The first Chapter.
Of the differences of times and seasons by the Law of Nations.
AL Nations in putting difference betwixt times and seasons haue rather followed a populer and common obseruation, then the precise rules and principles of Astronomy, accompting it more conuenient and requisite, that sithence all contracts and matters of entercourse doe fall within the listes and precincts of time, that therefore the moments and measures of time should be publikely and familiarly knowne to populer conceit: In setting downe the definition of Time, they agree in the substance and matter it selfe, though in wordes and tearmes they be somewhat dissonant. Aristotle a great Philosopher amongst the Graecians defineth Time to be the measure of motion, according to prioritie and posterioritie, a [Page] short and subtill definition, but yet true & sound. Varro as great and famous amongst the Romanes defineth it to be interuallum mundi & motus, the space of the world and motion, a briefe definition and verie nimble, if it be nimbly vnderstood: for by the world he meaneth the course of time, by motion the course of thinges. Others, as the Egyptians haue defined it a dimension perceyued by the conuersion of the heauens. Plato, who of these matters had in his trauayle conference with Arabians, Egyptians, and Chaldeans, defineth it to be a moueable and chaungeable representation of Eternitie;Plat. in Tim. and truely and aptly doth he tearme it a chaungeable representation or image of Eternitie: for as Censorinus noteth, Time in regarde of Eternitie, is but a winters day. Censo. c. 4. de di. na. But though time be as much obseured in eternitie, as a small penny is amongest the riches of Craesus, yet as that was part of his riches, so time must needes be a part of Eternitie. Cicero defineth time more vulgarly, to be a part of Eternitie with a certaine difference, of a yearely, monethly, daily, and nightly distance, Cic. lib. de fin. 4. so that Plato his definition hath relation to the cause of time; Ciceroes to the persons that make vse of time. Philosophers haue left to posteritie many subtill, deepe, and learned discourses of time, but bidding their definitions and disputations farewell, I will examine and weye the distinct partes of time with a popular ballance, and according to common sence, taking that course to be most [Page 2] sutable to my profession. The partes of time according to the generall diuision of Nations are a yeare, a moneth, a day, an howre, and a moment: for the Olympiads and Lustra, as being proper to the Graecians and Romanes must be secluded from this Treatise, and Seculum as being a thing not vsuall in law, which now we handle must likewise be cassierd. Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law, and to the actions of men: As namely of a long time, a short time, a late time, an auncient time, a certaine time, an vncertaine time, a continuall time, a conuenient time, time past, time present, and time future. But first to speake of the yeare, Annus according to the Etymologie learnedly searched out by Varro, is nothing els but a circuit: for as the little circles are called annuli, ringes; so the great circles or compasses of time are called Anni, yearesVar. lib. 5. de lingu. lat.. The yeare is a time, wherein the Sunne perfitteth his course, and that is accomplished in the space of three hundred, three scoore, and fiue dayes, and sixe howres almost: And this hath our Law well obserued, as may appeare by these verses:
by which accompt (if you subtract the howers and halfe dayes) the quarter of the yeare will fall out as it is in our Law set downe, to be nintie and [Page] one dayes; and the halfe yeare, a hundred eightie and two dayes,Ibidem. which was almost fully signified by Ianus his image in Rome, in whose right hand was the number of three hundred, and in his left hand fiftie and fiue.Macrob. lib. 1. Stur. ca. 9. Others haue made the same difference betwixt the yeare and moneth which the Merchants of some Countries make betwixt the ounce and the pound, deliuering their conceit in this verse: ‘Vncia{que} in libra pars est, quae mensis in anno.’ And though it be a common receiued opinion, that the Romanes at the first, and a long time after the foundation of their Citie did accompt but tenne monethes for the yeare, so that Ouid quarrelleth with Romulus his Astronomy in this maner:Ouid. lib. 1. fastor. ‘Scilicet arma magis quàm sydera Romule noras.’ Yet if the course & circumduction of their yeare be well obserued, it will appeare to haue conteined the full space of twelue monethes, as may appeare by Plinie Plin. lib. 2. ca. 9., Macrobius Macrob. 1. Satur. ca. 12. et lib. 1. in som. Scip. c. 6., and Plutarch Plut. in Num.. And this was likewise the yeare of other Nations. The Romanes did begin their vulgar yeare at the beginning of Winter, as appeareth by Ouid: ‘Bruma noui prima est veterisquè nouissima solis.’ Which course seemeth to bee agreeable to the course of nature, because then the sunne beginneth to returne vnto vs, and therefore wee may rightly deriue the beginning of his circuite from thence: The yeare is diuided into the Spring, Summer, Haruest, & Winter. The Romaines did [Page 3] accompt the spring that space of time which was betwixt the Calends of March & the Calends of May,Liuy. lib. 34. but the most common & currant entrance of the spring in the reputation of all the nations of the world, was when the plants or herbage of the earth began to waxe greene: and therefore it is rightly tearmed ver a virendo, as sommer is called aeslas ab aestu, and then is said to begin when heate beginneth.Tacit. de mor. Germ. The name of Autumne nor the thing it selfe (as Tacitus reporteh) was not knowne to the Germaines in his time, and diuers countries haue made diuers limitations of the spring, and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the groūds of Seius all the spring time, the time shall be limited according to the dimension of the spring-tide in that countrey where the bargaine was made: and so it may be said of the other times, and seasons of the yeare, and if the occupation of a mans ground be granted to Titius, Seius, Caius, and Sempronius, so that Titius shall haue the occupation of the land in the spring time, Seius in sommer, Caius in winter, Sempronius in haruest, if the interest of any of the same come in question, the Iudge had need be well aduised of the certaintie, and the peculiar difference of these times according to the customarie obseruation of the countrey in which the grant was made, that he may suū cuique tribuere, and giue no erroneous iudgement. Some make a bipartite diuision of the yeare into winter and [Page] sommer without mentioning the spring, and haruest, defining the sommer to begin at the Equinoctiall of the spring, and to end at the Equinoctiall of haruest:Vip. in l. 1. § aestat. de ag. co. et aest. so that sommer and winter are diuided by sixe monethes: then I put case that land is demised to one to haue and to hold during the space of the whole sommer, whether may the lessee put in his beastes in the spring time, and it seemeth that the spring is to be excluded notwitstanding the diuision aforesaid, for the sommer being named aestus ab aestu the spring can haue no part in the sommer, for the spring is meane betwixt heat and colde, and therefore the said diuision seemeth to bee vnproper, for proprie non dicitur quod non dicitur secundùm quod sonat; Baldus in l. vlt. c. de haer. instit. and in Swetia & other nations lying vnder the Northerne Poale this diuision can take no place: but if a man deuise the dwelling of his house euerie sommer to Sempronius, there it may seeme that the spring shal not bee omitted, because our dwelling is diuided into the sommer & winter dwelling: but if a man deuise his ground with all his sommer instrumēts of husbandrie, it seemeth that the spring is in this case to be excluded because there be other instruments of husbandrie vsed in the sommer time thē such as be vsed in the spring, winter, or haruest: But the imperiall lawes doe extend sommer from the Calendes of April, to the Calendes of October: the residue of the yeare they allot to winter; and this diuision I will not denie to be grounded [Page 4] vpon good reason if we respect the yeare in generall not in particular; for in the spring time the Sunne mounting to the toppe of one of the lines of the Equinoctial circle he commeth by degrees nearer vnto vs and so maketh summer, but in haruest he transcēdeth the other line of the Aequator and so being farre remoued from vs causeth winter, and therefore not amisse by the cause of heat and cold, are the times of heate and cold distinguished.
The moneth had his name of the Moone which in the Greeke tongue is called Mene: and the reason of the name is because the moneth is measured by the circumuolution of the Moone, as Plato, Plat. in Cratil. Varro, Cicero, and others haue expounded it.Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur. deor. Some doe assigne to the moneth twentie seauen dayes, and eight howers: others twentie nine dayes and twelue howers: they doe measure by the motion of the Moone from poynt to poynt in the Circle, that is, when it is reuolued from one point to the same point: These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne, from which it newly digressed. The Athenians did obserue the later order of the moneth, frō whom though the Romanes did in circumstance agree, yet in substance they accorded; for their twelue monethes did not exceed that number of daies which doth cōsist of the twelue lunarie monethes; so that it is apparant [Page] that both these nations (as all other) follow the Moone in this businesse: and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes, and by consequence the yeare,Plut. in vit. Caesar. neither is this abhorrent from commen vse; for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next moneth 20. li. and the assumpsit is made the eyght day of March, whether may A. haue the space of the whole moneth of Aprill to pay the money in, or hee must needes paye it before the eight day of Aprill next ensuing, accompting the moneth from the eight daye of March: Surely by commō intendement he hath the whole moneth of Aprill to pay it in: for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender, not as curious wits may measure by the calendes or by like proportion.L. 4. § Sti. si haered. de statut. Et stat. August. lib. 1. emend. c. 2.
The name of day in Latine dies, Varro deriueth a deo or dio, both which tend to one purpose. In this discourse my endeuour is rather to open the natures then the names of things. The day is thus defined by Plato in his booke De definitionibus, if that booke be his: Dies est ab ortibus ad occasus: so that how many risings & settings there are of the Sunne, so many dayes he maketh. Aristotle more exquisitly, Dies est motus Solis supra nostrum horizontem. Aristotle Topic. 5. Two kinds of daies are most in vse, the [Page 5] ciuill day and the naturall day: the ciuill day it is therefore tearmed because diuers cities and countries made great diuersities of daies, to which they did allot seuerall compasse of time. The Romains did deduce the day from midnight to midnightPlinie lib. 2. c. 77. next following, placing the day as it were betwixt two nightes, as in the beginning of the world night was before the day, and night followed it: but the day of the Vmbrians was from midday to midday: of the Athenians from Sun sett to Sunne-set: of the Babilonians from the ryse of Sunne, to Sunne rysing: the naturall day is that which consisteth of 24. howers being the space wherein the Sunne is rowled about by the motion of the whole bodie of the heauen from a certaine poynt to the same point. The Astronomers make the beginning of this day at noone day or midday, as the Vmbrians; because to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian, and to that circle which is caried through the toppes and poales of the heauen: and euery region hath his meridian of one sort though they haue diuers meridians in number & in particular, but the rising & falling of the sunne is not in any region alway of one sort, because the points are chaunged, and we see the sun diuersly to rise & fall: so that the Vmbrians may seeme in this to haue done rightly, the Athenians and Babilonians not rightly, the Romaines most [Page] rightely, who haue not as the other nations contrary to the order of nature, placed the night in the middest of the day, but haue made the night as the two extremes of the day, & therefore haue placed part of the night in the beginning of the day, and part in the end: of which consideration our law may seeme to haue takē regard in that the forepart of the night it assigneth to the day going before, & the later part to the day following, which may euidently appeare by the inditements of burglary:Crompt. I. P. tit. indictamenta in fin. lib. fol. 224. but the reason of the Romane constitution is learnedly deliuered by Plutarche: Plut. in quaest. Roman. qu. 83. at midnight (saith he) when the day of the Romains doth begin, the sunne is in that region in the lowest point of the heauen, from which it beginneth to tende and to returne to vs and to ascend to our Hemispheare: wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs, & therefore this constitution of the Romanes must needs seeme more probable then that of the Vmbrians, because the beginning of a thing is rather to bee referred to that time when the thing groweth to existence, then when it declineth and beginneth to leaue his existence, so that the opinion seemeth to be good, 11. Elizab. in my Lord Dyer his reports; that whereas the case was that a lease was made to one of land the eight day of May to haue & to hold for twentie & one yeares thence next after ensuing, & the lessee entred the eight day, and his entrie seemed [Page 6] lawfull, and that he did not enter as a disseisor, for by the word (thence) the first instance of the day in which the demise was made is to be intended, and not the next day ensuing the date:11. Eliz. 2 [...]6. Dyer. so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine & sale shall not be accompted for any;5. Eliz. 22 [...]. Dyer. but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse, which order the Canonistes do obserue;Comment. ad l. Titius § Luci. de lib. & post. the night as Plato defineth itPlat. in lib. de definit. according to common admittance is nothing els but darkenesse: Euentide is immediately after Sunset: twilight is a doubtful time equally consisting of light and darknesse, which is alwaies after euentide. For as betwixt knowledge, and ignorance there bee two meanes, namely doubting, and opinion, so betwixt day & night there is euentide & twilight. Ignorāce is like to night, doubting like to twilight, opiniō is like to euentide, because as opinion knoweth after a sort, but knoweth not truely & surely, because it is not grounded vpon certain reason: so euentide is after a sort day, but absolutely & fully it is not, because it is destitute, & bereft of the clere light of the sunne: knowledge which relyeth vpon the sound foundation of things knowne is answerable to the day, which is full of cleare, and perfite light. Now as opinion is more like to ignorance then to knowledge; so euen-tide is more [Page] like to night, whereupon ensueth that twilight must needs bee more like vnto night: but now suppose that a paiment of money is assumed to be made within the compasse of such a day, whether is it to be intended of the Romaine day, or some other ciuill day, or the natural day which is wholly in vse amongst the Venetians: for in Venice the clocke is told foure and twenty times for the day: and it is meete that this question should be decyded by the custome of each countrie.
Now come we to speake of howers, which to the Romaines were not in vse during the space of three hundred yeares: therefore in their lawes of the twelue tables, times are otherwise set downe, namely, Sunne-rise Noone, and Sunsett: the first, second, third, and fourth watch, plenum forum, ful market, boum solutio, the time of the loosing of the oxen from the plough, accensa lumina, candle light, and such like names. But to know the proper vse of these howers that are fitte to bee obserued, which Paulus the Ciuilian noteth: Cuiusque diei maior pars est horarum septem primarum diei, non supremarum: he meaneth not that there should be fourteene howers of the day, because it is manifest that there are but twelue, but his meaning is that the greatest parte of the day is spent in the first seuen howers, if you accompt from the first hower to the seuenth inclusiue, as namelye, from sixe a clocke in the morning to twelue a clocke: for then there will remayne [Page 7] to the other parte of the day but fiue howers; And the former parte of the day is not onely the better for the number of howers, but because men in these howers are more apt for the dispatch of their busines: Wherefore Nonius Noni. lib 9. de compendiosa doctrin. vpon these wordes of Virgill: ‘Nunc adeo melior quoniam pars acta diei est’ commenteth thus. Our youth is the best part of our age, and so Maro wisely calleth the first part of the day the better part, as being the youth of the day: for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone; yet these howers will not be so conuenient for perfitting of busines, as the seauen abouesaid: and therfore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue, to which an other hath gon for a groat from six to twelue, is not altogether vniust, because in the afternoone men be more vnapt and more vnable to trauaile.
The last and least part of time (if it be any part of time) is a moment, which may better be imagined then described, for it is as swift as a man can imagin: and what is more swift then imagination? It hath receyued a definition somewhat obscure of Plato: Momentum est quod nullo prorsus in tempore est Pla. in Parmen.. It is taken by some to be punctum temporis: for as a mathematicall point is that cuius nulla est pars, so a moment is a point of time cuius nulla est pars: yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis [Page] from a moment when he saith: Quod momentum, aut immo quod temporis punctum, aut benefici [...] sterile, aut vacuum laude Plini. in Panegyr., the existence of a moment cannot possibly be discerned, and therfore is not so much as the twinckling of an eye. The vse of a moment is more fit for the operation of Law, then for the act of a man: for the Law doth operate without compasse of time in an instant, but man neuer; for euery act of man must haue space longer or shorter, according to the qualitie of the work: But the nature of such instants or moments which the Law doth imagin is such & so sodaine, vt omnem respuant moram, as in the Ciuill Law is well notedl. 23. §. vlt. D. de adult.: And the reason is because in the operation of Law, that which it doth imagin to be done, is dicto citius, presently, and without delay donel. in suis. D. de lib. et post.: and therefore it is commonly said, it is done ipso iure, or it is said ipso iure, or ipso facto. But this course can not be obserued in the actions of men, who can not doe any thing without space of time, because their act is alwayes continuate, and therefore must needes be done continuo tempore. And whereas the act of man is mixt with the act of Law: though in regard of the same thing the act of the Law be momentary, yet the act of man must needes beare some delay. Those thinges by the ciuill Law which are taken from enemies, doe incontinent become his who doth selse and take theml. 5. §. vlt. de acquir. re. do., The Law doth giue them vnto him presently, but yet there must be a time to take them, [Page 8] that the Law may giue them. And so if when a Lease is made to A. of land for the terme of the life of B, and A. dieth, C. entreth into the land, and inioyeth it, as an occupant; the Law because it wil not haue the freehold in suspence, doth imagin that it was presently and immediatly in C. after the death of A, and that he entred presently: but if we respect this entrie as the act of man, we must needes imagin that he had some time to enter into the land, and by his entrie, which is an act consisting of motion, to gaine the freehold.
It remaineth now according to our purpose, that after this discourse of the partes of time, some thing should be spoken of the differences of time, which I will handle verie briefely: for the matters precedent haue giuen some light thereunto, and they are not of themselues verie obscure.
And first to speak of the time which we cal a continuall time: that in the ciuill Law is sometime taken for as much as (during a mans lifel. 1. §. pe. de off. pre. vrb. l. 2. C. de his qui latr.) and therfore he that hath purchased land for his life, is tearmed Perpetuarius Alci. lib. 1. parer. g. c. 37.: and in the common Law these wordes (a touts inours Littlet. lib. 1. cap. 1. fo. 1.) make but an estate for lifeLittlet. lib. 1. cap. 1. fo. 1., yet in proper sense it extendeth vnto the last mark of time: A long or short time is distinguished either by the measure of the parts of time abouesaid, or by the measure of the Law, which is the discretion of the Iudge. The differēce which is made of auncient time and of late time in the ciuill Law, is rather plain thē ponderous, Vetus accipietur quod non [Page] est nouum In l. 11. de uiui. leg.: And therefore the law of the twelue Tables they call their auncient Law, and that which followeth it the new Lawl. 1. l. 3. D. de pet. haered.. But in this sense the Law of Nations should be the auncient Law, and all other humane Lawes, new Lawes, but auncient by the interpretation of a good Ciuilian is that, cuius initij memoria non extat l. 2. in prin. de ag. plu. ar. c. §. idem lab. aut si in agr., and he expoundeth this to be: if there be none aliue which knoweth when it had his beginning: Neither hath any heard of the beginning of the thing of those which did know itIdem Lab. aut cum quaeritur eo.. A certaine time is that which hath a certaine beginning and ending; An vncertaine time is directly contrary: Certaine times are the yeare, the day, the moneth, &c. An vncertaine time is signifyed by these wordes; before, after, in times past, some time, about such a time, &c. But there be diuers sortes of vncertaine times: First, either that which is altogether vncertaine, as when such a ship shall come out of Asia: for we know not whether it shall at any time come from thence, or when it shall come. Secondly, that is said to be vncertain, which though it be vncertaine whether it shall be or no: yet if it be admitted to be, it is certaine when it shall be: as if I graunt vnto one the Corne that shall grow in such a ground, for I know not whether it shall grow or no: Or if I promise to be a godfather to that child which shall be borne of Martha, within three daies after it be borne, for I know not whether any shall be borne: Or if I promise to pay [Page 9] such a summe of money when Titius shall be of full age: here it is well knowne when Titius shall be of full age, but it is vncertaine whether he shall liue till he come to full age. 3. that is vncertaine, which though it be certaine that it shall be, yet it is vncertaine when it shall be; as the howre of death. The present time is so small and vnsensible, that it is almost of no continuance, and it is but the conioyning of that time which is past to that which is to come; Time past is that which wanteth his beginning; And time future is that which neuer had ending. A conuenient time is after diuers sorts: First, either it is conuenient for some, and not for all; as when some causes are to be heard, and not other some: Secondly, or profitable for all, but not alwaies; as the Termes whilest there are no dayes of vacation, dies non iuridici: Thirdly, or it is profitable for all, and alwaies; as the Assises.
The second Chapter.
That by the Law of Nations, Emperors, Kinges, and absolute Monarches, haue full power
and aucthoritie to seise the Landes and Goods of their subiects, condemned for heinous
offences.
IF any man be so straitly minded, that he thinketh this prerogatiue to be too large and ample for an absolute Monarche: let him think there withall that [Page] himselfe is so base minded, that he cannot sufficiently iudge of the great worth and demerit of so high an estate: for the name of a king importeth so great paines and charge, that a kingdome seemeth not to be a sufficient or counteruailable recompence: For Themistocles his choise must either be verie reasonable, or exceeding desperate, when he accompted it better to sinke into his graue, then to ascende to a throan: Wherfore not doubting of the great charge of it, let vs examin the continuall custome of Nations in the executing of this power. S. Lewis the French king, famous in that nation for integritie, & iustice, doubted not by publike iudgement to prescribe the farmes, lordships, and landes of Peter the Earle of Dreux: And so were the goods and possessions of Charles Duke of Burbon seised and forfeitedBodi. lib. 5. de repub. c. 3.. And they haue a Law in Scotland, that the goodes of persons condemned shall go wholie to the Eschequer without any deduction or reprisall to wife, creditor, or children. The Romanes did allot their fines, penalties, and forfaitures to the sacrifice, and seruice of their Goddes, and therefore they were called Sacramenta Festus in verb. sacrament.. But the Athenians did giue onely the tenth part of the goodes that were forfeited to religious vses: as may appeare by the record of the condemnation of Archiptolemus and Antiphon, which runneth in these tearmes, Archiptolemus & Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi: bona eorum publicata, [Page 10] decima Mineruae data, domus eorum solo aequatae: And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the publike treasury, and did therefore establish a Law, that they should remaine to their childrenAuthent. bona damnato. de bonis damnator. C.. Yet diuers held this Law to be new, & different from the course of auncient Law-makers: for euen in the most auncient times in case of high Treason in all common weales of the world, such forfeitures haue been admitted: for it was thought that the goodes of such persons condemned, were either by fraude, violence, or other corrupt courses wrested from the common weale: and therefore were to be restored to it againe: or els because such persons hauing offended against the common weale should satisfy it that way: & therfore were such goodes conueyed away by Law from wife and children, because for the most part they were vniustly heaped together for the aduancement of wife and children. But such prerogatiues haue been in auncient time so firmely annexed to the Septer and estate roiall, that by the ciuill Law such things which are properly called iura maiestatis, by the common Law iura regalia, cannot be seuered from the regall dignity, & therfore Baldus calleth them g sacra sacrorum, and Cynus, indiuidua h, the inseparable incidents of a kingdom: And by the ciuil Law such things can not be seuered from the princely Diadem, neither can [Page] [...] [Page 10] [...] [Page] any man prescribe in themBald. con. 174. lib. 3. et con. 193. co.. And so it is said in our Law, that where the King hath any commoditie in the right of his Crowne; as if he haue a Mine conteining in it gold or siluer, by the graunt of the land in which it is conteined, the Mine doth not passe, because he hath that by his prerogatiue royall, and they be two seuerall thinges and of diuers degrees10. Elizab. Com. Informacion pur Mines 310. per Wray. And whereas the Priorie of Wenlocke was one of the auncient Priories which were of the foundation of the Crowne, and the King graunted the said Priorie in ample words: yet the King onely did medle with the Mines of gold and siluer that were in itFitz. Na. br. Corrod. 232.: And by the graunt omnium & singularum Minerarum, these Mines shall not passeCom. Inf. pur Mines ib.. And though the king graunt to one the retourne of all maner of writtes, yet he shall not haue the retourne of the summons of the Eschequer, because that toucheth the Crowne, and is not betwixt partie and partie22. E. 3. lib. Assis. pla. 49.. Neither by the Law of England can any man prescribe in such thinges: For it is said 1. H. 7. that no fraunchise may prescribe to hold plea of Treason; and whether the king may graunt any such libertie or no, the Iustices were in great doubt1. H. 7. 23.. But 46. E. 3. it was held by Kniuet Iustice, that a man might claime a fraunchise of Infangtheefe, and Outfangtheefe, and waife and straye by prescription; but he cannot haue the chattels of Fugitiues or Felons, vnlesse it be by especiall graunt, because that it belongeth vnto the King as to his Crowne, and [Page 11] therefore can not passe from him, but by speciall graunt:46. E. 3. 16. and 21. H. 6. this diuersitie is taken: such thinges as accrue to the king by matter of recorde, as the fines, issues, and amerciamentes of courtes doe not lie in prescription: but in such things as belong to the crowne, & the title of thē doth not grow by matter of record, as waife, stray, wrecke of the sea, treasure founde, and the like a man may praescribe in,21. H. 6. praescript. 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes: by which princes must bee directed not by their owne voluntary conceits or vnsatiable desires, least it happen that magna imperia, be magna latrocinia: for good gouernours will not imitate the lewd monarches of nations, as Caligula, Nero, Caracalla, Carinus, Romaine Emperours, nor Seleucus, nor Alexander the great, or rather the proud, which did claime a generall and absolute power indefinite & illimitate ouer all mē, ouer all things, without difference or exception: which did thinke that they might giue lawes to others and not to bee bound by any; which pretended that there was but one law for all common weales, and that was to obey euerie thing which the king commaunded, and that that was iust in regard of the subiectes which was profitable to their ruler, like to that prince of pirats and robbers in Heliodorus, Heliod. lib. 1. Aethiop. histor. Si imperij lege vtendum fuisset, prorsus mihi velle suffecisset: Like to that saying of Iulius Caesar the vsurper. Sylla literas [Page] nescijt qui dictaturam deposuit: mecum homines consideratius loqui debent, ac pro legibus habere quae dico: Sueton in Caesar. like to that of Iulianus though spiced with some sprinkle of mildnesse: Polliceor absque omni praerogatiua principum, qui quod dixerint, vel sensuerint pro potestate authoritatis iustum esse existimant: Ammian Marcell. lib. 23. or like to that sinister clause of the Popes insolent vanitie (de plenitudine potestatis,) the last of which wordes Baldus playing withall, putteth in steade of it tempestatis: Alciat. reg. 3. praes. 8. et ad L. 2. C. de in ius voc. yet I will easilie graunt, that if any prince doe by sword and conquest subdue any countrie; as the whole countrey is gained and possessed by this exploit: so all the landes and goods of euery inhabitant in that countrey are his, vntill hee did giue them or restore them vnto the former owners: As by the lawe of this realme of England, if a man be attainted of felonie, and the Queene pardoneth him all fellonies, and executions, and doth likewise pardon and release all forfeitures of lands and tenements, and of goods and chattels, this pardon and this release cannot serue but onely for the life of the partie, if the office be found, for then the land is the Queenes by matter of recorde, and therefore there must bee expresse wordes of restitution: and as to the goodes, the Queene is entituled to them without office:29. H. 8. Br. chart. de pard. 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes, and dyed seysed, and that W. his heyre intruded, and after [Page 12] by acte of parliament the Queene pardoneth all intrusions, in this case the entrie and offence are pardoned and released, but not the issues, and profits: for the Queene was before entitled by matter of recorde33. H. 8. Br. charters de par. 71. intrusi. 21. Issues ret. 22. for when any thing commeth to princely possession which did before belong to any inferior person, it cannot bee restored to him without actuall donation. And Xenophon sayeth, that it hath beene a perpetuall lawe amongest all men, that all thinges taken by warre, whether they bee money, goods, or men, doe belong to them which tooke them:Xenoph. lib. 7. Cyropae. and Thucydides affirmeth the same to bee a common lawe to all nations:Thucyd. l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods, and did remitte the residue to the conquered persons.Appian. lib. de bel. ciuil. 2. And it hath alwaies beene accompted the propertie of barbarous nations to haue no lawe written nor ratified by common consent, neither touching these rights nor prerogatiues, nor other matters, but onely the voluntarie conceite of the monarch, as Liuie hath iudiciously obserued:Liui. lib. 37. But Aristotle maketh one exception from the rule, and that is of the Spartan Kings, whome hee affirmeth to haue directed their actions by prescript of lawe:Ar. 3. polit. and Diodorus Siculus saith, that the Aegyptian kings did first beginne to rule by a setled and determinate lawe, and that all other nations were gouerned by [Page] the chaungeable wil of their soueraigne,Diodor. Sicul. lib. 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian; Te legibus subiecisti, legibus Caesar, quas nemo principi scripsit: And presently after he saith, Quod ego nunc primum audio, nunc primum dico: non est princeps supra leges, sed leges supra principem. Plin. in Panegyr. But to open and declare further the soueraigne and ample authoritie of monarches ouer the lands and goodes of their subiects, though it haue beene in auncient times held and affirmed by the ciuill law, that such thinges as are parcell of the law of nations could not be taken away by the prince from his subiectes: and therefore they might not be depriued of their demesnes or inheritance of lands, or of the property of their goods and chattels which they enioy by the law of nations:§ Sed natural. instit. de iu. na. as I haue sufficiently shewed in my Direction to the study of the Law, Cap. 7. & 8. but onely of such thinges as belong to them by the Ciuill law: yet by the opinion of the later Ciuilians this is helde to bee no law, but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully prouethDeci. Cons. 209. in casu 2. 69. consultus. 390. quoniam 519. visis. 557. accurate., and this later opinion seemeth to bee more reasonable, and more consonant to the truth: for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations, yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe: so that they are not altogether parcell of the law of nations: [Page 13] Bal. & Ia. in l. omnes. C. Si con. ius vel vtilitat. pub. Againe the right of demesne and property is not alike in all nations,Herodot. li. 4. Strab. lib. 11. Arist. lib. 2. polit. Tacit. de mor. Germa. Caes. lib. 4. & 6. de bel. Gal. but is moderated, and ordered by the lawes of particular cōmon weales; But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands, goods, chattels, or dammages: Surely this is permitted by no law, but by the ciuilll. 2. C. de prec. imp. off. and common law expressely prohibited: for the king cannot grant to any person that he shal not be impleaded or sued, in this or that action: & though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor, yet in this case he doth not take away the action of the partie, but doth onely restreine him to bring his actiō in a certain place:8. H. 6. 19. But here it may be obiected that a king or absolute monarch may without cause seise the lands & goods of his subiects:li. vlt. C. de consul. for it is plaine that a king hath more power ouer his subiectes, then the father hath ouer his children: but by the ciuil law the father may take away the goods of his children when hee will:l. placet. 79. D. de acquir. haere. l. acquirit. 10. D. de acquir. re. do. therefore the king may take away &c. To this reason grounded vpon the ciuill lawe, I do thus answere, that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children: for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection [Page] of the lands goods & persons of their subiects, so that they may not without cause bereaue them of their goods, and therefore there is a good rule in the ciuill law that in priuatorum agris, nihil ne publico quidem consilio cum ipsorum iniuria capi ius est. l. Venditor. 13. D. de com. praed. And to that purpose Cicero speaketh well: Videndum erit ei quirempub. administrabit, vt suum quis que teneat, neque de bonis priuatorum publice diminutio fiat: and for this cause God did appoint a certain portion of land to euery tribe of the Israelites:Deutero. 17 and by reason of a priuate title Naboth would not sell, or chaunge his vineyard with Achab 1. Reg. 21. and in the inauguration of the king of Hungarie this was exacted of him by oath: vt iura regni integra conseruaret: C. in tellect. 33. ex tr. de iureiuran. And in the ciuill law it is said, Qui pleno iure Dominus est, alie nandi, dissipandi disperdendi, ius habet: l. 7. cod. de relig. l. sed etsi l. 25. §. consuluit D. de haered. petit. And againe, suae quisque rei arbiter, ac moderator est. l. in remandat. 21. C. demand. So that it is euident that without cause, the propertie which subiectes haue in goodes and landes may not bee altered by their prince. And therefore wittily sayeth D. Gentilis, that they which argue to the contrarie do not dispute, or drawe their arguments ex cast is fontibus Philosophiae, aut ex ipsis iurisprudentiae riuis, sed e scholis sophistarum: hallucinati sunt Theologi, adulati sunt iurisconsulti, qui omnia principibus licere asceuerarunt: Albe ric. Gentil. Dec. 1. disput. 2. disput. I would not be mistaken in this Chapter, sithence I hold an indifferent course betwixt prince and people: neither consenting to them which say, that princes may seise the lands [Page 14] and goods of their subiects without cause, nor to them which thinke that they may not seyse their lands and goods for any cause: but my resolution is, and the summe of this discourse is, if it bee diligently and impartially obserued, that princes may lawfully claime, and take to their owne vse the lands and goods of their subiects for the causes abouesaid, and prescribed by lawe, and not otherwise: and by this word (Princes) I meane none but absolute Monarches: for the law of nations alloweth this prerogatiue to none other. And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law: Lex est rerum omnium domina, quia scilicet & ciuitatis cuiusque & ciuium singulorū patrimonium constituit, definit, tuetur: Lex sola dominiū rerum confert: sola dominij acquirendi modos constituit, citra quos acquiri nullius rei dominium potest. §. 2. de bon. posses. & apud Vlpi eo. tit. reg. 19. This foundation being laid, I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable: as when a true man is pursued as a felon, and he flieth, and waiueth his owne goods, these are forfeited as if they had beene goods stolne.29. E. 3. 29. 37. H. 8. Br. Estray. 9. Stam. fol. 186. a. And so if a man be outlawed of felony or treason, he shall forfeyt all the landes & tenements which he had at the time of the felony or treason cōmitted, or at any time after, as well as if he had beene attainted by verdict:28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent, as to the landes [Page] and tenements: so that a feoffement of land, or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit: but he saith that as to an attainder by verdict, that it shal haue relation to the time of the felony done, according to the supposall of the inditement, as to lands and tenementes: and so it is of an attainder by confession:Parkins Graunts. 6. But M. Stamford being better aduised saith, that as soone as any of the offences aforesaid are committed, hee is restrained to make a gift or any other alienation of his lande: and if he doe, it shall presently bee made void by his attainder, and it is not materiall whether the attainder be by outlawrie or verdict, and this is agreeable to the booke of 38. E. 3. fol. 37.Stamford fol. lib. 3. 31. a. but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent, and forfeiture by attainder by verdict shall haue relation to the verdict.Stamford. 192.
