, That the Aetolians did freely surrender themselves and all they had to the faith of the same People of Rome: Which (being thereunto urged by the Consul) he re-affirmed in the very words. But when the Con∣sul demanded the principal Authors of the War to be immediately delivered unto him, Phanea readily answered, That it was only to the faith, and not to the subjection, of the Ro∣mans that they submitted themselves: Adding, That it was not the custom of the Grecians to be commanded; whereunto the Consul replied, That he cared not what the manner of the Grecians was, but the custom of the Romans was to impose Laws upon those who by their own concession had surrendred themselves: And immediately commanded the Ambassadour to be clapt up in Chains. Polybius's words are to this sense, Do ye, having newly surrendred your selves unto our trust, teach us what we must or ought to do? By which words it is evident what he to whose faith any people do commit themselves may do with impunity, and without violating the Law of Nations. But yet the Ro∣man Consuls did not make use of their power so as these Historians have reported, They only dismist the Ambassadours, and gave the Aetolians longer time to consult a∣bout it. Thus did the people of Rome answer the Falisci, as Valerius Maximus in∣forms us, That they very well understood that the Falisci had surrendred themselves not un∣to the power, but unto the faith of the Romans: And of the Campanes, That they had put themselves under the Romans, not by any League but, by a voluntary surrender. Now

as concerning his Duty unto whom such a surrender is made, that of Seneca is very pertinent, Clementiae liberum arbitrium habet, The Conquerour may shew what clemency he pleaseth; but yet he ought to give Sentence not as a Judge according to the rigour of Law, but according to equity and good conscience, he may either absolutely forgive, or he may exact whatever satisfaction he pleaseth. Nor do I think it much material in what form of words such a surrender is made, whether to the Conquerour's wisdom, or to his moderation, or to his mercy and clemency. All these being but palliations, the main thing intended is, That the Conquerour must be Judge.

LI. Of a Conditio∣nal Surrender.

Yet there are also Conditional Surrenders, which make provision either for every person, as when their lives, liberties, or some part of their Goods are expresly except∣ed; or for the generality, and amongst these some may amount even unto a Mixt Govern∣ment, whereof we have elsewhere discoursed.* 1.703

LII. Who may and ought to be gi∣ven as Hosta∣ges.

To the Articles agreed upon for such a Surrender, there succeeds in the next place Sureties for their performance; and these are either Hostages or Pledges. Hostages are either such as freely give themselves, or such as are sent by the Prince or State. For in all Civil Governments, he that hath the Sovereign Civil Power hath a Right as well to the actions, as to the Goods of his Subjects; but so that the Prince or State that sends them are obliged to satisfie either them or their Relations, for the losses and damages they shall thereby sustain. And in Case there be many nomina∣ted to be sent, and it be indifferent to the Commonwealth whether of them goes, it is best to determine it by Lots. But yet he that is only Lord of the Fee hath no such Right over his Vassal, as to send him, unless he be also his Subject; for the re∣verence and obedience due unto him doth not extend so far.

LIII. What Right is given over Ho∣stages.

That an Hostage may be put to death by that Right of Nations which we call ex∣ternal, we have elsewhere shewed. But not by that which is internal, unless for some crime of his own, he hath deserved it. Neither can they be made Slaves: Nay farther, they may by the Law of Nations enjoy and leave their Goods to their next Heirs; although by the Roman Laws it is provided, That their Goods being confiscated, should be brought into the publick Treasury.

LIV. Whether they may make their escape.

But whether it be lawful for an Hostage to make his escape, would be likewise enquired. Certainly it is not, if either at his first entrance, or at any time after, to the end that he might live under a more gentle restraint, he engaged his word, That he would not. Otherwise it was not the purpose of the City or State in sending their Citizen to oblige him not to flye; but to empower the Enemy to keep him in such a strict custody, that though he would, yet he could not fly. And thus may that Fact of Claelia be defended, who made her escape from Porsenna, to whom She was sent, with other Ladies, as Hostages. But admit that Claelia had not at all offended in ma∣king her escape, yet could not the City of Rome justifie her reception and detension. Which made Porsenna declare plainly, That unless they sent back his Hostage,* 1.704 he would take it to be a breach of their League. Whereupon the Romans immediately restored her, as a Pledge of their Peace.

LV. Whether an Hostage may for any other cause be de∣tained.

But this kind of assurance by Hostages is to those who are sent very odious, as well by reason that it deprives them of their liberty, as because it is occasioned by the fact of another. Wherefore in all Cases that are dubious, we are to understand it in the strictest sense; as that they that are sent as Hostages in one Case, cannot be detained as Hostages in another. Which is so to be understood, That when the latter Agreement was made, there was no mention at all made of those Hostages. But if we have already broken our faith in any other Agreement, or if there be any Debt justly due, then those Hostages may be detained, yet not then as Hostages, but as Subjects, which by the Law of Nations may be taken and kept as Prisoners for their Sovereign's Debt. Which very thing may also be easily prevented, by inserting this Clause amongst those Articles, That so soon as that, for which they were sent, shall be performed, those Hostages shall be freely sent back.

LVI. The Principal being dead, the Hostage is to be set free.

He that is sent as an Hostage to release for a while either a Prisoner or another Hostage, this dying, the other shall be released. For when the person dyed that was the Ho∣stage, all the Right that any man had in him as an Hostage, dyed with him; as Ʋlpi∣an speaks in the Case of a redeemed Captive. Wherefore as in Ʋlpian's Case, the ransome is not due, if the Captive dye before it be paid; so in this Case, the per∣son substituted cannot lawfully be detained, if the principal Person be defunct.* 1.705 It was then no unreasonable Demand that Demetrius made to the Roman Senate, in de∣siring to be dismist, as being no longer an Hostage for Antiochus, he being dead. Which very Plea, Justine also out of Trogus records and approves of, where he saith, That as soon as Demetrius heard that his Brother Antiochus (for whom he remained as an Hostage in Rome) was dead, he immediately address'd himself to the Senate, telling them,

That whilst his Brother lived he was contented to be his Pledge; but he being dead, he would gladly know whose Hostage he then was.

LVII. The King dy∣ing, whether the Hostage may be detain∣ed.

But what if the King dye that made the Hostage, shall his Hostage be detained? Of this the Answer depends upon that which we have heretofore handled* 1.706, namely, Whether the League so made be personal only, or real. For Accessaries cannot justi∣fie us in receding from that general Rule which we ought to walk by in the interpreta∣tion of Principals, whose nature they themselves ought to follow.

LVIII An Hostage may sometimes be principally obliged.

But here by the way we must add, That Hostages are not always bare Sureties in the Obligation, but sometimes the principal Parties; as when in an Agreement one man engageth himself for the fact of another, which if not performed, he himself is to make it good: and thus Hostages in his stead may stand obliged. Thus it was adjudged in that Sponsion made at Gaudys, as we have elsewhere declared* 1.707. But their opinion who hold, That Hostages may stand obliged one for the fact of another, though done without their consent, is not only rigorous, but unjust.

LIX. Pledges, how engaged.

Pledges have some things common with Hostages, and some things they have peculiar to themselves. That which they have in common is, That they may be detained for another Debt, at present due, unless faith be given to the contrary. That which they have peculiar is, That what Contract soever is made concerning these, will admit of a larger construction than those made concerning Hostages. Neither is the one so distasteful as the other: for that things should be kept strictly is natural; but that men should be so kept, is not so.

LX. The Right of Redemption, how lost.

Lastly, That length of time cannot prejudice the Right of Redemption as to things so en∣gaged, if that be performed for which they were originally deposited, we have elsewhere proved* 1.708. For that act that was done upon an ancient and known Agreement cannot easily be believed to proceed from a new one; and therefore that the Debtor forbears to rede∣mand his Pledge, is no good Argument to prove his dereliction of it, unless some other strong conjectures do induce us to believe otherwise: As in Case a man being by some means hindred when he would have redeemed it, had past it over in silence so long as was sufficient for him that detained it to ground his conjectures that we had for∣saken it.

CHAP. XXI. Of Faith during War, of Truces, Safe-Conduct, and the Redemption of Prisoners.

• I. What a Truce is, and whether it be a time of Peace or War.
• II. The derivation of the word Induciae.
• III. It being ended, there needs no new denoun∣cing of War.
• IV. How the time prefixt for a Truce is to be computed.
• V. When Truces begin to bind.
• VI. What during that time may lawfully be done.
• VII. Whether to retreat to repair breaches, &c. be lawful.
• VIII. A distinction concerning possession of pla∣ces.
• IX. Whether he that is forceably detained till the Truce be ended, hath afterwards a right to return.
• X. Of the special agreements for Truces, and what questions do thence usually arise.
• XI. Ʋpon the breach whereof the War re∣news.
• XII. What if some punishment be thereunto added.
• XIII. When the acts of private men break the Truce.
• XIV. A Safe-pass when there is no Truce, how interpreted.
• XV. Who are comprehended under the name of Souldiers.
• XVI. To go, to come, and to return, how to be understood.
• XVII. How far a Safe-conduct extends to persons;
• XVIII. And how far unto Goods.
• XIX. Who may come under the name of At∣tendants, and who under the name of a Nation.
• XX. Whether a passport be valid, he dying that gave it.
• XXI. What if it be given during pleasure only.
• XXII. Whether security be due, without or beyond his Territories that gave it.
• XXIII. The redemption of Prisoners, a favour.
• XXIV. Whether such a redemption may by a∣ny Law be forbidden: explained.
• XXV. That the Right a man hath to his Cap∣tive may be transferred.
• XXVI. The ransome of one Captive may be due to more.
• XXVII. Whether a ransome agreed upon may be null'd, if the estate of the person be then unknown.
• XXVIII. What goods of a Prisoner are his that takes them.
• XXIX. Whether an Heir may be charged with a Prisoners ransome.
• XXX. Whether he that is released, to release another be bound to return, if that other be dead.

I. Whether a Truce be a time of Peace or War.

THERE are some things which Soveraign Princes even in the midst of War, do usually grant one to another, which Virgil and Tacitus call, Belli Commer∣cia, The Traffick of War; and in Homer are said to be 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Mutual A∣greement, or Covenants of War. Such are Truces, Safe-Conducts, and the redemption of Priso∣ners. A Truce is an agreement, whereby though, the War continue yet, all acts of hostility do for a while cease, though (as I said) the War continue. For, as Cicero speaks, between War and Peace there is no Medium; it may be called a War, al∣though at present its operations are intermitted: As, A man may he said to be wise or prudent, though he be asleep; and vertuous, though for a while he be void of action. The distance of place, saith Aristotle, doth not dissolve friendship it self,* 1.709 but interrupts the ex∣ercise of it. An habit there may be, though at present it operates not. For,* 1.710 as Eustrati∣us well observes, An habit being compared with an ability simply taken, is called an act; but being compared with action it self, or the exercise of that ability, is called power; as a man may be an excellent surveyor, or a skilful Architect, though at present he be fast asleep: Est disertus etiam qui tacit; A man may be eloquent though for a while he be silent: and a good Workman, though he have no tools to work with. So then as Gellius sometimes said, Neque Pax est induciae; Bellum manet, pugna cessat: A Truce cannot be called a Peace; for though the fight cease, the War continues. So Pacatus in his Panegyrick, Induciae Bella sus∣pendebant; A Truce is but the suspension of the acts of War. Which I here the rather men∣tion, that we may understand, That whatsoever is agreed upon to be of force during the War, is also of force during the time of a Truce; unless it plainly appear, that it was not the state of War that was so much looked at, as the exercise of it. On the contrary, If any thing be agreed upon as concerning Peace, that is of no force in the time of a Truce: Neither am I ignorant that Virgil calls a Truce, Pacem sequestram; An indifferent Peace, or a thing between Peace and War: And that Servius upon that place calls it a temporary Peace. As also doth the Scholiast upon Thucydides: Varro calls it

The Peace of Camps for a few days, all which are rather descriptions than definitions, and those also but figurative; such as was that of the same Varro, who calls a Truce Wars Holyday, who might as well have call'd it Wars napp or short sleep. As Papi∣nius calls those Days whereon there are no pleadings, Days of Peace. And as Ari∣stotle called sleep, Vinculum sensuum; The lock or chain of the senses: By whose example we may rightly call a Truce the fetters of War. Which exposition of Varro (which also Donatus follows) Gellius deservedly blames for adding thereunto,* 1.711 for a few days, as if there could not be a Truce made for a few Hours. Whereunto also I may add, for Years; nay, for twenty, thirty, forty, yea a hundred Years: Examples whereof we may find in Livy, which serves also to confute that definition of Paulus, Induciae sunt cum in breve, & in praesens tempus convenit, ne invicem lacessant; A Truce is when by an a∣greement, neither party shall at present, or for a short time prefixt, provoke each other to acts of hostility. But yet possible it is, that if it shall evidently appear, that an absolute cessa∣tion from all Hostile Acts, was the solitary reason simply and wholly moving both Par∣ties to make such an agreement, that then whatsoever is said concerning a time of Peace, may also be said concerning the time of such a Truce, not simply by vertue of the word [Truce,] but by a certain conjecture that it was the mind and intention of both Parties,* 1.712 that that Truce should be equivalent to a Peace, whereof we have already treat∣ed in another place.

