M V i u s ■ • - ■ Tv-AV: r "/-'"-iV'X ; --'"' :: ."",. W- - _ =- - ' ^-«r - e=: m . ■ | ■ w k^^ ssaMa mMmWMMMMBK S%5&!? •»- ~~ ,1 THE MOST EXCELLENT HUGO GROSjlUS His TH Wa^|A^^ B O G ] W Treating of the RIGHTS WAR&PEACE. In the Firft is handled, Whether any War be Juft. In the Second is (hewed , The Caufes of Wa!,both Juft and Uujuft. In the Third is declared , What in War is Lawful • that is, Unpunifhable. With the Annotations digefted into the Body of every Chapter. Tranflated into ENGLISH by W ILLIAM EVATS, B. D. LONDON, Printed by M. W. for Thomas Baflet at the George in Fltetftreet , and Ralph Smith at the Bible unde r ife Pf-ctza of t he Royal Exchange in CornbilL MDC L XX XII. THE ISTLE TO THE H £ Author of this Tranflation was by Profeflion a Divine, Eminent for Learning, and well skill'd in the Civil Laws. He was a great Admirer of the Works of Hugo Gr otitis, and valued him particular- ly upon this Treatife of the Rights of War and Peace ; wherein finding matter fit for a general communication , he thought it well worth his time to Tranflate. It was the Labour, or rather Paftime of the laft Seven Years of his Life to perfect it ,- which he intended to Print during his Life : And fo we found it in his Study after his death. And although it added nothing to the talue of his Eftate • yet we ( to whom he committed the care of all the reft ) thought it our duty to make this Publick , believing it * would To the Reader. would prove a more durable Monument to prelerve his Memory, than any other we could raiie unto him. " Whileft it was in the Original, it was a Jtwel, but hid from Vulgar Capacities ; it is no lefs a jewel now it is made intelligible to every Ca- pacity. We fhall not enlarge this Epiftle in Praife ei- ther of the Work or the Author, the Tranflation being fufficient for both, if thou wilt take the pains to Read it. John Nelbam. Nov. 1 68 1. Thomas Whitfield, THE THE !FAC feg?g>g Pv*%*y H E Civil Law 5 whether that > proper to the Romans, or that appertaining to any other people, many haVe endeavoured either to expound by large Commentaries, or to expofe to prcjentvicw byEpitomies : 'But of that Law, lt>hkb go* Verns moji Nations, and the Rulers ofdiVerJe People, whe* ther it arife from Nature, or t)e Inflitutedby DtVme Autho* rity, or whether it be introduced by Cuflome or Tacite Confent, few ha\>e hi* thtrto treated ; and ilmie at all either UniVerfally or Methodically : though fuch a 'lreatife would highly conduce to the 'Benefit of Mankind. The Excellency nefs of this* of this Science , jaith Seneca, is feen in Leagues, Covenants , Ar- Trei:ife - tides of Agreement , and Conditions made between diverle free people, and between Kings of Foreign Nations , and in all the Rights of War and Peace. Jnfomuch, that Euripides prefers it before all other knowledge of things either Divine or Humane ; faying, It's vain, of Things, of Gods, or Men, to boaft, Pail or to come : unlefs what's Juft thou know'ft. And indeed, Juch a Treatife toould be fo much the more neceffary , by how much we find many a* well in this, as informer Ages, contemning this part of Error con" Jujhce, as if there were nothing in it but an Empty Name. There is nothing - more freauent in eVery mans mouth, than that of Euphemus wThucydi- des, To Kjngs and Cities Imperial, there is nothiyig Unjuji, that is Profitable. And that alfo which the Athenians ( being then the mojl Potent Party in all Greece ) told the Metians, To humane reafon, thofe things are Juil, which an Equal Neceflity on both fides impofeth : otherwife, what- (bever the ftronger Party can and will do, the weaker Party muft fuffer. As if it t»ere in the power of Fortune to make Opprejfton jujl ; or, that no Commonwealth could be mllgoVerned without hjujltce. WI?ereunto A f they Rights of lib. 6. 11 The Preface, they ufnatty add, That the Sword is the Common Judge or Arbiter of all dif= ferences arijing between Kings and Foreign Nations. Neither is this the opU nion of the Vulgar only, That all Laws are filenced by War ; but fome fuch like fayings do often fill from Men otherwise Learned and Prudent, whereby this Opinion gathers flrength. There being nothing more frequently oppofed one to another, than Law and Arms : Tims we find them oppofed in Enneus, — ^-to gain their Right, Not at the Law, but with their Arms, they fight. The like ive find in Horace, who f peaking of Achilles, faith, Nothing by Law, but All, by Arms, he claims. Old Antigonus laught at him, who beholding him bufied in battering the AiUr.Gtnt. Forts and Cities of his Enemy, prefented him with fome Commentaries ofjuflice. Marius was wont to fay, That he could not hear the Cry of the Laws, for the Clafhing of Arms. Lyfander in Plutarch, laying his hand upon vint.iyf. fa Sword faid, He that knows how to ufe This, is the beft Judge of the Bounds of Empires. To the fame purpofe was that o/Caefar, Non eft Idem tempus Armorum, quod Legum ; Arms and Laws do never flourifli at one and the fame time. Kings, faith Seneca, grant many things blindfold, efpecially in times of War: for no one man, though Juft, can poflibly fatisfie the defires of fomany Armed Men ,• neither can any one man at the fame time perform the Office of a Good Man , and of a Good General. Nay, even Pompey himfelf, though otherwife e frould admit a Faculty of knowing and doing k-dgetJcT things according to fome General <%ules, whereunto what foederis agreeable, is nerai Rules. not j Q t0 a \\ \\-\, tn g creatures, but peculiarly to mankind only. Homo ad ub 9- idnatus eft, bene ut aliis faciat, &-c. Mm, faith M. Antoninus, was born for this end, to do good unto others. And again, ^Sooner may we find Bodies Terrefhial not tending to the Earth, than a found and perfect man, not affecting the fociety of men. For as he fpeaks in another place, Quod ratione unitur neceffario Ccetum ap- petit ; Whatfoever hath the Faculty of Reafon , muft neceflarily affect The Preface. v affect Society. To the fame purpofe is that alfo o/Ntcetas Coniates, Na- L ' b - '°- ture her ielf hath infculpt and ingenerated in us, a mind eafily con- See A '<- dl - , . • 1 i r r i • i it • i rf DoHr.ibrifl. tentino and agreeing with thole or our own kind. Neither can J here M.3.C.14. omit that excellent faying of Seneca, That thou rriaift underftand, how defiderable a thing of it (elf it is, to have a thankful mind ; and how odious a thing Ingratitude is : Know that there is nothing {boner dilTolves and disjoints Humane Society, than this Vice of Unthank- fulnefs. For wherein otherwife confifts our fecurity, if not in thofe mutual good offices, that we do one to another ,by which Commerce and Exchange of Courtefies only,our lives are ftrongly guarded and fortified againft all violent Incurfions whatfoever. Take 11s fin- gly, and what are we but a prey to all other creatures ,• and as fo many facrifices, to appeafe the hunger or rage of ravenous beads ? No Blood fo vile, none fo eafily purchaled as ours. All other creatures are fuffkiently guarded againft all violence. Whatfo- ever is born wild and unlociable, comes into the world armed ; only man comes naked and infirm, having neither Hoofs, Horns, Claws nor Teeth, to make him to appear terrible to the reft ; on- ly two things Nature hath given him, whereby both to offend others, and to defend himfelf, namely, Reafon and Society. By theie, he that being fingle, is weakeft of all , becomes Lord and Mafter of all : It is Society that gives him the dominion over all other creatures ; it is Society that transfers Empire from one Nation to another, extending it felf over the Seas alfo ; it is this that mitigates the violence of Difeafes ; it is this that yields Com- fort to old age -, this affwageth grief and pain ; this makes us ftrong, valiant, nay, invincible : For as much as we may law- fully crave its afliftance, even againft Fortune her felf. Take away this, and you break afunder that Unity that there is be- tween mankind, whereby our lives are fuftained : And it is cer- tainly taken away, if Ingratitude be not in it felf odious. Tina far Seneca. Now this <~very conferVation of Society, as it is agreeable to humane un- Concerning derftanding, though but crudely here expreft, is the foundation of that which lilt Dole"* is properly called ( I(ight. From whence arijeth our abfiinence from that which [hef r young, is anothers . and our reftorim of that which we ba~\>e detained . together { f c p « r ^rr r t r 1 it- a it i • t denonefu l.$. with the full profits we ha~\>e made of it : As alfo our obligation to perform Society the our promifes, our fatisfaSiion for damages done unto others through our de- Law. fault , and the merit ofpunifhment among men. For Juflice is by Por- f^y ™ e T n. phyry thus defcribed, Ut abftineretur alienis, neque noceatur non Dlnmt j H t.j, nocentibus ; To abftain from what is anothers, and not to harm them that are harmlefs. From this fignifcation of the word %jgbt, there flows another of a larger a . More large- extent. For feeing that man above all other UYing bodies, hath not only y ' fuch a laudable Faculty as is defcribed, but Judgement alfo to difcern } as well (a) what VI The Preface. what is pkafant and delightful , as what is hurtful unto it felf : And that not only r,t prefent , but for the future , and what may lead unto either. Is is therefore agreeable mofl to humane Nature , according to the meafure of humane underjlanding, to be guided in thoje things by a Judge* ment rightly informed ; J mean, fuch a judgement, as is not mi fled, ei* ther by who others at Jo have J aid, held that all was lawful that wasp;o- What's Juft and Equal doth from Profit fpring, fitabk - if Jpoken properly is not true ; For the Law of Nature is the product of Hu- mane Nature itfclf: Which although we JJ?ould want nothing, yet would, of it f elf, carry us to a defire of Humane Society. The Civil Law then ac* knowledgeth no other Mother, than that Very obligation which arifethfrom Con- fent, which becaufe it derives its Authority from the Law of Nature ; Tlierefore may Nature be J 'aid to be (as it were Grand-mother to this Law. But eVen from the Very Laiv of Nature there arifcth fome profit ; For God who is the Author of Nature, was ivilling that eVery man in himfelf fingly confidered, fhould be infirm and defective of many things conducing to a good life, the more Jlriclly to engage us to affect Society. But it was common profit, I grant, that occafi* oned the Civil Law : For that Very Confociation or Subjection (whereof we IxiVe fpoken ) was fir ft inflituted for fome utility : yea, and th&y that prefer -ibe (a) i . Lam Vlll The Preface. The Law ©f Laws unto others, either do, or pouldpropofe fomething of profit eVen there* in. But as the Municipal Laws of eVcry City do mainly regard the bene ft of that City , eyen fo among all, or at leaf the mofl Cities, there may, nay cer= tainly are, jome Laws by common conjent agreed on, which refpecl the beneft not of thoje particular Cities, but of all in general. Aid this that we call Nacions. the Law of Nations, fo often as we diftingwfh that Law from the Law of Nature, which in that Partition Carneades made of all Laws into Natural and Civil only, was omitted. Whereas notwithflanding being to treat of that (Rjght ivhich was betweenNations (for be fubjecled his difcourfeto War and things got by War) he ought mofl ejpecially to hale mentioned tl is Law. 'But ouToun^ro- whereat he traduceth Jufiice, by calling it folly, he doth ill. For as by bis enc" to the own ^ on ffj mt t That Citizen is no Fool who obferVes the Civil Laips of the City Laws of Na- he lives in, although he (for the reference he bears unto thofe Laws) omits ons, is.wif- jome things that would bz profitable to hmifelf: So neither is that afoolifl? people who haVe ?iot fo great an efieanfor their own private gain, as for it y to trample upon the Laws Common to all, or to mofl Nations : There being the fame reafonfor both. For as he that for his pre] ent profit, pall ^violate the Laws of the Countrey < be lives in, doth as much as inlnmlies, butdeflroy that, which JJwuld perpetually defend both him and his, in whatfoeVer he hath or p?all acquire ; fo alfo a people in Violating the Laws of Nature and Nati* ons, do but pull dolDn. thofe Bulwarks, that flmuld thenceforth feenre their And why. own peace andfafety. For as M. Antoninus well obferVes, Whatfoever Action it is, that aims not , either directly or mediately at the good of the Common-wealth, takes away the life>of it, by diflbl- ving the connexion of all its parts, and is no lefs feditious than he that Heads a Party feparate from the body of the people : For one man feparated from another, cannot but be feparated from mankind ?rov. in general. For, Quod examini expedit idem &Api; As what is good for the Hive, is good for the Bee ; lb what is profitable to the Common-wealth, is fo likewife to every Citizen. So then, Although by our Conformity to the Law, we could expetl no profit at all to our felVes, yet ivould it be a point of wifdom rather than folly, to fuffer our fives to be carried thither, whither we may perceive our JelVes to be led by the manuduc~li= on of Nature. Wherefore neither is that altogether true, For fear of wrongs, good Laws invented were. As if men were enforced to bejuflfor fear of punijlnnent only ; for this belongs to fuch Laws and Conflitut ions, as are found out to be mofl expedient for the Lawslnvenr- better execution of this Law. As when a multitude of men, finding themfelves ed for mutmi Jbigly and apart, unable to defend themfehes, flmll unite and confpire with their common and joynt forces, to inftttute and to defend fuch Laws and Courts of Judicature, as flmuld punifh thofe who fhould attempt to opprefs them ; fo that what they cannot do fmgly, they may be able to do with an united force. And in this fence that may Very well be underflooA, which is ufually faid y That is The Preface. IX is juft which pleaieth the moft powerful party. Whereby "»# mayun* ^"/HJ"^ derfl and, that the Law it J df without a power to defend it, lojeth its external jUcuit. force, and Jo becomes fruitlefs : which made Solon to boaji Tt>hdt gallant things power to de- fend cheinare he bad done, trmkiL By coupling Might, in equal yoke, with Right. (But yet neither is the Law, though it want a force fufficient to abett it , alto* Externally. gether fruitlefs ; becaufe it begets Peace and Tranquillity ofConfcience : where= Not imemai- as on the contrary, Injufice doth "bound and torment it, as Plato injlanccth ly- in thoje of Tyrants. Befides, Jnjlice is approved of and Jnjuftice condemned by the confent of all good men, yea, and what is tbegreatejl comfort of all, This, hath God for its Avenger, That, God for its Matron, whofo rejerVes his Judg- ments after this life, that he ofttimes gives a tafte af them, eVen in this; as we are taught by many examples in Hijlories. But whereas there are many tjm- Law of that think it fuperfluous, to require that Jujlice from a free people or their G o- beneficial. Vernors, which they cxaEl daily from private men ; the ground of this error is this, Becaufe thefe men refpefl nothing in the LalV, but the profit that arifeth from it, which in Private Perfons, being Jingle and unable to defend themfelves, is plain and evident: but for great Cities that feem to have within them f elves, all things neceffary for their own well-being, it doth not jo plainly appear, that they haVe any need of that Virtue (called Jujlice) which rejpeSls Strangers. But not to injijl upon what hath been already J aid , namely, That all Laws were not ordained for Profit only, there is no City fojlrong and of it J elf \uffi» cient, but may fometimes Jland in need of Foreign Aid, either by Vpay of Com* merce or to defend it felf, againfl the united forces of many Foreign Nations confederate againfl it : Therefore we fee, that the mofl potent Princes and States, haVe always been de fir ous of Leagues, which would be of little ufe or force were all Laws and Jujlice confined within the bounds of any one City only. Mojl true it is, That as foon as we recede from the Law, there is nothing no comma. that we can certainly call ours : if no Community can poffibly Jubfijl without £"* c w " h f ^"c Laws ( "which Ariilotle proves by that notable example of TlneVes ) furely, Lavvs - that which knits together either all mankind, or divers Nations amoiw them-' JelVes, had need offome Law to prcferVe it ; which he well knew, who held that a man ought not to do a wicked atl, no not for his Country. But fome A d Eph. 4. may fay ( faith Chryfoftom ) How comes it to pafs then that Thieves No not of live in peace ? But when ? I pray tell me, faith be ; Surely when they Thiers; ceafe to act as 'Thieves : For when they obferve not the Rules of Ju- ftice in dividing the {poil, in not giving to every one his equal iliare, thou flialt quickly fee them engaged in War and Combats among themielves. Plutarch reciting that Saying of IQng Pyrrh us, That he would leave his Kingdom to that Son who had the fliarpeit Sword ; faith, Tliat it was (of aid, only to excite them to enrich his Houfe with Blood and Rapine : Whereupon he breaks out into this exclamation, Adeo infbeia- bile x The I 3 RHFACE, bile, ferinumcjue eft propofitum plus fuo habendi ■> So wild and un- iociable a thing is Covetoufneii. Ariftotle feems exceedingly to blame them, who though thy Are not willing to admit of any Z\irg y or Governor, oVer themJelVes , but him that hath the true %iglt ; yet regard neither (ftjgbt nor Wrong in the Government of Foreigners. The Lacedemonians (faith Plu- tarch; place the greateft part of Honefty in their Country's profit : put. A S ef. Jus aliud nee norunt, nee diicunt , quam unde Spartam putant pofte augeri ; Thev will neither know or learn. any other Law, than how to enlarge their Territories. The like Character do the Athenians rive ; of them, in Thucydides, That among therafelves, and to their own moviavspeder Civil Laws, they were very juft i but as to Strangers, they efteemed More hone- exevy thing honeftthat was pleafant, and every thing juft that was fty * profitable. 'But yet when one of the Spartan Kjngs pronounced that Com- which Pom- mon^ wealth happy, which was bounded by the Sword and the Spear ;. Pompey 5 ' correclinghm, faid, Yea rather that Commonwealth is truly happy, that is on every fide bounded with Juftice. For which he might alfo haVc produced the Authority of another Spartan JbQng, who preferred Juftice even before Military Trowefs. Upon this Very ground, becaufe all Martial Tower ought to be regulated by Juftice, for in cafe all men were jiff, there "would be no need of njalour. T [Fee pre Even Fortitude it felf is by the Stoicks this defined, to be Valour contend* Lnkutk. mg for juftice : When Agefilaus in Plutarch heard the Perfian I\ing filed Great, He demanded, Quomodo me major, nifi fit & juftior ? How is he greater than my felf, unlefs he be more juft ? Themiftius in his Oration that he made to the Emperor Valens, elegantly difcourftng hoTt> things d to be ex- ft°'dd be qualified, if Wifdom were to chufe them, faith , Not iuch as fhould ail think themielves en trufted with the care of one fingle Nation only* but of all mankind ; neither fliould he profefs himfelf to be a Friend to the Macedonians only, or to the Romans, but to all M en and all Na- tions whatioever. . Js^A. Antoninus Jometimesfaid of himfelf, Civitas & Patria mihi eft, ut Jntonino, %oma ; ut Homini, Mundus : As lam di w» tfn a- Jntmhus, Qome is my Country : as I am a Man, the World. So alfo ximal <. 9. i-ii • -ill r ■ 1 ■ r 1 r • n~ r { Porpnyry, He that is guided by realon carries himlelr morrenlively towards his own Subjects, yea and towards Strangers, yea- and to- see cyrii a- w-ards a ^ men. Quanto ratione prxftans, tanto Divinior-,- The gawft juiitn, more he partakes of Rea(bn,themore he partakes of the Divine Na- ture. 7 he rvety Home of Minos was odious to Toftenty, for no other rea~ jon, but, becaufe he extended his Juftice no farther than Hs Dominions : At- tended to ■Nations Each Country groaned under Minos Yoke. That even in Now what feme ha~ve fan/ted* namely. That, Inter ArmaceiTant Leges, 1 nat even in J n • r r r 11 War fome In war all Laws lye afleep, is Jo far from truth, that no War owht to be force. ' undertaken, but for the profecution of a mans ^jght ; nor any that is underta- ken, managed beyond the bounds of Juftice and Faithfulncfs: It ~fyas Very well jaid The Preface. xl faid of Demofthenes, That War might juftly be made againft thole, who cannot be compelled to do us right in a judicial way. Now againfl juch as are Jenfible of their own weakncf?, Judgments arc forccable enough, and jo no need of War : 'But againjl juch as are, or think themfelVcs of equal Jlrength, if they will not do right. War maybe jujlly undertaken, which alfo that ( they may be altogether righteous ) muji be managed with as much Confcience, as judgments are ujually pajfed. Admit then that Laws mayjleep in themidjlofWars, yet they muji be thofe only that are Civil and Judicial j But fuch only fuch I mean as are proper to peace, but not fuch as are perpetual and fitted un- and judidT'! to all times. It was °i<« dwtio and pious War. Thefe Very ancient Romans (as Varro notes) were 17." rftery flow in making War, and not Very licentious when they did make it, be* caufe they approved of no War but what was pious. Camillus was wont to jay, That War was to be waged with no lefs Juftice than Valour. The like Tefiimony doth Scipio the African give of the Teople of Rome in his time, namely, that they always began and fnifl)ed their Wars jujlly : And another Author tells uf, That there are Laws for War as well as for Peace. A third admires Fabritius for a gallant Soldier, but principally for t-iat which in War was ho haVe 710 regard to Ju» Wtsfricnds^^^' t0 Vttyf t0 Fdelity. Now upon the ^eafons aboVe recited, concluding with my felf that there was a certain Law common among Nations, guiding them as well to , as in the The Authors Wars, J had many, and thofe but none, as yet, haVe done it. Neither indeed can it be done, wilefs ( what no man hath yet taken fuffkient care of) thole Laws which are ejlablijhed by Hu- mane Authority , be rightly feparated from thoje that are "Natural. For the Laws of Nature being alwayes the fame , may eafily be collected into an Art : 'But thoje that arife .by Conjlkut\on, jeeing that they are both often changed, and are alfo diVerfe in diverfe Nations, are put without Art, as the Collections of fuch things as are ftngular. 'But if the Dotlors of true Jit* flice, would but undertake to treat of the parts of Natural and Perpetual Ju* rifprudence, jetting afide what hath its rife from the Freedom of the Will ; fo that one would treat of Laws, another of Tributes, another of the Office oj a Judge , another of the Conjecture of Wills ; and another , of the proofs of Matters of Fatl. Then by a Collection of all the fe parts, a Body may be compofed. But what Method we thomht fit to ufe. wehaVe finite d rather in deeds The Author's than words, in this Treatije, which contains that ptirt of Jurij prudence, which is by far the mofl Noble. For in thefirft Book, having difcoVered the Ori* SSfSr? , ginal ofpight ; we haVe handled this General Queflion, Whether there be Book - any War that is Lawful ? And next, to the end that the difference be* tween a publick and private War, may- be the more eafily dijcoVercd , we thought fit to explain the Jujl Rights of the Supream Tower, what People may haVe it, and"what IQngs : and which of theje haVe it, either fully , or in part only. And again, winch of them may haVe it with a Power of Aliena* ■ tion, and which otherwife : And then we were to fpeak of the Duty of Subjects towards their Lawful Prince, or to their Super iours. Our fecond Book, undertaking to expound all the Caufes from whence a °[ ^ Sc. War may arife, fliews at large, what things are common, and what private $ what Pjght perfons may haVe over perfons ; "what obligation arijeth from Dominion ; by what P(ule IQngly fticceffion is guided ,• what Plight arijeth from Covenants and Contracts j what Interpretation is to be made of Leagues ; "what Force, and what Interpretation is to be made of Oaths, both publick and private ; what may be due for damages done ; what Sanctimony is due to Em* baffadors - 3 what ( ^jght to bury the dead ; and what the nature of punijlmients . are, and the like. Our third Book, treating of that which is in War lawful, and having di* of the third. flmguijhed between that which is not punifimble, or that which among foreign Natio)is is defended as lawful, and between that which is ahogethr blame* lefs, defcends afterwards to the feVeral kinds of Peace > and to all Covenants or Agreements made in War , which appears for this reafon to be ipcrtb our ( b ) pains, XiV The Preface. pains j becauje ( as I haVeJ aid) no man hath eVer yet treated upon this Jub- jccl j and they that haVe handled the parts of it, haVe left "Very much to other mens Indujlry. There is nothing of th'vs fubject extant from the old Thilojo- phers, neither of the Grecians, ( among whom, Ari&otle indeed y hadcom-- pofed a Book, Intituled J)w<»t**1* ■mtipw, The Rights of War ) : nor among the Cbrifltans, which yet, is a work Wry defiderablc. Nay, ofthofe Books wrote by the Ancient Romans concerning their Fecial Laws , there is no- thing traduced unto us, but the bare Nairn. They that collected the \umms of fuch (Japs as they call Cafes of (Jonfcience - ha'Ve, as of other things, fo al/o of War, ofTromiJes, of Oathes, and cf (Reprisals wrote whole Qhapters. I hflVe aljo feenjomejpecial Books written of the leji any fuch Jhould efcapeus, we haVe adventured to difcoVer the Very founda- tion, whereupon we may build our judgement, fo thai it may be eafie to decide any fuch que f ion, asflmll happen by us, to be otmtted. The Law of It remains now, that we briefly declare, by whole a ffi fiance , and with Nature how , , ■■ , , . '__ J {f , , ' , r J a i ~i s proved, and »W care ipe undertook this Work. And in the prjt place, My care was, to guiftJdfrom ^fo' the proof of fuch things as belong to the Law of Nature, toJuchNo* other Laws. f W)ls ^ are j~ certain and undoubtedly true, that no man without wronging his own judgement, can deny them. For the principles of that Law, tf rightly obJcrVed, arc as plain and evident of themjelves almojt as thofe we dijeern with The Preface. xv with our outward Senfes 7 fbhich if our Organs he rightly difyojed, and other things ( thereunto necejfary ) not wanting, cannot deceive us : Therefore Eu- ripides brings in Polynices averting the right eoufnef? of his own Caufe, thus. Thefe things being plain and regularly due, Both Learn'd and Unlearn'd muft confeis are true. hereunto he prefently adds the Judgment of the Chorus ( which after the manner of the Barbarians, conftjied all of Women) acknowledging the truth of ^vhat Polynices had /aid. The fame Author in another place brings in Hermione faying, — . We live not like (Barbarians here, I trow. Wlxreunto Andromache anfwers, Yet what with them is ill, with us is fo. For the proof alfo of this Law, I haVe likewife produced the Te/limonies of Philojophers, Hiflonans, Poets, and in the lafi place Orators : "Not that they 'are all either equally, or rajJ?ly to be believed, for they Jpcak many things in fa- vour to their own ScB, and to the Argument or Caufe they undertake to defend ; but that which many wife men, living in fcVcral Ages and in feVeral places, do all of them affirm to be true and certain ; that, I fay, ought to be referred to jome uniVerJal cauje, ivhich in thefe Queflions brought by us, can be no other than either feme inference directly drawn from the Very Principles of Nature, or from the commm conjent of all Nations. The former flnws the LaVj of Nature, the latter the Law of Nations. The difference between theje is not to be underflood by the Teftimonies themfclVes, (for the Laws of Nature and NamrV^and" Nations are eVery *b>herc by Writers promifcuoufly ufed ) but by the quality of^° ns .^ the matter ; for that which cannot be deduced from certain Principles, by cer= tain and concluding Arguments, and yet everywhere appears to be obfcrVed, we may conclude hath its rife or beginning from the freedom of the Will: And therefore I alone haVc endeavoured to diflinguifJ? thefe two, not only one from another, but both of them from the Civil Law. So alfo in the Law of Nations, in the Law of J have dijlinguip?ed that which is truly, and in every rejpecl (Rjght , from that ^hichh per- which hath only got a certain outward effetl like unto that of Primitive ^ght, ( ^y J^* namely, that it may not lawfully be refiflcd, or, that it ought every where to be M>m that defended eVen by public k force, cither byreafon of fome profit , or that jome fome effeds greater inconveniences may be efchewed ; which how ncccffarily it w to be ohjerV* ° ng u ' ed, Voill appear in the contexture of this enfuing Treatifc. Nor haVe I been lejs careful to dijlinguip? between thofe things that are ^jght, ftritlly and pro* ( b z ) perly xvi The Preface. ptrly taken, whence arijetb the obligation to ^eftitution : And thojc things that .ire jo accounted ; becauje to Jo othcrwife "Would be repugnant to fome other di= elate of ^jght %eafin ; of which diVerfty of %$ghp, we haVe jaid fomewhat already both here and aboVe. Ar $tot cam- Among Tbilofophcrs, Ariftotle defers edly claims the Trehcminence, ule= ther we confider the order of his Treati/e, his acute difiinHions, or the flrength and iveightofhis^eafons. Onlylivfi that this Trincipaliiy of his, had not for fome Ages pafl, degenerated into Tyranny ; fo that Truth (for the difzoVe=> ry iphereef Ariftotle took f ogre at pains ) finds no greater Qpprcfjor than ite Very Name of Ariftocle. /, as well here as elfeivhcre, do challenge to my f elf the liberty cf the ancient Chriftians, who would cfiwuje no Scci of Thilojophers : Not that they were of their Opinion, who held, That nothing could be known, (than which no= thing can be more abjurd ) but that there iVas no Sett that could difcern all Truth, nor any but what held fomething that loot true'. Wherefore to collect Truth thus fcattered, and through Jo many Sects dfperfl into one 'Body, this, they conceived to be nothing elfe, but to deliver aVotlrine truly Chrijiian.Thus thought Juftin Martyr, as appears by the fir ft of his Apologeticks , The Doctrines of Tlato were not much different from thole of Chrift, nor were they altogether the fame : So neither were the opinions of the Stoicks, Poets, or Hiftorians ; for every one of them having fome imprefs of Reafon , faw in part, what was conlentaneous thereunto, and fo far they faid what was right. For thofe very T>tz P i'r.ni'c,^ manners, faith St. Auguftin, which Cicero and other Philofbphers Co highly commended, are both taught and learned in all our Churches now flourifliing through the world. And in a?iother place f peaking of %SVc.u. ^ Platonifts, he faith, That ibme few things being corrected, they might pais for Chriftians. It was not without caufe that fome of the Platonifts,dtfJ ancient Chriflians difjentcd from Ariftotle in this, That he placed the "Very nature of Virtue in a mediocrity of Affections and Actions, which being thus placed, droVe him to this, That he compacted two feVeral njirtues, namely, Liberality and Tarfimo* ny, into one: And gave unto Truth two Oppoftes, not equally difiant from it, namely, Vain'boafimg and Diffwiulation ;-andimpofed the name of Vice upon fome Things, either not exifting, or which of thcmfelVes are no Vices , as the contempt of Tleafure and Honour, and a Vacuity of Anger againfl men. But that this foundation of his, if taken uniVerfally , is not rightly laid , "will appear eVen from Juftice it J 'elf whofe oppoftes (being too much or too little) when he could not find in the affections and their fubfeauent Actions, he was inforced to feck for both in the Very things themfelves, about which fuf ice was conVerfmt. Which Very thing is in the fir ft place to leap from one Genus to another, which he deferVedly blames in others : And in the next place, To receive lefszhan what is our due, may haVe fomewhat of Vice adhering unto it as Orcumflances may happen. For it ?nay be, that what any man fo abates, he The Preface. xva he may owe to the relief of cither himfclf or of his Relations. But certain* ly it cannot be repugnant to juflice, which wholly conftjh in abjidining from what is another mans : Such another fallacy is this, that he would not have Jdultery proceeding from Lujc, and Murder proceeding from Anger, to belong properly to Jnjufiice ; whereat notwithjlanding Injufiice is nothing clje but the detention of another mans %ight, whether out of Luft or out of Anger, or out of an unadvifed Charity, or out of an Ambition or Vain-glory (from whence the greatefi injuries do ufually arife ) it matters not. For to trample upon all tern* ptations whatfoe\er, rather than to diffohe Humane Society, this truly is the proper ivork ofjujlice. But to retuntfrom whence we came. True it is that to fame Virtues, it falls Some vertucs r rT ■ n i i ;/•• require the out Jo, that the ajJeBions viuji be moderated, but not becauje it is proper and moderacipntf perpetual to all-iurtues that they Jlwuld be fo ; but becaufe (Right ^eajon, ° whereupon Virtue always and eVery where attends , doth in Jome pnjcribe ameafurc to be followed, whereas in others it excites to the highefl degree of others nor. what we can do. Itjvas well faid of Agathias, Of the motions of the ub. 5 . "Mindjthoie are limply and altogether to be embraced,in. which that which is agreeable to our duty, and worthy our choice, is (bund and fincere. But in thofe which may haply decline unto evil, wemufl not fimply and abfolutely follow, but fo far only as is convenient : Prudence is a pure and uncorrupted good, which none will deny. In Anger, that which ftirs us up to a&ion is commendable , but that which exceeds moderation, to be avoided as being damagable. LoiVe God too much we cannot ; for Superftition fins not in this, that it worflnps God too much, but in that it worflnps him perVerfely : Neither can we be faid excejjlvely to defire things that are good, and that are eternal, or execfjtiely to fear thofe torments which are e'Vcrlafltng, nor too much to hate fin : It Tt>as therefore truly faid of GeWms, Some things there are of fo vaft extent, that they will admit of no bounds or moderation, and that are fo much the more praiie-worthy as they are greater and larger. La- ctantius "token he had largely difcourfed of the Affettions, /aid , Non in his moderandis fapientiae ratio verfatur, hicl?God by men doth Jometimes execute, and that which men execute among themfclves. We have, as near' ly as we could, avoided both this error and another contrary unto it, which lument not ls y that after the times of the new Covenant, there is no ufe at all to be made the'^cv/was °f ^- e ^' ^ to ^ ns m are °f a contr(lr y Judgment, as well for what we haVe puWifhed. already f aid, as becaufe Juch is the Nature of theNcw Laitr, that whatfoeVer is commanded in the Old, appertaining to Virtue and good manners, the fame or much greater is commanded in the New. And after this manner do the an- cient Chrijhan Writers make ufe of the Teftimonics drawn from the OldTefla* rnent. But to the right under fanning of the fence of the Books- of the Old Tefainent, we haVe no fmallhelp from the Hebrew Writers, especially thofs "toko were throughly inftrutled in the language and manners of their own Coun= try. The New Tejiament J do alfo make uje of, to inflrucl Chriflians in what is lawful for them to do, which cannot be elfewhere learned ; which notwith- J} aiding ( contrary to what fome have done ) lhaVe diflingififl)cd from the a greater fan- Law cf Nature : Being moft affuredthat in that mofl holy Law, a greater ffiteGtfdf&nitify is C07nmanded,thanthat which the Law of Nature doth of it felf require. :!i.n by the Neither haVe I omitted to obi erVe , what is rather commended unto us than ture. commanded , that fo we may underfiand that to do contrary to that which is ftinguifhed '" commanded, is impiety, and renders us lyableto punifhment - y but eagerly to from coun- ^fpj re t0 t ] mt -j|,^ /c / ; t5 mo f excellent, as it argues a noble and generous mind, jo ft? all it not want its due regard. Canons Ec- Synodical Canons if they he right , are nothing but Collcaions drawn from ckfiafiicai. the general flyings of the ViVine Law, and fitted to particular cafes which do ufually happen : Thefe alfo do either point out what the Vivine Law doth en* joyn, or exhort us to that which God commends unto us : And this is the of- fice of the true Chriflian Church, faithfully to traduce unto others what God hath delivered unto her, and afcer the fame manner as they were delivered. But eVen the Cufloms ufed among thofe ancient Chri* ftians, and that were worthy of that Great Name, being cither generally re' ceived, or praifed, are dcferVedly to be ranked with the Canons. The Fachers. After thefe, the fecond Authority is of thofe who were in their times famous among Chriflians, for cither their pious lives or doflrincs, and were as yet ne= Ver The Preface. xix Ver noted for any great error. For eVen thefe men alfo ought to be had in good ejleem, as to what, "frith great affeVcration , they affirm, and have found out to be true in the interpretation offuch places of Scripture as Jeem to be ob- jcure : And the more, by hoTto much both their confent is the greater, and they draw nearer to the times of the frfi purity, long before any Supremacy was ufurped , or any Setls or Factions known to adulterate the 'Primitive Truth. The Schoohmen that fucceeded to theje, do often fl?e*to the flrength of The School their Wits ; 'But they happened to live in <~very unhappy times, being altoge* ther ignorant of good Arts : No marVel then, if amongft many things ivhich are in their Writings Commendable , there are fome that are Pardonable. And yet when they agree in matters of Morality, they fe I dome err, being 6 14 16 20 21 18 23 20 12 ^S 6 51 20 26 34 38 27 30 24 20 48 49 22 6 Cene/is, MAns Right p. 78 The Tree of Knowledge of Good and Evil. 79 T Whomever fhall find me, fhallkill J me. 15 Gyants. 79 The blood of your lives will I re- quire. 14 Brought back all thofe things. 5 29 Tithes of all. ibid. Give mc the perfons, and take the goods. ibid. Deftroy the righteous with the wicked. 43 5 Abraham of Sara fhe is my Sifter. 4-38 Children by Concubines what por- tion. 125 Steal away the Heart. 441 Ye have made to ftink. 46 8 Bring her forth and let her be burnt. Sent her the Kid which he bad pro- mifed. 154 Which I took with my Sword. 468 In their anger they flew a man. ibid. Exodus. Exod. 7 5 Idols to be aboliflied, and why. 466 12 23 Cityfet up ftrange Gods. 389 13 16 A Prince or Prophet feduce others. ~ ibid. 17 14 God approves Abrahams War with Ameleck. I 3 20 2 The four firft Commandments ex- plained. 387 17 Thou (halt not Covet. 383 21 14 Sanctuary for the unfortunate. 3 97 26 Liberty due for an Eye or a Tooth. 22 1,9 Sheep or Oxen ftolen, reftore five- fold, or double. 381 2 The Night- Thief may be killed. 32 28 Nor curfe the ruler of thy people. 60 23 3 Regard the poor in Judgement. 4 Leviticus. Levit. 18 The degrees of affinity. 109 19 18 Love thy Neighbour as thy felf. •17 1 5 Regard the poor in Judgement. 4 J Ch. Ver. Levit. 21 7 Priefts not marry a divorced wo- man. 105 24 20 Eye for Eye, Tooth for Tooth. 370, 371 Numbers. Numb. 14 30 Gods OathtojFo/Jj«4. 168 20 21 Innocent paflage deny ed. 83 25 4 Hanged on a Tree. 217 Deuteronomy. Deut. 8 21 The Right of Kings. 54 15 13 Thou (halt not let him go empty handed. 523 177 The hands of the witnefles (hall be firft. 43 1 19 19 Do unto him as he thought to have done unto his brother. 381 20 10 Cornell to a City, proclaim Peace. 13 19 Thou fhalt not deftroy the Trees. 469 22 1 Thou fhalt not fee thy Brothers Ox goaftray. 184 26 The Ravifher fhall dye, but not the Damfel. 50 1 236 Thou fhall not feek their Peace. 1 85 Jojhua. Jojlma 8 15 His feigned flight. 9 15 HisOathtothec7»6flvwV«. Judges. Judges 3 15 £WsFa His fatisfa&ion for breaking 4 S his League. 14 77 1 Chronicles. 1 Chron. 26 32 Judges in the affairs of God and the King. 47 2 Chronicles. 2 Gfow.' 16 27 Ahaziah forfook God. 185 19 2 Jehojhaphat's League with ^M>. 185 6,8 Judge not for man, but God. 47 25 7 Let not the Army of Jfrael go with thee. 185 7o& 31 26 "» Worfhip the Sun and Moon. 27 3 8 P Pfalms. Tfal. 2 10 •» 11 J Be wife, O Kings, ferve the Lord with fear. 17 1 S 4 Having fworn to his own hurt. 1 7 3 198 The Law is holy and juft. ro 5* 4 Againft thee only have I finned. 47 Pra/wta Trov. 1 26 God puniflieth in Revenge. 16 4 The wicked for himfelf. Eclefiafiicus. Ecclef. 12 7 Duft to Earth. Ifaiah. Ifaiah 1 24 Ah, I will eafe me. 2 4 Swords into Plough- fha res. 58 5,6 Reftitution. 364 ibid. 214 364 20 49S Jeremiah. Jer. 25 12 God judgeth Kings. 3,8 5 He is in your power. 26 The truth concealed. 40 48 458 jEzechiel. Ez.ech. 17 "1 Kings of Jfrael reproved for not keeping their faith with the King of Babylon. Matthew. Mdt. 3 2 Repent for the Kingdom 4 1 7 The Kingdom ot Heaven. 5 17 Deftroy the Law, but 18 ibid, 19 16 2 1 Ye have heard it faid to them. 34 Swear not at all. 174 38 Eye for Eye. 21 39 Refill not evil. 21,32,33 40 Sue thee. ibid. 41 Go a mile. ibid. 44 Do good to all. 370 45 Cauleth the Sun to fhine. 186 6 H X j- J Forgive all men. 371 3 3 Seek ye firft the Kingdom. 1 86 7 i Judge not. 373 io 39 Lofeth his life. 63 11 1 2 "» Kingdom fufFers violence , the 13 i Law continues till John. 18 13 29 Suffer the Tares. 434 15 5 Corban. 170, 171 22 20 Tribute to Cafar. 66, 214, 215 23 2 1 Sweareth by the Temple. 170 26 52 Put up thy Sword. 32 They that take the Sword fhall pe- rifhbythe 34 24 51 Hypocrites. 174^ 26 25 Twelve Thrones. 441 Alarki Mark 6 45 HeconflrainedhisDifciples. 390 48 Made as if he would have gone. 439 14 21 It had been better. 366 Luke. Luke 2 1 All the world. 407 , 3 14 Be content with your wages. 23,53 13 3 3 A Prophet perifb. out of Jerusalem. 48 14 23 Compel them to come in. 390 17 3 Forgive if he repent. 371 18 7,8 Shall not God revenge. 3 3 22 30 Deftroy this Temple. 441 • 36 Buy a Sword. 33 24 28 Made as if he would have gone. 438 John. A Table of Scriptures. John. John 4 9 Water of the woman of Samaria. 185 8 7 Caft the firft ftone. 363 11 n Lazarus fleepeth. 440 33 21 Deftroy this Temple. (441 1 8 8 ,9 Suffer thefe to go. 3 3 36 My Kingdom is not of this. 408 Ms. Atts 10 2 Cornelius. 8 13 2 Sergius Paulus. 20 16 3 Paul circumcifeth Timothy-, and why. 439 17 4 Pious Grecians. 8 25 n I refufe not to dye. 21 26 , King Agnppa. 18 28 18 They found no caufe of death in me. "> 20 Romans. Rom. 2 14 By nature the things of the Law.' 9 3 27 The Law of works. 17 5 12 Judge thofethat are without. 408 7 12 The Law is holy and juft. 10 14 Spiritual Law. 17, 18 10 5 The Law leadeth unto Chrift. 10 12 19 Avenge not your felves. 3i>33 13 1 Let every Soul. 18,24,59 2 O Subjedt, not refift. 55 4 J» For Confcience fake. 33 5 j He is the Minifter of God,c£r. ib. * 6 Tribute. 20 14 23 Whatfoever is. not of Faith is fin. 411 1 Corinthians. 1 Cw.4 6 439 4,5! Chriftians not to go to Law. 6,7 •> 21 6 17 All things are lawful. 456 1 o Who without repentance. 49 6 7 21 Servants be content. 407 25 No Commandment from the Lord. 109 36 Virgins not to chufefor themfelves. 107 11 1 4 Men not to wear long hair . 165 2 Corinthians. 2 Or. 2 ao Yea, TtoftAmtn. 174 6 14 What fellowlhip hath Chrift with Belial. 186 10 34 The Weapons of our Warfare. 24 12 1 4 But Parents for their children. 1 24 Galatians. Gal 3 25 The Law is our guide. 4 1 The Pupil during nonage. 6 5 Servants not to fly. 10 8 9 116 Spbeftans. Eph. 2 3 By nature children of wrath. 16 j 14 The Partition wall. 9,23 6 12 Wreftlenotagainftflelh. 24 Philippians. Phil. 4 8 Allhoneftyandvertue. 21 Colojfians. Cohf. 3 22 Servants to pleafe their Matters. 117 1 Thejfalonians. \Thejf. 1 15 Equally yoked with unbelievers. 186 1 Timothy. 1 Tim. 2 1,2,3 Prayer for Kings. i 7 5 3, 17 To honour is to, do good. 170 Titus. Tit. 2 9 Servants not to fly from their Matters 116, 117 Hebrews. Heb. 4 17 By which it is impoffible that God fhouldlye. 168 7 4 The Tenth of the fpoyl. 468 16 The Law of a carnal Commandment. 17 19 The Law imperfeft. 10 8 7 Had the firft Covenant been blame- lefs. ibid. 11 6 Religion an accefs unto God. 388 34 By Faith. i 3 James. James 4 1 Whence cometh War. 24 5 12 Above all things fwear not. i 74 1 Peter. ,, i Pet. 2 1 To Kings as fupreme , to Magi- ftrates as fubordinate. 5 8, 59 17, 18 Honour the King, fervants be fubjeft. 57 1 John. 1 John 2 16 The luft of the flefh, of the eyes. , * 7 9 3 16 Lay down our lives for our bre- thren. 34 5 16 Sin unto death. 366 HVGH Hush Grotius OF THE RIGHTS OF PEACE & WAR. BOOK I. CHAP. I. What War is, And what Right is. I. The order of the whole Treatife. 1 L The Definition of War, and the origi- nal of the word, Bellum. I I I. Right-, as it is Attributed to Action, de- fined, and divided into that which con- cerns Governours, and that which concerns Equals. I V. Right taken for a Quality , divided into Faculty and Aptitude or fitnefs. V. Faculty firiilly taken divided into Pow- er, Dominion and Credit. V I. Another divifwn of Faculty into that which is vulgar, and that which is High and Eminent. VII. Aptitude what. VIII. Of Expletive and Attributive fu- fiice, not rightly difiingui(hed by Geome- trical and Arithmetical proportions, nor in that this u converfant about things common, that about things private. I X. Right as taken for a Law, how defin d and divided into Natural and Voluntary. X. The Law of Nature defin' 'd, divided, and difiinguiflit from fitch as are not properly fo called- X I. That Natural InftinEl , either common with other living Creatures, or proper to men , doth not conflitute another diftincl Law. XII. How the Law of Nature may be proved. XIII. The Voluntary Law divided into that which is Humane and that which is Divine. XIV. Humane Law divided into that which is Civil, that which is morefiricl than Civil, and that which is more large, which is alfa called the Law of Nations, how explained , and how proved. X V. The Divine Law divided into that which is Vniverfal, and that which was pe- culiarly given to one only Nation. XVI. That the Law peculiarly given to the Hebrews did not oblige ftr angers. XVII. What Arguments Chrifiians may draw from 'the Hebrew Law, and how. »LL Controverfies between fuchas arenotaffbeiated under one Civil j. Law, as between thofe who never yet entred into any Civil Soci- The order of ety, or that are among themfelvesof feveral Nations, whether they this whole are private Subje6ts,or fuchas are inverted with Soveraign Power, Treatlfc ' whether Kings,NobIes, or Free people •, All fuch Controverfies, I fay, are to be referred to the times, either of Peace, or War. But becaufe the end of War is Peace, and that there is no fuch Contro- verfie but may produce War, therefore what differences foever do arifeby the occafion of the Rights of War ,. fhall inthefirft place be exactly difcufs'd : That fj War it felf, being duly profecuted, may lead us unto Peace, as to its proper end. B Being 'ts 2 What War is ; and What flight is. BOOK I. • — — ! I !• , Being therefore to treat of the Rights of War, it concerns us in the firft place to know Wardcfin d w j iat t h at War is,whereof we are to treat, and then, what that Right is that we fearch for. War fas C/rwo defines it) is Certatio per vim, a Debate by force : But cuftom hath Tranflated the fignification of the word, from the Ad it felf, to the ftate and con- dition ofthofe that make War^ for as Philo well obferves : They only are not Enemies tij.it are actually engaged in Battle whether at Sea, or Lan-i , but they alfo, that raije Forts, plant Ordnances, or ftich like Engines of War on their Walls, or Ports, though at prefent they patriot, Servins upon thole words of Virgil, concerning tineas , In War and Arms IShne greater was than He, makes this diftindion , By War we understand all confultations and Preparations for War: but by Arms only the ufe or exercife of them. Therefore in another" place he concludes, that all that may be reckoned a time of War, wherein either things ntceffary for firht arc preparing, or the fight it fdf lafis ; fo that War may be defined to be the State or Condition of thole that contend byforceas fuch: Which general acception of the word comprehends all the kinds of War whereof we are to treat, not excluding that which fometimes happens between private perfons as Duels or fingle Combats, which certain- ly are precedent to thofe Wars that arepublick, and being of the fame nature, may well be comprized under the fame proper name. Which fenfe the Original word will very well bear, for from the Old word Duellum is made this new word Bellum, as of Ditonus is made Bonus, and of Daw, Bis. Now Duellum fignifies a contelt between two, in the like fence as we exprefs Peace by Unity, or as the Greeks do War by^oA^o* } in refped of the Multitude of people that are engaged in it •, as alfo they fometimes do by the words am and JVw, in refped of thofe direful effeds that attend it. Now as the Original of the word will juftifie this large fignification , lb will the common ufe there- of bear it. But if it be objeded, that this word istaken generally for that conteft by force of Arms, that is publick, I anfwer, that this argues not that fingle Combats may not be alfo fo called:, For m oft certain it is that the name of the Genus doth often pecu- liarly adhere unto that of its Species , which is moft excellent. Astojuftice, I do not admit of it in this definition, becaufe it is the Subjed of this whole Treatife to enquire. Whether any War be Tuft , and what War is fo. But that which we feek, mult be di- ftinguifht from that concerning which we feek. 1 1 1. Whereas the fubjed of this whole Treatife is The Right of War, we are in the firft Right as it ' place to understand, ( what we find jnft now ) whether any War be juft? And in the next relates to A- place, what it is in War that is jnft? For we underRand in this place by the word, Rirbt, #^*,defined that which is juft: And that alfo, rather in the Negative, than m the pofitive fence, an m-.e . ^^ we here term that juft, which is notunjuft. Now that we account unjolt which is repugnant to the Nature of a Rational Society : As for example, to rob another Veoff.l.$. to ennchourfelves, is (as Cicero obferves) contrary to'Nature, which he thus proves ; If this, faith he, were allowed, all Society and Communion between men, would quick- ly be diflolved. So for one man to betray or deceive another is unjufh as Florenthms proves, becaufe it breaks that bond of Alliance, wherein Nature hath linkt together veiral.2.c. all mankind for mutual defence. Which Seneca thusllluftrates \Jufl m all the members 3 1 ' of the body, ought to be equally folicitom one for another, becaufe in the prefervation of each par t, conjifts the welfare of the whole ; fo ought all men to forbear each other, becaufe they are bom for Society. For it is not poffible for any Society long toftand, unlefs every part thereof be Ep. 48. cherijljid and defended by the whole. So in another place : That Society is Faithfully and religioufly ta beprefrved, which foVnites m one to another, that we all agree in this, That there is fomewhat where unto all manlzjnd hath a Common Right. But as of Societies, fome confift of Pei Ions that are equal, a*sthat of Brothers, of Citizens, of Friends and Allies : and fome confift of Perfons that areunequ.d, (and thefe alfo vary according to their degrees of Excellency ) as that of Parents and Children, of Mafters and Servants, of Kings Vuaa. an d their Subjcds, God and Man (for fuch a Society there is, if Philo and Plutarch deceive us not. ) Even fo things may be laid to be juft or unjuft refpedively •, for one thing may be juft in refped of thofe that live together being Equals, and another thing maybe juft in refped of the perfons Governing, and the perfons Governed as fuch-, whereof this (hall be faid to be the Righ: of Rulers, and that the Right of Equals. . v There is alfo another fignification of the word, Right, which though different from Right as'itis this , doth notwithstanding arife from it, and refpeds the qualification of the perfon ; a quality divi- in which fence it fignifies a moral Quality in any perfon, fufficient to enable himjuftly dedimofacul- t0 navc or to do (bmething. Now this Right appertains to the Perfon, though it be ty and fitnefs. f ornet irnes but in relation to the thing he holds, as fervices for Land held of a chief Lord, and thefe are called real Rights, comparatively to thofe that are merely perfonal not becaufe even thefe belong not to the perfon, but becaufe tfcey belong to no other but Chap. i. What hath over his Goods, to difpofe of them ashepleafeth ,or that which is more eminent, twofoldfcithcr being fuperiour to that which is vulgar, as that which every Society hath over the per- Common or fbns and Eftates of all its members, fo farasconducethto the prefewt.tion of the whole. Eminent. Thus doth Regal Power comprehend as well that of a Father, as that of a Mc.fter-, fothat a King, as he is a King, hath a greater Right in the Goo is of his Subjects, fo far as is ne- ceffary for the publick fafety, than any private Subject hath inhis own. Of this opi- nion was Fhilo the Jew, Surely both the Silver, anu the Gold, and whatfoever elfe is held , . . dear and precious to Subjetls, are more in the Power of thofe that govern, than ofthofe that dedonth^"" pojfefs them: Of the fame mind alfo was Pliny, asapp^aisbv his Panegyrick, where fpeak- LawofNa- Wg of a King he faith : Cujus eft quicquideft omnium, what all men have, is his. And again: ture, which Is there any thine that Csefar can fee, that is not his ? that is, whensoever the Commonwealth doth P* 3 *** " u }. c ? /r t ■ •. be mft, which neceffanly require tt. hnecefTary for the prefer- vation of Humane Society, which our bleffed Saviour takes as granted; and therefore fpeaking of Taxes, he faith not, Offer orgive as of a thing Arbitrary, which was in our Power either to do cr not to do: But render, as of a thing that we owe or are trufted with for the benefit of another, which we are bound to reftore whenfoever we are thereunto required. And fuch indeed is that portion of every mans Goods, which is necefiary for the defence of the Common- wealth, not ours, but ctfirs. Sr. Paul calls thefe Debts, which being ioyned with the word, Render, makes it as clear as the Sun, that our Taxes are not Donatives, but juft Debts : Nay they are the Greateft of Debts, due upon the ftricteft accouBt, and therefore juftly to be preferred before all other Lebts. and in the firft place to be difcharged ; And good reafon, for the Non-payment of this Debt, may occafion the lofs of the whole Eftate, not private only, but publick. That which before I called Aptitude or Fitnefs, Ariftotle expreffeth by the word , v J r - Worthinefs, Michael Epheftus by another word implying Fitnels or convenience. As: ^ ,vhat for example, If aQneftion fbouldbe put To whom in duty we ftandmoft obliged? The Anfwer, ptofficl. U faith Cicero, fiould be, to our Prince, to oftr Country, to our Parents:, Becaufe from them we receive the greateft Blejfmgs we enjoy ; next to thofe, we (I and engaged to our Children', to whole Families, whofe dependence is upon us alone : The n to our neareft relations, who for the ntoft part do claim a fttare in our fortunes. Wherefore all thefe we are bound to relieve with all things neceffary for life, but cfpecially thofe above named : But to Eat, to Drink, to Converfe sceBoo^i.cb. with, to exhort, to advife, to comfort and fomctimes to reprove, thefe are the proper Offices of 7-£j>, io« Friendflnp. So being to make our will, we confider who hath beft delerved of us, SuhintMUbi Quttrimus digniffimos quibus r.oftra tradamus, wefeek^out fuch as are mofl worthy to whom to bequeath our Eftates. Expletive Juftice, which hath now gotten the name of Juftice ftrictly taken, hath a re- v T l \- fpedttothat which is our own, which Juftice, Ariftotle by too narrow and pinchtaword, an d Atmbu- 6 calls Commutative Juftice •, For that he that 'is poileft of what is mine, mould rcftore tive Juftice." it tome, isnot.by Commutation, and yet it belongs to this Branch of Juftice: And &Vw*a>.«$- therefore in another place he finds out a more apt and pertinent word to exprefs it by, v*™- calling it 'ex&vtsSomiiv, A Juftice that makes the ballance even, or that repairs and reftores to the full. Attributive Juftice, which is called by Ariftotle, Diftributiveju- fuvimTinfo ftice, hath a refped to aptnefs, worthinefs or convenience, and is uiuall the Concomitant- • of fuch Vertues as are beneficial to others, as mercy, liberality, and State Providence But whereas the fame Ariftotle faith, that Expletive or Commutative Juftice hath refped unto afimpleand Arithmetical proportion-, but Atributive, to a Comparative, which he calls a Geometrical proportion, as being the only proportion owned by Mathematicians ; and which Cafftodore calls the comparing of mens habits or difpofitions, and not unfit- ly by Homer defcribed in this verfe, Things beft to beft, he gave, mean things to mean. This may hold in fome cafes, but not in all ; neither doth Expletive Juftice of it felf differ from Attributive in fuch ufe of Proportions, but in t^e matter whereabout it is Conver- fant, as is before fhewed. Therefore as in all Elections made by Societies, if there befeveral Competitors the Choice is made by a Comparative Proportion, for Datur B 2 digniort j What flight is, What the Law of Nature. BOOK I. digniori ; the worthie(t is chofen : fo if there be no Competitor, and one only be found wor- thy of fuch a publick office, it is Attributed to him by afimple proportion. Neither is that more true which fome affirm, that Attributive Juftice isConverfant only about things Common, but Expletive about things private, that is, appertaining to particular men. For on the contrary, If a man fhall go about to bequeath his Eftate by Will, he doth it by Attributive Juftice, difpenfing it according to the' worthinefs of the perfons that are to receive it : And a City which renders out of that which is Common, what fome of her Citiziens have bellowed in publick, doth it by the Rule of Expletive Juftice, not regarding the worthinefs of the perfons , but the bare Right of him that ought to receive it. This young Cyrus learnt of his Tutor in this cafe : There were two boyes that had two Coats, both of different Dimenfions , the bigger Boy • Jiad the le{1 - er Coat ^ and the le fl- er Boy had the bigger Coat, which the bigger Boy took from him, being fit for himfelf,. leaving him the leffer Coat, which alfo was fit for him ; cym his mif- whereof Cxms being made Judge , and regarding more what was fit and convenient, take'. " than what was juft and Right ; adjudged the greater Coat to the bigger Boy, and the little Coat to the lefler Boy: But his Tutor told him, That he had done amifs: For had he been to judge what wasfittefi, he had done well : But being to judge, whofe each Coat was, he was to regard who had the befi right to it , he that by force took, the great Coat away, or Lew.' if! i<. be that wdtit, or bought it. This is it that tJMofesm his Law forbids, faying: Thoujhalt ' not regard the Poor in judgment, but ^li alt judge thy Neighbour with Righteoufnefs. Which can- not be done, unlcfs we do (as Philo advilettysiperjonislitigantibusres abftrabert, Confidtr the matter, without regarding the parties contending. There is alfo a Third fignification of the word Jus, or Right, wheh makes it Equiva- Right *'ta lenc t0 the word, Lex, that is Law, when taken in its largeft fenfe ; that is to fay, as ken fo/a rule it is a rule to Moral Aftions, obliging us to do that which is right : In which ienfe or Law de- it was that Horace took it where he faith , fined. • For fear of wrong , ftrifi Laws invented were. So in another place : Jura neget fibi data ; Be may deny that Laws for him were made* Which"the Scholiaft thus expounds : He was a man that defpifed all Laws. In which De- finition we fay firft that it muft oblige, and herein it differs from Counfels and other prefcriptions, which though honeft, yet fall nqt under this Notion of Law. And as for permiflion, to fpeak properly, it is not the Action of Law, but the denyal or Reftri- clion of that Action, unlefs it be, as it obligeth 'another not to give him to whom fuch permiflion is granted, any lett or impediment. Befides, it muft oblige us to that which is Right, and not limply to what is juft, becaufe Right in this fence, doth not be- long to Juftice alone , ( fuch I mean, as we have here- For many things may be juft according to the letter tofore explained ) but unto the matter of other Ver- of the Law, which notwithftanding are not Right, tues : An example whereof we have in that Law made Neither is it poflihlethatan> Lawgiver fhould fore- by Zeleucui , who ordained a punifhment to be in- Sich" SJtSS^iEX &&£ fliftedupon him who contrary to the advice of his may fcem juft, is not fo fafe a Ruk to walk by, Pnyfician prefumed to drink Wine. And therefore as that which is juft in this larger ienfe, that is, that Right which this Rule guides us unto, muft needs Righteous and honeft. be of a larger fignification than that which is (imply juft. Of this Right fo taken, the beft partition is that of Jriftotleh, into that which is Natural, and that which is Voluntary, or as he there calls . , it Legitimate ; the word Law being taken in the ftrider fenfe-, which difference is acknow- b*w!»r* ledgedboth by the Hebrews, and the Grecians, who when they would fpeak properly , diftinguifh them by their proper names. X. That which we call natural Right, or the Law of Nature, is the di&ate of Right Th,s Lj \ v c f reafon, fhewing the Moral Malignity, or the Moral Neceffity that there is in any Ad, ned&diftin- by either the Repugnancy, or Congruity, it hath to Rational Nature it felf, and con- guii'm from fequently, that fuch an Aft is either commanded or forbidden by God, who is the that which very Author of Nature. Or as f Philo defcribes it : Right reafon is a Law that cannot lie, it is not proper- ^ net Mortal, nor given by any thing that is Mortal, it is not livelefs, nor written in Paper, or iTit'omeemvi- '''fc^P 1 on PM^s that are livelefs, but it is an immutable and immortal Law, being engraven thmbonim ep by an immortal hand, on a mind that is immortal. Cicero, as * Laclamius quotes him, libirm. gives this excellent defcription of it : Right reafon is a perfett Law that will not lie, it U * Lib. 6. c 8. MO j} agreeable to humane Nature , and Vniverfally diffufed throughout all mankind : It is in- corruptible, immortal, which fummons us to our duty by commanding it, and drives its from all fraud by forbidding it \ neither are its Injunctions or prohibitions in vain to the Righteous : though Chap. i. What (Right is ; What the Law of Nature. 5 though with the wicked they prevail not. To this Law nothing mufl be added, nor any part thereof 'detracted, and wholly to abrogate it, is impojjible. It ts hot in the power either of the Striate or the people to abfolve us from our obedience to this Law, neither need we to feel-^af^ ter any other Expofitor than the Law it felf : Neither is it one Law at Athens, and another At Rome, ene now-, and another hereafter: But this one Law, being both E-ernal and Im- mutable-, jliall bind all Nations and in all Ages : As there will ever be or.e Common > Lord and Covernour of all, which is God- He is the Cole invent oar, judge and giver of this Law, which he that refufeth to obey , mufi fly from ( and fo unman ) himfelf, and although he may fly from, and haply avoid all other (which are thought) punifliments ; yet for the wil- • ful contempt of this only, he Jliall be feverely puniflied. Now the Acts whereupon Right reafon gives her Dictates, are fiich as are either good or evil, lawful or unlawful, (im- ply and of themfelves, and therefore mufl: neceflarily be underftood to be either com- manded or forbidden by God himfelf: And herein , the Law of Nature is different not from humane Laws only, but from the Voluntary Divine, for they do not com- mand or forbid fuch things as are of themfelves, and in their own Nature either due or unlawful i But by commanding them , they make them the one, and by forbidding them, the other. But for our better underftanding of this Law of Nature, we mult obferve, Thatfome things are faid to belong unto the Law of Nature, not properly, or immediately, but (asthe Schoolmen love tofpeak) byway of reduction, that is, Somethings for as much as the Law of Nature doth not prohibit them : As fome things are faid belong to the to be jnff, becaufe they have nothing in them ofinjuftice. And fomethings are faid to J^blwav be lawful, whicn the Laws do neither prohibit nor punifh. And fometimes by the abufe of f Reduction, the word, thole things which our Reafon approves to be honelr, or at leaft, are fo Comparatively to thofe that are oppofed unto them, though they are not enjoyned us, yet are laid to be due by this Natural Law: Moreover we mufl: obferve, that this Na- tural Law doth not determine of fuch things only, as have no dependence upon Mans will, but of many things alfo which the Common confent of mankind hath already moulded (as it were) into a Law. Thus was Dominion , as nowinufe, by Common con- fent, introduced as by a Law : But being introduced, this very Law of Nature doth in- ftruft us, that to take away from any man that which is his own without his confent, is Impious •, And from hence it is that Paulus the Lawyer concludes Theft to be pro- hibited by the Law of Nature •, and Vipian-, that it is dilhoneft •, And Julian tells us, That after that which concerns the Worfliip efGod, there is a Second Law in its own Nature holy ■> JW«L and of Divine Extraction , that enjoyns us at all times , and in all places, to abfiainfrom Theft and Rapine ', and that forbids us either in word, in deed, or in our moft retired thoughts to mix or confound each others Properties. For as Cicero out of Chryftppus well tji ff. h ii obferves : For any man to gain to himfelf what is neceffary for his own lively hood, is not unjufl ■, but to take it away by force from any other-, is not Eight. Euripides alfo condemns this as hateful to God himfelf: Ndmque odit ipfe vim Dens : Nee divites Nos effe rapto, fed probe partis cupit j Spernenda, fi non pure veniat , Copia eft. Communis *Alt\»er hominibus, Tellus quoque In qua Ampliare cuique fie fas eft domum, Vt ab alienis rebus, ac vi temperet. For God himfelf hates force, nor would that we Grow rich by fraud, but Goods got honeftly •, Riches unjuftly gain'd, we fhould difdain : The Earth, the Air, and eke the Ocean main, Stand free to all, each may hisHoule maintain By thefe , fo that from Rapine he abftain. The Law of Nature is fo Immutable, that God himfelf cannot alter it ; for though <$ d h i m r e jf thepowerofGodbeImmenfe,yetmay fomethiagsbefaid, whereunto this great power cannot alter doth not extend it felf, becaufe what are fo faid, are faid only, but have no fenfe which the Law of canexprefs the thing, but they mult contradict themfelves : As therefore that twice two Nature. fhould not be four, God himfelf cannot effect •, fo neither can he, that what is intrinfe- cally evil, (hould not be evil. For as the being of things after they are, and as they are, depends not upon any other •, fo do the proprieties that neceflarily follow that being : But fuch is the Malignity of lome ads , compared witji Nature as it is guided by Right reafon. And therefore doth God himfelf fufFer himfelf to be judged of ac- cording to this Rule, as appears by that of Abraham to God : Shall not the Judge of all Gen, 18. 2ft the world do Right ? Such a contradiction it is to fay, that he that is the judge of the whole Earth 6 The Lan> of Nature Immutable. BOOK I. Earth ftiould not do Right, that though it may befpoken, yet do the words though fpoken bear no fenfe, but rather imply a manifeft contradiction. The like we may EC 5- *• find in other places of the holy Scriptures •, it fometimes notwithwftanding fo falls Ez. i3. 25. oui; ^ c hat in thefe acts concerning which the Law ©f Nature hath determined fome- Mic'hVj' thing, there is fome ihew or appearance of change, which may eafily deceive the un- Roni. 2.' 6,%, wary, whereas indeed the charge is not in that Law which ( as I have already fa'uL> ' i. is immutable, but in the things about whiqjj that Law is converfanf, As for example, If he to whom I owe a juftDebt, fhall freely difcharge me of it, I am not bound to pay it -, net that the Law of Nature doth ceafe to command me to pay what I owe •, but becaufe that which I did owe, ceafeth to be my Debt being fo difcharged: For as Arrianus in EpiSlctm rightly argues, To make a juft Debt it is not enough , that the money was lent, but it is required that the Obligation remains uncancelled. So when God commands any man to be put to death, or his Goods to be taken from him, Murther and Theft do not thereby become lawful, for thefe very words do imply fin \ and no iin can be lawful. But thofe a&swill not amount to Murther or Theft, which are done by the exprefs command of him who is .he Soveraign Lord both of our Lives and Fortunes. Laftly there are fomeihmgs juftifiable by the Law of Nature, not (im- ply, but fo long as the condition of affairs ftand thus: So rill dominion was intro- duced the ufe of things was Naturally common-, fo befo re Laws and Courts of Judica- ture were eftablifhed, by the Law of Nature, it was Lawful to recover by force what was our own, but not fince. x i. That diftinftidn which we may read of in the books of the Roman Laws , is, Natural in- namely that this immutable Law is either that which is common to men with beafts, fund. which they call the Law of Nature in the ftricler fenfe ; and that which is peculiar unto men only which they fometimes call the Law of Nations, is of very little ufe. For nothing is properly capable of a Law, but that Nature that is capable of making ufe of General precepts , which was well obferved by Hefwd> when he faid : To men hath God given Laws to be ruCd by : But Fifh, and Beafts, and Fowls that [oar on high, Having no Law, do on each other prey ; But in gocd Laws doth all our fafety lay. Off lib 1 We fay not of Horfes and Lyons, faith Cicero, that they are juft; neither as Plutarch ob- Vitt. cut. At ferves, do we by Nature make ufe of Law or juftice againft any other Creatures but man. Among all other Creatures not endued with reafon, laith Lailantius, Nature is permitted to be her own ., Carver , Nocent aliis, ut ftbi proftnt ; They deftroy others to preferve themfelves : And info doing they are ignorant, that they do amifs. But man who hath a faculty to difcern good from evil, wifely abftains from hurting others, though thereby he fometimes incommodate Lib. 6. himfclf. Polylius having declared upon what grounds men at firft entred into Society, adds, That when the left faw fome men abufing their own Parents, and others be- having themfelves in jurioully towards their Benefactors ; they could notchufe but grieve at it, whereof he gives this Reafon.- For mankind, faith he, being endue dwith undemand- ing and reafon above all other Creatures , it is not credible, that they ftiould behold ailsfo abhorrent from Nature without exprejfing fome fign of difcontent. So likewife Chryfoftom, DeJIatiiis. 13. j-j j j s we learn from Nature herfelf, that when we fee one man abufing another, we cannot but fympathizj with the injured Perfon, andfwell with indignation againft the injur er : although thofe injuries do not the leaft touch us. And the greater the wrong is, the greater is our in- dignation againft him that did it. No man is equally incenfed againft him that cuts apurfe only, as he is aaainft Lim that commits a Murther. But if at any time Juftice be attributed to Brute Beafts, it is improperly, and only by reafon of fome Analogy or Refemblance p//i ■ ;. 8. c.k. tnat }t natn t0 Humane Juftice : As was that of the 30 Elephants recorded by Pliny, 'who could not by any means be provoked to beinftrumental to the Cruelty of King Bacchus in worrying 300ther Elephants which he had bound to fo many Trees on purpofe to have them deftroyed. And that alfo of the Afpe,recorded by the fame Pliny.who having been fed daily at a mans table, killed one of her own young ones for killing the mans fon, by whom he had been fo fed ; and would never afterwards come into the famehoufe. Thefe are faidtobejuft afts, not properly, but only as they have fome faint refem- . , blance of juftice,and fome light imprefilons of Reafon. Seneca therefore denies that Dumb c , ' Beafts partake any thing of Humane paffions ; yet he acknowledged that they have fomtwhat that is like unto 'them : They cannot properly be faid to be angry, yet have they fome violent impulfes like unto anger. Non vitia fed vitiomm ftmulachra ; they have no vices, but fomewhat like unto Humane vices, as Origen pleads againft Celfus. But whether the aft it Jelf whereupon the Law of Nature hath decreed, be common to us with other living creatures, as the education of our lllue, &c. or proper unto us only, as that God fhould be Worlhipped j doth nothing appertain to the very Nature of Right. But hat. i. Of the Lab of Nature* 7 But that any thing may be due by the Law of Nature, is ufually proved two waies, Thc x J^ of either by Arguments drawn a priori, or by fuch as are drawn apofteriori: Whereof Naturehow the former fort are more convincing :, the latter more vulgar and plaulible : the proof by p rove d, the former way is by fhewi.ig the neccfTary convenience or repugnancy that there is in any thing, with rational and Social Nature ; for whatfoever can be proved to be ne- ceflary to the confervation of Humane Nature, and Humane fociety, mud needs be infti- tuted as a Law by the author of Nature, who is the God of order. That proof which is* pfteriori is, when we can though not demonftrativcly, yet with very great probability, col- ic ft and conclude that to be a Diftate of the Law of Nature,which is unanimoufly believed to be fo by all, or at lead, by the molt Civilized of all Nations. For if the efFeft be Univerfal the caufe mud needs be fo too : But of ibUniverfala pcrfwafion there can be no other caufe probably given, than thatlenfeit felf which is called common : That of Hefmd hath been highly celebrated by many •, What Nations have avowed, Ought not by private men be difallow'd. t Qm communiter ita videntur fidafunt; that which to mofi men feems true , may be believed . faith Heraclitus. For we can have no ftronger proof, or evidence of the truth of any thing that cannot be demonflrated, than the general confent of the wifed in airNations thac it is fo. This Ariftotle took to be of all others-, the mofi powerful' and convincing proof: St in id quod dicimus omnes confentiunt ; Jf to what we fay all men give their c^fents. Of the fame mind was Cicero, Whatfoever all Nations do grant, muft needs be the voice tf N.ituie .- , thjc. So Seneca alfo, What appears the fame to all men, muft undoubtedly be true. He that derogates Ep. 1 17. from this faith can never expert to be believed himfc If, faith Ariftotle: fo likewife Tertulli- N ' c - 1 - ic,ii. an, Quod apud mulios mum invenitur, non eft erratum, fed traditum; What is approved of by the mofi, is not error but Tradition. I faid before that that muft needs be a Diftate of Nature that was acknowledged to be fo by all, or at lead, by the molt Civilized Nati- ons, and defervedly, for fome people are fo fierce and fav age th At thy have hardly any hu- manity among them, as Prophyrie rightly ©blerved. Now no man of found judgment fureiy, ' Will impute this as a general reproach to all mankind: Surely this Law of Nature is immu- table, and the fame with all mankind that are of found and perfect mind : But if it appear other- '" Ra0 wife to fuch as are of diftempered and perverfe fpirits, or have been fo corrupted through an evil £ 'mat ton, that they have loft even common fenfe, and all natural Notions, it doth not in the Uaft weaken the authority of this Law, no more than it would evince, That Honey is not fweet, becaufe it doth not feemfo to fuch as are fickj or of diftempered Pallates. Not much diferepant from tins is that of Plutarch in the lite of Ptmpey, There neither is, nor ever was, any man, by Nature wild and unfociable; many have indeed been made fo by accuftoming them- fclves to live like Beafts , beyond the bounds of Natures Laws ; and yet even thefe , by changing their. manner of life, or the place of their abode, are eafdy reduced to become gentle, and fociable. And therefore Ariftotle in the cefcription that he gives of man, makes Top. 1. 5. e. $, this as it were his proper paffion,TW/?