The third Chapter.
That the worthinesse of blood hath beene principally respected of all nations.
THe diuision of inheritances in stirpes, & in capita, hath made great diuision in diuerse common weales, yet in all of them the worthinesse of bloud hath beene regarded: By the Romane law the sonne of [Page 15] the elder sonne who is dead shall equally succeede in the inheritance with the second sonne. And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances, and for the deciding of it, the Emperour Otto the first, did cause a Parliament or generall assemblie of estates to be held for the disceptation, and deciding of this doubt: When after much busines and argument, no determination could be had, the matter was ordeined to be tried by single combate, an vsuall thing in these daies (for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and twoWitichiudus lib. 2. histor. 2. Sigebert in chronic. Ottonis 1.) and a formall triall referred to God, when mans wit was at a nonplus: But in this case, that part ouercame which did accompt the sonnes of elder sonnes as sonnes; and therefore it was ratified by Law, that they should equally diuide the inheritance with their vncles. Amongest other nations diuers contentions haue risen about this matter: for when Eunomus the King of the Lacedemonians had two sonnes, Polydectes the elder, and Lycurgus the yonger, and Polydectes deceased leauing no sonne lyuing at the time of his death, and therefore Eunomus being dead, the septer of that kingdome came to the handes of Lycurgus: afterward when Polydectes his widow had brought forth a sonne, Lycurgus did willingly, and readilie yeeld to him the septerPlut. in vit. Lycurg. Iustin. lib. hist. 3.: Which act of Lycurgus agreeth fully with our Law, whereby it is ruled, that if a [Page] man haue a sonne, and a daughter, and the sonne purchaseth land, and dyeth, and the daughter entreth, and after the father begetteth an other sonne of the same wife, this sonne shall haue the land19. H. 6. 6.. So if a man enfeoffe an other vpon condition, and the condition is broken, and the feoffor dyeth without issue his wife priuement enseint, and the brother of the feoffor entreth for the condition broken, and after a sonne is borne, he shall auoide the possession of his vncle, & may lawfully claime the inheritance9. H. 7. 25.. And it is likewise said, that after two, or more discents, the heire afterward borne claiming by discent may enter into the land; but he shall not haue a writ of Accompt for the mesne profites, nor any writ of Wast9. H. 6. 23.. But in cases of purchase the Law taketh a difference, and therfore it is said 5. E. 4. by Billing, that if a man deuise land to a man, and his heire, and the deuisee dieth hauing issue a daughter, his wife being priuement enseint with a sonne, who is afterward borne, the daughter shal reteine the land in perpetuum, which the Court graunted5. E. 4. 6.. And 9. H. 6. it is said, that if a remainder cannot veste in any at the time when it falleth, it shall not veste in him that is borne afterward, where an other hath entred before9. H. 6. 23. 3. Eliz. 190. pla. 18.. But to retourne to the examination of this matter by historie, Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead, a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes, who died before [Page 16] his father, and Cleonymus the second sonne, the vncle of Areus, but by Senate-decree the kingdome was adiudged to Areus Pausan. lib. 3.. And Polydore Virgill reporteth that king Edward the third being deceased, Richard the second, the sonne of his eldest sonne obteined the kingdome, and was preferred before Iohn, Edmund, and Thomas, the sonnes of king Edward Polyd. virg. in hist. reg. Angl.. Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth, that when Hanno had inuaded the kingdome, and expulsed Erkenbalde the sonne of his elder brother, this matter was brought into question: in the ende Hanno was constrayned to laie aside armes, and to stande to the iudgement of the Peeres, who adiudged that Erkenbalde should haue the same power and interest in the kingdome, which his father might haue had if he had suruiuedPaul. Aemil. in tit. Carol. Crass.. Neither will I denie that examples may be produced on the contrarie part: as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia: for it is deliuered by Herodotus Herodot. lib. 7., Iustin Iustinus lib. 11., Plutarch Plut. in Artaxerx., that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes (as Herodotus) Artemenes, as (Iustinus calleth him) and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia, Demaratus was at the same time there, who was driuen and expulsed out of the kingdome of Sparta, and he signified vnto them, that the Law and custome of the Spartanes [Page] was, that the sonne that was borne after the father had attained to the kingdome, was to be preferred before the elder brother who was borne before; for which cause the kingdome was adiudged to Xerxes the yonger sonne, who was borne of Darius being king, whereas the other was begotten of him being a priuate man: But this iudgement was after reuersed; For when after the death of Darius, the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man, and Cyrus being borne of him after his aduauncement to the kingdome, and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes, and his brother, the Persians notwithstanding the former iudgement, did now adiudge the kingdome to Arsica Plut. in vit. Artaxerx.. Neither am I moued though in the contention for the Dukedome of Millayne, betwixt Lodwike and Galeatius bretheren, whereof the one was borne before his father obteined the Dukedome, the other after, the contrarie were determined for LawGuicciard. lib. 1. histor.: For by the most examples of euery common weale, and by the continuall practise of nations most ciuill (which onely course I obserue in this discourse) the right of Primogeniture, or elder-brothership is fenced, supported, and defended against this last decree of the Millanasses, and that first of the Persians: For Herod the king of the Iewes, did preferre in the succession of his kingdome Antipater, who was borne before he [Page 17] was king, before Alexander and Aristobulus begotten after he was kingIoseph. lib. antiquit. 16.. And many yeares after in Hungarie, Bela their king being dead, Geysa being borne when he was a priuate man was inuested with the CrowneFl. Blondus Decad. 2. lib. 6. Micha. Ritius lib. de regi. Hungar. 2.: and before that Otto the first could be setled in the Empire of Rome, his brother Henry made a quarrell to it, because he was borne when his father was Emperor: But the matter discending to armes, and battaile, victorie did adiudge the Empire to Otto Sigebert. in Chron.: Wherefore two or more contrarie examples are not in this case to be regarded; As that of Genzericus the king of the Vandales, who made his testament in this forme, or rather this Law in forme of his testament, Si Rex moritur, qui ei genere proximus, et natu maximus erit regni haeres esto: for Procopius noteth his great age when he made this Law, and it may be that others will note him for his dotage if he did amisse, for his discretion, if he did it to preuent a daungerProcop. lib. de bel. Vandal.. So when Charles the king of Sicely died he had two sonnes, Charles Martell, and Robert: Martellus died liuing his father, but leauing a sonne, whereupon the Lawyers had plentiful matter of disputation offered vnto them, whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather: but by the Popes meanes, Robert obteyned the kingdome: But the Emperour Fredericke reuersed this sentence, and the Pope cancelled his rescript r. But D. Bartolus giueth this reason of [Page] the Popes doinges, because the kingdome of Sicilia was one of the fees of the Church of Rome, so that it did not belong to Robert by any lawfull succession, but by the graunt and inuestiture of the Lord of the feeBarto. in Arth. post fratr. C. de legit. hered.. Neither is it materiall that the Nomades, Barbarians, did preferre the yonger bretherne before the children of the elder bretherne, as Strabo reporteth: [...].Strabo lib. 16. yet I will graunt that in the succession of regall dignities, the worthines of bloud is lesse to bee respected, then in the succession of common inheritances, because in that case the commoditie of the subiectes, and the abilitie of them that are to succeede is politikelie to bee respected: And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes, the profite, peace, and safetie of the same, is more to be heeded quàm sanguinis series, the course of bloudLuc. de Pen. in 5. nepot. C. qui num. lib. 10. et in l. 1. C. de lyro. lib. 12. Bald. in c. 1. de feud. March.. And Roboam preferred Abias his yonger sonne, before his elder bretherne in the succession of his kingdome.2 paralip. 11. And Salomon the yonger brother2. Reg. 1. was preferred before his elder bretherne: But this must be done warilie, and by the warrant of a good conscience; otherwise it can neyther please God, nor profite man, least a king doe by his choise preiudice his subiectes; as Micipsa did by the adoption of [Page 18] Iugurtha Salust. in bel. Iugurth.. But the reasons are manie and forceable, wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected. First, Ius quod personae inest per modum substantiae, est ab ea inseparabile, et in nullo alio subiecto potest verificari Arg. l. for did. C. de excus. mun. lib. 10.. But ius primogeniturae is in the eldest sonne, or in his issue per modum substantiae: therefore it is inseparable from him, and cannot extende to any other. Secondly, the aucthoritie of Vlpian prooueth it, affirming that hee is a patritian, who is borne before his father was made a Senator, as well as he, who is borne after that hee is possessed of the Senatorie callingl. Senator. S. D. de Senat.. Thirdly, it is apparant by manie places in the feudall Law, that sonnes and nephewes may succeede in the fees, and inheritances of Dukes, Marquesses, and Earles: and so it is of the inferiour and vulgar sort of men. And it is well said of D. Hotoman: Ius sanguinis quod in legitimis successionibus spectatur, ipso natiuitatis tempore quaesitum est. Fourthly, it should bee against all Lawes proximitatis graduum, that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree. Fifthly, because Primogenitura is an inseparable incident to the eldest sonne, and whatsoeuer is claymed by this, must bee claymed by [Page] the person of the eldest sonne, and none can succeede in the place of the first begotten as first begotten, because there cannot be two first begotten: But no Law more respecteth the worthines of bloud then the common Law, which preferreth the brother before the sister in case of discent: the elder brother before the yonger, whereas the middle brother purchaseth land: the sister before the vncle, and the vncle before the cosinLittlet. tit. Fee simple., and all these particular prerogatiues of kinred Mast. Littleton windeth vp as it were in one clew, when he saith, that when a man purchaseth land in fee simple, and dieth without issue, euery one, that is his next cosin collaterall for default of issue may inherite: and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in Cleeres case, that in a collaterall discent from any which purchaseth landes, and tenements, and dyeth without issue, the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree, as the brother of the graundfather of the fathers side, and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues: And so the brother of the great graundfather of the fathers side, namely the brother of the father, of the father, of the father of the purchasour and his issues bee they male or female shall [Page 19] bee preferred before the mother of the great grandmother, namely the brother of the mother of the father of the father of the purchasor and his issues. For the female sexe is more base then the male in lawe. And it was likewise agreede, that if the purchasor dyed without issue, and hath not any heire of the part of the father that the land shall discend to the next heire of the parte of the mother, that is, to the race of the heyre of the males of whence the mother is discended, rather then to others, and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire, and the heire himselfe came immediatly by the womā, but the bloud which was betwixt the cosin germane of the fathers side, & him though it came originally from the woman, namely the grandmother, yet it is deriued to the heire by the males, so that the dignitie of the bloud doth surprise and excell the proximitie of the degree; therefore it was adiudged that the cosin should haue the land.15. Eliz. comm. cleres case. 442.
The fourth Chapter.
That in making title by prescription and continuance of time immemoriall, all nations
haue consented.
OF all worldly thinges time is most puissant: for it endeth some things quickly, some things once, and at last, some things it preserueth, some things it continueth vnto the end of the world, and the force of time is pretily described in these poems.
If by the course of nature time be such an incroacher vpon other things, then surely arte & law doth imitate nature which giue vnto it such power and authoritie, as to chaunge, to raise, to alter, to defeat, to strengthen and to establish titles, neither doth the law of nations attend the strict circumstances of the ciuil or common law, in which these two lawes doe square: for by the ciuill lawe there is required iust title which the common law requireth not: and bona fides Gl. h. c. illud de prescrip. which the common law requireth not and continuall possession, which the common lawe onely requireth. Prescription [Page 20] was first brought in, that there might be a certainty of titles and peaceable possession without contradiction, for a long time might turne to a right: wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio, & praescriptio vt sit aliquis litium finis: b. lib. 1. de vsucap. whereupon that speech of the Lacedemonians in Isocrates is grounded: Wee holde this lande giuen vnto vs by the posteritie of Hercules, confirmed by the Delphicke Oracle, and the inhabitantes of it being ouercome of vs (heere note a triple title in showe, and yet all these in effect but a prescription) yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time: we haue held Messana more then foure hundred yeares. Isocra. in Arch. And so Iepthe did pleade prescription against the Ammonites;Iudic. c. 11. This land (said he) haue wee possest three hundred yeares. The French maintaine their title of Fraunce onely by prescription, as Bodinus confesseth:Bodin. lib. de repub. for conquered it was by king Edward the third that happie & triumphant Monarch: assured to King Henry the fifth and his heires,Graft. in H. 5 not to Queene Katherine and her heyres:Pet. Mar. comm. in lib. iud. And some Diuines holde (for others doe oppose themselues against this lawe of prescription)Aug. de te. ser. 105. Epiphan. and obserue that the Iewes neuer made question of the title of their Semi, because the Cananites did defend themselues by the prescription of 500. yeares: wherefore Artabanus the Parthian king did, as Tacitus sayeth, Per vaniloquentiam [Page] vainely demaund of Tiberius the territories & possessions of the Macedonians hauing bin a long time possest of Cyrus and Alexander. Tacit an [...]. li. 6 And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares.Ioui. 30.34. But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus, of Constantine and his sonne, and of Alexander Seuerus: Hero dia. li. 6. zon. Ammi. lib. 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer, name, and to this day keepe: and vaine was the quarrell which Masinissa made to the Carthaginians lande,Liui. lib. 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed, which was no more then coulde bee compassed by the hyde of an Oxe being cutt into thonges, for they had possest these landes almost seauen hundred yeares: likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians, because these people were once subiect vnto his auncestors: & hee is well confuted of the Romanes by the lawe of prescription, that though his great grandfather, did atchiue these cities by warre yet his grandfather and father neuer enioyed them, but the cities enioyed their libertie. There be some interpreters of the lawe, which thinke the king of Fraunce by [Page 21] prescription to be exempted from the Emperours subiection,Fulg. Sace. lib. 1. C. tit. 1. against whom rather adulatoriously then aptly Alciat replyeth, that no prescription of time wil hold place against the Empire:Alciat. lib. 5. de iust. for that is not true in a prescription of time, which is immemoriall, that is when no man as it may be commonly beleeued, hath eyther seene or heard the contrary: and this by the ciuill law is the space of one hundred yeares.Alexan. 5. Cons. 16. Alciat. 3. cons. 24. But here before I wil grant that such prescription will hold against a king or an Emperor, this is onely in such case where neyther possession hath beene had, nor clayme made against the said king or Emperor, for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce, and beare in their scutchions the ensignes and armes of that kingdome, and so keep the ciuil possession of that kingdome, though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile: but in a case of a common person prescription will hardly run against the prince. Therefore it hath beene held in our bookes, that if the kinges tenant in Capite bee seised of an aduowson, and the church happeneth voide, and hee dyeth, and the sixe monethes doe passe,14. H. 7. fol. 22. (nay suppose sixe score yeares doe passe) then an office is found, the king shal haue the presentment notwithstanding the laps before the office. But if the question be asked whether the ordinary [Page] may present by laps against the king, and if he may not, how the cure shall bee serued in the meane time betwixt the laps, and the kinges presentment:Ibid. fol. 21. It is answered by some that the ordinarie may present one who shall be remouable at the kings will, and some thinke that he shal sequester the profites of the benefice to serue the cure: but in some case the King may not surcease his time, as if the tenant for terme of life do forfeit his estate to the king, if he be not seised during his life hee may not afterward seise it,8. H. 5. Trauers. 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth, and he which commeth in of the estate of an other can haue no greater right then he had: for if a man haue land in the right of his wife, or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it:18. E. 3. 20. so if there be Lord and tenant, and the tenant alieneth in mortmaine, and the Lorde entreth, yet hee shall haue onely such right in the land as he hath in the seigniorie, notwithstanding that the statute do say, Quod proximus dominus intrabit & retinebit in feodo: 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason, and naturalia sunt immutabilia: and the princely prescription must bee maintained bona fide. Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King, did vniustly withhold that Cittie frō the king being the lawful owner then, because hee had inueterate possession in the same, for by [Page 22] the ciuil law a man may not prescribe in a pledge:l. 9. C. de pi. act. Deci. 3. consi. 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort: Parum sincer a fide (saith he) veteris pacti conditionem multis cauillationibus inuoluebat: Iou. lib. 1. for it is true that Cephalus saith, in quaestione valde dubitabili non est praescriptio. Ceph. cons. 102. But surely bona fides is requisite in such matters of prescription, except it be apparāt that the will of God is for the prescription: Wherefore Bellarmin confesseth, that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land, wherein we and our ancestors inhabited.Bellar. 5. contr. But he doth not possesse them bona fide, because hee can not by any speciall meane conuey them particularly to himselfe, for as Doctor Gentilis hath well obserued: An Turcae opinio latrocinantis cogitat de iusta voluntate Dei. Alb. Gentil. lib. de iu. bel. 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescription, that hee did not thinke it conuenient to remoue or take away from the vsurpers any thing that they haue violently taken from the owner, if they haue had possession during the space of fiftie yeares onely.Cicer. 2. de offic. Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme: Wherefore Demosthenes sayth well; Hee that hath helde an other mans landes or goodes a long time should not please himself therewith, but impute it to fortune which [Page] hath hindred the lawfull owners.Demosth. ad maca. Is any thing more to bee laughed at then that which is said of some interpreters of the law, who are not to bee laughed at, that the kingdome of Spaine may now be claimed by the Romane Emperour, by reason of his ancient imperiall right, whereas it is manifest that sithence the time of the ancient Romane Emperours, it hath beene a long time possest of the Saracens, a long time of the Spaniards.
The fifth Chapter.
That by the consent of all nations consent principally maketh a lawfull mariage.
