I. What is War.

WAR is the State of those that contend by Force, as they are such. Which gene­rall Description com­prehends all sorts of War that we shall speak of. For I ex­clude not here the Private, which indeed hath priority, and without question hath the same nature with the Publique; and therfore may properly be denoted by the [Page 2] same word. But if the name of War beat any time given only to the Publique, it is as many other generall words are, often applied particularly to that Philo. 2. de leg. special. Hestes non soli existimantur qui [...] Navdi aut T [...]rrestri praelio decertant, sed pro ta­libus habendi et qui machinas admovent portubus aut manibus, eti­ [...]st nondum pugnam incipiunt Se [...]v. ad illud primae Ae [...] Nec bello major et armis. Bellum et Consilium habet: arma tantum in actu ipsi sunt. Species that is most excellent.

II. What is Law.

LAW, taken in the largest sense, is a Rule of Moral Actions, obliging to that which is Right. We say Ob­liging; For Counsells and other Pre­cepts, though right, yet not obliging, are not called Laws; and Permission properly is not the Action of Law, but the Nega­tion of that Action, unless as it obligeth some other not to hinder him that is per­mitted. We said, obliging to that which is Right, not simply to that which is just; because it pertains not to Justice only, but to other vertues For exam­ple, Zaleucus made a law inflicting pu­nishment up­on him, that against his Physicians Precept, drank Wine.. The best division of Law is out of Aristotle, into Natural and Voluntary.

III. Of Naturall Law.

NAtural Law is the Dictate of right Reason Philo. Lex mentiri nescia est [...]ecta ratio, quae lex, non ab hoc aut illo mortali morta­lis, non in Char­tis aut [...] exanimis oxa [...]ima, sed cocumpt nescia, quipye ab im­mortali natura insculptain im­mortali intel­lectu. Tertul. Quaeres igitur Legim Dei, ha­bens communim illam in publico mundi, in natu­ralibus rabulis. Vid. Chiysost. 12. et 13. de star. Thom. se­cund 57. 2. & Sco [...]. 3. 37. shewing moral turpitude, [Page 3] or moral necessity to be in some act, by its convenience or disconvenience with the Rational Nature: and consequently that it is forbidden or commanded by the Author of Nature, God. The Acts, con­cerning which is [...]ant [...]uch a dictate, are due, or unlawfull of themselves, and therefore are conceived necessarily to be commanded of God, or forbidden. By which note, this Law differs not from hu­mane only, but from the Divine vo un­tary; which doth not command or forbid what is by it self and in its own nature, due or unlawfull; but by forbidding makes the thing unlawfull, and by commanding makes it due. For the better understand­ing of Natural Law, we must observe, some things belong unto it not properly, but reduct vely, viz. the things whereto the Law Natural is not repugnant: So are things called just, which are without in justice. Sometimes also by abuse of the word, the things which Reason alloweth for honest and better than the opposite, although they be not due and necessary, are said to be of the Law Natural. Ob­serve farther, this Law is not only con­versant about things not subject to human pleasure, but about many things also which are consequent to the Acts of Mans Will. So the Will of Man introduc'd Dominion, such as is now in use: But, that being intro­duc'd, the law of Furtum natura turpe Ulpian. Nam­que odit iose vim Deus: nec Nature tells me 'tis wick­ednes for me to take away, without thy [Page 4] consent, that which is under thy dominion. divites nos esse rapto, sed pro­be partu cupit. Eurip. H [...]. Moreover the Law of Nature is immuta­ble: yet somtimes it comes to pass that in the Acts determined by that Law, a see­ming mutation deceivs the unwary; when in truth the Law of Nature is the same, but the matter about which it is, is chan­ged. For example, If my Creditor ac­counts the debt I owe him as received, I am not bound to pay: The reason is not, because the Law of Nature is become more indu [...]gent, & requires me not to pay what I owe; But because by the indulgence of my Creditor the debt is forgiven me. So if God command a person to be slain, or his Goods to be taken away, it will not follow that Man-slaughter or Theft is lawfull; which words include a Vice; but the act is not Manslaughter or Theft which is done at his command who is su­preme Lord of our Lives and Goods. Last­ly, there are some things that do not sim­ply, but in such a state of affai [...]s, belong to Natural Law: as the common use of things was natural before Dominion was introduced; and before positive Laws, eve­ry man had right to get his own by force.

IV. Of the Law of Nature and Nations.

AS for that distinction extant in the Roman Law-Books, between the immutable Law, common to other Crea­tures with men, (cal'd the Law of Na­ture;) And that which is proper to men a­lone, (usually called by them the Law of Nations,) it is of very little or no use. For no nature, that hath not the use of ge­neral precepts, is properly capable of a Law In equis, in leonibus jusli [...]i­am non di [...]imus. C c Offic. 1.. If at any time Pliny notes a likeness of Ju­stice in Ele­phants. [...] 8. and he speaks of an Asp that kild her own young one, because that young one had kild the mans son that enter­tained her. l. 10. c. 74. Sen. Muta animalia, ai [...], humanis aff [...]cti-bus carent: habent autem similes illis quosdam imp [...]. Justice is at­tributed to the brute creatures, it is im­properly, for that there is in them some shadow and print of reason. Whether the act it self, determined by the Law of Nature, be common to us with other creatures, as the breeding up of our Is­sue; or proper to us, as the worship of God, it is not in this respect mate­rial.

V. The proof of Natural Law.

A Thing is proved to be of Natural Law two ways, à priori, or à po­steriori. That way of proof is more sub­til, this more popular. The proof is à priori, if we shew the necessary conve­nience [Page 6] or disconvenience of any thing to the rational and social nature; à po­steriori, if, though not with full certain­ty, yet very probably, we conclude that to be a point of Natural Law, which is receiv'd for such amongst all, or at least the most civil Nations. For an univer­sal effect hath an universal cause; and of so generall an opinion, there can hardly be any other cause, but sense it self which is called common Argumentum veritatis est ali­quid omnibus videri. Sen.. But I said, with good reason, the Non [...] penitus est vana est senten [...]a, multi quam po­puli celebrant. Hesiod. Tertul. Quod apud multos unum invenitur, non est erratum sed traditum. more ci­viil Nations; for as the Philosopher hath it, Justin coll cum Tryph. Exceptis illis qui ab impuris spiritibus abrenti & per malam educationem, instituta prava & le [...]es iniquas corrupti naturales notiones perdiderunt. What is natural we must judge by those in whom nature is least corrupt, and not by the depraved. * A­rist [...]t. Polit. 1. 5.

VI. Of Voluntary Humane Law.

THe other kind of Law is Voluntary, which draws its original from the will. And this is either Divine, or Hu­mane Law. We begin with Humane, be­cause more known. And this is either Civil, or of larger extent, or of less ex­tent than Civil. The Civil Law is that which proceeds from the Civil power. The Civil Power is that which rules the Common-wealth. And a Common-wealth [Page 7] is a society of Freemen united for their common benefit. The Law of less extent, and that comes not from the Ci­vil power, though subject to it, is vari­ous, conteining the precepts of Fathers, Masters, and such like. That of larger extent is the Law of Nations, i. e. which by the will of all, or of Iasqu. 2. controv. 54. 4. many nations hath received force to oblige. I adde, of many, because there is scarce found any Law, besides the Natural, (which is al­so called the Law of Nations) common unto all. Y [...]a, oft-times in one part of the world, there is not the same Law of Nations as in another: as we shall shew hereafter. This Law of Nations is pro­ved in the same manner with the un­written Civill Law, by continual use and the testimony of skilfull men. And to this purpose Historians are of singular profit.

VII. Voluntary Divine Law.

VOluntary Law Divine (as the words at first sound inform us) is that which hath its rise from the will of God; whereby it is distinguished from Natural Law, that may be also, as we have said, entituled Divine. Here hath place that indistinct Anaxarchi apud Plut. in Alex. saying: God wills it not, because 'tis just; but 'tis just, (i. e. due in Law) because God wills it. This Law was given either to mankind, [Page 8] or to one people; thrice to mankind; presently after the creation, again in the restauration after the floud, lastly in that more sublime restauration by Christ. All these Laws doubtless oblige all men, after they have sufficient notice of them.

VIII. That the Law given to the He­brews obliged not other Nations.

THe Hebrews were the only people in all the world, to whom God pe­culiarly gave his Laws, as Moses, and the Psalmist tell them. And certainly Deut. 4. 7. Ps. 147. those Jews are out (one is Trypho in his disputation with Justin) who think all strangers, if they will be saved, must take upon them the yoke of the Hebrew-Law. No Law binds them to whom it was not given; To whom this Law was gi­ven, the Law it self speaketh, Hear O Israel! With them the Covenant is made; They are taken for a peculiar people of God, as Maimonides confesseth, and proves out of Deut. 33. 4. Amongst the Hebrews indeed there alwaies lived some strangers These pious men of the Gentiles, as Maimonides often faith, shall be par­takers of fu­ture happi­ness. that feared God, such as Cor­nelius, Acts 10. and the worshipping Greeks, Acts 17. These, as the Hebrew Masters say, were bound to observe the Laws given to Ad [...]m, and to Noah, namely to abstain from Idols and from blood: but to the proper Laws of the [Page 9] Israelites they were not bound. The Prophets when they Preacht unto the Gentiles never imposed on them a ne­cessity to submit to Moses Law. And the Jews in Antiqu. 22. 2. Josephus said well, that God might be worshipt and his favour obteind without circumcision Tryphon Justino sic air. Si in illa Philo­sophandi ratio­ne mansisses erat tibi reliqua spes aliqua status [...]. Gal. 5. 3.. For, the reason why many strangers were circumcised, and by circumcision bound themselves to the Law (as Paul explains it) was to procure the Privileges of that Common-wealth (for such Proselytes Justin. coll. cum Tryph. [...] qui circum [...] po­pulo se aggrega­vit par est in­digenae. had the same right with native Israe­lites) and to partake of those promises which were not common to mankind, but peculiar to the Hebrew people. Ye [...] I deny not, in after times it grew to an erronious opinion in some, as if without Judaisim were no salvation. That we are bound by no part of the Hebrew Law, as it is properly Law, we collect hence, because all obligation, except by the Law of nature, comes from the will of the Law-give [...]: but, that it was the will of God, others besides the Israelites should be holden by that Law, we have not the lest intimation. Wherefore, as to us, there is no abrogation of that Law; for how could it be abrogated in respect of them whom it never obliged? From the Israelites indeed is the bond taken off, as to Rituals, presently after the first publication of the Gospell (which was revealed to Peter Acts 10.) and as to [Page 10] other points, after that people by the o­verthrow of their City and their utter desolation, without all hope of restitu­tion, ceased to be a people. But, for us foreiners, we obteined not this by the comming of Christ, to be freed from Moses Law: but, we who before had only an obscure hope placed in the good­ness of God, are now susteined with a perspicuous Covenant, and the Hebrews Law, the partition Wall between us, being taken away, we are incorporated with them into one Catholick Church.

IX. What arguments Christians may deduce from Moses Law, and how.

NOw, seeing the Law given by Mo­ses cannot induce upon us a direct obligation, as we have shewed; let us see what other use it may have, both in this of War, and other the like questions. To know this is very usefull to many purposes. First then, the Hebrew Law doth manifest, that which is commanded in that Law not to be against the Law of Nature. For, the Law of Nature, as we have said, being perpetual and immutable, it consi­steth not with the justice of God to com­mand any thing contrary unto it. More­over, the Law of Moses is called pure and right by the Psalmist; and, by the A­postle, P [...]. 19. Rom. 7. holy, just and good. I mean the [Page 11] precepts; for, of the permissions we must speak more distinctly. Legall permission (for that which is meerly of fact, and signifies removal of the impediment, is not pertinent here) either is plenary, which gives a right to do a thing law­fully; or less than plenary, which on­ly gives impunity among men, and a right that no other can lawfully hinder the doer, From the former permission, as from a pr [...]cept, it follows, that the thing permitted is not against the Law of Nature: not, from the later. But this consequence seldom is of use: be­cause, the permitting words being am­biguous, we must rather, by the Law of Nature, interpret what kind of permis­sion is meant, than from such a kind of permission prove it to be the Law of Nature. Our second observation is, That it is now lawfull for Christian Gover­nours to make Laws of the same sense, with the Laws given by Moses: unless the whole substance of any Law con­cern the time of Christ exspected, and of the Gospel not yet revealed; or, un­less Christ himself, either in general or in special, hath ordained the contrary. For, no other reason can be ima­gined, why any of Moses constitu­tions can be now unlawfull. A third observation's this: Whatsoever pertai­ning to the vertues Christ requires of his Disciples, is given in precept by Moses, [Page 12] the same is now also, if not more, to be perform'd by Christians. The ground of this observation is, that the vertues re­quir'd of Christians, as Humility, Pa­tience, Love, are requir'd in a greater degree Chrysost. de Virgin. 94. Major [...] vi [...]tus ostenden da est, qu [...]a multa nuno spiritus essusa est gratia, & ingens donum est Christi ad­ventus. & v. Iren. l. 4. c. 26. Heb. 7. 19. 8. 7. Rom. 10 5. Gal. 3. 25. than they were in the State of the Hebrew Law. And justly, because al­so the heavenly promises are much more clearly proposed in the Gospel. Hence, in comparison of the Gospel, is the old Law said to have been neither perfect nor faultless; and Christ is call'd the end of the Law; and the Law a School­master to bring us unto Christ. So, that old Law of the Sabbath, and that other of Tithes V Iren. l. 4. c. 34. & Chrys. ad Eph. 11. 10. do shew, that Christians are oblig'd to separate no less than a seventh part of their time for Gods service; nor less than a tenth of their fruits, for the maintenance of his Ministers, and the like pious uses.

X. That War is not against the Law of Nature.

WE said afore, when the question is about the Law of Nature, the Ex. l. 1. c. 2. meaning is, whether a thing may be done, not unjustly: and, that is un ust which hath a necessary repug­nance to the rational and social Nature. Now, among the first principles of Na­ture, there is nothing repugnant unto War; there is much in favour of it. For, [Page 13] both the end of War, the conservation of life and members, and the keeping or acquiring of things usefull unto life, is most agreeable unto those principles: and, if need be, to use force to that purpose, is not disagreeable, since every living thing hath, by the gift of Nature, [...] strength, to the end it may be able to help and defend it se [...]f. Galen Dente lupus, cornu taurus petit; unde nist intu [...] monstra­tum? Hor. saith, that Man is by nature fitted for Peace and War; though comming into the world unarmed, yet he hath a hand fit * De usu part 1. to provide and to handle arms; which also Insants, we see, of their own ac­cord without a teacher make use of for a weapon. So Aristotle De part. a­nim. 4. 10. saith, the hand is to man instead of a spear, of a sword, of any arms whatsoever; because it can * Cassiodor. de anima. Et quoniam neque cornu, neque dente, neque fuga (sicut alia animalia) cor­poris humani formase praeva­let vindicare, robustus illi thorax, brachi­aque concessa sunt: ut illa­tam insurtam mann defende­ret, & objectu corporis quasi quodam clipeo vindicare [...]. take and hold all. Moreover, Right rea­son and the nature of society inhibites not all force, but that which is repug­nant to society, that is, which depriveth another of his right. For the end of so­ciety is, that by mutual aid every one may enjoy his own. This were so, al­though the Dominion and propriety of possessions had not been introduced; for life, members, liberty would yet be pro­per to every one, and therefore could not without injury be invaded by any other. And, to make use of what is common, and spend as much as may suffice nature would be the right of the occupant. Which right none could [Page 14] without injury take away. This is more plain, since by Law and use Dominion is established: which I will express [...] Tullies words: If every member shoul [...] De offic. 3. think to gather more strength by draw­ing to it self the strength of the member next it, the whole body must needs [...] weakned and destroyed: So, if every one of us snatch unto himself the commodi­ties of other men, and draw away from every one what he can to advantage himself, humane society cannot stand. Nature gives leave to every man, in the acquisition of things usefull, to supply himself before another; but by the spoili of another to encrease his own store, that nature doth not permit. It is not then against society to provide for one self, so that anothers right be not diminished: nor is that violence unjust, which doth not violate the right of another, as the same Author saith: Of the two kinds of contention, by debate, and by force, the one agreeing to men, the other more becom­ing beasts, we must fly unto the later, when the former will not serve. And elsewhere: Epist. Fam. 12. 3. L. 1. Sect. Vim vi. D de vi & vi arma [...]. What is there that can be done against force, but by force? Ulpian saith: Cassius writes, that it is by nature lawfull to repell force by force; and arms by arms. Armaque in armatos sumere jura sinunt. Ovid. Caius Juriscons. Adversus periculum natura [...] ratio permittit se defendere.

XI. Further proof, out of the sacred Hi­story, that all War is not against the Law of Nature.

THis is further proved out of the sa­cred History. For when Abra­ham having armed his servants and friends, pursued the four Kings that had spoiled Sodom, and returned with vi­ctory, God by his Priest Melchizedeck approv'd his action. Blessed be the most high God, said Melchisedeck, who hath Gen. 14. [...]. deliver'd thine enemies into thine hand. Abraham, as appears by the story, had taken Arms without any special com­mission from God: therefore the Law of Nature was his warrant, whose wisdom was no less eminent than his sanctity, even by the report of aliens, namely of Berosus and Orpheus. The History of the seven Nations, whom God gave up to be destroyed by the hand of Israel, I shall not use: because there was a spe­cial mandate to execute Gods judge­ment upon people guilty of the greatest crimes; Whence, in the Scripture, these VVars are properly called the VVars of God, undertaken by his command not by humane Coun [...]el. It is more perti­nent, that the Hebrews, under the con­duct of Moses and Joshua, when they were opposed by the Amalekites, re­pulsed them by Armies. The Action was Exod. 17. [Page 16] not set upon by Gods command, yet was it approved by him after it was done. Moreover, God hath prescribed to his people general and perpetual Laws of waging VVar, thereby shewing, VVar Deut. 20. 10. 15. may be just even without his special mandate. For he doth plainly distinguish the cause of the seven Nations from the cause of other people: and prescribing nothing about the just causes of entring into VVar, thereby shews them to be manifest enough by the light of nature, as t [...]e cause of defending the frontiers in the VVar of Jephtha against the Am­monites; and the cause of Embassadors Jud. 11. violated in the VVar of David against 2 Sam. 10. the same. It is also to be noted, which the divine writer to the Hebrews saith, that Gedeon, Baruc, Sampson, Jephtha, David, Samuel and others, by Faith o­verthrew Heb. 11. 33. 14. Kingdoms, prevailed in VVar, put to flight the Armies of Aliens. Where, in the name of Faith, as we learn by the series of that discourse, is included a persuasion whereby is belie­ved that the thing done is pleasing un­to God. So also the wise woman saith of David, that he fought the battails of God, that is, pious and just. 1 Sam. 25. 28.

XII. That War is not contrary to the voluntary Divine Law, before the time of the Gospell.

THe greatest difficulty lies in this point, concerning the positive Di­vine Law. Nor may any object, the Law of Nature is immutable, and there­fore nothing could be constituted by God to the contrary; for this is true in things commanded or forbidden by the Law of Nature; not in things per­mitted only: which things, being not properly of the Law of Nature but with­out it, may be either forbidden or com­manded. First then, against VVar is brought by some that Law given to No­ah and his posterity: And surely (saith Gen. 9. 5, 6. God) Your blood of your lives will I re­quire: at the hand of every beast will I require it; and at the hand of man, at the hand of every mans Brother will I require the life of man. Who so sheddeth mans bloud, by man shall his blood be shed: for in the image of God made he man. Here do some most generally un­derstand that which is said of requiring blood: and what is said of shedding blood for blood, they will have to be a commi­nation, not an approbation. I can al­low of neither; for the prohibition, not to shed blood, is not of larger extent than that in the Law, Thou shalt not kill: [Page 18] and this, 'tis manifest, hath neither ta­ken away capitall punishments nor VVars. VVherefore, both this Law and that doth not so much constitute any new thing, as declare and repeat the old naturall Law obliterated and depraved by evill custom. And the words are to be understood in a sense which includes a crime: as in the wor [...] homicide, we understand not every kil­ling of a man, but that which is on pur­pose and of an innocent person. The which follows, of shedding blood for blood seems to me not to contain a naked act but a Right. I explain it thus. By na­ture it is not unjust, that every one suf­fer as much evill as he hath done; [...] Quae fecit st quisque ferat, jus fiet & aequum. of a sense of this naturall equity, [...] accus'd of paricide by his own con­science said, Whosoever findeth me she flay me. But, God in those first times Gen. 4. 14. either by reason of the paucity of men or because there being yet but few offen­ders, exemplary punishments were [...] necessary, repressed by his edict th [...] which seemed naturally lawfull, and ap­pointed the manslayers company to be avoided, not his life taken away. The like was decreed by Plato in his Laws, and of old practized in Greece Euripides. Quam bene parenium pro­vida aetas statuerat: ut cogeretur de vita decedere Hominumque vi­su caede patrata nocens, Fuga (que) lueret triste non letho seelus.. Per­tinent is that of Histd. 3. Thucydides: Antiently [Page 19] great crimes had little punishments Servius ad 1 Ae [...]. Luetts, [...], Et hic sermo [...] pe­cunia descen­dit; antiquo [...] enim [...] om­nes pecuniariae fuerunt.: but in progress of time, those being con­temned, death was inflicted. From one notable act a conjecture being made of the divine pleasure went into a Law: so that Lamech also, upon the like crime committed O [...] rather [if he had committed the like: for the words bear this sense., promised to himself impu­nity from that example. Nevertheless, Adhuc enim vi­debatur nesas, quamvis malos, lamen homines, [...] capi­ [...] affi [...]. La­ctant. l 2. Gen 4. 24. when before the floud, in the Gyants age, a promiscuous licence of shedding blood had prevailed, mankind being a­gain restored after the floud, God, to re­strain that licence, thought it meet to use more severity; and laying aside the lenity of the former times, permitted now what nature did before dictate not to be unjust, that he should be guiltless who slew the man-slayer Josephus. Edico ut à cae­de humana pu­rae habeaniur manus; quod si quis eadem com­miserit, poena [...] scrat.. This, af­ter Courts of Justice were established, was upon very great reasons restrained to the Judges only: yet so that some Print of the former custom was seen, e­ven after Moses Law, in his right, who was the next Kinsman to the person slain. We have no mean Author to countenance our interpretation. Abra­ham, who being not ignorant of the Law given to Noah, took arms against the four Kings, not doubting but his enter­prize was very reconcilable with that Law. And Moses too gave order that the Amalekites violence should be with­stood by Arms, using the right of nature: for it appears not that God was consul­ted Exod. 17. 9. [Page 20] with in this. Moreover, capitall pu­nishments, it appears, were used not a­gainst man-slayers only, but other Ma­lefactors; Gen. 38. 24. and that as well among the holy people as other nations. By the aid of naturall reason, having some ground to make conjecture of the divine will, they proceeded from like to like, and collected, that the constitution a­gainst the man-slayer, might extend al­so to other notorious and great offen­ders. For, some things there are e­quall unto life, as reputation, virginall chastity, conjugall fidelity; or without which life cannot be secure, as reverence to authority, whereby society is preser­ved: Offenders against these seem no better than man-slayers. Hither per­tains an old tradition extant among the Hebrews, that more Laws were given unto Noah's Sons by God, but Moses did not relate them all, because it was sufficient for his purpose, that they were after comprehended in the peculiar Law of the Hebrews; so, against incestuous Marriage, there was extant an old Law, though not remembred by Moses in its place, as appears Levit. 18. And among the Laws God gave to Noah's children, this also they say was decreed, that not only homicides, but adulteries, incests and rapes should be punished with death; which is confirmed by the words of Job. Also, the Law given by Mo­ses [Page 21] Chap. 31. 2. addes unto the capitall sanctions, reasons, that are of no less value among others, then among the Hebrew people: peculiarly it is said of homicide, that the earth cannot be purged but by the blood-shed of the man-slayer As Levit. 18. 24, &c. Psal 104. 5. Prov. 20. 8.. Be­sides, it is absurd to think, the Hebrew Num. 25. 31, 33. people were allowed to secure their Go­vernment, and the publick and private safety, by capitall punishments, and to bear Arms for their own defence, but o­ther Kings and Nations at the same time were not allowed to do so; and yet were never admonisht by the Prophets for using capital punishments and ma­king VVar, as they were oft reprov'd for other sins. Yea on the contrary, who would not believe, seeing Moses Judicial Law is an express of the divine pleasure, other Nations who would take a Copy thence, did well and wisely: as it is probable the Greeks, especially the A­thenians did? whence there is so great similitude in the old Attick Law, and the of-spring thereof, the Roman of the 12. Tables, with the Hebrew Laws. This is enough to shew, that the Law given to Noah is not of such a sense as they would have it, who impugn all VVars by that Argument.

XIII. Of the Gospel-Law.

THe objections against VVar taken out of the Gospel have a greater shew; in the examination whereof, I will not say with many, that in the Gos­pel, beside the precepts of Faith and the Sacraments, nothing else is found but what is of Natural Law; for, as most understand this, it is not true. This I willingly acknowledge; in the Gospel nothing is commanded us, which hath not a natural honesty and comeliness; but, that we are not further obliged by the Laws of Christ, than we are by na­tural Law, I cannot grant. It is mar­vellous to see what pains they take, why are in the other opinion, to proove the things forbidden by the Law of Nature, which by the Gospel are made unlaw­full, such as are concubinacy, divorce prolygamy Spectat huc illud Hicrony­mi: Aliae sunt leges Caesarts, aliae Christi; a­liud Papinianus, aliud Paulus noster praecipit.. Things indeed of such: nature, that to abstain from them, rea­son it self tells us is more honest and be­comming: Yet not such, as contain in them (set the divine Law aside) any apparent wickedness. And who can say, nature hath bound us to that which the Christian Law gives in precept, to 1 John 3. 16. lay down our lives for the brethren? It is a saying of Justin Martyr ocus est, ad Zenam [...] idem­que sensus apud Originem in ex­cerptis illis quae Philocatia di­cuntur., To live according to nature is his duty, wh [...] hath not yet attained to the Faith of [Page 23] Christ. Neither will I follow their conjecture, who suppose Christ in his Sermon on the Mount, was only an In­terpreter of Moses Law. These words Mat. 5, &c. of his so oft repeated have another sound: Ye have heard, that it hath been said to them of old: but I say unto you. Which opposition, and the Syriack and other versions proove the truth of that reading, to them (not, by them) of old. Those of old, or the antients, were no other than they that liv'd in Moses time; for the commands rehearsed as spoken to the antients, are not the sayings of the Lawyers, but of Moses, either word for word, or at lest in sense. Thou shalt not kill. Whosoever shall kill shall be in Ex. 20. 13. Lev. 21. 21. danger of judgement. Thou shalt not Ex 20. 14. commit adultry. Whosoever shall put a­way Deut. 24. 1. his Wife, let him give her a wri­ting of divorcement. Thou shalt not forswear thy self, but shalt perform unto Ex. 20. 7. the Lord thine oaths. An eye for an eye, Lev. 24. 20. and a tooth for a tooth (understand thou mayst require in the Court of judge­ment.) Thou shalt love thy neighbour Lev. 19. 18. (i. e. the Israelite) and hate thine ene­my (i. e. the seven Nations In hos odium lege permitti ait illustrissimus Aba' baniel ad Deut. 23. 21. Ex. 34 11. Deut. 7 1. Ex. 27. 19., to whom they might not shew friendship nor pit­ty: to these the Amalekits are to be added, against whom the Hebrews are commanded to have VVar for ever.) But, to understand the words of Christ we must note, that the Law given by [Page 24] Moses may be taken two ways: ac­cording to what it hath common with other Laws, made by men, restraining the greater offences with fear of open punishments, and hereby containing Heb. 2. 2. the Hebrew people in the state of civil society; in which sense it is called the Law of a carnal Commandement, and the Heb. 7. 16. Rom. 3. 27. Law of Works: Or, according to what is proper to the divine Law, as it requires also purity of mind, and some acts, which may be omitted without tem­porall punishment; in which sense it is called a spiritual Law, re oycing the Rom. 7. 14. Ps. 19. heart. Now the Lawyers and Pharisees, contenting themselves with the form [...] part, neglected the second, which is the better part, nor did they inculcate it into the people. The truth of this ap­pears not only in our Books, but in Jo­sephus also and the Hebrew Masters Moreover, as to this second part, we must know, the vertues exacted at the hands of Christians, are either commen­ded or commanded to the Hebrews also, but surely not commanded in the same degree and latitude Egregius im­primis Chry­sostom. locus de Virgin. cap. 44. Olim tanta nobis in­juncta non eral virtutis mensura, sed & vindictam sumere de inju­riam inferente, &c. At post Christi adventum multo arctior facta [...] via. E d. l. 3. c 83. Non eadem virtutis mensura à nobis & ab illis exigitur. Idem in orat. filium Patri esse aequalem, ait, in Evan­gelio esse, P [...]aeceptorum & intensionem & adjectionem. as they are to Christians. In both senses Christ op­poses his precepts to the old ones: [Page 25] whence it is manifest, his words contain more than a naked Interpretation. The knowledge whereof conduces both to our present matter and to many other things, lest we strein the Authority of the Hebrew Law beyond its reach.

XIV. That War is not against the Gospel-Law. The first Argument.

OMitting Arguments of less value in our judgement, our first and prin­cipal proof, that the Right of VVar is not wholy taken away by the Law of Christ, shall be that of Paul, to Timo­thy. I exhort therefore, that first of all, 1 Tim. 2. 1, 2, 3. supplications, prayers, intercessions, and giving of thanks be made for all men: For Kings, and for all that are in autho­rity, that we may lead a quiet and a Sen. Ep. 73. Philosophiae fideliter dedi­to [...], falso ait contemtores magist atuum ac [...]gum exi­stimari. E con­trario ait, nul­li adversus il­los gratiores sunt: nec immerito; nullis enim plus praestant, quam, quibus s [...]ui tranquillo otio licet. D'gna est, quae legitur, Epistola, ubi & hoc: Hujus pacis beneficium, ad omnes [...], al [...]us ad eos p [...]venit qui illa b [...]ne utuntur. peaceable life in all godliness and honesty. For this is good and acceptable in the sight of God our Saviour: who will have all men to be saved, and to come unto the knowledge of the truth. Here we are taught three things; That it is pleasing to God, Kings should become Christi­stians: That being made Christians, they should remain Kings; Wee pray [Page 26] (saith Justin Martyr) that Kings and Princes, together with their regal pow­er, may also attain unto a right under­standing; and in the Book entitled Cle­ment's Constitutions, the Church prays Nisi hic in­terpretari ma­lis, Christianum vitae exitum. Gr. [...]. Rom. 13. 4. for Christian Magistrates: Lastly, that this is also pleasing to God, that Chri­stian Kings should procure for other Christians a quiet life. How so? The Apostle sheweth in another place: He is the Minister of God to thee for good, but if thou do that which is evill, be a­fraid: for he beareth not the sword in vain: for he is the Minister of God, a revenger to execute wrath upon him that doth evill. By the right of the sword is understood all coercive power (as in the Lawyers sometimes) yet so, that the highest part of it, which is the true use of the sword, is not excluded. For the illustration of this place much light may be had from the second Psalm: which, although it were verified of David, yet more fully and perfectly pertains to Christ, as we learn out of the Acts and Acts 4. 25. 13. 33. Heb. 5. 5. the Epistle to the Hebrews. Now this Psalm exhorts all Kings to receive the Son of God with reverence, i. e. to do service to him, as they are Kings, as Au­gustin explains it well: whose words are to this effect, Herein do Kings, as Cont. Cres­con. Gram. l. 3 they are commanded, serve God as Kings; if in their Kingdom they command good things, forbid evill things, not only per­taining [Page 27] to humane society, but also to di­vine Religion. And elsewhere: How Ad Bonifac. Epist. 50. then shall Kings serve the Lord in fear, but by prohibiting with religious seve­rity, and punishing offences against the commands of the Lord? For he serveth one way as a man, another way as a King. Again: Herein therefore doe Kings serve the Lord, as Kings, when they do him that service, which none can do but Kings.

XV. The second Argument.

A Second Argument is deliver'd us by St. Paul in the place cited al­ready in some part, out of the Epistle to the Romans: where the highest power, Rom. 13. such as the regall is, is said to be of God, and is called the ordinance of God: whence it is inferr'd, that obedience and honour is to be given to it, and that from the heart: and he that resisteth it, resisteth God. If by Ordinance a thing were to be understood, which God only will not hinder, as in vicious acts, then would there follow thence no obligation either of honour or obedience, especially laid upon the conscience: nor would the Apostle say any thing, where he so much extols and commends this power, which might not agree to robbing and stealing. It follows therefore, that this power be conceiv'd to be ordained by [Page 28] the will of God approoving it: whence it further follows, that, seeing God wills not contraries, this power is not repug­nant to the will of God revealed by the Gospel, and ob [...]iging all men. Nor is this Argument avovded, because the persons that were in power when Paul wrote, are said to have been enemies to Christian piety: For first, that is not true of all. Sergius Paulus Propraetor Acts 13. 2. of Cyprus had given his name to Christ before this time: to say nothing of the King of Est Edessa in Osroene No­men Abea [...]i fre­quens illis locis. App [...]et ex nummis, Taci­to, Appiano. Dione, tum in pridem editis, tum in novis Excerptis, Ca­pitolino. Edessa, of whom there is an old tradition, grounded (as it seems) on truth, though perhaps a little mixed with fables. Moreover, the question is not of the persons, whether they were impious; but whether that fun­ction in them were impious: we say, the Apostle denys that, when he saith, the function, even for that time, was or­dained of God, and therefore to be ho­noured, even within the recesses and secrets of the heart where God alone hath Empire. Wherefore both Nero might, and that King Agrippa too, whom Paul so seriously invites to his Acts 26. Religion, might subject himself to Christ, and retain, the one his regal, the other his imperial power: a power, which without the right of the Sword and of Arms cannot be understood. As then of old, the Sacrifices according to the Law were pious, although administred by [Page 29] impious Priests; so Empire is a pious thing Bene hoc ex­sequitur ad hunc locum E­pist. ad Rom. Chrysostomus., although it be in the hand of an impious Prince.

XVI. The third Argument.

THe third Argument is from the words of John the Baptist, who being seri­ously asked by the Jewish Souldiers (many thousands of that Nation served the Romans in their Wars, as Josephus and other writers cleerly tell us:) what they should do, to avoid the wrath of God, He answered not, that they should for­sake VVar (as he must have answered, if that be the will of God) but abstain from violence and falshood, and be con­tent with their wages. To these words Luke 3. 14. of the Baptist, containing an approba­tion of VVar plain enough, many an­swer, The Baptists prescripts are so dif­ferent from the precepts of Christ, that we may conceive their Doctrine not to be the same. Which I cannot admit, for these reasons. John and Christ use the same beginning, and declare the sum of their doctrine in the same words, Amend your lives, for the kingdom of Hea­ven is at hand. Christ himself saith, the Mat. 3. 2. 4. 17. Kingdom of Heaven (i. e. the new Law, for the Hebrews use to stile the Law by the name of Kingdom,) began to be invaded from the days of the Baptist. Mat. 11. 12. John is said to have preached the Bap­tism [Page 30] of repentance for the remission o [...] Mar. 1. 4. Acts 2. 38. sins: just as the Apostles are said to have done in the name of Christ. Jo [...] requires fruits meet for repentance, and Mat. 3. 8. 10. threatens destruction to them that bring not forth such fruit. He requires works Luke 3. 2. of Love above the Law. The Law is sai [...] to have continued unto John: as if, [...] more perfect doctrine had from him be­gun. Mat. 11. 13. And the beginning of the Gospell is Mar. 10. 1. Luke 1. 77. Mat 11. 9. Luke 7. 26. Luke 2. 77. Luke 3. 18. deduc'd from John. John himself is there­fore greater than the Prophets: being se [...] to give saving knowledge to the people and to Preach the Gospell. Nor doth [...] any where distinguish Jesus from himse [...] by the difference of precepts (only th [...] things delivered by John more gene [...] ­ly, and confusedly, and in the mann [...] of rudiments, are more plainly and ful­ly declared by Christ, the true light: but by this, that Jesus was that prom [...] ­sed Messias: the King of a heavenl [...] Acts 19. 4. John 1. 29. Mat. 3 2. Mar. 1. 8. Luke 3. 16. Kingdom, who should give the powe [...] of the Holy Spirit to them that believe on him.

XVII. The fourth Argument.

THe fourth Argument seems to me [...] no small weight. If the Right [...] capital punishments, and of defendin [...] the people by force of Arms again [...] Robbers Chrysost. in Serm. ad pat. sidelem. Propter hos sunt judicia & leges & supplicia totque poenarum modi. and Spoilers, be taken away. thence will follow licence of wickednes [...] [Page 31] and a deluge as it were, and floud of e­vils: when as, although Justice be now executed, that stream is hardly kept within the banks. Wherefore, had it been the mind of Christ, to bring in such a state of things, as was never heard of, doubtless he would in most plain and express terms have commanded, that none should give sentence of death, that none should bear Arms: which com­mand he hath no where promulged: for, the alleged places are very general, or very obscure. Now equity and common reason shews, not only general words must be restrained, and doubtfull words commodiously explained, but the pro­priety and received use of words some­what declined, that a very incommodi­ous and incoherent sense may be avoy­ded.

XVIII. The Fift Argument.

FIftly, it can be evinced by no Argu­ment, that the Judicial Law of Mo­ses, expired before the destruction of Je­rus [...]lem, wherewith fell both the form, and the hope of that Common-wealth; for, neither is any term prefixed to that Law in the Law itself, nor do Christ or his Apostles ever speak of the Cessation of it, but as it may seem comprehended in the destruction of the Common-wealth, as we have said: yea, on the [Page 32] contrary, Paul saith, the High-Priest was set to give judgement according to the Law of Moses. Christ himself in the Acts 24. 3. preface to his precepts saith, He ca [...] not to dissolve the Law, but to fulfill it; the sense of which words, as to Ri [...]uals, Mat. 5. 17. is not obscure: for the lineaments and shadowings are filled up and complea­ted, when the perfect species of a thing is presented to our view; as to the judi­cial Laws, how can it be true, if Christ, as some do think, hath by his comming taken them away? But if the obligatior of the Law remained, as long as th [...] Common-wealth of the Hebrews stood it follows, that even the Jews converted unto Christ, if they were called un [...] Magistracy, could not shun it, and th [...] they ought to judge no otherwise tha [...] Moses had prescribed. Methinks, whe [...] I weigh all things, there is not the leaf [...] motive for any pious man, that hear [...] Christ at that time speaking, to under­stand his words in any other sense; Thi [...] I acknowledge, before the time of Christ some things were permitted, (whether in respect of outward impunity, or also of inward purity, I need not determine:) which Christ hath forbidden the Disci­ples of his institution, as, to put away ones wife for every cause, to seek reveng from the judg upon the injurious person [...] yet, between the precepts of Christ and those permissions, there is a certain di­versity, [Page 33] no repugnance. For he that keeps his wife, and remits the injury, doth nothing against the Law, yea he doth that which the Law wills most. 'Tis o­therwise with the Judge, whom the Law not permits, but commands to put the Murderer to death, himself becomming guilty of blood before God, unless in this case he shed it. If Christ forbid him thus to punish the murderer; his precept is plainly contrary to the law, he dissolv­eth the law.

XIX. The Sixt, Seventh, and Eighth Arguments.

THe sixth is from the example of Cor­nelius the Centurion, who received from Christ the Holy Spirit, an undoubted sign of his justification, and was Bap­tized in the name of Christ by the A­postle Peter: but, that he left his Office of War, or was advised by Peter to leave it, we do not read. Some answer, whereas he had instruction from Peter concerning Christian Religion, it is to be supposed that he was also instructed to desert his place. This were something, if it were certain and undoubted that Christ among the rest of his precepts had forbidden War. But, when that is no where else expressed, here at least was a fit place to say somewhat of it, that the age to come might not be ignorant [Page 34] of the rules of their duty. Nor is it the manner of Luke, where the quality of the persons required a special change [...] life, to pass it over with silence; as [...] may see elsewhere. The seventh Argu­ment, Acts 19. 19. like to this, is taken from th [...] which we began afore to say of Sergi [...] Paulus; for in the story of his conver­sion, there is no intimation of his [...] nouncing his office, nor of any adm [...] ­nition given him to do so. Now, th [...] which is not related, (as even now [...] said) when it is of most concernment, a [...] the place requires it, is to be conceive not at all to be done. The eighth m [...] be this, that Utitur hujus loci autorita­te Concil. A­fric. Quorum contra furorem possumu [...] non insolita nec à scripturis aliena impetrare praesi­dia, quando Apostolus Pau­lus, sicut in A­postolorum Act. fidelibus notum est, factiosorum conspirationem militari etiam submovit auxilio. Augustin. Epist. 154. ad Pub [...] Neque si in illa arma scelerati homines incidissent, Paulus in [...] sanguinis suum crimen agnosceret. Paul the Apostle havi [...] understood the Jews plot against him willed it to be revealed to the chief C [...] ­tain: Acts 23. and when the chief Capta [...] gave him a guard of Souldiers to sec [...] his journy, he accepted of it, maki [...] never a word to the Captain or [...] Souldiers, that God was not pleas [...] with resisting of force by force. And [...] Paul was a man, who would himself [...] mit, nor suffer others to omit, no occ [...] ­sion of teaching men their duty 2. Tim. 4. 2..

XX. The ninth, tenth, and eleventh Arguments.

NInthly, The proper end of a thing just and lawfull, cannot but be just lawfull. It is not only lawfull, but we have a precept obliging the conscience, Rom. 13. to pay tribute; And the end of Tribute is, that the publick powers may have wherewith to defray the charge upon them, for the defence of good men, and the coercion of the bad. Tacitus speaks Hist. 4. to our purpose, The quiet of the world Augustin. con­tra Faust. l. 22. c. 74. Ad hoc tributa praesta­mus, ut propter necessaria militi stipendium prae beatur. cannot be had without Arms, no Arms without Souldiers pay, nor pay without contribution. Tenthly, Acts 2. 5. 11. So also Acts 28. 18. For there was no cause of death in me. C. 2. 19. 20. Paul speaks thus, If I be an offender, or have com­mitted any thing worthy of death, I re­fuse not to die Justin Apol. 2. Ut autem puniantur, qui non convenien­ter praeceptis il­lis vivunt, & nomine solo sunt Christiani, & quidem à vo­bis, & nos op­ta [...]. Whence I collect, that in Paul's judgement, even since the pub­lication of the Gospel, there are some crimes, which equity alloweth, yea and requireth, to be punished with death. Which also Peter sheweth in the first of his Epistles. Had the will of God been so now, that capital judgements should cease, Paul might indeed have made an Apology for himself, but he ought not to have left in the minds of his hearers such an opinion, as this, that it was no less lawfull now than heretofore, to put offenders to death. [Page 36] Now, it being proved, that capital punishments are rightly used since the comming of Christ, it is withall proved, as I suppose, that some War may be law­fully waged, to wit, against a multitude of armed offenders, who must be over­come in battail, before they can be brought to judgement. For, the forces of offenders, and their boldness to re­sist, as in a prudent deliberation it ha [...] some moment, so it diminisheth nothing of the right it self. Lastly, the Law of Christ hath taken away the Law of Moses only, which was the partitio [...] wall between the Gentiles and the H [...] brews. Eph. 2. 14. Things by nature honest, and by the consent of civil nations, it is so far from taking away, that it hath com­prehended them all under the gener [...] precept of all honesty and virtue. But Phil. 4. 8. 1 Cor. 11. 13, 14. the punishment of crimes, and Arms to keep off injury are accounted laudable in their Nature, and are referred to the virtue of justice and beneficence. And here, on the by, we must note their er­ror, who draw the Israelites right to War, from this alone, that God had gran­ted to them the Canaanites Land. For this is not the only cause, though it be [...] just one. Before those times, men of piety, conducted by their reason, waged Wars: and the Israelites themselves af­terward upon other grounds, as David for the violation of his Embassadors. [Page 37] Besides, what any one possesseth by hu­mane right, is no less his own, than if God had made an immediate grant there­of; which right is not taken away (but confirmed) by the Gospel.

XXI. Objections answered. The first.

LEt us now also see, by what Argu­ments the opposite opinion under­props it self, that the pious Reader may more easily judge, which of the two is more firm and weighty. The first is u­sually brought out of Esay's prophe­cy Id de pace quae orbi con­tigit beneficio Romani Im­perii interpre­tatur Chrylost. oratione Chri­stum esse De­um: Neque vero praedictum tantum est, sta­bilem fore, im­motam, atque inconcussam banc religionem, sed cum ea ad­venturam orbi pacem, desituras illas in singulis civitatibus plurium potentias, regnaque ipsa, & unum fore super omnes imperium, ac cjus pleraque pacem habitura, contra quam ante fiebat, &c. & vid. Euseb. [...] praepar. l. 1. c. 10., who saith, it shall come to pass, Es. 2. 4. that the Nations shall beat their swords into plow-shares, and their spears into pruning-hooks: Nation shall not lift up sword against Nation, neither shall they learn War any more. But this prophecy, either is to be understood (as many o­ther) conditionally: Such shall be the state of things, if all people undertake and fulfil the Law of Christ; to which purpose God will suffer nothing to be wanting on his part: Sure enough it is, if all be Christians, and live Christian­ly, [Page 38] there will be no Wars Lactant: Quid fiet, si omnes in con­cordiam consen serint? Quod certe fieri pote­rit, si pernicioso & impio furo­re projecto inno­centes as justi esse velint. Justin. de Christianis. Non pugnamus in hostes. Pla­nè ut de Esse­nis Philo in Orat. Omnem bonum effe liberum: Nullum inter [...] reperias qui aut sacula, aut sagittas, aut gladium, aut galeam, out [...] cam, aut scutum fabricet; Nullum qui aut arma conficiat aut [...] nas. Simile est quod Chrysostomus ait ad 1 Cor. 13. 3. Si [...] inter bomines qualis oportet dilectio, nullas fore poenas capitales.: Or, it is to be understood simply and purely; and thus, experience tells us, this prophecy is not yet fulfill'd, but the impletion thereof, as also of the general conversi­on of the Jews, is yet to be waited for. Which way soever you take it, nothing can be inferred hence against the justice of Wars, so long as there are who suffer not the lovers of peace to live at peace, but offer violence and use force against them.