« is by Nature a Creature mild and Tm r L*W^Efpccialiy if we judge of him, according to that general rule, that the fame Ariftotle laiesdown, Quid naturale (it, fpeElandnm in his qua bene fee undum naturam fehabent, non in depravatis; p$l. l.i.c.). Wh.:t is the true nature of any thing, is heft known by thofe that are per felt in their own kind, and nut by thofe that are depraved and corrupted. For if we fteer our judgments by this Pule, we cannot but acknowledge ma?ito be inhis own nature, the moft meek^, gentle, and peaceable creature of all others : as having nothing, by nature given him, whereby either to offend others or to defend himfelf: Befides as Nature hath made him the.gentled of all other living Creatures ; So ( as Philo obferves ) hath flie made him fociable, nay greedy of Society , and hath a'fo fitted him thereunto by giving him that excellent Ornament of fpeecb, where- with his Paffions, though never fo fierce and raging, are fuddenly, as if by fomefpellor incan- tation, becalmed. Another ipecies of jus, as taken for a Law, there is, which we call voluntary, becaufe X 1 1 r. it is derived froai the will; which i> either Divine or humane. Voluntary We fhall begin with that which is humane •, becaufe it is more generally known, La ^'i v and this is either Civil, or that which is more extended, or that which is more con- Humane Laws tr.iftedthan Civil. The Civil Law is that which arileth from the Civil power. The divided. Civil power is that which governs any City: Now a City is a compleat company of free-men, affociated for the defence of their own Rights, and for their common pro- fit. That Law that is of lefler extent, and arifeth not from the Civil Power, though fubjeft unto it, is various, comprehending under it that of a Father over his Children, that of a Matter over his Servants, and the like. That Law which is more extenfive than that which is Civil, is that of Nations, which derives its authority from the joynt content of all, or, at lead, of many Nations : I fay of many, becaufe there is hard- Of the VlYine Voluntary Law. BOOK I. — hardly any Law befidc-; that of Nature ( which alfo is ufually called the Law of Nations) that is common toall Nations-,yea oft-times that which is accounted the LawofNations in one part of the world, in another is not, as, we Ih all mew hereafter, when we treat or Captivity and Poftiiminy. Now the Law of Nations is proved in the fame manner as the unwritten Civil Law is, namely by continual fife, and the teftimony of men skil- ful in the Laws •, and therefore Dio Chryfoftome calls it the daughter of time and experi- ence, and to this purpofe are the Annals of former ages of lingular ufe. XV. The divine voluntary Law is that which is warranted by the exprefs will of God, The Divine (as maybe underltood by the very word itftlf) whereby it is differenced from the voluntary naturall Law, which infomefenfe may be termed Divine alfo. And here that which vl c was laid by Anaxarchus in Plutarch (though fomewhat confufedly ) may take place, namely, That God doth not will things becaufe they arejuft-, but things are therefore jaft, that is, rightly' due, becaufe he wills them. Now this Law was given by God ei- ther toall mankind, or to one Nation-, to all mankind we find that God gave Laws That tins vo- thrice. Firft, Immediately after the Creation of man. Secondly, in the Reftauration of vioeLawwas n ' ar 'k |l; d after tlie Floud •, and Thirdly, in that niore perfect reparation byChrift. ss obliging be- Thele three Laws do doubtlefs oblige all mankind, asfoonas, and as fir forth, as men lore the wri- arrive at the knowledge of them. ting of it in books or Tables, as :t was or isfince, is clear ; for firft, if the obliging power were only from the time when it Jwas writ- ten by Mofts, they that lived before Mofts were no waies obliged by it, becaufe till then it was not written. Secondly, then the obligation muft needs extend itfclf toall tho parts of the Law. fo written, and fo to every circumftance of the Ju- daical Sabbath, as well as to the acknowledgement of the only true God. Neither is it fufficient to fay, it was written in the times of Adam and Noah, it being uncertain unto us now, whether there were fo Ancient a Record or not, much more, * whether that which was written, were as the Tables of the Law, written by the finger of God. * Dr. Hammond. The Six Laws given by Gcidm Adam and Noah,as Firft, that againft ffrange and falfe worfliip. Secondly that of bleffing the name of God, (that is, of adoring, invocatiog and praif;ng God J Thirdly, that of judgment, (that is) of erecting of Magiftratcsand requiring zdminiflration of Juftice. Fourthly, That of difclofing Nakednefs (*'. e. ) fetting bounds to lull and prohibiting Marriages, within fuchdegrees. Hfthly, That of fhedding blood againft Homicides. And Sixthly, That againft Theft and fiapine, and of doing to all as they would be doneunto, are no where recorded in holy Writ, yet were they as obliging to the J.vs that knew them, as any of the written Laws of Mofts ; we fhall fiiid them toucht at Ail. ij. 20. r^ut fo furely, that had it not been for thofe writings of the Jews that were never within their Canons, nor in ours; we of thefe timesJiad never kno.vn to what that reference belonged. And as all the Laws that were given to Adam, Noab and the reft of the Patriarchs, although not committed to writing, nor traduced to us, yet loft nothing of their obliging power to them, to whorrTthey were given: fo in the times of the new Law, although Chrift revealed much of his Fathers will in Sermons, and other occaftonal difcourfes, very few whereof are written, and thofe that are, were not fo written, until many years after his Refurrettion ; yet will no man fay, that becaufe they were not left written, therefore they did not oblige his Auditors. xvi. Of ail the Nations of the Earth there was but one to whom God vouchfafed to give In to'th™ 8 ' V ~ ^ aws P ccu '' ar to themfelves , which was that of the Jew s : What Nation, faith Mofes , Jtivs did not fi g reat to whom God hath given Statutes and judgements, fo righteous, as this whole Law? oblige flran- Deut. 4. '7. So likwile David, The Lord hath Jhewed his word unto Jacob , his Statutes 8"s. anc i ordinances Hwrolliael : Nonita fecit gehti ulli ; He hath not done fo to any Nation, net- 147- t i oer i 3ave t fjg i£ e athen k»owledge of his Laws. Doubtlefs then thole Jews (and among them Tryphon himlelfin his difceptations againft Juftine ) dogroflyerr, who hold, That even Foreigners^ if they would be laved, muft fubmit to the yoke of the MofaicalLavv. For that Law binds none but thofe to whom it was given, and who thefcare, the Preface to the Law it felf will plainly declare •, Audi lfrael , HearO lfrael, faith the Text; And every where we read, that the Covenant was made with them, and that they were chofen to be the peculiar people of God •, which Maimonides acknow- ledged to be true, and proves it out of Deut. 33. 4. But even amongft the Jews, theiealways lived fomc Foreigners being holy men , and fuch as feared God, as the Syrophcemctan Woman, Mat: 15. 22. Cornelius, Mis 10. 2. The Grecians men- tioned AGs 18. 4. whom they called the pious among the Gentiles ; fuch as are term- ed 11 rangers , Lev. 22. 25. and a fojourner, Lev. 25. 47. whom the Chaldee Para- priraft calls an inhabitant that is uncircumcifed, whereof we may read, Exod. 12.45. who wasdiilinguilhedfrom aProfelyte-, who, though a Foreigner, yet was circumcifed, as appears by comparing this place with that of Numb. 9. 14.. Thefe uncircumcifed Sojourners Maimonides admits maybe partakers of the bleffings of the life to come. Rom. 2-?, 10. St - Chryfoftome upon the fecond to the Romans, where St Paul mentions the Jot, and Gentile, writes thus : What Jew, and what Gentile doth St. Paul here mean? fare - Ly thofe, ' faith he, that lived before Chrift, as Job, the Ninevites, Melchifedeck, Cor- nelius, Qrc. And what Grecians doth he difcourfe of! Surely not fuch as were Idolaters, but fuch as wor pipped God according to the Law of Nature, who fetting afidethe Jewift) Cere- monies, rcligioujly obferved all things that appertained to an holy life. And again , The Gracian he calls, not him that worf lipped Idols, but him that was pious and devout, though he fubmitted not to the Jewifi Rites. And thus likewife doth he expound that of St. jm. Paul : To him that is j without Law, as bcinr free from the Law. And in'another place, A Chat. i. The Lam of Mofes peculiar to the Jews. 9 A Greek.be calif not him., that was given to Idols, but him that invoked the true God, Ontt.2. a- and yet observed not the Jewijh Ceremonies, as their Sabbaths, their Circumcifion , their ab- J * Unions and the like \ but yet endeavoured to jleer the whole courfe of his life, according to the Rides of wfdom And true piety. Now thefe, as the Hebrew Doftors themfelves teltify, were bound to live in conformity to the Laws given to Adam and Noah, ab- ftaining from Idols and Blood, and from other things hereafter expreft, but not to the Laws peculiar to the Jews ; and therefore, whereas it was not lawful for they™-* to eat the fleih of any thing that dyed of it felf, yet it was lawful for the ftranger living among them fo to do, Bent. 14. 21. unlefs it were to fome particular Laws wherein it was cxprefly provided that as well the ftranger as the home born was bound to obferve them. For we read that it was lawful to the ftranger, that never fubmitted to the Moiaical Law, to-worfhip God even in the Temple at Jerufalem; yet fo, that he flood in a particular place by himfelf, feparate from that of the Hebrews, as you may read 1 Kings 8. 41. Jo. 12. 20. Aft. 8. 27. Neither did EUjba enjoin Naaman, nor Jonas the Nincvitcs, nor Daniel Nebuchadnezzar, nor the other Prophets perfwade the Syrians, MoMtes, or tAzgyptians, unto whom they wrote, that there was anyneceflity at all for them to fubmit to the yoke of the JewifhLaw. And what I fay here of the whole Law is true alfo of Circumcifion, which was as it were, the intro- duction unto it, with this only difference, That to the whole Law of Mofes, the Ifraelites only w.ere bound, but to that of Circumcifion all the poflerity of Abraham : And from hence it was, that the Uumems being the ofF-fpring of EJ an,. Jfmael, or Centra, were compelled by the Ifraelites to be circumcifed as both the Jewifh, and Grecian Hiftories inform us. Befides of all other Nations , that of St. Paul holds Rom. 2. 14. true, Seeino- that the Gentiles who have not the Law, do by Nature, the things of the Law; (that is, by their own manners and Cultoms, flowing from the original fountain of rca- lbn ) ( unlefs any man had rather referr the word, Nature, to the words foregoing, thereby oppofing the Gentiles to the Jews, who as foon as they were born had their Law inftilled into them ), thefe having not the Law, area Law unto themfelves, as(liew- ing the work, of the Law written in their hearts, their thoughts and Confciences mutually accufmg or excufmg themfelves. And that alfo in the 26th verfe of the fame Chapter, If the uncircumcifwn keep f he Law, fiall not his uncircumcifwn be accounted for Circumcifwti. Thus doth Chryfoftome expound that place of St. Paul before cited, The Gentiles by Na- ture, that is, by the very Dittatcs of Right reajon: And prefently after in this, faith he, arethey to be admired , That they flood m no need of the Law to guide them. And that infiead thereof, they were guided only by the life of reafon and the light of their own Confciences. Thus alfo doth Tertullian argue "againft the Jews of his age •, Long, faith he, before Mofes wrote the Law in the Tables of ft one, there was {as I willjufiifie ) a Law naturally underftood and ebferved by the Patriarchs. And therefore Ananias the Jew in Jofephus did Ant - llh - i0 ' rightly inform Iz,ates Adiabenus, That God might be duly worjhipped and well pleafed with us, Although we were not circumcifed. And Triphon himfelf grants this to juftm , That there was fome hopes left him of a better condition, though he did perfifl in the way of his own Phtlofophy. Now the reafons whyfo many ftrangers among the Jews were circum- cifed, and thereby obliged to keep the Law, (as St. Paul expounds it) were, partly ^iiynVaiwers that they might partake of the priviledges of the Jewilh Commonwealth, for Profe- wcrecircum- ly tes enjoyed the fame Rights with the Ifraelites,as may be gathered out of Numb. 1 5. and is cifed. plainly afftrted Exod. 12. 27. And partly, that thereby they might be made capable Gal. 5.3, of thofe Promifcs which were not common to all Nations, but peculiar to the Jews only : Although I cannot deny but that there grew up afterwards an erroneous opini- on,affirmingthat without the pale of the Jewifh Church there could be no Salvation. From hence then we may colleft •, that we Gentiles ftand obliged to no part of the Mofaical Law, as a Law properly fo called, becaufe all obligation beyond that which arifeth from the Law of Nature, is derived from the will of the Lawgiver. But that it was the will of God, that any other Nation befides the Jews fhould be bound by that Law, cannot be made ou,t by any folid arguments ; we need not therefore, astoour felves, prove the abrogation of that Law, becaufe it cannot be (aid to be abrogated as to them, whom it never bound : yea even to the Jews themfelves the obliging power was abo- lifhed, as to the Ceremonial La w.,as foon as the Evangelical Law began to be promulgated j which was plainly revealed to St. Peter, Acts 10 15. And as to the reft, afterthat people Aftsio.ij.j ceafedtobe a people by the deftruflion of their City, andthat general defolation that fucceeded,without any hopes of reftitution ; but we who are ftrangers are not freed from that Law, bytheadventof Guilt, but by Chrift we who before had nothing but afaint and obfeure hope, placed only in thegoodnefs of God,are now ftrengthened by a clear and firm Covenant, alluring us that we alfo may grow up together with the Jews, ( being ti e fons of the Patriarchs ) into one Church, the Judaical Law, (which was that Partition-wall that kept us alunder) being now taken away, asSc Pan! tdiifostothc Ephefians. Eph, 2. 14. C Since IO The Gentiles by guidance of Reafon, did the works of the Lefts . BOOK I. XVII.' What Chili- ans may ham from rlie Mo- feical Law. rfal. 19. 8. Kom. 7. 12. Vid. Chryfoft. ad 1 ad Rom. juxtafintm. Chriftian Princes may frame their Laws accord- ing to thofe of Molts, unlefs in three cafes. j)e Pudicitia. Ve yirginitate 94. On the firft of St. Mat. Heb. 7. 19. 8.4. Rom. ii. 5. Gal. 325. • Since the Mofaical Law cannot diredly oblige us fas hath been already proved) let ns now fee of what other ufe it will be to us, as well in this tale of War, asjn the like doubtful cafes y the knowledge of this being very neceffary for the clearing of diverfe cafes : For in the firft place, from hence we may be allured, that what was heretofore Commanded in that Law , is not repugnant to the Law of Nato fince the Law of Nature is (as I have already laid ) perpetual, and immutable, no. thing can be commanded us by God contrary to this Law, becaufe God can never be unjuft. Befides the Law of Mofes is (as the Pfalmilt fpeaks ) pure and right, and as the Apoflle faith, Holy jitft and good •, which places are to be underftood of the pre- cepts of the Law only. ' But as to the permiffions of the Law we mull fpeak of them inore diftinftly : Now legal permiffion ( for that which refpecfts the bare fac~t and fignifies the removal of impediments only, I fhall not here meddle with ) is either full and perfect, which gives us a right to do fomethings altogether lawfully •, or lefs lull and imperfect, which gives us only an impunity with men, and a Right that no man (hail give us any lawful lett, or impediment in the doing of it. Concerning the rormer of "thefe, the fame may be faid as is of pofitive precepts, namely, That what the Law thus permits, cannot be contrary to the Law ol Nature, but of what is per- mitted in the latter fenfe , the cafe may be other.viie: but this collection takes place very rarely. Becaufe where the words permitting are ambiguous, it is much more convenient for us to judge of whether of" thefe two Permiffions, it is to be underftood by the Law of Nature, than by arguing from the manner of the permiffion, to proceed to judge of the Law of Nature : In the next place, Soveraign Princes, being Chrifti- ans, may from hence learn, to form their Laws according to thofe given by Mofes; unlefs it appear that thofe Laws were fuch as did wholly relate either to the coming ofChrift, or to the Evangelical Law not then revealed-, or that fuch Laws are contra- ry to what Chrift did, either in general, or particularly, command. For excepting thefe three cafes, no other can be imagined , why what tJMofes commanded fhall now be unlawful. Again we may hence learn, that whatfoever was enjoyned by Mofes, which may ferve to the improvement of thofe vertues which Chrift exafted from his Dilciples, ought now to be as ftrictly ( if not more ) obferved by us than hereto- fore it was by them : The reafon whereof is this, becaufe what vertues foever Chrift requires of us, as humility, patience, love, &c. are to be performed in an higher degree, than they were under the ftate of the Jewifh Law : And not without good reafon ' becau(e of thofe Celeftial promifes that are held forth unto us in the Gofpel, which are more clear than under the Law. Our Chriftian liberty, faith Tertullian, is no way injurious unto imocency, for the whole Law as to piety, truth, conftancy, chaftity, juftice, mercy, benevolence, and modefty, ftands yet unrepealed. Nay, a larger proportion of thefe ( faith Chryfoftome ) is expelled from us, becaufe the graces of the fpirit are more plentifully poured down upon us, than they were upon them. Athanafuis alio tells US , That Chrift makes the precepts of the Law to be of a larger extent than Mofes did : For Mofes faid only Thou fljalt not kill; but Chrift Jaith, Thou [halt not be angry unadvifedly : Mofes faid, Thou, (halt not commit Adultery \ but Chrift faith, Thou flialt not look, to lnfl after a woman. And therefore the Old Law in companfon to the New is faid to be wea\, and not without blemifi. And Chrift isifaid to be the end of the Law. But the Law, our School Miftrifs , or our guide to lead tis unto Chrift, Gal. 3. 25. So the Law of the Sab- bath, and that of Tithes, do oblige us Chriftians, not to yield a leffer proportion of time' for the worfhip of God, than a feventh day, nor a leffer proportion of the fruits of the Earth for the Priefts Alimony , and other the like facred ufes, than the tenth part. chap: Chap, i i. Whether it be lawful at any time to make War, i i C H A P. 1 1. Whether it be lawful at any time to make War. I. That to make War, is not repugnant to the V I. Certain precautions concerning this quefli- s Law of Nature? proved by reafon. oh : whether War be repugnant to the Law I I. By Hifiories. of the Gofpel f III. By confent. VII. Arguments for the negative opinion out I V. That it is not repugnant to the Law of of the holy Scriptures. Nations. VIII. The arguments out of Scripture for the V. That the voluntary Divine Law, before Affirmative, avfwered. Chrift, was not again f: it, proved; and the XI. The confent of the primitive Chrifiians objections to the contrary, anfaered. concerning this, examined. HAving thustaken aview of the fprings from whence all Rights flow, letusnow I. begin with the moft general Queftion, Whether any War be juft, or whether it be The Law of lawful at any time to make War ? But this very queftion with others that follow are ag aj"fu t S . to be dfcuft in the firft place by the Law of Nature. Cicero in feveral places very learnedly proves, out of the books of lome Stoicks, That there are fome principles inftill'd into us by Nature her helf, as foon as we are born •, as to love our felves, and to hold nothing dearer unto us, than our felves •, and in order to the confervation of that being, that (he hath given us, to love and rejoycein thofe things which conduce to thefafety of the whole body, and of every member thereof: and to abhor thofe things that tend to its deftruction. Hence it comes, that there is no man but being left to his own choice, had rather that all his members fhould be proportionable and entire, than by u(e broken or crooked. Therefore our firft duty ( according to Natures inftindt ) is to defire thofe things moft, that are moft agreeable to our own Nature, and to avoid thofe that are deftruftive unto it. But thefe things thus known, and reafon beginning to Jprout forth from her latent leeds, then our lecond duty is to follow fuch things as are agreeable to reafon it felf, which is ever more to be preferred before thofe that are convenient to the body ; and confequcntly to embrace thofe things that accord with juftice and honefty, rather than thofe whercunto we are led by fenfe and appetite ; becaufe the Principles of our Nature do chiefly commend us to right reafon, as to our beft guide and protedtrix. For as Nature in all other things never proditceth her bcfl and choicefl,fntits until fie arrives c.tmatnrity\fo neither doth humane nature her felf produce hir befl ope- R'8' K reafori rations, until reafon grows up to perfection. And therefore Should Reafon it felf be much jln.^'"'^ 5 dearer unto us, than thofe things whereby we arrive unto it. Now thefe things being sen.*.p.\i±i undeniably true, and without any farther demonstration by all men of found judgment Ep. 70. 121. granted; it follows that in examining the Law of Nature, we find out, what is agree- ia 8. able to thofe beginnings or firft principles of Nature : and then that we proceed to that, which though in order of time later, yet is much more worthy to be followed -, and that not as accepted only, if it may be granted-, but as that, which by all means ii to be required. Moreover that which we call, honeft, according to the diverfity ol the matter, is fometimes taken ftriftly, fo as to confift (asl may fay ) in a very Honefty con- point, from which if a man deviate on either fide, he falls into vice •, and fome fideridtwti times largely, for that which may be commendably done, and yet blamelefiy either wa . !cs " r, ?ty:l left undone, or done otherwife. Now concerning things honeft in this latter fenfe, are oriargdy.For all Laws, both divine and humane, converfant, making thofe things due Debts, which whatfoever of themfelves are commendable only. Above, when we treated of the Law of Nature, may becom- it was queftioned whether any thing might be done, notunjuftly: But that we under- "> cn dably ftood to be unjuft , which had a neceflary repugnancy to rational and focial Nature. Now ye^maybe amongft the firft principles of Nature we do not find any thing repugnant to War; nay blamlefly un-- all things feem highly to favour it,for both the ends of War ( being the confervation both done, of our lives and Limbs, and the acquiring or retaining of what doth neceflarily con- duce thereunto) are moft agreeable to Natural inftinct. And to do this by force, if Jiecefllty require it, is a like natural •, for why elfe hath nature given unto every Crea- ture ftrength, to help and to defend it felf ? All forts of Annimals, faith Xtnophon, are ex- pert in fome kind of War, having no other inftructer than Nature. C 2 JlasH 1 2 Whether it be lawful at any time to make War. BOOK I. Each, both its enemy, and preferver knows ; She weapons gives, and how to ufe themjhews. So likewife Horace : Who taught the Woolf to bite., the Oxe to gore, ' The Horfe to kick ? all's fet on Natures fcore. But Lucretius yet more fully : All beafis, their power to hurt, full well can tell; Calves, ere they fpr out, knowing where their Horns fliould dwell'-, With angry Brows, their urging foes repel. To the like purpofe is that of Martial: The Calfe with unborn d brows to fight prepares. Dwovefu. Every living creature , faith Porphyry, is taught by Nature wherein its ftrength, and where- Animal. i n it s xvcaknefs lies : and accordingly to expofe the one ; to defend the other : the Libard makes ufe of his teeth, the Lyon of his claws and teeth ; the Horfe defends himfelf with his Hoofes , and the Oxe with his Horns. Wherewich accords that of Galen , We fee every living Creature making ufe of that part for its own defence, wherein it conceives it felf ftrongejl ; the young Colt will kick, with his Hoofs before they be hardened; and the Calfe Vt iifit pmiirni. threaten with its head, though it have no Horns. And in his book of the life of the members, he tells us, That man is a creature, fitted by Nature either for War, or peace i for although he be born unarmed, yet hath Nature given him hands apt to provide, and to make ufe of Arms : which Infants, we fee, do of their own accord without inftruclion. It was well Dijlatiii.'. J i. obferved of St. Ckryfoftome, That to all Creatures who want the ufe of re af on, Nature hath affixed Arms to their bodies, as to the Oxe horns, to the Boar Tusks, to the Lyon claws : But to me, faith he, bath God affigned Arms notaffixtto my body, but without it, hereby flitw- ing that he intended man for a gentle creature, and that it was not lawful for me at all times to make ufe of fuch Arms. For as I often lay them afide , fo Jfometimes affume them, that therefore I may be the mot e free and at liberty, and not alwaies compelled to go armed ; God though he hath given me Arms, yet hath placed them without me. Arifiotle alio tells Ms, That hands were given unto man inftead of a Sword, a Spear, or any other wea- pon-, becaufe he can thereby make ufe of all. Hence then we may conclude, That in the rirft principles of Nature, there is nothing that is repugnant to War. But if we will examine the Lawfulnefs of War by right reafon, and the Nature of humane Society, which is the fecond and molt perfect rule to judge by •, we /hall plainly per- ceive that all manner of force is not thereby forbidden, but that only which is re- pugnant to humane Society, that is, which invades another mans Right : for the main end whereunto fuch Societies were at firft entred into, was that the whole fliould en- gage it fclf, that each part thereof fliould freely enjoy its own, which without much difficulty may be prefumed to have been in force ; although that which we now call Dominion had not been introduced. Becaufe our lives, our limbs, and our liber- ties, had even then been our own, and could net without manifeft injury have been in- vaded, or taken from us. Solikewife, to have made ufe of fuch things as were then, in common, and to have con fum'd as much of them, as was neceffary to fuftain Na- To rob ano- ture, had been even then the right of the Occupant. Bui imce Dominion hath been either therismore by Law, orcuftom eftabliflied, this is much ealier to be admitted and underftood , which againft Na- j fhall take leave to exprefs in Cicero's own words * : Topurloynfrom another that which is his, nefs C imDri- or to enrich our fehes by the fpoil of others, is more repugnant to Nature, than (icknefs , poverty, foniiicnt, or imprifomr.ent, banifliment, yea than death it felf: For it difjohies that Contignation that there than death, is, or fliould be betwixt mankind ; for if this ie admitted, it muft tieccjfarily disjoynt, and break * Ve ofrc. 1. 3. i fl pcces,that fwect confoctationthat there is between man and man;than which nothing can be more agreeable to humane Nature. If every member of the body (hould be pojfefl with this opinion, That it fliould enjoy better health, if it could attratl unto it felf the nourifliment of the mem- ber next unto it, and fliould thereupon doit, would not the whole body Unguifli prefently and die} So if it were permitted that what one man foweth, another fliould reap , that what one man planted , another fliould receive the fruits of, or that one man fliould enrich himfelf by the fpoils of another ; it is impoffible that that Society fliould long fiand. For as it is mofi natu- ral for every man tslove himfelf bcft,and to feed andfupport himfelf rather than another , with what is his Chap, i i. Whether it be lawful at any time to make War. 1 2 his own ', fo there can be nothing more unnatural, or abhorring from right reafon, than for a man to take away from his neighbour that wherewith he Jhould fuftain himfelf ; or to improve his' own Eft ate by the ruin of his Neighbours. Neither is this more agreeable to the Laws of Na- ture and Nations, than it is to the municipal Laws of every City ; for to this point do they all fteer, at this they chiefly collime , this they all of them ftriUly command and enjojn, That every member of that Society fhould freely enjoy his own without fear or difturbance : For by this means is that excellent conjunction and Confederation between them preferved found and intire. And he that willingly breaks this Golden Chain of humane Society \ is by the general con* fent and ajiipulation of all people, adjudged as unworthy of humane Society : and therefore likefome noxious beaft is defervedly profecuted to Baniflmtent, bonds, imprifonment, yea and even to death it fclf. This then being agreeable to the Laws of Nature, and Nations, and being the end of all municipal Laws, muft needs be the Diftate of right reafon, and fo the voice of God him [elf: whereynto whofoever willingly conforms himfelf, will certainly fo moderate his de fires, that he will never covet what is not his own ; nor either by force or fraud impo- •verijh others for his own private gain; than which nothing can be more unnatural, nothing more unreafonable, nothing more defiruilive to humane Society. Neither is it againft the Nature of humane Society, for a man to provide for himfelf fo as. he do not damnifie his Neighbour ; and by consequence that force which doth not violate another mans right is not un- juft: which the fame Cicero thus cxpreffeth , Since there are but two forts of decertations, the one by arguments, the other by plain force : the former being proper to men, the other to beaft s, we ought to make the latter our refuge, when by the former we cannot prevail. And in another place, Quid efi, ejuod contra vim fieri fine vi poffet ? What remedy can we have Ep.Fam.l.it, againft force, but by force? So Vulpian, To repel force with force, is aright that Nature or- ep. 3. dains for all creatures. Arms againft Arms, all Nations do allow. Ovid. What I have already laid down, namely, that it is not every War that is repug- T j. riant to the Law of Nature, may be farther juftified out of the Sacred Story. For This proved God by his High-Prielt Melchifedeck, did approve of the War made by Abraham , by Hiftorles. and his Confederates, upon thofe four Kings that came to plunder Sodom. Yea and Mclchifedcck blelfeth God for the Vi&ory ; Bleffed, faith he, be the moft high God who hath delivered thine enemies into thine hand, Gen. 14. 20. And yet had Abraham no fpecial Commiflion from God for it ; but was excited and perfwaded thereunto by the mere Law of Nature, being himfelf a man not only exceedingly holy, but very wife, according to the Teftimony that Berofus andOrpheus give of him. The War made by the Ifraelites upon the feven Nations whom God delivered up unto them, I purpofely omit •, becaufe they had a fpecial warrant from God to make War upon that people, who had highly provoked him : and therefore thofe Wars are in holy Writ called The Wars of the Lord, being undertaken by Divine not humane authority. More to our purpofe was that War made- by the Ifraelites under the condud of Mofes and Jofhua againft the Amalekites, who had forceably oppofed them in their paflage towards Canaan ; which though it was not commanded to be done, yet being done was approved of by God, Exod. 17. Nay farther God himfelf prefcribed unto Mofes certain general and Exod - 1 7> »4 y lading Rules and Ordinances how he fhould make War, whereby he fufficiently tefti- ficd, That War might fometimes be juft, though we have no fpecial command from God to make this or that War •, for there Mofes makes a manifeit difference between the ,,. ' ?0 " ,e ° cafe of the feven Nations, and the cafe of other people : Forthefe they might receive to mercy, but not them. And feeing he doth not prefcribe, for what particular caufes «they might make a juft War, it may reafonably be prefumed, that thole caufes may cafllybedlfcernedby the very light of Nature : fuchwas thecaufeof theWar thatjephtha made againft the Ammonites , for the defence of their boundaries, Judg. 11. And that which David was enforced upon, againft thofe who had violated the rights of his AmbafTadors, 2 Sam. 10. And it is worthy to be obferved what the Author to the Hebrews records, concerning thofe pious Heroes, Gideon,Bamck, Sampfon, Jephtha, David, Samuel, &c. That by faith, they fubdued Kingdoms, and put whole Armies of the aliens to flight, Heb. 11. 34. Where under the notion of faith, is included a full afTu- Heb. 11.34. ranee they had, that what they then did, was acceptable to God. And upon this prefum- tion alfoit was, that David is faid, by a wife woman, to fight the Lords battle, and made a pious and juft War, which could not be if all manner of War had beenut- lSam>: 5 28 = tcrly unlawful. To the authority of Sacred Story, we may add for greater confirmation, the univerfal j r j confent of all, or at leaft, of the wifeft of all Nations, concerning that force where- By examples. by our lives are defended. Cicero gives us the Teftimony of Nature it felf, Eft h n!e of fufferance that can be ordained. Out of a deep fence of' this natural Equity it was, that Cam (his hands yet reeking in his brothers blocd) paft this (entence Upon himfelf i And it frail come to pafs , that whofoever finds me, (l)ail kill me. But Gud in Gca. 4. 14. the infancy of the world, either by reafon of the (caruty of men, or becaufe this fin was rarely practifed , and fo the lefs need of exemplary punifhments to deter them, did by an Edict reprefs that which fcemed naturally to have been lawful, and adjudged the Ho- micide to wander as a vagabond, forbidding all men to have any commerce, or to make any contract with him, yet would he not have his life taken from him. Thus alfodid Plato ordain amongJiis Laws •, and that this punifhment was much ufed among the ancient Greeks, Euripides certifies in thele words: How wifely did our Ancefiors decree, That he that guilty was of blood, (lioiddflee Far from Commerce-, or fight of men, that he PuniJI'd by flight, rather than death , might be ? To the fame purpofe is that of Thmydiies : It is very probable that anciently fmall pu- nishments woe awarded to great crimes; but at length thofe being (lighted, they proceeded to death. Servius upon the firft book of Virgil, deicanting upon thefe two words, Solvctis, Luetis, faith.- That thefe words were derived from the payment of money, Antiquontm enim peer/a omr.es peciiniari* fulre : for among the Ancients all pitnijlmients were pccn>:iary. The like we find in Lattantuu, Hitherto it was accounted impious to put men to death, though never fo wicked; grounding -their conjecture upon that one notable example of Caw, That it was not the will of God that Homicides fhould be fo punifhed, whereupon it grew at length into a Law ; fo that Lamech not long after having committed the like fin (or rather (if he did. commit the like) for Mofes his words will bear this fence) yet by this one example promifed to himfelf the fame impunity, Gen. 4. 24. Neverthelels, though before the Flood, in the age of the Giants, through the remifnefs of punifhments men grew favage and outragions, killing each other like hearts', yet when after the flood, the earth was fully fbockt with men, lelt the fame licenfe (hould again increafe, God thought fit to reltrain it by a more fevere punifhment : So that correcting the lenity of the former age, what nature before judged notunjuft, he himfelf permitted to be done, namely, that he that (beds mans blood, fhould himfelf be put to death , and that he that killed an Homicide , fhould be held innocent. But afterwards Tribunals being erected, this power for many weighty rcafons was transferred to Judges only •, yet fo, that Come prints of that ancient cuftom were to be feen, even after Mofes his law was given (whereof more (hall be laid anon) as may appear by that right which was granted unto him that was next of kin unto him that had been flain. We have Abrahams practice to juftifie this glofs, who though he very well knew the Law that God gave unto Noah, Gen. 9. 6- yet took Arms againft the four Kings, prefuming on that principle of Nature , that to deftroy the deftroyer , was not difplealing to the God of Nature : Thus Mofes com- manded the lfraelites to fight the Amalekites , who with Arms oppofed their paflage into Canaan , having no other warrant for fo doing, than the bare Law of Nature: For it appears not that in this,as in other like cafes, he confuted with God at all, Exod. 17. 9. £ X0 j I7 _ 9i Whereunto we may likewife add , that Capital punifhments were executed not againft murthcr only, but againft other great crimes-, and that not amongft the Gentiles only, but even among the Patriarchs, as the ftory of Judah and Thamar doth clearly evince, Gen. 38. 14. rationally conjecturing by an Argument drawn from like to like, that it was Gen • 8< , . agreeable to Gods will, that the punifhment ordained againft Homicides, might juftly be inflicted on fudi as were notoriously criminous. For fome things there are that we equally value, i6 Wbetfer it be lawful at any time to make War. BOOK I. Tncefiuous iiiirriagesfor- biddenbefore Mofes. Gen. 20. 6. Job ;i. ii. Pfal. 10 1. 5 Frov. so. 8. value, gs we do our lives, fuch are our Honour , our Virgin Chaftity , cur Matrimonial Faith, arid fiicli things without which our lives cannot be well fecured •, as our reverence to our Prince, without which no fociety can be preferved. Now they that offend again,'! any of thefe, are no better than Homicides, and are therefore to be equally punilhed with rhem. Hence arifeth that ancient Tradition among the Hebrews, that God gave more laws to Noah than were recorded by Mofes, who thought it fufficient to infert them a- niong thofe laws which God gave to the Hebrews by himfelf. Inceftuous Marriages were certainly forbidden by fome Law before Mofes his time, for which God is faid to vifit the Heathen, and to caft their, out; for it had not been accounted as a fin, and fo not puniih- sbfe by defblatibn had there been no law to forbid it ■-, and yet we do not find it in any - expfefly prohibited, until Mofes records it as punifhed, Lev. 18. Among thole things that were commanded by God to the Sons of Noah, they reckon this, that not only Mnrther, but Adultery, Inceft, and violent Rapes were to be punilhed with death, which feems to be confirmed as well by the ftory of Abimelech, Gen. 20. 6. as by the words of holy Job, Job^i. 11. But the law given by Mofes adds the rcafons of thefe Capital puriilhments which were no lefs in force among the Gentiles, than among his own people, as it is melt apparent, Lev. 1S. 24, 25. and the 27, and 28. verfe. And clfe- vvhere he teiis us, that the Land being defiled with blood, could not be cleanfed but by the blood of him that fhed it , Numb. 35. ? 1, 33. And it were unreafonable to think, that God fr.onld indulge this favour to the Jsws only, that they might defend themlelves. by war and punifii malefactors with death, and at the fame time forbid it to other Nati- ons: Neither doth it appear that the Prophets were at anytime fentbyGod, to admo- niih or reprove either Kings or People for either inflicting Capital punifhraents on Male- factors, or for undertaking a war, merely, as war, as they were to reprove other fins. Bat on the contrary, who would not think but that feeing Mofes % judicial laws were oh- ferved to carry the ftamp of the divine Law, thofe Nations did wifely and pidufiy, who formed their laws according to that original? As queltionlefs the Greeks, efpecially the Atticksdid, and from them the Romans in their Laws of the twelve Tables. But let this fufnee to prove that the laws of Noah are not fo to be underftood as they conceive, who by them would evince all wars to be unlawful. But much more fpecious are thofe Arguments which are drawn out of the New Tefta- ment againft war: In the examination whereof Ifhall not take that as granted whkh fome do , that there is nothing in the New Teftaraent commanded (except matters of Faith an 1 the Sacraments) but what is commanded by the Law of Nature: For this, in that fenfe wherein they take it, I cannot admit it. But this I willingly grant, that there is nothing commanded in the Gofpel but what is naturally boneft : But that the laws of Chrift do not oblige us further than to what the Law of Nature doth by itfelf bind us,I ice no reafon why I fhould admit : And for them that approve of this opinion, it is a wonder to fee what pains they take to prove that Polygamy, Divorce, Fornication, which we find forbidden in the New Teftamenr, were by the law of Nature unlawful. Hence is that of St. "Jerome, Alia fttnt le^es Cefaris, aliaChrifti, aliudPapinianm, aliad P auliu no- fter pracipit : The laws of Caviar ate one , and the Laws of Chrift another , it is one thing that Papinian prefetches unto us, and another what St. Paul commands. 'Tis true, thefe are fucli as right realon tells us, to abftain from, is more agreeable to the rules of honefly •, but not luch as are in themfelves impious, but only as they are by the Divine Law forbidden. But as to tf)3t which the Chriftian Law enjoyns us, namely, That we fluuld lay down our lives one for another, who can fay that we are obliged thereunto by the Law of Nature : It ts for thofe that do not yet believe the Gofpel, to be guided by the Law of Nature , faith Juftm Martyr, of which opinion lskewife was Origen. Neither can 1 aflent unto thofe who hold that Chrift in his Sermon on the Mount, did only interpret, and (as it were) embowel the Law of Mofes: For thofe words fo often repeated , (Ye have heard that it hath beex faid to them cf old; But I fay unto yon: ) do plainly fignifie another thing, yea and theSy- riack and other Translations do clearly fhew, that by veteribm is underltood not by, but ■to them of old •, as in the oppofite word, vobis, is not meant by , but to yon. But thofe of old were none other, But fuch as lived in Mofes his time, and thofe layings that are there rehearfed , as fpoken to them of old, were meant as fpoken by Mofes himfelf, not by the Lawyers either in the fame words, or to that fenfe ; as Thou Jhalt not tyll , who- joeverbjlleth fltall be in danger of judgment ", Thou pah not commit adultery , whofoever f,:all put away his Wife, let him give her a Writing of Divorcement : Thou (lialt not forfwear thy felf, thou flialt perform unto the Lord wine oaths : An eye for an eye, and a tooth for a tooth , (that is, thou mayft exact, this in judgment) fo thou flialt love thy Neighbour (that is anlfraelite) and hate thine enemy ; that is , thofe feven Nations with whom they were forbidden to contract friendfhip , or to whom they ought to fhew no mercy ; unto whom we may add the Amalekites, with whom they were bound to have a perpetual war, Dfwr.25. 19. Now the better to underftand the words of Chrift, we muft neceffarily underftand that the VI. Cautions, concerning the lawfulnefs of war by th; Gofpel law. 1. Caution. John 3. \6. Ad zenam. Caution 2. Exod. 2c. 13. Levit. 20.21. Exod. 2c. 14. Deut. 24. 1. Exod. 20. 7. Lev. 14. 20. 19. 18. Exod. 34. 2. Deut. 7.' 1. Exod. 27. 19. Chap, i i. Whether it be lawful at any time to make War. i 7 the Law given by Mofes will admit of a twofold conftruction, either in fuch a fenfe, as A twofold is common with all humane Laws, namely as it reftrains men from grofs fins by the fe nc . e ° f M>* fear of publick punifhments, Heb. 2. 2. And fo it was given by Mofes to reftrai» the ornai. ' Hebrews in the ftatc of a Civil Government, Heb. 7. 16. Where it is called the Law of a carnal Commandment, as it is alfo in another place called the Law of Works , r oiu *, s V Rom. 3. 27. Or it is taken in a fenfe more proper to a Divine Law, namely, as it requires alio the purity of the mind, and fuch duties, the omifiion whereof, no hu- mane Laws do punith. In Which fenfe, it is called a fpiritual Law, Rom. 7. 14. Conr- Spiritual, forting the foul, Pfal. 19. p. (which the Latins make the 18th.) The Pharifees and Lawyers contenting themfelves with the Carnal part of the Law, wholly neglected the fpiritual as fupei fluous ; and therefore never inftrufted the people therein , as not our own writers only, but Jofephus and many of their own Doctors do teftifie againft themi. But as to the fpiritual part alfo we muftknow, That thofe vertues which are required from us Chriftians, were either commanded or commendedjunto the Hebrews alfo, al- though not in that degree and Latitude, as they are unto us, which we have already proved. For a more perfect and exact obedience is now required from us, than was s u p ra , c b, t } formerly from the Jews ; becaufe the coming of Chrift doth heighten our hopes, by §. nit. far more precious promifes. And the graces of his fpirit which defcended unto them but as a little dew upon the Herbs , falls on us as fhowrs on the Grafs. Vnder the Law chyfoft.dt 'God did not bind, us up to fo great ameafure of vertue as he novo doth under the Gofpel ; then virg, c. 44, it was permitted to take fome revenge for injuries done , as to revtle them that reviled us, we might exaH an eye for an eye , a tooth for a tooth ', it was then permitted unto us to fwear, though not to for fwear, and to hate our enemies : It was not as yet forbidden to be angry, to put away a Wife that offended us, or to marry another ; nay, nor to have diver fe at the fame time. Great was the Indulgence of the Old Law in thefe and the like cafes. But fmce the coming of Chrift, the way to heaven is made much firaiter, and narrower than before , both by the addition of many new precepts not given in the old Law, and alfo by fl-raining up thofe that were fo given, to a much higher Key. Chrift: therefore oppofeth his own doctrine to the doctrine of the ancients, in both thefe fenfes:, fixlt becaufe his own took not hold of the outward man only, to reftrain it by pure negatives, as other Laws did •, but reftrained the inward man alfo obliging to pofitive duties, whofe omiffion was not punifhable by Mofes his Law. But alfo in the fecond place becaufe it enjoyned fpiri- tual duties, inthatheighth of degree, that neither Mofes , nor any other Law-giver, did ever reach ; whence it is plain, that what Chrift delivered, was not a bare inter- pretation of Mofes his Law, as fome would have it. But yet that thefe things fhould be known, is not only, pertinent to the matter in hand, but to many other purpofes, left we fhould attribute greater authority to Mofes his Law than indeed is fitor due un- to it. Omitting fuch arguments as are lefs convincing, the firft and principal Teflimony where- VII. by it may eafily be proved that all right of making War is not fully taken away by the That iris noc Evangelical Law , is that of St. Paul to Timothy : J exhort you, faith St. Paul, that d- repugnant to hove all things, Prayers, and fuplications, Jntercejfions, and giving of thanks, be made for all m ake War l ° men, for Kings andjuch as are in authority \ that we may lead a quiet and peaceable life in all God- 1 Tim. 2, i linefs, and honefty^ for this is good and acceptable in the fight of God our Saviour, who would 2, 3. have all men to be faved, and to come to the knowledge of the truth. From whence thefe three things are to be learned-,firft,that it is acceptable unto God that Kings be made Chriftians : Ar &- '• Secondly, that being made fo,yet they ceafe not to be Kings -, Which Juftin Martyr thus ex- preffeth,H^prrfy, faith he, that Kings and Princes may together with their Regal PoWer, retain a found and per fell mind. And this alfo in the third place we may learn,thatChriftian Kings fhould ufe their utmoft endeavours, That other Chriftuans may lead under them godly and Chriftian lives.But you will happilyfay,How? Surely the fcme Apoftle explains himfelf elfe- where thus,//e is the MmifterofGodfor thy good, and if thou do ill then fear : Non enimfruftra i^ e ,j g | lt f gladinm gerit ; For he beareth not thefword in vain, for he is Gods Minifier,an avenger to execute the Sword,' wrath upon them that do evil. Under the right of the Sword,is comprehended all manner of re- ftrainingor coercive authority, andfoit is alfo fometimes understood by Lawyers-, yet fo , that the chief and principal part, that is, the true and prober ufe of the Sword is not excluded. The Second Pfalm doth very much conduce to the underftanding of this palms. 1 power, which Pfalm, though verified of David, yet was much fuller and clearer under- ftood of Chrift, as we may collect out of Alls 4. 25. and AtJs 13. 33. and oat of Heb. 5. 5. Now that Pfalm exhorts all Kings to kifs the Son of God with reverence, that HowK j h \ is, to exprefs themfelves his fervants as they are Kings*, for foSt. Aug. rightly expounds f e ^Goda<; that place, whofe very words as being pertinent to our purpofe, found thus, Herein ,faith he, Kings. do Kings ferve God according to his command, as Kings, when they encourage vertue, and deprefs vice not only in things appertaining to humdne Society, but in things appertaining alfo to the worfliip of God. And fo in another place •. How-, faith he, do Kin^s ferve the Lord D hi I 8 mother it be lawful at any time to make War. BOOK I. AJBonif. Kp. i n fear, nnkfs it be in prohibiting, and by a Religions aujterity punifliing all manner of im- piety ? For to fcrve God as a man, it one thing, but to ferve him as a King is another. And a' little after, Herein do Kings ferve God, askings-, when in zeal to his ftrvice, they do thofe things which none can do but Kings. Arg. 2. The fecond Argument, whereby we prove that all Wars are not unlawful, is drawn Rom. ig. f ronl t hat place of St Paul before cited in the 13th to the Romans, where it is laid, That the higheft powers, and fuch are thofe of Kings, are ordained of God, and that Kingly Go- power is therefore called Gods ordinance. From whence we inferr the neceflity of vcmment. our fubjection, together with that honour and reverence we owe unto them, and that, rf// ed by St ' not *° mucn out °f ^ ear ' re g arc >ing tne power they have to hurt, and punifh , as out of Confcience, as it is Gods ordinance, and out of a ftrong perfwafion, that in refilling it, we refiftGod himfelf. Now if the thing underftood by the word , Ordinance, were only that which God permits, and will not hinder, as all actions that are vitious, then would there follow no obligation of honour or obedience, efpecially that extended to the Confcience ; and therefore the Apoftles whole Argument, would inftantly fall to nothing, whofe main fcope was to extol this Regal power, which if wicked, he could never do, but . by the- fame Argument he might as well have commended Theft, and Robbery. It mull neceflarily follow then, that by this ordained power, we underftand fuch a power, as God doth efpecially approve of-, and then we may fafely inferr, That feeing that God ' cannot will things contrary to himfelf, that this power isno ways repugnant to that will of God, which is revealed in the Gofpel, and which obligeth all men to honour and obedience: neither doth it at all weaken the force of this Argument, That at that time, when St. Pad wrote, all Kings and Princes were ftrangers to the Chriftian Faith. For in the firft place, this is not Univerfally true ; for even at that time Sergitu Paulas be- Aft. 13. 12. j n g p ro p r£ tor ot Cyprus had given up his name to Chrift long before, Alls. 13. 12. Be- fides, this difpute isnot concerning perfons, whether pious, or impious, but concern- ing the Kingly function, whether it be ordained of God, orufurped by men, which St. Paul feems here to determine , plainly aflerting, That ordinance to be from God : and thereupon concludes, That it ought to be honoured and obeyed, and that, not out- wardly, only for fear, butevenintheinmoftreceffesofthemind, where God alone doth 26.' properly reign. Chriftianity then doth not aboliih Soveraignty ; Nero and Agrippa t though they had received this faith, yet had ftill remained, the one an Emperor, the other a King •, which neceflarily inferrs the power of the Sword. For as under the Law, See chpfofl. in t h e Sacrifices were reputed holy, though offered by Hophni and Phineas, Priefts unholy: tit urn. '" f° Pi a res e fi imperium, quamvis ab impio teneatur; The Funtlion is Sacred, though the perfon be never fo wicked: SWwas anointed King, as well as David. Ar g- 3- A Third Argument is drawn from the words of St. John the* Baptift, who being de- manded by the Jewifh Souldjers, what they fhould do to flee from the Wrath to come, did not command them prefently to lay down their Arms, and defert their calling, though they fought then under the Roman Banners, as in all probability they would have done, had it been contrary to the Chriftian Law to make War : but allowing their calling, he only labours to reform the abufes of it, exhorting them to abftain from acts of un- lawful violence, and fromfalfe accufing, and to reft content with their wages, Luk. 3. uke 3. 14. ^ g ut ^j.^ f ome bj e ct, That there wasfo great a difference between the precepts of Chrift, and the prescriptions of the Baptift, that the Baptift feems to preach one Doctrine, and Chrift another ; but this we cannot admit, firft becaufe both of them declare the fum and fubftance of the Doctrine they intended to preach, in the fame words, Repent for the Kingdom of Heaven is at hand; fo begins the Baptift, Mat. 3. 2. And fo Chrift, Mat. 4. 17. And Chrift himfelf faith, The Kingdom of Heaven, that is, The Jtm call the new Law ( for it is the manner of the Hebrews, to call their Law by the name their Law, f Kingdom) began to fuffer vjplencc from the daies of John the Baptift, Mat. n. 12. Kingdom. j ^ R 1S ^jj to preach repentance for the remiflion of fins, Marl^ 1.4. So did the A- poftles in the name of Chrift, Ails 2. 38. John required fruits worthy of repentance, and threatens deftruction to thofe that do not produce them, Matth. 3. 8, 10. He requires alfo works of Charity beyond the Law, Luke 3. 11. The Law alio is faid to continue till the day? of John, that is, until the new and more perfect Law /hould with him begin, Mat. 11. 13. And for this caufe it is that John is faid to be Pro- phetis major. Greater than the Prophets, Mat. IP, 9. Luk^ 7- 26. and that he was fent to give knowledge of Salvation unto the people, Lti\. 2. 77. and to preach the Go- Atfs 19.4, fpel, Luk. 2. 18. Neither did John ever diftinguifh Jefits from himfelf, by any difference Job. 1. 19. that there was in their Doctrines, (but only, thus, that what John declared generally iviat. 2.. 11. . an( j C onfufedly, was more diftinctly delivered by Chrift, who was the true light ) but by luk.'/.i/. *his, That Jefus was the Meflias that was promifed, the King of an heavenly King- dom, who Jhould give the power of the holy Ghoft to thofe who mould believe on him. The C h a p.. i i. Whether it be lawful at any time to make War. The Fourth Argument, and which feems tome ofnofmall force is this. That if by the Arg. 4 Gofpel all power were taken away from the Magiftrate to execute capital puniihments, j^„ r ^s w0 together with that of the Sword, to defend their Subjects from Thieves and Robbers: f romt h e jjj how foon would the Chriftian world be over-run with Rapin and violence, and what confequeucos a Deluge of wickednefs, of all forts would break in upontis? That this mull needs that would be the conlequence, we fhall eafily grant -, if we either remember what fad erFeJfts this folluw - remilhefs brought upon the old world :, or if we do but obferve, how hardly thefe fins of Rapin, Cruelty, and the like are retrained now, even by capital puniihments : For the fitpprcjfing whereof Tribunals , Laws-, and fo many kinds and degrees of funijhments are invented, laith Chryfufi. in firm ad Patrem fide tern Wherefore if Chrift had intend- ed to have introduced a new, and never before heard of form of Government j without doubt he would have declared it in fuch diftinct terms, and in fuch a plain drefs of words, asihould have been liable to no mifpSfio n ; as, Let no man hereafter adjudge Malefactors to death, Let no man take Arms to defend himfelf, or the like, which we no where read that ever he did : but whatsoever words are wreifed from the Scriptures to this pur pole, are either very general, or very obfeure. But equity it lelf, and common reafon will inftruct us thus much, That inpublifhing new Laws we * are toreftrain words too general, and to explain terms too ambiguous •, and rather to decline a little from the cpmmon acception of the words , than to admit of fuch a fenfe of them , as may introduce fo many mifclnefs and inconveniences *-, With it. ,;^>^S^V *fc~ VSVC X"A^&IT The Fifth Argument is this, That it cannot be concluded by any probable argument, Arg. j. j£y* t that the Judicial Law of Mofcs was ever abolilhed, till their City Jernfalemwas burnt, and ^ J with it, not the form only , but the very hopes of a Commonwealth did utterly vanifh. For • / - * ,'j^y neither doth Mofes prefix any term or period to this Law, nor doth Chrilt or his Apoltles >** * anywhere declare the furceafingofit ^unlefs as it feems to be comprehended in the deftru- t * ,l **"« ction of the Commonwealth : yea rather on the contrary, St. Paul faith , That the High Prieft was conftituted, that he might judge according to the Law of Mofes, Alls, 24. 3. And Chrift in the Preface to his precepts, Mat. 5. faith, That he came to fulfil the Mat. 5. 17. Law^ and not to deftroy it ^ which words if we referr to the Ceremonial Law, are not difficult to be underftood: for when thePi&ure ishnifhed, what need we the foul draught? The Ceremonial Law was fulfilled in him, it confuting in Types and fhadows, whereof the fubftance was Chrift-,but how could Chrift be laid to fulfil the Judicial Law, if ( asfome hold) he took it away ? And if the Jaw were obliged by the Judicial Law, till the diflblution of their Commonwealth, it will follow, That the Jews, though Chrifti- anized, in cafe they had been called to be Magiftrates, could neither have avoided it, nor have judged otherwife, than as Mofes had prefcribed. I, truly, having through- ly weighed all that can be faid, can find no ground at all, why any pious man fhould expound thole words of Chrift in any other fenfe : This I acknowledge, that many things were tolerated among the Jews before the coming of Chrift, ( whether as to outward impunity, or in relped of inward purity alio, Ifballnot now determine) which Chrift would not permit in his Difciples, as for a man to put away his Wife for every offence , and for a man injured, to require revenge by way of Reta- liation : but yet between Chrifts precepts, and Mofe s his permiffion, there may be fome difference, but no repugnancy •, for, under the Law, if a man did retain his Wife, or if he did remit revenge privately due, he could not be faid to break the Law, but to do that which the Law did chiefly require of him. But it is far otherwife in a Judge, whom the Law doth not permit, but enjoyn to punifh aMurtherer with death •, which if he do nor, he himfelf fhall be found guilty before God. Now if Chrift had commanded fuch a Judge, that he fhould not adjudge any Malefactor to death, this being contrary to Law, he had diffolved, and not fulfilled it. The Sixth Argument is drawn from Cornelius the Centurion,who received the Holy Ghoft Arg. 6 ( an undeniable lign of Juftificaionj from Chrift himfelf, and was baptized into the Prom the ex- name of Chrift by St. Peter \ yet do we no where read that he laid down his Com- »™,^ e ° f C *'" miflion, or that he was admonifhed by St. Peter foto do. But fome may lay, That be- ing inftrudted by St. Peter in the Chriftian Religion, it may be prefumed, that at the fame time he did refelve to defert his calling : whereunto I anfwer, That if it could be any where found amongft the precepts of Chrift, or infallibly proved, that Chrift did for- bid to make War, then what they fay were to the purpofe.^- But feeing no fuch precept is extant •, certainly it is much more probable,, that in this cafe of Cornelius, fbmewhat would have been faid againft it, if it had been held unlawful, that fo in after ages, men of that profeffion might not have pleaded ignorance of the danger incident to that fun- ction. Neither is it likely that in cafe the Centurion had then renounced his Military profeffion, St.- Lata would have omitted the recording of it, asufually he did in like cafes, as will appear by feveral places, but efpecially Atls 19. 19, D 2 ' The / /Up. #e &s& 2 o Wbetltr it be lawful at any time to make War. BOOK I. Arg. 7. the Seventh Argument we deduce from Sergius Paulas, of whom after his conver- fp ■ , Sir8t ~ fion there is not the lcaft mention made of his renouncing his Propraetorfhip, or of any admonition given him by St. Paul to doit: that which is not recorded, (being moll expedient to have been fb ) may be prefurried not to have been done at all. Arg. £. The Eighth Argument is drawn from the practice of St. Paul, who underftanding £ And of St. that the Jews had laid wait to kill him , acquainted the chief Captain therewith , '' ( who fent him a ftrong guard of Souldiers to l'ecure his perion-, which St. Pad did not refufe, nor did headmonifh either the chief Captain, or the Souldiers, that ic was not acceptable to God to repel force with force, which he had been ape enough to have done, Had he believed it to have been unlawful. Arg. 9. The Ninth Argument is taken from St. Pauls precept,for paying tribute for confeience whkh wa/to ^e, for of every thing that is honeft and juft, its proper end muft needs be lb: now the have been proper end of paying of Tribute, is to maintain the power of the Sword, whereby the in- paid, nocent are protected, and the nocent corrected or cut offBut that we render unto Princes Rom. 13. 6. their Tribute due, is a precept of the new Law, andbindeththe Confeience, as St. Paul teftifies to the Romans ; therefore it follows, that by the precepts of Chriftianity, the power of the Sword in the hands of the chief Magiftrate is honeft and juft : very per- B Ltr tinent to this purpofe, is that of Tacitus, There can be no peace amongft Nations TaitflumciA. without Arms, no Arms without pay f nor pay without taxes. So St. Aug. For this caufepay we Tribute, that Souldiers may have their wages to buy necejfaries. Arg. 10. The Tenth Argument is taken from St. Pauls fpeech, Aits 25. Jf I have wronged A6s 25. an y tna „ i gy. if j have done any thing worthy of death, I refufe not to die. So Ail. 28. lS. Aft. 28. 18. They found no caufe of death in me, faith St. Paid: Whereupon Jufline Martyr thus glofTl eth, J f there be any amongft us that live not conformably to thofe precepts, being only in name Chnfiians , that fuch fiwiild be puniflied, and that, by you, is our defire, as well as yours. From whence we may collect, that it was St. Pauls opinion, even after the Gofpel was publifhed , that there were fome crimes which in common equity deferved death : which very thing is granted by St. Peter alfo, 1 Pet. 2. 19, 20. But if it had been Gods will that no Capital punifhment mould have been executed after Chrifts com- ing, St. Paul might have purged himfelf:, but he thought it not convenient to inftil fuch prin- ciples into the minds of his hearers, as though it had not been as lawful then, as formerly, to punifh Criminals with death , wherefore he waveth this Plea, andfubmits to the ancient Law , If I have done any thing worthy of death', I refufe not to die. Now , having thus proved, that after the Chriftian Law was given, it was lawful to punifh obftinate Malefactors with death •, I take it to be fufficiently proved that it is Lawful for Princes • to make War, namely againft fuch a multitude of offenders, as fhall by force of Arms infeft a Nation, who unlefs they be by force fubdued will never acknowledge their own guilt. For though the power of thefe offenders, and their obftinate refolution may be a prudent confideration to perfwade Princes fometimes not to execute it ; yet certainly, it diminifheth nothing of their right foto punifh. -\- Arg. a. Thelaft Argument may be this, that the Chriftian Law did abrogate that Law of Mofes only, that did feparatc the Gentiles from the Jews, Eph. 2. 14. But thofe things which have the reputation of being honeft either by the Law of Nature, or by the unanimous confent of all Civilized Nations,the Chriftian Law is fofar from taking away, that it comprehends them under that general precept of all honefty and vertue, Phil.$. 8. 1 Cor. 11. 14. And as to the Capital punifhments of Malefactors, and the repelling of injuries by force, thefe maybe ranked among things laudable, and may well be referred unto thofe two excellent vertue*, Juftice and beneficence. But here, on the by, we are not to omit the error of fome, who wholly attribute the lawfulnefs of the Jewifi) Wars .-igainft the feven Nations to the grant, that God made unto them long before of the Land of £anaan : whereas this, indeed, may be one , but not the only caufe. For as well before, as after, the pofleffion of that Land, many pious and juft men did make War, by the guidance of mere natural reafon upon feveral other occafions. As King Da- vid did, for the affronts offered unto his AmbaiTadors , neither are thofe things which every man enjoys by the right of humane Laws lefs his own, than that which is given him by God himfelf, nor is that right either leffened or taken away by the Chri- ftian Law. VIII. Now by poifing thefe arguments with thofe brought on the adverfepart, the ju- TheArgu- dicious may eafily find whether of them are weightieft. And in the firft place, they adte'rfcopi- Ur S e tnat °^£f a )'> And it frail come to pafs, that the people (liall break their Swords into Plough- man anfwe- fiares, and their Spears into pruning hooks, Nation fliall not lift up Sword againft Nation, nei- red. ther fliall they learn War anymore. Which words of Efay, St. Chryfoftome applies unto that Efay 2. 4. univerfal peace that the world enjoyed under the Roman Empire •, Neither was it foretold tfeDew °" ! y> *" a ' tn he ' tbAlthis new Religion frould be firm, ft able and unfliakrn ; but that therewith Euftb. de 'prtp. there fhould come peace to the whole earth. But this Prophecy of Efay ( as I take it ) is 1 Chap, i i. Whether it be lawful at any time to nuke War. 1 1 to be underftood, either under fonie condition as many others are, as that fuch fliould betheftate of affairs, in cafe all Nations fhould fubrnit to the yoke of Chrift, and live according to his Law, whereunto there fhall nothing be defective on Gods part: .for molt certain it is, that if all were Chriftians, or all that call themfelves fo, would live after the rules of Chrift ; there would be no oecafion for Capital punifhments, and con- iequently no ufe at all of the Sword. So Jv.fiin writes of the Chnftians in his time , Nin pug ramus in hoftes, We, faith he, fight not againfi enemies : and that Fhilo Uibfics of the Efleni, There is none among them, that make either Javelins, Arrows, Swards, Helmets, sr any other in fir uments of War. So Chryfoftome, Si effet inter homines eju-tlis oporcct dilell.o, mil- las fore pwnas capitales ; If there were that perfebl love among men that there jhoiild be, there would be no need at all of Capital puni(lmitnts. Then alfo as Arnobhts fpeafcs, would Iron and Steel be converted into more innocent and profitable infiruments, than for men therewith to kill and defiroy each other. Or this place of Efay is to be underftood limply and pure- ly, as the words import ; and then it is apparent that this prophecy is not as yet accom- plilhed, but the fulfilling thereof, as that of the general converfion of the Jews, is yet to be hoped for •, but take it, as we pleafe, in either fenfe nothing can be from thence concluded againft the lawfulnefs of War , fo long as they that heartily endeavour to live in peace, are not fuftered to enjoy it .- Or as the Pfalmift hath it, whilftlbme are endea- vouring after peace, others are preparing themfelves for battel. Many arguments are M., r . 5 , ufually drawn from the fifth of St. Matthtw. For the refolving whereof, it is convenient that expojndeck we fhould remember what a little before was laid, that had our great Lawgiver intend- ed to have abolifhed all Capital punilhments, and this Right of making War, he would certainly have done it in moft plain and exprels terms, the matter being lb weighty, and fo new,and the rather, becaufe none of the Jews could conceive or imagin but they were ob- liged to Mofes his judicial Laws, folong as their Commonwealth fhould ftand. This being thus premiled, let us orderly examine what plain and concluding power, thefe places of Scripture have to evince the thing they are brought for. The Second place Anfwered. they urge is this, Ye have heard itfaid, an eye for an eye, and a tooth for a tooth ; but 1 fay unto you, do not re fiji him that doth thee an injury, but if any man fir ike thee on the one cheek, turn to him the other alfo. From hence fome do infer, That it is unlawful either to repel, or to avenge an injury, whether publickly or privately. But this cannot be enforced from the words of Chrift, who doth not there addrefs his difcourfe to theMagiftrate, but to the perfon injured •, neither doth he there fpeak of every injury, but of luch flight ones, as /i box on the eare, and the like : the precept following feems to reftrain the words pre- ceeding, as if they were too general, If any man will ' fue thee at the Law, to take away thy tib.ie patietf Coat) let him have thy Cloak alfo; which words Cyprian thus expounds, What is taken away '«■ from thee unjnftly, feek, not to recover. And folikewife Iren&m, If any man fi all take a- .,-. way thy Coat, do not grieve, as if thou wert deprived of it again fi thy will; but rather rejoyce, as ifthoH hadji given it voluntarily. And if any man pall compel thee to go with him a mile, go with him not grudgingly but willingly, not following him as afervant, but going before him as a guide. It is not every contcft in Law that is therefore forbidden, as St. Paul fecms to inter- pret that place in i Cor. 6. 4, 5, 6, 7. But he forbids Chnftians to go to Law for every trifle, or to convent their Brethren before the Tribunals of the Heathen, con- trary to the cuftom o£ the Jews , amongft whom it was a received opinion, Qui adduat negotia Jfraelitica ad extraneos, polluct nonien Dei; He that makes a fir anger Juige of any controverfie between- Jfraclites, pollutes the name of God: but Chrift to exercife ^the pati- ence of his difcipks would not have them cavil in judgment for things eafily reco- verable, as for a Coat or Cloak. For though they might do it Optimo jure, with thegreatefi Right, yet was it much more acceptable to God rather to fufter fuch lefles with patience, than to profecute the Law for them. Apolloniiis Tyanam denies it to be the part of a wife- man, to fue for a little money. There is no judge, faith Vlpian, that can dij approve of that P'-^'o/?. 2,15. man,whofets fo little by his lofs, ai not to vex himfelf for it with manyfutes, for that mans difpofi- tion that hates contention, is nowaiesto be dif allowed. What Vlpian there faith is approved of by all good men, and is no more than what Chrift there commands, collecting the fumandfubftanceofhis precepts out of thefe things that are mofthoneft and vcrtuous.But yet, thou canft not hence well conclude,that for a Parent or a Tutor to defend, or recover by Law,that which his Child or Pupil hath been wrongfully deprived of, and without which he cannot fubfift, being thereunto compelled, is any violation of this precept of Chrift. For it is one thing to contend for a Coat which haply we may fpare, and another thing to contend for that, without which we cannot live. IntheConftkutions of Clement, ic is faid concerning a Chriftian, If he haveafute at Law, lei him endeavour as foon as h» can to end it, though it be to his lofs. What therefore is ufually faid of moral duties , may alio be laid of thefe precepts, that they confift not in a point, like the negative precepts of the Law, from which we cannot deviate in theleaft without fin ; for thefe. have their hue ufque, their certain Latitudes, wherein we may walk fafely. So, in that 22 That it is not flgainft the Evangelical Law to make War. BOOK L that precept that follows,// any manfiiall compel thee to go with htm a mite-, go with him two. For trifles it He faith not, he tli.it compels thee ro go with him one hundred miles, this had been hard, l 5 J; ett " ^° becanfe haply it would draw us too far from our own neceffory concernments, and fo contend.^ ° r '' c » r J ai 7 cr damage done would be greater to our felves, than the benefit to him : But he mentions a mile or two only , which cannot much endamage us. The fenfe of the words then mull needs be this : In Rich things as are not very damageable to our felves, we are not too flridtly to infill upon our own right, but rather to grant more than is re- quired from us, that our patience and rcadinefs to do good may be known unto all. Thus Juftin Martyr expounds thefe words, What Chrift there faid, tends only to this, that we fhould behave our felves towards all men patiently, obligingly, and not prone to anger. But it follo.vs, Give unto him that ash, and from him that would borrow turn not a- vmy ;Tnah which words, if not undcrflood with fome limitation, nothing found barfher. He that takes no care for his Family, faith St. Paul, is worfe than an Infidel : Let St. Paul hirnftlf be Judge who was bell: able to expound his Mailers Law, and who exhorting the Corinthians to extend their liberality to the poor at Jerufalem, faith, Not that others jhotdd be cafed and you burdened, but that by an equality, your abundance fiiould fupply their wants : that is, (to borrow the words of Livy, in a cafe not unlike to this) that out of your ftorg ye may relieve the necejfuies of others. Dabo egenti, fed & ipfe non egeam, I will give to the poor, but fo, as that thereby I male not my ft If poor, faith Seneca. So alfo Chryfofiom, Cod requires thofc flings of its that are in our power to give : According to what a man hath, lakh St. Paul, and not according to what a man hath not. And he commends the TheHa Ion inns, that they gave above what they were able ; but yet he doth not exact the fame from the Acha- ianst To the hkepurpofe is that of Cfrus in Xenophon y What I find fuper abundant in mine owne(late, will be ftijficient to relieve the wants of my friends. By 'all which we may con- The indul- elude, That this precept of our Saviours (as all the rell which follow in this Chapter) are gencc of the to be under flood with fome equitable limitation, and not barely as the words import: e rew aw. -j^ Hebrew law to prevent the cruelty of Husbands to their Wives, did indulge unto them the liberty of Divorce , and to prevent private revenge, whereunto that Nation was too much addicted, gave liberty to the injured perfon to avenge himfelf, not by his own hand, kit by requiring it from the" Judges, according to the Rule of Retaliation •, which chrift wmcn Law was fo pleafingtothe Romans, that they inferted it among thofe in the 12 Ta- rtforms. bles, Si membrum rupit talio ejlo, He that breaks a limb fhallfujfer the like. But Chrift being Ma- iler of much more patience, was fo far from approving this Law, that he would not per- mit his difciples to repel fome injuries either by force or judgment. But v. hat injuries were thefe? Surely fuch as might eafily be born,not that patience was not commendable even in the greateil, but that he was content with fomewhat a more limited, patience : And therefore he inllanceth only in a box on the Ear , which neither endangers life nor limb, but imply es only a flighting or contemning of us, which doth not at all darnnifie us. Seneca in his Book entituled, Of a wife mans Constancy , diftin- guifheth between an injury and a reproach: The former, faith he, is naturally more grie- vous \ the latter more light, and to fuch only as are nicely bred, troublefome : Qua non Uduntur t fed effenduntur ', whereby they are offended, but not hurt. Such is the weaknefs and vanity of mens minds, that they tfteem nothing worfe than a reproach ; Jo we may find fsme fervants, that had wither be beaten with flripes , than to take a box on the Ear. So in another place, A reproach (faith he) is much lifsthanan injury, which we rather complain of than revenge, there beineth. But admit that the word, Neighbour, doth now extend it felf to all mankind , for as much as all are now fellow Denizens , allreceived into the Covenant of Grace, and np one people accurfed from God ; yet what was heretofore lawful for the Ifra'elites , will be as lawful for us, both being obliged to the fame duties of Love and Beneficence. But you may haply fay, That the Evangelical Law requires an higher degree of love than the Mofaical Law did : Even this alfo I grant with this allow- ance, that all are not equally to be beloved, our Parents and our Children are certainly to be preferred before Strangers , and our Neighbours before our Enemies. T0 true, A ^_ Pelagc faith St. Hierom , I am commanded to love mine enemies, and to pray for my perfccuiors; but dialog. 