II. The word In∣duciae whence derived.

This word Induciae, which signifies a Truce, is not (as Gellius would have it) derived from Inde uti jam; from thence, as it is now: Nor (as Opilius thought) from the word Endoitus, or Endoitium, which signifies an Entrance into, or a beginning of; but rather from these words,* 1.713 Quod inde, that is, That there should be rest from such a time; or as the Greeks call it, A cessation of Armes from thenceforth. For it is confest both by Gelli∣us and Opilius, that the word, Induciae, was by the Ancients wrote with a [t,] and not with a [c,] thus, Induciae; and that what they now use in the plural, was doubtless of old used in the singular number, the Ancient word being Endoitia: As, for Otium, Rest, they then pronounced, Oitium, from the word Oiti, which we now pronounce Ʋti: As also of the word Poina (for which we now use, Poena, Punishment) is made Punio, and of Poinus (now Poenus) is made Punicus: So of that word, Ostia, Ostiorum, is now made Ostia, Ostia; and of Ostrea, Ostreorum, is now made Ostrea, Ostreae; so of En∣doitia, Endoitiorum, is made Endoitia, Endoitiae, and from thence Indutia; whereof the plural number is now only in use. Neither was Donatus much amiss, who would have Indiciae, to be derived from In dies otium, A rest for some Days. A Truce then in War is a rest or cessation,* 1.714 and not a Peace: Therefore some Historians do exactly distinguish them, when they say (as they often do) Pacem negatam, inducias datas; That though a Peace was denyed, yet was a Truce granted.

III. The Truce ended, War need not be re∣denounced.

Wherefore this time of a Truce being expired, there needs no new denouncing of War, for that which for a time hindred it, being taken away, the War presently starts up and enjoys its own Rights, being during that time not dead, but asleep, just as the Dominion or Jurisdiction that a State hath over a madman, doth, as soon as he reco∣vers from his madness. But yet we may read in Livy of a War, that by the judgement of the Colledge of Heralds was denounced after the expiration of a Truce: But then we must know, that it was the custome of the Ancient Romans to make use of these unnecessary cautions and premonitions, to shew how much they loved Peace, and how unwillingly they made War though their Cause were just, it being usual with them, Bellum indicere ne inferrent; To proclaim War to the end that they might make Peace. And this Livy himself seemed to hint,* 1.715 where he saith, That after a pitcht Battel had been fought with the Vejentes at Nomentum and Fidenae, there was indeed a Truce granted, but no Peace made; which Truce being ended, though they had before broken it, yet were the Heralds notwithstanding sent, who receiving no satisfaction to their demands, denounced War.

IV. How the time of a Truce is to be compo∣sed.

The time assigned for a Truce is either continual, as when it is made for an hundred Days; or by prefixing a time when it shall end, as until the Calends of March. In the former, the account must be to the last moment; for this is most natural. For that ac∣count which is made by days Civil, depends upon the several Laws and Customs of Nations. In the other kinds of assignments, it is usually questioned, Whether the Day, the Month, or the Year, whereon any Truce is to determine, ought to be included or exclu∣ded the time of the Truce. Surely all natural things have two Bounds whereby they are terminated, the one within, or adhering to the things themselves, as the Body is termina∣ted by the Skin, being the utmost part of it: The other outward, as a River is the Bound of the Land. Now according to either of these two ways, may those Bounds that depend upon the will be assigned. But yet those are most natural, that are a part of the thing bounded.* 1.716 So saith Aristotle, Terminus dicitur, quod ultimum cujusque est; That is said to be the end of any thing which is the extreme part of it. Neither is this repugnant to com∣mon

use, For if a man promise to do a thing before the day of his death, it shall include that very day whereon he died.* 1.717 Spurina forewarned Caesar of some danger that should not be protract∣ed beyond the Ides of March; and being upbraided by Caesar as a false Prophet, because the Ides of March were already come, yet no danger had befaln him; he replied, Venisse quidem eas, sed non praeteriisse, That they were indeed come, but not past. Wherefore much more should the interpretation of Truces be thus understood, the production whereof deserving so much the more of favour, as it is sparing of humane blood. But yet that Day from whence any Truce is to commence is not to be reckoned as one of the number, because such is the force of this Preposition [from] that it serves not for Conjunction, but for separa∣tion.

V. When they begin to bind.

But this also I may add on the by, That Truces and such like Conventions do immedi∣ately oblige both Parties consenting, as soon as they are perfected; but the Subjects on either side are not bound until the Truce receives the Form of a Law by a publick Pro∣clamation: which done, The Subjects on either side are obliged to observe it. But yet this Proclamation being made in one place only, shall not from that instant extend its ob∣liging power through all parts of that Nation. But sufficient time must be allowed, that every part may receive knowledge thereof. And in the mean time, if any thing be by those Subjects done contrary to that Truce, they are not at all punishable for it. Neither are the persons contracting notwithstanding any thing the less bound to repair those da∣mages. Wherefore that fact of the Spaniards in Italy, recorded by Mariana,* 1.718 cannot be defended.

VI. What may lawfully be done during a Truce.

What may lawfully be done, and what not, may easily be collected from the very definition of a Truce. All hostile Acts are unlawful, whether they be done against per∣sons or things. For whatsoever is by force of Armes done against an Enemy during a Truce is contrary to the Law of Nations, as Lucius Aemilius in Livy tells his Souldiers. Nay, whatsoever shall come from the Enemy accidentally into our Quarters, although it had been formerly ours, yet must it be restored; because by that external Justice, whereby such things ought to be tryed, they are the Enemies. And therefore, as Paulus the Law∣yer observes, the Right of Postliminy in the time of a Truce, is, as it were, out of date; because unto this Right it is required that there should precede another Right, namely, A Right to take from an Enemy by force what we can; which during a Truce cannot be ad∣mitted. To go and come hither or thither, as we please, so arrayed as not to threaten danger, is lawful. This Servius notes upon the words of Virgil,

Trojans, with Latines mixt, in safety go.* 1.719

Where also he relates this Story, That the City being besieged by Tarquin, and a Truce agreed upon between Porsenna and the Romans, whilst the Circean Games were celebrating within the City, the Latine Captains were permitted freely without any restraint, not only to try their Fortunes among the Romans, but, being Victors, to be crowned also.

VII. Whether to re∣treat back, to repair breach∣es, or the like.

For an Enemy to retreat back with his Army, as Livy informs us that Philip did* 1.720, is no breach of a Truce: No more is it to make up our breaches, to levy Souldiers, and the like, unless it be particularly agreed to the contrary.

VIII. To surprize places of strength, un∣lawful.

But on the contrary, by corrupting a Garrison to surprize places held by them during a Truce, is utterly unlawful; for it is not possible that such places should be justly gained but by the Right of War. The like may be said of Subjects, who during a Truce, cannot, if they would, revolt to the Enemy. An example whereof we may read in Livy* 1.721, For when the Inhabitants of Coronaea and Haliartus, in favour to Monarchy, sent their Ambassadours to Macedonia to desire a Garrison, whereby the better to defend themselves against the insolent pride of the Thebans; they received this Answer from the King, That having lately made a Truce with the Romans, he could not at present answer their desires. We may indeed read in Thucydi∣des, That Brasidas took the City Menda, revolting from the Athenians, to the Lacedemo∣nians, in the time of a Truce; but withal he excuseth himself by the like formerly done by the Athenians. And yet to possess places altogether deserted is lawful, that is, if they be truly so, with a purpose never to owne them again; but not if they be left only without Guards or Garrisons, whether those Guards were omitted before any Truce was made, or whether they were withdrawn upon the Truce-making only. For where the propriety is retained, another mans usurpation is unjust: whereby that cavil which Belisarius urged against the Goths, is easily refuted;* 1.722 who in the time of a Truce seized on some places being ungar∣risoned, upon this pretence of being forsaken.

IX. Whether he that being for∣cibly detained during the Truce, hath a Right after∣wards to re∣turn.

Here also it may be questioned, Whether he who during the Truce is forcibly detained, and that Truce being ended is found among Enemies, hath by the Law of Nations a Right to return. If we look only to that Right which is external, this mans condition is the same with his, who coming in Peace only for Traffick, the War breaking out unex∣pectedly

is unfortunately found amongst Enemies, whose doom (as we have al∣ready declared* 1.723) is, To be kept Prisoner during the War. Neither is this repugnant to internal Justice, so far forth as the Goods and actions of Enemies stand obliged for the Debt of the City they inhabit, and may be taken in discharge thereof. Neither hath this man any more reason to complain, than many more innocent persons have, who occasionally suffer by that War. Neither are we to refer hither that Case which Cicero puts in his se∣cond Book of Invention, concerning that Ship armed with an Iron Beak, which contrary to the Rhodian Law was found driven by a violent Tempest into Harbour, and according to that Law confiscate, and by the Questor demanded to be sold. For there the force of the Tempest did excuse the punishment. But here we discourse not of punishment, but of a Right that for a certain time only lay, as it were, asleep. Yet without all doubt to re∣lease such a man were far more generous.

X. Of some speci∣al reasons, for which a Truce is granted, and some Doubts thereupon.

There are also some things that during a Truce are unlawful, not simply of themselves, but as they are repugnant to that end for which only the Truce was granted. As for exam∣ple, If a Truce were granted only for the Burial of the Slain, there ought nothing to be altered; so if the Truce be made, That the Besieged should not in such a time be as∣saulted, as that made by Totilas with the Neapolitans; then to receive fresh Supplies, or to go and come freely, is unlawful. For seeing that such a Truce is granted in favour to one side only, it ought not to be made use of to the detriment of the other. Sometimes it is agreed, That during the Truce it shall not be lawful to come and go at pleasure. Some∣times again safety to our persons is granted, but not to our things; in which Case, if any mans person shall be hurt in the defence of his Goods, nothing shall be judged done con∣trary to the Truce. For since it is lawful for us to defend our Goods, personal safety is here to be referred to that which is principal, and not to that which comes by conse∣quence only.

XI. A Truce bro∣ken on one side, may dis∣charge the o∣ther.

If the Truce be broken on one side, there is no doubt but the injured Party may take Armes without any other solemn Denunciation; for every Article implies a Conditi∣on, as we have elsewhere said* 1.724. Some examples we may find in Histories where the breach of a Truce hath been connived at, even to the end of it; but we may likewise read of the War made against the Hetrusci and others, for doing things contrary to the Truce agreed on. From both which different examples we may collect, That the injured Party may lawfully take Armes. But whether he will make use of this Right or not, lyes in his own choice.

XII. What if a pu∣nishment be added.

But this is evident, That if the punishment agreed upon, being required, be accord∣ingly inflicted on him that breaks the Truce, then the Party injured hath no Right to make war upon that account. For to this end is the Offender punished, That all others may be secured; so on the contrary, If the injured person shall chuse rather to make war, then is the Offender acquitted of punishment.

XIII. When private acts break the Peace.

But yet what is done by a private person breaks not a Truce, without the access of some publick Act, that is, of command or approbation. But if he that doth it be neither punished, nor delivered, nor restitution made, it shall be reputed as done by the publick Order of the State.

XIV. Free Passage without a Truce, how to be understood.

A freedom to pass to and fro when no Truce is agreed on, is a kind of priviledge, and will therefore admit of such an interpretation as is already declared* 1.725, where we treated of priviledges. Now this priviledge being neither prejudicial to any third person, nor grie∣vous to him that granted it, is not to be understood in the strictest sense, but with some allowance of favour, yet so that the propriety of the words will bear it; but especially if it were freely offered and not granted at the request of him that hath it. But much more when, besides that which is private, there is any publick advantage to be gained thereby. We are therefore to forbear rigorously to interpret any such Passes, though the words may perhaps warrant it, unless otherwise some great absurdity will ensue, or that we are thereunto led by very probable conjectures, That it was so intended by him that gave them. On the contrary, A favourable construction, even beyond the proper signification of the words, shall take place, rather than any such like absurdity shall be admitted, e∣specially if we shall be thereunto induced by any such probable conjectures.

XV. Who may be admitted un∣der the name of Souldiers.

From whence we may collect, That a safe Pass given unto Souldiers comprehends not inferiour Captains only, but even chief Commanders; because the propriety of the word will admit of such a construction. Although also it may admit of another more strict, so under the name of a Clerk may be understood a Bishop; as under that of Souldiers, Ma∣riners employed in a Ship may be comprized, and all such as in that War are engaged by a Military Oath.

XVI. Leave given to come, implies leave given to return.

Leave given to come, shall be understood as if it were also given to return; yet not through the force of the word, but to avoid somewhat that would otherwise be absurd. For that which is intended as a courtesie, should not by any construction be rendred unpro∣fitable; wherefore it implies also a safe return, so far until we shall arrive thither, where

we may be in safety.* 1.726 It was therefore but treachery in Alexander to cause those per∣sons to be killed in their journey homewards, to whom he had indulged the favour to depart. Concerning which fact Plutarch gives his censure thus, Haec velut macula ad∣haesit bellicis actionibus regis, caetera in Bello agere & juste & regaliter soliti; This was a great blemish to the actions of a King, otherwise just and magnanimous. But on the other side, if licence be given to depart, it shall not be so understood as if it were also given to re∣turn; neither doth that which is given us to come, give us a Right to send; for these are two divers and distinct things: neither is there any reason why we should seek af∣ter a sense beyond that which is natural to the words; but yet an errour herein com∣mitted, though it confer no right, yet certainly it mitigates somewhat of the punish∣ment, if any such be added. But even he, to whom leave is given to come, may come once, but not again, unless the time limited in the Pass be such as may induce us to believe otherwise.