IF a man should examine the seueral rites, circumstances, and ceremonies of the diuers people of the worlde in the knitting and celebrating of mariage, he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon: for euery nation hath had in this by some fatall lotte both their custome and chaunge of custome: I will onely endeuor to proue that which is conteined in my assertion, that by the consent of all nations &c. Tne definition of thinges is alway the best proofe: therefore it is good to beginne this discourse with the definition of mariage: [Page 23] Mariage is the lawfull coniunction of man and woman, conteining an indiuiduall societie of life, and the participation of diuine and humane right 30. q. c. nullam., where it is said, a lawfull coniunction, nothing els is meant, but a free consent executed by the contract, which as it is the beginning of the definition, so it is the ground of the mariage, and these wordes, conteining an indiuiduall societie of life, do signifie that they shall continue foreuer together as long as they liue: Howbeit the rule of the common Law do in this sauour of the irregular Religion, Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare Gazalup. in verb. nuptiae.. And for the further proofe that the ground of mariage is consent, there be three thinges by the Canon Law required to mariageCodi. ap. C. vlti. c. 27. q. 2., Fides, Proles, and Sacramentum: Fidelitie which is put in the first place is the hart of mariage, and it springeth of consent: and therefore if a man do contract with a woman in this sort, Contraho tecum si te pro quaestu adulter andum exposueris, this is no contract of mariage, because it is contra bonum fidei, which consisteth in this, that neither of the maried couple shall break the bond of mariage, but shall faithfully and vnitedly obserue it. Likewise Progenie is an other thing that mariage requireth, and therefore it can not be a good contract of mariage, if it be made in this forme, Contraho tecum si generationem prolis euites, or si venenum sterilitatis accipias, because mariage was instituted of God for the solace of [Page] man, and the multiplication of mankind by children. Thirdly, a solemne promise is requisite in mariage: and therefore if a man do contract with a woman donec ditiorem, vel pulchriorem habeat faeminam, this is no good league of mariage, because it is contrarie to the oath of an indiuiduall societie. And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion, and a bondslaue to his cloyster; for England (the Lord be praised) is at this day as free from Monkes, as it is from wolues. Three things are required at his handes, namely, chastitie, obedience, and the abdication of propertie, as well in landes as in goodesGazalup. in verb. matrimon.: But that consent hath been the ground of Matrimoniall contractes, may appeare by the vsuall course and practise of nations: Wherefore Virgill exclaymeth against Romulus for marrying the Sabine women against their willes, and accompteth it rather a rape, then a mariage, Raptas sine more Sabinas: sine more, that is, contrarie to the custome of nationsVirgil. 8. Aeneid.. And Propertius inueyeth against him for this more vehementlyPropert. 2. Eleg. 6.:
Yea diuines Tertullian and S. Augustine haue sharpely reprooued this fact of Romulus Tertul. de de spect. et adu. val., and [Page 24] Cyprian agreeth vnto them, reprehending Romulus in this maner, Vt Matrimonium facias rem concordiae per discordiam auspicaris, rapis, faerocis, fallis, & nuptiae tibi sunt rupta hospitij faedera Cypri. lib. 4. de ido. na.. By the Ciuill Law mariage may bee concluded by an oath, which beeing but a contract, it called sponsalia de futuro ff. de verb. sing. l. verbum erit.: And so in auncient time the Law seemed to be, as may appeare by these wrested words of Cydippe to Acontius:
The mariage betwixt Dido and Aeneas was by consent accorded, by consent prosecuted, by consent executed, beeing witnessed and celebrated coelo tonante, and no otherwiseVirgil. lib. 4.: for the Phrygian and Tyrian Lordes followed their hunting, whilest the great hound of all caried away the hare. And the mariage betwixt Martia and Cato wittily described by Lucan had no publique attestation, but the presence of Brutus onelie:
But I would not be so vnderstood, as though I should haue this meaning, that nothing els is requisite to the perfection of mariage, but onelie the bare consent: For to explane my meaning more at large, I hold that euen by the Law of Nations, consent is onlie the efficient cause of mariage: but [Page] the materiall cause is corporum coniunctio, the formall, the bringing of the wife into the husbandes house, et aquae, e [...]ignis interuentus: and therefore in my opinion D. Hotoman is not iustly reprooued of D. Gentilis Alberic. Gentil. lib. 3. lectio. et epistolar. c. 6., for holding that this deductio in domum is the formall cause of mariage, for though the Emperour sayL. 15. D. de cond. et dem. vxor fuisti: deductio in domum ostendit, so that by the opinion of Gentilis, this deductio shall be onely a proofe, and argument of the mariage & no substantiall forme of it: yet by his fauour this is nether logike nor reason; for may not an argument be drawne à causa formali, and because anima is a signe corporis animati: for a man may reason thus, animam habet: ergo est corpus animatum: therefore shall not anima be the forme of a lyuing bodie? But if we will be ruled by Iustinian, the opinion of D. Hotoman seemeth in this to be neerer to the truth, though his learning and iudgement, if I haue any iudgement, be farre inferiour to the worthines of Gentilis: yet I acknowledge them both to be worthy men, et vitulo tu dignus & hic. But to examin the rule of the Emperour, which before I spake of, non impletur nuptiarum conditio nisi nuptiarum accedat festiuitas L. sancimus 24. C. de nup., it seemeth that there must be necessarilie deductio in mariti domum, as may appeare by the auncient custome of the Romanes in their mariages, which is briefely glaunced at by Virgill in these wordes, Sparge marite nuces Virgil. in Bucolic., to which there is a custome in some part [Page 25] of England somewhat correspondent, which hath been much vsed, namely, that the husband breaketh a cake ouer the head of the wife, as soone as she is within the threshold of his house: which custome and the like I will neither commend, nor discommend, but will onely censure them somewhat agreeably to Senecaes Augusti. lib. de ciuit. dei 6. c. 10. ex Senec. lib. de super stiti. et matrimon. censure of certaine pointes of the ciuill theologie of the Romaines, Haec omnia populus seruabit tanquam cōsuetudine recepta, non tanquam deo accepta. And though Gentilis presse Hotoman with this obiection out of the ciuill Law, that the mariage may be celebrated by an other, viro absente; but not muliere absente l. 5. D. de ri. nup.: Yet that is no ordinarie course of mariage, but extraordinarie: As when the parties cannot conueniently come together, as being seuered by Sea, which hapned lately in the case of Iames king of Scots, who was maried to Anne the sister of the king of Denmarke, by a substitute or enter-deux, as Chythraeus reportethChytr. lib. de reb. orb. arcto. ab anno 1580. vs{que} an̄ 1590. Eyzinger. in thes. princip.. And the cannon Law which D. Gentilis too hastilie calleth irrationale, erroneum, caecum, auarum totum Alberie. Gentil. lib. 1. lecti. et epistolar. c. 11. will shew this difference vnto him: for it maketh two sorts of mariage, both lawfull and perfite, yet the one it tearmeth verum, the other praesumptum. Verum Matrimonium is thus defined: Which is made betwixt lawfull persons by apt wordes, all impediment of law remoued: The other is thus defined, which by the interuention of some other is celebrated betwixt lawfull persons by the arbitrage of some others, [Page] and there doth not immediatly succeede copula carnalis Gof. in tract. de contrah.. But in deed these verie wordes, duxisse vxorem, which signifieth the complementall act of mariage doth sufficiently import the necessitie of the forme of mariage aboue mentioned. The efficient, materiall, and formall causes of mariage haue been aboue shewed: The finall cause, as all will agree, is the propagation of childrenl. si vicin. 9. c. de nup., and the restraint of wanton lust: If this assertion should be examined by the ciuill Law, it might receiue great disputation, varying and straying wholie from scripture, the authentike of Religion, yet wholie for consent: for the ciuill Law is so strange for consent, that it is positiuely set downe by a great Ciuilian; That if a man doe vse too familiar acquaintance with a gentlewoman that setteth not her bodie to sale vnto him, that this is not concubinage, but mariage Modestin. in l. in liber. 24. D. de rit. nup.. An other Ciuilian holdeth, that a woman to whom one hath shewed an husbandlie affection, ought in continuance of time to be accompted his wife Papin. in l. donation. 31. D. de donat.: To whom agreeth Vlpian saying as boldlie and libidinously, Betwixt a concubine and a wife there is no difference, except the wife be a more worthy parsonage Vlpian. in l. item legato. 49. §. 1. D. de leg. 3.. Yea euen in the bodie of their Law it is set downe for a rule, that inter concubinatum et matrimonium nihil nisi affectio interest L. 3. §. 1. D. de donat. inter vir & vxor.: ingenua{que} mulier domi ante testationem pro vxore habenda est L. 3. §. 1. D. de donat. inter vir & vxor.. These are the oracles of the parots and parasites of the Romane Emperours, who sought to sholder [Page 26] out the truth of God his word, and to varnish their owne sinnes, by the dreames of such dissolute Lawyers, who thought perhaps that they might as wel defende, as commit fornication, and concubinage: Vpon whose reuerend opinions the Pope sprinckleth the holie-water of his dispensations, yea and dispenseth for incestuous mariage, not onely with Dukes, and noble men, but as Angelus Perusinus sheweth, euen with Barbors, Tailors, and ButchersAngel. Per. in l. matrem. § filiam ad Treb.. But it is fitlie said by some, that he doth rather dissipare quàm dispensare Felin. post Doct. in C. quae ecclesiarū de constit.. And others haue been bolde to saie, that he which obteineth such dispensation, perhaps will hardlie escape in foro poli, in the court of heauen, howsoeuer hee be safe in foro Romae, in the court of RomeArg. C. fin. de praescript. et Alci. in l. 5. pedum C. fini regund.. Howsoeuer the Canonistes, whereof the most part doe beare the cognisance of the whoore of Babylon, do auouch that by such dispensation, veritas naturae per Papam non tollitur, (which he cannot doe though he would) sedinumbratur: and therefore saie they, the dispensation is lawfullArg. c. sedes de rescript. l. 3. §. permit., an argument drawne from the owles nest, and from no place of Logike: But the Emperour Theodosius speaketh onelie of a lawfull and honest consent, in more modest tearmes, saying: Matrimonium absquè vlla pompa et celebritate nuptiarum, atquè adeo abs{que} vllis dotaribus instrumentis firmum est, liberi{que} ex eo suscepti iusti sunt: Heere the Emperour excludeth pompe from mariage, but not consent: Neither [Page] doth he admit concubinage to be mariagel. si donatio [...]um. 22. c. de nup.. It is now shewed that consent is required by the imperiall Law to the constitution or making of mariage. It shall not be amisse to inquire, whether it were necessarie or no by the auncient Law of the Romanes, which was in the time of their florishing estate, the Law almost of all the Nations of the world, as Ouids speech importeth:
And Claudian auoucheth the same, though he liued when the Romane common weale was much empaired:
By the auncient Law of the Romanes, if a woman had been kept in a mans house by the space of a yeare, he might claime her as his wifeHotomanus in comment. ad duode cim tabul.: And by that Law a man might lend his wife to his friend, for the procreating of childrenStrabo lib. 11. Plut. in Cat. Tertul. in apologet.; as Cato lent his wife for that purpose to Hortensius, which though Plutarch accompt fabulous: yet Appian reporteth it as trueAppian lib. 2. de bel. ciui., and Quintilian affirmeth the sameQuintil. lib. 2. c. 5.. Neither is it vnlikely that it was a custome practized of the Romanes: for this lending of wiues was permitted by the Lawes of Lycurgus: and as Plutarch reporteth, it was a Law established by Numa Plut. in comparat. Lyc. et Num.: Abrutish Law doubtles, and one of the maine errors of these great common weale men, who (as the Apostle saith) became vaine [Page 27] in their thoughtes, and their foolish heart was full of darkenesse and as they regarded not to acknowledge God, so God deliuered them vp vnto a reprobate mind to doe those things which are not conuenient: D. Paul. ad Roman. 1. v. 2 [...] & 28. Now that we haue shewed that consent is necessarie for mariage, it remaineth to bee declared how farre forth it hath beene accompted necessarie. When the Romane Empire was in her infancy and first rising, it seemeth that a verie slight consent would haue serued, as may appeare by these wordes of Suetonius, writing the life of Caligula: Mar. L. Cassio Longino, consulari collocatam abduxit, et in modum iustae vxoris propalam habuit. But of the Emperour Constantine furtiue and priuy mariages are vtterly condemned and abiudicated:l. vxor. 7. Cod. de repub. because it is against Christianitie, to which (the Lord therefore highly be praised) all the nations of the earth begin to open their eyes and giue their free consent. Such marriages as haue the publike testimony of the Church are greatly commended of Tertullian: Vnde sufficiam ad enarrandam foelicitatem eius matrimonij, quod ecclesia conciliat, & confirmat oblatio, & obsignatum Angeli renuntiant, pater rato habet. Tertullian lib. ad vxor. 2. And the Emperour Leo hath determined that the mariages of Christians shold be confirmed by the testimony of holy and ecclesiastical prayer, and that these marriages which are otherwise contracted should not be held for good, and Harmenopolus testifieth that by ecclesiasticall Canons it is prouided, That there should be no priuie [Page] mariages, and that no mariages should be celebrated out of the Church:Harmenop. lib. 4. c. 4. And by the common law as M. Fitzherbert saith, a woman married in a chamber shall not haue dower of her husbands lands:Fizh. N.B. 150. N. but he modestly saith, that it seemeth reasonable that shee should haue dower, M. Parkins peremptorily affirmeth, that the lawe in his time was directly to the contrarie, that the lawe was so in his time, I must take vpon M. Parkins credit: for I haue not read (to my remembraunce) any yeare booke which was written in his time or since, wherein that is recorded for law, as to that which M. Fitzherbert saith, that it seemeth reasonable, how could it seeme reasonable vnto him, vnlesse the mariage it selfe had seemed reasonable, & if he thought such a mariage to be good & lawfull, therein sauing reformation hee failed, for beside the authorities which immediatly before I haue cited, to proue that mariage must be celebrated in a publike place, and in publike maner, it appeareth, that in the Iewish common weale, that course was followed in the time of our sauiour, by part of a similitude which he vseth: Let your loines be girt about & your lights burning & ye your selues like vnto men that waite for their master when hee wil returne from the wedding, whereby it is manifest, that some testimony of friendes and neighbors is requisite to the celebration of mariage:Luk. c. 12. v. 35.36. and Pope Innocent the third reporteth, that this was no new guise, nor any popes inuention, but the custome of [Page 28] the ancient Christian Churches, that conuentiones matrimoniorum in ecclesia promulgentur. cap. 4. extr. de cland. desp. And this promulgation is in Lumbardie called Bannum, c. cum tua extra despons. in England the Banes, or asking in the Church: & by the custome of diuers common weales, it is called manasse, the giuing of hands:in c. cum tua. 6. qui matr. accus. poss. & so is the rule of Iustinian the Emperour, who saith, that if any diuinis tactis scripturis shall sweare vnto a woman that he will marrie her, this saith he is sufficient for the contracting of marriage, but yet there must bee a publike celebration of the marriage according to the rite & solemnitie vsed in Christian churches:Iustin. Nou. 74. §. 4. so then it is in some clearenes that consent principally maketh mariage, as the grounde of that strait societie, and the celebration is as the forme rising out of this materiall cause, which maketh it to bee knowne, and to bee publikely notified and ratified: for as to the age of the partie, who is to bee marryed, that hee shoulde bee plenis nubilis annis, or that hee should haue power of ingendring, vt iusto accedat robur amori, or that they may bee equall in degree, because dulce iugum paritas, these doe not make mariage, but cause it to bee a more conuenient mariage, but the consent that maketh mariage must be ouert and expresse: for though the parties will, doe appeare in a secret will, and which may onely be proued by circumstances, yet consent is onely verified in an expresse & vnfolded wil: wherefore D.Baldus saith wel, that a neutrall consent, which [Page] is not demonstrated by word, nor by deed, is not correspondent to the actes of men, neyther doth it make them essentially perfect. Now if any man doubt whether the consent of the parties onely do knit the marriage, or the fathers consent be necessarie, as to that point the ciuill lawe, which in this matter all nations follow for the reasonablenesse of it, standeth thus. Eorum qui in potestate patris sunt sine voluntate eius matrimonia iure non contrahuntur, sed contracta non soluuntur: contemplatio enim publicae vtilitatis (that is to fill the Citie or common weale with people) priuatorum commodis praefertur: Pant. l. 2. senten. And againe, Si forte pater concordans matrimonium, that is, a fit mariage) & forte liberis subnixum (that is, confirmed by procreation of children) velit dissoluere, et certo iure patriae potestatis turbare, sic erit res tractanda, vt patri persuadeatur, ne acerbe patriam potestatem exerceat. lib. 1. de lib. exh.
The sixth Chapter.
That by the practise of all nations Democracie hath beene bette downe, and Monarchie
established.
DEmocracie I haue alwaies taken contrarie to the auncient diuision of Monarchie, aristocracie, &c. to be no forme of a common weale, if it bee properly taken for the equall sway of the people without any [Page 29] superioritie: for the heele can not stand in place of the head, vnlesse the bodie be destroyed and the anatomie monstrous: it is against the nature of the people to beare rule: for they are as vnfitte for regiment, as a mad man to giue counsaile, which Anacharsis well perceiuing did laugh at the assemblies and counsels of the Athenians, because they did commit the summe of their affaires to the peoples furie: and Xenophon writeth thus of the Athenian, that is, his owne common weale: I can not allowe the state of the Athenians because they embrace that forme of common weale, in which wicked and lewde persons doe more flourish then good men and innocent:Xenoph. in lib. de repub. Atheni. which commonweale notwithstanding Bodinus calleth vntruely omnium popularium laudatissimam, Plutarch as vntruely, omnium minime vituperandam, but if it be true that they say, in how miserable estate are other popular common weales, all which (the Romane commonweale onely excepted) are farre short of the Athenian estate: and Machiauel did abuse his owne pen, and the patience of others, in one place preferring Democracy before al other kinds of gouernment,Machia. in obseru. in Liui. yet in another place, shewing how he wold haue Italie restored to the ancient glorie and excellencie, he sheweth that that can not be done but by a monarchie, and onely by the Popes monarchie,Machiauel. in lib. de princip. c. 9. in this point accomplishing the part rather of a magician, then a mathematicke, wishing for that [Page] which the deuill would desirously effect, but imagining that which in truth can neuer be: yet again he departeth from this opinion, when hee preferreth the Venetian common-weale before al commonweales.Machiau. in Liui. Plato was wont to call Democracy, Nundinas populares, the peoples fayre: wherein euery thing was sold for money. Aristotle disagreeing from him in many things, yet he agreeth with him in this, vtterly condemning Democracie, vsing not onely strong reasons of his owne, but Homers authority for it [...], and Maximus Tyrius a worthy man in his time,Maxim. Tyri. orat. 3. that hee might conuince Democracie to be a most pernicious euil, bringeth for proofe herof, the examples of the Athenians, the Carthaginians, the Siracusans, and the Ephesians: & if a man should seriously respect the brittle dependance of things vpō the peoples braines, he shall easily and clearely perceiue, that whosoeuer shal but ground his owne estate, much lesse the estate of the cōmon weale vpon the peoples fantasies, domū ex luto facit, & findeth nothing more certain then vncertain accidents, & if a man should compare honour to vulgar reputation, he might as well compare a course packthreed to the fine twist of the silkeworme, & a garland of iuie to a crown of gold: to be straight way an honest mā, because the multitude commend him, is no more necessarie then that a man should be euill, because few are like vnto him: I wold rather like a cōtrary argumēt: he is liked of the most, therfore he is not [Page 30] to be followed of the best: who was more fauoured by the gretest part of the Troians thē the strumpet Helena? she that was recouered & recaried forsooth for her excellent beautie by so many thousand shippes, by so many valiant & vnconquered captains, after the downfal of a goodly citie, after the flames of so many wars, after so many spoiles, and homicides. The people did wonder at that paragon, as hauing excellent felicitie to be caried home in so glorious a triumph, & to be transported from Troy to Greece, from a floud of hony to a sea of nectar, being the blazing starre to that famous warre which the brauest soldiers doe at this day admire: At Capis & quorum melior sententia menti, what thought they of this popular miracle? what thought Eneas? that she was Troiae & patriae communis erinnis: what thought Antenor, a wise, iust, and vertuous nobleman, Antenor censet belli praecidere causam. But if euery thing that the common people approueth be commendable, what is then discommendable? euen that which deserueth most commendation, namely vertue it selfe. When one tolde Antisthenes that the most part liked him, hee demaunded of him incontinent for what vice they liked him, as if it were impossible that vertue should please the common people. Anacharsis thought it verie inconuenient that artificers should contend in cunning, and these that had no arte should bee iudges of their cunning: [Page] by the same reason they that are not vertuous, can not iudge of them that be vertuous, & if they can not iudge of them, how can they with conscience praise them: and if not them, how can they with safe conscience praise others. Is it not therefore a madnes to gape for their suffrage, which are incompetent iudges, and to care for their controlment which are vnsensible censors. Phocion liked nothing that the common people liked. Seneca thinketh that none can please the people to whom vertue is pleasant.Senec. epist. 29. The multitude haue this prouerbe verie rife in their mouthes (too many to bee good) and yet in this glasse they can not see themselues, as they likewise said (omnia plena stultorum) forgetting themselues.
This beast of many heades hath a threeforked tongue: with the one part it tickleth the eares of them whom they flatter: with the other it licketh their wounds: with the last, and sharpest it pricketh their hearts: with the first they flatter them, lulling their sences with faire wordes, and with soft speeches sliding into the bosome by forgeries and fables: with the other they licke their woundes, excusing their crimes, extenuating their faultes, cooling and calming their rage, that are incensed against them: with the third they pricke: for let the popular idoll be once crushed, none will sooner tread vpon him then the people; & if perhaps they weepe for him in this especially is [Page 31] the prouerbe verified, lachryma nihil citiùs arescit: They deale with their idols as the diuell dealeth with witches: when they are in prison they leaue them: Nay, for the most part none are more proan and readie to accuse when time serueth, then these adulatorious excusers, Quo teneam vultum mutantem protea nodo? The wayward people may be iustly compared to a bundell of thornes, which will beare vp a great man, but will pricke him if he leane or lie vpon it: They are like the windes, which Neptune trussed vp, and deliuered in a bagge to Vlisses Ouid. in Metamorph., beeing sure as long as the mouth of the bagge is shut, but if there be neuer so little a chinke or riffe, they quicklie glaunce out, one raunging one way, an other some other way, like to Samsons foxes with fire-brandes at their tayles. What a frenzie is it therfore for any to plant his credit vpon such restles braines: as if a man should endeuour to make the sea solid, to make mountaines plaine, to build a castle in the aire, and to measure a flies foote: for these blind puppies, follies naturall children, melius, peius, profit, obsit, nihil vident nisi quod lubet Terenti.. But who list to know the maners and practizes of the people more fully, let him bend the right eye of his mind to historicall contemplation, then he may see Verres accused and conuicted of diuers villanies, of notable spoyles and robberies, of a thousand excessiue briberies at the least, & false iudgements in number more: yet by plebiscite or popular [Page] determination to be quitted and freed, but by the sentence of the same Iudges, Rutilius, Metellus, Coriolanus, Scipio the elder, Affrican, and Cicero, men of rare vertues, are confined and banished out of Rome: innocent Hermodorus is thrust out of Ephesus, Aristides chased out of Athens, Themistocles dieth in exile, Socrates endeth his life in prison: so vniust a measure to good deserts is the fantasie of the multitude. Phocion a mirror of integritie, the glorie of his time, and the honour of Athens, who was fortie and fiue times chosen by the earnest desire of the people to be their chiefe Captaine, which he administred to the great good of that estate: yet in the end they condemned him to deathPlut. in Phoci.. But Antiphon that vicious varlet, and steigne of Athens, was by the people absolued and acquired, as altogether innocent: which absolution Demosthenes not brooking, did so hotely pursue the matter, that he caused him afterward to be condemned, and put to death by the decree of the Areopagites Plut. in Demosth.. And alas, what praise can there be giuen to the people for any action commenced and caried by them? did Rome florish by popular effectes? no, Salust saith that the credit therof belonged to some fewe excellent gouernorsSalust in princip. Catil.. Liuie saith, Sub vmbra Scipionis vrbem terrarum dominam latere, nutus eius pro decretis patrum, pro populi iussis este: Vnder the shadow of Scipio the Citie, the Ladie of the world did cabbon, his beckes were the decrees of the Senate, the [Page 32] commaundes of the people Liui. lib. 30.. So did the Thebane state a long time florish, but it was by the wisedome of Pelopidas, Epamondas, and other speciall men. So the Athenians hauing lost their prudent gouernor Pericles, they lost the true and essentiall forme of their Citie, which being as a ship in the middest of the sea, without mast and rudder, whilest one casteth the anchor, another spreadeth the sayle, one keepeth the hauen, an other mooueth the sterne, all goeth sodainlie to wrackePolyb. lib. 6.. Foolish were the Argentinians, Lindouians, they of Seene, they of Genoway, they of Florence, who seeking to settle popular gouernement, did pluck vp from the roote their auncient nobilitie, and hauing made three degrees of Citizens: some great, some meane, some vulgar; They of the two last rankes did vtterlie subuert the gouernement of the first, and then contending amongest themselues, did burne in such furie one against an other, that streames of bloud did run in the streetes, and the state being now couched, and deuolued to the dregges of the people, they neuer left of killing and slaughtering, till by the aduise of the Pope, and the neighbour-cities, they had wholie submitted themselues to a straunge gouernourAnton in. et Machiauel. in hist Flor.. Thus in the end they came to a Monarchicall estate. And these Nations which haue no resemblance of a citie in them, do create a Duke or Capitaine, who may gouerne the rest, and prescribe Law vnto them: as in Guzula a [Page] region of Affrike, and in the borders of the kingdome of Fez: They that dwell neare the mountaine of Maguano, if they perceiue any straunger passing by, who excelleth in wisedome, they doe entreat him, or enforce him if entreatie will not serue, to deuise Lawes for themLeo Afer. in lib. de reb. Affric.. The Romanes in all their daungerous accidents did acknowledge the gouernement of one to be the best, and therefore chose a Dictator, whose gouernement Appian pretilie calleth regnum negatiuum, either because it denied a regall power onely in shew, or because he had authoritie to denie that which the rest had affirmed. Trepidi patres (saith Liuie) ad summum auxilium decurrunt, dictatorem dici placuit Liui. lib. 6.: And againe he saith, that when Hanniball did molest Italy: ad dictatorem dicendum remedium iamdiu desideratum ciuitas confugit Liui. lib. 22., and such was the reuerence of the Dictator, that, as the same Liuy saith, Dictatoris edictum pro numine semper obseruatum Liui. lib. 6.. And Appius being Consull, giueth aduise to create a Dictator for the brideling of the rage of the people, affirming minas esse consulum, non imperium, vbi ad eos qui vnà peccauerunt prouocare liceat, agedum Dictatorem à quo prouocatio non est, creemus (Liui. lib. 2.. But Monarchie hath been imbraced by the people of all Nations, Democracie reiected: as namely, by the Medes, Persians, Aegyptians, Parthians, Macedonians, Arabians Indians, Aethiopians, Scythians, Tartarians, Turkes, Danes, French, Moscouites, Polonians, Britanes, [Page 33] Affricanes, and Perusians. The name of a king saith Salust, is primum in terris. By scripture it appeareth, that kings were ordeined of God: for it is said in Deuteronomie: Thou shalt make him king ouer thee, whom the Lord thy God shall chuse: one from among thy brethren shalt thou make King ouer thee, and thou maiest not set a straunger ouer thee, which is not of thy brethren Deuteron. 17. vers. 15.. And it is said of Moses: He was in Israel as King when the heades of the people, and tribes of Israel were gathered together Deuteronom. 3 [...]. ver. 5.. And aftere the returne of the Hebrewes from Babylon, where they were captiues, to their auncient countrie of Palestine, they did obey the kinges of Persia, Syria, or Aegypt, till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria, and transferred the high-pristhood and kingdome into his owne familie. And as all Nations haue imbraced Monarchie, so the wisest men in all nations haue approoued it: As Homer Homer. lib. Iliad. 1., Herodotus Herodot. lib. 5., Plato Plat. in politic., Aristotle Lib. vlt. Metaphisic., Xenophon Xenoph. in cyrop., Plutarch, Philo Plut. in lib. de creati. Regis., Apollonius Thyanaeus Philostratus., S. Ierom, S. Cyprian, Maximus Tyrius Maxim. Tyri. in orat., and Bartolus the deepe CiuilianBartol. in tractat. de Regim. ciuit. nu. 10., Lucan Luca. lib. 1. et 2., Aquinas Aquinas in lib. de princip., Erasmus Erasm. in lib. de instit. princip., Tacitus, S. Augustin D. Augustin. lib. 5. de ciuit. dei. c. 1., and S. Ambrose whose particular and plenarie assertions I omit, because I hasten now to an other matter which hath not been so much discoursed of as this.
The seuenth Chapter.
Of the Law and Iustice of Armes, of Leagues, of Embassages, and denouncing of Warre,
of Truce, of Safeconduct, Captiues, Hostages, Stratagems, and Conquestes, according
to the Law of Nations.
