I. The order of this whole Treatise.

ALL Controversies between such as are not associated under one Civil Law, as between those who never yet entred into any Civil Soci­ety, or that are among themselves of several Nations, whether they are private Subjects, or such as are invested with Soveraign Power, whether Kings, Nobles, or Free people; All such Controversies, I say, are to be referred to the times, either of Peace, or War. But because the end of War is Peace, and that there is no such Contro­versie but may produce War, therefore what differences soever do arise by the occasion of the Rights of War, shall in the first place be exactly discuss'd: That so War it self, being duly prosecuted, may lead us unto Peace, as to its proper end.

II. War defin'd

Being therefore to treat of the Rights of War, it concerns us in the first place to know what that War is, whereof we are to treat, and then, what that Right is that we search for. War (as Cicero defines it) is Certatio per vim, a Debate by force: But custom hath Translated the signification of the word, from the Act it self, to the state and con­dition of those that make War; for as Philo well observes: They only are not Enemies that are actually engaged in Battle whether at Sea, or Land, but they also, that raise Forts, plant Ordnances, or such like Engines of War on their Walls, or Ports, though at present they fight not. Servius upon those words of Virgil, concerning Aeneas, ‘In War and Arms None greater was than He,’ makes this distinction, By War we understand all consultations and Preparations for War: but by Arms only the use or exercise of them. Therefore in another place he concludes, that all that may be reckoned a time of War, wherein either things necessary for fight are preparing, or the fight it self last; so that War may be defined to be the State or Condition of those that contend by force as such: Which general acception of the word comprehends all the kinds of War whereof we are to treat, not excluding that which sometimes happens between private persons as Duels or single Combats, which certain­ly are precedent to those Wars that are publick, and being of the same nature, may well be comprized under the same proper name. Which sense the Original word will very well bear, for from the Old word Duellum is made this new word Bellum, as of Duonus is made Bonus, and of Duis, Bis. Now Duellum signifies a contest between two, in the like sence as we express Peace by Ʋnity, or as the Greeks do War by [...], in respect of the Multitude of people that are engaged in it; as also they sometimes do by the words [...] and [...], in respect of those direful effects that attend it. Now as the Original of the word will justifie this large signification, so will the common use there­of bear it. But if it be objected, that this word is taken generally for that contest by force of Arms, that is publick, I answer, that this argues not that single Combats may not be also so called; For most certain it is that the name of the Genus doth often pecu­liarly adhere unto that of its Species, which is most excellent. As to Justice, I do not admit of it in this definition, because it is the Subject of this whole Treatise to enquire, Whether any War be Just, and what War is so. But that which we seek, must be di­stinguisht from that concerning which we seek.

III. Right, as it relates to A­ction, defined and divided.

Whereas the subject of this whole Treatise is The Right of War, we are in the first place to understand, (what we said just now) whether any War be just? And in the next place, what it is in War that is just? For we understand in this place by the word, Right, that which is just: And that also, rather in the Negative, than in the positive sence, so as we here term that just, which is not unjust. Now that we account unjust which is repugnant to the Nature of a Rational Society: As for example, to rob another to enrich our selves,De off. l. 3. is (as Cicero observes) contrary to Nature, which he thus proves; If this, saith he, were allowed, all Society and Communion between men, would quick­ly be dissolved. So for one man to betray or deceive another is unjust, as Florentinus proves, because it breaks that bond of Alliance, wherein Nature hath linkt together all mankind for mutual defence.De Ira l. 2. c. 32. Which Seneca thus Illustrates: Just as all the members of the body ought to be equally solicitous one for another, because in the preservation of each part, consists the welfare of the whole; so ought all men to forbear each other, because they are born for Society. For it is not possible for any Society long to stand, unless every part thereof be cherished and defended by the whole. Ep. 48. So in another place: That Society is Faithfully and religiously to be preserved, which so Ʋnites us one to another, that we all agree in this, That there is somewhat whereunto all mankind hath a Common Right. But as of Societies, some consist of Persons that are equal, as that of Brothers, of Citizens, of Friends and Allies: and some consist of Persons that are unequal, (and these also vary according to their degrees of Excellency) as that of Parents and Children, of Masters and Servants, of Kings and their Subjects,Numa. God and Man (for such a Society there is, if Philo and Plutarch deceive us not.) Even so things may be said to be just or unjust respectively; for one thing may be just in respect of those that live together being Equals, and another one thing may be just in respect of the persons Governing, and the persons Governed as such; whereof this shall be said to be the Right of Rulers, and that the Right of Equals.

IV. Right as it is a quality divi­ded into facul­ty and fitness.

There is also another signification of the word, Right, which though different from this, doth notwithstanding arise from it, and respects the qualification of the person; in which sence it signifies a moral Quality in any person, sufficient to enable him justly to have or to do something. Now this Right appertains to the Person, though it be sometimes but in relation to the thing he holds, as services for Land held of a chief Lord, and these are called real Rights, comparatively to those that are merely personal not because even these belong not to the person, but because they belong to no other [Page 3] but to him that enjoyes the thing whereunto that service is annexed. This moral Qua­lity, if perfect, we call Faculty; If imperfect, an Aptitude or fitness only: Answerable whereunto in things Natural are, to That, an Act done; to This, a Power to do it.

V. Faculty divi­ded into Power, Domi­nion and Cre­dit.

Which Faculty Civilians call that Right which a man hath of his own; but we hence­forth call it Right properly and strictly taken: Under which are comprehended, First, a Power over our selves, which we call Liberty; Then a Power over others, such as Fa­thers have over their Children, Lords over their slaves: Secondly, Dominion, and that either full and Absolute, or Limited: As that which a Tenant hath in the profits of his Farm, for his Rent; the Right that a man hath to a thing Pawned. And Credits, to which are opposed Debts.

VI. This Right is twofold, either Common or Eminent.

Now this Faculty is also twofold, that is to say, either vulgar, as that which every man hath over his Goods, to dispose of them as he pleaseth; or that which is more eminent, being superiour to that which is vulgar, as that which every Society hath over the per­sons and Estates of all its members, so far as conduceth to the preservation of the whole. Thus doth Regal Power comprehend as well that of a Father, as that of a Master; so that a King, as he is a King, hath a greater Right in the Goods of his Subjects, so far as is ne­cessary for the publick safety, than any private Subject hath in his own. Of this opi­nion was Philo the Jew, Surely both the Silver, and the Gold, This is groun­ded on the Law of Na­ture, which makes that to be just, which is necessary for the preser­vation of Humane Society, which our blessed Saviour takes as granted; and therefore speaking of Taxes, he saith not, Offer or give as of a thing Arbitrary, which was in our Power either to do or not to do: But render, as of a thing that we owe or are trusted with for the benefit of another, which we are bound to restore whensoever we are thereunto required. And such indeed is that portion of every mans Goods, which is necessary for the defence of the Common-wealth, not ours, but Caesars. St. Paul calls these Debts, which being joyned with the word, Render, makes it as clear as the Sun, that our Taxes are not Donatives, but just Debts: Nay they are the Greatest of Debts, due upon the strictest account, and therefore justly to be preferred before all other Debts, and in the first place to be discharged; And good reason, for the Non-payment of this Debt, may occasion the loss of the whole Estate, not private only, but publick. and whatsoever else is held dear and precious to Subjects, are more in the Power of those that govern, than of those that possess them: Of the same mind also was Pliny, as appears by his Panegyrick, where speak­ing of a King he saith: Cujus est quicquid est omnium, what all men have, is his. And again: Is there any thing that Caesar can see, that is not his? that is, whensoever the Commonwealth doth necessarily require it.

VII. Aptness what it is.

That which before I called Aptitude or Fitness, Aristotle expresseth by the word, Worthiness, Michael Ephesius by another word implying Fitness or convenience. As for example, If a Question should be put To whom in duty we stand most obliged? The Answer, De offic. l. 1. saith Cicero, should be, to our Prince, to our Country, to our Parents; Because from them we receive the greatest Blessings we enjoy; next to those, we stand engaged to our Children, to whole Families, whose dependence is upon us alone: Then to our nearest relations, who for the most part do claim a share in our fortunes. Wherefore all these we are bound to relieve with all things necessary for life, but especially those above named: But to Eat, to Drink, See Book 2. ch. 7. s. 9, 10. Sen. de Ira lib. 4. c. 2. to Converse with, to exhort, to advise, to comfort and sometimes to reprove, these are the proper Offices of Friendship. So being to make our will, we consider who hath best deserved of us, Quaerimus dignissimos quibus nostra tradamus, we seek out such as are most worthy to whom to bequeath our Estates.

VIII. Of Expletive and Attribu­tive Justice.

Expletive Justice, which hath now gotten the name of Justice strictly taken, hath a re­spect to that which is our own, which Justice, Aristotle by too narrow and pincht a word, calls Commutative Justice; For that he that is possest of what is mine, should restore it to me, is not by Commutation, and yet it belongs to this Branch of Justice: [...]. And therefore in another place he finds out a more apt and pertinent word to express it by, calling it [...], A Justice that makes the ballance even, or that repairs and restores to the full. Attributive Justice, which is called by Aristotle, [...] Distributive Ju­stice, hath a respect to aptness, worthiness or convenience, and is usually the Concomitant- of such Vertues as are beneficial to others, as mercy, liberality, and State Providence But whereas the same Aristotle saith, that Expletive or Commutative Justice hath respect unto a simple and Arithmetical proportion; but Atributive, to a Comparative, which he calls a Geometrical proportion, as being the only proportion owned by Mathematicians; and which Cassiodore calls the comparing of mens habits or dispositions, and not unfit­ly by Homer described in this verse, ‘Things best to best, he gave, mean things to mean.’ This may hold in some cases, but not in all; neither doth Expletive Justice of it self differ from Attributive in such use of Proportions, but in the matter whereabout it is Conver­sant, as is before shewed. Therefore as in all Elections made by Societies, if there be several Competitors the Choice is made by a Comparative Proportion, for Datur [Page 4] digniori; the worthiest is chosen: so if there be no Competitor, and one only be found wor­thy of such a publick office, it is Attributed to him by a simple proportion. Neither is that more true which some affirm, that Attributive Justice is Conversant only about things Common, but Expletive about things private, that is, appertaining to particular men. For on the contrary, If a man shall go about to bequeath his Estate by Will, he doth it by Attributive Justice, dispensing it according to the worthiness of the persons that are to receive it: And a City which renders out of that which is Common, what some of her Citiziens have bestowed in publick, doth it by the Rule of Expletive Justice, not regarding the worthiness of the persons, but the bare Right of him that ought to receive it. This young Cyrus learnt of his Tutor in this case: There were two boyes that had two Coats,Aulus Gill. both of different Dimensions, the bigger Boy had the lesser Coat, and the lesser Boy had the bigger Coat, which the bigger Boy took from him, being fit for himself, leaving him the lesser Coat, which also was fit for him; whereof Cyrus being made Judge,Cyrus his mis­take. and regarding more what was fit and convenient, than what was just and Right; adjudged the greater Coat to the bigger Boy, and the little Coat to the lesser Boy: But his Tutor told him, That he had done amiss: For had he been to judge what was fittest, he had done well: But being to judge, whose each Coat was, he was to regard who had the best right to it, he that by force took the great Coat away, or be that made it, Exod. 23.3. Levit. 19.15. or bought it. This is it that Moses in his Law forbids, saying: Thou shalt not regard the Poor in judgment, but shalt judge thy Neighbour with Righteousness. Which can­not be done, unless we do (as Philo adviseth) A personis litig antibus res abstrahere, Consider the matter, without regarding the parties contending.

IX. Right as ta­ken for a rule or Law de­fined.

There is also a Third signification of the word Jus, or Right, whch makes it Equiva­lent to the word, Lex, that is Law, when taken in its largest sense; that is to say, as it is a rule to Moral Actions, obliging us to do that which is right: In which sense it was that Horace took it where he saith, ‘For fear of wrong, strict Laws invented were.’ So in another place: Jura neget sibi data; ‘He may deny that Laws for him were made.’ Which the Scholiast thus expounds: He was a man that despised all Laws. In which De­finition we say first that it must oblige, and herein it differs from Counsels and other prescriptions, which though honest, yet fall not under this Notion of Law. And as for permission, to speak properly, it is not the Action of Law, but the denyal or Restri­ction of that Action, unless it be, as it obligeth another not to give him to whom such permission is granted, any lett or impediment. Besides, it must oblige us to that which is Right, and not simply to what is just, because Right in this sence, doth not be­long to Justice alone, (such I mean, as we have here­tofore explained) but unto the matter of other Ver­tues:For many things may be just according to the letter of the Law, which notwithstanding are not Right. Neither is it possible that any Lawgiver should fore­see all the defects of his own Law: So that that which being a greeable to the Law strictly taken, may s [...]em just, is not so safe a Rule to walk by, as that which is just in this larger sense, that is, Righteous and honest. An example whereof we have in that Law made by Zeleucus, who ordained a punishment to be in­flicted upon him who contrary to the advice of his Physician presumed to drink Wine. And therefore that Right which this Rule guides us unto, must needs be of a larger signification than that which is simply just. Of this Right so taken, the best partition is that of Aristotle's, into that which is Natural, and that which is Voluntary, or as he there calls it Legitimate; [...]. the word Law being taken in the stricter sense; which difference is acknow­ledged both by the Hebrews, and the Grecians, who when they would speak properly, distinguish them by their proper names.

X. This Law of nature defi­ned & distin­guisht from that which is not proper­ly so.

That which we call natural Right, or the Law of Nature, is the dictate of Right reason, shewing the Moral Malignity, or the Moral Necessity that there is in any Act, by either the Repugnancy, or Congruity, it hath to Rational Nature it self, and con­sequently, that such an Act is either commanded or forbidden by God, who is the very Author of Nature. Or asTit. omnem vi­rum bonum esse liberum. Philo describes it: Right reason is a Law that cannot lie, it is not Mortal, nor given by any thing that is Mortal, it is not liveless, nor written in Paper, or insculpt on Pillars that are liveless, but it is an immutable and immortal Law, being engraven by an immortal hand, on a mind that is immortal. Cicero, asLib. 6. c. 8. Lactantius quotes him, gives this excellent description of it: Right reason is a perfect Law that will not lie, it is most agreeable to humane Nature, and Ʋniversally diffused throughout all mankind: It is in­corruptible, immortal, which summons us to our duty by commanding it, and drives us from all fraud by forbidding it; neither are its Injunctions or prohibitions in vain to the Righteous: [Page 5] though with the wicked they prevail not. To this Law nothing must be added, nor any part thereof detracted; and wholly to abrogate it, is impossible. It is not in the power either of the Senate or the people to absolve us from our obedience to this Law, neither need we to seek af­ter any other Expositor than the Law it self: Neither is it one Law at Athens, and another at Rome, one now, and another hereafter: But this one Law, being both Eternal and Im­mutable, shall bind all Nations and in all Ages: As there will ever be one Common Lord and Governour of all, which is God. He is the sole inventour, judge and giver of this Law, which he that refuseth to obey, must fly from (and so unman) himself, and although he may fly from, and haply avoid all other (which are thought) punishments; yet for the wil­ful contempt of this only, he shall be severely punished. Now the Acts whereupon Right reason gives her Dictates, are such as are either good or evil, lawful or unlawful, sim­ply and of themselves, and therefore must necessarily be understood to be either com­manded or forbidden by God himself: And herein, the Law of Nature is different not from humane Laws only, but from the Voluntary Divine, for they do not com­mand or forbid such things as are of themselves, and in their own Nature either due or unlawful; But by commanding them, they make them the one, and by forbidding them, the other. But for our better understanding of this Law of Nature, we must observe, That some things are said to belong unto the Law of Nature, not properly, or immediately, but (as the Schoolmen love to speak) by way of reduction, that is,Some things belong to the Law of Na­ture by way of Reduction. for as much as the Law of Nature doth not prohibit them: As some things are said to be just, because they have nothing in them of injustice. And somethings are said to be lawful, which the Laws do neither prohibit nor punish. And sometimes by the abuse of the word, those things which our Reason approves to be honest, or at least, are so Comparatively to those that are opposed unto them, though they are not enjoyned us, yet are said to be due by this Natural Law: Moreover we must observe, that this Na­tural Law doth not determine of such things only, as have no dependence upon Mans will, but of many things also which the Common consent of mankind hath already moulded (as it were) into a Law. Thus was Dominion, as now in use, by Common con­sent, introduced as by a Law: But being introduced, this very Law of Nature doth in­struct us, that to take away from any man that which is his own without his consent, is Impious; And from hence it is that Paulus the Lawyer concludes Theft to be pro­hibited by the Law of Nature; and Ʋ [...]pian, that it is dishonest; And Julian tells us, That after that which concerns the Worship of God, there is a Second Law in its own Nature holy, Julian. and of Divine Extraction, that enjoyns us at all times, and in all places, to abstain from Theft and Rapine; and that forbids us either in word, in deed, or in our most retired thoughts to mix or confound each others Properties.. De off. l. 3. For as Cicero out of Chrysippus well observes: For any man to gain to himself what is necessary for his own lively hood, is not unjust; but to take it away by force from any other, is not Right. Euripides also condemns this as hateful to God himself:

The Law of Nature is so Immutable, that God himself cannot alter it;God himself cannot alter the Law of Nature. for though the power of God be Immense, yet may somethings be said, whereunto this great power doth not extend it self, because what are so said, are said only, but have no sense which can express the thing, but they must contradict themselves. As therefore that twice two should not be four, God himself cannot effect; so neither can he, that what is intrinse­cally evil, should not be evil. For as the being of things after they are, and as they are, depends not upon any other; so do the proprieties that necessarily follow that being: But such is the Malignity of some acts, compared with Nature as it is guided by Right reason. And therefore doth God himself suffer himself to be judged of ac­cording to this Rule, as appears by that of Abraham to God:Gen. 18.25. Shall not the Judge of all the world do Right? Such a contradiction it is to say, that he that is the judge of the whole [Page 6] Earth should not do Right, that though it may be spoken, yet do the words though spoken bear no sense, but rather imply a manifest contradiction. The like we may find in other places of the holy Scriptures;Es. 5.3. Ez. 18.25. [...]er. 2.19. Mich. 6.2. Rom. 2.6, 3, 6. it sometimes notwithwstanding so falls out, that in these acts concerning which the Law of Nature hath determined some­thing, there is some shew or appearance of change, which may easily deceive the un­wary, whereas indeed the change is not in that Law which (as I have already said) is immutable, but in the things about which that Law is conversant; As for example, If he to whom I owe a just Debt, shall freely discharge me of it, I am not bound to pay it; not that the Law of Nature doth cease to command me to pay what I owe; but because that which I did owe, ceaseth to be my Debt being so discharged. For as Arrianus in Epictetus rightly argues, To make a just Debt it is not enough, that the money was lent, but it is required that the Obligation remains uncancelled. So when God commands any man to be put to death, or his Goods to be taken from him, Murther and Theft do not thereby become lawful, for these very words do imply sin; and no sin can be lawful. But those acts will not amount to Murther or Theft, which are done by the express command of him who is the Soveraign Lord both of our Lives and Fortunes. Lastly there are somethings justifiable by the Law of Nature, not sim­ply, but so long as the condition of affairs stand thus: So till dominion was intro­duced the use of things was Naturally common; so before Laws and Courts of Judica­ture were established, by the Law of Nature, it was Lawful to recover by force what was our own, but not since.

XI. Natural in­stinct.

That distinction which we may read of in the books of the Roman Laws, is, namely that this immutable Law is either that which is common to men with beasts, which they call the Law of Nature in the stricter sense; and that which is peculiar unto men only which they sometimes call the Law of Nations, is of very little use. For nothing is properly capable of a Law, but that Nature that is capable of making use of General precepts, which was well observed by Hesiod, when he said:

We say not of Horses and Lyons, Off. lib. 1. Vita. Cat. M. saith Cicero, that they are just; neither as Plutarch ob­serves, do we by Nature make use of Law or justice against any other Creatures but man. Among all other Creatures not endued with reason, saith Lactantius, Nature is permitted to be her own Carver, Lib. 5. Nocent aliis, ut sibi prosint; They destroy others to preserve themselves: And in so doing they are ignorant, that they do amiss. But man who hath a faculty to discern good from evil, wisely abstains from hurting others, though thereby he sometimes incommodate himself. Lib. 6. Polybius having declared upon what grounds men at first entred into Society, adds, That when the rest saw some men abusing their own Parents, and others be­having themselves injuriously towards their Benefactors; they could not chuse but grieve at it, whereof he gives this Reason: For mankind, saith he, being endued with understand­ing and reason above all other Creatures, it is not credible, that they should behold acts so abhorrent from Nature without expressing some sign of discontent. So likewise Chrysostom, This we learn from Nature herself, [...]e statuis. 13. that when we see one man abusing another, we cannot but sympathize with the injured Person, and swell with indignation against the injurer: although those injuries do not the least touch us. And the greater the wrong is, the greater is our in­dignation against him that did it. No man is equally incensed against him that cuts a purse only, as he is against him that commits a Murther. But if at any time Justice be attributed to Brute Beasts, it is improperly, and only by reason of some Analogy or Resemblance that it hath to Humane Justice:Pliny l. 8. c. 5. As was that of the 30 Elephants recorded by Pliny, who could not by any means be provoked to be instrumental to the Cruelty of King Bacchus in worrying 30 other Elephants which he had bound to so many Trees on purpose to have them destroyed.Lib. 10. And that also of the Aspe, recorded by the same Pliny, who having been sed daily at a mans table, killed one of her own young ones for killing the mans son, by whom he had been so fed; and would never afterwards come into the same house. These are said to be just acts, not properly, but only as they have some faint resem­blance of Justice, and some light impressions of Reason.De ira l. 5. c. 3. Seneca therefore denies that Dumb Beasts partake any thing of Humane passions; yet he acknowledgeth that they have somewhat that is like unto them: They cannot properly be said to be angry, yet have they some violent impulses like unto anger. Non vitia sed vitiorum simulachra; they have no vices, but somewhat like unto Humane vices, as Origen pleads against Celsus. But whether the act it self whereupon the Law of Nature hath decreed, be common to us with other living creatures, as the education of our Issue, &c. or proper unto us only, as that God should be Worshipped; doth nothing appertain to the very Nature of Right.

XII. The Law of Nature how proved.

But that any thing may be due by the Law of Nature, is usually proved two waies, either by Arguments drawn à priori, or by such as are drawn à posteriori: Whereof the former sort are more convincing; the latter more vulgar and plausible: the proof by the former way is by shewing the necessary convenience or repugnancy that there is in any thing, with rational and Social Nature; for whatsoever can be proved to be ne­cessary to the conservation of Humane Nature, and Humane society, must needs be insti­tuted as a Law by the author of Nature, who is the God of order. That proof which is à postoriori is, when we can though not demonstratively, yet with very great probability, col­lect and conclude that to be a Dictate of the Law of Nature, which is unanimously believed to be so by all, or at least, by the most Civilized of all Nations. For if the effect be Universal the cause must needs be so to: But of so Universal a perswasion there can be no other cause probabily given, than that sense it self which is called common: That of Hesiod hath been highly celebrated by many;

Quae communiter ita videntur fida sunt; that which to most men seems true, may be believed, saith Heraclitus. For we can have no stronger proof, or evidence of the truth of any thing that cannot be demonstrated, than the general consent of the wisest in all Nations that it is so. This Aristotle took to be of all others, the most powerful and convincing proof: Si in id quod dicimus omnes consentiunt; If to what we say all men give their consents. Of the same mind was Cicero, Whatsoever all Nations do grant must, needs be the voice of Nature: 1 Tusc. Ep. 117. Nic. l. 10. 11. So Seneca also, What appears the same to all men, must undoubtedly be true. He that derogates from this faith can never expect to be believed himself, saith Aristotle: so likewise Tertulli­an, Quod apud multos unum invenitur, non est erratum, sed traditum; What is approved of by the most, is not error but Tradition. I said before that that must needs be a Dictate of Nature that was acknowledged to be so by all, or at least, by the most Civilized Nati­ons, and deservedly; for some people are so fierce and savage that they have hardly any hu­manity among them, as Prophyrie rightly observed. Now no man of sound judgment surely, will impute this as a general reproach to all mankind: Surely this Law of Nature is immu­table, and the same with all mankind that are of sound and perfect mind: Andr. Rhod. But if it appear other­wise to such are of distempered and perverse spirits, or have been so corrupted through an evil Education, that they have lost even common sense, and all natural Notions, it doth not in the least weaken the authority of this Law, no more than it would evince, That Honey is not sweet, because it doth not seem so to such as are sick, or of distempered Pallates. Not much discrepant from this is that of Plutarch in the life of Pompey, There neither is, nor ever was, any man, by Nature wild and unsociable; many have indeed been made so by accustoming them­selves to live like Beasts, beyond the bounds of Natures Laws; and yet even these, by changing their manner of life, or the place of their abode, are easily reduced to become gentle, and sociable. And therefore Aristotle in the description that he gives of man, makes this as it were his proper passion, That he is by Nature a Creature mild and Tractable; Top. l. 5. c. 3. Especially if we judge of him, according to that general rule, that the same Aristotle laies down, Quid naturale sit, spectandum in his quae bene secundum naturam se habent, non in depravatis; Pol. l. 1. 5. What is the true nature of any thing, is best known by those that are perfect in their own kind, and not by those that are depraved and corrupted. For if we steer our judgments by this Rule, we cannot but acknowledge man to be in his own nature, the most meek, gentle, and peaceable creature of all others: as having nothing, by nature given him, whereby either to offend others or to defend himself: Besides as Nature hath made him the gentlest of all other living Creatures; So (as Philo observes) hath she made him sociable, nay greedy of Society, and hath also fitted him thereunto by giving him that excellent Ornament of speech, where­with his Passions, though never so fierce and raging, are suddenly, as if by some spell or incan­tation, becalmed.

XIII. Voluntary Laws.

Another species of jus, as taken for a Law, there is, which we call voluntary, because it is derived from the will; which is either Divine or humane.

XIV. Humane Laws divided.

We shall begin with that which is humane; because it is more generally known, and this is either Civil, or that which is more extended, or that which is more con­tracted than Civil. The Civil Law is that which ariseth from the Civil power. The Civil power is that which governs any City: Now a City is a compleat company of free-men, associated for the defence of their own Rights, and for their common pro­fit. That Law that is of lesser extent, and ariseth not from the Civil Power, though subject unto it, is various, comprehending under it that of a Father over his Children, that of a Master over his Servants, and the like. That Law which is more extensive than that which is Civil, is that of Nations, which derives its authority from the joynt consent of all, or, at least, of many Nations: I say of many, because there is [Page 8] hardly any Law besides that of Nature (which also is usually called the Law of Nations) that is common to all Nations; yea oft-times that which is accounted the Law of Nations in one part of the world, in another is not, as we shall shew hereafter, when we treat of Captivity and Postliminy. Now the Law of Nations is proved in the same manner as the unwritten Civil Law is, namely by continual use, and the testimony of men skil­ful in the Laws; and therefore Dio Chrysostome calls it the daughter of time and experi­ence, and to this purpose are the Annals of former ages of singular use.

XV. The Divine voluntary Law divided.

The divine voluntary Law is that which is warranted by the express will of God, (as may be understood by the very word it self) whereby it is differenced from the naturall Law, which in some sense may be termed Divine also. And here that which was said by Anaxarchus in Plutarch (though somewhat confusedly) may take place, namely, That God doth not will things because they are just; but things are therefore just, that is, rightly due, because he wi [...]s them. Now this Law was given by God ei­ther to all mankind, or to one Nation; to all mankind we find that God gave Laws th [...]i [...]e.That this vo­luntary Di­vine Law was as obliging be­fore the wri­ting of it in [...]ooks or Tables, as it was or is since, is clear; for first, if the obliging power were only from the time when it was writ­ten by Moses, they that lived before Moses were no waies obliged by it, because till then it was not written. Secondly, then the obligation must needs extend it self to all the parts of the Law so written, and so to every circumstance of the Ju­daical Sabbath, as well as to the acknowledgement of the only true God. Neither is it sufficient to say, it was written in the times of Adam and Noah, it being uncertain unto us now, whether there were so Ancient a Record or not, much more, * whether that which was written, were as the Tables of the Law, written by the finger of God. * Dr. Hammond. The Six Laws given by God to Adam and Noah, as First, that against strange and false worship. Secondly that of blessing the name of God, (that is, of adoring, invocating and praising God) Thirdly, that of judgment, (that is) of erecting of Magistrates and requiring administration of Justice. Fourthly, That of disclosing Nakedness (i. e.) setting bounds to lust and prohibiting Marriages, within such degrees. Fifthly, That of shedding blood against Homicides. And Sixthly, That against Theft and Rapine, and of doing to all as they would be done unto, are no where recorded in holy Writ, yet were they as obliging to the J [...]ws that knew them, as any of the written Laws of Moses; we shall find them toucht at Act. 15.20. [...]ut so surely, that had it not been for those writings of the Jews that were never within their Canons, nor in ours; we of these times had never known to what that reference belonged. And as all the Laws that were given to Adam, Noah and the rest of the Patriarchs, although not committed to writing, nor traduced to us, yet lost nothing of their obliging power to them, to whom they were given: so in the times of the new Law, although Christ revealed much of his Fathers will in Sermons, and other occasional discourses, very few whereof are written, and those that are, were not so written, until many years after his Resurrection; yet will no man say, that because they were not left written, therefore they did not oblige his Auditors. First, Immediately after the Creation of man. Secondly, in the Restauration of mankind after the Floud; and Thirdly, in that more perfect reparation by Christ. T [...]ese three Laws do doubtless oblige all mankind, as soon as, and as far forth, as men arrive at the knowledge of them.

XVI. The Law giv­en to the Jews did not oblige stran­gers.

Of all the Nations of the Earth there was but one to whom God vouchsafed to give Laws peculiar to themselves, which was that of the Jews: What Nation, saith Moses, so great to whom God hath given Statutes and judgements, so righteous, as this whole Law? Deut. 4.7. So likwise Davia, The Lord hath shewed his word unto Jacob, his Statutes and ordinances unto Israel: Non ita fecit genti ulli; He hath not done so to any Nation, nei­ther have the Heathen knowledge of his Laws. Psalm 147. Doubtless then those Jews (and among them Tryphon himself in his disceptations against Justine) do grosly err, who hold, That even Foreigners, if they would be saved, must submit to the yoke of the Mosaical Law. For that Law binds none but those to whom it was given, and who these are, the Preface to the Law it self will plainly declare; Audi Israel, Hear O Israel, saith the Text: And every where we read, that the Covenant was made with them, and that they were chosen to be the peculiar people of God; which Maimonides acknow­ledgeth to be true, and proves it out of Deut. 33.4. But even amongst the Jews, there always lived some Foreigners being holy men, and such as feared God, as the Syrophoenician Woman, Mat. 15.22. Cornelius, Acts 10.2. The Grecians men­tioned Acts 18.4. whom they called the pious among the Gentiles; such as are term­ed strangers, Lev. 22.25. and a sojourner, Lev. 25.47. whom the Chaldee Para­phrast calls an inhabitant that is uncircumcised, whereof we may read, Exod. 12.45. who was distinguished from a Proselyte; who, though a Foreigner, yet was circumcised, as appears b [...] comparing this place with that of Numb. 9.14. These uncircumcised Sojourners Maimonides admits may be partakers of the blessings of the life to come. St. Chrysostome upon the second to the Romans, Rom. 2.9, 10. where St Paul mentions the Jew, and Gentile, wr [...]tes thus: What Jew, and what Gentile doth St. Paul here mean? sure­ly those, saith he, that lived before Christ, as Job, the Ninevites, Melchisedeck, Cor­nelius, &c. And what Graecians doth he discourse of? Surely not such as were Idolaters, but such as worshipped God according to the Law of Nature, who setting aside the Jewish Cere­monies, religiously observed all things that appertained to an holy life. And again, The Graecian he calls, not him that worshipped Idols, but him that was pious and devout, though be submitted not to the Jewish Rites. And thus likewise doth he expound that of St. Paul: To him that is without Law, as being free from the Law. And in another place, [Page 9] A Greek he calls not him, that was given to Idols, but him that invoked the true God, Orat. 2. de statuis. and yet observed not the Jewish Ceremonies, as their Sabbaths, their Circumcision, their ablutions and the like; but yet endeavoured to steer the whole course of his life, according to the Rules of wisdom and true piety. Now these, as the Hebrew Doctors themselves testify, were bound to live in conformity to the Laws given to Adam and Noah, ab­staining from Idols and Blood, and from other things hereafter exprest, but not to the Laws peculiar to the Jews; and therefore, whereas it was not lawful for the Jews to eat the flesh of any thing that dyed of it self, yet it was lawful for the stranger living among them so to do, Deut. 14.21. unless it were to some particular Laws wherein it was expresly provided that as well the stranger as the home born was bound to observe them. For we read that it was lawful to the stranger, that never submitted to the Mosaical Law, to worship God even in the Temple at Jerusalem; yet so, that he stood in a particular place by himself, separate from that of the Hebrews, as you may read 1 Kings 8.41. Jo. 12.20. Act. 8.27. Neither did Elisha enjoin Naaman, nor Jonas the Ninevites, nor Daniel Nebuchadnezzar, nor the other Prophets perswade the Syrians, Moabites, or Aegyptians, unto whom they wrote, that there was any necessity at all for them to submit to the yoke of the Jewish Law. And what I say here of the whole Law is true also of Circumcision, which was as it were, the intro­duction unto it, with this only difference, That to the whole Law of Moses, the Israelites only were bound, but to that of Circumcision all the posterity of Abraham: And from hence it was, that the Idumeans being the off-spring of Esau, Ismael, or Cetura, were compelled by the Israelites to be circumcised as both the Jewish, and Grecian Histories inform us. Besides of all other Nations,Rom. 2.14. that of St. Paul holds true, Seeing that the Gentiles who have not the Law, do by Nature, the things of the Law; (that is, by their own manners and Customs, flowing from the original fountain of rea­son) (unless any man had rather referr the word, Nature, to the words foregoing, thereby opposing the Gentiles to the Jews, who as soon as they were born had their Law instilled into them), these having not the Law, are a Law unto themselves, as shew­ing the work of the Law written in their hearts, their thoughts and Consciences mutually accusing or excusing themselves. And that also in the 26th verse of the same Chapter, If the uncircumcision keep the Law, shall not his uncircumcision be accounted for Circumcision. Thus doth Chrysostome expound that place of St. Paul before cited, The Gentiles by Na­ture, that is, by the very Dictates of Right reason: And presently after in this, saith he, are they to be admired, That they stood in no need of the Law to guide them. And that instead thereof, they were guided only by the use of reason and the light of their own Consciences. Thus also doth Tertullian argue against the Jews of his age; Long, saith he, before Moses wrote the Law in the Tables of stone, there was (as I will justifie) a Law naturally understood and observed by the Patriarchs. Ant. lib. 20. c. 2. And therefore Ananias the Jew in Josephus did rightly inform Izates Adiabenus, That God might be duly worshipped and well pleased with us, Although we were not circumcised. And Triphon himself grants this to Justin, That there was some hopes left him of a better condition, though he did persist in the way of his own Philosophy. Now the reasons why so many strangers among the Jews were circum­cised, and thereby obliged to keep the Law, (as St. Paul expounds it) were,The reason why strangers were circum­cised. Gal. 5.3. partly that they might partake of the priviledges of the Jewish Commonwealth, for Prose­lytes enjoyed the same Rights with the Israelites, as may be gathered out of Numb. 15. and is plainly asserted Exod. 12.27. And partly, that thereby they might be made capable of those Promises which were not common to all Nations, but peculiar to the Jews only: Although I cannot deny but that there grew up afterwards an erroneous opini­on, affirming that without the pale of the Jewish Church there could be no Salvation. From hence then we may collect; that we Gentiles stand obliged to no part of the Mosaical Law, as a Law properly so called, because all obligation beyond that which ariseth from the Law of Nature, is derived from the will of the Lawgiver. But that it was the will of God, that any other Nation besides the Jews should be bound by that Law, cannot be made out by any solid arguments; we need not therefore, as to our selves, prove the abrogation of that Law, because it cannot be said to be abrogated as to them, whom it never bound: yea even to the Jews themselves the obliging power was abo­lished, as to the Ceremonial Law, as soon as the Evangelical Law began to be promulgated; which was plainly revealed to St. Peter, Acts 10.15.Acts 10.15. And as to the rest, after that people ceased to be a people by the destruction of their City, and that general desolation that succeeded, without any hopes of restitution; but we who are strangers are not freed from that Law, by the advent of Christ, but by Christ we who before had nothing but a faint and obscure hope, placed only in the goodness of God, are now strengthened by a clear and firm Covenant, assuring us that we also may grow up together with the Jews, (being the sons of the Patriarchs) into one Church, the Judaical Law, (which was that Partition-wall that kept us asunder) being now taken away, as St Paul testifies to the Ephesians. Eph. 2.14.

XVII. What Christi­ans may learn from the Mo­saical Law.

Since the Mosaical Law cannot directly oblige us (as hath been already proved) let us now see of what other use it will be to us, as well in this case of War, as in the li [...]e doubtful cases; the knowledge of this being very necessary for the clearing of diverse cases: For in the first place, from hence we may be assured, that what was heretofore commanded in that Law, is not repugnant to the Law of Nature. For since the Law of Nature is (as I have already said) perpetual, and immutable, no­thing can be commanded us by God contrary to this Law, because God can never be unjust.Psal. 19.8. Rom. 7.12. Besides the Law of Moses is (as the Psalmist speaks) pure and right, and as the Apostle saith, Holy just and good; which places are to be understood of the pre­cepts of the Law only. But as to the permissions of the Law we must speak of them more distinctly: Now legal permission (for that which respects the bare fact and signifies the removal of impediments only, I shall not here meddle with) is either full and perfect, which gives us a right to do somethings altogether lawfully; or less full and imperfect, which gives us only an impunity with men, and a Right that no man shall give us any lawful lett, or impediment in the doing of it. Concerning the former of these, the same may be said as is of positive precepts, namely, That what the Law thus permits, cannot be contrary to the Law of Nature, but of what is per­mitted in the latter sense,Vid. Chrys [...]t. ad 7 ad Rom. jaxta finem. the case may be otherwise: but this collection takes place very rar [...]ly. Because where the words permitting are ambiguous, it is much more convenient for us to judge of whether of these two Permissions, it is to be understood by the Law of Nature,Christian Princes may frame their Laws accord­ing to those of Moses, unless in three cases. than by arguing from the manner of the permission, to proceed to judge of the Law of Nature: In the next place, Soveraign Princes, being Christi­ans, may from hence learn, to form their Laws according to those given by Moses; unless it appear that those Laws were such as did wholly relate either to the coming of Christ, or to the Evangelical Law not then revealed; or that such Laws are contra­ry to what Christ did, either in general, or particularly, command. For excepting these three cases, no other can be imagined, why what Moses commanded shall now be unlawful. Again we may hence learn, that whatsoever was enjoyned by Moses, which may serve to the improvement of those vertues which Christ exacted from his Disciples, ought now to be as strictly (if not more) observed by us than hereto­fore it was by them: The reason whereof is this, because what vertues soever Christ requires of us, as humility, patience, love, &c. are to be performed in an higher degree, than they were under the state of the Jewish Law: And not without good reason, because of those Celestial promises that are held forth unto us in the Gospel, which are more clear than under the Law.De Pudicitia. Our Christian liberty, saith Tertullian, is no way injurious unto innocency, for the whole Law as to piety, truth, constancy, chastity, justice, De Virginitate 94. On the first of St. Mat. mercy, benevolence, and modesty, stands yet unrepealed. Nay, a larger proportion of these (saith Chrysostome) is expected from us, because the graces of the spirit are more plentifully poured down upon us, than they were upon them. Athanasius also tells us, That Christ makes the precepts of the Law to be of a larger extent than Moses did: For Moses said only Thou shalt not kill; but Christ saith, Thou shalt not be angry unadvisedly: Moses said, Thou shalt not commit Adultery; but Christ saith, Thou shalt not look to lust after a woman. Heb. 7.19.8.4. Rom. 1 [...].5. Gal. 3 25. And therefore the Old Law in comparison to the New is said to be weak, and not without blemish. And Christ is said to be the end of the Law. But the Law, our School Mistriss, or our guide to lead us unto Christ, Gal. 3.25. So the Law of the Sab­bath, and that of Tithes, do oblige us Christians, not to yield a lesser proportion of time for the worship of God, than a seventh day, nor a lesser proportion of the fruits of the Earth for the Priests Alimony, and other the like sacred uses, than the tenth part.