XXII. The second Objection answered.

OUt of the fift of Matthew sund [...] Arguments are deduced; which we cannot rightly judge of, unless [...] remember what was said afore: If Christ had purposed to take away all capital judgements, and the right of Wars, he would have done it in words most ex­press and special, by reason of the great­ness and newness of the matter: and the rather, because no Jew could think o­therwise, but that the Laws of Moses, pertaining to judgements and the Com­mon-wealth, ought to have their force upon the men of that Nation, so long [Page 39] as their state endured. This being pre­mised, let us weigh the places in their order. The second muniment of the ad­verse party is from these words, Ye have Mat. 5. 38, 39. heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not the in­jurious person (so the Gr. turns the ori­ginal word, Exod. 21 [...] ut & Lucas in Stephani oratio­ne: [...]..) But whosoever shall smite thee on the right cheek, turn to him the other also. Hence do some infer, that no injury is to be repelled or revenged; neither privately, nor pub­likely. But this is not the meaning of the words; for Christ speaks not here to Magistrates, but to those that are in­jured; nor doth he speak of every in­jury, but of such as a blow on the cheek: the following words restrain the gene­rality of the precedent. So likewise in the next immediate precept, If any man will sue thee at the Law, and take away thy coat, let him have thy cloak al­so Id ita ex­ponit Cypri­anus de pati­entia: Ut tuae oblata non re­petas. Irenaeus l. 4. c. 27. Tol­lenti tibi tuni­cam, remitte ei & pallium, sed non quasi nolen­tes fraudari contristemur; sed quasi volen­tes donaveri­mus, gaudea­mus. Et si quis te, inquit, an­gariaverit mille passus, vade cum eo alia duo, ut non quasi servus sequaris, sed quasi liber plaecedas. Etiam Libanius, qui Evangelia legerat, laudat non litigantes de chlamyde & tunica, in orat. de custodia reorum.: Not every sute before the judge or arbitrator is forbidden (let Paul be the Interpreter, who denies not all sutes, but prohibites the Christians to con­tend in the Courts of Heathens; and that after the Jews example, whose common saying it was, Whosoever brings the affairs of Israel before the stranger, [Page 40] pollutes the name of God:) but the will of Christ is, to exercise our patience, that we should not go to Law about things which may easily be repaired, as a Coat, or (if it so happen) the cloak also: but that, although our cause be good, wee should omit the prosecution of our right. Apollonius Tyaneus said, It was not Philostrat. 2. 15. the part of a Philosopher to contend a­bout a little money. The Praetor (saith Ulpian) approoves his doing, who would L. Item. si S. 1. & D. de al. en. jud. mut. cau­sa facta. content himself and sit down with the less of a thing, rather than be troubled with often sutes about it. For this mans dis­position, that cannot endure contention, is in no wise to be dispraised. What Ulpian here saith is approved by the best, the same doth Christ command, choosing the matter of his precepts from among the things that are most honest and m [...] approved. But, you may not colle [...] hence, that it is unlawfull for a Paren [...] or for a Tutor, to defend that before [...] Judge, without which the Children without which the pupils cannot to maintained. For the coat and cloak is one thing, the Lively-hood another. In Clement's Constitutions it is said of a Christian man, if he hath a sute, let him L. 1. c. 45. endeavour to end it, though he bear some damage. As in matters of morality, so here we say, these things do not consist in a point, but have a certain latitude belonging to them. So in that which [Page 41] follows, And whosoever shall compell thee to go a mile, go with him twain: Our Lord said not, a hundred mile, a journey that would take a man off too far from his own occasions; but one mile, or, if need be, twain: a walk, not very irksom. The sense therefore is, in these things which import no great in­commodity, we must not stand upon our own right, but yield, even more than another would require, that our pati­ence Justi [...]us A­p [...]get. 2. Quae dicit, huc pertinent, ut ad­versus ownes s [...]nus pttieates, [...], mini­me tracundi. and our benignity may be known unto all men. It follows, Give Just. Apol. eod. De com­m [...]icandi ve­ [...]ò facultatib. nostris eam e­gentibus, & ne­quid ad gl [...]iam aucupandam saciamus, hoe & dixit: Omni pe enti date, &c. Alioi, Com­munico [...] [...] ­stra omni [...]genli. 1 Tim 5. 8. 2 Cor. 8. 13. to him that asketh thee: and from him that would borrow of thee, turn not thou away. If you carry it on infinitely, and without measure, nothing is more hard. He that provideth not for those of his own house is worse than an infidel, saith Paul. Let us then follow the same Paul, the best interpreter of his Master's Law, who stirring up the Corinthians to exer­cise beneficence toward the poor of Jerusalem: Not, saith he, that other men be eased, and you burthened: but by an equality: that your abundince may be a supply Sen. de be­nefic. 2. Dabo egenti, sed ut ipse non egoam. Chrysost. in loc. Deus pro sacultote poscit, quatenus habet quis, non quatenus non habet. Q100 ut secte intelligatur accedant sequentia: Laudat quidem quod facultates exsuperat (nempe in Thessalonicensibus:) sed hos (Achaeos sc.) non cogit idem facere. for their want; which sense is also in Xenophon's Cyrus; What I shall see superfluous in my own estate will [Page 42] serve the necessities of my friends. The like equity must we use for the interpre­tation of that precept now in hand. The Hebrew Law, as it did indulge a liberty of divorce, to prevent the cruel­ty of Husbands toward their Wives; so also, for the restraint of private revenge, whereto that Nation was very prone, allowed the offended party a right, to exact, not by his own hand, but by the sentence of the Judge, a retaliation: a Law imitated in the 12. Tables. But Christ, a Teacher of more patience, is so Si membrum vupit, talio esto. far from approving that ardent desire of revenge in the person wronged, that he would not have some kind of injuries to be repelled, either by force, or Law. What injuries? Such as are tolerable; not, that patience is not laudable in the more Vid. Chry­sostomum di­cto jam loco. grievous, but he is content with a patience more limited. There­fore he puts the case in a stroke on the cheek, which endangereth not the life, maimeth not the body, but only signi­fies a certain contempt of us, which makes us nothing the worse. Seneca in his Book of a wise mans constancy di­stinguishes between an injury and a disgrace, The former, saith he, is by nature the more grievous: this is ligh­ter, and only grievous to the delicate, whereby they are not hurt, but offended. Again, Contumely is less than injury, [Page 43] which we may rather complain of, than return: which the Laws also have thought worthy of no revenge. The same Seneca a little after saith, The grief a­rising from disgrace, or an affront, is an affection comming from a meaness and lowness of the spirit, contracting it self for some word or deed against our repu­tation. In such a case therefore, Christ commandeth patience: to turn the o­ther cheek, is by an Hebraism, to bear patiently, as appears in Es. 30. 6. Jer. 3. 3. Praebere o [...] contumelios. Taci [...]. & Te­rentius. other places: and lest any one object that common sentence, To suffer one injury is to in­vite another, He addes, that we must rather bear Chrys 7. ad Rom. Haec e­gregia victoria, plus illi largiri quam velit, & fines improbae in illo lubidinis liberalitate propriae patientiae transcen­dere. a new injury, than repell the former: because there is no evill to us thence, but that which consists in a foolish Idem de statuis 1. Contumelia non ab inferentis animo, sed ex judicio eorum qui patiuntur aut fit aut perit. persuasion.

XXIII. The third Objection answered.

THe third Objection is taken from the words that follow in the same place of Matthew Mat. 5. 43. 44.: Ye have heard, that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you; and pray for them which despitefully [Page 44] use you and persecute you. Some there be that hold, this love and beneficence towards enemies and persecutors cannot consist with capital judgements or Wars. But they are easily refuted, if we do but consult with that saying of the Hebrew Law. It was commanded the Hebrews to love their Neighbour, that is, their fellow-Hebrew Cui par pro­selytus.: for so Levit. 19. 17, 18. the word Neighbour is taken there. Nevertheless were the Magistrates com­manded to put Murderers to death, and other capital offenders; nevertheless was the Tribe of Benjamin, for an abo­minable transgression, prosecuted in a just War by all the other Tribes; never­theless did David, who fought the Lord's battails, rightly recover the Kingdom promised him, from Isbosheth by Arms. Be it so then, that the signification of Neighbour is larger now, and conteins every man; for all are now received in­to common grace, no people are by God devoted and given up to destru­ction: yet will that be lawfull towards all, which was then lawfull towards the Israelites, who were commanded to be lov'd as well, as all men now. But, if you would have a greater degree of love to be commanded in the Evange­lical Law, let this be granted also, so that this be agreed on too, that all are not Tertul. adv. Mareion. 4. Secundus gra­dus bo ita [...] est in extraneos: in proximos pri­mus. Hiero­nym. adv. Pe­lag. dialo­go 1. Praecep­tum est mihi ut diligam inimi­cos, & orem pro persecutori­bus. Nunquid iustum est ut itae diligam, quast p [...]oximos & consanguineus; ut inter aemu­lum & necessa­rium nulla di­stinctio sit. equally to be loved, but a Father more than a foreiner. And so the good [Page 45] of an innocent person is to be prefer'd before the good of a nocent, the com­mon good above the private, by the Law of regular charity. Now, from the love and care of the innocent, Vid. Prov. 24. 11. both capi­tal judgements and pious Wars have their original. Wherefore, the precepts of Christ, concerning love and charity to every one, ought so to be fulfill'd, unless a greater and more just and ne­cessary point of charity will not suffer. That old saying is well known: To pardon all is cruelty, as much as to par­don none Sen. de Clem. 1. Tam omnibus ignos­cere, crudelitas est, quam nulli: Chrys. 1. ad Cor. 3. 12. &c. de paenis hum. agens: Non ex saevitia, sed, ex bonitate ta­lia faciunt ho­mines. Augu­stin: sicut est aliquando mi­sericordia pu­nicns, ita & crudelitas parcens. Valentinianus, Theodosius & Arcadius, in lege tertia, Cod. Theod de defensorib. Civit. Removeantur patrocinia, quae favorē reis & auxiliū sacinovosis impertinendo, matura­ri scelera faciunt. Totilas apud Procop. Got. 2. Peccare & prohibere poenas peccantium in pari pono. Joh. 4. 2. Exod. 34 6. Num. 14. 18. Rom. 2. 8.: Adde, that we are enjoyned to love our enemies after the example of God, who makes his Sun to shine upon the bad. Yet the same God exe­cuteth punishment, even in this life, upon some bad ones, and hereafter will severely punish all. VVhereby is also an­swered whatsoever is wont to be alleged here out of the precepts of Christian le­nity. For God is called gentle, mer­ciful, and long suffering: Yet do the Holy Scriptures set forth in sundry pla­ces the anger of the same God against the obstinate Vide hac de re Cyrillum lib. 5. cont. Julian., and his will to punish the ungodly: And the Magistrate is [Page 46] ordained the Minister of this wrath Moses is commended for his exceeding Rom. 13. 4. meekness: yet this same Moses puni­shed the guilty, and that with death We are often bid to imitate the meekness and patience of Christ: yet Christ [...] he, who did inflict most heavy judge­ments, Mat. 21. 44. 22. 7. Luke 19. 12, 14, 27. Chrysost. ad Rom. 14. nar­ratis malis ierosoly mo rum Christū esse qui haec secerit, audi ipsum prae­ci [...]entem, tum per parabolas, tum apertè & exsertè. upon the rebellious Jews, an [...] will at the day of judgement condem [...] the wicked according to their desert [...] Their Masters lenity was followed [...] the Apostles, who did nevertheless ma [...] use of the power Chryso [...] 1 Cor. 4. 21. Interficiam, mutilabo? Est enim ut lenitatis, [...] severitaus spiritus. Vide & Augustin. de serm. Dom. in mo [...] lib. 1. & alios quoscitat Gratian. 23. 8. given them from a­bove for the chastisement of ungod [...] ­men, as we read in severall 1 Cor. 4. 21. 1 Cor. 5. [...] 1 Tim. 1. 20. places.

XXIV. The fourth Objection answered.

THe fourth place, which is objected is, Recompence to no man evill fo [...] Rom. 12. 17, 18. &c. evill. Provide things honest in the sigh [...] of all men. If it be possible, as much [...] lyeth in you, live peaceably with all me [...] Dearly beloved, avenge Tertul. de pat. Quid mi­bi cum ultione, cujus modum regere non pos­sum per impa­tientiā dol [...]ris? not your selves but rather give place unto wrath, for [...] is written, Vengeance is mine, I will re­pay, saith the Lord. Therefore if thi [...] enemy hunger, feed him: if he thirs [...] [Page 47] give him drink; for in so doing thou shalt heap coals of fire on his head. Be August. Epist. 154. Hinc au­tem dictum est, non resistamu [...] malo, ne nos vindicta dele­ctet, quae alieno malo [...]aimum pascit. not overcome of evil, but overcome evil with good. But here also the same An­swer offers it self, which was given a­bove. For at what time it was said by God, Vengeance is mine, I will repay, at the same time were capital judge­ments exercised, and Laws written con­cerning Wars. Moreover, benefits are commanded to be done (even then) to enemies, being their own Country-men. Exod. 23. 4. [...]. These things notwithstanding, there were, as we have said, both capi­tal punishments, and just VVars upon the Israelites themselves. Wherefore, the same words or the like precepts, though of larger extent, are not now neither to be forced to such a sense: the less, because the division of Chapters is not from the Apostles, nor their age, but of much later time, for the more distinct reading, and easy allegation of the text. So, the beginning of the 13. to the Romans, Let every Soul be subject to the higher powers, and that which follows, was continued with those fore­going precepts against revenge. Now, in this dissertation Paul saith, the pub­like powers are Ministers of God, to execute wrath (i. e. punishment) upon them that do evil: therein most plainly distinguishing between vengeance for the publike good (which is administred [Page 48] in behalf of God, and is to be referred to the vengeance reserved to God;) and that revenge for private satisfacti­on, which he forbad in the former words. For, if you will have that ven­geance also which is expected for the publike good, comprehended in that in­interdict, what will be more absurd, than for the Apostle, when he had said we must abstain from capital judge­ments, presently to adde, The publike powers are ordained of God for this end, to exact punishments in his stead?

XXV. The fift, sixt and seventh Obje­ctions answered.

THe fift place which some make use of is in the second Epistle to the Co­rinthians: Though wee walk in the 2 Cor. 10. 3, [...]. flesh, we do not War after the flesh: For the weapons of our warfare are [...] Chrysosto­mus hoc loco intelligit, opes, gloriam, poten­tiam, eloquen­tiam, solertiā, [...]sationes, as­ [...]tationes, sal­lacias. carnal, but mighty through God [...] the pulling down of strong-holds, &c. Bu [...] this place makes nothing to the matter. For both the antecedents and conse­quents do shew, that by the name of flesh, Paul understands here the weak constitution of body, which came un­der their eyes, and in respect of which he was contemned. Hereunto Paul op­poseth his weapons, that is, the power given him, as an Apostle, to subdue the refractory, such as he used upon Elymas, [Page 49] upon the incestuous Corinthian, upon Hymeneus and Alexander. This pow­er, he saith, is not carnal, that is, weak: yea on the contrary, he asserteth it to be most mighty. What is this to the right of capital punishments, or of War? Yea, on our side, because the Church at that time was destitute of ayd from the pub­lick powers, Therfore had God raised up, for her defense, that prodigious power, which began afterward to fail about the time when Christian Emperours were gi­ven the Church, even as Manna ceased, when the Hebrew people were come into the fruitful Land. That which is alleged, Eph. 6. 11. sixtly, out of the Epistle to the Ephesians, Put on the whole Armour of God, that yee may be able to stand against the wiles of the devil: for we wrestle not against flesh and bloud, (supply, only, after the He­brew phrase) but against principalities, &c. This place, I say, speaks of the fight which belongs to Christians, as they are Christians, not, which they may have common with other men, upon certain occasions. The place of James which is urged, seventhly, From Iam. 4. 1. whence come Wars and fightings among you? come they not hence, even of your lusts that War in your members? &c. This conteins nothing universal: only it saith, the Wars and fights, whereby the disper­sed Hebrews were at that time miserably dashed to pieces, and beaten one by [Page 50] another (some part of which sad story is to be seen in Antiq. l. 18. cap. 12. & lib. seq. Josephus) had their rise from causes not commendable: a thing which comes to pass in our dayes also, as we see with grief Divitis hoc [...]tium est auri. nec bello suc [...], Fagious asta bat [...] [...]phus ante dapes. T [...]bul. Lucan [...] O prodigia [...], nun­quam [...] con [...] pa [...] tu. &c. Cic. de fi [...] 1. Ex ca­pioitalibus odia, dissilia, discordiae, seditiones, bella nascuntur. Mar [...], Tyr us. Nunc omnia bellis plena: ubique enim oberrant cupiditat [...], & per omnes terras excitant appetitum rerum alienarum. Dioge [...] dictum huc pertinet: Non enim ex his qui polentam edunt, [...] sures existunt, aut bellorum auctores. Hicronymus adversus Jo­vinianum 2. Diogenes tyrannos & sub [...]rsores urbium bellaqut [...] hostilia, vel civilia, non pro simplici victu olerum pomorunique, [...] pro carn um & [...]pularum deliciis asserit oxcitari. Polybius: [...] mus necessariis contentus, also ad saptendum Magistro non eget.. As for that which was spoken to Peter, They that take the sword shall perish by the sword, seeing it properly pertains not to War considered in common, but to private War (for even Christ himself gives this reason, why he forbad or neg­lected the defence of himself, because his Kingdom was not of this world) it shall be more rightly handled in its own place.

XXVI Of the opinion of the antient Fa­thers. The first Observation.

WHen the question is about the sense of a writing, both the following practice, and the authority of wise men is wont to have much value. This is a good rule in the interpretation of ho­ly Scripture. For it is not probable, that the Churches founded by the A­postles, [Page 51] did either suddainly, or all of them depart from those things, which the Apostles having briefly written, had explained more largely by word of mouth, or also introduced into the pra­ctice and use of Christians. Now, our opponents that fight against Wars, u­sually draw out unto their aid, some speeches of the antient Christians: to which I have three things to say. The first is this: No more can be collected out of those speeches, than the private opinion of the speakers, not the publick judgement of the Churches. It is more­over to be noted, that the Authors of those sayings love to go single, for the most part, and to teach somewhat of a higher strain, than others; namely, Origen and Tertullian; who yet are not very constant to themselves. For the same Origen saith, God hath given us a lesson in the Bees, That just and orderly Wars may be waged amongst men, if necessity require. And the same Ter­tullian saith, That it is good when Of­fenders are punished no man denies Idem Ter­tul. de anima. Quis non prae­serat saeculi [...]u­stitiam, quam & Apostolus non seustra gla­dio accinctum accinctum, que pro homine saeviendo religiosa est? Et ad Procons. Scapula: Non te terremus, qui nec time [...]us. Sed velim ut omnes salvos sacere pos­simus, monendo [...]. Potes & officio jurisdictionis tue fan­gi, & humanitatis meminisse, vel quia & vos sub gladio estis.. And he is at a stand concerning Warfare; for in his De Idolatria, he proposech the question, Whether Christians may turn [Page 52] Souldiers, and Souldiers Christians; Where he seems to incline to the opi­nion against War. But in his De coro­na militis, when he had disputed some things against warfare, presently he di­stinguishes those that were Souldiers be­fore their Baptism, from others that after Baptism enter into Arms. Plainly, saith he, their case is otherwise, whom Christian Religion found out after they were engag'd in the profession of Arms, as the Souldiers whom John admitted to his Baptism; as the most faithful Centurions, whom Christ commendeth, and whom Peter instructeth. Provided, that after their receiving of the faith Distinctio­nem quam hic de militia af­fert, alibi ad nuptias appli­cat, tum lib. de Monoga­mia, tum ex­hortatione ca­stitatis. and signing it, they forsake the War, as many have done; or else, by all means beware, they commit no offence against God. His opinion therefore was, that they continued Souldiers after Baptism: which certainly they would not have done, had they understood warfare to have been forbidden by Christ; no more than South-sayers, Magicians, and other professors of unlawfull Tertul. de idolatria. Ad ecclesiam non admittun­tur, qui artes exercent, quas Dei disciplina non recipit. Aug. de fid. & op. Meretrices & histriones & quilibet alii publica turpi­tudinis professo­res, nisi solutus aut diruptis ta­tibus vinculis, ad Christi sacramenta non permittuntur accedere. De histrione exem­plum vide apud Cyprianum Ep. 65. Arts, were permitted after Baptism to remain in their Art formerly professed. In the same Book, praising a certain Souldier, and one that was a Christian, he spa­reth not to exclame, and stile him, O militem in Deo gloriosam! a Souldier glorious in God.

XXVII. The second Observation.

OUr second Observation is, That the Christians have either disallowed or avoided serving in the Wars, by rea­son of circumstances and condition of the times, which would scarce permit Military orders to be executed without some acts repugnant to the Christian Law. In the Letters of Dolabella to the Ephesians, extant in Josephus, we see the Jews requested immunity from ex­peditions of War; because in such a mixture with strangers, they were not able to keep their legal rites with due observance: and because they were constreined to carry Arms, and make long marches upon the Sabbath dayes. For which causes, they obteined a dis­mission from L. Lentulus, as the same Josephus sheweth. He declares in ano­ther place, that when the Jews were commanded to depart the City of Rome, some of them were listed, others puni­shed for their refusal out of a reverence toward their own Country-Laws; for those reasons which we have mentioned: unto which sometimes a third was ad­ded, because they had a necessity impo­sed on them to fight against their own Country men. But, to take arms a­gainst those of their own Nation was great impiety, to wit, when their Coun­try [Page 54] men were persecuted, for observing the Laws of their Fathers. Nevertheless as often as the Jews could eschew these incommodities, they bare arms, eve [...] under foreign Kings; but, Joseph. 11. Historiae ant quae. persisting in their Fathers Ordinances, and living according to their prescript: which they were wont to secure themselves of, by agreement aforehand, as the same Jo­sephus testifieth. To these hazards [...] those most like, which Tertullian obje­cteth against serying in the Wars in his time: The ensign of Christ hath [...] Lib. de Idol. agreement with the ensign of the dev [...] nor the oath of God with that of man for the Souldiers were made to swear by the Gods of the Gentiles, J [...] Mars, and the rest. Again: shall a Chri­stian Lib. de cor. mi­luis. keep watch for the Temples, whi [...] he hath renounced, and eat there when the Apostle will not permit him? s [...] he guard those evil spirits by night whom he hath exorcised by day? a lit­tle after: How many other great off [...] ­ces may be viewed in the Camp-Offices which must needs be interpreted trans­gressions of our Law?

XXVIII. The third Observation.

THirdly we note, that the Christians of the first times were enflam'd with so great ardour to undertake all things which were most excellent, that they [Page 55] oft embraced divine Counsels for com­mands. The Christians (saith Athena­goras) do not go to law with them that by violence take away their goods. Sal­vian saith, it is the will of Christ, that we let go the things ab ut which is any controversie, that we may be acquitted of the sute. But this, so generally ta­ken, is perhaps a matter of Counsel, and of a more sublime and perfect way of life Concil. Carth. 4. E­piscopus nec provocatus de rebus tran [...] litiget. Ad [...] A bros l. 2. Off. c. 21. & Grego [...]. M. l. 2. Ind. 11. E­pist. 58., but not under any precise com­mand. In like manner, very many of the antients disapprove all oaths, with­out exception; yet Paul, in a matter of great consequence, used an oath. Tatian speaks of a certain Christian that refused the praetorship: and saith Tertullian, a Christian loves not to be made an Edile. So Lactantius will not let a just man (such he would have every Christian) go to War: neither would he have him go to Sea. And how many of the old Doctors dehort Chri­stians from Marriage? All which par­ticulars, suppose they be laudable, ex­cellent, very acceptable to God, yet are they not required at our hands by the necessity of any Law. And this is sufficient for the solution of objecti­ons.

XXIX. A Confirmation of the lawful­ness of War, out of the Antients.

NOw, that we may confirm our do­ctrine; first there are not wanting to us VVriters, and those of the more antient sort, who think both capital pu­nishments, and VVars which depend thereon, may lawfully be us'd by Chri­stians. For Clemens of Alexandri [...] saith, A Christian, if he be call'd to go­vern, will be like Moses, a living La [...] unto his subjects, and he will render [...] the good rewards, to the evil punish­ments. And elsewhere describing [...] habit of a Christian, he saith, it becom [...] him to go barefoot, unless perhaps he be a Souldier. In the Vid [...]tur scrip [...]usis li­ber fin ente sae [...]ulo secun­do. Constituti­ons L. 7. c. 3. which bear the name of Cleme [...] Romanus, we read thus: All kill [...] is not unlawful, but only of the innocent yet is that which is just reserved only [...] the Magistrates. But, private autho­rities being laid aside, let us come to the publick authority of the Church which ought to be of greatest weight I say then, that the Church never re­jected, nor excommunicated any for serving in the Wars; Which yet oug [...] to have been done, and would hav [...] been done, if War had been repugnan [...] to the new Testament. In the Con­stitutions L. 8. C. 22. now cited, that writer spea­king [Page 57] of such as antiently were wont to be admitted to Baptism, or rejected from it, saith: Let a Souldier requi­ring Baptism be taught to abstein from injuries and oppressions: to be content with his wages. If he observe these things, let him be admitted. Tertullian in his Apologetick speaking in the name of Christians; We go to Sea, and to War C. 42. C. 37. in your Company. A little before he had said: We are strangers, and yet we have filled all places, your Cities, Islands, Castles, Towns, Councils, yea your Camps also. In the same Book he had related, how by the prayers of the Christian Souldiers a shower of Rain was obtei­ned from Heaven to refresh the Army of Marcus Vide & Xi­philinum de hac historia. Aurelius Emperour. In his De corona he saith, That Souldier that threw away his Garland was more constant than his other Brethren; and sheweth, that he had many Christian fellow-Souldiers. Moreover, some Soul­diers were not wanting, who having suffered torments for Christ, even to the death, received from the Church the same honour with the rest of Martyrs; Among whom are remembred the three Companions of Paul Adde mili­tem quendam à Cornelio Baptizatum, cujus apud A­donē mentito.; Cerialis under De­cius, Marinus under Valerian, fifty under Aurelian; Victor, Maurus, and Valentinus the Master of the Souldiers under Maxi­mianus; Marcellus the Centurion about the same time; Sevorian under Licinius. [Page 58] Concerning Laurentinus and Ignatius Africans, these are the words of Cy­prian, Being Souldiers in the secular warfare, but spiritual Souldiers too, whilst they get the victory over the De­vil by the confession of Christ, they have obtained, by their passion, victorious palms and glorious Crowns of their Lord.

XXX. Further proof out of Ecclesiasti­cal History.

FRom the former testimonies it is evi­dent, what opinion the community of Christians had of War, even before the Emperours were Christian. If, in those times, the Christians were not willingly present at capital punishments, it may not seem a wonder, when for the most part Christians were the per­sons condemned. Adde hereunto, that in other matters also, the Roman Laws were harder than Christian lenity would suffer, as appears sufficiently, though we instance only in the Cujus aspe­rita [...]em miti­gavit Adrianus Imp. ut apud Spart [...]anum est. Asperis Romanorum legibus addi possunt quae servum nisi tortum testi­monium dice­re vetant. Silenian De­cree of Senate. But, after Constantine began both to approve and advance the Christian Religion, capital punish­ments did not therefore cease. Yea Constantine himself, among other Laws, made one about sowing up paricides in a sack: which Law is extant in the Tode Tit. de iis qui par. vel lib. occide­runt.: though otherwise in exacting punishments he was so gentle, that he [Page 59] is accus'd of too much Zonaras: Clementem se os [...]ndebat iis qui pravam vi­t [...]m deseruerant, quod diceret ab­scindendum membrum agro­tans ac putri­dum, ne sana contagio cor­rumpat, non id quod aut sana­tum jam sit, tue [...]. Vide & Eusebium. S. cut de nimia Constantini Christianos, ita de [...] aldi regis questos Dan [...]s a pud Saxonem Hi­storicum in­venias. lenity by some Historians. Besides, He had in his Ar­my very many Christians, as the Histo­ries do teach us, and inscribed on his Ensign the name of Christ. And from that time was the military oath chan­ged into that form, extant in Végetius: By God and Christ, and the Holy Spirit, and by the Majesty of the Emperour, next after God to be lov'd and honour'd by mankind. And at that time, among so many Bishops, of whom many had suffer'd very much for Religion, we do not read of any one, who deterred ei­ther Constantine wholy from capital punishments, and from War, or the Chri­stians from serving in the War, by threatning them with the wrath of God for the same: when yet there were very many most rigid keepers of Dis­cipline, and such as would not dissem­ble or pass by any thing that pertained either to the Office of the Emperours or of other men. Such a Prelate was Am­brose in the time of Theodosius, whose words are these: It is no sin to be a Serm. 7. Souldier; but, for a Souldier to fight for the spoil only, that's a sin. And in another place: Valour, which either in De Offic. l. 1. c. 27. War defends our Country from Barbari­ans, or at home defends the weak, or our friends from robbers, is full of justice. This Argument is to me of so much weight, that I require no more. Yet [Page 60] am I not ignorant, that Bishops Augustin. Officium sacer­dotis est inter­venire pro reis. In ejus Epi­stolis multa sunt hujus bo­nitatis speci­mina. of­ten, and the Christian people, by the [...] intercessions averted punishments, es­pecially the capital ones: and, that [...] custom was introduced, that persons who had fled unto the Church Vide Chry­sostomum 16. de Statuis. Concil. Au­relian. c. 3. le­gem Wisigo­thorum l. 6. tit. 5. 16. 9. tit. 2. 3. and taken Sanctuary, were not rendred without promise given to save their lives: and, that at Easter L. Nemo, C. de Episc. audientia., they should be deliver'd out of prison, whom their crimes had [...]aid there: But, whosoever, shall advisedly consider these, and such like things, will find, they are indeed signs o [...] Christian goodness, taking all occasion of shewing mercy, not argu­ments of a mind condemning all sen­tences of death upon capital offenders: wherefore, those benefits, and inter­cessions too, were tempered and limited by certain Quas vide apud Cassia­dorum. 11. 40. &c. inter alia de immunitate Ecclesiastica in Decreto. exceptions both of times and places.

XXXI. The twelfth Canon of the Nicene Council objected and answer'd.

SOme do here object against us the twelth Canon of the Nicene Council, which is to this effect: Such Simeon Ma­gister in ejus Canonis epito­me: Qui vi adhibita vis [...] sunt restit isse, sed ab impietate victi sunt, & militiam resum­sere, decem per annos abstine­antur. Eundem hujus Canonis sensum expri­munt Balsamo & Zonaras & Russinus l. 10. c. 6. as have been call'd by grace, that have shewed their first love and faith in throwing off their belt, and have afterward like Dogs returned to their vomit; some giving [Page 61] money and bribes to return into their place; let them lye among the penitents ten years, after they have been three years among the Hearers. But in them all must be observed the sincerity and measure of their repentance. For, they that by fear, and tears, and patience, and good works do shew their conversion to be without hyprocrisy, after they have fulfilled their appointed time of hearing, shall be admitted to the prayers of the Church, and afterward the Bishop may entertain some favourable thoughts con­cerning them. But, they that have in­differently and slightly taken their fall, and think it sufficient to their conversion, if they have but entred into the Church, shall without any dispensation fulfill the whole time appointed. The time it self of thirteen years is evidence enough, that no light or ambiguous fault, but some grievous and undoubted crime is here meant. And certainly 'tis no other than Quod princi­pale crimen, summus saeculi reatus dicitur Tertulliano de Idolatria: Gravissimum & extremum de­lictum Cypriane, Ep. 12. Idolatry. For the times of Lici­nius mentioned asore in the eleventh Canon, ought to be understood in this: as it often happens, that the sense of the Canons subsequent depends upon the precedent; for example, see the e­leventh Canon of the Eliberin Coun­cil. Now Licinius, as Eusebius relates, cashier'd the Souldiers that would not sacrifice Sulpitius Se­verus: Sane tum Licinius qui adversus Constantinum de Imperio certa­vit, milites suos litare praecepe­rat: abeuntes militia rejicie­bat. Ob hanc causam Valen­tinianus, quia Imperator postea sactus est, & sub Juliano ab­secit cingulum. Non dissimile est quod Victor is icensis narrat, mullos sub Ha­nericho R. mi­litiam tempora­lem abjicisse quia cum Aria­nismo connexa. to his Gods: which also Ju­lian after did: and therefore Victricius [Page 62] with others are read to have cast off the Belts for Christ's sake. So, in for [...] times, had one thousand one hundred and four likewise done in Armenia who are remembred in the Martyroso gies; and, in Egypt, Menna and H [...] ­sychius. And so, in the times of Licinius many cast off their Belts, of whom were Arsacius, named among the Confessors and Auxentius, afterward made B [...] ­shop of Mopsvestia. Wherefore they who touched in conscience had once left the Army, had no access unto [...] again, under Licinius, but by denyall of the Christian Faith. Which denyall because it was so much the more grie­vous, by how much their former a [...] did testify their greater knowledge [...] the divine Law, therefore are these Apo­states more grievously punished th [...] those mentioned in the former Canon who without peril either of life or for­tunes had renounced Christianity. But to interpret the alleged Canon of VVar­fare in general, is against all reason: for the History plainly shews, They, that had forsaken the Army under Li­cinius, and returned not unto it during his reign, lest they should violate the Christian Faith, had their choice given them afterward by Constantine, whe­ther they would be free from serving in the War, or else return again into their places: which, without question, many did.

XXXII. Leo's Epistle objected and answered.

SOme do also object an Epistle of Leo, which saith: It is contrary to the Ecclesiastical rules, after repentance, to return unto the secular warfare. But, we must know, in penitents, as well as in the Clerks and Monks, was requi­red a Christian life, not of an ordina­ry strein, but of a singular kind of pu­rity; that they might be as great ex­amples Leo Epist. 9. ad Rust. Illici­torum v [...]niam potistantem o­portet etiā [...]ul­tis licitis absti­nere. In Episto­la Episcoporum ad Ludovicum Regem legimus [...] Quilibet tanto à se licita de­bet abscindere, quanto se memi­nit & illioita perpetrasse. In Capit. Calvi: Tanto quisque masora quaerat bonorum operum lucra, quanto graviora sibi in­tulit damna per culpam: for correction of manners, as they had been afore of transgression. Likewise, in the most antient customs of the Church, commonly called the A­postolical Canons, that by this sacred name they might be the more reverently received, in the 82. Canon it is enjoy­ned: That no Bishop, Presbyter or Dea­con follow the War, and retein at once a Roman office and a sacerdotal Function. For let Caesar have the things that are Cesar 's, and God the things that are God's. Whereby it is manifest, VVar­fare was not interdicted such Christi­ans as did not aspire unto the honour of the Clergy. More than this, they al­so were Eusebius de­monstrationum l. 1. duplicem describit Christianerum vitam, aliam [...], aliam inferiorem, qui in hac sunt eos inter alia iis qui jusle militant agendo indicare. excluded from the Clergy, who after Baptism had medled either [Page 64] with Magistracies, or Offices of War, [...] may be seen in the Epistles of Syrici [...] and Innocentius, and in the Council [...] Toledo. The Clergy, we may be su [...] were chosen, not out of ordinary Chri­stians, but of those that had given te­stimony of a most exact conversation. Adde, that the military, and some of the civil offices brought with them a perpe­tual obligation; but, it was not fit th [...] the persons devoted to the Holy Mini­stry, should be diverted from it Vide Canone [...] Concilii Mogun­tini apud Gra­tianum, titulo, Ne clerici vel monachi. by any other daily care and labour. Wherefore the 6. Canon too ordains, That no Bi­shop, Presbyter or Deacon, administ [...] any secular charge: the 80. That [...] intrude not himself into publick admi­nistrations: and the 6. among the A­frican Canons, That he undertake nor the procuration Vide Epist. Hieronymi ad Nepotianum. of other mens affairs, or the defence of causes: and Cypri­an judgeth, it is unlawful such persons should be appointed In Epistola ad Presbyteros diaconos & ple­bem Furnis con­sistentem. Adde l. Generaliter, c. de Episc. & Clericis. Guardians.

XXXIII. The last proofs out of Church-story.

BUt for our opinion we have the ex­press judgement of the Church in the first Council of Arles, held under Constantine; the 3. Canon whereof determines thus: It seemeth good un­to us to keep them from Communion, who throw down their Arms in peace: [Page 65] that is, who forsake the War in the times when the Church is free from persecution; for the Christians under­stood this by the name of peace Tertullianus idolat [...]ia: Imo quomodo etiam in pa [...] milita­b [...] Idem de fu­ga persecutio­num: Nostrae: [...]ci quod est bellum quàm persicu [...]? Cy­prianus Episte­la 10. Quando ipsa ante [...] aler nostra Ecclesia pacem de mise­ricordia Domini prior sumscrit. Epist. 22. Cum Dominus coepe­ [...]it ipsi Ecclesiae pacem dare. E­pist. 31. Eccle­siae pacem su­st. nendam, i. e. exspectandam. De lapsis, Dis­ciplinam pax longa corrupe­rat. Sulpitius Severus: Anto­nino Pio impe­rante pax Eccle­siis fuit. Mox Interfectus dein­de a inis 38 pax christianis suit. E [...]n Constan­tini aetate: Exinde tranquillis rebus paceperfruimur. Et initio historiae. Vexalio­nesque pop. Christiani & mox pacis tempora., as ap­pears in Cyprian and others. Adde the example of the Souldiers under Julian, Christians of no mean proficiency, be­ing ready to bear witness to Christ even to the death; of whom saith Ambrose, The Emperour Julian, though an Apo­state, had Christian Souldiers under his command. When he gave them the word, Draw out for the defense of the Common-wealth, they obeyed him: but when the word of command was, Draw out against the Christians, then they acknowledged the Emperour of Hea­ven. And of the same resolution was the Thebaean Legion long before, which in the time of the Emperour Diocletian had receiv'd the Christian Religion from the hand of Zabdas the thirtieth Bishop of Hierusalem, and shewed forth an example of Christian constan­cy and patience memorable to all po­sterity, which we shall relate hereafter. Here it may susfice to set down that speech of theirs, which with solid brevi­ty expresseth the Duty of a Christian Souldier: We offer against any enemy in the world these our hands, which we [Page 66] think impiety to embrue with the bloud of innocent men. These our hands are expert to fight against wicked men and enemies, they know not how to cut in pie­ces pious men and those of our own Coun­try. We have not forgotten that we took up Arms for our Countrymen, not against them. We have alwaies fought for ju­stice, for piety, for the safety of the inno­cent: these have been hitherto the price of our perils. We have fought for Faith; which, how shall we keep with yon (they speak to the Emperour) if we preserve it not with our God? Basil, of the more antient Christians, thus, The slaugh­ters made in War, our Ancestors accoun­ted not for slaughters, having them ex­cused who draw the sword on behalf of piety and vertue.

XXXIV. That all private War is not unlawful, by natural Law.

THat some private War may be law­fully Ex. l. c. c. 3. waged, as to the Law of Na­ture, appears sufficiently by what hath been said above, when we shewed, it is not repugnant to the Law of Nature to repel force by force, and defend ones self from injury. But haply some may think it now unlawful, since the consti­tution of publick Courts of Justiee; for although these Courts be not from nature, but from humane Ordinance, [Page 67] yet seeing it is much more honest and becomming, and more conducible to mans quietness, that the matter should be tryed before an indifferent Judge, than that the parties themselves inte­ressed, who too often favour themselves overmuch, should execute what they think right, by force; equity and na­tural reason dictate to us, that it is our duty to observe so laudable an Institu­tion. Paulus the Lawyer saith: It is not to be granted to the parties to do that which may be done publickly by the Ma­gistrate, L. non est de R. 1 Cass. l. 4. Var. Epist. 4. lest it be an occasion of making a greater tumult. And the King Theodo­ricus Eundem vide in Edicto c. 10. & 124.: Hence it is, that the reverence of the Laws was found out, that nothing might be done by force, nothing by ones own impulse. For what difference be­tween the clamness of Peace and the con­fusion of War, if controversies be deter­mined by force. The Laws call it force, as often as any man requireth that which L. Exstat. D. quod metus. he thinks due unto him, not by course of Law. Certainly, it must be confes­sed, the licence permitted before the constitution of Courts of Justice, is much restrained since. And yet since, it some­times taketh place, namely, where pub­lick Justice is wanting: for the Law forbidding a man to seek his own other­wise than by course of Law, ought com­modiously to be understood with this clause, where Law and judgement may [Page 68] be had. Now, this is wanting either at the instant, or for continuance: at the Serv. ad 11. Aeneid. Injecere manum parcae. T [...]axe­runt debitum sibi. Et sermone usus est iuris, nam manus in­jectio dicitur, quoties nulla iudicis autori­tate, rem nobis debitum vindi­camus. instant, as, where the Judge cannot be waited for, without certain peril and loss: for continuance, either by right, or by fact. By right, if one be in places unpossest, as on the Sea, in a desert, in void Islands, and if there be any other places wherein there is no Government: by fact, if the Subjects do not acknowledge the Judge, or the Judge openly hath rejected the tryal of such a cause. That we have said, all private War is not repugnant to natu­ral right, even since the constitution of Courts of Justice, may also be made apparent from the Law given the Jews. where God speaks thus by Moses. If a thief be found breaking up, and be smit­ten that he die, there shall no bloud be shed from him. If the Sun be risen upon Ex. 22. 2. 3. Molin. disp. 100. sect. du­bium vero. him, there shall be bloud shed for him. Truly, this Law, so accurately distin­guishing, seems, not only to induce im­punity, but withall to explain natural right: nor seemeth it to be grounded in any peculiar divine mandate, but in common equity: Whence we see other Nations also have followed the same. That of the 12. Tables is notable, drawn no doubt, from the old Solonis ver­ba: Si quis de die quod plus quinquaginta drachmu vale­leat, suretur, eum jus sit ad undecim viros deduci; quod si quis noc [...] vel minimum quid suretur, etiam liceat vel occidere. Attic Law: [Page 69] If a thief steal by night, and be killed, he is iustly killed. So, by the Laws of all Nations, whom we have known, is he judged guiltless, who hath by arms defended his life against a vio­lent assault. This so manifest consent is testimony enough, that here is no­thing contrary to natural right.

XXXV. Nor by the Law Evangelical. Objections proposed.

COncerning the more perfect, volun­tary divine Law, that is, the Evan­gelical, there is more difficulty. That God, who hath more right over our lives than we have our selves, might have required of us so much patience, as to lay down our lives, and, when we are brought in danger by the assault of a private person, rather choose to be killed than to kill, I do not doubt. But, the que­stion is, whether it hath pleased him to oblige us so far, or no. On the affirmative part, are usually brought two places, which Mat. 5. 39. Rom. 12. 19. Ubi Latina versio habet, Non vos de­fendentes. we alleged afore upon the general questi­on. But I say unto you, resist not the inju­rious person: and Revenge not your selves, dearly beloved. There is a third place in those words of Christ Mat. 26. 52. to Pe­ter, Put up thy Sword into the sheath; for they that take the Sword, shall perish by the Sword. Some adde unto these, the example of Christ who dyed for his Rom. 5. 8, 10. [Page 70] enemies. Nor are there wanting a­mong the old Doctors, who although they disapproved not publick Wars, were nevertheless of opinion that pri­vate defense was forbidden. We have above set down some places of Ambrose for VVar; and more of Austin, and more clear, known to all. Yet hath the same Ambrose said: And perhaps ther­fore Lib. 10. in Luc. the Lord said to Peter, shewing two Swords, It is enough, intimating it was lawful until the Gospel came, which instructeth us in the truth, as the Law did in Justice. The same Father else­where: A Christian if he fall upon [...] armed thief, cannot strike him again De offic. 3. 3. that striketh; lest while he defends his safety, he offend against piety. And Augustin hath said: I do not indeed reprehend the Law which permitteth suc [...] Lib. 1. de Lib. arb. c. 5. Epist. 154. ad Publicolum. Cap. 43. & 55. (thieves and other violent assaulters) to be slain, but how to defend those the slay them I do not find. And elsewhere: As to killing of men, lest one be killed, I do not like that course, unless perhaps one be a Souldier, or bound by publick Office, that he doth not this for himself but others, having received lawful power. And that Basil was of the same mind, appears sufficiently out of his se­cond Epistle to Amphilochius Adde Conc'l. Aurelianensis canonem citat. à Gratiano c. ult. caus. 13. q. 2..

XXXV. The lawfulness of private defense confirmed.

BUt the opposite opinion, as it is more common, so it seemeth unto us more true, that an obligation is not laid up­on us to be so patient. For we are com­manded in the Gospel to love our neighbour as our selves, not above our selves: yea where equal evil is immi­nent, we are not forbidden to provide for our selves Cassiodorus de Amic. Sane nullus aliquo praecepto, vel aliqua ratione tenetur, salutem animae proximi perditione ani­mae suae; aut corporis ejus li­berationem, ci­tra spem perpe­tuae salutis, pro­prii Corporis in­teritu procurare. rather than for others, as we shewed above by the authority of Paul explaining that rule of benefi­cence. Some perhaps urge against us thus: Although I may prefer my own good before my neighbour's, yet this hath not place in unequal goods: wher­fore my temporal life is rather to be de­serted than the invader permitted to fall into eternal damnation. But thus it may be answered: He that is inva­ded hath oftentimes himself also need of time to repent, or hath some reason to think so; and that the assailant too may possibly find some space for repentance before his death. Besides, in a moral judgement, that peril seemeth not fit to be regarded, into which a man casts himself, and from which he may free himself, if he will. Certainly, some of the Apostles, even to the last times, Christ himself seeing and knowing it, [Page 72] scem to have made their journys ar­med with the sword: and that othe [...] Galileans travelling out of their Coun­try toward the City did the same, [...] reason of danger on the way from Rob­bers, we earn out of Josephus; VVh hath also deliver'd the same of the [...] senes, men most innocent and harmele [...] Hence it was, that when Christ said Luke 22. 36. the time was at hand, when he th [...] wanted a Sword should sell his gar­ment and buy one, presently the A­post [...]es answer'd (for there were non [...] but Apostles in that Company:) they had among them two Swords. More­over, that which Christ said, although in truth it conteins not any precept, but is a proverb, signifying very grea [...] dangers to be at hand, as appears plain­ly Vers. 35. by the opposition of the first [...] which was safe and prosperous; yet [...] it such, as is manifestly taken from the usual custom, and which the Apo­stles esteemed lawful. And surely [...] were not lawful to have Swords (they are the words of Cicero) if it be not law­ful in any wise to make [...]se of them.