XVII. How far it ex∣tends to per∣sons:

The Son shall not be permitted to follow his Father, nor the Wife her Husband, un∣less it be with a purpose to cohabit with him: for it is usual to dwell, but not to travel with our Families; a Servant or two though not exprest, yet may be presumed to be allowed to such as cannot well travel without them: for he that grants the princi∣pal, may well be thought to grant the necessary consequents, which yet is to be mo∣rally understood.

XVIII. How far to Goods:

Where licence is granted to persons, Their goods are also comprehended, though haply not all, yet such as are useful for travellers to carry with them.

XIX. To Atten∣dants.

Under the word [Companions,] we are not to understand such whose condition is more hateful than his, to whom the licence of Safe-coming is granted, as Pyrates, Rob∣bers, Fugitives, and Rebels, if the Nation from whence they come, be in the Pass-port exprest, it evidently excludes all Foreigners from protection.

XX. A Pass dyes not with him that gave it:

Licence to pass freely, being granted by vertue of the supreme power, is not in a case that is dubious, made void by the death of him that granted it, according to what hath been already said* 1.727 concerning the grants of Kings and Soveraign Princes.

XXI. During plea∣sure, how to be understood,

It is likewise frequently questioned what is meant by this clause in a Pass, during my pleasure; whereunto the best answer is, that this priviledge shall last until some new de∣claration of the will of the Donor shall rescind it; for in a dubious case, that which was deemed sufficient to give a Right, shall be presumed sufficient to continue it: But yet not, if he that granted it be disabled any longer to declare his pleasure; as in case he be dead, for then whatsoever depended barely upon the uncertainty of his will, shall likewise cease, as accidents do when the substance fails.

XXII. A Pass implies protection.

A Safe-pass being granted, protection is due even beyond the Territories of him that grants it, because it ought to protect us against all the licence of War, which of it self is not confined within the bounds of any one Princes Dominion, as we have elsewhere shewed.* 1.728

XXIII. The redem∣ption of Priso∣ners.

The redeeming of Captives is very much favoured, especially among Christians, it being an especial act of mercy commended unto us by the Law of God. Redemptio mag∣num & praeclarum justitiae munus, were the words of Lactantius; The redeeming of Prisoners is a great and singular part of justice. And in case it be from Barbarians,* 1.729 it is by St. Ambrose reckoned as the best and greatest liberality in the World; and in that Apology he makes for himself and his Church, for the breaking in pieces the consecrated Vessels, thereby to redeem the Captives, he affirms, that, Ornatus Sacramentorum est redemptio capti∣vorum; The chiefest ornament to Christian Sacraments, is the redeeming of Slaves: where al∣so he hath many other such excellent sayings to the same purpose. St. Aug. follow∣ing the example of St. Ambrose did the like, though contrary to the carnal sense of some who therein opposed him, as Possidius relates. The very same is recorded by Hincmarus in the life of Remigius. And Adamus in his Ecclesiastical British History, makes honoura∣ble mention of the like fact done by Rimbertus Archbishop of Breme. And we like∣wise find it approved of by the sixth general Synod, whose decree is recited by Gratian, namely,* 1.730 That no Bishop shall presume to alienate any of the consecrated Vessels of their Churches, unless for such causes as were of old approved of by the Ancient Ca∣nons of the Church, as for the redeeming of Captives and the like,

XXIV. Whether the redemption of Prisoners may by any Law be forbidden.

Being thus awed by so great Authorities, I dare not absolutely approve of those Laws, which forbid the Redemption of Slaves, without a distinction, such I mean as we may read of among the Romans, Nulli Civitati viliores Captivi quàm nostrae; There is no City so regardless of Captives as ours, saith a wise Roman in open Senate. For which cause Rome is called in Livy, Civitas Captivis minime indulgens; A City shewing little fa∣vour to Captives. That Ode of Horace is very well known, where he condemns the ran∣soming of Prisoners as an opprobrious act, an example of dangerous consequence, and is an execrable fact encouraged with a reward. But what Aristotle blames in the La∣conian, is also usually blamed in the Roman Government, namely, that all their Polity

tended only to the advancement of their Military Discipline, as if in this alone con∣sisted the safety of their Commonwealth; whereas, if we will but duly consider it as rati∣onal men, with the allowance of some grains of compassion, it would seem much better to rebate somewhat of that rigour, which the licence of War permits, than to leave so many of, perhaps, our Kinsmen and Countrymen in an everlasting slavery. I cannot therefore conceive how such a Law can be reputed just, unless it shall appear that such a severe course is necessary for the prevention of far greater, and morally inevitable calamities, which will otherwise in all humane probability fall upon us: for in such a case of necessity, as the Prisoners themselves ought by the rules of Charity, patiently to bear their hard fortune; so may this punishment be justly imposed upon them and threatned against others, to deter them from the like cowardize, according to what we have elsewhere written concerning any one Citizen, which for the publick safety of the City may be delivered up.

XXV. That a man may transfer his Right in a Captive.

True it is, that to make Slaves of such as are taken in War, is not agreeable to our Laws and Customes; yet doubtless may that Right of exacting a ransome from him that is so taken, by him that took him, justly be transferred to another: For by the Law of Nature things even incorporeal may also be alienated.

XXVI. The ransome may be due to more than to one.

And possible it is that the same ransome may be due to several persons; as in case a Prisoner being discharged by one, the ransome not paid, be apprehended by another, and after that by another, these must needs be distinct debts, because they arise from distinct causes.

XXVII. Whether an agreement for a ransome be null'd, his e∣state or quali∣ty being not then known.

The ransome agreed upon, shall bind the Contractors, though the Prisoner be found richer than he was thought to be, when the Contract was made; because by that Right of Nations which is external, whereby we are in this case to be judged, no man can be compelled to give a greater price than what was first agreed on, although underva∣lued, if there were no fraud in the Contract, as may easily be understood by that which hath been already delivered in the Chapter of Agreements* 1.731.

XXVIII. What Goods of Captives are his that takes them.

From what hath been already said, that Captives are not now to be made Slaves, it follows, That the Dominion that we have over their persons, doth not give us an u∣niversal Right to all that is theirs, as hath been elsewhere said* 1.732: for he that takes a Prisoner hath a Right to nothing but what he particularly lays hold on; so that if the Prisoner can conceal any thing he hath from him, he cannot be said to get it, be∣cause he is not thereof possest. Thus Paulus the Lawyer pleads against Brutus and Man∣lius, He that takes a Field into his possession, cannot be said to be possest of the trea∣sure, which he knoweth not to be there buryed; for no man can be said to possess that which he knows not of: Whence it will likewise follow, that what the Prisoner can so conceal, he may make use of for his Redemption.

XXIX. Whether the ransome a∣greed on be chargeable up∣on the Heirs.

Another Question is like to arise, namely, whether a ransome agreed on, the Pri∣soner dying before it be paid, may be recovered from his Heir? Whereunto the answer is easie, for if the Captive dye in Prison, doubtless the ransome is not due; because the promise was made upon condition that the Prisoner should be set at liberty, but he that is dead cannot be said to be at liberty: But on the contrary, if being at at liberty, he shall dye, the ransome shall be recovered, because he enjoyed that for which the ransome was promised; yet I confess the Contract may be so made that the ransome shall be due simply, and immediately from the time of the Contract, and then the person taken shall not from thenceforth be held as a Prisoner of War, but as one that doth freely engage himself as a Surety for the payment thereof: So on the contrary, the Contract may be so made that the ransome shall not be due, unless the Prisoner live and be at liberty upon a Day prefixt; but these things being less natu∣ral, shall not be presumed to be done, unless evidently proved.

XXX. Whether he that is freed to free ano∣ther, ought to return, the o∣ther being dead.

It may likewise be questioned, whether he that is released on condition, that he shall release another, if that other dye before he be released, is bound to return into Captivity. I have elswhere* 1.733 proved that a promise freely made for the Fact of a third, is sufficiently performed if nothing be omitted by the Promiser, in order to its accomplishment; but if a promise be made upon a valuable consideration, the Promiser stands obliged to the full value of what he promised. Just so it is in this case, for he that is released is not bound to return into Captivity, because it was not so agreed upon; nor will that indulgence that is given to liberty, admit it so to be ta∣citly understood, neither ought any man to make a gain of another mans liberty; but yet he that is so dismist out of Prison, ought to pay the value of that which he could not perform. For this cause was Balionius much blamed by Mariana, who being released up∣on his promise to release Carvailius, Carvailius dying before he could be released, refu∣sed to pay the value of his ransome. This answer I conceive to be more agreeable to the naked and simple truth, than that which is delivered unto us by the Interpreters of the Roman Laws.

CHAP. XXII. Concerning Faith given by inferiour Commanders in War.

• I. Of the several kinds of Commanders.
• II. How far an agreement by them made, binds the supreme power:
• III. Or gives occasion to such an obligation.
• IV. What if any thing be done contrary to commands: this explained by distinctions.
• V. Whether in such a case the contrary party be obliged.
• VI. What the Commanders in War, or the Magistrates may do concerning their infe∣riours, or for them.
• VII. It is not in the power of a General to make Peace
• VIII. Whether h•• may grant a Truce; this cleared by a distinction.
• IX. What security of persons, and what of things may be granted by them.
• X. Such Agreements are to be strictly under∣stood: and why.
• XI. A surrender accepted by a General, how to be understood.
• XII. The addition of this caution, if the King or the People shall think fit, secures the Ge∣neral.
• XIII. How the promise of delivering up a Town is to be interpreted.

I. The several kinds of Com∣manders.

AMONGST publick agreements this is reckoned by Ʋlpian as one, when the Ge∣nerals of each Army do agree about some things between themselves: We de∣clared before that when we had sufficiently discourst of Faith given by the su∣preme Powers, we would likewise say somewhat of Faith given by subordinate Pow∣ers, and that either between themselves or unto others, whether those powers were next immediately to the supreme: As that of Generals, to whose Conduct the Army is committed; whereunto we may fitly refer that of Livy, Nec Ducem novimus,* 1.734 nisi cujus auspicio Bellum geritur; We acknowledge no other Captain, but him to whom the ma∣nagement of the whole War is committed: Or whether they are such as are Commanders under them, between whom Caesar in his Commentaries distinguisheth thus,* 1.735 The office of a private Captain is one thing, and the office of a General is another; the former doth but ex∣ecute particular orders, but this latter ought freely to consult and provide for the safety of the whole.

II. How far agree∣ments by them made, bind their Sove∣raigns:

As concerning these mens engagements, there ought to be a twofold inspection, first, Whether the supreme powers are thereby engaged; and secondly, Whether they them∣selves are bound by them. The former of these may be determined by what we have already said, namely, That Princes may be obliged by such as they depute to declare their wills, whether particularly exprest, or collected from the nature of their office; for he that grants a power, grants as much as in him is, all things necessary to that power, which in moral things is morally to be understood: whence we may collect, That subordinate Commanders may oblige their Soveraigns two several ways, first, by doing that which in all probability belongs to their place or office; secondly, by doing that which belongs not to their office, yet which they have a special Commission to do, in case that Commission be either publickly known, or at least unto those with whom they have to do.

III. Or give occa∣sion to such an obligation.

There are also other ways whereby a Soveraign Prince may be bound by the facts of his Officers, yet so, that that fact is not the proper and immediate cause of that obligation, but the occasion only, which may be done two ways, either by con••••••ting unto it when done, or by the thing it self. Their consent will appear by their appro∣bation, which may be given not only expresly but tacitly; that is, when the supreme power had knowledge thereof, and yet permitted them to be done, which cannot with any probability be referred to any other cause; and how this may proceed we have elsewhere shewed. By the thing it self he may be so far obliged,* 1.736 as not to enrich himself by anothers loss; as if by an agreement made by his Ministers, a Prince receives any benefit, he is thereby bound to perform that part of the said agreement which concerns himself to perform; or if he refuse to do it, then he is bound to forego the benefit, which he either hath or may receive by that agreement: for this is that equi∣ty which as we have often elsewhere said, evens the scales of justice. And hitherto and no farther is that saying true, Si quid utiliter gestum sit, valet; Whatsoever contract brings profit, binds the Contracter. And therefore we cannot but condemn them of injustice, who refusing to fulfil the agreement, yet are resolved to detain that, which but by that agreement they could never have had; as the Romans did when they re∣fused, either to confirm the agreement made by Cnaeus Domitius, or to set at liberty King Bituitus, whom Domitius had first invited as his Guest, and then perfidiously ta∣ken and sent bound to Rome: which fact as Valerius Maximus testifies, Senatus nec ap∣probare

potuit, nec rescindere voluit; The Roman Senate neither could approve of, nor would for Reasons of State rescind. Many other such like examples we may find in Histories.