I. The Law of Nature is not against it.

HAving thus taken a view of the springs from whence all Rights flow, let us now begin with the most general Question, Whether any War be just, or whether it be lawful at any time to make War? But this very question with others that follow are to be dscust in the first place by the Law of Nature. Cicero in several places very learnedly proves, out of the books of some Stoicks, That there are some principles instill'd into us by Nature her helf, as soon as we are born; as to love our selves, and to hold nothing dearer unto us, than our selves; and in order to the conservation of that being, that she hath given us, to love and rejoyce in those things which conduce to the safety of the whole body, and of every member thereof: and to abhor those things that tend to its destruction. Hence it comes, that there is no man but being left to his own choice, had rather that all his members should be proportionable and entire, than by use broken or crooked. Therefore our first duty (according to Natures instinct) is to desire those things most, that are most agreeable to our own Nature, and to avoid those that are destructive unto it. But these things thus known, and reason beginning to sprout forth from her latent seeds, then our second duty is to follow such things as are agreeable to reason it self, which is ever more to be preferred before those that are convenient to the body; and consequently to embrace those things that accord with justice and honesty, rather than those whereunto we are led by sense and appetite; because the Principles of our Nature do chiefly commend us to right reason, as to our best guide and protectrix. For as Nature in all other things never produceth her best and choicest, fruits until she arrives at maturity; Right reason is Natures best guide. Sen. Ep. 124. Ep. 76.121.128. so neither doth humane nature her self produce her best ope­rations, until reason grows up to perfection. And therefore should Reason it self be much dearer unto us, than those things whereby we arrive unto it. Now these things being undeniably true, and without any farther demonstration by all men of sound judgment granted; it follows that in examining the Law of Nature, we find out, what is agree­able to those beginnings or first principles of Nature: and then that we proceed to that, which though in order of time later, yet is much more worthy to be followed; and that not as accepted only, if it may be granted; but as that, which by all means is to be required. Moreover that which we call, honest, according to the diversity of the matter, is sometimes taken strictly,Honesty con­sidered two waies strictly, as in a point, or largely. For whatsoever may be com­mendably done, and yet may be blamlesly un­done. so as to consist (as I may say) in a very point, from which if a man deviate on either side, he falls into vice; and some times largely, for that which may be commendably done, and yet blamelesly either left undone, or done otherwise. Now concerning things honest in this latter sense, are all Laws, both divine and humane, conversant, making those things due Debts, which of themselves are commendable only. Above, when we treated of the Law of Nature, it was questioned whether any thing might be done, not unjustly: But that we under­stood to be unjust, which had a necessary repugnancy to rational and social Nature. Now amongst the first principles of Nature we do not find any thing repugnant to War; nay all things seem highly to favour it, for both the ends of War (being the conservation both of our lives and Limbs, and the acquiring or retaining of what doth necessarily con­duce thereunto) are most agreeable to Natural instinct. And to do this by force, if necessity require it, is a like natural; for why else hath nature given unto every Crea­ture strength, to help and to defend it self? All sorts of Annimals, saith Xenophon, are ex­pert in some kind of War, having no other instructer than Nature.

So likewise Horace:

But Lucretius yet more fully:

To the like purpose is that of Martial: ‘The Calfe with unhorn'd brows to fight prepares.’

De non esu. Animal. Every living creature, saith Porphyry, is taught by Nature wherein its strength, and where­in in its weakness lies: and accordingly to expose the one; to defend the other: the Libard makes use of his teeth, the Lyon of his claws and teeth; the Horse defends himself with his Hoofes, and the Oxe with his Horns. Wherewith accords that of Galen, We see every living Creature making use of that part for its own defence, wherein it conceives it self strongest; the young Colt will kick with his Hoofs before they be hardened; and the Calfe threaten with its head, De usu partium. though it have no Horns. And in his book of the use of the members, he tells us, That man is a creature, fitted by Nature either for War, or peace; for although he be born unarmed, yet hath Nature given him hands apt to provide, and to make use of Arms: which Infants, we see, do of their own accord without instruction. It was well observed of St. Chrysostome, De statuis. 11. That to all Creatures who want the use of reason, Nature hath affixed Arms to their bodies, as to the Oxe horns, to the Boar Tusks, to the Lyon claws: But to me, saith he, hath God assigned Arms not affixt to my body, but without it, hereby shew­ing that he intended man for a gentle creature, and that it was not lawful for me at all times to make use of such Arms. For as I often lay them aside, so I sometimes assume them, that therefore I may be the more free and at liberty, and not alwaies compell'd to go armed; God though he hath given me Arms, yet hath placed them without me. Aristotle also tells us, That hands were given unto man instead of a Sword, a Spear, or any other wea­pon; because he can thereby make use of all. Hence then we may conclude, That in the first principles of Nature, there is nothing that is repugnant to War. But if we will examine the Lawfulness of War by right reason, and the Nature of humane Society, which is the second and most perfect rule to judge by; we shall plainly per­ceive that all manner of force is not thereby forbidden, but that only which is re­pugnant to humane Society, that is, which invades another mans Right: for the main end whereunto such Societies were at first entred into, was that the whole should en­gage it self, that each part thereof should freely enjoy its own, which without much difficulty may be presumed to have been in force; although that which we now call Dominion had not been introduced. Because our lives, our limbs, and our liber­ties, had even then been our own, and could not without manifest injury have been in­vaded, or taken from us. So likewise, to have made use of such things as were then in common, and to have consum'd as much of them, as was necessary to sustain Na­ture,To rob ano­ther is more against Na­ture than sick­ness, impri­sonment, or than death. had been even then the right of the Occupant. But since Dominion hath been either by Law, or custom established, this is much easier to be admitted and understood, which I shall take leave to express in Cicero's own wordsDe offic. l. 3.: To purloyn from another that which is his, or to enrich our selves by the spoil of others, is more repugnant to Nature, than sickness, poverty, imprisonment, banishment, yea than death it self: For it dissolves that Contignation that there is, or should be betwixt mankind; for if this be admitted, it must necessarily disjoynt, and break in pieces, that sweet consociation that there is between man and man; than which nothing can be more agreeable to humane Nature. If every member of the body should be possest with this opinion, That it should enjoy better health, if it could attract unto it self the nourishment of the mem­ber next unto it, and should thereupon do it, would not the whole body languish presently and die? So if it were permitted that what one man soweth, another should reap, that what one man planted, another should receive the fruits of, or that one man should enrich himself by the spoils of another; it is impossible that that Society should long stand. For as it is most natu­ral for every man to love himself best, and to feed and support himself rather than another, with what is [Page 13] his own; so there can be nothing more unnatural, or abhorring from right reason, than for a man to take away from his neighbour that wherewith he should sustain himself; or to improve his own Estate by the ruin of his Neighbours. Neither is this more agreeable to the Laws of Na­ture and Nations, than it is to the municipal Laws of every City; for to this point do they all steer, at this they chiefly collime, this they all of them strictly command and enjojn, That every member of that Society should freely enjoy his own without fear or disturbance: For by this means is that excellent conjunction and Confederation between them preserved sound and intire. And he that willingly breaks this Golden Chain of humane Society, is by the general con­sent and astipulation of all people, adjudged as unworthy of humane Society: and therefore like some noxious beast is deservedly prosecuted to Banishment, bonds, imprisonment, yea and even to death it self. This then being agreeable to the Laws of Nature, and Nations, and being the end of all municipal Laws, must needs be the Dictate of right reason, and so the voice of God himself: whereunto whosoever willingly conforms himself, will certainly so moderate his desires, that he will never covet what is not his own; nor either by force or fraud impo­verish others for his own private gain; than which nothing can be more unnatural, nothing more unreasonable, nothing more destructive to humane Society. Neither is it against the Nature of humane Society, for a man to provide for himself so as he do not damnifie his Neighbour; and by consequence that force which doth not violate another mans right is not un­just: which the same Cicero thus expresseth, Since there are but two sorts of decertations, the one by arguments, the other by plain force: the former being proper to men, the other to beasts, we ought to make the latter our refuge, when by the former we cannot prevail. And in another place, Quid est, quod contra vim fieri sine vi posset? Ep. Fam. l. 12. ep. 3. What remedy can we have against force, but by force? So Ʋulpian, To repel force with force, is a right that Nature or­dains for all creatures.

II. This proved by Histories.

What I have already laid down, namely, that it is not every War that is repug­nant to the Law of Nature, may be farther justified out of the Sacred Story. For God by his High-Priest Melchisedeck, did approve of the War made by Abraham, and his Confederates, upon those four Kings that came to plunder Sodom. Yea and Melchisedeck blesseth God for the Victory; Blessed, saith he, be the most high God who hath delivered thine enemies into thine hand, Gen. 14.20. And yet had Abraham no special Commission from God for it; but was excited and perswaded thereunto by the mere Law of Nature, being himself a man not only exceedingly holy, but very wise, according to the Testimony that Berosus and Orpheus give of him. The War made by the Israelites upon the seven Nations whom God delivered up unto them, I purposely omit; because they had a special warrant from God to make War upon that people, who had highly provoked him: and therefore those Wars are in holy Writ called The Wars of the Lord, being undertaken by Divine not humane authority. More to our purpose was that War made by the Israelites under the conduct of Moses and Joshua against the Amalekites, who had forceably opposed them in their passage towards Canaan; which though it was not commanded to be done, yet being done was approved of by God, Exod. 17.Exod. 17.14. Nay farther God himself prescribed unto Moses certain general and lasting Rules and Ordinances how he should make War, whereby he sufficiently testi­fied, That War might sometimes be just,Deut. 20.10.15. though we have no special command from God to make this or that War; for there Moses makes a manifest difference between the case of the seven Nations, and the case of other people: For these they might receive to mercy, but not them. And seeing he doth not prescribe, for what particular causes they might make a just War, it may reasonably be presumed, that those causes may easily be discerned by the very light of Nature: such was the cause of the War that Jephtha made against the Ammonites, for the defence of their boundaries, Judg. 11. And that which David was enforced upon, against those who had violated the rights of his Ambassadors, 2 Sam. 10. And it is worthy to be observed what the Author to the Hebrews records, concerning those pious Heroes, Gideon, Baruck, Sampson, Jephtha, David, Samuel, &c. That by faith, they subdued Kingdoms, and put whole Armies of the aliens to flight, Heb. 11.34. Where under the notion of faith,Heb. 11.34. is included a full assu­rance they had, that what they then did, was acceptable to God. And upon this presum­tion also it was, that David is said, by a wise woman, to fight the Lords battle, and made a pious and just War,1 Sam. 25.28. which could not be if all manner of War had been ut­terly unlawful.

III. By examples.

To the authority of Sacred Story, we may add for greater confirmation, the universal consent of all, or at least, of the wisest of all Nations, concerning that force where­by our lives are defended. Cicero gives us the Testimony of Nature it self, Est haec, non scripta sed nata lex; This, saith he, is no written Law, but a Law that is born with us, Pro Milo [...]e. that [Page 14] if our lives be endangered, either through force, or Treachery; all means we can use for our safety are just and honest. And again, This, the learned are taught by reason; the unlearn­ed by necessity; the Nations by custom, and the very beasts themselves by natural instinct, to re­pel by all means whatsoever, all force and violence that shall be offered us whereby our bodies, our members, or our lives shall be endangered. So Cajus the Lawyer, Against all imminent dan­gers, De Bello Jud. l. 3. c. 25. natural reason teacheth us to defend our selves. And Florentinus, Whatsoever any man doth in his own defence is just and lawful. Josephus also informs us, That to preserve life is a Law that Nature her self hath imprinted in all living Creatures. And for this cause it is, that they who endeavour to dispoil us of our lives, are justly accounted our enemies. Which indeed hath so much of natural equity, that even amongst beasts, who (as I have said already) have nothing of Justice or Law among them, more than a faint shadow or re­semblance of it, we distinguish between that beast, which of his own accord assaults us, and that which assaults us in its own defence. And Ʋlpian notwithstanding that he had said before, That Beasts wanting the use of reason, could not be said properly to do wrong; yet he presently subjoyns, that when Rams or Bulls fight and kill each other, by the Law of Qu. Mutius, they were to distinguish between them, so, that if he perished, that was the aggressor, the action was null; but if he perished, that was provoked, the acti­on was good. The ground of which Law is set down by Pliny, Because, saith he, there is no sensible Creature, but what is impatient of an injury, and being assaulted, will assault a­gain. For as he well observes, Lyons will not prey upon Lyons, nor Serpents bite or sting Serpents: yet if any violence be offered them; there are none but will express somwhat that is like unto anger: none so stupid but being hurt, will to his utmost power defend himself, so that in all contests that which is defensive is the most just, because Natura potior est salus nostra, quam adversarii pernities Quintil. l. 7. c. 2. See Philo in the Pref [...]ce upon the fifth Command­ment.; Our own preservation is more agreeable to Nature, than the destru­ction of an enemy.

IV. That War is not repugnant to the Law of Nations.

By the Law of Nature then, (which may likewise be called the Law of Nations) it is evident, that all War is not to be condemned; nor yet by the voluntary Law of Nations, as Histories will sufficiently instruct us, wherein the Laws, Customs, and manners of all people are faithfully recorded. Nay by the very Law of Nations were Wars introduced, saith Hermogenianus; so he that wrote the lives of men, famous in their several ages, in that of the life of Themistocles, tells us, That he acknowledged that it was by his advice, that the Athenians surrounded their City with Walls; which notwithstanding by the common right of all Nations they might do, whereby to defend their publick and private Gods from the sury of their enemies. Yet whereas I said before, that by the Law of Nations War was at the first introduced, the words will as I conceive, admit of a better sense, than what at the first view they seem to import; as namely, that there are some certain forms and Ceremonies introduced by the Law of Nations, which by the consent of Nations do give such and such peculiar effects to such Wars as have them: whence ariseth that distinction whereof we shall hereafter make use; between a War that is solemn by the Law of Nations (which also is said to be just, that is, full and absolute) and a War that is not solemn, yet ceaseth not therefore to be just, that is, congruous to Right: for even other Wars (so as the cause be good) the Law of Nations doth nei­ther approve of, nor yet impugne, as shall be shewed more at large hereafter. It is ordained as a Law amongst all Nations, Lib. 43. saith Livy, that Arms may be repelled with Arms. With whom agrees Florentinus, It is generally consented unto by all Nations, that we may forceably drive away all violence and wrongs offered unto us, whereby our lives are endangered. Which justifies all Wars that are merely defensive; for as much as Nature is much better pleased with its own preservation, than with the destruction of enemies.

V. Nor to the Voluntary divine law be­fore Christ.

But the main question is, Whether it be agreeable to the divine voluntary Law to make War? And here if any shall object, that the Law of Nature being immutable, nothing can be decreed by God himself contrary to it. I answer, that this is true in such things as the Law of Nature doth expresly either command, or forbid: But not in such things as by the Law of Nature are only lawful, only, that is, tolerated: for such as these, because they belong not properly to the Law of Nature, but are without its jurisdiction, Obiections answered. may be either commanded, or forbidden. The first objection that is brought out of the holy Scriptures against War, is that Law given to Noah and his posteri­ty, Gen. 9.5, 6.Gen. [...].5, 6. Where God speaks thus: Surely the blood of your lives will I require, at the hands of every beast will I require it; and at the hands of man, at the hand of every mans brother will I require the life of man. Whosoever shed mans blood, by man shall his blood be shed: for in the image of God made he man. Some there are that would have the former words of requiring blood, understood in the largest sence; and the latter words of shedding blood, they would have to be a commination, and not an appro­bation; but I like neither. For the prohibition to shed blood is of no larger extent, than that in the Moral Law, Thou shalt not kill: which doth neither prohibit a Ma­gistrate, [Page 15] from putting to death an obstinate Malefactor, nor doth it forbid a lawful war. Neither doth the one or the other so much enjoyn any new thing, as revive and proclaim that old Law of Nature, which through evil custom had been almost defaced, where by killing and shedding of blood, we are to understand such a manner of putting a man to death, as implies some vice: As by the word Homicide or Murther, we under­stand not every putting a man to death, but the wilful destroying of an innocent person. But that which follows concerning the shedding of blood for blood, is to be understood (as I conceive) not so much of the bare fact, as of the right to do it, which I thus ex­plain; That every man should suffer as much evil from others, as he hath done unto o­thers, is not naturally unjust, according to that old Rhadamanthaean Law, ‘To suffer as we do, is just and right.’

That Phalaris should be tormented in his own Bull, That he that intended mischief to a­nother, should suffer the same mischief from another, is justissima patiendi norma, as Seneca speaks; The most equal rule of sufferance that can be ordained. Out of a deep sence of this natural Equity it was, that Cain (his hands yet reeking in his brothers blood) past this sentence upon himself; And it shall come to pass, that whosoever finds me, shall kill me. Gen. 4.14. But God in the infancy of the world, either by reason of the scarcity of men, or because this sin was rarely practised, and so the less need of exemplary punishments to deter them, did by an Edict repress that which seemed naturally to have been lawful, and adjudged the Ho­micide to wander as a vagabond, forbidding all men to have any commerce, or to make any contract with him, yet would he not have his life taken from him. Thus also did Plato ordain among his Laws; and that this punishment was much used among the ancient Greeks, Euripides testifies in these words:

To the same purpose is that of Thucydides: It is very probable that anciently small pu­nishments were awarded to great crimes; but at length those being slighted, they proceeded to death. Servius upon the first book of Virgil, descanting upon these two words, Solvetis, Luetis, saith: That these words were derived from the payment of money, Antiquorum enim poenae omnes pecuniariae fuêre: For among the Ancients all punishments were pecuniary. The like we find in Lactantius, Hitherto it was accounted impious to put men to death, though never so wicked; grounding their conjecture upon that one notable example of Cain, That it was not the will of God that Homicides should be so punished, whereupon it grew at length into a Law; so that Lamech not long after having committed the like sin (or rather (if he did commit the like) for Moses his words will bear this sence) yet by this one example promised to himself the same impunity, Gen. 4.24. Nevertheless, though before the Flood, in the age of the Giants, through the remisness of punishments men grew savage and outragious, killing each other like beasts; yet when after the flood, the earth was fully stockt with men, lest the same license should again increase, God thought fit to restrain it by a more severe punishment: So that correcting the lenity of the former age, what nature before judged not unjust, he himself permitted to be done, namely, that he that sheds mans blood, should himself be put to death, and that he that killed an Homicide, should be held innocent. But afterwards Tribunals being erected, this power for many weighty reasons was transferred to Judges only; yet so, that some prints of that ancient custom were to be seen, even after Moses his law was given (whereof more shall be said anon) as may appear by that right which was granted unto him that was next of kin unto him that had been slain: We have Abraham's practice to justifie this gloss, who though he very well knew the Law that God gave unto Noah, Gen. 9.6. yet took Arms against the four Kings, presuming on that principle of Nature, that to destroy the destroyer, was not displeasing to the God of Nature: Thus Moses com­manded the Israelites to fight the Amalekites, who with Arms opposed their passage into Canaan, having no other warrant for so doing, than the bare Law of Nature: For it appears not that in this, as in other like cases, he consulted with God at all, Exod. 17.9.Exod. 17.9. Whereunto we may likewise add, that Capital punishments were executed not against murther only, but against other great crimes; and that not amongst the Gentiles only, but even among the Patriarchs, as the story of Judah and Thamar doth clearly evince, Gen. 38.14.Gen. 38.14. rationally conjecturing by an Argument drawn from like to like, that it was agreeable to Gods will, that the punishment ordained against Homicides, might justly be inflicted on such as were notoriously criminous. For some things there are that we equally [Page 16] value, as we do our lives, such are our Honour, our Virgin Chastity, our Matrimonial Faith, and such things without which our lives cannot be well secured; as our reverence to our Prince, without which no society can be preserved. Now they that offend against any of these, are no better than Homicides, and are therefore to be equally punished with them. Hence ariseth that ancient Tradition among the Hebrews, that God gave more laws to Noah than were recorded by Moses, who thought it sufficient to insert them a­mong those laws which God gave to the Hebrews by himself.Incestuous marriages for­bidden before Moses. Incestuous Marriages were certainly forbidden by some Law before Moses his time, for which God is said to visit the Heathen, and to cast them out; for it had not been accounted as a sin, and so not punish­able by desolation had there been no law to forbid it; and yet we do not find it in any place expresly prohibited, until Moses records it as punished, Lev. 18. Among those things that were commanded by God to the Sons of Noah, they reckon this, that not only Murther, but Adultery, Incest, and violent Rapes were to be punished with death, which seems to be confirmed as well by the story of Abimelech, Gen. 20.6.Gen. 20.6. as by the words of holy Job, Job 31.11.Job 31.11. But the law given by Moses adds the reasons of these Capital punishments which were no less in force among the Gentiles, than among his own people,Psal. 101.5. Prov. 20.8. as it is most apparent, Lev. 18.24, 25. and the 27, and 28. verse. And else­where he tells us, that the Land being defiled with blood, could not be cleansed but by the blood of him that shed it, Numb. 35.31, 33. And it were unreasonable to think, that God should indulge this favour to the Jews only, that they might defend themselves by war and punish malefactors with death, and at the same time forbid it to other Nati­ons: Neither doth it appear that the Prophets were at any time sent by God, to admo­nish or reprove either Kings or People for either inflicting Capital punishments on Male­factors, or for undertaking a war, merely, as war, as they were to reprove other sins. But on the contrary, who would not think but that seeing Moses's judicial laws were ob­served to carry the stamp of the divine Law, those Nations did wisely and piously, who formed their laws according to that original? As questionless the Greeks, especially the Atticks did, and from them the Romans in their Laws of the twelve Tables. But let this suffice to prove that the laws of Noah are not so to be understood as they conceive, who by them would evince all wars to be unlawful.

VI. Cautions, concerning the lawfulness of war by the Gospel law.

But much more specious are those Arguments which are drawn out of the New Testa­ment against war: In the examination whereof I shall not take that as granted which some do, that there is nothing in the New Testament commanded (except matters of Faith and the Sacraments) but what is commanded by the Law of Nature: For this, in that sense wherein they take it, I cannot admit it. But this I willingly grant, that there Caution. 1 is nothing commanded in the Gospel but what is naturally honest: But that the laws of Christ do not oblige us further than to what the Law of Nature doth by it self bind us, I see no reason why I should admit: And for them that approve of this opinion, it is a wonder to see what pains they take to prove that Polygamy, Divorce, Fornication, which we find forbidden in the New Testament, were by the law of Nature unlawful. Hence is that of St. Jerome, Aliae sunt leges Caesaris, alia Christi, aliud Papinianus, aliud Paulus no­ster praecipit: The laws of Caesar are one, and the Laws of Christ another, it is one thing that Papinian prescribes unto us, and another what St. Paul commands. 'Tis true, th [...]se are such as [...]ight reason tells us, to abstain from, is more agreeable to the rules of honesty; but not such as are in themselves impious, but only as they are by the Divine Law forbidden. But as to that which the Christian Law enjoyns us, namely, That we should lay down our lives one for another, John 3.16. who can say that we are obliged thereunto by the Law of Nature: It is for those that do not yet believe the Gospel, Ad Lena [...]. to be guided by the Law of Nature, saith Justin Caution. 2 Martyr, of which opinion likewise was Origen. Neither can I assent unto those who hold that Christ in his Sermon on the Mount, did only interpret, and (as it were) embowel the Law of Moses: For those words so often repeated, (Ye have heard that it hath been said to them of old; But I say unto you:) do plainly signifie another thing, yea and the Sy­riack and other Translations do clearly shew, that by veteribus is understood not by, but to them of old; as in the opposite word, vobis, is not meant by, but to you. But those of old were none other, but such as lived in Moses his time, and those sayings that are there rehearsed, as spoken to them of old, were meant as spoken by Moses himself, not by the Lawyers either in the same words,Exod. 20.13. L [...]vit. 20.21. Exod. 20.14. Deut. 24.1. Exod. 20. [...]. Lev. 24.20.19.18. Exod. 34.2. Deut. 7.1. Exod. 27.19. or to that sense; as Thou shalt not kill, who­soever killeth shall be in danger of judgment; Thou shalt not commit adultery, whosoever shall put away his Wife, let him give her a Writing of Divorcement: Thou shalt not forswear thy self, thou shalt perform unto the Lord thine oaths: An eye for an eye, and a tooth for a tooth, (that is, thou mayst exact this in judgment) so thou shalt love thy Neighbour (that is an Israelite) and hate thine enemy; that is, those seven Nations with whom they were forbidden to contract friendship, or to whom they ought to shew no mercy; unto whom we may add the Amalekites, with whom they were bound to have a perpetual war, Deut. 25.19. Now the better to understand the words of Christ, we must necessarily understand that [Page 17] the Law given by Moses will admit of a twofold construction, either in such a sense,A twofold sence of Mo­ses his Law. Carnal. as is common with all humane Laws, namely as it restrains men from gross sins by the fear of publick punishments, Heb. 2.2. And so it was given by Moses to restrain the Hebrews in the state of a Civil Government, Heb. 7.16. Where it is called the Law of a carnal. Commandment, as it is also in another place called the Law of Works, Rom. 3.27.Rom. 3.27. Or it is taken in a sense. more proper to a Divine Law, namely, as it requires also the purity of the mind, and such duties, the omission whereof, no hu­mane Laws do punish. In which sense, it is called a spiritual Law, Rom. 7.14.Spiritual. Com­forting the soul, Psal. 19.9. (which the Latins make the 18th.) The Pharisees and Lawyers contenting themselves with the Carnal part of the Law, wholly neglected the spiritual as superfluous; and therefore never instructed the people therein, as not our own writers only, but Josephus and many of their own Doctors do testifie against them. But as to the spiritual part also we must know, That those vertues which are required from us Christians, were either commanded or commended unto the Hebrews also, al­though not in that degree and Latitude, as they are unto us, which we have already proved. For a more perfect and exact obedience is now required from us,Supra. ch. [...], §. ult. than was formerly from the Jews; because the coming of Christ doth heighten our hopes, by far more precious promises. And the graces of his spirit which descended unto them but as a little dew upon the Herbs, falls on us as showers on the Grass.Chrysost. de virg. c. 44. Ʋnder the Law God did not bind us up to so great a measure of vertue as h [...]ow doth under the Gospel; then it was permitted to take some revenge for injuries done, as to revile them that reviled us; we might exact an eye for an eye, a tooth for a tooth; it was then permitted unto us to swear, though not to for swear, and to hate our enemies: It was not as yet forbidden to be angry, to put away a Wife that offended us, or to marry another; nay, nor to have diverse at the same time. Great was the Indulgence of the Old Law in these and the like cases. But since the coming of Christ, the way to heaven is made much straiter, and narrower than before, both by the addition of many new precepts not given in the old Law, and also by straining up those that were so given, to a much higher Key. Christ therefore opposeth his own doctrine to the doctrine of the ancients, in both these senses; first because his own took not hold of the outward man only, to restrain it by pure negatives, as other Laws did; but restrained the inward man also obliging to positive duties, whose omission was not punishable by Moses his Law. But also in the second place because it enjoyned spiri­tual duties, in that heighth of degree, that neither Moses, nor any other Law-giver, did ever reach; whence it is plain, that what Christ delivered, was not a bare inter­pretation of Moses his Law, as some would have it. But yet that these things should be known, is not only pertinent to the matter in hand, but to many other purposes, lest we should attribute greater authority to Moses his Law than indeed is fit or due un­to it.

VII. That it is not repugnant to the Gospel to make War.

Omitting such arguments as are less convincing, the first and principal Testimony where­by it may easily be proved that all right of making War is not fully taken away by the Evangelical Law, is that of St. Paul to Timothy: I exhort you, saith St. Paul, that a­bove all things, Prayers, and suplications, Intercessions, and giving of thanks, be made for all men, for Kings and such as are in authority; 1 Tim. 2.1, 2, 3. that we may lead a quiet and peaceable life in all God­liness, and honesty, for this is good and acceptable in the sight of God our Saviour, who would have all men to be saved, and to come to the knowledge of the truth. From whence these three things are to be learned; first, that it is acceptable unto God that Kings be made Christians: Arg. 1 Secondly, that being made so, yet they cease not to be Kings; Which Justin Martyr thus ex­presseth, We pray, saith he, that Kings and Princes may together with their Regal Power, retain a sound and perfect mind. And this also in the third place we may learn, that Christian Kings should use their utmost endeavours, That other Christians may lead under them godly and Christian lives. But you will happily say, How? Surely the same Apostle explains himself else­where thus, He is the Minister of God for thy good, and if thou do ill then fear: The right of the Sword. Non enim frustra gladium gerit; For he beareth not the sword in vain, for he is Gods Minister, an avenger to execute wrath upon them that do evil. Under the right of the Sword, is comprehended all manner of re­straining or coercive authority, and so it is also sometimes understood by Lawyers; yet so, that the chief and principal part, that is, the true and proper use of the Sword is not excluded.Psalm 2. The Second Psalm doth very much conduce to the understanding of this power, which Psalm, though verified of David, yet was much fuller and clearer under­stood of Christ, as we may collect out of Acts 4.25. and Acts 13.33. and out of Heb. 5.5. Now that Psalm exhorts all Kings to kiss the Son of God with reverence,How Kings serve God as Kings. that is, to express themselves his servants as they are Kings; for so St. Aug. rightly expounds that place, whose very words as being pertinent to our purpose, sound thus, Herein, saith he, do Kings serve God according to his command, as Kings, when they encourage vertue, and depress vice not only in things appertaining to humane Society, but in things appertaining also to the worship of God. And so in another place: How, saith he, do Kings serve the Lord [Page 18] in fear, Ad Bonif. Ep. 50. unless it be in prohibiting, and by a Religious austerity punishing all manner of im­piety? For to serve God as a man, is one thing, but to serve him as a King is another. And a little after, Herein do Kings serve God, as Kings, when in zeal to his service, they do those things which none can do but Kings.

Arg. 2 The second Argument, whereby we prove that all Wars are not unlawful; is drawn from that place of St Paul before cited in the 13th to the Romans, Rom. 13. where it is said, That the highest powers, and such are those of Kings, are ordained of God, and that power is therefore called Gods ordinance. Kingly Go­vernment. asserted by St. Paul. From whence we inferr the necessity of our subjection, together with that honour and reverence we owe unto them, and that, not so much out of fear, regarding the power they have to hurt, and punish; as out of Conscience, as it is Gods ordinance, and out of a strong perswasion, that in resisting it, we resist God himself. Now if the thing understood by the word, Ordinance, were only that which God permits, and will not hinder, as all actions that are vitious, then would there follow no obligation of honour or obedience, especially that extended to the Conscience; and therefore the Apostles whole Argument, would instantly fall to nothing, whose main scope was to extol this Regal power, which if wicked, he could never do, but by the same Argument he might as well have commended Theft, and Robbery. It must necessarily follow then, that by this ordained power, we understand such a power, as God doth especially approve [...]; and then we may safely inferr, That seeing that God cannot will things contrary to [...]mself, that this power is no ways repugnant to that will of God, which is revealed in the Gospel, and which obligeth all men to honour and obedience: neither doth it at all weaken the force of this Argument, That at that time, when St. Paul wrote, all Kings and Princes were strangers to the Christian Faith. For in the first place, this is not Universally true; for even at that time Sergius Paulus be­ing Propraetor of Cyprus had given up his name to Christ long before, Acts. 13.12.Act. 13.12. Be­sides, this dispute is not concerning persons, whether pious, or impious, but concern­ing the Kingly function, whether it be ordained of God, or usurped by men, which St. Paul seems here to determine, plainly asserting, That ordinance to be from God: and thereupon concludes, That it ought to be honoured and obeyed, and that, not out­wardly, only for fear, but even in the inmost recesses of the mind, where God alone doth properly reign. 26 Christianity then doth not abolish Soveraignty; Nero and Agrippa, though they had received this faith, yet had still remained, the one an Emperor, the other a King; which necessarily inferrs the power of the Sword. For as under the Law, the Sacrifices were reputed holy,See Chrysost. in locum supra ci­tatum. though offered by Hophni and Phineas, Priests unholy: so Pia res est imperium, quamvis ab impio teneatur; The Function is Sacre [...] [...] though the person be never so wicked: Saul was anointed King, as well as David.

Arg. 3 A Third Argument is drawn from the words of St. John the Baptist, who being de­manded by the Jewish Souldiers, what they should do to flee from the Wrath to come, did not command them presently to lay down their Arms, and desert their calling, though they fought then under the Roman Banners, as in all probability they would have done, had it been contrary to the Christian Law to make War: but allowing their calling, he only labours to reform the abuses of it, exhorting them to abstain from acts of un­lawful violence, and from false accusing, and to rest content with their wages, Luk. 3.14.Luke 3.14. But here, some object, That there was so great a difference between the precepts of Christ, and the prescriptions of the Baptist, that the Baptist seems to preach one Doctrine, and Christ another; but this we cannot admit, first because both of them declare the sum and substance of the Doctrine they intended to preach, in the same words, Repent for the Kingdom of Heaven is at hand; so begins the Baptist, Mat. 3.2. And so Christ, Mat. 4.17. And Christ himself saith, The Kingdom of Heaven, that is, the new Law (for it is the manner of the Hebrews,The Jews call their Law, Kingdom. to call their Law by the name of Kingdom) began to suffer violence from the daies of John the Baptist, Mat. 11.12. John is said to preach repentance for the remission of sins, Mark 1.4. So did the A­postles in the name of Christ, Acts 2.38. John required fruits worthy of repentance, and threatens destruction to those that do not produce them, Matth. 3.8, 10. He requires also works of Charity beyond the Law, Luke 3.11. The Law also is said to continue till the days of John, that is, until the new and more perfect Law should with him begin, Mat. 11.13. And for this cause it is that John is said to be Pro­phetis major, Greater than the Prophets, Mat. 11.9. Luk. 7.26. and that he was sent to give knowledge of Salvation unto the people, Luk. 2.77. and to preach the Go­spel,Acts 19.4. Joh. 1.29. Mat. 3.11. Mat. 1.8. Luk. 3.16. Luk. 2.18. Neither did John ever distinguish Jesus from himself, by any difference that there was in their Doctrines, (but only, thus, that what John declared generally and confusedly, was more distinctly delivered by Christ, who was the true light) but by this, That Jesus was the Messias that was promised, the King of an heavenly King­dom, who should give the power of the holy Ghost to those who should believe on him.

The Fourth Argument, and which seems to me of no small force is this, That if by the Arg. 4 Gospel al [...] power were taken away from the Magistrate to execute capital punishments,An A [...]gu­ment [...]r [...]om [...] con [...]ou [...] [...] t [...]t [...]ou [...] foll [...]w. together with that of the Sword, to defend their Subjects from Thieves and Robbers: how soon would the Christian world be over-run with Rapin and violence, and what a Deluge of wickedness, of all sorts would break in upon us? That this must needs be the consequence, we shall easily grant; if we either remember what sad effe [...]ts this remisness brought upon the old world; or if we do but observe, how hardly these sins of Rapin, Cruelty, and the like are restrained now, even by capital punishments: For the suppressing whereof Tribunals, Laws, and so many kinds and degrees of punishments: are invented, saith Chrysost. in serm ad Patrem fidelem Wherefore if Christ had intend­ed to have introduced a new, and never before heard of form of Government; without doubt he would have declared it in such distinct terms, and in such a plain dress of words, as should have been liable to no misprision; as, Let no man hereafter adjudge Malefactors to death, Let no man take Arms to defend himself, or the like, which we no where read that ever he did: but whatsoever words are wrested from the Scriptures to this purpose, are either very general, or very obscure. But equity it self, and common reason will instruct us thus much, That in publishing new Laws we are to restrain words too general, and to explain terms too ambiguous; and rather to decline a little from the common acception of the words, than to admit of such a sense of them, as may introduce so many mischiefs and inconveniences with it.

The Fifth Argument is this, That it cannot be concluded by any probable argument, Arg. 5 that the Judicial Law of Moses was ever abolished, till their City Jerusalem was burnt, and with it, not the form only, but the very hopes of a Commonwealth did utterly vanish. For neither doth Moses prefix any term or period to this Law, nor doth Christ or his Apostles any where declare the surceasing of it; unless as it seems to be comprehended in the destru­ction of the Commonwealth: yea rather on the contrary, St. Paul saith, That the High Priest was constituted, that he might judge according to the Law of Moses, Acts, 24.3. And Christ in the Preface to his pecepts, Mat. 5. saith,Mat. 5.17. That he came to fulfil the Law, and not to destroy it; which words if we referr to the Ceremonial Law, are not difficult to be understood: for when the Picture is finished, what need we the foul draught? The Ceremonial Law was fulfilled in him, it consisting in Types and shadows, whereof the substance was Christ; but how could Christ be said to fulfil the Judicial Law, if (as some hold) he took it away? And if the Jews were obliged by the Judicial Law, till the dissolution of their Commonwealth, it will follow, That the Jews, though Christi­anized, in case they had been called to be Magistrates, could neither have avoided it, nor have judged otherwise, than as Moses had prescribed. I, truly, having through­ly weighed all that can be said, can find no ground at all, why any pious man should expound those words of Christ in any other sense: This I acknowledge, that many things were tolerated among the Jews before the coming of Christ, (whether as to outward impunity, or in respect of inward purity also, I shall not now determine) which Christ would not permit in his Disciples, as for a man to put away his Wife for every offence, and for a man injured, to require revenge by way of Reta­liation: but yet between Christs precepts, and Moses his permission, there may be some difference, but no repugnancy; for, under the Law, if a man did retain his Wife, or if he did remit revenge privately due, he could not be said to break the Law, but to do that which the Law did chiefly require of him. But it is far otherwise in a Judge, whom the Law doth not permit, but enjoyn to punish a Murtherer with death; which if he do not, he himself shall be found guilty before God. Now if Christ had commanded such a Judge, that he should not adjudge any Malefactor to death, this being contrary to Law, he had dissolved, and not fulfilled it.

The Sixth Argument is drawn from Cornelius the Centurion, who received the Holy Ghost Arg. 6 (an undeniable sign of Justification) from Christ himself,From the ex­ample of Cor­nelius. and was baptized into the name of Christ by St. Peter; yet do we no where read that he laid down his Com­mission, or that he was admonished by St. Peter so to do. But some may say, That be­ing instructed by St. Peter in the Christian Religion, it may be presumed, that at the same time he did resolve to desert his calling: whereunto I answer, That if it could be any where found amongst the precepts of Christ, or infallibly proved, that Christ did for­bid to make War, then what they say were to the purpose. But seeing no such precept is extant; certainly it is much more probable, that in this case of Cornelius, somewhat would have been said against it, if it had been held unlawful, that so in after ages, men of that profession might not have pleaded ignorance of the danger incident to that fun­ction. Neither is it likely that in case the Centurion had then renounced his Military profession, St. Luke would have omitted the recording of it, as usually he did in like cases, as will appear by several places, but especially. Acts 19.19.

Arg. 7 The Seventh Argument we deduce from Sergius Paulus, of whom after his conver­sion there is not the least-mention made of his renouncing his Propraetorship,And of Sergi­us Paulus. or of any admonition given him by St. Paul to do it: that which is not recorded, (being most expedient to have been so) may be presumed not to have been done at all.

Arg. 8 The Eighth Argument is drawn from the practice of St. Paul, who understanding that the Jews had laid wait to kill him,And of St. Pa [...]. acquainted the chief Captain therewith, who sent him a strong guard of Souldiers to secure his person; which St. Paul did not refuse, nor did he admonish either the chief Captain, or the Souldiers. that it was not acceptable to God to repel force with force, which he had been apt enough to have done, had he believed it to have been unlawful.

Arg. 9 The Ninth Argument is taken from St. Pauls precept, for paying tribute for conscience sake.From Tribute which was to have been paid. Rom. 13.6. for of every thing that is honest and just, its proper end must needs be so: now the properend of paying of Tribute, is to maintain the power of the Sword, whereby the in­nocent are protected, and the nocent corrected or cut off. But that we render unto Princes their Tribute due, is a precept of the new Law, and bindeth the Conscience, as St. Paul testifies to the Romans; therefore it follows, that by the precepts of Christianity, the power of the Sword in the hands of the chief Magistrate is honest and just: very per­tinent to this purpose,Hist. l. 4. lib. 22. contra Faustum c. 74. is that of Tacitus, There can be no peace amongst Nations without Arms, no Arms without pay, nor pay without taxes. So St. Aug. For this cause pay we Tribute, that Souldiers may have their wages to buy necessaries.

Arg. 10 The Tenth Argument is taken from St. Pauls speech, Acts 25.Acts 25. If I have wronged any man, or if I have done any thing worthy of death, I refuse not to die. So Act. 28.18.Act. 28.18. They found no cause of death in me, Act. 28.18. saith St. Paul: Whereupon Justine Martyr thus gloss­eth, If there be any amongst us that live not conformably to those precepts, being only in name Christians, that such should be punished, and that, by you, is our desire, as well as yours. From whence we may collect, that it was St. Pauls opinion, even after the Gospel was published, that there were some crimes which in common equity deserved death: which very thing is granted by St. Peter also, 1 Pet. 2.19, 20. But if it had been Gods will that no Capital punishment should have been executed after Christs com­ing, St. Paul might have purged himself; but he thought it not convenient to instil such prin­ciples into the minds of his hearers, as though it had not been as lawful then, as formerly, to punish Criminals with death; wherefore he waveth this Plea, and submits to the ancient Law, If I have done any thing worthy of death, I refuse not to die. Now, having thus proved, that after the Christian Law was given, it was lawful to punish obstinate Malefactors with death; I take it to be sufficiently proved that it is Lawful for Princes to make War, namely against such a multitude of offenders, as shall by force of Arms infest a Nation, who unless they be by force subdued will never acknowledge their own guilt. For though the power of these offenders, and their obstinate resolution may be a prudent consideration to perswade Princes sometimes not to execute it; yet certainly, it diminisheth nothing of their right so to punish.

Arg. 11 The last Argument may be this, that the Christian Law did abrogate that Law of Moses only, that did separate the Gentiles from the Jews, Eph. 2.14. But those things which have the reputation of being honest either by the Law of Nature, or by the unanimous consent of all Civilized Nations, the Christian Law is so far from taking away, that it comprehends them under that general precept of all honesty and vertue, Phil. 4.8. 1 Cor. 11.14. And as to the Capital punishments of Malefactors, and the repelling of injuries by force, these may be ranked among things laudable, and may well be referred unto those two excellent vertues, Justice and beneficence. But here, on the by, we are not to omit the error of some, who wholly attribute the lawfulness of the Jewish Wars against the seven Nations to the grant, that God made unto them long before of the Land of Canaan: whereas this, indeed, may be one, but not the only cause. For as well before, as after the possession of that Land, many pious and just men did make War, by the guidance of mere natural reason upon several other occasions. As King Da­vid did, for the affronts offered unto his Ambassadors; neither are those things which every man enjoys by the right of humane Laws less his own, than that which is given him by God himself, nor is that right either lessened or taken away by the Chri­stian Law.