XXXVI. The Objections answered.

THat precept of Christ, not to re­sist him that doth injury, is not more universal, than that which follows, Give to every one that asketh: which yet ad­mits [Page 73] of an exception; So that our selves be not too much burthened: yea, to that precept of giving, no restriction is added, but it is restrained only by the sense of equity, whereas the precept of not resisting hath its explication adjoy­ned by the example of a blow on the cheek; that we may understand our selves to be then precisely bound, in case the injury offer'd us be either a blow on the cheek, or equal to it; for other­wise it had been fitter to say, Resist not the injurious, but rather lose your life, than use your arms. In the words to the Romans, Avenge not your selves: for so it is, (not Defend not your selves:) as the [...]. 1 Judith 2. & 2. 1. Luke 18. 7, 8. 21. 22. 2 Thes. 1. 8. 1 Pet. 2. 14. Rom. 13. 4. 1 Thes. 4. 6. word is used in other places, and here the connexion manifestly shews: The words are these, Recom­pense to no man evil for evil: a description of revenge, not of defense, this. And Paul supports his precept with a place of Deuteronomy, Vengeance is mine, I will repay: where the word in Hebrew, translated Vengeance, hath properly that signification, and the sense of the place will admit no other. That speech of Christ to Peter, contains indeed a pro­hibition of using the Sword, but not in the case of defense: neither had he any need to defend himself: for Christ had spoken on behalf of his Disciples: Suffer these to go away: that his saying might be fulfilled; Of those whom thou Jo. 18. 8, 9. [Page 74] hast given me, have I lost none: [...] Christ; for he would not be defended. Therefore he addes in John, this cause of his prohibition, Shall I not drink [...] Vet. 11. the cup which my Father hath give [...] me? and in Matthew he saith, How then should the Scriptures be fulfilled which say these things ought to be done? Wherefore, Peter a man of a hot Spi­rit, was transported, itseems, with [...] mind of revenging, not of defending his Master. Adde, that he took arms against those that came in the name [...] the publick powers; Whom, whethe [...] in any case it be lawful to resist, is a pe­culiar question, to be handled by us hereafter. That which the Lord saith after, All they that take the sword, shall perish by the sword, either is a pro­verb taken from vulgar use; whereby is signified, that bloud draweth bloud, and so the use of arms is never without peril: or, it declares Quae Orige­nis, Theophyla­cti, Titi & Eu thymii sententia est., that we have no reason to prevent God in taking revenge, which he in his time will duly exact: just as in the Apocalyps, He that killeth with the sword, must be killed with the sword: Here is the patience and the faith Apocal. 13. 10. of the Saints. Wherewith agrees that of Tertullian: So bounteous a rewarder of patience is God; that if you commit Adeo satis ido­neus patientiae sequester Deus: si injuriam deposuer is penes eum ultor est; si dolorem, medicus; si mor­tem, resuscitator est: quantum patientiae licet, ut Deum habent debi­torem. Tertul. [Page 75] your injury to him, he is a Revenger; if your grief, a Healer; if your death, a Reviver. How great is the power of pa­tience, to have God himself a Debter to it? And withall, in these words of Christ, seems to be conteined a prophecy of the revenge, which was to be executed up­on the bloudy Jews by the sword of the Romans. To the example of Christ, who is said to have dyed for his enemies, it may be answered, That it is true, all the actions of Christ are full of vertue, and such as (so far as may be) it is laudable to imitate, and 'twill not want a reward: yet are they not all of such a sort, that they either proceed from some Law, or impose a Law on us. For, that Christ dyed for his enemies and the wicked, was not determined by any Law, but by agreement as it were, and special Covenant made with his Father: who, upon that condition, promised him not only the highest glory, but a seed to endure for ever. Besides, Paul Es. 43. 10. Rom. 5. 7. shews this to be a singular and unpa­ralleld act of Christ: and Christ com­mands 1 Jo. 3. 16. us to expose our lives to dan­ger, not for all sorts of men, but for those that are partakers of the same Discipline. As for the sayings produ­ced out of Christian writers, they seem partly to contein Counsel rather and a commendation of a more excellent way, than any strict precept; and partly are [Page 76] their own private opinions, not of th [...] whole Church. For in the oldest Ca­nons Can. 45. c. si vero: &c. signif., which are call'd the Apostles excommunication is not denounced [...] against him, who in a fray at the [...] stroke hath slain his enemy, Ob nimium calorem. for his too much heat and forwardness And Austin, whom we brought on the Ambros. l. 10. in Luc. O do­mine, cur me e­mere subes gla­dium, qui fe­rire me prohibes? Cur haberi praecipis, quem vetas promi? nist [...] ut sit parata defenslo, non ultio necessa [...]. other side, seems to go into this opi­nion, quaest. 84. in Exod.

XXXVIII. Publick War solemn, or less Solemn.

PUblick VVar is either Solemn by the Law of Nations, or less Solemn. What I here call solemn is commonly called just, in the same sense as a just Testament is opposed to Codicils Ita inter cives erant quaedam matrimonia non justa, non justi liberi. Paul. sent. l. 2. t. 19. Sic & libertas quaedam non justa. Sen. de vit. bea. c. 24.: not that it is not lawful for him that pleaseth to make Codicils, but because a solemn Testament hath, by the Civil Law, some peculiar effects. This is worth our observation, seeing many misunderstanding the word just, conceive all VVars to be condemned as unjust and unlawful, whereunto this appella­tion of just is not agreeable. That VVar, according to the Law of Nations, may be solemn, two things are requisite: first, that it be waged on both sides by [Page 77] his authority who hath the highest pow­er in the Common-wealth: Secondly, that certain rites be used, of which we shall speak in due place. One of these, because they are both required, without the other, doth not suffice. Publick War less solemn, may want those rites, and [...] waged against private persons, and [...]ave for the author any Magistrate. And truly, if the matter be considered without civil Laws, it seemeth that e­very Magistrate hath right to wage War, as for defense of the people committed to his charge, so for the exercise of ju­risdiction, if he be opposed by force. But because by War the whole Common-wealth is endangered, therefore by the Laws of all people almost, it is provi­ded, that War be not undertaken with­out the authority of him, whose power in the Common-wealth is highest. There is exstant such a Law of Plato's Ult. de leg. L. 3. D. adl. Jul. maj.; and in the Roman Law, it is called treason in him, who without the com­mand of the Prince hath waged War, or listed Souldiers and raised an Army. In the Cornelian Law brought in by L. Cornelius Sylla it was, without the com­mand of the people. In Justinians Code is exstant a Constitution of Valentinian and Valens: Nulli pror­sue nobis insciis atque inconsul­tis quorumlibet armorum movendorum copia tribuatur. None have leave to take any arms without our knowledge and di­rection. [Page 78] Pertinent is that of Au­stin Citat Gratian. c. 23. qu. 1. ex Lib. 22. c. 74. cont. Faust. Apud Heb [...]aeos bellum omne quod speciali Dei sussu sus­cipitur, vocatur Bellum pote­statum.: Natural order for preserving peace among men requires this, that [...] thority and counsel in undertaking [...] should remain in the Princes. But, [...] all sayings how universal soever [...] be interpreted by equity, so must [...] Law. For first, there is no doubt, [...] that 'tis lawful for one having juri [...] ­ction, by force of his Apparitors or [...] jeants to constrain a few disobed [...] persons, as oft as there is no need [...] greater power to that purpose, and [...] danger imminent to the Common-wealth. Again, if it be so present [...] danger, that time will not admit of con­sultation with him, who hath sup [...] power, here also necessity affordeth [...] exception. By this right L. Pin [...] Liv. l. 39. Governour of Enna a Garrison in [...] cily, having certain information that [...] Townsmen were falling off to the [...] thaginians, making a slaughter of then kept the Town. Without such nece­sity, to revenge the injuries which the King neglecteth to persue, a right of [...] ring is allowed to the Citizens by the bolder pen of Vict. deju. belli, n. 9. Molin. disp. 100 sect. idem Vict. Franciscus Victoria but his opinion is by others justly re­jected.

XXXIX. Of War waged by inferi­our Magistrates.

IN such cases, wherein the lower pow­ers have right to make War, the In­terpreters of Law do not agree, whe­ther that War may be called publick. Some say, Yea Ajala deju. bel. l. 1. c. 2.: some, No Innoc. c. olim de rest. spol. n. 8.. Certain­ [...]y, such VVars are publick, if by pub­ [...]ick we mean that which is made by the right of the Magistrate; and therefore, they that in such a case oppose them­selves against the Magistrates fall into the punishments of persons contumaci­ous against Superiours. But if publick be taken in the more excellent significa­tion for that which is solemn (as it is without controversy oft taken) those Wars are not publick, because to the plenitude of that right, both the judge­ment of the highest power, and other things are requisite. Nor am I mov'd with this, that in such contention also they are wont to take the spoil of the resisters and give it to the Souldier Livius D. loco.: for this is not so proper to solemn War, but it may have place elsewhere Vct. n. 29. Cajet. 2. 2. qu. 40. art. 1.. And it may also happen, that in an Empire of larger extent, the inferiour powers may have power granted them to begin a War: in which case, the VVar is sup­posed to be made by the highest Power; because, every one is judged author of [Page 80] that which he giveth another Commis­sion to do. That is more Controver [...] whether a conjecture of the will of th [...] highest, where there is no mandate, [...] sufficient. To me it seemeth not. For [...] sufficeth not to see, what would be the pleasure of him that hath the highe [...] Power, if he were consulted with in this conjuncture of affairs; but this is ra­ther to be considered, what he, wher [...] the matter admits delay, or is of doubt­ful deliberation, may desire should be done without consulting with him, if a Law were to be made about it. For, al­though in some particular fact the par­ticular reason ceaseth, which moves the will of the Soveraign, yet the univer­sal reason holdeth, which requires dan­gers to be withstood. VVhich cannot be, if every Magistrate draw unto him­self the judgement thereof. Justly there­fore Liv. l. 48. was C. Manlius accused by his Legats Or, Lieute­nants., because without command of the Roman people he had made VVa [...] upon the Gallo-Grecians; for, albeit the Legions of the Galli had served in the Army of Antiochus, nevertheless after the peace agreed on with Antio­chus, whether that injury were to be re­venged upon the Gallo-Grecians, was not at the pleasure of C. Manlius but of the people of Rome. That C. Caesar for carrying VVar against the Germans, should be yielded up to the Germans, [Page 81] was the sentence of Cato; not so much (as I conceive) regarding justice, as de­siring to acquit the City from the fear of an Usurper; for the Germans had given aid to the Gauls, enemies of the Roman people, and therefore had no reason to complain of injury done them, if the Romans had just cause of warring against the Gauls. And yet Caesar ought to have been content with the expulsion of the Germans out of Gallia, the Province committed to him, and not to pursue the Germans with War within their own bounds, especially without any appearance of danger thence, unless he had advised first with the people of Rome. So then, the Germans had no right to require him to be given up into their hands, but the people of Rome had right to punish him: just as the Carthaginians answe­red the Romans, Whether Saguntum wa [...] assaulted by private or publick Coun­sel, Liv. l. 31. we conceive is not to be made the question; but this, whether it was as­saulted justly, or unjustly: for to our selves is an account to be given by our Ci­tizens, whether he did it of himself, or by Commission; With you this alone is dis­putable, whether it vere a violation of the league or no. Cicero defends the action both of Octavius and Decimus Brutus, who on their own heads took Arms against Antonius. But, suppose [Page 82] Antony dese [...]ved hostile opposition, yet was the judgement of the Senate and people of Rome to be waited for, whe­ther it were for the good of the Common­wealth to dissemble what was done, [...] to revenge it; to come to conditions of peace, or go forth to War. For no man is compell'd to use his own right, which is often conjoind with hazard. Again, suppose Antonius be declar'd an enemy, App. c. 4. yet the deliberation was to be left to the Senate and people of Rome, by whose conduct especially they would p ease to make the War. Thus the Rhodians answer'd Cassius, when he demanded aid according to the league, that they would send him aid if the Senate wou'd command. Being admonisht by this example (and we may meet with more) let us remember not to approve of all things, though deliver'd by Authors of greatest name; for they often serve the times, or their affections, and bend the rule as occasion requires? wherefore [...] must take some pains in matters of this nature to clear the eye of our judgement, and examine things thorowly, and no [...] rashly draw into example what may rather be accounted capable of excuse, than worthy of our praise and imitation: Wherein some fall into pernicious er­rours. Now whereas it hath been said, that publick War is not to be waged unless by his authority who hath the [Page 83] highest power, to the understanding hereof, and of that question that is a­bout solemn War, and so to many other purposes, it will be necessary to under­stand what is that highest Power, and who have it: and so much the more necessary, because in our age learned men, every one having pursued that Argument rather according to the exi­gence of present affairs, than according to the Truh, have rendred the matter much more difficult, which of it self is not very easy.

XL. Wherein consisteth civil Power.

THe moral faculty of Governing a City Or, Com­mon wealth., which is stiled by the name of civil Power, is described in Dionysius Halicarnessensis by three especial notes, a right of creating Magistrates, a right of making and abolishing Laws, Servius ad 1. Aen. Omni di­tione. Rectius omni quam omnis: ut signi­ficet omni pote­state, pace, le gibus, bello. Lib. 4. Lib. 7. Lib. 2. a right of decreeing War and Peace; else­where he addes a fourth, Courts of ju­stice; and elsewhere the care of Reli­gion, and calling of assemblies. Others Thucydides civitatem, quae vere civitas est, vooat, [...]. express themselves otherwise. But if one will make an exact partition, he shall easily find all that pertains hither, so that nothing may be wanting or su­perfluous. For the Governour of a Ci­ty governs it partly by himself, partly by others. By himself he is either con­versant about universals, or about sin­gulars. [Page 84] About Universals, by making and abolishing Laws, as well about sa­cred (so far as the care of them belongs unto the City) as about civil affairs. This art is call'd by Aristotle archi­tectal. The singulars about which he is [...]. conversant, are either directly publick, or private, yet in order to the publick. Directly publick are Actions, as of Peace, War, Leagues; or Things, as Tributes and the like: Wherein is comprehen­ded also that eminent Dominion, which the City hath over the Citizens and their estates for the publick use. The Art a­bout these is exprest in Aristotle by the general name political or civil, and [...]. is also called the Art of consultation. Private things are such as are contro­verted between party and party, which it concerns the publick quiet to be de­termined by publick authority. And this Art is by Aristotle termed judicial. The things done by another, are dispat­ched [...]. either by Magistrates, or by other procurators, to which number Embas­sadors are to be referred. And in these particulars consisteth the civil power.

XLI. What Power is Highest.

THat is call'd the Highest Power whose acts are not under the right of another, so as to be made void at the pleasure of another humane will. When [Page 85] I say of another, I exclude him who en­joyeth the highest Power (who may change his own will) as also his Suc­cessor Cacheran Decis. pedem. 139. num. 6., who enjoyeth the same right, and therefore hath the very same pow­er. Let us now see, in what subject this highest power is. There is a com­mon subject, and a proper subject: as the common subject of sight is the body, the proper is the eye; so the common subject of the highest Power is a City, that is, a perfect society. We exclude therefore people or Countries that have yielded up themselves, or fallen to the dominion of another people, such as were the Provinces of the Romans: for these are not by themselves a City, as now we take the word, but less wor­thy members of some great City, as servants are members of the family. Again it comes to pass, that several Na­tions or Countries have one and the same head, which do nevertheless every one make up a perfect society by them­selves: for it is not in the moral body as in the natural; in the natural, one cannot be the head of several bodies; but in the moral, the same person, consi­dered in a divers relation, may be the head of bodies many and distinct. Wher­of this is a certain Argument, that the Royal Family being exstinct, the Em­pire Vict. de ju. belli, n. 7. returns to every people severally. So also it may happen, that more Ci­ties [Page 86] may be confederated one with ano­ther by a most close league, and make certain System, as Strabo uses to speak and yet, not any one of them ceases [...] retain the State of a perfect City: which is noted both by others, and by Ari­stotle in more places than one. [...] then, let a City, so understood as we hav [...] said, be the common subject of the high­est Power: the proper subject is a per­son, one or more, according to the [...] and customs of every Nation [...] apud Galenum lib. 6. de pla­cit. Hip. & Plat..

XLII. That the highest Power is [...] alwaies in the people.

HEre is first to be rejected their opi­nion, who will have the highest Power every where, and without ex­ception, to be in the people, so [...] they may restrain and punish Kings, as oft as they use their power amiss: which opinion, how many mischiefs [...] hath occasion'd, and may yet produce, if it be throughly en [...]rtain, every wise man sees. We oppose these Ar­guments against it. It is lawful for [...] every man to addict and yield himself into private servitude to whom he plea­seth, as appears both out of the Hebrew Ex. 21. 6. In­stit. de jure per­son. sect. Servi aut. Gell. l. 2. c. 7. Law and the Roman. Why then may not any people, being at their own dis­pose, give up themselves to one or more, so as to transcribe the right of gover­ning [Page 87] them wholy to their Ruler, no part of that right retained or reserved to themselves? Nor may you say, that cannot be presumed: for we do not here enquire, what may be presumed in a doubtful case, but what may be done in Gall. de Ar­rest. 1. 6. 22. & seq. point of right [...] vain also are here al­leged the incommodities that follow, or are possible; for what kind of Go­vernment soever you shall frame in your mind, you will never exclude all incommodities or hazards. You must be content, in every way, to take the good and evill Aut haec cum illis sunt haben­da, aut illa cum cumhls mit­tenda sunt. Com. Est ini­qua in omni re accusanda prae­termisses boni [...] malorum enu­meratie. Ci­cero. one among another. Now as there are many courses of life, one more excellent than another, and every man is at liberty among many to choose which he doth most affect; so may any people also make choice of what form of government they please: neither is the right to be measured by the excel­lency of this or that form (for divers men have divers judgements hereof) but by their At the same time the City Augusta peti­tioned Charls the Emperour, that the De­crees of their Senate might not be of force without the consent of the Masters of the Curiae; when Norimberga desi­red the plain contrary thing. will. And indeed there may arise many causes, why the peo­ple may abdicate from themselves the whole right of commanding, and give it to another, viz. because being brought into danger of their life, they can find no other way to preserve them­selves; or because being opprest with [Page 88] want, they can have no sustenance or [...] other terms. For if the Campanians [...] old, being subdued by necessity, subje­cted themselves [...] Falisei apud Liv. l. 5. Samuites, l. 8. Ste Epida [...] à Coreyr [...] de­serti Corini [...]is se [...]runt, ut protegerentur. Thucyd. l. [...]. Popusum Cam­panum, urbem que Capuae, a­grns, delu [...] a Deû [...], divina [...] aque om­nia, in vestram P. C. dutonem dedtmas. to the Roman people in this form: The people of Campania, and the City Capua, our Lands, the Temples of our Gods, all divine and hu­mane things, we yield up into your hand, O ye Con'cript Fathers: and fund [...] people when they desired to subj a themselves to the dominion of the Ro­mans Et Veneto­rum. Bembus lib. 6 were not accepted, as [...] saith: what hinders, but that a people after the same manner may yield up [...] self into the hand of one propotent and over-mighty man Apud Virgi­lium legimus, Nec cumse sub leges pacis int­qua Tradiderit regno.? Moreover, it [...] happen, that some Father of a Fami­ly, possessing a large estate of Lands may please to receive no inhabitant [...] to his possession, but upon such cond­tion: or, that some Master having [...] great number of servants may manu [...] and set them at liberty, on conditio [...] that they be subject to his Government and pay him tribute. VVhich cases [...] not without their examples. Tacit [...] concerning the servants of the Ger­mans, saith, Every one is Master of his own house and estate: The Lord impi [...] ­seth and requireth of them (as his far­mers) a rent of Corn, or Cattle, or cloths; and the servant so far is sub [...]ect. Adde, that as Aristotle hath said, some [...] are by nature servants, i. e. fit for ser­vitude; [Page 89] so also some Nations are of this disposition, that they know better how to be ruled, than how to rule: Which the Cappadocians seem to have thought of themselves, who preferred the life un­der Strabo. 12. Justin. 38. a King before the Liberty offer'd them by the Romans, and affirmed, they could not live without a King. So Phi­lostratus, Lib. 6. in the life of Apollonius, saith, It is a folly to bestow Liberty upon the Thracians, Mysians, Getes, which they would not gladly accept. And more­over, some might be moved by the exam­ples of those Nations, which for many ages lived happily enough under a Go­vernment plainly regal Sen. de be­nef. l. 2. c. 20. de Bruto lo­cutus: Mthi, cum vir mag­nu [...] fuerit in ali­is, in bac re vi­detur vehemen­ter [...], nec ex institutione Stoica segestsse: qui aut Regis nomen extemu­it, cum optimus civitatis status sub Rege iusto sit; aut ibi spe­ravit libertatem futuram, ubi tam magnum praemium erat & imperandi & serviendi; aut exillimavit civitatem in priorem sormam posse revocari, amissis pri­flinis moribus; futur amque ibi aequalitatem civilis juris, & staturas suo loco leges, ubi vide at tot millia hominum pugnantia, non an ser­virent, sed utri. Vide & Bizarrum hist, Genuensi. l. 14. p. 329.. The Cities Sic multos ex liberis Graeciae Civitatibus in Salamma Cypri, quod Evagorae regnum erat, venisle narrat Isoc ates. under Eumenes, saith Livy, would not have changed their fortune with any free City whatsoever. L. 42. Some­times also the State of the Or, Common-wealth. City is such, that it cannot be safe, unless under the free Empire of Dion apud Philostrat. 5. 11. Met [...] ne Ro­mani longis dominatibus edomiti nullam jam ferre passint mutationem. One: which conceipt many prudent men had of the Roman, as the case stood in the time of Caesar Augustus. For these causes therefore, and the like, it may not only possibly, but [Page 90] doth usually come to pass, that men sub­ject themselves to the Empire and pow­er of another: which also Cicero notes in the second of his offices.

XLIII. The same further proved.

FUrther yet, by a just War (as we have said afore) as private dominion may be acquired, so also civil dominion, or the right of reigning without depen­dence. Neither do I speak this only in behalf of the Empire of One, where that is receiv'd, I would not be so mi­staken: but the same Arguments are of force for conserving the Empire of ma­ny, where many nobles or states have this same right of supreme power, and govern the City, the Plebeians being excluded. What, that no Common-wealth hath ever been found so popu­lar, wherein some, such as are very poor or foreigners, and also Women and Youth are not kept from publick Counsels? Besides, some Sie Samii [...]lta in conti­nents oppida tenuere, ut S [...]abo docet lib. 14. Sex op­pida Halicar­nasso attributa per Alexan­drum magnum, memoral Pli­nius Histor. nat. l. 5. c. 29. Idem lib. 33. cap. 4 Lindum insula [...] ait esse Rhodiorum. Tantundem de Caun [...] habes, lib. 35. Testatur idem Cicero Epist. ad [...]. Rhodiis iisdem, quod Romanos contra Antiochum ju­vissent, complures urbes dono datu [...] ait Eutropius lib. 3. nempe Ca­rum & Lycio [...]um, quae rursus eis ablatae à senatu. Utrumque est in exceptu Polybii. States have other people under them, not less sub­ject, than if they did obey Kings. Whence that question, Is the Collatin [Page 91] people in their own power? and the Cam­panians, when they had yielded up themselves to the Romans, are said to be under the power of others. Many are the examples to this purpose; and they are all of no value, if we once grant this, that the right of ruling is al­waies subject to the judgement and will of them who are ruled. But on the con­trary, it is evident both by sacred and prophane history, that there are Kings Deut. 17. 14. 1 Sam. 8. 4. 1 Sam 9. 16. 10. 1. 15. 1. 2 Sam. 5. 2. 1 Reg. 4. 1. Ps. 144. 2. Luke 22. 25. that are not inferiour to the people, though taken all together. If thou shalt say, saith God speaking to the people of Israel, I will set a King over me: and to Samuel, Shew unto them the right of the King that shall reign over them. Hence is a King called, the A­nointed over the people, over the in­heritance of the Lord, over Israel: Sa­lomon King over all Israel. So David giveth thanks to God, for subduing his people under him. The Kings of the Nations, saith Christ, bear rule over them. And that of Horace Regum timen­dorum in pro­prios greges; Reges in ipsos imperium est Jovis. is well known:

Seneca thus describes the three forms Ep st. 14. In­terdum populus est quem timere debeamus; interdum, si ea civitatis disciplina est, ut plurima per sena­tum tran [...]gantur, grati [...]si in ea timentur viri; interdum singuli quibus potestas populi & in populum data est. of Government: Sometimes the peo­ple [Page 92] are they whom we ought to fear; some­times, if the Discipline of the Common-wealth be so, that most things be trans­acted by the Senate, the gracious men therein are feared; sometimes single persons to whom the power of the people and over the people is given. Such are they who, as Plutarch saith, have a command not only according to the Laws, but over the Laws also; and, in Herodotus, Otanes thus describes a single Empire: to do what one pleaseth, so as not to be accomptable to any other; 3. Pol. 14. and Dio Prusaeensis defines a Kingdom; to have command without controul. Pausanias Messenicis. opposes a kingdom to such a power as must give account to a supe­riour. Aristotle saith, there are some Kings with such a right, as else where the Nation itself hath over it self, and that which is its own. So, after that the Ro­man Princes began to take upon them Institut. de jure nat. sect. sed & quod. an Authority truly regal, the people is said to have conferred upon them all their Authority and power, and that o­ver themselves, as Theophilus interprets. Hence is that saying of M. Antonius the Philosopher: None but God alone can be Xiph. vita M. Ant. l. 4. judge of the Prince. Dion. of such a Prince: He is free, having power over himself and the Laws, that he may Lib. 53. do what him pleaseth, and what likes him not, leave undone. Such a king­dom was of old that of the Inachidae a [...] [Page 93] Argos In Argiva Trag. Suppli­cibus, sic [...]op­regen. regen [...] Aes [...]hy­lum: Tu res populi, tuque [...] tota es, Non judictu subditus [...], Regni [...] sul­tus ut ara, Vno­que regent cun­cta arbitrio.; far different from the Atheni­an Common-wealth, where Theseus Rex ipse Theseus apud Euripid., as Plutarch tells us, acted only the part of a General, and Guardian of the Laws, in other respects not superiour Thesei filius Demophon a­pud eund. Nec enim potestas barbarum in morem mihi, Sed justa refera obsequia, dum juste impero. to the rest. Wherefore, Kings subject to the people are but improperly cal­led Kings: as after Lycurgus, and more, after the Ephori were established, the Kings of the Lacedemonians are said Polyb. l. 4. Plut. in Cle­om. Cornel. Nep. Verba ipsius aut quisquis is est qui vitas illustres scripsit, in Agesilao: Vt duos haberent Reges nomine magis quam imperio. Alibi: Lacedaemoniorum autem Agesilaus nomine non potestate suit Rex, sicut caeteri Spartani. to have been Kings in name and title, not really and indeed. Which exam­ple was also followed by other States in Greece. Pausanias Corinth. The Ar­gives in love of equality and liberty have —Haec juris sui Parere domi­no civitas uni negat: Rex ipse populus annuas mandat vices Honoris huic illive.— long since very much abated the regal power, so that they have left the Sons of Cisus, and his posterity, nothing beside the name of a Kingdom. Such Kingdoms Aristotle saith, do not make any proper kind of Government, because they only are a part in an Optimacy or Populacy. Moreover, in Nations that are not perpe­tually subject unto Kings, we see exam­ples as it were of a Kingdom tempo­rary Livius Salinator in censura omnes tribus except â unâ ararias fecit, ac sic ostendit jus sibi esse in populum [...]neur., which is not subject to the peo­ple. Such was the power of the Amy­mones among the Cnidians, and of the Dictators among the Romans in the first [Page 94] times, when there was no appeal [...] the people: whence the Dictators E­dict, as Livy saith, was observed as [...] Oracle, and there was no help but [...] their care of obeying it: and the force of the regal power, was besieged with the Dictatorship, as Cicero speaketh.

XLIV. Arguments to the contrary answered.

THe Arguments brought on the con­trary part are not hard to be solved. For first, that they affirm the Constitu­ent to be superiour to the Constitutel is true only in that constitution whose effect perpetually depends on the will of the Constituent; and not in that which at first proceeds from the will, but afterward hath the effect of necessi­ty: even as a woman makes to her self a husband by consent, whom she must of necessity obey for ever. Valentinian the Emperour, to the Souldiers who had made him so, when they asked somewhat of him which he thought un­reasonable, gave this answer Sozom. hist. Eccl. lib. 16. Verba ejus sic refert Theo­doretus l. 4. c. 5 Vestrum sun, milites, cum Imperator nullus esset, mihi tradere Imperii hujus hab [...] ­nas, eas ex quo adeptus sum; de catero non vestrum sed meum dispi [...] quid reip. expediat.: To elect me to rule over you, was in your power, O my Souldiers, but since you have e­lected me, the thing you ask is at my plea­sure, [Page 95] not yours. You as subjects ought to obey, I must consider what is fit to be done. Besides, the Assumption is not true, that all Kings are constituted by the people: which may be sufficiently understood by the examples of a Father of a family admitting Tenants on con­dition of obedience, and of Nations o­vercome in War, which above are men­tioned. Another Argument they draw out of that sentence of Philosophers; All Government is for the benefit of them that are govern'd, not of them that do govern: Whence they think it follows from the Nobilitie of the end, that the Governed are superiour to the Gover­nour. But, neither is that universally true, The good of the governed is the end of all Government: for some Go­vernments are by themselves for the Ru­lers sake, as that of a Master: for the servants profit is there extrinsecal and adventitious; even as the Physicians F [...]e pertains nothing to the Medicine it self. Other Governments there are for mutual benefit, as the Husband's. So, certain Empires may have for their end the utility of the Kings; namely, such as are gotten by conquest, and are not therefore to be called Tyrannical, seeing Tyranny, as the word is now taken, in­cludes injustice. Some also may respect as well his utility that rules, as his that is ruled; i. e. when an impotent people [Page 96] set over themselves a potent King [...] their defense. Yet do I not deny, that in many Empires is properly respe­cted the profit of the subjects; nad true it is, which Cicero after Herodo­tus, Herodotus after Hesiod hath de­liver'd, That Kings were constituted to the end justice may be had. And yet, it doth not follow thence, what they infer, that the people are superiour to the King; for tutelage also was found out for the Pupils good, yet is tuition a right and power over the Pupil. Nor is the objection of any moment, if [...] say, the Tutor may be put out of his charge upon mal-administration of the Pupils estate, and therefore the same must take place upon the King: for this holds in the Tutor, who hath a Supe­rior; but in Empires, because a progress in infinitum is not granted, we must by all means make a stop in some per­son or persons, whose faults, because they have no Superior Judge, God him­self Jer. 25. 12. testifies that he takes into his pe­culiar cognizance. And he either doth justice upon them, if he judgeth it to be needfull, or else forbeareth them for a punishment or tryal of the people. Excellently saith Tacitus: As drougth Tacitus: Que­modo sterilita­tem aut nimios imbres, & cae­tera naturae mala, ita luxum vel avaritiam dominantium tolerate. Vitia erunt donec homines; sed neque haec continua, & [...] Interventu pensantur. or excessive rain and other evils of nae­ture, [Page 97] so bear ye patiently the luxury or avarice of Rulers. Vices will continue as long as there are men: but, neither are they continual, and they are recom­pensed by the intermixture of better things. And it was a good saying of M. Aurelius: Magistrates judge of private persons, Princes of Magistrates, God of Princes Xiphilin: Desummo prin­cipatu Deus so­lus potest judi­care. Vitigis rex apud Cas­siodorum Cau­sa regiae pote­statis supernis est applicanda judiciis, quan­doquidem illa è coe [...]o petita est, & soli coelo de­bet innocentiam. A pud eundent Cassiodorum rex: Alteri subdi non pos­sumus, quia judices non ha­bemus.. Notable is the place in Gregorius Turonensis, where that Bi­shop thus addresses himself to the King of France: O King, if any one of us go beyond the bounds of justice, he may be corrected by you: but if you exceed, Who shall chastise you? For we speak unto you, and you hear us, if you will; but if you will not, who shall condemn you, but He who hath pronounced Him­self to be JUSTICE? Among the doctrines of the Essens, Lib 5. Porphyry remem­bers this: That Empire falleth not to any man without Gods Homerus: [...]. Ab Jove summus honos. D [...]odorus Sic. l. r. de Aegyptiis. Existimant enim non sine divina quadam providentia pervemsse Reges ad summam de omnibus potestatem. Augustin. l. 5 de Cl. D. Qui Vespasiana vel patri vel silio, suavissimis Impp. ipse & Domitiano crude [...]ssimo; & ne per singulos ire necesse sit, qui Constantino, ipse Apostatae Julia­no: nempe, majestatem dedit, quod [...]. Vit [...]is apud Cassiodorum: Omnis provectus, maxime Regius, ad divinitatis [...]nera reserendus est. Titi Imperatoris erat dictum, Potestates fato dari. especial care, Irenaeus very well: By whose appoint­ment men are born, by his appoint­ment also Kings are constituted, fit for the people, who in those times are go­govern'd [Page 98] by them. There is the same sense in the Constitutions which are call'd Clement's: Thou shalt fear the [...]. b. 7. c. 17. King, knowing that he is chosen by the Lord. Nor doth it overthrow these things which we have said, that we read the people punished sometimes for 2 Sam. 24. 17. the sins of their Kings: for this cane not so to pass, because the people dd not punish nor restrain the King, but because they did, at least tacitely, con­sent to his faults. Nevertheless it is certain too, without that, God might use his supreme dominion, which he hath over the life and death of every one, for to punish the King; whose punishment indeed it is, to be deprived of his Sub­jects.

XLV. Of mutual Subjection.

OThers there are, who feign un [...] themselves a certain mutual sub­jection, so that the whole people ought to obey the King governing well; and the King governing ill, ought to be sub­ject to the people. These men, if they did say, Things manifestly unjust are not to be done at the Kings command, would speak a truth, which is acknow­ledged among all honest men: but this includes no coaction, or right to com­mand the King. And, had it been the purpose of any people to divide the [Page 99] power with the King (of which we shall say somewhat hereafter) such bounds surely ought to have been as­signed to either power, which might easily be distinguisht by the difference of places, persons, or affairs. But, the goodness or illness of act, especially in civil matters which oft have an obscure disceptation, are not fit to distinguish parts. Whence very great confusion cannot but follow, whilst under pre­tence of a good or evill act, on the one side the King, on the other side the peo­ple draw unto themselves, according to their right of power, the cognizance of the same matter. Such a perturbation of things, so far as I can remember, ne­ver any people was so phantastick as to introduce.

XLVI. Cautions for the understanding of the true Opinion. The first.

FAlse opinions being removed, it re­mains that we set down some cau­tions, that may open a way to make a right judgement, to whom the right of supreme power in every Nation be­longs. Our first caution is, that we be not deceived with the ambiguous sound of a name, or the shew of external things. For example, although among the La­tins principality and Kingdom are wont to be opposed, as when Caesar saith, the [Page 100] Father of Vercingetorix held the prin­cipality of Gallia, but was slain for af­fecting the Kingdom; and when Pisi in Tacitus calls Germanicus the Son of a Prince of Romans, not of a King of Parthians; and when Suetonius saith Caligula wanted but a little of turning the principality into a Kingdom; and when Maroboduus is said by Velleius to have embraced in his mind, not a prin­cipality consisting in the will of those that obey, but a regal power: Never­theless, we see these names are often times confounded; for, both the Lace­daemonian Leaders of Hercules posteri­ty, after they were subject to the Epho­ri, were yet stiled Kings, as we have said afore; and the antient Germans had Kings, which, as Tacitus speaketh, were Soveraign by the authority of per­swading, Lib. 1. not by the power of comman­ding. Lib. 15. Cap. 7. And Livy saith of King Evander, that he ruled by authority rather than command: and Aristotle and Poly­bius call Suffetes King of the Cartha­ginians, and Diodorus too, as also Han­no Lib. 13. is called King of the Carthaginians by Solinus. And of Scepsis in Troas Sic qui vitam scripsit Anni­balis: Vt enim Rome consules, sic Carthagine quotannis annui bini Reges creaban­tur. To these improperly stiled Kings may be added the Sons of Kings, to whom that royal name was given by their Fathers, retaining the power in themselves. Such was that Darius, whom his Father Artaxerxes caused to be judged and put to death. Plutarch. Artax. [Page 101] Strabo relates, when having joyned to them the Milesians into one Common-wealth, they began to use a popular Government, the posterity of the old Kings retained the royal name & some­what of the honour. On the contra­ry, the Roman Emperors, after that o­penly and without any dissimulation they held a most free regality, yet were stiled Princes. Moreover, Princes in some free Cities have the Ensigns and marks of royal Majesty given unto them. Now, the Assembly of the States Pralati, nyoce­res, missisque potentibus ur­bes, ut Gun­therus loqui­tur., that is, of them that represent the people distributed into classes, in some places indeed serve only to this purpose, that they may be a greater Council of the King, whereby the com­plaints of the people, which are oft con­cealed in the Privie Council, may come unto the Kings ear: in other places have a right to call in question the actions of the Prince, and also to prescribe Laws, whereby the Prince himself is bound. Many there are, who think, the difference of the highest Empire, or of that less than the highest, is to be taken from the conveyance of Empire by way of election or succession. Empires devolved this way, they affirm to be highest, not those that come the other way. But it is most certain, this is not universally true; for succession is not the title of Empire, which gives it form, [Page 102] but a continuation of what was before The right begun from the election [...] the Family is continued by succession wherefore, succession carries down [...] so much, as the first election did confe [...] Among the Lacedemonians, the King­dom passed to the Heirs, even after [...] Ephori were ordained. And of such Kingdom, that is, a principality, [...] Aristotle Pol. 3. 14.: some of them go by rige [...] of bloud, some by election: and in the Heroical times most Kingdoms in Greece were such, as besides him, Thucydid [...] Lib. [...] Notatum id & Dionys. Hali­carnass. l. 2. & 5. notes. On the contrary, the Roma [...] Empire, even after all the power boti [...] of Senate and people was taken awa [...] was bestowed by election.

XLVII. The second Caution.

LEt this be the second caution. [...] one thing to enquire of the thing, [...]nother Vide cui va­cat Car. Moli­naeum ad con­suesud. Pa [...]s. Tit. 1. sect. 2. gl. 4. num. 16. of the manner of holding it: which is appliable not only to corporal things but incorporal also. For, as a Field is a thing possessed, so is a passage, an act, a way. But these things some hold by a full right of propriety, others by a righ [...] usufructuary, other by a temporary right; So the Roman Dictator, by a tempo­rary You have an example of an Emperour made for a time, in Gre­goras, lib. 4. initio. right, had the Highest power: and some Kings, both the first that are elected, and they that succeed them in a lawful order, by an usufructuary right; [Page 103] but some Kings by a full right of pro­priety, as they that by a just War have gotten their Empire, or into whose pow­er some people, to avoid a greater evill, have so given up themselves, that they excepted nothing. Neither do I assent to them, who say the Dictator had not the highest power, because it was not perpetual; for the nature of moral things is known by the operations: wherefore such faculties as have the same effects are to be called by the same name. Now, the Dictator, within his time, exerciseth all acts by the same right So that the people, when they would save Fab. Ru­tilian, made Petition to the Dictator., as a King of the best right; nor can his act be ren­dred void by any other. As for duration, that changeth not the nature of the thing: though if the question be of dig­nity, which is wont to be stiled Ma­jesty, this is greater, no doubt, in him to whom perpetual right is given, than to whom temporary right; because the manner of the Tenure is of moment in respect of dignity. And I would have the same understood of these, that be­fore Kings come to age, or whilst they are hindred by loss of reason or their li­berty, are appointed Curators of the Kingdom, so, that they be not subject to the people, nor, their power revo­cable before the appointed time. Ano­ther judgement is to be made concerning those that have received a right revoca­ble at any time, that is, a precarious [Page 104] right, such as of old was the Kingdom of the Vandals in Africa, and of the Procopius. Vandal. 1. Aimol. 2. 20. & 4. 35. Goths in Spain Moris an [...]iqui vestigium in B [...]hetriis, vide Marianam l. 16., when the people de­posed them, as oft as they were displea­sed [...]oc de Heru­lis etiam prodi­dit Procepius Gol. 2. de Longobardis Paulus Warnasredi l. 4. & 6. de Burgundis Ammianus lib. 28. de Moldavis Laonicus Chalco [...] ­las, de rege Agalis apud Af [...]os Joannes Leo lib. 7. de Norwagis at Guil. Neubrigensis regem ibi factum quisquis regem occidisset. [...] Q [...]adis & Jazygibus similia habes in excerptis Dionis.; for every act of such Kings may be rendred void by these that have given them a power revocably; and therefore, here is not the same effect, nor the same right, as in other cases.

XLVIII. That some highest Empires are holden fully, i. e. alienably.

THat which I have said, that some Empires are in full right of proprie­ty, i. e. in the patrimony of the Ruler, is opposed by some learned men with this Argument, That free-men are [...] Hotem. cont. ill. qu. 1. in commerce. But, as power is either Lordly, or Regal; so also Liberty is ei­ther personal, or civil; and again, either of single persons, or of all together: for the Stoicks too did say, there is a certain servitude consisting in [...]. Dog. Laert. 1 Sam. 22. 28. 2 Sam. 10. 2. 1 Reg 9. 22. subje­ction; and in the holy Scriptures the Kings subjects are call'd his servants. As therefore personal liberty excludes Master-ship, so civil liberty opposes re­gality, and any other dition properly so [Page 105] called. So Livy opposeth them, saying, The people of Rome are not in a kingdom, Lib. 45. but in liberty: and elsewhere he distin­guisheth the people enjoying liberty Thucydides: Pars Thracum libera. Seneca pater suasoria. Non eadem mo­do in libera ci­vitate dicen­dam esse senten­ciam, quo apud Reges. Josephus antiq. hist. l. 13. ad Reges p [...]losque li­beros. Cicero Epist. 15. 4. Populorum li­berorum, regum­que saciorum auxilia. Plini­us l. 6. c. 20. de Indis: Jam hi montium qui perpetuo tractu Oceani oram te­nent, liberi & regum expertes. from those that lived under Kings. Cicero Lib. 3. de legib. Annal. 1. Lib. 12. said, Either the Kings should not have been expell'd, or liberty should have been given to the people really, and not in words. After these Tacitus, The City of Rome from the beginning was under Kings: L. Brutus brought in Li­berty and the Consulship. Strabo saith of Amisus, it was sometime free, some­time under Kings. And frequently in the Roman De bello & de judiciis re­cuperatoris. Laws, foreiners are di­vided into Kings and free State:. Here then the question is not concerning the liberty of single men, but of a people. And further, as for private, so for this publick subjection some are said to be, not of their own right, not of their own power Hinc illa: Quae urbes, qui agri, qui homi­nes Aetolorum juris aliquondo fuerunt. Et, Estne pop. Collatinus in sua potestate? Liv. lib. 38. & lib. 5.. Yet properly, when a people is alienated, the men themselves are not alienated but the perpetual right of go­verning them, as they are a people. So, when the freed servant of a Patron is assigned to one of his children, it is not the alienation of a freeman, but he trans­cribes and makes away the right he had over another man. Nor is that more firm, which they say, If a King hath [Page 106] gotten any people by War, whereas he subdued them not without the bloud and sweat of his subjects, they are rather to be taken for the acquest of the Sub­jects than of the King. For haply, the King maintain'd his Army out of his own private M. Antoni nus ad be lum Marcomonni­cum cum [...] a­rio exhausto in­dicere populo nihil vellet, fa­cto in foro Tra­jani sectione, distraxit vasa aurea, pocu [...] Chrystallina & murrina, uxori [...] & suam sericam & auream ve­stem, multa or­namenta gem­marum. substance, or out of the profits of that Patrimony Ideo Ferdi­nandus Grana tensts Regni partem alteram, ut stante matri­monio ex Castel­lae proventibus quaesitam, sibi vindicavit. Docet Moriana lib. 28. Hist. Hispan. which fol­lows his principality; for suppose a King hath but the usufruit of that very Pa­trimony, as also of the right of gover­ning the people which hath elected him, yet are those fruits his own. (As it is declared in the L. in fidei [...]missaria sect. plane. D. ad S. C. Trebell [...]anum. civil Law, that the fruits of an inheritance, which is commanded to be restored, are not restored; because they arise not from the inheritance, but from the Thing.) Wherefore it may come to pass, that a King may have command over some people by a pro­per right Balduino con­cessere. qui cum ipso in orientem belli causa venerant, ut urbium, pro­vinciarum, vectigalium, rerum bello captarum dimidium ipsi cede­ret., so that he may also alienate them. Strabo Lib. 8. saith, the Island Cy­thera lying over against Taenarus was by his own private right pertaining to Eurycles Prince of the Lacedemonians. So, King Salomon gave to Hirom Ita enim eum Graece vocat Philo Biblius qui Sanchu­niatonis historiam vertit. 1 Reg. 12., King of the Phenicians, twenty Cities; not [Page 107] of the Cities of the Hebrews: for Cabul (which name is attributed to those Ci­ties) is seated without the Hebrew bounds, Jos. 19. 27. but of those Cities, which the conquered Nations, enemies 1 Reg. 9. 6. ibid. 12. of the Hebrews, had retained till that 1 Paralip. 8. 14. day; and which partly the King of E­gypt, Salomon's Father-in-Law, had o­vercome, and given as a dowry to him, partly Salomon himself had taken in; for that they were not inhabited by the Israelites, at that time, is proved by this argument, because after Hirom restored them, then at last Salomon carried thither Colonies of the Hebrews. So Hercules Idem Hercules Dryopes, qui juxta Paruas­sum habitabant, à se victos do­navit Apollini. [...] vius ad 4. Ae [...]eid. Her­culem adversus Lapithas belli socium sibi sum­sit Doriensium Rex, parte Reg­ni in mercedem societatis data. Cychreus Salaminis Rex prole carens regnum testa­mento reliquit Teucro. Peleus ab Eurylione Phthiae Rege tertiam Reg­ni partem accepit in doten [...]; quae hobet Apollodorus. Apud Livium est libro 1. Proca Numitori regnum legat. is read to have given to Tyndareus the Empire of Sparta taken in War, u­pon Diod. l. 4. these terms, that if Hercules should leave any children, it should be retur­ned to them. Amphipolis was given as a dowry to Acamas the Son of Theseus; And in Homer Agamemnon promiseth to give Achilles seven Cities. King A­naxagoras freely bestowed two parts of his Kingdom upon Melampus Lanassa nubens Pyrrho Epirolarum Regi in dotem ei attulit Corcyram urbem ab Aga­thocle patre suo bello captam. Plutarchus Pyrrho.. Lib. 5. Ju­stin saith of Darius, He gave by Testa­ment the Kingdom to Artaxerxes, to [Page 108] Cyrus certain Cities, whereof he was Governour. So the successors of A­lexander are to be thought, every one for his part, to have succeeded into that full right and propriety of ruling over the Nations, which were subject to the Ammianus de Perside, non exacte tamen ad histo [...]iae fi­dem: Ex testa­mento nationem omnem in suc­cessoris unius jura translatam libro. 22. Persians, or else themselves to have ac­quired that power by the right of Vi­ctory. Wherefore it is no marvell if they assumed to themselves a right of aliena­tion. So when King Vale [...]us Maximus: [...] testa­m [...]nti aequitate grat [...] Asiam pop. Romano le­gavit. Florus de ea re: Addita igitur haereditate provinciam pop. Romanus, non quidem bello nec armis, sed quod est aequius, testamenti jure [...]. Flor. l. 2. Epit. Liv. 58. Attalus the Son of Eumenes had by his testament made the people of Rome heir of his Goods, the people of Rome under the name of Goods comprehended his Kingdom too. And after when Nicomedes King of Bi­thynia dying had made the Roman peo­ple Heir, the Kingdom was reduced into the form of a Cic. secundum in Rullum: Haereditatem crevimus, regnum Bithyniae. Cic. de lege Agraria: Qui ignorat Regnum Aegypti testamento Regis Alexandrini, populi Romani esse factum? Ex Josepho discimus Herodem, Augusto si concedente ut Regnum cui è liberis vellet relingueret, testamentum aliqu ties mutasse. Antiq. hist. l. 15. & 16. Alfonsus Arragonius Neapoleos Regnum, ut armes partum, Ferdinando noto suo reliquit. In eodem Regno urbes quasdam Ferdinandus legavit nepoti. Maria­na lib. 30. Province.