IN purposing to speake at large of the Law of Armes, and the members and parcels thereof, I doe respect the good of the Ciuilian, who in these matters is verie often employed: And of the professors of common Law, who shall not doe amisse, in considering of these thinges that shall be deliuered, for the more full opening and explaning of the Statute of 13. Rich. 2. cap. 2. which is thus: To the Constable and Marshall it belongeth to haue conusans and knowledge of contractes, touching feates of Armes, and of warre; out of the Realme, and also of such thinges as touch Armes or Warre within the Realme, which can not be determined, nor discussed by the Common Law &c. For the better entring into this discourse, I thinke it best to begin with the definition of Warre, which may be thus: Warre is a iust contention of men armed for a publike cause, for though manie thinges be done in warre without weapons, yet mere is no warre without the furniture [Page 34] of weapons, and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes, and which may not be referred to the same: And it must be a publike contention, because warre is not the quarrelling fight and enmitie of priuate men: for warre is therefore called Duellum, because it is the contention of two equall personsVarr. lib. 6. de lingu. lati.: And therefore the Syrians (as I am infourmed) doe thus translate the wordes of our Sauiour: What king goeth to warre against an other king Luc. 14., in this forme: What king goeth to warre against his fellow king: that is an other king equall vnto him: Therefore Lipsius his definition is to bee disliked, in that he defineth, Warre to bee force and armes against a straunge Prince or people Lipsi. in polit.: for by that hee maketh the outrage and violence of priuate men and pyrates to bee warre: for warre is a iust contention, and by this woord (iust) excursions and depraedations are excluded: Wherefore Scipio did accompt them robbers and ringleaders to theefes, which did deale by such kind of spoyle and pillageLiui. lib. 28.40.41. Flor. 2.. And Liuie censureth the Ligurians rather to be robbers then iust enemies, because beeing poore at home, they did inuade the dominions of others, and were more easilie ouercome then founde out: Neither did they obserue the Law of Armes, because they did slaie captiues, and cruellie dismember them. And Iouius speaking of the truce betwixt [Page] the Turkes and Hungarians saith, that by an auncient custome, they did make small skirmishes and extraordinarie incursions vpon the borders, if they were not resisted by the preparation of Ordinance planted against their walles Ioui. lib. 36.. Warre was first brought in by necessiitie, for in that decisions of Courtes of Law, and the determining of controuersies by their rules, could not be betwixt two straunge Princes of aequall power, vnlesse they should willinglie agree to such an order, because they haue no superior nor ordinarie Iudge, but are supreme, and publike persons: therefore the iudgement of armes is necessarie because such warre (saith Demosthenes) is against them which can not bee brideled by LawDemosth. de Cherson.; But processe of suit is onelie for them which are subiect: For as there be two kindes of contention; one by triall of Law; the other by triall of Armes: so we may not vse the later, if we may haue helpe by the former. This was the cause that the Romanes were wont to mooue them, with whom they dealt, that their quarrels might be ended by mutuall debating, and course of iudgement, rather then by blowes, and weapons. And so the Ardeates, and Aricines, the Neapolitanes, and Nolanes did referre their controuersies to the iudgement of the Romanes Liui. 3. Dionys. vit. Cicer. 1. de offic.. So the Samnites did prouoke the Romanes to debate their cōmon cause betwixt their common friendesLiui. lib. 8.. And Archidamus said, that it was not lawfull to wage battaile against them [Page 35] which did offer themselues to bee ordered by peaceable iudgement:Thucid. l. 1. and Cyrus who is proposed as a patterne of an excellent prince, by Xenophon, a principall Philosopher and very wise Gouernor maketh the king of the Indians an Vmpier betwixt himselfe, and the Monarch of Assiria: Xenoph. Cyropaed. 2. therfore they which flie from this peaceable kind of triall, which is nothing els but a disseptation of of words and reasons do digresse from iustice, humanity, & commendable examples: but it is good to bee prouided for armes, when the parties will not tollerate indifferent hearing of the cause, which the poets seeme to haue signified when they feygned Chiron the Centaure, whose vpper part did resemble a man, the inferior part a horse, to be tutor to Achilles, Statius Achilles lib. 1. that they might giue vs to vnderstand, that when a controuersie could not be moderated by reason, the strength of the horse should be vsed: for against them, which will not be ruled by equitie and reason, force is not vniust. But (as Scipio said a gouernor in warr ought like a Phisitian to vse iron and launcing in the last place;Plut. in apophth. And as to the bearing of armes, it is certaine & manifest, that priuate men, and people subiect, and inferiour princes, haue no such necessitie to make triall by battaile, because they may pursue their right by other lawfull meanes in some court of iustice: neither haue priuate men any authority to assemble a multitude. It is Pl [...]es law, Si quis prinatim sine publico scitu pacem b [...]mue fecerit capital [Page] esto: Plut. lib. vlt. de legi. If any man priuately without publike knowledge doe make warre or peace let it be capitall vnto him: for it belongeth to the power of the supreme gouernor to make warre or peace: Deci. cong. 20. and therefore by the law of Iulius it was high treason for any to leuie armes without the consent or command of the prince,l. 3. ad l. Iu. ma. & the Romanes did thinke it conuenient to yeeld such a man into the hands of them whom hee had prouoked by weapons:Appian. & Plut. in cat. mi. and vppon such occasion they demanded the person of Annibal: and so the Philistines vpon like cause demaunded Sampson, to whome the Iewes yeelded him;Iudic. 15. and Cato thought that the army was to be recalled, & Caesar to bee yeelded vp into the enemies power, because he maintained warre in Fraunce without the warrant of the people, in whose handes the commandement of warre and peace was:Liui. lib. 4. 16. 18. 19. but without vrgent cause and lawfull authoritie there should be no taking of armes or raysing of multitude, & therfore it is well prouided by the statutes of the two soueraigne Queenes & sisters, Marie & Elizabeth of England: That no man without authoritie, by ringing of any bell, or by sounding of any drumme, trumpet or horne, or any other instrument, by the fiering of any beacon, or any other instrument, &c. with force and armes shall alter any lawes or statutes. 1. Mari. parliam. 1. c. 12. 1. Eliz. c. 7. And in ancient times kings had the supremacie ouer other, of commaunding of commencing war, and of m [...]tering men, as appeareth by the sacred historie [...]et sometime vpon a great or necessarie cause,1. Reg. cap. 8 as if there be daunger in delay, or [Page 36] the soueraigne prince be absent, warre may be vndertaken without the commaundement of the prince, if it be vpō occasion of iust defence, which by the law of nature is graunted to euery one, and there is an excellent example to this purpose in the Romane history of L. Pinarius, who was the captain of a garrison at Enna in Sicely, who whē he did foresee the reuolt & defection of the citizens of Enna to the Carthaginians, and hee could not conueniently send ambassadors to the Consul Marcellus, though he were not far frō thence, suddenly he did kil all the citizens, by which act Enna was still reteigned for the Romanes, & Marcellus did not disallow the deed:Liui. lib. 24. therefore Cicero commendeth the enterprise of Octauius Caesar, who not expecting the decree of the Senate, did of his own head vndertake war against Antonius: for the time of cōsultation was not yet come, but if he had thē omitted the time of battel, he did well foresee that the cōmon weale being oppressed, nothing could bee decreed by Senate:Cice. Philip. pic. 8. and the Senate did after allow by publike authority the war vndertakē by Octauius of his owne priuate aduise:Cic. Philip. 5. so Scipio Nasica did deserue exceeding cōmendation, who did voluntarily offer himself a captain to all good Romans for the oppressing of Ti. Gracchus, together with his treacherous confederates.Valeri. Maxi. lib. 3. c. 1 Appi. de bel. ciui. lib. 1. For it is necessarie (as Cicero sayth) in such perturbation and tumult rather to obey times then customes: for in peace wee must follow custome, in warre profite: but nowe as to the iustice of warres,lib. 2. de rep c. 5. [Page] if bellum haue his denomination a belluis, as some doe imagine, it should seeme to be vndecent and discrepant from the nature of man. Heare of that matter Seneca: Wee punish homicides and particular murders, why doe wee not punish warres and the glorious sinne of people slaughtered. Couetousnes & crueltie know no measure: By Senate-counsell and popular assent bloody actions are executed and publikely commaunded, which are priuately forbidden. Senec. epist. 96. Men, a mild kind of creature, are not ashamed to boast of bloudshed, when as dumbe and reasonlesse creatures haue peace amongst themselues.Cuia. Critic. not. 1. &c. 2. de cla. desp. Lipsi. 2. mili. Rom. 12. And at the first sight this is a great argument, that if dumb creatures, which can not debate the causes of their anger haue peace amongst themselues, how much more ought men to doe the like, vnlesse they will bemore beasts then the beasts themselues. Cyprian hath the like saying: Homecide when particular men doe it is accompted a fault: when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon. And fitly to the same purpose, though not purposely for the same: Lawes haue agreed to sinnes, and that is admitted to bee lawfully which is publike: Cypr. 2. ep. 2 And Seneca againe, Small theftes are punished, great are caried in triumph. Senec. ep. 88 Tertullian saith, that wrong is proper to warre, and as farre as his authoritie stretcheth, prohibiteth battaile to Christians:Tertullia. adu. Iud. but sithence the time of Tertullian, these opinions haue beene confuted of Diuines, [Page 37] Ciuilians, and Philosophers: for warre is according to lawe though many mischeefes do steigne it: for there doeth ensue good of it when rebels are reduced to obedience, and when peace is accorded: and that whose end is good, is also good it selfe: for the end of war is peace, to which and to common equitie without bloudshed, and these iniuries of warre men do seldome attain. Neither doth Seneca disalow all warres: for he praiseth the warres of Hercules: Senec. lib. 1. de benefi. as to Tertullians saying, hee did speak it vpon the consideration of such things which are vniust, and are often done in warre, not impeaching that which is vsually done of them that be iust: to Lactantius & Cyprian answere may be made after the same sort. Notwithstanding I would not haue this poyson of war admitted into any commonweale, vnlesse it be to expell an other poison: nor this furie to be let loose, vnlesse it bee to coole the furie of others, or vpon like necessitie. But now let vs sift the precedent definition of warre more narrowly, and consider how warre may bee iustly maintained on both sides: which both Diuines & CiuiliansConua. reg. peccat. §. 18. Soto. 5. de iust. q. 1. 7. view. relect. haue thus expounded, saying that it may bee truely and verily iust on the one side, & on the other by ignorance, as by the voice of God the Iewes did iustly moue warre against the Cananites, and the Cananites did iustly resist the Iewes, not knowing God his will and defending themselues: and therefore it was well said of Pope Pius the second to the embassadors [Page] of the king of Hungarie, who did speake against the Emperour, that he thought the king of Hungarie would not depart from right and reason, and hee knew likewise that the Emperour was a louer of iustice, howsoeuer nowe they did discent by warre, and that neither of them thought that hee had an vniust cause of warre.Com. Pij. 2. lib. 3. Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey: There was some obscuritie, there was variance betwixt two excellent Captaines: many doubted what was the best, many what was expedient for them, many what was decent, some, what was lawfull: Cice. pro. Marcel. but the Ciuil law doth attribute the rightes of warre vnto both parties, the things that be possessed by warre it giueth to the possessor: captiues it maketh bondseruants to both. Now it is conuenient to discend into a more particular consideration of the causes of warre, which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches. To assault thy neighbours by warre (saith Augustine) and to vexe people that doe thee no hurt through an ambitious desire, what is it els but a great robberie. D. August. in. 4. de ciuitat. Dei. Therefore the saying of the Barbarian was as barbarous as himselfe: That is most iust in prosperous fortune, which is most forcible, and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse. But Attila which did not attend any cause or occasion of warre, did therefore worthely deserue [Page 38] the hatred of all men as being an enemie to all men:Ior. de or. but the Turkes do otherwise,Tacit. Anali. 15. who most commonly pretend a cause of warfare: and therfore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes, because it is not (as one saith) the custome of the Ottomans vpon a rage or heate of mind to enterprise warre.Natal. com. lib. 1. It is a beastly part hauing receiued no iniurie, to commit slaughters of men, and depopulations of cities and countries: therefore princes many times pretende causes of war, where in truth there is no cause. And Moyses sought for a good cause of quarrelling with the Emorites, though hee had a cause absolutely iust, namely the commandement of God. For when by vertue of the same commandement he was to make warre against the Emorites, & vtterly to destroy them, hee sent messengers to their king which might signifie thus much: I will passe by thy land, we will not turne into thy field nor vineyard, nor drinke the water of thy well, wee will keepe the right path vntill we be past thy borders. Therefore let there be a cause of warre, and let it be no small cause: for parum a nihilo vix distat. And as Propertius saith:
Iust cause of warre is the defence of our countrie, our selues, our friends, our fellowes, & goods. A defensiue warre is grounded vpon the lawe of Nature, therefore C. Pontius the Captaine of the Samnites said well, That warre was iust vnto them, to whom it was necessarie, and that their armes are honest which haue no hope of safetie but in weapons. Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully, and by force taken from vs by our enemies:c. iustum. q. 2 August. q. 10. sup. Iosu. lib. 2. or that the authors of the iniurie, at least, may be yeelded vp into our hands to bee punished, if they did it not by publike decree, but by priuate malice: therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule, who did go about to vsurpe the kingdome of Israel, which God by Samuel the Prophet had giuen vnto Dauid: 2. Reg. c. 2. and Romulus did therefore fight against the Sabines, because their Dictator Cluitius would not restore the things taken from the Romanes by violence, nor yeelde vp into his handes them that did wronge.Dionis. Halicarn. lib. 3. And the reuenge of an iniurie most despightfully done, is likewise a good cause of warre: Therefore Dauid did iustly wage battell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors:2. Regu. c. 20 & duob. sequenti. and that prince hath iust cause of warre, who pursueth by armes rebelles and such as swarue from obedience:c. auctor. it. vs. quaesti. 6. cap. scir. 103. quaest. 8. for great iniury is done to God, and to the prince, when his subiectes will [Page 39] not be ordered, nor ruled by his authoritie: for there is no power but of God, and he that resisteth power as S. Paul saith, resisteth the ordinance of GodEp. ad Roman. c. 13., and the iniurie done to a soueraigne Magistrate, is done vnto God: Who said vnto Samuell, of whom the people craued an other king: They haue not cast off thee, but me, that I may not reigne ouer them 1. Reg. c. 8.. And Dauid did wage battaile against Seba the sonne of Bochri, who solicited the people to reuolt from Dauid to him2. Reg. c. 20.. But because a Rebell may not properlie be called an enemie, when any such armes are borne against rebels, it is not to be called a warre, but an exercise of princelie iurisdiction, vpon traiterous and disloiall personsInnocent. in c. olim 1. de resti. sp. et l., which was well declared by Pompey, in iustifying the warre mainteined by the Senate against Caesar, and his complicesLucan. lib. 2.:
And this is confirmed by Ciceroes opinion, who did not think it conuenient to send Embassadors to Anthonie, not to intreat him by wordes, but that it were meete to enforce him by armes to raise his siege from Mutina: for he said that they [...]ad not now to deale with Anniball an enemie to their common weale, but with a rebellious CitizenCicer. philipp. 5.. And the said Cicero writeth also to Plancus, that peace ought not to be concluded with the Anthonians, who had besieged Brutus at Mutina, calling them shamefull theefes, which either ought to [Page] craue peace, laying aside their Armour, or if they will persist in their furie to obteine it by fight, not by compositionCicer. lib. 10. epistol. episto. 6.: Wherefore it was vnaduisedly done by the late Earle of Essex, in admitting anie article of composition with Tyrone, and namelie for the restitution of such landes and possessions, to which the Rebels might pretende right before the rebellion: for so vpon euery iudgement giuen against them, they would presentlie haue retourned to weapons. And this slipperie reuolution of titles, might perhappes haue stirred them to Armes, who were in peaceable possession of these lands: so that this would haue been nothing else, but a cutting off of one of the heads of Hydra, that an other might growe: for surelie there will alwayes bee some cause and occasion of tumult, if men may bringe into question, antiqua et antiquata. The Romanes would graunt nothinge at all to Rebelles, beecause theyr course was to bee sterne to the proude, and rebels in that they are rebels are proude in the highest degree: Neither ought anie of their kinred to regarde them, but to bee of Seneca his resolution: Si arma quis patriae meae inferret, quidquid de me meruerat perdidit, & referre illi gratiam scelus haberetur Senec. lib. vlt. de beni. fi.. And exccellent is the saying of Fredericke the second to the Fauentines: Qui dum potest delinquit, dignus est vt [Page 40] quantum potest puniatur Sigoni. lib. 18. de re. Itali.. But to returne to the causes of Warre; There be some causes of making warre, which wee referre to God, as commaunding warre; as when the Iewes did referre to God the cause of the warre mooued against the Cananites Deut. 34.4. Exod. 23.29. Num. 33.51. Deut. 20.16.17.18.. And God denounceth irreconciliable warre against the Amalekites, and he chargeth his people with perpetuall enmitie against themExod. 17.. That kinde of Warre (saith Augustine is without all doubt iust, which God doth commaunde, vvith whom there is no iniquitie, and vvho knoweth vvhat ought to bee done to euerie man, in vvhich action the armie is not so much to bee accompted the authour of vvarre, as the minister thereof August. in Ios. q. 10.. And so the Prophet Esaie said, that it was not necessarie for king Ezechias to aunsweare anie thinge to the Embassadours of the Philistines of the Israelites right in Palestine, but onelie this, That God vvould haue that land to bee his peoples Esai. 15.: Naie, the verie Heathen as the Aethiopians did vndertake euerie warre by the Oracle of Iupiter Herodot. lib. 2.. And the Spartanes by lottes and miracles, were mooued to make warre and to fight with the Argiues Xenoph. 4. Graec.. And Aeneas commeth into Italie to maintaine warre by destinies, and OraclesNat. com. 6. 14.. And the Turkes doe alwaies pretende this cause of their warre, that it is the commaundement of Mahomet, that they should persecute men of diuerse Religion: [Page] therefore they and the Persians, the one seeming haereticall to the other, are in continuall warre. And the late king of Spaine Phillip, did pretende this defence of his warres (as some testifie) that they were against Infidels, and HeretikesFerrat. de inimic. §. 7. et 17.. Yet a Doctor of his owne sect Baltasar Ayala thinketh that warre is not to be leuied against Infidels, because they be Infidels, although the Emperor or Pope should commaund it: for their infidelitie doth not depriue them of these demesnes,Baltas. Ayal. lib. 1. de iur. bel. c. 2. which they haue by the Law of Nations: for the earth was not giuen to the faithfull onelie, but to euery reasonable creature: for the earth is the Lordes, and the fulnes thereof, the round world and whosoeuer dwell thereinGenes. c. 1. Exod. 9.29. Psal. 24.1.. And the Lord maketh his Sunne to shine both vpon the good and the badMath. 5. in fin. et c. 6. in princip., and though Nabuchadnezer were an Infidell, yet the Lord did giue vnto him kingdome and principalitieIerem. 27.6.. But in grounding warre vpon diuine causes, it is good to be certaine of God his will, and not to credit the aequiuocall prophecies and fantasies of men light-headed and possest of fierie spirits, fit to kindle tumults and vprores: for the warrants of such men are nothing els, but the wracke of a number of men. Such was the oracle of that Scot vnto his king, consulting with him of warre against England, Ibis, redibis, nunquam in bello moriturus, which fell out afterward to be true, being thus distinguished: Ibis, redibis nunquam in bello moriturus. Such was the warrant of [Page 41] the Eremit, moouing the imperiall armie to fight against the Ligurians Carol. Sigon in vit. Andr. Anti.. Such were the fond prophecies of Ball, or according to some Chronicles Wall a priest, who stirred vp a rebellious armie in the time of king Richard the second I. Stow in Rich. 2.. But from warres which displaie the banner, I will passe to leagues which wrap it vp: 2. As warres haue been by the Law of Nations mainteined, so leagues haue been concluded: for as Cicero saith: Ita bellum suscipiatur vt nihil aliud quàm pax quaesita videatur Cicer. 1. offic.. Such was the opinion of S. Augustine, as appeareth by the Canon Law: Pacem habere debet voluntas, bellum necessitas: non enim pax quaeritur, vt bellum excitetur, sed bellum geritur vt pax acquiratur C. 3. 23. q. 1.. And that is expedient for the Conqueror, according to the saying of Euripides: Pacem reduci velle victoria expedit, victo necesse est. But the Conqueror ought to be of that power, that he may be able to make perpetuall peace: for it is one of the naturall properties of peace to be perpetuall: For such was the forme of peace, which the Romanes concluded: Romanis & Latinorum populis pax esto, dum coelum et terra stationem eandem obtinent Dionys. Halicarnas. lib 6.. And so the Romane Emperour, and the Persian king did establish peace sine termino Procop. 1. lib. de bel. Pers., in concluding peace, publike profit must be especially regarded; which Hanniball therefore tearmed vinculum maximum Liui. 36.: and before him Demosthenes tearmed it soDemosth. ad Ep. Phi.. And sometime priuate profite is respected, [Page] when it is a mean or waie to publike profite: Wherefore Duaren saith pleasantly and fitlie: We see verie often, that as of a comedie, so of a warre, the finall conclusion is a mariage Duar. c. 3. de rit. nup.: But it is good to make peace, so that there be no feare of future tumult, and vnquietnes: Therefore Lentulus his counsaile was good against the Carthaginians: Quoniam perfidiam non possumus tollere, ante omnia debilitemus potentiam Appia. in bel. punic.. And Cato of this matter speaketh to the Spaniardes: Id ne fiat vno modo caueri potest, si effectum erit ne possitis rebellare Liui. 34.. And Iphicrates doth well aunswere the Lacedaemonians, promising all faithfulnes, and all possible securitie, that he could not rest vpon anie other faith, or other securitie then this, that it should bee apparent vnto him, that they could not doe anie hurt, though they would. The reason of this sure and warie dealing with enemies, Saint Ierom wittilie sheweth: Quis vnquam mortalium iuxta viperam securos somnos capit, quae etsi non percutiat, certè sollicitat: Securius igitur est perire non posse, quàm iuxta periculum non perijsse Hieron. ep. 47.: Who did euer rest quietly, sleeping neare to a Viper, which though shee doe not stinge, yet shee doth vexe? It is therefore more secure to be able to auoide danger, then not to haue perished, where there is hazard of perishing. The effects of peace concluded are diuerse, for either weapons are laide aside, or the parties agree vpon [Page 42] condition, or the fight receiueth some restreints, or limitations: for when both parties are wearie, both of paines and of expence, this is rather an ending of warre, then a concluding of peace; as Tacitus saith in the like case: Bellum magis desierat quàm pax caeperat Tac. 4. annal.. And the like matter Cicero, in the like sort censureth: Summum otium sed senescentis magis ciuitatis quàm quiescentis Cic. ep. ad Qu. fr. lib. 2. ep. 14.: Wherefore it is good to make and ratifie perseueraunce of peace, beecause the reliques of the disease after the crisis doe manie times worke the ruyne and subuersion of our health. And according to the rule of Phisicke: The ashes of putrified bodyes will soone inflame the humours Hippocr. 6. epid. 2. et Merc. ad 2. de mor.: And therefore Tullus that artificiall warriour, in articulating peace with the Albanes, putteth them in minde, that they ought not so much to settle present peace, as to prouide for future agreementsDionys. 3.. And worthelie doth Isocrates reprooue the Graecians, because they did not compounde, but delaie enmities, vntill such time as one of them might destroie an otherIsoc. in panegyr.. And excellent is that saying of Cicero: Pax est non in armis positis, at in abiecto omni armorum metu Cic. 10. lib. epist. Iam. epist. 6.. But to speake some what of the diuersities of making peace, if this clause bee comprehended in the Articles, That one of the parties should preserue the Maiestie and aucthoritie of the other with all kindnes and faithfulnes. Doctor Baldus [Page] tearmeth this simplicem adhaerentiam Bal. 5. cons. 106., whereby (as Romanus expoundeth it) the weaker part doth adhere to the mightier: non vt subditi fiunt, sed vt defendantur Rom. cons. 417.. This adherence is lesse then protection: and he that is an herent, or vnder protection, is not presentlie vnder iurisdiction, but is onelie defensible from iniuries and violence, and that by souldiers and armour: Wherefore I wonder at Alciat, when hee saith, Faederati Latine loquentibus subditi sunt, non sotij Alcia. 7. cons. 13., aut adhaerentes. Neither is it any subiection, though they giue somewhat in signe of superioritieCastal. de imp. q. 109.. Neither were the Carthaginians and Macedonians subiect to the Romanes, though they did paie vnto them a yearely tribute. But if a League be once contracted, it bindeth verie strongelie and effectuallie; and that certaine ministeries or dutifull respectes were by reason of such Leagues due and demaundable, may euidentlie appeare by the League contracted betwixt the Romanes and the Lacedaemonians, wherein it was expressed, that they should liue according to their owne Lawes, and should not conferre anie thing in name of tribute, saue onelie certaine friendlie ministeries, and officesStrabo lib. [...].. And for the further proofe of the straitnes and strength of this publike bonde, this forme of League was found ingrauen in an auncient stone: Batari fratres, & amici populi Romani Dio lib. 69.: So that Bodinus is not to be harkened vnto, who thinketh that [Page 43] by freindship or league contracted betwixt nations, no aide is due vnlesse it bee expressely mentionedBodi. lib. 5. de rep. c. vlt.: for Baldus teacheth him otherwise, that there is one bodie of two cities or two common weales, by reason of friendship concluded:Bal. cons. 29 but for the better vnderstanding hereof it is to be noted that there be two kindes of societie or publike friendship: one which is tearmed [...], the other which is named [...].Suid. Thucyd. 1. Rhod. 11. an. le. 6. [...], is when the parties contracting league are by force of the league to haue the same friends, and the same enemies, which maner of societie was much vsed by the Romanes: the other is but as it were the moitie or halfe part of this, as namely when one of the league is to helpe the other when he suffereth iniurie: but not when hee offereth iniurie for it is a good rule in the ciuil law, rei turpis societas nō intelligitur: l. 5. 7. vbi Bal. pro sor. Therfore he that couenanteth to defend a castell or farelet is not bound, if warre bee raised through his fault, to whome hee made the couenant:Alexand. 3. cons. 114. and Castrensis auoucheth, that this ought to be vnderstood of a necessarie, not of a voluntarie warre: But this is cleare and certaine in this case, that he that is bound so to defend, is bound to defend by weapons:Deci. li. 59. de. reg. iur. & 3. cons. 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with moneyAlci. 3. consi 2. yet that must be thought to be onely then required at his handes, when the other can not prouide for his owne necessities. Now it is to be considered, whether [Page] eyther of the parties may depart from the league. And I thinke vpon iust occasion such a departure may bee made: Faedus non violatur si ab eo disceditur ob rationem iustam l. 14. 15 16. pro soc.: But this must not bee for a light cause: for light causes are alwaies arising: and all contracts would bee most weake, if for a small and worthlesse cause it should be broken or not regarded. But a prince may safely depart frō the league if some part of the league bee broken by the other partie:Cagnol. l. 41. Cod. de. trans. and leagues as all other contractes bee indiuidua Deci. Cons. 265. cep. 455. 461.: for there be alwaies exceptions vnderstoode in euery league as these for example; Nisi causa superueniat: nisi culpa accesserit eius cui promissio ista fit, & pactio foederis: rebus sic stantibus. Thus we haue spoken of warre and peace generally, now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale.
3 Before warre be maintained by one prince against an other, it behooueth him that commenceth war to denounce the warre solemnly by ambassadors, and by that meane to certifie him of his purpose. For this course is prescribed by the lawe of GodDeut. 20. Ioseph. 5. antiquitat. Aug. iudic. q. 49.. And it was practised by the Grecians, Barbarians, and most of all by the RomainesAcrod. lib. 5. Kenop. Ages. Diony. 2. Liui. 1.: Whereupon Cicero saith, Nullum bellum iustum haberi videtur nisi nuntiatum, nisi indictum, nisi repetitis rebus Cice. 1. de offi. n. c. 1. 23. q. 2.: Which saying is cited and auowched [Page 44] in the Canon lawc. 1. 23. q. 2.. And this is likewise affirmed in the ciuill law.l. 24. de capt. And therefore it is held by the interpreters of the ciuill law, Proditoriè agit qui non indictum mouet bellum: Ias. Bald. l. 5. de iust. l. 4. c. de obs. p. And Varro reporteth, that iust warres did cease to bee waged in his time, because they ceased altogether to bee lawfully denouncedVar. lib. 4. de ling. Lati.. For the auncient Romanes did not affoarde a triumph to anye, vnlesse the warre were solemnely proclaymedSigon. de anti. iur. pro vin.: And Alciat accompteth this the law of nationsAlcia. 14. de si. cor.. And because warre is a publike contention, if in priuate causes summons and citations be vsed, surely in vndertaking warre, denuntiation ought to bee vsedBald. l. 12. de serui. vrb. praed.; for which cause the Romanes were in this point so precise, that they did often denounce war when they needed not; euen when the law of nations was apparantly violated by other nations, so that they might iustly haue enforced them, as the rule of the common law is to haue taken notice of their owne wrong. In this sort they proclaymed warre against the Senones who had slayne their ambassadors: against the Illyrians and Tarentines, who had contumeliously abused themLiui. 12. 20.. And this is noted of them in the case of the Saguntines: Non statim ad arma procurrunt, dum prius more legitimo queri malunt: Flor. lib. 2. So Liuie reporteth of the Frenchmen; Erant qui extemplo Romam eundum censerent, sed vicere seniores vt legati prius mitterentur questum iniurias, postulatumque vt pro [Page] iure gentium violato Fauij dederentur: Liui. lib. 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first assay to end their cōtrouersies without weapons:Herodot. l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman:2. Sam. 20. neither was hee vnwise in this pointe that said: Omnia prius experiri verbis quam armis sapientem decet. Qui scis an quae iubeam sine vi faciat. Ter. in Eunuch. Yea euen Tullus a most warlike man is of this opinion: Quae verbis componi non possunt armis decernantur: Dionis. li. 3. So Theseus a notable Captaine saith in Euripides. Si oratione non persuadeo bellum laudo. Vade, dic Creonti: Theseus amanter repelit a te cadauera: hic primus sermo: si nihil efficis, secundus, vt me armatum expectet. Eurip. in Supp. And so Theodorius said truely to Alaricus: Tunc ad arma cum locum apud aduersarium iustitia non potest inuenire: And againe, Quid opus homini linguasi causam manus agat armata. Cassiod. 5. Var. 1. 7. Thus it is euident that by the lawe of nations warre should be denounced.
4 Somewhat must be spoken of truce, which is thus defined in the ciuill law: Induciae sunt cum in breue et in presens tempus conuenit, ne inuicem se lacessant: lib. 19. de capt. And Gellius maketh mention of a truce which was made for an houre onely:Gel. li. 1. c. 25. Vergill calleth truce pacem sequestrā, because it sequestreth as it were, and suspendeth war for a time. Varro tearmeth it, Ferias belli, warres holiday. Virgil. 11. Aenei. In that it is called sequestra pax, it is to bee noted that it is not [Page 45] simplie a peace. In the Cannon lawe it is called tregna: it is of this nature, that by it warre is not ended but deferred onely, and so it is middle betwixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance. But peace properly so tearmed is of another nature, because it is perpetuall, and vnder the name of peace truce is not comprehended, no though truce be concluded for a long time: as the Veientines made a truce during the space of an hundred yeares with the Romanes: afterward for fortie yeares, and after for twentie: as the Tuscanes had a truce first for thirtie yeares after for fortie, and then peace was concluded. Neyther is it so much as a league, as may appeare by Liuie: De foedere negatum: induciae in biennium datae Samnitibus. And so hee reporteth of the Tuscanes. Pacem faedusquè petierunt, inducias in tringinta annos impetrarunt. Liui. 1. 2. 4. 9. 10. So Plutarch reporteth of Pelopidas, that hee woulde not conclude peace with his aduersary, but that he granted him trucePlut. in Pelop.. Ancharanus doth thus distinguish them there is a time of warre, a time of truce, a time of peaceAnch. cons. 88.. And an other Ciuilian auoucheth truce to be more like to war then to peaceCorn. 3. cons. 167.. And an other saith fitly, Induciae non interrumpunt hostilitatē, sed actus hostiles: Aug. l. si vn vis. de pact. But this must be obserued in obseruing truce, that in time of truce aduantage may not be taken either in regard of the place, of the fight, or of other circumstances. Therefore [Page] Phillip may seeme to haue done vniustly and against the lawe of armes,Liui. lib. 31. who hauing obteyned truce for the burying of his dead, did in this time of truce conuey his armie into safer places. And the D. of Mompensier was likewise guiltie of this fault, who hauing couenanted to yeeld vp a forcelet if helpe came not within one moneth, in the time of truce departed from the forcelet, hauing left it sufficiently fencedGuicciar. li. 2. And it is thought to bee against the lawe of truce to receiue soldiers at that time into a towne besieged:Com. Pij. 2. lib. 5. For it is an vsuall clause in the concluding of truce: Nil nouari securitate pendente: Vital. tract. clau. So Scanderbege doth sharpely reprehend the Turkes, who hauing promised to yeelde themselues if ayde did not come within a certaine number of daies, do in the meane season repaire the breaches of their wals and munition:Scanderb. 8 Neither can Tissafernes bee excused from the violation of truce, who in that time did make himselfe more strong for warre. But Agesilaus is noted to haue done the contrarie:Corn. Nep. Agesil. Neither can the acte of Belisarius bee iustified, who in the time of truce surprised certaine townes, out of which the Gothes departed, howbeit hee answered to this obiection, that he might well enter into such townes as the Gothes had left and waiued: but the Gothes did not waue them; for they departed out of these townes through penurie, & want of victuailesProcop. l. 2. de bel. Goth.: Now by the ciuill law hee that departeth out of a place, or casteth any thing [Page 46] away being inforced by necessitie cannot bee said to leaue that thing behind him pro derelicto l. 1. 7. pro dere l. l. 8. de Ie. Rho.: Yet the common law may seeme to sway with Belisarius, which extendeth derelictum, both to that which is voluntarily forsaken16. Eliz. 138 Dy.. And to that which is waiued and left by necessitie29. E. 3. 29. 12. E. 4. 5.: yet it cleareth not Belisarius, his acte: for during the time of truce no warlike action should haue beene enterprised: so that if the Gothes had left these townes voluntarily, and not by necessitie, this had not exempted him from doing apparant wrong.
5 Because safeconduct is a thing much vsed amongst nations in politique respect, & therefore is parcell of the law of nations, I may not omit or ouerpasse it. Safeconduct because it is in Latine fides publica, doth argue that it may not be granted regularly but of a publike person who is an absolute Monarch, or of some publike estate or common weale; and in England it hath beene vsed to bee graunted by parliament, as appeareth by the statute of Magna charta: Omnes mercatores, nisi ante prohibiti fuerunt, habeant saluum conductum exire, & venire in Angliam ad emendum & vendendum praeterquam in tempore guerrae: & si sint de terra contra nos guerrina, si mercatores nostri in patria illa sint salui, & salui sint illi in terra nostra. I mentioned before this worde (regularly) because by commission and speciall warrant hee that hath potestatem explicandi ardua: or hee that hath causae cognitionem, maye graunt and affoarde [Page] safeconduct for the better performance of his taskeDecia. 3. consi 96.. But safeconduct is to be vnderstood largely, by equitie, and without cauils: and therefore if safeconduct be granted to one, to come safely to a place it is intended that he ought safely to depart, and hee that hath licence to passe safely may send safelyBar. li. 1. C. de nan. Alex. 2. cons. 46. 5. Alci. 4. 14.: and he to whom safeconductt is graunted for himselfe and his company, may bring with him in his company odious persons, as Iewes and infidelsAlc. l. cons. 11. 25. Dec. cons. 51.: but fugitiues, reuolters, rebels and traitors he may not bring with him, for no law of nations nor benefit of common weale belongeth to such,8. 38. de pae. reuolters or runnagates are by the ciuill law burnt aliue, or els hanged vpon a gibbet. Marcellus and Cato the Censorian did whip them and put them to deathPlut. in Mar. & Cat.: Others in setting forth of their games and showes did cast them to beasts: others did lay them vnder Elephants to be trode & torne in peeces, others did with other extremitie worke their deathLiui. 24. 26 Val. Maxi. 2. c. 7. Front. 4. c. 1. Appi. in bel. Hispan.: neither do I think that safeconduct may extend to men of another nation, then he is of, to whom safeconduct is granted. For example, the Fleminge, the Turke, the English are enemies to the Spaniard, if safeconduct be granted to the Fleming, he may not take Englishmen, or Turkes with him in his company. But safeconduct being granted to the husband must needs extend to the wife, and to such thinges as be necessarie to him ad bene esse Bal. 5. cons. 413.: And to such familie-seruauntes or retinue as to be agreeable and proportionable [Page 47] to his dignitie and estateAug. l. 8. de inof. test.: for according to the rule of the ciuill Law, in personalissimis actibus inseparabiles personae includuntur Bal. 1. 3. de const. pri..