IV. What if any thing be done contrary to Command.

And here also we must repeat what we have formerly delivered, namely, That a Sove∣reign Prince may be obliged by the fact of his General, in case he transgress not the bounds of his publick Office, though he act contrary to his private instructions; this equity was well observed by the Roman Pretor, in such actions as concerned Factories. For it is not every Contract made with a Factor that shall be binding to him that employs him; but such only as are made concerning such Goods for which he is appointed his Factor. But in Case it be publickly proclaimed, That no man shall thenceforth treat or make any A∣greement with such a man, that man shall no longer be treated with as a chief Minister: Nay, though such a Proclamation be made, yet if it appear not so to the Contractors, whatsoever shall be by him agreed on, shall bind the Prince that first employed him. Moreover, the condition of his Preposition ought to be observed; for he that is willing to be treated with under such a certain condition, and by the mediation of such a person, whatsoever is agreed upon by that person, in reference to the business for which he was commissionated, ought in all equity to be observed. Whence it follows, That some Prin∣ces or People are more, and some less, bound by such Contracts as are made by their Ge∣nerals, if their several Laws and Constitutions are sufficiently known. But in Case these be not well known, then must we be guided by the most likely conjectures, which always presume that to be within their power, without which they cannot well discharge the Of∣fice of a General. But yet if any such inferior Officer shall transgress his Commission, and promise more than he can perform, he himself shall be bound to the full value, unless some Law sufficiently known shall hinder it. So likewise if there shall be found any fraud in the Case, as if such a principal Commander shall pretend to have a greater power given him by his Prince than indeed he hath, he shall then be obliged to satisfie for the damage thereby sustained; yea, and if through his crime some great injury do arise to the adverse Party, he shall be bound to suffer punishments answerable to his crime. In the former Case, his Goods shall make satisfaction; and if those fall short, his service, or his Corpo∣ral Liberty: In the latter, his person, or his Goods, or both, according to the greatness of his crime. Neither will it suffice in the Case of fraud to declare before-hand, that he will not oblige himself: For as well satisfaction for the damages done, as punishment for a crime committed, are both of them due, not by a voluntary, but by a natural obli∣gation.

V. In which Case the other Party stands obliged.

Now because in all such Contracts, either the Prince or his Principal Minister, doth stand obliged; therefore it follows, That the other Party is thereby obliged; for the Con∣tract cannot be said to halt. And by this we may discern the power that subordinate Com∣manders have to oblige their Superiours.

VI. What power they have over their Inferiors.

Now let us see what power they have over their Inferiours. And surely it is not to be doubted but that a General hath a power over his Souldiers, and a Magistrate over his Citizens, as to those Acts that are usually subject to their Command; but not otherwise, without their consent. On the contrary, an Agreement made by a General or a Magi∣strate in such things as are merely profitable, shall wholly bind their Inferiours. For this is sufficiently warranted by their Office and Authority; yea, and in such things also as are burthensome and chargeable, so as those burthens be such only as have been usually ex∣acted; but as to those that are extraordinary, they stand not obliged without their own consents and acceptance: Which things are very agreeable to what we have already from the very Law of Nature proved,* 1.737 concerning a stipulation made in the behalf of a third person. But these Generals will receive a clearer light in the handling of these Parti∣culars.

VII. It is not in the power of Ge∣nerals to make a Peace;

It belongs not to a General to look into the Causes or consequences of a War, it being his Duty carefully to manage the War, but not to conclude it; yea, though he have the greatest power that can be given him by his Commission, yet shall it be understood of the conduct of the War only, Neque enim nos Jus habemus ordinandi res Imperatoris, For neither have we any power to dispose of what only belongs to the Emperour (saith Belisarius to the Goths.) Thus Agesilaus answered the Persians, De Pace constituendi Jus est penes Civitatem, It is only in the power of the Commonwealth to make Peace. And therefore the Peace which Albinus made with Jugurtha, withour Order from the Senate, the Senate broke, as Salust informs us. Thus likewise Livy, Quî rata ista pax, quam non ex authoritate Senatus, non jussu popu∣li Romani peregerimus? What stability can there be in that Peace which is made without any Order or Decree, either of the Senate or People of Rome? And therefore neither did that Promise made at Caudis, nor that made at Numantia, bind the people of Rome, as we have elsewhere said. And thus far is that of Posthumius verified, If there be any thing whereunto a People may be obliged, they may be also obliged to all things; that is, to all things that concern not the Conduct of War. And this is apparent by what hath been already said about Surrenders, and about Sponsions made for the leaving or burning of Ci∣ties, and concerning the change of Government.

VIII. But it is to grant Truces:

To grant Truces is in the power, not of a General only but, of inferiour Commanders; that is, to such as they either assault or hold besieged, so far forth I mean as it shall concern themselves and their Forces. For other Commanders are not thereby obliged, as we may-learn from the examples of Fabius and Marcellus, recorded by Livy.* 1.738

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* 1.739. 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† 1.740. 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.

X. Such Agree∣ments are to be taken in a strict sense.

Moreover, in these Agreements made by principal Commanders, because they govern not their own, but the Affairs of the State, the strictest interpretation that the nature of the Contract will bear is to be followed, lest thereby Princes be bound to grant more than haply they would, or their Generals damnifie themselves in the execution of their Office.

XI. How a Surren∣der accepted by a General is to be under∣stood.

So he that is accepted of upon an absolute Surrender, shall be judged to submit himself wholly to the will of the Conquerour, whether it be of the King, or of the People that maintain the War; Examples whereof we have in Gentius King of Illyrium, and Perseus King of Macedonia, of whom the former yielded himself to Anicius, the latter to Paulus.

XII. How that cau∣tion, If the King or the people please, is to be under∣stood.

Wherefore, if this Clause may be added to the Contract, namely, That it shall stand good if the Prince or the People shall think fit; as of such we may read in divers Histories, di∣vers Sponsions. It will so far provide for the Generals safety, that in Case that Agree∣ment shall not be confirmed by the Supreme Power, he himself shall be indemnified, un∣less it be in that wherein he shall clearly be enriched.

XIII.

And they who have engaged themselves to deliver up a Town, may dismiss their Garri∣sons; as we read in Livy the Locrians did.

CHAP. XXIII. Of Faith given in War by private Men.

• I. That Faith given in War by private men binds not, confuted.
• II. Faith given to Pyrates and Thieves, how far binding:
• III. Minors herein not exempted:
• IV. Whether an errour doth excuse us.
• V. The Objection drawn from publick profit, answered.
• VI. These applied to our Faith given to return into Prison.
• VII. Or not to return unto such a place; Nor to bear Armes against such a Party.
• VIII. Faith given not to make an escape.
• IX. A Prisoner taken in War, cannot yield himself to another.
• X. Whether private men may be compelled by their Sovereign to perform what they have promised.
• XI. What interpretation such Contracts will ad∣mit.
• XII. What is to be understood concerning Life, Apparel, the coming of Aids, &c.
• XIII. What is meant by returning back unto the Enemy.
• XIV. In Agreements made, Not to surrender if just Aids come, how to be understood.
• XV. The manner of the Execution makes no Condition.
• XVI. Concerning Hostages given to perform such Agreements.

I. Faith to be kept even with Enemies by private men:

THAT Saying of Cicero is very well known, Etiam, si quid singuli, temporibus ad∣ducti Hosti promiserint, est in eo ipso Fides servanda; Whatsoever any private per∣son, being urged by the necessity of the times, shall promise to his Enemy, even in that very thing ought he to preserve his Faith. Now whereas he saith [any private person] it is plain that it matters not whether he be a Souldier or a Citizen; for Faith ought to be kept with an Enemy by both. Strange it is then that any man, expert in the Laws, should a∣verr,* 1.741 That Faith in publick Agreements ought strictly to be kept, but not in private. For if private men have Rights peculiar to themselves, which they may dispose of as they please. And if an Enemy be capable of those Rights, what should hinder but that these private men may for their lives or liberties engage those? Whereunto we may add, That un∣less this be granted, many Murders would daily be committed; yea, and many men kept in perpetual bondage: For neither could the lives of many men be otherwise preser∣ved, nor their liberty procured, if no Faith privately made were to be kept with Ene∣mies.

II. Even with Py∣rats & Thieves, and how far forth.

Yea, and not only with such as the Law of Nations accounts Enemies, but even with Pyrates and Thieves, are we to keep our private Faith no less than if it were publick; as we have elsewhere proved* 1.742, with this only difference, That in Case any promise shall be ex∣torted from us by an unjust fear, imprest by him to whom the promise is made, the Pro∣miser may demand restitution; which if refused, he may take by himself: which by the Law of Nations we cannot do, if that fear proceed from a publick War. But in Case such a promise be confirmed by an Oath, it must necessarily be kept, if we would avoid the sin of perjury; which if committed against a publick Enemy, is punishable by man; but if against Pyrates or Thieves, it is connived at; yet not that it is then justifiable, but merely in detestation of their condition of life, who are to receive the benefit there∣of.

III. Minors not herein exem∣pted.

Neither may we in this Case exempt Minors, if they be of such capacity as to under∣stand what they promise; for the priviledges indulged unto them spring only from the Civil Law, whereas we respect only the Law of Nations.

IV. Whether an errour do ex∣cuse us.

As to those promises made through errour or misbelief, we have already declared, That we have a power to retract them, when that which was erroneously believed was, as it were, the Condition of the promise; as when a man believing his own Son to be dead, a∣dopts another to be his Heir.

V. The Objection drawn from publick profit, answered.

* 1.743But how far forth the power of private men extends in making any Contract with an Enemy, is a Question of greater difficulty. Certain it is, That no private man can alienate that which is publick. For if so great a power be not to be given to a General, much less to private men; as is elsewhere proved* 1.744. And yet what Contracts private men may make with an Enemy concerning their own private affairs, whether actions or things, may very well be doubted; because we cannot well grant these to our Enemies without en∣damaging our own Party: Whence it will appear, That all such Contracts made are un∣lawful, as well with Citizens, in respect of that supereminent power their City hath over them, as with mercenary Souldiers, in respect of their Military Oath. But y••t we must

know, That such Agreements being made to prevent a greater or more certain mischief, are to be reckoned rather as beneficial than destructive, even to the Publick. For always a les∣ser evil being compared with a greater, hath the appearance of good; according to that Say∣ing of him in Appian, Of evils the lesser is most eligible. And yet neither can that bare Faith whereby a man doth not utterly renounce all power that he hath over himself, and all that he hath; nor can the publick benefit, without the Authority of a Law, be of that effi∣cacy as to make void that which is done, so as it shall have no effects of a just Right, though we should grant, That that which was promised was contrary to his Duty that promised it. The Law indeed may take away this power from its Subjects, whether they be Natives or Sojourners; but it doth not always do so, for it spares Citizens. Neither indeed can it al∣ways do it;* 1.745 for humane Laws (as we have already said) do then bind when made after an humane way: but do lose their binding power when they impose such things as are either altogether unreasonable, or unnatural. For those Laws or particular Mandates which do manifestly enjoin such things, are not to be either held or obeyed as Laws. For all ge∣neral Laws are to be construed with so much favour to humanity,* 1.746 as not to bind in Cases of extremity. But if that act which by any Law or Precept was prohibited, and though done, declared to be void, might with equal Right be so prohibited; then shall that act of a private person be altogether void, yet may that man be justly punished, be∣cause he promised that which he had no Right to perform, especially if being bound by Oath he shall do it.

VI. This applied to a Captive promising to return into Ca∣ptivity:

A promise made by a Prisoner to return into Prison is deservedly binding, because it renders not his Condition worse than it was: and therefore that fact of Regulus was not only glorious, but just; for as Cicero well observes, Regulus ought not by his perjury to in∣terrupt that general Traffick and Commerce of War, or to break those mutual Covenants and Conventions made between Enemies; yea although, as Horace speaks,

—He could not chuse but know The tortures threatned by his Barb'rous Foe.

For even when he did engage himself by promise to return, he was not ignorant what they might do. So of those ten Captives sent to Rome, eight of them denyed, That they had any Right to recover their Estates by Postliminy, being bound by Oath to return back;* 1.747 as we may read in Gellius.

VII. Or to such a place, or not to take Armes.

Some Prisoners are set at liberty upon their promise, That they will not return to such a place, or that they will never more bear Armes against them, under whose power they then are: An example of the former we may find in Thucydides, where the Ithomenses en∣gaged themselves to the Lacedemonians to depart out of Peloponnesus, and never to return thither again. And of the latter, Examples are now very frequent; an ancient Example whereof is left us by Polybius, where we find that the Numidians were dismist by Amilcar,* 1.748 upon Condition, That none of them should ever engage in War against the Carthaginians. The like Condition we find imposed on the Heruleans in Procopius; yet there are that hold such an Agreement to be void, as being contrary to the Duty we owe unto our Countrey. But to this I answer, as before, That not every thing that we do contrary to our Duty is pre∣sently void. Besides, it is not against our Duty to procure our own liberty by such a promise; because, being already under the power of the Enemy until we are dismist, we are as useless to our Countrey as if we were dead: wherefore our Countries condition can∣not be made worse by such a promise.

VIII. Not to flye.

Some there are that engage themselves not to make their escape; and herein also Faith is to be kept, though when we made that promise we were under restraint: though some there are that hold otherwise. For by this very promise either our lives are sometime pre∣served, or we enjoy the more liberty. But yet if after this promise made, we are still kept under a closer restraint, we are thereby discharged of our promise, if it were made upon Condition that we should not be so bound.

IX. A Captive ta∣ken by one, cannot yield himself to ano∣ther.

It is but a foolish Question that some make, Whether he that is taken Prisoner by one, may yield himself Prisoner to another. For it is too clear, That no man can take away that Right which another man hath gained by any Contract that he can make: For by the very Right of War, or partly by the Right of War, and partly by the Grant of him that maintains the War, according to what we bave already said, A Prisoner taken in War is his that takes him.