XLIX. Some highest Empires are not holden fully.

BUt in Kingdoms which are conferred by the will of the people, I grant Imperium non deb. re re­linqui ut agros & servas dicit Vopiscus Ta­cito. Salvia­nus: Non [...] ­terat populos quos regebat per testamentum egenis tradere. it is not to be presumed that it was the will of the people, that an alienation of his Empire should be permitted to the King. Wherefore, what Crantzius notes in Unguinus as a new thing, that he had bequeathed Norway by his testa­ment, we have no reason to disapprove, if he respecteth the manners of the Ger­mans, among whom Kingdoms were not held with so full a right. For, wher­as Charls the Great and Lewis the pi­ous and others after them even among the Vandals and Hungarians have dis­posed of Kingdoms in their testaments, that had rather the vertue of a commen­dation Vide Capita­lum [...] con­ventus ad Ca­ [...]siacum sub Carolo Calvo. Huc refer testa­mentum Pela­gii quo Hilpa­niam reliquit Alfanso & Os­mifindae, & de Dania quaedam apud Saxonem. Neque mirum igitur, quaedam testamenta improbante populo fuisse irrita, ut Alfonsi Arrag [...]i. Vide Marianam lib. 10. Et Alphonsi Legionensis, cum [...] filias filio prae [...]lisset. Idem Ma [...]. l. 12. among the people, than the force of a true alienation. And of Charls, Ado specifies the same, that he desired his testament should be confirmed by the chiefest of France. Whereunto that is like which we read in Livie, that Philip King of Macedonia, when he had a mind to keep Perscus from the King­dom, and in his place to advance [Page 110] Antigonus, his Brothers Son, visite [...] the Cities of Macedonia to commen [...] Vide rem si­milem apud Cassiodorum Lib. 8. Epist. 8. & seq. Ita pacta succes­sionis mutuae inter Sancti­um & Jaco­bum Arr. go­nenses à pro­ceribus firma­ta. Mariana lib. 12. & Hen­rici Navarrae Regis qua Joannem instituit haeredem. Id. l. 13. & Isabellae Reginae Castellae. Id. lib. 28. Antigonus to the Princes. Nor is [...] material, that the forementioned Lew [...] is read to have rendred the City Rome to Pope Paschal, seeing the Franks migh [...] rightly render to the people of Rome that power over the City, which they had received from the same people: [...] which people he did sustein as it We [...] the person, who was Prince of the first order.

L. A further manifestation of the second caution.

THe truth of our foresaid note, about distinguishing the height of power from the fulness of having it, will ap­pear in this, that as many highest Em­pires are not, so many not highest are held fully. Whence it is that Vide de Vrge­tii principatu Marianam lib. 12. c. 16. Mar­quessates and Earldoms are wont to be sold and disposed of by will more easily than Kingdoms. Moreover the same di­stinction shews it self in the Protector­ship Vide coth­mannum Tomo 1. Cons. 41. num. 2., whilst a King, either by non-age or by disease, is unable to manage his own power. For, in Kingdoms that are not Patrimonial, the Protectorship be­longs to them, to whom the Publick [Page 111] Law, or in defect thereof the consent of the people Vide Marian. in Alphonso 5. Legionis R [...]ge. At testamentum Regis Joannis de tutela & ad­ministratione Regni à proce­ribus improba­tum. Mar. lib. 18. doth commend it: in Patrimo­nial Kingdoms, to them who are chosen by the Father Ptolomaeus Rex Aegypto Tutorem filio suo reliquit po­pulum Romae­num. Val. or by the next of Kin. So we see in the Kingdom of the Epirots, which arose from the peoples consent, Aribas a Pupil-King had Tutors pub­likely appointed him: and so had the post­hume Son of Alexander the Great by the Macedonian Peers. But in the lesser Asia, gotten by War, King Eumenes appointed his Brother to be Tutor to his Son Attalus. So Hiero the Father reigning in Sicily ordained by his te­stament whom he pleased to be Tutors to his Son Hierom. Now, whether a Max. l. 6. c. 6. 1. King be withall, in his private right, a Lord of Land, as the King of Egypt Justin. l. 13. Justin. l. 67. Plutarch. de am. frat. Lib. 2. Lib. 15. was after the time of Joseph, and the Indian Kings which Diodorus and Stra­bo speak of; or be not, this is extrin­secal to his Empire, and perteins not to the nature of it: wherefore, it neither maketh another kind of Empire, nor another manner of holding the same Em­pire.

LI. A third Observation.

LEt this be observed in the third place, An Empire ceaseth not to be supreme, although hee that is to rule promise certain things [Page 112] Trasanus ca­put suum, dex­ [...] suam, st scienter setellis­set, Deorum irae consecrabat. Plin. Paneg. Adrianus Imp. jaravit nun­quam se sena­torem nist ex se­natus sententia [...]. A­nasta fiu, Imp. juravit serva­turum se decre­ta Chalsedonensis Concilii. Me­minere Zonaras, Cedrenus, alii. Seriores Impe­ratores Graeci Ecclesiae jura­bunt. Vide eun. dem Zonaram Michaele Rau­gabe & alibi. Vide & in Got­this Regibus exemplum apud Cassiodorum. 10, 16, 17. to the subjects or to God, even su [...] things as pertain to the way of ruling. Nor do I now speak of keeping the na­tural and divine Law, adde also that of Nations, unto which all Kings are bound, though they promised nothing; but of certain rules, to which without a promise they were not bound. The truth of what I say appears by silimi­tude of a Father of a Family: who, [...] he hath promised his Family to do somewhat which belongs unto their Government, shall not thereby cease to have, so far as may be in a Family supreme right therein. Nor is the Hus­band deprived of marital power, be­cause of some promise to the Wise. I confess, by this means the Empire is in some sort streightned, whether the obligation ly upon the exercise of the act only, or also directly upon the faculty it self. In the first way, the act done against promise will be unjust: because, as we shew elsewhere, a true promise gives hima right, to whom 'tis made: and in the other way, it will be null by want of faculty. Nor yet doth it thence follow, that he that makes the promise hath any superiour: for, in this case, the act is rendred null, not by superiour force but in Law. Amongst the Persians, the King was Supreme and absolute [...]. Plutarchus.; adored as the Image of God: and as Justin Lib, 10. saith, he was not chan­ged [Page 113] but by death. A King was he that to the Peers of Persia spake thus: I Val. Max. lib. 9. c. 5. have called you together, that I might not seem to use only my own Counsel: but remember it is your duty rather to obey than perswade. Yet he took an oath at his entrance, as Xenophon and Diodorus Siculus have noted, and it was not lawful for him Dan. 6. 8, 12. 15. to change certain Laws made after a particular form. The same is related of the Ethiopian Kings by Plutarch. in Themistocle. Diodurtis Sicu­lus lib. 17. & multo post tem­pore Procopius Persici belli lib. 1. Vbi insignis ad banc rem hi­storia exstat. Tamen idem de Lethe castello legem à Rege mutatam refert, sed non probat. Lib. 3. Lib. 1. Diodorus Siculus. And by his relation the Egyptian Kings, who (no doubt) as well as other Kings of the East had Supreme power, were bound to the ob­servation of many things: but, if they had done the contrary, could not be accused living; dead, their memory was accused Leges tyranno­rum corpora in­sepulta extra fines projici ju­bent. Applanut Civilium ter­tio. Androni­dus Imp. Patrem suum Michaelem, quod fidem Latinans sequi coe­pisset, mortuum sepultura privavit. Gregoras lib. 6., and being condemned they wanted solemn burial: as also the bo­dies of the Hebrew Kings Vide Josephum de Joramis duobus, altero Hierosolymorum, [...] Isratlu Rege, lib. 8. cap. 3. & 5. Item de Joaso Hierosolymorum Rege., who had reigned ill, were not buried in the roy­al Sepulchers: an excellent tempera­ment, whereby, both the highest pow­er was kept sacred, and yet by fear of a future judgement, Kings were kept from breaking their trust. That the Kings al­so of Epirus were wont to swear, they would reign according to the Laws, we [Page 114] learn of Plutarch Plutarchus: Solebant Reges in Cassarorum terra, quae Mo­lottidos pars est, Jovi Areo sa­crisisare ac ju­ramenium prae­stare Epirotis. Jurabant au­t [...]m Reges se im­peraturos sicun dum leges. Epi­rocae autem se imperium ejus­dem conserva­turos secundum easdem leges. in the life of Pyr­rhus. But suppose it be added, If the King breaks his trust, he shall be dep [...] ­sed Vide exem­plum apud Crantzium lib. 9. Suedicorum.? Yet will not the power hereby cease to be the highest, but the mann [...] of holding it weakned by this conditi­on, and the Empire will be as it were temporary. It is said of the King of Sabaeans, that he was absolute [...]. Agatharchides apud Photium. and of a most free power, but that he might be stoned if he went out of his Palace Quod & Ar­temidoro auctore Strabo annotavit. lib. 16.. In like manner, an estate of Land, that is held in trust, is an estate, as well as if it were possessed in full dominion, but it is holden for a time or at the plea­sure of another. And such a Commis­sory Law or condition may be annexed not only in the bestowing of a King­dom, but in other contracts; for some Leagues too with neighbours, we see, are entred with the like Aut etiam ne subditi Regem pacta viol [...] juvent: aut ne ei pareant. Vide Crommerum Polonicis 19. & 21. Est & exemplum apud Scasnaburgensem in rebus Henrician. 1074. sanction.

LII. The fourth Observation.

FOurthly it must be noted, Although the highest power be one and undivi­ded by it self, consisting of the parts a­bove set down, supremacy [...]. being added; Yet may it sometimes happen to be divided Vide Zazi­um singularium responsorum lib. 2. c. 31., either by parts, which they call potential, or by parts subjective. [Page 115] So when the Roman Empire was one, it often came to pass, that one Ruler had the East, another the West, or that three divided the world between them. And so it may be, that a people choosing a King may reserve some acts to themselves, and may commit others to the King with full right. Yet is not that done, as we have shewed already, whensoever the King is bound up with certain promi­ses, but then we must conceive it to be done, if either a partition be made ex­presly Ita Probi tem­pore Senatus firmabat prin­cipum leges, de appellationibus cognoscebat, pro­consules creabat, legatos consuli­bus dabat. Vide & Gail. lib. 2. observ. c. 57. num. 7. & Card. Manti­cam de tacitis & ambiguis conventionibus lib. 27. tit. 5. num. 4., of which we have spoken afore; or, if a people, yet free, lay upon their future Kings a charge by way of an abiding precept; or, if a clause be added to signifie that the King may be compeld or punisht. For a precept is from a superiour, superiour at least in that particular which is given in precept: and to compell is not alwaies the pro­perty of a superiour (for also natural­ly every one hath a right to compel his debtor) but is repugnant to the nature of an inferiour. Parity therefore at least follows from coaction, and so a division of the supremacy. Against such a State, as being double headed, many allege many incommodities: but (as we have also said above) in civil affairs there is nothing wholy without incommodities; and Right is to be measured, not by that which seems best to you or me, but by the will of him whence right ariseth. [Page 116] An antient example is brought by Pla [...] in his third de legibus: For when the House of Hercules had built Arg [...] Messena and Lacedemon, the King were bound to keep their Governmen [...] within the bound of prescribed Laws; an [...] whilst they did so, the people were obli­ged to leave the Kingdom to them and their posterity, and suffer none to take it from them. And to this, not only King and their own people have mutually [...] venanted, but Kings with other Kings, Exempla sunt cum plura in historia popu­lor [...] septentrio­nalium. Vide Joannem Mag­num historia Suedica lib. 15. & 29. Crant­ [...] Suedicorum 5. Pontanum Danicorum 8. and one people with another people, and Kings with neighbourig States, and States with neighbouring Kings, have entred into Covenant, and promis'd aid to [...] other respectively.

LIII. A further explication of the last note, about division of power and mixture.

YEt are they much deceived, who think the power of Kings divided, when they will have some of their acts not accounted firm unless they be ap­proved by the Senate, or some such As­sembly. For the acts voided for want of such approbation, must be understood to be cancelled by the Kings own com­mand, who ordained this by way of caution, lest any thing fallaciously gai­ned from him, should pass under the notion of his true and deliberate will. [Page 117] King Antiochus the third sent such a Boer. ad c. 1. de const. in De­cret. Plut. Apoph. L. unica. c. quando Impe­rator. Addel. 1. c. de petitioni­bus bonorum sublatis. [...]escript to the Magistrates, that they [...]hould not obey him, in case he should command any thing against Law: and Constantin published the like, that Or­phans and Widows be not constreined to come to the Emperours Court for Justice, no not if the Emperours rescript [...]e shewed. Wherefore this case is like to that of testaments, which have a clause, that no later testament shall be of force: for this clause also makes it be presumed, that the later testament proceeds not from the true will of the maker. Nevertheless, as this clause, so that other by the Kings express com­mand and special signification of his later will may be annulled. Again, I do not here use the authority of Polybius neither, who refers the Roman Common­wealth to a mixt kind of Government; which, at that time, if we respect not the doings themselves but the right of doing, was meerly popular. For, both the authority of the Senate, which he refers to an Optimacy, and of the Con­suls, whom he will have to be like Kings, was subject to the people. The same may be said concerning other wri­ters of the Politicks, who conceive it more agreeable to their design, to behold rather the external appearance and daily administration of affairs, than to weigh the right itself of the highest power.

LIV. True examples of the supreme power divided.

MOre pertinent is that which Ari­stotle hath written: Between [...] full Kingdom Quod [...] vocat; eadem est [...] Soph [...] Anti­gene, Plutarcho [...], S [...]abo­ni [...]., and a Laconical Dionysius Halicarnassen­sis de Laconi­cis regibus: Neque enim La­cedaemonii pleno jure Reges erant. which is a meer principality, some other species are interjected. An example hereof, as I suppose, may be found in the Hebrew Kings; for, of these, that they ruled, in most things, by the high­est right, I think it is impiety to doubt; for the people desired such a King as their neighbours Putabat popu­lu [...] nihil esse ab­surdi si cum vi­ciniregnareatur, ipsi eandem im pe [...]ii so [...]mam ac­ciperent. Jose­phus. had: but the Nations of the East were subject to their Kings in the most humble way Aeschylus Persis de Rege Persa [...]um sic loquentem fa­cit Atossam:— [...]. No'um illud Maronis:— Re­gem non sic Aegyptus, & ingens Lydia, nec po [...]uli Parthorum aut Me­dus Hydaspes Observant.—Apud Livum: Syri & Asiatici [...] hominum servituti nata; à quo non discrepat illud Apollonii apud Philostratum: Assyri & Medi dominationem etiam adorant. Arist. 3. Polit. 14. Aesia [...]ci dominatum aequo a [...]imo serunt. Cicero de p [...]or consularib. [...] & Syris nationibus natis servituti. Sallust. de gentibus o [...]lentis: Adeo illis [...]genita est sanctitas Regii nomi [...]. Apud Tacitum Civilis Batavis ad Gallos: Hist. 4. Servirent Sy­ria Asiaque & suet [...] Oriens. Nam & in Germania & in C [...]llia tum Reges erant, sed ut idem Tacitus notat, precari [...] [...] regnandi, & autoritate suadendi, non jubendi potestate.. And above we have noted, that the whole Hebrew peo­ple was under the King. And Samuel describing the right of Kings, sufficient­ly shews that the people have no pow­er left in themselves against the Kings injuries. Which the Fathers do rightly gather from that of the Psalm: Against thee only have I sinned. Upon which [Page 119] place Hierom Idem Hiero­nymus Epist. ad Rust. de paenitent [...]a: Rex enim crat: alium non time­bat, alium non habebat super se.: Because he was a King, and feared not another. And Ambrose: Being a King, he was in danger of no Laws, because Kings are free from such bonds; neither do any Laws bind them over to punishment, being secured by their Soveraign power Paria habet ad [...]dem Psalm [...]m Ar­nobius minor Vit'ges apud Cassiodorum: Causa Regiae po­testatis supernis est applicanda judiciis, quan­doquidem i'la à Coelo telita est, ita seli Coelo de­bet innocentiam. Idem legere est apud Isidorum Pelusiot. Epist. postre [...] edita­ [...]um. 383.: against man there­fore he sinned not, to whose restraint he was not obnoxious. I see there is consent among the Hebrews, that stripes were inflicted on the King offending against those written Laws exstant about the Kings office; but those stripes among them had no insamy, and they were of his own accord received by the King in token of repentance, and therefore he was not beaten by an Officer, but by one whom he was pleased to make choice of, and at his own pleasure he was eased. As to coactive punishments, the Kings were so free from them, that e­ven the Law of excalceation, as having in it something ignominious, was not of force upon them. The Hebrew Barnach­mon hath a sentence exstant amongst the sayings of the Rabbins, in the title of Judges: Nulla crea­tura judicat Re­gem, sed Deus benedictus. Ex. 32. 8. Deut. 1. 17. Psal. 72. 1. 2 Chron. 19. 6. 8. 1 Chron. 26. 32. 2 Chron. 19. 11. No creature judgeth the King, but the blessed God. These things being so, neverthelels I think some causes were exempted from the Kings judgement, and remained in the power of the Synedry of LXX. instituted by Moses at Gods command, and by perpetual succession continued to the times of Herod. There­fore, both Moses and David call Judges [Page 120] Gods, and judgements are called the judge­ments of God, and Judges are said to judge not in the place of man but of God. [...] the matters of God are plainly distin­guisht from the matters of the King where, by the matters of God, the mos [...] learned of the Hebrews bid us understand judgements to be exercised according [...] Gods Law. The King of the Jews, [...] deny not, exercised by himself certain capital judgements (in which particulae Matmonides prefers him before the King of Israel) which also is evinced by exam­ples not a few, both in the sacred Scrip­ture and in the writings of the Hebrews: Yet certain kinds of causes seem no [...] permitted to the Kings cognizance, viz. of the Tribe, of the high Priest, of the Non capit Propbetam pe­rire extra Je­rusalem. Luke 13. 33. Jer. 38. 5. Prophet. And hereof there is an argu­ment in the history of the Prophet Jere­my, whom when the Princes required unto death, the King answered: Behold, he is in your power, for the King can do nothing against you: to wit, in this kind of matters. Yea, and the person that for any other cause was impeached before the Synedry, could not by the King be exempted from their judgement. There­fore Joseph. An­tiqu. 14. 17. Hircanus, when by power he could not hinder their judgement concerning Ho­rod, eluded the same by Art. In Macedonia, they that descended from Calanus, as Ca­listhones in Arrian saith, bare rule over that people not by force but by Law. The Macedonians, saith Curtius, are accustomed Lib. 14. [Page 121] to the Regal government, yet are in a grea­ter shadow of liberty than other nations: For even the judgment of life and death was not in the Kings hand. Of Capital matters, saith the same Curtius, by the Lib. 6. old custome of the Macedonians, the Ar­my did enquire, in time of Peace the Com­mons; the power of the Kings prevailed no further than their authority could move. There is in another place of the same Au­thor another token of this mixture: The Macedonians decreed according to the cu­stome Lib. 8. of their nation, that the King should not hunt on foot, without the attendance of his elect Princes or courtiers. Taci­tus relates of the Gothones: They are now in greater vassalage under their Kings, than other Germans: nor are they yet depriv'd of all liberty. For he had afore describ'd the principality by the authori­ty of perswading, not by the power of Commanding: and after he expresseth a full Royalty in these words: One com­mandeth, without all exceptions, not by a precarious right of governing. Eustathius upon the sixt of the Odysses, where the Commonwealth of the Phaeaces is des­cribed, saith it had a mixture of Power, of the King, and of the States Laonicus Cha [...] ­cocondylas taliae ait esse regna Pannonum & Anglorum, l. 2. Arragonum, l. 5. & Navarrae eo­dem libro, ubi ait, nec magistra­tus à Rege crea­tos, nec praesidia imposita nisi vo­lentibus, nec quicquam popu­lo imperatum contra mores. Reges alios esse pleno cum jure, alios sub legibus, etiam Judaeus Levi Gersonides notavit ad 1 Sam. 8. 4. Mira quae de Taprobane scribit Plinius lib. 6. c. 22. Eligi regem à populo senecta clementia (que) liberos non habentem, & si postea gignat, abdicari, ne fiat haereditarium regnum. Rectores ei à po­pulo xxx, dari, nec nisi plurium sententia quenquam capite damnari. Sic quo (que) appellationem esse ad populum, lxx. judice dari. Si liberent ii reum, non amplius xxx. (ita enim legi locus hic debet) iis nullam esse dignitatem, gravissimo probro. Regi cul­tum liberi patris, caeteris Arabum. Regem si quid delinquat m [...]rte mulctari, nullo interimente, sed aversantibus cunctis & commercia etiam sermonis negantibus. Servius ad illud 4. Aen. populum (que) patresque. Quidam hoc loco volunt tres partes politiae comprehenlas, populi, optimatum, regiae potestatis. Cato enim ait detribus istis partibus ordinatam fuisse Carthaginem.. Some­thing like it I observe in the times of the [Page 122] Roman Kings; for then all matters almost went through the Royal hand. Romulus reigned over us, as he pleased, saith Taci­tus. It is manifest, at the beginning of the City Kings had all power, saith Pomponius: yet Halicarnassensis will have something excepted by the people even at that time. But if we give more credit to the Roman Authors, in some causes there lay an ap­peal from the Kings to the people, as Se­noc [...] hath noted out of Cicero's books de Epist. 100. Republica, out of the Pontifical books al­so, and Fenestella; shortly after, Servius Tullus advanced to the Throne, not so much by right, as by the favourable breath of the people, yet more abated the regal power. For, as Tacitus speaketh, 3. Annal. he establisht Laws, which even the Kings themselves were to obey. The less cause have we to wonder at that which Livy saith, The power of the first Consuls dif­ferd from the regal in little more than that 'twas annual. Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm, and in the first times of the Consuls. For in [Page 123] certain affairs, and those of the greatest moment, the will of the people was a law, if the Fathers would go before them with their authority Plutarchus Coriolano: Populus jus non habebat aut le­gem condendi aut aliud quid jubendi nisi Se­natus praecessis­set auctoritas. Similem mix­turam in Ge­nuatium rep. suis tempori­bus observat Chalcocondy­las l. 5. Liv. lib. 6., and (as it were) pre­pare the bill; which authority afterward, the peoples power encreased, was onely for a shew, when the Fathers, as Livy and Dionysius note, began with their voices, but the Assembly did what they pleased. For all this, in after times there remained somewhat of a mixture, whilst, as the same Livy speaketh, the Govern­ment was in the hand if the Patricians, that is, of the Senate, but the Tribunes, that is, the Plebeians, had a share, to wit, a right of forbidding or interceding. And so Isocrates will have the Athenian Commonwealth, in Solon's time, to have been [...] an Optimacy mixt with a Demo­cracy.

LV. Whether He can have supreme power, that is comprehended in an unequal league.

UPon these premises, let us examin some questions, which are of frequent use in the argument we have in hand. The first is, whether He may have su­preme power, who is comprehended in an unequal league. By an unequal League I understand here, not that which is made between parties unequal in their forces, as the Theban City in the time [Page 124] of Pelopidas had a league with the King of Persians, and the Romans of old with the Massilians, and afterward with King Justin. l. 43. Vol. Max. l. 7. cap. 1. Massanissa; nor that which hath a tran­sient act, as when an enemy is receiv'd to friendship, on condition he pay the cost of the war, or perform somewhat else: but, that which in the very nature of the agreement gives a certain permanent pre­lation to one side; that is, when the one is bound to conserve the Empire and Ma­jesty of the other; as it was in the league of the Etolians with the Romans; that is, both to endeavour that the others Empire may be in safety, and that his dignity, which is signified by the name of Maje­sty, may be inviolat Imperii re­verentiam di­xit Tacitus, & fic explicat: Scde fixibus (que) in sua ripa, mente auimo (que) nobis­cum agunt. Lib. 4. Florus: Illi quo (que) reliqui, qui immunes imperii erant, sentiebant ta­men matnitudi­nem, & victo­rem gentium populum­ Romanum reverebantur.. Unto which kinde are to be referr certain Rights of them which are now calld Rights of Protecti­on, Advocacy, Mundiburg: also the Right of mother-cities amongst the Gre­cians over their Colonies. For the Colo­nies wereas free, saith Thucydides, as the mother-Cities, but they ought to exhibit Lib. 1. reverence to their Metropolu, and certain signes of honour. Livy saith of the old Lib. 1. league between the Romans, who had re­ceived all the right of Alba, and the La­tins of the Alban race: In that league the Roman state was superiour. Rightly speaks Andronicus Rhodius after Ari­stotle: It is the property of friendship 'twixt Nicom. l. 9. c. 18. unequals, that the stronger have more ho­nour, and the weaker have more help. We [Page 125] know what Proculus answerd to this que­stion, L. non dubito D. de cap. to wit, that the people is free which is sub ect to the power of no other, though it be contained in the league, that that people should fairly conserve the Maje­sty of the other people. If then a people bound in such a league remain free, if they be not subject to anothers power, it followes that they retain the highest power. And the same is to be said of a King; For there is the same reason of a free people and of a King, who is truly so. Proculus addes, such a clause is in the league, to signify, the one people is su­periour, not that the other is not free. Superiour here is meant, not in power (for before he had said, the one people is subject to the others power) but in au­thority and dignity; which the follow­ing words do express by a fit similitude: As we understand our Clients to be free, though they be not equal to us, neither in authority, nor in dignity, nor in every right: So also are they to be conceived free, whose duty it is to have a fair respect to the conservation of our Majesty. Clients are under the trust of their patrons, so are a people inferiour Vide Cardina­lem Tuscbum PP. concl. 935. exemplum habet in Dilimnitis, qui [...] sui (que) juris Per­sis militabant apud Agathiam lib. 3. Sic Irene consilium fuit inter mariti li­beros it a parti [...] Imperium ut post natos faoe­ret dignitate quidem mino­res, caeterum sui juris ple­naeque potesta­tis. Vide Crant­zium Saxonico­rum 10. de ur­bibus quaesein Austriacorum protectionem de­dere. Herodian. l. 5. Osroë­norum & Ar­moriorum, quorum hi sub­diti erant, illi amici & socii. in the league under the trust of that people which in dignity is superiour. They are under patronage not under rule, as Sylla speaks in Appian Appian. Mithr.. Livy Liv. lib. 3 [...]. saith, in parte, non in ditione: and Cic. Offic. 2. Cicero, describing those more honest times of the Romans, tells us, they had [Page 126] patrocinium sociorum, non imperium. With whom agrees well that saying of Scipio Liv. lib. 26. Africanus the elder: The people of Rome had rather oblige men by favour than fear, and unite forein Nations to them by a faithfull association, than subdue them to a grievous servitude: and that which Stra­bo relates of the Lacedemonians after the Romans came into Greece: They remained free, conferring nothing, beside a friendly aide. As private patronage taketh not a­way personal liberty, so publique patro­nage taketh not away Civil liberty, which without supremacy of power cannot be understood. Therefore we see these are opposed in Livy, To be under protection, and To be under command: And Augu­stus, in Josephus, threatens the Arabian King Syllaeus, unless he would cease from doing his neighbours wrong, He would take order, that of a friend he should be made a subject: of which quality were the Kings of Armenia, who (as P [...]tus wrote to Vologeses) were within the Ro­man dominion; and therefore were Kings, rather in the sound of the name than re­ally: such as were the Cyprian and other Kings of old under the Kings of Persia: [...]. lib. 16. Subjects, as Diodorus saith.

LVI. An Objection Answered.

PRoculus addeth somewhat which seem­eth opposite to that we have said: There [Page 127] are accused before us some of the confederat Cities, & after sentence of condemnation we inflict upon them punishment. But, for the understanding hereof, we must know, that four kindes of Controversies may happen. First, if the subjects of a peo­ple or King, that is under the protection of another, be said to have done against the league: Secondly, if the people or the King himself be accused: Thirdly, if the Fellowes, which are under protection of the same people or King, contend with one another: Fourthly, if the subjects complain of the injuries of their own Rulers. In the first kinde, if a fault ap­pear, the King or people is bound, either to punish the offendor, or to give him up to the party injured: which holds, not only 'twixt unequals, but between those that are equally confederat, yea and a­mong them that are not at all confede­rate, as we shall shew elswhere. He is al­so bound to endeavour that dammages may be repaired: which at Rome was the Office of the Recuperators Gallus Aeli­us apud Fe­stum: Recipe­ratio est cum in­ter populum & Reges nationes (que) ac civitates pe­regrinas lex con­venit, quomodo per reciperato­rem reddantur res, reciperen­tur (que) res (que) pre­vatat inter se prosequantur. Liv. lib. 23.. But one of the Associats in the league hath no di­rect right to apprehend or punish the subjects of his confederate. Wherefore Decius Magius, a Campanian, being put in bands by Annibal, and carried to Cy­rene, and thence to Alexandria, shewed that he was bound by Annibal against the league, and so was freed. In the se­cond way, the confederate hath a right [Page 128] to compell his Confederate, to stand to the Articles of the league, and, if he will not, to punish him. But this also is not peculiar to the unequall league: it hath place too in that which is equall. For, that one may take revenge of him that hath offended, 'tis sufficient, that he be not subject to the offender (of which els­where:) wherefore the same thing comes to pass between Kings, or people not con­federate. In the third kinde, as in an equal league, controversies are wont to be brought before an Assembly Talae conven­tus vocatur [...]. of the Con­federates, to wit, such as are not concer­ned in the question; as we read the Gre­cians, the ancient Latins, and the Ger­mans of old have done; or else before Ar­bitrators, or before the Prince of the As­sociation as a common Arbitrarot: So in a league unequal, it is agreed for the most part, that the controversies be debated be­fore him who is superiour in the league. This therefore doth not prove any power of command: for Kings also do usually try their causes before judges of their own constitution. In the last kinde, the con­federates have no right of cognizance. Therefore when Herod voluntarily carried to Augustus certain accusations against his sons; You might, said they, punish Joseph. l. 16. 6. 7, 8. us your self, both as a father, and as King. And Scipio Vide Polyb. in legationum ex­ [...]pto 105., when Annibal was accus'd at Rome by certain Carthaginians, said, the Conscript Fathers ought not to in­terpose [Page 129] in a business of the Carthaginian Val. Max. l. 4. c. 1. Commonwealth. And herein (as Ari­stotle teacheth) a confederacy and a com­monwealth do differ, that Confederates Polit. 3. 9. take care no common injury be done un­to them; not that the Citizens of a Con­federate Commonwealth do no injury one against another.

LVII. Another Objection answered.

IT is objected also, that in histories he that is superior in the league is some­times said to command; he that is inferi­or, to obey. But, neither ought this to move us. For, either it is treated of things pertaining to the common good of the So­ciety, or of his private utility who is su­perior in the league. In common affairs, out of time of Assembly, even where the League is equal, the custome is for him who is chosen Chief of the league, to have command over his Confederates, as Aga­memnon over the Graecian Kings, the La­cedaemonians over the Graecians afterward, and after them the Athenians. In the Speech of the Corinthians in Thucydides we read: It becomes them that are Princes of the league, not to seek their own parti­cular advantage, but content themselves with an eminency above the rest in taking care of the common Interest. Isocrates re­lates, that the antient Athenians had the conduct of Greece, and the charge of all [Page 130] their Fellowes, but so, that they left them all their liberty entire. Isocrates ali­bi: itae ut im­perium habere belli, non domi­nari se debcre censerent: Item: Socialiter non heriliter res co­rum curantes. This the Lati [...] call, Imperare to command, the Greek more modestly [...] to order. The Athe­nians, when the conduct of the war a­gainst the Persians was committed to them, [...], saith Thucidides, they or­dered (so the Commissioners from Rome to Greece were said to be sent thither Plinius epist. 8. 24. for ordering the state of the free Cities) wh [...] towns should contribute money against the Barbarians, what should provide stips. Now, if he doth this, who is only chief in a league, no marvell he doth the same who is superior, in a league unequal. Wherefore Empire in this sense, that is, the [...]. conduct of affairs, takes not away the liberty of others Rhodii in o­ratione apud Senatum Ro­manum, quae apud Livium exstat l. 37. Graeci domesti­cis quondam viribus etiam imperium am­ptectebantur: nunc imperium ubi est, ibi ut sit perpetuum op­tant: libertatem vestris tueri ar­mis (atis habent, quoniam suis non possunt. Sic post Cadme­am à Theba­nis receptam narrat Diodorus lib. 15. multas civitates Graecas convenisse, Omnes ut liberae essent, sed Atheniensium ductu uterentur. De ipsis Atheniensibus Philippi Macedonis tempore Dion. Prusaeensis: quo tempore ductu belli omisso libertatem solam retinebant. Sic Cae­sar, quos sub imperio Suevorum fuisse dicit, cosdem mox socios nominat.. But in those things that concern the proper utility of the Su­perior, his Requests are usually call'd Commands, not by right, but by like­ness of the effect, as the Desires of Kings are so called, and as Physicians are said to rule their patients. Livy Lib. 42.: Before this Consul (C. Posthumius) never was any one in any thing a charge or burthen to our Confederates: therefore the Magistrats were furnisht with Mules, tents, and all [Page 131] other necessaries, that they might not com­mand such things from our Fellows. Mean while tis true, it often comes to pass, that the Superior in a league, if he much excell in strength, by little & little, usurps an Empire properly so calld, especially if the league be perpetual, with a right of bring­ing in Garrisons into towns, as the Athe­nians did, when they sufferd an appeal to be made unto them from their Fellows; which the Lacedemonians never did. In which times Isocrates compares the Em­pire of the Athenians over their Confede­rates, to a Kingdom. So the Latins com­plaind, they endured servitude Hal. l. 6. Liv. l. 34. Hist. 4. under the shadow of a league with Rome: so the Etolians, of a vain shew and empty name of liberty; and the Achaians after­ward, that a league in appearance was now become a precarious servitude. So in Tacitus Hoc ipsum est quod Arato Plu­tarchus dicit [...]. Molle servitlum, vv­cula apud Taci­tum hist. 4. Fe­stus Rufus de Rhodiis: Pri­mum liberè a­gebant, postea in consuetudi­nem parendi, Romanis cle­menter provo­cant bus, per­venerunt. Vide Agathiam lib. 1. ubi monentur Gotthi quid à Francis cum tempore exspe­ctandum habe­ant. Civilis the Batavian complai­neth of the same Romans: We are not As­sociats, as heretofore, but are esteemed as slavos: and in another place, A mise­rable slavery is falsly named peace. Eume­nes also in Lib. 35. Lib. 37. Livy saith, the Fellows of the Rhodians were Fellows in word, indeed subjects to their Empire, and obnoxious: And Magnetes, that in shew Demetrias was free, but indeed all things were done at pleasure Tales & Lazi Jusi [...]niani tem­poribus. Vide Procopium Pers. 2. of the Romans. So Polybius notes, the Thessalians had a seeming li­berty, but really were under command of the Macedontans. When these things are [Page 132] done, and so done, that patience passe [...] into a right (of which elswhere) then ei­ther they which were Fellows become Subjects, or at least there is a partition of the supreme power, such as we have declared above to be possible.

LVIII. That the highest power may consist with paying of Tribute.

I See no cause to doubt, but they that [...], ut est apud Thucydid. pay a certain Tribute Persae pecuni­am annuam ab Jussiniano ac­cipi [...]bant, qua de [...]e vide Proco­copium Persico­rum 2. & Got­thicoium 4. Id molli vocabalo vocabalur sti­pendium ad tu­tandas portas Caspias. Turca Arabas monta­nas pecunia placant. either for re­deeming of injuries, or to gain safeguard (such as were the Hebrew Joseph. l. 15. Negabat An tonius rectum elie reg [...]m vo­cari ad rat o­nes reudendas de iis quae ut Rex fec. [...]: [...]ta enim ne regem quidem cum fore. Par esse ut qui hone­rem ei dede­rint, et [...]am po­testare quam liberr mè uti eum sinant. Chrysostomus 2. de Eleemosyna: Judaei, ex quo retro ferri res eorum coepere, Romano attributi imperio, ne (que) in plena, ut ante, erant li e [...]: ne (que) tamen ita ut nunc omnino servi, sed sociorum vo­cabulo honorabantur, regibus suis tributa a pendentes & ab iis ac­cipientes praefectos. Caeterum in pleris (que) suis utebantur legi­bus, ita ut & popularium delinquontes ipsi punirent secundum mores patrios. Kings, and of the neighbouring nations after the time of Antonius) may have the highest pow­er; although this confession of their weakness diminish somewhat of their dig­nity.

LIX. That the highest power may be holden in Fee.

TO many it seems a more difficult que­stion concerning feudal obligation, but it may easily be solved out of that which hath been said. For in this contract, [Page 133] (which is proper to the German Nati­ons, nor is any where found but where the Germans have seated themselves) two things are to be considered, Personal obli­gation, and Right over the thing. Per­sonal obligation is the same, whether one by feudal right possess the right it self of Governing, or any other thing also placed else where. Now, such an Obligation, as it would not take away from a private man the right of personal liberty, so nei­ther doth it take away from a King or people the right of the highest power, which is civil liberty. Which is most ap­parently to be seen in the free feuds which they call Franca, which consist not in a­ny right over the thing, but in personal obligation onely. For these are nothing but a kind of unequal league, (wher­of we have spoken) wherein the one par­ty promiseth aid and service, the other safeguard & protection. Suppose also that aid was promised against All, which Feud they now call Ligium (for that word was of larger signification) this detra­cteth nothing from the right of the highest power over subjects: not to mention now that there is alwayes a tacit condi­tion, while the war is just, of which els­where. But, as to the right over the thing, truly it is such, that the right it self of go­verning, if it be holden in Fee, may be lost, either the family being extinct, or also for some sort of crimes. Yet in the mean it ceaseth not to be highest: for we [Page 134] must distinguish (as hath been said) be­tween the thing it self, and the manner of having it. And by such a right I see many Kings constituted by the Romans, so, that the royal family exspiring, the Empire should return to themselves: which is noted by Strabo concerning Lib. 12. Paphlagonia and some other.

LX. The Right, and the Exercise of it distinguished.

MOreover, both in Empire and Do­minion, we must distinguish the Right from the Use of right, or the first act from the second. For as an Infant King hath right, but cannot exercise his power; so also one of an alienated mind, and in captivity, and that lives in the territory of another, so that freedome of action about his distant Empire is not permitted him: for in all these cases Cura­tors or Vicegerents are to be given. Ther­fore Vide Plu­tarch. Demetrio. Demetrius, when being in the power of Saleucus he was under some re­straint, forbad any credit to be had, ei­ther to his seal, or letters, but appointed all things to be administred, as if he had been dead.

LXI. Of the war of Subjects against their Superiors. The que­stion L. 1. c. 4. stated.

WAr may be waged, both by pri­vate men against private, as by a traveller against a robber; and by those that have the highest power against those that have it likewise, as by David against the King of the Ammonites; and by private men against those that have the highest power, but not over them, as by Abraham against the King of Ba­bylon and his neighbors; and by those that have the highest power over private men, either subject to them, as by David upon the part of Isboseth; or not subject, as by the Romans against the pirats. Only the question is, whether it be law­full for private or for publique persons to make war upon them, under whose power, whether supreme or subordinate, they are. And first, that is beyond all controversy, Armes may be taken against inferiors by those who are armed by authority of the Highest power: as Nehe­mias was armed by the Edict of Arta­xerxers against the neighboring Gover­nours. So the Roman Emperors grant L. votu mc. de Metatorib. l. 12. leave to the Lord of the soil to force away the Camp-measurers. But it is inquir'd, what is lawful against the Highest Power, or the Lower Powers doing what they [Page] doe by authority of the Highest. That's without controversy amongst all good men; If they command any thing con­trary to naturall right or to the divine precepts, what they command is not to be done. For the Apostles, when they said, we must obey God rather than men, appealed to a most certain rule, written in all mens minds, which you may finde almost in the same words in Plato: but if for any such cause, or otherwise because it is the pleasure of the Soveraign, injury be offerd us, it is to be sufferd with pa­tience, rather than resisted by force.

LXII. By the law of Nature, war upon Superiors, as such, is not ordinarily lawfull.

ALl men indeed naturally (as we have said above) have right to keep off in­jury from themselves. But, Civil society being ordained for the maintenance of tranquillity, thereupon ariseth presently to the Commonwealth a certain greater right over us and ours, so far as it is ne­cessary to that end. The Commonwealth therefore may, for publicque peace and order, prohibite that promiscuous right of resisting: and no doubt is to be made of the will thereof, when without that the end cannot be attained. For if that pro­miscuous right of resisting continue, it wil not be now a Commonwealth, but a dis­solute [Page 137] multitude, such as were the Cy­clops, of whom Euripides saith, Every Euripid. Cy­clope. one gives lawes to his wife and children, and, A confused company, where every one commands and none obeyes De Bebricii similia pro [...]i­dit Valerius: Non soedera le­gum Vlla col [...]n placidas aut su ra tenentia me [...] ­tes.: And the Aborigines, who, as Salust relates, were a savage kind of people, without laws, with­out rule, disorderly and dissolute: and the Getulians, of whom he speaketh in an­other place, that they were not govern'd, neither by customes, nor by the Law or command of any Ruler. The manners of all Commonwealths are so, as I have said: It is a general agreement of hu­man society, saith Augustin, to obey Kings. Rex est suo u­tens jure nulli obnoxius. Aes­chylus. Nam Principes sunt: obsequendum. quippeni? Soph. To the Prince, saith Tacitus, have the Gods given supreme power; to the subjects is left the glory of obedience. Hic quoque,

Add that which is in Salust Impune quid­vis facere, id est Regem esse. Pertinent huc M. Antonii verba quae ex Josepho modo adduximus. L. Milites. §. irreverens. D. de re milit. Rufus legi. mi­litaribus. cap. 15.. To doe what he will without punishment, that is to be King. Hence it is, that every where the Majesty, that is the dignity, whether of a people, or of One that hath the highest power, is defended by so many Lawes, by so many punishments: which dignity cannot consist, if the licence of resisting do remain. A Soldier, who hath resisted his Captain willing to chastise him, if he hath laid hold on his rod, is cashierd; if he purposely break it, or laid violent hand upon his Captain, dyes. [Page 138] And in Aristotle it is, If one that beareth office beateth any man, he must not lift up his hand against him.

LXIII. Nor is it allowed by the Hebrew Law.

IN the Hebrew Law, he is condemned Deut. 17. 12. Jos. 1. 18. to death, who is disobedient, either to the High Priest, or to him who is extra­ordinarily appointed by God to be Ruler of the people. That which is in Samuel 1 Sam. 8. 11. Deut. 17. 14. of the Kings right, plainly appeares to him that looks rightly on it, neither to be understood of true right, that is, of a faculty to do a thing honorably and just­ly (for a far other manner of life is pre­scrib'd the King in that part of the Law, which declares his office) nor to signify a naked fact: (for there would be nothing peculiar in it, sith also private men are wont to do injuries to private men:) but a fact which hath some effect of right, that is, an obligation of non­resistence Philo in Flaccum: Quando enim defectionis sus­pecti fuimus? quando non pa­cis amantes ab omnibus sudica­ti sumus? insti­tuta vero, qui­bus utimur quo­tidie, nonne ex­tra reprehensio­nem sunt? nonne ad concordiam bonum (que) statum civitatis condu­ount?. Wherefore it is added, that the people opprest with these injuries should cry to God for help; to wit, be­cause no human remedies remained. So then is this called right, as the Pretor is said reddere jus, to do right, even when L. jus pluribus. D. de just. & jure. he determineth unrightly.

LXIV. Least of all, by the Evangelical Law. The first proof, out of S. Paul.

IN the new Covenant Christ comman­ding to give to Caesar the things that are Caesars, would have the disciples of his in­stitution understand, that no less, if not greater obedience, with patience (if need be) is due to the Highest Powers, than the Hebrews owed to the Hebrew Kings: which his best Interpreter Paul the A­postle explaining more at large, and des­cribing the duties of subjects, amongst other words hath these: Whosoever resi­steth the power, resisteth the ordinance of Rom. 13. 2. God: and they that resist shall receive to themselves damnation. He addes: For he Vers. 4. is the Minister of God to thee for good. And again: Wherefore ye must needs be subject, not onely for wrath, but also for Vers. 5. conscience sake. In subjection he inclu­deth a necessity of not resisting, nor that onely that springs from fear of a greater evill, but that flowes from the very sense of our duty, and obligeth us, not to men only, but to God. He addes two reasons: First, because God hath approved that order of ruling and obeying, both of old in the Hebrew Law, and now in the Go­spell; wherefore the publique powers are to be so esteemed by us, as constituted by God himself. For we make those things ours, which we grace with our authori­ty. [Page 140] Second, because this order serves to our good. But, one may say, to suffer in­juries is nothing profitable. Here do some, more truly I think than appositely to the meaning of the Apostles, say, these injuries are profitable to us; because the patience shall not go without reward. To me the Apostle seemeth to have conside­red the universal end proposed to that or­der, which is the publique tranquillity, Bene Chriso­stomus: [...]. princeps nimirum Evergelium praedicanti. De­dolat ille quod tu descobtuas,, wherein also is comprehended the peace of every one. And truly, 'tis not to be doubted, but that for the most part we attain unto this good by the publique powers: for no man wisheth ill unto himself: now, the Rulers fecilitie con­sisteth in the felicitie of his subjects. Sint quibus imperes. Dictam hoc Sullae aiunt Plutarchus, Florus & alii, unde [...]sit August nus l. 3. c. 28. de Civ. Dci. Let there be, whom thou mayst rule, said One. The Hebrews have a proverb: If there were no Government, one man would devour another alive. Which sense is in Chrysostom too: Unless Cities had Rulers, we should lead a life more wilde than the wilde beasts, not biting only but eating us one the other Est hoc de statuis lexto: sed & noc Tolletribunolia, & omnem de vita tranquilli­tatem abstuler is. Deinde, N [...] mibi illos. efer, qui mole usi sunt bonorivus, sed ipsius insti­tuti vide pul­chritudinem, & sapientiam ejus admirabilis qui primus ejus aucter suit. I­dem ad Ro­manos: Magistratus siabstuleris, perierint omnia, non urbes stabunt, non agri, non sorum, nec quicquam aluid. Evertentur omnia, & for­tioris esea fiet quilibet infirmier. Idem sensus apud eundem ad E­phes. 5.. But if at any time Rulers are transported by too much fear, or anger, or other affections diverting them from the way that leaderh to tranquiility, that is to be accounted among accidents less frequent, and which, as Tacitus saith, are [Page 141] recompensed by the intervenience of bet­ter things. Now, Lawes content them­selves with bearing a respect to what fal­leth out for the most part, as Theophra­stus said; whereto is pertinent that of Cato, No Law is perfectly commodious; L. [...] D. de Legib. [...]. 3. in fint. D. de pet. h [...]ered. Liv. lib. 34. this onely is enquired, if it be profitable to the greater part and in the main. But the things that happen more rarely, are not­withstanding to be bound up in common rules, because although the reason of the Law in this speciall fact especially hath not place, yet the reason abides in its ge­nerality, whereunto the specials are to be subject. For that is better than to live without rule, or that the rule be left to every ones pleasure. Seneca to the pur­pose: better it was, that even the just Sin. de ben. cap. 16. excuse of a few should not be accepted, than that all men should attempt to make some excuse. Here also hath place that speech of Pericles Thucydid. lib. 2. q [...]icum bene convenit illud Ambrofii lib. 3. dc Offic. Eadem singulo­rum est utilitat quae universo­ium. Et illud in jure: Semper non quod priva­tim interest uni ex sociis serva­ri debet, sed quod Communi societati expe­dit. L. Actio­nes. sect. La­beo. D. pro Socio., never enough re­membred: Thus I conceive, that the Commonwealth which is well in the ge­neral is better for particular men, than where private estates are flourishing, and the publique is sick. For he that hath his domestique fortunes wel settled, his coun­try being overthrown, must needs fall with it. But he whose private estate is decayed in a prosperous Commonwealth, is thereby much more easily repaired. Wherefore, when the publique may sustain losses of particular men, But particular men can­not make amends for the publique calami­ties, [Page 142] why should we not all joyn together in maintaining the common Interest, [...] doing as you do, while you are astonis [...] at your private dammage, betraying the Commonwealth. The sense whereof is in brief express'd by Lib. 26. Livy thus: The Com­monwealth being safe, secures the private estates easily; in vain shall you keep your own, if you betray the publique Plato dixerat legum 4. Quod commune est connectit civi­tates, quod sin­gulorum dissi­pat; quare & publice & pri­vatim utilius est, ut publica magis quam pri­vata curentur. Xenophon ve­ro: Qui in bel­ls contra ducem seditiose se ge­rit, facit hoc cum suae salutis periculo. Eodem & illa Jambli­chi pertinent: Non disjuncta & privata uti­litas à publica, i [...]ò in bono communi singu­lare etiam con­tinetur: & ut in enimalibus cae­tera (que) natura, it a in civitati­bus, in totius salute salus est partium.. Non among things concerning the publique, the principal no doubt is that order, which we have said, of ruling and obeying: and that cannot consist with a private licence of resisting. I desire to explain this by a noble passage in Dio Cassius: Truly I think it not becoming, that the Ruler of a City should give place to his subjects, nor is there hope of safety if they will com­mand, whose duty is to obey. For consider, what order will be in a family if the elder be despised by the yonger; What method in a school, if the learners care not for the teachers; how can the sick recover their health, if they will not in all things be obedient to their Physicians; how can Seamen escape danger, if the Saylors will not hearken to the commands of their Masters. For by nature it is necessary and safe for men, that some should govern, and some be subject.