VIII. The Argu­ments for the adverse opi­nion answe­red.

Esay 2.4. Orat. Christian esse Deum. Euseb. de praep. lib. 1. c. 10.Now by poising these arguments with those brought on the adverse part, the ju­dicious may easily find whether of them are weightiest. And in the first place, they urge that of Esay, And it shall come to pass, that the people shall break their Swords into Plough­shares, and their Spears into pruning hooks, Nation shall not lift up Sword against Nation, nei­ther shall they learn War any more. Which words of Esay, St. Chrysostome applies unto that universal peace that the world enjoyed under the Roman Empire; Neither was it foretold only, saith he, that this new Religion should be firm, stable and unshaken; but that therewith there should come peace to the whole earth. But this Prophecy of Esay (as I take it) is [Page 21] to be understood, either under some condition as many others are, as that such should be the state of affairs, in case all Nations should submit to the yoke of Christ, and live according to his Law, whereunto there shall nothing be defective on Gods part: for most certain it is, that if all were Christians, or all that call themselves so, would live after the rules of Christ; there would be no occasion for Capital punishments, and con­sequently no use at all of the Sword. So Justin writes of the Christians in his time, Non pug namus in hostes, We, saith he, fight not against enemies: and thus Philo testifies of the Esseni, There is none among them, that make either Javelins, Arrows, Swords, Helmets, or any other instruments of War. So Chrysostome, Si esset inter homines qualis oportet dilectio, nul­las fore poenas capitales; If there were that perfect love among men that there should be, there would be no need at all of Capital punishments. Then also as Arnobius speaks, would Iron and Steel be converted into more innocent and profitable instruments, than for men therewith to kill and destroy each other. Or this place of Esay is to be understood simply and pure­ly, as the words import; and then it is apparent that this prophecy is not as yet accom­plished, but the fulfilling thereof, as that of the general conversion of the Jews, is yet to be hoped for; but take it, as we please, in either sense nothing can be from thence concluded against the lawfulness of War, so long as they that heartily endeavour to live in peace, are not suffered to enjoy it: Or as the Psalmist hath it, whilst some are endea­vouring after peace, others are preparing themselves for battel.Mat. 5. expounded Many arguments are usually drawn from the fifth of St. Matthew. For the resolving whereof, it is convenient that we should remember what a little before was said, that had our great Law giver intend­ed to have abolished all Capital punishments, and this Right of making War, he would certainly have done it in most plain and express terms, the matter being so weighty, and so new; and the rather, because none of the Jews could conceive or imagin but they were ob­liged to Moses his judicial Laws, so long as their Commonwealth should stand. This being thus premised, let us orderly examine what plain and concluding power, these places of Scripture have to evince the thing they are brought for. Answered. The Second place they urge is this, Ye have heard it said, an eye for an eye, and a tooth for a tooth; but I say unto you, do not resist him that doth thee an injury, but if any man strike thee on the one cheek, turn to him the other also. From hence some do infer, That it is unlawful either to repel, or to avenge an injury, whether publickly or privately. But this cannot be enforced from the words of Christ, who doth not there address his discourse to the Magistrate, but to the person injured; neither doth he there speak of every injury, but of such slight ones, as a box on the eare, and the like: the precept following seems to restrain the words pre­ceeding, as if they were too general, If any man will sue thee at the Law, Lib. de patien­tia. to take away thy Coat, let him have thy Cloak also; which words Cyprian thus expounds, What is taken away from thee unjustly, seek not to recover. And so likewise Irenaeus, Lib. 4. c. 2 [...]. If any man shall take a­way thy Coat, do not grieve, as if thou wert deprived of it against thy will; but rather rejoyce, as if thou hadst given it voluntarily. And if any man shall compel thee to go with him a mile, go with him not grudgingly but willingly, not following him as a servant, but going before him as a guide. It is not every contest in Law that is therefore forbidden, as St. Paul seems to inter­pret that place in 1 Cor. 6.4, 5, 6, 7. But he forbids Christians to go to Law for every trifle, or to convent their brethren before the Tribunals of the Heathen, con­trary to the custom of the Jews, amongst whom it was a received opinion, Qui adducit negotia Israelitica ad extraneos, polluet nomen Dei; He that makes a stranger Judge of any controversie between Israelites, pollutes the name of God: but Christ to exercise the pati­ence of his disciples would not have them cavil in judgment for things easily reco­verable, as for a Coat or Cloak. For though they might do it Optimo jure, with the greatest Right, yet was it much more acceptable to God rather to suffer such losses with patience, than to prosecute the Law for them. Apollonius Tyanaeus denies it to be the part of a wise­man, to sue for a little money. There is no judge, saith Ʋlpian, Philost. 2, 15. that can disapprove of that man, who sets so little by his loss, as not to vex himself for it with many sutes, for that mans disposi­tion that hates contention, is no waies to be disallowed. What Ʋlpian there saith is approved of by all good men, and is no more than what Christ there commands, collecting the sum and substance of his precepts out of these things that are most honest and vertuous. But yet, thou canst not hence well conclude, that for a Parent or a Tutor to defend, or recover by Law, that which his Child or Pupil hath been wrongfully deprived of, and without which he cannot subsist, being thereunto compelled, is any violation of this precept of Christ. For it is one thing to contend for a Coat which haply we may spare, and another thing to contend for that, without which we cannot live. In the Constitutions of Clement, it is said concerning a Christian, If he have a sute at Law, let him endeavour as soon as he can to end it, though it be to his loss. What therefore is usually said of moral duties, may also be said of these precepts, that they consist not in a point, like the negative precepts of the Law, from which we cannot deviate in the least without sin; for these have their huc usque, their certain Latitudes, wherein we may walk safely. So, in [Page 22] that precept that follows, If any man shall compel thee to go with him a mile, go with him two. He saith not,For trifles it is better to suffer than to [...]ontend. he that compels thee to go with him one hundred miles, this had been hard, because haply it would draw us too far from our own necessary concernments, and so the injury or damage done would be greater to our selves, than the benefit to him: But he mentions a mile or two only, which cannot much endamage us. The sense of the words then must needs be this: In such things as are not very damageable to our selves, we are not too strictly to insist upon our own right, but rather to grant more than is re­quired from us, that our patience and readiness to do good may be known unto all. Thus Justin Martyr expounds these words, What Christ there said, tends only to this, that we should behave our selves towards all men patiently, obligingly, and not prone to anger. But it sollows, Give unto him that asks, and from him that would borrow turn not a­way: Than which words, if not understood with some limitation, nothing sound harsher. He that takes no care for his Family, saith St. Paul, is worse than an Infidel: Let St. Paul himself be Judge who was best able to expound his Masters Law, and who exhorting the Corinthians to extend their liberality to the poor at Jerusalem, saith, Not that others should be eased and you burdened, but that by an equality, your abundance should supply their wants: that is, (to borrow the words of Livy, in a case not unlike to this) that out of your store ye may relieve the necessities of others. Dabo egenti, sed & ipse non egeam, I will give to the poor, but so, as that thereby I make not my self poor, saith Seneca. So also Chrysostom, God requires those things of us that are in our power to give: According to what a man hath, saith St. Paul, and not according to what a man hath not. And he commends the Thessalonians, that they gave above what they were able; but yet he doth not exact the same from the Acha­ians: To the like purpose is that of Cyrus in Xenophon, What I find superabundant in mine own estate, will be sufficient to relieve the wants of my friends. By all which we may con­clude,The indul­gence of the Hebrew Law. That this precept of our Saviours (as all the rest which follow in this Chapter) are to be understood with some equitable limitation, and not barely as the words import: The Hebrew law to prevent the cruelty of Husbands to their Wives, did indulge unto them the liberty of Divorce; and to prevent private revenge, whereunto that Nation was too much addicted, gave liberty to the injured person to avenge himself, not by his own hand, but by requiring it from the Judges, according to the Rule of Retaliation; which Law was so pleasing to the Romans,Which Christ reforms. that they inserted it among those in the 12 Ta­bles, Si membrum rupit talio esto, He that breaks a limb shall suffer the like. But Christ being Ma­ster of much more patience, was so far from approving this Law, that he would not per­mit his disciples to repel some injuries either by force or judgment.

But what injuries were these? Surely such as might easily be born, not that patience was not commendable even in the greatest, but that he was content with somewhat a more limited patience: And therefore he instanceth only in a box on the Ear, which neither endangers [...]se nor limb, but implyes only a slighting or contemning of us, which doth not at all damnifie us. Seneca in his Book entituled, Of a wise mans Constancy, distin­guisheth between an injury and a reproach: The former, saith he, is naturally more grie­vous; the latter more light, and to such only as are nicely bred, troublesome: Qua non laeduntur, sed offenduntur; whereby they are offended, but not hurt. Such is the weakness and vanity of mens minds, that they esteem nothing worse than a reproach; so we may find some servants, that had rather be beaten with stripes, than to take a box on the Ear. So in another place, A reproach (saith he) is much less than an injury, which we rather complain of than revenge, there being no punishment assigned unto it by the Law So he in Pacuvius, Patior facile injuriam, si absit contumelia; An injury I can easily digest, provided that it be without contumely. To the same purpose also is that of Demosthenes, The Tongue wounds deeper than the Sword, and stripes though grievous, yet are more easily born, if not accompanied with reproaches. And the same Seneca a little after tells us, That grief arising from reproach, is an affection or passion occasioned by the humbleness of a mind contracting it self, by reason of some word or deed tending to our disparagement. Against all these passions which seem to invade the tranquillity of the mind, Christ fortifies his disciples only with patience; so that in case the wrong offered us either in word or deed, do not much hurt us, it is more magna­nimous to overcome them with sufferance and patience, than to seek revenge either by force or Law. And lest we should be discouraged by that vulgar saying, Veterem ferendo injuriam invitas novam; By over calmly bearing an old injury, we do but invite a new: Our blessed Saviour adds, that even the second is rather to be endured, than the first either re­pelled or revenged;De Statuis 1. because such kind of injuries leave no evil Characters behind them, besides what consists in our own foolish conceits. For what St. Chrysostom observes is very true, Contumelia non ab inferentis animo sed ex judicio eorum qui patiuntur, aut sit aut perit; A reproach doth either vex or vanish, not according to his intention that inferred it, but according to the apprehension of him that suffers it. To offer the Cheek is an Hebrew phrase, implying the bearing of a thing patiently, as may be collected from Esay 30.6. and from Jeremy 3.3.Tacitus hist. 3. whence the Latines borrowed it, as appears by that Phrase so often used by Tacitus, [Page 23] Terence, and others, Praebere os contumeliis, is, To bear reproaches patiently. Ter. Adelph.

The third Objection is taken from the words following, Ye have heard that it hath been Obj. 3 said, Thou shalt love thy Neighbour and hate thine enemy: But I say unto you, Love your ene­mies, bless them that curse you, and pray for them that despitefully use you, and persecute you. Matth. 5.43. There are some that think that these duties of Dilection and Beneficence to our enemies, are directly opposite to War and Capital punishments: But this objection will easily va­nish, if we do but understand the very words of the Hebrew Law; for the Jews were commanded to love their Neighbours, that is Jews or Hebrews (equal unto whom were Proselytes; but those laws which forbad them to do hurt, reached even unto those Stran­gers that lived among them, being uncircumcised,Whereof be­fore, ch. 1. §. 16. as the Talmudists note) for in this sence is the word Neighbour there taken, as appears Levit. 19.17. being compared with the Verse there following. And yet notwithstanding were the Magistrates commanded to inflict Capital punishments upon Homicides, seducers of the people to Idolatry, and other hainous and obstinate Malefactors: So notwithstanding this precept of loving their Neighbours, the 11 Tribes did justly make war against the Tribe of Benjamin, for their more than barbarous inhumanity, Judg. 21. so notwithstanding this Precept, did David, who is said to fight the Lords battels, by force of Arms recover the Kingdom (being promised to him) from Ishbosheth. But admit that the word, Neighbour, doth now extend it self to all mankind, for as much as all are now fellow Denizens, all received into the Covenant of Grace, and no one people accursed from God; yet what was heretofore lawful for the Israelites, will be as lawful for us, both being obliged to the same duties of Love and Beneficence. But you may haply say, That the Evangelical Law requires an higher degree of love than the Mosaical Law did: Even this also I grant with this allow­ance, that all are not equally to be beloved, our Parents and our Children are certainly to be preferred before Strangers, and our Neighbo [...]s before our Enemies. 'Tis true, Adv. Pelag. dialog. 1. saith St. Hierom, I am commanded to love mine enemies, and to pray for my persecutors; but yet is it just that I should love them equally as I do my Neighbours and kinsmen? Is it equal that I should make no difference between my Friends and mine Adversaries? There are de­grees of Dile­ction. Surely the Laws of a well ordered Affection do command me to prefer the Righteous before the wicked, and the publick safety before the safety of any private person. Now out of the very love we bear to the righteous do we put the wicked to death; and out of our care to the publick peace, do we make war upon those that disturb it: If therefore our Saviours precepts do admit of degrees, and if the greater obligation do tye us to the stricter duty; then are we not bound to preserve the nocent, when in so doing we endanger, if not destroy the inno­cent. That of Seneca is very well known, Tam omnibus ignoscere crudelitas est, quam nulli; Lib. 1. de clem. It is as great a cruelty to pardon all, as to pardon none. Chrysostom speaking of such humane punishments as are inflicted on the obstinate, saith, that they proceed not from cruelty, but from goodness. And St. Augustine affirms, That as there is sometimes crudelitas parcens, a cruelty in pardoning, so there is sometimes misericordia puniens, mercy in punishing. Those protections, therefore, that ripen sin by giving too great encouragement to sinners, are to be re­moved: For as Totilas in Procopius speaks, Peccare, See Bo. 2. ch. 2 [...]. §. 2. & prohibere poenas peccantium in pari pono: He that commits a crime, and he that hinders a Criminal from due punishment, are alike faulty. Besides we are commanded to love our Enemies by the example of God himself, who causeth the Sun to shine and the Rain to fall, as well on the Evil as on the Good: And yet doth the same God put a manifest difference between them, visiting the sins of such as are incorrigible with heavy judgments in this life, and yet reserving much heavier for them to be inflicted in the life to come. And thus are all those Objections drawn from those precepts, enjoyning Christians to mercy, lenity, beneficence, against war and Capital punishments; easily answered. For Almighty God though he pleased to make himself known unto us principally by these Attributes of Gentleness, Long sufferance,Gods patience doth not hin­der his justice. and Patience, John 4.2. Exod. 34.6. yet do the holy Scriptures almost in every page set forth, and declare his indignation and wrath against obstinate and contumacious sinners, as Numb. 14.18. Rom. 2.8. whereof the Magistrate is designed to be the Minister, Rom. 13.4. Moses was highly celebrated for his meekness and gentleness, yet did he punish Ma­lefactors with death; and Christ himself the most absolute pattern and mirror of meek­ness and patience, being provoked by the obstinacy of the Jews ingratitude, is said by a Parable to send out his Armies to burn up their City, and to destroy her Citizens, Mat. 22.7. the like we may read Mat. 21.44. and Luke 19.12, 14, 27. And although the Roman Army were (as Chrysostom observes) the Axes and the Hammers,Chrys. in 1 Cor. 4.21. yet was it Christ himself that brought these calamities upon them, according to his own predicti­ons, as well by Parables, as plainly and expresly. Nearest unto their Master, came the Apostles themselves in imitation of his meekness and gentleness,Aug. Ser. Dom. in mont l. 1. Grat. c. 23. q. 8. who notwithstanding made use of the power given them from above, in the punishment of incorrigible sinners, as is plain, 1 Cor. 4.21. 1 Cor. 5.5. 1 Tim. 1.20.

Obj. 4 Their fourth Objection that is brought against the lawfulness of war, is extracted from Rom. 12.17.Rom. 12.17. Render unto no man evil for evil, provide things honest in the sight of all men: If it be possible, as much as in you lyeth, live peaceably with all men: Dearly Beloved, The vulgar Interpretation is, Defend not your selves: But this word is often put by Christian Authors, in this sence of Avenging: Aug. expounds this place very well, where he saith Resist not evil, lest ye de­light in revenge, which feeds the mind fat with other mens misfortunes. Vide infra Bo. 2. ch. 20. § 5. and 10. avenge not your selves, but rather give place unto wrath: For it is written, Vengeance is mine, I will repay it saith the Lord: Therefore if thine enemy hunger feed him, of he thirst give him drink; for in so doing thou shalt heap coals of fire upon his head: Be not overcome of evil, but overcome evil with good. But here also the same answer will serve, as was given to the former: For at the very same time when God impropriated to himself the Sword of Vengeance as his prerogative, saying Vengeance is mine; at the self same time were Malefactors put to death by the Magistrate, and laws prescribed for making of war, and yet it was at the same time enjoyned to the Jews to do good to their enemies (if their own Country­men) as Exod. 23.4, 5. which notwithstanding did no ways diminish either the right of making a just war, or the execution of incorrigible malefactors, wherefore neither can these or the like Precepts now (though never so much enlarged) be wrested to such a sense; much less if we consider, that the dividing the Scriptures into Chapters and Ver­ses, was not done by the Apostles, nor in their age, but long after, for the more easie quotation of the Text when fit to be brought for confirmation: so that what begins the 13th to the Romans, The first verse of Rom. 13. was annexed to the pre­cepts in the Chapter fore­going against taking re­venge. Let every Soul be subject to the higher powers; and what there follows, was annexed to those precepts foregoing, against taking revenge. But in this dissertati­on, St. Paul saith expresly, that the higher powers are constituted Gods Ministers, and the executioners of his wrath (that is as to punishments) upon those that do ill; thereby clearly distinguishing between that revenge, which the Magistrate instead of God exacts for the publick good, being a part of his prerogative; and that which every private man takes upon his enemy with his own hands, merely to gratifie his own passion, which the Apostle had a little before interdicted. For if we include in that negative precept, that Revenge that is taken by the Magistrate for the publick good, what can be more absurd than after he had charged the Romans, not at all to execute capital punishments, to have immediately subjoyned, that to this very end God had ordained the higher powers, that they in his stead, should execute even Capital Judgments upon Malefactors? for so the power of the Sword must needs signifie, if any thing.

Obj. 5 A fifth Objection is by some brought out of the 2 Cor. 10.3. Although we walk in the flesh, 2 Cor. 10.3. expounded. we do not war according to the flesh; for the weapons of our warfare are not carnal, but mighty, through God, to the pulling down of strong holds. Where by the way, we must un­derstand that by carnal weapons, are meant Riches, Glory, Power, Eloquence, and such like (as Chrysostom expounds that place) in which sence, this place is quoted to little purpose, for both the words preceding and subsequent do plainly shew, that St. Paul by the word Flesh understood his mean appearance as to the outward, which rendred him to those who looked no further contemptible. Whereunto St. Paul opposeth his own wea­pons, that is, the power committed to him as an Apostle, to compel such as were obsti­nate and refractory, which power he exercised on Elymas the Sorcerer, on the incestuous Corinthians, and on Hymenaeus and Alexander the Coppersmith. This power he denyes to be carnal, that is, weak, nay rather he asserts it to be most strong and forceable. Now what doth this belong to the rights of War or Capital punishments? yea rather on the contrary, because the Church of Christ was at that time utterly destitute of all manner of tutelage or protection from the publick powers: therefore did God for a while supply this defect by that prodigious power which began to cease, almost as soon as the Church had gained the protection of Christian Emperors; even as Manna then began to cease, so soon as he had brought his people out of the barren Wilderness into a fruitful Country.

Obj. 6 The sixth place they produce, is out of Eph. 6.12. Put ye on the whole Armour of God, that ye may be able to stand against the wiles of the Devil; out of Eph. 6.12. expound­ed. for ye wrestle not against flesh and blood (only) as the Hebrews understand it, but against Principalities, &c. In which place the Apostle discourseth only of that spiritual warfare, which Christians, as Christians, have with their spiritual enemies, and not that which Christians as men may make against men upon just grounds.

Obj. 7 The seventh place objected against the lawfulness of war, is that of St. James, From whence are Wars and Fightings among you? from James 4.1. Come they not hence, even from your Lusts that war in your members? Ye lust and have not, ye kill and desire to have, and cannot obtain; ye fight and war, yet ye have not because ye ask not; ye ask and receive not, because ye ask amiss, that ye may consume it upon your lusts. But in these words there is nothing universal, for St. James here condemns only those unnatural wars which the dispersed Jews then had a­mong themselves, whereby they were miserably shattered and torn in pieces, (some part [Page 25] whereof is recorded by Josephus) which arose from no other causes but what were unjust: the like we may see among Christians in these days, though not without remorse; where­of Tibullus,

So we often read in Strabo, how innocently they lived who contented themselves with a single and simple diet; wherewith agrees that of Lucan,

Whereunto we may add that of Plutarch, There is no War among men, In Stoicor. con­tradictionibus. but what ariseth from some vice; some through inordinate lust, others from covetousness, some through ambition, and immoderate love of Glory. Justin commending the manners of the Scythians saith,Just. de Scy. this. They affect not Gold and Silver as other Nations do: And presently after he adds, This Contentati­on of theirs begat in them so much justice, that they coveted nothing that was not their own; for there only are riches inordinately sought after, where they serve for inordinate uses. Memorable is that saying of Taxiles the Scythian to Alexander, What necessity is there that we, O Alex­ander, should make War one upon another, seeing that thou comest not to abridge us of our Water, or of our necessary sustenance; in the defence of which things only, men endued with reason make War? Much to the same purpose was that of Diogenes, Thieves and Incendiaries to Was, are never found among such as are contented with homely fare. For as Porphyry observes, That which is easily got and at small charge, much conduceth to the perpetual Piety, even of all. De non edendis animal. l. 2. Hieron. adv. Jov. l. 2. Where­as Tyrants and such as devast Kingdoms, do not raise Wars either Foreign or Civil, to feed coursely on Herbs, Roots, or Apples; but to pamper themselves with Flesh, Fowl, and such like delicious Fare. Therefore Chrysostom speaking of such as were rich and opulent, saith,Ad Patrem fi­delem. Do not Se­ditions, Wars, Combats, Bondage, Slavery, Captivity, Murthers, and innumerable other such like mischiefs and inconveniences commonly arise from these men? I may conclude these and many other such wise sayings of the best men, with that one of Polybius, Animus necessari­is contentus alio ad sapiendum magistro non eget; That mind which can be contented with necessa­ries only, needs no other Tutor to learn wisdom. Our wish therefore shall be the same with Justin's, who having commended the Scythians for their temperance, wisheth the like moderation among all Nations: Then might we hope that that Prophecy of Esay would soon be fulfilled, that our Swords should be turned into Coulters, and our Spears into Pruning-hooks; Nation would not then rise against Nation, neither should we learn war any more. For what is it that fills the world so full of blood and rapine, that the Sword devours more than those that dye by natural deaths, but only our exorbitant Lusts, whereby we are violently hurried to things unjust and dishonest. Now that which Christ sometimes said to St. Peter, He that takes the Sword shall perish by the Sword, not properly be­longing unto War in its vulgar acception, but to private quarrels (for Christ himself gives this as a sufficient reason, why we should neglect our own defence, rather than study revenge; because his Kingdom was not of this world, Jo. 13.36.) shall be more fully handled in its proper place.

IX. What the Pri­mitive Chri­stians held as to this.

When there ariseth any doubt concerning the sence of things written, we have two main helps, namely, the common practice of that Age, and the authority of the most prudent men, both which are of singular use for the right understanding of the holy Scri­ptures: According to that ancient rule, Sanctorum praxis, optimus est praeceptorum interpres; The practice of the Saints, is the best interpreter of our Saviours precepts. For it is not proba­ble, that the Apostles did commit all things so clearly to Writing, that might or did con­cern the Oeconomy of the Church; but that some things were delivered by words only: Neither is it probable, that all the Churches by them established,Concerning the ancient Fathers, three things observ­able. should quickly forget what was so delivered unto them and practised by them. Now they that dispute against the lawfulness of War, do usually justifie themselves by the opinions of some of the anci­ent Christians, against whom I have these things to urge: First, That from their sayings, nothing can be concluded more than that it was the opinion of some private men, but not Observ. 1 the general Doctrine of the Church in that Age; especially if it be granted, that those Fathers affected to be singular, and to introduce somewhat that was more sublime, than what was generally approved of by those Churches; yea and (which in those times was [Page 26] ordinary) to cloath their own Fancies with that generous Notion of an Apostolical Tra­dition, Clem. Alex. Strom. l. 7. as may be observed by Origen, and Tertullian: (so Clemens Alexandrinus saith, That it was delivered by a certain secret Tradition from the Apostles, That it was not lawful for Christians to go to Law, either before the Saints, or before the Gentiles: or for a perfect Christian to swear:Origen. Tertullian.) yet are not these Fathers constant to what they say; for Origen brings in Bees, as a Document, That it was lawful for Christians to make a just and well ordered War, as often as necessity required. And the very same Tertullian, who in another place seems to disapprove of Capital punishments, yet saith, None can deny, but that it much conduceth to the publick safety, Di Anima. that Malefactors should be punished. And again, Who, saith he, would not rather preferr humane Justice (than see a Righteous man opprest) which as the Apostle testifies, is not begirt with the Sword in vain, and which even in persecuting is Religious. So also to the Proconsul Scapula, We (saith he) do not terrifie others, neither are we terrified by others. But as we would have all men saved by admonishing them not to fight against God: So thou mayst both faithfully perform the duty that belongs to thy jurisdiction, and yet not be unmindful of that, of humanity, especially considering that ye also are under the power of the sword. And as concerning the lawfulness of War he speaks doubtfully; For in his book concerning Idolatry,De Coron. Mili­tis. he saith, It is much questioned whether Christians may take arms, or whether Souldiers may be admitted to Christianity: and in that place he seems to favour the Negative; but in another place, after he had a while disputed against the lawfulness of War, he at length distinguisheth between him that entred into Arms before he was baptized, and him that listed himself after Baptism. For saith he, Their condition is plainly otherwise, who being first Souldiers were afterwards converted to the faith, as theirs whom St. John admitted to his Baptism; or that faithful Centurion's whom Christ ap­proved of, and whom St. Peter instructed: Provided that having once embraced the Christian Faith, and being sealed up thereunto by Baptism, they either renounce the War presently, as some have done; or take special care that they do nothing therein that may offend God. Whereby it is evident, That some Christians did, or at least might continue in Arms after Baptism, which certainly would not have been permitted, had Warfare been by Christ absolutely forbidden; no more than Southsayers, Magicians, and the professors of such like prohibi­ted Arts, were permitted after Baptism to persist in their Diabolical Professions. Ter­tullian tells us, That they who professed such Arts as the Christian Discipline did not allow of, were not to be admitted into the Church of Christ. De Idol. De fide & op. Ep. 65. And St. Aug. instances, amongst others, in common Whores, Bauds, and Stage Plaiers, none whereof until they had removed their profes­sions Observ. 2 would he admit unto the Sacrament. Of the same opinion also was St. Cyprian.

War declined not as in it self unlawful, but to avoid Acts. repug­nant to Chri­stianity. As the Jews did.Secondly, We may observe, that in the Primitive times, Christians did either disap­prove or avoid the Wars, not because it was in it self unlawful, but in respect of some circumstances incident to those times, which would not admit of the exercise of War without the doing of some acts which were repugnant to Christian Religion. Thus Ter­tullian forbids a Christian to go to War, not that it was unlawful, but because the Disci­pline of War did sometimes enjoyn such acts, as the Discipline of Christ could not allow of: In the Epistle of Dolobella to the Ephesians, as it is recorded by Josephus, the Jews desire to be exempted from all military expeditions, not simply as being unlawful, but that being mixt with strangers, they could not sufficiently perform the Rites and Ceremonies of their own Law, nor would their Religion permit them to make long marches, or to perform acts of Hostility on the Sabbath day: and the same Josephus tells us that for these very reasons, the Jews got leave of L. Lentulus to be discharged the Army: The same Historian also relates, that the Jews being banished Rome, some betook them­selves to the Wars, others were punished for refusing to take Arms in reverence to their Country Laws, and for the reasons above mentioned; whereunto they sometimes added a third, namely, Because they thought it a sin to make War against their own Counrty-men, espe­cially being persecuted for observing their own Country Laws. Jos. Ant. l. 11. Lib. de Idol. But being freed from these inconveniences they refused not to take Arms, and that under foreign Kings, but still under condition, that they might enjoy their own Laws, and worship God after the manner of their Fore-fathers. Unto these dangers that the Wars exposed them unto may be added, that which Tertullian objects, That they were sometimes commanded to swear by the Gods of the Gentiles, De Coron Mi­litis. Mars, Jupiter, &c. Which unto Christians was a very great scan­dal, as well as to the Jews. Whereupon the same Tertullian, in another place thus Apo­logizeth for them, Shall, saith he, a Christian watch to guard the Temples of those gods whom he hath renonunced? Shall he sup there where he is forbidden to eat? Shall he defend those spirits by night which he exorciseth by day? And a little after, How many other great offences may be seen in military duties, which cannot be otherwise interpreted, but as breaches of our Christian Laws.

Observ. 3 A third thing observable is this, That many Christians in the primitive times were infla­med with so great a zeal to an holy life,The Fathers gave it as their Counsel but not as Christs precept. that they oft-times embraced the Godly Coun­sels [Page 27] of wise-men, with the same fervor of devotion, as if they had been the commands of Christ. Christians, saith Anaxagoras, will not contend in judgement with those that rob them. And Salvianus was of opinion, that it was the command of Christ, that we should rather yield up our own right, than prosecute the Law for it. But this, if taken generally, may be imbraced as good and Fatherly Counsel tending to Evangelical perfection, but was never digested into a Christian precept. In like manner the Fourth Council of Car­thage decreed That a Bishop though provoked, should never sue for things transitory. Vid Amb. de Off. lib. 2. c. 21. Greg. M. l. 2. Judict. 11. ep. 58. So most of the ancient Fathers condemned all Oaths, as unlawful, without any exceptions; where­as St. Paul himself to gain belief in a serious matter, did swear. A Christian in Tatian, refused the Praetorship; and Tertullian tells us that a Christian should not affect Magistracy. Lactantius Lib. 5. c. 18. also denies that a just man (and such he would have a Christian to be) ought to make War; but denies also that he should navigate the Seas. How many of the anci­ent Fathers do disswade Christians from Second Marriages? yet no wise man will from thence conclude, that any of these are in themselves unlawful: for though they are all of them ex­cellent Ornaments to our Christian profession, and very acceptable to God; yet are they not imposed on us by the necessity of any Law. (Nay farther, admit that there were some places of Scripture which did seemingly restrain the political use of the Sword, yet since it hath been accounted by all good men a means sufficient for the avoiding of person­al inconveniences, (as mutilation, &c.) to admit of any sense rather than the literal, as of the plucking out of the right eye, the cutting off, of the right hand, &c. Much rather should those places of Scripture, that are urged against the power of the Sword, admit of any sense; than that it should be thought, that Christianity should destroy that, which is the chiefest instrument of justice, the only curb to vice, and one of the main pillars of humane Society. For if it be granted, that the World cannot subsist without Government, nor any Government without Laws, and that the Laws themselves signifie but little without Coercion: then it is as certain that that Religion cannot be good, that holds forth such doctrine whose consequence will destroy all Government; and therefore such a doctrine is to be supprest with all care and prudence, as the greatest pest and nusance to a Commonwealth: and those very men that did first intend by this doctrine to exauctorate Princes and Magistrates, would (it is to be feared) be the very first, that would take up Arms to abett and establish their own wild and exorbitant fancies: And those Princes who suffer themselves to be deluded by them, will quickly find the consequences to be inconsistent with Government; when being disarmed, they shall be disabled to defend themselves against their Neighbours, to suppress mutinies and seditions at home, or to give that protection unto their own subjects against rapine and violence, which in honour and Conscience is due unto them. But let these suffice to dissolve those objections that are usually brought out of holy Writ against the lawfulness of War; and now let us see what may be brought to confirm our opinion, namely, That all War is not unlawful.

And here in the first place, we may alledge many Authors and those more antient,Arguments proving some Wars lawful who hold, That Christians may lawfuly put to death incorrigible Malefactors, and conse­quently may make a just War; of which Clemens Alexandrinus shall lead the van, A Christi­an, saith he, being called to be a Supream Magistrate, as was Moses, is to be unto his Sub­jects a living Law, encouraging the just with rewards, and restraining the unjust by severe pu­nishments. And in another place describing the habit of a Christian, he saith,Invitis pedi­bus. That it would become him to be unshod unless he be a Souldier. In those Constitutions, that are fathered upon Clemens Romanus, we read, That every putting of men to death is not un­lawful: but that only which destroys an innocent person, yet so notwithstanding that the Magistrate alone is to determin who are innocent. But setting aside these private authorities, let us pro­ceed to those that are publick, that is, of the Church, which in this case is of greatest moment. And this I affirm, That no man was ever rejected from Baptism, or Excom­municated the Church because he was a Souldier; which certainly ought to have been done, had War been in consistent with the precepts of the new Law.Const. l. 8. c. 32. The same Author else­where sets down, who anciently were to be admitted to, and who were to be rejected from Baptism; Let the Souldier, saith he, that desires Baptism be instructed, to abstain from wrong doing, and from oppression, and to content himself with his pay: If he be willing to obey, let him be admitted. Tertullian in his Apology, speaking in the person of Christians, saith, Navigamus & nos, vobiscum, & militamus; We both sail and fight together with you in the same Fleet. A little before he had said, We, though strangers, do notwithstanding supply all your places and Offices, we fill your Cities, Islands, Castles, Towns, Councils, yea, and your very Camps. And in the same book, he tells the Emperour M. Aurelius, That the prayers of his Christian Souldiers had procured from God, Rain in the time of Drought. And in his book, De Corona, he commends the Gallantry and Magnanimity of that Souldier, before all his brethren, that had thrown away the Garland when he had won it; inti­mating unto the said Emperor, that he had many other such Christian Souldiers. Where­unto [Page 28] we may add, That some Souldiers there were that endured Torments even to death for the Christian Faith; and were therefore worthily admitted by the Church to the same honour with other Martyrs, amongst whom he makes mention of three of Pauls Compani­ons, one Cerealis under Decian, Marinus under the Emperor Valerian, 50 Souldiers un­der Aurelian, Victor, Maurus, and Valentinus with diverse others. Cyprian concerning Laurentinus and Ignatius, both African Souldiers, writes thus, They were once Souldiers fighting under secular Princes, but they were also true Souldiers of God when by the confession of their faith in Christ, they vanquished the Devil, and by their invincible patience under the Cross were ennobled with the Crown of Martyrdom. Whereby it is plain what esteem the Primitive Christians had of Souldiers, even before any of their Emperors under whom they served, became Christians. And if the Christians of those times did express an un­willingness to be spectators at the execution of Capital punishments; it is not to be won­dred at, considering that those punishments were but too frequently executed upon their fellow Christians: especially if we add thereunto some grains of allowance, for that the Roman Laws were far more severe and cruel, than would consist with Christian Lenity: As sufficiently appears by that one Silanian Decree of the Senate; the Rigor whereof was somewhat mitigated by the Emperor Adrian, as Spartianus Spartianus. records it. Amongst which severe Laws we may place that which forbad the Testimony of any servant to be taken unless he were tortured. But after that Constantine the Great began not only to ap­prove of, but to advance Christianity, even then also were Capital punishments frequently executed. For even Constantine himself (amongst many others) enacted this Law of sowing up of ParacidesParacides. in a sack, which is yet extant in the Code, under the Title of Mur­therers of their own Parents or Children; though he was otherwise so remiss in punish­ing, that by several Historians, it was imputed unto him as a Blemish. Yet Zonaras gives this Testimony of him, That he was very merciful to such as reformed their evil lives: for he would often say, Abscindendum est membrum aegrotans ac putridum, ne sana contagio cor­rumpat, non id, quod aut sanatum jam sit, aut sanescat; That member that is putrid and in­curable is to be cut off, lest the sound should be infected, but not that which is either healed, or healing. Besides Constantine had a multitude of Christians in his Army, and (as Histori­ans tell us) had the name of Christ embroydered on his Banners, and from him it was that the Military Oath was changed into that form extant in Vigetius, namely, By God, by Christ, and the Holy Ghost, and by the Majesty of the Emperor, who according to Gods Ordinance is to be beloved, and reverenced by all mankind. Neither was there at that time any one Bishop (that we read of among so many that were great sufferers for Religion) that did ever reprove Constantine for putting Malefactors to death, or for making of War; or that did upon the account of Religion, deterr Souldiers from their Military duties, though many of them were severe Disciplinarians, sparing neither Prince nor people, that were defective in their duties. Such was in the Reign of Theodosius the Emperor St. Ambrose, Serm. 7. who thus declares his opinion concerning War, Non Militare Delictum est, sed propter praedam Militare, Simply to go to War: is no sin, but to fight for spoil and plunder is wicked. So likewise in his Offices, That force whereby either our Country is defended from our enemies by War, or the weak and innocent defended at home, or our Associates from Pi­rats and Robbers, is perfect Justice. This Argument is of so great force, that I shall need no other. And yet I am not ignorant that sometimes Bishops and other good Christians have often by their Intercession turned Capital punishments, into Pecuniary Mulcts, or some lesser punishments not reaching to life: Officium sacerdotis est intervenire pro reis; It is the duty of a Priest to interceed for the guilty, saith Aug. And there is a right introdu­ced by Custom, That they that flee to the Altar for Sanctuary, are not to be delivered up until faith be given for the saving of their lives; and that such as were for misde­meanors delivered to Prison, should at Easter be freely released; but he that throughly perpends these and such like Customs, shall find, That they proceed rather from minds full fraught with Christian Charity, which watcheth all opportunities and occasions to do good, than from minds quarrelling at the equity of Capital punishments: whence it was that the priviledges of those times and places, yea and the very intercessions themselves were moderated with some exceptions, as we may learn by Cassiodore. But here some will object against us the 12th. Canon of the Council of Nice, Lib. 11. c. 40. 12 Can. of Nicen Coun­cil. which sounds to this sence, If any being by the grace of God called, shall first express their faith by deserting the War, and afterwards returning to their vomit shall by money or favor, seek to be re-admitted into the War; these after the three years allowed them to hear the word, shall remain among the Penitentials for ten years. But in this case a strict observation must be taken, how such persons stand af­fected, and what fruits of Repentance they bring forth; for whosoever among them shall shew forth their sincere conversion by fear, by tears, by Patience and good works without dissimu­lation, these fulfilling their three years of hearing shall at length communicate in prayers, and afterwards it shall be lawful for the Bishop to deal more tenderly with them. But if any of [Page 29] them shall bear it but indifferently, and shall think that their very entrance into the Church is suf­ficient, these shall fulfil their whole time. Whereunto I answer, that by the time of 13 years Penance we may collect, That the sin was neither small nor dubious; for so great a pu­nishment must needs be inflicted for some Crimes that were both to God abominable, and to all good men scandalous, which without question was Idolatry. For the words preceeding in the elventh Canon do manifestly referr us to the times of Licinius, which gives a very great light to the understanding of the sense of this Canon. This Licinius as Eusebius relates, in his War against Constantine, Hist. Eccl. [...]. 10. c. 8. first turned all Christians out of their houses, and made sale of their goods; then drew out all the Christian Souldiers and Offi­cers both out of his Armies and Cities from the rest: and then commanded, That unless they would of their own accord sacrifice to Devils, they should all of them be cashiered from their Offices. (Which fact of his was afterwards imitated by Julian,) whereupon many renounced their commands, and among them, one Victricius; so did 1104 more in Armenia under Diocle­sian, concerning whom, there is honourable mention made in our Martyrologies: and so in Aegypt did Menna, and Hesychius. So also in the times of Liciuius, did many re­nounce their Commands, amongst whom was Arsacius, mentioned among the Con­fessors, and one Auxentius afterwards made Bishop of Mopsuestia. Now they, that out of tenderness of Conscience had formerly renounced their Commands, had no pos­sible means to be re-admitted under Licinius, but by a publick Abjuration of the Christian Faith: wherefore as they that were so admitted, committed much the greater sin (being against knowledge and Consci [...]ce) so they deserved a much greater punishment, than those menti [...]ed in the foregoing words of the Canon, namely, that without any danger either of life or goods had renounced their Christianity. But to inter­pret this Canon so generally, as if it comprehended all manner of going to War, is infinitely against reason. For the same Historian testifies, That many of them that under Licinius had laid down their Arms, and whilst Licinius Reigned, did never re­assume them, because they would not abjure their faith in Christ, being by Constan­tine left to their own choice, were upon their request, re-admitted. There are like­wise, that urge against us the Epistle of Pope Leo, where it is said to be against the Ecclesiastical Canons to return into a Secular War, after the Act of Repentance. But here we must understand, That from Penitentiaries as well as from Priests and Monks, there was required a more strict, and austere course of life, than what was required from other Christians: That they might be as great examples to others, of Contrition and Humiliation; as they had been before, of prevarication. For as Leo well observes, Illicitorum veniam postulantem, oportet etiam multis licitis abstinere; It is but just that he that begs pardon for his unlawful acts, should abstain from some things otherwise lawful. So in an Epistle wrote by some Bishops to King Lewis we read, Quilibet tanto à se licita de­bet abscindere, quantò se meminit & illicita perpetrasse; Every man ought so far to abridge him­self of things lawful, by how much he remembreth that he hath committed some things un­lawful. So in those ancient Customs of the Church which to gain the greater reve­rence are commended unto us under the name of the Apostles Canons, It is decreed that no Bishop, Priest or Deacon should addict himself to the War, so as to retain the dignity of both Functions, both Civil and Sacerdotal; But leaving unto Caesar the things that are Caesars, they should give unto God, the things that are Gods. Whereby it appears that they who were not thought worthy to be admitted to Ecclesiastical dignities, were not in­terdicted those that were Military: with this also, That none who after Baptism had obtained any Office Civil or Military, could be admitted into the Clergy. As may also be collected from the several Epistles of Syncius, Innocentius, and from the Toletan Council. For Clergy men were not chosen out of any sort of Christians, but out of such as were likely to be exemplary unto others in austerity of life and manners. Be­sides upon Military Officers, as also upon some Civil Magistrates, there lies a per­petual obligation: But such as put themselves into Holy Orders, ought not to be en­tangled with any other care, nor diverted by any other daily Labour. For which cause, it was provided by the 6th Canon, That no Bishop, Priest or Deacon should take upon them, any secular imployment, nor thrust themselves into any publiclk Office. And by the 6th. Canon of the African Council,Can. Apost. 6.8. Vid Ep. Hier. ad nepot. They were forbidden to be Sollicitors of other mens affairs, or to defend other mens causes. But that which gives the greatest reputation to our opinion is, the judgement of the Church which we have set down in the third Canon of the first Council of Arles which was held under Constantine: The words sound thus, Concerning those that cast away their Arms in the time of peace, it pleaseth the Synod, that they should be debared from the Communion: that is, They that lay aside their Arms when there is no persecution that threatens them, for by the word, Peace, the Primitive Christians understood only a vacancy from persecuti­on, as appears by Cyprian and others; Nostrae paci, quod est bellum quam persecutio? As to the peace of the Church, What greater War can there be than persecution? Tertul. So St. [Page 30] Cyprian, Cyprian. when God began to give peace unto his Church; That is, when he freed it from Persecution. Next we have the example of Julians Souldiers, who were no mean proficients in the School of Christianity; for they were ready to testifie their faith in Christ by the effusion of their blood, of whom St. Ambrose speaks thus, The Em­peror Julian though an Apostate, yet had many Christians that fought under his Banner; to whom when command was given to march against the enemy in defence of their Country, they readily obeyed: But being commanded to march against the Christians, then they acknow­ledged no Emperor but the King of Heaven. Such also were long before them the Thebaean Legion, which in the Reign of the Emperor Dioclesian was converted to the Christi­an Faith, by Zabda the Thirtieth Bishop of Jerusalem, which Legion did afterwards leave behind them a singular pattern to all future Generations of Christian patience and con­stancy; whereof I shall have occasion to speak more at large hereafter. It shall suf­fice in this place to rehearse that excellent speech they made to the Emperor, which doth both solidly, and summarily represent unto us the Duty of a Christian Souldi­er: Against any Foreign Power we freely offer our hands, which yet we dare not embrew in the blood of Innocents. Our Arms which have been long practised in suppressing vice, and in vanquishing Foes, never yet knew how to oppress the Righteous, or to cut the Throats of our Neighbours and fellow-Citizens. When first we engaged in War we remember, it was to pro­tect and not to destroy them: we have hitherto fought for Justice, for Piety, for the defence of Innocence: For these prizes we have slighted all dangers, we have fought for the defence of our faith; which should we have broke with God, How canst thou, O Emperor, expect that we should keep with thee? Basil also gives this Testimony of th [...] Primitive Christi­ans, That their Ancestors never accounted that execution that was done in War as Murther; but alwaies held them excused, that fought for the defence of Chastity and of Piety.