6 I will now speake of Captiues, and of the rightes that belong to them (for miserie needeth some solace) by the Law of Nations. A Captiue as the name importeth is he, who is taken in warre, and though he be borne of a captiue woman, yet is he free, vntill such time as he be seised into the handes, or to the vse of the Lord, and though he be so seised, yet it must needes be that he was borne free: for the rule is true: Quae iure gentium acquiruntur, ea non acquiruntur nisi vera interuenerit apprehensio l. 3. de acqui. po. vbi Ias., otherwise he should possesse the treasure who possesseth the ground in which it is, yet he doth not possesse it, howbeit he knoweth of it, and therefore that rule is not in the Law of Nations true: Si quis habet id quod continet, habet id quod continetur: For in the Law of nations this generall maxime holdeth place: Vera et realia non ficta, et verbalia amat ius gentium: yet such a precise seisure is not heere ment that euery part of him that is taken should be touched, euen to the verie shirt of a man, as long as he that seiseth hath a will and power to seise: for he that toucheth a mans eare, is in the ciuill Law held to touch the whole manAlc. d. 41. d. l. 3. l. 21. de fur.. Some hold opinion that he is not a Captiue, vntill he be brought into the tents of his enemiel. 5. de capt. Alex. l. 1. de acquir. po. tt. 4. reg. 6., howsoeuer it be, it is plaine, that Captiues may not be put to death; as the prophet [Page] said to the king of Israel: An quos captiuos abduceres, gladio tuo et arcu tuo eos percuteres? And though bloudie Pyrrhus desirous to kill Polyxena did pretend, that lex nulla capto parcit aut poenam impedit: yet Agamemnon aunswered him well, quod non vetat lex hoc vetat fieri pudor Senec. in Tro.. To which purpose the other Seneca saith excellentlie: Augusta innocentia ad legem bonus esse, et latius officiorum patet quàm iuris regula, multa exigit pietas, humanitas, liberalitas, iustitia, fides, quae omnia extra publicas tabulas sunt. The Scots therefore are greatlie to be commended, who as Buchanan reporteth, though great daunger were imminent, yet did not slaie their prisonersBuchan. lib. 9.. Neither did the English euer (that I reade) vnlesse it were once in that notable fight, in which they did vtterlie destroy the French dominion, who hauing more prisoners then themselues were, and finding their captiues to tende to conspiracie and mutinie, hauing singled the most noble, did kill the baser prisonersCom. Pi. 2. lib. 6. Polydor. 17.. But doubtles the Turkes crueltie was barbarous, who did kill fowre thousand prisoners, that they might not be a burden or charge vnto himIor. lib. 3.. And this fault was committed by Henry the second king of Fraunce Nat. Com. lib. 8., who did cause certaine obstinate prisoners, & perseuering in fight to be hanged: a kind of death vnfit for Captiues, who are not so to be punished without great and vrgent cause, because it is a point of immanitie, and crueltie, bitterlie to rage [Page 48] against them which defende their Prince, and their Countrie.
A Captiue one may be, and yet not a bondslaue: for he can not be a bondslaue, vnlesse his Lord will haue him so. There was a ceremonie therefore vsed to make him bondslaue, which was called Nexus; And it seemeth that the Praetor had some authoritie in this matter: which I ground onelie vpon the last will and militarie testament of a Romane, ingrauen in stone as Sigonius reporteth, who would haue his villaines manumitted by the Praetor Car. Sigo. in vit. et trinu. ph.: and sithence eiusdem potestatis est ligare & soluere, I am of opinion therefore, that he had some intermedling in the making of them villeines. But in the making of them villeines, chaines doubtles were vsed: and therefore Vespasian when he had taken Iosephus prisoner, would needes haue his gyues to be broken, not to be loosed, that he might seeme neuer to haue been a bondslaueIoseph. lib. 5. de bel. Iud.. And whereas the Law saith, that such thinges as are taken of enemies capientium fiunt l. 5. de ac. re. do., it is not meant nolentium: therefore though the power of him that taketh make a captiue, yet his will must make a bondslaue. But surelie the state of captiues, if they become bondslaues is verie miserable: for they are as it were deiected from their nature, and are in accompt of Law tourned into beastes: And wheras before they were accompted in Law persons now they [Page] are accompted thingesad leg. Aquit. 209. Bald. 2. cons. 358., and therefore of the Graecians they are generally called Samata bodies. But I do not think this seruitude to be contra naturam: For Aquinas his distinction is not to be reprooued, that seruitus is á natura, though not secundum primam intentionem, by which we are all made free: yet ex secunda by which God doth punish whom it pleaseth him: but such bondslaues must not be vsed like beastes, but like men: wherefore the speech of some is intollerable (Seneca reporteth it) who did affirme domino in seruum nihil non licere, pictori nihil non pingere Sen. 1. contr. 5.. And Plato writeth not well when he saith,Plat. lib. 6. de leg. that bondslaues are to be handled roughlie h. Aristotle more trulie, that they ought to be handled mildlieArist. 1. polit.. Cicero more iustilie, Meminerimus et aduersus infimos iustitiam esse seruandum, Macrobius more modestlie, Dominum patremfamilias, seruos familiares appellauerunt nostri maiores omnem seruis contumeliam detrahentes Macrob. 1. saturnal. 11.. Clemens Alexandrinus more compassionatelie: Famulis vtendum tanqum nobis ipsis: sunt enim homines tanquam nos Cle. Alex. vlt. paed.. Nunquid canes saginabuntur, homines pascentur male? said Diogenes. In Athens there was a Law de iniuria seruili Athenae. lib. 6.. Amongest the other Graecians there was a Law, that bondslaues might depart from their cruell maisters. In some common weales they had licence to purchase landes, and goodes, as Athenaeus reporteth, according to the Romane Law, as appeareth by Seneca, Dominus praestare debet seruo [Page 49] cibarium, vestiarium: est enim seruus perpetuus mercenarius Senec. lib. 3. de benefic..
7 Enough of Captiues: Now let vs not be vnmindfull of Hostages, which are in state not far distant from Captiues: Therefore Quinctius did cause the sonne of Phillip, and the sonne of Nabis to be led before his triumphall chariot, though they were but HostagesOros. lib. 4. c. 20. Liui. 34.. And the Parthians were wont to saie: obsidatus nihil aliud est, quàm seruitus Ioseph. lib. 18. antiqu.. By the Ciuill Law they can not make a testament no more then others, which are in the enemies powerl. 11. qu. test. fa. po.. The definition of Hostages is thus deliuered in the ciuill Law: Obsides sunt qui fidei publicae seruandae causa, principi, aut duci exercitus dantur Bal. l. 2. c. de pa. qui fidi.. To whom this daunger is incident by the Law of Nations; That if promise be not kept to him whose Hostages they be, they may presentlie be put to death: As may appeare by the examples of the Thessalians Plut. de cla. mu., the Romanes Liui. 2. Diony. 6., the Gothes Procop. lib. 1 de bel. Goth., the Dacians Bodin. 1. de rep. c. 10., the English Polyd. lib. 5. 7. 15..
8 I may not omit to speak somewhat of the Law, and lawfull vse of Stratagems, which haue been so much fauoured and practized in auncient times, that it hath been generallie and peremptorilie affirmed: Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum euentus Ammian. Marc. lib. 17.. And S. Augustine his authoritie is vrged in the Canon Law: Cum iustum bellum susceperis, vtrum aperta pugna, vtrum insidijs vincas nihil ad iustitiam interest Aug. Ios. q. 10. c. 2. 23. q. 2.: To which agreeth the saying of [Page] the Poet: Dolus an virtus quis in hoste requirat? And counsaile hath been giuen by Oracle, that men must not onely fight by warlike instruments, but by nimblenes of wittePausan. lib. 4.. And Brasidas saith in Thucydides, that the theft of warre is most honest. And Silius censuring Fabius vsing such cunning plots saith: Exin virtuti placuit dolus Sili. lib. 15.. But yet great regard is to be had, that all kind of deceit and fraude may not be vsed & admitted: because Law must be vsed in dealing with enemies. But the Law admitteth not dolum malum, being the arte boni et aequi. And in concluding any matter with enemies, all captious and scrupulous disputations and interpretations are to be auoided: for as Cicero saith: Leguleiorum est syllabas & apices aucupari, (non militaris simphicitatis Cicer. 1. de ora. l. 25. de prob..) Wherefore Pericles dealt vniustly, who hauing couenanted with his enemies, that they should be safe si ferrum deponerent, did afterward kill them, because they had about their harneys certaine yron buttons: for this word (ferrum) was to be vnderstood of weapons: as appeareth by that saying of Pyrrhus in Ennius: Fronti. lib. 4. c. 7. Ferro non auro vitam cernamus vtri{que}. And they of Plataea were vniust, who hauing promised to restore certain prisoners, did first kill them, and then deliuer themThucyd. lib. 2.: as if the carcasses of men were captiues, and a dead man were a man. Vniust was Alexander, who hauing promised to certaine persons a safe departure out of the citie, let them go safe out of the citie, but hauing gone a little of [Page 50] their way, he caused them to be slaineDiod. lib. 17. Polyen. 4.. The Samnites were vniust, who hauing promised their enemies that they would take away but a stone all along the wall, did take away the foundation-stones & so destroied the whole wallPolyen. 6.. And that Romane can not be excused from blame, who when Antiochus had promised him that he should haue halfe of his shippes, caused all his Nauie to be cut in the middestValer. Max. lib. 7. c. 3.. And the craft of the people of Lacros is to be reprooued, who hauing promised perpetuall friendship whilest they should treade vpon that earth, and whilest they should carie on their shoulders their heades, did cast out of their shoes the earth that they had put into them, and remooued from their shoulders the heades of garlike which they had priuilie laied on them, and then they leuied warrePolyb. lib. 6.. For as Cicero, though a pagane saith diuinely: Sēper in fide quid senseris, non quid dixeris cogitandum Cicer. 1. et 3. de offic.. Neither is it materiall that some examples, and namely these abouesaid may be vrged for the defence of such sinister dealing, for these few examples make not the Law of nations. Neither in this treatise do we imagine what hath been done of some men, of some nations, in some cases, vpon some occasions. But what hath been done of the most part of the best men of all Nations, vpon grounded aduise, and free election. And surely diuers such great & eminent parsonages haue sometime vsed such stratagems in good sort, and without breach of national iustice. Iudith that wise and [Page] valiant woman, for her plot intended and practized against Olofernes is commended of diuers, yea euen of Diuines: of Clemens Alexandrinus Clemens stromat., of Ambrose Amb. 3. de offic., of Ierom Hieron. apo. Ru., of Augustine Aug. de te. 228. 229., of other. So Augustus Cesar did promise to Cleopatra what she would, if she would effect the death of Antonius Dio cassi. lib. 51.. Such snares were laid against Timoleon, against Eumenes, against Lucullus by Mithridates, as Plutarch reporteth. They were assayed by Metellus and Marius, and perfourmed and executed by Sylla against Iugurtha, as Salust auoucheth. They were compassed of the Aetolians against Nobis Paus. lib. 8.. And attempted of Perseus against Eumenes Liui. lib. 42.. And likewise of Decebalus the king of Dacia against Traian Zona. Dio. 68.. They were procured latelie of Tiruultius against Sforza Duke of Millaine Iovi. lib. 11.. And in time past perfourmed by Totilas against the Gouernor of Perusia Procop. lib. 3. de bel. Goth.. And in this age of Selymus the Turkish Emperour, against king Aladolus Ioui. lib. 17.. And heretofore of a certaine Triballian against Amurathes Catachond. lib. 1.. Manie such cunning practizes were deuised and executed by Annibal that admirable souldier, in whom the two seueral natures of the Foxe and the Lion did constell and accorde: but he was fully countermated by the Romanes, of whom therefore he said: video Romanos suos habere Annibales.
I must conclude with shewing the vniuersall and absolute right, aduantage, libertie, power, and prerogatiue of the Conquerour. The question [Page 51] hath been heretofore, whether all these things that anie waie belong to the people subdued may be claimed by the Victorer, or onelie such things Quae pede praemit, manu tenet. It hath beene agreede, that when Alexander did surprise Thebes, he was an vniuersall & no particular possessor of all their rightes and inheritancesBald. 2. Consi. 202.: And whereas the Chalcedonians being dangerously assaulted by the armie of Alcibiades did priuily and closely conuey their goods for safetie vnto the Bithinians, Alcibiades hauing conquered them, made earnest demand of these goods, to be deliuered him by the BithiniansXenoph. 1. Graec.: And the Romanes did demand the bodies of certaine kinges Demetrius and Mithridates, being ouercome and put to flight, of them to whome they fledLiui. 7. 22. Plut. in Luc. App. in Mithr.: but without all doubt these places, and the things of these places which the conquering armie doth possesse, doe iustly belong vnto the conqueror, & therefore that is said to be the conquerors territorie, vbi exercitus eius terret Panor. 2. cons. 62. Bald. lib. 3. de. off. praes.: And Alexander might well laugh at Darius, who in the articles of peace would haue yeelded these things to Alexander, which he did alreadie possesseCurt. lib. 4. & 5.: And Hanniball did disdaine the Romane simplicitie (though they did it of great pollicie) in selling that ground which hee did possesse with his armieLiui. lib. 26.: And Brasidas the Lacedemonian saide well, that that was not the Boetians land, which the Lacedemonian armie had seysed:Thucyd. li. 4 And when a Monarche [Page] or free citie yeeldeth, al the members and inferior parts doe yeeld implicatiue: wherefore Baldus saith well, A submissione capitis sequitur submissio mēbrorū & rerū, quia seruiēte capite membra seruire necesse est. And it is certain, that the ornaments & riches of the people subdued they may take away iure imperatorio, as Cicero saith:Cicer. Verr. 3. So Camillus a most strict obseruer of the lawe of armes did take the image of Iuno from Vetos Liui. lib. 4.: Marcellus caried away many things from Siracuse, Plut. in Marc. and Mummius conueied great store of Church-ornaments out of Achaia Zonar.: And Sir Frauncis Drake that sea-flowre of England did (as I haue heard) bring home with him the great golden statue of S. Christopher which hee tooke in one of the Churches of Porto Rico when hee sacked it. And though there bee somewhat in scriptureDani. c. 5. spoken against the spoylers of the temple of Ierusalem, the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his maiestie. But it is plaine that cities surprised may bee sacked: cities yeelded vpon condition may notLiui. lib. 37.: and cities surprised may bee sold, and the walles may be destroied, and the cities themseluesPlut. lib. 4.. The wals of Athens were destroyed by the SpartanesThucyd. li. 1.. The walles of Sparta by the Achaeans Liui. li. 38.: the walles of Ierusalem by the commandement of Pompey Tacit lib. 5: part of the walles of Giscala by Titus Ioseph. 4. belli. Iud.: the walles of Argentina by Attila, which hee would needes haue afterward called Polyodopolis, as now hauing [Page 52] many waies to come vnto it.Bon. fin. 1. vng. 2 Fredericke was brought in triumph through the walls of Millaine yeelded vnto himSigon. lib. 13. de re. It.: Alponsus through the walles of Naples: Guicciat. l. 9 (as Guicciardine reporteth) Iulius the Pope of Rome through the walles of Mirandula: was it because the gates were throwne downe? or because such a holy man wold not make a prophane passage through the gates, but through the walles which are commonly consecrated? or because his ordinarie course is to enter by the window, his extraordinarie at the wall? or because he wanted the Aspe and the Basiliske to walke vpon, he thought good for that present to trample vpon stone and morter? as to generall subuersion of cities after a victorie obtayned, it is manifest that Thebes was destroyed by the generall concord of all the Grecians, because they tooke part with the PersiansDiod. li. 15.. Liuie maketh mention of Alba, Pometia, Corbio, Cortuosa, Contenebra, Satricum, Antipatria, Phaleria, and others, which were so destroiedLiuie. l. 1. 2. 3. 6. 7. 24. 31. 32.: Carthage, had the same fortune, which is said to haue suffered the plough, a ceremony vsed of the Romanes in razing of the foundations of a citie conqueredl. 21. qui. mo. vs. am.: the same fortune had Ierusalem c. 7. dist 76. 1. Mich. 3., according to the prophesie of Micheas: Sion vt ager arabitur l.
The eight Chapter.
That in the lawes and constitutions touching Citties, corporations, liberties, franchises
and immunities, and the good gouernment and administration of them, all nations haue
agreed.
COrporations in the whole course and constitution of them doe verie much resemble the naturall bodie of man: for as there bee in it great diuersitie of partes, so is there likewise great distinction in cities and corporations, of misteries & degrees. In Egipt there were in their seuerall corporations diuers sorts and callings of people; Kings, Priests, Warriors, and Workemen: which last kind was subdiuided into foure members, Shipmen, Artificers, Husbandmen, and Shepheards,Arist. lib. 7. polit. c. 10. Herod. lib. 2. histor.. And as a naturall bodie doth consist of things bodily, and of a soule, which is vnbodilie, so that it consisteth of thinges meerely opposite. So likewise a citie or corporation consisteth of multitude and vnitie, whereof multitude is as the bodie, vnitie as the soule, both different in nature. That multitude is as the bodie of a Cittie needeth no great proofe: Yet heare thereof Florus: Cum populus Romanus, Etruscos, Latinos, Sabinosque miscuerit, & vnum ex omnibus sanguinem ducat, corpus fecit ex membris, et [Page 53] ex omnibus vnus est Florus. l. 3. c. 18.. Heare the opinion of the Stoicks, comparing the world to a corporation. Ciuitas totius mundi vna est, & omnes homines populares, municipesquè & veluti armentum vnum compascuo in agro compascens Cice. li. 3. de si. Plut. de vi. Alex.: Heare also Seneca. Homo homini in maiore ciuitate ciuis est, & in adiutorium mutum creatus Senec. 1. & 2. de ira.: and that vnitie is the forme and as it were the soule of a corporation may diuersely appeare Florus saith excellently (for he either could not or would not write but excellently) Augustus Caesar sapientia sua atque solertia perculsum vndique et perturbatū ordinauit imperij corpus. Quodita nunquam haud dubiè coire & cōsentire. potuisset, nisi vnius praesidis mutu quasi anima, & mente regeretur. Florus. lib. 4. c. 3. And Seneca saith wittily: Societas haec nostra lapidum fornicationi simillima, casurae nisi inuicem obstarent & sustinerent se lapides; Sene. epist. 96. This our society is like vnto an arche of stones, which would soone fall if one stone did not hinder and beare vp another. S. Ambrose diuinly: Lex naturae ad omnem nos stringit charitatem, vt alter alteri tanquam vnius partes corporis deferamus. And the saying of Cicero, though an heathen is not heathenish. Spurca eorum sententia qui ad se omnia referunt Cice. lib. 7 ad Attic. ep. 2.. And both he and S. Ierom Hieron. ep. 24. doe condemne certaine Philosophers, who whilest they thinke it sufficient to be without all kinde of vniustice, and bend themselues wholly to that, that they may not hurt any man, yet offend greatly in this, that they doe not seeke and endeuoure to profit other men, but forsake [Page] that part of iustice, whilest they follow the other: from which fault all the Rhetoricke in the world cannot exempt the cloistered Monkes and couchant Friers of the Romish liturgy: Claudian speaketh aptly of this matterClaudi. 4. cons. Honor.:
Thus it is euident, that a multitude lawfully & for a politike end assembled is the matter of a corporation, vnitie the forme. Likewise as a naturall bodie hath his diseases, so hath the bodie politike. Wherfore Liuie his comparison is incomparable. Nulla magna ciuitas diu quiescere potest: si foris hostem non habet, domi inuenit, vt praeualida corpora ab externis causis tuta videntur: sed suis ipsa viribus onerantur Liui. li 30. And againe, Discordia ordinum est venenum vrbis huius Liui. lib. 3.: yet in some things the bodie naturall and a citie or corporation do differre: for the naturall bodie is transitorie and mortall: but a bodie politicke dieth not as it is shewed by M. Townsend in the Mayor of Norwitches case. The comminaltie is the substance of a corporation: and of them dependeth all the inheritance: for the Mayor and the Sheriffes may die, and be chaunged, but so can not the comminaltie 21. E. 4. 7. 12 27. 67. Mai. de Norwich. c. per Townes.: which is elegantly auouched by Liuie speaking in the person of Scipio that worthy man: Si ego morerer mecum expiratura respub. mecum casurum imperiū populi Romani esset? ne istud [Page 54] Iupiter optimus maximus sinat vrbem auspicato Dijs authoribus in aeternū conditam, fragili huic & mortali corpori aequalem esse: Flaminio, Paulo, Graccho, Posthumio Albino, M. Marcello, T. Quinctio. C. Fuluio, Scipionibus meis, tot, tam praeclaris imperatoribus vno bello absumptis, superstes est populus Romanus eritque mille alijs nunc ferro, nunc morbo morientibus Lui. li. 28.. And Tacitus speaketh of this matter pithily though shortly: Principes mortales, aeternae resp. Tacit. annal. 3. And there is an other difference taken in the said case of the Mayor of Norwitch: for a man restrayning the hands of an other mans naturall bodie, doeth restreigne his bodie, but if one do imprison the Sheriffes of a citie, the comminalty is not imprisoned. By this comparison the nature of a politike bodie may sufficiently appeare. Now I will speake of the incorporating and enfraunchising of citizens which hath beene very auncient, as may appeare by Tacitus. Conditor nostri Romulus tantum sapientia valuit, vt plerosque populos eódem die hostes, dein ciues habuerit: and he sheweth it more particularly, Neque ignoro Iulios Alba, Cornucanos Camerio, Portios Tusculo, & ne vetera scrutemur, Lucania Etruriaque, & omni Italia in senatum accitos. And he giueth a good reason wherefore it should be so: moribus, artibus, affinitatibus nostris mixti aurū & opes suas inferant potiùs quàm separati habeant: condemning the Lacedemonians & Athenians, who vsed it not. Quid aliud exitio Lacedaemoniis et Atheniēsibus fuit quāquā armis pollerēt, nisi qd victos {pro} alienigenis [Page] arcebant Tacit. lib. 11. annal.: Amongst the Romanes at the first none were admitted into their citie, but such as did inhabite in that part of Italie, which was called Latiū: afterwarde it was imparted to the other people of Italie, such as dwelt beyond the riuer Poe, and the Alpes, and the sea. Claudius Caesar bestowed the freedome of the citie vpon many barbarous nations: and vnder these Emperours which were Spaniardes, Thracians, Affricans by little & little whole prouinces, yea and the whole Romane empire was endowed with the freedom and liberties of the citie: whereupon that speech was vttered, Romanus vbicunque vicit, habitat: and whereas at the first all nations beside the Grecians were accompted Barbarians, yea euen the Romanes, who afterward were Lords of all, and being Lords did exempt themselues and other nations which they had conquered frō such reproch, and then they onely were noted for barbarous who liued not vnder the Romane Empire:Herodian. Sparti. Eutrop. wherefore Rhenus was said to haue two bankes, the furthermost of which was allotted to the Barbarians, the nearer to the Romanes, according to the saying of Claudian:
And that which Tacitus saith, that the Romanes did grant vnto the Rhemenses, the Lingones, the Bituriges, the Meldinenses, the Xantones, & the [Page 55] Hedui free people of Fraunce, the liberties & free vse of their citie (the suffrage & giuing voice at the election of Magistrates and Officers onelie excepted and foreprised) it is more plainlie and vnderstandinglie opened by Liuie in these wordes: Iam inde morem Romanis colendi socios, ex quibus alios in ciuitatem at{que} aequum ius accepissent, alios in ea fortuna haberent, vt sotij este quàm ciues mallent Liui. lib. 26.. Though Augustus Caesar at the first blossoming of the Romane Empire did make some scruple to enfraunchise straungers, and to admit them into the Citie of Rome: Neither would he bestow the liberties vpon a Frenchman, though earnestlie requested by his Empresse Liuia, whom he dearelie loued, disallowing the act of C. Caesar his adoptiue father, who enfraunchised a whole legion of his French soldiers, and reprooued likewise M. Antonius for selling the liberties of the citie vnto the Sicilians for moneyTranquil. in vit. August.. Yet his posteritie was not so precise, but did abundantlie admit straungers: For Antonius pius did enfraunchise all that were subiect to the citie of Rome, that Rome might be the common countrie of all NationsL. in orbe de statu ho. ff., imitating perhaps Alexander magnus, who accompted the whole world a common Citie,Rom. ad municip. ff. and his pauilion the tower of the citiePlut. in Alex.. And Seuerus did graunt to the citizens of Alexandria, that they might be Senators of Rome, and that other Aegyptians should notice free of the citie of Rome, vnlesse they were before free men of Alexandria n. [Page] Plin. lib. 10. epist. The Heluetians did bestow the liberties of their citie vpon Lewis the eleuenth, and other kinges of Fraunce Bodin. lib. 1. de rep. c. 6.. And Artaxerxes the king of the Persians did graunt such liberties to the whole familie of the Pelopidae Plut. in pelopi.. So the Athenians did make free of their citie Euagoras king of Cyprus, Dionysius the tyran of Sicelie, Antigonus and Demetrius the kinges of Asia, yea euen all the Rhodians Liuius: which the Rhodians requited with like curtesie, which was nothing else but a comburgeosie, such as Bodinus Bodin. vbi supr. reporteth to haue been made betwixt them of Valoys, and certaine towneships of the Heluetians: Betwixt the men of Berne, and them of Friburge: Betwixt them of Geneua, & them of Berne. The nature of which comburgeosie is, that there should be mutuall communitie of their cities, and mutuall league of friendship betwixt them; And if any of these so leagued in societie should forsake their citie, and come to the citie of them with whom they were in league, they should be ipso facto Citizens without any speciall enfraunchisement, enroulment, cooptation, or any other circumstance: before which time they were not subiect to the commaunde and Lawes of that citie, but were onelie Ciues honorarij, as Hercules and Alexander magnus were of Corinth. Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne, and them of the towne of Derbie, that they of Lincolne should be quite from murage, [Page 56] pontage, custome, and tolle, within the village of Derbie, for all kind of merchandize48. E. 3. 17.. This was the difference betwixt veri and honorarij ciues: the former were subiect to the Lawes, orders, and charges of the citie: the other were not. Plutarch Plut. in Solon. wondreth at Solon, in that he made a Law, that all straungers should be barred from the liberties of the citie of Athens, except it were such as were in exile: but indeed he perceiued not Solons meaning, being a man of deeper reach then Plutarch, as also was Polybius, and Thucydides, and Dionysius, of Halicarnassus amongest the Graecians his countrymen, whom notwithstanding in learning, wit, and eloquence he exceeded: for Solon his purpose was in the making of that Law, that none should enioy the liberties of the citie, but such as should be bound and subiect to the Lawes of the Citie. And there was likewise an other difference betwixt veri and honorarij Ciues: for they which were veri ciues did loose the liberties of the citie of Rome, whensoeuer they did purchase the freedome of any other citie: Which may appeare by this, that though Pomponius Atticus being borne in the citie of Rome, was a citizen of Rome, and more then that, beeing a Senators sonne, was eques Romanus, who was therefore called Atticus, because hee had the Athenians in such reuerence and estimation (a man of great byrth: for three Emperours doe referre their originall to him,Senec. in epist. ad Lucil.) yet this man could not bee made a [Page] citizen of Athens, least (as Cornelius Nepos reporteth the plain truthSenec. in epist. ad Lucil.) he should loose his freedom of the citie of Rome. But as to them which were honorarij ciues, Cornel. Nep. in vit. Attic. if they were enfraunchised of a hundred cities, yet they could not loose their freedome of any. In England not Cities onelie admit others to their liberties, but verie Societies of Students; as namelie the houses of Court, and to mine owne knowledge, the worthie societie of Graies Inne, to which be admitted such a number of excellent noble men, great diuines, surpassing gentlemen, whereof some haue sued and been desirous to be admitted: other some haue rather been called, then ordinarilie consorted, for their preeminence and worth, according to the rule of Salomon: As is the fining pot for siluer, and the furnace for gold, so is euery man according to his dignitie. I pray God this fining pot may still continue her siluer of Learning and Law. I beseech him likewise that this furnace of gold, may still seuer the gold from the drosse, that is religion and loialtie, from paganisme and papisme: which hitherto, the Lord be praised, it hath done. But to retourne to my purpose of handling the nature and properties of Cities and Corporations, Though in the generaltie of admittance all common weales haue accorded, yet in the speciall maner of admittance they haue dissented and varied: For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citizens [Page 57] at the leastDemosth. contr. Eub [...] lid.. But in such places and regions, which by reason of the barrennes of the soyle, or by reason of the distemperature of the ayre, are not verie well habitable, not onelie the originarie inhabitants, but euen straungers and aliens are forbidden by the Rulers of the places to depart out of them: As namelie in Moscouia Sigis. in hist. Moscho., Tartaria, and Aethiopia Francisc. Aluares. in hist. Aethiop.: But amongest the Venetians and Rhagusians none can be admitted to their cities, vnlesse it be for a great summe of money, or some principall desert. But now sithence we haue spoken sufficientlie of Corporations in generall, let vs examine the first foundation and beginning of guildes and fraternities, which as Corporations do support the good estate of a Realme; so they do preserue the good estate of Corporations. These Fraternities are deriued of the greeke word [...], which is to be interpreted a well, or pit: for in drinking at one pit or well societie was at the first contracted: thence is deriued [...] fraternitie. So likewise Pagi, towneships, are deriued of the Doricke word [...], which signifieth a fountaine, and in the Atticall dialect is [...]. By the meeting together at the first at one water or fountaine grew loue betwixt man and wife, then betwixt brethren and sisters, then betwixt vncles and nephewes, then grew affinitie: All which would haue been colde, if there had not beene corporations, colleges, guildes, fraternities, and societies erected and established. By [Page] the common Law, no Corporations can be made but by the king, yet his highnes may depute this authoritie to an other, for so it commeth originally from the king: howsoeuer Mast. Keble his opinion is, that a Corporation must be made by the kinges expresse and immediate wordes2. H. 7. 13.. But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrarie22. E. 4. Graunts 30. 20. H. 7. 7., and both Mast. Fitzherbert, and Mast. Brooke Br. Patents 44. abridging the case,Fitzherb. Graunts 36. are in this contrarie to Mast. Keble: And so is the opinion of Choke and Brian, that if before the dissolution of Abbeys, the king had licenced one to make a Chaunterie for a chaunterie Priest, and to giue vnto him and his successors certaine land, this had been a good Corporation21. E. 4. 56.. But to all vnlawfull Gorporations, all giftes, grauntes, fines, and feoffements are made voide by the Satute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of common weales, at the first did accompt no foundation more stable to support a common weale then societies and fraternities. For Numa Pompilius the king of the Romanes did ordeine certaine guildes of workmen and merchants, and did binde them by solemne sacrifices and feasts, which might be at certaine set daies celebrated to preserue loue, and friendship amongest the people, that they might with more ioy and comfort proceede in their priuate and publike affairesPlut. in Num. Dionys. Halicar. lib. 2.: And this he seemeth to haue done by [Page 58] Solons example, who made fraternities of all sorts of men, and permitted them to make Lawes touching their fraternities, so they were not contrarie to the Law publikely receiuedPlut. in Solon.. But Lycurgus did not prescribe certaine feastes to be obserued, but continuall meetings and comessations, that friendship might not at any time be intermitted. In other cities of Greece, societies called [...], and throughout all Italie sodalitia were obserued. To this end and purpose the Cretensians of all ages, orders, and sexe, did banquet together in publike placeArist. in polit.. And in the famous Citie of London, there is annuall and solemne obseruation of their feastes in euery guild, which mightilie preserueth the wealth, tranquilitie, and florishing estate of that citie. Neither is this custome dissonant from God his owne ordinance in the Iewish common weale, who appointed certaine feastes and sacrifices to be obserued of the Iewes, that religion towarde God, and friendship amongest men might bee maintainedNumer. 1. Leuit. 23.. But as to the making of priuate Lawes by such guildes and fraternities, Solons Law abouesaid hath been obserued almost of all common weales: But the Statute of 15. Henr. 6. giueth somewhat a larger scope to guildes and fraternities in these wordes: Guildes, and fraternities, and companies incorporate shall not make, nor vse any ordinance, which may be to the diminution of the Kinges fraunchise, or of other fraunchises, or against the common profit of the people, [Page] vnlesse it be first discussed by the Iustices of peace, or the chiefe gouernors of the village, and before them entred of recorde &c. But when I speake of colledges, companies, meetings, feastinges, and assemblies, I doe with the maine force of my hart exclude vnlawfull societies, conuenticles, and secreat meetinges of male-contents, phantasticall, and priuate humored persons: But to colledges, fraternities, and companies erected and created by Law, I see no reason but that landes and yearelie maintenance may be giuen and allowed vnto them: yet not without the Princes permission, who for some speciall causes fore-seene may stoppe and hinder such donations: And therefore wiselie by diuers Statutes in this Realme is remedie prouided against this, and a writ of Ad quod damnum deuisedStatut. de Religios. 18. E. 3. pro clero. cap. 3. 15. R. 2. cap. 5.. Antonius the Emperour did first of all permit legacies and donations to bee made to colledges and companies, excepting the colleges of the Iewes, whom notwithstanding hee suffered to meete together, and to haue their synagoges for religious vseL. 1. de Iud. C.. Alexander magnus did bestowe vppon his citie Alexandria, built at the seauen-folde mouth of Nilus, manie great priuiledges, fraunchises, and immunitiesIoseph. lib. 3. bel. Iud.. So Frauncis the first, being the founder of that citie which standeth at the mouth of Sequana, gaue great immunitie to such as should inhabite itBodin. lib. 1. de republ. c. 6.. And so diuerse of our kinges of England haue [Page 59] bestowed many liberties fraunchises and benefits vpon seuerall citties, which M. Camden hath verie profitably & very learnedly amongst other things in their due places set downe, whome I need not further commende to my country-men of England, to whom by his great worth and desert he is more deare and precious.