LXV. The second proof, out of S. Peter.

TO Paul let us add Peter as a fit com­panion: his words are these; Honour 1 Epist. 2. 18, 19, 20. the King: Servants be subject to your Masters with all fear, not only to the good and gentle, but also to the froward. For this is thankworthy, if a man for conscience toward God endure grief suffering wrong­fully. For what glory is it, if when ye be buffeted for your faults, ye shall take it pa­tiently? but if when ye do well, and suf­fer for it, ye take it patiently: this is ac­ceptable Tertullian. de poenitentia. Timor hominis Dei honor est. with God. And when he con­firmes this by the example of Christ. The same sense also is expressed in Clement's Constitutions in these words: Let a ser­vant fearing God bear a good affection to his Master, though ungodly, though un­just. Two things are to be noted here. First, that the subjection due to masters, even to the froward, is also to be referd to Kings: for that which followes, built on the same foundation, respects no less the office of subjects than of servants. Second, the subjection requir'd of us is such as carries with it patience of inju­ries. So is it usually said of parents:

And a youth that had long frequented Zeno's school being asked, What he had learned there, answerd, To bear my Fa­thers [Page 144] anger. Justin of Lysimachus: Wit [...] a good coutage he receiv'd disgrace fro [...] the King, as from his father. And it [...] in Livy; As the hardness of parents, so i [...] that of our Countrey to be mollified by pa­tience and sufferance. It is said in taci­tus, The natures of Kings must be end [...] ­red: and again, We must pray that we may have good Emperors, and tolerate th [...] bad [...]pud persas, laudante Clau­diano, Quam­vis crudelibus aequè Paretur dominis..

LXVI. Further proof from the examples of the antient Christians.

FRom this Law of our Lord, the pra­ctice Ad quam per­tinet Canon 18. Concilii Chal­cedonensis, repe­titus Canone 4. Concilii in Trul­lo: Concilium Tole [...]num 4. Capitulum 2. Caroli Calvi in villa Colonia. Synodus Suessi­onensis canone 5. of the antient Christians, the best interpreter of the Law, departeth not. For although very ill men often pos­sessed the Roman Empire, nor were there wanting who under colour of relieving the commonwealth oppos'd themselves a­gainst them, yet the Christians never ad­joyned themselves to their enterprizes. In Clements's Constitutions we read, It is unlawfull to resist the Royal power. Ter­tullian in his Apologetique saith: Whence are those Cassii, Nigri and Albini? Whence are they that set upon Caesar between the two laurels? whence are they that sh [...]w their palestric art in stopping his breath? whence are they that break into the palace armed, bolder than all those Xiphilinus Domitiano: Insidias autem ei communicato inter se consilio struxere Parthe­nius praepositus cubiculariorum, & Sigerius, & ipse è cubicula­riis. Martial. l. 4. Sigerios (que) mero [...], Parthe­nios (que) sonas. Corruptum id nomen non modo hic in Tertulliano suerat, sed ad­huc est in Suc­tonio, ubi Sa­turius, & in Vi­ctore vulgari ubi Casperius legitur. Sigerii (so the MS. plainly, in the library of the most worthy Puteans) and bolder than the Parthenit? They were of the Romans, [Page 145] unless I am deceiv'd, i. e. of such as were not Christians. That which he saith of the palestrick art pertains to the death of Commodus, wrought by the hand of a palestrite at the command of the Prefect Aelius Laetus: than which Emperour yet, scarce any was more wicked. Par­thenius, whose fact likewise is detested by Tertullian, was he that had slain the Emperour Domitian. To the [...]e he com­pares Plautianus the Praetorian Prefect, who designed to kill Septimius Severus, a very sanguinary Emperour, in his palace: Against the same Severus, took armes, as on behalf of the Commonwealth, in Sy­ria Pescennius Niger, in Gallia and Bri­tain Clodius Albinus: But their enter­prize also displeased the Christians, which Tertullian likewise boasteth of to Scapu­la: We are defamed concerning the Empe­rours Majesty: yet could the Christians never be found, either Albinians, or Ni­grians, or Cassians. Cassians were they that followed Avidius Cassius an emi­nent man, who having taken up arms in Syria, pretended he would restore the Commonwealth, undone by the negli­gence of M. Antonius. Ambrose, when he thought injury was done, not to him­self alone, but to his flock, and to Christ, by Valentinus the son of Valentinian, would not use the commotion of the people ready enough to make resistence. Idem Am­bros. ep. 33. Vultis in vin­cularapere? vo­luntas est mihi. Non ego me val­labo circumfu­sione populorum. Imitatus est magnus Gre­gorius lib. 6. epist. 1. Si in morte Longobar­dorumme misce­re voluissem, ho­die Longobar do­rum gens nec Regem, nec Du­ces, nec Comites haberet, at (que) in summa confu­sione esset divi­sa. Violence, saith he, Lib. 5. Orat. in Auxent. In­seruit Gratia­nus caus. 23. quaest. 8. being offerd, I have [Page 146] not learned to resist: I can grieve, I can weep, I can sigh: against armes and sol­diers, oven Goths, my arms are my tears. For such are the muniments of Priests. In any other sort, neither ought I, nor can I resist. After: It was required of me, that I should restrain the people: I answerd, it was in me, not to raise them; in Gods hand, to quiet them. The same Am­brose would not use the forces of Maxi­mus against the Emperour, being both an Arrian and a persecutour of the Church. So was Julian the Apostat, Theodoret. hist. Eccles. lib. 5. cap. 4. when he plotted the Churches ruine, re­pressed by the tears of Christians, as Na­zianzen saith, adding. This was the on­ly Orat. 1. in Ju­lian. remedy against a persecutor. And yet almost all his Army was made up of Christians. Adde hereunto, that, as the same Nazianzen observes, that persecu­tion of Julian, was not onely injurious to the Christians, but had brought the Commonwealth also into extreme dan­ger. We will close up this with a saying of Augustin, where he explaines the words of Paul to the Romans: It is ne­cessary for this life we should be subject, Prop. 74. not resisting, if they (the Governors) shall please to take any thing from us.

LXVII. It is not lawfull for inferiour Magistrates to make war upon the Highest.

OUr age hath brought forth men, learned indeed, but too observant of times and places, who perswaded them­selves first (for so I believe) and then o­thers, that the things above spoken have place among private persons, not also a­mong inferiour Magistrates P. Martyr ad Judicum 3. Paraeus ad 13. cap. ad Rom. Jun. Brutus. Danaeus lib. 6. polit. & alii.: who (as these men thinke) have a right to resist the injuries of the Soveraign; yea they sin, unless they do resist. This is not to be admitted. For as in Logick the inter­mediate Genus spe­ciale, Sen. epist. 58. species, if you respect the genus, is species; if the species below it, is genus: so these Magistrates, in regard of their in­feriours are publique persons, but in rela­tion to their superiours are private. For all faculty of governing, which is in Ma­gistrates, is so subjected to the highest Power, that whatsoever they do against the will of the soveraign, is destitute of that faculty, and therefore to be accoun­ted for a private act. For, that saying of the Philosophers hath place here also, Averroes 5. Metaph. tom. 6. Ordinem non dari nisi cum relatione ad ali­quid primum. There can be no order without relation un­to somewhat which is first. Who think otherwise, to me they seem to introduce such a state of things, as the Antients feign to have been in heaven before the the Rise of Majesty, when they say the [Page 148] minor Gods yeelded not to Jove. But the Order (which I have mentioned) and Sic in familia paterfamilias primus, inde materfamilias, inde filii, mox ordinarii servi, postremo servi vicarii. vide Chrysost. 1 Cor. 13. 3. subalternation is not onely known by common sense Unde illud, Omne sub reguo graviore regnum est: Et Papinii illud, Vice cun­cta reguntur, Alternis (que) re­gunt: Et Au­gustini dictum celebre, Ipsos humanarum re­rum gradus ad­verte, si aliquid jusserit Curator, faciendum: non tamen si contra Proconsul jube­at: aut si Con­sul aliquid ju­beat, & aliud Imperator. Non utique contem­nis potestatem, sed eligis majori servire: n [...] hine debet minor irasci, si major praelatus est. Et hoc ejusdem de Pilato, Talem quippe Deus dederat illi potestatem, ut esset etiam ipse sub Caesaris potestate., but proved also by di­vine authority. For the 1 Ep. 2. Prince of the A­postles would have us to be subject other­wise to the King, otherwise to the Magistrates: to the King as supere­minent, i. e. without any exception, beside those things which are directly commanded by God, who approves pa­tience of injury, forbids it not: to the Ma­gistrates, as sent by the King, i. e. deri­ving their power from him. And when Paul requires every soul to be subject to the highest powers, he included also the inferiour Magistrates. If we look back upon the Hebrew people, where so many Kings were contemners of divine and hu­man Law, we shal never finde that the in­feriour Magistrates, amongst whom were very many men pious and valiant, took so much upon them, as to oppose any force against the Kings, unless they had re­ceiv'd from God, who is King of Kings, a speciall mandate. But on the contrary, what is the duty of Peers, 1 Sam. 15. 30. Samuel shews, when in the sight of the Peers, and peo­ple, with accustomed veneration he at­tended Saul now ruling perversly. More­over, the state of publique Religion al­wayes depended on the will of the King [Page 149] and Sanedrin. For, that the Magistrates and people, after the King, promised their fidelity to God, this must be understood so far as it was in the power of every one. And more, the images of false Gods, pub­likly exstant, we never read to have been thrown down, unless by command either of the people in the free State, or of the Kings if they ruled. Howbeit, if at any time any thing was done by force against the Kings, it is related for testimony of divine providence permitting it, not for approbation of humane fact. The Au­thors of the contrary opinion are wont to object a saying of Trajan, when he gave a sword to the Praetorion Prefect; Hoc pro me utere, si recte impero; si male, contra me. Use it for me, if I govern well; if ill, against me. But we must know that Trajan, as ap­pears by Plinio's Panegyric, was very studious to shew nothing regal, but to act a Quod postea imitati Pertinax & Macrinus, quorum oratio­nes egregias a­pud Herodia­num vide. Dion. lib. 6. true Prince, subject to the judg­ment of Senate and people, whose de­crees the Prefect's duty was to execute even upon the Prince himself. Like to this is that we read of M. Antoninus, who would not touch the publique mo­ney without the advice of the Senate.

LXVIII. In case of extreme and inevi­table necessity, what may be done.

THis is a greater question, whether the Law of not resisting bind us in ex­treme and most certain danger. For even [Page 150] some Laws of God, although general­ly exprest, have a tacit exception of ex­treme necessitie: which in the time of the Hasmoneans was defined by wise men concerning the Law of the Sabbath Whence it is a common saying, Peril [...] life drives away the Sabbath: and a Je [...] in Synesius gives this reason of neglectin [...] the Law of the Sabbath, We were brought Vide etians ver­ba Jonathan. 1 Macc. c. 9. 44. into most certain danger of our life. Whi [...] exception is approv'd by Christ himself as also in another Law of not eating th [...] shew-bread. And the Hebrew masters out of the old tradition, adde the same exception to the laws of forbidden meats and to some other: And rightly; Not, that God may not bind us over to cer­tain death, if he please; but, because certain laws are of such an argument, that it is not credible they were given out of [...] rigid a will. Which holds more strongly in humane laws. I deny not, but even a humane law may command some act of vertue under certain peril of death, a [...] the law of not deserting ones Vide fose phum ubi de cu­stodibus Saulus agit. Polyb. [...]. Station but we must not rashly conclude, that was the will of the Law, maker; nor d [...] men seem to have taken so much right o­ver themselves and others, but so far a [...] extreme necessity requires it. For laws are wont (and so they ought) to be made by men with sense of humane im­becillity. Now the law of which we speak, seemes to depend upon their will, wh [...] [Page 151] first consociate themselves into civill so­ciety, from whom thenceforth a right flowes and comes unto the Rulers. And these, if they were asked, whether their will was to impose upon all this burden, to dy rather than in any case to repell by force the force of their superiours, I know not whether they would answer, it was their will, unless perhaps with this additament; if resistance cannot be made without very great perturbation of the Commonwealth, or the destructi­on of very many innocent persons. For, what in such a circumstance charity would commend, may be also, I doubt not, deduced into a humane Law. One may say, that rigid obligation, to dy ra­ther than ever to repell any injury of su­periours, proceedeth not from humane law, but from divine. But we must note, Men at first, not by divine precept, but drawn of their own accord upon expe­rience of the infirmity of divided families to defend themselves against violence, closed together in the bond of civill so­ciety: whence civill power hath its spring, which therefore Peter calls a hu­mane ordinance 1 Pet. 2. 13. Rom. 13. , though elsewhere too, it is called a Divine ordinance, because God approved this wholsome institution of man. But God, approving humane law, is supposed to approve it as humane, and in a humane manner. Barclay, the most Barclaius lib. 3. adv. Monar­chom. cap. 8. stour defender of Regall Power, descen­deth [Page 152] yet so farr, as to grant the people, and an Insigni parti. eminent part thereof, a right of defending themselves against immane cruelty; when yet the same Author ac­knowledgeth Lib. 6. c. 23. & 24. the whole people to be sub­ject to the King. I do easily conceive, the more value that is of which is con­served, the more equity it is, which give us an exception against the words of of the Law: nevertheless, indistinctly to condemn either single persons, or a le [...] part of the people, which heretofore hath used the last safeguard of necessity, so, as to have respect in the mean time to the common good, Vix ausim. I scarce dare. For David, who, except a few acts, hath testimony of a life exactly conformed to the laws, 1 Sam. 22. 2. & 23. 13. had about him armed men, first four hundred, and then a greater number; to what purpose, but to keep off violence, if it should be offered. But withall, this is to be noted, David did not this, till after he had found, both by Jonathan's disco­very, and by very many other most cer­tain arguments, that Saul sought after his life; And then, neither invades he Ci­ties, nor takes occasions of fighting, but retreats and hides himself, sometimes in the wilderness, sometimes amongst other people, and hath a religious care never to hurt his own Country. Parallel to this may seem the action of the Maccabees. For, that some defend their arms upon this title, as if Antiochus had not been [Page 153] King but an Invader, I think it vain; when the Maccabees and their follow­ers, in all the history, never call Antio­chus by any other but the name of King: and rightly, when long before the He­brewes had acknowledged the Macedo­nian Power, into whose right Antiochus succeeded. As for that prohibition to set an alien over the people, that Law is to be understood of voluntary election, not of what the people was compeld to do, drawn by necessity of the times. And for that which others say, that the Macca­bees used the right of a people, who had liberty [...]. to live by their own laws, it is not firm neither: for the Jews, subdued first to Nebuchodonosor by the law of war, by the same law were subject to the successors of the Chaldaeans, the Medes and Persians: all whose Empire devolved to the Justin. lib. 36. Primus Xerxes Rex Per­sarum Judaeos domuit, postea cum ipsis Persis in ditionem A­lexandri magni venere, diu (que) in potestate Mace­donici Imperii suere. A Deme­tri [...] cum desci­vissent, amici­tia Romanorum petita, primi omnium ex Ori­entalibus liber­tatem recepe­runt, facile tunc Romanis de alieno largi­entibus. Macedonians. Hence are the Jewes call'd by Tacitus. Vilissima pars servientium. Tac. Hist. 1. 5. The most vile part of those that serve, while the East was in the power of the Assyrians, Medes and Persians. Nor did they covenant for any thing with Alexander and his suc­cessors, but without any condition came under their dominion, as before they had been under Darius. But if the Jews were sometimes permitted to have open exer­cise of their Rites and Laws, this was a precarious right, arising from the favour of the Kings, not from any law or con­dition annexed to the Government. There [Page 154] is nothing therefore that can clear the Maccabees, besides extreme and most cer­tain danger: to wit, so long as they con­teind themselves within termes of sel [...] defense, so, as to retire into devious pla­ces, after David's example, to secure themselves; and not to enter into batta [...] but when they were assaulted.

LXIX. The King's Person Sacred.

MEan while, this caution is to be ob­served, even in such a danger the person of the King must be spared: which they that think David did, not out of any necessity of duty, but out of some higher design, are much mistaken. For David himself plainly said, No man can lay 1 Sam. 26. 9. Exod. 22. 28. Optat. l. 2. hands upon the King, and be innocent. Well he knew, 'twas written in the law, Thou shalt not revile the Gods (that is, the highest Judges) nor curse the Ruler of thy people. In which law the speciall men­tion made of the eminent powers, evi­dently shewes something speciall to be commanded. (Wherefore Optatus speak­ing of this fact of David saith, He was hindred by a full remembrance of the di­vine commands. Josephus de Davide. sed statim paenitudi­ne ductus, inju­stum facinus esse dixit, De­minum suum occidere. Et post: Horren­dum, regem quamvis ma­lum interficere, poenam enim id facienti immi­nere ab eo qui regem dedit. And he puts these words into Davids mouth, I was willing to ore­come my enemy, but that I chose rather to keep the Command of my God.) Now, for evill words that are false, it is not lawfull to cast them at a private person: [Page 155] against a King therefore we must not use them, when they are true. For, as the Writer of the Problems, which bear A­ristotles Problem. sect. 40. name, affirmeth, He that re­proacheth the Ruler is injurious to the City Julianus Mi­sopogone: Sunt enim leges severae pro prin­cipibus, ita ut qui in principtm injuriosus fue­rit, is ex animi libidine concul­caverit leges.. And if the Ruler must not be of­fended with the tongue, much less cer­tainly with the hand: whence we also read, that David's heart smote him for violating the garment of the King; so much did he apprehend the sanctitude of his person. And not without cause: For sith the highest power cannot but ly open to the hatred Quintil. De­clamat. 348. Hanc esse con­ditionem omni­um, qui admi­nistrationem reipub. aggredi­untur, ut ea quae maxime perti­nent ad salutem commanem, cum quadam sui in­vidia efficere cogantur. Vide ea de re Liviae verba ad Au­gustum apud Xiphil. ex Dione. of many, the Rulers per­son was with a peculiar fense to be se­cur'd. The Romans made a Constitution that the Tribunes of the common people should be inviolable. The Essenes had a saying, that Kings are to be accounted sacred Plutarch. Agide: Nec fas, nec licitum regis corpori manus inferre. Insigne illud apud Hometum:- Nam pro po­puli pastore timebat, Ne quid ei accideret. Bene Chrysostomus 1 Tim. 1. Si quis ovem jugulet ab eo gregem immi [...]ui: ut si quis pa­storem de medio sustulerit ab eo totum gregem dissipari. Seneca lib. priore de Clem. c. 3. Somnum ejus [...]octurnis excubiis muniunt: late­ra objecti circumsusi (que) defendunt: incurrentibus periculis se apponunt. Non hic est sine ratione populis urbibus (que) consensus, &c.. It is in Curtius, that the na­tions which are under Kings, reverence their Kings as Gods. And Artabanus the Persian saith: Apud Plu­tarch Theraistocle. Amongst our many good Laws, this is the best, that the King is to be reverenced and adored, as the Image of God the Saviour of all.

LXX. Of Christian subjection.

TIs a greater question, whether so much as was lawfull for David, and lawfull for the Maccabees, be allowed unto Christians; whose Master so often commanding his disciples to undertake the cross, seems to require a patience more exact. Certainly, where Superiours threa­ten Christians with death for religion sake, Christ gives them leave to fly; them I mean whom necessary office binds not to any place: beside flight he permits nothing, And Peter saith, Christ, when he suffered, left us an example to follow; Who did no sin, neither was guile found 1 Pet. 2. 22, 23. in his mouth: Who when he was reviled, re­viled not again; when he sufferd, he threat­ned not; but committed himself to him that judgeth righteously. The same Apostle bids Christians give thanks to God, and 1. Pet. 4. 13. &c. rejoice, if they suffer as Christians. And surely, by this patience most of all, we finde Christian religion to have prevailed and spread it self. Wherefore, in my opi­nion, the antient Christians, who, coming fresh from the disciplin of the Apostles and Apostolical men, did more perfect­ly both understand and obey their pre­scriptions, are very much injur'd by them, who think the reason why they defended not themselves in most certain perill of death, was, because they wanted [Page 157] not will, but strength. Imprudent, no doubt, and impudent had Tertullian been, if, before the Emperours, who could not be ignorant of the truth, he had so confidently dared to tell a ly: If we were willing (saith he) to use open hosti­lity, should we want numbers and forces? We have fill'd your Cities, Ilands, Castles, Towns, Camps, Palace, Senate, all your places, but your Temples. And were our forces unequal to yours, we might easily make war upon you, when we are so wil­ling to be slain, if our Religion did as well allow us to kill, as to be killed. Here also Ad Deme­trianum. Cyprian followes his master, and openly proclames; Hence it is, that none of us, when he is apprehended, resisteth: nor re­vengeth himself against your unjust vio­lence, albeit our people is exceeding nu­merous. Our security of the future re­venge makes us patient. The innocent yield unto the nocent Ejudem haec libri primi epistola 1. In­tellexit (ad­versarius) Chri­sti milites vigi­lare, jam sobrios & armatos ad praelium stare, vinci non pesse, mori posse; & hoc ipso invictos esse, quia nec mori timent, nec repugnare con­tra impugnan­tes, cum occide­re innocentibus nec nocentem li­ceat, sed promp­te & animas & sanguinem tra­dere.. And Lactantius Lib. 5. Lib. 6. qu. 10. in Jos. We put confidence in his Majesty, who can as well revenge the contempt of himself, as the labours and injuries of his servants. And therefore when we suffer such hor­rid things, we oppose not so much as a gainsaring word, but leave vengeance to God. Nor did Augustin look upon any thing else when he saith: Let not the just man especially have any other thoughts in these matters, but that he may undertake war to whom it is lawfull, for to all it is not lawfull. And this is his: As oft as [Page 158] Emperours are in errour, they make L [...] to maintain errour against the truth, [...] which laws the righteous are exami [...] and crowned. The same elswhere: Princ [...] are so to be borne with by the Common [...] Epist. 166. and Masters by their servants, that by the exercise of patience temporall things m [...] be endured, and eternall things assured Which in another place he explains by the example of the antient Christians thus. The City of Christ, though as ye [...] De Civit. Dei. l. 22. travelling on earth, and having so gr [...] multitudes against ungodly persecuton, did not fight for temporall safety; but, to obtain eternall, refused to fight. They were bound, they were imprisoned, they were beaten, they were tormented, they were burn'd, torn in peeces, cruelly slain, and still they were multiplyed. They could not fight for salvation, unless for salvati [...] they did contemn their safety. And Cyrill [...] words upon that of John, concerning the sword of Peter, are of like sense, and no lesse to the purpose.

LXXI. The famous example of the Thebean Legion.

THe Thebaean Legion, as the acts do shew us, consisted if six thousand six hundred sixty six Soldiers, all Christians, Who, when Maximianus Caesar at Octo­durum compelld his Army to sacrifise to false Gods, marched away first to Agau­num: [Page 159] and, when the Emperour had sent some thither to command them to come to sacrifise, upon their refusall, Maxi­mianus commanded every tenth man to be slain, by his Serjeants. The com­mand was executed easily without resi­stence of any one. Mauritius De hujus Martyris ho­no [...]ibus apud Helvetios vide Guillemanum in veteri scrip­to de transla­tione sancti Justini in no­vam Cor­beiam: Unde juxta fidem Chronicorum sub atrocissima & incompara­bili illa decima post Neronem persecutione pas­sum eum colli­gimus: quae & prioribus perse­cutionibus im­manior, dum venerabilem multitudinem Martyrum coelis mitteret, inter quos etiam prae­cipuum S. Mau­ritii Collegium, & innocentiae speculum. De Thebaeis mar­tyribus Bruns­vicum transla­tis vide Crant­z [...]um Saxoni­corum. 7. 16. the chief of that legion, from whom Agaunum was afterward call'd Vicus Mauritii, at that time spake thus to his fellow soldiers, as Eucherius Bishop of Lions hath rela­ted: How afraid was I, lest any one by way of defense (which is easy for armed men) should attempt by violence to save those blessed men from death? For the re­straint wherof I was preparing the example of our Christ, who by the word of his own Command put up the drawn sword of his Apostle again into the sheath: shewing, that the vertue of Christian confidence is greater than all arms; that none should oppose the mortal work with mortal hands, but faithfully accomplish his undertaken duty with a persevering religion. After this decimation, when the Emperour gave the same command to the survivors, they all answer thus: Caesar, we are indeed thy soldiers, and have taken arms for defense of the Roman Commonwealth: nor have we ever been run-awayes or traytors; nor deserved any mark of dishonour for our cow­ardise. And willingly should we obey these your commands, unless the laws of our Christianity did forbid us the worship of [Page 160] Devils, and their altars alwaye's polluted with blood. We see, it was your will, ei­ther to pollute Christians with sacrileges, or to terrify us by slaying every tenth man. You need not make any long search after us. Know that we are all Christians. You shall have all our bodies subject to your power: but our souls look up to Christ their Lord, and you shall not lay hold on them. Then Exuperius the Ensign-bearer of the Legion, is related to have spoken to them in this manner: My right valiant fellow­soldiers, you perceive I carry the ensign of secular war: but I provoke you not to these arms; I call not your vertue and courage forth to these wars: Another kind of fight is to be chosen by you. You cannot, by these swords, attain unto the heaven­ly Kingdom. Afterward, he desires these words should be reported to the Empe­rour: O Emperour, desperation, which is most valorous in dangers, hath not armed us against thee. Behold, Similia sunt illa Judaeorum Alexandrino­rum ad Flac­cum: Inermes sumus, ut vides. Et tamen sunt qui nos tan­quam hostes publicos hic cri­minantur. Etiam tas quas ad no­stri tutelam par­tes dedit natura retro vertimus, ubi nibil habent quod agant. Cor­pora praebemus nuda ac patien­tia ad impetum earum qui nos volent occidere. we have wea­pons in our hands, yet do we not resist: be­cause we had rather dy, than overcome; and perish innocent, than live rebell [...]. And again; We throw down our arms: thy officer shall finde our hands without weapons; but our heart armed with the Catholique faith. After this follows the slaughter of them not resisting: in the nar­ration whereof, these are the words of Eucherius Ne justi pu­nirentur mul­titudo non ob­tinuit: cum multum (ma­le editur, mul­rotum) esse soleat quod multitudo de­liuquit., The multitude availed not to free the just from punishment: albeit the [Page 161] crime is wont to go unpunisht, when the multitude is the delinquent. In the old Martyrology the same thing is related on this wise. They were promiscuously slain with swords; without contradiction: yea, their arms being laid down, they offered their throats to the persecutors, or their uncovered body; neither provoked by their own multitude, nor by the motion of arms, to endeavour to assert the cause of righte­ousness by the sword; but, mindfull of this alone, that they confessed him, who not re­claming was led to the slaughter, and as a lamb opened not his mouth; They also, as a flock of the Lords sheep, sufferd them­selves to be torn in peeces, as it were by wolves running on them. Vide excerpta ex Joanne An­tiocheno, ex MS. lib. viri aeterna memoria dignis­simi Nicolai Peiresii. Valens im­piously and cruelly raged against them, who according to the holy Scripture and the tradition of the Fathers professed The identity of nature of the Father and Son. 1 Pet. 2. 21. [...], who, although a very great num­ber, never defended themselves by force. Certainly, where patience is prescribed us, we see the example of Christ is oft brought in, and even now we heard it alleged by the Thebaean soldiers, as an example to be imitated by us; the exam­ple I say of Christ, whose patience ex­tended it self even to the Death. And he Mat. 10. 39. Lu. 9. 34. that so loseth his life is truly pronoun­ced by Christ to have sav'd it.

LXXII. In what cases force it lawfull against a Prince.

WE have said, Resistence is not lawfull against the highest pow­ers. Now, lest the Reader think, they offend against this rule, who indeed offend not, we must adde some advertise­ments. First then, Princes that are un­der the people, whether from the begin­ning they received such power, or after­ward it was so agreed, as at Lacedaemon, Plutarchus Lysandro: Spartiatae regem ad capitis judi­cium vocarunt, quod ille decli­nans fugit Te­geam. Idem Sulla: Quibus­dam regibus Spartiatae reg­num ademerunt, ut ineptis regno, quippe abjectis nihili (que) homini­bus. De Agide injuste, sed damnato ta­men, vide cun­dem Plutar­chum. Mosy­naeciregem media punie­bant. Mela lib. 2. if they offend against the Laws, and the Commonwealth, may not only be repel­led by force, but, if need require, pu­nished with death: which befell Pausa­nias King of the Lacedemonians. And, sith the most antient Kingdoms through Italy were of this kinde, it is no wonder, if, after the relation of most cruell things done by Mezentius, Virgil addes: Then all Etruria flam'd with ajustire: Et aruspex Etruscus in Mezentium insurgent bus: —Quos justus in hostem Fert d [...]r. And call for the Kings bloud to quench the fire. Secondly, if a King, or any other hath abdicated his Empire, or manifestly ac­counts it as forsaken, after that time all things are lawfull against him, as against private man. Yet is not he to be judged to desert his estate, who manageth it somewhat negligently. Thirdly, 'tis the opinion of Lib. 4. c. 16. Barclay, if the King alienate his Kingdome, or sub­ject it to another, he forfeits it. I stop

[Page 163] For such an act, if a Kingdom be con­veyed by election or by successory law, is null: and therefore can have no effect of right. Whence also, concerning an Usufructuary, to whom we have com­pared such a King, it seemes to me the truer opinion of Lawyers, that, if he Instit. de usus. §. fruitur. L. Usufr. D. de jure dotium. yield his right to an extraneous person, his act is nothing. And, as to that, that the usufruit reverts to the Lord of the pro­priety, it is to be understood, in due time. But, if a King really attempt even to de­liver up, or subject his Kingdom, I doubt not, he may be herein resisted. For, as we have distinguished afore, the Empire is different from the manner of holding it: which manner, the people may hin­der from being changed; for that is not comprehended under the Empire. Hither you may fitly apply that of Seneca in a Lib. 2. contr. 9. case not unlike: Though a son must obey his father in all things, yet not in that, whereby he is made to be no father. Fourthly, the same Barclay saith, a King­dome is lost, if the King be caried with a truly hostile minde to the destruction of the whole people Paricausa tri­bunus plebis qui sit, ipso jure de­sinere esse talem, ingeniose desen­dit Gracchus, cujus verba dig­na lectu apud Platarchum., which I grant. For, the will of ruling, and the will of destroying cannot consist together. Wher­fore, he that professeth himself an enemy of all the people, thereby abdicates the Kingdom; but this seemeth scarce possible to happen in a King, that is himself, that rules over one people. It may happen, [Page 164] if he rule over more than one, that in fa­vour of one people, he may will the ruine of another, to make Colonies there. Fiftly, if a Kingdome be committed; whether by felony against him whose Fee it is, or by a clause put in the very grant of the Em­pire, that, if the King Vide de regno Arragoniae Ma­rianam l. 8. do so or so, the subjects be loosed from all bond of obe­dience; in this case also, the King falls back into a private person. Sixtly, if a King hath one part of the supreme power, the People or Senate the other part Exemplum ha­bes in Genuat. repub. apud Be­zarum lib. 18. in Bohemia tem­pore Wences [...]i historiae lib. 10. Adde Azorium instit. moral. l. 10. c. 8. & Lambertum Scasnaburgen­sem de Henr. 4., a­gainst the King invading that part which is not his, a just force may be opposed, because so far he hath no power. Which, I think, hath place, notwithstanding it be said, the power of war is in the King. For that's to be understood of forein war: when otherwise, whosoever hath part of the supreme authority, cannot but have a right to defend that part. When this comes to pass, the King may also, by the Law of war, lose his part of the Em­pire. Seventhly, if in the conveyance of the Empire it be conditioned, that in a certain case Exempla vide apud Thuanum hist. 131. in nar­ratione anni 1604. & l. 133. in anno 1605. utrum (que) de Hungaria: apud Meierum narra­tione anni 1359. in Brahamia & Flandria. narra­tione anni 1468. in foedere inter Regem Galliae & Carolum Bur­gundum. Adde de Polonia quae hobet Chytraeus Saxonicorum 24. & de Hun­garia Bonsinius Decadis 4. libro 9. resistance may be made a­gainst the King, although it cannot be supposed, part of the Empire is thereby reteined, yet is there reteined some natu­rall liberty, and exempted from the Re­gall power. And, he that alienateth his right, may abate of that right by cove­nant.

LXXIII. How far we must obey an Invader of anothers Empire.

WE have considered him which hath, Vict. de potest. Civ. n. 23. Suarez de Le­gib. lib. 3. c. 10. num. 9. Lessius de just. & jurel. 2. c. 29. aub. 5. n. 73. or had the right of governing. It re­maines that we speak of the Invader of Empire, not after by long possession or by covenant he hath gotten a right, but so long as there continues the cause of pos­sessing it unjustly. And truly, whilst he is in possession, the acts of empire which he exerciseth, may have power to oblige, not out of his right, which is none, but from this, that it is most probable, He that hath the right of governing, whether people, King or Senate, had rather the Invaders commands should prevail and be of force, than utter confusion be brought in, the Laws and judgments taken away. Cicero condemnes Sylla's Laws of cruel­ty to the sons of the proscribed, that they could not seek for honours: Nevertheless, he thought they were to be observ'd, af­firming (as Quintilian tells us) the state of the City so to be contained in these Lib. 2. c. 1. Laws, that it could not stand if they were dissolv'd. Florus of the same Sylla's acts: Lepidus went about to rescind the acts of so great a man, deservedly, if yet he could without great damage to the Common­wealth. And a little after: It was expe­dient for the sick and wounded Common­wealth to take some rest at any hand, lest [Page 166] the sores should be opened and bleed t [...] much in the cure. Howbeit, in things [...] so necessary, and which pertain to the establishing of the Invader in his unju [...] possession, if without great danger obe­dience may be denied, it must not be gi­ven.

LXXIV. Whether it be lawfull to [...]d an Invader, or expell him by force? and in what Cases.

TO this question we frame this answer. First, if the Invador, by unjust war, and such as hath not the requisits accor­ding to the Law of Nations, hath seised on the government; nor hath there fol­lowed any agreement, or faith given him, but his possession is kept onely by force; in this case. the right of war seemeth to remain, and therefore it is lawfull to act against him as against an enemy, that may lawfully be slain by any, even by a private man. Against Traitors, said Ter­tullian, Apolog. 9. c. quando liceat. lib. 2. In reos Majistatis & publicos hostes omnis homo mi­les. and publick enemies, every man's a souldier. So also, against desertors of the war that run from their colours, all persons, for the common quiet, have a right indulged to them to execute publick revenge. And I am of Plutarch's Qui ita sentit ib. de sato ad Pisonem. opi­nion, that the same is lawfull, if, before the invasion, a publick Law were extant, giving power to every one to kill him, that shall adventure to do this or that, [Page 167] which falls under sight; as, that being a private man shall get a guard about him, or shall invade the Fort; that shall slay a Citizen uncondemned, or not by law­full judgment; that shall create magistrats without just suffrages. Many such Laws were extant in the Cities of Greece, in which therefore the killing of such Ty­rants was to be esteemed Lawfull. Such was at Athens the Law of Solon revived af­ter the return out of the Piraeeum, against the overthrowers of the popular State, and such as had born offices after the o­verthrow of it. As also at Rome the Va­lerian Plutarchus Publicola. Vt injudicatum occidere eum li­ceret qui domi­natum concu­pisceret. Mox addit: Solon ei qui domina­tum invadit de­prehenso diem dici vult. at Publicola etiam ante judicium talem permittit interfici. 2 Chron. 2 [...]. Law, if any one without the peoples will should take the authority of a Magistrate: and the Consular Law after the Decemvirate, that none should cre­ate a Magistrate without appeal; whoso­ever had done so, it should be lawfull to kill him. Moreover, it will be lawfull to kill the Invader, by the express authori­ty of the rightfull Governour, whether King, Senate or People: As also, of the Protectors of Children that are Kings, such as Jo [...]ada was to Joas, when he dethroned Athalia. Unless in these cases, I cannot yield it lawfull for a private person by force to evpell or kill an Inva­der of the highest power. The reason is, because it may be, the rightfull Gover­nour had rather the Invader should be left in possession, than occasion given to dangerous and bloody Commotions, that [Page 168] do usually follow upon the violating or slaying of those men, who have a strong faction among the people, or forein con­federates also. Surely it is uncertain, whe­ther a King or people be willing the State should be so endangered: and, without know [...]ege of their w [...]l, the force cannot be just. Favonius said: Civil war is worse than unlan full and usurped Goverment. And Cicero: Mihi pax om­ni cum civibus bello civili uti­lior videtur. C [...]c. Liv. l. 34 To me any peace with our Countrey-men seemeth more profitable than Civil war. Better it had been, said Titus Quintius, the Tyrant Nabis had been let alone at Lacedemon Quod P [...]tar­chus in T. Quintii vita sic expl cat: Cum vide [...]t ct si­ne gram alto­rum Laconum malo con posse tyrannum de­sicui. Non alie­num est ab hac re quod Plu­tarchus refert, Laconem quendam cum legisset, Hos, dum Marte pa­rant dominatum extinguere, sae­vus Ante Seli­nunti [...]oenia Mars rap [...]it: Respond sse. Mento viri illi pe [...]re. Exspe­ctare enim de­buerant ut ipse per se domina sus conflagraret., when he could not otherwise be thrown down, but with the grievous ruine of the Commonwealth, likely to perish in the vindication of her liberty. To the same purpose is that of Arist [...]hanes, A Lyon is not to be bred in a City; but if he be brought up, he must be kept. Verily, seeing it is a most weighty deliberation, whether peace or liberty be to be preferd, as Taci­tus speaks; and, in Cicero's opinion, it is a politick question of greatest difficul­ty, Whether, when our Country is oppres­sed by an Usurper, all endeavour is to be used against him, although the Common­wealth be thereby extremely endangered; Single persons ought not to arrogate un­to themselves that judgment which be­longs to the people in common. Nor can that saying be approv'd.

So did Sylla answer, being asked why he troubled his Country with taking arms: Appian. civ. 1. That I may free it from tyrants. Better is the advice of Plato, Cujus verba Lati e sic po­suit Cic. ep. fam. l. 1. Tantum conten­dire in rep. quan­tum probare tu [...] civibus possis: vim ne (que) paren­ti, ne (que) patriae [...]fferri o [...]ortere. in an E­pistle of his to Perdicca; In the Common­wealth, contend so far as thou canst ap­prove thy doings to thy Citizens; it is not fit to offer violence, neither to thy parent, nor to thy country. The sense whereof is extant in Salust Bell. Jugurth. too: For to over-rule thy country or thy parents, although thou art able, and canst reform what is amiss, yet is it uncivill; especially, seeing all changes in affairs of state portend slaugh­ter, flight, and other hostilities. Thomas 2. 2. Qu. 42. art. 2. saith, The destruction, though of a tyran­nical Government, is sometimes sediti­ous Huc & Am­brosii illud non male refe­ras: Adjuvat hoc quo (que) ad prosectum bonae existimationis si de potentis manibus eripias inopem, de morte damnatum eruas, quantum sine confusione fieri potest; ne videamur jactantiae magis facere causa, quàm misericordiae; & graviora inferre vulnera, dum minoribus mederi desideromus. De offic. 2. c. 2. Non longe abit illud Stallii apud Plutarchum in vita Bruti: Aequum non esse ut vir prudens ac sapiens improborum & desipientium causa in pericula & turbas se conjiciat. Jud. 3. 15. Nehem. 9. 27.. The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side: for the sacred Scripture plainly witnesseth, He was raised by God himself, and sent as an Avenger, to wit, by special command. And besides, it is not manifest, that this King of Moab had not some right of Government con­ditionall. Against other Kings also God [Page 170] executed his judgments by what hand he pleased, as by Jehu upon Joram. Lastly, 2. Reg. 9. it is to be noted, in a controverted case, a private man by no means ought to take upon himself to judge, but follow the possession. So did Christ command tribute to be paid to Caesar, because the Money Mat. 22. 20. bare his Image; that is, because he was in possession of the Empire.

LXXV. Who may lawfully wage war.

AS in other things, so in voluntary a­ctions there are wont to be three kinds of efficient causes, principal, adjuvant, and instrumental. In war, the principal is he, whose work is done; in private, a private person; in publick, the publick power, especially the highest. Whether, for those that stirr not themselves, war may be raised by another, we shall see elsewhere. Mean while, this we take for certain, naturally every one may vindi­cate his own right. Therefore were our hands given us. But, to profit another in L. servus. D. de serv. export. Cic. l. 2. Offic. ex Panetio. DD. ad leg. si quis in ser­vitutem. D. de su [...]. l. prohib. c. de jure fisci. what we can, is not only lawfull but commendable. The writers of Offices tru­ly say, Nothing is more serviceable to man, than another man. Now, there are divers bonds between men, which engage them to mutual aide. For kinsmen as­semble to bring help, and neighbors are calld upon, and fellow-citizens Unde illud, Porro Quiri­tes, & quiritari.. Aristo­tle said Rhet. ad Alex. e. 3., It behoveth every one, either to [Page 171] take arms for himself, if he hath received injury, or for his kindred, or for his be­nefactors, Bart. in l. Ut vim. D. de justi [...]. & jure n. 7. & 8. Jason ibid. n. 29 Panor. n. 18. Sylvest. in ver. Bellum. q. 8. or to help his fellows, if they be wronged. And Solon taught, that the Commonwealths would be happy, where­in every one would think anothers inju­ries to be his Plutarchus refert: Civ ta­tum illa felicis­si [...]è colitur, in qua qui injuriam non sensere, & qui sensere se oppo­nunt, & injuriam caeptantes puniunt.. But, suppose other obli­gations be wanting, the communion of humane nature is sufficient. No man is unconcerned in that which is humane.

M [...]nandri di­ctum est: Injuriarum si improbis auctoribus Reponeremus ultionem singuli, Nobis putantes fieri quod fit alteri, Inter nos juncti conspiratis viribus; Non praevaleret innocentia impetus Audax malorum, qui custoditi undi (que) Jussi (que) paenas quas merentur pendero, Aut nulli penitus essent, aut pauci admodum? It is a saying of Democritus: Our duty is, to defend the opprest with in­jury, and not ne­glect them: for that is just and good. Which is thus explained by Lactan­tius: Lib. 6. God, who hath not given wisedom to other living creatures, hath secured them by natural muniments from assault and peril. But to man, because he formed him naked and frail, that he might ra­ther furnish him with wisedom, he hath gi­ven, beside other things, this pious affection, whereby one is inclined to defend, love, cherish another, and afford mutual aid against all dangers. When we speak of Instruments, we do not here understand L. cum Cumus. C. de agricolis, lib. 11. arms, and such like things, but those per­sons, who act so by their own will, that [Page 172] their will depends upon another will. Arist. l. 5. de mo­ribus. cap. 10. L. Gracch. cap. de adul. Sen. 1. cont. 4. Thom. 2. 2. 40. art. 2. Sylvest. de bello p. 3. Such an instrument is the son to the fa­ther, being naturally a part of him: such also is a servant, as it were a part legal­ly. Democritus: Use servants as parts of the body, some for one thing, some for ano­ther. Now, as a servant is in the fami­ly, so is a subject in the Commonwealth; and therefore an instrument of the Ruler. And, no doubt, all subjects naturally may be used for war, but some are ex­empted by special Law: as of old ser­vants Servius ad 9. Aen. at Rome, now in most places Clerks Ac Levitae o­lim extra belli munia, ut nota­tum Josepho. De Clericis vide Nicetam Chro­ [...]iatem lib. 6. Caroli Calvi ca­pitulum in Spar­naco 37. in Gratiano c. cle­ricum. dist. 5. & causa 23. qu. 8. Et Canones qui­dem sic habent: sed quanto illi servati à Grae­cis quam à Latinis diligentiùs, vide Annam Comnenam.: which Law yet, as all of that kind, is to be understood with exception of extreme necessity. And so much be spoken generally concerning Adjutors and subjects: the specials shall be con­sidered in their proper places.