X. Whether pri∣vate men may be compelled by their Prince to perform what they have promised,

As concerning the effects of such Agreements there is a notable Question, namely, Whether private men, in Case they neglect to perform what they have promised, may be compelled thereunto by their superior Power? Whereunto the best Answer is, That they may, but in a solemn War only; because they that make War, are bound by the Law of Na∣tions each to other to do that which is right and just, even concerning the facts of private men; as if an Ambassadour being publickly sent from an Enemy, should by a private person

be assaulted. Wherefore, that motion which Cornelius Nepos made, was assented unto by many of the Roman Senators, as Gellius testifies, namely, That those two of the ten Ca∣ptives, who being bound by Oath to make their returns, refused, should by a strong Guard be conducted, and delivered up to Hannibal, especially considering that the same Senate had, not long before, compelled those to return whom King Pyrrhus had dismist upon the like Conditions.

XI. What inter∣pretation we should give to such a Con∣tract.

Concerning the interpretation. of some words in such an Agreement, we are to be gui∣ded by those Rules which we have often recited, that is to say, We ought not to recede from the proper signification of the words, unless it be to avoid some absurdity that would from thence follow; or that we be induced thereunto by some other very strong conjectures: and where the words are ambiguous, that we incline to that sense that makes most against him who gives the Law.

XII. How these words [Life, Garments, the coming of Aids] are to be understood.

As he that covenants for his life only, hath no Right to his liberty; under the name Ap∣parel we are not to comprehend Armes: Aids are then said to come when they are in sight, though they do nothing; for their appearance hath some kind of effi∣cacy.

XIII. Who may be said to return to the Enemy.

But he cannot be said to return to the Enemy, who returning privately, presently de∣parts: For our promise to return is not fulfilled, until we have put our selves under the same power of the Enemy as we were when we promised to return. The contrary interpretati∣on Cicero accounts to be merely delusive, and foolishly crafty, introducing fraud, and sometimes perjury. And Gellius calls it a fraudulent Cheat, always branded by the Cen∣sors with reproach, and the persons that made use thereof rendred intestable.

XIV. Succors, when said to come.

In Agreements made, Not to surrender in case just succours should come within such a time to their relief, such succours are to be understood as are sufficient to repel the Enemy, and secure us from farther danger; four Examples whereof are recorded by Procopius.* 1.749

XV. That which re∣lates to the manner of the execution is no Condition.

This also deserves to be observed, That if any thing shall be agreed on concerning the manner of the execution, that shall be annexed unto the Agreement as a Condition. As for example, In Case a Safe-Conduct be granted to such a place, and that place before we can arrive thither, happen to be in the possession of the Enemy, the Agreement is not fulfil∣led until we come where we may be in safety.

XVI. Of Hostages to perform such Covenants.

As to Hostages, we are to be guided as abovesaid; sometimes they are but Sureties for the acts of their Principal; but yet it may be so agreed that the Obligation should be disjunctively understood, that is to say, That either such a thing shall be done, or the Ho∣stages may be detained. But if the meaning be doubtful, we must incline unto that which is most natural, which is, That they shal be held as Sureties only, until such things shall be performed.

CHAP. XXIV. Of Faith tacitely given.

• I. How Faith may be given by silence.
• II. An example in one desiring to be recei∣ved into protection by any Prince or Peo∣ple.
• III. In another that either demands or admits of a parly or treaty.
• IV. That it is lawful for either party during a treaty to promote his own interest, so that he hurt not him with whom he treat∣eth.
• V. Of dumb signs which by custome become significant.
• VI. Of a silent approbation of something de∣manded.
• VII. A punishment when it may be presumed to be remitted by silence.

I. Faith given by silence.

THAT some things are by silence agreed on was not ill observed by Javole∣nus, for this is usual in most agreements, whether they be publick, private or mixt; the reason whereof is, because it is our consent only however signi∣fied and accepted that hath the power to transfer our Right. But this consent of ours may be otherwise exprest than by voices or letters, as we have already shewed: for some signs are naturally included in the act it self.

II. As in him that desires to be admitted unto protection;

As for example, He that coming from an Enemy, or as a Stranger, commits him∣self to the Faith of another King or People, doth without doubt tacitely oblige him∣self, not to act any thing against that State under which he desireth protection; we cannot then agree with them, who justifie that act of Zopyrus, who not being able to con∣quer Babylon by force, cut off his own Nose, Ears, and Lips, and so mangled, fled in∣to the City, and perswaded the Citizens that Darius his Master had done it in revenge for speaking somewhat in their behalf; and having thereby got into some place of eminent trust, betrayed the City unto Darius: For Zopyrus his fidelity unto his Prince, could not justifie his perfidious dealings with them to whom he fled, and by whom he was received into protection. The like may be said of Sextus the Son of Tarquin, who betook himself for safety to the Gabii. Virgils censure upon the like fact of Si∣non was this,

Now Graeci'an Treacheries view, and from this one, Learn to avoid the rest.—

III. And in him that craves a Parly.

So he that demands or admits of a Parly, gives his Faith tacitely, that during that Parly both Parties may be secure.* 1.750 Agathias condemns Ragnaris the Hun, for at∣tempting to kill Narsetes in his return from a Conference whereunto he had invited him. This Livy concludes to be a manifest breach of the Law of Nations, when E∣nemies under the colour of a Treaty, shall lay wait to destroy each other, which he there stiles, Colloquium perfide violatum; A treaty most perfidiously broken.* 1.751 Upon that fact of Cnaeus Domitius before-mentioned in treacherously seizing upon King Bituitus, whom he had first invited to a Parly, and afterwards entertained as his Guest, Valerius Max∣imus gives this censure: Nimia gloriae cupiditas perfidum existere coegit;* 1.752 His immoderate thirst after glory constrained him to be perfidious. Wherefore I cannot but admire why he that wrote the eighth Book of Caesars Gallick Wars, rehearsing the like fact of T. La∣bienus, adds these words, Infidelitatem Comii sine ulla perfidia judicavit comprimi posse; He conceived that Comius his disloyalty might be thus supprest without any imputation of Trea∣chery.

IV. During a Par∣ly each may promote his own interest, not hurting the other.

Neither may we wrest this tacite consent beyond what I have said; for if carrying themselves inoffensively one towards another during the conference, they can under the colour of that conference divert their Enemies from their Warlike Counsels, and in the mean time strengthen themselves and promote their own affairs, this shall not be accounted treachery but policy, such as in times of War are not lawful only but com∣mendable: wherefore they that blamed King Perseus for suffering himself to be delu∣ded through hopes of Peace, had not so great a regard to justice and fidelity,* 1.753 as to the generosity of a mind emulous of Martial Glory, as may be sufficiently collected from what hath been already said concerning the deceits and stratagems usual in War. Such was that stratagem wherewith Asdrubal preserved himself and his Army out of the Ausetane Forests. And that also whereby Scipio African the Elder,* 1.754 dis∣covered the situation of Syphax his Camp, both which we find recorded by Livy, whose

example L. Sulla also followed in the social War at Esernia, as Frontinus informs us.

V. Of dumb Signs which by cu∣stom are signi∣ficant.

There are also some dumb signs, which through custome are significant, as testifying the consent of the will; as of old the branches of Olives, and among the Macedoni∣ans the erection of Pikes; among the Romans the covering of their heads with their Shields, these were then the usual signs of submission and rendition: So also was the folding of the hands behind them among the Persians; and the turning of their Shields and Ensigns downwards among the Romans,* 1.755 as Ammianus testifies. The Germans, and from them some other Nations, express their submission by the holding forth of Herbs or Grass, as Pliny tells us. And they that yield themselves to the Con∣querour, do usually cast away their Armes, and beg mercy, as Servius notes upon Virgil. But he that would signify his acception of a surrender, whether he be bound to give quarter, and how far forth, we may inform our selves by what hath been said above. In our days the hanging forth of a white Flagg is a tacite sign that a Treaty is de∣manded: So among the Northern Nations is the kindling of a fire, as Johannes Mag∣nus relates.* 1.756 The like doth Pliny write of the Laurel, all which according to the cu∣stomes of several Nations, are no less significant, and consequently as obligatory, as if they were exprest by words and voices.

VI. Of a tacite ap∣probation of something de∣manded.

A Sponsion made by a General, how far forth it may be believed to be tacitely ap∣proved of by the Prince or People, we have already declared* 1.757; as namely when both the act is sufficiently known, and thereupon some thing done or not done, whereof no other reason can be given, but what proceeded from their consent to that promise or agreement.

VII. Punishments when tacitely remitted

We cannot conclude that a punishment is remitted, because it is for a time dissem∣bled or connived at; but some other act must necessarily intervene, which either by it self may argue, either a perfect reconciliation, as when a League of friendship is made with such a man; or at least that the person offended hath so great an opinion of the vertue or the valour of the person punishable, that what he formerly did, deserves to be pardoned, whether this opinion be by words exprest, or by such other means as are usually taken to signifie as much.

VIII. Whether the actors being pardoned, the instigators be also acquitted.

Another Question we find discust by Polybius, namely, Whether a punishment being remitted to them that did the mischief, may be judged to be remitted to them that commanded it to be done; which I conceive it ought not, for, Singulos tenent sua deli∣cta; Every Fox ought to pay his own skin to the fleaer, and every offender bear his own punishment.

Notes

• * 1.1

  See second Book, Chap. 2. §. 10.
• * 1.2

  Mat. 13.29.
• * 1.3

  Gen. 18.23. &c.
• * 1.4

  Procop. Goth l. 1.
• * 1.5

  De Off. lib. 1. c. 30.
• * 1.6

  See an ex∣ample of a De∣claration made by the English in Cambden a∣bout the years 1591. and 1598.
• * 1.7

  Vid. Thuan. An. 1589. lib. 96. Cambd. An. 1589. & 1595.
• * 1.8

  Cambd. An. 1595.
• * 1.9

  Many things to this purpose we may find in Jo. Meursius his Da∣nish History l. 1. & 2. where the Lubeckers and the Empe∣rour are for a free trade, the Danes against it.
• * 1.10

  Lib. 15.
• * 1.11

  Lucian Phil. Xenoph. de Cyri Inst. lib. 1. Thucyd. lib. 5. Plut. Agesilaus,
• * 1.12

  Sup Josh. qu. 10,
• * 1.13

  De Offic. 3.
• * 1.14

  Lib. cont. Men∣dat. cap. 10.
• * 1.15

  Gen. 20.
• * 1.16

  Jerem. 38.
• * 1.17

  Pliny lib. 6. cap. 30.
• * 1.18

  1 Sam. 19.16. Luke 24.28.
• * 1.19

  Mark 6.28:
• * 1.20

  Acts 16.3.
• * 1.21

  In 1 Cor. 4.6.
• * 1.22

  1 Sam. 21.12.
• * 1.23

  Josh. 8.
• * 1.24

  Plato de Rep. l. 1 & 2. & 5. Xen. lib. 4. Socrat. Plut. de Stoic. Contract. Quint. 12.1. Arist. Nic. 7.3. l. 4. c. 8.
• * 1.25

  De verbis Apost. Ser. 28.
• * 1.26

  Ambr. citat. à Gratian. l. 22. q. 2. post si quae∣libet.
• * 1.27

  John 11.11.
• * 1.28

  John. 11.20, 21.
• * 1.29

  Luke 22.30. Matth. 26.25,
• * 1.30

  Amphibolo∣gies,
• * 1.31

  Tacit. Ann. lib. 6.
• * 1.32

  Much like unto that of the Oracle to Croesus,

  If Croesus over Halis go, A Kingdom shall he overthrow.

  Which Croesus understanding in a wrong sense, instead of conquering Persia, lost his own Kingdom of Lydia.

  The like we read was sent from Rome to some that waited but for the Popes fiat, to have killed King Edward: Edvardum occidere nolite timere bonum est. Which being written without any Point or Com∣ma, would admit of two contrary expo∣sitions.
• * 1.33

  Cor furari.
• * 1.34

  Gen. 31.••••, 26, 27,
• * 1.35

  Instit. 6.18.
• * 1.36

  De Benef. l. 7. c. 23. Hyperboles, Ironies.
• * 1.37

  See Albericus, Gent. l. 2. c. 5.
• * 1.38

  Livy l. 34. App. Hysp.
• * 1.39

  Quod bonum est, id vero est me∣lius. Socr. 4. Plut.
• * 1.40

  De rep. 3.
• * 1.41

  Hor. 3. Carm. ••. 11.
• * 1.42

  Vid. Eras. in Moriae Encomio. Haesitat. Aug. Lib. 2. qu. su∣per Exod.
• * 1.43

  Lib. 2. de rep.
• † 1.44

  l. 2. de Cyr. Inli. & 5. So∣crat.
• * 1.45

  St. Aug. is very doubtful in this case.
• * 1.46

  2 Kings 6.19.
• * 1.47

  2 Kings 8.10.
• * 1.48

  In lib. 6. Ni∣comicor.
• * 1.49

  Tho. 2.2. qu. 110. art. 1. & 3. with others,
• * 1.50

  The School∣men make St. Aug. their guide.
• * 1.51

  Nic. 4.1.
• * 1.52

  Lib. 1.
• * 1.53

  Lib. 7.
• * 1.54

  Mat. 10.16.
• * 1.55

  Matt. 12.36.
• * 1.56

  Carm. lib. 4. Ode. 6.
• * 1.57

  Scholiast upon that place in Horace.
• * 1.58

  Rhesc.
• * 1.59

  Herb. H. 8.
• * 1.60

  Lib. 2. c. 26. §. 5.
• * 1.61

  Videsupra B. 2. ch. 21. § 19.
• * 1.62

  De Benef. l 6. c. 20.
• * 1.63

  Liv. lib. 1.
• * 1.64

  Plut. Ages. & Xenoph. Hist. Graec. 4.
• * 1.65

  Jos. Antiq. 6.
• * 1.66

  Vid. lib. 2. cap. 21. Sect. 7.
• * 1.67

  Lib. 8. c. 6.
• * 1.68

  Liv. l. 34.
• * 1.69

  Vid. Gaiiius de pace publ. l. 2. c. 8. n. 7. Vasq. Cont. illust. c. 10. sect. 41.
• * 1.70