1. yet is it jttfi that IJliould love them equally as I do my Neighbours and kinfmen ? Is it equal that JJhould make no difference between my Friends and mine Adverfaries ? Surely the Laws of a well There are de- ordered Ajfetlioq do command me to prefer the Righteous before the wicked , and. the publicly %? & ~ fafety before the fafety of any private perfon. Now out of the very love we bear to the righteous do we put the wicked to death •, and out of our care to the publick peace, do we make war upon thofe that dilturb it : If therefore our Saviours precepts do admit of degrees, and it the greater obligation do tye us to the ftricter duty •, then are we not bound to preferve the nocent, when in fo doing we endanger , if not deltroy the inno- cent. That of Seneca is very well known, Torn omnibus ignofcere crudelitas efi, quamnulli; tib.i.Aeclm. It is as great a cruelty to pardon all, as to pardon none. Chryfofiom fpeaking of fucb humane punifhments as are inflicted on the obftinate , faith, that they praceed net from cruelty, but . from gooinefs. And St. Aug uftine affirms, That as there is fbmetimes crudelitas parcens, a cruelty in pardoning, fo there is fbmetimes mifericordia puniens, mercy in punifring. Thofe protections, therefore , that ripen fin by giving too great encouragement to fmners , are to be re moved: For ZsTotilas in Procopius fpeaks, Peccare, & prohibere posnas peccantium in pari SteB0t2 f fcjt. pono : He that commits a crime, and he that hinders a Criminal from due punijlimcnt , are alike q. 2 . faulty. Befides we are commanded to love our Enemies by the example of God himfelf, who caufeth the Sun to fhine and the Rain to fall, as well on the Evil as on the Good: And yet doth the fame God put a manifeft difference between them, vHfcing the fins of fuch as are incorrigible with heavy judgments in this life, and yet referving much heavier for them to be inflicted in the life to come. And thus are all thofe Objections drawn from thofe precepts, enjoyning Chriftians to mercy, lenity, beneficence, againft war and Capital punifhments-, eafily anfwered.For Almighty God though he pleafed to make himfelf known unto us principally by thefe Attributes of Gentlenefs , Long fufferance, Godspatience and Patience, John 4. 2. Exod. 34.6. yet do the holy Scriptures almoft in every pagefet doth not bin- , forth, and declare his indignation and wrath againft obftinate and contumacious finners, derhisjuftice. as Numb. 14. 18. Rom. 2. 8. whereof the Magiltrate is defigned to be the Minifter, Rom. 13-4. Mofes was highly celebrated for his meeknefs and gentlenefs, yet did he punifh Ma- lefactors with death •, and Chrift himfelf the moft abfolute pattern and mirror of meek- nefs and patience, being provoked by the obftinacy of the Jews ingratitude, is faid by a Parable to fend out his Armies to burn up their City , and to deftroy her Citizens, Mat. 22. 7. the like we may read Mat. 21. 44. and Luke 19. 12, 14, 27. And although the Roman Army were (as Chryfofiom obferves) the Axes and the Hammers, yet was it ehryfJn 1 Cor- Chrift himfelf that brought thefe calamities upon thern)^ according to his own predicti- 4. 21. ons , as well by Parables, as plainly and exprefly. Neareft unto their Matter, came the Apoftles themfelves in imitation of his meeknefs and # gentlenefs , who notwithltanding . made ufe of the power given them from above, in the punifhment of incorrigible finners, i„mmtLx. as is plain, \Cor. 4. 21. l Cor. 5.5. lTim. 1.20. . ,. Gnt.c.2^q.8. *t&mn-> A^<~ & ws-v rww ^«m& 24 ObjeSlions agaiuft tbelaivfuhiefs ofWaranfwered. BOOK I. Objeft. 4. Their fourtbObjection that is brought againft the lawfulnefs of war , is extracted Rorh 12 17 from ■&*»• 12. 17. Render unto no man evil for evil, provide things honeft in the fight of all men : If it be pojfble, as much as in you lyeth , live peaceably with all men : Dearly Beloved, * avenge not your felves, but rather give place unto wrath : * The vulgar Interpretation h,Dife>idnot your felies: For it is written, Vengeance is mine, I will repay it faith the Cut this word is often put by Chriftian Authors , in Lord: Therefore if thine enemy hunger feed him, if he thirfl tins fence of Avenging : ^expounds this place ■ him ^ -^ fgr ^ j- g ^ V y „ . very well, where he faith Reftf not nil , left ye de- & 1 • i j -6 & r ■, 1 J , light in revenge, which feeds the mind fat with other > i t on hts head : Be mt overcome of evil, but overcome evil mns misfortunes, viie infra Bo. 2. ch. 20. 0. 5. with good. But here alio the fame anfwer will lerve, as and 10. was given to the former : For at the very lame time when God impropriated to himfelf the Sword of Vengeance as his prerogative, faying Vengeance u mine ; at the felf fame time were Malefactors ~put to death by the Magiftrate , and laws prefcribed for making of war, and yet it was at the fame time enjoyned to the Jews to do good to their enemies (if their own Country- men) as Exod. 23. 4> 5. which notwithftanding did no ways diminifh either the right of making a juft war, or the execution of incorrigible malefactors, wherefore neither can thefe or the like Precepts now (though never io much enlarged) be wrefted to fuch a fenfe ; much lefs if we confider, that the dividing the Scriptures into Chapters and Ver- fes, was not don'e by the Apoftles, nor in their age, but long after, for the more eafie quotation of the Text when fit to be brought for confirmation : fo that what begins the Thefirftverfe i ?f /,t:o the Romans, Let every Soul be fubjetl to the higher powers ; and what there follows, was^annexed was annexed to thofe precepts foregoing, againlt taking revenge. But in this difiertati- to the pre- °n, St. Paul faith exprefly , that the higher powers are conftituted Gods Minifters, and cepts in the the executioners of his wrath (that is as to punifhments) upon thofe that do ill ; thereby Chapter fore- clearly diftinguifhing between that revenge, which the Magillrate inftead of God exacts takitf a8alnft for the publick good, being a part of his prerogative ; and that which every private man vengc 8 . fC " ta ^ es u P on nis enemy with his own hands , merely to gratifie his own paffion, which'the Apoftle had a little before interdicted. For if we include in that negative precept, that Revenge that is taken by the Magiftrate for the publick good, what can -be more abfurd than after he had charged the Romans, not at all to execute capital punifhments, to have immediately fubjoyned, that to this very end God had ordained the higher powers, that they in his Head , fhould execute even Capital Judgments upon Malefactors ? for lb the power of the Sword muff, needs figntfie, if any thing. , . „ A fifth Objection is by fome brought out of the 2 Cor. 10. 3. Although we wai\ in the s Cor jo 2 A/^j we do not war according to theftejl) j for the weapons of our warfare are not carnal, but expounded, ' mighty, through God, to the pulling down offtrong holds. Where by the way, we mult un- v derftand that by carnal weapons , are meant Riches , Glory, Power, Eloquence, and fuch like (as Chryfoftom expounds that place) in which fence, this place is quoted to little purpofe, for both the words preceding and fubfequent do plainly fhew, that St. Paul by the word Flefh underftood his mean appearance as to the outward, which rendred him to thofe who looked no further contemptible. Whereunto St. Paul oppofeth his own wea- pons, that is, the power committed to him 3s an Apoftle, to compel fuch as were obfti- nate and refractory, which power he exercifed on Elymas the Sorcerer, on the inceftuous Corinthians, and on Hymenaus and Alexander the Copperfmitb. This power he denyes to be carnal, tRat is, weak, nay rather heafferts it to be moftftrongandforceable.Now what doth this belong to the rights of War or Capital punifhments ? yea rather on the contrary, becaufe the Church of Chrift was at that time utterly deftitute of all manner of tutelage or protection from the publick powers : therefore did God for a while fupply this defect by that prodigious power which began to ceafe, almoft as foon as the Church had gained the protection of Chriftian Emperors •, even as Manna then began to ceafe, fo foon as he had brought his people out of the barren Wildernefs into a fruitful Country. % Obieft. 6. ^' ie ^ xt ^ P* ace they produce, is out of £/>fc. 6. 12. Put ye on the whole Armour of God y out of Eph. 6. that ye may be able to fland againfi the wiles of the Devil ; for ye wreftle not againft flefli and 1 2. expound- blood (only) as the Hebrews underftand it, but againfi Principalities, &c. In which place «<*• the Apoftle difcourfeth only of that fpiritual warfare, which Chriftians, as Chriftians, have with their fpiritual enemies, and not that which Chriftians as men may make againft men upon juft grounds. Objeft. 7. Th^feventh place objected againft the lawfulnefs of war, is that of St. James, Front from James whence are Wars and Fightings among you? Come they not hence, even from your Lufls that V '• war in your member f ? Te lufi and have not, ye kill and defire to have, and cannot obtain; ye fight and war, yet ye have not becaufaye ask^not ; ye ask. and receive not, becaufe ye ask^ amifs, that ye may confume it upon your lufls. But in thefe words there is nothing univerfal, foe St. fames here condemns only thofe unnatural wars which the difperfed Jews then had a. mongthemfelves, whereby tfeey were miferably fhattered and torn in pieces, (fome part whereof Chap, i i. Objections againft tbelawfulnejs oflVara?ifwered, 25 whereof is recorded by Jofephus) which arofe from no other caufes but what were unjuft : the like we may fee among Chriftians in thefe days, though not without remorfe -, where- of Tibullus, This is the vice of Gold, no Wars were then, When nought at Feafts but Beechen Bowls were fecn. ... ' ' ■ " < - < - ■ So we often read in Strabo, how innocently they lived who contented themfelves witlj a Angle and fimple diet'-, wherewith agrees that of Lncan, ■0 Luxury, of things the waft, That not contented art with mean repafi ', t .J Ambitious hunger, which for to appeafe, Both Lands and Seas are fought for rarities: Learn with how little Life fuftain'd may be, And what by Nature's due. « . Whereunto we may add that of Plutarch , 7here is no War among men, hut what arijeth inStoiur. ton.-. fromfome vice ; fome through inordinate luft, others from covet oufnefs, fame through ambition, tradiftioaibut. and immoderate love of Glory. Jufiin commending the manners of the Scythians faith, They j u * d , . affect not Gold and Silver as other Nations do : And prefently after he adds, This Contentati- this'. on of theirs begat in them fo much juftice, that they coveted nothing that was not their own ; for there only are riches inordinately fought after, where they fervefor inordinate ufes. Memorable is that laying of Taxiles the Scythian to Alexander , What necejfity is there that we, O Alex- zndev,[hould make War one upon another feeing that thou comeft not to abridge us of our Water,or of our neceffary fuftenance ; in the defence of which things only, men endued with reafon make War ? Much to the fame purpofe was that of Diogenes, Thieves and Incendiaries to War, are never found among fuch as are contented with homely fare. For as Porphyry obferves, That which is eafilygot and at fmall charge, much conduceth to the perpetual Piety, even of all. Where- J^^j t " as Tyrants and fuch as devafl Kingdoms, do not raife Wars either Foreign or Civil, to feed courfely nitron. ' e'dv. on Herbs,. Roots, or Apples ; but to pamper themfelves with Flefti, Fowl, and fuch like delicious Jov.l. 2. Fare. Therefore Chryfofiom fpeaking of fuch as were rich and opulent, faith, Bo.mtSe- Ad Pa[r( ^ ^ ditions, Wars, Combats, 'Bondage, Slavery, Captivity, Murthers, and innumerable Other fuch fa[ m% like mifchiefs and inconveniences commonly arife from thefe men ? I may conclude thefe and many other fuch wife fayings of the belt men, with that one of Polybius , Animus neceffari- is contentus alio adfapiendum mag ijiro non eget ; That mind which can be contented with neceffa- ries only, needs no other Tutor to learn wifdom. Our with therefore- (hall be the lame with Juftins, who having commended the Scythians for their temperance, wiflieththe like moderation among all Nations : Then might we hope that that Prophecy of Efay would, foon be fulfilled, that our Swords lhould be turned into Coulters , and our Spears into Pruning-hoOks-, Nation would not then rife againft Nation , neither lhould we learn war. any more. For what is it that fills the world fo full of blood and rapine, that the Sword devours more than thofe that dye by natural deaths, but only our exorbitant Lufts, whereby we are violently hurried to things unjuft and difhoneft. Now that which Chrilt fbmetimes faid to St. Peter, He that takes the Sword (liall perifti by the Sword, not properly be-, longing unto War in its vulgar acception, but to private quarrels (for Chrift himfelf gives this as a fufficiefit reafon, why we lhould negleft our own defence, rather than ftudy revenge -, becaufe his Kingdom was not of this world, Jo. 13. 36.) fhall be more fully handled in its proper place. . When there arifeth any doubt concerning the fence of things written, we have two ix. main helps, namely, the common practice of that Age , and the authority of the molt what the ?&■ prudent men, both which are of fingular ufe for the right underftanding of the holy Scri- mitive. Chri^ ptures : According to that ancient rule, SanLlorum praxis, optimum eft praceptorum interpres- t "' an s. held as The practice of the Saints, is the beft interpreter of our Saviours precepts. For it is not proba- ble, that the Apoftles did commit all things fo clearly to Writing, that might or did con- cern the Oeconomy of the Church -, but that fome thing's were delivered by words only : Neither is it probable, that all the Churches by them eftablilhed, lhould quickly forget what was fo delivered unto them and praftifed by them. Now they that difpute againft Concerning the lawfulnefs of War, do ufually juftifie themfelves by the opinions of fome of the anci- Fathers three ent Chriftians, againft whom I have thefe things to urge: Firft, That from their fayings, things okerr= nothing can be concluded more than that it was the opinion of fome private men, but not aWe> the general Dodrine of the Chnrch in that Age ; efpecially if it be granted, that thofe °^" v ' Ir Fathers aftefted to be fingular, and to introduce fomewhat that was more fublime, than What was generally approved of by thofe Churches ; yea and (which in thofe times was E ordinary) 7i6 Objections out of the Fathers anfwered. BOOK I. elm. Alex. ordinary) to cloath their own Fancies with that generous Notion of an ApoftolicalTra- Sirovs. I. 7. j it ^ on ^ as ma y k e o^ferved by Origen, and Tertullian : ( fo Clemens Alexandrinus faith, That it was delivered by a certain fecret Tradition from the Apoftles, That it was not lawfulforChriftians to go to Law, either before the Saints, or before the Gentiles 1 origin. or for a perfect Chriftian to fwear : ) yet are not thefe Fathers conftant to what they fay^ rtrtullian. for Origen brings in Bees, as a Document , That it was lawful for Chriftians to make a jufi- and well ordered War y as often as neceffity required. And the very fame 7 'ertullian, who in another place feerns to disapprove of Capital puntfhments, yet faith, None can deny > DeAxima. but that it much conduceth to the publick^ fafety , that Malefactors {\wuld be puniflied. And again , Who, faith be,would not rather preftrr humane Juftice^thars fee a Righteous manoppreft ) wloich as the Apoftle tcftifies, is not begirt with the Sword in vain, and which even in perfecuting is Religious. So alfo to the Proconiul Scapula, We f{aith he) do not terrific others, neither are we terrified by others. But as we would have all men faved by admanifliing them not tofigLe againfi God :■ So thou- may ft both faithfully perform the duty that belongs to thy jurifdillion > and yet not be unmindful of that, of humanity , efpeciaily confidering that ye alfo are rnidt r the power of the fword. And as concerning the lawfulnefs of War he fpeaks doubtfully 5.' TxCtron.Mili'- ^ or in his book concerning Idolatry, he faith, It is much queftioned whether Chriftians mav Hs. take arms, er whether Souldiers may bs admitted to Chriftianity : and in that place he feen s- to favour Che Negative -, but in another place, after he had a while difputed againft the lawfulness, of War, he at length diftinguimeth between him that entred into Arrrs before he was baptized, and him that lifted himfelf after Baptifm. For faith he, Their condition is plainly otherwife, who being ftrft Souldiers were afterwards converted to thefaith^ as theirs whom St. John admitted to his Baptifm ; or that faithful Centurions whom Chrift ap- proved of, and whom St. Peter inftrulted : Provided that having once embraced the Chriftian Faith, and being fealed upthtreuntoby Baptifm, they either renounce the War prefently, as fome have done ; or take fpecial care that they do nothing therein that may offend God. Whereby it is evident, That fome Chriftians did, or at kaft might continue in Arms after Baptilm^ which certainly would not have been permitted, had Warfare been by Chrift abfolutely forbidden- ^ no more than Southfayers, Magicians, and the profeflbr * of fuch like prohibi- ted Arts, were permitted after Baptifin to perfift in their Diabolical Profeffions. Ter- tullian tells us,That they who prof effed fuch Arts as the Chriftian Dtfcipline did not allow of, were ix litl. not to- be admitted into the Church of Chrift. And St. Aug. inftances, amongft others, in Defide&tf. common Whores,. Bauds, and Stage Platers, none whereof until they had removed their profef- ISfer ' $ ons wm ^ he admit unto the Sacrament. Of the fame opinion alfo was St. Cyprian. War declined Secondly, We may obferve, that in the Primitive times, Chriftians did either difap- not as hi it prove or avoid the Wars, not becaufe it was in it felf unlawful, but in refped offorae feif unlawful, circumftances incident. to thofe times , which would not admit of the exercife of War Afts're S uc- without the doing of fome ads which were repugnant to Chriftian Religion.^Thus Ter- nanttoUiri- tuUian forbids a Chriftian to go to War, not that it was unlawful, but becaufe the Difci- flianity. pline of War did fometimes enjoyn fuch ads, as the Difcipline of Chrift could not; Asthe/«w allow of: In the Epiftle of Dolobella to the Ephejians,as it is recorded by Jofephus, the Jews defiretobe exempted from all military expeditions, not (Imply as being unlawful, but that being mixt with ftrangers , they could not fufficiently perform the Rites and Ceremonies of their own Law, nor would their Religion permit them to make long- marches, or to perform ads of Hoftility on the Sabbath day : and the fame Jofephus tells us that for thefe'very reafons, the Jews got leave of L. Lentulus to be difcharged the Army : The lame Hiftorian alfo relates, that the Jews being banifhed Rome, fome betook them. felyestothe Wars, others were punilhed for refilling to take Arms in reverence to their Country Laws, and for the reafons above mentioned ; whereunto they fometimes added a third, namely, Becaufe they thought it a fin to make War againft their own Counrty-men , efpe~ Jof. Ant. l.\i. cially being pirfecuted for obferving their own Country Laws. But being freed from thefe Ub.de idol, inconveniences they refufed not to take Arms, and that under foreign Kings, butftilJ under condition, that they might enjoy their own Laws, and worfliip God after the manner of their Fore-fathers. Unto thefe dangers that the Wars expofed them unto may be added , that which Tertuthan objeds, That they were fometimes commanded to fwear by the Gods l)icoronMi- of the Gentiles, Mars, Jupiter , &c. Which unto Chriftians was a very great fcan>- iitis. daf, as well as to the Jews. Whereupon the fame Tertullian, in another place thus Apo- logizeth for them, Shall, faith he, a Chriftian watch to guard the Temples of thofe gods whom he hath renonunced ? Shall hefup there where he is forbidden to eat ? Shall he defend thofe fpirits. by night which he exorcifeth by day ? And a little after , How many other great offences maybe feen in military duties, which cannot be otherwife interpreted, but as breaches of our Chriftian Laws. i.Utp. Lattantiiti * alfo denies that a juft man ( and fuch he would have a Chriftian to be ) ought 58. to make War ; but denies alfo that he ihobld navigate the Seas. How many of theanci.- ?I#.$.*.»8t ent Fathers do dilfwadeChriftians from Second Marriage j?yet no wife man will from thence condude,that any of thele are in themfelves unlawful : for though they are all of them ex- cellent Ornaments to our Chriftian profeflion, and very acceptable to God ; yet are they not impofedonus by the necefllty of any Law. (Nay farther, admit that there were fome places of Scripture which did feemingly reftrain the political ufe of the Sword, yet fin.ee it hath been accounted by all good men a means fufficientfor the avoiding of pergon- al inconveniences, ( as mutilation, &c) to admit of any fenfe rather than the literal, as of the plucking out of the right eye, the cutting off, of the right hand, &c. Much rather Ihould thofe places of Scripture, that are urged againft the power of the Sword, admit of any fenfe :, than that it Ihould bethought, that Chriftianity ihould deftroy that, which is the chiefeft inftrument ofjuftice, theonly curb to vice, and one of the main pillars of humane Society. For if it be granted, that the World cannot fublift without Government, nor any Government without Laws, and that the Laws themfelves lignifie but little without Coercion : then it is as certain that that Religion cannot be good, that holds forth fuch doftrine whofe confequence will deftroy all Government ; and therefore fuch a dodlrine is to be fuppreft with all care and prudence,as the greateft pelt and nufance toaCommonwealth:and thofe very men that did firft intend by thisdochineto exaudorate Princesand Magiftrates,would(it is to be feared)be the very firft, that would take up Arms to abett and eftablilh their own wild and exorbitant fancies : And thofe Princes who fuffer themfelves to be deluded by them, will quickly find the confequences to be inconfiftent with Government-, when being difarmed,they fhall be difabled to defend themfelves againlt their Neighbours , to fupprefs mutinies and feditions at home, or to give that protection unto their own fubjects againft rapine and violence, which in honour and Confciencc is due unto them. But let thefe fuffice to diflblve thofe objections that are dually brought out of holy Writ againft the lawfulnefs of War ; and now let us fee what may be brought- to confirm our opinion, namely, That all War is not unlawful. And here in the firft place, we may alledge many Authors and thofe more antient , who Argument? hold, ThatChriftians may lawfuly put to death incorrigible Malefactors, and confe- proving tome quently may make a juft War -, of which Clemens Alexandrine fhall lead the van, AChrifii- VVars lawfu l an, faith he, being called to be aSupream Magifirate, as was Mofes , is to be unto his Sub- jects a living Law, encouraging the jufi with rewards, and restraining the unjufi by fever e pu- nishments. And in another place defcribing thehabitofa Chriftian, he laith, That it invitisptdi- would becon)ehim to be unlhod unlefs he be aSouldier. In thofe Conftitutions, that are b " s - fathered upon Clemens Romanus, we read , That every putting of men to death is not un- lawful : but that only which deftroy s an innocent per f on, yetfo notwhhfi anding thai the Magifirate alone is to determin who are innocent. But fetting afide thefe private authorities, let us pro- ceed to thofe that are publick, that is, of the Church, which in this cafe is of greateft moment. And this I affirm, That no man was ever rejected from Baptifm, or Excom- municated the Church becaufe he was a Souldier ^ which certainly oughctohave been done, had War been in confiftent with the precepts Of the new Law.The fame Author ell'e- C onft. I. §< where fets down, who anciently were to be admitted to,andwhO were to be rejected from .t. 32.^ Baptifm 1 , Let the Souldier > faith he , that defires Baptifm.be inftr titled, to abft din from wrong doing, and from oppreffwn, and to content himfelf with his pay : If he be willing to obey, let him be admitted. Tertullian in his Apology, fpeaking in the perfon of Chriitians, faith, Navigamus & nos, vobifcum, & militsmus ; We both fail and fight together with you in the fame Fleet. A little before he had laid, We, though fir angers, do notwithftanding f apply all your places and Offices, we fill your Cities, Ifl.mds, C.ifiles, Towns, Councils, yea, and your very Camps. And in the fame book, he tells the Emperour M. AUrelitts, That the prayers of his Chriftian Souldiers had procured from God, Rain in the time of Drought. And in his book, Be Corona, he commends the Gallantry and Magnanimity of that Souldier, before all his brethren, that had thrown away the Garland when he had won it ; inti- mating unto the laid Emperor, that he had many other fuch Chriitian Souldiers. Wbere- B i unto' . Sfauianus. Paracjdes Strm. 7. 28 Arguments frotn the Fathers for theUttfulnefs.offomeWar. BOOK I. unto we may add, That fomeSouIdicrs there were that endured Torments even to death for the Chriftian Faith } and were therefore worthily admitted by the Church to the fame honour with other Martyrs, amongft whom he makes mention of three of Pauls Compani- ons, one Cercalis under Deci&n , Maxims under the Emperor Valerian, 5oSouldiers un- der Aurclian , Killer , Maurus, and Valentinus with diverfe others. Cyprian concerning Laurentims arid Tgnatiits, both African Souldiers, writes thus, They were once Souldiers \hting under fecutar Princes, but they were alfo true SouUiers of God when by the confeffion of their faith in Clrrift, they vanquifued the Devil, and by their invincible patience under the Crofs were ennobled with the Crown of Martyrdom. Whereby it is plain what efteem the Primitive Chriftians had of Scuidiers, even before any of their Emperors under whom they ferved, became Chriftians. And if the Chriftians of thofe times did exprefs an uu- wiiitngnefs to be fpedtr.tors at the execution of Capital punifhments i itisnotto be won- e'red at, considering that thole punifhments were but too frequently executed upon their fellow Chriftians : efpecially if we add thereunto fome grains ofallowance, for that the Roman Laws were far more fevere and cruel, than would confift with Chriftian Lenity : As fuffkiently appears by that oniSilanian Decree of the Senate •, the Rigor whereof was fomewhat mitigated by the Emperor Adrian, as Spartiamu records it. Amongft which fevere Laws we may place that which forbad the Teftimony of any fervant to be taken unlefs he were tortured. But after that Conftantine the Great began not only to ap- prove of,but to advance Chriftianity, even then alfo were Capital punifhments frequently executed. For even Conftantine himfelf ( amongft many others ) enacted this Law of fbwingupof Paracidesinafack, which is yet extant in the Code, under the Title of Mur- thercrsof their own Parents or Children •, though he was otherwife foremifs in pun i fil- ing, that by fevcral Hiftorians, it was imputed unto him as a Blemifh. Yet Zonaras gives this Ttftimony of him, That he was very merciful to fuch as reformed their evil lives: for he would often fay, Abfcindendum e(l membrum agrotans acptttridum, ne fana contagio cw- rumpat, non id, quod ant fanatum jam fit, ant fane feat ; That member that if putrid and in- curable is to be cut off, left the found fliould be infected, but not that which is etther healed, or healing. Befides Conftantine had a multitude of Chriftians in his Army, and ( as Hiftori- ans tell us) hadthenameof Chrift embroydered on his Banners, andfrom him itwas that the Military Oath was changed into that form extant in Vtgetius, namely , By God, by Chrift, and the Holy G ho ft, and by the Majefty of the Emperor, who according to Gods Ordinance is to be beloved, and reverenced ly all mankind. Neither was there at that time any one Bilhop(that we read of among fo many that were great fufFerers for Religion} that did ever reprove Conftantine for putting Malefactors to death, or for making of War ; or that did upon the account of Religion, deterr Souldiers from their Military duties, though many of them were fevere Difciplinarians, fparing neither Prince nor people, that were defective in their duties. Such was in the Reign of Theodoftus the Emperor • St. Ambrofe, who thus declares his opinion concerning War , Non Militare Delitlum eft, fed propter pr&dam Militare, Simply to go tn War: is no fin, but to fight for fpoil and plunder is wicked. So likewife in his Offices , That force whereby either our Country is defended from our enemies by War, or the weakjtnd innocent defended at home, or our Affociates from Pi- rats and Robbers, isperftci Juftice. This Argument is of fo great force , that I fhall need no other. And yet I am not ignorant that fometimes Bifhops and other good Chriftians have often by their Intercefficn turned Capital punifhments,into Pecuniary Mulcts, or fome leffer punifhments not reaching to life: Officium facerdotis eft intervenire proreis ; It is the duty of a Prieft to interceed for the guilty, faith Aug. And there is a right introdu- ced by Cuftom, That they that flee to the Altar for Sanctuary, are not to be delivered up until faith be given for the faving of their lives; and that fuch as were for mifde- meanors delivered to Prifon , fhouldat Eafter be freely releafed ; but he that throughly perpends thefeand fuch like Cuftoms, fhall find, That they proceed rather from minds full fraught with Chriftian Charity, which watcheth all opportunities and occafions to do *god, than from minds quarrelling at the equity of Capital punifhments." whence it was that theprivilcdges of thofe times and places, yea and the very interceffions themfclves were moderated with fome exceptions, as we may learn by Cafftodore. But here fome will object againftus the 12th. Canon of the Council of Nice, whichjbunds to this fence f If any being by the grace of Gcd called, ftiall firft exprefs their faith by deferting the War, and afteryvards returning to their vomit fliall by money or favor, feckjo be re-admitted into the War ; thefc after the three years allowed them to hear the word, ftiall remain among the Penitentials fur ten years. But in this cafe aftriil obfervation mi: ft be taken, how fuch perfons ftand af- fcUcd, r.n 4 what fruits cf Repentance they bring forth ; for whofoever among them ftiall fhevt forth their ftneere convcrfwn by fear , by tears, by Patience and good works without dijftmu- lotion, thefe fulfilling their three years of hearing fhall at length communicate in prayers , and Afterwards it fliall be lawful for the Biftiop to deal more tenderly with them. But if any of them Lih. 7 i.e. ac. 12 Can. of Niccn Coun- cil. Chap, i i. Argum.from the 'Primitive Chriftians for the laivfidnefs of War. 1$? them fliallbear it but indifferently-, and fliall tiling that their very entrance into the Church is Ef- ficient t thefe fliall fulfil their whole time. Whereunto I anfwer, that by the time of 1 3 years Penance we may collect, That the fin was neither fmall nor dubious •, for fo great a pu- nifhment muft needs be inflicted for fome Crimes that were both to God abominable, and to all good men fcand.ilous, which without queftionwas Idolatry. For the words preceeding in the elventh Canon do manifeftly referr us to the times of Lkinius, which' gives a very great light to the underftanding of the fenfe of this Canon. This Lkinius as Eufebim relates, in his War againft Conftantine , firlt turned all Chriftians out of their Hift. Eccl.l. houfes, and made fale of their goods ; then drew out all the Chriftian Souldiers and Offi- 10. c. 8. cers both out of his Armies and Cities from the reft : and then commanded, That unlefs they would of their own accord facrifice to Devils, they flwuld all of them be cajliicred from their Offices,. ( Which fad of his was afterwards imitated by Julian, ) whereupon many renounced their commands, and among them, one ntlrkiu* ; fo did 11 04. more in ^wmw',* under Diode /w», concerning whom, there is honourable mention made in our Manyrologies : and fo in tAigypt did Menna, and Hefychius. So alfo in the times of Lkinius, did many re- nounce their Commands, amongft whom was Arfacius, mentioned among the Con- feflbrs, and one Auxemiw afterwards made Bifhop of Mopfueftia. Now they , that out of tendernefs of Confcience had formerly renounced their Commands, had no pof. fible means to be re-admitted under Lkinius, but by a publick Abjuration of the Chriftian Faith : wherefore as they that were fo admitted, committed much the greater fin ( being againft knowledge and Confcience ) fo they deferved a much greater punifhmenr, than thofe mentioned in the foregoing words of the Canon , namely, that without • any. danger either of life or goods had renounced their Chriftianity. But to inter- pret this Canon fo generally, as if it comprehended all manner of going to War , is infinitely againft reafon. For the fame Hiftorian tcftifies, That many of them that under Lkinius had laid down their Arms, and whilft Lkinius Reigned, did never re- aflume them, becaufe thev would not abjure their faith in Chrift, being by Conftan- tine left to their own choice, were upon their requeft, re-admitted. There are like- wile, that urge againft us the Epiftle of Pope Leo, where it is faid to be againft the Ecclefiafiical Canons to return into a Secular War, after the Aft of Repentance. But here we muft underftand , That from Penitentiaries as well as from Priefts and Monks , there was required a more ftridt, and auftere courfe of life, than what was required from other Chriftians : That they might be asgreat examples to others, of Contrition and Humiliation ; as they had been before, of prevarication. For as Leo well obferves , Jllkitorum veniampoftulantem, oportet etiam multis licitis abftinere ; It is but jufi that he that begs pardon for his unlawful ails , flwuld abfiain from fome things otherwife lawful. So in an Epiftle wrote by fome Bilhops to King Lewis we read , Quilibet tanto a fe licita de- bet abfeindere, quanta fe meminit & illkita perpetrajfe ; Every man ought fofarto abridge him- felf of things lawful , by hew much he rcmembreth that he hath committed fome things un- lawful. So in thofe ancient Cuftoms of the Church which to gain the greater reve- rence are commended unto us under the name of the Apoftles Canons, It is decreed that no Bifhop , Prieft or Deacon flwuld addill himfelf to the War, fo as to retain the dignity of both Funllions, both Civil and Sacerdotal ; But leaving unto Casfar the things that ' are Cxfars, they jliould give unto God, the things that are Gods. Whereby it appears that they who were not thought worthy to be admitted to Ecclefiaftical dignities, were not in- terdi&ed thofe that were Military : with this alfo, That none who after Baptifm had obtained any Office Civil or Military, could be admitted into the Clergy. As may alfo be colle&ed from the feveral Epiftles of Syncius, Innocentius, and from the Toktan Council. For Clergy men were not chofen out of any fort of Chriftians, but out of fuch as were likely to be exemplary unto others in aufterity of life and manners. Be- fides upon Military Officers, as alfo upon fome Civil Magiftrates, there lies a per- petual obligation : But fuch as put themfelves into Holy Orders, ought not to be en- tangled with any other care, nor diverted by any other daily Labour. For which caufe, it was provided by the 6th Canon, That no Biflwp, Trkff or Deacon fbould take upon them, any fccular imployment, nor thruft themfelves into any public^ Office. And by the 6th. Canon of the African Council, They were forbidden to be Sollicitors of can.Apoft. other mens affair's , or to defend other mens caufes. But that which gives the 6. 8. greateft reputation to our opiniou is , the judgement of the Church which we have ^ iri E P- Mr, fetdownin the third Canon of the firft Council of Aries which was held under Confktminc ■ adr ^ ot - The words found thus, Concerning thofe that cap away their Arms in the time of peace, it pleafeth the Synod, that they flwuld be deb ared from the Communion: that is, They that lay afide their Arms when there is no perfecution that threatens them, for by the word, Peace, the Primitive Chriftians underftood only a vacancy from perfecuti- on, as appears by Cyprian and others •, Noftra pad , quod cfi helium quam perfecuao ? As to the peace of the Church, What greater War can there be than perfecution ? So St. TtmL Cyprian . — . 1 30 Authorities proYmg the lawfuhiefs offome War. BOOK I. Cyprian. Cyprian, when God began to givepeace unto his Church ; That is, when he freed it from Perfecution. Next we have the example of Julians Souldiers , who were no mean proficients in the School of Chriftianity -, for they were ready to teftifie their faith in Chrift by the effufion of their blood, of whom St. Ambrose fpeaks thus , The Em- peror Julian though an Apoftate , yet had many Chriftians that fought under his Banner ; to whom when command was given to march againfi the enemy in defence of their Country t they readily obeyed: But being commanded to march againflthe Christians, then they acknow- ledged no Emperor but the King of Heaven. Such alfo were long before them the Thebnan Legion, which in the Reign of the Emperor Diode fan was converted to the Chrifti- an Faith, by Zabda the Thirtieth Biftiop ofjerufalem, which Legion did afterwards leave behind them a lingular pattern to all future Generations of Chriftian patience and con- ftancy ; whereof I mail have occafion to fpeak more at large hereafter. It (hall fuf- fice in this place to rehearfe that excellent fpeech they made to the Emperor, which doth both folidly, and fummarily reprefent unto us the Duty of a Chriftian Souldi- er : Againfi any Foreign Power we freely offer our hands, which yet we dare not embrew in the blood of Innocents. Our Arms which have been long prailifed in fuppr effing vice, and in vanejuifliing Foes, never yet knew how to opprefs the Righteous, or to cut the Throats of our Neighbours and fellow-Citizens. When fir fi we engaged in War we remember, it was to pro. teQ and not to defiroy them : we have hitherto fougln for Juftice, for Piety, for the defence of Innocence : For thefe priz.es we have /lighted all dangers, we have fought for the defence of our faith ; which fwuld we have broke with God, How canfi thou, O Emperor , expect that we (hould keep with thee ? Bafil alfo gives this Teftimony of the Primitive Chrifti- ans, That their Ancefiors never accounted that execution that was done in War as MHrthpr\ n but alwaies held them excufed, that fought for the defence of Chafttty and of Piety. &' faciendi ; That is r.ot to be granted to every private man, that may be done publickly by a Ma- giftrate, left for every petty injury men run into Tumults. And hence it is , faith King cafmd.!. 4. Theodorick^ That fo great a reverence is dueto the Law, that no man ought to revenge himfelf Var.Bp.e,. with his own hand, or by thefuggeftion of his own pajftons. For if all differences may be de- termined by plan force, wherein would a, calm peace differ from the tumults of War ? And therefore the Laws call thatForce, When any mantakes that which is his due with hit own hands-, without the determination of a Judge. Moft r 3 2 War divided into Tublick and Private. BOOK I. II. Moll certain it is. That the Licence which before Tribunals were eftablifhed publick- Tliat Tribu- jy ) was permitted, is fince much reftrained : And yet in fome places the fame Licence rededTiwar ^ remaine£n > namely, where Judgment cannot be had againft offenders. For the Law \l not unlaw- ' n prohibiting a man to take his own, unlefs it be judicially, doth tacitely imply that fuL it be in fuch a place, and at fuch a time where an ordinary courfe of Juftice may be had. . . Now Judgment ceafeth either for a while only, or for continuance : For a while, when the Judge cannot be fo long waited for without certain danger and damage. Servius upon thefe words of Virgil , Jnjicere manum pare*, The Fates have fnatcht him hence., tells us, That the Poet makes ufeof aPhrafe borrowed from the Law: for it is called Jnjecrio mams , the fnatching away of a thing, as it were by force, when without attend- iag the warrant of Authority, we fuddenly feize upon fomething that is our due, which is ufually done when the Lawsxlo for a while ceafe, And ibmetimes there is a total and continued cefTation of Judgment,and that either by Right or in Fad. By Right, as in pla- ces that are defert and unoccupied, on the Seas and in Iflands not inhabited, and in any other fuch places wherein are not civil Societies. In Fact, as when Subjeds do noc regard the Sentence of the Judge, or the Judge publickly refufes to examine the cafe. Now what we faid before, namely, that fince publick Judicatories were eftablifhed, all Private Wars are not repugnant to the Law of Nature •, is clearly evinced by the Law Exod. 22. 2. given to the Jews, where God gives this charge by Mofes , If aThief be found breaking up ( /'. e . by night) and bcfmitten that he dye, there Jhall be no blood ftedfor him ; but if the Sun be rifen upon him, there pall be blood pea for him. Certainly rhis Law.fo accurately diftfn- guifhingof the time when the offence was committed, feems not only to induce an im- punity, but ferves to explain even the Law of Natnre ; being not fo much grounded on any one particular Divine Precept, as indeed upon common equity, which guided other Solon's Jjw. Nations alio to do- the like. The old Attick Law was this. If any man fhaU fteal-in the day time , to above the value of fifty Drachmaes, let him be tryed by eleven men : But if a man mail fteal to the fmalleft value in the night, he may lawfully be killed. This ancient Law of Solon doubtlefs occafioned that of the twelve Tables among the Romans*. Vidt infra St nox fur turn faxit,ft fur em aliquis occiftt, jure ctfus efto ; If any man pall kill a Thief rob- So. 2. ch. 12. bing in the night, he pall be held innocent. So by the Laws of all Nations that as yet we have known r He that by Arms /hail defend himfelf againft him that attempts to take away his life, is accounted gniltlefs - 7 which fo plain a content doth evidently afTureus, that there is nothing in it repugnant to the Law of Nature. jiy_ But whether this private war be juftifiable by the more perfed Law of the Gofpel, is Neither' is it fomewhat more doubtful: 1 dare not but grant that Almighty God, who hath a much- repugnant to greater power over lives than we have, might have impofed upon us fuch an unlimited the Evangelf- patience, that even privately, in a cafe of imminent danger, we ought rather to be kir- caJ Law. ^ t ^ n t o kill. But whether it be his pleafure thus ftridly to tye us up , is the thing in queftion. There are two places of Scripture that feem to favour the Affirmative, which we quoted above when we handled the general queftion : The former was that in the Mar - $• 19- fifth of Mat. v. i q. Reftft not him that doth thee an injury : And the latter that in the twelfth to the Rom. v. 19. Dearly Beloved, Avenge not your [elves; which the Latin Tranflation- renders, Defend not your fives. But a third may be added , namely that of Chrift to Wat. 26. 52. p e ter ^ p Ht U p t hy Sword into the Sheath, for they that take the Sword (liall perijli by the Swordl Some there are likewife that urge the example of Chrift himfelf, who dyed for his ene- mies, Rom. 5. %, 10. Neither are there wanting among the Ancients, fome, who although they do not difallow of publick War , yet believed that all private, even that which is defenfive was forbidden. Some places out of St. Ambrose for war we alledged above, but many more and much clearer, and more generally known, may be produced out of St. jn Luc. 10. Augufline: But yet the fame Ambrofe in another place faith, That haply therefore Chrift faid unto Peter, when he Jhewed him two Swords, It is enough .* As if till the Gofpel came it had been 'lawful, that fo there might be, as in the Law the dvffrwe of Equity, fo in the Gofpel the doilrins ve off.i.$. e.3. of Verity. And in another place he tells us : That a Chriftiao though afTaulted by Rob- bers, ought not to ftnke again •, Ne dum falutem defendit, pietatem contaminet : Left whilft Jib. 1. de lib. he feeks to preferve his own fafety, he fin againft piety. And St. Auguftin himfelf fpeaking Arb. 15. Of Thieves and Robbers, faith, Legem quidem non reprehendo, qua tales permittit interfci, x fed quomodo iftos qui inteifcistnt, defetidam, non invenio. The Law that adjudgeth thefe men ta jf'bl 1 ^' '" ^ath, 1 difallow not ; bat how to jujhfie the Executioners, J find not. And in another place, Cip.i->.& 55. But as to them that give advice, that fome men are to be put to death, left others by them jltoulU be dejhoyed, I cannot fubferibe, unlefs he that kills him be either a Soldier or a publick Execu- tioner, who doth itvot by his own, but by publick. Authority. And of the fame opinion was Baft/, as appears in his fecond Epiftle to Amphilochius, whereunto we may add the laft C 1?. 7. 2. Canon of the Council of Orleans, cited by Gratian. But the oppofite opinion, as it is ' more Catholick, fo it feems to be more agreeable to truth, namely , That Chriftians are no? Chap. iii. Ohiettions out of the N. T. againfi all the Scriptures he fulfilled, that thus it-wufibc? Whence we may conclude, That St. Peter was at that time tranf- F ported :> 4 Objections anfivercd. BOOK I. ported with an eager defne of Revenge, (being very hot and zealous") and not of De- fence only : WhcEeunto we may add, That Peter did make ufe of his Sword againft thefe th, r. came armed agajaft Chrift with pubtick Authority. Now whether any cafe wiH juftific our refiftance.of thole that are thus armed, is a peculiar queftion hereafter to be particularly handled: And whereas Chrift adds thefe words, They that take the Sword by tie Sword \ it was. either Proverbially fpoken, to (hew that blood requires blood, and conllquently that the ufe of Arms was never without peril •, or rather as "Patience to be Origen, Tkeophylali,, and others interpret the place, it fhews that we fhould not be too preferred be- rajh in taking the Sword of Vengeance out of Gods hands, who will certainly in his own fore Revenge, time repay blood with blood. And in this fence it is exprefly faid, Apoc. 13. 10. He that leadeth img Captivity, fhall go into Captivity ; He that kjlleth with the Sword, fl:all be kil- led by the Sword; Here is the patience and faith of the Saints; very confonant whereunto IS that of Tcrtullian , 'So fit is God to be trufxed with thy patience ; that if thou jhalt commit thy Sufferings an to. him, he will be thine Avenger : If thy grief and pain, he will be thy Phyfi* cian ; Jf thou truft him with thy Death, he will raife thee up a^ain : O how great a power hath patience, that is able to make Cod himfelf to become our Debtor ! Betides, In thefe words of Chrift, there lccms to be coucht a Prophecy of thofe punifhments, which God would take of the blood thirfty jews by the Sword of the Romans. But as to the example of Chrifts dying for his enemies, it may be thus anfwered : Though all Chrifts actions upon Earth were lull of ycrtue and goodnefs, and fuch as may be (fo far forth as humane frailty will permit) laudably imitated by us, and that cannot want their reward ; yet were they noc ail fuch as were done, either in obedience to any Law, or being done, are obliging, as a Law unto us. For that Chrift dyed for the wicked, and for his enemies, was not by the Command of any Law , but by a fpecial agreement and Covenant with the Father, who had promifed that for his fo doing, He would not only exalt him in glory, far above all Principalities and Powers in Heaven or Earth; but that he would build hirnalfo a Church.au holy Seed, that fhould endure for ever, Efay 53. 10. But this fact of Chrift was other- wife fmgular, and not to be parallel'd, as St. Paul teftifies, /Row. 5,7. And Chrift indeed bids us to expofe our lives to peril, yet not for every man, but only for the Brethren, that is, for thofe that profels the fame Faith with our felves, 1 Jo. 3. 16. The objecti- And as to thofe Sentences that are quoted out of the Fathers, they were partly good onsoucofthe Fatherly Counfels, and Exhortations to an holy life, tending'to perfection rather than fwered! an anv ftrict precepts to oblige us; and partly their own private opinions, rather than the 4 j. doctrine of the whole Church : For in thofe ancient Canons called the A.poftles, He wot to have been excommunicated, that in a Fray had (lain his Adverfary at the fir(r blow for his too much heat or rajhnefi. And St. Augufiin himielf whom we before quoted in the de- fence of the contrary opinion, feems notwithstanding to approve of this in his 84th Chriflians qneftion upon Exodus: So alfodoth St. Ambrofe, O Lord, faith he, Why dojl thou command maj bear me to buy a Sword, if thou forbiddeff me to ftrikg ? Why dofl thou bid me to have one, if having Arms for De- x > J n iay net ufe it i Vnltfs perhaps thou wouldfl have us to be armed for defence, but not for fence, nor for / ' jy Or pullick Wars Pome are folemn according to the Law of Nations, and fome are Solemn War kk f°l emn ' That which 1 here call folemn, is ufually and for the molt part called jnft, what it is. in the fame fence as a Teftamcnt is being oppofed to a. Codicil; or as a folemn Marriage between fuch as are free, compared to a Clandeftine between fuch as were bond: Not that it was not lawful to bequeath Goods by a Codicil, or for a Servant to have his mar- ried woman with him in the fame houfc-, (for even among Freemen there are fome mar- VtulSint. 1.2. lieges not juft, and fome children not jnft, T&Pauhu the Lawyer notes, and fome liberty fer'tuiz' nor i 1 '^' as Se " eca obferves: ) But that a folemn Teftamcnt and a folemn Marriage, Jn/iam de a- ' iarn DV lne Civil Law fome Rights and Effets peculiar tothemfelves, which others have duit. not:, which is very ufefultobe obferved : For that many mifunderftanding the word jiifr, SK.devit.be- condemn all wars as unrighteous and unlawful, that are not folemn. Now that a war at. £.24. suet. }, e foi emn according to theLiw of Nations , two things are requiiite : Firft, That it be ' 4 °' on both lides made by the Authority of thofe who in their refpective Cities have the So- vereign power : And next, That it be waged with fuch Rites and Formalities as the Law of Nations requires, whereof we fhall difcourle in its proper place. And becaufe thefe are joyntly rcquifite, therefore the ore without the other is not fufficicnt : That pub- lefs Solemn, lick war which we call lefs folemn, may be both defective in thefe rites, and alio be made r.gainft private men, and that by the Authory of any Magistrate. And truly if we cqnfider the thing it fclf without regard to the Civil Law, every Magiftrate as he is en- trufted v> itli the peoples fefety, fo (in cafe any violence be offered) is he cntrufted with the cxercile of that power and jni ifdietion, and confequently hath a power to make war. But becaufe by war the whole City is endangered, therefore it is provided by the Laws of almoft all Nations,That no war be made but by the Authority of him who hath the th kgibus nit. ftpretne power in that City; Such a Law we find extant in PUio, and by the Roman Laws Chap. iii. Of a Solemn War. 3 5 - .,— ■'. — ■ ■ - — — ■ " ■ — — — t-**m Laws, whofoever fhould presume to make War, lift Soldiers, or Mutter an Army, with- He tl-at lills out fpecial warrant from the Prince, was held guilty of Treafon: Or as the Cornelian », „ " ' _ *. _. , , , _ ,. _ ., ' r ... . u . , . . Musters a r •iAr- Law, inftituted by L.C»rnelius Sylla, faith, without warrant from the people, placing n>y ' w j t j, out the Soveraign Power in them only. There is an ancient Conftitution extant in the Code warrant from of Jufiinian, made by Valcntinianus and Valtns, which tuns thus : Let no mm prefitme to his I'rince, is raife an Army without (pedal warrant, or to make War without our kyowledg and advice. a i raltor - Pertinent whereunto is that of St. Angttftin, That Natural Order which is -heft accommodated to the preservation of humane pcacc,rccjiiires that the Coivifcl and determination ofraifin/r of War, jlwuld remain in the power of Princes. Now as all other Rules, be they never fo gc neral,muf£ admit of equity to be their Interpreter, fo muft this Law. Firft then, It cannot well be doubted, but that it is lawful for him to whom the Lieutenancy of any City is commit- ted, to reduce into obedience, by his Officers, fome few Rebels-, fo as it require not any great force to. do it, nor much endangers the City wherein he prefides. Or in cafe the danger threatning the City be very great, and fo imminent that it will not admit of fo much time as to confult the Supreme Magistrate, pure neceffity will plead ftrongly for exemption. Upon the preemption of this Right it was, that L. Pmarius Governor of Enna, aGarrifon in Sicily, being certainly informed that the Townfmen had defign- ed to revolt to the Carthaginians-, prcferved the faid Town, by putting to death the chief Confpirators. Nay even beyond thefe cafes of Neceffity, If a King do neglect to • revenge the injuries of his Subjects, Franafciu dc Victoria is fo bold as to transfer the right of making War upon the Citizens: But herein he walks by himfelf, lor by all ju- dicious Writers this opinion is rejected as dangerous. But by what event focver it happens, that the power of making war is manifeftly in V.' inferior Magistrates, whether fuch a War may be faid to be publick, Lawyers agrr/e not : Whether a For fome affirm it , and fome deny it: Surely if by publick we undcrftand no- ^ Var "-'g™ thing elfe but what is done by the right of a Magiftrate, fuch Wars are publick : And (fi^* Ma ,^ therefore he that in fuch a cafe fhail fet himfelf in oppofitton to the Magiftrate, incurs the hath not an punifhment due unto thofe who behave themfdves contumacioully againft fuch as are fet Authority over them. But if we take the word Publick in the better fence, for that which is fo. frorn t,ie Su - lemn, as without queftion it is uiually taken -, then are not fuch wars publick : For to b^'pubhek 1 "? the legitimating of fuch a War there muft go , as well the judgment of the Supreme And when ? Authority, as other Rites and Ceremonies which the Law of Nations have made necef- fary. Neither doth it at all ftagger me that even in fuch wars, the goods of fuch as make refiftance are lawful prize, and given to encourage the Soldiers -, for this doth not fo peculiarly belong to a folemn war, but that the fame may be done in any other. Be- No y i)f _* . fides, It frequently happens that in Empires of large extent, the Lieutenants of Provin- Magiftratecatf ces are impowered by their Prince to begin a War-, which if fo, then it is all one as if make a So- the Supreme Magiftrate had immediately done it .- Quid faciendi jus quis aid iat, ejus tpfe le ! 1in War > autlor cenfetur ; Look, What right any man gives to another to do , that he himfelf is reputed v y u lout R c l the Author of. But that which admits of a larger difpute is, Whether in cafe no fuch power be given, the subordinate Magiftrate by conjecturing at the will of his Prince, may make War. But this I cannot admit of, for it fufficeth not to forefee wkhat the will of the Prince would be, in cafe he were consulted withal •, but we are to coniider, what a Prince would have a Magiftrate to do without advifing with him, in cafe the matter be important, and will admit of time enough for a ferious debate, if a general Law were to be made thereupon. For though the real'on that moves a Princes will, being particu- larly infpected, may in fome particular fact ceafe ; yet the reafon univerfally taken, ceafeth not, which is, That all dangers fhould be timely prevented : which could not pof- fibly be, if every mferiour Magiftrate fhould afTume unto himfelf the Right of making War. On. Manlim was not therefore unjuftly accufed by his Lieutenants, thtt without Lh. 42, order of the people of Rome he had made war againft the Gallo-Grscians. For although there were certain Legions of the Gauls in Antiochus his Army , yet having concluded a League with Antiochus, whether that injury were to have been revenged on the Gallo- Grzecians, was not in the choice of Cn. Manl'ms, but of the people of Rome: Catos o- pinion was, That Gefar fhould be delivered up to the Germans, for making a War againft them without order : But (as I believe) not fo much regarding the equity of the thing, as indeed to free the City of the fear they had ot fo potent a Mafter ; for the Germans had given affiftance to the Gauls, being then enemies to the Romans ; and therefore had no reafon to complain of any wrong done them, in cafe that war with the Romans againft the Gauls were juft. But Gefar fhould have been contented to have beaten the Germans out of Gallia, which was the Province allotted to him , and not have profecu- ted the War into Germany, without firft confulting the people of Rome ; efpecially confi- dering that there was no danger then imminent : The Germans therefore could have no right to demand Gefar, confidering that they had given the Romans juft caufe to make War upon them -, but the Romans had juft caufe to punifli C&far for tranfgreffing his F 2 Commiffion ? II }6 Of a Solemn War. BOOK I. — ■ ■ — ■ > - — — — ■■ ■ " " ' ' ' — — Commission ; as the Carthaginian Embaffador told the Romans plainly, in the very like cafe , / do not thinl^it fit for you? faith he, to enquire whether Saguntum were befieged by the publick. EdiEl of the City of Carthage, or by the private Authority of our General •, but whe- liv, I. ai. tber it were done jufily or un jufily ? For it concerns us only to call our own Subiecl to an account , by whcfe order he did it. The only difpitte between us and you is, Whether it might be done wi.h- out breach of cur League with you or not? Cicero defends the fart both of Otlaviw and of Decimus Brutus, who upon their own private judgments made war upon Anthony : But although it had been as dear as the Sun, that Anthony had deferved it, yet fhould they have confuted the Senate and the people of Rome , before they had begun it. For al- though it were granted, that the affront given,did manifeftly delerve an hoftile invafion ; yet ought they to have expected the judgment of the Senate and People of Rome, whe- Though a juft tn£r it had not been more expedient for the Common-wealth, at that time, to have dif- caufe of War fembled r, than to have revenged it i to have treated with him about Articles of Peace, be given, yet than to have rufh'd prefently into Arms : For no man ought to be compelled to purfue fliould k be j ; j s own Right, when it cannot be done without fear of a greater lofs. Befides, Sup- periors 'to " P°f~ e that Anthony had been declared an enemy, yet ought the Senate and People of Rome judge , whe- to have had their free choice , under whofe conduct that War fhould he carried on. ther it were Thus the Rhodians anfvvered Cajfuts , demanding Agdes of them according to their fafer at that League, That they were ready to fend them if the Senate fhould command them. By diflcmbled * tms anc * tne hke examples (for many fuch we lhall meet with) we may learn, not to or to have re- approve of every thing that Historians (though of never fo good fame) teem to cora- venged it. mend unto us : For fometimes they are awed by fear, fometimes byafled by affection j Hiftoriansnot fitting their Stories to their own occafions: wherefore in fuch cafes we fhould endeavour approved*. t0De g u '^«' by our own uncorrupted Judgments, and notrafhly to makethofe Actions our Precedents, which deierve rather to be excufed than applauded ; whereby we may be drawn into pernicious errors. Now whereas it hath been faid, That a publick War cannot juSlly be undertaken without the Authority of the Supreme Magiftrate \ it will be neceflary for the better underflanding as well of this Queftion, and of that of a So- lemn War, as of divers others, to enquire what that Supreme Power is , and in whom it refts : And the rather, becaufe the Learned of this Age, do not fo well determine it; for whilst each of them purfuesthis Argument, rather according to prefent ufe and cu- stom, than according to truth •, they have rendred that which, of it felf , was not very eafie, much more dark and obfeure than it was before. *yj That Moral Power whereby Common- wealths are governed, which Thucydides calls The civil tnc Civil Power, he defcribes by three things •, where he calls a City, that is truly io y Power,what ? Wwcutv, jx/ji Jtwv, ii/Js—Xn, that is, i v That it fhould have a power to make or abolifh Laws. 2. That it fhould have a power to pafs Judgments. And 3. To create Magi- Urates, or which the word will likewife bear, to raife Taxes ; for every Common- wealth Vol. I. 4. ought to have a Moral Power in thefe things. Arifiotle divides the administration of this power into three parts : The firft is, The confultation about things common ; as a- bout Pence, War , Leagues to be either made or broken. The fecond is, The choice of fit Perfor* for Magistrates. And the third is, A power to determine all Controver- sies. Dionyfms Halicamaffenfis makes the Civil Power to confifl in thefe three things : 1. The Creation of Magistrates, 2. The Legislative Power, And 3. The power of con- cluding either Peace or War. And el fe where he adds this fourth, namely , A power to determine all differences, by pafling definitive Sentences :, and by and by he adds,The care of Selling Religion, and the power of calling Affemblies. But he that wouid right- ly divide this power, fo that nothing be cither defective or redundant, may do it thus : He that rules in any Common-wealth, doth it partly by himfelf, and partly by others. What he doth by himfelf concerns either Univerfa's or Particulars : what concerns Um- verfals, are the making of Laws or the abrogating of them ; and thefe are either facred (fo far forth as concerns the Civil State) or prophane. This Arifiotle calis the Art of building up a City. Thofe Singulars fbout which this power is cenverfant, are either things directly Publick, or Private, yet fuch as are in order to Publick. Thofe that are directly Publick, are either Actions, as Peace, War, Leagues j or Things, as Taxes, Cuftoms, Tributes, and fuch like : Wherein alfo is comprehended that eminent Do- minion, that every Common-weaith hath over the Perlbns and Goods of its own Sub- jects, io far as concerns the publick fafety : And this Art Arifiotle terms by its general name, Political, that is Civil, or the Art of Counselling and well Advifing. Or fast faid) they are things private ^ namely, things controverted between Singular perfens, the determination whereof doth much conduce to publick peace and fafety, and this Art Arifiotle terms judicial. But thofe things which he difpatcheth by another, he doth either by Magistrates or by Procurators , among whom we are to place Embassadors, and Envoyes. And in thefe things do principally confift the Civil Power. That Chap. iii. Of the Supreme Corner. 17 That we call the Supreme Power, whofe Acts are not fubject to the power of another, V 1 1. nor can by any Humane Authority be made void -, when, I fay, by another, I exclude Power Su- liim who hath this Sfpreme Power, in whofe power it is to change his own Will •, lb al- pr«mewh«it fo I exxlude his Succellor who hath the lame right, and fo the fame power and no other. ,s ' This therefore is that which we call the Supreme Power: Now let us fee in whom it in whom it is. refts, the Subject wherein this Soveraign Power remains, is either common or proper: As the common Subject wherein Sight refts is the Body, the proper Subject is the Eye; •fo of this Supreme Power, the common SubjecT; is the City or Common-wealth, which,' as I faid before, is a perfect company or fociety of men. Hence then we exclude thole who have given themfelves up to the power of another people, as, thole Nations that were conquered by the Romans , were no longer called Kingdoms , but Roman Provin- ces: Forfuch a people cannot be called a City, in that fence wherein we now take the word, but the unworthy Members of that City that conquered them, as Servants are the meaneft Members of a Family. Again, It fometimes happens, that of divers people there is but one and the fame head, and yet every one of thefe people do conftitute one perfed Society ■■, for it is not fo in the Moral, as it is in the Natural Body , where it is not poflible that one Head mould govern two Bodies : For in the Mpral, one and the fame perfon diverfly confidered, may be the head of divers and diftinct Bodies, whereof this is a molt infallible fign-, for whenfocver the Regal Family of him in whom the So- veraign power over divers Nations was united , Ihall be extinct ; the power it felf fe- parates, and each reverts to its own people. So it may fall out, that many Cities may be linkt in fo ftrait a confederacy, that (as Strabo fpeaks) they may conftitute but one well governed Body •, and yet doth each of them (till retain the ftate of a perfeft City ; as is well obferved both by others , and alfo by Ariftotk in divers places ; ib then the common Subject wherein this power refides, is a City fo underftood as I have already expreft. But the proper Subject of this power is either one perfon or many, according to the feveral Laws, Cuftoms, and Manners of every Nation. And here firft we muft difclaim their opinion, who affirm the Supreme Power to be VIII. (every where, and without any exception) in the People •, and that fo fully that it is Not ln the in their power, either to inforce or to punifh their King, if he govern amifs : What P eo P Ie * great mifchiefs this opinion, being once fixed in the minds of the Rabble , already hath, and hereafter may introduce, there is no wife man but may eafily difcover. For con- . futation of which opinion , we offer thefe Arguments to the more ingenious Reader. proved By all the Laws both of the Hebrews and Romans, it will appear } that it is lawful lor Exod. 21. 6. every man that hath power over himfelf, to bind himfelf as a Servant, or an Apprentice GtU. l. 21.C.7. to whom he pleafeth. And why then fhould it not be as lawful, for any people natu- rally free, to give themfelves up to any one perfon or Society to be governed wholly by them, without retaining any part of their liberty to themfelves ? Neither will it fnffice to fay, this is not to be prcfumed} for the queftion is not what in a doubtful cafe is to be prefumed, but what by Right may be done •, and it is as vain and frivolous to urge the inconveniences that may arife from hence: For there is no form of Government No firm of whatfbever, be it never fo well fanfied 'and framed in the Brain , but upon the exercife Government of it will produce fome inconveniences and fome dangers with it ; fo that we muft, do "" tll0ut ( 0,11C what we can, refolve to take the advice of the Comedian, Am hac cum Mis funt ha- encCi ben da, aut ilia cum his mittenda funt ■, cither to accept of the inconveniences with the conveni- , enceSf or to renounce both , and fo live like Beafts without Government, which is the great- eft inconvenience of al). As there are feveral kinds of Trades or Call iDgs for men to live by, fome better, fome worfe, and every man is permitted to chufe which he pleaf- eth; fo there being feveral forts of Government, it is in the peoples choice which of them they will be governed by : Neither is the right to Govern to be meafured by the excellency of the Form, whereof divers men judge diverfly, but by the freedom of their own will: What Cato fometimes faid of Laws, may as well be faid of Governments-, There are none fo perfetJ, but have fome defells. But what the fame Cato obferved is very true, It is fuffkient to commend any Government, that it produceth good effects in the general, and profiteth the greater part of mankind. Now, as Cicero fpeaks, To reckon D u up all the inconveniences only in any Government, and to pafs over with filence all the convenien- ces is ttnjufti becaufe the good that we feek^for we cannot obtain, without the evil which we would avoid. But of thefe feveral kinds of Government our choice being made, and the right thereby transferred to another, to reaffiime it at our pleafure upon what pretence focver is unjuft. M any caufes there may be for which a people may be induced to renounce, and yield up unto others all«right of Government : As namely,, when they fhall be reduced Many teifons into fo great danger of their Lives, that no other way can bs found whereby to defend there may be, themfelves-, or when they fhall be oppreft with fo much want, as that they cannot o- why a people therwife fuftain themfelves. Thus the Ifraelites being diflreft by the Ammonites, fent {hemfekes "o for Jephtba, and rather then be oppreft by a Foreign enemy, they transferred the Go- oe Governed! vernment by another. • 3 S Of the SoVeraign Tower. BOOK J. vernment upon him, whom before they had banilhed, Judges n. This alfo was the condition ot the Campafies,vihen they furrendred themfelves unto the Romans, in this Form •, We, fay their Embattst&OI^intkename of all thepeople of Campania, Mo freely furrender and give up oar filvss, our City Capua, ew Fields, Temples, together with all that we have, both di- vine and humane, into year power, OConJcript Fathers. And iome people we may read of, who have offered themfelves to the Romans upon condition of protection only,, and have App, been rejected : as the Falifci, and the Sammies. And if io •, what then fhould hinder, but Liv.lib. <. thatfome people may in like manner furrender all power and right ever themfelves to lib. 8. jonic one man, by whofe wifdom and power, they expect protection ? Alfo it mayfo happen, that a man havingvaft poffeflions will not admit of any to inhabit his Countrey, but under condition to fubmit to his Jurildiction : or, It is polFible, that a man having large Territories, and a multitude of feivants, may manumit them, givingtoeach a pro- portion of Land, on condition, that they yield him their fubjeeYion with fome kind of Tribute. Precedents of this nature we want not, Tacitus fpeakingof the Germans, laith, That every fcr-Jant hath his fever al houfe, and peculiar eft ate , and governs his own Family, his Lord lmpofng upon him what proportion of Corn, Cattle and Garments he pleafeth , which ht readily pares, an£ as afervant, hitherto, obeys. Add hereunto what Artjtotle obferved, Some people That fome men arc naturally fervants ; that is,fo apt for (ervitudc,.as if Nature had made naturally fer- them for no ether ufe: and fo are fome people too of fo ferviie a difpofition, that they v,le- know better how to obey, than how to govern , fbch were the Cappadotians, who told ■ the strab. lib. i- Romans plainly, when they offered them Freedom, that they could not live without a King. So Philoftratw in the Life of Apcllonius, h is but folly to fet at liberty the Thro- jufl. 1. 38. lions* Myftans and Getcs, for they value it not. Befides, there were not a few people who have been pcrf.vadcd to admit ot Kingly Government by the example of other Nations, who for many Ages have been cblervcd to live very happily under it. Seneca fpeaking of Brutus, fattb, Though he wae in other matters a gallant man, yet in this he fecmed to mete x'J' 2 ' ' w 1 Not to have behaved hiwfelf lihe a Stoick : That he was cither affrighted at the Name of a King, when the be(i Form oj Government is that which is under a good King : Or hoped for Lv~ berty there, where the rewards due to Empire and Subjection were fo great : Or that he could Th Ur believe it poffible to recall the Primitive Government, tralefs he could reftore the Citizens to their vernment is ancient Maimers : or that he could reduce them to an equality of Civil Rights, and put in fores under a good their ancient Laws, when he Jaw fo many thoufands of men to fight, Noil Utrum fervirent fed K' n g- Utri, Not whether they fl:culd obey or net, but whom they flwuld obey. Some Cities, faith Livy t were fo well plcafedwith the Government of Eumenes, that they would not have changed their condition with the Freeft Cities in the world. The like is recorded by Jfocrates, That many deferted the Free Cities of 'Greece, to live in Salamina a City in Cyprus, under the Mild Go- vrmment of Evagoras. Again, fuch maybe the condition of a City, that thefe remains no probable hopes of fafety, unlefs they put themfelves under the Dominion ofonefingle perlon. Such was the Hate of the City of Rome, which molt wife men thought could nor have been preferved, had not- Aaguftus Grfar allumed tohimfelf the fcle Government of the whole Empire. Such ea'cs,I fay,not only may,butdoufually happen,asC«W0obferves in the fecond of his Offices : But ( as hath been already faid ) like as private Dominion may by a J nft War be lawfully acquired, fo alfo may Civil Dominion, or the right of Empire, if it depend not upon fome otiicr. Nor would I be thought to fpeakthisof Monarchical. Government only, where that is received , hut the fame Arguments will hold foT the ac- quiring of an Oligarchical Government, where the Nobles have excluded the Common?, and allumed the Government upon themfelves. What, that there is any Common- wealth fo popular, wherein fome, as the poor, the ftranger, women and youths are not excluded IrompublickConnfels? Even now there are fome people alfo that have others truckling under them, and who are no lefs fubjedt unto them, than they could be unto liv.lib. 1. Kings. Whence arifeth that Quefl ion in Livy, Are the Collattne people under their own J 'a- r';fdieiion i or have they any power that is their own? And the Campams when they furren- l.ib. 7. dred themfelves unto the 'Romans, are faid to be under, the Jnnfdiction of the Romans. Acarnania as alfo An-phtlochia are faid to be fubject to the eAEtolians : fo are Pcr£a and Camus to the Dominion of theRhodians. The EmperourOr/jo gave all the Cities of the Moors to the Province of Granada in Spain, nsTacitus teftifics : So did Philip the City Some Kings Pydna to the Otynthians. Many other examples are here produced, all which wereabfo- are fo abfo- lately Null , if it be granted, That the Right of Government be at the difpofalof them Iute,(haf they tlint are governed. Again, fome Kings there are, that are not fubject to the whole body jeft rathe °f rilc P co P ,c 5 as Hjftories both Sacred and Prophane do tcflifie. // thou f\ iftotle denyes, that inch Kingdoms do conftiriKe any Special Form of Govern- ment, allowing them but as parts, cither of Optimacy or Democracy. Nay, even among fuch people as were not perpetually governed by Kings, we may find fome footfteps of Soine J" vs a Temporary Monarchy, not at all fubjeel unto the People./!/. twins Solinator inhisCen- tora ™} Xi £J K forfhip disfranchised all the Tribes but one in Rtmefor tleir Ingratitude •, thei eby Shewing Jj°^ ™ wr . his Lit). 5. Vit. cleom. Vit. Agef. Corinthiacis. Kings in name only, not in power. 40 Of the SoVeraign Power. BOOK I. his power over the whole body of the people. And fuch was the power of the Dictators in Rome., from whom there was no Appeal, no not unto the People ; whence it came to pals, that as Livy informs us, An Edict from the Dictator was as Authoritative as an Dictators in Oracle from God : Neither was there any fafety at all but in obedience. For though K in ps ray' Kings? " were baniihed, yet was the Regal Power comprehended in the Diftatorfhtp. i. Arg.°an- The Arguments produced for the contrary opinion, are eaiily anfwered : For in the fwered. firft place, Whereas they fay, the Thing that conftitutes is greater than the Thing; con- The Thing, fluted ; and therefore the people that make the King, mult needs be greater than the tut" noTai- ^' n § tlle y nave mac *e: Ianfwer, That it is true, where the Authority of the thing con- ways' greater ftituted doth always depend on the will of the Conftitutors •, but not where the Authori- than the diing ty once freely given, doth ever after fully remain in the perfon that received it. As for conftituted.