I. What are call'd justifick causes of War. Ex l. 2. c. 1.

LEt us come to the Cau­ses of Wars; I mean justifick: for there are also other which move under the notion of pro­fitable, distinct some­times from those that move under the notion of just: which Po­lybius accuratly distinguisheth one from 3. Hist. [Page 174] the other, and both from the Beginnings Exordit pu­guae, dixit Vir­gilius. of war, such as the Stagg in the war of Turnus and Aeneas. But although the difference 'twixt these is manifest, yet the words are wont to be confounded. For, the causes which we call justifick, Lib. 45. Li [...] in the Rhodians speech hath also called Beginnings: Certè vix ul­la gens tam diu constans mansit in spe­ct [...]dis belli causis. Poly­bius apud Sui­dam, voce [...], Rom [...] ­ni summopere id curarunt, ne priores ipsi fini­timis inferrent violentas ma­nus. Sed ut sem­per crederentur in hostem ire ad arrendas injuri­as. Ostendit id Dion egregia comparatione Romanorum cum Philippo Macedone & Antiocho in excerptis Pei­resianis. In quibns est, Valde id stu­dent Romani justa ut bella sus [...]iant, nihil (que) tale decernant sine causa ac temere. Certainly ye are the Ro­mans, who pretend that your wars are therefore prosperous, because they are just; nor do ye so much glory in the event of them, that you overcome, as in the be­ginnings, that you undertake them m [...] without cause. Eodem sensu [...] dixit Aelianus: & Didorus Siculus, l. 14. easdem vocat [...] & [...] dixit Procopius Gotth. 3. Dion. Halic. l. 8. Olynth. 2. Those justifick causes properly belong to our argument: where­to is pertinent that of Coriolanus in Ha­licarnass [...]nsis: I suppose, it ought to be your first care, that you take a pious and just cause of war Lib. 12.. And this of Demo­sthenes; As in houses, ships, and other buildings, the lowest parts ought to be most firm: so in actions, the causes and foundations [...]. Sic & [...] belli dixit Julianus 2. de laudibus Constantii must be true and [...]ust. To the same purpose is that of Dio Cassius; Lib. 12. We ought to have greatest regard of ju­stice; if this be preseut, the war is hope­full; if not, there is nothing certain to any one, though he have successe at first according to his minde. And that of Ci­cero De Repub. l. 3.; [Page 175] Those wars are unjust, which are undertaken without cause: who elsewhere reprehends Crassus for passing o'r Eu­phrates, when there was no Appianus ei­dem Crasso à Tribunis de­nunciatum di­clt; ne bellum Parthis inferrec nulla injuria cognitis. Plu­tarchus de co­dem: Coiba [...] multi indignan­tes esse aliquem qui bellatum iret in homines non modo nul­lius injuriae compertos, sed & pace defens [...]. Epist. 96. cause of war. Which is no less true of publique, than of private wars. Hence is that com­plaint of * Seneca: Do we restrain homi­cides and single slaughters? Why doe we not restrain wars, and that glorious wic­kedness of slaughtering Nations? Ava­rice and cruelty know no bounds. By the Decrees of Senate and people outrages are done, and things piivately forbidden are Idem Seneca de ira 2. c. 8. Progloria habi­ta, quae, quan­din opprimi pos­sunt, sceler [...] sunt. publiquely commanded. Wars, I grant, undertaken by publick authority, have some effects of Law, as also Sentences: of which here after: but they are not there­fore the less blamable, if there be no cause. So that Alexander, if without cause he warred upon the Persians and other nations, is, by the Scythians in Curtius, and by Seneca too, deservedly call'd a Robber Locus est de Benef. 1. c. 13. Non male Just. Ma [...]tyr Apo­log. 2. Tantum possunt Princi­pes qui opinio­nes vero praese­runt, quantum in solitudine la­trones. Philo: Qui magna furta committunt, qui honesto principatus nomine obum­brant ea quae reipsa nihil nisi latrocinia sunt., by Lucan a Spoyler, and by the Indian wisemen unjust [...]. Arrian. lib. 7., and by a certain pirate was drawn into the society of his crime. And likewise Justin relates, that two Kings of Thrace were spoyled of their Kingdom by his Father Philip, by the fraud and wickedness of a Robber. That of Augustin De Civ. Dei. l. 4. c. 4. Remota justitiâ, quid sunt regnani­si magna latrocinia. is to the [Page 176] same purpose, Take away Justice, and what are Kingdomes but great Robberies? To such agrees that of Lanctantius: De­ceived vith the shew of vain glory, they co­lour their wickedness with the name of virtue Lib. 1. de sal­sa relig. De Civit. 4.. Just cause of taking Arms can be no other, than injury. The iniquity of the adverse party brings in just wars, saith the same Augustin; where by iniquity [...]. he means injury [...].. So in the form of words used by the Roman He­rald; I call you to witness, that people is Sylv. de bel. c. 1. n. 2. unjust, and doth not performe what is right. Ego Vos testor, populum illum injustum esse, ne (que) jus persol­vere.

II. Three just causes of Wars.

THere are, according to most Authors, these three just causes of wars, De­fense, Recovery, Revenge Camillus ad Gallos, Liv. l. 5. Omniae quae defendi, repeti (que) & ulcisci fas sit.. In which enumeration, unless the word Recovery be taken more largely, is omitted the prosecution of that which is due to us: which Plato Alcibi [...]de. omitted not, when he said, Wars are waged, not onely if one be opprest by force, or robbed, but also if one by deceived. With whom agrees that of Seneca Lib. 3. de be­nes. c. 14., It is a most equal word, and conformable to the Law of Nations, Render what thou owest. And in the He­rald's formula it was: They have not gi­ven, nor paid, nor done the things they should. And in Salust, By the law of Na­tions Liv. lib. 1. In Historiis. I demand those things. Augustin, [Page 177] when he said, Just wars Servius ad 9. Aen. de Ro­manis: cum volebant bellum indicere, Pater patratus, h. c. Princeps Fecia­lium, proficisce­batur ad hosti­um fines, & praefatus anaedam so­lemnia, clara vo [...] dicebat, se bellum indicere propter certas causas: aut quia socios lae­serant, aut quia nec abrepta ani­malia, nec ob­noxios redde­rent. are those, that Lib. 6. q. 10. super Josue. revenge insuries, tooke the word revenge more generally for to take away: as the following words do shew, wherein is not an enumeration of parts, but an addition of examples: So is a nation or common­wealth to be opposed, which hath either neglected to avenge what was done wic­kedly by their men, or to render what was injuriously taken. Upon this naturall knowledge the Indian King, as Diodorus relates, accus'd Semiramis, that she be­gan a war, having received no injury. And so do the Romans Liv. l. 5. Apodict. 2. c. 2. require of the Senones, not to fight against them, that had done them no wrong. Aristotle saith: (Men war upon such as have pro­voked them by injury: and Lib. 12. Curtius of certain Scythians, They were manifestly the most just of all the Barbarians: they took not armes, unless they were provoked Plutarchus Nicia: Herculem etiam cuncta sub [...]gisse, dum lacessitus se defendit. Josep [...]us 17. antiquae hist. Quin id veniunt ut in nihil bestile cogitan [...]es violentas inserant manus, hi sunt, qui invitos cogunt ad arma semet tutatura confugere..

III. War is lawfull in defense of life; onely against an assail [...]nt: and in present certain danger.

THe first cause of just war is Injury not yet done, but offer'd either against Bo­dy or Goods. If the Body be assaulted by present force, with perill of life, not [Page 178] otherwise avoidable Sylv. in verbo Bellu [...], p. 1. n. 3. & p. 2. P. 1. n. 36., in this case war is lawfull, even with the slaying of him that brings the danger; as we have said afore, when by this instance, as mo [...] approved, we shewed that some private war may be just. Tis to be noted, this right of defense, by it self and primarily, springs from hence, that nature com­mends every one unto himself, not from the injustice or sin of the other, from whom the danger is Bartol. ad leg. ut vim. D. de just. & jure. Bal. in rep. l. 1. c. unde vi.. Wherefore although he be without fault, as one that war­reth faithfully, or thinketh me other than I am, or is beside himself, or affrighted, as to some hath happened, hereby is not taken away the right of self-defense: it sufficeth, that I am not bound to suffer what he offereth, no more than if ano­ther mans beast did threaten me with the danger. Whether also innocent persons, who being interposed hinder my defense or flight, without which death cannot be escaped, may be slain, is question'd. Some, even Divines, there are, that think it lawfull. And surely, if we respect na­ture Cajet. 2. 2. art. 6 7. q. 2. alone, with her the respect of socie­ty is much less, than the care of proper safety. But the law of Charity, especially the Evangelicall, which equals another to our selves, plainly permits it not. That saying of Thomas, if it be rightly 2. 2. q. 64. art. 1. taken, is true: In a true defense a man is not slain on purpose: not that it is not lawfull sometimes, if there be no other [Page 179] meanes of safety, to do that on purpose whence the death of the assailant wil fol­low, but that in this case that death is not chosen as a thing primarily intended, as in judiciall punishment, but as the only thing remaining at that time; when he that is assaulted, even at that time, ought to desire rather to do somewhat whereby the other may be terrified or weakened, than destroyed. Present Hujus distin­ctioni, usum egregum vide apud Agathi­um lib. 4. Apud Thucyd. 8. Phrynichus: Cariturum in­vidia si ipse jam in vitae per ipsos adductus peri­culum, & hoc & aliud quid­vis aggrediatur potius, quam ab hominibus ini­micissimis perdi se sinat. dan­ger is here requir'd, and as it were in a point. I confess, if the assailant draw his sword, and so that it appears he doth it with a mind to kill, it is lawfull to pre­vent him: For in morals, as in naturals, a point is not found without some lati­tude. Nevertheless are they deceived and do deceive, who admit of any fear what­soever, as a just occasion of such preven­ting. For it is well observed by Offic. 1. Cicero, Very many injuries proceed from fear, when he that thinks to hurt another feareth, unless he do it, himself shall re­ceive hurt. Clearchus in Xenophon: Ma­ny have I known, drawn either by calum­ny or supicion, whilst they fear others, and had rather prevent than suffer, to have done much evill to those, that attempted not, nor so much as thovght any such thing against them. Cato in his Oration for the Rhodians: What, saith he, shall we first execute, that which we say they desig­ned? Cicero Citat Quin­til. lib. 5. Insignis est il­la apud Gelli­um sententia: Gladia'ori com­posito ad pug­nandum, pugnae haec proposita sors est, aut oc­cidere si occupa­verit, aut oc­cumbere si ussa, verit. Hominum autem vita non tam inequis ne (que) tam indomitis necessitatib [...] circumscripta est, ut ideirco prior injuriam facere debeas, quam nis [...]seceris, pati passis. Locum hic habe illud Euripidis. again: Who ever made this [Page 180] Statute, or to whom Te si, ut ais, interficere vir voluit tuus, Voluisse sat erat & tibi, ubi tempus solet. may it be granted without extreme hazard of all, that one might lawfully kill him first, of whom he saith we was afraid, left himself should afterward be killed? Pertinent is that of Lib. 1. Lib. 3. Thucydides: The future is yet uncertain: nor ought any one therefore to make a quarrell present and certain. The same Au­thor, where he declareth the hurt of Se­dition among the Grecian Cities, sets down this for one fault: He was praised, that first did, what another was about to commit Livius lib. 3. Cavendo ue me­tuant homines, metuendos ultro se efficiunt, & injuriam à nobis repulsam, tan­quam aut facere aut pati necesse sit, injungimus aliis. As Caesav, who when he seised on the Common. wealth, said he was forc'd to [...] by fear of his adversa­ries. [...] an ex­cellent passage in Appian, ci­vil [...] 3.. To such agrees that saying of Vibius Crispus cited by Quintilian, Quis tibi sic timere permisit? Who permitted thee to be so fearfull? And Li­via in Dio Lib. 55. saith, They escape not in­famy, that by way of prevention do the evill which they fear. Now, if any one offer not present force, but be found to have conspired or lyen in wait, if to pre­pare poyson, if to plot a false accusation, to suborn witnesses, to corrupt judgment, such a one, I say, cannot be justly slain: if either the danger may be otherwise a­voided; or it be not certain enough, it cannot be otherwise avoided. For, for the most part, the delay of time interpo­sed affords many remedies, and many ac­cidents for our rescue; according to the Proverb, Inter os & os­sam. Bann. q. [...]. art. 7. dub. 4. Bald. in l. mul [...]. C. de lib. cius. Less. lib. 2. c. 9. dub. 8. Covarruv. p. 3. s. 1. n. 2. Between the cup and the lip. Yet there are not wanting both Divines and Lawyers that extend their indulgence farther. But the other also, which is the better and safer way, wanteth not the con­sent of Authors.

IV. Of the loss of a member, and the defense of chastity.

WHat shall we say of the danger of mutilation, and loss of some part of the body? Certainly, the loss of a mem­ber, especially one very needfull, being very grievous, and as it were equipara­ble to life; besides, it being hard to know, whether it draw not after it perill of death; if there be no other way to come off, I may suppose the author of such a perill forefeits his own life, and may be justly slain by the defendant. In defense of Chastity, it can scarce be doub­ted but the same is lawfull: when both common estimation, and the divine law too, equals chastity to life Seneca de benef. 1. c. 11. Proxima ab his sunt sine quibus possumus quidem vivere, sed ut mors po [...]ior sit, tanquam liber­tas & pudicitia & mens bona. Paulus senten­tiarum 5. t. 23. Qui latronem caedem sibi inse­rentem, vel a­lium quemlibet stuprum inferen­tem occiderit, puniri non pla­cuit. Alius enim vitam, alius pudorem publi­co facinore de­fendit. Augu­stin. l. 1. de lib. arbit. Lex dat potestatem vel viatori ut latronem, ne ab eo ipse occidatur, occidat; vel cui [...]iam viro aut faeminae, ut violenter sibi stupratorem irruentem, aut post illatum stuprum, si possit, inte [...]i­met. Therefore Paulus the Lawyer said such a defense is right. We have an example in Cicero Vide & Plutarchum Mario. Mars quo (que) deorum judicio absolutus dicitur interfecto eo qui filiae ipsius stuprum infere­bat. Testis Apollodorus biblioth. 3. Adde insignem historiam a­pud Greg. Turonensem lib. 9. and Quintilian, of a Tribune of Marius slaine by a Soldier. Yea, and women have often slain the in vaders of their mo­desty, as histories relate. Chariclea in He­liodorus calls such an act, a just revenge on behalf of injur'd chastity.

V. Defense may lawfully be omitted.

WHat we have said afore, although it be lawfull to kill him that at­tempts to kill, yet he doth more com­mendably who had rather be killed than kill; some do grant, so, that they except a person profitable to many: But, to me it seemeth unsafe, to impose this Law con­trary to Patience upon all, in whose life others are concernd. Wherefore I may conceive it is to be restrained to them whose office 'tis to keep off force from o­thers; such as are the companions in a journey undertaken on those termes, and publick Rulers, to whom that of Lucan may be applyed:

VI. Defense is unlawfull sometimes a­gainst a person very profitable to the Publick.

ON the contrary it may happen, that, because the Invader's life is profitable to many, he cannot be slain without sin: nor that onely by force of Divine Law, whether old or new (of which afore, when we shewed the Kings person to be sacred) but by the very Law of Nature. For the Right of nature, as it signifies a Law, doth not onely respect those things which are dictated by that Justice that is calld Expletrix [...] Aristot [...]li, nimis acclo vocabulo: ita (que) [...] idem seli­ciùs dixil., but con­teineth in it self the acts of other vertues also, as of Temperance, Fortitude, Pru­dence; as being, in certain circumstances, not onely honest, but due. Now, to that which we have spoken Charity obligeth us. Nor doth Vasquez remove me from Lib. 1. controv. illust. 18. this opinion, when he saith, a Prince who assaulteth an innocent person, ceaseth to be a Prince in that very act: than which, scarce any thing could be spoken, either less truly, or more dangerously. For, as dominions, so also Empires are not lost by delinquency, unless the Law ordain it. But, no where is found a Law ordaining this concerning Empires, that they should be lost by an offence against a private man; nor will ever such a Law be found, as I believe; for it would bring [Page 184] in very great confusion of things. As to that foundation which Vasquez lays for this and many other Conclusions, That al Empires regard the utility of those that obey, not of those that governe; grant it were universally true, it would not serve the turne: for the thing doth not pre­sently fail, whose utility in some part faileth. And whereas he adds, that the safety of the Commonwealth is desired by every one for his own sake, and there­fore every one ought to prefer his own safety even before the whole; this doth not sufficiently cohere. Tis true indeed, for our own sake we would have the Commonwealth be safe: but not onely for our own sake; others are: also to be regarded. For, it is a false opinion, and rejected by the sounder Philosophers, to think that Friendship is born of indigence alone Resutat per­nitiosam haue opinionem Se­neca lib. 1. de Clem. c. 1. & lib. 4. c. 16., sith of our own accord and by nature we are carryed to it. Now, that I should prefer the good of a great many before my own proper good, Charity ad­viseth often, sometimes commandeth. Here is pertinent that of Seneca Lib. 1. de Clem. c. 1.: Princes and Kings, and whosoever by any other name are Tutors of the publick State, no wonder They are beloved, even above all private Relations. For, if to men of sound judgment publick things are dearer than private, it followes, that he be dearer al­so, on whom the publick affairs depend. Ambrose De Offic. l. 3. cap. 3.: Every one thinks it better to [Page 185] keep off destruction from his Country, than Lib. 6. de Be­nef. c. 37. danger from himself. The foresaid Sene­ca [...]: Calistratus and Rutilius, the one at † Plutarchus Pelop [...]dae ini­t'o: Primum virtutis opus servare servan­tem caetera. Cassiodorus de Amicitia: Si manus oculo­rum obsequio vibratum in aliud membrum senserit gladium imminen­tem, ipsa suum minimè discrimen attendens, plus alii quam sibi tim [...]s, gladium excipit. Post: Proinde qui morte propria dominos suos à mor­te redimunt, rectè quidem hoc faciunt, si potius salutem animae suae quam liberationem alieni corporis in causa constituunt. Cum enim eis conscientia dictet, quod sidem dominis suis debeant exhibere, videtur etiam consonum rationi; quod suae vitae corporali vitam dominorum de­beant anteferre. Deinde rursus: Dilectione ita (que), & maximè pro salute multorum, potest quis salubriter morti suum corpus exponcre. Athens, the other at Rome, would not be restored to their home, at peril of the Com­monwealth: because it was better these two should endure one private loss, than all fuffer a common evill.

VII. It is not lawfull to kill another for to avoid a box on the car, or the like disgrace.

IF one be in danger to receive a blow on the cheek, or the like, Navar. c. 15. n. 3. Soto lib. 5. q. 1. Sylvest. in ver­bo homicidium 1. qu. 5. some are of opinion, he also hath a right to defend it by the slaughter of his enemy. I dis­sent not, if we respect onely expletory justice. For, although death and a blow are unequall, yet he which prepares to do me an injury, thereby gives me a right, i. e. a certain morall faculty Apollodorus lib. 2. de Lino agens: Ad The­bas cum venis­set, civis (que) The­banus factus es­set, ibi interim ab Hercule per­cuss [...]s cithara. Nam cum Linus feriisset Herculem, tratus Hercules mortem ei intulit, reus (que) à nonnullis factus patratae caedis, le­git in judicio legem Rhadamanthi, qua insens pronuntiatur, si quis no­cuerit ci qui vtm prior intulerit. a­gainst himself in infinitum, in so much as [Page 186] otherwise I cannot keep off that evill from me. Charity also, by it self, seems not to bind us here, in favour of the of­fender. But the Evangelicall Law hath clearly made such a deed unlawfull. For, Christ commands a blow to be received rather than any hurt be done the adver­sary; how much more forbids he him to be slain for to avoid a blow? By which example we are admonished to beware of that saying of Covarruvias, Humane Covar. p. 3. sect. 1. de Homicid. understanding, not ignorant of naturall right, allows not any thing to be permit­ted by naturall reason, which very thing is not also permitted by God, who is Na­ture it self. For, God who is the Author of Nature, so, that he can also work freely above nature, hath a right of pre­scribing us Laws even of those things, which by their own nature are free and indefinite: and much more, that a thing may be due, which is by nature honest, though not due. But it is strange, seeing the will of God appears so manifestly in the Gospel, that there are found Divines, and those Christian Divines, who do not Navar. cap. 15. 4. Henr. de ir­ [...]gul. c. 11. Victor de jure belli n. 5. only think slaughter to be rightly admit­ted, that a blow may be avoided; but al­so after a blow received, if he that gave it fly; for a reparation of honour, as they say. Which to me seemeth very contra­ry to Reason and Religion. For, Honour is an opinion of excellency. But, he that beareth such an injury, shewes himself [Page 187] excellently patient: and therefore hath encrease of honour rather than diminu­tion. Nor is it materiall, if some men of a corrupt judgment traduce this vertue with names made for disgrace: for those perverse judgments neither change the thing, nor the estimation of it. Neither did the antient Christians onely see this, but the Philosophers too, who said, It is a token of a weak spirit not to be able to bear contumely, as we have shewed elsewhere. Hence also it is apparent, how unsound that is, which very many Au­thors Dd. in l. ut vim. D. de just. & jure Sylv. in verbo Bellum, p. 2. n. 4. say, That Defense with slaughter is lawfull, to wit, by divine Law (for I contend not about the right of nature:) although one may fly without perill; be­cause flight forsooth is dishonourable, es­pecially for a Gentleman. But, here is indeed no dishonour; onely a certain false opinion of dishonour, to be despi­sed by all the Followers of vertue and wisedome. Wherein, I rejoice that I have, among the Lawyers, Carolus Molinaeus In addit ad Alex. cons. 119. of the same mind with me. What I have said of a blow and of flight, I desire should be understood of other things by which true honour and existimation is not lessened. And what if one should re­port that of us, which being believed a­mong good men would touch our Name? He also may be kili'd, say some Petr. Navar. l. 2. c. 3. n. 376.: very falsly, and against the Law, even of na­ture too. For that is no fit way to defend our Reputation.

VIII. In defense of Goods, to kill a man is not unlawfull by the Right of nature,

COme we now to the injuries where­by our goods are invaded. If we respect expletory of Justice, I will not de­ny, but for the conservation of our goods, the Invader, if need be, may be slain: For, the inequality between these things and life, is made up by favour to the in­nocent, and by hatred to the injurious. Whence it follows, if we regard onely that right, that a Thief running away with stoln goods, if they cannot other­wise be recover'd, may be overtaken with a Gun, or other weapon. Demosthe [...]es Oratione in Aristocratem. said: It is very hard and unjust, and contrary both to the written Laws, and the common rules amongst men, not to be sufferd to use force against him, who in hostile manner hath taken away my Goods. Nor doth Charity hinder by way of pre­cept, the Law divine and humane set a­side, unless the thing be of very small va­lue, and therefore contemptible: which exception some do rightly adde.

IX. How far the same is permitted by the Law of Moses.

LEt us see what is the meaning of the Hebrew Law, where with agrees also [Page 189] that old Law of Solon, which Demo­sthenes Adversus Ti­mocratem. mentioneth, and the Law of the XII. Tables Addi potest lex wisigottho­rum l. 7. t. 1. c. 15. Et Capitu­lare Caroli M. l. 5. c. 191. Lege Longobarda, qui noctu alienam cortem ingredi­tur, nisi ligan­dum se praebeat, eccidi potest. taken thence, and Plato's decree in the ninth of his Laws. For all those Laws meet in this, that they distinguish a Theif by night from a Theif by day. About the reason of the Law, there is the question. Some Lessius dub. 11. num. 68. think this is it, that by night he cannot be dis­cerned who comes, whether he be a Thief or a Murderer: and therefore may be killed as a Murderer. Others Covarruv. d. loco. con­ceive the difference lyes here, that in the night, because the Theif is unknown, there is less possibility to recover the Goods. To me the Law-giver seems to have properly respected, neither this, nor that; but to have meant thus rather, that no man, for Goods, ought directly to be slain: (which would be done, if, for ex­example, I should with a weapon knock him down as he runs away, that after he is slain I might recover my Goods:) but if my self be brought into danger of life, then it is lawful for me to avert the danger, even with the peril of another mans life. Nor is it against me, that I brought my self into that hazard, whilst I desire to keep or to recover my Goods, or to take the Theif: for herein no blame can be laid on me, who am about a law­ful act, and do no injury to any one, but use my own right. The difference then 'twixt a Theif by day and by night lyes [Page 190] here, that by night there is scarce at possibility of calling witnesses: and the [...] ­fore if the Theif be found slain, more ea­sy credit is given to him, who saith hee was necessitated in defense of his own life to kill the Theif, being armed with some weapon, wherewith he might do hurt. For, that is required in the He­brew Law, speaking of a Theif found Exod. 22. 2. breaking up, as some translate; others perhaps better, Cum perfos­sorio instru­mento. with an instrument to break up, as the word is rendred elswhere by the most learned of the Hebrews. To this interpretation we are led by the Law of the XII. Tables, which fo [...]bids a Theif by day to be slain, this exception added, unless he defend himself with a weapon. Therefore, against a Theif by night it is presumed, that with a weapon he defended himself. And, by a weapon is understood a sword, a club, a stone, as L. si pignore Sect. surem. D. de furtis. Caius noteth upon this very Law. B [...]t Ulpian hath declared, that what is said of the Theif by night, If one kil him he shal go unpunished, is to be conceived to have place, if he could not spare his life without peril of his own, to wit, in saving of his goods. There is then, as I have said, a presumption on his side who hath slain a L. furtum. D. ad legem Corn. de sicar. theif by night: but if haply witnesses were present, by whom it is evident, the slayer of the theif was not brought into danger of his life, then will that presumption cease, and so the slayer will be guilty of [Page 191] Homicide. Add, that as well by day as by night the Law of the XII. Tables re­quir'd, that he that found the theif should testify so much by an out-cry (as we learn L. Itaque. D. ad legem Aqui­liam. out of Caius) to the end, if it might be, the officers or neighbours might run thi­ther to bring help, and to bear witness. Now because such a concourse is more easily made by day than by night, (as Ulpian notes upon the forecited place of Demosthenes) therefore is more easy cre­dit given to him, that affirms, he was in danger in the night time. In like manner, the Hebrew Law allowes a maid credit concerning a rape in the field Philo ex­plains it well: that the place is set for more fre­quent example sake, not that thereby always the controversy may be determi­ned. For it may come to pass, as he discourses in his book of spe­cial Laws, that a maid may be ravished in a Ci­ty, her mouth being stopt, and in the field one may consent to the act., and not in the town, because here she might and ought to have cryed out, and called aid. Moreover, although in other respects there were no difference, yet this is con­siderable, that the things that happen in the night are more obscure, and cannot be so well known what and how great they are; and therefore are more terrible. The Law therefore, both Hebrew and Roman, gave in precept to the people, that which Charity perswades, that they kill no man for this reason onely because he stealeth goods, but in case he that de­sires to save them, comes himself into danger. Moses Maimonides hath noted, that the killing of another is not permit­ted to any man on other terms, than to preserve that which is irreparable, as life and Chastity.

X. Whether, and how far it is per­mitted by the Evange­licall Law.

ANd what shall we say now of the Evangelicall Law: that the same is permitted by it, which is permitted by the Law of Moses; or that, as in other things it is more perfect than the Law of Moses, so here also it requireth of us more? I doubt not, but it requireth more. For, if Christ commandeth to lose a coat or cloak, and Paul would have us suffer damage rather than go to law, which is a contention without bloud: how much more would he, that even things of grea­ter moment be lost, rather than we should kill a man, the image of God, and of the same flesh and bloud with us? Wher­fore if our things may be saved, so that there seem not to be any danger of ma­king slaughter, well; otherwise, we must suffer losse, unless haply it be such a thing, upon which our life and of our family depends, and which cannot be recoverd in judgment, haply because the Theif is unknown, and there is some hope to car­ry the matter without slaughter. And al­though almost all, as well Lawyers as Divines, do now teach, that a man may Soto d. avt. 8. Less. dub. 11. 4. 74. be rightly slain by us, in defense of our goods, even beyond those bounds, where­in Sylv. in verbo Bellum, 2. n. 3. the Law of Moses and the Roman [Page 193] permit; as, if a thief having taken the thing fly; yet do not we doubt, but that which we have set down, was the judgment of the antient Christians: nor did Austin doubt, whose words are these, How are Lib. 1. de lib. arb. they free from sin before God, who, for these things which are contemptible, are pollu­ted with human blood? No wonder if in this matter, as in many other, Discipline became looser Hieronymus in vita Malchi: Postquam Eccle­sia coepit habera Christianos Ma­gistratus facta est quidem opi­bus major, sed virtutibus mi­not. Vide c. suscepimus, de homicidio voluntario, &c. de his, distinct. 1. Pan. c. 2. de Homicid, Less. d. loco. with the time, and by degrees the Interpretation of the Evan­gelical Law began to be accommodated to the manners of the Age. Of old, the form of the primitive Institution was wont to be retained among the Clergy; at length, to these also censure was remitted upon the same ground.

XI. Whether the Civil Law permit­ting one to kill another in his own defense, give a right, or only impunity.

AQuestion is here propos'd by some, Whether the Law, at least the Ci­vil, as having right of life and death, in what case it permitteth a thief to be killed by a private person, doth also exempt the person from all fault. I conceive that is not to be granted: For first, the Law hath not right of death over all the Citi­zens [Page 194] upon every transgression, but upon a transgression so grievous that it deferr [...] death. And it is a very probable opinio [...] of Scotus, that 'tis not just to condemn any one to death, unless it be for those transgressions, which were punished wi [...] death Contra leges quae venantes rusticos morte puniunt, vide Gregorium Turonensem libro 10. c. 10. Joan. Sarisbur. policratici 1. cap. 4. Pet. Ble­sensem epist. 129. by the Law given by Moses; th [...]s onely added; or which are equal to those in a right estimation. And indeed, know­ledge of divine will, which alone quieti the mind, seems not possible to be had elswhere in this business, but out of that law; which surely appointeth not pain of death for a thief. Moreover also, the Law neither ought, nor is wont to give a right, privately to kill, even those that have deserved death, except in crimes very hainous: otherwise, in vain were the Authority of Courts of judgment or­dained. Wherefore, if at any time the law saith, a thief may be killd without danger of punishment, it is to be sup­posed to take away the penalty, not to grant a right.

XII. When a single combat may be lawfull.

IT appears by what we have said, that two ways it may come to pass, that a single combat may be undertaken by pri­vate persons without sin. First, if the In­vader grant the other license to fight, and and will kill him unless he will fight: Se­condly, [Page 195] if a King or Magistrat oppose two, that have both deserved death, one a­gainst the other: in which case, it will be lawful for them to lay hold on some hope of life; but he that appoints the Duel will seem to have not so well done his duty, sith it were better, if the punish­ment of one seem to be sufficient, to choose by Lot the party that should dy.

XIII. Of defense in publick War.

WHat hath been said by us hither­to concerning the right of defen­ding ones self and his goods, perte [...]eth most to privat War; yet so, that it may be applyed to publick Ammianus lib. 23. Cùm i [...]ruentibus ar­mis externis lex una sit & perpe­petua salutem omni ratione de­fendere, nihil [...]enitente vi mo­ris. Alexauder Imp. oratione ad milites apud Herodian. 5. Injurias qui pri­or insert nihil habet probabilis coloris: at qui libi molestos ar­cet ex bona con­scien [...]ia sumit fiduciam, bo­na (que) ei syes adest, inae quod injuriam non inserat, sed auserat., regard being had to the diversity. For, in private war the right is as it were momentaneous, and ceaseth, so soon as the matter admits of an access unto the Judge: but publick, because it ariseth not, but where Courts of Justice either are not, or not exerci­sed, hath a continued tract, and is per­petually cherished by addition of new damages and injuries. Farther, in private war mere defence, for the most part, is considered: but publick powers, toge­ther with defense, have also a right of re­venging. Whence it is, that they may lawfully prevent force, that is not pre­sent, but seems impending afar off; not directly, (that we have shewed above to be injust,) but indirectly, by revenging a [Page 196] wrong begun already, but not consum­mate: Of which elswhere.

XIV. It is not lawful to take arms to diminish a Neighbor's power.

THat is in no wise to be allowed, which some have deliver'd, that by the Law of Nations, arms may be right­ly taken to abate a growing power, which being encreased might be able to do hurt. I confess, in consultation about war this is wont also to come in, not under the respect of just, but of profitable: that if the war be just upon some other ground, upon this it may be judged prudent­ly undertaken. Nor do the Authors cited Bald. lib. 3. de rer. divis. here say any more. But, that a possibili­ty of suffering force should give a right of offring force, this is far from all equity. So is the life of man, that full security is never in our hand. Against uncertain fears, we must guard our selves by me­ditation of divine providence, and by harmless caution, not by doing violence to our neighbours.

XV. Defensive war also is unjust on his part, who gave just cause of War.

AS little are we pleasd with this, Alb. Gent. l. 1. c. 13. which they teach, that also their de­fense Cost. lib. 5. de Justit. is just, who have deserved the war; because forsooth, few are content to re­turn [Page 197] only so much revenge, as they have received injury. For, that fear of an un­certain thing cannot give a right to use force: whence, neither hath a person ac­cused of a crime, any right to resist by force the publick officers willing to apprehend him, for fear lest he may be punisht more than he deserves. But, he that hath offen­ded another, ought first to offer the offen­ded party satisfaction, according to the arbitration of an upright man: and then afterward his arms will be lawfull. So Ezechias, when he had not kept the 2 Reg. 18. 7. &c. 19. league, which his Ancestors had made with the King of Assyria, being set upon by a war, confesseth the fault, and sub­mits himself to a mulct at the Kings plea­sure. Having done that, and being after that again provoked by war, encouraged by a good conscience he withstood the enemies force, and his cause was sup­ported by the favour of God. Pontius Samnis, after restitution made to the Ro­mans, and the Author of the breach yeel­ded up; we have, saith he, expiated our fault, and pacified the wrath of heaven, that was against us for our violation of the league. I know full well, what Gods soever were pleasd we should be subdued to a necessity of restitution, the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach. A little after: Quid ultra tibi Romane, quid foederi, quid Diis arbi­tris foederis de­beo? Quem tibi tuarum irarum, quem meoru [...] suppliciorum judicem feram? Neminem ne (que) populum, ne (que) privatum sugio. What more do I owe to thee, O Roman! What to the league, what to [Page 198] the Gods the Judges of the league? Whom shall I bring unto thee to be judge of thy anger, and of my punishment? I refuse to people, nor private man. So, when the Thebans had offerd all right to the Lace­demonians, and they required more, the good cause passed over from these to them, saith Leuctricâ primâ. Aristides De Principe Chalepi, qui pacem & resi­dua tributo­rum obtulerat Romano Ar­gyropolo Im­peratori, vide Zonaram: si­mile de Cruciferis in Cromero lib. 17. De Helvetiis qui Caroh Burgundo, de curru ovium pellibus onusto, adempto (que) mercato­ribus, satisfactionem obtulerant, vide Philippum Comminaeum, lib. 7..

XVI. The rise and progress of propriety. Cap. 2.

THere follows among the Causes of war, Injury done, and first against that which is ours. A thing is ours either by a common, or by a proper right. For the better understanding whereof we must know the Rise and beginning of propriety, which the Lawyers call domi­nion. God bestowed on mankind in ge­neral Gen. 1. 29. 30. & 9. 2. a right over the things of this infe­riour nature presently after the creation, and again upon the reparation of the world after the floud. All things, as Justin Lib. 43. speaks, were undivided & common Ejus vestigi­um mansit in Saturnalibus. to all, as if all had one patrimony. Hence it was, that presently every man might take un­to his uses what he pleased, and spend what might be spent. Which use of the universal right was then instead of pro­priety. For, what any one had so taken, [Page 199] another could not, without injury, take away from him. This may be understood by that similitude which is in Cicero, A theater is common Seneca de Benef. 7. 12. Equestria om­nium Equitum Romanorum sunt: in illis ta­men locus meus sit proprius, quem occupavi., yet the place posses­sed De finibus, 3. by any one, may be rightly call'd his own. Nor was it impossible for that state to have continued, if either men had per­sisted in a certain great simplicity, or had liv'd together in a certain mutual excellent charity. One of these, to wit, Commu­nion by reason of an exceeding simplici­ty Horatius: Campestres melius Scythae, Quorum plaustra vagos rite trahunt domos, Vivunt, & rigidi Getae; Immetata quibus jugera liberas Fruges & Cererem ferunt; Nec cultur a placet longior annua, Defunctum (que) laboribus Aequali recreat sorte vicarius., may be ob­served in some peo­ple of America; who, through many Ages, without any incommodity, have persisted in that cu­stome: The other, to wit, communion of Charity, the Es­sens Et ab his or­ti Pythagori­stae. Vide Por­ph [...]yium, Dio­genem Laerti­um, Gellium, 1. 9. practised of old, and then the Chri­stians, who were first at Hierusalem, and now also not a few that lead an ascetick life. The simplicity, wherein the first pa­rents Adam typus humani gene­ris. Vide Ori­ginem contra Celsum: ne (que) nihil huc pertinet quod Tertullia­nus dixit libro de anima. Naturale enim rationale credendum est, quod anim [...] à primordio sit ingenitum, à rationali videlicet auctore. Quid enim non rationale quod Deus jussae quo (que) ediderit, nedum id quod proprie afflatu suo emiserit? Irrationale autem posterius intellige idum est, ut quod acciderit ex serpentis instinctu, ipsum illud transgressionis admissum, at (que) exinde inoleverit, & coadoleverit in anima ad instar jam naturalitatis, quia statim in primordio naturae accidit. of mandkind were created, was demonstrated by their nakedness. There [Page 200] was in them rather an ignorance of vice, than the knowledge of vertue, as Trogus Just. l. 2. saith of the Scythians. The most antient of mortals, saith Tacitus, lived without a­ny evill lust Seneca de iis­dem epist. 90. Ignorantia re­rum innocentes erant. Deinde locutus de ju­stitia, ptuden­tia, temperan­tia, fort tudi­ne, addit: Om­nibus his virtu­tibus habebat similia quaedam rudis vita. Jo­sephus: [...]., without dishonesty and wit­kedness, and so without punishment and coercion. And in Macrobius 2. Ad Somn. Scip. Sap. 3. 24., First, there was amongst men simplicity, igno­rant of evil, and as yet void of craft. This simplicity seemes to be called [...] Sic & Paulus Eph. 6. 24. qui & [...] dixit, T [...]. 2. 17. by the Hebrew wise man, by the Apostle Paul [...], which he opposeth [...] to craf­tiness. Their only busines was the worship of God, whereof the Symbole was the tree of life Sanctitas su­perior, Rabbi­nis. [...], Arethae ad A­poc. De paradiso vide Eccl. 40. 17. Et de fluminibus paradisi eundem librum 24. 35. & seq., as the antient Hebrews do ex­pound, and the Apocalyps assenteth Prov. 3. 18. Philo de mundi creat Apocalyps. 22. 2.. And they lived easily of those things which the earth of her own accord brought forth without labour Vide egregium hac de re locum lib. 2. Var­ronis de Re rustica, ex D [...]caearcho: & confer quae ex eodem Di­caearcho habet Porphyrius de non esu animal um libro 4.. But in this simple and innocent way of life Men persisted not, but applyed their minds to various arts, whereof the Symbole was the tree of the knowledge of good and evill Jose­phu [...]: Quae acbor crat sol [...]rtiae & intelligentiae. Telemachus apud Ho­merum.—Omnia novt Quae bona, quae mala sunt, nec sum jam p [...]vus ut ante Zeno [...] Cittiensi prudentia, scientia bonorum & malorunt & medi rum. Est id apud Diogenem Laertium. Plutarchus de Communibus notitiis: Quid nocebit, si ablatis malis nulla erit pru­dentia, pro eo autem aliam habeamus virtutem, quae non bonorum ae malorum, sed solorum bonorum sit scientiâ?, that is, of those things which may be used [Page 201] both well and ill [...] voca [...], Philo. In regard of this Solomon Ecclel. 8. 30. saith, God created man right, that is, simple, but they have found out many inventions [...], ut dicto loco Philo lo­quitur. Dion. Prusaeensis, in his 6. Oration; To the posterity of the first men, their craf [...]iness and various Late hoc ex­plicat Seneca epist. 90. quem lege: & Dicae­a [...]chum apud dictos jam scriptores. inven­tions were not very conducible: for they used their wit, not so much for valour and justice, as for pleasure, The most antient Arts, Agriculture and Pasture, appeared in the first Brothers; not without some di­stribution of estates; From the diversity of their courses arose emulation, and then slaughter: and at length, when the good were infected by the conversation of the bad, a gigantick Seneca natu­ral um 3. in fine: Extinctis pariter feris in quarum homines ingenia t [...]ansic­rant. kind of life, that is, violent, such as theirs whom the Greeks call [...]. The world being washed by the floud, in stead of that fierce life, suc­ceeded the desire of pleasure Seneca dicto loco: Illis quo (que) innocentia non d [...]bit, nisi dum novi sunt.; whereun­to wine was subservient; and thence arose unlawfull loves Praemium (que) summum ebrie­tatis libido por­tentosa ac ju­cundum nefas. Seneca ib dem. Gen. 10. 11.. But concord was chief­ly broken by that more generous vice, Ambition; whose sign was the Tower of Babel: after which, men parted asunder, and severally possessed severall parts of the earth. Yet afterward also, there re­mained among Neighbours a Communi­on, not of cattell, but of pastures. Be­cause, in the small number of men, so great was the latitude of the Land, that without any incommodity it might suf­fice to the uses of many Ne signare qui­dem aut par [...]i limite campum, Fas erat. Virg. Georg. 1.: untill, the number, as of men, so of cattell, being [Page 202] encreased, Lands every where began to be divided, not among nations as before Gen. 13. & 21. but among families too. But Wells, De pureis ad Oasim inter multos com­munibus, vide Olympiodo­rum apud Pho­tium. a thing in a thirsty Country very necessary, & not sufficing many, every one made his own by seisure. These are the things, we are taught out of sacred history, agreeing well with what the Philosophers and Poets have said of the first state of things common, and the distribution of things which followed: whose testimonies are produced by us in another Marilibero, c. 15. book. Hence we learn, what was the cause, for which men departed from the primitive commu­nion of things, first of movables, and then of immovables also: to wit, because when, not content to feed upon that which grew of it self, to dwell in caves, to go naked, or clad with rindes of trees, or skins of beasts Qualem vi­tam Scritefin­norum nobis accurate de­scribit Proco­pius Gotthico­rum 2. Adde Plinium 12. 1. Vitruvium 2. 1., they had chosen a more exqui­site kind of life, there was need of indu­stry, which every one should use in every matter. And the reason, why fruits were not brought together for common use, was, because of the distance of places, whereby men were separated; and more­over, the defect of Justice and love; whereby it came to pass, that neither in labour, nor in spending of the fruits, was observed due equality. Withall we learn, how things went into propriety: not on­ly by act of the mind (for they could not know the thoughts of one another, what every one would have to be his own, that [Page 203] they might abstain from it, and many might desire the same thing:) but by a certain covenant, either express, as by division; or tacit, as by occupation Vide quae hac de re ex Ge­mara & Alco­rano nobispro­tulit honos Bri­tanniae Selde­nus in Thalas­socratico.. For so soon as communion did not please them, and division was not made, it ought to be supposed an agreement a­mongst all, that every one should have proper to himself, what he seised on Cicero: Ex quo, quia suum cujus (que) fit eo­rum quae natu­ra suerunt com­munia, quod cui (que) obtigit id quis (que) teneat. Quod similitu­tudine illustrat à Chrysippo reperta de sta­d [...]o, ub [...] cur­rendo l [...]cet vincere adver­sarium, non cum detruden­do. Scholiastes ad Artem poet. Horatii: Quemadmodum domus aut ager sine domino communis est, occupatus vero jane proprius fit. Varro in Age modo: Terra culturae causa at­tributa olim particulatim, ut Etruria Thuscis, Samnium Sabellis.. It is granted, saith Cicero, that every one may prefer himself before another, in get­ting things usefull for his life, nature be­ing not repugnant hereunto Cicero Offic. 3. Solon. Divitias ha [...]uisse velim, sed non bene par­tas non cupiam. Cicero Offic. 1. Nec vero rei amplifieatio nemini nocens vituperanda est, sed sugienda semper injuria.. To which is to be added that of Quintilian Declam. 13.: On this condition, that what is come into a mans possession is his own, certainly what­soever is possessed by right, is taken away by wrong. And the antients, when they called Ceres Macrob. Saturn. lib. 3. c. 12. Legiferam, and her rites Thesmophoria, signified this, that by the division of lands came up the original of a certain new right Postquam ex agrorum discretione nata sunt jura. Ita Servius ad illud 4. Aen. Legiserae Cereri..

XVII. Some things cannot be made [...] per, as the Sea, taken for the whole or principal parts: and why?

UPon these premises we say, that the Sea taken either in regard of the whole, or in regard of the principal parts, cannot go into proper right. Which, because some do grant it, of pri­vate persons, not of dations, we prove, first by moral reason. For, the cause, for which men departed from communion, here ceaseth, the Sea being so great, that it can suffice all nations for every use, for watering, for fishing, for sailing. The same were to be spoken of the aire, if any use might be made thereof, to which the use of the earth were not necessary, as it is to Hawking Et ad habi­tandi jus. Tam soli quam coeli mensura faci­enda est ait Pomponius, l. si opus. D. quod vi [...]ur clam.: whence it receiveth law from him, who hath command over the Land. In the same manner we judge of the [...], where is nothing that can ad­mit of culture, and the onely use of fetch­ing sand thence can never be exhausted. There is also a natural reason, which for­bids the Sea considered as we have said, to become proper: because occupation pro­ceeds not, but in a thing Ideo iugera [...]uae possesso­rem non ha­bent immetata dixit Horatius. terminated: and liquid things, because they have no [...], Inquit Aristo­teles, De Ge­ner. l. 2. c. 2. bounds of their own, cannot be occu­pied, but as they are containd in some o­ther thing: as lakes and ponds, and rivers, because they are contain'd with banks. [Page 205] Now the Sea is not contained by the earth, being equal to the earth or greater Ita d [...] Ocea­no sensit Jar­chas apud Phi­lostratum, 3. 11.; whence the antients say, the earth is con­tained by the Sea [...], Apollonii ver­ba apud Phi­lostrat. Sulpi­tius Apollina­ris apud Gelt. Quid potest dici circa Oceanum esse, cum undi (que) Oceanus cir­cumscribat om­nes terras, & ambiat? Marcus Acilius apud Livium: Oceano, in­quit, qui orbem terrarum amplexu finit. In Senecae Suasoriis dici­tur Oceanus totius orbis vinculum terrarum (que) custodia: Lucano, Unda mundum coercens.. Nor may we feign a division: for when first the earth was di­vided, the Sea, most part, was unknown: and so no way can be imagined for nati­ons so far distant to agree upon the divi­sion. Wherefore the things which were common to all, and in the first division were not divided, they do not now pass into proper right by division, but by oc­cupation; nor are they divided, unless after they have begun to be proper.

XVIII. Of things that may be made proper.

LEt us now come to things which may be made proper, but are not yet made so. Such are many incult places Vide Bem­bum, Historiae 6., Ilands in the Sea Ut Echinades, quas occupando suas secit Alci­naeon. Thucyd. lib. 2. in fine., wild beasts, fishes, birds. But two things are to be noted, First, there is a twofold occupation, one by the whole, another by the parts: the former usually by the people, or by their Ruler: the other afterward by several persons; yet rather by assignation, than free occupati­tion. But if any thing, seised on in gene­ral, be not divided among several Lords, [Page 206] it is not therefore to be esteemed voi [...] For it remains in the dominion of the f [...] occupator, to wit, the people or K [...] Such are wont to be rivers, lakes, pond [...] woods, wild mountains. Next, concern­ning Covarr. c. pec­catun [...]. par. 2. Sect. 8. wild beasts, fishes, birds, it is to be noted, that he who hath command over the lands and waters, may by his Law hinder others from catching and acqui­ring the beasts, fishes, and birds: and by that Law are foreiners also bound. The Dd. in l. cunctos populos. l. de sum. Trin. Covar. d. loco. Reason is, because to the goverment of a people it is morally necessary, that they who mingle with them but for a ti [...]e (which is done by entring the territory) render themselves conformable to the In­stitution of that people. Nor is that a­gainst us, that we read often in the Ro­man Law, saying, by the Law of nature, or nations, it is free to hunt and take such creatures. For, this is true, so long as no Civil Law intercedes; (as the Ro­man Law left many things in that primi­tive state, concerning which things other nations made other constitutions) But when the Civil Law ordaineth otherwise, the very Law of nature dictates, that it ought to be observed. For, the Civil Law, though it can command nothing which the Law of nature forbids, nor forbid what it commands, nevertheless may it circum­scribe natural liberty, and prohibit what was naturally lawfull, and also by its force antevert that very dominion, which natu­rally is to be acquired.