  Book 1. Ch. 1. Sect. 12, 13.
• * 1.71

  Gregor. lib. 9.
• * 1.72

  Cymon.
• * 1.73

  Lib. 1. cap. 3. sect. 4.
• * 1.74

  L. Postlimini∣um, sect. 2. D. de Cap. L. si quis ingenuam.
• * 1.75

  Philip. 4.
• * 1.76

  Vand. 2.
• * 1.77

  Lib. 1.
• * 1.78

  Lib. 2.
• * 1.79

  De finibus. 5.
• * 1.80

  De Civit. Dei lib. 19. c. 24.
• * 1.81

  Lib. 10. Ep. 1.
• * 1.82

  Lib. 5. de rep.
• * 1.83

  Lib. 6.
• * 1.84

  De Civit. Dei, l. 4. c. 4.
• * 1.85

  Jos. Ant. l. 15.
• * 1.86

  Camd. Eliz. an. 1582.
• * 1.87

  1. The Inva∣der may be re∣pelled without the denoun∣cing of War.
• † 1.88

  Lib. 1.
• * 1.89

  Lib. 3.
• † 1.90

  Excerp. Peire∣sianis.
• * 1.91

  Lib. 1.
• * 1.92

  So may the right Owner apprehend his own without declaring his intention. But to recover a Debt, or one thing for ano∣ther, a prede∣mand is neces∣sary.
• * 1.93

  2. What in these cases Na∣ture requires not, yet may be done ho∣nestly and lau∣dably. Vid. lib. 2. c. 23. sect. 7.
• * 1.94

  Deut. 20.11. Jos. Ant. l. 5. 2.
• * 1.95

  Xenoph. Hist. l. 2.
• * 1.96

  Lib. 22.2.
• * 1.97

  Lib. 25. c. 9.
• * 1.98

  Lib. 8. Ann. l. 1.
• * 1.99

  The Greeks calls this 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, to declare Re∣prizes lawful.
• * 1.100

  Livy lib. 31.36.
• * 1.101

  Caducaeus. whence deri∣ved, see Plinys Nat. Hist. l. 29. c. 3. and Ser∣vius upon the 4^th and 8^th of Virg. Aeneads.
• * 1.102

  Livy lib. 36.
• * 1.103

  Livy lib. 36. cap. 42.
• † 1.104

  Alb. Gent. lib. 1. cap. 2.
• * 1.105

  The Turks two dayes be∣fore Battle make many great fires. Chalcoc. lib. 7. Lib. 3. de Ira. cap. 2.
• * 1.106

  Ayala. l. 1. c. 5. Alb. Gent. l. 2. c. 2.
• * 1.107

  Crantzius Sax∣onicorum 2. 5.
• * 1.108

  1 Cor. 6.17.
• * 1.109

  Adv. Marcion.
• * 1.110

  Ad Helv.
• * 1.111

  Ad Pammach.
• * 1.112

  Ad 1 Cor. 7.
• * 1.113

  Strom. 4. See Grat. out of St Aug. c. 14. q. 1. Ad Pollent. lib. 1. c. 15. Grat. c. 28. q. 1.
• * 1.114

  Lib. 5.
• * 1.115

  Summum jus summa injuria.
• * 1.116

  Orat. pro Rabi∣rio Posthumo.
• * 1.117

  Declam. lib. 3. cap. 5.
• * 1.118

  Lib. 30.
• * 1.119

  Orat. pro Balbo.
• * 1.120

  Orat. 251.
• * 1.121

  Euripides.
• * 1.122

  Livy 26. Id. 21. Lib. 28.
• * 1.123

  Pro M. Marcel.
• * 1.124

  Lib. 7.
• * 1.125

  Annal. lib. 1.
• * 1.126

  Troad. See the second Book, chap. 1. sect. 1.
• * 1.127

  Epist. 96.
• * 1.128

  Epist. 2.
• * 1.129

  Institut. 4. c. 9. Pharsal.
• * 1.130

  Livy lib. 37.
• * 1.131

  Liv. l. 25. Thucyd. lib. 1.
• * 1.132

  Psal. 136.
• * 1.133

  Troad.
• * 1.134

  Terence Adelph. Act. 2. Scen. 1.
• * 1.135

  Dion. 47.
• * 1.136

  De Civit. Dei. c. 2.
• * 1.137

  Ann. 12.
• * 1.138

  Dion. 45. Livy. 2. Cicero in Ver. 5. Livy lib. 28. Annal. 1.
• * 1.139

  Goth. l. 1.
• * 1.140

  Polyb. l. 1. & 5. Liv. lib. 24.
• * 1.141

  Plut. de claris Mulierib. Dionys. 16. Tac. An. 12. 1 Mac. 13.17. Hist. 4.
• * 1.142

  Lib. 42.
• * 1.143

  Offic. l. 3.
• * 1.144

  Plut. vit. Pyr∣rhi.
• * 1.145

  Lib. 3. c. 8. Lib. 5. c. 5. Annal, 3.
• * 1.146

  How this wa•• prepared, we may learn our of Rhodoginus, c. 10. 23. See Lyps. Ann. upon Plin. l. 11. c. 53.
• * 1.147

  Salisburiensis, lib. 8. c. 20.
• * 1.148

  Strab. l. 10.
• * 1.149

  Proc. Goth. l. 2. De Piscatu. l. 4.
• * 1.150

  Lib. 8. Epist. ad Rufinum.
• * 1.151

  Curtius l. 4.
• * 1.152

  Lib. 14.
• * 1.153

  Liv. l. 42.
• * 1.154

  Marcius Phili∣pus, Liv. l. 44.
• * 1.155

  Lib. 9. c. 7.
• * 1.156

  Eutropius.
• * 1.157

  Just. lib. 14.
• * 1.158

  Just. Lib. 12.
• * 1.159

  Annal. l. 11.
• * 1.160

  Lib. 7.
• * 1.161

  But not if he owe him no faith.

  But not, if the person sent owe no faith to him whom he is sent to kill.
• * 1.162

  Livy. l. 2. Lib. 3. c. 3.
• * 1.163

  Just. l. 2. Zozimus l. 4.
• * 1.164

  Livy 27. Tacit. Hist. l. 5. De Off. l. 1. c. 40. & Jos. Anc. 15. Lib. 4. Lib. 24.
• * 1.165

  Livy l. 2.
• * 1.166

  Aug. de Civit. Dei, lib. 2.
• * 1.167

  Lib. 26.
• * 1.168

  Goth. lib. 3.
• * 1.169

  Bacchai.
• * 1.170

  Contra App.
• * 1.171

  Lib. 5.
• * 1.172

  Chap. 5. §. 2.
• * 1.173

  Lib. 4.
• * 1.174

  Annal. l. 12.
• * 1.175

  Bell. Mithrid.
• * 1.176

  Contr. in excer∣ptis 4. 4. Eclog. 7.
• * 1.177

  Lib. 8.
• * 1.178

  Verr. 3.
• * 1.179

  Deut. 7.5.
• * 1.180

  Antiq. lib. 4. cap. 8. & lib. 2. Contr. App.
• * 1.181

  That Nebuchad∣nezzar should sack the Temple at Jerusalem was not to be admired; but for Joaz (though an Idolater) yet one that acknowledged the Eternal True God, and that had worshipped him that was Lord of the Temple: That he, I say, should lay his hands on the Consecrated Vessels, and call the Family of Obed-Edom, whose Children had the Hereditary charge of its Treasures to a strict account, as if they had been Officers of his own Exchequer; this was an execrable sin, which hastened his destru∣ction.
• * 1.182

  Tacit.
• * 1.183

  De Civit. Dei lib. 18. cap. 45. Pro Flacco.
• * 1.184

  Dan. 5.23.
• * 1.185

  With caution to the dead.
• * 1.186

  Vide lib. 2. ch. 7. §. 2. Lib. 2. ch. 20.
• † 1.187

  Gen. 14.
• * 1.188

  Heb. 7.4.
• * 1.189

  Gen. 48.22.
• * 1.190

  1 Chron. 5.20, 21, 22.
• * 1.191

  1 Sam. 30.26. De Benef. 37.
• * 1.192

  Bona quae victus habuit omnia victoris fiunt.
• * 1.193

  Instit. Cyri. l. 2.
• * 1.194

  Lib. 38.
• * 1.195

  Or. 2. contra Rullum. Offic. 1.
• * 1.196

  Arist. l. 1. de rep. c. 8.
• * 1.197

  Hist. G••. l. 3.
• * 1.198

  Greg. l. 9.
• * 1.199

  1 Sam. 30.20.
• * 1.200

  Lib. 6.
• * 1.201

  Vit. Rom.
• * 1.202

  Dionys. Hali∣car. l. 7.
• * 1.203

  Livy lib. 7.
• * 1.204

  Lib. 12.
• * 1.205

  Polyb. in ex∣ecrpt. Legat. n. 72.
• * 1.206

  Mithrid. ci∣vil. 1.
• * 1.207

  Justin lib. 40.
• * 1.208

  L. eaquae D. de acq. dom.
• * 1.209

  Lib. 30.
• * 1.210

  Lib. 5.
• * 1.211

  Vand. l. 2.
• * 1.212

  Lampridius.
• * 1.213

  Aen. l. 2.
• * 1.214

  Plut. Aristid. Herod. l. 9. Plut. Lysand.
• * 1.215

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.216

  Homer. Iliad. 10.
• * 1.217

  Pliny lib. 23. c. 3.
• * 1.218

  Plut. Alex. Curt. Diod. l. 17. Strab. 15. Greg. Turon. l. 2. c. 27. Aen. l. 3. Ser∣vius. Liv. l. 23.
• * 1.219

  Liv. l. 37.
• * 1.220

  Liv. l. 5.
• * 1.221

  Lib. 13. c. 23.
• * 1.222

  Vit. Aemil.
• * 1.223

  Lib. 2.
• * 1.224

  Lib. 2. Ep.
• * 1.225

  Liv. l. 1.
• * 1.226

  Liv. l. 3.
• * 1.227

  Dion. Hal. l. 2.
• * 1.228

  Liv. l. 1.
• * 1.229

  Liv. l. 5.
• * 1.230

  Loco dicto.
• * 1.231

  Lib. 10.
• * 1.232

  1 Sam. 30.24.
• * 1.233

  Liv. 45.
• * 1.234

  Dion Hal. l. 4.
• * 1.235

  Lib. 1.
• * 1.236

  Verr. 3.
• * 1.237

  Plut. M. Cato.
• * 1.238

  Magistri mili∣tum.
• * 1.239

  C. de donatio∣nibus.
• * 1.240

  Dion. l. 6. &. 7. Livy lib. 5.
• * 1.241

  Dion. Hali.
• * 1.242

  Liv. l. 4. Dion l. 5, 6.9.10.
• * 1.243

  Livy l. 46.
• * 1.244

  Lib. 6.
• * 1.245

  Livy l. 5.
• * 1.246

  Livy l. 5.
• * 1.247

  Lib. 38.
• * 1.248

  Dion. lib. 8.
• * 1.249

  Idem lib. 10.
• * 1.250

  Ibidem.
• * 1.251

  Liv. l. 10.
• * 1.252

  Liv. l. 5. L. 6.
• * 1.253

  Liv. lib. 37.
• * 1.254

  Lib. 25.
• * 1.255

  Liv. l. 37.
• * 1.256

  Id. l. 38.
• * 1.257

  Lib. 5. c. 3.
• * 1.258

  Livy lib. 45.
• * 1.259

  L. 11. c. 18.
• * 1.260

  Lib. 16. c. 4.
• * 1.261

  2 Mac. 8.28, 30.
• * 1.262

  De benefic. 4. c. 15.
• * 1.263

  Ann. l. 9.
• * 1.264

  Vid. Plut. Mar∣cell.
• * 1.265

  Propert.
• * 1.266

  Liv. l. 4. c. 24.
• * 1.267

  Dionys. l. 6. Polyb. l. 6.
• * 1.268

  Paruta l. 8.
• * 1.269

  Lib. 1. de A∣bra.
• * 1.270

  Numb. 31.27.
• * 1.271

  1 Sam. 30.24.
• * 1.272

  2 Mac. 28.30.
• * 1.273

  2 Sam. 12.30.
• * 1.274

  App. Civil. 1.
• * 1.275

  Tacit. Hist. 3.
• * 1.276

  Ne manente peri∣culo omissis ho∣stibus praeda manus impedi∣ret, quòd pluri∣mas saepe Victo∣rias corrupit. Sub Corona.
• * 1.277

  Goth. 2.
• * 1.278

  Vand. l. 2.
• * 1.279

  Lib. 16. c. 14.
• * 1.280

  Gall. Constitut. lib. 20. tit. 13.
• * 1.281

  Leges Hisp.
• * 1.282

  Jo. Magn. in his Sweed. Hist. Consulatus Ma∣ris Cap. 285.
• * 1.283

  Leg. Hisp.
• * 1.284

  Lib. 5. c. 8.
• * 1.285

  See above Ch. 4. Sect. 7. and this Ch. Sect, 5. Livy lib. 55.
• * 1.286

  Videlib. 2. ch. 22. §. 11.
• * 1.287

  Book 2. ch. 5. §. 27.
• * 1.288

  Lib. 2.
• * 1.289

  Oppianus de pis∣catu l. 2.
• * 1.290

  1. Controv. 5.
• * 1.291

  Andr. Act 1. Scen. 1.
• * 1.292

  Libro omnem virum bonum liberum esse-
• * 1.293

  Lib. 6. cap. 9. 2.
• * 1.294

  See second Book, ch. 13. §. 26.
• * 1.295

  Lib. Hist. se∣cundo & tertio.
• * 1.296

  See Chap. 9^th of this Book §.. 5, 6.