# example, A woman bAg free, may chufe whom fhe will for her Husband ; but having once chofen, the woman is perpetually bound to obedience: (So he that refolves to put himfelf as an Apprentice, hath a freedom to chufe his own Mailer •, but having chofen, The wife An- cannot free himfelf when he pleafeth.) It was well faid of Valentinian, who being firft tinlm allH ' cno ^ en Emperor by the Army, and afterwards denying them a requeft, which feemed unto him unreafonable, told them , That it was indeed in their power to have chofen, or not Tljeodoret lib. to have chofen him ; but being chofen, what ye demand is in my power to grant, but not in yours 4- '•$• toexatl: It is your duty to obey, and mine, being your Emperor, to confider what conduceth to the General Safety. Neither is it altogether true, what they feem to take as granted , that all Kings are conflituted by the people-, as may eafily be proved, as well by fome Fathers of Families, who admit of Strangers under the condition of Subjection, as of fome Nations conquered by the Sword. 2. Arg. Another Argument they draw from that maxim of Philofophers, That all Government is granted'for the benefit of the people, and not of the Governors •, and therefore the end being more noble than the means, they for whofe good Rulers are conlrituted, are above the Rulers themfelves. But neither is this univerfally true, That Government is for the good of the perfons governed •, for fome are for the fole ufe of the Governors, as that of a Matter over his Servant, is chiefly and principally for the good of theMa- fter^ but the good of the Servant is but extrinfecal and adventitious, as the Phyficians gain is but accidental to the Phyfick he gives. There are alfo fome Governments that are for the mutnal benefit of both parties, as that of an Husband over his Wife: So of Empires, fome are gained by the Sword, and thofe doubtlefs are for the benefit of the Conqueror •, neither is it therefore to be accounted tyrannical, which word (as now ta- ken) impiyes fomewhat of injuftice: And fome Empires are for the mutual good, both of him that governs, as of them that arc governed •, as when Jephtha was made King to defend theopprefled Gileadites. Yet notwithftanding I cannot deny, but that in molt Empires, what was long fince faid by Hefwd, Herodotus, and Cicero, is very true, That Kings are conflituted to adminifter Juftice to their people. But to infer from thence, that thee>\ Cautions. 41 other opinions of the Eflcnes, Porphyry commemorates this, That Empires fall not n any Lib. 5. man by chance, but by the f fecial Providence of God. Cujus juffu homines nafcmtur, hups juffi reges confiituuntur, apti its cpii in Mis temporibus ab ipfis regnantur ; Look? faith lrensus, by inmeus. whofe providence it is that men are born, by the fame it is that Kings are ordained: Not by chance ItisGods pro - or peradventure, but by Gods fpecial appointment •, as being fitted for fuch times, in which, videsice thac and for fuch per fans, over whom they are to rule, (according as it doth beft advance thofe fuch^nme^ great defigns of Gods Wifdom and Counfels, whofe internments they are.) Thus is he and to fuch a laid to raife up Pharaoh to manifeft his power in him, Exod. 9. 16. Rom. 9. 17. Thefe people, were the fober thoughts of the Egyptians themfelves, as Diodorus obferved , Exiftimant nan fine divina providentia perveniffe Reges adfummam omnium potefiatem ; They are perfxva- ded, that it is not without a divine providence, that Kings afcend to the highefi power. So St. De Chit. Del Auguftine, He that gave the Roman Empire to Auguftus, gave it afterwards to that monjler of $>'• 5- c - 2«. men, Nero : He that fetlect the fame Empire in Vefpafian and his Son TitUS, did afterwards transfer it on Domitian. That Conftttution of Clement is very pertinent to this purpofe, Sb. 7. c. it: Regem timebis gnarus a domino eletlum ; Thou flialt fear the King, knowing that his choice is from God: Neither will it avail to fay, that we read of fome people who have been 1 Kin. 4. 16, punifhed for the fins of their Kings-, for this happens, not becaufe the people do not 2 Kin. 10. 17. reftrain and puaiih their Kings, but becaufe they tacitely confent to their vices : *2Sam. 24.17. Or haply without regard to this, he makes ufe of that fupereminent power that he hath 0- It is one A ver the lives of every of his Creatures, whereby to punifh thofe Kings by taking away their the fame God Subje&s, it being the proper punifhment of Kings to be thus weakned *. that fets up one and pulls down another, and that transfers Crowns and Scepters from one Nation to another People , and that rules the Peo- ple by whom he pleafeth. Now to fuch as judicially perufe the Writings of the Prophets, they will appear moft evident ; for they do not only foretel the Counfels of God : but the very Kings and Princes , by whom God intends to bring about his fecret purpofes , are therein defcribed, yea and fomctimes named, long before they were born, as Jofias by name, 1 Kin. 1 $. 2. Cyrus by name, Ef. 45.3. Which plainly argues, that God doth not only forefee what will come to pafs, but pre-ordains fuch and fuch perfons, by whom he intends to effeft his purpofes; yea and fits them with habits and graces accordingly. * The proper punifliraent of Kings is to be deprived of their Subjefls. Others there are that feem to fanfie to themfelves mutual fubje&ion, as in cafe the IX. King (hall govern well, then the whole body of people fhould obey ; but in cafe he go- Mutual Subje. vern ill, then he ought to be fubjeft unto the people. Now if what they fay do amount ^ ion rcfuted ' to no more than this, That our obedience to Kings binds us not to do any thing that is manifeftly wicked •, they fay no more than what all fober men will grant : Yet doth not this imply any compulfion or any right of Empire that is in the people. But in cafe they had a purpofe to divide the Government with the King (whereof we (hall have occafion hereafter to fpeak fomewhat) they ought to aflign bounds and limits to the power of ei- ther party, which may eafily be done by making diftinftion of either Places, Perfons, or Affairs. But the well or ill management, efpecially of Civil Affairs, being apt to admit of great debates, are not fo fit to diftinguifh the parts-, for great confufions muft necef- farily arife, where the right of power is to be judged of by the pretentions of good or evilafts, fome judging of thefe Afts in favour to the King,others in favour to the people j which confufion no people, that I as yet know, were ever fo imprudent as to introduce. Thefe errors being thus refuted, It remains that we fet down .fome Cautions, which X. may guide us to give a right judgment, to whom in every Nation the Supreme Power Cautions in belongeth -, whereof the firft is this, That we fuffer not our felves to be deceived by fuch judging of the names as are ambiguous in fence, nor with the fhew of outward things. As for exam- Supreme pie, Although amongft the Latins, a Kingdom and a Principality are ufually oppofites^ as when Cefar laid , the Father of Vercingetorigis having got the principality of Gallia, Kingdoms wasflain for his affecting the Kingdom : And when ft/a in Tacitus faid, that Germanicut and Princi pa- was indeed the Son of a Prince of the Romans , but not of the King of the Par- ^ol^ X °^A thians. And when Suetonius faid that Caligula wanted but a little of changing his Princi- CU0U y u C pality into a Kingdom ; yet we find thefe Titles of times promifcuoufly ufed. For both the Lacedamonian Generals, who derived themfelves from Hercules, though afterwards £»*• ft they were fubjefted to the Ephori, yet were ftill called Kings. And fome ancient Kings of Germany there were (as Tacitus relates) who Reigned, magis fuadendi, quam jubendi poteftate ; more by perfwajions, than by power. And as Livy fpeaks df King Evander , that L ,-^ j, he governed rather as a prudent Magiftrate, than as a King. Thus Solinus calls Hanno the King of the Carthaginians : And he that wrote the Life of Hannibal faith, That as the Romans chofe every year two Confuls, fo the Carthaginians chofe wo Kings, (meaning their Suffetes or Judges.) Among thefe Kings, improperly fo called, we may likewife reckon j their Sons, whom their Fathers were pleafed to honour with the Title of Kings, though they referved unto themfelves the Regal Power. Such was that Darius, whom his Father Artaxerxes commanded to be killed, being firft condemned for plotting his Fathers death, as Plutarch relates the Story. So on the contrary, The Roman Emperors, after they had p !uti ArtaXd I openly aflumed unto themfelves Regal Power, contented themfelves with the Nam^s adfimm. G and 42 Of the Supreme Voiver. Cautions. BOOK L anckules of Genersls or Princes. Nay, the Enfigns of Regal Pow.er are in fome Free Cities ufually given to Princes. But now the aflerubly of States, that is, of thofe that reprefent the whole body of the people, digefted, as Cumber fpeaks, into three orders \ Parliaments namely, Prelates, Nobles, and the Principal BurgefTes of Cities, do in fome places in- why called, deed ferve to this end only, to be the Kings Greater Council, whereby the grievances of the people, which are oft-times concealed by his Privy Council, may come to the Kings knowledge, who have alfo power to determine them, as it fhall feem good unto them, accord ing to Cuftome. But in other places they have power to call into queftion the Actions of the Prince , and alfo to prefcribe Laws which (hall be binding even to the Prince himfelf. There are many alfo that place the difference between the Su- preme and the Lefler Powers, in the tranflation of the Empire by Election or Succeffion ; Attributing the Supreme Power to this latter, but not unto the former. But this holds, not univerfally true: For Succeffion affignsnotthe Form of Government, but the Con- tinuation of a Form in the fame Family. For the right which began in the Election of fucha Family is by Succeffion continued. Among the Lacedaemonians the Kingdom, even after the Ephori were conftituted, was hereditary : And* of fuch a Kingdom or Principa- lity it is that Anftotle fpeaks, where he faith, That fome pafs by the right of Blood., and fome * by FJettion. And fuch in.thetimeof the Ancient Heroes were molt of the Kingdoms of Greece, I mean fucceffive ; as bpth Ariftotle and Thucydides obferved \ fo doth Dionyfmt Halkarnaffenfis. Whereas on the contrary, the Roman Empire, even after all power was taken as well from the Senate as people, was always transferr'd by Election. XI. A Second Caution (hall 'be this, It is one thing to enquire concerning the thing, and The Second another to enquire concerning the manner of holding it, which holds good not in things Caution.. Corporeal only, but in things Incorporeal. For as a Field is a Thing, fo alfo is a Pal- The thine it fa g e J an Aft > or Wa Y- But tneI " e :fomC m ^ ll3Ve b ? a fu " rigflt 0t P r0 P riet y> otn - ers felf diftin- by a right ufufructuary (as a Farmer hath a right to his Farm,) and fome others by a Tem- guifhtfrom porary Right : As the Roman Dictator the Soveraignty but by a Temporary Right. So the manner of Kings, as well thofethat are firft Elected, as alfo thofe that fucceedtotheminarightline, holding ic. hoId theif Kingc i oms by an ufufructuary right • (that is, they hold them as to all the rights and profits, but not to alienate them. ) But others hold their Kingdoms by a full Righi of Propriety, as they that by a juft War have conquered them t Or he to whom any people, to prevent greater mifchiefs, have yielded themfelves Subjects for protection, lb as they referve nothing unto themfelves. Neither do I agree with thofe who hold that the Roman Dictator during his time could not have Supream Power, becaufe it was not perpetual. For the Nature of all Moral things are belt known by their operations t Wherefore thofe powers that have the fame effects are to be called by the fame name. But a Dictator during his time, exercifeth all Rights that/a|King doth, who holds his Kingdom by *a full right. Neither can any Act of his be made void by any other , as may appear by the Cafe of Fabitu RutiUanus , whom when the people would have preferved, they could deal with the Dictator by no other means but by Petition : Whence we may conclude, That he had the fame fupreme power. Now the Duration or Continuation of a thing,alters not the nature of it:, yet if queftion be made concerning the dignity which is ufually called, Majefly : doubtlefs, he that hath it perpetuated unto him hath the greater Majefty, than he that hath it for a time limited only ; becaufe the „ manner of holding it adds much to the Dignity of him that holds it. Now what hath have abfolut been ^ Kings, nia y a lfobe faid of fuch as are, either during the Minority of Kings, power during or during their Captivity, or Lunacy, appointed Protectors : For neither are thofe fub- theirdme. ject unto the people, nor is their power revocable before the time come, appointed by the Laws. But it is otherwife with thofe who have a Right which is at any time revo- SomeKing- cable: As they who reign only during the pleafure of others, fuch was the Kingdom of during the tbe V 3110 ' 3 ^ m Africa, and of the Goths in Spain, who were as often depofed as they pleafureof difpleafed the people. And every act of theirs might be made void, becaufe they who the people, gave them that power, gave it under condition of Revocation : And therefore not ha- p*ocop. ytnd. ving the fame effect, they could not be faid to have the fame Right. l,b ' y . Againft what I have before faid, That fome Kingdoms are held in full right of propriety, Some Sole- t ' ia * t ' s ' as Patr ' m0n ' ai '• There are very learned men that make this objection, That raign powers Men being free, are not to be traffickt away from one to another, (as things that are are held fully, bought and fold : ) But as the power of a Mafter is different from that of a King?} fo is with a right perfonal liberty from that which is Civil: And the freedom of lingular perfons, from Hottm^clnt'' the freedom of States. The Stoicks themfelves confefs, That there is a kind of fervi- Hliifl. qn*ft.'i. vitudein fubjection, and the Subjects of Kings are fometimes in Holy Writ called their Diog.Lai't. Servants*. As perfonal liberty excludes the power of a Mafter, lb alfo doth civil i Sam. 22.28. liberty that of Empire, and all manner of Soveraignty properly fo called. Livy 2 Sam. 10. 2. thus oppofeth them , Before men had tafied the fmetnefs of liberty, they de fired a hiv. fib. "' %'"£• -And again , What a fhame if it f«r the feoplc of Rome , who when they fervcA Lib. 7. • under Chap. iii. Of the SoVeraign 'Power. ' 43 under Kings, were never fir. tit tied by War-, nor bcfiegedby an enemy, being now a free people to Lib. 45. be befiegd by the Hetruicans. And in another place, The people of Rome live not now under Kingly Government , but in liberty. And elfewhere he oppofeth thole Nations that were free, unco thofe that lived under Kings. So alfo Seneca the Father , We ought guaf. r. not to give om opinions in a Free ft ate, in the fame manner as we did under Kings. Yea, and Cicero, Either we did not well to expel Kings-, or we ought to reftore the people to liberty, not in v ' leg : ?' words only, but in deeds. Afcer thefe comes Tacitus, 7 he City of Rome, faith he, was at firft governed by Kings, but it w.a L. Brutus that inftituted Liberty and ConfuLtr Authority. And to be fhort, every where among the Roman Laws, when they treat of War and recuperatory Judgements, all Foreigners are diftinguifht into Kings and Free people. The qucltion then here put, refpe&s not perfonal, but civil fubjedtion. In which ferife, fome Nations are faid not to have power over themfelves. Hence is that in Livy, Which Cities, Fields, and Men were fometimes under the power of the ^Stolians. And that alio, Are the people of Collatia a free people ? (i.e.) have they any power over themfelves ? Ne- verthelefs, to fpeak properly, when any people are faid to be alienated, it is not the When a King, men, but the perpetual right of governing themfelves, as they area people, that isalie- domisaliena- nated. As vain and frivolous is that Inference, which concludes, That becaule Kings [^' ItIS ryclis, one of the Lacedemonian Princes, in his own Right. So we read that Solomon gave Hiram of Tyre twenty Cities, not of thofe that belonged to the Hebrews : For Cabul t Kings 10; ( which was the name impofed on thofe Cities) was feated without the Hebrew bounds, Jof. 19. 27. But out of thofe, which the people that were enemies to the Jews, had held , K - till the days of Solomon^ and were partly conquered by the King of Egypt, and given unto 12 .' ns ' ? ' ' Solomon in dowry with his daughter, and partly conquered by Solomon himfelf. For that thefe Cities were not at that time pofTeft by the Hebrews is evident from this, That as iChroaS.i^ foon as King Hiram had reftored them to Solomon, he then planted in them a Colony of the Jews. So we read that Hercules gave the Kingdom of Sparta which he had con- vied. 1.4. queredby arm?, unto Tindarem, on this condition, That if Hercules fhould have any children of his own, fhe fhould reftore it to them: And having conquered the Epirots, he gave them to Apollo. So we read that zAlgimus King of Boris, having called to his affi- SerVi ad ftance Hercules, in his War againft the Lapitha, gave him a part of that Kingdom as his o£m»d. reward. Cychreus King of Salamine, having no children, left his Kingdom by his Te- Apollod. ftament unto Teucnu. Amphipolis was given in a Marriage dowry to Acamantes, the Son of Thefeits. And in Homer, Agamemnon promifes to give unto Achilles feven Cities. So King Anaxagoras freely beftowed two parts of his Kingdom upon Melampm. So again ?f tet - Sirv. ad in Homer, we read that Jobates gave his daughter to Bellerophon, with a part of his King- ' c ° s ' domin Dowry. And Juftin tells us, That Darius bequeathed by his Teftament his King- jjj^*, dom to Artaxerxes, but the Cities whereof he was governour only, to Cyrns. And pro- bable it is,. That the fucccflbrs of Alexander every one for his part, did fucceed him in that full Right of Governing the Nations, which were either formerly under the Perfian Empire,or which they afterwards gained,by the right of their own Conquefts. And there- fore it is not to be wondred at,that they claimed unto themfelves the Right of Alienation. So when King Attalus the Son of Eumenes, had by his Teftament made the people of Rome heir to all his goods, they under the name of goods, pofTefied themfelves of his King- dom, whereof L. Florin fpeaks thus, The Word, Heir, implying an Inheritance, the people Lib. 2. spit, of Rome held his Kingdom as a Province, and not as gained by War or by force of Arms : But Uv. 58. G 2 by 44 Of theSoVeraign Tower. BOOK I. O'dt. i. in Ridlum. Triton. Lisy Am. /. 41. JbfyW. Trpcofitu, Liunckvins Ub. 2. Umitib, 4, XI IT. Some are held not lb fullv. XIV. Sonic power not Supreme, yet fully held. . XV - This appears by the align- ing Tutors and Prote- tfors in King- doms. Vol- Mux. lib. .6. Tit. 6. c. 1. by what , vim yet more righteous, by a Teftamehtary Right. So when afterwards Ntcomedes (the King of BithynU dying) made the Romans his heir. They prelently reduced his Kingdom into the form of a Province: Whereof Qcero thus, We have added to our Inhe- ritance the Kingdom of Bithynia. So thit par t of Libia, wherein the Cities Berenice, Pto- lomais and Cyrene itcod, was by King .Appio given by Teftament to the lame people. And Tacitus mskes mention of fome Fields, which belonging formerly to KmgApoio, were by him left together with his Kingdom, to the people of Rome. Procopiu* like wife ttlis us, That King Af.ices by his Teftament divided the Kingdom of Armenia, leaving the greater Armenia to Arfxces, and the lefler to Tigranes. And hence it was , That King fiferod having obtained from Avg.Cxfar a Puwer to leave his Kingdom to which of his Sons he plcafed, was fo often oblerved to alter his Teftament. This cuftoni alio was much in ufe amongft the Goths and Vandals, in thofe Kingdoms which they held by C( n'jucft. The fame we may obferve much praitifed among the Turks : Sultan Ala. dint bequeathed by his Will many Cities to Ofman : Bajatet alfo gave diverfe cf the Cities of Servu to Stephanm, in favour to his own Wife, being Sitter to Stephanas. Sultan Ma- homet bequeathed his Kingdom by his Teftament to Sultan Morat: and Mahomet the Turk intended to have divided his Empire, and to have left the Allan Empire to M*fta- pha, and the European to Anmrat. This alfo was frequently ufed in many other Nations. To rchearfe them all would be no lefs troublefome to me, than it would be tedious to the Readct. But thefe may fuffice to prove, That where Kingdoms are held by a full and abfelutc Right, they may be alienated : Yet lb. That though the Right of Empire may be transferred, yet doth every lingular perfon enjoy his own Liberty. But in thofe Kingdoms wherein the people have any power, by way of Election or Confirmation, Icoufefsit cannot be prefumed, That it was ever their Mind to fuffer the King to alienate his Kingdom. Wherefore what Gantzjut obferved, inVnguinus, as an Act without any Precedent, That he had by his Teftament given away Norway, we ought not to difapprove : For haply he regarded only the Cuftoms of the Germans, amongft; whom there was no fuch Right permitted* as to bequeath Kingdoms. For as Vapif. us in Tacitus faith, Empires cannot be bequeathed, as goods and bond-Haves may. Nor can a King, as Sd/z/wwobferves, by his Teftament, bequeath the people whom he hath gw vcrned, to the poor. Now whereas Charles the Great, Lewis the Good, and others after- wards ameng the Vandals and Hungarians, are laid to difpofe of Kingdoms by their Te- ftaments : Thcfe afFcrdtd rather matter of praife among the people, than argued the force of a true Alienation: And as to that of Charles, Ado makes fpecia I mention, that, he defired his Teftament might be confirmed by the Peers of France. The like we find in Livy, concerning Philip King of Macedon, who endeavouring to expel Per/is out of his Kingdom, and fettle Amigovtis his own Brothers fon in it, went throughout the Cities of Mace don fo'Siciting the Princes on his behalf. Neither is it to the purpole to objeft, That the fame Lewis rcftored the City of Rome to Pope Pafchal: Conlidering that the French having before received the Sovereignty over that City from the people, might very weil leftore it back again to the fame people, in the perfon of the Pope, being their chief Ci* tiz;r, and a Prince of the firft order. What we have hitherto admonifht, namely, That we are carefully to diftinguifh between the fpreme power it felf, and the manner of holding, it is fo true, That as many; Sove- raign Empires are not held by a full and abfolute Right •, lb there are many that are not i ipreme, that are fully and compleatly held : whereby it falls out that Matquifates and Earldoms are much more ealily either fold or bequeathed by Teftaments, than King- d< ms are. There is alfo another mark whereby this diftinftion may be feen, namely, in the Tu- telage or Protection of Kingdoms, when Kings and Princes are hindered or difabled ei- ther by fome difeafc, or through old age, or the like, from performing their duty. For where the Kingdom is not Patrimonial, the Proteclorfnip is theirs to whom the public k Laws, or iftiiey arelilent, the people (ha!! confign it. But if the Kingdom be Patrimoni- al, then to them whom the Father, or the neareft of kin fhall chufe. Thus did Ptolomy King of ts>£g\pt, appoint by his Teftament the people of Rome as Guardians to his Son, who to perform that truftfent M. ^■£militu Ltpidus who was their Chief Prieft, and had! been twice Conful, unto Alexandria to take care of the Government, and oftheChilds Education: By whoflcare, not only the Kingdom was preferved, but the Child in his. youth fo well ditciplin'd, that it was hard to judge whether he received more glory by his Fathci s great fortunes, or by the Majefty of his Guardian. So we read that in the King- dom of Epints, which firft depended on thefuffrages of the people, Tutors were publick- Iy aiTigned unto their young King Ariba: The like was done by the Nobility of Macedon to the Pofthumous fon of the Great Alexander. But in Afta the Lefler which was gained by the Sword, King Etmcncs dving, appointed his Brcther PiotecTror to his young fon Atta- in*. So did Hiero King of Sicily, by his Teftament confti-tute unto his fon Hitrorrymits what Chaf. iii. Of the Sovereign Tower. 4 ; what Tutors lie pleafed. But whether the King be alio in his own private right Lord of tivz Ibil, as the Kings of tAtgypt were after the times of fnfeph ; or as the Kings of the Indi- ans were, as Diodorut and Strabo teftifie ■■, or whether they are not, it makes no difference. For thefe are extrinfick to the Empire, and therefore can neither confticute another kind of Government, nor alter any thing as to the manner of holding it. The Third obfervation fhall be this, That an Empire ceafeth not to be fupreme, though y w r he that is to govern do by promife oblige himfelf either to his Subjects or to God, unto Soveraignty fuch things as do properly appertain unto his manner of Government, i mean noc here, not loft by fuch things as appertain to the Laws of God, Nature, or Nations: For unto thefe every an y promife Prince ftands obliged, though he promife not: But I mean though he do promife to ""deof any confine his own power within certain Laws and Rules, whereunto nothing can bind him beiong^nGc but' his oath or promife. The Emperour Trajan did folemnly imprecate vengeance en toeicherthe his own head and right hand, in cafe he knowingly failed in what he had promiicd. Law of God And the Emperour Adrian fware, that ye would never punifh a Senator without a decree or Nature, of the Senate. Anaftafuu bound himfelf by oath to obferve the decrees of the Synod of Chdcedon. And all the Greek Emperours did likewife oblige themlelves to obferve the Canons and Conftitutions of the Church. But by none of thefe Oaths or PromTcs doth the Power of an Emperour ceafe to be fupreme. This may clearly be illuftrated by comparing the power of a King with that of a Matter in his own Family : For although a Matter do promife to obferve fuch orders as he conceives to be moft conducing to the welfare of it •, ) et doth he not thereby ceafe to be fupreme in his own Family. Nor doth a husband ceafe to have power over his wife, though he have obliged himfelf to the contrary by fome pronufes that he hath made to her : yet 1 mutt acknowledge that where fuch Oaths and [Promifes are made , the foveraignty is thereby fomewhat ftraitened :, whether the obligation do only reftrain theexercifeofthe Act, asthatof Adriansabove- mentioned,or the very power it felf. If it reftrain the exercile only,then the ad that is done contrary to promife, is laid to be unjuft ; becaufe as we (hall (lie w anon, every promife gives aright to him to whom it was made. But if it reftrain the faculty it fe!f, then the Aft will be void, for want of a Right or Faculty to do it. And yet will it not neceffarily follow, that he that thus promifeth hath any power fuperiour to himfelf -, for his Act is not made void by any power above him, but by very right. Among the Perfians no man can fay but that their Kings were fupreme and abfolute in power, and not liable to give an account, as Plutarch teftifies : Nay their Kings were adored as Gods own Image; and as Jufiin tells us, were never changed but by Death. He was a King indeed, that laid to the Nobles of Perjia, Nevidercrmeotantummodoufusconfilio, vos contraxi ; c&ternm, me- mentote parendum vobis, magis quam fuadendam : Lefi I jlwuld be thought to govern by mine own y? *° counsels only, I have called yon together, but otherwise remember, that it is yonr duty rather to obey, than to perfwade. And yet did this very King at his Coronation fwear not to alter the Laws of that Kingdom made after fuch a form, as both Xewphon and Diodorm tefti- fie: and as the Hiftories of D.intel, and Plutarch in the life of Themifioclis inform us. ch.6,s, u So Jofephw tells us, That Pajliti could not be reconciled to the King becaufe the Royal is. Decree was gone out, which could not be broken. And long after them, Procopiw con- Plr f- * c - firms as much , where we may read a notable example to this purpofe. The very fame doth Diodorm Siculm relate of the Kings of aAEthiopia and zAigypt, who without doubt, as all other Eaftern Kings, had in their refpective Kingdoms abfolute Power ; and yet were they all at their admifhon obliged to many things by Oaths or Promifes : Which if they performed not, though whileft they lived, they could not be queftioned •, yet be- ing dead, their memories might be accufed, and being condemned, their carcafles might bedenyed folemn Funeral. This Apion records, Leges Tyrannorum Corpora infepultaex- civilfonfp tra fines prcjici jitbent. The Laws, faith he, command the bodies ef Tyrants to be ca]l out of their Territories unburied. In obedience to the like Law, the Emperour Andronicus de- _ ., prived his own Father Michael of Chriftian Burial, becaufe he followed the Faith of the " sor '' ls ' Latin Churches. And fuch another Law there feemed to be amongft the Hebrews, who would not permit the dead bodies of their wicked Kings to be interr'd among their good 2 , r ££ 2 £- 2?- Kings. The like wc may find in Jofephm concerning the two Jorams, the one King of IqT. Ant.hfr Juda, the other King of tfracl. By which excellent temperament of reverence and ju- c .$. $. ttice, they both preserved the Majefty of their Kings inviolable whileft they lived, and alfo deterred them from breaking their oaths and promifes by the fear of a difhonoura- blelnterrment.being dead. The Kings of Epirw were wont to make oath, That they would rule according to the Laws : And their Subjects likewife bound themfclves by Oaths to defend both him and the Kingdom according to the fame Laws •, as Plutarch in- forms us in the life of Pyrrlnu. Nay further, fuppofe a King fhould accept of his King- dom upon thefe terms, That in cafe he fhould falfifie his promife, he fhould lofe his King- dom •, yet were his power fupreme only, the manner of holding it would be i'o much impaired by fuch a condition, as would make that Government not much better than that; 4 /f ; prefcribed unto them, they were to be beaten with Rods. But this was no reproach unto them, neither was it by compulfton, but by a voluntary fufception, as a lign of their penitence : Nor was it done by any publick Officer ; but as he impofed it upon himfelf freely, fo he chofe whom he pleafed to do it •, and prefcribed both the manner and meafure of his own punilhment. But from all Coercive puniihment their Kings were fo free, that even that Law of Excalciation, Deut. 25. p. becaufe it was not without fome reproach, was not in force againft them. Yet notwithftanding all this, there were fome Cafes whereof their Kings had no Right at all to judge, but they were refervedto the Great Sanhedrim, or Council of the 70. Elders •, which being Infti- tuted by Mofes at Gods fpecial Command, continued by a perpetual fupply of Ele&ion, until the dayes of Herod: For which cauje , they are by Mofes and David frequency Deut t - t called Gods, and their Judgement, Gods Judgement. And thofe Judges are likewife pfai.W. 1,6. faid, to judge not for man, but for God, 2 Chron. 19.6, 8. Nay, \here is a plaindiftin- ftion made between the things of God, and the things of the King , 2 Chron. 19. 1 1. where by the matters of the Lord ( as the molt Learned among the Jews no interpret it) are * Of the SoVeraxgn Tower. BOOK I: Jer. 38. 5. Jof. Ant. Li 4. c. 17. In Criminal Cafes the King of Mac 1- dtn's power availed no- thing. Curt. lib. 4- Curtius lib. 6. • Curt. lib. 8. are meant, the Adminiftring of Judgement according to the Laws of God. That the Kings of Judah did by themielves fometimes inflicTt Capital punifhments, I cannot den? s wherein Maimontdes prefers thofe Kings before the Kings oilfrael: which is fufficiently clearedby many examples both in Holy Writ, and alfo in other Hebrew Auchors. Butyec the Cognizance of fome Caufes was not permitted unto them, as that of the Tribes, mat of the High Priefts , that of a Prophet. For it cannot be ( faith our Saviour ) that a Pro' phet penjlj cut of Jerusalem; Luke j 3.3 3. And this is evident by the ftory oi Jeremy, whom when the Princes demanded to death, the King anfwered them. Behold he tsln your power ; for againfi ycu, the King can do nothings Jer. 38. 5. Yea, and in another place, he that was condemned by the Sanhedrim, could not be releafed by the King himfelf. And therefore Hircanus, when he faw he could not hinder the Sanhedrim from pafling Sen- tence againft Herod, adviied him by Flight to fecure himfelf. In Macedonia, they that de- rived their Pedegree from Caranus, as Califthenes in Arianus reports, obtained the Govern- ment notbyFo>ce,but by Law. Now the Macedonians though they were accuflomed to Reoal G averment, yet had a greater fmack^ of liberty than other Nations. For it was not in the power of the King himfelf to take away the life of any Citizen. It was the Antient cuftome of the Macedonians in criminal matters to be judged by the Army; but in times of peace by the People : The Kings power availed nothing farther than his Authority reached. There is in ano- ther place of the lame Author another fign of the fame mixture mentioned, namely this, The Macedonians, faith he, ordained that according to the cuftome of their Nation, Their King fhoiild never hunt on Foot, but in the company of fome of his feleii Friends or Princes. The like doth Tacitus write of the Gothones , That they were under a frrider Government than others of the German Nation, yet not altogether without liberty. For whereas he had before defcribed a Principality thus, That it governed rather by a Perfwafive than Coercive Power. He now defenbes a Kingdom in thele words, When, faith he, One per/on rules without any limitation or exception ; and that not by entreaty , but by abfolute command. Suftathius upon the Sixth of Homer'sOdyJfes, defcribing' the Common- wealth of Corcyra, faith, That it was a kind of mixt Government, having fomething of Kingly , and fomething of an Arifiocratical Government. Laonicus Qoalcocondylas makes mention of the like Govern- ment iu Hungary and in England, in Arragon and in Navarr, where the Magiftrates are not created by the King ; nor are any Garrifons impofed on them againft their will, nor any thing commanded them by their King contrary to their Laws andCuftoms. Not much different was the Government of the Romans in the time of their Kings : For al- though almoft all publick affairs were then tranfa&ed by the Regal Power. Romulus, faith Tacitus, governed us as he pleafed. And it is plain, That in the Infancy of their City, all power was in the King, faith Pomponms ; yet even at this very time, were lome few frag- ments of that power referved in the people, if we may give credit to Dionyfius Halicar- najfenfis : but if we had rather believe the Romans, in fome Cafes, Appeals might be made from the King unto the people, as Seneca collects out of Cicero's Books de Rep. as alfo out Of fome Pontifical Books, and Feneftetta. By and by after Servius Tullius being advanced to the Empire, not fo much by Right, as by popular Favour, did much more impair the Majcfty of the Kingdom. For to gratifie the people for their kindnefs, he ordained fome Laws, whereunto the Kings themfelves flood obliged. No marvel then, \iLivy puts this only difference between the power of the firft Confuls and of Kings, that it was but An- nual. The like mixture of Popular and Ariftocratical Power there was in Rome in the Vacancy of their Kings, and in the times of their firft Confuls. For in fome things, and thofe of moment,what ever the people commanded was eftabliflied as a La w,if the Fathers were made the Authors. But as Plutarch obferves, The People had no Right, either to make a Law, or to command any other thing, unlefs propofed by the Authority of the Senate. The like Mixture of Government Chalcocondylas notes to have been in the Com- mon-wealth ofGenoua in his time. But afterwards in Rome , the power of the people increafing, though the Fathers began and propofed, as anciently they were wont to do ; yet as Livy and Dionyfins obferve, the people would decree what they pleafed. But yet even after this, there remained fome of this Mixture, whilft fas the fameZryy fpeaks) the Soveraign Power was in the Patricians, that is, the Senate ; and the Auxiliary power in the Tribunes, i. f.the Plebeians, who had a Right to either forbid or intercede when they pleafed. And of this mixt Government, between Democracy and Ariftocracy, Ifo- crates would have the Common-wealth of Athens to confift in the time of Solon. Now thefe things being premifed, let us examine fome doubtful Queftions which do frequent- ly arife about this matter. The firft thing that falls under difpute, is this, Whether that Nation can be faid to have Sypream Power that is in League with another Nation upon terms unequal ? Where, by Unequal, I do not mean, where the Confederate Nations are of Unequal power ; as when may havethe tne City Thebes made a League with the Per pan Monarch in the time of Pelopidas, or the Supream Romans with the Maffilians, and afterwards with Maffaniffa. Neither do I mean fuch a rower. -.v ( League, Ep. loo. Tacit, t. 3. Vit. Camilli. in;* XXI. A Confede- rate on une- qual terms .N . M * ,i ..V V* Chap. iii. Of the Supreme Tower. 49 League, as implyes fome one tranfient Act that feems difhonourable •, as when an Enemy paying the Charges of the War, or performing fome fuch thing, is reconciled, and be- comes a Confederate. But where by the exprefs Articles of the League there, is fome permanent and lafting Prelation given from one to the other. As when one Nation is bound to maintain the honour of another •, as in that League between the Italians and the Romans, whereby the JfLtolians were bound to ufe, their endeavours, to preferve as well the dignity, as the fafety of the Roman Empire: which dignity is fometimes calied the Alajefty, and by Tacitus , the Reverence of the Empire ; which he thus exprelfeth : Though they are ftparate from us in place, and Itve within their own bounds, yet in their minds Lib. 4, and under ft anding they atl with us. So likewife Floras, As for the reft of the Nations though free, yet perceiving the vaftnefs of their Empire, they did highly reverence the people of Rome, being Conquerors of fo many Nations. Whereunto we may alfo refer fome Rights due to them that undertake the Patronage and defence of others. And thofe Rights, the Mother Cities have over fmaller Cities and Colonies amongft the Gracians. E or fuch Colonies, faith Thucydides, enjoy the fame Right of Liberty as their Mother Cities do: But yet they owe Colonies. a Reverence to their Mother City, and ought to fend her prefents , as an acknowledgement of the honour they have for her. Livy concerning that ancient League of the Romans, who had received all the Rights of Alba, and of that which the Latines derived from Alba, faith, In that League the Roman State was fuperiour. Andronicus Rhodius following Ariftotle , did wellobferve, that in contracting amity between Nations of equal power, It was but reafo- Nic.9.18. ble, that the weaker (hoitld give the greater honour, and the ftronger afford the greater fuccours. J' le , x T ca ^ er Proculm in his Anfwer to this Queltion we very well know, nairftly, That that is a Free ^1,^7 Nation, which is not fubject to the power of another, although it be comprehended in honour , and the League, that that Nation (hall faithfully uphold the Ma jelly of the other. If there- the ftronger fore a Nation bound by fuch a Covenant, do yet remain free, and not fubject to the the greater power of another. It follows, that that Nation doth yet retain its Soveraignty •, the fuccours- like may be faid of a King. For of a free-people, and of a King that is truly fo, there is the fame reafon. Procuhts adds further, that fuch a Claufe is added in the League, to declare, that one Nation is fuperiour to another; and not to declare that the other is not free. By fuperiour, we underftand not in power, f for he had faid before, that a free Nation fhould not be fubject to the power of another ) but in Authority and Dignity : which the words following by a very fit Simile do clearly illuftrate -, For as we know our Some Nat 'ons Clients to be free, though neither in Dignity, nor in Authority, nor in all flight our equals: fo hb^y" 3 1D they that are obliged faithfully to uphold our Majefty, are notwithftanding to be underftood our though not in equals in liberty. Clients are free, though under the defence of their Patrons orAdvo- dignity with cates •, fo is an Inferiour people free,though in League with a people fuperiour unto them others, in. dignity. For they may be under their protection, though not under their jurifdi- ction, as Sylla fpeaks in Appian. An example we have in the Dilimnites, who as Agat bias Ap.Mitkridat. tells us, were doiivofui, Free to live by their own Lawsf though they ferved the Perfian in his Wars. This was thedefign of theEmprefc Irene, fo to divide the Empire among the Sons of her Husband, that the younger Sons fliould be Inferiour to the Eldeft in dignity , but otherwtfe they fliould be Independent and Abfolute in Power. Cicero fpeaking of that Golden Age of ve off. 1. 2. the Roman Empire, faith, Patrocwium Sociorum penes eos effe, non lmperium \ The Romans gave protection to their Friends and Allies, but claimed no dominion over them. With whom u'v. 1. 16. agrees that of Scipio Africanus , The People of Rome had rather oblige their Neighbours unto them by Courtefies, than by Fear ', and to win foreign Nations unto them by Faith and Friendfiip, than to fubject them to an ungrateful bondage. And what Strabo reports of the Lacedemonians, after the arrival of the Romans in Greece, faying, They enjoyed their own Freedom, contributing nothing unto the Romans , but the mutual offices of love and friendflnp. As private Protection takes not away perfonal Liberty, fo neither doth publick take away Protection. Civil, which without Soveraign Power cannot confift. And therefore Livy wifely op- pofeth to be under protection unto, to be under Jurifdiction. Auguftus C&far ( as Jofe- phus relates ) threatned SylUus King of Arabia, that if he abftained not from injuring his neighbours, he would quickly make him, of a Friend, a Subject-, which was the condi- tion of the Kings of Armenia, whobeing under the Roman Jurifdiction, retained only the Title of Kings, but not the Power : As did alfo the Kings of Cyprus and fome ochers, though in name Kings, yet were they Subjects to the Perfian Monarchy, as Diodoms calls them. But here it may be objected what Proculus adds , But fome who belong to our Confe- Lib. \6. derate Cities, are with us found guilty, whom being condemned we may punijh. But thac we Four kinds of may underftand theie words, we muft know, that there are four kinds of differences ?n "j^ that ufually arife among Confederates. As in the firft place, If the Subjects of the King b«ween Con- or State under protection , are faid to have done any thing sgainft the League.- federates. Secondly, If the King or States themfelves are accufed : Thirdly, If the Affbciates that are under the protection of the fame King , do quarrel one with another : Laltly, If Subjects complain of Injuries done them , by thole under whofe Jurifdiction they are- 52 Of the Supreme Tower. BOOK I. If the Controvcifies be of the firft kind, the King or State are obliged either to pu- nifh , or to deliver up the Offender to the perfon injured. And this ought to be done , not only between unequal Confederates , but between equals , even be- tween fuch as are not linked together by any League , as fhall be fhewed anon. Nay farther, He is obliged to endeavour that fatisfaction be made to the injured perfon, which in Rome was called the Recuperators office: For the Law (faith zAUim G alius in Fe- fius) doth determine between King and People, Nations and Foreign Cities, how things by the Recuperator may be refiored, and how they may be received, and how private mens cafes may be profecuted in each Nation. For one of the Confederates can have no right directly to ap- prehend or to punilh the Subjects of the other Confederate •, andtherefore Becim Magim y a Campane , being apprehended and bound by Hannibal, and fo conveyed to Gyrene, and from thence fent to Alexandria ; pleaded, that he was bound by Hannibal, contrary to the Articles of the League, whereupon he was prefentlffet at liberty. As to the fecond kind of Controverfies, One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League, and in cafe of refufal to punifh him •, but neither is this peculiar to a League that is unequal, but may be done in one that is equal : For it is enough to juftifie any man for feeking a revenge againft him that hath wronged him, that he is not fubject unto him, as fhall be proved anon •, wherefore this is alfo in force even among fuch people as are not confederated. The third fort of Controver- fies ai 'e amongft luch as are equally confederated, and thefe are ufually referred to a Dyet or Convention of the Scates alfociatcd, yet not therein concerned : For fo the Greeks, the Latins, and the German's were wont to do, or otherwife referred to Arbiters, or even to the Prince of the League as to a common Arbiter. So in an unequal League it is ufu- ally agreed, that the things in controverfie fhall be difcuft in that Nation which is fupe- rior in the League, wherefore neither doth this argue a fuperiority in power ; for even Kings themfelves refufe not to have their own caufes fometimes tryed before fuch Judges, as even themfelves have conftituted. But of the laft kind of Controverfies, Aflbciates have no right at all to judge ; and therefore when Herod did vehemently accufe his two Sons before Auguftus Cafar for confpiring againft ltis life , they took it as a favour he had done them : Poteras de nobis Supplicium fitmere tuo jure, turn qua pater, turn qua Rex ; Thou mightefi have inflitted what punifliment upon m thou wouUfl by thine own Right, both as that fo they might not re- quire them from our Affociates. In the mean time , it fometimes fo falls out, That if .The weaker he that is fuperior in the League , be much more potent than the reft of the Con- Affociates federates, he may by degrees at length ufurp the Soveraignty over them-, efpecially J" om «' ra « ■"?- if the League be perpetual , and that he hath thereby a right to place Garrifons fu^eaion!!" 6 in any of their ftrong Towns, as the Athenians fometimes did, when they fuffered thcmielves to be appealed unto from their Aflbciates , which by the Lacedemonians ml. 1. 6. was never done: wherefore Ifocrates equals the Government that the Athenians exer- Livy l. 34. ciftd in thofe days over their Aflbciates , with that of Kings and abfolute Princes. So the Latines in Livy complain againft the Romans , that under the fpecious Title of being Aflbciates in War , they were reduced into a mere Subjection -, which So- ciety in Arms , Plutarch in the Life of Aratus , calls a Gentle Slavery. So Fejlus Rn- ffifl. 4. fas in Tacittu , concerning the Rhodians , At firft they lived in great freedom, till after- wards the Romans gently urging them , they were brought by little and little into an habit of Subjection. So the lAitolians likewife complained , That they had nothing left them but the bare fliadow and empty name of Liberty. So likewife afterwards the Achaians complain, That they had indeed a League in appearance , but were at length brought into ■ a Precarious Servitude. The like complaint Civilts Batavus in Tacitus , makes againft the fame Romans , That they ufed them not as formerly , like Companions , but ufurped and infulted over them as mere Slaves. And in "another place , they falfely called that peace , which was indeed but a miferable Slavery. Thus Eumenes alfo in Livy , concerning the Confederates of the Rhodians , that they were their Aflbciates in Name , but their Vaflals indeed. Thus alfo Magnet es in Polybhts faith , That Deme- trias was in (hew free , but in effect all things were done there at the will of the Romans. The Theffalians likewife were in appearance free , but indeed under the dominion of the Macedonians , as the fame Polybius tcftifies. Now when thefe things are done , and fo done as by patient endurance they may by miftake be laid to be rightly done , ( whereof we fhall elfewhere difcourfe more fully •, ) then either of Companions they are made Subjects , or certainly there muft be a partition of the Supremacy, which (as I have faid before) may fometimes happen. They that pay any thing either in latisfaction of wrongs paft , or to be protect- wn ed againft injuries to come, are by Thucydides called tributary Aflbciates, fuch were offuchas'pay the Kings of the Hebrews , and of their Neighbour Nations after the time of M. An- Tribute. thon\ , free ; though under a certain tribute : Nor do I fee any caufe to doubt but that they that Reigned fo , had Supreme Power within their refpective Dominions , and had a full right to punilh delinquents , according to their own Laws. Thus M. Anthony defends King Herod , being accufed for murthering Anftobulus , That it was neither juft nor right to call a King to an account for what he doth as a King; for if fo , he could not be a King : For common equity requires that they that gave him that honour , jhould permit him the free ufe of that Saver aign Power , which was appendeht unto it. So Chryfoftom , When the Empire of the Jews began to decline , and they made Tri- butaries to the Romans •, They neither enjoyed that full liberty which they did formerly j nor were they in that pure fubjettion as now they are : But were indeed honoured with the Title of Affociates , yet they paid Tribute to their Kings , and received Governors from them. Moreover , they had the free ufe of their own Laws , fo that if any of their Coun- trymen offended , they themfelves puni(lied them by their own Laws. And yet I deny not but even this very acknowledgment of their own wcaknefs and infufficiency , doth fomewhat abate and detract from the Majefty of their Empire. But that which feems to fome to be more difficultly to be anfwered , is, when XXUI. one Prince holds his Dominion from another, as being Lord of the Fief-, which yet of fuch as may be fufficiently anfwered Uy what hath been faid before. For in this Contract hoH their do- ( which is peculiar to the German Nation , and no where found but where they have " lln ' ons m planted themfelves) two things are efpecially to be obferved. 1. The perfonnl Ob- cu H 2 ligation. j 2 Of the Supreme Tower. BOOK I, . ligation. 2. The Right in the Thing fo held. The Perfonal Obligation is the fame , whether a man poffefleth the very Right of Soveraignty , or any thing elfe though lying elfewhere , by vertue of the Fief -.but luch an Obligation as it take* not from a private man the right of Perfonal Liberty ^ fo neither doth it diminifo any thing in a King or State of the Soveraignty , which is Civil Liberty \ which is eafily to be underftood by thofe Lands which are called Free-holds , which confift in Perfonal Obligations only , but gives no right in the thing fo held : for thefe are no other than a fpecies of that unequal League whereof we have* dilcourfed before , wherein the one promifeth Fealty , and the other fafeguard or protection. But admit they do fwear Faith and Allegiance againft all men , yet would this de- tract nothing from the Right of Soveraignty over their own Subjects. Not at ail in this place to mention , that there are ever referved in thefe Oaths , a tacite Condition that the War be juft , whereof we fhall treat elfewhere. But as to the Right in the thihg fo held , it may be fuch , that the very Right of Governing , if held in the right of the Fief or Fee, may be loft, and fo return unto him that gave , it •, as well in cafe the Family be extinct , as alfo for fome notorious crimes j and yet notwithftanding in the mean time , it ceafeth not to be the Supreme Power : For as I faid before the thing it felf is one thing , and the manner of holding it is another. And by this Right I find many Kings conftituted by the Romans , fo that the Royal Family failing, the Empire did efcheat unto themfelves, as Strabo obferves Lt ' I2, of Papbltgonia and fome others. XXIV\ Laftly , We muft alfo diftinguifh as in Private Dominion, fo in Empire, between A mans right the Right it felf, and the exercife of that Right-, or between the firft act and the difKnguifht fecond. For as a King ( though an Infant ) hath a Right to govern , but is not crchVof that P ermitted t0 exercife that Right ; fo he that is mad, or a Prifoner , or that fo right. Iives m a Foreign Country , that he is not permitted freely to act in fuch matters, VidtBo.$.cb. as concern the good of that Empire that is remote from him : For in all fuch cafes, 20. §.3. they have their Lieutenants or Viceroys to act for them-, wherefore Demetrius living under reftraint with Seleucus , did forbid any credit to be given to his Letters or Pint. Dmttr. unto his Seal ; but commanded that all things fhould be fo governed as if he were dead. CHAP. Chap. iv. War by Inferiors againft their Superiors unlawful. 5 } I CHAP. IV. Of a War made by Subjetts againft their Superiors. I. The Queftion ft ated. XII. Or frail forfeit his Kingdom by a Wil- li. War againft Superiors, as fuch, ordinarily fub breach of that condition upon which he unlawful: 7 his proved by the Law of Nature. was admitted unto the Empire. III. By the Hebrew Law. XIII. Or, if having but one part of the I V. By the Gofpel Law ; proved by S'cri- Supreme Power , he (hall invade the o- ptures. ther. V. By the Pratlice of the Primitive Chriftians. XIV. Or if any fitch liberty of refinance be, VI. For ^Inferior Magiftrates to make War in fach a cafe , referved unto the people at againft the Supreme, unlawful : Proved by his admijfwn. Reafons and Scriptures. - X V. How far forth Obedience is due to him VII. What is to be done in a cafe of ex- that ufurps another mans dominions, treme and inevitable Necejfity. XVI. An Vfurper may be killed, the War VIII. That a free People may make War continuing ; If no Faith nor Agreement be againft their Prince ,' if he be accountable given or made to the contrary, unto them. X V 1 1. Or if Licence be given by an Ante- I X. And againft a King who hath renounced cedent Law. his Kingdom. X V 1 1 1. Or by warrant from him , who hath X. Or who is about to alienate it , as to the Right to the Empire, delivery of it, only. XIX. Why an Vfurper is not to be killed, but X I. Or if a King do manifeftly carry himfelf in theft cafes. as a profeffed enemy againft the whole Body XX. In a controverted Right , Private men of his people. are not to be Judges. PRivate Men may without 'rfoUbt make war againft private men, as the Traveller I. againft the Thief or Robber •, fo may Soveraign Princes and States againft So- The quefUori veraign Princes, as David againft the King of the Ammonites : Private men ftaced ' may make war againft Princes, if not their own, as Abraham againft the King of Babylon and his Neighbours ■, fo may Soveraign Princes againft Private Men, whether they be their own Subjects , as David againft IJhbojheth and his party •, or Strangers, as the Romans againft Pyrates. The only doubt is, whether any peribn or perfons, publkk or private, can make a lawful war againft thofe that are fet over them , whether as fu- preine or as fubordinate unto them. And in the firft place, It is on all hands granted, That they that are commiflionated by the higheft powers, may make war againft their Inferiors-, as Nehemiah did againft Tobia and Sanballat, by the Authority of Artaxerxcs. But whether it be lawful for Subjects to make war againft thofe who have the Supreme Power over them, or againft fuch as act by and according to their Authority, is the thing in queftion. It is alfo by all good men acknowledged, That if the Commands of a Prince fhall manifeftly contradict either the Law of Nature, or the Divine Precepts, they are not to be obeyed ; for the Apoftles when they urged that Maxim, Deo magis quam bominibus obediendum,That God is rather to be obeyed than man ; unto fuch as forbad them **' to Preach in the name of Jefui, did but appeal to a Principle of right reafon, which Na- ture had infculpt in every mans breaft , and which Plato exprefTeth in almoft the very fame words. But yet if either for this, or for any other caufe , any injury be offered unto us, becaufe it fo pleafe him that hath the Soveraign Power, it ought rather to be patiently tolerated, than by force refilled : For although we do not owe an relive obedience to fuch Commands of Princes, yet we do owe a pajfive : though we ought not to violate* the laws of God or of Nature, to fulfil the will of the greateft Monarch ; yet ought we rather patiently to fubmit to whatfoever he fnall infliii upon w for not obeying, than by refinance to violate our Coun- tries peace : The beft and fifeft courfe we can fteer in fuch a cafe, is either by Flight to prefcrve ourfelves, or refolvedly to undergo whatfoever (hall be impofed on us. And naturally all' men have a right to repel Injuries from themfelves by refilling them, \\. (as we have already faid.) But Civil Societies being once inftituted for the prcfervation of War againft Peace, there prefently fucceeded unto that Common-wealth a certain greater Right over Superiors at us and ours, fo far forth as was neceffary for that end : And. therefore that promifcuons uc 1>un * w u '* Right that Nature gave us to refift the Common-wealth , for the maintaining of gocd order and the publick peace hath a right to prohibit, which without all doubt it doth, feeing that otherwife it cannot obtain the end it propofeth to it felf. For in cafe tl at promifcucus- 54 War by Inferiors agalnjl their Superiors, unlawful. BOOK I. Sen. promifcuous Right of forceable refinance fhould be tolerated, it would be no longer a Common-wealth, that is, a Sanctuary againft Oppreffion, but a confufed Rabble, fuch as that of the Cyclops, whereof the Poet thus : -Where every Afs An Officer linking mud not be (truck again. III. Theunlawful- nefs of ma- king war a- gainft our Su- periors pro- ved by the Jewifh Law. jof. i. 1 8. j Sam. 8. ii. Deut. 17. 14. Right differ- enced from Juft. May on his Wife and Children Judgment pafs. A diffolute Company where all are fpeakers and no hearers : Like unto that which Valerius re- cordsof the Bcbricii — % • — Who all Leagues and Laws difdain, And Juft ice, which mens minds in peace retain. Salufi makes mention of a wild and favage people , living like Beafts in Woods and Mountains without Laws and without Government, whom he calls Aborigines: And in another place of the Getuli, who had neither Laws, good Cufloms, nor any Prince's to govern thim. But Cities cannot fubfift without thefe, Generate pactum efi focietatis human* reoibns obedire ; All humane Societies, faith St. Auguftine, unanimeufy agree in this, to obey Kings: So jEtchylus, Kings live by their own Laws, fubjeft to none. And Sophocles, They Princes are, obey we mufi , what not f To the fame Tune fings Euripides, Foil/ in Kings twift be with patience born. Whereunto agrees that of Tacitus, Principi fummum rerum arbitrium Dii dedermt,&c. Suh- ditis obfequii gloria relitla efi ', God hath invefied a Prince with Soveraign Power, leaving nothing to Subje&s but the glory of Obedience. And here alio, Things bafe feem Noble, when by Princes done ; What they Impofe, bear thou, be 1 t right or wrong. • Wherewith agrees that of Salufi, Impune quid vis facere, hoc efi Kegem ejfe, To do anything without fear of punifhment, is peculiar to Kingj ; for as M-irl^ Anthony urged in Herod\ cafe, Jf he were accountable for what he hath done as a King, he could not be a King. Hence it is, that the Majefty of fuch as have Soveraign Power, whether in one or more, is fenced with lb many and fo fevere Laws, and the licentioufnefs of Subjects reftrained with fuch fharp and exquifite torments ; which were unreafonablc, if to refill them were lawful. If a Souldier relift his Captain that ftrikes him, and but lay hold on his Partifan, he fhall be cafhiered •, but if he either break it , or oner to Itrike again, he fhall be put to death : for as Arifiotle obferves, If he that is an Officer firikf, he fliall not be firuck^ again. By the Hebrew Law, He that behaved himfelf contumacioufly againft either the High- Prieft, or againft him who was extraordinarily by God ordained to govern his people, was to be put to death ; and that which in the eighth Chapter of the firft Book of Samuel, is fpofcen of the right of Kings, to him that throughly infpeds it, is neither to be under- ftood of their true and juft rights, that is, of what they may do juftly and honeftly (for the duty of Kings is much otherwife defcribed, Deut.S. 11.) nor is it to be vinderftood barely, £>f what lie Will do : for then it had fignified nothing that was lingular or extraor- dinary, for private men do the fame to private men : But it is to be underftood of fuch a fad, as ulurps or carries with it the priviledge of what is right, that is, that it muft not be relifted although it be not right ■, for Kings have a Right peculiar to themfelves, and what in others is punifliable, in them is not. That old Saying, Simmum jus, ftmma injuria, Extreme right is extreme wrong, isbeft fitted to the cafe of Kings, whole abfo- lute power makes that feem right, which ftridly taken is not fo. There is a main diffe- rence between Right in this fence taken, and Juft - , for in the former fence, it comprehends whatfoever may be done without fear oOpumihment : but Juft, refpeds only things law- ful and honeft. And though fome Kings there be, who are (what Strvitu in Cicero s Thi- Uppichs is commanded to be) magis JuftitU quam Juris Gmjulti, More regardful of their honour and duty, than Of their power and prerogatives: Yet this doth not diminifh their Soveraign Righf, becaufe if they will, they may do othgrwife without the danger of Chap. iv. War of SubjeBs aga'mft their Superiors unlawful. 5 5 of being refitted. And therefore it is added in that place of Samuel before cited, That when the people fiiould at any time be thus oppreffed by their Kings, as if there were no remedy to be expected from men, they fhould invoke his help who is the Supream Judge of the whole Earth. So thatwhatfoevera King doth, though the fame done by an inferiour perfon would be an Injury, yet being done by him is Right. As a Judge is faid Jus re ddere, to do right, though the fentence he gives be unrighteous. When Chrift in the New Teftament commanded, to give Ctfar his due, doubtlefs he i\/. intended, that his Difciples fhould yield as great, if not a greater obedience, as well EytheGofpd active as paffive, unto the higher Power, than what was due from the Jews to their Law « Kings: which ( St. PW, who was belt able to Interpret his Matters words) expounding Rom. 13. doth at large defcribethe duty of Subjects •, charging thofe that refill the power R° m - '?• - of Kings, with no lefs Crime than Rebellion againft Gods. Ordinance ; and with a Judgement as great as their fin. For faith he, They that do fo refift, fhall receive unto themselves dam- nation. And a little after, he urgeth the neceflity of our fubjection, Not altogether for fear, but for Conference, as knowing, that He is the Minifler of God for our good. Now if there be a neceflity of our fubjection, then there is the fame neceflity for our not refill- ing-, becaufe, h« that refills is not fubject. Neither did the Apoftle mean fiich aneceffity of fubjectio:i as arifeth from anapprehenfion of fome worfe inconvenience that might follow upon our refiflance : But fuch as proceeds from the fenfe of fome benefit that we receive by it, whereby we Hand obliged in duty, not unto man only, but unto God -, ( fo that he that refits the power of the Supream Magiflrate, incurs a double puniflwient, faith Plato, Firfi, From God, for breaking th.it good order which he hath confiituted amongfl men : and Secondly, From the Common-wealth, whofe righteous Laws, made for the preservation of the pub- lick^pcace, are by refiflance weakned, and the Common-wealth thereby endangered. For canfi thou believe, faith Plato, that any City or Kingdom can long ft and, when the publick^Decrees sf the Senate Jhall be wilfully broken, and trampled upon by the over-fwelling power of fome private men ; who inftrugling againft the execution of the Laws, do as much as in them lyes, diffolve the Common-wealth, and c onfe que ntly bring all into confufion. The Apoftle therefore fortifies this neceflity of publick fubjection to Princes with two main Reafons : Firft, Becaufe God had confiituted and approved of this Order of Commanding and Obeying ; and that not only under the Jewiftj, but under the CbriflianLaw : wherefore the Powers that are fet over us are to be obferved ( not fervilely, fuperftitioufly or out of fear, but with free, rational and generous Spirits) tanquam a Diis data, as being given by the Gods, faith Plato : or as St. Paul ) tanquam a Deo ordinate, as if ordained by God himfelf. Which order, as it is originally Gods, fo by giving it a Civil Sanction, it becomes ours alio •, for thereby we add as much authority unto it as we can give. The other reafon is drawn ab utili, from profit : Becaufe this order is confiituted for our good , and therefore in Conicience is *• to be obeyed and not refilled. But here fome men may fay, That to bear Injuries, is not at all profitable unto us, wherennto fome men ( haply more truly, than appofitely, to the meaning of the Apoftle) give thisanfwer, That patiently to bear Injuries, conduceth much to our benefit ■, becaufe it entitles us to a reward far tranfeendingourfufferings, as St. /Wteftifies. But though this alfo be true, yet is it not ( as I conceive ) the proper and genuine fenfe of the Apoftles words, which doubtlefs have refpect to that univerfal Good, whereunto this order was at firft inflituted , as to its proper end •, which was the publick Peace, wherein every particular man, is as much concerned, if not much more than in his private. (For what protection can good Laws give, if Subjects may refufe to yield their obedience to them^ whereas by the conftanr. obfervance of good Laws, alleftates, both publick and private do grow up and flourifh together.) And plata - certainly thefe are the good Fruits that we receive from the Supream Powers, for which in Confcieuce we owe them obedience. For no man did ever yetwifhill to himfelf. (But he that refills the power of the Magiftrate, and wilfully violates the Laws eftablifhed, doth in effect (as far as in him is) diffolve his Countreys peace, and will in the end P^ te - bury himfelf alfo in the ruines of it. ) Befides, the Glory of Kings confifts in the pro- fperity of their Subjects. When Sylla had by his Cruelty, almoft depopulated, not Rome Tint. only, but all Italy, one feafonably aamonifht him, Sinendos effe aliquos vivere, ut effent, F/orits. quibus imperet ; That fome ftiould be permitted to live, over whom he might rule as a King. Aug. diCtv. It was a common Proverb among the Hebrews, Nifipoteftas publica ellet, alter alterum ^"' 8t ; * 3 ' vivum deglutiret ', Were it not for the Soveraign Powers, every Kingdom would be like a great Pond wherein the greater Fiji) would alwayes devour the leffer. Agreeable whereunto is that of Chryfoftome, "Onlefs there were a power over us to refirain our Inordinate Lufls, men would he more fierce and cruel than Lyons and Tygers, not only biting , but eating and devouring one Another. Take away Tribunals ofjufticc, and you take away all Right , Property and Domi- nion : No mar, can f.ty, this it mine Houfe, this my Land, thefe my Goods, or my Servants : but chryf. dt Stfr Omnia erunc fortiorum, the longefl Sword would take all. The mighty man could be no tuts 6. longer fecure of hisEftate, than until a mfghtier than he came to difpoflefs him-, the AiE P h - 9-1 ! v, ea! *?• gentle, but aifo to thefroward : For this is Thankworthy if a man for Confidence towards God endure grief, fuffering wrongfully. For what glory is it, ifwhenye be buffettedfor your faults ye take it patiently t But if when ye do well, and fiufter for it, ye take it patient ly t this is acceptable with God. And this he by and by confirms by Chrifts own example. Which Clemens alfo in his Conftitutions thus exprefleth, The fervant that fear eth God, faith he, will ferve his Mafier alfo with all faithfulnefs, yea, though he be impious and unjuft. Whence we may obferve two things : Firft, That under the fubjection that fervants are in, even to hard Matters, is alfo couched that of Subjefts unto Kings, though Tyrannical. And there- fore, as a little before, he commanded fubjection to every humane ordinance ; that is, to the Laws and Conftitutions of Princes without diftinction, (for when that Epiftle was written, there were very few Princes that were not Idolaters,) yet fubmit we muft, faith St. Peter, for ail that, and that Propter Domitmni, For the Lords f.ike. So what fol- lows in the fame Chapter being built upon the fame Foundation, refpects the duty as well of Subjects as of Servants. And fo requires the fame Obedience, as well Paffive as Active •, Such as we ufually pay to our Parents, according to that of the Poet, Thy Parents Love if Good : If Bad, yet bear. ] • And that alfo of Terence, To bear with Parents, Piety commands. And that likcwile of Cicero, in his Oration for Cluentim, Men ought not only to conceal the Injuries done unto them by their Parents, but to bear them with patience. A young man of Eretria , that had been long educated under Zeno, being demanded, What he had learned? Anfwered, Meekly to bear his Fathers wrath. So Juftin relates of Lyfimachits, ub\ti. That he endured the reiroaches of the King with the fame calmnefs of Spirit, as if he had been his Lib. 27 .' Father. Ferenda funt Renum Ingenia , The humours of Kings muft be endured, iaith Ta citus : And in another place he tells us, That good Emperours are to be wifliedfor, but what- ^*w. i& foever they are, they muft be obeyed. So alfo Livy, As the rage of our Parents, fo the cruelty '^' of ourCountrey are noways to be becalmed, but by patience and fufferance : For which Clau- dian highly extols the Perfuns, who obeyed all their Kings equally, though never fo cruel. Neither did the Practice of the Primitive Chriftians fwerve from this Law of God, V. which is an undeniable argument that they fo underftood it. For though the Roman T f h< j P raft . lce . Emperours were fometimes the very worftof men, and deadly enemies to the Cbriflian uveChrifti-'" Faith ; yea, though there wanted not fuch under their Government, who under the fpe- ans. cious pretence of freeing the Common-wealth from Tyranny and Oppreflion, took Arms againft them, yet could they never perfwadethe Chriftians to joyn with them. In the Conftitutions of Clemens we read, Regis pote/lati reftftere nefas ; To refift the power of a King is Impious. Tertullian in his Apology writes thus, What was that C?ffms that con- ffired againft the life of 'Julius C^far? What was that Pofcennius Niger that in love to his own Countrey, took^Armsin Syria, as Clodius Albinus did in France and Britain, againft that bloody Emperour Septimius Severus ? Or what was that Plautianus, who tofct the Common wealth free from Tyranny attempted the life of the fame Emperour in his own Pallace i What was that .■Elius Lstus, who having firft poyfioned that Infamous Emperour Commodus, fearing it jhould not take that effect which he dc fired, did afterwards hire Narciflus, aftrotrg Wreftler, to (Irangle him? Or what was that Parthenius (whofe fact Tertullhn doth fo much det eft,) who being Chamberlain to that execrable Tyrant Domitian, yet killed him in his own Chamher i What {faith Tertullian) were all thefe ? Surely not Chriftians, but Romans : Nay fo abominated they were by Chriftians, that Tertullian feems to glory in th'iSj That though Chriftians were every where reproached as Enemies, nay Traytors to the Imperial Crown, yet could they never find any of them either ftained with that crime, or fo much as favouring thofe Treafonable practices of 1 either ^8 Jnferiour Magiftrates ought not torejifl the Supreme. BOOK I. either Caffiiis, Niger, or Albinius. When St. Ambrose was commanded by the limpe- SecGratian rour Valentimis to give up h s Church to be Garrifon'd by Souldiers, though he took it to .-. zz. q. 8. bean Injury done, not only to htmfelf, and to his Congregation, but even unto Chrift bimfelfi yet would be net take any advantage of the commotions that it made among the people, to make refiftancc. If the Emperour, faith he, had commanded what was in my tower to the, toe re it '-mine Houfc, Land, Goods, Gold or Silver, how readily flwtld I obey ; whatfoever is mine I would willingly offer : But the Temple of God I cannot give away , nor can] yield it up to aiy man: Cum ad cuft'odiendum non ad tradendum lllud accepenm, Since it was committed unto me to defend and to keep, but not to betray. And whereas the peo- ple be in?, enraged thereby, did offer their affiftance to repel the Souldiers, he-refufed it , Lib. e,. or a. in laying, Cijf&M rtpugnare non r,ovi; Though provoked and compelled thereunto, yetwithftandor A:xk. y e i camot . Grieve, and weep, and mourn I can : Againfi Arms, Souldiers, and Goths, 1 have no other Weapons but Tears : For thefe are the only Forts and Muniments of a Prieft : Aliter necdebeonccpciTum reTlfteje, otherwife I neither ought, nor can rcfift. And pre- fently after, being commanded to appeafe the Tumult, he replyed, That not to excite them was in his power % but being exasperated and enraged, to appeafe them was in the folc power ef him , who when he pleafed, could ftill the r agings of the Seas, and the madnefs of the people, r?'j-33- Aria 1 in another place he writes thus, Will ye hale me to prifon, or cafl me into chains , I am willing tof.ffcr, neither fi all 1 guard my fc If with multitudes of people who offer them f elves to defend me. Neither would he makeuie of the Forces of Maximm when offered againfl: the Empcrour, though an Arim, and a grievous perfecutor of the Church. In imitati- Gng.!.6.r.p.i. on °f *h°m? Gregory the Great in one of his Epiftles confeffeth, That if he would have The'idortt.HijI. engaged bimfelf in the death of the Lumbards, that Nation had at that day had neither King, Eecl.lib.$.e.^. Dukes nor Earls ; but had been reduced into extreme confufmn. Naz.ianz.en informs US, That n^.orjt.i. juiiwxhz Apoftate was diverted from fome bloody dcligns he intended againfl; the n Julian, church, by the tears of Chnltians: Adding "withal. That thefe are our beft prefervatives againfi Perfecutions. And becaufe a great part of his Army were Chriftians, therefore his cruelty towards them would have been not injurious to the Church of Chrift: only, but would at that time have much endangered the Commonwealth: Unto all which we may alio add that of St. Auguftine, where expounding thofe places of Sc. Paul, he faith Trop. 74. Even for the prefervation of our own lives, we ought to fubmit to the Supreme power, and not to reftft them, tn whatfoever they f: all take away from us. V I. Some very learned men there are even in this age, who accomodating themfelves too Inferiour Ma- fcrvilely to the times and places wherein they live, do perfwade themfelves firft, and giuratesaughc t ^ Qa others, That though this Licence of redding the Supreme Power be inconfiftent with die Supreme. the condition of private men, yet it may agree with the Rights of Inferiour Magiftrates •, nay further, that they fin in cafe they do it not : which opinion is to be exploded, as Se- ditious. For as in Logick there is a Genus which is called Subalterne, which though it be comprehenfive of all that is under it, as a living creature comprehends both man and boaft ; yet hath it a Genus above it, in refpedt whereof it is but a fpecies: As a living creature is to a body, which comprehends all forts of bodies, both animate, and inanimate. The like we may fay of Magiftrates, fome are Supreme, who rule all and arc ruled by none ; others are fubordinate, who in refpectof private men are publick perfons, governing like Princes : But in refpect of the Supreme Magiftrate are but pri- vate men, and are commanded as Subjects. For the power or faculty of Governing as it is derived from the fupreme power, fo it is fubject unto it, and whatfoever is done, by the Inferiour Magiftrate, contrary to the will of the Snpreme is null, and reputed but as a private act, for want of the ftamp of publick Authority. All order ( fay Philofo- phcrs ) doth neccfTarily relate to fomewhat, that is firft and higheft, (from whence it takes its rife, or beginning. Now they that are of this opinion, that Inferiour MagK- ftrates may refill the Supreme, feem to introduce fuch a ftate of things, as the Poets fan- fied to have been in Heaven before Majefty wasthought on, when the Jefler Godsdeny- ed the Prerogative of Jupiter. But this order or Subordination of one to another is net only approved of by common experience, as in every Family the Father is the head, next unto him the Mother, then the Children, and after them the Servants, and fuch as are under them: So in every Kingdom, Each power under higher powers are- And All Governours are under Government- To which purpofe is that notable faying of Grit. c. \i. St. A'ignftine, Obfcrve, faith he, the degrees of all humane things: if thy Tutor eninyn thee ^n? f -^' i! anything, that muft do it ; yet not, in cafe the Proconful command the contrary: Neither mult thou obey the Confif-if thy Prince command otherwife. For info doing thou canft not be faid to contemn Authority, but than chuff to obey that which is higheft : Neither euvht the leffer pow- ers to be offended that the greater u preferred before them, (ForGodis theGod of order. ) And Aijoban. that alio ofthe fame Father concerning Pi'top, B:caufe, faith he, God had'lnvefted him with fuch a Power as was it felf fubordinate to that of CslarV. But it is alfo approved of bv Divine lEp. 2.