But I will further proceed in shewing the great prerogatiues graunted by princes and other supreame estates to citties and corporations: In all ages and all common weales cities and corporations haue not only had their courts, folkemote, and the like, but euen common councels (as they are commonly tearmed) and publike meetinges for the generall good of the corporations. For as great profite doth arise by such societies and meetinges: so nothing doth more debilitate and weaken the state of a common weale then the taking away of such Councels: therefore the Romanes, when they had ouercome Macedonia, because they would make the estate of it weake and impuissant, they did vtterly forbidde all common Councels, and publike meetinges: so they did when they had ouercome the Achaeans: Memmius the Consull (saith Liuie) did dissolue all the common councels of the particular nations of Achaia, and of the Phocensians and Baeotians, and the other partes of Greece Liui. lib. 35: But when these regions and prouinces were sufficiently quieted and soundly knit to the [Page] bodie of the Romane Empire: then (as Strabo reporteth) their auncient Councels were restored vnto them: but the Romanes did neuer alter the liberties of any citie vnlesse they were abused to their hurt, as appereth by the words of Florus: Critolaus causa belli, qui libertate a Romanis data aduersus ipsos vsus est Flor. lib. 2.: Neither were the liberties of the Aetolians impeached vntill they reuolted to Antiochus, as Iustin sheweth: Offensi Aetóli, quód non ex arbitrio eorum Macedonia quoque adempta Phillippo, & data sibi in praemium belli esset, Antiochum in Romana bella impellunt Iustin. lib. 3.. And such abuses many times happen in cities: for as Liuie that excellent writer, in wit diligence and history, matched by none: in wisedome and grauitie by very few, in pietie ouercome onely of one of the heathens,Varro. and but of one in eloquence well auoucheth:Cicero. Nulla est ciuitas quae non et improbos ciues aliquādo, & imperitam multitudinem semper habeat: Liui. lib. 45. but as they did fauour lawfull and conuenient councels, so vnlawfull and secrete conuenticles they did greatly abhorre: wherefore the nocturnall meeting at the sacrifice of Bacchus was iustly abiudicated and disanulled by the whole Senate: & the conuēticle of the black-religioned Brownists by the L. Archbishop of Canterburie, & the high Commissioners, who though a greater number of them were women & pretended themselues to be harmeles, & vnapt to do hurt; yet as Liuie saith; A nullo non genere summum periculum est, si coetus [Page 60] & consilia et secretas consultationes essesinas Liui. lib. 34.: And this ought especially to be feared and preuented, whē contumelious contumacy is vailed with the shadow of religion and reformation: for as the same Liuie saith againe very well: Nihil in speciem fallacius praua religione, vbi deorum numen praetenditur sceleribus, subit animum timor Liui. li 1. 39.: O lord how long shall Sathan abuse the soules created by thee with a vaine sophistrie in steade of true religion! and such societies, and such families, whether of loue, or of lust, I can not well define, which delight in latebris, are worthy to be sent ad carceres, that they may there liue in tenebris: for it is fit to send corrupt humors, which ouerloden and pester the bodie in latrinam: For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie, who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them: and finding such strength in the weakenesse of the multitude, they beganne to plant their ramme and sette their force against kingdomes & common weales, and had thought vtterly to haue subuerted them, but their companies were quickly dispersed, and the greatest parte of these companions was destroyed by fire and swordPolyb. li. 3.: Now to speake somewhat of the liberties of a citie. S. Paul when he was by the commandemēt of the magistrates apprehended, being accused that he troubled the publike tranquilitie [Page] by seditious assemblies, professing himselfe to bee a citizen of Rome hee appealed to Caesar Act. 25. v. 11 though hee were by nation a Cilician, by bloud an Israelite, by tribe a Beniaminite, yet because his father had beene a citizen of Rome: Acto. 22. v. 28. the liberties were affoarded vnto him: he likewise, when he was commanded to be scourged pleaded for himselfe that he was a Romaneibid. v. 25.. But because the abundance of liberties of all the cities of Asia, Africke and Europa, are sufficiently knowne, I will not stay any longer vpon this point, but wil passe to matters of greater importance, and more difficultie.
The ninth Chapter.
That the disting [...]ishing of demesnes, & the difference of the degrees & callings of men, is according
to the law of nations.
COnfusion breedeth alwaies contention, partition peace, according to the old prouerb, Diuide et impera: for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries, as Abraham & Lot in Palestine, Masinissa and the Carthaginians in Numidia and Mauritania, the Romanes and Nolanes in Italie, the Romanes and Carthaginians in Spayne [Page 61] and Sicilie, the Emperour Valens and the Gothes in Missia, and the regions on this side Danubius, & through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes: and his other sonne Honorius, to whom he allotted Roome, and all the occidentall countries: and so Darius would haue made a partition with Alexander of the whole world, that the one of them shold haue all on the one side of Euphrates: the other all on the other side, yet in the first age and infancie of the world this kind of partition was vnused and vnknowne, as may appeare by these authorities first of Virgill, who saith:
And of Tibullus:
And that of Seneca:
yet the case was altered when Ouid writ thus:
And vpon good reason was it altered, for as Boetius saith well: Dimensi [...]nes terrarum, terminis positis [Page] vagantibus, ac discordantibus populis pacis vtilia praestiterunt Boeti. in geomet.: And the great vse of limits and boundaries Plutarch sheweth, when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily: Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur, & iniuriae iudicium, si non seruarentur Plut. in Num. & pr. R. 15.. And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations & bounds betwixt partie & partie, and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpō the top of the Tarpeian hill vnto Terminus, and this idoll was made of stonePlut. in Num.: He was set in a chappell as not fit to be remoued: hee was made of stone as hard to be remoued: he was placed vpon a high rocke as not possible to bee remoued: and to this idoll nothing was sacrificed but cakes, pulse, and the first fruites of the field: the meaning doubtles of Numa was good, if it had not beene signified, & set forth by an euill meane. For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice: Wherefore Salamon saith: that which also is commaunded in Deuteronomie: Thou shalt not remoue the auncient boundes which thy fathers haue made Deut. 27.17 Prou. 22. v 28. & 23. v. 10.: but the manner of diuiding lands & dominions according to [Page 62] the custome of nations is fully set downe by M. Littleton, though applyed to another purpose, & it is fiue-fold: 1. By setting out an equal rate of the lands to be diuided. 2. By the agreement of frends or intermediation of others. 3. By casting lots. 4. By writ de partitione facienda at the commō law, & the action de herciscunda familia at the ciuill law. 5. By making an vnequall partition equall, by a forrein reseruationLittlet. lib. 3. c. 1.. Distinctions likewise of the degrees of men hath beene in all nations, in all ages established obserued and vsed. For the aduancing of noble men aboue them of lesse note; and the preferring of the gentleman before the yeoman, and peasant is very ancient, and hath beene vniformely reteigned: neither is it to bee maruelled at, for nature her selfe hath tought the nations her schollers this lesson. Trauaile through all her kingdome, that is through the whole world, you shall find this difference in force and of great validitie. Consider the scituation of the celestiall orbes, and ye shall note, that the fierie heauen is placed aboue the chrystaline, as more worthie, both these aboue the firmament, the firmament aboue the other Spheares as surpassing them: Marke the birdes of the ayre, ye shall perceyue that the Eagle, the Phaenix, and the Parott holde preheminence aboue the rest. Looke vpon the riuers, ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges: Ganges better then Danubius, Danubius [Page] better then Tagus, Tagus then Padus, Padus then Tempse, Tempse then Seuerne: Note the fishes of the sea: yea shall find these to haue place aboue the rest the Whale, the Dolphin, the Sturgeon, the Salmon, and the Conger. Cast an eye vpon the beastes of the field, the Lyons, the Pardes, the Elephants, and Panthers do excell: looke into the bowels & matrice of the earth, ye shall haue gold, siluer, brasse, to exceed all other mettals: search into the inwards and the very closet of nature, the best of the grosser stones are the Loadstone, the marble, and the Alabaster: amongst the precious stones, the Diamond, the Topas, the Turkoise, the Smaragde, the Saphire & the Chrysolite. Wherefore the difference of estates, & degrees is well limited and expressed by the custome of nations & the discrepance betwixt noble and ignoble well constituted, which first I will generally handle, & as it were opening the signification of the words: and afterward more fully & particularly as drawing it in a map by pencill. This world nobilis if it be generally taken, extendeth as wel to gentlemen as to them which by preheminence we cal noble; for nobilis is quasi noscibilis either for his stocke, or for vertue: the nobilitie of stocke or bloud hath been more obserued of the Hebrews & Grecians; of vertue by the Romanes and them of the Northerne regions: & so he hath beene accompted ignoble, who hath not beene known, nor noted for some eminency, & rarenes, according to the verse:
Amongest the Graecians at the first, they onelie were accompted noble, who could deriue their pedigrees from kinges or princes, or some other great and famous men; as from Hercules, Cecrops, Aeacus, and the like, or such as by publike decree, and singuler demerit had obteined a crowne of gold, or some statue to be erected for them: And amongest the Iewes, they onelie were accompted noble, which descended from the stocke of Aaron, or the kinges of Israell and Iuda. But the Romanes were farre otherwise minded: for as Salust saith, Hostem ferire, murum ascendere, conspici dum tale facinus facerent properabant, eas diuitias, eamquè bonam famam magnam nobilitatem putabant Salust. in Iugurth.. And an other Romane saith, Genus qui laudat suum aliena laudat Senec.. And an other namelie Ouid: Nam genus et proauos & quae non fecimus ipsi vix ea nostra voco, Ouid. Metamorph. lib. 13. which golden saying so much pleased that worthie and noble knight Sir Philip Sidney, Learninges champion, Englands miracle, Europes fauorite, of whom the wordes of Horace may be verified, if euer they might be truely pronounced of any: ‘Dignum laude virum Musa vetat mori.’ I say they so much pleased him, that he vsed them for a mot:Ouid. And I know not whether Ouid his inuention, or Sir Phillippes election be more to be commended: And nobilitie without vertue and [Page] merit was accompted as an image without life: For Salust saith, Reliqui sunt inertissimi nobiles, in quibus sicut in statua praeter nomen nihil est additamenti: for what difference was there betwixt Ciceroes statue, and Ciceroes drunken sonne, sithence both of them had the name, neither of them the qualities of Cicero. But as well the Graecians as the Romanes did agree in this, that for the rewarding of vertue, and the honoring of desert, and the animating of others, they did allow Scutchions and Armorie, Crestes and Cognisances to men of speciall note: Which our auncestors (saith Plinie) the representations of their dead fathers were proposed to view, their countenances were resembled and engrailed in their Armorie, that there might be some ornaments to decke and beautifie the celebration of publike funerall.
Now to speake more particularlie of the degrees of men, according to the Law of Nations: The degrees of Citizens are to be vnderstood these, which make a difference by state or place, not by sexe as Bodinus grosselie imaginethBodin. lib. 3. de rep. c. 8.: for if there were none but males in a citie, yet it should be a citie: otherwise how was Rome a citie before the entermariage of that people with the Sabine damesLiui. lib. 1.. By the customes of Perusia and Florence euery one that followeth the standerd, and is initiated & entred into militarie profession doth presentlie of a yeoman become a gentlemanBartol. in lib. 1. de dignit. ciu.. But in Fraunce as Bodinus reporteth, gentrie is not [Page 64] gained by vndertaking seruice in warre, but by continuing in the same: if their issue or posteritie do also mannage armes, their issue and posteritie are reputed gentlemenBodin. lib. 3. de repub. c. 8.. But the Venetians doe measure gentrie and nobilitie by Senatorie state: yet I take it to be after the maner of the auncient Romanes, who did not accompt any Equitem Romanum, which was not a Senators sonne: yet manie meere soldiers were admitted of the Senate: Which facilitie of the Romanes in bestowing dignities, did afterwards turne to their great daunger and molestation: for C. Marius was onely a soldier, hauing spent his verie Consulships, euen sixe Consulships in warres, and the seauenth should not haue been vnlike to the rest, if God had not preuented him by death: and continuallie before that time hee was employed in warre, either vnder Scipio the sonne of Paulus Aemilius, or some other great Capitaine: But this man being more in conuaie then counsell, did more hurt then profite the Romane common weale. So did Iulius Caesar: so did M. Antonius, though these later were somewhat more then meere souldiers. But amongest the Aegyptians none could be souldiers, but the Calasyri, and many yeares after when it was vnder the dominion of the Sultanes, the Memmeluci, who therefore had speciall immunities & liberties graunted vnto them: but a meere souldier amongest the auncient Romanes, though he were of excellent desert, yet was accompted [Page] but as a plebeian, and not noble, which may easily appear by the speech of L. Siccius Dentalus made in the Senate house, who boasted that he had serued in warre fortie yeares for his countrie, that he had fought in an hundred and twentie battailes, that he had receiued fortie and fiue woundes, and twelue of them in one day, and all of them aduerso corpore encountring the enemie face to face, that he had purchased fourteene cibicall crownes, three obsidionall, foure-score and three golden chaynes, a hundred and three-score golden bracelets, ten goodlie speares, fiue and twenty faire and costlie arming saddlesDionys. Halycar.: Yet this man hauing no other meanes to attaine to gentrie and nobilitie, was accompted of them in the number of ignoble personsSalust. in bel. Iugurth. loq. de Mar.. Augustus Caesar a notable wise Emperour did supplie the want of Senators with rich menTranquil. in August., though not verie wise, because he perceiued that the notable order of Senators, which stoode much vpon cost and expence, (wherupon I am perswaded these wordes issued from him, Duas habeo superbas filias, Iuliam et Rempub. Macrob. in Saturnal.) would otherwise vtterlie fall to the ground: But in other respectes he did wholie fauour such as vertue had ennobled. For Aemilius Scaurus, though he were a poore man (pouertie is no dishonestie) yet he was nobleValer. Max. lib. 2., for sometime nobilitie is seuered from riches: Therefore Tacitus saith of Cassius, and Syllanus: Alter opibus vetustis, alter generis claritudine excellebat: yet a man may be noble, [Page 65] and verie rich, as Tullie saith of Roscius, That he was, nobilitate et pecunia municipij facile primus. But it is good to be knowen whether base artificers are to be enseated, and bestowed in places of worth and credite. Xenophon reporteth that amongest the Aegyptians, Scythians, Persians, Lacedaemonians, Corinthians, they which did vse base and mechanicall trades were excluded from places of accompt, and were accompted ignobleXenoph. in oecumen.. Aristotle likewise writeth, that amongest the Thebanes it was a Law, that no man could be admitted to place of honor, vnlesse he had left off merchandize by the space of tenne yeares beforeAristo. in polit.. And the Romanes followed them in this: for as Liuie saith, Quaestus omnis indecorus patribus visus est. And Hippolytus a collibus writeth, that it hath been generallie receiued, that whosoeuer is a gentleman, or possessed of an honorable estate, beginneth presentlie to be ignoble by vsing merchandize, vnlesse it be otherwise prouided by the Statutes of some particular Prouinces or Cities: as by the Statutes of Venice, of Florence, of Genoa, of Luca, and of London, where manie of their Senators, magnificoes, clarissimoes, illustrissimoes are MerchantsHippolyt. a collib. in lib. de princip.. And it is the rule of a diuine, morall, and politike writer, that husbandmen, carpenters, potters, caruers either in wood or stone, and the like workmen, are wholie to be debarred from honorable or iudiciall placesEcclesi. c. 38.. And by the imperiall Lawes, Merchants may not be aduaunced [Page] to anie honorable estateL. ne quis de dignit. C. L. si cohortat. de cohort. L. humil. de incest. C.: neither might they haue anie regiment of souldiersL. 1. negotiator. ne milit. C.. And Plato In lib. de legi., Aristotle Lib. 7. polit. c. 9. and Apollonius Philostrat., doe hold merchandizing to be an enemie to vertue. Neither will Ciceroes distinction be of anie force against them, where hee saith: Mercatura si tenuis est, sordida putanda est: si magna, et copiosa, multa vndique apportans, multis{que} sine vanitate impartiens, non est admodum vituperanda Cicer. lib. 1. offic.: For though his commendation of merchandizing bee not verie great: yet his opinion in this is not greatlie good: for Maius et minus non variant speciem. And the ironicall saying of the pyrate to Alexander, was a confutation of this distinctionCicer. 3. de repub., who tolde him in plaine tearmes, That because he did robbe on the Sea with one small pinnasse, he was accompted a pyrate: but because Alexander did the same with manie great Gallies, therefore he was tearmed the gouernour of a fleete: For as Lucan saith well: Facinus quos inquinat aequat. And the same Lucan calleth Alexander Luca. lib. 10, Foelicem predonem, a fortunate Robber: And this aunsweare of the pyrate to Alexander is liked of Ciceto himselfeCicer. 3. de rep., of S. Augustine D. August. lib. 4. de ciuitat. dei., and Alciat Alci. 1. consi. 1..
Likewise it hath been a question sometime sifted, whether he that vseth husbandrie may properlie, and in strict reason bee accompted a Gentleman. In the common Law wee haue this rule, that where a Gentleman is sued by [Page 66] the name of Husbandman, he maie saie, that he is a gentleman, and demaunde iudgement of the writte, without saying that he is no husbandman: for though a gentleman may be an husbandman by the said Law, yet he ought to be sued by his more worthie addition14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8.. Neither doth our Law in this dissent from the practize of other Nations. For Cyrus did verie often boast of his labour, and industrie in matters of husbandrieCicer. lib. de senect.. And these noble Romanes, Serranus, Curius, Cincinnatus, Torquatus, and Cato, are commended of Historians and others, for this that they did establish the safetie of the common weale by their handes, which were worne and growne rough by the plough, and labour of husbandrieValer. Max. Varro. Cicer. Liui. Florus.. In Iewrie and Aegypt how much it hath been esteemed may appeare by this, that neither could Pharao pleasure Iacob more to his contentment: Neither could Ioseph procure a greater pleasure vnto him, then the meadow ground, and pasturage of Gozan, in which hee inioyed the comfort of his age. In Scythia, Arabia, Parthia, Arcadia, and other places; as India, Thracia, Mesopotamia, Sicilia, &c. Husbandrie hath been greatly practized, and in other Nations not so much addicted to husbandry, exceedingly praised. Diuines haue in all ages & countries possessed the reputation, either of gentlemen, or of reuerend, right [Page] reuerend worshipfull, and right worshipfull men, and that vpon good reason, which by and by, (God giuing leaue) I will demonstrate. Whether Phisitians may beare anie of these aforesaid titles or no, it hath been in all ages questioned, in some debated, in this decided: Though amongest the auncient Romanes, phisicke was accompted base and sordid by the space of sixe hundred yearesL. Thais § Lucius de fidei commiss.: yet about the imperiall time it was receiued into the citieL. quidem C. de decuri., and highlie esteemed. But the Hebrewes and Graecians did alwaies make great accompt of the professors of that science, and so did other nations also, when the Arabians first of all had seuered Surgeans, Emperickes, and ignorant Apothecaries from Phisitions: But let their accompt be great in a citie or common weale, yet they must giue place to the profession of the Law, as being a princelie discipline, the center of common weales, and the science of gouernment, as I haue at large shewed in the first Chapter of my direction to the studie of the Law: And this euen Philosophers haue adiudgedPlat. in Gorg. Aristo. lib. 1. polit. c. vlt..
But now whether meere Grammarians and Rhetoricians, I meane sole & single professors of these Artes may challēge to themselues the title of gentrie and worship, it hath verie much been doubted. Cicero saith of Rhetoritians: Rhetores M. Crasso, et Domitio Censoribus, claudere ludum impudentiae iussi Cicer. lib. 3. de orat.. But after his time it was receiued into the citie, and obteined manie great immunities: [Page 67] yea euen these which taught boyes their Alphabet, or first letters were so rewardedl. 6. de exe. tut. l. vlt. in fi. de mu. et ho. l. 2. p. vlt. de vac. mu.: Vaspatian graunted and allowed to Rhetoricians great franchises, and priuiledges,Dio. Cassi. in Vespa. Gelli. lib. 1. c. 11. which made Rhetoricke to flourish in that common weale in these times:Tacit. lib. 11 annal. For as Tacitus saith well, Sublatis studiorum pretijs, etiam studia peritura, vt minus decora: and before him Plato affirmed it: Artes illuc confluunt, vbi ipsarum pretium est Plato in maior. Hippi.. And how much it flourished in other common weales may appeare in that Demosthenes, Aristotle, Demetrius Phalereus, eloquent and wise men were credited with the honor of embassage, and such haue beene in all ages well esteemed, vnlesse it were that they haue miscaried at the hands of some couetous churles, and pennie-fathers, or vainglorious pictures of mankind, which as they measure a mans strength by his stature, so they way his inward abilitie by the outward apparell of his bodie, whose childish humour Iuuenall gibingly toucheth.
This is to esteeme a booke by the couer, a horse by the his trappinges and caparison, and a Greyhound by the collar: O quantum est in rebus inane! When will worldlings iudge vprightly of things! neuer: for the blind cannot iudge of colours, r: and M. Brutus was wont to call such gawdie, & garish fellows, which were rather fine by the tailors needle, [Page] then the vniuersitie learning, aureas pecudes.
Hauing particularly and seuerally spoken, and as it were by way of anatomie, of the diuers callings, estates, and degrees of men, it is good to marshall the callings and degrees in order as well as I can conceiue them. In the first place must bee reposed the person of the king, who as the image of God agreeth with euerie man, as the lieuetenant of God with the magistrate, as the annointed of God to rule & gouerne with neither of the former, but with God onley, whose paterne he is: after the king if we wil discourse according to reasō & ancient example the chiefest of the clergy are to be ranged: for as Iosephus noteth, the Hebrews had but 2. sorts of nobility the one sort of the stock of kings who did successiuely reigne: the other of the linage of Aarō which only were made priests: for that people reposing all their good in religion and the worship of God, did accompt such holy men to be very noble: therfore whensoeuer God did threaten the destruction, & ouerthrow of that people he doth threaten them thus, that the state of the priest and vulgar sort of men shalbe alikeEsa. 24. Ose. 4.; and they which in ancient time did inhabite the Cellicke or Northwest part of France did preferre their Druidae, who had charge of their sacrifices and iudgements, before all sorts of people of the knights, and of the nobilitieCaes. lib. 6. de bel. ciu. Plut. in Anton.: So the Turkes and Arabians haue appointed certaine great men called Mophtae to be their high priests, whom they do [Page 68] greatly reuerence and the summe of all weightie ecclesiastical matters they referre vnto them. The next place should be possessed of Dukes, Marquises, Earles, Vicounts, Barons, &c.
The tenth Chapter.
That in the law of tributes, subsidies, and prerogatiues royal, all Nations haue consented.