I. War divided.

THE first and most necessary division of War is this, That some are Publick, and some Private, and some mixt. Publick is that which is made by publick Authority; and Private is that when the Authority is so; and mixt when it is in part Publick, and in part Private: and First, Let us treat of that which is Private, as being most ancient, That by the Law of Nature some Private War may lawfully be waged is, as I suppose, sufficiently proved by what hath been already said, where it was shewed, That to repel force with force, was no ways repugnant to Natural equity. But the Question will be, Whethersince the erection of Courts of Justice, it be now lawful to repel force with force? Whereunto I answer, That although Courts of Ju­dicature were not instituted by Nature, but by humane Authority: yet doth natural reason, and Common equity instruct us, That it is more agreeable to common Honesty, and to the conservation of peace and tranquillity amongst men, that all differences should be publickly scanned, and determined by persons that are unconcerned; ra­ther than by them, who being blinded with self-love, do oft-times mistake right for wrong, and will do that only which seems good in their own eyes: Non est sin­gulis concedendum quod per magistratum publice possit fieri, Paulus Juris. cons. ne occasio sit majoris tumultus faciendi; That is not to be granted to every private man, that may be done publickly by a Ma­gistrate, lest for every petty injury men run into Tumults. And hence it is,Cassiod. l, 4, Var. Ep. 4. saith King Theodorick, That so great a reverence is due to the Law, that no man ought to revenge himself with his own hand, or by the suggestion of his own passions. For if all differences may be de­termined by plan force, wherein would a calm peace differ from the tumults of War? And therefore the Laws call that Force, When any man takes that which is his due with his own hands, without the determination of a Judge.

II. That Tribu­nals being e­rected, all war is not unlaw­ful.

Most certain it is, That the Licence which before Tribunals were established publick­ly, was permitted, is since much restrained: And yet in some places the same Licence still remaineth, namely, where Judgment cannot be had against offenders. For the Law in prohibiting a man to take his own, unless it be judicially, doth tacitely imply that it be in such a place, and at such a time where an ordinary course of Justice may be had.

Now Judgment ceaseth either for a while only, or for continuance: For a while, when the Judge cannot be so long waited for without certain danger and damage. Servius upon these words of Virgil, Injicere manum parcae, The Fates have snatcht him hence, tells us, That the Poet makes use of a Phrase borrowed from the Law: for it is called Injectio manus, the snatching away of a thing, as it were by force, when without attend­ing the warrant of Authority, we suddenly seize upon something that is our due, which is usually done when the Laws do for a while cease, And sometimes there is a total and continued cessation of Judgment, and that either by Right or in Fact. By Right, as in pla­ces that are desert and unoccupied, on the Seas and in Islands not inhabited, and in any other such places wherein are not civil Societies. In Fact, as when Subjects do not regard the Sentence of the Judge, or the Judge publickly refuses to examine the case. Now what we said before, namely, that since publick Judicatories were established, all Private Wars are not repugnant to the Law of Nature; is clearly evinced by the Law given to the Jews,Exod. 22.2. where God gives this charge by Moses, If a Thief be found breaking up (i. e. by night) and be smitten that he dye, there shall be no blood shed for him; but if the Sun be risen upon him, there shall be blood shed for him. Certainly this Law so accurately distin­guishing of the time when the offence was committed, seems not only to induce an im­punity, but serves to explain even the Law of Nature; being not so much grounded on any one particular Divine Precept, as indeed upon common equity, which guided other Nations also to do the like.Solon's Law. The old Attick Law was this, If any man shall steal in the day time, to above the value of fifty Drachmaes, let him be tryed by eleven men: But if a man shall steal to the smallest value in the night, he may lawfully be killed. This ancient Law of Solon doubtless occasioned that of the twelve Tables among the Romans. Si nox furtum faxit, Vide infra Bo. 2. ch. 12. si furem aliquis occisit, jure caesus esto; If any man shall kill a Thief rob­bing in the night, he shall be held innocent. So by the Laws of all Nations that as yet we have known, He that by Arms shall defend himself against him that attempts to take away his life, is accounted guiltless; which so plain a consent doth evidently assure us, that there is nothing in it repugnant to the Law of Nature.

III. Neither is it repugnant to the Evangeli­cal Law.

But whether this private war be justifiable by the more perfect Law of the Gospel, is somewhat more doubtful: I dare not but grant that Almighty God, who hath a much greater power over lives than we have, might have imposed upon us such an unlimited patience, that even privately, in a case of imminent danger, we ought rather to be kil­led than to kill. But whether it be his pleasure thus strictly to tye us up, is the thing in question. There are two places of Scripture that seem to favour the Affirmative, which we quoted above when we handled the general question: The former was that in the fifth of Mat. v. 39.Mat. 5.39. Resist not him that doth thee an injury: And the latter that in the twelfth to the Rom. v. 19. Dearly Beloved, Avenge not your selves; which the Latin Translation renders, Defend not your selves. But a third may be added, namely that of Christ to Peter, Mat. 26.52. Put up thy Sword into the Sheath, for they that take the Sword shall perish by the Sword. Some there are likewise that urge the example of Christ himself, who dyed for his ene­mies, Rom. 5.8, 10. Neither are there wanting among the Ancients, some, who although they do not disallow of publick War, yet believed that all private, even that which is defensive was forbidden. Some places out of St. Ambrose for war we alledged above, but many more and much clearer, and more generally known, may be produced out of St. Augustine: In Luc. 10. But yet the same Ambrose in another place saith, That haply therefore Christ said unto Peter, when he shewed him two Swords, It is enough: As if till the Gospel came it had been lawful, that so there might be, as in the Law the doctrine of Equity, so in the Gospel the doctrine of Verity. De off. l. 3. c. 3. And in another place he tells us: That a Christian though assaulted by Rob­bers, ought not to strike again; Ne dum salutem defendit, pietatem contaminet: Lest whilst he seeks to preserve his own safety, Lib. 1. de lib. Arb. 15. he sin against piety. And St. Augustin himself speaking of Thieves and Robbers, saith, Legem quidem non reprehendo, qua tales permittit interfici, sed quomodo istos qui intersiciunt, defendam, non invenio. The Law that adjudgeth these men to death, Ep. 154. ad Publ. Cap. 43. & 55. I disallow not; but how to justifie the Executioners, I find not. And in another place, But as to them that give advice, that some men are to be put to death, lest others by them should be destroyed, I cannot subscribe, unless he that kills him be either a Soldier or a publick Execu­tioner, who doth it not by his own, but by publick Authority. And of the same opinion was Basil, as appears in his second Epistle to Amphilochius, whereunto we may add the last Canon of the Council of Orleans, C. 13. q. 2. cited by Gratian. But the opposite opinion, as it is more Catholick, so it seems to be more agreeable to truth, namely, That Christians are [Page 33] not obliged to such an height of patience: We are indeed commanded by the Christian Law, to love our Neighbours as our selves, but not above our selves; so that when we are both of us involved in the same, or in equal danger, we are no where forbid to preser our own safety before anothers; as we have already proved by the Rules St. Paul gives to Christian Beneficence, and which Cassiodore in the duties or offices of Friendship likewise confirms. There is, saith he, neither Law nor Reason, Cass. de Ani­citia. that can oblige us to redeem another mans soul with the loss of our own; or to procure the preservation of his body (setting aside our hopes of eternal salvation) with the certainty of our own ruine. But if any man should object, that we are bound to prefer our selves before others in dangers that are equal, but not in such as are unequal; and therefore I ought rather to give up mine own life, than to suffer him that invades me to fall into eternal damnation. To this we answer, That it is pro­bable that he that is assaulted may stand in as much need of time to repent in; and that the Aggressor may also have space sufficient before he dye, to do the same. Besides, That danger into which a man wilfully casts himself, and out of which he may (if he please) redeem himself, seems not in any Moral Judgment to be much esteemed.Some of the Apostles in Christs pre­sence travel­led with Swords. Cer­tain it is, That some of the Apostles even to the last time, and in the presence and in the very sight of Christ, seemed to travel begirt with Swords; and so also did other Galilaeans journeying out of their own Country towards Jerusalem, (the High-ways being much in­fested with Thieves, as Josephus informs us;) So also did the Essenes, the most harmless of all men, as the same Historian records it. And hence it came, That when Christ told his Disciples that the time was at hand, when they should sell their Vests to buy themselves Swords, Luke 22.36. some of the Apostles readily made answer,Luke 22.36. That there were in their company two Swords: But at that time there were none in that company but the Apostles; so that it must needs follow that some of them did go, even in Christs own presence, armed with Swords. Besides, what Christ then said, although in truth it was not a Precept but a Prophecy, foretelling those many dangers that were then at hand, (as appears by that opposition which these words have unto those in the 35th verse, which speaks of the first times which were secure and prosperous times, wherein they needed neither Money nor Swords, whereas in these later times that were approaching, they should have need of both) yet was it such, as seems to be taken from that which was then wont to be done, and which the Apostles might lawfully do. It was well said of Cicero, Gladios habere certe non liceret si uti illis nullo pacto liceret; Surely it were utterly unlawful for Christians to have Swords, if it were altogether unlawful for them to use them.

But as to the other Objection taken from Mat. 5.39. namely, Object. an∣swered. 2 Mat. 5.39. expl. That we resist not him that doth us an injury; It is no more of universal obligation than that which follows, Give unto every man that asks: Both which do certainly admit of some exceptions, otherwise we should too far neglect our selves: Nay that precept of giving to every one that asketh, hath nothing subjoyned unto it to restrain it, but is left to the judgment of common equity; whereas this of non-resistance, Private war in our own defence law­ful. seems to be both explained and restrained by the subsequent instance of a Box on the Ear; that we may understand that that precept doth then oblige us, when the injury done us is but slight and easily born, such as is a blow on the Cheek, or somewhat that is like unto it; which rather argues a contempt in the striker, than infers any considerable damage to him that is struck: For otherwise it had been much better to have said, Resist not him that injures thee, no though he should attempt to kill thee. And as to those words of St. Paul to the Romans, Rom. 12.19. expl. Avenge not your selves, the word [...] there used, doth not properly signifie to defend, as the Latin Translation renders it, but to revenge, as appears by other places where the same word is used: As Luke 18.7, 8. And shall not God avenge his own Elect? So also, Luke 21.22. These be the days of Vengeance: The like we find 2 Thess. 1.8. 1 Pet. 2.14.Rom. 13.4. 1 Thess. 4. [...]. And this the connection of the words will plainly shew, for the words preceding are these, Requite no man evil for evil: which is the proper description of Revenge, but not of Defence. Besides, St. Paul strengthneth this advice with that place of Deut. Vengeance is mine, I will repay it: which must necessarily be understood of returning injury for injury: For neither can the Hebrew word there used be in propriety of speech, nor the congruity of the Sentence in that place possibly understood of a bare Defence.

Now as to that which was said to St. Peter, Put up thy Sword, &c. Put up thy Sword, expl. It doth indeed pro­hibit the use of the Sword at that time for revenge, but not at other times in cases of necessary defence: Neither indeed had Peter at that time any need of Defence; for Christ had already interceded for his Disciples, saying, Suffer these to go away, Jo. 18.8, 9. Nor had Christ himself any need of St. Peter's Sword: For thinkest thou, saith he, that I cannot now pray to my Father, and he shall send me more than ten Legions of Angels? Nei­ther would he then be defended, for he thus infers, Shall I not drink of the Cup that my Father hath given me? ver. 11. And so in Mat. How then shall the Scriptures be fulfilled, that thus it must be? Whence we may conclude, That St. Peter was at that time trans­ported [Page 34] with an eager desire of Revenge, (being very hot and zealous) and not of De­fence only: Whereunto we may add, That Peter did make use of his Sword against those that came armed against Christ with publick Authority. Now whether any case will justifie our resistance of those that are thus armed, is a peculiar question hereafter to be particularly handled: And whereas Christ adds these words, They that take the Sword shall perish by the Sword; it was either Proverbially spoken, to shew that blood requires blood, and consequently that the use of Arms was never without peril; or rather as Origen, Patience to be preferred be­fore Revenge. Theophylact, and others interpret the place, it shews that we should not be too rash in taking the Sword of Vengeance out of Gods hands, who will certainly in his own time reply blood with blood. And in this sence it is expresly said, Apoc. 13.10. He that leadeth into Captivity, shall go into Captivity; He that killeth with the Sword, shall be kil­led by the Sword; Here is the patience and faith of the Saints; very consonant whereunto is that of Tertullian, So fit is God to be trusted with thy patience; that if thou shalt commit thy sufferings unto him, he will be thine Avenger: If thy grief and pain, he will be thy Physi­cian; If thou trust him with thy Death, he will raise thee up again: O how great a power hath patience, that is able to make God himself to become our Debtor! Besides, In these words of Christ, there seems to be coucht a Prophecy of those punishments, which God would take of the blood thirsty Jews by the Sword of the Romans. But as to the example of Christs dying for his enemies, it may be thus answered: Though all Christs actions upon Earth were full of vertue and goodness, and such as may be (so far forth as humane frailty will permit) laudably imitated by us, and that cannot want their reward; yet were they not all such as were done, either in obedience to any Law; or being done, are obliging, as a Law unto us. For that Christ dyed for the wicked, and for his enemies, was not by the Command of any Law, but by a special agreement and Covenant with the Father, who had promised that for his so doing, He would not only exalt him in glory, far above all Principalities and Powers in Heaven or Earth; but that he would build him also a Church, an holy Seed, that should endure for ever, Esay 53.10. But this fact of Christ was other­wise singular, and not to be parallel'd, as St. Paul testifies, Rom. 5.7. And Christ indeed bids us to expose our lives to peril, yet not for every man, but only for the Brethren, that is, for those that profess the same Faith with our selves, 1 Jo. 3.16.

The Objecti­ons out of the Fathers an­swered.And as to those Sentences that are quoted out of the Fathers, they were partly good Fatherly Counsels, and Exhortations to an holy life, tending to perfection rather than any strict precepts to oblige us; and partly their own private opinions, rather than the doctrine of the whole Church:Can. 45. For in those ancient Canons called the Apostles, He was to have been excommunicated, that in a Fray had slain his Adversary at the first blow for his too much heat or rashness. And St. Augustin himself whom we before quoted in the de­fence of the contrary opinion, seems notwithstanding to approve of this in his 84th question upon Exodus: Christians may bear Arms for De­fence, not for Revenge. So also doth St. Ambrose, O Lord, saith he, Why dost thou command me to buy a Sword, if thou forbiddest me to strike? Why dost thou bid me to have one, if having it, I may not use it? Ʋnless perhaps thou wouldst have us to be armed for defence, but not for revenge.

IV. Solemn War what it is.

Of publick Wars some are solemn according to the Law of Nations, and some are less solemn: That which I here call solemn, is usually and for the most part called just, in the same sence as a Testament is being opposed to a Codicil; or as a solemn Marriage between such as are free, compared to a Clandestine between such as were bond: Not that it was not lawful to bequeath Goods by a Codicil, or for a Servant to have his mar­ried woman with him in the same house; (for even among Freemen there are some mar­riages not just,Paul. Sent. l. 2. c. 74. tit. 19. L. si uxor D. ad l. Juliam de A­dult. and some children not just, as Paulus the Lawyer notes, and some liberty not just, as Seneca observes:) But that a solemn Testament and a solemn Marriage, hath by the Civil Law some Rights and Effects peculiar to themselves, which others have not; which is very useful to be observed: For that many misunderstanding the word just, condemn all wars as unrighteous and unlawful,Sen. de vit. be­at. c. 24. S [...]et. Octav. c. 40. that are not solemn. Now that a war be solemn according to the Law of Nations, two things are requisite: First, That it be on both sides made by the Authority of those who in their respective Cities have the So­veraign power: And next, That it be waged with such Rites and Formalities as the Law of Nations requires, whereof we shall discourse in its proper place. And because these are joyntly requisite, therefore the one without the other is not sufficient: That pub­lick war which we call less solemn,Less Solemn. may be both defective in these rites, and also be made against private men, and that by the Authory of any Magistrate. And truly if we consider the thing it self without regard to the Civil Law, every Magistrate as he is en­trusted with the peoples safety, so (in case any violence be offered) is he entrusted with the exercise of that power and jurisdiction, and consequently hath a power to make war. But because by war the whole City is endangered, therefore it is provided by the Laws of almost all Nations, That no war be made but by the Authority of him who hath the supreme power in that City.De legibus ult. Such a Law we find extant in Plato, and by the Roman [Page 35] Laws, whosoever should presume to make War, list Soldiers, or Muster an Army,He t [...]at lusts Soldiers, or Musters an Ar­my without warrant from his Prince, is a Traitor. with­out special warrant from the Prince, was held guilty of Treason: Or as the Cornelian Law, instituted by L. Cornelius Sylla, saith, without warrant from the people, placing the Soveraign Power in them only. There is an ancient Constitution extant in the Code of Justinian, made by Valentinianus and Valens, which runs thus: Let no man presume to raise an Army without special warrant, or to make War without our knowledg and advice. Pertinent whereunto is that of St. Augustin, That Natural Order which is best accommodated to the preservation of humane peace, requires that the Counsel and determination of raising of War, should remain in the power of Princes. Now as all other Rules, be they never so general, must admit of equity to be their Interpreter, so must this Law. First then, It cannot well be doubted, but that it is lawful for him to whom the Lieutenancy of any City is commit­ted, to reduce into obedience, by his Officers, some few Rebels; so as it require not any great force to do it, nor much endangers the City wherein he presides. Or in case the danger threatning the City be very great, and so imminent that it will not admit of so much time as to consult the Supreme Magistrate, pure necessity will plead strongly for exemption. Upon the presumption of this Right it was, that L. Pinarius Governor of Enna, a Garrison in Sicily, being certainly informed that the Townsmen had design­ed to revolt to the Carthaginians; preserved the said Town, by putting to death the chief Conspirators. Nay even beyond these cases of Necessity, If a King do neglect to revenge the injuries of his Subjects, Franciscus de Victoria is so bold as to transfer the right of making War upon the Citizens: But herein he walks by himself, for by all ju­dicious Writers this opinion is rejected as dangerous.

V. Whether a War waged by a Magi­strate, that hath not an Authority from the Su­preme power, be publick? And when?

But by what event soever it happens, that the power of making war is manifestly in inferior Magistrates, whether such a War may be said to be publick, Lawyers agree not: For some affirm it, and some deny it: Surely if by publick we understand no­thing else but what is done by the right of a Magistrate, such Wars are publick: And therefore he that in such a case shall set himself in opposition to the Magistrate, incurs the punishment due unto those who behave themselves contumaciously against such as are set over them. But if we take the word Publick in the better fence, for that which is so­lemn, as without question it is usually taken; then are not such wars publick: For to the legitimating of such a War there must go, as well the judgment of the Supreme Authority, as other Rites and Ceremonies which the Law of Nations have made neces­sary. Neither doth it at all stagger me that even in such wars, the goods of such as make resistance are lawful prize, and given to encourage the Soldiers; for this doth not so peculiarly belong to a solemn war, but that the same may be done in any other.No Inferior Magistrate can make a So­lemn War, without spe­cial warrant. Be­sides, It frequently happens that in Empires of large extent, the Lieutenants of Provin­ces are impowered by their Prince to begin a War; which if so, then it is all one as if the Supreme Magistrate had immediately done it: Quod faciendi jus quis alii dat, ejus ipse auctor censetur; Look, What right any man gives to another to do, that he himself is reputed the Author of. But that which admits of a larger dispute is, Whether in case no such power be given, the subordinate Magistrate by conjecturing at the will of his Prince, may make War. But this I cannot admit of, for it sufficeth not to foresee what the will of the Prince would be, in case he were consulted withal; but we are to consider, what a Prince would have a Magistrate to do without advising with him, in case the matter be important, and will admit of time enough for a serious debate, if a general Law were to be made thereupon. For though the reason that moves a Princes will, being particu­larly inspected, may in some particular fact cease; yet the reason universally taken, ceaseth not, which is, That all dangers should be timely prevented: which could not pos­sibly be, if every inferiour Magistrate should assume unto himself the Right of making War. On. Manlius was not therefore unjustly accused by his Lieutenants,Liv. 48. that without order of the people of Rome he had made war against the Gallo-Graecians. For although there were certain Legions of the Gauls in Antiochus his Army, yet having concluded a League with Antiochus, whether that injury were to have been revenged on the Gallo-Graecians, was not in the choice of Cn. Manlius, but of the people of Rome: Cato's o­pinion was, That Caesar should be delivered up to the Germans, for making a War against them without order: But (as I believe) not so much regarding the equity of the thing, as indeed to free the City of the fear they had of so potent a Master; for the Germans had given assistance to the Gauls, being then enemies to the Romans; and therefore had no reason to complain of any wrong done them, in case that war with the Romans against the Gauls were just. But Caesar should have been contented to have beaten the Germans out of Gallia, which was the Province allotted to him, and not have prosecu­ted the War into Germany, without first consulting the people of Rome; especially consi­dering that there was no danger then imminent: The Germans therefore could have no right to demand Caesar, considering that they had given the Romans just cause to make War upon them; but the Romans had just cause to punish Caesar for transgressing his [Page 36] Commission; as the Carthaginian Embassador told the Romans plainly, in the very like case, I do not think it fit for you, saith he, to enquire whether Saguntum were besieged by the publick Edict of the City of Carthage, or by the private Authority of our General; but whe­ther it were done justly or unjustly? Liv. l. 31. For it concerns us only to call our own Subject to an account, by whose order he did it. The only dispute between us and you is, Whether it might be done with­out breach of our League with you or not? Cicero defends the fact both of Octavius and of Decimus Brutus, who upon their own private judgments made war upon Anthony: But although it had been as clear as the Sun, that Anthony had deserved it, yet should they have consulted the Senate and the people of Rome, before they had begun it. For al­though it were granted, that the affront given, did manifestly deserve an hostile invasion; yet ought they to have expected the judgment of the Senate and People of Rome, whe­ther it had not been more expedient for the Common-wealth,Though a just cause of War be given, yet should it be left to the Su­periors to judge, whe­ther it were safer at that time to have dissembled, or to have re­venged it. Historians not always to be approved. at that time, to have dis­sembled it, than to have revenged it; to have treated with him about Articles of Peace, than to have rush'd presently into Arms: For no man ought to be compelled to pursue his own Right, when it cannot be done without fear of a greater loss. Besides, Sup­pose that Anthony had been declared an enemy, yet ought the Senate and People of Rome to have had their free choice, under whose conduct that War should he carried on. Thus the Rhodians answered Cassius, demanding Agdes of them according to their League, That they were ready to send them if the Senate should command them. By this and the like examples (for many such we shall meet with) we may learn, not to approve of every thing that Historians (though of never so good fame) seem to com­mend unto us: For sometimes they are awed by fear, sometimes byassed by affection; sitting their Stories to their own occasions: wherefore in such cases we should endeavour to be guided by our own uncorrupted Judgments, and not rashly to make those Actions our Precedents, which deserve rather to be excused than applauded; whereby we may be drawn into pernicious errors. Now whereas it hath been said, That a publick War cannot justly be undertaken without the Authority of the Supreme Magistrate; it will be necessary for the better understanding as well of this Question, and of that of a So­lemn War, as of divers others, to enquire what that Supreme Power is, and in whom it rests: And the rather, because the Learned of this Age, do not so well determine it; for whilst each of them pursues this Argument, rather according to present use and cu­stom, than according to truth; they have rendred that which, of it self, was not very easie, much more dark and obscure than it was before.

VI. The Civil Power, what?

That Moral Power whereby Common-wealths are governed, which Thucydides calls the Civil Power, he describes by three things; where he calls a City, that is truly so, [...], that is, 1. That it should have a power to make or abolish Laws. 2. That it should have a power to pass Judgments. And 3. To create Magi­strates, or which the word will likewise bear, to raise Taxes; for every Common-wealth ought to have a Moral Power in these things.Pol. l. 4. Aristotle divides the administration of this power into three parts: The first is, The consultation about things common; as a­bout Peace, War, Leagues to be either made or broken. The second is, The choice of fit Persons for Magistrates. And the third is, A power to determine all Controver­sies. Dionysius Halicarnassensis makes the Civil Power to consist in these three things: 1. The Creation of Magistrates, 2. The Legislative Power, And 3. The power of con­cluding either Peace or War. And elsewhere he adds this fourth, namely, A power to determine all differences, by passing definitive Sentences; and by and by he adds, The care of setling Religion, and the power of calling Assemblies. But he that would right­ly divide this power, so that nothing be either defective or redundant, may do it thus: He that rules in any Common-wealth, doth it partly by himself, and partly by others. What he doth by himself concerns either Universals or Particulars: what concerns Uni­versals, are the making of Laws or the abrogating of them; and these are either sacred (so far forth as concerns the Civil State) or prophane. This Aristotle calls the Art of building up a City: Those singulars about which this power is conversant, are either things directly Publick, or Private, yet such as are in order to Publick. Those that are directly Publick, are either Actions, as Peace, War, Leagues; or Things, as Taxes, Customs, Tributes, and such like: Wherein also is comprehended that eminent Do­minion, that every Common-wealth hath over the Persons and Goods of its own Sub­jects, so far as concerns the publick safety: And this Art Aristotle terms by its general name, Political, that is Civil, or the Art of Counselling and well Advising. Or (as I said) they are things private; namely, things controverted between singular persons, the determination whereof doth much conduce to publick peace and safety; and this Art Aristotle terms judicial. But those things which he dispatcheth by another, he doth either by Magistrates or by Procurators, among whom we are to place Embassadors, and Envoyes. And in these things do principally consist the Civil Power.

VII. Power Su­preme what it is?

That we call the Supreme Power, whose Acts are not subject to the power of another, nor can by any Humane Authority be made void; when, I say, by another, I exclude him who hath this Supreme Power, in whose power it is to change his own Will; so al­so I exclude his Successor who hath the same right, and so the same power and no other. This therefore is that which we call the Supreme Power:In whom it is. Now let us see in whom it rests, the Subject wherein this Soveraign Power remains, is either common or proper: As the common Subject wherein Sight rests is the Body, the proper Subject is the Eye; so of this Supreme Power, the common Subject is the City or Common-wealth, which, as I said before, is a perfect company or society of men. Hence then we exclude those who have given themselves up to the power of another people, as those Nations that were conquered by the Romans, were no longer called Kingdoms, but Roman Provin­ces: For such a people cannot be called a City, in that sence wherein we now take the word, but the unworthy Members of that City that conquered them, as Servants are the meanest Members of a Family. Again, It sometimes happens, that of divers people there is but one and the same head, and yet every one of these people do constitute one perfect Society; for it is not so in the Moral, as it is in the Natural Body, where it is not possible that one Head should govern two Bodies: For in the Moral, one and the same person diversly considered, may be the head of divers and distinct Bodies, whereof this is a most infallible sign; for whensoever the Regal Family of him in whom the So­veraign power over divers Nations was united, shall be extinct; the power it self se­parates, and each reverts to its own people. So it may fall out, that many Cities may be linkt in so strait a confederacy, that (as Strabo speaks) they may constitute but one well governed Body; and yet doth each of them still retain the state of a perfect City; as is well observed both by others, and also by Aristotle in divers places; so then the common Subject wherein this power resides, is a City so understood as I have already exprest. But the proper Subject of this power is either one person or many, according to the several Laws, Customs, and Manners of every Nation.

VIII. Not in the people.

And here first we must disclaim their opinion, who affirm the Supreme Power to be (every where, and without any exception) in the People; and that so fully that it is in their power, either to inforce or to punish their King, if he govern amiss: What great mischiefs this opinion, being once fixed in the minds of the Rabble, already hath, and hereafter may introduce, there is no wise man but may easily discover.This proved. For con­futation of which opinion, we offer these Arguments to the more ingenious Reader. By all the Laws both of the Hebrews and Romans, it will appear;Exod. 21.6. Gell. l. 21. c. 7. that it is lawful for every man that hath power over himself, to bind himself as a Servant, or an Apprentice to whom he pleaseth. And why then should it not be as lawful, for any people natu­rally free, to give themselves up to any one person or Society to be governed wholly by them, without retaining any part of their liberty to themselves? Neither will it suffice to say, this is not to be presumed; for the question is not what in a doubtful case is to be presumed, but what by Right may be done; and it is as vain and frivolous to urge the inconveniences that may arise from hence:No form of Government without some Inconveni­ence. For there is no form of Government whatsoever, be it never so well fansied and framed in the Brain, but upon the exercise of it will produce some inconveniences and some dangers with it; so that we must, do what we can, resolve to take the advice of the Comedian, Aut haec cum illis sunt ha­benda, aut illa cum his mittenda sunt; either to accept of the inconveniences with the conveni­ences, or to renounce both; and so live like Beasts without Government, which is the great­est inconvenience of all. As there are several kinds of Trades or Callings for men to live by, some better, some worse, and every man is permitted to chuse which he pleas­eth; so there being several sorts of Government, it is in the peoples choice which of them they will be governed by: Neither is the right to Govern to be measured by the excellency of the Form, whereof divers men judge diversly, but by the freedom of their own will: What Cato sometimes said of Laws, may as well be said of Governments; There are none so perfect, but have some defects. But what the same Cato observed is very true, It is sufficient to commend any Government, that it produceth good effects in the general, and profiteth the greater part of mankind. Now, as Cicero speaks,De leg. 3. To reckon up all the inconveniences only in any Government, and to pass over with silence all the convenien­ces is unjust, because the good that we seek for we cannot obtain, without the evil which we would avoid. But of these several kinds of Government our choice being made, and the right thereby transferred to another, to reassume it at our pleasure upon what pretence soever is unjust. Many causes there may be for which a people may be induced to renounce, and yield up unto others all right of Government: As namely,Many reasons there may be, why a people may yield up themselves to be Governed by another. when they shall be reduced into so great danger of their Lives, that no other way can be found whereby to defend themselves; or when they shall be opprest with so much want, as that they cannot o­therwise sustain themselves. Thus the Israelites being distrest by the Ammonites, sent for Jephtha, and rather then be opprest by a Foreign enemy, they transferred the Go­vernment [Page 38] upon him, whom before they had banished, Judges 11. This also was the condition of the Campanes, when they surrendred themselves unto the Romans, in this Form; We, say their Embassadors, in the name of all the people of Campania, do freely surrender and give up our selves, our City Capua, our Fields, Temples, together with all that we have, both di­vine and humane, into your power, O Conscript Fathers. And some people we may read of, who have offered themselves to the Romans upon condition of protection only, and have been rejected:App. Liv. lib. 5. lib. 8. as the Falisci, and the Samnites. And if so; what then should hinder, but that some people may in like manner surrender all power and right over themselves to some one man, by whose wisdom and power, they expect protection? Also it may so happen, that a man having vast possessions, will not admit of any to inhabit his Countrey, but under condition to submit to his Jurisdiction: or, It is possible, that a man having large Territories, and a multitude of servants, may manumit them, giving to each a pro­portion of Land, on condition, that they yield him their subjection with some kind of Tribute. Precedents of this nature we want not; Tacitus speaking of the Germans, saith, That every servant hath his several house, and peculiar estate, and governs his own Family: his Lord imposing upon him what proportion of Corn, Cattle and Garments he pleaseth, which he readily payes, and as a servant, hitherto, obeys. Add hereunto what Aristotle observed, That some men are naturally servants;Some people naturally ser­vile. that is, so apt for servitude, as if Nature had made them for no other use: and so are some people too of so servile a disposition, that they know better how to obey, than how to govern; such were the Cappadocians, who told the Romans plainly,Strab. lib. 12. when they offered them Freedom, that they could not live without a King.Just. l. 38. So Philostratus in the Life of Apollonius, It is but solly to set at liberty the Thra­cians, Mysians and Getes, for they value it not. Besides, there were not a few people who have been perswaded to admit of Kingly Government by the example of other Nations, who for many Ages have been observed to live very happily under it. Seneca speaking of Brutus, saith, Though he were in other matters a gallant man, yet in this he seemed to me to err, Lib. 2. de Be­nef. Not to have behaved himself like a Stoick: That he was either affrighted at the Name of a King, when the best Form of Government is that which is under a good King: Or hoped for Li­berty there, where the rewards due to Empire and Subjection were so great: Or that he could believe it possible to recall the Primitive Government, The best Go­vernment is under a good King. unless he could restore the Citizens to their ancient Manners: or that he could reduce them to an equality of Civil Rights, and put in force their ancient Laws, when he saw so many thousands of men to fight, Non utrum servirent sed utri, Not whether they should obey or not, but whom they should obey. Some Cities, saith Livy, were so well pleased with the Government of Eumenes, that they would not have changed their condition with the Freest Cities in the world. The like is recorded by Isocrates, That many deserted the Free Cities of Greece, to live in Salamina a City in Cyprus, under the Mild Go­vernment of Evagoras. Again, such may be the condition of a City, that there remains no probable hopes of safety, unless they put themselves under the Dominion of one single person. Such was the state of the City of Rome, which most wise men thought could not have been preserved, had not Augustus Caesar assumed to himself the sole Government of the whole Empire. Such cases, I say, not only may, but do usually happen, as Cicero observes in the second of his Offices: But (as hath been already said) like as private Dominion may by a Just War be lawfully acquired, so also may Civil Dominion, or the right of Empire, if it depend not upon some other. Nor would I be thought to speak this of Monarchical Government only, where that is received; but the same Arguments will hold for the ac­quiring of an Oligarchical Government, where the Nobles have excluded the Commons, and assumed the Government upon themselves. What, that there is any Common­wealth so popular, wherein some, as the poor, the stranger, women and youths are not excluded from publick Counsels? Even now there are some people also that have others truckling under them, and who are no less subject unto them, than they could be unto Kings.Liv. lib. 1. Whence ariseth that Question in Livy, Are the Collatine people under their own Ju­risdiction, or have they any power that is their own? And the Campanes when they surren­dred themselves unto the Romans, Lib. 7. are said to be under the Jurisdiction of the Romans. Acarnania as also Amphilochia are said to be subject to the Aetolians: so are Peraea and Caunus to the Dominion of the Rhodians. The Emperour Otho gave all the Cities of the Moors to the Province of Granado in Spain, as Tacitus testifies: So did Philip the City Pydna to the Olynthians. Some Kings are so abso­lute, that they are not sub­ject to the whole body of the people. Many other examples are here produced, all which were abso­lutely Null, if it be granted, That the Right of Government be at the disposal of them that are governed. Again, some Kings there are, that are not subject to the whole body of the people, as Histories both Sacred and Prophane do testifie. If thou shalt say, saith God to the Israelites, I will set a King supra me, above me, Deut. 17.14.Deut. 17.14. And unto Sa­muel saith God, Shew them the right or manner of the King that shall reign over them, 1 Sam. 8.4. The like we may read, 1 Sam. 9.16. and 1 Sam. 10 1. still it is super eos; not un­der my people, but over them: not under them, to serve them; but over them, to save, defend and deliver them. Thus David and Solomon are said to be anointed over the [Page 39] people, over the Lords anointed, and over Israel. And David gives thanks,2 Sam. 5.2. 1 Kings 4.1. Psal. 144.2. that God had subdued his people under him. Christ also declares as much, where he saith, The Kings of the Gentiles exercise dominion over you, Luke 22.25.

The three Forms of Government are by Seneca thus described:Ep. 14. Sometimes the people are most to be feared; sometimes, if the Government be such, those most in favour with the Senate; and sometimes, those particular persons upon whom the whole power of the people, and over the people is devolved. For such, saith Plutarch, have power to govern, not only according to the Laws, but even the Laws themselves for the publick good. Flam. Thus Otanes in Herodotus describes a King, That he may do even what he will, without being accountable to any. So doth Dion Prusaeensis, That he may so rule, as not to render an account to any. Pausanias to the Messe­nians, opposeth Kingly Government to that which is lyable to give an account of his Acts to others. Aristotle affirms, That there are some Kings who are invested with as much power as elsewhere a whole Nation hath over it self, or whatsoever it hath. So, as soon as the Ro­man Generals began to assume unto themselves Regal power,Uno minor Jove, That Kings Inferi­our to God alone, is no less Christian, than Ethnick Philosophy. For in this, and in nothing more, are Kings like unto God, that they depend upon none: He whom God hath placed in his Throne, is accountable to none, but unto him who placed him there. He is Solutus Legibus, above the lash of humane Laws: He judgeth all, but is judged of none. When Herod was accused to M. Anthony for the Murder of Aristobulus, Anthony makes this Apology for him, It was neither Just nor Equitable, to require an account from Kings for what they do as Kings: For if that were permitted, they could be no longer Kings. Kingly Power then must needs be the highest, because there lyes no Appeal from him, or against him, but unto God. And as it is subject to no other power; so it is bounded by no humane Law, as other powers are. 'Tis granted, that Moses indeed seems to prescribe Laws unto Kings, and tells them what they should do, And good Princes will say with the Emperour Theodosius, Tantum mihi licet, quantum per Leges licet; That only is lawful for me to do, which the Laws account so. But as Moses teach­eth us what a King should do, so Samuel tells us what a King may do: Moses tells us his duty, Samuel his power. The Law consists of two distinct parts, the one Direct, the other Coercive: the former points at the rationability of the Law; the latter at the danger we run into, if we break the Law. Now Laws serve to direct Kings, because they mind them of their duty: But they have no power to force them to that duty, much less to Un-King them if they do it not. the people are said to con­fer upon them all their power and authority over themselves, as Theophilus expounds it. Hence is that excellent saying of M. Antoninus, None but God himself is the Judge of Kings.

Dion Prusaensis speaking of such a King, saith, He is free and absolute in power, both over himself, and over the Laws; what he will, he doth; and what he will not, he doth not. Such an­ciently in Greece was the Kingdom of the Inachidae at Argis, whom Moses terms the Ana­kims, Deut. 2.10. For the Argives in Aeschylus thus bespeak their King;

Much different from what Theseus himself, though a King, speaks in Euripides, concerning the Common-wealth of Athens,

For Theseus, as Plutarch informs us, was not their King, but their General in War, and the Guardian of their Laws in peace, in other matters he was but equal with the rest of the Citizens. Hence it comes, That those Kings that are accountable to the people,Lib. 3. Vit. Cleom. Vit. Ages. as those after Lycurgus; but especially as the Ephori were to the Lacedaemonians, are by Poly­bius, Plutarch and others, said to be Kings in Name only, but not in Power: which example of the Lacedaemonians, notwithstanding most of the Graecian Cities followed. Pausanius to the Corinthians, thus testifies of the Argives, Corinthiacis. Kings in name only, not in power. That they were so far addicted to parity and liberty, that at length they reduced the power of their Kings to almost nothing; for to the Sons and Posterity of Cisus, they left not any thing, but the bare Name and Title of a Kingdom. And therefore Aristotle denyes, that such Kingdoms do constitute any special Form of Govern­ment, allowing them but as parts, either of Optimacy or Democracy. Nay, even among such people as were not perpetually governed by Kings,Some have for awhile the power, but not the name. we may find some footsteps of a Temporary Monarchy, not at all subject unto the People. M. Livius Solinator in his Cen­sorship disfranchised all the Tribes but one in Rome for their Ingratitude; thereby shewing [Page 40] his power over the whole body of the people. And such was the power of the Dictators in Rome, from whom there was no Appeal, no not unto the People; whence it came to pass, that as Livy informs us, An Edict from the Dictator was as Authoritative as an Oracle from God:Dictators in Rome tempo­rary Kings. 1. Arg. an­swered. The Thing that consti­tutes, not al­ways greater than the thing constituted. Neither was there any safety at all but in obedience. For though Kings were banished, yet was the Regal Power comprehended in the Dictatorship.