-1. Authority: For St. Peter enjoyus us to be fubject unto Kings otherwife, than unto Ma- giftrates : To Kings as Supreme, that is, abfolutely, without exceptions to any other com- Ghap. iv. Of 1(epjiance in cafes of inevitable Danger. 50 commands than thofe directly from God ; who is fo far from juftifying our refiifonce, that he commands our paffive obedience: But unto Magiftrates, as the) are deputed- by Kings, and as they derive their Authority from them. And when Sk /vw/ fubjecf.se. ve Rom 13. ry foul to the higher Powers, doubtlefs he exempts not Infericur Magiftrates. N.it:;.. do wefind amongftthe Hebrews (where there were fo many Kings utterly regardleis of the Laws both of God and Men) any fiferiour Magiftrates, among whom fome without all queftion there were bth Pious and Valiant, that ever arrogated unto themfel yes this Right of refitting by force the Power of their Kings.without an exprefs command from God, who alone hath an unlimited power and jurifdiction over them. But on tne contrary, wrat duties Inferiour Magiftrates owe unto their Kings though wi.ked, Samuel wiii Infcru.t us by his own example, who though he knew th<:t Said had corrupted himfelf, and that t Stm.i<.i- God alfo had rejected him from being King, yet before the people, and before the Ei- ders of Jfrad, hegives him that reverence and refpect that was due unto him. And fo likewife the irate of Religion public kly profeft, did never depend upon any other hu- mane Authority, but on that ofthe King and Sanhednm. For in that after the King, the Magiftrates with the people, engaged themfelvesto the true woifhip and feivice of Cod, it ought to be underftood, fo far forth as it fnould be in the power of every one of them. Nay, the very Images of their Falfc Gods which were publickly erected, (and therefore could not but be fcandaluus to fuchas were truly Religious) yet were they never demo- lifhcd, fo far as we can read of, but at thefpeeial command eitlierof the people, when the Government was Popular-, or of Kings when the Government was Kingly. And if the Scriptures do make mention of any violence fometimes offered unto K.ngs, it is not to juftifie the fact, but to mew the equity of the Divine Providence in permitting it.". And whereas they of the contrary perfwalion do frequently urge that ex client laying of Trajan the Emperour, who delivering a Sword to a Captain of the Pr&torian Band, laid, Hoc pro me utere, [treble impero; fi male, contra me: ZJfe this Sword for me, if I govern well; but if otherwife, againji me. We mult know, That Trajan (as appears by Pliny % .Panegyrick) was not willing to afiume unto himfelf Regal power, but rather to behave himfelf as a good Prince, who was willing to fubmit to the Judgement of the Senate and people, whofe decrees he would have that Captain to execute, though it wereagainit himfelf. Whofe example both Pertinax and Macriniu did afterwards io.iow, whofe ex- cellent Speeches to this purpofe are recorded by Herodian. The like we read of M. Antho- ny, whorefufed to touch the publickTreafure, without the confent of the Roman Senate. But the Cafe will yet be more difficult, whether this law of not refuting do oblige us VII. when the dangers that threaten us be extreme, and otherwife inevitable. For fome of the Of refinance Laws of God himfelf, though they found absolutely, yet feem to admit of fome tacite ex- in ."feof in. ceptio- s in cafes of extreme necelfity : For fo it was, by the wifeft of the JeWiJh Doctors, ev!tab,e nc - exprefly determ.med concerning the Law of their Sabbath, in the times of the Haftmenx- ce Ky " ans: Whence arofe that famous faying among them, Pericidum animaimpellitSabbatum, The danger of a mans life drives away the Sabbath. When the Jew ill Synefius, wasaccufed for the breach of the S.ibbath, heexcufeth himfelf by another Law, and that more forci- ble, faying, We were in manifefi jeopardy of our lives. When Bacchides had brought the Army of the Jews into a great ftrait oa their Sabbath day, placing his Army before them and behind them, the River Jordan being on both fides ; Jonathan thus befpake his Soul- diers, Let w. go up now and fght for cur lives, for it Jiandcth not with in to day, as in times pajr. l Macc - 9 Ah Which cafe of necelfity is approved of even by Chrift himfelf, as well in this Law of the 44>45- Sabbath, as in that of not eating the Shew bread. And the Hebrew Doctors pretei.ding the authority of an Ancient Tradition, do rightly Interpret their Laws made againlt the eating of meats forbidden, with this tacite exception ; Not that it was not juft with Gcd to have obliged us even unto death, but that fome Laws of his are converfant about fuch matters as it cannot ealily be believed that they were intended to have been profecuted withfo much Rigour as to reduce us to fuch an extremity, as to dye rather than todifobey them, which in humane Laws doth yet further proceed. I deny not but that fome acts of vertueare foftriitly enjoined, that if we perform them not, we may juftly be put to death : As for a Sentinel to foriake his ftation. But neither is this to be rafhly underftood to be the Will of the Law-giver. Nor do men affume fo much Right over either themfelves or others, unlefs it be when,and fo far forth, as extreme necelfity requires it. For all humane Laws are fo conftituted, or fo to be underftood as that there thould be fome allowance for humane frailty. The right underftanding of this Law, of reiifting or not refilling the higheft .£$ Powers in cafes of inevitable necelfity, feems much to depend upon the Intention of thofc whofirft entred into Civil Society, from whom the right of Government is devolved up- on the perfons Governing : Who had they been demanded, Whether they would have ,_ impofed fuch a yoke upon all Mankind as death it felf , rather than in any cafe by force to repel the Infolencies of their Superiours •, I much queftion, whether they would have granted itymlefs it had heen in fuch a cafe,where fuch refiftance could not be made without I 2 grca« Of { l\cfijlancc in cafes of inevitable Danger. BOOK I. great commotions in theCommon-wcaith, or the certain deftruetion of many Innocents', tor what Charity commends in fueh a cafe to be done, may , I doubt not, pals for an humane Law. but fome may fay, that this rigid obi gation to dye, rather than at any time to refill Usuries done by our Superiors , is not impbfed on us by any humane, but by the Divine Law. But we mult obterve, That men aid not at fir ft unite themftlves in Civil Society, by'any fpecial Command from God, but voluntarily out of a fence they had of their own impotency, to repel force and violence whil!fc they lived iblitariiy, and in Families apart; whence the Civil Power takes its rife: For which caule it is, thac St. Piter calls it an humane ordinance , although it be clfe- where called a Divine Ordinance, becaufe this wholefom coTritution of men was approved of by Cod him- Iclf. but Gcdin approving an humane Law, may be thought to approve of it as an hu- L'b B cltr mane ^ nw ' ?,n ^ atccr an numane rranner. Berkley (who was the {touted Champion in Mwtr'cbamacb. defending Kingly Power) dcth notwithstanding thus far ailow, That the People or the t.2. nobler rart of them , have aright to defend themfeWes againlt cruel Tyranny, and yet he confefleth that the whole body of the people is fubject unto the King. Now this 1 (hall eniily admit, That the more we defire to fecure any thing by Law, the more expreis and peremptory lhould that Law be, and the fewer exceptions there (hculd be from it ; (for they that haven mm J to violate that Law, will prefently feck (belter, and think themfelves priviledged by thole except ions, though their cafes be far different ;) Yet dare 1 net condemn indifferently either every private man, or every, though iefier, pare of the people, who as tl cir lait refuge, in cafes of extreme neceflity, have anciently made ufe ol their Arms to defend themfelves, yet with refpedt had to the common good. David's ex- I'orDavil, who (laving m feme particular Facts) was fo celebrated for his integrity, ample. jjjj ^. e( . cnte rtair» firft four hundred, and after wards more armed men-, to what end, unlets for the fereguard of his own perfon, againlt any violence that lhould be offered • him? But this alio we mud note, That David did not this until he had been allured, both by Jonathan, and by many ether infallible Arguments, that Said fought his life ; and that even then, he neither invaded any City, nor made an OfTeniive War againlt any, but linked omy for his own fecurity, fometimes in Mountains, fometimes in Caves, and fuch like devious places, and fometimes in Foreign Nations, with this refolution, to decline all occafions of annoying his own Countrymen. A Fact parallel to this of Davids, we The diacca- ma y rea( j jr j n t ^ e M aua y ees ■ For whereas fome feek to defend the Wars of the Macca- bees upon this ground, That Antiochus was not a King, but an Ufurper •, this I account but frivolous : For in the whole Story of the Maccabees, we fhall never find Antiochus mention- ed by any of their own party, by any other Title than by that of King •, and defervedly : For the. Hebrews had long before iubmitted to the Macedonian Empire, in whofe Right Aaticchtu fucceeded. And whereas the Hebrew Laws forbad a Stranger to be fet over them , this was to be underftood by a voluntary Flection, and not by an involuntary Compullion, through the neceflity of the times. And whereas others fay, That the, Mac- cabees did act by the peoples right, to whom belonged the Right of Governing themfelves by their own Laws, neither is this probable: For the Jews beii g hrft conquered by Ne- buchadotiojor, were by the right of War fubject unto him , and afterwards became by the lame Law, fubject: to the Modes and Perfw.ns as Succefl'ors to the Chaldeans, whofe whole Empire did at length devolve upon the Macedonians. And hence it is, that the Jews, in Ta- citus, are termed The mofl fervile of all the Eaftern Nations \ neither did they require any Covenants or Conditions from Alexander or his Succeflbrs, but yielded themfelves freely- The Jem a without any limitations or exceptions, as before they had done unto Darius. And though conquered t ] ie y Were permitted fometimes to ufe their own rites, and publickly to exercife their own Nation. Law?, yet was not this due unto them by any Law that was added unto the Empire, but oniy by a precarious Right , that was indulged unto them by the favour of their Kings. There was nothing then that could juftifie the Maccabees in their taking of Arms, but thac invincible Law of extreme neceflity, which might do it fo long as they contained them- felves within the bounds of felf-prcfervation, and in imitation of David, betook them- felves to f.crct places, in order to their own fecurity •, never offering to make ufe of their The Kings Arms unlefs violently aflaulted. In the mean time, Great care is to be taken, that even Perfon to be wnen we are rnus enforced to defend our felves in cafes of certain and extreme danger, Jefence'cfour we ^P are the- Per fan of the King-, for they that conceive the carriage of David towards felves. Saul, to proceed net fo much from the neceflity of duty , as out of fome deeper confide- i Sam. 25. c. ra'tion,are miitaken.For D*vid himlelf declares,thnt no man can be innocent that ftrctcheth forth his hand agamft the Lords anointed : Becaufe he very well knew that it was written Exod. 22.28. ' !1 r ' 1e Lsw , Thou {halt not revile the Gods, that is, the Supreme Judges: Thou Ih.dt not enrfe the Rides of thy people. In which Law, fpecial mention being made of the Supreme Power, ic evidently (hews that fome fpecial duty towards them is required of us : Where- Lib. 2- foveOptatits Mitevitanus (peaking Of this fact of David, faith, That Gods fpecial corr.m.md coming frefi into his memory, did fo reft rain him, that he could not hurt S:ul, though hktnorta} enemy. Chap. iv. Of ${ejiftance in cafe of ineVifable Danger, 6 5. enemy. Wherefore he brings in David thus rcafoning with himfelf, Vulebam hcfttm vine e, fed prists eft dtvina prxeepta oifervare ; Willingly I would overcome mine enemy, but 1 d.-.r. tranfgrefs the Communis of God. And Jofcphiu fpeaking of David, after he tiad cut Garment, faith, That his Heart fmote him : So that he confeft, hjuftum f, juum occidere, It was awickedacltokiBhisSoveraigit, And prefently after, Horrexdum Re- gent quamvis malum occidere, Vmmm enimid faeienti imminere conftat, ah eo qui Regent dt i: ; It is an horrid all to kill a King-, though wicked ', for certainly he, by whefe Pn vt It < c ■ U K reign, will purfue the Regicide with vengeance inevitably. To reproach any private man falily is forbidden by the Law, but of a King, we mult not fpeak evil though he delervc fciegsmuft it; becaufeas he that wrote the Problems (fathered upon jJ/ffiotU) faith, Fie that fpeak.- " e i bc ch r f r eth evil of the Governor, fcand.tliz.eth the whole City. Sajoab concludes concerning Shimei, kiiiod thouV as Jofephus teftifies, Shalt thou not dye, who prejumeft to curfe him whom God hath placed i.-i the wicked. Throne of the Kingdom ? The Laws f faith J ultaii) are very fevere on the behalf of Princes, for he that is injurious unto them, doth wilfully trample upon the L iws themfelves. Now if we muft Mifoj/ogor:s. not fpeak evil of Kings, much lets mult we do evil againlt them : Da,v id repented but Kis being apprehended made no rcftjrancc, tor attempted any revenge for injuries imjuftly de>;e them, though they wanted neither numbers of men, nor other means to have refilled: But it was their co: f. trace of fame Divine Vengeance that would fall upoi their Perfecutors, 'hit made them Lib- $. thtts patient ; mi.i that perfwaded the Innocent to give way to the Noeent. So Laifantiitt, Ws art wilting to confide in the Majefty of God, who is able as well to revenge the com en.pt done to himfeif, as the injuries and hardjiips done unto us : Wherefore though our fnjftrmgs be ftch as cannot be expreft , yet do we not mutter a word of difcontent, but refer our felves wholly to him Lib 6. £7. ic. who jitdgeth righteoufly. And to the iame Tune fings St. Augufim, When Princes err, they in jollitfj. prtfently wake Laws to legitimate their errors, and by thofe very Laws they judge the Innocent who Ep. 166. are at length Crowned with A -l.myrdom. And in another place, Tyrants are fo to be endured ly their Snbjs tls, and hard Mafters by their Servants, that both their temporal lives (ifpojjible) tnay.be freferved, and yet their eternal fafety carefully provided for : Which he illultrates bv the examples of the Primitive Clinicians, Who though they then fojourned upon earth as Pil- grims, and had vjvire numbers of Nations to affift them, yet chefe rather patiently tofuffer , manner of torments, than forcibly to refiji their Perfecutors : Neither would they fight to prcfervt their ten poral lives, but ch"fe rather not to fght, that fo they might enfure unto themfelves an e tenia!. For they endured Bonds, Stripes, livpr'iflonment , the Rack, the Fire, thsCrofs; they were flea d alive, killed, and quartered, and yet they multiplied; they efteemed this life not worth the fighting for, fo that with the lofs of tt they might purchafe what fo eagerly they pavted after, a bitier. Of the fame opinion was Cyril, as may appear by many notable layings ol his The Vbtbtin "pon that phceof St. 7o/>», where he ireats of Peters Swotd. The Thebean Legion, we Legion. read, ccnlifted of fix thoufand, fix hundred, fixty fix Soldiers, and all Chntttans, wbp when trreEmpcror Maximianm would have compelled the w! ole Army to facrtfice to Idols, fill remeved their Station to Agaunus; and when, uponfreih orders lent after their > i hey rcfufed to come,Maximanus commanded his Officers to put every tenth man to death, w hich was calily done, no man offering to refill : At which time, Mauritius (who had the chief command in that Legion, and from whom the Town Agaunus in Switzerland was afterwards called St. Mauritz., as Eucherim, Bifhop of Lyons, records) thus belpake his Fellow Soldiers, HuW fearful was I left any of you under the pretence of defending your felves (as was en fie for men armed as ye are to have done) (liould have attempted by force to have refined from death thofe bleffd Martyrs? Which had you done, 1 was fufficiently inflruttcd by Chrtjh own example to have forbidden it, who exprefly remanded that Sword into its flieath , that was but drawn in his own defence ; theteby teaching us that our Chriftian Faith is much more preva- lent than all other Arms. This Tragick Act being pall, the Emperor commanding the lame thing to the Survivors, as he had done before to the whole Legion, they unanimoufly returned this anf.ver , Tui qutdam, Cselar, Milites fumtts, ctrc. We are thy Soldiers, OCx- far, we took Arms for the defence of the Roman Empire ; we never yet defertedthe War, nor be- trayed the truft repoftdin us ; we were never yet branded with fear or cowardife, but have always obj'rved thy commands, until being otherwtfe inftruEled by our Chriftian Laws, we refufe to wor- fl'ip the Devil, or to approach tin fe Altars that are always polluted with blood. We find by thy Commands, that thou rcfolveft cither to draw us into Idolatry, or to affright us by putting every tenth man of us to death : Make no farther fe arch after thofe that are willing to lye concealed; but know that we are all of its Chriftians ; all our Bodies thou hajb indeed under thy power , but our Sou's rre fubjccl only to Chrijl our Redeemer. Then Exupenus being the Standard- bearer to that Legion, thus befpake them, Hitherto, Fellow Soldiers, I have carried the Standard before you in this feeular War, but it is not unto thefe Arms that I now invite you, it is not unto thefe Wars that I am now to excite your valour, for new we are to prailife another kind of warfare ; for with thefe weapons ye can never inforce your way into the Kingdom of Heaven. And by and bv he fends this mefTige to the Emperor, Againft thee, O Cxlar , Defparation it felf (which ufually makes even Cowards valiant J cannot prevail with tu to tafe Arms. Behold we have our weapons fixt, yet will we not refift ; becaufe we chufe rather to be killed by thee than to overcome thee, and to dye innocents, than to live Rebels to either God or thee. And a little after he adds, Tela prcjicimus, &c. We abandon our Arms, O Emperor , and will meet thy Miff ngers of Death with naked breafts, yet with hearts ftrongly mimited with Chriftian Faith. And prefently after followed that General Maffacre of the Thebean' $znd , whereof Eu- theritti gives this Narrative , It was neither their Innocence, nor their Numbers, that could exempt them from death, whereas in other more dangerous tumults, a multitude though ejfendivjr, are rarely puni find. The fame llory in the old Martyrology we find thus recorded, They were eyery where wounded with Swords, yet they cryed not out ; bat difdaining the ufe of their Arms, they expofed their Breafts naked to their perfecutors : It was neither their numbers, nor «_ their Chap, i v. In what cafes Subjecls may take Arms againjl their Trincc. 6 j their experience in War, that could perfwade them to affert the Equity of their caufe by their Swtrds, but placing his example always before them, who was led to the flaughter dumb, and like a Lamb to be Sacrificed, opened not his mouth ; they alfo in imitation of him, like the Innocent Flockj>fChrifl fuffered themf elves to be worried and tern in pieces by an herd of Ptrfccutirig Wolves. Thus alio do the Jews of Alexandria teftifie thtir Innocency before Flacctu, We are, at thou feefi, unarmed, and yet we are acci'fed unto thee as publick enemies to the State. Thcfe hands which nature hath given w for our defence, we have caufed to be pinnacled behind in, where they are of little ufe, and our breaflsvte expofe naked to every man, that hath a mind io kill its. And when the Emperour Valcns cruelly Perfecuted thole Chriftians, which according to the Holy Scriptures, and the Traditions of the Ancient Fathers, profeft Chrift to be l^xtiov, that is, Co effentialwith the Father, though there were every where great multitudes of them, yet did they never attempt by Arms to fecure themfelves. Surely, wherefoever i Pet. 2. 21." patience in times of perfecution is commended unto us, there we find Chrifts own exam- ple held out unto ns ( as we read it was to the Thebean Legion) for our Imitation. As Mat * I0- 39- therefore his Patience, foours, mould have no bounds nor limits but death it felf. And mk.12 %i. he that thus lofeth his life, is truly faid by Chrift himfelf to find it. Thus having fuffici- . ently proved, That he that is inverted with the Supreme Power ought not to be re- lifted. Now I niuftadmonifh our Reader of fome things , wherein he may miftake, by judging that thofe men do dam their Feet againft this ftone, who indeed do not. In the firft place therefore, Thofe Princesthat are under the body of a people, whe- VI I L ther they originally retained fuch a power, or by fome after contract or agreement made T nata free with them, as in Lacedamon ; if they do violate the Laws, or wrong the Common- nfake Wa'/a- wealth, may not only be by force refilled, but if it be neceffary, may be punifhed with gainft their death : As it befoi Taufanias King of the Lacedemonians, of whom Plutarch thus, The Pripce. Spartans taking to heart the death of Lyfander, fentenced their King to death, becaufe ViM - vit - Ay- leaving Lyfander out of Cowardife, whom he was fent to relieve, he had fled for fafety ' to Tegra. The like he records in the life of Sylla, The Spartans, faith he, depofed fome of their Kings, as being unfit for Government, becaufe they were of low and ab- jeft Spirits : Yea, and of Agis he reports, That being thejrKing, yet was condemned, though unjuftly. Now feeing that there were in Italy diverfe fuch Kingdoms, it is no marvel that Virgil, having firft recorded thofe many wicked Afts done by Mez.cn- tiiu, adds, Tti Hetrur'ans therefore, all in ajufi rage, To bring their Kings to Judgement do engage. Of whom an old Heirurian South- fay er, fpake thus, •Whom their jufi Woe Arms, if fuch a King fhall Invade that part which is not his own, he may jnftly dtrtgrnAxrn- ^ e ^ force refilled, becaufe in that part he hath not the Soveraign power: Which I be-> e °\\\\ fieve may take place, although it be faid, That the power of making War is in the And againft King. For this is to be underftood of a Foreign War •, fince otherwife, whofoever hath him who ha- any part of the Supreme power, cannot be denyed a Right to defend his own even by vingbutone force, which when it happens, even the King himfelf may juftly by the Right of War, part of the j j- e even nis own ^ zn or tne faid Empire. power,' 8 ?n- Seventhly, If in the Tranflation of the Empire it be exprefly faid, That upon fome cer- vades the tain events that mayhappen it may be lawful to make refinance. For although it could not other. then b: conceived that by that agreement any part of the Soveraign power was intended XIV. to have been retained - , yet certainly it may be conceived, that fome kind of natural Liber- And againft t y was thereby underltood to have been referved to the people, and exempted from the erantsfurh a P°wer of the King * For pofiible it is for him that alienates his own Right, to diminifh Licence in and decurt the Right that he gives by certain claufes or Articles of Agreements, whereof certain cafes, we may find in Hiftoriesnnny examples f. "ThmiuLpi- We have hitherto treated of him who hath or had a Right to Govern-, now fomething 7w y;ao I 04. we rou rf.f" a y f fr m that Invades or Ufurpsthe Government, not after he hath either by j6 " '<;. : long pofTeflion, or by Confent or Agreement obtained a Right unto it, but.fo long as the it Hmgaria. caufe of his unjuft acquifition continues. And certainly during the time that he poflefTeth t mm*m in the Empire, his Acts msy have power to bind : But yet, not as they are his, for Right < vundr*& dt to comma nd ne natn none, but upon this prefbinption, That he who of Right fhould Bub &:. govern, whe h.r King, People or Senate, had rather that his Laws for that time fhould X V. Ce binding, than that the people (hould live altogether without Laws, and without An llfurper Judgements, which mufl neceflarily introduce the greateft diforder and confufion. Cicero how far to be condemns Syllas Laws as too cruel againft the children of thofe that were profcribed, in Ti^Ad f m aking them uncapable of filing for Honours-, yet he thought fit, that thofe Laws fhould an 'iifurper be obierved : Affirming (as .£?«/» Hian tells us) that the ftate of the Common-wealth was binding, and fo contained in thofe Laws, that if they were not kept, th% Common-wealth at that why. time could not have fubfifted. Fiona alfo concerning the Ails of the fame Sylla, faith thus, Lepidus went about to refcind the AQs of this fo great a man, and indeed not without caufe, if at haft, he could have done it, without the rutne of the Common-wealth. And by and by, It wot expedient for the Common-wealth, being then ftch^and wounded, to be governed by any Laws whatsoever, rather than to fret and fcarnfic her Wounds by attempting an untimely Cure. Yet notwithftanding at fuch times, and in fuch Cafes wherein our obedience is not foexquifitcly neccfiary, and yet may help to confirm the llfurper in his unjuft poffel- XVI. fion^ If by our difobedience we incur no great danger, wemuft not obey. But whether An llfurper it be lawful for the people by force of Arms to deject him that fhall thus ufurp the Sove- iruy be kil- raigu power, or to kill him, isdifputable. led, duing And in the firft place, If he that ufurps another mans dominion have not gained it by contra be" a J uft War > that is > ky "J c " a War as natn a " tlle Rights required by the Law of Notions - y made with nor by any contract or agreement made with him, or Faith given to him, but that he him. holds Chap. iv. Wbctkr anUfurpcr may be killed. ,< 65 holds his pofTeffion by force only : The Right of War feems in this cafe to continue; By the Right and therefore wfjat may lawfully be done againft an enemy may lawfully be done againft oft,1 . e w " him, whom any private man that hath not given his Faith to him, may lawfully kill. contl - nued - In reos A4.ijeftatis , & publics* bofles omnit homo miles eft ; Againft: Traytors and publick_Enemies every private man, faith Tertullian, is a Souldier. So againft fuch as delert their Colours „ ' ■ , , in the time of War, it is indulged unto every man to take publick revenge in order to ' '°' ce the common fafcty. The fame may be ftid if before fuch an Invafion there were extant any fuch Law, XVII. authorizing any private- man to kill him who dares in his prefence commit fuch or Orbyrertus lucha fact. As for example, If being but a private man he fliall go with a guard about o( fo™ e ™K~ him, or if he fhall attempt a Fort, or kill a Citizen uncondemned, or illegally condemn- ce ent aw ' ed, or if any man fhall prefume to create a Magiftrate without jult fuffrages. Many fuch Laws we may read of to have been in force among the Cities of Greece, with whom it was alfo thought lawful to kill fuch Tyrants. Such was that Law of Solon in Athens, renewed after his return from Piraeus, againft fuch as had abolilhed Popular Go- vernment^ that after fuch abolition had born any office. The like Law there was alfo in .ft»M?,called the Valerian Law, againft any man that fhould afliime the office of a Magiftrate without the peoples confent,making it lawful for any man to kill fuch a man uncondemned, p!ltt - ?Mic as Plutarch relates, where he thus diftinguifheth Solon s Law from that of PubliceWs: Solon would have fuch a man legally conviifted ■■, but Public ola permitted any man to kill him that ufurped the office of a Magiftrate without any formal Procefs. And fuch was the Con- fularLaw, immediately after the Decemviral Government, That no man fhould dare t» create a Magiftrate without an Appeal ; and he that created fuch, might by the Laws both of God and Man be killed. No lefs lawful it is for him to kill an Ufurper, that hath an exprefs Warrant fo to do X V 1 1 1. from him to whom the juft Right of Government belongeth, whether it be in the King, By his Com- the People, or the Senate. Amongft whom likewife we may place the Protectors or ™ a ' t h fod|iu Guardians of Kings during their nonage : Such as was Jehojadah to King Joas, at whofe t h e Empire, command Athalia was deprived at once both of her Life and Kingdom, 2 Chron. 2 3 . Now unlefsitbc in one of thefe Cafes, I cannot perceive how it fhould be lawful for XIX. . any private man by force either to deject, or to deftroy him that ufurps tht Imperial Dig- whv an u - nity : Becaufe poffible it is, that he who hath the true Right had rather prefer the peace ^^ "^ and tranquillity of his Subjects, though under the Ufurpers power, than embroil his but in one of Countrey in blood, or to vex his Subjects with Civil War, which are the fad and bloody thefe cafes, effects and confequences that attend the Murther orExpulfion of Kings, cfpecially if his quarrel be efpoufed, by either a ftrong Faction at home, or powerful Friends abroad : Or becaufe it is at leaft doubtful, Whether that King, People, or Senate, in whom the Right of Empire is, are willing that the matter fhould be brought to fo defperate an iflue. And without the precife knowledge of this, all violence of this kind is unjuft. It is very true, what Favonius\nPlutarchdbklvzs, Pejus eft Bellum Civile DominatH Jllegitimo; Vita%r»ti. An Intcftine War is more deftruclive than any Tyranny. For though the Rage of Incenfed Tyrants may produce more Tragical effects upon fo me particular Families, yet the De- «£j luge of a Civil War fpreads farther, continues longer, and leaves more dreadful prints behind it, than any Tyranny. Give me any peace, faith Cicero, rather than a Civil War. Tittu Quintm told the Lacedamonians, That itwouldbe much better for them to bear Uv. 34. with the Tyranny ofNabis, than by endeavouring by Arms to recover their loft Liberty, to make the Tyrants Grave in the ruines of their City. And to this purpofe was that prudent advice of Ariftophanes, Leo in Civitate noneft alendus ; fi alitus fit, ferenduseft : Either not to nourifti a Lion, or being nouriftit, not to provoke him. It is indeed a very difficult cafe,and will admit of a ftrong debate, Whether Peace or liberty bemoft acceptable : Cicero whether makes this queftion, the molt difficult of all others in the Politicks to be refolved, Whe- PeaceorLi- ther our Countrey being oppre ft by Tyranny, we may attempt to redeem it, although with the dan- hertybemoft gerofits defolatiott. But it is not for private men to determine what the Common Judge- el, S lbIe - ment of the people would be in this cafe, but this we abominate as being grofly unjuft : to make our Countries Liberty a cloak for our own Ambition •, and to pretend to deliver her, when we intend to inflave her. Sylla being demanded , Why he marcht into his own 4pp. civit. 1. Countrey fo ftrongly Armed : anfwered, Vt earn a Tyrannis liberem % To deliver it from Tyrants : When he that pretended fo to do, was himfelf the greateft Tyrant. So Amiochm VUt.cmne brought a Mighty Army into Greece, alledging that he came tofct Greece at Liberty, when Mi i or ' indeed it wanted none. His pretence, was Liberty, but his Intent, Tyranny. Crude- £ . . litatem Damnat & crudelitatcminit ; By condemning Tyranny, he trapansthemintoit : It Was Fam.l.t'. much better Counfel, that Plato gave to Perdiccas, which Plato thus renders, That he Noalteraci- jhould attempt no more in the Common-wealth, than he could juftifie to his Subjects '. For that no- oas of Go- thing favouring of force or violence jhould be obtruded upon either our Parents or our £ountrey. ve . rnraent . To the fame lenfe is that ofSa/w/?, Tfyugh thou couldft govern thy Conntrey or thy Parents by lent comma- K forcti tioos. 66 Who may lawfully make War. BOOKL force-, and corretl at thy pleafure every fmall offence, yet would it feemharffi and troublefome, efpe- daily confidcring that no violent thing can be permanent, nor any Mutations of Government, without violent Commotions, War, Rapine, and fuch like alls of hojHlity. Not much different from this is that of Statins in Plutarch, It becomes not a wife or a prudent man to endanger himfelf in Popular Tumults, amongft either Fools or Knaves. Whereunto we may alfo not impertinently refer that of St. Ambrofe, This alfo will highly advance thy 'Credit and Repu- tation, if thou canfi refcue the poor out of the hands of the Opprejfors, and deliver him that it wrongfully condemned to dye ; fo that thou do it without raiftng Tumults or moving Sedition : Lt(t othervpife thou (houldfi fern to do it rather out of an affectation of Popularity and Vain glory, than out of Pity and Commiferation, and fo confequently make thofe wounds deeper which thou (liouldeft heal. It was the opinion of Jquinas, That the pulling down of Government though Tyrannical, was fometimes Seditious. Neither are we much moved to the con- trary, by that fad of Ehud to Eglon King of the Moabites. For the Scriptures plainly tell us, That Godraifedup Ehud to deliver Ifrael : What Ehud did- was done by the fpe- cial Warrant of God himfelf. Neither doth it appear, That this King of ths Moabites had by Agreement no. right of Soveraignty. For God we read did execute his Judge- ments even againft other Kings by fuch Inftruments, as he himfelf was pleafed to raife up to that purpofe, as may be collected by Jehu againft for am, 2 Kin. 9. But it is efpecially to be noted, That no private perfon ought to determine Con- troverfies of this nature, but mould rather obey the prefent poffeflbr. As Chrift com- manded to pay Tribute to Cafar\, becaufe his Image made the Money currant ; which was a convincing argument that he was in full pofleffion of the Empire at that time : For the Coining of Money was ever the molt certain fign of the Poffeffion of the Empire. Xtllojug. Vita Brut. To deliver the poer from oppreflion, fo it be without railing Tu- mults 6r_ Se- dition, is commenda- ble. Judg.3. 15. Nehem.9.27. XX. No private man to be Judge in this cafe. f Mat. 22. 2@. CHAP. V. Who may lawfully make War. I. The Efficient Caufes of War are either the Principals in their own caufe : I I. Or in the Caufe of another. HI. Or Inftrumental at Servants and Subjetts. I V. By the Law of Nature none are prohibited from War. I. The princi- pal efficient Caufe. A 11. Auxiliary Jfibil-utilim S in all other things, fo in Actions that are voluntary there are three forts of Caufes efficient, that is to fay, Principal, Auxiliary, and Inftrumental. The Principal efficient caufe in a War is for the moft part he whole the quarrel is : In a private War, any private perfon : In a publick, he that hath the publick Power, efpecially if it be Supreme. Whether a War may be juftly undertaken in the behalf of another, not making War, fliall be difcuft hereafter. In the meantime this is moft certain, That naturally every man hath a Right to revenge his own quarrel, and for this caufe were hands given unto us. Neither have we a Right to vindicate our own quarrels only, but we may both lawfully and laudably improve our Right to the vindication of other mens alfo. They that treat of Offices fay truly, That there is nothing fo ufuful and profitable unto man, as ano- homini bomine ther man. There are feveral obligations, wherein we ftand bound to one another for titere. mutual help and affiftance •, For kinfmen do ufually combine to help one another : So one Neighbour being oppreft invokes the help of another : So alfo do Citizens the aid of their fellow-Citizens. Ariflotle thought it a duty incumbent to every mantoaflume Arms, either to defend himfelf, in cafe an injury were offered him •, or to affift his Kinf- men, his Benefactors, or his Companions, in cafes of oppreflion. And in Solon's efteem, That was the belt Common-wealth, wherein every man was as fenfible of Injuries offered to another, as if they had been offered to themfelves : Hence is that of Plautus , Pnetorquete Injuria: prius Collum quam ad vos perveniat : Break the Neck,of an In- jury before it comes at us. But though all other obligations fhould fail, yet it is fufficient that we are linkt together in the common ftock of humanity. For, ah homine ?iihil humani alienum ; Nothing that is incident to humane nature, fliouldbe to any manflrange. De- mocrats tells us, That it is a duty incumbent upon every man, ft far as he U able, tofuccottr all that are oppreffed with wrong,%nd not at all to neglect it: For this, faith It was well faid of Menander : injurUrumfi improbis Anfioribia Rtfomremus ultionm dnguli, Nobis putdntesfitri, quod fit alttri, Inttr noi junSli, Confpiratis virions, Nonpravaltret Itinociniia Impetus Audax Atelorm : Qui cufioditi Htdique Juljlqiti pcenas qu.is nurtntm ptndire, Ant nullipenitus iffent, autpauci admodim, Chap. v. Who m.iy lawfully make War. 6~ faith he, is both juft and honeft : Which LaVcantim thus exprefleth, God, faith he, who dtnyed to all other creatures Wifdom > furnifht them with fitch natural Muniments , as were fujficient to defend them from violent incur fions and fudden dangers : But unto man, beinr fi into the world naked and unarmed ; the better to inftrutl him in Wifdom, hath Cod, be fide i other endowments, given him Natural affection, whereby we are taught to love, cherijh, and defend each other, and readily to give and receive aid and affiftance one to, and from another, again j} all outward affaults and dangers whatfoever. By Inftrumcnts here, we mean not Arms or fuch like, wherewith we either offend nj. others, or defend our felves : But fuch voluntary Agents, as are contented to receive di- Or inftru- reftions from others. Such as a Son is to his Father, being a part of himfelf naturally ; mental; as or as a Servant to his Mafter, of whom he is legally a part. For as a part doth not on- Semat5 > &: - ly refer to the whole in the fame relation, as the whole is the whole of the part ; but this very thing That it is, is the whole : SoPofTeffion isfaid to be fomethingof him that poffeffeth it. And Servants, faith Democritus, are to be ufed as we do the members of our bo- dy, fame to one purpofe and fame to another. Now what Servants are to a Family, the fame are Subjects to a Common-wealth, and fo are as Inftruments to him who hath the Su- preme power. Without doubt, Naturally all that are Subjects may be employed in the War, though I v. fbme fpecial Laws may excufe fome •, as heretofore Servants among the Romans, and now Naturally no every where the Clergy : As the Levites among the Jews were not liable to the duties of ["an excufcd War (as Jofephus teftines) which Law notwithstanding, as all others of that nature, mull 10m ' admit of the exception of extreme neceffity. And let this fuffice to be fpoken in general concerning Subjects and Servants : For what more efpecially concerns them, (hall ,be handled in their proper places. K 2 H il G O / Hugo Grotius O F T H E RIGHTS O F PEACE & WAR. BOOK II. 6 9 CHAP. I. Of the Caufes of War, And, Firft, of War made in our own defence. I. What Caufes may be fetid to jufiifie a War. II. That they arife either from our own defence, or from requiring what is our own, or is due to us, or from punijhment. III. War made for the defence of our Lives, lawful. IV. Againfi the Aggrtffor only. V. Jn fuch dangers as are imminent and cer- tain, notinfuchas are opinionative only. VI. War made in defence of our Limbs, law- ful. VII. Efpecially in defence of Chafiity. VIII. War made in defence of our felves, may fom'etimes be omitted. IX. Our defence made againft a Perfon publick.- ly very profitable, fometimes unlawful by the Law of Charity. X. To kill a man for a box on the ear, or for fame fuch reproach, or rather than flee ; not lawful for a Chrifiian. XI. To kill a man in defending our Goods, by the Law of Nature not unlawful. XII. How far permitted by the Law of Mofes. XIII. Whether, and how far permitted by the Evangelical Law. XIV. Whether the Civil Law , permitting a man to k[U another in defence of himfelf, do give a right fo to do, or only an impunity, explained by a difiintlion. XV. When Duelling may be lawful. ■ XVI. Of defence in a War that is publick- XVII. If only to weaken the growing power of a Neighbour Prince, the War be to be repu* ted unlawful- XVIII. The defence of him who hath given jitfi caufe of a War, is Ukewife unlawful. E T Us now proceed to the Caufes of War : I mean thofe that jufiifie a War ; \, for there are others that excite men to War under the notion of Profit, which are fometimes diftinc~t from thofe which excite upon the account cf Juftice ; which as well between themfelves, as from the beginnings of War, (fuch as was the Hart in the War between Turnus and *A.neas) Polybius doth 3 Hl a accurately diftinguiih. And though the difference between thefe are mani- feft, yet are the terms ufually confounded : For even thefe caufes which we call juftifying, Livy, in the Oration of the Khodians , calls the beginnings of the War ; Surely ye (fay m,, .£ the Khodians") are thofe very Romans, who pretend that your Wars are therefore fuccefsful, be- caufe they are jufi; and that glory, not in the event, that ye can conquer, but in the beginnings, that ye never make War but upon jufi caufe. And indeed there was hardly ever any Nation that 7 o Of the Caufes of ajuft War. BOOK II. that did fo long pride themfelves in the juftice of their Quarrels, as the Remans did. The Romans, faith Polybius, took, very great care not to begin a war with their Neighbours \ and would have all men believe that they never made war but to repel Injuries. This Dion teftifies in that notable comparifon he makes between the Romans, and Philip of Macedon, and Antiochus. And elfew litre he tells us, That the Romans tool^ fpecial care that their Wars ftiould be juft, nor did they ever decree a War rafily, or without juft caufe. In the fame fence Lib. \2.c. 53. £ ot h ^£1^1 ca i| the Caufes of War, the beginnings of War : And Diodorm difcourfing of the war between the Lacedemonians and the z/Elians, makes the pretences and the be- ginnings of the War to be the fame. Thefe juftifying Caufes of War are the proper Ar- Ub. 8. gument of pur prefentdifcourfe, whereunto that of Coriolanm in Halicamaflinfh is perti- nent, Lei your firjt and principal care be , that the ground of all your Wars be picus and juft. Olynth. 2. So is that likewifc of Demofthenes, As in the building of houfes, Ships, and fucb like-, the Foundation or Ground-work^ flwuld be firm and lafling, (otherwtfe the Superftrutlures willfoon de- cay and totter : ) So in all our Enterpriz.es, Juftice and Truth flwuld lay (as it were) the firjt. lib. 12. fione, if we expecl that the fuccefs flwuld be honourable. No lefs pertinent to this purpole is that alio of Dion Cafftus, In all our Wars let our chief regard be to Juftice , for if (In lead up the Van, true valour may bid fair for the victory : But if Pie be wanting, though our fir ft at- Dt ret) I a tem P ts filter «*, yet will the end prove inglorious. And that alfo of Cicero, Thofe wars are mjuft that are undertaken without caufe. And therefore in another place he fharply reproves Caffius for pafling with his Army over Euphrates, when there was no juft caufe of War given, which holds true no lefs in publick wars than it doth in private. Hence arifesh that complaint of Seneca, Do we reftrain Homicides, and punijh Murderers, and yet efteem the depopulation of whole Nations glorious ? Covetoufnefs and Cruelty know no moderation , Com- miffions are every day fent out by the Senate and People to execute Ails of Cruelty, and what we privately forbid, we publtckjy commend. Homicidium cum admittant finguli, crimen eft ; virtus vo~ catur, cum publice geritur ; When a private man commits a murder he u puniflied as a Crimi- nal, but when thoufands are publickly taken away and deftroyed, it is inftantly canonized for vir~ tue and valour. It is true indeed, That War being undertaken by publick Authority, like the definitive Sentence of a Judge, hath fome effects of R'glit (whereof more anon ! ) But yet are they not altogether blamelefs, unlets there be a jult caufe to warrant it. Thus •was Alexander lor invading the Perftans and other Nations without caufe given, deferv- edly cenfured by the Scythians in Curtius, and elfewhere by Seneca, for a Robber, and by Lucan for a Thief, by the wife men of India as a Scourge to all Nations, and the common peft of mankind •, and before that by a Pirate, for the greater Pirate of the two. So Juftin fpeaking of his Father Philip,- faith, Tnat two Kings of Thrace were thruft our, and deprived of their Kingdoms through the fraud and villany of a Thief; Whereunto we maylikewife refer that ot St. Auguftin, Rcmota Juftitia, quid [tint Regna nifi t magna Latro- cinia; Take away Juftice, and what are Kingdoms but great Robberies. With whom accords that of Lairantius, Inanis gloria fpecie capti , fceleribus fuis virtutis nomen imponunt , Being blinded with felf-love and vain glory, they mifcal all their vices venues. Nor was Juftin Mar- tyr much ami fs, when he faid, What Thieves do in defert places, the very fame do fitch Princes who prefer Opinion before Truth. Now other juft caufes of making war there can be none, but injuries : So St. Auguftin, The wrongs done on the one fide, make the war done on the other fide juft. So alfo faith the Roman Herald, / do teftifie and declare, that fucb a people are un- juft and have not done us right ; thereby intimating, that the people of Rome might juftly make war upon them. jj # Now look how many caufes there are of civil Aclions, fo many there are of a juft war-, War made, for Vb* defmunt Judicia, incipit Bellum ; Where Judgments ceaj'e, War begins. Now at the 1. For D«- Law, Suits arife cither for prevention of Injuries not yet done, as when Cautions and fence. 2. For Securities are required, that no acts of violence mail be offered, nor any damages done c po r rtI pu*. us •, or for injuries already done, as namely, that they may be recompenced , or the per- nifhment,law- fon injuring puniflied. But as to that which comes under the notion of Reparation, iE fill. refers either to that which is, or was ours, from whence arife vindications and fome per- fonal Actions-, or to femething that is owing and juftly due unto us, whether by fome contract or agreement, or for fome hurt done unto us, or by the Law, whither alfo we are to refer thofe things, which are faid to arife, as if they were due by contract or by fome wrong done unto us -, from which heads arife the other conditions : That which concerns Facts to be puniflied, requires, Firft, An Accufatiori, Secondly, Courts of Judg. ment. Moft men aflign three juft caufes of a War, namely, for Defence, for recovery of what is ours, and for punifhment : which three we ihall find fumm'd up by Camillus in his denouncing War againft the G aides, Omnia qua defendi, repetique & ulcifci fas fit ; All which may lawfully be defended, recovered, and revenged. In which enumeration, unlefs we take the word, Recovered, in its larger fignification , it will not include the exacting of that which is due unto us ; which was not omitted by Plato, when he faid, That war might be juftly made, not only when a man is oppreflcd by violence, or when he is pUlaged, but when Chap. i. Of DefenfiVe War. ri when he is fraudulently dealt with, and fo deceived of what is his due. Wherewith ac- cords that of Seneca, zAiquiffima vox eft, & jus Oentium pre fe f evens, Reddt quod debesf, This Vt ° r: - is a righteous faying, andconfonant to the Law of Nations, Pay what thou oweft . And it was a claufe always inlertcd in that form ufed by the Roman Heraids, Qgas nee dedemnt, nee u-_ 7 •. ,. folvermit, ne'e fcceritnt, qitas dart, fieri, folvi oportmt , That they neither gave, aid, nor paid, what they ought to have given, paid, and done. So Itkewiie Szluft in his Hiftory, Jure Gen- lib. 6-. Hum res repeto, According to the Law of Nations, I require whaews mine own. Servius upon Ad 9. o&u Virgils z/Eneads tells us, That When the King of the Heralds was fern to denounce war, he came to the borders of the enemies Country ; and after fome ceremonies, cryed out with a loud voice, Tk a he denounced War againft them forfuch orfuch caufes ; either becanfe they had wronged their of- ficiates, or becaufe they had not reft or ed fomething unjujily taken away, or that they had not etc Uveredup offenders to be punijhed. And when St. Auguftin laith, That jnll Wars are ufinlly 10 Quell, up- thus defined, §tu defend others from violence. As to thofe whom we have contracted with as our Guards , to de- fend us in our Journeys either by Sea or Land, and to fuch as are publick Governors, unto whom that of Lucan may not unfitly be applied. Cum C h a p. i. Of a DcfenfeVe War. 75 Cum tot ab hac anima populorum vita faluf que Pendent , & tantits caput hoc fibi fecerit orbit, Savitia eft rolmffe mart: Since on thy life fo many lives depend, And waft made Head the Members to defend-, To wifi to dye were madnefs. As alfo that of Cur tilts, Whiljl thou unadvifedly expofeft thy life to fo many perils, thou doft Lib. 10. not remember how many of thy Subjects lives thou endangereft , which thou oughtefi to defend. On the contrary, It may fo fall out, That the life of him that endangers ours, is lb IX. . beneficial to others, that he cannot without fin be killed ; and that not only becaufe it is 0u r defence forbidden by Gods Law both in the Old and New Teftament, which we have already pro- fon'publi^r ved, where we (hewed that the Perfon of a King is facred, but by the very Law of Na- ufeful"unlaw- ture: For the Right of Nature as it fignifies a Law, doth not only refpecT; thofe things ful by the which are agreeable to that which we call Expletive Juftice, but it comprehends alfo the Rule . of Afts.of Fortitude, Temperance and Prudence, as being in fome certain circumftances, charit y* not only honeft and laudable, but ftriftly due. But unto this that we have faid we ftand obliged by Charity. Neither am I at all ftartled from this opinion of mine by what Vafqu'uts urgeth, That the Prince that (hall Infult over an Innocent perfon, doth tpfofatlo ceafe to be a Prince •, than which, nothing can be faid lefstrue, or more dangerous. For as Right and Property, fo Soveraignty is not loft by mif government, unlels fome Law doth fo determine it. But by what Law was it ever yet decreed, that Kings fliould lofe ^mlo^oy their Soveraignty, by an offence committed againft a private perfon? Surely there was mif govern- no fuch Law ever yet found, nor I believe ever will be : For the condition of Princes menc. would then be very flippery, and the Common- wealth foon fall into Confufion. And as to that which Vafquius layes as his ground-work , whereupon he ere&s this and many ^j^ ; "°con- other fuch dangerous conclufions ^ as namely, that all Soveraignty was granted, for the f uce d. benefit of the Subjects, and not of the King •, were it univerfally true, yet were it nothing to the purpofe : For the thing it felf doth not then wholly ceafe, although the benefit or profit thereof doth in fome part ceafe. And whereas he adds, That every man wifneth well to the Common-wealth for his own fake •, and therefore every man fliould prefer his own fafety, before that of the Common wealth, it doth not follow. For although we do wifh the prefervation of the Common-wealth for our own fakes , becaufe our own fafety is included in it •, yet do we not wifh it only forour own fakes, but for the good of others alfo. For the opinion of thofe Philofophers, who hold, that true friendlhip doth arife out of fome Indigency or Infufficiency, is rejected as falfe and pernicious, fee- ing that Man, being a creature naturally fociable, is promptly and of its own nature in- clined unto it. But that I fhould prefer the common fafety before mine own, Charity doth fometimes perfwade, and fometimes command me. Flutarch will tell us, That the yita vth\ principal part of Valour is, to defend our Defender. And Cajjiodore illuftrates this, by a ve- ry fit comparifon, If the hand, faith he, by its intelligence from the eye , perceive a blow threatning the head, without regard to its own fafety , it will interpofe it felf between it and danger : From whence he infers, That they who to redeem their Prince his life, hazard^ nay lofe their own, do but the fame in the Politicks, which the band by Inftintl doth in the body Natu- ral. Jt is no marvel, faith Seneca, if Kings and Princes being the Guardians of public k States, be dearer unto us than our own Relations : For if in the Judgement of the Wife, the Lib. i. di Publick Good be to be preferred before any private mans ; It will eafily follow , That he that is c!em - c - 4* the Father of our Countrcy, deferves to be dearer unto us than the Father of any one Family. Or as St. Ambrofe fpeaks, Pie that delivers a Nation from defolation, merits more love, than VtOff.!.^. r.g. he tbnt delivers us from particular dangers. And therefore the fame Seneca doth highly commend Califtratus and Eutilius, the one an Athenian, the other, a Roman, who refufed to have their own eftates reftored unto themfelves by the publtck^r nines : efteeming it much bet- .-, ,■ , R . ter to perifli by themfelves, than to redeem their own lives and fortunes with the deflriitlion of c . 17. their Countrcy. There are alfo, that hold it lawful to defend our felves from any flight Injuries, as a X. box on the ear or the like, even by killing him that attempts it. But refpedt being herein To kill any had to lattice meerly Expletive, I cannot diffent from them. For although the Inequa- ™ a " for . a lity be very great between a box on the ear and death, yet he that (hall attempt to injure '^ i^wfii for me, doth therein give me a Right, that is, a kind of Moral power to oppofe him without chriftiuns. any limitation, fo far forth as I cannot otherwife repel or avoid the Evil intended againft me. Neither doth Charity by it felf feem toreftrainus herein, in favour to the Noccnr, Li- nus the Mufician, provoking his Drfciple Hercules with a fight blow, had his brains beaten out by L Hercuks 74 Of Defenpe War. BOOK I ». 5 . Honor,\vlut ? Seen more in j3atience,than an over-hafty revenge. Hercules with his own Harp : and being by fonts arraigned for the Murder appeals for his Indemni- ty to that L.iw of Rhadamant, whereby he that wounded another, being by btmfirft aft.iulted, was declared Innocent. But the Chriftian Law doth clearly forbid it land Chnfthimlelf doth ex- prefly charge his Difciples patiently to fuffer any ftich flight injury though reiterated, rat !v. c than to hurt our adverfary : How much more doth he forbid them to kill him, to avoid a box on the ear ? By which particular Inftance, we arc fufficiently cautioned againit that of Covarmvias, That Mans underftanding being well Inftrucled in what is naturally Right, will not endure, that any thing fbould in natural reafon be permitted, that is not alio permitted by God, who is very Nature it felf. For God, who- is fo the Author of Na- •ture, that he fometimes acts Freely above Nature, hath aright to bound andtolimic us-, by Laws, even in fuch things as arc- in their own nature, Free and Indefinite j much more hath he power to oblige us to that which is naturally honelt, though not due. But a wonder it is, That fince Gods will is in this point fo exprefly declared in the H^'diin^ Gofpel, there ihould yet be found fo many Chriftians, yea, and thofe Divines, whomain- guLcu.vifi. tain, not only that for the avoiding of abox on the ear, or fuch like flight Injury, we may dtjureBil', lawfully" kill our adverfary : But that in cafe he that hath fmitten us do fly, yet may we purine him even to death, for the vindication of our own honor, which feems to be as equidiftant from natural reafon, as from Chriftian piety. For, Honor eft opinio de excel. lentia, Honour is an opinion of fome Excellency in the perfon honoured. But he that cart bear fuch an Injury, doth exprefs himfelf eminently patient, and by that means doth ra- ther magmrte than diminifh his own honour. Neither is it much material, That fome men of "corrupt Judgements do reproach this Vertue by the name of Cowardice. For thofe {hallow heads can neither alter the thing it felfmor lefTcnthe reputation of it.Neither was this the Judgement of the Primitive Chriftians only , but of the Ancient Philofo- phersalfo, who ever accounted it an argument of a weak and pufillanimous Spirit, Not To kill a man to be able to digeft an Injury, as we have elfewhere (hewed. And from hence we may for a High: colled, how deltrvedly their Opinion is to be exploded, who hold it lawful by even Di- Iho" naturally vine R 'S nl: > f for tnat ic mav befo b y the Ri S ht or " Nature * den Y not) to defend our felves even from mean and flight Injuries by even the death of the perfon Injuring, although we may without any danger avoid him by Flight, or otherwife ; Becaufe it is accounted difho- nourable in a Perfon of Quality fo to do: whereas indeed, the fcanda lis notjuftly given, but by a popular mifprifion unjuftly taken , and by all thofe who understand wherein true Wifdom and Valour do confilr, to be contemned. And it doth not a little rejoyce me r th?t herein I have the concurrent opinion of that Excellent Lawyer Charles Moline amongfo others to abett me. Now what is find of a blow on the cheek, and of Flight, the very fame may alio be faid in all fuch cafes wherein our honour or reputation is not greatly wounded. But what if a man fliall fpeak that of us, which being believed, mayblaftour credit and eiteem with men ?• Some there are that would perfwade us, that we may law- fully kill him alfo, but very erroneoufly, and againft the Law of Nature: For this is no fit means whereby we may hope to clear onr Fame, or to repair our good Name being fullied. Let us now proceed to thofe Injuries, whereby we are damnified in our Goods or Eftates. And if wc refpecl Expletive Juftice only, I fliall not deny, but that for the confervation of them, the Robber, if need be, may be killed : For as there is fome Ine- goods"by"thc quality between a righteous man and a Thief \ fo in the judgement of the Law, the Goods tawofNa- of the Innocent are evenly ballanced with the Life of the Nocent .- Whence it follows. That if we refpecl: this Right only, a Thief flying away with ftoln Goods, if thofe Goods cannct otherwife be recovered, may be killed. So Demofthenes in his Oration againft Ariftocrates, Is it not, faith he, a very fad Cafe, and contrary to all Law and Equity, that 1 fliould not be permitted to ufe -violence againft him-, wijo by violence hath difpojjeft me of my Goods ? Neither doth common charity ( fettingalide the Laws of God and men J hinder me by way of precept , untefs it be for things of fo fmall value, as deferve rather to be flighted, than with fuch eagernefs to be prolecuted •■, which is an exception that fome Writers do admit of. Let us now fee in what fenfetheJT/o/^'c^/Law is to beunderftood, whereunto that old Law of Solon was parallel, which Demofthenes commemorates againft Timocrates, from whence was taken the Law of the 1 2.Tablesi and that of Plato alfo in his Ninth de Legihus. All which Laws do agree in this, That they put a great difference between a Night, and a Day-Thief. But concerning the reafon of this Law there is fome queftion •, Some are of opinion, that the only reafon of this Law is, becaufe by Night it cannot well be difcerned, whether he that breaks into an houfe, be a Thief or a Murderer i and there- fore to prevent the worft, he may be killed as a Murderer. Others place the difference in this, That in the night a Thief cannot be known, and confequently the Goods ftoln cannot be recovered, and therefore he may be killed. But in raing opinion, the Law- makers had no regard to either of thefe properly \ but rather, that none ought to be kil- led lawful, yens contrary to the Laws of God, and of Charity. in addit. ad Ala.Coif.ii?' C. 3. 8. 376. X!. To kill any man in . de- fence of our ture not lawful. XII. How far law- ful by th: • Law oiXufes. The D.iy- Thiefand the Night-Thief dilhnguiiiicd C H a p. i. Of a Vcfcnfme War. 75 led for Healing of Goods directly, yet, that in fome cafes, the Goods ftoln might occa- fion the death of him that ftole them-, namely, when the Goods ftoln cannot othcrwife be recovered, but by killing him who is flying away with them. But if I my felfin puriuing after my Goods, (ball be brought into danger of my life, then it may be lawful for me to redeem mine own life out of dinger, though with the hazard or lots of another mans: Neither can it be juftly objected againft me, that I brought my felf into that danger, bc- caufe 1 propofed nothing to my felf, but either to defend or recover what was mine own, or to take the Thief,which to me is lawful : nor do I injure any in the life of lawful means to a lawful end. But the difference between a Nocturnal and a Diurnal Thief confifts in this, That in the Night there can hardly be found witnelFes fiifficient to teftifie the mat- . - terofFact. Therefore in cafe a Thief be found flain, we do ealilygive credit to him, f" . %_Niglii who fhall confefsthathe flew him in his own defence-, efpccially if the flain Thief be C j^,o t "p ro ,> c found with any offenfive weapon by him. For this is by the Hebrew Law required, That the Theft. the Nocturnal Thief was found digging through an houle , as fome have tianflated the Hebrew word j or as others better, with a digging Inftrument about hinv, as the moft Learned of them have expounded that place oijer. 2. 34. I am the more eafily guided to this Expofition by the Law of the Twelve Tables, whereby it is forbidden to kill ANotfurna! a Thief that robs by day, with this exception, Unlefs he fhall defend himielf with fome Thief may le weapon. Now it is to be prefumed, that a Thief that robs by Night , hath weapons } !llll - d > )l he about him to defend himfelf. By Weapons the Lawyer Gyw underftaads, either Iron, weapons a Club or a Stone: on the contrary, it is the opinion of Vlpian, That whereas it is about him. provided, by the Law, that he that kills a Thief by Night 111 ill be iadempnified, it ought to be underftood, in cafe, that in defending his Goods, he could not dtherwife free himlelf from danger. There is therefore (as I faid) a ftrong prefumption for him that kills aN> diurnal Thief: But ifthc^e were fufficient witnelles to prove, that he that killed fucli a Thief, was in no fuch dagger, then the prefumption would inftantly ceafe, aid he that mould kill the faid Thief, fliould be held guilty of Homicide. It islikewife pro- vided by the Law of the Twelve Table?, That he that apprehends a Thief, whether by , ^ Day or Night, fhould publiih it with an Out-cry^ ( as Cajus inftructs us : ) that fo, if it xhirf rauft might be, both the Magiftrate and the people may be called in to a (lift, and give tefti- beaffoultcd mony to the matter of Fact. Butbecaufe fucha Concourfe cannot fo eafily be procured with an Out- in the Night, as in the Day, therefore is more credit given unto him that fhall affirm, that C1 > he killed the Nocturnal Thief in his own defence. Not unlike is that Hebrew Law in the cafe of Ravifhment, which if committed in the Field, the perfon ravillied was to have been believed ; but not fo, if in the City : Becaufe there (lie both might and ought by her clamour, to have called in the Neighbours to her afliftance. Not that the Cafe of Ra- vifhment is alwayes to be determined by this Rule, as Philo well expounds this place: A R apecorrf For poflible it is, that fuch a fact may be committed in a City without clamour, by ftop. Vie \d a nj \ n ping the mouth : and that in the Field, it may be done with Confent (as in his Book of the city, die Special Laws he affirms). But that this Rule is to guide us in ordinary cafes ofRavifh- ferenced. ment, moreover admitting the dangers to be equal, yet in the Night, becaufe we can- not fo well defcry what the dangers are, either for Quality or Quantity, therefore though the dangers may be lefs, yet the terror mult needs be more. Let this aifo be ob- ferved, that both the Hebrew and Roman Laws, though they appear fevere, yecare they ufually addulced by Charity. For they would not willingly punifh Theft wfch death-, there being fo great a difproportion between Life and Goods, unlets the Injured perfon in ftriving to recover his Goods, fhall be brought in jeopardy of his Life. AadMifes Maimonides hath left this Charitable Rule for our Guide, whilft he gives no private man power to take away the life of another, unlefs it be in the defence of that, which being loft, is irreparable \ fuch as are Life and Chaftity. But the Queftion is, Whether the Evangelical Law, being moreSublimeandSpiritu.il, XIII. than either the Jewijh or Roman Laws, do not require a more ltnet and perfect obedience, Howf.' 1 " forth than thofe Laws do ? And clearly it doth. For if our Bleffed Saviour do enjoyn us to part K t*,n,*i;Li with our Coat and our Cloaks , and if St. Paid admonifh us to fufferour felves to be Law." difpoiled of our Goods, rather than contend in Law for them, which is a kind of un- bloody ftrife : How much more doth that Law expect, that we fhould rather forbear and forego things though of a greater value, than embrew our hands in our Neighbours blood, he being Gods own Image, and of the fame nature with our felves? Wherefore if our Goods, being ftoln, may be recovered or defended without the danger of bloodfhed, we do well fo to do : But if not, we ought rather willingly to lofethem, than to (lain our hands- with theblood of him that robs us : unlefs the things ftoln, be fuch as are neccf- fary for the fuftentation of our felves or our families, and which cannot by any Courts of Juftice be recovered :, becaufe haply the Thief is not known, and that there is fome fear, Forte jut* f« that without bloodlhcd, the thing will be gone*. And although almoft all bothDi- f^knotm, & vmes and Lawyers, do at this day maintain, That to kill him that (hall attempt to rob us ^it^trm L 2 of abitkftm. ~5 Of a publick Defcnjhe War. BOOK II. Vtlib.Arb.l-i of our Goods is lawful, even beyond thofe limited bounds, wherein the Jew ijli and Ro- man Laws permitted it •, as namely, in cafe the Thief being pofleft of cur Goods do fly -, yet that this was the lenieof the Holy Scriptures in the Primitive Times, I cannot doubt! Neither did St. Auguftin think, otherwife , as may appear by rhefe his own words, Ouomodoapud divi?;atn p- evident iam a peccato liberi funt , qui pro bis rebus, quas contemni cportet, humana cade polluti funt ? How can they appear Innocent before Cods Tribu- nal who for thiwfs vet worthy a Christians care, can pollute themfclvts with humane blood* ■ doubdefs inthis, as in many other things of the like nature , Cum tempore laxata eft dijctflina. The ancient difeipltne of the Church is through age grown feeble, and by liule and iittie, inilead of fitting our lives to the ftrict Rules of the Gofpel, we expound thofe Evangelical Precepts, in favour to the Corruptions of the Age we live in. This ancient GS" ' difcipline although almofl forgotten among the Laity, yet was wont heretofore to be j-rid.c.ufri- ft r j£iy dbfetved by the Clergy } but now it is almofl:, if not altogether laid afide by theic pirns, it bo- - - Th g j complains in the Life of Malchus |, After the Church ef Chrtjt bevan rio:& Canon, to be governed by Crnftian 1 rir.ces, jhe grew outwardly indeed, more Spleneud , but v.waraly, dtbisDifi.u Itfj ycrtuous. Xl V. {j i s n'ueftioned by fome, Whether the Law, at lenft the Civil Law, as it hath power of Whether the iif e nnd death, in fuch cafes wherein it foffers a private perfon to kill a Thief, doth fa £h permit far legitimate the Fad, as to make it altogether blamekfs? But this I cannot grant. For onlv, or ap- in the firft place, The Law itfelf hath not the power of death over ali its lubjecls for provcofthis every offence-, but for fuch Crimes only as defervc death. And very probable is the kind of inter- pj ni0n f Scotus,Tb?Z it is not lawful to adj'idge any man to death, unlefs it be for fuch fecuon. Crimes, as the Mofakdl Law punifhed with death •, with this addition only, or for fuch Crimes, as may be equally emballanced with them. Neither doth the knowledge of -the will of God, which alone can fatisfie the mind, concerning this fo great and weighty a matter, lo plainly clfewhere appear , as it doth in that Law of Mofes, whereby the Thief is not adjudged unto death. Befides, the Law neither ought, nor dually doth give unto any man a Right to put a Malefactor to death privately, though he deferve it, unlefs it Be for fome great and horrible Crime. Otherwife the Authority ofMagiftrates and Courts of Judicature would foon dwindle to nothing. Wherefore when the Law licentiates a man to kill a Thiel, it is to beundeiftood, that it rather tolerates, than approves of the Fad-, and that it acquits him only of the punilhment, but not that it gives hira a Right to do it. XV. From what hath been already faid, we may collect, that in two cafes fingle Combats SingleCom- ma y he undertaken by private men without fin. In the firft place, If the Challenger fhall UwfuJ VllCa 8 rant ms ^ c lveriary a licence to fight, and otherwife threatens to kill him immediately in cafe herefufe. In the next place, when aKing or a Magifixate fhall give licence to two Malefactors equally defcrving death, to try it out by Combat , whether of them fhall live : And he that doth fo, doth not fo rightly perform his duty as he might: For ic were much better, if he intended to fatisfie himfelf with the death of one only, to deter-, mine, which of them fhall dye by Lot. XVI- What we have hitherto faid concerning the'Right we hax-e to defend our Perfons and Of Defence in Goods, belongs principally to private War, yet fo, as it ought alfo to beapplyed to a a publick pnblick,fome refpeft being had to the difference that is between them. So faith Ammiann?, lib :•>. To all that are Invaded by a Foreign Tower, there is but one Law, and that perpetual; namely, i .•: . 5 . by all poffible means to defend their own fafety, notwithstanding the force of any Cuftom. For as Alexander in Herodotus told his Souldiers, He that is the Aggrcffor, hath no colourable excufe for his lnjufiicc : But he that defends himfelf only, gathers Courage from a goodConfeier.ee, and fortifies ins hopes in this, that he doth not infer an injury, but repel one. Now in a private War, this Right of killing another, is but tnomentany, and determines as foon as the matter may bs brought before a Judge. But in a publick War, which beginneth not, till Jufticc and Judgement ceafe, there this Right lafb long, being fomented and perpetuated • by fuch accidents, damages and wrongs, as are every day renewed in the profecution of the War. Befides, in a private War, we have fcarce any other end, than our own de- fence: But the Supream Powers have aRight, not only to defend themfelves, but to be .-.verged on others-, whence it is likewife lawful for them, not only to' refill certain and p'refen't dangers, but to prevent fuch as feem to threaten afar off: Not directly, for that v „ ( as 1 have already faid ) were In juftice ; but indirectly, by revenging fuch wrongs as wheno ivto are already begun , although not fully confummate -, concerning which, we fhall have curb the ' canfe tofpeak anon- p. •• r f a Neither can we approve of that which fome Authors do affirm for truth •, namely,That Neighbour by the Law of Nations, it is a fnfTicicnt ground of a Juft War, to fupprefs the over-fwel- rniiccm.uw- ] in gp 0W er of fome ambitiousPrir.ee, who if let alone, may exceedingly annoy us. j ''. Gent. That in our ordinary Councils of War^thisufually comes in debate, I grant. But notfo 'i-j.i.c. i.. much under this Notion, becaufc it is Juft, but as it is profitable : So that in Gdfc the War for — iC h a p. i. Of a publick DcfcnfiVe War. . . yj (for other c.mfes be Juft •, for this caufe it may prudentialiy be undertaken : And this is all that the Authors before cited do in effect fay. But from a meer poffibility, that we may hereafter luffer wrong, to conclude a preient Right, or a neceffity of doing wrong, will prove no good Inference in a Court of Equity. For all humane affairs are obnoxius Bil. lib. g. it to fo many contingencies, that po fecurity can be expected in this life. Againft all u^rtr.divij. certain and Ignote dangers, our fafety confifts not in our Arms, but in our Innoxious prudence, co operating with the Divine Providence. Nor lefs unfatisfied am I with their Reafons, who affirm, That their Defence is Juft, XVIII. who have given an occafion of a Juft War. Becaufe, fay they, There are very few that £ efenc ^ '"' will be contented with fuch ameafureof revenge, as is proportionable to the Injuries g"ve n aS ; u ft ,e they have received. For this very Fear of what is to come, being uncertain cannot caufe of War juftifie us, in the defence of Injuries already done. For fo, the malefactor may juftifie his unlawful, refiftance of the publick Minifters of Juftice, by his fear, that they will inflict a greater punifhment upon him, than his Crime deferves. But he that gives juft caufe of offencej ought in the firft place to tender fuch fatisfaction, as in the judgement of unbyaffbd men, is equivalent to the wrong done -, which if refilled, then is his defence Juft. Thus i Kings 1 8. did Hezskjab, who for breaking the League which his Anceftors had made with the Kings 7> 14.&C.19. of AJfyria, being threatned with War, confeft his fault, and promifed to pay whatfoever the laid King fhould impoie upon him ; which being done, when notwithstanding he was afterwards Invaded with a powerful Armv, trufting to the Juftice of his Caufe, he made his defence, and had the Moft High God for his Protector. Pontius Samttis after he had made reftitution to the Romans of their Goods, and delivered up the Authors of the War, pleads thus with them, We have I hope appeafed the juft wrath of Heaven againft us for our bre.ich of the League, and am confident that the fame Incenfed Deities , who have cottftrained me to ma\e full reftitution of whatfoever we have formerly taken away from the Ro» mans , will alfo plague the Romans for defpiftng the expiation we offer , for the breach of fi> Infolent a League. And by and by after, What more, O ye Romans, do 1 owe to you, or to your League^ or to the Gods, that are the Impartial Arbiters of Leagues ? To whom ft] all I Mpeal? Whomwillye accept of to judge of the Caufes of your Anger, and of the meafuresofmy Juffirings ? J refufe no people, no perfon. So when the Thebans had offered to the Laced&- monians, all the fatisfartion that in equity they could require , and were by them reje- cted ; Ariftides told them, That the Juftnefs of the War was thereby tranflated from the Lacedamonians to the Thebans. The like we read of the Switz.ers, who in revenge for aLoad of Sheepskins taken from a Merchant of theirs , by the Earl of fymont , having fpoiled his Countrey, did afterwards ( being threatned by the Duke of Burgundy ) offer toreftore all they had taken from the faid Earl, and to give what further fatisfaction the faid Duke fhould require : Therefufal of which offer, coftthe Duke his life, and the lofs of almoft all his Jewels and Treafure, as Comines teftifies. Lib. 5. ch. r, ] CHAP. 78 Of Propriety, its (Beginning and Growth. BOOK II. CHAP. II. Of fuch things wherein Men have a Right in Common. I. The dividon of what we call Ours. II. The original and growth of Propriety. Gen. i. 29,30. 