XIX. Over things made proper, men have a right to use them, in time of necessity: and whence it comes.

NOw let us see, what common right is competent to men over those things, which are made proper unto some. Which question, perhaps some may wonder at, se­ing propriety may seem to have swallow­ed up all that right, which arose from the common state of things. But it is not so. For, it must be considered, what was the mind of them, who first introduced singular dominions: which is to be be­lieved such, as hath receded as little as might be from natural equity. For, if al­so written Laws are to be drawn, as far as they may, into that sense; much more are Customs, that are not bound up in wri­ting. First then, it follows hence, that, L. 2. Sect. cum in eadem. D. ad l. Rhodiam. l. quo [...]aufragium. S. quod ait. D. de incend. L. Quemadmodū. Sect. Item. D. ad L. Aquiliam. Thom. 2. 2. 66. 7. Covarr. c. peccat. 2. sect. 1. Soto l. 5. q. 3. art, 4. in extreme necessity, that old right of u­sing things revives, as if the things had re­mained common: because, in all human constitutions, and therefore in the Law of Dominion too, that extreme necessity seems excepted. Hence it is, that in na­vigation, if at any time victuals faile, what every one hath ought to be brought forth for the common use. And so, in a fire, I may pull down my neighbours house to save mine: and cut in pieces the tackling or nets upon which my ship is [Page 208] driven, if it cannot be disintangled Talia non procedunt nisi ex magna & satis necessaria causa. Ulp. l. Si alius. D. quod vi aut clam. Ubi sequitur exem­plum illud de aedibus inter­cisis a [...]cendi incendii causa. by other means. All which are not introdu­ced by the Civil Law, but expounded. For among Divines also, it is a received opi­nion, in such necessity, if one take from another what is necessary to save his life, he doth not commit theft. Of which de termination this is not the cause, that some alleage, that the owners of the thing are bound by the rule of cha­rity to give it to the necessitous; but, that all things seem divided amongst the owners, with a certain benign re­ception of the primitive right. For, if the first dividers had been asked their o­pinion thereof, they would have return'd our answer. Necessity, saith Seneca the father, the defense of human imbecillity, breaks every Law Quicquid co­egit defendit. l. 4. controv. 27. Exemplis idem Seneca illustrat in ex­cerptis contro­versiae 4. Neces­sitas est, quae navigia jactu exonerat: neces­sitas est, quae ruinis intendia opprimit: necessitas est lex temporis. Cicero Philippi­ca 11. Cassius in sy [...]iam profectus est, alienam provinciam, si homi [...]es legibus scriptis uterentur: his vero oppr [...]ssis, suam lege naturae. Apud Curtium est: In communi calamitate, suam quem (que) habere for [...]. Theodorus Priscianus vetus medicus: Expedit praegnantibus in vitae discrimine constitutis sub unius partis saepe [...]actura salutem merc [...] certissimans; sicut arboribus crescentium ramorum accommodatur salu­taris abscissio, & naves pressae onere, cum gravi tempestate jactantur, solum habent ex damno remedium. Prima illa verba ad [...] pertinent, cujus instrumenti descriptio apud Galenum & Cel­sum: ac proinde eadem vix restituenda apud Tertul. de anima., understand human, or made after the manner of human.

XX. Three Cautions to be applyed to this case of necessity.

BUt Cautions are to be used, that this licence be not extravagant. First, Less. lib. 2. cap. 12. dub. 12. num. 70. By all means tryall must be made first, whether the necessity may be evaded some other way, as by an address unto the Ma­gistrat, or by endeavouring to obtain the use of the thing from the Owner by in­treaty. Plato permits one to fetch water out of his neighbours Well, so that he hath digged in his own ground, as far as the chalk, to find water: if he hath dig­ged forty cubits deep, saith Solon: where Plutarch adds Subveniendum necessitati non instruendam pi­gritiam., He thought necessity was was to be succoured, idleness not to be maintained. Xenophon Expedit. Cy­ri, 5. in his answer to the Sin [...]penses: Where we are not permit­ted to buy, be it among Barbarians or Graecians, there do we take what we want, not out of wantonness, but necessity. Our second Caution is, This is not to be al­lowed, if the Possessor be pressed with an equall necessity. For in a like case the Possidentis melior est con­ditio. L. 5. c. 16. Possessor hath the advantage. He is not a fool, saith Lactantius, who thrusteth not a shipwrackt man from his plank, nor a wounded man from his horse, to save him­self: because he hath kept himself from do­ing hurt, which is a sin; and to avoid this sin is wisdom. Cicero had said: Will not Offic. 3. then a wise man, if himself be almost fa­misht, [Page 210] force another mans food from him, being a man whose life is worth nothing No sure. For my life is not more deer [...] me, than that disposition of mind, to vis­late no man that I may profit my self. We read in Curtius Metior est cau­sa [...] non eradentis, quam po [...]centis [...]ie­num. Q. Cur­tius. Adrian. quod. lib. 1. art. 2. c. 3. Covarr. d. loco.: Better is the cause of him that delivers not up his own, than of him that requires what belongeth to ano­ther. The third is this: Where it may be, restitution is to be made. Some think o­therwise upon this ground, that he who hath used his own right is not bound to restitution. But it is more true, that the right here was not full, but restrained with a condition of restoring, when the necessity should be over. For such a right sufficeth to keep up natural equity against the rigour of dominion.

XXI. An example of this right in Wars.

HEnce we may collect, how it may be lawful for him, that wageth a pious war, to seise upon a place situate in a peaceable Country; to wit, if there be, not an imaginary, but a certain danger, lest the enemy invade that place, and thence do irreparable damage: moreo­ver, if nothing be taken, but what is necessary for caution, i. e. the bare custo­dy of the place, the jurisdiction and pro­fits being left to the Lord thereof: Lastly, if it be with a mind to restore the custody [Page 211] so soon as the necessity is over. Enna, was reteined either by an evil, or by a necessa­ry enterprize, saith Livy: because it is Lib. 24. evil here, whatsoever is different, even in the least degree, from necessary. The Grecians that were with Xenophon, ha­ving De exped. Cyri. 5. extreme need of ships, by the advice of Xenophon himself, took up such as pas­sed by; yet so, that they kept the lading safe for the Merchants, and to the Mari­ners gave both food and wages.

XXII. Another right of men over things proper, for their benefit, without damage to the owner.

BEsides that right of necessity, there is another relique of old communion, namely, the right of harmeless utility. For why should not one, saith Cicero, when De Offic. 1. without his own detriment he may, com­municate to another, in those things, which are profitable to the Receiver, and to the Giver not chargeable? Therefore Seneca saith, it cannot be call'd a benefit, De benef. 4. to give leave to another to light his fire by yours. We read in Plutarch, It is not lawful to spoil our victuals, when we Sympos. 7. have more than enough; nor to stop or hide a fountain, when we have drank our fill; nor to abolish the way-marks either by Sea or Land, which have been useful for us. So a River, as a River, is [Page 212] proper to that people, or that Prince, within whose dominion it runs, and they may make a mill on it, and take what L. Quaedam. D. de rerum di­vis. fish the River yields: But the same Ri­ver, as a running water, remained com­mon, as to drinking or drawing of it. Ovid Qnis v [...]tet apposito lumen de lumine sumi; At (que) cavum vastas in mare servet aquas? Ovidius: apud quem & Lycios Latona sic alloquitur, Quid prohibetis aquas? Usus communis aquarum est? therefore calls the use of water common, and Virgil saith, it is open to all.

XXIII. The right of passages expla­ned, by Land and Water.

SO also Lands, and rivers, and if any part of the Sea be come into the pro­priety of any people, it ought to be open to those that have need of passage for just causes: namely, because being expelld out of their own Country they seek void pla­ces, or because they desire commerce with a remote Nation, or also because they contend for their own in a just war. The Bald. 3. cons. 293. reason here is the same which hath been set down above, because dominion might be introduced, with a reception of such use Serv. ad 7. Aen. Littusq: roga­mus innocuum. Cujus vindica­tio, ait, nulli possit nocere. Numb. 20. & 21., which profits these, hurts not those: and therefore the Authors of Do­minion are to be supposed willing rather to have it so. We have an eminent ex­ample in the history of Moses: who, when he had to pass thorow the countryes of [Page 213] other Princes, made this offer, first to the Edomite, then to the Amorite; that he would go in the High-way, and not di­vert to private possessions: if he had need of any thing of theirs, he would pay them the just price. Which conditions when they were refused, he waged a just Justa bella ge­rebantur à filils Israel contra A­morraeos, ait Augustinus. Sic Amyntorem Orchomeni regem obnega­tum transitum interfecit Her­cules, notante id Apollodo­ro. Adde le­gem Longo­bardicam lib. 2. tit. 54. c. 2. war, upon that score, against the Amo­rite. For harmless passage was denyed, saith Lib. q. 4. su­per Num. ad ca. 20. Austin, which by the most equal right of humane society should be open. The Graecians that were with Clearchus: We will go home, if no man trouble us: if any one do us wrong, by the Gods help we will endeavour to keep it off. Not much unlike is that saying of Agesilaus, when returning out of Asia he was come to Troas, he asked, whether they would have him pass as a friend, or as an ene­my: And Lysander asked the Boeotions, whether they would have him pass with spears charged, or inclined. The Bata­vians Plut. Apoph. & in vita Agesilai. Plutarch in Ly­sand. in Hist. 4. Plutarch. in Cim. Tacitus declare to the Bonnenses, If none opposed them, they would march quietly; if they met with force, they would cut their way with the sword. Ci­mon going to aide the Lacedemonians, led his army through the territory of Corinth: being reprehended by the Corinthians for not asking leave of the City; for even he that knocks at anothers door, enters not without the permission of the Masters; answerd, But you did not knock at the doors of the Cleonaei and Megarenses, but [Page 214] broke them open, thinking that all things ought to give place to the stronger. The truth is in the middle sentence, that pas­sage is first to be requested Veneti & Ger­manis & Gal­lis de Marano certantibus iter praebuere. Paru­ta II. Iidem Germanis con­querentibus de transuu hostibus dato, ostendunt id nisi armis im­pediri non [...]: quibus uti non mos sibi, nisi in hostes mani­fes [...]s. eod. lib. Sic & poutifex se excusat, lib. 12., and, if it be denyed, it may be forced. So Agesi­laus Plutarch. in vita ejus. returning out of Asia, when he had required passage of the Macedonia [...] King, and he had answered, that he would consult: Let him consult, saith he, We i [...] the mean time will march on. Nor may any rightly except, and say, he fears the multitude of those that pass. For my right is not taken away by thy fear: and so much the less, because there are ways of security; as, if the army pass in divided companies; if E [...]emplum in exce [...]o lega tianum 12. a­pud Bembum 7. Hist. Ital. Vide & notabi­lia pacta de transitu inter Fredericum Barba [...]ossam & Isacium Ange­lum apud Ni­cetam l. 2. de vita ejusdem Isacii aliquot locis. In s [...]pe rio Germanic transitum postulans de damno resorciendo cavet. Vide & Cran [...]ziu [...] Saxon c. 10. & Mendosam in Belgicis. Caesar Helve­tiis iter [...]r pr [...]vinciam noluit concedere, quod homine iniquo animo exi­stimabat non temperaturos ah injuriis & maleficio. De bello Gallko lib, 1. unarmed, (which they of Agrippina said to the Germans, and Strabo notes that custome antiently ob­served in the Countrey of the Eleans:) if, at the charge of him that passeth, he that grants the pass, provide himself sufficient Guards; if Hostages Exemplum hab [...]s Procopii Persicorum. 2. be given, which Seleucus demanded of Demetrius, that he might suffer him to quarter within the bounds of his Empire. So also, fear of him, against whom, he that passeth makes a just war, is no sufficient reason to deny passage. Nor is it more to be admitted, if you say, he may passsome way els: for [Page 215] any one may say as much, and by that means the right of passing world come to nothing: but it is enough, if, without de­ceit, passage be demanded, where it is next and most commodious. Indeed, if he makes unjust war, who would pass; if he lead my enemies Hoc dicebant Franci, qui in Venetia erant, Narseti Longo­bardos secum ducenti, Got­thicorum 4. Alia negati itineris exempla habes apud Bembum lib. 7. Italicorum. apud Parutam. l. hist. Venet. 5. & 6. with him, I may de­ny him passage: and more than so, I may meet him on his own ground and law­fully hinder his expedition.

XXIV. Of passage for Merchandise, and of Impost.

NOr is passage onely due to persons, but to Merchandise also; for no man hath right to obstruct the way of Com­merce to any Nation with any other that is remote; because the permission of Trade is for the interest of human society, and is not discommodious to any one. For, al­though some hoped gain, but not due, departs from any, that is not to be re­puted as a loss. Philo In legat. ad Caium. speaks to our purpose: On the Sea, all Ships of burden safely pass, according to that right of Commerce Apud F [...]orum est. l. 3. Subla­tis Comm [...] cus, ruoto foedere ge­neris hamani. Servius ad Geotgic. 1. signisicat neces­sitate q [...]aeren­darum rerum homines navi­gandi peritiam ac studium repe­risse. commune bonum erat pa­tere Commercium maris. Ambrosius in opere de Creatione: Bonum mare tanquam hospitium fluviorum, invectio Commeatuum, quo sibi diftantes populi copulantur; quae ex Basilio sumta Hexemeri 4. Ma­re forum mundi, insulas stationes in mari, eleganter dixit de Provid. 2. Theodoret. Adjungam his Chrysostomi ad Stebechi­um verba: Quomodo autem satis digne quis explicet facilitatem ad mutua commercia nobis datam? Ne enim itineris longitudo impedi [...] ­tum aliorum ad alios commeatibus adferret, breviorem viam, [...] scilicet, ubi (que) terrarum disposuit Deus, ut mundum tanquam [...] domum communiter inhabitantes, crebro nos invicem viserimus; & a­pud se nata quis (que) alteri Communicans vicissita, commode accipere [...] apud illum abundantes; ac sic exiguam tenens terrae partem, ita tanqu [...] si teneret universam, frueretur ejus quae ubivis sunt bonis. Licet it [...] nunc, tanquam in communi mensa convivarum, unicui (que) ea quae sibi apposita dare alteri longius accumbenti, ac contra quae apud ipsum s [...] accipere manu tantum extenta., which is between all Nations [Page 216] arising from the desire of natural society; while they supply one another mutually, with that, which the one wanteth, and the other can spare. For envy hath never in­vaded either the whole world, or the great parts thereof. Another testimony we have from Plutarch, speaking thus of the Sea: This element hath made our life sociable and perfect, that would otherwise be wild and without correspondence; it supplies our wants with mutuall aide, and by exchange of things needful procures fellowship and friendship. Wherewith agrees that of Li­banius: God hath not granted all things to every land, but hath distributed his gifts to several Countrys, that men having need of one another might maintain society for their common good. Therefore hath he made the Merchant, to convey to all, what any place affords. Euripides Supplicib. also brings in Theseus, accounting Navigation among the Inventions, which human reason hath found out for the general benefit, thus:

But it is a question, whether Tribute may be imposd, by him that rules the Land, upon merchandise passing by Land, or by river, or by part of the Sea, which may be calld an accession of the Land. Certainly, whatsoever burdens have no relation to the merchandise, no equity suffers such to be imposed on the same. Neither can Head-money, put on the in­habitants to sustein the charge of the Commonwealth, be exacted of passengers. Nevertheless, if either to secure the goods, or if, among other reasons, for this also, the publick be charged, some Taxe, by way of compensation, may be layd upon the Commodities, so that the measure of the cause be not exceeded. For upon this depends the justness of Tributes & Toll Vide legem Longobardicam tit. 31. c. 33. & epistolam Episcoporum ad Ludovicum Re­gem quae inter capitula legitur Caroli Calvi, c. 14.. So, Strabo Libro octavo. relates, that the Corinthians even from the most antient times, recei­ved Tribute De thure Plinius, 12. 14. Ev [...]hi non po­test, nisi per Ge­banitas: ita (que) & horum regi penditur vect [...]gal. of the Commodities, which to avoid the compassing of Malea, were carried by land from Sea to Sea. So, the Romans received a price for the passage of the Rhene Etiam in pon­tibus pro tranfi­tu datur, inquit Seneca.: and the Lawyers Pereg. l. 1. de jure Fisci cap. 1. num. 22. Aug. cons. 199. Zabar. cons. 38. books are ful of the like. But oft-times an equal measure is not kept; whereof the Arabi­an Phylarchs are accus'd by Lib. 16. Strabo, ad­ding, It is a hard matter, amongst power­ful and fieroe people, to compound upon termes not grievous to the Merchant.

XXV. The right of staying for a time, of inhabiting, of having desert places.

TO stay sometime, for health sake, Vict. de Ind. rel. 2. n. 1. or for any other just cause, ought al­so to be permitted passengers. For this too is among the innoxious utilities. Where­fore Ilioneus in Virgil Servius ad eum loc. Occupantis e­nim est possessio littor [...]. unde ostenduntur cru­deles, qui etiam à communibus prohibeant. Loomedon ab Hercule occi­sus, quod eum Trojae portu pelleret, Ser­vio ibidem nartance., when the Tro­jans were prohibited to stay on the shore of Afric, is bold to invoke the Gods as Judges: and the complaint of the Mega­renses against the Athenians, who drave them from their havens Pl [...]ch. Peri­cle. [...]. Diod. l. 12. Thucyd. 1., against com­mon right, was approv'd by the Greeks: so that the Lacedemonians esteemed no cause of war more just. Consequent here­to is this, that is is lawfull to build a Cottage on the shore, to shelter them for a season, though we grant the shore to be possest by the Inhabitants. For, what Pomponius said, of having the Praetor's decree, that it may be lawfull to build on the common shore or in the Sea, perteins to buildings Quo & illud Poctae: Contracta pisces aequora sen [...]iunt, Factis in altum molibus. that are per­manent. Moreover, per­petuall habitation is not to be denied these foreiners, who being expulsed from their own seats, seek en­tertainment abroad; on condition, they submit to the government in being, and to other things needfull for the avoiding of seditions. Which equity is well observed [Page 219] by the divine Poet, when he brings in Aeneas yielding to Latinus the Militia, Virgil: Socer arma Latinus habeto, Impe­rium solemne Socer. Lib. 1. Lib. 17. and soveraign power. And in Halicar­nessensis, Latinus himself saith, the cause of Aeueas was just, if compelld by want of roome he came thither. It is the part of Barbarians to repell strangers, saith Strabo out of Era [...]tosthenes: nor were the Spartans in this respect commended: and in the judgment of Ambrose also, they De Offic. l. 3. c. 7. that prohibit strangers to dwell among them, are in no wise to be approved. The Eolians admitted the Colophonians, the Herod. l. 1. & 4. Paus. l. 7. Oros. 7. Diod. l. 5. Rhodians Phorbas and his Fellows, the the Carians the Melians, the Lacedemo­nians the Minyans, the Cumeans others that came unto them. But, of the same Minyans, requiring a part of the Empire after they were admitted, Herodotus rightly saith, They were in urious, and Lib. 4. cap. 6. did what was not lawfull to do. And Va­lerius Maximus saith, They turned a be­nefit into an injury. Lastly, if within the territory of a people, there be some de­sert and barren ground, that also is to be granted to strangers upon their request, yea it is also rightly seised on by them; be­cause, that ought not to be esteemed oc­cupied, which is not cultivated, but only as to the Empire, which remains entire to the first people. To the Trojans were granted by the Latin Aborigines, seven hundred Acres of hard and rough Ground, as Servius noteth. In Dion Prusaeensis Ad 11. An. [Page 220] we read, They do no offence, who inhabi Orat. [...]. and manure a part of the land, that he neglected. The Ansibarians in Tacitus cry Tac. Annal. 13. out: As the Heaven to the Gods, so is the Earth granted to mortals, and what is void is publick: looking up to the Sun and Stars, they did openly as it were enquire of them, whether they were pleased in beholding any ground empty and without inhabitants: They should rather call forth the sea, and overwhelm the spoilers of the Earth. But these men did ill apply these generall sayings to that particular busi­ness. For those lands were not altoge­ther void, but served to feed the cattell and heards belonging to the Army; which was a just cause for the Romans to deny them. And no less justly did the Romans of old ask of the Galli Senones, What right they had to require lands from Liv. lib. 5. the possessors, or to threaten them with War.

XXVI. Of Oaths. How great their vertue is, even in the opinion of Pagans.

AMong all people, and from all time, about promises and contracts, ve­ry great hath been the ver­tue of an oath Sophocles [...]: M [...]ns excitari jurejurande s [...]let, U [...]na diligenter evitet mala, Culpari amicis, & Deos offendere. Our Ance­stors, saith Cicero, esteemed no bond of faith stronger than this. Hence it hath been always be­lieved, [Page 221] that some heavy pu­nishment hangs over the head of perjur'd persous Ut Hesiodus dixit de Jura­mento: —Clades Mortalib. unde Adveniunt, quoties fallaci pectore jurant.: So that posterity Vide Servium in excerptis Fuldensibus ad 1. Aeneid. also paid for the sins of their forefa­thers: (which was not be­liev'd, but of most grievous crimes:) and even the will without the deed drew pu­nishment upon it: both which Herodo­tus confirms by the narration of Glaucus Epicydides, who only deliberated, whe­ther Lib. 2. ubi hoc carmen Pythiae adfert idem Herodo­tus: Ad juramento quaedam est sine nomine proles, Trunca manus, & trunca pedes: tamen impete magno Advenit, at (que) omnem vastat stirpem (que) domum (que) he should break his oath concerning a thing commited to his trust.

And Juvenal rehearsing the same story U. Zachar. 5. 1, 2, 3. & inter­pret. ejus loci Chrysostomum de Statuis 15. so concludes:

Well said Cicero: An oath is a religious affirmation: and what you have firmly promised, as in the presence of God, is Offic. 3. Est Jusiuran­dum affirmatio religiosa: quod autem affirmate quasi Deo teste promiseris, id tenendum est. Lib. de ira Dei. to be made good. But, that he adds; For now it belongs not to the wrath of the Gods, which is none, but to justice and fidelity; if by the name of wrath he un­derstand a perturbation, it is not to be rejected; if any kind of affection or will to punish, it is not to be received, as La­ctantius tightly proves.

XXVII. In an Oath is required a deliberate minde.

LEt us now consider, whence ariseth the vertue of an oath, and how far it teacheth. First, what is said of pro­mises and contracts hath place here al­so: that a mind having use of reason, and deliberate is required. Wherefore, if any one, not conceiving that he swears, utter swearing words, as is related of Cydippe, that may be said, which Ovid ascribeth to her, taken out of Euripides, I ha [...]e not sworn; because my mind went not with my tongue Ovid epist. Quae jurat mens est; nil conjuravimus illa. Eurip. H [...]ppol. Jurata lingua est: mente juravi nihil. quia de re honesta [...]acenda, nutr [...]cis verba intellexent Hippolitus, non de adulterio & incestu. Ovid. ibidem: Consilium prudens (que) animi sententia jurat, Et nisi judicii vincula null tenent. mox: Sed si nil dedimus praeter sine pectore vocem, Verba suis frustra viribus orba tenes. Non ego juravi; legi jurantia verba: &c.. But if one, willing to swear, is not willing to oblige himself, he is ne­ver the less obliged; because obligation is inseparable from an oath, and a ne­cessary effect thereof Soto lib. 8. qu. 1. art. 7. Covarr. ad c. quamvis. p. 1. [...]. 5..

XXVIII. In what sense the words of an Oath bind.

BUt, if one deliberately pronounce swearing words, yet without a minde of swearing, some say, he is not bound, yet sins in swearing rashly. More truly, he is bound to make good his words, whereto he hath called God a witness. For, that act, which by it self is obliga­tory, proceeded from a deliberate minde. Consequent to this it is, that although that of Tully be true, What thou hast sworn according to thy minde, not to do is perjury Tullius: Quod ex animi tui sententia ju­rasti, id non fa­cere perjurum est. Quo & il­lud pertinet quod apud Ho­merum jurans Ulyssi C [...]lypso ai [...]: [...].; Yet hath it this exception, un­less he that swears know, or probably be­lieve, the words are taken otherwise by him, with whom he dealeth. For calling God to witness his words, he ought to make the words true, as he thinks they are understood Augustinus epist. 224. de illo locotus qui è Punicis ca­stris egressus in castra redi­erat, inde Ro­mam venerat: Ita non attenderunt qui illum Senatu moverunt, quid ipse j [...]ndo co­gitasset, sed quid ab illo quibus juraverat exspectarent. Vide & se­quentia. Vide ad hanc [...]em pulcre dicta [...] Trosl [...]iano Tom. 3. Concil editionis Sirmondianae, & apu [...] Hi [...]cmarum in opusculo de divoitio Lothar [...]i & Tethbergae ad interrogatio­nem 6. ubi in hanc lententiam recte de Deo dicitur: Qui non ut juras, sed ut is jurasse putavit cui juras, audi [...] Sic es utri (que) [...]eus. In professione jurata Hebraeorum per Hispaniam: Si non ea inten­tione persec [...]ris, sicut à nobis me prositente audita at (que) intellecta sunt.. And this is that which the same Cicero saith: What is so sworn, as the minde of the giver of the oath con­ceives it must be done, it must be kept. In [Page 224] Tacitus we read, Trembling and changing the words of the Oath by various arts, cón­scious Histor. 4. of their own wickedness. Augustin: They are forsworn, who, the words being Epist. 224. Lib. 2. de sum. bono. cap. 31. 1. citatur causa 22. quaest. 5. c. quacun (que). salved, have deceived their expectation to whom they have sworn. And Isidore: with whatsoever art of words one swears, God notwithstanding who is a witness of the conscience, takes it so as he doth to whom it is sworn. And this is that which is meant by the phrase Liquido jurare Donatus ad illud in An­dria: Quia si forte opus ad [...]erum jureju­randum mi [...]i, Non opposuisse, ut liquido possim. Liquido, pure, & manifeste. Nicetas in A­lexio fraudem Andronici. Comneni cul­pans: Oportuit non quaesita locutione verba adulterare, sed ut concepta ea fuerant, cloqui. qui & alibi de Alexio contra sensum verba captante: ita verbis illis insi­debat, ut musca vibici. Gravi­ter in hanc regulam peccavit aula Arcadiana, quae effecit ut Chalcedone occideretur, is qui Constantinopolim, salute ipsi per jusjurandum promissa, venerat. Zozomen. lib. 5. Appian. de bello civili lib. 1. Pan. in c. clericus de jurejur. Sil. in verbo jurament. 4. [...]. 23. 6. 17. ibi. Thom. Heb. 6. 17, 18.. Therefore did Metellus rightly refuse to swear to the Apuleian Law, albeit there were some that said, the Law, by fault in the preferring of it, was void; and that the oath to the Law was so to be under­stood, if the Law were rightly preferd and made. For, albeit in other promises is ea­sily understood some tacit condition, which may exsolve the promiser, yet is not that to be admitted in an oath. Per­tinent here is that noble place of the A­postle to the Hebrews: God willing most abundantly to shew unto the heirs of pro­mise the immutability of his counsell, con­firmed it by an oath: That by two immu­table things, in which it was impossible for God to Ita recte verti puto illud [...], sicut aperta locutio vocatur veritas, Dan. 7. 16. & 8. 16. & 10. 1. deceive, we might have a strong [Page 225] consolation. For the understanding of which words, we must know, the holy Writers often speak of God [...], and rather according to that which seems to us, than that which is. For, God doth not truly change his D [...]crees; yet is he Jona. 4. 1. said to change and to repent Concil. To­let. 8. c. 2. Ju­rare nam (que) Dei est à seipso ordi­nata nullatenus Convellere: paenitere verò, eadem o [...]dinata, cū voluetit, con­vellere. Retulit Gratianus in causam 22. q [...] 4. explicata vero ut in tex­tu nostro., as oft as he doth otherwise than the words see­med to found; to wit, by reason of a condition tacitly understood Senec. vide Nat. Quaest. 2. 37., that cea­seth, Jer. 18. 8. Examples are frequent to be Gen. 20. 3. Exod. 32. 14. 1 Reg. 21. 29. 2 Reg. 20. 1. Es. 38. 1. Jonae 3. 5, 11. seen. In which sense also God may improperly be said to deceive us: and the word [...], that appears in the said place to the Hebrews, is wont to have the signification of an event frustrating hope, as we may see in sundry Levit. 6. 2. Jos. 24. 27. Es. 58. 2. Ose. 1. 2. Abac. 3. 17. Job 41. 6. Ose. 9. 2. places. And this proceeds most easily in commi­nations, because they do not confer a right on any; in promises sometimes, to wit, where a certain condition is secretly couched. Therefore doth the Apostle name two things, that note immutabili­ty, the promise, because it gives a right; and the oath, because it repels tacit, and in some sort latent conditions; as we may see, Psal. 89. 30, 31, 32, 33, 34, 35, 36. Psal. 89. For, 'tis another thing if the very nature of the business openly de­clare some conditions. Whereunto some refer that which is read, Numb, 14. 30. But it is more true, that the promised land is by oath appointed to them, not the persons, but the people, that is, to the po­sterity of them, to whom God had sworn, [Page 226] v. 23. And such a promise may be fulfild at any time, nor is limited to certain persons.

XXIX. An oath deceitfully procured, when binding. Of Joshuah's oath.

BY that which is said, may be under­stood what is to be judg'd of an oath procured by deceit. For, if it be certain, that he who sweareth supposeth some­thing done, which indeed is notso Ut Hippoly­tus, de quo modo diximus.; and Navar. c. 12. n. 13. that, unless he had believed it, he would not have sworn, the oath will not binde: But if it be doubtfull, whether he would not, even without that, have sworn the same, he must stand to his word, because the greatest simplicity, that can be, agrees unto an oath. And hither do I refer the oath, which Joshua and the Princes of the people of Israel sware to the Gibeo­nites. Josh. 9. They were indeed deceived by the Gibeonites, feigning that they came from a far Country. Yet did it not follow thence, that Joshua and the Princes, had they known their vicinity, would not have spar'd them. For, what they said to the Gibeonites, Peradventure ye dwell a­mong us, and how shall we make a league with you? may have this sense, that the Gibeonites may be asked, what league they desire, whether Social, or of dedition: or also, that the Hebrews may shew, it was not lawfull for them, with certain [Page 227] people, to enter into a social league: Deut. 20. 10. and not, that they may deny, life might be given to those that yield themselves. For, the divine Law, which devoted those nations to destruction, by comparison Imo & ex causa Legi do internecione addita, Ex. 24. 33. Deut. 7. 4. cessat enim ea causa in illis qui praecepta fillorum Noae suscipiunt, & tributa pen­dunt. Ita Mal­monides, & Samson Mico­si, & Moses de Kotzi in prae­cepto jubente 15, & 108. with another law, was so to be under­stood, that it had place, except in them, that being summond were ready to obey. Which is proved, as by other arguments, so by the history of Rahab Et Gazere habitantium, Jos. 16. 10. Gergesaeos ad Christi us (que) tempora su­perstites fuisse ex Evangelio apparet, Matt. 8. 28. nam hi ab initio se de­diderant; Ideo omittuntur in hostium e­numeratione. Deut. 20. 17. Jos. 9. 1., who was spared for her good deserts; and of Solo­mon, who received the reliques of the Ca­naanites under Empire and tribute. And to this purpose is that we read in the Book of Joshua Jos. 11. 19, 20. 2 Sam. 21. 6. De Officiis l. 3. c. 10., That there was not one City of the seven Nations, which made their peace: for they were hardened, that mercy might not be shewed them. Where­fore, sith it was credible, if the Gibeonites had told the plain truth, which for fear they did not, they should nevertheless have obtained their lives, and saved them­selves on condition of obedience, the Oath was of force, in so much that af­terward most grievous revenge was taken by the hand of God for the violation of it. Ambrose treating upon this story: Joshua (saith he) thought not sit to recall the peace which he had granted them, be­cause it was confirmed by the Religion of an oath, lest while he condemned their fraud, he should lose his own credit. Not­withstanding, the Gibeonites, being now by their dedition become subjects of the [Page 228] Hebrews, susteined some punishment for their craft; For, they were put under a certain personal servitude Ut Brutiani olim à Romanis, Gellius 10. 3. Festus verbo Brutiani., when, if they had dealt openly, they might have been received into a tributary condition.

XXX. The words of an oath not to be extended too far.

YEt is not the signification of an oath to be extended beyond the received cu­stome of speech. Therefore they were not perjurd, who, when they had sworn they would not give their daughters in marri­age to the Benjamites, permitted the ra­vished to live with the raptors. For, 'tis one thing to give; another thing not to require that which is taken away Nec hortaban­tur Israelitae, nec prohibebant, ait in hac hi­storia Jose­phus. Seneca excerptorum 6. 2. Lex eum tenet, qui juvat exulem, non qui patiatur juvari.. Am­brose, of this deed: Which indulgence seemeth to carry with it a congruous re­venge upon their intemperance, when they were permitted only to enjoy whom they had ravished, without the solemnity of mar­riage De Officiis lib. 2. c. 14. Livius lib. 39.. Whereto is not unlike, that the Achaians, when the Romans allowed not of some things done by them, and confirmed by oath, requested them to al­ter what themselves pleased; and not bind the Achaians with religion to make the things void, which by oath they had established.

XXXI. An oath binds not, being made of unlawfull matter.

THat an oath may be of force, it is re­quisite the obligation be Tractat hoc bene Ambrosius de offic. 1. & alii relati in causae 22. quae­stionem 4. Perti­net huc Canon 7. Concil. Hiler­densis relati in Tom. 3. Conci­liorum Galliae, & in Hincmari opusculis non pauca. lawfull. Wherefore a sworn promise of a thing un­lawfull, either naturally, or by divine in­terdict, or by human also (of which here­after) will have no force at all. Well saith Philo the Jew Philo de spe­cial. Leg.: Whosoever, for his oaths sake, goes about any injust action, let him know, he is not an observer, but an eversor of an oath; which is worthy of great care and religion, and where­with honest and righteous things are wont to be confirmed. For he adds one fault to another; to an oath not rightly made, and from which it had been better to abstain, he adds an act unlawfull. Wherefore, ab­staining from the unjust action, let him pray to God, whose property is to have mer­cy, that he may obtain his pardon. For to choose a double evill, when one may be ea­sed of the one half, is extreme folly and madness, An example hereof may be gi­ven 1 Sam. 25. Lib. 2. in David, who spared Nabal, whom he sware he would kill. Cicero mentions a like example in the vow of Agamem­nom; Dionysius Halicarnessensis in the conjuration of the Decemviri about op­pressing the Commonwealth. Seneca: Prae­stare fateor posse me tacitam fi­dem, si scelere careat: interim scelus est fides. Ubi interim va­let interdum. Ambrose Offic. 1. c. ult.: It is sometimes against duty to perform a promise, to keep an oath. Augustin: If ones [Page 230] faith be pawned to commit a sin, it is strange to call it faith. Basil saith the same, in his second to Amphilochius.

XXXII. Or, which hinders a greater morall Good.

YEa, although what is promis'd be not unlawfull, but hinders a greater morall good Quale Hono­rii de pace nun­quam facienda cum Alarico, Zozimo Harr an­te. Vide Concil. Hilerd. d. loco. Hincmarum quo (que) dicto opusculo ad interrogatio­nem 14., in this case also the oath will not be of value. The reason is, be­cause we owe to God proficiency in good, so that we may not take away from our selves the liberty thereof. Hither pertains a remarkable passage of the forecited Phi­lo, worthy to be read here: Some are of so hard and unsociable a nature, either ha­ters of mankind, or enslav'd by that cruel mistress anger, that they grow more obsti­nate in their ferity of manners by swea­ring, they will not admit such a one to their Table or within their doors, they will never do him any good, they will ne­ver receive any thing from him till death. That he saith, some swar never to do good to such or such Vide Baba Kama c. 9. sect. 10. & ib [...] nota­ta à doctissimo. Conslantino. Levit. 5. 6. Mat. 15. 5., the Hebrews called this A vow concerning beneficence. The form whereof, as the Hebrew Masters have it, is agreeable to that Korban in the Gospel, of this sense: Be it a gift ded [...]cated to God, whatsoever good thou mightest ever re­ceive from me. The vow, the penalty of consecration being added, was judged very valid by the Hebrew Masters (the [Page 231] worst interpreters in this part of divine Law) though 'twere made against one's parents: which, in that place, is refuted by Christ, in whose words to honour is to benefit, as appears by comparing the place [...] in Mark, and 1 Tim. 5. 3, 17. and Numb. 23. 11. But against whomsoe­ver it is conceived, we shall rightly pro­nounce the oath not obligatory, because, as we have said, it is against proficiency.

XXXIII. Of oaths about things impossible.

WE need not speak of things alto­gether Ad impossibil [...] neminem ob­ligari. impossible: for it is ma­nifest enough that no man is o­bliged unto such. But, for that which is impossible for the time, or upon supposi­tion, the obligation is pendent, so that he who hath sworn upon a supposition, is bound to do his best endeavour, to render that possible which he hath sworn.

XXXIV. In oaths God is named, and in what sense.

THe form of swearing differs in words, agrees in deed. For it ought to have this sense, that God may be invoked, to wit, in this manner, God be witness, or God be Avenger, which two are coinci­dent. For, when a Superiour having right of punishing is call'd to witness, [Page 232] there is withall asked of him a revenge of perfidiousness Ambrosius ad Valentinia­num [...]mp. Quid est jurare, nisi ejus quem testa­re fidei tuae prae­sulem divinam potentiam consi­teri? Vide for­mulam insig­nem Chagani Avarorum apud Menan­drum exce [...]p­tis Legatio­num.: and he that knows all things is a revenger, because a wit­nes. Plutarch Quaest. Ro­man.: Every oath ends in im­precation, if one shall be perjurd. Hither pertein the old forms of leagus, wherein it was the custom to use sacrifices, as ap­pears, Gen. 15. 9, &c. As that Roman form in Livy [...] Iupiter ita illum [...]ito, ut ego hunc porcū. Liv. lib. 1. Lib. 21. Deos precatus ita se macta­rent, ut ipse agnum mact as­set. Sisciens fal­lo ita me D [...]espi­ter ejiciat, ut ego hunc lapi­dem.: Thou O Jupiter so sm [...]e him, as I do this Hogg. And elswhere; Praying the Gods they would so slay him, as he had slain the Lamb. And in Poly­bius and Festus: If wit [...]ingly I deceive, solet Die piter cast me away, as I cast a­way this stone.

XXXV. In oaths also other things are named, with respect to God.

MOreover, it is an antient custom to [...]wear by other things named, & by other persons; either because they wished those to be hurtfull to them, as the Sun, the earth, the heaven, the Prince; or be­cause they desired to be punisht in the same, as in their head, in their children, in their Country, in their Prince. Nor was this the custom of prophane nations onely, but of the Jews, as Philo De special. Legitus. shew­eth. For he saith, men that are about to swear, ought not for every matter present­ly to have recourse to the maker and fa­ther of all things, but to swear by their pa­rents, by heaven, earth, the universe. [Page 233] Wherewith agrees, what the Interpreters of Homer note, that those old Greeks were not wont hastily to swear by the Gods, but by other De Socrate Apollonius apu [...] Philo­stratum 6. Jurabat per ista, non ut per Deos, sed ne per Deos juraret. things present, as, by this Scepter: and that the same was constitu­ted by the most righteous King Khada­manthus, is deliverd by Porphyry and the Scholiast upon Aristophanes. So we read, that Joseph swore by the life of Pharaoh, according to the manner of the Aegypti­ans, noted there by Abenesdras; Elisha, Gen. 42. 15. 2 Reg. 2. 2. Adde 2 Reg. 4. 30. Cant. 2. 7. by the life of Elija. And truly Christ, in the 5. of Matthew, doth not, as some think, pronounce these oaths less law­full, than the other made by the express name of God: but, whereas the Hebrews less regarded these, out of an opinion like to his who said, He did not think the scepter to be God, He shews that these al­so are truly oaths. For Ulpian too hath L. Qui per D. de jurejur. Ita & Grat. causa. 22. quaest. 1. Matth. 23. 21. very well said; He that swears by his life, seems to swear by God; for he swears with respect of the Deity. So saith Christ, He that sweareth by the Temple, sweareth by him that dwelleth therein: and, he that sweareth by heaven, sweareth by him that sitteth thereon. But the Hebrew Masters of those times were of opinion, that men were not bound by the oaths made by Creatures, except a penalty being added, as, if the thing of which the oath was made, were consecrated to God. For, this is the oath Korban, or of the gift, whereof, not only in the said place of Matthew, [Page 234] but in the Laws also of the Tyrians, men­tion was exstant, as we learn out of Jo­sephus's disputation against Appion Nec aliunde arbitre [...] Orientis papulos dictos Graecis [...], quae vox apud Aeschylum & Euripidem exstat. [...], apud eundem Aeschy­lum.. This errour therefore, in that place, Christ opposeth. Tertullian saith, the antient Christians sware by the life of the Prince more sacred than all Genii. In Vegetius there is a form, above mentioned, wherein the Christian soldier swear, not by God only, but also by the Majesty of the Em­perour, which is next to God to be lov'd and honour'd.

XXXVI. Of swearing by false Gods.

ANd, if one swear by false Gods, he shall be bound Liber Sap. c. 14. ut vertit Latinus: Non enim juratorum virtus, sed pec­cantium poena perambulat sem­per injustorum praevaricatio­nem. Aug. epist. ad Pub. 154.; because, though under false notes, yet in a generall noti­on, he looks upon the Deity: where­fore the true God, if one swear falsly, in­terprets it to be done to his dishonour. And we see that holy men, though they never gave an oath under that form, much less did they ever swear so; which I won­der is permitted by Duarenus; yet, if the persons with whom they dealt, could not be drawn to swear otherwise, they con­tracted with them, themselves truly swea­ring as they ought, but receiving from them such an oath as could be had. Wee have an example hereof in Jacob and Laban, Gen. 31. 53. This is that which Se [...]m. 28. de verb. Apostoli. citatur c. ecce dico, causa 22. qu. 5. Austin saith: Even he that swears by a stone, if he swear false, is Et qui per la­pidem jurat, si falsum jurat, perjurus est. Non te audit lapis loquentem, sed punit Deus fallentem. Au­gustin. perjur'd. Af­ter: [Page 235] The stone hears not thy words, but God punishes thy fraud.

XXXVII. The effect of an oath.

THe principal effect of an oath, is to end controversies, as the divine writer to the Hebrews saith: and likewise Philo, An oath is Gods testimony of a thing in question: and Halicarnassensis, The last Procopius Persicor. 2. Jusjur andum quod ab homini­bus habetur om­nibus ultimu [...] at (que) firmissi­mum & fidei mutuae & ve­racitatis pig­nus. Diod. 'Sic. [...]. confirmation among men, both Greeks and Barbarians, which no time will abolish, is that which by oath calleth the Gods to be Sureties of their Covenants. So, to the E­gyptians was an oath the greatest assu­rance among men. Wherefore he that swears is under a double tye, first that the words agree unto his meaning, which Chry­sippus calls [...], next that the deed a­gree unto his words, which he calls [...]. He that offends in the former, is said by the same Chrysippus Hoc [...] vetatur Exod. 20. [...] Levit. 19. ut Hebraei volunt praecepto jubente 240., [...], in the later [...], very distinctly, though the terms are wont sometimes to be confounded.

XXXVIII. When an oath gives aright to God and man, when to God alone.

ANd verily, if the matter be such, and the words so conceived, that they be referred not to God alone, but to man, a right doubtless will be acquir'd by man out of the oath, as out of a promise or con­tract, which ought to be understood most [Page 236] simply and plainly. But, if either the words do not respect man, by conferring upon him a right; or, if they do respect him, but there is somewhat which may be oppos'd against him; then, such will be the force of the oath, that indeed he can attain no right, yet nevertheless he that hath sworn is bound to God to stand to his oath. An example hereof is in him, who by unjust fear gave cause to a sworn promise Austin teach­eth, that an oath extorted by force is also to be kept for the reverence of God. Epist. 124, 125. Ezech. 17. 12. 13. 15. Jerem. 29. 7. Tantum tempo­ribus illis jura­mentum valebat. Cic. Offic. 3. Tolet. l. 4. c. 22.. For he attains no right, or such as he ought to render, upon this ground that he gave cause to the loss. So we see the Hebrew Kings, both reproved by the Prophets, and punished by God, because they kept not their faith sworn to the Babylonian Kings. Cicero commends the Tribune Pomponius, who performed what being compell'd by terrour he had sworn. So much, saith he, in those times did an oath prevail. Wherefore it was not only the duty of Regulus to return to prison, how unjust soe'r it was; but of those ten also, whom Cicero mentions, to Offic. 3. return to Annibal: for they were obliged by their oath. Tho. 2. 2. 89: art. 7. & ibi Cajet. Alex. Imol. in c. ve­rum de jurejur. Solo lib. 8. q. 1. art. 7.

XXXIX. Of an oath to a Pirate, or to a Tyrant.

NOr is it thus only among publick enemies, but among all: For, the person alone to whom we swear, is not respected; but He by whom we swear Gregoras: Perjurium Deo culpam impingit negligentiae., [Page 237] God, who sufficeth to create an obligati­on. Cicero therefore is to be rejected, when he saith, it is no perjury, if the price promised for life be not brought un­to Robbers: because a Pirate is not a de­terminate but a common enemy of all, with whom we ought to have no society either of faith or oath. Which is also said by him elsewhere of a tyrant; and by Brutus, in Appian, With a tyrant, the Ro­mans Civil. 2. have no faith, no Religion of an oath. But, as in the constituted Law of Nations it is true, and shall be shewed hereafter, that an enemy differs from a Pirate; so cannot that difference have place here, where, though the right of the person is deficient, God is concernd Plutarchus Lysandro: Qui juramento hostem circum­venit, is ostendit à se hostem me­tui, Deum con­temni.: for which reason an oath is called by the name of a vow. Besides, it is not true which Cicero assumes, that there is no so­ciety of right with a Robber. For 'twas well answerd by Tryphoninus, that a thing deposited is to restored to a thief Et ei qui regnum sine jure invasit: quomodo Oro­ferni deposi­tum redditum à Prienensi­bus. Polybius & Diodorus Siculus in ex­cerptis Peiresia­nis., by the very Law of Nations, if the owner thereof appear not. Wherefore I cannot allow that which is deliverd by some, that he who hath promised some thing to a Robber, may satisfy his conscience with a momentaneous payment, so that it may be lawfull for him to recover what he hath payd. For the words, in an oath, as to God, are to be understood most simply and with effect. And therefore he that returned secretly to the enemy, and a­gain [Page 238] departed, made not good his oath concerning his return, as it was rightly judged by the Roman Senate.

XL. Of an oath to one that is perfidious.

BUt that of Accius — T. Fregisti sidem. (piam. A. Quam ne (que) dedi, ne (que) do infidels cui-, T. Thou hast brokeis thy faith. A. Which I neither gave, nor give to any one that is un­faithfull, may be allowed of in this sense, L. sicut in fine. de jurejurando c. pervenit quod est 3. de jurejur. Adde L. Lege sun. in fine D. de lege Commiss. if the sworn promise had openly respect unto another promise, which was as it were an implicit condition to it; not, if the promises be of divers kind, and without mutuall respect; For then must every one keep that which himself hath sworn. And upon this ground Regulus is praised by this compellation of the Poet:

The Psalmist, where he enumerates the vertues of a good man, addes this: Ha­ving sworn to his own hurt, he changeth not. Psal. 15.