  Plin. Nat. Hist. lib. 7. c. 28.
• * 1.297

  Lib. 2. de ca∣villat. c. 5.
• * 1.298

  Bemb. lib. 10.
• * 1.299

  ☜
• * 1.300

  See the second Book, seventh Chap. §. 2.
• * 1.301

  Lib. 2. Cont. Marcion.
• * 1.302

  Vita Mosis.
• * 1.303

  Synod. Gangr. See second Book, 5. chap. towards the end.
• * 1.304

  Deut. 23.15.
• * 1.305

  Bod. de rep. l. 1. c. 5.
• * 1.306

  Lib. 4.
• * 1.307

  Plat. de rep. lib. 5.
• * 1.308

  Liv. l. 35.
• * 1.309

  De Bello Gallic.
• * 1.310

  Lib. 1.
• * 1.311

  Book 1. Ch. 3, Sect. 2.
• * 1.312

  Procop. Vand. 2.
• * 1.313

  De Repub. lib. 7.
• * 1.314

  Annal. lib. 12.
• * 1.315

  See Book 1. Chap. 4, Sect. 8. Book 2. Ch. 5. Sect. 31. Book 3. Ch. 5. Sect. 2. and Ch. 20. Sect. 49. Vid. Ch. 7. Sect. 8.
• * 1.316

  Aenead. l. 12. Eunuch.
• * 1.317

  Val. Max. lib. 5. c. 2. 6. Diod. Sic. exc. Leg. n. 3. Plut. Vit. Fla∣minii.
• * 1.318

  Polyb. except. Leg. n. 3.
• * 1.319

  Ant. l. 13. c. 2.
• * 1.320

  Why the Ro∣mans neglect∣ed their Citi∣zens taken Pri∣soners.
• * 1.321

  Lib. 7. 〈…〉〈…〉.
• * 1.322

  Sabinus.
• * 1.323

  Fugitives.
• * 1.324

  Compare this with what was said above ch. 6. §. 7.
• * 1.325

  Vand. l. 1.
• * 1.326

  Concil. His pal. 2.
• * 1.327

  See second Book, ch. 15. §. 5.
• * 1.328

  Lib. 1. de Orat▪
• * 1.329

  Salvo pudore.
• * 1.330

  De Offic. lib. 1. De ira l. 1. c. 27.
• * 1.331

  Orat. 15. Lib. 1. de Clem. c. 18.
• * 1.332

  De Benef. l. 5. c. 21.
• * 1.333

  Instit. l. 3.
• * 1.334

  De Offic. l. 3.
• * 1.335

  Pol l. 1. c. 6. Vid. sup. c. 4. § 2.
• * 1.336

  Ep. 32.
• * 1.337

  Ep. 4. De diversis Ec∣clesiae Observ.
• * 1.338

  1 Cor. 6.10.
• * 1.339

  Es. 58.6.
• * 1.340

  Numb. 5.6.
• * 1.341

  Jonah 2.10.
• * 1.342

  Hier.
• * 1.343

  Turcicor. 5▪ c. 17.
• * 1.344

  See Book 2. Chap. 11.
• * 1.345

  Lib. 9. Lib. 8.
• * 1.346

  See Book 2. Chap. 9.
• * 1.347

  Lib. 6. c. 5. Sub Hasta.
• * 1.348

  Ant. l. 14. c. 22.
• * 1.349

  Offic. l. 1. Vide lib. 2. ch. 20. §. 2.—28.
• * 1.350

  Sen. de Clem. lib. 2. c. 4.
• * 1.351

  De Off. l. 2. Pol. 5, 6. Lib. 3.
• * 1.352

  Annal. l. 3.
• * 1.353

  Lib. 26.
• * 1.354

  Ovid Trist. lib. 1. Eleg. 1.
• * 1.355

  Lib. 2.
• * 1.356

  Lib. 26.
• * 1.357

  Pro Quintio.
• * 1.358

  Pro Ligario.
• * 1.359

  Lib. 21.
• * 1.360

  Lib. 3.
• * 1.361

  Vand. l 1.
• * 1.362

  Goth. l. 1.
• * 1.363

  Lib. 1.
• * 1.364

  Lib. 38.
• * 1.365

  Mor. l. 5. c. 10.
• * 1.366

  Non incipit is qui ex ira quid facit, sed is qui ••••am provoca∣vit. Arist.
• * 1.367

  Nic. 7.2.
• * 1.368

  De Arte Orato∣ria.
• * 1.369

  De Offic. l. 1.
• * 1.370

  De ira l. 1. c. 16.
• * 1.371

  See Book 2. Chap. 20. Sect. 29. and Sect. 3. in this Cha∣pter. Lib. 5. de Prov.
• * 1.372