9- 2. Dt fitibiu I. 3. • fie. l.n I. The divifwn of that which we call Ours. II. The Rife and Progrefs of Propriety. III. That fame things will not admit of Pro- priety , as the Sea, taken univerfally, or as to its principal parts-, and why. I V. Places not Inhabited are the firfi occu- piers ; unlefs in the generality it belong to fame one people. V. That Beafts, Birds, and Fiji) are the fi'fi occupiers , unlefs by fame Law re- firaincd. V I. That there remains a Right in Common to the ufe of things properly our own , in times of neceffty , and whence this ari- feth. V 1 1. But not, in cafe that necejfty be other- wife avoidable. VIII. Nor if there be the like veceffty in the poffeffour. IX. The things fo ufe d, to be reft or ed as foon as we are able. X. An Example of this Right in War. X I. In things properly ours, there may be a Common Right, if thofe things bring pro- fit unto others, without any detriment to our felves. XII. Hence arifeth a Right in Common to a running Water, which if not ufed, is up. XIII. That there is a Right to pafs either by Land, or through Rivers. This explain, ed. XIV. Whether Taxes or Tolls may be int. pofed on Merchandifes carried from place r» place. X V. That there is a Right toftay or fojournin any place for a while. XVI. That there is a Right of habitation ap- pertaining to fuch as are banijhed their own Countrey, fubmitting to theprefent Govern- ment. XVII. A Right to inhabit defart places, how to be under food. XVIII. A Right to fuch ails or things, without which men cannot conveniently live. X I X. A Right to buy things neceffary. XX. But not, to fell their Commodities. XXI. A Right to contrail Marriages : Ex- plained.- XX II. A Right to do fuch things as are permitted to all firangers prsmifcuoufly. X X 1 1 1. Which is to be under ft ood, of fuch things as are permitted by t(?e Law of Na- ture, but not of fuch things as arc permitted out of Grace and Favour only. XXIV. Whether it be lawful for one people to contract with another, That they fiall not fell their Commodities to any other Na- tions, but themfelves only. I Hat War may be undertaken for Injuries not done, we have feen proved. Now it follows, that according to the order we propofed, we difcourfe of the Second Branch of the canfes jollifying a War, namely, for Injuries actu- ally done. And herein, firft of Injuries done againft that which is ours: Now of that which is ours, Some things are ours by a Right common with all Mankind, , and fome things are ours, in our own particular Right. We mall begin with that which is ours in common with others. This Common Right is either directly in fome Corporeal thing, or to fome Acts. Things Corporeal are either fuch as do admit of no propriety, or fuch as properly belong to fome perfons. Of things whereof there is as yet no propriety, fome there are that cannot be impropriated, and fome there are that may. Now that this may be rightly underftood, we mult fearch into the rife or be- ginning of propriety, which Lawyers call Dominion. Aln.ighty God,as foon as he had created the World.,did immediately confer a Right ge- nerally to II mankind in things of this Inferiour Nature. And fo again when he had renew- ed the • rid alter the Flood, as may be feen Gen. 1.29,30. and6V».9.2. All things at firji (fail! it in were promifcuoufly common and undivided to all, and as it were one inure Patrimony bequeathed unto all. Whence it came to pafs, that every man did catch whatfoever he would to . own uio, -and confume what could be confirmed. And the free exercife of this Univci prf Right was then inftead of Propriety '. For whatloever any man did thus catch unto 1 mieif, no man could take from him without injury. This may be very fitly illu- ftraWd by that Simile which we find in Cicero concerning a Theatre, which we know» a pub Hi dace, and common to all that come; yet may that particular place which I poffefs be right- ■we. There are Seats that are common to all Roman Knights, but that among ft them is mine own, faith Seneca, which I actually pojfeft. Which ftate of things might very well kited, had men either perfiftcd in the fame inoffenfive fimplicity, or could they have embraced each other with the fame mutual endearments of charity. An experi- ment Chap. ii. Of the 'Beginning and Growth of Propriety. j& rnentof the former we h?.ve in fome people of America, who have continued ia that A Cenirau, happy Communion fcr many ages, with admirable fimplicity : And for thofe that lived nit y c^aii in the like Communion, through Chanty, we have the like precedents in the Effeni, and thln S s * in the Primitive Chriftians at JernfaUm^ and their followers, the Pythagoreans ; 'and now cdi.i. %, 1 c." alio in not a few, who lead lives purely Monaltical. The nakednels wherein our mil adfimm. Parents were created, did fufficiently evidence their fimplicity, which conlllted rather p6r P h y- 0'og. in their Ignorance of Vice, than in their knowledge of Vertue : As Tragus ceitifies of Uat ' the Scythian. The men of the firft age (faith Tacitus) were free from inordinate affections, the Si I' ' untainted with wickednefs^ clear from any thing that might oc capon reproach-, and confidently ryofthefirtl" without reftraint or punifliment. Thus [Seneca alio teltifies ol them , They were, laith he, -ge,.whereia ignorantly Innocent : And afterwards, fpeaking of the four Cardinal vertues, he adds, iz conll ft«l- Some refemblances of all thefe, there were in that plain and fimple life they led : As having their. ?' 9 °' minds difiralled with no manner of Cares : As Jofephtu teltifies. And to the fame purpoie writes Macrob'ms, At the firfi the Conversion of men was with fitch an Innocent Simplicity^ as had no commixture at all of evil in it, being altogether unacquainted with that guile and fubtilty that now ragcth in the World. The Wife man terms it Sincerity •, and lb doth aoWrf*. St. P.ihI, Eph.6.2^. and fometimes it is called finglenefs, which is oppofed to craft and Wi(a. 3. 2 ' 4 - fubtilty. They then made the worlhip of God their only care, which was fymbolized by mu*w0li vr , and - E * when he tells US, That God made man upright, that is. Simple, but he hath found out many fignined. Inventions : Which Philo expounds, Many fubtle Devices ; Which, as Dion Prnf&cnfis ob- Eccl, 7. 29. lerves, were no whit to thofe that fucceeded to our firft Parents, advantageous as to Life; For they made ufe of their Sagacity notfo much to forttfie themfelves with Jujtice and Temperance, m to corrupt themfelves by voluptuoufnefs. Thofe molt ancient Arts, as the Tilling of the Earth, and the depafturing of Cattle were firft exercifed by the firft brethren, not without fome kind of diftribution of the Fruits. This diverlity ot Arts begat a kind of Emulation, and this ended in Murther. And afterwards, when by Converfation the bad infccled the good, there grew up a Race of men, who for their violence and oppreflion, were T)le . < called Gyants •, which the Greeks called XH&Jir&y becaufe they obferved no other rule thcGiants° l of juftice but their own ftrength, and therefore thought all to be their own, which they could conquer. But the World being cleanfed from blood and rapine by the Deluge •, Lull, inflamed with Wine, fucceeded to Cruelty, and brought forth Incelt, and fuch like unnatural Coitions. But that which efpecially blew the Coals of difcord among Prinees and Nations, was that Herokk Sin of Ambition, whofe Emblem was the Tower of Ambition, Babylon; whencethe divifion of Tongues caufed their difperfion intofeveralCountreys-, Gen. 13. fome polfefling one part of the Earth, and fome another. But yet ftill among Neigh- bours there remained a Communion not of Cattle, but of Pafturage •, for lb large a pro- portion of ground ( being but thinly peopled ) might without any Inconvenience, fuffi- ciently fupplyall their neceffities. To marhtheir own, and trench out tthcrs Land ... . Was not yet Lawful. Until at length, the numbers both of Men and Cattle encreafing, the Land alfo became fub-divided, not into Nations and Provinces as before, but into fingle Families. And whereas in dry and fandy regions, Springs though very neceflary, yet were not able to G ™' ' *" fupply a multitude •, Therefore did every man ftrive by taking the firft polfeflion of them to make them his own. All thefe things we may trace out of the Sacred ftory, where- unto we might add the concurrent Teftimonies both of Philolbphers and Poets, who have treated of the firft ftate of things held in common, and of the fubfequeut diftribution of them, but that I have done it elftwhere. From hence we learn the true caufe why men de- MaiUbtrt parted from thatPrimitiveCommunity ofthings,firft ofmovables,and afterwards of immc- c. 15. vables : Namely, becaufe repining to be at Natures bare allowance, that is, to feed on Roots and Herbs, to make their habitations in Caves, to go naked, or clad with barks of Trees, or Skins of Beafts (as the Scritefnni defcribed by Procopius did) they made choice ol a more CeU 2c delicate kind of living, which would roquire induftry, which every particular man was in every thing to ufe for himfelf. Now that the Fruits of the Earth could not beconveni- • ently go Propriety introduced, and how. Of the Sea. BOOK II* truly laid up or difpofed of in common, will eafily be granted •, Firft, by reafon of the vaftdiftanceof the places inhabited, the one from the other. And Secondly, becaufe of the great defect of Love and Charity among men : By reafon whereof, no due equality could be obferved, either of Labour in their Acquifition, or of Temperance in 'their Confumption. And from hence we may further learn , for what caufes things were re- duced into Propriety: Not by thefoleaft of the Mind ; for no one man could pcflibly . know what another would have to be his own, that he might forbear it. Befides, poflible See as to this . £ .^ ^^ c jj ver f e men might be competitors for one and the fame thing. But things thehonour*of became proper by compact or agreement, and that either exprefs, or by partition *, or the Etglih tacite, as by preient occupancy : But as foon as experience had taught them the incoa- Nation,s?WM veniencies of holding things in common, and yet before Divifion was firft inftituted, hath traduced ■ ■ probable, that they unanimously agreed, That what every man poffeft at that UntO US Ollt Ot n •',*..,. ' tV ,,. rr^/ J I r I III the Gemara time mould be his own. 1 lius Cicero, To the end that of what nature had made common, and the Al o- each man might call fomething hit , it wot agreed, That look^what every man had in pojfeffion, he ran, in his might hold as his own. Ana in another place f, It it generally granted, faith he, neither doth 'ihalafjocrt- nitnre berftlf envy it, That as to things appertaining to life, Quifqne fibi malit quam alteri \DtSnib.l. 3. acqtliri • Every man hud rather enjoy them himjelf, than that another jhould have them. Where- unto we may add that of Qmntilian, If this be the ft ate and condition of things-, That what- foever is iff til to Men, belongs pr overly to him that pofftffeth it , then furely whatsoever is juftly ours, cannot juftly be taken from iu. Which very thing Cicero illuftrates by a Similitude borrowed from Chryftppwotarace, Vbi currendo licet adverfartum vincere, no'n dctrudendo ; Wherein a man might overcome his adverfary by running, but not bydetrufron. This was mCe Solon's wilh, Riches I fain would have, but if ill got ( Let them be nere fo great) J wijh them net. And when the Ancients {tiled Ceres the Lawgiver, and called her holy Myfteries Thef- mophoria, they doubtlefs infinuated that the divifion of the, Earth into Corn-fields, was as it were, the Creation cl a new Right. For as an houfeor field unoccupied is common, but if poffift, the poffeffors. So the Earth is divided into feveral parcels, that each man may till, and hold his own. 1 1 1. Now thefe things being admitted, we fay, That the Sea, confidered either Univerfal- That fame ly, or as to its principal parts, cannot be held in propriety by any : This, becaufe tUingswill granted by fome, as to private perfons only, but not unto people or nations, I fhall en- Propriety- as deavour to prove, firft, by moral reafon. For thexaufe that moved men to decline their theSea, taken tenure of Lands in common, doth not at all hold in- the Sea, which being fo vaft and Univcrfally. boundlefs, and Ships and Men thereon implcyed, fo few, mult needs, be abundantly fufficient to all nations, and for all tries*, whether for Water, Fifliing, or Navigation. The very fame may be faid of the air, if any fuch ufe could be made thereof • where- unto the ufe of the Earth under it were not necefiary *, as in the fport of Hawking, and in the Right of Habitation *, both which do receive Laws from him who is the Lord of the Soyl : For as Pomponuts obferves, Tarn Soli quam Qmli menfur a f acienda ejt : And again CajtMj Cujus eft Solum ejus eft 11 1 que ad Ccelum ; Whofc'is the Soyl, his is all that isabove.it, even unto Heaven. The very fame may be faid of Shelves and Quick- fands, where no- thing can be made to grow, and whereof there can be made no other ufe, butto ballalt The Ocean ships, and whereof there is fuch Itore, that it cannot pofiibly be exhaufted* There isal- notboun e . fo a Natural reafon, why the Sea fo taken, cannot be held in propriety : becauic Occup.i- tio non procedit nifi in re terminata ; Nothing can be faid to be poffeft , that is not bound- ed. Hence it is that Thucydides calls Land unoccupied , Lands unbounded : And Jfscrates, of fome Land occupied by the Athenians, faith, That that Land is by us bounded De ginir. 1.2. and limited. Now drift atle tells US, That Liquid things cannot be contained within their c-2- own bounds. And if fo, then they cannot bepofleft, unlefs they be contained in fome- what that is folid and comprehenfive of them *, as Ponds, Lakes, and Rivers are theirs properly whole the Lind is, wherewith they are embanked. Now the Sea cannot pro- Greater than pcrlv be faid to be contained in the earth, being equal to it, Nay greater than the Earth, the Earth. as j llrc l JAS \n Philoflratm thought of the Ocean: And therefore the Ancients held that Ws. 3. c, 11. the Sea did contain the Earth. What (faith Gellius) can be faid to be about the Ocean, when the Ocean doth every where circumfcribe, and encompafs the Earth ? And a little after, Since that every where, and in all manner of ways it flows about the Earth, nothing can be faid to be ■ about it : But all regions being entrenched and environed with its Waves, whatfocver is cnclefed within thebrinks of theOcean, are in the midft of it. So likewife fpeaks Livy of the Ocean, O-.i orbem terrar.im ample wit finit *, Which encircles with its Waves the terreftrial "lobe. Seneca calls the. Ocean, Vinculum totius orbit, ciftodiaque terrarum- The bond or ligament of the earth, and thefifeguardofthe Nations. Neither is a divifion of that vaft body of Wa- ters Chap, i i. Defarts, 'Birds, Wild Beafts, Fifr, wbofe they arc, 8 1 terstobe imagined : For when at the firft, Lands were divided, the Sea, at leafbj the greateft part thereof, was unknown-, and therefore no means can poffibly be invented whereby the nations fo far diftant fhould agree about the divifion of that which they know not : wherefore it is probable, that what then was the Common Right of all, and in the firft divifion was left undivided, is not now the proper Right of any, either peo- ple or perfon by divifion, but by occupancy, neither can be divided until they have firft been occupied. Let us now defcend unto fuch things wherein we may have a Right of Propriety,though I V. as yet we have none: Such are many places which are as yet defart and unoccupied ; h'l ces !i 10tln ° Iflands in the Sea, Wild Beafts, Fifh, and Birds. Concerning which, two things are hL that firft obfervable - , Firft, concerning places unpeopled : There is a two- fold Right of the occu- pofieffeth pancy of Lands, the one Univerfal, or of the whole ; the other Partial, as that of Man- them, nors and Farms. The former is ufually gained at the charge, and for the benefit of the Common-wealth, or of him who hath the Soveraignty over the people : The other by private Lords or Farmers, which is done, rather by aflignation from the former, than by any free and unlimited occupancy. But in cafe there beany part or parcel of that Countreyorlfland, ( fo univerfally occupied ) that is not yet affigned to particular per- fons, it is not therefore to be reputed as wafte, but it is ftill fuppofed to be in the pof- feffion of the firft occupants, be they King or People. Such are ufually Rivers, Lakes, Ponds, Woods, fteep Mountains, and the like. Secondly, As to Wild Beafts, Fifh, and Birds, thisistobeobferved, That he that hath V. the dominion over the Lands and Waters, may by his Laws interdict others from taking Bir yetic naturally might be acquired . ™y J°»» J Let us now examine, Whether in what is properly ours, there may yet remain a Right t h e Law of in Common to others. Which queftion may by fome be thought ftrange, confidering Nature leaves that Property feems to fwallow up all Right, which was at firft held in Common. But Frce - it is not fo ; for our better underftanding whereof, we muff, look back to the true mean- . v I- ing of thofe who firft introduced particular dominion : which may be prefumed to be In "J?*, *, fuch as did (as little as might bej recede from natural equity. For if even our written improperly " Laws oblige usbut to a Quatenut fieri potefi; To what in natural equity may be done (asap- ours, maybe pears by our frequent Appeals from our Statute, and Common Laws, unto our Courts common to o- oi Chancery:) much more may our Cuftomes admit of fuch an expofition, which are not th?rs- fitted to Words and Syllables. Hence then it follows, that in cafes of extreme neceffity that ancient Right of ufing every particular mans goods, as if they remained yet in Common, ftands in force: For as in all humane Laws, foin this very Law of Dominion, cafes of abfolute neceffity are generally excepted. Hence it is, that in Navigation, If in Navigati- the Common ftockof Viftuals befpent, what every particular man hath is held as Com- on. mon. So in the cafe of Fire, If I cannot otherwife avoid it, I may pull down my neigh- In thc cafe of bourshoufeto preferve mine own : And on the Seas, If my Ship fall foul, or be intan- Fire, gled with another, I may cut their Cables to free my felf. All which are not Introdu- ced, but expounded by the Civil Law : But this (as Vlpian tells us) never holds, unlefs it be in cafes of extreme and manifeft neceffity, where this cafe is added of the blowing up of another mans houfe to fave mine own. For even among Divines, it is a received opi- nion, That in a time of abfolute neceffity, if a man fhall take away from another that without which he that takes it cannot live, he doth not commit Theft : Not, as fome think, becaufe it is to be prefumed, that the right owner by the rule of Charity, is bound to give it to him that fo wants it ■, but, that it may be prefumed, that the reducing of things originally Common into private dominion, was to be underftood with fome grains of allowance in fuch Cafes. For if they that firft divided fuch things, had been demand- ed, What they would to have been done in fuch a cafe, they would certainly have been M of 82 FreeTajfagebyLandorSca. BOOK II. of this mind. Ncceffity ( faith Seneca the Father) being a moft benign Patronefs to humane frailly, will not be bound up by any Law, i. c. Humane, or that is made after the manner of Hu- mane Laws. Qnicquid coegit, defendit ; Wharfoever it commands, it alfo defends, faith the fame Seneca. In a Storm it disbnrthens the Ship with the lofs of the Goods, in a Fire it quenchetb Tkilip 1 1. the pane with the mine of the Fabrick : Ncceffity is indeed the Law of time. Thus Cicero, Caf- f us (l.i i til he) faffed over into Syria, another mans Province : If men might freely enjoy the be- nefit of our written Laws , but thefe being by Arms fuppreft into his own Province by the Law of Nature. So Curt ins, In a common calamity every man mufi bear his portion, and be content with the fortune that befalls him. VII. But fome Cautions ought to be admitted, left this Licenfe ftray too far, thefkftwhere- Eat not if the of is this , That all ways and means are in the firft place to be tryed, whether this necef- neceMity be fey ma y ^ e ot j Krw if e avoided, that fo it may appear unto all men that this neceflky is voidable? *" extjceme "• As we fliould firft make our application to the Magiftrare, and try whether he will relieve us ; then to the owner of the Goods, whether we may by entreaty obtain that which we ftand in need of. Plato would not permit any man to require water from another's well, that had not dug for water in his own grounds, itfcjtte adcretam, even till he came to chai\, but could find none. Solon required that lie fliould dig forty Cubits in his own Lands, whereunto Plutarch adds, Subveniendum neceffitati, non inftruendum pigritiam ; It is fit that mens necefiities Jhoitld be relieved, but not that iJlenefs (J:ould be encouraged. And Cyr. ixptd. /.$. it was Xenophon% plea to the Sinopenfcs, Wberefoever we are denyed the common right of buying necejfaries, there, whether from Grecians or Barbarians, we will take them by force, yet not cut of pcrverfenefs but ncceffity. VIII. 2. This is not to be allowed, if the right owner be preft by the like neceflky, for when Nor if there the cafe it eqiull, Poffidentis mclsor eft conditio *, The condition of the prefent Occupant is to be be the like ne- preferred. A wife man will rather dye (faith Latlantim) than be unjnft : Pie will not dtfpoffefs ccliity in the the Skipwrackt of: he plank he befrrid.es, though he might thereby fave his own life; nor unhorfe his * ^Laclunt.'lX wounded Comrade, although by betraying his life, he might five his own. Will not then a wife c. 17. man (faith Cicero) being famifiied with hunger, take away meat from him whom he knows to be Off. 1. i. good fur nothing! No furely, for life it felj is not dearer nnto me, than this refolittion of mine, Neminem ut violent commodi met gratia, Not to injure another to benefit my filf. So Curtius, Alclior eft caufa fitum non tradentis, quam alienum pofcentis ; For better is his condition that gives not what is his own, than his that requires that which is another mans. ,xf Thirdly, When the danger incumbent is paft, restitution is to be made, if we are able; Thin ' tllus Some there are that think othenvife, being fwayed by this argument, becaufe he that taken are to ufeth his own right only, is not obliged to reftitution. But to fpeak truly , this right is be reftored not his own fully and abfolutely , but reftrained and clog'd with the duty of reftitution, when we are vv j 1cn t h at necellity ibalLceafc ; for fuch a limited right fufficeth to preferve natural equity, ' againft the rigour of abfolute dominion. X Hence we may collect, By what Right he that wageth a Juft War, ma,y lawfully furprile An example ai "'d hold fome ftrong place in a Country that is at peace with him , being but weakly of this right guarded - , that is to fay, if there be no- imaginary but a certain danger that his enemy in war. n iay polTefs himfelf of it, and thereby do him an irreparable damage, elpecially if nothing be taken but what is neceirary for his own Security : As namely , the bare cuftody of the place, lea; ing the jurifdiclion and profits thereof unto the right owner. And Iaftly , If it be clone with a full purpofe to reftore even the cuftody of the place alfo, as foon as the thy I. 2.4. neceflky of keeping it for his own indemnity fliall ceafe. Enna, faith Livy, was detained either by fraud or out of pure ncceffity : For whatfoever here doth in the fmalleft degree de- cline horn neceflky, is injury. The Grecians that flood in great danger for want of Ships, Detxpsd. Cyri by the advice of Xenophon, feized fuch as palled by, yet fo, that the Goods werepreferved lib. 5. entire for the Owners, and the Seamen well fed and paid. The Firft Right therefore, that fince propriety was introduced, pleads for exemption, is this of Necellity. XI. Thenextis, That of Innocent profit. What jhould hinder w (faith Goref , from commit- In cafes of in- nicating with others, when we may do it without any detriment to our f elves, efpecially in thoje things nocent profit, that are profitable to thofe that receive them, and not damagable to its that give them ? Seneca will t De off 1. 1. nct ac j m ; t f this to be a courtefie, to kindle a Coal at our Fire, or to light a Torch or PI bm<\. lib, A. ^,111 r,;; n r ■ a i 1 a Candle by ours: Plutarch accounts it an ail of impiety, to cafl away what we cannot eat, to feal up a Fountain when we have drank^our f elves full, to remove Land or Sea-marks which have been if ful unto us: For, faith he, in thefe things after that we have fatisfied our felves, every man hath a common Right. So a River, as it is a River, is the propriety of thofe people whofe the Banks are, or his, who hath the Soveraign Power over them, in whofe power it is to make Dams or Mills in it, and whailbever is bred in that River is his : But that River as it is a flowing Stream remains common, every maaimh a Right to drink or to draw water out of it, as well as he that owns it. Qiiis Chap, i i. Free Tajfage by Land or Sea. Quis vet at appofuo lumen de lumine fumi ? At que cavitm v aft as in marefervet aquas ? Who at his Torch, light to a Torch denyes ? And wh^ would engrofs the Seas vaft Cavities ? ; faith Ovid , who alfo brings in Latona thus befpeaking the Lycians : Quid prohibetis Aquas ? ufiu communis aquarum. Why water £yc deny ? Whofe ufe fliould common lye. Where alfo he reckons water among thofe publick Gifts that Nature bellows upon all men ■ alike, the word Publick being improperly taken, in which fence fome things are laid to be publick by the Law of Nations : Virgil tells us the water is open and common to all, as well Strangers as Natives. Thus both Lands, Rivers, and fuch parts of the Sea as are held by any Prince or Peo- X 1 1 1. pie in propriety, ought to lye open and free to all fuch as have occafion to pals over them A right to tra- upon any juft and lawful caufe^ as namely, either becaufe being expelled their own, they vel s by Land feek after fome other Country that lyes wafte, or becaufe they defire to traffick with fome mo/to all™* people remote from them •, or even becaufe they feek to recover what is their own by a juft war. The reafon is the fame here as above, becaufe it is very probable, that dominion was introduced at the firft with this limitation, that fuch things fhould remain in com- mon ufe, which might be profitable to fome and not hurtful to others : And therefore the firfl Authors of Propriety are conceived to have thus agreed it. A fignal example whereof we have in the Hiftory of Mofes, Numb. 20. 21. who being to march through the borders N , of the Edomites and Amorites , offers thefe Conditions , That he would travel only through their high-ways, without trefpaffing upon any private mans pojfejftons ; if he had need of any thing that was theirs, he would pay the juft price of it. Which being rejected, was ground fuffici- ent for that War which he made againft the Amorites • Whence St. Auguftin thus, An mm- . cent paffage was denyed them, which ought by the Laws of humanity to lye open and free to all who MwS/c ao require it. Whereupon St. Auguftin concludes, That the war made by the Ifraelites againft the Amorites, was juft. Hercules flew Amyntor King of the Orchomemans, becaufe he denyed Apalltdor. him a free paffage : So did the Grecians make War againft Jofephus, becaufe he refufed to give them leave to pafs through the borders of his Country. Thus alfo do the Grecians, s Jj hol *tf-'> t . which were under Clearchus, plead-, We (fay they) are travelling towards our own Country, crnidJam!""' peaceably, if none moleft us ; but if any fliall hinder us, we will endeavour by the affiftance of the Gods to force our way. So like wife Agefdaus returning out of Afia, when he came to Troas, demanded, An m Amicumfe an ut hoftem tr an fire mallent ? Whether they defire d that he (hould Pint. Agf. pafs through their Country at a Friend or as an Enemy ? The like demand was made by Lyfander to the Boeotians, Retlis fe haftis fe tranfire vellent, an inclinatis ? Whether they would have him to pafs in a peaceful or in a warlike pofturel Thus do the Batavians remonftrance to the Bon- #/?, ^ . venfes in Tacitus, If none oppofe us, our march fliall be innocent ; but if we findreftftance, we will force our paffage with our Swords. Cimon carrying Succours to the Laceddmonians, led them through the Territories of Corinth ; and being blamed by the Corinthians, that he had not i, eave t0 (,<> firfl: acquainted the City with his purpofi?, (lor they that knock at other mens doors (fay firfl asked. they) enter not but by permiflion) returns this anfwer, But ye (faith he,) have not knockt at the doors of the Cleonxans and of the Megarenfes, but have broken them open : Cenfentes om- nia potere debere plus valentibus, Conceiving that all places ought to lye open to the ftrongeft. But the moft moderate opinion is the belt : Leave is firfl to be demanded, according to that of Ariftophanes, Whilli toward Delphos we our Army lead, Firft from Bceotians we free paffage crav'd. But if it be denyed, then may our paffage be juflly forced by Arms: When the Germans which jfde- and the French made war one againft the other for Mar anus, the Venetians gave free pailage nyed may be to them both, whereof when the Germans complained, they were anfvered that they forced, could not hinder it but by Arms, which it was not their cuftom to ufe, but againft their publick Enemies. Age films in Plutarch returning out of Afia, and demanding free palla^e Pir , lti ^ for his Army through Macedon, was anfvVered by the King that he would confult about it': u. WhereuntO Agefilaus replyed,- Conjultet nos inter ea intrabimus, Let him confult ; and we in the mean time will enter. Neither may it be juflly objected , that the multitude of thole that M 2 are 84 Free Tajfa^e by Land or Sea. BOOK II. are to pafs, may give jult caufe of fear ; for Jus meum metu tuo non tollitur. My Right is not Remedies a- taken away by thy fear : And the rather, becaufe there are certain Remedies provided gainft this againft tins fear •, as that they (hall march in fmal parties, that they (hall march unarmed, tear * or that they (hall give fecurity to repair all damages that (hall be done , which was requi- red from Ifacius for his paflage through Germany, (which cuftom, as Strabo notes, was anciently obierved in the Country of the zyfieans) or that he through whofe Country the Army is to pafs, may at the charge of him that demands leave, hire fufficient Forces to guard his own Subjects •, or that Hoftages may be given, which Seleucus required of Deme- trius, to fuffer him to ftay a while within the borders of his Empire. Many notable Cau- tJicttas l. 2. t [ ons anc ] Remedies we may read of in Nicetas, made and agreed on by Frederick,Barbarof- De bill. Gall, fe> an ^ V*"'" Angelas, concerning the free paflage of an Army : Yet C&f'ar we read deny- lib. i. ' ed the Swuz.ers paflage through his Province , becaufe he believed them to be a people fo rapacious that they could not abftain from acls of violence. So likewife neither is the fear of him, againft whom he that craves paflage makes a juft War , any fufficient reafon to deny paflage : Nor is it fufficient to fay he may pafs fome other way , for fo may any other (ay , and confequently by that means all right of paflage (hall be taken away. But it is enough that without any fraud or ill meaning, paflage is demanded the neareft or mod: convenient way •, yet certainly if he that craves paflage do make an un- >uft war, or (hall lead with him fuch as are mine enemies, I may deny them , for it is law- ful for me to meet him even in his own Territories, .to intercept his paflage into mine : Neither is there only a Right in common due for perfons to pals to and fro about their lawful affairs, but for their merchandifes ; for to hinder any one Nation from maintain- To hinder * n S commerce and traffick with another that is remote from them, is unjuft. For that this traffick with freedom may be admitted and maintained, is for the common intereft of humane fociety, remote Nad- neither can it bring damage unto any : For although a man do fometirnes fall (hort of that onsisunjuft. g auii wmc h was not due, but hoped for only, we ought not to regifter this among the number of our lofles. To thefe Teftimonies which we have already produced to this In legations ad purpole, we (hall add this one out of Philo, Merchants Ships do fail over the Seas without dan- Cajuni. g ir-) Wlt [j fab (j ods as Nations , oM of a defire to participate of each others Commodities, do carry for exchange, whilfi they mutually relieve the warns of the one, with the fuperfluities of the ether. And another out of Plutarch , who concerning the Sea, fpeaks thus , Our life, which is other wife wild and unfit for commerce, this Element perfetls and makes feci able, J apply- ing whatfoever is wanting in one Nation, out of thefiores of the other ; and by the exchange of Merchandifes , contracting a friendly confoctation. Wherewith accords that of Libanius, God, faith he, Hath not made any one part of the World, the Storehoufe of all his blejftngs 9 but hath wifely diftributed them through all Nations, that fo each needing another s help, he might there- by lead men to Society : And to this end he discovered unto them the Art of Merchandifing, that fo whatfoever any Nation produced, might be communicated unto others. And therefore Euri- pides reckons Navigation amongft thofe things, which humane reafon had found out for a publick good : So Thefeus fpeaks very pertinently, What, to one Nation, Nature doth deny, That, She from others, doth by Sea fupply. XiV. But a Queltion will arife, whether upon fuch Merchandifes as are thus tranfported ei- whether ther on Land, or in a River, or in fome fmall parts of the Sea, which may be called Ac- Tolls may be ceffes to Land, Tolls may be impofed by him who hath the Soveraign Power in that Land. Merchandifes And doubtIe k if f ucn Impofitions have no refpeft ro the Goods, there can be no colour ' of equity to impofe them on the Goods : As if a Tax be laid by the Pole upon Subjects, to defray the charges of the Common-wealth ; it cannot be required of Merchants, who pafs as Strangers. But if either for the better fecuring of their Merchandifes, or if for this among other things, the Prince (hall be at any great charge, then to recompence that charge, Tolls may be impofed upon thofe goods that (hall be thus fecured, fo that they be i Kin. i®. 28. not excefllve ; for hereupon depends the Juftice of Taxes and Tributes. Thus we read 12-14- that King Solomon received Tolls for Horfes and Linen Thred, paflingby the Syrian Ifthmus : So Pliny of Frankincenfe, that it could not be tranfported by any but the Gebanites ■, there- fore there was a Toll paid unto the King for them : So the people of Marfelles being ex- ceedingly enriched by a Channel or Trench, which Marius caufed to be made out of the Rhine into the Sea, impofed a Toll for all Ships importing or exporting any kind of Merchandifes, lib- 4. as Strabo notes. And in another place he tells us, that the Corinthians did by a very anci- tib. 8. ent cuftom^ require Toll for all fuch Goods as were carried over Land from Sea to Sea, ro avoid that dangerous paflage of Malea. The like did the Romans receive for patting the Rhine. Thus did the King of DenmarkjxzS. a quarter of an ounce of Gold, for every Ship pafling the Sound, and as much for the Lading, with fome other fmaller Sums to maintain Fires, and Barrels to guide Merchants, that they might avoid Rocks and Shelves, as . _ CO Chap, i i. Exiles admitted to cohabit with us. 8 5 as Mr. Cambden relates. Nay for pajfing over Bridges is Toll in fame places paid, faith Seneca. Tea and for pajfing over Rivers, as all our Law Books teftifie. But thefe Toils are fomecinKS very exceflive,whereof Strabo complains thus, Difficile eft ut inter validos & fcroces defivia- tur modus mere atari non gravis ; It is very hard to find amongft fierce and warlike Nations, fitch Jmpofttions as are not to the Merchants grievous. There is likewife a common Right for all that travel as well by Sea as by Land, to ftay XV. and reft for a while, in any Foreign parts, either for health or for any other juft caufe. A right in This being comprehended among things innocently profitable,, and therefore llioueus in common Vtrgil being forbidden to ftay on the African Shore, prefumed to invoke the Gods as Jjdg- ^ e es, and the complaint of the Megarenfes againft the Athenians for denying them admittance into their Ports, was allowed by the Gracians to have been juft, as being againft common fight, as Plutarch notes. The Shore is his that occupies it , and therefore they muft vit ' 1>er ' cl - needs be cruel who deny U6 things that are common. Hercules flew Laomedon for denying him the benefit of his Port : And the Lacedamonians thought no caufe of War could be more juft, than to be denyed the benefit of the Shore. And confequently it is likewife lawful to eretta little flight Cottage on the Shore for prefent (belter , not'withftanding that, we do grant that fhore to be pofleft by the people that are Natives : For whereas Ttmpenins requires an Order from the People or Prstor, to licenfe any man to ereft any thing upon the common Ihore or in the Sea, it is to be underftood of fuch Edifices, as are lafting and permanent ; whereunto tends that of the Poet, Contrail a pifces aqitora fentiunt, Jattit in altum molibm. Whilft Hills in Seas are caft, Fifo frighted from their Holds, doftandagaft. Neither may we juftly deny fuch Strangers as are driven from their own Seats, a right XVI. of perpetual cohabitation, whilft they fhall fubmit to the Government eftablifhed, and A right to in. to other things neceflary to avoid Sedition, which was very well obferved by the Poet, '"bit for fuch where he brings in *s£neas tendring thefe reafonable Conditions, . £ d a £ . ex P e! " Country. - ■ Socer arma Latinus habeto, Jmperium folenne focer. And Latinus himfelf in Halicamaffenfis adjudged and not rather that the Sea fi:ould overflow it, than to fujfer fuch deftroy- t*s %6 Tbe^ighttotrafficks to buy Necejjaries ; to Many. BOOK IK ers of the Earth to engrufs it, and to make no ufe of it ? But thefe general fayings, though true, yet were it) npplyed to the matter then in queftion : For thofe Lands did not at all lye wafte, bat ferved for the ckpafturing of all manner of Cattle belonging Livy I. 5. to the Souldieis, and might therefore juitly be denyed them. No lefs jult was XVIII. A right to fuch aits with- out which men cannot well live. Pericle. £,".87. that Query which the ancient Romans made to the Gallifmones, By what Right theyexailed Land [rem the Right owners, and in cafe ofrefitfal threatned War ? After the Right that is Common to things, follows that which is Common to fome acts : And this Right is granted either fimply, or upon fuppofition. Simply, This Right in Common is granted to fuch Acts, whereby thofe things may be acquired, without which we cannot conveniently fubfift. I mean not here, fuch a neceffity as jultifies us in the ta- king away of another mans goods : For we difcourfe not here, of things taken away a gain ft the will of the right owner, but of the means how to obtain things convenient, wkh the confent of the owner-, at leaft, that no impediment be given either by a publick Law, or any private Confpiracy : For in fuch things whereof we have fpoken, fuch an Impediment is repugnant to humane Society. Thus Plutarch concerning the Megarenfes^ T 1C ffi k " They bitterly complained-, that contrary to the Law of Nations, they were denyed trajfickj, and mohtoall. driven from all Ports which were held by the Athenians. What every Countrey abounds with, faith Seneca, is made known to all Nations., that all men might fee the neceffity there was of main- taining commerce among themfelves, in cafe any Nation did want what another Nation had* And again, Whutfoever any people hath, that doth Commerce give to all, and thofe ^ountreys that are difperfi and dtfl 'ant from each other, Trafflck_ unites and knits together. I fpeak not here, as to things fupevfluous or voluptuous, but of fuch only as conduce to the prefervation of our Lives, as Aliment, Veftments, Medicaments, and the like. To procure thofe things at an equal rate, every man (we fay) hath a Common Right; unlefs they from whom fuch things are required , do themfelves ftand in need of them : As in the time of a Common dearth we ufually forbid the tranfportation of Corn •, For, that the Natives fiould frfi be fed with the fruits of their own Land is but reafinable. And yet in fo neceffitous a time, the ftrangers whom we have once admitted, we can- not expel. For, Commune Malum communiter tolerandum; Common Calamities mufi be born in Common. But to fell their Commodities, it is not fit to allow every man the fame Right} For every man is free to prefcribe what he will buy, and what he will not. So the Belgians of old would not admit of Wine, and other exotick Commodities, to be fold amongft: them. The like Sr^ta teftifies of the Arabians, amongft whom fome things might be imported, and others not. By this right it is Lawful for the people of one Nation to contract Matrimony with the people of another •, efpecially, if being driven out of their own Countrey, they fhall come to inhabit another. For though fome men may live without the ufe of Wo- men, yet others cannot. They are men of excellent tempers that can content them, felves to lead tingle lives : And therefore to abridge them of the liberty of Marriage is an Injury offered to humane Nature. Romulus, in Livy, makes it his rcqueft to his Neigh- bours, That they would notdifdainby Interchangable Marriages to mix generations with them. And Canuleiiu in the fame Author pleads thus, We, faith he, require but lawful Wedlock^ which to Neighbour Nations and Foreigners is ufually granted. What is wijufily deny- ed, may by the right of War be juftly taken, faith Aug. Now whereas the Civil Laws of fome people do carefully provide againft fuch Marriages ; they feem to be grounded upon this reafon, Becaufe in the times when thofe Laws were made, there was hardly "any Nation or People but were fufficiently ftored with Women, or that thofe Laws werenot intended to interdict all luch Marriages, but fuch only as were Legitimate or Juft •, that is, which fliould produce fome fpecial effects of a Civil Right. Among fuch acts whereunto a Right in Common is given by fuppofition, we are to A Rightto do reckon thofe which a Prince or People do promifcuoufly permit to all ftrangers ; for that Nation Is injured which is excluded. Thus if it be permitted in any place for ftrangers to Hunt, Fifh, Hawk, gather Pearls ; If it be allowed them to receive Legacies, to fell Commodities, if (even where there is no fcarcity of Women) to contract Marriages,thefe cannot be denied to any one people, unlefs they have fome ways abufed their Liberty \ for which caufeitwas, that the reft, of the Hebrews denied to inter-marry with the Ben- jamites. But this is to be underftood of fuch Acts only, as are permitted, as it were, by ver- I mean fuch as tue of that liberty which nature gives, being reftrainedor taken away by ; oLaw: but by^heRighc n °t6f fiich as are indulged to any Nation as acts of Grace, difpenfing with the Laws; of nature, not F°r to deny a Courtelie is no Injury. XIX. A right of buying cecef- faries. C allied. I. 1. up. 34. XX. But not al- ways to fe'I. XXI. A Right to contract Ma- trimony. lib. 1. Tit Civit. Dei lib. i.e. 17. XXII. were permit- ted to all ftrangers. Judg. 20. XXIII. out of grace and favour, Another Chap, i i. Whether to engrofs all the fruits of one kind be lawful. 87 Another Queftion is frequently ftarted, which is this, Whether it be lawful for one XXIV. Nation to contract with another for all their Fruits of luch a kind, which are no where whether to elfe to be found, fothat they fhall fell none to any other Nation. This in mine opinion ^ngrofs all the may be lawful : If that people that mall fo buy them, be willing to communicate to others kind^Haw- at a reafonable price. For it concerns not other Nations much by whom they are fup- f u i. plied with their Natural wants, fo as they are fupplied. And it is lawful for any to anticipate others in matters of profit, etpecially if there be any fpecial caufe for it ; as in cafe the people making this Contract, fhall undertake the protection of the other people, and fhall for that caufe be at fome expence or charge. For fuch an Ingroffing made with fuch an Intent, as I have faid, is no way repugnant to the Natural Right ■■, although it be fometimes prohibited by the Civil Law, for the benefit of the Common^ wealth. C H A P. 88 Of Original Acquifition. BOOK II. CHAP. III. Of the Original Acquiiition of things ; where alfo of the Sea, and of Rivers. I. That things were originally acquired, either by divifwn or occupancy. I I. Other ways refuted as the conceffion of Right Incorporeal. III. As that alfo of Specification. IV. Occupancy two-fold, either of Empire, or of Dominion : This explained. V. That the Right of Occupancy, at to things movable, may by Law be prevented. VI. The Dominion of Infants and Mad-men, by what Right held. VII. That Rivers may be acquired by Occu- pancy. VIII. Whether the Sea alfo may be fo. I X. Anciently in fome parts of the Roman Empire, that was not lawful. X. But at to fuch parts of the Sea, as are In- cluded by Land on each fide, the Law of Nature doth not Impugn it. X I. How fuch a Right of Occupancy may be made, and how long it lafts. XII. That fuch an Occupancy gives no Right to Impede an Innocent paflage of Ships upon them. XIII. That Empire over fome part of the Sea may be gained by Occupancy , and how. XIV. That Toll for certain caufes may be Im- pofed on fuch as trajfkkby Sea. XV. Of Agreements which forbid fome people to fail beyond certain bounds. XVI. A River changing its courfe, whether it change the bounds of the territory ; ex- plained by a diftinltion. XVII. What is to be determined in cafe a Ri- ver do manifeftly change its courfe. XVIII. That the whole River doth fome - times pafs with the Territory. XIX. That things clearly defer ted become the next Occupants , unlefs the Propriety be held in general by fome Prince or Peo- pie. I. How things become ours originally. II. Other means refuted. III. IV. Occupancy two-fold, of Empire or Dominion. Ch. 5. lib. io.f.v.^ Vumg. THings may become ours by a particular Right, either by an Originary, or by a Derivative Acquifition. Originary Acquifition (when men began firft to aiTociate together) might alfo arife by Divifion, as we have laid •, but now by Occupancy only. But fome man may haply fay, That fomewhat of Originary Right may alfo be acquired by fome fervice done, or by reafon of fome Pledge, &c. But to him that throughly weighs the matter, it will appear, That this is no new Right unlefs it be in refped of the manner:, for it was firft virtually in the dominion of the Lord. Paulas the Lawyer, to the Caufes of Acquifition, adds this, which indeed feems moft natural, if we our felves have given being to that which we claim as ours. But fince no- thing can naturally be made without fome pre exifting matter : Now if that be ours, the Species being introd uced^he dominion will be continued . But if the matter pre-exifting be- long to none, then (hall the Right be acquired by a kind of Occupancy : But if it it belong to another, then that the Right of Propriety defcends not naturally unto usalone, will appear by what follows^. Now let us examine," Whether that Occupancy, which after thofe firft times, is the only natural means of gaining Propriety, be alfo the Originary. Of things that properly belong to none, two things are fubjed to be held in Propriety ; namely, Empire and Dominion, as it is diftinguifht from Empire : Which Seneca thus differenceth, AdReges pot eft as omnium pertinet, ad fmgulos Proprietor; To Kings appertain thP Sovereignty over all, to private men the Propriety or Dominion of what is theirs. And a little after, Rex omnia Imperio poJfidet,finguli Dominio ; Kings hold all by their Sovereignty, and private men what is theirs by Do- minion. And again, Cafar omnia habet, Fifcus autem prtvata tantum & fua % Caefar hath ally yet is his Exchequer private oily, and his own. So Symmachus concerning Kings, Ye Rule all, but preferve to every one his own. Of the fame mind was Dion Prufaenfis, Regto civttatis eft, at non eo minm in ea fuum quifque pojftdet ', The whole Countrey is under the command of the City, yet in it every man enjoys his own. So faith Pliny, The Empire of a Prince is much greater than his private Patrimony. Now there are commonly two things that are fubjecl: to Empire-, Firft, Perfons, which alone fometimes fufficeth; as in an Army of Men, Women and Children, feeking new Plantations. Secondly, Lands, which are called Territories. And although both Empire and Dominion are ufually gained by one and the fame Art, yet are they in themfelvesdiltinct : So we find in Apollodonts, That the Lands as well in Arca- dui as in Attica were divided, yet the Empire remained in one only. And therefore although the Dominion or Property of things do nlually pals not to Subjects only, but fometimes Ch a p. Hi Of ^iyers and Sea. r, how pojfejl. 8? fometimes to lb angei s, yet may the Soveraignty (till remain where it was before. Sow- /«*, in the Book that he wrote concerning the condition of Lands, tells ns, That the Fit belonging to their own Colonies being inefficient, they that tookjhe care to affign and divide the Land, did apportion to fuch of their Citizens as came afterwards, fitch Fields as they had taken out of the Neighbouring Territories ; contenting themfelres with the bare pofleffion,fotf leaving the jurifdittion over them unto thofe whofe the Territory WM.Demofihenes callsthofe Fields wbicn lay within their own Territory, Inheritances; but thofe that lay in znothzzs,PojJeffions only. But in a place whofe Empire is already pofleft, the right of Occupancy, as to things v. movable may by the Civil Law be anticipated, as we laid above. For this Right pro- Tharthe ceeds from the Law of Nature, rather permitting it, than commanding that it be al- R '8 lic or'Pof- ways lawful: Neither indeed doth Humane Societv require it. And if any man mould ftflin | *ingi object, That the Law of Nations feems to julbfie it ; I mail anfwer, That although in (,v uVbe fome parts of the World it commonly is, or hath been lb received, yet did it never amount prevented. to a Compact, or general Argument among all Nations, that it fhould be fo : but is v:- ther from the Civil Law of many Nations distributed, which notwithstanding rrny by any particular Nation be rejected. As indeed there ate many other things which our Civil Lawyers fcem to julbfie by the Law of Nations , when they treat of the di- vifion of things, and of the manner of acquiring Propriety and Domin This alfo mult be obferved, That if we refpect the Law of Nature only, no right of VT Propriety can be admitted to thofe who have not the ufe of reafon. But the Law of u P° n what Nations; for the common good, doth indulge this favour unto Infant;, Ideots, and ninionof i°* Mad-men, that they may lawfully receive and retain the propriety of things. All Man- f an ts and kind in the mean time favouring, and as it were fultaining their peifons: For humane Mad-men is Laws may conltitute many things that are preternatural, but not any thing that is agamlt grounded, nacu/e. And therefore that Right of Dominion that, in favour to fuch, is by the una- nimous confent of all Civilized Nations thus introduced, may haply confift with the firlt aft of Dominion, which is a power to have and to hold things in propriety ; but not with the lecondAct, which is freely and voluntarily todifpofe of them by themfelves without a Guardian. For as to the Right of alienation and the like, becaule in their own nature they imply the aft of a Will guided with reafon, which Infants and Mad-men have not : Therefore doth not the Law permit thefe acts unto them. Whereunto the Apo- ftle alludes Gal. 4. 1. The Pupil though he be Lord of all the Inheritance, yet during his mn- r age is no better than a Servant ; that is, as to the ufe and free exercife of his Right. We have J * 4 " r " heretofore begun to treat of the Dominion of the Sea, which welhall now complear. Rivers may be held in Propriety, though neither the Water above nor beneath be in- VII. eluded within our Territories, but do cohere with both, or with a part of the Sea. Tim Rivers It is fufficient to denominate them ours, that their greater part, that is, their banks on m ]Y. bc P°f- both fides, wherein they are included are ours, and that that Rher, in refpect of the ^ '" our Land adjoining, is but a lmall thing. Righl'. r0per But by this it fhould alfo appear, that the Sea might have been held pofTeft by him that VIII. on both fides polTeHeth the fhoar; yea, although it be open above, as a Gulf, or both whether the above andbelcw, as a branch or the Sea, fo as it be not fo great a part of the Sea, that Sea may be fo. being compared with the Lands, it cannot realbnably be thought to be a part or portion of them. Now what is lawful to any one King or People, may alio be lawful to two or three, in cafe they are willing to poffefs the Sea running alike, between them. So we have feen fome great River gliding between two Territories, occupied by both at firlt, but at lalt divided. It is granted, That in thofe parts of the Sea which were fubjret to the Rowan Empire, I X." from the former ages, till the Reign of the Ereperour Jufiinian, the Law of Nations N°tio of old did forbid that any one people fhould challenge any Right peculiar to themfelves in the in ( ° me P arcs Sea, though it were only the Right of Filhing. Neither can we approve of their cpini- Empire! ons, who think, That when the Roman Laws do tell us, That the Sea is the Common Right of all, it is to be underftood only of all the Roman Citizens: Forfirft, the words are fo general, that they cannot admit of fuch a limitation •, For what the Latines ren- der in thefe words, Omnium Commune', The Common Right of all: Theofhiha expounds by - thefe, w/yJ/ vin-nn A.^armv, Common to all men. AndZJlpian teils us, That the Sea is by nature as open and fice for all men as the Air. And fo doth CAfv.s allure us, That the ufe of the Sea is to all men alike Common. Befides, Civilians do manifeftly diltinguiili re pablick things of the people, among which they reckon Rivers, from thofe that are Common to all men : For lo we read in the Conftitutions, That fome things are by the Law of Nature, Common to all, and fome things are Publickj By Natural Right thefe things are alike Common to all, The Air, Running Water, the Set, and the ffioar adjoyning ; But all Fi- vers and Tons are PiMlck. The very fame alfo we read in Theophilus and other-'. Concern- ing the S.a Coafts, Nerdtim was of opinion, That they were not fo pubiick as thofe things which arc in the Patrimony of t people •, but as thofe which Nature at the firlt N difcovered » -» po The Sea' and the Shoar holt> held in Propriety. BOOK II. difcovered, but were never fince in the occupancy of any, no not of any one peo- ple : Which fesms to contradict that of Celfus , who faith , That to what place fo- cver the Roman Empire did extend it felf , there the fhoars are-, as I conceive , the peo- ple's of Rome : But the Sea , as to the ufe thereof lies C ornni0 > 1 "> *M Mm. Which .The Seas and feeming Contradiction may be thus ealily reconciled : Neraiitu fpeaking of the Shoar, Shoars how as t0 t [ ie necefiary ufe thereof to Mariners, and to fuch as pafs by, faith, That h°wh |d* nd ^ * 3 naturally Common-, but as to any benefit or profitable Improvement of it, by Propriety. erecting Forts, or other durable Buildings, fo, as Celfits well obferves, it is peculiar to the People of Rome. For, as Pomponius likewife informs us, fuck Buildings could not be ere&ed without fpecial Licence from the Pnetor , either on the Shoar, or in any part of the Sea, which was contiguous to the Shoar, and fo reputed as part of it. X Though thefe things be true, yet doth it arife from Cuflome and Confent , and That the Law not from the Law of Nature, that the Sea, in that fence taken as is before deda- ofNarure red, is not occupied, nor by right could be. So the King of Denmark having fei- doth not hin- 2ec j and cenfifcated fome Merchants Ships of Hull, for Fifhing on the Coafts of Nor- d arc of Sea 13 ' wa y> near ^ anA -> without leave, our mod wife Queen Elizabeth pleaded , That the clofedby" Dei t Lawyers had adjudged the Sea to be free, and by the Law of Nations, Com- Land may be mon to alii nor could be Interdicted by any Prince. And as to Cuftome, fhe an- occupied. fwered , That neither his Great Grand-father , nor his Grand-Father , nor his Fa- camd.Eiix. t h er ^d ever exacted it : But on the contrary, That his Father had granted, That the English abftaining from Injuries , fhould have freedom of Fifhing without leave. For Rivers alfo are publick we know, and yet the right of Fifhing in fome corner or creek of the fame River may properly belong to fome private perfon. Nay , even of the Sea it felf , it is faid by T aulas the Civilian , That where it is . the proper Right of fome particular perfon , he may have an Injunction to quiet his pofTeffion : for this is now a private cafe , for as much as it concerns the Right of PofTeffion , which properly appertains to private , not publick caufes ; where doubtlefs , he treats of fome fmall portion of the Sea let into fome private mens ground : Which we read was ufually done among the Romans , as by Lucullus , and others ; And, as Saluft teftifies, by many private men in his time, who had fub- verted many mountains , and made Seas out of dry Land. WhereuntO Horace thus alludes : ', Whileft Mountains into Seas are c aft, Fifofrtghtnedfrom their holds, do ft and agaft. The like is recorded by Paterculm., We, faith he, inject huge hills of earth into the Sea ; and when we have made Mountains hollow, we let in the Sea to fill up the Con- cave. Pliny likewife fpeaking of the earth , faith , That it mufl be embowelled to let tn the Sea. With what great Bulwarks, faith Caffiodore, are the Sea banks decently Inva- ded ? How far doth the Earth encroach into the Bowels of the Sea ? So that as TibnUus writes : Th' untam'd Seas with Mountains are immurd, That Fiji) from Winters ft orms may lye fecurd. Viirro writing of L. Lucullus., faith , That having cut through a Mountain near Na- ples, and thereby made a paffage for the Maritine Rivers into his Ponds, he had fo great plenty and variety of Sea Ftp , that Neptune himfelf had not more. Plutarch alfo re- cords the lame of Lucullus, That having furrounded his Villages with Trenches and Chan- nels even from the Sea, and fo ft or ed them with Fifty, he made his Banquet ing-houfe with- Lib. 9. c. 54. * n 'be Sea it felf. So doth Pliny, That having at a vaft charge dugg through a Moun- tain and let in the Sea, he was by Pompey the Great, called Xerxem togatum. The very like doth Valerius Maximus record of C. Sergius Orata , Who by letting in the Sea at Spring-tides, and intercepting its going out, made Seas peculiar to himfelf. But the very fame we find afterwards produced by the Emperour Leo, in oppofition to the opinions of the Ancient Lawyers , about the paflages of the Thracian Bofphorus -, namely , That they might be inclofed within certain bounds , and poffeft as a pri- vate Viti Luculli. Chap, i i i. Of the SoVeraignty over fome Parts of the Sea. n i vate eftate. Now if any part of the Sea may be annexed to a private mans e- ftate , as being environed by it , and in refpeft of the Land , fo ftnall in propor- tion that it may be deemed as a part of it, and that the Law of Nature did not oppofe it \ why may not that part of the Sea which is contiguous to the Shoar , be reckoned as a part of his, or their dominions whofe the Shoars are ? Efperi- ally whileft that part of the Sea being compared with the Territory , is no great- er than a fmall creek of the Sea , compared with the greatnefs of a private roans Land, wherewith it is encom palled. Neither will it much alter the cafe, to fay, That thofe Seas are not on all fides furrounded, as may be eafily illuftrated by the example of a River, that is not every where begirt with Banks:, or by the exam- ple of the Sea, that for conveniency of Importation is let into fome Town, adjoyn- ing to the Shoar. But there are many things indulged unto us by nature , which the Law of Nations, by common content do prohibite : wherefore where this Law is in force, and not by common confent repealed , no one part of the Sea, though for the moft part furrounded by the Shoar, can be claimed by any people as their pecu Andqueftion- liar Right. 'eft, though the Seas be naturally free, yet as to any profit that may arife from that part of the Sea, that is contiguous to the Shoar, as by Fifhing or otherwife , it may by cuftome or confent be poffeft by the Prince whofe the Territories are. For the diftinet dominion of that part of the Sea bordering on the Territorie of any Whether ftrangers may fiih Frince is beft feen by the Taxes and Tributes which thofe Princes take of ftrangers for Filh- in thofe parti of the si a ing, whereof we have many precedents: As in Rajfia, where the Tax for frilhing is ve- that joyn to the Shoar of ry great; infomuch that the Hollanders gave the tenth Fifh. Denmir^ takes great Tribute at another Frince. Ward-houfe and in the Sound : As alfo for Fifhing in the North Sea , and even for Naviga- ting that Sea between the Coafts of Norway and i(ltnd\ as the Merchants of HAl lately found by fad experience : as Sweden alfo did heretofore when Norway was theirs. All the Princes of Italy do the like for Fifhing on their refpeclive Coafls in the Mediterranean. The Earls of Orkney in Scotland took the tenth Fifh for the Ifle of ar- cades. So do the Lords of Mannors in the Weft of England, for Pilchards, Hat>e and Conger. The States lay Im- pofitions upon the Fifh taken within the Seas and Streams of other Princes, alfo on thofe taken on their own Coafts. Edward the Third of England took 6 d. per Tun in his time, which is now as much as 18 d. tf.j, refolved to fet up the Fifhing Trade in England, confidering that it was moft proper for him fo to do, in refjpect of his do- miuion in the North Sea. Queen Mary let a Leafe of the Fifhing of the North parts of Ireland for twenty one years for a certain Fine, and iooo/. yearly Rent to be paid into the Treafury of Ireland. The Hanftownt had liberty of Fifhing granted them in thofe Seas i Mar. upon fome conditions , as ap- pears by the Rolls of Chancery. And for the Fifhing in the North Seas , Licences were Natures law Merchant. ufoally granted at Scarborough Cattle. King James fet out a Proclamation 1609. to re- train all ftrangers from Fifhing on the Coafts of England , Scotland, and Ireland , without Licence to be year- ly granted. But this alfo is to be obferved , That where this Law of Nations is not yet X I. received y or now abolifhed , the bare poffefllon of the Coafts is not fufficient How fuch pof- to entitle any people to a Right in the Seas adjoyning. Nor is it enough for e C i rioni ] 8 u 1 ^ a Prince to conceive, or to write himfelf Lord of the Seas, unlefs by fome Overt Aft fongidafts? he proclaim himfelf to be fo. Befides, That Dominion that is acquired by occu- pancy may be deferted, and then the Sea returns to its priftine nature; and is Com- mon to all, as the Shoars are, being deftitute of buildings : and as the Right of Fifhing in Creeks of a River, as Pomponim notes. But moft certain it is, That the Right that is gained by Occupancy, ex- XII. tends not fo far , as to give a Right to Impede any Nation from the benefit of Such 0cc "- a free pafXage •, fo as it be meerly for Innocent Commerce and Traffick , but §* nc Y hm " not for depredation , or fuch like adts of Hoftility ; feeing that even by Land Right to Traf- we allow the like freedom of paffage, which ufually is lefs necefTary, and more fickinnocent- offenfive. lyo'ySw. But that the fole Soveraignty over fome parts of the Sea , without any other XIII. Propriety, may be held, may more eafily be evinced: Neither (as J fuppofe) That the So- can the Law of Nations , whereof I have fpoken , gain-fay it. The Arrives veraignty o- charge it upon the Athenians, as a manifeft breach of their League, For that they ver fome ^ had fuifered the Spartans , being their enemies, to pafs through their Seas unmo- feamVbe lefted i whereas it was exprefly provided againft in the faid League , That nei- poffeft, and ther party fhould permit the others enemies to pafs JU nt hunSr , through any how. p.irt of their dominions. And ( as Thucydides records it ) when the Grecians had *'*• 6 ' made a truce for fome years in the Peloponefan War , it was allowed to the Meg a- rentes , That they might freely and fafely pafs through their own , and their Con- federates Seas. So likewife Dion Cafftm defcribing fome part of the Sea , doth it N 2 thus,' pi Of the Empire o\>er the Sea. BOOK II. thus, All that Sea belonging to the Roman Empire. And Themiftius alfo concerning the Roman Emperour, laith, That his dominion reacheth over Sea and Land. And to the fame purpofe is that of Oppianus to the Emperour, The Seas do know no others Laws but thine. Dion Pntfeenfis , among the many priviledges given by Augusts unto the Ci- ty of Tar/is , adds this, That he gave them the dominion over the River Cyd- philip 2. nut , and over the Sea adjoining thereunto. Demoflhenes faith , That the Lace ■ damonians governed all, both by Sea and Land : And he that wrote the life of Timotheut relates, That after fuch a time , the Lacedamonians laid down their long continued claim , and voluntarily yielded unto the Athenians the Soveraignty over the Sea. Curtiut of the City of Tyre, laith much to the fame purpofe, That [he fate as Oueen inthemidji of the Sea , extending her dominion not to her Neighbouring Seas on- ly , but to all others whitherfoever her Fleet fwuld ride. Philo the Jew, dilcourfing of Kings, faith , That they add to their poffejfions Seas infinite in number and extent.. So he that penn'd that Oration concerning Halonefus , which is inferted amongft thofe of Demofihenes , fpeaking of Philip of Macedon, faith, All that he de fires of m is, That we would confefs our fclves unable to defend the Seas without him, arid therefore that we would put him into the pojfejfton of them. And the Emperour Julian fpeaking of Alexander, faith, That he endeavoured by that War to make himfelf Lord both of Sea and Land. Now what Alexander endeavoured to do , his SuccefTor An- ; tiochus claimed as his right, as appears by that Speech of his in Gorionides , Nonne terra & mare mea funt ? Are not both the Sea and the Land ours ? So alfo did his other Succeflbr Ptolotny, if Theocritus deceive us not : OVf many Seas And Lands hit Empire reacht. And again, All Lands and Seas, and roaring River s t lyt Vnder the Empire of King Ptolomy. Now let us us defcend to the Romans : Hannibal himfelf thus befpake Scipio the Greater , We Carthaginians are confined within the Coafts of Africk , whilefi ye Ro- mans are known to lord it over Foreign Kingdoms , both by Sea and Land* And of the LefTer Scipio, Claudian writes thus, With RomeV great Power, firfi in Revenge, he awes The Spanifh Ocean, under Roman Laws. All the Roman Hiftorians do every where call the Mediterranean Sea their own : As Salufi , Florus , Mela , and others. But Dionyfiut Halicarnaffenfis owns them at. Lords, not of the inland Seas only , which he bounds with Hercules Pillars , but of the Ocean, at far as it it not impojfible for men and Ships to fail. And Cajfius grants, That their Empire extended almofi at far at there wot either Sea or Land. Appian defcri- bing the vaftnefs of their power , afligns unto them the Euxine , the Propontit , the Hellefpont, the ttAig&an, the Pamphilian, and the Egyptian Sea. And Plutarch makes Pompey Lord of all that Sea that lay within Hercules Pillars : So doth Appian. , This alfo doth Philo againft Flaccut acknowledge : Since which , faith he , the Family of the Casfars have got the Empire both of Sea and Land. Ovid alfo fpeaking of Augu- ftus Gtfar, faith, Even Chap, i i i. Tolls taken by Sea. That no Median Ship armed mould fail between the Cyanes and the Pro- vitd. l!"ii. inontoi ies of" the Mountain Taurus. This was that mofc honourable Peace menti- oned by Plutarch., wherein it was alfo agreed, That the Perfians fhould not ap- proach nearer unto the Sea, than the length of an Horle Race, that is, than forty Furlongs. And in thofe Annual Truces of the Pelopenefian War , it was Articled , That the Lacedemonians- fliiould not fail with long Ships, but with other Veffels, rbucyd.!.^, which fhould not carry above the weight of Five Hundred Talents. And in the firll League which the Romans (immediately after the expulfion of their Kings ) To'yb. made with the Carthaginians, it was agreed , That neither the Romans, nor their Affbriates, fhould fail beyond the Promontory called Pulchrum; but if at any time they fhould either by diftrefs of Weather, or by their Enemies, be driven beyond it, they fhould carry nothing from thence but neceffaries, and fhould alfo depart withia five dayes. Whereupon Servius upon that of Virgil, Littora Littoribus contraria— cbferves, that in that League it was provided, that neither the Romans fiould approach the Carthaginian Shoar, nor the Carthaginians, the Roman Shoar. Such another League there was made , between the Romans and the Tarentmes , whereby it was provided , that the Romans fwuld not fail beyond the Promontory Lacinium. So in the fecond League that was made between the Romans and the Carthaginians, it was agreed, that the Romans fhould neither traffick, nor take any Prizes beyond the faid Promontories Pulchrum , Maffu , or Tarfeium ; as alfo, that the Romans fhould not touch upon the Coafts either of Africa or Sardinia , unlefs it were to receive fafe Jjv..l.^9.c$p. Conduct, or to repair their Ships. And after the Third Punick War, we find the Carthaginian Senate blamed, for that contrary to their League , they had raifed an Army , and were making Naval Provifions. The like we may read of the Sultan of Egypt, that by a Leaj.n : made with the Grecians, he had obtained liberty to fend two Ships every year , through the Streights of Bofphorns. But yet were not all thefe fufficient to prove , that either the Seas or the Right of Navigating them , may be held in Propriety by any one or more people. For , Nations as well as per- ibns , may by contract and agreement among themfelves , relinquifh not only what is properly their own, but what belongs unto them in common with all other' Nations , in favour to thofe who may reap benefit by it. And yet in this cafe we lay not , that the Seas could lofe their freedom •, but that the people contracting and their iiicceffor are obliged to perform their contract and agreement j that fo the Law of buying and felling may be preferved. And therefore both the prefent Occupants, and they that fhould fucceed in their Right, ftand obliged by that contrail. ^ X V I. Controverfies do frequently arife between neighbouring Nations , whofe Terri- iUve'd r ' tor ' es are feparated by the Intervention of fome great River, whether fo often ingfecouifc" as that ^ iver ma " change its courfe, the bounds of both Empires do change with changes the' lt '■> a "d whether, what that River, by altering its courfe, takes from the one, bounds of the doth of right belong to the other: which difpute cannot be determined, without Territories, firft knowing the nature and the manner of the Tenure. Surveyors tell us, thst Jul. Fronun.j L anc ] s are f t ] iree f evera j ki nc js •, fome are divided and incloied with artificial Fences : fome again are affigned by meafure in grofs , as by hundreds of Acres or Furlongs^ and others are called Arcifinia, becaute (as Varro hath obferved) Nature hath fenced them with fuch bounds as are fufficient to fecure them from the Incur- fions of an Enemy ; as with Mountains, Woods and Rivers. Pliny fpeaking of the Aipes, faith , We carry away fuch things as Nature ordained for Boundaries to feparate Nations. And fuch Lands are alfo called Occupatory , becaufe commonly they are fuch, as being wafte and defart, or being gained by the Sword , are held by occupancy. In the two former kinds, although the River do change its courfe, yet is nothing changed of the Territory , bot what is gained by the River, is the Oc- cupants. But in thofe that are Arcifinious, that is, which Nature hath thus bounded 7 the River in altering by little and little its courfe , cloth alfo alter the borders i C h a p. i i i. Of (Rfftrs changing their Courfe. 9 5 Borders of the Territories. And whatsoever the faid River (hall caft to the ad- verie part, fliall be accounted his, to whofe Territory it is added: becaufe it is very credible, that both people did at the firft agree, that the midft of that River fhould be the Natural Boundary of both Empires. Tacitus accounts the Channel of the Rhine Efficient to bound the German Empire. But Spaniamts tells Adrian , There are many places wherein the Barbarians are divided, not by Rivers, but by Land marks. And Conflantine calls the River P hafts , Quvoyv , the common boundary. Diodorus Skuhts reciting the Controverfie that there was between the JEgefthenes and the Selinimii , faith , That the River parted both their Temtoriies. And- Xenophon calls the like River, limply - thofe inward ads, as to render us infallible •, for a man may diflemble his thoughts, and both mean and intend otherwife than he either fpeaks, or by fome deeds pretends to do. And yet will not the nature of humane fociety admit, that thefe internal ads of the mind, being fufficiently expreft, mould have no efficacy ; wherefore whatfoever is fo fufficiently fignified, (hall be held for truth, and be admitted of as a good plea againft him, that (hall fo exprefs his mind, which if done by words, the cafe is plain. 1 v. By deeds that is underftood to be forfaken, which is call away , unlefs it appear by But by deeds fome circumftance that it was fo caft away only for a time, and with a mind to require it done. again. Thus a debt is faid to be forgiven, when the bond is delivered up to be cancel'd : A man, faith Paulus, may renounce his inheritance, not by words only, but by any other indication of his will •, as if he, who being the right owner of a thing, (hall knowingly contrad with him that ufurps it from him, he may very well be judged to have releafed his own intereft in it. And why this fhould not take place, as well amongft Kings and free people, as amongft private perfons, no reafon can be affigned : The like may be faid, when a Prince (hall give leave, or command his Subjed to do that which cannot with iafety be done, unlefs he be exempted from the penalty of the Law ; it may be prefumed that he is fo exempted , for this arifeth not from the Civil, but from that natural right which every man hath to renounce what is his own ; and from a natural preemption, Wh tf ' wnerc ^y every man is believed to will that, which by figns he fufficiently declares. In accepted VCI in wr, ich fence that of Vlpian may rightly be underftood, where he faith, It is agreeable to full of a Dc't the Law of Nations, that whatfoever a man accepts of in full of his debt, is a good isadifcharge. difcharge. V. Under things done, are morally comprehended things not done, being confidered with And deeds due circumftances -, fo he that is knowing and prefent yet is filent, feems to give his con- not done, fent, which the Hebrew Law feems likewife to acknowledg, Numb. 30. 5, 12. that is, un- lefs by fome circumftance it appear, that either fear or fome other accident, did reftrain Things given hj m f rom (peaking •, {a is that given for loft, whereof there is no hopes of recovery, as tob'e'ours"^ a ^ am ^ m tne P aws °^ a ^yon : So if a Merchant fuffer (hipwrack, his Goods ceafe to be his own, though they be afterwards driven to fhore, yet not immediately (as Vlpian notes) but when he gives them for loft, and ufeth no outward means to recover them : For in cafe he fend out and make enquiry after them, or promife a reward to thofe that (hall find and reftore them, the cafe is otherwife to be judged. So he that knows his own things to be by another man detained, and makes no claim unto them in a long time, un- lefs fame caufe do manifeftly appear •, feems to do it to no other purpofe, but to (hew that he is willing to renounce them. And this is it that Vlpian elfewhere intends, where he faith, That an houfe poffeft for a long time by another, and no claim made nor rent de- fnt. mony mandedforit, feems to be deferted by the right owner. To exaft Intereft long ftnee due, long forborn, faith that good Emperor, Antoninw, is hardly juft ; for the not demanding it in fo long a fpace, prefum'd to makes it probable that thou wert willing to remit it ; and that by not fo much as demanding it, thy be torgiven. p lir p f e was t0 m ake thy felfthe more beloved and honoured, and thy Debtor the more thankful. Something like unto this will appear in cuftom , for even this fetting afide the Civil Laws which are willing to admit it, (though limited to a certain time, and after a certain man- ner) may be introduced by a people that areSubjeds, being long tolerated by him who hath the Supreme Power. But how long time is required to entitle it to the effeds of That filence a juft right, is not determined, but left Arbitrary •, yet fo much is required, as is fuffici- fhould argue ent to fignifie a confer.r. Now that filence (hould be of fo great force , as to juftine a conf e nt,two our preemption of a Derelidion, two things are requifite : Firft, That he that is filent, farvP " knows that he hath a Right; for him that knows it not, filence cannot prejudice. Secondly, Vide infra it. That.his filence be free and voluntary, and not occafioned by fear or any other fuch s.f.22. §. 