The Arguments produced for the contrary opinion, are easily answered: For in the first place, Whereas they say, the Thing that constitutes is greater than the Thing con­stituted; and therefore the people that make the King, must needs be greater than the King they have made: I answer, That it is true, where the Authority of the thing con­stituted doth always depend on the will of the Constitutors; but not where the Authori­ty once freely given, doth ever after fully remain in the person that received it. As for example, A woman being free, may chuse whom she will for her Husband; but having once chosen, the woman is perpetually bound to obedience: (So he that resolves to put himself as an Apprentice, hath a freedom to chuse his own Master; but having chosen, cannot free himself when he pleaseth.The wise An­swer of Val [...]n­tinian.) It was well said of Valentinian, who being first chosen Emperor by the Army, and afterwards denying them a request, which seemed unto him unreasonable, told them, That it was indeed in their power to have chosen, or not to have chosen him; Theodoret lib. 4. c. 5. but being chosen, what ye demand is in my power to grant, but not in yours to exact: It is your duty to obey, and mine, being your Emperor, to consider what conduceth to the General Safety. Neither is it altogether true, what they seem to take as granted, that all Kings are constituted by the people; as may easily be proved, as well by some Fathers of Families, who admit of Strangers under the condition of Subjection, as of some Nations conquered by the Sword.

2. Arg.Another Argument they draw from that maxim of Philosophers, That all Government is granted for the benefit of the people, and not of the Governors; and therefore the end being more noble than the means, they for whose good Rulers are constituted, are above the Rulers themselves. But neither is this universally true, That Government is for the good of the persons governed; for some are for the sole use of the Governors, as that of a Master over his Servant, is chiefly and principally for the good of the Ma­ster; but the good of the Servant is but extrinsecal and adventitious, as the Physicians gain is but accidental to the Physick he gives. There are also some Governments that are for the mutual benefit of both parties, as that of an Husband over his Wife: So of Empires, some are gained by the Sword, and those doubtless are for the benefit of the Conqueror; neither is it therefore to be accounted tyrannical, which word (as now ta­ken) implyes somewhat of injustice: And some Empires are for the mutual good, both of him that governs, as of them that are governed; as when Jephtha was made King to defend the oppressed Gileadites. Yet notwithstanding I cannot deny, but that in most Empires, what was long since said by Hesiod, Herodotus, and Cicero, is very true, That Kings are constituted to administer Justice to their people. But to infer from thence, that the people are above their King, will be no good consequence; for the Guardian is appointed for the good of his Pupil, and yet hath he a right and a power over him. But you will farther say, That in case a Guardian perform not his duty he may be removed, and why then may not a King? Whereunto I answer, That the case is not the same, for a Guardian hath a power above him, by whom he may be judged, but so hath not a King; for that there may be certain bounds set to all humane power, it is necessary that we ad­mit of one to be Supreme; and That one must be either a single Person or an Assembly, unto whom are referred the last Appeals; whose faults because they have no Superior upon earth,Jer. 25.12. God himself is said to punish: And if he do not, yet is that very toleration intended, either as a punishment or as a Tryal of the People. It was excellent advice that Tacitus gives in this case,The extrava­gancies of Princes are to be born with patience. The Luxury and Covetousness of Princes, are to be endured with the self same necessary patience, as we do storms and tempests at Sea, or drought and scar­city by Land, or the like natural inconveniences which are not to be avoided: For vices there will be as long as there be men; but this is our comfort, that as they are not perpetual, so they are sometimes recompenced with great advantages. It was well said of M. Aurelius, That if pri­vate persons offended, the Magistrate is to judge; If the Magistrate offend, the Prince: But of Princes God alone is the proper Judge. Thus doth Vitigis (being himself a King) plead in Cassiodore, in the behalf of Kings, Causa Regiae potestatis supernis est applicanda Judiciis quan­doquidem illa è coelo petita est, & soli coelo debet innocentiam; The miscarriages of Princes are to be referred to Gods Tribunal, for receiving their power from Heaven, to Heaven alone they owe their innocence. And presently after he subjoyns, Neither can we be accountable to any other, because upon Earth we have no Judge, nor within our Dominions any Peers. Another no­table place we have in Gregory Turonensis, where he (being a Bishop) thus bespeaks the King of France, If any Subject deal unjustly with us, it is in thy power, O King, to punish him: But if thou oppress us, who shall judge thee? We may complain unto thee, and if thou wilt, thou mayst hear us; but if not who, shall condemn thee, but he only that is Justice it self? Among [Page 41] other opinions of the Essenes, Porphyry commemorates this,Lib. 5. That Empires fall not to any man by chance, but by the special Providence of God. Cujus jussu homines nascuntur, hujus jussi reges constituuntur, apti iis qui in illis temporibus ab ipsis regnantur; Look, saith Ireneus,Ireneaus. It is Gods pro­vidence that fits Kings to such times, and to such a people. by whose providence it is that men are born, by the same it is that Kings are ordained: Not by chance or peradventure, but by Gods special appointment; as being fitted for such times, in which, and for such persons, over whom they are to rule, (according as it doth best advance those great designs of Gods Wisdom and Counsels, whose instruments they are.) Thus is he said to raise up Pharaoh to manifest his power in him, Exod. 9.16. Rom. 9.17. These were the sober thoughts of the Egyptians themselves, as Diodorus observed, Existimant non sine divina providentia pervenisse Reges ad summam omnium potestatem; They are perswa­ded, that it is not without a divine providence, that Kings ascend to the highest power. De Civit. Dei lib. 5. c. 21. So St. Augustine, He that gave the Roman Empire to Augustus, gave it afterwards to that monster of men, Nero: He that setled the same Empire in Vespasian and his Son Titus, did afterwards transfer it on Domitian. That Constitution of Clement is very pertinent to this purpose,Lib. 7. c. 17. Regem timebis gnarus à domino electum; Thou shalt fear the King, knowing that his choice is from God: Neither will it avail to say,1 Kin. 4.16. 2 Kin. 10.17. 2 Sam. 24.17. that we read of some people who have been punished for the sins of their Kings; for this happens, not because the people do not restrain and punish their Kings, but because they tacitely consent to their vices: Or haply without regard to this,It is one and the same God that sets up one and pulls down another, and that transfers Crowns and Scepters from one Nation to another People, and that rules the Peo­ple by whom he pleaseth. Now to such as judicially peruse the Writings of the Prophets, they will appear most evident; for they do not only foretel the Counsels of God: but the very Kings and Princes, by whom God intends to bring about his secret purposes, are therein described, yea and sometimes named, long before they were born, as Josias by name, 1 Kin. 13.2. Cyrus by name, Es. 45.3. Which plainly argues, that God doth not only foresee what will come to pass, but pre-ordains such and such persons, by whom he intends to effect his purposes; yea and fits them with habits and graces accordingly. he makes use of that supereminent power that he hath o­ver the lives of every of his Creatures, whereby to punish those Kings by taking away their Subjects, it being the proper punishment of Kings to be thus weaknedThe proper punishment of Kings is to be deprived of their Subjects..

IX. Mutual Subje­ction refuted.

Others there are that seem to fansie to themselves mutual subjection, as in case the King shall govern well, then the whole body of people should obey; but in case he go­vern ill, then he ought to be subject unto the people. Now if what they say do amount to no more than this, That our obedience to Kings binds us not to do any thing that is manifestly wicked; they say no more than what all sober men will grant: Yet doth not this imply any compulsion or any right of Empire that is in the people. But in case they had a purpose to divide the Government with the King (whereof we shall have occasion hereafter to speak somewhat) they ought to assign bounds and limits to the power of ei­ther party, which may easily be done by making distinction of either Places, Persons, or Affairs. But the well or ill management, especially of Civil Affairs; being apt to admit of great debates, are not so sit to distinguish the parts; for great confusions must neces­sarily arise, where the right of power is to be judged of by the pretensions of good or evil acts, some judging of these Acts in favour to the King, others in savour to the people; which confusion no people, that I as yet know, were ever so imprudent as to introduce.

X. Cautions in judging of the Supreme Power.

These errors being thus refuted, It remains that we set down some Cautions, which may guide us to give a right judgment, to whom in every Nation the Supreme Power belongeth; whereof the first is this, That we suffer not our selves to be deceived by such names as are ambiguous in sence, nor with the shew of outward things. As for exam­ple, Although amongst the Latins, a Kingdom and a Principality are usually opposites; as when Caesar said, the Father of Vercingetorigis having got the principality of Gallia, Kingdoms and Principa­lities promis­cuously used. was slain for his affecting the Kingdom: And when Piso in Tacitus said, that Germanicus was indeed the Son of a Prince of the Romans, but not of the King of the Par­thians. And when Suetonius said that Caligula wanted but a little of changing his Princi­pality into a Kingdom; yet we find these Titles of times promiscuously used. For both the Lacedaemonian Generals, who derived themselves from Hercules, Lib. 1. though afterwards they were subjected to the Ephori, yet were still called Kings. And some ancient Kings of Germany there were (as Tacitus relates) who Reigned, magis suadendi, quam jubendi potestate; more by perswasions, than by power. And as Livy speaks of King Evander, Lib. 15. that he governed rather as a prudent Magistrate, than as a King. Thus Solinus calls Hanno the King of the Carthaginians: And he that wrote the Life of Hannibal saith, That as the Romans chose every year two Consuls, so the Carthaginians chose two Kings, (meaning their Suffetes or Judges.) Among these Kings, improperly so called, we may likewise reckon their Sons, whom their Fathers were pleased to honour with the Title of Kings, though they reserved unto themselves the Regal Power. Such was that Darius, whom his Father Artaxerxes commanded to be killed, being first condemned for plotting his Fathers death, as Plutarch relates the Story. So on the contrary, The Roman Emperors,Plut. A [...]tax [...] ad fin [...]m. after they had openly assumed unto themselves Regal Power, contented themselves with the Names [Page 42] and titles of Generals or Princes. Nay, the Ensigns of Regal Power are in some Free Cities usually given to Princes. But now the assembly of States, that is, of those that represent the whole body of the people, digested, as Gunther speaks, into three orders; namely,Parliaments why called. Prelates, Nobles, and the principal Burgesses of Cities, do in some places in­deed serve to this end only, to be the Kings Greater Council, whereby the grievances of the people, which are oft-times concealed by his Privy Council, may come to the Kings knowledge, who have also power to determine them, as it shall seem good unto them, according to Custome. But in other places they have power to call into question the Actions of the Prince, and also to prescribe Laws which shall be binding even to the Prince himself. There are many also that place the difference between the Su­preme and the Lesser Powers, in the translation of the Empire by Election or Succession: Attributing the Supreme Power to this latter, but not unto the former. But this holds not universally true: For Succession assigns not the Form of Government, but the Con­tinuation of a Form in the same Family. For the right which began in the Election of such a Family is by Succession continued. Among the Lacedaemonians the Kingdom, even after the Ephori were constituted, was hereditary: And of such a Kingdom or Principa­lity it is that Aristotle speaks, where he saith, That some pass by the right of Blood, and some by Election. And such in the time of the Ancient Heroes were most of the Kingdoms of Greece, I mean successive; as both Aristotle and Thucydides observed; so doth Dionysius Halicarnassensis. Whereas on the contrary, the Roman Empire, even after all power was taken as well from the Senate as people, was always transferr'd by Election.

XI. The Second Caution.

A Second Caution shall be this, It is one thing to enquire concerning the thing, and another to enquire concerning the manner of holding it, which holds good not in things Corporeal only, but in things Incorporeal. For as a Field is a Thing, so also is a Pas­sage,The thing it self distin­guisht from the manner of holding it. an Act, or Way. But these some may have by a full right of propriety, others by a right usufructuary (as a Farmer hath a right to his Farm,) and some others by a Tem­porary Right: As the Roman Dictator the Soveraignty but by a Temporary Right. So Kings, as well those that are first Elected, as also those that succeed to them in a right line, hold their Kingdoms by an Usufructuary right; (that is, they hold them as to all the rights and profits, but not to alienate them.) But others hold their Kingdoms by a full Right of Propriety, as they that by a just War have conquered them: Or he to whom any people, to prevent greater mischiefs, have yielded themselves Subjects for protection, so as they reserve nothing unto themselves. Neither do I agree with those who hold that the Roman Dictator during his time could not have Supream Power, because it was not perpetual. For the Nature of all Moral things are best known by their operations: Wherefore those powers that have the same effects are to be called by the same name. But a Dictator during his time, exerciseth all Rights that a King doth, who holds his Kingdom by a full right. Neither can any Act of his be made void by any other, as may appear by the Case of Fabius Rutilianus, whom when the people would have preserved, they could deal with the Dictator by no other means but by Petition: Whence we may conclude, That he had the same supreme power. Now the Duration or Continuation of a thing, alters not the nature of it; yet if question be made concerning the dignity which is usually called, Majesty: doubtless, he that hath it perpetuated unto him hath the greater Majesty, than he that hath it for a time limited only; because the manner of holding it adds much to the Dignity of him that holds it. Now what hath been said of Kings,Protectors have absolute power during their time. may also be said of such as are, either during the Minority of Kings, or during their Captivity, or Lunacy, appointed Protectors: For neither are those sub­ject unto the people, nor is their power revocable before the time come, appointed by the Laws. But it is otherwise with those who have a Right which is at any time revo­cable:Some King­doms held during the pl [...]asure of the people. Procop. Vand. lib. 1. As they who reign only during the pleasure of others, such was the Kingdom of the Vandals in Africa, and of the Goths in Spain, who were as often deposed as they displeased the people. And every act of theirs might be made void, because they who gave them that power, gave it under condition of Revocation: And therefore not ha­ving the same effect, they could not be said to have the same Right.

XII. Some Sove­raign powers are held fully, with a right of alienation.

Against what I have before said, That some Kingdoms are held in full right of propriety, that is, as Patrimonial: There are very learned men that make this objection, That Men being free, are not to be traffickt away from one to another, (as things that are bought and sold:) But as the power of a Master is different from that of a King; so is personal liberty from that which is Civil: And the freedom of singular persons, from the freedom of States. The Stoicks themselves confess, That there is a kind of servi­vitude in subjection,Hottom. Cont. illust. q [...]ae i. 1. Diog. La [...]t. 1 Sam. 22.28. 2 Sam. 10.2. 1 King 9.22. Liv. Lib. 1. Lib. 2. and the Subjects of Kings are sometimes in Holy Writ called their Servants: As personal liberty excludes the power of a Master, so also doth civil liberty that of Empire, and all manner of Soveraignty properly so called. Livy thus opposeth them, Before men had tasted the sweetness of liberty, they desired a King. And again, What a shame is it for the people of Rome, who when they served [Page 43] under Kings, were never straitned by War, nor besieged by an enemy, Lib. 45. being now a free people to be besieg'd by the Hetruscans. And in another place, The people of Rome live not now under Kingly Government, but in liberty. And elsewhere he opposeth those Nations that were free, unto those that lived under Kings. So also Seneca the Father,S [...]as. 1. We ought not to give our opinions in a Free state, in the same manner as we did under Kings. Yea, and Cicero, Either we did not well to expel Kings, or we ought to restore the people to liberty, De leg. 3. Ann. l. 1. not in words only, but in deeds. After these comes Tacitus, The City of Rome, saith he, was at first governed by Kings, but it was L. Brutus that instituted Liberty and Consular Authority. And to be short, every where among the Roman Laws, when they treat of War and recuperatory Judgements, all Foreigners are distinguisht into Kings and Free people. The question then here put, respects not personal, but civil subjection. In which sense, some Nations are said not to have power over themselves. Hence is that in Livy, Which Cities, Fields, and Men were sometimes under the power of the Aetolians. And that also, Are the people of Collatia a free people? (i. e.) have they any power over themselves? Ne­vertheless, to speak properly, when any people are said to be alienated,When a King­dom is aliena­ted, it is not the people, but the right of governing them that is alienated. it is not the men, but the perpetual right of governing themselves, as they are a people, that is alie­nated. As vain and frivolous is that Inference, which concludes, That because Kings conquer Nations by the blood and sweat of their Citizens, therefore what is so conquered, ought of right to belong rather to them than to him: For possible it is, That that King may pay his Army out of his own private estate; as M. Anthony did in his Bohemian Wars, who when the Roman Treasury was exhausted, being unwilling to impose any more Taxes upon the people, brought into Trajans Court, and made sale of all his Vessels of Gold, Silver, Crystal and Myrrh, together with his own and his wives Robes of Silk and Gold, and all other their Ornaments and Jewels for the maintenance of the War. Or he may pay his Army out of the rents and profits of that patrimony which attends the Principali­ty: And therefore Ferdinando claimed to himself all that part of the Kingdom of Grana­da which he had gained, with the rents and profits he had raised out of Castile, during the time of his Marriage, as Mariana testifies.Lib. 28. Hist. Hispan. For although a King have but the mean pro­fits arising out of that Patrimony, in the same manner as he hath the right of governing the people who have elected him, yet are those profits properly his own. As it is also in the Civil Law, where though the Inheritance be judged to be restored, yet the profits are not, because they are perceived, not from the inheritance, but from the thing it self. Possible therefore it is, that a King may be so possest of the Government over some peo­ple in his own proper right, that it is in his own power to alienate it. As it was granted to Baldwin, by those that accompanied him in his expedition to the Holy Land, That the half of all the Cities, Provinces, Tributes and Prizes that should be taken in that War, should be his. Strabo tells us,Lib. 8. That the Isle Cythara lying against Tenarus did belong to Eu­ryclis, one of the Lacedaemonian Princes, in his own Right. So we read that Solomon gave Hiram of Tyre twenty Cities, not of those that belonged to the Hebrews: 1 Kings 19. For Cabul (which was the name imposed on those Cities) was seated without the Hebrew bounds, Jos. 19.27. But out of those, which the people that were enemies to the Jews, 1 King. 9.6, 12. had held till the days of Solomon, and were partly conquered by the King of Egypt, and given unto Solomon in dowry with his daughter, and partly conquered by Solomon himself. For that these Cities were not at that time possest by the Hebrews is evident from this,1 Chron. 8.14. That as soon as King Hiram had restored them to Solomon, he then planted in them a Colony of the Jews. Diod. l. 4. So we read that Hercules gave the Kingdom of Sparta which he had con­quered by arms, unto Tindareus, on this condition, That if Hercules should have any children of his own, she should restore it to them: And having conquered the Epirots, he gave them to Apollo. So we read that Aegimus King of Doris, Serv. ad 4. Aenead. Apollod. having called to his assi­stance Hercules, in his War against the Lapithae, gave him a part of that Kingdom as his reward. Cychreus King of Salamine, having no children, left his Kingdom by his Te­stament unto Teucrus. Amphipolis was given in a Marriage dowry to Acamantes, the Son of Theseus. And in Homer, Agamemnon promises to give unto Achilles seven Cities. So King Anaxagoras freely bestowed two parts of his Kingdom upon Melampus. Vid. Serv. ad 6. Eclog. So again in Homer, we read that Jobates gave his daughter to Bellerophon, with a part of his King­dom in Dowry. And Justin tells us,Lib. 5. That Darius bequeathed by his Testament his King­dom to Artaxerxes, but the Cities whereof he was governour only, to Cyrus. And pro­bable it is, That the successors of Alexander every one for his part, did succeed him in that full Right of Governing the Nations, which were either formerly under the Persian Empire, or which they afterwards gained, by the right of their own Conquests. And there­fore it is not to be wondred at, that they claimed unto themselves the Right of Alienation. So when King Attalus the Son of Eumenes, had by his Testament made the people of Rome heir to all his goods, they under the name of goods, possessed themselves of his King­dom, whereof L. Florus speaks thus, The Word, Heir, implying an Inheritance, Lib. 2. Epit. Liv. 58. the people of Rome held his Kingdom as a Province, and not as gained by War or by force of Arms: But [Page 44] by what, was yet more righteous, by a Testamentary Right. So when afterwards Nicomedes (the King of Bithynia dying) made the Romans his heir. They presently reduced his Kingdom into the form of a Province:Orat. 2. In Rullum. Whereof Cicero thus, We have added to our Inhe­ritance the Kingdom of Bithynia. So that part of Libia, wherein the Cities Berenice, Pto­lomais and Cyrene stood, was by King Appio given by Testament to the same people. And Tacitus makes mention of some Fields,Epitom. Livy l. 43. Ann. l. 41. which belonging formerly to King Appio, were by him left together with his Kingdom, to the people of Rome. Procopius likewise tells us, That King Arsaces by his Testament divided the Kingdom of Armenia, leaving the greater Armenia to Arsaces, and the lesser to Tigranes. And hence it was, That King Herod having obtained from Aug. Caesar a Power to leave his Kingdom to which of his Sons he pleased,Josephus. was so often observed to alter his Testament. This custom also was much in use amongst the Goths and Vandals, Procopius. in those Kingdoms which they held by Conquest. The same we may observe much practised among the Turks: Sultan Ala­dine bequeathed by his Will many Cities to Osman: Leunclavius lib. 2. Bajazet also gave diverse of the Cities of Servia to Stephanus, in favour to his own Wife, being Sister to Stephanus. Sultan Ma­homet bequeathed his Kingdom by his Testament to Sultan Morat: Idem, lib. 4. and Mahomet the Turk intended to have divided his Empire, and to have left the Asian Empire to Musta­pha, and the European to Amurat. This also was frequently used in many other Nations. To rehearse them all would be no less troublesome to me, than it would be tedious to the Reader. But these may suffice to prove, That where Kingdoms are held by a full and absolute Right, they may be alienated: Yet so, That though the Right of Empire may be transferred, yet doth every singular person enjoy his own Liberty.

XIII. Some are held not so fully.

But in those Kingdoms wherein the people have any power, by way of Election or Confirmation, I confess it cannot be presumed, That it was ever their Mind to suffer the King to alienate his Kingdom. Wherefore what Crantzius observed, in Ʋnguinus, as an Act without any Precedent, That he had by his Testament given away Norway, we ought not to disapprove: For haply he regarded only the Customs of the Germans, amongst whom there was no such Right permitted, as to bequeath Kingdoms. For as Vopis [...]us in Tacitus saith, Empires cannot be bequeathed, as goods and bond-slaves may. Nor can a King, as Salvian observes, by his Testament, bequeath the people whom he hath go­verned, to the poor. Now whereas Charles the Great, Lewis the Good, and others after­wards among the Vandals and Hungarians, are said to dispose of Kingdoms by their Te­staments: These afforded rather matter of praise among the people, than argued the force of a true Alienation: And as to that of Charles, Ado makes special mention, that he desired his Testament might be confirmed by the Peers of France. The like we find in Livy, concerning Philip King of Macedon, who endeavouring to expel Persis out of his Kingdom, and settle Antigonus his own Brothers son in it, went throughout the Cities of Macedon solliciting the Princes on his behalf. Neither is it to the purpose to object, That the same Lewis restored the City of Rome to Pope Paschal: Considering that the French having before received the Soveraignty over that City from the people, might very well restore it back again to the same people, in the person of the Pope, being their chief Ci­tizen, and a Prince of the first order.

XIV. Some power not Supreme, yet fully held.

What we have hitherto admonisht, namely, That we are carefully to distinguish between the supreme power it self, and the manner of holding, it is so true, That as many Sove­raign Empires are not held by a fast and absolute Right; so there are many that are not supreme, that are fully and compleatly held: whereby it falls out that Marquisates and Earldoms are much more easily either sold or bequeathed by Testaments, than King­doms are.

XV. This appears by the assign­ing Tutors and Prote­ctors in King­doms.

There is also another m [...]rk whereby this distinction may be seen, namely, in the Tu­t [...]lage or Protection of Ki [...]oms, when Kings and Princes are hindered or disabled ei­ther by some disease, or th [...]gh old age, or the like, from performing their duty. For where the Kingdom is not P [...]trimonial, the Protectorship is theirs to whom the publick Laws, or if they are silent, the people shall consign it. But if the Kingdom be Patrimoni­al, then to them whom the Father, or the nearest of kin shall chuse. Thus did Ptolomy King of Aegypt, appoint by his Testament the people of Rome as Guardians to his Son, who to perform that trust sent M. Aemilius Lepidus who was their Chief Priest,Val. Mar. lib. 6. Tit. 6. c. 1. and had been twice Consul, unto Alexandria to take care of the Government, and of the Childs Education: By whose care, not only the Kingdom was preserved, but the Child in his youth so well disciplin'd, that it was hard to judge whether he received more glory by his Fathers great fortunes, or by the Majesty of his Guardian. So we read that in the King­dom of Epirus, which first depended on the suffrages of the people, Tutors were publick­ly assigned unto their young King Ariba: The like was done by the Nobility of Macedon to the Posthumous son of the Great Alexander. But in Asia the Lesser which was gained by the Sword, King Eumenes dying, appointed his Brother Protector to his young son Atta­lus. So did Hiero King of Sicily, by his Testament constitute unto his son Hieronymus [Page 45] what Tutors he pleased. But whether the King be also in his own private right Lord of the soil, as the Kings of Aegypt were after the times of Joseph; or as the Kings of the In [...]i­ans were, as Diodorus and Strabo testifie; or whether they are not, it makes no diffe [...]ence. For these are extrinsick to the Empire, and therefore can neither constitute another kind of Government, nor alter any thing as to the manner of holding it.

XVI. Soveraignty not lost by any promise made of any things which belong not to either the Law of God or Nature.

The Third observation shall be this, That an Empire ceaseth not to be supreme, though he that is to govern do by promise oblige himself either to his Subjects or to God, unto such things as do properly appertain unto his manner of Government. I mean not h [...]re, such things as appertain to the Laws of God, Nature, or Nations: For unto these every Prince stands obliged, though he promise not: But I mean though he do promise to confine his own power within certain Laws and Rules, whereunto nothing can bind him but his oath or promise. The Emperour Trajan did solemnly imprecate vengeance on his own head and right hand, in case he knowingly failed in what he had promised. And the Emperour Adrian sware, that ye would never punish a Senator without a decree of the Senate. Anastasius bound himself by oath to observe the decrees of the Synod of Chalcedon. And all the Greek Emperours did likewise oblige themselves to observe the Canons and Constitutions of the Church. But by none of these Oaths or Promises doth the Power of an Emperour cease to be supreme. This may clearly be illustrated by comparing the power of a King with that of a Master in his own Family: For although a Master do promise to observe such orders as he conceives to be most conducing to the welfare of it; yet doth he not thereby cease to be supreme in his own Family. Nor doth a husband cease to have power over his wife, though he have obliged himself to the contrary by some promises that he hath made to her: yet I must acknowledge that where such Oaths and Promises are made, the soveraignty is thereby somewhat straitened; whether the obligation do only restrain the exercise of the Act, as that of Adrian's above­mentioned, or the very power it self. If it restrain the exercise only, then the act that is done contrary to promise, is s [...]id to be unjust; because as we shall shew anon, every promise gives a right to him to whom it was made. But if it restrain the faculty it self, then the Act will be void, for w [...]nt of a Right or Faculty to do it. And yet will it not necessarily follow, that he th [...] [...]us promiseth hath any power superiour to himself; for his Act is not made void by any power above him, but by very right. Among the Persians no man can say but that their Kings were supreme and absolute in power, and not liable to give an account, as Plutarch testifies: Nay their Kings were adored as Gods own Image; and as Justin tells us, were never changed but by Death. He was a King indeed, that said to the Nobles of Persia, Ne viderer meo tantummodo usus consilio, vos contraxi; caeterum, me­mentote parendum vobis, magis quam suadendum: Val. Max. lib. 9. c. 5. Lest I should be thought to govern by mine own counsels only, I have called you together, but otherwise remember, that it is your duty rather to obey, than to perswade. And yet did this very King at his Coronation swear not to alter the Laws of that Kingdom made after such a form, as both Xenophon and Diodorus testi­fie: and as the Histories of Daniel, and Plutarch in the life of Themistocles inform us.Ch. 6, 8, 13, 15. Pers. l. 1. So Josephus tells us, That Vashti could not be reconciled to the King because the Royal Decree was gone out, which could not be broken. And long after them, Procopius con­firms as much, where we may read a notable example to this purpose. The very same doth Diodorus Siculus relate of the Kings of Aethiopia and Aegypt, who without doubt, as all other Eastern Kings, had in their respective Kingdoms absolute Power; and yet were they all at their admission obliged to many things by Oaths or Promises: Which if they performed not, though whilest they lived, they could not be questioned; yet be­ing dead, their memories might be accused, and being condemned, their carc [...]sses might be denyed solemn Funeral. This Apion records,Civiliam 3. Leges Tyrannorum Corpora insepulta ex­tra fines projici jubent; The Laws, saith he, command the bodies of Tyrants to be cast out of their Territories unburied. In obedience to the like Law, the Emperour Andronicus de­prived his own Father Michael of Christian Burial,Gregoras l. 6. because he followed the Faith of the Latin Churches. And such another Law there seemed to be amongst the Hebrews, who would not permit the dead bodies of their wicked Kings to be interr'd among their good Kings. The like we may find in Josephus concerning the two Jorams, 2 Chr. 24.25. & Ch. 28. 27. Jos. Art. l. 8. c. 3.5. the one King of Juda, the other King of Israel. By which excellent temperament of reverence and ju­stice, they both preserved the Majesty of their Kings inviolable whilest they lived, and also deterred them from breaking their oaths and promises by the fear of a dishonoura­ble Interrment being dead. The Kings of Epirus were wont to make oath, That they would rule according to the Laws: And their Subjects likewise bound themselves by Oaths to defend both him and the Kingdom according to the same Laws; as Plutarch in­forms us in the life of Pyrrhus. Nay further, suppose a King should accept of his King­dom upon these terms, That in case he should falsifie his promise, he should lose his King­dom; yet were his power supreme only, the manner of holding it would be so much impaired by such a condition, as would make that Government not much better than [Page 46] that which is Temporary. It was said by Agatharchides, concerning a King of the Sabae­ans, That he was not liable to give any account of his Actions as King, and yet if ever he were seen out of his own Palace, he might be stoned to death justly: Which Strabo also notes out of Artemidorus. So that Land which is held upon condition of some Trust to be performed, is held as sully during the performance of that Trust, as that which is held absolutely. But yet it is possible that it may be lost, and such a conditional Law may be added, not only in conferring of a Kingdom, but in any other Contract. For some Leagues with our Neighbour Princes we see entred into under such penalties. As in case a King being at his admission sworn, shall break his Articles of Agreement, his Subjects shall not help him, no nor obey him. So Crommerus testifies in his Treatise concerning the affairs of Poland, Ch. 19, & 21.

XVII. It may some­times be di­vided.

The Fourth thing is this, That though the Soveraign Power be but one, and of it self indivisible, consisting of those parts above mentioned, adding thereunto Supremacy; that is, the being accountable to none: Yet it may so fall out, that sometime it may be di­vided, either by Parts which they call Potential, or by Parts which they term Subjective. As though the Roman Empire were but one entire thing, yet it so sell out sometimes that one held the Eastern, and another the Western part of it, or that three sometimes divided the whole between them. So also it may fall out, that the People electing a King may reserve some Acts to themselves, and transfer others to their King to be held in full Right: Which notwithstanding is not done (as I shewed before) whensoever the King shall oblige himself by some promise: But then only when either the Partition is expressly made; as in the time of the Emperour Probus, when it was agreed, That the Senate should confirm the Princes Laws,Vid. Gail. lib. 2. Obs. 157. and that they might take cognizance of Appeals, appoint Proconsuls, and give Legates unto the Consuls: Or when the people, being as yet free, shall require it from him whom they chuse to be their King, by way of a permanent Law or Precept: Or if some such thing be added, whereby it may plainly be understood, that their King may be compelled or punished if he refuse.To command argues a supe­riour, but not to compel. For a Precept or Command is commonly from a Superiour, at least in that which is commanded; but to compel, doth not always argue a superiour: For naturally every man hath power to compel his Debtor to do him justice, but it is repugnant to the nature of an Inferiour. And therefore from Compulsion there must naturally follow at least a parity, and consequently a divi­sion of the Soveraign Power. Many Allegations are usually brought against this bipar­tite state. But as we have already said, In civilibus nihil est, quod omni ex parte incommo­dis caret, & Jus, non quod optimum est huic, aut illi, videtur, sed ex voluntate ejus, unde jus oritur, metiendum est; In Civil matters it is not possible to provide against all Inconvenience (no one Law can exactly fit every mans case, no more than any one Shooe can fit every mans Foot) neither is any thing accounted Right, by seeming so, to this or that person, but by the will of him who was the Law-maker. An excellent example of this is brought by Plato in the third Book of his Laws: For when the Heraclidae had built Argus, Lacedaemon, and Messena, they obliged their Kings to govern them according to Laws prescribed them; which whilest they did, the people also were obliged to continue their Kingdoms unto them and to their posterity, and not to suffer any man to take them from them: And for the better assurance of this Agreement, not only the Kings bound themselves by Oath to their Subjects, and the Subjects to their King; but the Kings bound themselves each to other, and the people of their respective Kings one to another, and the Kings gave their faith to their neighbouring people, and those people to their neighbouring Kings, each King and people promising their mutual aid and assistance in defence of the Government esta­blished amongst them. Many examples of this kind may be collected out of the Histories of our Northern Nations, as in Johannes Magnus his History of Sweden, and in Crantzius of the Swedes, and Pontanus of the Danes.

XVIII. Which is ill collected from this, That some Princes will have their Acts confirm­ed by the Se­nate.

True it is, that some Kings will not permit that some Acts of theirs shall be of force, until they are confirmed by the Senate or some other Commissioners. Yet he that shall hence inferr, That there is a Partition of power, will be mistaken: For whatsoever Acts are thus rescinded, ought to be understood as though they were made void by the King him­self, who by this means provides, that nothing fraudulently gained from him shall pass to his disadvantage. This was the scope of that Rescript sent by Antiochus the Third to his Magistrates, That in case he commanded them to do any thing contrary to Law, they should not obey him: And of that of Constantine to his, That Widows and Or­phans should not be compelled to come for Judgement to the Court of the Empe­rour, although the Emperours own Letters should be produced for it. This is very like unto those Testaments unto which this clause is added, That no Testament hereaf­ter to be made shall be of force: For such a Clause would have it believed, that the lat­ter Testament proceeded not from the will of the Testator. But as that clause in the Will, so the first Act of a Prince may by any after-Act of his, or by any special Indication of his later Will, be easily rescinded.

XIX. Some other examples hither ill drawn.

Neither am I at all swayed by the authority of Polybius, who would fain have the Ro­mans to be a mixt Common-wealth; which if we regard not so much the Acts themselves, as the Power whereby they were done, was doubtless at that time, meerly popular: For as well the Authority of the Senate which he refers to Optimacy, as that of the Consuls, which he refers to Monarchy, were both of them subject to the power of the people. Now the self same may be said, in answer to all other the Opinions of those that write of Politicks, who haply think it more agreeable to their purpose, to gaze on the extern face and daily administration of the Soveraignty, than unto the very Right of it, it self.

XX. True exam­ples.

Much more pertinent to the matter, is that of Aristotle, who saith, That between a full and absolute Monarchy, and that like unto the Laconian, being but a meer Principality, there are some of a Mixt kind; whereof we have an example, as I conceive, in the Is [...]a­elitish Kings, who doubtless in most things governed by a full power.Mixt Govern­ments. For such a King the people required, as their Neighbour Nations had: Supposing, as Josephus testifies, That if they were governed like unto their neighbours, they should suffer no Inconveniencies: not considering, that all the Eastern Nations, except themselves, were under a Slavish Go­vernment. So Atossa in Aeschylus, speaking to the Persians of their King, saith, That he is not accountable to the City for what he did. That of Virgil is well known,

Livy gives this Character of the Syrians, and all the Asian people, That they were a kind of men born to be Slaves. Not much unlike is that of Apollonius in Philostratus, The Assyrians and Medes do adore their Kings: nor that of Aristotle, Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy. And to the same sense is that Civilis Batavus to the Gauls in Tacitus, The Syrians and Asians might well serve, Hist. l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs. Not but that there were even at that time Kings also both in Germany and France; but as the same Tacitus there observes,All the A­sian Kings Absolute. They were such as governed for the most part in a Precarious way: or as I said before, more by a Perswasive, than by a Co­ercive Power. We observ'd before, that the whole body of the people of Israel was un­der their King. And Samuel describing the Government of Kings sufficiently proves, That against the Injuries done by them, there remained no power at all in the people, either to resist, or revenge. Which the Ancients did rightly gather from those words of King David, Tibi soli peccavi, Ʋnto thee only have I sinned; because as St. Hierom upon that place glosseth, David being a King, stood in fear of none but God, as having no other Judge but him: So likewise St. Ambrose, David was a King, and so subject to no Laws; For Kings are Free from those shackles, wherewith their Subjects crimes do entangle them: They Fear no punishments, being secured by the power of the Empire. To Man therefore he sinned not, because to him, he was not accountable for his Actions. Apposite to this, is that of Vitiges in Cassiodore, Causa regiae potestatis supernis est applicanda judiciis, quandoqui­dem illa coelo petita est, ita soli coelo debet Innocentiam: The cause of a King is to be referred to Gods Tribunal; for from whence he derives his power, to him only he owes his Inno­cence. And in cases of such oppressions, God himself prescribes the only Remedy that the people can have against their Kings, namely, Prayers and Tears; And ye shall cry out in that day, because of the King whom ye have chosen, 1 Sam. 8.18. (He doth not en­courage them to Rebel, nor doth he prescribe any Legal way of proceeding against them; only they may cry unto the Lord, and if he heard them not, they must suffer with pa­tience. Nor doth Samuel insinuate this to the Jews as if it were nudum factum: that is, That Kings abusing their power would do so; but as if it were Jus Regium, a Right proper to Kingly Government to do so.) The Jews themselves grant, that if their Kings did trans­gress those Laws which Moses prescribed unto them, they were to be beaten with Rods. But this was no reproach unto them, neither was it by compulsion, but by a voluntary susception, as a sign of their penitence: Nor was it done by any publick Officer; but as he imposed it upon himself freely, so he chose whom he pleased to do it; and prescribed both the manner and measure of his own punishment. But from all Coercive punishment their Kings were so free, that even that Law of Excalciation, Deut. 25.9. because it was not without some reproach, was not in force against them. Yet notwithstanding all this, there were some Cases whereof their Kings had no Right at all to judge, but they were reserved to the Great Sanhedrim, or Council of the 70. Elders; which being Insti­tuted by Moses at Gods special Command, continued by a perpetual supply of Election, until the dayes of Herod: For which cause,Deut. 1.17. P [...]al. 82.1, 6. they are by Moses and David frequently called Gods, and their Judgement, Gods Judgement. And those Judges are likewise said, to judge not for man, but for God, 2 Chron. 19.6, 8. Nay, there is a plain distin­ction made between the things of God, and the things of the King, 2 Chron. 19.11. where by the matters of the Lord (as the most Learned among the Jews do interpret it) [Page 48] are meant, the Administring of Judgement according to the Laws of God. That the Kings of Judah did by themselves sometimes inflict Capital punishments, I cannot deny: wherein Maimonides prefers those Kings before the Kings of Israel: which is sufficiently cleared by many examples both in Holy Writ, and also in other Hebrew Authors. But yet the Cognizance of some Causes was not permitted unto them, as that of the Tribes, that of the High Priests, that of a Prophet. For it cannot be (saith our Saviour) that a Pro­phet perish out of Jerusalem, Luke 13.33. And this is evident by the story of Jeremy, whom when the Princes demanded to death, the King answered them, Behold he is in your power; for against you, the King can do nothing, Jer. 38.5.Jer. 38.5. Yea, and in another place, he that was condemned by the Sanhedrim, could not be released by the King himself. And therefore Hircanus, Jos. Ant. l. 14. c. 17. In Criminal Cases the King of Mace­don's power availed no­thing. Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sen­tence against Herod, advised him by Flight to secure himself. In Macedonia, they that de­r [...]ved their Pedegree from Caranus, as Calisthenes in Arianus reports, obtained the Govern­ment not by Force, but by Law. Now the Macedonians though they were accustomed to Regal Government, yet had a greater smack of liberty than other Nations. For it was not in the power of the King himself to take away the life of any Citizen. It was the Antient custome of the Macedonians in criminal matters to be judged by the Army; but in times of peace by the People: The Kings power availed nothing farther than his Authority reached. There is in ano­ther place of the same Author another sign of the same mixture mentioned, namely this, The Macedonians, Curt. lib. 8. saith he, ordained that according to the custome of their Nation, Their King should never hunt on Foot, but in the company of some of his select Friends or Princes. The like doth Tacitus write of the Gothones, That they were under a stricter Government than others of the German Nation, yet not altogether without liberty. For whereas he had before described a Principality thus, That it governed rather by a Perswasive than Coercive Power. He now describes a Kingdom in these words, When, saith he, One person rules without any limitation or exception; and that not by entreaty, but by absolute command. Eustathius upon the Sixth of Homer's Odysses, describing the Common-wealth of Corcyra, saith, That it was a kind of mixt Government, having something of Kingly, and something of an Aristocratical Government. Laonicus Chalcocondylas makes mention of the like Govern­ment in Hungary and in England, in Arragon and in Navarr, where the Magistrates are not created by the King; nor are any Garrisons imposed on them against their will, nor any thing commanded them by their King contrary to their Laws and Customs. Not much different was the Government of the Romans in the time of their Kings: For al­though almost all publick affairs were then transacted by the Regal Power. Romulus, saith Tacitus, governed us as he pleased. And it is plain, That in the Infancy of their City, all power was in the King, saith Pomponius; yet even at this very time, were some few frag­ments of that power reserved in the people, if we may give credit to Dionysius Halicar­nassensis: but if we had rather believe the Romans, in some Cases, Appeals might be made from the King unto the people,Ep. 100 as Seneca collects out of Cicero's Books de Rep. as also out of some Pontifical Books, and Fenestella. By and by after Servius Tullius being advanced to the Empire, not so much by Right, as by popular Favour, did much more impair the Majesty of the Kingdom. For to gratifie the people for their kindness, he ordained some Laws,Ta [...]it. l. 3. whereunto the Kings themselves stood obliged. No marvel then, if Livy puts this only difference between the power of the first Consuls and of Kings, that it was but An­nual. The like mixture of Popular and Aristocratical Power there was in Rome i [...] the Vacancy of their Kings,Vi [...]. Camilli. and in the times of their first Consuls. For in some things, and those of moment, what ever the people commanded was established as a Law, if the Fathers were made the Authors.lib. 5. But as Plutarch observes, The People had no Right, either to make a Law, or to command any other thing, unless proposed by the Authority of the Senate. The like Mixture of Government Chalcocondylas notes to have been in the Com­mon-wealth of Genoua in his time. But afterwards in Rome, the power of the people increasing, though the Fathers began and proposed, as anciently they were wont to do; yet as Livy and Dionysius observe, the people would decree what they pleased. But yet even after this, there remained some of this Mixture, whilst (as the same Livy speaks) the Soveraign Power was in the Patricians, that is, the Senate; and the Auxiliary power in the Tribunes, i. e. the Plebeians, who had a Right to either forbid or intercede when they pleased. And of this mixt Government, between Democracy and Aristocracy, Iso­crates would have the Common-wealth of Athens to consist in the time of Solon. Now these things being premised, let us examine some doubtful Questions which do frequent­ly arise about this matter.