AS it behoueth euerie Monarch to haue a watchfull care of his subiects good, and to bend the force of his minde to the preseruation and maintenance of their safetie and good estate: so subiects should not grudge to pay vnto them tributes & subsidies, and other publike impositions, that all necessarie charges may bee substantially defraied, al conuenient designes produced into acte, and solemnely exploited. Princes therefore must haue great care of the furnishing of their treasurie; for who is ignorant that money is the strength and sinew of a state, howsoeuer Machiauell Machiau. in lib. obseru. in Liui. paradoxically would inferre the contrarie, a man very vnfit to defend paradoxes: by it the bounds of the Monarchie are garded, the pore are relieued, they that haue deserued well are rewarded, the publike and necessarie businesse of the common-weale is dispatched, and therefore that countrie prouerbePecunia sine peculio fragilis. may verie well bee admitted into the princes eare, Money without stocke is frayle and brittle: And if warre bee to [Page] bee vndertaken or maintained, how can this bee done without mony, sithence soldiers are neuer kept in order without salarie, and reward payed and distributed vnto them. Consilium principum fuit (saith Pollio) vt milites, quo solent placari genere, sedarentur: promissis itaque per Martianum aureis vicenis, & acceptis &c. Tr. eb. Pollio in Gallien. Philip king of Macedonia was wont to say, that there was no sconce, tower, or forcelet so strong, into which an Asse lodened with money might not enter, and it hath beene noted of Phillip late king of Spaine, that he effected more by his Indian gold, then his Spanish yron. Therefore Horace saith:
Therefore it is good for a prince in time of peace to prouide for the maintenance of warre: for that which is said of a citie or common weale may bee applyed to a prince or Monarch:
And how can prouision bee made for an armie without mony, & how can an army fight without prouision: for as Cassiodorus saith: Disciplinam non potest seruare ieiunus exercitus, dum quod deest semper praesumat armatus, necessitas moderamen non diligit: one of the ordinarie meanes vsed in all kingdomes for the dispatch and accomplishment of publike affayres hath from all antiquitie beene [Page 69] tribute payed by the subiectes to their prince, a thing as ancient, so necessarie: and Tacitus wisely collecteth the conueniencie of it: neque quies gentium sine armis, neque arma sine stipendijs: neque stipendia sine tributis haberi possunt Tacit. lib. 5. annal.: The Romanes did maintaine their warres by tribute; for after Pompeies victory which hee had against Mithridates, they had out of Asia maior six millions and a halfe, out of the lesser Asia onely two millions, which none will maruell at, that knoweth Asia to bee a fertill and fruitfull countrie, greatly replenished with the varietie of the fruites of the earth, with the largenesse of pasture, and the ranknesse of the soyle, and the multitude of such thinges as are transported into other countries for sale: but the tribute of other prouinces was so slender, that it scarcely sufficed for the defence and protection of themCicer. pro leg. Manil.. And all France did not yeelde the thirde parte of that tribute vnto the Romanes, which some part of Fraunce did afterward pay vnto their kings, as Alciat hath obseruedAlci. l. 27. de V.S.: neyther am I of the minde of Phillip Commineus, who denieth generally that princes may command tributesPhilip. Commi. comment.: for I make no doubt but a conqueror may commaund tribute, and all that come in vnder the conquerour by the law of nations: and therefore the Romane generall saith vnto the French men: Iure victoriae tributum vobis addidimus Tacit. 4. histor.: And Iustinian doth commaund that tributes may be imposed vpon the Zani being [Page] conquered vt victos se agnoscerent: and the Iewes though they had beene clearly conquered (for their citie was sacked, their temple possessed, their Sanctum sanctorum looked into: for as Florus saith: Impiae gentis arcanum illud vidit sub aureo vti coelo Flor. lib. 3. histor.:) yet craftily after their manner, because they would haue Christ to haue challenged their earthly kingdome, by that mean to draw him into hatred with Caesar, they demaunded of him whether it were lawful to giue tribute to Caesar: but he that alway professed, Regnum meum non est ex hoc mundo, gaue them a bone to gnawe, Date quod est Caesaris Caesari, and quod Dei Deo Mat. 22.: for in deed tributes are allowed by the law of GodDeut. 20.: & therefore Cicero saith excellently, that tribute is victoriae praemium, poena belli Cicer. in verr. 5.: And Orosius almost as excellently, that it is vinculum pacis, monumentum belli Oros. lib. 5. c. 1.. And though the Spaniards, Germanes and English, doe seeme rather to offer a tribute to their Monarch then the Monarch to commaund it, (for the curtesie of England is great, the clemencie of their princes greater) yet for England thus much I dare speake, & vnder the rule of modestie protest, that sithence the vniuersal conquest of William, who first commanded and imposed tribute vpon this land (for conquerours may commaund) tribute and subsidie haue beene as iustly both by the law of God, and the law of nations, payed in England as in Iewrie, yea and iustly continued as a remembrance of a conquest: wherefore [Page 70] it is diuinely said of that great diuine Tertullian: Agri tributo onusti, hominum capita stipendio censa, notae sunt captiuitatis: Lands charged with tribute, polles with taxe, are signes of conquest Tertull. in Apolog.. Bodinus in my mind giueth good counsell to princes to set a great impost vpon such thinges as corrupt the manners of their subiectes, as namely vppon these compounded perfumes, these paintings of the face, these Margarites, these Marchpanes, Wines,Bodin. lib. 6. de rep. c. 2. and Tobacco: but vainely and contradictorily to himselfe doth Bodinus say, that Haec principi prohibenda non sunt, nec si velit possit, prouing it out of the fifth booke of Plato because such is the nature of men, that these things quae sanctissime vetantur, auidiùs expetant; By this reason there could bee no fault, nor default forbidden: as for Bodinus I excuse him thus: Nullum fuit magnum ingenium sine mixtura dementiae, which Seneca obseruethSenec. in fin. lib. de ira.: And as to Platoes authoritie this is but errare cum Platone, Plato did erre with Plato. Sometime hee did erre, as in the discourse of intemperate banquets, in the brutish lust & inward itch of Alcibiades, in his fond & vnclean fables: & of Athenaeus hee is more sharpely noted to bee inuidissimus, rabiosé maledicentissimus, mendacissimus, improbissimus, ridicule ambitiosissimus: lib. 4. 5. 11. & by his darke & amphibologicall writing, he is said to be the cause of the death of that thrise-worthy Romane M. Cato, Plut. in Cat. whose death at Vtica gaue him his dismall name, [Page] and Solons lawes though hee were his ancestor, a great deale wiser, and farre more imployed in matters of estate, could not content him but hee must haue visioned lawes, such as were neuer vsed sithence his time, and therefore as it is likely, neuer shall be vsed: For what is it that hath beene, that that shall bee, and what is it that hath beene done, that which shall bee done: And there is no new thing vnder the sunne, Eccleast. c. 1. and that that shalbe hath now beene Eccles. c. 3.. But to come to my purpose again, and to another prerogatiue of princes.
Princes likewise maintayne their realmes and their estate royall by importing and bringing in such things, as be of value or price. Wherefore Liuie noteth of Carnileus Consul Liui. lib. 9., that all the brasse and all the siluer he brought into the treasurie: and he saith of Fuluius, that hee brought out of Spaine into the treasurie an hundred fortie two thousand pound of siluer: and an hundred twentie seuen thousand pound of gold: and of Camillus Liui. li. 3., that when hee had ouercome the French nation beyond the Alpes, hee brought in a hundred threescore and tenne thousande pounde of siluer, and of brasse three hundred twentie thousand: and of Flaminius Liui. lib. 34. that he brought out of Greece eighteene thousande pounde of siluer in bullion, and two hundred and seuentie thousand of plate, fourescore and [Page 71] foure thousand shillinges, and three thousand seuen hundredde and fourteene poundes of golde: a buckler of golde entier. Of Phillippes money a hundred fortie and fiue thousande pounde, and an hundred fourteene pounde of golden crownes, which the cities bestowed on him. And Paulus Aemilius Liui. lib. 45. that president of a capitaine, when he had surpised Macedonia, brought into the treasurie a thousand and two hundred sestertians. And Caesar hauing ouercome Fraunce, foure thousand sestertians. Fabius Maximus Liui. lib. 27. brought in fourescore and three thousand pound of golde, beside great quantitie of siluer. And Scipio commonlie called Asiaticus Liui. lib. 36. 38. 39. did bring in after his victorie had against Antiochus, two hundred thirtie and three poundes in golden crownes, two hundred fortie and seauen thousand poundes of siluer, of Phillippes rials a hundred fortie thousand, and a thousand and twentie foure poundes of gold. Who can number that which Cato brought from Cyprus Flor. lib. 3.: that which Pompeie Lucan. lib. 3. brought from the Easterne & Southern warres? These by doing thus did make that common wealth great: others by doing the like may make others like. And Alexander the great did replenish all Greece with siluer, when hee had atchiued the victorie of Darius and the Persians: Looke vpon my whole armie (said he) they which before had nothing but coates of steele, do now lye in siluer beds Curti. lib. 8.. And much did Anniball enrich the Carthaginian [Page] treasurie, when after his victory at Cannae he sent into the Senate of Carthage Liui. lib. 23., three strike of golden ringes, and so compassed them by measure, though by number he could notD. Augusti. lib. 3. de ciuit. dei c. 19.. And in the holie Scripture it is reported of king Salomon: That the weight of gold, which was brought vnto him from foreine countries yearely, did amount to the value of sixe hundred, sixtie and sixe talents of gold, beside that which his collectors leuied vpon his subiectes, and tributaries, and the custome which he had of merchants, together with the tribute of the Kinges of Arabia, and the Lieutenants and Gouernours of nations any waie subiect or subordinate vnto him 2. Chronic. cap. 3. 3. Reg. cap. 10..
Custome likewise is a prerogatiue and benefit to which Kinges and Princes are by the Law of nations entitled: It was of the auncient Italians called Portorium, because it was to be taken of thinges that were to be caried out, and to be brought inCicer. in oration. pro leg. Manil.. The Turkish Emperour taketh the tenth part of the value of the thinges that are to be caried out of straungers, and the twentieth part of his subiectesBodin. lib. 6. de rep. c. 2.. And the king of Spaine taketh in India the tenth part promiscuè, as well of straungers as his subiectesThe booke entituled (The present state of Spaine.. And by the Law of England, Merchants strangers being made denizens, shall paie custome as straungers that be not denizens11. H. 7. ca. 14..
It is good for euerie Prince to haue speciall care and regarde of mainteining merchandize, because [Page 72] by that meane, not onelie thinges profitable are brought into a kingdome, but manie thinges are caried out to be sold, and exchanged for publike good: and manie sodain chaunces do arise, wherein no small daungers are put aside by their meanes. Plutarch reporteth, that in Solons time merchandizing was held in great price, and he giueth this reason for it, because by that meane diuers foreine commodities were brought in, friendship was procured with straunge kinges, experience in manie thinges was attainedPlut. in Solon.. And the vse of merchandizing beeing once taken awaie in the kingdome of Naples, was the cause that all the prouinciall people was presentlie brought to pouertiePont. c. 45. de liberalit.. And for the alluring of straunge Merchants into a Realme, their priuiledges must be inuiolablie obserued, especiallie at the times when they hold their martes, or fayres, that they may safelie goe, returne, tarie, and staie with their wares, which diuers of our Statutes of England haue prouided for, Magna Chart. cap. 28. 9. E. 3. cap. 1. et 2. 14. E. 3. cap. 1. 25. E. 3. cap. 4. 27. E. 3. cap. 2. Of this matter Kings and Princes should haue good regarde: for Platoes admonition is to be followed, when hee saith, Peregrinorum commercia respub. ne auersetur Plat. lib. 12. de legib.. And Amásis the Aegyptian king was so glad of straungers resort and their commerce, that he graunted to the Graecian merchantes meere straungers, the vse and exercise [Page] of their rites and religion in their owne language, and for their more expedite negotiation in that Realme, there was a certaine place appointed, namelie Naucrate for the receit of foreine waresHerodot. lib. 2.. And Aristotle is of opinion, that a principall citie must be erected in some conuenient place wherto thinges which be necessarie to this life may be abundantly conueyed, and this he would haue situate neere to the seaArist. 5. polit. c. 7. et 6. politic. c. 7.. And the people of Megara did iustlie complaine against the Athenians, who had vtterlie secluded them from their Hauens, and from marting with themPlut. in Pericl.. This therefore must needes be a good meane to encrease the riches of a kingdome. But it is the Princes prerogatiue to permit and to forbid merchant straungers at their pleasure and discretion: and therfore the Statute of Magna charta hath in it a good clause for this purpose: Omnes Mercatores, nisi ante prohibiti fuerint, habeant saluum conductum exire, & venire in Angliam &c Magn. char. cap. 28.. otherwise some Merchants may sowe bad seede, euen the seede of seducement of the Princes lieges, shrowding themselues vnder the curtaine of exposing wares to sale: But these which are honest Merchants, and of iust meaning are not to be forbidden.
Other benefites, and prerogatiues there be, which the Law of Nations doth allow to Princes in regarde of their exceeding costes and charge that they are at in the defending, and gouerning their Realmes: For though I haue shewed before, [Page 73] that a masse of wealth almost infinite was brought into the Romane treasurie: yet he that considereth their great expence, and exceeding charge, will, I am sure, confesse, that this great wealth had neede to haue been verie well husbanded for the mannaging of their ordinarie affaires, otherwise it would neuer haue stretched to the defrayment of their charges. Their forces did consist of two hundred thousand foote-men, of fortie thousand horse-men, three thousand warlike chariots, two thousand shippes, a thousand fiue hundreth pinnasses, fourescoore gallies, double furniture of armourie, and three hundred Elephants, and in their shippes were a hundred thousand souldiers, and marrinersLipsi. de magistr. Rom. lib. 1. c. 4. 5.: So that Cicero saith plainlie, that the Romanes, notwithstanding all their great reuenue and treasure, were scarse able to mainteine their armieCicer. parad. 6.. In consideration of which great and extreame charges, the subiects of all Nations haue giuen and yeelded to their princes, diuers princelie and roiall benefites and prerogatiues for the magnifying of their estate: As first the vse and benefit of salt Mines, (for as the Italian prouerbe is: Vino, oleo, è sale suono mercantia reale: Wine, oile, and salt, are the merchandize roiall.) And the Veientines in auncient time being ouercome of Romulus, were straitlie forbidden to absteine from the salt Mines, which were about the mouth of the riuerDionys. Halycar. lib.. And these salt Mines were brought into better forme, and were made more commodious [Page] for the common weale vnder the reigne of Ancus Liui. lib. 1.. And Aurelius victor doth note, that at the self same time an impost was made, and ordeined for the sameVicto. lib. de vir. illustr.. And an other impost was made when Liuie was Censor, who of this word Salt, had the name of Salinator giuen himLiui. lib. 29.. And Paulus Aemilius hauing subdued the Macedonians did reserue the prerogatiue of salt vnto the Romanes, and did forbid the Macedonians to vse any salt, that perhaps they might finde out, without the permission of the Senate. Yet the commerce of Salt he did afford to the Dardanians or Troians, the auncient progenitors of the Romanes Liui. lib. 45.. And the Publicanes had Salt in farme, as may appeare by Ciceroes report, and other authoritiesCicer. pro le. Ma. l. sed et hi. D. de publica. l. [...]. C. pro fo. l. si quis C. de vect. et com.. A princelie thing doubtles it is, and for it there hath been great contention betwixt great estates: as namelie betwixt the Burgundians, and the Almannes, betwixt the Hermunduri, and the Catti, together with that of Perusia vnder Paulus the third, and that of Fraunce vnder Frauncis the first, and diuers others daungerous quarrels haue been about pretensed titles to SaltAmmian. lib. 28. Tacit. lib. 13. Guicciar. lib. 12. 14. 16. 18. 19.. Neither is it to be meruailed that Princes make so great accompt of it: for Homer accompted it diuine, if it be true which Plutarch reporteth of himPlut. in symp. 5. q. 8.. But what shall we saie now of the other entralles of the earth: as Pitch, Chalke, lyme, quarrie stone, brimstone, and the like: As for gold and siluer I make no question, but by the Law of nations they belong to the Prince. I would aske this question, Sithence God hath treasured in the mines [Page 74] gold & siluer, & other mettals: for whom hath he treasured them? if all the Mines of gold & siluer should be in the lands of one subiect: is it lawfull for him to coine money of this siluer & gold? no verilie, as may appeare by that question of our Lord and Sauior, when he asked whose stampe or impression the money did beareMatt. 22. ver. 20., what shall he then do with it? shall he make plate of it: by this mean a subiect shall haue plate, & the king none, which is not conueniēt: Therfore I take the iudgment giuen in the case betwixt the Q. Maiestie & the Earle of Northumberland, touching the title of these roiall Mines to be sound and grounded vpon inuincible reason: howbeit the graunt was omnium et singularum Minerarum: for the diuersitie is there by Wray well taken, that there be two sorts of Mines, mines roiall, & base mines; Now mines roiall may be subdiuided into two other kinds, those which contein in them siluer or gold entierlie: or which haue brasse or copper in them, and haue some vaines of gold intermixed, both these belong to the Prince: for the gold as magis dignum attrahit ad se minùs dignū: But such as haue in them meerly brasse, iron, copper, or lead, may belong vnto a subiect by special title10. Eliz. Com̄ 310: Informac. pur Mines., notwithstanding Dio a wise & iudicial writer maketh all Mines of mettall in general publike, as belonging to the Prince or common wealDio lib. 52.. And mines of Pitch Cicero allotteth to the Prince by the like cēsureCicer. in B [...]ut.. And doubtles there is great reason for their opinion, because it should seeme that these mettalles were [Page] created of God, not for a priuate, but a publike vse at the first: for iron and steele do principallie serue for armour, and there is a rule in the Ciuill Law, De armis publice asseruandis Nou. 85.. Pitch is principallie ordeined for the glewing together of the bordes of shippes, and shippes were principallie ordeined for the common weale. Copper and Brasse haue in all ages and common weales been compaignions of the aforesaid Mettals, and haue been vsed with them, and passed with them as the shaddow with the bodie. Yet if a Prince haue transmitted his title or right vnto the base Mines to anie of his subiectes, I think he cannot by roiall claime wrest them out of his handes. And this Suetonius reckoneth as one of the concussions of Tiberius, who tooke from cities and priuate men the Mettals in which they were lawfullie interestedSuetoni. in Tiber. c. 49.. And Laurentius Medices hath been touched likewise for the same faultMolin ad Dec. cons. 292., that the landes and goods of Traitors and Felons doe by the Law of Nations belong to the king or Monarche hath been afore cleerelie prooued in the second Chapiter of this Treatise. But what shall we saie of Treasure found in the earth will not the Law of Nations assigne it to the Prince? Yes verilie, notwithstanding Plato his straunge conceit, that they should be immobiles, and Dijs inferis sacri: for should there be no vse of so pretious thing, and one of the most gorgeous creatures of God. It is an argument of a froward & a brutish humour to [Page 75] make vse of quarrie-stone & not pretious stone, of coal, and not of gold. The Romanes were as superstitious as Plato, but a great deale wiser, for they dedicated a temple to Pecunia that they might be pecuniosi, stored with moneyD. Augstin. lib. 4. de ciuit. dei. c. 21.. Wherefore Iuuenall by his leaue was deceiued, when he writ:
But it is no meruaile if this poet were ignorant that it was idolized: for Varro writeth, that to many of the learned their gods, their sacrifices and ceremonies were hidden and vnknowne, but M. Stamfords reason wherefore treasure should belong to the king is vnanswerable, and it is this quia dominus rei non apparet, ideo cuius sit incertum est 22. Assis. pl. 99.: and it is a currant rule in all nations, In ambiguis casibus semper praesumitur pro rege. Adrianus Caesar made a lawe as Spartianus reporteth, that if any man had found treasure in his owne ground himselfe should haue it: if in an other mans hee shall giue the half to the owner of the soile: if in a publike place he shall diuide it equally with the treasurie. This law was abrogated by other lawes following, and reuiued by Iustinian, but now and long time agoe the ciuill law hath transferred it to the prince in whose realme it is foundl. 3. §. Nerati. D. de acqui. posses.: and it is a firme conclusion in the common law: Quòd thesaurus competit domino regi, & non domino libertatis, nisi sit per verba specialia Fitzh. Coro. 281. 436..
The eleuenth Chapter.
That all Nations haue both secretly and by the course of their ouert actions, acknowledged
and yeelded to the truth of the lawes and commandements of the 2. table of the decalogue.
HOw far the light of nature stretcheth, may appeare by the liues of vertuous heathen men, who knowing that the sixe last precepts, which almightie God prescribed to his people were to bee obserued and kept, yet wanted grace to refer them vnto God, who ought to bee the marke of all our actions, and in regard of whom only they may be tearmed good: & M. D. Barlow in his deep & learned discourse against the shallow-headed Papist reasoneth soundly and prooueth by the Apostles words, quidquid nō est ex fide est peccatū, & by other vndeniable proofes that such works could not be acceptable to God, because howsoeuer they proceeded from God, yet they were not referred to the glorie of God: for though God moued them to doe well, and some of them confessed: Est deus in nobis agitāte calescimus illo: yet before the end he left them, because vainglory was their end, and [Page 76] so they did their suite at a wrong court. But now let vs particularly examine the obseruation as wel of the gentiles and Christians of these commaundements and ordinaunces. The obedience that children ought to giue to their parents hath bene straitly commaunded by God and seuerely enioyned by EmperoursExod. 20. v. 12. Deut. 5. v. 16. Acto. 4.19. Pompon. l. 2. ff. de iust. et iur. pius Imperat. l. 1. C. de alen. lib.: and Homer diuinely according vnto the wordes of this precept doeth threaten that the life of disobedient children shall not be longHomer. in Iliad.: & Plato hath an excellent speech to this purpose: He which mainteineth his parents whē they are old in his house let him thinke that his house shalbe neuer be possessed of the like ornament Plat. lib. 11. de legi.: therefore it hath beene ordeined of God, that children which were disobedient to their parents, should be punished of the magistrateDeuter. 21. v 18., & his iudgement is thus set downe: If any man haue begotten a stubborne and froward child which will not obey his father & mother, & being corrected continueth still in disobedience, let thē bring him to the elders of the citie, and to the iudgement gate, and the father shall say to the people: this our sonne is stubborne and despiseth our admonitions, and giueth himselfe to riot and incontinencie, then the people shall stone him, and he shall dye: that the euill may bee taken from the middest of you: Yea euen they which had only curst their parents were adiudged to death e: In former time hee that had slain his father or mother grandfather or grādmother, was first bet with rods vntil the blud trickled downe, & then being thrust into a sacke [Page] together with a dogge, a cocke, and a snake, hee was throwne into the bottome of the sea, and by Pompeis law it was prouided, that if the sea bee not neare, he should be throwne out to deuouring beasts. At Rome this fact was not heard of, till L. Ostius did slay his father, which happened after Hannibals warrePlut. in Rom. l. 1. Et l. paena. ff. ad l. Pomp. de parricid. Cicer in oration. pro Rosc. Amerin. et in orator.: And Plato his law is, that if a man in his furie or madnes do kill his father or mother, and they before their death do pardon him the fault, yet he is to be adiudged guilty of slaughter, of impietie, of sacriledgePl. lib. 11. de legi.. But what shall wee say of Orestes, who did slay his mother because she did slay his father: though there bee diuers opinions which do acquite Orestes, as namely the opinions of Cicero Cicer. in Milon., Paterculus Paterc. lib. 1., and Quintilian Quintil. lib. 5. c. 11.: yet against them are Socrates Plat. in 2. Alcibiad., Diodorus Diodor. l. 5., & Aristotle Aristot. l. 2. Rhetoric. c. 5., but why should we depend vpon the iudgement of man in this case, when it is manifest that the iudgement of God was in the highest degree, if we respect the paines of this life onely, executed vpon Orestes: for he was plagued with madnesse a terrible signe of the reuenging wrath of God.
And murder hath beene so much detested that, a beast which had slaine a man was commanded to bee stoned, and that his flesh should not bee eatenExod. 21. v. 28. and by the ciuill law if a man be bitten of an other mans dog, the owner of the dog is chargeable vnto him that is hurt, because hee did not tie vp his dogge or musle himl. 1. §. sed etsi canis. ff. si quadrup. pauper fecet.: therefore Solon deuised a pretie punishment of such wronges, [Page 77] namely that the dogge who had by byting hurt any man should haue a clogge of foure foote tyed to his necke, and so should be yeelded vp into the hands of him whom he had hurt, which Plutarch calleth bellum commentum ad securitatem Plut. in Solon.. They which had killed a man in Greece did vsually flie to forreigne princes, and there if hee who was slaine was a stranger, they vsed to sitte at the threshold of the dore with his head couered with the sword wherewith he was slaine: if hee were one of the same countrie, the sword was brokē in two, and the point of the sword was helde vnder one arme, the hilt vnder the otherSophocl.: a lamentable sight no doubt, but done to this purpose, that they which had slaine the men might by these forraine princes haue expiatiō of their fault, which expiation was fully as bad or rather worse thē the murther; for the princes who were to expiate thē, did by inchantments inuocate and make suite to the wicked spirites, that they may absolue them from the fault which is done by sprinkling them seauen times with water, the predecessor of the Popes holiwater, and to this feate seauen garments were therewith sprinckled, then they kill a swine, a fitte sacrifice for the deuill: then they call vpon Iupiter Hospitall, praying him that he wold not vexe with furie the party that had offended: thus the absolution is worse then the offence, and like to that of the merry Monke: Absoluo te ab omnibus benefactis tuis, & peiorem te relinquo quàm accepi Erasm. in colloqu.. Then [Page] there are boughes spread along the houses, that the deuill might tread soft. Some of them washed themselues in the sea, till they had almost drowned themselues: murder is the forerunner of death: and that foolish solemnitie Catullus glaunceth at: ‘Nec genitor Nimpharum abluat Oceanus,’ Likewise Ouid:
after this manner Adrastus fled from Thebes to Tydeus: Peleus fled to Patroclus, when hee being but a boy had slaine Clesonynus a boy likewise: & Paris though he had stolne away Helena the wife of Menelaus; yet when hee had slaine Antheus Antenors sonne, whom he loued, he fled to Menelaus (a great iudgement of God) his very enemie for expiation, like to that iudgement of the almighty executed vpon Cosby an Irish-man, who when he had slaine the towardly Captaine the Lord Burgh, sought by-pathes, and had thought to haue fled from the slaine body, as farre as the Sunne is from the Moon, but the Lord put a ring into his snowt, and brought him backe againe, almost as neere to the murthered Lord as the grasse is to the earth: a fit admonition for these times wherein homo sacra res per iocum occiditur Senec. lib. de ir.: In Egipt and Babilon he which had slaine a man did penance by doing pilgrimage on the mountaines, and then sacrificing vpon the tombe of the dead, and so being cleansed [Page 78] of the Gymnosophistes. The Persians vnder the reigne of Semiramis did shaue the head of him that had slaine an other and confiscated his goodes: and caused him to go vppon burning coales or firebrandes, and then sprinckled him with water, the patterne of the Popes purgatorieSard. Ferra [...]. de mor. gent.: The Iewes did vsually kill such by sword or by ropeCard. Sigogoni. in lib. de rep. Hebr.: according to the commaundement of God. Qui effuderit sanguinem hominis in homine, sanguis eius effundetur, quia ad imaginē Dei fecit hominem Genes 9. v. 6. Matt. 26. v. 52.. How murther hath beene punished by the ciuill law, the canon law, and the common law of this realme, I haue shewed I hope sufficiently in my Parallele of the lawes, so that I shall not need here to rowle the same stone.
After the hurt of a mans owne bodie, nothing can happen to him worse then the abusing of the bodie of his wife: for (as Salomon saith) iealousy is the rage of a man, therefore he will not spare in the day of vengeanceProuerb. 6. v. 34.. This last did first cause the diluge: and after the diluge, the destruction of the people of Sodom and Gomorra voluptuously mingling themselues with the women of the Moabites, where there were twentie and foure thousand slaineNum. 25. v. 9.: For the vncleannesse of the Gabeonites with the Leuites wife, the whole tribe of Beniamin was destroyedIud. 20.: By the law of Moises if any had committed adulterie with another mans wife, the adulterer, and the adulteresse were both condemned to deathLeuit. 20. v. 10.: & so was adulterie [Page] punished by the Romane lawe called the law Iulia howsoeuer it slept in Iuuenall his time, one that had beene wanton himselfe: Vbi nunc lex Iulia? dormis? yet after this law was recalled by the Emperour Alex: l. Castil. C. ad l. Iul. de adulter. therefore Constantine did punish sacrilegious destroyers of marriage by the swordl. quamuis. c. eo.: therfore the Popes stewes are to be abandoned, by whose contagion all Europe hath offended: Let his holines & his fulminant foolish deity as well in all other respects as in this, bee measured by the law of God, and it will appeare to bee abomination by the law of nations and desolation by the law of God, which all nations owe vnto him. God hath said. Non erit meretrix in Israel, nec scortator Deut. 23. v. 17.. By the imperial law it is forbidden, that no bawdrie should be exercised, or any stewes suffered in any place through the whole Romane EmpireNouell. Const. 14.: Lactantius writethLact. lib. 6. c. 23. that the deuill consecrateth stewes (as the Pope doth Iesuites and Seminarie priests, the one for spirituall lust and idolatrie, or if that faile, for treason: the other for carnall) that he may solemnely laugh both at the adulterer and the adultresse, and so make a banquet of both, which is signified by the Italian by-word. The woman is the fire, the man is the roast-meate, in commeth the deuill, and he playeth the cooke. Flor. giardin. de recreat. In Germany they vse to cut off the heare of an adultresse, and the husband whippeth her out of his house through the streeteFar. lib. de mor. gent.: and I haue seene some of them balded here in Englande [Page 79] with a white sheete on their shoulders on the market daie: but that custome is now, as far as I can perceiue disused: I could wish that it were recontinued, that we might know a knaue and a queane by their coloures. And they were wont likewise to haue a bell runge before them, which was a custome vsed amongest the Romanes, as Perseus sheweth, who because it was wont to be runge at nine of the clocke, calleth them therefore Nonarias, a custome discountenanced and broken by Theodosius, but for what reason I know not: shall we vse nothing that the Gentiles haue vsed? Mahomets law is too light for this fault: for the adulterer is punished but with an hundred stripes. But in Aegypt in auncient time he had a thousand, and the nostrils of the adulteresse were slitted. Solons punishment likewise was too light, yea, and against reason, who imposed vpon him that rauished a maide, the mulcte of ten groates, vpon him that allured a maide to naughtines twentie. But in Athens afterward the rauishour was punished with death, if the rauished partie would not marie himFar. lib. de mor. gent..