11. caufe, which jf it appear, makes our conjedures at the Will, of no force. -^ V I. That both thefc therefore may be thought to concur (though other conjedures may ,, %f what force avail) yet is that of time moft prevalent : For, in the firft place, it is hardly poffible that Tff" tl 'To ' n a * on S time ? a man mou ^ not ty f° me means or other, arrive to the knowledg of his preve a°Dere° own Ri 8 nt » time uiuall y adminiftring many occafions to the difcovery of truth. Now liction. if Chap, i v. Trefcription ; or, Time out of Mind. 99 if the right owner be prefent, much lefs time fufficeth to ground our conjectures, than if he be abfent, letting alide what is determined by the Civil Laws: So fear once imprinted, cannot fuddenly be caft off, yet can it not be perpetual ; length of time fuppiying us with many occafions and remedies, both by our felves and from others againft fear ; and for providing for our own fafety, even by going out of his dominions whom we fear : or at leaft by making our protefhtion concerning our Right, or which is better, by offering to refer our caufe to indifferent Arbiters. But becaufe that time which exceeds the memory of man, is in a moral fence, infinite ; y j j therefore if claim be not made within fuch a time to any thing out of poileffion , it is Time out of a fufficient preemption that it is forfaken, unlefs fome very ftrong reafons be brought to mind, whacit the contrary. And here it is very well obferved by our moft prudent Lawyers,That Time "• out of mind is not altogether the fame with a Century of Years, though it be true that T| - - there is not much difference between them: For one hundred years is commonly reputed m ind notthe the term of a mans life, which doth well nigh make up three Ages or Generations •, which fame ' with a the Romans fecm to object againft Antiochus, to prove the injuftice of his denjands , in re- Century of quiring thofe Cities, which neither he, nor his Father, nor his Grandfather, -ever enjoyed. years ' th , ou $ Thus Queen Elizabeth pleaded againft the King of Denmark, for the fifhing upon the coafts fere™ from it" of Norway, and New lfland without leave, That neither his Great Grandfather, nor his cambd. stir. Grandfather, nor his Father, had exacted it - , and therefore concluded it to be unjuft : <•»• i<5°o. Seeing alfo that the Sea is free for all by the Law of Nations. Porphyry accounts thirty years for an Age, and Herodian in the life of Severn/, accounts An Age what, three Ages for a Century : Philo alfo reckons in three hundred years , ten Kings to Reign in Egypt, fo Plutarch records fourteen Kings to have Reigued in Laced&mtn in five hundred years : And therefore the Emperor Juftinian wifely forbad that any Title fhould be fet on foot, that had been difcontinued for four Ages. But here it may be objected, That feeing that men do naturally love themfelves and VIII. whatfoever is theirs, it is not eafily to be prefumed, that they will caft away what is their An objection own •■, and therefore fuch Negative Acts though long continued, can be no fufficient ground aa(w «ed. to conclude a Dereliction. But we ought alfo to believe fo charitably of men, that they would not fuffer one another to live perpetually in a fin unrepented of, for any thing that is vain and perifhable, which cannot oft times be avoided, unlefs we do grant fuch a de- reliction. As concerning Empires , though they are held in great eiteem among men, c ; (i pro De j^ yet are they not without their burthens •, for if they be not well adminiftred, they expofc the Governor to the wrath of the Supreme Judge : And as the cafe were fad, when they that are Tutors and Guardians fhould wafte the Orphans Eftate with needlefs Suits at Law, about the Right of Tutelage , or (to ufe Plato's fimilitude to this very purpofe) when Lib. r. Mariners in a Storm fhall contend (to the endangering of the Ship) whether of them can beft fteer her •, fo they are not always the belt Patriots, who can be content to fa- criSce the publick peace to their own private ambition, and not without the vaft ex- pence of innocent blood, difpute, which of them can beft provide for the peoples fafety. Highly extoll'd by our Anceftors was that act of Antiochus, who being driven cut of a great part of his Empire by Scipio, and confined to that only which lay beyond Mount Taurus, gave hearty thanks to the People of Rome, for eafing him of fo great a burden, and for conty a&- y^ Mdg ^ ing his Dominions within moderate bounds. Of the very fame mind feemed Jonathan to be, 4 . c . 1. willing rather to forego his right to the Crown, than to deftroy his Country with Civil Wars, fo that he might be but next unto David, whom he loved as his own Soul, 1 Sam. 23. 17. (It is faid of Otho, the Emperor, that in his life he was as diflblute us Nero, but viut. vit. o- in his death as honourable as any of the Roman Emperors •, for rather than harafs his own **«*• ** fir*** Country with inteftine wars, he chofe to dye refolutely by his own hands.) Among thofe many grave Sayings bequeathed unto us by Lucan , this in mine opinion , is not the leaft : -Cantone novorum Pravemufcelerumqmrunt, titer imperetVrbi? Fix tanti f Herat, Civilia bella movere Vt neuter- - • -Shall they my praifes have, Who feekjoy broils, which fhall the State enflave ? '7 had fear ce been fo much worth to expect whether > As to provide by Civil Wars that neither. But howfoever feeing that it much conduceth to the confervation of humane fociety, that T . Titles to Empires fhould at length become fixt and undoubted •, therefore whatfoever ."'" ^^ proofs (though but conjectural) fhall be brought in reference to that end, muft be em- be^fixt and O 2 braced certain. IOO Whether the (Rjgbt ofihtUnborn may be loft by Prefer ipt ion. BOOK II. braced with fome grains of favour : For if Arams Sicyonius thought it fevere to lofe what for fifty years he had quietly enjoyed •, how much more was that of Angnftus, who efteem- The prefent e d him for a good man and a true Citizen, who would by no means alter the prefent State fate of Go- of the Common-wealth , but as Alcibiades in Thucydides fpeaks, would help to defend tobcYkcred. tnat f 011 " °f Government which was then in being. Of the lame mind was Ifacrates, as appears by his-Oration againft Ct/wwrfc/mr. And fo wssGot, who in his Oration againft Rnllus, teils the people of Rome ,That it concerned him that would preferve peace to de- fend the prefent flate of the Common-wealth, whatfoever it was. And Livy alio who Lib. 35. faith, that every good Subject ought to rejoyce in tht prefent Government of publick af- fairs: But if there be any thing defective in what I have here faid, yet againft that pre- emption whereby it is believed that every man hath a will to preferve that which is his- own, there is another more ftrong,that it is not credible that any man that would lb pre- ferve what is hisjfhould not in fo long a time lay fome manifcfl claim thereunto by fome fit fignification of his Will. 1 X. But here it may be faid, and haply not improbably, that this depends not upon a bare Dominion prefumption, but that it was a Law introduced by the voluntary Right of Nations, that hatn heeu an immemorial and an uninterrupted pofieflion without any claim or appeal made to Ar- poffeHlon im- biters, frou'd be of force to transfer an undoubted Dominion : And therefore when Pho- raemorijl. caw was gjifren to the Elders of Catana by the Grecian Emperors, Gregorys tells us, Thac there was a Law added, that every of their Succeilbrs fhould declare in writing that they held it under the Title of Administrators, left by a long continued omifiion, the right of the Emperour mould be excluded : For it may eafily be admitted, that what did fo highly conduce to the publick peace and common benefit of mankind, might by the confent of all Nations pafs into a Law. But this muft be underftood of an uninterrupted polleffion, Lib. 55. that is, as Sulpitius in Livy fpeaks, Such a poffeffion as is held by one and the fame perpetual Lib. 34. form of Right, always continued, and never intermitted. And as the fame Livy in another place exprefleth it, A continued poffeffion that was never controverted : For if it be inconftant and defultory, it. avails nothing, as the Namidians fometimes pleaded againft the Cartha- ginians, That fometimes the Namidian Kings, and fometimes the Carthaginians , held the pof- fejfion , as opportunities and advantages offered tbemfeives to either of them, and at all times he that was flrongefi held it longefi. X. But a more knotty Queltion yet remains, namely, Whether the right of fuch as are un- whether the born, may by fuch a dereliction tacitely pals from them ? If we fay it cannot, then neither Right of thofe can a long uninterrupted poffeffion,add any certainty to Dominion or Empire,becaufe there " nb ° rn > ""y are few of them, but fome that are unborn may pretend a Title to : If we fay it may, then be t us lo . Wl ,j lt f eem as fl-j-^g^ ^ow {i[ ence can prejudice them that could never Ibeak, as having as yet no exiftence -, or how the fad of one man may damnifie another. To refolve this He that hnh we muft know, that he that hath no vifibk being , can have no right •, as that which hat; no vifible be- no exiftence can have no accidents : wherefore if the people, from whofe will all right ot no right. Sovera 'S a ty did originally proceed, may change their will •, furely they cannot be faid t'o injure thofe that are as yet unborn, feeing they have as yet no acquired right. But as the people may change their will exprefly, fo may they be believed to do it tacitely ^ and therefore it being granted, that the people have changed their will , and that the right of thofe who are as yet unborn, doth not exift, but that the Parents of whom they may be born, and who had a right in the mean time to have preferved it for them did relin- quifh it ; what fhould binder but that what is thus deferted, may be occupied by another. Mmy exam- Many examples we find in Hiftories of fuch Derelictions , the moft eminent is that of r-!es of Dere- Lewis the Ninth of France, whom we find renouncing for himfclf and his children, all thac !to°r 5 ' right which, by his Mother Blancb,he might have claimed to the Kingdom oiCaftile.And c. j 8. tl()0 f e renunciations , which the Infanta s of Spain do ufually make, whenfoever they marry to the Kings of France, are of force to debar tltem , and their Children, from all pretcnfions to the Crown of Spain. And thus much may fuffice to be fpoken of that right which is natural. For by the Civil Law, as many other Fictions, fo this alfo may be introduced, that the Law may, in the mean time, fuftain the perfons of fuch as are unborn, and may fo pro- vide, that nothing fhall be poffeft by any other, to their prejudice •, as the Civil Law doth for the inheritances of Infants and Ideots: But whether the Law will doit or not, is not ralhly to be prefumed, becaufe what thus conduceth to the particular benefit of thefe, may haply much endanger the Common-wealth. There is no doubt, but that fuch a right may be efrablifhed by the Civil Law, as cannot lawfully be alienated by any oneac~t,which, notwithstanding, for the avoiding of the uncertainty of Dominion, may by the neglect of claim in fome certain time be loft, yet fo, that they that fballafterwards be born, may X I. lnve their perfonal Action againft thofe by whole neglect they have loft their Right, or That thcTitle againft their heirs. navif'oto 5 B y vv ' iat k a[ h b een already faid, it is plain-, that a juft Title may be gained by one io'it :iw S °'rc- King againft another, and by one free people againft another, not only by exprefs con- feriptton. fent. C h a p. i V. Of Trefcription. 1 o i fent, but by dereliction and the occupancy following it, creating fas it were) from thence a new Right or Title unto it : For as to that general maxim, Qua ab initio non valent, ex voftfaElo convalefcere non pojfnnt, Thofe Titles which were originally naught, cannot by any p; £s whole. As in cafe a man hath entred into an Afibciation with one of his Neighbours otly, and continued the fame for an hundred years, whereas he was at liberty to have done the like with others alfo within that time-, thofe rights of his liberty, I fay, are not by Prefcription loft, until being prohibited to exercife it, or compelled to forego it, he obeys it, and Efficiently fignifie his confent thereunto ; which being congruous not only to the Civil Law, but to natural reafon, may alfo be in force even amongft Yr.eo of the higheft fortunes. CHAP. Chap. v. Tl?e «■ with a woman, as placeth the Woman, as it were, under the eye, (that isj) under the fafeguard of the man. For fuch a Confociation we may obferve to be among dumb creatures. But becaufe men are governed by reafon, therefore it is required from the Woman that (lie be faithful and obedient unto her Husband, ( for Subjection is rationally due to Protection. ) Surely Nature feems to require no more to the conftitution of Marriage than Cohabi- I &. tation and Protection. Neither did the Law of God require more before the publishing whether the of theGofpel : For diverfe holy men before the Law, had feveral Wives at the fame "eofonemjn time. St. Cferj/o/rowe fpeakingof Sarah faith. That it was fame comfort agaixft her barren- infeparablybe fiefs, to have children by her husband, though begotten on her hand- maid:, Nondum enim talia bytheNjtu- tuncvetita erant ; Foriuch things were not as yet forbidden. So St. Juguftittc \,Therewas "lor Evan- then no Law given againji the having of many Wives for propagation fake. Anu in another 8 c,lca ' Law place, Erat uxorumplurium fund habendarum tunc inculpabilis confuetudo ; The Cuflome of "ha- f D J'civif Dei ving many Wives at once, was then unblameable. And even under the Law we find forr.e lib. 16. e. 38. Precepts given to thofe that fhould have many Wives at once. And we find it exprefly DtDofi.cbrift. forbidden to their Kings to be exceffive in accumulating either Wives or Horfes, where- j#«4-'-i2« fore the Hebrew Doctors upon that place do limit their Kings to eighteen Wives and ,I' 2 ,!j" \ 5 ' Concubines, and no more. And Jofephm acknowledges, That to have many Wives at 2Sani. 14. s. once was Mos patriot, The Cuftome cf his Countrey. Therefore God himfelffeems to upbraid David, For that he had given him his Mailers Wives and Concubines, Qua* jufti & legitime habere pofjet ; Whom be might jitjHy and lawfully enjoy, faith Joftphus. Nei- Ant.Hift.l.\T. therwas this knot of Marriage under the Law mdifToluble.as now it is ; For we find a c - '• prefcript Form to him that was willing to put away his Wife. Neither was any man H or ^ a ! t ( !" s forbidden to marry the perfon repudiated, but he only that put her away, and the luble. Prieft , who alfo is in the fame place forbidden to marry a Widow or an Harlot. Now whereas Philo, and many modern Interpreters, dounderftand thistobe meant of the High Lev.21.7. Prieft only, by reafon of that which follows, ver. 10. It is evident by that of £2,^.44. 22. That every Prieft was thereby forbidden •, as may alfo be eafily collected from the connexi- on of this feventh verfe, with the verfes preceding. But yet this liberty that was thus given to the woman thatwas repudiated to become another mans Wife, was by the Law of Na- ture, reftrained to a certain time after her Divorce, to avoid confufion about her ifTue. To prevent which, the Jews d\d require, That there fhould be three months interval, whether a between the Divorce and the fecond Marriages ; whence arofe that queftionin Tacitus, Woman ha- Whether a Woman having conceived, might be married before her delivery. But the Chrrftian ving concei- Law hath reduced this, as many other things befides, to a more perfect rule, whereby vedm, £ llt f both he that puts awajr his Wife, unlefs for the act of Uncleannefs, and he that marries delivery. 6 ^ her that is put away, are both pronounced guilty of Adultery. And St. Paul, who was The Chrifiian both his Apoftle and Interpreter, doth give not only to the Husband the power over Law. his Wives body, which he had before under the ftate of Nature, (For he that joins him- felf to a Woman in Marriage, in corptu ejus habet dominium ; hath power over her body, faith Artemidorns ) but to the Wife likewife power over the body of her Husband, there- by making the obligation mutual, and the tranfgrefGon, on either part, equal. So JjtHaniits, Tne Divine Law dothfo conjoin two perfonsin Matrimony, that is, into one body, Infl.L 6. c. 23. on fuch equal terms, that whofoever fiall violate this bond, or cut af under this knot, (Jjall berepu- ted an Adulterer. And therefore he prefently fubjoyns, By thine own example thou art to teach thy wife Chaftity. Iniquum eft, ut idexigas, quod ipfe prseftare non pofhV, his very unjufi to exaEt that from her, which thou canft not perform thyfelf. To the fame fenfe, and almoft in the fame wordsfyeaks NazJannenc,Being equally bound,Quomodo exigis,quod non rependis ? With what Confcience canft thou exatt that which thou refufeft to pay ? To the fame purpofe is that of St. Jerome to Oceantu, The Laws of Carfar are one thing, and the Laws of Chrift anot her ; Papinian commands one thing, and St. Paul another : By the former, the Reins of our unbridled lufis are letloofe; and Adultery only being condemned everywhere, Men are permitted to frequent the Stews and Brothelhoufes without rcfiraint, Quali dignitasculpam faciat, non voluntas", As if it were the Sex that made the crime, not the will. But with us what is unlawful for women is equally unlawful for men. The fame yoke binds both to the like conditions. There are fome that are of opinion, That ourblefTed Saviour in the fore-cited places, Objcftien. namely, Mat. 5. 32. and Mat. 19.9. did not ordain a new Law, but only reftorethe P bid: 1 06 What Marriages arc by the Law of 'Nature , juftifiable. BOOK II. old: Aliedging for tfiemfelvcs the very words of our Saviour, which feem to reduce us to the Original Inftituticn, Ab initio nonfat fie; From the beginning it was not fo,... Anfwered. Whereunto we may anfwer, That from our fhft condition, when God to" one man gave but one Woman j we may well collect what was beft for man , and what molt ac- ceptable to God : And from thence conclude , That to walk by the fame Rule was ever moil fafe and commendable. But we cannot from thence infer, That to have ma- ny Wives was finful : For where there is no Law, there can be no tranfgreffion. But in thofe times there was nofuch Law extant. So alio, when God faid, whether by Adam or by Mofes, That this League of Matrimony was fo facred and ftrict, that the Husband was obliged to fep;irate himfelf from his Fathers houfe, and together with his Wife plant another family : It was no more than what was faid to Pharaoh's daughter, Pfal.4.5. l '• Forget alfo thine own people, and thy Fathers houfe. And although we may collect from this ftroag confignation, how acceptable it would be to God that it fhould be perpetual, yet i: cannot from hence be evinced, That even then it was commanded that this knot fhould rot be, for any caufe whatfoever, diflblved. St. Ambrofc, in the cafe of Polygamy, di- ftinguilheth that which God commends in Paradife from condemning the contrary. But Chrift forbids any man to feparate thofe, whom God by his firft Institution did conjoyn, Grat.c.tf. 4.4. making that a matter worthy of his new Law, which he knew to be beft for men, and moil acceptable to God. Certain it is, that moft Nations in ancient times did both indulge unto themfelves the liberty of Divorces, and alfo of enjoying plurality of Wives. Of all barbarous Nations the Germans were well nigh the only people, recorded by Tacitus, that were contented with one Wife: But the Fcrfian, Indian, and Thracian Hiftories do clearly teftihe .the lawfulncfs among them both of Polygamy and Divorces. Amongft the eA^^tuus.th-£'ir Priefts only were reftrainedto one Wife. And amongft the Grecians, as Athemw tells us, Cecrcps was the fkft that allowed to one man but one Wife. And yet, that this was no long-liv'd practice among the Athenians y we are taught by the example of Socrates and others. And if haply any people did live more abftemioufly , as the Romans, who never admitted of Bigamy, nor in a long time, of Divorces, they were certainly highly to be commended, in that they drew near unto that which was moft perfect. And yet will it not hence follow, That they who did otherwife before the promulgation of the Chriftian Law did thereinfin; For as Sr. Augufime rightly obferves *, hath' ^rfe've" Qi^ndomoserat, crimen noner at ; Whileft it was a Cuftome it was no Crime, (atleaft ral qualites not imputed as fo. ) wherein they differ no lefs than in their peculiar Language, wh'uh difagreeing conditions to govern aptly, no one and the fame Law can fuffice. The moft high God permitted foroe things in die ifraelites for the hardnefsof their hearts, which were not confonantto the rules of perfection ; where therefore nature or cuftome have entertained a vicious, yet not intolerable ha- bit, v\ jth fo hvg and publick approbation, that the oppofue venue would feem as uncouth as it would be to walk naked in> England : There may a wife and upright Lawgiver conceal for a while his inward diflike, till time make way for a more compleac Reformation. < Efi aliquidptdire units, futon dttur ultra. lib. t.c T4 dc Abraham. Moft Nations tolerated Di- vorce and Polygamy. T>e moriiia Germ. Htrodian I. 2 *Contr. Fa§(l. Ub.22 c. 47. Every Nation For want of difcretion in this cafe, the Kingdom of Congo in Africa was unhappily diverted from Chriflianity, which it willingly at firft embraced; but afterwards with great Indignation rejected, for no other reafon, but becaufe Plurality of Wives, was ( I know not how neceflarily but I am lure) more contentioufly , than feafotiably denied unto them. For where a vice cannot be rooted out , without the ruine of a ftate, it is acceptable to God, for a time to con- nive at it. See Rarvl. p. 293. See 2 cbron. 10. 18, 19. ffiftory of the Con cil of Trent, p. 63. X. What Marri- ages are jufti- fiable by the Law of Na- ture. Whether the confent of Parents be tc- quilite^to a perfect Marri- age, by the Law of Na- ture. Now let us fee what Marriages are good by the Law of Nature. To direct our judge- ments herein we muft remember, That not everything that is refugnant to the Law of Nature, is made void by the Law of Nature; As appears by things prodigally given away: but thoieonly wherein that principle is wanting, which fhould give life and vigour to the act ; or in which, all its effects are vitiated and tainted. Now that principle which gives life to this and all other humane acts, is that Right which we expounded to be a moral power or faculty to do it, together with a will fufTiciently declared. But what Will may be fufficient to produce a Right, we fhall have occafionto declare more fully when we (ball difcourfe of promifes in general. But concerning this moral power, the firft queftion is, Whether the confent of Parents be by the Law of Nature requifite to a perfect Marriage, which fome affirm. But herein they are miftaken : For all their Ar- guments do enforce no more than this, That it is agreeable to the duty they owe to their Parents, to crave their confents : Which we fhall eafily grant them, provided that the will of their Parents be not manifeftly unjuft.For if Children be to reverence their Parents in all things, finely they ought to do it moft efpecially in fuch things wherein the whole Nation isconcern'd, as in Marriages. And yet it cannot hence be inferred, That a Son hath not a Moral Right to difpole of himfelf, if they confent not. For he that marries, onght h a p. v. Of Marriage betipeen I<\indred. 1 r ought to be of mature age and judgement, and he is to forfake his Fathers houfe, fothat he is herein exempted trom his Fathers domeftick difcipline. ( And becomes from thence av^ifiof , Mafter of himfelf.) And although the duty of love and reverence do oblige him to ask the good will of his Parents, yet doth not the breach of that duty null the aft of his Marriage. That the Romans and fuch other Nations did make void fuch Mar- riages was not from the Law of Nature, but from the will of their Law-make* s. For by the fame Law, the mother to whom notwithftanding the children do naturally owe rere- rence, could not by her defcent, make the Marriage void ; no, nor the father of a Free-man: And if the Father himfelf be under the power of his own Father, then the confents of both Father and Grand-father, are required to the Sons Marriage : But to theMarriageof a Daughter, the Grand-fathers confent alone fufficeth. Which diffe- rences being altogether unknown to the Law of Nature, doth evidently prove, that they arifenot from the Natural, but: from the Civil Laws. We find in Sacred (lory, That many holy men, and much more, women (who by rea- virgins not to fon of their modefty and bafhfulnefs ought efpecially in this cafe to be governed by chufe Hus- others) have in contracting Marriages fubmitted themfelves to tie authority of their ba ndsfor Parents: Non eftvirginalispudoris, eligere maritum; It becomes net a Virgins modelly, th ^ rafeIve5 - faith Ambrofe\, to chufe an Husband forherfelf. And yet was not Efaus Marriage de- I/i?x". rf/i- clarednull, nor his Children held as Illegitimate, becaufein his Marriage he had not the brah.iuit. confent of his Parent: It is true, That at to Daughters ■, the chief power of difpofinr them is fGrat.c. 3?. in the Father. So in Euripides Hermione, ?• 2 " My Nuptial 1 to Parents care alone Commit j for free choke therein have 1 none. But as to Sons, Ifwerefpeft flricT and Natural Right, that of Quintilian will be found true, That if it be lawful for a Son at any time to do things otherwifc unreprovable, without, yea againfi his Fathers will ; furely that liberty is never more juftifiable than in Marriage : For as Caffiodore truly obferves, Durum eft, libertatem liberam non habere in Matrimomo, Lib. 7. c. 4. unde liberiprocreantur; To be debarred of our free choice in M.ttrimony, from whence our Chi I dren fliould be born, is hard; nothing is more plain than that a Son in his Marriage flwuld ple.tfe Ter. Andr. Aft. himfelf. »•/«.*. That Marriage that is contracted with another mans Wife, is doubtlefs null by the X I. Law of Nature, unlefs her former Husband have difmift her : For fo long doth his pow- It is a void er laft over her, which by the Evangelical Law is not diflblved but by death. The latter Marriage that Marriage therefore is null, for want of a moral power in the woman to difpofe of her "ith^n^he's felf, which being loft by her former Marriage doth vitiate all thofe fubfequent effects wifeor°Hu" that attend it •, becaufe every Aft is but the invading of anothers Right. So likewifeon band, the other fide by the fame Law, a Marriage contracted with the Husband of another Woman is alike void, by reafon of that power that Chrift gives a chalk Wife over the body of her Husband. Concerning Marriages between fuch as are nearly allied, or of the fame blood, many xil. difficult queftions arife, which are often with much zeal and animofity agitated on both of Marriages fides. Becaufe he that mail undertake* to aflign certain and natural reafons, why thefe between' kin- Marriages (that are by Law or Cuftome thus forbidden) are unlawful, fhould experi- drcd * mentally find how hard, nay how impoffible, it is to effeft it. That alledged by Plu. torch in his Roman Queftions, by St. Auguftine in his Book De Chitate Dei, by Philo in his Special Laws, and by St. Chryfoftome on 1 Cor. 13. 13. as the contracting of new Friends, and the ftrengthning our felves with new Alliances, favours more of Policy than true Piety : Nor are they of that force and energy as to conclude the contrary Afts to be either unlawful or void. Whereunto maybe added, That fome cafes there may be, wherein fuch prohibited Marriages may be more profitable and politick than others, The Marriage as may be collected, not only from that which God himfelf in his Law given to the of kindred Jews excepts, of railing Seed to a deceafed Brother having no ifTue : But from that alfo (om g tI ! ( ". cs of a Virgin left by her Father, as fole heir of all his eftate, who by the Grecian and poikkk. Hebrew Laws, was to be Married to the next of kin, to preferve the name and Eftate in their own Tribe and Family '■, and from many fuch like cafes which do, or may occur. But yet from this general rule, we muft except the Marriages of Parents with their Ince fl uous Children in what degree foever, the reafon whereof is fufficiently evident. For neither Marriagesfof- can the Husband, who by the Law of Matrimony, is the head of the Wife, pay that bid by the refpeft and reverence, that Nature binds him to give to his Mother, nor the Daughter to LawofNa- her Father : For though fhe be fubordinate to her Husband by Matrimonial Right, yet doth ™ e ; and her Marriage allow her fo great a Familiarity with her Husband,as is altogether inconfiftent %s ' with the duty of a Child. Paulm the Lawyer was in the right, when having Paid before, P 2 That io8 Inceftuous Marriages. BOOK II. That is un- lawful which is repugnant to Humane Nature. Lib. 2. Contr. Jovin. That in contracting Marriages the Law of Nature and Modefty were chiefly to be re- garded ; he added, Thatit was againft modefty fora man to takehisown Daughter to be his Wife. And Pbilo in his Special Laws condemns it as an execrable wickednefs to pollute the bed of his deceafed Father, which as a thing Sacred, ought not to be toucht, and without regard to either the age, or the reverence of a Mothers name, to make himfelf both Son and Husband to the fame Woman, and to make her both Mother and Wife to the fame Man. Wherefore fuch Marriages are doubtlefs not illegal only, but void, by reafon of fomething that is vicious,which perpetually cleaves to the effedsof it. Neither is that Argument of Diogenes and Chripppns, which is drawn from the pradice of Cocks, and fuch like dumb creatures, fuffkient to prove, that fuch commixtures are not repug- nant to the Law of Nature. For ( as I have already faid ) it is enough to conclude any thing unlawful,That it is repugnant though but to humane nature.This is that Inceft which the Lawyers, Paulas and Papinian, wrote to be by the Law of Nations committed, be- tween the degrees afcendent and defcendent. And this is that Law of Nature, which, as Xenovbon notes, is no lefs a Law, becaufe it was contemned by the Perfuns, Medes, Indians and Ethiopians ; for which they were puriifhed with perpetual Wars, Parri- cides, Fratricides, as Pbtlo firft, and after him St. Hierome obferved : For as Michael Ephefuu well interprets it, That is Natural, which is of common ufe amongft fuch Na- tions, as are uncorrupted ; And that live moft agreeable unto Nature. And therefore Hippo- damns the Pythagorean calls thefe inceftuous commixtures, inordinate and Unnatural tufts, unbri- dled pajfions, and abominable pleasures. Such Were thofe of the Partbians, whereof Lucan thus complains, Epulis vefana, nteroque Jtegia non alios exceptos legibus horret Cone ubit its - — — With Wine and dainty fare, the Court irifUm'd, Of their unbridled Lufts are tut afnamd. And a little after, ■ Cm fas implere parentem, Quidreor ejfenefas ? Who fears not with his Mother r' lye y To him, what can be Vtllany ? The execrable Cuftome particularly among the Perfians, Dion Pruf 27- fulffpeweth out her Inhabitants. For if the Canaanites and their Neighbours did fin in all thefe Inceftuous clungs,and were punifhed for fo doing •, certainly they had a Law given them, which forbad Marriages for- the doing of them : Which Law, fince it was not meerly Natural, mult needs be given by God^o^ God, either peculiarly to them ( which is not very probable, nor will the words bear or Noah? m that fenfe) or to all mankind, either at the Creation to Adam, or after the Flood to Noah. Now, fuch Laws as were given to all mankind, Chriftdid no where abrogate, but thofe only, which as an Hedge or Partition wall, did feparate that Nation from all others. Befides, when St. Paul did fo feverely cenfure the. Corinthian for marrying his Eph. 2. 14. Mother-in Law ; as he had no peculiar command from Chrift fo todo,lb he ufeth no oilier l c °r-7- 25. argument to juftifie his feverity, than this, That it was reputed unclean even among the profane Gentiles : Witnefs Carondas his Law, which branded fu:h Marriages with infamy. And that of Cicero, in a cafe not much different from thatx>f*the Corinthian: For having firft ProACkmtio. laid open the matter of fact, and proved the Marriage of the Mother-in-law with her Son-in-law, in deteftation of fo foul a crime, he cry s out, O mulieris incredibile fcelus, & prater banc nnam, in omni vita inauditum ! O the incredible wickednefs of a Woman, and but in this never heard of! When King Seleucws had a mind to give his Wife Stratonice to his Son Amiochus, Verebatur ne ipfa offenderetur ut re illicita *, He was afraid, faith Plutarch) left Jhejhould take offence at it as a thing unlawful. For foit was in Virgil's ac- count, Thalamos aufum incefiare noverca. Hit Fathers Bed with Inceft durfi pollute. Which general deteftation of thefe Inceftnous Marriages, if it derive not its origine from an immediate dictate of Nature, it muft neceflarily defcend by ancient tradition from fome precept given by God, to Adam, or Noah. The Ancient Hebrews, who herein were do mean Interpreters of the Divine Law, and Maimonides, who had read and with found Judgement weighed all they wrote, do affign two caufes of thofe Laws concerning Mar- riages, mentioned Lev. 18. The firft is, A certain Natural modefty which will not The mbrews endure that Parents fhould mix with their own ifiue, either by themfclves, or by fuch affign two perfons as either in Blood or Alliance are neareft unto them : The Second is for pre- reafons of vention of Fornications and Adulteries, which too much Familiarity and daily Converfa- thofc Laws * tion, without any watchful eye to reftrain them, may occafion ; efpecially if fuch wan- ton dalliances may be made good by lawful Marriages. Now if we would judicioufly adapt thefe two caufes unto thofe Divine Laws before-mentioned, Lev. 18. it will eafily appear, That in thofe that are allied in the right line , either Afcendent or Defcendent, ( for we do not here mention that of Parents with their Children, wltich Natural Reafon without any other Law, teacheth us to abhor) and in thofe the firft degree of the oblique line , which becaufe of its immediate defcent from the com- mon ftock, is ufually accounted the fecond degree, by reafon of that frefh and lively Image of the Parents in the Children •, The former of the two caufes above-mentioned is very forceable, as ifluing from that which Nature her felf doth, if not command, yet at leaft commend unto us as the more honeft : Of which kind there are many which afford abundance of matter, for Laws both Divine and Humane. And therefore the Hebrews do not precifely tye themfelves to the degrees of the right line, that are expreft in the Law, but comprehend under them many degrees, that are not there mentioned by a ma- nifeft parity of reafon. The names whereof, with them, are thefe, The Mother of his Mother, the Mother of his Mothers Father, his Fathers Mother, the Mother of his Fa- thers Father, the Wife of his Fathers Father, the Wife of his Mothers Father, his Sons Wife, the Wife of his Sons Son, the Wife of his Daughters Son, the Daughter of his Son.3 I IO Of the Decrees of Affinity and Conjanguinity, forbidden. BOOK IT,. Sons Daughter, the Daughter of his Sons Son, the Daughter of his Daughters Daugh- ter, the Daughter of his Daughters Son, the Daughter of his Wives Sons Daughter, the Daughter of his Wives Daughters Daughter, the Mother of his Wives Fathers Mo- ther, the Mother cf his Wives Mothers Father: That is to fay, according to the Roman Dialect, ail Grand-mothers aad Great Grand- mothers, the Grand, and Great Grand- mothers-in-law, the Nephews, and Neeces Daughters, the Daughters of the Son-in- law, the Nephews Wife, and the Wives Mother and Grand-mothers •, becaufe there is the fame reafo>: for the kindred on the Mothers fide, as for that on the Fathers-: And fo under the firft degree is comprehended the fecond, and under the fecond the third. Beyond which it is not likely that any Controvcrfie fhould arife, which might otherwifc proceed in in fu.it urn. Now thefe Law's, together with that which prohibits Brothers and Sifters to marry one another, the Hebrews reckon among thofe which God gave unto Adam, which were The fix Pre- thefe, Firft, That, Enjoyning the worfnip of God. Secondly, That, Commanding ceprs given t | ie ordaining of Magiltrates, and the adminiftration of Juftice. Thirdly, That, rtimM&Ko~ Againft the (bedding of Innocent Blood. Fourthly, That, Againft Images or Idol- a/A Sons. worfnip. Fifthly, That, Againft Rapine: And Sixthly, This, againft Inceft. Yet fo, that this laft was not to be in force till the world was well replenifhed with mankind, which in the beginning could not be avoided. Neither do they think it to the purpoie to fay, That Mofes makes no relation of any fuch Laws given to Adam, forbidding fuch Manages. For h; thought it fufficient tacitely to couch it in the Law it felf, ^herein he declares, That the Nations were punifhed for thefe very fins : Which they could not j.ftly have been, had there not been a Law given them, that did forbid them. There being many things recorded in the Law, not in order of time, but as occafion ferved to exprefs them. It will nothing avail then to fay, That thefe Inceftuous Marriages were not fins, becaufe th:re was no LAv againft them before Mofes •, for no more was there Gen. 58.74. any Law then extant to punifh Adfltery with death: yet we find Thamar fentenced to No Laws ex- death for it by Judah. So the punifhment of the Sicbemites by Simeon and Levi was juft. r nt ft R Unini *" or ravi ^ m g their Sifber Dinah, though we read of no Law then publifhed againft it. o? Adultery 5 ' And the Inceft of Reuben deferved.his Fathers Curfe, though the Law forbidding it }■« we find ' be not recorded : For it was fufficiently condemned in this, That the Nations were thefe punifh- call: out by God for thefe things •, whereby it may probably be concluded, That God had ed before Mo- gj ven f ucu L aws t0 mankind before Mofes his time, though they are but obicurely glanced ries'ofr/^- * at kyhim. fnar,pinah And indeed the Jews have a notable wife faying, which gives fome light to thofe dark and Rtiibtn. times, namely, that in their Law there is neither Prius nor Poflerius , Firft nor Laft ; for in the Jw/j; many things are recited without order. As touching the marriage of Brothers and neiTher er > Ci f lifters, tne very words of Michael Ephefms are thele , For Brothers and Sifters to lye toge- nor pofierius' lher,was at the firft indifferent ; but when there was a Law that forbad fuch Coition, then whe- ther that Law fiwuld be obferved or nor, was not to be cjueftioned. And therefore Diodorus lib. i. Siculus notes, that to alftain from fuch Commixtures, was the common cuflom of all men, the Egyptians only excepted : though Dion Prufeenfis excepts alfo the Barbarians. Seneca wrote thus, We, faith he, joynthe Cods in marriage, but with vety little piety, for we marry toge- l..%.4eu? the? Brothers and Sifters. Plato calls fuch marriages , prophane and abominable before God. Whereby we may difcern, how mean an opinion other Nations as well as the Jew*t had of thefe Inceftuous Marriages , which they feldom mention without a Nefas, to te- ftiiie their dilllfcc of them. All Brothers and Sifters, as well on the Mothers fide, as on the Fathers fide, that is, as well of the half, as whole blood are comprifed within this Law, whether they are educated at home or abroad , as is manifeft by the Chaldee Paraphraft. XIV. Now thefe marriages being expreflv forbidden, feem to juftifie, or at the leaft to tole- Eemotede- rate thofe in more remote degrees. For to marry an Aunt, that is, his Fathers Sifter, is greesfeem exprefly prohibited : but yet to marry his Brothers Daughter, which is equal in degree, den d " is not. Such was Sarah to Abraham, as Jofcphus thought f. Nay, there are diverfe Pre- ■f Mil. 1. 12. cedents for this among the Jews : And after the Law given, the fame Jofephiu gives us Jof.Ant. /fifl. examples in Herod, who married his Brothers Daughter, and gave his own Daughter to lib. 12. and h.j s Brother Pherot.u. There are certain marriages lately contracted ( faith Tacitus ) which to us a>eftrange, though not fo with other Nations, becaufe forbidden by no Law : Namely, that a man fhould marry his Brothers Daughter, this was held lawful among the Athenians, as Ifiu-ti and Plutarch in the Life of Lyfias record ; whereof the Jews give thisreafon, Be- caufe young men do daily frequent, and are more ufually brought up in their Grand-fa- thers and Grand-mothers houfes amongft their Aunts, than their Aunts are in their Brothers amongft their Nephews, neither have they there fo much Right. Which if we do admit, as it is indeed very agreeable to reafon, then wemuft acknowledge, that the Law which Interdicts Marriages with Kindred in the right degree, and with Sifters (from whence Chap. v. The Marriages cf Con fins Germans. 1 1 x whence fprung the whole race of mankind at firft) is now perpetual, and obligeth ail men, being grounded upon natural honefty : So that whaifoever is doneagainft this Law, may be made Nail, by reafon of the Impediment, that is biting and permanent ; but what is done againft other Laws, is not fo, as being but cautionary againft this, which may be otherwise provided againft. Sure I am, that by the Nineteenth Cancn of thofe Marriage of that are called the Apoftles, they that marry two Sifters furcellively, or their Brothers cr "voSifteis. Sifters Daughters, are only driven from the Clergy. And as to the fins for which God is faid to extirpate the Canaanites and their Neighbours, the anfwer is ealie. For though the charge be general, yet it may be reftrained to fome principal heads in the charge •, as to Sodomy,to Carnal Copulation with Beafts,with Parents, Silters 7 other mens Wives, &c. And that other Laws were added but as Fences and Retrenchments, toreftrain men horn violating thefe Laws, as the Hebrews thought. For that it was net to be underftooa of Other Mar ; , every particular in that charge is fuffkiently proved, in that they were forbidden to ria 8" iot\>iA have two Sifters, as Wives, at the lame time •, which that it was not at the firft made to " e "f r ^J," all mankind, the example and great piety ot Jacob w\\\ notfufTcr us to believe-, where- contracting unto may be added that of Amram the Father of Mofcs, who married his own Aunt, as thefe. did diverfe others, both among the Grecians and Romans. And yet 1 cannot but com- mend the great modefty of the Primitive Chriftians, who did noc only of their own ac- T llc f[ im \' cord obferve thofe Laws, which were given in common, to all Nations, but thefe alfo alu exceeded which were given to the Jewtfi Nation only ; yea, and did enlarge the bounds of their the Jews modefty^ beyond thofe degrees forbidden them : that as in other vertues, fo in this alfo, ia modefty. they might be feen to excel them. And that this was done with a general confent, will appear by the Canons of the Councils. Common nfe and practice is of great power , to commend or difcommend any thing to humane fenfe (faith St. Auguftine fpcaking in dift.ke ^'d'vitJJti, of the marrjage of Brothers and Sifters) which, faith he, now by Cuftome moft Nations, " ,J 5- '• l *- though Hcatbem(h, do abhor. And although thofe marriages are fometimes permitted, by fome wicked Laws, yet hath a better Cultome at length introduced an Abhorrence of them: Now fine e this Cufiome hath fo far prevailed, as to curb and refirain this Licence, to endeavour to infringe , or corrupt this Cufiome^ is little lefs than Impiety : For if it be unjuft, out of covetcufnefs to remove the Land-marks of our neighbours grounds, how much more unjuft is it, out of an inordinate Infi, to fubvertfo profitable olid fo laudable a Cufiome? We have obferved, faith St. Auguftine, how rare mis to fee Brothers and Sifters Children to be joy tied in ibid, marriage in thefe times cf ours, by reafon of their propinquity in blood, being the next in de- _ gree to Brothers and Sifters ; which though by the Law is lawful , becaufe >. either Divine nor tnc ' marr ,f„ e Humane Laws have yet forbidden it, yet hath Cufiome introduced fuch a difltke of it, that it of Coofra is feldome done. Factum etiam licitum propter vicinitatem horrebatur llliciti ; 'That Germans. which is in it felf lawful, is prudently avoided for its vicinity to that which is unlawful : wherc- unto he prefently iubjoyns, That though it were the Religions Care of our Fore-fathers, after two or three defcents, to renew their Allyances, by Interchangeable marriages, abftaining only, after the world was fufficiently ftockt with men, from that of Brothers with Sifters ; yet who can doubt, but that, honcltius hoc tempore etiam confobrinarum prohibita efie conjugia ; The marriage of Brothers and Sifters Children, is now more modefily forbidden. And that, not only for firengthening our felves with new allyances ', but alfo by reafon of a certain natural and com- mendable bajlifulncfs , which pi oh Id refirain us from committing fuch libidinous alls with htr, ( of whom by reafon of the nearnefs of blood , we jhould have a reverend cfteem') as even conjugal modefty we fee doth even blufli to own. And therefore zAZfchylus calls the marri- age of Coufin Germans fuch a Conjunction as the Law forbids, becaufe by this means the Stock is corrupted and tainted. Now this natural Shamefacednefs , many Kings and Free People have by their Laws cherifhed and upheld. The Emperour Theodofius, as Vilxor reports, did fo highly efieem of it , that he exprrfly forbad the marriage of Coufia Germans, maktng but little difference between that, and that of Brothers and Sifters : Which Law St. Ambrofe highly commends, as being full of Piety. Such another Law we find made by Arcadius and Honorius. The like Cafwdore relates of the Goths , who prudent- ly following this example, did referve the priviledge of contracting marriages with Coufin Germans to their King only. And yet we mult frill remember, That not every ^ cv J e T thing that is forbidden to be done by Humane Laws, being done, is prefently void, un donfeonrra- lefs it be fofignified by the Law it felf. In the Council of Agatha , among other prohi- ry to Law, i$ bited marriages, that of Coufin Germans alfo is mentioned ; whereunto it is added, That prefently ^he Council did not at that time, fo prohibit them, as to diffolve tofe that had been J-™ 1- made. So Paulus the Lawyer faith, That marriages without the confent of Parents, was ^titta* I'njuft, but yet not to be diflblved. So in the Eliberine Council it was decreed, That if a va u.' *" man after the death of his Wife, fhould marry her Sifter, and fhe be faithful, he (hall be cm. 6a. debarred from the Communion five years •, thereby fhewing, that the band of marriage was to remain nndillblved. And by the aforefaid Canon of the Apoftles it was lik'ewife concluded, that if a man did marry two Sifters fucceftively, or his Brothers Daughter, he I 12 Concub'mary Marriages. BOOKII. XV. Some Conru- 'linary Con- tracts mjy amount to marriage. Evod. lib. 7. he was only not to have been admitted into Sacred Orders, but the marriage was not void. But that we may proceed to other marriages, it is to, be obferved, That iome Con- Gubinary Contracts may amount to true and authentick marriages: although they may- be deprived- of fome effects peculiar to marriages by the Civil Law, or lofe iome ef- fects that are natural, by reafonof lome impediment arifing from the Civil Law. As for example^ the accompanying of a Bond-man with a Bond-woman, was called by the Roman s, Com uber nium, a Conibciation, and not a marriage-, yet it, had nothing wanting requifite to the nature of marriage : And therefore in the Ancient Canons , it is called by the name of Wedlock. So the accompanying of a Free-man with a Bond woman, is not honoured with the Title ofMatrimony, but of Wedlock: which by Imitation, is fincc derived toother perfnns that are of unequal Conditions; as that in Athens between a Citizen and a Stranger. So Servius upon Virgil, calls thofe Baftards, that are born of obfeure Mothers. And yet even thete fervile conjunctions were in Greece, Carthage and Apulia, reckoned as marriages, though the Hebrews would not honour them by that name, nor legitimate them without the confent of thofe whofe fervants they were. For fo they expound thatpla.c of Exod. 21. where mention is made of marriages. And Cajfodore will inform us, that tbey were not to marry any woman of unequal condition to them- fdves, without leave obtained from their Prince. But certainly in the irate of Nature, inch unequal marriages may be Authentick, if the woman be under the cuftody andfafe- guard of her husband, and have plighted her troth unto him. So alio, under the Hate of r. 4 c. Concubines. op it fide & the Evangelical Law, a marriage between two Servants, or between a Free-man and a Servant, isa firm and lawful marriage, much more that between a Citizen and a Stran- ger, a Senator and a Free woman, if thofe things which are neceflarily required by the Divine ChriJlian Law, to the accomplifnment of a marriage be added, namely, an indif- foluble joyning together of one man to one woman, although fome effects properly due by the Civil Law to other marriages, do not attend thefe, or which of their own accord would follow thefe, were they not by fome Law hindered. And thus are the words of the firfb Tol, t .tne Council to be underftood, He that hath no Wife> but infiead of a Wife hath a Concubine, may not be driven from the Communion , fo as he content himfelf with one woman, whether pe be his Wife or Concubine, as he pleafeth. Concerning fuch a Concu- bine, St. Augnfline writes thus, If foe flail folcmnly profefs, that (lie will never know any other man, although he to whom foe is at prtfent fubjeffi, Jhould difmifs her: Jt may be worthy our pains, to enquire whether f:e fhould not be admitted to Baptifm. So in another place, A que/Hon doth often arife, In cafe a man and a woman being neither husband nor wife to any other, fhall agree to lye together, not for procreation fake, but only to avoid Incontinency , and fhatl give faith each toother, never to enjoy any elfe, whether that may be be called a marriage or no? And haply (faith he) it may not abfurdly be fo called, if they both agree , that this confun- ttion Jliall continue until death ; and although the procreation of children were not the main end they propofed to themf elves in their lying together , yet if they do not purpofely avoid it, nor do any wicked aft, to the intent that children fiould not be born unto them : But if a man have a Wife, he ought not to keep a Concubine, left fie eftrange his heart from his Wife. Hereunto likewife we may refer, that Theohfms and Valeminiamis do call an unequal marriage a kind of Fornication •, and that from thence, an Accufation of Adultery is laid to arife. Though the Laws of men do forbid fome certain perfons to be joyned in marriage, yet it follows not, that being married, their marriage is void. For it is one thing to forbid the doing of a thing,and another to make that void that is done : For the Prohibi- tion may extend its force no farther than to fome penalty, either expreft or arbitrary ; which fort of Laws Vlpian calls Imperfect Laws : Qua fieri quid vetant, fed factum non refdndunt ; Which prohibit the doing, but refcind not the fall done. Such was the Cincian Law among the Romans, that reftrained men from giving more than unto fuch a propor- tion, but did not make void that which was given beyond it. The Valerian Law ( faith Livyj when it forbad the whipping with Rods, or the killing with the Axe, him that had pro- vo\:ec\ or challenged another, impofed no penalty upon the breaker of the Law, but adjudged it to be improbe factum, difJwnefHy dene (fuch was the modefiy of thofe times, when Infamy only was thought a fufficient guard to the Laws ) whereas now, there is fcarce any that w>U fo wildly threaten his fcrvant. By the Fufian Law, none except fome few particular perfons was to receive by way of Legacy more than ten thoufand Affes, ( which reduced to our Covn, amount to about one and thirty pounds ten fhillings, reckoning every As to an Halfpenny Farthing): and he that received more, was to forfeit the Quadruple fumm. Amonofl thofe Laws that were called Imperfecta Macrobius reckons thofe which had no penalty annexed to the breach of them. Such was that refcript of D. Marcus, That Heir who ferbad him to perform Funeral Rites, who was thereunto appointed by the Teftator , did not rightly ; l' cer r ° wards howbeit he ordered no punifimer.t to be inflicted upon him that did it. We do acknowledge, that 1 ib. de bono Conjugii. Concerniro Com urines, St. Aug. Gen. 38. p. XVI. Some marri ages though forbid to be done, yet being done tie valid. Inflit. Jit. i. Liv.lib. 10. UtpiM. hii'dt affum. Ad Somv. Sripiottis. See Seel. 14. of ihisCha- Chap. v. Of the %jgbt of the major part of a Society. in that amongft the Romans, it was afterwards introduced by the Theodofian Law, That what- soever was prohibited only by the Law, although it was not exprefly faid, that what was done contrary unto it fhould be as null ; yet if it proceeded to Judgment, it fhould be conftrued as unprofitable, void, and of no force : But this ftrained conftruciion arofe not from the force of the bare prohibition, but from the vertue of the new Law, which other Nations were not obliged to follow. For fometimes there is greater indecency in the ail: doing, than there can be in the effe&s that proceed from it ; and fometimes alio the inconveniences which do follow upon the Receffion, or making void of the fad, are more than could enfue upon the doing of it. Befides this of marriage (which of all Confociations is the molt natural) there are di- X VI I. vers others as well private as publick •, and thole either over the people, or of the peo Of the right pie : But all of them have this in common, that as to thofe things for which fuch a So- of the raa ' or ciety is inftituted, the whole, or the major part in the name of the whole, do oblige £*/,.' of aSo " every particular in that Society. For it may well be prefumed that it* was the mind of thofe that firft entred into that Society, that the power to determine all matters therein treated, fhould reft fomewhere. But becaufe it would be apparently unjuft, that fome fewPerfons mould impofe upon the reft, where every Perfon hath equal power ; there- fore by the Right of Nature (fetting afide thofe Orders and By-Laws which do prefcribe a Form or Method to the whole Society, in the handling and difcufling of matters that are brought before them) the major part fhould have the power of the whole. So Thu- cydides, That which the Multitude, or the greater part thereof, Jliall decree, is Authoritative. Appianus was of the fame mind , As well in publick_Eletlionsj as in Courts of Judgment, the L '^ S* greater part rules the refi. So alfo was Dionyfius Halicarn. That which feems be ft to the moft, Qjfod pluribus muft prevdil : that is , Unlefs it be otherwife provided by fome former Law or Agreement* v .^ m ** va ' that of fuch a number of perfbns, fuch and fuch fhall be of the Quorum, whereof any two ere ' or more have power to determine : Yea, though their judgment be not altogether fo righteous as it might be, yet, Eo quod major pars decrevit t ftetur; Becaufe the major part hath Curtim I. io. decreed it^ it m»ft ft and. Whereas on the contrary, 'In panels jam defciente caterva, Nee fcrfona fita eft patris,,. nee curia conftat. The Ajfembly being diffolv'd in two or three, No face of Country nor of Court can be. And by and by after, vrudmm. -Inftrma minoris, Vox cedat numeri, parvaque in parte quiefcat. Of the fame Opinion was Xenophon, Who would have all things done according to the vote of the major part of the Suffragans : And in this fence doth, as well the Chaldee Paraphraft, as the Jewifh Rabbins, underftand that of Mofes, Exod. 23. 2. Neither fhalt thou fpeak in a caufe to decline after many to wreft Judgment, which the faid Paraphraft renders thus, Neither ft} alt thou ceafe to fpeakjhine own mind in judgment. Juxta Sententiam plurimorttm per- fice judicium; According to the opinion of the moft, give Judgment. But if the Sentences be equally ballanced, nothing can be done ; becaufe there is not' X V 1 II. any thing of moment fufficient to call the fcale : In which cafe if the Sentences be equal, which part the acculed fhall be held innocent : And this the Greeks call the fuffrage of Minerva, as carries the v£fchylus and Euripides inform us. So where the Judges are equally divided in opinion, the^res ar" Poffejfor rem tenet; The Right goes with the Pojfeftion, faith Ariftotle : And Senecamoxieof his equal. Controverfies faith the fame , One Judge condemns and another abfolves : Where the Judges Oreftes. are equal, and their Judgment fo unequal, the milder Sentence muft prevail. Neither is there £lt ^ ra ' any re af on, faith Seneca, that any man ftiould envy that Power which overcomes only by (hewing s l'l\ Q ' mercy. Nay the Jews go yet further : For if the condemning Part had but one fingle uon'tfUavidi- Vote more than the abfolving part, it ftood for nothing ; as may be collected from the oftpoteftas que Chaldee Paraphrafl, upon that place of Exodus before cited, and by others-, for fo alfo in milmcordia. all Logical Collections, the Inference follows that part which is leaft grievous. *'*"* Sen * But here another Queftion arifeth, namely, when and what ientences are to be con- XIX. joyned, and what to be divided? Wherein if we confider the Law of Nature only, that where the is, if no Law or Covenant have otherwife determined, we ought to diftinguifh between queftion isnot iuch Opinions or Sentences, as are altogether inconfiftent and differ in the whole, and *&eed unt °> fuch as differ only in part, that fo thefe latter may conjoyn in that wherein they agree, ^ ^ n l^ though the former cannot. And therefore where the Queftion to be argued wraps up and what di- many things together, it is to be divided and difcufs'd in parts. Thus Seneca, when ano-i vided. Q_ ther i 1 4 The <%ight of the Ahfcnt devolves on thofe that are Prefent. BOOK II. thcr man delivers his opinion in a Queftion, whereunto 1 confent in part only, Idefire him to divide that wherein I agree wuh him from that wherein I dijagree, and I mall then •where the joyn with him. As for example, they that adjudge a delinquent to pay twenty pounds, Queftion is and they that adjudge him to pay but ten pounds, may unite in the ten againlt them that "mo it hro vvou!d ac q uit mm - Bllt tnev tnac cenfure a Malefactor to death, and they that cenfure be difputed ^' im t0 banifhment, cannot be reconciled, becaufe death and banifhment are iuconfiltent ; in parts. neither can that part that would abfolve him,joyn with thofe that would banifh him. For though they both agree that he deferves not death, yet is not that expreft in the fentence, Lib. 8. Ep. ad but deducible from it by confequence : For he thnt would banifh doth not abfolve. It was ArilUmm.. therefore well obferved by Pliny, that when there dial] happen to be fuch a diverfty of opi- nions in a free AfTembly, concerning one and the fame thing, that they cannot be included in any one queftion, they muft divide the matter into feveral and diitinct quefhions; for it avails but little tjpattwo are difpleafed with the third, if in nothing they agree between themfelves. Folybiut juftly taxeth Pofihumim the Prxtor with fraud, when in demanding the Judgment of the Senate, concerning the Grecian Captives , he joyns together thole that condemned them, and thofe that would have had them detained as Prifoners for a lib. o. c i<. w'lileonly, againft thofe that would have releafed them. Such a queftion as this we fhall Vi'dm. j$5.' find in Gtllius, and another in Quintilian , where it being agreed that of feven Judges, what punilhment the major part ihould think fit to decree, the Malefactor fhould fufFerj two adjudged him to Banifliment, and two to be branded with Infamy, and three to Death: And when thePerfon fo adjudged, pleaded, that four of his Judges agreed than he fhould live, and three oniy that he Ihould dye-, The Accufer defired him to recite the Judgment of the four : An A when he began to fay, Two fentenced me to Banifliment and two to Ignominy ; he wm presently anfwered by his Adversary, That of two Sentences he made but one, and that that number which being united had preferved him, being divided, deftroyed him, and how can they be united, that fo exprefly divide themfelves ? XX. Whereunto alfo we may add this, That in all AfTemblies, the Right of thofe that either The Right of by abfence, or any other means, are hundred from making ule of their Right, is devolv- the.Abfentre- ed on thofe that are prefent, yea, fometimes even to one fingle perfon, whofe fole aft the "prefew. ma " be re P uted tne act °f the whole. So faith Seneca, Think^thyfelf to be the common fer- De Ccmr. I. 3. vant, yet finilt thou fcrve that Mafler that is prefent : Yet herein alio, as well as in that ge- neral rule of plurality of Votes , humane Laws do make fome exceptions •, as namely., when they require that fo many fhaH'be prefent to make a Court (as in our Houfe of Com- mons ;) or that the Perfons abfent, may give their Vote by their Proxies (as in ourHoufe of Peers. ) XXI. The order of Nature is this, that amongft equals he fhould be efteemed the firft, that what order is firft entred into that Society : For fo we find it is among Brethren, the Eldeft always pre- to be ufed a- cedes the reft , and after him the fecond, &c. Notwithftanding all other qualifications, mong perfons ^ Brothers are equal (faith Arifiotle) it is only their Age that makes them unequal. Theodo- fius and Valens, in defigning the order that fhould be obferved among Confuls, fay , Of thofe who are in the fame degree of honour , who fimuld precede, but they that were firft thought worthy of that honour. And the ancient cuftom among Chriftian Kings and States was, that they always preceded in fuch Councils as were called concerning Chriftian affairs, who firft profeft themfelves Chriftians, as tAaneat Sylvius records in his Hiftory of the Coun- cil of "Safil. XXII. But yet fo often as the ground and main reafon of entring into this Society, was the where divers prefervation of fomething held by them in common, but not in equal proportions : As wcJetiesdaim m an Inheritance, or in a Field, wherein one hath half, another a third, another a fourth howVotes a" P art - Ttien not on ^ tne order ' Dllt tne fuffrages of that Aflembly fhall be, not by the to be reckon, plurality of fingle Votes , but by the proportions that they feverally have in the thing ed. held in common •, which as it is moft agreeable to natural equity , fo it is approved of by the Reman Laws. So Strabo tells us, That when Lybica with three other adjoyning Ci- ties, did unite themfelves , as it were, in one Body •, it was agreed , that each of the three was to have one voice, but Lybica, two •, becaufe it contributed much more to the common benefit than the reft : And the fame Author tells us,' that in Lycia there were twenty three Cities combined, whereof fome had three voices, fome two, and fome but Pol. 1. 3. c. 9. one, and accordingly all charges were divided and paid. And this is but jufi, faith Arifio- tle, if the defence of their common poffeffwns were the chief caufe of their Confocidtion. XXIII. Of all Societies, that of divers Matters of Families embodyed in one City or Nation, The right of as it is the moft perfect, fo it gives a greater right or power to the whole over every pare focieties over t h e reof, than any other Society whatfoever. Neither is there any outward aft done by any one Citizen, but what either by it felf doth, or by circumftance may, refer to the confervation of that Society : For as Arifiotle tells us, The Laws do rule m in things of all forts. And their Citi- zens Chat. v. Whether Citizens may fmjake their City. 1 1 5 And here it may be queftioned, whether it be lawful for Citizens to forfake their City X X I V. without leave given. There was m ancient Cuftontf faith Servias, that he that tranfplanted Whether Ci- himf elf into another Family or Nation, did firft renounce that wherein he formerly dwelt, and defcrc ni their then was received. And trne it is, that in fomc Countries it is not lawful to forfake the C j ty< City without leave •, as in the City of Mofco : Neither do 1 deny that it is poffible for Miriam lih a Civil Society to be entred into under fomefuch Agreements-, and that Cuftonis may in- 28. c 13- troduce the force of fuch an Agreement. Yet by the latter Roman Laws, it was lawful for any Citizen to remove his Habitation, yet not Co, but that he ftood ftill obliged to exe- cute fuch Offices in the City, as fhould be impofed on him : Neither were thele to depart out of the Roman Territories, and fpecial care was taken by the Law it felf, that they ihould pay their Contributions. But fetting afide thefe municipal Laws and Conftitutions, let us difenfs this queftion according to natural Right •, and that not of any one part, but of the whole City, though under the Supreme dominion of one Perfon. And furely that they cannot recede by Flocks or great Companies, is eafily collected from the n«ef- lity of the end , which in moral things is able to create a Right : For if this Ihould be lawful, there might inftantly follow a diflolution of that Civil Society. Zonoras fpeaking of King Lazju, who revolted from the Perfians to the Romans, makes it the caufe of a juft War between the Perfians and the Romans, that the Roman General had drawn unto him- felf the Subjects of the Kings of Perfta. But as touching the departure of fome particular perfons from a City, it is much otherwife : As it is one thing to draw water out of a Ri- ver, and another thing to turn the courfe of it. Every Qtiz.cn (faith Triphonius) is free either to ft ay in, or to depart from his own City. And Cicero, in his Oration for Baldus, com- mends this Law , That no man fliould be enforced to ft ay in a City againft his will, and thjf he lays down as the foundation of Liberty, that every Freeman htth abfolute power over himfelf, To hve where either to remain in it or to recede from it. And yet herein alfo we are to fubmit to natural ^ ioundatU equity, which was the Rule that the Romans walked by, in duTolving private Societies:, on of liberty" that it Ihould not be lawful, when the publick was damnified by it : For as Froculns right- ly obferves, Always not that which is profitable to fome one of a Society, is ufually to be obferved , but what is expedient for the whole. But it is expedient for the whole Society, that in cafe any great publick debt be contracted, no Citizen fliould forfake the City, unlefs he have firft paid his proportion of it : Alfo if upon confidence of the num. ber of their Citizens, they have begun a War , but efpecially if they are in danger to be befieged, no Citizen ought to forfake the City, till he have firft provided a Perfon as able as himfelf, to defend the Common-wealth. But unlefs it be in thele cafes only, it is pro- bable enough that the people do give their confent that any Citizen may freely depart, becaufe even, from this liberty , they may make no lefs advantages to themfelves fome other ways. So likewife no City can have any Right over thofe whoirrfhe hath banifhed, as we XXV. fhall Ihew anon *. The Heraclida being banifhed Argos by Euryftheus, and afterwards A cit y hath perfecuted by him, do thus plead by their Advocate Jolaus ; By what Right doth he pro- "° r p ^ r £'. fecute us now, whom he banifhed his City, for now we are no Subjects of his. And Al- niflied. cibiades his Son fpeaking of the times of his Fathers banifhment, tells the Athenians, that Lib. 3. c. 20. The welfare of their City did nothing concern his Father. So likewife Nicetat fpeaking of Ifaac §• 4 1 * Angelus, faith , It is no new thing for any man to court and flatter his Enemy , that is but fen- fible that his own Countrymen do perfecute him as their Enemy. But now the confociation of feveral Nations ( whether by themfelves or their Governors) are called Leagues ; of the nature and effects whereof we fhall have occafion to fpeak, when we fhall treat of Obli- gations which arife from Contrafts and Agreements. • There are alfo voluntary fubjections, and thofe either private or publick, the private ^V^ . vary according to the feveral forts of Government : that which is moft noble is that of m™ rath" 8 Arrogation or Adoption, whereby a man tranflates himfelf into the Family of another \ ver his adopt" fo as he behaves himfelf with that duty and reverence, as a Son of mature Age fhould do ed Son. rowards his own Parents. No Father can poffibly transfer his Paternal Right over his Son to another man fo fully, as to be altogether difcharged of the duty incumbent on him as a Father : Nature it felf will not admit of fuch an alienation, but yet he may commit his Son to another man to be fed and educated by way of Subftitution. The moft ignoble of all Subjections is that, whereby a man gives himfelf up to perfect XX VI f. flavery: Such were they among the Germans, of whom Tacitus fpeaks, That fold themfelves what power for food and rayment. And of fuch there were great numbers among the Grecians, who v orcls hayeo- (as Dion Prufaenfts notes ) of Freemen became Slaves, and performed their fervice according to Slaves. K ' r Articles of Agreement. Now that we call perfect Bondage, which tyes a man during life to perform all manner of work, for no other reward but food and cloathing , which if it extend it ftlf to whatfoever conduceth to the prefervation of Nature, is not much to be grieved at: For our continual labour is indifferently well recompenled with a conftant Supply of things neceffary for life, which they that hire out themfelves by the day only, do Q^ 2 ofterv 1 1 6 The <%ight over Slaves and their Children. BOOK II. often want. This the Stoick Pojfidonius obferved out of Hiftories , that many in ancient times, confcious of their own weaknefs to maintain themfelves, voluntarily fubmitted themfelves to be commanded by others, Conftantly performing what they were able, and rt- tewing from their Lords whatfoever was necejfaryfor them. Like him in Plautus. Jf I were frte, the charge were mine ; £ut being bound, that charge is thine. XXVIII. No Lord can have absolute power over the life and death of his Slave, if wc refpect whether this internal Juftiee : For no man can take away the life of another, and be guiltlefs, unleis P "" e *', it be for fome capital crime committed j and yet by the Laws of fome Nations, he that and death. C ma " kill his Slave for what caufe foever, is indemnified, as Kings are in all Nations by re^n of their vatt and unlimited power. For as Seneca notes, If a Servant dare not plead Di bemf.tib. 3. with his Maflcr for fear of fujfering the worft of torments, no more dare Sttbjecls with their Prince* t. as. nor Soldiers with their General, who have all ef them equal Right, though under unequal Titles. No Matter then hath a juft power to injure his Slave, but only as That is fomctimes improper- ly called Jufi, which being done, is not punijliable. Such a Right did So/uwgiveto Parents over their own Children, and fo did the ancient Roman Laws, witnefs that of Sopater , It was lawful for him, being a Father, to kill his own Children, if they offended; for the Law C pre fuming upon the Fathers Integrity ) had permitted fuch a Right unto him : The like power, faith Dion, we find permitted in many Nations famous for wife and wholefom Laws. XXIX. 1 ^ ut °f tne children of Captives, which are born of Slaves in their Lords Family, there of the chil- » yet a more difficult qucftion : For by the Laws of the Romans, and of other Nations, drenof Slaves concerning Captives (as we fhall elfewhere (hew) as of brute Beafts, fb of people of that are born a fervile condition it holds true, that, Partus fequiturVentrem; As is the Mother, fo is the thfir b Maficr" P*^' But tms notwithstanding is not altogether congruous to the Law of Nature, efpe- family. c ' a "y where the Father of the Child may be fufficiently known: For fince even among Vide infra ch. dumb creatures, as Pliny obferves k of Doves, Amor unique fobolis tqualis; Both Parents 8. §. 18. are equally concerned tor their own young, thereby acknowledging their common inte- lUny l't col'm- rcft ' n them ' So a ^° "^ not tiie ^ iv '' L,avv ot herwife determined, the Child had follow- !£ * ed the condition of the Father, no lefs than that of the Mother : For if the Son ( faith the lex Vifigo- Vifigothick. Law ) be bom and created by both Parents, why [hould he follow the condition of the tbict. Alother only, who without the Father could not beget him ? Among the Sclavonians, as alio in The sclayoni- j ome pj rCs Q ^ Italy, among the Lombards and Saxons, the children are accounted either eth the Chil- bond or free from their Father. The Laws of England judge of the Child, not by the Mother, dren by the but by the Father; for the Husband and Wife, being but one perfonin our Law, and the Wife mar- Father. tying a Freeman, by the cpmmon Law of England, the lfjue is free: Which Laws, though The Laws uf different from the .foww; Civil Law, yet, as Aquinrn notes, doth not much deviate from LitHe'ton de tne ^aw of Nature. And why not , fince among the Romans, by their Menflan Law, if ViUanagio. both the Parents were Aliens, the Child born of them were fo too, as Vlpian tells us. The Roman Now let us admit that both the Parents are Slaves, it is worth our pains to know whe- Laws * ther naturally the Child be fo or not? And certainly if the Parents have no other means of Nature 3 is t0 °reed up the Child, but in their Lords family, or at his charge, they have a power in this cafe. t0 deliver him up to the Lord for a Slave. For although the Child were ingenuous and If the Parents free-born , yet in fuch a cafe they have power by the Law to fell him: And in cafe cannot main- the Parents were Servants to feveral Matters, then by the Law of Nature the Children but* '« the weie ro be divided between their refpe&ive Lords. But it they had but one Child, then Lords charge, °f r '§ nt ' £ belonged to him whole Slave the Father was , the Lord of the Mother being the Child is a firft fatisfied for his half part ; and yet of the Children of him that was born in the houle Slave. of his Lord, two parts did accrew to his Lord, and but one to the Lord of the Mother, Otherwife according to the Edift of Theodoric, as Cajfiodore records. Now whereas I faid before, aot. that the Parents, if they had not any means to breed up their Children, but at the charge of their Lord, might deliver them up unto him as his Slaves •, it may feem that this Power doth naturally arife from their fupplying them with food and other neceffaries, and there- fore where there is no fuch neceflity , as where there are other means to breed them, they have no right to fell them : And To it was adjudged by Charles the Bald, wherefore the Right that thefe Lords have in the Children of their bond-fervants, fprings from the many years Alimony that is given them by the Lord, before they could be ferviceable to him, which they are to recompenfe by their future labour. And for this caufe, the Parents cannot difpofe of them to any other man, neither may the Servant flee from his Lord, until full fatisfa&ion be given unto that Lord for the charge of their education : But if the Lord be too unmercifully cruel, then that even they who have furrendred them- felves as Slaves, may provide for their own fafety by flight, is the molt probable opinion, Gil. 6. 5. notwithstanding the charge given by the Apoftle, and by the ancient Canons, forbidding VvJ'f'at Servants to flee from their own Matters ; becaufe thofe Precepts were general, andoppo- led Chap. v. fyblick Subjection. \\y fecfonly to that error which was then growing, namely, that denyed all manner of fub- jeftion, whether publick or private, as tfeing inconfiftent with Chriftian Liberty. Befides that flavery which is perfect, there are others imperfect •, as thofe that are li- XXX. mited to a certain time, or to certain things, or upon conditions-. Of fuch there were There are d?