XXI. A Confede­rate on une­qual terms may have the Supream Power.

The first thing that falls under dispute, is this, Whether that Nation can be said to have Supream Power that is in League with another Nation upon terms unequal? Where, by Unequal, I do not mean, where the Confederate Nations are of Unequal power; as when the City Thebes made a League with the Persian Monarch in the time of Pelopidas, or the Romans with the Massilians, and afterwards with Massanissa. Neither do I mean such a [Page 49] League, as implyes some one transient Act that seems dishonourable; as when an Enemy paying the Charges of the War, or performing some such thing, is reconciled, and be­comes a Confederate. But where by the express Articles of the League there is some permanent and lasting Prelation given from one to the other. As when one Nation is bound to maintain the honour of another; as in that League between the Aetolians and the Romans, whereby the Aetolians were bound to use their endeavours, to preserve as well the dignity, as the safety of the Roman Empire: which dignity is sometimes called the Majesty, and by Tacitus, the Reverence of the Empire; which he thus expresseth: Though they are separate from us in place, and live within their own bounds, Li [...]. 4. yet in their minds and understanding they act with us. So likewise Florus, As for the rest of the Nations though free, yet perceiving the vastness of their Empire, they did highly reverence the people of Rome, being Conquerors of so many Nations. Whereunto we may also refer some Rights due to them that undertake the Patronage and defence of others. And those Rights, the Mother Cities have over smaller Cities and Colonies amongst the Graecians. For such Colonies, saith Thucydides, enjoy the same Right of Liberty as their Mother Cities do: Colonies. But yet they owe a Reverence to their Mother City, and ought to send her presents, as an acknowledgement of the honour they have for her. Livy concerning that ancient League of the Romans, who had received all the Rights of Alba, and of that which the Latines derived from Alba, saith, In that League the Roman State was superiour. Andronious Rhodius following Aristotle, did well observe, that in contracting amity between Nations of equal power,Nic. 9.18. The weaker should give the greater honour, and the stronger the greater succours. It was but reaso­ble, that the weaker should give the greater honour, and the stronger afford the greater succours. Proculus in his Answer to this Question we very well know, namely, That that is a Free Nation, which is not subject to the power of another, although it be comprehended in the League, that that Nation shall faithfully uphold the Majesty of the other. If there­fore a Nation bound by such a Covenant, do yet remain free, and not subject to the power of another. It follows, that that Nation doth yet retain its Soveraignty; the like may be said of a King. For of a free-people, and of a King that is truly so, there is the same reason. Proculus adds further, that such a Clause is added in the League, to declare, that one Nation is superiour to another; and not to declare that the other is not free. By superiour, we understand not in power, (for he had said before, that a free Nation should not be subject to the power of another) but in Authority and Dignity: which the words following by a very fit Simile do clearly illustrate;Some Nations are equal in liberty, though not in dignity with others. For as we know our Clients to be free, though neither in Dignity, nor in Authority, nor in all Right our equals: so they that are obliged faithfully to uphold our Majesty, are notwithstanding to be understood our equals in liberty. Clients are free, though under the defence of their Patrons or Advo­cates; so is an Inferiour people free, though in League with a people superiour unto them in dignity. For they may be under their protection, though not under their jurisdi­ction, as Sylla speaks in Appian. An example we have in the Dilimnites, Ap. Mithridat. who as Agathias tells us, were [...], Free to live by their own Law [...], though they served the Persian in his Wars. This was the design of the Empress Irene, so to divide the Empire among the Sons of her Husband, that the younger Sons should be Inferiour to the Eldest in dignity; but otherwise they should be Independent and Absolute in Power. De Off. l. 2. Cicero speaking of that Golden Age of the Roman Empire, saith, Patrocinium Sociorum penes eos esse, non Imperium; The Romans gave protection to their Friends and Allies, but claimed no dominion over them. Liv. l. 26. With whom agrees that of Scipio Africanus, The People of Rome had rather oblige their Neighbours unto them by Courtesies, than by Fear; and to win foreign Nations unto them by Faith and Friendship, than to subject them to an ungrateful bondage. And what Strabo reports of the Lacedaemonians, after the arrival of the Romans in Greece, saying, They enjoyed their own Freedom, contributing nothing unto the Romans, but the mutual offices of love and friendship. As private Protection takes not away personal Liberty,Protection. so neither doth publick take away Civil, which without Soveraign Power cannot consist. And therefore Livy wisely op­poseth to be under protection unto, to be under Jurisdiction. Augustus Caesar (as Jose­phus relates) threatned Syllaeus King of Arabia, that if he abstained not from injuring his neighbours, he would quickly make him, of a Friend, a Subject; which was the condi­tion of the Kings of Armenia, who being under the Roman [...]urisdiction, retained only the Title of Kings, but not the Power: As did also the Kings of Cyprus and some others, though in name Kings, yet were they Subjects to the Persian Monarchy, as Diodorus calls them. But here it may be objected what Proculus adds,Lib. 16. Four kinds of differences usually arise between Con­federates. But some who belong to our Confe­derate Cities, are with us found guilty, whom being condemned we may punish. But that we may understand these words, we must know, that there are four kinds of differences that usually arise among Confederates. As in the first place, If the Subjects of the King or State under protection, are said to have done any thing against the League: Secondly, If the King or States themselves are accused: Thirdly, If the Associates that are under the protection of the same King, do quarrel one with another: Lastly, If Subjects complain of Injuries done them, by those under whose Jurisdiction they are. [Page 50] If the Controversies be of the first kind, the King or State are obliged either to pu­nish, or to deliver up the Offender to the person injured. And this ought to be done, not only between unequal Confederates, but between equals, even be­tween such as are not linked together by any League, as shall be shewed anon. Nay farther, He is obliged to endeavour that satisfaction be made to the injured person, which in Rome was called the Recuperators office: For the Law (saith Aelius Gallus in Fe­stus) doth determine between King and People, Nations and Foreign Cities, how things by the Recuperator may be restored, and how they may be received, and how private mens cases may be prosecuted in each Nation. For one of the Confederates can have no right directly to ap­prehend or to punish the Subjects of the other Confederate; and therefore Decius Magius, a Campane, being apprehended and bound by Hannibal, and so conveyed to Cyrene, and from thence sent to Alexandria; pleaded, that he was bound by Hannibal, contrary to the Articles of the League, whereupon he was presently set at liberty. As to the second kind of Controversies, One of the Kings or People Confederate hath power to compel the other to keep the Articles of the League, and in case of refusal to punish him; but neither is this peculiar to a League that is unequal, but may be done in one that is equal: For it is enough to justifie any man for seeking a revenge against him that hath wronged him, that he is not subject unto him, as shall be proved anon; wherefore this is also in force even among such people as are not confederated. The third sort of Controver­sies are amongst such as are equally confederated, and these are usually referred to a Dyet or Convention of the States associated, yet not therein concerned: For so the Greeks, the Latins, and the Germans were wont to do, or otherwise referred to Arbiters, or even to the Prince of the League as to a common Arbiter. So in an unequal League it is usu­ally agreed, that the things in controversie shall be discust in that Nation which is supe­rior in the League, wherefore neither doth this argue a superiority in power; for even Kings themselves refuse not to have their own causes sometimes tryed before such Judges, as even themselves have constituted. But of the last kind of Controversies, Associates have no right at all to judge; and therefore when Herod did vehemently accuse his two Sons before Augustus Caesar for conspiring against his life, they took it as a favour he had done them:Jos. Ant. lib. 16. c. 7, 8. Poteras de nobis Supplicium sumere tuo jure, tum qua pater, turn qua Rex; Thou mightest have inflicted what punishment upon us thou wouldst by thine own Right, both as a Father and as a King. And when Hannibal was accused at Rome by some Carthaginians, for stirring up Sedition amongst the Citizens,Val. Max. lib. 4. c. 1. Pol. lib. 1. c. 9. Scipio told the Senate, That it did not be­come them to intermeddle with that which properly belonged to the City of Carthage. And here­in it is that Aristotle puts a difference between a Society and a City, for it concerns con­federate Societies to take care, that no injuries be committed against them; but not that the Citizens of any one of the Confederates do not injure one another. But here again it may be objected, That in unequal Leagues, he that is superior in the League is some­times said to command, and he that is inferior to obey; but neither should this move us: for this is when the things in controversie concern either the common good of both par­ties confederate, or the private profit of him that is superior in that League. As to the things of common concernment,Dan. 11.22. the Assembly not sitting, He that was the Prince of the League (though it were an equal League) did usually command his Associates, as Agamemnon in the Trojan Expedition, did the Graecian Princes, and as afterwards the La­cedemonians did the Graecians, and after them the Athenians. Thucydides in that Oration made by the Corinthians, saith, It very well becomes the Prince of the League, in private mat­ters to deal equally; but in publick to be more than ordinarily sollicitous. Isocrates commend­ing that excellent conduct of the ancient Athenians, in the managing of their social Wars, saith, That they took care for all, without intrenching upon the liberty of any. And in another place he allows them, to Command, but not to Domineer. It is well worth our observation, that what the Latins express by the word Imperare, to command, the Greeks more modestly express by the word [...], to dispose or set in order. The Athenians, to whom the conduct of the War against the Persians was committed, [...], saith Thucy­dides, did order which City should contribute Money, and which Ships: And they that were sent from Rome into Greece, Plinii ep. lib. 8. c. 24. are said to be sent to give orders for the well governing of the free Cities. Now if he that is the principal party in an equal League do thus, it is not to be wondred at, if he that in an unequal League is superior in honour and dignity, do the same: For the word Imperium, that is, Empire, taken in this sence as it signifies only an Ordinance and Appointment, equally conducing to the common good, doth not at all imply the loss of the others liberty.Livy l. 37. The Rhodians, in their Oration to the Roman Senate, thus be­spake them, The Gracians were wont to defend their Empire with their own forces: But their Empire where now it is, they wish that it may remain for ever: They are now well contented to defend their liberties with your Arms, Lib. 15. being no longer able to do it with their own. So Diodorus tells us, that after the taking of the Cadmean Fort by the Thebans, many of the Graecian Cities met and agreed among themselves, That every City in Greece should enjoy its own [Page 51] freedom, yet the conduct of the War should be given to the Athenians. And yet Dion Prusae­ensis speaking of those very Athenians, in the times of Philip of Macedon, saith, That ha­ving at that time lost their command in the War, they retained only their own liberty. So those people which Caesar reckoned to be under the command of the Suevians, he by and by calls his Confederates. But in such things as appertain to his own particular profit, the request of him that is Superior in the League, are usually taken for Commands; not that they are so indeed, but that they are in respect of their usual effects, equi­valent to Commands; for he needs no force, who knows himself to be feared. Ar­matae sunt Regum praeces; The Requests of Kings have the same power as Commands. And a denyal how just soever, shall be by them as ill digested as an injury. It was never heard of, saith Livy, before Caius Posthumius, that any Consul was either chargeable or burdensome to our Associates in any thing; and therefore were our Magistrates supplyed abun­dantly with Mules, Pavilions, and all other Instruments of War, that so they might not re­quire them from our Associates. In the mean time, it sometimes so falls out,The weaker Associates sometimes re­duced unto subjection. That if he that is superior in the League, be much more potent than the rest of the Con­federates, he may by degrees at length usurp the Soveraignty over them; especially if the League be perpetual, and that he hath thereby a right to place Garrisons in any of their strong Towns, as the Athenians sometimes did, when they suffered themselves to be appealed unto from their Associates,Hal. l. 6. Livy l. 34. which by the Lacedemonians was never done: wherefore Isocrates equals the Government that the Athenians exer­cised in those days over their Associates, with that of Kings and absolute Princes. So the Latines in Livy complain against the Romans, that under the specious Title of being Associates in War, they were reduced into a mere Subjection; which So­ciety in Arms, Plutarch in the Life of Aratus, calls a Gentle Slavery. Hist. 4. So Festus Ru­fus in Tacitus, concerning the Rhodians, At first they lived in great freedom, till after­wards the Romans gently urging them, they were brought by little and little into an habit of Subjection. So the Aetolians likewise complained, That they had nothing left them but the bare shadow and empty name of Liberty. So likewise afterwards the Achaians complain, That they had indeed a League in appearance, but were at length brought into a Precarious Servitude. The like complaint Civilis Batavus in Tacitus, makes against the same Romans, That they used them not as formerly, like Companions, but usurped and insulted over them as mere Slaves. And in another place, they falsely called that peace, which was indeed but a miserable Slavery. Thus Eumenes also in Livy, concerning the Confederates of the Rhodians, that they were their Associates in Name, but their Vassals indeed. Thus also Magnetes in Polybius saith, That Deme­trias was in shew free, but in effect all things were done there at the will of the Romans. The Thessalians likewise were in appearance free, but indeed under the dominion of the Macedonians, as the same Polybius testifies. Now when these things are done, and so done as by patient endurance they may by mistake be said to be rightly done, (whereof we shall elsewhere discourse more fully;) then either of Companions they are made Subjects, or certainly there must be a partition of the Supremacy, which (as I have said before) may sometimes happen.

XXII. Of such as pay Tribute.

They that pay any thing either in satisfaction of wrongs past, or to be protect­ed against injuries to come, are by Thucydides called tributary Associates, such were the Kings of the Hebrews, and of their Neighbour Nations after the time of M. An­thony, free; though under a certain tribute: Nor do I see any cause to doubt but that they that Reigned so, had Supreme Power within their respective Dominions, and had a full right to punish delinquents, according to their own Laws. Thus M. Anthony defends King Herod, being accused for murthering Aristobulus, That it was neither just nor right to call a King to an account for what he doth as a King; for if so, he could not be a King: For common equity requires that they that gave him that honour, should permit him the free use of that Soveraign Power, which was appendent unto it. So Chrysostom, When the Empire of the Jews began to decline, and they made Tri­butaries to the Romans; They neither enjoyed that full liberty which they did formerly; nor were they in that pure subjection as now they are: But were indeed honoured with the Title of Associates, yet they paid Tribute to their Kings, and received Governors from them. Moreover, they had the free use of their own Laws, so that if any of their Coun­trymen offended, they themselves punished them by their own Laws. And yet I deny not but even this very acknowledgment of their own weakness and insufficiency, doth somewhat abate and detract from the Majesty of their Empire.

XXIII. Of such as hold their do­minions in Feud.

But that which seems to some to be more difficultly to be answered, is, when one Prince holds his Dominion from another, as being Lord of the Fief; which yet may be sufficiently answered by what hath been said before. For in this Contract (which is peculiar to the German Nation, and no where found but where they have planted themselves) two things are especially to be observed. 1. The personal Ob­ligation. [Page 52] 2. The Right in the Thing so held. The Personal Obligation is the same, whether a man possesseth the very Right of Soveraignty, or any thing else though lying elsewhere, by vertue of the Fief: but such an Obligation as it takes not from a private man the right of Personal Liberty; so neither doth it diminish any thing in a King or State of the Soveraignty, which is Civil Liberty; which is easily to be understood by those Lands which are called Free-holds, which consist in Personal Obligations only, but gives no right in the thing so held: for these are no other than a species of that unequal League whereof we have discoursed before, wherein the one promiseth Fealty, and the other safeguard or protection. But admit they do swear Faith and Allegiance against all men, yet would this de­tract nothing from the Right of Soveraignty over their own Subjects. Not at all in this place to mention, that there are ever reserved in these Oaths, a tacite Condition that the War be just, whereof we shall treat elsewhere. But as to the Right in the thihg so held, it may be such, that the very Right of Governing, if held in the right of the Fief or Fee, may be lost, and so return unto him that gave it; as well in case the Family be extinct, as also for some notorious crimes; and yet notwithstanding in the mean time, it ceaseth not to be the Supreme Power: For as I said before the thing it self is one thing, and the manner of holding it is another. And by this Right I find many Kings constituted by the Romans, so that the Royal Family failing, the Empire did escheat unto themselves, as Strabo observes of Paphligonia and some others.Lib. 12.

XXIV. A mans right distinguisht from the ex­ercise of that right.

Lastly, We must also distinguish as in Private Dominion, so in Empire, between the Right it self, and the exercise of that Right; or between the first act and the second. For as a King (though an Infant) hath a Right to govern, but is not permitted to exercise that Right; so he that is mad, or a Prisoner, or that so lives in a Foreign Country, that he is not permitted freely to act in such matters, as concern the good of that Empire that is remote from him:Vide Bo. 3. ch. 20. §. 3. For in all such cases, they have their Lieutenants or Viceroys to act for them; wherefore Demetrius living under restraint with Seleucus, did forbid any credit to be given to his Letters or unto his Seal;Plut. Demetr. but commanded that all things should be so governed as if he were dead.

I. The Question stated.

PRivate Men may without doubt make war against private men, as the Traveller against the Thief or Robber; so may Soveraign Princes and States against So­veraign Princes, as David against the King of the Ammonites: Private men may make war against Princes, if not their own, as Abraham against the King of Babylon and his Neighbours; so may Soveraign Princes against Private Men, whether they be their own Subjects, as David against Ishbosheth and his party; or Strangers, as the Romans against Pyrates. The only doubt is, whether any person or persons, publick or private, can make a lawful war against those that are set over them, whether as su­preme or as subordinate unto them. And in the first place, It is on all hands granted, That they that are commissionated by the highest powers, may make war against their Inferiors; as Nehemiah did against Tobia and Sanballat, by the Authority of Artaxerxes. But whether it be lawful for Subjects to make war against those who have the Supreme Power over them, or against such as act by and according to their Authority, is the thing in question. It is also by all good men acknowledged, That if the Commands of a Prince shall manifestly contradict either the Law of Nature, or the Divine Precepts, they are not to be obeyed; for the Apostles when they urged that Maxim, Deo magis quam hominibus obediendum, That God is rather to be obeyed than man; Act. 4. unto such as forbad them to Preach in the name of Jesus, did but appeal to a Principle of right reason, which Na­ture had insculpt in every mans breast, and which Plato expresseth in almost the very same words. But yet if either for this, or for any other cause, any injury be offered unto us, because it so please him that hath the Soveraign Power, it ought rather to be patiently tolerated, than by force resisted: For although we do not owe an active obedience to such Commands of Princes, yet we do owe a passive: though we ought not to violate the laws of God or of Nature, to fulfil the will of the greatest Monarch; yet ought we rather patiently to submit to whatsoever he shall inflict upon us for not obeying, than by resistance to violate our Coun­tries peace: The best and safest course we can steer in such a case, is either by Flight to preserve our selves, or resolvedly to undergo whatsoever shall be imposed on us.

II. War against Superiors as such, unlawful.

And naturally all men have a right to repel Injuries from themselves by resisting them, (as we have already said.) But Civil Societies being once instituted for the preservation of Peace, there presently succeeded unto that Common-wealth a certain greater Right over us and ours, so far forth as was necessary for that end: And therefore that promiscuous Right that Nature gave us to resist the Common-wealth, for the maintaining of good order and the publick peace hath a right to prohibit, which without all doubt it doth, seeing that otherwise it cannot obtain the end it proposeth to it self. For in case that [Page 54] promiscuous Right of forceable resistance should be tolerated, it would be no longer a Common-wealth, that is, a Sanctuary against Oppression, but a confused Rabble, such as that of the Cyclops, whereof the Poet thus:

A dissolute Company where all are speakers and no hearers: Like unto that which Valerius re­cords of the Bebricii—

Salust makes mention of a wild and savage people, living like Beasts in Woods and Mountains without Laws and without Government, whom he calls Aborigines: And in another place of the Getuli, who had neither Laws, good Customs, nor any Princes to govern them. But Cities cannot subsist without these, Generale pactum est societatis humanae regibus obedire; All humane Societies, saith St. Augustine, unanimously agree in this, to obey Kings: So Aeschylus, ‘Kings live by their own Laws, subject to none.’ And Sophocles, ‘They Princes are, obey we must, what not?’ To the same Tune sings Euripides, ‘Folly in Kings must be with patience born.’ Whereunto agrees that of Tacitus, Principi summum rerum arbitrium Dii dederunt, &c. Sub­ditis obsequii gloria relicta est; God hath invested a Prince with Soveraign Power, leaving nothing to Subjects but the glory of Obedience. And here also,

Wherewith agrees that of Salust, Impunè quid vis facere, hoc est Regem esse, To do anything without fear of punishment, is peculiar to Kings; for as Mark Anthony urged in Herod's case, If he were accountable for what he hath done as a King, he could not be a King. Hence it is, that the Majesty of such as have Soveraign Power, whether in one or more, is senced with so many and so severe Laws, and the licentiousness of Subjects restrained with such sharp and exquisite torments; which were unreasonable, if to resist them were lawful. If a Souldier resist his Captain that strikes him,An Officer striking must not be struck again. and but lay hold on his Partisan, he shall be cashiered; but if he either break it, or offer to strike again, he shall be put to death: for as Aristotle observes, If he that is an Officer strike, he shall not be struck again.

III. The unlawful­ness of ma­king war a­gainst our Su­periors pro­ved by the Jewish Law.

By the Hebrew Law, He that behaved himself contumaciously against either the High-Priest, or against him who was extraordinarily by God ordained to govern his people, was to be put to death; and that which in the eighth Chapter of the first Book of Samuel, is spoken of the right of Kings, to him that throughly inspects it, is neither to be under­stood of their true and just rights, that is, of what they may do justly and honestly (for the duty of Kings is much otherwise described, Deut. 8.11.) nor is it to be understood barely, of what he will do: for then it had signified nothing that was singular or extraor­dinary,Jos. 1.18. 1 Sam. 8.11. Deut. 17.14. for private men do the same to private men: But it is to be understood of such a fact, as usurps or carries with it the priviledge of what is right, that is, that it must not be resisted although it be not right; for Kings have a Right peculiar to themselves, and what in others is punishable, in them is not. That old Saying, Summum jus, summa injuria, Extreme right is extreme wrong, is best fitted to the case of Kings, whose abso­lute power mak [...]s that seem right, which strictly taken is not so. There is a main diffe­rence between Right in this sence taken,Right differ­enced from Just. and Just; for in the former sence, it comprehends whatsoever may be done without fear of punishment: but Just, respects only things law­ful and honest. And though some Kings there be, who are (what Servius in Cicero's Phi­lippicks is commanded to be) magis Justitiae quam Juris Consulti; More regardful of their honour and duty, than of their power and prerogatives: Yet this doth not diminish their Soveraign Right; because if they will, they may do otherwise without the danger [Page 55] of being resisted. And therefore it is added in that place of Samuel before cited, That when the people should at any time be thus oppressed by their Kings, as if there were no remedy to be expected from men, they should invoke his help who is the Supream Judge of the whole Earth. So that whatsoever a King doth, though the same done by an inferiour person would be an Injury, yet being done by him is Right. As a Judge is said Jus reddere, to do right, though the sentence he gives be unrighteous.

IV. By the Gospel Law.

When Christ in the New Testament commanded, to give Caesar his due, doubtless he intended, that his Disciples should yield as great, if not a greater obedience, as well active as passive, unto the higher Power, than what was due from the Jews to their Kings: which (St. Paul, who was best able to Interpret his Masters words) expounding Rom. 13. doth at large describe the duty of Subjects;Rom. 13.2. charging those that resist the power of Kings, with no less Crime than Rebellion against Gods Ordinance; and with a Judgement as great as their sin. For saith he, They that do so resist, shall receive unto themselves dam­nation. And a little after, he urgeth the necessity of our subjection, Not altogether for fear, but for Conscience, as knowing, that He is the Minister of God for our good. Now if there be a necessity of our subjection, then there is the same necessity for our not resist­ing; because, he that resists is not subject. Neither did the Apostle mean such a necessity of subjection as ariseth from an apprehension of some worse inconvenience that might follow upon our resistance: But such as proceeds from the sense of some benefit that we receive by it, whereby we stand obliged in duty, not unto man only, but unto God; (so that he that resists the power of the Supream Magistrate, incurs a double punishment, saith Plato, First, From God, for breaking that good order which he hath constituted amongst men: and Secondly, From the Common-wealth, whose righteous Laws, made for the preservation of the pub­lick peace, are by resistance weakned, and the Common-wealth thereby endangered. For canst thou believe, saith Plato, that any City or Kingdom can long stand, when the publick Decrees of the Senate shall be wilfully broken, and trampled upon by the over-swelling power of some private men; who in strugling against the execution of the Laws, do as much as in them lyes, dissolve the Common-wealth, and consequently bring all into confusion. The Apostle therefore fortifies this necessity of publick subjection to Princes with two main Reasons: First, Because God had constituted and approved of this Order of Commanding and Obeying; and that not only under the Jewish, but under the Christian Law: wherefore the Powers that are set over us are to be observed (not servilely, superstitiously or out of fear, but with free, rational and generous Spirits) tanquam à Diis datae, as being given by the Gods, saith Plato: or as St. Paul) tanquam à Deo ordinatae, as if ordained by God himself. Which order, as it is originally Gods, so by giving it a Civil Sanction, it becomes ours also; for thereby we add as much authority unto it as we can give. The other reason is drawn ab utili, from profit: Because this order is constituted for our good, and therefore in Conscience is to be obeyed and not resisted. But here some men may say, That to bear Injuries, is not at all profitable unto us, whereunto some men (haply more truly, than appositely, to the meaning of the Apostle) give this answer, That patiently to bear Injuries, conduceth much to our benefit; because it entitles us to a reward far transcending our sufferings, as St. Paul testifies. But though this also be true, yet is it not (as I conceive) the proper and genuine sense of the Apostles words, which doubtless have respect to that universal Good, whereunto this order was at first instituted, as to its proper end; which was the publick Peace, wherein every particular man, is as much concerned, if not much more than in his private. (For what protection can good Laws give, if Subjects may refuse to yield their obedience to them; whereas by the constant observance of good Laws, all estates, both publick and private do grow up and flourish together.Plato.) And certainly these are the good Fruits that we receive from the Supream Powers, for which in Conscience we owe them obedience. For no man did ever yet wish ill to himself. (But he that resists the power of the Magistrate, and wilfully violates the Laws established, doth in effect (as far as in him is) dissolve his Countreys peace,Plato. and will in the end bury himself also in the ruines of it.) Besides, the Glory of Kings consists in the pro­sperity of their Subjects. When Sylla had by his Cruelty, almost depopulated,Plut. Florus. Aug. de Civ. Dei, lib. 3. c. 28. not Rome only, but all Italy, one seasonably admonisht him, Sinendos esse aliquos vivere, ut essent, quibus imperet; That some should be permitted to live, over whom he might rule as a King. It was a common Proverb among the Hebrews, Nisi potestas publica esset, alter alterum vivum deglutiret; Were it not for the Soveraign Powers, every Kingdom would be like a great Pond wherein the greater Fish would alwayes devour the lesser. Agreeable whereunto is that of Chrysostome, Ʋnless there were a power over us to restrain our Inordinate Lusts, men would be more fierce and cruel than Lyons and Tygers, not only biting, but eating and devouring one another. Take away Tribunals of Justice, and you take away all Right, Property and Domi­nion: No man can say, this is mine House, this my Land, these my Goods, or my Servants: Chrys. de Sta­tuis 6. Ad Eph. 5. but Omnia erunt fortiorum, the longest Sword would take all. The mighty man could be no longer secure of his Estate, than until a mightier than he came to dispossess him; the [Page 56] weaker must alwayes give place to the stronger; and where the strength was equal, the loss would be so too. And this would at length introduce a general Ataxy, which would be far more perilous than a perfect Slavery. Wherefore seeing that God hath established, and humane reason upon tryal, approved of Soveraign Empire, as the best preservative of humane Societies, that every man should yield obedience thereunto, is most rational. For without Subjection, there can be no Protection. But here it will be objected, That the Commands of Princes do not alwayes tend to the publick good, Object. and therefore when they de­cline from that end for which they were ordained, they ought not to be obeyed. To which I answer, That though the Supream Magistrate doth sometimes, either through Fear, An­ger, Lust, Covetousness, or such like inordinate passions, baulk the ordinary path of Justice and Equity; yet are these, (happening but seldome) to be passed over as personal ble­mishes, which (as Tacitus rightly observes) are abundantly recompensed by the more frequent example of better Princes. (Besides, the Lives of Princes are to be considered with some grains of allowance, in respect of those many provocations and opportuni­ties they have to offend, which private men have not: All men have their Failings, we our selves have ours; and in case we will admit of none in Kings, we must not rank them amongst men,Kings to be censured with some favour. but Gods. The Moon hath her spots, Venus her Mole; and if we can find nothing under the Sun without blemish, Why should we expect perfection in Kings? He is very uncharitable, that judges of Rulers by some few of their Evil deeds, passing over many of their Good ones. Seeing therefore, that there is in all mens lives, as in our best Coin, an Intermixture of Good and Evil, it is sufficient to denominate a Prince Good, if his Virtues excel his Errors. Besides, to charge the Vices of Princes upon the Government, as they usually do who affect Innovation, is but a cheat: For what is this, but to condemn the Law for the Corruption of some Lawyers: Or Agriculture, because some Husbandmen do curse God for a Storm? Si mentiar, ego mentior, non negotium; If I do lye, (saith the Merchant in St. Augustine) it is I that am to be blamed, not my Cal­ling. And if some Princes do prevaricate in some things, they and not their Function are to be blamed.) But as to Laws, though they cannot be so made, as to fit every mans Case, yet it sufficeth to denominate them good, if they obviate such disorders as are frequently practised, and so do good to the generality of the people. But as to such cases, which, because they rarely happen, cannot so easily be provided against by particu­lar Laws, even these also are understood to be restrained by general Rules. For, though the reason of the Law being particularly applyed to that special Case, hold not; yet in the general, under which special cases may lawfully be comprehended, it may. And much better is it so to do, than to live without Law, or to permit every man to be a Law to himself.Lib. 7. de be­ne [...]. cap. 16. Very apposite to this purpose, is that of Seneca, Better it is not to admit of some excuses, though just, from a Few, than that All should be permitted to make whatsoever they please. Memorable is that of Pericles in Thucydides, Better it is for Private men, that the Common-wealth flourish, Lib. 2. though they thrive not in it, than that they should abound and grow rich in their own private estates, and the Common-wealth pine and wither. For if the whole be ruined, In the general safety each particular is included. every private mans Fortunes must needs be ruined with it: But if the Common-wealth flourish, every private mans estate, though in it self weak, may in time be repaired. Wherefore since the State, if well ordered, can easily support any private mans fortunes; but a private mans estate, though never so well ordered, cannot repair the loss of the Publick State: Why do ye not rather Contribute your utmost care to advance the Publick, than (as ye now do) seek to build your own private Fortunes upon the publick Ruines? Wherewith agrees that of Ambrose, Ea­dem est singulorum utilitas,De Off. lib. 3. quae universorum; The Profit which the Common-wealth receives, redounds to every private man. And that also in the Law, Semper non quod privatim in­terest uni ex sociis, sed quod communi societati expedit, servari debet; Evermore, not that which particularly availeth any one party, but that which conduceth to the benefit of the Common society is to be observed. (When the common people in Rome began to Mutinee by reason of some Taxes extraordinarily imposed on them,Liv. l. 26. Laevinus the Consul exhorted the Senate, to encourage the people by their own example: And to that very end advised every Se­nator to bring into the Senate-house all the Gold, Silver and Brass money he had, that it might be delivered to the Triumviri for the publick service: adding this Reason, If our City overcome, no man needs to fear his own estate; but if it fall, let no man think to preserve his own.) For as Plato rightly observes, What is common strengthens a City; but what enricheth Private Families only, weakens and dissolves it: And therefore it concerns both Princes and Subjects, to prefer the affairs of the Common-wealth, before their own private, (either pleasure or profit.) It is a very true Observation of Xenophon's, He that in an Army behaves himself seditiously against his General, sins against his own life. And no less true is that of Jamblicus, No man should think himself a Loser by what the Common-wealth gains; for every private mans loss is sufficiently recompensed in the Publick Profit. For as in the Na­tural body, so doubtless in the Civil, In totius Salute, Salus est partium; The well being of every part consists in the safety of the whole. But without doubt, among those things that [Page 57] are publick,The General safety consists chiefly in well com­manding and well obeying. the chief and principal is that aforesaid Order of well Commanding and well Obeying; which cannot consist where private Subjects assume that Licence of re­sisting the publick Magistrate: which is excellently described by Dion Cassius, whose words sound much to this sense, I cannot conceive it seemly for a Prince to submit to his Sub­jects; for there can be no safety, where the Feet are advanced above the Head, or where they undertake to govern whose duty it is to be governed. What a dismal confusion would it introduce in a Family if Children should be permitted to despise their Parents, or Servants to dispute the commands of their Masters? In what a desperate condition is that patient, that will not be ruled in all things by his Physician? And what hopes can there be of that Ship, where the Marriners re­fuse to obey their Pilot? Surely God hath ordained, and humane reason upon tryal hath found it necessary, that for the preservation of humane Society some should Command, and some Obey. To the Testimony of St. Paul, we shall add that of St. Peter, whose words are these,1 Pet. 2.17, 18, 19. Honour the King. Servants be ye subject to your Masters with all Fear, and not only to the good and gentle, but also to the froward: For this is Thank-worthy if a man for Conscience towards God endure grief, suffering wrongfully. For what glory is it, if when ye be buffetted for your faults ye take it patiently? But if when ye do well, and suffer for it, ye take it patiently, this is acceptable with God. And this he by and by confirms by Christs own example. Which Clemens also in his Constitutions thus expresseth, The servant that feareth God, saith he, will serve his Master also with all faithfulness, yea, though he be impious and unjust. Whence we may observe two things: First, That under the subjection that servants are in, even to hard Masters, is also couched that of Subjects unto Kings, though Tyrannical. And there­fore, as a little before, he commanded subjection to every humane ordinance; that is, to the Laws and Constitutions of Princes without distinction, (for when that Epistle was written, there were very few Princes that were not Idolaters,) yet submit we must, saith St. Peter, for all that, and that Propter Dominum, For the Lords sake. So what fol­lows in the same Chapter being built upon the same Foundation, respects the duty as well of Subjects as of Servants. And so requires the same Obedience, as well Passive as Active; Such as we usually pay to our Parents, according to that of the Poet, ‘Thy Parents Love if Good: If Bad, yet bear.’ And that also of Terence, ‘To bear with Parents, Piety commands.’ And that likewise of Cicero, in his Oration for Cluentius, Men ought not only to conceal the Injuries done unto them by their Parents, but to bear them with patience. A young man of Eretria, that had been long educated under Zeno, being demanded, What he had learned? Answered, Meekly to bear his Fathers wrath. So Justin relates of Lysimachus, Lib. 15. Lib. 27. That he endured the reproaches of the King with the same calmness of Spirit, as if he had been his Father. Ferenda sunt Renum Ingenia, The humours of Kings must be endured, saith Ta­citus: And in another place he tells us, That good Emperours are to be wished for, Ann. 16. Hist. 6. but what­soever they are, they must be obeyed. So also Livy, As the rage of our Parents, so the cruelty of our Countrey are no ways to be becalmed, but by patience and sufferance: For which Clau­dian highly extols the Persians, who obeyed all their Kings equally, though never so cruel.

V. The practice of the Primi­tive Christi­ans.

Neither did the Practice of the Primitive Christians swerve from this Law of God, which is an undeniable argument that they so understood it. For though the Roman Emperours were sometimes the very worst of men, and deadly enemies to the Christian Faith; yea, though there wanted not such under their Government, who under the spe­cious pretence of freeing the Common-wealth from Tyranny and Oppression, took Arms against them, yet could they never perswade the Christians to joyn with them. In the Constitutions of Clemens we read, Regiae potestati resistere nefas; To resist the power of a King is Impious. Tertullian in his Apology writes thus, What was that Cassius that con­spired against the life of Julius Caesar? What was that Poscennius Niger that in love to his own Countrey, took Arms in Syria, as Clodius Albinus did in France and Britain, against that bloody Emperour Septimius Severus? Or what was that Plautianus, who to set the Common wealth free from Tyranny attempted the life of the same Emperour in his own Pallace? What was that Aelius Laetus, who having first poysoned that Infamous Emperour Commodus, fearing it should not take that effect which he desired, did afterwards hire Narcissus, a strong Wrestler, to strangle him? Or what was that Parthenius (whose fact Tertullian doth so much detest,) who being Chamberlain to that execrable Tyrant Domitian, yet killed him in his own Chamber? What (saith Tertullian) were all these? Surely not Christians, but Romans: Nay so abominated they were by Christians, that Tertullian seems to glory in this, That though Christians were every where reproached as Enemies, nay Traytors to the Imperial Crown, yet could they never find any of them either stained with that crime, or so much as favouring those Treasonable practices of [Page 58] either Cassius, Niger, or Albinius. When St. Ambrose was commanded by the Empe­rour Valentinus to give up his Church to be Garrison'd by Souldiers,See Gratian c. 23. q. 8. though he took it to be an Injury done, not only to himself, and to his Congregation, but even unto Christ himself; yet would be not take any advantage of the commotions that it made among the people, to make resistance. If the Emperour, saith he, had commanded what was in my power to give, were it mine House, Land, Goods, Gold or Silver, how readily should I obey; whatsoever is mine I would willingly offer: But the Temple of God I cannot give away, nor can I yield it up to any man: Cum ad custodiendum non ad tradendum illud acceperim, Since it was committed unto me to defend and to keep, but not to betray. And whereas the peo­ple being enraged thereby, did offer their assistance to repel the Souldiers, he refused it, saying,Lib. 5. orat. in Anxen. Coactus repugnare non novi; Though provoked and compelled thereunto, yet withstand or resist I cannot: Grieve, and weep, and mourn I can: Against Arms, Souldiers, and Goths, I have no other Weapons but Tears: For these are the only Forts and Muniments of a Priest: Aliter nec debeo nec possum resistere, otherwise I neither ought, nor can resist. And pre­sently after, being commanded to appease the Tumult, he replyed, That not to excite them was in his power; but being exasperated and enraged, to appease them was in the sole power of him, who when he pleased, could still the ragings of the Seas, and the madness of the people. And in another place he writes thus,Epist. 33. Will ye hale me to prison, or cast me into chains, I am willing to suffer, neither shall I guard my self with multitudes of people who offer themselves to defend me. Neither would he make use of the Forces of Maximus when offered against the Emperour, though an Arian, and a grievous persecutor of the Church. In imitati­on of whom,Greg. l. 6. Ep. 1. Theodoret. Hist. Eccl. lib. 5. c. 4. Naz. Orat. 1. in Julian. Gregory the Great in one of his Epistles confesseth, That if he would have engaged himself in the death of the Lumbards, that Nation had at that day had neither King, Dukes nor Earls; but had been reduced into extreme confusion. Nazianzen informs us, That Julian the Apostate was diverted from some bloody designs he intended against the Church, by the tears of Christians: Adding withal, That these are our best preservatives against Persecutions. And because a great part of his Army were Christians, therefore his cruelty towards them would have been not injurious to the Church of Christ only, but would at that time have much endangered the Commonwealth: Unto all which we may also add that of St. Augustine, where expounding those places of St. Paul, he saith, Even for the preservation of our own lives, Prop. 74. we ought to submit to the Supreme power, and not to resist them, in whatsoever they shall take away from us.