  Lib. 4.
• * 1.373

  Deut. 22.26.
• * 1.374

  Lib. 7.
• * 1.375

  Leuct. ••.
• * 1.376

  Lib. 4.
• * 1.377

  Lib. 26.
• * 1.378

  Lib. 3.
• * 1.379

  Lib. 2. de clem. c. 7.
• * 1.380

  Lib. 7.
• * 1.381

  Leuct. 2.
• * 1.382

  De Offic.
• * 1.383

  Lib. 3.
• * 1.384

  Ep. ad Brut. 2.
• * 1.385

  ••ib. 2. c. 41.
• * 1.386

  Annal. l. 12.
• * 1.387

  Lib. 4.
• * 1.388

  Orat. in Ver.
• * 1.389

  Jos. Ant. l. 5. c. 1. Dion.
• * 1.390

  Ant. l. 15.
• * 1.391

  Lib. 5.
• * 1.392

  De Ira l. 3. c. 24.
• * 1.393

  Deut. 20.14.
• * 1.394

  Num. 31.40.
• * 1.395

  Jon. 4.2. De Ira l. 2 c. 9.
• * 1.396

  Plut. vita Camilli.
• * 1.397

  Lib. 24.
• * 1.398

  Lib. 8. c. 16.
• * 1.399

  Camden 1596.
• * 1.400

  L. 9. c. 1.
• * 1.401

  Lib. 13.
• * 1.402

  Livy l. 28. Ant. 12. c 3.
• * 1.403

  Lib. 5.
• * 1.404

  〈◊〉〈◊〉 10.5.
• * 1.405

  Quaest. Graec.
• * 1.406

  Lib. 8.
• * 1.407

  Polyb. l. 4.
• * 1.408

  Thucyd. l. 5. & 8 Plut. Arat.
• * 1.409

  〈◊〉〈◊〉 2.
• * 1.410

  ••y••opad. l. 5.
• * 1.411

  Goth. l. 3.
• * 1.412

  Epist. 1.
• * 1.413

  Lib. 5.
• * 1.414

  Hist. l. 4.
• * 1.415

  De pace secunda.
• * 1.416

  2 Kings 6.22.
• * 1.417

  Plut. in Ca••. Ʋticensi.
• * 1.418

  Goth. l. 1. c. ib.
• * 1.419

  Ann. Comn••nat.
• * 1.420

  Lib. 4.
• * 1.421

  See Chap. 7. towards the end.
• * 1.422

  Goth. 4.
• * 1.423

  Lib. 3.
• † 1.424

  Tac. Lib. 12. Bello Jug. lib. 1. de Rep. ord.
• * 1.425

  Plut. Tim. & Dion.
• * 1.426

  Terror.
• * 1.427

  Goth. lib. 1.
• * 1.428

  Polyan. Lib. 4.
• * 1.429

  Aen. l. 10.
• * 1.430

  De ira l. 2. c. 10.
• * 1.431

  Orat. pro Clu∣ent.
• * 1.432

  Lib. 2. c 2. §. 9.
• * 1.433

  Vict. de Jure Belli n. 52. &. 56.
• * 1.434

  Srat. c. 6.
• * 1.435

  Herod. lib. 1. Pol. lib. 4. Front. Strat. 3. c. 4.
• * 1.436

  Deut. 20.19. De Creation. Magist.
• * 1.437

  De non eden∣dis, lib. 4.
• * 1.438

  De Repub. l. 5.
• * 1.439

  Offic. l. 1.
• * 1.440

  Pro domo sua.
• * 1.441

  Lib. 26.
• * 1.442

  Josh. 6. 2 Kings 3.19.
• * 1.443

  Proc. Vand. 2.
• * 1.444

  Lib. 1. c. 66.
• * 1.445

  Sen. Th••••.
• * 1.446

  Lib. 9.
• * 1.447

  Ep. 7. 9, 10.
• * 1.448

  Oecon. 2.
• * 1.449

  Procop. Goth. l. 3.
• * 1.450

  Aelian. Hist. l. 5. 14.
• * 1.451

  Rhodog. c. 26. 19.
• * 1.452

  Vid. Plin. Nat. Hist. l. 8. c. 45. cum Lipsii An∣not. Lit. D.
• * 1.453

  Lib. 15. c. 31.
• * 1.454

  Lib. 5.
• * 1.455

  Ver. 2.
• * 1.456

  Lib. 42.
• * 1.457

  Livy l. 41.
• * 1.458

  Lib. 2.
• * 1.459

  De Civit Dei l. 1. c. 1.
• * 1.460

  In excerpt. Peires.
• * 1.461

  Severus.
• * 1.462

  Vita Ages.
• * 1.463

  Vand. l. 1.
• * 1.464

  Cassiodor. l. 12. c. 20.
• * 1.465

  In Ver. 4.
• * 1.466

  Zenoph. Hist. Graec.
• * 1.467

  Lib. 49.
• * 1.468

  Lib. 3.
• * 1.469

  Lib. 5. c. 3.
• * 1.470

  Lib. 26.
• * 1.471

  Lib. 2. c. 2.
• * 1.472

  Lib. 2. c. 2. § 6, 7, 8.
• * 1.473

  Lib. 3. c. 2.
• * 1.474

  Plut. vit. De∣metrii.
• * 1.475

  Appian. Civil. l. 2.
• * 1.476

  Plut. vit. Alex.
• * 1.477

  Captivum se, non Servum di∣cebat.
• * 1.478

  De Clem. l. 1. c. 18.
• * 1.479

  Phelim.
• * 1.480

  Epist. 47.
• * 1.481

  Coll. 4.1.
• * 1.482

  Lib. 7. c. 14.
• * 1.483

  De Clem. lib. 1. cap. 18. & Ep. 47.
• * 1.484

  De. Benes. lib. 3. c. 18.
• * 1.485

  Ep. 43.
• * 1.486

  Job. 31.13, 14, 15.
• * 1.487

  Levit. 25.
• * 1.488

  In excerp. Lega∣tionum.
• * 1.489

  Seneca.
• * 1.490

  Ep. 47.
• * 1.491

  Exod. 20.10.23.14. Deut. 10.14.
• * 1.492

  Ep. 107.
• * 1.493

  Od. 1.
• * 1.494

  Tertul.
• * 1.495

  Lib. 5. c. 15.
• * 1.496

  De moribus Eccl.
• * 1.497

  De Civit. Dei l. 19. c. 16.
• * 1.498

  Oecon. l. 5.
• † 1.499

  De benef. l. 2.
• * 1.500

  Idem de tran∣quilitate.
• † 1.501

  Procop. Goth. 3.
• * 1.502

  In Eph. 5.2.
• * 1.503

  Phorm. Act. 1. scen. 1.
• * 1.504

  〈…〉〈…〉. 7. 〈…〉〈…〉 11.1. Lib. 1.
• * 1.505

  Peculium.
• * 1.506

  Lib. 7. de Ben.
• * 1.507

  Dionys. lib. 1. Lib. 8. Ep. 16.
• * 1.508

  Lib. 2. c. 3.
• * 1.509

  Lib. 3.
• * 1.510

  Deut. 15.13.
• * 1.511

  Lib. 2. c. 5.
• * 1.512

  Deut. 15.13.
• * 1.513

  Lib. 27. c. 18.
• * 1.514

  Graec.
• * 1.515

  Cyropast. l. 2.
• * 1.516

  Vit. Demet.
• * 1.517

  Strabo l. 7.
• * 1.518

  Jugurth. De Rep. l. 7. c. 14, 15. & c. 10. De Off. l. 1.
• * 1.519

  De Civit. Dei l. 4. c. 15.
• * 1.520

  Lib. 5. cont. Julian.
• * 1.521

  Lib. de Ira c. 34.
• † 1.522

  Annal. l. 5. Lib. 1.
• * 1.523

  Sen. Troad.
• * 1.524

  De Clem. lib. 1. c. 21.
• * 1.525

  Lib. 6.
• * 1.526

  Livy lib 32.
• * 1.527

  Lib. 1. ad Quintum Fra∣trem. Epist. 1.
• * 1.528

  Hist. l. 4.
• * 1.529

  Lib. 2. c. 15. § 7.
• * 1.530

  Plut. Quaest. Rom. qu. 15.
• * 1.531

  Lib. 37.
• * 1.532

  Plut. vit. Alex.
• * 1.533

  Lib. 27. Val. Max. 4. 1.
• * 1.534

  Plato de Leg. 3.
• * 1.535

  Lib. 4. de Rep. cap. 11. lib. 5. cap. 7.
• * 1.536

  Ann. 6.
• * 1.537

  Lib. 15.
• * 1.538

  Lib. 17.
• * 1.539

  Leunclav. lib. 18. Lib. 1. c. 3. § 17. Lib. 3. c. 8. § 3.
• * 1.540

  Lib. 10. Ep. 56. & 14. Lib. 3. Ep. 113.
• * 1.541

  Vit. Agr.
• * 1.542

  Lib. 8.
• * 1.543

  Curt. lib. 9.
• * 1.544

  Lib. 13.
• * 1.545

  Lib. 5. de Be∣nef.
• * 1.546

  L. Latrones. D. de Captivis.
• * 1.547

  Aegid. Regius de Act. supern. dist. 31. dub. 7. n. 122.
• * 1.548

  Can. 10.
• * 1.549

  Lib. 3.
• * 1.550

  Lib. 10.
• * 1.551

  Lib. 24.
• * 1.552

  Hist. l. 2.
• * 1.553

  Plut. Apotheg. Appian Puni.
• * 1.554

  Lib. 1. c. 1. n▪ 6.
• * 1.555

  Orat. Ver.
• * 1.556

  Lib. 37.
• * 1.557

  Lib. 31.
• * 1.558

  Lib. 33.
• * 1.559

  Strab. l. 13.
• * 1.560

  Lib. 2. c. 10. § 9.
• * 1.561

  Gen. 13.16. Vers. 20, 21, 22, 23, 24.
• * 1.562

  Dan. 5.17.
• * 1.563

  Lib. 6. c. 5. n. 1. See above Book 2. Chap. 14. Sect. 6. Book 3. Chap. 4. Sect. 1.
• * 1.564

  Liv. lib. 2. —lib. 73. Xenoph. Hist. Graec. lib. 3.
• † 1.565

  See above Ch. 10. Sect. 6.
• * 1.566

  Liv. lib. 34.
• * 1.567

  Lib. 2. c. 4.
• * 1.568

  Mariana lib. 29. c. 14.
• * 1.569

  Book 2. Ch. 11. Sect. 10.
• * 1.570

  Xenophon.
• * 1.571

  Lib. 2.
• * 1.572

  Pro Lege Mani∣lia.
• * 1.573

  Plut. Pomp:
• * 1.574

  Lib. 2. Strat. c. 2.
• * 1.575

  Lib. 5.10. Lib. 11. c. 13.
• * 1.576

  Procopius.
• * 1.577

  Goth l. 3.
• * 1.578

  Lib. 9.
• * 1.579

  Ammianus. Pa∣catorum tellus non debet cal∣cari.
• * 1.580

  Hist. Nat. l. 26. c. 4.
• † 1.581

  Cassiod. 14. c. 1••.
• * 1.582

  Vopis. lib. 18. Aurel.
• * 1.583

  Exped. l. 6.
• * 1.584

  Luke 3.14. Accuse no man: for, oppress or defraud no man. Psal. 118.121. Prov. 14.33.22.16. Levit. 19.11.
• * 1.585

  An Appletree in a Camp.
• * 1.586

  Lib. 28.
• * 1.587

  Lib. 40.
• * 1.588

  Ann. 12.
• * 1.589

  Aegid. Regius de act. supernat. disp. 31. dub. 7. n. 95.
• * 1.590

  Lib. 3. c. 1.
• * 1.591

  Lib. 3. Goth lib. 1.
• * 1.592

  Camden Ann. 1589.
• * 1.593

  Livy lib. 36.
• * 1.594

  Lib. 37.
• * 1.595

  Plut. Brute.
• * 1.596

  Lib. 35.
• * 1.597

  Plut. Quaest. Rom. 39. & de Mar∣cello.
• * 1.598

  De Ira. c. 9.
• * 1.599

  Bo. 3 ch. 6. Supra l. 3. c. 7.
• * 1.600

  Livy lib. 7. Plut. paral. Rom. &. Grae. paral. 12.
• * 1.601

  17.6.
• * 1.602

  Lib. 2. c. 17.
• * 1.603

  Serv. ad 8. Ae. nead.
• † 1.604

  Bo. 3. ch. 6.
• * 1.605

  Lib. 2. c. 1.
• * 1.606

  Lib. 3. c. 2.
• * 1.607

  Leuct. 4.
• * 1.608

  Lib. 2. c. 29.
• * 1.609

  Ep. 205. ad Bonif.
• * 1.610

  Appian. Civil. 4.
• * 1.611

  Lib. 2. c. 13. Sect. 5.
• † 1.612

  Lib. 7. de Be∣nef.
• * 1.613

  Ad 5. Nicom.
• † 1.614

  Sen. in excerp. 4. 7.
• * 1.615

  In Sect. Homi∣cid. n. 56.
• * 1.616

  R. Levi Ben. Gerson. in Le∣vit. 20.10.
• * 1.617

  Offic. lib. 3.
• * 1.618

  Lib. 2. c. 11. § 7.
• * 1.619

  Lib. 3. c. 4. §. 10.
• * 1.620

  Lib. 1. c. 4.
• * 1.621

  Aelian. 6, 7.
• * 1.622

  Lib. 11.
• * 1.623

  Sen. de benef. l. 3. c. 37.
• * 1.624

  Lib. 5. c. 3.
• * 1.625

  Orat. pro Balbo. Lib. 3.
• * 1.626

  Plut. vit. Grac∣chi.
• * 1.627

  De Offic. l. 3. Ver. 4.
• * 1.628

  Lib. 6. c. 6.
• * 1.629

  Book 2. Ch. 7. § 2.
• * 1.630

  Tertul.
• * 1.631

  De benef. lib. 6. cap. 4.
• * 1.632

  Eod. Lib. c. 6, 7.
• * 1.633

  Eod. lib. c. 4.
• * 1.634

  Ib. c. 6.
• * 1.635

  De Benef. lib. 7, cap. 15.
• * 1.636

  Lib. 2. c. 2.
• * 1.637

  Philost. l. 3. c. 6.
• * 1.638

  Lib. 2. c. 11. & seq.
• * 1.639

  See Bo. 2. ch. 15. §. 3.
• * 1.640

  Bo. 1. ch 3. §. 24. Francis King of France (be∣ing Prisoner to Charles the Fifth Empe∣rour and King of Spain) his case about the Dutchy of Bur∣gundy. See Lord Herberts Hist. of H. the 8^th pag. 193.
• * 1.641

  Bo. 2. ch. 5. §. 17.
• * 1.642

  Lib. 32.
• * 1.643

  See above Bo. 2. ch. 6. §. 3. and what fol∣lows.
• * 1.644

  See Bo. 2. ch. 15.
• * 1.645

  See Bo. 2. ch. 3. §. 10, &c.
• * 1.646

  See Bo. 3. ch. 8. §. 2.
• * 1.647

  Bo. 3. ch. 6. §. 2.
• * 1.648

  See Bo. 2. c. 16. §. 12.
• * 1.649

  Livy, lib. 34.
• * 1.650

  See ch. 9.
• * 1.651

  Lib. 3. c. 6. §. 4.
• * 1.652

  Lib. 3. c. 7. §. 4.
• * 1.653

  Thucyd. l. 3.
• * 1.654

  Thucyd. l. 5.
• * 1.655

  Livy lib. 33.
• * 1.656

  De Offic. lib. 3.
• * 1.657

  Dionys. Hal.
• * 1.658

  Lib. 3.
• * 1.659

  Orat. pro pace.
• * 1.660

  Cic. de Offic. l. 2.
• * 1.661

  Quintil. Dec. 248.
• * 1.662

  Persa.
• * 1.663

  Peace broken three ways.
• * 1.664

  Thucyd.
• * 1.665

  Lib. 29.
• * 1.666

  Pers. 2.
• * 1.667

  Vand. lib. 2.
• * 1.668

  Paus. lib. 9.
• * 1.669

  L 2 c. 21. § 2 & eq.
• † 1.670

  Lib. 7.
• * 1.671

  Aul. Gel. l. 7. c. 3.
• * 1.672

  Lib. 17.
• * 1.673

  Livy l. 5.
• † 1.674

  See Book 2. Ch. 16. § 13.
• * 1.675

  Graec. Hist. l. 6.
• * 1.676

  Yet small of∣fences are to be referred;
• * 1.677

  Lib. 3. c. 19. §. 14.
• * 1.678

  Pro Gabin.
• * 1.679

  Lib. 2. c. 5. §. 24.
• † 1.680

  Lib. 42.
• * 1.681

  Leuctr. 2.
• * 1.682

  Lib. 2. c. 5. §. 24.
• * 1.683

  Lib. 2. c. 21. §. 3. & seq.
• * 1.684

  Lib. 2. c. 7. §. 12. & lib. 2. c. 19. §. 5. c. 21. §. 1.
• * 1.685

  Aq. 2.2. c. 95. A••t. 8. & ibi Cajetan.
• * 1.686

  Lib. 3. Guic. lib. 1.
• * 1.687

  Herod. lib. 1.
• * 1.688

  Thucyd. lib. 1.
• * 1.689

  Lib. 16.
• * 1.690

  Lib. 29.40.
• * 1.691

  Lib. 2. c. 22.
• * 1.692

  Praef. Nat. Hist.
• * 1.693

  Albericus Gen∣tilis. See pag. 335.
• * 1.694

  Lib. 2. de be∣nef. c. 7.
• * 1.695

  Rhet. 1. c. 19.
• * 1.696

  Equity, what.
• * 1.697

  Lib. 37.
• * 1.698

  Lib. 14.
• * 1.699

  Lib. 37.
• * 1.700

  Above, Book 3. Chap. 8. Sect. 4.
• * 1.701

  Above, Book 3. Chap. 11. Sect. 18.
• * 1.702

  See Book 3. Chap. 15. in finem.
• * 1.703

  Lib. 1. c. 3. § 17.
• * 1.704

  Liv. lib. 2.
• * 1.705

  Appian.
• * 1.706

  Book 2. Ch. 16. Sect. 18.
• * 1.707

  See Book. 3. Ch, 15. § 18. Alb. Gent. l. 2.
• * 1.708

  Book 2. Ch. 4. Sect. 17.
• * 1.709

  Nic. 8.
• * 1.710

  Ad 6. Nic.
• * 1.711

  Ad Ter. Eun. Act. 1. Scen. 1.
• * 1.712

  Lib. 3. c. 16. §. 20.
• * 1.713

  Gell. l. 19. c. 8.
• * 1.714

  Livy, Plut. Ju∣stine.
• * 1.715

  Livy l. 4.
• * 1.716

  Met. lib. 2. c. 17.
• * 1.717

  Suet. in Caes. c. 81.
• * 1.718

  Lib. 28. cap. 7.
• * 1.719

  Aenead. lib. 11.
• * 1.720

  Liv. lib. 31.
• * 1.721

  Lib. 42.
• * 1.722

  Proc. Goth. 2.
• * 1.723

  Book 3. Ch. 9. Cic. l. 2. de inv.
• * 1.724

  Book 3. Ch. 19. Sect. 19. & Ch. 20.36.
• * 1.725

  Book 2. Ch. 16. Sect. 12.
• * 1.726

  Diod. Sic. lib. 17.
• * 1.727

  Lib. 2. ch. 13.
• * 1.728

  Bo. 3. ch. 4,
• * 1.729

  Matt. 25.36.39. De Offic. l. 2, c. 28.
• * 1.730

  Causa. 12. q. 2.
• * 1.731

  Lib. 2. c. 26.
• * 1.732

  Lib. 3. c. 7. §. 4.
• * 1.733

  Bo. 2. ch. 11. §. 22. & 15. and in this Book ch. 20. §. 58.
• * 1.734

  Lib. 4.
• * 1.735

  Lib. 3.
• * 1.736

  Bo. 2. ch. 4. §. 5. &. ch. 15. §. 17.
• * 1.737

  Lib. 2. c. 12. § 18.
• * 1.738

  Lib. 24.
• * 1.739

  Just. l. 40.
• † 1.740

  Liv. l. 30.
• * 1.741

  Bartol. in L. Conventio.
• * 1.742

  Book 3. Ch. 19. Sect. 2.
• * 1.743

  B. 2. ch. 11. § 6.
• * 1.744

  Ch. 22. Sect. 7.
• * 1.745

  Book 1. Ch. 4. Sect. 7. 21. Book 2. Chap. 14. Sect. 12.
• * 1.746

  ☜
• * 1.747

  Lib. 7. c. 18.
• * 1.748

  Goth. l. 2.
• * 1.749

  Goth. l. 3.
• * 1.750

  Lib. 1.
• * 1.751

  Liv. 38.
• * 1.752

  Lib. 10. c. 6.
• * 1.753

  Liv. l. 42.
• * 1.754

  See Bo. 3. c. 1. §. 6. &c. Livy l. 26. lib. 30.
• * 1.755

  Lib. 18. Lib. 26. Lib. 22.
• * 1.756

  Pliny l. 15. c. 30.
• * 1.757

  Bo. 3. ch. 4. §. 15. & Bo. 2. ch. 15. §. 17.