- divers among the Romans-, as that of their liberti, next., additti, affcriptigleb^ftatttliberi: Jj ers . k, " ds <* As alio among the Jews, there were thofe that ferved feven years, and that bound them- emcu "' ielves until the next Jubilee, and then were free : And fuch were the Penefia among the Theffaloniahs, and all Mercenaries, amongft whom are to be reckoned our Apprentices here in England, who for a certain number of years a/e under fo hard a difcipline, as doth but little diftinguifh them from thofe of a fervile condition, and fuch like. All which differences do depend, either upon fome Laws or upon fome Contracts, his fervitude al- fo feems to be naturally imperfect, who is born of Parents, whereof one of them is bond and the other free, for the caufes aforefaid. Publick Subjection is, when any one Nation or People do give themfelves up to the XX XL power and command of another, either of one man or many, or of another people or Publick Sub- Nation: The form of fuch a voluntary rendition, we have already fetdown in that of Kftion by Capita : The like is that of the people ol Collatia, Do ye give up unto me, and unto the ju- conftnu rifdiclion of the People of Rome, rkCollatine People, with their City, Fields, Water, Bounds, Temples, Vtenfils, with all things elfe whither Divine or Humane ? We do, fay they : And 1 ac- cept thereof. Whereunto Plautm feems to allude in his Amphitryo. All which the Per funs comprehend under the general names of Earth and Water : This is an abfolute Subjecti- on ; but there are fome like wife that are not fo full and abfolute, in refpect either of their manner of holding it , or of that arbitrary power of command, of the feveral degrees whereof we have already elfewhere difcourfed. ' Lib. i. c. 3. There is likewife an involuntary fubjection, when by reafon of fome delinquency, we X X X 1 1, forfeit our liberty, and are forcibly reduced into fervitude, by fuch as have a right to what Right h punifh us •, and who thofe are we lhall fhew hereafter And thus may not only private gained t>ver men be brought into flavery, as at Rome, Qui nd dilettum non refpondebat. -, He that refufed P erIons by to perform an Office, being thereunto chofen, and they that were not enrolled or regiftred men°. ^^ in the number of Citizens-, and afterwards women, who though other wife ingenuous, yet if they married another mans fervant, loft their own freedom. But the publick things of a Nation may be thus fubjected, for fome publick injuries done •, but with this diffe- rence,, that if the State be brought into captivity, it is perpetual. For, as in the Laurel, though the leaves dye, yet is the Tree always green •, fo though every perfon in that Na- tion be mortal, yet doth Succeflion make the people immortal : But in perfonal bondage, Noxafequitur caput, The punifliment never exceeds the perlbn offending-, but both thefe fervitudes, as well private as publick, being penal, may be either perfect or imperfect, according to the offence and punifhment thereunto due . Now of that fervitude, whether private or publick, that arifeth from the voluntary Law of Nations, we lhall have Occa- sion to treat, when we come to the direful effects of War. CHAR u8 . Of the %ight of Alienation. BOOK II. CHAP. VI. Of that Right which is derivatively acquired, by the voluntary Faft of a man, wherein is handled the Right of Alienation of Empires, and Things there- unto belonging. . I. To mal$ an Alienation -valid., what is re* IX. Vnder this Title of Alienation, all Feojf- quired from the Giver. ments and Morgages are comprehended. II. What is required from the Receiver. X. So under Emptres^are all Itjfer Jitrif dictions III. That Empires may be alienated, fometimes which cannot be alienated but by the fpecial ■ by the King, fometimes by the People, confent of the People, or by Cuftom. IV. That the Government over one part of a XI. No more can the Peoples Patrimony be alie- Nation, cannot be alienated by the people, nated by the King. if that part dtjfent or be unwilling. XII. That the fruits and mean profits of the Fa- V. Neither can one part alienate the Govern- trimony, tnufl be difiinguifiied from the Pa- i tnent over themfelves, unlefs in cafe of itn- trimony itfelf. avoidable neceffity. XIII. Some parts of the Peoples Patrimony may VI. TheCaufesorReafonsofthis. be engaged by the King for debt s, how far, VII. That the Empire over fome place, maybe and why. alienated. YAV .That a mansl eftament is a kind of Alien a- • VIII. That no part of an Empire may be if lie- tion, and is warranted by the Law of No- vated by the King ^either for profit or necej]ity. tare. T If ^ff Itherto we have fpoken of Original Right : Now we are to treat of that Right what is re- f f 1 which we derive from another, and this may be done either by the fact of the quifite to a | Perfon that gives it, or by fome Law that warrants it •, for that the right own- perfect Alie- Jk* -A. ers of things (hould have power to aflign their interefts, either wholly , or in nation, part, unto others ( propriety being once introduced ) is moll agreeable to the t _. Law of Nature : And therefore Arifiotle places it in the very definition of Dominion, As if that only were truly and fimply ours, which we have a Right to alienate. Wherein two things only are to be obferved, one in the Donor, the other in the Donee : Firit in the Doaor, the internal aft of the Will only is not fufficienr, unlefs it be declared by fome overt act, as by words, or fome other external figns. For of the inward acts of the mind, we are no competent Judges ; neither is it congruous to the nature of humane fociety : But that there (hould be alfo a publick delivery of the thing transferred, is required by the Civil Law, which being now received by molt Nations, is (though improperly) faid to be required by the Law of Nations. So in fome places it is required that every Alienation fhouldbepublifhed, either before the People, or before the Magiltrate, and that it fhould be alfo recorde'd •, all which do certainly proceed from the Civil Law. But becaufe every Alienation of a mans Right ought to be done with found Judgment, therefore the acts of the Will, that are expreft by fome overt figns, are to be underftood the acts of a mind endued with Reafon. j t_ So likewife in the Receiver, fetting afide the Civil Law, it is naturally requifite that what iii the he lhould exprefs his willingnefs to accept of it, by fome outward figns-, which though it Receiver. be ufually fubfequent to the tender of the giver, yet may it alfo precede it : As when a man requires that fuch a thing fhould be given him, in this cafe it is prefumed, that he is willing to receive it, unlefs it do appear that he hath altered his mind^ as to other things requifite, as well to the transferring, as to the acception of a Right in thing?, and how both may be fafely done, we fhall fhew more fully, when we treat of promifes \ for concerning both thefe, Nature hath prefcribed the fame Rules. ... As other things, fo are Empires alienable by him, in whofe dominion they truly are \ Empireswhe- t ^ at ' s > as vve nave ^ De fo re > by a King whofe Kingdom is Patrimonial : But otherwife theralienable. hy the people, yet not without the Kngs confent, becaufe he hath a kind of Right in it, jy though but to the prefent revenue, which cannot without Jiis own act, be taken from That the mm : Thus itftands with a whole Soveraign Empire.' whole cannot But as to the Alienation of any one part of the whole, it is further requifite that that alienate the p ? , r t that is to be alienated, confent thereunto. For they that firft ent'red into that focie- pans that tV) jjj (^ raav be prefumed) contract a firm and immortal League among themfelves, the Alienit? {or t ' le defence of all thofe parts which are called Integrants : Whence it follow?, that on. thefe C h a p. v i. Of the d^/V/rf of Alienation. 1 1 p thefe parts are not fo under their own body, as the members of a natural body, which cannot live without the life of the body, and are therefore for the prefervntion of t body fometimes juftly cut ofE But this body whereof we now fpeak, is conftituted after another manner, namely, by mutual confent and agreement-, and therefore its power over its parts depends wholly upon the will and intention of them who firft inftituted that fociety, who without doubt would never have granted fuch a power to the whole, as to abfcind from it felf any of its parts, and to give them up into the power of another. Neither is it, on the other fide, in the power of any part to recede from the whole, y unlefs it be evident , that it cannot otherwife fubfift : For, as we have faid already, N or any pare In omnibus qiu flint humani infiituti , excepta videtur necejfitas fumma, qua rem reducit ad over them- merutn jus nature ; All humane conflitutions give place to the Law of Nature , in cafes of fclves, but in unavoidable neceffity. Almoft all Nations (faith St. Auguftin ) are taught by the very voice "fcsofnecef- of Nature , to fubmit to the will of the Conqueror , rather than to hazard an utter devasta- tion. And therefore, as Herodotus notes, In that Oath, wherewith the Grecians bound themfelves to be faithful to the Perfians as to the Conquerour , this Salvo was added, Nifi plane Vide injrt c. coaEli; Vnlefs they were manifefily forced to the contrary. Thus we read that Anaxilaiu was 24- §• 6. defervedly acquitted by the Spartans, for delivering up the City Byzantium, being diftrefled more by famine within, than by the Sword without. And Xenophon tells us, that the Em- perour Auafiafits' returned thanks to his Commanders, for their timely furrender of the City Martyropolis, thereby preventing the unneceflary effufion of blood, fince it was im- poffible to be defended. Cum fame habit are virtus recufat; Valour will not cohabit with famine, faith Vrocopiw, neither can we expetl that Nature fliould all vigorou/ly, when flie wants neuriflj- Cotb. I. 4. ment. So CephaUs (in his Epiftle to the Emperor Alexius) being ftraitly befieged in La- A ^ comma. riffa, Yielding to neceffity we mttft deliver up the Town to thofe, who not only befiegeus, butmani- ub'.6>. nifeflly fiarve us, (for what can valour do againfi the force of Nature ? Now the reafon why, in cafes of abfolute neceffity, every part of the fociety hath more v I. right to defend it felf, than the body of that fociety can have over its parts, is ; becaufe The caufes of that part that is fo neceflitated, may ufe that Right which Nature gave it, before that fo- this different ciety was inftituted, which the whole fociety cannot: Neither let any man fay, that the P ower - Right of Empire is in the whole fociety, as in its fubject, and therefore may be alienated by it as things held in propriety may ; for the Government is indeed in the whole body as in its adequate Subject, (but not divifibly in many bodies) as the Soul is in perfect Bodies. But that neceffity that enforceth us to flee back to the Original Right of Nature for defence, cannot here have place : For under that Right the free ufe of Nature is comprehended, as eating, and detaining what is ours, which are natural, but fo is not the Right of Aliena- tion, which receiving its authority from humane inftitution , is from it to receive its bounds. But as to the Empire over fuch a place, being a part of the Territory that lies uninha- v I T. bited and defart, 1 cannot difcern any reafon at all, why it may not be alienated either by That the En> a free people, or by a King with his peoples confent. For as every part of the people P're ovtr have equally freedom of Will , fo have they equally a Right to gainfay whatlbever any fome , P'jj Ce other would have •, but the Territory it felf, whether wholly, or in itspart,confidered,is nitcd. 6 the peoples Common undivided, and therefore wholly at their difpofe •, but as to the fo- veraignty over any part of the people, if, as I have faid, it cannot be alienated by the whole body of the people ; much lels can it be done by a King, who though he have the full power, yet he hath it not fully. And here 1 mull crave leave to diffent from thofe Civilians, who hold that no part of aa v fl I. Empire can be alienated by a King, unlefs it be for publick profit or out of neceffity; un- No part alie- lefs they underftand it in this fence, that where the profit doth equally accrew, both to the nab 'e either whole Nation, and to that part which is to be alienated, the confent of both may eafily for V ff°\? T be collected from their filence, though of no long time, which may much more eafily be ^g alone? * prefumed, if there appear likewife a neceffity for it: But if either part do manifefily de- clare againft it, there can be no Right to alienate, unlefs the part be evidently enforced either to feparate from the whole, or fuffer themfelves inevitably to be deftroyed. Under Alienation is defervedly comprifed even Infeudations, under penalty of confif- I X. cation for breach of Faith,given to the Lord of the Feoff; or when the Family is extinct *: infeudations For even this is a conditional Alienation, wherefore we often fee, that as thofe Alienati- andMorgages ons, fo thefe Infeudations of Kingdoms which Kings have made without the peoples con- "i^Emprre fent, yea, and the Remiffion of Homage too,have by many people been made void. Now unlawful. the people are faid to confent, either when the whole body of them do meet to exprefs it, *subtnertcm- as the Germans and Gauls were wont -, or when the feveral Provinces do it by their Depu- mifatrfelmia ties, being thereunto fufneiently authorifed. As in the German Empire, the confent of r^ff^l the Princes Electors doth both by Cuftom and Covenants, conclude all the orders thereof /,,, ft4 ,$. t2 . in any Alienation .- for* Whatfoever we do by another, is reputed our own aSl ; ldfacimus quod per alium facimm. So neither can any part of an Empire be morgaged, without the like confent-, 1 2 o ' Of the <%ight of Alienation . BOOK II. confent ■, not only becaufe it ufually introduceth an Alienation, but for that Kings are bound to their Subjects, to cxercife the Soveraign Power by themfelves, and fo are the people in general to their refpective parts, to conferve the adminiftraticn of the Empire entire, this being the chief end of their Confociation. X. But as to other kffer Civil Functions, I fee no reafon why the people may not, by an Inferior Jurif- hereditary right, grant them at their pleafure, becaufe they do not thereby diminiih the "hf'Tl* IT ' r,c ' re y of the Empire •, yet cannot aKingdo it without the confent of the people, the King. if we confine our felves within the bounds of nature, becaufe the effects of a temporary . power, fuch as Elective, and legally fuccefiive Kingdoms are, can be but temporary , yet may the people, as well by their exprefs confent, as by their long continued filence, give that Right to their Kings. For fo the Hiftories of the Medes and Perfians do inform us, that their Kings ufurping this Right, did anciently give away whole Towns and Provinces, to be held by a perpecual right. X I. That part of the peoples Patrimony (being amongft the ancient Grecians a part of the Nor the peo- common Fields ) the fruits whereof were defigned for the maintenance either of the pub- pies pgtnmo- jj^ cnar g e f tne common- wealth, or of the Royal dignity, cannot either in the whole, y ' or in any the leaft part thereof, be alienated by Kings without the confent of the three States, that is, the Clergy, Nobles, and Commons •, becaufe they have no right to any thing more than to the prefeht profits, no not to the fmalleft part of it, as I have laid : For, Quodmeum non eft, ejus nee exiguam fart em alienare mihi \m eft\ Of that which is not wine, 1 cannot alienate the fmalleft fart. Yet the people may fooner be prefumed to confent by their knowledge and filence , in fuch fmall matters than in greater : And the like may be prefumed in cafes of common profit or danger, concerning the alienation of fome parts of the Empire, if it be not of any gteat moment, for that Patrimony was at firft instituted for the good of the Empire. XII. B ut many are deceived in that they do not rightly diftinguifh between the things ari- The patri'mo- fing from the Patrimony as its fruits or profits, and the Patrimony it felf. As for example, riy to be di- t he warning of the banks of a River is patrimonial, but the increment which the Flood fiinguifhed p ro duceth is but the fruits and profits of it : fo the power and right of railing a Tax is me^n 'J^. patrimonial, but the mony fo raifed is but the profits of that Right. The right to confif- " cate is patrimonial, but the Lands confifcated are but the profits of that right. XIII. Thofe parts of the peoples patrimony, which are fo deligned as aforefaid , may upon How far forth j u fl; cau f e be pawned or morgaged by Kings, that have full and abfolute power, that is, that part of tnat ^ xe p 0wer U p n occalion to raife new Taxes upon their Subjects : For as Subjects the peoples ^ ^ ounc j to p ay f uc h T ase s, fo are they likewife bound to fatisfie that, for which any raayte°pawn- part of their patrimony is for the publickgood pawned, the redemption whereof is fome ed by the kind of Tribute. For the very patrimony of the people is a kind of pawn given to the King , and y^\ng f or tne payment of the publick debts , and any thing that is thus pawned to me, why ' I alfo have a right to pawn to another : Yet what hath hitherto been faid is of force, un- lefs it be where the Laws of the Land do either enlarge or contract the power either of the Prince or the people. XIV. This alfo mult be obferved, That under this Title of Alienation, we comprehend like- Teftamems wife Teftaments : For though Teftaments, as fome other acts alfo, are beholding to the a kind of Ali- civil Law for their form, yet is the matter of it nearly allyed to dominion ■■, and it being enacion. granted to the Law of Nature. For a man may by Teftament give away his Eftate, not jirift. vo . .2. ^ ^^ k ut unc | er certain conditions, nor irrevocably only, but with a power to revoke \ and yet he may ftill keep the poffeffion of what he fo gives, with a full right of enjoying it: For a Teftament is an Alienation of a mans Eftate at his death, and revo- cable till then, and yet referving in himfelf the full poffeffion, and abfolute fruition du- • „ ring life. And therefore Salon, in permitting his Citizens to make their Teftaments, Made Vide 'fiipra Bo. them abfolute Lords and Proprietors of what they had. Surely our Eflates would be but burthen- I. ib. 3. $. 12. font unto us, if the power we have in it during life, flwuld be taken away from us at our deaths. Abraham in purfuance of this Right ( had he dyed childlefs ) had left, by his Teftament, all his Eftate to Eliez.tr , as we may collect from Gen. 15.2. And the making of Tefta- ments was of frequent ufe among the Hebrews, as may appear, Dent. 21. 16. Ecclttf. 3 3.25. But that in fome places it is not permitted to Strangers to make their Wills, is not to be attributed to the Law of Nations, but to the municipal Laws of fome Countries, and if I miftake not, enacted in fuch an Age, .when all Strangers were accounted enemies , and therefore amongft the more civilized Nations hath long fince been worn out of ufe, CHAP. Chap. vii. Some of the Civil Laws unjufi. ill CHAP. VII. Of that Right that is acquired by Law, and of Succeffion from an Inteftate. I. Of the Civil Laws fome are unjufi , and therefore cannot transfer a Right, as in things jlnpwrackt. I I. By the Law of Nature, a Right may by gained, in things taken from another for a juftdebt\ and when. III. How Succejfion to an Intefiates efiate doth naturally arife. IV. Whether by the Law of Nature, any part of the Parents goods be due to their Children, explained by diftinUion. V. The Children of the deceafei preferred to the Efiate before their Parents , and why. V I. The Original of Reprefentative Succef- fion. VII. Of Abdication and Exheredation. VIII. Of the Right of Natural Ijfue. IX. Where are no Children, nor Will, nor certain Law extant, the ancient Eftatejhall return from whence it descended, and to their Children. X. But that which was lately gained to the nearefi in blood. X I. The Laws touching Succejfion are di- verfe. XII. How Succeffion takes place in Patrimoni- al Kingdoms. XIII. In Kingdoms Indivifible the fir fi- born to be preferred. XIV. That Kingdom, which by the peoples confent, is hereditary; if in doubt, ispre- fumed indivifible. X V. The Succejfion not to lafl beyond the line of the fir fi King. XVI. Natural Iffue not at all concerned in it. XVII. The Male Jjfue preferrd before the Female, within the fame degree. XVIII. Of the Males , the eldeft is to be preferred. XIX. Whether fuch a Kingdom be part of an Inheritance. XX. It may be prefumed that the Right of Succeffion to a Kingdom did agree with [ that of Succeffion to other things at that time when that Kingdom began ', whether Absolute : XXI. Or held of another in Fee. XXII. Of Lineal Suceeffion to the next in blood, whether Males or Females ; and how the Right is thereby tranfmitted. XX II I. Of Lineal Succejfion to the Male Iffue only, called Agnatical Succeffion. XXIV. Of that Snccejfion which always n\ fpetts the nearefi to the firfi King only. XXV. Whether a Son may be exhereda- ted , fi as to bar his Succejfion to tht Crown. X X V h Whether a King may for himfelf and his Children , renounce his King- dom. XXVII. Concerning the Right of Succejfion, the Judgement, to fpeakjroperly, is neither in the King nor People. X X V 1 1 1. A Son born before his Father was King, jhaS be preferred before him that was pofinate : XXIX. Vnlefs it be otherwife provided by fome other Law. XXX. Whether the elder Brother deceafed, his Son be to be preferred before the youn- ger Brother, explained by difiinttion. XXXI. Alfo whether the younger Brother living, be to be preferred before the Kings elder Brothers Son. XXXII. Whether the Kings Brothers Son be to bepreferred before the Kings Vncle. XXXIII. Whether the Kings Son be to be preferred before the Kings Daughter. XXXIV. Whether the younger Son ef a Kings Son be to be preferred before the eldefi Son of a Daughter. XXXV. Whether the Daughter of the eldefi Son be to be preferred before the younger Son. XXXVI. Whether the Son of a Sifter be to be preferred before the Daughter of a Brother. XXXVII. Whether the Daughter of an elder Brother be to be preferred before the younger Brother. Aving thus fhewed what Right may be derived from another by his Aft, now we are to treat of the Right that is derived from another by Law ; Some of the And this is, either by the Law of Nature, or by the voluntary Law of ^ n Ir J| l J " Nations, or from the Civil Law. It were endlefs to treat here of the Ci- vil Law, neither are the main Controverfies concerning War thereby determined} and therefore we (ball purpofely omit it. Yet is it worth our Obfervation to know, that fome of the Civil Laws are apparently unjuft •, as that which adjudgeth goods Shipwrackt unto the Kings Coffers. For to take awayanothers Right and Propriety without any preceeding caufe, that is probable, is a rrianifeft injury. Thus pleads Helen in Eu- ripides, R Wreckt, 122 Of^lght acquired by LawofSuccejfion to an Inteftate. BOOK II. Utlta. Wreckt, and a Stranger came I in, Such to defpoil, is horrid fin. For what Right, faith Conftantine, can the misfortunes of another create to a King, that he "Ss'ul'l 12.' ftould be enriched by a calamity fo much to be pitied. And therefore Dion Prufaenfis, in an Oration of his concerning Shipwracks, crys out, Abfit, O Jupiter, ut lucrum captemus tale, ex hominum infortunio ; Far be iff Jupiter, from me to take fuch advantages by other mens misfortunes. And yet fuch a Right do the Laws of Nations very unjuftly give; as amongft the Eng Ufa, the Sicilians: And fuch an ancient Law Sopater mentions to be in force in Greece. Chrijtian King of Denmark., upon the abrogating of this Law, com- plained, That he loft an hundred thoufand Crowns yearly. Nicetas fpeaking of this Law, calls it a Cuftome fo barbarous as is not to be named. What then was Bodines meaning to defend this Law ? He, namely, who reprehended Papinian for chufing rather to dye, than to aft againft his own Confcience. j J, Propriety or Dominion being introduced, it follows, by the Law of Nature, That A man may things are alienable two ways: Firft, By commutation •, which confifts in the making up have a Right of that Right which I want, whereby the ballance of Juftice may be made even : or Se- to that which CO ndly, By Succeffion. Now Alienation by way of Commutation or Expletion is when anodie" and f° r f° m ething that is, or ought to be mine, which I cannot receive in kind, I take from when. ' him that detains it or fomewhat in lieu thereof, that is, fome other thing of equal value. SeeBo^.?. Thus hen&us excu let h the Hebrews for robbing the Egyptians of their goods, Which, cb. 7. $. 6. f a j tri nCj t ij e y might take and keep in compenfation of their labour. Now that Dominion may be thus transferred, is eafily proved from the end, which in moral things is the belt proof. For how otherwife can I be faid to receive my full Right, unlefs I become the right owner of it? Seeing that it is not the bare detention, but the full power to ufe and dilpofe of it at my pleafure, that makes the Scales of Juftice even. An ancient exam- ple of this we have in Diodorm, where Hefion&m in lieu of thofe things which being pro- mifed to his Daughter by Ixion, but not given, took away his Horfes. For Expletive Juftice, when it cannot recover what is the fame, endeavours to get the value of it, which in a moral eftimation is the fame. By the Civil Law no man, we know, can do himfelf Right : Nay, if any man (hall with his own hands take away from another, though but what is his due, it fhall be imputed unto him as Rapine, and in fome Countreys, he fhall lofe his debt. And although the Civil Law did not dieftly forbid this, yet from the very in- ftituticn of publick Tribunals, it may eafily be concluded to be unlawful. But where there are not publick Courts to appeal unto (as on the Seas and in Defarts ) there the Law of Nature mult be our guide. So it fhould fometimes, when the Laws ceafe but for the prefent, that is, if the debt can never be got otherwife : As, if the Debtor be ready to fly theCountrey before the Courts can be open; in which cafe the Creditor may lawfully have recourfetothe Law of Nature: Yet fo, that the Judgement of the Court mult afterwards be expected, before the Right of Propriety can be allured, as in the cafe of Reprizals •, as fhall be faid hereafter. But yet, if the Right be certain, and it bealfo morally as certain, That a man cannot by a Judge receive fatisfaction for want of due proof, the belt opinion is, That the Law concerning Judgements ceafeth, and that a man may have recourfe to the ancient Law of Nations. II j # Dominion being once introduced, that which naturally guides the Succeffion to the The Effore of eftate of a perfon dying inteftate, fetting afide the Civil Law, is our conjecture at the an inteftate to Will of thedeceafed. For feeing that the force of Dominion is fuch, that it may be wll °™ n ™~ transferred at the will of the right owner, unto another : Therefore in cafe a man dyes f"ends. polfeft of an eftate, leaving nothing to teftifiehis mind after his death -, becaufe it is not credible that he would leave it to him that could next catch it, therefore fhall it fucceed to him to whom it is probable be would have left it, had he lived to have declared it. DefunUorum voluntatem intellexiffe, pro jure eft-, faith Pliny Junior ; To have under flood the , Will of the deceafed, isfufficient to create a Right. Now to the dead this favour is indulged, That in cafes that are doubtful, it is prefumed, That every man would do that which is molt juft and honeft ; whereof in the firft place is the payment of his juft debts, and in the next, that which, though not due, yet is molt agreeable to our duty : And there- fore what is committed to a mans trufi may be reftored, faith Paulas, (the perjon dying Inteftate th.-.ttruflcdit) to thofc that fucceed bim, becaufe it may be believed, That his Will was freely to leaz'e the lawful Inheritance unto them. IV. It is much controverted by Lawyers, Whether Parents may be faid to owe their chil- whether Pa- dren Aliment : Some of them hold it to be agreeable to Natural Reafon, but deny it to rents do owe be a Debt. But we think it fit here to diftinguifh of the word Debt, which may be taken fVid their n eitncr ftridtlv, for that which by Commutative Juftice we are obliged to do ; or largely, part oTtheir f° r tnac wnicH cannot with honour or honefty be left undone, as being a duty arifing goods. from Chap, v i i. Of Suae jf ion to the Eftate of an Jntejiate. 113 from another fpring, but not from that of Juftice. Now Aliment is due to Children Fi^ R eafon. (if Humane Laws do not otherwife determine of it ) in this Iooferfenfe. In which, I conceive, that of Val. Maxlmus is to be underftood, Our P.irents by hounding ut, have hid this obligation upon hi to nourifli our Children. And that alio of Plutarch, in that molt elegant Oration of his, concerning the Love of Parents towards their Children, Libert hareditatem, ut fibi debitam, expetlant\ Our Children look for our eft -ate s, as due unto them after ear death. So great was the Equity of this, That St. Auguftine would not admit that the lib. %dt vita goods of fuch as had exheredated their own Children, fliould be received by the Church. And eler.&ftr.^2. as Procopim \n\\\sperfian Wars obferves, Though Humane Laws do in other things extreamly J« f « '»«''" differ one from another, yet all Nations, as well Romans ^Barbarians, in this agree, Gr'atian.c.12. That Children fhould fucceed to their Parents, as the right owners of what they leave. Again, q. z.&c.i 7. Quiformamdat, dat qua adformam funtnecejfaria. He that gives the form gives things necef- #• 4* »'»/&«• fary to that form, faith Ariftotle. Therefore he that gives man his exigence, ought, as sw'Vr a- much as in him lies, to provide for him all things neceilary for a Natural and Social life ; f on ° a( for hereunto he was born. There needs no Law to bind us to this duty •, for all other creatures, even by Natures inftincft, do feed their young : As Pliny obferves of Swal- lows, That with great equity they feed their little ones by turns -, ( Summa Aquitate alternant cibum. ) Hence it is, that the Ancient Civilians do refer the Education of Children to the Law of Nature. And Euripides comprehends all Creatures under one and the fame Law, Which, faith he, is common as well to men Among themfelvcs, as to them, with all other fenfible Creatures. For that which Natural Inftinft commands to them, the fame doth Reafon prefcribe unto us. Of fuch force is Natural affection, that it eafily perfwades us to nourifli our Children, faith Juftinian. Nature is an Indulgent Miftrefs to all living creatures, equally inftrutting them how to conferve not only themfelves, but thofe that are born of them ; that fo by this fucceffive Charity foe may afpire to- make her felf immortal. Quintilian brings in the Son claiming a Portion of his Fathers Eftate by the Law of Nations. And Saluft con- Partem jure demns that Teftament as impious and unnatural, by which the Son is excluded from emtimpitt. his part of the Inheritance. And becaufe this is a debt that we owe to Nature, there- fore is the Mother bound to nourifli the Child that hath no certain Father. And though The Roman the Roman Laws made no provifion for Children ex damnato legibm Concubitu , that were Laws made no illegitimate; and that by Solons Laws it was provided, That no mari fliould leave any lizards thing to his Natural Iflue[: yet do the Canons of our Religion correct thefeverity of thele Laws, by teaching us, That our Children, however begotten by us, fhould be a part of our care-, and -that in cafe it be needful, we ought to leave them enough- to preferve that ^r 0ni ne " life which we gave them: but beyond neceflaries, is no man bound by the LawofNa- m an bound to ture to provide for them. Neither are we bound to nourifli our Sons only, but thofe al- provide for fo that proceed from them, yea, even to the third generation, according to Juftinian, them, and that for humanity fake: Neither fhould our Charity reft here, but it fliould extend it felf even unto thofe who iflueout of our Loins, and are born unto us by ftrange women, if they cannot otherwife be maintained. Children ought alfo to nourifli their Parents •* not only in obedience to many whol- V. fomeLaws, but in common gratitude, like the Storks, who when their Parents are fpent J" S ""^ R with age, feed them, and being faint, receive them on their backs, and carry them of t j, e d cc r e e a . from place to place : And therefore in foftering thofe , who when we were Children fed are to be foftered us, we are Proverbially faid,To imitate the Storkf .Solon is highly commended for preferred be- fettingabrand of infamy upon thofe that did it not: Yet is not this fo ordinary as that foretheirPa - which we have faid of Children. Becaufe Children when they are born, bring nothing vvhVi ' ai into the world with them whereby to live-, and have probably a longer time to live \ M/lnrHKa.^- here than their Parents have. And as honour and obedience is properly due to Pa- ^„. rents, and not to Children : So is Suftentation due rather to Children than to Parents : Reverence to And thus is Lucian to be underftood , when he tells us , That it is more agreeable to Parents, and the dictates of Nature , for Parents to love their Children , than for Children their Pa- ?u'1j a0Ce t0 rents. And that alfo of Ariftotle, That which begets, is always better affected to the thing j^. 8 begotten. than that which is begotten, can be to the begetter : For that is properly faid to be oar own, which derives its being from ut. Whence it comes, That without the favour of the Civil Law, the firft Succefflon to the goods of the Parents is tranfmitted to their Children -, it being prefumed, That next after themfelves, they would that thofe born of them ( as being part of their own body ) fliould be plentifully fupplied with all things, not only- neceilary for life, but for a more honeft and comfortable livelihood. Infomuch, that were all humane Laws afleep, yet, as Paulus the Lawyer obferves, would na- tural Reafon, nhich is as it wereafilent Law, adjudge the Fathers Inheritance unto his Chil- dren, and inveft them in it, as their due, by an undoubted Succeffwn. But yet, as Papinianm. notes , cannot Parents claim the eftates of their Children, by the fame Right as Children do the Inheritance of their Parents : For Parents are admitted to their Childrens goods meerly out of Commiferation ; but Children to the eftate of their Purents by the common vote, that it, both R 2 of Of Succefjion to the Eftate of an Intefiate. BOOK II. 2C0V. 12. 14. of hFatare andsf then Parents. P'mlo in his third Book of the life of Mofes, gives this Reafon why Mofes made no provition for Parents out of their Cnildrens Eftate, Becav.fe Ceeiua that the Law of Nature did provide that Children ft) old d fucceed their rare fits in , tir Effates.y and not Parents their Children, therefore did Moles pafs over in file nee , what was contrary to the deftres of all Parents, and might prove unlucky. Hence we may obferve, T hat the Inheritance of Parents dsfegnds open their Children, by a two- told Right ; partly, as a nicer deb.t of Nature:, and partly, out of a Natural Conje- cture, That it is the Will of their Parents, that their own Children ihould be beft pro- ii.$.e.a. vidfd for. Sanguini honor em relinqmt, faith Val.Max. oj ' Quintm Hortenfuu \\ His henottr he bequeathed to bis Bltod. For though he detefted the wicked life of his Son , yet dy- ing, Ne ordincm iiatw £ corfunderct, non ncpotes, fed f 'Hum taredem fcripfit ; To preferve tie order of Nature, he nude his Son, and not his Nephews, heir to his Bflate : 1 hinking it encugn, that he had declared hisdiflike of his Sons ill manners whileft he lued. And lb. therefore dying, he left him the honour due to his Blood. The like he lecerds of Vitlv'uu, who caullng his own Son to be apprehended for confpiring his death, did not only forbear toprolecure him whilelt he lived, but dying, Dominium omnium effe volatt , cjusmgemtsrath&redcminftituensy non qucm f Herat, exptrux ', /Made him heir of all he had, regarding his Birth and Blood, and net his Crimes. And to this purpofe is that of St. Paul, Children do not lay 'up for their Parents, but Parents for their Children. V 1. Now bfcaule it is thus natural and ordinary for Parents to take care of their Chil- Of Reprefen- drens Education, therefore whilelt they live, there lyes no obligation upon the Grand tative Succef- Parents to give them maintenance: Yet in cafe the Father cr the Mother dye, or be fion - otherwife dilabled, then it is a duty, which in all equity the Parents of the decealed Son or Daughter are obliged unto, to fee their Nephews or Neeces virtucufly brought up. .And by the fame reafon, is the fame duty incumbent on the Parents of more remote degrees if thefe fail. And from hence arifeth the Right of the Nephew to inherit the Eftate, inftead of a deceaied Son, as Vlpian fpeaks. Which gave occalion to that He- brew faying, Filiw etiam in Sepit'chro fuccedtt; That the Son fucceeds, though in his Grave. Becaufe Filii fliorum funt ejuafijilii; The Sons of that dead Son, are reputed Sons. And as Modeftinus fpeaks, Shall fill np the vacant flace of their dead Father. Jitflinian thought nothing more unreafonable than this, That the Nephew fliould fucceed inftead of the deceafed Father, in the Eftate of his Grand father in cafe he dyed Inttfi.tte. And this kind of Vice- fucccflion, our Modern Civilians do affectedly call Reprefentatire •, when the Sons claim an Eftate, by reprefentingtheperfon of their Father b:ing dead. And that that manner of Right was approved of amongft the Hebrews, the divifion of the Land of Canaan amongft the Children of Jfrael, doth fufficiently demonftrate. As our Sons and Daugh- ters are neareft unto us in blood, fo arethofewho are born of either of them, as Demo- fihenes ohferves in his Oration againft Macartattu. V IT- What we have hitherto faid concerning the Right of Succeffon, atifing from our Con- Abdication or jeftures at the Will of the Intrftate, is of force, if there appear no certain fign, that he wa, otherwife minded. Such in the firft place was among t+ie Grecians an Abdication, or a manifeft renouncing, or calling off of the pcrfon claiming: And among the Ro~ mans an open disinheriting of him ; yet fo, that if that pcrfon did not by his crime deferve to be put to death, he was to be allowed fufficient to luftain Nature, for the Rtafor.s aforeiaid. V Til. And here we may add another exception to this general Rule, that is, If it do not The Right of fufficiently appear that fuch a Son or Daughter was begotten by him : But yet we know E that of fuch matters of faft there can be no certain knowledge : But of fuch a^fts as are publickly done before men, there may be fome certainty upon the Teftimony of fuch as beheld them. In which fenfe the Mother may be certain that the Child is hers , by thofe who were prefent at its Birth and Education ; but thus certain cannot a Father be. Which Homer firft, and after him Menander thus intimates : Know direUly no man can From what fiock, himfelf ftrfb fprang. And fo in another place he thus diftinguifheth between the Parents, - Fathers do love their Children, Mothers dote : She knows them hers ; but this he takes by rote. Therefore fome way was thought fit to be found, whereby it might probably appear, who the Father of every Child was : And this was Marriage taken in its Natural terms, that is, for fuch a cohabitation, as placeth the woman under the cuftody or fafeguard of the man. But whether by this, or fome other way, the true Father of the Child be known, cxliered^i- on. C h A p. V i i. Of Bajiards. i 2 J known, or that any man doth own the Child as his , by the Law of Nature, that Child,as well as that born in Marriage fliall inherit. Neither is this ftrange, feeing that we fee meer ftrangers (being adopted for Sons) to fucceed in the Inheritance, only by conjecture at the owners will. And the Nephew inftead of the Father \ as old Jacob adopted Ephraim and Manages into the number of his Sons, in the ftead of their Father Jifefh, But our Natural lilue is differenced from our Legitimate by Law only. So Euripides, Baftards, no lefs than thofe in WedlockJ)orn, Are ours, although by Laws they , re left for lot n. And yet may thofe alfo be adopted Sons, if the Laws forbid not, as it was anciently permitted among the Romans, by the Laws of Anaftafius; But afterwards in favour to lawful Marriage , there was a more difficult way found , to make Baftards equal to fuch as were Legitimate , namely , by the free offer of the Court ( when tney fay caufe ) or by the fubfequent Marriage of the Mother of the Ch Id- Thus did oid Jacob adopt his Natural Son s, making them equal to his Legitimate , and gi- ving them equal (hares in his Inheritance. But the contrary may fometimes hap- pen, not only by the prohibition of the Law, but even by agreement, when it is agreed on by both parties before, That they that are to be born by that Wedlock fhall receive only Aliment, but no part of the Ancient Inheritance. And fuch a Marri- age the Hebrews call Concubinary, although made with a Free-woman : Such was that of Abraham ftith Keturah, called therefore his Concubine, Gen. 25. 6. whofe Children, to- gether with Jjhmael the Son of Agar his Bond-maid, are faid to have received gifts, that is, Legacies-, but no part of the Ancient Inheritance. So it was anciently among the Mexicans, who gave all to the eldeft fon, but nothing to the reft but fuftenance only: And not much better are fecond Marriages in Brabant, where the Children by the fe- cond Venter , have no Propriety in the Eftate which the Father held at the death of his former Wife. The like Law we find among the ancient Burgundians. If a man dye Childlefs, and withal Inteftatc, on whom the SuccelTion fhould de- IX. Icend, is not eafily to be determined. There being no one thing wherein the Laws do q-i^J 3 ? ^ more differ. All which differences may notwithstanding be reduced under two Heads, inteftate S to whereof the one hath refpeft to the neareft of kin, the other to the feveral Spring- whom (hall heads from whence it defcended : That which came by the Father, to his Relations ; and the Eftate de-- that which came by the Mother, to hers. But here we muft diftinguifh between the ancient jf 1 " 1 ' Inheritance, and that lately purchafed : That of Plato muft be underftood of the former, Eftatetohis Ego Legum conditor, &c I being a Law giver, faith he, do ordain, That neither your Per' Relation*, the fins nor Patrimonial Eflates are in your own power fully, but your ftock^and lineage have a Right Mothers »> •wt^c, the Ancient Inheritance preferved intire for that Tribe or Eftate'tobe' Kindred by which it came: Which I would not have fo to be underftood, as though continued in it were not naturally lawful todifpofe of any goods that defcend unto us, from either the fame Parents or Anceftors otherwife. (For fometimes to relieve the wants of a Friend, who Trlbe - hath welldeferved of us, is not only commendable, but necelfary. ) But ("chat in a cafe ambiguous) it may appear what we ought to believe the will of the Inteftate was. For we take it as granted, That he that dies hath at his death a full Right to difpofe of his Eftate. But fince it is impoffible for him to retain this Right being dead, and that it may be prefu- nied, That he would not altogether Iofe that Right, whereby lie might gratifie his Friends : It concerns us to enquire in what order this benefit fhould naturally defcend. Wherein that of Ari(totle is mod rational, Potius eft gratiamreferri ei qui benefecit qttam amico con- ferre bentfeittm ; That it is better to return thanks to our Benefactor, than to oblige new Friends. For z% Cicero faith truly, There is no duty foneceffary as that of Grat'v.ude: For fince Libera- ~ lity hath but two Branches, whereof one is to do good, the other to repay good ; the former we ftors ate firfl: may do if we willy but the Utter we muft do if we would be honeft, andean do it without inj u- tobegratifi- ringany. So St. Ambrofe, It becomes every man to have a greater refttii unto him from whom c ^ and then We have received a Court e(is, than unto others. And prefently after, What can be more againft °" r . Fr j en Z&t* and 7«AgyptS Throne Britain. Difference of Sexes there is none. The like doth Tacitus record of the Britt ijh Empire. In Afia after Semiramjs, many Wo- mque mm men were permitted to Reign, faith Arriams ; as Nitocris in Babylon, Arttmiffa in Hal's- s **? m « /»- i tarnaffus, and TomyrU amongft the Scythians : yea, and fuch Kingdoms may be divided, as ^"/J*^"" in Afta, all the Brothers Reign together, though one only hath a principal Right to the "" ' a& Crown •, which Cuftome the Emprefs Irene would without any precedent have introdu- ced into the Conftantinopolitan Empire in the Reign ofAndronicus PaUologus , as Gregoras notes, Thaty faith he, which is mofi ftrange and to be admired, was, Thatftie was not willing^ Lib. 7. that any one (Iwuld obtain the whole, according to the Ancient Cuftome of that Empire, but ac- cording to the Examples of the Weft ern Princes, the Cities and Regions fliould be divided among ft her Sonsy that fo each of them might hold his Kingdom as his Patrimony, juft as the eftates of private men are divided among their children ', fo that each part of the Empire ft.ould defcend perpetually to each of her Sons, and to their Heirs after them. For being her felf of aWeftern Extraction, flic indeavoured to introduce their Cuftom without example. Neither are adopted Sons lefs capable of Succeffion,by guefling as the Will of the Inteftate,than true Sons : Thus did Hyllus the Son of Hercules fuceeed to tAZpalius King of the Locrians by Adoption-, as strab. l. 9, alfo did MoloQus the Baltard in the Kingdom of Epirns, by the Judgement of his Father Pyrrhus, having no lawful IfTue. The Tartars make no difference between Baftards and ?"*,£'• »• them that are Legitimate. So Herodotus of the Per fans, Mos eft Mis ut Nothiu regnet dum legitimus aliquis reperitur ", Who admit of Baftards, till one that is legitimate may be found. And we read in Juftine of a Treaty between King Athe.is and Philip concerning the Ado- pting oiPhilip to fuceeed him in the Kingdom of Scythia. Jugurtha, though a Baftard, yet Wrf- W« .Succeeded in the Kingdom ofNumidia by Adoption. The like we read of thofe King- J u £' irth - doms which the Goths and Lombards conquered, that the fucceffion often pafTed by Ado- ption. Nay, the fucceffion to the Kingdom (hall pafs to the neareft of kin to him that f"^" 2 *' ■ lalt poflelt it, though he were nothing of kin to the firlt King. If any fuch fucceffion ungob. be in force in thofe places : Thus did Mithridates in Juft-ine plead, That Paphlagonia be- came his Fathers Inheritance, by the death of all its domeltick Kings. But in cafs exprefs caution be given, that the Kingdom Ihall not be divided, and yet it XIII. be not exprelt who fhall fuceeed, then the Eldeft, whether Son or Daughter, lhall enjoy in Kingdoms the Kingdom. So faith Nicetas Coniates, Nature indeed obferving her own order , gives the that are la- greateft honour to the firft-born; But God hath a, Prerogative above Nature , and acts not al- ( Vj'jl b !- e ' thc wayes by her order. And fpeaking of Jfaacius, he faith, That by his birth-right, the fuccef f e ^ UC " (ion to the Kingdom wot his. The like is faid of Hircanus in Jofephus. In the Talmud, under the Title of Kings,we read, That he that hath the beft title to an eft ate of inheritance, hath alfo the beft title to the poffejfwn of a Kingdom ; and therefore the eldeft Son is alwayes preferred before the younger. Herodotus makes it the cuftome of all Nations for the eldeft Son to fuceeed in his Fathers Throne. And in another place, he terms it, the Law of Kingdoms. Livy makes mention of two Brethren, Allobrogi, contending for a Kingdom, whereof the younger had the worft Title, but the greatelt Power. Of all Darius his Sons, Artabaz^nes being the firft-born claimed the Kingdom as his birth-right : Quod Jus & ordo nafcendi & Natura ipfa gentibus dedit ; Which Right, faith Juftine, both the order of birth, and Nature L &- *• it felf hath given to Nations : which in another place he calls, the Law of Nations. As Lib. to. Livy alfo faith, It is a priviledge due by the order both of Age and Nature-, yet mufl: this be underltood with this reltriftion, unlefs the Father by his Teltament do otberwife difpofe XIV. A Kingdom by the peo- ples confeuc hereditary, if in doubt, is prefumed to be indivifible. Lib. 21. A Kingdom united is ftronger, than when divi- ded. XV. The fucceffi- onnottolaft beyond the line of the firft King. *Lib.8. XVI. Natural Iflue not concern- ed ia it. iliad. n. Lib. 2. 28 Of Succejjion to him that dyes Childlefs mid Inteftate. BOOK II. difpofe of the fuccefiion, as Ptolomy in Juftin, did his Kingdom to his youngeft Son. But yet he that mall thus fucceed, is bound to gratifie his Brethren for their fhares with all refpeft and honour, if ( and as far forth as ) he mall be able to do it. But thole Kingdoms that by the Peoples free confent are made hereditary, may by giieC- fing at the will of the people be transferred. Now, becaufe it may eafily be prefumed, that the people will give their confent to that which is moft expedient-, therefore in the firft place it will follow, That unlefs fome Law or Cuftome cio otherwife determine, ( as in many it hath and may do ) the Kingdom fhould ftand entire and undivided ; be- caufe whileft fo, it will be the better able, both to defend it felf, and to conferve the people in peace and unity. Of this opinion was Juftin, Firmius futurum effe regnum, ft pries mum remanftffet, quam ft portionibus inter filios divider etur, arbitrabantur ; They judged that the Empire would be more firm, being intirely pojfeft by one, than it could poffibly be^ if di- vided amongji many Sons. Again, It being granted, that the peoples confent is eafily gained to what (hall be moft expedient, it will in the next place follow. That the fuccefiion fhould defcend from the firft King in a right line : Becaufe that Family was then elfteed, as being thought the moft Noble ; which Family being extinft, the Kingdom doth return back to the people. Thus Curtius advifeth*, 'That the Soveraign Power be fironglyfixt to one Royal Family , which ought to claim by an hereditary Right. For the people being fo accuftomed, will not only reverence his perfon, but will have the very name of their King in great efteem : And therefore no man ought to ujitrp that dignity, but he that w.ts born unto it. Thirdly, It will thence likewife follow, That none fhould be admitted to fucceed in the Royal Throne, but he that is born Legitimate* Not the Natural Sons, becaufe they are fubjecT: to be reproacht, to whole Mother the Father did never vouchfafe the honour of marriage. And therefore of fuch, there can be no certainty, who was the Father. But in the fuccefiion to Crowns, the people ought to have the greateft affurance that in fuch a cafe can be given to avoid Controverfies. For which caufe it was, that the Ma- cedonians preferred Demetrius the younger Son to the Throne, rather than Perfem the elder, becaufe he was born in lawful Wedlock. Not Sons by Adoption, becaufe the people are apt to conceive greater hopes, and to have their Kings in greater efteem and veneration, when they know them to be defcended from a Royal Stock. Eft in Juvencis, eft in equis patrum VirtHi. In Horfe and Oxe we may dejery The Syre's Generofity. Fourthly, That of thofe that have equal Title to the Inheritance, either as being in the fame degree, or as fucceeding to their Parents who were in the fame degree, the Male Iffue be preferred before the Female •, becaufe Men are fitter for War, and to ad- minifter other Regal duties, than Women can be. Fifthly, That of Sons, or of Daughters, if there be no Sons, the elder be preferred before the younger ; becaufe it may eafily be believed, that as h'e is of more years, fohe either then is, or may fooner arrive to be of founder Judgement than the younger. So Cyrus in Xenophon, Imperium relinquo majori Natu ; I bequeath my Kingdom to my Eldeft Son, as being of moft experience, and confequently beft knowing how to govern. And becaufe our green years will fooner ripen, than our Sex change •, therefore the preroga- tive of our Sex is much to be preferred, before the priviledge of our Age. Where- fore Herodotus where he tells us, that Perfts the Son of Andromede the Sifter of Cepheiu did fucceed Cephe win his Kingdom, gives this as the reafon, Becaufe Cepheus had no Male Children. And Diodorus affigns the fame reafon, why Teuthras left the Kingdom of Mifia unto his Daughter Argiope, Becaufe as to Male Iffue he was childlefs. And Juftm tells us, That'.the Empire of the Medes did of right belong to the Daughter of Aftyages, becaufe Aftyages had no Son. So doth Cyaxares in Xenophon, declare his Daughter Heirefs to the Median Empire : For, faith he, I have no Son that is legitimate. So Virgil concern- ing King Latinos, • He had no Son, no Iffue Male was left, In prime of youth, Both] being of Life bereft; And by one Daughter this va(t State poffefi. Homer difcourfing of the Kingdom of Crete, doth very wifely affign the reafon why in fuccefiions the Elder is commonly preferred before the younger, namely, firft for their priority of Age ; and fecondly, for their greater knowledge and experience. Zotimut alfo mentions XVII. Males prefer- red before Females in the fame de- gree. XVIII. The elder be- fore the younger. Lib. 7. JJb. 4. 1 Chap, v i i. OfSuccefJion to kingdoms where the IQng dies Inteftate. i z orthc is Authoritative, neither of them have any Right to judge. For Jurifdiftion there can- havea^fhi not be, but in afuperiour, who fhould have refpeft not barely to the perfon, but to tojudgetff the matter alfo, which is to be poifed with its due circumftances. But the cafe of Sue- the Succdfi- ceffion is not properly under the jurifdiftion of the prefent King : becaufe he cannot of «"• himfelf by any Law bind his SuccefTor. For the Succeflion to the Empire lies not under the jurifdiftion of the Empire, but remains in the ftate of Nature, wherein there was no jurifdiftion at all. But yet notwithftanding, if the Right of Succeflion be controverted, the pretenders unto it will do very pioufly and juftly, if theycan agree between themfelves upon fome indifferent perfons, to whofe arbitrement they can be contented to refer themfelves •, whereof we fhall difcourfe hereafter. But the people have transferred all their Jurifdiftion from themfelves into the King and the Royal Family ; during which, they cannot challenge to themfelves any reliques of it. This I mean of a true Kingdom, and not of every Principality. But yet, if in the difcufling of this Right any queftion do arife. concerning the primary will and intention of the people at the firft inftitution of the Kingdom, it were not amifs to take the advice of the people in prefent, that is, of all the three States •, I mean, of the Nobles, Clergy, and Com- mons in Parliament aflembled, asisufual in England and Scotland, as Camden teftifies in his Hiftory of Queen Elizabeth : For the people in prefent may be judged to be the fame 1571. they anciently were. Or by Delegates purpofely chofen, as in the Kingdom of Arra- 'S? 2, gon, unlefs it do fufficiently appear, That the people then were clearly of another will , and that thereupon the Right of Empire was obtained : Thus did King Euphaes fuffer the Pint, dtfra. Meffenians diligently to enquire which of the Royal ftock of the tAtpytida had tnmamtre. moft Right to the Kingdom. But the conteft between Xerxes and Artabaz.anes was de- */$}„' {j£g, termined by their Uncle Artaphemes, to whom it was amicably referr'd, as to a Dome- ftick Judge. But let us proceed to other cafes,It hath been often controverted which of the tw o Sons XXVIII. hath the beft Right to the Succeflion : He that was born before the Father gained the The Son born Kingdom, or he that was born after : Whereunto the moft Rational Anfwer is, That he before his Fa- that was firft born, fhall firft fucceed, if the Kingdom be indivifible, which holds true J^^fo* in every kind of Succeflion. ( Yet did Henry the Firft, youngeft Brother to Rufus, af- ^d before fume the Crown of England, whileft his elder Brother Robert was in the Holy Land, up- him thatwa* on this pretence, That he was born to his Father after he was Crowned King of England , p°rtnate. whereas his Brother Robert was born whileft his Father was Duke of Normandy only, yet was Henry juftly branded as an llfurper of his Brothers Right, by Mat. Parifienfts.} But in cafe the Kingdom be divifible, without doubt the latter fhall have his fhare, as well in this as in other goods, concerning which it matters not when they were got. S 2 Now 1 Jl Of Succejfton to IQngdoms. BOOK II. Mar i AM /■ 2 1 lib. 23. XXIX. Unlets other- wife provi- ded by fome law. S 1 XXX. Whether the Nephew by the elder Son be to be pre- ferred before the younger Son. Diod. /. 6. iProeap. \ib. j. f-'uHd. Vid. [up. S-24- Now if he that of a divifible Eftate may have his (hare*, and in that which is indivifible, is preferred by the priviledge of his birth: Surely even the Inheritance muft follow that Son which was bom before his Fathers firft Inveftiture. But even in a Lineal Succeffion, a Kingdom is no fooner got, but the Children which are antenate, do immediately con- ceive an hopes of Succellion. For admit that there are none born after, furely no man will fay, That thofe before born are to be excluded. But in this kind of Succeffion an hope once conceived begets a Right : Neither doth it by any poftfact determine, unlefs it be in a Cognatical Succeffion, where.it may be for a while fufpended,by reafon of the priviledge of Sex. Thus was the cafe decided in Perfia y between Cyrus and Artaxerxes ; in JW*m, be- tween A/itipater, the Son of Herod the Great, and his Brethren , In Hungary, when Gaffa began his reign ; and in Germany (though not without Blood ) between Otto. the firft, and Henry ; and in Turkey, between Bajaz.ec the antenate, and Gemes the poftnate, to the Empire. And though haply it may be true, that the choice of the Kings of Per- fia did much depend upon the fuffrages of the people •, yet were thofe fuffrages always li- mited to the Royal Family: For thus much doth Mariana teftifie of the Arfacida, who being Parthians reigned in Perfia. And the like doth Zonarrn in Jufiint of thofe Per [tans that fucceeded thofe Parthians. But that it was otherwife in Sparta, we attribute to the Laws proper to them only, which gave the Sons that were poftnate the Preheminence, for their more Heroick Edu- cation. The like may alfo happen by fome peculiar Law made upon the firft Inveftiture, If a Soveraign Lord (hall give unto his Vaffal, and to thofe that fhall be born of him, an Empire, to be held of him in Fee : upon the ftrength of which Argument, Lewis ( in the conteit that arofe between him and his Brother Galeatitts for the Dutchy of Mllain) did principally rely. For in Perfia, That Xerxes the Poftnate Son was preferred before Art. ibazjr.es the Antenate, was more by the power of Atofla his Mother, than by true right, as Herodotus obferves. For in the fame Kingdom when the fame Controver fie afterwards arofe between Artaxerxes, Mnemonznd Cyrus, the Sons of Darius and Pari- fardis, Artaxerxes the firft-born, though begotten by his Father in his private condi- tion, was notwithftanding faluted King.- Unlefs we take that as granted, which Am- miarm hath delivered unto us, That the Succeffion to that Monarchy did much depend upon the fuffrages of the people, confined only within the Royal ftock. It is no lefs difputed both by Wars and fingle Combats, whether the elder brothers Son, his Father being dead, fhould fucceed before the fecond Brother. But this in a lineal defcent will hardly admit of a difpute. For herein are the dead reckoned as living, in that they are able to transfer a Right to their Children •, therefore the Son of the deceafed, (hall doubtlefs in fuch a Succeffion be preferred, without any exception made to his age^ yea,and where the Succeffion is cognatical, the Daughter of the eldeft Brother ffiall be prefer- red before the Uncle : becaufe in fuch Succeffions neither Sex nor Age fhould make us to decline the right line. But in fuch Kingdoms as are hereditary, yet divifible, there ffiall each have a (hare, unlefs it be where the Right of Reprefentation is not as yet received : as of old among many of the German Princes : For it is but of late that Nephews have been admitted before their Uncles. But where it once comes into debate, furely the Ne- phews cafe is to be preferr'd, as being moft pleafing to humane Nature. And where by the Civil Laws of any Nation, reprefentative Succeffion is once openly admitted, there the Son of the deceafed Brother (hall fucceed in the room of his Father ; though in that Law the word Ptoximus, that is, Next of kin, be only mentioned. The Reafons that are extracted out of the Roman Laws for this, are but weak •, as is evident to fuch as infpect them. But this is the bed: reafon, That in matters that are to be favourably underftood, the fenfe of words muft be extended to all propriety, not only vulgar, but artificial. So that under the name of Sons, may be comprehended thofe of Adoption \ and under the word Bead, may in included thofe that are dead in Law, becaufe the Laws do dually fpeak thus. And thus he may defervedly be faid to be Proximus, whom the Laws prefent in the next degree. But yet in Kingdoms that are hereditary, and withal individual, and where this Reprefentative Succeffion is not excluded: Neither is the Nephew always preferred to the Succeffion, nor always the fecond Son, but as amongft equals •, becaufe by an effect of Right, as to degrees that are adequate, his ofe is beft that is eldeft. For as we have faid before, in hereditary Kingdoms, Succef- fion is guided by the priviledge of age. Among the Corinthians, the eldeft Son of the deceafed King did fucceed in his Fathers Throne. So among the Vandals it was provi- ded, That the next in Blood to the firft King, and the eldeft fhould be declared Heir. So that the fecond Son, becaufe of his maturity of years, was preferred, before the Son of the eldeft Brother. So ia Sicily, Robert , being the Second Son, was advanced to the Throne before Martell, his elder Brothers Son, not properly for the reafon fanfied by Bdrtolus, becaufe Sicily was held in Fee (as it were) by a Superiour Lord ; but becaufe that Kingdom was hereditary. There is in Gtrntanm an ancient example, of fuch a Succeffion Chap, v i i. Of Suae JJ ion to Intefkates. i j 3 Succeffion in the Kingdom of the Francki ", but that proceeded rather from the peoples choice, which at that time did not fully ceafe : But fince that Kingdom ceafed to be Elective, and that the line of Agnatical Succellion was there eftablifhed, the matter ad- mits of nod ilpute. As anciently among the Spartans, where as foon as the Kingdom came to the Heraclidt, the fame Agnatical Succeffion was introduced. And therefore Arem, the Son of the elder Brother Cleonymm , was preferred to the Crown before his Uncle. But even in a Lineal Cognatical Succefllon, the Nephew hath been preferred : As in England, John , the Nephew of King Edward by his eldeft Son, was prefer- red before Htmon and Thomas: Which alfo is fetled by Law in the Kingdom of Cafttle. By the fame diftinction we may refolve another doubt, between the furviving Bro- XXXI. . therto the laft King, and the Son of the elder Brother : But that we mull know, that in wh «her the many places, where among children,the living may fucceed in the room of the dead in the y ^f" Br b °" right line , they are not permitted fo to do in the tranfverfe. But where the Right is not t0 be prefer- 6 clear and undoubted, it is molt rational to incline to that part which favours the red before Child in the Right of his Father-, becaufe we are thereunto guided by natural equity, the Kings el- namely, in that Eftate which descended from his Anceftors. Neither is it any lmpe- J™ Brothers dimenr, that Jufiinian calls the Right of Brothers Children, Depredatory ■ For this he doth in relation to the ancient Reman Laws, but not to natural equity. Let us now proceed to examine the other cafes propofed by Emanuel Cofta. The Son of the deceafed Brother, or even his Daughter, he faith is to be preferred be- X X X 1 1, fore the Kings Uncle : This is true, not in a Lineal Succefllon only, but even in an he- Whether the reditary, in fuch Kingdoms where Reprefentative Succeffion takes place ; but not in | on ? f rI f fuch Kingdoms which in exprefs terms do bind us up to the degrees that are Natu- be preferred ral. For there they are to be preferred , which have the precedency of Sex and before the Age. Kings Uncle. He further adds * That the Nephew from the Son is to be preferr'd before the XXXIII. Daughter : It is true, By reafon of his Sex ; yet with this exception , Unlefs it be The Nephew in fuch a Nation, which even amongft Children refpe&s only the Degree. b y the Son He farther adds, That the younger Nephew from the Son is to be preferr'd before P referr «*be- the elder from the Daughter ^ which is likewife true, where a Lineal Cognatical Sue- Daughter, ccflion is in ufe, but not in an hereditary, without the warrant of fome Special Law. XXXIV. Neither do we approve of the Reafon alledged, namely, becaufe the Father of the The younger one, was to be preferred before the Mother of the other : For that was by reafon of his Nephew from dignity, which was meerly perfonal, and defcended no farther. And yet on the con- L hc s ° n > **}- trary, we read that Ferdinando, the Son of Bertng aria, the younger Sifter of King Henry from the deceafed, was preferred to the Kingdom of Cafitle before Blanch, the elder Sifter of the Daughter, fame King: But this, as Mariana notes, was done in hatred tothehoufe of France, into which Blanch married. That which he adds, as feeming to him molt probable, namely, That the Neece XXV. from the elder Son excludes the younger Son ; cannot hold in hereditary King- The Neece doms, although Reprefentative Succeffion be there in force. For that gives only a f rorn the el- capacity to fucceed : But of thefe that are capable, regard is to be had to the priviledge ferred before of the Sex. the younger And therefore in the Kingdom of Arragon, the Sifters Son was preferr'd before the Son. Brothers Daughter : And as Mariana obferves, It is credible, that in that Kingdom XXXVI. in times long lince paft, The Kings Brother, and not his Daughter, had the Right of J he sirters Succeffion: But afterwards they were fo well pleafed with a Lineal Succeffion, that they before^r* preferred the Sifters Son before thofe that, in a more remote degree, defcended from Brothers the Brother. And in another place, fpeaking of Alphonfm, he faith, That unto the Daughter. Inheritance of the Kingdom of Arragon, after his Son Ferdinando, he appointed his Nephews by his Sons •, and for want of fuch, then the Nephews by his own Daughter were to be preferred before the Daughters ofthefaid Ferdinando: Whereunto he adds, Sic fitpe ad ArbitriumRegumjuraregnandi commntantnr; They are Titles to Kingdoms oft- times fann'd about by the breath of Kings. After the fame manner, In Kingdoms that are hereditary, theQaughter of the eldeft XXXVI L Son (hall give place to the Kings younger Brother. whether the Daughter of the elder Bro- ther be to be preferred be-, fore the youn* 34 Of Dominion acquired by the Law of Nations. BOOK II. CHAP. VIII. Of Dominion vulgarly faid to be acquired by the Law of Nations. I. Many things are attributed to the Law of Nations, which to fpeak^ properly, are not thereby due. I I. Fijh and Deer in Ponds and Parks, are by the Law of Nature held in Propriety, contrary to what the Roman Laws deliver unto m. III. That Wild Beafts graying out of Inclo- fures, ceafe not to be the frft owners, if they may be known. IV. Whether the poffeffion of them may be gained by Inftruments, as by Nets ', and how. V. That fuch Wild Beafts flwuld be the Kings, is not contrary to the Law of Nations. VI. How the foffejfion of fuch things as have no owner may be gained. V 1 1. Mony found , whofe it is naturally ; and of the diver fuy of Laws about this. VIII. That thofe things which by the Ro- man Laws are delivered unto us concerning I/lands and Jncrements,are neither Natural, nor from the Law of Nations. IX. That Naturally IJlands in Rivers, and the Channel being dried up , are theirs , whofe the River or that part of the River Was, that is, the peoples. X. That Naturally the Propriety of a ground is not lo(l by an Inundation. X I. That Increments, if in doubt, are the peoples. XII. But theyfeem to be granted unto thofe whofe grounds have no other bounds but the River. I. That many things are faid to belong to , the Law of Nature that property do DOC. XIII. The fame may be pre fumed concerning whatfoever theftream leaves dry. XIV. What is to be accounted an Increment and what an Ijland, XV. When the Increments belong unto Vaf fals. XVI. The Arguments whereby the Romans would prove their Law to be as it were Na- tural, anfwered. XVII. That a way is naturally an Impedi- ment to Increments. XVIII. That it is not Natural, That the Child Jhould follow the condition of the Mo- ther only. XIX. That Naturally a thing may be made Common, as well by giving a Form to ano- ther mans matter, as by confufion. XX. Tea, though that matter be ill wrought. XXI. It is not Natural, that the leffer part (hould yield to the greater , by reafon of its prevalence ; where alfo are objerved other Errors of the Roman Lawyers. XXII. Naturally by planting, f owing, or building upon another s ground, there arifeth a community to both in the Fruits perceived. XXIII. He that fows anothers ground , by miftake , may require his Charges, but not the Fruits. XXIV. Tea, though he doth it knowingly. XXV. That Naturally Tradition is not ne- cejfary to transfer Dominion. XXVI. The ufe of what hath hitherto been faid. N Ow our Method leads us to treat of that Dominion, which is vulgarly faid to be acquired by the Law of Nations, which being diftinft from that gained by the Law of Nature, wc have therefore termed the voluntary Law of Nati- ons. Such is that Dominion which is got by the Right of War : But of this we fhall difcourfe better hereafter, where the effects of War fhall be explained. The Roman Lawyers, where they treat of the gaining of the Dominion of things, do reckon up many ways whereby it may be acquired, which they feem to juftifie by the Law of Nations. But to him that diligently examines them, there is hardly any, except that gained by War, that will appear to be gained by that Law of Nations whereof we now ipeak. But are either fuch as are to be referred to the Law of Nature, not that which is meerly fo, yet to that which follows clofe upon it, Dominion, being firft introduced, and fo antecedes all Civil Law^ or they are fuch as may be referred to the very Civil Law, not that of the fole people of Rome, but of many other Nations: Which I rather believe, becaufe this Civil Law or Cuftome came originally from the Greeks, whofe In- ftitutes, as Dionyfms Halicamaffenfis obferves, with fome others, all Italy and fome other adjoyning Nations followed. But this is not the Law of Nations, properly fo called. For it ferves not to conglutinate all Nations mutually among themfelves •, but rather to preferve peace and tranquillity between the Subjects of every Nation : And was there- fore alterable by any one people without confulting the reft, fo that it may alfo come to pafs, That in other places and in other ages, a far different common cuftom-, and fo, another Law of Nations, improperly fo called, may be introduced : Which we have found really done, as foon as the German Nation had invaded all Europe. For as of old the C h a p. V i i i. Of Deer in Parks and Woods. i ?^ the Grecian Laws, fo then, the Germans were almoft every where received, and do as yet flourilh. The firft. way of gaining Dominion by the Law of Nations, as the Romans call it, is by the primary feizure or occupancy of luch things as have no owner, which without doubt is natural in that fenfe which I have declared, that is, Dominion being firft introduced, and fo long as no Law did otherwife determine. For Dominion may alio be gained by the Civil Law. And hitherto in the firft place we may refer the taking of Wild Beafts, Birds and J £ Fifh. But how all thefe may be laid to belong to none, will afford matter of debate. As ¥ . l(h in Nerva the Son was of opinion, That Fifh, if in a Pond, werepofTeft, but not in a great i n p, r ^ s Deer Lake: And that Wild Beafts, ft in a Park or Warren, had an ownej; but ranging in Woods hedg'd about, not. As though Fifh inclofed in a greater Pond could not be as well owned as in a letter •, and Deer and Conies as well, pofleft in a well fenced Wood, as in a Park or Warren : Seeing that there is no more difference between them, than that in the one they are clofe Prifoners, and in the other Prifoners at large. Where- fore in this age of ours, the contrary opinion is moft prevalent, That both Deer in private Woods, and Fifh inclofed in Lakes may be, as pofleft, fo alio held in Pro- priety. In Wild Beafts, as foon as they recover their Natural Liberty, we Iofe our Property, I I U fay the Roman Lawyers. But in all other things the Dominion that is got by PofTeflion, Th«ouc-Iy- is not loft with the lofs of PofTeffion •, nay, it gives us alfo a. Right to recover our Pof- n^^th"' 16 feffion: And whether it be taken away from us by another, orltray away of it felf, as owners, could in the cafe of a Fugitive Servant, it matters not much. (The Title we may retain though they be the PofTeffion be loft. ) Wherefore it feems more agreeable to truth, That our Pro- known - perty is not. loft meerly becaufe the Beafts that were wild have efcaped our cuftody ^ buc becaufe it may probably be conjectured, That by reafon of the difficulty of recovering them, we have utterly deferted them •, efpecially when it cannot be known unto others that they were ours •, But this conjecture may eafily be wiped away by other conjectures, as namely, by affixing unto them yvaa-o-yA-n., fome things, whereby it may be known whofe they are, as is ufually done to Harts, Hawks, and the like. To acquire a full Domi- nion in things naturally wild, it is neceffary that we fhould have a Corporal PofTeffion : It is not enough to entitle our felves to a Deer, that we have wounded him ; but we muft catch him too, left the Proverb upbraid us with folly, In parting an Hare for another to tat : According to that of Ovid, Et lepra hie aliii exagitatsu trit. By the Law of the Lumbar ds. He that killed a Wild Beaft, being firft Wounded by ano- ther, might take away the Shoulder with the Ribs •, the reft belonged to him that wounded him, if he claimed it within twenty four hours, otherwife not. For as Ovid well obferved , It is one thing to know where a thing is, and another to find it. Met. 5. Now this PofTeffion may be gained, either by Hands only, or by Engines, as by IV. Traps, Nets, Snares, Ginns, &c. Provided, firft, That thofe Inftruments are un- PofTeflion der our own power : And fecondly, That the Beaft fo taken cannot efcape. And ,10W 8 0t bv thus is the queftion decided, concerning a Wild Boar that is fallen into a Snare or j° Nets 1 ™'' Toyl- ' Thefe things are thus to be underftood, where no Civil Law intervenes, where* V. fore our Modern Lawyers are much miftaken, who think thefe Rights to be fo Natu- That wild ral, that they cannot be changed : For they are not limply or abfolutely fo, but as P ea |J 5 ^ould things at that time were, before the Civil Law did otherwife determine of them. i 5 C no t aeafnft The people of Germany confulting about fome allowances to be given to their Kings the Law of and Princes, whereby to fupport their Regal Dignities, thought it prudence to begin Nature, with fuch things as no private man could claim as his own : Which prudential courfe the Egyptians alfo anciently took , where the Kings Attorney feized on all fuch things to his Mailers ufe. But the Law of it felf is fufficient totransfer a Propriety in any thing that is not already occupied. The Whales that are caft upon the Shoar, the Portugals give unto their King. After the fame manner as Wild BeaTts are pofTeft, are all other things that have no VI. , owner. For Nature doth indifferently adjudge all fuch things to the firft finder and pofief- Pofleffionof for of them. Thus was the lfland Acanthos* being defart, adjudged to the Inhabitants things not of Chalcis, who firft entred upon it \ and not unto the Andrians, who had firft thrown °* rnc