VI. Inferiour Ma­gistrates ought not to resist the Supreme.

Some very learned men there are even in this age, who accomodating themselves too servilely to the times and places wherein they live, do perswade themselves first, and then others, That though this Licence of resisting the Supreme Power be inconsistent with the condition of private men, yet it may agree with the Rights of Inferiour Magistrates; nay further, that they sin in case they do it not: which opinion is to be exploded, as Se­ditious. For as in Logick there is a Genus which is called Subalterne, which though it be comprehensive of all that is under it, as a living creature comprehends both man and beast; yet hath it a Genus above it, in respect whereof it is but a species: As a living creature is to a body, which comprehends all sorts of bodies, both animate, and inanimate. The like we may say of Magistrates, some are Supreme, who rule all and are ruled by none; others are subordinate, who in respect of private men are publick persons, governing like Princes: But in respect of the Supreme Magistrate are but pri­vate men, and are commanded as Subjects. For the power or faculty of Governing as it is derived from the supreme power, so it is subject unto it, and whatsoever is done, by the Inferiour Magistrate, contrary to the will of the Supreme is null, and reputed but as a private act, for want of the stamp of publick Authority. All order (say Philoso­phers) doth necessarily relate to somewhat, that is first and highest, (from whence it takes its rise, or beginning. Now they that are of this opinion, that Inferiour Magi­strates may resist the Supreme, seem to introduce such a state of things, as the Poets fan­sied to have been in Heaven before Majesty was thought on, when the lesser Gods deny­ed the Prerogative of Jupiter. But this order or Subordination of one to another is not only approved of by common experience, as in every Family the Father is the head, next unto him the Mother, then the Children, and after them the Servants, and such as are under them: So in every Kingdom, Each power under higher powers are—And, All Governours are under Government—To which purpose is that notable saying of St. Augustine, Grat. c. 11. [...]. 3. Qui re­sistit. Observe, saith he, the degrees of all humane things: if thy Tutor enjoyn thee any thing, thou must do it; yet not, in case the Proconsul command the contrary: Neither must thou obey the Consul, if thy Prince command otherwise. For in so doing thou canst not be said to contemn Authority, but thou chusest to obey that which is highest: Neither ought the lesser pow­ers to be offended that the greater is preferred before them, (For God is the God of order.) And that also of the same Father concerning Pilate, Ad Johan. Because, saith he, God had Invested him with such a Power as was it self subordinate to that of Caesar's. But it is also approved of by Divine Authority:1 Ep. 2.1. For St. Peter enjoyns us to be subject unto Kings otherwise, than unto Ma­gistrates: To Kings as Supreme, that is, absolutely, without exceptions to any other [Page 59] commands than those directly from God; who is so far from justifying our resistance, that he commands our passive obedience: But unto Magistrates, as they are deputed by Kings, and as they derive their Authority from them.Rom. 13. And when St. Paul subjects eve­ry soul to the higher Powers, doubtless he exempts not Inferiour Magistrates. Neither do we find amongst the Hebrews (where there were so many Kings utterly regardless of the Laws both of God and Men) any Inferiour Magistrates, among whom some without all question there were both Pious and Valiant, that ever arrogated unto themselves this Right of resisting by force the Power of their Kings, without an express command from God, who alone hath an unlimited power and jurisdiction over them. But on the contrary, what duties Inferiour Magistrates owe unto their Kings though wicked, Samuel will Instruct us by his own example, who though he knew that Saul had corrupted himself,1 Sam. 15.3 [...]. and that God also had rejected him from being King, yet before the people, and before the El­ders of Israel, he gives him that reverence and respect that was due unto him. And so likewise the state of Religion publickly profest, did never depend upon any other hu­mane Authority, but on that of the King and Sanhedrim. For in that after the King, the Magistrates with the people, engaged themselves to the true worship and service of God, it ought to be understood, so far forth as it should be in the power of every one of them. Nay, the very Images of their False Gods which were publickly erected, (and therefore could not but be scandalous to such as were truly Religious) yet were they never demo­lished, so far as we can read of, but at the special command either of the people, when the Government was Popular; or of Kings, when the Government was Kingly. And if the Scriptures do make mention of any violence sometimes offered unto Kings, it is not to justifie the fact, but to shew the equity of the Divine Providence in permitting it. And whereas they of the contrary perswasion do frequently urge that excellent saying of Trajan the Emperour, who delivering a Sword to a Captain of the Praetorian Band, said, Hoc pro me utere, si rectè impero; si malè, contra me: Ʋse this Sword for me, if I govern well; but if otherwise, against me. We must know, That Trajan (as appears by Pliny's Panegyrick) was not willing to assume unto himself Regal power, but rather to behave himself as a good Prince, who was willing to submit to the Judgement of the Senate and people; whose decrees he would have that Captain to execute, though it were against himself. Whose example both Pertinax and Macrinus did afterwards follow, whose ex­cellent Speeches to this purpose are recorded by Herodian. The like we read of M. Antho­ny, who refused to touch the publick Treasure, without the consent of the Roman Senate.

VII. Of resistance in case of in­evitable ne­cessity.

But the Case will yet be more difficult, whether this law of not resisting do oblige us when the dangers that threaten us be extreme, and otherwise inevitable. For some of the Laws of God himself, though they sound absolutely, yet seem to admit of some tacite ex­ceptio [...]s in cases of extreme necessity: For so it was, by the wisest of the Jewish Doctors, expresly determined concerning the Law of their Sabbath, in the times of the Hasamonae­ans: Whence arose that famous saying among them, Periculum animae impellit Sabbatum, The danger of a mans life drives away the Sabbath. When the Jew in Synesius, was accused for the breach of the Sabbath, he excuseth himself by another Law, and that more forci­ble, saying, We were in manifest jeopardy of our lives. When Bacchides had brought the Army of the Jews into a great strait on their Sabbath day, placing his Army before them and behind them, the River Jordan being on both sides; Jonathan thus bespake his Soul­diers, Let us go up now and fight for our lives, for it standeth not with us to day, as in times past. 1 Macc. 9.43, 44, 45. Which case of necessity is approved of even by Christ himself, as well in this Law of the Sabbath, as in that of not eating the Shew-bread. And the Hebrew Doctors pretending the authority of an Ancient Tradition, do rightly Interpret their Laws made against the eating of meats forbidden, with this tacite exception; Not that it was not just with God to have obliged us even unto death, but that some Laws of his are conversant about such matters as it cannot easily be believed that they were intended to have been prosecuted with so much Rigour as to reduce us to such an extremity, as to dye rather than to disobey them, which in humane Laws doth yet further proceed. I deny not but that some acts of vertue are so strictly enjoined, that if we perform them not, we may justly be put to death: As for a Sentinel to forsake his station. But neither is this to be rashly understood to be the Will of the Law-giver. Nor do men assume so much Right over either themselves or others, unless it be when, and so far forth, as extreme necessity requires it. For all humane Laws are so constituted, or so to be understood as that there should be some allowance for humane frailty. The right understanding of this Law,☜ of resisting or not resisting the highest Powers in cases of inevitable necessity, seems much to depend upon the Intention of those who first entred into Civil Society, from whom the right of Government is devolved up­on the persons Governing: Who had they been demanded,☜ Whether they would have imposed such a yoke upon all Mankind as death it self, rather than in any case by force to repel the Insolencies of their Superiours; I much question, whether they would have granted it, unless it had heen in such a case, where such resistance could not be made without [Page 60] great commotions in the Common-wealth, or the certain destruction of many Innocents; for what Charity commends in such a case to be done, may, I doubt not, pass for an humane Law. But some may say, that this rigid obligation to dye, rather than at any time to resist injuries done by our Superiors, is not imposed on us by any humane, but by the Divine Law. But we must observe, That men did not at first unite themselves in Civil Society, by any special Command from God, but voluntarily out of a sence they had of their own impotency, to repel force and violence whilst they lived solitarily, and in Families apart; whence the Civil Power takes its rise: For which cause it is, that St. Peter calls it an humane ordinance, although it be elsewhere called a Divine Ordinance, because this wholesom constitution of men was approved of by God him­self. But God in approving an humane Law, may be thought to approve of it as an hu­mane Law,Barkley Lib. 3. contra Monarchomach. c. 8. and after an humane manner. Barkley (who was the stoutest Champion in defending Kingly Power) doth notwithstanding thus far allow, That the People or the nobler part of them, have a right to defend themselves against cruel Tyranny, and yet he confesseth that the whole body of the people is subject unto the King. Now this I shall easily admit, That the more we desire to secure any thing by Law, the more express and peremptory should that Law be, and the fewer exceptions there should be from it; (for they that have a mind to violate that Law, will presently seek shelter, and think themselves priviledged by those exceptions, though their cases be far different;) Yet dare I not condemn indifferently either every private man, or every, though lesser, part of the people, who as their last refuge, in cases of extreme necessity, have anciently made use of their Arms to defend themselves, yet with respect had to the common good. For David, David's ex­ample. who (saving in some particular Facts) was so celebrated for his integrity, did yet entertain first four hundred, and afterwards more armed men; to what end, unless for the safeguard of his own person, against any violence that should be offered him? But this also we must note, That David did not this until he had been assured, both by Jonathan, and by many other infallible Arguments, that Saul sought his life; and that even then, he neither invaded any City, nor made an Offensive War against any, but lurked only for his own security, sometimes in Mountains, sometimes in Caves, and such like devious places, and sometimes in Foreign Nations, with this resolution, to decline all occasions of annoying his own Countrymen. A Fact parallel to this of Davids, we may read of in the Maccabees: The Macca­bees. For whereas some seek to defend the Wars of the Macca­bees upon this ground, That Antiochus was not a King, but an Usurper; this I account but frivolous: For in the whole Story of the Maccabees, we shall never find Antiochus mention­ed by any of their own party, by any other Title than by that of King; and deservedly: For the Hebrews had long before submitted to the Macedonian Empire, in whose Right Antiochus succeeded. And whereas the Hebrew Laws forbad a Stranger to be set over them, this was to be understood by a voluntary Election, and not by an involuntary Compulsion, through the necessity of the times. And whereas others say, That the Mac­cabees did act by the peoples right, to whom belonged the Right of Governing themselves by their own Laws, neither is this probable: For the Jews being first conquered by Ne­buchadonosor, were by the right of War subject unto him, and afterwards became by the same Law, subject to the Medes and Persians as Successors to the Chaldeans, whose whole Empire did at length devolve upon the Macedonians. And hence it is, that the Jews, in Ta­citus, are termed The most servile of all the Eastern Nations; neither did they require any Covenants or Conditions from Alexander or his Successors, but yielded themselves freely- without any limitations or exceptions,The Jews a conquered Nation. as before they had done unto Darius. And though they were permitted sometimes to use their own rites, and publickly to exercise their own Laws, yet was not this due unto them by any Law that was added unto the Empire, but only by a precarious Right, that was indulged unto them by the favour of their Kings. There was nothing then that could justifie the Maccabees in their taking of Arms, but that invincible Law of extreme necessity, which might do it so long as they contained them­selves within the bounds of self-preservation, and in imitation of David, betook them­selves to secret places, in order to their own security; never offering to make use of their Arms unless violently assaulted.The Kings Person to be spared in the defence of our selves. 1 Sam. 26.9. In the mean time, Great care is to be taken, that even when we are thus enforced to defend our selves in cases of certain and extreme danger, we spare the Person of the King; for they that conceive the carriage of David towards Saul, to proceed not so much from the necessity of duty, as out of some deeper conside­ration, are mistaken. For David himself declares, that no man can be innocent that stretcheth forth his hand against the Lords anointed: Because he very well knew that it was written in the Law,Exod. 22.28. Thou shalt not revile the Gods, that is, the Supreme Judges: Thou shalt not curse the Rulers of thy people. In which Law, special mention being made of the Supreme Power, it evidently shews that some special duty towards them is required of us: Where­fore Optatus Milevitanus speaking of this fact of David, Lib. 2. saith, That Gods special command coming fresh into his memory, did so restrain him, that he could not hurt Saul, though his mortal [Page 61] enemy. Wherefore he brings in David thus reasoning with himself, Volebam hostem vincere, sed prius est divina praecepta observare; Willingly I would overcome mine enemy, but I dare not transgress the Commands of God. And Josephus speaking of David, after he had cut off Sauls Garment, saith, That his Heart smote him: So that he confest, Injustum facinus erat Regem suum occidere, It was a wicked act to kill his Soveraign. And presently after, Horrendum Re­gem quamvis malum occidere, Poenam enim id facienti imminere constat, ab eo qui Regem dedit; It is an horrid act to kill a King, though wicked; for certainly he, by whose Providence all Kings reign, will pursue the Regicide with vengeance inevitably. To reproach any private man falsly is forbidden by the Law, but of a King,Kings must not be revi­led, much less killed, though wicked. we must not speak evil though he deserve it; because as he that wrote the Problems (fathered upon Aristotle) saith, He that speak­eth evil of the Governor, scandalizeth the whole City. So Joab concludes concerning Shimei, as Josephus testifies, Shalt thou not dye, who presumest to curse him whom God hath placed in the Throne of the Kingdom? The Laws (saith Julian) are very severe on the behalf of Princes, for he that is injurious unto them, doth wilfully trample upon the Laws themselves. Misopogoris. Now if we must not speak evil of Kings, much less must we do evil against them: David repented but for offering violence to Saul's Garments, so great was the Reverence that he bare to his Person, and deservedly; for since their Soveraign Power cannot but expose them to the ge­neral hatred, therefore it is fit, that their security should especially be provided for. This, saith Quintilian, is the fate of such as sit at the Stern of Government, that they cannot discharge their duty faithfully, nor provide for the publick safety, without the envy of many. The Laws are severe in the defence of Kings. (And for this cause are the persons of Kings guarded with such severe Laws, which seem, like Draco's, to be wrote in blood,) As may appear by those enacted by the Romans, for the security of their Tribunes, whereby their persons became inviolable. Amongst other wise Sayings of the Esseni, this was one, That the persons of Kings should be held as sa­cred. And that of Homer was as notable,

And no marvel: For as St. Chrysostom well observes, If any man kill a Sheep, 1 Tim. 1. And why. he but lessens the number of them; but if he kill the Shepherd, he dissipates the whole Flock. The very name of a King, as Curtius tells us, among such Nations as were Governed by Kings, was as ve­nerable as that of God: So Artabanus the Persian, Plut. Them. Amongst many and those most excellent Laws we have, this seems to be the best, which commands us to adore our Kings as the very Image of God, who is the Saviour of all. And therefore as Plutarch speaks, Nec fas, nec licitum est Regis corpori manus inferre, It is not permitted by the Laws of God or Man, to offer violence to the person of a King. But as the same Plutarch in another place tells us, The principal part of valour is, to save him that saves all. If the Eye observe a blow threatning the Head, the Hand, being instructed by Nature, interposeth it self, as preferring the safety of the Head (whereupon all the other members depend) before their own: Wherefore, as Cassiodore notes,De Amicitia. He that with the loss of his own life, redeems the life of his Prince, doth well; We are to prefer his life before our own. if in so doing he propose to him­self the freeing of his own soul, rather than that of another mans body: for as Conscience teach­eth him to express his fidelity to his Soveraign; so doth right reason instruct him to prefer the life of his Prince, before the safety of his own body. But here a more difficult question ariseth; as namely, whether what was lawful for David and the Maccabees, Whether Da­vids example and the Mac­cabees, be suf­ficient to ju­stifie Christi­ans in like ca­ses. 1 Pet. 4.12, 13, 14, 15, 16. Christs advice is to flee, where the du­ties of our cal­ling will per­mit, but be­yond that no­thing. be likewise lawful for us Christians? Or whether Christ who so often enjoyns us, to take up our Cross, do not require from us a greater measure of patience? Surely, where our Superiors threaten us with death upon the account of Religion, our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place, to flee, but beyond this, nothing. St. Peter tells us, That Christ in suffering left us an ensample, who though he knew no sin, nor had any guile found in his mouth, yet being reviled he reviled not again; when he suffered, he threatned not, but remitted his cause to him that judgeth righteously. Nay he advi­seth us to give thanks unto God, and to rejoyce when we suffer persecution for our Reli­gion: And we may read how mightily Christian Religion hath grown and been advanced, by this admirable gift of patience, wherefore how injurious to those ancient Christians, (who (living in or near the times of either the Apostles themselves, or men truly Aposto­lical) must needs be well instructed in their Discipline, and consequently walked more exactly according to their rules, yet suffered death for their Faith;) how injurious I say, to these men, are they, who hold that they wanted not a will to resist, but rather a pow­er to defend themselves at the approach of death? Surely Tertullian had never been so imprudent, nay impudent, as so confidently to have affirmed such an untruth,So Tertullian. whereof he knew the Emperor could not be ignorant, when he wrote thus unto him, If we had a will to take our private revenge, or to act as publick Enemies, could we want either numbers of Men, or stores of warlike Provisions? Are the Moors, Germans, Parthians, or the People of any one Nation, more than those of the whole World? We, though Strangers, yet do fill all places in your Dominions, your Cities, Islands, Castles, Forts, Assemblies, your very Camps, Tribes, [Page 62] Courts, Palaces, Senates; only your Temples we leave to your selves: For what war have not we always declared our selves fit and ready, though in numbers of men we have sometimes been very unequal? How cometh it then to pass, that we suffer death so meekly, so patiently, but that we are instructed by our Religion, that it is much better to be killed than to kill? Cyprian also treading in his Masters steps, openly declares, That it was from the Principles of their Religion, that Christi­ans being apprehended made no resistance, nor attempted any revenge for injuries unjustly done them, though they wanted neither numbers of men, nor other means to have resisted: But it was their confidence of some Divine Vengeance that would fall upon their Persecutors, that made them thus patient; Lib. 5. and that perswaded the Innocent to give way to the Nocent. So Lactantius, We are willing to confide in the Majesty of God, who is able as well to revenge the contempt done to himself, as the injuries and hardships done unto us: Wherefore though our sufferings be such as cannot be exprest, yet do we not mutter a word of discontent, but refer our selves wholly to him who judgeth righteously. Lib. 6. Qu. 10. in Joshua. And to the same Tune sings St. Augustin, When Princes err, they presently make Laws to legitimate their errors, and by those very Laws they judge the Innocent who are at length Crowned with Martyrdom. Ep. 166. And in another place, Tyrants are so to be endured by their Subjects, and hard Masters by their Servants, that both their temporal lives (if possible) may be preserved, and yet their eternal safety carefully provided for: Which he illustrates by the examples of the Primitive Christians, Who though they then sojourned upon earth as Pil­grims, and had infinite numbers of Nations to assist them, yet chose rather patiently to suffer all manner of torments, than forcibly to resist their Persecutors: Neither would they fight [...]o preserve their temporal lives, but chose rather not to fight, that so they might ensure unto themselves an eternal. For they endured Bonds, Stripes, Imprisonment, the Rack, the Fire, the Cross; they were flea'd alive, killed, and quartered, and yet they multiplied; they esteemed this life not worth the fighting for, so that with the loss of it they might purchase what so eagerly they panted after, a better. Of the same opinion was Cyril, as may appear by many notable sayings of his upon that place of St. John, where he treats of Peter's Sword. The Thebean Legion,The Thebean Legion. we read, consisted of six thousand, six hundred, sixty six Soldiers, and all Christians, who when the Emperor Maximianus would have compelled the whole Army to sacrifice to Idols, first removed their Station to Agaunus; and when, upon fresh orders sent after them, they refused to come, Maximianus commanded his Officers to put every tenth man to death, which was easily done, no man offering to resist: At which time, Mauritius (who had the chief command in that Legion, and from whom the Town Agaunus in Switzerland was afterwards called St. Mauritz, as Eucherius, Bishop of Lyons, records) thus bespake his Fellow Soldiers, How fearful was I lest any of you under the pretence of defending your selves (as was easie for men armed as ye are to have done) should have attempted by force to have rescued from death those blessed Martyrs? Which had you done, I was sufficiently instructed by Christs own example to have forbidden it, who expresly remanded that Sword into its sheath, that was but drawn in his own defence; thereby teaching us that our Christian Faith is much more preva­lent than all other Arms. This Tragick Act being past, the Emperor commanding the same thing to the Survivors, as he had done before to the whole Legion, they unanimously returned this answer, Tui quidam, Caesar, Milites sumus, &c. We are thy Soldiers, O Cae­sar, we took Arms for the defence of the Roman Empire; we never yet deserted the War, nor be­trayed the trust reposed in us; we were never yet branded with fear or cowardise, but have always observed thy commands, until being otherwise instructed by our Christian Laws, we refuse to wor­ship the Devil, or to approach those Altars that are always polluted with blood. We find by thy Commands, that thou resolvest either to draw us into Idolatry, or to affright us by putting every tenth man of us to death: Make no farther search after those that are willing to lye concealed; but know that we are all of us Christians; all our Bodies thou hast indeed under thy power, but our Souls are subject only to Christ our Redeemer. Then Exuperius being the Standard-bearer to that Legion, thus bespake them, Hitherto, Fellow Soldiers, I have carried the Standard before you in this secular War, but it is not unto these Arms that I now invite you, it is not unto these Wars that I am now to excite your valour, for now we are to practise another kind of warfare; for with these weapons ye can never inforce your way into the Kingdom of Heaven. And by and by he sends this message to the Emperor, Against thee, O Caesar, Desparation it self (which usually makes even Cowards valiant) cannot prevail with us to take Arms. Behold we have our weapons fixt, yet will we not resist; because we chuse rather to be killed by thee than to overcome thee, and to dye innocents, than to live Rebels to either God or thee. And a little after he adds, Tela projicimus, &c. We abandon our Arms, O Emperor, and will meet thy Messengers of Death with naked breasts, yet with hearts strongly munited with Christian Faith. And presently after followed that General Massacre of the Thebean Band, whereof Eu­therius gives this Narrative, It was neither their Innocence, nor their Numbers, that could exempt them from death, whereas in other more dangerous tumults, a multitude though offending, are rarely punished. The same story in the old Martyrology we find thus recorded, They were every where wounded with Swords, yet they cryed not out; but disdaining the use of their Arms, they exposed their Breasts naked to their persecutors: It was neither their numbers, nor [Page 63] their experience in War, that could perswade them to assert the Equity of their cause by their Swords, but placing his example always before them, who was led to the slaughter dumb, and li [...]e a Lamb to be Sacrificed, opened not his mouth; they also in imitation of him, like the Innocent Flock of Christ suffered themselves to be worried and torn in pieces by an herd of Persecuting Wolves. Thus also do the Jews of Alexandria testifie their Innocency before Haccus, We are, as then seest, unarmed, and yet we are accused unto thee as publick enemies to the State. These hands which nature hath given us for our defence, we have caused to be pinnacled behind us, where they are of little use, and our breasts we expose naked to every man, that hath a mind to kill us. And when the Emperour Valens cruelly Persecuted those Christians, which according to the Holy Scriptures, and the Traditions of the Ancient Fathers, profest Christ to be [...], that is, Co essential with the Father; though there were every where great multitudes of them, yet did they never attempt by Arms to secure themselves. Surely,1 Pet. 2.21. wheresoever patience in times of persecution is commended unto us, there we find Christs own exam­ple held out unto us (as we read it was to the Thebean Legion) for our Imitation.Mat. 10.39. As therefore his Patience, so ours, should have no bounds nor limits but death it self.Luk. 12.33. And he that thus loseth his life, is truly said by Christ himself to find it. Thus having suffici­ently proved, That he that is invested with the Supreme Power ought not to be re­sisted. Now I must admonish our Reader of some things, wherein he may mistake, by judging that those men do dash their Feet against this stone, who indeed do not.

VIII. That a free people may make War a­gainst their Prince.

In the first place therefore, Those Princes that are under the body of a people, whe­ther they originally retained such a power, or by some after contract or agreement made with them, as in Lacedaemon; if they do violate the Laws, or wrong the Common-wealth, may not only be by force resisted, but if it be necessary, may be punished with death: As it befel Pausanias King of the Lacedaemonians, of whom Plutarch thus, The Spartans taking to heart the death of Lysander, sentenced their King to death,Plut. vit. Ly­sand. because leaving Lysander out of Cowardise, whom he was sent to relieve, he had fled for safety to Tegra. The like he records in the life of Sylla, The Spartans, saith he, deposed some of their Kings, as being unfit for Government, because they were of low and ab­ject Spirits: Yea, and of Agis he reports, That being their King, yet was condemned, though unjustly. Now seeing that there were in Italy diverse such Kingdoms, it is no marvel that Virgil, having first recorded those many wicked Acts done by Mezen­tius, adds,

Of whom an old Hetrurian South-sayer, spake thus,

IX. Or against King that hath renoun­ced his King­dom.

Secondly, If a King or any other shall renounce his Empire, or manifestly forsake it; against such a Prince or King, after that time, any thing is lawful, that may be done to a private man. But this then we must observe, That he that is careless and negligent only in his Government, cannot thereby only be judged to have forsaken it.

X. Or against a King that would alie­nate his Kingdom.

Thirdly, It was the opinion of Barkley, That if a King would alienate his Kingdom, or subject it to another, he lost it. But here I make a stand, For if the Kingdom be Elective, or descend by succession, such an Act of Alienation is in it self null. And whatsoever is in it self null can have no effects of a just Right. Wherefore, as also of that Kingdom that is barely usufructuary, whereunto I have likened such a King, the opinion of the Civilians is to me more probable, That in yielding up his Kingdom to a stranger he confers nothing: And whereas it is said that the fruits and profits revert to the Lord of the propriety; It is to be understood, after such a time as is prefixed by the Law. Yet notwithstanding, if a King shall really endeavour to deliver up, or sub­ject his Kingdom to another, I doubt not but that in this case he may be resisted: For Empire is one thing, and the manner of holding that Empire another. The alteration whereof the people may hinder; for that is not comprehended under the notion of Em­pire. Whereunto may that of Seneca be not unfitly applyed: Although our Father be in all things to be obeyed, yet not in those things wherein he ceaseth to be a Father.

XI. Or a King that Invades the whole bo­dy of the people in an hostile way.

Fourthly, as the same Barkley observes, If a King shall endeavour, with a mind truly hostile, the destruction of the whole body of the Nation over which he is set to govern, he loseth his Kingdom and may be resisted: Which I grant. For the end of all Govern­ment being for mutual conservation, he that wilfully resolves to destroy, can have no right to Govern. Wherefore he that openly, either in word or deed, professeth him­self an enemy to the whole Nation, is in that very act presumed to abjure and renounce [Page 64] the Government of it. When Scylla had depopulated not Rome only, but almost all Italy, one seriously advised him, that it was fit to spare some, that he might have some to govern; Ʋt essent quibus Imperassent. But this case can hardly be found in any King that is of sound mind, and that governs one only Nation. But in case he govern more than one, it may so happen, that in favour to one, he may endeavour to destroy the other, that so he may plant it with new Colonies.Plut. vit. lib. Grac. Gracchus his Arguments are very Ingenious, whereby he proves, that a Tribune of the people (being therefore accounted sacred and Inviolable, be­cause he is consecrated by the people to defend them) in case he shall endeavour to oppress them, to diminish their power, and to take from them their rights of suffrage; doth thereby actually degrade himself, in not performing that for which that honour was con­ferr'd on him. For to admit (saith Gracchus) that the Tribunes of the people may in some cases imprison their Consul; and yet to deny that the people have a power to take away the Tribunitial power from him that abuseth it, even against those from whom he received it, seeing that both the Consul and the Tribune were by the people created; would be very absurd. The like we find asserted by Johannes Major, namely, That a people cannot abdicate their power of deserting their Prince, in such cases as tend to their manifest destruction. Both which may be very well expounded by what hath been herein already delivered.

XII. And against him who breaks the condition up­on which he was admitted.

Fifthly, In case a Kingdom be confiscate either by Felony committed against him whose the Fief is, or by any clause or condition expresly made and agreed on at his admis­sion to the Kingdom. As in case the King shall do this or that, his Subjects shall then stand absolv'd from all obligation of duty and obedience unto himVid. Marian. de regno Arra­gon.. In this case also a King may recede into the condition of a private person.

XIII. And against him who ha­vlng but one part of the Soveraign power, In­vades the other.

Sixthly, If a King having but one part of the Soveraign power, and the Senate or peo­ple the other, if such a King shall Invade that part which is not his own, he may justly be by force resisted, because in that part he hath not the Soveraign power: Which I be­lieve may take place, although it be said, That the power of making War is in the King. For this is to be understood of a Foreign War; since otherwise, whosoever hath any part of the Supreme power, cannot be denyed a Right to defend his own even by force, which when it happens, even the King himself may justly by the Right of War, lose even his own part of the said Empire.

XIV. And against him, who grants such a Licence in certain cases.

Seventhly, If in the Translation of the Empire it be expresly said, That upon some cer­tain events that may happen it may be lawful to make resistance. For although it could not then be conceived that by that agreement any part of the Soveraign power was intended to have been retained; yet certainly it may be conceived, that some kind of natural Liber­ty was thereby understood to have been reserved to the people, and exempted from the power of the KingThuan. l. 131. in anno 1604. Id. l. 133. an. 1605. de H [...]ngaria.. For possible it is for him that alienates his own Right, to diminish and decurt the Right that he gives by certain clauses or Articles of Agreements, whereof we may find in Histories many examplesMeierum in anno 1339. de Flandr. & Brab & [...]..

XV. An Usurper how far to be obeyed. The Acts of an Usurper binding, and why.

We have hitherto treated of him who hath or had a Right to Govern; now something we must say of him that Invades or Usurps the Government, not after he hath either by long possession, or by Consent or Agreement obtained a Right unto it, but so long as the cause of his unjust acquisition continues. And certainly during the time that he possesseth the Empire, his Acts may have power to bind: But yet, not as they are his, for Right to command he hath none, but upon this presumption, That he who of Right should govern, whether King, People or Senate, had rather that his Laws for that time should be binding, than that the people should live altogether without Laws, and without Judgements, which must necessarily introduce the greatest disorder and confusion. Cicero condemns Sylla's Laws as too cruel against the children of those that were proscribed, in making them uncapable of suing for Honours; yet he thought fit, that those Laws should be observed: Affirming (as Quintilian tells us) that the state of the Common-wealth was so contained in those Laws, that if they were not kept, the Common-wealth at that time could not have subsisted. Florus also concerning the Acts of the same Sylla, saith thus, Lepidus went about to rescind the Acts of this so great a man, and indeed not without cause, if at least, he could have done it, without the ruine of the Common-wealth. And by and by, It was expedient for the Common-wealth, being then sick and wounded, to be governed by any Laws whatsoever, rather than to fret and scarrifie her Wounds by attempting an untimely Cure. Yet notwithstanding at such times, and in such Cases wherein our obedience is not so exquisitely necessary, and yet may help to confirm the Usurper in his unjust posses­sion; If by our disobedience we incur no great danger, we must not obey. But whether it be lawful for the people by force of Arms to deject him that shall thus usurp the Sove­raign power, or to kill him, is disputable.

XVI. An Usurper may be kil­led, during the War, if no contract be made with him.

And in the first place, If he that usurps another mans dominion have not gained it by a Just War, that is, by such a War as hath all the Rights required by the Law of Nations; nor by any contract or agreement made with him, or Faith given to him, but that he [Page 65] holds his possession by force only: The Right of War seems in this case to continue;By the Right of the War continued. and therefore what may lawfully be done against an enemy may lawfully be done against him, whom any private man that hath not given his Faith to him, may lawfully kill. In reos Majestatis, & publicos hostes omnis homo miles est; Against Traytors and publick Enemies every private man, saith Tertullian, is a Souldier. So against such as desert their Colours in the time of War,Tertul. Apolog. it is indulged unto every man to take publick revenge in order to the common safety.

XVII. Or by vertue of some ante­cedent Law.

The same may be said if before such an Invasion there were extant any such Law, authorizing any private man to kill him who dares in his presence commit such or such a fact. As for example, If being but a private man he shall go with a guard about him, or if he shall attempt a Fort, or kill a Citizen uncondemned, or illegally condemn­ed, or if any man shall presume to create a Magistrate without just suffrages. Many such Laws we may read of to have been in force among the Cities of Greece, with whom it was also thought lawful to kill such Tyrants. Such was that Law of Solon in Athens, renewed after his return from Piraeeus, against such as had abolished Popular Go­vernment, or that after such abolition had born any office. The like Law there was also in Rome, called the Valerian Law, against any man that should assume the office of a Magistrate without the peoples consent, making it lawful for any man to kill such a man uncondemned,Plut. Public. as Plutarch relates, where he thus distinguisheth Solon's Law from that of Publicola's: Solon would have such a man legally convicted; but Publicola permitted any man to kill him that usurped the office of a Magistrate without any formal Process. And such was the Con­sular Law, immediately after the Decemviral Government, That no man should dare to create a Magistrate without an Appeal; and he that created such, might by the Laws both of God and Man be killed.

XVIII. By his Com­mission who hath Right to the Empire.

No less lawful it is for him to kill an Usurper, that hath an express Warrant so to do from him to whom the just Right of Government belongeth, whether it be in the King, the People, or the Senate. Amongst whom likewise we may place the Protectors or Guardians of Kings during their nonage: Such as was Jehojada's to King Joas, at whose command Athalia was deprived at once both of her Life and Kingdom, 2 Chron. 23.

XIX. Why an U­surper may not be killed, but in one of these cases.

Now unless it be in one of these Cases, I cannot perceive how it should be lawful for any private man by force either to deject, or to destroy him that usurps the Imperial Dig­nity: Because possible it is, that he who hath the true Right had rather prefer the peace and tranquillity of his Subjects, though under the Usurpers power, than embroil his Countrey in blood, or to vex his Subjects with Civil War, which are the sad and bloody effects and consequences that attend the Murther or Expulsion of Kings, especially if his quarrel be espoused, by either a strong Faction at home, or powerful Friends abroad: Or because it is at least doubtful, Whether that King, People, or Senate, in whom the Right of Empire is, are willing that the matter should be brought to so desperate an issue. And without the precise knowledge of this, all violence of this kind is unjust. It is very true, what Favonius in Plutarch observes, Pejus est Bellum Civile Dominatu Illegitimo; Vita Bruti. An Intestine War is more destructive than any Tyranny. For though the Rage of Incensed Tyrants may produce more Tragical effects upon some particular Families,☜ yet the De­luge of a Civil War spreads farther, continues longer, and leaves more dreadful prints behind it, than any Tyranny. Give me any peace, saith Cicero, rather than a Civil War. Titus Quintus told the Lacedaemonians, Liv. 34. That it would be much better for them to bear with the Tyranny of Nabis, than by endeavouring by Arms to recover their lost Liberty, to make the Tyrants Grave in the ruines of their City. And to this purpose was that prudent advice of Aristophanes, Leo in Civitate non est alendus; si alitus sit, ferendus est: Either not to nourish a Lion, or being nourisht, not to provoke him. It is indeed a very difficult case, and will admit of a strong debate, Whether Peace or liberty be most acceptable:Whether Peace or Li­berty be most eligible. Cicero makes this question, the most difficult of all others in the Politicks to be resolved, Whe­ther our Countrey being opprest by Tyranny, we may attempt to redeem it, although with the dan­ger of its desolation. But it is not for private men to determine what the Common Judge­ment of the people would be in this case, but this we abominate as being grosly unjust: to make our Countries Liberty a cloak for our own Ambition; and to pretend to deliver her, when we intend to inslave her. Sylla being demanded,App. Civit. 1. Why he marcht into his own Countrey so strongly Armed: answered, Ʋt eam à Tyrannis liberem; To deliver it from Tyrants: When he that pretended so to do, was himself the greatest Tyrant.Plut. Catent Major. So Antiochus brought a Mighty Army into Greece, alledging that he came to set Greece at Liberty, when indeed it wanted none. His pretence, was Liberty, but his Intent, Tyranny. Crude­litatem Damnat & crudelitatem init; By condemning Tyranny, he trapans them into it: Cicero Ep. Fam. l. 1. No alterati­ons of Go­vernment without vio­lent commo­tions. It was much better Counsel, that Plato gave to Perdiccas, which Plato thus renders, That he should attempt no more in the Common-wealth, than he could justifie to his Subjects: For that no­thing savouring of force or violence should be obtruded upon either our Parents or our Countrey. To the same sense is that of Salust, Though thou couldst govern thy Countrey or thy Parents by [Page 66] force, and correct at thy pleasure every small offence, yet would it seem harsh and troublesome, espe­cially considering that no violent thing can be permanent, Bello Jug. nor any Mutations of Government, without violent Commotions, War, Rapine, and such like acts of hostility. Not much different from this is that of Statius in Plutarch, Vita Brut. It becomes not a wise or a prudent man to endanger himself in Popular Tumults, amongst either Fools or Knaves. Whereunto we may also not impertinently refer that of St. Ambrose, To deliver the poor from oppression, so it be without raising Tu­mults or Se­dition, is commenda­ble. This also will highly advance thy Credit and Repu­tation, if thou canst rescue the poor out of the hands of the Oppressors, and deliver him that is wrongfully condemned to dye; so that thou do it without raising Tumults or moving Sedition: Lest otherwise thou shouldst seem to do it rather out of an affectation of Popularity and Vain glory, than out of Pity and Commiseration, and so consequently make those wounds deeper which thou shouldest heal. It was the opinion of Aquinas, That the pulling down of Government though Tyrannical, was sometimes Seditious. Neither are we much moved to the con­trary, by that fact of Ehud to Eglon King of the Moabites. For the Scriptures plainly tell us,Judg. 3.15. That God raised up Ehud to deliver Israel: What Ehud did was done by the spe­cial Warrant of God himself. Neither doth it appear, That this King of the Moabites had by Agreement no right of Soveraignty.Nehem. 9.27. For God we read did execute his Judge­ments even against other Kings by such Instruments, as he himself was pleased to raise up to that purpose, as may be collected by Jehu against Joram, 2 Kin. 9.

XX. No private man to be Judge in this case.

But it is especially to be noted, That no private person ought to determine Con­troversies of this nature, but should rather obey the present possessor. As Christ com­manded to pay Tribute to Caesar Mat. 22.20., because his Image made the Money currant; which was a convincing argument that he was in full possession of the Empire at that time: For the Coining of Money was ever the most certain sign of the Possession of the Empire.

I. The princi­pal efficient Cause.

AS in all other things, so in Actions that are voluntary there are three sorts of Causes efficient, that is to say, Principal, Auxiliary, and Instrumental. The Principal efficient cause in a War is for the most part he whose the quarrel is: In a private War, any private person: In a publick, he that hath the publick Power, especially if it be Supreme. Whether a War may be justly undertaken in the behalf of another, not making War, shall be discust hereafter. In the mean time this is most certain, That naturally every man hath a Right to revenge his own quarrel, and for this cause were hands given unto us.

II. Auxiliary.

Neither have we a Right to vindicate our own quarrels only, but we may both lawfully and laudably improve our Right to the vindication of other mens also. They that treat of Offices say truly,Nihil utilius homini homine altero. That there is nothing so usuful and profitable unto man, as ano­ther man. There are several obligations, wherein we stand bound to one another for mutual help and assistance; For kinsmen do usually combine to help one another: So one Neighbour being opprest invokes the help of another: So also do Citizens the aid of their fellow-Citizens. Aristotle thought it a duty incumbent to every man to assume Arms, either to defend himself, in case an injury were offered him; or to assist his Kins­men, his Benefactors, or his Companions, in cases of oppression. And in Solon's esteem, That was the best Common-wealth, wherein every man was as sensible of Injuries offered to another,It was well said of Menander: as if they had been offered to themselves: [...]juriarum si Improbis Auctoribus Reponeremus ultionem singuli, N [...]b [...] pu [...]antes fieri, quod sit alteri, Inter nos juncti, Conspiratis viribus, Non praevaleret Innocentiae Impetus Audax Malorum: Qui custoditi undique Jussique poenas quas merentur pe [...]e, Aut nulli penitus essent, aut pa [...]ci admodum. Hence is that of Plautus, Praetorquete Injuriae prius Collum quam ad vos perveniat: Break the Neck of an In­jury before it comes at us. But though all other obligations should fail, yet it is sufficient that we are linkt together in the common stock of humanity. For, ab homine nihil humani alienum; Nothing that is incident to humane nature, should be to any man strange. De­mocritus tells us, That it is a duty incumbent upon every man, so far as he is able, to succour all that are oppressed with wrong, and not at all to neglect it: For this, [Page 67] saith he, is both just and honest: Which Lactantius thus expresseth, God, saith he, who denyed to all other creatures Wisdom, furnisht them with such natural Muniments, as were sufficient to defend them from violent incursions and sudden dangers: But unto man, being sent into the world naked and unarmed; the better to instruct him in Wisdom, hath God, besides other endowments, given him Natural affection, whereby we are taught to love, cherish, and defend each other, and readily to give and receive aid and assistance one to, and from another, against all outward assaults and dangers whatsoever.

III. Or Instru­mental, as Servants, &c.

By Instruments here, we mean not Arms or such like, wherewith we either offend others, or defend our selves: But such voluntary Agents, as are contented to receive di­rections from others. Such as a Son is to his Father, being a part of himself naturally; or as a Servant to his Master, of whom he is legally a part. For as a part doth not on­ly refer to the whole in the same relation, as the whole is the whole of the part; but this very thing That it is, is the whole: So Possession is said to be something of him that possesseth it. And Servants, saith Democritus, are to be used as we do the members of our bo­dy, some to one purpose and some to another. Now what Servants are to a Family, the same are Subjects to a Common-wealth, and so are as Instruments to him who hath the Su­preme power.

IV. Naturally no man excused from War.

Without doubt, Naturally all that are Subjects may be employed in the War, though some special Laws may excuse some; as heretofore Servants among the Romans, and now every where the Clergy: As the Levites among the Jews were not liable to the duties of War (as Josephus testifies) which Law notwithstanding, as all others of that nature, must admit of the exception of extreme necessity. And let this suffice to be spoken in general concerning Subjects and Servants: For what more especially concerns them, shall be handled in their proper places.

I.