XLI. Of the Heirs obligation.

HEre is to be noted, whensoever the person hath no right, by reason of some such defect which we have said, but [Page 239] the obligation is to God, in this case the Heir of him that hath sworn is not bound. Because, as goods pass to the Heir, that is, such goods as are in the commerce of men, so do the burdens accompanying the goods pass with them; and not other things, which one oweth out of the duty of piety, favour, or faith. For these do not pertein to that which is strictly called right among men.

XLII. Two cases wherein the obligation ceaseth.

BUt also where the person hath a right, if yet the oath regard the utility of any one, and he refuseth Plautus Ru­dente: Juris­jurandi rogo gratiam facias. it, he that hath sworn shall not be bound. Neither shall he be bound, if the quality Similia vide in L. si duat. Sect. Gentium. D. de excus. tut. & apud Gailium 2. ob­serv. 144. num. 8. & de Arrest. 10. 9. & apud Azor. Instit. mo [...]. 5. 22. q. 6. p. 1. ceaseth under which he hath sworn to any: as, if a Ma­gistrate cease to be a magistrate. Curio in Caesar †, to those that had been the soldiers of Domitius, speaks thus: How could he hold you bound by oath, when having cast away his authority and left his command, being a private man and a captive, him­self was come under the power of another? And after he saith, the oath was voided by Lib. 2. de bello civ. the loss of his place. * Capitis dimi­nutione.

XLIII. Of that which is done a­gainst ones oath.

IT is a question, whether that which C. dilecto. de praeben. Covar. in d. c. quamvis p. 2. sect. 2. n. 10. is done against ones oath be unlawfull only, or also void. Of which I think we must distinguish thus: that if ones faith be onely engag'd, the act done against oath is valid, namely a testament, or sale; not valid, if the oath be so conceiv'd, that withall it conteins a full abdication of power to that act.

XLIV. What Superiours can do about the oaths of their subjects.

THe acts of Superiours cannot so far August. epist. 240, 241. prevail, that an oath, so far as it was truly obligatory, is not to be performed: for that is of naturall and divine right. But because our acts are not fully in our Tho. 2. 1. qu. 89. art. 9. own power, but so that they depend up­on our Superiours, therefore may there be a twofold act of Superiours about that which is sworn, the one directed upon the person of him that swears, the other upon the person to whom he swears. Upon the person of him that swears it may be directed, either before the oath is taken, by making such oath void, in as much as the right of the inferiour is conteind un­der the power of the superiour; or after the oath is taken, by forbidding it to be ful­fill'd. [Page 241] For, an Inferiour, as Inferiour, could not bind himself, but so far as it should please his Superiour: for he had not more ample power. Thus, by the Hebrew Law, Husbands made void the Oaths of their Wives, Fathers of C. Venientes dejurejur. c. 1. de prohibit. feud. alien. per Fed. their Children, which were not yet in their own power. Seneca Lib. 4. de Bo­nefi [...]. 35. proposes this question: What if a Law be made, that none shall do, that which I have promised my Friend I will do? and answers, The same Law defends me, which forbids me. But, the act also may be mixt of both, as, if the Superiour ordain, what the In­feriour shall swear in this or that case, namely, out of fear, or weakness of judgement, shall be of force, if it be ap­proved by him. And upon this ground may be defended those absolutions of oaths, which of old Sueton. Tib. 35. sic & in Hispania diu usurpatum notat Ferdinand. Vas­quez de success. creat. l. 2. sect. 18. L. ult. ad mun. Molin disp. 149. c. si vero: dejurejur. were exercis'd by Princes, and are now, by the will of Princes, exercis'd by the Prelates of the Church, for the better securing of piety. Upon the person of him to whom one swears, the act may be directed by taking away from him the right which he hath gotten, or also, if he have no right, by forbidding his emolument out of such an oath; and that two ways, either for his punishment, or for the publick good, by vertue of supereminent dominion. Hence also may be understood, if the party swearing be not of the same country with him to whom the oath is made, what his [Page 242] or the others Rulers may do concerning it. But, he that hath sworn and promised something to a nocent person as such, namely, to a pirate, cannot therefore take away from him, in the way of pu­nishment, the right which he hath gotten by the promise: because then the words would have no effect, which by all means is to be avoided.

XLV. What oaths are properly meant in the charge of Christ against swearing.

HEre it is observable by the way, that the words of Christ and of James against swearing, do not properly belong to an assertory oath, whereof are some ex­amples in the Apostle Paul, but to the promissory of a future uncertain thing. This evidemtly appears by the opposition in the words of Christ: Ye have heard, it hath been said to them of old, Thou shalt not forswear thy self, but shalt render to God thy oath. But I say unto you, swear not at all; and the reason given by James is this, [...]. Lest ye be found deceitfull Eum sensum vox [...] apud Hellenistas habet, ut appa­ret I [...]h 34. 30. Ma [...]. 24. 51. & alibi.: for that is the meaning there. The same is proved by the words of Christ; But let your Communication be yea, yea; nay, nay: which is exprest by S. James thus; But let your yea be yea; and your nay, nay ubi manifeste est figura quam [...] Rhetores vocant, ut in il­lo, ex illo Cory­don Corydon est tempore nobis. Et in al­tero simili: Ad illum diem Memmius erat Memmius.. Where the first yea, and nay, signifies the promise, the later its performance. For yea is a word of promising: whence it is [Page 243] explain'd by Amen, Apoc. 1. 7. and of the same signification among the Roman Lawyers are the words [...] and quidni, in answer to a stipulation. For the imple­tion of a promise, it is taken in that place of Paul, where he saith, All the promises 2 Cor. 1. 20. of God in Christ are Yea and Amen. 2 Cor. 1. 18, 19. Hence the old saying of the Hebrews, A just mans yea is yea, and his nay is nay. On the contrary, whose deeds dis­ser from their words, with them is said to be yea and nay: that is, their yea is nay, and their nay is yea. So the Apostle him­self expounds it: for when he had denyed himself to have used lightness, he addeth, his speech was not yea and nay Festus varias, referens senten­tias de signifi­catione vocis naucum, sic scribit: Qui­dam aiunt ex Graeco [...]. levem homi­nem significa­ri. Recte in hoc Fes [...] loco scrip­s [...] is, ut saepe apud Homerum: td enim ad v [...] ­cem nauci pro­pius accedit.. Now, if yea and nay signify lightness, it follows, that yea yea, nay nay, signify constancy. Christ therefore saith the same with Phi­lo De Decalogo., It is best and most pros [...]able, and to the rational nature most convenient, to ab­stein from swearing, and so to accustom ones self to veracity, that ones word may be taken for anoath Idem Philo de special. leg. Viri boni oratio pro juramento sit firmo, immu­tabili, sallere nescio,. Josephus of the Essens: Whatsoever they say is firmer than an oath: and to swear is accounted, among them, a thing supersluous. From the Es­sens, or those Hebrews whom the Essens followed, this seems received Nam & Her­mippus Pytha­goricus Pytha­gorae Philoso­phiam ab He­braeis ductam dicebat, teste Origene contra Celsum. Idem & Josephus Heb [...]aeus prodidit, & Ja [...]blichus Pythagoricus. by Pytha­goras, whose sentence 'tis, Let no man swear by the Gods, but every one take care of his credit, that he may be believed [Page 244] without an oath Philo: I am [...]nim is à quo jusjurandum exigitur, perfi­diae est sulpe­ctus. Sophoclis Oedipode Co­loneae dixerat Oedipus: Nolo te adigere jure­jurando ut ma­lum. Respondet Theseus: Nec plus haberes in­de quam vocis sonum. Marcus Antoninus in viri boni des­criptione: Nec opus ha­bens jurejuran­do. Chrysost. de statuis 15. Si [...]edis veracem esse eum quicum tibi negotium est, noli ei jure­jurandi impo­nere necessita­tem; quod si scis fore ut mentiatur, ne coge eum & pejerare.. The Scythians say of themselves to Alexander, as Curtius re­lateth, Think not that the Scythians con­firm their friendship by oath: Colendo fidem jur [...]. they swe [...] by keeping their word. Cicero pro Roscio Comoedo: Quae poena à Diis immortalibus p [...] ­juro, haec cadem mendaci constituta est: Non enim ex pactione verborum quibus jusjurandum comprehenditur, sed ex perfidia & malitia per quam [...] tenduntur alicui, Dii immortales hominibus irasci & suc­censere consuerunt. Solonis dictum celebratur: Ea esto probitate, u [...] ei magis quam juramento credatu [...]. Clemens quo (que) Alexandrinut dixit viri boni esse, Fidem promissi ostendere in Verborum ac vit [...] stabilitate & constantia. Alexis Comicus: Mutus mei pro Jureju­rando v [...]lent. Cicero relates in his Oration for L. Cornelius Balbus, When one at Athens, who had lived amongst them in great repute for his gra­vity and sanctity, had publickly given his testimony, and approched to the Altars to make his oath, all the Judges with one voyce reclamed, and would not let him swear; because they would not have it thought, that truth depended more upon the religion of an oath, than upon the word of an honest man. With the saying of Christ well agrees that of Hierocles upon the golden verses: He that in the beginning said, Reverence an oath, there­in gave a precept to abstain from swearing about such things, which may be done and not done Bene hoc animadvertit Chrysostomus de statuis 12. Periculosum est de suo actu jurare, multa enim nobis eripit ipsa rerum natura, subjecta casibus., and are of an uncertain issue. For such things are little to be regarded, [Page 245] and are mutable, and therefore neither are they worthy of an oath, nor is it safe. And Libanius accounts it among the praises of a Christian Emperour, He is so far from perjury, that he is even afraid to swear the truth Eustachius ad illud Odys­seae [...], sic ait: In rebus incertia non ad asseverationem Juramentum adhibendum, sed preces pro bono exitu..

XLVI. Of faith given with­out an Oath.

THerefore in many places, in stead of swearing, it was invented, that faith should be bound by giving the right hand (which was [...]. Diod. lib. 16. the firmest bond of faith among the Persians) or by some other sign: which was of that force, that if the promise were not fulsil­led, the promiser was accounted no less Pan. in c. ad Aurel. De his quae vi vel me­tus causa. Jas. in lib. 3. [...]. su­rari. D. de jure­jur. Myns. obs. 17. Cent. 1. detestable, than if he had forsworn him­self. Principally of Kings and Princes it is a most usual saying, Their word is as strong as an Oath. For, they ought to be such, that they may say with Augustus, Bonae sides sum, My credit's good; and with Eumenes, I will lose my life sooner than my credit Guntherus Ligurinus: N [...] ­do jus & r [...]ve­rentia ve [...]bo Re­gis inesse solet, quovis juramine major. De Evagora Salaminis rege Isocrates: [...]. Symmach. 10. 19. Nunquam major spes, quam in bonorum Principum sponsioue. Nicetas de Alexio Isaci fratre lib. 3. Regibus jurisjuran­di fides ante omnia alia ponenda est.. Caesars right hand is prai­sed by Cicero for firmness in keeping pro­mises, [Page 246] no less than valour in wars and battails: and in the Heroical times the Scepter lifted up went for the Oath of Kings, as Aristotle hath noted, 3. Po­lit. 14.

XLVII. OF LEAGUES. They are lawfull with aliens from true Religion, by the Law of Nature.

LEagues are Covenants or Agreements made by command of the highest pow­ers: wherein the parties are bound over to the divine wrath, in case they break their faith. It is a famous question, Whe­ther they may be enterd into with those that are aliens from true Religion: which in the Law of Nature hath no doubt or difficulty; for that Law is so cōmon to all men that it admitteth not any difference of Religion. But the question is about the Law Divine: out of which it is discussed, not by Antoninus, Cajet. Tolet. Molina, Val­desius, Malde­rus. Tho. 2. 2. qu. 10. art. 10. Oldr. cons. 71. De­cian. 3. cons. 20. Divines only, but by some Law­yers too, and amongst them by Oldradus and Decianus.

XLVIII. They are not universally forbidden by the Hebrew Law.

FIrst let us consider of the old Divine Law, and after of the new. It was lawful, before the Law of Moses, to con­tract a League with aliens from Religion, [Page 247] for an offensive and harmless behaviour. We have an example in the League of Ja­cob Gen. 31. 44. with Laban: to say nothing now of Abimelech, seeing it is not certain he was an Idolater. Nor did the Law gi­ven by Moses make any change. The Egyptians may be an example: who were then (no doubt) Idolaters; yet are the Deut. 23. 7. Hebrews forbidden to be averse from them. The seven Nations are to be ex­cepted, condemnd by divine sentence, whereof the Israelites were delegated to be the executioners. For these persisting in their Idolatry, and refusing to submit, might not be spared; to whom, by divine decree, were added the Amalekites. Deut. 7. 1. Leagues of commerce also, and such like perteining to the utility of both or of ei­ther Deut. 25: 17. party, are by the Law permitted with the prophane: for nothing is found to hinder them. And we have the ex­amples of Leagues which David and Solo­mon made with Hiram King of Tyrians: and it is observable, that in the sacred history the league made by Solomon is said to be made according to the wisedom which God had given him. Indeed, the Law of Moses specially commands, to do good unto their Countrymen; Moreover, Levit. 19. 8. Deut. 22. 1. [...]. the peculiar diet and course of life, pre­scribed to the Jews, did scarce admit any familiar conversation with other people. Yet doth it not follow hence, either that it was not lawfull to do good to fo­reiners, [Page 248] or that it was not also laudable, which the ill Interpretation of later Ma­sters, not rightly, hath collected thenee. And therefore Juvenal saith of the Jews, That they would not shew the way to any differing from them in Religion. Where, by the example of shewing the way, are signified easy courtesies and benefits that may be done without any trouble or charge; such as Cicero and Seneca say are Offic. 1. De benes. 6. 9. to be done to strangers, whom we never saw before. To the same purpose is that of Tacitus of the same Jews; Among Histor. 5. themselves they are of obstinate faith, and very mercifull; to all others they bear an hostile hatred. So, in the New Testa­ment we often read, that the Jews have no dealing with other Nations; and A­pollonius Mola objected to them, that they admitted not those, that had diffe­rent opinions of God, nor had any thing to do with men of another institution Amici An­tio [...]i apud Diodorum Ju­daeos accusant, Solos ex omni­bus populis in­sociabiles esse ex [...], it a ut cae [...]os pro ho­stibus ducant. Sequitur de iisdem: cum nulla gente alia mensam habere communem, ne (que) bene eos aliis velle. Mox eis tribuitur, odium humani generis. Et apud Philostratum Tyanenfis de Judaeis, vitae genus adeo secretum ab humano commercis repererunt, ut ne mensam quidem cum aliis communem habeunt. Sicut & passi [...]n Judaeis apud Josephum objicitur, [...].. But, that this is not the sense of the Law, Christ hath taught us by his own exam­ple, when, being every where most ob­servant of the Law, he refused not water from the Samaritan woman. And David long before sought for refuge among ir­religious [Page 249] people, no where reprehended Antiq. 8. 2. Deut. 23. 6. Jud. 11. 16. 2 Sam. 10. for it. Solomon in Josephus, dedicating the Temple, and praying, that God in that place would hear also the prayers of strangers, saith, We are not of an inhuman disposition, nor ill affected to those that are not of our own Nation. From this rule are to be excepted not only the Nations before mentiond, but the Ammonites too, and Moabites; of whom it is written, Thou shalt not seek their prosperity (so we turn it rather than their peace) nor their good all thy days. In which words bene­ficent leagues with them are forbidden, and not a right of War allowed; or to be sure (which is the judgment of some He­brews) peace is forbidden to be asked of them not, to be accepted when tis offerd. Certainly, a right of War upon the Am­monites is denyed the Hebrews, Deut. 2. 19. Nor did Jephtha carry arms against them, but after he had tryed the ways of an equal Peace; nor David, till he was provoked by cruel injuries. It remains, that we enquire about society in War. That this also, before the Law, was not unlawfull with prophane Nations, ap­pears by the example of Abraham Idem cum Escole & Ane­ro foedus fecit. Sic & David cum Achi & Na [...]so: Solo­mon cum Ae­gyptiis: Asa cum Benada­do., aiding the wicked Sodomites with his arms. Nor do we find any thing in this matter generally changed by the Law of Moses. And this we see to have been the opinion of the Asmonaeans Laus eorum est in Thargu­me Chaldaico, in libris Mac­cabaicis, in e­pistola ad Hae­braeos. Horum exemplum se­cuti Impp. & Reges Chri­stia [...] foedera aut cum non Christianis, aut cum non sanè Christia­nis f [...]cere, Constantinus cum Gotthis & Vandalis, Justinianus cū Longobardis, &c. Adi Johan. de Carthag. l. 3. De jure Belli Rom. Pontificis, c. 1. Julius 2. Pontisex Turcis usus., being both skilful of the Law and very reverent, as [Page 250] tis evident by their Religious observati­on of the Sabbath, no other use of arms being permitted, but only for self-defense. And these yet made a league with the Lacedemonians and Romans, by the assent of the Priests and people: yea and pub­lickly offerd Sacrifice for their safety. In­stances to the contrary have peculiar causes. For if beside those that were ex­pressed in the Law, God had signified by his Prophets, any Kings or Nations to be odious to him, and condemned to an overthrow; to undertake the defense of them, or to joyn forces with them, was, without doubt, impiety. Hither perteins that of the Prophet to Jehosaphat touch­ing the King of Israel: shouldest thou 2 Paralip. 19. 2. help the ungodly, and love them that hate Gratianus Valenti patruo contra Scy­thas opem pe­tenti scripsit, Fas non esse so­cialia arma jungere cum eo qui Dei sit ho­stis. Zon tras. 2 Paralip. 25. 7. the Lord? therefore is wrath upon thee from before the Lord. For Michaia the Prophet had already foretold an unhap­py issue of the War. And that of another Prophet to Amaziah, O King, let not the Army of Israel go with thee: for the Lord is not with Israel, to wit, with any of the Children of Ephraim. Now, that this comes not from the nature of the League, but from some peculiar quality of the person, is evinc'd even hence; because Jehosaphat was heavily rebuked, a curse also being added, for this, that for com­merce sake he had joyned himself with 2 Paralip. 20. 37. Ahaziah King of Israel, and had en­tred into such a society, as David and [Page 251] Solomon had made with Hiram: whom we have said to have been, for that rea­son, partly not reprehended, partly com­mended. For, what is added, that Aha­ziah 2 Paralip. 16. 2, 7. did wickedly, ought to be referred to his whole life: for which God was of­fended Es. 8. 6. with him, and with all his enter­prizes, as this history is explained in the book entitled Clement's Constitutions. Lib. 6. cap. 18. Moreover, this is to be noted, that their cause, who being sprung from Jacob had forsaken God well known unto them, was worse than the cause of strangers. For against those Revolters the rest of their Countrymen were armed Adde exem­plum Josue cap. 22. by a Law ex­tant. Deut. 13. 13. Sometimes also Leagues are blamed for some vice of the mind wrence they did proceed: so was As [...] reprehended by the Prophet, for betaking himself to the so­ciety of the Syrian, upon distrust of God; which he had shewed in sending to the Syrian things consecrated. But the same King was reproved too, because he had 1 Paralip. 16. 12. Ambros. ad Roman. c. 3. Auct. imperf. ad Matth. c. 16. plac'd his hope, not in God, but in Phy­sicians. Wherefore, it doth not, from this history, more follow that it is evil, by it self, or generally, to contract society with such as the Syrians were, than to con­sult with Physicians. For, many things not unlawfull are vitiated by the mind, as David's muster, and Ezechia's shewing 2 Sam. 24. of his treasure. So elswhere, confidence put in Egypt is reprehended, when it was 2 Reg. 20. 13. Esa. 31. 1. 1 Reg. 3. 1. lawful nevertheless for Solomon to con­tract [Page 252] affinity with the Egyptian. To all which, this is to be added, that the He­brews, under the state of the old Law, had express promises of victory, if they kept the Law; the less need had they to have Deut. 28. [...]. recourse unto human aids. Lastly, there are indeed extant in Solomons Proverbs, Prov. 1. 15. 13. 20. 22. 24. 24. 1. Sentences not a few, of shunning the so­ciety of wicked men: But these are the Advisos of prudence, not Precepts of Law; and those very Admonitions, as most moral sayings, are capable of very many exceptions.

XLIX. Nor are they forbidden by the Evangelical Law.

NOw, the Law of the Gospel hath Vict. de Indis rel [...]ct. 1. n, 15. & 17. Fra. Arius de bello n. 192. Cajet. 2. 2. qu. 40. art. 1. M [...]lin. tract. 2. disp. 112. Matth. 5. 45. Gal. 6. 10. changed nothing in this business; yea, it hath a more favorable aspect upon leagues, whereby aliens from Religion, on just cause, are relieved; because, it hath not left beneficence to all sorts of men, upon occasion given, only free and lau­dable, but hath put it under precept. For, by Gods example, who maketh his Sun to arise upon the good and evil, and sen­deth rain to refresh them both, we are commanded to exclude no kind of men from our benefits. Tertullian said well: Lib. 7. c. 3. So long as Israel only was his people, God did justly command mercy toward their brethren alone: But after that he gave unto Christ the Nations for his inheri­tance, [Page 253] and the ends of the earth for his pos­session, and that began to be paid which was promised in Hoseah, They that were not my people shall be my people, and the Na­tion that had not obtained mercy shall ob­tain mercy; from that time Christ hath extended unto all the Law of fraternal benignity, excluding none from our com­passion, no more than from his vocation. Which words are to be understood, with differenee of degree, that we must be good to all, but especially to the professors of the same Religion. In Clement's Con­stitutions we read, It is our duty to com­municate of our goods to all; yet so, that we have a speciall eye to the poor Saints Perfecta libe­ralitas, inquit Ambrosius of­fic. 1. 3. fide, causa, loco, tempore com­mendatur, ut primum oper [...] ci [...]ca domestic [...]s fidei. Simile est illud Aristote­lis; Ne (que) enim par est aequalem curam subiri pro externis & pro amicis. Nic. 2 Thess. 3. 15. 2 Cor. 6. 14, 15.. Familiar conversation also with aliens from Religion is not prohibited: no not with them whose cause is worse, and who fall away from the rule of Christian Dis­ciplin, is all commerce interdicted, but familiar without necessity, not also that which affords any hope for their amend­ment. And that which is in Paul, Be yee not unequally yoked together with unbe­lievers: for what fellowship hath righte­ousness with unrighteousness? and what communion hath light with darkness? And what concord hath Christ with Be­lial? or what part hath he that believeth with an Infidel? pertains to those that fea­sted in the Idol-Temples, and so either committed Idolatry, or at least made a shew thereof. This is manifest by the [Page 245] following words, What agreement hath the Temple of God with Idols? parallel to the words in the former Epistle to the same, Ye cannot be partakers of the Table 1 Cor. 10. 21. of the Lord, and the table of the Devills. Nor will the argument proceed rightly from this, that of our own accord we are not to submit to the Government of the prophane, nor contract mariage with them: For in both these cases appears greater hazard, or certainly greater diffi­culty, to the use of true Religion. Add, that these bonds are more lasting, and in ma­trimony there is a free choice; when leagues are to be made according to the exigence of times and places. And as it is no evill to do good to the prophane, so neither is it unlawfull to implore their help, as Paul invoked the aid of Caesar and the Chief Captain.

L. Cautions about such Leagues.

HEre then is no intrinsecal or univer­sal Sylv. verbo bel­lum. 1. 9. 3. Pan. in cap. quod super de voto. pravity, but to be esteemed by the circumstances Vide Orati­on. Phartazae ad Lazos apud Agathiam 3. Saxo lib. 9. in verbis Ludo­vici Regis Francor. ad Heraldum: Nullam posse animorum inter­venirc concordiam dissona sacra complexis. Quamobrem petitorem [...] primum religion i [...] contubernio opus habere, ne (que) magnorum operum con­s [...]tes existere posse, quos super [...] venerationis formula disparasset.. For, heed must be taken, lest too much commixture bring contagion to the infirm: to which end it will be profitable, their seats should be distinct, as the Israelits dwelt asunder [Page 255] from the Egyp­tians Ne (que) enim ratione [...]aret illud Alex­andridae: Ego esse vester non queam commilito, Quando nec Leges, nec mores consentiunt, Sed multis inter se intervallis discrepant.. Hither pertains, what we have else­where alleged, concerning the Religion of Jews and Christians in their fellow-soldiership with the Pagans. A­gain, if by such society the prophane State be like to receive great encrease, there will be no joyning with them, ex­cept in point of extreme necessity. Where­in hath place, what Thucydides said in a like matter: They that are treacherously Lib. 1. assaulted, as we are by the Athenians are not to be blamed, if they seek for safety, and secure themselves, by the aid, not of Greeks only, but Barbarians. For it is not every right, that is sufficient for the do­ing of that, which may be esteemed in­directly, if not directly, hurtfull to Reli­gion. Because, in the first place we must Matth. 6. 33. Fred. lib. 4, hist. Remens. cap. 6. seek the Kingdom of Heaven, that is, the propagation of the Gospel. It were to be wisht, that many Princes and peo­ple at this day would take into their con­sideration that free and pious speech of Fulco Archbishop once of Rhemes, ad­monishing Charles the simple thus: Who may not be afraid, seeing you covet amity with the enemies of God Exemplum i [...] Ma [...]afa apud Nicetam reb [...] Isaaci Angeli l. 2. Welfare the piety of Ema­nuel Duke of Savoy, who when he was able to take Cyprus by the aid of the Turk, refus'd it., and to the o­verthrow and ruine of the Christian name take unto you Pagan arms, and enter into leagues detestable? For there is little dif­ference [Page 256] between associating with Pagans, and worshipping of Idols, God being deny'd. In Arrianus is extant a saying of Ale­xander: They are great Offendors, who serve the Barbarians against the Greeks, contrary to the Laws of Graecia.

LI. All Christians are oblig'd to joyn in League against the enemies of Christianism.

HEre is to be added, sith all Christi­ans 1 Cor. 12. 18, 26. are members of one body, and are commanded to be sensible of one ano­thers pain, as this pertains to single per­sons, so doth it also concern Common­wealths as they are Commonwealths, and Kings as they are Kings. Nor ought every one, in his own particular only, but according to the power committed to him, to do service unto Christ. Now Kings and Commonwealths are not able to do thus, while an impious enemy overruns all with arms, except they mutually aid and assist each other Ad hanc rem vide Maria­nam lib. 30. Parutam l. 4. Bezarum 7, & 12., which cannot commodiously be effected without entring a League to that purpose. Which League hath been long since entred, and the Ro­man Emperour, by common consent, chosen Prince thereof; Wherefore it is the duty of all Christians, according to their power, to contribute men or moneys to this common cause: and I do not see how any can be excused for not doing so, unless [Page 257] they be engaged at home, and deteined by some inevitable war, or other the like unhappy hindrances.

LII. If divers Consederates wage [...]War, which is to be aided.

THis question also is often incident, If divers wage war, to which of them he ought to give assistance, who is con­sederate to Both. Here first we must re­member, that there is no obligation to unjust wars. He then is to be preferr'd who hath a just In fidelitate Feudali dici­tur: Et si sci­vero velle te a­liquem juste os­fendere, & in­de generaliter vel specialiter fuero requisitus, meum tibi, sicut Potero, praesta [...] auxilium. cause of war, if he hath to do with one without; yea, if with one within the league. So Orat. de Mega­lopo'i. Demo­sthenes shews, the Athenians ought to assist their fellows the Messenians, against their other fellows the Lacedaemonians, if the injury begin from these. But this is true, so, unless it were agreed, that no aid should be sent against such a confede­rate. In the agreement of Hannibal with the Macedonians, it was an article, Polyb. l. 6. We will be enemies to your enemies, except the Kings, and Cities, and havens, where­with we have league and friendship. More­over, if the confederates quarrel upon causes unjust on both sides (which may happen) neither part is to be taken. So it is said in Aristides: Did they crave aid Leuctricâ 5. against aliens, 'twere easy to answer: but, when one confederate opposes another, they would not mix in the business. But if [Page 258] confederates make war upon others, each upon just ground, if aids can be sent to both, viz. men or money, they are to be sent, as it is done about personall credi­tors: but, if his presence, who hath pro­mised, be requir'd; seeing he cannot be present with both, reason determines him to prefer that side, where with his League is more Vide de Feu­dis lib. 4. c. 31. Libro 9. antient: which the Acarnans tell the Spartans in P [...]lybius: and to the same effect is the answer of the Roman Consul to the Campanians, It is meet, our relations should so be orderd, that no elder friendship and society be violated Amicis auxi­lia fer [...]nda con­tra hostes, non contra amicos, dicit Ptolo­maeus Atheni­sibus apud Ap­pianum in Le­gationum ex­cerptis. Sylvest. in verb. bellum, 1. 7.. Yet is this exception to be added: unless the yonger league have, beyond the pro­mise, some thing that conteins in it, as it were, a translation of dominion Vide Radevi­cum 2. 7., that is, something of subjection. For so also, in vendition Edicto Theo­dorici c. 138., we say the former is to be preferr'd, except the later hath translated a dominion. So the Nepesins in Livy Lib. 6. held the faith of dedition more sacred than that of society. Some distinguish of these things more subtilly, but what I have said, as it is more simple and plain, so I suppose it is more true.

LIII. Of the dissolution of a League.

THe time being expir'd, the League is Dec. Cons. 407. not to be conceiv'd tacitly renew'd, unless by such acts, which do admit no o­ther [Page 259] interpretation; For a new obli­gation is not easily presumed. If one Dec. Cons. 260. part hath violated the league, the other may depart from it. For the several heads of the League have every one the force of a condition. For example may be that in Lib. 1. Thucydides: They bear the blame of brea­king the League, not, who being deserted betake themselves to others; but they, who perform not really that assistance which they had promised upon oath. Elswhere in the same Historian: If either part trans­gress their Articles never so little, the A­greement's broken. But this is thus true, except it were otherwise condition'd; which is wont sometimes to be, that for every offense it may not be lawfull to de­part from the League.

LIV. Of Interpretation.

IF we look upon him alone, who hath promised, he is bound of his own ac­cord to perform that to which he meant to bind himself. In a promise must be In fide quid senseris non quid dixer is co­gitandum. De off. 1. considered, what you thought, not what you said, as Cicero hath it. But, because internal acts are not visible by them­selves, and somewhat certain must be de­termined, lest there be no obligation at all, if every one might free himself by af­fixing on his own words what sense he please; by the dictate of natural reason, he to whom any thing is promisd, hath [Page 260] a right to compell the promiser to that, which right interpretation suggesteth. Fo [...] otherwise the matter would have no end, which in morals is accounted for impos­sible. In this sense, it may be, Isocrates, when he had discoursed of Covenants in the prescription against Callimachus (as the most eminently learned Petrus Faber hath rightly amended the place) saith, This Common Law we men perpetually use among our selves; nor Grecians only, but Barbarians too, as he had said a little a­fore. Pertinent is that in the old form of Leagues in Livy, Without evil deceit, as those words here are most rightly Vota inter­pretanda ut communiter sumuntur, notant Hebraei ad Num. 30. un­derstood Liv. lib. 1. Sine dolo malo, uti (que) ea hic ho­die rectissime in­tellecta sunt. at this day. The measure of right interpretation is, a collection of the meaning out of signes most probable. If there be no conjecture drawing another way, the words are to be understood ac­cording to their propriety, not Gramma­tical, which is from their original, but from popular Quem penes arbitrium est, & jus & norma loqueudi. Bene Proco­pius Vandali­corum 1. ubi de voce agit Faederatorum. Lo [...]ga di [...]s non solet serva [...] voces in quibus prim [...] datae sunt; sensu vertuntur enim res ipsae quae volunt homines, vocabula illa primitus imposita rebus nihil curantes. use. Wherefore the Lo­crians used a foolish refuge for their per­fidiousness, when, having promised they would stand to their agreement, so long as they stood upon the earth, and caried heads upon their shoulders, they cast out the earth put into their shoos, and threw away the heads of other men pla­ced on their shoulders, as if by that means [Page 261] they could acquit themselves; The histo­ry is extant in Polybius Polyb. 12. Simile quod Boeoti urbem polliciti red­dere, non stan­tem, sed ever­sam reddidere. Thucyd. 5. Et quod Mahu­me [...]s Sultana [...], Euboea Capta, eum dissecuit, cui caput incolume fore prom serat.; and some o­ther examples of like falsness in Polyae­nus, which need not be transcribed, be­cause they have no controversy. By such frauds, Cicero De Offic. l. 3. said honestly, perjury is bound faster, not dissolved.

LV. How words of Art are to be interpreted.

TO Words of Art Augustin. in Rhetor. ut multa nova tam à technicis & Mathematicis quàm à Philo­phis cognomi­nantur, accipere debemus, non tam pro solito usu consuctudi­nis, quam pro conditione prae­cepti., which the people hardly understand, is to be applyed the definition of men skilful in every Art: as, what is Ma [...]esty, what is Paricide: which the Masters of Oratory refer ad statum finitivum. For Cicero Acad. 1. said truly, Logicians have no vulgar terms, they use their own: and so do almost all other arts. So, if in an Agreement an Army be spoken of, we shall define an Army to be such a number of Soldiers, which openly dares invade the territories of an enemy. For Historians usually do oppose that which is dome privily, or after the manner of robbers, and that which is done by a just Army. Wherefore in proportion to the enemies strength, it is to be judged of what forces an Army doth consist. Ci­cero Paradox 6. makes it to consist of six legions and the Auxiliaries. Polybius saith, the [Page 262] Roman Army for the most part did con­tain sixteen thousand of Romans, twen [...] of aids. But a less number also may [...] up the greatness of that name. For Ul [...] ­na saith, he is leader of an Army, wh [...] L. 2. D. de hu qui not. insa­mia. Lib. 3. c. 1. commands but one Legion with the aids: that is, as Vegetius expounds it, ten thou­sand foot, two thousand horse. And L [...]y sets down a kind of just army of eight thousand. In like sort must we judge of a Navy. So, a Fort Servius ad i. Aen. Arces di­ctae ab eo quod est arceo: quod inde hostes ar­centur, hoc est, prohibentur. is a place which can keep off the hostile forces for a time.

LVI. Interpretation by Conjecture.

COnjectures are usually taken from the matter, and the effect. From the L. si uno. D. loc. conduct. Ever. in loco à subjecta materia. matter: as the word day, if thirty days truce be agreed on, ought not to be un­derstood of natural days, but of Civil: for that is congruous to the matter. So the word donare, to give, is taken for to transact, according to the quality of the business. So the word arms, which some­times signifies instruments of war, some­times armed Soldiers, with respect to the matter, is to be interpreted for this, or that. So he that hath promised to render men, ought to render them alive, not dead; contrary to the cavill of the Platae­ans. And they that are commanded fer­rum deponere, satisfy the command in putting off their swords, though not their [Page 263] steel buttons; upon which Pericles je­sted. And to march away freely out of Town, must be understood so, that the way also may be secured: contrary to what was done by Alexander. And half the ships in the division, must be understood of whole ships, not cut a sunder: contrary to what the Romans did to Antiochus. Of the like matters we may make the same judgment. From the effect we make con­jecture, Everh. in loco ab absurdo. if the word taken in the more re­ceived use draw after it any thing against reason. For, in an ambiguous word, that L. in ambig. D. de Legib. interpretation is rather to be received, which hath no hurt in't. Wherefore that cavillation of Brasidas is not to be admit­ted: Thucyd. 4. who having promised he would de­part out of the Boeotian fields, denyed the fields he possessed with his Army, to be­long to the Boeotians: as if the word were meant, not of their ancient bounds, but of warly possession: in which sense 'twere a vain agreement.

LVII. Some distinctions and rules for interpretation.

MAny words have several significa­tions, one more strict, another more large: which proceeds from many reasons; either because the gene­ral name adheres to one of the species, as in words of cognation and adoption; al­so in Nouns masculin, which are taken [Page 264] for the common too, where common are wanting; or because the use of ar [...]is wi­der than popular use; as deatb, Vide Guice. l. 16. ubi de pactis Car. 5. ad Mediola­nensem Duca­tum pertinen­tibus sermo. Alc. 5. resp. 17. in the Civil Law is enlarged to signify deporta­tion, when among the people it signifies otherwise. Moreover, we must note, that things promised, some are favorable, some odious, some mixt, or of a middle nature. Favorable are those which have in them­selves equality, and which regard com­mon utility; the greater this is, and more extended, so much greater is the favour of the promise; as of things which make for peace, than of those which make for War; and of War Defensive, than upon other causes. Odious are such as burden one part only, or one more than the o­ther, and such as contein in them punish­ment, and make acts void, and bring in a change of what was before. That which is mixt, as bringing a change, but for peace sake, proportionally to the good, or the change will be esteemed sometime favou­rable, sometime odious, yet, so that caete­ris paribus favour is to be preferred. Upon Gl. in [...] von possunt. D. de Legibus. these grounds these Rules are to be kept. In things not odius, the words are to be taken according to the full propriety of popular use, and if there be more signifi­cations, the largest is best; viz. the Mas­culin is to be taken for the Common Gen­der, and an indefinit speech for an u­niversal. So these words, unde quis de­jectus est, whence one is dispossest, will [Page 265] pertain also to the restoring of him, who by force is prohibited to come into his own. For the word taken more largely bears that signification, as Cicero disputes Bart. in lib. si is qui proemptore. D. de usuc. for A. Caecina. In the more favorable, if the speaker understand the Law, or use the Counsel of Lawyers, the words are to be taken more largely, that they may also include the signification of Art, or which the Law hath given. But we must not recur Vide exem­plum in l. cum virum c. de fi­dei com. to significations plainly im­proper, unless otherwise some absurdity or inutility of the Agreement would follow. Covar. 3. Var. c. 3. n. 5. Tiraq. in leg. connub. Gl. 5. n. 115. On the other side, words are to be taken, even more strictly, than propriety suffers, if it be necessary for the avoiding of ini­quity or absurdity: but, if there be not such necessity, but manifest equity or uti­lity in the restriction, we must stay within the narrowest bounds of propriety, unless the circumstances disswade. But in odious things, even a figurative speech is admit­ted, whereby the odium or burthen may be shunned. Therefore in donation and remission of ones right, words, though general, are wont to be restrained unto those things which were probably thought upon. And in this kind of things, that will be sometime understood to be occupied, which, it is hoped, may be reteined. So, aids promised from one part only, will be Barb. 4. cons. 62. understood to be due at the charges of him who shal require them.

LVIII. Whether in the name of Confe­derates are conteined those that shall be so.

IT is an illustrious question, Whether in name of the Confederates are meant only those that were so in the time of making the league, or also those that be­come so afterward: as in the league made between the people of Rome and Car­thage after the war about Sicily; The Utrius (que) populi so [...] ab utroque populo tuti sun­to. Confederates of either people shall be secu­red from them both. Hence the Romans inferred, although the Agreement made with Asdrubal, of not passing the river Iberus, profited them nothing, because the Carthaginians had not confirmed it; yet, if the Carthaginians did approve the fact of Annibal setting upon the Sagun­tines, whom the Romans, after the league, had taken to them as Confederates, that then war might be proclam'd against them, as Violators of the League. Livy thus declares the Reasons: The Sagun­tines Lib. 21. were sufficiently provided for, the Confederates of both parties being excep­ted: For it was not added, Confederates that then were, nor that none afterward should Which was added in the Peloponnesian peace between the Laccdaemo­nians and Athe­nians. Thucyd. lib. 5. be assumed. Now, sith it was lawfull to assume new Confederates, who would think it equity; either that any should be receiv'd into friendship upon no desert, or being receiv'd should not be defen­ded: [Page 267] Only it was provided, that the fel­lows of the Carthaginians should neither be tempted to revolt, nor be entertained revolting of their own accord. Which words are almost all translated out of Po­lybius. What shall we say in this case? Histor. lib. 3. It cannot be denyed, but the word Con­federates, without any violence, may re­ceive both the strict signification of them who were so in the time of the League, and the other more large which includes the future too. Wherefore we must see, by the former rules, which interpretation is to be preferr'd: according to which rules we say, the future are not comprehended; because the question is about rupture of the league, which is an odious matter; and about depriving the Carthaginians of their Liberty, to use force of arms against such as were believed to have done them injury: which liberty is natural, nor is it suppos'd easily quitted Romani Sam­nitibus, Sidi­cinos bello pe­tere volenti­bus, petenti­bus (que) ut id per Romanos fieri liceret, respon­derunt: Nihil intercedi, quo minus Samniti populo pacis bel­li (que) liberum arbitrium sit. Liv. lib. 8. In Antiochi soedere est: Si qui sociorum popull Romani ultro bellum inferrent Antiocho, vim ei ar­cendi jue esto: dum ne quam urbem aut belli jure tenea [...] aut in amicitiam recipiat. Liv. 38. Polybius in excerptis Legationum, 35.. Was it not lawfull then, for the Romans to take the Saguntines into society, or to defend them being admitted? Surely it was, not by vertue of the League, but by natural right, which by the League was not re­nounced: so that the Saguntines were, in respect of Both, in the same condition, as if nothing had been agreed concerning [Page 268] their Confederates. In which case, neith [...] were the Carthaginians violators of the League, if they did war upon the Sagun­tines, when they judged it to be just; no [...] the Romans, if they did defend them. Plainly, as in the time Pyrrhus, it was agreed 'twixt the Carthaginian and the Polyb. Hist. 3. Roman, that if either of them entred League with Pyrrhus, he should so do it, saving the right of sending aids to him, whom Pyrrhus should invade. I do not say, that war could have been just on both sides; but I say this perteined not to the violation of the League Pr [...]cop. Per­sic. 2. Dicebat Alamundarus Rex Saraccno­rum, non viola­ri à se quae inter Persas Roma­nos (que) convene­rant, quandoquidem ipse à neutra parte conventis inscriptus esset.. So doth Polybius, in the question touching aid sent by the Romans to the Mamertins, distinguish the Querees, Whether it were just, and, Whether it were lawfull by the League.

LIX. One shall not wage war with­out leave of the other, How un­derstood. And, That Car­thage shall be free.

THe former example was in an equal League, we will set down another in an unequal: if it were agreed, that one should not wage war without consent of the other Confederate. This was an ar­ticle in the League of the Romans and Car­thaginians, Liv. lib. 42. after the second Punic war: [Page 269] and likewise in that of the Macedonians, with the Romans, before the reign of Per­seus. Whereas the word Warring, may both signify all war, and peculiarly that which is offensive; here we shal take the narrower signification, that liberty may not be too much restrained. Of the same kind it is, that the Romans promised, That Carthage shall be free Diodorus Si­culus sic refert excerpto lega­tionum 27, mansura illis Leges, regio­nem, sacra, se­pulcra, liberta­tem.: Which, although, by the nature of the act, it could not be under­stood of the fullest power (for they had afore let go the right of undertaking war and some other things) yet did it leave them some liberty, and at least so much, that they were not bound, at anothers command, to change the seat of their Ci­ty. In vain therefore did the Romans urge the word Carthage, saying the mul­titude of Citizens, not the City, were thereby signified (which, though impro­per, may be granted, by reason of the at­tribute, which is more meet for the Citi­zens than the City:) For, in the word, free ( [...], as Appian speaks) there was a manifest fallacy.

LX. Of Agreements perso­nal and real.

IT is also a frequent question, pertinent here, concerning Agreements perso­nal and real. And truly, if the Treaty was with a free people, no doubt but what was, is promised them, is in its own na­ture [Page 270] real, because the subject is a perma­nent matter. Yea, though the state of a Commonwealth be chang'd into a King­dom, the League will remain, because the body remains the same, though the head being chang'd: and, as we have said a­bove, the Empire which is exercis'd by a King, ceaseth not to be the empire of the people. An exception it will be, if the cause appear to have been proper to that state, as, if free Cities contract a League to maintain their liberty. But, if it be contracted with a King, the League will not presently be esteemed personal: for, as it is rightly said by Pedius and Ulpianus, L. jure gentium sect. pactum. D. de pactis. the person is for the most part inserted in­to the Agreement, not that the Agree­ment may be personal, but to shew with whom 'tis made. But if it be added to the League, that it shall be perpetual, or that it is made for the good of the King­dom, or with himself and his successors (such an addition [...] is usual, saith Libanius in his Oration for Demo­sthenes:) or for a time defined, now it appears plainly to be real. Such, it seems, was the league of the Romans with Phi­lip Livius lib. 42. vide Parut. lib. 5., & 7. King of Maccdon, which when Per­seus his son denyed to concern him, a war followed upon that ground. Moreover, other words, and the matter it self some­times, will afford a conjecture not im­probable. But if the conjectures be equal on both sides, it will remain, that the fa­vourable [Page 271] be accounted real, the odious personal. Leagues made for peace, or for commerce are favourable: those made for war, are not all odious, as some think; but the [...]. defensive have more of favour, the [...]. offensive of burthen. Add hereunto, that in a league for any war, it is presumed, that regard is had to the prudence and piety of him who is treated with, as one who seemed not likely to undertake a war, neither unjustly, nor yet rashly. As to that saying, Societies are Societates: morte finiri. Dec. l. 1. cons. 22. broken off by death, I do not allege it here: for it perteins to private societies, and to the Civil Law. Therefore, whether by right or wrong, the Fidenates Vide Dionys. Hal. lib. 3., La­tins De Appulis & Latinis idem eod. lib. De Turno & Hor­deanio & La­tinis idem lib. 4. Ammianus lib. 26. Persarum Rex manus Armeniis injectabat, eos ad suam diti [...]. nem ex integro vocari vi nimia properans, sed injuste; causando quod post Joviani excessum, cum quo foedus firmaverat & pacem, nibil obstare debeat, quominus ea recupera­ret, qua ante ad majores suos pertinu [...]sse monstrabat. Similia de Justi­niani pactis cum Saracenis vide apud Menundrum Protectorem. Adde quae Helvetii causantur post mortem Henrici 3. apud Thu­anum l. 97. in an 89. Vide & insignem locum apud Camdenum in an. 72. ubi de foedere antiquo Gallorum cum Scotis., Etruscians, Sabins departed from their league upon the death of Romulus, Tullus, Ancus, Priscus, Servius, can­not be rightly judged by us, because the words of the League are not extant. Wher­unto that controversy in Justin is not unlike, Whether Cities which were tri­butary to the Medes, the Empire being changed, had changed their condition. For, it is to be considered, whether in the agreement they had committed them­selves [Page 272] to the trust of the Medes. But [...] Bodin's Lib. 5. c. ult. argument is in no wise to be al­lowed, that leagues do not pass to the successors of Kings, because the vertue of an oath goes not beyond the person. For, the obligation of an oath may bind the person only, and yet the promise it self may oblige the heir. Neither is it true, which he assumes, that leagues depend upon the oath as their firmament, when for the most part there is efficacy enough in the promise it self, to which, for Reli­gion sake, the oath is added. The com­mons of Rome, in the Consulship of P. Valerius, had sworn, they would come together at command of the Consul. L. Quintius Cincinnatus succeeds him being dead; Some Tribunes cavill, as if the people were not bound by their oath. Li­vie's Judgment follows: That neglect of the Gods, which this age is guilty of, was Lib. 3. not yet: nor did every one, by interpre­ting for himself, make his oath and the Laws comply with his affections, but ra­ther accommodated his own manners un­to them.