In the prohibition of theft, all Nations haue likewise consented. They that steale a sheep out of the flocke, or an oxe out of the heerd, are both by the Ciuill and common Law theefes.Vlp. lib. 1. ff. de abig. They which steale Doues out of a douecote, are by the ciuill Law accompted theefesInstit de rer. diuisi. §. seru. l. 3.. But by the common Law, felonie cannot be committed by the [Page] taking of beastes that be sauage,§. item fer. ff. de acquir. rer. poss. Iustit. de rer. diuis. §. gallinar. l. si pauon. ff. de furt. if they be sauage and vntamed at the time of the taking: nor for taking of Doues being out of a douecote: nor for taking of fishes being at large in a riuer: for such taking is not contrectatio rei alienae, sed quae est nullius in bonis 18. H. 8. 2. 22. Aff. pl. 95.. And the stealing of a Doe which is tame and domesticall is felonie. But as Mast. Stamford well noteth, it seemeth that he that stealeth it should haue certaine knowledge that it is tame: but if the Doe be killed, and then stolen, this is certainlie felonieStamf. lib. 1. cap. 16.. And he that theeuishlie cutteth a mans vines, by the ciuil Law is punished as a theefeL. scien. ff. arbor. furt. caes.. And by the Law of the twelue Tables, if anie man did cause his beastes to feede vpon, or himselfe did cut and carie awaie Corne growing vpon the ground, if he were of full age he was ordeined to be hanged and to be sacrificed to Ceres, if not; he was whipped, and did yeeld either the dammage: or if he were obstinate, the double. Wherein the Decem-virs did seeme to haue imitated the seueritie of Draco, who did inflict no lesse punishment vpon the stealers of grapes and hearbes, then vpon homicides, and sacrilegious persons: But the Romanes succeeding altered this, and inflicted no other punishment then that which is aboue mencioned to be imposed vpon him, who is within age: But as the Law of Moses Deut. 23. ver. penult. et vlt., so it seemeth the Law of Nations did permit a trauailer to relieue his hunger, and to taste so manie grapes as his [Page 80] present vse did require, but not to take them awaie with him. But by the common Law, if a man cut Trees, and at the same time carrie them awaie, this is not felonie, but a trespasse: But if they lie vpon the ground a long time as the goods of the owner of the soyle, this is felonie22. E. 3. Corone 256. 10. E. 4. 15. Stamf. 25.. The Praetors of Rome did punish a theefe poena quadrupti: and the Iewes with the seauen-folde, or if his goodes would not amount to so much, with all the substance of his houseProuerb. 6. vers. 31.. They of Mysia do break the legges of theefesFar. lib. 2. c. 26.. The Scythians do punish petie larceners with whippes: But if a thing of good value be taken awaie, they must render the nine-folde, or els be put to deathFar. ib.. Amongest the Phrygians he was put to death that stole anie instrument of husbandrie, or did kill an oxe that was fit for the plough: because the liuing of these countrie-people did much consist of husbandrieid. ibid.. As in Halyfax, he that stealeth but a yard of cloth is presētly put to death: because the whole liue-lode of the most of them resteth incloth.
And as to the interdiction of false witnesse or testimonie, all Nations haue subscribed. The Graecians did enforce their witnesses to sweare at the altar. And Plato saith, that witnesses were wont to sweare by Iupiter, Apollo, and Themis: Cicer. pro Flac. signifying by Themis that they which did sweare falsely did offend contra ius diuinum & humanum: signifying by Iupiter that they should not escape the reuenge of the wrath of God: by Apollo that their [Page] falshood and periurie could not be concealed: and one witnesse that hath seene a thing done, hath beene more credited then ten that doe onely testifie by heeresay. Pluris est oculatus testis vnus, quàm auriti decem saith Plautus Plaut. in Trucu.. And to this purpose Homer did imagine two gates of dreames: one made of iuorie by which false shadowes did passe, the other of horne by which true: By the iuorie he meant the teeth, signifying that by report manie fables did growe: by the hornie gates he meant the eyes, shewing that the eye-sight maketh the truest reportHom. in Ili.. Iustinian calleth it oculatam fidem when the thing is knowne by the eye sight§ vlt. Iust. de grad.. And he hath diligentlie prouided by his Lawes, that innocencie might be safe against sycophantsNouel. constit. 13. et 16.. And it is a diuine saying in the ciuill Law, Testimonia, instrumenta non tam ad praestigium probationum, quàm e conscientiae quae mille testium loco est fide producenda sunt L. propriet. l. vlt. C de probat. l. eos test. C. de testib.. In England it is seuerelie punished by the Statute of 5. Elizab. and this is according to the Law of God: Non iurabitis in nomine meo mendaciter, neque polluas nomen dei tui: ego dominus Leuit. 19. v. 12.: For truth was so much fauoured amongest the Heathen, that the Aegyptian Iudges had the image of Truth hanged about their neckes.
And the coueting of the thinges that belong to an other man is likewise forbidden: of his wife, Qui aspexeret vxorem proximi sui ad concupiscendam eam, iam adulterium perpetrauit cum ea in corde suo Matt. 5. ver. 28.. [Page 81] And Iustinian his Law is tarte: Si quis non dicam rapere, sed attentare tantummodo virgines sacras auserit, capitali poena feriatur C. de Episcop. et cler. l. si quis non dicam.. And S. Chrysostome saith well: Si mulier ornatur vt viros irritet, etiamsi neminem vulneret, tamen adultera est Chrysost. in Matth. 1. homil. 17.. But some who are glad with fig-leaues to couer their faultes, and to purge their blacke iaundise with a glister of inke, doe excuse their sinne by Dauids example, hauing committed adulterie with Bersabe the wife of Vria, and make that their protection, for which Dauid craued a pardon: But their soules are therefore more sinfull, because they followed Dauid as he was a sinner: the woman was far off, but temptation was neare, as S. Augustine saithAugust. in com̄ sup. Psal. 51., his owne flesh was his betrayer, and when he opened two eyes to behold her beautie, hell opened two gates to sinne: by the one of which came adulterie, by the other murther into Dauids hart. The desire likewise of an other mans landes or goods hath been euen of the Paganes detested: Vicinorum sulcos non transgreditor, ne{que} interuertito, saith Iustinian the EmperourIustini. l. Georg. tit. i.. Ne transgrediaris terminos antiquos saith Plato Plat. lib. 8. de legib.: And therefore as I haue shewed before, Terminus was worshipped of the Romanes: for as the Poet saith: ‘Omnis erit sine te litigio sus ager.’ And the Law of the twelue Tables was: Qui terminum exarassit, ipsas et boues sacri sunto. Cu. Pompeius is highlie commended of Plinie, because he would neuer buy anie mans ground that laie [Page] [...] [Page 83] [...] [Page] neare vnto himPlin. lib. 18. c. 6., beeing better minded then Achab to Naboth, to whom he said: Damihi viniam quae appropinquat domui meae 3. Reg. 21.: But against such the prophet Esay pronounceth a woe: Vae qui coniungitis agrum agro et domum domui Esai. 5. ver. 8.: But because these thinges are plaine, they neede no further discourse.
The twelfth Chapter.
That the rules of Warre and Law of Nations are not to be obserued and kept with Pyrates,
Rebels, Robbers, Traytors, Reuoltes, and Vsurpers.
WIth Pyrates, Rebels, Robbers, Traytors, and Reuoltes, the Law of Armes is not to be obserued and kept: for they by offending haue not withdrawne themselues from publique iurisdictionBald. 3. cons. 96.: for by offending a man may not bee said to be of more price, or of greater libertie, then he was beforePaulus l. 63. ad leg. Falc., and for an other reason they may not claime aduantage by the Law of Armes, because that Law springeth from the Law of Nations, [Page 82] and such persons may not enioie the benefite of that Law to which they are enemies: To these men which haue withdrawne themselues from the communion and societie of men: and as Florus saythFlor. lib. 3., haue broken the league of mankinde; how can the Law of Nations, which is nothing else but the communion and league of Nations, extende anie fauour. Pyrates (as Plinie saith) are enemies to all men lyuing: and therefore Cicero sayth, that if thou doest not bring to Robbers or Pyrates the raunsome which thou hast promised for thy life, there is neither offence, nor fraudulent dealing: no though thou hast promised with an oathPlin. lib. 2. c. 46. Cicer. pro leg. manil. et 3. de offic.. Spartacus that notable roague did mooue Crassus to contract a league with him: But he was with indignation reiectedAppi. in Mithrid. et 1. ciuil.. Tacfarinas that famous robber of Affrike grew to such height of arrogancie, that he sent Embassadors to Tiberius the Emperour: but his armie was sharpe against him and said, that Tacfarinas dealt verie reprochfully with him, because hee being no better then a robber by highwaies, did notwithstanding so deale with him, as if hee had beene a publique or iust enemieTacit. Annal. 3.. Warre hath neuer been as Heliodorus well obserueth, compounded or determined by articles or leagues with such dissolute persons, but either they haue ouercomed, and so suruiued, or els haue been ouercome, [Page] and so haue beene put to deathHeliod. lib. 1: Therefore someAlberic. Gentil. lib. 1. de iur. bell. c. 4. doe woonder that D. Hotoman dare affirme that the Law of Nations doth extende to fugitiues and robbersHotom. 7. vlt. quaesti.: and his first reason is, because there is no Law which doth interdict or forbid to couenant or contract with them: and such thinges as are not verballie forbidden, are implicatiuelie permitted: This reason is of no force, for in that they be enemies to all, and doe spare no man, they ought not to protect themselues by that which is the Law of all men. The question is not what may bee done vnto them, and how manie haue dealt with them, but how by rigor of Law and strict reason they ought to be dealt with. To dispute of Law, is to dispute of a bonde whereby we are bound, but wee are not bounde to such. He bringeth likewise for proofe the saying of Caesar: Should it not bee lawfull for Citizens to send embassadours to their fellow citizens: when the same hath been permitted to roagues and theefes haunting the wilde woodes of the Pyrenean mountainesCaesar. lib. 3. de bel. ciuil.. But this maketh nothing to his purpose: for Caesar doth not there directly affirme that it was lawfull, but he spake it rather to bring the Pompeian faction into hatred, signifying that they did afforde the securitie of embassing to such lewde persons, whereas to their fellowe Citizens they did vtterlie denie it: But heere difference [Page 83] must be held betwixt an absolute monarch which taketh pray or spoyle vppon the seas, and dominions of other princes, and these which bee pirates without all colour of iustice: therefore the Pirats answere to Alexander is misliked,Alberic. Gentil. lib. 1. de iur. bel. c. 4. when he said boldly, That because he did robbe on the seas with one small pinnesse, therefore hee was accompted a pirate: but because Alexander did the same with many great gallies, therefore he was tearmed the Gouernor of a fleet Cicer. 3. de repub.: howbeit this saying of the pirate seemeth to be commended by Cicero Ibid.: and to S. Augustine August. l. 4. de ciuit. dei. it seemeth to haue beene spoken truely and eloquently, which is very straunge, vnlesse they did accompt Alexander a robber, whom some doubt not to call soLuc. 10. Senec. 1. de benefic.: and Alciat also is deceiued, which not onely alloweth the said speech of the pirate, but euen piracie it selfeAlci. 1. Cons. 1., because forsooth pirates are tollerated of some princes, and there were some nations which did publikely practise and put in vre that course of life. The Normanes (saith P. Emilius) as antiquaries doe thinke, did recken and repute piracie amongst laudable thingsp. Emil. lib. 3. Franc.: And Alciat reasoneth further, That they offend lesse then others which do so spoile vpon the sea, where the law of nations onely is of force and no other law: for (saith he) by that law the sea is common. This manner of discoursing becommeth not Alciat: but regard is to bee had, whether hee that before was a robber do afterward become a lawful & iust captaine, which Iustine affirmeth of Aristonicus Iustin lib 35: [Page] Frontinus of Viriallius Frontin. lib. 2. c. 5.: and Appian of Spartacus: of Apuleius who was proscribed, and of Sextus Pompeius Appia. lib. 1. & 4. bellor. ciuil.: which is not so much effected by the leuying of a great armie, or the increase of the same, as these writers and other historiansHerodia. l. 1. seeme to think, but by the enioying of a good and sound title, and by the maintaining of a publike cause: for when Viriallius being before a robber did employ himselfe wholie for the defence of the libertie of his country he became a iust captaine, and may well be said to haue borne lawfull armes: for which cause the Romans did conclude peace and league with him, and did likewise call him their friend: So Arsaces whilest he sought to winne the crown of the kingdome of Parthia, being his cuntrie from the Macedonians, was when he had cōmitted many robberies & pillages, highted a lawfull king: and Aristonicus whilest hee claimed the kingdome of Asia by right of bloud and course of succession, might well be tearmed a gouernor in war and thought to haue pursued that contention which is commonly called war. And so it may be noted that God himselfe would that Sampson should not moue against the Philistines without cause, but so did bring to passe that from priuate occasions he should as it were by degrees ascend to a publike quarrelIudic. 14.: but they which ground not their wars vpon a publike cause are not properly enemies though they haue armes, and do terme themselues gouernors, & though they encounter [Page 84] such as be lawful gouernors, and haue vnder their regiment a complete armie of soldiers: he is properly an enemy which hath a court or a commōweale, a treasurie, & power to make league, peace and truce. And Charles Martelle did say of the Saracens that they could not therefore cleane themselues from the fault of robbers because they went in great troopes, & because they had captaines, & tentes, and ensignesP. Emil. li. 2., sithence they had no iust cause of war which is the only warrant of bearing armesCeph. consil. 620.: What shall then be said of these French men which were taken in the Portugall warre of the Spaniards, and were not vsed as iust enemies: the soldiers I meane of Don Antonio were handled as pirates: yet the very historie doth conuince that they were not pirats: for they did shew forth their kinges letters, the king of France his letters whom they did serue, & not Don Antonio though for him they did fightConnest. l 9: but they which haue beene subiect to others, & are recoiled from their loyaltie of lieges becomming rebels, let them beware how they send embassadors to him from whō they haue reuolted. But it cannot be discerned by the law of nations which Phillip late king of Spaine did to certaine Flemings which came to him as embassadors, though they were neuer vnder his legeance or subiection, their estates hauing bin free frō time immemorial, as al histories of account do with clear voice pronoūce: And Dionisius did imprisō the embassadors of the Siracusanes, because that city hauing driuen the tirant into his [Page] tower did set themselues at libertiePlutarch. in Dio.: but Buchanan seemeth to erre, which compareth two iust princes, nay such as himself confesseth to be most iustBuch. in lib. de re. Scot., namely Hiero of Siracuse, and Cosimo Medices Duke of Tuscana, to two great theeues which did iustly diuide the pray, & did rule well though they came vniustly by it: for how was Cosimo a robber, if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment, he shold perhaps haue suffered it to be subdued by some forreigne Lord: or els haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests, whereas that excellent man knew well how to keepe the ship in the hauen: but it seemeth that the law of armes is not bee kept to an vsurper: and therefore Constance the Emperour could not iustly bee reproued if hee had punished these embassadors, which Iulianus being consorted with him in the Empire by the French armie did send vnto him, as he threatned hee would, for both Iulianus and the armie were rebelsAmm. li. 21. But this is to bee vnderstood onely of such rebelles and such vsurpers as haue beene sometimes in subiection, and vnder the leigeance of some absolute Monarch: for they which doe onely breake league or friendship, or ancient entercourse, are not to bee excluded from the right and benefit of embassageAlber. Gentil. l. 2. de legat. c. 7.: for how often did the Volscians, Latines, Spaniards, and many others reuolt from the Romanes, and yet sent [Page 85] embassadors to them without hurt or fear of dangerLiui. lib. 5. 6. 29. &c. & Appi. lib. 1 de bel. ciuil.: they may lawfully claime the right of embassage, because they had and enioyed it before their reuolt, but otherwise it is of subiects, because they had it not so, neither is it reason that they should gaine any new right, or haue any aduauntage by their crime or offence.
The thirteenth Chapter.
That by the law and practise of nations, warre is not to be maintained against infidels,
onely because they are infidels, and that princes in their realmes may inflict punishment
for straunge worships.
IF religion be of that nature, that no man ought against his will to bee cōpelled vnto it by force of armes, and that be tearmed a new and vnusuall preaching which exacteth faith by blowes: then it followeth that such war is not iustc. 35. 23. q. 5. c. 1. 3. disti. 45. c. 3. de babt.. It is a point of irreligiousnes (saith Tertullian) to forbidde the opinion conceiued of the deitie, and that it shall not bee lawfull for mee to worship whom I would, but I shall bee constrained to worship whom I would not Tertul. Apolog. et ad Scap.: Faith is to be perswaded, not to be enforced (saith Barnard)Barn. cantic. ser. 66.: And Hilarie saith, that by a newe example men are compelled by [Page] armes to beleeue Erasm. pref. Hill.. So Lactantius saith, that religion must be established by words, not by swordsLactant. 5. Iustin. 20. 21.: & so Arnobius saith to his aduersaries: Because ye can do much by force and weapons, doe ye therefore thinke that ye do exceed vs in the knowledge of the truth Arnob. adu. ge. 4.? Ye haue heard authors, now heare reasons. That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing, but to the destroying of it: That which standeth by his owne strength is not to bee vpheld by other supporters. This opinion of not mouing armes for religion,Victor. relect. Franciscus a Victoria a verie learned man, affirmeth to bee allowed of all writers none exempted: therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to maintaine warre against the Indians. And Didacus a Couarruuia a Spaniard likewise & a learned LawierCouarer. reg. pre. §. 10., doth vouch many Canonistes and Diuines which doe teach the same. Baldus also affirmeth, that it is not lawful to wage battell against infidels liuing with vs in peace, and not being iniurious vnto vsBald. lib. 5. de iustit.: yet Didacus saith, that Aquinas is of a contrarie opinionCouar. vbi supr.. And the fathers of the councell of Toletum did make a decree touching the afflicting of hereticks by warre, which is recorded in the cannon lawec. 3. de her. c. 5. dist. 45.. And Barnard mouing Lewis king of Fraunce against Asia saith: Can any war seeme more iust to the then that which is most holy. The Lacedemonians also amongst other obiections made this a cause of their warre amongst the [Page 86] Athenians, and said that they were prophaners of religion: and the Athenians did on the contrarie parte charge the Lacedemonians with this, that they did drawe them that yeelded themselues out of the temples, and killed themThuc. lib. 1.. But surely such pretenses are but colorus of auarice and crueltie, for there is no religion so barbarous, which moueth vs to slay men of a contrarie religionNa. Co. li. 1.. King Ferdinand entitled the Catholike, did couer all his dishonest desires with the vaile of religion, as Guicchiardine notethGuicc. li. 12.. And Charles the Emperor the nephew of Ferdinād did not garnish his ambitious enterprises with any other colourIou. lib. 30.. But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes, and reuenging the iniuries done to Christ haue beene liked & allowed ofCouar. reg. pecc. §. co.: but that is an other question of defensiue war, which without all doubt is lawful, if it be maintained by them that may vndertake the defence lawfully. But now the question is whether only by pretence of religion war may be vndertaken, and this hath bin denied, and the reason is,Alber. Gentill. lib. 1. de iur. bel. c. 9. for that the cause of religiō is not betwixt man & man, but betwixt man and God: neither is the right of any man preiudiced for a diuers religion, because the bond of religion is onely to God: & it is a law betwixt God and man. But here wee doe not speake of such, which are altogether voide of religion, and liue rather the life of beastes then of men. For they like pirates, the common and dayly enemies of [Page] all men are to be pursued by war, & to be brought by armes into compasse, and to the order of ciuill conuersation. For they may iustly seeme to bee iniurious to all men which in the bodies of men carie the appetites of beastes, yea most sauage beastes: for that there is some sparke of religion in some kindes of brutish creatures, hath beene deliuered and belieued. These are they which fight with God after the manner of the Giantes, which is as much to say as to resist nature, for religion is parcell of the law of natureCaluin. li. 1. institut.. And (as Cicero saith, there is no nation which haue not some religionCicer. lib. 1. de nat. deor.: for though many nations follow not a good religion, yet there are few voide of all religion.Baldus. 1. cons. 316. Where Agathias said, that the Almaines wer worthy of pittie though idolaters. Therfore such are to be suffered and to be taught, not to be compelled & exterminated: and many ciuilians haue answeared in the point, that the Iewes were not to bee molested nor enforced to the faith, though they sithence Christes doctrine reuealed vnto them differre nothing from Idolaters. Now let vs consider whether warre and sword ought to be assayed against such as despised the religion receiued in a Citie or commonweale: but doubtlesse they which haue vsed strange worship haue bin in all commōweales seuerely punished. Plato against such awarded a capitall punishmentPlat. 10. de legi.: the ciuill lawes haue made diuers punishmentsIust. 1. Apol.: for this cause Socrates is killed at Athens: Diagoras is [Page 87] proscribed, and some in other places be punished, slaineIoseph. 1. App. Cicer. 1. de natur. deor. Plut. Nic.. Anacharsis was slaine of his countrymen: the Thracians for his greekish rites, which he did vse being returned out of GreeceHerodot. 4.. And Tiberius was hote against externall ceremonies, and against the Aegyptian and Iewish rites. And Augustus did vse the accustomed religion, and did not tollerate anie newSueton. 93. Dio. 53. 54.. And so Maecenas did counsaile Augustus to punish such as brought in new or foreine religion: because they drewe manie into conspiracie, and to other inconueniences, verie preiudiciall to a MonarchieDio. lib. 52.. And some Princes for the same cause doe mislike the doctrine of Luther Guicc. 13. 20.. But other Princes which hearken to Luther are of a contrarie minde. Surely such religion as distroyeth the gouernment of common weales and Monarchies, is not to be sufferedAelia. lib 9.: But if the religion be good and do not hurt Princes, they that withstand it are like the stubberne Persians which resisted Daniell Dan. 6.. But some perhaps will saie, that diuersitie of religion hindreth the societie of men, as contrariwise the vnitie thereof doth preserue it, which Philo speaketh of his countriemen the Iewes Phil. de for.. And others haue said that by the difference of religion and sectes, and by the distance of life and maners hatred and seditions arise, by which euils, cities often do perish. All diuersitie of religion dissolueth gouernment as Cardanus thinkethCard. 3. de sap.. And a moderne polititian doth earnestlie auouch the [Page] sameLips. in polit.. Wherefore Procopius saith, that Christians by disputing subtillie of their Faith, and contending amongest themselues, doe stir vp seditionProcop. 3. Goth.. And an other historian addeth: If at anie time controuersie doe arise of Faith, parents do not onely dissent from their children, but the husband from the wife in seditious manner Nic. Call. 17. Histor. 7.. Valentinian and Gratian both famous Princes, doe denie vnto Valens neare vnto them in bloude, aide and succour for this diuersitie of ReligionZonar. Cedr. Callis. 11. histor. 49.: and added further, that it was not iust nor godlie to helpe an vngodlie man, and to enter into a societie with an enemie of God, a professed Arrian. And vpon that reason Iustinian the Emperour mooueth the French against the Gothes, because they also were ArriansProcop. Goth. 3. 4.. All which come to this summe, that the Princes cause may seeme iust, who suffereth one Religion, and which maintaineth it by punishments. Yet some are of an other minde, that force is not to be vsed against them which embrace a contrarie Religion: but they temper their opinion with this caution: Nisi quid detrimenti illinc respub. capiat. Vnlesse the common weale may receiue some dammage thereby Alber. Gen. lib. 1. de iur. bel. c. 10.. And therefore Augustus is reported to haue fauoured the synagogues of the Iewes, because to him they seemed not Bacchanals or conuenticles made for disturbing peace, but the schooles of vertuePhil. de legati.: for many times vnlawfull assemblies be vnder pretence of Religionl. 2. de extra. or. l. 1. de coll., which are neuer without daunger, and [Page 88] haue alwaies been forbiddenMant. in orat. pro Sext. & Asc. pro Cornel.: But when it is apparant that such meetings are not made of euill intent, the prohibitiue Law ceasethAlciat. 5. consil. 107. Launpr. Plin. vltim. epistol. 103. 104. Euseb. 3. 27. 33. Tertul. apol.. And there is an Epistle of the Emperour Marcus extant, forbidding Christians to be troubled, vnlesse they were conuicted to haue attempted some thing against the common weale, and if nothing were obiected vnto them but diuersitie of Religion. And Alexander Seuerus did allowe the priuiledges of the Iewes, and did tollerate Christians. And Traian did before commande, that the Christians should inioy their libertie being instructed by Plynie of their innocencieIoui. lib. 18.. Euen in S. Peters Church at Rome the Easterne people and the Aethiopians doe offer sacrifice after their maner, & are mainteined at the Popes chargeIoui. lib. 18.. The Lutheranes are permitted to haue their publique exercise in all the principalities and dominions of the house of Austrich in Germanie. But diuers Religions are not permitted of the Lutherane Princes: though Bellarmin affirmeth it, but of the Papistes which is denied by himBellarm. 5. cont. lib. 3. c. 19. et 18.. One Religion onlie is not professed in the citie of Augusta, of Ratisbona, of Frankford, and other free Cities of Germanie In such sort liue the Polonians, the Heluetians, the Rhetians, and thou either deceiuest vs, or els art deceiued Iustus Lipsius Lips. de vna relig., which deniest that there is but one Religion in any one principalitie of Germanie. There is indeed but one suffered of the Lutherane Princes, & this is true, notwithstanding Bellarmins premised [Page] assertion: But of the Princes of Austria not onlie the religion of Luther is tolerated, but euen the heresie of the Anabaptistes. And whereas Bellarmin saith, that three onelie Emperors did permit diuers religions: namelie Iouinian, who was reprooued by Synode: Valens who was an Arrian: and Iulianus who was an Apostata. Surelie there is none of sound iudgement but will agree with him in this, that Princes ought principallie to regarde the vnitie of Religion, as a thing most pleasing vnto God: who hath said by his holie Apostle Ephesi. 4. vers. 5.6. Vnus Dominus: vna fides: vnum baptisma: vnus Deus et pater omnium [...].: If God, Faith, and Baptisme in generall, and quocunque modo would haue serued, Paule who in his heauenlie Epistles vseth not one word superfluous, would not haue said vnus, vna, vnum: would not haue vrged it, would not haue exacted it, would not haue cried for it. Yet I would not haue weapons and armes to stir vp warre for Religion onelie, if rebellion or disloialtie be not mixed with it: For heresies may be punished, and yet citra bellum, Trismeg. de nat. deo. Dio lib. 42. without warre. Let Lipsius therefore be silent, who saith that it is necessarie to contende by weapons, whilest some goe about to preferre their religion before other some: or else saith he, it will be no religion, which is cold and calme. To this warlike note & hote humor, which argueth his want of pollicie, and that he is neither wise as a serpent, nor simple and milde as a doue. [Page 89] It may be aunswered that warres for Religion are onelie there to be tolerated, where there is no religion at all, or where subiectes pretende religion as a cause of their rebellion, not where there is diuersitie of religion. Nay it is no religion which is hurt to the slaughter of Citizens and subiectes, and the desolation of kingdomes or countries. Are not the Aegyptians to be laughed at, which with mutuall warres and woundes did afflict themselues, for a monstrous and absurde religion on both sidesTrismeg. de nat. deo. Dio lib. 42.: For it appeareth by Diodorus Siculus, that the diuersitie of Religions was to this purpose brought into Aegypt, that the people might disagree amongest themselues, and so haue no leasure nor opportunitie to conspire against their kingDiodor. Sicul. lib. 2.. The Aegyptians (saith onePhil. de 10.) are by nature wont of little sparkes to raise great flames: For the Aegyptians as others report of them, are men vnconstant, raging, proude, iniurious, desirous of nouelties, and willing to chaunge a present state wish an erronious libertieVopisc. Dio 39. 42.: And therefore it was well considered by Augustus and Tiberius Emperours, that no Senator, that is, no noble nor mightie man should gouerne Aegypt, or should goe into EgyptTacit. annual. 2.. But that Princes may commaunde the due obseruation and practise of Religion, according as God infourmeth their consciences by the rules of his sacred worde, and the instruction of his true teaching [Page] spirite, in their Realmes, dominions, and kingdomes, wherein they haue absolute power, and may with seuere punishments correct the frowardnes of men addicted to straunge worshippes, may by the vnited practise of all common weales be conuinced. A king saith Aristotle in auncient time was the Gouernor in warres, the Ruler in iudgements, the maintenour of ReligionPolitic. lib. 3. c. 11. et 5.. This hath been obserued of the Assirians, Persians, Medes, Iewes, Graecians, Romanes, and all other the most eminent Nations of the worldIustin. Procop. Cursius. Varro. D. August. 3. 4. 5. et 6. de ciuit. dei.. And so it is reported in Scripture of Asa, that he tooke away the altars of the strange Gods, and the high places, and brake downe the Images, and cut downe the groues, and commaunded Iudah to seek the Lord God of their fathers, & took away out of all the cities of Iuda the high places, and images; therefore the kingdome was quiet before him2. Chronic. 24.. And Iustinian the Emperour speaketh imperiously: We command (saith he) the blessed Archbishops of Rome, Constantinople, Alexandria, Theopolis, and Ierusalem, to receiue for ordeining and installing of Bishops, onely that which this present law doth allow Nouel. constit. 123.. Archadius setteth downe both law & punishment in some cases of religion. If any Bishop refuse to communicate with Theophilus, Atticus, and Prophyrius, he shall lose both his Church and his goodes: if any that beare office, [Page 90] they shall forfeit their dignitie: hee shall lose his seruice: if any of the common people, let them be fined and exiledNicephor. li. 13. c. 30. Sozome. lib. 8. c. 24.. I will not insist longer vpon a matter plaine, but will cut off these lines to auoid tediousnes.