LET Us now proceed to the Causes of War: I mean those that justifie a War; for there are others that excite men to War under the notion of Profit, which are sometimes distinct from those which excite upon the account of Justice; which as well between themselves, as from the beginnings of War, (such as was the Hart in the War between Turnus and Aeneas) Polybius doth accurately distinguish.3 Hist. And though the difference between these are mani­fest, yet are the terms usually confounded: For even these causes which we call justifying, Livy, in the Oration of the Rhodians, calls the beginnings of the War;Lib. 45. Surely ye (say the Rhodians) are those very Romans, who pretend that your Wars are therefore successful, be­cause they are just; and that glory, not in the event, that ye can conquer, but in the beginnings, that ye never make War but upon just cause. And indeed there was hardly ever any Nation [Page 70] that did so long pride themselves in the justice of their Quarrels, as the Romans did. The Romans, saith Polybius, took very great care not to begin a war with their Neighbours; and would have all men believe that they never made war but to repel Injuries. This Dion testifies in that notable comparison he makes between the Romans, and Philip of Macedon, and Antiochus. And elsewhere he tells us, That the Romans took special care that their Wars should be just, nor did they ever decree a War rashly, or without just cause. In the same sence doth Aelian call the Causes of War,Lib. 12. c. 53. the beginnings of War: And Diodorus discoursing of the war between the Lacedemonians and the Aelians, makes the pretences and the be­ginnings of the War to be the same. These justifying Causes of War are the proper Ar­gument of our present discourse,Lib. 8. whereunto that of Coriolanus in Halicarnassensis is perti­nent, Let your first and principal care be, that the ground of all your Wars be pious and just. So is that likewise of Demosthenes, O [...]y [...]th. 2. As in the building of houses, Ships, and such like, the Foundation or Ground-work should be firm and lasting, (otherwise the Superstructures will soon de­cay and totter:) So in all our Enterprizes, Justice and Truth should lay (as it were) the first stone, Lib. 12. if we expect that the success should be honourable. No less pertinent to this purpose is that also of Dion Cassius, In all our Wars let our chief regard be to Justice; for if she lead up the Van, true valour may bid fair for the victory: But if she be wanting, though our first at­tempts flatter us, De rep. l. 3. yet will the end prove inglorious. And that also of Cicero, Those wars are unjust that are undertaken without cause. And therefore in another place he sharply reproves Cassius for passing with his Army over Euphrates, when there was no just cause of War given, which holds true no less in publick wars than it doth in private. Hence ariseth that complaint of Seneca, Do we restrain Homicides, and punish Murderers, and yet esteem the depopulation of whole Nations glorious? Covetousness and Cruelty know no moderation, Com­missions are every day sent out by the Senate and People to execute Acts of Cruelty, and what we privately forbid, we publickly commend. Homicidium cum admittant singuli, crimen est; virtus vo­catur, cum publice geritur; When a private man commits a murder he is punished as a Crimi­nal, but when thousands are publickly taken away and destroyed, it is instantly canonized for vir­tue and valour. It is true indeed, That War being undertaken by publick Authority, like the definitive Sentence of a Judge, hath some effects of R [...]ght (whereof more anon:) But yet are they not altogether blameless, unless there be a just cause to warrant it. Thus was Alexander for invading the Persians and other Nations without cause given, deserv­edly censured by the Scythians in Curtius, and elsewhere by Seneca, for a Robber, and by Lucan for a Thief, by the wise men of India as a Scourge to all Nations, and the common pest of mankind; and before that by a Pirate, for the greater Pirate of the two. So Justin speaking of his Father Philip, saith, That two Kings of Thrace were thrust out, and deprived of their Kingdoms through the fraud and villany of a Thief: Whereunto we may likewise refer that of St. Augustin, Remotâ Justitiâ, quid sunt Regna nisi magna Latro­cinia; Take away Justice, and what are Kingdoms but great Robberies. With whom accords that of Lactantius, Inanis gloriae specie capti, sceleribus suis virtutis nomen imponunt, Being blinded with self-love and vain glory, they miscal all their vices vertues. Nor was Justin Mar­tyr much amiss, when he said, What Thieves do in desert places, the very same do such Princes who prefer Opinion before Truth. Now other just causes of making war there can be none, but injuries: So St. Augustin, The wrongs done on the one side, make the war done on the other side just. So also saith the Roman Herald, I do testifie and declare, that such a people are un­just and have not done us right; thereby intimating, that the people of Rome might justly make war upon them.

II. War made, 1. For De­fence. 2. For Redemption. 3. For Pu­nishment, law­ful.

Now look how many causes there are of civil Actions, so many there are of a just war; for Ʋbi desinunt Judicia, incipit Bellum; Where Judgments cease, War begins. Now at the Law, Suits arise either for prevention of Injuries not yet done, as when Cautions and Securities are required, that no acts of violence shall be offered, nor any damages done us; or for injuries already done, as namely, that they may be recompenced, or the per­son injuring punished. But as to that which comes under the notion of Reparation, it refers either to that which is, or was ours, from whence arise vindications and some per­sonal Actions; or to something that is owing and justly due unto us, whether by some contract or agreement, or for some hurt done unto us, or by the Law, whither also we are to refer those things, which are said to arise, as if they were due by contract or by some wrong done unto us; from which heads arise the other condictions: That which concerns Facts to be punished, requires, First, An Accusation, Secondly, Courts of Judg­ment. Most men assign three just causes of a War, namely, for Defence, for recovery of what is ours, and for punishment: which three we shall find summ'd up by Camillus in his denouncing War against the Gaules, Omnia quae defendi, repetique & ulcisci fas sit; All which may lawfully be defended, recovered, and revenged. In which enumeration, unless we take the word, Recovered, in its larger signification, it will not include the exacting of that which is due unto us; which was not omitted by Plato, when he said, That war might be justly made, not only when a man is oppressed by violence, or when he is pillaged, but [Page 71] when he is fraudulently dealt with, and so deceived of what is his due. Wherewith ac­cords that of Seneca, Aequissima vox est, & jus Gentium pr [...] se ferens, Redde quod debes; [...] h [...]r [...]s. [...] 4. T [...] is a righteous saying, and consonant to the Law of Nations, Pay what thou [...]st. And [...] a clause always inserted in that form used by the Roman Heralds, [...] Quas [...]ec [...] solverunt, nec fecerunt, quas dari, fieri, solvi oportu [...], That they neither gave, [...] what they ought to have given, paid, and done. So likewise S [...]lust in his History, [...] [...]re [...] tium res repeto, According to the Law of Nations, I require what is mine own. A [...] [...]. Serv [...]s [...] Virgils Aeneads tells us, That When the King of the Heralds was sent to denounce war, [...] to the borders of the enemies Country; and after some ceremonies, cryed out with a loud voice, T [...] he denounced War against them for such or such causes; either because they had wronged thei [...] A [...] ­sociates, or because they had not restored something unjustly taken away, or that they had not de­livered up offenders to be punished. And when St. Augustin saith,10 Quest. up­on J [...]s. That just Wars are usu [...]lly thus defined, Quae ulciscuntur injurias, Which revengeth injuries: He takes the word [to re­venge] in its general signification, for that which includes also, To take away; as may [...]p­pear by the words following, which do not express an enumeration of parts, but an il­lustration by examples. So That Nation (saith he) or City may by Arms be assaulted, w [...]ich shall neglect either to punish their own Subjects for injuries by them don [...], or to r store that w [...]ich by force was taken away. And by this light of Nature it was,War d [...]fen­sive. that the King of the In [...]e [...] [...] Diodorus relates) accused Semiramis for the breach of the Law of Nations for [...]king war upon him, without any injury at all done her. For, as Josephus saith,A [...] l. 17. They that [...] to them that live peaceably, do but enforce them into Arms to defe [...]d themselves. Li [...] l. 5. [...]s do the Romans plead with the Senones, that they ought not to have invaded them, i [...] no w [...]ys wronged them: For men, saith Aristotle, do not usually make war, but upon th [...]m w [...]o [...]v [...] [...]st injured them. As Curtius testifies of the Abian Scythians, Lib. 2. the most innocen [...] of all the [...]r­barians, Armis abstinebant nisi lacessiti, They never made wa [...], unless highly p [...]o [...]. And Plutarch of Hercules, That being throughly provoked, he subdued all in his own defence. The first cause then of a just war are injuries not yet done, that threatens immi [...] d [...]ger to our Persons or our Estates.

III. War in de­fence of our selves lawful.

That it is lawful for us to destroy him by war, that would otherwise destroy u [...], o [...] [...]t least draw us into imminent peril of our lives, hath already been proved. Now it is to be observed, That this right of defending our selves doth principally and primarily arise, not from the malicious attempt of the Aggressor, but from the right that Nature gives unto every creature to preserve it self: So that although he by whom our lives are so endangered be without blame, as the Souldier in doing but his duty, or haply a man mistaking me for another, or being mad, or in a dream (as we have read of some to whom it hath thus happened) yet shall not my right to defend my self be thereby taken away. For to justifie me it sufficeth that I am not bound to suffer that which he attempts to do against me, no more than if a wild beast should attempt to worry me.

IV. Yet against the Aggressor only.

But what if some innocent persons are so interposed, that I cannot preserve mine own life either by flight or just defence, unless I either kill or trample upon them, may I justly do it? There are some (even among Divines) that hold I mayCajet. 2. 2. Art. 6, 7, q. 2.: And certainly if we hear­ken to the dictates of Nature alone, she will perswade us to prefer our own safety before our respect to society. But the Law of Charity, especially the Evangelical Law, which commands us to love our Neighbour as our selves, doth not permit it: It was notwith­standing very well said of Aquinas, if it be rightly understood,2. 2. q. 64. Art. [...]. that in a true defensive war, we do not intentionally kill others; not but that it may sometimes be lawful, if all other means of safety fail to do that purposely whereby the Aggressor may die. But that this death was not our choice, nor intended primarily (as in capital punishments) but our last and only refuge, there being no other visible means then left to preserve our own lives, but by killing him that seeks to kill us; nay and even then, he that is thus violently assaulted ought to wish rather that some other thing would happen, whereby the Aggres­sor might be either affrighted or some ways disabled, than that he should be killed.

V. And where the dangers are certain, and immi­nent, and not opinionative only.

It is also here required, that the danger be present and ready instantly to fall upon us [...] As when a man shall furiously assault another with a drawn Sword, or snatch up any weapon with a manifest purpose to kill him, I confess that in this case he may lawfully, by way of prevention, kill him. Thus Phrynichus in Thucydides pleadsT [...]cydides l. 8., He must needs be void of malice, who being reduced by them into so great jeopardy, did attempt this, or that, or any way to free himself, rather than suffer himself to be destroyed by those malicious men: For as well in Morals as Naturals, it is not possible to find a point without some latitude; but they are much mistaken, and so apt to mislead others, who think their own fears, how ever occasioned, sufficient to justifie the killing of any man by way of pre-occupation, as though it were in their own defence. For it was well said of Cicero, De off. lib. 1. That many inconve­niences do usually arise from vain and idle fears, and much mischief we oft-times do unto others, whilst we fansie that the like was intended against us. So Clearchus in Xenophon, I have known many so far transported, either through calumny or suspicion, against those they f [...]ared, that chu­sing [Page 72] rather to prevent dangers than to undergo them, they have most miserably afflicted those who never intended them hurt, nor entertained a thought of evil against them. To the same pur­pose is that of Cato in his Oration for the Rhodians, What we object that they intended to have done against us, shall we by way of Anticipation do against them? It was notably said by Aulus Gellius, To Gladiators preparing for fight, this was the condition proposed; either to kill his Ad­versary or to be killed by him: But the life of man, saith he, is not beset with such hard and un­avoidable necessities, as that thou must either do, or suffer wrong inevitably. For as the same Cicero speaks in another place, Who did ever enact such a Law, or what Common-wealth could ever without manifest danger to it self, so much as tolerate so great an inconvenience, as that one man might lawfully kill another, and then justifie the fact by his own unnecessary fears, as name­ly, lest otherwise he should have been killed by him? Very apposite whereunto is that of Thucy­dides, Lib. 1. What is to come is as yet in the Clouds, uncertain whether it will fall or not; neither ought any man to be so far incensed thereby, as to undertake a present and certain war, for that which is as yet future, and so uncertain. And in another place elegantly describing the many in­conveniences that were likely to ensue upon those seditions which then began to vex the Graecian Cities, adds this as one, That they strove which of them should first commit those villanies, Lib. 3. which they feared another would do before them. Caesar when he had possest himself of the Common-wealth, pleaded in his own defence, That it was the fear of his Adversa­ries that had enforced him thereunto. Cavendo ne metuant homines metuendos ultro se efficiunt, &c. saith Livy, Lib. 3. Pretending to free themselves and their Country from the fear of other men, they voluntarily made themselves formidable; and as if there had been a necessity of either doing, or suffering wrong, we ease our selves of our burdens but oppress others. But against these, that saying of Vibius Crispius, so much celebrated by Quintilian, may be well applyed: Quis te sic timere permisit? Who permitted thee thus to fear? Or that of Livia in Dion, Infamiam eos non effugere, qui facinus quod timent occupant, They can never wipe off the stain from their ho­nours, who commit that wickedness which they fear another would act before them. But what if the dangers that threaten us be not imminent, but future, by conspiracy, or by treache­ry, as by poison, or false accusation, or by false witnesses to procure an unjust Sentence, or the like; I deny that in such cases it is lawful to kill any man, that is, if either the dan­ger may by any other means be avoided, or that it be not sufficiently clear, that it cannot otherways be avoided: For commonly delays afford us many remedies, and produce many accidents which are unexpected, whereby these dangers may be avoided: Inter os & offam, as it were, between the Cup and the Lip. Although there be many, I know, both Lawyers and Divines, that give a larger Indulgence in these cases, yet this other opinion doth not want the defence of good Authors, as being indeed the better and safer of the two.

VI. Or for the de­fence of our Limbs.

But what if the danger threaten the maiming of our limbs only? Surely since the loss of a limb, especially if it be any of the principals, is very grievous and equivalent to the loss of life it self, and such also as may bring us into the danger of death, if it cannot be otherwise avoided, he that shall certainly endanger it may lawfully be killed.

VII. Or for the de­fence of our Chastity.

And without doubt the same may be done in defence of our chastity, seeing that not only in the general repute of the world, but by the Law of God himself, Chastity is aequi­ballanced with life. The Law (saith St. Augustin) gives power to the Traveller to kill the Thief, who would otherwise kill him; and to a man or woman to kill him that shall attempt to ra­vish them, Aug. lib. 1. de lib. Arb. or after the Rape is committed if they can. So Paulus the Lawyer, He that shall slay a Thief or a Ravisher, ought not to be punished, for by a publick and heroick Act, the one defends his Life the other her Chastity. Amongst women that have thus defend­ed their Chastity with the death of him that attempted it, Heliodorus records the noble act of Heraclea, which he calls a Just defence of her honour. Another amongst men we have recorded by Plutarch, Plut. vit. Marii. of one Trebonius, who slew C. Lusius a Tribune of the Souldiers, and Marius his own Sisters Son, for attempting to bugger him; for which fact he was by Marius honoured with a Crown.

VIII. Yet may this defence some­times be lau­dably omit­ted.

Although (as we have said) it be lawful to kill him that is ready to kill me, yet is it more commendable to chuse rather to be killed than to kill, which some grant; yet so that it be with this limitation, that it excepts that person upon whom the safety of many doth much depend. But I cannot judge it safe to impose this so contrary a Law to patience upon all those whose lives are beneficial unto others; and therefore I think it more conve­nient to restrain the exceptions to such only, whose office and duty it is to defend others from violence. As to those whom we have contracted with as our Guards, to de­fend us in our Journeys either by Sea or Land, and to such as are publick Governors, unto whom that of Lucan may not unfitly be applied.

As also that of Curtius, Whilst thou unadvisedly exposest thy life to so many perils, Lib. 10. thou dost not remember how many of thy Subjects lives thou endangerest, which thou oughtest to defend.

IX. Our defence against a per­son publickly useful, unlaw­ful by the Rule of Charity.

On the contrary, It may so fall out, That the life of him that endangers ours, is so beneficial to others, that he cannot without sin be killed; and that not only because it is forbidden by Gods Law both in the Old and New Testament, which we have already pro­ved, where we shewed that the Person of a King is sacred, but by the very Law of Na­ture: For the Right of Nature as it signifies a Law, doth not only respect those things which are agreeable to that which we call Expletive Justice, but it comprehends also the Acts of Fortitude, Temperance and Prudence, as being in some certain circumstances, not only honest and laudable, but strictly due. But unto this that we have said we stand obliged by Charity. Neither am I at all startled from this opinion of mine by what Vasquius urgeth, That the Prince that shall Insult over an Innocent person, doth ipso facto cease to be a Prince; than which, nothing can be said less true, or more dangerous. For as Right and Property, so Soveraignty is not lost by mis-government,Soveraignty not lost by mis-govern­ment. unless some Law doth so determine it. But by what Law was it ever yet decreed, that Kings should lose their Soveraignty, by an offence committed against a private person? Surely there was no such Law ever yet found, nor I believe ever will be: For the condition of Princes would then be very slippery, and the Common-wealth soon fall into Confusion. And as to that which Vasquius layes as his ground work,The errors of Vasquius con­futed. whereupon he erects this and many other such dangerous conclusions; as namely, that all Soveraignty was granted, for the benefit of the Subjects, and not of the King; were it universally true, yet were it nothing to the purpose: For the thing it self doth not then wholly cease, although the benefit or profit thereof doth in some part cease. And whereas he adds, That every man wisheth well to the Common-wealth for his own sake, and therefore every man should prefer his own safety, before that of the Common-wealth, it doth not follow. For although we do wish the preservation of the Common-wealth for our own sakes, because our own safety is included in it; yet do we not wish it only for our own sakes, but for the good of others also. For the opinion of those Philosophers, who hold, that true friendship doth arise out of some Indigency or Insufficiency, is rejected as false and pernicious, see­ing that Man, being a creature naturally sociable, is promptly and of its own nature in­clined unto it. But that I should prefer the common safety before mine own, Charity doth sometimes perswade, and sometimes command me. Plutarch will tell us,Vita Pelop. That the principal part of Valour is, to defend our Defender. And Cassiodore illustrates this, by a ve­ry fit comparison, If the hand, saith he, by its intelligence from the eye, perceive a blow threatning the head, without regard to its own safety, it will interpose it self between it and danger: From whence he infers, That they who to redeem their Prince his life, hazard, nay lose their own, do but the same in the Politicks, which the hand by Instinct doth in the body Natu­ral. It is no marvel, saith Seneca, if Kings and Princes being the Guardians of publick States, be dearer unto us than our own Relations: For if in the Judgement of the Wise, Lib. 1. de Clem. c. 4. the Publick Good be to be preferred before any private mans; It will easily follow, That he that is the Father of our Countrey, deserves to be dearer unto us than the Father of any one Family. Or as St. Ambrose speaks, He that delivers a Nation from desolation, merits more love, De Off. l. 3. c. 3 than he that delivers us from particular dangers. And therefore the same Seneca doth highly commend Calistratus and Rutilius, the one an Athenian, the other, a Roman, who refused to have their own estates restored unto themselves by the publick ruines: Lib. 6. de B [...]n. c. 17. esteeming it much bet­ter to perish by themselves, than to redeem their own lives and fortunes with the destruction of their Countrey.

X. To kill any man for a slight injury not lawful for Christians.

There are also, that hold it lawful to defend our selves from any slight Injuries, as a box on the ear or the like, even by killing him that attempts it. But respect being herein had to Justice meerly Expletive, I cannot dissent from them. For although the Inequa­lity be very great between a box on the ear and death, yet he that shall attempt to injure me, doth therein give me a Right, that is, a kind of Moral power to oppose him without any limitation, so far forth as I cannot otherwise repel or avoid the Evil intended against me. Neither doth Charity by it self seem to restrain us herein, in favour to the Nocent; Li­nus the Musician, provoking his Disciple Hercules with a slight blow, had his brains beaten out by [Page 74] Hercules with his own Harp: and being by some arraigned for the Murder, appeals for his Indemp [...]i­ty to that Law of Rhadamant, whereby he that wounded another, being by him first assaulted, was declared Innocent. But the Christian Law doth clearly forbid it: and Christ himself doth ex­presly charge his Disciples patiently to suffer any such slight injury though reiterated, rath [...]r than to hurt our adversary: How much more doth he forbid them to kill him, to avoid a box on the ear? By which particular Instance, we are sufficiently cautioned against that of Covarruvias, That Mans understanding being well Instructed in what is naturally Right, will not endure, that any thing should in natural reason be permitted, that is not also permitted by God, who is very Nature it self. For God, who is so the Author of Na­ture, that he sometimes acts Freely above Nature, hath a right to bound and to limit us by Laws, even in such things as are in their own nature, Free and Indefinite; much more hath he power to oblige us to that which is naturally honest, though not due. But a wonder it is, That since Gods will is in this point so expresly declared in the Gospel,Navarr. c 15. 4 Henr. de Irre­gul. c. 11. Vict. de Jure Be l [...], n. 5. there should yet be found so many Christians, yea, and those Divines, who main­tain, not only that for the avoiding of a box on the ear, or such like slight Injury, we may lawfully kill our adversary: But that in case he that hath smitten us do fly, yet may we pursue him even to death, for the vindication of our own honor, which seems to be as equidistant from natural reason,Honor, what? as from Christian piety. For, Honor est opinio de excel­lentia, Seen more in patience, than an over-hasty revenge. Honour is an opinion of some Excellency in the person honoured. But he that can bear such an Injury, doth express himself eminently patient, and by that means doth ra­ther magnifie than diminish his own honour. Neither is it much material, That some men of corrupt Judgements do reproach this Vertue by the name of Cowardice. For those shallow heads can neither alter the thing it self, nor lessen the reputation of it. Neither was this the Judgement of the Primitive Christians only, but of the Ancient Philoso­phers also, who ever accounted it an argument of a weak and pusillanimous Spirit, Not to be able to digest an Injury,To kill a man for a slight Injury, tho' naturally lawful, yet is contrary to the Laws of God, and of Charity. as we have elsewhere shewed. And from hence we may collect, how deservedly their Opinion is to be exploded, who hold it lawful by even Di­vine Right, (for that it may be so by the Right of Nature I deny not) to defend our selves even from mean and slight Injuries by even the death of the person Injuring, although we may without any danger avoid him by Flight, or otherwise; Because it is accounted disho­nourable in a Person of Quality so to do: whereas indeed, the scandal is not justly given, but by a popular misprision unjustly taken, and by all those who understand wherein true Wisdom and Valour do consist, to be contemned. And it doth not a little rejoyce me, that herein I have the concurrent opinion of that Excellent Lawyer Charles Moline amongst others to abett me.In addit. ad Alex. Cons. 119. Now what is said of a blow on the cheek, and of Flight, the very same may also be said in all such cases wherein our honour or reputation is not greatly wounded. But what if a man shall speak that of us, which being believed, may blast our credit and esteem with men? Some there are that would perswade us, that we may law­fully kill him also,Pet. Navar. l. 2. c. 3. n. 376. but very erroneously, and against the Law of Nature: For this is no fit means whereby we may hope to clear our Fame, or to repair our good Name being sullied.

XI. To kill any man in de­fence of our goods, by the Law of Na­ture not un­lawful.

Let us now proceed to those Injuries, whereby we are damnified in our Goods or Estates. And if we respect Expletive Justice only, I shall not deny, but that for the conservation of them, the Robber, if need be, may be killed: For as there is some Ine­quality between a righteous man and a Thief; so in the judgement of the Law, the Goods of the Innocent are evenly ballanced with the Life of the Nocent: Whence it follows, That if we respect this Right only, a Thief flying away with stoln Goods, if those Goods cannot otherwise be recovered, may be killed. So Demosthenes in his Oration against Aristocrates, Is it not, saith he, a very sad Case, and contrary to all Law and Equity, that I should not be permitted to use violence against him, who by violence hath dispossest me of my Goods? Neither doth common charity (setting aside the Laws of God and men) hinder me by way of precept, unless it be for things of so small value, as deserve rather to be slighted, than with such eagerness to be prosecuted; which is an exception that some Writers do admit of.

XII. How far law­ful by the Law of Moses.

Let us now see in what sense the Mosaical Law is to be understood, whereunto that old Law of Solon was parallel, which Demosthenes commemorates against Timocrates, from whence was taken the Law of the 12. Tables; and that of Plato also in his Ninth de Legibus. All which Laws do agree in this, That they put a great difference between a Night, and a Day-Thief. But concerning the reason of this Law there is some question; Some are of opinion,The Day-Thief and the Night-Thief distinguished. that the only reason of this Law is, because by Night it cannot well be discerned, whether he that breaks into an house, be a Thief or a Murderer; and there­fore to prevent the worst, he may be killed as a Murderer. Others place the difference in this, That in the night a Thief cannot be known, and consequently the Goods stoln cannot be recovered, and therefore he may be killed. But in mine opinion, the Law-makers had no regard to either of these properly; but rather, that none ought to be kil­led [Page 75] for stealing of Goods directly; yet, that in some cases, the Goods stoln might occa­sion the death of him that stole them; namely, when the Goods stoln cannot otherwise be recovered, but by killing him who is flying away with them. But if I my self in pursuing after my Goods, shall be brought into danger of my life, then it may be lawful for me to redeem mine own life out of danger, though with the hazard or loss of another mans: Neither can it be justly objected against me, that I brought my self into that danger, be­cause I proposed nothing to my self, but either to defend or recover what was mine own, or to take the Thief, which to me is lawful: nor do I injure any in the use of lawful means to a lawful end. But the difference between a Nocturnal and a Diurnal Thief consists in this, That in the Night there can hardly be found witnesses sufficient to testifie the mat­ter of Fact. Therefore in case a Thief be found slain, we do easily give credit to him,In the Night Witnesses cannot prove the Theft. who shall confess that he slew him in his own defence; especially if the slain Thief be found with any offensive weapon by him. For this is by the Hebrew Law required, That the Nocturnal Thief was found digging through an house, as some have translated the Hebrew word; or as others better, with a digging Instrument about him; as the most Learned of them have expounded that place of Jer. 2.34. I am the more easily guided to this Exposition by the Law of the Twelve Tables,A Nocturnal Thief may be killed, if he have any Weapons about him. whereby it is forbidden to kill a Thief that robs by day, with this exception, Unless he shall defend himself with some weapon. Now it is to be presumed, that a Thief that robs by Night, hath weapons about him to defend himself. By Weapons the Lawyer Cajus understands, either Iron, a Club or a Stone: on the contrary, it is the opinion of Ʋlpian, That whereas it is provided by the Law, that he that kills a Thief by Night shall be indempnified, it ought to be understood, in case, that in defending his Goods, he could not otherwise free hims [...]lf from danger. There is therefore (as I said) a strong presumption for him that kills a No­cturnal Thief: But if there were sufficient witnesses to prove, that he that killed such a Thief, was in no such danger, then the presumption would instantly cease, and he that should kill the said Thief, should be held guilty of Homicide. It is likewise pro­vided by the Law of the Twelve Tables, That he that apprehends a Thief, whether by Day or Night, should publish it with an Out-cry (as Cajus instructs us:) that so,A No [...]turnal Thief must be assaulted with an Out-cry. if it might be, both the Magistrate and the people may be called in to assist, and give testi­mony to the matter of Fact. But because such a Concourse cannot so easily be procured in the Night, as in the Day, therefore is more credit given unto him that shall affirm, that he killed the Nocturnal Thief in his own defence. Not unlike is that Hebrew Law in the case of Ravishment, which if committed in the Field, the person ravished was to have been believed; but not so, if in the City: Because there she both might and ought by her clamour, to have called in the Neighbours to her assistance. Not that the Case of Ra­vishment is alwayes to be determined by this Rule, as Philo well expounds this place:A Rape com­mitted in the Field, and in the City, dif­ferenced. For possible it is, that such a fact may be committed in a City without clamour, by stop­ping the mouth: and that in the Field, it may be done with Consent (as in his Book of Special Laws he affirms). But that this Rule is to guide us in ordinary cases of Ravish­ment, moreover admitting the dangers to be equal, yet in the Night, because we can­not so well descry what the dangers are, either for Quality or Quantity, therefore though the dangers may be less, yet the terror must needs be more. Let this also be ob­served, that both the Hebrew and Roman Laws, though they appear severe, yet are they usually addulced by Charity. For they would not willingly punish Theft with death; there being so great a disproportion between Life and Goods, unless the Injured person in striving to recover his Goods, shall be brought in jeopardy of his Life. And Moses Maimonides hath left this Charitable Rule for our Guide, whilst he gives no private man power to take away the life of another, unless it be in the defence of that, which being lost, is irreparable; such as are Life and Chastity.

XIII. How far forth Lawful by the Evangelical Law.

But the Question is, Whether the Evangelical Law, being more Sublime and Spiritual, than either the Jewish or Roman Laws, do not require a more strict and perfect obedience, than those Laws do? And clearly it doth. For if our Blessed Saviour do enjoyn us to part with our Coat and our Cloaks, and if St. Paul admonish us to suffer our selves to be dispoiled of our Goods, rather than contend in Law for them, which is a kind of un­bloody strife: How much more doth that Law expect, that we should rather forbear and forego things though of a greater value, than embrew our hands in our Neighbours blood, he being Gods own Image, and of the same nature with our selves? Wherefore if our Goods, being stoln, may be recovered or defended without the danger of bloodshed, we do well so to do: But if not, we ought rather willingly to lose them, than to stain our hands with the blood of him that robs us: unless the things stoln, be such as are neces­sary for the sustentation of our selves or our families, and which cannot by any Courts of Justice be recovered; because haply the Thief is not known, and that there is some fear,Forte quia fur sit ignotus, & Spes si [...] aliq [...]a sine caede rem abituram. that without bloodshed, the thing will be gone. And although almost all both Di­vines and Lawyers, do at this day maintain, That to kill him that shall attempt to rob us [Page 76] of our Goods is lawful, even beyond those limited bounds, wherein the Jewish and Ro­man Laws permitted it; as namely, in case the Thief being possest of our Goods do fly; yet that this was the sense of the Holy Scriptures in the Primitive Times, I cannot doubt.De lib. Arb. l. 1. Neither did St. Augustin think otherwise, as may appear by these his own words, Quomodo apud divinam providentiam à peccato liberi sunt, qui pro his rebus, quas contemni oportet, humana caede polluti sunt? How can they appear Innocent before Gods Tribu­nal, who for things not worthy a Christians care, can pollute themselves with humane blood? But doubtless in this, as in many other things of the like nature, Cum tempore laxata est disciplina; The ancient discipline of the Church is through age grown feeble; and by little and little, instead of fitting our lives to the strict Rules of the Gospel, we expound those Evangelical Precepts, in favour to the Corruptions of the Age we live in. This ancient discipline although almost forgotten among the Laity,☞ yet was wont heretofore to be strictly observed by the Clergy; but now it is almost, if not altogether laid aside by these also. Thus St. Jerom complains in the Life of Malchus 4 Vid. c. s [...]sce­pimus, de ho­ [...]icid volunta­rio: & Canon. de his Dist. 1., After the Church of Christ began to be governed by Christian Princes, she grew outwardly indeed, more Splendid, but inwardly, less vertuous.

XIV. Whether the Civil Law doth permit only, or ap­prove of this kind of Inter­section.

It is questioned by some, Whether the Law, at least the Civil Law, as it hath power of life and death, in such cases wherein it suffers a private person to kill a Thief, doth so far legitimate the Fact, as to make it altogether blameless? But this I cannot grant. For in the first place, The Law it self hath not the power of death over all its subjects for every offence; but for such Crimes only as deserve death. And very probable is the opinion of Scotus, That it is not lawful to adjudge any man to death, unless it be for such Crimes, as the Mosaical Law punished with death; with this addition only, or for such Crimes, as may be equally emballanced with them. Neither doth the knowledge of the will of God, which alone can satisfie the mind, concerning this so great and weighty a matter, so plainly elsewhere appear, as it doth in that Law of Moses, whereby the Thief is not adjudged unto death. Besides, the Law neither ought, nor usually doth give unto any man a Right to put a Malefactor to death privately, though he deserve it, unless it be for some great and horrible Crime. Otherwise the Authority of Magistrates and Courts of Judicature would soon dwindle to nothing. Wherefore when the Law licentiates a man to kill a Thief, it is to be understood, that it rather tolerates, than approves of the Fact; and that it acquits him only of the punishment, but not that it gives him a Right to do it.

XV. Single Com­bats when lawful.

From what hath been already said, we may collect, that in two cases single Combats may be undertaken by private men without sin. In the first place, If the Challenger shall grant his adversary a licence to sight, and otherwise threatens to kill him immediately in case he refuse. In the next place, when a King or a Magistrate shall give licence to two Malefactors equally deserving death, to try it out by Combat, whether of them shall live: And he that doth so, doth not so rightly perform his duty as he might: For it were much better, if he intended to satisfie himself with the death of one only, to deter­mine, which of them shall dye by Lot.

XVI. Of Defence in a publick War.

What we have hitherto said concerning the Right we have to defend our Persons and Goods, belongs principally to private War, yet so, as it ought also to be applyed to a publick, some respect being had to the difference that is between them. So saith Ammianus, To all that are Invaded by a Foreign Power, Lib. 23. Lib. 5. there is but one Law, and that perpetual; namely, by all possible means to defend their own safety, notwithstanding the force of any Custom. For as Al [...]x [...]nder in Herodotus told his Souldiers, He that is the Aggressor, hath no colourable excuse for his Injustice: But he that defends himself only, gathers Courage from a good Conscience, and fortifies his hopes in this, that he doth not infer an injury, but repel one. Now in a private War, this Right of killing another, is but momentany, and determines as soon as the matter may be brought before a Judge. But in a publick War, which beginneth not, till Justice and Judgement cease, there this Right lasts long, being fomented and perpetuated by such accidents, damages and wrongs, as are every day renewed in the prosecution of the War. Besides, in a private War, we have scarce any other end, than our own de­fence: But the Supream Powers have a Right, not only to defend themselves, but to be avenged on others, whence it is likewise lawful for them; not only to resist certain and present dangers, but to prevent such as seem to threaten afar off: Not directly, for that (as I have already said) were Injustice; but indirectly, by revenging such wrongs as are already begun, although not [...]u [...]ly [...]ns [...]mma [...]e; concerning which, we shall have cause to speak anon.

XVII. When only to curb the power of a Neighbour Prince unlaw­ful.

Neither can we approve of that which some Authors do affirm for truth; namely, That by the Law of Nations, it is a sufficient ground of a Just War, to suppress the over-swel­ling Power of some ambitious Prince, who if let alone, may exceedingly annoy us. That in our ordinary Councils of War,Alb. Gent. lib. 1. c. 14. this usually comes in debate, I grant. But not so much under this Notion, because it is Just, but as it is profitable: So that in case the War [Page 77] for other causes be Just; for this cause it may prudentially be undertaken: And this is all that the Authors before cited do in effect say. But from a meer possibility, that we may hereafter suffer wrong, to conclude a present Right, or a necessity of doing wrong, will prove no good Inference in a Court of Equity.Bal. lib. 3. de rer. divis. For all humane affairs are obnoxius to so many contingencies, that no security can be expected in this life. Against all un­certain and Ignote dangers, our safety consists not in our Arms, but in our Innoxious prudence, co operating with the Divine Providence.

XVIII. Defence in such as have given just cause of War unlawful.

Nor less unsatisfied am I with their Reasons, who affirm, That their Defence is Just, who have given an occasion of a Just War. Because, say they, There are very few that will be contented with such a measure of revenge, as is proportionable to the Injuries they have received. For this very Fear of what is to come, being uncertain cannot justifie us, in the defence of Injuries already done. For so, the malefactor may justifie his resistance of the publick Ministers of Justice, by his fear, that they will inflict a greater punishment upon him, than his Crime deserves. But he that gives just cause of offence, ought in the first place to tender such satisfaction, as in the judgement of unbyassed men, is equivalent to the wrong done; which if refused, then is his defence Just.2 Kings 18.7, 14. &c. 19. Thus did Hezekiah, who for breaking the League which his Ancestors had made with the Kings of Assyria, being threatned with War, confest his fault, and promised to pay whatsoever the said King should impose upon him; which being done, when notwithstanding he was afterwards Invaded with a powerful Army, trusting to the Justice of his Cause, he made his defence, and had the Most High God for his Protector. Pontius Samnis after he had made restitution to the Romans of their Goods, and delivered up the Authors of the War, pleads thus with them, We have I hope appeased the just wrath of Heaven against us for our breach of the League, and am confident that the same Incensed Deities, who have constrained me to make full restitution of whatsoever we have formerly taken away from the Ro­mans, will also plague the Romans for despising the expiation we offer, for the breach of so Insolent a League. And by and by after, What more, O ye Romans, do I owe to you, or to your League, or to the Gods, that are the Impartial Arbiters of Leagues? To whom shall I appeal? Whom will ye accept of to judge of the Causes of your Anger, and of the measures of my sufferings? I refuse no people, no person. So when the Thebans had offered to the Lacedae­monians, all the satisfaction that in equity they could require, and were by them reje­cted; Aristides told them, That the Justness of the War was thereby translated from the Lacedaemonians to the Thebans. The like we read of the Switzers, who in revenge for a Load of Sheep-skins taken from a Merchant of theirs, by the Earl of Romont, having spoiled his Countrey, did afterwards (being threatned by the Duke of Burgundy) offer to restore all they had taken from the said Earl, and to give what further satisfaction the said Duke should require: The refusal of which offer, cost the Duke his life, and the loss of almost all his Jewels and Treasure, as Comines testifies.Lib. 5. ch. 1.

I. The division of what we call Ours.

THat War may be undertaken for Injuries not done, we have seen proved. Now it follows, that according to the order we proposed, we discourse of the Second Branch of the causes justifying a War, namely, for Injuries actu­ally done. And herein, first of Injuries done against that which is ours: Now of that which is ours, Some things are ours by a Right common with all Mankind, and some things are ours, in our own particular Right. We shall begin with that which is ours in common with others. This Common Right is either directly in some Corporeal thing, or to some Acts. Things Corporeal are either such as do admit of no propriety, or such as properly belong to some persons. Of things whereof there is as yet no propriety, some there are that cannot be impropriated, and some there are that may. Now that this may be rightly understood, we must search into the rise or be­ginning of propriety, which Lawyers call Dominion.

II. The original and growth of Propriety.

Almighty God, as soon as he had created the World, did immediately confer a Right ge­nerally to all mankind in things of this Inferiour Nature. And so again when he had renew­ed the world after the Flood, as may be seen Gen. 1.29, 30. and Gen. 9.2.Gen. 1.29, 30.9.2. All things at first (saith Justin) were promiscuously common and undivided to all, and as it were one intire Patrimony bequeathed unto all. Whence it came to pass, that every man did catch whatsoever he would to his own use, and consume what could be consumed. And the free exercise of this Universal Right was then instead of Propriety: For whatsoever any man did thus catch unto himself, no man could take from him without injury. This may be very fitly illu­strated by that Simile which we find in Cicero concerning a Theatre, De s [...]ibus l. 3. which we know is a publick place, and common to all that come; yet may that particular place which I possess be right­ly called mine. There are Seats that are common to all Roman Knights, but that amongst them is mine own, De benefic. l. 7. c. 12. saith Seneca, which I actually possess. Which state of things might very well have lasted, had men either persisted in the same inoffensive simplicity, or could they have embraced each other with the same mutual endearments of charity. An experi­ment [Page 79] of the former we have in some people of America, A Commu­nity of all things. who have continued in that happy Communion for many ages, with admirable simplicity: And for those that lived in the like Communion, through Charity, we have the like precedents in the Esseni, and in the Primitive Christians at Jerusalem, and their followers, the Pythagoreans; Gell. l. 1. c. 9. ad finem. Porphyr. Diog. Laert. and now also in not a few, who lead lives purely Monastical. The nakedness wherein our first Parents were created, did sufficiently evidence their simplicity, which consisted rather in their Ignorance of Vice, than in their knowledge of Vertue: As Trogus testifies of the Scythian. The men of the first age (saith Tacitus) were free from inordinate affections, The Simplici­ty of the first age, wherein it consisted. Ep. 90. untainted with wickedness, clear from any thing that might occasion reproach; and consequently without restraint or punishment. Thus Seneca also testifies of them, They were, saith he, ignorantly Innocent: And afterwards, speaking of the four Cardinal vertues, he adds, Some resemblances of all these, there were in that plain and simple life they led: As having their minds distracted with no manner of Cares: As Josephus testifies, And to the same purpose writes Macrobius, At the first the Conversation of men was with such an Innocent Simplicity, as had no commixture at all of evil in it, being altogother unacquainted with that guile and subtilty that now rageth in the World. The Wise man terms it Sincerity; [...]. Wisd. 3.24. [...]. and so doth St. Paul, Eph. 6.24. and sometimes it is called singleness, which is opposed to craft and subtilty. They then made the worship of God their only care, which was symbolized by the Tree of Life or Divine Wisdom, Prov. 3.18. As Philo, Arbor vitae. and the learned among the Jew [...] explain it; with whom agrees St. John, Apoc. 22.2. Their dyet was as simple as their lives; for they fed on nothing but what Nature liberally afforded them,See Ecclus. 40.17. And of the four Ri­vers. Ecclus. 24.55. The Tree of Knowledge of Good and E­vil, what it signified. Eccl. 7.29. with­out Cultivation. But in this Innocent Simplicity they continued not long, but wan­dring in devious paths, and making every day new experiments, they became by de­grees acquainted with Sin, which stands Emblem'd out in Scripture by the Tree of Knowledge of Good and Evil, that is, of those things which they had power to use well or ill: which Philo calls [...], an Intermediate Prudence; or a Prudence which is conversant about things in themselves Indifferent. Whereunto Solomon had respect, when he tells us, That God made man upright, that is, Simple, but he hath found out many Inventions: Which Philo expounds, Many subtle Devices; Which, as Dion Prusaeensis ob­serves, were no whit to those that succeeded to our first Parents, advantageous as to Life; For they made use of their Sagacity not so much to fortifie themselves with Justice and Temperance, as to corrupt themselves by voluptuousness. Those most ancient Arts, as the Tilling of the Earth, and the depasturing of Cattle were first exercised by the first brethren, not without some kind of distribution of the Fruits. This diversity of Arts begat a kind of Emulation, and this ended in Murther. And afterwards, when by Conversation the bad infected the good, there grew up a Race of men, who for their violence and oppression,The Age of the Giants. were called Gyants; which the Greeks called [...], because they observed no other rule of Justice but their own strength, and therefore thought all to be their own, which they could conquer. But the World being cleansed from blood and rapine by the Deluge; Lust, inflamed with Wine, succeeded to Cruelty, and brought forth Incest, and such like unnatural Coitions. But that which especially blew the Coals of discord among Princes and Nations, was that Heroick Sin of Ambition,Ambition. Gen. 13. whose Emblem was the Tower of Babylon; whence the division of Tongues caused their dispersion into several Countreys; some possessing one part of the Earth, and some another. But yet still among Neigh­bours there remained a Communion not of Cattle, but of Pasturage; for so large a pro­portion of ground (being but thinly peopled) might without any Inconvenience, suffi­ciently supply all their necessities.